that is naught for it is a several Lease of their Moities and you must declare Quod cum one of them demised one moity and the other the other moity and good If a Tenant in Socage hath Issue and die his Issue being under the age of 14. years the next Freind of the Heir to whom the Inheritance cannot descend shall have the Guard of the Land untill the Heir come to the age of 14. years and he is called Guardion in Socage and in pleading a Lease for Life you are never to alleadge the place where the Lease was made because it passeth by Livery which was executed upon the Land He that pleads a Demise ought to shew that the Lessee entred and he that pleads a Descent ought to shew that he entred and an Exchange is a good Plea in Bar but it shall never be adjudged a good Exchange except this word Escambium be used in the Charter of Exchange HOpkins versus Radford A Defendant shall take no benefit of his own wrong In Sir James Harringtons case the Original was returned Quinque Pasch and the issue joyned that day and the Venire facias returned that day and held naught by the Court upon the first motion A future Lease cannot be surrendred but drowned For things in Action a Deed of Gift is void as Debts without Specialty although he say Goods Chattels and Specialties but for other Debts by Specialty and Goods it is good and for the Debts in Action after the Death of the Party Administration is to be granted and the Administrator is to have the Goods RAiner versus Mortimer One had Judgement upon a Scire facias to have Execution and a Capias ad satisfaciendum returnable 15. Martini and that Writ was returned Album Breve and a Testatum thereupon and the Defendant taken and this matter was moved to the Court and a Supersedeas prayed that the Testatum issued out erroneously because the Capias was not returned and it was granted by the whole Court because the Capias was not returned One seised in Fee may bargain and sell grant and demise Land to others and their Heirs to the use of one for years because he hath a Fee-simple but Lessee for years cannot bargain and sell his Lease to the use of one for years If a Marriage is intended between two men and one of them in consideration that the other hath upon the Marriage assured Land to his Son he doth assume to pay to my Son such a Summ immediately after the Marriage if the Money be not paid the Son must have the Action and not the Father MIch 5. Jacobi 61. One Jury-man appear in Court and when he came to the Barr to be sworn he informed the Court that he was eighty years old and prayed to be dischargâ—d and the Court could not grant it nor pass him by and swear others without committing Error except the Parties would consent for it is Error to skip a Juror who is returned if he appear and therefore the Juror was drawn by the consent of the Parties TRin. 6. Jacobi Upon a Levari facias out of a Court Baron Goods cannot be sold without a Custome to sell the Goods and if Goods be attached by Pone out of a Court Baron the Defendant shall not lose his Cattle otherwise it is if it be a Process out of the Common Pleas then the Defendant loseth his Cattle for not appearing if you lay that you have a Court time out of minde to be held before a Steward you must shew what Pleas you have used to have Conusance of A Sheriff returned but 21. onely upon a Venire facias and at the Triall ten onely appeared and a Decem tales was awarded and tried and Verdict for the Plaintiff and this matter was moved in Arrest of Judgement for that the Sheriff had returned but 21. and the Court were of opinion that if 12. of them had appeared that it had been good notwithstanding but because 10. onely appeared of the principal therefore it was naught and Judgement arrested for that cause If a Juror be sworn of the principal and the Jury remain when the Jury comes again he shall be sworn again TRin. 6. Jac. rotulo 251. Dunnall versus Giles A special Verdict and the Question was a man being possessed of a terme devises the whole terme to A. for Life and if he dies within the terme to B. during the minority of C. and that C. when he comes to full age shall have the Remainder of the terme and held a good Devise To devise Land or Terme or Lease all one it is an Executory Devise If one surrender Land to the use of an Estranger that is to resty the use in Reversion for the Land is in him immediately If a man hath a Rent in esse you cannot grant that in Reversion after your Death but if I surrender to the use of one after my Decease is not good by his opinion of Warburton and Daniel If the Sheriff shall by vertue of a Fieri facias levy the Debt and Damages of a man and make a Return that the said Goods remain in his hands for want of Buyers the Property remains still in the Defendant although the Sheriff hath Possession of the Goods A Sheriff may sell Goods levied upon a Fieri facias out of his County In Watermans case the Issue was whether a Copy-holder in one Town had Common in Land lying in another Town and the Plaintiff shews that he is Lord of the Hundred of C. within which Hundred one of the Villages lie and prayes a Venire facias of the Town next adjoyning to the said Hundred and it was granted and tried and Exception to the Triall for that the Venire was not of both Villages An Alien born being no free Denizen may defend and bring a Writ of Error and it is no Plea to say that he is an Alien born Note by the Common Law the Lord of the Mannour may come and take away a Tree cut down upon the Copy-hold Land by his Copy-holder without laying a special Custome for it If there be an unlawfull Marriage as the Brother doth marry his Sister and they have Issue and one of them dieth before any Divorce had between them now after the Death of one of them the Issue cannot be bastarded as in Cordies case 39 E. 43. 22 E. 4. After a general Imparlance one cannot plead an Outlary in Barr to an Action of Trespass or Case but it must be pleaded in abatement except he be outlawed after the last Continuance for you shall plead nothing in Barr but what goeth to the pit of the Action now the Damages in Trespass or Case are not forfeited by Outlary as Debt because of the incertainty To the Owner of the Soil on both sides of the way of common right belong the Trees that grow in the Lane whether
certain Day specified in the Condition The Defendant pleads that the Plaintiff at the Day of Payment accepts of another Bond for the Payment of the said Money in satisfaction of the said 52. l. 11. s. and upon a Demurrer held to be a naughty Plea for one Bond cannot overthrow another LEa versus Pain Hill 14. Jacobi rotulo 953. An Action of Debt brought upon an Obligation with a Condition to perform an Award the Defendant pleads that the Arbitrators made no Award The Plaintiff by way of Replication sets forth an Award that the Arbitrators did arbitrate of all matters untill the Date of the Award which was a Moneth longer then the Submission and so pretends they exceeded their Authority The words were for all causes before the Date of the Award Another Exception was because the Arbitrators awarded that the Defendant should pay the Plaintiff such a Day of April and doth not say what year or next following and the Court held that good enough because the second Day of Payment was made to be such a Day and such a year and it was held good enough for if any new matters did arise between the Submission and Award or c. the Defendant ought to shew it Another Exception was that it was not said that the Award was made between the Parties but it shall be intended to be made between the Parties because the Award was made de super praemissis and therefore it shall be implied that it was made but of such things as they had power to deal in The Court was of opinion that the Award being de super praemissis the Court shall not say but that this was a cause submitted and except it had been discovered by pleading that there was a new cause since the Date of the Award which was made known to the Wardsmen the Court is not to take notice thereof SCot Executor versus Herbert The Plaintiff in his Declaration sayes the Testator in his life-time was possessed of Land for a terme of years and so possessed grants part of his terme to an Estranger reserving Rent and he grants his Estate to the Defendant And that the Testator died possessed of the Reversion of the terme and because the Rent was behinde the Executor brings his Action of Debt for the Rent and the Declaration was held naught for that it did not appear that he that made the first Demise was seised in Fee or in any other Estate by which he could make a Lease NOrris and Trussell Wardens of the Society of Weavers in the Town of Newbury in the County of Berks versus J. Scapes Pasch 14. Jac. rotulo 907. An Action of Debt brought and the Plaintiffs declare that Queen Elizabeth had incorporated them by such a name and given them Power to make by-laws for the better governing their Corporation c. and further shew that they made an Order which was confirmed by the Justices of Assise according to the Statute of 19 H. 7. and for the Breach of such Order brought their Action the Defendant pleaded that he owed them nothing and tried and a Verdict for the Plaintiffs and Hutton Serjeant moved in Arrest of Judgement and took three Exceptions the first because the Constitution was against Law to restrain one to exercise a lawfull Trade The second the Constitution was that the Offender should forfeit such a summ and it did not appear to whom this Forfeiture should go Thirdly the Plaintiff shews in his Count that the Queen by her Letters Patents had appointed A. B. C. to be Wardens for one year and shews not which those that brought the Action were elected which ought to be to intitle them to that Action It was against sense to barr all their own Apprentices it doth not appear how many Wardens should be and they do not intitle them to the Action by the Corporation the Law is altered and Judgement was given for the Defendant BRet versus Averder Mich. 29. 30. Eliz. Debt brought upon an Obligation to perform an Arbitrement the Defendant confesses the Arbitrement but pleads in Barr that the Plaintiff did not require him to make Payment and to that Plea the Plaintiff demurrs and it was adjudged no Plea for the Defendant at his perill ought to make Payment and the Plaiutiff ought not to make a Request HAles versus Bell Trin. 39. Eliz. rotulo 1974. The Plaintiff brought an Action of Dèbt upon an Obligation with a Condition for the Payment of 40. l. within fourteen Dayes next after the return of one Russell into England from the City of Venice and then the Obligation should be void the Defendant pleads in Barr that the said Russell was not at Venice upon which Plea the Plaintiff demurrs and adjudged a naughty Plea for where part is to be done within the Realm and part out of the Realm the Plea ought to be triable within the Realm GArret versus Harrison Executor Trin. 40. Eliz. rotulo 1651. To an Action of Debt upon a Bond brought against him as Executor the Defendant pleads six Judgements in Barr the Plaintiff replies that they were by fraud and covin and the Jury found for the Plaintiff that two of the six were by covin and Williams moved in Arrest of Judgement because the Jury ought to have found all but Glanvile said that if any part of the Plea be insufficient defective or false the Issue shall be found against you for your Plea is one intire thing and he said that the Plaintiff should have taken Issue upon one onely as in an Obligation with diverse things in the Condition Walmsley held that by the Plea the Defendant had confessed implicatively that you have sufficient to satisfie those six Judgements and no more So that if any part be found against you this is Assets and Judgement was given accordingly for the Plaintiff GReen versus Wilcox Executor To an Action upon an Obligation brought against the Defendant as Executor he pleads that the Testator was obliged to A. in 20. l. which remained due to him at his Death and that the said A. recorded against him in the Common Pleas and averres that it was a true Debt and the persons and matters to be the same and that he had no Assetts beyond that and the Plaintiff replies that the said Recovery was had by fraud and covin between them to defraud him of his Debt to which Plea the Defendant demurrs specially because he had in his Plea averred it was a true and just Debt so that it could not be by covin Trin. 44. Eliz. It was adjudged for Law by the whole Court that if a Fieri facias be directed and delivered to the Sheriff he may not break the outer Door of the House and enter and do Execution but if the outer Door be open then he may enter by that and then he may and ought to break the Door of an Entry or Chamber which is locked and break
hath the Copy-hold Estate for life in remainder was the question And it was argued by Harris Serjeant that the Estate of Fines in the body of that binds all persons but onely some which have Infirmities and by the saving Rights Titles Claimes and Interests are saved But Title comes in the conditionall perclose of saving that is so that they pursue their Title Claime and Interest c. By way of Act or lawfull Entry within five yeares next after the said proclamations had and made So that in this case the principall matter to be considered is what thing is operated by the acceptance of the Bargaine and Sale for if by that the remainder of the Copy-holder be turned to right then insues that the Fine shall be a Barr And it seemes that this determines the first Estate for life and he agreed that it cannot be a surrender insomuch that there is a mesene remainder as it is 37. H. 6. 17. b. 4. H. 7. 10. But this Lease to commence at a day to come cannot be a surrender but shall be determined and extinct by acceptance of a new Lease as it is there and in 22. H. 7. 51. a. agreed and so it was adjudged in Hillary 30. Eliz. between Wilmottand Cutlers Case that if a Husband which was seised of a Copy-hold Estate in right of his Wife accept an estate for life this determines the copy-hold Estate which he hath in right of his Wife in possession So if Lessee for yeares accept an estate of one which hath no Estate yet this determines his Tearme as it was adjudged Hillary 31. Eliz. Rot. 1428. b. That if Lessee for yeares of a Lease made by the Ancester accept an estate of Guardian in Soccage this determines his Lease which he had of the Ancestor and upon that he concluded that in this case the acceptance of a Bargaine and Sale turnes the Copy-holder in remainder to a Right and then it appeares by Saffins Case 5. Coke 125. That he shall be bound though that he hath only Interest and so of Title also and he said that it appeares by Kite and Quarintons case 4. Coke 26. a. that a Right or Title may be of Copy-hold Estate for it is there said by Wray cheife Justice that it shall be with in the Statute of 32 H. 8. chapter 9. of buying of Titles and so concluded Dodridge the Kings Serjeant agreed that the sole question is if any thing be here done to turn the Copy-hold-Estate in remainder into a right for then he agreed that this shall be barred otherwise not and to that hee intended that the first Estate for life shall be sayd to be in Esse notwithstanding the acceptance of the Bargaine and Sale as to all estrangers and especially when it is to their prejudice as if Tenant grant Rent and after surrenders his estate now between the parties the Lease shall be extinct by the surrender but to the Grantee of the Rent it shall be sayd to be in Esse and if during his life he in Remainder also grants a Rent hee shall hold the Land subject to both the Rents though that the grants be both to one self sameperson so if he in Reversion grants his Reversion with warranty and after the Tenant for life surrenders and the Grantee be impleaded he shall never vouch during the life of the Tenant for life 5 H. 5. Comment 24 Ed. 3. And here also is a custome which preserves the Copy-hold Estate in Remainder and their particular Tenant cannot that prejudice and for that also it shall not be turned into a right as if a Copy-hold Estate be granted to one for life by one Copy and after the Lord grants another Estate for life by another Copy to another and then the first Copy-holder commits forfeiture he which hath the second estate cannot take advantage of that but the Lord shall hold it during the life of the first Tenant for no act made by the particular Tenant shall prejudice him in Remainder for otherwise many Inconveniencies would insue upon that as by secret conveyances or as if a grantee of a Rent charge grant that to the Tenant of the Land for his life the Remainder over the Remainder shall be good notwithstanding that the particular Estate bee extinct and drowned also he intended that the Copy-hold Estate is another thing then the land it self and for that the Fine shall not be a Barr no more then in Smith and Stapletons Case Com. Where a Fine levied of Land shal not be a Barr of Rent insomuch that it is another thing so in this case he intended that the fine shall not be a Barr of the Copy-hold Estate and concluded c. Wynch Justice was of opinion that the Fine shall not be a Barr to the Copy-hold Estate in Remainder for the acceptance of the Bargaine and Sale doth not determine the first Copy-hold Estate for life as to him in Remainder but only to the first Tenant and the Lord and betweene those he agreed that the Copy-hold Estate is determined as in Heydens Case by acceptance of a Lease for years and for that the Remainder shall not be turned to a Right and by consequence shall not be barred and for that he supposed that the reason that the Fine was a Bar in Saffins Case 5 Coke 123. b. was insomuch that the Lessor entered made a Feoffment and after levied a Fine and it is there agreed that the Feoffment turnes the Estate of the Lessee to a Right and for that the Fine shall be a barr and also there the Lease was by limitation of time to have a beginning but if a man makes a Lease for years to begin at a day to come and before the beginning of that makes a Feoffment or is disseised and Fine with proclamation is levyed yet he which hath future Interest shall not be barred for this is not turned to a Right and it was not the intent of the Statute of Fines to make a Barr of right where there was no discontinuance or Estate at least turned to right and this was the cause that at the Common Law Fine with Non-claime was no Barr but where they make alteration of possession and he cited Palmers case to be adjudged that a Fine of Land shall not be a barr for Rent where the case was Lessee for life Remainder for life of Rent The first Lessee for life of the Rent purchaseth Land and levies Fine of that and adjudged that this shall not binde them in Remainder of the Rent no more if he in remainder levy a fine that shall not prejudice the particular Tenant and so he concluded in this case that the Ramainder shall not be barred and that the Plaintiff shall have Judgment Warburton Justice accordingly and he argued that the Statute of Fines containes two parts The first to barr those which have present right and they ought to make their claim within five yeares after the Fine levied or otherwise they
is appurtenant or appendant the Grantee shall have Common Pro Rata but if a commoner purchase parcell of the Land in which he hath Common appurtenant that this extincts all his Common And it was agreed that Common may be appendant to a Carve of Land as it appeares by the 6 Ed. 3. 42. and 3. Assise 2. as to a Mannor but this shall he intended to the Demesnes of the Mannor and so a Carve of Land consists of Land Meadow and Pasture as it appeares by Tirringhams case 4. Coke 37. b. And Common appendant shall not be by prescription for then the Plea shall be intended double for it is of common Right as it appeares by the Statute of Morton chap. 4. And the common is mutuall for the Lord hath Right of Common in the Lands of the Tenant and the Tenant in the Lands of the Lord And it was urged by Nicholls Serjeant that the Common shall be apportioned as if it were Rent and that the Lessee shall have Common for his Lease and then the Lessor hath no Common appurtenant or appendant to the two Virgats of Land and for that the Prescription was not good Coke cheife Justice if it had been pleaded that he had used to have Common for the said Beasts Levant and Couchant upon the said Land there had been no question but it should be apportioned for the Beastes are Levant and Couchant upon every part as one day upon one part and another day upon another part and for that extinguishment or suspention of part shall be of all as if a man makes a Leafe of two Acres of Land rendring Rent and after bargaines and sells the reversion of one Acre there shall be an apportionment of the Rent as well as if it had been granted and attornment And he agreed that if a man have Common appurtenant and purchase parcell of the Land in which he hath Common all the Common is extinct but in this case common appendant shall be apportioned for the benefit of the Plow for as it is appendant to Land Hyde and gain And in the principall case there was common appendant for it was pleaded to be belonging to two Virgats of Land and for commonable Beastes And he conceived also that the prescription being as appertaining to such Land that this shall be all one as if it had been said Levant and couchant for when they are appurtenant they shall be intended to Plow Manure Compester and Feed upon the Land And also he conceived that the right of Common remaines in the Lessor and for that he may prescribe for after the end of the Tearme shall be returned and in the intermin he may Bargain and sell and the Vendee shall have it and shall have common for his Portion And Walmesley Justice agreed to that and that during the Tearme the Lessor shall be excluded of his Common for his proportion Foster Justice agreed and that the possession of the Lessee is the possession of the Lessor but he conceived when the Lessor grants to the Lessee six acres of Land in such a feild where the Land lies and then the Beasts were taken in another feild And so they agreed for the matter in Law and also that the pleading was ill and so confesse and avoid the prescription But upon the traverse as it is pleaded the Jury shall not take benefit of it and Judgement was given accordingly Termino Pasche 7. Jacobi 1609 In the Common Bench. THOU art a Jury man and by thy false and subtill means hast been the Death and overthrow of a hundred men for which words Action upon the case for slander was brought and it seemed to Coke cheife Justice that it did well lye if it be averred that he was a Jury man and so of Judge and Justice for Sermo relatus ad personam intelligo debet de qualitate persone as Bracton saith and in the like Action brought by Butler it was not averred that he was a Justice of Peace and resolved that an Action upon the case doth not lye But Walmesley Justice conceived that an Action doth not lye for one Juror only doth not give the Verdict but he is joyned with his Companions and it is not to be intended that he could draw his Companions to give Verdict against the truth and false and subtill means are very generall Warburton Justice agreed with Coke and conceived that the Action well lies being averred that he was a Jury man as if one calls another Bankrupt Action well lies if it be alledged that the Plaintiff was a Tradesman and it is common speaking that one is a Leader of the Jurors and a man may presume that other Jurors will give Verdict and may take upon him the knowledge of the Act. Walmesley conceived that the Action did not lye for that the words are a hundred men which is impossible and for that no man will give any credit to it and for that it is no slander and for that Action doth not lye no more then if he had sayd that he had kild a thousand men But Coke Warburton Daniell and Foster agreed that the number is not materiall for by the Words his malice appears and for that they conceived that the Action doth well lye Pasch 7. Jacobi 1609. In the Common Bench. Denis against More ANthony Denis Plaintif in Replevin William More Defendant the case was this Two joynt Lessees for life were the Remainder or Reversion in Fee being in another person he in Reversion grants his Reversion Habendum the aforesaid Reversion after the death surrender or forfeiture of the Tenant for life it hapneth that the Lease determines for the life of the Grantee and Remains to another for life and resolved that this shall be a good grant of the Reversion to the first effect of Possession after the Deaths of the Tenants for life according to the 23 of Eliza. Dier 377. 27. And it shall not be intended to passe a future interest as if it were void of the other party and so was the opinion of all the Court see Bucklers case 2. Coke 55. a. and Tookers case 2. Coke 66. Upon a Fine the first Proclamation was made in Trinity Tearm 5. Jacobi And the second in Michaelmas Tearm 5. Jacobi And the third in Hillary Tearm 6. Jacobi where it should be in Hillary Tearm 5. Jacobi And the fourth and fifth in Easter Tearm 6. Jacobi And this was agreed to be a palpable Errrour for the fourth Proclamation was not entered at all and the fifth was entered in Hillary Tearm 6. Jacobi where it should have been in Hillary Tearm 5 Jacobi and it shall not be amended for that it was of another Tearm and the Court conceived that this was a forfeiture of the Office of the Chirographer for it was an abusing of it and the Statute of 4. H. 4. 23. and Westminster 2. Are that Judgement given in the Kings Court shall stand untill
Damages c. An Assise brought and the Grant was of the Herbage and Pannage c. and whether this were good or no some held it void for the incertainty of the Grant when it should begin Sir Edward Cook held the Grant good for if the King make a Lease for Life and granteth the Land without reciting the state to one for life this is a good Grant for Life of the Reversion to begin immediately after the Death of the Tenant for Life Trin. 7. Jacobi rotulo 35. An Assise brought for the Office of a Harald at the Funeral of the Earle of Exceter and the great Question was where the view should be made and it was alledged that it should be made in the place where he exercised his Office but the Court doubted of that but they were examined of the view made in the Abbey of Westminster being the place where the Funeral was performed and the Court were of opinion that in Dower where Tithes are demanded no view lies for of things that are invisible no view lies but the Tenant in such case shall be denied it SIr William Saint Andrew brought an Assise de Darrein Presentment against the Arch-bishop of York the Countess of Shrewsbury and F. H. for the Church of O. in the County of Nott. The Archbio p and H. appeared and the Countess did not appear and though the Countess made Default yet the Assise was not taken against her by Default but a re-summons was awarded against the Countess and the same Day given to the Arch-bishop and H. and a Habeas Corpora against the Recognisors And note the Tenants that appeared pleaded in abatement that a Writ of Quare impedit for the said Church was hanging in such a Court between the same parties and the Assise was brought afterwards and with this agrees the Register and it was adjudged a good Plea The Writ was returned in this manner Pleg de prosequend John Doo Richard Roo The within named Arch-bishop and Countess are attached and either of them is attached per Pleg H. S. N. J. And the within named H. hath nothing in the Sheriffs Bailywick by which he may be attached nor hath a Baily within his Liberty nor is therein found and the residue of the Execution c. and Judgement given that the Writ should abate and the like was in the Earle of Bedfords case where two Quare impedits were brought one after another and the last Writ abated J. Lovelace versus Baronissam Despencer R. Harvey Clericum Trin. 12. Jac. rotulo 74. de Darrien Presentment for the Church of M. And the said H. being solemnly exacted came not and the Sheriff made a Return that he was summoned by J. O. and W. C. and therefore the Assise was to be taken against him by Default but the said Baromsh by T. her Attourney faith the Assise ought not to be so taken and confesses the said J. was the person last presented but conveys a Title to her self of the Mannour to which the presentation belongs and that being so seised the Plaintiff in the Assise by usurpation presents the Clerk in the Count whereupon the Defendant brought a Quare impedit and hanging the Writ the Clerk in the Count dies and the Plaintiff presented the Clerk that made Default who by vertue of that presentation is yet Parson of the said Church by which she is seised of the Advowson as in her former Estate and so she saith that the Presentation of the said J. by the said L. made ought not to prejudice her and a Demurrer upon this Plea and that the Assise should remain to be taken c. for want of Recognisors and the Sheriff was commanded to distrain them c. and Judgement given that the Plea was good but quaere of the Declaration whether sufficient because it was not alleadged that he that presented was seised of the Advowson Pasch 8. Jac. rotulo 31. An Assise brought for the Office of Clock-keeper of and it was held that it must be an ancient Office and because they could not prove that it was an ancient Office the Plaintiff was non-suit and the Plaintiff shewed a Grant of the same in E. 6. time but that was held no ancient time Pasch 6. Jacobi It was held by the whole Court that an Assise of Sadler to the Queen would not lie being granted to one by the King but was held void by the whole Court for the King cannot make an Officer to the Queen and by the Patent no place was expressed where he should injoy and exercise his Office and take the Profits and therefore the Jury could not have the view and for that cause an Assise cannot be taken and if the King should grant the Office of Usher to his Son the Prince an Assise would not lie An Assise brought against Demetrius the Plaintiff was non-suit and Demetrius moved to have Cost and it was denied by the whole Court because an Assise is not within the words of the Statute Audita Quaerela BIrd versus Kirton Trin. 13. Jacobi rotulo 3118. An Audita Quaerela brought and the case was this Bird and Milles were bound to Kirton and Kirton makes a Bond to Milles in the summ of 100. l. that if Milles be not sued upon the first Bond then that shall be void and it was alleadged that Kirton did both sue Milles and Bird and that he had no notice of the second Bond that he might have pleaded it and so pretends that the second Bond should be a Defeasance of the first and Judgement was given for the Defendant BEck brought an Audita Quaerela and surmises the matter following that Boon Administrator of C. brought his Action of Debt upon an Obligation and before Judgement that Administration was revoked and Administration granted to another and notwithstanding the Revocation he procured Judgement and the second Administrator released and the rest brought an Audita Quaerela upon that Release and the Court would not grant a Supersedeas because the Revocation was but matter in fait for that Revocation was not under Seal and the first Administrator might appeal Cases in Law and Notes IF a Writ of Covenant be brought against two and if one acknowledge the Fine before one of the Justices and the other acknowledge by Dedimus or before another Justice that Fine cannot be proceeded upon these two acknowledgements by the opinion of the Court. A Writ of Covenant was brought against three men and their Wives and onely two men and their Wives acknowledged the Fine and the other Husband and Wife never acknowledged and the Fine was sued as a Fine acknowledged by all and it was desired the Fine might be amended and the Man and Wife that did not acknowledge might be put out but the Court would not grant it If I make a Lease for years reserving Rent during the Life of A. and B. if one of them die
by the whole Court held to be a condition but Judgment was given for the Plaintiff for doublenesse in the plea. BRown versus Dunri Hill 15. Iac. rotulo 1819. The Defendant made cognizance c. as Bailiff M. Walker Widow Administrator c. R. W. for one rent charge of 6 l. granted by one Warner to the said R. and M. his wife for life of the VVife And the said R. by the said writing granted c. That if it should happen the said yearly Rent to be behind and not paid in part or in all by the space of ten dayes next after any Feast c. being lawfully demanded that then c. the said Warner c. ten shillings nomine paene for every default and that then it should be lawfull to the said W. and M. and their Assigns to enter into the premises and distrain as well for the rent as for the nomine paene and shews that the rent was behind in the life of the Husband and that he dyed intestate and that administration was committed to the woman and made cognisance for the rent due at such a Feast in the life of the Husband and being then behind and the issue was that the Grantor was not seised and after a tryall diverse exceptions were taken one was for that a demand was not alledged another was that the cognisance was made as Bailifle to the Administrator when as the woman by the survivorship should have the rent Another was that it is not alledged that the rent was behind by ten dayes next after the Feast and the exceptions upon debate at diverse dayes were over-ruled First the demand is not necessary for the Distress is a sufficient demand as it was adjudged in Iaces case The second was because the cognisance as Administrator are void idle and superfluous and for the ten dayes it was good because that predicto tempore quo c. It was behind and adjudged by the whole Court for the Advowant SLoper versus Alen Trin. 15. Jac. rotulo 3002. Replevin upon the taking of 40. Sheep the issue was that the Sheep were not levant and couchant and found by a speciall verdit that twenty Sheep were levant and couchant and that twenty Sheep were not levant and couchant and it was held upon the reading of the Record that the Plaintiff should have his Judgment BVrton versus Cony Hill 16. Iac. rotulo 2044. The Defendant avows for a rent charge granted to him for life by his Father issuing out of all his Lands in such a Town to have and to hold to levy and yearly to take the said annuity or annuall rent of c. during the naturall life of the said P. at two Feasts in the year to wit c. by equall portions the first payment to be made at the first and next Feast of the said Feasts which should next happen after the term of 8. years ended and determined specified and declared in the said will And if it should happen c. And averres in the avowry that there is not any term of years specified and declared in the said Testament before recited And note that in the premises of the Deed it is recited thus in fulfilling the Will or Testament of me the said T. bearing date such a date I have given c. And the Court held that the grant was present if no term was contained in the will and Judgment was given for the Advowant But after Judgment was entred upon Record an exception was taken because it was not averred that the Grantor was dead and it was allowed for a good exception but it came to late judgment being entred HEyden versus Godsulm Judgment for the Defendant who avowed for rent reserved upon a Lease for years and it was moved that the Plaintiff who brought the writ of Errour upon that Judgment ought to find bayle upon the writ of Errour by the Statute of 3. Iacobi and it was held by the greater number of the Judges that the Plaintiffe should not find bayle for Replevins are not within the Statute TVrny versus Darnes Trin. 17. Iac. rotulo 2887. Demurrer in a replevin upon a traverse of Lands when as the parties have not agreed of the quantity of Land The Avowry was that C. was seised of one Messuage two Barns one Mill c. and 100. acres of Land with the appurtenances in W. and held them of c. by fealty rent c. and suit of Court c. And the Plaintiff prayed in aide and he joyned and alledges that he was seised of 70. acres of Land with the appurtenances in his demesne as of Fee and held them of G. by fealty and rent c. and suit of Court and traverses that he held the Tenements of the said G. as if his Mannor of W. in manner and form as c. and a speciall demurrer and one cause was because he denies not the seisin of the said services but only denies and traverses the tenure and therefore they pretended that the plea contained double matter and was a negative pregnant and secondly whether the Seisin or Tenure be traversable and the Plea was held good by Hubberd and Warburton RIchards versus Young Trin. 16 Jacobi rotulo 104. vel 1700. A Replevin brought for taking of Cattel at Aller in a certain place called Land Mead the Defendant avows as Bailiff of Sir John Davies the Kings Serjeant containing four Acres for damage fesant the Plaintiff pleads in Barr that Henry Tearl of Hunt was seised of the Mannor of Aller whereof one Messuage c. was parcell and customary Land and devisable by Copy of Court Roll and that within the said Mannor there was a Custome that every customary Tenant of the said Messuage hath been used to have Common of Pasture in the said place called Land Mead rhe Issue was without that that within the said Mannour with the appurtenances whereof c. is and time out of mind was a custome that every customary Tenant of the laid Messuage c. had Common of pasture in manner and form c. and Serjeant Harris moved in Arrest of Judgment that there was no custome alledged because it did not appear in the pleading that the place where the taking was supposed to be was within the said Mannor and no custome of the Mannor could extend forth of the Mannor but he ought to prescribe in the Mannor and note he ought to have pleaded that the place in which c. was parcell of the Mannor and then the Plea had been good In a Replevin upon an Avowry for Rent the Plaintiff for part pleadeth payment for the other part an Accord the one Issue is found for the Paintiff and the other for the Defendant the Plaintiff shallrecover his costs and damages and the Defend shall have Judgement of Return habend and no costs and damages I think otherwise it is if the Avowries be severall then on both
Venire facias and upon the Habeas Corpus onely twenty and three were returned and the Jury did not appear full and a Tales was awarded and tried for the Plaintiffe and good because the Venire Facias was returned full PIgott versus Pigott Mich 20 Jacobi In Replevin Avowry that Ellen Enderby was seised in Fee of three Acres in Dale and took to Husband S. Pigott and had Issue Tho Ellen dyed and the husband was in by the Curtesie the Husband and Tho the Heir granted a Rent of 10. 〈◊〉 issuing out of the three Acres to the Avowant and avows for so much behind the Plaintiffe in barrsayes that before Ellen had any estate one Fisher was seised in Fee and gave it to John E. in tayl Jo had issue Ellen who after the death of her Father entred and was seised in tayl and took a Husband as is before declared And had Issue Tho and that Tho. Tenant by the Curtesie living grants the Rent as above without this that Ellen was seised in Fee of three Acres and issue was joyned thereupon and found for the Avowant And in arrest of Judgment it was objected that in effect there was no issue joyned For the traverse of the sesin of Ellen E. was idle for no title of the Rent is derived from her but they ought to have traversed the seisin of Thomas the grantor and then the Issue had been of such a nature that it had made an end of the matter in question which was not in this case no more then if the Tenant in Formulen should plead not guilty but the Court held that though an apter issue might have been taken and that the traverse is not good yet it was helped by the statute of Jeofailes For the estate of Ellen H. was in a sort by circumstance materiall For if she were seised in tayl and that estate tayl discended to Thomas the grantor then by his death the Rent is determined after the Fee discended to Tho from Ellen there the estate was of that nature that he might grant a sufficient rent charge And although it might well be presumed that Thomas after the Fee discended to him from Ellen had altred such estate tayl yet by Popham the Courts shal not now intend that because the parties doubted nothing but whether Ellen was seised in Fee or not when he dyed And that doubt is resolved by the Verdict as if a Defendant should plead a Dâ—ed of J. S to A. and B. and that it dyed and B. survived and infeoffed the Defendant if the Plaintiffe should say that J. S. did not infeoffe A. and that they should be at issue upon that and should be found against him although this be no apt issue yet it is helped by the statute because the parties doubted of nothing but of the manner of the feoffment of J. S. whether it was made to A or not and of the same opinion was Fennor Yelverton and Williams but not Gandy CRate versus Moore Mich. 3. Jacobi In Replevin of Cattell taken in D. the Defendant avowes as Bayliffe of H. Finch And the case was thus the Lady Finch Mother of H. Finch granted a Rent charge to H. issuing out of her Mannor of N. and out of all her Lands in D. E. and is in the County of Kent belonging or appeartaining to the said Mannor And the Plaintiffe to barr the Defendant pleads an abatement in H. Finch into the Lands in D. And upon the Defendant demurrs for the Lands in D. were not belonging or appertaining to the Mannor of N. and adjudged for the Defendant For no Land can be charged by that grant if it be not belonging to the Mannor And that for two Reasons the first is because by the word aut alibi it appears that it is all but one sentence and the Aut conjoynes the words proceeding to wit all the Lands in D. S. and to put in the County of Kent in these words following to wit alibi in the said County to the said Mannor appertaining and the sentence is not perfect untill you come to the last words to the said Mannor appertaining for if the Rent be issuing out of the Land in D. c. which is not appertaining to the Mannor then the sentence must be perfect and these words County of Kent and these aut alibi must begin a new sentence which was never seen that they should make the beginning of a sentence And therefore this case is not like the case between Bacon and Baker second of King James in the prohibition where Queen Eliz. grants all her â—ith Hay c. within the liberty and precincts of St. Edmonds Bury belonging and appertaining to the said Monastery and which were lately collected by the Almoner of the said Monastery for there the latter sentence is perfect and compleat And these words in the County of Suffolke and the nec non that ensues are a new sentence And therefore the last clause And which by the Almoner c. goe only to the Tiths following the nec non and not to the Tiths contained in the first clause but it had been otherwise if the nec non had been unacum as in truth the patent was but it was mispleaded for then the unacum would have reinjoyned all and made it but one sentence The second reason was in respect of the nature of the thing granted which was but a rent And therefore if rent be granted out of a Mannor to be perceived and taken out of one acre this shall be good and nothing shall be charged but that one acre only 17. Ass but otherwise it is of Land for a Feofment of a Mannor To have c. one acre it is a void habend For here it appears that the intent of the Lady Finch was only to charge the Mannor and such Land only which were appertaining to the Mannor But Popham held the contrary for he conceived that D. S. and W. in the County of Kent were particularly named and bounded in by the name of the place and County and therefore they should be charged although they were not appertaining to the Mannor As if a man grants all his Lands in D. R. and V. in the County of M. and in Darn in the same County which he hath by discent it should only extend to Darn but denyed by the Court but he was strongly of that opinion And he held that by the first of the charge out of the Mannor all the Lands parcell or appertaining to the Mannor are charged and therefore the subsequent words if they should be limited as is above-said would be idle and frivolous And Yelverton said that the words before belonging or appertaining shall be taken to extend to the Land occupied in the Mannor although it is not parcell of it and Fenwood and Willams granted and Judgment was given that the Defendant should have a return habend TOtt versus Ingram Trin. 4. Jac. In a replevin brought by T. against I.
