Grantor at his Election provided then afterwards that he shall charge his person is not good Causa patet And all agreed that upon a Rent granted upon equality of partition or for allowance of Dower or for recompence of a Title an Annuity doth not lye because it is in satisfaction of a thing reall and therfore shall not fall to a matter personall but alwaies remains of the same nature as the thing for which it is given And afterwards the same Term Iudgment was given in the Common Bench that the Plaintiff shall recover which is entred c. And in the same case Clark vouched that it was reported by Benloes in his Book of Reports where a Rent was granted out of a Rectory by the Parson who after wards resigned the Parsonage that it was agreed in the Common Pleas in his time that yet a Writ of Annuity lies against the Grantor upon the same Grant to which all who agreed on this part agreed that it was Law Butler versus Baker and Delves 3. IN Trespasse brought by John Butler against Thomas Baker and Thomas See this case in Cookes 3. Report foâ— 25 Delves for breaking his Close parcell of the Mannor of Thoby in the County of Essex upon a speciall Verdict the Case was thus William Barners the Father was seised in his Demesne as of fee of the Mannor of Hinton in the County of Glocester holden of the King by Knights-service in Capite and being so seised after the Marriage had between William his Son and heir apparant and Elizabeth the Daughter of Thomas Eden Esquire in consideration of the same Marriage and for the Joynture of the said Elizabeth assured the said Mannor of Hinton to the use of the said William the Son and Elizabeth his Wife and the Heirs of their two bodies lawfully begotten and died by whose death the Reversion also of the said Mannors descended to the said William the Son whâ—rby he was seised therof accordingly and being so seised and also seised of the Mannor of Thoby in his Demesne as of Fee holden also of the Queen by Knights-servivice in chief and of certain Lands in Fobbing in the said County of Essex which Land in Fobbing with the Mannor of Hinton were the full third part of the value of all the Land of the said William the Son and he made his Will in writing wherby he devised to his said Wife Elizabeth his said Mannor of Thoby for her life in satisfaction of all her Joynture and Dower upon condition that if she take to any other Joynture that then the Devise to her shall be void and after her decease he devised that the said Mannor shall remain to Thomas his Son and the Heirs Males of his body and for default of such Issue the remainder to Thomas brother of the said William for his life the remainder to hir first second and third Son and to the Heirs Males of their bodies and so to every other Issue Male of his body and for default of such Issue the remainder to Leonard Barners his brother and to the Heirs Males of his body the remainder to Richard Barners and the Heirs Males of his body the remainder to the right Heirs of the Devisor William the Son dies having Issue Thomas his Son and Grisell his Daughter Wife to the said Thomas Baker the said Elizabeth by Paroll in pais moved her Estate in the said Mannor of Hinton and after this entred into the said Mannor of Thoby after which the said Elizabeth died and Thomas the Son and Thomas the Uncle died also without Issue Male after which the said Leonard took one Mary to Wife and died having Issue Anthony Barners after which the said Mary took the said John Butler to Husband and after this the said Anthony assigned to the said Mary the said Mannors of Thoby in allowance for all her Dower wherby the said John Butler as in the right of his Wife entred into the said Mannor of Thoby wherby the said Thomas Delves by the commandment of the said Baker entred into the said Close of which the Action is brought as in right oâ— the said Grisell And whether this entry were lawful or not was the question which was argued in the Court in the time of the late Lord Wray and he and Gawdy held strongly that the entry of the said Delves was lawfull but Clench and Fennor held alwaies the contrary wherupon it was adjourned into the Exchequer Chamber But they all agreed that the Waiver made by the said Elizabeth by parole in pais was a sufficient Waiver of her Estate in Hinton and the rather because of the Statute of 27 H 8. cap. 10. the words of which are That if the Joynture be made after the Marriage that then the Wife surviving her Husband may after his death refuse to take such Joynture And now it was moved by Tanfield that Iudgment ought to be given for the Plaintiff for by the Waiver of the Wife the Inheritance of Hinton is now to be said wholly in the Husband ab initio and therfore that with Fobbing being a whole third part of the whole Land which now is to be said to be left to discend to the Heir of the Devisor as to Thoby is good for the whole and if so then no part therof descends to Grisell and therfore the entry of the said Delves in her right is wrongfull Coke Attorney-general to the contrary for he said That it is to no purpose to consider what Estate the Devisor had in the Mannor of Hinton by reason of this Waiver made by his Wife Ex post facto after his death But we are to see what Estate the Devisor had in it in the view of the Law at the time of his death before the Waiver and according to it the Law shall adjudge that he had power to make his Devise by means of the Statute and at this time none can adjudge another Estate in him but joyntly with his wife of which Estate he had no power to make any disposition or to devise it or to leave it for the third part to his Heir for the Statute which is an explanatory Law in this point saies that he ought to be sole seised in such a case And further the Statute of 34 H. 8. at the end is that the Land which descends immediatly from the Devisor shall be taken for the third part and this Land did not descend immediatly for it survived to the Wife untill she waived it and therfore this Land is not to be taken for any third part which the Statute purposed to have been left to the Heir and therfore so much shall be taken from Thoby as with Fobbin shall be a third part to descend wherbâ— Grisell the Heir hath good right yet to part of Thoby and therfore the entry of the said Delves in her right by commandment of her husband not wronfull Periam chief Baron Clench Clark Walmsley and Fennor That now
by reason of the Waiver in the Devisor shall be sole seised ab initio for the said Elizabeth might have had Dower therof if she would as in the like case it is adjudged in 17 E. 3. 6. and therfore a sole Seisin in the Husband and the descent to the Heir in such a case upon the Waiver shall take away the entry of him who hath right to it And therfore the case now for the Mannor of Hinton is within the very letter of the Statute as well for the sole Seisin which was in the Devisor as for the immediate descent which was from the Devisor to his Heir and therfore remains to the Heir for a good third part of the Inheritance of the Devisor by the very letter of the Statute and if the Letter had not helped it yet it shall be helped by the purport and intent of the Statute which ought to be liberally and favourably construed for the benefit of the Subject who before the Statute of Vses might have disposed of his whole Land by reason of Vses by his Will and the Statute of 27 H. 8. excludes him therof and therfore the Statute of 32. 34 H. 8. are to be liberally expounded as to the Subject for the two parts and the rather because it appeareth by the preamble of the Statute of 32 H. 8. that it was made of the liberality of the King and because that by 34 H. 8. it appeareth that it was made to the intent that the Subject shall take the advantage and benefit purposed by the King in the former Statute by all which it appeareth as they said that the said Statutes shall be liberally expounded for the advantage of the Subject and for his benefit and not so strictly upon the letter of the Law as hath been moved and so they concluded that Iudgment ought to be given for the Plaintiff Popham and Anderson the two chief Iustices and all the other Iustices and Barons held the centrary and that Iudgment ought to be given against the Plaintiff and that by the very letter and purport of the Statutes of 32 34 H. 8. for they said they are to consider what Estate the Devisor hâ—d â—â— the Land at the time of his Devise made without regard to that which might happen by matter Ex post facto upon the Deed of another and if it had beâ—n demanded of any apprised in the Law at the time when the Will wâ—s made what Estate the Devisor then had in the Mannor of Hinton 〈◊〉 is so unlearned to say that he had other Estate in it then joyntly with his Wife And if so it follows that this Mannor was then out of the letter and intent of the Law for he was not then sole seised therof nor seised in coparcenary nor in common and by the words he should be sole seised in Fee-simple or seised in Fee-simple in coparcenary or in common It appeareth that the intent of the Statute was that he shall have full power of himself without the means or aid of another to dispose of the Land of which he is by the Statute to make disposition or to leave it to his Heir and this he hath not for the Mannor of Hinton here And further the words of 32 H. 8. are That the Devisor hath full power at his Will and pleasure to devise two parts of his Land so holden as here and this is to be intended of such Land of which he then had full power to make disposition â—nd this he could not then do for the Mannor of Hinton And further the words of 34 H. 8. are that the devision for the parts shall be made by the Devisor or Owner of the Land by his last Will in writing or otherwise in writing and in default therof by commission c. And can any say with reason that it was the intent of the Statute that he shall make the Devision of other Lands then of those of which he then had full power to devise or to leave to his heir without any future accident to help him or the mean of Anthony by matter Ex post facto It is cleer that reason cannot maintain it And the words following in the Act which are That the King shall take for his third part the Land which descended to the Heir of the â—state tail or of Fee-simple immediatly after the death of the Devisor much enforce the opinion on this side for it cannot be said upon the death before the Waiver that this Mannor of Hinton was immediatly descended ergo it ought not to be taken for the third part And further the words are If the Lands immediatly descended upon the death of the Devisor c. do not amount to a full third part that then the King make take into his hands so much of the other Lands of the Devisor as may make a full third part c. wherby it is cleer that in this case if the wife had not waived her Estate for ten years after the death of the Devisor that for all this time the Queen could not meddle with the Mannor of Hinton and therfore in the mean while she might well have so much of the Mannor of Thoby which might well have made a full third part to her and for so much which she took the Will was alwaies void which shall never be altered nor made good by any Waiver Ex post facto And although the Waiver of the Fame put the Inheritance entirely in the Devisor and in his Heir in relation to divers respects yet as to other respects he shâ—ll not be said in them with such relation and especially upon the Statute in which we now are to respect the power as it was in him at the time of his death before this future Contingent And by Popham If the exposition on the other side shall hold place upon the Statute perhaps a man shall not see by the space of six years or more after the death of a Devisor how his Devise shall work As a Feoffment in Fee is made to I. S. and a Feme Covert and their Heirs of 10 l. Land holden by Knights-service in Capite which I. S. hath 20 l. Land in fee so holden also I. S. makes a Devise of his 20 l. Land the Husband lives 60. years after none will or can deny but that for this time the Devise is not good for two parts now the Husband dies and the Wife waives the Estate made to her this puts the Inheritance therof in the Heir of I. S. with relation to divers respects but not to this respect to make the Will now good for the whole 20 l. Land which therfore was void for the third part therof for the Will which once was void by matter Ex post facto after the death of the Devisor cannot be made good And by him the descent in such a case is not such that it shall take away the entry of him who hath right because
