the Justices did agree that the assignement was good but that the two assignees could not work severally but together with one stock or such workmen as belonged to them both And Cook who reported the opinions of the Justices was of Counsel with the Lord Mountjoy And note in that case it was said That Proviso being coupled with other words of covenant and grant doth not create a Condition but shall be of the same nature as the other words with which it is coupled Pasch 25. Eliz. In the Common Pleas. 25. WEBBE and POTTER'S Case In an Ejectione firme the Case was this JOhn Harris gave Land in Frankmarriage to one White And the words of the Deed were Dedi concessi I. W. in liberum maritagium Joannae filiae suae Habendum eidem J. W. haeredibus suis in perpetuum tenendum de Capitalibus Dominis fâ—odi c. with warranty to the Husband and his heirs Periam Justice although the usuall words of gift in Frankmarriage are not observed yet the Frankmarriage shall not be destroyed for the usuall words are In liberum maritagium cum Joanna filia mea in the ablative case And it was holden by all the Justices that notwithstanding that the Frankmarriage was good Also a gift in Frankmarriage after the espousals is good as it was holden by all the Justices And see Fitz. Tit. Taile 4. E. 3. and 2. H. 3. Dower 199. And he said That a gift in Frankmarriage before the Stat. of Donis c. was a Feesimple but now it is but a special tail and if it should not be in law a gift in Frankmarriage then the Husband and Wife have an estate but for their lives for they cannot have an estate taile for that there are not words of limitation of such estate in the gift And hee cited 4. E. 3. and 45. E. 3. 20. to prove his opinion and hee much relyed upon the intent of the Donor which ought to be observed in construction of such Gifts according to the Statute And because the Habendum is repugnant to the premisses and would destroy the Frank-marriage it is void and the premisses shall stand good and to prove that he cited 9. E. 3. 13. E. 1. 32. E. 1. Tit. Taile 25. 3. H. 4. by Hill And he took this difference Where a Remainder is limited upon a Gift in Frankmarriage to a stranger and where it is limited to one of the Donees for in the first case the Remainder is good for the benefit of the stranger but in the second case it is void And he said that if a Rent be reserved upon such a Gift that it should be void during the four degrees but afterwards the Reservation should be good And if the Donor grant the Reversion over and the Donee in Frank-marriage attourn now he shall pay rent to the Grantee for by Littleton he hath lost the Priviledg of Frankmarriage viz. the Aquitall and no privitie is betwixt the Grantee and the Donees 10. Ass 26. 4. H. 6. That it is not any taile if it be not Frankmarriage Windham Justice Although it be no estate in Frankmarriage yet is it an estate taile and he cited 8. E. 3. although there want the word Heirs Also if a man give lands to another semini suo it is good 45. E. 3 Statham taile If it be not Frankmarriage yet it is a good estate in taile 19. Ass Land was given to Husband and Wife in Frank-marriage infra annos nubiles and afterwards they are divorced the Wife hath an estate in taile Meade Justice did agree with Windham and said That although there be not any Tenure nor any Aquitall yet it may be a good Frankmarriage as if a Rent Common or Reversion be given in Frankmarriage it is good and yet there is not any Tenure nor aquitall Dyer Chief Justice conceived That it is not Frankmarriage because that the usuall words in such Gifts are not observed for he said that the gift ought to be in liberum Maritagium and not Joannae filiae suae for that is not the usuall form of the words And he said That if the word Liberum be omitted that it is not Frankmarriage for that he said is as it were a Maxime and therefore the usuall words ought to be observed And by the same reason such a Gift cannot be with a man but ought to be with a woman also such a Gift ought to be with one of the blood of the Donor who by possibilitie might be his Heir Also there ought to be a Tenure betwixt the Donor and Donee and also an Aquitall And if these grounds and ceremonies be not observed it is not Frankmarriage Also if it once take effect as a Frankmarriage and afterwards the Donor granteth the Reversion over or if the Reversion doth descend to the Donees yet it shall not be utterly destroyed but shall remaine as an estate taile and not as an estate for life because it once took effect in the Donees and their issues as a Frankmarriage 31. E. 1. taile 116. If a man give lands in Frankmarriage the remainder to the Donees and the heirs of their bodies yet it is a good Frankmarriage And if a man give Lands in Frankmarriage the Remainder to another in taile it shall not destroy the Frankmarriage because that the Donor hath the Reversion in Fee in himself and the Donees shall hold of him and not of him in the Remainder in taile but if the Remainder had been limited to another in Fee simple then it had been otherwise Also if the Donor grant the Services of the Donees in Frankmarriage reserving the Reversion to himself it is no good Grant although that the Donees attourne for that the Services are incident to the Reversion but if he grant the Reversion then they do passe And he concluded That the Husband had the whole and that the Wife had nothing for she was no purchaser of the premisses because that the Gift did not take effect as a gift in Frankmariage And he said that he doth not construe it so by the intent of the Gift for here is an expresse limitation of the Fee to the Husband and his heirs which shall not be contradicted by any intendment for an Intendment ought to give way to an expresse Limitation as a consideration implyed ought to give place to a consideration expressed And afterwards this yeer it was adjudged that it was not a Frankmarriage nor a Gift in taile but that it was a Fee simple And the Justices said that although the old books are That where it takes not effect as a Frankmarriage that yet it shall take effect as an estate taile those Books are against Law But they agreed That where once the Gift doth take effect as a Frankmarriage that by matter ex post facto it might be turned to an estate in taile Pasch 26. Eliz. In the Common Pleas. 26. MEade and Windham the other Justices being absent were of opinion That a
taile and waives the Lands taken in Exchange and before any other entry the heir of B. enters upon the Land which was given in Exchange and the opinion of the whole Court was That it was no breach of the Condition because that was not the Land of the Devifor at the time of the devise therefore it was out of the Condition Mich. 28 29. Eliz. In the Common Pleas. 116. PLYMPTON'S Case AN Action of Debt was brought by one Plympton and his wife Executors of one Dorrington upon a Bond with Condition to perform Covenants of an Indenture of Lease whereof one Covenant was That he should pay forty shillings yearly at the Feast of the Annunciation or within fourteen days after And the breach assigned was for not payment at such a Feast in such a year The Defendant said That hee paid it at the Feast upon which they were at issue And upon evidence given to the Jury it appeared That the same was not paid at the Feast but in eight dayes after it was paid And the opinion of the Court was That by his pleading that hee had paid it at such a day certain and tendring that for a speciall issue That hee had made the day part of the issue and then the Defendant ought to have proved the payment upon the very day But if the Defendant had pleaded That hee paid it within the fourteen dayes viz. the eighth day c. that had not made the day parcell of the issue but then hee might have given evidence that he paid it at another day within the fourteene dayes Then for the Defendant it was moved That the Plaintiffe had not well assigned the breach in saying that he had not paid it at the Feast without saying Nor within the fourteen dayes But the Court said That the Jury was sworn at the Barre and bid the Councell proceed and give in their evidence for the time to take exception was past Mich. 28 29. Eliz. in the Common Pleas. 117. IT was the opinion of Anderson Chiefe Justice and so entred by the Court That if a Copie-holder doth surrender to him who hath a Lease for years of the Mannor to the use of the same Lessee That the Copie-hold estate is extinct For the estate in the Copie-hold is not of right but an estate at will although that custome and prescription had fortified it And Wray said That it had been resolved by good opinion That if a Copie-holder accept a Lease for years of the Mannor that the Copie-hold estate is extinct for ever Mich. 28 29. Eliz. in the Common Pleas. 118. Anderson Chiefe Justice and Periam Justice being absent in a Commission upon the Queen of Scots Shuttleworth moved this case to the Court. If the Queen give Lands in taile to hold in Capite And afterwards granteth the Reversion how the Donee shall hold Windham Justice and Fenner Serjant The tenure in this case is not incident to the Reversion and the Donee shall hold of the Queen as in grosse and so two Tenures in Capite for one and the same Land And thereupon Windham Justice cited 30. H. 8. Dyer 45 46. That the Queen by no way can sever the tenure in chiefe from the Crown And therefore if the Queen do release to her Tenant in Capite to hold by a penny and not in Capite it is a void Release for the same is meerly incident to the Person and Crown of the Queen But Rodes Justice held the contrary viz. That the Tenure in Capite doth not remain But it was said by Windham That if the Queen had reserved a Rent upon the gift in tail the Grantee of the Reversion should have it Also he said That the Queen might have made the Tenure in such manner viz. to hold of the Mannor or of the Honor of D. Shuttleworth If Lands holden of the Mannor of D. come to the King may he give them to be holden of the Mannor of S that should be hard Windham I did not say That Lands holden of one Mannor may be given to be holden of another Mannor perhaps that may not bee but Lands which is parcell of any Mannor may be given Vt supra Mich. 28 29 Eliz. in the Common Pleas. 119 SErjeant Fenner moved Case If Lands be given to the Husband and Wife and to the heirs of their two bodies and the Husband dieth leaving Issue by his Wife and the Wife makes a Lease of the lands according to the Statute of 32. H. 8. If the Lease be good by the Statute Windham and Rodes Justices conceived that it is a good Lease Fenner The Statute saith that such Lease shall be good against the Lessor and his Heirs and the Issue doth not claim as Heir to the Wife onely but it ought to be Heir to them both and he cited the case That the Statute of R. 3. makes Feoffments good against no heirs but those which claim onely as Heirs to the same Feoffors c. So here Rodes Justice There the word only is a word efficacy And Windham agreed cleerly That the Lease should binde the issue by the said Statute of 32. H. 8. Mich. 28 29. Eliz. In the Common Pleas. 120 WAlmesley Serjeant moved this Case If a man deviseth Lands in taile with divers Remainders over upon condition that if any of them alien or c. that then he who is next heir to him to whom the land ought to come after his decease if the said alienation had not been made might enter and enjoy the land as if he had been dead But Ady of the Temple said That the words of the Devise are viz. That if any of them alien or c. that then his estate to cease and hee in the next Remainder to enter and retain the land untill the aliener were dead Rodes Justice The Devise is good and an estate may cease in such manner so as it shall not be determined for ever but that his Heir after him shall have it And he put the case of Scholastica Plow Com. 408. where Weston fo 4. 14. was in some doubt that if the Tenant in talle had had Issue if the Issue should be excluded from the land or whether hee should have the land by the intent of the Devisor And therefore if it were necessary to shew that the Tenant in taile had not Tssue But Dyer said that the words of the Will were that such person and his Heirs who alien or c. should be excluded presently so as the estate by expresse words is to be determined for ever But it is otherwise in this Case Windham doubted of the Devise Fenner cited the Case 22. E. 3. 19. Where a Rent was granted and that it should ceâ—se during the Nonage of the Heir of the Grantee and it was good Windham When a thing is newly created he who creates it may limit it in such manner as he pleaseth Fenner 30. E. 3. 7. Det. 10. A Feoffment was made rendring Rent upon
in tail may have a Formedon against the Bishop But in our Case it is otherwise Tenant in tail maketh a Feoffment and takes back an estate unto himself in tail the remainder in Fee to his right heirs The Bishop in such case shall not have the land forfeited for Treason because that the Bishop cannot have the estate tail but in such case the King shall have the Land by the Statute of 26 H. 8. cap. 13. And the Bishop in such case shall not have the Fee because it is one estate and the King shall not wait upon the Subject viz the Bishop The Right waits upon the possession For 11 H. 7. 12. If the son and a stranger disseiseth the father and the father dyeth this right infuseth it self into the possession and changeth the possession And it is a Release in fact by the father to the son 9 H. 7. 25. Br ' Droit 57. A Disseisor dyeth seised and his heir enters and is disseised by A. The first Disseisee doth release unto A. all his right All the right is now in the second Disseisor viz. A. because the right and the possession meet together in A. 40 E. 3. 18. b. Tenant in tail makes a Lease for life with warranty If Tenant for life be impleaded by the heir to whom the warranty doth discend he shall rebut the right in tail being annexed with the possession for that is in case of a saving of the land by that right But where one demands land there all the Right ought to be shewed 11 H. 4 37. If a man be to bring an Action to recover then he ought to make a good title by his best right if he hath many rights But if a man be in possession and an Action be brought against him then he may defend himself by any of his rights or by all his rights 11 H. 7. 21. Tenant in tail maketh a Feoffment to his use upon Condition and afterwards upon his Recognisance the land is extended and afterwards the Condition is performed yet the interest of the Conusee shall not be avoided For although the Extent come upon the Fee and not upon the Tail yet when the Extent was it was extracted out of all the rights C. 7. part 41. A Tenant in tail makes a Lease for life now he hath gained a new Fee by wrong and afterwards he makes a Lease for years and Tenant for life dyeth He shall not avoid his Lease for years although he be in of another estate because he had a defeicible title and an ancient right the which if they were in several hands shall be good as the Lease of the one and the Confirmation of the other And being in one hand it shall be as much in Law as a saving of the Right In our Case the Right and Possession both were in Francis Bigot And Ratcliffe is entitled to the old estate tail and to the new also There is a difference betwixt him who claims the land so forfeited to the King and the heir of the body of the person attainted Littâ—719 Land is given to A and the issue males of his body the remainder to the heirs females of his body If the Father commit Treason both heir male and female are barred for they both claim by the Father but if the heir male after the death of his Father be attainted of Treason the King shall have the lands as long as he hath issue male of his body and then the heir female shall have the lands for she shall not forfeit them because she claimeth not by the brother but by the father Com. in Manxels case A man hath three several rights of estate tails and comes in as Vouchee If the Recovery pass it shall bar all his Rights for one Recompence and they shall be all bound by one possession There is a difference where the Kings title is by Conveyance of the party and where for forfeiture for Treason by this Statute of 26 H. 8. cap. 13. v. the Abbot of Colchesters Case The Abbot seised in the right of his house did commit Treason and made a Lease for years and then surrendred his house to the King after the Statute of 26 H. 8. The question was whether the King should avoid the Lease It was adjudged That the King was in by the surrender and should not avoid the Lease and not by the Statute of 26 H. 8. But if the King had had it by force of the Statute then the King should have avoided the Lease Com. 560. Tenant in tail the reversion to the King Tenant in tail maketh a Lease for years and is attainted of Treason The King shall avoid the Lease upon the construction of the Statute of 26 H. 8. which gives the lands unto the King for ever The third point is upon the Remitter This point had been argued by way of Admittance For as I have argued The ancient right is given away unto the King and then there is no ancient right and so no Remitter There is a difference where the issue in tail is forced to make a Title and where not In point of defence he is not so precisely forced to make his Title as he is in case of demand Whereas the Defendant demands the lands from the King the Discent will not help him because the Attaindor of the Ancestor of Ratcliffe hinders him in point of title to make a demand Dyer 332 b. In this case he ought to make himself heir of the body of Francis Bigot and Katharine C. 8. part 72. C. 9. part 139 140. There Cook couples the Case of Fine levied and the Case of Attaindor together C. 8. part 72. Land is given to husband and wife and to the heirs of their two bodies The husband alone levies a Fine with proclamations Or is attainted of Treason and dyeth The wife before Entry dyeth The issue is barred and the Conusee or King hath right unto the land because the issue cannot claim as heir to them both viz. father and mother for by the father he is barred 5 H. 7. 32 33. C. 9. part 140. Husband and wife Tenants in tail If one of them be attainted of Treason as it was in our Case the lands shall not discend to the issue because he cannot make title And there Cook puts the Case That if lands be given to an Alien and his wife they have a good estate tail and yet it is not discendable to the issue The Consequence then of all this is That if Ratcliffe cannot take advantage of the discent by reason of the disability by Attaindor à fortiori he shall not be remitted And yet I confess that in some Cases one may be remitted against the King Com. 488 489 553. But that is where the King is in by matter of Law by Conveyance but in this Case the King is in by an Act of Parliament and there shall be no Remitter against a matter of Record Another reason is because that
E. 3 17 a. Persay Executors cannot make a Feoffment but they ought to make a Sale and the Vendee viz. the Bargainee is in without Livery and Seisin But if they do make a Feoffment by the Livery all their right is given away But if an Attorney giveth Livery in the name of his Master nothing of his own right to the same Land is given away by the Livery and Seisin but if he maketh Livery in his own name then he giveth away his own right and the Statute of 1 R. 3. cap. 1. maketh the Feoffment good which is made by Cestuy que use against him and his heirs C. 1. pt 111. By Livery and Seisin his whole right is given away Com. 352. The Feoffees of Cestuy que use are disseised the Disseisor enfeoffeth Cestuy que use who enfeoffs a stranger And the Question was If by this Feoffment made by Cestuy que use the right of the first Feoffees were determined and extinct Fitzherbert held that the right was gone and in that case the Uses were raised after 1 R. 3. and before 27 H. 8. cap. 10. Although Yelverton held that it was meant of a Feoffment before the Statute of 1 R. 3. Jus recuperandi was in Francis Bigot Then the question is Whether this Right were given away by the Statutes of 26 31 H. 8. The Statute of 26 H. 8. 31 H. 8. are several and distinct Statutes The words of the Statute of 26 H. 8. are That the party offending shall forfeit all his Possession and Vse but there is no word of Right in the Statute and that Statute doth not extend to give any land but that which was in possession or use And the cause was because before that Statute of 26 H. 8. Uses were not given unto the King for Attaindor for Treason they being but a Trust and Confidence C. 11. part 36 b. The Statute sayes By any wayes title or means But observe when this Statute was made It is a penal Statute and therefore shall be taken strictly Stamford 129 b. C. 11. part 36 b. The Statute of 5 6 E. 6. takes away Clergy but if a stranger be in the house by licence of the Owner the party shall have his Clergy because out of the words and being a penal Law it shall be taken strictly The Statute of 33 H. 8. cap. 20. forfeits for Treason Right to the Land viz. right of Entry but the Statute of 26 H 8. giveth not any Right Before the Statute of 33 H. 8. a right of Entry was not given to the King for Treason à fortiori a right of Action was not forfeited to the King It is the Statute of 31 H. 8. the private Act which hurteth us which expresly gave Rights But this Right in our Case is not forfeited by this Statute which giveth Rights which a man hath But in our Case Francis Bigot had not the Right but the Right was in abeyance Statutes in points of Forfeiture forfeit no more then a man hath But yet a Statute may give to the King that which a man hath not C. 11. part 13. The statute of Monasteries gave that to the King which was not viz. Monasteries in reputation saving to none but strangers no not to the Donors Hussies Case Tenant in tail doth bargain and sell to the King and a statute gave it to the King saving to strangers but neither the Donor nor his issue were within the saving Old Entries 423. b c d. It was enacted That the Duke of Suffolk should forfeit for Treason all his Lands Rights and Tenements and all such Rights and Titles of Entry which he had But thereby rights of Action were not given to the King but only rights of Entries The statutes of 31 33 H. 8. are alike in words If Tenant in tail the Remainder over forfeit c. the Remainder is saved without words of saving But if the statute giveth the land by name unto the King then the Remainder is not saved but is destroyed If a Right of Action be given unto the King the statutes of Limitation and Fines are destroyed for he is not bound by them C. 485 486. in point of forfeiture Stamf. 187 188. There is a difference betwixt real and personal Rights given to the King C. 3. part 3. A right of Action concerning Inheritances are not forfeited by Attaindor c. But Obligations Statutes c. are forfeited by Attaindor C. 7. part 9. A right of Action is not given to the King by general words of an Act because it lieth in privity And it would be a vexation to the subject if they should be given C. 4. pt 124. Although that a Non compos mentis cannot commit Felony yet he may commit Treason for the King is Caput salus reipublicae If Non compos mentis maketh a Feoffment and then committeth Treason the King shall not have an Action to recover the Land of the Non compos mentis as the party himself may have But if Non compos mentis be disseised and then be attainted of Treason then the King may enter into the Lands because the party himself had a right of Entry which is given to the King It was objected That a right of Action clothed with a possession might be given to the King Tenant in tail discontinues and takes back an estate and is attainted of Treason This right of Action shall not be forfeited to the King for his right of Action was to the estate tail In our Case the right of Action was to Katherine for she was Tenant for life The Attaindor was 29 H 8. and the Act which forfeited the Right was made 31 H. 8. and then the right and possession were divided 30 H. 6. Grants 91. The King may grant the Temporalties of a Bishop before they happen to be void And so he may grant a Ward But the King cannot grant the Lands of J. S. when he shall be attainted of Treason for the Law doth not presume that J. S. will commit Treason The Devise of a Term the Remainder over is good But if the Devise be of a Term to one in tail the Remainder over the Remainder is void because the Law doth presume that an estate in tail may continue for ever C. 8. part 165 166. The Law did not presume that Digby at the time of the Conveyance intended to commit Treason It was objected That whatsoever may be granted may be forfeited I deny that C. 3. part 10. by Lumley's Case If the issue in tail in the life of his Father be attainted of high Treason and dyeth it is no forfeiture of the estate tail But if the issue in tail levieth a Fine in the life of his Father it is a bar to his issues C. 3. part 50. Sir George Brown's Case 10 E. 4. 1. there Executors may give away the goods of the Testator but they cannot forfeit the goods of their Testator Com. 293. Osborns Case Guardian in
the Kings Bench by the opinion of the whole Court the Judgment was reversed Trin. 21 Jacobi Intratur Hill 20 Jac. Rot. 137. in the Kings Bench. 444. KITE and SMITH's Case ONe Recovered by Erronious Judgment and the Defendant did promise unto the Plaintiffe That if he would forbear to take forth Execution that at such a day certain he would pay him the debt and damages And Action upon the Case was brought upon that Promise And now it was moved by the Defendants Councel That there was not any Consideration upon which the Promise could be made because the Judgment was an Erronious Judgment It was adjourned But I conceive that because it doth not appear to the Court but that the Judgment is a good Judgment that it is a good Consideration Otherwise if the Judgment had been reversed by a Writ of Error before the Action upon the Case brought upon the Promise for there it doth appear judicially to the Court that the Judgment was Erronious Trin. 21 Jacobi in the Kings Bench. 445. TOTNAM and HOPKIN's Case AN Action upon the Case was brought upon an Assumpsit And the Plaintiff did declare That in Consideration of c. the Defendant 1 Martii did promise to pay and deliver to the Plaintiffe 20 Quarters of Barley the next Seed-time Upon Non Assumpsit pleaded it was found for the Plaintiffe It was moved for the Defendant That the Plaintiffe ought to have shewed in his Declaration when the Seed-time was which he hath not done But it was answered That he needeth not so to do because he brings his Action half a year after the Promise for not payment of the same at Seed-time which was betwixt the Promise and the Assumpsit Dodderidge Justice If I promise to pay you so much Corn at Harvest next If it appeareth that the Harvest is ended before the Action brought it is good without shewing the time of the Harvest for it is apparent to the Court that the Harvest is past And here the Action being brought at Michaelmas it sufficiently appears that the Harvest is past And Judgment was given for the â—laintiffe Trin. 21 Iacobi Iatratur Hill 1â— Iacobi Rot. 652. inter Hard Foy in the Kings Bench. 446. KELLAWAY's Case IN an Ejectione Firme brought for the Mannor of Lillington upon a Lease made by Kellaway to Fey It was found by a special Verdict That M. Kellaway seised of the Mannor of Lillington in Fee holden in Soccage did devise the same by his Will in writing in these words viz. For the good will I bear unto the name of the Kellawayes I give all my Lands to John Kellaway in tail the Remainder to my right Heirs so long as they keep the true intent and meaning of this my Will To have to the said John Kellaway and the heirs of his body untill John Kellaway or any of his issues go about to alter and change the intent and meaning of this my Will Then and in such case it shall be lawfull to and for H. Kellaway to enter and have the Land in tail with the like limitation And so the Lands was put in Remainder to five several persons the Remainder to the right heirs of the Devisor M. Kellaway dyed without issue John Kellaway is heir and entred and demised the same to R. K. for 500 years and afterwards granted all his estate to Hard. Afterwards John Kellaway did agree by Deed indented with W. K. to levy a Fine of the Reversion to W. and his heirs H. Kellaway entred according to the words of the Proviso in the Will and made the Lease to Foy who brought an Ejectione Firme against Hard. And whether H. Kellaway might lawfully enter or no was the Question It was objected That in the Case there is not any Forfeiture because the Fine was without proclamations and so it was a Discontinuance only The first Question is If the Remainder doth continue The second is If it be a Perpetuity or a Limitation John Kellaway is Tenant in tail by Devise untill such time as John Kellaway or any of his issues agree or go about to alter or change the estate tail mentioned in the Will with Proviso to make Leases for 21 years 3 lives or to make Jointures Then his Will is That it shall be lawfull for H. K. to enter and to have the Land with the same limitations If it be a Perpetuity then it is for the Plaintiffe but if it be but a Limitation then it is for the Defendant The Fine was levied without proclamations and H. K. entreth for the Forfeiture Damport It is no Perpetuity but a Limitation which is not restrained by the Law as Perpetuities are Untill such time as c. shall discontinue c. The Jury find an Agreement by Indenture The act which is alleadged to be the breach is Conclusivit agreavit not to levy a Fine with proclamations but to levy a Fine without proclamations which is but a Discontinuance Yelverton If the Fine had been with proclamations then without doubt he in the Remainder during the life of him who levied it had been barred The Devise was To have to them and to the heirs of their bodies so long as they and every of their issues do observe perform fulfill and keep the true meaning of this my Will touching the entailed Lands in form following and no otherwise And therfore I M. Kellaway do devise unto John Kellaway the issue of his body the Remainder c. â—o have to the said John Kellaway and the issue of his body untill he or any of his issue shall go about to conclude do or make any act or acts to alien discontinue or change the true meaning of this my Will That then my Will is and I do give and bequeath to H K in tail And that it shall be lawfull for him the said H. K. or his issue to enter immediately upon such assent conclusion or going about to conclude c. And that H. K. and his issue shall leave it untill he or any of them go about c. C. 9 part Sundayes Case 128. where it was resolved That no Condition or Limitation be it by act executed or by limitation of an Use or by a Devise can bar Tenant in tail to alien by a common Recovery v. C. 3. part acc The Case was not resolved but it was adjourned to another day to be argued and then the Court to deliver their opinions in it Trin. 21. Intratur Trin. 20 Jacobi Rot. 811. in the Kings Bench. 447. KNIGHT's Case IN this Case George Crook said That Land could not belong to Land yet in a Will such Land which had been enjoyed with other might pass by the words cum pertinaciis As where A. hath two houses adjoyning viz. the Swan and the Red-Lyon and A. hath the Swan in his own possession and occupieth a Parlour or Hall which belongs in truth to the Red-Lyon with the Swan-house and then leaseth the Red-lyon
certain Farme Lands called Estons and that a Fine was levied of Lands in Eslington Eston and Chilford whereas Eston lay in another Parish appell D. Calthrope argued That the Land in Eston did passe by the Fine although the Parish was not named for that the Writ of Covenant is a personall Action and will lie of Lands in a Hamlet or lieu conus 8. E. 4 6. Vide 4. E. 3. 15. 17. Ass 30. 18. E. 3. 36. 47. E. 3. 6. 19. E. 3. Brev. 767. 2. He said That it was good for that the Plea went only to the Writ in abatement but when a Concord is upon it which admits it good it shall not be avoided afterwards 3. He said That a Fine being a common assurance and made by assent of the parties will passe the Lands well enough 7 E. 4. 25. 38. E. 3. 19. And he vouched Pasch 17. Jacobi in the Kings Bench Rot. 140. Monk and Butlers Case Where it was adjudged that a Fine being but an arbitrary assurance would passe Lands in a Lieu conus and so he said it would do in a common recovery And Richardson said That if a Scire facias be brought to execute such a recovery Nul tiel ville ou Hamlet is no plea and the Fine or recovery stands good Vide 44. E. 3. 21. 21 E. 3. 14 Stone And the opinion of the Court was That the Lands did well passe by the Fine Mich. 8. Caroli in the Kings Bench 509 CAWDRY aud TETLEY's Case CAwdry being a Doctor of Physick the Defendant Praemissorum non ignorans to discredit the plaintiff with his Patients as appeared by the Evidence spake these words to the plaintiffe viz. Thou art a drunken Fool and an Asse Thou wert never a Scholer nor ever able to speak like a Scholer The opinions of Jones and Crook Justices were that the words were actionable because they did discredit him in his Profession and hee hath particular losse when by reason of those words others do not come to him And Palmers Case was vouched Where one said of a Lawyer Thou hast no more Law then a Jackanapes that an Action did lie for the words Contrary if he had said No more Wit And William Waldrons Case was also vouched where one said I am a true Subject thy Master is none that the words were actionable Mich. 4. Caroli in the Kings Bench. 510 The King and BAXTER SIMMON's Case THE Case was this Tenant in tail the Remainder in taile the Remainder in Fee to Tenant in tail in possession Tenant in tail in Remainder by Deed enrolled reciting that he had an estate tail in Remainder Granted his Remainder and all his estate and right unto the King and his Heirs Proviso that if he pay ten shillings at the Receipt of the Exchequer that then the Grant shall be void Tenant in tail in possession suffers a common Recovery and afterwards deviseth the Lands to I. S. and dieth without Issue 18. Jacobi Afterwards 21. Jac. he in the Remainder in tail dieth without issue but no seisure is made nor Offence found that the lands were in the Kings hands Noy who argued for the King The first Point is When Tenant in taile recites his estate and grants all his estate and right to the King and his Heirs what estate the King hath And if by the death of Tenant in tail without issue the estate of the King be so absolutly determined that the Kings possession needs not to be removed by Amoveas manum And he argued That when the Lands are once in the King that they cannot be out of him again but by matter of Record 8. E. 3. 12. Com. 558. And a bare entry upon the King doth not put the King out of possession of that which was once in him And so was it adjudged 34. Eliz. in the Lord Paget's Case as Walter chief Baron said And Noy took this difference 8. H. 5. Traverse 47. and 8. E. 2. Traverse 48. If a particular estate doth determine before that the King seise there the King cannot afterwards seise the Lands But if the King hath once the Lands in his hands or possession there they cannot be devested out of him but by matter of Record So F. Nat. Br. 254. If a man be seised of Lands in the right of his Wife and be outlawed for Felonie for which the Lands come into the Kings hands and afterwards hee who is outlawed dieth there a Writ of Diem clausit extremum shall issue forth which proveth That by the death of the Husband the Lands are not immediately out of the King and setled in the Wife againe 22. E. 4. Fitz. Petition 9. Tenant in taile is attainted of Treason and the Lands seised into the Kings hands and afterwards Tenant in taile dieth without Issue he in the Remainder is put to his Petition which proveth that the Lands are not presently after the death of Tenant in taile without issue out of the King But he agreed the Cases If Tenant in taile acknowledgeth a Statute or granteth a Rent charge and dieth that the Rent is gone and determined by his death as it is agreed in 14. Assisarum The second point argued by Noy was That although that there was not any seizure or Offence found which entituled the King Yet the Deed enrolled in the Chancery which is returned in this Court did make sufficient title for the King as 8. E. 3. p. 3. is The Judges of Courts ought to Judge upon the Records of the same Courts In 8. H. 7. 11. a Bayliff shewed That a Lease was made to T. his Master for life the Remainder to the King in Fee and prayed in Ayd of the King And the Plaintiff in Chancery prayed a Procedendo And it was ruled That a Procedendo should not be granted without examination of the Kings title Thirdly he said That in this case he who will have the Lands out of the possession of the King ought to shew forth his title and in the principall case it doth not appear that the Defendant had any title Vide 10. H. 7. 13. Athowe Serjeant argued for the Defendant he said That in this case the King had an estate but for the life of Tenant in tail And therefore he said That If Tenant in tail grant totum statum suum that an estate but for his own life passeth as Litt. is 145. and 13. H. 7. 10. acc So If Tenant for life the remainder in taile bee and he in the Remainder releaseth to Tenant for life in possession nothing passeth but for the life of Tenant in tail 19. H. 6. 60. If Tenant in tail be attainted of Treason or Felonie and Offence is found and the King seiseth the lands he hath an estate but for the life of Tenant in tail And he cited 35. Eliz. C. 2 part 52. Blithmans case Where Tenant in tail Covenanted to stand seized to the use of himself for his own life and after his death to the use
