reversion shall be to both of them but if it be by Deed indented the rent shall go to one only according to the literal reservation Vide Litt. 80. 346. But if the Lease had been made by several Limitations as Habendum one Manor for 20 s. and the other Manor for 10 s. then the Lease and the Reversion had been several but here the rent shall not rule the reversion but the reversion the rent and the rent shall be of the same nature as the reversion Tenant for life makes a Feoffment in Fee upon condition and re-enters for the condition broken now by that re-entry the Freehold is reduced to the Lessee for life and the Fee unto the Lessor but the Forfeiture remains Two Ioyntenants one of them makes a Feoffment in Fee of his Moiety upon condition and for the breach of the condition re-enters the Ioynt Estate is revived And he conceived that the Grantee of part of the Estate or part of the Land should not take advantage of the condition and he said that the Bargainor is an Assignee within the Statute If Tenant in Tail makes a Lease for years and afterwards bargains and sells the reversion the Vendee hath a Fee simple determinable and may enter for the condition broken If a reversion be granted to two and to the Heirs of one of them they are Assignees within the Statute and if he who hath but an estate for life surviveth he also is an Assignee for the entire reversion passeth out of the Grantor and that is my Rule Iudgment was given against the Re-entry LXXXIII Pasc 30 Eliz. In the Kings Bench. Surrender LEssee for 21 years took a Lease of the same Lands for 40 years to begin immediately after the death of J. S. It was holden in this case that the same was not any present Surrender of the first term but if J. S. dye within the term then it is a Surrender for it may be that J. S. shall survive the first term Pasc 30 Eliz. In the Kings Bench. LXXXIV Anderson and Heywoods Case Copyholder A Copyholder of an Inheritance of a Manor which is in the hands of the King is ousted of his Copyhold It was holden that he hath not gained any Estate so as he may make a lease for years upon which the Lessee may maintain Ejectione firmae but he hath but a possession against all Strangers And it was holden in this case that if a Copyholder dyeth 1 Leon. 100. Rumny and Eves his heir within age he is not bound to come to any Court during his Nonage to pray admittance or to tender his Fine also if the death of his Ancestor be not presented nor proclamations made he is not at any mischief although he be at full age Pasc 30 Eliz. In the Kings Bench. LXXXV Cook and Songates Case IN Assumpsit Assumpsit the Plaintiff declared whereas Lis controversia had been moved between the Plaintiff Lord of the Manor c. and the Defendant claiming certain Lands parcel of the said Manor to hold the same by Copy c. And both the said parties submitted themselves to the Iudgment and Arbitrement of Mr. Godfrey a man learned in the Law. concerning the said Land and the title of the Defendant to the same The Defendant in consideration that the Plaintiff promised to the Defendant that if the said Mr. Godfrey should adjudge the said Copy to be good and sufficient for the title of the Defendant that then he would suffer the said Defendant to enjoy the said Land accordingly without molestation the Defendant reciprocally promised to the Plaintiff that if the said Mr. Godfrey should adjudge the said Copy not to be sufficient to maintain the title of the Defendant that then he would deliver and surrender the possession of the Land to the Plaintiff without any Suit. And shewed further that the said Mr. Godfrey did award the said Copy utterly to be insufficient c. Yet the Defendant continued the possession of the said Land It was moved that the same was not a good and sufficient consideration to ground an Assumpsit But Gawdy Iustice said it was a good and sufficient consideration because it was to avoid Controversies and Suits And afterwards Iudgment was given for the Plaintiff Trin. 26 Eliz. In the Kings Bench LXXXVI Taylors Case IN Assumpsit the Case was Assumpsit That the Defendant promised to carry certain Apples for the Plaintiff by Boat from Greenwich in the County of Kent to London and the Apples being in the Boat the Boat in which they were by a great and violent Tempest was sunk in the River of Thames so as the said Apples perished c. It was holden to be no Plea in discharge of the Assumpsit by which the Plaintiff had subjected himself to all adventures LXXXVII Trin. 26 Eliz. In the Kings Bench. Devise A. Seized of Lands in Fee and having Issue two Sons Richard and Gilbert by his Will willed That if his Son Richard dye before Issue so that the Land descend to my Son Gilbert then I will that my Overseers shall have the Government of my Lands and of my Son Gilbert Richard took a wife and dyed she being young with Child with a Daughter the Devisor died the Daughter was born It was adjudged in this Case that by this Devise the Daughter was excluded from the Inheritance and that Gilbert should have the Land. Trin. 32 Eliz. In the Kings Bench. LXXXVIII Lukes Case LUke Esq of Tedcaster was Indicted upon the Statute of 13 Eliz. cap 8. for being a Broker in a Vsurious Contract for which he encurred a Praemunire Who pleaded Not Guilty upon which they were at Issue and at the day of the Return of the Distringas the Iurors appeared and the same day that the Iury was to be taken Popham Attorney General sent for the Distringas and for certain causes for the Queen would not proceed Note that the Attorney was informed that the Iury was partial It was moved by Cook that the Attorney could not stay the Proceedings the Writ being returned and the Iury appearing he could not stay the Tryal for no President is thereof Popham The Entry shall be in this case Vicecomes non misit breve Cook That is false and the Sheriff is sworn to make a true return but by consent of the Parties such a thing may be done for Consensus tollit Errorem Quaere 33 Eliz. In the Exchequer LXXXIX The Queen and Painters Case Accompt of the King against a Stranger SIr William Pelham was Surveyor of the Ordnance and delivered the money of the King to Painter Clerk of the Ordnance It was holden in this case That for the said money the Queen might have Accompt against Painter although he wanted a privity which cannot be so in case of a common person for if any Receiver make one his Deputy I shall not have an Accompt against him Popham Attorney General If one of
he conceived that during the vacation the rent should go to the King and therefore perhaps he especially limited it to be paid to the Dean and Chapter of York and there the Proviso did not make a Condition For although it was limited to be paid to the Dean and Chapter in the time of the vacation with a Proviso or by way of Promise yet there it is a Condition for all is one Corporation for the Dean and Chapter are part of the Corporation to whom it was reserved before for it was reserved before to the Bishop and his Successors But 15 and 16 Eliz. Andrews and Cromwells Case where John Blunt sold a Manor to Andrews and his Heirs and Blunt covenanted to suffer a Common Recovery for the better assurance thereof and afterwards there was a Proviso Provided always That Andrews re-grant the Advowson which was appendant to the Manor to Blunt for his life and because there it stands substantivè by it self therefore it was holden to be a Condition and yet truly it was not the meaning that for not granting of a pelting Advowson that the whole former Estate of the Manor being of great value should be defeated yet notwithstanding it was holden to be a Condition and there also the Opinion of Br. 35 H. 8. is controuled That where also the Opinion of Br. 35 H. 8. is controuled that where a Proviso is jumbled amongst Covenants that it doth not make a Condition Proviso never makes a Covenant therefore either the Sentence shall be void or it shall be a Condition As if a Lease for years be made Proviso that the Lessee for years do not commit Waste it is no covenant He said as to the second point that the same was adjudged between Andrews and Cromwel where a rent was payable every half year and there as here the whole rent was demanded and it was good for he is not to pay the one moiety and he is at his peril to pay the one moiety and he who denies the whole denies every part Et quicquid dicitur de toto dicitur de partibus It was adjourned Hil. 29 Eliz. In the Common Pleas. CLXII The Lord Mountjoyes and Barkers Case IN an Ejectione firmae upon a Special Verdict the Case was this King Ed. 6. granted the Manor and Hundred of Tremington in Fee rendring rent to hold of the Manor of East Greenwich in Socage reddendo annuatim 136 l. Queen Mary reciting the first Grant in the first year of her reign granted the rent and fealty and the Manors of Cauford D. S. Et etiam Manerium nostrum Hundredum de Tremington although she had not the Manor to the Marquess of Exceter after which the Marchioness being seized of the Manor of Cauford holden in Capite and of other Lands 4 and 5 Philip and Mary devised the Manor of Cauford D. S. and whereas she had nothing in the Manor of Tremington but the rent and fealty out of it she devised the same with the others to the Lord Mountjoy and also she devised divers Legacies and Annuities to her Servants and others And devised by the same Will that they should be levied of the Manor of Tremington and of the Manors of D. S. whereas D. S. were not Manors but Farms And one Barker was found Heir to the Devisor who claimed to have the third part The first question was If the rent and fealty here holden in Capite passed by the name of the Manor or not and if they passed what quantity passed Walmsley They do not pass by that name for this rent nec in rei veritate nec in reputatione was ever taken for a Manor Also she hath named it in her Will between those which are very Manors by which it appeareth that her intent was not to pass it unless it was a Manor as the other which sense is also fortified that they shall be levied parcelled and taken by which I conceive her meaning was that there should be some place to which the Devisees might resort to levy it Further It is taken for Law in Wills that a thing implyed shall not destroy a thing expressed But if by implication the Rent should pass then the Manor of Cauford should not pass which was her express will to pass As 16 Eliz. Dyer 330. where a man deviseth his Lands to one and his Heirs Males and if he dye without Heir of his Body c. Here he shall not have Tail general to the Heirs of his Body but to the Heirs males of his body for that was the express limitation and the other after but implication So 16 Eliz. Dyer 333. in Chapmans Case But our Case is better for that there are not words sufficient to warrant any implication for nec in veritate nor in common speech was it ever taken for a Manor 27 H. 6. 2. 22 H. 6. 39. Green Acre may pass by the name of a Manor although it be but an Acre of Land because it is known by such name In 27 H. 8. a man having suffered a common Recovery to his use willed that his Feoffees should sell c. So in Chapmans Case a man in his Will limited a Remainder to his Family there it is taken the same is a Remainder to those which are his next of Blood. So 41 E. 3. a man deviseth Land to A. his Daughter in truth she being a Bastard she shall have it because she is known by the name of Daughter So if there be Grandfather Father and Son the Father dyeth and the Son gives Lands to his Father and his Heirs the Grandfather shall have it for that the Son so called him 19 H. 8. Lands are devised to the right Heirs of J. S. who is attainted having Issue a Son the Son shall not have the Land for the word Heir intends one who may inherit but he cannot because a man attainted cannot have an Heir And that is a stronger Case than our Case in which there is not any affinity with a Manor for it is but a sum in gross but if it had been an Acre of Land peradventure it should have passed but being Rent Common Estovers or other Profits they cannot pass for they have not any resemblance to the Mannor but peradventure a man having a Manor parcel in Demesn and parcel in Services if he alieneth his Demesns and afterwards deviseth his Manor the Services will pass Gawdy All the difficulty of the Case is this If by the Devise the rent out of Tremington shall pass for if not then the third part thereof cometh to Barker And I conceive clearly That the rent shall pass for Wills shall have a favourable construction according to the intent of the Devisor and no part thereof shall be void if by any means it may be made good for intent then appeareth that something should pass out of the Manor of Tremington for otherwise a Clause in her Will would be frivolous For it is precisely found by the Iury that
neither at the time of the Will nor at the time of her death she had nothing of the said Manor of Tremington but the said Rent of one hundred thirty and six pounds Also it may be taken that she who devised was ignorant of the Law and conceived that it was a Manor when she had Rents and Services out thereof notwithstanding that those who are learned in the Law know that a Manor could not pass without there was two Suitors at the least 21 R. 2. Devise 27. Lands are devised to one for life the remainder Ecclesiae Sancti Andreae in Holborn there it is holden in an Ex gravi Querela that the Parson should recover for otherwise the Devise should be void if the Parson should not have the Lands and in Wills shall subserve and give place to the intent of the Party and therefore if a man deviseth that his Lands shall be sold for the payment of his debts his Executors shall sell them and to that intent the naming of them Executors is sufficient Plow Com. 523. in Weldens Case it is vouched to be adjudged that if one after the Statute of 27 H. 8. deviseth that his Feoffees shall be seized to the use of A. in Fee that it was a good Devise of the Lands to A. and yet then he had not nor could have any Feoffees c. But the Party was ignorant of the Statute and his intent to pass the Land was apparent in that Case the words were as much impertinent to the matter as in our Case for there he had not any Feoffees as here she hath not any Manor Br. recites That in 38 H. 8. it was holden by Baldwin Shelly and Morgan that if a man who had Feoffees to his use would after the Statute of 27 H. 8. that his Feoffees should make an Estate to J. S. that the Land should pass to J. S. 26 H. 8. Feoffments Faits 12. Land cannot pass by the Deed of an House for it cannot be parcel of an House but an Acre of Land may be given by the name of a Carve and a Carve of Land by the name of a Manor and yet a Carve can be no more a Manor than this rent yea Rents and Services more resemble a Manor than a Carve of Land. It cannot be intended that her Will was here to pass the Manor it self which was not in her but in another Also she by four years before had the rent and therefore it shall be intended that it was her meaning to pass the same which she her self received and no other thing and although in the Devise the rent be specially named and the Manor also yet the same shall not alter the Case for if a man grant the Reversion upon an Estate for life and by the said Deed grants the Land and the Tenant attorns and the Grantee deviseth all his Land the Reversion shall pass without all question If a man grant the Advowson of D. and in the same Deed the Church and Rectory of D. and the Grantee deviseth the Rectory of D. the Advowson shall pass In Adams Case Plow Com. 195. a man leaseth his Capital Messuage rendring rent there the question is If the Reversion or Rent shall pass It was adjudged That all which he had passed As to that that it cannot be levied out of the Rent for that no place is therein of Distress I say that she did not know whether a lesser rent might be paid out of a greater rent and 1 H 4. Multure was granted reserving rent and the Grant was good The words of the Will are All which Manors Lands and Tenements c. she devised to the Lord Mountjoy and these words expound her meaning for although the word Rent be not within the word Manor yet the words Lands and Tenements do comprehend it and words subsequent in Wills may express the Premisses As 16 Eliz. Dyer 333. Chapman seized in Fee of two Houses having three Brothers devised the House in which A. inhabited to his three Brethren and A. to dwell there and they not to raise the rent and devised the House in which B. his Brother dwelt to him and that he pay to C. his Brother 3 l. for to find him at School and otherwise to remain to the House Proviso that the Houses shall not be sold but shall go to the next of the Name and Blood which are Male and dyed B. his brother dyed without Issue the eldest of the two middle brothers entred and had Issue a Son and dyed It was a Question If the Son or the middle brother should have the House And it was holden that the Son of the eldest should have it in Tail which Exposition was by reason of the words in the Proviso that it should not be Sold and that it should go to the Heirs Males Shuttleworth The rent shall not pass by the Devise for the construction of a Will ought to be according to the words or according to the intent collected out of the words and not by a thing out of the Will for then a stranger shall be the maker of the Will of another And 19 H. 8. if a Will be doubtful it ought to be expounded for the Heir at the Common Law. And if the rent ought to pass it ought to have apt words and not the name of a Manor And thereupon he put the Case that where one deviseth certain Lands to one and afterwards his Goods Leases and other things to another All his Goods and Terms shall pass but not his Lands for that there wanteth apt words to pass them for the word other things shall not pass them and this set order ought to be observed for the avoiding of confusion And the Rent and Services shall not pass for the two parts admitting the words sufficient for they cannot be divided But Periam said That the rent might be divided Anderson said That it should be but a Rent-seck Periam said it was a Rent distrainable of Common Right but Anderson doubted of it but they all agreed that it might be divided but there should not be two Tenures Fenner The Rent should pass by the Devise of the Manor for there is do difference betwixt a Manor and a Seigniory in gross amongst Lay-men and then their intent shall be taken although it was not written by apt words for in Grants a Reversion shall be taken for a Remainder and à Fortiori a Devise And 7 E. 3. a Manor shall pass by the name of a Knights Fee and 19 H. 8. a Wood shall pass by the name of Land and 38 E. 3. by grant of totam terram which A. held in dower the Reversion shall pass Afterwards in Mich. Term the Plaintiff discontinued his Ation And Periam told me I being at his House that the Opinion of the Court was against the Plaintiff and if it had not been discontinued they would have given Iudgment accordingly Now this was the intent of the Lord Mountjoy The
Praepositus Socii Scholares Collegii Reginalis in Oxonia Gardianus Hospitalis c. And in an Ejectione firmae upon that Lease it was found for the Plaintiff It was objected in Arrest of Iudgment That this word Gardianus ought to be in the Plural Number Gardiani for the Colledge doth consist of many persons and every one of them capable and not like to Abbot and Covent The Court was all of Opinion that the Exception is not to be allowed but that as well the Lease as the Declaration were both good for the Colledge is a Body and as one Person and so it is as well Gardianus 30 Eliz. In the Common Pleas. CLXXX Greens Case AN Action upon the Statute of Huy and Cry was brought by Green The Case was Upon Statute of Hue and Cry. That the Plaintiff delivered to his Servant certain monies to carry the same from Bristol to London in which journey the Servant was robbed upon which matter the Master brought his Action It was moved That the Plaintiff by the Statute of 27 Eliz. c. 13. is not a person able to bring this Action because he was not examined twenty days before the Action was brought but the Exception was disallowed for the Court was clear of Opinion that the Master should not be examined but the Servant CLXXXI 30 Eliz. In the Common Pleas. THis Case was moved upon the Statute of 1 and 2 Phil. and Mary cap. 12. The Town of Coventry was within the Hundred of Offley in the County of Stafford and Queen Mary by her Letters Patents made the said Town a County And now a Distress was taken in the residue of the said Hundred and brought into the Town of Coventry and if that be within the Statute was the question It was holden by the Court clearly That now the Town of Coventry is exempted out of the Hundred aforesaid and is a thing by it self and it is a good challenge for the Hundred of Offley that the Iuror challenged dwells in the Town of Coventry for now it is not parcel of Offley as to the King But as to the Lord of the Hundred the said Town remains parcel of it notwithstanding the Queens Grant. And the Citizens of Coventry shall do suit at the Court of the Hundred but in an Action upon the Statue of Hue and Cry of a Robbery committed in the residue of the Hundred the Citizens shall not be charged 25 Eliz. In the Common Pleas. CLXXXII Dolmans Case A. Seized of a Mannor to which two parts of the Advowson was appendant presented and afterwards aliened the Manor cum pertinentiis the Alienee presented and purchased the third part of the Advowson and presented again one J. S. Chaplain to the Earl of Rutland who had a dispensation and took another Benefice and was inducted 1 Eliz. and died 11 Eliz The Queen presented for Lapse and her Clerk was instituted and inducted the Alienee Lord of the Manor died seized inter alia this Manor was allotted to the Wife of Dolman for her part and he brought a Quare Impedit It was moved If Dolman should not joyn in this Quare impedit with her who had the third part and by Walmsley he need not Vide 22 E. 4. 8. By Brian If an Advowson descend to four Coparceners and they make Partition to present by turns and the third presents when the second ought for that time his presentment is gone but when it comes to his turn again he shall present which proves that they are several Tenants CLXXXIII Mich. 26 Eliz. In the Common Pleas. ONe recovered certain Copyhold Lands in the Court of the Lord of the Manor by Plaint in the nature of a Writ of Right It was moved in the Common Bench If a Precept may be made and awarded out of the said Court for the Execution of the said Recovery and to put him who recovered in possession with the Posse Manerii Posse Manerii Comitatus differ as in such Case at the Common Law with Posse Comitatus it was resolved clearly that force in such Cases is not justifiable but by Mandate out of the Kings Courts Hil. 29 Eliz. In the Common Pleas. CLXXXIV Anne Bedingfields Case DOwer was brought by Anne Bedingfield against Thomas Bedingfield the Tenant brought out of Chancery a Writ de Circumspecte agatis containing this matter that it was found by Office in the County of Norfolk that the Husband of the Demandant was seized of the Manor of D. in the County of Norfolk and held the same of the Queen in Chief by Knight Service and thereof died seized the Tenant being his Son and Heir apparent and of full age by reason of which the Queen seized as well the said Manor as other Manors and because the Queen was to restore the Tenements tam integre as they came to her hands it was commanded them to surcease Domina Regina inconsulta It was resolved that although the Queen be intituled to have Primer Seisin of all the Lands whereof the Husband died seized yet this writ cannot extend to any Manors not found in the Office for by the Law the Queen cannot seize more Lands than those which are found in the Office and therefore as to the Land found in the Office the Court gave day to the Tenant to plead in chief And it was argued by Gawdy Serjeant for the Tenant that the Demandant ought to sue in the Chancery because the Queen is seized to have her primer Seisin And cited the Case 11 H. 4. 193. And after many Motions the Court clearly agreed that the Tenant ought to answer over for the Statute of Bâ—gamis cap. 3. pretends that in such Case the Iustices shall proceed notwithstanding such Seisin of the King and where the King grants the Custody of the Land it self 1 H. 7 18 19. 4 H. 7. 1. Ã multo fortiori against the Heir himself where he is of full age notwithstanding the Possession of the King for his Primer Seisin by the Statute of Bigamâ—s where the Heir was of full age there the wife could not be endowed in the Chancery But now per Prerogativa Regis cap. 4. Such women may be there endowed si Viduae illae voluerint And after many Motions the Court Awarded that the Tenant should plead in Chief at his peril for the Demandant might sue at the Common Law if she pleased Vide Cook 9. Part Acc. CLXXXV Savages Case ONe Savage was presented to a Benefice and afterwards took another and then purchased a Dispensation which was too late and then was qualified and afterwards accepted of the Archdeaconry of Gloucester and Underhil who had the Archdeaconry libelled against the said Savage in the Spiritual Court. Vide the Case reported in the first Part of Leonards Reports Sect. 442. Ideo Quaere there CLXXXVI Pasc 26 Eliz. In the Kings Bench. HVsband and wife Copyholders for Life the Husband surrendred to the Lord who granted the Land over by Copy to a Stranger
that It was agreed by the Court that that had been a good Exception if the matter had not been relieved by the Statute of 27 Eliz. of Demurrers Another matter was objected upon the Statute of 32 H. 8. cap. 37. upon the words of the said Statute so long as the Lands remain in the possession of the Tenant in Demeasn who ought immediately to have paid the said Rent And it was said by Anderson and Rhodes that the Conusans was good enough and within the relief of that Statute For Lewknor was the immediate Purchaser and although he had let the Lands to another at will that did not make any thing for yet the Estate of the Land is within the words of the Statute for the Land remains in the Seisin of the first Purchaser And note that in this case Bouchier dyed before the Lease expired so as the Rent was not determined in his life And afterwards Iudgment was given for the Defendant Mich. 30 Eliz. In the Kings Bench. CCXXXV Rawlins and Somerfords Case IN Ejectione firmae the Case was Cartwright possessed of a house for the term of 30 years demised a Stall parcel of it to Wartow for two years and afterwards assigned the whole house to Rawlins for all the years Rawlins redemised the same Stall to Cartwright for twenty years but Wartow did not attorn but before the said Redemise Cartwright by Deed indented demised the said Stall to Wartow for six years after the said two years ended and afterwards Rawlins redemised all the house to Cartwright for 21 years rendring rent with clause of re-entry and upon the Indenture of the said Redemise was endorsed that before the sealing and delivery c. it was agreed between the Parties that Wartow should have the said Stall according to the Lease for six years to him made And afterwards Cartwright redemised the said Stall to Rawlins for ten years and afterwards the Rent was behind And if the Rent reserved by Rawlins upon his demise to Cartwright was suspended or not was moved a question Cook argued it was not suspended for Rawlins had in the Estate but an Interest in futuro which cannot suspend the Rent before in possession And he put the Case 31 E. 1. Fitz. Discent 17. Lord and Tenant the Tenant is attainted of Felony and dyeth now the Seignory is not presently extinct For if the Lord takes Fealty of the Son the Seignory doth continue in Esse and Vide Acc. Fitz. N. B. 144. 26 E. 3. 72. Houghton the rent is suspended as if I lease Land and an Advowson rendrint rent and I take back an Estate in the Advowson now the rent is suspended But as to that it was answered That there the party hath a present interest in the Advowson but so it is not in the Case at Bar. And by Cook A. seized in Fee of three Acres makes a Lease of two of them for 21 years rendring rent and afterwards the Lessee leaseth one of the said Acres for years to the Lessor to begin two years after it is not a present suspension of the rent until the Lease come into possession c. And afterwards it was adjudged that by the Lease in futuro the rent was not suspended Pasch 28 Eliz. Rot. 255. Mich. 26 Eliz. In the Exchequer CCXXXVI The Guardians of the Monastery of Otleries Case IN the Exchequer it was found by Special Verdict 1 Leon. 4. That the Guardian and Chanons Regular of Otlery were seized of the Manor of O c. and that 22 H. 7. at a Court holden granted the Lands in question to W. and W. his Son for their lives by Copy according to the Custom of the said Manor and afterwards 30 H. 8. they leased the same Land by Indenture to H. rendring the ancient and accustomed rent and afterwards surrendred their Colledge c. and afterwards W. and W. dyed And if the said Lease so made during the Estate Customary notwithstanding the Statute of 31 H. 8. were good or not that was the Question being within a year before the Surrender c. And it was argued by Egerton Solicitor That the said Lease was void by the Statute the words of which are Whereof or in the which any Estate or Interest for term of Life year or years at the time of the making of any such Lease had his Being or Continuance and was not then determined finished or expired And therefore we are to see if this right or possession which W. and W. had at the time of the making of the said Lease was an Interest or Estate for Life And as to the word Estate est nihil aliud than measure of time for an Estate of Fee-simple is as much as to say an Interest in the Lands for ever and so of the rest and therefore W. and W. had at the time of the making of the Lease an Estate for the thing demised And although such Customary Tenants are termed in Law Tenants at will yet they are not simply so nor meer Tenants at will but Tenants at will secundum Consuetudinem Manerii which Custom warrants his possession here for life and therefore it is a more certain estate than an estate at will for the Copyholder may justifie against his Lord and so cannot a Tenant at will whose estate is determinable at the will and pleasure of his Lessor and although this estate is but by custom and by no conveyance yet it is such an estate which the said Statute intends non refert by what conveyance the estate is raised so it be an estate and this estate being supported by custom is acknowledged in Law to be an estate and so accounted in our Law and the Law hath notably distinguished Copyhold tenancies by the custom and tenancies at will at the Common Law for a Copyholder shall do fealty and have aid of his Lord in an Action of Trespass he shall have and maintain an Action of Trespass against his Lord his wife shall be endowed the husband shall be Tenant by the Curtesie without a new Admittance So customary Tenancies are within the Rules and Maxims of our Law As in the Case of Horewood There shall be a possest o fratris of it without admittance and it was adjudged 8 Eliz in the Kings Bench That if a Copyholder surrender to the use of another for years and the Lessee dyeth his Executors shall have the residue of the term without any admittance M. 14 15 Eliz. A Copyholder made a Lease for years by Indenture warranted by the custom the Lessee brought Ejectione firmae it was adjudged maintainable in the Common Pleas Although it was objected That if it be so then if the Plaintiff recover he should have an Habere facias possessionem and there Copyholds should be ordered by the Common Laws of the Land. 10 Eliz. Lord and Copyholder for Life the Lord grants a Rent-charge out of the Manor whereof the Copyhold is parcel the Copy-holder surrendreth to the use of