voluntary killing of Bucks cutting of Trees Wood or the like but otherwise it is of things done or suffered by his negligence if it be not common or often And albeit the Trees here were not many or that it was not averred that the Game was to be hurt therby yet it cannot be intended but that it is so much impaired by it as it should be by the killing of a Buck in the Forest by which the Office shall be forfeited because the Game is therby the worse and yet there may be Game sufficient without this Buck but he hath voluntarily done a thing contrary to his Office and therfore it is a Forfeiture of his Office and so it shall be in this case And for the other point they said it was a Condition and also a Covenant and it was for good purpose to have it to be so For suppose that the Game had been destroyed by the said Sir Henry shall this he a sufficient recompence or satisfaction to enter for the Condition broken No and therfore the Covenant was made to recompence him for Damages And when uâ—on the Habendum a Proviso is added for a thing to be done by When a Proviso makes a Condition him to whom the Deed is made or to restrain him to do any thing this is a Condition as well as if it had been a Condition which shall make or shall restrain to do such a thing for they are in this case the words of the Grantor to restrain the Grant in some manner and to shew in what manner he shall have it and it is alwais to him who passeth the Estate and to no other Then suppose here that the Proviso had been Provided alwaies that the Grantee shall not cut any Tree And the Grantee covenant also that he will not cut any Tree this is plainly a Condition and also a Covenant then it is as plain in the case in question which is Provided also and the Grantee covenant c. that he will not cut any manner of Wood distinguish the sentence by his proper distinction and it is cleer that it is a Condition as well as a Covenant And to say that there is a diversity between this case and the case upon Serjeant Bendloes Lease because there it is Provided alwaies and it is covenanted and agreed between the parties In which case it is alledged that the agreement which is the Plaintiffs goes to the Proviso to make it a Condition for him as well as it shall go to the Grantee to make it to be a Covenant from him they understand no difference because the Proviso as it is placed is of it self as spoken by the Plaintiff and the agreement between the parties that such a thing shall be done by the Lessee makes it a Covenant on his part only all being to be performed by him as plainly as in the case in question And to say that the last Proviso shall not be a Condition because the first cannot enure as a Condition because that which is to be done may lawfully be done with it or without it or because that the matter to which the Proviso is annexed is repugnant to the nature of the thing granted yet this is not because of the nature of the word it self but by reason of that to which the Proviso is annexed and therfore the Proviso following hindred in its operation by meanes of the word also And therefore if a man makes a Lease for yeers provided alwayes that the lessor may enjoy and hold the Mannors of D. which is other Land or that the Lessee shall kill I. S. these are void of Conditions But grant then that it is further provided also that he shall not alien his Terme is not this a good Condition although that which was Precedent was no Condition It is cleer that is not And they said for Hamingtons Case that it was but of the nature of a declaration with what wood the Lessee shall meddle because it depends upon the Covenant of the Lessor and it is generall to wit that he may cut any manner of underwood provided that he do not cut any manner of Timber and Popham was of councell with Hamington in this case and the Court at the beginning insisted much that it was a Condition and that for the reason then alledged that it depended upon the Covenant of the Lessor which was general for all manner of under-wood because that Standels growing between great Trees might be taken within the generall words of all manner of underwood for to make it plain it was well put in that he shall not cut any manner of Timber Trees and therfore in this point it was but a Declaration with what wood he should meddle although in truth it was of another thing then was comprised in the Covenant before And then the adding of a Covenant to such a Proviso shall not make the Proviso of another nature then it was before the Covenant made or if no Covenant had been added to it and upon this reason the Court then gave Iudgment for Hamington And by him if I am seised of the Mannor of D. in D. and of Black acre in D. and so seised I covenant with I. S. that he shall enjoy the said Mannor for ten years Provided and the said I. C. covenant that he shall not enjoy Black acre this Covenant is not a Condition but a Declaration deduced out of my Covenant to make a plain Declaration that it is not my intent that Black acre shall passe be it parcel or not parcel of the said Mannor Then the Covenant following will not alter the nature of the exposition of the Proviso which the Law shall make of it self if it had stood of it self without a Covenant following And for the Proviso here he put this case suppose it had been Provided and the Grantee covenants that he shall not cut any Trees None will deny but that this had been a Condition and a Covenant also And what diversity is there where the word is at the conclusion and so couple the Condition and Covenant together And we are not to alter the Law for the ignorance of Scriveners who do they know not what by their ignorance shall be corrected by the Law And they agreed that where a principall Officer is by his Office to make inferior Officers under him and the inferior Officer commits a forfeiture the superior Officer shall take advantage therof and shall place a new Officer as was done in 39 H. 6. for the Office of the Marshall of the Kings Bench put in by the great Marshall of Englang Easter Term 39. Eliz. Overton versus Sydall 1. IN Debt between Valentine Overton Clark Prebendary of the Prebend of Tervin in the County of Chester founded in the Cathedrall Church of Litchfeild in the County of Stafford against Thomas Sydall Executor of William Sydall the case appeared to be this Henry Sydall Clark Prebendary of the Prebend 26 Maij 5.
Issue a Son which selleth this Remainder and afterwards I. S. dyed this Son being his Heir notwithstanding his Sale he shall have this Remainder not his Grantee because it was not in him at the time of his Grant but by a matter which cometh Ex post facto to wit the death of his Father and afterwards Iudgment was given in the first case that the Grantee shal have the term granted to him by the Husband and that the Wife shall not have the term during this Leese Hunt Versus Gateler Mich. 34. and 35 Eliz. in Commun Banco IN a Replevin between Hunt Plaintiff and Gateler Avowant in the Common Pleas which was adjorned for difficulty into the Exchequer Chamber the Case was thus Tenant in tail Remainder in Fee he in Remainder in Vide this case Cook lib. 1. 61. by the name of Capeâ—s case Fee grants a Rent-charge in Fee out of the same Land to begin after the Estate tail determined Tenant in Tail suffer a common Recovery with a Voucher over to the use of the sayd Hunt in Fee and dyed without Issue inheritable to the intail and whether Hunt shall now hold the Land charged with the Rent was the question and after that it had long depended and was many times argued in the Common Pleas and Exchequer Chamber at Hertford Term it was at last resolved by all the Iustices and Barons unanimously that the sayd Rent charge wss gone by the Recovery although the Estate tail was expired because that he which is in is in under this Intail And therefore Popham sayd suppose thâ—t the Tenant in tail himself before the Recovery had granted a Rent charge out of the same Land or had made a Lease for yeers or had acknowledged a Statute all those had been good and to be executed against him which cometh in under the Recovery notwithstanding that the Estate tayl had been determined for want of an heir inheritable to the intail for he which recovereth cannot lay that he against whom he recovered had but an Estate in tail and if his Lease remain yet good as all agreed it did how can the Lease a Rent granted by him in the Remainder be good also for the one and the other cannot stand together and therefore all the Leases Charges or Statutes acknowledged or made by him in the Remainder are gon and avoided by the Recovery had against Tenant in tail To which opinion all the other agreed and Popham sayd further That he in the Remainder upon an Estate tail cannot by any means plead to defend his Remainder unless the Tenant will as by vouching of him and therefore shall be bound by the Act of Tenant in Tail where the Estate it self is bound as here it is by the Voucher and then they which come in by him in the Remainder by way of Lease Charge or Statute which are not so much favoured in Law as Tenant in tail himself be in better condition then he in the Remainder himself is for he in the Remainder upon an Estate tail cannot put more into the Mouth of the Lessee or Grantee to defend their Estates then he himself could have to defend his Remainder and this is the reason that such a Termer or Grantee shall never falsifie the Recovery had against Tenant in tail as the Grantee or Termer shall do which cometh in under Tenant in tail against whom the Recovery was had for there as the Tenant in tail may plead to defend his Possession and Estate so may his Termer or Grantee of a Rentcharge do for by the Demise or Grant made the Tenant in tail hath put all the Pleas into their mouthes for their Interests which he himself had to defend his Right and Possession which they may plead for the time to defend their Possessions and Rights as well as the Tenant in tail himself may do and this is the reason that such may falsifie Recoveries against their Lessors or Grantors if they be not had upon the meer right Paramount which he that cometh in by such a Remainder as before cannot do for such a one in Remainder cannot be received to defend his Right but his mouth is meerly foreclosed to do it and by the same reason are all those which come in by such men foreclosed to defend their Interests or Estates and upon this Audgement was given in the same Tearm in the common Pleas. Gibbons versus Maltyard and Martin IN an Ejectione firmae brought in the Kings Bench by John Gibbons Vide this case in Cook lib. 8. 130 Thetford Scholies case Plaintiff upon a Demise made by Edward Peacock the Son of Lands in Croxton in the County of Norfolk against Thomas Maltyard and John Martin upon a speciall verdict the case appeared to be thus to wit that Sir Richard Fulmerston Knight was seised of the sayd Lands amongst others holden in soccage in his Demesne as of Fee and being so seised by his last Will in Writing made 9 Eliz. Ordained that a Devise shall be made by his Executors that a Preacher shall be found for ever to preach the Word of God in the Church of Saint Maries in Thetford four times in the year and to have for his Labour ten shillings for every Sermon And further he devised to his Executors and their heirs certaine Lands and Tenements in Thetford aforesaid to this intent and upon this condition that they or the Survivor of them within seven years after his decease should procure of the Queens Highness to erect a free Grammar School in Thetford for ever to be had and kept in a house by them to be erected upon part of the sayd Land that they shal assure three of the said ienements for the house and Chamber of the Schoolmaster and Vsher and their Successors for ever and for the other tonement that they shall make an assurance of it for the Habitation of font poor people two men and two women for ever And for the better maintenance of the sayd Preacher Schoolmaster Vsher and Poore people he devised amongst others his sayd tenements in Croxton to his Executors for ten years for the performance of his Will and after this he devised them to Sir Edward Cleer and Frances his Wife the Daughter and Heir of the sayd Sir Richard and to the Heirs of the sayd Sir Edward upon Condition that if the sayd Sir Edward his Heires or Assignes before the end of the sayd ten years shall assure Lands or Tenements in possession to the value of five and thirty pounds a year to the sayd Executors or the Survivor of them their Heirs and Assignes or to such persons their heirs or Successors as his sayd Executors or the Survivor of them shall name or assigne for and towards the maintenance of the sayd Preacher Schoolmaster and Vsher in the sayd School house c. and for the releif of the sayd poor people in the one of the sayd houses according to the Ordinance as he