of his eldest son in tail and afterwards he married a wife and died that the wife should not be endowed for when he had limited the use to himself for his life he could not limit arâ— Remainder over And Edwards Case adjudged in the Court of Wards which was That there was Tenant for life the Remainder in tail he in the Remainder granted his Remainder to I. S. and his heirs and afterwards Tenant for life dyed and then the grantee dyed his heirs within age it was adjudged that the heir of the garntee should not be in ward because the Tenant in tail could not by his Grant grant a greater estate then for his own life But he said That in the principall Case it appeareth That the Tenant in tail in Remainder hath particularly recited his estate And where it appeareth in the Conveyance it self that he hath but an estate in tail a greater estate shall not passe As if Tenant for life granteth a Rent to one and his heirs the same at the first sight seems to be a good Rent in Fee but when it appeareth in the Conveyance that the grantor was but Tenant for life there upon the Construction of the Deed it self it cannot be intended that he granted a Fee but that an estate for life passed only in the Rent Secondly he argued That although the estate in tail in the principall case was an abeyance Yet a Common Recovery would barr such estate tail in abeyance And therewith agreeth C. 2. part Sr Hugh Cholmleys Case 3. He said That the estate was out of the King and vested in the party without any Offence found as 49. E. 3. Isabell Goodcheaps case A man devised houses in London holden of the King in tail and if the Donee dyed without Issue that the Lands should be sold by his Executors The devisee died without Issue The bargain and sale of the Lands by the Executor doth divert the estate out of the King without Petition or Monstrans de Droit So If there be Tenant in tail the Remainder in tail and Tenant in tail â—n Remainder levieth a fine of his Remainder to the King and afterwards dyeth without Issue the Kings estate is determined and there needs no Petition or Monstrans de Droit 4. He said That in the principall case nothing was in the King because it doth not appeare that there was any seisure or Offence found to entitle the King And the Tenant in tail in the Remainder died in the life of King James and then if the Kings estate were then determined as before by the death of the Tenant in taile the King which now is never had any title And hee said that he needed not to shew a greater title then he had And hee took a difference when Tenant in taile doth onely defend or make defence and when he makes title to Lands in the one Case he ought for to shew That the Tenant in taile died without issue and in the other Case not And therefore in the principall case he demanded Judgment for the Defendant The Case was adjourned to another day Mich. 4. Caroli in the Star-Chamber 511 TAILOR and TOWLIN's Case A Bill was preferred against the Defendant for a Conspiracy to Indict the plaintiff of a Rape And the Plaintiff aleadged in his Bill That an Indictment was preferred by the Defendant against the Plaintiff before the Justices of Assise and Nisi prius in the County of Suffolk And did not lay it in his Bill that the Indictment was preferred before the Justices of Oyer and Terminer and Gaole delivery and the same was holden by the Court to be a good Exception to the Bill for that the Justices of Assise and Nisi prius have not power to take Indictments But afterwards upon veiw of the Bill because the Conspiracy was the principall thing tryable and examinable in this Court and that was well layd in the Bill the Bill was retayned and the Court proceded to Sentence And in this Case Richardson Justice said That in Conspiracy the matter must bee layed to be falsè et malitiosè and if it be layed for a Rape It must be layd that there was recens persecutio of it otherwise it will argue a Consent And therefore because the Defendant did not preferre an Indictment of Rape in convenient time after the Rape supposed to be done but concealed the same for half a years time and then would have preferred a Bill of Indictment against the plaintiff for the same Rape he held that the Indictment was false and malitious And Hyde Chief Justice said That upon probable proof a man might accuse another before any Justice of Peace of an Offence and although his accusation be false yet the Accuser shall not be punished for it But where the Accusation is malitious and false it is otherwise and for such Accusation he shall be punished in this Court Trinit 8. Caroli in the King Bench. 513 JONES and BALLARD's Case AN Action upon the Case was brought for these words viz These Jones are proper Witnesses they will sweare any thing They care not what they say They have already forsworn themselves in the Chancery and the Lord keeper Committed them for it Jermyn took Exceptions because it was not said to be in the Court of Chancery nor that it was in any Deposition there taken upon Oath But it was adjudged per Curiam That the Action would lie and Jones Justice said that the Addition in the Chauncery was as much as if he had said he was perjured there And Hâ—msies case was vouâ—hed by him Where one said of a Witness presently after a Tryall at the Guild Hall in London You have now forsworn your self That it was adjudged that the words were actionable Trinit 8. Caroli in the Kings Bench. 513. SYMME's and SMITH's Case A Woman being entituled to copyhold Lands of the Manor of D did covenant upon reasonable request to be made unto her to surrender the Copy-hold Land according to the Custome of the Manor And it was found That the Custome of the Manor is That a surrender may be made either in person or by Letter of Atturney and that the plaintiff did request the woman to make the surrender by a Letter of Atturney which shee refused to do And whether shee ought to surrender presently or might first advise with her Councell was the Question It was argued for the plaintiff that shee ought to do it presently And Munser's Case C. 2. part and 16. Eliz. Dyer 337. Sir Anthonie Cooks Case were vouched that she was to do it at her perill And the Election in this Case was given to the Covenantee and hee might require it to be done either in Court in person or by Letter of Atturney And C. 2. part Sir Rowland Heywards Case and C. 5. part Hallings Case was vouched to that purpose Rolls contrary for the Defendant And he said That the woman was to have convenient time to do it and
not have an Action without cause and if he were convicted then there is no cause of Action and he hath not shewed whether he was convicted or acquitted And he said that there was no difference betwixt an Action on the Case and a Conspiracie in such case but onely this That a Conspiracy ought to be by two at the least and an Action upon the Case may lie against one and he said that in both he ought to shew that he was legitimo modo acquietatus See 11. H. 7. 25. An Action of Conspiracy founded upon the Statute of 8. H 6. Cap. 10. where it is grounded upon a Writ of Trespasse brought against one onely But such a Conspiracy which is grounded upon an Indictment of Felony must be against two at the least for the same is an Action founded upon the Common Law Mich. 28 29. Eliz. In the Kings Bench. 92. BONEFANT against Sir RIC. GREINFIELD BOnefant brought an Action of Trespasse against Sir Richard Greinfield The Case was this A man made his Will and made A. E. I. O. his Executors and devised his Lands to A. E. I. and O. by their speciall names and to their heirs and further willed that his Devisees should sell the Land to I. D. if he would give for the same before such a day an hundred pound and if not that then they should sell to any other to the performance of his Will scil the payment of his debts I. D. would not give the hundred pound One of the Devisees refused to entermeddle and the other three sold the Land and if the Sale were good or not was the question Cooke The Sale is not good 1. Let us see what the Common Law is At the Common Law it is a plain case that the Sale is not good because it is a speciall trust and a joynt trust and shall never survive for perhaps the Devisor who is dead reposed more confidence in him who refused then in the others Vide 2 Eliz. the Case of the Lord Bray who covenanted That if his son marry with the consent of four whom he especially named viz. A. B. C. and D. that then he would stand seised to the use of his son and his wife and to the heirs of their two bodies begotten One of the four was attainted and executed The other did consent that he should marry such a one he married her yet no estate passed because the fourth did not consent and it was a joynt trust 38. H. 8. Br. Devises 31. A man willeth that his Lands deviseable shall be sold by his Executors and makes four Executors all of them ought to sell for the trust which is put upon them is a joynt Trust But Brook conceiveth that if one of them dieth that the others may sell the Lands The Case betwixt Vincent and Lee was this A man devised That if such a one dieth without issue of his body that then his Sons in law should sell such Lands and there were five sons in law when the Testatour died and when the other man died without issue there were but three sons in law and they sold the Lands and it was holden that the Sale was good because the Land was not presently to be sold Also he said that in the principall Case here they have an Interest in the Lands and each of them hath a part therefore the one cannot sell without the other But if the devise were that four should sell they have not an Interest but onely an Authority As to the Statute of 21. H. 8. Cap. 4. he said that that left our Case to the Common Law For that Statute as it appeareth by the preamble speaks onely of such Devises by which the Land is devised to be sold by the Executors and not devised to the Executors to sell And goes further and saith Any such Testament c. of any such person c. therefore it is meant of such a devise made unto the Executors and then no Interest passeth but onely an Authority or a bare Trust But in our Case they have an Interest for he who refused had a fourth part Then when the other sell the whole the same is a disseisin to him of his part If a Feoffment be made to four upon condition that they make a Feoffment over and two of them make the Feoffment it is not good Also the words of the Will prove that they have an Interest for it is that his Devisees shall sell c. Laiton contrary And he said That although the Devise be to them by their proper names and not by the name Executors yet the intent appeareth that they were to sell as Executors because it was to the performance of his last Will and that may be performed as well by the three although that the other doth refuse and the Sale of the Land doth referre to the performance of his Will in which there are divers Debts and Legacies appointed to be paid 2. H. 4. and 3. H. 6. A man devised his Lands to be sold for the payment of his debts and doth not name who shall sell the same the Lands shall be sold by his Executors 39. Ass A Devise is of Lands unto Executors to sell for the performance of his Will the profits of the Lands before the Sale shall be assets in the Executors hands 15. H. 7. 12. is That if a man devise that his Lands shall be sold they shall be sold by his Executors Also if I devise that my Executors shall sell my Lands and they sell it is an Administration and afterwards they cannot plead that they never were Executors nor never administred as Executors And although there are divers Authorities to be executed yet it is but one Trust 39. Ass 17. is our very Case A man seised of Lands deviseable devised them to his Executors to sell and died having two Executors and one of them died and the other entred and sold the Land and the Sale was good 49. E. 3. 15. Isabell Goodcheapes Case Where a man devised that after an Estate in taile determined that his Executors should sell the Lands and made three Executors and one died and another refused the third after the taile determined sold the Land and the Sale was holden good and that it should not escheate to the Lord for the Land was bound with a Devise as with a Condition as to the Statute of 21. H. 8. Cap. 4. the preamble of the Statute is as it hath been recited and although for exmaple the Lands in use are only put yet the Statute is not tied only to that As in the Statute of Collusion of Malbridge Examples are put only of Feoffments and Leases for years yet there is no doubt but that a Lease for life or a gift in taile to defraud the Lord is within the Statute So the Statute of Donis Conditionalibus puts onely three manner of estate tailes But Littleton saith That there are many other estate tailes which are
did admit a Copy-holder in Remainder for life That the same was a good admittance according to the Custome And that he was a sufficient Dominus pro tempore as to this purpose Although it was objected by Walmesley That the Gardian is but Servus and not Dominus But because it was agreed that he had a lawfull Interest the admittance was good and so it was adjudged 33. Eliz. In the Common Pleas. 178 SHIPWITH and SHEFFIELD'S Case THe Custome of a Copy-hold Manor was That a feme Covert might give Lands to her Husband And if it were a good Custome or not was the Question Fleetwood The Custom is good and vouched 12. E 3. That in York there is such a custome That the Husband might give the Land of his own purchase to his wife during the Coverture and it is a good Custome That an Infant at the age of fifteen years may make a Feoffment 29. E. 3. and the same is good at the Common Law and yet the same all began by custome But the Court was of opinion That the Custome is unreasonable because it cannot have a lawfull Commencement And Anderson Chiefe Justice said That a Custome that an Infant at the age of seven years might make a Feoffment is no good custome because he is not of age of discretion And in this case at Barre It shall be intended that the wife being sub potestate viri did it by the Coherison of her Husband The same Law is of a Custome That the wife may lease to her Husband Fleetwood urged That the custome might be good because the wife was to be examined by the Steward of the Court as the manner is upon a Fine to be examined by a Judge To which the Court said nothing 31. Eliz. in the King's Bench 179 AN Action upon the Case upon an Assumpsit was brought And the Plaintiff layed his Action That such a one did promise him in respect of his labour in another Realme c. to pay him his contentment And he said That Twenty five Pound is his contentment and that he had required the same of the Defendant Cook moved in arrest of Judgement it being found for the Plaintiffe upon Non Assumpsit pleaded that no place was alledged where the contentment was shewed And the opinion of the Court was against him for Gawdy and Wray were of opinion that he might shew his contentment in any Action and so it is where it is to have so much as he can prove he might prove it in the same Action Cook said That it had been moved in stay of Judgement in this Court upon an Assumpsit because the request was not certain And that case was agreed by the Justices because the request is parcell of the Assumpsit and the entire Assumpsit together in such case is the cause of the Action but in this case that he should content him is not the cause of the Assumpsit but only a circumstance of the matter and it was resembled to the Case of 39. H. 6. where a Writ of Annuity was brought for Arrerages against an Abbot pro consilio c. And the Plaintiffe declared that the Councel was ad proficuum Domus and was not alledged in certain and it was holden that the same was not materiall although it were uncertain because it was but an induction and necessary circumstance to the Action And so the Plaintiffe recovered and had Judgement Mich. 29 Eliz. in the King 's Bench. 180 THE Statute of 23. Eliz. cap. 25. is Quod non licuit alicui to engrosse Barley c. and in the Statute there is a Proviso That he may so do so as he convert it into Malt. The question was If in an Information upon that Statute That the Defendant had converted it to Malt he might plead the generall Issue Not guilty and give in Evidence the speciall matter or whether he ought to plead the speciall matter Clench Justice He may plead Not guilty c. for the Proviso is parcel and within the body of the Statute as 27. H. 8. 2. where upon an Information upon the Statute of Farmors it is holden by Fitzherbert That the Vicar may plead Non habuit seu tenuit ad firmam contra formam Statuti c. and yet the Statute in the premises of it restrains every Spirituall Person to take in Farme any Lands c. and afterwards by a Proviso gives him liberty to take Lands for the maintenance of his house c. As upon the Statute of R. 2. If he do plead That he did not enter contra formam Statuti he may give in Evidence that he entred by Title as that his father was seised and died and the same is not like unto the condition of a Bond for that is a severall thing But the Proviso and the Statute is but one Act. Mich. 29. Eliz. in the King 's Bench. 181 NOte It was said by Master Kemp Secondary of the King's Bench That there is a Court within the Tower of London but he said That it was but a Court Baron and said That he can shew a Judgement That no Writ of Error lieth of a Judgement given there And it was a question Whether Process might be awarded to the Lieutenant of the Tower for Execution upon a Judgment given in the Kings Bench because the Defendant was removed and dwelt within the Liberty of the Tower And it was said It could not but the Writ ought to be awarded to the Sheriffs of London and if they returne the Liberties of the Tower then a Non omittas shall be awarded But some Counsellors said That although a Non omittas be awarded yet the Sheriffs durst not go unto the Liberties of the Tower to serve the Process 2 Jacobi in the Common Pleas. 182 The Lady STOWELL'S Case IT was adjudged in this Case That the wife who is divorced causa adulterii shall have her Dower 3. Jacobi in the Common Pleas. 183 WARNER'S Cafe LEssee for twenty years doth surrender rendring rent during the term It was adjudged a good rent for so many years as the term might have continued 3. Jacobi in the King 's Bench. 184 WHITLOCK and HARTWELL'S Case TWO Joint-Tenants for life the one demised and granted the moyty unto his companion for certain years to begin after his death Adjudged void because it is but a possibility And so is it of a Covenant to stand seised to the use c. as it was adjudged in Barton and Harvey's Case 37. Eliz. 3. Jacobi In the Kings Bench. 185 PINDER'S Case A. devised lands in Fee to his son and many other lands in tail And afterwards he said I will that if my son die without issue within age that the lands in Fee shall go to such a one Item I will that the other lands in tail shall go to others and doth not say in the second Item if the son dieth without issue within age It was adjudged That the second Item should be without
the case which implyed their opinions to be for the Universitie And 21. H. 7. was vouched That the Patronage was only matter of favour and was not a thing valuable And in this case Cook chief Justice said That Apertus haereticus melius est quam fictus Catholicus Mich. 11. Jacobi in the Common Pleas. 310 BOND and GREEN's Case AN Action of Debt was brought against an Administrator the Defendant shewed how that there were divers Judgments had against him in 〈◊〉 Aâ—d â—â—so that there was another Debt due by the Testator which was assigned over unto the Kings Majesty and so pleaded That he had fully Administred Barker Serjeant took Exception to the pleading because it was not therein shewed that the King did assent to the Assignment and also because it was not shewed that the Assignment was enrolled The Court said nothing to the Exceptions But whereas he Defendant as Administrator did alledge a Retayner in his own hands for a debt due to himselfe The opinion of the whole Court was that the same was good and that an Administrator might retayne to satisfie a debt due to himselfe But it was agreed by the Court That an Excecutor of his own wrong should not Retayne to satisfie his own debt See to this purpose C. 5. part Coulters Case Mich. 11. Jacobi in the Common Pleas. 311 STROWBRIDG and ARCHERS Case IN An Action of debt upon a Bond the Defendant was Outlawed And the Writ of Exigent was viz. Ita quod habeas corpus ejus hîc c. whereas it ought to be coram Justiciariis nostris apud Westminster And for that defect the utlagary was reversed and it was said that it was as much as if no Exigent had been awarded at all And upon the Reversall of the utlagary a Supersedeas was awarded and the party restored to his goods which were taken in Execution upon the Capias utlagatum It was also resolved in this Case That if the Sheriffe upon a Writ of Execution served doth deliver the mony or goods which are taken in Execution to the Plaintiffs Atturney it is as well as if he had delivered the same to the Plaintiff himself for the Receipt by his Atturney is in Law his own Receipt But if the Sheriff taketh goods in Execution if he keep them and do not deliver them to the paâ—â— at whose suit they are taken in Execution the party may have a new Execution as it was in the principal Case because the other was not an Execution with Satisfaction Mich. 11. Jacobi in the Common Pleas. 312 CHAVVNER and BOVVES Case BOwes sold three Licences to sell Wine unto Chawner who Covenanted to give him ten pounds for them and Bowes Covenanted that the other should enjoy the Licences It was moved in this Case whether the one might have an Action of Covenant against the other in such Case And the opinion of Warburton and Nichols Justices was That if a Man Covenant to pay ten pound at a day certain That an action of Debt lyeth for the money and not an action of Covenant Barker Serjeant said he might have the one or the other But in the principall Case the said Justices delivered no opinion 313 Note That this Day Cooke Chief Justice of the Common Pleas was removed to the Kings Bench and made Lord Chief Justice of England And Sir Henry Hobart who was the Kings Aturney generall was the day following made Lord Chief Justice of the Court of Common Pleas. Sir Francis Bakon Knight who before was the Kings Solicitor was made Atturney Generall And Mr Henry Yelverton of Grays-Inn was made the Kings Solicitor and this was in October Term. Mich. 11 Jacobi 1613. Mich. 11. Jacobi In the Common Pleas. 314 THis Case was put by Mountague the Kings Serjeant unto the Lord Chief Justice Hobart when he took his place of Lord Chief Justice in the Common Pleas viz. Tenant in tail the Remainder in taile the Remainder in Fee Tenant in tail is attainted of Treason Offence is found The King by his Letters Patents granteth the lands to A who bargaineth and selleth the land by Deed unto B. B. suffers a common Recovery in which the Tenant in tail is vouched and afterwards thâ— Deed is enrolled And the question was Whether it was a good Bar of the Remainder And the Lord Chief Justice Hobart was of opinion That it was no barre of the Remainder because before enrollment nothing passed but only by way of conclusion And the Bargainee was no Lawfull Tenant to the Precipe Mich. 11. Jacobi in the Common Pleas. 315 WHEELER's Case IT was moved for a Prohibition upon the Statute of 5. E. 6. for working upon Holy days and the Case was That a man was presented in the spirituall Court for working viz. carriage of Hay upon the feast day of Saint John the Baptist when the Minister preached and read divine service and it was holden by the whole Court of Common Pleas That the same was out of the Statute by the words of the Act it self because it was for necessity And the Book of 19 H. 6. was vouched That the Church hath authority to appoint Holy days and therefore if such days be broken in not keeping of them Holy that the Church may punish the breakers therof But yet the Court said That this day viz. the Feast day of Sr John the Baptist was a Holy day by Act of Parliament and therefore it doth belong unto the Judges of the Law whether the same be broken by doing of such work upon that day or not And a Prohibition was awarded Mich. 11 Jacobi in the Common Pleas. 316 REARSBY and CUFFER's Case IT was moved for a Prohibition to the Court of Requests because that a man sued there by English Bill for money which he had layd out for an Enfant within age for his Meat drink necessary apparel and set forth by his Bill that the Enfant being within age did promise him to pay the same And a Prohibition was awarded because as it was said he might have an action of Debt at the common Law upon the contract for the same because they were things for his necessary livelihood and maintenance And it was agreed by the Court That if an Infant be bounden in an Obligation for things necessary within age the same is not good but voidable Quaere for a difference is commonly taken When the Assumpsit is made within age and when he comes to full age For if he make a promise when he cometh of full age or enters into an Obligation for necessaries which he had when he was within age the Law is now taken to be that the same shall binde him But see 44. Eliz. Randals Case adjudged That an Obligation with a penaltie for money borrowed within age is absolutely void Mich. 11. Jacobi in the Common Pleas. 317 SMITH's Case SMith one of the Officers of the Court of Admiralty was committed by the Court of Common Pleas to the prison of
duty did survive with the wife or were extinguished by the entermarriage was the Question And Hâ—bart Chief Justice and Warburton were against Winch and Hutton Justices That the marriage was a Release or discharge of the 100â— Quaere Hill 15 Jacobi in the Kings Bench 380. PLOT' 's Case AN Enâ—ant brought an Assise in the Kings Bench for Lands in Mich depending which The Tenant in the same Assise brought an Assise for the same Lands in the Common-Pleas which last Writ bore date and was recornable after the first Writ And the Demandant in the second Writ did recover against the Enfant by default by the Aâ—â—â—se who found the Seisin and Disseisin And upon a Plea in 〈◊〉 of the first Assise of that Recovery the Enfant by way of Replication set forth all the special matter And that the Deâ—andant at the time of the second Writ brought was Tenant of the Land And prayed that he might 〈◊〉 the Recovery And it was adjudged That he might falsifie the Recovery For in all Cases where a man shall not have Error noâ—â—â—taint he may Falsifie But in this case he could not have Error nor Attaint because the Judgment in the Common-Pleas was not given only upon the Default but also upon the Verdict And it should be in vain for him to bring an Attaint because he shall not be 〈◊〉 to give other Evidence then what was given at the first Trial. Also he shall falsifie the Recovery because it was a practise to defeat and take away the Right of the Enfant and to leave him without any remedy whatsoever Pasch 16 Iacobi in the Kings Bench. 381 INGIN and PAYN'S Case LEssee for years was bounden in a Bond to deliver the possession of a house unto the Lessor his heirs and assignes upon demand at the end of the term The Lessor did bargain and sell the Rendition by Deed enrolled to two One of the Bargainees at the end of the term demanded the Delivery of the Possession The Lessee refused pretending that he had no notice of the bargain and sale It was adjudged that the Bond was forfeited Pasch 16 Iacobi in the Common-Pleas 382. JERMYN and COOPER'S Case A Man by Deed gave Lands to A. and to a Feme sole and to their heirs and assigns for ever Habendum to them and to the heirs of their bodies the Remainder to them and the survivor of them for ever And it was adjudged by the Court That they had an Estate in tail with the Fee-simple Expectant Pasch 16 Jacobi in the Kings Bench. 383. A Man was Indicted De verberationem vulnerationem of J. S. and the words vi armis were left out of the Indictment And the same was adjudged to be helped by the Statute and that the Indictment was good Mich. 16 Jacobi in the Kings Bench. 384. BARNWEL and PELSIE'S Case A Parson did Covenant and grant by Deed with one of his Parishioners That in consideration of Six pounds thirteen shillings and four pence per annum be paid unto him that the said Parishioner should be discharged of all Tythes upon condition to be voyd upon default of payment Afterwards the Parson against his grant did sue the Parishioner in the Spirituall Court for Tythes in kind and it was moved for a Prohibition But the Court would not grant it because that the Originall viz. the Tythes do belong to spirituall jurisdiction But it was said that the Parishioner might have an Action of Covenant against the Parson upon the Deed in the Temporall Court 385. Posch 16 Jacobi in the Kings Bench. AN Action upon the Case was brought for speaking of these words viz. J. S. 34 years since had two Bastards and hath paid for the nursing of them And the Plaintiff shewed that by reason of these words contention grew betwixt him and his wife almost to a Divorce And it was adjudged That an Action would not lye for the words And the Chief Justice said That an Action upon the Case doth not lye for every ill word but for words by speaking of which the Plaintiff is damnified and that cannot be in this Case the time being so long past And the causes wherefore a man shall be punished for saying that a man hath a Bastard are twoâ— the one because by the Statute of 14 Eliz. the offender is to be punished for the same And secondly because the party by such means is discredited or hindered in his preferment Hill 16 Iacobi in the Kings Bench. 386 HURLSTON and WODROFS Case HEnry Hurlston was Plaintiff against Robert Wodroffe in an Action of Debt upon a Demise of a Messuage with a Sheep-walk the Latin word being Ovile And it was moved in arrest of Judgement after a verdict found for the Plaintiff That the sheepwalk was not alledged to be appurtenant nor pleaded to be by Grant by Deed. But notwithstanding that it vvas ruled by the vvhole Court because it rested indifferent whether there was a grant by Deed or not That when the Jury find that the Sheep-walk did passe it shall be intended that there was a Deed. Dodderidge Justice in the Argument of this Case did hold That by the word Ovile although it be translated in English a Sheep-walk yet a Sheep-walk did not passe by it but a Sheep-Cote and by that the Land it self did passe Hill 16 Iacobi in the Kings Bench. 387. HILL and WADE'S Case HIll brought an Action upon the Case against Wade and declared upon an Assumpsit to pay mony upon request and did not alleadge the Request certain but issue was joyned upon another point and found for the Plaintiffe That the failing of certain alleadging of the Request in the Declaration made the same insufficient And so it was adjudged by the Court with this difference where it was a duty in the Plaintiffe before and where the Request makes it a duty For in the first case the Plaintiffe need not alleadge the Request precisely but otherwise in the later Dodderidge Justice put this Case If I promise J. S. in consideration that he will marry my daughter to give him 20â— upon request there the day and place of the request ought to be alleadged in the Declaration Montagu Chief Justice cited 18 E. 4. and 5 H. 7. to be contrary viz. That the finding of the Jury made the Declaration which was vitious to be good As if Executors plead That they have nothing in their hands the day of the Action brought it is insufficient But if the Jury find Assets it is good and so by consequence the Verdict shall supply the defect of Pleading But the Court held these books to be good Law and not to be contrary and well reconciled with this difference For there the Plea was naught only in matter of circumstance but otherwise it is where it is vitious in substance as in this case it is And a difference also was taken where the Verdict doth perfect all which is material and ought to be expressed
it is not known whether he be guilty or not and in Cuddingtons Case it was a general Pardon and that was the cause that the Action did lie for that it is not known whether he committed the Felony or not But they conceived that if it had been a particular Pardon that then in that case the Action would not have been maintainable For the procuring of a special Pardon doth presuppose and it is a strong presumption that the party is guilty of the offence Note it did not appear in the Case of Fines the principal Case whether the Pardon by which Dr. Spicer was pardoned were a general Pardon or whether it were a particular and special Pardon Pasch 21 Iacobi in the Kings Bench. 415. DAVER's Case IN Davers Case who was arraigned for the death of William Dutton Ley Chief Justice delivered it for Law That if two men voluntarily fight together and the one killeth the other if it be upon a sudden quarrel that the same is but Man-slaughter And if two men fight together and the one flieth as far as he can and he which flieth killeth him who doth pursue him the same is Se defendendo Also if one man assaulteth another upon the High-way and he who is assaulted killeth the other he shall forfeit neither life nor lands nor goods if he that killed the other fled so far as he could Quod nota Pasch 21 Jacobi â—n the Court of Wards 416. Sir EDWARD COKE's Case THis Case being of great consequence and concernment The Master of the Court of Wards was assisted by four of the Judges in the hearing and debating of it and after many Arguments at the Barr the said four Judges argued the same in Court viz. Dodderidge one of the Justices of the Kings Bench Tanfield Lord chief Baron of the Exchequer Hobart Lord Chief Justice of the Court of Common Pleas and Ley Lord Chief Justice of his Majesties Court of Kings Bench The Case in effect was this Queen Elizabeth by her Letters Patents did grant to Sir Christopher Hatton the Office of Remembrancer and Collector of the first Fruits for his life Habendum to him after the death or surrender of one Godfrey who held the said Office then in possession Sir Christopher Hatton being thus estated in the said Office in Reversion and being seised in Fee-simple of diverse Mannors Lands and Tenements did Covenant to stand seised of his said lands c. unto the use of himself for life and afterwards to the use of J. Hatton his son in tail and so to his other sons intail with the Remainder to the right heirs of J. Hatton in Fee with Proviso of Revocation at his pleasure during his life Godfrey the Officer in possession died and Sir Christopher Hatton became Officer and was possessed of the Office and afterwards he became indebted to the Queen by reason of his said Office And the Question in this great Case was Whether the Mannors and Lands which were so conveyed and setled by Sir Christopher Hatton might be extended for the said Debt due to the Queen by reason of the Proviso and Revocation in the said Conveyance of Assurance of the said Mannors and Lands the debt due to the Queen was assign'd over and the Lands extended and the Extent came to Sir Edward Coke and the heir of John Hatton sued in the Court of Wards to make void the Extent And it was agreed by the said four Justices and so it was afterwards decreed by Cranfield Master of the Court of Wards and the whole Court That the said Mannors and Lands were liable to the said Extent And Dodderidge Justice who argued first said that the Kings Majestie had sundry prerogatives for the Recovery of Debts and other Duties owing unto him First he had this prerogative ab origine legis That he might have the Lands the Goods and the Body of the Person his Debtor in Execution for his Debt But at the Common Law a common person a common person could not have taken the body of his debtor in execution for his debt but the same priviledg was given unto him by the Statute of 25. E. 3. cap. 17. At the Common Law he said that a common person Debtee might have had a Levari facias for the Recovery of his Debt by which Writ the Sheriffe was commanded Quod de terris Catallis ipsius the Debtor c. Levari faciat c. but in such Case the Debtee did not meddle with the Land but the Sheriffe did collect the Debt and pay the same over to the Debtor But by the Statute of West 2. cap 20. The Debtee might have an Elegit and so have the moyetie of the Lands of his Debtor in Execution for his Debt as it appeareth in C. 3. part 12. in Sir William Harberts Case Secondly He said That the King had another prerogative and that was to have his Debt paid before the Debt of any Subject as it appeareth 41. E. 3. Execution 38. and Pasc 3. Elizabeth Dyer 197. in the Lord Dacres and Lassels Case and in M. 3. E. 6. Dyer 67 Stringfellows Case For there the Sheriffe was amerced because the King ought to have his Debt first paid and ought to be preferred before a Subject vid. 328 Dyer There the words of the Writ of Priviledg shew that the King is to be preferred before other Creditors By the Statute of 33. H. 8. cap. 39. The Execution of the Subject shall be first served if his Judgment be before any Processe be awarded for the Kings debt In the Statute of 25. E. 3. Cap. 19. I find that by the Common Law the King might grant a Protection to his Debtor that no other might sue him before that the King was satisfied his debt See the Writ of Protection Register â— 81. B. the words of which are Et quia nolumus solutionem debitorum nostrorum caeteris omnibus prout ratione Perogativae nostrae totis temporibus retroactis usitatae c. But that grew such a Grievance to the Subject that the Statute of 25. E. 3. Cap. 19. was made And now by that Statute a common person may lawfully sue to Judgment but he cannot proceed to Execution and so the Kings Prerogative is saved unless the Plaintiffe who sueth will give security to pay first the Kings Debt For otherwise if the Paty doth take forth Execution upon his Judgment and doth levy the money the same money may be seized upon to satisfie the Kings Debt as appeareth in 45. E. 3. title Decies tantum 13. The third Prerogative which the King hath is That the King shall have the Debt of the Debtor to the Kings Debtor paid unto him v. 21 H. 7. 12. The Abbot of Ramseys Case The Prior of Ramsey was indebted to the King and another Prior was indebted to the Prior of Ramsey and then it was pleaded in Barr that he had paid the same Debt to the King and the Plea holden for a good Plea