was 100 years since Quod mirum videbatur Curiae hic Audita Querela pleaded And afterwards the Court said to Walter Sue your Audita Querela and upon that you shall have a Supersedeas Mich. 29 Eliz. In the Common Pleas. CCLXIX Sir Richard Lewknors Case Post 225. SIr Richard Lewknor seized of Willingford Park leased the same for years and dyed the Lessee assigned over his term excepting the Woods and Vnderwoods standing growing and being in and upon the premises the Assignee committed Waste the term expired the daughters and heir of Sir Rich. and the husband of the third daughter Coparceners being dead as tenant by the Curtesie brought an Action of Waste against the Assignee and the opinion of the Court was that the husband ought not to joyn in that Action for he can recover nothing for damages he cannot have for the waste was not done to his disinheresin and the Land he cannot have because the term is expired Snag Serjeant I conceive that the exception in the Assignment is good for an Exception of Trees by the Lessor himself in his Lease is good and by reason thereof the Lessee shall not have Fire-bote Hey-bote c. which otherwise he should have and the property of the Trees is in the Lessor and also the Soil 14 H 8. 1 2. 28 H. 8. Dyer 19 vide 46 E. 3. 22 a Lease for years was made with such Exception and the Lessor brought an Action for the Trees cut Qâ—are clausum tregit and that proves that the Soil also is excepted and then the Action of Waste lyes against the Lessee who hath excepted to himself the Wood and the Soil and not against his Assignee Walmsley Serjeant to the contrary And he said where Land is demised the absolute property of the great Trees is in the Lessor and the Lessee hath in such case a qualified property And he cited 2 H. 7. 14. the Lessor commands the Lessee to dig gravel in the Land demised or licenseth him so to do such commandment or licence is not good for the lessor hath nothing to do with the Gravel nor hath any property in it but such licence to cut Trees had been good and Vide 10 H. 7.2 3. Waste is assigned in the breaking de uno muro lapideo the Defendant pleaded the licence of the Plaintiff to break it and upon that they were at Issue And he said If the lessor cutteth trees upon which the lessee brings an Action of Trespass he shall not recover damages according to the value of the trees cut down but for the Trespass to the Soil and for the loss of the Shadow and the Acorns c. and if the lessee cutteth down trees the lessor cannot take them because he hath other remedy Where a reversion is granted to A. and B. and to the Heirs of B. Waste is done A. and B bring an Action of Waste B. shall recover all the damages and A. nothing which proves that all the Interest in the Land demised is in B and not in A. therefore here in the principal Case the Exception is void for that which the Law allows to the former is only House-bote Hedge-bote Plough-bote Fire-bote And he said that the lessee fells the trees and the vendee cuts them down that waste lyeth against the lessee which proves that in that case the Soil doth not pass with the trees by the exception of the trees the Soil is also excepted as a servant to the trees viz. to nourish the trees and if he who excepts the trees cuts them down or roots them up the lessee shall have the Soil And he said that for the property that the lessor hath in the trees if he cuts them down the rent shall not be apportioned And if the lessor granteth the trees to one and his heirs there shall be no Attornment which had been requisite if the Soil had passed At another day it was argued by Shuttleworth Serjeant and exception taken because it is too general scil Quod fecit vastum in terris quas Sir R. Lewknor pater duarum querentium cujus Haeredes ipsae sunt praefato Ford dimisit c. And the Plaintiffs counted the Reversion was entailed by Act of Parliament to the said Sir R. Lewknor and so the Writ ought to be special scil Cujus Haeredes de corpore ipsae sunt for although there be not any such form in the Register yet that is to no purpose for in novo casu novum est remedium apponendum And he compared it to the Case in F. N. B. 57. where Land is given to husband and wife and the heirs of the body of the wife the wife dyeth the husband commits waste the Writ shall be Idem A. de domibus in B. quas tenet ad vitam suam ex dimissione quam inde fecit praefato A. M. quondam uxori ejus haeredibus de corpore ipsius M. matris dicti R. cujus haeres ipse est exeuntibus And Vide 26 H. 8. 6. Cestuy que use leaseth for years the lessee commits waste the Feoffees bring an Action of waste the Writ containeth the special matter although there was not any such Writ in the Register Fenner and Walmsley contrary for there is not any such form in the Register Cujus haeredes de corpore c. and we are not to devise a new form in this case but it is sufficient to shew the special matter in the Count also the words in the Writ are true for the Plaintiffs are Heirs to Sir R. Lewknor and the Count is well pursuant and agreeing to the Writ for they are Heirs although they are but Heirs special of his Body And the Court awarded the Writ good and said that the case is not like the case in Fitz. N. B. 57. nor to 26 H 8. before cited for in the first case the Plaintiffs cannot shew of whose Demise the Tenant holdeth unless that he also shew the special Conveyance scil That the Land was given to the Husband and Wife and to the Heirs of the Body of the Wife for always the Demise to the Tenant ought to be shewed certain which cannot be in both these cases if not by disclosing also the Title to the Inheritance and the Estate in it Another Exception was taken to the Count That where the two Defendants were Tenants in Common of the said Lands demised the Writ is tenuerunt which is intended a joynt-Ioynt-tenure But this Exception was not allowed And Vide 44 E. 3. in Waste the Plaintiff counted upon divers Leases and Fitz. N. B. 60. F. and the Writ shall suppose one Tenet and not divers Tenets Another Exception was taken to the Writ because the two Coparceners and the Heir of the third joyned in the Writ whereas the Husband of the third Sister being Tenant by the Curtesie was alive Vide 22 H. 6 21 22. But that Exception for the Tenant by the Curtesie joyns to no purpose for
Land Rents and Reversion until of the Issues and Profits thereof certain Sums of Mony should be paid to his younger Sons and dyed And Exception was taken to the pleading because it is not specially shewn that the Land devised was holden in Socage And that was holden a sufficient Exception And the Court was of Opinion That the Opinion of Dyer Devises Whiddon and Bendloes in 16 Eliz. was not Law for by the common Law no Land was devisable but by Custom which ought to be pleaded where Title is made by Devise Tenances And now by the Statute all Lands holden in Socage are devisable and but two parts of the Land holden by Knight Service and therefore he who would make Title to himself by a Devise ought to shew the Tenure of it and so it was lately adjudged in the Kings Bench in Thompsons Case And by Anderson and Periam This Feoffment was well executed for the manner of it Attorneys make Livery for the Letter of Attorney is Conjunctim divisim ad intrandum in omnia singula praemissa and upon these words one Attorney may make Livery in one parcel of the Land and the other Attorney in the other parcel and in this case if one of the said Attorneys make Livery in one part only without medling with the residue by himself or by any other the same shall pass for it is not necessary that all pass or nothing at all 7 Eliz. Dyer 79. CCCXI. The Dutchess of Suffolks Case ADrian Stokes and the Lady Francisca Dutchess of Suffolk his Wife brought a Quare Impedit against the Bishop of Exeter and others The Bishop pleaded and demanded Iudgment of the Writ because he said It appeareth by the Writ Quod praedicta Francisca uxor praefati Adriani nominatur in dicto Brevi Domina Francisca Ducissa Suffolk ubi per Legem terrae eadem Francisca by her Marriage betwixt the aforesaid Adrian and her the said Frances had lost her name of Dignity and ought to be named Francisca uxor praefati Adriani Wherefore and because the said Frances is named Lady Dutchess of Suffolk in the said Writ therefore he demanded Iudgment of the Writ And afterwards the Plaintiffs did discontinue their Suit and durst not proceed Vide the Case 7 E. 6. Dyer 79. Mich. 4 5 Phil. Mary CCCXII The Queen Due and Kirbys Case THe King and Queen brought a Writ of Disceit against Due and Kirby and declared That Colley was seized of certain Lands in Fee and holden of the King and Queen as of their Manor of Westbury which Manor is ancient Demesne and so seized levied a Fine to the said Due for Conusans de droit c. Due rendred unto Colley for life the Remainder over to Kirby in Fee Colley dyed Kirby entred as in his Remainder Kirby pleaded That the Land is Frank-fee c. upon which they are at Issue which Issue depending not tryed Due dyed It was moved that the Writ should abate But it was allowed for this Action is but Trespass in its Nature for to punish the said Disceit And Due had nothing in the Land but is named only because he was party to the Disceit And no Land is to be recovered but only the Fine reversed Pasc 26 Eliz. In the Kings Bench. CCCXIII. Russels Case RUssel was condemned in an Action of Debt Execution and after the year and day the Plaintiff sued a Capias ad satisfaciend ' against him and he was taken by force of it and committed to the Marshal as in Execution It was holden by the Court That the same was a void Execution and not only avoidable by Error and therefore the Defendant was discharged for it is not at any Execution and the Plaintiff may have a Scire Facias when he will. Pasc 26 Eliz. In the Kings Bench. CCCXIV Wroth and Capells Case BEtween Wroth and Capell the Case was 3 Leon. 102. That A. was indicted upon the Statute of 8. H. 6. and Exception was taken to the Indictment because there were no words of Freehold in it or to prove that the party grieved had any Freehold whereof he might be disseised But because the words of the Indictment were Expulit disseisivit which could not be true if the party expelled and disseised had not Freehold therefore the Exception was not allowed c. Another Exception was taken to the Indictment for that the words were in unum Tenementum intravit and this word Tenementum is too general and an incertain word and therefore for that cause the party was discharged But the Indictment was further in unum Tenementum 10 Acras terrae eidem pertinent and as to those Acres he was put to answer CCCXV. Pasc 26 Eliz. In the Common Pleas. Execution NOte It was agreed by the Court and affirmed by the Clarks That if an Action of Debt be brought upon an Obligation against two upon one Ioynt Praecipe and the Plaintiff hath Iudgment to recover that one Ioynt Execution ought to be sued against them both but if the Suit were by Original and several Praecipe's Execution might be sued forth against any of them Mich. 8 9 Eliz. In the Common Pleas. CCCXVI. Belfield and Rous's Case IN Dower by Sibill Belfield who was the Wife of Anthony Rous against Thomas Rous they were at Issue upon Detinue of Charters and it was found for the Demandant and it was further found That the Husband of the Demandant of whose Seisin she demanded Dower dyed having Issue Charles Rous Quodque idem Carolus dict' Sibill perceperunt receperunt per spacium sex annorum proxime post mortem dict' Anthonij the Issues and Profits of the said Lands whereof the Demandant now demands Dower and that the said Charles afterwards dyed without Issue after whose death the said Thomas Rous entred c. And Iudgment was given for the Demandant and to recover damages after the death of her Husband CCCXVII Pasc 7 Eliz. In the Common Pleas. Uses BEfore the Statute of Vses a Feoffment is made to the use of a Man sole and a Woman sole and their Heirs and afterwards they inter-marry and afterwards the Statute of Vses came It was the Opinion of the Iustices That they should hold the Land in such sort as they held the Vse scil by several and divided Moieties for by the said Statute the possession shall be executed to the Vse in such Nature Condition and Quality as it was before Mich. 28 29 Eliz. In the Kings Bench. CCCXVIII Sir Gervaise Clyftons Case A Quo Warranto was brought against Sir Gervaise Clyfton 3 Leon. 184. Quo Warranto and shewed That the said Sir Gervaise was seized of a Manor and a Messuage within which he claimed to have a Court with view of Frank-pledge and other Liberties and that without any Grant or Authority usurpavit Libertates praedictas That the Defendant pleaded Quod non usurpavit Libertates praedictas
being sown the Executors of A. take the Corn it was holden the Obligation was not forfeited for that by the Laws the Corn did belong to the Executors II. Pasc 23 Eliz. A Man possessed of a Term devised the same to his Son when he came to the age of 18 years Devise and that his Wife should have it in the mean time and made his Wife his Executrix and died before the Son came to the age of 18 years the Wife took Husband It was holden that she should have the Term as Executrix till the Son came of the age of 18 years III. Mich. 23 Eliz. A Man made a Feoffment in Fee sub Conditione ea intentione that his Wife should have the Land for her life the remainder to his younger Son in Fee The Feoffee died without making such an Estate the Heir of the Feoffor entred it was resolved that it was not a Condition but an Estate which was executed presently according to the intent Trin. 8 Eliz. IV. Manning and Andrews Case Vide 1 Leon. 256. 1 Leon. 345. Fine levied a Bar. HVsband and Wife Donees in special tail the Husband levied a Fine of the Lands It was holden if the proclamations pass in his life time or before the Wife by her entry had avoided the Fine the Issue should be barred otherwise if the Husband had died before the proclamation had passed 27 Eliz. In the Common Pleas. V. Buckhursts Case Extinguishment LEssee for 10 years granted a Rent Charge to his Lessor for the said years the Lessor granted the remainder in Fee to the Lessee for years It was the opinion of the Iustices that the rent was gone because the Lessor who had the rent was Party to the destruction of the Lease which is the ground of the rent 26 Eliz. VI. Pulmants Case Assumpsit ONe who is indebted promiseth to pay it upon request in an Action upon the Case upon that Promise the Party needs not to express the Assumpsit with the request it being an old debt but otherwise it is where there is such a promise without any duty precedent VII Hill. 26 Eliz. In the Kings Bench. Assumpsit A Man in consideration of 20 l. paid him promiseth to assign to J. S. the Lease of a Stranger It was adjudged that an Action would lie upon such a promise because the Assumor might purchase the House and then assign it Hil. 26 Eliz. In the Kings Bench. VIII Rawson and Browns Case A. Being in prison at the suit of B upon an account Assumpsit and in custodia Marescalli The Marshal suffers him to escape A. being at liberty promiseth to B. that if he will permit him to be at large and further if he do such an act that he will pay to him 10 l. which he doth not pay whereupon B. brings Assumpsit against him it was adjudged that the Action would not lie for that both the considerations ought to be proved and A. was at large before 31 Eliz. In the Kings Bench. IX Strangborough and Warners Case NOte Assumpsit That a Promise against a Promise will maintain an Action upon the Case as in consideration that you do give to me 10 l. on such a day I promise to give you 10 l. such a day after 31 Eliz. X. Escrigs Case IF an Executor promiseth to a Creditor Assumpsit that if he will forbear to sue him until such a time that then he will satisfie the Creditor his debt in that case the Execuor is liable to pay the debt of his own goods adjudged 30 Eliz. In the Kings Bench Rot. 30. XI Kirkman and Reignotts Case A Lease was made to two Habendum to them Occupant and to two others for their four lives and the longer liver of them It was resolved that the two named in the Habendum should not take any thing and that if the two first die there should be no Occupancy for the lives of the two in the Habendum was intended an Estate to them and not a Limitation of the Estate of the first two Pasc 30 Eliz. XII Barkhouse Case DEbt against Lessee for years for rent Forfeiture The Defendant claimed Fee in the Land whereas he had no Fee It was resolved that it was a forfeiture XIII Pasc 31 Eliz. In the Common Pleas. Avowry IT was resolved by the Iustices that an Avowry might be for part of a Rent Mich. 28 Eliz. In the Kings Bench. XIV Strangden and Burnets Case IN an Action of Trover and Conversion of Goods to his proper use in Ipswich The Defendant pleaded that the Goods came to hands in Dunwich in the same County and that the Plaintiff gave unto him all Goods which came to his hands in Dunwich Pleadings absque hoc that he is guilty of any Trover or Conversion in Ipswich It was ruled to be a good manner of pleading by reason of the special Iustification Vide 27 H. 6. But where a Iustification is general the County is not traversable at this day Vide 19 H. 6 7. 24 Eliz. In the Common Pleas. XV. Infant AN Infant made a Lease for years rendring rent and when he came to his full age he said to his Lessee God give you joy of it It was holden by Mead Iustice that thereby the Lease was affirmed and made good Pasc 25 Eliz. XVI Fullers Case ONe is bound to pay his rent at a day certain payment before the day adjudged doth not discharge him 29 Eliz. In the Kings Bench. XVII Carter and Martens Case Payment TWo are bound for a Debt the Principal makes the Surety his Executor who pays the Debt generally Quaere if it shall be as Executor or as Obligor XVIII Pophams Case Bargain and Sale. LAnd was bargained and sold the Bargainee levies a Fine of the Lands and afterwards within the six months the Deed is enrolled It shall pass by the Fine and the Conusee shall have the Land for the Enrollment shall relate to the time of the bargain and sale 18 Eliz. XIX Henninghams Case IT was adjudged in this Case that he who is special Heir by the Custom as of Borough English Land shall have the Writ of Error and not the Heir at the Common Law. Hil. 19 Eliz. Adjudge XX. Parry and Herberts Case LEssee for years upon Condition that he shall not grant over the Land by Will or otherwise Condition and he deviseth the same to his Executors who except it only as Executors and not as Devisees It was holden that the Condition was broken because he had done as much as in him lay to have granted it over In the Exchequer XXI Sir Thomas Hobbies Case A Man hath issue two Sons and is attainted Heirs the eldest Son purchaseth Land and dyeth without issue the second Son shall inherit the Land as Heir to him notwithstanding the attainder of the Father because the blood is not corrupted between the two Sons
Mich. 29 Eliz. In the Kings Bench. XXII Barton and Edmunds Case AN Infant and another were bound for the debt of the Infant Infant the Infant at his full age promised to save the other harmless the Infant died It was adjudged that upon this Assumpsit Assumpsit an Action upon the Case did lie against his Executors XXIII Mich. 36 Eliz. In the Kings Bench adjudged IF an Executor promise to pay a Debt when he hath not Assets It was the Opinion of all the Iustices that no Action upon the Case lieth against him but if he hath assets then it is otherwise And the Heir if he hath nothing by descent is not subject to an Action upon such a promise Mich. 28 Eliz. XXIV The Lord Pagets Case Indictments AN Indictment was Quare vi armis clausam A. B. apud D. fregit whereas A. B. then had a Lease at Will of the land the matter was for digging of Turfs the Indictment was holden to be good XXV 25 Eliz In the Kings Bench. Indictments INdictment De uno Equo where it was a Gelding holden not good But otherwise it is where Trespass was brought de Equo castrato and the Iury found a Gelding and adjudged for the Plaintiff 26 Eliz. XXVI Tucker and Nortons Case Execution AN Infant in Execution upon condemnation in Debt sued a Writ of Error his Father and Brother bailed him It was said the Recognisance shall be by them two only that the Infant shall appear and if the Iudgment be affirmed that they pay the mony and not that they shall render his body to prison for when he is once discharged out of Execution he shall never be in Execution again XXVII Mich. 29 Eliz. In the Common Pleas. Nobleman Recognizance IT was holden by the Iustices That a Nobleman shall be bounden with his bail in a Recognizance that he shall render his body and that upon the Statute of 13 E. 1. If he hath not goods or lands his body shall be taken in execution for the Law in such case excepts only Clarks XXVIII Hil. 26 Eliz. In the Exchequer Felo de se THe Queen granted to one Catalla utlagatorum felonum de se within such a Precinct One indebted to the Queen having Goods is felo de se within the Precinct Resolved the Queen should have the Goods to satisfie her debt 26 Eliz. In the Kings Bench. XXIX King and Cottons Case LEssee for life the remainder in tail the remainder in fee Disseisin Lessee for life makes a Deed of Feoffment of the Land and delivers it and makes a Letter of Attorney to another to deliver Seisin who enters and makes Livery accordingly adjudged that the Attorney is a Disseisor 26 Eliz. In the Kings Bench. XXX Gerrards Case THe Owner of the Lands severed his Tythes Prohibition and a stranger took them and carried them away The Parson libelled in the Spiritual Court against the Owner of the Land for the Tythes who thereupon prayed a Prohibition It was adjudged no Prohibition should issue in this Case for that he might plead the same matter in Bar in the Spiritual Court. Hil. 31 Eliz. XXXI Willet and Wilkinsons Case NOte it was adjudged Surrender that if Lessee for years take another Lease from the Guardian in Soccage that the same is a Surrender of his first Lease Note the second Lease was made in the name of the Guardian Trin. 26 Eliz. XXXII Ould and Conyes Case IT was adjudged Commoner Conies that a Commoner cannot kill Conies which destroy his Common though he hath not any other remedy Trin. 29 Eliz. In the Kings Bench. XXXIII Mayes Case ONe sent a Letter by a Carrier to a Merchant for certain Merchandizes to send them to him receiving a certain sum of mony the Merchant sent the Merchandizes by the Carrier without receiving the mony It was the opinion of the Iustices that the Buyer should not be charged for the mony for it was a conditional bargain and it was the folly of the Merchant to trust the Carrier with the Wares Mich. 30 Eliz. XXXIV Haltons Case A Recognizance was acknowledged before Sir N. Read one of the Masters of the Chancery Recognizance Inrollment and the Recognizor died before it was enrolled it was doubted if it might be enrolled at the Petition of his Executors it was agreed by the Iustices that it might be well enough for it is like to a Conusans of a Fine before a Iudge which may be removed out of the hands of the Iudge by Certiorari and yet it is not a Record till the perfection of it At the same time it was doubted also if the Chancery would aid a man when there wanted the words Heirs in a Deed where the land was sold for mony Chancery compel Attornment But it was agreed that after a Fine levied the Chancery might compel the Tenant to Attorn Hil. 27 Eliz. XXXV Holland and Hopkins Case IN Ejectione firmae it was agreed by the Court that if a Disseisor be of an 100 Acres and he lets the same to divers for Years that the entry into one Acre by the Disseisee is an entry against them all but if they had been Tenants for life Quaere for that then he might have his Action against them And it was said Entre congeable that if one makes a Lease for years rendring for the first two years 10 l. and afterwards 30 l. every year with condition if the rent of 30 l. or any part of it be behind that the Lessor enter The Lessor enters for not payment of the 10 l. that his entry is lawful for the 10 l. was parcel of the rent for it was but one rent Trin. 29 Eliz. In the Kings Bench. XXXVI Clamp and Clamps Case Copyholder Surrender A Copyholder in possession surrendred the Reversion of his land post mortem suam to the Lord to an use c. It was adjudged that thereby nothing passed XXXVII Trin. 21 Eliz. In the Common Pleas. A Lease was made of a Mannor with all Gardens Orchards Yards c. and with all the profits of a Wood except to the Lessor forty Trees to take at his pleasure It was a Question if the Lessee should have the Wood It was the opinion of Dyer That the Wood was not comprised within the Lease but the Lessee should only have the profits as pawnage Leases herbage c. And he said it was a Case adjudged a man made a Lease of a Wood ad faciendum maximum proficuum meliori modo quo poterit that the Lessee thereby could not cut the Trees nor do waste Mich. 33 Eliz. In the Exchequer XXXVIII Butler and Lightfoots Case IT was holden by the Barons Copyholder Surrender 3 Leon. 239. That if Tenant for life be of a Copyhold the Remainder over in Fee to another he in the Remainder may surrender his Estate if there be no custom to
the contrary for the Estate of Tenant for life and he in the Remainder are but one Estate and the admittance of the particular Tenant is the admittance of him in the Remainder XXXIX Mich. 33 Eliz. In the Exchequer IN an Information upon the Statute of 5 Eliz. cap. 4. Upon Statute of 5 Eliz. Apprentices against one for exercising the Trade of a Chandler not having been an Apprentice to the same by the space of 7 years It was holden by the Iustices That for as much as he had been Apprentice to a Taylor for 7 years which is one of the Trades mentioned in the said Statute that the penalty thereof did not extend to him but Iudgment was given against the Informer For it was holden clearly upon the said Statute That if one hath been an Apprentice for 7 years at any Trade mentioned within the said Statute he may exercise any Trade named in the said Statute although he hath not been an Apprentice to it Mich. 33 Eliz. In the Exchequer XL. Sir John Hawkins and Chapmans Case IF A. be bounden to B. by Obligation with Condition for the performance of Covenants although the Covenants Assignment of Bonds to the Queen or some of them be for payment of money yet the assignment of such Bonds to the Queen shall not be received and if it be assigned it shall be put out of the Court For no Bonds shall be assigned ut supra but such which are made for payment of money XLI Mich. 33 Eliz. In the Exchequer A. Lessee for years the remainder to B for years the term of A. came to the Queen and afterwards the Reversion Clark Baron said That the Lease of B. should begin presently and cited the Case 1 Eliz between Wortesly and Adams where a Lease for years is made to A. and afterwards a Lease in Reversion is made to B. for years A. obtains an Estate for life from him in the reversion the Lease of B. shall begin presently But Manwood Chief Baron held that the first Lease was not extinct XLII Mich. 33 Eliz. In the Exchequer Upon Stat. 31 Eliz. of Inmates UPon the Statute 31 Eliz. cap. 7. the Case was this A Woman having a great Messuage viz. a Brewhouse alotted to her for her Dower let the same to another reserving to her self two or three Rooms of it and now an Information was exhibited against the Lessee upon the said Statute Clark Baron A Cottage proprie loquendo is where a poor man inhabits and this being a great Messuage cannot be said a Cottage Inmates are where there are more Families than one Manwood Be it a Messuage or a Cottage for more Families than one makes a Messuage a Cottage as to this Statute Gent. The words of the Statute are There shall not be more Families than one in any Cottage made or to be made and I conceive it ought to be a Cottage accounted in Law before the inhabitations of the Inmates Clark If I grant to you all my Cottages in D. my Messuages shall not pass If I marry my Daughter and she and her Husband inhabit with me in the same house are these Inmates Manwood An Inmate is such an one who is at his own finding and therefore if the Husband and Wife are entertained there at the charge of the Father of the Daughter they are not Inmates And if in our Case any Inmate be the same is the Woman for she hath the lesser part of the Messuage Mich. 33 Eliz. In the Exchequer XLIII Cursons Case 3 Leon 239. Execution of a Statute binds the King. CUrson acknowledged a Statute to Alderman Starkey of London and afterwards he acknowledged another Statute to one Hampden who assigned the same to Fitton who assigned the same to the Queen Starkey sued forth Execution upon his Statute and the Lands of Curson are Extended and he hath a Liberate of it Assignment to the Queen It was agreed by all the Barons if Starkey had Execution upon his Statute before the Queen the Execution shall stand against the Queen and the Queen should not put him out A. recovers Debt in the Kings Bench so as he hath Title to sue Execution by Elegit The Defendant sold his Lands and afterwards A. assigned his Execution to the Queen It was holden that the Queen should not have Prerogative against the Feoffee to have Execution of the whole Land and it was holden by Manwood Chief Baron If Execution be had upon a puisne Statute and that is afterward avoided by an elder Statute and the elder Statute is satisfied by the Execution now the younger Recognizee shall enter without suing forth a new Execution Trin. 26 Eliz. In the Kings Bench. XLIV Clarks Case IN Ejectione firmae The Case was the Master Brothers Leases by Corporations Misnosm and Sisters of the Hospital of the blessed Mariae Virginis by Indenture by the name of the Hospital Beatae Mariae c. leaving out the word Virginis leased the Land It was resolved that notwithstanding the want of the word Virginis that the Lease was good Then it was moved that the words of the Indenture are Haec Indentura inter Magistrum Fratres Sorores Hospital Beatae Mariae c. Testatur that the said Master with the assent of the Brothers and Sisters aforesaid had leased to A. in cujus rei testimonium the said Master with the assent of the Brothers and Sisters aforesaid had put their common Seal Ayliffe and Clench Iustices held that the Lease was void for here the Brothers and Sisters being one entire Body with the Master are not parties to the Indenture but give their consent only And it is not like to the Case where Abbot or Prior makes a Lease for years with the assent of their Covent for the Monks and Friers being dead persons in Law cannot be parties to the Lease but here in the Case at Bar the Brothers and Sisters are persons able in Law And it is not like to the Case of Parson Patron and Ordinary where the Parson with the assent of the Patron and Ordinary grant a Kent-charge for there the Parson is the principal Grantor and the others have not any express interest in the Land charged Gawdy Iustice contrary It is more honourable for Iudges to maintain Leases made by Corporations than for to permit them to avoid the same And he said for law If two Ioyntenants be of Lands and they make the like Indenture viz. Testatur that one of them with the assent of the other deviseth the Land Leases in witness whereof he with the assent of the other hath put his Seal it is a good demise by them both But Clench said that is not like our Case for the two Ioyntenants are distinct persons and the one of them may assent to the other but in our Case the Master Brothers and Sisters are but one person in Law and a Body cannot be distinct so as one can consent to the other
Common Pleas. LII Frice and Fosters Case IN Ejectione firmae the Plaintiff declared upon a Lease made 14 Jan. 30 Eliz. to have from the Feast of Christmas then last before for three years and upon the Evidence the Plaintiff shewed a Lease bearing date the 13 day of January the same year and it was found by Witnesses that the Lease was sealed and delivered upon the Land the 13 day of January Variance Whereupon Puckering and Cowper Serjeants moved on the part of the Defendant that for that variance between the Declaration and the Evidence of the Plaintiff that the Iury might be discharged Evidence good to maintain Issue But Anderson Chief Iustice said that the Evidence was good enough to maintain the Declaration for if the Lease was sealed and delivered the 13 of January it was then a Lease 14 January Quod caeteri Justiciarii concesserunt LIII Mich. 32 Eliz. In the Common Pleas. IN a Quare Impedit against the Bishop of Coventry and Lichfield The Case was that A. seised of an Advowson in Fee Quare Impedit by Executors the Church voided the Bishop collated wrongfully A. dyed Collation it was holden that his Executors might have a Quare Impedit upon that disturbance and that by the equity of the Statute which gave an Action of Trespass to Executors of Goods carried away in the life of the Testator 4 E. 3. cap. 7. and that the Clerk should be removed at the suit of the Executors Mich. 32 Eliz. In the Kings Bench. LIV. Harvey and Thomas Case THe Case was that the Husband seised of Land in the right of his Wife made a Lease of it for years Fine by the Husband where avoids a Lease ê contra 1 Roll. tit Charge in Marg. 389. Plow Quaer 31. 261. ib. plus and afterwards he and his Wife conveyed the Land to a stranger by Fine the Husband died Wray Chief Iustice was of opinion that the Conusee should hold the Land discharged of the Lease Gawdy contrary In case of a Rent granted or a Recognizance acknowledged by the Husband the Conusee of the Fine shall avoid any of them But in this Case the Conusee meddles with the Land it self and an Estate in the Land is conveyed by the Husband which none but the Wife or her Heirs shall avoid and if the Wife after the death of her Husband accept the Rent upon such a Lease by that the Lease is confirmed Mich. 33 Eliz. In the Kings Bench LV. Blaby and Estwicks Case IN Assumpsit It was moved in stay of Iudgment Assumpsit that one of the Defendants was dead after verdict but notwithstanding that Allegation Iudgment was given Attornment for the Court cannot take Notice of it judicially nor any of the Parties hath day in Court to plead it and therefore the Court is not to have regard to such Informations Wray It is not honourable for us upon such surmises which cannot be tryed to delay Iudgment and also the Party is not without remedy for he may have a Writ of Error 33 Eliz. In the Kings Bench. LVI Hore and Briddleworths Case HOre brought Trespass against Briddlesworth Quare clausum Domum suam fregit the Defendant pleaded and put the Plaintiff to a new Assignment i. e. a House called a Stable a Barn and another House called a Carthouse and Garnier And that was assigned for Error for that Assignment is not warranted by the Declaration Gawdy said it was good enough for Domus in the Declaration contains all things contained in the new Assignment but if the Declaration had been of a Close and the new Assignment of a Barn it had not been good Wray Chief Iustice Domus est nomen collectivum and contains many Buildings as Barns Stables c. And such was the Opinion of the Court. Mich 33 Eliz. In the Kings Bench. LVII Mans Case Prohibition MAn was sued before the Commissioners in Ecclesiastical Causes for an Incestuous Marriage viz. for marrying his Wives Sisters Daughter and although it be not expresly within the Levitical degrees yet because more farther degrees are prohibited the Archbishop of Canterbury and other the Commissioners gave Sentence against him Consultation upon which he sued a Prohibition upon the Stat. of 32 H. 8. c. 38. The Prohibition was general where it ought to be special that it be not within the Levitical degrees and therefore a Consultation was granted Trin. 26 Eliz. In the Kings Bench. LVIII Doylies Case Appeals IN an Appeal de Roberie against Doyly It was agreed by the Iustices that the Party robbed shall have an Appeal of Robbery 20 years after the Robbery committed and shall not be bound to bring it within a year and a day as in the Case of an Appeal of Murder Vide contr 22 Ass 97. vide Stamford 62. Trin. 26 Eliz. In the Kings Bench. LIX Ruishbrook and Pusanies Case THe Plaintiff brought Trespass for pulling down his Hurdles in his Close The Defendant justified by reason that one Beddingfield was Lord of the Mannor of D. and that the said Beddingfield and all those whose Estate he had in the said Mannor had had a free course for their sheep in the place where c. And that the Tenant of the said Close could not there erect Hurdles without the leave of the Lord of the Mannor and that the said Beddingfield let to the Defendant the said Mannor and because the Plaintiff erected Hurdles without leave c. in the said Close he cast them down as it was lawful for him to do The Plaintiff replyed of his own wrong without cause c. It was holden by the Iustices to be an ill Plea Traverse for the Plaintiff ought to have traversed the Prescription 19 Eliz. In the Common Pleas. LX. Par Marquess of Northamptons Case PAr Marquess of Northampton took to Wife the Lady Bourchier Heir of the Earl of Essex Leases by a Baron contrary to Act of Parliament void 3 Leon. 71. who levied a Fine of the Lands of the Lady sur Conusans de Droit c. with a Grant and Render to them for Life the remainder to the right Heirs of the body of the said Lady And afterwards by Act of Parliament â—5 H. 8. It was enacted That the said Lady should retain part of her Inheritance and dispose thereof as a Feme sole and that the said Marquess should have the residue and that he might lease the same by himself without the Wife for 21 years or lesser term yielding the ancient Rent being Land which had been usually demised c. The Marquess leased the same for 21 years and afterwards durante termino praedict he let the same Land to another for 21 years to begin after the determination of the former Lease It was moved that the last Lease was void for three Causes 1. Because the Marquess had but for Life and then it cannot be intended that the Statute would enable