Saint Michael next ensuing rendring the ancient Rent and 25. Octob. 21. Eliz they did let the same Messuage to the same Standish for twenty years from the Feast of Saint Michaeâ— then next ensuing rendring also the ancient Rent and 31 August 30. Eliz. The President and Schollers made a new Lease of the same Messuage to Sir George Carew Knight for twenty years from making of the Lease rendring the ancient Rent which Lease was conveyed by mean Assignments to the Plaintiff upon which the Action was brought against the sayd Trafford which had the Interest of the sayd Standish by mean Assignments Popham said that Ipso facto upon the last Lease made and annexed by Standish the first Leass was determined and gone for this last contract dissolves the first when the one and the other cannot stand together as they cannot here because the one intermix with the other and so was the opinion in the Common Bench about 1 Eliz. in the case of the Abby of Barking of which I have seen a Report And here Standish before Michaelmas next after the second Lease made to him could not grant over his first term to be good to the Grantee for if this should be the second term shall not be good to Standish but for the remnant of the years after the first term finished which cannot be because it standeth in the power of the Grantor with the assent and acceptance of the Grantee to make the second Grant good for the whole term to wit from Michaelmas and this cannot be but by a determination in Law of the first term immediatly which is made by his own acceptance and therefore a prejudice to none but himself and Volenti non fit injuria and the first Term cannot have his continuance untill Mich. but is gone presently by the acceptance of the second Lease in the whole for the first contract which was entyre cannot be so dissolved in part but in the whole as to that which the party hath and therefore the first Term as the case is here is gone in the whole to which Clench and Gaudy agreed And if so then this last Lease to Standish was but as a Lease made to begin at a time to come which is made good by the Stat. of 14 Eliz. if it do not exceed the time of 40 years from the making of the Lease for the purpose of this Act was that Colledges and the like shall not make Grants in Reversion albeit it be for a year and the reason was because that by such Grants in Reversion they shall be excluded to have their Rent of the particular Tenants for the time And therfore in the case of the Countesse of Sussex who had a Ioynture assured to her for her life by Act of Parliament with a Provise that the Earle her Husband might demise it for one and twenty yeares rendring the usuall Rent where the sayd Earle had made a Lease for one and twentie yeares according to the Statute within a yeare before the end of the same Lease the said Earle made a new Lease of the same Land to Wroth his Servant for one and twentie yeares to begin after the end of the former Lease rendring the usuall Rent and died the said Countesse avoided this last Lease by Iudgement given in this Court because it shall be intended to be a Lease in Possession which he ought to make by the Proviso from the time of the making of it otherwise by such perverse construction the true intent of the Statute shall be utterly defrauded But here to make a Lease for twentie yeares to one in Possession and to make another Lease to another for twentie yeares to begin after the end of the former Lease is good because that the one and the other do not exceed the fortie yeares comprised in the Statute And the Iustices of the Common Bench the same day at Sergeants Inn agreed to the opinion of Popham for the determination of the whole first Term by the taking of the second Term by Standish Ward versus Downing 2. IN an Ejectione firmae brought by Miles Word against Robert Downing the case was thus Oâ—e Robert Brown was seised of certain Lands in in the County of Norfolk in his Demesne as of Fee which were of the nature of Gavelkinâ— and had Issue George his eldest Son William his middlemost Son and Thomas his youngest Son and being so seised 6 Decem. 1559. made his Testament in writing by which he devised the sayd Tenements in these words Item I give unto Alice my wife the use and occupation of all my Houses and Lands as well free as copy-hold during her naturall life Item I will that George my Son shall have after the decease of his Mother all those my Houses and Lands wherof the use was given to his sayd Mother for the term of her life To have and to hold to him and his Heirs for ever and if the sayd George dye without Issue of his body lawfully begotten then I will my sayd Lands shall in like manner remain unto William my Son and his Heirs for ever And I will that all such money as shall be payd of any Legacy by the sayd George shall be allowed by the sayd William to whom the sayd George shall appoint Item I will that if the sayd George and William depart the world before they have Issue of their bodies lawfully Then I will that all my sayd Houses and Lands shall remain unto Thomas my Son and to his Heirs for ever Item That if the sayd George shall enjoy my sayd Houses and Lands then I will the sayd George shall pay out of the sayd Lands to William and Thomas his Brother 26 l. 13 s. 4 d. that is to say at his first entry into the sayd Lands to pay unto the sayd William his Brother 40 s. and so to pay yearly untill the summ of 13 l 6 s. 8 d. be fully answered and payd and then immediatly to pay unto Thomas his Brother 13 l 6 s. 8 d. to be payd unto the sayd Thomas when the sayd William shall be fully answered by 40 s. a year in like proportion as is aforesayd And if my sayd Son George shâ—ll refuse to pay unto William and Thomas his Brother the summs of 26 l 13 s. 4 d in manner and form as is before limitted Then I will that all my Houses Lands and Tenements with the Appurtenances remain to Willâ—am my Son and his Heirs for ever paying therfore 26 l. 13 s. 4 d. viz. 13 l. 6 s. 8 d. to George my Son and 13 l. 6 s. 8 d. to Thomas my Son in such manner and sort as the sayd George shall pay if he should enjoy the sayd Lands And if it fortune the sayd William to enjoy the sayd Lands then the sayd William shâ—ll pay unto Thomas his Brother the whole summ of 26 l. 13 s. 4 d. as is â—foresayd After which the sayd Robert dyed seised of the sâ—yd Tenements in
and exhibit or upon his or their Oath affirming that they have not the same nor can come by it or that it was never put in writing then the effect therof to be entred and inrolled of Record or else every such conveyance and assurance should be void and of none effect to all intents and purposes saving to every person and persons other then to parties and privies to such conveyance such as shall not exhibit the said conveyance according to the true meaning of this Act all such Rights c. wherupon the said Francis the Nephew the 20. day of Novem. 30 Eliz. in his own person affirmed upon his Oath that he had not the said conveyance nor knew not how to come by it but delivered the effect of the assurance omitting the time when it was made otherwise then that it was made after the beginning of the Queens Raign and before the Treason committed by the said Sir Francis and before the Statute made 13 Eliz. against Fugatives and omitting also the last clause of the Condition for the tender of the said King and this he offered openly in the Court of Exchequer the same day after which the Queen being moved with the said Condition made a Warrant per Letters Patens under the great Seal dated 17. Martii 31 Eliz. to Richard Broughton and Henry Bourchier Esquires for her and in her place and stead to deliver or tender to the said Francis the Nephew a King of Gold to the intent to make void the Vses and limitations limited by the said Indenture and to return their proceedings upon it into the Court of Exchequer wherupon they made a tender of a King of Gold to the said Francis the Nephew the 18. day of March 31 Eliz. which he refused to receive And the two years after the said Session of Parliament was the 23. day of March 31 Eliz. And the said Broughton and Bourchier returned all this that they had done as before with the Commissions into the Exchequer according to the Commission And upon this at the Parliament holden 35 Eliz. upon an Act which then was to passe touching the Land and Attainder of the said Sir Francis diverse questions were moved amongst all the Iudges and Barons then there wherof 1. The first was whether the effect of the Assurance made by Sir Francis was delivered into the Exchequer according to the intent of the Act because it wanted the time when it was made and also one of the Proviso's And upon good deliberation they all did agree that it was not put in according to the purport of the said Act for the time may be materiall to be known for the fraud which by the same Statute might be averred to be in the making of this Conveyance and for the better tryall of the validity of the assurance and of the cause of it therfore the true effect therof ought to de delivered or shewn in writing to be entred of Record because the Queens Councell may see and understand by it whether the Queen might have Title to it or not and how can this be if it doth not appear when it was done And for the Condition how can the Queen by presumption come to the notice of it if it be not shewn to her And this was one principall matter of the effect of the said assurance which ought to have been shewn for this shewing ought to be for the benefit and advantage of the Queen and not so much for the advantage of the party And here the effect of it which shall shew for the Queen is omitted and therfore not shewn in writing according to the purport and intent of the Statute which was that by it the Queen and her Councell may see what will make for her in the Grant Conveyance or Assurance 2. Whether this Condition were given to the Queen because that the words in this Indenture precedent to the Condition are these viz. Because that the said Francis the Nephew might happen to be of evill behaviour and government the said Sir Francis provided as before which as was alledged was founded upon a particular regard and respect which was proper to himself and therfore cannot be transferred to the Queen and it doth not appear that he yet had been of ill behaviour But this notwithstanding all agreed that this Condition is in the Queen by the attainder of the said Sir Francis as well by the Act of his Attainder as by the Act of 33 H. 8. which give the forfeiture of Conditions also expressy in the case of Treason 3. Whether there ought to be an Office for finding the performance of the Condition according to the Warrant and all agreed that there need not because that when any man is to do a thing by Warrant of Letters Patents for the Queen to be returned in any Court it sufficeth for him to return it which he hash done according to the Letters Patents with the Warrant it self and then that which is so returned is as well of Record as if it were found by Office and returned of Record and so it was agreed in the Exchequer about 16 Eliz. in the case of Edward Dacres who had made an Assignment of his Goods and Chattells to Sir Alexander Culpdpper and others who afterwards was attainted of Treason by Outlawry and the Condition adjudged to be forfeited to the Queen by the Statute of 33 H. 8. and a Warrant was made by Letters Patents to Sir Thomas George to perform the Condition who did it and returned that he had done it accordingly wherby the assurance to the said Sir Alexander and his Companions was avoided and all the Goods and Chattels of the said Edward forfeited to the Queen and all this was in the Queen without Office found for that which the Sheriff or other Minister doth by virtue of any Writ or Warrant which is to be of Record when it is returned of Record it is as well of Record as the Writ or Warrant it self so here c. 4. But the greatest question was which was not any thing in the case here whether the Estate made to Francis the Nephew were void eo instanti upon Hillary Term finished 31 Eliz. although the two year after the Session of Parliament 28 Eliz. did not end untill the 28. day of March 31 Eliz. in as much as no Term was or could be within two years after it in which the assurance or the effect of it might be shewn openly in the Court of Exchequer or that it shall tarry to be void untill the two years are fully expired as if a man make assurance of his Land upon condition that if he do not go to Rome within two years next ensuing that it shall be to the use of I. S. and his Heirs and he stay untill a week within the end of the two years in so much as it is not possible to perform it within the two years yet the use doth not change untill the two
that it shall be then holden as if no Adjournment had been the Essâ—ines had been the first day of Tres Trin. and the full Term had not been untill the fourth day which was the last day of the Term quod nota and so it was of the Adjournment which hapned first at Westminster and afterwards at Hertford from Michaelmas Term now last past Michaelmas Term 35 and 36 Eliz. Gravenor versus Brook and others 1. IN an Ejectione firmae by Edward Gravenor Plaintiff against Richard Brook and others Defendants the case appeared to be this Henry Hall was seised in his Demesne as of Fee according to the custom of the Mannor of A. in the County of D. of certain customary Tenements holden of the said Mannor called Fairchildes and Preachers c. In the third year of Henry the 8th before which time the customary Tenements of the said Mannor had alwaies been used to be granted by Copy of Court Roll of the said Mannor in Fee-simple or for life or years but never in Fee-tail but then the said Henry Hall surrendred his said Copy-hold Land to the use of Joane his eldest Daughter for her life the remainder to John Gravenor the eldest Son of the said Joane and to the Heirs of his body the Remainder to Henry Gravenor her other Son and the Heirs of his body the Remainder to the right Heirs of the said Henry Hall for ever wherupon in 3 H. 8. at the Court then there holden a grant was made by Copy of Court Roll accordingly and Seisin given to the said Joane by the Lord accordingly Henry Hall died having Issue the said Joane and one Elizabeth and at the Court holden within the said Mannor 4 H. 8. the death of the said Henry Hall was presented by the Homage and that the said Daughters were his Heirs and that the Surrender made as before was void because it was not used within the said Mannor to make Surrenders of Estates tails and therupon the said Homage made division of the said Land and limited Fairchilds for the purparty of the said Joane and Preachers for the purparty of the said Elizabeth and Seisin was granted to them accordingly Elizabeth died seised of her said part after which 33 H. 8. Margaret her Daughter was found Heir to her and admitted Tenant to this part after which Joane dyed seised of the said Tenements as the Law will And after the said Margaret takes to Husband one John Adye who with his said wife surrendred his said part to the use of the said John Adye and of his said wife and of their Heirs and afterwards the said Margaret died without Issue and the said John Adye held the part of his said wife and surrendred