extend ad veritatem facti which is set forth in the Avowry but only to reputation and so both stand together well enough Rent charge parcel of a Mannoâ— And that a Rent charge may be parcel of a Manor see 22 E 3. 13. 31. E 3. 23. in the Lord Tiptofts Case where it is ruled that title made to a Rent charge as parcel of a Manor is a good title and the Assize awarded upon it and in our Case the Reputation is enforced by the sute at the Court which was also reserved upon the said Feoffment together with the said Rent so as the intent of the parties to the Feoffment was that this Rent so reserved and accompanyed with the said sute shall be esteemed a Rent service and so parcel of the Manor and as to the continuance of Reputation it sufficeth if at the time of the bargain and sale aforesaid which was 26 H 8. it was by many reputed parcel of the Manor and he cited the Case of the Marquess of Winchester The King gave to his Ancestor the Manor of Dale and all lands then antea reputed parcel of the said Manor and in a Bill of Intrusion against the said Marquess he pleaded the grant with averment that the Land then antea reputed parcel Manerii praedict And because he did not shew certainly at what time the Land was reputed parcel of the Manor Iudgment was given for the Queen for it might be for any thing in his Plea that the said Land was reputed parcel of the said Manor before time of memory which Reputation would not serve but such Reputation ought to be within time of memory and understanding He cited also the Case of the Earl of Leicester King Edward the sixth seised of the Manor of Clibery of which a Wood was parcel granted the said Wood in Fee which afterwards escheated to the King for Treason Queen Mary granted the said Wood to another in Fee who granted it to the now Queen who granted the said Manor omnes boscos modo vel ante hac cognit vel reputat ut pars membr vel parcel Maner praedict to the Earl of Leicester and it was resolved in the Exchequer that by that grant the said Wood did pass to the Earl and Iudgment was given against the Queen Dy. 362 â— for it was part of the Manor in the time of E 6. at which time an t ' hac without the word unquam shall be extended ad quoddamcunque tempus praeteritum And Reputation needs not so ancient a Pedigree for to establish it for general acceptance will produce reputation As the house of the Lord Treasurer now called Tibould was of late a private Manor but now hath a new name by which it is known and that within these twenty years which is not so long a time as we have alleged for our Reputation and would pass in a conveyance by such name so None-such But as to Reputation I conceive that Reputation is not what this or what that man thinketh Reputation quid but that which many men have said or thought who have more reason to know it quaenam est inter illos reputatio There was a Case ruled in the Exchequer 13 Eliz. in a Bill of intrusion the Case was that King Hen. 6. was seised of a Manor to which a Neif was regardant who purchased Lands which the King seised and let by Copy as parcel of the said Manor and so continued until the time of E 6. who granted the same to Allice Hardwick and all Lands Tenements reputed parcel of the said Manor And it was adjudged that the said Land so purchased by the said Neif and demised by Copy did pass by the said grant to Hardwick And afterwards the same Term the Iustices without any solemn Argument shewed their opinions in the principal Case viz. That this Rent did not pass by the bargain and sale made as above by Anthony Wingfield to Bohan father of the Avowant for here in the premisses of the Avowry is not any matter set forth importing Reputation or by which it may appear that the Rent in question was ever reputed parcel of the said Manor but rather to the contrary and the bare averment of Reputation in the conclusion of the Avowry is not sufficient to induce Reputation But if the Avowant had set forth in his Avowry any special matter to induce the Court to conceive a Reputation upon the matter of the Avowry as to shew that the Bayliffs of the said Manor had always received the said Rent as parcel of said Manor and as Bayliffs of the said Manor had accounted for it as parcel of the Manor and that the Lessees of the said Manor had enjoyed the said Rent as parcel of the said Manor the same had been good matter to induce a Reputation to have incorporated the said Rent with the said Manor and so judgment was given against the Avowant and of such opinion as was affirmed by Wray was Anderson chief Iustice of the Common Pleas and Manwood chief Baron of the Exchequer XIX Cham and Dovers Case Pasch 26 Eliz. in the Kings Bench. Ejectione firmae IN an Ejectione firmae the Case was that one Michel was seised of the Manor of D. within which diverse parcels of Land part of the said Manor where customary Tenements demised and demisable by copy c. according to the Custom of the said Manor for one two or three lives within which Manor there was a Custom scil that the Lord of the Manor for the time being might grant Copy-hold estates for life in Reversion The Lord granted such Lands for life by copy in possession took a wife and granted the same Copy-hold to a stranger in Reversion for life and died the Copy-holder in possession died the Land demised by copy is inter alia assigned to the Wife for her Dower who had Iudgment to recover in a Writ of Dower who entred and made a Lease thereof to the Defendant who entred against whom the Lessee of the Copy-holder brought Ejectione firmae Custom ad pasturandum non ad colendum and all this matter was found by Verdict and further found that every Copy-holder of the said Manor might Lease his Copy-hold for a year ad pasturandum sed non ad colendum and that the Lease made to the Plaintiff was for a year ad pasturandum 1. Cro. 469. Wells versus Partridge Post 100. Popham Attorny General of Council with the Defendant took exception to the Declaration because the Plaintiff had declared a Lease at the common Law and the Iury have found a Lease by the custom which cannot stand together And such a Verdict doth not maintain the Declaration as if the Plaintiff had declared upon a Lease for years of Lands and the Iury found a devise for years c. but the exception was disallowed by the Court. As to the matter in Law he argued that the Tenant in Dower should
demanded the Rent at the Temple Church and for not payment thereof re-entred Dyer 142. Towse The re-entry of the Lessor was not lawful for by the said Reservation the Rent was not due until the twelfth day after Michaelmas for before that he cannot have an Action of Debt or distrein for it Conditions expounded liberally for the party who is to perform it and these words dierum solutionis are greatly material for conditions are odious in Law and if the words thereof be doubtful they shall be construed for the avail of him who is bound by it As in the case of 28 H. 8. 17. If I be bound to you upon condition to pay to you before the Feast of St. Thomas twenty pounds if there be in one year two Feasts of St. Thomas the latter Feast shall be my day of payment Wray This Rent is not due until the last day of the twelve days for neither debt or distress lieth for it then the day of payment mentioned in the condition ought to be the last day of the last twelve days and dict spatium shall be construed the same number of days and not the same days 4 Len. 91. And at last it was resolved and adjudged that the entry of the Lessor was not congeable but he ought to expect the latter day of the twelve days CXCIX Sir George Farmer and Brooks Case Trin. 31. Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared that time out of mind Prescription Owen 67. 1 Cro. 203. 8 Co. 125. c. there had been a Manor called Tocester and also there had been there a Town called Tocester and that all the Messuages Lands and Tenements within the said Town had been holden of the said Manor and that he is Lord of the said Manor and that he and all those whose estate he hath in the said Manor have used to have a Bake-house and a Baker to bake white bread and house bread for all the Inhabitants and Passengers there which bread hath been of a reasonable Assize and price and sufficient for all the Inhabitants and Passengers there but doth not say wholsom and that time out of mind c. no person had or used any Bake-house there but by the appointment of the said Lord of the Manor for the time being But that now the Defendant had erected a Bake-house unto the Nusance of the Plaintiff The Defendane shewed that at the time he had set up his Bake-house there were three Bakers there and shewed how that he was Apprentice to the Trade and that at the time he set up the said Bake-house for the benefit of all persons as it was lawful for him to do Morgan The matter only is if this prescription made by the Plaintiff be good or not It is to be considered if all prescriptions at the Common Law are one and if all prescriptions be guided by one rule and line And I conceive that prescription at the Common Law is but one And there are two points in prescriptions Vsage and Reasonableness but they are not guided by one line for some prescriptions are against strangers and then there ought to be consideration and recompence Some prescriptions against privies as between Lord and Tenant for there the Tenure is sufficient volenti non fit injuria For the first see 5 H. 7. 9. where in Trespass the Defendant doth justifie that the place where is his Free-hold and that he had a Foldage and that he and all those whose estate he hath c. have used that if any man depasture his Sheep with the Sheep of the Defendant for the day time that it was lawful at night to take all the Sheep and put them in his fold all the night and in the morning to put them out and the same was holden a good prescription for which the Plaintiff traversed the prescription And for the other see 11 H 7. 13 14. 21 H 7. 40. betwixt Lord and Tenant that every Tenant for every pound-breach should forfeit three pounds and see the Prior of Dunstables case 11 H. 6. 19. Br. prescription 98. The Prior declared that he and his Predecessors time out of mind c. had had a Market in D. every week one day and that Butchers and others who sold victuals should sell the same in the high street upon stalls of the Prior to them assigned and that the Prior should have one penny for every stall every day and shewed that the Defendant had sold in his house whereby the Prior had lost the advantage and profit of his stalls there And the same was holden a good prescription And on the other side the Defendant did prescribe that he and all house-holders of D. had used to sell in their houses The same was holden a naughty prescription See 43 E. 3. 5. and see also Suit ad moliendum upon prescription without tenure for peradventure he had not any Mill there before and now it is an ease to the neighbours Vide Register 105. where the Writ is Cum querens habeat ratione Dominii sui apud R. talem libertatem quod nullus in eadem villa uti debeat seu consuever Officio sine Mysterio tinctoris sine licentia ipsius querentis the same is good by way of prescription but is void by way of grant And there the Defendant is forbid to use the trade of his Dye-house whithin his Manor without his licence which appeareth upon the Writ which is in the Register which Register was made by the Iudgment and advise of the grave Iudges of the Law and there is remedy given for the like case as in the case at the Bar. And see F. B. 122. b. Sectam ad furnam and although such a manner of prescription should bind a stranger yet here our case is stronger for the Defendant is our Tenant And Hill. 15 Eliz. Rot. 166. an express Iudgment was given in such case for the Plaintiff Buckley contrary although here be a loss to the Plaintiff yet there is not a wrong as the case in 12 H. 8. 3. If I have an acre of Land adjoyning to your acre and my acre is drowned I may make a sluce to carry away the water and although that by so doing your acre is drowned yet I shall not be punished for it because it is lawful for me to make a trench in my own Land and then if it be any Nusance to you you may make a trench in your ground and so carry away the water until it come to a River or ditch See the case 11 H. 4. of Schoolmasters 200. for it is damnum absque injuria And it is against the liberty of the Common-wealth 1 Cro. 112 113. that liberty of Contracts be not free but restrained with Priviledges to one only Vide 22 H. 6. 14. If one erect a Mill neer to my Mill no Action lieth against him for it is for the use of the Kings Subjects
hoc that he was indebted to the Plaintiff antea vel post the said day aliquo modo upon which the Plaintiff did demur It was argued that the Traverse was not good for the consideration in Assumpsit is not traversable because it is but conveyance and amounts to the general Issue as in debt upon the sale of a Horse it is no Plea for the Defendant to say that no such Horse was sold to him Patridge If the conveyance be the ground of the Suit it is traversable an Action upon the Case against an Hostler it is a good Plea that he is not an Hostler 2 H. 4 7. See 26 H. 8. Br. Traverse 341. In an Action upon the Case the Plaintiff declared that whereas the Defendant habuit ex deliberatione of the Plaintiff certain goods the said Defendant in consideration of ten shillings Assumpsit eidem querenti promisit salvo Custodire c. Non habuit ex deliberatione is a good Plea. Godfrey The Defendant doth not answer the point of our Action which is the Assumpsit but only by way of Argument 11 E. 4. 4. In Trespass upon the Statute of 5 R. 2. by the Master of a Colledge and his confreers the Defendant doth justifie by reason of a Lease made by a Predecessor of the Plaintiff and his Confreers by their Deed under their Common Seal the Plaintiff Replicando saith That at the time of the making of the Lease there was no such Colledge and it was holden no Plea for it is no answer but by Argument Gawdy Iustice In all cases where the Defendant may wage his Law there the conveyance is traversable Wray The cause of the Action is the Assumpsit therefore the consideration is not traversable for it is not the point with which the Plaintiff is charged And it is common here that the Declaration in such Action upon the Case Traverse in consideration of divers sums of money without any more certainty is good which should not be good if the consideration were traversable but the consideration is to be given in Evidence and it is also common that in an Action upon the Case in Trover and Conversion the Trover is not traversable for the Conversion is the point of the Action Fenner Iustice The debt here is no cause of the Action but only the Assumpsit In debt upon Arbitrament the Arbitrament is traversable So in debt for Rent upon a Demise the Demise is traversable Antea 189. for the Arbitrament and Demise is the cause and ground of the Action At another day it was moved again and Gawdy mutata opinione said that consideration Executory is traversable As where one in consideration that he may marry my Daughter or of service promiseth to pay the same consideration is traversable contrary of a Consideration executed And afterwards Iudgment was given for the Plaintiff CCCXLI Estons Case Trin. 33 Eliz. In the Court of Wards ESton was seised of Lands in Fee holden of the King in chief 1 Cro. 243. and took a Wife seised of other Lands holden in Socage they have Inne and the Husband dieth and afterwards the Wife dieth Owen Serjeant conceived That the Queen should not have the Wardship of the Land of the Wife or the primer seisin of it And if the Husband had survived his Wife being Tenant by the Curtesie the Queen should not have Primer seisin of it after his decease Wray If the Father be seised of Lands holden in Soccage and the Mother of Lands holded in Knights service and the Husband over-lives his Wife being Tenant by the Curtesie the King shall have all Anderson denied that and he conceived That the opinion of Stamford is not Law and yet see 13 H. 4. 278. Where the Father is seised of Lands in chief and the Mother of other and the Father dieth and afterwards the Mother dieth both shall be in ward And it was said That if there be Grandfather Father and Son and the Father dieth seised of Lands holden in Socage and afterwards the Grandfather dieth seised of Lands in Knights service the Lands in Socage shall not be in ward Anderson held strongly That the Queen should have Primer seisin of the Lands of the Mother Wray contrary Quaere CCCXLII Ellis Hartops Case Trin. 33 Eliz. In the Court of Wards ELlis Hartop was seised of divers Lands whereof part was holden of the King in Knights service and devised two parts thereof to W. Denham and his Heirs to the use of T. his brother and his wife and afterwards to the use of the said T. and his Heirs males T. died in the life of the Devisor and afterwards a Son is born First it was agreed that a Devise might be to the use of another Then when Cesty que use dyeth in the life of the Devisor the Devisee shall take it and when a Son is born it shall go to him But if the use be void then the Devisee shall have it to his own use for every devise doth imply a consideration Coke was of opinion That the Son takes by descent when Cestuy que use to whom Land is devised doth refuse the use the Devisee cannot take it for he shall not have it to his own use for if the use be void the devise is also void And the use is void for Cestuy que use died in the life of the Devisor which see Bret and Rygdens case A man seised of three Acres bargains and sells one of them without shewing which and that before the Statute of 27 H. 8. The Bargainee dyeth before Election no Election descends to the Heir for then he should be a Purchasor And by Wray and Anderson The devise is void and it is all one with Brett and Rigdens case And by Anderson a man deviseth Lands to the use of one which use by possibility is good and by possibility not good If afterwards Cestuy que use cannot take the Devise shall be to the use of the Devisor and his Heirs CCCLXIII Weston and Garmons Case Trin. 33. Eliz. In the Kings Bench. Assize 1 Cro. 226. ASsize was brought of a Rent of fifty pounds per annum and the Plaintiff made his plaint to be disseised of his Free-hold in H. E. and H. W And shewed that John Vaughan and Amy his Wife who before was the wife of one Weston and Mother of Sir Henry Weston the Plaintiff in the Assize was seised of the said Manors of H.W. and H.E. lying in Barton and Kinton in Fee. And 18 Eliz. a Fine was levied betwixt Robert Vaughan and Miles Whitney Complainants and the said John Vaughan and Amy his Wife and Francis their Son Deforceants of the said two Manors inter alia per nomen of the Manors of H.E. and H.W. and of fifty Messuages three hundred Acres of Lands two hundred Acres of Meadow cum pertinentiis in the said Towns by which Fine the said Deforceants did acknowledge the right of the said Manors and Tenements to be
at last after many motions it was resolved by all the Iustices Averment â—here superâ—luous that the Averment aforesaid was superfluous ex abundanti for it had been sufficient for the Plaintiff to have assigned the breach of the Covenant in the not repairing the Messuage without any Averment de non appunctuando and if the house in the not repairing of which the breach of Covenant is assigned was appointed to be pulled down the same shall come in on the defendants part to whose advantage it trencheth for such appointment doth discharge the Covenant as to that In the same plea it was moved in stay of Iudgment that one Sharp Solicitor of the said Sir John in the said suit had given eight shillings to the Iurors mean betwixt the Charge and their Verdict and that matter was testified by the oaths of two men upon which the Court examined the said Sharp who upon his oath denied the matter and also the Foreman of the Iury to whom the mony was supposed to be given who upon his oath denied the same And it was moved if receipt of mony by any of the Iurors should make the Verdict void and by Wray it shall not for it is but a Misdemeanor which is punishable on the person of him who takes the mony But Gawdy and Ayliff Iustices the Verdict is void See 24 E 3. 24. 14 H. 7. 1. 20 H. 7. 30. And for that cause the Iudgment was reversed XXII Cordall and Gibbons Case Pasch 26. Eliz. Intr. Trin. 25. Eliz. Rot. 492. In the Kings Bench. IN an Ejectione firmae upon not guilty pleaded the Iury found the special matter viz. that one Hierom Heydon was seised of two Messuages whereof the Action is brought and came to Cordall the Plaintiff and prayed him to send him ten pounds Cordall asked him what assureance he would give him for the re-payment of it he answered that he would mortgage to him the said two Messuages whereupon Cordall lent him the mony and afterwards they both went to the said two Houses and being before the doors of them Heydon called Tenants at will of the Houses and said to them Sirs I have borrowed of this Cordall ten pounds upon these Houses and if I pay this mony at Michaelmas next I must have my Houses again and if not then I bargain and sell these Houses to Cordall and my Will is that you become his Tenants after which Heydon put the said Cordall into the Houses and seeing him in the Houses he put in the Keys of the said Cordall by the Windows c. And it was adjudged by the whole Court that this conveyance by word of mouth was good enough to pass the estate ut supra and the words of bargain and sale in this Case are as strong as of gift and grant See 38 E 3. 11. 43 E 3. 11. 27 E 3. 62. 28 E 3. 11. XXIII Richards and Bartlets Case Pasch 26 Eliz. Intr. Mich. 25 26 Eliz. Rot. 72. In the Kings Bench. DOrothy Richards Executrix of A. her former Husband Assumpsit brought an Action upon the Case upon a promise against Humfrey Bartlet and declared that in consideration of two weighs of Corn delivered by the Testator to the Defendant he did promise to pay to the Plaintiff ten pounds to which the Defendant said that after the Assumpsit the Plaintiff in consideration that the said two weighs were drowned by Tempest and in consideration that the Defendant would pay to the Plaintiff for every twenty shillings of the said ten pounds three shillings four pence scil in toto thirty three shillings four pence did discharge the said Defendant of the said promise and averred further that he hath been always ready to pay the said sum newly agreed upon which there was a demurrer And the opinion of the whole Court was clearly with the Plaintiff first because that here his not any consideration set forth in the Bar by reason whereof the Plaintiff should discharge the defendant of this matter for no profit but damage comes to the Plaintiff by this new agreement and the Defendant is not put to any labour or charge by it therefore here is not any agreement to bind the Plaintiff See 19 H. 6. Accord 1. 9 E. 4. 13. 12 H. 7. 15. See also Onlies Case 19 Eliz. Dyer then admitting that the agreement had been sufficient yet because it is not executed it is not any Bar And afterwards Iudgment was given for the Plaintiff XXIV Lendall and Pinfolds Case Pasch 26 Eliz. In the Kings Bench. IN Trespass for breaking of his Close by Lendal against Pinfold Trespass the Case was that two brake the Close and entred and did the Trespass the Owner of the land brought an Action of Trespass against one of them and had Iudgment and execution accordingly and afterwards brought Trespass against the other Bar. 1 Cro. 667. 2 Cro. 73. 1 Cro. 30. 31. and declared upon the same Trespass And by Ayliff Iustice it is a good Bar and he likened it to the case of one Cobham who brought an Action of Trespass of Assault and Battery and recovered and had execution and afterwards brought an Appeal of Mayhem against the same person upon the same matter the said Recovery and execution is a good Bar c. so here as to the breaking of the close but not as to the Entry But by Wray it is a good Bar for the whole and he likened it to the case of Littleton Pl. 376. A Release to one of the Trespassers shall discharge both Gawdy agreed in opinion with Ayliff XXV Kempe and Hollingbrooks Case Pasch 26 Eliz. In the Exchequer IN an Ejectione firmae for Tythes the case was upon the Statute of 18. Eliz. Cap. 6. By which it is enacted that no Masters Tithea and Fellows of any Colledge in Cambridge or Oxford shall make any Lease for life or years of any Farm or of any their Lands Tenements or other Hereditaments to the which any Tythes arable Land Meadow or Pasture doth or shall appertain unless the third part at least of the accient Rent be reserved and payed in Corn for the said Colledges c. otherwise every Lease without such Reservation shall be void c. If now the said Statute shall be construed to extend to Leases of such extraordinary pecuniary Tithes which are not natural or paid in kind It was argued that the said Statute is to be intended of Tithes in kind and also of such things to be demised which render Corn Hay c. But the Tithes in London which is the thing demised in our case doth not render any such thing Tithes in London but only mony according to the decree made for payment of Tithes in London in the time of E. 6. And although the words of the Statute be other Hereditaments to the which any Tithes c. Yet the said Statute doth extend to Tithes in gross but they ought to be
prohibition And the Court upon the first Motion conceived a prohibition should pass for if the grant be without deed nothing passed and then hath not Withy cause to claim these Tithes against the said Saunders And notwithstanding that Tithes are quodam modo spiritual things and so demandable in a Court of that nature yet now in divers respects they are become a Lay-fee and lay-things for a Writ of Assise of Mortdauncester and an Assise of novel disseisin lyes of them and a Fine may be levyed of them But it hath been doubted whether Tithes be devisable by Will But at another day the matter was moved and the Court was clear of opinion that a Consultation should be awarded for whether Withy hath right or not right to these Tithes Saunders of common right ought to pay his Tithes and he ought to sever them from the nine parts and whosoever takes them whether he hath right to them or no right Saunders is discharged But Saunders may prescribe in modo decimandi without making mention of any severance and may surmise that the Tithes do belong to I. S. with whom he hath compounded to pay such a sum for all Tithes and afterwards a Consultation was awarded XXX Stacy and Carters Case Trin. 26 Eliz. in the Kings Bench. STacy brought an Action of Trespass for breaking his Close against Walter Carter And declared of a Trespass in somers-Somers-Land in Tunbridge The Defendant pleaded that heretofore he himself brought an Assise of Novel disseisin against the now Plaintiff and supposed himself to be disseised of his Free-hold in Lee juxta Tunbridge and the Land where the Trespass supposed to be done was put in view to the Recognitors of the said Assise and further averred that the Land where c. and the Land then put in view is one and the same c. upon which there was a Demurrer Exception was taken to the form of the Demurrer because in the perclose and conclusion of the Demurrer these words are omitted Averment Et hoc paratus est verificare But as to that it was said by the Court that the Demurrer was well enough with or without such Averment in the conclusion of it which see oftentimes in the Commentaries c. and in the Book of Entries 146. the greater part of the Demurrers have not any such conclusion Another Exception was taken to the bar because the Defendant pleads that heretofore Walter Carter had brought an Assise against the now Plaintiff c. and that the Land put in view to the Recognitors of the Assise per praefatum Warrhamum Carter c. and the Land where c. is all one c. here is Warrhamum for Walterum and notwithstanding that it was after demurrer and not after verdict it was adjudged amendable and as to the matter of the bar it was said by the Defendants Council that recovery of Lands in one Town by Praecipe quod reddat is not a bar for Lands in another Town but where the recovery is by Assise it is otherwise for there the Plaint is general De lib. ten̄to and the Plaintiff shall recover per visum Juratorum and the view is the warrant of the Iudgment and Execution And therefore if a recovery in an Assise be pleaded in bar Not comprised is not any Plea against it as in the Case of recoveries upon a Praecipe quod reddat but not put in view and so not comprised c. which proves that the Record doth not guid the recovery but the view of the Iurors See 26 E 3. 2. Assise brought of Lands in D. the Tenant saith that he holdeth the said Lands put in view joyntly with A. not named in the Writ c. and sheweth the deed of Ioynt-tenancy which speaks of Tenements in B. and the plea holdeth good because he alledgeth the Ioynt-tenancy and the Lands put in view See 24 E 3. It was said on the Plaintiffs side that recovery in Lee juxta Tunbridge could not extend to Lands in Tunbridge no more than a recovery of Lands in one County can extend to Lands in another County See 23 E 3. 16. Assise of Novel disseisin brought of Lands in N. the Defendant pleads recovery in Assise c. brought before by him against the now Plaintiff of Lands in H. and the same Lands put then and now in view and adjudged no bar See also 16 E 3. 16. in an Assise of Tenements in W. the Tenant pleads a Recovery of the same Lands agaist one A. by Assise brought of Tenements in C. which was found by the Assise and that C. is a Hamlet of W. and the Plaintiff notwithstanding that recovery so pleaded had Iudgment for a recovery of Lands in one Town shall not be a bar in an Assise of Lands in another Town See Br. Tit. Iudgment 66. 10 E 3. And the whole Court was clear of opinion that the plea in bar was not good for in the Assise which is pleaded in bar in the principal Case the Tenant there who is now Plaintiff in this Action of Trespass pleaded Nul tort nul disseisin which is no plea as to the Free-hold in Lee juxta Tunbridge and therefore it cannot be like to the Case which hath been put of 26 E 3. for there the Tenant pleaded that he held the said Lands put in view joyntly for there he agreeth with the Plaintiff in the Lands demanded the which Lands are put in view but if in the Case at bar the Defendant being Plaintiff in the Assise the now Plaintiff being then Tenant had pleaded to the Land put in view in bar and the Plaintiff in the Assise had recovered now in this Action of Trespass the Plantiff in the Assise being Defendant in the Action of Trespass might well plead this Recovery in bar for by his plea in the Assise he hath tyed himself to the view and to the Land put in view but it is not so in the Case at Bar where the Tenant in the Assise pleads nul tort nul disseisin for there he doth not plead expresly to the Land put in view but to the supposal of the Plaintiff sc de libero tenemento in Lee juxta Tunbridge afterwards Wray with the assent of the other Iustices awarded that the Plaintiff should recover his damages See by Wray 44 E 3. 45. in Assise of Tenements in B. the Plaintiff pleads that he himself brought an Assise of the same Tenements and his plaint was of Tenements in E. and the same Tenements put in view and recovered and holden a good Plea because the Tenant hath said that the same Tenements were put in view and that took by Assise upon which the Plaintiff said not put in view and so not comprised XXXI Benicombe and Parkers Case Trin. 26. Eliz. In the Kings Bench. IN an Action of Trespass the Iury found this special matter that the Grandfather of the Plaintiff was seised and made a Feoffment to the use of himself for life
the remainder to the use of John Father of the Plaintiff in tail the Grandfather died the Father entred Feoffments and by Indenture by words of bargain and sale without any words of Dedi concessi conveyed the Lands to the use of A. in Fee and in the same Indenture was a Letter of Attorney to make Livery which was made accordingly and the said A. by the said Indenture covenanted that if the said John should pay before such a day to the said A. forty shillings that then the said A. and his Heirs would stand seised c. to the use of the said John and his Heirs and if the said John did not pay c. then if the said A. did not pay to the said John within four days after ten pounds that then the said A. and his Heirs from thenceforth shall be seised to the use of the said John and his Heirs c. and the said John covenanted further by the said Indenture to make such further assurance as the Council of the said John should advise Each party failed of payment John levied a Fine to A. without any consideration it was adjudged upon this matter a good Feoffment well executed by the Livery Hob. 151. Dyer 361. a More 194. Post 195 196 197. More 35. b. notwithstanding that the words of the conveyance are only by bargain and sale and that the Covenant to be seised to the new uses upon payment and not payment being in one and the same deed should raise the use upon the contingency according to the limitation of it and Iudgment was given for the Plaintiff accordingly XXXII Bedows Case Trin. 26 Eliz. In the Kings Bench. IN an Action of Debt upon a Bill sealed against one Bedow he demanded Dyer of the Bill which was Memorandum that I John Bedow have agreed to pay to R. S. the Plaintiff twenty pounds and thereupon there was a Demurrer first that the Deed wanted the words In cujus rei testimonium c. but notwithstanding that the Court held the Deed good and said so it was lately adjudged Another matter was because the words of the contract are in the preter Tense I have agreed but notwithstanding that exception the Plaintiff had Iudgment to recover as by Wray these words dedi concessi according to the Grammatical sence imply a gift precedent but yet they are used as words of a present conveyance Iudgment was given for the Plaintiff XXXIII Marsh and Smiths Case Pasch 27. Eliz. In the Common Pleas. 1 Cro. 38. 39. GEorge Marsh brought a Replevin against Smith and Paget who make Conusans as Baylies to Ralph Bard and upon the pleading the Case was That Sir Francis Askew was seised of the Mannor of Castord in his Demesne as of Fee which Mannor did extend unto Daston North-kelsey Grants Mannor 2 Len. 41 42. South-kelsey D. and C. and had demesnes and services parcel of the said Mannor in each of the said Towns and so seised granted totum manerium suum de North-kelsey in North-kelsey to the said Bard and his Heirs and granted further all his Lands Tenements and Hereditaments in North-kelsey and to that grant the Tenants in North-kelsey did attorn And the Land in which the said Distress was taken is in North-kelsey the only question in the case was if by this grant to Ralph Bard a Mannor passed or not And the case was argued by the Iustices And Periam Iustice argued That upon this grant no Mannor passed for before the grant there was no Mannor of North-kelsey or in North-kelsey therefore no Mannor can pass but the Lands and services in North-kelsey shall pass as in gross for they were not known by a Mannor but for parcel of a Mannor And a Mannor is a thing which cannot be so easily created Mannor what it is for it is an Hereditament which doth consist of many real things and incorporated together before time of memory common reputation cannot be intended of an opinion conceived within three or four years but of long time And appendancy cannot be made presently but by a long tract of time As an Advowson in gross cannot be made by an Act appendant and the Queen her self by her Letters Patents cannot make a Mannor at this day à multo fortiori a subject cannot and the Queen cannot by her Letters Patents without an Act of Parliament annex a Mannor to the Dutchy of Lancaster which see 1 Ma. Dyer 95. And where it is usual that the Queen doth grant Lands Reputation tenendum de manerio suo de East Greenwich in communi soccagio if upon the death of such a Grantee without heir the said Land doth revert unto the Queen in point of Escheat the said Land shall not be parcel of the said Mannor for the Land was not parcel of the Mannor in truth but in reputation And he cited a case that the Lord Sturton was seised of the Mannor of Quincamore and was also seised of the Mannor of Charleton which was holden of the said Mannor of Quincamore The Lord Sturton was attainted of Felony and afterwards Queen Mary gave the said Mannor of Quincamore to Sir Walter Mildmay cum omnibus suis juribus parcellis it was adjudged that the Mannor of Charleton did pass for it is now become parcel of the Mannor of Quincamore and I grant that things which go with the Land shall pass well enough As if the Queen grant to three Coparceners of three Mannors 1 Inst 122. a 32 â—â— 6 11. the liberty of Warren in all the said three Mannors they afterwards make partition so as each Coparcener hath a Mannor and the one of them grants her Mannor the Grantee shall have Warren Grants of the King. But if the Queen grant a Leet ut supra and the Coparceners make Partition and each of them hath a Mannor she shall not have also a Leet but the Leet which was grantted doth remain in common and there shall not be there upon such partition several Leets And also I grant that in the case of two Coparceners of a Mannor if to each of them upon partition be allotted demeans and services each of them hath a Mannor for they were compellable to make partition by the common Law being in by descent See 26 H. 8. 4. 9 E. 4. 5. contrary of Ioynt-tenants for they are in by purchase and were not compellable by the common Law to make partition and therefore upon partition betwixt them a Rent cannot be reserved for the equality of the partition And in every Manor a Court is requisite for a Court Baron is incident to a Manor Court Baron but a Court cannot at this day be founded or erected but it ought to be of long time And in our Case no Court hath ever been holden in North-kelsey And if I be seised of the Manor of B. which extends into C. and B. and I grant my Manor of B. in D. now a Manor
things 1. Leases the number of the years 21 non ultra 2. antiquus redditus vel eo amplior yet in reason and good understanding we ought to think that the intent of the Act was that the said Manor should now come to the said Lady Frances surcharged with Leases in Reversion or to begin at a day to come for if by this Act the said Earl might make a Lease to begin three months after by the same reason he might make a Lease to begin twenty years after and also to begin after his death It hath been objected that the Lord Treasurer had a Commission to make Leases of the Queens Lands and that by virtue thereof he made Leases in Reversion I know the contrary to that for every such Lease is allowed by a Bill assigned and not by the ordinary Commission aforesaid the words of our Act are Dimissiones facere pro termino 21. annorum that shall be meant to begin presently As if I lease to you my Lands for one and twenty years it shall be intended to begin presently and he cited the Case betwixt Fox and Collier upon the Statute of 1 Eliz. cencerning Leases made by Bishops That four years of a former Lease being in being the Bishop leased for one and twenty years the same was a good lease notwithstanding the former lease for the lease began presently betwixt the parties And it hath been adjudged that a lease for years by a Bishop to begin at a day to come is utterly void And he cited the Case of the late Marquess of Northampton who by such an Act of Parliament as ours was enabled to make leases of the Lands of his Wife for one and twenty years and of the said Lands an ancient lease was made before the said Act which was in esse and before the expiration thereof he made a lease by virtue of the said Act to commence after the expiration of the former lease and that lease was allowed to be a good lease warranted by the said Statute because that the first lease which was in esse was not made by force of the said Act but if the said former lease had been made by virtue of the said Statute the second lease had been utterly void XLV Trin. 28 Eliz. In the Kings Bench. Copy-hold Surrender by Attorney not good A Copy-holder of the Manor of the Earl of Arrundel did surrender his customary Lands to the use of his last Will and thereby devised the Lands to his youngest Son and his Heirs and died the youngest Son being in prison makes a Letter of Attorney to one to be admitted to the Land in the Lords Court in his room and also after admittance to surrender the same to the use of B. and his Heirs to whom he had sold it for the payment of his debts And Wray was of opinion that it was a good surrender by Attorney but Gawdy and Clench contrary 3 Cro. 218. 9 Co. 75. and by Gawdy If he who ought to surrender cannot come in Court to surrender in person the Lord of the Manor may appoint a special Steward to go to the prison and take the surrender c. and by Clench Lessee for years cannot surrender by Attorney but he may make a deed purporting a surrender and a letter of Attorney to another to deliver it XLVI Troublefield and Troublefields Case Trin. 28 Eliz. In the Kings Bench. Dy. 337. b. Co. 1 Inst 15. 2. b. 52. 245. b. 252. 6. Post 51. Entry THe Case was that a Copy-holder did surrender to the use of his Will and thereby devised the Land to his Wife for life the remainder over to his son in tail and died the Wife entred and died a stranger did intrude upon the Lands and thereof made three several Feoffments to three several persons he in the Remainder entred upon one of the said three Feoffees in the name of all the Lands so devised and made a lease of the whole Land And by Clench and Wray it was a good Entry for the whole and by consequence a good lease of the whole Gawdy contrary Note all the Lands were in one County See 16 Eliz. Dyer 337. 9 H. 7. 25. XLVII Parmort and Griffina's Case Trin. 28 Eliz. In the Kings Bench. IN Debt upon an Obligation by Parmort against Griffina a Merchant-stranger the Defendant pleaded Debt that the Obligation was made upon condition for the performance of certain Covenants contained within certain Indentures and shewed what c. and alledged further that in the said Indenture there is a proviso that if aliqua lis vel controversia oriatur imposterum by reason of any clause article or other agreement in the said Indenture contained that then before any sute thereupon attempted the parties shall choose four indifferent persons for the ending thereof which being done the Indenture and Obligation shall be void And in fact saith that Lis controversia upon which the Action is brought groweth upon the said Indenture upon which there was a demurrer in Law. And because the Defendant hath not shewed specially upon what controversie or strife and upon what article certain The Court was clear of opinion that the Bat was not good And also the Court was of opinion Proviso taken strictly that the said Proviso did not extend to subject and submit the breach of every Covenant or Article within the said Indenture to the Arbitrament of the said four persons but only where strife and controversie doth arise upon the construction of any Covenant c. within the said Indenture so as the Defendant ought to have shewed such matter which fell within the Arbitrament by the meaning of the said Indenture and Iudgment was given against the Defendant XLVIII Partridge and Partridges Case Mich. 28 29. Eliz. In the Common Pleas. IN Dower by Partridge against Partridge the Case was Dower that Land was given to the Father for life the reversion to his Son and Heir for life the remainder to the right Heirs of the body of the Father The Father and Son joyn in a Feoffment to the Vncle in Fee scil to the Brother of the Father The Vncle takes a Wife the Father dieth the Son being his Heir in tail the Vncle dieth without issue so as the Land descendeth to the Son as Heir to his Vncle against whom the Wife of the Vncle brought Dower It was moved if the Son being Herein can to his Father and Heir also to his Vncle for the Fee descended be now remitted for then no Dower accrueth to the Wife of the Vncle for the estate of which she demands Dower is gone but if the livery in which the Son joyned with his Father be the livery of the Son Remittâ— the same lies in his way in the impediment and preventing of the Remitter so as during his life he shall be adjudged seised of the Lands in Feesimple by descent from his Vncle Then Dower lyeth for the same
most valuable part of the services of the Copy-holder The Statute of 1 E. 6. of Chantries doth extend to Copy-hold by the general words Lands Tenements and Hereditaments for otherwise the Proviso which excepts Copy-holds were not necessary And in our Statute the words are Lands Tenements and Hereditaments which are forceable words which proves that our exposition to extend it to Copy-holds is proper and agreeable to the Statute and this in the first branch of it for Copy-hold is some Land Tenement or Hereditament the clause in this branch of the Statute is and also all other the Lands Tenements and Hereditaments liable to such seisure c. the same is to be meant of such Lands which are bound with clause of revocation of which is spoken in the former part of this Statute He who departs out of the Realm against the Statute of 5 R. 2. shall forfeit his goods and thereby his debts also The King grants omnia bona catalla felonum Debts of Felons shall pass Ergo Copy-holds also 2 Lâ—n 56. Post 201. 202. by the name of Lands Tenements c. as well as debts by the name of goods In our Case the meaning of the Statute was that the Queen should have two parts of the whole estate of the Recusant be it Copy-hold Ancient demesne c. If upon the Statute of Bankrupts a Copy-hold estate be sold to the King the King shall pay the Rent but shall not do any of the services and in so much the Lord shall be prejudiced patiatur etiam hic rather than Recusants should not be punished and it is not a strange thing in Law that the Lord of a Copy-holder should be prejudiced for the offence of his Tenant as where a Copy-holder is outlawed the King shall have the profits of his Copy-hold Lands and the Lord hath not any remedy for his Rent CXXVII Stebbs and Goodlacks Case Pasch 30 Eliz. In the Kings Bench. BEtwixt Stebbs Goodlack the Case was the Parson of Letcome in the County of Berks libelled in the Spiritual Court for Tithes Fraud shall not avoid payment of Tithes the Defendant shewed that the custome of the Town of Letcome is that the Parson shall have for his Tithes the tenth Land sowed with any manner of corn and he shall begin his reckoning always at the first Land which is next to the Church c. The Parson shewed that the Defendant by fraud and covin sowed every tenth Land which belonged to the Parson ut supra very ill and with small quantity of corn and did not dunge or manure it as he did the other nine parts by means whereof whereas the other nine every of them yielded eight Cocks the tenth yeilded but three Cocks and for this matter the Parson libelled in the Spiritual Court and confessed the custome but for abusing of the custom prayed to have his Tythes in kind the Defendant prayed a prohibition and the Parson afterwards a consultation And the opinion of Wray Iustice was that the custom was against common reason and so void but if it be a good custom then the Parson shall have the Action upon the case CXXVIII Rumney and Eves Case Pasch 30 Eliz. In the Kings Bench. Copy-holder IN Ejectione firmae by Jane Rumney against Lucie Eve it was holden that if customary Land do descend to the younger Son by custom and he enters and leaseth it to another who takes the profits and after is ejected Poph. 39. 4 Co. 22. That he shall have an Ejectione firmae without any admittance of his lessor or presentment that he is heir For which the Defendant shewed that there were thirty years incurred betwixt the death of the Father and the making of the Lease so that here is supina negligentia which shall disable his person to make any demise quod fuit concessum In answer of which it was said that the Lessor at the time of the death of his Ancestor was but of the age of two years and that after his full age no Court had been holden for a long time and that at the first Court that was holden which was of late he prayed to be admitted but the Steward refused to admit him and the same was holden a good excuse of his negligence And it was holden that the Plaintiff ought not to shew that the Lease is warranted by the custom 1 Cro. 469. 483. 717. 728. Ante 16. but that shall come of the other side and so it had been lately adjudged which Wray granted And by him if a Copy-holder surrender in extremis to the use of himself for life c. If he shall be well again the surrender shall stand 4 Len. 30. 31. 8 Co. 100. for he hath reserved an estate to himself It was further holden in this Case that if a Copy-holder dieth his Heir within age he is not bound to come at any Court during his non-age to pray admittance or to tender his Fine Also if the death of the Ancestor be not presented nor proclamations made he is not at any mischeif although he be of full age CXXIX Saint-John and Petits Case Pasch 30 Eliz. In the Kings Bench. IT was covenanted betwixt Saint-John and Petit that Saint-John should present Petit to the Church of A. and that afterwards Petit should lease the Parsonage to Saint-John or to any other person named by him and that the said Petit should not be absent by eighty days and that he should not resign and Petit was bound to perform these Covenants Petit is presented to the Benefice Saint-John brought an Action upon the Obligation pretending that he could not enjoy his lease by reason of the absence of the said Parson c. And the Lease was made to the Curate at the nomination of Soint-John The Parson said that the Obligation is void by the Statute of 14 Eliz. cap. 11. See the Statute All Leases c. made by any Curate shall be of no better force than if it had been made by the beneficed Parson himself Tanfeild by 13 Eliz. 20. When a Parson leaseth to his Curate who leaseth over The Statute doth not make the Lease void by any absence of the Parson but of the Curate by forty days Quaere For that it seemeth that by the Statute of 14 Eliz. the Curate cannot lease c. CXXX Gates and Halliwels Case Pasch 30 Eliz. In the Kings Bench. BEtwixt Gates and Halliwel the Case was one having two Sons 3 Len. 55. devised that his eldest Son with his Executors should take the profits of his Lands until his youngest Son should come to the age of two and twenty years and that then the said youngest Son should have the Land to him and the Heirs of his body It was holden clearly by the whole Court that the eldest Son should have Fee in the interim until the youngest Son came to the said age CXXXI Prowse and Carys Case Pasc 30 Eliz. In the
And at another day Wray said Dy. 179. that partition by Tenants in common without deed wheresoever it is made is good but in this case it appears that the parties who made the partition were in the house for they were Tenants in common of the Messuage and a close adjoyning to it and made partition that one should have the house 6 Co. 12. and the other the close so as they were not upon the close when they made the partition and then it was void for the close and if for the close then also for the house And Iudgment was given accordingly CXXXVII Cook and Songats Case Pasch 30 Eliz. In the Kings Bench. IN an Action upon the case by Cook against Songat the Plaintiff declared Quod cum quaedam Lis and controversie had been moved betwixt the Plaintiff Lord of the Manor c. and the Defendant claiming certain Lands parcel of the said Manor to hold it by copy and whereas both parties submitted themselves to the Iudgment and Arbitrament of I. S. Counsellor at Law concerning the said Land and the title of the Defendant to it The Defendant in consideration that the Plaintiff promised to the Defendant that if the said I. S. should adjudge the said Copy to be good and sufficient for the title of the Defendant that then he would suffer the Defendant to enjoy the said Land accordingly without molestation The Defendant reciprocally promised the Plaintiff that if the said I. S. should adjuge the said Copy not sufficient to maintain the title of the Defendant that then he would deliver and surrender the possession of the said Land to the Plaintiff without any sute And shewed further that I. S. had awarded the said Copy utterly insufficient c. yet the Defendant did continue the possession of the Land c. And by Godfrey here is not any consideration But by Gawdy the same is a good and sufficient consideration because it is to avoid variances and sutes And Iudgment was given for the Plaintiff CXXXVIII Pawlet and Lawrences Case Pasc 30 Eliz. In the Kings Bench. GEorge Pawlet brought an Action of Trespass against one Lawrence Parson of the Church of D. for the taking of certain Carts loaded with Corn which he claimed as a portion of Tythes in the Right of his Wife and supposed the Trespass to be done the seven and twentieth of August 29 Eliz. upon Not guilty it was given in evidence on the Defendants part that the Plaintiff delivered to him a Licence to be married bearing date the eight and twentieth of August 29 Eliz. and that he married the Plaintiff and his said Wife the same day so as the Trespass was before his title to the Tythes And it was holden by the whole Court that that matter did abate his Bill But it was holden that if the Trespass had been assigned to be committed one day after that it had been good but now it is apparent to the Court that at the time of the Trespass assigned by himself the Plaintiff had not Title and therefore the Action cannot be maintained upon that evidence for which cause the Plaintiff was Non-suit CXXXIX Sir John Braunches Case Mich. 30 Eliz. In the Kings Bench. Forfeiture IN the Case of Sir John Braunch it was said by Cook that if a Copy-holder be dwelling in a Town long distant from the Manor a general warning within the Manor is not sufficient but there ought to be to the person notice of the day when the Court shall be holden c. For his not coming in such case cannot be called a wilful refusal Copy-holder So if a man be so weak and feeble that he cannot travel without danger so if he hath a great Office c. these are good causes of excuse It was also holden that if a Copy-holder makes default at the Court and be there amerced although that the amercement be not estreated or levyed yet it is a dispensation of the forfeiture Gawdy Iustice If the Copy-holder be impotent the Lord may set a Fine upon him and if he will not pay the Fine then it is reason that he shall forfeit his Land. Egerton Sollicitor Warning to the person of the Copy-holder is not necessary for then if the Lord of a Manor hath one Copy-holder of it dwelling in Cornwal and another in York c. the Lord ought to send his Bayliff to give notice of the Court to them which should be very inconvenient and by him continual default at the Court doth amount to a wilful refusal And by the whole Court general warning within the Parish is sufficient 1 Cro. 353. 505. 506. for if the Tenant himself be not Resient upon his Copy-hold but elsewhere his Farmer may send to him notice of the Court And it was further given in evidence that Sir John Braunch had by his Letter of Attorney appointed the Son of his Farmer his Attorney to do the services for him due for his said Copy-hold And it was holden that such a person so appointed might essoin Sir John but not do the services for him for none can do the same but the Tenant himself CXL Wilkes and Persons Case Mich. 30 Eliz. In the Kings Bench. JOhn Wilkes and Margery his Wife and Thomas Persons brought Trespass Quare clausum fregit herbam suam messuit foenum suum asportavit Trespass ad damnum ipsius Johannis Margeriae Thomae And exception was taken that it was not the Hay of the Wife nor she was not damnified by it but her Husband Wray Iustice the Declaration is good enough 1 Cro. 96. Record for although it be not good for the Hay yet clausum fregit herbam messuit makes it good And Iudgment was given for the Plaintiffs CXLI Atkinson and Rolses Case Mich. 30 Eliz. In the Common Pleas. IN an Action upon the case by Atkinson against Rolfe the Plaintiff declared that the Defendant in consideration of the love which he â—ore unto A. his Father did promise that if the Plaintiff would procure a discharge of a Debt of I. S. which his said Father owed to the said I. S. that he would save the Plaintiff harmless against the said I. S. And declared further that he had discharged the Father of the Defendant from the said Debt and is become bounden to the said I. S. in an Obligation for the payment of the said Debt upon which Obligation the said I. S. hath sued the Plaintiff and hath recovered and had execution accordingly and so hath not been saved harmless c. It was objected that the Declaration was not good because the Plaintiff hath not shewed in his Declaration that he had given notice to the Defendant of the said Obligation or of the suit brought against him but that was not allowed but the Declaration was holden to be good notwithstanding the exception Shuttleworth if I be bound to make to you such an assurance as I. S. shall devise I am bound