should vest in his Heir It was further given in Evidence that the Conusor named the said Cook one of the Conusees and willed that the other three Conusees should release to him Gawdy Iustice held That that by nomination the use did vest in Cook for he said it had been adjudged that where before the Statute of 27 H. 8. One infeoffed divers persons to his use Feoffment to Uses and the Feoffor willed that his Feoffees should make estate to such person as his Son and Heir should name and died the Son and Heir named one of the Feoffees that the same was a good nomination c. Wray and Jefferies to the contrary for after this release Cook is in the whole by the Conusor and not by his Co-Feoffees and by this limitation the Conusor ought to name such a person which ought to take the estate and so cannot one Ioyntenant from his Companion c. And also the words are so that they four shall take the estate 14 Eliz. In the Kings Bench. LXXIII The Bishop of Rochesters Case IN Ejectione firmae the Case upon Evidence was Grant of a Reversion by a Bishop Attornment the Bishop of Rochester 4 E. 6. made a lease for years to B. rendring rent and afterwards granted the Reversion to C. for 99 years rendring the ancient rent Habend from the day of the Lease without impeachment of waste which Grant was confirmed by the Dean and Chapter But B. the Lessee did not attorn and in default of Attornment it was holden by the whole Court that the Lease was void for it is made by way of Grant of the Reversion But by Catlin if the Bishop had granted the Reversion and also demised the Land for 99 years it should pass as a Lease to begin first after the former Lease determined And as to the Attornment it was given in Evidence that B. after the notice of the Grant to C. had speech with C. to have a new Lease from him because he had then in his Lease but 8 years to come but they could not agree upon the price And the Iustices conceived that that was an Attornment because he had admitted the said C to have power to make a new Lease Also the said B. being in company with one R. and seeing the said C. coming towards him said to the said R. See my Landlord meaning the said C. Bromely Solicitor Attornment the same is no Attornment being spoken to a stranger Barham contrary because he was present It was holden by the whole Court that it was a good Attornment But if the Attornment was not before the Bishop was translated to Winchester the Lease should be void and although the confirmation of the Dean Chapter was before the Attornment so as no estate was vested in C yet it was good enough for the assent of the Dean and Chapter is sufficient be it before or after by Catlin Southcoat and Whiddar Iustices but Wray held the contrary Pasc 26 Eliz. In the Kings Bench. LXXIV Russels Case Execution where not good upon a Capias without a Scire Facias RUssel was condemned in an Action of Debt and after the year and day the Plaintiff sued a Capias ad Satisfaciend against him and by force thereof he was taken and committed to the Marshal as in Execution It was the Opinion of the Iustices that it was a void Execution and not only voidable by Error and therefore the Defendant was discharged for it is not any Execution at all and the Plaintiff may have a Scire facias when he pleaseth Pasc 26 Eliz. In the Kings Bench. LXXV Bluet and Cooks Case Action for Words IN an Action upon the Case the Plaintiff declared for scandalous words viz. Lambert is a Thief and Bluèt innuendo the Plaintiff is his Partaker It was the Opinion of the whole Court that the words were not actionable because they were too general for it may be that the Plaintiff is his Partaker in other Matters But if the words had been That Bluet knowing Lambert to be a Thief was his Partaker there the Action would have lain Iudgment was given against the Plaintiff Trin. 33 Eliz. In the Kings Bench. LXXVI Hunt and Gonnels Case Bail. HUnt recovered in Debt against Gonnel and procured against him a Capias ad Satisfaciend upon which Non est inventus is returned Execution but the Writ is not filed Hunt sued a Capias against the Mainpernors who are taken in Execution It was the Opinion of the Iustices that they should avoid this Execution by Error and not by Plea or Surmise c. But if the Capias returned against Gonnel had been filed and after imbezelled Quaere of the Error for the Court conceived that the matter shall be examined but Quaere to what intent Wray said to punish the Deceit but not to maintain the Execution against the Mainpernors Trin. 26 Eliz. In the Kings Bench LXXVII Saer and Blands Case SAer Parson of the Church of D. libelled in the Spiritual Court against Bland for Tythes Bland came to the Kings Bench and shewed that within the said Parish of D. there is a Hamlet in which the said Bland inhabited and the said Inhabitants within the said Hamlet time out of mind had had a Chappel of Ease within the said Hamlet because the said Hamlet was distant from the Church of the said Parish and with part of their Tythes have found a Clark to do Divine Service within the said Chappel and also had paid a certain sum of money to Saer Prohibition Prescription and his Predecessors for all manner of Tythes and prayed a Prohibition and had it and it was holden a good Prescription LXXVIII Pasc 29 Eliz. In the Common Pleas. A Copyholder with licence of the Lord made a Lease for years and afterwards surrendred the Reversion with the rent to the use of a Stranger who is admitted accordingly Attornment It was moved if there needed any Attornment It was the opinion of Rhodes and Windham Iustices that the Surrender and Admittance ut supra are in the nature of an Attornment and so amount to an Attornment or at least supply the want of it Mich. 29 Eliz. In the Star-Chamber LXXIX The Lady Newman and Shyriffes Case THe Lady Newman Sister of James Wingfield 3 Leon. 170. lately deceased exhibited a Bill of Complaint in the Star Chamber against one Shyriffe dwelling in Dublin in Ireland and two others complaining That the said Shyriffe had forged a Deed purporting that the said James had by that Deed given unto him all his Goods and also that the said James had by that Deed assigned to the said Shyriffe a Lease for years of Lands in Ireland and also the said Shyriffe had procured the two other Defendants to depose upon their Oaths before the Town-Clerk of London That the said Deed was Sealed and Delivered by the said James as his Deed. It was moved by the Counsel of the
the Exchequer lend unto another 500 l. of the Queens money and takes a Bond for it in his own name yet the Queen shall have an Accompt against the Borrower Mich. 29 Eliz. In the Exchequer XC Pelhams Case IN the Exchequer Chamber before the Chancellor Treasurer Savile Rep 43. Grant of Office of Sheriff and Barons there in the Case of Pelham the Case was That the Queen had granted by her Letters Patents that Pelham should not be Bailiff Constable nor other Officer or Minister Licet eligatur yet it was holden that the Queen might make him Sheriff for that Grant doth not extend to Officers Royal as Grants of Amercements do not extend to Amercements Royal and also the Office of Sheriff doth not lye in Election but if the words had been Licet eligatur per nos then it should have been otherwise And such was the Opinion of Bromley then Lord Chancellor Trin. 19 Eliz. In the Kings Bench XCI Godbolts Case IN the Case of one Godbolt It was agreed Sales that the sale of a Bailywick of a Hundred was not within the Statute of 5 E. 6. cap. 16. For such an Office doth not concern the Administration of Iustice nor is it an Office of Trust XCII In Temps Eliz. A. Granted to B. a Rent-charge out of his Lands to begin when J. S. died without Issue of his Body J. S. dyes having Issue which Issue dyes without Issue Dyer held that the Grant shall not take effect for J. S. at the time of his death had Issue and therefore from thence the Grant shall not begin and if not then then not at all And Manwood said that if the words had been to begin when J. S. is dead without Issue of his Body then such a Grant shall take effect when the Issue of J. S. dies without Issue c. If Donee in Tail hath Issue which dies without Issue the Formedon in the Reverter shall suppose that the Donee himself died without Issue for there is an Interest Difference between an Interest and a Limitation and there is a diversity between an Interest and a Limitation for if I give Land between A. and B. for term of their lives if any of them dye the Survivor shall hold the whole but if I give Lands to A. for the lives of B. and C. now if B. and C dye the whole Estate is determined because it is but a Limitation and B. and C. have not any Interest Vide to this purpose 34 Eliz. Brudnels Case in Cook 5. p. 9. XCIII Temps Roign Eliz. In the Common Pleas. A. Seized of a Manor leased the same for years rendring rent with clause of re-entry and afterwards levied a Fine Sur Conusans de droit c. to the use of himself and his Heirs the rent being demanded is behind Dyer A. cannot re-enter for although the rent in right passeth without Attornment yet he is without remedy for the same without Attornment and it would be hard without Attornment to re-enter It was here moved further if the Conusor be an Assignee within the Statute of 32 H. 8. Manwood The reversion of a Termor is granted by Fine there wants Privity for an Action of Debt Waste and Re entries But if the Conusee dieth without Heir although that in right it was in the Conusee yet the Lord by Escheat shall make Avowry and yet the Conusee by whom he claims could not And in the Case at Bar the Conusee himself could not but the Conusor being Cestuy que use who is in by Act of Law shall Avow and re-enter without Attornment for the Conusor is in by the Statute of 20 H. 8. Harper The Heir of the Conusee shall Avow and re-enter before Attornment Dyer 13 H. 4. The Father leaseth for years rendring rent with clause of re-entry the Father demands the rent which is not paid the Father dyeth the Son cannot re-enter for the rent doth not belong unto him and therefore in the Case at Bar the Conusor cannot Avow for the rent before Attornment therefore not re-enter And in Case of Bargain and Sale the Bargainee is Assignee within the Statute but not the Conusor in this Case Temps Roign Eliz. XCIV 15 Eliz. Sir Francis Leak and Sir Walter Hollis Upon Attainder of Treason who shall seize the Goods for the Queen AT the Assizes the Opinion of Dyer and Stamford was demanded upon this matter One seized of Lands and Tenements and possessed of Goods within the Duchy of Lancaster was Attainted of High Treason and a great Question arose between Sir Francis Lake Kt. Bailiff of the Duchy and Sir Walter Hollis Sheriff which of them ought to seize for the Queen and their Opinion then was that the same did appertain to the Office of the Sheriff if in the Patent of the Sheriff there were not special words to the contrary XCV 15 Eliz. In the Common Pleas. TEnant at Will made a Lease from year to year Lease by Tenant at Will if a Disseisin Dyer conceived that it was not a Disseisin but the Lease was void and he said that the Book of 12 E. 4. 12. was not Law. For he who disseiseth a man ought to claim Inheritance in the land whereof the disseisin is done Harper conceived that the said Book of 12 E 4. 12. was good Law for a Lease at Will is a Lease at the will of both parties and therefore when the Lessee makes a Lease for years his will is determined and he will not hold at will. Manwood agreed with Dyer for if Tenant at Will lease for years rendring rent before that the Lessee for years entreth the Tenant at Will shall not have any rent for it was not a perfect contract otherwise it is where a man seized of Lands leaseth the same ut supra If one entreth into my land and occupieth the same of his own head claiming to hold the same at my will and afterwards I demand of him a certain rent for the occupation of my land he is now my Tenant at Will which all the Iustices granted Mich. 30 Eliz. In the Kings Bench. XCVI Cutter and Dixwels Case ACtion upon the Case for that the Defendant exhibited a Bill to the Iustices of Peace against the Plaintiff containing and complaining That the Plaintiff is an enemy to all quietness seeking by all means to disquiet his neighbours and hath used himself as a lawless person and having Process to serve upon one in the Parish scil J. S. did keep the Process and would not serve it but on the Sunday in the time of divine Service not having regard to her Majesties laws or the quiet of his neighbors Vpon which Bill the Iustices to whom it was exhibited awarded Process against the Plaintiff to find Sureties for his good behaviour by virtue of which he was taken and imprisoned It was the Opinion of all the Iustices in this Case that upon this Matter an Action upon the Case would not
lie Mich. 27 Eliz. In the Kings Bench. XCVII Baspoles Case THe Father seized of Lands is bound in an Obligation 3 Leon. 118. 2 Leon. 10 1. Stiles 148 Devise to his Son and Heir and devised his Land to his Wife until his Son shall come to the age of 21 years the remainder to the Son in Fee and no other Land descends to the Son from his Father It was moved that the Heir in this case at his Election might wave the Devise and take by descent or è contra Vide 9 E. 4. 18. per Needham It was the Opinion of Gawdy and Fenner Iustices that the Son should be adjudged in by descent Clench held the contrary Mich. 27 Eliz. In the Kings Bench. XCVIII Onions Case IN an Action upon the Statute of 5 Eliz. for hunting in his Park the Statute gives treble damages It was the Opinion of the Iustices that notwithstanding that the Statute gives treble damages Costs that the Plaintiff should have Costs also XCIX Mich. 27 Eliz. In the Kings Bench. IN Debt the Plaintiff had Iudgment to recover and a Scire Facias issued against the Bail before any Capias issued against the Principal Bail. and the Bail was taken and now they came and shewed this matter to the Court and prayed to be discharged Wray Iustice said They shall be put to their writ of Error for being but Error in Process we may reverse our own Iudgment C. Mich. 14 Eliz In the Common Pleas. A Man seized of a Pasture within which are two great Groves and Wood known by the name of a Wood leased the same by Indenture for years and also in the same Pasture were certain Hedgrows and Trees there growing sparsim by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses and further that it shall and may be lawful to the Lessee to cut down and carry away the same at all times during the term Harper said the Hedg-rows did not pass by these words for they are not known by the name of Woods 14 H. 8. 2. Manwood held the contrary Mounson contrary to Manwood for the words of the Grant may be supplied by other in it viz. Woods Dyer held that these Hedgrows should pass for the Grant is general It was further moved if by these words the Lessee might again cut them c. or but once Harper Manwood and Mounson three of the Iustices held That he might cut them but once But Dyer held the contrary said so it should be if the words had been growing upon the Premisses and this word growing although it sounds in the present tense yet it shall be taken also in the future tense if not that the word tunc be laid for that is a word of restraint The case which was argued in the Chancery 27 H. 8. where I was present was this The Prior of St. Johns let a Commandry Provided that if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void And it was doubted if that Proviso did extend to the Successor for this word being in the present tense and yet it was holden by Fitzherbert that it should be taken in the future tense and so to extend to the Successor but otherwise if the words had been nunc being 15 Eliz. In the Common Pleas. CI. Conies Case A Man seized of Lands in Fee devised Devises that his wife should take the profits of his Lands until Mary his daughter and Heir should come to the age of sixteen years and if the said Mary died that J.S. should be his Heir Manwood said Tail. That the daughter after she had attained the age of sixteen years should have the Lands in Tail for Devises shall be construed according to the interest of the Devisor if they have any certainty or reason but no intent shall be taken against reason and certainty It is certain the daughter shall not have Fee-simple for that should have descended to her without any Devise and these words if she dye cannot be intended a condition for it is certain that she shall dye but if the words had been If she dye before the age of sixteen years J. S. should be his Heir that had been a condition and if the words had been That after the death of Mary J. S. should be his Heir So as the Estate Tail remains in the daughter Mounson and Harper contrary And that she shall have but for life Mounson said That if Mary had been a Stranger to the Devisor she had taken nothing Devisee who shall first take And this case was put by Barham Serjeant A man devised 100 l. to his youngest daughter and 100 l. to his middle daughter and 100 l. to his eldest daughter and that all these sums should be levied of the Profits of his Lands It was holden by the better Opinion that the youngest daughter should be first paid and then the middle and then the eldest daughter c. and that he said was Conies Case CII 6 Eliz. In the Common Pleas. A Man made a Lease for life and afterwards made a Lease to another for years to begin after the death of the Tenant for life the Lessee for years died intestate the Ordinary committed Letters of Administration to A. the Tenant for life and A. joyned in the Purchase of the Fee-simple of the Land demised It was holden by the Iustices in this Case that the Fee was executed for one Moiety for the remainder for years Estate executed was not any impediment to the execution of it Manwood conceived that the Term was not extinct for the same is not properly a term Extinguishment but only an Interest of a Term which cannot be surrendred Mounson He hath the Term in auter droit as Administrator and therefore it cannot be extinct Dyer If an Executor hath a Term and purchaseth the Fee-simple the Term is determined A woman Termor for years takes Husband who purchaseth the Fee the Term is extinct by Manwood for the Husband hath done an act which destroys the Term scil the Purchase But if a woman being a Termor marrieth with him in the Remainder the Term continueth for here it is not the act of the Husband but the act of Law. It was the Opinion of Dyer Tenants in Common that in this case the Tenant for Life and the Administrators should be Tenants in Common of the Fee. CIII Mich. 17 Eliz. In the Common Pleas. THe husband is seized in right of his wife of certain customary lands in Fee and he and his wife by licence of the Lord make a Lease for years by Indenture rendring rent have Issue two daughters and the husband dyeth the wife takes another husband and they have Issue a son and a daughter the husband and wife dye the son is admitted to the Reversion and dyeth without Issue and by Manwood
that Reversion shall descend to all the daughters notwithstanding the half blood for the Estate for years which is made by Indenture by license of the Lord is a demise and a Lease according to the order of the Common Law and according to the nature of the demise the Possession shall be adjudged which possession cannot be said possession of the Copyholder for his possession is customary and the other is meer contrary therefore the possession of the one shall not be the possession of the other therefore there shall be no Possessio Fratris in this case Possesso Fratris But if one had been the Guardian by custom or the Lease had been made by Surrender there the Sister of the half blood should not inherit And Mead said the Case of the Guardian had been adjudged Mounson agreed And it was said that if a Copyhold doth descend to the Son he is not a Copyholder before admittance but he may take the profits and punish a Trespass before admittance CIV Pasc 19 Eliz. In the Common Pleas. A Parson let his Rectory for three years and covenanted that the Lessee shall have and enjoy it during the said term without expulsion or any thing done or to be done by the Lessor and is also bound in an Obligation to the Lessee to perform the said Covenant Forfeiture Quaere Afterwards for not reading of the Articles he was deprived ipso facto by the Statute of 13 Eliz. The Patron presented another who being inducted ousted the Lessee wherefore an Action was brought upon the Obligation It was the Opinion of all the Iustices That this matter is not any cause of Action for the Lessee was not ousted by any Act done by the Lessor but rather for Non feasans and so out of the compass of the Covenant aforesaid as if a man be bound that he shall not do any waste permissive waste is not within the danger of it Pasc 26 Eliz. In the Common Pleas. CV King and Cottons Case IN Ejectione firmae the Case was Lessee for years the Remainder for life the Remainder in Tail to Lessee for years Lessee for years made a Feoffment in Fee with warranty and dyed he in the Remainder for life dyed the Issue in Tail entred and made a Lease to the Plaintiff It was clearly resolved by the Court in this Case Entre Congeable That the entry of the Issue in Tail was lawful notwithstanding that the disseisin was done to another Estate than that which was to be bound by the warranty scil to the Estate for life Vide 50 E. 3. 12 13 46 E. 3. 6. Fitz. Garr 28. Pasc 26 Eliz. In the Common Pleas. CVI. Scot and Scots Case BArtholomew Scot brought a Writ of Accompt against Thomas Scot Accompt Thomas Scot sum ' fuit ad respondend Barth Scot quod reddat ei rationabilem computum suum de tempore quo fuit receptor denariorum c. And declared quod cum the said Thomas Scot fuit receptor denariorum c. recepisset so much by the hands of such a one c. Cumque idem Thomas habuisset recepiâ—â—et diversa bona and shewed what ad merchandizand c. Exception was taken to the Declaration because the Writ and Declaration is general against the Defendant as Receiver whereas for such goods as the Defendant had received ad merchandizand he ought to have been charged as Bayliff Quod Curia concessit Vide Book Entries 19. 46 E. 3. 9. and afterwards the Defendant traversed severally both the Charges whereupon several Issues were joyned and both found for the Plaintiff And as to the monies with the Receipt of which he was charged as Receiver the Plaintiff had Iudgment and as to the others Abatement of Writ which he received ad Merchandizandum the Writ abated And it was said by the Court That the Writ should have abated in the whole unless the several Issues had helped the matter because the Plaintiff might have had an Action for part in other manner Vide 9 H. 7. 4. by Brian 17 Eliz. In the Star-Chamber CVII Morgan and Coxes Case MOrgan exhibited a Bill of Perjury in the Star-Chamber against one Cox setting forth that whereas he was bound to his good behaviour by Recognizance acknowledged in the Kings bench and he in discharge of the said Recognizance had obtained a Writ De Fama gestu to enquire of his Conversation and therefore at the Sessions in the County of Devon where the said Morgan was dwelling the grand Iury charged with the said Matter the said Cox gave Evidence to the said grand Iury in maintenance and continuance of the said Recognizance and upon the Evidence given by Cox the said Bill was conceived It was moved by the Counsel of the Defendant That that Bill upon the matter did not lye for that the Evidence in the Bill for the Perjury was given for the Queen in maintenance of the Recognizance and that to the grand Iury which was charged for the Queen But as to that it was said by the Lord Chancellor and both the Chief Iustices that the Writ De fama gestu Brief de Fama gestu is an especial Writ at the Suit of the Party and not of the Queen and the Court cannot deny it to him who asketh it and the grand Iury as to that matter shall be accounted a special Iury c. Mich. 16 Eliz In the Common Pleas. CVIII Jackson and Darcys Case Tail barred by a Fine 3 Leon. 57. IN a Writ of Partition betwixt Jackson and Darcy the Case was Tenant in Tail the Remainder to the King levied a Fine had Issue and dyed it was adjudged that the Issue was barred and yet the Remainder to the Queen was not discontinued for by the Fine an Estate in Fee-simple determinable upon the Estate in Tail passed to the Conusee Trin. 17 Eliz. In the Common Pleas. CIX Stroads Case Tenures IN a Replevin the Case was Lands holden of a Subject came to the possession of the King by the Statute of 1 E. 6. of Chauntries The King granted the Lands over unto another it was holden in this Case that the Patentee should hold of the King according to his Patent and not of the ancient Lord but the Patentee should pay the rent by which the said Land was before holden as a Rent-seck distrainable of Common right to the Lord and his Heirs of whom the Land was before holden CX Mich. 19 Eliz. In the Common Pleas. A. Seized of Lands in Fee devised them to his Wife for life and after her decease Estate she to give the same to whom she will He had Issue two daughters and died Devises Leon. 121â— the wife granted the Reversion to a Stranger and committed waste and the two daughters brought an Action of waste In this Case it was holden that by that Devise the wife had but an Estate for life but she had also an authority
of giving the Reversion by her Will to whom she pleased and such a Grantee shall be in by A. and his Will for A. hath given expresly to his wife for life and therefore by Implication she shall not have any further Estate But if an express Estate had not been appointed to the wife by the other words an Estate in Fee should have passed Mich. 19 Eliz. In the Common Pleas. CXI Sir Thomas Kemp and Windsors Case SIr Thomas Kemp was outlawed at the Suit of one Windsor who had against him four Capias utlagat ' and none of them were served and afterwards he sued out a fifth Capias It was moved by Mead that the said Sir Thomas keepeth open House and yet the Sheriff had not served the Capias Dyer The Sheriff may justifie to break the House to take his body and seize his Goods for the Queen for this Process is in Law at the Suit of the Queen but contrary where the Process is sued at the Suit of a Subject And the Iustices commanded Ford Prothonotary to make a special Capias for Body and Goods and a pain in the Writ of 100 l. upon the Sheriff to execute the Writ accordingly CXII Mich. 19 Eliz. In the Common Pleas. THis Case was moved by Anderson Serjeant at Law Improvement of Common if in case of Common appurtenant by Prescription without number the Lord of the waste might improve for it is not admeasurable therefore not improveable for the Common being without number the sufficiency cannot be proved Dyer and Manwood Iustices although it be without number yet it may be reduced to a certainty being by Prescription as the number of the Cattel and the best and most substantial Tenant of the said Tenement at any time within time of memory had kept upon the said waste and then the Plaintiff the Lord might improve leaving sufficient according to such Rate Mich. 19 Eliz. In the Common Pleas. CXIII The Earl of Derbys Case Debt not against the Husband upon a Contract by the Wife DEbt by a Merchant of London against the Earl of Derby and his Wife and declared upon a Contract for Silks and it appeared upon the Evidence that the Countess during the Coverture had bought of the Plaintiff certain Silks for her own wearing and for the mony which the Countess agreed to pay for the same the Action was brought It was the Opinion of Dyer Manwood and Mounion that the contract by the Wife during the Coverture should not bind the Husband but admit that the Husband should be bound yet this Action is not well brought against the Wife for she ought not to be mentioned in the Writ CXIV Mich. 19 Eliz. In the Kings Bench. Indictments ONe was indicted in the Country because he commanded J.S. to take up a Bridge being in Regia via leading from such a Town to such a Town and also the said J. S. was indicted for executing the command of the other Exception was taken to the first Indictment because no place of the commandment is alledged in the Indictment and for that cause the Indictment was taken insufficient although Mr. Plowden strongly insisted upon the contrary as in Trespass the Defendant justifies by the commandment of J. S. the same is good without any place of the commandment for in the first Case the commandment is traversable but contrary put by Mr. Plowden Vide 3 H. 7. 11. Markenfields Case Another Exception was taken to the Indictment because it is not there alledged that the Bridge was a common Bridge but because there was other words in the Indictment which supplyed the same scil in via Regia the Indictment was holden good enough CXV 19 Eliz. In the Common Pleas. IN a writ of Partition between Tenants in common upon the Statute of 20 Acres of Land the Defendant as to part scil 10 Acres pleaded Non tenet pro indiviso and as to the residue confessed the Partition and by Manwood and Ford chief Prothonotary the confession ought to be in the beginning of the Plea and Non tenet pro indiviso in the second place last so as that part of the Plea which agrees with the Demand ought to preceed the part which denies demand And the truth of the Case was that the Defendant had but 10 Acres in all and of them was sole seized Manwood If your Case be such you may safely plead to the whole Non tenet pro indiviso 20 Eliz. In the Common Pleas. CXVI Duffams Case A Man made a Lease by Deed indented for 20 years to begin after the expiration of a former Lease thereof made to one Duffam in an Action brought by the second Lessee against the Lessor the Lessor said there was no such Duffam in rerum natura at the time of the supposed Lease made to Duffam It was said that such a Plea did not lye for the Lessor Estoppel for he is estopped to say against the Indenture that no such Duffam was c. And also if no such person was then the first Lease was void and the second Lease should begin presently which Mounson and Manwood concesserunt And Manwood said that the Defendant should be estopped by the recital of the first Lease to say that no such Duffam was and although that the common ground is that a recital is not any estoppel yet where the recital is not material as it is here for the second Lease is to be begun upon the expiration of the Lease recited there is an estoppel Recital Trin. 29 Eliz. In the Common Pleas. CXVII Brown and Fulsbyes Case UPon the Statute of 5 Eliz. of Vsury the Case was this Stat. 5 Eliz. of Usury A. borrowed of B. 80 l. and was bound in an Obligation to pay to him 90 l. at the end of the year It was the Opinion of the Iustices that although the 90 l. was tendred and B. the Lender did tell the same yet if he take and except but of 80 l. it is not Vsury within the Statute to make a treble forfeiture but yet in that Case the Obligation it self is void CXVIII Trin. 29 Eliz. In the Exchequer NOte in the Case of the Tenants of Owning and Northmaston It was holden by Manwood Chief Baron That he who hath vesturam terrae cannot dig the Land. And Gent Baron said where many have Lot-Meadow to be divided every year by lot who shall have the Grass of such an Acre and who of such an Acre c. and so change every year according to Lots they have not any Freehold therein but only Vesturam terrae Trin. 32 Eliz. In the Exchequer CXIX Sir Walter Wallers Case 3 Leon. 259. Execution a Leon. 77. IN the Case of Sir Walter Waller it was moved if one hath Iudgment in Debt and thereupon within the year and day sueth a Capias ad satisfaciend although he doth not prosecute the same in two or three years yet when he pleaseth he may proceed