it to the use of the said Richard Brook and of one John North and their Heirs who were admitted accordingly after which the said John Gravenor died without Issue and now the said Henry Gravenor was sole Heirs to him and also to the said Henry Hall who had Issue Edward Gravenor and dyed the said Edward entred into the said Lands called Preachers and did let it to the Plaintiff upon whom the said Richard Brook and the other Defendants did re-enter and eject him And all this appeareth upon a speciall Verdict And by Clench and Gawdy an Estate tail cannot be of Copyhold Land unlesse it be in case where it hath been used for the Statute of Donis conditionalibus shall not enure to such customary Lands but to Lands which are at common Law and therfore an Estate tail cannot be of these customary Lands but in case where it hath been used time out of mind and they said that so it hath been lately taken in the Common Bench But they said that the first remainder limited to the said John Gravenor here upon the death of the said John was a good Fee-simple conditional which is well warrantes by the custom to demise in Fee for that which by custom may be demised of an Estate in Fee absolute may also be demised of a Fee-simple conditionall or upon any other limitation as if I. S. hath so long Issue of his body and the like but in such a case no Remainder can be limited over for one Fee cannot remain over upon another and therfore the Remainder to the said Henry was void But they said that for all the life of the said John Gravenor nothing was in the said Elizabeth which could descend from her to the said Margaret her Daughter or that might be surrendred by the said Margaret and her Husband and therfore the said Margaret dying without Issue in the life time of the said John Gravenor who had the Fee-simple conditionall nothing was done which might hinder the said Edward Son to the said Henry Gravenor of his Entry and therfore the said Plaintiff ought to have his Iudgment to recover for they took no regard to that which the Homage did 4th year of Hen. 8. But Fennor and Popham held that an Estate tail is wrought out of Copy-hold Land by the equity of the Statute of Donis conditionalibus for otherwise it cannot be that there can be any Estate tail of Copyhold Land for by usage it cannot be maintained because that no Estate tail was known in Law before this Statute but all were Fee-simple and after this Statute it cannot be by usage because this is within the time of limitation after which an usage cannot make a prescription as appeareth 22 23 Eliz. in Dyer And by 8 Eliz. a Custom cannot be made after Westm 2. And what Estates are of Copyhold land appeareth expresly by Littleton in his Chapter of Tenant by Copyhold c. And in Brook Title Tenant by Copyhold c. 15 H. 8. In both which it appeareth that a Plaint lyeth in Copyhold Land in the nature of a Formedon in the Descender at common Law and this could not be before the Statute of Donis conditionalibus for such Land because that before that Statute there was not any Formedon in the Descender at common Law and therfore the Statute helps them for their remedy for intailed Land which is customary by equity Add if the Action shall be given by equity for this Land why shall not the Statute by the same equity work to make an Estate intail also of this nature of the Land We see no reason to the contrary and if a man will well mark the words of the Statute of Westm 2. cap. 1. he shall well perceive that the Formedon in Descender was not before this Statute which wills that in a new case a new remedy may be given and therupon sets the form of a Formedon in Descender But as to the Formedon in the Reverter it is then said that it is used enough in Chancery and by Fitzherbert in his Natura brevium the Formedon in the Descender is founded upon this Statute and was not at Common Law before And the reason is because these Copyholds are now become by usage to be
Defendant had nothing to do there the Defendant shall be excused But here it is expresly alledged that it fell by the weight put upon it which ought to be answered As if a man take an Estate for life or years in a ruinous house if he pull it down he shall be charged in Wast but if it fall of it self he shall be excused in Wast so there is a diversity where default is in the party and where not so here the Defendant ought to have taken good care that he did not put upon such a ruinous floor more then it might well bear if it would not bear any thing he ought not to put any thing into it to the prejudice of a third person and if he does he shall answer to the party his damages Collard versus Collard 5. IN an Ejectione firmae brought by Constantine Collard against Richard Collard the case appeared to be this Thomas Collard was seised in his Demesne as of Fee of Lands in Winkle in the County of Devon called the Barton of Southcote And having two Sons to wit Eustace the eldest and Richard the now Defendant the youngest and the eldest being to be married the said Thomas in consideration of this marriage being upon the said Barton said these words Eustace stand forth I do here reserving an Estate for my own life and my wives life give unto thee and thy Heirs for ever these my Lands and Barton of Southcote after which the said Thomas enfeoffed his youngest Son of Barton with warranty from him and his Heirs the eldest Son enter and let it to the Plaintiff upon whom the Defendant re-enter upon which re-entry the Action was brought and upon a speciall Verdict all this matter appeared But it was not found by the Verdict that the said Thomas Collard the Father was dead and therfore the Warranty was not any thing in the Case And it was moved by Heale that the Plaintiff ought to be barred because it did not passe by way of Estate in as much as a man cannot passe a Freehold of a Land from himself to begin at a time to come and by it to create a particular Estate to himself and in use it cannot passe because that by a bare parole and Vse cannot be raised and by giving my Land to my Son Cosin and the like nothing will passe without Livery for there is not consideration to raise an Vse Fennor The words shall be taken as if he had said here I give you this Barton reserving an Estate for my life although the words of reservation have priority in their time from the speaking of them because a reservation cannot be but out of a thing granted and therfore the reservation shall be utterly void or otherwise ought to be taken according to their proper nature to wit to be in their operation subsequent and so shall not hurt the Grant and therfore are not to be compared to the case where a man grant that after the death of I. S. or after his own death a stranger shall have his Land which Popham granted And Fennor said further that these words being spoken upon the Land as before amount to a Livery Gawdy said That the words as they are spoken amount to a Livery if the words are sufficient to passe the Estate but he conceived that the words are not sufficient to make the Estate to passe to the said Eustace because his intent appeareth that Eustace was not to have the Land untill after the death of him and his wife and therfore of the same effect as if he had granted the Land to the said Eustace after his death and as an Vse it cannot passe because by a bare word an Vse cannot be raised as appeareth in divers Reports Mich. 12 13 Eliz. which is a good case to this purpose But to say generally that an Vse cannot be raised or charged upon a perfect Contract by words upon good consideration cannot be Law and therfore it is to be considered what the Law was before the Statute of 27 H. 8. And I thinke that none will deny but that by grant of Land for money before this Statute an Vse was raised out of the same Land for a bargain and sale of Land for money and a grant of Land for money is all one and no difference between them And is not a grant of Land made in consideration of marriage of my Son and Daughter as valuable as a grant of it for money It is cleer that it is and much more valuable as my blood is more valuable to me then my money and therfore it is absurd to say that the consideration of money raise or change an Vse at Common Law and not such a consideration of marriage And in such a case at Common Law there was not any diversity that the party who so grant or hargain for the one or the other considerations was fâ—ised of the Land granted or bargained in use or possession but that the Vse by the Contract was transferred according to the bargain in both cases where there is a consideration And where through all the Law shall it be seen that of any thing which might passe by contract there need any other thing then the words which make the contract as writing or the like testifying it And that the Law was so it appeareth by the Statute of Inrolements of bargains and sales of Land made 27 H. 8. which enacts that no Freehold nor Vse therof shall passe by bargain and sale only unlesse it be by deed indented and enrolled according to the Statute Ergo if this Statute had not been it had passed by the bargain and sale by bare words and in as much as the Statute enacts this in case of bargain and sale only the other cases as this case here are as it was before at Common Law And by an exception at the end of the same Statute London is as it was at Common Law and therfore now Lands may passe there at this day by bargain and sale by word without deed for it is out of the Statute And how can we say that the Statute of Vses does any thing to alter the Common Law in this point by any intent of the makers therof wheras at the same Parliament they made an especiall Law in the case of bargain and sale of Lands And at this day for the Lands in London notwithstanding the Statute of Vses the Law hath been put in practice and alwaies holden as to the Lands there to be good if sold by bare Parole as it were at Common Law And I have heard it reported by Manwood late chief Baron of the Exchequer that it was in question in the time of King Edw. the 6th whether the use of a Freehold of Land will passe upon a Contract by Parole without Deed in consideration of marriage upon which all the then Iustices were assembled upon a doubt rising in a case hapning in the Star-chamber and then
to the use of Dennis May his Son and Heir apparant and his Heirs upon condition that the said Dennis and his Heirs should pay to one Petronell Martin for his life an annuall Rent of 10 l. which the said Thomas had before granted to the said Petronell to begin upon the death of the said Thomas And upon condition also that the said Thomas upon the payment of 10 s. by him to the said Feoffees or any of them c. might re-enter After which the said Thomas May and Dennis by their Deed dated 30. May 19 Eliz. granted a Rent-charge out of the said Mannor of 20 l. a year to one Anne May for her life after which the said Thomas May paid the said 10 s. to the said Feoffees in performance of the Condition aforesaid and therupon re-entred into the Land and enfeoffed a stranger And whether by this the Rent were defeated was the question And it was mooved by Coke Attorney-generall that it was not but that in respect that he joyned in the part it shall enure against the said Thomas by way of confirmation which shall bind him as well against this matter of Condition as it shall do against any Right which the said Thomas otherwise had And therfoâ—e by Littleton If a Disseisor make a Lease for years or grant a Rent-charge and the Disseisor confirm them and afterwards re-enters albeit Lit. there makes a Quaere of it yet Cook said That the Disseisor should not avoid the Charge or Lease which was granted by the whole Court And by him the opinion is in P. 11. H. 7. 