of the Informer And afterwards by Award of the Court it was ruled that that Entry by the Attorney is not any Barr quoad the Informer so if the Queen be Nonsuit so the Nonsuit of the Informer is no Barr against the Queen And Wray said that such was the opinions of Anderson and Gawdy Iustices c. CLXII The Queen against Lewis Green and others Trin. 30 Eliz. In the Kings Bench. Intrat Hill. 30 Eliz. Rot. 10. AN Information for the Queen against Lewis Green and others Grants of the King. 2 Roll. 51. 1 Co. 46. The Case was King E. 6. was seised of the Manor of Stepneth and twenty acres of Lands in Stepneth called Stepneth Marsh and of another Marsh also called Stepneth Marsh and granted unto the Lord Wentworth and his Heirs the Manor of Stepneth in the County of Midd. Nec non mariscam in Stepneth appel Stepneth Marsh in com praedict nec non omnia terr ten eidem Manerio five premissis pertinent And if twenty Acres called Stepneth Marsh not parcel of the said Manor pass or not was the Question Cook that they shall pass Here this grant doth consist of three parts 1. The grant of the Manor 2. Nec non mariscum in Stepneth 3. Nec non omnia terras tenementa dicto Manerio sive praemissis pertinen And by the second clause these twenty acres shall pass be the same parcel or not and the latter words cannot refer to that for it is certainly expressed before And the case lately agreed in the Court of Wards betwixt Bronker and Robotham was cited which was That the King being seised of the Manor of Sandridge and Newnam parcel of the possessions of the Monastery of Saint Albans and part of the Manor of Newnam extended into the Parish of Sandridge and the King granted the Manor of Sandridge nec non omnia terras tenementa sua in Sandridge dicto nuper Monasterio pertinen nec non omnia terras tenementa sua dicto Manerio de Sandridge pertinen By which grant although that the latter clause doth restrain it to the Manor of Sandridge yet the general words of the second clause shall extend to make pass all the whole Manor of Newnam which extended into the Parish of Sandridge a Decree was in the said Court accordingly Hob. 175. 303. Dy. 207. 6 Co. 39. At another day the case was argued and the case put to be thus King E. 6. was seised of the Manor of Hackney and Stepneth in the County of Midd. within which was a great Marsh called Stepneth Marsh parcel of the Manor of Stepneth which the King had by exchange of the Bishop of London and there were also twenty acres of Lands which were lying in Stepneth Marsh and were known by the name of Stepney Marsh late parcel of the possessions of the Priory of Grace and granted unto the Lord Wentworth and his Heirs Dominia sive Maneria sua de Hackney Stepney nec non mariscos suos de Stepney in Stepney praedict nec non omnia Maneria terras tenem mariscos dictis Maneriis aut caeteris praemissis pertinen If these twenty acres pass in the general words in the first Nec non or if the words in the second Nec non dictis Maneriis pertinen doth restrain the generality of the first words was the question And by Phillips the twenty acres do not pass for the grant of the King shall be always taken to a common intent And because here the King hath these Marshes by several titles that Marsh only shall pass which by general entendment shall be intended to pass scil the great Marsh which was in truth parcel of the Manor of Stepney and not the twenty acres which the King hath by a special title although that ex vi termini the grant may extend unto it Also the grant of the King shall be taken secundum intentionem Regis Grants of the King taken according to his intent and not in deceptionem and here it appearth that the intent of the King was not that these twenty acres should pass i. the King grants Maneria sua terras and all Lands c. iisdem pertinen but it is not part of any thing pertinen to those twenty acres therefore his intent was not to pass them Secondly the grant is to have them as fully as the Bishop of London had them without mentioning of the Prior. Thirdly as fully as the Bishop had granted them to us but the Bishop had not granted these twenty acres to the King. Fourthly in the Letters Patents the King recites the value of the Manor of Hackney and Stepney but no value of the twenty acres Quaere what difference there is betwitxt Stepney Marsh and the Marsh of Stepny As to the first the grant is iisdem ita praemissis pertinen which word praemissis includes the premisses or otherwise should be void Secondly the words as the Bishop had and as amply as we have from the Bishop are suplusage nihil operatur by them And if the King had not the same of the Bishop it is not material but they shall pass notwithstanding because by a special name As if the King grants to me Manerium de Dale quod à nobis nuper concelat fuit and in truth it ws not concealed yet it shall pass by his special name But if the grant had been Proviso that if the said Manor were concealed c. the same had been good for it is good by way of Proviso but not by reference As to the valuation the same is not material for who can restrain the bounty of the King. 29 E. 3. 7. and 8. The King granted omnes Advocationes pertinend to such a Priory quas nuper concessimus patri of the Patentee although the King had not ever made such a grant yet it is a good grant to the Sons causa qua supra Gawdy Iustice conceived that the twenty acres did pass and he confessed the case betwixt Bronkor and Robotham to be good Law for there the intention is fully that all appertaining to the Monastery whether it were parcel of the Mannor of Newnam or of Sandridge passeth 6 E. 6. 8. Dyer A man leaseth all his Meadows in A. containing ten acres whereas in truth they are twenty acres all passeth c. And if the King grant the Manor of D. to A and further saith Damus concedimus so freely as I. S. had it and I. S. never had it yet the grant is good And as to the misrecital of the value the same is helped by the Statute Clench Iustice to the same intent and the Iury hath found that the twenty acres are parcel of Stepney Marsh Wray to the same intent Against express words no favour shall be given to the King. And note that the Marshes pertaining to the Manor are in the third clause ergo the Marsh in the second clause shall be intended a Marsh in gross or
not set down any place or time of the notification of his contentment for the same is traversable Gawdy The Issue here is non Assumpsit Assumpsit and therefore that matter is out of the Book Cook If one assume to pay twenty pounds to another upon request although the Defendant plead non Assumpsit yet if the place and time of request be not shewed Iudgment many times hath been stayed for no Action without a Request so here without notification of his contentment no Action therefore he ought to shew it Gawdy The ground of this Action is the Assumpsit but that cannot be certain without Declaration and thereof notice ought to be given to make certainty of the duty but not to enforce the promise but in our case without a Request Assumpsit will not lye But here it being but conveyance the certainty of the time and place is not necessary to be shewed but the general form shall serve for it is but inducement As if a man will plead a devise of goods to him and assent of the Executors to take them he need not to shew the time and place of the assent Gawdy at another day said that Iudgment ought to be given for the Plaintiff the Assumpsit is the ground and cause of the Action and the shewing of the contentment is only to reduce the Action to certainty And Iudgment was given for the Plaintiff CLXVIII Musket and Coles Case Trin. 30 Eliz. In the Kings Bench. WIlliam Musket brought an Action upon the Case against Cole 1 Cro. 13. and declared that in consideration that the Plaintiff had payed unto the Defendant forty shillings for the Debt of Symon his Son the Defendant promised to deliver to him omnes tales billas Obligationes in which his Son was bounden to him which thing he would not do and it was found by Verdict for the Plaintiff And it was moved for stay of Iudgment because the Plaintiff had not averred in his Declaration that the said Defendant had Bills or Obligations in which Simon his Son was bounden to the Defendant Averment for if there were none then no damage And see Onlies Case 19 Eliz. Dyer 356. D. in consideration that the Plaintiff had expended divers sums of money circa the businesses of the Defendant promised c. Exception was taken to that Declaration by Manwood and Mounson Iustices because it was not shewed in what businesses certain and betwixt what persons Gawdy The Plaintiff here is not to recover the Bills or Obligations but damages only and therefore needeth not to alledge any Bills in certain And 47 E. 3. 3. A. covenants with B. to assure unto B. and his Heirs omnia terras tenementa quas habet in such Counties and for not assurance an Action of Covenant was brought and the Plaintiff declared that the Defendant had broken the said Covenant and that he had required the Defendant to make a Feoffment unto him of all his Lands and Tenements in the said Counties and the plea was not allowed for the Land is not in demand but only damages to be recovered See also 46 E. 3. 4. and 20 E. 3. And in the principal case the Plaintiff had time enough for the shewing to the Iury what Bills or Obligations for the instructing of the Iury of the damages CLXIX English and Pellitary and Smiths Case Trin. 30 Eliz. In the Kings Bench. Assault and Battery 1 Cro. 139 140. IN an Action of Trespass of Assault and Battery and wounding The Defendants say that they were Lessees of certain Lands and the Plaintiff came to the said Lands and took certain Posts which were upon the Lands and they gently took them from him S. pleaded that he found the Plaintiff and P. contending for the said Posts and he to part them mollite put his hands upon the Plaintiff which is the same c. The Plaintiff replyed De injuriis suis propriis absque tali causa per ipsos P. S. allegat upon which issue was joyned which was found for the Plaintiff It was moved in arrest of Iudgment that here was not any issue for the Plaintiff ought severally to reply to both pleas aforesaid for here are several Causes of Iustification and his Replication absque tali causa Nomen Collectivum Post 139. Dy. 182. doth not answer to both Cook This word Causa is nomen Collectivum which may be referred to every Cause by the Defendants alledged reddendo singula singulis and their Iustifications are but one matter and the Defendants might have all joyned in one plea. Wray Both pleas depend upon one matter but are several causes for two justifie by reason of their Interest and the third for the preservation of the Peace And by him and the whole Court although it be not a good form of pleading yet by reasonable construction this word Cause shall be referred to every cause and so the pleading shall be maintained And afterwards Iudgment was given against the Plaintiff CLXX Cater and Boothes Case Trin. 30. Eliz. In the Kings Bench. Intrat Hill. 30 Rot. 58. or 581. IF a Writ of Covenant the Plaintiff declared that the Defendant by his deed bearing date the first of October 28 Eliz. did covenant that he would do every act and acts at his best endeavour to prove the Will of I. S. or otherwise Covenant that he would procure Letters of Administration by which he might convey such a Term lawfully to the Plaintiff which he had not done licet saepius requisitus c. The Defendant pleaded that he came to Doctor Drury into the Court of the Arches and there offered to prove the Will of the said I. S. but because the Wife of the said I.S. would not swear that it was the Will of her Husband they could not be received to prove it Vpon which it was demurred in Law. It was moved by Williams that the Action doth not lie for there is no time limited by the Covenant when the thing should be done by the Defendant for which he hath time during his life for as much as it is a collateral thing See 15 E. 4. 31. if there be not a Request before but admit that the Covenant had been to perform upon request Request then the Plaintiff in his Declaration ought to have shewed an express request with the place and time of it for that is traversable See 33 H. 6. 47 48. 9 E. 4. 22. Gawdy If the Covenant had been eypresly to do it upon request there the request ought to be shewed specially But when a thing upon the exposition of the Law only is to be done upon Request such Request alledged generally is good enough And by Wray the Covenantor hath not time during his life to perform this Covenant but he ought to do it upon request within convenient time but in some case a man shall have time during his life as where no benefit shall be to any of the
Will he cited Chicks case 19 Eliz. 357 and 23 Eliz. 371. Dyer At another day it was argued by Cook That both the Houses pass and the words take the profit do not restrain the general words before viz. All my Lands and Tenements but rather expounds them sci such profits that they might take of a Reversion cum acciderit for it may be that the Brother shall die within ten years And he cited the case 34 H. 6. 6. A man seised of diverse Reversion upon estates for life devises them by the name of omnium terrarum tenementorum which were in his own hands and by those parols the Reversion did pass and yet the Reversion to speak properly was not in his hands and if the Brother had died in the life of the devisor they had clearly passed and then his death or life shall not alter the case And he resembled the case to the case in 39 E. 3. 21. The King grants to the Abbot of Redding That in time of vacation the Prior and Monks shall have the disposition of all the possessions of the said Abbey ad sustentationem Prioris Monachorum 3 Cro. 290. and if in the time of vacation they shall have the Advowsons was the question for it was said That advowsons could not be to their sustentation But yet by the better opinion the grant of the King did extend to Advowsons for it shall be intended such sustentation as Advowsons might give Godfrey Our Case is not like to the case of 34. H. 6. for there the Devisor had not any thing in possession and therefore if the Reversion did not pass the devise should be utterly void Gawdy conceived that the house in possession only passed for the devise extends to such things only whereof the Profits might be taken but here is not any profit of a Reversion Clench and Wray contrary The intent of the devise was to perform the Will of his Father and also of his own Will and in case the house in possession was not sufficient to perform both the Wills all shall pass and therefore the devise by favorable construction is to be taken largely so as the Wills might be throughly performed and also the devise is general and further all his Lands and Tenements which are not restrained by the Subsequent words to take the profits for to have and to hold and to have and to take the profits is all one CCLV. Slugge and the Bishop of Landaffs Case Trin. 31 Eliz. In the Kings Bench. SLugge libelled against the Bishop of Landaff in the Ecclesiastical Court because where he was presented by the Dean and Chapter of Gloucester to the Church of Penner the Bishop did refuse to admit him and now the Bishop sued a Prohibition and shewed Prohibition Quod non habetur talis Rectoria cum cura animarum in eadem diocesi sed perpetua vicaria And by Popham a Prohibition doth not lye but the matter ought to be determined in the Ecclesiastical Court and when he who is presented to the same Church whether it be a Church or not shall be tried in an action of trespass and the like matter was ruled Mich. 14. Eliz. betwixt Weston and Grendon who was presented by the Queen and it was holden that because institution and admission do belong to the Ecclesiastical Court and not to the Kings Court that no Prohibition should lye and therefore he prayed a Consultation And note That the Defendant in the Prohibition did not demur formally upon the suggestion for the Iudges use if the suggestion be not sufficient to maintain the Prohibition to grant a Consultation without any formal demurrer upon the Suggestion if the insufficiency of the Suggestion be manifest Trial. which was granted by the whole Court. Cook That a Consultation ought not to be granted for whether there be such a Rectory or not shall be tried here So 2 H. 4. 30. Prior or not Prior 49 E. 3. 17 18. Wife or not Wife but never accoupled in loyal matrimony by the Bishop Ante. 53. 54. 44 E. 3. So within or without the Parish 50 E. 3. 20. So 45 E. 3. Quare Impedit 138. In a Quare Impedit no such Church within the County Afterwards at another day Popham put the case Slugge was presented to the vicaridge of Penner the Bishop refused to admit him and admitted one Morgan Bletthen unto the Parsonage of Penner at the presentment of the Lord St. John Slugge sued the Bishop for contumacy per duplicem querelem The Bishop said Non habetur talis vicaria upon which matter he sued a Prohibition and he conceived That the Prohibition did not ly for a Vicar is but he that gerit vicem Personae to supply his place in his absence so as the same is a spiritual matter which ought not to be tried here Also the libel is to have Admission and Institution and the other matter ariseth by their Plea sci Quod Rectoria de Penner est Ecclesia cum cura animarum absque hoc quod habetur talis Vicaria and so it is but an incident to the principal matter wherefore it shall be tried there and he prayed a Consultation Cook We have shewed That in the time of E. 3. one L. was seised of the Manour of Penner to which the Church of Penner is appendant and we alledge presentments from the time and we convey it to the Lord St. John which now is and they would now defeat us by this surmise That there is no such Church with cure of Souls which is triable here Popham the libel doth contain nothing but contumacy in the Bishop in that he hath not admitted Slugge and the other matter comes in the Replication and afterwards by assent of the parties a Consultation was granted quoad institutionem of Slugge only but that they should not proceed further CCLVI. Fennick and Mitfords Case Pasch 31 Eliz. Rot. 154. In the Kings Bench. Moâ—e 284. 2 Co. 91. THe Case was A man seised of Lands in Fee levieth a Fine to the use of his wife for life the remainder to the use of his eldest son the heirs males of his body the Remainder to the use of the right heirs of the Conusor The Conusor makes a Lease for a thousand years to B. the eldest son dieth without issue male having issue a daughter the Conusor dieth the wife afterwards dieth the eldest son enters and leaseth the Lands to the Plaintiff Atkinson That upon this conveyance a Reversion was left in the Conusor although by the fine all is conveyed out of the Conusor and so as it hath been objected the use limited to the right heirs of the Conusor is a new thing For it is to be observed When a man is seised of Lands he hath two things the Land or the Estate and secondly the use which is the profits and if he make a Feoffment without consideration by that the estate and possession passeth
appendant to it and conveyed the said capital Messuage and Advowson to the King by the dissolution and from the King to the said Thomas Long who so seised without any Deed did enfeoff the Plaintiff of the said Manor and made Livery and Seisin upon the Demesnes And that the said Thomas Long by his Deed made a grant of the said Advowson to the said Strengham and afterwards the Free-holder attorned to the Plaintiff And by the clear opinion of the whole Court here is a sufficient Manor to which an Advowson may be well appendant and that in Law the Advowson is appendant to all the Manor but most properly to the Demesnes out of which at the commencement it was derived and therefore by the attornment afterwards within construction of the Law shall have relation to the Livery the Advowson did pass included in the Livery And the grant of the advowson made mesne between the Livery and the attornment was void and afterwards Iudgment was given and a Writ to the Bishop granted for the Plaintiff CCXC. Mich. 32 33 Eliz. In Communi Banâ—o Debt A Made a Bill of Debt to B. for the payment of twenty pounds at four days scil five pounds at every of the said four days and in the end of the Deed covenanted and granted with B. his Executors and Administrators that if he make default in the payment of any of the said payments that then he will pay the residue that then shall be un-paid and afterwards A. fails in the first payment and before the second day B. brought an action of Debt for the whole twenty pounds It was moved by Puckering Serjeant Sâ—y 31. 32. 1 Cro. 797. That the Action of Debt did not lye before the last day encurred And also if B. will sue A. before the last day that it ought to be by way of covenant not by Debt But by the whole Court the action doth well lye for the manner for if one covenant to pay me one hundred pounds at such a day an action of Debt lyeth a fortiori Owen 42. 1. 2 Rol. 523. when the words of the Deed are covenant and grant for the word covenant sometimes sounds in covenant sometimes in contract secundum subjectum materiae CCXCI. Lancasters Case Mich. 32 33 Eliz. In Communi Banco Roll. Tit. Covenant pl. 72. AN Information was against Lancaster for buying of pretended Rights Titles upon the Statute of 32 H 8. And upon not guilty pleaded It was found for the Plaintiff it was moved in arrest of Iudgment because the Informer had not pursued the Statute in this that it is not set forth that the Defendant nor any of his Ancestors or any by whom he claimed have taken the profits c. and the same was holden a good and material Exception by the Court although it be layed in the Information that the Plaint himself hath been in possession of the Land by twenty years before the buying of the pretended Title for that is but matter of argument not any express allegation for in all penal Stat. the Plaintiff ought to pursue the very words of the Stat. and therefore by Anderson It hath been adjudged by the Iudges of both Benches that if an Information be exhibited upon the Stat. of Vsury by which the Defendant is charged for the taking of twenty pounds for the Loan and forbearing of one hundred pounds for a year there the Information is not good if it be not alledged in it that the said twenty pounds was received by any corrupt or deceitful way or means And in the principal Case for the Cause aforesaid Iudgment was arrested CCXCII Bagshaw and the Earl of Shrewsburies Case Mich. 32 33. Eliz. In the Common Bench. BAgshaw brought a Writ of Annuity against the Earl of Shrewsbury for the arrerages of an Annuity of twenty Marks per annum Annuity granted by the Defendant to the Plaintiff Pro Consilio impenso impendendo The Defendant pleaded that before any arrerages incurred he required the Plaintiff to do him Service and he refused The Plaintiff by replication said that before the refusal such a day and place the Defendant discharged the Plaintiff of his Service c. And the opinion of the Court was that the Plea in Bar was not good for he ought to have shewed for what manner of Service to do the Plaintiff was so retained and for what kind of Service the Annuity was granted and then to have shewed specially what Service he required of the Plaintiff and what Service the Plaintiff refused Another matter was moved If the discharge shall be peremptory and an absolute discharge of the Service of the Plaintiff and of his attendance so that as afterwards the Defendant cannot require Service of the Plaintiff And by Walmesly Iustice it is a peremptory discharge of the Sevice for otherwise how can he be retained with another Master and so he should be out of every Service VVindham contrary For here the Plaintiff hath an Annuity for his life and therefore it is reason that he continue his Service for his life as long as the Annuity doth continue if he requirreth But where one is retained but for one or two years then once discharged is peremptory and absolute CCXCIII Matheson and Trots Case Mich. 31 32. Eliz. In the Common Bench. BEtwixt Matheson and Trot the Case was Sir Anthony Denny seised of certain Lands in and about the Town of Hertford 2 Len. 190. holden in Socage and of divers Mannors Lands and Tenements in other places holden in chief by Knights-service and having Issue two Sons Henry and Edward by his last Will in writing devised the Lands holden in Hertford to Edward Denny his younger Son in Fee Devises and died seised of all the Premisses Henry being then within age After Office was found without any mention of the said Devise the Queen seised the Body of the Heir and the possession of all the Lands whereof the said Sir Anothony died seised and leased the same to a stranger during the Minority of the Heir by force and colour of which Lease the Lessee entred into all the Premisses and did enjoy them according to the Demise And the Heir at his full age sued Livery of the whole and before any entry of the said Edward in the Land to him devised or any entry made by the said Henry the said Henry at London leased the said Lands by Deed indented to I.S. for years rendring Rent by colour of which the said I.S. entred and paid the Rent divers years to the said Henry And afterwards by casualty the said Henry walked over the Grounds demised by him in the company of the said I. S. without any special entry or claim there made I.S. assigned his Interest to I.D. who entred in the Premisses and paid the Rent to the said Henry who died and afterwards the Rent was paid to the Son and Heir of Henry
was moved in arrest of Iudgment that it appeareth upon the Plaintiffs own shewing that the Plaintiff hath the Free-hold and therefore he ought to have an Assize but the same was not allowed and therefore the Plaintiff had Iudgment CCCXXXIV Kensam and Redings Case Trin. 33. Eliz. In the Kings Bench. THe Case was Grants of the King 1 Cro. 244. Hob. 170. That the Queen by her Letters Patents granted the Site of the Manor of Brokeley lying in W. and all the Lands Pastures Woods Vnder-woods and Hereditaments parcel or appertaining to the said Site exceptis omnibus grossis arboribus boscis maremio and further in the said Letters Patents there was a Proviso that the Lessee should have sufficient House-boot and Hedge-boot c. And if notwithstanding the said Exception the Lessee should have the Vnderwoods was the question And it was argued that the Lessee should have subbois i. e. Vnderwoods for that is granted by express words and the exception extends only grossis arboribus for this word grossis in the exception extends to all that which follows Gawdy Iustice If it were in the case of a common person it is clear that upon such matter the Vnderwoods are not excepted 7 E. 6. Dyer 79. A Lease is made of a Mannor except Timber and great Woods the Vnderwoods shall pass Fenner Iustice The Proviso that the Lessee should have House-boot shews the Queens intent that the Vnder-woods should not pass Wray If this word bois in the exception should not extend to Vnder-woods it should be vain and signifie nothing which should be hard in the Case of the Queen CCCXXXV Trin. 33. Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared of Trover and of a Bag of mony and the conversion of it Trover and Conversion 1 Cro. 97. 201 555 693. The Defendant pleaded that the Bag of mony was delivered to him as a pawn to keep until A. and B. were agreed which of them should have it and pleaded further that A. and B. were not yet agreed who of them should have it for which cause he kept it absque hoc that he converted it to his own use upon which the Plaintiff did demur in Law It was moved that the Conversion is never traversable Wray Generally Conversion is not traversable but upon such special matter as is here Or if A. lend money to B. and B. delivereth a thing of the value to A. in pawn now the Conversion is traversable see the same case 4 E. 6. Br. Action upon the Case 113. so here Fenner agreed with Wray CCCXXXVI The Bishop of Lincoln and Cowpers Case Mich. 33. Eliz. In the Kings Bench. Prohibition THe Bishop of Lincoln sued a Prohibition against Cowper who had libelled against him in the Spiritual Court for Tithes out of the Manor of D. Tithes 1 Cro. 216. Post 331 332. And the Bishop did suggest that he and all his Predecessors had been seised of the said Manor and that as long as it was in their possessions had been discharged of Tithes and shewed that in the time of E. 6. the said Manor was conveyed to the Duke of Somerset in Fee and afterwards was re-granted to the Bishop and his Successors It was moved That the Prescription was not good because de non decimando And admit that the Prescription be good that same is interrupted by the seisin of the Duke of Somerset and although that the Manor be re-assured to the Bishop of Lincoln yet the Prescription is not revived as Homage Ancestrel if it be once in a Forrain Seisin although it be re-assured yet it is not revived But by Wray Gawdy and Fenner The Prescription is good in the Case of a Spiritual person but not in the case of a common person And they all were clear of opinion that the Prescription is not gon by this Interruption for Tithes are not issuing out of the Lands neither can Vnity of possession extinguish them neither are they extinguished by a release of all right of Land c. See for this Case Co. 11. part of his Reports in the Case of Pridle and Napper CCCXXXVII Dethick King of Arms Case 33. Eliz. In the Kings Bench. Indictment 1 Cro. 224. Yelv. 34. Noy 250. Misnosmer in an Indictment WIlliam Dethick against Garter King of Arms was indicted upon the Statute of 5 E. 6. for striking in the Church-yard For that the said Dethick in Pauls Church-yard in London struck I.S. It was moved If Cathedral Churches be within the meaning of the Statute The Court was clear of opinion that they were And afterwards the Defendant pleaded that before the Indictment found he was created and crowned by the Letters Patents of the Queen which he shewed chief and principal King of Arms and it was granted by the said Letters Patents that he should be called Garter and that that name is not in the Indictment and demanded Iudgment The Kings Attorney by Replication said That by the Law of Arms and Heraldry every one who is made King of Arms before he receives his Dignity ought to be led betwixt two Officers of Arms by the Arms before the Earl Marshal of England or his Deputy and before him are to go four Officers of Arms whereof the one is to bear his Patent another a Collar of Esses the third a Coronet of Brass double guilt fourthly a Cup of Wine and his Patent shall be read before the Earl Marshal and afterwards his Coronet shall be set upon his Head and the Collar of Esses about his neck and afterwards the Wine poured upon his Head And that the Defendant had not received these Ceremonies for which cause he is not King of Arms nor to be called upon to which the Defendant did demur in Law. Broughton argued for the Defendant and he took Exception to the Replication because it is pleaded there that secundum legem Heraldorum Garter upon his Creation ought to receive c. of which Law this Court cannot have Conusance and therefore the Replication ought to be scil Secundum legem Angliae If in Appeal the Defendant wage Battel although that belongs unto Arms and Heraldry yet it shall be pleaded according to the Law of the Land and shall not speak of the Law of Arms. So if an Infant be made a Knight and he be to plead in discharge of his Wardship he shall plead according to the Law of the Land and yet the degree of a Knight belongs to the Law of Arms 11 E. 3. Dower against the Earl of Richmond who was also Duke of Britain who pleaded to the Writ That he was Duke of Britain and not so named in the Writ but the Court did not regard it for they cannot have knowledge of it so not here of the Law of Heraldry Also this Court cannot write to the Heralds to certifie it as they may to the Marshal of the King or to the Bishop But we have sufficiently
Nonage of every Heir but admitting that the Custom were void yet this Action doth not lye for the Defendant hath not entred and taken the profits as Prochein amy in which Case although he was not Prochein amy c. he is chargeable Oâ—â—â—â— Rep. 36 â—3 84. as Prochein amy according to his Claim but here he claimeth by the Custom and Grant of the Lord and not in the right of the Heir and therefore it was adjudged in this time of this Quaere that if one entreth into Lands claiming by Devise where in truth the Land devised is entailed he should not be charged in accompt c. CCCLVIII 20 Eliz. In the Common Pleas. NOte It was holden by the whole Court Exposition of the Statute of 32 and 34. Of Wills. That the Statute of 32 34 H. 8. of Wills did not extend to Lands in London but that the devise of the whole is good And if Houses in London parcel of the possessions of Abbies came to the Crown by Dissolution and he grants them over to hold in chief by Knights service these Lands are devisable But it was holden That the said Statutes as Acts executed extended to Lands in London and shall be good but for two parts And if a man hath Lands in tail and in Fee-simple which are of double the value of the Lands in tail and deviseth all his Lands all the Land in Fee-simple shall pass Dyer One seised of three Manors the one in Capite in Fee and two in Socage in tail and deviseth all his Land in Capite it is good against the King for all Capite Land and he shall be tied to have the Lands in Socage but it shall not bind the Heir And a devise of the third part where all is devised is void as well against the Heir as against the King. And he said That if a man be seised of twenty Acres in Socage and ten Acres in Capite and deviseth two parts of his Lands it is reasonable to say That all the Socage Lands shall pass but if the devise was of two parts of all his Lands it is otherwise for this word All implies that the two parts shall be per my per tout as well Capite as Socage i. e. It was argued by Fenner That the Lands in London are now devisable as they were before the Statute for if the Devisee of Lands in London be disturbed he shall have Ex gravi Querela otherwise it is of Lands at the Common Law and if an Assize of Mortdancester be brought of Lands in London it is a good Plea to say That the Lands are devisable But in an Assise of Mortdancestor of Lands at the Common Law it is not any Plea And if a man gives Lands at the Common Law i. e. not devisable by the Common Law he cannot devise the Reversion for the Statute shall not do wrong to the person i.e. to the Donee who there shall lose his Acquittal But of Lands devisable by custom it is otherwise And if Land in a Burrough was devisable for life by the Custom and afterwards came the Statute of 23 H. 8. which made all Lands devisable now that Land is devisable for life by the Custom and the Reversion by the Statute CCCLIX 20 Eliz. In the Common Pleas. IN an Action of Wast of Wast assigned in a Wood Wast the Iury viewed the Wood only without entring into it And it was holden that the same was sufficient for otherwise it should be tedious for the Iury to have had the view of every stub of a Tree which had been felled Yet Meade Iustice said That if Wast be assigned in several corners of the Wood then the Iury is to have the view of every corner but contrary where Wast is assigned in the whole Wood Vieâ— And if Wast be assigned in every Room of a House the view of the House generally is sufficient And Dyer Iustice said That if Wast be assigned in several places and of some of them the Iury had not the view of that they may find no Wast done CCCLX Sir Thomas Lees Case 20 Eliz. In the Common Pleas. IT was holden per Curiam That whereas Sir Thomae Lee was seised of a Manor Election and aliened the Manor except one Close parcel of the said Manor called Newdick and there were two Closes parcel of the said Manor called Newdick the one containing nine Acres and the other containing three Acres That the Alienee should not chuse which of the said Closes he would have but the Alienor or Feoffor should have the Election which of the said Closes should pass CCCLXI. 20 Eliz. In the Common Pleas. TEnant in tail the Remainder in tail c. Tenant in tail in possession Fines levied by Tenant in tail in Remainder 3 Cro. 211. makes a Lease for three lives according to the Statute of 32 H. 8. and afterwards dieth without issue he in the Remainder before any Entry levieth a Fine the same is good for by the death of Tenant in tail without issue the Free-hold is vested in him in the Remainder in tail And of that opinion was the whole Court. CCCLXII Ferrand and Ramseys Case 20 Eliz. In the Common Pleas. IN an Ejectione firmae brought of a House in London the Defendant pleaded That long time before the Lessor of the Plaintiff had any thing c. One Ann Ramsey was seised in Fee and died seised and that the same descended to William Ramsey as Son and Heir to the said Ann who was disseised by Israel Owen who leased to the Plaintiff upon whom the said William Ramsey did re-enter The Plaintiff Replicando That the said Ann did not die seised said That before the Ejectment one Robert Owen was seised and died seised and from him descended the said House to Israel Owen as Son and Heir of the said Robert absque hoc that the said Israel did disseise the said Ann upon which they were at issue and at Nisi prius in London it was given in Evidence of the Defendants part That Crofton and Langhton were seised in Fee of the said Messuage and by Deed indented conveyed it to one John Ramsey Robert Dakins and four others and their Heirs upon condition that the said Feoffees their Heirs or Assigns should pay to the said Ann and her Heirs six pounds thirteen shillings and four pence And also should enfeoff the said Ann if to the same they were required by the said Ann in her life or within four days next following such Request in Fee unto the use of the said Ann and her Heirs cum quando ad hoc per eandem Annam requisit fuerint and if the said Ann died before such Request that then the said Feoffees or their Heirs should enfeoff such issues of the said Ann or such other persons which the said Ann should name cum quando ad hoc per eandem Annam requisit fuerint or within four days after such
afterwards that this murder is dispunishable notwithstanding the Statute of 2 Ed. 6. CCCLXIV The Queen and Braybrooks Case Pasch 25 Eliz. In the Kings Bench. 3 Co. 1 2 c. THe Queen brought a Writ of Error against Braybrook The Case was this That King Ed. 4. was seised of the Manor of Marston and gave the same to Lionel Lord Norris and A.M. and the Heirs of the body of the Lord the Remainder to H. Norris in Tail L and A. entermarry L. suffered a common Recovery against himself only without naming the said A. Hen. Norris is attainted of high Treason by Act of Parliament and by the same Act all his Lands Tenements Hereditaments Rights Conditions c. the day of the Treason committed or ever after c. Hen. Norris is executed Lionel dieth without issue the Queen falsified the said Recovery for one moiety by Scire facias because Anne who was joint-tenant with Lionel was not named party to the said Recovery and afterwards the Queen granted to the Lord Norris Son of the said Hen. Norris Manerium suum de Merston omnia jura in eodem and now upon the said Recovery the Queen brought a Writ of Error and it was argued by Egerton the Queens Sollicitor that this right to a Writ of Error is such a right as is transferred to the Queen by the Act of Parliament for the words are omnia jura sua quaecunque and here is a right although not a present right yet a right although in futuro so it is a right of some quality as A. Tenant in Tail the Remainder in Tail to B.A. makes a Feoffment in Fee B. is attainted of high Treason and by such Act all his Lands c. given to the King. A. dieth without issue the Queen shall have a Formedon in the Remainder and although the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura in eodem yet by such general words a Writ of Error doth not pass which See 32 H. 8. Br. Patents 98. And also this Action rests in privity of record and cannot be displaced from thence but by Act of Parliament see Br. Chose in Action 14. 33 H. 8. for when the King will grant a thing in Action he ought in his Patent to recite all the circumstances of the matter as the Right and how it became a Right and because the Queen here doth not make mention of this Right as of the Entail the Recovery and the Attainder for that cause the Right doth not pass The Case betwixt Cromer and Cranmer 8 Eliz the Disseisee was attainted of Treason the Queen granted to the Heir of the Disseisee all the Right which came unto her by the Attainder of his Ancestor nothing passed Causa qua supra And always where the King grants any thing which he cannot grant but as King that such a grant without special words is to no purpose Coke contrary he agreed the Case put by Egerton for at the time of the Attainder B. had a Right of Remainder but in our Case Hen. Norris had not any Right but a possibility of a Right of Action i.e. a Writ of Error And he said that this Writ of Error is not forfeitable for it is an Action which rests in privity no more than a condition in gross as a Feoffment in Fee is made upon condition of the party of the Feoffor who is attainted ut supra This word Right in the Act of Attainder shall not transfer this Condition to the Queen and of the Act of Attainder to Hen. Norris it is to be conceived That the makers of the Act did not intend that by the word Right every right of any manner or quality whatsoever should pass to carry a Condition to the Queen and therefore we ought to conceive that the makers of the Act did not intend to touch Rights which rested in privity And as to the Grant of the Queen to the Lord Norris of the Mannor of Merston Et omnia jura sua in eodem he conceived that thereby the Right of the Writ of Error did pass for it is not like Cranmers Case but if in the said Case the Land it self had been set down in the Grant it had been good enough as that Cranmer being seised in Fee of the Manor of D. was there of disseised and so being disseised was attainted of high Treason now the Queen grants to his Heirs totum jus suum in his Manor of D c. and so in our Case the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura sua in eodem c. at another day it was moved by Plowden that this Right of Writ of Error was not transferred to the Queen by the Act but such Right might be saved to a stranger c. the words of the Act are omnia jura sua and this word sua is Pronomen possessionis by which it is to be conceived that no Right should pass but that which was a present Right as a Right in possession but this Right to a Writ of Error was not in Hen. Norris at the time of his Attainder but it was wholly in him against whom the erroneous Iudgment was had and therefore if in a Praecipe quod reddat the Tenant vouch and loseth and Iudgment is given and before Execution the Tenant is attainted by Act of Parliament by words ut supra and afterwards he is pardoned the Demandant sueth for Execution against the Tenant now notwithstanding this Attainder the Tenant may sue Execution against the Vouchee and afterwards Wray chief Iustice openly declared in Court the opinion of himself and all his companions Iustices and also of all the other Iustices to be That by this Act of Parliament by which all Lands Tenements Hereditaments and all Rights of any manner and quality whatsoever Henry Norris had the day of his Attainder or ever after Lionel then being alive and over-living the said Hen. Norris that this Writ of Error was not transferred to the Queen And that the said Act by the words aforesaid could not convey to the King this possibility of right for at the time of the Attainder the Right of the Writ of Error was in Lyonel and Hen. during the estate tail limited to Lyonell had not to do with the Land nor any matter concerning it And Iudgment was given accordingly And it was holden That he in the Reversion or Remainder upon an Estate tail might have a Writ of Error by the common Law upon a Recovery had against Tenant in tail in Reversion CCCLXV Mich. 25 26. Eliz. In the common Pleas. Copy-holder IN Trespass brought by a Copy-holder against the Lord for cutting down and carrying away his Trees c. It was found by special Verdict That the place where c. was Customary lands of the Plaintiffs holden of the Defendant and that the Trees whereof c. were Chery Trees de
293 306 362 383 387 409 436 Construction of them 16 42 To Executors to sell 38 42 78 254 To an use 342 Diminution 28 Distress 16 64 78 315 338 Discontinuance of suit 142 Discontinuance of Lands and Estate 150 157 172 Distent 154 163 Where it takes away Entry 293 Disseisin 163 Dower 48 71 118 119 187 233 383 Of Gavelkind 83 182 431 Dutchy Lands 307 The Kings prerogative in them 15 E. EJectione firmae 331 Not of a Tenement 265 Ejectione Custodiae lieth not of a Copihold estate 463 Elegit 65 247 Election 36 52 67 92 289 342 360 Enrolment 10 Endowment 13 Enfant 156 297 Entry 46 66 79 163 165 427 446 For forfeiture 345 Enquiry of damages 197 278 Escape 165 145 203 321 274 Estates 150 219 221 297 288 311 Vested shall not be divested 345 Essoin 184 Estoppell 122 220 224 286 437 Error 12 28 52 71 137 207 228 238 245 246 260 452 By Executors to reverse an Attainder of their Testator 452 278 317 327 328 343 346 363 397 402 412 415 445 365 By Journeys accounts 28 Upon Outlawry 37 Upon Recovery in Assize 69 In assessing damages 71 For want of Averment 121 Upon a common Recovery 181 To reverse a Fine by an Enfant 445 Evidence 70 192 215 414 Exchange 386 Executors 78 311 459 Where they shall have Error or other Actions 459 Where charged of their own goods 87 121 153 Renunciation of them 185 Have action de bonis testatoris 278 Execution 65 202 247 460 200 313 378 Where joynt where several 392 Against a person attainted where not 466 Exception 158 160 79 Extortion 114 327 Extent 366 Extinguishment 15 135 250 56 Exposition of words and sentences 240 326 439 468 Of the word De and vocat 22â— Of the word Term 306 Of the word Uterque 326 Of the Statute of 32 and 33 H. 8. 358 Of the Statute of 21 H. cap. 19. 413 Examination who is to be examined upon the Statute of 27 Eliz. of Huy and Cry 456 F. FAlse imprisonment 462 Feoffments and faits 31 171 172 204 256 288 Per nomen 343 Upon condition 361 Feme covert 166 Fine upon Jurors 181 For Alienation without License 11 50 113 Not paid by Non compos mentis 11 Not payable upon settlement by Parliament 113 Post Fines 338 Fines levied 51 66 81 85 102 187 188 297 330 Where shall not bind a Feme covert 386 Reversed 157 445 Where shall be a breach of Condition 409 Levied by Prescription 265 By Tenant in tail in Remainder 361 Formedon 105 154 Forgery of false Deeds 192 Forfeiture 51 66 84 139 171 297 254 400 Founder and Foundation 49 Fresh Suits 72 Fugitives 12 G. GUardian in socage 454 Gavelkind 154 450 Grants 205 433 380 Of Executors of omnia bona sua 351 Grants of the King 12 33 36 49 162 179 237 280 334 338 451 467 Grants insufficient in point of Limitation shall not be supplied with subsequent words 14 H. HAbendum 13 73 446 Habeas Corpus 93 94 460 I. INtrusion 12 46 49 223 Indictments 9 146 337 363 404 Upon the Statute of 8 H. 6. 461 Upon the Statute of 23. of Recusancy 321 326 322 Upon the Statute of News 390 Informations 162 Upon Statute 1 Eliz. 405 Upon Statute of 23 Eliz. cap. 6. 60 Upon the Statute of Usury 125 161 Upon the Statute of Maintenance 231 291 Upon the Statute of 5 Eliz. for Tillage 319 Joynture 44 205 Joynder in Action 402 439 445 Issue 89 169 192 241 Judgment 89 428 In the Kings Court not defeated by particular customs 35 Where satisfied before a Statute 464 Jurors receiving mony doth not make the Verdict void 21 Fined for eating 181 Justification 462 K. KIng not bound to demand Rent 16 L. LEases 44 46 165 198 205 239 274 286 308 316 320 332 391 425 446 454 By Bishops 77 By Guardian of a Colledge 183 Within the Statute of 13 Eliz. 427 Leet 33 Letter of Attorney 427 Livery of Seisin 10 48 276 287 349 427 Doth prevent Enrolment 10 Libel in spiritual Court 13 127 151 174 175 M. MArriage 67 235 In right and possession 67 Mannor 33 289 Misnosmer 25 49 183 204 298 In Indictments 337 Where material where not 228 Mittimus 200 Monstrans de droit 279 Monstrans de faits 427 N. NOn-residency 129 Non-suit 142 Notice 39 139 141 Nusance 234 318 O. OBligation 129 132 164 192 214 281 Office of Marshal of the King 451 Of Herald 337 Of Marshal of the Kings Bench 451 Office Trove 27 50 85 223 Outlawry 84 280 108 148 190 Lies not upon a Judgment upon a Bill of Priviledge 465 P. PArtition 33 68 136 283 Payment where not good to the Wife 450 Post Fines 338 Plaint 415 Plenarty no Plea against the King 307 Pleadings 21 84 102 167 169 176 186 211 274 339 407 430 449 Non cepit where good 47 Nul tiel Record 85 114 Where Recovery is no Bar 90 Wherein Pleading must make a Title 58 Non damnificatus 95 General and particular ib. Good to common intent 102 Of a Fine ib. Amounts to the general Issue 251 Of Nonest factum 257 453 Out of his Fee 294 Fully administred 434 In disability where not allowed 466 Property 54 Primer seisin 85 341 Protection 93 258 Priviledge 365 Of Exceptions from Juries 287 Of London 384 Plurality 442 Prerogative 11 15 Prescription 14 100 102 143 147 199 249 299 315 336 Words of it 318 In a Stranger not Tenant 14 To erect Herdels 14 147 Where it shall not bind the King 438 For Common 100 To be a Justice of Peace 143 To levy a Fine not good 265 To distrain for Amerciaments 327 To Repair 438 by taking Wood in the Lands of another Man ib. Presentation 50 58 84 207 Repealed by the King 218 Passeth not by a Grant of Bona Catalla 28 By the Bishop who Collates shall not put the King out of possession 307 Praemunire 399 Proof 349 Process 65 Prohibition 123 127 174 175 176 177 208 255 325 336 376 367 318 325 388 411 442 467 Q. QUare Impedit 39 50 58 84 85 190 277 213 232 278 280 284 307 312 284 289 455 Causes of Refusal when good c. contr 39 312 R. RAzure of Deeds 381 Ravishment of Ward 152 Refusal of the Bishop 312 Remitter 40 48 85 118 172 Remainder 134 256 266 336 Upon a Contingent 330 Remitter 48 Redisseisin 90 Receipt 105 Retainer 153 320 Return of the Sheriff 65 200 201 202 312 459 Relation 11 355 Of matter of Record 257 Of a Judgment 264 Of an Execution 423 Rents 187 198 209 280 362 441 Reserved upon a Lease of Dutchy Lands 15 To be paid without demand ib. Charge parcel of a Manor 18 Cannot issue out of a Right 205 Charge out of Copyholds 8 Suspended by Entry 110 240 How to be demanded and when severally 271 425 In esse to some purposes and suspended to others 467 Reputation 18 33 49 Replication 56 102 194 Reversion 362 Cannot pass without Deed 429 Reservation 25 446 Restitution 461 Request 167 303 389 Repleader 102 114 Replevin 33 54 56 64 294 Revocation 113 Recovery 30 In Assise where a Bar 30 Vouchee must appear in person 101 Common Recovery by an Infant 296 S. SAles 225 Seals 12 310 Seisin 271 356 In Fact and in Law 318 Seisure 12 84 119 Scire facias 58 84 187 402 Where for the King è contr 84 Against Executors 84 Upon Audita Querela 195 Summons and Severance 445 Stewards of Manors and Courts 309 294 444 Statutes Construction of them 44 Where they ought to be pleaded where not 427 Supersedeas 189 Sur cui in vita 210 Surrenders 378 385 420 226 454 By the Steward out of Court 309 Vide Copyholds Amounts to an Attornment 408 Of one Termor to another not good 420 By Attorney not good 45 T. TAil 297 Tenant by the Curtesie 233 Tender 88 95 Upon a Mortgage 43 Upon an Award 55 Where it is no Revocation of uses 113 Toll 315 Traverse 12 49 53 56 58 64 68 102 207 213 277 304 331 340 429 467 Where the descent where the dying seised 429 Trespass Vi armis 110 Trover and Conversion 304 305 335 Not against a Feme Covert 433 Tithes 13 25 122 174 175 177 208 325 336 367 380 411 467 In London 25 Become Lay Chattels 29 Jurisdiction of them 76 Claimed by Prescription ib. Discharged by Unity 467 Trial 67 116 148 203 206 255 285 310 413 V. VAriance 175 228 33â—â— Verdict 86 118 181 426 View 30 106 59 Usurpation 58 84 307 Uses 188 288 330 What it is 279 And Declaration of them ib. Not rise out of an Use 10 Not out of a Possibility 279 Contingent raised 31 Void for want of Consideration 279 Limitation of them ib. Raised by Covenant and by Feoffment do differ ib. Suspended yet the Land devised 345 Contingent shall bind the Execution of an Estate in possession 345 Executed to the Possession 409 W. WAger of Law 119 229 282 VVardship 347 VVarning 82 VVills 155 311 VVitherâ—â—m 302 VVarrant of Attorney 246 VVarranty 252 VVast 62 79 86 220 282 359 By Cestuy que use 409 VVrit To the Bishop 84 85 278 289 Of right 212 236 the manner of proceeding in it 419 Of Enquiry of damages 278 FINIS
197 p VVright and the Bishop of Norwiches case 218 p VVhisker and Cleytons Case 219 p VVard and Blunts case 251 p VVeston and Grendons case 255 p VVoodshaw and Fulmerstons case 262 p VVindham and Sir Edward Cleeres case 263 p VVickes and Dennis case 271 p VValgrave and Ogdens case 305 p VVard and Knights case 315 p VViseman and VVaringers case 339 p VVeston and Garnons case 343 p VVillis and Crosbies case 373 p VVilliams and Blowers case 402 p VValpoole and Kings case 407 p VViggot and Clarks case 419 p VVangford and Sectons case 423 p VVilmer and Oldfeilds case 424 p VVolman and Fies case 449 p VVillis and VVhitewoods case 454 p VVade and Presthalls case 466 p VVharton and Morleys case 467 p VValgrave and Agars case 469 p Z. ZOuch and Bamfeilds case 102 p REPORTS AND Cases of Law Argued and Adjudged in the Time of Queen Elizabeth From the twenty fourth to the three and thirtieth year of Her Reign I. Borneford and Packingtons Case Hill. 25. Eliz. in the Kings Bench. IN Trespas It was found by special verdict Custom of Free-Bench That the Defendant was seised of the Manor of B. whereof the place where is parcel demised and demiseable by Copy c. And that B. the Granfather of the Plaintiff was seised of the place where c. according to the custom of the said Manor in Fee-simple and that within the said Manor there is this Custom That if any Copy-holder dieth seised his Wife over-living him shall hold all the Land during her Widowhood as Free-bench and shall be admitted Tenant to the Lord 2 Brownl 21. and that the Heir shall not be admitted to it during the life of his Mother And found also another Custom within the said Manor That if any Copy-holder be convicted of Felony and the same be presented by the Homage that then the Lord might seize c. And it was further found that the Grandfather of the Plaintiff took a Wife and died seised having issue A. Father of the Plaintiff The Wife is admitted to her Free-bench A. is convicted of Felony and that is presented by the Homage and afterwards A. died after which the Wife died c. It was argued by Atkinson that A. is not within the danger of this Custom for during the life of his Mother who by a Claimer is Tenant to the Lord and admitted to it she is Copy-holder and it is not like to the Case lately adjudged of possessio fratris without admittance for there the party was admittable and so he was not here And also it appeareth by the Custom as it is found That the Lord upon such matter shall seize and therefore we ought to make construction that this Custom doth not extend to Cases where the Lord cannot seize but in the Case at Bar the Lord cannot seize by reason of this Free-bench And we ought not by any construction to extend a Custom beyond the words in which it is conceived but it shall be taken strictly and not be supplyed by Equity with a Custom in the place of a Seisure But notwithstanding all this afterwards Iudgment was given against the Plaintiff II. Hill. 25 Eliz. in the Kings Bench. A Copy-holder doth surrender to the use of one A. upon trust that he shall hold the said Land until he hath levyed certain monies and that afterwards he shall surrender to the use of B the monies are levyed A. is required to make surrender to the use of B. he refuseth B. exhibits a Bill to the Lord of the Mannor against the said A. who upon hearing of the Cause decrees against A. that he shall surrender he refuseth now the Lord may seize and admit B. to the Copy-hold for he in such Cases is Chancellor in his own Court per totam Curiam III. Wade and Bemboes Case Hill. 25. Eliz. in the Kings Bench. IN a Writ of Error by Wade against Bembo upon a Iudgment given in the Court of the City of Bristol the Case was That Bembo was Plaintiff in the said Court against Wade in an Action of Covenant and declared of a Covenant made by word by the Testator of Wade with Bembo and declared also that within the said City there is a Custom That Conventio ore tenus facta shall bind the Covenantor as strongly as if it were made by writing And it was holden by the Court that that Custom doth not warrant this Action for the Covenant binds by the Custom the Covenantor but doth not extend to his Executors and a Custom shall be taken strictly and therefore the Iudgment was reversed IV. The Lord Paget and Sir Walter Ashtons Case 25 Pasch 25. Eliz. in the Kings Bench THe Lord Paget brought an Action of Trespass against Sir Walter Ashton who justified because he is seised of three Messuages to him and his Heirs and that he and all those whose estate he hath c. have had the Woodwardship of the Forrest of C. within which the place where c. and also have had within the said Forrest Estovers without number And that one Rowland Bishop of Coventry and Lichfield was seised of the Forrest aforesaid in the right of his Church and by Indenture betwixt him and Sir Edw. Ashton his Ancestor whose Heir he is setting forth that divers debates had been betwixt the said parties concerning some profits within the said Forrest It was agreed betwixt them that the said Sir Ed. Ashton should release unto the said Rowland all his right in the said Office and Estovers and that the said Rowland shoud grant de novo unto the said Edw. and his Heirs the said Office and one hundred loads of Estovers per annum out of the said Forrest After which the said Ed. according to the said agreement did release to the said Bishop ut supra after which the said Bishop by Indenture reciting the said former Convenants in compl Indenturae praedict Convent did grant to the said Sir Ed. the said Office and Estovers pro easiamento dicti Edwardi haered suorum by assignment of the Officers of the said Forrest and if the assignment he not made within ten days after request that then the said Ed. and his Heirs should cut dow wood where they pleased and averred the things released were of as great value as the things granted And upon this matter the Plaintiff did demurr in Law and it was adjuded for the Plaintiff for here no Inheritance in the things granted passed to the said Sir Ed. but only an Interest for his own life 1. Inst 148. a. 398. b. ib. Dy. 253. 1 Cro. 644. for the grant was to Sir Ed. only without the word Heirs and the reference to the Indentures by which the Bishop hath covenanted to grant the Inheritance nor the words in the grant imply an estate in Fee s. pro easimento dict Ed. haered suorum and that in default of Assignment it should be lawful for Sir Ed. and his Heirs