brings an action of Trespasse and the first Nonsuit pleaded in Barr and adjudged a good Barr 12 Edw. 4. accordingly Foster Walmesley and Warburton agreed without any doubt but they sayd that if the first execution had been had by Covin then it should have been otherwise In Debt upon buying of diverse severall things the Defendant confesseth part and for the residue the action being brought by an Executor in the Detinet onely the Defendant pleads he oweth him nothing and upon this Tryall was had and Verdict for the Plaintiff and after Verdict it was moved that this misjoyning of Issue was ayded by the Statute of Jeofailes but it was resolved by all the Justices that it was not ayded for it was no misjoyning of the Issue but no Issue at all but if there had been Issue joyned though that it were not upon the direct matter yet this shall be ayded and at the end the Plaintiff remitted the part that the Issue was joyned and prayed Judgment for the residue and this was granted but if the Plaintiff had been nonsuited that would go to all Administrators during the minority had Judgment in debt and before execution sued the Executor came to his age of seventeen yeares and how this execution shall be sued comes the question for the power of the Administrator was determined by the attaining of age of 17. yeares by the Executor and the Executor was not party to the Record and for that he could not sue execution but it seems that the Executor may sue speciall Scire facias upon the Record and so sue execution in his owne name See 27 H. 8. 7. a. Action upon the Case for these words He hath stolne forty Staure of Lead meaning Lead in Stauce from the Minster and resolved by all that action doth not lye for it shall be intended that the Lead was parcell of the Minster and the Innuendo shall not helpe that Pasche 9. Jacobi 1611. In Common Bench Crane against Colepit THomas Crane Plaintiff in Replevin against Bartholemew Colepit the only question was if Tenant by discent of the age of twenty years and more ought under one and twenty yeares to attorn to a Grant of the signiory or not and it was adjudged that the Attornement is good for three reasons First For that he gives no Interest and for that it cannot be upon condition for it is but a bare assent Secondly His Ancestors held the same Land by the payment of the Rent and making of their Services and it is reason that the Rent should be payd and the Services performed and for that though that he shall have his age for the Land yet for the Rent he shall not have his age and though that it is agreed in 32 Ed. 3. That he shall have his age In per que servitia yet after his full age the Grantee shall distraine for all the arrerages due from the first so that the Attornement is no prejudice for this Infant and he is in the number of those which shall be compellable to attorn see 41 Ed. 3. age 23. 26 Ed 3. 32. 32 Ed. 3. and 31 Ed. 3. Per que servitia 9 Ed. 3. 38. 32 Ed. 3. Infant of the age of three years attorned and good and 3 Ed. 3. 42. Husband attornes and that shall bind the Wife 12 Ed. 4. 4. 18 H. 6. Attornement of an Infant is good to binde him for that it is a lawfull act Thirdly The Attornement is a perfect thing of which the Law requires the finishing that is the grant of the signiory which is not perfect till the Tenant attorn and Foster Justice said that so it had been adjudged in this Court in the time of the Reigne of Elizabeth in which Judgment all the Justices agreed with one voyce without any contradiction See 26. Ed. 3. 62. Pasch 9. Jacobi 1611. In the Common Bench. As yet Rowles against Mason see the beginning Michaelmas 8. Jacobi DOdridge Serjeant of the King argued for the Plaintiff he saith that there are two Copies first that a Copy-holder for life under a 100. l. may nominate his Successor Secondly That such Copy-holder after such nomination may cut down all the Trees growing upon his Copy-hold and sell them and he saith that it hath been adjudged that the custome that Copy-holder for life may sell the Trees growing upon his Copy-hold is void between Popham and Hill Hillary 45 Eliz. in this Court so if the first custome doth not make difference by the nomination the second is resolved to be void and it seemes to him that the first custome doth not make difference and to the objection that the first custome hath been adjudged to be good between Bale and Crab he saith that the custome adjudged and this custome as it is found differs in many points First It was found that every Copy-holder for life solely seised without Remainder but here is sole Tenant in possession and this may be where there is a Remainder so that uncertainty in this makes the custome void as in 6 Ed. 3. custome that an Infant at the age of discretion may alien is void for uncertainty also in the case here it is found that the Copy-holder may name who shall be next Tenant to the Lord and doth not say to whom the nomination shall be made but in the first case the custome is found to be that the nomination ought to be to the Lord in the presence of two Copy-holders also in the first it is found that if they cannot agree of the Fine that the Homage shall assess it but in this custome here found there is not any mention of that he ought to seek to be admitted and doth not say at what court the which ought to be shewed in certain as it is resolved in Penimans Case 5 Coke 84. Where custome that a Feoffment ought to be inrolled is expressed shall be inrolled at the next court also in the first case to be found that after the Fine is payd or offered he which is named shall be admitted and here is not any mention of that so that he concluded that this is a new custome and not the same custome which was in question between Bayle and Colepit also it is found that the trees were cut immediately after nomination of a new Tenant and before any admittance or Fine payd for him so that insomuch that the Benefit was not equall as well as to the Lord as to the Tenant as in 2 Ed. 4. 28. and 22 Ed. 4. 80. For plowing and turning upon the Land of another for that the custome shall be void And to the second custome also it seems that that is voyd and unreasonable First for that when any is alledged in the custome that is inconvenient though that it be not mischeivous yet the custome shall be void as in 4. Assisarum 27. in Assise brought against an Abbot which pleads custome that all the houses of the South side of
Lessee for years or life surrender before the performance of the condition the Fee doth never increase as it is 14. H. 8. 20. and the Lord Chandois Case 6 Coke But the Estate tayl remaines after the condition performed and then hath the Fee dependant upon the Estate tayl and that there is a necessity that there shall be an office as it was in Nicholls Case in the Com because of the right and that after the condition performed then the Fee shall vest Ab Initio and this corporates together partly by the Letters Patents and partly by the performance of the condition and so it is in Butler and Bakers case that it is not a Grant in futuro but one immediate Grant to take effect In futuro see 2. H. 7. for the execution of Chantrey and Grendons Case in the Com. and 2. H. 7. If the King grant Land to J. S. for life the remainder to the right Heires of J. R. which is in life the remainder is good as well as in case of a common person and so he seemed that Judgement shall be given for the Plaintiff Walmesley Justice agreed that it shall be remainder and not reversion as if Lands begin to the Husband and the Wife and to the Heires of the Body of the Husband the Husband dies this is a remainder in the Heires Males and not a reversion for it cannot grow higher and it was not in the King as one distinct Estate before the Grant and Formedon in remainder lieth for it and though it be misrecited yet it shall be good and ayded by the Statute of Misrecitalls and grant of a thousand is suffered to convey the reversion of a thousand by the common Law and if the recitall were that it was a reversion depending upon the Estate tayl it was good without question and the King may grant five hundred reversions if he will and that the last Damus is ex certa scientia et mêre motu nostris Damus et concedimus that if the Patentee pay twenty shillings Tunc sciatis quod nos de ampliori gracia ea certa scientia et mero motu nostris concedimus c. and that the word Volumus will amount to a Covenant or a Release as 32. H. 6. The King by his Patent by these words Nolent that he shall be impleaded and this amounts to a release and so words which intends expresly words of Covenant may be pleaded as a Grant in case of the King as it is 25 Ed. 4 So is a common person license another to occupy his Land this amounts to a Lease of Land if the time be expressed so if a man grants to another that he shall have and injoy his Land to him and his Heires that by that Fee passeth And if the King grant reversion to begin at Michaelmasse the Grant is void for that it is to begin totally at Michaelmasse and doth not looke back to any precedent thing But if it relate to any precedent Act then that shall be good by relation and shall passe ab Initio see Com. Walsinghams Case 553. b. that in such case the performance of the condition divests the Estate out of the King and there is no difference in this case betwixt the King and a common person and agreed in the case of Littleton Where a man makes a Lease for yeares upon condition to have Fee that the Fee shall not passe till the condition be performed and with this agrees 2. R. 2. But if a man makes a Charter of Feoffment upon condition that if the Feoffee injoy the Land peaceably for fifteen years that the Feoffment shall be void In this case the Fee-simple determineth by the performance of the Condition and in this case the Fee passeth ab Initio by the Livery as in 10. Assise 18. Assise 1. 44. Assise 49 Assise And he agreed that the words Habeat et Teneat the Reversion passes and this is good Fee-simple and this refers to the first Damus et Concedimus and so concluded that he seemed that Judgement shall be given for the Plaintiff Coke cheife Justice accordingly and he conceived that there are two questions upon the substance of the Grant And to the first objection that hath been made that is that reversion was granted and increase of an Estate cannot be of a reversion and in all these cases which have been put they are of an Estate in possession and so is the case of Littleton also and he agreed that it shall not be good if it be not good ab Initio that though there be not other words then Reversionem predictam That it shall be good And to the second point upon the former He conceived that the Grant is but a Grant and that the condition is but precedent Limitation when the Estate of Fee-simple shall begin and so it is said by Montague in Colthurst and Brinskins Case in the Com. And further he saith that there are four things necessary for increasing an Estate First that it ought to be an Estate upon which the increasing Estate may increase Secondly the particular Estate ought to continue for otherwise it is grant of a reversion in Futuro Thirdly That the Estate which is to increase ought to vest by the performance of the Condition for if there be disturbance that it cannot then vest then it can never vest Foutthly that both the Estates as well the particular Estate as the Estate which is to increase ought to have their beginning by one self same Deed or by diverse Deeds delivered at one self same time And to the first and to prove that he cyted 44 Ed. 3. Attaint 22. Lessee for yeares upon condition to have Fee granes his Estate the Fee doth not increase upon the performance of the condition for then it shall passe as a Reversion and so the particular Tenant surrenders his Estate as it is sayd 14. H. 8. For if the Privity be destroyed the Fee will never increase but there is no such â—ycity but that if the substance of the Estate remains though it doth not remain in such form as it was at the first Reversion the Estate may well increase as if Lands be given to the Husband and wife and to the Heirs of the Husband upon the Body of the Wife to be begotten the Wife dies and the Husband is Tenant after possibility of Issue extinct yet he may well perform the condition for the Estate remaines in substance and with this agrees 20 H. 6. Ayd and so it is if a Lease be made to two for years upon condition to have fee one dies the other may perform the Condition and shall have Fee-simple as it is agreed by 12. Assise 5. the reason is that the privity remaines and the Estate also in substance Thirdly As to that also it seems that it ought to vest upon the performance of the condition which is the time limited for the beginning of the Estate and if it do not vest
charge to the King and to the Common Wealth and the execution of Writs may be prejudicall and penall to the Sheriff himselfe And for that he may well provide that he shall have notice of every execution which are most Penall And also in all the Indenture now made he doth not constitute him to be his under Sheriff but only for to execute the Office and for these reasons he seemed the Obligation is good and demands Judgement for the Plaintiff But it seemes to all the Court that the Covenant is void and so by consequence the Obligation as to the performance of that void but good to the performance of all other Covenants And Coke cheif Justice said that the Sheriff at the Common Law was elligible as the Coronor is and then by the death of the King his Office was not determined and also it is an intire Office and though the King may countermand his Grant of that intirely yet he cannot that countermand by parcells and also that the under Sheriff hath Office which is intire and cannot be granted by parcells and this Covenant will be a meanes to nourish bribery and extortion for the Sheriff himselfe shall have all the benefit and the under Sheriff all the payn for he is visible the under Sheriff and all the Subjects of the King will repaire to him and the private contracts between the Sheriff and him are invisible of which none can have knowledge but themselves And Warburton sayd that in debt upon escape c. are against the Sheriff of Notingham he pleaded Nihil debet and gives in evidence that the Bayliff which made the Arrest was made upon condition that he should not meddle with such executions without speciall warrant of the Sheriff himselfe and his consent but it was resolved this notwithstanding that the Sheriff shall be charged in and in the principall case Judgement was given accordingly that is that the Covenant is void Note that the Sheriff of the County of Barkes was commited to the Fleete for taking twenty shillings for making of a warrant upon a generall Capias utlagatum for all the Justices were of opinion that the Sheriff shall not take any Fees for making of a warrant or execution of that Writ but only twenty shillings and foure pence the which is given by the Statute of 23. H. 6. for it is at the Suit of the King But upon Capias utlagatum unde convictus est which is after Judgement it seemes it is otherwise A man grants a Rent to one for his life and halfe a yeare after to be paid at the Feasts of the Anunciation of our Lady and Michaell the Archangell by equall portions and Covenants with the Grantee for the payment of that accordingly the Grantee dies 2. Februarâ—… and for twenty pound which was a moyity of the Rent and to be payd at the anunciation after the Executors of the Grantee brings an Action of Covenant and it seems it is well maintainable And Coke cheife Justice sayd That if a man grants Rent for anothers life the Remainder to the Executors of the Grantee and Covenant to pay the Rent during the Tearm aforesayd this is good Collective and shall serve for both the Estates and if the Grantee of the Rent grant to the Tenant of the Land the Rent and that he should distrain for the sayd Rent this shall not be intended the same rent which is extinct but so much in quantity and agreed that when a Rent is granted and by the same Deed the Grantor covenants to pay that the Grantee may have annuity or Writ of Covenant at his Election Michaelmas 7. Jacobi 1610. In the Common Bench. Waggoner against Fish Chamberlain of London JAMES Waggoner was arrested in London upon a Plaint entered in the Court of the Maior in Debt at the suit of Cornelius Fish Chamberlain of the sayd City and the Defendant brought a Writ of Priviledge returnable here in the Common Pleas and upon the return it appears that in the City of London there is a custome that no forrainer shal keep any shop nor use any Trade in London and also there is another Custome that the Maior Aldermen and Commonalty if any custome be defective may supply remidy for that and if any new thing happen that they may provide apt remedy for that so if it be congruae bonâ— fidei consuetudo rationi consentiae pro communi utilitate Regis civium omnium aliorum ibidem confluentium and by Act of Parliament made 7 R. 2. All their customes were confirmed and 8 Ed. 3. The King by his Letters Patents granted that they might make By-Laws and that these Letters Patents were also confirmed by Act of Parliament and for the usage certified that in 3 Ed. 4. and 17. H. 8. were severall acts of Common Councell made for inhibiting Forrayners to hold any open shop or shops or Lettice and penalty imposed for that and that after and shewed the day in certain was an Act of Common counsell made by the Mayor Aldermen and Commonalty And for that it was enacted that no Forrayner should use any Trade Mistery or occupation within the said City nor keep any Shop there for retayling upon payn of five pound and gives power to the Chamberlain of London for the time being to sue for that by Action c. in the Court of the Mayor in which no Essoyn nor wager of Law shall be allowed and the said penalty shall be the one halfe to the use of the said Chamberlain and the other half to the poor of Saint Bartholomewes Hospitall And that the Defendant held a shop and used the Mistery of making of candles the seventh day of October last and for that the Plaintiff the ninth day of the same month then next insuing levied the said plaint And upon this the Defendant was Arrested and this was the cause of the taking and detaining c. And upon argument at the Bar by Serjeant Harris the younger for the Defendant and Hutton for the Plaintiff and upon sollemne arguments by all the Justices Coke Walmesley Warburton Danyell and Foster it was agreed That the Defendant shall be delivered and not remanded And the case was devided in to five parts The first the custome Secondly the confirmation of that by Act of Parliament Thirdly the grant of the King and the confirmation of that by Act of Parliament Fourthly the usage and making of Acts of common councell according to this Fiftly the Act of common councell upon which the Action is brought and upon which the Defendant was Arrested And to the first which is the custome it was also said that this consists upon three parts That is first if any custome be difficult Secondly if it be defective Thirdly if Aliquid de novo emergit The Mayor Aldermen and Commonalty Possunt opponere remedium and that there are foure incidents to that remedy First it ought to be Congruum Retione
and void in it self this Clause doth not supply that For this is but notification to the Officers of the Queen that they should be attendant to the said Earl For though that the Intent of the Queen was that the Earl of hutland should execute this office by Deputy yet this intent shall not make the grant good for though that the Intent of a common person be apparent within the Deed yet this intent shall not make a voyd grant good 19 H. 6. 20 H. 6. 22 H. 6. 15. Grant to 2. Et heredibus with warranty to them and to their Heirs this clause of warranty though it were the intent of the parties apparent yet it was not sufficient to make the grant which was voyd good and so it is in 9 H. 6. 35. Abbot by his deed in the first person grants a Tenement and the Grantee in the third person renunciavit totum Commune quod habuit in uno tenemento and though that in this Grant the Intent of the parties is apparent yet this Intent shall not make the Grant which is void in it self to be good So if a man makes a Lease for life to the Husband and Wife and after grants the reversion of the Land that the Husband held for tearm of life that grant of the Reversion is void though that the Intent was apparent 13 Edw. 3. Grants 63. And so in Patent of the King grant to a man and heredebus masculis suis is void though that the Intent also is apparent that he should have an estate tayle 18 H. 8. b. Estates 84 But admitting that the Grant may be supplyed by the last words that is that in the last Grant the words are officia predicta and in the clause of Assistance yet these words may be supplyed for there are two other Grants in which there is expresse mention that the Patentee may exercise it by Deputy and so the words shall have full Interpretation Reddendo singula singulis And hee conceived that the Writ shall abate for that that it contains Vi armis And also the Declaration for the Jury have not found any disturbance at all And he agreed that in some cases Trespasse Vi armis well lyes as it is Fitzh Na. Bre. 92. 86. as where it is actuall taking 45 Ed. 3. 30. 44 Edw. 3. 20. where trespasse Vi armis is maintainable against a Miller for taking of Toll against the Custome for here is actuall taking and 8 R. 2. 7. Hosteler 7. In an action of Trespasse Vi armis against an Host for that that certain evill persons have taken the money of the Plaintiff and good But where there is not any actuall taking there the Writ ought not to containe Vi armis for for not scowring of a Ditch or stopping of Water as it is 43 Ed. 3. 17. But for casting of Dung into a River action of Trespasse Vi armis lyes 12 H. 4. But for burning of a house it doth not lye Vi armis 48 Ed. 3. 25. And so for turning of water-course 3 H. 4. 5. But in this case there is but disturbance with a word and commandement to hold a Court and no Court held nor no Proclamation made and so no disturbance at all 16 Edw. 4. 11. one hath the office of a Parkership and another man was bound that he should not disturbe And in debt upon the Obligation he pleaded that the Obligor hath threatned to disturb him and adjudged that this is no breaking of the Condition for there is no disturbance and in 2 Ed. 3. 25. and 40. Quo minus by Jeffery Scorlage where the King grants to the Mayor of Southampton the Customes of the same Towne and in quo minus for taking of them it was adjudged that words are no assault but there ought to be an act done But in this Case is nothing found but words and no act done but it is found that after the Defendants held the Courts But that doth not appear if it were against the will of the Earl of Rutland or not and so concludes that the action is not mayntainable And this case was argued again in Trinity Tearm next ensuing by the Justices Danyel being dead but I was not present at the argument of Foster and Warburton Justices but I heard the arguments of Walmsley Justice and Coke chiefe Justice And first Walmesley conceived that the Grant was good and that the Earl of Rutland by this Grant might exercise his Office by Deputy and this only in respect of the quality of his person for the Patentee is a Noble man which hath been employed as an Embassador of the King into other Realms and this Grant of this Office being amongst others varies from them for this wants the word exercendum which is contained in the others and also the office of a Steward is too base for an Earl to execute for the Steward is but as a Clark and not a Judge for he shall not be named in a Writ of false Judgment nor shall hold plea of any actions but under 40. s. for that it is not fit nor convenient that an Earl should exercise such a bas Office in Person For if Recovery here be pleaded it shall be tryed by the Country 1 Edw. 3. And the Steward shall not give Judgment but the Suitors and no tryall shal be by Verdict but by waging Law and the fee of the Stewardis but a 1 d. for every Plaint And for that it was not the Intent of the Queen that the Earl should exercise such a base office in person and her Intent is apparent for that that the word Exercise is not contained in the Patent And the Intent of the Queen is to be considered for the other Offices are fit to be executed by the Earl for the exercising of them is but a matter of pleasure as in hunting in the Forrests and Parks of the Queen and for that if these Grants have not contained words of deputation the Earl ought to exercise them in person according to Littleton And Noble men are not to be used as common people for they are not to be Impannelled of a Jury and Capias doth not lye against him by which he cannot be outlawed and for that he shall not be bound to sit in such a base Court as this base Court is And all this matter is wel declared and expounded in the last clause of the Patent where the words are Et ulterius volumus mandamus quod omnes c. Sint intendentes auxiliantes c. Where the words volumus in Patents of the King to amount to as much as concedimus or a Covenant which is all one with a Grant as in 32 H. 6. The King releases all his right in an Advowson Nolentes that the Patentee shall be grieved or disturbed and adjudged that this shall amount to a Grant and so the word Volumus in the principall case and also he conceived that the
the Rent is gone If I make a Lease for Life reserving a Rent to me and my Executor neither the Executor nor the Heir shall have the Rent Justice Walmsley held this difference in making a Lease to two during their Lives if one die the other shall have it otherwise it is if it be made to one during the Life of two and one of them die in this case the Lease is ended and there is difference between a reservation of Rent and Lease for Reservation is according to the will and pleasure of the Lessor and Justice Walmsley said if a Lessee for years granteth a Rent to A. during the Life of B. and C. this Reservation is good although one should die which Sir Edward Cook denied and Judgement was given for the Plaintiff in Hills case If I make a Lease for years reserving a Rent and then I grant demise and to farm let Reversionem domus for years and the Rent to have and to hold the Reversion and the Rent from a time past if the Lessee cannot get an Attornement yet it is a good Lease in Reversion and shall take effect after the end of the first Lease habendum terram habendum reversionem est terra revertens and no difference If the Husband with his own money purchaseth for his Wives Joynture Land to them and the Heirs of their two Bodies the Remainder in Fee to the Wife and they have Issue two Sons and the Husband dieth and the Wife suffereth a Recovery to the use of the youngest Son the eldest Son notwithstanding shall have the Land by the Statute of Joyntures Hill 6. Jac. If I set-out my Corn and after take it away the Parson may sue me in the Spiritual Court or bring an Action of Trespass against me but if the Parson sue in the Spiritual Court a stranger for taking away the Tithes which were set out this is a Praemunire in the Parson Tenant at will shall pay his Rent when he holdeth over his terme but Tenant at sufferance shall not pay any Rent if a man hold over his terme and pay his old Rent he shall be accounted Tenant at will For one joynt Debt for one Contract you cannot plead Nil debet for part and demur for the rest for he pleads Nil debet and the matter in Law is reserved Licet saepius requisit is a sufficient Request upon a Bond because it is a Debt Unto an Action brought against a man upon a Bond pleads Denis age the case was this that when the Obligation was sealed and delivered the Defendant was of full age but at the time when the Bond bore Date he was under age and at the Assises the Judge there ruled that at the time of making the Bond was when the Bond was sealed and not when it bore Date The Court were of opinion that where a Bishop holds Land discharged of Tithes and he makes a Feofment of the Land the Feoffee shall be discharged of Tithes and the like if the King hath ancient Forest-land discharged of Tithes and the King grants this Land the Grantee is discharged of Tithes and it is a general Rule that he which may have Tithes may be discharged of Tithes If I let Land for years reserving Rent if I command one to put his Cattle into the Land I cannot distrain them for my commandement is a wrong and an Action of case will lie against the commandor If I make a Lease and bid the Tenants cut down the Trees yet I may have an Action of waste against my Lessee In Sir Cheydens case the commandment to take Possession was void unless he had commanded him to expell the Tenant and then he might joyn either to distrain or bring an Action of Debt for the Lease was made by him and two more 28 H. 8. If I make a Lease to the Husband and Wife covenant to do no waste or repair Houses and the Husband dieth and the Wife surviveth and holdeth in if the Wife commit waste or not repair the House no Action lieth against the Wife but to such a Lease the Wife is tied to pay the Rent or to perform a condition made by the part of the Lessor but not observe or perform Covenants of the Lessee Pasch 10. Jacobi The Court much doubted whether one that had a Park and was used to pay one Shoulder of Deer for all manner of Tithes and the Park is dis-parked should now pay Tithes in kinde or not For Wooll and Lamb no Action upon the Statute for not setting out of Tithes for they are no predial Tithes and no Action lies upon this Statute for small Tithes An Administration granted durand minori aetate execut is not within the Statute of 21 H. 8. And by the Civil Law the Judge may after Administration by him granted revoke it and grant it to another And if an Administration be granted to a Feme Covert yet she shall sue in their Court as a Feme sole One Briefly married an Administratrix and entred into Bonds for the Intestates Debts and afterwards the Wife leaveth her Husband and refuseth the Administration and it was granted to another and now B. prayeth a Prohibition for that he may be sued for Debts and denied by the Court untill he be sued This Administration was first granted by Doctor B. and after by him revoked and a new granted by him to the Wives Brother and afterwards he revoked that and established the first Administration and the Appeal A Feofment in Fee by Deed indented Rent reserved it is good but without Deed cannot reserve Rent If Land be devised by three upon condition to pay them 100. l. equally to be divided and one of them dieth his Executor or Administrator shall have the Money and so it is if one were bound to pay Money The Commissary granted Administration of the Intestates Goods to the Wife and did make a Divident of his Estate to some of the rest of his Kindred and this was-held not to be warranted by Law and more then the Ordinary could do because the Administratrix is chargeable to pay all Debts and Promises of the Intestate and to bring up his Children which she cannot do if the Goods be taken away Vbi delinquit ibi punietur If a Copy-holder of Inheritance accept a Lease for years of his Copy-hold the Copy-hold is gone by the opinion of the whole Court If a Legacy be granted of Land this shall not be sued for in the Spiritual Court but if one by Will devise Land to be sold for payment of Legacies this shall be sued for in the Spiritual Court by the opinion of the whole Court If two Fulling-mils be under one Roof and a rate-tithe paid for the Mils and after you alter these Mils and make one a Corn-mill your Rate is gone and you must pay Tithes in kinde or if you have but one
pair of Stones in your Mill and pay a Rate for them then if you put on another pair of Stones new Tithes must be paid in kinde If one in Fee make a Lease for Life and after granteth a Rent-charge if the Grantors Cattle come upon the Ground I may distrain them although I cannot distrain the Tenant in Possession but the Grantor cannot avoid it If the condition of a Bond be to discharge a Messuage of all Incumberances then one may plead generally that he did discharge it of all Incumberances but if it be to discharge it of such a Lease then I must shew how If a man devise his Trees to his Executors to pay his Debts the Executor must in convenient time cut down the Wood. And so if a man sell his Trees the Vendee must sell them in a convenient time If I grant you out of my Mannour 10. l. per ann and recite but five pounds the Recitall shall not diminish the Grant And so if I grant you ten pounds out of my Mannor and recite 20. l. this shall not inlarge it If I infeoff two of Land habendum to me in Fee and habendum to the other in Fee they are Tenants in common In the Court of Wards one Dymack was a Purchasor by Bargain and Sale and before inrolment D. dies and after his Death the Indenture was inrolled the Question was whether his Son shall be in Ward for the Land and it was adjudged that he is Heir to the Land and is in by the Statute of 27 Eliz. of Bargains and Sales and not by the Statute of Uses My Lord Hobard held that if an Executor pay a Bond made upon a usurious Contract it shall be a Devastavit in the Executor and if he be bound to present one to a Church and he present one upon a Simonaical Contract the Bond is broken Hill 10. Jac. Resolved if one make a Lease of a Mannour reserving Rent and afterwards the Lessor grants the Reversion of forty acres thereof now if an Action of Debt be brought by the Grantee he may aver the rate of the Acre and if the Defendant plead Nil debet per patriam the Jury shall rate the value and although the value be found less by the Jury then the Plaintiff surmiseth yet the Plaintiff shall recover after the proportion For Acts in Law no Attornement is necessary as if a Lease made for years reserving a Rent which is assigned to a Woman for Dower she shall have the Rent without Attornement In Cambels case upon an Elegit returned that the Lessor was seised in Fee and that by vertue of the Judgement the moity was delivered to the Plaintiff and for the Rent reserved upon the Lease for years before Judgement If a man top a Tree under the growth of 21. years and suffer the body to grow and afterwards when the boughes are grown out again he doth lop and top it again I shall pay no Tithes although the Tree was not priviledged at the first cutting by the opinion of the whole Court If a Debt be recovered in a Court of Record that Debt cannot be assigned over to any man by the opinion of the whole Court Mich. 10. Jac. Pasch 14. If Money be to be paid upon proof made there the triall shall be the proof to be made before but if it be to pay Money within 3. Moneths after proof there proof must be made first but if it be upon proof before A. then proof being made before A. this extending proof shall tie the party but Warburton held the contrary and he resembled this to a surmise to have a prohibition which is no binding proof for the Jury may pass against the proof in the surmise when a Bond is to pay Money upon proof this is a legal proof by Law if it be laid generally to be paid by proof if it were by proof before two Justices or two Aldermen this shall be intended a sufficient proof when the Action shall be brought upon the Bond and if the Defendant say that due proof was not made then they shall say that before the two Justices c. it was proved by testimony before them and then the Judges shall judge whether it be a sufficient proof or not If I devise Lands to my Executors for three years for the payment of my Debts this is Assetts in the Executors hands but if I devise my Land to be sold for the payment of my Debts it is no Assets before it be sold Mich. 9. Jacobi It was held in the Common Pleas by the whole Court that in the Kings case the consideration of the Money paid is never to be proved Likewise in a common case of Bargain and Sale in consideration of Money paid where in truth none was paid yet it is good and the Bargainee is not tied to prove the Payment for the Bargainer may have an Action of Debt If a Legacy be granted out of Leases and a Suit in the Spiritual Court for this shall not be prohibited but otherwise it is if it were out of Fee Simple Lands HE le versus Frettenden Resolution upon two Cases upon the Statute of E. 6. for not setting forth of Tithes Videlicet A man possessed of Corn sels it and before two Witnesses sets out his Tithes and afterwards privately takes away his Tithes and the Parson sues him upon the Statute of treble Damages for not setting forth of Tithes and the Defendant proves by Witnesses that he set forth his Tithes yet this Fraud is helped for the words are without fraud or deceit In the second case one secretly sels his Corn to one who was not known and afterwards the Vendee commands the Vendor to cut the Corn which he doth and takes away the whole Corn without setting forth his Tithes and the Question was who should be sued for the Tithes and the Court held the first Vendor should be sued for it was fraudulent If a man be found guilty of Felony and after receives his Pardon he shall not be Legalis home to pass upon a Jury If a Venire facias be against an Arch-bishop the Venire facias shall be Tam milites quam alios liberos c. because he is a Lord of the Parliament If a man be obliged in a Statute staple his Copy-hold Land is not extendable but it is upon a Statute of Bankrupt If a man have Common in three Acres and purchase one of the three Acres his Common is extinct If a man of the Cinque Ports shall come to London he may be there arrested and shall not have the Priviledge of the Cinque Ports Difference between those things which are in the Prender and such things that are in the Render for if I take not such things as are in Prender according to my Prescription it is void If I have Estovers in Woods to be taken every other year if I
he be Lord or Free-holder The best badge of truth is the usage of taking the profit of the Trees 11 H. 4. rot 80. Where the Court ex officio should inquire and that omitted the Court may supply it but where an Attaint lyeth that is not to be supplied as in a Valore Maritagii the value is the point of the Writ and if that be omitted by the Jury never to be supplied by Writ Cheyneys case Valore Maritagii and intrusion were at the Common Law before the Statute and the Statute doth but inlarge the Common Law for by the Statute the Judgement is otherwise then at the Common Law It is vain to plead the Execution of a Writ of Seisin upon a Recovery but to plead that he did enter MIch 10. Jac. If I purchase Land by a name and alleadge it to be in a wrong Parish or Shire it is good notwithstanding the mistake by the Court. A stranger shall be bound by a Law made for the publique good but he must come within the place where it was made The King cannot grant precedency in publique things as to go by Water or by passage on the Land as by Coach if a Bond bear Date Super altum mare then it must-be sued onely in the Admiral Court otherwise it cannot be sued there Every Bishop hath his Cathedral and Councel and the Councel and Bishop there decide matters of Controversie the Prebends have their names from their affording of help to the Bishop and in time of the vacancy of the Bishop the Arch-bishop is Guardian of the Spiritualties and not the Dean and Chapter TRin. 14. Jac. rotulo 1810. Birtbrook versus Battersby Exception raken after Triall The Action was laid in Westmerland and the Jurata written at the end of the Record was Ebor. ss ura Inter c. and recites the Day of Triall in the County of York and the place where the Triall was at York and prayed that it might be amended and it was granted to be amended by the whole Court INt. Bullen Jarvis The Venire facias was made in this Form Videlicet Liberos legales homines de B. and it should have been De vicineto de B. and it was notwithstanding held good and amendable by the Roll for it shall be intended that the Jurors are inhabiting in the Town of B. although the Sheriff returns the Jurors of other places and none of them be named of B. and the Venire facias was returned by A. B. Ar. without naming him Vic. and it was amended by the Court. GRiffin versus Palmer Trin. 15. Jac. rotulo 924. Issue taken whether the Lands contained in the Fine were ancient Demesne or not pretending they were parcell of the Mannour of Bowden in the County of Northampton which was pretended to be ancient Demesne and the Doomesday Book was brought into the Court and by that Book it appeared that the Mannour of Bowden was in the County of Leicester and not in the County of Northampton but the Councel affirmed that the Mannour was both in the County of Leicester and Northampton but it valued not for the Doomsday Book was against the Plaintiff The Court was moved to amend a Venire facias which was Album Breve but the Court would not grant it although the Sheriffs name was put to the Pannell but if the Sheriff upon the Venire facias had returned that the Execution of that Writ did appear in a certain Pannell annexed to that Writ and had not put his name to the Writ of Venire facias but to the Pannell in such case the Court would have amended the Venire facias Lessee at will cannot grant one his Estate if one occupy with Tenant at will this is no Disseisin to the Lessor If a Tenant for seven years suffer Trees to grow above the age of 21. years they are Timber and it is waste to cut them Tenant at will shall pay his Rent when he holdeth over his terme but Tenant at sufferance shall not pay any Rent If a man holdeth over his terme and pay his old Rent he shall be accounted Tenant at will If one being sick giveth Notes to make his Will and after by infirmity of sickness he becometh so weak that his memory faileth him and these Notes are made into a Will this is a good Will otherwise it is if he become lunatique after the Notes given MIch 15. Jacobi One Warter was committed to the Fleet by the Lord Treasurer of England and the Prisoner was brought to the Common Pleas by Habeas Corpus which was returned and no cause of the Commitment expressed and for that cause the Prisoner was set at liberty and bailed TRinity Terme 15. Jacobi Hanson one of the Attorneys of the Common Pleas delivers a Note to the Sheriffs Clerk of the names of divers Jurors that were to be returned and of divers others that were not to be returned in a case concerning one Butler and for this Offence he was put out of the Roll of Attorneys In Spilmans case if I have Estovers in Land and cut down Estovers and a stranger taketh away the Estovers I shall have an Action against him that taketh them away although he have there Common of Estovers also If the Husband sow the Ground and die the Executors and not the Heir shall have the Corn but if the Father sow the Land and dieth or the Heir sow the Land and the Wife recover Seisin in Dower she shall have the Corn. The setting open a Shop on the Sabbath day is punishable by Statute Law and so is a House of Bawdry and not to be dealt with by the high Commissioners So long as the Land is occupied by him that hath the Fee-simple which did formerly belong to the Order of the Cistercians it shall pay no Tithes but if he let it for years or life the Tenant shall pay Tithes HIll 11. Jac. rotulo 90. A Recovery was had upon a Writ of Entry in le post for a common Recovery between Hartley and Towers in the County of Bucks the Attorney who prosecuted the Recovery by negligence did not file the Writ of Entry which was prosecuted orderly and all Fees paid when the Recovery was passed And in Easter Terme 14. Jac. it was moved that the Writ of Entry might be filed and it was granted although the Tenant was dead the Writ of Entry was returnable Octabis Purificationis MIch 14. Jacobi My Lord Hubbard Justice Warburton and Winch held that when there were but three Judges of the Common-Pleas they might argue Demurrs and if two of them were of one minde and one of the other the Judgement should be given according to their opinions My Lord Cook said that for the Body of the Church the Ordinary is to place and displace in the Chancell the Freehold is in the Parson and it is parcell of his Gleab Tpespass will
lie by the Heir for pulling down the Coat-Armor c. of his Ancestors set up in the Church A Pew cannot belong to a House Fraud shall never be intended except it be apparent and found and that conveyance which at the time of the making was good shall never by matter ex post facto be adjudged to be fraudulently made for before primo Eliz. at the Common Law A conveyance made for natural affection without valuable consideration is not to be avoided none shall avoid it but such as come in upon valuable considerations Lands devised to one in Tail upon condition that he shall not alien and for Default of such the Remainder to R. in Tail this is a Condition and no Limitation by the whole Court and the Heir at the Common Law may enter for the Alienation Matters of instance which are between party and party as for Tithes and Matrimony are not to be dealt withall by the high Commissioners if they proceed inverso ordine that cannot be holpen in the Common Pleas but by superior Magistrate if they be Judges of the cause If one in Norfolk come within another Dioces and commit Adultery in another Dioces during the time of his residence he may be cited in the Dioces where he committed the Offence although he dwell out of the Dioces by Cook Warburton and Winch. If the King grant Lands to A. and his Heirs Males and doth not say of his Body he is but Tenant at will Tamen quaere A Deputy of an Office for Bribery cannot make his Master be punished corporally but pecuniarily equity shall not barr me of the benefit of Law Note the Probate of Wils and Administrations did not belong to the Ordinary originally but to the Common Law If two Aliens be at Issue the Inquest shall be all English but if between an Alien and Denizen that Inquest shall be de medietate Linguae 21 H. 6. 4. A Judgement given against a dead person is not void but Error 28. Ass 17. A Juror was committed to the Fleet For making his Companions stay a whole Day and a Night having no reason for it and without the Assent of any of the rest of his Fellows and after was bailed but not untill the Court was advised 8 E. 3. 75. In a Writ of Estate Probanda every Juror ought to be of the Age of 42. years If I grant Land to one and his Heirs in the Premises of the Deed Habendum to him and the Heirs of his Body he shall have the Land in Tail and the Fee-simple after the State in Tail when the Estate is certain in the Premises the Habendum shall not controll it If one make two Executors one of seventeen years of Age and the other under Administration during the minority is void because he of seventeen years old may execute the Will of Administration during the minority in such case be granted and the Administrator brings his Action the Executor may well release the Debt Pigot and Gascoins case If a Record go once to Triall and warning given if the first Attorney be alive the Plaintiff is not tied to give warning again but if the Attorney be dead he is If no place of Payment be in a Will which appointeth Money to be paid there must be a Request to pay the Money for he is not bound to seek all England over for him otherwise it is if it were by Bond. In every case where the Plaintiff might have Judgement against the Defendant there if the Plaintiff be non-suit the Defendant shall have his Costs if the Plaintiff be non-suit TRin. 11. Jac. In cases of remitting causes from the inferior Judge the Arch-deacon cannot remit the cause to the Arch-bishop but he must remit it to his Bishop and he to the Arch-bishop It was held by the Court that one might distrain for a Legacy In a special Verdict the Plaintiff must begin to argue first OLive versus Hanmer A Writ of Error was brought upon a Judgement by Nil dicit for want of a Warrant of Attorney and the Record certified and a Certior are to the Clerk of the Warrants and Error assigned for want of a Warrant And the Court was moved that a Warrant might be filed and it was granted and a Warrant filed accordingly Pasch 12. Jac. An Action was brought against Baron feme and an Attorney appeared for the Husband alone and the Court held it was the Appearance of Baron feme in Law PAsch 12. Jacobi Sheriff versus Whitsander One Judgement was confessed in Trin. 42. Eliz. rotulo 504. And afterwards in Trinity Terme 43. Eliz. the Defendant brought a Writ of Error bearing Date the 12. of May Anno 43. and upon that Writ the Record was certified 25. May and afterwards Error was assigned in the upper Bench for want of a Warrant of Attorney by the Defendant And Mich. 43. 44. Eliz. the Warrant of Attorney was received and entred upon Record by Order of Court of Common Pleas. And the like was Pasch 2. Jac. rotulo 1956. Int. Bathgrone and Smith and the like Mich. 1. Jac. rotulo 1306. Inter Smith Kent CRane versus Colpit Question was whether the Attornement of an Infant be good or not and by the whole Court it was held good by three Reasons First he gives no Interest Secondly it is to perfect a thing Thirdly he is a Free-holder IT was held in the case of Gage an Attorney who as an Administrator brought an Action of Priviledge that his Priviledge ought not to be allowed And after a Bill was filed against Drury an Attorney as Executor and held that the Bill would not lie but in both cases the Suit should be by Original BEarbrook versus Read The name of Confirmation must stand for Sir Francis Gawdy was christened Thomas and confirmed Francis by that name he must be called SIr Henry Compton was sued for Cloathes of his Wife bought without his command or privity and the whole Court were of opinion that if the Wife should buy Merchandises and thereof make Cloathes and wear those Cloathes although the Husband know nothing of them yet he shall pay for them PAsch 10. Jac. The Court was moved to know whether the Wife of a Bankrupt can be examined by the Commissioners upon the Statute of Bankrupt and they were of opinion she could not be examined For the Wife is not bound in case of high Treason to discover her Husbands Treason although the Son be bound to reveal it therefore by the Common Law she shall not be examined An Infant shall not be examined If an Administration be granted to one during the minority of two Infants and one of them dieth the Administration continueth still Actions of Debt LOvelace versus Cocket Mich. 6. Jac. rotulo 1001. Action of Debt brought upon an Obligation for the Paiment of Money at a