21. If Tenant in Tail makes a Feoffment to his own use upon Condition and afterwards is bound in a Statute upon which Execution is sued and afterwards he re-enter for the Condition broken he shall not avoid the Execution no more the Rent here Fennor agreed with Cook and said further That in as much as every one who hath Title and Interest have joyned in the Grant it remains perpetually good And therfore if a Parson at Common Law had granted a Rent-charge out of his Rectory being confirmed by the Patron and Ordinary it shall be good in perpetuity and yet the Parson alone could not have charged it and the Patron and Ordinary have no Interest to charge it but in as much as all who have to intermeddle therin are parties to it or have given their assent to it it sufficeth Gawdy was of the same opinion and said That there is no Land but by some means or other it might be charged and therfore if Tenant for life grant a Rent-charge in Fee and he in the Reversion confirm the Grant per Littleton the Grant is good in property so here To which Clench also assented but Popham said That by the entry for the Condition the Charge is defeated And therfore we are to consider upon the ground of Littleton in his Chapter of Confirmation to what effect a Confirmation shall enure and this is to bind the right of him who makes the Confirmation but not to alter the nature of the Estate of him to whom the Confirmation is made And therfore in the case of a grant of a Rent-charge by the Disseisor which is confirmed by the Demisee the reason why the Confirmation shall make this good is because that as the Disseisee hath right to defeat the right and the Estate of the Disseisor by his Regresse in the same manner hath he right therby to avoid a Charge or a Lease granted by the Disseisor which Right for the time may be bound by his confirmation But when a man hath an Estate upon condition although the Feoffor or his Heirs confirm this Estate yet by this the Estate is not altered as to the Condition but it alwaies remaineth and therfore Nihil operatur by such a confirmation to prejudice the Condition And so there is a great diversity when hewho confirmeth hath right to the Land and where but a Condition in the Land And by him if a Feoffee upon condition make a Feoffment over or a Lease for life or years every one of these have their Estates subject to the Condition and therfore by a Confirmation made to them none can be excluded from the Condition And the same reason is in case of a Rent granted by a Feoffor upon Condition it is also subject to the Condition and therfore not excluded from it by the Confirmation as it shall be in case of a Right And to prove this diversity suppose there be Grand-father Father and Son the Father disseise the Grand-father and makes a Feoffment upon Condition and dies after which the Grand-father dies now the Son confirms the Estate of the Feoffee by this he hath excluded himself from the Right which descended to him by his Grand-father but not to the Condition which descended to him from his Father And of this opinion were Anderson and other Iustices at Serjeants-Inn in Fleetstreet for the principall Case upon the Case moved there by Popham this Term And as the case is it would have made a good question upon the Statute of Fraudulent Conveyances if the Avowry had been made as by the grant of Thomas May in as much as the Estate made to the use of Dennis was defeasable at the pleasure of the said Thomas in as much as it was made by the Tenant of the Land as well as by him who made the Conveyance which is to be judged fraudulent upon the Statute But this as the pleading was cannot come in question in this case And afterwards by the opinion of other three Iudges Iudgment was given that the Grant should bind the said Thomas May and his Feoffees after him notwithstanding his regresse made by the Condition in as much as the Grant of the said Thomas shall enure to the Grantee by way of confirmation And by Gawdy If a Feoffee upon Condition make a Feoffment over and the first Feoffor confirm the Estate of the last Feoffee he shall hold the Land discharged of the Condition because his Feoffment was made absolutely without any Condition expressed in his Feoffment But Popham denied this as it appeareth by Littleton Tit. Descents because he hath his Estate subject to the same Condition and in the same manner as his Feoffor hath it into whomsoever hands it hapneth to come and therfore the Confirmation shall not discharge the Condition but is only to bind the right of him who made it in the possession of him to whom it is made but not upon Condition Morgans Case 7. RObert Morgan Esquire being seised in his Demesne as of Fee of certain Lands called Wanster Tenements in Socage having Issue John his eldest Son Christopher his second Son and William his youngest Son by his last Will in writing demised to the said Christopher and William thus viz. Ioyntly and severally for their lives so that neither of them stall alienate the Lands and if they do that they shall remain to his Heirs Robert the Father
Richard he made assurance by Fine of his Lands being 174 l. a year viz. Of part therof of the value of 123 l. a year of which part was holden of the Queen by Knights Service in Capite to the use of himself for his life and after his decease to the use of the said William and Margaret and the Heirs of the body of the said William begotten on the body of the said Margaret and for default of such Issue to the use of the right Heirs of the said William And of the residue therof being also holden in Capite of the Queen to the use of himself for his life and after his decease to the use of the first Issue Male of the said Richard and to the Heirs Males of his body and then to other Issues of his body and for default of such Issue to the said William and Margaret and the Heirs of the body of the said William on the body of the said Margaret lawfully begotten and for default of such Issue to the right Heirs of the said William with this Prouiso That it shall be lawfull for the said Richard to make a Joynture to his wife of the Lands limited to his Issue Males and for making of Leases for 21. years or three lives for any part of the said Land rendring the ancient Rent except of certain parcels and that William died without Issue and that Gilbert Littleton was his Brother and Heir and that the said Margaret married the said George Littleton youngest brother to the said William which are yet living And that the said Richard married Dorothy and made her a Joynture according to the Proviso And that the said Richard had Issue Iohn Smith and died the said Iohn being his Son and Heir and within age After which a Melius inquirendum issued by which it was found that the said Margaret was the Daughter of the said Richard and that the said Land was of the value of 12000 l. at the time of the assurance And how much of the Land shall be in ward and what Land and what the Melius inquirendum makes in the case was the question put to the two chief Iustices Popham and Anderson who agreed that the Queen now shall have the third part as well of that which was assured to William and Margaret immediatly after the death of the said Richard as of that which was limited to Dorothy for the life of the said Margaret for although money were paid yet this was not the only consideration why the Lands were assured but the advancement of the Daughter and now by the surviving of the said Margaret shee shall be said to be in the whole which was assured to her by her Father and for her advancement and the Land as it appears was of greater value then the money given and may as well be thought to be given for the Remainder of the Fee And agreeable to this was the case of Coffin of Devonshire about the beginning of the Raign of the now Queen which was that the said Coffin for moneys paid by one Coffin his Cosin having but Dâ—ughters himself conveyed his Land to the use of himself and his wife and to the Heirs Males of his body and for default of such Issue to the use of his said Cosin and his Heirs for which his said Cosin was to give a certain sum of money to the Daughters for their marriage Coffin dies his said Daughters being his Heirs and within age and were in ward to the Queen the Lands being holden by Knights Service in Capite And the third part of the Land was taken from the wife of Coffin for the life of the said wife if the Heirs continue so long in Ward And it was also agreed by them and the Councell of the Court that the Melius inquirendum was well awarded to certifie that the said Margaret was the Daughter of the said Richard of which the Court could not otherwise well take Conusance for they thought that it was not matter to come in by the averment of the Attorney-generall as Dyer hath reported it But now by the Statute it ought to be found by Inquisition and being a thing which stands with the former Inquisition it ought to be supplied by the Melius inquirendum for the same Statute which gives the Wardship in case where Land is conveyed for the advancement of the Wife or Infants or for the satisfaction of Debts and Legacies of the party by the implication of the same Statute this may be found by Inquisitton and if it be omitted in the Inquisition it ought to be found by a Melius inquirendum but not to come in by a bare surmise And therfore if in the Inquisition it be found that the Ancestor had conveyed his Land by the Melius inquirendum it may be found that it was for the payment of his Debts or Legacies or that the party to whom or to whose use it was made was the Son or Wife of the party that made it and that by the very purport of the Statutes 32. 34 H. 8. as by Fitzherbert if it be surmised that the Land is of greater value then it is found a Melius inquirendum shall issue and so shall it be if it be found that one is Heir of the part of the Mother but they know not who is Heir of the part of the Father so if it be not found what Estate the Tenant had or of whom the Land was holden so upon surmise made that he is seised of some other Estate or that he held it by other Services by Fitzherbert a Melius inquirendum shall Issue and upon this order given it was decreed accordingly this Term. Morgan versus Tedcastle 4. IN the same Term upon matter of Arbitrement between Morgan and Tedcastle touching certain Lands at Welburn in the County of Lâ—ncoln put to Popham Walmesley and Ewens Baron of the Exchequer Wheras Morgan had granted to Tedcastle a 100. acres of Land in such a field and 60 in such a field and 20. acres of Meadow in such a Meadow in Welburn and Hanstead in which the acres are known by estimations or limits there be shall take the acres as they are known in the same places be they more or lesse then the Statute for they passe as they are there known and not according to the measure by the Statute But if I have a great Close containing 20. acres of Land by estimation which is not 18. And I grant 10. acres of the same Close to another there he shall have them according to the measure by the Statute because the acres of such a Close are not known by parcels or by meets and bounds and so it differeth from the first case And upon the case then put to Anderson Brian and Fennor they were of the same opinion Quod nota Humble versus Oliver 5. IN Debt by Richard Humble against William Oliver for a Rent reserved upon a Lease for years the case was
the money coming therof a prohibition shall be granted to the Ecclesiasticall Iudge in such a case wherby the Court granted a speciall consultation in the Case to wit that they proceed for the Legacy provided that they charge the Executor no further then he hath in Goods and Chattels of the Testator after his true and due Debts are satisfied And that in the case of the proof of these Debts they allow such proofs as by the Law of the Land are holden to be sufficient in such a case Quod nota benâ— as to the restraining of Ecclesiasticall Courts in their proceedings to bind any subject touching his private temporall Estate against all reason And as to it that they do not intermeddle in any thing belonging to the Common Law of the Realm as Debts and the like against the due course of the Common Law Cawdry versus Atton 5. IN Trespasse brought by Robert Cawdry Clerk against George Atton Vide this Case Coke lib. 5. 1. pa. for breaking his Close at North Luffenham in the County of Rutland upon not guilty and a speciall Verdict the Case appeared to be this to wit that the Plaintiff was Rector Ecclesiae de North Luffenham aforesaid of which the place was parcell and being so seised was deprived of his Rectory by the late Bishop of London and his Colleagues by virtue of the high Commission to them and others diverted because he had pronounced and uttered slanderous and contumelious words against and in depravation of the Book of Common-prayer But the form of the sentence was that the said Bishop by and with the assent and consent of five others of the said Commissioners his Companions and namely which deprived him And further it was not found that the Commissioners named were the naturall Subjects born of the Queen as the Statute enacts that they should be And if the deprivation be void then they find the Defendant guilty and if it were good then they find him not guilty And it was moved that the deprivation was void First Because that wheras the Commission is to them or any three of them of which the said Bishop to be one amongst others it ought to have been the sentence of them all according to the authority given to them which is equall and not that it was done by one with assent of the other Then because it is not found that the Commissioners are the naturall Subjects of the Queen born as by the words of the Statute they should be Another is because the punishment which the Statute provides for those of the Ministry which deprave this Book is to loose the profits of all their Spirituall Promotions but for a year and to be imprisoned by the space of six months and not to be deprived untill the second Offence after that he had been once committed and therfore to deprive him for the first offence was wrongfull and contrary to the Statute But by the whole Court for the form of the deprivation it is that which is used in the Ecclesiasticall Courts which alway names the chief in Commission that are present at the beginning of the Sentence and for the other they mention them only as here but of their assent and consent to it and in such cases we ought to give credit to their form and therfore t is not to be compared to an authority given at Commen Law by Commission And for the matter that is not found that the Commissioners were the naturall Subjects of the Queen born it is to be intended that they were such unlesse the contrary appear But here at the beginning it is found that the Queen secundum tenorem effectum actus predict had granted her Commission to them in causis Ecclesiasticis and therfore it appeareth sufficiently that they were such as the Statute wills them to be And for the deprivation they all agreed that it was good being done by the authority of the Commission for the Statute is to be understood where they prosecute upon the Statute by way of Inditement and not to restrain the Ecclesiasticall Iurisdiction being also but in the Affirmative And further by the Act and their Commission they may proceed according to their discretion to punish the offence proved or confessed before