licence by recovery c. N. Vaux the surviving Feoffee died having issue W. Lord Vaux the purchasor died seised his Son and Heir 14 Eliz. levied a Fine Sur Conusans de droit c. and that Fine was levied to the use of the Conusee c. and that without licence The Lord Vaux within five years after the Fine levied entred for the condition broken and now issued forth a Scire facias against the Conusee for that alienation without licence who made default whereupon issued process to seize the Lands whereupon came Sir Tho. Tresham Fine for Alienation without Licence and shewed the whole matter aforesaid and prayed to be discharged It was said that this Prerogative to have a Fine for alienation without licence had lately beginning upon the original creation of Seignories so as this prerogative is as it were paramount the Seignory and shall go paramount the Condition as well as the Condition is paramount the Alienation but if the disseisor of the Tenant of the King maketh a Feoffment in Fee now upon the entry of the disseisee the person of the Feoffee shall be charged with a Fine but the Land by the re-entry of the disseisee is discharged and such is the opinion of the Lord Frowick in his Reading upon the Statute of Prerogativa Regis and the reason is because the disseisor is not Tenant to the King and so when he aliens it cannot be said an Alienation by the Kings Tenant See 45 E. 3. 6. If the Tenant of the King in chief seaseth for life with licence and afterwards grants the Reversion over without licence Entry for Condition what acts it shall defeat the Tenant for life is not bound to atturn in a Quid juris clamat wherfore it seems that if such Tenant doth attorn the King shall seize presently This Entry for the Condition broken is not to have so violent a retrospect to the first livery to which the Condition was annexed that it shall defeat all things mean between the Creation and the breach of the Condition but it shall defeat all mean things which rise upon the act of the party as Rent Dower c. But charges which accrue by reason of Tenure do remain notwithstanding the Entry for the Condition broken As if such a Tenant of the King maketh a Feoffment in Fee upon condition which is broken the Feoffee dieth seised his Heir of full age the Feoffor re-entereth this re-entry by force of the condition broken hath not so avoided the descent but the King shall have Relief upon the said descent for the Relief is paramount the Livery and the condition So if a Feoffee upon condition disclaim in Avowry Condition shall not avoid an Interest vested by which the Lord brings a Writ of Right Sur Disclaimer and hath Iudgment the Feoffee entreth for the condition broken the said re-entry shall not avoid the interest of the Lord by the Iudgment on the Writ of Disclaimer but he may enter at his pleasure and it was moved by Plowden who argued for Tresham that if the Tenant of the King being Non Compos mentis makes a Feoffment in Fee and dieth his Heir entring upon the Feoffee shall not pay a Fine for the Alienation of his Father but the person of the Father shall be charged with it And at the end of this Term after many Arguments and Motions Iudgment was given for the Queen that she should seize the Land and hold the same for the Fine and that she should not be driven to sue the person of the Feoffee or Conusee And by Manwood chief Baron at the Commom Law in many Manors Tenant in soccage upon every alienation shall pay a Fine nomine relevii a fortiori in the Kings case and therefore he was of opinion That this Prerogative to have a Fine for alienation without licence is by the common Law and not by any Statute XII Caters Case Mich. 25 and 26 Eliz. in the Exchequer Chamber A Bill of Intrusion was in the Exchequer against Cater Intrusion 7 Co. 12. 1 Anders 95. who pleaded the Grant of the Queen the Plaintiff replicando said that before the Queen had any thing c. Sir Francis Englefield was seised of the Manor of which c. and he being beyond the Seas the Queen sent her Letters under the Privy Seal Quod ipse in fide legeantiâ quâ dictae Reginae tenebatur indirecte rediret in Angliam praedict tamen Franciscus spretis mandatis dict Reginae venire recusavit for which a Certificate was by the said Queen into the Chancery Quod dictus Franciscus in portibus transmarinis sine licentia dict Reginae remansit And thereupon a Commission was awarded to seize the Lands of the said Sir Francis which was entred in the Replication in haec verba reciting also the Queens Privy Seal and that the said Sir Francis did stay there spretis mandatis c. for which the Queen seised and granted to the Plaintiff And afterwards the Statutes of 13 and 14. Eliz. were made after which the said grant was made to the Defendant upon which matter there was a Demurrer and Iudgment given for the Plaintiff Error And now Cater brought a Writ of Error in the Exchequer Chamber and it was first assigned for Error because that the Record is entred Inter Johannem Cater present hic in Curia by I.S. Attornatum suum and that cannot be for it is oppositum in objecto that one can be present in Court and also by Attorney simul semel for the Attorney is to supply the default of the personal presence To which it was said by Wray Anderson and Periam that the matter assigned was no Error for there are many Presidents in the Exchequer of such Entries which were openly shewed in Court. 48 E 3. 10. R 2. 20 H 7. 20 H 8. And by Manwood chief Baron it is not so absurd an Entry as it hath been objected for if one hath an Attorney of Record in the Kings Bench and he himself is in the Marshalsey there is an Action against him he is present as Prisoner and also by Attorney and by them notwithstanding that here appeareth a contrariety for such Entry properly is presentem hic in Curia in propriâ persona sua yet because many proceedings are according it is the more safe course to follow them for if this Iudgment be reversed for this cause many Records should be also reversed which should be very perillous An other Error was assigned because it is not alledged in the Replication of what date the Privy Seal was nor that any notice of the said Privy Seal was given to Sir Francis to which it was said that the Privy Seal need not any date especially in this case for the matters which are under the Privy Seal are not issuable See 2 Eliz. Dyer 177. Privy Seal nor any traverse can be taken to it and this Privy Seal is not
Lands within the said Town every second year left their Lands to lye fresh and untilled and prescribed further that the Tenants of the Lands within the said Town might erect Herdals in in their Lands with the Licence of the Lord of the said Manor and not otherwise and further declared that the said Bedingfield had let to him the said Manor and that the Defendant had erected Herdals upon his Lands without Licence so as the profit of his Foldage is impaired by it And all this matter was found by Verdict And it was objected in stay of Iudgment that the prescription is not good for it is against Law and common right to abridge the Subject of the profits of his Lands But the whole Court was clear of opinion that the prescription is good enough as 15 E 2. Prescription 51. Prescription to have common appendant in other Land afte that the Hay is cut and v E. 1. Prescription 55. A. seised of Lands may Plow it and Sow it and cut and carry away the Corn and afterwards when the Corn is carried B. by prescription may have the said Land as his several and the other who sowed it cannot meddle with that land but to plow and sow it in season c. And the Cattel cannot eat and pasture in the Land when they come to plow or sow it or to carry it away nor have any profit but the Corn and yet the Free-hold of the Land is in such person c. and that was holden a good Prescription and a difference was taken by the Court where one doth prescribe to take away the whole interest of the Owner of the Land and where a particular profit is restrained And here this prescription doth not extend but to restrain the Ter-tenant to erect Herdals which is a reasonable prescription See 1 H 7 24. The Lord of the Town doth prescribe to have free Foldage of the Beasts of his Tenants in D. and see there that libera Falda is not any other but to hav the Beasts of the Tenants to manure the lands of the Lord c. And afterwards Punsany the Plaintiff had Iudgment to recover XVI Mich. 25 26 Eliz. at Serjeants Inn. IN the Dutchy Chamber the case was that King E 6. leased for years certain lands parcel of his Dutchy of Lancaster rendring rent with clause of re-entry and that a lease was made to one Bunny It was found by Office that the Rent was arrear and by another Office that the Servant of the said Lessee had tendred the rent in his absence and by the commandment of his Master and that afterwards one I. S. Receiver General of the Dutchy received the said Rent and had accounted for it and upon his account it was allowed And this matter was opened at Serjeants Inn in Fleet-street before Wray Anderson Manwood Clench Rhodes Plowden and Stanhop and it was argued by Shuttleworth that in this case of rent reserved upon a Lease for years made by the King of dutchy-Dutchy-Land The King not bound to demand Rent the King is not bound to demand it but he may for default of payment of it re-enter without demand and that the Lessee is tied to tender it at his peril as well as if the Queen had been seised of the said land in the right of her Crown and as to that payment the Statute of 1 H 4. is to be considered by which it is enacted that the possessions of the said Dutchy Taliter tali modo per tales officiarios ministros in omnibus remaneant deducantur gubernentur sicut remanere deduci gubernari debuissent si ad culmen Regis Dignitatis assumpti non fuissemus and these words ought to be intended of things which concern the Lands themselves but this Act of demand is a personal thing and concerns the person of the King and toucheth the Majesty and dignity of the King and in all cases of the Dutchy the person of the King shall hold his priviledge notwithstanding that the possession of the Land be carried in the course of a private person And therefore if the Queen will alien Lands parcel of her Dutchy she ought to make Livery for now she meddles with the possession it self but if the Queen will sue for parcel of her Dutchy non omittas shall be in the Writ for she cannot sue but as Queen and the Queen hath such Prerogative that none shall execute her Writs at her own sute but the Officer of the Crown 21 E 4. 60. for Livery if it be not Land within the County Palatine and for the residue See 10 H. 4. 7. 3. Eliz. 216 217. Plowden Lessee for years of Lands of the Dutchy shall have aid of the King before Issue joyned c. And if the King make a Feoffment of Lands of his Dutchy out of the County Palatine to hold of him in Capite the Feoffee shall hold it so and a Feoffment of such Lands upon condition that the Feoffee shall not alien is a good condition and Lapses shall not bind the Queen in case of an Advowson which the Queen hath in the right of the Dutchy and if the Villain of the Queen in the right of the Dutchy purchaseth Lands in Fee and aliens yet the Queen shall seise and that hath been adjudged in the Exchequer Chamber and if the Queen make a Lease of such Land and afterwards makes another Lease of the same Land without recital of the first Lease it hath been adjudged that the second Lease is void It was argued contrary by Beamount the younger that this condition which goeth to the realty to reduce the Land again ought to be ordered and governed by the Queen as it ought to be by a Subject and therefore if the Queen will take advantage of this condition she ought to make a Letter of Attorney under the Dutchy Seal to her own Officer authorizing him thereby to make demand of the said Rent c. And by Shuttleworth here be two Offices the one contrary to the other the best shall be taken for the Queen 14 E 4. 5. in Skreens Case in the end of it And if the Rent of the Kings Farmor be behind now although that after the Receivor of the Dutchy doth receive it yet the same doth not purge the forfeiture as if the Bayliffs of a Manor receive rent of a new Feoffee the same will not change the Avowry of the Lord without notice given to him 41 E 3. 26. And if a Copy-hold escheat the Steward without a special Warrant cannot grant it over de novo XVI Rearsbie and Rearsbies Case Intrat Trinit 25 Eliz. rot 746. Mich. 25 and 26 Eliz. in the Kings Bench. REplevin by W. Rearsbie against A. Rearsbie and L. Rearsbie who avow the distress because that one W. Vavasour was seised of the Manor of Deniby whereof the place where c. is parcel in his Demesne as of Fee and so seised gave the said Manor to
such Tithes which are of such nature as Tithe-corn and Tith-hay And Manwood chief Baron held clearly that the Lease of these Tithes is good enough notwithstanding the defect by the special Reservation which is limited and appointed by the Statute and so by him a Lease of a House Rent Mill Ferry c. are out of the said Statute And as to the Tithes notwithstanding the words of the Statute are general any Tithes yet he conceived the Statute ought to be intended of Tithes of common Right and not of such customary Tithes as those of London are and therefore if all the Parishoners prescribe in modo Decimandi scil to pay a certain sum of mony for all manner of Tithes upon demise of such a Rectory such special Reservation is not necessary for these are Tithes against common Right and no Tithes are within the purview of the said Statute but those which are annual and therefore a Lease of Tithe-wood is out of the meaning of this Statute for non renovantur in annum and he said that upon a Lease of the Tithes of Chery Trees a rent ought to be reserved according to the Statute and the Farmer may bring his Cheries to the Market and buy Corn. Shute Iustice contrary for the words of the Statute are general And note that this Lease was of the Rectory of Saint Lawrence in the City of London There was another matter moved in this case because the lease whereof the Action is brought was made by the name of Master or Guardian and the Fellows whereas the true name of their Colledge is Master and Fellows Misnosmer And it was argued by Atkinson that the same is not such a Misnosmer which makes the Lease void for sive custos are words of surplusage v. 7 H. 6. 13. And also the case of the Cooks 20 Eliz. Plow 531. The Corporation was by the name of Masters or Governors and Comonalty mysterii coquorum c. And they made a conveyance by the name of Masters or Governors and Comunalty artis sive Mysterii c. the same is no such Misnosmer as shall make void the conveyance for Art and Mistery are both of one sense XXVI Harvey and Harveys Case Pasch 26 Eliz. In the Kings Bench. Consultation CLare Harvey one of the Daughters of Sir James Harvy Alderman of London Libelled in the Spiritual Court against Sebastin Harvy Son and Executor of the said Sir James for a Legacy bequeathed to her by her Father Sebastian did not appear for which he was excommunicated and taken by a Writ of excommunicat capiendo and imprisoned and afterwards he came into this Court and surmised to the Court That the said Sir James in his life had given to the said Sebastian all his Goods and Chattells and was also bound unto the said Sebastian in a Statute-staple of two thousand pounds whereupon he had prohibition and now the Plaintiffs counsel prayed a Consultation quatenus non agitur ad validitatem facti aut Statuti And Egerton Solicitor of Counsel with the Plaintiff cited a Iudgment given in the like Case betwixt Lodge and Luddington where such a special Consultation was granted But Wray put a difference betwixt the said Case and the Case at Bar for here in this Case is a gift by the Testator himself but in the Case cited the gift was by the Executor and also here is a Statute of two thousand pounds in which Case the Obligations which could not pass by the deed shalll be subject to the said Statute XXVII The Duke of Northumberlands Case Trin. 26 Eliz. In the Exchequer THe late Duke of Northumberland seised of five Messuages in the Parish of St. Sepulchres London in the Tenure of W. Gardiner Bargain and sale 3 Co. 9. by deed intented and enrolled for money bargained and sold to I. L. all his Tenements situate in the Parish of St. Andrews in Holborn in the Tenure of W. Gardiner to have to the said I. L. for life the remainder to K. his Daughter in Fee. Atkinson The bargain and sale is void by reason of the Misnosmer of the Parish notwithstanding the truth of the Tenure for by the grant and bargain and sale of all his Tenements in the Parish of St. Andrews nothing passeth and the truth of the Tenure subsequent shall not help it And by Manwood chief Baron the sale is utterly void for the falsity doth preceed the truth and certainty And it was argued that I. L. entring by colour of the same bargain and sale is a disseisor as the Case is betwixt Croft and Howel 20. Eliz. Com. 537. Yet if he was but Tenant at Will when he made the Lease for years the same was a Disseisin to the said Duke and then the Duke being disseised he is attainted of treason 10. Mariae And now we are to see what things accrue to the Queen by the said Attainder and as to that it was said that at the Common Law a Right of Entry should Escheat but not without office found thereof no more than Lands in possession And by the Statute of 26 H. 8. it is enacted that every person attainted of high treason shall forfeit all his Lands and Tenements which he had of any estate of Inheritance by which Statute a Bishop Abbot or Tenant in tayl in such Case shall forfeit even without Office But in the Statute of 33 H. 8. there is a saving to every other person all such right possession so as in that Case by that Statute the King shall not be in possession without Office but shall have a right but cannot enter before Office or after And he is to have Sci. facias against him who hath the possession and he shall make his defence as well as he can and the words of the said Statute That the King shall be in actual possession shall not be construed to extend to an actual and absolute possession but such a possession only which he had at the Common Law after Office found so as the Statute doth not give to the King a larger possession but an easier without the circumstance of an Office And of that opinion was Manwood chief Baron and Shute second Baron And then it was moved further by Cook because that the Quen by the Attainder hath but a Right and the Queen makes the grant of the Messuages themselves the same grant is void And he granted that the Queen might grant a real Action and a Right of Entry but such a grant ought to be conceived in special words as to say That the Duke of Northumberland was seised of five Messuages and by such a one disseised and after the Duke was attainted and so granted for the Queen may grant such a Right by reason of her Prerogative and therefore the same ought to be granted by special words as in the Case of Mynes in the Commentaries and according to that was the opinion of the Iustices in Cromers Case 8 Eliz. which Case see
passeth and doth extend into D. and the residue which is in C. shall remain in me in gross v. 9 E. 4. 17. Catesby And if I be seised of a Manor which doth consist of services and of twenty Free-holders and one hundred Acres of Demesnes and I grant the services of my twenty Free-holders and forty or twenty Acres of the said one hundred Acres a Manor shall pass although it was not granted by the name of a Manor but if I grant the services of three four or five of my Free-holders and forty or twenty of the said one hundred Acres upon such a grant no Manor shall pass Windham Iustice contrary We are not here to speak of the creation of a Manor that is a forraign matter but we are here to consider upon the division and apportionment of a Manor They that have argued in this case at the Bar have stood much upon the words of the Conveyance manerium suum de North-kelsey and that Sir Fr. Askew at the time of that assurance had not any Manor of North-kelsey or in North-kelsey but that is not any reason for if Cestuy que use mean between the Statute of 1 E. 3. 27 H. 8. will make a Feoffment of the Manor which was in use by these words manerium suum the same had been good and yet it is not manerium suum but the Manor of the Feoffees but it may be said suum by receiving of the profits according to the trust and confidence reposed in the Feoffees so in our case in as much as Sir Fr. Askew had before this grant aswell demesnes as services in North-kelsey it may collaterally be said a Manor there and notwithstanding that tempore concessionis proprie loquendo no Manor was in North-kelsey yet now upon operation of the Law upon this grant a new Manor shall rise for in divers cases where a thing which was not in esse before upon a grant may rise As if I grant unto you out of my Land a Rent de novo And also a thing which was not in esse before may upon a grant take upon it a new nature As if I. seised of a great Wood grant to you Estovers out of it they were not before in me but as Woods and Trees now by this grant they are become Estovers in the Grantee so as they are in the Grantee in another nature than they were in me So in our case although North-kelsey was not a Manor in Sir Fr. Askew yet now upon the grant it is a Manor in Bard 9 E. 4. 17. And as to the matter which hath been objected because a Court cannot now begin the same is not any reason for the Court Baron is incident to the Manor and also to every part of the Manor and transitory through the whole Manor and if Sir Fr. Askew had sold all the demsnes of the Manor in Castord where the Court Baron for the said Manor had always been held and not else-where yet such a Court might be holden in any part of the Demeans in any other of the said Towns The Lord Anderson to the same purpose It hath been argued of the other side that the Manor doth not pass because the grant is in these words manerium de North-kelsey in North-kelsey I conceive that these words de North-kelsey are void as matter of surplusage and the grant shall be construed as if the words had been manerium suum in North-kelsey And a Manor is such a thing as may be determined divided and suspended As if the Lord of a Manor leaseth for years all the Demeans of the Manor the Manor is suspended during the term for years as lately it hath been adjudged And a warranty may be divided as if a Feoffment in Fee be made to two with warranty and the one of them releaseth the warranty vide L. 5. E. 4. 103. A. seised of a Manor which extendeth in four Towns B. C. D. and E. and he gives his Manor in B. C. and D. by this gift the Manor and all that is in the said four Towns passeth And he cited also a Case 21 E. 4. 3. The Lord of a Manor erected a Chapel within his said Manor as a Chapel of Case c. and afterwards it is a Parish-Church now it is become presentable an Advowson appendant as the soil upon the which the Church is built is parcel of the Manor See 32 H. 6. 9. One Manor may be parcel of another Manor as A. holdeth of B. twenty acres of Land as of his Manor of C. which Manor B. holdeth of D. as of his Manor of E. B. dieth without Heir so as his Manor of C. is escheated unto D. now the twenty acres are holden of the Manor of C. as they were before and the Manor of C. is by the Escheat become parcel of the Manor of E. and by Lease of the Manor of E. it shall pass Post 32. And I do not know any difference between the Case of Parceners and the Case of Ioynt-tenants for now they are both equally compellable to make partition And he cited the Case of one Estopp lately adjudged viz. the Queen was seised of the Rectory of D. which extended into the Counties of Lincoln and York and the Queen granted her Rectory of D. in Lincoln these are several grants and now upon the matter they are become several Rectories And as to that which hath been objected concerning a Court Baron which ought to belong to this new Manor and that such a Court cannot now at this day be erected and therfore here cannot be a Manor here needs not the erection of any new Court but forasmuch as the Court Baron before this grant might be by Law holden in any place within the Manor therefore every part of the Demeans of the Manor is capable of a Court to be holden there As where one is seised of a Manor to which an Advowson is appendant now is the Advowson appendant not only to the said Manor but to every part of it for if he alien an acre parcel of the Manor with the Advowson the Advowson is now appendant to the said acre See 43 E. 3. 26. So in the Case at Bar because this liberty and franchise of a Manor is throughout the whole Manor and in every part of the Services and Demesnes upon this grant of the Services and Demesnes in North-kelsey and of his Manor in North-kelsey a Manor passeth which Windham also granted and agreed unto Note at this time there were but three Iudges in this Court And afterwards Iudgment was given for the Defendant XXXIV Alington and Bales Case Pasch 27 Eliz. In the Kings Bench Rot. 584. 1 Cro. 660. 661. ALington and others Executors of Sir W. Cordel late Master of the Ross brought an Action Debt against Bales The Case was this One Bream being seised of certain Lands by Indenture bargained and sold the same to one Platt by these words give grant bargain sell and by
the said Indenture covenanted with Platt that the said Platt and his Heirs should quietly enjoy the said Lands without interruption of any person or persons And afterwards certain controversies rising betwixt them concerning the said Lands Arbitrament the said Bream and Platt submitted themselves to the award and arbitrament of Sir W. Cordel to whom they were bounden severally for the performance of such award the which Sir W. amongst other things awarded that the said Platt and his Heirs should enjoy quietly the said Lands in tam amplo modo forma as the said Land is conveyed and assured by the coveyance and assurance aforesaid And the truth was that the said Bream at the time of the said Assurance was bounden in a Recognizance of six hundred pounds to one More 15. Eliz. and afterwards More 16 Eliz. sued a Sci. fac upon the said Recognizance and 18 Eliz. the bargain and sale aforesaid was made and afterwards 19 Eliz. More sued forth Excution by Elegit and the moyety of the said Land assured to Platt was delivered in Execution to More And if upon the whole matter the Arbitrament was broken was the question It was argued by Godfrey that the Plaintiff ought to be barred and first 1 Hob. 35. Mor. 175. 3 Len. 43. Post 93. Post 179 279. 1 Inst 366. a. b. 388. Dy 42. he conceived that these words in the Indenture give and grant did not help the Action for the Lands passed with a charge and the general words Dedi concessi do not extend to this collateral charge but to the direct right of the Land only but if a stranger had put out the bargainee there upon such general words an Action would lie but as the Case is they do not give any cause of Action for the Recognizance was a thing in charge at the time of the Assurance and yet see 31 E 3. Br. Warr. Chartae 33. A. enfeoffeth B. with warranty who brings a Warrantia Chartae and recovers pro loco tempore and afterwards a stranger doth recover against him a Rent charge out of the said Land and it was holden that upon the matter B. should have execution the special words of the Aribitrament upon which the Action is brought are that the said Platt and his Heirs should enjoy the said Lands in tam amplo modo forma as it was assured and conveyed to the said Platt ergo not in more ample manner 1 Cro. 660. 661. Owen Rep. 65. 2 Cro. 571. 1 Roll. 425. and the said Land was conveyed to Platt chargeable to the said Recognizance therefore if Platt enjoy it charged there is no cause of Action And as to the Covenant in the Indenture that Platt and his Heirs should enjoy quietly the said Lands without interruption of any person the same is a Collateral surety and the words of the Award are that Platt shall enjoy it in tam amplo modo forma as it is conveyed and assured by the assurance aforesaid without interruption these are not words of assurance for the assurance doth consist in the legal words of passing the estate scil bargain sale Dedi concessi and in the limitation of the estate and not in the words of the Convenant And therefore it hath been adjudged that if I. be bounden to A. in an Obligation to assure to him the Mannor of D c. if A. tender to me an Indenture of bargain and sale in which are many Covenants I am not bound upon the peril of my Bond to seal and deliver it Also here doth not appear any interruption against the Covenant in the Indenture for here is not any lawful Execution for it appeareth here that More hath sued Execution by Elegit 4 years after the Iudgment in the Scire facias in which case he shall be put to a new Scire facias for the Sheriff in this Case ought to have returned that the Conusor after the Recognizance had enfeoffed divers persons and shewed who and upon that matter returned the Conusee should have a Sci. facias against the Feoffees vide F. N. B. 266. And the Court was clear of opinion against the Plaintiff XXXV Floud and Sir John Perrotts Case Trin. 27 Eliz. In the Kings Bench. FLoud recovered against Sir John Perrot 1 Cro. 63. Post 264. 3 Len. 240. in an Action upon the Case upon a promise eighty six pounds against which Floud and Barlow affirmed a Plaint of Debt in London and attached the said moeny in the hands of the said Sir John and had execution according to the custom of London And now the said Floud sued a Scire facias against the said Sir John who appeared and pleaded the said Execution by attachment upon which Floud the Plaintiff did demur in Law And it was adjudged no plea for a duty which accrueth by matter of Record cannot be attached by the custom of London And notwithstanding that the custom of London be layed generally in aliquo debito and damages recovered are quoddam debitum as it was urged by the Council of the Defendant Yet the Law is clear that Iudgments given in the Courts of the King ought not Judgments in the Kings Courts not to be defeated by particular custom of places nor cannot by such particular customs be defeated and avoided as it was lately adjudged in a Western Case Damages were recovered the Sheriff by virtue of a Fieri facias levyed the money which one to whom the Plaintiff was endebted did attach by the custom in the hands of the Sheriff but it was adjudged the attachment was not good for the custom of attachment cannot reach upon a thing of so high a nature as a Record is the same Law of Debt upon a Recognizance and Statute c. and it was affirmed by Wray chief Iustice that upon great deliberation it was agreed by Bromley Lord Chancellor himself the Lord Anderson Mead and Periam Iustices that where a Merchant having in an Action recovered certain damages became Bankrupt upon which issued an Commission upon the Statute of 13 Eliz. of Bankrupts that such Commissioners could not entermeddle with such damages to dispose of them to the Creditors according to the said Statute But now see the Statute of 1 Jacobi The Commissioners have power to dispose of such debts c. XXXVI Sir Walter Hungerfords Case Trin. 27 Eliz. In the Kings Bench. Grants of the King. IN a Replevin by Sir Walter Hungerford the Case was this the Queen being seised of a great Waste called Ruddesdown in the Parish of Chipnam granted to the Mayor and Burgesses of Chipnam the moyety of a yard-Yard-land in the said Waste without certainty in what part of the Waste they should have the same or the special name of the Land or how it was bounded and without any certain description of it And afterwards the Queen granted to the said Sir Walter the said Waste and afterwards the said Mayor and Burgesses by warrant of Attorney
that one Butty was seised of the Land where c. and also of a Messuage with which Messuage the said Land had been usually occupied time out of mind c. and being seised and lying sick commanded a Scridener to be brought to him and the said Scrivener being brought to him he gave him Instructions to make his Will and amongst other things declared unto him that his meaning was that the said Messuage and all his Lands in Westerfield should be sold by his Executors and the Scrivener in making of the Will penned the matter in this manner I will that my house with all the appurtenances shall be sold by my Executors Butty died the Executors sell forty acres of the said Land to the Def. and all this matter was found by special verdict and it was moved by the Plaintiffs Counsel that the sale of this Land by the Executors is not warranted by the Will Another matter was moved scil admitting that the Executors have authority by the Will to sell the Land if the sale of parcel of the Land be good and warrantable As if I make a Charter of Feoffment of ten acres and a Letter of Attorney to make livery of them to the Feoffee if the Attorney makes several liveries of the several acres the same is void But by Cook the Cases are not like for in the Case put he hath a special Commission in which the party to whom and all the other circumstances are set down certainly contrary in the Case at the Bar there the Commission is general c. and peradventure the Executors shall never find a Chapman who will contract with them for the whole More Rep. 222. Co. Inst 113. a. And afterwards upon conference amongst the Iudges Clench Gawdy and Wray it was resolved that by this devise the Lands do pass by the sale of the Executors to the Defendant which sale also by process is warranted by the Will for by Wray these words with all the appurtenances are effectual and emphatical words to enforce the devise and that doth extend to all the Lands especially because it is found that the Testator gave to the Scrivener his Instructions accordingly And afterwards Iudgment was given against the Plaintiff See 3 Eliz. Plowd 210. Betwixt Sanders and Freeman there the Devise is pleaded in this manner Messuagium cum pertinentiis ad illud spectantibus in perpetuum in villa de Arthingworth XLIII Watkins and Astwicks Case Trin. 28 Eliz. In the Kings Bench. 1 Cro. 132. IN an Ejectione firmae it was found by special verdict that one Maynard was seised and made a Feoffment in Fee upon condition of payment of mony on the part of the Feoffor by way of Mortgage at a certain day before which day the said Maynard dyed his Son and Heir being within age Tender to redeem a Mortgage afterwards at the day of payment limited by the Mortgage a stranger at the instance and request of the Mother of the Heir tendred the money to the Mortgagee in the name of the Heir being within age who refused it And it was resolved by the whole Court that the same is not a sufficient tender to redeem the Land according to the Mortgage for it is found by the Iury that the Heir at the time of the tender was within age 2 Len. 213. generally not particularly of six or ten years c. then it might well stand with the verdict that the Heir at such time was of the age of 18 or 19 years at which age he is by the Law out of the Ward of his Mother or any other prochein amy in which Case it is presumed in Law that he hath discretion to govern his own affairs and in this Case the Mother is but a stranger for the Law hath estranged the Mother from the government of the Heir but if the Iury had found that the Heir at the time of the tender was of tender age viz. within the age of fourteen years in which Case by Law he ought to be in Ward in such Case the tender had been good XLIV Leput and Wroths Case Trin. 28. Eliz. In the Kings Bench. A Replevin by Lepur against Wroth 6 Co. 33. Replevin 3 Len. 132. and declared upon a tortious taking in Burnham in the County of Essex the Case upon the pleading was that Robert Earl of Sussex was seised of the Manor of Burnham in Fee and leased the same to the King for one and twenty years and afterwards the said Earl died by which the said Manor descended to Thomas late Earl of Sussex and he being seised 4 and 5 Phil. and Mary it was Enacted by Parliament That the Lady Frances Wife of the said Earl by virtue of the said Act of Parliament should have hold and enjoy c. during the widowhood of the said Frances for and in consideration of the Ioynture of the said Frances the said Manor Provided always and it is further enacted Construction of Statutes That it should be lawful for the said Earl by his writing indented dimissionem vel dimissiones facere pro termino 21. annorum vel infra de eodem Manerio pro aliquo redditu annuali ita quod super omnes singulos hujusmodi dimissionem dimissiones antiquus redditus consuetus vel eo major amplior reservaretur and that every such demise should be of force and effectual in Law against the said Frances for term of her life if the said term should so long continue And further the said Act gave to the said Frances Distress Avowry Covenant c. against such Lessee and for the said Lessee against the said Dame And afterwards the said Thomas the said former Lease not expired leased the said Manor to Wroth the Defendant for one and twenty years to begin at the Feast of Saint Michael next following and note the Lease was made the third of April before rendring three hundred and forty pounds per annum which was redditus amplior antiquo usuali Popham Attorney general argued that the said Lease did not bind the said Lady Frances and that for two Causes 1. because it is to begin at a day to come 2. because it was made a former Lease being in esse and he argued much upon construction of Statutes to be made not according to the letter but according to the meaning of them And he cited a Case upon the Statute of 2 H 5. 3. by which it is Enacted that in no Action in which the damages do amount to forty marks any person should be admitted to pass in trayl of it who had not Lands or Tenements of the clear yearly value of forty shillings yet the said Statute shall not be by construction extended where in an Action between an English-man and an Alien the Alien prayeth medietatem linguae and yet the Statute is general So in our Case although this private Act doth not seem to provide expresly but for two
within the said Close the Beans were growing and were parcel of his endowment and that at the time of the taking they were severed from the nine parts whereupon he took them And it was holden by Ashton and Danby because it is confessed on both sides that the Beans whereof c. were Tithes the Right of which would come in debate betwixt the Parson and the Vicar and both are spiritual persons that the tryal thereof doth belong to the Spiritual Court. See 6 E. 4. 3. 22 E. 4. 23. 24. in such a matter betwixt the Parson and Vicar there the Temporal Court was ousted of the Iurisdiction See also 31 H. 6. 11. betwixt the Parson and the Servant of another Parson 7 H. 4. 102. In Trespass by a Parson against a Lay-man who said that one A. is Parson of a Church in a Town adjoyning to a Town where the Plaintiff is Parson and that A. let to him the Tithe and demanded Iudgment c. and pleaded to the Iurisdiction and by Gascoigne the Plaintiff may recover his Tithes in the Spiritual Court. LXXVII Bunny against Wright and Stafford Pasch 29 Eliz. In the Kings Bench. IN Trespass the Case was this Leases within 1 Eliz. and 32. 7 8. made by Bishops Grindal Bishop of Lond. leased parcel of the possessions of his Bishoprick for one and twenty years and afterwards ousted the Lessee and leased unto another for three lives rendring the antient and accustomed Rent which was confirmed by the Dean and Chapter And afterwards Grindal is translated Cook argued That the Lease is warranted by the Statute of 1 Eliz. At the Common Law a Bishop might make an Alienation in Fee-simple being confirmed by the Dean and Chapter But by 32 H. 8. cap. 28. Bishops without Dean and Chapter or their confirmation may make a Lease for one and twenty years but with the confirmation of the Dean and Chapter may make a Lease for one thousand years Co. 1. Inst 45. 2. More 107. 1 Anderson 65. But by the Statute of 1 Eliz. the power of Bishops in that right is much abridged for now with confirmation or without confirmation they cannot dispose of their possessions but for one and twenty years or three lives and this Lease is in all points according to the Statute of 1 Eliz. for first it begins presently upon the making of it Secondly the antient rent is reserved payable yearly during the term for although here be an old Lease in esse yet the Rent reserved upon the second Lease is payable during the second term for payable is a word of power and not of action as 1 H. 4. 1. 2. 3. Lord Mesne and Tenant the Mesne gives the Mesnalty in tail rendring Rent it is a good Rent and well reserved although here be not a present distress yet it may be the Tenancy will escheat and then the Donor shall distrein for all the Arrearages And so the Rent is payable by possibility And 10 E. 4. 4. A. leaseth for years and afterwards grants the Reversion to a stranger if the Beasts of the stranger come upon the Lands during the term A. may distreâ—â— for the Arrearages incurred and if he happen seisin he shall have aâ—â— Assise during the continuance of the first term And he cited a Case lately adjudged in the Exchequer A Lessor entred upon Lessee for years and made a Feoffment rendring Rent with clause of Re-entry the Lessee re-entred claiming his Term and afterwards during the said Term for years the Rent reserved upon the Feoffment upon demand of it is behind Now hath the Lessor regained the Reversion And so a Rent may be demanded although not distreinable And all that was affirmed by Egerton Solicitor General And see the words of the Statute of 32 H. 8. cap. 28. Rent reserved yearly during the said Lease due and payable to the Lessor c. such Rent c. and yet by the said Statute such Leases may be good although there be a former interest for years in being if the same shall be expired surrendred or ended within one year after the making such new lease and so not expresly payable in rei veritate annually during the Term. LXXVIII Bonefant and Sir Rich. Greenfields Case Pasch 29 Eliz. In the Kings Bench. Sale of Lands by the Executors of the Devisor BOnefant brought Trespass against Sir Rich. Greenfield and upon the general issue this special matter was found Tremagrie was seised of a Manor whereof the place where c. was parcel in his Demesne as of Fee and by his Will devised the same to his four Executors and further willed Post 260. that his said Executors should sell the same to Sir John Saintleger for the payment of his debts if the said Sir John would pay for it one thousand one hundred pounds at such a day and died Sir John did not pay the mony at the day One of the Executors refused Administration of the Will the other three entred into the Land and sold it to the Defendant for so much as it could be sold and in convenient time It was moved that the sale was not good for they have not their authority as Executors but as Devisees and then when one refuseth the other cannot sell by 21 H. 3. Cestuy que use Wills that is Executors shall alien his Land and dieth although the Executors refuse the Administration yet they may alien the Land. 19 H. 8. 11. 15 H. 7. 12 Egerton Solicitor argued that the sale is good by the Common Law and also by the Statute 49 E. 3. 16 17. Devise that his Executors shall sell his Land and dieth and one of the Executors dieth another refuseth the third may sell well enough 1 And. 145. and the sale is good See Br. Devise 31. 30 H. 8. 39 E. 3. Br. Assise 356. And he put a difference where an Authority is given to many by one deed there all ought to joyn contrary where the Authority is given by Will And if all the Executors severally sell the Lands to several persons such sale which is most beneficial for the Testator shall stand and take effect And here it is found by verdict that one of the Executors recusavitonus Testamenti Ergo he refused to take by the Devise for it was devised unto him to the intent to sell therefore if he refuseth to sell he doth refuse to take and so it is not necessary that he who refuseth joyn in the sale and although we are not within the express words of the Statute yet we are within the sense and meaning of it And afterwards it was adjudged that the Condition for the manner of it was good LXXIX Gamock and Cliffs Case Pasch 29 Eliz. In the Common Pleas. Ejectione firmae EJectione firmae was brought by Gamock against Cliff of the Manor of Hockly in the County of Essex and upon the evidence the case was That the King and Queen Philip and Mary seised
the of Inner Temple being at the Bar when this Case was moved said unto Serjeant Shuttleworth that the Case had been adjudged against the Demandant and Scot Prothonotary did affirm that the Lord Dyer was of opinion that the Woman ought to be endowed according to the Custom and not otherwise And Sayer one of the Clarks of Nelson chief Prothonotary said that it was adjudged accordingly 16. Eliz. and that the Case was betwixt Gelbrand Demandant and Hunt Tenant LXXXIV Beverlie and Cornwals Case Mich. 29 Eliz. In the Common Pleas. BEverlie brought a Quare Impedit against Cornwal Quare Imped 2 Roll. 805. Out-lawry pleaded and had Iudgment to recover upon a Demurrer in Law Which see Mich. 28 29 Eliz. And now the Queen brought a Scire facias upon the matter That the said Beverly after the said Iudgment was out-lawed in an Action of Trespass at the sute of I. S. and upon that a Scire facias issued ad respondendum Quare dicta Domina Regina should not have execution of the Iudgment aforesaid by reason of the Out-lawry aforesaid and declared in all as aforesaid And further that the said Cornwal had resigned Vpon which Beverlie did demur in Law. And this Term it was argued by Puckering Serjeant for the Queen that by that Out-lawry the Interest to present is tranferred to the Queen Which see 5 H. 5. 3. Tenant at will of a Manor to which an Advowson is appendant is out-lawed in an Action of Trespass the Church voided by award of the Court it belongs to the King to present And see 8 R. 2. scil Quare Imped 200 A. seised of an Advowson the Church becomes void A. is Out-lawed in a personal Action the King shall have a Quare Impedit in that Case And as to the Exception taken because the Out-lawry is not sufficiently layed in the Writ but only generally viz. utlagatus in Com. Lincoln ad sectam J.S. in placito transgressionis without shewing the Out-lawry at large There is a difference where an Out-lawry is pleaded by way of â—â—r and disability of the person c. and where it is set down in a Writ for a Writ ought shortly and compendiously to comprehend the cause of the Action especially judicial Writs which are not tied to any form certain especially because that the Out-lawry set forth in the Writ is a Record of the same Court For the perclose of the Scire facias is prout per recordum hic in curia plenius apparet And that Record being in the Court the party cannot plead Nul tiel record as if the Record had been in any other Court But he ought to demand Dyer of the Record Which vide 5 H. 7. 24. Walmesley Serjeant contrary By Out-lawry in an Action personal the King cannot seise Land but only take the profits of it 9. H. 6. 20. 21 H. 7. 7. And as our case is nothing doth accrew to the Queen by this Out-lawry for the Queen her self is seised of the Advowson because she usurpando presentavit and her Clerk admitted and although Beverlie hath recovered in a Quare Impedit against the Presentee of the Queen yet because he is not removed by a Writ to the Bishop the Queen continues Patron and nothing remains in Beverlie that may be forfeited But Rhodes and Periam contrary for by Periam if after such Recovery the Incumbent dieth the Patron shall present for by the Iudgment in the Quare Impedit for Beverlie the Patronage is revâ—â—ted in him without any other execution And by Rhodes If after such Iudgment the Patron dieth his Executors shall have a Writ to the Bishop And by Walmesley the Scire facias doth not lie for the Queen for that Writ always runs in privity of the Record upon which it is grounded to which Record the Queen is a stranger and by Out-lawry in an Action personal no Action real shall escheat and therefore this Scire facias being in the nature of a Quare Impedit upon which it is grounded which is a real Action or at least a mixt shall not be forfeited and also it shall be absurd to grant now a Writ to the Bishop for the Queen whereas Iudgment was given against the Queen as in our case it hath been And in no Case the Iudges shall respect the title of the Queen being a stranger to the Writ But where a title for the Queen doth appear upon the pleading or otherwise within the Record 11 H. 4. 224. by Hankford If a clear title for the King be confessed by the parties upon pleading a Writ to the Bishop shall issue for the King so if such matter appear in Evidence 3 Cro. 427. c. the Land in question is seisable into the Kings hands See 9 H. 7. 9. 16 H. 7. 12. so 21 E. 4. 3. by Choke and F.N.B. 38. e. In a Quare Impedit betwixt two strangers if title doth appear to the Court for the King a Writ to the Bishop shall issue forth for the King but in our Case nothing is within the Record to intitle the Queen but all the matter upon which a Writ to the Bishop is prayed for the Queen is out of the Record and a foreign thing And as to the Out-lawry he conceived it is not sufficiently alledged for he ought to have made mention of the Exigent and of all the proceeding upon it and the Iudgment of the Coroners and for defect of that no title is given to the Queen and of that opinion was the Lord Anderson and that it ought to be set forth in the Writ in what Term the said Beverly was out-lawed and the Number Roll also so that if Beverly had demanded Dyer of the Record the Court might know it And by Nelson chief Prothonotary the Term in which the Out-lawry was ought to be comprised in the Scire facias Vide Book of Entries 485. where in a Quare Impedit for the King upon such a title the King shewed in his Count that A. was seised of such an Advowson and granted the next Avoidance to B. and that afterwards one C. impleaded the said B. in a Writ of Account in such a Court where Nihil was returned upon the summons upon which issued forth a Capias upon which is returned Non est inventus c. upon which an Exigent upon which the Sheriff did return quod ad com tent c. ad v. comitat tunc prox praecedent the said B. exactus fuit non comparuit quia ad nullum eorundem comitat apparuit utlagatus fuit and after the the Church voided and that by reason thereof it did belong to the King to present vide ibid. 196. accordingly And as to the Scire facias all the Iudges agreed that upon the matter the Writ lay well enough And it is good discretion in the Court to grant such a Writ And by Rhodes If two Coparceners of an Advowson make composition to present by turns and afterwards
one of them dieth her Heir within age and in Ward to the King The Church voideth and the King is disturbed in his presentment he shall have a Scire facias upon such composition notwithstanding that he be a stranger to it See F.N.B. 34 H. And by all the Iustices if one recover in Debt upon a simple contract and before execution the Plaintiff is out-lawed in an Action personal the King shall sue execution And see 37 H. 6. 26. Where in Debt upon an Obligation it was surmised to the Court that the Plaintiff was out-lawed And the Kings Attorney prayed delivery of the Obligation c. LXXXV Moile and the Earl of Warwicks Case Mich. 29 30 Eliz. In Communi Banco Quare Impedit A Quare Impedit was brought by Walter Moile against Ambrose Earl of Warwick and the Archbishop of Canterbury And now came the Serjeanes of the Queen and shewed an Office to entitle the Queen to have a Writ to the Bishop containing such matter viz. That one Guilford was seised of the Manor of D. to which the Advowson of the Church was appendant and that Manor was holden in chief by Knights service and that Guilford and his Wife levied a Fine thereof to the use of themselves for their lives the remainder over in tail to their eldest Son and that Guilford is dead but who is his next Heir ignorant And it was shewed by the Council of the other side that the truth of the Case was that the said Guilford was seised of the said Manor in the right of his Wife and so levied the Fine in which Case the said coveyance is not within the Statute of 32 H. 8. for it was for the advancement of the Husband not of the Wife which Anderson granted Vide Dyer 19 Eliz. 354. Caverlies Case but that is not in the Office And it was moved at the Bar that the Office is imperfect because no Heir is found But Anderson the Office is sufficient for the King to seise although it be insufficient for the Heir c. And it was agreed by the whole Court Office trove that the Court ought not to receive the Office although one would affirm upon oath that it is the very Office but it ought to be brought in under the Great Seal of England and also the Court shall not receive it without a Writ and yet Nelson Prothonotary said that the Statute of Huy and Cry of Winchester was brought into the Court without a Writ under the great Seal A Record not to be brought into Court without a Writ 63. and that was out of the Tower And in that Case also the Iustices held that if a Record be pleaded in the same Court where it abides the other party against whom it is pleaded may plead Nul tiel Record as if the said Record had bin remaining in another Court which all the Prothonotaries denied that always it had been used to the contrary At another day the Case was moved again The Plaintiff in the Quare Impedit counted that Richard Guilford was seised of the said Manor c. in the right of Bennet his Wife and so seised they both levied a Fine thereof to a stranger Sur Conusans de droit come ceo who rendred it to the Husband and Wife for their lives the remainder to the Heirs of the body of the Husband the remainder to the right Heirs of the Husband and they so being seised the Husband alone levied a Fine to a stranger Sur Conusans de droit come ceo c. and by the same Fine the Conusee rendred to the Husband and Wife in tail the remainder to the Heirs of the body of the Husband the remainder to the right Heirs of the Husband the Husband died seised the Wife entred and leased the said Manor to the Plaintiff and then the Church did become void And now the Queens Serjeants came and shewed unto the Court an Office which came in by Mittimus In which Writ the perclose is Mandamus vobis quod inspectis c. pro nobis fieri faciatis quod secundum leges consuetudinem Regni nostri Angliae faciend Statuetis And the Office did purport that the said Richard was seised of the said Manor and held the same of the Queen as of her Castle of Dover by Knights service in chief and levied the Fine ut supra and that the said Richard died sed quis sit propinquior haeres dict Ric. penitus ignorant and upon that Office prayed a Writ to the Bishop for the Queen And two Exceptions were taken to the Office First because it is not found by the said Office that the said Richard died seised 1 Cro. 895. in which Case it may be for any thing that appeareth in the Office that the said Richard after the said Fine had conveyed his estate in the said Lands unto others or that he was disseised c. See 3 H. 6. 5. If it be not found of what estate the Tenant of the King died seised the Office is insufficient But see there by Martin that such an Office is good enough for the King but not for the Heir to sue his Livery upon it And by Anderson Periam and Rhodes that defect in the Office is supplyed by the Count for there it is expressly alledged that the said Richard died seised Secondly because no Heir is found by the said Office. To which it was said by the Lord Anderson that peradventure at the Common Law the same had been a material Exception But we ought to respect the Statutes of 32 and 34 H. 8. of Wills. And therefore as to the Wife the Queen is entitled to Primer seisin because the conveyance was made for her advancement And by Windham the Queen in this Cale shall not have Primer seisin for by the Statute the Queen shall not have Primer seisin but in such Case where if no conveyance had been made the Queen should have had Primer seisin but in this Case for any thing that appears before us if this conveyance had not been made the Queen should not have had Primer seisin forasmuch as no Heir is found and if he died without Heir there is no Primer seisin because there is not any in rerum natura to sue livery Rhodes Periam and Anderson contrary Admitting that Richard died withou Heir the Queen shall have Primer seisin against the Wife of Richard notwithstanding the escheat Walmesley Serjeant If the Tenant of the King by Knights service in chief dieth seised of other Lands holden of a common person by Knights service without Heirs the King shall not have Primer seisin of such Lands holden of a Subject which Windham granted But by Anderson the Lord is put to sue an Ouster le mayne of the Land holden of him And afterward Exception was taken to the Count because the Plaintiff hath not averred the life of the Tenant in tail that is of Bennet the Wife of Richard to whom