thing and shall he be bound by a Conveyance Anno. 16. H. 6. then in the time of Civil War Uses began and of Lands in use the Lord Chief Baron Tanfield in his Argument hath cited diverse cases where the lands in use were subject and lyable to the debt of Cestuy que use in the Kings Case and so was it untill the Statute of 27. H. 8. of Uses was made Babbington an Officer in the Exchequer had lands in the hands of Feoffees upon Trust and a Writ issued out and the lands were extended for the Debt of Babbington in the hands of his Feoffees Sir Robert Dudley having lands in other mens hands upon Trusts the lands were seized into the Kings hands for a contempt and not for debt or damages to the King And in this Case although that the â—nquisition do find the Conveyance but have not found it to be with power of Revocation yet the Land being extended it is well extended untill the contrary doth appear and untill the extent be avoided by matter of Record viz. by Plea as the Lord Chief Baron hath said before Ley Chief Justice of the Kings Bench argued the same day and his Argument in effect did agree with the other Justices in all things and therefore I have forborne to report the same at length And it was adjudged That the Extent was good and the Land well decreed accordingly Pasch 21 Jacobi in the Exchequer Chamber 417. The Lord SHEFFIELD and RATCLIFF'S Case IN a Writ of Error brought to reverse a Judgment given in a Monstrans de Droit in the Court of Pleas The Case was put by Glanvile who argued for Ratcliffe the Defendant to be this 2 E. 2. Malew being seised of the Mannor of Mulgrave in Fee gave the same to A. Bigot in tail which by divers discents came to Sir Ralph Bigot in tail Who 10 Jannarii 6 H. 8. made a Feoffment unto the use of â—is last Will and thereby after his Debts paid declared the use unto his right heirs in Fee and 9. H. 8. dyed The Will was performed Francis Bigot entred being Tenant in tail and 21 H. 8. made a Feoffment unto the use of himself and Katherine his wife and to the use of the heirs of their two bodies Then came the Statute of 26 H. 8. cap. 13. by which Tenant in tail for Treason is to forfeit the Land which he hath in tail Then the Statute of 27 H. 8. of Uses is made Then 28 H. 8. Francis Bigot did commit Treason And 29 H. 8. he was attainted and executed for the same Anno 31 H. 8. a private Act of Parliament was made which did confirm the Attaindor of Francis Bigot and that he should forfeit unto the King word for word as the Statute of 26 H. 8. is saving to all strangers except the Offendor and his heirs c. 3 E. 6. The heir of Francis Bigot is restored in blood Katherine entred into the Mannor and dyed seised 8 Eliz. their Issue entred and married with Francis Ratcliffe and had Issue Roger Ratcliffe who is heri in tail unto Ralph Bigot And they continue possession untill 33. Eliz. And then all is found by Office and the Land seised upon for the Queen who granted the same unto the Lord Sheffield Francis Bigot and Dorothy die And Roger Ratcliffe sued a Monstrans de Droit to remove the Kings hands from off the lands and a Scire facias issued forth against the Lord Sheffield as one of the Terre-Tenants who pleaded all this special matter and Judgment was thereupon given in the Court of Pleas for Roger Ratcliffe And then the Lord Sheffield brought a Writ of Error in the Exchequer-Chamber to reverse the said Judgment And Finch Serjeant argued for the Lord Sheffield that the Judgment ought to be reversed And now this Term Glanvile argued for Roger Ratcliffe that the Judgment given in the Court of Pleas ought to be affirmed There are two points The first If there were a Right remaining in Francis Bigot and if the same were given unto the King by the Attaindor and the Statute of 31 H. 8. Second If a Monstrans de Droit be a proper Action upon this matter which depends upon a Remitter for if it be a Remitter then is the Action a proper Action The Feoffment by Ralph Bigot 6 H. 8. was a Discontinuance and he had a new use in himself to the use of his Will and then to the use of his Heirs Then 9 H. 8. Ralph Bigot dyed And then Francis Bigot had a right to bring a Formedon in the Discendor to recover his estate tail 21 H 8. then the point ariseth Francis Bigot having a right of Formedon and an use by force of the Statute of 1 R. 3. cap. 1. before the Statute of 27 H. 8. by the Feoffment he had so setled it that he could not commit a forfeiture of the estate tail When a man maketh a Feoffment every Right Action c. is given away in the Livery and Seisin because every one who giveth Livery giveth all Circumstances which belongs to it For a Livery is of that force that it excludes the Feoffor not only of all present Rights but of all future Rights and Tytles v. C. 1. par 111. and there good Cases put to this purpose 9 H. 7. 1. By Livery the Husband who was in hope to be Tenant by Courtesie is as if he were never sised 39 H. 6. 43. The Son disseiseth his Father and makes a Feoffment of the lands the Father dyeth the hope of the heir is given away by the Livery It was objected by Serjeant Finch 1. Where a man hath a right of action to recover land in Fee or an estate for life which may be conveyed to another there a Livery doth give away such a Right and shall there bind him But an estate in tail cannot be transferred to another by any manner of Conveyance and therefore cannot be bound by such a Livery given I answer It is no good Rule That that which doth not passe by Livery doth remain in the person which giveth the Livery 19 H. 6. Tenant in tail is attainted Office is found The estate tail is not in the King is not in the person attainted but is in abeyance So it is no good Rule which hath been put When Tenant in tail maketh a Feoffment Non habet jus in re neque ad rem If he have a Right then it is a Right of Entre or Action but he cannot enter nor have any action against his own Feoffment 19 H. 8. 7. Dyer If Discontinuee of Tenant in tail levieth a Fine with proclamations and the five years passe and afterward Tenant in tail dyeth his issue shall have other five years and shall be helped by the Statute for he is the first to whom the right doth accrue after the Fine levied for Tenant in tail himself after his Fine with Proclamations hath not any right But if Tenant in tail be
Judgement was affirmed for by intendment the Judgment was given upon the first Original which bore date before the Iudgment Another Error was assigned because the Plea was That such a one was seised of the Castle and Mannor of Mulgrave predictis in the plural number I answer that there is not any colour for that Error for the word predictis doth shew that the Mannor and Castle are not one and the same thing So upon the whole matter I pray that the Iudgment given in the Court of Pleas may be affirmed Sir Henry Yelverton argued for the Lord Sheffield that the Iudgment might be reversed There are three things considerable in the Case First If any right of the ancient estate tail was in Francis Bigot who was attainted at the time of his Attainder Secondly admit that there was an ancient right if it might be forfeited being a right coupled with a Possession and not a right in gross Thirdly Whether such a Possession discend to Francis Bigot that he shall be remitted and if this Remitter be not overreached by the Office First If by the Feoffment of Francis Bigot 21. H. 8. when he was Cestuy que use and by the Livery the right of the ancient entail be destroyed And I conceive it is not but that the same continues and is not gone by the Livery and Seisin made There is a difference when Cestuy que use makes a Feoffment before the Statute of 1 R 3. and when Cestuy que use makes a Feoffment after the said statute of 1 R 3 For before the statute hee gives away all Com 352. but after the statute of R. 3. Cestuy que use by his Feoffment gives away no Right In 3 H. 7 13. is our very case almost For there the Tenant in Tail made a Feoffment unto the use of his Will so in our Case and thereby did declare that it should be for the payment of his debts and afterwards to the use of himself and the heirs of his body and died the heir entred before the debts paid but in our Case he entred after the debts paid there it is said that the Feoffment is made as by Cestuy que use at the Common Law for his entrie was not lawfull before the debts paid But when Francis Bigot made a Feoffment 21 H. 8. he was Cestuy que use in Fee and then is the Right of the Estate tail saved by the Statute of 1. R. 3. And by the Statute of 1. R. 3. he gives the Land as Servant and not as Owner of the Land and so gives nothing but a possession and no Right 5 H. 7. 5. Cestuy que use since the Statute of 1 R. 3. is but as a Servant or as an Executor to make a Feoffment And if an Executor maketh a Feoffment by force of the Will of the Testator he passeth nothing of his own Right but only as an Executor or Servant 9 H. 7. 26. proves that Cestuy que use since the Statute of 1 R. 3 hath but only an Authority to make a Feoffment For Cestuy que use cannot make a Letter of Attorney to make Livery for him for he hath but a bare Authority which cannot be transferred to another Cestuy que use hath a Rent out of Land and by force of the Statute of 1 R. 3. he maketh a Feoffment of the Land yet the Rent doth remain to him for he giveth but a bare possession So in our Case the right of the Estate Tail doth remain in Francis Bigot notwithstanding his Feoffment as Cestuy que use by the Statute of 1 R. 3. If Cestuy que use by force of the Statute of 1 R. 3. maketh a Feoffment without Warranty the Vouchee shall not Vouch by force of that Warranty For as Fitzherbert saith Cestuy que use had no possession before the Statute of 27. H. 8. Cap. 10. 27 H. 8. 23. If Feoffees to Use make a Letter of Attorney to Cestuy que use to make a Feoffment he giveth nothing but as a Servant The Consequent of this Point is That the right of the old Estate Tail was in Francis Bigot at the time of his Attainder and was not gone by the Feoffment made 21 H. 8. The second Point is Whether a right mixt with a possession of Francis Bigot might be forfeited by the Statutes of 26. H. 8. and the private Act of 31. H. 8. The Statute of 31. H. 8. doth not save this Right no more then the Statute of 26. H. 8. For they are all one in words I say that he hath such a right as may be lost and forfeited by the words of the Statute of 26. H. 8. Cap. 13. For that Statute giveth three things First It gives the Forfeiture of Lands and not of Estates Secondly How long doth that Statute give the lands to the King For ever viz. to the King his Heirs and Successors Thirdly It gives the lands of any Estate of Inheritance in Use or Possession by any Right Title or means This Estate Tail is an Estate of Inheritance which he hath by the Right by the Title and by the means of coming to the Right it is forfeited These two Statutes were made for the punishment of the Child For the Common Law was strict enough against the Father viz. he who committed the Treason And shall the same Law which was made to punish the Child be undermined to help the Child The ancient Right shall be displaced from the Land rather then it shall be taken from the Crown which is to remain to the Crown for ever And this Statute of 26 H. 8. was made pro bonoâ— publico and it was the best Law that ever was to preserve the King and his Successors from Treason for it is as it were a hedg about the King For before this Statute Tenant in Tail had no regard to commit Treason For he forfeited his Lands but during his own life and then the Lands went to the issue in Tail But this Statute doth punish the Child for the Fathers offence and so maketh men more careful not to offend least their posterity may beg I take two grounds which are frequent in our Law First That the King is favoured in the Exposition of any Statute Com. 239 240. The second That upon the construction of any Statute nothing shall be taken by equity against the King Com. 233 234. Here in this Case although the Right were not in possession yet it was mixed with the possession from Anno 13. E. 1. untill 26. H. 8. Tenant in Tail feared not to commit Treason For the Statute of West 2. did preserve the Estate Tail so as the Father could not prejudice his issue per factum suum And therefore the Commonwealth considering that a wicked man did not care what became of himself so as his issue might be safe provided this Statute of 26. H. 8. Cap. 13. although the Statute of 16. R. 2. Cap. 5. which giveth the Premunire doth Enact that all Lands and
Tenements of one attainted in a Premunire shall be forfeited to the King Yet Tenant in Tail in such Case did not forfeit his Lands C. 11. part 63. b. as the Statute of West 2. Cap. 1. saith in particular words That Tenant in Tail shall not prejudice his issue Therefore the Statute of 26. H. 8. in particular words saith That Tenant in Tail shall forfeit his Lands for Treason The Right of Francis Bigot is not a right in gross but a Right mixed with a possession The Statute of West 2. Cap. 1. brought with it many mischiefs For by that Statute the Ancestor being Tenant in Tail could not redeem himself out of prison nor help his wife nor his younger children and that mischief continued untill 12. E. 4. Taltaram's Case and then the Judges found a means to avoid those mischiefs by a common Recovery and this Invention of a common Recovery was a great help to the Subject Then came the Statute of 32. H. 8. Cap. 36. which Enacted That Fines levied by Tenant in Tail should be a good barr to the issue of any Estate any way entailed If the Son issue in tail levieth a Fine in the life of his Father who is Tenant in tail it shall be a barr to him who levieth the Fine and to his issues And both these viz. the Common Recovery and the said Statute did help the Purchaser And shall not this Statute of 26. H. 8. help the King The Statute of 26. H. 8. Cap. 13. hath not any strength against the Ancestor but against the Child For the Construction of Statutes I take three Rules First When a Case hapneth which is not within the Letter then it is within the intent and equity of the Statute Com. 366. 464. Secondly All things which may be taken within the mischief of the Statute shall be taken within the Equity of the Statute 4. H. 6. 26. per Martin Thirdly When any thing is provided for by a Statute every thing within the same mischief is within the same Statute 14. H. 7. 13. The Estate tail of Francisâ— Bigot and Katharine his wife is forfeited by the Statute of 26 H. 8. There is a difference when the Statute doth fix the forfeiture upon the person As where it is enacted that J. S. shall forfeit his lands which he had at the time of his Attaindor The Judges ought expound that Statute only to J. S. But the Statute of 26 H. 8. doth not fix the forfeiture upon the person but upon the land it self And Exposition of Statutes ought to extend to all the mischiefs 8 Eliz. Sir Ralph Sadler's Case in B. R. where an Act of Parliament did enact That all the lands of Sadler should be forfeited to the King of whomsoever they were holden Sadler held some lands of the King in that case the King had that land by Escheat by the Common-Law and not by the said Statute Com. 563 The Law shall say that all the rights of the tail are joyned together to strengthen the estate of the King Tenant in tail before the Statute of 1 E. 6. cap. 14. of Chauntries gave lands to superstitious uses which were enjoyed five years before the said Statute of 1 E. 6. made Yet it was adjudged that the right of the issue was not saved but that the land was given to the Crown for the issue is excluded by the saving in the said Statute If Tenant in tail give the lands to charitable uses the issue is barred For the saving of the Statute of 39 Eliz. cap. 5. excludes him And he is bound by the Statute of Donis So the Statute of 26 H. 8. cap. 13. and the private Act of 31 H. 8. do save to all but the heirs of the Offenders The third Objection was That Ratcliffe was not excluded by the saving for it was said That the same doth not extend but to that which is forfeited by his Ancestors body And here Ratcliffe had but a Right and that was saved And the Statute doth not give Rights I answer first The Statute of 26 H. 8. is not to be expounded by the letter for then nothing should be forfeited but that only which he had in possession and use Tenant in tail is disseised and attainted for treason By the words of the said Statute of 26 H. 8. he forfeits nothing yet the issue in tail shall forfeit the lands for the issue in tail hath a right of Entrie which may be forfeited 6 H. 7. 9. A right of Entrie may escheat and then it may be forfeited Secondly The Statute is not to be construed to the possession but if he hath a mixt right with the possession it is forfeited but a right in grosse is not forfeited Tenant in tail of a Rent or Seignorie purchaseth the Tenancie or the Land out of which the Rent is issuing and is attainted He shall forfeit the Seignorie and Rent or the Land for the King shall have the Land for ever And then the Seignorie or Rent shall be discharged for otherwise the King should not have the Land for ever For the King cannot hold of any Lord a Seignorie 11 H. 7. 12. The heir of Tenant in tail shall be in Ward for a Meanaltie descended unto him the Meanaltie not being in esse and yet it shall be said to be in esse because of the King C. 3 part 30. Cars Case Although the Rent was extinguished yet as to the King it shall be in esse The difference is betwixt a Right clothed with a possession and a right in grosse viz. where the Right is severed from the possession there it is in grosse For there the Right lieth only in Action and therefore neither by the Statute of 26 H. 8. nor by the private Act of 31 H. 8. such a Right is not forfeited C. 3. part 2. C. 10. part 47 48. Right of Action by the Common-Law nor by Statute-Law shall escheat and therefore it is not forfeited For no Right of Action is forfeitable because the right is in one and the possession in another Perkins 19. A Right per se cannot be charged 27 H. 8. 20. by Mountague A man cannot give a Right by a Fine unless it be to him who hath the possession C. 10. part Lampits Case Sever the possibility from the right and it doth not lie in grant or forfeiture but unite them as they are in our Case and then the Right may be granted or forfeited for that Right clothed with a possession may be forfeited A Right clothed with the possession 1. It tastes of the possession 2. It waits upon the possession 3. It changes the possession The Bishop of Durham hath all Forfeitures for Treason by the Common-Law within his Diocess viz. the Bishoprick of Durham And if Tenant in tail within the Bishoprick commits Treason and dyeth the Issue in tail shall enjoy the land against the Bishop Dyer 289 a. pl. 57. For the Bishop hath not the land for ever but the Issue
afterward the Husband suffers the wood to grow five and twenty yeers and afterwards hee dieth The question was Whether the Wife being Tenant for life might cut that Underwood And it was moved What shall be said seasonable Underwood that a Termor or Tenant for life might cut Dyer Chief Justice and all the other Justices held That a Termor or Tenant for life might cut all Underwood which had been usually cut within twenty yeers In 11. H. 6. 1. Issue was taken If they were of the age of twenty yeers or no. But in the Wood-Countries they may fell seasonable wood which is called Sylva caedua at six and twenty eight and twenty thirty years by the custome of the Country And so the Usage makes the Law in severall Countries And so it is holden in the books of 11. H. 6. and 4. E. 6. But they agreed That the cutting of Oakes of the age of eight yeers or ten years is Waste But by Meade Justice the cutting of Hornbeams Hasels Willows or Sallows of the age of forty yeares is no Waste because at no time they will be Timber Another question which was moved was That at the time of the Feoffment it was seasonable Wood and but of the growth of fourteen or fifteen yeers If this suffering of the Husband of it to grow to 25 years during the Coverture should bind the Wife so as she cannot cut the Woods Gaudy Serjeant said That it should not bind the Wife For if a Warranty descend upon a Feme Covert it shall not bind her So if a man seized of Land in the Right of his Wife be disseised and a Descent be cast during the Coverture it shall not bind the Wife but that she may enter after the death of the Husband But by Dyer Chief Justice and all the other Justices This Permission of the Husband shall bind the Wife notwithstanding the Coverture for that the time is limited by the Law which cannot be altered if it be not the custome of the Country As in the case of 17. E. 3. Where a man makes a Lease for years and grants that the Lessee shall have as great commoditie of the Land as hee might have Notwithstanding these words he cannot dig the land for a Mine of Cole or Stone because that the Law forbids him to dig the land So in the principall Case The Wife cannot fell the Wood notwithstanding that at the time of her estate she might and afterwards by the permission of the Husband during the coverture the time is incurred so as she cannot fell it because the Law doth appoint a time which if it be not felled before such time that it shall not be felled by a Termor or a Tenant for life but it shall be Waste Hill 23. Eliz. In the Common Pleas. 7. A Man makes a Lease of a Garden containing three Roodes of Land and the Lessee is ousted and he brings an Ejectione firme and declares that he was ejected of three Roods of Land Rodes Serjeant moved That by this Declaration it shall be intended that he was ejected of the Garden of which the Lease was made and so the Ejectione firme would lie And it was holden by the Lord Chief Justice Dyer That a Garden is a thing which ought to be demanded by the same name in all Precipes as the Register and Fitz. N. Brevium is And this Action is greater then an Action of Trespasse because by Recovery in this Action he shall be put into Possession But Meade and Windham Justices contrary And they agreed that in all reall Actions a Garden shall be demanded by the name Gardinum otherwise not But this Action of Ejectione firme is in the nature of Trespasse and it is in the Election of the Party to declare as here he doth or for to declare of the Ejectment of a Garden for a Garden may be used at one time for a Garden and at another time be ploughed and sowed with Corn. But they conceived that the better order of pleading had been if he had declared that he was ejected of a Garden containing three Roodes of Land as in the Lease it is specified Hill 23. Eliz. In the Common Pleas. 8. SErgeant Fenner moved this case That Land is given to the Wife in tail for her Joynture according to the Statute of 11. H. 7. The Husband dieth the Wife accepts a fine Sur conusans de droit come ceo c. of a Stranger And by the same fine grants and renders the Land to him for an Hundred years whether this acceptance of a Fine and Render by the Wife were a forfeiture of her estate so as he in the Reversion or Remainder might enter by the Statute Mead and Dyer Justices it is a forfeiture and Mead resembled it to the Case in 1 H. 7. 12. where it is holden That if Tenant for life do accept of a Fine Sur conusans de droit come ceo c. that it is a forfeiture and the Lessor may enter But Fenner asked their opinions what they thought of the principall case But haesitavernut because they said it was a dangerous case and is done to defraud the Statute of 11. H. 7. Pasch 23. Eliz. in the Common Pleas. 9. A Man made a Feoffment in Fee to two to the use of himself and his wife for the term of their lives without impeachment of waste during the life of the Husband the remainder after their decease to the use of I. his son for the term of his life And further by the same Deed Vult concedit that after their three lives viz. of the Husband Wife and Son that I. S. and I. D. two other Feoffees shall be seized of the same Land to them and their heirs to the use of the right Heirs of the body of the Son begotten It was moved That by this deed the two later Feoffees should be seized to the use of the right Heirs of the body of the Son begotten after the death of the Husband Wife and the Son But it was holden by all the Justices That the second Feoffees had not the Fee because by the first part of the Deed the Fee-Simple was given to the first Feoffees and one Fee-Simple cannot depend upon another Fee-Simple Notwithstanding that after the determination of the former uses for life the Fee-Simple should be vested again in the Heires of the Feoffer and that the words That the second Feoffees should be seized should be void But Dyer Chief Justice and the other Justices were against that because there wanted apt words to raise the later use As if a man bargain and sell his Reversion of Tenant for Life by words of Bargain and Sale only and the Deed is not Enrolled within the six months but afterwards the Tenant for Life doth attorne yet notwithstanding that the Reversion shall not passe because Bargain and Sell are not apt words to make a Grant And that Case was so adjudged in the Common Pleas as the
24. Eliz. in the Kings Bench. 19. IN an Action upon the Case upon a Promise The consideration was Where I. S. had granted a Term to I. D. That afterwards upon the request of I. S. I. D. did make to W. an Estate for four years upon which W. brought his Action And after Verdict it was moved in stay of Judgement that there was no good consideration and a difference taken where the Promise was upon the Grant and where afterwards If it were before then the Condition was good but if it were afterwards it was not good And it was adjudged That the Plaintiffe Nihil capiat per billam Pasch 24. Eliz. in the Kings Bench. 20. AN Action upon the Case upon a Promise was The Consideration was That in consideration that the Plaintiffe Daret diâ—m solutionis the Defendant Super se assumpsit and because he doth not say in facto that he had given day It was adjudged that no sufficient Consideration was alledged But if the Consideration were Quod cum indebitatus c. the same had been a good Consideration without any more for that implies a Consideration in it self Pasch 24. Eliz. in the Kings Bench. 21. IT was said by Cooke That the Chancellor or any Judge of any of the Courts of Record at Westminster may bring a Record one to another without a Writ of Certiorare because one Judge is sufficiently known one to the other as 5. H. 7. 31. where a Certificate was by the Chancellor alone and to this purpose is 11. H. 4. But that other Judges of base Courts cannot do nor Justices of the Peace as 3. H. 6. where the certificate by Suitors was held void Pasch 25. Eliz. In the Common Pleas. 22. SKIPWITH'S Case IT was found upon a speciall verdict in an Action of Trespass that the place where c. was Copy-hold land And that the Custome is That quaelibet foemina viro cooperta poterit devise lands whereof she is seised in Fee according to the custome of the Manor to her Husband and surrender it in the presence of the Reeve and six other persons And that I. S. was seised of the land where c. and had issue two Daughters and died and that they married husbands and that one of them devised her part to her husband by Will in writing in the presence of the Reeve and six other persons and afterwards at another day shee surrendred to the Husband and he was admitted and she died and her Husband continued the possession And the Husband of the other Daughter brought an Action of Trespasse Rodes Serjeant The Custome is not good neither for the Surrender nor for the Will for two causes One for the uncertainty of what estate shee might make a Devise and because it is against reason that the Wife should surrender to the Husband Where the Custome shall not be good if it be uncertain he vouched 13. E. 3. Fitz. Dum fuit infra aetatem 3. The Tenant saith that the lands are in Dorset where the Custome is that an Enfant may make a Grant or Feoffment when he can number twelve pence And it was holden that because it is uncertain when he can so do the Custome is not good 19. E. 2. in a Ravishment of Ward the defendant pleaded that the custome is that when the Enfant can measure an ell of cloth or tell twelve pence as before that he should be out of Ward and it is holden no good custom for the cause aforesaid 22. H. 6. 51. a. there a man prescribed That the Lord of D. had used to have Common for him and all his Tenants And because it is not shewed what Lord whether the Lord mediate or immediate it is adjudged no good custome And as to the Surrender it is against reason that the Wife should give to the Husband for a Wife hath not any Will but the Will of her Husband For if the Husband seised in the right of his Wife make a Feoffment in Fee and the Wife being upon the land doth disagree unto it saying that shee will never depart with it during her life yet the Feoffment is good and shall binde during the life of the Husband as it is holden in 21. E. 3. And therefore it is holden in 3. E. 3. Tit. Devise Br. 43. That a Feme covert cannot devise to her Husband for that should be the Act of the Husband to convey the land to himself And in the old Natura Brevium in the Additions of Ex gravi quaerela it is holden so accordingly And the Case in 29. E. 3. differs much from this Case For there a woman seised of lands devisable took an Husband and had issue and devised the lands to the Husband for his life and died and a Writ of Waste was brought against him as Tenant by the Courtesie and it was holden that it did lie and that he is not in by the Devise for the reason there is because he was in before by the Courtesie But as I conceive that Case will disprove the Surrender for in as much as he had it in the Right of his wife he could not take it in his own Right Also he took another Exception in the principal Case because that the wife was not examined upon the Surrender but none of the Justices spake to that Exception but when the Record was viewed it appeared that it was so pleaded Further He said That the devise was void by the Statute of 34. H. 8. Cap. 5. where it is said It is enacted That Wills and Testaments made of any Lands Tenements c. by women Coverts or c. shall not be taken to be good or effectual in Law And he said That this Statute doth extend to customary Lands And as to that all the Justices did agree That it is not within the Statute And as to the Statute of Limitations Andâ—rson chief Justice said That if a Lease for years which perhaps will not indure sixty years shall be taken strong this shall Anderson moved That if the Lord Lease Copyhold land by Word Whether the Lessee might maintain an Ejectione firme and he conceived not for in an Ejectione firmâ— there ought to be a Right in Fact And although it be by conclusion it is not sufficient for that the Jury or Judge are not estopped or concluded And he conceived That if Tenant at Will make a Lease for years that it is no good lease betwixt him and the Lessor but that he may well plead that he had nothing in the land Meade contrary but they both agreed That the Book of 14. E. 4. which saith That if Tenant at Will make a lease for years that he shall be a Disseisor is not Law Anderson said That the prescription in the principal Case was not good for it is Quod quaelibet foemina viro cooperta poterit c. and it ought to be that feme Coverts possunt and by the Custome have used to devise to the
King And as to the second Point they held the Law to be cleer That after that he hath retained as many as by the Law he may retaine and they are sub Signo and Sigillo testified to bee his Chaplains and by reason thereof have qualification to have two Benefices and have two Benefices by vertue thereof although that afterwards they are removed for displeasure or otherwise out of service yet during their lives their Master cannot take other Chaplains which may by this Statute be qualified for so every Baron might have infinite of Chaplains which might be qualified which was not the meaning of the Statute and of that opinion is the Lord Dyer in his Reports And as to the third Point they held That although he were removed from the Domesticall Service of the Family yet hee did remaine Chaplain at large and so a Chaplain within the Statute And further the Opinion of the Court was in this Case That if the party qualified to die the Queen or other Master mentioned in the Statute might qualifie another againe Quod nota The Case was entred Pasch 28. Eliz. Rot. 1130. Scot. Mich. 28 29. Eliz. in the King 's Bench. 48. ONE made a Deed in this forme Noverinit c. that I have demised and to Farme letten all my Lands in D. to I. S. and his Wife and to the Heirs of their two Bodies for thirteen years And it was moved That it was an Estate in taile and 5. E. 3. and 4. H. 4. were vouched But Clenche Justice who was only present in Court was of Opinion That it is but a Lease for years although it was put that Livery was made secundùm formam chartae and his said That if one make a Lease for forty years to another and his Heirs and makes Livery that it is but a Lease for years and he said It is no Livery but rather a giving of Possession But he would have it moved again when the other Justices came Mich. 28 29. Eliz. in the King 's Bench. 49 AN Action upon the Case was brought against an Inn-keeper upon the Custome of England for the safe keeping of the things and Goods of their Guests and he brought his Action in another County then where the Inn was and it was said by Clench Justice That if it be an Action upon the Case upon a Contract or for words and the like transitory things that it may be brought in any County but in this Case he said It ought to be brought where the Inn is Mich. 28 29. Eliz. in the King 's Bench. 50. ONE charged two men as Receivers The Question was Whether one of them might plead Ne unque son Receiver and it was moved That he could not but ought to say Nâ— unque son Receiver absque hoc that he and his Companion were Receivers Clenchè and Suit Justices held That it was well without Traverse and Vide 10. E. 4. 8. Where an Account was brought against one supposing the receipt of Two hundred Marks by the hands of I. P. and R. C. The Defendant as to One hundred Marks pleaded That he received it by the hands of I. P. tantùm without that that he received it by the hands of I. P. and R. C. And as to the other One hundred Marks he received them from the hands of R. C. only without that that he received I. P. and R. C. And there it was doubted Whether it be good or not But in the end of the Case by Fitz. Accompt 14. If an Account be brought against two and one saith He was sole his Receiver and hath accounted before such an Auditor if the Plaintiffe answer unto his Bar he shall abate his Writ because the Receipt is supposed to be a joint Receipt And it is not like unto a Praecipe quod reddat against two Mich. 28 29. Eliz. in the King 's Bench. 51. AN Action upon the Case was brought against one for that he said to another I will give thee Ten Pound to kill such a one and the Question was Whether the Action would lie It was said by Sir Thomas Coâ—kaine that such a Lady had given poyson to such a one to kill her Child within her that the words were not Actionable Also one said That another had put Gun-Powder in the Window of a house to fire such a house and the house was not fired adjudged that the words were not Actionable The Case was betwixt Ramsey of Buckinghamshire and another who said That he lay in wait to have killed him it was found for the Plaintiffe and he had Forty Pound Damages given him But of the Principall Case the Court would advise Mich. 28 29. Eliz. in the Kings Bench. 52 IT was holden by the Court That the Habeas corpus shall be alwayes directed to him who hath the custody of the Body Therefore whereas in the case of one Wickham it was directed to the Maior Bailiffs and Burgesses Exception was taken unto it because the pleas were holden before the Maior Bailiff and Steward but the Exception was dissallowed But otherwise it is in a Writ of Error for that shall be directed to those before whom the Judgment was given In London the Habeas corpus shall be directed Majori Vicecomit London because they have the custodie and not to the whole Corporation But I conceive that the course is that the Writ is directed Majori Aldermannis Vicecomitibus c. Mich. 28 29 Eliz. In the Common Pleas. 53 MARSH and PALFORD's Case OWen moved this Case That one had an upper chamber in Fee and another had the neather or lower part of the same house in Fee and he who had the upper chamber pulled it down and he which had the lower room would not suffer him to build it up again But the opinion of the Justices was that he might build it up again if he did it within convenient time And there it was said that it had been a Question Whether a man might have a Free-hold in an upper chamber Mich. 28 29 Eliz. in the Kings Bench. 54. A Question was moved to the Court Whether Tithe should be paid of Heath Turf and Broom And the opinion of Suit Justice was That if they have paid tithe Wool Milk Calves c. for their cattell which have gone upon the Land that they should not pay tithe of them But some doubted of it and conceived That they ought to say that they have used to pay those Tithes for all other Tithes otherwise they should pay tithe for Heath Turf Broom c. Mich. 28 29. Eliz. in the Kings Bench. 55. TWo Parsons were of two severall Parishes and the one claimed certain Tithes within the Parish of the other and said That he and all his Predecessors Parsons of such a Church scil of D. had used to have the Tithes of such Lands within the Parish of S. and that was pleaded in the Spiritual Court and the Court was moved for to grant