them and so are the words of their Commission warranted by the clause of the Act. And further the Ecclesiasticall Iurisdiction is saved in the Act. And further all the Bishops and Popish Priests were deprived by virtue of a Commission warranted by this clause in the Act And now lately it was agreed by all the Iustices that a Fine of 200. marks set upon one for a vitious liver by the high commission was warranted by virtue of the Commission and Act And therfore if the Act with the Commission are to be consdered in this case wherupon it was agreed that the Plaintiff should take nothing by his Writ Which you may see Hill 33. Eliz. Rot. 315. Hall versus Peart 6. IN an Ejectione firmae brought by William Hall Plaintiff for Land in D. in the County of Somerset upon a Lease made by William Dodington against John Peart and other Defendants upon a speciall Verdict the case appeared to be this That one Iohn Brown was in possession of certain Lands in D. aforesaid Vide this case in Cook lib. 2 32 33. by the name of Dodingâ—ons case which before were parcel of the possessions of the Hospitall or Priory of S. Iohns in Wells the Inheritance therof then being in the late King H. 8. by the Act of dissolutions And the King being so seised by his Letters Patents dated 26. of March 30 H. 8. ex gratia speciali certa scientia mero motu suo granted to Iohn Ayleworth and Ralph Duckenfield omnia illa Messuagia Ter. Tenemt gardina sua quaecunque tune in separabilibus tenuris diversarum personarum which he named particularly amongst which the said Iohn Brown was one in Civitate Wellen. ac in suburbiis ejusdem Civitat exira eandem civitat within the Jurisdictions and Liberties of the said City late parcell of the possessions of the said Hospitall and that the said Iohn Brown had not then any other Lands late parcel of the possessions of the said Hospitall but this in D. and that this Land was quite out of the said City of Wells and of the Suburbs therof and also out of the Liberties and Jurisdiction of the said City and yet it was found that it was in the particular and parcell of the value and valued in it in the Tenure of the said Iohn Brown at 6 s. 8 d. a year and the grant was to the said Iohn Ayleworth and Ralph Duckenfield and to the Heirs of the said Iohn Ayleworth forever And it was moved that the Grant was good to the said Ayleworth and Duckenfield because of the Statute of non-recitall and mis-recitall because it appeareth by the particular and value that it was intended to be passed
And if this doth not passe nothing can passe which was in the Tenure of the said Brown because he had nothing in the places comprised in the Patent But it was agreed by all the Court that it shall not passe by the said Patent in this case for the word illa is to be restraind by that which follows in the Patent where it depends upon a generality as here and that it refers but to that in Wells as the liberty of that which was parcell of the possessions of the said Hospitall and in the Tenure of the said John Brown And if it were not of these possessions or not in Wells c. or not in the Tenure of the said John Brown it shall not passe for the intent of the King in this case shall not be wrested according to the particular or the value which are things collaterall to the Patent but according to his intent comprised in or to be collected by the Patent it self And Popham said that by Grant of omnia terras Tenementa Hereditamenta sua in case of the Queen nothing passe if it be not restraind to a certainty as in such a Town or late parcell of the Possessions of such a one or of such an Abbey or the like in which cases it passeth as appeareth by 32 H. 8. in case of the King But if it be Omnia terras tenementa sua vocat D. in the Tenure of such a one and in such a Town and late parcell of the possessions of such a one there albeit the Town or the Tenant of the Land be utterly mistaken or that it be mistaken of what possessions it was it is good for it sufficeth that the thing be well and fully named and the other mistakes shall not hurt the Patent And the word of Ex certa scientia c. will nof help the Patent in the principall case And the case of 29 E. 3. is not to be compared to this case for it was thus The King granted the Advowson of the Priory of Mountague the Prior being an Alien to the Earl of Salisbury and his Heirs for ever And also the keeping and Farm with all the Appurtenances and Profits of the said Priory which he himself had curing the War with the keeping of certain Cellâ— belonging to the said Priory the said Earl died William Earl of Salisbury being his Son and Heir and within age wherupon the King reciting that he had seised the Earls Lands into his hands after his death for the Nonage of the Heir he granted to the said Earl all his Advowsons of all the Churches which were his Fathers and all the Advowsons of the Churches which belong to the Prior of Mountague to hold untill the full age of the said Heir quas nuper concessit prefat Comiti patri c. In which case although the King had not granted the Advowsons to the said Earl the Father aforesaid by the former Patent because no mention was of the Advowsons therof yet they passe by this Patent notwithstanding that which follows after to wit and which he granted to the Father of the Grantee But there it is by a Sentence distinct and not fully depending upon the former words as here to wit Omnia illa Messuagia c in Wells in the Tenure of the party parcell of the Possessions of such an Hospitall or Priory Quod nota and the difference And because the Defendant claimed under the first Patent and the Plaintiff by the latter Patent it was agreed that the Plaintiff should recover Which you may see in the Kings Bench. Harrey versus Farcy 7. IN an Ejectione firmae brought by Richard Harrey Plaintiff for the Moyety of certain Tenements in North-petherton in the County of Somerset upon a Lease made by Robert Bret against Humfrey Farcy Defendant upon not guilty and a speciall Verdict found the case appeared to be this to wit That Robert Mallet Esquire was seised of the said Tenements in his Demesne as of Fee and so seised demised them to John Clark and Elianor Middleton for term of their lives and of the longer liver of them after which the said Tenements amongst others were assured by Fine to certain persons and their Heirs to the use of the said Robert Mallet for term of his life and after his decease to the use of John Mallet his Son and Heir of his body and for default of such Issue to the use of the right Heirs of the aid Robert Mallet After which the said Robert Mallet having Issue the said John Mallet Christian and Elianor Mallet died the said John Mallet then being within age and upon Office found in the County of Devon for other Lands holden of the Queen in Capite by Knights Service was for it in Ward to the Queen Afterwards the said John Mallet died without Issue during his Nonage and the Lands aforesaid therby descended to his said two Sisters to whom also descended other Lands in the County of Devon holden of the Queen in Capite by Knights Service conveyed also by the same Fine in like manner as the Lands in North Petherton the said Christian then being of the age of 22. years and the said Elianor of the age of 15. yeares upon which the said Christian and Elianor 12. Novemb. 31 Eliz. tendred their Livery before the Master of the Wards and before the Livery sued the said Christian took the said Robert Bret to husband and the said Elianor took to husband one Arthur Ackland after which in the Utas of the Purification of our Lady 32 Eliz. the said Robert Bret and Christian his wife levied a Fine of the said Tenements in North-petherton amongst others to George Bret and John Pecksey Sur conusance de droit come ceo que ils ont de lour done by the name of the Moyety of the Mannor of North petherton c. with warranty against them and the Heirs of the said Christian against all men who tendred it by the same Fine to the said Robert Bret and Christian and the Heirs Males of their bodies the remainder to the Heirs Males of the body of the said Christian the remainder over to the right Heirs of the said Robert Bret which Fine was engrossed the same Term of S. Hillary and the first Proclamation was made the 12th day of February in the same Term the second the first day of June in Easter Term 32 Eliz. The third the 8th day of July in Trinity Term next And the fourth Proclamation was made the 4th day of October in Michaelmas Term next after And the said Christian died without Issue of her body The 9th day of February 32 Eliz. between the hours of 3. 7. in the afternoon of the same day And the 22. of March 32 Eliz. the said Robert Bret by his writing indented dated the same day and year for a certain summ of money to him paid by the Queen bargained and sold gave and granted the said Teuements to the
be avoided and in the same manner here But Popham took a diversity where the Possession or the Estate of the Queen is determined and where not for where the Estate is determined there the Subject may enter into the Land without Office or ouster le main But where the Possession continues there the party shall not come to it unlesse by petition Monstrans de droit officio or the like and therfore hee said that if the Queen had an Estate pur auter vie or depending upon any other Limitation if it be determined according to the Limitation the party who hath interest may enter so in the case of the Devise put before And if a Lease be made for life the Remainder in Tail the Reversion in Fee and he in the Remainder in Tail levy a Fine Sur conusance de droit come ceo que il ad de son done to a stranger with proclamations according to the Statute and afterwards the stranger convey the Remainder to the Queen her Heirs and Successors and after the Tenant for life dies and after he in the Remainder in tail dies without Issue now may he in the Remainder in Fee enter because the Estate of the Queen is determined But here the Queen hath a Fee-simple in her self but determinable upon the Estate-tail which yet remaineth which Fee-simple in Reversion cannot be divested out of the possession of the Queen but by matter of Record of so high nature as it is in her to wit by Petition Monstrans de droit or the like As if a Reversson or Remainder be alienated in Mortmain the claim of the Lord sufficeth therâ— to vest the Reversion in the Lord for the Alienation but if the Reversion or Remainder of which such a claim was made be conveyed to the King his remedy is now by Office Monstrans de droit or Petition for claim will not now serve him for this shall be to divest the possession out of the Queen which by such means cannot be done no more then where a Reversion or Remainder is granted to the Queen upon Condition but he ought to have an Office to find the performance of it if it be to be performed by matter in pais and without Monstrans de droit or otherwise it shall not be divested out of the Queens possession yet in the case of a common person a claim will divest it out of them but not so of the Queen And these cases Gawdy agreed but he conceived that in the case in question the claim made determines the Estate of the Queen which is made by means of the Fine upon the Statute And Popham denied the case put in 7 H. 6. to be Law as it is put upon the opinion of Strange there for it is cleer that the claim there does not divest any possession which was in the King by means of the Wardship and if this be not therby defeated the claim does not help the Disseisee against the Descent and this appeareth fully by Littleton who saith so of a Claime which avoids a Descent to wit that it ought to be such upon which the Disseisee may upon every such Claim made have an Action of Trespasse or Assise against the Dissessor or him who is in possession if he continue his possession after such Claim made which cannot be in this case where the possession is in the King which cannot be defeated by such a Claim And in the Lord Dyer where the Feoffee or Mortgagee of Lands holden of the Queen in Capite by Knights Service died before the day of Redemption his Heir being within age wherby upon Office found the Queen had the Wardship of the body and land of the Heir after which the Mortgagee at the day of redemption made payment and of this also an Office was found yet he could not enter either before or after Office but upon Monstrans de droit therupon he had his Ouster le main And the reason why a Claim shall serve in this case between common persons is because that by such Claim the thing it self is devested out of him who had it before and therby actually vested in him who made the claim As where a Villain purchase a Reversion by the Claim of the Lord the Reversion is actually in him as it is of a Possession by Entry But where he is put to his Claim to devest any thing out of a common person he is put to his Suit to devest it out of the Queen Aad to say that Bret should not take advantage of this Conveyance made to make it good by the Fine I think the Law to be clear otherwise as to this point for the Statute of Fines was made tor the security of Purchasors and Possessors of Land and therfore taken more strongly against them who pretend Right or Title and for the greatest advantage that may be for the Possessors of Lands and therfore the Possessor by what ever means he can may make his Fine to be forceable And therfore the Fine upon this Statute differeth much from a Fine at Common Law for where at Common Law an Infent being a Disseisor was disseised by one who levies a Fine and the year and the day passe without claim of the first Disseisee now was the first Disseisee barred yet if afterwards the Infant who was not bound by the Fine enter the first Disseisee may enter upon him because that by this entry the Fine at Common Law was utterly defeated But now by the Statute such a Fine being levied with Proclamations the first Disseisee not pursuing according to the Statute is barred for ever And although the Infant enter at full age and undoes the Fine as to himself yet this Fine remains alwaies to bar the first Disseissee and makes that the Infant hath now Right against all the world and so now takes advantage therof And this is the intent of the Statute for the repose of Controversies and Suits and the quiet of the people And if I procure a Fine to be levied on purpose to bar another of his Action which he may have against me for the Land yet I shall take advantage of this Fine and the other shall have no advantage against me because of this Covin for if this should be admitted it will countervail the benefit which is intended to be by means of the Statute of Fines And if a Disseisor enfeoffee another upon Condition to the intent that a Fine with Proclamations shall be levied to the Feoffee to bar the Disseisee and after the Disseisee is barred the Disseisor enter for the Condition he shall yet take advantage of the Fine against the Disseisee And Popham put a case which was in this Court 23 Eliz. upon a speciall Verdict which was between Okes Plaintiff upon the Demise of John late Lord Sturton of Cottington which was this The Lord Sturton was Tenant for life of certain Lands in Lighe in the County of Somerset the remainder in Tail