the Obligation which was made for the further assurance of the duty And here the Defendant ought to have pleaded the tender and see 14. E. 4. 4. A. is bound unto B. that where he hath granted to the said B. a Rent-charge out of such Land now if the said B. shall enjoy the said Rent according to the form and effect of the said Grant that then c. there he needs not to plead any tender for the Rent is not payable in other manner than it was before contrary if the Condition had been for the payment of the Annuity And of that opinion was the whole Court that he ought to have pleaded a tender Another matter of the Award was that the said Audar should yield up surrender relinquish to the Plaintiff all such Houses and Tenements which he had in his possession by reason of the custody of the said Plaintiff As to that the Defendant pleaded that he had yielded up c. All such Houses c. generally without shewing which in certain And for that cause the Court was clear of opinion that the Plea was not good which see 9 E. 4. 16. If I be bounden upon condition to enfeoff the Obligee of all Lands Tenements which were to I.S. in pleading the performance of that Condition I ought to shew what Lands and Tenements in certain for they pass out of me by the Feoffment See also 12 H. 8. 7. 13 H. 8. Non damnificatus generally where no Plea. 19. Another point of the Award was That the said Audar should acquit and discharge and save harmless the Plaintiff of such an Obligation to which the Defendant pleaded that Querens non fuit damnificatus and that Plea was holden insufficient for he ought to have shewed how he had discharged him and it is not sufficient to answer only to the damnification as if I be bounden to convey unto you the Manor of B. in pleading the performance of the condition it is not sufficient to shew that I have conveyed the said Manor but to shew by what manner of conveyance viz. by Fine or Feoffment c. 22 E. 4. 43. If the condition be to discharge the Plaintiff c. then the manner of the discharge ought to be shewed but if it be to save harmless only then non damnificatus generally is good enough 40 E. 3. 20. 38 H. 6. 39. The condition of an Obligation was that the Obligor should keep without damage the Obligee of such a sum of mony against B. to whom he was bounden for the payment of it and the said Obligor pleaded that at such a day c. the said B. at his request delivered the Obligation to the Plaintiff in liew of an acquittance without that that the Plaintiff was damnified by the said Obligation before the delivery of it and it was holden by the Court that if the Defendant had pleaded that he had kept the Plaintiff without damage and had not shewed how that the Plea had not been good See 22 E. 4. 40. The Lord Lisles Case And afterwards Iudgment was given for the Plaintiff XCVI Heydons Case Mich. 29 30 Eliz. RAlph Heydon pretending title to certain Land entred into it and made a Lease of it to try the title Vpon which his Lessee brought an Ejectione firmae in which the parties were at Issue And now at the day of the Enquest the Iurors were called and but five of them appeared whereupon the Defendant came and shewed to the Court that the said Heydon by his Friends and Servants had laboured the Iury not to appear and that for the further vexation of the Defendant who had four Verdicts in affirmance of his title that the said Heydon to procure the Iury not to appear had surmised to them that he and the Defendant were in course of an agreement whereas in truth no such communication of agreement had any time passed betwixt them And all this was openly deposed in Court as well upon the oath of the Defendant himself as upon the oath of one of the Iurors upon which the Court awarded an Attachment against the said Heydon to answer the contempt And also granted to the Defendant that he might sue a Decem tales with proviso for his own expedition XCVII Smith and Kirfoots Case Mich. 29 30 Eliz. In Communi Banco Debt upon Arbitrament SMith brought Debt upon an Arbitrament against Kirfoot and declared that the Defendant and he imposuerunt se in arbitrium ordinationem judicium Johannis Popham ar arbitratoris indifferenter electi de jure titulo inturesse in quibusdam Messuagijs c. Who taking upon him the burthen of the Arbitration ordinavit that the said Defendant should pay unto the Plaintiff ten pounds in plenam satisfactionem c. and thereupon he brought his Action It was moved by Walmesley Serjeant that the Declaration is not sufficient for it appeareth that the Arbitrament set forth in the Declaration is utterly void because whereas ten pounds is awarded to the Plaintiff nothing is awarded to the Defendant and so the Award unequal and so void But the Court was clear of opinion that notwithstanding that such an Arbitrament be void in Law yet it may be for any thing that appeareth that the award is good enough 1 Cro. 904. â— Cro. 354. 355. For the Plaintiff is not to shew in his Declaration all the Award but such part only of it which doth entitle him to the thing c. and if the Defendant will impeach the Award for any thing that is to come in on his part vide ac Book of Entries 152. 123. vide For the Arbitrament 39 H. 6. 12. by Moile 7 H. 6. 41. XCVIII Arundel against Morris Mich. 29 30 Eliz. In Communi Banco RIchard Arundel sued an Audita Querela against Morris and it was comprehended in the Writ That Morris had recovered against him a certain Debt and that he was taken by a Capias ad satisfaciendum Audita Querela at the suit of the said Morris by Hickford Sheriff of the County of Gloucester who let him go at large c. And they were at issue upon the voluntary escape it was found for the Plaintiff It was objected in arrest of Iudgment that the Writ of Audita Querela is not good for the words are that the Plaintiff captus fuit virtute brevis nostri judicialis whereas this word judicialis is not in the Register but only brevis nostri de capiendo But by the whole Court the Writ is good for the word judicialis is but a word of surplusage and shall not make void the Writ And afterwards Iudgment was given for the Plaintiff XCIX Brook against King. Mich. 29 30. Eliz. IN Debt upon an Obligation by Brook against King the Defendant pleaded that the Bond was endorced with such condition viz. Debt That it the said Defendant King shall procure one I.S. to make reasonable recompence to the
their amendment makes alteration of the substance of the pleading or of the Verdict as 20 H. 6. 15. In Trespass the Plaintiff declared of a continuando usque diem impetrationis brevis viz. 18. die Martii where the Teste of the Writ was 2 die Januarij the Defendant pleaded to Issue which was found for the Plaintiff and that Misprision of the Teste or date of the Writ could not be amended And no amendment upon this Stat. of 27 Eliz. two things are to be considered First that the Iudges in such amendment medle not with matter nor alter the substance Secondly that they do not amend but according to their judicial knowledge Anderson to the same intent for as it hath been said before the truth of the Case doth not appear unto us according to which we can judge and I conceive that upon any amendment upon this Statute we cannot take out one Roll and put in another and as our case is we cannot amend this defect without taking out the whole Roll and therefore in the Case of Leonard which was late Custos brevium here where in a Replevin he avowed for a Rent-service and upon especial Verdict the Case was that Sir Henry Isley held of the said Leonard by Fealty and the Rent mentioned in the Avowry and was attainted of high Treason and the King seised and granted the Land to the Plaintiff upon whom Leonard avowed for the Rent-service and I and my companions were agreed that the rent notwithstanding the seisure and grant of the King remained distrainable of common right but Leonard could not have return of the Cattel because he had avowed for a Rent-service now it appeareth to us upon the Verdict that he had right to so much rent but not to such a Rent but a Rent-seck distrainable of common right so a Rent in another degree and we also agreed that the Avowry was not amendable for then upon such amendment we ought to take out a whole Roll which was not intended by this Statute And he conceived also that in debt against Executors in the Debet detinet such a Writ shall not be amended by this Statute and he conceived that his exception to the Bar quod ad medietatem 60. Messuag c. parcel medietatis c. is relieved by this Statute for the meaning appeareth And also the exception that it is not expresly shewed that the Fine was engrossed in the same Term in which it was levied And Periam moved another matter Co. 1 Inst 71. b. 72. a. if now the parties demurring in Law as to part of the Land in demand and being at Issue upon the residue if the Court shall adjudge the matter in Law before the Issue be tried or not 32 H. 6. 5 6. In Trespass for taking of his Cattel the Defendant as to parcel pleaded not guilty and as to the remnant pleaded another Plea upon which the parties did demur and there they proceeded to trial before the matter in Law determined and found for the Plaintiff and he had Iudgment thereupon for the damages but the costs were suspended until c. And the Defendant brought his Writ of Error 48 E. 3. 15. In an Action of Wast as to parcel the Defendant pleads no Wast and as to the rest pleaded matter in Law upon which there was a demurer joyned It was holden that the Issue should not be tried until the matter in Law be determined But it was said by Fulthorpe in Trespass if the Defendant to parcel plead the Enquest and to other parcel matter in Law in such case he should proceed to trial presently and damages should be taxed of the whole as well of that upon which there was a demurrer in Law as of that of which the Issue was joyned ad quod non fuit responsum See also 11 H. 4. 228. In Trespass the Defendant pleaded to Issue for part and for the residue did demur in Law Process for the trial issued before the matter in Law determined And Periam conceived that the Court might proceed in such Case the one way or the other As to the matter in Law whether the issue in tail upon this Fine should have the Averment he conceived that he should not have the said Averment for that it should be very perilous to the Inheritances of the subjects And he argued much upon the dignity of Fines out of Bracton and Glanvil whom he called Actores non Authores Legis that Fines at the common Law were of great authority until the Statute of West 2. And afterwards by the Statute of 34 E. 3. of non-claim from whence they became to be of so little value in Law that they were accounted no other than Feoffments upon Record so as thereby no assurance was of Inheritances but a general incertainty until the Statute of 4. H. 7. by which Statute they were restored to their ancient power and virtue After which Statute many shifts were devised to creep out of it So as the Statute of 32 H. 8. was made to take away all questions and ambiguities which were conceived upon the said Statute of 4 H. 7. And therefore we who are Iudges ought to frame our Iudgments for the maintaining of the authority of Fines for so the possessions and inheritances of the Subjects shall be preserved And that is the reason that if a stranger levy a Fine of my Land in my name that I have not any remedy but a Writ of Deceit against him who levyes the Fine so if a Feme-covert levyeth a Fine of her Land as a Feme-sole the same shall bind her after the coverture if the Husband do not enter upon the Conusee during the coverture and interrupt the possession gained by the Fine And 17 E. 3. and our Books are very plentiful to this purpose that the Law doth aerge admit of such allegations against such Fines A Fine was pleaded in Bar of Land in A. B. and C. he against whom it was pleaded was not received to aver against the supposal of the Fine that there was no such Town or Hamlet as A. 46 E. 3. 5. A woman Tenant in tail had Issue a Daughter who was inheritable to the tail the Daughter took a Husband they both living the Mother and during her seisin levied a Fine of the Land entailed to a stranger sur conusans de droit come ceo c. who rendred the Land to the Husband and Wife in specil tail the Husband died having Issue the Wife took another Husband had Issue and died the Husband to entitie himself to the Land as Tenant by the curtesy would in pleading have averred the seisin of the Mother at the time of the Fine levyed and he could not and yet he was a stranger to the Fine but he was privy to the estate and his claim was by her who levyed the Fine 6 E. 3. 46. Fitz. Averment 40. In a Writ of Entry sur dissei sin the Fine of the
petit quod inquiratur per patriam praedict Brett similiter It was moved that the parties should replead for this matter upon which they are at Issue scil the appearance is not triable by Iury but by the Record And the Court was clear of opinion that the parties should replead for the cause aforesaid And it was moved by the Lord Anderson that if A. be bound to appear in the Kings Bench at such a day and A. at the said days goe to the Court but there no process is returned then the party may go to one of the chief Clerks of the Court and pray him to take a Note of his appearance And by Nelson we have an acient form of entry of such Appearance in such Cases Ad hunc diem venit I. S. propter indemnitatem suam Manucaptorum suorum petit quod comparentia sua in Curia hic recordetur And see for the same 38 H. 6. 17. And afterwards the Lord Anderson inspecto Rotulo ex assensu sociorum awarded a Repleader And so by Nelson it hath been done oftentimes here before and put in ure The same Law is where at the day of appearance no Court is holden or the Iustices do not come c. he who was bound to appear ought to have an Appearance recorded in such manner as it may be and if the other party pleadeth Nul tiel Record it behoveth that the Defendant have the Record ready at his peril for this Court cannot write to the Iustices of the Kings Bench for to certifie a Record hither CXV Baxter and Bales Case Mich. 29 30 Eliz. In the Common Pleas. Debt not extinct by administration BAxter brought Debt upon a Bond as Executor of I. against Bale who pleaded that the Plaintiff after the death of the Testator was cited to appear before the Ordinary or his Commissary to prove the Will of the said I. and at the day of his appearance he made default upon which the Ordinary committed Letters of Administration to the Defendant by force of which he did administer so the debt is extinct c. but the whole Court was clear of opinion that the debt was not extinct for now by the probate of the Will the administration is defeated and although the Executor made default at the day which he had by the Citation before the Ordinary yet thereby he is not absolutely debarred but that he may resort to the proving of the Will whensoever he pleaseth But if he had appeared and renounced the Executorship it had been otherwise and the debt is not extinct by the Administration in the mean time CXVI Mich. 29 30 Eliz. In the Common Pleas. IN a Franchise the parties are at Issue upon a matter triable out of the Franchise And it was moved if now the Record should be sent into the Common Pleas and there tryed and after trial sent back into the Franchise Which Periam and Anderson utterly denied and by Periam there is no reason that we should be their Ministers to try Issues joyned before them And it is not like 2 Len. 37. where in a Liberty or Franchise a Forrein Voucher is to warrant Lands in such cases we shall determine the Warranty but that is by a special Statute of Glocester cap. 12. And Nelson Prothonotary said that such an Issue was tryed here of late Quod nota CXVII The Earl of Arundel and the Lord Dacres Case Mich. 29 30 Eliz. At Serjeants Inne PHilip Earl of Arundel and the Lord William Howard his Brother marryed the Daughters and Co-heirs of the late Lord Dacres And now came Francis Lord Dacres as heir male of the said Family and claimed the Inheritance c. And after long sute betwixt both parties they submitted themselves to the award of Gilbert Lord Talbot and of Arthur Lord Grey of Wilton and Windham and Periam Iustices And before them at Serjeants Inne the matter was well debated by the Council learned on both sides and as unto Greistock Lands parcel of the Lands in question the Case was That Tenant in tail makes a Feoffment in fee unto the use of himself for his life the Remainder in tail to his eldest Son with divers Remainders over with a Proviso that if any of the Entailees do any act to interrupt the course of any entail limited by the said Conveyance that then the use limited to such person should cease and go to him who is next inheritable And afterwards Tenant in tail dieth his eldest Son to whom the use in tail was first limited entreth and doth an Act against the said Proviso and yet held himself in and made Leases the Lessees enter the Lessor dieth seised his Heir being within age and in ward to the Queen It was holden by Shutleworth Serjeant Yelverton Godfrey Owen and Coke who were of Council with the Heirs general of the Lord Dacres that here is a Remitter for by this Act against the Proviso the use Remitter and so the possession doth accrue to the enfant Son of him to whom the use in tail was limited by the Tenant in tail Then when the Tenant in tail after his said Feoffment holds himself in this is a disseissin for a Tenancy by sufferance cannot be after the cesser of an estate of Inheritance But admit that he be but a Tenant at sufferance Hâ—b 255. Dy. 54. yet when he makes Leases for years the same is clearly a disseisin and then upon the whole matter a Remitter and although the Enfant taketh by the Statute yet the right of the tail descending to him afterwards by the death of his Father doth remit him as if Tenant in tail maketh a Feoffment in fee to the use of himself for life the Remainder in tail to his eldest Son inheritable to the first intail notwithstanding that the eldest Son takes his Remainder by the Statute and so be in â—â— force thereof yet when by the death of his Father the right of the Entail descends to him he is remitted CXVIII Butler and Ayres Case Mich. 29 30 Eliz. In the Common Pleas. Dower BUtler and his Wife brought a Writ of Dower against Thomas Ayre Son and Heir of Bartholmew Ayre first Husband of the said Margaret Wife of the Plaintiff and demanded Dower of Lands in A. and B the Tenant pleaded never seised que Dower and the Iury found that the said Bartholmew was seised during the Coverture de omnibus tenementis infra script preterquam the Tenements in sic ut dicta Margareta dotari potuit Exception was taken to this Verdict because that this preterquam c. doth confound the Verdict To which it was said by the Court that the preterquam is idle and surplusage for it is of another thing than that which is in demand and the seisin of the first Husband of Lands in A. and B. is confessed and the preterquam works nothing Another matter was objected because here the Iury have assessed damages
and damages and in an Action upon the Case brought upon that promise the Plaintiff was barred for here is not any consideration for they bailed the Servant of their own head without the request of the Master and the matter which is alledgged for consideration is executed before the Assumpsit and the promise was not before the enlargment and the said bailment was not at the instance Claytons Rep. 45. 1 Cro. 756. or request of the Master And the Case of one Hudson was cited adjudged in the Kings Bench The Defendant in consideration that he was Administrator and natural Son of the Intestate and that the goods of his Father have come to his hands promiseth to pay the debt to the Plaintiff And in an Action upon the Case upon that promise the Defendant pleaded he made no such promise and it was found that no goods came to the hands of the Defendant And it was holden that the consideration that he was Administrator and Son to the Testator was not of any force to maintain the Action and afterwards in the principal Case the Iudgment was affirmed And it was moved by Coke that Iudgment should not be given against the Executor of his own goods if he had not goods of the Testator for the charge doth not extend beyond the consideration i. e. That the goods of the Testator came to the hands of the Defendant But Wray Iustice was of opinion that Iudgment shall be of his proper goods as in Case of confession Kemp Secondary if the Action be brought upon Assumpsit of the Testator Iudgment shall be of the goods of the Testator but of the promise of the Executor of his own goods but the Original Iudgment which is now affirmed was general CXXII Savel and Woods Case Hill. 30 Eliz. In the Kings Bench. 1 Cro. 71. 3 Len. 203. 265. Post 128. THe Case was That a Parson did Libel in the spiritual Court against a Parishoner for Tythes of such Lands within his Parish the Defendant came into the Kings Bench and surmised and that he and all those whose estate he hath in the Lands out of which the Tythes are demanded have used to pay every year five shillings to the Parish Clark of the same Parish for all the Tythes out of the same place And it was argued by Coke that that could not be for a Parish Clark is not a person corporate nor hath succession But if he had prescribed that they had used to pay it to the Parish Clark to the use of the Parson it had been good Also he ought to shew that the Parson ought of right to find the Parish Clark c. And he cited the Case of Bushie the Parson of Pancras who libelled in the Spiritual Court for Tithes The Defendant to have a prohibition did prescribe that he and all those c. had time out of mind c. used to pay to the Vicar c. and at last a Consultation was awarded because it was triable in the Ecclesiastical Court for both parties as well Vicar as Parson are spiritual persons and the modus decimandi is not in question but cui solvend And at another day it was agreed by the Iustices that of common right the Parson is not tied to find the Parish Clark for then he should be said the Parsons Clark and not the Parish Clark But if the Parson be tied to find such a Clark Challenge and such a sum hath been used to be paid to the Parish Clark in discharge of the Person the same had been a good prescription and so by way of composition and by Clench Tythes are to be paid to spiritual Persons but a Parish-Clark is a Lay-person And afterwards the Court granted a Consultation CXXIII Higham and Reynolds Case Hill. 30 Eliz. In the Kings Bench. IN an Action of Trespass the Plaintiff declared that the Defendant 1 Maii 28 Eliz. cut down six posts of the house of the Plaintiff at D. The Defendant doth justifie because that the Free-hold of the house 10 Aprilis 27 Eliz. was to I. S. and that he by his commandment the same day and year did the Trespass c. upon which the Plaintiff did demur in Law because the Defendant did not traverse without that that he was guilty before or after And the opinion of Wray was that the traverse taken was well enough because the Free-hold shall be intended to continue c. Vide 7. H. 7. 3. But all the other three Iustices were of a contrary opinion to Wray But they all agreed that where the Defendant doth justifie by reason of his Free-hold at the day supposed in the Declaration there the traverse before is good enough And afterwards Iudgment was given against the Defendant CXXIV Knight and Footmans Case Hill. 30 Eliz. In the Kings Bench. IN Trespass by Knight against Footman the Case upon the pleading was that one Margaret had issue two Sons Richard and Thomas Surrender of Copy-hold Land. and surrendred to the use of Richard for life and afterwards to the use of Thomas in Fee they both Thomas being within age surrender to the use of one Robert â—ap John in Fee who is admitted Richard dieth Co 1 Inst 248. Thomas dieth having issue A. who is also admitted and enters into the Land and if his entry be lawful or that he be put to his plaint in the nature of a Dum fuit infra aetatem was the Question And Wray was clear of opinion that it was And if a man seised of Copy-hold Land in the right of his Wife or Tenant in tail of a Copy-hold doth surrender to the use of another in Fee the same doth not make any discontinuance but that the issue in tail and the Wife may respectively enter 1 Cro. 372. 380. 391. 483. 717. More 596. and so was it holden in the Serjeants Case when Audley who afterwards was made Chancellor of England was made Serjeant and afterwards it was adjudged that the entry of the Enfant was lawful CXXV Sir Wollaston Dixies Case Mich. 29 Eliz. In the Exchequer AN Information was in the Exchequer against Sir Wollaston Dixie upon the Statute of Vsury upon not guilty pleaded Information upon the Statute of 13. Eliz of Usury The Informeâ— gave in evidence an usurious Contract upon a bargain of Wares The opinion of the Court was that the Information being exhibited for the loan of money that the Evidence was not pursuing nor leading to the Issue And yet the Iury against the opinion of the Court upon that evidence found the Defendant guilty And it was moved in arrest of Iudgment that the Evidence did not maintain the Information nor prove the Issue ex parte Querentis and it was said there are three things within the Statute i. three words i. bargain loan and cheivizance and these three are several things and therefore if the Information be conceived upon loan and the Informer giveth in Evidence a corrupt
which process issued out of the Exchequer to take and seize all the goods and two parts as well of all the Lands Tenements and Hereditaments Leases and Farms of such Offender as of all other the Lands Tenements and Hereditaments liable to such seisure or to the penalties aforesaid by the true meaning of this Act leaving the third part c. And Popham Attorney General moved If a Recusant hath more than a third part of his Lands in Copy-hold land if this Copy-hold as to the surplusage shall be liable to the penalty Manwood chief Baron conceived that the Copy-hold is liable in this Case by the Statute although not directly by express words yet within the intent of it and that by reason of these words all other the lands c. liable to such seisure c. Walmes Serjeant Copy-hold is not liable to a Statute Merchant or Staple also if the Queen hath the Copy-hold how shall the Lord have the services which the Queen cannot do Also a Copy-hold is not an Hereditament within this Statute which extends only to Hereditaments at the common Law and not by custom Also in Acts of Parliaments which are enacted for forfeiture of Lands Tenements and Hereditaments by those words they shall not forfeit Copy-holds Clark Baron this Statute was made to restrain Recusants from taking the benefit of their Livings and Copy-holds are their Livings as well as Free-holds and by this Statute the Queen shall not have every estate in the Copy-hold Land but only the taking of the profits but the scope of the Statute was to impair the Livings of Recusants and that by driving of them for want of maintenance to repair to the Church Walmesley If the Statute had given to the Queen to seise two parts of their livings then the Statute had extended to Copy-holds Manwood when a Statute is made to transfer an estate by name of Lands Tenements and Hereditaments the Copy-hold is not within such Statute but if the Lords Signiory his Customs and Services are not to be impeached or taken away by such Statute then it is otherwise for such Statute doth not make another Tenant to the Lord And by him Copy-holder shall pay Subsidies and he shall be assessed according to the value of his Copy-hold as well as of his Freehold and in this Case the Queen is to have the profits of the Lands only but no estate At another day the case was argued for the Recusants by Snag Serjeant and he said that these words Lands Tenements and Hereditaments are to be construed which are such at the Common Law not by Custom If I give to one all my Lands Tenements and Hereditaments in D. my Copy-holds do not pass and Statutes which are made to take away Possessions and Hereditaments out of persons ought to be strictly taken and not by Equity The Statute of 13 Eliz. of Bankrupts enacts that the Commissioners may sell the Lands and Tenements of the Bankrupts if the Statute had not made a further provision the Commissioners could not sell Copy-hold Lands but there are express words in the Statute for that purpose i.e. as well copy as fee Also the Staute of 13 Eliz. cap. 4. of Auditors and Receivers of the Queen doth not extend to Copy-holds And it should be a great prejudice to the Lords of such Copy-holds that the Queen should have the Land. Popham the intention of the Law somtimes causes a liberal construction of a Statute in the letter of it What Statutes extend to Copy-holds somtimes a strict and precise exposition and here it appeareth that the intention of the Statute was that the Queen should have all the goods of the offender and two parts of the Lands c. Leases and Farms and the Recusant but the third part of all his Lands only And therefore the Recusant is not to have any other thing but only that which is allotted to him by the Statute and that is the third part which is all the maintenance which the Law allows him and then if Copy-holds be not within this Statute a Recusant who hath great possessions in Copy-holds and hath no Free-hold should be dispunishable and hath his full maintenance against the meaning of the Statute And he said that many things are within the meaning of a Statute â—y 5. 6. Co. 3. Inst 109 Yel 60. 12 Co. 12. which are not within the words as Bonds Obligations and Specialties made to Recusants shall pass to the Queen by this Statute by force of the word goods according to the meaning of the Statute and all personal things are within the Statute c. profits of the Lands Advowsons and the like and the very scope of the Statute was to take away from Recusants all personal things whatsoever and two parts of real things as Leases Farms Lands Tenements c. with the intent that with the superfluity of their goods and possessions she should not maintain Iesuits and Seminary Priests people more dangerous than the Recusants And by him Lands in ancient demesne are liable to the penalties by the Statute although not by express words So if a Recusant hath Lands extended by him upon a Statute acknowledged unto him that Interest is not properly a Lease or Farm yet it is Land within this Statute liable c. And if I be Tenant by Elegit or Statute c. of Lands in D. not having other Lands in the said Town and I grant all my Lands in D. my Interest ut supra shall pass contrary If I have other Lands there And I grant that if I have Copy-hold Lands in D. and none other and I grant all my Lands in D. Copy-hold Land shall not pass by such assurance because that Copy-hold cannot pass but by surrender If I put out a Copy-holder out of his Lands the same is a Disseisin to the Lord of whom the Copy-hold is holden And if I levy a Fine of such Lands and five years pass not only the Lord is bounden as to his Free-hold and Inheritance but also the Copy-holder for his possession for the intent of the Statute of 4 H. 7. was to take away controversies litibus finem imponere 5 Co. 124. and contention may be as well for Copy-hold as for Land at the common Law. One hath a Lease for years to begin at a day to come he who hath the Free-hold thereof is disseised the Disseisor levieth a Fine five years pass he who hath the Free-hold is bound by it but not he who hath the Interest for years in futuro as it hath been lately adjudged But he said That if that point were to be handled again the Law would be taken to the contrary but it is clear that a Lease in possession shall be bound by such Fine And as unto any prejudice to the Lord it is clear that notwithstanding that the Queen hath the Copy-hold Land yet the Lord shall have the Rent during the possession of the Queen which is the
Kings Bench. PRowse brought an Action upon the Case against Cary for words That the Plaintiff did subborn procure and bring in false Witnesses in such a Court at Westminster c. The Defendant pladed Not guilty And it was found that he did procure and brought in false Witnesses but was acquitted of the suborning It was objected 1 Cr. 296. 554. 607. That the Action doth not lie for it may be that the Defendant did not know that he would depose falsly Thou art a forger of false Writings are not actionable and so it was adjudged for it may be understood of Letters of small importance but that Exception was not allowed for it shall be taken in malam partem and cannot be spoken of any honest man. CXXXII Pasch 30 Eliz. In the Kings Bench. A. Was bounden in an Obligation to B. upon condition that if A deliver to B. twenty Quarters of Corn the nine and twentieth of February next following datum presentium that then c. and the next February had but eight and twenty days And it was holden that A. is not bounden to deliver the Corn until such a year as is Leap-year for then February hath nine and twenty days and at such nine and twentieth day he is to deliver the Corn and the Obligation was holden good CXXXII Allen and Palmers Case Pasch 30 Eliz. In the Kings Bench. THe Case was a Copy-holder did surrender his Lands to the use of a stranger for life Copy-holder surrenders where his heir shall be in by purchase 2 Roll. 416. Co. 1 Inst 226. and afterwards to the use of the right Heirs of the Copy-holder who afterwards surrendred his Reversion to the use of a stranger in Fee died and the Tenant for life died and the right Heir of Palmer the Copy-holder entred And by Cook nothing remained in the Copy-holder upon the said surrender but the Fee is reserved to his right Heirs for if he had not made any such second surrender his Heir should be in not by descent but by purchase And the common difference is where a surrender is to the use of himself for life and afterwards to another in tail the remainder to the right Heirs of him who surrendreth there his Heirs shall have it by descent contrary where the surrender hath not an estate for life or in tail limited to him for there his Heir shall enter as a purchasor as if such use had been limitted to the right Heirs of a stranger And by him if a Copy-holder surrender to the use of his right Heirs the Land shall remain in the Lord until the death of the Copy-holder for then his Heir is known c. See Dyer 99. The Husband made a Feoffment to the use of his Wife for life and afterwards to the use of the right Heirs of the body of the Husband and Wife begotten they have issue the Wife dieth the issue cannot enter in the life of his Father for then he is not his Heir See Dyer 7 Eliz. 237. The Husband is sole seised in Fee and levieth a Fine of the Land to the use of himself and his Wife and the Heirs of the Husband and they render the Land to the Conusor for the life of the Husband the remainder to B. for life the remainder to the right Heirs of the Husband The Husband dieth B. dieth Now the Wife shall have the Land for the life of the Wife for she shall not lose her estate by that render and this remainder to the right Heirs of the Husband is void and the Land and estate in it is in him as a Reversion and not as a Remainder And a man cannot tail a Remainder to his right Heirs whilest he is living unless it begin first in himself See Br. 32 H. 8. Gard. 93. CXXXIV Pearle and Edwards Case Pasch 30 Eliz. In the Kings Bench. THe Case was that the Defendant had leased Lands to the Plaintiff rendring Rent for certain years Assumpsit Consideration 1 Cro. 94. and after some years of the Term expired the Lessor in consideration that the Lessee had occupied the Land and had paid his Rent promised the Plaintiff to save him harmless against all persons for the occupation of the Land past and also to come And afterwards H. distrained the Cattle of the Plaintiff being upon the Lands upon which he brought his Action Golding Here is not a sufficient consideration for the payment of the Rent is not any consideration for the Lessee hath the ocupation of the Land for it and hath the profits thereof and also the consideration is past Cook The occupation which is the consideration continues therefore it is a good Assumpsit as 4 E. 3. A Gift in Frank-marriage after the espousals and yet the marriage is past but the blood continues so here and here the payment of the Rent is executory every year and if the Lessee be saved for his occupation he will pay his Rent the better Godfrey If a man marrieth my Daughter against my will and afterwards in consideration of that marriage I promise him one hundred pounds the same is no good consideration 2 Len. 111. which Clench Iustice denied And afterwards the Plaintiff had Iudgment to recover his damages CXXXV Wakefords Case Pasch 30 Eliz. In the Kings Bench. Extinguishment of Copy-hold by Release THe Earl of Bedford Lord of the Manor of B. sold the Free-hold Interest of a Copy-holder of Inheritance unto another so as it is now no part but divided from the Manor and afterwards the Copy-holder doth release to the purchasor It was holden by the Court that by this Release the Copy-hold Interest is extinguished and utterly gone but if was holden that if a Copy-holder be ousted so as the Lord of the Manor is disseised and the Copy-holder releaseth to the Disseisor nihil operatur CXXXVI Docton and Priests Case Pasch 30 Eliz. In the Kings Bench. IN Trespass for breaking of his Close 1 Cro. 95. it was found by special verdict that two were Tenants in common of a house and of a close â—djoyning to the house and they being in the house make partition without deed of the house and the close see 3 E. 4. 9. 10. Partition without deed upon the Land is good enough Vide 3 H. 4. 1. And it seems by 3 E 4. Partition made upon the Land amounts to a Livery Vide 2 Eliz. Dyer 179. Partition by word out the County void 19 H. 6. 25. Betwixt Tenants in common not good without deed 2 Roll. 255. 47 E. 3. 22. being upon the Land it is good without deed Two Ioynt-tenants make partition by word make partition in another County the same is no partition for as to that matter the common Law is not altered by the Statute but as to compel such persons to make partition Wray Iustice conceived that the partition here being without deed was not good although made upon the Lands Vide 18 Eliz. Dyer 35.
made upon condition to pay certain mony at such a day and at the day the Feoffees make an Obligation to the Feoffor for the payment of it the same is no performance of the condition And by Periam If the Executor be taken in Execution for the debt of the Testator he may retain so much of the goods of the Testator amounting to the sum for which he is in Execution and it shall be accounted Assets in his hands Anderson If he to whom the Testator was endebted in 20 l. be endebted to the Executors in so much and the Executor in satisfaction of the debt of the Testator releaseth his debt the property shall be altered presently of the whole goods in the hands of the Executors so where the Debtor makes the Creditor his Executor And Iudgment was given for the Executors CLIV. Bears Case Pasch 30 Eliz. In the Common Pleas. Formedon A Formedon in the Discender was brought by Samuel Bear James Bear and John Bear of Lands in Gavel-kind and the Warranty of their Ancestor was pleaded against them in Bar upon which they were at Issue If Assets by discent And it was found by special verdict that Thomas Father of the Demandants was seised in Fee of the Lands supposed to be descended to the Demandants being of the nature of Gavel-kind and devised the same to the Demandants being his Heirs by the custom and to their Heirs equally to be divided amongst them Devise of Lands in Gavel-kind Owen 65. Dy. 350. 1 Cro. 431. More 594. 558. Sty 434. 3 Cro. 330. 443. 695. 696. And if the Demandants shall be accounted to be in of the Lands by descent or devise was the question for if by devise then they shall not be Assets Anderson Let us consider the devise by it self without the words equally to be divided amongst them And I conceive that they shall be in by the devise for they are now Ioynt-tenants and the survivor shall have the whole whereas if the Lands shall be holden in Law to have descended they should be Parceners and so as it were Tenants in common And although the words subsequent equally amongst them to be divided makes them Tenants in common yet that doth not amend the matter and so also was the opinion of Windham and Rhodes Iustices CLV Nash and Edwards Case Pasch 30 Eliz. In the Kings Bench. IN an Ejectione firmae by Nash against Edwards 1 Cro. 100. it was found by special verdict that one Dover Ancestor of the Plaintiff whose Heir he is being seised of certain Lands holden in Socage devised the same by word to his three Sisters And a stranger being present recited to the Devisor the said words of his Will and he did affirm them 3 Len. 79. And afterwards the said stranger put the said words in writing for his own remembrance but did not read them to the Devisor who afterwards died And it was moved If this devise being reduced in writing modo forma be good or not Spurling conceived that not for the Statute intends a Will in writing Devises but not such writing as is here without privity or direction of the Devisor and it is not like to the case of Brown and Sackvil 6 E. 6. Dyer 72. For the Notes were written by the commandment of the Devisor but here it doth not appear that the meaning of the Devisor was that the devise should be put in writing And devises in Law are favoured as the case in the Chancery was that Sir Richard Pexhal devised certain Lands to his Wife and the Scrivener inserted of his own head a condition scil that she should be chast which was disallowed by the Devisor himself for which after his death the condition although it was put in writing was void And by the whole Court the devise is void And by Wray 2 Len. 35. if he appoint A. to write his Will and it is written by B. it is void but if after he had written the Will if he had read it to the Devisor and he had confirmed it it had been a good Will which Gawdy granted And afterwards Iudgment was given that the Plaintiff should recover Stone and Withypolls Case Trin. 30 Eliz. Rot. 771. In the Kings Bench. STone brought an Action upon the Case against Dorothy Withypol the Executrix of W. Withypol her Husband 1 Cro. 126. Owen 94. 9 Co. 94. declared that where hersaid Husband for certain yards of Velvet of the value of fourteen pounds pro diversis alijs mercimonijs was endebted to the Plaintiff in the sum of ninety two pounds and made the Defendant his Executrix died that after his death he came to the Defendant and demanded of her the said debt who gave to him such answer Forbear me until Michaelmas and then I will pay it you or put you in sufficient security for the true payment thereof And declared further that at Michaelmas aforesaid the Defendant did not pay nor hath found any security and shewed a request to which the Defendant said that the said Testator at the time of the said Contracts for the Velvets and other Wares was within age Assumpsit And upon that Bar the Plaintiff did demur in Law. Egerton Solicitor for the Plaintiff As I conceive these Contracts made by the Plaintiff are not meerly void so that if an Action of Debt or upon the Case had been brought against the Testator himself he could not have pleaded upon the matter Nihil debet or Non Assumpsit or Non est factum but he ought to avoid the matter by special pleading and therefore here it is a good consideration and I conceive that if the Testator at his full age had assumed to pay the debt that that promise would have bound him 9 Eliz. it was the Case of the Lord Grey his Father was endebted to diverse Merchants upon simple Contracts and died seised of diverse Lands which descended to his Son and Heir in Fee the Creditors demanded their debts of the Heir who answered unto them if my Father were endebted unto you I will pay it and upon that promise an Action was adjudged maintainable although the Heir by the Law was not chargeable and also here the Defendant is to have ease and shall avoid trouble of Suits for perhaps if she had not made such promise the Plaintiff would have sued her presently which should be a great trouble unto her and therefore it is a good consideration Cooke contrary No consideration can be good if not that it touch either the charge of the Plaintiff or the benefit of the Defendant and none of them is in our case for the Plaintiff is not at any charge for which the Defendant can have any benefit for it is but the forbearance of the payment of the debt which she was not compellable to pay and as to the suit of the Chancery the same cannot make any good consideration for there is not any matter
in the Case which gives cause of suit in Chancery for they will not order a matter there which is directly against a Rule and Maxim of the common Law. As if a Feme Covert be bound c. and the Obligee bring her into the Chancery and if a man threaten me that if I will not pay to him ten pounds he will sue me in Chancery upon which I promise to pay it him no Action will lye And an Infant is not chargeable upon any contract but for his meat drink and necessary Apparel 19 Z. 4. 2. And in Debt upon such necessary Contract the Plaintiff ought to declare specially so as the whole certainty may appear upon which the Court may judge if the expense were necessary and convenient or not and upon the reasonableness of the price for otherwise if the necessity of the thing and reasonableness of the price doth not appear the Chancellor himself would not give any remedy or recompence to the party Wray Justice conceived that the Action would not lye for the contract was void and the Infant in an Action against him upon it may plead Nihil debet And if an Infant sell goods for money and doth not deliver them but the Vendee takes them he is a Trespassor but if the Infant had been bounden in an Obligation with a surety and afterwards at his full age he in consideration thereof promiseth to keep his surety harmless upon that promise an Action lyeth for the Infant cannot plead non est factum which see Mich. 28 29 Eliz. in the Case of one Edmunds And afterwards it was adjudged against the Plaintiff CLVII Charnock and Worsleys Case Trin. 30 Eliz. Rot 833. In the Kings Bench. Owen 21. 1 Cr. 129. CHarnock and his Wife brought a Writ of Error against Worsley the Case was that the Husband and Wife the Wife being within age levyed a Fine and the Wife upon inspection was adjudged within age it was moved if the Fine should be utterly reversed or as to the Wife only should stand against the Husband by Godfrey the Book of 50 E. 3. 6. was vouched where it is said by Candish that where such a Fine is reversed the Plaintiff shall not have execution till after the death of the Husband and by Coke and Atkinson a Fine acknowledged by the Husband and Wife is not like to a Feoffment made by them for in case of Feoffment something passeth from the Husband but in case of a Fine all passeth out of the Wife and the Conusee is in by her only And Atkinson shewed a Precedent in 2 H. 4. where the Fine was reversed for the whole and also another Precedent P. b. H. 8. Rot. 26. A Fine levyed betwixt Richard Elie Plaintiff and N. Ford. and Jane his Wife Deforceants the Wife being within age and Iudgment was given quod finis praedict adnulletur pro nullo penitus habeatur and that the Husband and Wife should be restored and thereupon a Writ issued to the Custos Brevium to bring into Court the Foot of the Fine and it was presently cancelled in Court. Wray this is a strong Precedent and we will not varse from it if other Precedents are not contrary Gawdy who was the same day made Iustice the Fine cannot be reversed as to one and stand as to the other and resembled it to the Case of Littleton 150. where Land is given to Husband and Wife in tail before coverture and the Husband aliens and takes back an estate to him and his Wife for their lives they both are remitted for the Wife cannot be remitted if the Husband be not remitted And a Precedent was cited to the contrary 7 Eliz. where the Case was that the Husband and Wife levyed a Fine the Husband died the Wife being within age the Wife took another Husband and they brought a Writ of Error and the Wife by inspection adjudged within age Fine reversed as to one to stand good against another and the Fine was reversed as to the Wife and her Heirs And it was argued by Golding that here the Writ of Error ought to abate for the Writ is too general whereas it ought to be special Ex querela A.B. nobis humillime supplicantis accepimus c. See the Book of Entries 278. Also the purclose of the Writ is ad damnum impsorum the Husband and the Wife whereas the Wife only hath loss by it and as to the Fine it self he conceived that it should be reversed but as to the Wife as if a man of full age and a man within age levy a Fine in a Writ of Error brought the Fine shall be reversed as to the Infant only and shall stand against the other and he cited the Case of the Lord Mountjoy 14. Eliz. Where a man seised in the right of his Wife acknowledged a Statute and afterwards he and his Wife levyed a Fine and he said that during the life of the Husband the Conusee of the Fine should hold the Land charged with the Statute Also in the Precedent of 2 H. 4. the Iudgment is that propter hunc alios errores the Fine should be reversed and I conceive that another Error was in the said Writ for which the Fine might be reversed in all viz. the Fine was levyed of two parts of the Manor of D. without saying in tres partes dividend And see that where two parts are demanded in a Writ 3 Co. 58 59. Modern Rep. 182. the Writ shall say so Brief 244 Coke contrary and as to the last matter I confess the Law is so in a Writ but not in a Fine for the same is but a Conveyance for it I be seised of a Manor and I grant to you two parts of the said Manor it is clear it shall be intended in three parts to be divided And as to the principal matter I conceive when the Fine is levyed by the Husband and Wife it shall be intended that the Land whereof c. is the Inheritance of the Wife if the contrary be not shewed and therefore if the party will have an especial Reversal he ought to shew the special matter as in Englishes Case A Fine was levyed by Tenant for life and he in the reversion being within age bringeth a Writ of Error now the Fine shall be reversed as to him in the Reversion but not as to the Tenant for life but here it shall be intended the Inheritance of the Wife and that the Husband hath nothing but in the right of his Wife and therefore she shall be restored to the whole for nothing passeth from the Husband but he is named with his Wife only for conformity 11 H. 7. 19. A. takes to Wife an Inheretrir who is attainted of Felony the King shall not have the Land presently by which it appeareth that all is in the Wife and she shall be restored to the whole and the Iudgment shall be according to the Presidents cited
otherwise it should be idle And afterwards Iudgment was given against the Queen CLXIII Piers and Leversuchs Case In Ejectione firmae Trin. 30 Eliz. In the Kings Bench. IT was found by special verdict that one Robert Leversuch Grand-father of the Defendant was Tenant in tail of certain Lands whereof c. and made a Lease for years to one Pur. who assigned it over to P. father of the Plaintiff Robert Leversuch died W. his Son and Heir entred upon P. who re-entred W. demised without other words the Land to the said P. for life the remainder to Joan his Wife for life the remainder to the Son of P. for life with warranty and made a Letter of Attorney therein to enter and deliver seisin accordingly P. died before that the Livery was executed and afterwards the Attorney made livery to Joan. W. died Ed. his Son and Heir entred upon the Wife she re-entred and leased to the Plaintiff who upon an ouster brought the Action Heale When P. entred upon W. Leversuch the issue in tail he was a disseisor and by his death the Land descending to his Heir the entry of W. Leversuch the issue in tail was taken away 3 Cro. 222. Cook contrary P. by his entry was not a disseisor but at the Election of W. for when P. accepted such a deed from W. it appeareth that his intent was not to enter as a disseisor and it is not found that the said P. had any Son and Heir at the time of his death and if not then no descent and there is not any disseisin found that P. expulit Leversuch out of the Land. And Iudgment was given against the Plaintiff And Cook cited a Case which was adjudged in the Common Pleas and it was the Case of Shipwith Grand-father Tenant in tail Father and Son The Grand-father died the Father entred and paid the Rent to the Lessor and died in possession and adjudged that it was not any descent for the paying of the Rent doth explain by what title he entred and so he shall not be a Disseisor but at the Election of another CLXIV Severn and Clerks Case Trin. 30 Eliz. In the Kings Bench. â—ts THe Case was that A. by his Deed Poll recited That whereas he was possessed of certain Lands for years of a certain Term By good and lawful conveyance he assigned the same to I. S. with divers Covenants Articles and Agreements in the said deed contained which are or ought to be performed on his part It was moved if this recital whereas he was be an Article or Agreement within the meaning of the condition of the said Obligation which was given to perform c. Gawdy conceived that it is an agreement For in such case I agree that I am possessed of it for every thing contained in the deed is an Agreement and not only that which I am bound to perform As if I recite by my deed that I am possessed of such an interest in certain Land and assign it over by the same deed and thereby covenant to perform all Agreements in the deed if I be not possessed of such Interest the covenant is broken And it was moved if that recital be within these words of the condition which are or ought to be performed on my part And some were of opinion that it is not within those words for that extends only in futurum but this recital is of a thing past or at the least present Recital 2 Cro. 281. Yyl. 206. Clench Recital of it self is nothing but being joyned and considered with the rest of the deed it is material as here for against this recital he cannot say that he hath not any thing in the Term. And at the length it was clearly resolved that if the party had not that Interest by a good and lawful conveyance the Obligation was forfeited CLXV Page and Jourdens Case Trin. 30. Eliz. In the Kings Bench. IN Trepass betwixt Page and Jourden the case was A Woman Tenant in tail took a Husband who made a Feoffment in Fee and died The Wife without any Entry made a Lease for years It was moved that the making of this Lease is an Entry in Law. As if A. make a Lease for years of the Land of B. who enters by force of that Lease A general entry amounts to a disseisin now the Lessor without any Entry is a Disseisor And it was resolved that by that Leasâ— the Free-hold is not reduced without an Entry CLXVI Havithlome and Harvies Case Trin. 30. Eliz. In the Kings Bench. Action upon the Statute of 5 Eliz. cap. 9. 1 Cro. 130. 3 Cro. Goodwin vers West HAvithlome brought an Action upon the Statute of 5 Eliz. cap. 9. against Harvy and his Wife for the penalty of ten pounds given by the said Statute against him who was served with process ad testificandum c. and doth not appear not having any impediment c. and shewed that process was served upon the Defendants Wife and sufficient charges having regard to her degree and the distance of the place c. tendred to her and yet she did not appear And it was found for the Plaintiff It was moved in arrest of Iudgment that the Declaration is not good because the Plaintiff in setting forth that he was damaged for the not appearance of the Wife according to the process hath not shewed how damnified Also it was moved that a Feme Covert is not within the said Statute for no mention is made of a Feme Covert and therefore upon the Statute of West 2. cap. 25. If a Feme Covert fail of her Record she shall not be holden disseisseress nor imprisoned Also here the Declaration is that the Plaintiff tendered the charges to the Wife where he ought to have tendered the same to the Husband To these three Exceptions it was answered 1. That although the party be not at all damnified yet the penalty is forfeited 2. Feme Coverts are within the said Statute otherwise it should be a great mischeif for it might be that she might be the only witness And Feme Coverts if they had not been expresly excepted had been within the Statute of 4 H. 7. of Fines 3. The wife ought to appear therefore the tender ought to be to her And afterwards Iudgment was given for the Plaintiff CLXVII Dellaby and Hassels Case Pasch 30 Eliz. In the Kings Bench. IN an Action upon the Case 1 Cro. 132. the Plaintiff declared that the Defendant in consideration that he had retained the Plaintiff to go from London to Paris to Merchandize diverse goods to the profit of the Defendant promised to give to him so much as should content him and also to give him all and every sum of money which he should expend there in his Affairs and further declared that he was contented to have twenty-pounds for his labour which the Defendant refused to pay And exception was taken to the Declaration because there is