which implyes an Affirmative which yet seems to be repugnant to a Negative as in 21. H. 6. 19. In a Writ of Entrie the Defendant pleaded the deed of the Demandant after the darrein Continuance The Demandant said It was not his deed after the darrein Continuance And that was holden a Negative pregnans wherefore he was compelled to plead and say he made it by dures before the darrein Continuance such a day absque hoc that he made it after the darrein continuance and then Issue was taken upon it The same Case is in 5. H 7. 7. But there it is said That in Debt upon a Bond to perform an Arbitrement Non fecerunt Arbitrementum per diem is no Negative pregnans The same Law that non deliberavit arbitrium in Script 38. H 6. in Formedon Ne dona pas in taile is a Negative pregnans Vide 39 H. 6. The Case of the Dean and Chapter The second Exception was That he hath pleaded neque such nor such nor such had disturbed him by any indirect means but onely by due course of Law And that cannot be tryed neither by Jury nor by the Judges Not by the Jury because it is not to be put to them whether they had disturbed him by indirect means or by due course of Law for they shall not take upon them the construction What is an indirect means and what is the due course of Law for it appertaineth to the Justices to adjudg that Not by the Judges because hee hath not put it certain that it was a due course of Law by which he disturbed him As 22. E. 4. 40. In Debt upon a Bond the Defendant saith that it is upon condition That if the Defendant or any for him came to Bristow such a day and there shewed to the Plaintiff or his Councell a sufficient Discharge of an Annuity of forty shillings per annum which the Plaintiff claims out of two Messuages of the Defendant in D that then c. The Defendant said that A. and B. by the assignement of the Defendant came the same day to Bristow and tendered to shew to N and W. of the Plaintiffs Councell a sufficient Discharge of the Annuity and that they did refuse to see it and demanded judgment of the Action The Plaintiff did demur upon the Plea And after a long argument it was adjudged by all the Justices to be no Plea c. because it lay in the judgment of the Court to judg of it and he did not shew in certain what discharge he tendered as a Release Unitie of possession c. If a man be bound to plead a sufficient plea before such a day in Debt upon such a Bond it is no plea to say That he hath pleaded a sufficient plea before the day but hee ought to shew what plea he hath pleaded For the Court cannot tell whether it be a sufficient plea or not if it do not appear what manner of plea it is 35 H. 6. 19. The Condition of a Bond was That where the Plaintiff was indebted to J. S. in one hundred pounds If the Defendant acquit and discharge the Plaintiffe that then c. The Defendant pleaded That hee had discharged him c. and the Plaintiffe did demurre upon the plea because hee did not shew how and it was holden no good plea. So 38. H. 8. Br. Condition 16. per curiam in the Kings Bench where a man pleaded That he had saved him harmlesse it was no Plea without shewing how because he pleaded in the Affirmative contrary if he had pleaded in the Negative as Non damnificatus est Suit and Clenche Justices said That if he had pleaded That he was not disturbed by any indirect means it had been good enough Gaudy If he had said That he was not disturbed contra formam conditionis praedict ' it had been good as upon a pleading of a Statute Ne entra pas contra formam Statuti Clench If I be bound to suffer I. S. to have my house but not I. D. I ought to answer That I have suffered the one and not the other to have it Suit Justice They are both severall issues and one shall not be repugnant to the other Mich. 28 29 Eliz. In the Kings Bench. 75 STURGIE'S Case A Case was moved upon the Statute of 5. Eliz. Cap. 14. The Case as I conceive was thus Grandfather Father and Daughter Land descended from the Grandfather to the Father who made a Lease for one hundred years the Father died and the Daughter forged a Will of the Grandfather by which he gave the Land to the Father for life the Remainder to the Daughter in Fee and the same was forged to have avoided an Execution of a Statute Staple the Lease being defeated and if it were within the Statute of 5. Eliz. was the question Solicitor That it was within the statute and within the first Branch viz. If any shall forge any deed c. to the intent that the Estate of Free-hold or Inheritance of any person c. in or to any Lands Tenements or Hereditaments Freehold or Copyhold or the right Title or Interest of any c. of in or to the same or any of them shall or may be molested c. Lessee for years hath a Title hath an Interest hath a right therefore within the words of the Statute and those words shall be referred to the words Lands Tenements c. But Cook said They shall be referred to the words precedent viz. Estate of Freehold or Inheritance and then a Lease for years is not within them Also by the Solicitor A Testament in writing is within the words of the Statute and therefore he recited a clause in the end of the Statute viz. and if any person plead publish or shew forth c. to the intent to have or claime thereby any Estate of Inheritance Freehold or Lease for years And also he said a Statute Staple is an estate for years although it be not a Lease for years because it is not certain Cook If she should be within both branches then she should be twice punished which Law will not suffer And the Statute is whereby any Estate for years shall be claimed and she would not claim but defeat an Estate for years and a Statute Staple is not a Lease for years and the Statute is not to be taken by Equity because it is a Penall Law Solicitor When the Statute is extended then it is an Estate for years although it be uncertain If a man forge a Lease for years it is directly within the Statute But if a man have a Lease and another is forged to defeat it it is a question whether it be within the Statute And all the doubt of this Case is upon the reference of these words Right Title Interest And it was adjourned Mich. 28 29. Eliz. in the Kings Bench. 76 THE Vicar of Pancras Case was argued again by Godfrey And he said That no Plea shall be
the Person and to that purpose he cited 15 E. 4. 29. And he agreed the Case That if the Lord improve part of the Common that he shall not have common for the Residue because of the same Land newly improved for he cannot prescribe for that which is improved by 5. Ass 2. But here he doth prescribe not in the person or in or for a new thing but that the usage of the Towne hath been That the Inhabitants shall have common and that common is not appendent nor appertinent nor in grosse by Needham 37 H. 6. 34. b. Besides he said That if the house of a Freeholder who hath used to have such common fall down and he build it up again in another place of the Land that he shall have common as before And he put a difference betwixt the case of Estovers and this Case where a new Chimney is set up for that makes a new matter of charge and he much stood upon the manner of the Prescription Gaudy Serjeant contrary and he took Exception to the Prescription for he saith that it is antiqua villa and doth not say time out of mind and such is the Prescription in 15. E. 4. 29. a. and if it be not a Town time out of mind c. he cannot prescribe that he hath used time out of mind c. And he said That if it should be Law that every one who builds a new house should have common it should be prejudiciall to the Ancient Tenants or impaire the common And so one who hath but a little land might build 20 houses and so an infinite number and every house should have common which were not reason Anderson chief Justice He who builds a new house cannot prescribe in common for then a prescription might begin at this day which cannot be and he insisted upon the generall loss to the ancient Tenants Pâ—riam Justice If it should be Law that he should have common then the benefit of improvement which the Statute giveth to the Lord shall be taken away by this means by such new buildings which is not reason So as all the Justices were of opinion That he should not have common but Judgement was respited untill they had copies of the Record And Hillary Term following the Case was moved again and Anderson and Periam were of Opinion as they were before and for the same reasons But Windham Justice did incline to the contrary But they did all allow That he who new bulids an old Chimney shall have Estovers so a house common So if a house fall down and the Tenant build it up again in another place Periam If a man hath a Mill and a Watercourse time out of mind which he hath used to cleanse if the Mill fall down and he set up a new Mill he shall have the liberty to cleanse the Watercourse as he had before And that Terme Judgement was given for the Defendant to which Windham agreed Mich. 28 29. Eliz. in the Common Pleas. 111 IN a Replevin the parties were at Issue upon the Property and it was found for the Plaintiff and Damages intire were assessed and not for the taking by it self and for the value of the Cattell by themselves for the Judgement upon that is absolute and not conditionall and also if the Plaintiffe had the Cattell the Defendant might have given the same in Evidence to the Jury and then they would have assessed Damages accordingly viz. but for the taking Mich. 28 29. Eliz. in the Common Pleas. 112 A. bargaines with B. for twenty Loads of Wood and B. promises to deliver them at D. if he fail an Action upon the Case lieth But Periam Justice said That upon a simple contract for wood upon an implicative promise an Action upon the Case doth not lie Rodes Justice If by failer of performance the Plaintiff be damnified to such a sum this Action lieth Mich. 28 29 Eliz. in the Common Pleas. 113 A Lease of Lands is made excepting Timber-Woods and Under-woods And the question was Whether Trees Sparsim growing in Hedge rowes and Pastures did passe And difference was taken betwixt Timber-wood being one Wood and Timber Woods being severall Words although it bee Arbor dum crescit lignum dum crescere nescit yet in common speech that is said Timber which is fit to make Timber Then it was moved Who should have the Lops and Fruits of them and the Soile after the cutting of them downe and also the Soile after the Under Woods and as to that a difference was taken where the words are generally All woods and where they are his woods growing And in speaking of that case another case was moved viz. If a stranger cut down woods in a Forrest and there is no fraud or collusion betwixt him and the owner of the Land Whether the King should have them or the owner of the Soile And it was holden That the owner of the Soile should have them and yet the owner could not cut them downe but is to take them by the Livery of one appointed by the Statute Mich. 28 29. Eliz. in the Common Pleas. 114. A. makes a Lease of Lands to B. for ten years rendring rent And B. covenants to repaire c. Afterwards A. by his Will deviseth that B. shall have the Lands for thirty years after the ten years under the like Covenants as are comprised in the Lease Fenner moved it as a question If by the Devise those which were Covenants in the first Lease should be Conditions in the second for they cannot bee Covenants for want of a Deed And if they should not be Conditions the heir of the Lessor were without remedie if they were not performed A Devise for years paying ten pounds to a stranger is a Condition because the stranger hath no other remedy Gaudy Justice By the Devise to him to do such things as he was to do by the Lease makes it to be a Condition which was in a manner agreed by all the other Justices Yet Periam and Rodes Justices said That the first Lease was not defeisable for not performance of the Covenants nor was it the intent of the Devisor that the second should be so notwithstanding that his meaning was that he should do the same things Periam The Covenant is in the third person viz. Conventum Aggreatum est And see 28. H. 8. Dyer where the words Non licet to the Lessee to assigne make a Condition Mich. 28 29. Eliz. in the Common Pleas. 115. BARBER and TOPESFEILD'S Case A. being Tenant in taile of certain Lands exchanged the same with B. B. entred and being seised in Fee of other Lands devised severall parcels thereof to others and amongst the rest a particular estate unto his heir Proviso That he do not re-enter nor claim any of his other Lands in the destruction of his Will And if he do that then the estate in the Lands devised to him to cease A. dieth his issue entreth into the Lands in
10. Jacobi Râ—t 2504. The Plaintiff counted that the Defendant Cepit avena of the Plaintiff apud Occould and doth not say In quodam loco c. upon which the Defendant did demurre in Law Hutton Serjeant argued for the Plaintiffe and said That notwithstanding the many presidents which had been shewed that yet the Declaration was well enough For he said That the presidents did not prove that it was necessary that it should be therein shewed in quodam loco vocat ' because the Defendant upon the matter is the Actor and therefore he best knows the place where he took the Cattel And in 9. E. 4. In a Homine replegiando the Towne onely was named and it is not there debated whether the same were good without mentioning in quodam loco 49. E. 3. 14. and 24. 9. H. 6. and 3. H. 6. There the traverse was of the taking at Dale sans ceo c. that the same was at Sale and in quodam loco is not expressed Cook Chief Justice said That there is no book which taketh this Exception and said That notwithstanding the Presidents cited that it was well enough For hee said There is a difference betwixt Presidents which are the Inventions of Clarks and of judiciall Presidents And the effect of the Suit in this case is not the shewing of the place but the having of the Cattel and it is on the part of the Defendant to shew where hee took the Cattel for perhaps the Plaintiffe doth not know where he took them and if he did know the place where they were taken yet perhaps hee hath not witnesses to prove the same and so by this means the Plaintiffe should be at a great mischiefe and delayed in his Suit Whereas a Replevin is festinum remedium to have his Cattel again which perhaps are his plough Cattel Warburton Justice said That there is a difference betwixt Actions brought in the King's Bench and in this Court For there in an Action of Trespasse the same may be abutted because it is no Originall Writ as it is here and hee said That there although the place bee not certainly abutted yet it may be good And he compared the Case at barre to the pleading of a Joynt-tenancy for he said In case it bee pleaded of the part of the Tenant himselfe hee is to shew how the Joynt-tenancy came because it lyeth in his knowledge but contrary if it were on the Plaintiffs part And in this Case he who best knowes when the taking was ought to shew it and that is the Avowant for it is no reason that the Plaintiffe for missing of the place not being the substance should be triced Cook If one in the night drive my Cattel into his Land and afterwards doth distrein them it is no lawfull distresse At another day Cook said That in the Book Nov. Narration ' it is said That the Town place and collour of the beasts ought to bee shewed by the Plaintiffe in the Replevin and he said If the Colour had been left out he would have given credit to the Book but because it is clear that the Colour is not needfull to be shewed therefore he did not approve of the Authority for the place And he cited 4. E. 3. 13. where the Defendant said it was in the Hamlet And 18. E. 3. 10. E. 3. and 49 E. 3. 14. where the Towns only are mentioned And it was said That in an Ejectione firme brought in the Kings's Bench the usuall course is to abutt the Land yet he said It might be omitted in Trespasse although the same be the usuall forme of that Court and it may be generall but if a place be alledged then the same is materiall and the Plaintiffe doth thereby give an advantage unto his Adversary At another day Haughton Serjeant argued for the Defendant That the expressing of the place where the taking was is materiall in the Declaration and he said That as the Register is the rule for Originall Writs from which forme a man may not vary so he said The Book of Entries and Presidents of the Courts were rules for pleadings from which there ought to be no variance and therefore he cited 33. H. 6. 14. Where in a Writ of Entry in the nature of an Assize the Demandant counted How that A. gave Lands unto J. S. his Cosen whose Heir he is in tail and shewed the descent And Exception was taken unto the Count because it was not the forme of the Pleading in that Court wherefore it was awarded That he should count that ipse fuit seisitus ut de libero tenemento which is not repugnant although that he had an Estate in tail because the same was the Ancient form used in the Court So he said in the principall Case the ancient used forme of the Court ought to bee observed which was to expresse in the Count the place in which the taking was and hee cited 35. H. 6. 40. Where Exception was taken by the Defendant because the Plaintiff in the Replevin did not alledge the place where the taking was and therefore per curiam the Plaintiffe took nothing by his Writ and he denyed the opinion of 9. E. 4. 41. and said That in reason the place ought to be shewed because if the Defendant would plead any matter to the Jurisdiction of the Court the place must be shewed and he said That those Records which were shewed on the other side were but of later times and the Point in question in none of those Cases came in debate judicially wherefore he concluded for the Defendant Hutton Serjeant argued again and said That the Formes of Originall Writs are certain from which a man is not to vary but he said That Counts and Declarations are to be according to the matter And in the principall Case he conceived That it was not necessary that the place where the taking was be shewed and hee cited 4. Ed. 3. 13. in a Replevin the Plaintiff declared of the taking of his Cattel in Holme without saying In quodam loco vocat ' c. and it was holden good because the Towne or Hamlet is sufficient certain and 21. H. 7. 22. a. in a Replevin the Plaintiffe declared of a taking at D. the Defendant said That he took them at S. and not at D. and avowed and no Exception was taken thereunto for want of expressing the place in quo c. And he said That in 9. Ed. 4. 41. and 25. it is said That in a Replevin the use is to declare in a certain place but if the place be omitted yet it is good enough and that Book is after 33. H. 6. 40. and hee said That the cause of the Judgement in 33. H. 6. might be because there were Blanks left for the place and the Plaintiff had begun to alledge the certain place for the Record is In quodam loco vocat ' without expressing the place but Blank which he could not affirme and therefore it
the Fleet because he had made Return of a Writ contrary to what he had said in the same Court the day before and 11. H. 6. was vouched by Warburton Justice That if the Sheriff do return that one is languidus in prisona whereas in truth he is not languidus the Sheriff shall be sued for his false Return which was agreed by the whole Court Quod nota Mich. 11. Jacobi in the Common Pleas. 318 WArburton Justice asked the Pronothories this question If in Trespass the plaintiff might discontinue his action within the yeer To which the Pronothories answered That if it be before any plea be pleaded that he might But the Justices were of a contrary opinion that he could not because then costs which are given by the Statute should be lost Mich. 11. Jacobi In the Common Pleas. 319 LAISTON's Case IN Trespass for a Wâ—y the Defendant pleaded a plea in bar which was insufficient and afterwards the plaintiff was Non-suit yet it was resolved by the Court that the defendant should have his costs against the plaintiff But if a default be in the originall Writ and afterwards the plaintiff is Non-suit there the defendant shall not have costs because that when the Original is abated it is as if no suit had been And so was the opinion of the whole Court Mich. 11. Iacobi in the Common Pleas. 320 HILL and GRUBHAM's Case THe Case was this A Lease was made unto Grubham by a deed paroll Habendum to him his wife and his daughter successivè sicut scribuntur et nominantur in ordine Afterwards Grubham dyed and then his wife dyed And if it were a good estate in Remainder to his daughter was the Question Harris Serjeant The Remainder is void and not good by way of Remainder for the incertainty C. 1. part in Corbets case In all Contracts and bargains there ought to bee certainty And therefore 22. H. 6. is That if a Feoffment be made to two et haeredibus it is void although it be with warranty to them and their heirs Vide 9. H. 6 35. Where renunâ—iavit totam communiam doth not amount unto a Release because it is not shewed to whom the Release is and so in 29. Eliz. in the Kings Bench in Windsmere Hulbards case Where an Indenture was to one Habendum to him and to his wife and to a third person Successive it was holden that it was void by way of Remainder to any of them And there it was Resolved 1. That they did not take presently 2. That they could not take by way of Remainder And 3. that They could not take as Occupants because that the intent of the Lessor was that they should take but as one estate But the Court was of opinion against Harris And Resolved That the daughter had a good estate in Remainder and that the same did not differ from the Case in Dyer Where a Lease was made by Indenture to one Habendum to him to another successivè sicut nominantur in Charta for that those words Sicut nominantur in Charta maketh the estate to be certain enough And so they said in this Case Sicut scribuntur et nominantur in Ordine is certain enough and shall be taken to be Sicut scribuntur et nominantur in eadem charta But they agreed according to the Case in Brooks Cases That a Lease to three Habendum 〈…〉 Mich. 11. Jacobi in the Common-Pleas 321. TRAHERNS Case AN Assize of Nusans was brought against the Defendant because that Levavit quandam domum ad nocumentum c. And the Plaintiff shewed how that he had a Windmil and that the Defendant had built the said house so as it hindred his Mill And the Jury found that the Defendant levavit domum and that but two feet of it did hinder the Plaintiffs Mill and is ad nocumentum And how Judgment should be given was the question And the Court was of opinion That Judgment should be that but part of the house should be abated viz. That which was found to be ad nocumentum And it was said by some That the Assise is such a Writ which extends to the whole house and therefore that the whole house should be abated according to the Writ But a difference was taken betwixt the words Erexit and Levavit For Erexit is but when parcel of a house is set up ad nocumentum but Levavit is when an entire house is levied from the ground And it was said by Hobart Chief Justice That if the Defendant had not levied the house so high by two yards it had been no Nusans for the Jury find that the two yards only are ad nocumentum And therefore he conceived that the Writ was answered well enough and that but part of the house should be abated For the Writ is Quod levavit quandam domum c. And the Verdict is Quod levavit domum But that but two yards of it is ad nocumentum And therefore he said the Writ is answered well enough and that the Judgment should be given That that only should be abated which was ad nocumentum c. Quaere for the Case was not resolved And vid. Batten Sympsons Case C. par 9. to this purpose Mich. 11. Jacobi in the Common-Pleas 322. BAGNALL and POTS Case IT was resolved by the Court in this Case That when an Issue is joyned upon Non concessit that the Issue shall be tryed where the Land is But if a Lease be in question and Non concessit be pleaded to it it shall be tryed where the Lease was made 2. It was resolved That if Copy-hold land be given to superstitious uses and the same cometh unto the King by the Statute That the Copyhold is destroyed and the Uses shall be accompted void But it was resolved That in such Case by the Statute which giveth this Land so given to superstitious uses to the King that the King hath not thereby gained the Freehold of the Copyhold but that the same remaineth in the Lord of the Mannor Mich. 11. Jacobi in the Common-Pleas 324. JUCKS Sir CHARLS CAVENDISH's Case A Parson sued for the substraction of Predial Tythes upon the Statute of 2 E. 6. in the Spiritual Court The Defendant made his suggestion That for such a Farm upon which the Tythes did arise there was this custom That when the Tythes of the Lands were set forth that the Owners of the said Lands had used time out of mind to take back thirty sheafs of the Tythe-corn and shewed that he was the Owner of the said Farm and that according to the said custom after the Tythes were set forth that he did take back thirty sheafs thereof and thereupon prayed a Prohibition And in this Case it was said by the Court That it ought to be averred that the Farm was a great Farm for otherwise it should be the impoverishing of the Church and would take away a great part of the profit of the Parson
And it was further said by the Court That if there were but thirty Tythe-sheafs in all that the Owner should not have them for then the Custom should be unreasonable And Day was given to the other side to shew Cause why the Prohibition should not be awarded Mich. 11. Jacobi in the Common-Pleas 325. GANDEN and SYMMON's Case NOte That where a Juror is not challenged by one party who had sufficient cause of challenge and afterwards is challenged by the other side and afterwards the party doth release his challenge in that case the first party cannot challenge the same Juror again because he did foreslow his time of challenge and he had admitted the party for to be indifferent at the first Mich. 11. Jacobi in the Common-Pleas 326. The Bishop of CHICHESTER and STRODWICK's Case IN an Action of Trespass for taking away of Timber and the Boughs of Trees felled The Defendant as to the Timber pleaded Not guilty And as to the Boughs he made a special Justification That there is a Custom within the Mannor of Ashenhurst in the County of Sussex That when the Lord fels or sels Timber-trees that the Lord is to have only the Timber and that the poor Tenants in Coscagio parte Manerii time out of mind have used to have the Branches of the Trees for necessary Estovers to be burnt in necessario focali in terris tenementis And the Opinion of the Court was That the Custom was not well expressed to have Estovers to burn in terris tenementis for that Estovers cannot be appertaining to Lands but to Houses only And therefore whereas the Defendant in the Case did entitle himself to a house and lands and gave in Evidence that the Custom did extend to Lands it was holden that the Evidence did not maintain the Issue And the Custom was alleadged to be That the Lord should have Quicquid valeret ad maremium and that the Freeholders should have ramillos Which as Hobart Chief Justice said is to be meant all the Arms and Boughs for whatsoever is not maremium is ramillum 2. It was holden in this Case That the Non-use or Negligence in not taking of the Boughs did not extinguish nor take away the Custom as it hath been oftentimes resolved in the like case And note that in this Case to confirm the said Custom the Book-case was cited which is in 14. E. 3. Fitz. t' Bar. 277. and the same was given in and avowed for good Evidence where the Case was That the Bishop of C. which shall be intended the Bishop of Chichester brought an Action of Trespass for felling of Trees and carrying them away where the Defendant pleaded That he held a Messuage and a Verge of Land of the Bishop and that all the Tenants of the Bishop within the Manor of A. ought to have all the Windfals of Trees and all the Boughs and Branches c. Which Case as Harris Serjeant conceived was the Case of the very Mannor now in question and the Tenant there as in this Case made a special Justification and there it was holden that it was good and adjudged for the Defendant Also in that Case it was adjudged That the Lord should have Maremium and that the Tenants should have Residuum which shall be intended the Boughs and Branches And the Custom in the Case was adjudged good But because the Defendant alleadged the Custom to be to have the same as Estovers to be burned in terris and gave Evidence only to the Messuage it was found against the Defendant for that the Evidence did not maintain the Issue Mich. 11. Jacobi in the Common-Pleas 327. VAUGHAN's Case IN a Formedon in the Discender the Tenant had been essoined upon the Summons and also upon the View And after was pleaded Ne dona pas the general issue and thereupon issue was joyned And if he might be essoined again after issue joyned was the Question And the Court was of opinion That in a real action the Tenant may be essioned after Issue joyned but not in a personal action by the Statute of Marlebridge And Hobart Chief Justice said That the Statute of Marlebridge gave not any Essoin but only did restrain Essoins and therefore in real Actions the same is left as it was at the Common Law and by the Common Law the Tenant might be Essoined after Issue joyned And note per totam Curiam That if an Essoin be not taken the first day it shall never after be taken Mich. 11. Iacobi in the Common-Pleas 328. CLAY and BARNETS Case IN an Ejectione Firme the Case was this Sir Godfrey Foliamb had issue James his son who had issue Francis And Sir Godfrey Foliamb was seized in Fee of divers Lands as well by purchase as by discent in sundry Towns viz. Chesterfield Brampton c. in the Tenures of A. B. C. c. and dyed James Foliamb his son 7 E. 6. made a Conveyance of divers Lands to Francis Foliamb being his younger son in haec verba viz. Omnia mea Mesuagia terras tentam in Chesterfield Brampton c. modo in tenuri of the said A. B. C. quae pater meus Galfrid Foliamb perquesivit from divers men whom he named in certain And also convey a House called the Hart to the same Francis which came to him by discent by the same Conveyance which was in the occupation of one Celie and not in the Tenures of the said A. B. C. And the great Question upon the whole Conveyance was Whether all the Lands which he had by Discent in the said Towns and in the Occupations and Tenures of the said A. B. C. did pass or only the purchased Lands And it was resolved by the whole Court That the Conveyance did pass only the Lands which he had by purchase except only the said House which was precisely named and conveyed and did not pass the Lands which he had by Discent For if all the Lands which he had by Discent should pass by the general words then the special words which passed the House which he had by Discent should be idle and frivolous and that was one reason ex visceribus causae that only the purchased Lands did pass 2. It was said by Justice Warburton That if a man giveth all his Lands in D. in the Tenures of A. B. and he hath Lands in D. but not in their Tenures that in that case all his Lands in D. passeth So if a man give all his Lands in D. which he had by Discent from his son there all his Lands whatsoever shall pass Hobart acc ' and said That if a man gives all his Lands in the County of Kent if he have Lands within the County they do pass And he said that in a Conveyance every restriction hath his proper operation and in the Conveyance in the principal case there were three restrictions 1. All his â—ands in such Towns viz. Chesterfield Brampton c. 2. All his lands in the
6. 30. 18 E. 4. 2. 36 H. 6. 7. Also he said When a Declaration is general the Defendant need not traverse 1 E. 4. 9. 2 E. 4. 28. And further he said That the Statute of 27 Eliz. cap. 5. of Demurs helped that defect for that it is but only in matter of form But the Justices did not argue that point But the Question which they made was Whether the Constitution or Ordinance were lawful or not And as to that it was holden by the whole Court That the said Ordinance was unlawful And it was agreed by the Court That the King might make Corporations and grant to them that they may make Ordinances for the ordering and government of any Trade but thereby they cannot make a Monopoly for that is to take away Free-trade which is the birthright of every Subject And therefore the Case was in 2 H. 5. 5. in Debt upon a Bond upon Condition That one should not use his Trade of a Dyer in the Town where the Plaintiffe did inhabit for one year And there said That the Obligation was void because the Condition was against the Law And he swore by God if the Plaintiffe were present that he should go to prison till he had paid a Fine to the King Yet regularly Modus Conventio vincunt legem 2. It was resolved That although such Clause was contained in the Kings Letters Patents yet it was void But where it is either by Prescription or by Custome confirmed by Parliament there such an Ordinance may be good Quia Consuetudo Legalis plus valet quam Concessio Regalis The King granted unto the Abbot of Whitny the Custody of a Port which is as it were a Key of the Kingdom and therefore the Grant was void and so adjudged And such Grants are expresly against the Statute of 9 E 3. cap. 1. And the Charter granted by King Henry the 8. to the Physitians of London hath the same Clause in it But if it had not been confirmed by Act of Parliament made 33 H. 8. it had been void The King granted unto B. that none besides himself should make Ordnances for Battery in the time of war Such Grant was adjudged void But if a man hath brought in a new Invention and a new Trade within the Kingdom in peril of his life and consumption of his estate or stock c. or if a man hath made a new Discovery of any thing In such Cases the King of his grace and favour in recompence of his costs and travail may grant by Charter unto him That he only shall use such a Trade or Trafique for a certain time because at first the people of the Kingdom are ignorant and have not the knowledge or skill to use it But when that Patent is expired the King cannot make a new Grant thereof For when the Trade is become common and others have been bound Apprentices in the same Trade there is no reason that such should be forbidden to use it And Cook Chief Justice put this Case The King granted to B. That he solely should make and carry Kersies out of the Realm and the Grant was adjudged void which Crook concessit 3. It was resolved That this Charter was void because of the words viz. Nisi ante eos vel duos eorum probationem fecerit c. And therefore it was considered what proof should be sufficient for the party And as to that it was agreed That the proof cannot be upon Oath for such a Corporation cannot admidister an Oath unto the party And then the proof must be by his Indentures and Witnesses and perhaps the Corporation will not allow of any of them For which the party hath no remedy against the said Corporation but by his Action at the Common Law and in the mean time he should be barred of his Trade which is all his living and maintenance and to which he had been Apprentice for seven years Another reason was given because that by this way they should be Judges in their own cause which is against the Law And the King cannot grant unto another to do a thing which is against the Law And afterwards Trin. 12 Jacobi Judgment was entred Quod Querentes nihil capiant per Billam And Judgment was then given for the Defendant Pasch 12 Iacobi in the Kings Bench. 352. LINSEY and ASHTON's Case LInsey brought an Action of Debt against Ashton upon a Bond the Condition of which was to perform an Award The Defendant said that the Award was That the Defendant should surcease all suits depending betwixt them which he had done The Plaintiffe in his Replication said That the Arbitrators made such Award ut supra and also that the Defendant should pay unto the Plaintiffe 25l. at the house of J. S. absque hoc that they made the other Award only Upon which the Defendant did rejoyn and said That well and true it is that they made those Awards c. But they further awarded that the Plaintiffe should release unto the Defendant which he had not done And upon the Rejoynder the Plaintiffe did demur in Law And the opinion of the Court was without question That the Plea was a departure 19 H. 6. 19. But it was argued by Finch That the Replication was insufficient For the Plaintiffe ought not to have traversed as this Case is because that a man ought not to traverse a thing alleadged by Implication but ought to traverse that which is alleadged de facto upon which there may be an issue joyned And to prove the Traverse void the Case in 11 H. 6. 50. was put But the Exception was not allowed by the Court Another Exception was taken because the Award it self was void because it was to do a thing upon the Land of another man which he might not lawfully do And although the Arbitrators might award him to do the thing which is inconvenient yet they cannot award him to do a thing which is impossible and against the Law as in 17 E. 4 5. Two were bound to stand to the Arbitrement of J. S. of all Trespasses who awarded that the one should pay unto the other 40. and that he find Sureties to be bounden for the payment of it And by the opinion of the Justices the Award was void because he could not award a man to do that which did not lie in his power and he hath no means to compel the stranger to be bound for him But the opinion of the whole Court was against Finch For first the mony is to be paid apud domum J. S. and not in domo And it might be for any thing that appeareth that the said House is adjoyning to the High-way so as every Stranger might lawfully come unto it although he might not come into it without being a Trespassor But admit it be not adjoyning to the High-way yet he might come as neer unto the house as he could or he might get leave to come thither Secondly It was
the time of King Henry the 8. said That if the King should arrest him of High-Treason that he would stab him with his dagger and it was adjudged a present Treason So was it also adjudged in the Lord Stanley's Case in the time of King Henry the 7. who seeing a Young-man said That if he knew him to be one of the Sons of E. 4. that he would aid him against the King In the like manner a woman in the time of Hen. 8. said That if Henry the 8. would not take again his wife Queen Katherine that he should not live a year but should die like a dog So if discontented persons with Inclosures say That they will petition unto the King about them and if he will not redress the same that then they will assemble together in such a place and rebell In these Cases it is a present Treason and he said That in point of Allegiance none must serve the King with Ifs and Ands. Further Cook Chief Justice said That Faux the Gunpowder Traitor being brought before King James the King said to him Wherefore would you have killed me Faux answered him viz. Because you are excommunicated by the Pope How said the King He answered Every Maunday-Thursday the Pope doth excommunicate all Herâ—tiques who are not of the Faith of the Church of Rome and you are within the same Excommunication And afterwards Owen was found guilty and Judgment of Treason was given against him Mich. 13 Jacobi in the Kings Bench. 364. SIMPSON'S Case RIchard Simpson a Copy-holder in Fee jacens in extremis made a Surrender of his Copyhold habendum to an Enfant in ventrefamier and his heirs and if such Enfant die before his full age or marriage then to John Simpson his brother and his heirs The Enfant is born and dieth within two moneths Upon which John was admitted and a Woman as Heir-general to the Devisor and to the Enfant is also admitted and entreth into the Land against whom John Simpson brought an Action of Trespasse and it was adjudged against the Plaintiffe And two points were resolved in this Case 1. That a Surrender cannot begin at a day to come no more then a Livery as it was adjudged 23 Eliz in this Court in Clarks Case 2. That the Remaindor to John Simpson cannot be good because it was to commence upon a Condition precedent which was never performed And therefore the Surrender into the hands of the Lord was void for the Lord doth not take but as an Instrument to convey the same to another And it was therefore said That if a Copy-holder in Fee doth surrender unto the use of himself and his heirs because that the Limitation of the use is void to him who had it before the Surrender to the Lord is void Trin. 13 Jacobi in the Chancery 365. The Lord GERARD'S Case IT was holden in the Chancery in the Lord Gerards Case against his Copyholds of Aâ—dley in the County of Stafford That where by antient Rolls of Court it appeareth that the Fines of the Copyholds had been uncertain from the time of King Hen. the 3 to the 19 of H. the 6. and from thence to this day had been certain Except twenty or thirty That these few antient Rolls did destroy the Custome for certainty of Fine But if from 19 H. 6. all are certain except a few and so incertain Rolls before the few shall be intended to have escaped and should not destroy the Custome for certain Fines Hill 13 Jacobi in the Common-Pleas 366. BAGNAL and HARVEY'S Case IN a Writ of Partition it was found for the Plaintiffe And a Writ was awarded to the Sheriffe that he should make the partition And the Sheriffe did thereupon allot part of the Lands in severalty and for other part of the Lands the Jurors would not assist him to make the partition All which appeared upon the Retorn of the Sheriffe And an Attachment was prayed against the Jurors who refused to make the Partition and a new Writ was prayed unto the Sheriffe And the Court doubted what to do in the Case whether to grant an Attachment or not and whether a new Writ to the Sheriffe might be awarded And took time to advise upon it and to see Presidents in the Case Hill 13 Iacobi in the Kings Bench. 367. BLANFORD'S Case A Man seised of Lands in Fee devised them unto his Wife for life and afterwards to his two Sons if they had not issue males for their lives and if they had issue males then to their issue males and if they had not issue males then if any of them had issue male to the said issue male The wife died the sons entred into the lands and then the eldest son had issue male who afterwards entred and the younger son entred upon the issue and did trespasse and the issue brought an Action of Trespasse And it was adjudged by the whole Court that the Action was maintainable because by the birth of the issue male the lands were devised out of the two sons and vested in the issue male of the eldest Crook Justice was against the three other Justices Hill 13 Iacobi in the Kings Bench. 368. BROOK and GREGORY'S Case IN a Replevin the Defendant did avow the taking of the Cattle damage feasants And upon issue joyned it was found for the Plaintiffe in the Court at Winsor being a Three-weeks Court And the Defendant brought a Writ of Error and assigned for Error That the Entry of the Plaint in the said Court was the 7. day of May and the Plaintiffe afterwards did Declare there of a taking of the Cattel the 25. day of May. And whether the same was Error being in a Three-weeks Court was the Question and 21 E. 4. 66. was alleadged by Harris that it was no Error But the Court held the same to be Error because no Plaint can be entred but at a Court and this Entry of the Plaint was mesne betwixt the Court dayes and so the Declaration is not warranted no â—ustome being alleadged to maintain such an Entry 2. It was holden by the Court in this Case That 〈…〉 est erratum is pleaded the Defendant cannot alleadge Dimâ—â—â—tion because there is a perfect issue before 3. It was holden That a 〈◊〉 cannot alleadge Diminution of any thing which appeareth in the Râ—â—â—d to be 〈◊〉 And because the Defendant â—id alleadge Diminution 〈◊〉 Case of the Record and by the Record it was certified that the 〈◊〉 was entred the 25 day of May the same was not good after issue joyned and after Judgment is given upon the â—â—â— Record upon the first Dâ—â—â—aration and Pleading in the said Court of Winsor And therefore the Judgment was reversed by the opinion of all the Justices Hill 13 Iacobi in the Kings Bench. 369. BISSE and TYLER'S Case IN an Action of Trover and Conversion of goods the Defendant said That J. S. was possessed of the said goods and sold them unto him in open market