Reversion shall stand hereafter seised and adjudged in lawfull Estate and Possessions of the Lands c. of such an Estate as he had in the Use The words then in the Statute being so precise as they stand to wit that in such case he who hath such an Vse shall have the possession executed of such an Estate as he had in the Vse excludes all other who are not in it to have it to be executed untill that they happen to be in the same case as of that which the Statute speaks And if they had intended to have the Possession to be executed and transferd from the Feoffees to these contingent Vses they would have made some mention therof as well as they did of Reversions and Remainders and they did not leave there but mention this again to wit that the Estate Right Title and Possessions which was in such person or persons which were seised to the use of any such person or persons shall be hereafter cleerly adjudged in him or those who had or have such Vse according to such quality manner form and condition as he had before the use which was in them by which it appeareth plainly that the Right and Possession of the Feoffee shall not be vested in or to any untill that he hath the use it self for it is said that it shall be in him therfore they ought to have somthing in the Vse by the very expresse letter of the Statute before any thing of the Possession shall be executed or transferred by this Statute from the Feoffee to Cestay que use And how can this be said to be within the letter of the Statute which hath so many and so precise words and branches against it And therfore it is cleer that if the Feoffee to use were seised at the time of making of this Statute that the use shall not be executed by this Statute untill there be a regresse made by the Feoffee or in his right to revive the former use and it had been out of the letter of the Statute But to this I say that how precise soever the letter is against the execution of these contingent uses the intent therof is yet more strong precise against them which I will prove cleerly by the Statute it self which is of greater authority then the particular opinion or conceit of any Iudge whomsoever for it is the Iudgment of all the Iudges and all the Realm also which ought to bind all and to which all ought to give credit And to take the intent the Statute was full that it was made as is rehersed for the Disinherison which before was to true Heirs for the defect which before was in the assurance of Purchases for the mischiefs in regard before men did not know by reason of these Vses against whom to bring their Actions to recover their Rights To avoid perjury that it should not be so common as it was by reason of the maintenance and support of these secret Vses for the releif of the King other Lords as to their Escheats Forfeitures Wardships Releases and the like for the mischief which before hapned to Tenants by the Curtesie and in Dower by reason of these Estates in Vse and finally for the great Incoveniencies which hapned by reason of them to the great trouble and unquiet of the People These were the great mischiefs that were before the making of the Statute and these were the things for which the Statute intended to provide remedy and if the exposition shall be as hath been on the other side these mischiefs shall be on every part more mischievous by much then it was before the making of the Statute and that in such a a manner that it shall be impossible to help any of them but by Parliament wheras alwaies the good and true construction of a Statute is to constrain it so that it shall give remedy to the mischief which was before and not to make it more mischievous and therfore examine it by parts And as to the disinherison of two Heirs it appears now that by such exposition more incoveniences will arise and that in a more dangerous degree then before the Statute for before for the Vse the Heir had his remedy in conscience according to the trust and he might have made a disposition of the Land it self by the Statute of Rich. 3. as an Owner for the advancement of his Wife and his Children and for payment of his debts and the like But as the case is now used by means of these perpetuities as they are called if the exposition of the other side shall hold place the true Heir shall not only be continually in danger to loose his Inheritance but by them the very bowels of nature it self shall come to be divided and as rent in peeces for by reason of these the Inheritants themselves cannot make any competent provision for the advancement of their Wives Daughters or youngest Sons as every one according to the course of nature ought to do nor by reason of this can he redeem himself if he were taken Prisoner And this will make disobedience in Children to their Parents when they see that they shall have their Patrimony against their will wherby such Children oftentimes become unnaturall and dissoluts of which I in my time have seen many unnaturall dangerous and fearfull consequences not convenient to be spoken of And it staies not there but it causeth mortall debate as to blood between Cosin and Cosin Brother and Brother and not so only but between the Father himself and his Children of which every one of us have seen the experience for the one ought to be as a watch upon the other to see when any thing happen to be done to give him advantage to disinherit the very true Owner And I say that it is impossible that any can keep his Possessions which hath them tyed with these perpetuities if the exposition of the Statute should hold place which the other side hath made And I affirm precisely that there is not any one in England who hath had such Possessions so bound by descent of Inheritance by five years of any value but that he hath lost all or part of his said Land at this time let him be never so precise in making his Assurances and yet he is not sure to have one skilfull in the Law alwaies at his elbow when he is to meddle with his Land And therfore I put but this Case One who hath such a perpetuity with power to make Leases rendring the ancient Rent or more hath two Farms either of them of the ancient Rent of 20 s. a year but the one is worth 60 l. a year and the other but 20 l. these are in hand to be better together rendring 53 s. 4 d. for both together therfore he hath lost all or part of his Land according to that of which the perpetuity is so it is evident that it will happen to be more mischievous in
doth much concern the Infant in as much as by his false plea he shall be bound to â—nswer of his own Goods if he hath no Goods of his Testator and therfore in a 11 E. 4. 1. he hath remedy against his Guardian for pleading a false Pâ—ea And by Doderidge if he hath no Guardian the Court shâ—ll appoint him a Guardian And if an Infant bring an action as Executor by Attorney and hath Iudgment to recover this is not erronious because it is for his benefit so per Curiam the difference is where he is Plaintiff and where he is Defendant And there is another difference where he is Executor and where not for being Executor his Plea might have been more prejudiciall to him and Coke lib 5. Russels case was agreed for good Law for an Infant may be Executor and may take money for a Debt and make a Release and give an Acquittance but not without a true consideration and payment of the money The same Term in the same Court. Thomas Middletons Case THomas Middleton alias Strickland was condemned for a Robbery at the Where a Felon is condemned and elcapeth and is re-taken upon confession that he is the same party execution may be awarded The Sheriff of Middlesex fined for not attending the Court. Assises in Oxford after which he made an escape and being taken again he was brought to the Bar and upon his own confession that he was the same party who did the Robbery and that he was condemned for it the Court awarded execution And Mountague chief Iustice said thâ—t was no new case for it had been in experience in the time of E. 3. and 9 H. 4. and 5. E. 4. that the Court might so do upon his own confession And because the Sheriff of Middlesex did not give his attendance upon the Court in this case nor came when he was called the Court fined him 10 l And Mountage said that it shall be levied by proces out of the Court and also all other Fines there assessed and not estreated into the Exchequer for then the party might compound for a matter of 20 s. and so the King be deceived The same Term in the same Court. Gouldwells Case IOhn Gouldwell seised of Land in Socage Tenure devised them to his Wife for life the Remainder to John Gouldwell his Son and his Heirs upon Condition that after the death of his Wife he shall grant a Rent-charge to Steven Gouldwell and his Heirs and if John Gouldwell dye withâ—ut Heirs of his body that the Land shall remain to Steven Gouldwell in Tail the Wife dieth John Gouldwell grants the Rent accordingly Stephen Gouldwell grants the Rent over John Gouldwell dies without Heir of his body and the second Grantee distrains for the Rent arrear and Stephen Gouldwell brings a Replevin And it was urged by the Counsell for the Plaintiff that this Rent shall not have continuance longer then the particular Estate and cited 11 H. 7. 21. Edriâ—ks case that if Tenant in Tail acknowledge a Statute this shall continue but during his life and Dyer 48. 212. But it was agreed per Curiam that the Grantee was in by the Devisor and not by the Tenant in Tail and therfore the Grant may endure for ever But for the second point this being to him in Remainder the intent of the Demisor is therby explained that he shall have the Rent only untill the Remainder come in possession for now the Rent shall be drowned in the Land by unity of possession 3. It was agreed and resolved that by the granting of the Kent over this was a confirmation And Mountague said that it was a confirmation during the Estate Tail and shall enure as a new grant afterwards And Haughton and Doderidge said that they would not take benefit of the grant over by way of confirmation for as Haughton said this enures only ought of the Devisor and he hath power to charge the Land in what manner he pleaseth and it is like to an usuall case as if a man makes a Feoffment in Fee to the use of one for life the Remainder over with power to make Leases and after he makes a Lease this is good against Tenant for life and him in the Remainder also And I have considered what the intent of the Devisor should be in granting of this Rent and it seems to me that in as much as the Land is limited in Tail and the Rent in Fee that by this the Grantee shall have power to grant or dispose of the Rent in what manner he would but if the Land had been in Fee I should have construed his intent to have been that the Grantee should have the Rent only untill the Remainder fall to which Doderidge agreed who said that we are in the case of a Will and this construction stands with the intent of the Devisor and stands with the Statute which saies Quod voluntas Donatoris est observanda The same Term in the same Court. Baskervill versus Brook A Man became Bail for another upon a Latitat in the Kings Bench and before Iudgment the Bail let his Lands for valuable consideration Difference between baile in the Kings Bench and the Common Pleas. And how a bail shall relate And afterwards Iudgment was given for the Plaintiff And now it was debated whether the Land Leased shall be liable to the Bailment and it was said by Glanvill of Councell with the Lessee that it ought not to be liable and he put a difference between a Bailment in this Court and a Bailment in the Common Pleas for there the Suit cometh by originall and the certainty of the debt or demand appeareth in the declaration and therfore then it is certainly known from the begining of the Bailement for what the Bail shall be bound But in this Court upon the Latitat there is not any certainty untill Iudgment given before which the Land is not bound and now it is in another mans hands and therfore â—ot liable and he puts Hoes case Co. lib. 5. 70. where iâ— was resolved that where the Plaintiff releaseth to the Bail oâ— the Defendant upon a Suit in the Kings Bench before Iudgment all Actions Duties and Demands that this Release shall not bar the Plaintiff for there is not any ceâ—tain duty by the Bail before Iudgment and therfore it cannot be a Release and he citeâ— the case of 21 E. 3. 32. upon an account and said that it was like to a second Iudgment in that which reduceth all to a certainty and therfor c. But it was said by Mountague and Crook that the Lessee shall be bound for otherwise many Bailments and Iudgments shall be defeated which will bring a great Inconvenience And Mountague said that it was like to the case of a bargain and sale of Land which after it is Inrolled within six moneths shall relate to the beginning of the Bargain so upon the Iudgment given relation is made from the time