parties as if the condition were to go to Rome And as to the Request he conceived that it ought to be shewed specially and certainly for it is for the benefit of the Covenantee for without request the Action doth not lie which Clench granted And it was holden by the whole Court that the bar shall not help the insufficient Declaration No more if the Defendant plead Non Assumpsit yet the defect in the Declaration of a Request not duly shewed remaineth Gawdy The bringing of the Action is a Request Clench A Writ of Debt is a Praecipe for which there licet saepius requisitus is sufficient but a Writ of Covenant is not so CLXXI. Piers and Hoes Case Trin. 30 Eliz. In the Kings Bench. IN an Action of Trespass it was found by special verdict Trespass 1 Cro. 131. 1 Roll. 854. that A. seised of Land in the right of his Wife being her Ioynture by a former Husband he and his Wife made a Feoffment to a stranger and his Heirs Habend to the use of the stranger and his Heirs during the life of the Wife only Shutleworth The same is a forfeiture for if the same Feoffment had been without any use expressed Forfeiture then it should be to the use of the Feoffor and his Heirs and by consequence a forfeiture and as the case is here it is also a forfeiture for during the life of the Wife the use is expresly to the use of the Feoffee and his Heirs and the remainder of the Fee-simple is to the use of the Feoffor scil the Husband and his Heirs Popham I conceive that here is a forfeiture Owen 64. 2 Cr. 200 201. 3 Cr. 167. Hob. 373. for here are several limitations limitation of the estate unto one and of the use unto another And the words for the life of the Wife do not refer to the estate but to the use with proximum antecedens And he resembled the same to the case of Leonard Sturton in which he was of Councel A man granted Lands Habend unto the Grantee to the use of the Grantee and the Heirs of his body the same is no estate tail in the Grantee but only an estate for life for the Limitation of the use cannot extend the estate Cook contrary The case is that A. Wife of one Piers being Tenant for life of the Ioynture of the said Piers took to Husband Hoe they both by Deed grant totum suum Messuagium to one Clarke Habendum to him and his Heirs for the life of the Wife only I conceive that here is not any forfeiture for it is but one intire sentence And if there be a double construction of a deed that which is most reasonable shall be taken so as wrong be not done Construction of Deeds and therefore these words for the life of the Wife shall refer unto both scil the estate and the use and their intent was not to commit a forfeiture as appeareth by the words of the Deed for they grant solum messuagium and that was not but for the life of the wife ad solum usum of the Feoffee and his Heirs during the life of the Wife and violence should be offered to this word solum if the Feoffee or his Heirs should have ultra the life of the Wife and the word tantum cannot otherwise be expounded but that the estate for life only shall pass from them And he cited the Case of 34 E. 3. Avowry 258. A. gives Lands unto B. in tail and for default of such issue to the use of C. in tail rendring Rent the same render shall go to both the estates So a Lease for life to A. the remainder to B. to the use of C. the same use goeth out of both the estates and not only out of the Remainder so here upon the same reason Regula these words for the life of the wife shall refer to the first estate as well as to the use And in such Cases the rule of Bracton ought to be observed viz. Benignae faciendae sunt interpretationes verborum ut res magis valeat quam pereat As the Case in 6 H. 7. 7. in a Cessavit the Plaintiff counted that the Tenant held by Homage Fealty Sute at Court and certain Rent and in the doing of the services aforesaid the Defendant had cessed and in not doing of Homage and Fealty a man cannot cesse by two years But it was holden that the said Cessavit should be referred to such services only in which one might cease and that is Sute of Court and Rent And if pleadings shall have such favourable construction a multo fortiori shall a Deed 4 E. 3. Wast 11. A man leased for life and by the same deed granted power unto the Lessee to take and make his profit of the said Lands in the best manner should seem good to him without contradiction of the Lessor or his Heirs yet by those words it is not lawful for him to do wast for there it is said that in construction of Deeds we ought to judge according to that intent which is according to Law and Reason and not to that which is against reason See 17 E. 3. 7. accordingly so in the principal Case the words in the Deed of Feoffment shall be so expounded that the estate be saved and not destroyed Popham contrary The Cases put by Coke are not like to the Case in question For where the Rent is out of both estates the same is but reason for the Rent is in respect of the Land and because he departs with both estates it is reason the Rent issue out of both and the like reason is of the Case of an use for if a man makes a Lease for life to A. the Remainder over to B. the same shall be to their use respectively and if he do express the use the same shall be accordingly and shall bind both estates but there Clark hath two estates one by the common Law and the other by the Statute 3 Cro. 167. But the words subsequent for the life of the wife only cannot refer to both estates A. gives Lands to one his Heirs for forty years the same is but a plain Term for years But if a Feoffment in Fee be made to one his Heirs to the use of another for forty years there the Fee passeth to the Feoffee and the Term to Cestuy que use Gawdy conceived that it is not any forfeiture for these words during the life of the wife only were put in the Deed to express the intent of the parties and therefore the same shall not be void and he conceived that they were put in to exclude the forfeiture and therefore they shall serve for that purpose And afterwards it was resolved by all the Iustices except Gawdy that it was a forfeiture for by the Feoffment the Fee-simple passeth and that to the use of the Feoffor the estate and the use are several things and
by it self and the Declaration only enrolled Godfrey It was resolved in the Case betwixt Pendleton and Hunt Prohibition for tythes that an Agreement betwixt the Parson and any of his Parishioners is a good cause to grant a Prohibition if he libel in the Spiritual Court against such Agreement because the Spiritual Court cannot try it and they will not allow such Plea. Curia The Surmise is as a Writ for which if variance be betwixt the same and the Declaration all his naught CLXXVI Colebourn and Mixstones Case Intrat Hill. 31. Eliz. Rot. 146. Trin. 30. Eliz. In the Kings Bench. COlebourn was sued in the Spiritual Court for that being Executor to one Alice Leigh he had not brought in a true Inventory of all the goods of the said Alice but had omitted and left out a lease of two houses and this suit was at the pursuit of two Daughters of the Testator Colebourn sueth for a Prohibition and surmises and declares how this Lease is extinct and the matter was this H. Leigh was seised of a house called the Marigold and two other houses in London and leased the said two houses to one Alice Cheap for 21 years if she should live so long and afterwards made a Lease in Reversion of the said two houses to the said Alice Leigh for 21 years and afterwards he devised these two houses Devises and also the house called the Marigold to the said Alice Leigh for her life for to bring up his children and died after whose death the said Alice Leigh entred into the said house called the Marigold and took the rents and profits of the said two houses for the space of 7 years virtute testament praedict upon which Declaration the Defendants do demurr in Law. Coke the Declaration is not good and for the matter of it it is clear that by this devise unto Alice her Term in futuro is not extinct without her agreement to it And also in this Case the Devise is not for the benefit of the said Alice Leigh but of her children and she hath liberty to accept or refuse the said estate by devise and to make her election Extinguishment And the Plaintiff hath declared that she hath accepted the Rent reserved upon the Lease of the said two houses for 7 years And therein the Declaration naught in divers respects 1. He hath declared that the said Alice Leigh hath accepted the Rents of the said two houses by reason of the reversion virtue testament praedict by 7 years which is double and treble for acceptance of a Rent at one day scil one rent day is a sufficient election As if the Issue in tail after the death of his Ancestor who hath made a Lease not warranted by the Statute once accepts the Rent the Lease is affirmed but if in plea pleading the acceptance of the said Rent for 3 years be pleaded the same clearly is not good for no good Issue can be taken thereupon 2. This acceptance is not pleaded as the Law wills and in the phrase of the Law viz. to which devise she agreed but pleads the acceptance of the Rent which is matter of evidence the which is not good pleading As 5 H. 7. 1. One sweareth another to enter into his Land and the same to occupy for a certain time Estate executed the same is a Lease in Law and if in pleading the party is to make his title to the same Land he ought to plead it as an expres Lease and not as a Licence and if the Lease be traversed he may give the Licence in evidence Tanfield presently by the devise the estate for life is in the Devisee and the Term extinct by it and that is sufficient for the Plaintiff And if there was any disagreement the same is to be shewed on the other side But if Alice had not notice of the Devise but dieth before notice the same amounteth unto a disagreement And as to the pleading of the Agreement I conceive it s well enough pleaded for if the Lease had not been she might have entred and then if such Entry had been pleaded it had been good enough and then because she could not enter by reason of the said Lease she hath taken the rents and profits which is an actual agreement and as strong as an Entry Also we have shewed that she had entred into the house called the Marigold Assent not to be apportioned of which the Devisor died seised in possession and that is a sufficient agreement for the whole for it is an entire Legacy As 18 E. 3. Variance 63. If the Reversion of three acres be granted and the Tenant for life attorneth for one acre it is a good attornment for the whole for he cannot apportion his assent and 2 E. 4. 13. If the Executor deliver unto the Devisee goods to him devised to redeliver them to him again at such a day the same is a good assent and execution of the Devise and the words of the re-delivery are void Gawdy The devise doth not vest the estate in the Wife until agreement where a man takes in a second degree as in a Remainder the same vests presently before agreement but where he taketh immediatly it is otherwise and he held the agreement was well enough pleaded Wray Presently upon the death of the Testator the Free-hold rested in the Devisee and it was not an Agreement ut supra by taking of the Rents yet the entry into the Marigold was a consent and an Execution of the whole Legacy and as to the rest he agreed with Gawdy Clench The Free-hold rested presently in Alice Leigh before agreement also the entry into the Marigold is an execution of the whole Legacy to the Devisee for her entry shall be adjudged most beneficial for her and that is for all the three houses CLXXVII Stransham and Medcalfes Case Trin. 30 Eliz. In the Kings Bench. 1 Cro. 178. STransham libelled in the Court of the Bishop of Norwich against Medcalfe for a portion of Tithes as Farmor of the Rectory of Dunham the Parson of Stonham came in and said that the Land whereof the Tithes are demanded is in his Parish of Stonham and not in the Parish of Dunham and afterwards sentence passed against Stransham who brought an Appeal and notwithstanding that by the Statute of 32 H. 8. cap. 7. the spiritual Iudges may proceed to make process against the Appellant for costs for the principal matter scil parcel or within such a Parish or not is tryable at the Common Law. Cook now prayed a Consultation and he confessed ut supra that the matter was tryable at the Common Law but yet the costs were not given for the matter but for the unjust vexation No Prohibition for costs in the spiritual Court. and it was his suit and own act to prosecute the same in the Spiritual Court. Note that Stransham had a Prohibition to stay the proceedings for the costs for
Curiam the same is no offence in the Court but it was an ill act of the Master of the Rolls For we oftentimes have persons here upon Habeas Corpus who are also arrested by Process out of the Exchequer or of the Common Pleas but we will not discharge them before they have found Sureties for their appearance c. and so the said Courts use to do reciprocally and we cannot punish the Sheriff for the Hebas Corpus was first returnable before the Latitat but the party may have an action against the Sheriff but we will speak with the Master of the Rolls c. and afterwards Baill was put in But afterwards another Exception was taken to the Return scil a custodia nostra exoneratus fuit which might be intended as to the Cause in the Chancery only and not for the Cause here for he hath not alledged that he hath not alledged That he was committed to any other in custody and for that cause day was given to the Sheriff to amend his Return CCII. Upton and Wells Case Trin. 31. Eliz. In the Kings Bench. IN an Ejectione firmae by Upton against Wells Iudgment was given for the Plaintiff and upon the habere facias possessionem The Sheriff retuned that in the Execution of the said Writ he took the Plaintiff with him and came to the house recovered and removed thereout a woman and two children which were all the persons which upon diligent search he could find in the said house and delivered to the Plaintiff peaceable possession to his thinking and afterwards departed and immediately after three other persons which were secretly lodged in the said house expulsed the Plaintiff again 2 Len. 12 13. Latch 165. upon notice of which he returned again to the said house to put the Plaintiff in full possession but the other did resist him so as without peril of his life and of them that were with him in company he could not do it And upon this Return the Court awarded a new Writ of execution for that the same was no Execution of the first Writ and also awarded an Attachment against the parties CCIII Marsh and Astreys Case Trin. 31 Eliz. In the Kings Bench. 1 Cro. 175. MArsh brought an Action upon the Case against Astrey and declared That he had procured a Writ of Entry sur disseisin against one A. and thereupon had a summons for Lands in London and delivered the said Summons to Astrey being Vnder-Sheriff of the same County virtute cujus the said Astrey summoned the said A. upon the Land but notwithstanding that did not return the said Summons Astrey pleaded Not guilty And it was tryed in London where the action was brought for the Plaintiff and it was moved by Cook in arrest of Iudgment That here is a mis-trial for this issue ought to be tryed in the County where the Land is because that the cause is local but the Exception was not allowed for the action is well layed in London and so the trial there also is good Trial. Another Exception was moved because the action ought to be against the Sheriff himself and not against the Vnder-Sheriff for the Sheriff is the Officer to the Court and all Returns are in his Name and I grant that an action for any falsity or deceit lyeth against the Vnder-Sheriff as for embesseling rasing of Writs c. but upon Non feasans as the Case is here the not Retorn of the Summons it ought to be brought against the Sheriff himself See 41 E. 3. 12. And if the Vnder-Sheriff take one in Execution and suffereth him to escape debt lyeth against the Sheriff himself Another Exception was taken because the Declaration is that the said Astrey Intendens machinans ipsum querent in actione sua praedict prosequend impedire c. did not retorn the said Summons but doth not say tunc exist Vnder-Sheriff Snag contrary If a Baily Errant of the Sheriff take one in Execution and he suffer him to escape an action lieth against the Baily himself And that was agreed in the Case of a Baily of Middlesex and Sir Richard Dyer Sheriff of Huntington and his Vnder-Sheriff who suffered a Prisoner to escape the action was brought against the Vnder-Sheriff for it may be the Sheriff himself had not notice of the matter because the Writ was delivered to the Vnder-Sheriff and he took a Fee for it and therefore it is reason that he shall be punished As if a Clerk in an Office mis-enter any thing he himself shall be punished and not the Master of the Office because he takes a fee for it But if the Retorn made by the Baily be insufficient Then the Sheriff himself shall be amerced but in the principal case it is clear That the action lieth against the Vnder-Sheriff if the party will and such was the opinion of Gawdy and Clench As to the other matter because it is not alledged in the Declaration That the Defendant was Vnder-Sheriff at the time the Declaration is good enough notwithstanding that for so are all the Presidents and if the Defendant were not Vnder-Sheriff the same shall come in of the other side See 21 E. 4. 23. And afterwards in the principal Case Iudgment was given for the Plaintiff CCIV. Hedd and Chaloners Case Trin. 31 Eliz. In the Common Pleas. 1 Cro. 176. 2 Roll. 42. 176. IN an Ejectione firmae by Hedd against Chaloner upon a Demise for years of Jane Berd It was found by especial Verdict That William Berd was seised in fee made a Feoffment to the use of himself for life afterward to the use of his two Daughters Joan Alice in fee and died and Joan entred into the Land and by Indenture by the name of Jane Berd leased the same to the Plaintiff for three years And it was further found That Joan intended in the Feoffment and Jane who leased are one and the same person Wray It hath been agreed here upon good advice and Conference with Grammarians that Joan and Jane are but one Name And Women because Joan seems to them a homely name would not be called Joan but Jane But admit that they were several Names Then he and Gawdy were of opinion it should not be good But afterwards it was said by Gawdy That this action is not grounded meerly upon the Indenture but upon the Demise and that is the substance and the Indenture is but to enforce it sci the lease 44 E. 3. 42. Another matter was moved here the remainder was limited to Joan and Alice in fee by which they are Ioint Tenants and then when one of them enters the same vests the possession in them both Then by the demise of Joan a moyety passeth only to the Plaintiff Wray Here the Term is incurred and the Plaintiff is to recover damages only and no title at all is found for the Defendant and so there is no cause but that Iudgment should be given for
be a strange construction that the King should be within one part of the Statute and out of the other And 34 H. 6. 3. The Kings Attorney could not have damages which is a great proof and authority that the Iudgment for damages in such case is Error The experience and usage of Law is sufficient to interpret the same to us and from the time of E. 3. until now no damages have been given in such case Thrice this matter hath been in question 1. 3 H. 9. and the Iustices there would not give damages 34 H. 6. there the Councel learned of the King could not have damages for the King. And 7 Eliz. there was no damages And whereas it hath been said that a man shall not have a Writ of Error where Iudgment is given for his benefit that if Iudgment be entred that the Defendant be in Misericordia where it ought to be Capiatur yet the Defendant shall have a Writ of Error And he conceived also that here is but one Iudgment Clench The first President after the making of that Statute was that damages were given for the King in such case but afterwards the practice was always otherwise that the said Statute could not be construed to give in such case damages the reason was because the Iustices took the Law to be otherwise And the King is not within the Statute of 32 H. 8. of buying of Tythes nor any Subjects who buy any title of him And here in our case the Queen is not verus Patronus but hath this presentment by Prerogative And if title do accrue to the Bishop to present for Lapse yet the Patron is verus Patronus At another day the case was moved and it was said by VVray that he had conferred with Anderson Manwood and Periam who held that the Queen could not have damages in this case but Periam somewhat doubted of it Gawdy In 22 E. 4. 46. In Dower the Demandant recovered her Dower and damages by verdict and afterwards for the damages the Iudgment was reversed and stood for the Lands Clench It shall be reversed for all for there is but one Iudgment And afterwards Iudgment was given and that the Queen should have a Writ to the Bishop and damages Popham The Court ought not to proceed to the examination of the Errors without a Petition to the Queen and that was the case of one Mordant where an Infant levyed a Fine to the Queen and thereupon brought a Writ of Error and afterwards by the Resolution of all the Iudges the proceedings thereupon were stayed See 10 H. 4. 148. a good case CCVIII Chapman and Hursts Case Trin. 31 Eliz. In the Kings Bench. BEtwixt Chapman and Hurst Tythes the Defendant did libel in the spiritual Court for Tythes against the Plaintiff who came and surmised that whereas he held certain Lands by the Lease of Sir Ralph Sadler for term of years within such a Parish that the now Defendant being Farmor of the Rectory there The Defendant in consideration that the Plaintiff promised and agreed to pay to the Defendant ten pounds per annum during the Term for his Tythes he promised that the Plaintiff should hold his said Land without Tythes and without any sute for the same and thereupon prayed a Prohibition And by Gawdy the same is a good discharge of the Tythes for the time and a good Composition to have a Prohibition upon and it is not like unto a Covenant See 8 E. 4. 14. by Danby CCIX. Kirdler and Leversages Case Trin. 31 Eliz. In the Common Pleas. IN Avowry the case was Avowry 1 Cro. 241. that A. seised of Lands leased the same at Will rendring rent ten pounds per annum and afterwards granted eundem redditum by another deed to a stranger for life and afterwards the lease at will is determined Periam was of opinion that the Rent did continue and although that the words be eundem redditum yet it is not to be intended eundem numero sed eundem specie so as he shall have such a Rent scil ten pounds per annum As where the King grants to such a Town easdem libertates quas Civitas Chester habet it shall be intended such Liberties and not the same Liberties so in the principal case Also he held that a Rent at will cannot be granted for life and therefore it shall not be meant the same Rent But it was afterwards adjudged that the Rent was well granted for the life of the Grantee CCX Heayes and Alleyns Case Trin. 31 Eliz. In the Common Pleas. Cui in vita 1 Cro. 234. Poph. 13. HEayes brought a sur cui in vita against Alleyn And the case was this The Discontinuee of a Messuage had other Lands of good and indefesible title adjoining to it and demolisht and abated the said house and built another which was larger so as part of it extended upon his own Land to which he had good title And afterwards the heir brought a sur cui in vita and demanded the house by the Name of a Messuage whereas part of the house did extend into the Land to which he had no right And by Periam The Writ ought to be of a Messuage with an Exception of so much of the house which was erected upon the soil of the Tenant Demand and the manner of it in a writ as demand of a Messuage except a Chamber And it was argued by Yelverton That the Writ ought to abate for if the Demandant shall have Iudgment according to his Writ then it shall be entred quod petens recuperet Messuagium which should be Erronious for it appeareth by the verdict it self that the demandant hath not title to part of it and therefore he ought to have demanded it specially 5 H. 7. 9. parcel of Land containing 10 Feet 16 E. 3. Br. Mortdanc of a piece of Land containing so much in breadth and so much in length And the moyetie of two parts of a Messuage and 33 E. 3. br Entrie 8. a Disseisor of a Marsh ground made Meadow of it Now in a Writ of Entry it shall be demanded for Meadow Drue Serjeant contrary and he confessed the Cases put before and that every thing shall be demanded by Writ in such sort as it is at the time of the action brought as a Writ of Dower is brought of two Mills whereas during the Coverture they were but 2 Tofts but at the day of the Writ brought Mills and therefore shall be demanded by the name of Mills 14 H. 4. 33. Dower 21. 13 H. 4. 33. 175. 1 H. 5. 11. Walmesly part of a Msseuage may be demanded by the Name of a Messuage and if a House descend to two Coparceners if they make partition that one of them shall have the upper Chamber and the other the lower here if they be disseised they shall have several Assisses and each of them shall make his plaint of a Messuage and by him a Chamber may be
second Lessee and declared upon a Lease made for years without speaking of the Indenture And Gawdy Serjeant demanded the opinion of the Court if the Defendant might safely plead no Wast And they conceived that it should be dangerous so to do Then it was demanded if the Defendant plead that the Plaintiff had nothing tempore dimissionis whereof he had counted if the Plaintiff might estop the Defendant by the Indenture although he had not counted upon it and if such Replication be not a departure And it seemed to Periam and Leonard Custos brevium that it was not for it is not contrary to the Declaration but rather doth enforce the Declaration CCXXI Mich. 31 Eliz. In the Common Pleas. WAlmesley Serjeant demanded the opinion of the Court upon this matter Land is given to Husband and Wife in special tail during the Coverture they have issue the Husband is attainted of Treason and dieth the Wife continues in as Tenant in tail the issue is restored by Parliament and made inheritable to his Father saving unto the King all advantages which were devolded unto him by the Attainder of his Father the Wife dieth And he conceived that the issue was inheritable for the Attainder which disturbed the inheritance is removed and the blood is restored and nothing can accrue to the King for the Father had not any estate forfeitable but all the estate did survive to the Wife not impeachable by the said Attainder And when the Wife dieth then is the Issue capable to enherit the estate tail Windham and Rhodes prima facie thought the contrary yet they agreed that if the Wife had suffered a common Recovery the sâ—me had bound the King. CCXXII Mich. 31 Eliz. In the Common Pleas. IN an Action upon the Case the Plaintiff declared Assumpsit that he had delivered to the Defendant diversa bona ad valentiam 10 li. the Defendant in consideration thereof did promise to pay to the Plaintiff the Debt owing pro bonis praedictis and did not shew that the Defendant bought the said goods of the Plaintiff and so it doth not appear that there was any Debt and then a promise to pay it is meerly void which was agreed by the whole Court. CCXXIII. Seaman and Brownings Case Mich. 31 Eliz. In the Common Pleas. GEorge Seaman brought Debt upon a Bond against W. Browning and others Executors of one Marshal the condition was Debt that where the said Marshal had sold certain Lands to the Plaintiff if the said Plaintiff peaceably and quietly enjoy the said Lands against the said Marshal c. and assigned the breach in this that the said Marshal had entred upon him and cut down five Elms there upon which the parties were at issue And it was found that A. servant of the said Marshal by commandment of his said Master had entred and cut c. in the presence of his said Master and by his commandment for he is a principal Trespassor And it was so holden by the Court. CCXXIV. Mich. 31 Eliz. In the Common Pleas. IF the Kings Tenant by Knights service dieth his Heir within age 8 Co. 172. and upon Office found the King seiseth the Body and Land yet the Heir during the possession of the King may sell the Lands by Deed enrolled or make a Lease of such Land and the same shall bind the Heir notwithstanding the possession of the King but if he maketh a Feoffment in Fee it is utterly void for the same is an intrusion upon the possession of the King but where the King by Office found is entituled to the Inheritance as that his Tenant dieth without Heir whereas it is false for which the King seiseth in such case the Tenant of the King before his Ouster le mayne cannot make a Lease for years or sell the Land by Deed enrolled The Case depended in London before the Iudges of the Sheriffs Court. The King by colour of a false Office which doth falsly entitle him to the Inheritance is seised of certain Land he who hath right leased the same for years by Deed indented and then an Ouster le mayne was sued and he enfeoffed a stranger And it was holden that the Lease should not bind the Feoffee although it was by Deed indented for the Feoffee is a stranger to the Indenture and therefore shall not be estopped by it 18 H. 6. 22. A stranger shall not take advantage of an Estoppel and therefore shall not be bound by it As if one take a Lease for years by Indenture of his own Lands the same shall bind him but if he dieth without Heir it shall not bind the Lord in point of Escheat CCXXV. Gibbs Case Mich. 31 Eliz. In the Common Pleas. Trover and Conversion 1 Cro. 861. Owen 27. GIbbs brought an Action upon the Case upon Trover and Conversion of a Gelding and the Case was that one P. had stolen the said Horse and sold the same unto the Defendant in open Market by the name of Lister and the said false name was entred in the Toll-book And it was holden clear by the Court that by that sale the property was not altered CCXXVI Mich. 31 Eliz. In the Common Pleas. Owen 45. Hutton 105. 1 Cro. 734. Post 322. TEnant in Socage leased his Lands for four years and died his Heir within the age of eight years the Mother being Guardian in Socage leased the Land by Indenture to the same Lessee for fourteen years It was holden by the Court that in this Case the first lease is surrendred but otherwise upon a Lease made by Guardian by Nurture CCXXVII Kimpton and Dawbenets Case Mich. 31 Eliz. In the Common Pleas. IN Trespass the Defendant did justifie by a grant of the Land where c. by Copy The Plaintiff by Replication saith that the Land is customary Land ut supra and claimed the same by a former Copy The Defendant by Rejoynder saith that well and true it is that the Lord may grant Copies in possession at his pleasure and also estates by Copy in Reversion with the assent of the Copy-holder in possession but all estates granted by Copy in Reversion without such assent have been void It was argued that this custom is not good for it is not reason that the Lord in disposing of the customary possessions of his Manor should depend upon the will of his Tenant at will and the same is not like to the case of Attornment for there the Attendancy is to be respited which is not to be done here for the Copy-holder in possession shall continue attendant to his Lord notwithstanding such a grant in Reversion And see for the unreasonableness of the custom 19 Eliz. 357. in Dyer Sallfords Case It was moved on the other side that the Custom was good enough and 3 H. 6. 45. was vouched That every Freehold of a Manour upon alienation might surrender his Land c. It was adjourned CCXXVIII Marriot and Pascalls Case in a Writ of
and it shall be intended the Rent mentioned before See 21 H. 7. 30. b. Where Villa West shall be intended Villa praedict 19 E. 4. 1. In a Quare Impedit the Plaintiff doth entitle himself by grant of the next Avoydance cum acciderit and doth not shew in his Count that the same was the next Avoydance and yet the Count was holden to be good for so it shall be intended so here And he said It is not necessary that a Declaration be exactly certain in every point but if one part of it expound the other it is well enough And although the Identity of the Rent doth not appear by the word praedict yet it appeareth by other circumstances as by the days of payment c. and no other Rent can be intended And now this Exception is after Verdict and therefore favourably to be taken And afterwards Iudgment was given for the Plaintiff CCXLI. Musted and Hoppers Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared Assumsit p 1 Cro. 149. That where he and one Atkinsal were joyntly and severally bounden by Obligation in fifty pounds to a stranger for the only Debt of the said Atkinsal which Atkinsal died and the Defendant married afterwards his Wife and so the Goods of Atkinsal came to his hands yet the Plaintiff the first day of May after which was the day of payment of the money paid five and twenty pounds for avoiding the Forfeiture of the penalty The Defendant as well in consideration of the Premisses as in consideration that he might peaceably enjoy the Goods of the Testator promised to pay the said sum cum inde requisitus fuer And upon Non Assumpsit the Iury found the payment of the said sum and all the precedent matter And that the Defendant in consideration praemissiorum promised to pay the said sum if he might peaceably enjoy the Goods of the said Testator It was moved in arrest of Iudgment that although here the Iury have found sufficient cause of Action yet if the Declaration be not accordingly the Plaintiff shall not have Iudgment Verdict And here the Plaintiff hath declared upon two Considerations and the Iury hath found but one scil if he peaceably enjoy the Goods of the Testator Also the Plaintiff declared of a simple promise and the Iury have found a Conditional Si gaudere potest c. And so the promise set forth in the Declaration is not found in the Verdict Gawdy was of opinion That the first consideration is good Consideration for the Plaintiff entred into Bond at the request of the Defendant and then the promise following is good But the second consideration is void scil That the Defendant shall enjoy the goods of the Testator c. as if it had been that he should enjoy his own goods And all the Iustices were clear of opinion That the Promise found by the Iury is not the promise alledged in the Declaration and so the issue is not found for the Plaintiff and so the judgment was stayed CCXLII. Creckmere and Pattersons Case Trin. 30 Eliz. In the Kings Bench. Rot. 568. Devise conditional 1 Cro. 146. 1 Roll. 410. 1 Inst 236. b. UPon a special Verdict the Case was this Robert Dookin was seised of certain Lands in Fee and having issue two Daughters devised the same to Alice his Eldest Daughter that she should pay forty pound to Ann her Sister at such a Day the money is not paid whereupon Ann entreth into the moiety of the Land And it was holden by the whole Court that the same is a good Condition and that the Entry of Ann was lawful It hath been adjudged That where a man devised his Land to his wife Proviso My will is That she shall keep my house in good Reparations that the same is a good Condition Wray A man deviseth his Lands to B. paying 40 l. to C. it is a good condition for C. hath no other remedy and a Will ought to be expounded according to the intent of the Devisor CCXLIII Dove and Williots and others Case .. Hill. 31 Eliz. In the Kings Bench. 1 Cro. 160. IN an Ejectione firmae upon a special Verdict the case was That W. was seised of the Land where c. and held the same by Copy c. and surrendred the same unto the use of E. for life the Remainder to Robert and A. in Fee Robert made a Lease to the Defendant E. Robert A. surrendred the said Land scil a third part to the use of Robert for the life of E. the Remainder to the Right heirs of Robert and of another third part to the use of Robert for life the Remainder to E. the Remainder to Richard c. and of another third part to the use of A. and his Heirs After which Partition was made betwixt them and the Land where c. was allotted to Richard who afterwards surrendred to the use of the Plaintiff It was holden That Iudgment upon this verdict ought not to be given for the Plaintiff For the Lessee of Robert had the first possession and that Lease is to begin after the death of E. who was Tenant for life and when E. and he in the Reversion joyn in a surrender thereby the estate for life in that third part is extinct in Robert who hath the Inheritance and then his Lease took effect for a third Part. So that the Parties here are Tenants in Common 1 Inst 200. betwixt whom Trespass doth not lye CCXLIV Bulleyn and Graunts Case Hill. 31 Eliz. In the Kings Bench. Copyhold UPon Evidence to a Iury the Case was That Henry Bulleyn the Father was seised of the Land being Copyhold and had Issue three Sons Gregory Henry andy Thomas and afterwards surrendred to the use of the last Will Devise 1 Cro. 148. and thereby devised the said Land to Joan his Wife for life the remainder to the said Henry and the Heirs of his body begotten Joan died after admittance Henry died without Issue and afterwards the Lord granted it to Thomas and his Heirs who surrendred to the use of the Defendant then his Wife for life and afterwards died without Issue Gregory eldest Son of Henry Bulleyn entred c. Coke When the Father surrendreth to the use of his last Will thereby all passeth out of him so as nothing accrueth to the Heir nor can he have and demand any thing before admittance Wray The entry of Gregory is lawful and admittance for him is not necessary for if a Copyholder surrendereth to the use of one for life who is admitted and dieth he in the Reversion may enter without a new Admittance It was moved by Coke if this Estate limited to Henry be an Estate tail or a Fee conditional For if it be a Fee-simple conditional then there cannot be another Estate over but yet in case of a Devise an Estate may depend upon a Fee-simple precedent but not
as a Will but as an Executory Devise Wray It is not a conditional Estate in Fee but an Estate tail Coke They who would prove the Custom to entail Copyhold Land within a Manor it is not sufficient to shew Copies of Grants to persons and the Heirs of their bodies Copyhold Estate but they ought to shew that surrenders made by such persons have been enjoyed by reason of such matter VVray That is not so for Customary Lands may be granted in tail and yet no surrenders have been made within time of memory CCXLV Matthew and Hassals Case Mich. 31 Eliz. In the Kings Bench. IN an Ejectione firmae betwixt Matthew and Hassal the Plaintiff had Iudgment to recover and the Defendant brought a Writ of Error Error 1 Cro. 144. and assigned Error in this that the Iudgment was entred Quod querens recuperet possessionem c. where it should be Terminum vent in ten praedict See 9 Eliz. Dyer 258. Coke contrary That the Iudgment is good enough for the Writ of Execution upon it is Habere facias possessionem and in a real Action the Writ is Quod perens recuperet sesinam and not terram And afterwards Iudgment was affirmed CCXLVI Tempest and Mallets Case Hill. 31 Eliz. In the Kings Bench. IN an Action of Trespass by Tempest against Mallet Iudgment was given and Eror brought and assigned for Error 1 Cro. 153 145. that whereas the Action was brought against four one of them died Mesne betwixt the Award of the Nisi prius and the Inquest taken And it was said on the part of the Defendant in the Writ of Error which was entred upon the Record that the Plaintiff shewed unto the Court the death of one of the Defendants and prayed Iudgment against the others See 4 H. 7. 2 Eliz. 175. And there is a difference where in an Action of Trespass there is but one Defendant and where many Another Error was assigned the Defendant Obtulit se per Higgins Attornat suum without shewing his Christian Name as John or VVilliam for Higgins only without the Christian Name is not any Name for it is but an addition to shew which John or VVilliam Coke The same is helped by the Statute of 32 H. 8. cap. 30. Where it is enacted that after Verdict Iudgment shall be given notwithstanding the lack of Warrant of Attorney of the party against whom the Issue shall be tried or any default or negligence of any the parties their Counsellors or Attorneys and of necessity this default here in the Christian Name ought to be the fault of one of them See also 18 Eliz. Cap. 14. for want of any Warrant of Attorney c. Glanvil The Statute provides for default of Warrant of Attorney c. Then Coke To what end was the Statute of 18 Eliz. made for the Statute of 32 H. 8. provides for defects of Warrants of Attorney Glanvil The first Statutes for Warrants of Attorneys of such persons against whom the Issue was tryed but the later Stat. is general Another Error was assigned Quod defendens Capiatur where the Offence so the Fine is pardoned by Parliament and therefore the entry of the Iudgment ought to be Et de fine nihil quia perdonatur Coke The Iudgment is well enough for in every general Pardon some persons are excepted it doth not appear if the Defendant here were one of them and then the Fine is not pardoned 1 Cro. 768. 778. 3 Cro. 22. for the Court cannot take notice of that as it was holden in Serjeant Harris Case but if the Defendant be charged with the Fine then he ought to plead the pardon and to shew that he was not any of the persons excepted And afterwards at another day the Defendant did alledge that there was a Warrant of Attorney in the Common Pleas. And also it appeareth upon Record that the Defendant did appear upon the Supersedeas by Attorney who had his full Name and therefore prayed a Certiorari de novo to certifie the same matter vide 9 E. 4. 32. VVray A Case here greatly debated betwixt the Lord Norris and Braybrook In nullo est erratum and upon Advice such a Writ of Certiorari was granted after the Plaintiff had pleaded In nullo est erratum for this Plea in nullo est erratum goes but to that which is contained within the body of the Record and not unto collateral matter scil Warrant of Attorneys And afterwards the Writ of Error was allowed and upon the day of return thereof it appeared upon the Record of Supersedeas that the Defendant did appear by such a one his Attorney But it was said by the Court that there ought to be two appearances the one upon the Supersedeas and the other when the Plaintiff declares See as to the name of the Attorney Tirrells Case 1 Mar. Dyer 93. CCXLVII. Palmer and Knowllis Case Hill. 31. Eliz. In the Kings Bench. 1 Cro. 160. PAlmer recovered Debt against Knowllis and sued Execution by Elegit upon which the Sheriff returned that he had made Execution of the lands of the Defendant by the Oath of twelve men but he could not deliver it to the party Execution for it is extended to another upon a Statute upon which the Plaintiff sued a Capias ad satisfaciendum And now came the Defendant by his Counsel and moved that after Elegit returned the Plaintiff could not resort to the Execution by Capias and therefore prayed a Supersedeas Caplas after Elegit because the Capias erronice emanavit But the whole Court was clear to the contrary for upon Nihil returned upon Elegit the Plaintiff shall have a Capias 17 E. 4. 5. See 21 H. 7. 19. A man shall have a Capias after a Fieri facias or Elegit 34 H. 6. 20. and here the special return doth amount to as much as if the Sheriff had returned Nihil Also the Statute of West 2. which giveth the Elegit is not in the Negative and therefore it shall not take away the Execution which was at the Common Law. And here is no Execution returned for after the former extent ended he ought to have a new Elegit which Wray granted And afterwards the said Knowllis was taken by force of the Capias ad satisfaciend and came into Court in the Custody of the Sheriff and the Case was opened and in the whole appeared to be worthy of favour but by the Law he could not be helped and although he instantly prayed a Supersedeas yet the same was denied unto him CCXLVIII The Church-wardens of Fetherstones Case Hill. 31 Eliz. In the Common Pleas. AN Action of Trespass was brought by the Church-wardens of Fetherstone in the County of Norfolk and declared Church-wardens 1 Cro. 145. 179. That the Defendant took out of the said Church a Bell and declared that the Trespass was done 20 Eliz. And it was found for the Plaintiffs And now it was moved by
Godfrey in arrest of Iudgment That it is apparent upon the Declaration That the Trespass was done in the time of their Predecessors of which the Successor cannot have action and actio personalis moritur cum persona See 19 H. 6. 66. But the old Church-wardens shall have the action Cook contrary and that the present Church-wardens shall have the action and that in respect of their office which the Court granted And by Gawdy Church-wardens are a Corporation by the Common Law. See 12 H. 7. 28. by Frowick That the New Church-wardens shall not have an action upon such a Trespass done to their Predecessors contrary by Yaxley See by Newton and Paston That the Executors of the Guardian in whose time the Trespass was done shall have Trespass CCXLIX Hauxwood and Husbands Case Pasch 31 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared for disturbing of him to use his common c. and shewed that A. was seised of certain Lands to which this Common was appendant Prescription 1 Cro. 153. for the term of his Life the Remainder to B. in tail and that the said A. and B. did demise unto him the said Lands for years c. Pepper The Declaration is not good for it is not shewed how these particular estates did commence See 20 E. 4. 10. By Piggot Lessee for life and he in the Remainder cannot prescribe together and he in the Remainder cannot have common Also he declares That Tenant for life and he in Remainder demised to him whereas in truth it is the demise of Tenant for life and the Confirmation of him in the Remainder also he doth not aver the life of Tenant for life Popham He needs not to shew the commencement of the particular estates for we are a stranger to them the Prescription in them both is well enough for all is but one estate and the Lease of both See 27 H. 8. 13. The Lessee for life and he in the Reversion made a Lease for life and joyned in an action of wast and there needs no averment of the life of the Tenant for life for he in the Reversion hath joyned which Gawdy granted as to all And said the particular estates are but as conveyance unto the action Wray conceived the first Exception to be material c. CCL Sweeper and Randals Case Rot. 770. Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass for breaking of his Close and carrying away his goods by Sweeper against Randal upon Not guilty pleaded i Cro. 156. The Iury found That one John Gilbert was seised of the Land where c. and leased the same to the Plaintiff at Will who sowed the Land and afterwards the Plaintiff agreed with the said Gilbert to surrender to him the said Land and his interest in the same and the said Gilbert entred and leased to the Defendant who took the Corn. It was moved if these words I agree to surrender my Lands be a present and express surrender Gawdy It is not any surrender for Tenant at will cannot surrender but it is but a relinquishing of the estate if it be any thing Surrender but in truth it is not any thing in present but an act to be done in future Wray I agree A. demiseth the Manor of D. at will it is no Lease no more shall it be here any Surrender or any relinquishing of the estate Clench conceived That the intent of the Party was to leave his estate at the time of the speaking otherwise those words were void for he might leave it at any time without those words Gawdy If such was his intent the Iury ought to find it expressly and afterwards Iudgment was given for the Plaintiff CCLI Ward and Blunts Case Trin. 31. Eliz. In the Kings Bench. Trover and Conversion 1 Cro. 146. IN an Action upon the Case of Trover of certain Loads of Corn at Henden in Middlesex and the conversion of them The Defendant pleaded That before the conversion he was seised of certain Lands called Harminglow in the County of Stafford and that the Corn whereof c. was there growing and that he did sever it by force of which he was possessed and the same casually lost and that the same came to the hands of the Plaintiff and the Plaintiff casually lost the same and the same came to the hands of the Defendant at Henden aforesaid and he did convert the same to his own use as it was lawful for him to do upon which the Plaintiff did demur in Law. Atkinson The Plea is good for the conversion is the point of the action and the effect of it For if a man take the same and do not convert he is not guilty And here the Defendant doth justifie the conversion wherefore he cannot plead Not guilty The general issue is to be taken where a man hath not any colour but here the Defendant hath colour because the Corn whereof c. was growing upon his Land which might enveigle the Lay people and therefore it is safest to plead the special matter But admit that it doth amount but to the general issue yet there is not any cause of Demurrer but the Plaintiff ought to shew the same to the Court and pray that the general issue be entred and the Court ex officio ought to do it Egerton the Queens Solicitor contrary The Plea in Bar is not good The Plaintiff declares of a Trover of his goods ut de bonis suis propriis and the Defendant pleads That he took his own goods which is not any answer to the Plaintiff See 22 E. 3. 18. In Trespass of taking and carrying away his Trees The Defendant pleads That they were our Trees growing in our own soil and we cut them and carryed them away and the plea was challenged wherefore the Defendant pleaded over without that that he took the Trees of the Plaintiff So 26 Ass 22. and 30 E. 3. 22. Another matter was The Plea in Bar is That before the time of the Conversion the Defendant was seised of the Land and sowed it and that after the Corn was severed but he doth not say that he was seised at the time of the severance and then it might be that he had severed the Corn of the Plaintiff c. and that was holden by the Court to be a material exception wherefore Iudgment was given for the Plaintiff But as to the first Exception the same was disallowed For the Court ex Officio in such case ought to cause the general issue to be entred but the Plaintiff ought not to demur upon it CCLIV Cheiny and Langleys Case Hill. 31. Eliz. Rott 638. Trin. 31 Eliz. In the Kings Bench. THe case was That Tenant for life of certain Lands leased the same for years by Indenture with these words I give grant 1 Cro. 157. Leases bargain and sell my interest in such Lands for twenty years To have and to hold
in such manner and form as I my self did hold the same and no otherwise Tenant for life died within the Term and he in the Reversion entred and the Lessee brought an action of Covenant Godfrey The action doth not ly for here is not any warranty for the Plaintiff is not Lessee but Assignee to whom this Warranty in Law cannot extend but admit that the Warranty doth extend to the Plaintiff yet it is now determined with the estate of the Tenant for life and so the Covenant ended with the estate See 32 H. 6. 32. by Littleton 9. Eliz. Dyer 257. Covenant And if Tenant in tail make a Lease for years ut supra and afterwards dieth without issue the Covenant is gone and after Iudgment was given against the Plaintiff CCLV. Fish Brown and Sadlers Case Intrat Mich. 29 Eliz. Rot. 606. Trin. 31. Eliz. In the Kings Bench. AN action upon the Case was brought by Fish and Brown against Sadler Hill. 29 Eliz. rot 606. and they declared Action upon the Case That they were proprietaries of certain goods which were in the possession of one A. against which A. Sadler one of the Defendants had commenced a feigned and covenous suit in the Ecclesiastical Court in the Name of one Collison to the intent to get the said goods into his possession of which the Plaintiffs having notice and to the intent that the said Plaintiffs should suffer the Defendant to recover and obtain the said goods by the said suit the Defendant did promise to the Plaintiffs to render to them a true accompt of the said goods and shewed further That by the said suit the Defend did obtain the said goods by sufferance of the Plaintiff Tanfeild It is a good consideration the Plaintiffs were not parties or Privies at the beginning of the suit it is not like Onlies Case in 19 Eliz. Dyer 355. Where in an action upon the Case Onlie declared Assumpsit and consideration That the Defendant Countess c. being a Widow had divers suits and businesses and that the Plaintiff at her request had bestowed great labour and travail and had expended circa the affairs of the said Countess 1500 l. Whereupon she promised to the Plaintiff to pay all the said expences and such a sum above for that matter which is the ground of the action is maintenance and malum prohibitum but such matter is not here for it is lawful for a man to use means to get his goods Gawdy All covins are abhorred in Law and here the Plaintiffs are privies to the wrong and therefore it cannot be any consideration Wray Although that the suit at the beginning was wrongful and covenous yet when the Plaintiffs who were owners of the said goods do assent to such proceedings now the suit is become just and lawful ab initio Corin. and so no wrong in the consideration but all the wrong is purged by the agreement If any covin be the same is between Sadler and him who is sued to whom the Plaintiffs are not privies Clench If this privity betwixt the Plaintiffs and Sadler had been before the said suit then the consideration is without any fraud Cooper Serjeant conceived here is not any good consideration upon which the Promise of the Defendant may be grounded for the Defendant hath not any benefit by it and he cited the case between Smith and Smith 25 Eliz. Egerton Here the consideration is good enough for the Plaintiffs forbear their own suit which was a hinderance unto them Clench was of opinion that the Plaintiff should not have Iudgment for that suit was begun by Sadler in the Name of Collison without his privity and therefor it was unlawful and the same was for the goods of another man which is unlawful also and then when the unlawful act is begun the illegal agreement afterwards that they shall proceed is unlawful also and therefore there cannot be any consideration and as to the covin it is not material for without that the matter is illegal enough Also the Declaration is not good in this because it is not shewed in what Court the suit did depend so as it might appear unto us that they had power to hold plea of it Gawdy agreed with Clench in the first point and also in the last and by him in the assumpsit the Plaintiff declares that a suit was depending betwixt the Defendant and another and where the Plaintiffs if they were produced might have given strong witness against the Defendant the said Defendant in consideration that the Plaintiffs would not give Testimony against him promised to give to the Plaintiff 20 l. the same consideration will not maintain this action because it is unlawful for any man to suppress testimony in any cause 1 Cro. 337. Wray Here is a consideration good enough For where Sadler should lose costs upon the first suit now upon this promise upon his account he shall be allowed the same the which is a benefit unto him and as to the shewing in what Court the suit doth depend that needs not by way of Declaration but the same shall be shewed by way of Evidence and it is not traversable and it is but inducement to the action And as to the covin that is not here for covin is always to the prejudice of a third person but so it is not here But in truth this suit was unlawful for Sadler so to sue in the Name of another and therefore it cannot be a good consideration And for that cause it was awarded Quod querens nihil capiat per billam CCLIV How and Conneys Case Trin. 31 Eliz. In the Kings Bench. Trespass 1 Cro. 159. IN an action of Trespass by How against Conney the case was That one Smith was seised of two houses and leased one of them to his Brother for life and afterwards by his Will devised viz. I give to my Executors All my Lands and Tenements free and copy to hold to them and they to take the profits of them for ten years and afterwards to sell the said Lands and Tenements and afterwards died his Brother died before the quarter of a year after and it was found That the Executors entred into the house undemised and took the profits but not into the other and that at the end of the said ten years they sold the whole Godfrey The house only which was in possession shall pass by the Will. To hold unto them doth imply matter of possession so as nothing passeth but that whereof they may take the profits the which cannot be of a bare Reversion also by this devise the Executors have not interest in the thing devised but for ten years Plow 66. Shop 437. whereas the Brother of the Testator had an estate for life which by possibility might continue above twenty years and to prove that the meaning of the devisor to be collected upon the words of the Will ought to direct the construction of the