where the Suit is Tam pro Domina Regina quam pro seipso CXXII Trin. 32 Eliz. In the Exchequer Debt IF Rent-corn be reserved upon a Lease for years and it is behind for two or three years the Lessor may have Debt for the Corn and shall declare of so much Corn and it shall be in the Detinet but yet he shall not have Iudgment to have Corn but so much mony as the Corn was worth every several year being accompted Clark Baron doubted if he shall recover the price of the Corn as it was at the time when it was payable or it was at the time of the Action brought Manwood The Law is clear that the Lessee shall pay according to the price it was at the time of the payment and delivery limited by the Lease Clark said A is bound to pay and deliver to the Obligee 10 Bushels of Wheat and no place is appointed where the payment shall be made the Obligor is not bound to seek the Obligee in what place soever as it is in Case of payment of mony for that the importableness therefore shall excuse him which Manwood granted CXXIII Trin. 27 Eliz. In the Exchequer NOte It was holden by the Barons Fine for Alienation without Licence that for Fines for Alienation without licence not only the Land aliened but the other Lands of the Alienor shall be chargeable Mich. 30 Eliz. In the Exchequer CXXIV Prowses Case IT was holden in the Case of one Prowse by Egerton Solicitor Tythes upon the Statute of 31 H. 8. where an Abbot had a Rectory impropriate and also Land within the same Parish c. and so paid no Tythes because he could not pay them to himself and for no other cause was discharged and after the Dissolution the Rectory is granted to one and the Land to another that in such Case the King nor his Patentees should not be discharged of Tythes for the Lands were not discharged in Right but if the Lands in the hands of the Abbot were discharged in Right as by composition or lawful means there the King and his Patentee should be discharged from payment of Tythes And it was said by Burliegh Lord Treasurer that if the Composition or Custom was that the Abbot and his Successors should be discharged without extending to Farmors or Lessees if the Abbot made a Lease and the Lessee paid Tythes as he ought and after the Reversion cometh to the King the Lessee should pay Tythes during his Lease but after the Lease determined the King and his Patentee should not pay but should be discharged by the said Statute and said the like matter was in the Chancery Trin. 30 Eliz. The Abbot of Tewkesbury having the Rectory impropriate of Tewkesbury 11 H. 7. purchased Lands within the said Parish to him and his Successors Unity no discharge of Tythes after the dissolution the King granted to G. the Rectory and to W. the Lands and if W. should pay Tythes was referred to Manwood and Periam who gave their Resolution that Tythes were payable Trin. 30 Eliz. In the Kings Bench. CXXV Ropers Case ROper was robbed by Smith and within a week after the Robbery he preferred an Indictment against him and within a month after the Robbery he sued an Appeal against Smith and prosecuted it until he was out-lawed and thereupon Cook moved to have Restitution and they of the Crown Office said that the Fresh-suit was not enquired for upon an Appeal one shall not have Restitution without Fresh-suit Restitution Cook The Books are if the Defendant in the Appeal of Robbery be attainted by Verdict Fresh Suit. the Fresh-suit shall be enquired of But here he was attainted by Outlary and not by Verdict and so the Fresh-suit could not be enquired of and here the Indictment is within a week and the Appeal within a month after the Robbery is a Fresh-suit Wray Chief Iustice In our Law he is to pursue the Felon from Town to Town but the suing of the Appeal is no Fresh-suit vide 21 F. 4.16 Restitution grounded upon Outlawry and Appeal of Robbery without Fresh-suit enquired of 1 H. 4. 5. if he confess the Felony and so is 2 R. 3. 13. Trin. 30 Eliz. In the Kings Bench. CXXVI Piers and Leversuches Case IN Ejectione firmae by Piers against Leversuch It was found by Verdict that one Robert Leversuch Grandfather of the Defendant was Tenant in Tail of the Land whereof c. and made Lease for years to Purn who assigned it over to Piers the Plaintiffs Father Robert Leversuch died W. his Son entred upon Piers who re-entred W. demised the Lands without other words to P. for life the remainder to Joan his wife for life the remainder to the Son of P. for life with warranty and made a Letter of Attorney to re-enter and deliver seisin accordingly P. died before that the Livery was executed and afterwards the Attorney made Livery to Joan W. died Edward his Son and Heir entred upon his Wife she re-entred and let the Land to the Plaintiff who upon an Ouster brought the Action Heal Serjeant When P. entred upon W. Leversuch the Issue in Tail he was a Disseisor and by his death the Land descending to his Heir the entry was taken away of W. Leversuch Cook contrary P. by his entry was not a Disseisor but at the Election of W. for when P. accepted such a Deed of W. it appeared that his intent was not to enter as a Disseisor and it is not found that the said P. had any Son and Heir at the time of his death and if not then no descent and there is not any disseisin found that P. expulit Leversuch out of the Land and Iudgment was given against the Plaintiff And Cook cited a Case which was adjudged in the Common Pleas it was Skipwiths Case Grandfather Tenant in Tail Father and Son the Grandfather died the Father entred and paid the rent to the Lessor and died in possession and it was adjudged the same was not any descent for the paying of the rent explained by what title he entred and so shall not be a Disseisor but at the Election of another Trin. 33 Eliz. In the Kings Bench. CXXVII Penhalls Case PEnhall was indicted upon the Statute of 5 E. 6. for drawing his Dagger in the Church against J. S. without saying that he drew it with intent to strike the Party and for that cause the Indictment was holden void as to the Statute It was moved if it should not bee a good Indictment for the Assault so as he should be fined for the same By Sands Clerk of the Crown and the whole Court the Indictment is void in all for the conclusion of the Indictment is contra formam Statuti and then the Iury cannot enquire at the Common Law. Trin. 33 Eliz. In the Kings Bench. CXXVIII Weshbourns Case WEshbourn and Brown were Indicted upon the Statute of 8 H. 6. and exception was
Assumpsit MEgot brought an Action upon the Case against Broughton and Davy upon Assumpsit and it was found by Nisi Prius for the Plaintiff and afterwards before the day in Bank Broughton dyed and after Iudgment given Davy the other Defendant brought a Writ of Error in the said Court scil in the Kings Bench where Iudgment was given and assigned an Error in fact scil the death of Broughton depending the Writ vide 2 R. 3. 21. and this Case is not like to Trespass for Trespass done by many are several Trespasses but every Assumpsit is joynt If the Court may reverse their own Judgment and if the Court upon this matter might reverse their own Iudgment was the Question the Case was not resolved but adjourned CLII. Trin. 31 Eliz. In the Common Pleas. IT was found by Office that J. S. held by the Queen and dyed without Heir whereas in truth he had an Heir scil A. S. who leased the Lands for an hundred years and afterwards traversed the Office Office trove and had an Ouster le mayne le Roy. Now the matter was moved in the Common Pleas by Fenner in behalf of the Sheriffs of London before whom the matter depended to whom it was said by Anderson Chief Iustice Conveyance by the Heir upon Entrusion That where the King is entituled by an Office to a Chattel as to a wardship c. there if the Heir without any intrusion bargain and sell levy a Fine or lease for years during the possession of the King it is void against the King but shall bind the Heir but where the King is intituled to the Fee-simple as in this Case such a Conveyance is meerly void Hil. 31 Eliz. In the Kings Bench. CLIII Samuel Starkeys Case HOmine replegiando by Samuel Starkey to the Sheriffs of London Who returned that the said Starkey was indicted to be de mala fama deceptione Domini Regis with divers other general words and namely that he had deceived J. S. a Clothier and that he was a common Cozener and thereof being found guilty Iudgment was given by the Mayor and Recorder That he should be disfranchized of his Freedom and should be fined and imprisoned for a year and further said that he had not paid his Fine nor the year expired Cook Such Return hath not been seen and it is directly against the Statute of Magna Charta Wray Chief Iustice gave a Rule that the Sheriffs should make their Return at their perils before such a day Hil. 31 Eliz. In the Kings Bench. CLIV. Bushy and Milfeilds Case IN Error brought by Bushy and Milfeild It was assigned for Error that where in the first Action the Iury gave four pence Costs and the Court gave de incremento three and twenty shillings that in the Iudgment the four pence was omitted Error It was the Opinion of the Court That for that Cause the Iudgment should be reversed although it be for the advantage of the Party so where the Iudgment is quod sit in misericordia where it ought to be Capiatur Hil. 29 Eliz. In the Common Pleas. CLV Bingham and Squires Case BIngham brought Debt upon an Obligation against Squire Obligation 3 Leon. 151. The Condition was If Squire did procure a Grant of the next Avoidance of the Archdeaconry of Stafford to be made to the said Bingham so as the said Bingham at the said next Avoidance may present that then c. The Case was That afterwards by the means and endeavour of Squire the Grant of the next Avoidance was made to Bingham but before the next Avoidance the present Archdeacon was created a Bishop so as the presentment of that Avoidance belonged to the Queen It was adjudged in this Case that the Condition was not performed and that by reason of these words scil So that Bingham may present And afterwards Iudgment was given that the Plaintiff should recover Hil. 26 Eliz. In the Common Pleas. CLVI Mansors Case A. Man bound himself in an Obligation to make an Assurance of Lands the first day of Jan. and the last day of December he to whom the Assurance was to be made scil the Obligee the said last day before Sun-setting came to the Obligor with a Deed ready to be sealed and prayed him to seal it who said to him that he was a man unlearned and said he would shew the same to his Counsel and then he would seal it And if the Obligation was forfeited or not because he did not seal it presently was the question And Fenner argued that it was not for when a thing is to be done upon request then he who makes the request ought to give sufficient and convenient time to perform the Condition I agree That where the Condition is absolute there if the Condition be not performed he shall not be excused by the default of another As if a man be bounden to marry A.S. and she will not marry him or to enfeoff J. S. and he refuseth as 3 H. 6. is the Obligation is forfeited Yet in these Cases if the Obligee himself be the cause that J. S. will not take the Feoffment or he will not marry A. S. the Obligation is not forfeited So in our Case for by his late request it is impossible for me to perform the condition for before my Counsel shall have perused it the time will be past If a man be bound to enfeoff one of Lands in Barwick request ought to be made so long time before that after that he may go to Barwick So if one be bounden to pay 1000 l. to J.S. he ought to make his Tender so long time before the last instant of the last day that the mony may conveniently be told This Case was in question A man made a Feoffment of the Manor of D. with the Appurtenances to which an Advowson was appendant and covenanted that the Manor upon request should be discharged of all manner of Incumbrances and before that the Feoffor had granted the next Avoidance to J. S. the Incumbent died the Clark of the Grantee was instituted and inducted the Feoffee requested the Feoffor to discharge the Incumbrance The opinion of many Sages of the Law was that he had not made his request within convenient time So if a man be bounden to infeoff the Obligee to have and to hold to him and his Heirs as long as J. S. shall have Issue of his Body If the Obligee demand Assurance after the death of J. S. without Issue yet the Obligation is not forfeited In 22 E. 4. if Lessee for the life of another continues possession for two or three weeks after the death of Cestuy que use where he could not have more speedy notice of his death he shall not be a Trespassor In 15 Eliz it was holden in Wottons Case That where he was bound to make a Feoffment to J. B. and J. B. came to him in Westminster Hall and tendred to him a Writing
L. the King Lord Mesne and Tenant the Mesnalty is holden in chief and the Tenancy by Knights Service the Manor escheats by Attainder If the Tenancy should be holden in Chief was the question Manwood It hath been holden that no Tenure in Capite may be if not by the creation of the King And he said that if before the Statute of Westminster 3. the Kings Tenant in Capite had made a Feoffment to hold of him so as now there is Lord Mesne and Tenant and afterwards the Mesnalty came to the Crown by Attainder c. If by the coming of the Mesnalty to the Crown the Seignory Paramount be extinct then the Tenancy is not holden in Capite but they have taken a difference where the Mesnalty comes to the Seignory and where the Seignory comes to the Mesnalty But he said it was a good Case 29 Eliz. In the Exchequer CLXX Pigotts Case Assignment of Debts to the King. PIgott Collector of the Subsidy granted by Parliament holden 28 Eliz. and by reason thereof endebted to the Queen one B. being indebted to him assigned the said debt to the Queen for parcel of her debt upon which Process issued out against B. and now at the return of the Process Cooper Serjeant moved in the behalf of B. that the Assignment was not good 1. There was no such Parliament holden 28 Eliz. 2. No assignment of Debt to the Queen is effectual where the Goods and Lands of the Queens debtor are sufficient but here constat de claro that Pigott is sufficient As to the matter of the Parliament the truth is that the Parliament was begun in October 28. But no Session was then holden but it was adjourned to Newbury 29 Eliz. But if a Session had been holden one ought to say it was Prorogued Fenner There is not any Authority in our Law for such assignments of Debt to the Queen Manwood The Parliament is October 28 Eliz. and so is the Roll and the Record of the Parliament The Writs of Parliament were returned in October 28 Eliz. But then the Queen adjourned the Parliament for there was no Session and although it was adjourned yet the first day of the Parliament was in October And such was the Opinion of all the Iustices 29 Eliz. In the Exchequer CLXXI. The Queen and Paynes Case AN Information was exhibited against Payne Treasurer of the Records in the Kings Bench Priviledge upon the Statute made against the buying of Cattle and he came and demanded Priviledge Manwood It hath never been seen that such Priviledge hath been granted against the Queen Vide 21 H. 6.22 in a Decies tantum by the better Opinion the Party shall have the Priviledge Some said that this is not like to the Case where the Queen only is Party for in such Case Attaint doth not lye against the Iury which have found for the Queen contrary where the Suit is tam pro Domina Regina quam c. Manwood The Law is not so for an Attaint lyeth where the Queen alone is Party Tanfield who was of Counsel with Payne shewed to the Court a President 29 Eliz. where one tam pro Domina Regina quam c. prosecuted a Suit in the City of Oxford upon a penal Statute and the Defendant claimed the Priviledge of the Common Pleas being an Officer there and by the Award of the Court the Priviledge was allowed him Manwood The Suit upon the penal Statute was in an Inferiour Court. But shew to us a President where the Courts are equal CLXXII Mich. 30 Eliz. In the Common Pleas. A Poor man was ready at the Bar to wage his Law and upon examination it was found that the Defendant was indebted to the Plaintiff ten pounds to be paid at the Feast of Christmas and that upon communication between them it was agreed that the Defendant should pay to the Plaintiff at the said Feast 5 l. in satisfaction of all the Debt due to the Plaintiff and as to the other 5 l. that he should be acquitted of it Vpon this matter the Iustices were clear of Opinion that the Defendant ought not to be admitted to wage his Law for notwithstanding that bare communication the whole Debt remained due not extinguished by the communication for 5 l. cannot be a satisfaction for 10 l. but contrary of a collateral thing in recompence of it c. And satisfaction and agreement to pay 5 l. before the said Feast of Christmas in satisfaction of the whole 10 l. Vpon such matter shewed the Court was of opinion that the Defendant might be admitted to wage his Law. CLXXIII Mich. 30 Eliz. In the Common Pleas. IN a Replevin the Defendant avowed for damage feasant Vpon which Issue was joyned and found for the Advowant and Damages assessed and a Retorno Habendo issued upon which the Sheriff returned Elongata upon which a Withernam was awarded And now the Plaintiff came into Court and tendred in Court the Damages assessed by the Iury Withernam and prayed a stay of the Withernam and cast the mony into Court. But the whole Court was clear of Opinion for the stay of the Withernam upon that matter only because in this Case the Plaintiff ought to be fined Fine for Contempt because he had essoigned his Cattel which is a contempt wherefore the Court assessed a Fine upon him of 3 s. 4 d. and then the Plaintiff had his prayer and request Mich. 37 Eliz. In the Common Pleas. CLXXIV Germies Case 2 Leon. 119. 1 Leon. 87. Assets IN Debt upon an Obligation against A. as Executor the Case was That the Testator of A. by his Will appointed certain Lands and named which should be sold by his Executors and that the mony thereof arising should be distributed amongst his Daughters when they had accomplished the age of one and twenty years the Lands are sold accordingly and if the monies thereof coming being in the hands of the Executor should be Assets to pay the Debts of the Testator was the question It was the clear Opinion of the whole Court that it was not Assets for that that mony is limited to a special use CLXXV Mich. 29 Eliz. In the Common Pleas. Alien Purchaser THis Case was moved to the Court An Alien purchased Lands in Fee the Queen confirmed them to the Alien c. Office is found if the Confirmation should bind the Queen was the Question Some conceived it should For by Anderson Chief Iustice when an Alien is enfeoffed he takes by the Livery the Fee-simple of which he shall be seized until Office found and a Praecipe quod reddat lyeth against him Fenner An Alien and Denizen Ioyntenants are disseized they shall both joyn in an Assize vide 11 H. 4.26 And he said that the wife of the King takes a Husband being an Inheretrix they have Issue Office is found the Husband shall be Tenant by the Courtesie which see 33 E. 3. Fitz. Traverse 36. It was argued
on the other side That the Estate of the Alien is so weak that a confirmation cannot enure upon it for an Alien cannot take but to the use of the King and cannot be infeoffed to anothers use and if he be such use is void For there is not a sufficient seisin in an Alien to carry an use And it hath been adjudged on Forset Case Where an Alien and the said Forset were Ioynt-Purchasers and the Alien dyed that Forset should not have the whole by Survivour but that upon Office found the Queen should have the moiety Vide 11 Eliz. Dyer 283. Mich. 30 Eliz. In the Common Pleas. CLXXVI Jermine and Arscots Case THe Case between Jermine and Arscot was this A seized of Lands in Fee had Issue six Sons and one Daughter and devised the Manor of c. parcel of his said Lands to J. S. for ninety years if the said J. S. and G. his Wife or any of them should so long live the remainder to P. his eldest Son and the Heirs males of his Body the remainder to his other Sons in tail the remainder to his Daughter Provided That if the said P. his Son or any of the Sons of the Devisor or any of the heirs males of their bodies should endeavour by any Act or Thing to alien bargain or discontinue c. that then after such attempt or endeavour and before such Bargain and Sale c. were executed that the estate of such Person attempting should cease as if he were naturally dead and that then the premises should remain and come to such person to whom the same ought to come remain or be by the intent and meaning of his Will and died P. levied a Fine of the Manor he in the next remainder entred and claimed the Land by force of the Devise This Case was this Term argued by Walmesly Serjeant that an Estate tail cannot cease for it is an Estate of Inheritance and here is not any limitation for the Estate tail by the meaning of the Devisor shall remain revivable upon the death of the Offender but a Limitation determines the Estate utterly which is not here but here it appeareth as well by the meaning of the Devisor as by the words of the Devise that the Estate tail upon such act should be suspended and it cannot be resembled to the Case cited on the other side 22 E. 3. A Rent granted to one in Fee and that it shall cease during the Nonage of every Heir the Rent is but suspended between the Parties and Privies to the Gift as in the Case of Littleton of Re-entry and Retainer quousque but that a Stranger should re-enter and retain quousque that cannot be And in the Case of Scholastica reported by Plowden the Estate tail by such Offence is determined by the limitation But in our Case by the meaning of the Devisor only suspended so our Case is not like to that Case Shuttleworth to the contrary The purpose of the Devisor appeareth to be the continuance of the Land in the name and Family of the Caries and as to the difference of ceasing and suspending of an Estate tail the same is not to the purpose for the Tenant in tail himself may suspend his Estate tail therefore à fortiori the Donor upon the Creation of the Estate tail As by Littleton Tenant in Tail grants totum statum suum the Estate tail is thereby suspended and by Anderson if in such a Case after such a grant Tenant in tail levy a Fine in our Case If Tenant in tail offend and the party to whom the next interest is limited enters and after the Offender levies a Fine to a Stranger there although his Estate was determined by the offence yet the Estate tail is bound by the Fine Ad quod caeteri Justiciarii murmurabant Tenant in tail hath Issue two Sons the eldest in the life of his Father levieth a Fine and after the Father dieth the Estate tail is bound contrary if the Father had survived his eldest Son And afterwards in the end of this Term Iudgment was given against the Plaintiff for by the Will here is a good limitation and an estate to cease upon an act and upon another contingent to be revived is good enough Vide 30 E. 3. 7. A Lease for life rendring rent and if the rent he behind that the Lessor shall return quousque agreement be made so as a Freehold may cease and rise again according as the same is limited And all this was agreed by Rhodes Periam and Windham and afterwards Walmsley for the Plaintiff took an Exception to the Bar for that the Defendant pleaded Quod Petrus Cary tempore levationis finis praedict non habet exitum and doth not say that tempore quo ipse Henricus clamabat reversionem praedict the said Peter had not Issue for he said if Peter had Issue when Henry claimed the Reversion nothing had vested on him by the said claim But all the Court besides Anderson said that needed not be but if the matter had been such the same should come on the part of the Plaintiff Also they said That the Estate was vested in Henry without claim and although after the Offence committed and before claim Peter have Issue yet Henry should retain the Land during the life of the Offender against such Issue born after the Fine levied for by the Fine levied the Reversion vested in Henry without any claim by force of the said limitation CLXXVII Mich. 30 Eliz. In the Common Pleas. Alien suffers a common Recovery 9 Co. 141. LAnd was given to an Alien in tail the Remainder over to another in Fee the Alien suffered a common Recovery and died without Issue All this matter was found by Office. It was moved That this Office should have return so as upon the matter the Alien was not Tenant of the Land at the time of the Recovery suffered But the whole Court held the contrary and that the Recovery was good and should bind him in the Remainder Mich. 30 Eliz. In the Common Pleas. CLXXVIII Seixtbark and Percies Case EJectione firmae of Lands in Knolton and Woodland the Parties were at Issue and the Venire facias was of Knolton only and it was found for the Plaintiff It was shewed in stay of Iudgment that the Venire facias was not well awarded for it ought to have been De vicineto de Knolton Woodland which was granted by the Court And that that defect was not relieved by any Statute for it is a Mis-trial and for that cause Iudgment was stayed and a Venire facias de novo granted 30 Eliz. In the Common Pleas. CLXXIX The Provost of Queens Colledge in Oxfords Case THe Provost Fellows and Scholars of Queens Colledge in Oxford are Guardians of the Hospital and Meason de Dieu in Southampton and they make a Lease of Lands parcel of the Possession of the said Hospital to one Hagel for term of years by the name of
or his Servant had put the Horse to grass and afterward the Horse is stollen there an Action upon the Case doth lye Trin. 29 Eliz. In the Common Pleas. CXCVII Neals Case IN a false Imprisonment by Neal against the Mayor Sheriffs Citizens and Commonalty of the City of Norwich the Original Writ was directed to the Coroners of the said City And Exception was taken to the Writ because it was not directed to the Sheriffs of the said City but to the Coroners Sed non allocatur for the Sheriffs are parcel of the Corporation as it is to see by the name by which they of Norwich are incorporated And also it hath been adjudged That a Sheriff cannot summon himself and therefore by the Award of the Court the Writ was allowed to be good Trin. 29 Eliz. In the Common Pleas. CXCVIII. Sir John Bromes Case SIr John Brome 33 H. 8. acknowledged a Fine of certain Lands the Kings Silver was entred and the Conusans taken but the Fine was never engrossed and now he who claimed under the Fine came in Court and prayed that the Fine might be engrossed and the Court examined them upon their Oaths to what use the Fine was levied and in the Seisin and Possession of what persons the Lands whereof the Fine was levied had been after the Fine Vpon which Examination it appeared fully to the Court that the Party to whom the Fine was levied was seized after the Fine and suffered a Common Recovery of the Land and that the said Land had been enjoyed according to the said Fine at all such times since c. Whereupon the Court commanded that the Fine be ingrossed Vide Acc. 8 Eliz. Dyer 254. Trin. 29 Eliz. In the Exchequer CXCIX The Lord Dacres and Philip Fines Case THe Case between the Lord Dacres and Fines was Tenant in Tail in remainder upon an Estate for Life of Lands holden in Capite levied a Fine thereof without Licence 3 Leon. 261. and Process issued against the Tenants for Life It was holden by all the Barons that by Plea he should be discharged it was holden That if the Conusor had any other Lands ubicunque in Anglia the Fine for Alienation should be levied upon them But it was moved If the Tenant should be driven to plead it because it appears upon Record that the Conusor was but Tenant in Tail in Remainder and that was in an Office containing such matter which was pleaded by another in another Cause before by which Office it appeared that the Lord Dacres was Tenant in Tail the Remainder in Tail to Philip Fines and now Fines had levied a Fine sur Conusans de droit c. and because the same appeared on Record Manwood awarded that the Process against the Tenants of the Lord Dacres should be stayed Trin. 29 Eliz. CC. Paston and Townsends Case IN Trespass by Paston against Townsend The Defendant pleaded that Tindal was seized in Fee by protestation and dyed seized and the Land descended To which the Plaintiff replyed and said c absque hoc that Tindal was seized in Fee upon which they were at Issue On the part of the Defendant to prove the Issue it was given in Evidence to prove the Issue in his right that the said Tindal long time before his death was seized and aliened and never after was seized It was said that that Evidence did not prove the Issue for the Defendant for the Seisin in Fee intended in the Issue is in the nature of a dying seized and so Periam conceived that the Defendants Plea did not intend any other Seisin a dying seized and the dying seized is taken by Protestation to avoid the doubleness So as the Seisin upon which the Issue is taken ought to be intended a Seisin continuing until the time of the death of Tindal and Seisin at large or a general Seisin at any time during the life of Tindal quod Anderson concessit Trin. 29 Eliz. In the Kings Bench. CCI. Griffith and Prices Case ERror by Griffith against Price upon a Iudgment in Chester in Ejectione firmae and the Error assigned was because the Original bore date 16 April 28 Eliz. and the Plaintiff declared of an Ejectment 17 April 28 Eliz. So as it appeareth that the Action was brought before there was any cause of Action and that was holden to be Error And also Ejectione firmae is not a personal Action and afterwards the Iudgment was Reversed Trin. 30 Eliz. In the Kings Bench. CCII. Harris and Caverleys Case A Iudgment was given in London between Harris and Caverley upon the Statute of 5 E. 6. for buying of Woolls and upon that Error was brought in the Kings Bench quod nota For this Writ of Error upon a Iudgment given in London ought to be sued before the Maior Vide â— N. B. 22 23. And Wray asked Wherefore the Writ of Error was brought here To which it was answered by Dodding Clark that the Record was removed by Certiorari out of the Kings Bench at the Suit of the Defendant to the purpose to bring a Writ of Error quod coram vobis residet And the Error was assigned in this that by the Statute of 18 Eliz. cap. 5. it is enacted that upon every Information that shall be exhibited a special Note shall be made of the Day Month and Year of the exhibiting of the same into any Office or to any Officer who lawfully may receive the same And here upon this Information there is not any such Note according to the said Statute And in truth no Information may be exhibited for there is not any Officer there appointed for that matter for the entry in such Cases in that Court is Talis venit deliberavit hic in Curia Miloni Sands c. But in the Case at Bar the Entry is Talis venit deliberavit in Curia but without shewing to whom But note that the words of the said Statute of 18 Eliz. are in the disjunctive into any Office or to any Officer and that such Information shall not be of Record but from that time forwards and not before wherefore here this Information is not upon Record and then no Iudgment can be given upon it Cook This Information may be well sued in London for the words of the said Statute of 5 E. 6. give Suit in any Court of Record of the King And the Court in London is a Court of Record of the King and every Court of Record hath an Officer to receive Declarations and Pleas and if it be delivered into the Office it is good enough 2. The Offence is laid in the Parish of Bow in Warda de Cheap alibi in Civitate London and so there is not any place laid where the Offence shall be tryed Cook This Alibi is a Nugation Trin. 31 Eliz. In the Kings Bench. CCIII Peuson and Higbeds Case IN Assumpsit the Plaintiff declared that in consideration that he by his Servant had delivered to the Defendant two Bills