covenant to pay joyntly and severally according to the quantity of the Wares there an action of Covenant may be brought against one alone for the Deed is severall And by Crew chief Iustice it cannot be a good Traverse for a circumstance cannot be traversed for wind is alterable and a thing materiall is only traversable and here the Covenant is severall for their severall Fraughts and it may be that others have paid him Jones Iustice the traverse is not good and for the other matter he cited Mattheusens case Co. lib. 5. 22. Where upon a Charter party if one seal be broken all is gone If three are bound ioyntly and an action is brought against one and it appeareth that others have sealed the Writ shall abate But in this case an action lies against him alone although the other be named in the Indenture The same Term in the same Court intr Hill 22. Jac. Rot. 1019. Millen versus Fandrye AN action of trespasse was brought for chasing of Sheep the Defendant pleaded that they were trespassing upon certain land and he with a little Dog chased them out and as soon as the Sheep were cut of the land he called in his Dog and upon this the Plaintiff demurred The point singly was but thus J chase the Sheep of another out of my ground and the Dog pursues them into another mans land next adjoyning and J chide my Dog Iustification in trâ—spase and the Owner of the Sheep brings trespasse for chasing of them And it was argued by Whistler of Grays-Inne that the justification was not good and he cited Co. lib. 4. 38. b. that a man may hunt Cattell out of his ground with a Dog but cannot exceed his authority and by him an authority in Law which is abused is void in all and to hunt them into the next ground is not justifiable The Books differ if Cattell stray out of the high way involuntarily whether Trespasse lies 7 H. 7. 2. and H. 7. 20. but all agree that they ought to be chased out as hastily as may be Littleton argued for the Defendant that Cattell may be chased out into another mans ground and he said that a man cannot have such a power upon his Dog as to recall him when he pleaseth and a Dog is ignorant of the bounds of Land and he resembled this case to other cases of the Law first to 21 E. 4. 64. In Trespasse of Cattell taken in A. in D. the Defendant saith that he was seised of four acres called C. in D. and found the Cattell there Damage feasant and chased them towards the Pound and they escaped from him and went into A. and he presently retook them which is the same Trespasse and admitted for a good plea and 22 E. 4. 8. In trespasse the Defendant justifies by reason of a custom that they which plow may turn their Plow upon the Land of another and that for necessity and it was allowed for a good justification and he hath more government of his Oxen then in our case he can have of his Dog If a man be making of a lawfull Chase and cannot do it without damage to another this is Damnum absque injuria 21 H. 7. 28. And he cited a case which was in Mich. 18 Jac. between Jenning and Maystore where a man of necessity chased Sheep for taking one of his own in trespasse he may justifie it And also if a Dog goes into the Land of another as in this case trespasse does not lye but otherwise it is of Cattell Crew chief Iustice it seems to me that he might drive the Sheep out with the Dog and he cold not withdraw his Dog when he would in an instant and therfore it is not like to the case of 38 E. 3. Where trespasse was brought for entring into a Warren and there it was pleaded that there was a Pheasant in his Land and his Hawk flew and followed it into the Plaintiffs ground and there it seems that it is not a good justification for he may pursue the Hawk but cannot take the Pheasant 6 E. 4. a man cuts Thorns and they fell into another mans Land and in tresgasse he justified for it and the opinion was that notwithstanding this justification trespasse lies because he did not plead that he did his best endeavour to hinder their falling there yet this was a hard case But this case is not like to these cases for here it was lawfull to chase them out of his own Land and he did his best endeavour to recall the Dog and therfore trespasse does not lye Doderidge Iustice agreed for here was no hedge and when he saw them out of his own ground he rated the Dog 12 H. 8. this difference is taken if I see Sheep in my Land I may chase them out but if another sees them and chase them out I may have trespasse against him because he hath taken away For an involuntary trespasse action doth not lye my advantage and the nature of a Dog is such that he cannot be ruled suddenly and here it appeareth to be an involuntary Trespasse 8 E. 4. A man is driving Goods through a Town and one of them goes into another mans house and he follows him trespasse doth not lye for this because it was involuntary and a trespasse ought to be done voluntarily and so it is Injuria and a hurt to another and so it is Damnum If Deer be out of a Forest the Owner of the Land where they are may hunt them and if the Deer flye to the Forest and the Hounds pursue him then he ought to call in the Dogs and so I may justifie and trespasse lies not In the time of chief Iustice Popham this case was adjudged in this Court Trespasse was brought for hunting and breaking of hedges and the case was that a man started a Fox in his own land and his Hounds pursued him into another mans Lands and it was holden that he may hunt and pursue him into any mans land because a Fox is a noysom creature to the Common-wealth Bracton saith that when a man is outlawed he hath Caput lupinum and he may be hunted through all the County And he agreed the case of 8 E. 4. If a Tree grow in a hedge and the Fruit fall into another mans land the Owner may fetch it in the other mans land and he also agreed the case of 22 E. 48. of the Plew and so concluded that the trespasse doth not lye Jones Iustice that the trespasse doth not lye vide Co. lib. 8. 67. Crogates case and lib. 4. Terringhams case and he cannot recall his Dog in an instant And the same day Iudgment was given for the Defendant Quod quaerens nil capiat per billam The same Term in the same Court. Marsh versus Newman IN a Replevin the Defendant pleaded that was seised In jure Collegii and doth not say that he was in Dominico suo ut de foedo and the Plaintiff
demurred upon the Avowry And Andrews argued for the Plaintiff 1. The Defendant ought to have alleadged certainly that they were seised in Fee for Littleton saith that in Counts and pleadings a man ought to shew how he is seised 8 E. 3. 55. 13 Eliz. Dyer 299. Pl. 31. An Inquisition was found upon an extent of a Statute-merchant and doth not shew how the Conusor was seised but only that he was seised and the Inquisition holden void But it may be objected that if Land be given to a Dean and Chapiter that they have fee 11 H. 7. 12. I confesse it But the constant use of pleading hath alwais been in case of a Bishop Colledge c. to say that they were seised in Fee as appears in Hill and Granges case and Co. lib. 6. the Dean and Chapiter of Worcesters case and Co. lib. 11. 66. Magdalen Colledge case and it appeareth by 20 H. 7. in the Abbey of S. Austins case that an Abbey may have a Lease Prae auter vie and so perhaps here the Dean had a Lease but Prae auter vie and therfore ought to have alledged that he was seised in Fee if the truth were so And he moved other exceptions as 1. That the Defendant intitled himself to a Lease as Executor and doth not plead Literas testamentarias 2. That the Defendant entitles himself to a Rent part of which was due in the time of the Testator and part in his own time and doth not shew when the Testator died and therfore the Avowry not good Jermy for the Defendant that the Avowry is good and it cannot be otherwise intended but that they are seised in Fee 11 H. 7. Lands given to a Major and Comminalty is Fee-simple but otherwise of an Abbot and Parson Plow 103. and Dyer 103. A Seisin in Fee is implied by Seisin In jure Collegii and because it hath been objected that he may be seised Prae auter vie this is but a forraign intendment for a Fee is alwaies intended Seisin in Fee-simple For the second objection because Non profert literas testament true it is if he entitle himself meerly as Executor he ought to bring in Literas testamentar but our case is not so for here we are Defendants and we endeavour only to excuse a Tort 36 H. 6. 36. Where a man is Plaintiff he ought to show Literas testamentar that so the Court may see that he hath cause of action but here it is only by way of excuse For the third that the death of the Testator doth not appear is not materiall for if any part be due to him it is due as Executor Doderidge they ought to have pleaded that they were seised in Fee true it is that Land given to a Major and Comminalty is Fee-simple and the reason is because they are perpetuall and if the Estate be not limitted they shall take according to their continuance 11 H. 4. 11 H. 7. and 27 H. 8 Dockrayes case they may be seised Prae terme dauter vie but if they had pleaded that they were seised to them and their Successors this pleading is good Prima facie 17 E. 3. 1. Crew chief Iustice all the authorities are that ther were seised in Fee Injure Collegii and it is good to admit a new way of pleading Jones Iustice Tenant Prae auter vie makes a Lease for years and cestui que use dies he cannot have an action of Debt against Lessee for years for years for he is now Tenant at sufferance But for the first point it seems to him that the pleading is not good for although in point of Creation they take a Fee by a Gift to Dean and Chapiter yet in pleading they ought to alledge their Estate specially for they may have an Estate Prae auter vie And this is in an Avowry which shall be taken strickly And by Crew chief Iustice the Defendant here ought to shew Literas testamentar for he is an especiall Actor in the Avowry And by Doderidge Longissimum vitae tempus est 100. years Co. lib. 10 50. Lampets case and therfore in pleading if the Defendant had said that a Dean and Chapiter were seised and made a Lease for 200. years this implies a Seisin in Fee because a man cannot have so long a life but here the Lease is but for 89. years and it is common to let for 89. years if A. shall so long live yet this is but a slip and the Title is apparant The same Term in the same Court. Hodges versus Moore IN Debt for marriage money the case was this A man was bound to Hedges to pay him a 1000 l. after that he had married his Daughter and afterwards he married her and brought Debt upon this Obligation and it was not averred that he had given notice to him of the marriage but demanded the money And this was moved by Noy in Arrest of Iudgment but quaere if request afterwards doth not implynetice And Doderidge Iustice put this case A man is bound to pay a 100 l. two Where notice is requisite before action and where not moneths after A. return from Rome he ought to give notice of his return before that he can have an action upon this Obligation for he may land at Newcastle or Plymoth where by common intendment the Obligor cannot know whether he be returned or not and this was agreed by the chief Iustice and Jones And Serjeant Davies argued for the Plaintiff that there need not precise notice to be given and he cited 1 H. 7. 18 E. 4. and Co. lib. 8. Where the Obligor shall take notice at his perill and so here because he takes upon him â—or to pay it And it was said that one Blackamores case was adjudged in the point and he conceived also that this request afterwards is a sufficient notice But Noy for the Defendant said that he ought to give notice or otherwise this mischief would ensue that if he had not married her and yet had demanded the money he ought to pay it and he said that where an act is to be done by a stranger the Plaintiff or Defendant ought to take notice therof at his perill as the case E. 4. where a man was bound to stand to the Award of I. C. he ought to take notice of the Award at his perill but where it lies properly in the Conusance and notice of the Plaintiff there he ought to give notice therof to the Defendant Co. lib. 5. Mallories case If a Reversion be bargained and sold to J. S. the Bargainee shall have the Rent without Attornment but if a penalty be to be forfeited he ought to give notice to the particular Tenant of the Grant or otherwise he shall not take advantage therof and he cited a case which was in 17 Eliz. Stephen Gurneys case Lessee for years the Reversion is granted over for years by way of future Interest to begin upon the death forfeiture or determination of the first Lease