arbitrated or else it is void and in every award there must be satisfaction of that which was awarded POwel versus Crowther trin 9. Jacob. rotulo 313. det port e un three executors which appeared at several terms and plead severally ne unques execut the plaintiff proceeds to triall against one of them and was non-suit And then one of the other defendants take the record down by proviso and the plaintiff was again non-suit and both the defendants desire costs before the third issue was tried but costs was onely given to the first and denied to the second for his trial was erroneous because by the first triall the originall was determined If a defendant wage his law no excuse of sickness or water can save his default but in real actions he may excuse himself by such accidents If the condition of a Bond be to discharge a messuage of all incumbrances there one may plead generally that he did discharge it of all incumbrances but if it be to discharge it of such a Lease there he must shew how NOrton versus Sims Pasch 11. Iacob rotulo 346. debt upon a Bond entred into by an under Sheriff to his high Sheriff that the under Sheriff shall not meddle with the execution of executions and shall discharge the Sheriff from all escapes and the plaintiff shewes a breach in the under Sheriff for an escape by reason whereof the Sheriff paid the debt and damages question was whether this covenant be good or not Judgment for the plaintiff A high Sheriff may make an under Sheriff to be at will An under Sheriff hath the same authority an high Sheriff hath it is a void condition to save a man harmless from all men but good if it be special if the condition be to discharge and acquit I must shew how An under Sheriff was before the Conquest A Bond made to the Sheriff by the under Sheriff to discharge of all escapes this is good and lawful If any part of the condition of a Bond be against a Statute-law it is void in all but otherwise if part be against the common-law See Boswels case 10. Rep. when a man is under Sheriff he may do all ministerial things the Sheriff may do but not judicial If the under Sheriff will covenant that he will not meddle with executions above 20. l. this covenant of his own accord is good if a Sheriff binde his under Sheriff that he shall not return Venire Facias nor intermeddle with executions untill he be acquainted it is against Law and naught by all the Court A Bond to perform divers Covenants some against Law and others lawfull it is good for lawfull things and void for the rest The Death of one of the Parties in an Original Writ doth abate the Writ it is otherwise in a Judgement If Husband and Wife sue a Scire facias and the Husband dieth the Scire facias shall abate for it is no more a judicial Writ but as it were an Original to revive a Judgement The Court were of opinion in the case of Sir H. Dowckray that where he had delivered Money to his Servant to provide Victuals and the Servant buyes the Victuals in his Masters name and payes not for them and afterwards an Action is brought against the Master for the Money and he offers to wage his Law and the Court held he could not safely wage his Law because the Victuals came to his own use and therefore he is chargeable and must have his Remedy against his Servant But if the Master did forbid the Tradesman to deliver any Wares except his Man paid for them in that case if the Tradesman deliver Wares the Master may safely wage his Law as it was adjudged in Sir H. Comptons case MAntell versus Gibbs Trin. 7. Jacobi rotulo 1254. An Action of Debt brought upon an Obligation to which the Defendant pleads that an Estranger was imprisoned by another stranger and kept in Prison untill the Defendant as Surety of the stranger made the Bond and it was held a naughty Plea and a Repleader awarded ALston versus Walker Mich. 6. Jacobi rotulo 1342. Land was Mortgaged and a Promise that if the Mortgager at such a time and place should pay the Money to the Mortgagee his Heirs or Assignes that then the Mortgage should be void the Mortgagee died and the Money was paid to his Executors and it was adjudged to be no performance of the Condition for the Executor was not named and the Money ought to be paid to the Heir who should have the Land if the Money were unpaid and not the Executor STurges versus Dean Trin. 7. Jacobi rotulo 2915. An Action of Debt brought upon a Bill for Money to be paid within fifteen Dayes after his Return from Ierusalem he proving his being there the Defendant pleads that he did not prove-his being there to which the Plaintiff demurrs he making proof that is if it be true Sir Edward Cook and Daniel held that the proof should be made upon the Triall and the proof should be subsequent But Warburton and Foster held that the proof shall be precedent because it was restrained to a certain time but it had been otherwise if no time had been appointed NOrton versus Goldsmith Trin. 7. Iac. rotulo 3100. An Action of Debt brought upon an Obligation with a Condition that Chamberlain his Under-sheriff should not meddle with Executions beyond such a summ and alleadges a Breach for intermeddling with Executions contrary to the Condition and the opinion of the whole Court was that the Bond was void PAin versus Nichols Trin. 8. Iac. rotulo 134. An Action of Debt brought upon the Statute of Ed. 6. for not setting forth of Tithes and the Plaiutiff declared as well for Prediall Tithes for he might well bring his Action and for other Tithes as of Lamb and Wooll for which no Action would lie and upon a Triall the Jury found for all as well for those that would as would not bear an Action and after a Verdict this Exception was taken and Judgement arrested BOoth versus Davenant Trin. 8. Iacobi rotulo 805. A Bail taken in the then Kings Bench and an Action of Debt brought upon that Recognisance which was that if it happened the Defendant in that Action to be convicted then the Manucaptors granted and every of them granted that as well the Debt as Damages and Costs which should in that Action be adjudged the Plaintiff should be levied upon their Lands and Chattels And in Easter Terme 7 Iacobi the Defendant upon a Capias ad satisfaciendum awarded against him did not render his Body but afterwards Mich. 7. Jacobi he did render his Body and the Court accepted of it and discharged the Bail and whether the Bail should be discharged or not was the Question and the Court held the Bail should be discharged and Judgement was given for the Defendant RAyson versus Winder Pasch
the Plaintiff shews that the Rector of M. had 2. parts of the Tithes in 3. parts to be divided that the Vicar of the same place had the third part of the Tithes and layeth this by Prescription as to the manner of the taking the Tithes shews further how the Parson Vicar by several Leases had demised the Tithes to him so he being Proprietor of the Tithes the Defend sowed 10. Acres within the Parish to wit Wheat Rie c. carried it away without setting forth the Tithe to his Damage c. And upon a Nil debet per patriam pleaded it was found for the Plaintiff and moved in Arrest of Judgement that the Plaintiff had in that Action comprised severall Actions upon the Statute and that it appeared by his own shewing for the Plaintiff claimed not the Tithes under one Title but under the severall Tithes of Parson and Vicar and Fennor Justice held they could not joyn and no more could the Plaintiff who claimed severally under them and it seemed to him that the Parson could not have this Action against severall Tenants for not setting forth their severall Tithes because he could not comprehend two Actions in one but the whole Court besides held the contrary for although the Parson and Vicar could not joyn in this Case because they claim their Tithes severally by divided Rights yet when both their Tithes are conjoyned in one person as it is in the Plaintiffe then the the Interest of their Title is conjoyned also in one and it suffices generally to shew the Plaintiffe is a Farmer or proprietor of the Tithes without saying of what Title for it is but a personall action grounded meerly upon a contempt against the Statute for not setting forth Tithes and also Tithes are not demanded by this Action although the Title may come in debate yet it was agreed by all the Judges that the Plaintiffe should recover his Tithes in dammages and shall not demand them again by any suit after a recovery in this Action which Mark. BErket versus Manning Pasch 3 Jacobi Action of Debt brought against the Defendant as Administrator of J. S. The Defendant pleads fully administred the Plaintiffe replies that himself had assets and it should have been that the Defendant had assets and this was moved in arrest of Judgement but amended by the Court being the Clerks misprision onely as where it is entred predict Defend similiter and it should have been predict quer similiter and this hath been often amended by the Court. PAler versus Hardman Pasch Jacobi Hardman and his wife Executrix J. H. brought an Action of Debt in the common Pleas against Paler and as that they should restore a tun of Iron to the value of twelve l. and declare upon a Bill for the delivery of the said tun of Iron within such a time and that the Defendant had not delivered it to the Plaintiffes dammage of c. and upon non est fact pleaded it was found for the Plaintiffe and Judgement was given that the Plaintiffe should recover the Tun of Iron or the value of the same and if he should render the tun then by the oath c. should inquire what the tun of Iron was worth and before any return of the writ to inquire of the dammages the Plaintiffe in the common Pleas takes out a Capias upon the Judgement and on Exigent upon that and the Defendant brings a writ of Error and it was adjudged erroneous for two causes first because the Judgement was in the disjunctive that the Plaintiffe should recover the tun of Iron and if not the value thereof so in detinue as it appears by the Judgement in this Case that the Plaintiffe may choose whether he will have the Iron or the value thereof which he cannot do for if the iron be to be delivered he shall recover that onely but if it be not to be delivered then the value and not as before Secondly for that the Judgement is not perfect untill the writ to inquire be returned with issues to the Sheriffe to distrain the Defendant to render the Iron and also to inquire of the value and before the return thereof nothing in certain appears One which to ground any writ of Execution for the Judgement comprehends no certainty but is to be made certain by the return of the writ to inquire with the whole Court granted CArpenter versus Collins Mich. 3 Jacobi An Action of Debt brought by the Plaintiffe for rent arere and declares upon a Lease made to the Defendant at Will to be held from Mich. as long as both parties should agree yeelding and paying three pounds yearly and shews that Collins entred and occupied from the Feast c. unto the Feast of Mich. and upon nil debet plenius the Jury foundthat J. Norrington had issue a Son and a daughter and Devises that his Son shall have his Land at the age of twenty four years and gives forty pounds to his Daughter to be paid her at the age of two and twenty years an further wills that the Plaintiffe should be his Executor and should repair to his houses and have the oversight and doing of all his Lands and moveable Goods untill the severall ages aforesaid and after dies and Carpenter the Executor makes the Lease before mentioned and the Jury further find that the Son died but find not at what age he was at his death but that the Daughter at the Sons death was nineteen and no more and find the Lease made by the Plaintiffe and that the Lessee by force thereof entred and continued possession from Michaelmas for one year and more and find that within that year the Daughter entred and that the Defendant atturned to the Daughter and refused to continue Tenant to the Plaintiffe and by Fennor Yelverton and W. Judgement was given against the Plaintiffe for the Plaintif took no interest in the Land by the Will for the oversight and doing of his Lands shall be intended but in Right of the Heire and to his use because the Testator though not his Son of discretion and government untill the age of twenty four years and in the mean time appointed his Executor to oversee and order the Land to the profits of the Heâ—â—e that wanted discretion 28 H. 8. D. 26. where it is declared that J. S. shall have as well the governing of c. as the disposing setting letting and ordering of his Lands and by the Court held that J. S. had them onely to husband for the profit of his children and no otherwise but he was of opinion that the Plaintif had an estate in the Land upon a limitation determinable at the Sons age of four and twenty years and it appears not at what age he died being not found by the verdict therefore it is incertain and the Entry of the Daughter lawfull for the limitation looks but to the age of the Sonne and
Carr. The Tenant in Dower before the value inquired of and Damages found brought a Writ of Error and by the opinion of the whole Court a Writ of Error would not lie for the Judgement is not perfect untill the value be inquired upon The Demand in Dower was of the third part of two Messuages in three parts to be divided and the Judgement was to recover Seisin of the third part of the Tenements aforesaid with the Appurtenances to hold to him in severally by Meets and Bounds and adjudged naught because they are Tenants in common and the Judgement ought to be to hold to him together and in common but if it had been in three parts divided it had been good Actions in Ejectment ALlen versus Nash Hill 5. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and a special Verdict upon a Surrender of Copy-hold Land which was to the use of the second Son for Life after the Death of the Tenant and his Heirs and it was adjudged not to be good in a Surrender for though it be good in a Will yet Implication is not good in a Surrender and in Copy-hold Cases a Surrender to the use c. this no use but an Explanation how the Land shall go if the Lord grant the Land in other manner then I appoint it is void if there be found Joynt-tenants and one Surrender to the use of his Will it was a Breach of the Joinder and the Will good EYer versus Bannaster Trîn 16. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and declared upon a Lease made by Ed. Kynaston to which the Defendant pleads not guilty and the Plaintiff alleadges a Challenge that the Wife of the Sheriff is Cosin to the Plaintiff and desires a Venire facias to the Coroners and the Defendant denied it and so a Venire was made to the Sheriff and at the Assises the Defendant challenges the Array because the Pannell was arrayed by the Sheriff who married the Daughter of the Wife of the Lessor and note the first Challenge was made after the Issue joyned and at the Assises the Defendant challenged as above and a demurrer to it and Hutton held that a Challenge could not be after a challenge except it were for some cause that did arise after the challenge made and that the party ought to rely upon one cause of challenge though he had many causes observe the Defendant could not challenge the Array untill the Assises but Husband held that a Challenge might be upon a Challenge but this challenge was adjudged naught by all the Judges HIll versus Scale Trin. 16 Jacobi rotulo 5. 18. the Plaintiff brought an Ejectione firmae and declares upon a Demise made to the Plaintiff by J. C. bearing date the first of January anno 15. and sealed and delivered the twelfth of January following to hold from Christmasse then last past for two years the Jury found a speciall Verdict and found the Lease and a Letter of Atturney to execute the Lease in this manner that the Lessor was seised of the Land in Fee and being so seised he made signed and sealed an Indenture of a Demise of the said Tenements and found it in haec verba this Indenture c. and they further found that the Lessor the said fifth day of January did not deliver the said Indenture of Demise to the Plaintiff as his Deed but that the Lessor the said fifth day of January by his writing bearing Date the same Day gave full power and authority to one C. to enter into all the premises and to take possession thereof in the name of the Lessor and after possession so taken to deliver the said Indenture of Demise to the Plaintiff upon any part of the premises in the name of the Lessor and find the Letter of Atturney in haec verba To all c. whereas I the said J. C. by my Indenture of Lease bearing date with these Presents have demised granted and to Farm let c. for and during the Term of two years c. and they further find that the said C. such a day as Atturney to the Lessor by vertue of that writing did enter into the Tenements aforesaid and took possession thereof to the use of the Lessor and immediately after possession so taken the said C. did deliver the said Indenture of Demise upon the Tenements as the Lessors Deed to the Plaintiff to have c. and the doubt was because the Lessor in the Letter of Attorney and said that whereas he had demised and if it were a Demise then the Letter of Attorney was idle but notwithstanding the Court gave Judgement for the Plaintiff WEeks versus Mesey An Ejectione firmae brought against two and one of them was an estranger and was in the house and the principall would not appear and the other appeared and pleaded non informat and the Court was acquainted with the proceedings and the Plaintiff prayed an habere facias possessionem and the Court told the Plaintiff that by that Writ and recovery he could not remove him that had Right when a Lease is made to bring an Ejectment of Land in divers mens hands then they must enter into one of the parcells and leave one in that place and then must he go unto another and leave one there and so of the rest and then after he hath made the last Entry there he sealeth and delivereth the Lease and then those men that were left there must come out of the Land and this is a good executing of the Lease and Pasch the ninth of James the Court held that an Ejectment would not ly of Common pasture or of Sheep-gate BEamont versus Cook Trin. 13 Jacobi An exception taken in Ejectment because the Originall was teste the very same day that the Ejectment was made and adjudged good by the whole Court and one Goodhall brought an originall in Ejectment against Hill and three others and the Plaintiff counts against three of the Defendants and no simulcum against the fourth and this matter was moved in arrest of Judgement And the Judgement was stayed by the whole Court COronder versus Clerk Hill 10 Jacobi rotulo 3315. Action upon an Ejectment brought the Jury found it specially upon a Devise the words of the Will were to my right Heires Males and posterity of my name part and part like the question was who should have the Land and the Court held the Land must go to the Heire at the Common Law and not according to the words of the Will because they cannot consist with the grounds of Law a Will must be construed in all parts the brother cannot have it by the Devise because he is not Heir and the Daughters cannot for they are not Heirs and posterity and therefore neither of them could have it because they are not Heirs and posterity because they that take it must be Heir and posterity
folio 367. To the contrary is not Law two Tenements in Common joyne in a Lease for years to bring an Ejectment and declare that whereas they did demise the Tenements and it was held nought for it is a severall Lease of moities and if they had declared that one of them had demised one moity and the other another moity it had been good WIlson versus Rich Pasch 44. Eliz. The Husband and Wife joyn in a Lease by Indenture to A. rendring Rent and this is for years and make a Letter of Attorney to seal and deliver the Lease upon the Land which is done accordingly A. brings an Ejectmentand declares upon a Demise made by the Husband and Wife and upon Evidence to the Jury ruled by Popham Fenner and Yelverton that the Lease did not maintain the Declaration for a Woman covert could not make a Letter of Attorney to deliver a Lease upon the Land although Rent was reserved by the Lease and so the Warrant of Attorney is meerly void and the Lease is onely the Lease of the Husband which is not made good by the Declaration by the opinion of the Court. STretton versus Cush Pasch 1. Jacobi J. L. leased a House for fourscore years in which Lease there is one Condition that the Lessee his Executors and Assignes should keep and maintain the House in reparation and if upon lawfull warning given by the Lessor his Heires and Assignes c. to enter the Lessee for fourscore years leases the House to A. for thirty years and A. leases it to Wilmore for fifteen years the Assignee of the Reversion came to the House and seeing it in decay gave warning to Wilmore then possessed of that House to repair it which was not done within six Moneths by reason whereof the Assignee entred for the Condition broken and upon a Not guilty pleaded the matter before recited was found by a special Verdict and adjudged against Sir William Wade the Assignee of the Reversion for the warning given to Wilmore to repair who was but an under tenant was not good for he was not Assignee of the terme nor had but a pety interest under the grand Lease upon whom no Attorney could be made for the Rent nor any Action of Waste brought against him for there wanted the immediate privity and in this Case there is a difference to be taken between a rent and a Condition for reparations for the Condition is meerly collateral to the Land and meerly personal and therfore warning is not of necessity to be given at the House but notice of Reparations ought to be given to the person of the Lessee who had the grand interest And a Difference is to be taken between a time certain in which a thing is to be done and a time incertain for in the Case of Rent reserved at a Day certain Demand thereof must be made upon the Land onely because the Land is the Debtor for Popham said that if the Lessor should come and demand his Rent and there should meet with J. S. a stranger and should say to J. S. Pay me my Rent this is no good Demand of the Rent having mistaken the person who is chargeable with it but in this Case one general Demand of Rent without reference to any person who is not chargeable is good And he was of opinion that if a man lease Land rendring Rent for a year whensoever the Lessor should demand it in this Case the Lessor come and demand it before the end of the year his Demand upon the Land is not good except the Lessee be there also for the time being incertain when the Lessor will demand it he ought to give notice to the Lessee of it And if the Lessor come to the Lessee in person and demands the Rent yet it is not sufficient for although notice is to be given the Lessee in person yet the Land is the Debtor and therefore the Law ties the Lessee to the Land as to the place in which he shall be paid but if the Lessor stay nntill the eud of the year then the Lessee at his peril ought to attend upon the Land to pay it for the end of the year is time of payment prescribed by the Law which was granted and Judgement was given for the Plaintiff CLerk versus Sydenham Pasch 4. Jacobi An Ejectment brought by the Plaintiff of a Lease made of Land by P. and B. and Not guilty pleaded and the Evidence of the Defendants part was by reason of a Lease of the Land in Question made by the Abbot of Cleeve before the Dissolution to W. D. and Jo. his Wife and F. their Daughter for their Lives by Indenture and by the same Indenture the Abbot covenants grants and confirmes to the three Lessees that the land should remain to the Assignee of the Survivor of them for ninety years Fr. survived and took to Husband one Hill who the 20 Eliz. grant their Estate for life to J. S. and all their interest in the Remainder and all their power for all the term and this by mean Assignements came to the Defendant and whether any interest passed in Remaindor by the Lease of the Abbot was the Question and by all the five Judges it was held to be a good interest in possibility and to be reduced into a certainty in the person of the Survivor as where Land is given to three and the right Heirs of the Survivor this is a good limitation of the Inheritance presently but it is in expectancy untill the Survivor be known for then the Fee is executed in him And Popham vouched a Case in his experience 17 Eliz. in which Serjeant Baker was of Counsel and it was a Lease was made to Husband and Wife for life and for forty years to the Survivor of them the Husband and Wife joyn in Grant of this Interest and although it be certain one of them shall survive yet the Grant is void because at the time of the Grant there was not any interest but onely a possibility in either of them and although in the Case in Question the Remainder is not limited to any of the three Lessees but to the Assignee of the survivor yet the Court was of opinion that this was not a bare nomination in the survivor to appoint what person he pleased but a terme and an interest and Popham took this difference if a Lease be made to J. S. for life and after his death to the Executors and Assignes of J. S. this is an interest in J. S. to dispose of it but if it had been limited to J. S. for life and afterwards to the Executors and Assignes of J. D. here this is a bare power in J. D. and his Executors because they are not parties or privies to the first interest which was agreed and it was also agreed that whether it was an interest or a word of nomination it was all saved to the party by the Statute of
goes to issue upon it for if they discend to issue upon such a Plea and it be found against the Defendant it is peremptory and he shall loose the Land but upon demurrer it is not peremptory but onely to answer over Which mark VVOrkley versus Granger Mic. 5. Jacobi An Ejectment brought for two Houses and certain Lands c. And upon a speciall Verdict The case was one Heâ— Wels and his wife nere seised of a parcel of Land to them and the Heirs of their bodies begotten as for the joynture of the wife the remainder to the Heirs of the Husband in Fee the Husband bargains and sels the Land to Stamp and his Heirs in Fee And afterwards the Husband and one Winter leavie a Fine of that Land to another who grants that Land back again to Winter for one month the remainder to the husband and wife and the heire of their bodies to be begotten the remainder to the husband and his heirs The Husband dyes the Wife survives and makes a Lease to the Defendant for ninety nine yeers if she should so long live the woman dyes and the Plaintiffe claims under the bargainee and in this Case two points were debated First what Estate passed to the bargainee and Digges of Lincolnes Inne who argued for the Plaintiffe that the bargainee had a Fee simple determinable which issued out of both the Estates as it was held by Periam in Alton Woods Case And he said that the Proclamations upon the Fine are but a repetition of the Fine as it is held in Bendlones Rep put in the Case of Fines in Cooks 3. Rep. And see Pinslees Case for then for the same cause the Issue in tayl is bound although the Fine be levied by the Husband alone by the Statute of the 4. H. 7. and 32 H. 8. because he cannot claim but as Heir to the Father as well as to the Mother and therefore his Conveyance is bound and see 16. E Dyd 332. Husband and Wife Tenants in speciall tayl The husband is attainted of Treason and executed having Issue the woman dyes the Issue shall never have the Land And if husband and wife Tenants in speciall tayl And the Husband levies a Fine to his own use and devises the Land to his wife for life which remainded over rendring Rent the husband dyes the woman enters pays the Rent and dyes the Issue is barred for two causes first by the Fine which had barred his Conveyance of the intayl secondly by the Remitter waived by the Mother 18 Eli Dyer 531. See 5 H. 7. Assise Thorp and Tirrels Case Secondly the Lease made by the woman was determined by her death and it was said that the woman had not any qualitie of an Estate tayl but onely she might take the profits during her life within the Statute of 11 H. 7. And when she dyes the Estate is denised See Austens Case Doctor Wyat Tenant in tail leased for yeers And dyed without Issue the Lease was determined See first of Eliz title Executors And 31 H. 8. Dyer Where a Bishop made a Lease for yeers and afterwards makes another Lease to one of the Lessees c. And Fleming held that if the woman survived as under Tenant in speciall tayl and made a Lease for 21. yeers it is out of the Statute of 32 H. 8. and so it was adjudged in Wattes and Kings Case LAne versus Alexander Hill 5. Jaco The Plaintiffe declares in Ejectment upon a Lease made to him by Mary Planten for three yeers the Defendant saies c. that the Land is Copihold Land of the Mannor of H. in Norff. whereof the Queen Eliz was seised in Fee and long time before the Lessor had any thing there in Court such a day that J. S. her Steward at the Court c. granted the Land to the Defendant by Copie in Fee according to the custome and so justifies his entry upon the Plaintiffe The Plaintiffe replies and saies that long time before the Copy granted to the Defendant to wit at a Court of the Mannor held such a day the 43. Eliz the Queen by Copy c. granted the Land to the Lessor for life according to the custome by force whereof he entred and made a Lease to the Plaintiffe The Defendant by way of rejoynder maintained his barr and traverses with that the Queen at the Court of the Mannor by J. S. her Steward such a day c. granted the Land to the Lessor and upon this the Plaintiffe demurred in Law generally And Yelverton moved that the traverse was good in this Case upon the day and Steward and the difference is where the act done may indifferently be supposed to be done on the one day or the other there the day is not traversable as in the Case of a Deed made such a day there the day of the Deed is not traversable for it passes by the livery and not by the Deed. And the livery is the substance and the day but a bundance 10 E. 4. And the Law is the same if the day in trespasse wherein the day is not traversable For although it be done upon another day it is not materiall But when a man makes his title by an especiall kinde of Conveyance as in this case the Plaintiffe makes his title by one Copy there all that is concerned in the Copy is materiall and the party cannot depart from it for he claims not the Land by any other Copy but by that which is pleaded as is in the 18 H. 6. 14. where an Action is brought for taking his Servant and counts that he by Deed retained with him his Servant the Monday in one week in such a case it is a good plea for the Defendant to say that the Servant was retained by him such a day after without that that the Plaintiffe did retain him the Monday And the Law seems to be concerning Letters Patents wherein the day and place are traversable being the speciall conveyance of the party from which he cannot depart And also it seems that although the day in the principall case be traversed yet the Statute of 18 Eliz of Demurrers aids it it being but a generall Demurrer and the day being onely matter of form But the whole Court were of opinion that the day was not traversable in this case For the Queen granting an ancienter Copy to the Plaintiffs Lessor then to the Defendant and the traverse should have been without this that the Queen did grant in manner and form c. to the Plaintiffs Lessor and the Case is the same in the Letters Patents for there the traverse should be without this that the Queen granted in manner and form c. And the day and place shall not come into the traverse But Justice Fennor was of a contrary opinion for the Reason delivered by Yelverton before and he also and the Lord cheif Justice held it to be holpen by the Statute of 18 Eliz for it is but
matter of form For if the Jury finde a prior grant of the Queen to the Plaintiffs Lessor although it be at another Court it is sufficient and so by consequence the day is not materiall in substance which mark But Williams Justice and the rest held the traverse to be naught for by that the Jury should be bound to finde the Copy such a day by such a Steward which ought not to be and that it was matter of substance not helped by the Statute of 18 Eliz. DArby versus Bois Hill 5. Jacobi An Ejectment brought for an House in London and upon not guilty pleaded The Jury found a speciall Verdict And the case was Tenant in tail of divers Messuages in London 7 January 44 Eliz bargains and sels the said Houses to J. S. and delivers the Deed from off the Land the 8. of January the same yeer Indentures of Covenants were made to the intent to have a perfect recovery suffered of those houses and the ninth of January after a Writ of right is sued in London for those Messuages returnable at a day to come And the tenth of January the same yeer the Tenant in tail makes livery and seisin to J. S. of one of those Houses in the name of all And the other Messuages were in Lease for yeers and the Lessees did not atturn And the question was if the Messuages passed by the bargain and sale or by the livery And it was adjudged that they passed by the bargain and sale And Yelverton took a difference between severall Conveyances both of them Executory and where one of them is executed presently as in Sir Rowland Heywoods Case where divers Lands were given granted leased bargained and sold to divers for yeers the Lessees were at election whether they would take by the bargain and sale upon the Statute of 27 H 8. or by the demise at the Common Law But otherwise it is if one be executed at first for then the other comes too late as it is in this Case for by the very delivery of the bargains and sale the Land by the custome of London passes without inrollment for London is excepted and this custome was found by the Verdict And therefore it being executed and the Conveyance being made perfect by the delivery of the Deed without any other circumstances the livery of sesin comes too late for it is made to him that had the Inheritance of the Messuage at that time And the possession executed hinders the possession executory for if a bargain and sale be made of Land and before inrollment the bargain takes a deed of the said Land this hinders the inrollment because the taking of the livery did destroy the use which passed by the bargain and sale which was granted by the Court. And another reason was given because it appeared that the intent of the parties was to have the Land passe by the bargain and sale because it was to make a perfect Tenant to the Precipe as appears by the subsequent acts as the Indentures Covenant and the bringing the Writ of Right c. All which will be made frustrate if the livery of seisin shall be effectuall and when an Act is indifferent it shall be taken most neer to the parties intents that may be if a man hath a Mannor to which an advowson is appendant and makes a Deed of the Mannor with the appurtenances And delivers the Deed but doth not make livery of seisin yet now although the Deed in it self was sufficient to passe the Advowson yet because the party did not intend to passe it in Posse but as appurtenant if the Mannor will not passe no more shall the Advowson passe alone as it was agreed 14 Eliz in Andrews Case Which mark And the whole Court gave Judgment accordingly that the Defendant who claimed under the bargain sale should enjoy the Land CHalloner versus Thomas Mich. 6. Jacobi A Writ of Error was brought upon a Judgement given in Ejectment in the Courâ— of Carmarthen and Yelverton assigned the Error because the Ejectment was brought de aquae cursu called Lothar in L. and declares upon a Lease made by D. de quidam rivulo aquae cursu And by the opinion of the whole Court the Judgement was reversed for rivulut seâ— aque cursus lye not in demand nor doth a precipe lye of it nor can livery and seisin be made of it for it cannot be given in possession but as it appears by 12 H. 7. 4. the Action ought to be of so many Acres of Land covered with water but an Ejectment will well lye by if a stang for a precipe lies of them and a woman shall be indowed of the third part of them as it is 11. E. 3. But if the Land under the water or River do not pertain to the Plaintiffe but the River onely then upon a disturbance his remedy is onely by Action upon the Case upon any diversion of it and not otherwise Which observe VVIlson versus Woddell Mich. 6. Jacobi The Grand-father of the Plaintiffe in an Ejectment being a Copy holder in fee made a surrender thereof to L Woddell in fee who surrendred it to the use of Margery I. for life who is admitted c. But L Woddell himself never was admitted The Grandfather and Father dye the Son who is Plaintiffe was admitted and enters upon the Land Margery being then in possession and the Defendant then living with her as a servant in those Tenements and this was the speciall verdict And Judgment was given for the Plaintiffe And the Court was of an opinion that the Defendant was found to be a sufficient Trespassor and Ejector though he be but a Servant to the pretended owner of the Land because the Verdict found that the Defendant did there dwell with Margery And in such case he had the true title and had made his entry might well bring his Action against Master or Servant at his election And perhaps the Master might withdraw himself that he could not be arrested And secondly it was adjudged that the surrender of J. S. of a Copy-hold is not of any effect untill J. S. be admitted Tenant And if I. S. before admittance surrender to a stranger who is admitted that that admittance is nothing worth to the estranger For J. S. had nothing himself and so he would passe nothing and the Admittance of his grantee shall not by implication be taken to be the admittance of himself for the admittance ought to be of a Tenant certainly known to the Steward and entred in a Roll by him and it was held that the right and possession remained still in him that made the surrender and that is descended to his Heir who was the Plaintiffe And they took a difference between an Heir to whom the Copy descended for he may surrender before admittance and it shall be good because he is by course of the Law foe the custome that makes him Heir
Exchequer where the Record was would not award the Venire Facias of all the three Villages named in the Record if it did not appear judicially to them that the Close did extend in all the Villages and it doth not appear for parcell if the premises doth not necessarily extend to all the Villages but may well be and so presumed in one Village onely and therefore it is matter of substance And the Judges had not power after their Commission determined to amend the Plea DAvis versus Pardy Mich. 8. Jacobi The Plaintiffe declared of a Lease made by one Cristmas the sixth of May Anno 7. of one Messuage c. In D. by reason whereof the Plaintiffe entered and was possessed untill the Defendant afterwards to wit 18. of the same month Anno sexto supradicto did eject him And not guilty being pleaded a verdict was found against the Plaintiffe And Yelverton moved in Arrest of Judgement to save Costs that the Declaration was insufficient For that Action was grounded upon two things first upon the Lease secondly upon the Ejectment and both those ought to concur one after the other And in this case the Ejectment is supposed to be one year before the Lease made for the Lease is made Anno 7. and the Ejectment supposed to be done Anno 7. 6. And therefore the Declaration naught And Yelverton vouched the case between Powre and Hawkins Anno septimo Termino Pasch Where the Plaintiffe declared upon the Lease of Edw. Ewer 27. April Anno sexto and laid the Ejectment to be 26. April Anno 6. And the Court held then that the Declaration was naught yet in the case in question the Declaration was adjudged good And the word sexto to be void for the day of the Ejectment being the 18. of the same month of May it cannot be intended but to be the same year in which the Lease is supposed to be made by the opinion of the whole Court AYlet versus Chippin Mich. 8. Jacobi The Plaintiffe declares upon a Lease made by John Aylet for one year of certain Land in C. in the County of E. by vertue whereof he entred and was possessed untill the Defendant did eject him The Defendant pleads that the Copihold Land is parcell of the Mannor of D. c. of which one Jo Aylet the Lessors Father was seised in Fee according to the Custome and that he made a surrendor thereof to the use of his Will and by his will devised the Land in question to John the lessor and H. Aylet his sons and to their Heirs Males of their Bodies and willed that they should not enter untill their severall ages of 21 years And further willed that W. B. and H. B. his Executors should have the Lands to perform his Will untill his said Sons Jo and H. came to their severall Ages of one and twenty years c. To which Plea the Plaintiffe replies and confesses the Will but shews further how that such a day and year before the Lease Jo his Lessor attained to his full Age of one and twenty years and entred and made a Lease thereof to him c. To which Plea the Defendant demurred and adjudged for the Plaintiffe For although the Estate to Jo and H. precede in words and the devise to the Executors insues in construction yet the estate to Io Executors precedes in possession And is as if he should have demised the Land untill his Sons Io and H. should attain to their severall Ages of one and twenty years And afterwards to them and their Heirs Males c. to be enjoyed in possession at ther severall Ages so that the Executors have onely a limited estate determinable in time when either Son severally should attain to his full age for his part For so it appears the Devisors intent was that either Son might enter when he attained to the age of one and twenty years And although it was objected by Justice Williams that the two Brothers are joyntenants by the Will and if one should enter when he comes to his full Age the other Brother being under age that would destroy the intent of the devise for then they should not take joyntly but the Court as to that said that the entry of him that attained to his full age doth not destroy the juncture but that they are joyntenants notwithstanding For that entry in the intent of the Devisor was only as to thâ— taking of the the profits and the possession and not as to the estate in joyntenancy and this is proved by 30 H. 6. Devise 12. where a devise was to foure in Fee and that one of them should have all during his life and this was adjudged good and it was as to the taking of the profits onely which observe by the whole Court but Williams RIce versus Haruiston Pasch 10. Jacobi The Plaintiffe declares of a Lease made by Jo. Bull c. The Defendant pleads that the Land is Copihold Land parcel of the Mannor of c. Whereof the King was seised and is seised and that the King by his Steward such a day granted the Land in question to him in Fee to hold at will according to the custome of the Mannor by vertue whereof he was admitted and entred and was seised untill the lessor entred upon him and outed him and made a Lease to the Plaintiffe and then he entred and did eject him c. The Plaintiffe replies that long before the King had any thing in the Mannor Queen Eliz. was thereof seised in Fee in right of her Crown and before the Ejectment supposed by the Defendant by her Steward at such a Court did grant the Land in question by Copy to him in Fee to hold at Will according to the custome of the Mannor who was admitted and entred and further shewed the descent of the Mannor to the King and how the Lesser entred and made a Lease to the Plaintiffe who entred and was thereof possessed untill the Defendant did eject him Upon which Plea the Defendant did demurr because he supposed that the Plaintiffe ought to traverse the grant alledged by the copy of the Defendant in his Barr. But the Court held the replication good for the Plaintiffe had confessed and avoided the Defendant by a former Copy granted by Queen Eliz under whom the King that now is claimed and so the Plaintiffe need not traverse the grant to the Defendant but such a traverse would make the Plea vitious for which see Hilliais Case 6. Rep. And 14 H. 8. Dotknis Case 2 E. 6. Dyer And Brooks title confesse and avoid for as no man can have a Lease for years without assignment no more can a man have a Copy without grant made in Court Which observe SHecomb versus Hawkins Pasc 10 Jacobi The case was in an especial verdict in Ejectment that one Mrs. Luttrel Tenant in fee of the Mannor of L. leavied a Fine to the use of her self for life and after death to