upon all that matter it was holden that the said Francis was inheritable 19 Eliz. In the Kings Bench. CCXXIV. Grey and Edwards Case IN an Attaint by Grey against Edwards it was holden by Wray Gaudy and Jeoffries That if one makes a Deed and that by these words Dedi conveyeth Lands to another without any words of Bargain and Sale and that for a sum of mony If the Deed be debito modo enrolled the use shall pass as well as if the words of Bargain and Sale had been in the Deed because that a sum of mony was paid for the Land. 19 Eliz. In the Kings Bench. CCXXV. Webbs Case IN Action upon the Case the Plaintiff declared That whereas Cobham was indebted to J. S. and J. S. to the Defendant the said Defendant in consideration that the Plaintiff would procure the said J. S. to make a Letter of Attorney to the Defendant to sue the said Cobham promised to pay and give to the Plaintiff 10 l. It was objected Here was not any Consideration for to induce the Assumpsit for the Defendant by this Letter of Attorney gets nothing but his Labour and Travel But the Exception was not allowed of For in this Case not so much the Profit which redounds to the Defendant as the Labour of the Plaintiff in procuring of the Letter of Attorney is to be respected Temps Roign Eliz. CCXXVI Heggor and Felstons Case IN Trespass the Case was A Copyholder surrendred to the use of his Wife for Life and after to the use of his Daughter in Fee the Wife is admitted It was holden that the Daughter after the death of the Wife Copyholder Surrender by Attorney might without any admittance surrender the same Land for the first admittance was sufficient And Manwood said that Roper was Steward of a Mannor and one of the Copyholders of the said Manor being in Ireland he made a Commission to one to receive a Surrender from him there and it was holden a good Surrender CCXXVII Trin. 32 Eliz. In the Exchequer NOte by Manwood chief Baron for a Rule to all Counsellors That they do not advise any Collectors of Subsidies or Fifteens to exhibite any Bills in the Exchequer Chamber for the not payment of Subsidies for such Bills shall not be allowed hereafter because they have remedy by Distress Also it was That if any be assessed for the Fifteens which he ought to pay or if two Towns ought to pay together and one Town be taxed more than it ought to be or hath been accustomed those who are grieved by such Assessment may have a Commission out of the Exchequer which is called ad aequaliter taxand and that was put in practice in a case between Bartace and Hind where one of these was Lord of Little Marlow and the other of Hedsore It was also holden That Fifteens are to be levied of Goods and Chattels properly and a Township is sometimes richer than at other times and therefore it is not reasonable they pay their Fifteens always according to the same proportion But Clark Baron held where the Custom hath always been that the Fifteens shall be taxed according to the quantity of Acres then the rate and proportion shall be always on whosoever holdeth the Land. And as to the Commission ad aequaliter taxand Manwood and Fanshaw said That they could shew twenty Presidents of it Trin. 30 Eliz. In the Kings Bench. CCXXVIII Harris Case THe Case of Harris of the Middle Temple was Tenant in tail in remainder upon an Estate for life is attainted of Felony 2 Leon. 122. Hughs Qu. 13. 3 Leon. 185. 1 Inst â— If he hath forfeited his Remainder during his Life Popham Attorney General He hath forfeited it to the Queen for after his attainder the Law will not suffer it to remain in him and it cannot vest in the Lord of whom the Land is holden for the person attainted being Tenant in tail in remainder was not very Tenant to the Lord therefore if in none of them the Queen shall have it and the Law shall punish the offence so sharply that it suffer nothing to remain in him So Tenant in Dower and by the Courtesie And it is a Maxim What a man hath in his own right he may forfeit but it is not a certain rule Whatsoever a man may grant he may forfeit as Guardian in Socage and Executors may grant that which they cannot forfeit 2 Leon. 126. A man seized in the right of his wife is attainted of Felony the Queen shall have but the profits of the Land during the life of the Husband Vide Register 292. Where the husband seized in the right of his wife of certain Lands is outlawed of Felony the King seizeth and hath the Lands during the life of the husband after the death of whom issued a Diem clausit extremum Vide F.N.B. 254. D. Cook Tenant in tail in possession is attainted of Felony the King shall have but the profits but as our Case is being Tenant in tail in remainder upon an Estate for Life nothing shall be forfeited during his life and after the death of the Tenant in tail so attainted of Felony the Issue in tail may enter for the King hath not the Freehold for if the King had the Freehold the Issue in tail could not enter without Office vide Old Natura Brevium in the Writ of Escheat That the King shall have only the profits At another day it was argued by Egerton Solicitor That the Queen hath the Interest of him in the Remainder during his life for a man so attainted cannot be receiv'd against the Queen and if a man attainted of Felony purchaseth Land and dyeth his wife shall not be endowed of it And he said that this Remainder vested in the Queen without Office then not pardoned by 23 Eliz. It hath been objected That if the Remainder be in the Queen without Office by this attainder of Felony by the Common Law then also in case of attainder for Treason and then what need was there that the Statute of 33 H. 8. should be made which enacteth That in cases of Treason it shall vest in the King without Office. As to that I answer That that Statute was made in affirmance of the Common Law and also for other things given to the King by the Statute which were not given by the Common Law as Conditions Rights c. So as the King might grant over without Office and also the Subject have a Petition of Right before Office which was not at the common Law 33 H. 8. 20. in the saving in the end of it And as to the Statute of 18 H. 6 cap. 6. such things were in the King without Offce for by the common Law before Office the King might grant them but he could not grant them if they were not vested in him and the said Statute was made to such intent that the Queen should be fully informed of her Title c. by
A. who is admitted he shall not hold the Land charged and so it was adjudged in the Court of Common Pleas. CCXXXVII Mich. 23 Eliz. In the Common Pleas. IT was holden by all the Iustices in the Common Pleas That the Queen might be put out of possession of an Advowson by two Vsurpations and shall be put to her Writ of Right of Advowson as a common person shall be for it is a thing transitory and if the Queen after such Vsurpations grant the Advowson the Grant is void and so it was adjudged CCXXXVIII Mich. 23 Eliz. In the Common Pleas. THe Case was Tenant in tail the remainder over to another in Fee makes a Lease for life according to the Statute and afterwards dyes without Issue and afterwards he in the Remainder grants his Remainder by Fine before any Entry and by Fenner the Conusee cannot now enter upon Tenant for life nor avoid his lease for by the Livery to the Tenant for life a Freehold passeth which cannot be avoided without an Entry As if a Parson makes a lease for life rendring rent and dyeth the Successor accepteth the rent now the lease is affirmed vide 18 E. 4. 25. and then when before any Entry he in the remainder grants his remainder the Grantee shall have it but as a remainder and so the Estate of the Tenant for life which before was voidable is now made good and so it was holden by Windham and Periam But by Mead and Dyer by the death of Tenant in tail without Issue the lease for life is become void for the Estate out of which the Estate for life is derived is determined by the dying without Issue Ergo c. Vide 21 H. 7. 12. A lease for life is made upon condition That if the Lessor pay to the Lessee at such a day 20 l. that his Estate shall cease now by the performance of the Condition the Estate is determined without any Entry CCXXXIX 32 H. 8. In the Common Pleas. NOte by all the Iustices of the Common Pleas That if a man holds of the King in chief by Knights Service and also holds of another Lord by Knights Service and dyeth his heir within age and the King seizeth the Wardship of the Body and Land and afterwards the heir cometh of full age and before Livery sued the other Lord grants over his Seignory to another and the heir Attorns It is a good Attornment and also Seisin of the Services had by such Lord by the hands of such an heir before Livery sued is good enough and shall bind him afterwards in an Avowry c. Temps H. 8. Vide 31 H. 8. Rot. 420. CCXL Sir William Hollis Case SIr William Hollis brought a Quare Impedit against the Bishop of Coventry Godfrey Fuliamb Kt. and William Waltham Clark The Case was Sir Ralph Langford Kt. was seized of the Manor of D. to which the Advowson was appendant and presented to the same Church one A. his Clark who was admitted c. And afterwards the said Sir Ralph granted the next Avoidance of the same Church to Sir Godfrey Fuliamb James Fuliamb George Fuliamb and William Walton eorum uni conjunctim divisim afterward the said Sir Ralph granted by fine the said Manor with the Advowson to Sir William Hollis in Fee the Church became void the said Sir Godfrey Fuliamb presented the said Waltham his Clark who was admitted c. And upon Argument at the Bar and Bench It was adjudged against the Plaintiff and the Presentment of Sir Godfrey sole without the others was good Notwithstanding also that Waltham the Presentee was one of the Grantees of the next Avoidance Tr. 31 H. 8. Rott 420. Vide 21 E. 4. 66. 35 H. 6. 62. See this Case lately Reported in Sir George Mores Reports by the name of Sir Godfrey Fuliambs Case CCXLI. Temps Roign Eliz. NOte by Hind and Hales the Kings Attorney Iustices of Assize in the County of Essex in the Case of the Bishop of London and one Heron Keeper of Cronden Park if the Keeper of my Park or any of his Servants without his assent of their own heads and without my commandment kill my Deers within the said Park being within his keeping or abateth or pulleth down any house within the Park or Barn for to lay Hay for the Deer there or cutteth any Trees Wood or Vnderwoods there growing and sells the same or gives it to another that in all these cases the Keeper of the Park shall forfeit his Office And it was agreed by them That such a Keeper hath not any estate or possession in the Park or in the Lodge but the possession remains always in the Owner of the Soil of the Park and the Keeper hath but the occupation and keeping and the surveying of the same for such a Keeper cannot justifie the holding of the Lodge with force in a Writ brought upon the Statute of 8 H. 6. by the Owner of the Park but it was agreed that he who hath the inheritance in such an Office shall not forfeit his Office for the causes aforesaid Hil. 29 Eliz. In the Common Pleas. CCXLII. Fitz and Pierces Case IN Ejectione firmae by Fitz against Pierce Pierce was outlawed and now came and shewed by way of Plea that the outlawry was erronious in this videlicet ad Com' meum tent ' 30 Jan. 29 Eliz. whereas the said day was Dies Dominicus and so there was no County Court It was the Opinion of Windham that the same matter did well lye in Plea for it is matter apparent within the Record as in the case of Brecket and Fish Plowd Com. 266. Rhodes and Periam were of a contrary Opinion and said the case cited is not like to the case at Bar for there it appeareth to the Court as Iudges when every Term beginneth and endeth but it is otherwise in our case si 30 die Januarii be dies Dominicus necne for it shall be tryed by the Country c. Trin. 32 Eliz. In the Kings Bench. CCXLIII Keenes Case RAlph Keene Vicar of B. was Indicted for stopping quandam viam valde necessariam Indictment Nusance for all the Kings Subjects there passing Exception was taken to it because it wanted the word Regiam and the word necessariam doth not imply any matter for a Foot way is necessary Addition Also here the Party hath not any addition It is R. K. but it is not said Clarke and for these causes the Party was discharged Trin. 32 Eliz. In the Kings Bench. CCXLIV Peake and Pollorts Case ACtion upon the Case by Peake against Pollort Words upon these words Thou art a malicious and sedicious man and movest the Queens Subjects to Sedition It was the Opinion of the Court that the words were not actionable for they were too general for it may be that the Defendant hath stirred up the Tenants of a Manor to Tumults and Sedition which is not any great Scandal And the Statute of
23 Eliz. is If any Person do any thing to move the People to Sedition the same is Felony but then it must be Sedition against the Queen and of that Opinion was the whole Court. Trin. 32 Eliz. In the Kings Bench. CCXLV Ratcliffe and Shirleys Case THe Lady Ratcliffe brought an Action upon the Case against Shirley for these words Words My Lady Ratcliffe is a beggerly Lady and giveth thread-bare Coats she bought Sheep and cosen'd men of their money and she is as very a Thief as he that robbeth by the High-way Vpon Not Guilty the Iury found that the Defendant spake these words She is a worse Thief than he that robbeth by the High-way It was holden that the words found by the Verdict were actionable as well as if the Defendant had called the Plaintiff Thief generally But it seemed to the Court that upon that Verdict the Plaintiff should not have Iudgment for it may be that the Defendant dixit utrumque at several times and so several Causes of Action And it is not like to the Case 3 Ma. 118. where part of the words is found quoad alia verba non dixit and so expresly acquit him of the remnant so it is not here for this Verdict doth not acquit him of the other words and for that Cause Iudgment was stayed Hil. 26 Eliz. In the Kings Bench. CCXLVI Herne and Crowes Case IN an Action upon the Case by Herne against Crowe and declared that whereas certain Irish Merchants had imported Furs here into England which were offered to be sold in London which Furs the Defendant desired to buy but because he was a Foreigner he could not buy them without peril of forfeiture and then the Plaintiff was in communication with the Merchants to have bought them that the Defendant in consideration that the Plaintiff promised to the Defendant that when he had bought the said Furs the Defendant should have such a quantity of the said Furs as he pleased upon equal price assumed and promised that he would speak no more with the said Merchants for the buying of the said Furs yet that notwithstanding he proceeded in the said bargain and offered to the said Merchants sixty pound more than any other by reason of which the Plaintiff could not have them for such reasonable price as he might have had them before It was holden by Wray Chief Iustice That the Declaration here was insufficient upon which the Defendant might have well demurred Mich. 26 Eliz. In the Common Pleas. CCXLVII. Bakers Case A Writ of Partition by Baker Heir of Gertrudi Marquess of Exeter who devised all his Lands to Blunt by which the third part descend to the Plaintiff Estrepement and prayed a Writ of Estrepement and it was the Opinion of the Court that the Writ is not to be granted for the Plaintiff may have a more proper remedy upon the Statute Cum duo vel tres and in a Writ of Partition no Land is demanded CCXLVIII Mich. Eliz. In the Common Pleas. Conditions A Man was bound in an Obligation that he should release all his right in Black Acre to the Obligor and in the performance of the said Condition he made such a Lease and delivered the same to C. to the use of the Obligor The Opinion of the whose Court was That the Condition was not performed because the Obligor had not the Lease in his own hands to plead but is put to his Writ of Derinue against C. which was not the intent of the Condition Mich. 31 Eliz. In the Common Pleas. CCXLIX Seaman and Brownings Case SEaman brought Debt in an Obligation against Broshnin and others Executors of one Marshall The Condition was That whereas the said Marshall had sold certain Lands to the Plaintiff If the Plaintiff peaceably and quietly enjoyed the said Lands against the said Marshall c and assigned the breach That the said Marshall had entred upon them and cut down five Elms there upon which they were at Issue And it was found that a Servant of the said Marshall had entred and cut them and that in the presence of the said Marshall his Master and by his commandment It was the Opinion of the Court that the Condition was broken and that the Master was the principal Trespasser Trin. 30 Eliz. In the Common Pleas. CCL Babingtons Case HUmphrey Babington brought a Writ of Disceit and counted that T. S. was seized of Land and held the same of the Manor of Rodely which Manor is ancient Demeasn And that the said T. S. being so seized a Writ of Entre sur Disseisin was brought against him in which T. S. pleaded and lost and Iudgment was given against him Et quod ipse Humphridus extitit Dominus Manerii praedicti and concluded ad exhaeredationis ipsius Humphrâ—di periculum manifestum Exception was taken to the Count because the words are quod cum ipse existit Dominus Manerii praedicti where he ought to say further Amendment Et tempore Judicii praedicti existebat for if the Recovery was before he purchased the said Manor his Action doth not lye which Rhodes and Anderson concesserunt wherefore day was given to the Plaintiff to amend his Count. 32 Eliz. In the Exchequer CCLI Sir William Pelhams Case THe Case was A. Tenant for life the remainder in tall to B. c. A by Deed indented and inrolled bargained and sold the Messuage so conveyed to W. P. in fee who suffered a common recovery in which A. is vouched and so a common recovery had and executed and this was before the Statute of 14 Eliz. And if the recovery should bind B. and his remainder in tail was the question or if it be a forfeiture Altham argued that here is a forfeiture 1. It is to see if a common recovery suffered by Tenant for life which here is the Bargainee be a forfeiture or no by the common Law 1 Leon. 264. it s not forfeited 2 Leon. 60 65. if no Execution be sued upon the same Recovery 2. If it be executed then if he in the remainder may enter for the forfeiture When the Tenant for life bargains and sells the Messuage although upon it an estate in fee be limited yet nothing passeth from him but what he may lawfully pass and that was the estate for life of the Bargainor for such an estate only he might lawfully pass and here the Vendee is but Tenant for the life of another and when of his own assent he suffers a common recovery and that without right it is a forfeiture By matter in Fait a particular Tenant may commit a forfeiture as well as by matter of Record By matter in Fait he cannot commit a forfeiture if not thereby the reversion be not pulled out of him in the reversion As if a Lessee for 10 years make a Lease for 1000 years it is not a forfeiture for by that the reversion is not touched but if he by matter of Record do
any thing which sounds to the disinheriting of him in the reversion although in truth the same doth not touch the Inheritance yet it is a forfeiture Vid. 39 E. 3. 16. If Tenant for life pleads any thing against the right of him in the reversion it is a forfeiture and by Finchden and Belknap he cannot plead in the right 5 Ass 3. Tenant for life is impleaded in a Praecipe by a stranger and confesseth the Action upon which the Demandant hath Iudgment the Lessor enters against whom the Demandant sueth Execution The Lessor brought an Assise and had Iudgment to recover for it is a forfeiture because the Tenant for life hath admitted the reversion in another because it is an alienation to the disinheriting of the Plaintiff and of the Lessor 12 E. 3. Fitz Resceipt 14. where Tenant for life pleaded in chief or cannot deny or gainsay the Action of the Demandant or makes default by Covin he shall forfeit his Estate But if a rent be demanded against Tenant for life and he rendreth the same it is no forfeiture 12 Ass 31. Tenant for life is impleaded by Covin between him and the Demandant and pleads in chief without aid prayer upon which Iudgment is given he in the reversion enters in a Juris utrum against Tenant for life who pleads feintly traversing the point of the Action he in the reversion shall not be received for in as much as the Tenant hath traversed the Action he is not within the Statute of West 2. 3 5. Default Reddition but he in the Reversion may enter by the Common Law 22 E. 3. 2. In Scire facias to execute a Fine against Tenant for life who pleaded to the Inquest whereas in truth the Land in demand was not comprised within the Fine Iudgment is given for the Demandant in the Scire facias he in the reversion may enter In our principal case here is apparent and manifest Covin for the Tenant for life voucheth without cause and this Recovery is by assent and is to the use of the Vendee who is Tenant for the life of another and therefore by the Common Law he in the Remainder may enter before Execution sued And it is well known that these common Recoveries are used for to dock Remainders in Tail and that was the scope of this Recovery And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat who voucheth a stranger the Demandant counterpleads the Voucher and it is found for him he in the Reversion hath no remedy but by a Writ of Right and if the Vouchee entreth and loseth by Action tryed or default ut supra that Book is to be intended of a Recovery executed for there in such case he in the Reversion hath not an Entry but is put to his Writ of Entry by the Common Law Vide Br. Title Forfeiture 87. 24 H. 8. Tenant for life is impleaded and prays in the Aid of a stranger he in the Reversion may enter but if he doth not enter until the other hath recovered then he cannot enter but is put to his Writ of Entry Ad terminum qui praeteriit vel de ingressu ad Communem Legem and therein he shall falsifie the Recovery and there by Brook Voucher of a stranger is not cause of Forfeiture for it doth not disaffirm the Reversion in the Lessor And he vouched 24 E. 3. 68. where Tenant for life pleaded in the right with aid prayer And so he argued that before Execution he in the Remainder might enter but after Execution is put to his Action But in our Case although that Execution be good yet he in the Remainder may enter for it is found by Verdict that at the time of the Recovery he was within age and that when he dyed that he in the next Remainder was within age and then no Entry shall be imputed and then he shall not be driven to his Action As if Tenant by the Courtesie makes a Feoffment with warranty and dyeth and the same descends to his Heir within age yet he shall enter although he hath not avoided the warranty in the life of his Ancestors Also he said that the Statute of 32 H. 8. extended to this Case for Sir William Pelham the Vendee was but Tenant for life and although that he be but Tenant for the life of another yet he is Tenant for life as fully as if he were Tenant for his own life or otherwise Tenant for life or lives Note this the words of the Statute As upon the Statute of 20 E. 1. which gives Resceipt de defensione juris the words are Cum quis aliquod breve Domini Regis impetret versus Tenentem per Legem Angliae vel feod taliat ' vel sub Nomine Dotis vel alio modo ad terminum vitae upon these words it is holden 11 H. 4. That where Land was given to one and his heirs for the life of another that upon such an Estate he in the reversion should be received by reason of these words vel alio modo ad terminum vitae c. And although he who enters at the time of the recovery was not next in remainder to the particular Estate yet he is within the Statute of 32 H. 8. For he was in remainder at the time of the recovery and at the time of the entry he in the immediate remainder was dead and then he the next in remainder Vide 15 E. 4. 9. by Litt. If I grant my Services to one for life and he in a Praecipe brought against him pleads in the right or grants to another the said Services in Fee it is not a Forfeiture for it is no Discontinuance It will be objected That the words of the Statute of 32 H. 8. are That such recoveries shall be utterly void and if so then he in the reversion cannot be damnified and then no cause of Forfeiture So that it may be easily answered That where Tenant for life doth any thing which sounds to the disinheriting of him in the reversion by matter of record although the same doth not devest or otherwise prejudice the Inheritance yet it is a Forfeiture Cook to the contrary Here in our Case is not any Covin in Sir William Pelham the Bargainee he was deceived by the Bargainor for he did not know but that the Bargainor was seized in tail according to the Covenant in the Indenture by which the Bargainor covenanted that he was seized in tail at the time of the Bargain and also to do any other act for assurance of the Estate of the Bargainee and it was lawful for him to Vouch his Bargainor and although he voucheth a stranger it is not a Forfeiture 39 E. 3. 16. Aid prayer of a stranger is a Forfeiture and the reason of that is because he acknowledgeth the reversion to be in a stranger and that is the cause of Forfeiture Vide Book of Entries 254. Where upon
defence c. and therefore if he maketh default or confesseth the Action it is a Forfeiture And as to the supposed recompence the same doth not help the Case for this common Recovery is no other but an Assurance and Recoverors are but Assignees and they shall take advantage of Conditions by 32 H. 8. and a recoveror shall be seized to the use of him who suffers the recovery if no other use be expressed And he also held that when Tenant for life bargains and sells his Land by Deed inrolled although no Fee passeth 1 Leon. 264. 3 Inst 251. b. Mores r. 212. 2 Leon. 60 65. yet it is a Forfeiture and that by reason of the Inrollment which is matter of Record And he said that if an Infant Tenant for life be disseised the Disseisor dyeth seized and afterwards the Infant dyeth that he in the remainder may enter Gent. to the same intent If Tenant for life c. the same is not simply a Forfeiture for he may have a Warranty or a Release or a Confirmation made to him Attornment doth not give a right but is only a consent yet if he who hath nothing in the reversion will levy a Fine of it to another and afterwards the Conusee bringeth a Quid juris clamat against the tenant of the Land and he Attorns it is a Forfeiture Manwood to the same intent This is a new Case and I have not read the Case in any Book nor seen any President of it And it is a great Case and a general Case and worthy to be argued and I conceive clearly that here is a direct and express Forfeiture at the Common Law without any aid or restraint of any Statute to make it a Forfeiture The dignity of Iudgment in the repute of Law hath been urged which ought to stand in force until they be reversed by Error or Attaint And also Littleton hath been urged 481. where upon the Statute of West 2. cap. 3. he saith that before the Statute aforesaid If a Lease had been made to one for life the remainder to a stranger and afterwards a stranger by feigned Action had recovered against the tenant for life by default and also the tenant for life dyed that he in the remainder had not any remedy But there Littleton doth not report the same as his own Opinion but as an Opinion conceived by a remainder upon the said Statute and it is in truth but a meer conceit And as to the main point he took this diversity Such Recoveries in which the title of the demandant stands indifferently to the Court and Non constat if it be good or not being suffered by tenant for life by default or confession without Aid prayer of him in the reversion do not make any Forfeiture although the tenant for life hath not dealt well with him in the reversion not having prayed in aid of him And in such Case If a Lease be made for life the remainder over in Fee upon such a recovery he in the remainder shall have a Formedon in the remainder or a Writ of Right and shall not oust him who recovered without Action and that by the Common Law. Then came the Statute of West 2. cap. 3. which gave to the Wife Cui in vita upon a Recovery against the Husband by default whereas before she had not any recovery but a Writ of Right and notwithstanding her former recovery ulterius necesse habet ostendere jus suum secundum formam brevis quod prius impetraverat and if his right be not better than the right of him in the Reversion he shall lose the Land notwithstanding the Iudgment given before for him And that Statute gave Resceit or Entry ad terminum qui praeteriit and that Statute is to be intended of such Recoveries where a good or at least an indifferent Title is so as non constat Curiae if it be good or not After that Tenant for life was driven to a near shift and would not make default or lose by nient dedire but would plead but yet faintly for the remedy of which Mischief the Statute of 13 R. 2. was made which gave Resceit in such Case the particular Tenant being restrained by that Statute He jugled yet and practised to suffer a Recover secretly without notice of him in the Reversion To remedy which Mischief the Statute of 32 H. 8. was made and that made such Recovery had against such particular Tenant void against him in the Reversion It hath been objected That the Statute of 32 H 8. doth not give any Forfeiture in that Case but makes that the Recovery be void therefore he in the reversion ought to tarry till after the death of the particular Tenant To that I shall speak after But how our Case is a common Recovery and constat Curiae that the Demandant hath not any right for the Tenant might have barred him and in truth he who recovereth is but a Purchasor Also this recovery is not to the use of the recoverer but to the use of him who was Tenant in it and not paramount as in the Case of a recovery upon a good title a Lease for years made by him who after suffers a recovery is good and shall not be defeated by the recoveree otherwise it is where the recovery is upon a good Title Vide Statute of Gloucest cap. 11. Where upon default of the Tenant resceipt is given for Lessee for years yet if the Tenant vouch upon default of the Vouchee the Lessee for years shall be received and now resceipt of Lessee for years is out of the Book for by the Statute of 21 H. 8. he may falsifie But no resceipt lyeth in the Case of a common recovery for he who recovereth cannot oust the Termor As to that which my Brother Clark hath said That the Bargain and Sale in this Case is not any Forfeiture but when the Deed of Bargain and Sale is inrolled it is a Forfeiture I am not of that Opinion for although that the inrollment be of record yet the Deed is not of record for against the Deed inrolled a man may plead Infancy although none can plead Non est factum to it Also he held that although by the Bargain and Sale and the inrollment of it the Bargainee had not Fee for by such act the reversion is not removed yet by the recovery and the Execution of it the Bargainee had gained the Fee out of the Lessor for the recovery is to the use of the Bargainee against whom it was had c. It hath been objected That he is only a Voucher which peradventure was lawful in this Case by reason of the Warranty paramount or of a release or confirmation with Warranty and two Cases have been vouched to such purpose viz. 5 E. 4. 2. Tenant for life being impleaded in a Praecipe vouched a stranger the Demandant counterpleaded the Voucher which was found for him he in the reversion had no remedy but
the Statute of 33 H. 8. gives to the King Conditions yet it doth not give the performance of them or ability to the King to perform them And there are three Reasons wherefore this Condition cannot pass to the King 1. There is a Condition in the Proviso which precedes the Condition of the Tender viz. If the said Francis my Nephew be given to intolerable Vices then if the said Sir Francis deliver or offer c. and in the whole pleading it is not averred that the Nephew was given to intolerable Vices therefore the precedent Condition not being performed the second Condition is not ripened nor in season 2. The substance of this Condition consists in the will and pleasure of Sir Fr. Englefield therefore it cannot be given to the Queen 3. The prejudice which should come to Francis the Nephew if this Condition should come to the Queen Vide Br. Temps H. 8. A Foundership cannot Escheat or be forfeited by Attainder of Felony or Treason for it is a thing annexed to the Blood which cannot be separated and he said also that the Condition was gon before that tender for the Conveyance by which the Condition was granted was made void by the Act of 29 H. 8. cap. 3. by which it is Enacted That every person within two years after the last day of this Session shall openly shew and bring forth into the Exchequer his Conveyance and there in the Term time in open Court shall Exhibit the same to be entred and inrolled of Record and here the end of the Session was such that all the Terms of the said two years were passed before the tender made by the Queen and although the two years were not past yet all the Terms were past and the Conveyance ought to be shewed in Term time therefore the true time is incurred before the Tender and then the Conveyance is void and by that the Condition gon When the Queen was Tenant for the life of Sir Francis and makes a Lease for years and afterwards by the Condition hath the Inheritance if now she shall avoid the Lease made by her when she was Tenant for life A Disseisor makes a Lease or grants a Rent-charge and afterwards the Disseisee releases unto him he shall not avoid his own Act. A man seized in the right of his Wife makes a Lease for years hath Issue and so is intitled to be Tenant by the curtesie the Wife dyeth he shall not avoid his Lease Feoffor and Feoffee upon condition joyn in a Lease for years the Condition is performed on the part of the Feoffor he shall not avoid his Lease And the Prerogative of the Queen shall not alter the matter against aequum bonum As to the Statute of 29 Eliz. it was not the intent of that to avoid Estates claimed for or by the Queen for the Estate was made for the benefit of the Queen As to the words of the Statute every person or persons which hath or claimeth to have c. the Queen is not within the words If a Statute ordains attendance or restraint of any Liberty which was before at the Common Law there the Queen shall not be within it As to attendance the Queen is not bound to make claim upon a Fine levied As to re-grant the Queen is not bound by the Statute of Westm 3. Quia emptores terrarum also where matter of penalty is imposed Also here is an Oath to be taken c. the Queen being Tenant for the life of another leaseth the Woods and grants to the Lessee power to cut the Woods and convert them to his own use Now if after the Inheritance cometh to the Queen if the Queen may impeach her Grantee truly the property of the Woods and Trees was in the Queen at the time of the Grant and although the Inheritance came to the Queen afterwards yet the same shall not overthrow the first Interest of the Grantee Lessee for life or for years before the Statute of Gloucester could not be impeached for Waste therefore as I conceive the property of the Trees was in him for there was no remedy for them against him See the reason of that in Dr. and Student Quasi the property of the Trees pass to the Lessee with the Demise which shall be taken strongly against the Lessor If the Lessee cutteth the Trees the Lessor shall not have Trespass against him nor Detinue for the Trees Lessee without impeachment of Waste cutteth the Trees and leaves them upon the Land and dyes his Executors shall have them and not the Lessor The Lessor grants omnes boscos arbores suas nothing passeth for they pass to the Lessee if they be not excepted The Lessor against his own Lease cuts the Trees without the agreement of the Lessee Trespass lyeth 5 H. 4. 56. The Heir being in Ward cut Trees in his Lands in the possession of his Guardian who brought an Action against the Heir it was adjudged maintainable although the Free-hold was in the Heir Egerton Solicitor to the contrary Admit the use in Sir Francis be the ancient use yet it is but for life and then when the Queen having the Estate of Sir Francis makes a Lease for 40 years with the grant of the woods the said Lease was void for the Queen was deceived in her Grant Sir Francis was punishable for Waste therefore the Queen having his Interest ought not in Iustice to have cut the great Wood. And it is to be presumed That if the Queen had known the smallness of her Estate she would not have made so great a Lease nor such a Grant of the Wood. The King seized of Land in his own right reciting by his Letters Patents that he hath it by Attainder of J. S. gives the same to another the Gift is void The King licenceth one to appropriate an Advowson without being informed that the same is holden in chief it is void A licence to alien whereas in truth the Land is holden in tail the Reversion or Remainder in the King is also void and here in our case the Queen hath but a particular Estate for the life of another and here out of that petty Estate is drawn a Lease for 40 years where Lessee for life was 60 years of age at the least and also a Grant of all the Trees If the Queen hath a particular Estate and grants totum Statum suum without reciting of such particular Estate the Grant is void the Queen hath the Profits of the Lands of one who is Outlawed in a personal Action and grants to another the Land it self it is void for it is a wrong to a third person which the King cannot do But here the Special Interest of the Queen ought to be recited Now when the Queen being Tenant for the life of another makes Leases ut supra and afterwards the Fee cometh to the Queen the Estate out of which the Leases are derived being determined the Leases also are determined scil