case And at another day it was objected That the Deed could not be acknowledged without a Letter of Attorney being a Corporation which consisted upon divers persons as Prioress and Covent and they are alwaies to be intended to be in their Chapter-house and cannot come into Court to acknowledge a Deed To which it was answered by Cook That this acknowledgment being generally pleaded it shall be intended that it was done by a Lawful means and there is no doubt but that such a Corporation may levy a Fine and make a Letter of Attorney to acknowledge it and see 2 Ma. Fulmerstones case 105. It was further objcted 2 Inst 674. That this Deed was enrolled the same day that it beareth date for the pleading is per factum suum gerens Datum 2 Novemb. 29 Hen. 8. et iisdem die anno irrotulat And by the Statute such a Deed ought to be enrolled within six Months next after the date so as the day of the date is excluded and so it is not enrolled within six Months As to that it was answered by Cook That the time of computation doth begin presently after the delivery of the Deed as in the common Cases of Leases If a man makes a Lease for years to begin from the day of the date the same is exclusive but if it be To have and to hold from the date of the Deed it shall begin presently And an Ejectment supposed the same day is good and then here this Enrolment is within the six Months Dyer 220. b. 1 Cro. 717. and yet see 5 Eliz. 128. Dyer Pophams case It was also objected That it is alledged in the conusans That the Manor was sold to the Lord Audley and that the Deed of Bargain and Sale was acknowledged and enrolled in the Chancery the said Lord being then Lord Chancelor and he cannot take an acknowledgment of a Deed or enrolment of it to himself for he is the Sole Iudge in the said Court so as the Deed is acknowledged before himself and enrolled before himself and that is good enough for here we are not upon the common Law but upon the Statute and here the words of the Statute are performed And the enrolment of the Deed is not the substance of the Deed but the Deed it self Also the acknowledgment of the Deed after it is enrolled is not material for he is estopped to say that it is not acknowledged And as to the matter it self a man shall not have averment against the purport of a Record but against the operation of a Record as not put in view not comprised partes ad finem nihil haberunt c. And against Letters Pattens of the King Non concessit is a good plea which see 18 Eliz. for by such plea it is agreed that it is a Record but that nihil operatur CCLVIII. Osborn and Kirtons Case Hill. 31 Eliz. In the Kings Bench. Rot. 258. IN Debt upon an Obligation The Defendant cast a Protection Debt upon which the Plaintiff did demur Tanfield The Protection is not good for the Defendant is let to Bail and so is intended always in prison for so the Record makes mention and then the Protection quia moratur in portubus Zeland is against the Record Protection and the Court ought to give credit to Records especially Secondly The words of the Protection are That Kirton is imployed in Obsequio nostro which is no cause of protection for the usual form and so is the Law that such a person be imployed in negotio Regni for the defence of England c. For if the King will give aid unto another Princes Subjects employed in such service he shall not have Protection And afterwards variance was objected betwixt the Bill and Declaration and the Protection for the Bill is against John Kirton of A. Gentleman the Protection is John Kirton only But the same was holden no such variance being only in the Addition for before the Statute 1 H 5. additions were not necessary in any actions CCLIX Boyton and Andrews Case Mich. 30 Eliz. Rot. 156. In the Kings Bench. IN Debt upon an Obligation the Condition was Debt 1 Cro. 135. to make sufficient assurance of certain Lands to the Obligee before the tenth day of March 17 Eliz. And if it fortune the said Obligee be unwilling to receive or mislike such assurance but shall make Request to have one hundred pounds for satisfaction thereof Then if upon such Request the Obligor pay one hundred pounds within five months That then the Obligation shall be void And at the day the Obligee doth refuse the assurance and afterwards 27 Eliz. request is made to have the hundred pounds It was the clear opinion of the whole Court That the said Request was well enough for the time and he might make it at any time during his life he is not restrained to make it before the day in which the Assurance is to be made and afterwards judgment was given for the Plaintiff CCLX Knight and Savages Case Mich. 29 30 Eliz. Rot. 546. In the Kings Bench. A Writ of Error was brought upon a Iudgment given in Leicester in Debt Tanfield assigned Error Error 2 Cro. 206. 2 Cro. 109. 654. Sty 91. Yel 164. 165. Post 302. because in that Suit there was not any plaint and in all inferior Courts the plaint is as the original at the common Law and without that no process can issue forth And here upon the Record nothing is entred but that the Defendant summonitus fuit c. and therefore the first entry ought to be A. B. queritur adversus C c. Clench A Plaint ought to be entred before process issueth the summons which is entred here is not any plaint and for that cause the Iudgment was reversed It was said That after the Defendant appeared a Plaint was entred but it was said by the Court That that shall not mend the matter for there ought to be a plaint out of which the process shall issue as in the Courts above out of the original Writs CCLXI Kirby and Eccles Case Trin. 31 Eliz. In the Kings Bench. 1 Cro. 137. IN an Action upon the Case the Plaintiff declared Quod cum quaedam communicatio fuisset betwixt the Plaintiff and one Cowper That Cowper should mast certain Hogs for the Plaintiff the Defendant did promise That in consideration that the Plaintiff promised give unto the Defendant three shillings and four pence for the fatting of every Hog That the said Hogs should be redelivered to him well fatted to which promise and warranty the Plaintiff giving faith delivered to the said Cowper one hundred and fifty Hogs to be masted and that one hundred of them were delivered back but the residue were not It was moved That here is not any consideration for which the Defendant should be charged with any promise but it was argued on the other side That the Promise was the cause
of the Contract and being made at the time of the Communication and contract should charge the Defendant but if the promise were at another time it should be otherwise There was a Case lately betwixt Smith and Edmunds Two Merchants being reciprocally endebted the one to the other agreed betwixt themselves to deliver all their Bills and Bonds into the hands of one Smith who promised that he would not deliver them to the parties until all accounts were ended betwixt them and yet he did deliver them and for that an Action brought against him was adjudged maintainable yet there was not any consideration nor was it material for the action is grounded upon the Deceit and so is it here upon the Warranty And of that opinion were Clench and Wray Iustices but Gawdy was of a contrary opinion CCLXII Woodshaw and Fulmerstones Case Hill. 30. Eliz. Rot. 699 In the Kings Bench. WOodshaw Executor of Heywood brought Debt upon a Bond against Richard Fulmerstone and the Writ was dated October Mich. 29 30 Eliz. and the Condition of the Bond was That if Fulmerstone died before his Age of one and twenty years and before that he had made a Ioynture to A. his Wife Daughter of the Testator Heywood Then if the said Defendant caused one hundred pounds to be payed to the said Heywood within three months after the death of the said William that then the Bond should be void and the said William Fulmerstone died 30 September 30 Eliz. which matter he is ready c. The Plaintiff doth traverse absque hoc that the said Heywood died intestate Tanfield It appeareth of Record that the Plaintiff hath not cause of action for this one hundred pounds was to be paid within three Months after the death of William Fulmerstone 1 Cro. 271 325 565. as the Defendant hath alledged which is also confessed by the Plaintiff and this Action is entred Mich. October 30 Eliz. scil within a month after the death of William Fulmerstone and so before the Plaintiff hath cause of action and therefore he shall be barred Gawdy Where it appeareth to the Court that the Plaintiff hath not cause of Action he shall never have Iudgment as in the Case betwixt Tilly and Wordy 7 E. 4. But here it doth appear that the Plaintiff hath cause of Action for where a man is bound in an obligation the same is a duty presently Obligation and the condition is but in defeazance of it which the Defendant may plead in his discharge CCLXIII Windham and Sir Edward Cleers Case Trin. 31 Eliz. In the Kings Bench. ROger Windham brought an Action upon the Case against Sir Ed. C. declared that the said Ed. being a Iustice of Peace in the County of N. and where the Plaintiff was a loyal subject Action upon the Case of sclander 1 Cro. 130. and of good fame all his life time nor ever touched or reproched with any offence of Roâ—ery c. the Defendant malitiose invide machinams ipsum Rogerum de bonis nomine fama et vita deprivare directed his warrant to divers Baylifs and Constables of the said County to arrest the said Plaintiff And it was alledged in the said Warrant That the Plaintiff was accused before him of the stealing of the horse of A. B. by reason of which the Plaintiff was arrested and so detained until he had entred into a Bond for his appearance c. whereas in truth he was never accused thereof nor ever stole such horse and whereas the Defendant himself knew that the Plaintiff was guiltless by reason of which he was greatly discredited c. And it was found for the Plaintiff And it was moved that upon this matter an Action doth not lye for a Iustice of Peace if he suspect any person of Felony or other such Offence may direct his Warrant to arrest him 14. H. 8. 16 Gaudy and Clench If a man be accused to a Iustice of Peace for Felony for which he directs his Warrant to arrest him although the accusation be false the Iustice of Peace is excused but if the party in truth was not accused before the Iustice it is otherwise It was a Case lately betwixt the Lord Lumley and Foord where Foord in a letter written by him had written It is reported That my Lord Lumley seeketh my life If it was not Reported an Action upon the Case lieth but if reported no Action lieth So here if he was accused no Action lieth but if not an Action lieth And afterwards in the principal Case Iudgment was given for the Plaintiff CCLXIV Isleys Case Trin. 31 Eliz. In the Kings Bench. ISley and others were Plaintiffs in an Ejectione firmae and upon the general Issue it was found for the Plaintiffs and 4 days after the verdict given was moved in stay of judgment a special maâ—ter in Law whereof the Iustices were not resolved for the law but took advisement and gave day over and in the mean time one of the Plaintiffs died which matter the Defendant shewed to the Court in further stay of the Iudgment But by Coke the same is not any cause for the Postea came in Quindena Pasch which was 16 Aprilis at which day the Court ought to have given Iudgment presently but took time to be advised and the 19 of April one of the Plaintiffs died And the favour of the Court ought not to prejudice us for the Iudgment here shall have Relation to the 16 of April at which time he was alive and it was so of late adjudged in the Case of Derick James who died the day after the verdict and yet Iudgment was not stayed for the Court after verdict cannot examine surmises and they have not a day in Court to plead and in our case It was but a day of Grace and no entry is made of it Although no plea can be now pleaded after verdict yet as amicus curiae one may inform us of such matter And sometimes in such case Iudgment hath been stayed as 9 Eliz. and sometimes notwithstanding such Exception as 2 Eliz. So as I conceive the matter is much in the discretion of the Iustices And because the same was a hard verdict and much against the Evidence It is good discretion upon this matter to stay Iudgment and such was the opinion of the Court. CCLXV. Steed and Courtneys Case Trin. 31 Eliz. In the Kings Bench. Error 1 Cro. 116. Owen 93. More 691. Prescription to levy a fine not good ERror was brought upon a Fine levied upon a Plaint in a writ of Covenant in the City of Exceter And two Errors were assigned First The Plaint was quod teneat convent de duobus tenementis Whereas in truth the word Tenement doth not comprehend any certainty for in the Word Tenement is understood Messuage Land Meadow Pasture c. and whatsoever syeth in tenure And 11 H. 6. 18. by grant of Lands and Tenements Rent or Common shall pass And an Ejectione firmae
day the same had bin good for such By-law doth not take away but order the Inheritance For the nature of a By-law is to put Order betwixt the Tenants concerning their affayrs within the Manor which by law they are not compellable to do And by Periam The Avowant ought to have averred That this By-law was for the Common profit of the Tenants See the Lord Cromwells Case 15 Eliz. Dyer 322. and afterwards in the Principal Case Iudgment was given against the Avowant CCLXXI. Wicks and Dennis Case Mich. 31 32 Eliz. In the Common Pleas. Replevin WIcks brought a Replevin of Dennis who avowed That one Dennis his Father was seised of the Manor c. and granted out of it to the avowant a Rent of twenty pounds per annum and further granted That if the said Rent be arrear unpaid six days after the feasts c. wherein it ought to be paid si licite petatur That then it should be lawful to distrein The grantor afterward by Indenture Covenanted with the Lord Treasurer and others to stand seised of the same Manor unto the use of himself and his heirs until he or his heirs have made default in they payment of one hundred pounds per annum until three thousand pounds be paid and after default of payment to the use of the Queen and her heirs until the sum of three thousand pounds should be paid and levied The grantor afterwards levied a fine to the said Lord Treasurer and others to the uses aforesaid the Rent is arrear default of the payment of the hundred pounds in made Office is found The Queen seised the land the Avowant during the possession of the Q. demanded the Rent the arrearages thereof The Queen granted over the Manor to W. B. D. the grantee did distrain for the rent arrearages demanded ut supra It was moved by H. Serjeant That this demand of several sums payable at several days before is not good for every sum ought to be severally demanded when it was first due scil si licite petatur scil within the six days for otherwise without such demand distress is not lawful and he resembled it to the case of Sir Thomas Gresham 23. Elizabeth Dyer 372 of several Tenders Periam conceived that the demand ought to be several Anderson That the demand is good enough And as to the demand made during the possession of the Queen It was holden by the whole Court to be good enough for although the possession of the Queen be priviledged as to the distress yet the demand is good Demand of Rent charge during the possession of the King good without any wrong to her prerogative for the Rent in right is due and the possession of the Queen is in right charged with it and the Rent is only recoverable by Petition as it was by way of distress and if the partie sueth to the Queen by Petition for the said Rent he ought to shew in his Petition that he hath demanded the Rent for if the possession had bin in a common person he could not distreyn before demand nor by consequence have Assise And the Rent notwithstanding the possession of the Queen is demandable and payable for to entitle the party unto Petition against the Queen and to distress against the subject when the possession of the Queen is removed And see 7 H. 6. 40. disseisee may make continual claym although the possession of the Land of which he is disseised be in the King. And 34 H. Br. seisin 48. If the heir at full Age intrude upon the possession of the King and pays Rent to the Lord of his Land holden of a subject the same is a good seisin and shall bind the heir after he hath sued his livery 5 E. 4. 4. and see 13 H. 7. 15. That distress taken upon the possession of the King is not lawful but seisin obtained during it is good So in 21 H. 7. 2. CCLXXII Ashegells and Dennis Case Mich. 31 32 Eliz. In the Com. Pleas. Int. M. 30 31. Rot. 458. AShegel brought a Quare Impedit against Dennis Quare Impedit 1 Cro. 163. Hob. 304. and the Plaintiff Counted that the Defendant had disturbed him to present ad vicariam de D. and shewed that the Queen was seised of the Rectory of D. and of the Advowson of the vicaridge of D. and by her letters Patents gave unto the Plaintiff Rectoriam praedictam cum pertinentiis etiam vicariam Ecclesiae praedict And it was holden by the whole Court That the Advowson of the vicaridge by these words doth not pass nor so in the Case of a common person much less in the Case of the King But if the Queen had granted Ecclesiam suam of D. then by Walmesley Iustice the Advowson of the vicaridge had passed CCLXXIII Collman and Sir Hugh Portmans Case Mich. 31 32 Eliz. In the Common Pleas. IN Ejectione firmae by Collman against Sir Hugh Portman it was found by special verdict Ejectione firmae That the lands where were holden by Copy of the Manor of D. whereof Sir H. Portman was seised and that the Plaintiff was Copyholder in Fee and further found That the said Sir H. pretending the said Copy-hold lands to be forfeited Surrender of Copy-holder entred into Communication with Collman touching the same upon which Communication it was agreed betwixt them That the said Collman should pay to the said Sir Hugh five pounds which was paid accordingly that in consideration thereof Collman should enjoy the said Customary lands except one Wood called Combwood for his life and also of Alice his wife durante sua viduitate and that Collman should have Election whether the said lands should be assured unto him and his said wife by Copy or by Bill c. he chose by Bill which was made accordingly and further found That the said Sir H. held and enjoyed in his possession the said Wood c. upon this matter The Court was clear in opinion That here is a good surrender of the said lands and that for life only and that the said Sir Hugh had the Wood discharged of the customary interest CCLXXIV Thetford and Thetfords Case Mich. 31 32 Eliz. In the Common Pleas. Debt IN an Action of Debt for Rent the Plaintiff declared That Land was given to him and to T. his wife and to the heirs of their bodies and that his wife leased the Lands to the Defendant and that the Donees were dead and that the Plaintiff as heir c. for rent arrear c. and upon Non demiserunt the Iury found that the Husband and Wife demiserunt by Indenture and afterwards the husband died and the wife entred and within the term died Now upon the matter it seemed clear to Anderson that the Iury have found for the Defendant scil Non demiserunt for it is now no lease ab initio because the Plaintiff hath not declared
the opinion in Baintons Case 8 Eliz. Dyer 37. is not Law and so hath the Law been taken of late Popham contrary If before the Statute of 27 H. 8. the Father covenant in consideration of Advancement of his Son to stand seised to the use of I. S. for life and after the death of I. S. to the use of my Son in Fee here the estate of I. S. in the use is void and yet the estate in the use limited to my Son shall not take effect before the death of I. S. for the estate of my Son is not limited to take effect till after the death of I. S and therefore the possession of the Father is not charged with the use during the life of I.S. But if by way of Feoffment I.S. had refused the Son should have it presently and the Father should not have it for he by his Livery hath put all out of him and it was not the intent of the Feoffment that the Feoffee should have the Land to his own use Popham allowed the difference mentioned before out of 2 E. 4 19 H. 6. betwixt a Feoffment upon condition to enfeoff a stranger and to give in tail to a stranger and that is grounded upon the intent of the parties And Owen Serjeant put the Case cited before 1. 3 Eliz. Dyer 330. A Feoffment is made by the Husband to the use of himself for life and afterwards to the use of one Ann whom he intended to marry for during and until the Son which he should beget on the body of the said woman had accomplished the age of thirty one years and after such time that such Son should come unto such age unto the use of the said woman quamdiu she should live sole they entermarry the Husband dyeth without Issue the wife entreth immediately and continues sole and her Entry was adjudged lawful and the estate in Remainder good although she never had any Son and thereupon a Writ of Error was brought and the first Iudgment was affirmed note by Tanfield and others at the Bar that that was the most apt case to the purpose in the Law and the reason of such Iudgment was because they took it that Deeds ought to be expounded according to the meaning of the parties and estates in possession I grant there ought to be a particular estate upon which a Remainder may depend but the same is not necessary where the Conveyance is by way of use And if I covenant that A. shall have my Lands to him his Heirs to pay my Debts and Legacies the same is by way of bargain and sale and nothing passeth without Enrolment And here the Attainder doth not prevent the use as it hath been objected by Master Solicitor for the use doth rise before the Attainder for William Paget had a Remainder in tail in the life of his Father upon the first limitation c. Periam Iustice I lease my Lands to you to begin after the expiration of a Lease which I have made thereof to I.S. and in truth he hath not any Lease the same Lease shall never begin Manwood chief Baron I lease my Lands to you or grant a Rent to you to begin after the death of Prisoit Serjeant at Law when shall that begin Coke Presently Manwood cujus contrarium est Lex CCLXXX The Queen against the Arch-Bishop of Canterbury Fane and Hudson Mich. 31 32 Eliz. In the Common Pleas. Rot. 1832. THe Queen brought a Quare Impedit against the Arch-Bishop of Canterbury the Bishop of Chichester and Hudson Quare Impedit 4 Len. 107. Hob. 303. 175. Owen 155. and counted that John Ashburnham was seised of the advowson of Burwash was outlawed in an action of Debt during which Out-lawry in force the Church voided for which it belongs to the Queen to present The Arch-Bishop and Bishops plead that they claim nothing but as Metropolitan and Ordinary Fane pleaded that King E. 4. Ex gratia sua speciali c. and in consideration of faithful service c. did grant to the Lord Hastings the Castle and Barony of Hastings and Hundred c. Et quod ipse haberet omnia bona catalla tenentium residentium non residentium aliorum residentium quorumcunque hominum de in Castro Baronia c. or within the same pro munero debit c. tam ad sectam Regis c. quam c. Ut legatorem quid ipse faceret per se vel per his sufficient Deputies c. And from him derived to the now Earl of Huntington as Heir and the said Earl so seised and the said Ashburnham seised of the advowson as appendant to the Manor of Ashburnham holden of the said Barony the Church aforesaid during the Out-lawry aforesaid became void For which the said Fane ad dictam Ecclesiam usurpando presentavit the said Hudson who was admitted and instituted c. with this That idem T.C. verificare vult that the said Church of Burwash is and at the time of the grant was within the Precinct Liberty and Franchise aforesaid and that the said Manor of Ashburnham at the time of the grant aforesaid was holden of the said Barony and the Incumbent pleaded the same Plea if by that grant of King Edward the fourth to the Lord Hastings scil omnia bona catalla c. The presentment to the Church should pass or not was the question Shutleworth Serjeant argued for the Queen he confessed that the King might grant such presentment but it ought to be by special and sufficient words so as it may appear by them that the intent of the King was to grant such a thing for the general words omnia bona catalla will not pass such special Chattel in the Kings grant And he conceived that by the subsequent words no Goods or Chattels shall pass by such Grants but such which may be seised which the avoidance of a Church cannot be quod ipse liceret per se vel ministros suos ponere se in seisinam 8 H. 4. 114. 15. the King granted to the Bishop of London that he should have Catalla felonum fugitivor de omnibus hominibus tenentibus de in terris feodis praedict and of all resiants within the Lands and Fees aforesaid Ita quod si praedict homines tenentes residentes de in terris feodis praedict seu aliqui eorum seu aliquis alius infra cadem terra feodis pro aliqua transgressione c. vid. librum c. and by Tirwit By that Grant the goods of those who are put to Pennance shall not pass so of the goods of one Felo de se vid. 42 E. 3. 5. One being impanelled on the Grand Enquest before the Iustices of Oyer and Terminer pleaded the charter of the King of exemption from Enquests and because in the said charter was not this clause More 126. licet tanget nos
all Lands which are ancient Demesn are holden in Socage so as they were all Husbandmen who manured their Lands for the sustentation of the Kings Subjects to which they had such such priviledges to be the better able to follow their Husbandry and therefore to disable such profitable Subjects and to prescribe against these Liberties and Priviledges is to take away the name of ancient Demesn and to make their Lands at the common Law. Hobart contrary To shew the authority to demand is not necessary for our Prescription is not upon demand to distrain For the common Officer hath authority to demand for they ought to demand it who ought to take the thing demanded and those are the Bailiffs and Burgesses and then when their Water-bayly doth it it is as much as if it had been done by the corporation which see 48 E. 3. 17. The Mayor and comminalty of Lincoln brought an action of covenant against the Mayor and comminalty of Derby and declared that the Mayor and comminalty of Derby had covenanted with the Mayor and comminalty of Lin. that they should be quit of Murage Pontage Custom and Toll within the Town of Derby of all Merchandises of those of the Town of Lin. and further declared That I.W. and H.M. two Burgesses of the Town of Derby had taken certain Toll of certain Burgesses of the Town of Lin. c. Exception was taken to this Declaration because they had alleadged the taking of such Toll not by the corporation of Derby but by I. and H. two of the Burgesses of it in which case the Plaintiffs might have an action of Trespass against the Burgesses for the act of any of the corporation is not the breaking of the covenant made by the comminalty but it was not allowed for if the common Officer of the Town doth any thing for their common use as it is intended such thing was done by the Officer it is reason all the Town be answerable for it and the whole comminalty by intendment cannot come at one time to take c. and so in our case for as much as the corporation ought to make the demand and their common Officer doth it to their use the same is the act of the whole corporation As to the matter in Law we have pleaded specially That we took Toll only of those things which are brought by Sea by Merchants and not otherwise and I conceive that Tenants in ancient Demesn are not discharged of Toll for all things but only for such which arise out of their Tenements or are bought for their Tenements or Families there and their sustentations according to the quantity of their Tenements 9 H. 6. 25. 19 H. 6. 66. They shall be quit of Toll of all things sold and bought coming of their Lands or for the manurance of their Lands And 7 H. 4. 111. Tenants of ancient Demesn ought to be quit of Toll for Oxen or Beasts bought and sold for tillage and manurance of their Lands and for their sustenance and maintenance of their Families and for putting them to Pasture to make them fat and more vendable and so to sell them c. And see accordingly F.N.B. 224. D. See Crook 138. 139. 28 Eliz. A Iudgment was given for the said parties for the Plaintiffs but there the Plaintiff declared generally and the Defendant did demur in Law generally wherefore by common intendment the Cattel were bought for the tillage and manurance of their Lands For there it was not shewed as it is here that it was to Merchandize Also we have justified not only for Toll but also for Trouage and that they have not shewed and therefore as to the Trouage our justification is good enough for their priviledge shall not be construed to extend beyond the words of it As the priviledge of the Law is That if I leave my horse at a Smiths Forge to be shod there my horse cannot be distrained but if I or my Servant take the Saddle from the Horses back and lay it in the Smiths Forge the Saddle may be distrained Then here are two customs meeting together and to begin together and the one was not before the other then the particular custom shall stand And I conceive that by the Writ de exoneratione sect Fitz. N. B. 161. b. The Tenants in ancient Demesn have not always such priviledges for the Writ saith quod si ita sit then c. and nisi ipsi eorum antecessores tenentes de eodem manerio venire consueverunt temporibus retroactis and see the same matter in the Register 181. And afterwards Iudgment was given quod querens nihil capiat par billam for the Iustices were of opinion that the Tenants in ancient Demesn should pay Toll for their Merchandizes CCCXVI. Lancaster and Lucas Case Mich. 32 33 Eliz. in the Kings Bench. TRespass was brought for entring into the Parsonage-house of Ringhall and divers Lands appertaining to it Leasâ—â— The Defendant being Farmor of the Parsonage pleaded Not guilty and the Iury found that one Tybbin was Parson of the said Church and that one Ash and Dorothy his Wife Wivell and Drausfield were Patrons of the said Church scil Ash and his Wife in the Right of his Wife Wivell as Tenant by the Curtesie the Reversion to his Son and Drausfield also as Tenant by the Curtesie but without Issue by his Wife c. so as the Inheritance of the said Parsonage was in Wivell and Ash and afterwards the Bishop of Chester being Ordinary the Parson and Patron 4 E. 6. joyned in a Lease of the Rectory which Lease was void as to the Wife of Ash to S. who assigned it to the Defendant All the Lessors dyed and further found that Ash and Wivell were Heirs of the Patronage and that the Church being void the Presentment came to the Bishop by reason of Lapse and that the Successor of the Bishop had Collated his Clark. Cook argued And he conceived that the same now Incumbent should avoid the Lease in toto and the case is but this Three Coparceners Patrons of an Advowson or Tenants in Common the Parson three Patrons and the Ordinary joyn in a Lease where the one of them is a Feme-covert and so her Act void If the Successor of the Incumbent being presented by Lapse shall avoid it in all And he conceived that he should for all three have interest in the Parsonage and all three ought to agree but the agreement of the one is worth nothing But it hath been said that that is but matter of assent and that the assent of the one is as strong as the assent of them all Attoâ—nment As if many Ioynt-tenants hold by certain Services and the Lord granteth the Services to a stranger and one of the Ioynt-tenants attorneth to the Grant the same is as sufficient as if they had all attorned Lit. 128. 566. Otherwise it is of a Rent-charge for there all the Ioynt-tenants of the Lands charged
upon the grant of the said Rent ought to attorn to the Grant for the Ter-tenant ought to attorn and one of them is not Ter-tenant And in case of a Rent-charge the Avowry is upon the Lands but Attornment differs from our case for Attornment is but a bare assent without any interest in him who attorns for an Abator may do it but here is matter of Interest and in Attornment Attornment for one acre is effectual for all 18 E. 3. Fitz. variance 63. but otherwise it is in case of Confirmation for one acre the same doth not extend to the rest for in such case an Interest passeth So here the one of them is not Patron therefore all of them ought to concur 31 E. 3. Grants 61. That such act of the Patron shall not bind but according to the Estate of the Patron which see Lit. 112. 528. as if Tenant in Tail confirm the same shall not bind the Presentee of the issue See Fitz. Grants 104 In R. 2. The case was that the Bishop of Covent and Lichfeild had two Chapters one of Coventry the other of Lichfeild and he made a conveyance but one Chapter only did confirm it the same doth not bind the Successor for both are but one Chapter in respect of the Bishop and see the case abridged by Statham Title Assize for if the Bishop is chosen by both Chapters there a confirmation must be of them both The case in Dyer 11 Eliz. 282. Thark Archbishop of Dublin hath two Deans and Chapters the one surrendreth without the assent of the Bishop and afterwards the other Dean and Chapter confirmeth a Lease made by the Bishop the same is good I confess that for the Surrender was by Act of Parliament and so one sole Chapter remained And in our case the Lease cannot be good in part and void for the residue for all are but one Patron as 22 H. 6. 47. Two Coparcenes are they make composition to present by Turns a Writ of Annuity is brought against the Incumbent he shall have aid of both And see the Case betwixt Gore and Dawbney in the Exchequer Chamber upon a Writ of Error where two are accountable an Account made by the one is not good for both the Accountants shall make but one account and therefore the Account of the one cannot be good And the Lord Anderson put this Case two Ioynt-tenants of a Manor the one of them doth grant a Copy the same is void for he is not Dominus pro tempore And see as to the assent of them all c. 3 Eliz. 190. Dyer But it hath been objected That now the Incumbent comes in by the Ordinary and not by the Presentment of the Patron and the Ordinary is bound by the confirmation of his Predecessor so that the collation of the Bishop by Lapse is in the right and sted of the Patron and as the Presentee of the Heir of the Patron shall avoid c. so also of the Ordinary and 20 E. 3. Br. Presentment 12. The Patron shall have a Writ of Darrein-presentment upon the present of the Bishop for Lapse and 22 H. 6. If a man can recover an Advowson and after the Bishop collate for Lapse the same is an Execution of the Iudgment and will make a possessio fratris as Moyle saith And in our case this confirmation is void in all because Non sunt concurrentes ii qui in hac parte concurrere debuerant And it is an entire Act and cannot be avoided in part and stand for the residue and the Presentee comes in in the right of the Heir for which he may avoid it c. Popham contrary it is to be here considered if the Ordinary hath Interest in the Church by this Lapse or only an authority for if he hath an Interest then it will follow that every one of his Successors shall be bound by his Confirmation and also their Presentees It hath been objected that there ought to be a full and entire Patron who makes such a Lease otherwise it is void But that is not so as if the Patron be Tenant for life his Lease or Confirmation shall not be void in all but shall be good during his life which see 31 E. 3. Grants 61. and 19 Eliz. 356. A Parson makes a Lease for forty years the Bishop being Patron and Ordinary confirms it the Patron dyeth the Bishop presents and afterwards is translated this Lease shall stand during the life of the Bishop and of the new Incumbent who found the Church charged and then such Lease may be good for part and void for part See for the same 2 E 3. 8. If the Advowson of a Church be appropriated unto a Prior and his Successors if afterwards the wife of the Grantor be endowed of it and present her Clerk the Church is become dis-appropriated during the life of the Wife but afterwards shall stand See the case cited to the contrary 29 Eliz. in the case of the Earl of Bedford 7 Co. 8. At the beginning the Patron was not restrained to any time to present his Clerk but the six months was appointed at the instance and suit of the Ordinaries by a Canon confirmed in the councel of Lateran before which time the Ordinaries had not any Lapses but after the said Canon they had an Interest in the Church and this appeareth in the Register And see F.N.B. 37. f. that after the Ordinary is entituled to Lapses The Plaintiff in a Quare Impedit cannot have a Ne admittas for now the Ordinary hath an Interest And if the Bishop hath Title to present by Lapse and before Presentment he dyeth so as his temporalties come to the King the King shall present which proves that it is an Interest and the Civilians call it Interesse caducum conditionale And in our case the confirmation of the Coparcener shall bind the other Coparceners in a Nativo habendo shall bind them all and the villain shall be free for ever And it was moved also if an usurper or the Clerk who is in by him shall avoid this clause and by the words of the Statute of West 2. Si tempus semestre transierit per impedimentum alicujus ita quod Episcopus Ecclesiam conferat verus Patronus ea vice praesentationem suam amittat adjudicentur damna ad valorem Ecclesiae pro duobus annis Wherefore what the Patron loseth the Ordinary hath the same therefore it is an Interest and in lieu of that loss the Statute gives damages to the Patron c. And the case was adjorned to be further argued at another day c. CCCXVIII Pet and Baldens Case Pasch 33. Eliz. Rot. 392. In the Kings Bench. IN a prohibition the Plaintiff declared Prohibition 1 Cro. 274. that whereas Michael Pett was seised of divers Lands and made his Will by which he made the Plaintiff his Son his Executor and thereby devised unto A. his Wife one hundred pounds in consideration and recompence
of her Dower of all his Lands and dyed and the said A. took to Husband the Defendant And that after betwixt the Plaintiff and Defendant colloquium quoddam habebatur c. upon which conference and communication the Defendant in consideration that the Plaintiff promised to pay to him the said one hundred pounds promised to make to him a discharge of the said one hundred pounds and also of the Dower of his Wife and shewed further that notwithstanding that the said Pett was ready and offered the said one hundred pounds and Dower also yet c. Vpon which there was a Demurrer in Law It was moved by Tan. that here is not any cause to have a prohibition for the agreement upon the communication is not any cause for it doth not appear that it was performed Coke A Prohibition lieth for the Wife cannot have both money and Dower for that was not the meaning of the Devisor and therefore it hath been holden that if a man deviseth a Term for years to his Wife in satisfaction and recompence of her Dower if she recovereth Dower she hath lost her Term Also here is modus and conventio which alters the Law scil mutual agreement So if the Parson and one of the Parishioners agree betwixt them that for forty shillings per annum he shall retain his Tithes for three years c. as it was in the Case betwixt Green and Pendleton c. it is good CCCXIX. Martingdall and Andrews Case Mich. 32 33. Eliz. In Banco Regis Action upon the case for Wast IN an Action upon the Case the Plaintiff declared that one Mildmay was seised of a House in A. and that he and all those whose estate c. time out of mind c. have had a way over certain Lands of the Defendants called C. pro quibusdam averiis suis and shewed that the said Mildmay enfeoffed him of the said House and that the Defendant stopt the said way to his damage c. And it was found for the Plaintiff and it was moved in Arrest of Iudgment that the title to the way is not certainly set forth i.e. pro quibusdam averiis suis quod omnes Justiciarii concesserunt But Gawdy Iustice conceived that the same was no cause to stay Iudgment For it appeareth to us that the Plaintiff hath cause of Action although that the matter be incertainly alleadged and of this incertainty the Defendant hath lost the advantage having surceased his time by pleading to it as 20 E. 3. Trespass for taking and carrying away of Charters the Defendant pleaded Not guilty and it was found for the Plaintiff to the damage c. And Error was brought because the Plaintiff had not set down in his Declaration the certainty of the Lands comprized in the Charters But non allocatur for the Defendant ought to have challenged that before and also 47 E. 3. 3. In a Writ of Covenant the Plaintiff declared of a Covenant by which the Defendant covenanted with the Plaintiff to assure to him all his Lands and Tenements which he had in the Counties of Gloucester and Lincoln and declared that at a certain day he required the Defendant to make him assurance of all the Lands c. And the Writ of Covenant was general quod teneat conventionem de omnibus terris quas habeat in c. And it was objected as here that the Writ wanted certainty as how many Acres or such a Mannor but non allocatur for here the Plaintiff is not to recover Land but only Damages and the Writ was awarded good Fenner Iustice the Cases are not like to the Case at Bar for in the said Cases the certainty is not needful but for the taxing of the Damages but here the certainty of the number of the Cattel is part of the title CCCXX Beale and Taylors Case Mich. 32 33 Eliz. In the Kings Bench. UPon Evidence to a Iury Leases 1 Cro. 222. it was holden by Gawdy and Clench Iustices that if a Lease for years be made and the Lessor covenants to repair during the Term if now the Lessor will not do it the Lessee himself may do it and pay himself by way of Retainer of so much out of the Rent which see 12 H. 8. 1. 14 H. 4. 316. Retainer of Rent A Lease for years by Indenture and the Lessor covenants to repair the Houses and afterwards the Lessor commands the Lessee to mend the Houses with the Rent who doth it accordingly and expends the Rent in the charges c. So 11 R. 2. Bar. 242. The Lessor covenants that the Lessee shall repair the Tenements when they are ruinous at the charge of the Lessor In debt for the Rent the Lessee pleaded that matter and that according to the Covenant he had repaired the Tenements being then ruinous with the Rent and demanded Iudgment if action Jones 242. Yelv. 43. c. and good Fenner Iustice contrary for each shall have action against the other if there be not an express Covenant to do it Quaere If the Lessor covenant to discharge the Land leased and the Lessee of all Rent-Charges issuing out of it If a Rent-charge be due if the Lessee may pay it out of his own Rent to the Lessor ad quod non fuit responsum CCCXXI. Offley and Saltingston and Paynes Case Mich. 32 33 Eliz. In the Kings Bench. OFfley and Saltingston late Sheriffs of London Escape 1 Cro. 237. brought an Action upon the Case against Payne because that he being in Execution under their custody for fifty three pounds in which he was condemned at the Suit of one Spicer made an escape the debt not satisfied by reason whereof they were compelled to pay the money The Defendant confessed all the matter but further pleaded that after the Escape Spicer had acknowledged satisfaction being after the Escape upon Record of the sum recovered upon which there was a Demurrer Owen Serjeant argued that the acknowleding of satisfaction being after the Escape was not any Plea for when the Plaintiffs Sheriffs have paid the money recovered there was no reason that Spicers acknowledging satisfaction should stop the Sheriffs of their Remedy against Payne It was holden by the Iustices that the Plaintiffs in this Action ought to shew that they had been impleaded by him who recovered for they cannot have this Action before they are sued For perhaps the Plaintiffs who recovered must be contented to hold themselves to the Defendant and to be satisfied by him It was said by Glanvil Serjeant that by the Escape the Debt was cast upon the Sheriffs and the Defendant discharged and that it was the Case of Sir Gervas Clyfton who being Sheriff suffered him who was in Execution and in his custody to go and see a Play and the same was adjudged an Escape and the party could not be in Execution again And then he said that this acknowledgment of satisfaction could not be any Bar to the
this Court is especially named Wray This Proviso begins with Iustices of the Peace therefore it doth not extend to offences which are Treason and the meaning of this Statute of 23 Eliz. was to enlarge the Statutes of 1 5 Eliz. for where the offence against the Statutes before was to be enquired at the next Session and the other within six Months now by this Statute it may be enquired at any time within the year and day but it doth not extend to restrain the proceedings against offences of Treason for the words of the Statute are That such offences shall be inquired before Iustices of Peace within a year c. But in the next clause the Iustices of Peace may punish all offences against this Act but Treason by which it appeareth that no offences are restrained to time but those which the Iustices of the Peace have authority to hear and determine and that is not Treason Gawdy to the same purpose For all the Proviso is but one sentence and there the whole shall be referred to spiritual offences as the not coming to Church c. CCCXXIII Filcocks and Holts Case Mich. 32 33 Eliz. In the Exchequer Error Assumpsit IN an Action by Filcocks against Holt Administrator of A. the Plaintiff declared how that the Husband of the Defendant who died intestate was indebted to the Plaintiff in ten pounds by Bill and that the Defendant in consideration that the Plaintiff would permit the Defendant to take Letters of Administration and give to her further day for the payment of the said ten pounds promised to pay the said ten pounds to the Plaintiff at the day And upon a Writ of Error brought in the Exchequer upon a Iudgment in the Kings Bench in that case It was assigned for Error that here is not any consideration for by the Law she is to have Administration being wife of the Intestate and as to the giving of further day for the payment of the ten pounds the same will not make it good for it doth not appear that she was Administratrix at the time of the promise made and then she is not chargeable and then c. And such was the opinion of the Court. And it was said by Periam Iustice and Manwood chief Baron That the Bishop might grant Letters of Administration to whom he pleased if he would forfeit the penalty limited by the Statute â—atch 67 68. Also it was said where an Executor or Administrator is charged upon his own promise Iudgment shall be given de boniâ— propriis for his promise is his own act CCCXXIV Adams and Bafealds Case Mich. 33 Eliz. In the Kings Bench. Action upon the Case AN Action upon the Case was brought and the Plaintiff declared That where such an one his Servant departed his service without cause or license the Defendant knowing him to be his Servant did retain him in his Service and so kept him Tanfeild The Action doth not lye for if my Servant depart out of my service and another doth retain him an Action doth not lye at the Common Law if he do not procure him to leave my service and afterwards retain him or immediately taketh him out of my service And this Action is not grounded upon any Statute See 11 H. 4. 176. 47 E. 3. 14. 9 E. 4. 32. Gawdy The Action lieth for here is damage and wrong done to the Plaintiff Fenner contrary For the wrong is in the departure and not in the Retainer and upon the Statutes it is a good Plea to say for the Defendant that the party was vagrant at the time of the Retainer and the sciens doth not alter the matter CCCXXV Nash and Mollins Case Mich. 32 33 Eliz. In the Kings Bench. Prohibition 1 Cro. 206. Tithes NAsh and Usher sued a Prohibition against Mollins for that the Defendant had libelled against them in the Spiritual Court for Tithes of Wood growing in Barking Park in Essex the other did surmise that the Lands were parcel of the possessions of the Prior and Covent of Cree Church and that the said Prior and his Successors time out of mind c. had held the said Lands discharged of Tithes and held them so at the time of the Dissolution c. and the other part traversed it whereupon they were at Issue if the Prior c. held the Land discharged tempore Dissolutionis c. And now on the part of the Plaintiff in the Prohibition certain old persons were produced who remembred the time of the Monasteries and that they did not pay any Tithes then or from thence Exception was taken to the suggestion by Coke that here is nothing else than a Prescription de non Decimando for here is not set forth any discharge as composition unity of possession priviledge of order as Templarii Hospitiarii c. â—enner Iustice Spiritual persons may prescribe in non Decimando for it is not any prejudice to the Church Wray Although it is not set down the special manner of discharge yet it is well enough for we ought to take it that it was by a lawful means as composition c. or otherwise For the Statute is that the King shall hold discharged as the Abbot c. and we ought to take it that it was a lawful discharge of Tithes tempore dissolutionis And afterwards the Iury found for the Plaintiffs in the Prohibition But no Evidence was given to prove that the Defendant did prosecute in the Spiritual Court contrary to the Prohibition CCCXXVI Sheldons Case Mich. 32 33 Eliz. In the Kings Bench. SHeldon Talbot and two other four persons in all Indictment upon the Statute of 23 Eliz. were Indicted upon the Statute of 23 Eliz. of Recusancy the words of the Indictment were Quod illi nec eorum uterque venerunt to any Parish Church c. It was moved by Atkinson That the Indictment is not good for uterque doth refer unto one of them and not where they are many as here and so is an insensible word and so upon the matter there is no offence laid to their charge And the Iustices doubting of it demanded the opinions of Grammarians who delivered their opinions that this word uterque doth aptly signifie one of them Exposition of words and in such signification it is used by all Writers Gawdy I conceive that the opinions of the Grammarians is not to be asked in this case But I agree that when an unusual word in our Law comes in question for the true construction of it then the opinion of Grammarians is necessary But uterque is no unusual word in our Law but hath had a reasonable Exposition heretofore which we ought to adhere unto which see 28 H. 8. 19. Three bound in an Obligation Obligamus nos utrumque nostrum and by the whole Court uterque doth amount to quilibet And see 16 Eliz. Dyer 337 338. Three Ioyntenants in Fee and by Indenture Tripartite each of them
The last words of the Limitation do not distinguish or disjoyn it but respect the estate precedent And by Clench Iustice If the use limited to Ambrose shall depend only upon the Limitation of his death the same should be void for then he should not he in esse to take But the other Iustices were of a contrary opinion and that the use is good 7 H. 4. Gawdy Although that here be three things yet but two times for the words are not or at such of the said days or times as shall first happen for that would alter the case But here these words ought to be intended as if they were spoken before in the Limitation of the estate to the Daughters and cannot divide the former Limitation and he said that if by reason that the Limitation upon the death which is certain it shall vest in Ambrose presently then if after the other Limitation shall fall then his Remainder which vested in him upon the said certain Limitation should be devested and should now accrue to him upon the other Limitation which should be absurd and inconvenient c. It was adjorned CCCXXXI Thomas and Wards Case Trin. 32. Eliz. In the Kings Bench. IN Ejectione firmae by Thomas against Ward Ejectione firme 1 Cro. 102. upon a Lease made to him of the Manor of Middleton Cheney by one Chambers the Defendant pleaded that long time before the Lessor of the Plaintiff had any thing the Bishop of Rochester was seised and leased the same to the Defendant the Plaintiff by Replication said that the said Lease was upon condition viz. The Lessee by the Indenture of the said Lease did covenant that he would not put out or disturb any of the Tenants inhabiting within the said Manor out of their Tenancies doing their duties according to the custom of the said Manor and shewed that the Defendant had put out one Ann Green a Tenant dwelling there upon a Tenement parcel of the said Manor late in the possession and occupation of the said Ann and that the Bishop had re-entred for the condition so broken and made a lease to the Lessor of the Plaintiff upon which Replication the Defendant hath demurred in Law Tanfeild argued for the Defendant that the Bishop had no cause to re-enter for there is not any condition in the Case but only a Covenant for it comes in only on the part of the Lessee and they are words of Covenant only whereas every condition ought to be the words of the Lessor and the Bishop hath sufficient remedy by Action of Covenant But if the words had been indifferent and absolute without depending on the Lessor or Lessee then it had been otherwise as 3 E. 6. Dyer 65. Non licebit to the Lessee dare concedere vel vendere statum vel terminum without the Licence of the Lessor under pain of forfeiture the same is a good condition but here it is meerly a Covenant and it cannot be both Haughton Although the words sound in Covenant and be the words of the Lessee yet the Lease being made by Indenture the same is the Deed of both and every word in it is spoken by both parties and although that he may have an Action of Covenant yet he cannot thereby overthrow the Lease as by Entry by condition broken and yet by the words it seems the meaning of the Indenture was that by the breach of this Covenant the estate should be defeated for so are the words sub poena forisfactur And here by way of Action he cannot have the benefit of the whole Covenant and therefore he shall have it by way of condition And see the case betwixt Browning and Beston Plow 132. If it happen the Rent to be behind that then the Lessee Covenants that although the Rent be not demanded that the said Lease should be utterly extinct void and of no effect and 24 Eliz. there was a case betwixt Hill and Lockham where by the Indenture of Lease the Lessee Covenanted to grind all his Corn at the Mill of the Lessor and afterward in the end of the said Indenture the Lessee covenanted to perform all the Covenants sub poeâ—a sorisfactur and by the opinion of the whole Court the same was a condition And see 21 H. 6. 51. where in an Obligation where A was bound to B. the condition is written in this manner Praedict B. vult concedit That if the said A. doth stand to the Arbitrament of such a one that then c. the same is a good condition although they are the words of the Obligee and the Deed of the Obligor and so here is a good condition And such was the opinion of Wray and Gawdy and Fenner did not contradict it Wherefore Tanfeild said Admit here it is a condition yet here is not any breach of it sufficiently set forth for the breach is assigned because he had put out a woman unam tenentem inhabitantem out of certain Lands parcel of the said Manor late in the possession and occupation of the said woman and that might be that she was but Tenant at Will and the Covenant doth refer only to Copy-holders And it may be also that she had disseised one of the Tenants of the Manor in which case the putting out of such a Tenant being in by wrong is no breach of condition Also it is not averred in facto that Ann was Tenant of any part of the Mannor Also the Replication is That the said Defendant had ousted the said Ann where she had done her duty fecit debitum suum before the Ouster and that might be that she had done her duty once but not after and therefore he ought to have said that she had done her duty always before her putting out and this word duly being single is too general for it may be understood of curtesie where the words in the Indenture are Doing their duty according to the custom of the Manor And also it might be that Ann Green was Tenant and Inhabitant but was not put out of the Land which was parcel of the Manor And Wray said that these Exceptions were incurable And therefore Iudgment was given against the Plaintiff CCCXXXII Harvy and Thomas Case Mich. 31 32 Eliz. Rot. 414. In the Kings Bench. THe Case was Leases 1 Cro. 216. Husband and Wife seised of Lands in the Right of the Wife the Husband alone makes a Lease by word for years Afterwards the Husband and Wife levy a Fine and after the Wife and Husband both dye It was holden clearly by the whole Court that the Conusee should avoid the Lease CCCXXXIII Sly and Mordants Case Trin. 32. Eliz. Rot. 314 In the Kings Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 191. 2 Len. 103. 3 Len. 174. Dy. 250. 1 Cro. 198 199. that whereas he was seised of certain Lands the Defendant had stopped a Water-course by which his Land was drowned and found for the Plaintiff It