may take the power of the County to make a replevin upon the plures replevin a replevin will not lye of deeds or charters concerning Land and no return habend lyes upon a justistification and if a discontinuance be after a second deliverance the return habend shall be irreplegiable And if the Defendant after an advowry will not gage deliverance he shall be imprisoned for the contempt no disclaimer lies upon a justification but upon an advowry And if the replevin was sued by writ and the Sheriffe return thereupon that the cattell are not to be found then a withernam shall be awarded against the Defendant and if a nihil be returned then a capias alias plur withernam and thereupon an Exigent and if hee do at the return of the exigent find pledges to make deliverance and be admitted to his Fine then the Plaintiff shall declare upon an uncore detent and goe to tryall upon the right of the cause of distress and if it be found for the Plaintiff he shall recover his costs and dammages And if for the Defendant he shall have a return habend But if upon the return of the Plures repleg the Defendant appear then no withernam lies but he must gage deliverance or be committed and the Plaintiff shall count against him upon an uncore detent and so proceed to the rightfull taking of the distress And if it be found for the Plaintiff if the Cattell be not delivered he shall recover the value of the goods and costs and dammages if for the Defendant costs and dammages and a return habend WIlkins versus Danre Trin. 6. Jacobi rotulo 930. The Defendant avowed a rent charge granted to his Father in fee with a clause of Distress the Plaintiff demands Oyer of the deed which was a grant of the rent to one and his heirs to hold to him his Heirs Executors and Assigns to the use of the said H. and his Assigns during the life of a stranger And whether it was in fee or for life was the question and whether the habendum be contrary to the premises or do stand with the estate If the habendum had been to him and his Heirs during his own life this had been void but it was held otherwise for a strangers life and no occupancy can be of a rent CHappell versus Whitlock Mich. 6. Jac. rotulo 1316. The question was upon a liberty in the deed to make Leases provided they shall not exceed the number of three lives or twenty and one years and the lease was made for 80. years if two live so long if he make a Lease absolute it must not be above twenty and one years but in this case it is uncertain MAnning versus Camb Pasch 7. Jacobi rotulo 341. in Replevin the Defendant avows damage fesant by reason of a devise made to the Advowant by will for one and twenty years by one Lockyer who was seised of the Land in fee The Plaintiff saith that true it is that Lockyer was seised in fee of the Land in question and by the said Will devised the Land to the said D. for the said years in confidence only to the use of it if she should remain unmarried and afterwards and before the taking dyed thereof seised J. L. being then Sonne and Heir of the said Lockyer after whose death the Land descended to the said J. as Son and Heir c. after whose death the Legatees entred into the Land and were thereof possessed to the use and confidence above said the reversion belonging to the said J. L. And the woman took Manning to her Husband by reason wherof the said term devised by the said L. to the said A. and J. to the use and confidence above-said ended the said being under the age of 14. years to wit of the age of two years by reason whereof the custody of the Heir did belong to the Husband and Wife by reason whereof they seised the Heir and entred into the Land and maintained their count the Defendant confessed the Will and the devise for years in confidence and further that after the term he devised the Land to his sonne in fee and a demurrer The condition must go to the estate and not to the use COuper versus Fisher Trin. 6. Iac. rotulo 513. The Defendant as Administrator of Foster advows for rent reserved upon a Feofment made in fee of the Mannor reserving rent in fee to the Feoffer in the name of a Fee-farm-rent with a clause of Distress for the not paying of it and that the rent did desend to the issue of the Feoffer And for the rent due to the Heir the Feoffer in his life advows the Plaintiff in his barre to the Advowry saith that neither the intestate nor his Ancestors nor any other whose estate the said T. hath in the rent were ever seised of the same rent within forty years then last past before the taking c. And a demurrer pretending that he ought to alledg seisen in the Advoury with forty years And it was held by the whole Court that the seisin is not to be alledged being it was by deed made within the time of prescription neither is the seisin but where the seisin is traversable there it must be alledged and in no other case and the Judgment was given for the Advowant Mich. 8. Jacobi An Advowry was made for an amerciament in a Court leet and shews that he was seised of the Mannor in Fee and that he and all c. have had a Court leet and the Plaintif traverses that he was seised of the Mannor in Fee and the Court held If the Defendant had a reputed Mannor it would maintain the Avowry though he had indeed no Mannor in truth REynolds versus Oakley The Defendant avows for rent reserved upon a lease for life and the Plaintiff shews that the place in which c. did adjoyn to the close of the Plaintiff and that the Cattell against the Plaintiffs will did escape into the other close and that he did presently follow the Cattell and before he could drive them out of the close the Defendant did distrain the Plaintiff's Beasts And whether the Distress were lawfull or not was the question And the Court held in this case because the Beasts were always in the Plaintif's possession and in his view the Plaintiff would not distrein the Cattell of a stranger but if he had permitted the Beasts to have remained there by any space of time though they had not been levant and couchant the Lessor might have distreyned the Beast of a stranger BLown versus Ayer Hill 40. Eliz. rotulo 1610. In a Replevin the question was upon these words to wit the said Abbot and Covent granted to the said R. that he and his Assigns Fierboot Cart-boot and Plowboot sufficient by the appointment c. without making wast under the penalty of forfeiting the devise whether those words make a condition or no and
to have distrayned the Cattell of the Lord damage fesant and observe his BRaxall versus Thorold Trin. 8. Jac. In Replevin for the taking of 4 Oxen at Coringham in the County of Lincoln in a place called Dowgate leys Sept. 6. Jac. The Defendant says the place contained four acres in Coringham magna which was his Free-hold and justifies the taking damage fesant The Plaintiff in his bar to the Avowry that the place where c. lies in a place called Harrerart quarter parcell of a great Common Field called E. in Coringham aforesaid and that the Plaintiff the said time and long before was seized of one Messuage and of 14. acres of Land Medow and Pasture with the appurtenances to the said Messuage belonging and that the Plaintiff and all they whose estate the Plaintiff had in the Tenements ought to have common and so prescribed to have common for him his Farmers Tenants c. for all comunable cattell levant couchant upon the Tenements c. And upon issue taken upon the Common it was found for the Plaintif and alledged in arrest of Judgment that it did not appear by the Barre to the Avowry in what place the Messuage and Land to which the Common did appertain did lie to wit whether it did lie in Coringham or in any other place or County and thisof necessity ought to have been shewed in certain because the tenure ought to be both of the place where the House and Land did lye and of the place where the Land did lye in which the Common was claimed and therefore of necessity ought to have been shewed incertain and shall not of necessity be intended to be in Coringham where the Common is For a Common may be appendant or appurtenant to Land in another County And the trvall shall be of both Counties and Judgement was arrested by the whole Court TRuelock versus Riggsby Mich. 8. Jacobi In Replevin for the taking of six Kine in a place called Brisley hill in Radley in the County of Berks the Defendant as Bailiff of one Read makes Conisance that the place where c. contains fifty acres and is parcell of the Mannor of Barton whereof the place where c. is parcell and showes that E. 6. was seised of the Mannor of Barton whereof the place where is parcell and granted it by Letters Patents to R. Leigh and divers other Lands by the name of the Coxleyes c. and amongst other particulars in the Patent the King granted Brisley hill in Barton and deduces the Free-hold of the Mannor of which the place In which c. is parcell to Read and he as Bailiff to him took the Kine damage Fesant the Plaintiff replies and shows that one Hide was seised of a Messuage and divers Acres of Land in Radley and that he and those whose estate he hath for himself his Farmers and Tenants used to have Common in the said place called Brisley hill in Radley when the said Feild called Brisley hill in Radley was fresh and not sowed all that yeare with their Cattell Levant and Couchant and when the Field was sowne with Corne and when the Corne was carried away untill it was referred and so justifie the putting in of six Kine using his Common because the Feild was not sown with Corne at the time to which the Defendant pleads and saies that part of the Feild called Brisley Hill in the Avowry named was at that time sown with Corn c. and the Plaintiff demurres and adjudged for the Plaintiff for two reasons The first was because the Defendant in his Avowry referres the taking of the Cattell to another place then that set forth in the Avowry which is not in question and in which the Plaintiff claims no Common for the Plaintiff may claim Common in Brisley hill in Radley and the place named in the Defendants Avowry to which he referres his Plea is Brisley hill in Barton for Brisley hill in Radley is not named in the Avowry by any speciall name but onely by implication by this name the place in which c. and for that reason the rejoinder doth not answer the matter in the replication The second cause was because the Plaintiff claims Common when Brisley hill in Radley was unsown with Corn and the Defendant to that although his Plea should referre to the same Brisley yet hath he given no full answer for he saith that parcell of the said Feild was sowed with Corn and the Court held that sowing of parcell of the Feild shall not hinder the Plaintif from using his Common in the residue for that may be done by covin to deceive the Plaintiff of his Common for the Plaintif claiming his Common when the Field that is the whole Feild is sown shall be barred of his common by sowing of parcell of it notwithstanding that parcell be sowed the Plaintif shall have his common by the opinion of the whole court GOdfrey versus Bullein Mich. 8 Jacobi Bullein brought a Reple vin against Godfrey for the taking of six Beasts in such a place in Bale in the County of Norfolk the Defendant as Bailif of R. Godfrey makes conisance because before the time and at the time in which c. the said R. Geffrey was seised of a Court Leet in Baile of all the inhabitants and râ—â—dent within the Precinct of the Mannor of Baile to be holden within the Precinct of the Mannor as appertaining to his Mannor and shews how that he had used to have a Fine of ten shillings called a Leet Fine of all the cheif pledges of his Leet and if they failed to pay the Steward had used to amerce them that made default in payment shewed how that at a Court holden within the Mannor such a day it was presented that the Plaintif in the Replevin being an inhabitant in B. and resident within the Precinct of the Mannor made default in payment of the said Fine of ten shillings being then one of the cheif pledges of the Court by reason whereof he was amerced at five pounds which being not paid the Defendant took the Beasts and the Issue was whether Bullein at that court was a chief Pledge or no and the Venire to try his Issue was onely of the Mannor and found for the Plaintif and damages and costs to thirty pounds given against Geffrey upon which he brought a Writ of Error in the late Kings Bench and adjudged Error and the Judgement reversed for the Venire facias should have been both of Bail which was the Village as of the Mannor for although the Court be held within the Mannor yet the Leet it self is within the village of Baile and the Plaintiff was an inhabitant and resident within the village which village is within the Precinct of the Mannor and though Fleming cheif Justice held that nothing was in question but whether the Plaintiff was cheif pledge at the Court held within the Mannor or no and so nothing within the
try the Issue anew DOwglas against Kendall Mich. 8. Jacobi The Plaintif declared that the Defendant the 21. of January 6. Jac. by force and Arms thirty Loads of Thornes of the Plaintifs ready to be carryed in a place called the Common wast at Chipping-warden in the County of Norfolk did take and carry away to the Plaintifs damage of ten pounds the Defendant pleaded not guilty to all but to ten Loads and as to them that the place where c. contained one Acre of pasture and that one William Palmer was seised in fee of a Messuage and three quarters of a yard Land in C. aforesayd and that he and those whose estate he had in the sayd Messuage c. time out of minde were used to have for their farmers c. all the Thornes growing upon the sayd Acre of pasture to their use to be imployed and spent upon the sayd Messuage c. as appurtenant thereunto and the sayd ten Loads were growing and unjustly cast downe by the Plaintif upon the sayd Acre of wast and being ready for them to carry the Defendant as servant to Palmer and by his command took them and carryed them away and imployed them upon the House as it was lawfull for him to doe the Plaintiff by protestation that Palmer and such c. time out of minde had not the Thornes growing upon the sayd Acre of pasture parcell of the wast and that Sir Richard Saltonstall was seised of the Mannor of Chipping-warden whereof the common wast was parcell in fee and that he the 21. of January the sixth yeare of K. James granted license to the Plaintif to cut and carry away thirty Loads of Thornes mentioned in the Plea in barr growing upon the Wast by reason whereof they cut those ten Loads of Thornes growing upon the wasts and they were ready to be carryed by reason whereof they were possessed thereof untill the Defendants took them away and upon this Replication the Defendants demurred and adjudged against the Plaintif and there was a differance taken by the Court where a man claimes reasonable Estovers in anothers Soyle and where a man claimes all the Thornes in anothers Soyle for in the first case if the Owner of the Soyle shall cut downe the Thornâ—s first he that hath title to the Estovers cannot take them for the property and interest of all the Thornes continues in the Owner of the Soyle and the other hath onely Common there and if the Owner of the Soyle cut them downe all he that should have the Estovers shall have an Action upon the Case onely and not an Assise for when all the Wood is destroyed it cannot be put in seisin as the Abridgement of the Assise is fol. 21. And so it appeares by Sir Thomas Palmers Case Co. lib. 5. fol. 25. And if one grant an hundred Cords of Wood to be taken at the election of the Grantee and the Grantor or an Estranger cut downe the Wood the Grantee cannot take the Wood but must supply his Grant out of the residue for the Grantee hath but an especiall interest in part of the Wood and not in all but now in this Case the Defendant in right of Palmer claimes all the Thornes in the name of all the Thornes growing upon the sayd Acre of pasture and if he hath all Sir Richard S. cannot have any and so by consequence cannot license the Plaintif to cut any and so the whole interest is in Palmer and it is not in the nature of Estovers for Estovers is but parcell of the Wood and that to be taken to a speciall purpose and in this case it was agreed that although the Defendant had alledged an imployment of the Estovers yet since the Defendant had claimed all the Thornes and Trees the imployment is not traversable for he that hath the generall interest and property in Trees by custome or prescription cannot be restrained but may use them at his pleasure And see 10 E. 4. 2. and adjudged accordingly MAssam against Hunt Mich. 6. Jacobi A Copi-holder of a Messuage and two Acres in fee. The Lord grants and confirms the Messuage and Lands with the appurtenances to the Copy-holder in fee and whether he to whom the confirmation was made shall have by the usage as a Copy-holder common in the wasts of the Lord was the question and adjudged he should not for the Copy-holder by that confirmation is extinct and infranchiz'd for the words with the appurtenances will not create a common for at first the Common was gained by custome and annexed to the customary estate and is lost and perished with that for Common of its own proper nature is incident to a Copy-hold Estate FArmer against Hunt Hilar. 8. Jacobi An Action of Trespasse brought for chasing the Plaintiffs Cattle in such a Close the Defendant justifies taking damage fesant in his Free-hold The Plaintiff replies and shewes one grant of Common in the place where c. by the Defendant to the Plaintiff and that afterwards the Defendant had erected a reek of Corn and the Plaintiff put in his Beasts to use his Common and the Defendant chased them But note that the Plaintiff in his replication in pleading the grant of the Common by Indenture did omit the bringing it into Court. And by all the Judges the chasing of the Cattell by the Defendant is not lawfull for by such means he may defeat his own grant for by the grant of common in such a place the Grantee may use the whole Common And then when the Grantor erects a Reek of Hay upon part of the Common he had granted he will diminish the Common and tend to the enfeebling of his Grant which ought not to be for the Beast ought to range over the whole place and eate the Hay without doing any wrong for the wrong did first begin in the Grantor who is the Defendant of which he shall never take advantage And whereas hee hath erected one Reek of Corn hee may erect twenty and so the Beasts shall have no liberty of pasture there but because the Plaintiff did not shew to the Court the Indenture of the Grant which is the ground of his title for that very cause judgment was given against the Plaintiff DVrant against Child Hillar 9. Jaco An Action of Trespasse brought for chasing the Cattell of the Plaintiff and shews what Cattell and that the Trespasse was done at B. to his damage of c. The Defendant justifies the chasing in one Close called M. in B. which is his Free-hold and that the Cattell were there damage fesant The Plaintiff replies and shews that one B. is seised of one Close called Catley in D. in fee and made a Lease thereof to the Plaintiff for years and that the Defendant is seised of one Close called Fursey in Fee which lies next adjoyning to the Close called Catley and that the Defendant and all those whose Estate he hath in Fursey Close have used
his house which he could not do for the entring is one act done and ended at the going out again And therefore if he re-enter it is a new Trespass and the continuando is only alledged for the aggravation of damages 2 R. 3. 15. 10. E. 3. 10. 16. E. 3. 24. That a continuando cannot be for breaking the House but Doddridge and Haughton Justices the rest being silent were of opinion that it might be alledged that a continuando for although it might be that if hee went forth and re-entred it should be a new Trespass but if upon his first Entry he continued divers dayes it might be alledged with a continuando And see for that Mich. 38. El. in the Common Pleas fol. 118. If a Disseisee re-enter he shall have an Action of Trespass against the Disseisor with a continuando And so is Fitzherberts Nabrevium 91. L. that a continuando may be laid as well for breaking a House as eating the Grass and so is 10. E. 3. 10. and 20. H. 7. 30. by the opinion of Gapley GEush against Mynne Pach. 11. Jacobi An Action of Trespass brought wherefore by Force and Armes the Close of the Plaintiff did break c. The Defendant justified by reason there was a report that a Vermine called a Badger was found there to the great damage of the Inhabitants by reason whereof he uncoupled his Beagles in the place where c. and hunted there and found the Badger and pursued him untill he Earthed in the place where c. by reason whereof he digged the ground and took the Badger and killed him and afterwards hee stopped up the Earth again which is the same Trespass and demands Judgment whereupon the Plaintiff demurs And upon reading the Record Scamber of the Inner Temple was for the Demurrer and that the Defendant could not justifie as this case was And first he was of opinion that the Common Law warrants hunting such noysome Beasts although it be in the Lands of another because it is good and profitable to the Common-wealth that such hurtfull Beasts should be extirpated according to the 8. E. 4. 15. And Fishermen may justifie their Nets upon anothers Land 13. H. 8. 16. 22. H. 6. 49. A man may justifie entring into a house to serve a Subpaena 3. H. 6. 336. A man may justifie the entring into anothers Land with the Sheriff to help him to distrain but otherwise it is for things of pleasure as 38. E. 3. 10. B. You cannot justifie the Entry when your Hawk hath killed a Pheasant in anothers Land and so for hunting of Hares or Conies in the Free-hold of another but although the Law allows and permits such Entries as aforesaid yet the Law requires that such things shall be done in an ordinary and usuall manner as 12. H. 8. 2. A Commoner cannot digge the Land to make Trenches although it be for the benefit of another and this is confirmed and explained by the Statute of 8. Eliz. cap. 15. For although that Statute gives reward for the killing of Vermins yet the Statute further saies that it must be with consent and with reasonable Engines and Devices 2. R. 2. Barr. 237. Grant of Fish in the Pond one cannot dig the Land and make a Sluce but must take with them Nets And so if a man grant to me all his Trees in such a place I I cannot grub up the roots out of the earth if there be any other way to take them but if there be no other way then it is otherwise as 9 Ed. 4. 35. a. A grant to put a Pipe in my Land and afterward it is stopped I may dig to mend it by the opinion of the Court and therefore there being an Ordinary course to wit hunting to kill the Badger the digging for that is unlawfull and the Action will well ly Mich. 36. and 37 Eliz. 60. Nicholas Case expressely for a Fox and Fenner held it was not lawfull to break a Hedge in the pursuit MIles against Jones Pasch 11 Jac. Miles brought an Action of Trespasse against Jones wherefore by force and Arms his goods c. The Defendant pleads that the Plaintiff 5 Jacobi acknowledged a Recognisance of 100. l. at Mich. at which day he did not pay it and that two years after the Recognisance was extended upon his goods because the monies were not satisfied at the day nor at any time after the Plaintiff replies that they were paid in the sixth year of James and desires this that it may be inquired onely by the Countrey and the Defendant likewise and upon the Triall it was found for the Plaintiff and it was new moved in arrest of Judgement by Goldsmith that there was no Issue joyned for an Issue ought to be joyned upon a thing alledged by the party DOyly against White and Webb Trin. 11 Jacobi Doyly brought an Action of Assault Battery and imprisonment of his wife against White and Webb The Defendant pleads a speciall Justification to wit that in November 2 Jacobi an Action of Trespass was brought in the Common pleas by one A. against Julian Goddard and upon the generall Issue it was found for J. G. and Judgement given for her and afterwards and before Execution J. G. takes to Husband the now plaintiff and afterwards brings a Writ of Error in the Kings Bench and upon a Scire Facias against the said Julian the Judgement in the Common pleas was reversed and costs given to A. the plaintif in the Writ of Error and aftewards a Capias ad satisfaciend was directed to the now Defendants to take the said I. G. by Force of which the said Defendants took the woman of the now plaintif with an averment that the said I. G. and the Wife of the now Plaintif were one and the same person and the plaintif demurres upon this plea and Yelverton moved that this justification was not good for divers causes first when the Sherif is to execute a process he is to do it duly and upon the right person at his perill and for that see 11 H. 4. 90. b. If the Sherif take the goods of another in Execution he is a trespassor 5 E. 4. 50. a. If a Capias be to take I. S. and there be two of the same name he ought to look to take the right man at his perill and as he ought to take notice so he must pursue his authority and for this see 10. E. 4. 12. b. if a Capias issue out against I. S. the Son of A. and he take I. S. the Son of B. false imprisonment lies against him and in a Case when his Warrant is against I. G. there is no such J. G. for by her marriage with the Plaintiff she had another name and he is therefore a Trespassor for the taking of J. Doyly and his averment cannot help him because it agrees not with his Warrant and so cannot be intended to be the same person but if the variance was
John W. was seised of three hundred Acres of Land in R. aforesayd of which the place in question called G. is parcell and that 30 H. 6. the sayd John Whithing reciting that whereas N. de la moore 31 E. 1. the Plaintiffs Ancestor Son and heire of H. de la Moore grants to William de la Moore Corsum aque which runs from W. thorow the middle of the Land of the sayd M. And shews further that by meane discents it discends to the Defendant c and so justifies The Plaintiff replies if W. S. was seised of the place where c. and made a Lease thereof to him for yeares and traverses that the three hundred Acres of Land were parcell and Issue joyned upon that and found for the Plaintiff and it was moved in Arrest of Judgement that the Defendant had not made any answer to the Plaintiff and so no Issue joyned for the Plaintiff layes the Trespass in G. in L. the Defendant sayes he was seised of three hundred Acres of which the place c. was parcell but he conveys no title to himselfe but by a course of water thorow the middle of the Land of M. but whose Land that was it doth not appeare and is another thing and therefore an Issue upon that which the Defendant doth not claime is voyd and although Issue be joyned yet it is not helped by the Statute of Jeofailes of 18 Eliz. or 32 H. 8. for it is as no Issue when it is of a thing not in question but if the Issue had been of a matter in question although ill joyned yet it is ayded as Nichols Case is 5 Rep. 43. upon payment pleaded without Deed And Doddridge and Crooke Justices agreed to that but Haughton seemed to incline that it was an Issue and so helped by the Statute FVller against Pettesworth Knight Mich. 11. Iacobi Fuller brought an Action of Trespass against Pettesworth and his Servant for breaking his Close and taking one Cow in D. in the County of B. One of the Defendants plead not guilty the Servant pleads that the Plaintiff holds of Sir Peter P. as of c. in the County aforesayd and for services behinde by the command of his Master he seised the Cow c. The Plaintiff traverses c. and one Venire facias was awarded out of both the Villiages and being found for the Plaintiff it was new moved in Arrest of Judgement by Finch of Grays Inne that two Venire facias ought to have been awarded because the Issue is of things in severall places for if there be severall Issues in one place one Jury shall be onely Impannelled but if in severall places for severall things locall severall Juries shall be but the whole Court held that one Jury onely should be impannelled and one Venu onely should be awarded out of both the places and it is all one as if it had been in one place but it had been otherwise if in severall Counties as 41 Eliz. DAme Petts Case Mich. 11. Iacobi In an Action of Trespass brought by the Lady Petts upon not guilty pleaded the Jury being at Bar the matters following came in question upon the evidence by Haughton and the other Justices If A. be seised of a great Close where c. and a Stranger enter and occupy part of the Close yet notwithstanding A. continues the posaession of the residue whether this shall preserve his possession in the residue and he shall be judged to be in possession of that because it is an intire thing 5 E. 4. 2. and 8 E. 3. 13. Seisin of part of the services is the seisin of the whole and so is Bettisworths Case 2. Rep. The possession of the House is the possession of the Land for the Lessee against his Lessor of that which passes by one demise But if a stranger enter and sever part by metes and bounds nothing is wrought by the possession of the residue Another question was this A Lessee for yeares of ten Acres paying twenty shillings Rent the Lessee is outed of parcell yet he payed all the Rent to him in Reversion the Lessor having notice of the enter whether this protects the Reversion so that nothing is gained by the entry but the interest of the Lessee and shall be no disseisin And Yelverton at the Barr was of opinion that it should be no Disseisin Rithen Sect. 590. saith That so long as the particular Tenant continues his possession so long is the reversion in the Lessor for in such case as to the Lessor the Lessee shall be alwayes deemed in possession by force of the Lease and the reason why the Lessee shall be adjudged in posaession of all as to the Lessor is because the Lessor cannot have notice of the alteration of the posaession for when the Lessee by his owne Act or sufferance doth a thing in alteration of the posaession of which by common intendment the Lessor cannot have or take notice there the Law will not prejudice the Lessor And see for that Farmers Case in the third Rep. 79. If Tenant for life levy a Fine having Land in the same Villiage this shall not bind the Lessor if five yeares pass before he take notice of what Land the Fine is levied And the same Law if Tenant for life make a Feofment to one who hath land within the same Village levies a Fine and in this cafe if the Lessee hath continually payd all his Rent the Lessor cannot intend or suspect but that the Lessee is absolute Tenant of the whole and in Farmers Case it is sayd That if the Lessor levy a Fine the Disseisee is barred without claime for it is impossible but he to whom the wrong is done shall presently know it But if he that hath the particular estate by Grant or trust reposed in him shall secretly practice although he pay the Rent and continue posaession yet it is otherwise But the Reporters opinion was that if in the principall case no Rent had been reserved then the Reversion had been devested by the entry for there had been no act done to mislead or hinder the knowledge thereof and also although rent be reserved and all payd yet if he had express notice thereof the reversion had been devested And secondly if it should be a Disseisin a great mischeif would follow for if a discent should be it would take away the Lessors entry and yet no fault in them because in common presumption the Lessee alwayes continued Tenant but Cook of a contrary opinion for he said it could not be denyed but that the Lessee is out of the posaession and then it follows of necessity that the Lessor must be out of his reversion And as to notice to make his claime he must take notice at his perill 4 M. Dyer 143. b. But note that this is when the Law intends that he may take notice which it will not intend in this Case Haughton was of opinion that it was a
BAnks against Barker Hill 12. Jac. rotulo 1979. In an Action of Trespass the venire facias was well awarded upon the case of the venu in Westown and of the Mannor of D. and the Writ of Venire was mistaken to wit of the venu of Westown and exception being taken after tryall the Court was moved for the amending of the venire facias by the roll and it was denyed because the Jury did come of another venu then they ought by the Law of the Land to come and therefore could not be amended but afterwards the Court seemed to be of an opinion that the awarding of the venu in the roll was mistaken because it was of the venu of the Villiage and Mannor and it should have been of the Mannor only being to try a custome of the Mannor FOrrest against Headle Hill 13. Jac rot 1123. An Action of Trespass brought and a continuando of the Trespass unto the day of the shewing forth the Plaintifs Originall to wit the 20. day of November which day was after the shewing forth of the Originall and because the Jury gave damages for the whole time which ought not to be it was proved that the Judgment upon the verdict might stay but by the whole Court the videlicet was held idle and Judgment given for the Plaintiff COcks against Barnsley Hill 10. Iac. rotulo 2541. An Action of Trespass brought and a speciall verdict found and the question was whether Land held in ancient Demesne was extendable for debt and an action of Trespass brought for that cause And Justice Nichols held it was extendable for otherwise if it should not be extendable there would be a fayler of Justice for if a Judgment should be had against a man that had no other Land but what was in ancient Demesne and that it could not be extendable there would be a fayler of Justice which the Law doth not allow of but an Assize or a re-disseisin doth not lye of Land in ancient Demesne because of the Seisin that must be given by the Common Law and it would be prejudicial to the Lord which the Law allows not and Wynch and Hubbard were of the same opinion For ancient demesne is a good plea where the Free-hold is to be recovered or brought in question but in an action of Trespass it is no plea. And note that by this execution neither the Free-hold nor Possession is removed but only the Sheriffe enters to make execution upon a Judgment had in the Common bench in debt which is a proper Action to be brought there WRight and his Wife against Mouncton Hill 12. Iac. rotulo 43. An Action of Trespass brought to which the Defend pleaded not guilty And the Husband only made a challenge that he was servant to one of the Sheriffs and prayes a processe to the Coroners and the Defendant denies the challenge and therefore notwithstanding the challenge the Venire issued to the Sheriffs and after a tryall exception was taken because the woman did not joyne in the challenge and it was held that the Husband and Wife should joyn in the challenge although the cause of challenge proceded from the Husband only but after tryall it was helped by the Statute of Ieofailes and judgment given for the Plaintiff BIde against Snelling Hill 16. Iac. rotulo 1819. An Action of Ejectment brought and also a Battery in one and the Writ and after a verdict it was moved in Arrest of Judgment because the Battery was joyned with the Ejectment The damages were found severally and the Plaintiff had released the damages for the Battery and prayed Judgment for the Ejectment Winch held the Writ naught but Judgment was given for the Plaintiff notwithstanding STeward and his Wife against Sulbury An Action of Trespass brought wherefore by Force and Armes the Close of the Wife while she was sole at D. hath broken and the wood of the said D. to the value of 1005. there lately growing hath cut down and carried away and in his Count shews that he hath cut downe two acres of wood and exception was taken because he declared of so many acres of wood and not of so many loads of wood to wit twenty c. loads and held by the Court to be a good exception BLackeford against Althin Trin. 14. Jac. rotulo 3376. An action of Trespass brought wherefore by Force and Armes a certain Horse of the said Plaintiffs took away c. The Defendant conveys to himselfe a certain annuity granted to him by one John Hott The Plaintiff shews that one William Hott Father of the said Iohn Hott the Grantor was seised of Land in Fee which Land was Gavel-kind Land and devised it to his Wife for life the remainder to Iohn Hott the Elder and Iohn Hott the Younger his Sonne and the Heirs of their bodies And afterwards William dyed and the Woman entred and was seised for life and the two sonnes entred and were seised in tayl and being so seised Iohn Hott the younger had issue Iohn Hott c. and traverses without this that Iohn Hott the Father at the time of granting the annuity was seised of the Tenements aforesaid with the appurtenances in his Demesne as of fee as c. And the Defendant as before saith that the said J. H. the Father at the time of the granting the annuity aforesaid was seised and after the tryall it was moved in Arrest of Judgment supposing it was mistried because the issue was that the said J. H. the Father at the time of the grant c. And it doth not appear that the said J. H. was nominated Father neither could it appear that the said J. H. was the Father and so the word Father was idle and the Court were of opinion that it was helped by the Statute of Ieofailes and the word Father was idle and judgment was given for the Plaintiff A. brought an Action of Battery against the Husband and Wife and two others the Wife and one of the others without the Husband pleads not guilty and the Husband and the other pleaded seu assault demesne and tryed and alledged in arrest of Judgment because the Woman pleaded without her Husband and Judgment was stayed and a Repleader alledged and this case was confirmed by a case which was between Yonges and Bartram HArvy against Blacklole Trin. 8. Jacobi rotulo 1749. An Action of Trespass brought wherefore by force and Armes his Mare so strictly to a Gelding did fetter that by that fettring the Mare aforesaid did dye If a stranger take a Horse that cometh and strayeth into a Mannor the Lord may have his action of Trespass If my stray doth stray out of my Mannor and goeth into another Mannor the day before the yeare be ended I cannot enter into the other Mannor to fetch out the stray If I take an Horse as a stray and onother taketh him from me the Action lyeth not by the Owner against the second taker
because the first taker hath devested the property out of the Owner The Defendant in this justified the taking of the Mare as a stray and did not alledg that he came as an estray and the Plea was held insufficient and the Court held they could not tye them together And the Defendant said that the Hayward took the Mare and delivered her to the Defendant this was but not guilty and Judgment for the Plaintiff LVttrell against Wood and other Defendants Pasch 40. Eliz. An Action of Trespasse brought wherefore by Force and Armes he broke the Plaintiffs Close and cut down his Trees The Defendant in Barre to the new assignment alledges that he is a Copy-holder for life of the Mannor of Mynehead in the County of Somerset and that in that Mannor there was a Custome that every Copy-holder for life had used at his pleasure to cut downe all the Elmes growing upon his customary Lands and to convert them to his own use when and as often as hee would and so justifies and a Demurrer upon the Barre And the question was whether the Custome was good and reasonable and the later opinion was that it was a good and reasonable Custome but now it is otherwise held Actions of Waste IN Waste the Writ shall be brought where the Waste was committed And the Processe in this Action is Summons Attachment and Distresse peremptory by the Statute of Westminst 2. But at the Common Law the Distresse was infinite And if the Defendant doth not appear upon the Distresse although a Nihil be returned yet the Plaintiff shall have Judgment and a Writ to inquire of damages of the Waste and an Essoine lies as in a Quare Impedit and the Processe shall be executed as in a Quare Impedit and returned from 15 dayes to 15 dayes and the Plaintiff in this Action shall not recover costs but the value of the Waste found by the Jury shall be trebled by the Court for costs shall not be recovered in such Actions as are given by the Statute as in this Action a Decies tantum and Quare impedit And so Judgment is to recover the place wasted and severance lies in this Action Mich. 9. H. 4. rot 104. And note in the tryal of the issue in Waste if the Defendant by his Plea doth not confess the Waste six of the Jury which are impannelled to try the Waste must have the view of the place wasted to the intent that the Plaintiff may be put in possession of the place wasted by the view of the Jury And if the Defendant confesse the Waste the Jury ought only to inquire of the value of the Waste but not who committed the Waste But upon a default upon the grand Distress the Sheriff in his proper person shall repair to the place wasted and there inquire what waste and spoile is done And if he doth not return that he was there in his proper person it is naught But upon a Judgment by non sum informat nil dicit or in a Plea by which the Defendant confesses the waste the Sheriff shall inquire only of the damages And he is not bound to return upon that Writ that he in proper person went to the place wasted And when the Judgment is by default the challenge lies against the Sheriff and if it be denyed it is Errour And if the Plaintiff do not take jungment upon the first distress being returned executed but takes another distress it is Error And no receit lies by the VVife upon the default upon the Distress at the return of the VVrit to inquire of the wast Trin. 6. H. 6. rotulo 133. For if the VVoman at the Assize before verdict doth not pray to be received she shall never be received afterwards in the Court at the return of the Nisi prius And note that the Jury may give severall values and one joynt value of the place wasted but severall values is the better way If a Lessee for yeares makes a Lease of one moity to one man and of the other moity to another man and one of them commit Waste the Action shall be brought against the two for the Waste of one is the Waste of the other if a Lease be made by three to one for life and afterwards two release to the third and the Lessee commits wast he alone shall have a Writ of Waste supposing that hee demised onely If Waste be committed in two Villiages and the Sheriff hath executed his Office naughtily in one Villiage and well in another all shall be inquired of De novo because the whole in Inquisition was but one Inquest at one time but if the Plaintiff assigne the Waste in the Houses and Woods and it doth not appeare by the Count that the Houses were demised and upon a Nihil dicit a Writ to inquire of the damages issues out and the Jury find c. the Plaintiff shall have his of the Houses BEdell against Bedell Trin. 8. Jacobi rotulo 3052. An Action of Waste brought the Case was There is a devise to two for one and twenty yeares the Father and Son and made the Son Executor and he refuses to prove the Will and take the terme and so no Waste committed And if Lessee for life and his Lessor joyne in a Lease for yeares by Indenture and the Lessee for life dye and waste is committed the surviving Lessor shall have the Action of Waste and shall count that he did demise it alone If a Lease be made to Husband and Wife for life and for twenty yeares after their deaths and the Wife dye and Waste is committed the Wife shall not be named in the Wriâ— nor the terme after her death If Husband and Wife during the Coverture make a Lease and Waste is committed they both shall joyne in the Action of Waste And if a Lease be made but for one yeare or for halfe a yeare onely yet the Writ shall be for a terme of years but the Count shall be speciall if a Lessee for yeares or life grants Rent out of the Land he had for yeares and afterwards commits Waste if the Lessor recover the place wasted the Land shall be charged If a Lessee for a hundred yeares grants part of his terme to another and be commits Waste the Action shall be brought against the first Lessee If Tenant for life commits waste and afterwards grants his estate to another waste shall be brought against him in the Tenet and after Judgement a Scire facias shall issue to the Grantee to shew cause wherefore the Plaintiff shall not have Execution of the place wasted and the like if Lessee for yeares commit waste and grants over his Estate Waste shall be brought against him in the Tenet And if a Lease be made for life upon condition that if the Lessee shall do such an Act his Estate shall cease and he doth commit such an Act the Writ shall be brought against the Lessee in the Tenet
747. An Action of waste brought in the Tenuit against the assignee of the Term by the assignee of the Reversion for wast committed in digging of Sea Coals the Defendant pleads in Barr that the first Lessee opened the ground and granted to him all his Interest in the Land with all profits except and alwayes reserved to him his Heirs and Assigns all the Title of the Coal-Mines in the said parcell of Land and all Timber Trees and averres that the Mine in the Land at the time of the Grant made was and yet is open and adjudged no Barr for he had no power to intermeddle with the digging for coals and to except with which he had no power to meddle is void exception and the Defendant was punishable for the waste by the whole Court LAshbroke against Saunders Pasch 41. El. rotulo 1532. or 2592. in waste the Case was in the Lease there was this Proviso to wit povided that the Lessee shall not fell the wood the Defendant pleads the Proviso and saith he hath not demised it and the Question was whether these words provided and agreed are an exception or no and adjudged that the word provided is no exception and the wood was demised The End of the Book An exact Table Alphabetically pointing out the most necessary and pertinent matters of this Treatise contained for the â—ase of the Reader A. AVerrment where necessary 1. 13. Attorney called Champertor where it is actionable 15. Account what processe in it 24. Account against a Bailiff locall 25. Account where the Writ abateth by death 25. Account lyeth not before a Sherif 25. nor against Executor nor an Infant ibid. Account what is a Barre 26. Account where it lies not but detinue 26. Account Judgment upon speciall verdict 26. Accountant shall not wage his law where 26. Auditors their Certificate 25. Allowance to a Bailiff where 25. Action to be revived by Scire Facias 25. Assize for the Office of Clock-keeper 28. Assize in Costs upon non-suit 29. Audita querela 29. Audita querela supersedeas denied where ibid. Administration dur minor 31. Attornment not necessary for acts in Law 33. Assets a difference 34. Action upon penall Statutes not upon the Statute of Jeofails 36. Audita querela bayle put in in the Chancery and good 38. Audita querela for a Purchasor 39. Assumpsit upon marriage 40. Alyen borne no plea in a Writ of Errour 42. Admiralty its Jurisdiction 42. Amendment after tryall 43. Ancient Demesne tryable by Dooms-day Booke 43. Attorney put out of the Roll 44. Attorney scandalized 1 2. Arrest for Felony good where words importing a Felony actionable 2. Attorney called bribing Knave 6. Attornment of an Infant 47 Administration revoked 92 51. Action in England for service beyound Seas 54. Attachment ad satisfaciendum 54. Amendment after imparlance 57. Action for non-performance of an Award 58. Action upon the 24. H. 6. for Election of Burgesses 59 Attachment forraign pleaded 60 Arbitrium nullum pleaded 62 90. Award where void 63 Apprentice when to be sent beyond the Seas 65 Amendment of Imparlance denyed after Errour 69 Award of a thing not in the submission void 69 Appearance on another day saves the Bond where 75 Assets what shall be 77 Acceptance doth confirm an Estate where 79 Appearance pleaded de novo when nought 92 Award void for incertainty 93 Assurance devised to be made by the Plaintiff 94 Abatement for not naming an Infant Executor 102 Action sur le Stat. 32. H. 8. pur Rent arrear 103 Action sur le Stat. 32. H. 8. where it lies not 103 Action lies though a stranger doth carry away the Corn before severance 124 Amendment of Originall after tryall 130 Award where good notwithstanding all do not award 112 Abatement how traversed 144 Amendment in a writ of Errour before the Record removed 144 Avowry in a Rent charge 169 Avowry for an Amerciament in a Court Leet 170 Avowry amended after entry by consent 174 Amends made by a Bayliff not good 173 Avowry exception too late after Judgment entred 171 Avowry for damage feasant 177 Attornment where it is of necessity where not 179 Annuity granted by Will 182 Apportiament where 187 Agreement verball where to be averred where not 191 Advowson will passe per concessionem Ecclesiae 102 Ancient Demesne whether extendible 234 Annuity 235 B. BArretor where actionable 11 Bankrupt Knave where it is not actionable 16 Breach assigned 20 81 Bar where naught 22 Breach that one entred and doth not shew by what title not good 23 Breach by non-payment 24 Bailement upon Habeas Corpus where no cause is expressed 44 Bastard where it is actionable 41 Baron chargeable for femes cloaths 47 Bond pleaded in satisfaction 47 Bona notabilia 62 Bond by the under Sheriffe to the high Sheriffe where good 63 64 Breach assigned in Covenant 73 Breach what 79 Barre another action of the same nature pleaded 82 Breach when not specially to be alledged 90 Bond joynt or several at the Plaintiffs Election 122 Breach upon award not good where 123 Breach not assigned the Plaintiff shal never have Judgement though he have a verdict 105. Bishops Plea shall not prejudice the Incumbent 164 Beasts of a stranger where they are distrainable 170. Battery 134. 195 196. Barr where good 222. Badger may be hunted but not digged for in another mans ground 224 C. COunt incertain 13. Court where it may discharge one arrested 15. Clerks misprision helped 16. Common appurtenant cannot be divided 17. Covenant against an Administrator 19 Covenant and Debt where they differ 19. Covenant against the first Lessee after Assignment 20. Covenant upon a void Lease where it is good 21. Covenant in Law how extendible 22 Covenant against an Executor 24. Covenant against two to levy a Fine various acknowledgement 29 Covenant against more then did acknowledge the Fine amended 29. Commander in trespass liable to Action 31. Copy-hold extendible upon the Statute of Banckerupt 34. Charter of priviledge pleaded 36. Commission high de authority 45 Conversion what makes it 5. Collaterall Consideration where good to maintain Action 3. Count uncertain 6. Consideration not valuable 6. Conspiracy where it will not ly 7. Costs where to be given 46. Count insufficient 48. Creditor administring 52. Costs none upon the Statute of perjury 69. Custome speciall pleaded 69. Contract usurious what not 74. Costs omitted in the Roll Error 76 Costs none against an Executor 80 Costs to be considered multi fariam 100. Challenge insufficient 128. Copy-holder must act according to Custome 133. Concord with satisfaction good Plea in ejectment 133. Court Roll of a Copy-hold traversed adjudged naught 140. 141. Copy-hold purchaser cannot surrender without admittance 134 Chaplains priviledged 162. Court Baron incident to a Mannor 175. Common appendent need to be prescribed 178. Common when it s well found by a Iury 178. Challenge denied 234. Copy-holders their Priviledges within the Mannor 231. Copy-holders custome is above the