for 21 years to begin at Michaelmas before and in pleading it was shewed That virtute cujus dimissionis posterioris the Plaintiff entred fuit possess crastino Michaelis which was before the making of the Lease and the Plaintiff in his Declaration declared That the Defendant in consideration that the Plaintiff had assigned to him the said Leases had promised to pay to him 630 l. It was found for the Plaintiff Cook For where the Plaintiff in an Action upon the Case declares upon two Considerations in such Case although the one be void yet if the other be good and sufficient the Action is maintainable but the Damages shall be given without respect had to the Consideration insufficient and the Plaintiff was to declare upon both Considerations for the Assumpsit upon which the Action is conceived was in consideration that both the Leases were assigned to the Defendant and our Declaration ought to be according to the Assumpsit and it was not material although that one of the Considerations was utterly void Another Exception was taken Because the Lease is set forth to be made 18 October and that by virtue thereof the Plaintiff entred Cro. Mich. Then the Plaintiff entring Cro. Mich. was a Disseisor and then being in by disseisin he could not assign his Interest to another and that appears clearly to the Court upon the whole matter But Cook said That shall not hurt us for it is but matter of surplusage to say Virtute cujus c. As 20 H. 6. 15. the Plaintiff in Trespass supposed by his Declaration that the Trespass for which the Action was brought commenced 10 H. 6. with a Continuando until the day of the Action brought viz. idem 14 Febr. 17 H. 6. where the Writ bore date 12 die Octobris Anno 17 H. 6. And Exception was taken to the Declaration because the continuance of the time was not put in certainty But the Exception was not allowed for it is certain enough before the viz. the day of Writ brought and so the viz is void and all that which follows upon it And so here this Clause Virtute cujus est totum sequitur est omnino void 7 H. 4.44 Br. Action upon the Case 37. The Writ was Quare Toloniam asportavit illud solvere recusavit Exception was taken to the repugnancy for it would not be carried away if it were not paid before yet the Writ was awarded good and the first word Toloniam asportavit holden void So here in the principal Case As to the other Exception it is clear That here is not any Disseisin upon this Entry of the Plaintiff before the making of the said Lease for there was a Communication betwixt the Parties of such a Lease to be made or of such an Assignment and peradventure the Entry was by assent of the other part and then no Disseisin And posito it should be a Disseisin yet the Plaintiff hath assigned all the Interest quod ipse tunc habuit according to the consideration and delivered to the Defendant both the Indentures of Demises and so he hath granted all that which he might grant And if it be a void Assignment or not is not material for quacunque via data the Consideration is good and then the Assumpsit good also Egerton Solicitor contrary In every Action upon the Case upon Assumpsit three things ought to concur Consideration Promise and breath of Promise and in this Case the Assignment of the Lease to begin after the death of the Lessor is void being but Tenant for life and no Consideration upon the confession of the Plaintiff himself And upon the second Consideration it appeareth the Lessor viz. the Wife who held for life had but a right to the Land demised for she was disseised for he to whom the Land was after let entred before the Lease was made for it doth not appear that he entred by force of any agreement made before the Lease therefore by his Entry he was a Disseisor It was also moved That here was not any sufficient consideration for by a bare or naked delivery Nihil operatur and here is not any word of Give or Grant. To which it was answered That the delivery of the Indenture was not a bare Bailment but a Delivery to the use in the Indenture and so it is pleaded and therefore thereby an Interest passed for such a delivery cannot be countermanded An Indenture with an Averment shall never make an Estoppel Clench Iustice If I deliver any thing to one for his proper use an Interest passeth but if it be to the use of another no Interest passeth The party may have usum but not proprietatem CCLVII Mich. 18 Eliz. In the Kings Bench. Contract IF a Contract be made betwixt two here in England scil that one of them shall carry certain Goods of the others to Burdeux in France and sell them there and with the mony thereof coming shall buy other Goods for the use of him who was the owner of the first Goods and safely them deliver to him in London If now the party sell them in Burdeux and buyeth others with the monies thereof and brings them into England and there converts them to his own use upon this matter an Action lyeth at the Common Law for the Contract and the Conversion being the cause of the Action was made in England But if the Contract only was in England and the Conversion beyond the Seas the Party at his Election may sue at the Common Law or in the Court of Admiralty And if a Merchant here write to his Factor in France to receive certain Merchandizes which he hath sent to him and to Merchandize with them for his use if the Factor receiveth them and converts them to his own use the Father shall be sued in the Admiralty 25 Eliz. CCLVIII. The Earl of Huntington and the Lord Mountjoyes Case IT was agreed by the two Lord Chief Iustices 1 And. 308. upon conference had with the other Iustices in the Case between the Earl of Huntington and the Lord Mountjoy That where the Lord Mountjoy by Deed indented and inrolled bargained and sold the Manor of Camford to Brown in Fee in which Indenture a Clause was Proviso semper and the said Brown covenants and grants cum and with them the Lord Mountjoy his Heirs and Assigns That the said Lord his Heirs and Assigns might dig for Ore in the Wasts of Camford And also to dig Turf there to make Allom and Copperice without any contradiction of Brown his Heirs and Assigns that now here is a new Grant of an Interest to dig to the said Lord and his Heirs in the Lands aforesaid and not a bare Covenant and it was holden also that the said Lord could not divide the Interest granted to him in form aforesaid viz. To grant to another to dig one part of the said Waste c. But they were of Opinion That Brown his Heirs and Assigns notwithstanding
intended to be continued till the contrary be shewed And the Authority which the Owner of a Remainder hath upon it is but conditional scil If the Tenant in tail in possession doth not countermand it by a recovery c. And also the possession upon which the Avowry is made is not the same possession which was charged but is a Foreign possession gained by the recovery and therefore before the proper possession be recontinued there can be no Distress nor Avowry for the Land is not reduced in the privity of Estate which was charged and if he in Reversion upon such Estate tail would grant his reversion rendring rent and afterwards the Tenant in tail in possession suffers a common recovery and dyeth without Issue Now the reversion being destroyed the rent is gone And he put this Case Tenant in tail grants a Rent-charge to begin after his death without Issue and afterwards suffers a common recovery and dyes without Issue it is a good rent and shall bind the Recoveror c. At another day in the Exchequer Chamber the Case was argued again by Snagg Serjeant for the Defendant and he was very long in proving that a remainder might be charged as in this case But the Court discharged him of that and directed him to argue to this Point If this recovery did discharge the rent c. wherefore he argued That these common recoveries are false and feigned things false in the Title and covenous in the Proceedings and all in prejudice of a third person And Vide 14 H. 8.3 such common recoveries are holden fraudulent and therefore by fraud and covin being so odious in our Law we ought not to give and allow unto them so much force as is due to unfeigned recoveries for these common recoveries do not go in disaffirmance of the former possession nor in any eviction of it but for the most part in affirmance and the Estate gained by this recovery is under the Estate of him against whom the recovery was had and he is in by him for common Recoveries are no other but common Assurances And in our Case the imagined Recompence cannot come to him who hath by the recovery lost his rent and therefore it is not reason that the recovery should bind as to this rent Vide 12 E. 4. 19 20. Tenant in tail discontinueth and takes back an Estate to him in Fee and afterwards a common recovery is had against him it shall not bind the tail for the presumed recompence shall go to the Estate which he hath lost scil the Estate in Fee and not to the Estate tail whereof at the time of the recovery he was seized So in our Case the Land which by Fiction of Law is to be yielded in value upon this Voucher shall not extend to the benefit or recompence of the Grantee of the Rent-charge but only to H. who hath lost his remainder and his new remainder which comes in lieu of the former shall not be charged with this rent And therefore the remainder which by this recovery is drawn out of H. transit cum suo onere cum acciderit shall answer and shall yield the rent according to the purport of the Grant. As 33 H. 6. 4 5. two Ioyntenants are The one grants a Rent-charge and afterwards releases to his Companion he shall hold the Land charged notwithstanding that he be now fully in by the Feoffor And if there be Lord and Tenant and the Tenant grants a Rent-charge in Fee and dyeth without Heir so as the Land goes to the Lord in point of Escheat yet the Lord shall hold the Land charged And as to the Statute of Fraudulent Conveyances 27 Eliz. cap. 4. the same cannot extend to this Grant for here this Grant is upon consideration of Nature made to his own Son for his advancement Popham Attorney General to the contrary And that neither the Grantee of this Rent nor he who makes Conusans in his right shall falsifie this recovery And he put a difference where the party who leaseth or chargeth a remainder is bound by the recovery voluntarily and where involuntarily for where the recovery is suffered voluntarily there the Grantee or Lessee shall not be bound by that recovery but they shall falsifie But where as our Case is there the Party who chargeth or leaseth is bound involuntarily by such recovery there all Interests are bound and the charge is subject to the same mischief as the remainder it self out of which it is issuing Vide 7 H. 7. 12. He in the remainder in Fee shall not satisfie a recovery had against the Tenant for life but he is put to his Writ of Entry ad terminum qui praeteriit in which he shall falsifie and not by Entry much less he in the remainder upon an Estate tail shall not falsifie and falsifier lyes properly where the Party who grants or leaseth against his Grant or Lease practiseth by such recovery to avoid or defeat his own Estate and by consequence the Interest of his Grantee or Lessee But in our Case there is not any such matter for the Grantor H. was not party or privy to this recovery nor Tenant nor Vouchee and therefore no Covin and then no Voucher and all the Cases in our Law of falsifying of recoveries are upon such matter And he put the Case of 19 E. 2. Fitz. Title Assise 82. where the Conusee of a Statute Merchant having sued Execution one who had no right impleaded the Conusor and by Covin recovered against him and by Execution upon that recovery ousted the Conusee it was holden he should have an Assise and falsifie for here he who party to the recovery Donee in tail the remainder over in Fee upon condition suffers a common recovery the Condition is gone And as to the Statute of 21 H. 8. cap. 15. Falsifying is not given in our Case by the said Statute the words of which are Where divers Men have leased their Land to Farm and afterwards after such Leases made the Lessors their Heirs and Assigns have suffered Recoveries Within which words our Case is not for he against whom the recovery was had was not our Grantor his Heir or Assign So if there be Tenant in tail the remainder over to another in Fee he in the remainder makes a Lease for years and afterwards Tenant in tail in possession suffers a common recovery the Lessee shall not falsifie for that Lease was not made by him against whom the recovery was had And it is clear that by the Common Law the Grantee of a Rent-charge cannot falsifie against the Grantor his Heirs or Assigns But it was a doubt as it appeareth 7 H. 7.11 If upon a faint pleader the Lessee for years might be received for the Statute of Gloucester extends but to default or re-disseisin but now by the Statute of 21 H. 8. cap. 11. in three Cases Default Reddition and Faint pleading such Resceipt lyes which proves that in case of rent
rather a portion of the profits c. and therefore the Land shall be said the Chauntry and not the Sum and here the intent of the Statute extends to the intent of the Founder So that if the intent of the Founder was to give the Land to Superstitious Vses the same is within the Statute If Cestuy que use wills that his Feoffees have the profits of his Lands ut supra to the Sustentation of a Chauntry Priest and the Feoffees imploy but 20 l. per Annum whereas the Land is of the value of 100 l. per Annum by this Statute the King shall have all for the intent of the Founder was That all should be imployed And so here for upon the Matter the Dean and Chapter are but as Feoffees and see that this Statute of Chauntries makes a great difference between Obits and Lights and Chauntries for in the Case of Obits and Lights the King shall not have but that which was imployed Whetstones Case was That Whetstone seized of the Manor of Cocke made a Feoffment thereof to certain Feoffees to find two Obits in such a Chappel and with the residue of the profits to maintain the Chappel and Iudgment was given for the Queen Here the Condition knit to the Reversion upon a Lease made by the Dean and Chapter to Nicholas Wilford passeth to the King by the Act of Parliament for a Condition is an Hereditament and when the King grants over the reversion to Butcher the Condition also passeth by 32 H. 8. Bromley Solicitor The Statute extends to Chauntries in existence only and not to Chauntries in reputation Chauntry hath divers significations in Law 1. For the Service which the Chauntry Priest is to do as cessavit de Cantaria 2 Sometimes for the Advowson of the Chauntry scil Quod permittat praesentare ad Cantariam 3. Sometimes for the Body of the Chauntry scil the Land of which it is endowed and in that sense it is taken by the Statute I will agree if the same had been an ancient Chauntry time out of mind c. and the Incumbents thereof had taken the profits and made Leases of it that then it should be a Chauntâ—y within this Statute for it might be corporated by prescription But the Chauntry here in question is not a Chauntry by prescription for the beginning of it is known so it is a Chauntry in reputation only and not in facto And he said That in that case the rent limited to the sustentation of the Priest shall go to the King and not to the Land for the Land was not given for the sustentation of a Priest but the rent only so as the Land was not immediately imployed for the finding of the Priest And he resembled this case to the case lately in question upon the Statute of 31 H. 8. An Abbot was seized of a great Wood which was never imployed in kind to the use of the House being seven Miles distant from the House but was never in Lease but was yearly sold by parcels and the Woodward rendred an Account of the same to the Auditor And the Opinion was That a Lease for years made of it within a year before the Dissolution was not within the said Statute for it was not immediately imployed for Hospitality But see the same reported by the Lord Dyer to the contrary 3 4 Eliz. 207. that such a Demise was void although that the Wood was not immediately imployed c. And see also the words of the Statute scil That the Land shall be in the actual Possession of the King in as ample manner as the Priest had it and the Priest had nothing in the Land but only in the Rent It was adjorned to be further argued c. Temps Roign Eliz. CCLXVI. Harveys Case HArvey seized of a Manor made a Feoffment thereof to divers persons to the use of himself for life and after to the use of his Son and the Heirs Males of his Body and if the said Son or any of the Heirs males of his Body discontinue or alien otherwise than for 21 years or three lives that then his Feoffees should be seized to the use of Nic. Harvey his Brother in Fee the Feoffor dyed the Son made a Lease for 21 years and afterwards discontinued against the Proviso if that lease should bind Nic. Harvey who came in by the latter use c. Dyer It is hard to avoid the lease for at the time of the making of it the lessor had a good interest and authority to make the lease and the act which impeacheth the Estate of the lessor commenceth after the lease by the discontinuance and therefore shall not avoid the lease Manwood The second use doth determine the first use and all Estates derived out of it Mounson contr ' For here this word Otherwise than for 21 years c so as such a lease is excepted As if a man man makes a Feoffment in Fee to the use of J. S. and his Heirs until J. D. shall pay to him 20 l. and then to the use of J. D. and his Heirs here if J. S. makes a a lease for years and afterwards the Monies are paid to J. D. now J. D. shall hold the Land discharged of the lease for there is no word Otherwise c. for these words Otherwise qualifie the second use Dyer The word Otherwise amounts to an Exception Manwood doubted of it and moved and demanded if the wife of the Cestuy que use should have Dower or not Barham conceived that she should c. CCLXVII Mich. 31 Eliz. In the Common Pleas. TEnant in Socage made a lease for four years and dyed his Heir within age of 8 years the Mother being Guardian in Socage leased by Indenture to the same lessee for 14 years It was holden that in this Case the first lease is surrendred but otherwise it is of a lease made by Guardian in Nurture CCLXVIII Mich. 29 Eliz. In the Common Pleas. IN Debt it was found for the Plaintiff 20 Eliz. and 21 Eliz. the Plaintiff released to the Defendant and the continuance was made until this Term scil Mich 29 Eliz. per Curiam advisare vult And now the Plaintiff against his own Release prayed and had Iudgment A Release pleaded after Judgment and Verdict without any knowledge to the Defendant and Process of Execution issued and now Walter a Clerk of the Court on the behalf of the Defendant shewed the Release to the Court and also the whole special matter and prayed the Release of the Court against this practice Anderson presently granted a Supersedeas But afterwards before the Process issued forth he and the other Iustices were of Opinion That the Defendant could not plead the said Release nor any further matter after Verdict and demanded the question of Nelson chief Prothonatory who advertised the Court That he could shew a President where an Arbitrement had been pleaded after a Verdict and Issue joyned upon it and that
he is not to have Damages because the Waste was not to his disinheresin and the Land he shall not recover against the Defendant for the Term is not determined and such was the Opinion of the Court. As to the matter in â—aw Shuttleworth said That the Action of Waste ought to be brought against the Lessee himself and not against the Assignee for when he grants over his Term excepting the Trees it is a good Exception for when the Land upon which the Trees grow is leased to another the Trees pass by the Lease as well as the Land and the property of them is in the Lessee during the Term by which when he grants his Land he may well except them as the first Lessor might have done and if the Lessee for years cutteth down the Trees the Lessor cannot take them for that he hath other sufficient remedy scil an Action of Waste Fenner and Walmsley contrary And they conceived that the Lessee had but a special Property in the Trees scil for Fire-bote Plough bote House-bote c. But if he demiseth the Land or granteth his Interest in it he cannot except the Trees nor his special Property in them no more than he who hath Common appendant may grant the Land excepting the Common And in such case the general Property in the Trees remains in the Lessor as parcel of his Inheritance And this appeareth by many cases 27 H. 8. 13. Lessee for life and he in the remainder joyn in a lease for life the Lessee commits Waste the Tenant for life and he in the remainder joyn in an Action of Waste the Tenant for life shall recover the place wasted and he in the reversion all the damages Vide 2 H. 7. 10 H. 7. cited before That the Lessor may licence the Lessee to cut the Trees which proves that the Property is in him And Vide 40 Ass 22. the Lessor shall have the Windfalls And as to that which hath been said That by the Exception of the Trees the Soil it self is also excepted that is true as to the Trees for nourishment and not otherwise for if the Lessor cutteth down the Trees or roots them up he shall not after meddle with the Land where c. but the Soil shall be entirely to the Lessee The Lessor during the Term may grant the Trees so cannot the Lessee therefore the greater and better Property in the Trees is in the Lessor and not in the Lessee and the Trees proprie loquendo are not parcel of the thing demised If this Exception of the Trees or Woods should hold place Inconvenience would follow for as it is holden in 15 H. 7. 11. If the Termor of Wood commits Waste in one corner of the Wood he should not lose all the Wood but that place only But if in the said Wood there are divers Plats of Land in divers places of the Wood if the Termor commits Waste in that Wood he shall lose all the said Plats although he hath not done waste in them for they are parcel of the Wood. Vide Temps E. 1. Fitz. Waste 127. and Vide ibidem Waste 112. 8 E. 2. Waste done in parcel of an House the whole House shall be recovered Vide also 30 E. 3. Fitz. Amendment 67. and 4 E. 3. Waste 10. Now if that be Law and the Exception be good how shall the place wasted be recovered here and against whom It seemed to the Lord Anderson That the Exception was void and that the Action was brought against the Assignee and he said it was a knavish and foolish Demise and if it should be effectual in Law some Mischiefs would follow which he would not remember Windham was of the same Opinion and that the Lessee could not assign his Estate with such Exception for he hath but a special Interest in the Trees scil for Fire-bote Plough-bote c. which should go with the Land. Periam conceived That as to such special Property that none could have it but he who hath the Land and therefore the Exception is void but as to the Fruit-trees such an Exception might be good and although that the Trees are not expresly demised yet quodam modo and after a sort they may be said demised as annexed to the Land and if waste be brought against him who made the Exception scil the Lessee he cannot say they were not let to him and therefore he doubted of the Exception And Rhodes doubted also of the Exception and Anderson said that he was clear of opinion that the Lessor should have the Windfalls and afterwards the Case was adjorned to be further argued c. Temps Roign Eliz. CCLXX. Audleys Case Uses THe Lord Audley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerset and afterwards by Indenture reciting the said Feoffment and the date of it and also that it was to the intent that his Feoffees should perform his Will as followeth in effect viz My Will is that my said Feoffees shall stand seized to the use that the said Hoddy shall receive of the said Lands â—00 l which he had lent to the said Lord Audley and also to stand seized to pay all his Debts upon Bills signed with his hand and after â—he Debts paid that the Feoffees shall make an Estate of the said Lands to him the said Lord Audley and Joan his wife and to the heirs of their Bodies c. with divers Remainders over The said Lord Audley had Issue by the said Joan and also having Issue by a former wife a daughter the Feoffees never made any Estate to the said Lord and his wife and by the opinion of divers Iustices and Sages of the Law upon this matter no use was changed for it is not a last Will but an Intent and although that the Feoffees shall be seized to the use of the Feoffor and his Heirs because no consideration was wherefore they should be seized to their own uses yet the same could not make a new use to the said Lord and his wife in tail without conveying an Estate c. for the wife is a stranger to the Land and the same cannot be a Will or Testament for the Estate mentioned in the said writing ought to be made to the said Lord and his wife who could not take by his own Will and this matter was depending in the Chancery And the advise of the Iustices being there required they delivered their Opinions That by that writing no use was changed nor any use vested in the said Lord and his wife and a Decree was made accordingly until proof was made that such an Estate was made c. Trin. 29 Eliz. In the Common Pleas. CCLXXI. Walgrave and Somersets Case IN Trespass by Walgrave against Somerset the Case was That tenant at will cut down Trees and the Lessor brought Trespass vi armis And the Court was clear of opinion that the Action was well maintainable modo forma and Iudgment
the Land be holden of the Queen and so Nature cannot be transferred therefore neither this Proviso And so is the Tenure of Frankalmoigne 35 H. 6. 58. and it should be a great rigour to take the bridle out of the hands of the Natural Vncle into the hands of Iustice which is Manus regia And he cited the Case of the Lord Norris where it was rul'd That where the Act of Attainder of Norris gave to the King all Rights Titles c. yet a Writ of Error was not given thereby Manwood Actions are not expresly given by the said Act of Attainder As to the second point I conceive that the Coveyance is become void when the terms within the two years are passed and shall not expect until the two years be expired for the Inrollment ought to be within the term so that if all the terms of the two years be past it is now impossible for to inroll the Deed within the time limited by the Statute and then by 29 H. 8 the Conveyance is void and then is the Queen seized in Fee at the time of the making of the Lease by the Attainder of Sir Francis As to the Certificate without Office it is not sufficient to entitle the Queen to the Land and I deny the difference put by Popham between a Condition to be performed on the part of the Patentee and on the part of the King I confess that a Certificate to inform the Queen or her Councel of the quantity quality value c. of the Land is good without Office but not to entitle the Queen de novo to the Inheritance of another I grant that the Commission is of Record but the tender of the King is matter in pais and not of Record Three things ought to be observed in every Certificate to make it a good and lawful Certificate according to the course of the common Law unless it be in cases of necessity as in case of Ouster le mere c. 1. It ought not to be in the absence of the party 2. It ought to be pendente placito convocatis in ea parte convocandis 3. It ought to be directed to a known Officer but a thing certified by a private person being no Officer cannot be good Also a Certificate according to the course of the common Law being good is not traversable At another day the Case was argued by Egerton Solicitor for the Queen The Condition is given to the Queen by 33 H. 8. and also by 29 Eliz. and this Condition in it self is a general and ordinary Condition and rests not in privity and such an Act as may be made by any stranger as well as by Sir Francis himself scil the tender of the King. The reasons which moved Sir Francis to knit this Condition to the Conveyance were natural but the Proviso and the performance of it not tryed to Nature and therefore all the cases of privity are here out of Seisin As to the Lord Brays Case the same was not any Wardship but only an Order for the government or his Son and Heir for the Wardship of the Father in the Son is not a Chattel in him As to the Case of the Lord Norris the Writ of Error could not accrue to the Queen for by the Act of Attainder no Actions were given to the King And here is not any such privity as hath been pretended for by the words of the Proviso the Ring might be tendred to his Executors or Administrators therefore the Condition might be tendred when he is dead therefore without privity Title for alienation in Mortmain of Lands purchased by a Villain of the King or for a Condition broken are not in the King before Office But here the Condition is to be performed on the part of the Queen which her Royal Majesty cannot perform and therefore Commissioners are appointed to do it which they have done and upon the Commission retorned have informed the Queen of all the performance of it and all is now upon Record And there is a great difference between Certificates as in our case and Certificates which have been cited on the other side which are used to make Tryals upon Issues joyned betwixt party and party and in such Certificates I confess the Law as Cook hath argued The Sheriff is not known to be such an Officer but by his Commission under the Great Seal he upon a Writ of the King to him directed Summons Disseisins Attaches c. these are matters in fait but when the Sheriff hath retorned his Service then it is become matter of Record So in our case the retorn of the tender c. where the Queen is to be informed of the Lands of the Subject which she is to have there ought to be an Office but here the Queen is to do an act and that she hath done under the Great Seal by Commission by the Retorn of which she is in the whole matter therefore there needs not an Office to inform her of that which she her self hath done by another Authorized by her to do it And he said that the Leases made by the Queen being Tenant pur auter vie were not void ab initio but from the time of the two years but now the Estate of the Queen for life is determined therefore also the Leases derived out of it Exception hath been taken to the Information scil Praedictus Franc ' per Indenturam suam factam inter c. without saying sigillo suo sigillat ' that is good enough for facta esse non potuit nisi etiam sit sigillat ' therefore facta includes sigillat ' And afterwards Trin. 33. Eliz. this Case was argued by the Barons Clark puisne Baron said That Iudgment ought to be given for the Queen And first he said I conceive that here upon this Indenture is no use created in Sir Francis for he shall pay for a Licence of Alienation if the Lands be holden in chief and they themselves in pleading the uses say Virtute cujus the said Sir Francis was seized in his Demesne as of Freehold for his life the remainder thereof c. Although this Condition be tyed to Nature and rests in privity as hath been objected and so inseparable yet by Act of Parliament it may be transferred Impropriations Frankalmoign Frankmarriage Guardianship in Socage cannot be given away regularly but by Act of Parliament they may which vide for Impropriations by the Statute of 31 H. 8. Impropriations of Abbies and Priories dissolved nam Parliamentum omnia potest It may alter the nature of Lands make Gavelkind discendable according to the course of the common Law and so of Borough-English Attaint Error Disceit c. are Actions which lye in privity yet by Act of Parliament they may be transferred And in the case of the Lord Norris If the Act of Attainder had given to the Queen all Actions she might have had a Writ of Error And we see by experience That the