shewed our matter scil That we have Letters Patents of the Queen and that we were sworn in the said Office and so we are King of Heralds by matter of Record against which is pleaded only matter in defect of ceremony and circumstance which is not material An Earl is created with the ceremonies of putting a Sword broad-wise about his Body and a Cap with a Coronet upon his Head. Yet the King may create an Earl without such ceremonies And may also create an Earl by word if the same be after Recorded when a Knight is made Spurs ought to be put upon his Heels yet without such ceremony such degree may be conferred to and upon another for such ceremonies are or may be used or not used at the Kings pleasure Afterwards it was objected that the same is but a name of Office but not a name of Dignity To which it was answered that this word Coronamus always imports Dignity and this is a Dignity and Office as Earl Marquess c. Fenner Iustice The Patent is Nomen tibi imponimus and therefore Garter is parcel of his Name And therefore he ought to be Indicted by such Name And it should be hard to tye Estate and Degrees to ceremonies Gawdy was of opinion That this is but a name of Office and therefore the Indictment good as 1 Mar. Writ of Summons of Parliament issueth without these words Supream Head and the Writ was holden good for it is not parcel of the Name but addition only So here Fenner and Wray contrary for the words are Creamus Coronamus Nomen imponimus Ergo part of his Name which Clench also granted and afterwards Dethick was discharged CCCXXXVIII Strait and Braggs Case Pasch 32 Eliz. Rot. 318. In the Kings Bench. IN an Action of Trespass 2 Len. 1â—9 for breaking his Close in H. the Defendant pleaded that long before the Trespass the Dean and Chapter of Pauls were seised of the Manor of C. in the said County of H. in Fee in the Right of their Church and so seised King Edward the Fourth by his Letters Patents Dat. An. 1. of his Reign granted to them all Fines pro licentia Concordandi of all their Homagers and Tenants Resiants and Non-resiants within their Fee and shewed that 29 Eliz. A Fine was levied in the Common Pleas betwixt the Plaintiff and one A. of eleven Acres of Lands whereof the place where is parcel and the Post-Fine was assessed to 15 s. and afterwards Scambler the Forain Opposer did allow to them the said 15 s. because the said Land was within their Fee And afterwards in behalf of the said Dean and Chapter he demanded of the Plaintiff the said fifteen shillings who refused to pay it wherefore he in the Right of the said Dean c. And by their commandment took the Distress as Baily c. for the said 15 s. and afterwards sold it upon which the Plaintiff did demur in Law. It was moved that it is not averred that the Land whereof the Fine was levied was within their Fee but they say that Scambler allowed it to be within their Fee and the same is not a sufficient Averment which the Court granted And it was the opinion of the Court that the Dean and Chapter cannot distrain for this matter but they ought to sue for it in the Exchequer as it appeareth 9 H. 6. 27. In the Dutchess of Somersets Case Gawdy This Grant doth not extend to the Post Fine for Fine pro licentia Concordandi is the Queens Silver and not the Post Fine Wray All shall pass by it for it is about one and the same matter and they were of opinion to give Iudgment for the Plaintiff CCCXXXIX Sherewood and Nonnes Case Trin. 32 Eliz. Rot. 451. In the Kings Bench. Covenant IN an Action of Covenant the Plaintiff declared that Charles Grice and Hester his Wife were seised of certain Tenements calle Withons with divers Lands to the same appertaining and of another parcel of Land called Dole containing eight Acres to them and the heirs of the body of the said Charks on the body of the said Hester his wife lawfully begotten and so seised 15 Eliz. leased the same to the Defendant by Indenture for years by which Indenture the Lessor covenanted that the Lessee should have sufficient House-boot Fencing-wood and Hoop-wood upon the Lands during the Term and that further the Lessee covenanted for him his Executors and Assigns with the Lessor c. That it should be lawful for them to enter upon the Lands during the said Term and to have egress and regress there and to cut down and dispose of all the Wood and Timber there growing leaving sufficient House-boot Fencing-wood and Hoop-wood to the Lessee upon the Lands called the Dole for his expences at Withons and further that he would not take any Wood or Timber upon the Premisses without the assent or assigment of the Lessor or his Assigns otherwise than according to the Indenture and true meaning thereof And further declared That the said Charles and his Wife so seised levied a Fine of part of the Land to R. S. and his heirs to whom the Defendant attorned and that the said R.S. afterwards devised the same to I. his Wife the now Plaintiff for years the Remainder over to another and died and that the Defendant had felled and carried out of the Lands called Withons twenty loads of Wood without the assent and assignment of the Lessor or his Assigns for which the Plaintiff as Assignee brought the Action The Defendant pleaded That after the Lease John Grice and others by assignment of Hester had cut down and carried away fifty loads of Wood in the said Lands called the Dole and so they had not left sufficient Woods for his expences at Withons according to the Indenture for which cause he took the said twenty loads of Wood upon Withons for his expences upon which the Plaintiff did demur in Law. Godfrey The Plea is not good This Plea is no more but that sufficient Wood was not left upon the Dole for his expences and although there be not yet the Defendant cannot cut Wood elsewhere for he hath restrained himself by the Covenant Also the Covenant of the Lessor is That the Lessee shall have sufficient Wood upon the Dole for his expences at Withons but in his satisfaction he doth not alledge that he had need of Wood for to spend at Withons nor doth aver that he hath spent it there for otherwise he hath not cause to take c. And the meaning was that the Lessee should have sufficient Wood when he had need of it Hobart for the Defendant He would not speak to the Plea in Bar but he conceived that the Declaration was not good for here no breach of Covenant is assigned for the Covenant is in the Disjunctive scil That the Defendant should not take Wood without the assent or assignment of the Lessor or his Assigns And the Plaintiff
ipse nor any other by his procurement or consent had taken or riotously spent the Goods of the Plaintiff for Plea saith That the Plaintiff before the Writ brought had not sufficiently proved that the said John Hallywel took or riotously spent any of the Plaintiffs Goods Vpon which the Plaintiff did demur in Law. It was argued by Daniel That the proof is sufficient and good for the time if it be tried in the Action upon this Obligation and the proof intended is proof by twelve men for it is not set down before what person it shall be proved nor any manner of proof appointed and therefore it shall be tried according the Law of the Land which see 10 E. 4. 11. 7 R. 2. Bar. 241. Godfrey contrary This case is not like to the cases before for here is a further matter First warning and a month after Notice pay c. And if the proof shall be made in this Action the Defendant shall lose the benefit of the Condition which gives time to pay it within a month after for in all such cases the precedent Act of the Obligee is traversable as 10 H. 7. 13. I am bound by Obligation to enfeoff such a person of such Lands as the Obligee shall appoint In an Action brought against me I shall say-that the Plaintiff hath not appointed c. And here ought to be Notice first and proof ought to precede the Notice by the meaning of the Condition and so this differs from the other cases put for here proof is not the substance of the whole Owen Serjeant It is the folly of the Defendant to put himself to such an inconvenience for now he ought to pay the mony without delay of any month And here the Defendant ought to plead That he hath not imbezelled any goods of the Plaintiff and the Plaintiff Replicando shall say and shew the Special matter that he hath given Notice to him thereof See 15 E. 4. 25. CCCXLV. Manning and Andrews Case 18 Eliz. In the Kings Bench. Devise 4 Len. 2. IN Ejectione firmae the Iury found by special Verdict That Richard Hart and Katharine his Wife and divers other persons 1 H. 8. were seised of the Lands in question to the use of Richard and his Heirs ad per implend ultimam volunt dict Rich. who the first of August 8 H. 8. by his Will in writing devised That his Feoffees should be from thenceforth seised to the use of his said Wife for her life and after to the use of W. H. his Son for his life without impeachment of Wast and after the death of the said Katharine his Wife William his Son and Joan Wife of the said William his Feoffees should be seised to the use of the next Heir of the Body of the said William and Joan lawfully begotten for the term of the life of the same Heir and after the decease of the same Heir to the use of the next heir of the same heir lawfully begotten and for default of such issue to the use of the heirs of the body of the said William and Joan lawfully begotten for the term of life or lives of every such heir or heirs More Rep. 368. and for default of such heirs to the use of the heirs of the body of the said William and for default c. to the right heirs of William And further he willed That if any of the said heirs shall set alien say to mortgage the right title and interest which they or any of them shall have in or out of the same Lands or by their consent or assent suffer any Recovery to be had against them c. or do any other Act whereby they or their heirs or any of them may or ought to be disinherited that then the use limited to such heir so doing shall be void and of no effect during his life And that his said Feoffees shall be thenceforth seised to the use of the heir apparent of such Offender as though he were dead Richard Hart died William had issue by the said Joan his wife a Son named Thomas and died and afterwards 31 H. 8. Joan died Katharine died Thomas entred and had issue Francis and Percival Thomas by Deed indented 1 August 4 Eliz. bargained and sold to Andrews and levied a Fine to him with warranty And afterwards 6 Eliz. Francis levied a Fine to the said Andrews Sur conusans de droit come ceo And further by the said Fine released to him with warranty at the time of which Fine levied Percival was heir apparent to the said Francis Francis after had issue I. and F. who are now living The heir of the Survivor of the Feoffees within five years after the age of Percival and seven years after the Fine levied enter to revive the use limited to Percival who entred and leased to the Plaintiff This case was argued by the Iustices of the Kings Bench c. First It was agreed by the whole Court That Richard Hart being seised with seven others unto the use of himself and his heirs might well devise all the use Use suspended yet the Land devised although his use was in part suspended because he was joyntly seised with seven others to his own use and so the use for the eighth part suspended for when this Devise is to take effect i. e. at the time of his death all the possession of the Land by the Survivor passeth from the use and then the use being withdrawn from the possession shall well pass And by Wray A use suspended may be devised As if Feoffees to use before the Statute of 27 H. 8. be disseised by which disseisin the use is suspended and afterwards during the disseisin Cestuy que use by his Will deviseth That his Feoffees shall re-enter and then make an estate to I. S. in Fee the same is a good devise for by that disseisin the trust and confidence reposed by Cestuy que use in the Feoffees is not suspended Secondly It was holden that here a use implied was limited to Joan the wife of William although there be not any express devise of it according to the Book of 13 H. 7. 17. Thirdly when a use is limited to the Heir of the body of William and Joan lawfully begotten for life and afterwards to the Heir of the body of the same heir for life c. Geofry Iustice was of opinion That here is in effect an estate tail for the estates limited are directed to go in course of an estate tail for he wills That every heir of the body of his Son shall have the Land and the special words shall not make another estate to pass but that which the Law wills As if Lands be given to one for life the Remainder after his death to the Heirs of his body lawfully begotten notwithstanding that the words of the limitation imply two several estates yet because the Law so wills it is but one estate Gawdy Iustice said That
Entry so where an use is often executed by the Statute Cestuy que use without any Entry hath an actual possession i. As to the uses contingent nothing remains in the Feoffees for the setling of them when they happen but the whole estate is setled in Cestuy que use yet subject to such use and he shall render the same upon contingency And if any estate should remain in the Feoffees it could be but an estate for life for the Fee simple is executed in Cestuy que use with an estate in possession and then the Feoffees should be seised to another use than was given them by the Livery Also if a Feoffment be made unto the use of the Feoffor and his heirs until J.S. hath paid unto the Feoffor 100 l. from thenceforth the Feoffor and his heirs shall be seised to the use of the said J.S. and his heirs if upon such Feoffment any thing should remain in the Feoffees before the payment by I.S. the same should be a Fee-simple and then there should be two Fee-simples of one and the same Lands one in the Feoffor and the other in the Feoffees which should be absurd and therefore the best way to avoid such inconveniences is to continue the Statute that it draws the whole estate of the Land and also the confidence out of the Feoffees and reposeth it upon the Lands the which by the operation of the Statute shall render the use to every person in his time according to the limitation of the parties And also if any Interest doth remain in the Feoffees Then if they convey to any person upon consideration who hath not notice of the use then the said use shall never rise which is utterly against the meaning of the said Statute and the meaning of the parties and therefore to construe the Statute to leave nothing in the Feoffees will prevent all such mischief And if a Feoffment in fee be made to the use of the Feoffor for life and afterwards to the use of his wife which shall be for life and afterwards to the use of the right Heirs of the Feoffor The Feoffor enfeoffeth a stranger taketh a wife now cannot the Feoffees enter during the life of the Feoffor and after his death they cannot enter because they could not enter when the use to the wife was to begin upon the intermarriage and then if the Entry of the Feoffees in such case should be requisite the use limited to the wife by the Act of the Feoffor should be destroyed against his own limitation which is strong against the meaning of the Act aforesaid for by the said act the Land is credited with the said use which shall never fail in the performance of it And such contingent estates in Remainder may be limited in possession a Fortiori in use which see 4. E. 6. Coithirsts case 23. And Plesingtons case 6 R. 2. And it is true at the common Law the Entry of the Feoffees was requisite because the wrong was done unto them by reason of the possession which they then had but now by the Statute all is drawn out of them and then there is no reason that they medle with the Lands wherein they have now nothing to do and the scope of the Statute is utterly to disable the Feoffees to do any thing in prejudice of the uses limited so as the Feoffees are not to any purpose but as a Pipe to convey the Lands to others So as they cannot by their Release or confirmation c. bind the uses which are to grow and arise by the limitation knit unto the Feoffment made unto them which see Br. 30. 30 H. 8. Feoffments to uses 50 A. covenants with B. That when A. shall be enfeoffed by B. of three Acres of Lands in D. that then the said A. and his Heirs shall be seised of Land of the said A. in S. to the use of B. and his Heirs and afterwards A. enfeoffeth a stranger of his Lands in S. And afterwards B. enfeoffeth A. of his Lands in D. now the Feoffee of A. shall be seised to the use of B. notwithstanding that the said Feoffee had not notice of the use for Land is bound with the use in whose hands soever it come And see the like case ibid. 1. Ma. 59. Vpon the reason of which cases many assurances have been made for it is the common manner of Mortgage i. e. If the Mortgag or pay such a sum c. that then the Mortgagee and his Heirs shall be seised after such payment to the use of the Mortgagor and his Heirs In that case although that the Mortgagee alien yet upon the payment the use shall rise well enough out of the possession of the Alienee and the Lands shall be in the Mortgagor without any Entry For the Mortgages could not enter against his own alienation to revive the use which is to rise upon the payment and therefore without any assistance of such Entry it shall arise As at the Common Law Land is given to A. in tail the Remainder to the right heirs of B. A. levies a Fine makes a Feoffment suffers a Recovery c. although the same shall bind the Issues yet if B. dyeth and afterwards A. dyeth without issue now notwithstanding this Fine c. The right Heir of B. may enter And always a use shall spring out of the Land at his due opportunity and it is a collateral charge which binds the Lands by the first Liberty and cannot be discharged vi 49. Ass 8. 49 E. 3. 16. Isabell Goodcheapes case A man deviseth that his Executors shall sell his Lands and afterwards dyeth without heir so as the Land escheats to the King yet the authority given to the Executors shall bind the Lands in whose hands soever it comes c. And so a title of Entry continues notwithstanding twenty alienations But an use is a less thing than a Title of Entry especially an use in contingency and an use as long as it is in contingency cannot be forfeited As if the Mortgagor be attainted and pardoned mean betwixt the Mortgage and the day of Redemption c. Then when Thomas levies a Fine Francis may well enter And Thomas before the Fine had an estate tail executed to his Free-hold and therefore by the Fine he gave an estate of Inheritance to the Conusee and then no right of entail remained in Francis but he took an estate for life only and that as a Purchasor by the limitation of the Will and then when Francis levied a Fine his estate was gone which was but for life and then the right of the entail and all the other estates which are especially limited are also gone and so Percival Hart to whom no estate was specially limited hath not any cause to enter c. And it was further said by Wray Husband and Wife Tenants in special tail the Husband levies a Fine with Proclamations and dieth the Wife enters the issue in tail is
barred but if the Wife enter after the death of her Husband and before the Proclamations pass the issue is not bound by the Fine And if Tenant in Tail granteth totum statum and after levieth a Fine thereof with Proclamations come ceo c. The Issue is barred contrary where the Fine is upon a Release c. CCCXLVI Henningham and Windhams Case 18 Eliz. In the Kings Bench. ARthur Henningham brought a Writ of Error against Francis Windham upon a common Recovery had against Henry his Brother Error Owen Rep. 68. and the Case was That Land was given in special tail to Thomas Henningham Father of the said Henry and the said Arthur the Remainder in general tail the estate tail in possession was to him and the Heirs Mairs of his body Thomas had issue the said Henry and three Daughters by one woman and the said Arthur and two other Sons by another woman and dyed seised Henry entred and made a Feoffnent a common Recovery is had against the Feoffee in which Henry is vouched who vouched over the common Vouchee according to the usual course of common Recoveries Henry dyed without issue Error and Attaint by him to whom the Land is to descend and Arthur brought a Writ of Error being but of the half blood to Henry And it was resolved by the whole Court That Error and Attaint always descends to such person to whom the Land should descend If such Recovery or false oath had not been As if Lands be given to one and the Heirs Females of his body c. and suffers an erronious Recovery and dyeth the Heir female shall have the Writ of Error So upon Recovery of Lands in Borough English for such Action descends according to the Land quod fuit concessum per totam Curiam But it was objected on the Defendants part That because that the Feoffee being Tenant to the Praecipe is to recover in value a Fee-simple and so Henry is to yield a Fee-simple which should descend to the heir at the Common Law if this Recovery had not been therefore he to whom the same should descend should have the Writ of Error for he hath the loss But the said Exception was not allowed And it was said That Tenant in tail upon such a Recovery shall recover but an estate in tail scil such estate which he had at the time of the warranty made c. And afterwards Iudgment was given that the Action was maintainable So if a man hath Lands of the part of his mother and loseth it by erronious Iudgment and dyeth That the Heir of the part of the Mother shall have the Writ of Error CCCXLVII Foster and Pitfalls Case 18 Eliz. In the Kings Bench. IN Ejectione firmae the Case was 1 Cro. â— Brook devised Lands to his Wife in general Tail the Remainder over to a stranger in Fee and dyed he took another Husband and had issue a Daughter The Husband and Wife levyed a Fine to a stranger The Daughter as next Heir by 11 H. 7. entred It was agreed by the whole Court That an estate devised to the wife is within the words but not within the meaning of the Statute Secondly It was resolved That no estate is within the meaning of the Statute unless it be for the Ioynture of the Wife Thirdly Resolved That the meaning of the Statute was That the wife so preferred by the Husband should not prejudice the issues or heirs of her Husband and here nothing is left in the Issues or heirs of the Husband so as the Wife could not prejudice them for the Remainder is limited over CCCLXVIII Greenes Case 18 Eliz. In the Kings Bench. Acceptance of Rent 1 Cro. 3. 3 Co. 64. b. GReene made a Lease for years rendring Rent with clause of Re-entry and the Rent due at the Feast of the Annunciation was behind being demanded at the day which Rent the Lessor afterwards accepted and afterwards entred for the condition broken and his Entry holden lawful Entry Plow Com. in Browning and Bestons Case for the Rent was due before the condition broken but if the Lessor accepts the next Quarters Rent then he hath lost the benefit of Re-entry for thereby he admits the Lessee to be his Tenant And if the Lessor distrain for Rent due at the said Feast of the Annunciation after the forfeiture he cannot afterwards re-enter for the said forfeiture for by his Distress he hath affirmed the possession of the Lessee So if he make an Acquittance for the Rent as a Rent contrary if the Acquittance be but for a sum of mony and not expresly for the Rent all which tota Curia concessit CCCXLIX 20 Eliz. In the Common Pleas. THe Case was Lessee for life the Remainder for life the Remainder in tail the Remainder in fee The two Tenants for life make a Feoffment in fee. Dyer A woman Tenant for life in Ioynture the Remainder for life the Remainder in fee the Tenants for life joyn in a Feoffment Entry for Forfeiture the Entry of him in the Remainder in fee is lawful by 11 H. 7. And if Tenant for life be impleaded and he in the Remainder for life will not pray to be received he in the last Remainder may and so in our case inasmuch as he in the Remainder for life was party to the wrong he in the Remainder in tail shall enter Which Harper and Munson granted Dyer 339. a. i. e. Manwood Although that this Feoffment be not a Disseisin to him in the Remainder in tail yet it is a wrong in a high degree as by Littleton A Disseisor leaseth for life to A. who aliens in fee the Disseisee releaseth to the Alienee it is a good Release and the Disseisor shall not enter although the Alienation was to his disinheritance Lit. 111. which Dyer granted And if Tenant for life alieneth in fee and the Alienee enfeoffeth his Father and dieth the same descent shall not avail him no more than in case of Disseisin Livery of Seism It hath been objected that this is the Livery of the first Tenant for life and the confirmation of him in the Remainder for life Dyer was of opinion That by this Livery the Remainder for life passeth and this Livery shall be as well the Livery of him in the Remainder as of the Tenant in possession and although where an estate is made lawfully by many it shall be said the Livery of him only who lawfully may make Livery Yet where an estate is wrongfully made it shall be accounted in Law the Livery of all who joyn in it And in this the Remainder for life is extinguished by the Livery in the Feoffee and the Livery of him in the Remainder for life shall be holden a void Livery especially when he joyns with such a person who hath not authority to make Livery As if the Lord and a Stranger Disseise the Tenant and make a Feoffment over the whole Seigniory is
out of the pardon shall be intended and construed the bare Act of Conversion but the whole offence i. the continuance and practise of it is understood As if by general pardon all intrusions are excepted now by that the instant Act of Intrusion i. the bare Entry is not only excepted but also the continuance of the Intrusion and the perception of the profits And note The words of the Statute are conversion permitted and Conversion continued is Conversion permitted And the said Statute doth not punish the Conversion but also the continuance of the Conversion for the penalty is appointed for each year in which the Conversion continues And Egerton Solicitor put this Case 11 H. 8. It was enacted by 3 H. 7. cap. 11. That upon Recovery in Debt if the Defendant in delay of Execution sues a Writ of Error and the Iudgment be affirmed he shall pay damages now the case was That one in Execution brought such a Writ of Error and the first Iudgment is affirmed he shall pay damages and yet here is not any delay of the Execution for the Defendant was in Execution before but here is an Interruption of the Execution and the Statute did intend the Execution it self i. the continuance in Execution ibidem moraturus quousque It was said on the other side That the conversion and continuance thereof are two several things each by it self and so the conversion only being excepted in the pardon the continuance thereof remains in the grace of the pardon And it appeareth by the Statute of 2 and 3. Ph. Ma. That conversion and continuance are not the same but alia atque diversa and distinct things in the consideration of the Law for there it is enacted That if any person shall have any Lands to be holden in Tillage according to the said Statute but converted to Pasture by any other person the Commissioners c. have authority by the said Statute to enjoyn such persons to convert such Lands to Tillage again c. And in all cases in the Law there is a great difference betwixt the beginning of a wrong and the continuance of it As if the Father levyeth a Nusance in his own Lands to the offence of another and dyeth an Assize of Nusance doth not lye against the Heir for the continuance of that wrong but a Quod permittat See F.N.B. 124. It was adjorned CCCLXX Powley and Siers Case Mich. 26 Eliz. In the Kings Bench. POwley brought Debt against Sier Executor of the Will of A Debt The Defendant demanded Iudgment of the Writ for he said That one B. was Executor of the said A. and that the said B. did constitute the Defendant his Executor so the Writ ought to be brought against the Defendant as Executor of the Executor and not as immediate Executor to the said A. The Plaintiff by Reply said That the said B. before any probate of the Will or any Administration dyed and so maintained his Writ Wray Iustice was against the Writ for although here be not any probate of the Will of A. or any other Administration yet when B. made his Will and the Defendant his Executor the same is a good acceptance in Law of the Administration and Execution of the first Will for the Defendant might have an Action of Debt due to the first Testator Gawdy and Ayliff Iustices The Writ is good See Dyer 1 Cro. 211. 212. 23 Eliz. 372. against Wray CCCLXXI Pasch 26 Eliz. In the Kings Bench. THe Case was A seised of certain Lands Bargain and sale of Trees bargained and sold by Indenture all the Trees there growing Habendum succidendum exportandum within twenty years after the date of the said Indenture the twenty years expire The Bargainee cuts down the Trees A. brought an Action of Trespass for cutting down the Trees And by Wray Iustice The meer property of the Trees vests in the Bargainee Post 288. and the Limitation of time which cometh after is not to any purpose but to hasten the cutting of the Trees within a certain time within which if the Vendee doth not cut them he should be punished as a Trespassor as to the Land but not as to the Trees Gawdy contrary And that upon this Contract a conditional property vests in the Vendee which ought to be pursued according to the direction of the condition and because the condition is broken the property of the Trees is vested in A. CCCLXXII Curriton and Gadbarys Case Pasch 26 Eliz. In the Kings Bench. IN in Action upon the Case the Plaintiff declared Leases That the Defendant in consideration that the Plaintiff should make a lease for life to the Defendant of certain Lands Habendum after the death of A. before the tenth of August next following promised to pay the Plaintiff ten pounds the first day of May next after the promise which was before the tenth of August And the truth was That the said ten pounds was not paid at the day ut supra nor the said Lease made And now both sides being in default the Plaintiff brought an Action It was said by Wray Iustice If the Plaintiff had made the Lease according to the consideration and in performance thereof the action would have lyen but now his own default had barred him of the Action But for another cause the Declaration was holden insufficient for here is not any Consideration for the promise is in consideration that the Plaintiff shall lease to the Defendant for life Habendum after the death of A. which cannot be good by way of lease but ought to enure by way of grant of the Reversion so as here is no lease therefore no consideration and notwithstanding that if a Lease be made for life Habendum after the death of A. the Habendum is void and the Lease shall be in possession according to the Premises yet the Law will not give such construction to the words of a Promise Contract or Assumpsit but all the words ought to be wholly respected according to the Letter so as because that no Lease can be made according to the words of the Consideration no supply thereof shall be by any favorable construction And so it was adjudged But before the same imperfection was espied Iudgment was entred and therefore the Court awarded that there should be a cesset executio entred upon the Roll for it is hard as it was said by Wray to drive the party to a Writ of Error in Parliament because Parliaments are not now so frequently holden as they have used to be holden and the Execution was staid accordingly CCCLXXIII Willis and Crosbys Case Pasch 26 Eliz. In the Kings Bench. Error IN a Writ of Error It was assigned for Error That whereas in the first Action the parties were at issue and upon the Venire facias one Gâ—â—gory Tompson was returned But upon the Habeas Corpora George Tâ—â—â—â—son was returned and the Iury was taken and found for the
Litis contestationem the right of the Suit is so vested in the Proctor Swinburn 212. that he is a person suable until the end of the Suit and also he reported their Law to be * Bro. Devise 27. 45. Office of Exce 347. Shâ—p Touchstone c. 454. Plowd 345. Orphans Legacy 281. Note It was adjudged contrary to this Mich. An. Dom. 1653. in the Kings Bench. in Doâ—mlowes Case Poph. 11. That if a Legacy be bequeathed to an Infant to be paid when he shall come to the Age of twenty one years if such a Legatory dieth before such age yet the Executor or Administrator of such Legator shall sue for the said Legacy presently and shall not expect until the time in which if the Infant had continued in life he had attained his full age And as to the Prohibition it was argued by Egerton Solicitor General That the Grant aforesaid is not triable in the Spiritual Court As if the said Lady Lodge had suffered a Recovery to be had against her as Executor by Covin c. the same is not examinable in the Spiritual Court but belongs to the temporal Conusans and therefore he prayed a Prohibition But on the other side it was said That if the Prohibition be allowed the Legatory hath no remedy but that was denied for the party might sue in the Chancery And after the Prohibition granted the Court awarded a special Consultation quatenus non extendat ultra manus Executoris quatenus non agitur de validitate facti i. the Grant aforesaid CCCLXXVII Huddy and Fishers Case Hill. 28 Eliz. In the Kings Bench. Debt DEbt was brought upon a Bond the Condition of which was for the performance of Covenants Grants and Agreements in an Indenture And in the Indenture it was recited That in consideration that the said Huddy should build a Mill upon the Land demised by the Defendant to the Plaintiff by the same Indenture Attaint and a Water-course by the Land demised the Defendant leased the said Land to the Plaintiff and the Lease was by the words Dedi concessi And the Plaintiff assigned the breach of the said Covenant in Law in that the Defendant had stopped the said Water-course so made by the Plaintiff upon which they were at Issue and it was found for the Plaintiff upon which the Defendant brought Attaint and the false oath was found and it was moved in Arrest of Iudgment That here is no Issue and then by consequence no Verdict and then no false Oath and then no cause of Attaint for here the Issue is taken upon the stopping of the Water-course which upon the shewing of the party is not any cause of Action for in the Indenture there is not any express Covenant Clause or Agreement that the Lessee should enjoy the Water-course so to be made only there is a Covenant in Law rising upon these words Dedi concessi which cannot extend to a thing not in esse at the time of the making the Indenture Coke who argued for the Defendants in the Attaint resembled this case to the case in 23 E. 3. Garr 77. Where it is holden that the warranty knit to the Manor shall not extend to the Tenancy escheated And 30 E. 3. 14. The Recovery in value shall not be in larger proportion than the Land warranted was at the time of the warranty made So in our case this Covenant shall not extend to any thing which was not in esse at the time of the Covenant made And see 25 Ass 2. where the Court shall reject a Verdict or part of a Verdict c. And because the now Plaintiff might after the Verdict have alledged the same in arrest of Iudgment which he did not he shall not be helped by Attaint but it shall be accounted his folly that he would not for his own ease and to avoid circuity of Action shew the matter in stay of Iudgment As 9 E. 4. 12. by Littleton If a man be Indicted of Felony if the Iudgment be insufficient but he takes not advantage of it but pleads the general Issue and is acquitted he shall never after have a Writ of Conspiracy c. And for another cause Iudgment ought not to be given in this Case because it doth not appear that Execution hath been sued and then here is no party grieved And then this Action being conceived upon the Statute of 23 H. 8. Cap. 3. which gives it to the party grieved doth not lye for a party grieved cannot be intended without Execution sued See 21 H. 6. 55. by Paston False oath Iudgment and Execution do entitle the party grieved to Attaint And see the Stat. of 23 H. 8. which enacts That the party shall be restored to as much as he hath lost therefore he ought to lose by Execution before he be a person able 〈◊〉 bring this Action But as to that matter see the Statute of 1 E. 3. 6. by which it is Enacted That the Iustices shall not leave to take Attaint for the damages not paid so as before the said Statute no Attaint lay before Execution 33 H. 6. 21. by Prisoit 5 H. 7. 22. t. E. 1. Attaint 70. 8 E. 2. Assize 396. And it was moved That for another cause the Attaint doth not lye as it is pursued in Process upon it for the Plaintiff hath not pursued the Statute upon which the Attaint is grounded for the said Statute gives special Process in this case against the Petit Iury Grand Iury and the party viz. Summons Re-summons and Distress infinite but in this Case the Plaintiff hath sued otherwise which is against the direction of the Statute And that was taken to be a material Exception by Clench and Gawdy Iustices for the Verdict doth not save the matter of Process in this case by the Statute of 18 Eliz. which doth not extend to proceedings in penal Causes wâ—â—ch see by the words of the Statute by an express Proviso But Quaere If it be a penal Statute because a lesser punishment is enacted by it than that which was before inflicted upon such offenders And as to the matter of Execution Quaere If the Plaintiff be not pars gravata in hoc only that he is subject to the said Iudgment and so liable to Execution CCCLXXVIII Penruddock and Newmans Case Hill. 28 Eliz. In the Kings Bench. IN an Ejectione firmae Execution 2 Len. 49. the Plaintiff declared upon a Lease made by the Lord Morley and upon Not guilty pleaded this special matter was found that William Lord Mountegle seised of the Manor of D. whereof c. became bounden in a Statute in such a sum to A. who died the Executors of A. sued Execution against the said Lord i. upon the Extendi facias a Libertate issued forth upon which the said Manor was delivered to the said Executors but was not returned It was further found That the said Executors being so possessed of the said Manor the said Lord
b. Sur Conusans de droit come ceo que il ad of the gift of the Husband that the same is not any Bar to the Wife of her Dower for the Election is not given to the VVife to claim her Ioynture or her Dower until after the Death of her Husband And so in the principal case Iudgment was given for the VVife CCCLXXXVII Le es Case Pasch 26. Eliz. In the Kings Bench. NIcholas Lee by his will devised his Lands to William his second Son Devise 1 Cro. 26. 3 Len. 106. And if he depart this VVorld not having issue Then I will that my Sons in Law shall sell my Lands the Devisor at the time of his devise having sir Sons in Law dyed William had Issue John and dyed John dyed without Issue one of the Sons in Law of the Devisor dyed the five surviving Sons in Law sold the Lands First it was clearly resolved by the whole Court That although the words of the Will are ut supra If William my Son depart this world not having Issue c. And that William had Issue who dyed without Issue here although it cannot be litterally said That William did depart this World not having issue yet the intent of the Devisor is not to be restrained to the letter that such construction shall be made That whensoever William dyeth in Law or upon the matter without Issue that the Land shall be subject to sale according to the authority committed by the Devisor to his Sons in Law And now upon the matter William is dead without Issue As in a Formedon in Reverter or Remainder although that the Donee in tail hath issue yet if after the estate tail be spent the Writ shall suppose that the Donee dyed without Issue a fortiori in the Case of a Will or Devise such construction shall be made As to the other point concerning the sale of the Lands Wray asked If the Sons in Law were named in the Will and the Clerks answered No See 30 H. 8. Br. Devise 31. and 39 Ass 17. Executors 117. such a sale good in case of Executors See also 23 Eliz. Dyer 371. and Dyer 4 5. Phil. and Mary Lands devised in tail and if the Devisee shall dye without Issue that then the Land shall be sold pro optimo valore by his Executors una cum assensu A. if A. dyeth before sale the power of the Executors is determined And afterwards it was clearly resolved by the whole Court That the sale for the manner was good and Iudgment was given accordingly CCCLXXXVIII Sir Gilbert Gerrard and Sherringtons Case Pasch 20 Eliz. In the Kings Bench. SIr Gilbert Gerrard Master of the Rolls Libelled in the Spiritual Court against Sherrington and A. his Servant for Tithes parcel of a Rectory whereof the said Sir Gilbert was Fermor to the Queen It was moved by Egerton Solicitor General That against the Kings Fermor a Prohibition doth not lye But the opinion of the whole Court was That a Prohibition doth lye and so it hath been adjudged before And afterwards Exception was taken to the surmise because the said Sir Gilbert had Libelled against the said Sherrington and his Servant severally Owen Rep. 13. Yelv. Rep. 128. and now in the Kings Bench they both had made a joynt surmise whereas they ought to have severed in their surmises according to the several Libels And it was so adjudged by the Court and therefore they were driven to make several surmises And afterwards Exception was taken because the said Sherrington and his Servant had delivered their surmises and suggestions by Attorney where they ought to be in proper person See the Statute of 2 E. 6. cap. 13. The party shall bring and deliver to the hands of some of the Iustices of the same Court c. the true Copy of the Libel c. subscribed or marked with the hand of the Party c. and under the Copy shall be written the surmise or suggestion And although it was affirmed by the Clerks of the Court that the common use and practice for twenty years had been not to exhibit such surmises or suggestions by Attorney Yet it was resolved by the whole Court that it ought to be by Attorney CCCLXXXIX Short and Shorts Case Pasch 26. Eliz. In the Kings Bench. IN an Action upon the Case upon Assumpsit to pay mony to the Plaintiff upon Request It was agreed Request That the Plaintiff by way of Declaration ought to alledge an actual Request and at what place and at what day the Request was made And it is not sufficient to say as in an Action of Debt Licet saepius requisitus c. and so it was adjudged CCCXC Pasch 26. Eliz. In the Kings Bench. ONe was Endicted in the County of Linc upon the Statutes of Wâ—st Indictment upon the Statute of news 1. Cap. 33. and 2 R. 2. Cap. 5. of News and the words were That Campian was not executed for treason but for Religion and that he was as honest a man as Cranmer the Bill was endorsed Billa vera but whether ista verba prolata fuerunt malitlose seditiose or e contr ignoramus The same Indictment being removed into the Kings Bench the party for the causes aforesaid was discharged CCCXCI Cole and Friendships Case Pasch 26. Eliz. In the Kings Bench. IN Ejectione firmae the Case was That Fricarrooâ— was seised Leases 4 Len. 64. and by Indenture betwixt himself of the one part and one Friendship his Wife and the Children betwixt them begotten at the Assignment of the Husband of the other part leased the said Land to the said Husband his Wife and their Children at the Assignment of the Husband for years they having at the time of the said Lease but one Child â— a Son Assignment afterwards they had many Children the wife dyed the Husband by his will assigned his second Son born after the making of the Lease to have the residue of the said Term and by the opinion of the Court nothing can come to the said Son by that Lease or by that assignment for if the Interest doth not vest at the beginning it shall never vest And afterwards is was moved In as much as nothing could vest in any of the Children born after the Lease made if these words At the Assignment of the Husband should be void and then the case should be no more but that Land is devised to the Father and Mother and their Children At another day viz. Trin. 26 Eliz. the case was moved again and as to the first Point the Court was of opinion as before That the Child assigned after the Lease made should not take And then it was moved That because Friendship and his Wife at the time of the making of the said Lease had one Son that he should take with his Father and Mother and that the words at the Assignment of Friendship should be void is matter of surplusage and the
Recovery against Massey Error And in the said Recovery four Husbands and their VVives were vouched and now the Plaintiff brought this Writ of Error as heir to one of the Husbands and Exception was taken to his Writ because the Plaintiff doth not make himself heir to the Survivor of the four Husbands Egerton The Writ is good enough for there is a difference betwixt a Covenant personal and a Covenant real for if two be bound to warranty and the one dyeth the Survivor and the heir of the other shall be vouched and he said each of the four and their heirs are charged and then the heir of each of them being chargeable the heir of any of them may have a Writ of Error And afterwards the Writ of Error was adjudged good Ante 86. And Error was assigned because the Vouchees appeared the same day that they were vouched by Attorney which they ought not to do by Law but they might appear gratis the first day without Proces in their proper persons and so at the sequatur sub suo periculo See 13 E. 3. Attorn 74. and 8 E. 2. ib. 101. Another Error was assigned Because the Entry of the warrant of Attorney for one of the Vouchees is po lo. suo I.D. against the Tenant where it should be against the Demandant for presently when the Vouchee entreth into the warranty he is Tenant in Law to the Demandant Coke As to the first Error Although he cannot appear by Attorney yet when the Court hath admitted his appearance by Attorney the same is well enough and is not Error As to the other Error I confess it to be Error but we hope that the Court will have great consideration of this case as to that Error for there are one hundred Recoveries erronious in this point if it may be called an Error And then we hope to avoid such a general mischief that the Court will consider and dispense with the rigor of the Law As their Predecessors did 39 H. 6. 30. In the Writ of Mesne But I conceive That the Writ of Error is not well brought for the Voucher in the said Recovery is of four Husbands and their Wives and when Voucher shall be intended to be in the right of their Wives which see 20 H. 7. 1. b. 46 E. 3. 28. 29 E. 3. 49. And so by common intendment the Voucher shall be construed in respect of the Wife So also the Plaintiff here ought to entitle himself to this Writ of Error as heir to the Wife And for this cause The Plaintiff relinquished his VVrit of Error And afterwards he brought a new VVrit and entituled himself as heir to the wife CCCXCIX The Queen and the Dean of Christchurch Case Mich. 26 27 Eliz. In the Kings Bench. Praemunire 3 Len. 139. THe Queens Attorney General brought and prosecuted a Praemunire for the Queen and Parret against Doctor Matthew Dean of Christ-church in Oxford and others because they did procure the said Parret to be sued in the City of Oxford before the Commissary there in an Action of Trespass by Libel according to the Ecclesiastical Law in which suit Parret pleaded Son Franktenement and so to the Iurisdiction of the Court and yet they did proceed and Parret was condemned and imprisoned And after that suit depended The Queens Attorney withdrew the suit for the Queen And it was moved If notwithstanding that the party grieved might proceed See 7 E. 4. 2. b. The King shall have Praemuire and the party grieved his Action See Br. Praemunire 13. And by Brook none can have Praemunire but the King Coke There is a President in the Book of Entries 427. In a Praemunire the words are ad respondendum tam Domino Regi quam R.F. and that upon the Statute of 16 R. 2. and ib. 428 429. Ad respondendum tam Domino Regi de contemptu quam dict A. B. de damnis But it was holden by the whole Court That if the Kings Attorney will not further prosecute the party grieved cannot maintain this suit for the principal matter in the Praemunire is The conviction and the putting of the party out of the protection of the King and the damages are but accessary and then the principal being released the damages are gone And also it was holden by the Court That the Presidents in the Book of Entries are not to be regarded and there is not any Iudgment upon any of the pleadings there but are good directions for pleadings and not otherwise CCCC Mich. 26 27. Eliz. In the Kings Bench. Fines levied 1 Cro. 35. THe Case was A. gave Lands in tail to B. upon condition That if the Donee or any of his heirs alien or discontinue c. the Land or any part of it that then the Donor do re-enter The Donee hath issue two Daughters and dieth One of the two Daughters levieth a Fine Sur Conusans de droit come ceo Forfeiture to her Sister Heale Serjeant the Donor may enter for although the Sisters to many intents are but one Heir yet in truth they are several Heirs and each of them shall sue Livery 17 E. 3. If one of the Sisters be discharged by the Lord the Lord shall lose the Wardship of her and yet the Heir is not discharged And if every Sister be heir to diverse respects then the Fine by the one Sister is a cause of Forfeiture Harris contrary For conditions which go in defeating of estates shall be taken shortly Conditions and here both the Sisters are one Heir and therefore the discontinuance by the one is not the Act of the other Clench Iustice The words are Or any of his heirs therefore it is a forfeiture quod fuit concessum per totam Curiam And Iudgment was given accordingly CCCCI Mich. 26 27 Eliz. In the Kings Bench. THe Case was Assumpsit Hutt Rep. 34. Hob. 284. A Woman seised of a Rent-charge for life took Husband the Rent was arrear the wife died the Tenant of the Land charged promised to pay the Rent in consideration that the Rent was behind c and some were of opinion Because that this Rent is due and payable by a Deed that this Action of the Case upon Assumpsit will not lye no more than if the Obligor will promise to the Obligee to pay the mony due by the Obligation 3 Cro. 5. an Action doth not lye upon the Promise but upon the Obligation But it was holden by the whole Court That the Action did well lye for here the Husband had remedy by the Statute of 32 H. 8. And then the consideration is sufficient and so Iudgment was given for the Plaintiff CCCCII. Williams and Blowers Case Hill. 27 Eliz. In the Kings Bench. REignold Williams and John Powell brought a Writ of Error against the Bishop of Hereford and Blower Error upon a Recovery had in a Writ of Disceit by the said Bishop and Blower against the said
Southcotes case Southcotes case So a Title of Cessavit in the Feoffees shall be executed by the Statute So if the King grants to the Feoffees in use a Fair Market or Warren these things shall be executed by the Statute Clerentius case as it was holden in the Case of Clarentius As to the Condition they conceived That it is broken for where the Devisor had allowed to the Devisee to discontinue for life to make a Ioynture to his Wife now he hath exceeded his allowance for he might have made a Ioynture to his wife indefeisable by Fine upon a Grant upon a Render for life c. But this Fine with the Proclamations is a Bar to the former entail which was created by the Devise and hath created a new entail and the former tail was barred by the Fine against the intent of the Devisor Also by this Fine he hath created a new Remainder so as his Issue inheritable to his new entail might alien and be unpunished which was against the meaning of the Devisor And as to the Lease for lives to the Defendants the same is not any breach of the Condition for that is warranted by the Statute of 32 H. 8. which enables Tenant in tail to make such a Lease so as it cannot be said Discontinuance which Anderson and Periam granted But the Fine levied after is a breach of the Condition and then the Re-entry upon the Lessees who have their estates under the Condition is lawful As where the wife of the Feoffee upon Condition is endowed and afterwards the Condition is broken now by the Re-entry of the Feoffor the Dower is defeated And Shutleworth put this case A Feoffment is made upon Condition that the Feoffee shall lease the Lands to A. for life and afterwards grant the Reversion to B. in Fee the Feoffor may re-enter for by this Conveyance he in the Reversion is immediate Tenant to the Lord where by the intended assurance the particular Tenant ought to be Puckering Fenner and Walmesley contrary And by Walmesley By this devise the use only passeth and not the Land it self for the Statute of 1 R. 3. extends only to Acts executed in the life of Cestuy que use and not to devises which are not executed till after the death of the Devisor which see 4 Ma. Dyer 143. Trivilians case See also 6 E. 6. Dyer 74. The Lord Bourchiers case but 10 H. 7. Cestuy que use deviseth That his Executors shall sell the Land now by the sale of the Land in possession for the same is in a manner an Act in his life for the Vendee is in by Cestuy que use and here is a Condition and not a Limitation for the nature of a Condition is to draw back the estate to the Feoffor Donor or Lessor but a Limitation carrieth the estate further And he conceived That the Condition is not broken by this Act for the intent of the Devisor is pursued for his meaning was That the wife should have a Ioynture indefeisable against the issue in tail and that the inheritance should be preserved that both should be observed And he said that this Fine being levied by him in the Reversion upon an estate for life is not any discontinuance but yet shall bar the estate Tail. And the Iustices were clear of opinion that the Condition is broken and also that the intent of the Condition is broken for it might be that Charles had issue by a former wife which by this Fine should be disinherited and a new Entail set on foot against the meaning of the Devisor c. and afterwards Iudgment was given for the Plaintiff CCCCX Simmes and Wescots Case Hill. 31 Eliz. Rot. 355. In the Kings Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 147. That in consideration that he would marry the Defendants Daughter the Defendant promised to give him 20 l. and also to procure him all the Corn growing upon such Lands and to provide necessaries for the wedding dinner the Defendant did confess the communication betwixt them and that he promised to give the Plaintiff 20 l. so as he would procure a Lease of certain Lands to his Daughter for her life absque hoc that he promised modo forma The Iury found the promise of the 20 l. but not any other thing it was moved in arrest of Iudgment that the Assumpsit whereof the Plaintiff hath declared although it consist of divers things yet it is entire and if the whole is not found nothing is found and the Case of 21 E. 4. 22. was cited touching variance of Contract as where an Action of Debt is brought upon a Contract of a Horse and the Iury found a Contract for two Horses the Plaintiff shall never have Iudgment On the other side it was said That the Plaintiff shall recouer damages for the whole that is found i. for the 20 l. See 32 H. 8. Br. Issue 90. In an Action upon the Case the Plaintiff declared that the Defendant did promise to deliver four Woollen-cloaths the Defendant pleaded That he did promise to deliver four Linnen-cloaths absque hoc that he promised c. the Iury found That the Defendant did promise to deliver two Woollen-cloaths and the Plaintiff did recover damages for the two So in Wast the Wast is assigned in succidendo 20 Oaks upon which they are at Issue the Iury find but ten Oaks the Plaintiff shall have Iudgment for so much and shall be amerced for the residue Gawdy Iustice Here are several Assumpstis in Law as Br. 5. Ma. Action sur le Case 108. a man in consideration of a Marriage assumes to pay 20 l. per Annum for four years two years incur the party brings an Action upon the Case for the arrearages of the two years Wray In an Action upon the Case the Plaintiff ought not to vary from his Case as if a promise be grounded upon two considerations Ragula and in an action upon it the Plaintiff declares upon one only he shall never have Iudgment and here the Iury have not found the same promise Clench If promise be made to deliver a Horse and a Cow and the Horse is delivered but not the Cow the party shall have an Action for the Cow but he shall declare upon the whole matter and afterwards Iudgment was given quod querens nihil capiat per billam CCCCXI Stile and Millers Case Trin. 31 Eliz. In the Kings Bench. Tithes 1 Cro. 161 578. 11 Co 13. A Parson Leased all his Glebe Lands for years with all the profits and commodities rendring 13 s. 4 d. pro omnibus exaction ibus demandis and afterwards libelled in the Spiritual Court against his Lessees for the Tithes thereof the Lessee obtained a Prohibition See 32 H. 8. Br. Dis 17. 8 E. 2. Avowry 212. Wray Tithes are not things issuing out of Lands nor any secular duty but spiritual and if the Parson doth release to