them and held that the Custom might be good Mich. 17 Jacobi in the Kings Bench. 400. IN an Evidence in an Ejectione firme for Land in the Countie of Hartford the Case was this A man was married unto a woman and died The wife after 40 weeks and 10 days was delivered with child of a daughter and whether the said daughter should be heir to her Father or should be bastard was the Question and Sir William Padde Knight and Dr Montford Physitians were commanded by the Court to attend and to deliver their opinions in the Case who being upon their Oaths delivered their opinions That such a child might be a lawfull daughter and heir to her Father For as wellas an Antenatus might be heir viz. a child born at the end of 7 months so they said might a Postnatus viz. child born after the 40 weeks although that 40 weeks be the ordinary time And if it be objected that our Saviour Christ was born at 9 months and five days end who had the perfection of Nature To that it may be answered That that was miraeulum amplias And they held that by many Authorities and by their own Experiences a child might be Legitimate although it be born the last day of the 10â—h Month after the conception of it accounting the Months per Menses solares non Lunares Hill 17 Iacobi in the Kings Bench. 401. WEBB and PATERNOSTERS Case A Man gave Licence unto another to set a Cock of Hay upon his Medow and to remove the same in reasonable time and afterwards he who gave the Licence made a Lease of the Medow to the Defendant who put his Cattel into the Medow which did eat the Hay And for that the Paintiffe brought his Action of Trespass And upon Demurrer joyned the Court was of opinion against the Plaintiffe For upon the whole matter it appeared That the said Hay had stood upon the said ground or Medow for 2 years which the Court held to be an unreasonable time Mich. 18 Iacobi in the Kings Bench. 402. BROWN and PELL's Case IN an Ejectione firme upon a special Verdict found the Case was this Browne had issue two Sons and devised his Lands to his youngest Son and his Heirs And if it shall happen his said youngest Son to die without issue living his eldest Son That then his eldest Son should have the Lands to him and his Heirs in as ample manner as the youngest Son had them The youngest Son suffered a Common Recovery and died without issue living the eldest Son The Question was whether the eldest Son or the Recoverer should have the â—ands Montague Haughton and Chamberlain Justices The same is a Fee-simple Conditional and no Estate Tail in the youngest Son Doddridge Justice contrarie Mich. 18. Jacobi in the Kings Bench. 403. POLLYES Case IN an Action of Trespass It was agreed by the Court If 2 Tenants in Common be of Lands upon which Trees are growing and one of them felleth the Trees and layeth them upon his Freehold If the other entreth into the â—and and carrieth them away an Action of Trespasse Quaere clausum fregit lyeth against him because the taking away of the Trees by the first was not wrongfull but that which he might well do by Law And yet the other Tenant in Common might have seized them before they were carried off from the Land But if a man do wrongfully take my Goods as a Horse c. and putteth the same upon his Land I may enter into his Land and seize my Horse again But if he put the Goods into his House in such Case I cannot enter into his House and retake my Goods because every mans House is his Castle into which another man may not enter without special Liâ—ence Hill 19 Iacobi in the Kings Bench. 404. THe Case was That two Tenants in Common of Lands made a Lease thereof for years rendring Rent and then one of them died And the Question was who should have the Rent And if the Executor of him who died and the other might joyn in an Action for the Rent And as this Case was The opinion of the whole Court was That the Executor and the other might joyn in one Action for the Rent or sever in Action at their pleasures But if the Lease had been made for life rendring Rent The Court was cleer of opinion that they ought to sever in Actions Trin. 20 Jacobi in the Kings Bench. 405. A Man was bounden in a Bond by the name of Edmond and his true name was Edward And an Action of Debt was brought against the Executors of Edmond upon the said Bond who demanded Oyer of the Bond and then pleaded that it was not the Deed of their Testator and issue being thereupon joyned It was found by Inquest in London to be his Deed viz. the Deed of Edmond And it was moved in Arrest of Judgment Quod querens nihil caperet per Billam and so it was resolved and adjudged by the Court Doddridge only being absent And a Case was vouched by Henage Finch Recorder of London to prove this case That it was so adjudged in a Case of Writ of ErError brought in the Exchequer-Chamber in which Case the party himself upon such a Misnosmer and after a Verdict and Judgment given in the same Case did reverse the Judgment for this Error Mich. 14 Iacobi in the Kings Bench. 406. VESEY's Case VVIlliam Vesey was indicted for erecting of a Dove-house And Serjeant Harvey moved That the Indictment was insufficient the words were That the Defendant erexit Columbare vi armis ad commune nocumentum c. and that he was not Dominus Manerii nes Rector Ecclesiae And the Indictment was quashed because it was not contained in the Indictment that there were Doves in the Dove-cote For the meer erecting of a Dove-cote if there be no Doves kept in it it is no Nusans as it was holden by the Justices Mich. 15 Iacobi in the Kings Bench. 407 Sir WILLIAM BRONKER's Case SIR William Bronker brought an Action upon the Case for slanderous words And he shewed in his Declaration how that he was a Knight and one of the Gentlemen of His Majesties Privy-Chamber And that the Defendant spake of him these scandalous words viz. Sir William Bronker is a Cosening Knave and lives by Cosenage Which was found for the Plaintiffe In arrest of Judgment it was moved that the words were not actionable And so it was adjudged per Curiam Pasch 21 Iacobi in the Kings Bench. 408. YATE and ALEXANDER's Case YAte brought an action upon the Case against Alexander Attorney of the Kings Bench and declared That the Plaintiffe in an action of Debt brought against Alexander the Defendant who was Executor to his Father had Judgment to recover against him as Executor and that he sued forth a Fieri facias to the Sheriffe to have Execution and that before the Sheriffe could come to levy the debt and serve the
disseised and the Disseisor levieth a Fine with proclamations and five years passe and afterwards Tenant in tail dyeth there the issue in tail is barred for there after the Fine levied the Tenant in tail himself had right so as the issue in tail was not the first to whom the Right did accrue after the Fine levied C. 3. part 87. Com. 374. a. When Ralph Bigot made the Feoffment 6 H. 8. Francis Bigot had a Right by his own Feoffment 21 H. 8. his Right was extinguished The second Objection was upon the Form of pleading in a Formedon viz. Post cujus mortem discendere debet to him viz. the issue Then the Ancestor had such a Right which after his death might have discended to his issue Then that proveth that the Ancestor by his Feoffment hath not given away all the Right I answer The form is not Post cujus mortem but Per cujus mortem and the Post cujus mortem discendere debet is not traversable and therefore it is but matterof form and not of substance Old Entres 240. One dum non fuit compos mentis maketh a Feoffment he shall not avoid the Feoffment because that the Law doth not allow a man to stultifie himself C. 4. part 123. But his heir after his death may avoid the Feoffment of his Ancestor for de ipso discendit jus although the Father had not a Right in his life It was thirdly objected out of C. 4. part 166. b. where it is said That if an Ideot maketh a Feoffment the King shall avoid the same after Office found I answer That the Book it self doth cleer the objection For it is in regard of the Statute of Prerogativa Regis cap. 9. Ita quod nullatenus per eosdem fatuos alienentur c. and not in respect of any Right which the party hath who maketh the Feoffment By the Common Law Tenant in tail viz. He who had a Fee-simple conditional had not any right after his Feoffment Then the Act of West 2 cap. 1. makes such a Fee an Estate in tail and provides for the issue in tail for him in the Remaindor or in Reversion but not for the party who made the Feoffment or Grant for a Grant of Tenant in tail is not void as to himself Magdalen-Colledge Case A Lease by a Parson is good against himself but voidable against his Successor And so the same is no Exception Discendit jus post mortem c. The fourth Objection was That although Tenant in tail had made a Feoffment yet he remained Tenant to the Avowry of the Donor and therfore some right of the old estate tail did remain in him I answer 5 E. 4. 3 a. 48 E. 3. 8. b. 20 H. 6. 9. 14 H. 4. 38. b. C. 2. part 30. a. The matter of the Avowry doth not arise out of the Right or Interest which a man hath in the Land but out of the Privity As when the Tenant maketh a Feoffment he hath neither right nor interest in the Land yet the Lord is not compellable to avow upon the Alienee before notice In a Precipe quod reddat the Tenant alieneth yet he remaineth Tenant as to the Plaintiffe and yet he hath not either a Right or any Estate as to the Alienee The fifth Objection was upon the Statute of 1 R. 3. cap. 1. All Feoffments c. by Cestuy que use shall be effectual to him to whom it was made against the Feoffor and his heirs I answer The words of the Statute are to be considered All Feoffments c I desire to know how this affirmative Law doth take away the power of the Feoffees And the Feoffees are bound by the Feoffment of Cestuy que use and are seised to the use of such Alienees 27 H. 8. 23. b. by Fitzherbert If Cestuy que use enter and maketh a Feoffment with warrantie c. but there are not words that the old rights are given away The Feoffees to use before the Statute of 1 R. 3. c. 1. might only make Feoffments but after that Statute Cestuy que use might also make Feoffments of the Lands And so the Statute of 1 R. 3. did not take away the power of the Feoffees for they yet may make Feoffments but it did enlarge the power of Cestuy que use Com. 351 â—52 Then the Question further riseth If Francis Bigot had any Right in the Tail which might be forfeited by the Statutes by 26 H. 8. and 31 H. 8. A particular Act made for the Attaindor of the said Francis Bigot From the time of West 2. cap. 1â— untill the Statute of 26 H. 8. cap. 13. there were many Bills preferred in Parliament to make Lands which were entailed to be forfeited for high Treason but as long as such Bils were unmasked they were still rejected But Anno 26 H. 8. then at a Parliament a Bill was preferred That all Inheritances might be forfeited for Treason so that as under a vail lands in tail were forfeited for Treason which was accepted of The Statutes of 26 H. 8. 31 H. 8. are not to be taken or extended beyond the words of the Statute which are That every Offender hereafter lawfully convict of any manner of high Treason by Presentment confession Verdict or Process of Outlawry shall forfeit c. It doth not appear that Francis Bigot was attainted in any of these wayes For the Inquisition is That he was Indicted and convicted but Non sequitur that he was convict by any of those wayes viz. Verdict Confession or Outlawry And one may be attainted by other means 4 E. 4. in Placito Parliamenti Mortimer was attainted by Parliament 1 R. 2. Alice Percy was attainted by Judgment of the Lords and Peers of the House of Lords in Parliament It was objected That after an Indictment Verdict ought to follow I answer Non sequitur for it may be without Verdict viz. by standing mute And then the Statute of 26 H. 8. doth not extend unto it C. 3. part 10 11. Admit it were an Attaindor within the Statute of 2â— H. 8. yet Francis Bigot had not such lands which might be forfeited C. 3. part 10. For this Statute doth not extend to Conditions or Rights And C. 7. part 34. this Act of 26 H. 8. doth not extend to Rights and Titles And it is cleer that Francis Bigot had not any Estate within the letter of the Act. It was objected That if we have not set forth the full Title of the King in the Monstrans de Droit then is the Monstrans de Droit naught and void I answer 9 E. 4. 51. 16 E. 4. 6. I find no book that in a Monstrans de Droit we should be put to observe that Rule For a Petition were a going about The Statute of 2 E. 6. cap. 6. gives the Monstrans de Droit 16 E. 4. 7. If a Petition be void for want of instructing the King and if all his Title be not set forth in it
then the Court is to abate the Petition but after Judgment to find such a fault he must have a Scire facias and not a new Petition and in our Case there was none who gave in such matter for the King Now I come to the Statute of 31. H. 8. The particular Act for the Attainder of Francis Bigot and that he should forfeit all such Lands c. Conditions Rights c. in Fee and Fee tail saving c. and as the lands of Francis Bigott stood stated at the time of the making of this Act of 3. H. 8. the Statute did not extend to him to make him forfeit any thing In the Statute of 33. H. 8. Cap. 20. there were as many words as in this Statute of 31. H. 8. and many Cases upon the Statute of 33. H. 8. are adjudged upon the words shall lose and forfeit There is a difference betwixt an Act of Assurance and an Act of Forfeiture If the words be That the King shall enjoy and have it is then an Act of Assurance and the lands are given to the King without Office but by an Act of Forfeiture the Lands are not in the King without Office found Exceptio firmat regulam but our Case is out of the Rule Savings in Acts of Parliaments were but of late days 1. E. 4. there was a private Act A Petition was preferred against divers in Parliament for sundry misdemeanours and it was Enacted that they should forfeit unto the King and his heirs c. in that Act there was no exception of saving for it was but a forfeiture of their Rights and Savings were but of late times Trin. 8. H. 8. Rot. 4. A Petition of Right in the Chancery upon that was a plea which was after the Attainder of the Duke of Suffolk That the Duke did disseise him it was shewed that the Attainder was by Parliament and he shewed no saving to be in the Statute in the Petition and yet it was well enough Com. 552. Wyat Tenant in tail of the Gift of the King made a Feoffment and by Act of Parliament 2 Mariae was attainted of Treason by which he was to forfeit c. as in our Case I answer That within two years after that Judgment upon solemn argument it was adjudged contrarie Com. 562. It was objected that in that Case a Writ of Error was brought Com. 562. and that the Judgement was affirmed in the Case of Walsingham I answer that the same was by reason of the Plea in Barr And Com 565. there Plowden confesseth that the Judges were not agreed of the matter in Law and the Lands in question in Walsingams Case do remain with Moulton and at this day are enjoy'd contrary to the Judgment given in Walsinghams Case It was objected That although this Act of 31. H. 8. was made after the Attainder yet that it should relate to all the Lands which Francis Bigot had at the time of the Treason committed I answer That this Act of 31. H. 8 is but a description what Lands he shall forfeit viz. all the Lands which he had at the time of the Treason committed The second Point is upon the Remitter of Roger Ratcliff before the Inquisition for there was a discent to Roger Ratcliff When Tenant in Tail is attainted of Treason his blood is not corrupted C. 9. part 10. Lumleys Case And the Statute of 33. H. 8. is the first Statute which vests Lands forfeit for Treason in the King without Office found So as according to the Lord Lumley's Case C. 3. part 10. before this Statute of 33 H. 8. the Land did discend to the issue in tail The Rule of Nullum tempus occurrit Regi is to be meant for the preserving of the Kings Right but not to make the King to do wrong Com. 488. there the Remitter is preferred before the King 49. E. 3. 16. there the Devise of a Common person was preferred before the Right of the King 3. H. 7. 2. the Lord Greistock's Case The Dean of York did recover against him and before Execution the Lord died his heir within age the Dean shall have his Execution notwithstanding that the King hath right to have the Ward A fortiori a Remitter shall be preferred before the Kings Title C. 7. part 28. The Rule Nullum tempus occurrit Regi is to be intended when the King hath an Estate or Interest certain and permanent and not when his Interest is specially limited when and how he shall take it and not otherwise The third Point was Whether Ratcliff hath brought his proper Action The words of the Act of 2 E. 6. cap. 8. which giveth the Monstrans de Droit are to be considered A Remitter is within the words of the Act. Divers Errors were assigned by the other side for matter of Form 1. Because the Venire facias want these words tam milites quam alios Sheffield being a Noble man and a Peer of the Realm It appeareth by the Register 7. that the same was the ancient Form in every common persons Case but of late that Form was left 2. Admit that it were a good Exception then it ought to have been taken by way of Challenge as it appeareth 13. E. 3. Challenge 115. Dyer 107. 208. 3. The Statute of 35. H. 8. Cap. 6. makes a new Law and prescribes a Form Precipimus c. quod Venire facias coram c. 12 Liberos Legales homines c. and then if it ought to be by the Register tam milites quam alios yet here is a new Statute against it And by the Statute of 2. E. 6. Cap. 32. this Statute of 35 H. 8. is made perpetual And by the Statute of 27. Eliz. Cap. 6. the Statute of 35. H. 8. is altered in parvo and augmented in the worth of the Jurors and by the Statute of 18. Eliz. Cap. 14. It is Enacted That after Verdict c. the Judgment thereupon shall not be stayed or reversed by reason of any default in Form or lack of Form or variance from the Register The second Error assigned was because that there are two Venire facias and two Distringas after that Issue was joyned The Lord Sheffield sueth unto the King to have the first Venire facias and first Distringas quashed and it was quashed with Ratcliff's consent Secondly admit there were two Venire facias yet it ought to be intended that the proceedings was but upon one of them and that the best M. 17. Jacobi in the Common Pleas Bowen and Jones's Case In Error upon a Recovery in Debt there were two Originals certified and there the one was good and the other naught the Judges did take it that the Judgment and proceedings were upon the good Original and the Judgment was affirmed in the Kings Bench M. 15 H. 8. Rott 20. the same Case Two Originals one bearing date after the Judgment the other before the Judgment and upon a Writ of Error brought the
the possession is bound by the Judgment of Attaindor and the Act of Parliament 5 H. 7. 31. 7 H. 7. 15. 16 H. 7. 8. A discent of land shall not make a title against the King or any other who hath the land by an Act of Parliament But then in our Case If there should be a Remitter yet the same is overreached by the Office 〈◊〉 part 10. before the Statute of 33 H. 8. cap. 20. there ought to have been an Office found in the Case of Attaindor of Treason Br. Cases 103. Brook Office Devant c. 17. I do not mean an Office of intitling but an Office declaratory of a conspicuous title C. 5. part 52. There are two manner of Offices One which vesteth the estate and possession of the land c. in the King Another which is an Office of Instruction and that is when the estate of the land is lawfully in the King but the particularity thereof doth not appear upon record And the Office of Instruction shall relate to the time of the Attaindor not to make Queen Elizabeth in our Case in by discent but to avoid all meâ—ne Incombrances And is not this Remitter an Incombrance And for that purpose the Office shall relate For in things of Continuance Nullum tempus occurrit Regi C. 7. part 28. For so the rule of Nullum tempus c. is to be understood of a thing of Continuance and not a thing unica vice v. Fitz. Entre Congeable 53. Trav. 40. where it is said Where the King hath cause to seise for the forfeiture of Tenant for life if the Tenant for life dyeth the Reversion may enter for in that case Tempus occurrit Regi and the King cannot seize after the death of the Tenant for life 35 H. 6. 57. There is no discent against the King and if there be no discent then there is no Remitter The consequence of all this is That the Office doth relate to the Right And that the Monstrans de Droit doth not lie And the want of Office found for all this time was the fault of the Kings Officers and shall not prejudice the King But if the Office should not relate then the Monstrans de Droit would lie because then the King was in but by one single matter of Record We shew in the Office 33 Eliz. That there issued forth a Commission directed to certain of the Privy-Councel to enquire of the Treason and if Francis Bigot upon the Treason were Indicted And in our Case we shew immediately another Commission was directed to the Lord Chancellor and the two Chief Justices c. to arraign Francis Bigot And all that is confessed by Ratcliffe himself viz. modo forma And therefore the Objection which Glanvile made was frivolous viz. That it did not appear that Francis Bigot was attainted by Verdict by Confession or by Outlawry And so he concluded That for these causes the Judgment given in the Court of Common-Pleas ought to be reversed George Crook argued for Ratcliffe and he prayed that the Judgment might be affirmed I will argue only these points following 1. That Francis Bigot had not so much as a right of Action at the time of his Attaindor for he had not any right at all 2. Admit that he had a right of Action If this right of Action be given to the King by the said Statutes of 26 31 H. 8. It was objected That the right being clothed with a possession that the same is given to the King But I will prove the contrary 3. When Francis Bigot being Tenant in tail and being attainted and executed for Treason and then Katherine his wife dyeth being one of the Donees in tail 21 H. 8. and the lands discend to Ratcliff If the Office afterwards found shall relate to take away the Remitter I say it doth not but that his Remitter doth remain to maintain his Monstrans de Droit and he is not put to his Petition The chief point is What right Francis Bigot had at the time of his Attaindor 1. When Ralph Bigot being Tenant in tail 6 H. 8. made a Feoffment in Fee what right remained in Francis his Son The right is in abeyance viz. in nubibus that is in custodia Legis And then Francis Bigot had no right of that entail 21 H. 8. when he made the Feoffment Com. 487. There Jus is divided viz. Jus recuperandi Jus in randi Jus habendi Jus retinendi Jus percipiendi Jus possedendi but here Francis Bigot had not any of these rights Com. 374. if the Discontinuee of Tenant in tail levieth a Fine with proclamations and five years passe and Tenant in tail dyeth the issue in tail shall have other five years because he is the first to the right 19 H. 8. 7. C. 7. part 81. If Donee in tail maketh a Feoffment in Fee in rei veritate the Donee hath not jus in re neque ad rem C. 3. part 29. Litt. 649. There it appeareth that the right to an estate tail may be in abeyance Com. 552. Walsinghams Case There the King gave land in tail to Wyat who made a Feoffment unto Walsingham Afterwards Wyat was attainted of Treason and there the estate tail of Wyat was forfeited but the cause there was because that the reversion was in the Crown and so no discontinuance by his Feoffment because that the reversion was in the Crown In our Case no right of the estate tail was in Francis Bigot after the Feoffment unto his own use but the right is in abeyance It was objected That the Writ of Formedon is Discendit jus and the Monstrans de Droit was so I answer It is so in point of form in the Writ but not in substance C. 7. part 14. Tenant in tail makes a Lease for life and Tenant for life dyeth Now he hath an ancient right and the Donor may avow upon the Tenant in tail notwithstanding his Feoffment but that is by reason of privity and not by reason of any right he hath Jus recuperandi did discend to the issue in tail viz. Francis Bigot 21 H. 8. He who hath a right of Action giveth the same away by his Livery and Feoffment as appeareth by the Cases put in C. 1. part 111. It was objected That Cestuy que use was an Attorney or Servant therefore he doth not passe his own right for he cannot make an Attorney to make Livery and 9 H. 7. 26. was cited to be adjudged so But it is adjudged to the contrary M. 25 H. 8. in the Kings Bench rot 71. betwixt the Bishop of London and Kellet as it appeareth in Dyer 283. and Bendloe's Reports and C. 9. part 75. For there it is expresse that Cestuy que use may make a Letter of Attorney to make Livery which proves that he makes not the Feoffment as a Servant but as Owner of the Land It was objected That Cuesty que use was as an Executor but that I deny 49
Cestuy que use when he entreth and maketh a Lease he hath no reversion nor shall punish waste And as it is in the Creation so is it in the Continuance 4 H. 7. 18. If Cestuy que use for life or in tail maketh a Lease for life it is warranted during his own life by the Statute of 1 R. 3. but if Tenant for life at the Common Law maketh a Feoffment or a lease for life there the first Lessor ought to avoid this forfeiture by entrie and it is not void by the death of the second Lessor viz. the Tenant for life 27 H. 8. 23. A Feme Covers is Cestuy que use the husband maketh a Feoffment and dieth the Feoffment is void by his death Br. Feoffments to Uses 48. If Cestuy que use for life levieth a fine it is no forfeiture but good by the Statute of 1 R. 3. during his own life And if in such case Proclamations pass there needeth no claim nor entrie within five years but the Law is contrarie of Tenant for life by the Common Law for if Tenant for life at the Common Law levieth a fine it is a forfeiture Dyer 57. Cestuy que use for life or in tail maketh a Lease for life the Lease is determined by the death of Cestuy que use and the Lessee is become Tenant at sufferance but a Lease for life by Tenant for life at the Common Law is not determined by the death of Lessee for life who was Lessor and his Tenant is tenant for life and not at sufferance as in the Case before and the first Lessor ought to avoid it by entrie Br. Feoffments to Uses 48. A Recovery by Cestuy que use in tail or in fee is ended by his death By these Cases appears a main difference betwixt the validitie of a Feoffment by Cestuy que use and the Feoffment at the Common Law The Statute of 27 H. 8. of Uses doth not execute Uses which are in abeyance C. 1. part Chudleigh's Case 9 H. 6. by the Common Law the Devise to an Enfant in ventre samier is good but by the Statutes of 32 and 34 H. 8. of Wills such a Devise is not good for the Statute Law doth not provide for the putting of lands in abeyance By the Statute of 1 R. 3. All Feoffments and Releases c. shall be good and effectual to those to whom they are made to their uses And this Feoffment in our Case was not made to a man in Nubibus Cestuy que use by this Statute of 1 R. 3. makes a lease for years the remainder over to the right heirs of I. S. the remainder is not good for the Statute doth not put it in abeyance for the remainder ought to be limited to one in esse 21 H. 8. cap. 4. giveth power to Executors to sell that Executor who proveth the Will shall sell and when he selleth if he have any right to the land the right of the said Executor is not gone by that Statute So if Commissioners upon the Statute of Bankrupts sell the Lands of the Bankrupt and one of the Commissioners hath right to the land so sold his right is not extinct And so in this Case the Statute limits what shall pass Upon the Statute of â—3 Eliz. cap. 4. which makes the lands of Receivers liable for their debts if the King selleth the right of the Accomptant passeth but not the Kings right 17 E. 3. 60. An Abbot having occasion to go beyond the Seas made another Abbot his Procurator to present to such Benefices which became void in his absence That Abbot presents in the name of him who made him Procurator to one of his own Advowsons the right of his own Advowson doth not pass but yet it is an usurpation of the Abbot which went beyond sea to that Church What is the nature of this right All rights are not giâ—en away by Feoffments at the Common Law Lit. 672. Land is given unto husband and wife in tail the husband maketh a Feoffment and takes back an Estate to him and his wife both of them are remitted Which Case proveth that the husband hath left in himself a right notwithstanding the Feoffment 41 E. 3. 17. 41 Ass 1. John at Lee's Case So at the Common Law a Feoffment doth not give away all the right This right doth stick so fast in the issue as the Statute of West 2. cap. 1. can back it unto him 2 E. 3. 23. 22 E. 3. 18. At the Common Law if Tenant in tail had offered to levie a fine the Judges ought not to receive it but ought to have refused it if it had appeared unto them that the Conusor was Tenant in tail the same was before the Statute of 4 H. 7. which gave power to Tenant in tail to levie a fine for the Statute of West 2. Cap. 1. saies Quod finis sit nullus 2. E. 2. age 77. 2 E. 3. 33. 3 E. 3. 1. 24 E 3. 25. If Donee in tail levieâ—h a Fine yet there is no remedie against his Tenant for he shall not be compelled to attorn for that the right is in the Donor â— E. 2. Avowry 181. 48 E. 3. 8. Avowry was made upon the Donee in tail notwithstanding that he made a Feoffment and Avowry is in the realtie and right 4 E. 3. 4. 4 H. 6. 28. 10 H. 7. 14. In a Replevin ancient Demesne is a good plea because the Avowry is in the realtie The Donor shall know for homage upon the Donee after that the Donee hath made a Feoffment 7 E. 4. 28. the Donee shall do homage And Litt. 90. saith That none shall do homage but such as is seised in his own right or in the right of another 2 E. 2. Avowry 85. 7 E 54. 28. 15 E. 4. 15 Gard. 116. the issue shall be in Ward notwithstanding a Feoffment by Tenant in tail Com. 561. Tenant in tail maketh a Feoffment yet the right of the tail doth remain in the Tenant in tail 21 H. 7. 40. Tenant in tail of a Rent grants the same in Fee if an Ancestor collateral releaseth with Warranty the same bindeth the Tenant in tail There is a common Rule That a Warranty doth not bind when a man hath not a right The Cases cited in C. 1. part Albonies Case where Feoffments give Rights I agree Barton and Ewers Case A man made a Feoffment of Land of which he had cause to have a Writ of Error he gave away his Writ of Error by the Feoffment I agree all those Cases for that is in Cases of Feoffments at the Common Law but in our Case the Feoffment is by the Statute of 1 R. 3. In our Case there is Jus habendi possedendi recuperandi It is like unto a plant in Winter which seemeth to be dead yet there is in it anima vegitativa which in due time brings forth fruit So the right in our Case is not given away nor is it in abeyance
be quashed and exonerated and discharged in the possession of the King For it is out of the Rule which is in C. 10 part 48 for the cause of quieting and repose of the Terre-Tenants otherwise it would be a cause of Suits But all Rights Tythes Actions c. might for the same reasons viz. for the quiet of the Terre-Tenants and the avoidance of Suits and Controversies be released to the Terre-Tennants By the same reason here the right of Action of Francis Bigot shall be discharged and exonerated by this forfeiture viz. for the quiet and repose of the Terre-Tenants for the Law delights in the quiet and repose of the Terre-Tenants If Francis Bigot had granted a Rent the ancient right of the tail had been charged C. 7. part 14. Where Tenant in tail makes a lease for life and grants a Rent charge and Tenant for life dieth he shall not avoid his charge although he be in of another Estate because he had a defeisible possession and an ancient right the which c. so as they could not be severed by way of conveyance and charge and no lawfull act Then I admire how he will sever this from himself by his unlawfull act viz. the Feoffment the discontinuance Lit. 169. If a man commit Treason he shall forfeit the Dower of his wife yet he doth not give the dower of his wife but it goes by way of discharge in those Lands 13 H. 7. 17. Tenant by the Curtesie in the life of his wife cannot grant his Estate of Tenant by the Curtesie to another but yet he for Felony or Treason may forfeit it viz. by way of discharge A Keeper of a Park commits Treason there the King shall not have the Office of Keeper for a forfeiture because it is an Office of trust but if he had been Keeper of the Kings Park and had been attainted there he should forfeit his Office by way of discharge and exoneration This Statute of 26 H. 8. hath been adjudged to make Land to revert and not strictly to forfeit Austin's Case cited in Walsingham's Case Tenant in tail the reversion in the King the Tenant makes a Lease for years and dies the issue accepts of the Rent and commits Treason the Lease is avoided for the King is not in by forfeiture by the Statute of 26 H. 8. but by way of Reveter by the Statute of 26 H. 8. It was objected that if Tenant in tail maketh a Feoffment and takes back an Estate for life and is attainted of Treason that he shall not forfeit his old right I agree that Case For indeed it is out of the Statute of 26 H. 8. which speaks of Inheritance and in that Case the Tenant hath but a Freehold The Statute of 26 H 8. saith that it shall be forfeited to the King his heirs and Successors And if in our Case the old right should remain then it should be a forfeiture but during the life of the Testator When the Common Law or Statute Law giveth Lands it gives the means to keep them as the Evidences So here the King is to have by force of this Statute of 26 H. 8. the Evidences The forfeiture of right is expresly within the Statute of 26 H. 8. as the forfeiture of Estate as by any right title or means for the old Estate tail is the means of Estates since 6 H. 8. And if you will take away the Foundation the Building will fall For all the Estates are drawn out of the old Estate tail The Statute of 26 H. 8. is not an Act of Attaindor for none in particular is attainted by the Act but the Act of 31 H. 8. doth attaint Francis Bigoâ— in particular It was objected that here in this case there needed not to be any express Saving I answer that there are divers Statutes of Forfeitures yet the Statutes have Savings in them so as it seems a saving in such Acts were not superfluous but necessary The Act of 33 H. 8. for the attainder of Queen Katharine there is a saving in the Act and yet an Act of Forfeiture Dyer 100. there the land vested in him in the Remainder by force of a saving in the Act so the saving is not void but operative C. 3. part Dowlies Case vid. the Earl of Arundels Case there the saving did help the wife so it appears savings are in Acts of Parliaments of Forfeiture and Acts of Attaindor Dyer 288 289. The Bishop of Durham had Jura Regalia within his Diocese and then the Statute of 26 H. 8. came now whether the Forfeiture for Treason should be taken away from the Bishop by reason of that Statute and given to the King was the doubt It was holden that of new Treasons the Bishop should not have the Forfeitures for those were not at the Common Law as the Forfeitures of Tenant in tail but that he should have the Forfeitures of Lands in Fee within his Diocese and that he had by force of the saving in the Statute so that a Saving is necessary and operative Com. Nichols's Case there Harpers opinion that there needs no saving to strangers but yet a saving is necessary for the Partie and the Issue if they have any thing as well as strangers vid. C. 3. part Lincoln Colledg Case It is the Office of a good Interpreter to make all the parts of a Statute to stand together Com. 559. By these general words Lose and Forfeit and by excluding of the heir in the saving the heir is bound So the Judges have made use of a Saving for it is operative 2 Ma. Austin's Case cited in Walsinghams Case Tenant in tail the Reversion in the Crown Tenant in tail made a Lease for years and levied a Fine to the King the King shall not avoid the Lease for the King came in in the Reverter but in such Case if he be attainted of Treason then the King shall avoid the Lease So a Statute of Forfeiture is stronger then a Statute of Conveyance By this Statute of 26 H. 8. Church Land was forfeited for so I find in the Statute of Monasteries which excepts such Church Lands to be forfeited for Treason Dyer Cardinal Poole being attained did forfeit his Deanary and yet he was not seised thereof in jure suo proprio for it was jus Ecclesiae 27 E. 3. 89. A writ of Right of Advowson by a Dean and he counteth that it is Jus Ecclesiae and exception that it is not Jus suae Ecclesiae But the Exception was disallowed for the Jus is not in his natural capacitie but in his politique capacitie and yet by this Statute of 26 H. 8. such Church Land was forfeited for Treason this is a stronger Case then our Case Vide C. 9. part Beaumont's Case Land is given to husband and wife in tail and the husband is attainted of Treason the wife is then Tenant in tail yet the Land is forfeited against the issue although it be but a possibility for the whole estate