the whole matter is not any sufficient demand and so Wray Chief Iustice said CCLXXVIII Trin. 29 Eliz. In the Common Pleas. ACtion upon the Case was brought for these words Thou wouldst have stoln my Cloak if J.S. had not come in the way and thou art a Thief and I will prove it After Verdict it was found for the Plaintiff It was objected in Arrest of Iudgment That these words were not actionable For the first words Thou wouldst have stoln my Cloak c. do not by Law give any cause of Action and when the words subsequent Thou art a Thief are depending apon the said former words and to be construed as spoken in respect of them and upon that intent But the Opinion of the whole Court was to the contrary And that the said latter words should be taken and construed in abstracto by themselves as in gross and not as dependant upon the former words and afterwards Iudgment was given that the Plaintiff should recover Mich. 26 Eliz. In the Common Pleas. CCLXXIX Hungerford and Watts Case HUngerford brought an Action upon the Case againts Watts Words for that the Defendant had said That the Plaintiff had caused the Defendant to be arrested with forged Writs It was objected That the words were not actionable for it might be that the Writs were forged by strangers without the privity of the Plaintiff and that the Plaintiff not knowing them to be forged procured the Arrest But the Opinion of the Court was That the words were actionable for the word Caused extends as well to the Forgery as to the Arrest and so amounts to the slander of Forgery CCLXXX Mich. 19 Eliz. In the Common Pleas. Costs IN an Action upon an Escape the Plaintiff is Nonsuited It was holden that the Defendant should not have Costs Note The words of the Statute upon an Action upon the Statute of 23 H. 8. for any offence or tort personal to be supposed to be done immediately to the Plaintiff Notwithstanding this Action is quodam modo an Action upon the Statute 1. by Equity of the Statute of West 2. cap. 11. which giveth it expresly against the Warden of the Fleet Yet properly it is not an Action upon the Statute for in the Declaration in such an Action no mention is made of the Statute which see in the Book of Entries 169 171. and also here is not supposed any immediate personal offence or wrong to the Plaintiff And an Action upon the Case it is not for then the Writ ought to make mention of the Escape and that it doth not here and yet at the Common Law before the Statute of Westm 2. an Action upon the Case lay for an Escape and so by Dyer Manwood and Mounson Costs are not given in this Case And by Dyer upon Nonsuit in an Action upon the Statute of 8 H. 6. the Defendant shall not have Costs for it is not a personal wrong for the Writ is quod disseisivit which is a real wrong Mich. 29 Eliz. In the Common Pleas. CCLXXXI Hollingshed and Kings Case HOllingshed brought Debt against King and declared That King was bound to him in a Recognisance in 200 l. before the Mayor and Aldermen of London in interiori Camera of Guildhall in London Vpon which Recognizance the said Hollingshed before brought a Scire Facias before the said Mayor c. in exteriori Camera and there had Iudgment to recover upon which Recovery he had brought this Action and upon the Declaration the Defendant did demur in Law because that the Plaintiff in the setting forth of the Recognizance had not alledged That the Mayor of London had authority by Prescription or Grant to take Recognizances and if he had not then is the Recognizance taken coram non Judice and so void and as to the Statute of Westm 2. cap. 45. the same cannot extend to Recognizances taken in London which see by the words De his quae recordata sunt coram Cancellario Domini Regis ejus Justiciariis qui recordum habent in rotulis eorum irrotulantur c. and also at the time of the making of that Statute the City of London had not any Sheriffs but only Bayliffs And the Statute ordains That upon Recognizance Process shall go to the Sheriffs c. therefore not to them But the whole Court was clear to the contrary for we well know that they of London have a Court of Record and every Court of Record hath authority incident to it to take Recognizances for all things which do concern the Iurisdiction of that Court and which arise by reason of the matters there depending Another matter was Objected for that the Recognizance was taken in interiori Camera but the Court was holden in exteriori Camera therefore it was not well taken But as to that Anderson Chief Iustice said Admit that the Recognizance was not well taken yet because that in a Scire Facias sued upon it the Defendant shall not take any advantage he shall be now bound by that admittance As if one sues a Scire Facias as upon a Recognizance whereas in truth there is not any such Recognizance and the party pleads admitting such Record and thereupon Iudgment is given against him the same is not void but voidable And Fleetwood Recorder of London alledged many Cases to prove the Courts of the King ought to take notice that those of London have a Court of Record for if a Quo Warranto issueth to the Iustices in Eyre it doth not belong to them of London to claim their Liberties for all the Kings Courts have notice of them And at the last after many Motions the better Opinion of the Court was That the Plaintiff should recover Periam aliquantum haesitavit And it was said by Anderson and in a manner agreed by them all That if dependant this Demurrer here the Iudgment in London upon the Scire Facias is reversed yet the Court here shall proceed and take no notice of the reversal CCLXXXII Mich. 20 Eliz. In the Common Pleas. A Man seized of a Barn in which the Tythes of certain Lands have used to be inned let the same by these words Demises .. Demise and to Farm-let the Barn with all Tythes belonging to the same It was holden That by that Demise the Tythes did not pass but Tythes which had usually been demised with the Barn passed by such words as by the Demise of an House Cum omnibus terris eidem pertinent ' all the Lands pass which have used to be demised with the said House for the demising usually of the Tythes with the Barn makes the Tythes belonging to the Barn but not the Inning Mich. 30 Eliz. In the Common Pleas. CCLXXXII Haltons Case Recognisance Inrollment A Recognizance was acknowledged before J. S. who was one of the Masters of the Chancery and before the same was Inrolled the Conusee dyed the point was whether at the request of the Executors
of the Conusee it might now be Inrolled It was the Opinion of all the Iustices That upon the request aforesaid it might be Inrolled like as it was of a Conusance of a Fine taken before a Iudge which may be removed out of his hands by a Certiorari although it be not a Record before that it be certified in the speaking of that Case It was made a question whether the Court of Chancery might help a man who purchased Lands for valuable Consideration where there wanted the words Heirs in the Deed of Purchase or not but the point was not resolved But in that Case it was agreed by all the Iustices That after a Fine is levied of Land Chancery Attornment that the Chancery may compel the Tenant of the Land to Attorn And so where an Annuity or Rent is granted to one for life or in Fee and the Deed is Executed Sealed and Delivered but no Seisin is given to the party of the Rent or Annuity the Court of Chancery may decree a Seisin of the Rent to be given and the Rent to be paid to the Grantee and that was said to have been often times decreed in the said Court of Chancery CCLXXXIV Mich. 30 Eliz. In the Common Pleas. Intrusion Trespass NOte by Anderson Chief Iustice If one intrude upon the Possession of the King and another man entreth upon him that he shall not have an Action of Trespass for that Entry for that he who is to have and maintain Trespass ought to have a Possession But in such Case he hath not a Possession for every Intruder shall answer to the King for his whole time and every Intrusion supposeth the Possession to be in the King which all the other Iustices agreed except Periam who doubted of it And Rhodes Iustice said and vouched 19 E. 4. to be that he cannot in such Case say in an Action of Trespass Quare Clausum suum fregit CCLXXXV Mich. 29 Eliz. In the Common Pleas. NOte It was holden by Popham Chief Iustice Remainder and so said by him to have been resolved upon a Special Verdict in the County of Somerset 20 Eliz. That where a Lease was made unto Husband and Wife for their Lives the remainder to the Heirs of the Survivor of them that the same was a good remainder notwithstanding the incertainty and that in that case after the death of the Wife he should have Iudgment to recover the Land. But if a man be possessed of a term for 20 years in the right of his Wife and he maketh a Lease thereof for 10 rendring rent to him his Executors and Assigns and dyeth that in such case though the Wife surviveth yet he shall not have the rent because that she cometh in paramount the Lease But if a man be possessed of a term in the right of his Wife Mortgage and Mortgageth for payment of a certain Sum of Money at a day certain and before the day the Wife dyeth and the Husband payeth the Money at the day and then dyeth whether his Executors or the Administrators of the Wife should have the term was not then resolved Ideo Quaere that Case Trin. 32 Eliz. In the Exchequer CCLXXXVI Bartase and Hinds Case NOte Manwood Chief Baron gave it for a general Rule for all Counsellors at Law That they did not advise any Collectors of Subsidies or Fifteens to exhibit Bills in the Exchequer Chamber for the Non-payment of Subsidies c. for such Bills should not be allowed hereafter because they had remedy by Distress Also it was holden That if any be assessed for the Fifteen which he ought to pay or if two Towns are to pay together and the one Town be taxed more than it ought to be or had been accustomed those which are grieved by such Sesment may have a Commission out of the Exchequer which is called Ad aequaliter taxand ' and that was put in ure in a Case between Bartase and Hind where one of them was Lord of the Town of Little Marloe and the other of Hedford And it was also holden That Fifteens are to be levied of Goods and Chattels properly and one Township sometimes is richer than another and therefore it is not reason that they pay their Fifteen always according to the same proportion But by Clark Baron where the Custom hath been that the Fifteen should be taxed according to the quantity of Acres there the Rate and Purport shall be always one whosoever holds the Land and as to the Commission Ad aequaliter taxand ' Manwood and Fanshaw said That they could shew above twenty Presidents of it Mich. 17 18 Eliz. In the Kings Bench. CCLXXXVII Barnard and Tussers Case Debt BArnard recovered in a Scire Facias upon a Recognizance against Tusser and afterwards brought an Action of Debt upon the same Recovery and it was adjudged maintainable notwithstanding that it was Objected That the Iudgment in such Scire Facias is not to recover Debt but to have Execution of the Iudgment And by Wray Chief Iustice If in a Scire Facias to have Execution of an Annuity the Plaintiff hath Iudgment upon such Iudgment he shall have an Action of Debt Mich. 17 18 Eliz. In the Kings Bench. CCLXXXVIII The Earl of Arundel and Bradstocks Case THe Case was The Earl of Arundel let Lands to Bradstock for years upon condition that the Lessee should not do any Act by which his Goods and Chattels might be forfeited Bradstock committed Felony and before any Attainder he obtained his Charter of Pardon It was holden in this case That the Earl might lawfully enter but if the words of the Condition had been Whereby the Goods ought to be forfeited chen it had been otherwise for before Attainder they ought not to be forfeited Mich. 17 18 Eliz. In the Kings Bench. CCLXXXIX Taylors Case Outlawry How avoided by Plea in Person TAylor was Outlawed in Debt and a Supersedeas of Record was delivered to the Sheriff before the awarding of the Exigent It was holden that the party should avoid the same by Plea then it was moved if the Plea should be pleaded by Attorney or in Person To which it was said by Manwood That where matter in fait is pleaded in avoidance of an Outlawry it ought to be pleaded in Person but matter of Record by Attorney And Ford Prothonotary said It was so agreed in Sir Thomas Chamberlains Case in 7 Eliz. and so it was adjudged in this Case CCXC. Mich. 17 18 Eliz. In the Kings Bench. THe Case was The Prior of Norwich made a Lease for life by Indenture by which the Lessee covenanted to find Victuals to the Cellerer at all times when the Cellerer came thither to hold Court the Priory was dissolved and the Possessions given to the Dean and Chapter newly erected It was holden in this case That the Lessee should perform that covenant to him who supplyed the Office of Cellerer scil the Steward And
it was also holden That the Lessee should have an Action of Covenant against the Assignee of his Lessor or his Lessee at his Election CCXCI. Mich. 19 20 Eliz. In the Kings Bench. A. B. C. three Ioyntenants give their Lands to D. in tail Joyntenants the remainder to A. in tail It was the opinion of Mead That the remainder is void Manwood and Harper A. and B. Ioyntenants Grants A. makes a Lease for life of his Moiety to C. and grants the reversion to B. the same is good quod Curia concessit A. and B. Ioyntenants of a Term A. grants his Moiety to his Companion the same is good without question if it be by Deed but if it be by Word Quaere Hil. 20 Eliz. CCXCII Hills Case HIll 20 Eliz. Rot. 371. Giles Hill seized of a Close of Pasture called Pitmonde and of Broome Acre two other Closes in his Demesne as of Fee and so seized the said Giles and Agatha his Wife and Robert their Son and B. his Wife by Indenture leased the same Broome Acre and the said other two Closes to W. Hutchin and B. and his Wife for 90 years Si quis eorum tam diu vixerit reddendo inde annuatim praedicto Egidio Uxori ejus Haeredibus ipsius Egidij viz. pro Broome Acre 3 s. 4 d. pro una Clausura 10 s. pro altera 20 s. ad quatuor anni Terminos with Clause of Re-entry If any part or parcel of the said rent be behind c. Giles and Agatha dyed The Son sold the reversion of Broome Acre 12 Febr. 12 Eliz. by Deed Indented rendring rent to Smith and Heale the rent of Broome Acree is behind Smith and Heale enter and lease the same to Reynolds for three years who being Ejected brings Ejectione firmae and Iudgment was given for him for that they are several Reservations and several Conditions And a difference was taken between this and Winters Case for in Winters Case the rent reserved originally is entire but in this Case the rent is originally several and also in Winters Case the condition was That if any part of the rent be behind that the Lessor should re-enter into the whole Note that the rent reserved for Broome Acre was 3 s. 4 d. and the condition was si contingat praedict ' reddit ' ou ascun parcel de ceo to be behind in part or in all by one Month after any Feast c. in quo solvi debuit Quod tunc bene licebit praefat ' Egidio c. in omnia singula praemista superius specificat ' re-entrare Et nomine That pro 10 de nariis pro Broome Acre pro uno quarterio anni aretro existent the Vendees of the Reversion did enter CCXCIII Mich. 19 Eliz. In the Common Pleas. Leases NOte by Dyer and Manwood Iustices A. leaseth to B. for years the remainder to the right Heirs of the said B. and makes Livery accordingly that the said remainder is void because that there is not any person in esse who can take presently by the Livery and every Livery ought to have its operation presently But where a Lease is made to B. for life the remainder to his right Heirs that he hath a Fee executed and it shall not be in abeyance and Iudgment was given accordingly CCXCIV. Hil. 23 Eliz. In the Common Pleas. THe Case was a Man made a Lease of a Garden containing three Roods of Land the Lessee is ousted and he brought Ejectione firmae and declared That he was Ejected of three Roods of Land And by Rhodes Serjeant The Declaration shall not be intended that the Plaintiff was Ejected out of the Garden of which the Lease was made which Dyer granted for Gardinum is a thing which ought to be demanded by the same name in all Praecipe's And this Action of Ejectione firmae is higher than an Action of Trespass and the Plaintiff if he recover shall be put into possession by it Mead and Windham held the contrary and they agreed That in all real Actions a Garden shall be demanded by the name of Gardinum But this Action of Ejectione firmae is in the nature of Trespass and it is in the Election of the party to declare as he doth or for to declare of the Ejectment of a Garden For a Garden may at one time be used for a Garden and at another time for Plough-Land But they conceived the better course to be and the better order of pleading to have been if the Plaintiff had declared That he was Ejeected of a Garden containing three Roods of Land as in the Lease it is specified Vide 22 E. 4. 13. Assise of a Garden Vide Cook 11 Part Savells Case Ejectione firmae of a Close vocat ' Leedes containing three Roods a Rule that such Action lyeth not of a Close although it hath a certain name but it ought to be of so many Acres and of what nature every Acre is CCXCV. Mich. 19 Eliz. In the Common Pleas. AN Action of Debt was brought by an Administrator who declared That the Administration was committed unto him by the Archbishop of Canterbury It was holden That in such Case he needed not to declare Ratione Praerogativae suae or that the Intestate had bona notabilia in divers Dicocesses for if the Intestate had not Goods in divers Diocesses the same shall come and be shewed on the other side and then the Plaintiff shall shew the same in certain and to that purpose divers Presidents were shewed to the Court by Sandbege and Best principal Clerks of the Court and the same was also affirmed by the Prothonotaries of the Court of Common Pleas. CCXCVI. Mich. 19 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared upon Trover and Conversion to his use It was pleaded by Plowden That the Defendant before the Action brought had lawfully sold the Goods whereof c. and he demanded Iudgment of the Action As if one hath Goods by Trover and Bails them over before any Action brought against him Detinue doth not lye against him which Wray Chief Iustice concessit as to the Detinue But where such a person who hath Goods by Trover Bails them quibusdam ignotis such an Action will lye against him CCXCVII. Mich. 19 Eliz. In the Common Pleas. IN a Writ of Dower the Demandant recovered by default Retorn of the Sheriff and the Sheriff took an Enquest de Officio by which it was found that the Husband did not dye seized prout eis constare poterit and that Inquisition is retorned by the Sheriff and filed It was moved by Mead That the Office and Inquisition was not good for the Office ought to have expresly found That the Husband dyed seized or not and not ambiguously as it doth here prout eis constare poterit and therefore by the Award of the Court the Retorn was taken off the File because it was insufficient
and a Writ de novo awarded CCXCVIII A. Is bound to B. upon Condition to stand to the Arbitrement of certain persons who award that B shall make a Release to A. of all Actions Debts Duties and Demands at the request of A. and afterwards A. comes to B. and requires him to make him a Release who said to him That he was unlearned and that he would go to one to make it and the next day after the request he seals and delivers it to A. who accepts of it It was holden by Windham and Mead That notwithstanding that Acceptance the Obligation was forfeited for they said That presently after request he ought to have done it in the speediest manner that might be Vide acc ' 15 E. 4. 31. Vide also Wottons Case 16 Eliz. Dyer 338. Mich. 26 Eliz. In the Common Pleas. CCXCXI The Dean and Chapter of Christ Church and Parotts Case Grants of the King. NOte in the Common Pleas in a Case between the Dean and Chapter of Christ Church in Oxford and Parott It was holden by the Iustices that if the King grants Lands unto a Corporation by another name than that which they were named before yet the Land shall pass and the Letters Patents shall be to them as a new Incorporation c. Mich. 19 Eliz. In the Common Pleas. CCC Beechers Case Jurors BEecher being a Gentleman of the Middle-Temple was Retorned in an Attaint and before the Retorn of the Pannel he became a Minister of the Church and now at the day of the Retorn he appeared and prayed to be discharged according to the Priviledge of those of the Ministry But the Court would not allow of his prayer because that at the time of the Pannel made he was a Lay-man Wherefore he was sworn one of the Iury. Hil. 19 Eliz. In the Kings Bench. CCCI. Vernon and Sir Thomas Staveleys Case TEnant in Tail made a Lease for the life of the Lessee according to the Statute of 32 H. 8. Discontinuance and by Wray and Gawdy Iustices the same was not a Discontinuance But if Tenant in Tail levyeth a Fine which bindeth his Issue by the Statute of 4 H. 7. 32 H. 8. that same is a Discontinuance Look upon the Statute of Leases and of Fines the words in the former are scil Such Fines shall be good and effectual in the Law but in the other scil Such Fines shall be a bar against the Conusor and his Heirs And if Tenant in Tail after such a Fine dyeth without Issue the Donor cannot enter but is put to his Formedon And as to the principal Case Dyer agreed in opinion with Wray and Gawdy Trin. 28 Eliz. Rot. 1027. CCCII Milborne and the Inhabitants of Dunmowes Case MIlborne brought an Action upon the Statute of Winchester against the Inhabitants within the Hundred of Dunmow in the County of Essex It was found by Special Verdict Upon Statute of Hue and Cry. That the Plaintiff was robbed the 23 of April inter horam secundam Matutinam tempore Nocturno ante Lucem ejusdem diei and the Opinion of the Court was clear That the Plaintiff should be barred for the said Statute provides for ordinary Travel as in the case of Archpole who came to his Inn after Sun-set ante Noctem in tempore diurno which is an usual time for Travellers to come to their Inn but the Law doth not receive any in protection of this Statute which travel in extraordinary hours for it is the folly of the traveller to take his journey so out of season and the inhabitants are not bound to leave their houses and attend the high-ways tempore Nocturno And another reason was alledged by the Iustices because that the said Statute appoints Watch to be kept in the time of night à festo Assensionis usque festum Sancti Mich. and this Robbery was done the 23 of April so out of the said time And afterwards Iudgment was given against the Plaintiff CCCIII. Hil. 29 Eliz. In the Common Pleas. Devises SErjeant Fenner demanded the Opinion of the Court upon this Case A. devised Lands to his Wife for life and afterwards to B. his Son and his Heirs when he should come to the age of 24 years and if his Wife dyed before that his said Son should attain to the said age of 24 years that then J S. should have the said Lands until the said age of the said Son A dyed J. S. dyed the Wife dyed the Son being within the age of 24 years If the Executors of J. S. should have the Lands after the death of J. S. until the said age of the Son was the question Anderson and Periam conceived that he should not for this Interest limited by the Will to J. S. was but a possibility which was never vested in him and therefore could not by any means come to his Executors Rhodes and Windham doubted of it And Fenner put the Case 12 E. 2. Fitz. Condition 9. where Land is Mortgaged to J. S. upon payment of Money to the said J. S. or his Heirs such a day and before the said day J. S. by his Will deviseth That if the Mortgagor pay the Money that then A. B. shall have them that this Devise of that possibility is good which Case all the Iustices denied And Windham put the Case between Welden and Elkington 20 Eliz. Plowd 519. where Lessee for years devised his term to his Wife for so many of the years of the said term as she should live and if she dyed within the term that then his Son Francis should have the residue of the years not incurred Francis dyed intestate the Wife dyed within the term the Administrator of Francis had the residue of the term and yet nothing was in Francis the intestate but a possibility A Lease was made to one Hayward his Wife and one of his Children Habendum to Hayward for 99 years if he so long live and if he dye within the said term that then the said Wife should have the said term for so many of the years as should be to come at the time of the death of her Husband and if she dyed also within the said term that then the Child party to the Demise should have the same for so many of the years of the said term as should be not expired at the time of the death of the Wife And the case of Cicell was cited Dyer 8 Eliz. 253. A Lease was made to William Cecill pro termino 41 annorum si tam diu vixerit Et si obierit infra praedictum terminum extunc Eliz. uxor praedict Will Cicell habebit tenebit omnia singula praemissa pro residuo termini praedict incompleti si tam diu vixerit Et si praedict Eliz. obierit infra terminum praedict Tunc Willielmus Cicell the Son c. shall have and hold it pro residuo termini praedict completi And it was holden by Catlin and
infra Messuagium praedict ' modo forma and thereupon it was demurred in Law for it was said That the Defendant ought to have said Non usurpavit Libertates praedictas nec eorum aliquam for he ought to answer singulum and also he ought to have pleaded as well to the Manor as to the Messuage for if the Defendant hath holden Court within any place of the Manor it is sufficient And the Case 33 H. 8. Br. Travers sans ceo 367. was cited and Information was in the Exchequer That the Defendant had bought Wools of A.B. contrary to the Statute the Defendant pleaded That he had not bought of A. B. and the Plea was not allowed for he ought to have said That he had not bought modo forma for if he had bought of A. B. or J. S. the same is not any matter nor traversable which Cook denied to be Law And he conceived also that the Information upon the Quo Warranto is not sufficient for by the same the Defendant is charged to hold a Court and it is not shewed what Court and it may be it was a Court of Pypowders Turn c. And Vide 10 E. 4. 15 16. a Quo Warranto contains two things 1 Claim 2. Vsurpation And here the Defendant hath answered but to the Vsurpation and it hath said nothing as to the Claim And it hath been holden here heretofore that he ought to make answer to both And it hath been holden in a Reading upon the Statute de Quo Warranto which is supposed to be Frowicks Reading That a Quo Warranto doth not lye of such Liberties which do not lye in Claim as Goods of Felons c. which lyeth only in point of Charter CCCXIX. Temps Roign Eliz. THe Prior of Bath leased his Manor of A. to C. for life rendring rent and afterwards the Priory was dissolved the King leased the whole Manor cum pertinenciis to Sir Walter D. Kt. Dyer The matter depends upon this point If the Demesne be severed from the Services during the life of the Lessee And he conceived That the Lord cannot hold a Court if such a power be not reserved to him upon the Lease Weston The Manor nor is in suspence during the Lease for a Reversion upon an Estate for life and Services in possession cannot be united to make a Manor but contrary if but parcel had been leased Quod Curia concessit Welch The Demesnes are severed from the Services for ever as if they had been granted in Fee but here having regard to the Lessor the Demesnes and Services are united and made one Manor but as to the Lessee and all others the Services are in gross and of that Opinion was also Dyer And he said If a Bishop leaseth his Demesnes of his Manor for life and dyeth the Reversion shall be in his Successor and was in himself for his life in the right of his Church And if Husband and Wife seized of a Manor in the right of his Wife lease the Demesnes of the said Manor for life yet he hath the Reversion in the right of his Wife and in such Case it doth remain a Manor but if the Husband sole had made the Lease he had gained the Reversion to him and so severed it from the Manor CCCXX Temps Roign Eliz. Devises A. Devised that his Wife should take the Profits of his Lands until his daughter should come to the full age of 25 years and if the daughter dyed within the age of 18 years then his wife should have the Land for her life the remainder over to J. S. The daughter became of the age of 18 years and dyed before she came of the age of 20 years and Dyer held clearly That the Remainder was gone for the daughter accomplished and survived the age of 18 years And he said that the case late depending in the Kings Bench was this The Husband devised the Profits of his Lands to his Wife for 25 years and that then his Son should have it in Tail to him and to the Heirs of his Body c. now before the 25 years expired he hath Fee and if he hath Issue then his Estate is changed into Tail But by Carus he hath both Estates scil Fee-tail and Fee-expectant CCCXXI. Temps Roign Eliz. Surrenders A Woman Tenant in Tail made a Lease not warranted by the Statute took a Husband had Issue and dyed the Husband being Tenant by the Courtesie surrendred to the Issue It was holden that he should not avoid the Lease during the life of the Tenant by the Courtesie But yet some held That the Surrender ought to be by Deed as a Lease to A. for life the Remainder to B. for life the Remainder to C. in Fee if B. surrenders to C. it must be by Deed. CCCXXII Temps Roign Eliz. THe Case was this A. leaseth Lands to B. for years Extent rendring Rent with Clause of re-entry and afterwards Debt is recovered against him It was holden That now the Moiety of the Rent and the Reversion was extendable by Elegit and upon such Extent Condition suspended the Condition is suspended during the Extent as well in the Lessor as in the Party who hath the Extent Temps Roign Eliz. CCCXXIII Mitchell and Nordens Case Procedendo upon Aid-Prayer in Dower ELizabeth ' c. Dilectis Jacobo Dyer c. Monstravit nobis Elizabeth ' Mitchell quae fuit uxor c. Quod cum ipsa prosecuta fuit coram vobis sociis vestris c. Breve nostrum de Dote unde nihil habet versus Thomam Norden c. Et praedictus Thomas venit dixit Quod vir praedictae Elizabethae was seized and leased to him for life with warranty and for that cause he vouched to warranty Tristriam ' Mitchell Filium Haeredem dict' Richardi infra aetatem existen ' in Custodia eo quod dictus Richardus die quo obiit c. Et hoc paratus est verificare Unde non intendit quod vos praefati Justiciarii nostri nobis inde inconsultis ulterius procedere velletis Et petiit auxilium de nobis habuit Et super hoc dies datus est tam praefatae Eliz. quam dict Tho. Norden à die Pasc c. Et dictum fuit praefatae Eliz. Quod sequatur penes vos quarum quidem allegatione praetextu vos in placito praedict ulterius procedere distulistis adhuc differtis in ipsius Eliz. dispendium gravamen Et super hoc eadem Eliz. venit hic coram nobis in Cancellaria nostra Et petit Breve nostrum de Procedendo inde in hac parte vobis dirigend ' Super quo quaesita fuit in eadem Curia Cancellariae nostrae à Gilberto Gerrard Attornato nostro generali qui pro nobis in hac parte sequitur si quid dicere scivit aut potuit per quod dict' Tristriamus infra aetatem in custodia nostra
Bayliff of his Lord could not do better than admonish the said Bayliff of his duty for it concerned the Honour of his Master and also his Inheritance in the said Liberty But if the said Townsend had been a meer stranger to the said Earl so as no such privity had been betwixt them the same had been clearly Maintenance in Townsend as it was lately adjudged in that Court in the case of one Gifford where the parties being at Issue and a Venire Facias to the Sheriff to retorn a Iury a stranger wrote to one of the Iurors who was retorned in the Pannel praying him to appear at the day and to do in that cause according to his Conscience and the same was adjudged Maintenance And afterwards upon full hearing of the cause the said Townsend by the Sentence of the Court was acquitted of any Maintenance with great allowance and approbation of many Lords of the Counsel there present Bromley Cancellario tantum exclamante CCCXXVII Mich. 15 16 Eliz. In the Common Pleas. IN a Writ of Partition the Defendant prayed in Aid the Plaintiff counterpleaded the Aid upon which Issue was joyned and found for the Plaintiff It was the Opinion of the Court That it was peremptory for the Defendant And the Plaintiff shall have the Partition scil Quod fiat Partitio and the reason thereof is for the delay of the Plaintiff and for the vexation of the Country who are to try it otherwise it had been if it had been adjudged against the Defendant upon a Demurrer CCCXXVIII Mich. 21 Eliz. In the Kings Bench. IN a Formedon of a Manor the Tenant pleaded Ioynt-tenancy by Fine with J. S. The Demandant averred the Tenant sole Tenant as the Writ supposed and upon that Issue was joyned and found for the demandant Vpon which a Writ of Error was brought and Error assigned in this That whereas upon Ioyntenancy pleaded by Fine the Writ ought to abate without any Averment by the Demandant against it the Averment hath been received against the Law And by Southcote at the common Law If the Tenant plead Ioyntenancy by Deed the Writ should abate without any Averment but that was remedied by the Statute of 34 E. 1. but Ioyntenancy by Fine doth remain as it was by the common Law for he hath punishment enough in that because by that Plea if it be false he hath by way of conclusion given away the Moiety of the Land in demand to him with whom he hath pleaded Ioyntenancy and the Law doth not intend that he will so slightly depart with his Land for the abatement of a Writ Else in a Praecipe quod reddat the Tenant confesseth himself to be Villain to a Stranger the Writ shall abate without any Averment of Frank-estate for the Law intends that the Tenant will not enthrawl himself without cause Wray to the same intent But the Demandant may confess and avoid the Fine as to say That he who levied the Fine was his Disseisor upon whom he hath before entred c. And if Tenant in Fee-simple be impleaded and he saith he is Tenant for life the Remainder over to A. in Fee and prayeth in Aid of A. the Demandant shall not take Averment That the Tenant the day of the Writ brought was seized in Fee. Note That in this Fine Ioyntenancy was pleaded but for parcel and it was holden by â—ray and Southcote That the whole Writ should abate as in a Writ against many the misnosmer of the one shall abate the whole Writ against all the Defendants and so where the Demandant enters into parcel of the Land in demand if the Land in demand be one entire thing it shall abate the Writ in all In this Case the Demandant ought to have in his Writ a Foreprise of the Land parcel of the Land in demand whereof the Ioynt-tenancy by Fine is pleaded for this dismembring of the Manor and destruction of the Land whereof the Ioyntenancy is pleaded is peravail and beneath the Gift whereof the Formedon is conceived and therefore in respect of the title of the Demandant it remains in right parcel of the Manor and therefore it ought to be demanded accordingly with a Foreprise But if A. gives to B a Manor except 13 Acres in Tail there if after upon any Discontinuance the Issue in Tail is to have a Formedon in such Case there needs not any Foreprise for the said 10 Acres were never severed from the Manor upon the Gift But if Land in demand be several as 20 Acres but two this Foreprise is not good Vide Temps E. 1. Fitz. Br. 866. Praecipe unam bovat ' terrae except a Selion and the Writ was abated for every demand ought to be certain but a Selion is a parcel of Land uncertain as to the quantity in some places it is an Acre in some more and in some less Another point was That because that the Tenant hath admitted and accepted this Averment scil Sole Tenant as the Writ supposeth if the Court notwithstanding the admittance of the Tenant ought without exception of the party ex Officio abate the Writ And Wray conceived that it might for it is a possitive Law As if a Woman bring an Appeal of Murder upon the death of her Brother and the Defendant doth admit it without Challenge or Exception yet the Court shall abate the Appeal 10 E. 4. 7. And Vide the principal Case there Non ideo puniatur Dominus And if an Action be brought against an Hostler upon the common Custom of the Realm and in the Writ he is not named Common Hostler and the Defendant doth accept of such a Writ without any Exception unto it yet the Court shall abate the Writ ex Officio Vide 38 H. 6. 30. CCCXXIX Mich. 21 Eliz. In the Kings Bench. NOte this Case A. makes a Feoffment in Fee to B. and binds himself only to warranty without more B. is impleaded and voucheth A. who enters into the Warranty and loseth so as Iudgment is given against B. and also to recover in value against A. who before Execution dyeth It was the opinion of the Court that B. should have Execution in value against the Heir of A. CCCXXX Mich. 21 Eliz. In the Common Pleas. A. Seized of Lands in the right of his Wife for the term of the life of the Wife made a Feoffment in Fee to the use of his said Wife for her life In that case the wife is remitted and it is not like Townsends Case Plowd Com. 111. for in that case the Entry of the Wife was not congeable for she was Tenant in tail which Estate was discontinued by the Feoffment of her Husband Periam Iustice cited Siâ—enhams case Baron seized in the right of his Wife for the term of the life of the Wife They both surrendred and took back the Land to them and a third person And it was holden that the Wife was not presently remitted but after the death of her Husband