of the said Bishop procured the said Grantees to surrender their severall grants accordingly the Church being then full And also after when the Church became void he procured the said Bishop to present him according to the first contract and then the said Penn made a lease to him of the Tenths and after sued others of his neighbours in the spirituall Court for tithes who pleaded the said Symoniacall contract and here Nicholls Serjeant suggested that the Judges Ecclesiasticall would not allow of this Plea there but the Court would not give credit to this suggestion but said that if the Ecclesiasticall Court make exposition of the Statute of 31 H. 8. Against the intent of it that then they would grant a Prohibition or if they should in verity deny to allow of this Plea and for that advised him that his Clyent might offer this Plea another time to them and if they denyed to grant that they would grant a Prohibition Hurrey against Boyer IN Prohibition awarded in the spirituall Court for stay of a Suit there for tithes of Lands which were the possessions of the Hospital of S. Johns of Jerusalem upon suggestion that the Prior of the said dissolved house of S. Johns had this priviledge from Rome which was by diverse Councells and Canons that is that the Lands of their Predecessors which by their own hands and costs they did till they were tied to pay no tithes and then by the Statute of 31 H. 8. chap. 18. Of dissolutions which was pleaded but agreed that this Hospitall was not dissolved by this Act but by a speciall act made 32. H. 8. chapter 24. By which their Corporation and Order was dissolved and their possessions given to the King with all the Priviledges and Immunities belonging to that and the King granted that to the Plaintiff in the prohibition and if he should hold them discharged of payment of Tithes was the question it was urged by Harris Serjeant that this Immunity was annexed to the corporation of the Prior and his Brethren of the said Hospitall and that that was determined by the dissolution of the said Hospitall and doth not come to the King and he saith that so it hath been adjudged in the Kings Bench against the Booke of 10. Eliz. Dyer 277. 60. 2. Coke the Bishop of Winchesters Case 14. B. And the Arch-Bishop of Canterburies Case 47. B. And 18. Eliz. Dyer 349. 16. And he said that it was not given to the King by the Statute of 31 H. 8. of dissolutions for that was given by act of parliament and this was not intended by the Statute of 31. H. 8. As it appears by the Arch-Bishop of Canterburies Case Nicholls Serjeant argued to the contrary And he cited a Cannon made by the Councell of Mag. and another made by Innocent the third In the year 1215. And diverse others and also the Statute of 2. Hen. 4. 4. And 7 Hen. 4. 6. And he said that the Pope had Authority amongst spirituall men and might grant to them freedoms of speciall things and he saith that if Land be discharged of payment of Tithes by prescription of not tithing and this Land came to the King yet this priviledge remaines and also he urged that these priviledges are given to the King by the Statute of 31 H. 8. Of dissolutions by which all Hospitalls as well dissolved lost surrendred granted or c. To the King as those hospitalls which should be dissolved lost c. And by this the possessions lands c. are given to the King in the same plite and case as they were in the hands of the hospitallers themselves and he affirmed the Booke of 10. Eliz. Dyer 277. 60. To be good Law and the Archbishops of Canterburies case 2. Coke 47. b. and the Bishop of Winchesters case 44. b. and 18. Eliz. Dyer 349. 16. and also the words of the Statute of 32. H. 8. 24. gives to the King not only the mannors houses c. but also all Liberties Franchises and Priviledges of what natures names or qualities soever they be appertaining or belonging to the said Religion or the Professors thereof by which he intends that this freedome to be discharged of tythes and so concludes that the Prohibition shall stand see the rest after Easter 9. Jacobi Forde versus pomroy UPon a Prohibition the case was this An unmaried woman being proprietor of a Parsonage tooke to a Husband a Parishoner within the Parish set forth and devided his tythes and those immeadiatly tooke backe and the Husband alone sued for the treble value according to the Statute of the 2. Ed. 6. And two points were moved First if that were a setting forth within the Statute and by the Court that it was not and so hath been adjudged in 43. and 45. of Eliz. and 1. Jacobi If the Husband may sue for the treble value without naming his Wife and to that the Court would be advised for though that the Husband may sue alone where a thing is personall for which he sueth as the bookes of 4. Ed. 4. 31. 7. Ed. 4. 6. 15. Ed. 4. 5. and 11. are yet where the Statute saith that the Proprietor shall have suit for the not setting forth c. The Husband is not intended Proprietor as the Statute intends but the Wife and for that the Wife ought to joyne see more Wagginer and Wood Pasche 8. Jacobi in the Kings bench WAgginer sued Wood in the Court of Requests for that that Wood had estopped his way and in the Bill of complaint there was no expresse of the place the County nor to what place the way did lead and for that it was demurred to the Bill there And notwithstanding they ordered the defendant Wood to answer and the Atturney came and moved the Court for a Prohibition and it was granted to him for they could not determine the right of a way Glover and Wendham HEndyn of Grayes Inne moved the Court for a Prohibition and the case was this A man dwelling in a Parish that is Dale hath land in his occupation in the Parish of Sale the Wardens of the Church of the Parish of Sale and other the Parishoners there make a Tax for the reparation of the Church for Church ornaments and for Sextons wages amounting to the sum of 23 l. And the Tax of the Church being deducted commeth but to 3 l. only And now the forreigner which dwells in Dale is sued in the Court Christian by the wardens of the Church of Sale for his part of the Tax and he praies Prohibition and Hendyn saith he well agreed the case of Jefferies 5. Coke that he should be charged if this Tax had been for the reparation of the Church only for this is in nature reall But when that is joyned with other things which are in nature personall as ornaments of the Church or Sextons wages with which as it seems he is not chargable then Prohibition lies for all Flemming
observed with the feare of God And another Canon That custome of not Tything or of the manner of Tything if they paid lesse then the tenth part see Panormitan upon that seek of the Case between Vesey and Weeks in the Exchequer upon the Statute of 27. H. 8. for the dissolution of small Monasteries Also the Lord Darcy in quo warranto was discharged of purveyance by Patent granted by the King Edward 6. of such priviledges which such a one had and by the same reason the King shall be discharged of Tythes by the Act of Parliament also he remembred the Book of 10. Eliz. Dyer 277. 60. to be resolved in the point and also 18. Eliz. Dyer the Parson of Pekerks case 399. 16. upon the Statute of 31. H. 8. and so concluded and prayed judgment for the Plaintiffe and that the Prohibition should stand and it was adjourned Trinity 9. Jacobi Priddle against Napper UPon a speciall verdict the cause was The Prior of Mountague was seised of an Advowson and of divers acres of Land and the 20. of H. 8. the King licensed him to appropriate that and 21. H. 8. the Bishop which was Ordinary assented and after that the Church became void that the Prior might hold it appropriate and 27. H. 8. the Incumbent dyed so that the Appropriation took effect and was united to the possession of the Rectory Appropriate and also of the Land out of which Tythes were due to the said Prior in respect of the said Rectory and then the Priory is dissolved and the Impropriation and the Lands also given to the King by the Statute of 31. H. 8. which granted the Impropriation to one and the Lands to another And if the Patentee of the Land shall hold it discharged of the payment of Tythes in respect of that unity was the question And Harris Serjeant for the Defendant in the Prohibition that the unity ought to be perpetuall and lawfull as it was adjudged between Knightley and Spencer 2 Coke 47. a. cyted in the Arch-Bishop of Canterburies case and for that unity by or by lease for years or for two or three years as in the case at the Barre shall not be sufficient to make discharge of the payment of Tithes and so it was adjudged Pasche 40. Eliz. Rot. 454. between Chyld and Knightley that is that the unity of the possession ought to be of time that the memory of man doth not run to the contrary And in the argument of this Case it was said by Popham cheif Justice that if no Tithes were paid after the Statute that then it shall be intended that no Tithes were paid before the Statute and so he concluded and prayed Consulation see 2 Coke 48. a. The Arch-bishop of Canterbury for the reason by which unity of possession is discharged of payment of Tithes that is for that that some houses of Religion were discharged by Buls of the Pope and many were founded before the Councell of Lateran and for that it shall be infinite and in a manner impossible to find by any searches the means by which they are discharged the unity is no discharge in respect of it selfe for the reasons aforesaid and none may know if Tithes were paid or not before the union And if Tithes be not paid in time of memory by a house of Religion and they lease of that for years and receive Tiths then the lease expiâ—es two yeares before the Dissolution of the same house the King shall not be discharged of the payment af Tithes by the Statute of 31. H. 8. by Coke and Walmesley against Warburton and Foster Dorwood against Brikinden UPon the Statute of 5 Ed. 3. a man libelled in the Spiritual Court for Wood cut and a Consultation was granted Yet the Defendant in the Court Christian might have a new Prohibition if it appeared the first Consultation was not duly granted So if a man libell for Tithes for divers years and Prohibition is granted for part of the years and after that a Consultation is awarded yet the Plaintiffe may have a new Prohibition for the residue of the time notwithstanding the Statute of 50 Ed. 3. and that it be upon one selfe same libel Admirall Court NOte that the Admirall cannot imprison for any offence but if the Court hath Jurisdiction of the Originall cause and sentence is there given this sentence may be executed upon the Land 19. H. 6. But no Ordinary may meddle out of his own Diocesse 8. H. 6. 3. 2. H. 4. The Parson of Salt-ashes Case That this Court tooke notice of Jurisdiction of all Ecclesiasticall Courts and Ordinaries for they write unto them for tryall of Bastardy and Matrimony And there are 3. Legates First a born Legate as the Arch-bishop of Canterbury and Yorke Remes and Pylazam Second a Latere as all Cardinalls The third a Lagate given as those which have their Authority by commission and Lynwood Provinc saith that the Arch-Bishop of Canterbury as Arch-Bishop cannot meddle out of his Diocesse of Canterbury and his Peculiars but as a Legate borne which is in respect of his Office he hath prerogative and if a man inhabit in one Diocesse and ought to pay tithes to another which inhabits in another Diocesse there the Ordinary ought to prefer the suit to the Metrapolitan but seek what Ordinary shall transfer it Trinity 9. Jacobi 1610. in the Common Bench. Jones against Boyer HEnry Jones Parson of Bishopton sued Bowen the Executor of Holland the last Incumbent in the Arches for Dilapidations upon which a Prohibition was prayed upon the statute of 23. H. 8. for that that it was sued out of his Diocesse which was Saint Davids but it appears that the Vicar generall of the same Ordinary hath made generall request to the Metropolitan to determine that without shewing any cause speciall and if the inferiour Ordinary may transmit any cause but only for the causes mentioned in the statute of 23. H. 8. And if the causes ought to be expressed in the Instrument was the question note that the generall words of the statute of 23 H. 8. chap. 9. Rastall Citation 2. are afterwards many particulars or in case that any Bishop or any inferiour Judge having under him Jurisdiction in his own right and title or by commission make request or instance to the Arch-Bishop Bishop or other inferiour Ordinary or Judge to take treat examine or determine the matter before him or his substitute And that to be done in case only where the Law civill or Canon doth affirm execution of such request or instance of Jurisdiction to be lawfull or tollerable and for the better discussing of this question the Judges had appointed to heare two Doctors of the Civill Law which at this day attended the Court the first Doctor Martin said that these generall words have reference to the Executor and not to the maker of the request and this request may be made for all causes but ought to be made to him which hath
proceedings there And it was granted in so much that the originall ground of the Suit that is the infamous words were pardoned by the generall pardon and for this all the proceedings were erroneous and their transmitting after And afterwards the Prohibition received willingly And for these causes Prohibition was granted to the Court of Requests Thomas Baxter against Thomas Hopes IN Prohibition the Plaintiff Suggests that within such a Town was such a custome that every Inhabitant which maintained a family and dairy for manuring his land and maintenance of his family have used of time out of memory c. to pay tythes of Corn growing upon his Farm in kind and by reason thereof have used to be discharged of after crop of the said land And also that they have used to pay tythe milk and tythe Calves in kind and by reason thereof have been discharged of tythe of yong and barren Beastes and the Plaintiff suggested further that he occupied a Farm and maintained a family and dairy for the manurance of that and maintenance of his family and hath paied his tythe Corn and milk and Calves in kinde And for that ought to be discharged of tythes for the after crop and for yong and barren Beastes and for the tenthes of which suit was begun in the Court Christian and upon demurrer joyned upon Prohibition the custome was debated whether it were good or no and it was moved first by Houghton Serjeant for the Defendant that the custome was not good insomuch that by that the Plaintiff was not to pay more then by the Law he ought for he ought to pay tythe Corne and milk and Calves in kind And this is no more then the Law compells him to do and this cannot be a consideration to discharge him of other things For all things which renue ought to pay tythes of Common Right as after pastute and barren Cattell and Corne and milk And all other things which renue if it be not good custome to the contrary which is grounded upon consideration and then to consider how much consideration shall be valuable in other Cases and what not And to that it appeares in 9. Ed. 4. 18. and 19 in Trespasse upon the Statute of 5. Rich. 2. The Defendant pleads accord that the Plaintiff entred into his land againe and agreed that that was not barr insomuch as agreement without satisfaction is not barr and entry into lands is no more then he might do without the agreement and for that it is not good for default of consideration so in 12. H. 7. 15. a. in trespass for goods taken the Defendant pleads arbitrement that is for that that the Defendant hath taken the goods of the Plaintiff and that he should deliver them to the Plaintiff in full satisfaction And agreed that this is no good award insomuch that this cannot be satisfaction for that that the goods were the proper goods of the Plaintiff And although that he hath his goods againe yet he is not satisfied for the taking But if the award had been that the Defendant should redeliver his goods and carry them to such a place certain at his own costs and charges then it had been good See 45. Ed. 3. accordingly So in an action upon the Case upon an Assumpsit made in consideration that the Plaintiff hath payd due debt is not good for this is no consideration and so in the principall Case the Prescription is not good insomuch that he hath not suggested more or other consideration which by the Law he ought to do But he agreed that if he had suggested that the Plaintiff had plowed and manured the land and disposed of the tythes of the Corn for the benefit of the Parson in other manner then the Law compelled him then the first prescription had been good and so he concluded and praied Judgement for the Defendant Hutton Serjeant for the Plaintiff in the Prohibition seems the contrary and that the Suggestion and Prescription and Custome Contained in that are good And to the Objection that it is no consideration that the Custome may be founded he intended that this is a ground upon immunity subsequent to the Consideration as of things which are not tythable as in the generall Case of things which are for the maintenance of the family for Plowing and Manuring of the land shall not pay tythes as in a suit for tythes for herbage suggestion that they were depastured by labouring Cattell which Plowed and Manured the Land of which the Parson had tythes or small Wood which are cut or imployed for the fencing of a Farm or fuell spent in the Farme shall not pay tythes insomuch that without that the Farme cannot be Manured nor the Famaly sustained And so by consequence the Parson shall not have any tythe Corn insomuch that no Corn will grow without manuring and also the Parson by those hath the more tyth Corn and so he hath consideration in that for the better that the Farme is fenced and manured the more tythe the Parson shall have So the Farmer may be discharged of tythes for Rakeings insomuch that he Mowes and Cocks the tythes for the Parson at his own costs and this is sufficient consideration And also he insisted upon the Statute of 2. Ed. 6. Which provides that tythes shall be payd in the same manner as they were payd for 40. yeares before and he cited one Jessopps case to be adjudged in Prohibition Pasche 36. Eliz. Upon suit in Court Christian for flocks and locks of Wooll And the Custome was alleaged that the owner had woond the tythe for the Parson and in consideration of that ought to be discharged of tythes of locks and flocks if they be not made by Covin to defraud the Parson and these were demanded by the name of wooll dispersed and 18. Eliz it was adjudged that tythes shall not be made for Brick and in Prohibition the suggestion was grounded upon the generall immunity and insomuch that it was made of land for which no tythes are to be payd insomuch that it doth not renue that for this cause tythes ought not to be payd for the Brick which is made of that and so of Mynes and so Loppings and Toppings and bark of Trees shall pay no tythes But are within the Statute of 40. Eliz. 5. of wood to be falne as it is resolved in Soby and Molyns case in the Commentaries And he agreed that for herbage the tenth gate or proffit of that ought to be payd if there be not a custome to the contrary but in the Principall case he intended that that was payd in the Corn and in that the Parson hath recompence and consideration as before and so he concludes and praies Judgment for the Plaintiff Dodrigde Serjeant of the King argued that the Custome is not good as it is here suggested for the consideration is of some things which ought to pay tythes in kind and so upon the matter is no sideration at all
41 Assis The case was this there was a custome that a Park hath paid two shillings a yeare and the sholder of every Deere which was killed for tithes and in consideration of that had been time out of minde c. Discharged of Tithes and now the Park is dis-parked and it was moved by Harris Serjeant that this dissolves the custome for when part of the custome is dissolved by the party himself this determines the residue for it is adjudged if the Land be discharged of tithes by reall Composition then if he sue for tithes in the spirituall Court prohibition by the common Law was granted without other suggestion but only that he sued there for Lay Fee and it was said that it was adjudged 5. Jacobi that where it was a custome that so many of the bucks shall be paid for tithes in such a park yeerly and after the park shall be disparked yet that remaines discharged of Tithes and the custome remaines and Coke cheif Justice seemed that tithes are due by divine right but not what part for if the tenth part be due dy divine right then all Customes are void Trinity 11. Jacobi 1612. in the common Bench. NOte by the Statute of 50. Edw. 3. If a Consultation be once duly granted no new Prohibition shall be afterwards granted upon the said Libell But if it be apparent matter that the first was not duely granted then a new Prohibition may be granted by the whole Court and with this agreed the book of Entries in the Title of Prohibition But this is to be intended to the Spirituall Judge and it seems that the Admirall is out of this Statute see 22. H. 7. Bushes Case NOte that it was agreed in this Case that if a Parsonage be impropriate and the Vicaridge be endowed and difference be between the Parson and the Vicar concerning the endowment that shall be tryed by the Ordinary for the persons and the cause also are spirituall And there the Vicar sues the Parson for Tythes and he suggests the manner of tything and prays a Prohibition and it was granted and after upon solemn argument Consultation was granted in so much that the manner of tytheing did not come in question but the Endowment of the Vicaridg only for that is the Elder Brother as the Lord Coke said and this was cyted to be adjudged by Coke Prohibition Agars Case AGar of Kingston upon the Thames was sued in the Ecclesiasticall Court for beating of his Wife and for calling her Whore and was sentenced by them to pay to his Wife three shillings a weeke for her Alimony and divers Fynes were imposed upon him for not performing of that and also provided that hee should enter into a Recognizance for performance of that and a Prohibition was granted and also a Habeas Corpus to deliver Agar out of Prison Michael 8. Jacobi Blackdens Case BLackden marryed one within age and after disagreed so that they might marry else-where and the first Wife had Issue by other Husbands and dyed and Blackden was sued in the Ecclesiasticall Court by an Informer supposing he had marryed a womon living his other Wife And Blackden proves there the disagreement by which he had sentence for him against the Informer and yet hee was taxed to give to the Informer twenty markes for costs which hee refused to pay and moved to have a Prohibition which was granted For it was injustice to allow Costs to one which had vexed him without cause and when they had given sentence against the Informer Parkers Case Michael 8. Jacobi PArker being a Parson of a Church was deprived by the High Commissioners for Drunkenness and moved for Prohibition but it was not granted and he was directed to have action for the Tythe and upon that the validity of the Sentence shall be drawn in question Doctor Conways Case Michael 8. Jacobi COnway and his Wife were sued before the High Commissioners that is to say the Wife for Adultery with Sir Michael Blunt and the Husband for connivency to that as a Wittall and they were sentenced there for that and costs taxed in July and after the general pardon came and pardoned all offences before the 9. day of November before and upon that the Doctor moved for Prohibition and had that because the offences were not enormious crimes and the Statute and the Commission upon that is to give power to them to proceed upon enormious crimes and to Fyne and Imprison for them Also resolved that the generall pardon hath discharged the Costs though that the Costs were taxed before the Pardon was in Print And this by the relation that hee had at the day before the Costs were taxed Cradocks Case Michael 7. Jacobi CRadock bought diverse things upon the body of the County which concerned the furnishing of a Ship as Cordage Powder and Shot and the party of whom they were bought sued Cradocke for the money in the Admirall Court and Prohibition was granted for the Statute of Richard 2. is that the Admirall shall not meddle with things made within the Realm but only of things made upon the Sea and that no Contract made upon the Land shall be held there And here the Contract was at St. Katherines stairs in the body of the County for it was said that St. Katherines is within London and the Major of London hath jurisdiction upon the Thames as farre as Wapping And if a Murther be committed upon the Thames this shall not be tryed by the Admirall and here Terry and Peacocks Case was cyted which is related in Binghams case in the 2. Reports and also in Sir Henry Constables Case in the 5. Reports and it was cyted to be adjudged that if a Contract be made at Roan in France that shall not be tryed in the Admirall Court for that it was made upon the Land and not upon the high Sea Pasche 8. Jacobi Regis Common Eench Gaudyes case with Doctor Newman THe Parishioners of the Parish of Alphage in Canterbury prescribed to have the Nomination and election of their Parish Clark and the Parson of the Parish by force of a Canon upon voidance of the place of the Parish Clark elected one to the Office the parishoners by force of their Custome elected Cundy the Parson supposing this election to be Irreguler for that it was against the Canon sued Cundy before Doctor Newman Chancellor of Canterbury and the said Cundy was by Sentence deprived of the Clark-ship of the Parish and the Clark of the Parish admitted Cundy moved for a Prohibition and had it granted by all the Court for it was held that one Parish Clark is a meer lay man and ought to be deprived by them that put him in and no others and if the Ecclesiasticall Court meddle with deprivation of the Parish Clark they incura Premunire and the Canon which willeth that the Parson shall have election of the Parish Clark is meerly void to take away the Custome that any Parish had to
any private Prison And it seemes if any do against this Statute that an action of false Imprisonment lies For every one ought to be committed to the Common Goal to the intent that he may be dilivered at the next Goale delivery and also if any be committed to any of the Counters in London unlessthat it be for debt that an action of false Imprisonment lieth for that for these are private Prisons for the Sheriffes of London for Debt only Note in Debt for ten pound the Defendant confesseth five pound and for the other five pound pleades that he oweth nothing by the Law and at the day the Plaintiff would have been nonsuited And it was agreed by all that if he be nonsuited that he shall loose all as well the debt confessed as the other Note the yeare of the Reigne of the King was mistaken in the Record of nisi prius but the Record which remaines in the Court was very well and it was amended For insomuch that it was a sufficent and certaine Issue this was sufficent Authority to the Justices of nisi prius to proceed but nothing being mistaken but the yeare of the Reigne this shall be amended for it is only the misprision of the Clark see Dyer 260. 24 25. 9. Eliz. 11. H. 6. Note also if Tenant in Dower be disseised and the Disseisor makes a Feoffment the Tenant in dower shall recover aâ—l their dammages against the Feoffee for she is not within the Statute of Glocester chapter 1. By which every one shall answer for their time Hillary 8. Jacobi 1611. in the Common Bench. Reyner against Poell See Hillary 6. Jacobi fol IN second deliverance for copy-hold in Brampton in the County of Huntington the case was copy-hold Lands were surrendered to the use of a woman and the Heires of her Body and she took a Husband the Husband and the Wife have Issue 2. Sonnes and after Surrenders to themselves for their lives the remainder to the eldest Son and his Wife in fee the Husband and the Wife dye the eldest Son dies the youngest Son enters and Surrenders to the use of a stranger And the sole question upon which they relied if the Wife was Tenant in tayl or if she had fee simple conditionall and it was argued by Nicholls that the Wife was Tenant in tayl and to prove that he cited 2. cases in Littleton where it is expresly mentioned who may be Tenant in tayl see Sect. 73. 79. And who may have a Formedon see in the discender sect 76. And he grounded that upon reason for that that it cannot be denied But that fee simple might be of copy-hold according to the custome and as well as fee simple as well it may be an estate tayl for every greater containes his lesse and he said that this is grounded upon the reason of other cases as if the King grant to one to hold Plea in his Court of all actions of debt and other actions and then one action of debt is given in case where it lieth not at the common Law yet the Grantee may hold Plea of that But if a new action be framed which was not in experience at the time of the grant but is given after by Statute the grant shall not extend to that and to the Objection that copy-hold is no Tenement within the Statute of gifts c. As to that he saith that that shall be very well intended to be within the Statute as it is used and 4. H. 7. 10. A man makes a gift in tayl by deed the Donee hath an estate tayl in the deed as well as in the Land so Morgan and Maxells case Commentaries 26. And so of Office Honour Dignity and copy-hold also and Dyer 2 and 3. Phil And Mary 114. 61. It is found by speciall verdict that copy-hold Lands have been devisable by copy in tayl and so it is pleaded 2 and 3 Eliz. Dyer 192. b. And when a lesser estate is extracted out of a greater that shall be directed and ordered according to the course of the Common Law and for that the Wife shall have plaint in nature of a Cui in vita and 15. H 8. b. Title Tenement by copy of Court Roll it was said for Law that tayl may be of a copy-hold and that Formedon may well ly of that in descender by protestation to sue in nature of a Formedon in descender at the Common Law and good by all the Justices for though that Formedon in descender was not given but by Statute Yet now this Writ lieth at the Common Law and shall be intended that this hath been a custome time out of mind c. And the Demandant shall recover by advise of all the Justices and the like matter in Essex M. 28. H. 8. And Fitz. affirms that in the chamber of the Dutchy of Lancaster afterwards and also he saith that when custome hath created such Inheritances and that the Land shall be descendable then the Law shall direct the discent according to the Maximes and Rules of the Common Law as incident to every estate discendable and for that shall be possessio Fratris of a copy-hold estate 4. Coke 22. a. Brownes Case b. And there 28. a. Gravener and Tedd the custome of the Mannor of Allesley in the County of Warwick was that copy-hold lands might be granted to any one in fee simple and it was adjudged that a grant to one and the Heires of his Body is within the Custome for be that Estate Tayl or Fee simple conditionall that is within the Custome So he may grant for life or for yeares by the same Custome for Estate in Fee simple includes all and it is a Maxime in Law to him that may do the greater it cannot be but the lesse is lawfull and over he said that in all cases where a man was put to his reall action at the Common Law in all these cases a copy-holder may have plaint with protestation to prosecute in â—…re of the same action and to the objection that there cannot be an Estate tayl of copy-hold Land for that that the Tenant in tayl shall hold of him in revertion and shall not be Tenant to the Lord to that he said that this Estate may be created as well by Cepit extra manus Domini as by Surrender and then there is not any reversion or remainder but it is as if Rent be newly granted in tayl but he said there may be a reversion upon an Estate tayl as well as upon an Estate for life and he did not insist upon the Custome but upon this ground that if the Custome warrant the greater Estate which is the Fee simple the lesse shall be included in that And he did not argue but intended that it would be admitted that discent of copy-hold Land shall not take away entry nor Surrender of that nor shall make discontinuance so prayed Judgement and â—…rne Harris the youngest Serjeant argued for the Plaintiff that it shall be
of the King for the Plaintiff and day given for the argument of that till the next tearm Hillary 8. Jacobi 1610. in the Common Bench. Tresham against Lambe LEwes Tresham was Plaintiff in waste against John Lambe the Plaintiff supposed the Defendant had made waste in sowing and plowing ancient meadow the which he had let to the Defendant for years in Rushton in the county of Northampton and sowed it with Woade and prayed Estrepement upon the Statute of Glocester chapter 13. And upon examination it appears that the Lands let was pasture and Meadow the Pasture was Ridge and furrow but had been mowed and used for meadow for diverse years and that the Defendant plowed and sowed that with Woade but this which had been ancient meadow he used that as Meadow and did not convert that to Arable Land but the Judges would not grant any Estrepement to the Pasture for that it was Ridge and furrow and it was no ancient meadow although that had been mowed time out of minde c. But to the ancient Meadow they granted a writ of Esterpement but Foster seemed to be of another opinion for that that it was to sow Woade for that that it is against common Right and the fume and smell of that is offensive and infectious but if it had been to sow Corne he agreed as above and for the executing the Writ of Estrepement they all agreed that the Sheriff ought to take if need be the power of the County against those which made the waste hanging the Action and may commit them if they will not obey him for the words of the Statute are that you shall cause to keep which shall be intended in safety But if Lessee for years trench or draine that is no Wast as it was now of late times adjudged where if the Lessee takes any of the reasonable Bootes that the Law allowes that it shall be no Waste nor Estrepement shall be granted see Fitzherberts Natura Brevium 59. m. If a man devise Land to his Executors for years this is assetts but if he devise that his Executors shall sell his Lands or devise his Lands to his Executors to be sold this shall be no assets untill the Lands are sold and the money for which the land shall be sold shall be assetts A Record of Nisi prius in an Action of Debt upon an obligation with condition to pay such a sum of Money at such a Feast next after the date of the obligation and the day of the date of the obligation was omitted in the Record of the Nisi prius so that it doth not appear which shall be the next Feast at which the mony ought to be paid after the date and by all the Justices that was no perfect Issue and for that the Justices of Nisi prius have no power to proceed upon it and for that it shall not be amended otherwise if it had been a good Issue though that another thing had been mistaken see Dyer 9. Eliz. 260. 24. And see before the same Tearm here The King pardoned a man attaint for giving a false verdict yet he shall not be at another time impannelled upon any Jury for though that the punishment were pardoned yet the Guilt remaines Hillary 8. Jacobi 1610. In the Common Bench. James versus Reade THE case was the King was seised of a Mannor where there were diverse Copy-holders for life and was also seised of eight Acres of Land in another Mannor in which the Copy-holders have used time out of minde c. To have common and after the King grants the Mannor to one and the eight Acres to another and a Copy-holder puts in his beasts into the eight Acres of Land and in trespasse brought against him by the Patentee of the eight Acres he prescribes that the Lord of a Mannor and all those whose estate he hath in the Mannor have used time out of minde c. For themselves and their Copy-holders to have Common in the said eight Acres of Land and further pleaded that he was Copy-holder for his life by grant after the said unity of possession in the King and so demanded judgment if action against which the said unity of possession was pleaded upon which the Defendant demurrs and all the Justices seemed that though that prescription was pleaded that the common was extinct but it seems also to them that by speciall pleading he might have beene helped and save his common for this was common Appendant see 4. Coke Tirringhams Case 37. 6. Hillary 8. Jacobi 1610. In the Common Bench. Cartwright against Gilbert IN Debt upon an obligation with condition to be and perform an Arbitrement to be made the Arbitrators award that the Defendant should make Submission and should acknowledge himself sorry for all transgressions and words at or before the next Court to be held in the Mannor of P. And for the not performance of that Award the Plaintiff brought this Suit and the Defendant in Barr of this pleads that at the said next Court he went to the Court to make his submission and to acknowledge himself greived according to the Award and was there ready to have performed it but further he saith that the Plaintiff was not there to accept it upon which the Plaintiff demurred and it seemes to Coke and Foster that the Defendant hath done as much as was to be done of his part and for that that the Plaintiff was not there ready to accept the Defendant was discharged for this submission is personall and to the intent to make them freinds and for that both the parties ought to be present But Walmesley and Warburton seemed that it might have been very well made in the absence of the Plaintiff as well as a man may submit himself to an Arbitrement of a man which is absent for this is only to be made to the intent to shew himself sorrowfull for the Trespasses and words which he hath made and spoken and it was not argued but adjourned till the next tearme and the Justices moved the parties to make an end of that for that it was a trifling Suit Hillary 8. Jacobi 1610 In the Common Bench. Sir Edward Ashfeild SIR Edward Ashfeild was bound in an obligation by the name of Sir Edmund and subscribed that with the name of Edward and in Debt brought upon that he pleads it is not his Deed and it seemes to all the Justices that he might well plead that for it appears to them that he is not named Edmund and the originall against him was Command Edward otherwise Edmund and this was not good for a man cannot have two Christian names and if judgment were given against him by the name of Edmund and the Sheriff arrest him by Capias that false imprisonment lies against him But if he have a name given to him when he was christened and another when he was confirmed he shall be called and known by the name given unto him at the time
But in this case before Attornement the Grantee hath nothing and after Attornement the particuler Estate being granted it shall be drownd in the reversion Harris Serjeant the words of the devise are that his Feoffees and all other Persons which after his Death shall be seised shall be seised to the same uses before declared and of one Acre he hath not any Feoffees for of that the Feoffment was voyd and yet it was agreed that the devise was good as Lyngies Case was in 35. H. 8 cited by Anderson in Welden and Elkintons Case Commentaries 523 b. And he argued that though that when a conveyance may enure in severall courses yet it cannot enure for part in one course and part in another course and for that this devise enures as a devise of Land for one Acre and declaration of the use of the Feoffment foâ—…her Acre for it is agreed in Sir Rowland Haywards Case 2. 〈…〉 a. 6. Coke 18. a. Sir Edward Cleeres Case and also in this 〈◊〉 the devisor hath made expresse declaration that the Land shall passe by the Feoffment and that the Will shall be but a declaration of the use of the Feoffment and for that nothing shall passe by the devise with which the Justices seemed to accord and cited a case to be adjudged in the Kings Bench 40. Eliz. where the Father gives and grants Lands to his Son his heires with warranty and makes a Letter of Attorney within the deed to make Livery and adjudged that that shall not enure as a Covenant to raise a use for that that it appeares by the Letter of Attorney that his intent was that that should enure as a Feoffment and not as any other manner of conveyance see 14 Eliz. Dyer 311. 83. Master Cromwells Case and so it was adjudged accordingly Hillary 8. Jacobi 1610. in the Common Bench Gargrave against Gargrave Katherine Gargrave was Plaintiff in a Replevin against Sir Richard Gargrave Knight and the case was this The Father of Sir Richard Gargrave was seised of divers Tenements called Lyngell Hall in Lyngell Hall and of a Moore called Kingstey Moore in another Town and the Tenants of the said Father of Sir Richard have used to have Common in the said Moore and the said Father so being of that seised demised the said Tenements to the said Katherine Gargrave for her Joynture by these words by the name of Hingell Hall and certaine Land Meadow and Pasture in certainty and with all â—ands Tenements and Hereditaments to that belonging or with that occupied and enjoyed now or late in the Tenure of one Nevill and Nevill was Tenant of the said premises and had Common in Kingsley Moore upon which the question was if the said Katherine by this demise shal have Common in the said Moore or not And Hutton Serjeant argued that the said Katherine shall have Common in the said Moore for he said that the said demise shall be expounded according to the intent of the partie 〈◊〉 as it is agreed in Hill and Granges Case Commentaries 270. b. Where a man makes a Lease for yeares of a house and all the Lands to that belonging and though it is there agreed that Land cannot be appurtenant to a house yet this word appurtenant shall be taken in the effect and sense of usually occupied with the Messuage or lying to the house by which it appeares that the words are transferred from the proper signification to another to satisfie the intent of the parties for it is the office of the Judges to take and expound the words which the common People use to expresse their intent according to their intent and for that shall be taken not according to the very definition insomuch that it doth not stand with the matter but in such manner as the party used them And for that this grant shall amount to a new grant of Common in the said Moor for as it seems common or feeding for Cattell may be granted and passe by the name of Tenements Hereditaments or at least shall be included and comprised within the words Tenements and Hereditaments and so shall be construed as a thing occupied and injoyed with the said Messuages see Hen. Finches Case 39. Coke And it was an expresse endorsment upon the demise that the said Katherine should not have Common in the said Moore but it was agreed by all that this was vaine and idle and nothing worth but he urged that this shall have a favorable construction for that it was for Joynture which shall have as favorable construction as Dower And so he prayed Judgement for the Plaintiff and of the other part Nicholls Serjeant argued that this shall not amount to a new grant for he said that they are not apt words to receive such construction for he said that this is no Tenement or Hereditament no Common but only a Feeding for the Cattell of the Lessee in the wast of the Lessor see 20. Edw. 2. Fitzherbert admeasurement and it cannot passe as a thing used with the said house for that was not in Esse at the time of the grant and there is not any apt word to make a new grant â—nd he cited 〈◊〉 Iudgement in Action of wast between Arden and Darcy where Ardon was seised of the Mannor of Curball and also of Parkhall and makes a conveyance of the Mannor of Curball to divers uses and at this time parcell of the Mannor of Curball was occupied with Parkhall as parcell of that and after made another conveyance of all his Lands in England except the Mannor of Curball And adjudged that the Parke which is used with Parkhall shall not be within the exception Coke saith that it was only feeding and not Hereditament for the Inheritance of both was in the Lessor but if it be granted of feeding it shall be intended the same like feeding that the Tenant hath as if the King grant such Liberties as the City of London hath and that shall be good and so it was adjourned Hillary 8. Jacobi 1610. In the Common Bench. Cannige against Doctor Newman IN an Information upon the Statute of 21 H. 8. chapter 13. Of non-residency it was found by speciall Verdict that Doctor Newman was Incumbent invested in the Rectory of Staplehurst in the County of Kent and that hee was also seised of a house in Staplehurst aforesaid scituate within twenty yards of the said Rectory and that the mansion house of the said Rectory was in good repaire and that Doctor Newman held that in his hands and occupation with his one proper goods and did not let it to any other and that he inhabited in the said Messuage and not in the Parsonage the Statute of 21 H. 8 chapter 13. Provides that every Parson promoted to any Parsonage shall be personally resident and abiding in at and upon his said Benefice and in case any such spirituall Parson keep not residence at his Benefice as aforesaid but absent himself willfully by the space
have an Action upon the Statute of Offenders in Parkes for hunting in two Parkes 13 H. 7â—12 and 8 Ed. 4. 〈◊〉 One Action of Trespasse for Trespasses made at severall times and so one Action of Debt for diverse Contracts 11 H. 6. 24. by Martin 3 H. 6. Trespas 3 H. 4. But he argued that in reall or mixt Actions as ravishment of Ward for severall Wards or one Quare impedit for severall Churches this shall not be good Fitz. Ward 52. 3. H. 6. 52. And also he said that the Statute of 32 H. 8. chapter 34. by expresse words gives the same remedy to Grantees of Reversions that the Grantors themselves had and the Grantor without question may have an Action if he have not granted the Reversion and so he concluded and prayed Judgment for the Plaintiff and it was adjourned Hillary 8. Jacobi 1610. In the Common Bench. Sturgis against Dean see T. 65. A Man was bound to pay to the Plaintiff ten pound within ten dayes after his return from Jerusalem the Plaintiff proving that he had been there and the Plaintiff after ten dayes brought his Action upon the Obligation without making of any proofe that he had been there and if that were good or that he ought to make proofe of that before he brings his Action this was the question and also he ought to make proofe then what manner of proofe and it was moved by Haughton that when a thing is true and is not referred to any certain and particular manner of proof as before what shall be done or how the proofe shall be made the party may bring his Action and the other party may take his Issue upon the doing of the thing which ought to be proved the triall of that shall be proofe sufficient and in his count he need not to aver that he had been there see 10 Ed. 4. 11. b. c. 15 Ed. 4. 25. 7 R. 2. Barr 241. And here also the proofe if any should it ought to be made within ten dayes the which cannot be made by Jury in so short a time as it is said by Choke in 10 Ed. 4. 11. b. though that he agreed that when a man may speake of proofe generally that shall be intended proofe by Jury for that that this is the most high proofe as it is said in Gregories Case 6 Coke 20. a. and 10 Ed. 4. 11. b. But of the other part it was said by Sherley Serjeant that true it is that proofe ought to be made for the Defendant as the Case is in 10 Ed. 4. 11. That then such proofe should be sufficient for the Plaintiff may bring his Action before that the Defendant may by possibility bring his Action but where the Plaintiff ought to make the proofe there he ought to prove that before that he bring his Action and it shall be accounted his Folly that he would bring his action before he had proved that but all the Justices agreed that the Plaintiff need not to make any other proofe but only by the bringing of his Action but the Lord Coke took exception to the pleading for that that the Plaintiff hath not averred in his replication that he was at Hierusalem but generally that such a day he returned from thence and he said that a man might returne from a place when he was not at the same place as if he had been neere the place or in the skirts of Hierusalem and upon that it was adjourned see the beginning of that Trinity 8. Jacobi 462. a. Mich. 13. 200. and 204. Hillary 8. Jacobi 1610. in the Common Bench. Wickenden against Thomas THe Case was this 2. Executors were joyntly made in a Will one of them releases a Debt due to the Testator and after before the Ordinary refuses to Administer and it was agreed by all the Justices that the release was Administration and for that he hath made his Election and then the Refusall comes too late and so is void Bedell against Bedell IN wast the case was this A Man seised of Lands makes his Will and of that makes two Executors and devises his Lands to his Executors for one and twenty yeares after his Death upon trust that they should permit A. To injoy that during and to take all the profits all the Terme if he so long lived and if he â—ied within the Terme then that B. should take the profits and so with others remained in the same manner with the remainder over to a stranger in tayl one of the Executors refuseth to prove the Will or Administer and also to accept the Terme the other executor proves the Will Administers the Goods and enters into the Land according to the Lease and that assignes to A. according to the trust reposed in him and after that he in reversion in tayl brings an Action of wast against the Executors which proved the Will and he proved all the matter aforesaid and that before the assignement and that before that no wast was made and it seemes to all the Judges that this was a good Plea for the waveing of one Executor is good and though that he might after Administer as the book of 21. Ed. 4. Is for that the Interest of his Companion preserves his Authority where are 2 or more But if there be but one Executor and he refuseth and the Ordinary grants Administration to another he cannot then Administer againe and Coke cheife Justice cited that one Rowles made the Lord Chancellor which then was the cheife Justice of England and the Master of the Rolls his Executors and died and they writ their Letters to the Ordinary witnessing that they were Imployed in great businesses and could not intend the performance of the said Will and that for that they desire to be free of that and that the Ordinary would committ the Administration of the goods of the said Testator to the next of blood and this sufficient refusall And upon that the Ordinary committed the Administration accordingly And to the pleading that no wast was made before the assignement they all agreed that this was good and so it was adjourned for this time A man sould his Land upon a condition and after took a Wife and died the Heire entred for the Condition broken yet the Wife shall not be endowed so if the Condition had been broken before the Death of the Husband if he had not entred for he had but title of entery Hillary 8. Jacobi 1610. in the Common Bench. As yet Doctor Husseys Case MOore against Doctor Hussey and his Wife and many others in Ravishement of Ward The case was the Ward of Moore was placed at the University of Oxford to be instructed in the liberall Sciences and was married by the Wife of Doctor Hussey to the Daughter of the said Wife which she had by a former Husband And for that Moore brought this Writ against Doctor Hussey and his Wife and the Minister which married them and all