they devise the assurance for her jointure 2. Heer is no place named where the Notice was for it is issuable whether he gave Notice or not and then there being no certain place named no visne can be upon it 3. He doth not shew where the Lands are for it might be as in truth it was the Lands were out of England and by the Covenant they ought to be within England 4. He doth not shew that the Lands were of the value of 500l per annum over and above all Reprises as they ought to be by the Articles 5. He sheweth that they were his Freehold but doth not shew that the lands were his lands of Inheritance of which a Jointure might be made The opinion of the whole Court was that the Exceptions were good and that the Plea in bar was no good plea. Dodderidge If the word had been Such as his Councel shall devise then the Notice ought to have been given to the party himself and he is to inform his Councel of it 6 H. 7. 8. But here two Councellors were named in certain and therefore the Notice ought to be given to them for he hath appointed Councellors The whole Plea in bar is naught For if he hath an estate in tail then there ought to be a Fine in making of the Jointure and if there be a Remainder upon it then there ought to be a Recovery So because that Lane hath not informed the party what estate he had in the lands they could not make the Assurance Ley Chief Justice Where a man is bound to make such Assurance of lands as J. S. shall advise here he need not shew his Evidences but he ought to shew to the party what the land is and where it lieth and the Obligee is to seek out the estate at his peril And then J. S. may advise the Assurance conditionally viz. That if he hath Fee then to have such an assurance and if an Estate in tail then such an assurance and if there be a Remainder over then to devise a Recovery Curia All the Errors are material The Bail for Lane before any Judgment given against him brought Lane into Court and prayed that they might be discharged and Lane taken into custody Dodderidge Justice said There is a difference betwixt Manucaptors which are that the party shall appear at the day for there the Court will not excuse them to bring the party in Court before the day But in case of Bail there they may discharge themselves if they bring the body of the Defendant into Court at any time before the Retorn of the 2. Scire facias against the Defendant For when one goeth upon Bail it is intended that he notwithstanding that is in â—â—stodia Mariscalli For the Declarations are in custodia Mariscalli Marschalsiae Quod hota so is the difference Trin. 21 Jacobi in the Kings Bench. 434. WHEELER and APPLETON'S Case AN Action upon the Case was brought for these scandalous words viz. Thou hast stollen my Peece and I will charge thee with suspition of Felony Which were found for the Plaintiffe It was moved for the staying of Judgment That the Action was not maintainable For the Declaration is A Peece innuendo a Gun And here the innuendo doth not do its part for it might be a peece of an Oak or a 225. peece of Gold which is commonly called a Peece and in this Case the words may be intended such a Peece 17. Jacobi in the Kings Bench betwixt Palmer and Râ—ve Thou hast the Pox and one may turn his finger in the holes of his legs Adjudged that for these words the Action would lie because it cannot be meant otherwise then of the French pox 41 Eliz. in the Kings Bench the Defendant said of the Plaintiffe Thou art forsworn and thou hast hanged an honester man then thy self the Action did lie For the first words Thou art forsworn no Action will lie C. 4. part 15. but the later words prove that it was in course of Justice and that he was perjured So in this Case admitting that the first words will not bear an action yet the later words make them actionable For the first words ought to be meant of a thing which is Felony Heck's Case C. 4. part 15. there it was adjudged for the Plaintiffe although the first words would not bear action yet the later words make them actionable I will charge thee with suspition or flat Felony an Action doth not lie Hecks Case proves it Another Councellor argued that the Action would not lie The first words are not actionable For so many things as there are in the world so many peeces there may be and here it might be a peece of a thing which could not be Felony Betwixt Roberts and Hill 3 Jacobi in the Kings Bench it was adjudged Roberts hath stollen my wood the words were not actionable for it might be wood standing and then to cut and take it away it is not Felony but Trespass Ley Chief Justice I charge thee with flat Felony If the words be spoken privately to a man no Action lieth for them but if they be spoken before an Officer as a Constable or in a Court which hath conusance of such Pleas then the Action will lie for the party by reason of such words may come into trouble But if a man charge one with flat Felony and chargeth the Constable with him then an Action will not lie because it is in the ordinary course of Justice C. 4. part 14. If a man maketh a Bargain with another to pay him twenty Peeces for such a thing it shall be taken by common intendment twenty 22s. peeces of gold which vulgarly are called Peeces But to endite a man for 20 Peeces is not certain and therefore such Indictment is not good and the Action in our Case will not lie for my Peece is an incertain word Dodderidge Thou hast stollen my Peece What is that For we call 22s. in gold a Peece You ought to tell it in certain And here the innuendo will not make the scandal but the words of scandal ought to proceed out of the parties own mouth and an Innuendo cannot make that certain which was uncertain in the words of the speaker And therefore the Action here will not lie Haughton Justice If the whole matter had been set forth in the Declaration as to have shewed that the parties before this speech had had speeches of a Gun then the Action in this case would have been maintainable but here the word Peece is incertain and the Action will not lie Chamberlain Justice If the speeches had been concerning a Gun lost then upon these words spoken the Action would have lien but not as they are here spoken For the two words there ought to have been matter subsequent as upon the charging with Felony to have delivered him to an Officer And so by the whole Court it was adjudged Quod querens nihil capiat per
by prescription have used to have and dig clay there The first point is found for the Defendant and the last issue is found against the Defendant and damages are given generally All the question is upon the Declaration Coepit asportavit the clay which implies a propertie and interest in the clay to be to the Plaintiffe It is not said that the clay was carried over the land I conceive that the property of the clay is in issue and the Commoner hath nothing to do with that So damages being given to him for that which doth not belong unto him I hold the Judgment to be Erroneous and that it ought to be reversed Dodderidge The Declaration is well enough and of necessity it cannot be otherwise Here the Plaintiffe challengeth nothing but Common In an Action upon the Case there ought to be injurie and damage which is the consequent upon injurie For an Action upon the Case will not lie for an injurie without damage Here Bullen doth not complain for any thing but the loss of his Common which is the first wrong The second wrong is the digging of the pit in the which his cattel may fall and perish The third wrong is for carrying away of six loads of clay over the Common which is a great detriment to the Common to carrie it either by Carts or otherwise and for these three wrongs he concludes his damages ratione cujus he could not have his Common in as ample manner as before he was used to have it and he doth not conclude any damage for the clay Every one of these injuries doth increase the damages and so it would have been if he had left the clay to lie upon the land by the pit for thereby so much Common would have been lost Here he makes himself title only to the Common and these Acts do increase the damages only 2. E. 4. 7 E. 4. Where one was unlawfully and falsly imprisoned and being imprisoned compelled to levie a Fine or make a Feoffment or other Deed. In an Action of false Imprisonment the Jurie gave damages by reason of his restraint of his Liberty and increased them by reason of the levying of the Fine or making the Feoffment or other Deed which he then made The Jurie found that he is not to have any clay and coepit asportavit doth not alter the Case for that is a special Action of trespass And by three of the Justices against Haughton the Judgment given in the Court of Common Pleas was affirmed Trin. 21 Iacobi in the Kings Bench. 438. CAlthrope Councellor cited this Case to have been adjudged 25 Eliz. The husband seised in the right of his wife of Copyhold Land made a Lease for years and it was holden by the Court then That by the death of the husband the forfeiture of the Copyhold was purged and that the wife should have the land again notwithstanding this forfeiture by the husband by making a Lease for years without Licence And the Court seemed to allow of the said Case to be Law And afterwards this very Term the like Case came in question in this Court betwixt Severn and Smith where in an Ejectione firme a special Verdict found That a Copyholder seised in the right of his wife made a Lease for years and it was a question whether it were a forfeiture of the inheritance of the wife Hitcham Serjeant said it was no forfeiture Dodderidg Justice took this difference Where a Feme Sole is a Copyholder and she takes a husband who makes a lease for years without licence the same is a forfeiture because it is her folly to take such a husband as will forfeit her Land But where a Copyhold is granted to a Feme Covert and the husband maketh a Lease without Licence in such case it is no forfeiture and so in the Case of a Feme Lessee for life at the Common Law against Whitinghams Case C. 8. part 44. It was adjourned Trin. 21 Iacobi in the Kings Bench. 439. NOte It was the opinion of all the Justices and so declared That if the Plaintiffe in an Ejectione firme doth mistake his Declaration That the Defendant in such Case shall have his Costs of the Plaintiffe by reason of his unjust vexation Trin. 21 Iacobi in the Kings Bench. 440. FOur several men were joyntly Indicted for erecting and keeping of four several Inns in Bathe It was moved that the Indictment was insufficient because the offence of the one is not the offence of the other like unto the Case in Dyer 19. Where two joyn in an Action upon the Case for words 't is not good but they ought for to sever in their Actions because the wrong to the one is no wrong to the other Dodderidge Iustice One Indictment may comprehend several offences if they be particularly laid and then it is in Law several Indictments It may be intended that the Inns were lawfull Inns for it is not laid to be ad nocumentum and therefore not punishable but if they be an anoyance and inconvenient for the Inhabitants then the same ought particularly to appear otherwise it is a thing lawfull to erect an Inn. An Action upon the Case lyeth against an Inn-keeper who denies lodging to a Travailer for his money if he hath spare lodging because he hath subjected himself to keep a common Inn. And in an Action upon the Case against an Inn-keeper he needeth not to shew that he hath a Licence to keep the Inn. If an Inn-keeper taketh down his Signe and yet keepeth an Hosterie an Action upon the Case will lie against him if he do deny lodging unto a Travailer for his money but if he taketh down his Signe and giveth over the keeping of an Inn then he is discharged from giving lodging The Indictment in the principal case is not good for want of the words ad Nocumentum Haughton and Ley Iustices argreed Ley If an Indictment be for an Offence which the Court ex Officio ought to take notice to be ad Nocumentum there the Indictment being general ad Nocumentum contra Coronam dignitatem is sufficient without shewing in what it is ad Nocumentum But for Inns it is lawfull for to erect them if it be not ad Nocumentum c. and therefore in such Indictments it ought to be expressed that the erecting of them is ad Nocumentum c. and because in this Case there wants the words ad Nocumentum the Indictment was quashed Vi. The Lord North and Prat's Case before to this purpose Trin. 21 Iacobi in the Kings Bench. 441. BRIDGES and NICHOLS's Case THey were Indicted for the not repairing of such a Bridg and the Indictment was debent solent reparare pontem c. It was moved that the Indictment was insufficient because it is not alledged in the Indictment that the the Bridg was over a Water and no needfull that it be amended Secondly It did not appear in the Indictment that
pay the money there he shall recover damages besides the dutie Here the Action was brought before the request made and so no damage to the Plaintiff and the Judgment was that the Plaintiff recuperet damna predict viz. the damages laid in the Declaration Dodderidge Justice The Judgment ought to be Consideratum est quod Gleede recuperet damna quae sustinuit and not damna predict which are mentioned in the Declaration and then a Writ is awarded to enquire of the damages quae sustinuit The Judgment was reversed per Curiam Mich. 1 Caroli in the Kings Bench. Rot. 189. 455. TAYLOR and HODSKIN's Case IN an Ejectione firme upon a special Verdict it was found That one Moyle was seised of divers Lands in Fee holden in Socage and having issue four daughters viz. A B C D. A. had issue N. and died And afterwards Moyle devised the said Lands unto his wife for life and after her decease then the same equally to be divided amongst his daughters or their heirs Moyle died and afterwards his wife died and Hodskins in the right of B C D. three of the daughters did enter upon the Lands N. the daughter of A. married F. who entred and leased the Lands to the Plaintiff Taylor Whitfield for the Plaintiff The only point is Whether N. the daughter of A. one of the sisters shall have the fourth part of the lands or not by reason of the word Or in the Will It is apparent in our books C. 10. part 76 the Chancellor of Oxfords Case C. 3. part Butler and Bakers Case That Wills shall be construed and taken to be according to the intent of the Devisor And therefore Br. Devise 39. A devise to one to sell to give or do with at his will and pleasure is a Fee-simple And in our Case if N. shall not take a fourth part the word heirs should be of no effect C. 1. part in Shellies Case All the words in a Deed shall take effect without rejecting any of them and if it be so in a Deed à fortiori in a Will which is most commonly made by a sick man who hath not Councell with him to inform or direct him In this Case the three sisters who were living at the time of the Devise took presently by way of remainder and the word heirs was added only to shew the intent of the Devisor That if any of the three sisters had died before his wife that then her heir should take by discent because her mother had taken by purchase And by reason of the word heirs the heir of A. shall take by purchase and the disjunctive word or shall be taken for and as in Mallories Case C. 5. part A reservation of a Rent to an Abbot or his Successors there the word or shall be taken for and reddendo singula singulis Trin. 7. Jacobi in the Common Pleas Arnold was bound in a Bond upon Condition that he suffer his wife to devise Lands of the value of 400l to her son or her daughter and she devised the Lands to her son and her daughter And it was resolved that it was a good performance of the Condition And there the word or was taken for and And there Justice Warburton put this Case If I do devise all my goods in Dale or Sale it shall be a Devise of all my goods in both places and or shall be taken for and. In this Case the word heirs was not added of necessity for the heir of any of the sisters to take by purchase but only to make the heir of A. to take part of the Lands The Court was of opinion that it was stronger for the Plaintiff to have it or in the disjunctive For they said that if it were and then it would give the three sisters the Fee and not give the heir of A. a fourth part but being or there is more colour that she shall take a fourth part by force of the Devise It was adjourned Trin 2 Caroli Rot 913. in the Kings Bench. 456. ASHFIELD and ASHFIELD's Case THe Case was An Enfant Copyholder made a Lease for years by word not warranted by the Custome rendring Rent The Enfant at his full age was admitted to the Copyhold and afterwards accepted of the Rent The question was Whether this Lease and the acception of the Rent should bind or conclude the Enfant Crawley Serjeant argued That it was a void Lease and that the acception should not bar him It is a ground in Law That an Enfant can do no Act by bare contract by word or by writing can do any Act which is a wrong either to himself or unto another person or to his prejudice In this Case if the Lease should be effectual it were a wrong unto a stranger viz. the Lord and a prejudice unto himself to make a forfeiture of the Inheritance If an Enfant commandeth A. to enter into the land of I. S. and afterwards the Enfant entreth upon A. A is the Disseisor and Tenant and the Enfant gaineth nothing So if A entreth to the use of the Enfant and the Enfant afterwards agreeth to it in this Case here is but a bare contract and an agreement will not make an Enfant a Disseisor No more shall he be bound by a bare Deed or matter in writing without Livery 26 H. 8. 2. An Enfant granteth an Advowson and at full age confirmeth it all is void Br. Releases 49. Two Joynt-Tenants one being an Enfant releaseth to his Companion it is a void Release 18 E. 4. 7. An Enfant makes a Lease without reserving Rent or makes a Deed of grant of goods yet he shall maintain Trespass nay though he deliver the goods or Lease with his own hand the same will not excuse the Trespass nor will it perfect the Lease or make the grant of the goods good If the Contract have but a mixture of prejudice to the Enfant it shall be void ◠Jacobi in the Kings Bench Bendloes and Holydaies Case An Obligation made by an Enfant with a Condition to pay so much for his apparel because the Bond was with a penaltie it was adjudged void If Tenant at Will make a Lease for years he was a Disseisor at the Common Law before the Statute of West 2. cap. 25. 12 E. 4 12. Tenant at Will makes a Lease for years 10 E. 4. 18. 3 E. 4. 17. But if an Enfant be Tenant at will and he maketh a Lease he is no Disseisor In our Case if he had made Livery then I confess it had been a defeisible forfeiture and he mignt have been remitted by his entrie upon the Lord. Farrer for the Plaintiff The Lease is not void but voidable 7 E. 4. 6. Brian 18 E. 4. 2. 9 H. 6. 5. An Enfant makes a Lease for years and at full age accepts of the Rent the Lease is good because the Law saith that he hath a recompence Com. 54. A Lease for years the remainder
Statute of West 2. First they said That Copyholds are not within the letter of the Statute which speaks onely de tenementis per chartam datis c. Secondly they are not within the meaning of it 1. Because they were not untill 7 E. 4. 19. of any accompt in Law because they were but Estates at will 2. The Statute of West 2. provides against those who might makeâ— a dissen heresin by Fine or Feoffment which Copyholders could not do 3. Because if Copyholders might give lands in tail by the Statute then the Reversion should be left in themselves which cannot be 4. The Makers of the Statute did not intend any thing to be within the Statute of Donis whereof a Fine could not be levied For the Statute provides Quod sinis ipso jure sit nullus 5. Great mischiefs would follow if Copyholds should be within the Statute of West 2. because there is no means to dock the estate and no customary conveyance can extend to a Copyhold created at this day 37 Eliz Lane and Hills case adjudged in the Common-Pleas was cited by Justice Harvey where a Surrender was unto the use of one in tail with divers remainders over in tail The first Surrenderee dyed without issue And first it was agreed and adjudged That it was no discontinuance 2. If it were a discontinuance yet a Formedon in the Remainder did not lie because there ought to be a Custom to warrant the Remainder as well as the first Estate tail For when a Copyholder in Fee maketh such a gift no Reversion is left in him but only a possibility And the Lord ought to avow upon the Donee and not upon the Donor And there is a difference when he maketh or giveth an estate of inheritance and when he maketh a Lease for life or years for in the one case he hath a Reversion in the other not 2. A Recovery shall not be without a special custom as it was agreed in the Case of the Mannor of Stepney because the Warrantie cannot be knit to such an Estate without a Custom And for express authority in the principal Case he cited Pits and Hockleâ—'s ase which was Ter Pasc 35 Eliz. rot 334. in the Common-Pleas where it was resolved That Copyholds were not within the Statute of Donis for the weakness and meanness of their estates For if they were within the Statute of West 2. the Lord could not enter for Felony but the Donor and the Services should be done to the Donor and not to the Lord of the Mannor And so and for these mischiefs he conceived That neither the meaning nor the words of the said Statute did extend to Copyholds Hill 34 Eliz. Rot. 292. in the Kings Bench Stanton and Barney's Case A Surrender was made of a Copyhold within the Mannor of Stiversden unto one and the heirs of his body and after issue he surrendred unto another And it was agreed by all the Justices That the issue was barred And Popham did not deny that Case but that it was a Fee conditional at the Common-Law and that post prolem suscitatam he might alien And so it was agreed in Decrew and Higdens case Trin. 36. Eliz. rot 54â— in the Kings Bench and in Erish and Ives case 41 42 Eliz. in the Common-Pleas in an Evidence for the Mannor of Istleworth That no Estate tail might be of Copyhold without a Custom to warrant it Mich. 36 37 Eliz. in the Kings Bench it was adjudged That a Copyholder could not suffer a common Recovery and the reason was because that the Recovery in value is by reason of the Warrantie annexed to the Estate at the Common-Law which could not be annexed to a Customary estate And another reason was given because that he who recovers in value shall be in by the Recovery and the Copy of the Court-Roll only should not be his Evidence as Littleton and other books say it ought to be And Crook said That the Statute of Donis was made in restraint of the Common-Law And it should be very disadvantagious to the Lord if Copyhold should be construed to be within that Statute And therefore he conceived that the said Statute did not extend to Copyholds by any equitable construction And such difference was taken by Popham Chief Justice 42 Eliz. in the Kings Bench rot 299. in Baspool and Long 's Case For he said That a Custom which did conduce to maintain Copyholds did extend to them But a Statute or a Custom which did deprave or destroy them did not As if one surrender to the use of one for life the Remainder in Fee where the Custom is to surrender in Fee the Custom doth not extend thereunto because a Custom which goes in destruction of a Copyhold shall be taken strictly But if a man be Copyholder in Fee he may grant a Fee conditional Harvey Justice put some Cases to prove the small account the Law had of Copyholds at the time of the making of that Statute as 40 E. 3. 28. 32 H. 6. br Copyhold 24. And he said That there is not any book in the Law but only Mancels case in Plow Comment That the Statute of West 2. doth extend to Copyholds Hill 2 Caroli rot 235 in the Kings Bench. 459. LITFIELD and his Wife against MELHERSE A Writ of Error was brought upon a Judgment given in an Action upon the Case brought by Husband and Wife in the Common-Pleas for words spoken of the Plaintiffs wife And the Judgment in the Common-Pleas was That the husband and wife should recover And that was assigned for Error in this Court because the Husband only is to have the damages and the Judgment ought to be That the Husband alone should recover But notwithstanding this Error assigned the Judgment was affirmed by the opinion of the whole Court Pasch 2 Caroli rot 362. in the Kings Bench. 460 HOLMES and WINGREEVE's Case A Writ of Error was brought to reverse a Judgment given in the Court at Lincoln in an Action of Trespass there brought for taking away a Box with Writings And four Errors were assigned 1. Because the Plaintiffe did not appear by Attorney or in person at the retorn of the Attachment against the Defendant so as there was a discontinuance for the Plaintiffe ought to appear de die in diem 2. Because in his Declaration there he saith That the Defendant took a Box with Writings and doth not make any title to the Box nor shews that the same was lockt nailed or sealed 2 H. 7. 6. a. The certainty of the writings ought to be shewed that a certain issue may be taken thereupon Com. 85. 22 H. 6. 16. 14 H. 6. 4. 21 E. 3. He ought to shew the certainty of the writings 18 H. 1. Charters in a Box sealed C. 9. part Bedingfields case C. 5. part Playters case The Declaration was insufficient because the Plaintiffe therein did not name the certain number of the Fishes 3. He pleaded That he made a
and the party be delivered out of Execution then he shall not be taken again in Execution But if he be taken in Execution upon an erronious Process if he be delivered out he may be taken again in Execution for the first Execution was erronious and is no Record being reversed Hyde Chief Justice If a man recover in Debt upon an Obligation and the Judgment be reversed by Error he is restored to his first Action and may plead Nul tiel record Dyer 59 60. Triwingards Case A man in Execution had a VVrit of Priviledg out of the Parliament upon which the Sheriff sets him at liberty by Law for a time yet he shall be in Execution again and the Law saves the others right Broome Secondarie of the Kings Bench If Error be brought after the year of the Judgment in the Common Pleas and the Judgment be affirmed here the partie may take forth a Capias within the year of the Judgment affirmed although in the Common Pleas he cannot have a Capias because the year is past For we are not to respect what process he ought to have in the Common Pleas but after the year of the Judgment affirmed here the partie is to have a Scire facias Jones Justice said That when he was a Reporter the Judges delivered their opinions in Garnons Case C. 5. part 88. That if after the year and day he bring Error and the Judgment be affirmed that he ought to have the like process here as in the Common Pleas And that was a Scire facias because that the year was past in the Common Pleas although it were within the year of the Judgement affirmed here Dodderidge Justice The Cases which Banks cited are Law but are not well applyed The whole Court was of opinion That if the Common Pleas award erronious process the Court cannot award a Supersedeas but the partie is put to his VVrit of Error here and upon that erroneous Process we cannot grant a Supersedeas but the partie is put to his new VVrit of Error And according to the opinion of the Court Sir William Fish brought a new VVrit of Error Mich. 2 Caroli Rot. 179 in the Kings Bench. 462. BELLAMY and BALTHORP's Case IN an Action of Trover and Conversion The Plaintiff did lay it that he was possessed of twenty Loads of Wheat and that he lost them and that they came to the Defendants hands who converted the same to his own use The Defendant did justifie and said That the Parish of O. is an ancient Parish in which there is a Rectorie impropriate c. and the Earl of Clare was seised of the Rectorie and made a Lease unto him of the Tythes of that Parish for one year by force of which he was possessed and that the Corn was set forth by the Parishoners and that one T. gathered the Tythe and delivered the same to the Plaintiff and that the Defendant his Servant took away the Tythe as it was lawfull for him to do Upon which the Plaintiff did demurr First because the Plea did amount to no more then the general issue viz. Not guilty and if the Plea do amount to no more then the general issue then it is no good plea but he ought to have taken the general issue 5 H. 7. 11. Ass For if in an Assise the Tenant saith that the Plaintiff did disseise him and that he entred upon him the plea is not good because it amounts but to the general issue viz. Nul lort nul disseisin and the other party may demurr upon it 22 E. 4. 40. In Trespass for Batterie it is no plea to say that he did not beat him because it is but Not guilty by Argument 34 H. 6 28. b. If I bring Trespass for breaking of my Close It is no good plea to say that I have no Close or if it be for carrying away my Goods to say that I had not any Goods but the Party ought to have pleaded Not guilty It may be objected That in this Case the Defendant makes Title to the Corn. To that we say He derives a Title to Tythes without a Deed which gives no title to them For Tythes do not pass by Demise alone without Deed but by the demise of the Rectorie without Deed they will pass So by a Feoffment of a Mannor without Deed the Services will pass but the Services alone will not pass without a Deed. 21 H. 7. 21. 19 H. 8. 12. A Warren may be demised without Deed. 9 E. 4. 47. But the profits of Courts will not pass without Deed. 22 H. 6. 34. b. By way of Contract a Demise may be of Tythes without Deed but in pleading it ought to be set forth that there was a Deed. C. 10. part 92. Where the Deed ought to be shewed which proves that there ought to be a Deed. In the Common-pleas in an Action of Trover and Conversion of certain Goods the Defendant said That A. was possessed of them and made him Executor c. And the Plaintiff did demurre and had Judgment because it amounted but to the generall Issue Dodderidge Justice The Parson may demise his Tythe to the Owner of the Land without Deed but he cannot grant them to a stranger without Deed. If the Defendant make Title from a stranger then it doth amount to the generall Issue but if both Plaintiff and Defendant make Title from one Person or Donor then the plea is a good plea. Otherwise per Curiam it doth amount to the generall Issue But the Opinion of the Court was because that the Defendant did make a title of Tythes without a Deed therefore Judgment in the principall Case was given for the Plaintiff Trin. 3 Caroli in the Kings Bench. 436. The Dean and Chapter of Carlisle's Case A Writ of Error was directed unto the City of Carlisle to remove the Record of a Judgment given there in Curia nostra whereas the Judgment was given tempore Jacobi And the Opinion of the Court was That it was not good nor the Record thereby well removed Dyâ—r 4. Eliz 206 b. There was a Certiorari to remove a Record cujusdam inquisitionis capt c. in Curia nostra Whereas in truth it was taken in the time of the predecessor of the King and so thereby the Record was not well removed Dodderidge Justice If a Writ of Error doth abate upon the Plea to the Writ and the Record be well removed the partie may have a new Writ of Error coram vobis residet c. but if the Record be not well removed as in this Case at Barr it is not then the partie shall not have a new Writ of Error here We do many times grant a Scire facias to sue forth Execution in the inferior Court which proves that the Record by an ill and insufficient Writ of Error is not removed but doth remain there still If there be variance betwixt the Record and the VVrit of Error the Record is not well
removed but if the VVrit of Error want only form but is sufficient for the matter in substance the VVrit shall not abate but the partie may have a new VVrit of Error coram vobis residet c. Trin. 3 Caroli in the Kings Bench. 464. MILL's Case ACtion upon the Case for these words Thou hast Coyned Gold and art a Coyner of Gold Adjudged the Action will not lie for it may be he had Authority to Coyn and words shall be taken in mitiori sensu Pasch 3 Car in the Kings Bench. 465. BROOKER's Case THe question was VVhether the Feoffee of the Land might maintain a VVrit of Error to reverse an Attaindor by Vtglary and the Case was this William Isley seised in Fee of the Mannor of Sundridge in Kent had issue Henry Isley who was Indicted of Felony 18 Eliz. and 19. Eliz. the Record of the Indictment was brought into this Court and thereupon 20 Eliz. Henry Isley was outlawed William Isley died seised Henry Isley entred into the Mannor and Land as son and heir and being seised of the same devised the Mannor and Lands to C. in Fee who conveyed the same to Brooker and Brooker brought a Writ of Error to reverse the Outlawry against Henry Isley Holborn argued for the King and said that Brooker was no way privy to the attaindor of Henry Isley but a meer stranger and therefore could not maintain a Writ of Error And first he said and took exception that he had not set himself down Terre-Tenant in possession Secondly he saith in his Writ of Error That the Mannor and Lands descended to Henry Isley as son and heir when as he was attainted The third exception was That he saith that Henry Isley did devise the Lands and that he could not do because he was a person Attainted Fourthly he said that Brooker was not Tenant so much as in posse 4 H. 7. 11. If it were not for the words of Restitution the partie could not have the mean profits after the Judgment reversed 16 Ass 16. Lessee for years pleaded to a Precipe and reversed it the question was whether he should be in statu quo vi Librum for it is obscure If this Attaindor of Henry Isley were reversed yet it cannot make the devise good For there is a difference betwixt Relations by Parliament which nullifie Acts and other Relations Vi. 3 H. 7. Sentlegers Case Petition 18. The violent Relation of Acts of Parliament If a Bargain and Sale be the Inrollment after will make Acts before good but a Relation by Common Law will not make an Act good which was before void C. 3. part Butler and Bakers Case A gift is made to the King by Deed enrolled and before the enrollment the King granteth away the Land the Grant is void yet the enrollment by Relation makes the Lands to pass to the King from the beginning Admit in this Case that Brooker were Terre-Tenant yet he is not a party privy to bring a Writ of Error to reverse the Attaindor of him who was Tenant of the Land and I have proved That although the Attaindor were reversed yet he hath nothing because the Devise was void and is not made good by Relation It is a rule in our Books that no man can bring a VVrit of Error but a partie or privy 9 E. 4. 13. 22 E. 4. 31 32. 9 H. 6. 46. b. Ass 6 C. 3. part in the Marquiss of Winchesters Case The heir of the part of the mother cannot have the VVrit of Error but the heir of the part of the father may So if erronious Judgment be given in the time of profession of the eldest son and afterwards he is dereigned he shall have the Writ of Error In 22 H. 6. 28. The heir in special taile or by Custom cannot have Error But yet M. 18 Eliz. in Sir Arthur Henninghams Case it was adjudged That the special heir in tail might have a Writ of Error The Baile cannot maintain a Writ of Error upon a Judgment given against the Principal because he was not privy unto the Judgment therefore it shall be allowed him by way of plea in a Scire facias I never find that an Executor can have Error to reverse an Attaindor but for the misawarding of the Exigent Marshes Case was cited C. 5. part 111. Fitz 104. Feoffee at the Common Law could not have an Audita Quaerela in regard he was not privy 12 Ass 8. 41. Keâ—laway 193. There the Terre-Tenant brought a Writ of Error in the name of the heir and not in his own name 24 H. 8. Dyer 1. There it is said That he who is a stranger to the Record shall have Error To that I answer That he in the Reversion and the particular Tenant are but one Tenant for the Fee is demanded and drawn out of him But in the principal Case at Barr no Land is demanded but a personal Attaindor is to be reversed Also there it is put That if the Conusee extend before the day there it is said that the Feoffee may have Error 17 Ass 24. 18 E. 3. 25. Fitz. 22. To that I answer That the Feoffee is privy to that which chargeth him for the Land is extended in his hands and if the Feoffee there should not have a Writ of Error the Law should give him no manner of remedy for there the Conusor himself cannot have Error because the Lands are not extended in his hands Also it is there said that the Feoffee brought a Scirefacias against him who had execution of the Land To that I answer That that is by special Act of Parliament Also there it is said That if the Parson of a Church hath an Annuity and recovereth and afterwards the Benefice is appropriated to a Religious house the Soveraign of the house shall have a Scirefacias I answer That in that Case he is no stranger for that he is perpetual Parson and so the Successor of the Parson who recovered 12 H. 8. 8. There a Recovery was against a Parson and there Pollard said that the Patron might have Error I answer That Pollard was deceived there for it is said before that the Parson hath but an Estate for life and then he viz. the Patron is as a Recoverer who shall have a Writ of Error Dyer 1. But the Parson hath the Fee and therefore Pollard was mistaken as it appeareth by Brook Fauxi fier de Recovery 51. 19 H. 6. 57 Newton A false verdict is had against a Parson the Patron cannot have an Attaint There is a difference if one be partie to the Writ although not partie to the Judgment Error 72. A Quare Impedit was brought by the King against the Patron and the Incumbent and Judgment only was had against the Patron and the Incumbent Parson brought a Writ of Error but if he had not been partie to the Writ he could not have maintained Error So in Attaint the partie to the Writ though not to the Judgment shall