she might disagree CCCXXXI Mich. 21 Eliz. In the Common Pleas. A. B. and C. three Brothers A. hath issue and dyeth the middle Brother Purchaseth Land and deviseth the same to his Son in Tail and if he die without Issue that the Land shall remain to the King and Lineage of the Father sc of the middle Brother and if the Son of the eldest Son or the youngest Brother should have the Land was the Question and it was the opinion of the Lord Dyer That the Son of the eldest Brother should have it CCCXXXII Mich. 21 Eliz. In the Common Pleas. A Lease for life was made to B the Remainder to C. and D. in Tail It was holden that in this case C. and D. cannot disagree to that Remainder without matter of Record for they are Tenants in Common but if the Remainder had been limited to them in Fee so as they took joyntly it had been otherwise for then by the disagreement of the one the other shall take the whole Land. Mich. 32 Eliz. In the Kings Bench. CCCXXXIII Waite and Coopers Case IN Ejectione firmae between Waite and Cooper It was found by Verdict That Cranmer late Archbishop of Canterbury was seized of the Manor and Borough of Southwark in the right of his Bishoprick and that the Prior of Morton was seized of the House in which the Ejectment is supposed and held the same of the said Archbishop as of his said Manor and Borough after which 30 H. 8. the said Archbishop gave to the King the said Manor and Borough with confirmation of the Dean and Chapter and that the same year the said Prior surrendred by which the said King was seized as well of the said Manor and Borough as of the said House and afterwards the King by his Letters Patents gave the said House and other Lands in Middlesex and Essex to Curson and Pope in Fee tenend in Libero Burgagio per fidelitatem tantum non in Capite pro omnibus serviciis demandis And afterwards King Edw. 6. gave the said Manor and Borough to the Mayor and Commonalty of London Curson and Pope covey the said House to Welsh in Fee who dyed without Heir All the Question was What Tenure is here reserved upon the Words and Grant made by King Hen. 8. to Curson and Pope It was said It could not be a Tenure in Burgage because here is not any Rent reserved which see by Littleton 162 163 164. And the Lord Anderson at the first very strongly insisted upon that Another matter was because here is reserved for all the Lands and Tenements but one Tenure so that if the Court should adjudge the Tenure reserved to be Burgage then Lands at the Common Law out of Boroughs should be holden in Burgage Also a Tenure in Burgage cannot be created without these words ut de Burgagio And to that purpose Shute Iustice agreed Vide Br. Tenures 94. Mich. 29 Eliz. In the Kings Bench. CCCXXXIV Fullers Case NOte It is holden by the whole Court in Fullers case That if one give 300 l. to another to have an Annuity of 50 l. assured to him for 100 years if he his Wife and four of his Children so long shall live That this is not within the Statute of Vsury So if there had not been any Condition but care is to be taken that there be no Communication of borrowing of any Money before Trin. 30 Eliz. In the Kings Bench. CCCXXXV Goore and Winkfields Case 3 Leon. 223. DEbt upon an Obligation by Goore against Winkfield the Obligation was written in this Form Know all by these Presents That I H. Winkfield am bound to William Goore in the Sum of c. for the payment of which Sum I give full power and authority to the said Goore to keep the said Sum upon the Profits of the Bayliwick of Swinstall from year to year until the same be paid To which the Defendant pleaded That the Plaintiff had levied parcel of the said Sum c. and did not shew how much and therefore the pleading was holden not good And it was clearly agreed by the whole Court That the Plaintiff was at Liberty either to bring his Action upon the said Obligation or to levy the Debt according to the Clause aforesaid Pasc 26 Eliz. In the Kings Bench. CCCXXXVI Powley and Siers Case POwley brought Debt against Sier Executor of the Will of one A. The Defendant demanded Iudgment of the Writ For he said That one B. was Executor of the said A. and that the said B. constituted the said Defendant his Executor so as the Writ ought to have been brought against the Defendant as Executor of an Executor and not as immediate Executor of the said A. The Plaintiff replyed That the said B. before any probate of the Will or any Administration dyed and so maintained his Writ upon which the Defendant demurred Wray was for the Writ for although here be not any Probate of the Will of A. or any other Administration yet when B. makes his Will and the Defendant his Executor it is an acceptation in Law of the Administration and Execution of the first Will. Gawdy and Ayliff Iustices that the Writ was not good Vide 23 Eliz. Dyer 372. Mich. 19 Eliz. In the Kings Bench. CCCXXXVII Taylors Case TAylor was Outlawed in Debt where a Supersedeas upon Record was delivered to the Sheriff before the award of the Exigent It was holden that the Party should avoid the same by Plea Then it was moved If the Plea should be pleaded by Attorney or in Person To which it was said by the Iustices That where matter in fact is pleaded in avoiding of an Outlawry he ought to plead it in Person but matter of Record by Attorney And so Ford Prothonotary said it was agreed in the Case of Sir Thomas Chamberlain 7 Eliz. and so it ought to be in the principal Case here CCCXXXVIII Mich. 18 Eliz. In the Kings Bench. NOte It was agreed for Law in the Kings Bench if Lessee for years grant all his Estate and Interest to A rendring rent by Indenture and for default of payment a re-entry And the Grantor demandeth the rent and A. demands an Acquittance but the Lessee for years refuseth in such case A. may refuse to pay such rent for the rent is to be paid in this nature without an Acquittance but contrary if Lessee for years had leased parcel of his Estate rendring Rent with Clause of Re-entry c. CCCXXXIX Mich. 18 Eliz. In the Kings Bench. THe King seized of a Manor to which an Advowson is appendant a Stranger presented and his Clerk in by 6 Months It was holden that in such case the Grantee may present for the Advowson was always appendant and the Inheritance thereof passed to the Grantee for it was not made disappendant by the usurpation as in the case of a common person for the King cannot be put out of possession But the Patentee shall not have Quare Impedit
Tenants and therefore ought not to joyn c. It was Adjourned Temps Roign Eliz. In the Kings Bench. CCCLVII The President of Corpus Christi Colledge Case NOte It was holden by Cholmley Serjeant Plowden and many others in the Case of the President of Corpus Christi Colledge in Oxford That if the said Master or President of any such Colledge by his Will deviseth any Land to his Colledge and dyeth such Devise is void For at the time when the Devise should take effect the Colledge is without a Head and so not capable of such Devise for it was then an imperfect Body And so it was holden by the Iustices upon good advice taken thereof CCCLVIII Temps Roign Eliz In the Kings Bench. IN a Warrantia Chartae the Defendant said that the Plaintiff had not any thing in parcel of the Land the day of the Writ brought If in a Praecipe quod reddat the Tenant aliens and afterwards vouches the Vouchee is not bound to enter into the Warranty But here in this Case it may be That at the time that the Plaintiff requested the Defendant to warrant he was Tenant of the Land in which Case the warranty is attached and then if ever the Land be recovered against him he shall have this Writ and of this Opinion was Brown Iustice For the Land which the Defendant had at the time of the request is bound by the request but if he alieneth after the request he shall not have the Warranty CCCLIX Mich. 9 Eliz. In the Kings Bench. A Man seized of a Manor in which there are divers Copy-holds and the Custom there is That if any Copyholder leaseth his Land above the term of one year that he shall forfeit his Copyhold A Copyholder committed such a Forfeiture and afterwards the Lord leased the Manor for years and the Lessee entred for the Forfeiture and Weston said that his Entry was not lawful for although that the Heir may enter for a Condition broken in the time of his Ancestor because he is privy in blood yet the Lessee or Feoffee cannot do so for he is a Stranger such a one of whom an Estranger shall not take advantage Dyer If this forfeiture be preserved by Homage and enrolled in the Court Rolls the Lessee may well afterwards enter for by the forfeiture the Copyhold Estate is void and determined as if a Leafe for years be made rendring Rent upon Condition to cease if the Rent be not paid here presently by the not payment the Interest of the term is determined and of that the Grantee of the Reversion shall have advantage CCCLX Mich. 10 Eliz. In the Common Pleas. AN Action upon the Case was brought for stopping of a way The Plaintiff declared that the Duke of Suffolk was seized of a House in D. and let the same to the Plaintiff for life and that the said Duke and all those whose Estate c. have used time out of mind c. to have a way over the Land of the Defendant to the Park of D. to carry and recarry Wood necessary for the said House from the said Park to the same House and further declared That the Defendant Obstupavit the way It was moved by Carus That upon that matter no Action upon the Case lay because the Freehold of the House is in the Plaintiff and also the Freehold of the Land over which c. is in the Defendant But if the Plaintiff or the Defendant had but an Estate for years then an Action upon the Case would lye and not an Assize and it is not material If the Plaintiff had but an Estate for years in the Park quod fuit concessum per totam Curiam It was also holden That this word Obstupavit is sufficient without any more without shewing any special matter of the stopping as the erecting of any Gate Hedge Ditch c. for Obstupavit implyes a Nusance continued and not a personal disturbance as forestalling or saying to the Plaintiff upon the Land where c. that he should not go over or use the said way for in such case upon such a disturbance an Action upon the Case lyeth But as to a local and real disturbance the word Obstupavit amounts to Obstruxit and although in the Declaration is set down the day and year of the stopping yet it shall not be intended that it continued but the same day for the words of the Declaration are further By which he was disturbed of his way and yet is and so the continuance of the disturbance is alledged and of that Opinion was the whole Court. Leonard Prothonotary He hath declared of a Prescription habere viam tam pedestrem quam equestrem pro omnibus omnimodis Carriagiis and upon that Prescription he cannot have a Cart-way for every Prescription est stricti juris Dyer That is well observed and I confess that the Law is so and therefore it is good to prescribe habere viam pro omnibus Carriagiis without speaking either of a Horse or a Foot-way CCCLXI. A. Enfeoffed B. to the intent that B. should convey the said Land to such person as A. should sell it A. sold it to C. to whom B. refused to convey the Land and thereupon he brought an Action upon the Case against B. And by Wray Chief Iustice and Gawdy Iustice here is a good consideration for here is a trust and that which is a good consideration in the Chancery is in this case sufficient Shute Iustice was of a contrary Opinion And afterwards Iudgment was given for the Plaintiff Mich. 29 Eliz. In the Common Pleas. CCCLXII Sir Richard Lewknors Case SIr Richard Lewknor seized of Wallingford Park Ante 162. made a lease thereof for years and dyed the Lessee granted over his term to another excepting the Wood the term expired and an Action of Waste was brought against the second Lessee by the Coparceners and the Husband of the third Coparcener being Tenant by the Courtesie Shuttlewood and Snag Serjeants did argue That the Action would not lye in the form it was brought and the first Exception which was taken by them was because the Action was general viz. Quod fecit vastum in terris quas Sir Roger Lewknor pater praedict ' of the Plaintiff cujus haeredes ipsae sunt praefat ' Defendent demisit And the Count was that the Reversion was entailed by Parliament unto the Heirs of the Body of Sir Richard Lewknor and so they conceived that the Writ ought to have been special cujus haeredes de Corpore ipsae sunt For they said that although there is not any such Writ in the Register yet in novo Casu novum est apponendum remedium And therefore they compared the Case to the Case in Fitz. N. B. 57. viz. If Land be given to Husband and Wife and to the Heirs of the Body of the Wife and the Wife hath Issue and dyeth and the Husband committeth waste the Writ in that case and the like
shall be special and shall make special recital of the Estate And so is the Case 26 H. 8. 6. where Cestuy que use makes a lease and the Lessee commits waste there the Action was brought by the Feoffees containing the special matter and it was good although there was not any such Writ in the Register cujus haeredes de Corpore and we are not to devise a new form in such case but it is sufficient to shew the special matter to the Court. And the words of the Writ are true for they are Heirs to Sir Roger Lewknor and the Count is sufficient pursuant and agreeing to their Writ for they are Heirs although they are not special Heirs of the Body and so the Court was of Opinion that the Writ was good notwithstanding that Exception And Anderson and Periam Iustices said That the Case is not to be compared to the Case in Fitz. Nat. Brevium 57. for there he cannot shew by whose demise the Tenant holdeth if he doth not shew the special Conveyance viz that the Land was given to the Husband and Wife and to the Heirs of the Body of the Wife Nor is it like to the Case of 26 H. 8. for the same cause For always the demise of the Tenant ought to be specially shewed and certainly which it cannot be in these two Cases but by the disclosing of the title also to the reversion Another Exception was taken because that the Writ doth suppose Quod tenuerunt which as they conceived is to be meant that tenuerunt joyntly whereas in truth they were Tenants in Common Walmsley contrary because there is not any other form of Writ for there is not any Writ which doth contain two tenuerunts and the words of the Writ are true quod tenuerunt although tenuerunt in Common but although they were not true yet because there is no other form of Writ it is good enough as Littleton If a Lease be made for half a year and the Lessee doth Waste yet the Writ shall suppose Quod tenuit ad terminum annorum and the Count shall be special 40 E. 3. 41 E. 3. 18. If the Lessee doth commit Waste and granteth over his term the Writ shall be brought against the Grantor and shall suppose Quod tenet and yet in truth he doth not hold the Land and the Writ shall not contain two Tenets and such also was the Opinion of the Court. The third Exception was because that the Writ was brought by the two Coparceners and the Heir of the third Coparcener without naming of Tenant by the Courtesie And thereupon Snag cited the Case of 4 E. 3. That where a Lease is made for life the Remainder for life and the Tenant for life doth waste he in the Reversion cannot have an Action of Waste during the life of him in the Remainder So in the like case the Heir of the third Coparcener cannot have waste because there is a mean Estate for life in the Tenant by the Courtesie And to prove that the Tenant by the Courtesie ought to joyn in the Writ he cited the Case of 3 E. 3. which he had seen in the Book at large where the Reversion of a Tenant in Dower was granted to the Husband and to the Heirs of the Husband and the Tenant in Dower did waste and they did joyn in the Action of Waste and holden good And so is 17 E. 3. 37. F. N. B. 59. 22 H. 6. 25. Walmsley contrary for here in our Case there is nothing to be recovered by the Tenant by the Courtesie for he cannot recover damages because the disinherisin is not to him and the term is expired and therefore no place wasted is to be recovered and therefore it is not like to the Books which have been vouched For in all those the Tenant was in possession and the place wasted was to be recovered which ought to go to both according to their Estates in Reversion but so it is not here for in as much as the term is expired the Land is in the Tenant by Courtesie and so he hath no cause to complain And such also was the Opinion of the whole Court that the Writ was good notwithstanding the said Exception Then concerning the principal matter in Law which was whether the Writ was well brought against the second Lessee or whether it ought to have been brought against the first Lessee It was argued by Shuttleworth That it ought to have been brought against the first Lessee for when he granted over his term excepting the Trees the Exception was good ergo c. For when the Land upon which the Trees are growing is leased out to another the Trees pass with the Lease as well as the Land and the profit of them is in the Lessee during the term and therefore when he grants his term he may well except the Trees as well as the Lessor might have done And that is proved by the Statute of Marlbridge for before that Statute the Lessee was not punishable for cutting down the Trees and that Statute doth not alter the property of the Trees but only that the Lessee should render damages if he cut them down c. Also the words of the Writ of Waste proveth the same which are viz. â—n terris domibus c. sibi dimissis And the Lessee might have cut them down for Reparation and for Firewood if there were not sufficient Vnderwood which he could not have done if the Trees had not been excepted And in 23 H. 8. Br. it is holden that the excepting of the Trees is the excepting of the Soil And so is 46 E. 3. â— where one made a Lease excepting the Woods and afterwards the Lessee did cut them down and the Lessor brought an Action of Trespass Quare vi armis clausum fregâ— c. and it was good notwithstanding Exception was taken to it And it is holden 12 E. 4. 8. by Fairfax Littleton That if the Lessee cut the Trees that the Lessor cannot carry them away but he is put to his Action of Waste Fenner and Walmsley Serjeants contrary And they conceived that the Lessee hath but a special property in the Trees viz. for Fire-boot Plough-boot House-boot c. and if he pass over the Lands unto another that he cannot reserve to himself that special property in the Trees no more than he who hath Common appendant can grant the principal excepting and reserving the Common or grant the Land excepting and reserving the Common or grant the Land excepting the Foldage The grand property of the Trees doth remain in the Lessor and it is proved by 10 H. 7. 30. 27 H. 8. 13. If Tenant for life and he in the Reversion joyn in a Leafe and the Lessee doth Waste they shall joyn in an Action of Waste and the Tenant for life shall recover the Free-hold and the first Lessor the damages which proves that the property of the Trees is in him As to
But all the Court held the contrary and that the Copy should bind the Feoffee and the ceremony of admittance was not necessary For otherwise every Copyholder in England might be defeated by the sole act of the Lord viz. his Feoffment But the Lord by his own act which shall be accounted his folly hath lost his advantages viz. Fines Heriots and such other Casualties Mich. 29 Eliz. In the Common Pleas. CCCLXV Boxe and Mounslowes Case THomas Boxe brought an Action upon the Case against John Mounslowe That the Defendant slandred him in saying That the said Thomas Boxe is a perjured Knave and that he would prove the said Thomas Boxe had forsworn himself in the Exchequer c. and supposed the said words to be spoken in London 4 Feb. 28 Eliz. Et praedict ' Johannes Mounslowe per Johannem Lutrich Attornatum suum venit defendit vim injuriam quando c. Et dicit quod praedict ' Tho. Boxe actionem suam versus eum habere non debet quia dicit quod praedict ' Thomas Boxe being one of the Collectors of the Subsidies before the speaking of the said words viz. 27 28 Eliz. in Curia Scaccarij apud Westm ' did Exhibt a Bill against the said John Mounslowe containing That the said John being assessed in ten pounds in Goods the said Thomas Boxe came to him and demanded of him sixteen shillings eight pence which the said John Mounslowe did refuse to pay and that demand and refusal was supposed to be in London in Breadstreet Et pro verificatione praemisiorum adâ—unc ibid ' Sacramentum Corporale per Barones praefat ' Thomae Boxe praestitit The said Thomax Boxe swore the said Bill in substance was true ubi revera the said John Mounflowe did not refuse per quod the said John Mounslowe postea viz. praedict tempore quo c. dixit de praefat ' Thoma Boxe praedict verba c. pâ—out ei bene Leuit The Plaintiff replyed that the Defendant spake the words de injuria sua propria absque causa per praefat Johannem Mounslowe superius allegata Et hoc petit quod inquiratur per Curiam praedict defendens similiter And a Venâ—re Facias was awarded to the Sheriffs of London and it was found for the Plaintiff and damages 400 l. And now it was moved in Arrest of Iudgment that there was no good Trial nor the Issue well joyned for the Issue doth consist upon 2 points triable in several Counties viz the Oath which was in the Exchequer and that ough to have been tryed in Middlesex and the matter which he affirmed by the Oath viz the demand and the refusal to pay the subsidy and that was alledged to be in London and is there to be tryed and the Issue viz. de 〈…〉 propria goeth to both for the ubi revera will not amend the Case as Penam Iustice said and both are material For the Defendant ought to prove that the Plaintiff made such Oath and also that the substance and matter of the Oath was not true for otherwise the Plaintiff cannot be proved perjured And therefore the Counties here if they might should have joyned in the Tryal And the Opinion of the Court was against the Plaintiff For Anderson and Wincham said That if this Issue could have been tryed by any one of the Counties without the other it should most properly and naturally have been tried in Middlesex where the Oath was made for the Perjury if any were was in the Exchequer But they said The Issue here was ill joyned because it did arise upon two points triable in several Counties which could not joyn whereas the Plaintiff might have taken Issue upon one of them well enough for each of them did go to the whole and if any of them were found for the Plaintiff that he had sufficient cause to recover Gawdy moved that it should be helped by the Statute of Ieofails which speaks of mis-joyning of Issues Anderson The Issue here is not mis-joyned For if the Counties could joyn the Issue were good but because that the Counties cannot joyn it cannot be well tryed But the Issue it self is well enough Windham and Rhodes were of the same Opinion but Periam doubted it Anderson said That if an Issue tryable in one Court be tryed in another and Iudgment given upon it it is Error And afterwards Lutrich the Attorney said That it was awarded that they should re-plead Nota quod mirum For first the Statute of 32 H. 8. cap. 30. speaks of mis-joyning of Process and not mis-joyning of Issues and admit that this Case is not within any of those Clauses each of them being considered by it self yet I conceive it is contained within the substance and effect of them being considered together Also I conceive it is within the meaning of both Statutes viz. 32 H. 8. cap. 30. 18 Eliz. cap. 14. for I conceive the meaning of both Statutes was to waste delays circuits of Actions and Molestations and that the party might have his Iudgment notwithstanding any defect if it were so that notwithstanding that defect sufficient title and cause did appear to the Court. And here the Plaintiff hath sufficient cause to recover if any of the points of the Issue be found for him For if it be found that the matter and substance of the Oath be found true which might be tryed well enough by those in London the Plaintiff had cause to recover Wherefore I conceive that the Verdict in London is good enough and effectual And note that Rhodes said that he was of Counsel in such a case in the Kings Bench betwixt Nevil and Dent. CCCLXVI Mich. 19 Eliz. In the Common Pleas. 3 Leon. 103. THe Case was A. granted B. a Rent-charge out of his Lands to commence when J. S. dyes without Issue of his Body J. S. dyes having Issue and the Issue dyeth without Issue Dyer said That the Grant shall not take effect for J. S. at the time of his death had Issue and therefore the Grant shall not then commence and if he dyeth then not at all by Manwood And Dyer and Manwood said If the words had been to begin when J. S. is dead without Issue of his Body then such a Grant should take effect when the Issue of J.S. dyes without Issue c. And they said That if the Donee in tail hath Issue which dyeth without Issue the Formedon in Reverter shall suppose that the Donee himself dyed with Issue for there is an Interest And there is a difference betwixt an Interest and a Limitation For if I give Lands to A and B. for the term of their lives if either of them dyeth the Survivor shall hold the whole But if I give Lands to A. for the lives of B. and C. now if B. or C. dyeth the whole Estate is determined because it is but a Limitation and B. and C. have not any Interest CCCLXVII Temps Roign
in a way to the Church and that by reason of the custom of the Land and not in their Person Vide 7 E. 4. 26. Where it is pleaded That all the Inhabitants within such a Town have used to have Common there and for a Township to have a way to the Church and by Danby it is good and Littleton said it ought to be pleaded by way of Vsage and 18 E. 4. 3. All the Inhabitants of such a Town time out of mind have used to have Common c. Where a difference was taken where the Prescription is in the Person and where in the Land. 15 E. 4. 29. Cooper Inhabitants of a Town may well prescribe and he vouched Bracton 222 223. Quando acquiritur ex longo usu sive constitutione cum pacifica possessione continua non interrupta ex scientia negligentia patientia Dominorum Et etiam omitti potest per negligentiam and he vouched Britton 144. Common is obtained by long sufferance and also may be lost by long negligence c. The Case was adjourned CCCLXX Mich. 5 Jac. In the Common Pleas. TEnant for life of a Rent acknowledgeth a Statute and releaseth to the Terr-tenant the Statute is forfeited It was holden by Cook and two other of the Iustices in Communi Banco That the Rent as to the Conusee was in esse CCCLXXI IT was holden by Yelverton in his Reading That if a man makes a Lease for two years and confirms the Estate of the Lessee for 20 years it is a good confirmation for 20 years because that all is but a Chattel CCCLXXII IF 2 Ioyntenants are for life and the one grants his Estate for the life of his Companion it was holden to be a Forfeiture for first it is a Severance of the Ioynture and then a Lease for the life of another CCCLXXIII Mich. 5 Jac. In the Common Pleas. TWo men were joyntly bound in an Obligation the one is Principal the other is Suerty the Principal dyed the Suerty took Administration and the Principal having forfeited his Obligation the Suerty made an Agreement with the Creditor and took upon him by Bond to discharge the Debt In Debt brought by another Creditor of the Intestate upon fully Administred pleaded by the Administrator it was a Question if upon shewing of the Obligation and that he had satisfied it and contented it in his proper Debt he should be relieved upon that Plea. It was adjudged he should not because by the joyning with the Principal the Debt became his own Debt CCCLXXIV IF Land be given to A. and B. for the life of C. the remainder to the right Heirs of A. or B. who shall survive It was holden That if A do release to B that the remainder was destroyed And if Land be given to one in Tail and if J. S. comes to Westminster such a day the remainder to J. S. in Fee if the Estate-tail descends to two Coparceners who make Partition now if J. S. come to Westminster the Fee shall not accrue because the particular Estate is not in the same plight as it was before CCCLXXV Mich. 5 Jac. In the Common Pleas. IT was resolved That a Copyholder was not within the Statute of Wâ—â—ls CCCLXXVI Mich. 5 Jac. In the Common Pleas. A Man makes a Feoffment with warranty If the Feoffee brings a Warrantia Chartae against the Heir who pleads riens per discent at the time of the Voucher and it is found for the Tenant It was holden That the Plaintiff should never after have Execution of Lands which after descend for that it is peremptory for the Demandant CCCXXLVII Mich. 5 Jac. adjudge acc ' THe Queen hath the Isle of Garnsey and cognisance of Pleas within it for her Ioynture A man within Garnsey being disturbed to present to a Church which is void brings a Quare Impedit in Communi Banco It was holden in this Case That Garnsey is an Island where our Law runneth not but it is otherwise of the Isle 〈◊〉 Man c. And it was said That if the King grants cognisance of Pleas a man shall not have cognisance of Quare Impedit Assise Redisseisin c. CCCLXXVIII Mich. 5 Jac. In the Common Pleas. NOte It was resolved by the Iustices That if a Parson takes a Benefice above the value of 8 l. with a Dispensation and afterwards takes a 3 l. Benefice that the first Benefice is void by the Statute of 21 H. 8. cap. 13. CCCLXXIX 44 Eliz. In the Kings Bench. NOte It was said that it was adjudged 44 Eliz. in Banco Regis That if Lessee for life granteth his interest to his Lessor that the same shall not enure as a Surrender because there wants words of Surrender but shall enure by way of Grant only CCCLXXX Hil. 5 Jac. In the Kings Bench by Cook. IT was holden by Cook Chief Iustice 1 Roll. 844. Syderf 445. If a man seized in Fee deviseth that after the death of his Son without issue that J. S. shall have his Lands that in that case the Son hath an Estate in Fee determinable and that the Remainder is good Mich. 5 Jac. In the Kings Bench. CCCLXXXI Balls Case A Copyholder pleaded That the Custom of the Manor was that every Copyholder for life might appoint in the presence of two others that such a man should have his Copy-hold after his death without any Surrender to his use and that the two Tenants should assess for his Fine what Sum they pleased so as it was not lesser than had used to be paid where the Lord would assess a reasonable Fine and it was adjudged that it was a good Custom Pasc 6 Jac. In the Common Pleas. CCCLXXXII Glascocks Case A Copyholder alledges the custom to be That all the Tenants within such a Manor in Essex had used to cut down Trees to repair their Copyhold and Freehold Tenements within the Manor and also to sell their Trees at their pleasure And adjudged a good custom Mich. 1 Jac. In the Common Pleas Rot. 854. CCCLXXXIII Sapland and Ridlers Case IT was adjudged after long Argument That where the custom of a Copyhold Manor was to admit for life and in remainder for life at any time when there is but one Copyholder for life in possession And during the minority of the Heir within the age of 14 years his Guardian in Soccage in his own name admits a Copyholder in remainder for life that it was a good Admittance according to the custom and he was Dominus pro tempore well enough as to that purpose although it was objected by Walmsley That the Guardian is but a Servant and not Dominus but because it was agreed that he had a lawful interest the admittance was good And so it was adjudged Pasc 3 Jac. In the Common Pleas. CCCLXXXIV Duke and Smiths Case IT was agreed That if he in the Reversion suffereth a Common Recovery to Vses his Heir cannot plead that his Father had not any thing at the