cannot a Copy-holder which hath so base an estate And if this shall be so these mischeifes will insue That is that this base estate should be of better security then any estate at the Common Law for Fine shall not be a Barr of that for it cannot be levied of that also Recovery cannot be suffered of that for there cannot be a Recovery in value neither of Lands at the Common Law neither of Customary Lands for they cannot be transferred but by the hands of the Lord. And to Littleton he agreed and also 4 Ed. 2. which agrees with this where it is said that at Stebenâ—eath a Surrender was of Copy-hold Lands to one and the Heires of his Body but he said that that shall not be an Estate taile for then the Estate hath such operation that this setles a Reversion and Tenure betwixt the Giver and him to whom it is given but this cannot be of Copy-hold Land for this cannot be held of any but only of the Lord and to the others this Estate doth not lye in Tenure and yet he agreed that of some things which did not lye in Tenure Estate Tail may be but Land may be intailed but Copy-hold Estate is so base that an Estate tail cannot be derived out of it so that though that custome may make an Estate to one and the Heires of his Body yet this cannot be an Estate taile but Fee-simple conditionall and also he agreed that they might have Formedon in Discender but it is the same Formedon which was before the Statute as if Tenant in Fee-simple conditionall before the Statute would alien before issue but it was no Estate taile with the priviledges of an Estate taile before the Statute and to the other matter of Surrender that is the admittance of the parties which is an Estate taile that doth not conclude the Court as it appears by the Lord Barkleys Case in the Commentaries where the Estate pleaded severally by the parties is not traversed by any of them and so concludes and prayes Judgment c. And this case was argued again in Trinity Tearme next ensuing by Montague the Kings Serjeant for the Defendant and he said that there are three questions in the case First If Copy-hold land may be intailed Secondly Admitting that it may be intailed if Surrender makes discontinuance Thirdly If it shall be Remitter and to the first he seemed that it might be intailed and that it shall be within the Statute of Westminster 2. And first for the Antiquity of that he said that Littleton placed that amongst his Estates of Free-hold and hath been time out of minde and is a primitive Estate and not derived out of the Estate of the Lord and the Lord is not the Creator of that but the means to convey that after that it is cerated and what is created then shall have all the priviledges and Benefits which are incident to it and shall be nursed by the custome and is time out of minde and the Law alwaies takes notice of it and he cited 24 H. 4. 323. by Hankf Bracton Fitz. Na. Bre. 12 C. and Brownes Case 4. Coke which is not simply an Estate at the will of the Lord but at the VVill of the Lord according to the custome of the Mannor and when it hath gained the reputation of Free-hold then it shall be dircted according to the rules of the Common Law and 2. and 3. P. and Ma. Dier 114. 60. allow Copy-hold Estate to be intailed and he saith That no Statute hath more liberall exposition then the Statute of Westminster 2. 45. Ed. 3. Incumbrance shall not charge the Issue intaile also a Copy-holder shall have a Cui in vita also a Copy-hold is within the Statute of Limitation and so upon the Statute of buying of pretenced rights And it is alway intended when a Statute speakes of Lands and Tenements that Copy-hold Lands shall be within that And he saith That all the Objections which have been made of the contrary part are answered in Heydons Case but he relyed upon that that every reall Inheritance is within the Statute of Westminster 2. 4 Ed. 2. Formedon lyeth of Copy-hold Land 25 Ed. 3. 46. Estate tayle is of a Corrody and office which proves that Copy-hold is a reall Inheritance and for that shall be within the Statute 46 Ed. 3. 21. Gavelkinde Land may be intailed 6 Rich. 2. Avowry 2. 8. Rich. 2. 26. Copy-holder shall be charged with Fees of a Knight at Parliament 22 and 23. Eliz. Dier 373. 13. Lands in ancient Demesne were intayled and he said that the reason is that for that it is Inheritance and time hath applyed them to an Estate and so concluded and prayed Judgment for the Defendant Hutton Serjeant argued for the Plaintiff that Copy-hold Lands cannot be intailed for that is but a customary Estate and the Law doth not take any notice of it but onely according to Custome for there were no Estates tayle before the Statute for then all were Fee simple absolute or conditionall that is either implyed or by limitation which cannot be of an Estate tayle which is not within the Statute of Westminster 2. for no Actions are maintainable by that but those which are by the Custome and a Writ of false Judgment See Fitzherberts Natura brevium 12. 13 Ed. 3. F. Prescription 29. that it hath no Incidents which are incident to Estates at the Common Law without Custome as Dower See Revetts Case and so is Tenancy by the Curtesie and there shall be no discent of that to take away Entry and so of other derivatives And he seemed that it is not within the Statute for three reasons apparent within the Statute First That it is hard that Givers shall be barred of their reversions but in case of Copy-holds the Giver hath no remedy to compell the Lord to admit him after the Estate tayle spent but onely Subpena and in this Case the Lord may releive himselfe for the losse of his services for that the Statute provides no remedy for him Secondly That the Statute doth not intend any Lands but those of which there is actuall reversion or remainder and those which passe by Deed so that the will of the Giver expressed in the Charter may be observed and of which there may be a subdivision as Lord Mesne and Tenant for there shall be alwayes a reversion of the Estate tayle and the Donee shall hold of the Donor and not of the Lord. Also it seems that the Statute doth not intend to provide for any but those for whom the VVrit in the Formedon ordained by the Statute lyes and agreed that for Offices and such like Formedon lyeth if the party will admit Estate tayle to be discontinued Also the Statute intends those things of which a Fine may be levyed for the Statute provides that the Fine in his owne right should be nothing but by Copy-holder Fine cannot be levied and for that he shall not be within the
the street shall be devisable and he claimes by force of a Devise made according to that custome and adjudged that the custome is not good for it is inconvenient that in one self same ancient Town one house shall be devisable and another not and upon that the Plea was amended so here custome that a Copy-holder may sell all the Trees is inconvenient for it doth not appeare that this Custome extended to any other but to him Secondly this Custome is against the Common Wealth for every Custome ought to have preservation and maintenance and that shall not be here for when one Copy-holder hath sold all the Trees the Successor shall not have any Boots nor Fire and so by the same reason he may pull down the house And so this tends to destruction and rests in the will of a man if he will distroy or not And this is inconvenient that such power should be given to one which hath but an estate for life as in 14. Ed. 3. Barr 277. Copy-holder pleads Custome of a Mannor that that Copy-holder which comes first after a windfall falne shall have it and resolved to be void Custome for that it rests in the will of a man if he will finde that or not So in 5. H. 7. 9. Custome that if one find Beasts doing Dammage that he may distraine them and have foure pence for his Dammages and adjudged void Custome for the Dammages are nncertaine and for that it is no reason that the Fine shall be certaine and 19. Eliz. Dyer 358. 46. Custome that all Devises and Leases granted for more then six yeares are meerly void forthwith is a void Custome because contrary to common reason and the liberty of one which hath Fee simple So 2 Hen. 4. 24. Custome that the Tenants of the Mannor shall not use their Common till the Lord put in his Beasts is void for it should not depend on the Will of the Lord So in the principall case the Lord cannot grant Copy-hold Estate in reversion for it depends upon the Nomination of his Tenant and for that the Custome shall be void Thirdly The Copy-holder hath prescribed to do a thing which is contrary to his Estate and doth not cohere with his Estate that is that Lessee for life shall cut the Trees for he hath but a speciall property in that and not the â—bsolute property and it is like to a Case in 19 Ed 3. Feoffments 68. and 19 Assise 9. Where Commander of an Hospitall prescribes that he and his Predecessors which have had the same office have used to make Leases for lives and in an Action brought by the Prior it was adjudged that the custome is void and so by consequence the Lease was void for the Commander hath no Estate to make it so in Forsâ— and Hemlings Case 4. Coke and 3 Ed. 3. F. Dat. Custome that a married Wife may make a Will is void for it doth not stand with the quality of her person so here it is not with the quality of the Estate but it may be objected that it is a greater Estate then an Estate for life for it is perpetuall Free-hold to that it may be answered in this case it is no greater Estate then for life for the Copy-holder hath only made nomination but he which was nominated was not admitted so that the Tenant hath no greater Estate nor the Lord hath granted greater Estate then for life but admit that he be Tenant for life with a Remainder for life to him to whom the nomination is made yet he cannot do such an act and for that the cutting down of the Trees shall be a forfeiture of his Estate by custome by which the Estate is created and copy-hold Lands are not as other Lands which if they were let for Life at the common Law the Tenant were dispunishable for wast till the Statute of Glocester for it was the Folly of the Lessor to make a Lease to such a person which would make wast and for that as the benefit and Priviledge of the copy-holder remaines so the benefit of the Lord shall not be abridged and so he prayed Judgment for the Plaintiff Haughton Serjeant seemeth the contrary for the Defendant and he agreed that Customes ought to be reasonable and if they be generally inconvenient they cannot be reasonable and to the first exception to prove that it is a new Custome that is that it is found that he is onely Tenant in possession without saying Without Remainder as it was in the first Case to that he thought if it were true that the Copy-holder hath such priviledge that he might nominate his Successor it is not materiall and to the lessening of the Fine that is found very certaine for he that is nominated at the first requires admittance and if the Lord refuse that he shall be admitted for such a Fine that the Homage Assess and so it is found and that is very certaine and the rather for that that this is a speciall Verdict Also he agreed as before That Custome ought to be reasonable and if it be generally inconvenient though it be not mischeivous yet it shall not be good and to the Case of 40 Assis 37. Custome to devise the Tenements on the South side of the Street is not good for that that Custome cannot be in one particular place certaine and also he agreed the Case of Windfall for that tended to charge the Lord 3 Eliz. Dyer 299. 57. 58. Custome to have Herriot the best Beast and if that be put out of the way before seisure then the Lord may seise and take the Beast of any other mans there arising and lying downe to his owne proper use and the custome held voyd and unreasonable So the custome in 20 H. 7. to have so much for every Pound-breach is voyd but this custome is meerly between the Lord and Tenant and the custome hath made that discendable Inheritance and also may have reasonable beginning and the Lord hath benefit for that that is his Fine for the admittance of him which is nominated and custome hath created other Estates as Grant to him and his is good by the custome and so the Cases of 21 Ed. 4. and 22 Ed. 4. before cyted for the turning of Plough upon the Land of his Neighbour So the custome if the Lord feed the Beasts of his Tenant that he may Fold them and so he concluded that the first custome to make nomination is good and to the second custome he agreed that bare Copy-holder for life could not Prescribe to cut and sell all the Trees no more then custome that Tenant for life may devise as 35 H. 6. But here the Tenant hath perpetuity in his Estate and may nominate his Successor and as well as the Common Law allows Tenant after possibility of Issue extinct to make waste so may custome allow Tenant for life with such nomination power to cut and sell the Trees Also he intended admitting the custome not good
that yet the Copy-holder hath nor forfeited his Estate for the Trees and the Mannor are granted by severall Grants and for that though that they are by one selfe same Deed yet by that the Trees are severed from the Mannor and the Trees are the cause of the forfeiture and they are no parcell of the Mannor as in 31 Edw. 3. Assis 441. by sale of a Castle the services are extinct So here the forfeiture cannot accrue to the Mannor when that commeth by reason of Trees which are severed by reason of severall Grants and he thought that the Grant shall be taken more strong against him which made it as if a man in the Premises give Fee-simple to have in tayl the Estate tayl shall be precedent and the Fee-simple depending upon that so if a man have the next avoydance of a Church and the Church becomes voyd and after he purchase the Advowson yet the Presentation remaines as it was before for that is the best thing and so it is resolved in Herlackendens Case 4 Coke 63. b. That if a man makes a Lease for yeares of Land except the Trees and after grants the Trees to the Lessee that the Trees are not reunited to the Land and so he concluded that it shall be no forfeiture and prayed Judgment for the Defendant and this Case was argued againe Michaelmas 9 Jacobi by Shirley for the Plaintiff that the first custome was voyd insomuch that he claimed to doe a greater thing then his Estate would warrant as in 35 H. 6. Custome that if one Pawne the Goods of another that he which hath them Pawned may keep them whosoever they were is not good as Custome that the Tenant in tayle may devise is voyd for his Estate will not warrant it and it is prejudice to the Tenant in reversion So Custome that Copy-holder shall have Common and another Custome that none shall put in his Beasts till the Lord put in his 2. H. 4. 24. Also there is no Fine Limited to be tendred by the Tenant or to be demanded by the Lord And if a Copy-holder refuse to pay his Fine it is a Forfeyture and if the Custome do not provide for the Fine of the Lord as for the Copy-holder the Custome shall be void Also here cannot be admittance for Littleton saith that the sole meanes to transfer Copy-hold is by Surrender And here if the Custome should be good the copy-hold should be transferred by Nomination only and so the Lord should be Defeated of his Fine and it seemes also that the second Custome is void for it is contrary to the Estate of a copy-holder to sell all the Trees but he agreed that he might have Estovers for houseboote and hedgboote as it was adjudged in Swayne and Becketts Case and he cited the 19. assis Where a Commoner made a Lease for life and void for that that the Estate would not support it 9. H. 6. 56. and 11. H. 6. 40. Prescription to sell Estovers is void for Estovers are appropriate to a house And also it was adjudged in this Court between Poltocke and Powell that a copy-holder for life cannot prescribe to sell the Trees for it is contrary to his Estate as if a Custome be that if a Feoffor die his Heire within age that he shall be in Ward as 8. H. 6. And he thought that the Nomination was no alteration for he to whom the Nomination is made hath only an Estate for life when the Nomination is made and that doth not warrant the sale of the Trees and to the third it seemes that the Lord of the Mannor bargaine and sells the Trees and after lets the Mannor to the bargainee for years and then copy-holder makes wast he thought that the Trees were not severed from the Mannor as in 33. H. 8. 48. Dyer 2. if a man bargaine and sell a Mannor and after in the same Deed makes a bargaine and sale of an Advowson appendant this remaines appendant So if a man bargaine and sell a Mannor and also the Trees do not passe till Livery be made of the Mannor So if Lessee for yeares gives and grants the Land and makes a Letter of Attorney to make Livery the tearme passes without Livery and then it is a Forfeyture And here the Lessee shall have the benefit of Shade and Burrough and the Trees themselves during the Tearme as parcell of the Land and then when the copy-holder hath done more then his Estate will warrant this is a forfeyture and the Lessee shall take the advantage of it and so he praied Judgement for the Plaintiff Harris for the Defendant that the Customes are good but admitting that so yet the Plaintiff shall not take advantage of it and he argued that Custome ought to have two properties first reasonable secondly ought to have time to make that perfect and then shall be good as it appears by the examples of Littleton f. 37. of Burrough English and Gavelkind and custome may be against common right but not against common reason which is the common Law 8 Ed. 4. 18. 21 Ed. 3. 4. And he intended here that the second custome is good if the first be good for then it is perpetuall Free-hold and Copy-hold Estate of Inheritance is but an Estate at will at the Common Law and yet such Copy-holder may dispose the Trees as well as custome may create the Estate as well may it give such priviledge as custome may warrant the taking of Toll for passing over the soile of another 22 Assise 58. And so custome to have the Foldage of the Beasts which feeds upon his soil is good but custome for paying the Goods of another is not good for there is not any recompence but fishing in the Sea and to dig the soile adjoyning for landing of his Nets is good for this is for the publick good 8 Ed. 4. 23. So the custome for turning upon head-land of another is good and is for the preservation of Tilling and also it is between Lord an Tenant and shall be intended to have a reasonable beginning for consideration c. That this continues for he hath Fines and other Services and yet 3 Eliz. 199. Dyer If the Lord claim Harriot of his Tenant and if it be Esloyned alledge custome that he may take the Beasts that he found upon the Land in Withernam and this was adjudged unreasonable custome so 20 H. 7. 13. Custome to have three shillings of a stranger for pound-breach is void but of a Tenant is otherwise for it shall be intended to be a lawfull beginning 11 H. 7. 40. So here the beginning shal be intended to be lawfull and for valuable consideration and for this it shall be good and to the second custome it follows by consequence to be a good custome if the first should be good and then to the third he agreed that Copyholder cannot make wast and if he do it shall be a forefeiture of his Estate as it is said
by Hull 9 H. 4 Wast 59. but this ought to be such Wast that is prejudiciall to the Inheritance as it is agreed in Herlackendens case 4 Coke Where it is agreed that the Bargainee hath severall Interests in the Land and in the Trees and by the Writings by the making of the Lease of the Mannor they are not reunited and annexed to the Free-hold again and then the cutting and selling is no prejudice to him in reversion and so no Wast to make forfeiture and so he concluded and prayed Judgment for the Defendant and is adjourned see the beginning fol. Trinity 9. Jacobi 1611. In the Common Bench. As yet Doctor Hūfreys Case see Hillary 8. Jacobi IN the Writ of Ravishment of Ward between Francis Moore Esquire Plaintiff against Doctor Hussey and Katharine his Wife Robert Wakeman Clark and many other Defendants Dodridge the Kings Serjeant argued for the Defendant Doctor Hussey that a marryed Wife is not within the Statute of Westminster 2. chapter 35. By which the Writ of Ravishment of Ward is given that which before the Statute was only Trespasse is by the Statute altered in manner and form of proceedings and in penalty of Judgment and he thought that this Writ being formed upon the Statute doth not extend to a married Wife for by the Statute if the Defendant cannot satisfie for the marriage he must abjure the Realme or shall have perpetuall Imprisonment which goes neer to every man next unto his Life the love of his Country and liberty and those the makers of the Statute did not intend against a married Wife and he grounded his argument upon these words of the Statute by which it appears that the makers of the Statute did not intend any person which had no property in any Goods nor power to make satisfaction For first the Statute provides that if he be able to make satisfaction that then he should satisfy if not that then he shall abjure the Realme by which it appears that the Statute intends those that have property and by possibility may satisfy but a woman cannot for her marriage is a gift of all her goods personall to her Husband see for that Fox and Girtbrookes Case Commentaries Secondly The Statute provides new form of proceedings for if the Ward or any of the parties dy hanging the Writ the Writ shall not abate but it shall be revived by Resummons by or against the Executors of him that is dead by this it appears that he which hath no power to make Executors shall not be intended to be within the Statute and a married Wife cannot make a Will and by consequence cannot make Executors see Coke 6. a. Forse and Hemblins case 3 Ed. 3. Devise 13. 4 H. 6. 6. and if the Executors have no assets then the statute gives remedy against the Heir Thirdly The Statute intends to give action against him which may have possession of the ward the which a married Wife cannot have for her possession is to the use of the Husband and by the words of the statute he against whom the Action is given ought to be made Fidei possessor and to the objection that though that the Wife married cannot by any possibility have sufficient to make satisfaction according to the intent of the statute yet if the Husband hath sufficient he shall answer for his Wife as in 48 Ed. 3. 26. and 17 H. 6. A married wife shall be attached by the Goods of the Husband he saith that there the reason is that the Wife is answerable by the Husband but this is only to make him to appear but he against whom the action is given by this statute ought to have property and in such cases a married Wife shall not be punished as in the same Parliament Westminster 2. chapter 25. Is provided that if a Disseisor faile of Record that he shall be imprisoned in Assise for this is the speedy remedy but if a married wife pleads a Record and failes of that to the Jury she shall not be imprisoned though that the Assise was brought against the Husband and the Wife or against the Husband and the wife is received see 1. 3 Ass 1 44 ass 3. 17. as 19. 11 H. 4. Also the statute of Conjunctim Feoffatis fol. 99. Which was made in the time of the said King Ed. 3. in which time the statute of Westminster 2. was made and is contemporary with the same statute by which it is provided that if any plead Joyntenancy which is found against him in the Assise that he shall be imprisoned by the space of a yeare and 16 Assise 8. Husband pleads Joyntenancy with his wife and maintaines the Exception which is found against them and resolved that the Wife should not be imprisoned by this statute 21 Assise 28. 31 Assise a. accordingly and he said there was not any president nor Book of Record by which it appears that a Writ of Ravishment of Ward was maintained against a marryed Wife for Ravishment after the Coverture but for Ravishment before the Coverture see 6 and 8. Ed. 3. and to the Objection that the Plaintiff hath election if he will have the sufficiency come in question may but admit the Defendants to be sufficient and then the imprisonment nor the abjuration shall not be inflicted as it seems to be some opinion 8 Ed. 3. 52. and to that he saith that the admittance of the parties cannot alter the Law for if it were not the intent of the makers of the Statute that this should extend to the Wife the admittance of the parties will not make that extend over the provision of that also it seems to him that the Verdict is not perfect for that it is not fonnd by whom the VVard was married but only that he appeared marryed and it ought to be without the consent of the Plaintiff and for that it might be that he was marryed by the Plaintiff and then there is no cause of action nor to have the value of the marriage and it appears by 22 R. 2. Damages 130 that they ought to inquire by whom he is marryed and also the value of the marriage and if it doth not appear whether he be married or not then the Verdict shall be conditionall and the Judgment also and all the Presidents are he appears married without the assent of the Plaintiff and so he concluded and prayed that the Judgment might stand Harris Serjeant for the Plaintiff prayes Judgment and he supposed that it is in the choyce of the Plaintiff what Judgment he would have for he ought to have Dammages and the value of the marriage and it remaines in the discretion of the Plaintiff what judgment he will have that is upon the Statute for to have the corporall punishment or allow the Defendants to be sufficient and so to have judgment for the Damages and the value of the Marriage without any Imprisonment or Abjuration as in 29 Ed. 3. 24. and 8 Ed. 3. 52. where
is now out of the Statute for the advancement ought to be continuing until the death of the Father And so he saith also it was adjudged in Butler and Bakers Case that if a man devise Socage Lands and after sell to a stranger for good consideration his Lands held by Knights service this devise is now good for all for hee hath not any Land held by Knights service at the time of his death and so he concluded that the devise was good and prayed Judgement for the Plaintiff Houghton Serjeant for the Defendant he thought the contrary and hee argued that before the statutes of 32. and 34. of H. 8. men were disabled to devise any Land and for that they cannot provide for their Wives Children or for payment of their Debts and for remedy to that Feoffments to uses were invented and then to dispose the use by their Wills and then experience finds that to be inconvenient and then the statute of 27. H. 8. transfers the use into possession and then neither use nor land was deviseable without speciall Custome and then this was found to be mischeivous after five years experience and then was the statute of 32. H. 8. made and where by the statute of Marlebridg of those which did enfeoff their begotten sons a Feoffment by the Father to his son and Heir was void for all Now by this statute this is good for 2. parts and void only for the 3d part that for the good of the Lord but as to the party that is good for all as it is agreed in Mightes case 8 Coke Then to consider in the case here if all things concur that the statute requires and to that here is a person which was actually seised of Land held by Knights service in 12. Eliz. So that it is a person which then was having within the statute 2. If here be such conveyance for advancement of his children as is intended within the statute and to that he seemed that so notwithstanding that it may be objected that here is no execution to the youngest children insomuch that it is first limited to such Farmers and Tenants c. But he intended that this is no impediment Secondly also there is a limitation to the use of his last Will. Thirdly also there is a limitation to the use of such persons to whom he devises any estate by his Will But these are no impediments for the last is no other but a devise to himselfe and his heirs and there is not any other person knowne but meerely contingent and it is not like to a remainder limited to the right heirs of I. S. for there the remainder is in Abeiance but here it is only in contingency and nothing executed in Interest till the contingency happen and the not having of a son at the time shall not make difference as in 38. Edw. 3. 26. in formedon in Remainder where the gift was in one for life the remainder to another in tayle remainder in fee to another stranger and he in remainder in tayle dyes without Issue in the life time of the Tenant for life he in remainder in fee may have formedon in remainder without mentioning the remainder in tayle But here he intends that the devise shall be void in respect of the Lands first conveyed which were held in cheife by Knight service for the words of the statute are by act executed either by devise or by any of them and they are conjoyned and it is not of necessity that the time of the Conveyance shall be respected but the time of the value And notwithstanding that the Testator doth not mention any time But in so much as the provision of the statute is to save primor seisin and livery to the King as if the man had 20 l. by year in Socage and one acre in cheife and makes a conveyance of all that it shall be void first to the livery and priâ—or seisin to the third part So if he make conveyance of the 20 l. by yeare and leave the said acre held in cheife to discend and after that purchase other Lands to the value of the third part of all the conveyance of the 20 l. land notwithstanding which for the advancement of his Wife Children or payment of his Debts for he had a full third part at the time of his death which discended And he supposed that the having of a dry reversion depending upon the estate tall is sufficient having within the words and letter of the Statute and yet he agreed the ease put in Butler and Bakers case that if a man devise his Socage Lands and after alien his Lands held in cheife by Knight service to a stranger bonafide this is good So if he had made a reservation of his Lands held in chiefe to himselfe for his life in so much that his estate in that ended with his life and hee remembred the case cyted in Bret and case Comment That if a man devise a Mannor in which he hath nothing and after hee purchaseth it and dyes the devise is good if it be by expresse name But when a man hath disposed of two parts of his Land the Statute doth not inable him to devise the Residue but he hath done all and executed all the authority which the Statute hath given to him But he agreed also that the reversion is not such a thing of value which might make the third part discend to the Heir but it is uncertaine as a hundred and the other things of uncertain value contained in Butler and Bakers Case And also he intended that the remainder could not take effect insomuch that the condition is precedent and it is not found that the eldest Sonne hath aliened and then dead without Heir male and so he concluded and prayed Judgment for the Defendant In Replevin the Defendant avows for 9 s. Rent the Plaintiff pleads a Deed of feoffment of the same Land made before the Statute of quia emptores terrarum by which 6 s. 8 d. is only reserved and demands Judgment if he shall be received to demand more then is reserved by the Deed See 4 Ed. 2. Avowry 202. 10. H. 7. 20. Ed. 4. 7. Edw. 4. Lung 5 Ed. 4. 22 H. 6. 50. This Deed was without date and it was averred that it was made before the Statute of quia emptores terrarum which was made in the 18. of Edw. 1. And also it ought to be averred to be made after the beginning of the Reign of Richard 1. For a writing after the beginning of his Reign checks prescription But if a man hath a thing by grant before that he may claim by prescription for hee cannot plead the grant insomuch it is before time of memory and a Jury cannot take notice of that and for that the pleading before with the said averments was good If debt be due by Obligation and another debt be due by the same Debtor to the same Debtee of
against the surviving Donee of houses and Lands to him demised and agreed that the Writ was good but it was a question if the Count shall be generall or of a halfe only notwithstanding that both the parties were Tenants in Common of the reversion Michaelmas 1611. 9. Jacobi in the Common Bench. Ralph Bagnall against John Tucker after 83. TRINITY 9. or Micaelmasse 8. Jacobi Rot 3648. The Case was Copy-holder for life remainder for life purchaseth the Frehold and levies a Fine with Proclamations made five yeares-passe and then he died if the remainder were bound by the Fine or not was the question and it seemes that it shall not be Barr for he is not turned out of possession in right So if a man hath a Lease for remainder for yeares and the first Lessee for yeares purchase the free-hold and levie a Fine with Proclamations and five yeares passe this shall not barr the remainder for yeares insomuch that this was Interest of a Tearme and remaines an Interest as it was without any alteration and it was not turned to a Right And yet it was agreed that the Statute of buying of pretenced rights extends to Copy-holds See Lessures Case 5. Coke 125. See Pasche 1612. for the Judgement Note if an Attorney of this Court be sued here by Bill of Priviledge he ought not to find Bayle But if he be sued by Originall and comes in by Capias then he ought to find Bayle In covenant upon a Lease made by the Dean of Norwich Predecessor to the Dean that now is and the then Chapter of the Foundation of Ed. 6. King for injoying of Land devised to the Plaintiff for three Lives discharged of all incumbrances and also to accept surrender of the same Lease and to make a new and for breaking of covenant the same Dean and Chapter in such a yeare of the Raine of H. 8 had made a lease for years not determined by which the lands devised were incumbred upon which the Defendant demurred And Hutton Serjeant for the Defendant argued that the Lease was by the Statute of 13 of Eliz. as to the successor of the Dean which made it for that it was a Lease for years in being at the time of the making of that as it is resolved in Elmers Case upon the Statute of 1 Eliz. if a Bishop makes a Lease for years and after makes a Lease for life the Lease for life is void to the Successor and so it is in the case of Dean and Chapter and though that the words of the Statute are generally that such a Lease shall be void to all intents purposes and Constructions yet he intended that it shall not be voyd against the Bishop himselfe as it was resolved in the case of the next Advowson by the Bishop in Singletons Case cyted in Lincolne Colledge Case 3. Coke 59. b. And he intended if the Lease be voyd against the Successors that then the covenants also are void as it is agreed in the 28 H. 8. 28. Dyer 189. 190. and he cited one Mills case to be adjudged in the 29 and 30. Eliz. in the Kings Bench that if a Parson make Lease and avoid by non-Residence the Covenants also are void as well as the Lease and also he intended that the Lease for life was void insomuch that it was to be executed by a Letter of Attorney and the Attorney had not made livery till after two Rent dayes were past and for that the Livery was not good for when a man makes a Lease for life rendring Rent with Letter of Attorney to make livery here is an implyed condition that Livery shall be made before any day of payment be incurred and it is as much as if a man had made a Lease for life without any Letter of Attorney to make Livery before such a day there if the Attorney do not make Livery before the day but after the Livery is void insomuch as it is contrary to the Condition so in the case here for if Livery made be after a Rent day it may be made after twenty and so immediately before the end of the Tearme and if the Rent be void for this cause the Covenants also are void and if a man bargain and sell his Mannor and the Trees growing upon it the Trees do not passe without Inrollment insomuch that it was the intent of the parties that it should so passe and for that they do not passe without the Mannor also he intended that the Count is repugnant insomuch that that containes that the last Lease for life was made in the time of Ed. 6. and after by the Dean and Chapter of the foundation of Ed. 6. and after that containes that the same Dean and Chapter have made a former Lease in the time of H. 8. Which cannot be if the Dean and Chapter were of the Foundation of Ed. 6. and for that the Count ought to have contained the alteration of the foundation as in case of prescription as in Tringhams case 4. Coke 38. Wyat Wilds Case 8 Coke 79. 2. and 3. Phil. and Mary Dyer 124. A good Case and he intended that a declaration ought to have precise certainty as in 8. and 9. Eliz. 254. Dyer for a thing which cannot be presumed shall not be intended as it is agreed in Pigotts Case 5 Coke 29. a. otherwise of Plea in Barr for that is sufficient if it be good to common intent also he intended that there is variance between the Count and the Covenant for the declaration is that the Dean and Chapter covenanted with the Plaintiffs the Covenant is generall that is that the Dean and Chapter covenant and doth not say with who and for that the Count also shall not be good and so he concluded and prayed Judgment for the Defendant Haughton Serjeant for the Plaintiff intended that the Covenants shall not be voyd notwithstanding that the Lease it self be voyd he intended that a lease made by a Parson shal be good against himself but it shall be voyd by his death to the Successor but a Lease made by a Dean and Chapter shall be void to the Dean himself and the Covenant shall be in force notwithstanding that the Lease be void insomuch that the Covenants are collaterall and have not any dependance upon the Lease but to the inherent Covenants which depend upon the Lease and the Estate as for Reparations and such like shall be voyd by the avoidance of the Lease but he intended that Covenant to discharge the Land from incumbrances doth not depend upon the Interest but it is meerly collaterall and for that it shall not be void and with this difference he agreed all the Cases put of the other part as in 45 Ed. 3. 3. Lease was made to the Husband and Wife the Husband dies the wife accepts the Land and shall not be charged with collaterall Covenants notwithstanding that shee agrees to the Estate insomuch that they do not depend
so these words of the Writ are not answered and so no Tenant is returned at all And it is not like to the Case in 2 H. 4. for there the Return was according to the Exigent of the Writ but here it is not so And to the first matter he intended and agreed that an Executor of an Executor may sue execution had by the first Executor insomuch that hee comes in in privity But he said that so it is not in this case and that there is no difference betwixt this case and the case cyted in Shelleys case that is that Administrator of Administrator shall not sue execution insomuch that he comes in peramount Administrator and accords with this Case 2 Eliz. in the Lord Dyer If two Joynt-Tenants are and one makes a Lease for years rendring Rent and dyes the Survivor shall not have the Rent insomuch that hee commeth in peramount him and to the other he intended that the speciall non-tenure is a good plea as well in Scire facias to have execution of damages as of Free-hold as in 24 Edw. 3. 31. and 5 H. 5. 1. and 9. H. 5. 11. It is resolved that in Scire facias speciall non-tenure is a good Plea and the books of 8 H. 6. 31. cyted before there is Joynt-tenancy pleaded to one part and speciall non-tenure to the other part by Lease for years and the question is if it might be pleaded a part And in 8 Edw. 4. 14. Is Scire facias upon Recovery by Writ of Right Patent in base Court and that the Defendant cannot plead release of the Lessor and so the joyning of the Mise may be forfeiture of his Estate And he said that it was adjudged in 16 Edw. 3. Scire facias 5. that scire facias to have execution of a Fyne shall not be sued against a Lessee for years but against him which hath the Free-hold but where Debt or Damages are to be recovered there it may be sued against him which hath only Lease for years insomuch that the possession is to be charged and so he concluded and prayed Judgement for the Defendants and it is adjourned Michaelmas 1611. 9. Jacobi in the Common Bench. Crogate against Morris THe case was this Copy-holder prescribes to have common in the Waste of the Lord and brings action of Trespasse against a stranger for his Beasts depasturing upon the Common there and Harris Serjeant argued that this action is not maintainable for two causes First insomuch that he is a Commoner for as it is said by Brook Justice 12. H. 8. 2. a. Commoner cannot have an action of Trespasse for the Common is not Common but after the Commoner hath taken that and then before that he hath taken that he hath no wrong nor damage but the damage is to the Tenant of the Land As if a Lessee for years be outed and he in reversion recovers in Assise hee shall not have damage insomuch that the damage was made to the Lessee and the 22 Assis 48. 15 H. 7. i 2. b. agreed that Commoner cannot maintain action of Trespas nor no other but the owner of the Soil but 13 H. 8. 15. by Norwich 15 H. 7. 6. 5 H. 7. 2. 24 Edw. 3. 42. Commoner may distrain and avow for doing damage 2. He intended that this action is not maintainable insomuch that every other Commoner may also have the action of Trespasse for if it be wrong to one it is wrong to every one of them and so the stranger shall be infinitely punished as in Williams Case 5 Coke 72. b. where it was adjudged an action of the Case doth not lye for the Lord of the Mannor to prescribe that a Vicar ought to administer the Sacraments in his private Chappell to him his Men-servants and Tenants within the Precincts of the said Mannor and adjudged that it doth not lye insomuch that then every of his Tenants might also have action and so the Vicar shall be alwayes punished So in 27 H. 7. 27. a. A man shall not have an action upon the Case for nusance made in the high way so it is 5 Ed. 4. 2. for trenching in the high way see 33 H. 6. 26. a. accordingly and so he concluded that the action is not maintainable and prayed Judgement for the Defendant Dodridge the Kings Serjeant to the exception which hath been made by the other party that the Plaintiff ought to averr that he hath Beasts which ought to Common there and that his Beasts have lost their Common that need not to be averred but it shall be pleaded by the other party for if he have distrayned the Beasts of a stranger doing damage he need to averr no more in this action and to the other matter and the two Objections which have been made by the other part First that the Commoner hath no right to the Common till he have taken it by the mouth of his Beasts to that he said that the Commoner hath right to that before that it be taken by such mouths of his Beasts and notwithstanding that it seems by the time of Ed. 1. That Commoner cannot grant his Common till he have Seisin of that yet 12 H. 8. is otherwise and that a Commoner may have an action the name implyes for he hath Common with others and a stranger which is no Commoner cannot do wrong but this is damage to him and he cyted Bracton 430. that there are two forms of Writs 1. Cursitory Writs 2. Commanding Writs The first of those which are formed and are of course and the others such of which there is no form but are to be formed by the Masters of the Chancery according to every particular Case So that there is not any Case but that the Law affords a Writ and remedy for that as in 28 Edw. 4. 23. Action upon the Case was framed against an Officer which gave priviledge to one as his servant which was not his servant and it is not like to the Case in 11 H. 4. 47. a. where a School-master brings an action upon the Case against another for erecting of a School in the same Towne to his damage but this was damage without Injury But here the Commoner hath received wrong and damage but yet he agreed that the Commoner could not have action of Trespass why he broke his Close for that is proper for the owner of the Soile But it hath been agreed to him that he might distrain them doing damage and the reason of that is insomuch that he hath received damage and amends may be tendered unto him in recompence of his damages without any regard to other Commoners as it is agreed in 24 Edw. 3. 42. And to the Objection that if one Commoner may have action then every Commoner may have the action and so the stranger shall be infinitely punished And to that he said it is a Publique losse and private and when the publique wrong includes private damage to any man there he