have Attaint 44 E. 3. b. 7. But if he be not partie to the Writ he shall not maintain Attaint as if he pretend Joynt-Tenancy with a stranger who is not named and the verdict pass against him he shall not have attaint But Jones Justice said that he might have Attaint Admit the first Feoffee viz. C. might have a Writ of Error yet Brooker in this case cannot because he is the second Feoffee and a Writ of Error is a thing in Action and not transferable over C. 3. part The Marquiss of Winchesters Case C. 1. part Albanies Case One recovers against A. who makes a Feoffment to B. neither the Feoffee nor Feoffor shall have Error for he viz. B. comes in after the title of Error and the Feoffor shall not have the Writ of Error because he is not a partie griev'd 34 Eliz. in the Common Pleas. Sherrington and Worsleys Case Sherrington had Judgment against Worsley and afterwards acknowledged a Statute to B. Sherrington sued forth Execution B. brought Error upon the Judgment and it was adjudged that it would not lie First because he was a stranger Secondly because he came in under and after the title of Error See the reason C. 3. part the Marquiss of Winchesters Case where it is said that a Writ of Error is not transferrable This Attaindor doth not work upon the Land and so it doth not make the Terre-Tenant privy but it works upon the person and blood of Henry Isley the Land is not touched For Henry Isley was attainted in the life of his Father and so it did not touch the Land For if Henry Isley had died without issue in the life of his father the youngest son should have had the Land by discent which proves that it works not upon the Land but upon the person Bankes for the Plaintiff and he desired that the Outlawrie might be reversed As this Case is there is no other person who can maintain Error Henry Isley had his pardon before the Outlawrie but he came not in to plead it and now having enjoyed it so long a time we hope a Purchasor shall be favoured before him who beggs a concealed title The first Exception was taken To the Devise by a person attainted I answer That that is but the conveyance to the Writ of Error Secondly it was said that none but privies or parties could maintain Error and the adverse partie would disable the heir on the part of the Mother and by Custome Thirdly he would disable the Feoffees and make them as strangers First the Outlawrie was 20 Eliz. against Henry Isley which was after the seisin of the Land and Brooker is a party able to bring a Writ of Error being the heir of the purchasor Error and Attaint go with the Land 13 H. 4 19. Dyer 90. Br. Cases 337. But Estopels and Conditions go to the heir Fitz. 21. Error brought by a special heir It is not necessary that alwaies the heir and partie to the Record have the Writ of Error but sometimes he who is grieved by the Record A Scirefacias is a Judicial Writ founded upon a Record and hath as much in privity is Error and yet a stranger to the Record shall have it 16 H. 7. 9. The heir of the purchasor brought a Scirefacias to execute a Fine It was objected that he was not a partie to the Record but it was resolved in respect he was to have the benefit that he was a sufficient person to maintain the Writ 17 Ass 24. 18 E. 3. 25. Execution was upon a Statute before the time that it ought to have been and a Feoffee brought Error It was objected that he was not partie nor privie to the Record yet because he was was grieved by the Execution he did maintain the Writ of Error Trin. 34 Eliz. in the Kings Bench Sherrington and Worsleys Case not rightly remembred Sherrington did recover in debt against Worsley who aliened the Land to Charnock afterwards an Elegit is awarded upon the Roll and Charnock brought Error and it was admitted good and Sherrington forced to plead to it Now in the principal Case we are the partie grieved by the Outlawrie and therefore may maintain the Writ 21 H. 6. 29. A Reversioner or he in the Remainder without aid prayer or Resc ' shall have a Writ of Error because they are damnified although they be not parties to the Record I agree that where one is not grieved by the Judgment there a stranger shall not have Error 21 E. 4. 23. A Recovery is in Debt and the Defendant is taken and escapes the Sheriff shall not have a Writ of Error for he is not grieved by the Record but by the escape 2 R. 3. 21. The Principal is Outlawed in Felony afterwards the Accessory is condemned he shall not have a Writ of Error to reverse the Outlawrie of the Principal for he is not grieved by that Outlawrie but by his own Condemnation Another Objection was because here was an Outlawrie against him and therefore he shall be disabled to sue I answer Our Writ of Error is brought to reverse that Outlawrie and we shall not be rebutted by that Outlawrie when we are to reverse it 7 H. 49 40. Error brought to reverse an Outlawrie the Defendant would have disabled the Plainfiff by another Outlawrie and it was not allowed because he seeks to avoid it 10 H. 7. 18. For the Mastership of an Hospital Exception was taken to the Writ because the Assise is brought to undoe the name of Master and therefore he ought not to name him Master 22 H. 6. 26. Abbot and Covent the Abbot is preferred and the Covent elected another Abbot And the Patron brought a Quare Impedit to defeat the Election It was ruled because he goes about to overthrow the Election he need not name him Abbot Garranty 29. and 18 E. 3. 8. â—o the same purpose The matter of devise is but conveyance to the Writ of Error and the Writ shall not be abated for surplusage 9 E. 4. 24. 7 E. 4. 19. Surplusage is no barr nor Estopel The Outlawriâ— was against Henry Isley and Peckham and wants these words Nec eorum alter comparuit Dodderidge Justice To say where a Feoffee shall have a Writ of Error is a large field If this Feoffee bring Error and reverse the Judgment he must restore the heir in blood and who can have a Writ of Error to restore blood but he who is privie in blood and that is the heir Jones Justice Marshes Case C. 8. part 111. was never adjudged There an Executor could not reverse an Attaindor by Outlawrie because it doth restore the blood The Case of Sherrington and Charnock was to reverse the Execution and not the Judgment An Executor shall have a general Writ of Error to reverse an Outlawrie It was adjourned Pasch 3. Car. in the Kings Bench. 466. GUNTER and GUNTER's Case A Writ of Error was brought to reverse a Judgment in the Court
being made at Dunkirk but to be performed in England The second If Tookley being the Attorney be such a party prosecutor as is within the Statutes The ancient Law of the Admirals Jurisdiction appears in our Books 8 E. 2. Corone 399. Staunton Justice It shall not be accounted the Sea where a man may see the land over the water And the Coroners were to do their office in such case and the County was to take notice thereof 40 Ass 25. Stamford 11. This Commission was at the Common-Law before the Statutes of Pyracie 46 E. 3. tras 38. Statham It is pleaded that the Defendant took the goods as Pyracie c. I infer thereupon that it was a good Justification 7 R. 2. tras 54. Statâ—am Trespass was brought for a Ship and Merchandises taken upon the Sea and holden good which proves that the Common-Law had jurisdiction upon the Sea and not the Admiral 6 R. 2. Protection 46. Protection quia profecturus super altum mare Belknap The Sea is within the Kings jurisdiction and the Sea is as well in the Kings protection as is the Land It may be objected That the Contract was made at Dunkirk and so out of the body of the County and so our Law cannot take notice of it and if the Admiral shall not have jurisdiction in such case it should remain undetermined To that I answer If all the matter were to be done at Dunkirk then all were a Marine case and the Admiral should have jurisdiction but if any part were to be done in England then it is otherwise M. 30 31 Eliz. C. 6 part 47. in Dowdalos case In an Action upon the Case upon Assumpsit the Plaintiff did declare That the Defendant at London did assume that such a ship should sail from Melcomb Regis in Suffolk to Abvile in France The issue was tryed in London because the Contract was made in England Pasch 28 Eliz. Gynne and Constantines Case there because it was part upon the Sea and part upon the Land the tryal was at the Common-Law and not in the Admiral Court 48 E. 3. 2. One did retein three Esquires to serve in France there because the Reteiner was here the tryal was here If a Mariner contract with me for wages to sail in such a ship he shall demand his wages at the Common-Law and not in the Admiral Court vi 39 H. 6. 39. There a Protection super vetilationem Calisiae c. cannot be moraturus because that the Sea is ever ebbing and flowing and doth not stand still So that if any part of the Contract be to be done upon the Land then Common-Law shall have the jurisdiction Wreck of the Sea shall be tryed at the Common-Law because it is cast upon the Land Dyer 326. t' E. 1. Avowry 192. A Replevin was brought of a ship taken upon the coast of Scarborough and carried into Norfolk and it was alleadged to be within the Statute of Malebridge for taking a Distress in one County and carrying of it into another County Bereford The King wills that the Peace be kept as well upon the Sea as upon the Land And our Case differs from Lacy's case C. 2. part Foâ— in that case of Felony it is meer local but Contracts are not so local The second point Whether this be a prosecution within the Statutes because it was done by vertue of a Letter of Attorney from Mullibeck 32 E. 3. barr 264. Annuity 51. Qui per alium facit per seipsum facere videtur The Statute of Merton cap. 10. gave power to make Attorneys in any Court Com. 236. but the Attorney must look at his peril that that which he doth be a lawful act Here Mullibeck himself could not have justified this prosecution nor shall his Attorney â— H. 7. 24. 28 H. 8. 2. Quod per me non possum per alium non possum If an Enfant make a Letter of Attorney to make Livery and Seisin and the Attorney maketh Livery accordingly he is a Disseisor C. 10. part 76. If the Court have not jurisdiction of the Cause the Minister must look to it at his peril otherwise he is punishable Tras 253. One may do that himself which he cannot do by Attorney The Lord may beat his villein but a stranger cannot do it for the Lord the Lord may distrein for Rent when it is not behind and the Tenant shall not have trespass but if the Bailiff distrein when no Rent is arrear trespass lieth against him 2 H. 4. 4. 9 H. 7. 14. In Trespass all are Principals Then the Attorney here and Mullibeck are both Trespassors against the Statutes And the doing of the Attorney at the command of the Master shall not avail him vi Dyer 159. doth conduce to the reason that the Attorney shall be punished It seems this suing in the Court of Admiralty is a Contempt for it is malum prohibitum and so either Mullibeck or the Attorney are punishable And in this case the Plaintiff hath his Election to sue Mullibeck or the Attorney and therefore having sued the Attorney the Action brought against him will well lie Calthrop for the Defendant It was objected That the Court of Admiralty did begin but in the time of King Edw. 3. But Dyer 152. proves the contrary For there in an Assise brought of the Office of Admiralty the Plaintiff doth declare the same to be an Office time out of mind c. which proves it to be a more ancient Office And in the Statute of 2 H. 5. cap. 6. There the words are to enquire of all offences c. as the Admirals after the old custom which proves that it is an ancient Office It 's true Avowry 192. makes against me but the Notes of that Case in writing proves that the book is misprinted I confess if part of the thing be to be done here upon the Land that it is triable at the Common-Law The Defendant in this our Case is not liable to the penalty because at the time of the making of these Statutes it was not known that any Charter-partie was made beyond the Seas 2 E. 3. Oblig 15. Debt was brought upon an Obligation made at Barwick where becaus this Court had not jurisdiction It was adjudged That the Plaintiff nihil capiat per breve Testament 16. A Testament bore date at Cane in Normandy which was proved in England Pole Upon an Obligation which bears date in Normandy a man shall not have an Action here but it is good in case of a Will proved here 6 E. 3. 17 18. The Abbot of Crowband granted an Annuity and the Deed was made in Scotland If the Deed had been the ground of the Action then the Action would not have lien but because the Deed bore date before time of memory the Annuity did lie for the Action was not brought upon the Deed but upon the Prescription 1 E. 3. 1. 18. 8 E. 3. 51. It is ruled where the title is made by a
but doth not shew by whom And shewed that the Lands inclosed out of which the Inhabitants had their Common And said That there were divers other Grievances to the Inhabitants of Tue but did not shew by whom they were nor what they were and shewed that at a Parliament the Defendant did deliver such a Writing to the Prince as one of the Peers of Parliament supposing that the grievances were set upon the Inhabitants by the Plaintiff by reason the Plaintiff occupied the Lands so inclosed and for Reformation thereof that he delivered the Writing to the Prince Absque hoc that he did deliver it in any other manner And upon this Plea in Barr Tanfield the Plaintiff did demurr in Law Noy for the Plaintiff said That the Defendant complains of wrong and doth not shew any wrong to be done by Tanfield the Plaintiff It is a grievous scandal to deliver this Writing for it is a scandalous Writing and no Petition for therein he doth not desire any Reformation but complains generally Betwixt John Frisel and the Bishop of Norwich The Case touched in 21 E. 3. was That Frisel brought a Prohibition to The Bishop and the Bishop excommunicated him for the delivering of it unto him The Bishop was fined And there it is said As Reverence is due to the King so it is due to his Ministers Our Action is brought at the Common Law and not upon the Statute of R. 2. de scandalis magnatum M. 18 E. 3. Rot. 162. Thomas Badbrook sent a Letter to Ferris one of the Kings Councel the effect of which was That Scot Chief Justice of the Kings Bench and his Companions of the same Bench would not do a vain thing at the Command of the King yet because he sent such a Letter to the Kings Councel although he spake no ill yet because it might incense the King against the Judges he was punished for it might be a means to make the King against his Judges We are to see here if the Defendant hath made any good Justification If there were no wrong then there was no cause to complain Secondly If he had demeaned himself as he ought he ought to have had the wrong if there were any reformed and that he did not do 11 H. 4. 5 H. 7. A voice of Fame is a good cause for to Arrest a man of Felony but then some Felony ought to be committed 7 H. 4. 35. A certain person came and said to one that there were certain Oxen stoln and that he did suspect such a one who he arrested upon the suspition It is a good cause of Justification if any Oxen were stoln but if no Fellony was committed if one be arrested upon suspicion that he hath committed Fellony it is not good If Fellony be done then a good cause to suspect him but if no Fellony be done nor he knoweth nor heareth of any Fellony committed there is no cause for to suspect that the partie hath committed Fellony but there ought to be suspition that the partie hath committed such a particular Fellony Where Fellony is committed certainly one may be arrested upon suspition but unless a Fellony be committed he cannot be arrested For where no Fellony is committed at all he shall not be drawn to a Tryal to clear himself of the suspition but if a Fellony be certainly committed and he be arrested upon the suspition there he being forced to answer to the Fellony he may clear and purge himself of the infamy upon his tryal and so the infamy is not permanent as in case when no Fellony is committed for there he may bring his Action upon the Case Here he saith that parcel of the Waste is inclosed and doth not shew what parcel so as no certain issue can be taken upon it Moor and Hawkins Case in an Ejectione firme It was alledged that he entred into parcel of the Land and the Land was alledged to lie in two several Towns and it was not good because no certain issue could be thereupon He saith the same was inclosed but doth not shew by whom it was inclosed viz. whether by the Feoffor or Tanfield the Feoffee he complains of many grievances but doth not shew what they are and he ought not to be his own Judge Secondly He hath not demeaned himself as he ought for he hath not desired in the Letter any Reformation but only he complains of the oppression of Tanfield He ought to have directed the Writing unto the Parliament and he directed the same unto the Prince by name In the Letter he doth not shew that Tanfield the Plaintiff did oppress but that the Plaintiff was an oppressor but he doth not shew in what thing The Case was adjourned Trin. 21 Iacobi in the Kings Bench. 487. SCOT'S Case PRoborum legalium hominum is omitted in the Certificate of an Indictment by the Clark of the Sessions Curia If it had been in Trespass the omission of the said words had vitiated the Indictment but not in Case of Felony Quaere the reason Trin. 21 Iacobi in the Kings Bench. Intratur M. 19 Jac. Rot. 322. 488. CROUCH and HAYNE'S Case IN a Writ of Error the Record is removed out of the Common Pleas The Defendant pleads in nullo est Erratum and a Demurrer is joyned and the Defendant afterwards alledgeth Diminution of the Original 7 E. 4. 25. The Assignement of Errors is in lieu of the Declaration 4 E. 4. Error 44. After that in nullo est erratum is pleaded the Defendant shall not alledg Diminution for they are agreed before that that is the Record The Writ of Error was general and did not shew when the Judgment was when the Ejectment was what the Lands were and nothing is certain in the Writ of Error but the persons and the Action He shall not be concluded by the general retorn of the Record by the Chief Judg of the Common Pleas. Fitz. 25. a. C. 6. Entr. 231. The Record was removed and a Scire facias awarded ex recorde and Diminution was alledged for omitting of certain words yet the Retorn there was of the Record omnia ea tangentia Dyer 330. The Court certifie that the partie was not essoigned there then cannot be any Certificate of the Chief Justice to the contrary The Principal Case was An Original bore date in June 18 Jacobi and another Original in September 18 Jacobi and both were retornable S. Mich. And the Trespass was done after the first Original sued forth and before the later and both the Writs are in Court The question was upon which of the Originals the Judges should judge 4 E. 4. 26 27 28. There it is holden that the Judges ought not to suppose any Error 22 E. 4. 45 Error was brought to reverse a Judgment in a Writ of Dower And the Error assigned was That there was not any Issue joyned but because there was sufficient matter upon which the Judges might give their verdict therefore the Judgment was affirmed
for the Judgment was not given upon the verdict Pasch 25 H. 8. Rot. 25. Plot and his wife against Treventry in a Writ of Error after the Record removed Diminution of the Original was alledged and there it was pretended that the Judgment was given upon another Original and one of the Originals was before and the other after the Judgment and there the Judgment was reversed because it cannot appear to the contrary but that the Judgment was given upon the later Original Trin. 18 Jacobi Rot. 1613. Bowen and Jones's Case In an Action upon the Case brought upon Assumpsit Error assigned was because that no place was limited where the payment should be made The Original was That the promise was in consideration that the Plaintiff did lend to the Defendant so much he at London did promise to pay the same to him again There were two Originals which bore date the same day Judgment was in that Case for the Plaintiff And the Defendant brought a Writ of Error and alledged Diminution of the Original then the other Original was certified The Defendant in the Writ of Error said That the Original upon which the Recoverie was grounded was an Original which had a place certain The Judges did affirm the same to be the true Original which did maintain the Judgment and agree with the proceedings otherwise great mischief would â—ollow George Crook contrarie and recited the Case viz. Hayns brought a Writ of Error against Crouch and the Writ of Error is to reverse a Record upon a Judgment which was given in the Common Pleas The Original which is certified bears date Trin. 18 Jacobi and the Ejectione firme is brought Trin. 18 Jacobi for an Ejectment which is made in September following and now upon this Errour assigned the partie had a Certiorari to remove the Record upon which you alledge Diminution For you say That the Originall upon which the Judgment was given bore date in September 18. Jacobi which was after the Ejectment The bodie of the Record is Trin. 18. Contrary to this Record you say that there was an Originall Mich. 18 Jacobi and so that is contrary to the Record Error 2. upon the Record The Originall is not part of the Record but you ought to assigne Errour in that which is alledged in Diminution 6 H. 7. 4 Fitz. 21 a. To alledge any thing against a Record is void The Ejectment was after the Originall which warrants the Record and it was after the Action brought They alledge that the Originall was not truely certified and that then after an Imparlance an Originall Writ is made to Warrant the Action Jones and Bowâ—ns Case before cited There a vitious Originall was certified and then upon the Complaint of the Defendant the true Originall was certified both were retornable at the same day And in the Case before cited of Plott and Treventris The Originall which was first certified did not bear date according to the Record which was certified But in our Case the last Originall doth not agree with the Record but the first But in the Case of Plott the Judgement was reversed for another Error The Diminution when it stands with the Record shall be allowed but when it differs from the Record then it shall not be allowed The Ejectment was layed after the first Originall purchased which agrees with the Record and after the Action brought Quod nota It was adjuorned till another Terme viz. Mich. 21. Jacobi Trin. 21. Jacobi in the Kings Bench. 489. SOMMERS Case THe Case was between Sommers and Mary his Wife Plaintiffs who Traversed an Office found after the death of one Roberts The parties were at Issue upon one point in the Traverse and it was found against the King Henden Serjeant moved The Office finds That Roberts dyed seised of two Acres in Soccage and four foot of Lands holden in Capite which was alledged Roberts had by Encroachment Sommers and his Wife pleaded That Roberts in his life time did enfeoffe them of one of the Acres Absque hoc that that Acre did discend And for the other Acre they pleaded and entitled themselves by the Will of Roberts Absque hoc that Roberts was seised thereof That I take to be an insufficient Traverse First it is found by the Office That Roberts dyed seised and that the same discended to four Daughters and One of the Daughters is the Wife of Sommers And hee and his Wife traverse the Office and confesse that the Ancestor died seised Absque hoc that the same discended The Traverse is repugnant in it self for if he did Devise it then untill Entry by the Devisee it doth discend but if they had pleaded the Devise only and Entry by force thereof it might have been a good Traverse The Office findes that it did discend to four Daughters and the Wife of Sommers is one of the four Daughters and he and his Wife Traverse the discent and that is not good for one cannot Traverse that which makes a Title to himself 37 Ass 1. The Rule there put is That a Man cannot Traverse the Office by which he is intitled but in point of Tenure he may Traverse it wherewith agrees Stamford Prerogat 61. 62. 42 Ass 23. One came and Traversed an Office and thereby it appeared that Two there had occasion to Traverse it and it was holden that they all ought to joyne in the Traverse Finch Recorder of London contr ' The Office found generally That Roberts had four Daughters and had two Acres and four Foot of Lands and that the same discended to four Daughters Sommers and his Wife Traverse the Office and plead That as to one Acre Roberts made a Feoffment thereof unto them Absque hoc that he died seised thereof 2. That Roberts devised the other Acre to them Absque hoc that the same did discend 5 Eliz. Dyer 221 Bishops Case There it is resolved That a Devise doth prevent a Remitter and then by consequent it shall prevent a Discent 49 E. 3 16. There a Devise did prevent an Escheat to the King As to the four Foot gained by Encroachment which is holden of the King in Capite They traverse Absque hoc that Roberts was seised thereof I agree that where their Title is joynt there all must Traverse but in our Case we Traverse for our selves and deny any thing to be due to the three other Sisters The four Foot of Waste was part of the Mannor of Bayhall and the Venire facias was out of that Mannor and the Towns where the other lands lay 9 E. 4. A. disseises B. of a Mannor and A. severs the Demeasnes from the Services Now B. shall demand the Mannor as in Truth it now is Henden contr ' It is no part of the Mannor of Bayhall for it is encroached out of it therefore the Venire facias ought not to be of the Mannor of Bayhall The Jury finde that he had encroached four Foot Ex vasto Manerii c.
Dodderige Justice the encroachment doth not make it to be no parcell of the Mannor Ley chief Justice it is not layed to be a Disseisin but an Encroachment and therefore it is not so strong as a Disseisin with a Discent but in Right it belongs to the Mannor Tenant in Tail makes a Feoffment to the use of himself and deviseth the Lands to A. the Devise doth prevent the Remitter Haughton Justice the Discent is Traversed The Father dieth seised and hath issue two Sons and that the Lands discended to him the other may say That the Land is borough English and that the Lands discend unto him Absque hoc that they discended to the Eldest Dodderidge Justice Regularly you shall not Traverse the Discent but by the dying seised but in this Case it ought to be of necessity sc â— in case of a Devise the Traverse must be of the Discent for here they cannot traverse the dying seised for if they traverse the dying seised then they overthrow their own Title sc the Devise but here in Case of a Will the partie shall traverse the Discent for he cannot say that it is true that the Lands did discend and that he Devised it c. The heir cannot traverse that which entitles him by Discent but here his Title is by the Devise and not as heir Finch Recorder the Devise is not of the four Foot for if we confess the dying seised of the four Foot which was holden in Capite then we should overthrow our own Devise The Office finds that he died seised of the whole and therefore of the four foot He being never seised we traverse the dying seised thereof and we deny that he ever had it so the Traverse is good without making of us any Title unto it for we desire not to have it Dodderidge Justice If a man deviseth to his heir it is a void Devise for the discent shall be preferred But if one hath Issue four daughters and he deviseth to one of them it is good for the whole Land so devised to her and no part of the Land so devised shall discend to the other the Lands being holden in Socage Ley Chief Justice and the whole Court did agree That they might deny and traverse the four Foot if the Ancestor had no Title unto it and Judgment was given accordingly against the King quod nota Trin. 21 Jac. in the Kings Bench. 490. PAYNE and COLLEDGES Case AN Agreement was made between Payne and Colledg That if Payne being Chirurgion did Cure Colledg of a great Disease viz. A Noli me tangere That then he should have 10l and that if he did not cure him That then for his pains and endeavours Colledg would give him 5l In an Action upon the Case brought by Payne he doth not shew in his Declaration in what place he used his endeavour and Industry And there is a difference where the Plaintiff is to do any thing of Skill and Industry for there he may do the same at several times and in several places and so this Case differs from the Cases in our books 15 H. 6. Accord 1. is expresly in the point There the Defendant pleaded an Accord That if the Defendant by his Industry c. And exception was taken because that he did not shew a place 3 E. 4. 1. Debt brought by a Servant and declares that he was reteined by the predecessor of the Defendant c. and that he had performed his Service c. It was moved in Arrest of Judgment and Exception taken as in our Case because he did not shew where he did the Service for that is issuable and Denly there said That he need not shew the place because he might do it in several places Bridgeman Serjeant contrarie If the issue had been upon a Collateral matter it had been good enough but here the issue is taken upon an endeavour and you ought to alleadg a place for the tryal of it Dodderidge Justice The Jury was from the place where the Agreement was made the verdict will not make good the Declaration although the Jury have found the whole matter of fact for it doth not appear to us That that was the Jury which could try his endeavour The Case of 3 E. 4. of the Servant was to serve him seaven years and there he need not shew any place where he did his Service but only that he obeyed his Master in his Service for the seaven years If the Plaintiff in this Case had shewed but any one place of doing his endeavour in it had been sufficient but here he sheweth no place at all And therefore Judgment was given That Querens nihil Capiat per Billam Trin. 21 Jacobi in the Kings Bench. 491. The Lord ZOUCH and MOORES Case IN an Action of Trespass for cutting down of Trees in Odiham Park in Hampshire It was found by special Verdict That King Henry the eighth was seised of the Mannor and Park of Odiham And by his Letters Patents 33 of his Reign did grant unto Genny the Office of Stewardship of the said Mannor and the Office of Parkership of the said Park with reasonable Herbage and by the same Letters Patents did grant unto him the Mannor of Odiham cum pertinaciis and 100. Loads of Wood excepting the Park the Deer and the Wood for fifty years if he should so long live Then they found That after that Genny did surrender and restore the Letters Patents in the Chancery to be cancelled and that in truth they were cancelled and that the said Surrender was made to the intent to make a new Lease thereof unto Pawlet and that this Lease of 33 H. 8. being surrendred That King Henry the 8. Anno 36. of his Reign reciting the Letters Patents made to Genny to be dated anno 32 H. 8. whereas in truth they were dated 33 H. 8. and that they were surrendred and that the intent of the Surrender was to make a new Lease to Pawlet Did grant the same to Pawlet as before they were granted to Genny excepting as before They further found That King Philip and Queen Mary 5 6 of their Reigns being seised of the said Mannor and Park in jnro Coronae reciting that Henry the 8. anno 36 of his Reign had granted unto Paulet as before omitting the Proviso which was for 50 years if he should so long live and the Exceptions before And reciting that those Letters-Patents were surrendred ea intentione to make a new Lease in forma sequente They in consideration of good service and 200l paid did grant the Office as before and by those Letters-Patents did grant Herbage generally whereas the first Patent was reasonable Herbage And by these Letters-Patents did grant to him the Mannor cum pertinaciis except the grand trees and woods in the Park and Felons goods which were granted by the first Letters Patents for 50 years And here was a Rent reserved and a Proviso that for doing of Waste that the
reasonable Herbage Here the Grant is not De omnibus grossis arboribus bonis catellis Felonum and of the Goods of Felons themselves and in the former Patent these were granted and so the Grant is for the Kings benefit and to the prejudice of the Patentee Also this Patent is ad proficuum Domini Regis For here is a Rent reserved and here is a Proviso for the committing of Waste in the premisses which were not in the first Letters Patents and in these Letters Patents there are divers Covenants which were not in the former Patents and so it is in forma sequente And so the Lease of Philip and Mary is good The King seised of a Manor to which he hath a Park doth grant the Stewardship of the Manor and the Custodie of the said Park with reasonable Herbage Afterwards in the same Letters Patents hee grants the said Manor of O. and all the Lands in O. excepting grosse trees in the Park If this Grant be not good for the Manor it is not good for the Park that was the Objection It is good for the Manor and also for the Park It was objected That the King grants the custody of the Park and so not the Park it selfe for how can the King grant the custody of the Park if he grant the Park it selfe it is dangerous that upon an implication in one part of a Patent the expresse words which follow should be made void the subsequent words in this Case are The King grants the Manor and all the Lands to the same belonging now the Park doth belong to it and the King excepts only the Deer C. 10 part 64. The King at this day grants a Manor unto a man as entirely as such a one held the same before it came into his hands c. the Advowson doth passe without words of grant of the Advowson for the Kings meaning is That the Advowson shall passe The meaning of the King is manifest in our Case C. 3. Part 31 32. Carr's Case There the Rent was extinct betwixt the Parties yet for the benefit of the King for his tenure it hath continuance for a thing may be extinct as to one purpose and in esse as to another purpose 38. Ass 16. a Rent extinct yet Mortmain Dyer 58 59. The Exception ought to be of the thing demised In our Case the Park doth passe but the King shall have the liberties in it and so here the Park shall passe and the Exception is of the liberties Com. 370. the Exception ought to be of that which is contained in the former words in the former Patents the Offices were first granted and in the same Letters Patents the Manor was afterwards granted But now King James grants the Manor first and then the Offices Construction of Statutes ought to be secuncundùm intentionem of the makers of them and construction of Patents secundùm intentionem Domini Regis C. 8. part 58. You ought to make such a construction as to uphold the Letters Patents C. 8. part 56. Auditor Kings Case There the Letters Patents were construed secundùm intentionem Domini Regis and adjudged good But to make void the Patent they shall not be construed secundùm intentionem but to make a Patent good they shall be construed secundùm intentionem Domini Regis The Case was adjourned till Michaelmas Terme next Note I have heard Sir Henry Yelverton say That it was the opinion of the Judges in this Case That he had but the custody of the Park and not the interest of the Park for that by the acceptance of the custody of the Park when he had a Lease of the Park before it was a surrender of his Lease Trinit 21. Jacobi in the Kings Bench. 492 SHORTRIDGE and HILL's Case SHortridge brought an Action upon the Case against Hill for ravishing of his Ward and the Writ was contra pacem without the words Vi armis Lib. Dent. 366. where three Presidents are of Actions upon the Case without Vi armis An Action upon the case for doing of any thing against a Statute must be contra pacem Ley Chief Justice Recovery in this Action may be pleaded in Barre in a Writ of Ravishment of Ward brought Dodderidge Justice The Action of Trespasse at the common Law is only for the taking away of the Ward and here he hath elected his Action at the common Law and then he shall not have an Action upon the Statute viz. a Ravishment of Ward but here the Action upon the Case is brought for the taking and detaining of the Ward so as he cannot preferr him in marriage and upon this speciall matter the Action upon the Case lieth without the words Vi armis A Writ of Ravishment of Ward ought to be brought in the Common Pleas but yet you may bring a Writ of Ravishment of Ward in this Court if the Defendant be in the custody of the Marshal of the Marshalsey for in such special Case it shall be brought in this Court if there be an extraordinary matter besides the Trespass then an Action upon the Case lieth as when A. contracts with B. to make an estate unto B. of Bl. Acre at Michaelmas if C. enter into Bl. Acre A. may have an Action upon the Case against C. for the speciall damage which may happen to him by reason that he is not able to perform that contract by reason of the entry of C. and he shall declare contra pacem but not Vi armis Trinit 21. Jacobi in the King 's Bench. 493 BAKER and BLAKAMORE's Case IN Trespass the Defendant pleaded That J. S. being seised in Fee gave the Lands unto Baker and the Heirs of his body and conveyed the Lands by descent to four Daughters and Blakamore the Defendant as servant to one of the Daughters did justifie The Plaintiff did reply That the said J. S. was seised in Fee and gave the same to Baker and the Heirs Males of his Body and conveyed the Land by descent to himself as Heir Male absque hoc that J. S. was seised in Fee Henden Serjeant did demur in Law upon the Replication and took Exception to the Traverse for that here he traverseth the Seisin of J. S. whereas he ought to have traversed the gift in tail made by J. S. for the being seised is but an inducement not traverseable and therefore he ought to have traversed the gift in taile for then he had traversed the seisin for he could not give the Lands in tail if that he were not seised thereof in Fee L. 5. E. 4 9. there in Formedon the Tenant would have traversed the Seisin of the Donor but the book is ruled that the Traverse ought to be of the gift in tail and that includes the Seisin Bridgment for the Plaintiffe and said That the Serjeant is of opinion contrary to the Books when he saith positively that you ought to traverse the gift in tail and not the seisin of the Donor