a possibility only which cannot be granted surrendred or released and yet he agreed that if Lessee for life grant or demise the land all his Estate passeth without making of any particuler mention of it as it is agreed in 10. Eliz. Dyer And for that when the Lessee hath devised the Lands to his Father for his life that which remaines is only a possibility for it doth not appeare for what yeares the Sister shall have it and for that meerely uncertaine 7. Eliz. Dyer 244. The King Ed. 6. appropriated a Church to the Bishop to take effect after the death of the present Incumbent the Bishop after that makes a Lease for yeares to begin after the death of the Incumbent and void for the uncertainty for the Bishop hath no perfit Estate but future Interest which is meerely impossibility and with that agreed Locrofts Case in the Rector of Cheddingtons Case 1. Coke where Lessee for yeares makes assignement of so many of the yeares as shall be to come at the time of his death and void for the uncertainty insomuch that it is meerely possibility for that which may be granted or surrendred ought to be Interesse Termini at least And he supposed it could not be released insomuch that he to whom the release is made hath all the Tearme if he lived so long and so he concluded and praied Judgement for the Plaintiff Harris Serjeant for the Defendant argued that the first devisee had two Titles one as Executor and another as a Legatee and before entry and after that he had entred also the Law doth adjudge him in as a Legatee and before that he enter he may that grant over notwithstanding that he hath not determined his Election for the Law vests the property and possession of that in him before any entry but to make an election there ought to be some open Act done as it is agreed in Welden Eltingtons Case where that the first devisee which was Executor also made expresse claime to have the Tearm as Legatee and not as Executor and so vested the remainder also see Com. 519. b. And so in Paramore and Yardlies Case Lessee for years devises his Tearme to his Executor during his life to educate his Issues the which the Executor doth accordingly and this open act was resolved to be a good election and in Mannings case 8 Coke 94. b. The Executor which hath the 1. Estate devised to him saith that he to whom the Remainder was limited shall have it after his Death and this resolved to be a good Execution and election and it is there resolved that such Election made by the particular Devisee is a good Execution for him in remainder but here is not this Election to have this as Legatee nor Executor for there is not any overt Act made by which this may be done Secondly he conceived that this is no remainder but Executory devise as it is agreed in Mannings Case and that this may be done by Devise which cannot be done by the party by act Executed and for that he conceived that there is no possibility but an Estate Executed and vested in him which is Executor though there be no election made nor Execution of the Legacy and admitting that it is but a possibility yet he conceived that it is Propinqua possibilitas insomuch that the Tearme is longer then it may be intended that any man might live insomuch that Adam lived but 950. yeares and this is five thousand yeares which is longer then any man in the world ever lived and he said that it is agreed in Fullwoods Case that possibility may be released to a possession and with this agreed the opinion of Strange in the 9 H. 6. 64. And so warranty may be released which is meerly in contingency as it is agreed in Littleton and power of revocation may be extinct by release of him that hath the possession of the Land and so he concluded and prayed Judgment for the Defendant Nicholls Serjeant for the Plaintiff conceived that the Remainder is in Esse and not determined by the Release And first he conceived that the Remainder was executed insomuch that the Release was made at the Request of the Father which was the first Devisee for this shewes his assent and implies that he took notice of his Remainder and assented to it and he sayd it was adjudged in Doctor Lawrences Case that the speaking of these words by the Executors that is that they were glad of the Devise was a good Execution and assent of the Legacy Secondly He conceived that it is only possibility and for that cannot be released or granted and he saith that the Law hath great respect of possibilities that Estates may revert and for that it is adjudged in the 13 of Richard 2. Dower 55. If Tenant for life grants his Estate to him in remainder in tayl for his owne life the Tenant enters takes a Wife and dies she shall not be Indowed but the Tenant for life shall have it againe and it shall be as it had been let to a stranger and to this purpose also he cited 18. Ed. 3. 8. Counter-Plea of voucher 8. And it was adjudged in Middletons Case 5. Coke 28. a. that an Executor before probate of the Will may release a Debt but not an Administrator before Administration granted see Com. 277 278. Fox and Greisbrookes Case and in 6. Ed. 3. Lessee for anothers life rendring Rent the Rent was behind and the Lessor releases to the Lessee all Debts he For whose life dies and there the Release determines and discharges the arrerages for it is a duty and Debitum is Latine as well for Debt as for duty also release bars the Lord and Writ of deceit for reverser of a Fine levied of land in ancient Demesne as it is 7. H. 4 and yet Littleton saith that release of a futrue thing shall not be a barr and for that if Conusee of Statute Merchant release all his Right in the land yet he may extend the Statute 15. assis And so if a mad man release and after come to his wits and dies Quere if the Heire may have a Writ of non compos mentis And he said that it was adjudged in the 25. of Eliz. If an Infant levie a Fine and after he levies another Fine this shall be a Barr in a Writ of error for the reversing of the first otherwise of a release And here to the principall case to a release made by the Son in the life time of his Father without warranty And so upon all these cases he concluded and prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant argued that the acceptance of Release by the first Devisee shall not be execution of the Devise as it was adjudged in Barramores and Yardleys case by the Education of the Issue or a Devise upon condition to pay money and the Executor pays it this is a good execution
name So by Custome as the Custome that if a Copy-holder will sell his Copy-hold Estate that he which is next of blood to him shall have the refusall and if none of his blood then he which Inhabits in the neerest part of the part of the ground shall have it before a stranger giving for that as much as a stranger would and the Lord shall have him for his Tenant whether he will or no for it shall be intended that so it was agreed at the first and it is reasonable and if it had not been ruled and adjudged before yet he conceived it might now be a rule and adjudged insomuch that it is so reasonable and good and for the second custome that is for the custome of cutting of Trees by such Copy-holder which hath such priviledge he conceived also that it was good But he agreed that a bare Tenant for life cannot be warranted by custome to do such an Act as it was here adjudged between Powell and Peacock But here he had a greater Estate then for life for he hath power to make another Estate for life and shall have as great priviledge as Tenant after possibility c. which is in respect of Inheritance which once was in him and he may do it for the possibility which he hath to give to another Estate as it is agreed in 2. Ed. 4. that a Lease fo a hundred yeares is Mortmain in respect of the continuance of it so here for the Estate may continue by such power of nomination for many lives in perpetuity and that as when at the Common Law they have in reputation and opinion of Law a greater Estate may cut and sell Trees so here insomuch that the Estate comes so neere to Inheritance he conceived that he might cut the Trees by the custome and that the Custome is good and so he concluded that Judgement should be given that the Plaintiff should be barred in respect of Customes and then to the third that is when a man lets Land and by the same Deed grants the Trees to be cut at the will and pleasure of the grantee there the Lessee hath distinct Interest But if the Lessor by one selfe same clause had demised the Land and the Trees there the Intendment is But notwithstanding that there are severall clauses and that he hath distinct Interests yet he conceiveth that the Trees remaine parcell of the Inheritance and free-hold till they are cut and are severed only in Interest that is that may be felled and devided by the Axe for Tythes shall not be paid for them if they exceed the growth of twenty yeares not it shall not be Felony for to cut those and burn them And it is not like to an Advowson for that may be severed and for that he conceived that if the Custome had not warranted the Cutting and Selling that the Copy-holder had forfeited his Estate and that the Lord might very well have taken advantage of it and 29. assis 29. A man sells Trees to be cut at Michaelmasse insuing and before Michaelmasse Haukes breed in them the seller shall have them by which it appeares that the property is not altered So that though they are not parcell of the Mannor yet they are parcell of the Free-hold insomuch that they are not severed in Facto And he agreed that Lessee for yeares of a Mannor shall take advantage of Forfeiture and need not any presentment by the Homage and Littleton fol. 15 saith that the Lord may enter as in a thing Forfeited unto him and so for attainder of Felony And if a Copy-holder makes a Lease for yeares by which he forfeits his Copy-hold Estate And after the Lord grants the Mannor for yeares the Lessee of the Mannor shal take advantage of this Forfeiture made before he had any Estate in the Mannor without any presentment by the Homage But here in this case the Custome warrants the cutting of the Trees by the Copy-holder and for that he concluded all the matter as above that the Plaintiff should take nothing by his Writ Coke cheife Justice agreed and he said that Fortescue and Littleton and all others agreed that the Common Law consists of three parts First Common Law Secondly Statute Law which corrects abridges and exp'aines the Common Law The third Custome which takes away the Common Law But the Common Law Corrects Allows and Disallows both Statute Law and Custome for if there be repugnancy in Statute or unreasonablenesse in Custome the Common Law Disallowes and rejects it as it appeares by Doctor Bonhams Case and 8 Coke 27. H. 6 Annuity And he conceived that there are five differences between Prescription and a Custome And all those as pertenent to this cause First in the beginning Pugnant ex Diametro for nothing may be good by prescription but that which may have beginning by grant and also prescription is incident to the Person and Custome to some place and holds place in many Cases which cannot be by grant as in 11 H. 4. Lands may be devised by Custome and so discent to all the Sons as in Gavelkind and to the youngest Son in Eurrough English and others like which cannot have their beginning by Grant but prescription and Custome are Brothers and ought to have the same age and reason ought to be the Father and Congruence the Mother and use the Nurse and time out of memory to Fortifie them both Secondly they vary in quality for prescription is for one man only and Custome is for many if all but one be not dead Thirdly they vary in extent and latitude for prescription extends to Fee-simple only but Custome extends to all Interests and Estates whatsoever as appeares by pleading for Tenant in tayl for life or yeares cannot prescribe in what Estate nor against the Lord in his Demesnes but they ought to alledge the Custome and against a stranger they ought to prescribe in the name of the Lord and for that prescription b. Copy-holder of Inheritance may sell the Trees is not good but such Custome is good and 5. Ed. 3. 24. And the old Reports 196. One Tenant being a Free-holder prescribes to have Windfalls and all Trees-which are withered in the Top and if the Lord makes them in Cole to have so much in money And so if they sell and this for Sale and this was not-good insomuch that it is alledged in the person as prescription but if it had been alledged as Custome and to be burnt in his house then it shall be good as appendant and 14. Ed. 3. Barr 227. Wilby saith to be adjudged that prescription to have Turbary to be burnt in his house is good but not to sell and 11. H. 6. 17. accordingly by which it appeares that this may be very well by Custome and cannot be by prescription Thirdly he conceived that where a man may create an Estate without nomination there he may create that by nomination And also that which may be done by the
if a Copy-holder be of twenty Acres and the Lord grants Rent out of those twenty Acres in the tenure and occupation of the sayd Copy-holder and name him There if this Copy hold Escheat and be granted againe the Copy-holder shall hold it charged for this is now charged by expresse words Trinity 8. Jacobi 1610. In the Kings Bench. Goodyer and Ince GOodyer was Plaintiff in a Writ of Error against Ince and the Case was this Ince brought an Action of Debt upon an Obligation in the Common Bench against Goodyer and had Judgment to recover and by his execution prayed an Elegit to the Sheriff of London and another to the Sheriff of Lancaster and his request was granted and entred upon the Roll after which went out an Elegit to the Sheriff of Lancaster upon a Testatum supposing that an Elegit issued out to the Sheriff of London which returned Nulla bona and Quod Testatum sit c. That the Defendant hath c. in your County c. upon which Elegit upon this Testatum the Sheriff of Lancaster extended a forme of the Defendants in a grosse sum of a hundred pounds and delivered this to the party himselfe which sold that to another and now the Defendants brought a Writ of Error and assigned for Error that this Elegit issued upon a Testatum where no Writ of Elegit was directed to the Sheriff of London and so this Writ issued upon a false supposall and upon that two points were moved in the Case First As this Case is if this were Error in the Execution or not Secondly Admit that it were Error if the Plaintiff shall be restored to the tearme againe or if to the value in Money and it was moved by Davenport of Grayes Inne that this was no Error and to that he took this difference That true it is when a man brings an Action of Debt in London and hath Judgment that without request of the Plaintiff he is to have his Elegit to the Sheriffs of London where originally the Action was brought and in such Case he cannot have Elegit to the Sheriff of another County without surmise made upon the returne of the first Elegit and the surmise ought to be true or otherwise it is Error but where upon the request the Elegit is granted to both Counties at the first and so entred upon the Roll It seems to him that insomuch that he may have both together that if the surmise be false that this is but a fault of the Clarke which shall be amended and shall be no Error and to that he cyted the Case of 44 Edw. 3. 10. Where an Elegit issued upon a Recognizance of a hundred Markes and the Writ of Extent was a hundred pounds and the Sheriff extended accordingly of the Land of the Defendant and he came and shewed this to the Court and praied that the Writ should abate and a new Writ to the Sheriff that he might have restitution of his Tearme and Thorp said this is but a misprison of the Clark and the Roll is good and he shall have the Land but till the hundred markes are Levied and after this you shall have restitution of the Land which case proves as he conceives that if the Roll warrant a writ in one manner and the Clark makes it in another manner that this shall not be Error and so in this case the Roll warrants an Elegit originally to the Sheriff of Lancaster and though that this is made upon a Testatum this shall not be Error because warranted by the Roll And to the second point he would not speake for if that were no Error the second point doth not come in question Hillary 7. Jacobi 1609. in the Kings Bench. Marsam against Hunter IN Trespasse the case was this Copy-holder of a Mannor within which Mannor the custome was that the Copy-holders should have Common in the wast of the Lord The Lord by Deed confirmes to a Copy-holder to have to him and his Heires with the appurtenances and the point was insomuch that his Copy-hold was now distroied whether he shall have his Common or not And Davyes of Linclones Inne argued the Common is extinct and his reason was that this Common was in respect of his Tenure and the Tenure is distroid Ergo the Common and he cited the case of 5 Ed. 4. fol. ult Where the office of the King of Herraulds was granted to Garter with the Fees and profits Ab Antiquo and also ten pound for the office and there it is resolved if the office be determined the Annuity is determined also and the case in 7. Ed. 4. 22. b. Where an Annuity was granted to John Clark of the Crown and for Tearme of life and after he was discharged of the office and the oppinion of the Justices then was that the annuity was determined and in 19. Ed. 3. Assis 83. 12 Assis 22. A man gives Land to his Daughter and I. S. within the years of marrying in frank-marriage the Husband sues Divorce the marriage being dissolved the Wife from whom the Land first moved shall have the Land againe so in the principall case insomuch that this common was in respect of Tenure the Tenure being distroied the common is gone and this was all his argument and he prayed Judgement for the Plaintiff and another day Brautingham of Grayes Inne seemed that the common remaines for three reasons First of the nature of a prescription and to that there are three manner of prescriptions First personall prescription and in that Inhabitants may prescribe as for a way or matter of ease as it is said in 7. Ed. 4. 15. Ed. 4. and 18. Ed. 4. and 6. Coke Gatwoods case Secondly reall prescription and this is Inherent to the Estate and this is where a man prescribeth that he and all those whose Estate he hath c. Thirdly locall prescriptions an that is where a man prescribes to have a thing appendant or appurtenant to his Mannor and this is so fixed to the Land that whether soever the Land goes the prescription is concommitant unto it and it seemes to him that this common is annexed to the Land by prescription and so locall and cannot be seperated but alwaies shall go with the Land into who soever hands that comes but Dixit non Probant And for this he supposed that the custome of Copy-hold is that the Copy-hold shall discend to the youngest Son if the Copy holder purchase the Free-hold and the Fee-simple of the Copy-hold so that this is made Free-hold this shall discend to the youngest Son so if a Copy-holder by custome is discharged of payment of Tythes in kind so the office of the master of the Rolles hath many liberties pertaining to it and this is granted but Durante placito yet if the King grant that in Fee as he may yet he shall have all the Fees and Priviledges annexed to that and so it seemes to him that
this common being annexed to the Land though that the Estate be increased yet the common remaines his second reason was of the manner of conveiance and that was by confirmation and if that conveiance had been by Feoffment peradventure the common had been gone But a confirmation enures allwaies upon an Estate precedent and though that this somtimes inlargeth the Estate yet this doth not alter the Estate as to any priviledges annexed to it his third reason was of the matter of the confirmation and that is that he hath confirmed it with the appurtenances and this seemes to him admitting that the common had been extinct yet these words with the appurtenances amount to a new grant of a common as in the case of Corody in 22 Ed. 4. 17. and 18. If the King grant to one such a Corody as I. S. had he shall have so much bread and beere as I. S. had so here when he grants and confirmes that with the appurtenances this is with all such priviledges as I. S. had so here when he confirmes with the appurtenances this is with all the priviledges that the old Estate had and so this should be a grant of such common as was annexed to that and so it seemed to him for these reasons that the common remaines to which it was said by Davies of the other part that he agreed al the manners of Prescriptions but he denied that it was a locall Prescription that is to Land but only to an Estate and this proves well the words of the Prescription for the Copy-holder ought to prescribe that is that every customary Tenant within the Mannor c. So he hath his common in respect that he is customary Tenant and this is in respect of the Estate which he hath by the Custome and not in respect of the Land and that this shall not enure as a new Grant he cited a case to be adjudged Michaelmasse 43. and 44. Eliz. in the Kings Bench Rot. 367 Where in Trespasse the Defendant justifies the lopping of Trees in the wast of the Lord where the custome was that every Copy-holder might shride the Trees in the wast of the Lord and that he was a Copy-holder there and the Lord granted to him the Inheritance of his Copy-hold with all such Lands Tenements and Commons of Estovers pertaining to the Copy-hold and adjudged that insomuch that the Customary Estate was distroied this custome was not now annexed to the Land but being determined with the Estate cannot be said appertaining to it and for that the Justification ill and it seemed to him to be all one with the principall case and it was adjourned and after in Michaelmasse Tearme 8. Jacobi It was adjudged that the Common was extinct and not revived Hillary 7. Jacobi 1609. In the Kings Bench Proctor against Johnson THE Case hath depended seven yeares in this Court upon a Writ of Error was this Two Joynt Tenants for yeares of a Mill one grants his Estate severally to another and dies the Grantee doth not enter yet The other reciting the Lease to him made and to his companion joyntly and that his companion died so that all belonged to him as Survivor as he intended grants all the Mill to Johnson and all his Estate Right and Interest in that And covenants that the Grantee there shall continue discharged and aquitted of all Charges and Incumbrances or other Act or Acts done by him and after binds himselfe in a Bond to performe all Grants Covenants and Agreements contained in the Indentures according to the intent and meaning of the parties and after the Grantee of his companion entered into the halfe and the question was If the Bond were forfeit or not and it was adjudged in the Common Bench that the Obligation was forfeited And the matter was argued this Tearm in this Court by Yelverton of Grayes Inne that the Bond shall not be forfeited for the Bond was with Condition to performe all Grants c. According to the true intent and meaning of the parties and then let us see what was the intent of the parties and suerly this appeares by the recitall in the Indenture and for that he said that all appeares to him as survivor as he conceived so that he was doubtfull of that and for that his meaning was that if he had all then to grant all and if he had but a moity then to grant but the moity and this proves well the words subsequent where he saith that he granted the Mill and all his Estate Right and Interest in that so that he did not intend to grant more then his Estate and these words subsequent qualifie the generall words precedent and so it seemes to him that the Obligation shall not be forfeited And Sir Robert Hitcham the Queens Attorney to the contrary and that the Bond was forfeited for he hath bound himself to perform all grants and he hath not performed his Grant for he granted all the Mill and then though but a moity passeth yet he shall forfeit his Bond if the moity be evicted and for that if a man which hath nothing in the Mannor of D. makes a Lease by Deed indented to J. S. and binds himself to performe all Grants though that nothing passes yet if he enter and be ejected he shall have Debt upon his Obligation and he cited one Yelvertons Case to be adjudged but did not tell when where a man which hath nothing in the Mannor of Dale covenants with J. S. to stand seised to the use of him and his Heirs at Michaelmas and before Michaelmas he purchases the Mannor of Dale and it was resolved that no use shall be raised at Michaelmas for he had not the Mannor at the time of the Covenant and also it was resolved that no Action of Covenant lies upon the Covenant but he sayd that it is a cleer Case that if he had entred into a Bond to perform all Covenants in the Indenture that the Bond shall be forfeited though that he could not have action of Covenant upon the Covenant and also he sayd that he well agreed the Case of the Lady Russell which was adjudged also but Nescio quando where a man made a Lease for years of the Mannor of Dale except one Acre the Lessee binds himself to perform all agreements and after the Lessee enters into the Acre this shall be no breach of the condition for this exception is no agreement for nothing shall be sayd an agreement in an Indenture but that which passeth in Interest and so he sayd that though that the Lessee cannot have an Action of Covenant in the principall Case insomuch that this is so speciall yet the Bond shall be forfeited upon these Words grants and agreements and the Covenant special doth not qualify the generall express grant and after four Justices that is Flemming the cheife Justice Willams Yelverton and Crooke were of opinion that the Bond is forfeited and this for the generalty of the
Grant his Intent was cleerly to pass all but Williams if he had sayd Totum Molendinum suum or all his Estate in the Mill there paradventure it should haue been otherwise and so a difference where he saith he grants the Mill and all his Estate in that and where he grants all his Estate in the Mill for in the first case all passes by the Grant of the Mill and these words which are after are but words explanatory as â—rooke sayd and it was adjourned And after in Easter Tearm next insuing Hitcham the Queens Attorney came again and prayed that the Judgment be affirmed and Yelverton of Grayes Inne sayd that he hath considered of Nokes Case 4. Coke and this was all one with this case for the case was thus A man lets a House in London by these words demise Grant c. That the Lessee should injoy the House during the Tearm without eviction by the Lessor or any claiming from or under him and the Lessor was bound to peform all Covenants Grants Articles and Agreements as our case is and there by the whole Court that the sayd express Covenant qualifies the generalty of the Covenants by the Words Demise and Grant which is all one with our case for first he granted Totum Molendinum and after covenant that he should injoy c. against himself and all which claime in by from or under him and after binds himself to perform all Grants Covenants Articles and Agreements and so it seems to him that it is au expresse Covenant in this Case as well as in other and qualifies the generall Covenant implyed by the word Grant and then the Grantee being outed by a title Paramount no Action of Debt upon such Obligation and prayed that the Judgment be reversed and the Justices sayd they would consider Nokes Case and the next day their opinions were prayed again and the cheife Justice sayd that he had seen Nokes case and said that there is but a small difference between the cases but he sayd that some diflemay be collected For first in our case is a Recitall of the Estate of the Grantor that is that all belongs to him as Survivor and for that this was a manner of Inducement of the Grantee to be more willing and forward to accept of the Grant and to give the more greater consideration for it but in Nokes case there is no recitall and so this may be the diversity Secondly In Nokes Case the Tearm past all in Interest at the first and the Grantee or Lessee had once the effect of this Lease in Interest of the Lessor but in this case when two Tenants in Common and one grants Totum molendinum there passes but a half at the first and so the grant is not supplyed for the other halfe and then if the speciall Covenant shall qualify the generall c. The Grantee shall not have any remedy for a half at all and this may be the other diversity but admitting that none of these will make any difference then he sayd that all the Court agreed that this point in Nokes Case was not adjudged but this was a matter spoken collaterally in the case and the case was adjudged against the Plaintiff for other reasons for that that he did not shew that he which evicted this Tearm had title Paramount for otherwise the Covenant in Law was not broken and for this reason Judgment was given against the Plaintiff and not upon the other matter and so the whole Court against Nokes Case And the cheif Justice sayd that to that which is sayd in Nokes case that otherwise the speciall Covenant shall be of no effect if it cannot qualify the generalty of the Covenant in Law he sayd that this serves well to this purpose that is that if the Lessor dyes and any under the Testator claim the Estate that the Action of Covenant in this case lies against his Executors which remedy otherwise he cannot have for if a man makes a Lease by these words Devise and Grant and dyes Action of Covenant doth notly against his Executors as it is sayd in the 9. Eliz. Dyer 257. But otherwise upon expresse Covenant and then this expresse speciall Covenant shall be to this purpose And also it seems to him that if a man devise and grant his Land for years and there are other Covenants in the Deed that in this case if the Lessor binds himself to perform all Covenants that he is not bound by his Bond to perform Covenants in Law and he cited that to this purpose the Books of 22 H. 6. and 6 Ed. 6. B. Tender that if a man makes a Lease for yeares rendring Rent this is Covenant in Law as it is sayd 15 H. 8. Dyer and a man shall have Debt or Covenant for that and yet if a man binds himself in a Bond to perform all Covenants where there are other Covenants in the Deed and after doth not pay the Rent no action of Debt lyeth upon this Obligation nor the nature of the Debt altered by that and he sayd that the Munday next they would pronounce Judgment in the Writ of Errour accordingly if nothing shall be sayd to the contrary and nothing was sayd Hillary 7. Jacobi 1609. In the Kings Bench. Bartons Case THE Case was this A man was taxed by the Parish for Reparations of the Church and the Wardens of the Church sued for this Taxation in the spirituall Court and hanging this Suit one of the Wardens released to the Defendant all Actions Suits and Demands and the other sued forward and upon this the Defendant there procured a Prohibition upon which matter shewed in the Prohibition was a Demurre joyned and Davenport of Grayes Inne moved the Court for a Consultation and upon all the matter as he sayd the point was but this If two Wardens of a Church are and they sue in the Court Christian for Taxation and one Release if that shal barr his Companion or not And it seems to him that this Release shall not be any Barr to his Companion or Impediment to sue for he sayd that the Wardens of a Church are not parties interested in Goods of the Church but are a speciall Corporation to the Benefit of the Church and for that he cited the Case in 8 Ed. 4. 6. The Wardens of the Church brought Trespass for goods of the Church taken out of their possession and they counted Ad damnum Parochianorum and not to their proper damage and the 11 H. 4. 12. 12 H. 7. 27. 43 H. 7. 9. Where it is sayd expresly that the Wardens of the Church are a corporation only for the Benefit of the Church and not for the disadvantage of that but this Release sounds to disadvantage of the Church and for that seems to him no Barr also this Corporation consists of two persons and the Release of one is nothing worth for he was but one Corps and the moyity of the Corps could not release
taken to the title because he saith that he was seised and not saith that he is and yet good by this word Fuit for that shall be intended that he continues seised so he sayd that things which are necessarily to be intended though they be not so particularly expressed yet shall be good by Implication and so he concluded that this is no Error for which the Judgment shall be reversed And to the challenge he conceived that this is not any principall challenge and to that he put this difference that if a man brings an Assise of certain Land and hath an Action of Trespass hanging against the Sheriff for entring into the same Land there shall be a principall challenge to the Array but if it be for entry into other Land not in demand otherwise it is and what is principall challenge and what not he cyted the Bookes of 3 Ed. 4. 12. 6 Ed. 4. 1. 21 Ed. 4. 67. 14 H. 7. 1. 21. Ed. 4. 10. And to the point in question he cyted the Bookes before remembred by Crooke and Williams and no others and for that I omit to recite them and he agreed also that in actions which concern life Honesty Mayme Battery to say that he hath such action hanging against the Sheriff shall be a principall challenge but Trespass for entring into Land not for in Trespass there is no Land to be recovered also no damages but to the value of the Trespass And in Debt a man shall recover more then in Trespasse And yet it is agreed that this is no principall Challenge to say that he hath an Action of Debt hanging against the Sheriff as the Book of 11 H. 4. is which hath been remembred and for this I conceive it no principall challenge And to the seisin of the Paunages if a Horse may take seisin of that it seemes that yea for I conceive that the taking of seisin doth not consist in the eating or not eating of that of which the seisin is to be taken and for that he cited that if a man grant to me the Herbage and Paunage of his Parke and I come into the Parke and take the Grasse and Herbs into my hands or if I gather Akornes this is sufficient seisin for me to have Assise though that I do not eate the Grasse nor the Akornes and for that let us put the case that a man hath Herbage granted to him and he puts in his Beasts and before that they eate the grasse they are driven out none will deny but that that shall be good seisin for so is the Book of the 22. Assise 84. Where a man hath Common granted to him and he takes the Beasts of a stranger and puts them in and them forthwith drive out that shall be a good seisin of the Common to have Assise so that he said that the eating is not to purpose also he said Horses will eate Akornes as well as Cowes And he saith that in the Country where he inhabits being a Wood-land Country they will not suffer the Beasts to go into the Woods at a certaine time of the yeare and this is when Crabs are ripe for then their Beasts will eate Crabs and set their teethes an edge and then not being able to chew Akornes do swallow them whole and then those Ackornes being swallowed whole will grow in the Mawe of the Beast and so kill them And he saith that though that Horses be not so proper Beasts to take seisin of Paunage as Porkes are yet being put in for the same purpose if they are disturbed that shall be Seisin and Disseisin and it seemes to him that when things are granted to one that it shall not be strange to say that seisin of one shall be seisin of both and for that if a man grants all his arrable Land all his Meadow and all his Wood Livery and Seisin in one suffices for all but I conceive that this is in respect of the soyle which passeth and so are all of one self same nature and so he conceives that this is sufficient Seisin and Disseisin found to have Assise And lastly to the Title of the Earle of Rutland he said that this was good and to the Grants of the King he said two things are necessary in all Grants of the King that is a Recitall and a certainty and when a recitall shall be necessary and when not and he said that in all cases when a common person makes a Lease for years or for life and the reversion is conveied to the King if the King will make Estate to another he shall not recite this Lease for this not being of Record the King cannot take notice of it and so he shall not recite But in all cases when the King makes a Lease for life or for years and after will make a Grant to another he ought to recite the first Estate because that is of Record And Justice Yelverton as I heard of those which were next unto him put this case That if the King grants a Lease for yeares rendring Rent and after the King reciting the Lease grants that to another for years or grants the reversion to another and doth not recite the Rent which was reserved upon the first Lease that this second Grant shall be void for the not recitall And the cheife Justice cited one Phillpotts Case to be adjudged in the 2. of Eliz. That where the King made a Lease for one and twenty yeares and after reciting the said Lease grants the reversion to another and before that the second Letters Patents were sealed the first Lessee surrendred And said that the second Grant was adjudged void for the King intended to passe a reversion and now he shall have a Possession and all that which is said to be in case of Land Now let us see how it shall be in case of office and for that if a common person hath â—n office in Fee and grants that for life and after grants the Fee simple to the King and the King will grant that to another there he ought to recite the common persons Grant as well as if it had been his one Grant for there is not properly a reversion of an office as the Book cited by my Brother Williams sayd Secondly if the office be recited in Esse and be not in Esse the Grant is void as Blanyes Case is in the Lord Dyer 3 Eliz. 197. 47. And this sufficeth for recitalls Then for certainty of the Kings Grant it is said in the 2. R. 3. it is said that the Grants of the King ought to be made in certaine and for that where the King there Grants to Sir John Spencer that he shall not be Sheriff this was void for the incertainty of the place But if the Grant had been of such a County or such a County the Grant should be good Also there ought to be certainty of Estates as it is in 18. H. 8. Where the King gives Lands to
one and his Heires Males this is void for uncertainty of the Estate then it is so averred in our case if there be not sufficient recitall and certainty and to the recitall that is good without question for she recites that she hath granted that to Markham for ifâ— and Markham is yet alive and so the recitall good Then for the certainty he said that the rule is that if the certainty be declared by expresse words or if the King may reduce that to a certainty the Grant of the King shall not be defeated and for that he cited the case of Information of Mines Comment But if the King grant to me all Mines in the Land of J. S. There I shall have all Mines Royall for the Law saith the King cannot have other Mynes in the Soil of a Subject but Mines Royall and so there the Law supplies the Grant so that they be Mines Royall though not expressed in the Grant in certaine so he said in the principall case that the Queen hath expresly recited that she hath granted the Herbage and Paunage for life to Markham and that Markham was yet alive and after grants that to the Earle of Rutland and doth not say when that shall begin the Law saith that shall begin after the death of Markham for before that it cannot begin But if the Queen had exprest in the Letters Patents that this shall begin forthwith then this had been void as the Lord Gaudy said in Altonwoods Case 1 Coke fol. 51. And so he concluded the Title of the Earle of Rutland good So he affirmed the Judgement in all But Williams was very peremtory for the conceit of Paunage that it was not good Seisin But after Crooke Justice recanted his opinion of that and insomuch that there were three which concluded for the reversing of the Judgement And yet for every point there were three against two It was doubted if this Judgement should be reversed or not And they said that they would advise with the rest of the Judges and after that it was moved againe by Serjeant Nicholls in the next Trinity Tearme and Yelverton and the cheife Justices would have the Judgement affirmed but Williams Fenner and Crooke to be reversed and note well this President where Judgement was reversed and yet for every point there were three Contra two or foure Contra one see the first Judgement in the Common Bench Michaelmasse 6. Jacobi afterwards Termino Pasche 7. Jacobi 1609. In the Kings Bench. Trinity Colledge Case THE Case was this King Henry the eight Incorporated the Schollers of Trinity Colledge in Cambridge by the name of Masters Fellowes and Schollers Collegij Sanctae et Individuae Trinitatis in the Town and University of Cambridge and in the 6. Ed. 6. They made a Lease by the name of Master and Fellowes of Trinity Colledge in Cambridge leaving out the University And if this Lease were good or not was the question And Yelverton argued that this was not a good Lease and that for the misnaming of the Corporation And to that he said to every Corporation two things were incident That is name and place and if any of those fayl and be not certainly recited in a Lease the Lease shall not be good And he conceived that this Corporation is founded upon two places and that one of them That is the University is left out and for that cause the Lease is nothing worth for if a Corporation hath two names one of them cannot be omitted as it is in the first of Mary Dyer 96 97. and 4. Mary 140. and 150. 11. Eliz. Dyer 278. 35. H. 6. 5. and 6. No more then when it consists of two places one of them may be left out And for that if they had been incorporated by the name of Master and Fellowes of Trinity Colledge in Norfolke and Suffolke in a Lease they could not leave out Norfolke or Suffolke but both the places ought to be incerted And by him in the principall case if the Lease had been made by the name of the Master and Fellowes of Trinity Colledge in the Town and leave out the University of Cambridge without question this shall be void so here this being impliedly omitted shall be as strong as if it had been by expresse words excluded so in the making of every Corporation the intent of the Founder is to be considered and for that it seemes the intent of the King in placing that in both places was first to erect a Colledge and that to grace the Town and then he hath placed them in the University and this was for the instruction in good Arts and Learning and so for these benefits they have of both these places nor one nor the other may be left out And if the King had been incorporated by the name of Master and Fellowes of Trinity Colledge in Cambridge and in the Market place of Cambridge There though that the Market place was parcell of the Town of Cambridge yet it seemes to him that this cannot be left out for peradventure the Founder hath a speciall reason to place that there that is to have all things necessary for them more neer unto them Also where any stranger demands any possession of them in Precipe Quod Reddat or such like he ought to ensue them certainly and precisely Then a Fortiore where they depart with their possessions by their own Act there they shall not be unknowing of their one names And Walter of the inner Temple argued to the contrary and he conceived that the Lease is good and first he argued the ground which hath been taken of the other part that is that every corporation ought to be in a certain place and he conceived that there is a certaine place in this place that is the Town of Cambridge And to that that is said that this Corporation is founded upon two places he denied that all together for no more then one materiall Body may be but in one place Simul and Semel no more may it be in a Body Corporate which hath allwaies his resemblance to a Body naturall and for that he denied the case which hath been put of the other part of Norfolk and Suffolk And he cyted the opinion of the Lord Popham in Buttons Case in which the Lord North was Interested that a Corporation cannot be limited to a County as Probos Homines of such a County or Trinity Colledge in such a County but it ought to be restrained to some certaine place or one County or a Town But admit that the Corporation may be founded upon two places yet he faith that a University is not Locall but Personall And to this purpose he cyted two Records one in 48 H. 3. Which was this King H. 3. Intending to keep a Parliament at Oxford and knowing that the place was not sufficient to contain all those which should be there assembled and the Schollers together sent his Writ which was directed to the
175 b. Dyer and there in Margery Hynds case who 18 Eliz. Noluit jurdre coram Justiciarijs Ecclesiasticis super articulos pro usura and Leyes case 9. and 10. Eliz. Michaelmas Rot. 1596. and it is written in the Book of the Lord Dyer but not printed the case was Ley being an Attorney of the Common Bench was committed to the Fleet by the Bishop of London and two others of the high Commissioners Ecclesiasticall for that that he was present at a Masse and he refused to be examined upon his oath upon Articles administred by the high Commissioners see also 5 Edw. 4. Keysers case upon the statute of 2. H. 4. chapt Which gives authority to the Arch-Bishop to imprison c. And see the Register fol. 36. b. The form of an Attachment against the Bishop which cited Aliquos Laicos ad aliquas cognitiones faciendas vel sacramentum prestandos nisi in casibus matrionalibus Testimeutarijs c. But it was urged that the Judges of the Common Law shall not have the exposition of the statute of 1. Eliz. because it was an Ecclesiasticall Law but it was resolved by all the Justices that it belongeth to the Judges of the Common Law to expound this for the Statute was temporall meerly and with this 4. Ed. 4. 37. b. c. upon the Statute of 5 H. 5. chapt Which provides Quod libellus sit deliberatus parti in casu ubi per legem deliberandus est hoc sine difficultate And though that this Act be meer spirituall yet the Exposition of that lyes open to the common Law Michaelmas 7. Jacobi 1609. In the Common Tench Estcourt and Harrington IN Trespass upon the Case between George Estcourt Plaintiff and Sir James Harrington Knight Defendant for that that the Defendant sayd that the Plaintiff was a forsworn and perjured man which the Defendant justified for that that the Plaintiff exhibited and English Bill in the Marches of Wales before the President and Councell there and in the same suit made an Affidavit upon which an Injunction was granted for the possession of Land in question between them for the sayd Plaintiff and that the sayd Affidavit was false and the Plaintiff hath committed perjury in that and this was allowed good Justification the Jury was of the Counties of Glocester and Salop and the words of the Distringas were ordinary till towards the end and that was Ad faciendam quendam Juratum simul cum alijs Juratoribus comitatus nostri Salop and this was the Distringas directed to the Sheriff of Glocester and so Mutatis mutandis in the Distringas directed to the Sheriff of Salop and note that the Jurors were sworn one of one County and another of another County Alternis vicibus and 24. were returned of every County Michaelmas 7. Jacobi 1609. In the Common Bench. Simpson and Waters SYmpson against Waters in an Action of Trespasse upon the case for Slander that is thou art drunk and I never held up my hand at the Barr as thou hast done and agreed that an Action doth not lye for these Words for peradventure he intended buttery Barr And by Foster Justice if he had sayd for Felony that the Action doth not lye for many honest men are arrained but if he saith he was detected Action doth not lye but if he saith he was convicted for Perjury Action lyeth as seemed to him In Trespass the Originall bore Teste 3. Ianuary 6. Iacobi and in the Count the Trespass is supposed 20 Ianuary 6. Iacobi which is after the Teste of the Originall and agreed that this shall not be aided by the Statute oâ— Jeofailes but if it were originall otherwise it is Michaelmas 7. Jacobi 1609. In the Common Bench Hare and Savill IN Covenant by John Hare and Hugh Hare against John Savill the Plaintiffs made a Lease for years to the Defendant rendring Rent at two Feasts or within ten dayes after every of those at the Temple Church and the Defendant covenanted to pay the Rent according to the reservation and for the non payment these Plaintiffs brought an Action of Covenant to which the Defendant pleads levied by distress and upon this the Plaintiffs demurred and adjudged with the Plaintiffs accordingly for that the Defendant for his Plea hath confessed that it was not payd according to the reservation for the Plaintiffs cannot distrain if it were not behind after the day and it was agreed that where a Rent is reserved to be payd at such a Feast or within twenty dayes that the Lessee in this case shall have Election if he will pay that at the Feast or at the end of twenty dayes for he is the first Actor and the Lessor cannot distrain nor have action of Debt till the twenty dayes be past and it was agreed that the Covenant shall not alter the nature of the Rent but that nothing behind or payment at the day were good Pleas. Defendant in Debt pleads to the Law and was ready at the Barr to wage his Law and it was resolved by the Judges upon conference with the Prothonotories that it might be continued but the Court would advise IN Action upon the Case upon Assumpsit the Plaintiff counts that diverse Goods were delivered to him in pawn and that in consideration that he should deliver them to the Defendant the Defendant assumed and promised to pay to him the Debt for which the Goods were pawned and it was objected that the Count was not good for that it doth not contain the certainty of the Goods which were pawned and delivered to the Defendant but to that this difference was agreed that when Goods are to be recovered and Dammages for them and are in demand the certainty of the goods ought to appeare in particuler as if a man pleades that he was never Executor nor administred as Executor it is a good Plea for the Plaintiff that he administred Diversa bona in such a place so if he plead that he hath Diversa bona natabilia in other Diocesse it is good iâ— both cases without shewing what goods in certaine see 11. H. 7. 29. Ed 3. Also it was objected that the consideration was not sufficient and then it shall be Nudum pactum ex quo non oritur actio for the Plaintiff hath not any Interest in the Goods and they were delivered him to keep and not to deliver over so that the delivery was vitious and for that it shall be no good consideration and of this opinion was Foster Justice But Coke Wraburton Danyell and Walmesley being absent it seemes that the condition was good as if a man in consideration that another will go to Westminster or cure such a poor man or mary a poore Virgin assume to pay to him a sum of money And though this consideration were not valuable yet it seemes good And he that pawned hath a property in the goods and may have them againe In debt