The Case shortly is A. being seised in Fee makes a gift in tail to B. and that descends to four daughters c. And the Plaintiff replies That A. was seised in Fee and gave the Lands to B. and to his Heirs Males and the Plaintiffe claimes the entail as Heir Male and the Defendants under the generall tail absque hoc that A. was seised in Fee 27. H. 8. 4. by Englefield If in Trespass the Defendant plead the Feoffment of a stranger and the Plaintiff saith That he was seised in Fee and made a Lease for years to the said stranger who enfeoffed the Defendant he need not to traverse absque hoc that he was seised in Fee C. 6. part 24. The seisin in Fee is traversable Br. Travers 372. acc Dodderidge Justice The seisin in this Case is traverseable Ley Chief Justice Take away the Seisin and then no gift and therefore the Seisin here is Traverseable Haughton and Chamberlain Justices agreed The Court resolved That either the Seisin in Fee or the gift in tail is traverseable Dodderidge Justice If you both convey from one and the same person then you must traverse the conveyance It is a rule C. 6. part 24. there the Books are cited which warrants the traverse of either Quod nota It was adjudged for the Plaintiff Trinit 21. Jacobi In the Kings Bench. 494 Sir EDWARD FISHER and WARNER's Case THE Testator being indebted unto Fisher made Warner his Executor and Warner in consideration that Fisher would forbear suing of him upon the Assumpsit of the Testator did promise to pay him Fifty Pounds and in an Action upon the Case upon this promise Warner pleaded Non Assumpsit in the Common Pleas and it was found for the Plaintiff And a Writ of Error was brought in this Court because it was not shewed for what consideration the Testator did promise 2. Because it was not shewed That Warner the Executor had Assets in his hands It was said by the Councel of Sir Edward Fisher That they need not shew that he hath Assets because the Defendant Warner was sued upon his own promise C. 9. part 94. The Testator made a promise to pay to Fisher fifty pound and died The Executor in consideration of the forbearance of a Suit upon that promise of the Testator doth assume to pay c. The Jury find for the Plaintiff The Error is that no time is limited nor no place where the promise was made and also it is not shewed when the Testator died and so it is not shewed whether the promise were made in the life time of the Testator or not for if it were in the life time of the Testator then the promise was void Nor is the time of the forbearance shewed and so no good consideration Hill 5. Jacobi a consideration to forbear paululum tempus is no good consideration by Cook And the like case was adjudged 36. Eliz. Rot. 448. Sackbdos case We do alledge de facto that we have forborn our Suit and that the Defendant hath not paid us the money Dodderidge Justice It is alledged that the Plaintiff paid money to the Testator upon which he promised And the Action now brought is upon the promise of the Executor Part of the promise is That he paid the fifty pound to the Testator and that ought to be proved in evidence to the Jury C. 6. part Gregories case if it be not specially named how he shall prove it Haughton to forbear to sue him is for all his life time and not paululum tempus Dodderidge Justice Exception was taken that he doth not shew that the Testator was dead at the time of the promise by the Executor It was shewed That after the death of the Testator that he took upon him the Execution of the Will and then promised and that of necessity must be after the death of the Testator Trinit 21. Jacobi in the King 's Bench. 495 WILLIAM's and FLOYD's Case IN an Ejectione firme The Array was challenged because it was made at the Nomination of the Plaintiffe And by consent of the parties two Atturneys of the Court did try the Array The question was Whether the Triall of the Array was good It was said by the Councel which argued for the Defendant That it was not good If one of the four Knights be challenged the three other Knights shall try that challenge and if he be found favourable he shall be drawn and if another of the Knights be challenged hee shall be tried by the other two and if one of the two be challenged then a new Writ shall issue forth to cause three Knights to appear 9. E. 4. 46. The two which quash the Array ought to try the Array of the Tales for that they are strangers to them The assent of the parties in this case is to no purpose for the consent of the parties cannot alter the Law neither can the King alter the Law but an Act of Parliament may alter the Law 29. Ass 4 19. H. 6. 9. by Newton 27. H. 8. 13. Where a triall cannot be out of the County by the assent of the parties and if it be it is errour By the Councel of the other side contrary This triall of the Array is much in the discretion of the Judges for sometimes it is tried by the Coroners and they are strangers to the Array 21. Ass 26. 20. Ass 10. there the Judges at their discretion appointed one of the Array and the Coroners to try it 27. Ass 28. there upon such a challenge it was tried by the Coroners and Shard said That the triall by any of them was sufficient and by Forriners de Circumstantibus 31. Ass 10. so as it rests much in the discretion of the Judges 29. Ass 3. there it was denied But note That that was in Oyer and Terminer and there it did not appear that the Array was made at the Nomination of one of the parties but in other challenges it may be tried by one of the Panell But in our case they were all challenged was the objection 9. E. 4. 20. Billing For if one of the parties will nominate all of the Jurours to the Sheriffe it is presumed that they are all partiall and 〈◊〉 â—his case the whole Array is challenged but in other cases he may challenge one or two of the Array and yet the others may be indifferent But admit it had been errour yet being by the assent of the parties it is no errour Baynams case in Dyer A Venire facias by assent of the parties was awarded to one of the Coroners and good Dyer 367. 43. E. 3. Office of Court 12. One of the twelve doth depart If the Justices do appoint one of the panell to supply his place it is erroneus but yet if it be with the assent of the parties it is good So in our case 21. E. 4. 59. Brian saith That he hath not seen more then two to try the Array yet by assent of the
the words are upon reasonable request which implies a reasonable time to consider of it And there might be many occasions both in respect of her self and of the Common wealth that she could not at that â—ime do it And Hill 37. Eliz. in the Common Pleas PERPOYNT and THIMBELBYES Case A man Covenants to make Assurances It was adjudged hee shall have reasonable time to do it In 27. Eliz. the opinion of Popham was That if a man be bounden to make such an Assurance as Councell shall advise there if Councell advise an Assurance he is bound to make it But if it were such Reasonable Assurance as Councell shall advise There If the Councell do advise That he shall enter into seale and deliver a Bond of a thousand pound for the payment of an hundred pound at a day hee is not bound to doe it because it is not reasonable Vide 9. Ed 4. 3. cap. 6. part Bookers Case Doct. Stud. 56. 14. H. 8. 23. Secondly He said That the request in the principall Case was not according to the Covenant for the election in this case was on the womans part and not on the Covenantees part and shee was to doe the act viz. to surrender And where election is given of two things the same cannot be taken from the party and if it should be so in the principall Case the Covenantee should take away the election of the Covenanter And where the manner of Assurance is set down by the parties there they cannot vary from it and in this case the manner is set down in which the Covenanter hath the election because shee is to do the act And hee said That the woman was not bounden afterwards to surrender in Court upon this request because the request was as it were a void request And it is implyed by the words That shee in person ought to make the Surrender and so hee prayed Judgment for the Defendant It was adjourned Trinit 8. Caroli in the King 's Bench. 514. HYE and Dr. WELLS Case DOctor William Wells sued Hye in the Ecclesiasticall Court for Defamation for saying to him that hee lyed And the Plaintiffe prayed a Prohibition It was argued for the Defendant that in this Case no Prohibition should goe For it was said that by the Statute of 21. Edw. 1. of Consultation When there is no Writ given in the Chancery for the party grieved in the Temporall Court there the Spirituall Court shall have the Jurisdiction and in this Case there is no Writ given by Law And Fitzherbert Natura Brevium 53. h. a Consultation doth not lie properly but in case where a man cannot have his Recovery by the Common Law in the Kings Courts for the words of the Writ of Consultation are viz. Proviso quod quicquid in juris nostri regii derogationem cedere valcat aliqualiter per vos nullatenus attemptetur And Vide Register 149. Falsarius is to be punished in the Spirituall Court And Fitzherb Nat. Brev. 51. I. A man may sue in the Spirituall Court where a man defames him and publisheth him for false Vide Linwood in cap. de foro compâ—tenti acc Trin. 6. Jacobi in the Common Pleas Boles Case Rot. 2733. A man called a poor Vicar poor rascally Knave for which the Vicar sued him in the spirituall Court And by the opinion of the whole Court after a Prohibition had been granted upon further advice a Consultation was granted 1. It was objected That the party might be punished by the Temporall Judges and Justices for the words To which it was answered That although it might be so which in truth was denied yet the party might sue for the same in the spirituall Court And many Cases put That where the party might be punished by either Lawes that the partie had his election in what Court he would sue And therefore it was said That if a man were a drunkard he might be sued in the Ecclesiastical Court for his drunkennesse and yet he might be bounden to his good behaviour for the same by the Justices so the imputed father of a Bastard child may be sued for the offence either in the spirituall Court or at the Common Law by the Statute of 18. Eliz. and 7. Jacobi So F. N. B. 52. k. If a man sue in the spirituall Court for taking and detaining his wife from him to whom he was lawfully married if the other party sue a Prohibition for the same yet he shall have a Consultation quatenus pro restitutione uxoris suae duntaxat prosequitur and yet he may have an Action at the Common Law De uxore abducta cum bonis viri or an Action of Trespasse Maynard contrary By the Statute of Articuli Clâ—ri although that the words be generall yet they do not extend to all defamations And by Register 49. where the Suit is for defamation there the Cause ought to be expressed ought to be wholly spirituall as the Book is in 29. E. 3. and C. 7. part in Kenn's Case And in the principal Case It is not a matter affirmative which is directly spirituall And therefore 22. Jacobi where a Suit was in the Ecclesiasticall Court for these words Thou art a base and paultery Rogue a Prohibition was awarded And so Vinor and Vinors Case Trinit 7. Jacobi in the King's Bench Thou art a drunken woman Thou art drunk over night and mad in the morning 2. Hee said That Crimen falsi in the spirituall Court is meant of counterfeiting of the Seal or of Forgery and Crimen falsi cannot be intended a lie If in ordinary speech one sayes That 's a lie If the other reply You lie that is no defamation for Qui primum peccat ille facit rixam Trinit 42. Eliz. Lovegrove and Brâ—wens Case A man said to a Clark a spirituall person Thou art a Woodcock and a Foole for which words he sued him in the spirituall Court and in that Case a Prohibition was awarded It was adjourned Trinit 8. Caroli in the Kings Bench. 515 GWYN and GWYN's Case A Quod ei deforceat was brought against two they appeared and pleaded severall Pleas and the issues were found against both of them and a joint Judgement was given against them both and they brought a Writ of Error thereupon in the Kings Bench. And the opinion was That the Judgement was Erroneous and that the Writ of Error would well lie So in a Writ of Dower brought against two Tenants in common who plead severall Pleas the Judgement must be according to the Writ But Barkley said That if in a Writ of right by two the Mise is joyned but in one Issue where severall Issues are the Judgment ought to be severall Quaere quia obscurè Trinit 8. Caroli in the Kings Bench. 516 BLAND's Case THE Case was this Thomas Spence was a Lessee of Lands for one hundred years and he and Jane his Wife by Indenture for valuable consideration did assign over to Tisdale yeilding and paying
adjourned Pasch 10. Caroli in the Kings Bench. 518 BARKER and TAYLOR's Case IN an Ejectione firme the Case upon the Evidence was this Two Coparceners Copy-holders in Possession the one did surrender his reversion in the moity after his death Charles Jones moved That nothing did passe because he had nothing in Reversion Vide C. 5. part Saffyns Case If a man surrendreth a Reversion the Possession shall not passe 2. It is not good after his death so was it adjudged in C. 2. part Buckler and Harvey's Case Curia The Surrender is void and the same is all one as well in the Case of Copy-hold as of Free-hold and so was it adjudged 26. El. in Plats Case and so also was it adjudged in this Court 3. Caroli in Simpsons Case Pasch 13. Caroli in the Kings Bench. 519 HUMFREYS and STUDFIELD's Case IN an Action upon the Case for words the Plaintiff did declare That he was Heir apparant to his Father and also to his younger Brother who had purchased Lands but had no Issue either Male or Female and that the Defendant with an intent to bring him in disgrace with his Father and also with his younger brother and thereby to make the Father and younger Brother to give away their lands from the Plaintiff did maliciously speak these words to the Plaintiff Thou art a Bastard which words were spoken in the presence of the Father and younger Brother by reason of speaking which words the Father and younger Brother did intend and afterwards did give their Lands from the Plaintiff And by the opinion of the whole Court it was adjudged That the words were Actionable and Judgement entred accordingly FINIS I have perused this Collection of Reports and think them fit to be printed Per me JOHANNEM GODBOLT Unum Justiciar ' de Banco 18. Jun. 1648. An Alphabetical TABLE A ABatement of Writs 9 34 64 By Death 66 68 For Surplusage 380 Abeyance 313 314 319 443 Accâ—ptance 47 39 384 385 425 When a man is bound to accept c. 39 Accessary 65 Accusation before a Justice 444 Acts which purge the wrong before 384 Act subsequent where lawfull 28 29 First Act 337 Action 337 Another Action hanging 258 In what County 42 See County there where it bears date 388 Possessory 34 Before Seisin c. Special 186 Accord see Arbitrament Account 30 43 56 90 291 155 122 123 210 As Baiâ—y ad Merchandizandum 58 Against Executors 291 292 Acquittal 19 Acquittance 104 Addition de Parochia 203 Administrator is found to be an Executor 26 Surety in debt is Administrator c. 149 Administrator counts of his own Possession before he be possessed 34 see 40 Retains for his own debt 217 Administration 33 34 2 Durante minori c. 30 Sues to Execution the Executor comes of age 104 Admiralty upon a stipulation or bill there the body of the stipulators who are for the most part Masters of ships and Merchants transeuntes may be taken no execution can be upon lands It s jurisdiction 260 261 Admiralty Court its jurisdiction things partly done on land 386 387 388 389 390 Advâ—wson 17 38 128 129 passes in Grants 425 Equity in Statutes 308 Agreement disagreement 180 After an arâ—est 360 After Assumpsit 361 Alien 275 Amendment 57 286 103 Amercement 49 135 Distress for it without Presentment 190 Annuity 4 144 Ancient Demesn pleaded 64 320 Appeal 275 Appendant Appurtenant 40 352 353 Apportionment of rent 95 118 139 Apprentices bound by Covenants though Infants 122 Appropriation 1â—4 Approvement of common 116 Arbitrement 13 241 25 276 165 185 in part good 256 Arreers 12 Array triers of it 429 430 Arrests 125 358 lawful 360 Assault and battery 251 Assent of parties 429 430 Assets 29 30 31 averred 176 Assignment 18 of Debts 81 c. Assignee 3 16 70 271 277 120 162 Assize 4 for erecting houses 189 Assurance as counsel shall advise 435 bound to assure 445 446 Assumpsit 13 31 274 72 73 94 159 the arrest is void 360 337 338 350 138 144 358 to the servant 361 Attachment of Debts by custome 297 196 401 402 403 404 Attainder 267 275 303 325 376 Attaint 271 378 279 Atturnment 19 25 320 142 Atturney for livery 39 Atturney must not do acts unlawful 387 what he may do 389 Receipt by him 217 Audita querela 257 104 155 377 Averment of uses 269 214 in a devise 131 432 that Cestuy que vie is alive 195 Avowry 24 302 320 upon whom 368 Authority must be persued 39 84 195 389 naked 307 to recover a debt without more 358 359 Ayde 318 B BAil 148 339 Debt against them 354 Bailment of Goods 160 403 Bankrupts one Commissioner hath right to the land 319 division where but one bond 195 196 Bargain and sale 270 156 Bar Pleas in Bar 253 434 Insufficient 138 two bars 397 Barretor 384 Bastard 275 281 Battery a base fellow strikes a man of dignity 207 Benches 246 247 Bill Suits by bill 389 Bill for oppression or extortion 438 By-Lawes 50 Bishops their Acts 342 Borough English 3 C CApias 39 257 83 372 373 Case Action of c. 13 40 54 55 58 64 240 241 73 285 98 155 160 381 412 liâ—s 329 330 338 344 346 137 176 200 362 426 against an Inn-keeper 42 See Slander Vi armis c. 426 Trover c. 267 274 Challenge 234 110 193 428 429 to the Sheriff and Coronets 357 Chancery 262 Chaplains 41 Charge 3 Charters 370 Things in point of Charter 93 Church-Wardens 279 Cessavit 84 Certainty incertainty 14 93 336 220 once in a deed 198 Certiorari Certificate 14 356 404 Citation out of the Diocess 190 Claim 333 389 of the Lessee 105 Clark of a Parish 163 Colledges are Corporations 394 Collusion Covin 78 298 Colour 159 Commission Commissioners 105 193 High Commissioners 58 Common 4 21 96 97 185 168 169 170 171 Surcharged 182 Digging in the Common c 343 344 making Coney Boroughs 327 Where woods are inclosed 267 What the Commoner may do upon the ground 123 12â— Conclusion by the word praetextu 344 Condition assignee 162 c. 3 9 29 38 39 75 99 101 against Law 250 void 293 Lessee assignes Rent 336 broken acceptance by rent after 47 performance 299 that neither A. B. or C. shall disturb c. 60 61 not to implead A. 72 to assure lands as Councel shall advise 338 339 360 Confession 80 to save harmlesse c. 134 Confirmation 25 Consideration 13 31 32 94 134 159 437 against Law 251 to forbear a debt 303 306 See assumpsit 428 Conspiracy 76 206 447 Consultation 446 447 Contract 31 98 176 intire 154 Continuance to some intents 309 in Courts 195 Contribution for one surety against another 243 Conviction before it lands not to be begged 206 nor seised there 365 366 Copy-hold 2 11 47 233 268 129 130 140 Admittance 269 143 extinguished 101 Statutes extend to it 15 369 tailed 20 21 367 Fines 265 Leases
171 365 368 369 forfeiture 269 142 365 felling trees 173 174 trespasse brought 174 Corporation 347 dissolved the donor shall have his land again 211 sues 393 Costs 329 345 220 Covenant 38 assignee 162 Executors ibid. 11 12 48 69 70 to build a mill c. there 271 273 175 99 120 333 335 217 to surrender 445 performed 95 The Indenture is void in part 213 Covenant 87 121 cause of things must appear in the Court 401 Countermand 133 County where actions shall be brought 335 of trials 429 Courts-Baron 68 69 Leet 71 Tower Court 145 of Requests 208 216 243 244 Kings Bench and Chancery 357 Acts done in spiritual Courts 33 163 164 181 215 Curia claudenda 127 Custom 5 49 234 140 143 235 267 261 135 of descents 166 127 That the wife may devise to the husband 14 Particular Customes 163 D Day in Court 68 Day materiall to be set down 433 434 Damages recowping in them 53 135 362 jonyt severed 57 assessed 98 343 344 not assessed writ of enquiry 207 not recoverable in account 57 treble 245 to be severed 210 Damage feasan 124 185 Date of a Patent 416 Declaration 251 86 186 in an action upon 1 2. P. M. of distresses 11 upon an Assumpsit 32 Custome 252 particularly 358 insufficient 76 106 343 370 mistakes 345 287 119 160 125 Deed things passe by one deed 129 by deed 354 128 Debt 253 91 336 372 217 210 who liable 294 The Kings debt 289 290 291 292 293 294 295 296 Default 280 Defamation 440 Delivery of deeds 130 of money to anothers use 210 Demand 23 39 67 96 154 337 where to be 331 by writ 74 335 310 the word 398 Demurrer 10 Denizen made 417 Departure 255 122 Depositions 193 Deprivation 259 163 Detaining 8 Detinue 370 Declaration in it 403 Devastation by Executors 30 Devastavit 285 Devise 7 14 15 16 26 40 46 208 266 280 95 99 130 131 299 319 146 351 352 363 to a Colledge c. 394 prevents a remitter c. 411 to a mans heir 412 to one daughter heir of land held by Knights service c. 17 to sell 78 to the Son and heir 94 Dilapidation 259 Diminution 267 alledged 407 Disability the plaintiff cause of it 75 76 Discharge 11 105 ought to shew what 61 Discent 3â—5 312 365 Disclam 25 Discontinuance one issue only found 5 370 within a year 219 Discontinuance by tenant in taile 317 Disseisin 522 of a particular estate 139 Acts of disseisor disseisor sues c. 388 Distresse justified 109 110 187 190 driven out of the Countrey 11 sufficient upon the Land 67 110 Divorce 19 145 Dove-coat a Writ of Right lies of it 259 erected 284 Dower 21 135 145 A Lease is for years 266 Forfeitable by the Husband 323 Averment of seisin of the husband for damage 212 E Ejectione firmae 6 15 18 53 71 72 33â— extra tenet unnecessary 60. lyes 157 Plea 149 Election 258 159 127 140 446 To sue 196 determined ibid. Elegit 257 82 84 Ely jurisdiction there 380 381 Emblements 159 Enclosure in Forrests 167 168 169 170 171 Entry into one house 72 To defeat an estate 9 To fortifie it 25 for forfeiture 175 No trespasse 283 Error 26 258 248 73 80 84 87 372 373 lyes not 261 247. brought 376 377 378 379 439. directed 44. things uncertaine 408. severall 440 Escape 22 27 262 280 125 126 372 403 Fresh suite 177 433 Escheat 78 For Miscreancy 34 Right of action 322 Essoine 235 236 Estates 19 42 51 52 272 A Lease for time 102 103 determined 9 the lesse drowned 52 voidable 9 Estoppel 257 48 147 321 177 384 385 Estranger to a plaint erroneous c. 403 Estovers custome pleaded 235. see 238 97 173 Estrepment 112 164 Estrey 150 151 Eviction 258 Evidence maintaines not the issue 235 see 326 Execution 26 257 258 80 82 83 84 290 295 147 125 126 181 371 372 373 217 Assignment after judgement 161 Taking 372. severall 208 Executors 21 192 See Right Of his own wrong 104 Reteines 217 Order in payment 298 Pleads fully administred 178 Exception in a grant 116 117 118 Time past to take it 100 One releases 431 Exâ—hange 99 100 Exigent 83 217 Excommunication 191. unjust 406 Exposition 16 17 18 36 37 67 71 236 246 198 of Lawes 39 of Statutes 309. and Patents 425 Extent 82 289 311 Extinguishment 24 11 101 314 128 137 211 Lands given by Statute to the King Annuity not extinguished 170 F Falsâ—fying a Recâ—very 271 Falsely imprisoned 124 Fee executed â—â—2 one cannot depend of another â—â—7 Fee-simple 155 Felony not before attainder 267 Cause of arrest for it 406 Feoffments 318 319 320 Fieri facias 276 147 83 Fine for vert c. 277. What Courts may fine c. 381 Fine levied by tenor of it 246 Parish not named 440 Record of it 103 129 307 148 351 179 First fruits 393 Forceable entry 45 Forfeiture of Lessor 105 141. Of a Right 321 See Treason Forgery 62 63 175 Form commanded by Statute must be observed 334 188 189 Formedon 239 302 163 Forrests chases c. 169 Frankalmoigne 396 Franchises 17 262 Usurped 91 Frankmarriage 18 19 20 Franktenement rule of it 9 In an upper chamber 44 Forfeiture 6 318 In case of Treason 34 307 308 310 315 316 Fraudulent conveyances and acts 6 7 285 161 191 192 G. GArdian in soccage 316 Gardens 6 Gavel-kind Plea 55 Grants Words apt 7 Of a common person 8 18 24 25 236 237 270 273 Restriction rule 237 To dig in his waste 18 Generall words 183 One thing passes with another 352 Things passe in grosse 127. By one Deed 129. Of the King 8 35 Where a mistake shall not abridge the fulnesse of words precedent 36 Favoured 37 38 262 136 425. See 414 415 416 417 421 422 423 425 Of a possibility 316 H. HAbeas corpus directed 44. See 198 199 Habendum 51 269 272 Habendum successive 220 Holidayes 218 Heire-speciall 3. Force of the word ib. 4 275 102 312 Homage 320 Husband and Wife acts of both or either 2 5 14 15 312 141 180 Wifes lease good 327 Gives land to her husband 143 Execution of the Wives Lease 26 See Reservation Husband may forfeit the Wives Copy-hold 345 May correct his Wife 215 I. IDeot 302 Jeofailes 56 57 194 Imbracery 240 Imprisonment 158 344 199. See Fine Improvement of common 97 Incidents 359 Ingrossers of corn 144 Innkeepers 345 346 Incroachment 24 411 Inquisitions 294 299 Indictment 45 46 65 67 272 84 157 400 346 For erecting a Cottage 383 For omitting the Crosse in Baptisme 119 Joynt 349 Contra pacem when 59 Infant 60 104 In his mothers belly 319 364 365 366. May grant c. 14 Brings Error to reverse a Fine 20 May release 30 31 Acknowledges a Statute c. 149 Appears c. 382 Promises to pay for his meat c. 219. Sues his Guardian discharges 214 Information 91 131 158
afterwards he granted the Reversion for eighty years reserving the ancient rent The question was Whether he had pursued his Authority because by the meaning of the Proviso a Power was That the Conusor should have the rent presently or when the Term did begin But the opinion of the Court was That he had done lesse then by the Proviso he might have done for this Grant of the Reversion doth expire with the particular estates for life But if he had made a Lease to begin after the death of the Tenants for life the same had been more then this grant of the Reversion And Cook chief Justice said That the Grantor may presently have an Action of debt against the Grantee of the Reversion for the rent But because it was not averred that any of the Cestuy que viei were alive at the time when the Grantor did distrain for the rent Judgement in the principall case was respited Trinit 10. Jacobi in the Common Pleas. 282 UPon the Statute of Bankrupts this Case was moved to the Court If a Bankrupt be endebted unto one in Twenty Pounds and to another in Ten Pounds and he hath a Debt due to him by Bond of Twenty Pounds Whether the Commissioners may assigne this Bond to the two Creditors jointly or whether they must divide it and assigne Twenty Marks to the one and Twenty Marks to the other And the Court was of opinion That it was so to be divided as the words of the Statute are viz to every Creditor a portion rate and rate like c. And then it was moved How they might sue the Bond whether they might joine in the Suit or not ad quod non fuit responsum by Cook Warburton Justice said That when part of the Bond is assigned to one and part to another that now the Act of Parliament doth operate upon it and therefore they shall sue severally for he said That by the custome of London part of a debt might be attached And therefore he conceived part might be sued for Trinit 10. Jacobi In the Common Pleas. 283 SPRAT and NICHOLSON's Case SPrat Sub-Deacon of Exeter did libel in the Spiritual Court against Nicholson Parson of A. pro annuali pensione of Thirty Pound issuing out of the Parsonage of A. and in his Libel shewed How that tam per realem compositionem quam per antiquam laudabilem consuetudinem ipse predecessores sui habuerunt habere consueverunt praedictam annualem penfionem out of his Parsonage of A. Dodderidge Serjeant moved for a Prohibition in this Case because he demands the said Pension upon Temporall grounds viz. prescription and reall composition But Cook Chief Justice and the other Justices were of opinion That in this Case no Prohibition should be granted for they said That the party had Election to sue for the same in the Spirituall Court or at the common Law because both the parties were Spirituall persons but if the Parson had been made a party to the Suit then a Prohibition should have been granted Vide Fitz. Nat. Brev. 51. b. acc And they further said That if the party sueth once at the common Law for the said Pension that if he afterwards sue in the Spirituall Court for the same that a Prohibition will lie because by the first Suit he hath determined his Election And Cook cited 22. E. 4. 24. where the Parson brought an Action of Trespass against the Vicar for taking of Under-Woods and each of them claimed the Tithes of the Under-Woods by prescription to belong unto him and in that Case because the right of the Tithes came in question and the persons were both of them Spirituall persons and capable to sue in the Spirituall Court the Temporal Court was ousted of Jurisdiction But he said That if an issue be joined whether a Chappel be Donative or Presentative the same shall be tryed by a Jury at the common Law And in this case it was said by the Justices That the Statute of 34. H. 8. doth authorize Spiritual persons to sue Lay-men for Pensions in the Spiritual Courts but yet they said That it was resolved by all the Judges in Sir Anthony Ropers case That such Spiritual persons could not sue before the High Commissioners for such Pensions for that Suits there must be for enormious Offences only And in the principall case the Prohibition was denyed Trinit 10. Jacobi in the Common Pleas. 284 Sir BAPTIST HIX and FLEETWOOD and GOT's Case FLeetwood and Gots by Deed indented did bargain and sell Weston Park being three hundred Acres of Lands unto Sir Baptist Hix at Eleven Pound for every Acre which did amount in the whole to Two thousand five hundred and thirty Pounds and in the beginning of the Indenture of Bargain and Sale it was agreed betwixt the parties That the said Park being much of it Wood-land should be measured by a Pole of eighteen foot and a halfe And further it was covenanted That Fleetwood and Gots should appoint one Measurer and Sir Baptist Hixe another who should measure the said Park and if upon the measuring it did exceed the number of Acres mentioned in the Indenture of Sale that then S. Baptist Hixe should pay to them acording to the proportion of 11l. for every Acre and if it wanted of the Acres in the deed that then Fleet ' and Gots should pay back to S. Baptist the surplusage of the mony according to the proportion of 11. l. for every Acre And upon this Indenture Sir Baptist Hixe brought an Action of Covenant against Fleetwood and Gots and assigned a Breach that upon the measuring of it it wanted of the Acres mentioned in the Deed 70 Acres And upon the Declaration the Defendants did demurre in Law and the cause of the Demurrer was because the Plaintiff did not shew by what measure it was measured And therefore Sherley Serjeant who was of Councel with the Defendants said that although it was agreed in the beginning of the Deed that the measure should be made by a Pole of 18 feet and a half Yet when they come to the covenants there it is not spoken of any measure at all and therefore he said it shall be taken to be such a measure which the Statute concerning the measuring of Lands speaks of viz. a measure of sixteen foot and a half to the Pole and he said that by such measure there did not want any of the said three hundred Acres mentioned in the Deed. Dodderidge Serjeant contrary for the Plaintiff and he layed this for a ground That if a certainty doth once appeare in a Deed afterwards in the same Deed it is spoken indefinitely the same shall be referred to the first certainty and to that purpose he vouched the case in Dyer Lands were given by a Deed to a man haeredibus masculis and afterwards in the same Indenture it appeared that it was haeredibus masculis de Corpore and therefore it was holden but an estate in
tail because the first words were indefinite and the later words were certain by which his intent did appeare to pass but an estate in tail He also cited 4. E. 4. 29. B. The words of an Obligation were Noverint universi per praesentes me I. S. teneri c. W. B. in ten pound solvendum eidem I. And it was holden by the whole Court that the same did not make the Bond to be void because it appeared by the promises of the Bond to whom the mony was in Law to be paid and the intent so appearing the Plaintiff might declare of a solvendum to himself and the word I should be surplusage And 22. E. 4. 9. A. B. The Abbot of Selbyes case Where the Abbot of Selby did grant annualem pensionem to B. ad rogatum I. E. illam scilicet quam I. E. habuit ad terminum vitae suae solvendum quousque sibi c. de beneficio provisum fuerit and it was holden by the whole Court in a Writ of annuity brought that sibi did referre to B. the grantee and not to I. E. And Cook Chief Justice said that the original Contract doth leade the measure in this Case and to that purpose he cited Kiddwellies case in the Commentaries where a Lease was made rendring Rent at Mich. at D. and if it were behind by a month after demand that the Lessor might reenter the demand must be at the first place which is in that case alledged to be certain viz. at D. The case was adjorned Trinit 10. Jacobi in the Common Pleas. 285 Sir Henry Lea and Henry Leas Case SIR Henry Lea was committed to the Fleet for the disobeying of a Decree made in the Court of Requests and having Suits depending in the Court of Common Pleas he prayed a Writ of habâ—as Corpus which was granted and upon the return of the Writ the cause of his Commitment appeared to be for a contempt for not performing of the said Decree and no other cause appeared in the return and the Court were of opinion that they could not deliver him because that no cause appeared in the return to warrant their delivery of him And the Court said that if the return be false yet they cannot deliver the party But the party may have his Action of false Imprisonment if the Imprisonment be not Lawfull But then it was shewed by Mountague Serjeant to the Court that the Decree was made in the Court of Requests upon a Bill containing this matter viz. That Henry Lea pretending Title unto Lands which Sir Henry Lea held by descent from his Unkle Sir Henry Lea shewed his Title to the Kings Majestie and thereupon the King upon the Petition of Henry Lea sends for Sir Henry Lea and had speech with him that he would give unto the said Henry Lea some recompence for his Title which he pretended to have to the said Lands And that thereupon the said Sir Henry Lea at the instance of the Kings Majestie did promise the King that if the said Henry Lea would not molest him for any of the said Lands which he had by descent from his said Unkle that then he the said Sir Henry Lea would give unto the said Henry Lea two hundred pound per Annum And for not performance of this promise made to the King Henry Lea Exhibited his Bill in the Court of Requests upon which the said Decree was grounded The said Sir Henry Lea answered that he did not know of any such promise he made to the Kings Majestie and pleaded to the Jurisdiction of the Court But upon a Certificate made by the Kings Majestie that he made such a promise unto him the Court of Requests made the said Decree which Certificate was mentioned in the body of the said Decree And Mountegue prayed that because it appeared that the said Henry Lea had remedy by way of Action upon the case at the common Law upon the said promise That this Court would grant a Prohibition in this case unto the Court of Requests and deliver the party from his Imprisonment But the Court said that they would advise of the Case because they never had heard of the like case But Cook Chief Justice advised Sir Henry Lea to agree the matter betwixt Him and his Kinsman Henry Lea For he said that he had learned a Rule in his youth which was this viz. Cum pare luctare dubium cum Principe stultum est Cum puero poena cum Muliere pudor Trinit 10. Jacobi in the Common Pleas. 286 GARVEN and PYM's Case GArven libelled against Pym for a Seat in the Church before the Bishop of Exeter in the spiritual Court there which by Appeal was removed into the Court of Arches And the Defendant did surmise in the Court of Common Pleas That he and his Ancestors have used time out of mind c. to have an Isle with a seat in the said Church for himself and his family and thereupon prayed a Prohibition But because it did appear upon Examination of the party himself That the Parish have alwayes used to repair the said Isle and seat the Court would not grant a Prohibition in this case for that proves that his Ancestors were not the Founders of the said Isle and Seat Also another man hath alwayes used to sit with him in the same seat which also proves that it doth not belong to him alone Cook chief Justice said That if a Gentleman with the assent of the Ordinary hath built an Isle juxta Ecclesiam for to set convenient Seats for him and his family and hath alwayes repaired the same at his own costs and charges In such case if the Ordinary place another man with the Founder without his consent in the same Seat that he may have his Action upon the Case against the Ordinary And if he be impleaded in the spirituall Court for such Seat that a Prohibition will lie And he said That the Heydons in Norfolk have built such an Isle next to the Church and placed convenient Seats there for them and their family But he said That if a man with the assent of the Ordinary set up a Seat in navi Ecclesiae for himselfe and another man doth pull up the same or defaceth it Trespas vi armis will not lie against him because the Freehold is in the Parson and he hath no remedy for the same but to sue the party in the Ecclesiastical Court And 9. E. 4. 14. the Dame Wiches Case was vouched where she brought an Action of Trespasse against the Parson for taking away her Husbands Coat-armour which was fixed to the Church at his Funerall and it was adjudged that the Action would lie and so will an Action in such case brought by the heir And Cook said That the Ordinary hath the onely disposing of Seats in the Body of the Church with which agrees the opinion of Hassey in 8. H. 7. And if the Ordinary long time past hath granted to a