twenty yeares if the Husband and wife and the Issue male of their Bodies so long live and it was there adjudged that the Lease doth not determine during the lives of any of them for in this disjunctive it is referred to an Intiâ—e Sentence and is as much as if he had sayd if the Husband or the Wife or the Issue of their Bodies so long live Hillary 7. Jacobi 1609. In the Common Bench. Borough of Yarmouth THE King John by his Letters Patents granted that the Burrough of Yarmouth should be incorporated and the grant is made Burgensibus without naming of their Successors and also he granted Burgensibus teneri placita coram balivis and in pleading it was not averred that there were Bailiffs there and it was objected that the Burrough cannot be incorporated but men which inhabite in that but to that it was resolved that the Grant is good and the Lord Coke sayd that he had seen many old Grants to the Citizens of such a Town and Good and so that the Grant Burgensibus that the Bâ—rrough should be incorporated being an old Grant should have favorable construction but the doubt was for that that it was not averred that there were Bailiffs of Yarmouth and if a Grant to hold Pleas and doth not say before whom the Grant is voyd according to 44 Ed. 3. 2 H. 7. 21 Ed. 4. and for that it was adjourned But the opinion of all the Court was that the Grant made Burgensibus was good without naming of their Successors as in the case of Grant civibus without more Note that Executors or Administrators shall not finde speciall Bail for the Debt of the Testator though that the debt be for a great sum as three thousand pound or more for it is not their Debt nor his Body shall not be lyable to execution for that 43 Ed. 3. Suit was commenced hanging another Writ it is a good Plea though that the Writ was returnable in the Common Bench and the last Suit was begun in a Base Court but if so be and doth not appeare to this Court that the Plaintiff begun suit in a base Court for the same Debt for which the Suit is here begun Attachment shall be awarded see 2 H. 6. 9 H. 6. but this ought to appear to the Court by Affidavit c. Hillary 7 Jacobi 1609. In the Common Bench. Chapman against Pendleton IN second deliverance the case was this A man seised of a house and fifty Acres of Land held by Rent fealty and Harriot service enfeoffs the Lord of three Acres parcell of the Land and after infeoffs the plaintiff in this Action of three other Acres and upon this rhe sole question was if by this Feoffment to the Lord of parcell Harriot service is extinct or not Harris Serjeant conceived that the Harriot remaines for he sayd that it is reserved to the Reversion of the Tenure but it is not as anuall Service but casuall and it is not like to rectify for that it is incident to every service And by 43 Ed. 3. 3 It is no part of the service but Improvement of the service And Bracton in his Tractate De Relevijs 2 Booke 2 7. saith that Est alia prestatio vocata Harriot c. Que magis fit de gratia quam ex Jure and it is not like to a releife see the Booke at large and he agreed that if the Tenant had made fifty severall Feoffments to fifty severall men that every of them shall pay a severall Harriot as it appears by Bruertons Case 6 Coke 1. a 34. Ed. 3. Harriot 1. 2 Ed. 2 Avowry 184. 〈◊〉 Ed. 2. Ibidim 206. 11 Ed. 3. Avowry 101. 24 Ed 3. 73. a 34 Assise 15. 22. Ed. 4. 36. 37. 29 H. 8. Tenures 64. But he grounded his Argument principally upon Littleton 122. 223. Where it is sayd that the reason why Homage and Fealty remaine if the Lord purchase part of the Tenancy is for that that they are of annuall Services and it seemed to him that Littleton is grounded upon 7 Ed. 4. 15. Extinguishment 2. 8 Ed 3. 64. 24. Ed 3 B. Apportionment last case which accords the reason and upon this he concluded that for that that the Harriot is not annuall it shall not be extinct by the Feoffment but remaines but he agreed if a man makes a Lease for years rendring Rent and parcell of the Land comes to the Lord the Rent shall be apportioned if it be by Lawfull means as it appears by 6 R. 2. F. Quid Juris clamat 17. Plesingtons Case and 24 H. 8. Dyer 4. 1. Rushdens case by which c. Nicholls Serjeant that it hath been agreed that it is intire service and that then he concluded upon that that it shall be of the nature of other intire services as it apperrs by 2 Ed. 2. Avowry 184. and 34 Ed. 3 F. Harriot 1. 5. Ed. 2. Avowry 206. And he agreed that in the case of Littleton the Homage and Fealty remain and the escuage shall be apportioned but this is not for the reason alledged in Littleton that is for that that they are not annuall services but for that that the Homage is incident to every Knights service and as the Lord Coke sayd fealty is incident to every service in generall and the Tenant shall make Oath to be faithfull and loyall to his Lord for all the Tenements which he holds of him and the reason for which the Escuage shall be apportioned is for that that it is but as a penalty which is inflicted upon the Tenant for that that he did not make his services as it appears by the pleading of it and shall be apportioned according to the Assesment by Parliament and by 22 Ed 4. It appears that this purchase by the Lord is as a release and if the Lord release his services in part this extincts the services in all and he sayd there is no difference where an intire service is to be payd every third or fourth year and where it is to be payd every year as to that purpose and yet in one case it is annuall and in the other it is casuall and yet in both cases if the Lord purchase parcell of the Land of the Tenant all the intire services shall be extinct and gone though that they are to be performed every third or fourth year by which c. Foster Justice that the Harriot is entire service and for that though that it be not annuall it shall be extinct by purchase of parcell of the Tenancy by the Lord as if a man makes a Feoffment with warranty and takes back an Estate of part the warranty is extinct as it appears by the 29. of Assise so if a man hold his Land by the service to repaire parcell of the fence of a Park of the Lords and the Lord purchase parcell of the Tenancy the Tenure is extinct as it appears by 15 Ed. 3. And it is
agreed in the 21 H. 7 In Kellawaies Reports by Frowick that there is no difference between Harriot and Releife and Releife shall be extinct and so he concluded that the Harriot is extinct Danyell Justice accordingly and he said that this purchase shall be as strong as release And if the Lord hath released the service intire for part it shall be extinct for all and if Tenant holds by Suite to the court of the Lord and the Lord purchase parcell of the Tenancy the Suit is extinct as it appeares by 27. H. 7. and Fitz. Na. Bre. And so concluded that the Harriot service is extinct by the purchase aforesayd Warburton accordingly And saith that in Littletons Case the Homage and Fealty shall remain for they are personall services and for that shall remaine intire and of Rent shall be an apportionment by the Statute of Westminster 3. De quia emptores terrarum But for other intire services by the purchase of the Lord be they annuall or casuall and they are extinct and 21 Edward 4 was a Suite for a Hawke which was kept back twenty yeares and so for Suit if the Tenants make a feoffment to diverse they shall make but one Suit but they all shall make contribution to the Suit but if the Lord purchase parcell he cannot make contribution And though that the Homage and Fealty are personall services the Horse and Hawke are of the nature of land so the Harriot is of his goods and if the Tenant hath no goods the Lord shall loose it and for that he concluded as above Walmesley accordingly And he said if a Tenant hold by intire services of two Lords and one purchase parcell of the Tenancy all the intire services shall not be extinct but the other Lord which did not purchase shall have them for Res inter alios acta nemini nocere debeat To which Coke cheife Justice agreed and he said if Harriot custome be due peradventure it shall not be extinct by purchase of parcell of the Tenancy for that is personall and it is not Issuing out of land but for intire services which are Issuing out of land he said there is no difference betwixt annuall services and casuall services which are intire and so he concluded as above Coke cheife Justice accordingly and he said there is no difference between annuall intire services and casuall so that they are services to be paid at the death or alteration of every Tenant or otherwise but he said there is no doubt but that Rent service shall be apportioned though that the Lord purchase parcell be that in the Kings case or of a common person and this by the common Law without the aid of any Statute for there is not any Statute that shall aid that if it be not remedied by the Common Law and he said that some Intire services may multiply as if a man holds by payment of a payre of gilt Spurrs or of a Hawke or a Horse or others such like and makes a feoffment of parcell the Feoffee shall hold by the same intire services But if the Tenant hold by personall services as to cover the Table of his Lord or to be his Carver or Sewer at such a Feast or such like these personall services cannot multiply if the Tenant makes a feoffment of part for by this the Lord may be prejudiced for peradventure at his house he will not include them but he may distrain every of them to make the service And he saith the reason for which Knights service shall be apportioned is for that it is for the publick good and for the good of the Common Wealth But so are not the other personall services and in the principall case he conceives that if the Tenant had made a feoffment first to a stranger and after the stranger had infeoffed the Lord that by that all the intire service shall not be extinct for by the feoffment of the estranger was severence of the services and he holds by a Harriot as well as his Feoffor and for that nothing shall be extinct but the Harriot due by that parcell of which the estranger was infeoffed and he agreed with Walmesley that a Harriot custome shall not be extinct where the custome is that every Tenant shall pay a Harriot for there it is paid in respect that he is Tenant and custome shall not be drowned by unity of Tenancy and Signiory And for that he concluded that the Harriot for that that it was intire service though that it were casuall and not annuall that yet it shall be extinct and Judgement was given accordingly Hillary 7. Jacobi 1609. In the Common Bench. Michelborne against Michelborne UPON a motion made for consultation upon Prohibition awarded It was said by the Lord Coke that no Subject of the King may trade with any Realme of Infidells without licence of the King and the reason of that is that he may resinquish the Catholick faith and adhere to Infidelisme and he said that he hath seen a licence made in the time of Ed. 3. where the King recited that he having speciall trust and confidence that his Subject will not decline from his Faith and Religion licenced him ut supra And this did rise upon the recitall of a licence made to a Merchant to trade into the East Indies Hillary 7. Jacobi 1609. In the Common Bench. Reade against Fisher IN debt the Defendant exhibits his suit in the Court of Requests and there the Plaintiff in that Court denied that the debt was paid and the Court of Request awarded an Injunction and upon Information of that this Court awarded a Prohibition to inhibit the Suit there Hillary 7. Jacobi 1609. In the Common Bench. Mors against Webbe IN Replevin the case was this A man was seised of two Virgates of Land and prescribed that he and his Ancestors and all those whose Estates he hath in the said Virgates of Land have used to have common in the feilds c. That is when the feilds are fallow all the yeare and when they are sown with Corn or otherwise severall when the Crop is mowed and removed for two Horses four other Beastes and a hundred and twenty Sheep as appertaining to the said two Virgates of Land The Defendant traverseth the prescription and upon this they are at Issue and the Jury found that there is such prescription But further they say that the Plaintiff made a Lease of six Acres parcell of the said two Virgates of Land in one of the feilds of c. with the Common of that thereunto belonging for the Tearme of ten years and the Beastes for which the Replevin was brought were in another feild of c. And if the prescription be suspended or remaines they praied the advise of the Court and it was agreed that common appendant and appurtenant was all one to the severance for if such a Commoner grant parcell of that Land to which the Common
part this shall not extend to other persons Commoners and it is like to the case in 9 Eliz. Dyer 257. 13. A man makes a Lease for years and covenants that the Lessee shal injoy the Tearm without eviction of the Lessor or any claiming under him if he be evicted by a stranger this shal be no breaking of the Covenant for a stranger is no party to the Deed nor claims under the Lessor and for this his Entry shal not give Action to the Lessee and so is the Case in 21 H. 7. between the Prior of Castleton and the Dean of Saint Stephens which was adjudged the 18 of H. 7. Pasch Rot. 416. Though that no Judgment be reported where it appears that the King Ed. 3. seised al the Lands of Priors aliens in time of War for that that they carried the Treasure of the King out of the Realme to the Kings Enemies and so it was made by H. 4. also during the time of his Reign and then in the second year of the Reign of King H. 5. by a statute made between the King and the sayd Priors aliens al the Possessions of the sayd Priors were resumed into the hands of the sayd King and adjudged in 21. H. 7. 1. before that this shal not extend to the Prior of Castleton which had Annuities issuing out of the Possessions of the sayd Priors for the said Prior of Castleton was not party to the sayd act of Parliament and for that he shal not be prejudiced by that and so it was adjudged 25. and 26. Eliz. In the Court of VVards in the case of one Boswell where the King made a Lease for years which was voydable and after by another Patent granted the Inheritance and then came the statute of 18. Eliz. to confirm al Patents made by the sayd Queen within her time and adjudged that the sayd Act shal not make the sayd patent voyd to the Patentee which is a stranger to the act of the Parliament but only against the Queen her Heirs and successors for by the statute it is made only against one person only and shal not be good against another though there be no saving of such person in the sayd Act. And also he conceived that the statute of 22 Ed. 4. Doth not extend to any woods in forrest in which another hath Common for it doth not extend only to such woods which a common person hath in the Kings forrest or common person and that it may be inclosed for the space of three years after the cutting of the wood in this before the making of the sayd statute and this was no wood in which an Estranger had Common as it appears by the Preamble of the sayd statute and then after in the sayd statute it is sayd such woods may be inclosed And also he conceived where the statute sayth that they may inclose the same Grounds with such sufficient hedges able to keep out all manner of Beasts and Cattell out of the same Grounds but this refers to the quality of the hedge for before it ought to be a small Ditch and by this statute it ought to be with such hedg which shall be able c. And it shall not be referred to the manner of the Cattell But for the difference between Beasts of Forrest Beasts of Chase and Beasts of Warrain see the Register fol. 96. 43 Ed. 3. 13. 12. H. 8. 12. b. Hollinsheads Cronicle fol. 20. b. 32. And he conceived that Sir Francis Barrington is such a Vendee of Wood that is within the statute though that he be Vendee of Inheritance and hath a greater Estate then Vnica vice but for that that he conceived that it was not within the statute for other reasons before cyted he would not dispute it But he conceived if this had been the question of the Case that this was within the statute and also he conceived that this was a generall statute of which the Judges shall take notice without pleading of this And this reason was for that that the King was party to it and this which concernes the King being the head concernes all the Body and Common Wealth and so it was adjudged in the Chancery in the case of Serjeant Heale that the statute by which the Prince is created Prince of VVales was a general statute and for that see the Lord Barkleyes case in the Commentaries Also he conceived that the said statute of 22 of Ed. 4. was repealed by 35. H. 8. for this was in the Negative that none shal cut any wood but only in such manner as is prescribed by the said statute and for that shal be a repeale of the first and that by the first Branch of the sayd statute it appeares that if such giving of Wood in his own Soyl within any forrest he cut to his own use he cannot inclose and by that Branch Commoner is not excluded but by the second Branch it is provided that he may inclose the fourth part of his Wood and cut that in such manner as is appointed by the said statute and then he shal loose his own Common in the three other parts and so he concluded that Judgment ought to be given for the Plaintiff which is the Commoner and Judgment was entred accordingly Pasch 1610. 8. Jacobi in the Common Bench. Cesar against Bull. THomas Cesar Plaintiff in Assise against Emanuel Bull for the Office of Clock-Keeper to the Prince this he claims by grant of the King during his own Life with the fee of two shillings a day for the exercising of it and three pound yearly for Livery and the patent purports only the Grant of the Office and not words of creation of the Office as Constituimus officium c. And the Plaintiff could prove that it was an ancient Office and for that was non-suited in the Assise though that the Tenant had made default before Pasch 1610. 8. Jacobi In the Common Bench. Heyden against Smith and others THE Plaintiff counts in Trespasse against these Defendants and these Defendants justifie as Servants to Sir John Leventhorp who was seised of a free-hold of Land in which the Tree for which the action was brought was cut and so demands Judgment if action the Plaintiff replyes that the place where c. was parcel of a house and twenty Acres of Land which time out of mind c. have been demised and demisable by Copy of Court Roll which was parcel of the Mannor of A. of which the sayd Sir John Leventhorp was seised in his Demesne as of see and by Copy at a Court held such a day and year granted the said Messuage and twenty acres of Land whereof c. To the Plaintiff and his Heirs according to the custome of the said Mannor and prescribes that within the sayd mannor was a Custome that every Copy-holder may cut the boughs of all the Pollingers and Husbands growing upon his Copy-hold for fire to be burnt upon his
a Writ this is disturbance and Action upon the case lies And so in Quare Impedit And also he sayd that the Earle cannot make a Deputy but by writing as it is resolved 28. H. 8. Br. deputy 17. Where it is sayd that Deputation of an Office which lyes in Grant ought to be made by Deed and not by Word But here the Jury have found that the Earle hath made his Deputy this shall be intended in lawfull manner and cannot be but by writing And also he agreed that the Habendum mentioned in the third Grant shall extend only to this Grant which is his proper Grant that the Office of the Habendum And it appeares by Wrotsleys and Adams case Comment 17. That the Office of Habendum is to make certain the Estate and not the thing granted for this is the Office of the Premisses of the Deed And if the Habendum in the third Grant had had reference to the second Grant this would make the Grant void And in Grants of the King other construction shall be made as it was adjudged in the Court of Wards Michaelmasse 28. and 29 Eliz. between Brunkar Plaintiff and Robotham Defendant where the case was the King Hen. the 8. had two Mannors whereof diverse Lands of one Mannor extended the other Mannor and then the King granted one Mannor and all his Lands in the same Mannor Nec non omnies singulas Terras c. In the same Town and adjudged that the Lands which were parcell of the other Mannor which was not granted passe by this Grant though that they are in the other Mannor in the same Town and he denyed that the words Precipientes volentes shall be taken as a Grant for they are not spoken to the Patentee but to other Officers which are strangers to the Grant But if the thing granted had been a Chattell that a Covenant might enure as a Grant and 10. Eliz. Dyer 270. 22. The King Phillip and Queen Mary granted for them and their Heires and Successors to A. B. That he and his Factors and Assignes might Tavern and keep a Tavern c. Commanding all Mayors and Sheriffs c. and other Officers and Subjects and their Heires and Successors to permit and suffer the said A. B. during his life to hold and use a Tavern and to sell Wine without Impeachment and it seemes that the Grant is void for that that there is not any time limited for how long it shall indure and the mandate in the last clause shall not make any limitation for by the death of the Prince this altogether ceaseth for Omne mandatum morte mandantis expirat And for that all Proclamations made in time of the Raign of Queen Eliz cease and determine by her death And to the person of the Earle he said that it was a Maxime that Honour and Order shall be observed and that was a common saying of the said Queen and for that it was not her intention that this Maxime should be broken and that the said Earle should exercise the said Office in person but she intended the said Earle should overlook the said Mannor and place here a sufficient able man to exercise the said Office because he should answer for the misdemeanour of such a Deputy is the forfeyture of the Office and he saith that the Dignity of an Earle was the most high Dignity in this Realm that any Subject doth possesse till the 11. Ed. 3 The black Prince was the 1 Duke and Aubry de Vere the 1 Marquess in the 11. R. 2. and Beamount the first vicount in the time of H. 6. And none of these Dignyties are above an Earle in degree but only in precedency for Bracton lib. 1. chap. 8. saith Quod Comites dicunter a socitate quia Comitantur Regem And in ancient time none were made Earles but only those which were of the blood Royall and this is the reason that they are called Consanguinij Regis and also they may be called Consules a Consulendo Tales enim Regis sibi associunt ad consulendum regendum populum Dei And at their creation the King gives to them a Robe and Cap which signifies Councell and Corronet which signifies the greatnesse of his Blood and Honour and also sword Vt sit in ntrumque tempus as well ready for War as peace And for that it should be unfit that one of such Honour State and Dignity should be imployed in holding of Court Barons and there sit to enter Plaints and have a peny for every Plaint for his paines and to make Copies and such like base imployments which are Vividae rationes which was not the intent of the Queen that he should exercise the said Office in person and the Law requires conveniences in all Grants as in 12. and 13. H. 8. One licensed a Duke to come and hunt in his park and the Duke came with his Servants and many others of his Retinue and hunted there and it was adjudged that the Grant was sufficient to warrant his hunting in this manner in respect of the conveniency for it is not fit and convenient that the Duke should go alone and 21. Ed. 3. 48. The Bishop of Carlile sued the Executors of his Predecessor the Ornaments of the Chappel of the sayd Bishoprick and then recovered and though that the sayd Chappel was in the private House of the sayd Bishop yet it was thought fitting that such Chappel should be adorned with convenient Ornaments and that these Ornaments should go in succession to the Successors and not to the Executors and if conveniency be so required in all these cases then by the like Reason such inconveniency shall not be admitted that the Earl should be Clark to Suitors as every Steward is And for that he conceived that the Grant is good And that the sayd Earl may exercise this Office by a Deputy as well as if a Common person grant an Office of Fostership to the King he may exercise that by any party or grant it over though therebe no words of deputation in the Grant and this in respect of the quality of his person and in many other cases an Earle or another Noble man shall be priviledged as in 3 H. 6. A Noble man shal not be examined upon his Oath in account And 48 Ed. 3. 30. He shal not be sworn upon Inquests which is to serve God and his Country Register 179. And if a common person be in debt to me a hundred pound I may have a Capias and arrest his person for this Debt but if the King create him Baron or Earl then his person is so privileged that that cannot be attached for this Debt and this is without wrong to me as it appears by the Countesse of Rutlands case 6. Coke And if a Baron be returned of a Jury and if Issue be taken if he be a Baron or not this shal be tryed by Record whether he be a Baron or not 35 H. 6. 46.
Condition repugnant voyd 138. Condition in rei in persona diff 139. Covenant where it lyeth 160 Covenant express and implyed or in Law how they differ 162. Copihold customes 197. Covenant P. Administrator 207. Covenant joynt surviveth ibidem 208. Church-Wardens not interessed in church Goods 210 Consultation awarded 216. Challenge for favour 229. Challenge to the Array for action against the Sheriff 230 Consultation awarded 26 Citation for defamation 28. Charter part beyond sea where to be sued 34. Citation out of the Deocess 34 Consultation granted 26. Clerk of a Parish who shall nominate him 38. Covenant destroyed 56. Common Recovery 75. Custome 76. Incertain voyd 85 Voyd for inconveniency 86 Copyhold what Authority 77 Its nature and reason 79 It is within the statutes which speaketh of Lands and Temements 79. 80 It s severall customes 86 87 Consuetudo sola quia non totaliter disallowed 86 Customes unreasonable voyd 87 Commission to the councell in Wales 119 Caveat to a Bishop 119 Coram non Judice where 127 Commoner cannot have an Action of Trespass 147 Chase in possibility not grantable 173 Cinque Ports the custome of taking the Body of a man in Withernam not good 195 196 197 Common of a Copy-holder destroyed by confirmation 211 Corrody granted 211 Common Law where voyd 38 Clam delinquens c. 288 Covenant express doth qualifie covenant in Law where 212 213 Covenant in Law not binding Executors where 214 Copihold custome 12 15 Custome ought to be reasonable 217. Custome in the Isle of Man 217 Custome of London 218 Custome of Hallifax 218 Copyhold custome for a married-wife a Devise to her Husband 218 Court Baron cannot inquire of Felonies 219 Condition entire not to be apportioned 227 Challenge principal what is what is not 240 Cestercians their Priviledge 20 Contra formam collationis to who given 22 Contract made in the straites of Malico 30 Custome for thithing 30 Cpoihold anciently villinage 44 Corporation cannot be limited to a county 244 Certificate of a Bishop 301 Charta de foresta 325 D DEfamation Sint ex officio 28 Debt Sur Judgement 39 Debt Sur Award 48 Sur Judgement 39 40 Damages in dower 41 Devise of lands how taken 74 That executors shall sell c. 100 Devastavit where 81 83 Damages uncertain therefore a fine certain for them voyd 86 Debt Sur bill P. memorand 97 Debt Pur fees P. attorney 99 Devise of lands in cap. and the stat of 32 and 34 H. 8 expounded 105 106 107 Deed without date 107 Dower 118 execution in it 141 Debt against an Administrator 118 Dower ass by the Sheriff without jurors good 141 Damnum five injuria 148 Debt against an administrator 153 Debt sur oblig pur Pf. cove 167 176 177 Debt 177 178 pur penalty of a by-law 179 Demurrer sur evidence 183 Ddvastavit 185 Debet detinet for Rent against an administrator 202 203 Damages found intire where it is error 272 Defendant entred after the habere fac poss executed 216 Dower recompence what 132 Delapidation suit for it 27 Dreprivation for drunkenesse 37 Debt P. executor 283 against executors 183 Demurrer in ejectione firme 128 Discontinuance 142 Dower of tyth wooll 143 Devise of a lease 172 Devise to a corporation 246 Debt against an administrator during minolity 248 Debt against executors 274 Duress where 276 Distress a quasi action 289 Devise enures to bargain and sale where 291 Devise of a Tearm 308 E Ejectione firme 40 Shall not abate if the Tearm end 131 Estrepment 401 68 Election by an Executor 51 Executor refuseth when too late 58 when good ibid Ejectione firme 74 102 103 Accord with satisfaction good 130 131 Elegit 97 sur testatum 208 Extent sur stat 122 Executrix during nonage 144 Ejectione firme 168 172 168 223 Election by an executor of a legacy 173 Executor de seu tort who 184 Executor de seu tort 184 185 Executors two joyntly sued one confesse the action good 286 Elegit sur testatum where it is necessary 207 Ejectione firme Judgement in it 216 Estoppell 219 Escheate 220 Election implicit 220 221 Error sur judgement in assise 230 Entry to abate an assise what what not 235 236 Ejectione firme and a good bar where 133 Executor sued and also the heire 67 Executrix during nonage 144 Expresse covenant qualifies covenantin law 212 213 Exposition of usage 222 Estate increasing sur condition when it ought to vest or not at all 251 Error in ve fa. and hab corp 274 Essoyn day is a day in term 279 Entire services casuall 293 295 Error in prolcamation 300 Error in writ of dower 300 Common of Estovers 329 F FOrm edon lieth for copy-hold lands intayted 43 44 Forgery by Scrivener who lost his eares for it 50 Franchise the lord shal answer for his baily 50 Feme covert what she may do sans Boron 71. how punishable 9495 Fealty seisin of ser au 99 Fine amended where 101 Feoffment to a son for valuable consideration 102 Forstaller regrator and ingrosser who 109 False imprisonment 124 Feme covert how she is bound by joyning with her husb 140 141 142 Fine where it binds 154 155 Fradulent conveyances within the stat 13 Eliz. 188 Fraude what by the statute 27 Eliz 190 Fyling a writ not materiall where 216 Formedon in remainder 274 Frank almoigne gift to the Templers 21 Formedon in discender 79 Fyne and ransome 113 False imprisonment action for it 255 Fyne error in it 270 Fyne by deb potest of an infant 271 Freedome of London how many ways obtained 286 287 Forfeiture of office of the Chirographer 300 G GRants how construed 193 Grant of common extinct 222 Grantee of a reversion of what conditions he may take advantage of by the common law of what by statute 32 H. 8. 228 Generall pardon 37 Gravi queâ—ela 72 Grant le roy when not good 252 Grant le roy incorporate a burough 292 Grant of a reversion 299 Grant del roy of alnage 301 302 303 304 Grant del portership 330 Grant Pro concilio impendendo 336 Grant P. Letters Patents 333 H HAb corp granted to a brâ—wnist counted 3 Heretick his censure 4 High commissioners their jurisdiction 4 5 14 15 16 18 19 Harriot unreasonable 89 Hab. fac poss the Shereffs officers poss the plaintiff refuseth 168 Harriot service 187 Habere fa. possessionem in ejectione firme 216 Hab. corpus and prohibition to the high commissioners 18 Hospitall of St. John of Hierusalem 21 Hab. corpus granted 36 Husband and wife where they shall joyn 66 67 Hab. corpus and prohibition 271 Harriot an entire service 294 ISsue imperfect 47 Justification for calling one perjured 49 Judgment in Debt 76 preferred before a statute c. 81 Innuendo shall not help the Action 84 Jus accrescendi where it holds not 99 Information sur le statute 5 Ed. 6. Chapt. 14 108 109 110 Jurors non concluded by Pleas of the parties 150 Information for
Nota. If I command one to do a Trespass an Action will lie against him Wife not bound to perform Covenants of the Lessee Nota. No Action for small Tithes Administration granted during minority not within the Statute 21 H. 8. Nota. Ordinary cannot make a Divident of themselves Legacy of Land shall not be sued for in Court Christian Nota. For Tithes Nota. Nota. Recitall shall not inlarge the Grant Nota. Money paid by an Executor upon a usurious Contract is a Devastavit Proportiament of Rent No Attornement necessary for Acts in Law Nota. For Tithes Nota. Note how far Proof extends Nota Difference Nota. Nota. Nota. Nota. Copy-hold land extendable upon Statute of Bankrupt Being a member of the Cinque Ports will not free one from Arrest Difference of things that are in Prender and that are in Render Nota. Omission in awarding the venire of these words Quoad triand c. held good Local things shall not be made transitory A Tales prayed by the Defendant upon the Plaintiffs Distring in another Terme but denied If Chamberlain of Chester make an ill Returne the Sheriff shall be amerced No Distress in a Court Baron but by Prescription Actions upon penal Statutes not within the Statute of Jeofailes Nota. Judges not meddle with matters of fact Nota. Information against three and two appear may declare against those two Nota. Return of a Sheriff insufficient upon a Statute Merchant for omitting that he had no other Lands c. Nota. A Statute first acknowledged shall be preferred before a Judgement afterwards retained The case of Villainage within the Statute of Limitation Nota in Elegit Two Inquisitions taken at several Dayes by several Juries upon one Writ naught Nota. All Goods and Chattels bound by the Teste of the Elegit and cannot be sold afterwards Audita Quaerela and Bail put in in the Chancery and held good The Act of E. 6. for Dissolution reaches onely to such that are regular Nota. Nota. Nota. Nota. Deed of Gift for things in Action Supersedeas granted because Capias ad satisfaciendum was not returned Nota. Nota. A Juror who hath appeared cannot be passed by and to swear others Goods cannot be sold upon a Levari facias in a Court Baron without a Custome Sheriff returned but 21. upon a Venire facias and naught Nota. Judgement that it was a good Devise The property is not altered upon the Sheriffs taking of goods upon a Fieri facias but remains in the Defendant Nota. Alien born no Plea in a Writ of Error Nota. Issue cannot be bastarded after Death Nota. Where the principal is omitted cannot be supplied by Writ Nota. King could not grant precedency in publique things Nota. Ancient Demesne tried by Doomesday Book The Venire facias was Album Breve and denied to be amended Lessee at will cannot grant over his Estate Note difference between Tenant at will and sufferance Nota. One committed bailed being no cause expressed Attorneys name put out of the Roll for a mis-demeanour Nota. Nota. Nota. Writ of Entry filed after the Death of the Tenant Ordinary to place and displace in the Church Fraud shall never be intended except apparent and found Nota. High Commission nothing to do with matters of instance for Tithes Nota. Nota Master shall not be corporally punished for his Deputies Offence Nota. Nota. Nota. One at seventeen years old may be an Executor No new notice needs if the Attorney be living If no place of Payment be in a Will must be a Request Nota. Warrant of Attorney filed upon a motion after Writ of Error brought and Error assigned Nota. Warrant of Attorney filed after Writ of Error by Order of Court Attornement of an Infant is good An Attorney ought to have no Priviledge as on Attorney Husband shall pay for his Wives Clothes though bought without his privity A mans Wife or Infant cannot be examined One Bond cannot overthrow the other Exceptions to an Award pretending the Arbitrators had exceeded their Authority but adjudged good Judgement for the Defendant for insufficiency in the Count. Judgement ' for the Defendant upon a by-law The Defendant at his perill ought to make Payment If part of a Condition be to be performed within the Realm and part without ought to be triable here Defendant pleaded six Judgements in Barr and two found to be by fraud and Judgement for the Plaintiff The Sheriff cannot break open the outward Door to do Execution but that being open he may break open any other Exception taken to the Defendants Plea Nota. Debt lies for Money levied by the Sheriff upon a Levari Nota. Nota. Exception taken because the Venire facias was of the Town and not of the Parish but ruled good Creditor administred and is sued ought to plead fully administred generally Debt brought for 60. l. tr be paid at the Return of a Ship from New-found-land to Dartmouth onely 50. l. lent is not Usury Plea made good by Verdict Nota. Judgement against both of the Testators Goods and Damages of him that appeared onely Nota. Nota. If no time of Payment in an Award due upon Demand Though two appear by one Supersedeas yet they may vary in Plea The Imparlance amended after Triall upon the Attorneys Oath Nota. Bene case A Servant hired to serve beyond Sea may have his Action in England Nota. Nota. Outlary in the Executor no Pled Outlary in the Testator in Barr adiudged naught A wrong man of the same name offers to wage his Law Lessor and Lessee for years one Assignes his terme and the other grants his Reversion Grantee of the Reversion shall have Action of Debt against the Assignee Nota. Nota. Default of the Clerk amended and afterwards upon advice made as it was at first A Bill to pay Money upon Demand must lay a special Demand Amendment of Issue Roll by the Imparlance Roll. Estoppell Repleader awarded Money due upon a Mortgage payable to the Heir and not to the Executor Money to be paid fifteen Dayes after return c. he proving his being there Court divided which proof shall be precedent or subsequent Condition that an Vnder-Sheriff shall not intermeddle with Executions of such a value held void Judgement arrested because the whole matter laid was found and part was not actionable Bail discharged upon the principals rendring his Body in another Terme after a case returned Quaere An Award good in part and naught for part and Breach assigned in the good part and held good If the Plaintiff be non-suit yet no Cost upon the Statute of Perjury Nota. Amendment of the Imparlance demed after Error brought A thing out of the Submission awarded and void Nota. Defendant wage his Law upon a Recovery in a Court Baron A man cannot send his Apprentice beyond Sea except he go with him Vpon a nul tiel Record though some Variances yet the Debt and Damages agreeing Judgement for the Plaintiff Bond taken to appear in the Court of Request void Return of the Habeas
a Book that ought not be given in evidence the Court above cannot remedie it except it be returned with the Postea A release to Tenant at sufferance void Commoner cannot chase the Lords Cattell if the surcharge be Common The Statute of 13 Eliz. for non-residence a generall law Where Husband and Wife shall be joyned and where severed in Action The Venire facias vicious no damages in Partition If the Jury find a man guilty in Trespass for a foot where it is layd in an Acre good enough and so in all Actions where damages onely are to be recovered Nota. Error assigned because in trespass nothing was entred of the Fine c. where it was a continued trespass and part of it was layd to be after the Pardon Nota. Nota. If the verdict find the tenure in substance though not in manner and form it is good intrespasse Difference between Replevin and Trespass In a writ to enquire of damages the Plaintif is not bound to prove the property of goods but the value only Where of his own wrong without such cause shall be a good issue and where not The Defendant prescribed for a passage over Land and naught it should have been for a way Nota. If the Lord cut the Wood in which the Commoner hath Estovers he shall have an Action of the Case but not an Assise Nota. Nota. Nota. An action will not lie for the counter-part of an Indenture without a speciall grant Nota. A man cannot Justifie the digging of a mans ground in hunting a Badger Nota. Nota. One Venu out of two places in the same County Whether a Copyholder may lop the trees growing upon his Copy-hold and held he might The Copy-holder is in by custome which is above the Lords estate The Copy-holder shall have trespas upon the Case against the Lord for cutting down of trees Nota. Nota. Nota. Nota. Nota. Nota. Waste in the Tenuit for digging of Sea coals Custodes Brev. Capital Prothon Sedi ' Prothon Try ' Prothon Cliri ' Warr. Cliri argenti Regi Cliri Error Cic. lib. 1. de Invent. Rhet. Prohibition upon the statute of 23. H. 8. Chap. 9. Prohibition to the High Commissioners High Commission Prohibition Joynt prohibitions and severall Counts Prohibition upon the statute of Symony upon the stat of 31. Eliz. Prohibition upon the Statute of 32 H. 8. for the dissolution of the Hospitall of Saint Johns of Jerusalem For not setting forth Tythes Husband sue only Prohibition to the Cort of Requests Against Forreiner for Ornaments for the Church and for Sextons wages Admiralty Contract for retaining of Tithes Admiralty Prohibition At the Archess discussed in right of Office Prohibition Admiralty for staying ships for Ballast High Commissioners and their power in Ministring Oâ—th and taking obligation High Commission Clandestine marriage Admiralty Coâ—rt if a thing done beyond Sea shall be there tried Agreement by word â—…p back tithes Where a Prohibition shall be granted without Action hanging High Commissioners Alimony Adultery Houghton Shirley Barker Court of Admiralty's Jurisdiction Admiralty Prohibition Modus decimandi Prohibition to a Court Baron Replevin 2. Executors one refuses Waste 2. Executors one refuses Bargaine and sale upon Condâ—… Ravishment of Ward Mich. 〈◊〉 Jacobi Rot. 213. Common of Pasture Trespasse Ejectione firmae Common Recovery Judgement in Debt Accompt See the beginning fol. Debt by Executor Administrators during the minority of the Executor Action upon the Case for words Replevin Attornement of Tenant being under age of 21. yeares Shirley Harris Harris Montague Hutton Surrender after Statute acknowledged Executors sued and also the Heire Court of Equity Debt upon a Bill Harris Shirley Fealty gives Seisin of all annuall Services Atturney brings Action of Debt for Fees Survivor doth not hold amongst Merchants to have all Award void Action upon the Case for words Devise that Executors shall sell Land A Towne incorporated with the consent of the greater part Action on the Case for slander Action upon the Case for suing one in a Court which hath no Jurisdiction Prescription for Common for Beasts without number Priviledge out of higher Court Fine amended Feoffinent to a Son and Heir for a valuable consideration Avowry Teste of a Venire facias amended after verdict Ejectione firme Ejectione firme Dodridge Houghton Replevin Grant without date Obligation Accompt Information Dodridge Hanghton Montague Dodridge Dower Debt against Administrator Commission to the Councell in Wales Caveat to a Bishop If administraon to the next of blood cannot be repealed Action for words Trespasse for breaking a House and taking a Cow Haughton Barker Barr not good Copy-hold intailed Extent upon a Statute Summons in Dower Patent of a Judge of the Common bench Action upon the case for slander Haughton Barker Periured Actionable Trespasse for imprisonment Dodridge Hutton Coram non judice Judgement void Shirley Wynch Foster Arbitrement Lease by the Dean and Chapter of Norwich Hutton Haughton Office granted by a Bishop Assumpsit Wilt of Right Haughton Nicholls Dower of titâ—e of Wooll Attachment Executrix during nonage Nicholls Harris Copy-holder Harris Dodridge Coke Replevin Waste Informer Lybell Debt against Administrator Copy-hold Coke Revocation of Uses Dodridge Nicholls Dodridge Nichols Wynch Warburton Coke Common Recovery Obligation to perferme Covenants Arrest of Judgment Audita querela Wast Estrepement awarded Ejectione firme Refusall Lord of a Mannor inclose the Demesnes adjoyning to the Common Warrantia Charte Dodridge Nicholls Devise of a Lease Dodridge Harris Assent to a Legatee Remainder of a Chattell Sherley Debt by Obligation Request is necessary for his Rent though that he have a bond for performing Covenants Nichols Debt Wynch Warburton Debt against Executors Davis What acts doe make an Executor De son tort what not Barker Warburton Wynch Trespasse Harriot Nicholls Harris Coke 253 Eliz. Dyer 193. a. Wrensfords case accordingly Warberton Wynch Release Cinque Ports Tenant for life with warranty Nicholls Haughton Wynch Warburton Ayd granted Coke Wynch Verdict uncertaine Falkland What is so called Warburton Coke Quod non occupantur conceditur Debt against Administrator for Rent in the Debet and Detinet Chibborne Detinet onely 2. Heire charged in Debet and Detinet 3. Towse Crook and Harris Joynt Covenant shall survive Copy-holder shall hold charge Error Elegit Testatum where no Writ had issued Confirmation to a Copy-holder destroys Common Expresse Covenant qualifies Covenant in Law Prohibition Defendant re-enters after Possession delivered by Habere facias possessionem Custome among Copy-holders Nonsuit after Verdict Reservation of Rent Michaelmasse or ten dayes after Grant of Common extinct Exposition of Usage Ejectione firme Errour Abatement of a Writ by entry Markhams Grant Earle of Rutlands Patent Challenge Earl of Rutlands Patent Challenge Abatement Errour Variance Seisin Abridgment of the Plaint in Assise Yelverton Fenner Challenge prin Flemming What matter shall be assigned for Error after Judgement Variante Challenge Seisin Misnaming of a Corporation Walter Yelverton Fenner Flemming Prohibition Prohibition A married Wife cannot make a Letter of Attorney Replevin Warburton Justice Walmesley Re-entry after possession executed Slander of Attorney Grand Cape Petit Cape Waging Law Release Inn-Keeper in London Action of false Imprisonment Serieant Harris the younger Walter Walmesley Coke Priviledge Assise View Coke Walmesley Challenge Errour in a Fine Barwick Returne of Writs Idemptitas nominis Fine Infant Tayle Maintenance Habeas Corpus Prohibition Trespasse for Slander Party Jury of two Counties Action upon the Case for Slander Errour Covenant for Rent Continuance Assumpsit Consideration Debt against Executors Errour Ve. fa. hab Carpus Formedon in Remainder Challenge Partition Dures Action upon the case for slander Prohibition Will. Devise Priviledge Postea 218. Adjournment of Tearm Infant levies Fine brings Errour Action upon the Case Action upon the Case Debt for Obligation Hutton Dodridge Court Sheriff committed to the Fleet. Grant of a Rent Priviledge of London Harris Hutton Where the Owner of Wood may Inclose Hutton Arbitrement Submissior Revocation Devise and grant â—enures to bargaine and Sale Harris Lease to determine upon Limitation Grant of the King that the Burrough should be incorporated Bayle Suit begun hanging another Writ Casuall intire Services Harris Nicholls Foster Dauiell Warburton Walmesley Coke Trade with Infidels without License Prohibition to the Court of Requests Approvement of Common Walmesley Foster Action upon the Case for Slander Bankrupt actionable Grant of Reversion Error in Proclamation Forfeiture of Office of a Chiroghapher Release Error in a Writ of Dower Copy-hold Certificate of the Bishop Minister Arrested Grant of the King of Alnage Haughton Dodridges Statutes how to be understood c. Account Devise of a Teerme Award Submission Arbitrement Where the death of the Defendant in Execution shall be satisfactory Dodridge Certiorari Outlawry Hutton Foster Debt upon escape against whom Warburton Land extended at too high rate Walmsley Coke Harris Haughton Foster Justice Warburton Walmsley Coke Charta de Foresta Assise Office Trespasse Estovers Boote its signification c. Nicholls Walmesley Coke Fee when forfeited Trespass Grant le Roy.