his Parishioner all demands in his Lands his Tithes thereby are not extinct and afterwards a Consultation was granted CCCCXII Lee and Curetons Case Trin. 31 Eliz. Rot. 902. In the Kings Bench. Debt 1 Cro. 153. IN Debt upon an Obligation the Defendant pleaded Non est factum and it was found for the Plaintiff and Iudgment given and afterwards the Defendant brought Error and assigned for Error that the Declaration was per scriptum suum obligat Error without saying hic in Guria prolat to which it was answered by Coke that the same was but matter of form for which a Iudgment ought not to be reversed for that the Clark ought to put in without instruction of the party and so it was holden in a case betwixt Barras and King 1 Cro. 768. 778. 3 Cro. 22. M. 29 30 Eliz. Another Error was assigned because the Iudgment is entred de fine nihil quia perdonat where it should be quod capiatur although the Plea were pleaded after the General pardon and for that cause the Iudgment was reversed for if the pardon be not specially pleaded the Court cannot take notice of it as it was holden in Serjeant Harris Case CCCCXIII Lacy and Fishers Case Trin. 31 Eliz. In the Kings Bench. IN a Replevin the taking is supposed in S. which Land is holden of the Manor of Esthall the Defendant made Conusans as Bailiff of the Lord of the Manor aforesaid and issue was taken upon the Tenure Trial. and it was tryed by a Iury out of the Visne of Esthall only Tanfield The trial is good for the issue ought not to have been tried by both Visnes S. and Esthall for two things are in issue If it be holden or not 2. If it be holden of the Manor of Esthall for which cause the Visne ought to be from both places and the opinion of the Court was That for the manner of it it was not good as if an issue be joyned upon common for cause of vicinage it shall be tried by both Towns See 39 H. 6. 31. by Littleton and Danby and the case in 21 E. 3. 12. was cited in a per quae servitia the Mannor was in one county and the Lands holden in another county the Tenant pleaded that he did not hold of the Conusor and that he was tried by a Iury of the County where the Land was See 2 H. 4. Gawdy denied the Book cited of 21 E. 3. to be Law and the reason wherefore the Visne shall come from both places is because it is most likely that both the Visnes may better know the truth of the matter than the one only Another Exception was taken Exposition of Stat. 21. H. 8. cap. 19. because the Conusans as it seems is made according to the Statute of 21 H. 8. 19. and yet the party doth not pursue the said Statute through the whole Conusans for by the Statute in Avowry or Conusans the party needs not to name any person certain to be Tenant to the Land c. nor to make Avowty or Conusans upon any person certain and now in this Conusans he hath not made Conusance upon any person certain but yet he hath named a person certain to be Tenant c. and in as much as this Conusans is not made either according to the Common-Law or according to the Statute it cannot be good But that Exception was dissallowed by the Court for if the Statute remedieth two things it remedieth one and the Conusance made in form as above was well enough by the opinion of the whole Court. CCCCXIV Diersly and Nevels Case Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass the Defendant pleaded Not-guilty 2 Roll. 682. and if he might give in evidence That at the time of the Trespass the Freehold was to such an one and he as his servant and by his Commandment entred was the question and it was said by Coke That the same might so be well enough and so it was adjudged in Trivilians Case for if he by whose commandment he entreth hath Right at the same instant that the Defendant entreth the Right is in the other by reason whereof he is not guilty as to the Defendant and Iudgment was given accordingly CCCCXV. Savage and Knights Case Mich. 29 and 30 Eliz. Rot. 546. In the Kings Bench. Error Ante 185. 1 Cro. 106. 2 Cro. 109. 654. Sty 91. Yelv. 164. Sty 115. A Writ of Error was brought upon a Iudgment given in Leicester in Debt Tanfield assigned for Error because in that suit there was not any Plaint for in all inferior Courts the Plaint is as the Original at the Common Law and without that no Process can issue and here upon this Record nothing is entred but only that the Defendant summonitus fuit c. and the first Entrie ought to be A. B. queritur versus C c. Clench Iustice a Plaint ought to be entred before Process issueth forth and this Summons which is entred here is not any Plaint and for that Cause the Iudgment was reversed CCCCXVI Rawlins Case Trin. 31. Eliz. In the Kings Bench. IN Trespass for breaking his Close by Rawlins with a continuando It was moved by Coke that the Plaintiff needed not to shew a Regress to have Damages for the continuance of the first Entry scil for the mean profits and that appears by common experience at this day Gawdy Iustice whatsoever the experience be I well know that our books are contrary and that without an Entry he shall not have damages for the continuance if not in case where the Term or estate of the Plaintiff in the Land be determined and to such opinion of Gawdy the whole Court did incline but they did not resolve the point because a Regress was proved See 20 H. 6. 15. 38 H. 6. 27. CCCCXVII Harris and Bakers Case Trin. 31. Eliz. In the Kings Bench. Accompt Damages 3 Len. 192. Collet and Andrews Case 2 Len. 118. 3 Len 149. IN an accompt damages were given by the Iury and it was moved that damages ought not to have been given by way of damages but the damages of the Plaintiff shall be considered by way of Arrearages but see the Case H. 29 Eliz. in the Common Pleas betwixt Collet and Andrews and see 10 H. 6 18. In Accompt the Plaintiff shall count to his damage but shall not recover damages vide 2. H. 7. 13. 21 H. 6. 26. The Plaintiff shall not recover damages expresly but the Court shall adâ— quoddam incromentum to the Arrearages Coke It hath been adjudged that the Plaintiff shall recover damages ratione implicationis non Retentionis CCCCXVIII Mich. 26. Eliz. In the Kings Bench. THe words of the Statute 32 H. 8. cap. 37. of Rents are that the Executor of a Grantee of a Rent-charge may distrain for the arrearages of the said Rent incurred in the life of the Testator so long as the Land charged doth continue in
Defendant did demur in Law it was holden by the whole Court that the Replication was good for the Award as to the second point was meerly void as if no such Award at all had been because A. was a stranger to the Award and the submission 1 Cro. 4. but as to the point of the 100 l. the same is good and shall bind the parties and the Plaintiff had Iudgment to recover vide 21 E. 475. 18 E. 4. 22 23. CCCCXXV Fabian and Windsors Case Mich. 31 and 32. Eliz. Rot. 814. In the Common Pleas. IN Trespass for entring into his house or Inn at Uxbridge Leases 1 Cro. 209. it was found by special verdict That the Plaintiff leased to the Defendant the said house for seven years rendring Rent at the Feasts of the Annunciation of our Lady and Saint Michael c. with condition that if the said Rent shall be behind by the space of ten days c. that it shall be lawful to the Lessor to re-enter And afterward at the Feast of the Annunciation 31 Eliz. the Rent was behind and the tenth day after the Lessor came to the said House a quarter of an hour before the sun setting and demanded the rent in these words I demand three pound ten shillings for a half years rent of this House now due and there continued till the Sun was set but no Rent was paid But note that the Issue was If he came to the House half an hour before Sun set and there continued demanding the half years Rent of the Premises due at the Feast of the Annunciation of our Lady then last past It was moved by Fenner That upon this Verdict the Issue is not found for the Plaintiff i. the Issue was upon the half hour and the quarter part of the hour was found 2. the Issue was If the demand were of the Rent due at the Feast of the Annunciation passed and the Verdict is for Rent due at the time of the demand c. And it was the opinion of Anderson Periam and Walmesley Demand of Rent That as to the first point the Verdict was good enough for the Plaintiff Windham contrary But it was agreed by them all That if in demand of Rent ut supra the Lessor or any on his part doth demand one penny more or less than is due or in his demand doth not shew the certainty of the Rent and the day of payment of it and when it was due the demand is not good Conditions taken strictly for a condition which goes in defeazance of an estate is odious in Law and no re-entry in such Case shall be given unless the demand be precisely and strictly followed CCCCXXV Elmes and Meldcalfes Case Mich. 32. Eliz. In the Common Pleas. IT was holden for Law by the whole Court 1 Cro. 189. That if one of the witnesses after the Iury are departed from the Bar doth repeat unto the Iury the same Evidence which he gave before and no more That that doth make the Verdict to be void CCCCXXVII Carter and Claycoles Case Mich. 32 33 Eliz. In the Common Pleas. Leases More 593. 4 Co 76. IN Ejectione firmae by Carter against Claycole the Plaintiff declared upon a Lease made by the Wardens and Fellows of All-souls Colledge 1. July 10 Eliz. And it was found by special Verdict That Overden Warden of the said Colledge and the Fellows c. leased unto the Plaintiff To have and to hold from the Feast of the Annunciation next following to the end of twenty years and made a letter of Attorney to one to enter into the said Manor and to seal and deliver the Deed of the said Lease in their names to the Plaintiff who by force thereof entred into part of the demised Premises and there did seal and deliver the same c. But it was not found that any rent was reserved thereupon And if this Lease were gooâ— Then the Iury found for the Plaintiff but if not then for the Defendant Cooper Serjeant It hath been objected That this Lease being but for twenty years is not warranted by the Statute of 13 Eliz. Cap. 10. For the words of the Statute are Other than for the term of 21 years 5 Cr. 6. as to that It was not the intent of the Statute but only to abridge the great and long Leases heretofore made by Colledges and to limit such Leases to a certain measure of time ut supra for twenty one years or three lives non ultra but on this side as much as they would which was granted by the whole Court Another matter was because it is not found That the due rent was reserved upon the said Lease accustomed yearly rent or more and yet the same is good enough 1 Cro. 707. 708. Post 333. for if the other party will take advantage of such defect he ought to shew the same otherwise it shall be intended because it is found that such Lease was made that it was made according to the Statute For if a man is to make title to himself by a conditional Lease he is not to plead the condition but only the Lease and if the other party will defeat the Lease by the Condition he shall shew the same And in this Case The Defendant also ought to have shewed the Statute by which such defective Leases are made void Also it hath been objected That by the Statute of 18 Eliz. the third part of the Rent ought to be reserved in Corn and here is not found any Corn as to that It is to be considered that the said Statute is not a general Law Special Statutes ought to be pleaded whereof the Iudges are bounden to take notice but it ought to be pleaded for it extends but to four places viz. Cambridge Oxford Winchester and Eaton and therefore such a Statute ought to be pleaded or given in Evidence and found by Verdict As where a man pleads a general pardon in which divers persons are excepted he ought to plead it specially and shew that he is not any of the persons excepted 8 E. 4. 7. 28 H. 7. So special customs ought to be pleaded Gavelkind Borough-English 21 E. 4. 55. 36. The King grants to the Citizens of Norwich c. And afterwards by Act of Parliament all their Liberties c. are confirmed by a general confirmation to all Cities and Boroughs this is a special Act and ought to be pleaded by Brian 59 13 E. 4. 8. The Lord Saies case an Act of Parliament That all Corporations made by the King H. 6. shall be void is a special Act and ought to be pleaded And see 28 H. 8. 27. 28. Dyer If the Statute of 21 H. 8. cap. 13. Of Lands taken to Form by Ecclesiastical persons be a special Law Yelverton contrary The Statute of 13 Eliz. is a special Law and ought to be pleaded but the Statute of 13 Eliz. is now a general Law which see Hollands
case 39 Eliz. and Damports case 45 Eliz. And this Act of 13 Eliz. is general in respect of time for it extendeth to all time after from henceforth and to all persons to whom such Leases shall be made the words the Statute are scil To any person or persons in respect of persons who shall lease all spiritual persons General in respect of the end which is the maintenance of learning which extends to the common profit c. Drew Serjeant That this act of 13 Eliz is general in respect of restraint only and extends only to spiritual persons and therefore ought to be pleaded for otherwise the Court shall not take notice of it As the Statute of 23 H. 6. of Sheriffs ought to be pleaded which see in the Case of Dive and Manningham Plowden 64 65. Co. 1 Inst 45. And although the Statute ought to be pleaded Yet this Lease is not void against the Warden who made it but against his Successor although no rent be reserved upon it notwithstanding that the perclose of the Statute be utterly void and of none effect to all intents constructions and purposes So upon the Statute of 1 Eliz. concerning Leases made by Bishops the Law had been so taken in the case of the Bishop of Coventry and Lichfeild upon a Grant of the next Avoidance That although it doth not bind the Successors yet it shall bind the Grantor himself So here this Lease being made by the present Warden and Fellows of the Colledge aforesaid although it be not sufficient to bind the Successor yet it shall bind the Warden who made the Lease Puckering contrary And as to the case of 13 E. 4. 8. the reason there is because there is an Exception in the said Statute of divers Grants made by King H. 6. and therefore the said Act ought to be specially pleaded And see 34 H. 6. 34. by Prisoit But in this Act of 13 Eliz. there is not any Exception and although it be a general Act with a Restraint yet such an Act ought not to be pleaded and therefore 27 H. 8. 23. in an Action upon the Statute of 21 H. 8. for taking of Lands to Ferm by spiritual persons he need not make mention of the Statute And afterwards the Iustices did advise upon this point whether the Lease be so void that it be void against a stranger So as the Defendant who doth not claim under the Colledge and who hath no title to the Land may avoid it And Periam Iustice denied the Case put by Puckering A. morgages Lands to B. upon a usurious contract for one hundred pounds and before the day of payment B. is ousted by C. against whom B. brings an Action C. cannot plead the Statute of Vsury for he hath no title For the estate is void against the Mortgagor Another Exception was taken to the Declaration because the Plaintiff had declared upon a Lease by the Warden and Fellows without naming any name of the Warden 13 E. 4. 8. 18 E. 4. 8. In Trespass the Defendant doth justifie because that the Free-hold was in the Dean and Chapter and he as Servant and by their commandment entred And Exception was taken to that Plea because he hath not shewed the name of the Dean scil the proper name So if a Lease be made by Dean and Chapter in these words Nos Decan Capituli the same Lease is void which was granted by the Court and 12 H. 4251. A Provost granted an Annuity by the name of Provost of such a Colledge without any name of Baptism and afterwards the Grantee brought a Writ of Annuity against the Successor of the said Provost and by Hull The Writ is well enough but the Christian name ought to be set down in the Writ So here because that the name of Baptism of the Warden is not in the Declaration the same is not good But the opinion of the whole Court was That the Declaration is good enough and they did rely especially upon the Book of 21 E 4. 15 16. Where Debt is brought by the Dean and Chapter without any Christian name and the Writ holden good Anderson It stands with reason That for as much as the Colledge was incorporated by the name of Warden and Fellows and not by any Christian name that they may purchase and lease by such name without any Christian name and may be impleaded and implead others by such name and as the Fellows in such case need not to be named by their Christian names no more ought the Warden But of a Parson Vicar Chauntry Priest it is otherwise for in such case the name of Baptism ought to be added It was also objected That because the Letter of Attorney was to enter in the Manor and all the Lands and Tenements of the Colledge in such a Town and to seal the Indenture of Lease in the name of the Lessors and to deliver it to the Plaintiff as their Deed now the Attorney in executing of this Warrant hath not pursued it for he hath only entred into the Lands but it is not found that he entred into the Manor and so the Lease is void And it was said by Puckering That if I lease two Acres in two several Counties rendring for the one Acre 10 s. and for the other Acre 10 s. and make a Letter of Attorney to make Livery in both if the Attorney entreth into one Acre and makes Livery the same is void for the Attorney hath not pursued his authority for peradventure I would not have leased the Acre whereof Livery is made for such rent of 10 s. being perhaps of greater value but with the other Acre which was of lesser value and so the mis-executing of my warrant shall prejudice me Windham Perhaps if one entire Rent had been reserved out of both Acres it may be that by the Livery in one Acre all is void But by Puckering one entire Rent cannot be reserved upon such a Lease of two Acres in several Counties Walmesley denied the Case put by Puckering for the authority is executed well enough for it doth not appear upon the Verdict but that the Colledge was in possession at the time of the Lease made and then there needed not any such Entry but the bare sealing and delivery of the Attorney is good enough And also it doth not appear by Verdict That the Colledge hath any Manor and therefore it shall be so intended and then the Case is no other but that A man leaseth a Manor and certain Lands in D. and makes a Letter of Attorney to make Livery of them where he hath nothing in the Manor and the Attorney makes Livery of the Land without medling with the Manor the same is a good Livery and the authority duly executed But if it had been expresly found that the Colledge had such a Manor there then the Entry in the Land only without medling with the Manor and the Livery made accordingly should not be good But
be taken or comprehended under the name of a Benefice having Cure of Souls in any Article above specified CCCCXLIII Pasch 30 Eliz. In the Kings Bench. Aâ—iâ—d ONe was bounden to stand to the award of two Arbitrators who award that the party shall pay unto a stranger or his assigns 200 l. before such a day the stranger before the day dieth and B. takes Letters of Administration and if the Obligor shall pay the mony to the Administrator or that the Obligor should be discharged was the Question and it was the opinion of the whole Court that the mony should be paid to the Administrator for he is Assignee and by Gawdy Iustice If the word Assignee had been left out yet the payment ought to be made to the Administrator quod Coke affirmavit CCCCXLIV Pasch 30 Eliz. In the Kings Bench. ONe sued in the Kings Bench for Costs given upon a Suit depending in the Hundred Court and the sum of the Costs was under 40 s. and the Plaintiff declared Steward That at the Court holden before the Steward secundum consuetudinem Manerii praedict It was objected that the Steward is not Iudge in such Court but the Suitors to which it was answered by the Iustices That by a Custom in a Hundred Court a Steward may be Iudge and so it hath been holden and here the Plaintiff hath declared upon the Custom for the Declaration is secund consuetudinem Manerii also the Subject may sue here in the Kings Bench for a lesser sum than 40 s. as if 10 s. Costs be given in any Suit here Suit to such costs lieth here in this Court. CCCCXLV Pigot and Harringtons Case Mich. 30 31. Eliz. In the Kings Bench. PIgot brought a Writ of Error upon a Fine levied by him within age Error 1 Cro. 11. the Case was That the Husband and Wife were Tenants for life the Remainder to the Infant in Fee and they three levied a Fine and the Infant only brought the Writ of Error It was objected by Tanfield that they all three ought to joyn in this Writ and the Husband and Wife ought to be summoned and severed Atkinson contrary for here the Husband and Wife have not any cause of action but the Infant only is grieved by the Fine 35 H. 6. 19 20 21 c. In conspiracy against many it was found for the Plaintiff and one of the Defendants brought Attaint and assigned the false oath in omnibus quae dixerunt but afterwards abridged the assignment of the false oath as to the damages and so the attaint well lies Two women are Ioynt-tenants they take Husbands the Husbands and their Wives make a Feoffment in Fee Attaint the Husbands dye the Wives shall have several Cui in vita's for the coverture of the one was not the coverture of the other 7 H. 4. 112. In Appeal against four they were outlawed and two of them brought Error upon it and good 29 E. 3. 14. In Assize against three Coparceners they plead by Bailiff nul tenent de Franktenement c. and found that two of them were disseisors and Tenants and that the third had nothing and afterwards the three Coparceners brought attaint and after appearance the third Sister who was acquit was nonsuit and afterwards by Award the Writ did abate Tanfield Although that the cause be several yet the erronious act was joynt and the receiving of the Fine and that Record being entire ought to be pursued accordingly and then the Husband and Wife shall be summoned and severed and it is not like to the case of 29 E. 3. cited before for there the third coparcener had not any cause of attaint for no verdict passed against her Wray As the Error is here assigned the Writ is well brought for the Error is not assigned in the Record but without it in the person of the Infant Fine upon an Infant reversed and that is the cause of the Action by him and for no other Two Infants levy a Fine although they joyn in Error yet they ought to assign Errors severally and they may sue several Writs of Error and afterwards it was holden by the Court that the Writ was good and the Fine reversed as to the Infant only CCCCXLVI Scovell and Cavels Case Mich. 30 31. Eliz. In the Kings Bench. IN Ejectione firmae by Scovell against Cavel Leases 1 Cro. 89 the Declaration was general upon a Lease made by William Pain and it was found by special verdict That William Leversedge was seised of the Lands c. and leased the same to Stephen Cavel John Cavel and William Pain habend to them for their lives and for the life of the survivor of them Provided always and it was covenanted granted and agreed betwixt the parties that the said John Cavel and William Pain should not take any benefit profit or commodity of the Land during the life of Stephen Cavel and further that the said William Pain should not take any benefit c. during the life of John Cavel c. Stephen Cavel died John Cavel entred and afterwards William Pain entred and made the Lease to the Plaintiff upon whom the Defendant entred and if the Entry of William Pain were lawful was the Question Gawdy Serjant his Entry is not lawful It will be agreed That if a man lease to three for their lives they are Ioynt-tenants but if by the habendum the estate be limited to them by way of Remainder the joynt estate in the Premises is gone and the Land demised shall go in Remainder and I agree that in deeds Poll the words shall be taken strong against the grantor contrary in the Case of Indentures the words there shall be taken according to the intent of the parties for there the words are the words of both See Browning and Beestons Case 2. and 3. Ma. Plowd 132. where by Indenture the Lessee covenanted to render and pay for the Land Leased such a Rent the same is a good reservation although it be not by apt words and here in our Case this Proviso and Covenant Grant and Agreement doth amount to such a limitation by way of Remainder especially when such a clause followeth immediately after the Habendum Coke contrary The Office of the Habendum is to limit and explain the estate contained in the premises and here the Habendum hath done its Office and made it a joynt estate and therefore the Clause afterward comes too late and in truth is repugnant and utterly void as to such purpose but perhaps an action of Covenant lies upon it Wray It hath been by me adjudged if a Lease be made to three Habendum successive the same is a void word and the Lessees are joynt-tenants contrary of Copyhold by reason of Custom and here the proviso and the clause following is contrary to the Habendum and repugnant and so void as to the dividing of the estate by way of Remainder which Gawdy Iustice granted Heale
Action against the Executor of I.D. And it was agreed by the Court that if a man makes his Debtor and a stranger his Executors and the Debtor dieth the surviving Executor may have an Action of debt against the Executor of the Debtor and so it was adjudged in the principal case CCCCXLIX Wollman and Fies Case Mich. 31 32 Eliz. In the Kings Bench. Assumpsit 1 Cro. 179. IN an Action upon the Case upon Assumpsit that the Plaintiff should enjoy such Lands for so many years The Defendant pleaded the Statute of 13 14 Eliz. because the Land is the Glebe Land of such a Parsonage and in truth the Defendant did mis-recite the Statute For the Statute is No Lease after the fifteenth day of May And the pleading is hereafter to be made Secondly the Statute is of any Benefice with cure the pleading is of any Benefice Thirdly The Statute is without absence above eighty and the pleading is without absence by the space of eighty days And for these Causes the Plaintiff had Iudgment CCCCL Frond and Batts Case Trin. 31 Eliz. In the Kings Bench. Debt Payment to the wife not good IN debt upon a Bond upon condition to stand to the Award of I.S. The Defendant pleaded That the said I.S. had Arbitrated that the Defendant should pay to the Plaintiff ten pounds and he said he had paid it to the Plaintiffs wife who received it upon which the Plaintiff did demur And Iudgment was given for the Plaintiff CCCCLI Trin. 31 Eliz. In the Kings Bench. Grants of the King of the Office of Marshal of the Kings Bench. THe Queen granted to George Earl of Shrewsbury An. 15. of her reign the Office of Earl Marshal of England and now came the said Earl and prayed that I. S. one of his Servants to whom he had granted the Office of Marshal of the Kings Bench might be to it because the same is an Office incident to his Office and in his power to grant and that Knowles to whom the Queen had granted the said Office of Marshal of the Kings Bench by the Attainder of North. be removed And a President was shewed 14 15 Eliz. Betwixt Gawdy and Verney where it was agreed That the said office was a several office from the said great office and not incident to it And as to the Case of 39 H. 6. 33 34. the truth is the said office of Marshal of the Kings Bench was granted expresly by the Duke by express words and so he had it not as incident to his office of Marshal of England On the other side there were three Presidents shewed first in the time of E. 2. That the office of the Marshal of the Kings Bench was appendant to the said office of Marshal of England Secondly 8 R. 2. When the said great office was in the King he granted the said office of Marshal of the Kings Bench But 20 R. 2. both offices were rejoyned as they were before in ancient time and there were also shewed Latters Patents of 4 E. 4. and 19 H. 8. by which it appeared That the said inferiour office had time out of mind been part of the great office And it was moved That when the said great office is in the Kings hands and the King grants the said under office if now this office be not severed from the great office for ever Wray It is no severance for the chief office is an office of Dignity which may remain in the King but this under office is an office of necessity and the King himself cannot execute it by which of necessity he ought to grant it Another matter was moved If the Grant of the King unto the Earl of Shrewsbury were good because in it the Grant to Verney of the said under office is not recited according to the Statute of 6 H. 8. 9. As 26 E. 3. 60. The King seised of the Honor of Pickring to which a Forrest was appendant the Bayliwick of which Forrest he granted in fee rendring rent and afterwards he granted the Honor with Appurtenances and afterwards the Bailiff committed a Forfeiture and that was found in Eyre the Grantee of the Honor shall seise it yet the King shall have the Rent And here the Earl of Shrewsbury shall have this office in his power to grant And so much the rather because it was granted but for life CCCCLII Michill and Hores Case Trin. 31 Eliz. In the Kings Bench. MIchil did affirm a Plaint in the Court of the City of Exeter against Hore for twenty pounds and upon Nihil returned Attachment of goods by custom of Exeter it was surmised That Trosse had certain monies in his hands due to Hore and according to the custom of Exeter the said monies were attached in the hands of Trosse who appeared upon the Attachment and pleaded That he owed nothing to Hore upon which there was a Demurrer Error and Iudgment given against Trosse because that Trosse ought to have pleaded not only that he owed him nothing but further that he had not any goods of Hores in his hands And thereupon Trosse brought a Writ of Error and assigned the Error in the principal matter upon which it was demurred and Iudgment given against the Plaintiff because that the Plea of Trosse that he owed him nothing is good enough for if there be not a Debt it is not attachable upon such Attachment And it is a good Plea to a common intent and altogether in use in London were such custom is Another Error was assingned for that Michill had recovered Costs against Trosse where it ought not to be And also Iudgment is not given that Trosse should be discharged against Hore And afterwards the Iudgment given in Exeter was reversed CCCCLIII Dennis and Saint Johns Case Mich. 30 31 Eliz. In the Common Pleas. Debt 1 Cro. 494. IN Debt upon an Obligation against Oliver Saint John and Alice his wife as heir of her Father The Defendants pleaded Non est factum of the Father And it was found by special Verdict That the Obligation was made by the Father of the Wife to the Plaintiff and another whereas in truth The Plaintiff hath declared upon an Obligation made to himself only without speaking of any other joynt Obligee Non est factum and that the Plaintiff as Survivor hath brought the Action and if upon the matter it shall be said the Deed of the Defendant in manner as the Plaintiff hath declared the Iury refer unto the Court And the case 14 E. 4. 1. b. If three enfeoff me and I plead That two did enfeoff me and the same be traversed it shall be found against me for the Feoffment is a joynt act by them all But if a man enfeoffeth me and two others and they dye so as I have all by Survivor in pleading I may shew the Feoffment was made to me alone So 46 E. 3. 17. a. Three Joynt-tenants in Fee make a
that was holden by the Court clearly to be Error and afterwards at another day it was moved by Coke That a man attainted of Felony could not make Executors for he is dead in Law and as Bracton saith solus Deus facit Haeredes homo nominat Executores and therefore the Heir only shall have a Writ of Error also an Executor cannot have a Writ of Error but only upon a Iudgment given in a personal Action but this Attainder is a thing of a higher nature as where a Woman poysoneth her Husband the Heir shall not have an Appeal for Murder is changed into Treason and that offence is a thing of a higher nature so this Attainder is of a higher nature than in the personalty Also it may be mischievous to the Heir for the Executor may forthwith bring and pursue his Writ of Error by which the Iudgment shall be affirmed and so the right of the Heir shall be bound also when Error is brought to reverse an Outlawry of Felony a Scire facias ought to be sued against the Lords mediate and immediate which cannot be here at the Suit of the Executors also it was found by Enquest of the Coroner that the Testator fugam fecit so that thereby if he had been acquitted he shall lose his goods and then the Executors have not any reason to bring this Writ of Error but see 11 H. 4. Error 51. That Executors shall have a Writ of Error of an Outlawry pronounced against their Testator and if it be reversed they shall have restitution of the goods of the Testator but it doth not appear there that it was upon an Indictment of Felony Altham As well the Executor as the Heir is a person able for to sue a Writ of Error in such case as 13 E. 4. where a false oath is given against one in Assise and dieth the Heir shall have an Attaint for the Land and the Executor in respect of the damages Popham Attorney General This Outlawry is a real Iudgment therefore the Executor cannot have Error upon it Wray It is good that this case be considered for it may be mischievous for thereby the Executor shall avoid the Attainder against the King and the Lords Fenner That cannot be without a Scire facias Gawdy The Executors shall have this Action and as to that which hath been objected that the party attainted cannot make Executors the same is no reason for the Executors do pretend that their Testator was not lawfully outlawed and so by this Suit they do endeavour to take away that disability and therefore it ought not to be objected against the Executor and if the Case here be That the Testator had not lands but only goods there is no reason but that the Executors should have a Writ of Error otherwise the goods of the Testator should be lost and it was clearly holden by Wray chief Iustice That the Executor might have and pursue this Writ of Error the Outlawry of the Testator notwithstanding and afterwards the Outlawry was reversed accordingly CCCCLX Trussels Case Trin. 31 Eliz. In the Kings Bench. Habeas corpus Owen Rep. 69. ◠Cro. 213 516. Co. 3 Inst 213 215. TRussel was removed out of the Counter of London by Habeas corpus into the Kings Bench. Egerton The Queens Solicitor moved the Court that Trussel was a person attainted of Felony and so had not any lands or goods to satisfie c. and also his life was not his own and upon the Return of the Habeas corpus it appeared that Trussel was detained in Prison for an Execution and for divers Actions and it was the opinion of the Court Executions Post 329 330. that as to the Execution he ought not to be discharged for then the party should lose his debt for ever but as to the other actions it was the opinion of all the Iustices that Trussel ought to be discharged of them for a man so attainted ought not to be put to answer nor taken in Execution and so are all our Books And they said that they had conferred with the Iustices of the Common Pleas and with the Barons of the Exchequer which were of a contrary opinion in this case upon the very matter and not upon the manner of the pleading but yet we will discharge our Consciences as we have done for there is not any Book against us Egerton stetit super semitas antiquas and at last it was awarded That Trussel should be discharged of all Actions brought against him CCCCLXI Sovers Case Trin. 31 Eliz. In the Kings Bench. SOver and others were Indicted upon the Statute of 8 H. 6. Indictments upon the Statute of 8 H. 6. of forcible Entry because they had expulsed one A. out of his Land and disseised the Mayor and Commonalty of London who were in Reversion and the same being removed hither Restitution was prayed thereupon and White for the City who was in Reversion and the Lessor prayed that no Restitution might be for they had let the House to another Restitution Yelv. 81. Dy. 141 142. and that he who had procured this Indictment claimed in by a Custom of London That the Executor of the last Termor should not be put out if he shall give as much for it as any other will whereas in truth there is not any such Custom and for that cause the Restitution was stayed and it was said by the Court that Restitution shall be always made to him in the Reversion and not to the Lessee for years for he who is disseised shall be restored and then the Lessee may re-enter CCCCLXII Beal and Carters Case Trin. 31 Eliz. In the Kings Bench. IN an Action of false Imprisonment False Imprisonment Owen Rep. 98 287. the Defendant justified because the Plaintiff brought a Child of the age of six years and not above into the Parish Church of W. eundem ibidem relinquere voluisset intendisset without keeping or nourishment to the danger and destruction of the Child contra pacem for which the Defendant being Constable of the said Parish arrested the Plaintiff and put him in prison until he did agree and promise to carry the Child from whence it came upon which the Plaintiff did demur in Law. It was moved that the Iustification was good for every Subject might do it à fortiori a Constable and if in this case the Child being so exposed should be famished for want of nourishment it had been murder as it was holden at Winchester before the Lord chief Baron 20 Eliz. Another Exception was taken to the Plea because he saith quendam infantem without naming him and he ought to say Quendam infantem ignotum Antea 56. but that Exception was not allowed Another Exception ibidem relinquere intendisset but he doth not say that he did depart from it and then his meaning is not traversable or issuable or to be tried by Iurors See 22 E. 4. 45. Gawdy
he is a Trespassor to the Lessee And in another Case A man shall take advantage of his own wrong Fitz. N.B. 35. N. An Infant hath an Advowson by descent the Church becomes void he who hath Right paramount usurps and presents to the Church and the 6 months pass now by this tortious usurpation he is remitted and the Infant out of possession and without remedy And he cited the Case 16 H. 7. 10. A Scire facias out of a Fine was brought against an Abbot by which Fine the Predecessor of the Abbot granted to find a Priest to sing Mass in such a Chappel c. and the Abbot pleaded That the said Chappel was become ruinous and decayed so as no Priest could sing Mass there and it was prayed on the part of the Plaintiff that forasmuch as the Covenant is confessed that Iudgment be given but that Execution should cease until the Chappel be rebuilt but it was not allowed for this is a good Bar for the time and no Iudgment shall be given for it shall be in vain for it cannot be executed because there is no Chappel and it may be the Chappel shall never be built again And so in the principal Case c. It was adjorned CCCCLXVII Knightley and Spencers Case Trin. 33 Eliz. In the Kings Bench. IN a Prohibition betwixt Knightley and Spencer The Case was Prohibition More Rep. 528. 2 Co. 47 48. 2 Cro. 452. That Ph. Abbot of Evesham and all his Predecessors time out of mind c. were seised as well of the Rectory impropriate of B. in the County of N. and also of the Manor of B. in the same Parish c. until the dissolution of his House and that by reason thereof the said Abbot and all the Predecessors had holden the said Manor discharged of payment of Tithes until the dissolution c. and shewed the branch of the Statute of 31 H. 8. And that the said Abbot did surrender the Possessions of the said House to the King and that the King held the same discharged of the payment of Tithes and that afterwards the King granted unto the Ancestor of Knightley the said Manor and to the Ancestor of Spencer the said Rectory and although the Plaintiff ought de jure to hold the said Manor discharged of Tithes yet the Defendant sued him in the Spiritual Court c. To which the Defendant confessing the Impropriation pleaded That the said Abbot was seised ut supra but that before the making of the said Statute of 31 H. 8. the said Abbot demised Decimas Rectoriae praedict to one Spencer for 70 years who made the Defendant his Executor and died and that at the time of the said Demise and dissolution of the said Abby one Goodman and others were possessed of the said Manor until the year 1585. which was the year before the Suit began in the Spiritual Court and that at the time of the dissolution he paid Tithes for it and now the Plaintiff refuseth to pay c. absque hoc That the Abbot and his Predecessors held the said Manor quit of the payment of Tithes time out of mind c. upon which the Plaintiff did demur in Law. Coke for the Plaintiff That this Vnity of possession is a discharge within the Statute of 31 H 8. the words of which are Unity of possession a discharge of Tithes That the King and his assigns shall have and enjoy the Lands discharged and acquitted of Tithes as freely as the said Abbot held the same at the day of the dissolution And see before whereas divers Abbots were acquitted and discharged of and for the payment of Tithes for the Statute doth not intend a real discharge as by composition or such manner which is not here but only a suspension which is not any discharge in Law and yet in speaking of discharge ordinarily an actual discharge is understood As if I be bound by Obligation to discharge one of such a Bond it is not enough to pay the mony but I ought to procure an actual Discharge where it is put generally but where it is put secundum quid as it is here referred to the Dissolution a suspension is a Discharge intended in the said Statute but where the Statute is indefinite there an actual Discharge is understood but restrained to a time a suspension sufficeth and truly it is a discharge within the intent of the Statute for if the Statute shall be intended of an absolute discharge and a Discharge in Law only the Statute had been superfluous for the Law said so much before for without such provision the King and his Assigns held discharged from payment of Tithes But the makers of the Statute knew well enough that the Abbot might have such discharge by divers means and it should be infinite for the party interessed to enquire of them all and therefore they did enact briefly That if at the time of the dissolution they were in any manner freed of payment of Tithes the same should be sufficient and so here is not any wrong unto any for the Parson had all as he had before and the same is like to the case betwixt Wharton and Morley 7 Eliz. in the Exchequer the Report of which Mr. Plowden communicated unto me and it was upon the Statute of 1 E. 6. cap. 14. of Monasteries That all Grants made to the King by any Provost Wharton and Marleys Case Governour c. of any Manor c. shall be good c. and the Case was That a Prebend of the Church of York surrendred to the King but the Surrender was never enrolled and yet adjudged good upon the Statute for if it was a lawful Surrender the same had been good of it self without any aid of the Statute which was made to supply insufficient assurances and so in our Case for the cause aforesaid and it should be injurious to drive the Iury to enquire of the manner of the Discharge if it were by composition upon the foundation or by dispensation of the Pope as Cistere Templarii And here the Plaintiff hath declared of an Impropriation before time of memory and so before the Council of Lateran which was within those 400 years and 25 Eliz. there was a Sussex Case where the Plaintiff declared as here but they would not proceed and see Dyer 10 Eliz. 277 278. The Prior of St. John hath priviledge from Rome that he shall not pay Tithes for any Land quas propriis manibus aut sumptibu◠excolant but their Farmers have paid Tithes and it was holden that in the hands of the Farmers Tithes should be paid but after the Term ended the Patentee should hold discharged so as the Statute hath a favourable construction upon this point Now it is 〈◊〉 if the Lease of the Rectory by which the Defendants claim be good or not and then admitting that Tithes are due in this Case yet if his Lease be void he shall not have a Consultation especially if it
appeareth upon his own shewing as it was holden in a Hampshire Case betwixt Sutton and Dowze Sutton and Dowzes Case 2 Len. 55. 3 Len. 155 164. which see Mich. 25 26 Eliz. and in that case the Lease is void for it was made within a year after the Statute of 31 H. 8. the January before and the Statute in April after for he hath not averred that the usual Rent is reserved nor that the Land was usually let to farm for which Leases otherwise made within the year are absolutely void by the said Statute But it will be objected Ante 306. 1 Cro. 707 708. Heydons Case That this matter shall come in of our part and it is sufficient for them to plead the Case but it is not so as it was lately agreed in Heydons Case in the Exchequer where the Case was That the Warden and Canons of the Colledge of Otery leased certain Lands to Heydon for years and he in pleading of his Lease did not shew that the ancient Rent was reserved and therefore naught and so was the opinion of the Iustices of the Common Pleas Lord Cromwel and All-Souls Case in the Case betwixt the Lord Cromwel and All-Souls Colledge upon the Statute of 18 Eliz. cap. 6. upon a branch of it by which it was provided that the third part of the Rent reserved upon any Lease should be paid in Corn c. and the Leases made to the contrary should be void and in an Ejectione firmae brought upon such Lease because it was not shewed in the Declaration that the Corn was reserved according to the Statute Iudgment was arrested and we need not to plead the Statute for although the Statute be particular yet because the King hath interest in it it shall be holden in Law a general Act and the Iudges shall take notice of it although it be not alledged by the party as it was ruled in the Lord Barcklays Case 4 Eliz. Plow 231. but if such Rent was reserved yet the Lease cannot be good for the King cannot have his Rent because it is not incident to the Reversion nor passeth by the Grant of the Reversion for it is not a Rent but rather a sum due by reason of contract which see 30 Ass 6. A man leaseth a Hundred rendring Rent or grants a Rent out of a Hundred the same is not a good Rent but meerly void for a Hundred is not Manorable nor can be put in view nor any Assize lieth of such Rent See 9 Ass 24. and in 20 Eliz. in the Case betwixt Corbet and Cleer 7 Co. 5. Corbet and Cleers Case the Dean and Chapter of Norwich leased a Parsonage and common of Pasture rendring Rent 1 E. 6. they surrendred their possessions to the King and afterwards the King granted the Parsonage without speaking of the common of Pasture It was holden that the Patentee of the Parsonage should have all the Rent and no apportionment should be in respect of the Common for all the Rent issueth out of the Parsonage and nothing out of the Common So here 2 Co. 48. for Tithes are not an Hereditament which cannot support a Rent within this Statute for which cause the Lease is void Also he said that the traverse of the Defendant was not well taken for the Plaintiff hath said That time out of mind c. the Abbot and his Predecessors were seised of the Rectory and Manor aforesaid simul semel and ratione inde was discharged c. at the time of the dissolution the Defendant traverseth absque hoc that the Abbot and his Predecessors held discharged of Tithes time out of mind c. which is not good for he hath traversed our conclusion for our plea is an argument wheresoever is unity time out of mind c. there is a discharge of Tithes but in the Abbot was such an Vnity ergo he held discharged of Tithes as 21 E. 3. 22. In a Praecipe quod reddat the Tenant saith that the Land in demand is parcel of the Manor of D. which is ancient Demesn and c. to which the Plaintiff saith That it is Frank-fee and the same was not good for he denies the conclusion but he ought to plead to the nature of the Manor that it is not ancient Demesn or that the Land in demand is not parcel of it Another matter was because it is pleaded fuit in tenura occupatione of Goodman and others but he did not shew by what Title Disseisin or Lease or other Title c. Buckley contrary And he said This unity of possession is not any discharge of Tithes by the said Statute and as to the Case cited before of 3 H. 7. 12. where Tenant in tail of a Rent entreth upon the Tenant of the Land now is the Rent suspended and then after when he makes a Feoffment in fee by that Feoffment the Rent is extinguished which was but suspended at the time of the Feoffment and therefore some have holden that if after such Entry he makes a Lease for life of the Land that his Rent or Seigniory is utterly gone in perpetuum for by the Livery all passeth out of him which he said cannot be Law and so it seemed to Gawdy Iustice Then upon such Feoffment with warranty he could not vouch as of Land discharged of the Rent generally but as of Land discharged at the time of the Feoffment which proves that the suspension is not a discharge for it was suspended before the Feoffment and discharged by the Feoffment and so suspension is not a discharge à fortiori in the Case of Tithes for in the case of Common and Rent although they are suspended so as they cannot be actually taken yet they are to some intent in esse As where Lands holden of other Lords are in the hands of the King for Primer seisin by reason of Prerogative and during such seisin of the King the Lord gets seisin the same is a good seisin notwithstanding that it was suspended so as he could not distrain And also in Assize of Land damages as to the Rent out of the Land shall be recouped therefore the rent in some sort is in esse and à multo fortiori this Tithe which is a thing of common Right shall be in esse but goes with the Land A Rent in esse to some purposes and suspended to other and therefore by unity of possession shall not be suspended 35 H. 6. He who hath liberty of Warren in the Lands of another entreth into the Land the Warren is not suspended nor by Feoffment of the Land is extinct and in this Case upon the matter during the unity of possession the Tithes were paid although not in specie Also the Abbot had the Tithes as Parson of B. and the Land as Abbot and therefore no suspension for the Tithes were always in esse although not taken in the manner as Tithes commonly are but by way of Retainer 22
Ease and the words were holden actionable Kinseys Case So in our Case Lewes said It was the Case of one Kinsey one said to a Bailiff of a Franchise Thou didst execute false Warrants without saying they were falsified by him adjudged an Action did not lie Wray Chief Iustice These words in themselves are not actionable for the Plaintiff might be untrue in small things which gave no discredit but the quality of the person of whom they were spoken may add weight to them as to call one Bankrupt generally no action lieth upon it but to call a Merchant so is actionable So to call oâ—e Papist no action lieth for it But if one call the Archbishop of Canterbury so an action will lie for he is Governour of the Church Thou art an untrue man to the Queen gives not an action to an ordinary Subject but such words spoken of one of the Privy Council are actionable Corrupt man in themselves are not actionable but being spoken of a Iudge an action lieth It was Birchleys Case an Attorney of this Court Thou art a corrupt man and dealest corruptly and it was adjudged per Curiam that the words were actionable for that refers to his calling Gawdy was of opinion that the words were actionable of themselves without respect had to the Quality of the person of whom they were spoken for the words are particular enough and to touch him in the duty of a Subject which is to be faithful to his natural Prince is a great Reproach and Slander Fenner conceived that the words were not actionable Wray as before Of themselves they are not actionable for they are in general for if he be indicted of Trespass he is not a good Subject THE TABLE OF THE MATTERS IN THIS BOOK A. ABatement of Writ 56 57 138 157 210 216 352 445 466 Action 216 Of Assault and Battery 63 De bonis Testatoris 277 Action upon the Case 199 234 249 263 321 For taking Toll 315 For stopping a Way 319 A Water-course 334 Action upon the Case for Words 111 131 173 179 263 469 Against a Justice of Peace for not examining 456 Action upon Statutes Of 27 Eliz. of Huy and Cry 456 Of Winchester of Huy and Cry 72 Of 5 Eliz. cap. 9. 166 Of 5 Ed. 6. for Striking 337 Of 8 H. 6. 382 Acceptance 176 Of Rent 348 Account 17 109 301 By the Heir of a Copyholder 357 Adjornment 184 Advantage of his own wrong 466 Admiralty 144 Administration 435 Advowson 84 272 283 289 Alienation 6 50 Alien 61 Amercements 145 299 327 Amendment 102 30 Annuity 292 Appropriations 49 316 Appeal 67 447 Of Mayhem doth not lye after a Re-Recovery in Trespass 447 Apportionment 33 429 Appearance 114 By Attorney 397 Arbitrament 37 95 97 137 Archdeaconry 442 Not a Cure of Souls ib. Assize 30 69 343 Assets 107 153 154 215 448 306 363 440 Assignments 391 Assault and Battery 63 64 143 169 191 Attachment upon Prohibition 151 Attachment upon the Custom of London 35 67 268 278 Of Goods 278 353 452 Attainder 27 221 279 466 Where it shall lose Dower è contr 7 What forfeited by it 27 Attaint 377 445 Attornment 11 75 316 355 397 408 Attorney 427 Ought to pursue his Authority 427 Assumpsit 23 55 121 156 80 159 167 168 180 214 217 222 238 240 241 261 303 317 323 340 401 405 410 Consideration in it where good where not 23 55 80 121 134 156 241 253 261 340 Upon Mutuatus 214 Averment 18 21 23 85 102 167 285 334 338 379 447 Not traversable 18 Superfluous 21 Not against a Fine or Record 102 157 Not against Certificate of the Bishop 285 Of a Feoffment not proved shall not avoid Dower 431 Avowry 16 18 56 103 277 Auditor 301 Audita Querela 98 195 196 310 313 421 Award 95 47 137 194 238 424 443 Ancient demesn 315 B. BAil 74 Bailment of Goods to a Carrier 278 Bargain and Sale 34 79 120 223 237 Not so strong as a Livery 10 Where void e contra 17 To the Queen 40 Of Trees 321 Bar 24 30 92 161 170 240 277 429 437 440 Where good in Assize e contra 30 Recovery pleaded where no Bar 70 Ought to be traversed confessed and avoided 102 Where a Fine is no Bar 297 Baron Feme 386 Bill 32 C. CHarge 11 418 Covenant 21 82 120 158 160 170 186 188 211 252 290 339 429 446 458 Shall not bind Executors 3 Not supply the defects of words in a Grant. 4 Quod non maritaret 67 To stand seised to uses 279 Conspiracy 146 269 Confirmation 61 316 Certiorare and certificate 12 28 69 114 285 Collation gains not the Patronage from the King 307 Challenge 9 68 112 Commission repealed 363 Common 56 100 Claim 429 Conditions 47 97 233 242 311 331 400 409 VVhere not bind an Administrator 6 Not to alien not bind Administrator 6 409 VVhere to the Land e contra 6 Shall not avoid an Interest vested 11 Void because against Law 99 Annexed to an use executed to the possession 409 Request amounts to a Condition 306 Not to discontinue 409 Taken strictly 425 Consultation 13 27 29 123 127 177 255 411 Conusans 33 64 294 Conspiracy 269 Construction of Deeds 101 Commissioners of Bankrupts 35 Churchwardens 248 Copiholds and Copiholders 1 19 46 70 124 126 128 133 139 237 243 244 365 408 Admittance 244 408 Of an Enfant 128 Forfeited for Felony 1 Seised for breaking the Lords Decree 2 Is an estate 8 128 Shall maintain Ejectione firmae 8 Dower of it e contra 19 Grantable by the Lord 70 VVithin what Statutes 126 Forfeiture of them 128 Surrenders of them 226 250 273 408 409 In extremis 128 133 243 By one in Prison 45 Out of Court 309 Corporations 36 228 Costs 142 177 444 VVhere Damages are given 382 Covin 253 Counts 53 146 212 240 241 453 VVrit general count special 307 314 329 Courts Baron and Leet 33 299 Cui in vita 210 Customs 143 178 277 315 438 Taken strictly 3 Of granting Copy-holds 70 To take Recognizances 178 To make By-Laws 270 Of London 357 358 To make Reparations 438 Applied to part of a Town 438 Ad pasturandum non ad colendum 19 D. DAmages 41 71 190 197 207 238 247 Damages not given in an account 412 No damages for the continuance of a Trespass without an Entry 416 Debt 20 21 34 37 41 59 73 88 92 95 114 153 186 206 215 229 262 281 306 274 282 290 259 381 384 422 432 434 448 453 Upon Recognizance 67 178 Upon Arbitrament 97 For Nomine poenae 149 Upon an Escape 5 Deeds 164 171 211 237 453 Construed according to the meaning of the parties 10 101 Of Dedi and Concessi 75 Enrolled avoided by Averment 257 Demurrer 190 Upon Evidences 286 Demand of Rent 425 Departure 39 120 Deprivation 402 Devastavit 448 Devises 16 42 73 120 154 155 176 187 205 219 230 242 266
Language may easily be learned in a short time by converse with Welsh-men And the Statute of 1 Eliz. which establisheth the Book of Common Prayer ordaineth that the said Book of Common Prayer shall be put in use in all the Parish Churches of Eng. and Wa. without any provision there for the translation of the said Book into the Welsh Language But afterwards by a private Act it was done by which it is enacted That the Bishop of Wales should procure the Epistles and Gospels to be translated and read in the Welsh Language which matter our Presentee might do by a Curate well enough And he conceived that by divers Statutes Aliens by the Common Law were capable of Benefices See the Statute of 7 H 2. Cap. 12. 1 H 5 Cap. 7. 14 H 6. Cap. 6. and before the said last Statute Irish-men were capable of Benefices Gawdy Serjeant contrary and he confessed that at the Common Law the defects aforesaid were not any causes of refusal but now by reason of a private Act made 5 Eliz. Entituled An Act made for the translating of the Bible and of the Divine Service into the Welsh tongue the same defect is become a good cause of refusal in which Act the mischief is recited viz. That the Inhabitants of Wales did not understand the Language of England therefore it was Enacted That the Bishops of Wales should procure so many of the Bibles and Books of Common Prayer to be imprinted in the Welsh Language as there are Parishes and Cathedral Churches in Wales and so upon this Statute this imperfection is become a good cause of refusal And he likened it to the Case of Coparceners and Ioynt-tenants Ante 28. who now because that by the Statute of 32 H 8. Ioynt-tenants are equally capable to make partition as Coparceners were by the Common Law Now Partition betwixt Ioynt-tenants within age is as strong as betwixt Parceners within age But as to that point it was said by the Lord Anderson that it is very true that upon the said Statute the want of the Welsh Language in the Presentee is now become a good cause of refusal but because the said Act being a private Act hath not been pleaded by the Defendant we ought not to give our Iudgment according to that Act but according to the Common Law. Another matter was moved because here appeareth no sufficient notice given to the Patron after the said Refusal for the Plaintiff did present the thirtenth of August the Church voyding the fourteenth of March before the nine and twentieth of August the six months expired the fourth of September the Defendant gave notice to the Patron of the refusal and the fourteenth of September was the Collation and it was said by the Lord Anderson that it appeareth here that there are two and twenty days between the Presentment and the Notice which is too large a delay And the Defendant hath not shewed in his Plea any cause for the justifying or excuse of it and therefore upon his own shewing we adjudge him to be a disturber See 14 H. 7. 22. 15 H. 7. 6. and note by Periam it was adjudged in the Case of Mollineux if the Patron present and the Ordinary doth refuse he ought to give notice to the person of the Patron thereof if he be resident within the County and if not at the Church it self which is void XL. Mich. 27 28 Eliz. At Serjeants Inn. THis Case was referred by the Lords of Council to the Iustices for their opinions I.S. by Indenture between the Queen of the one part and himself of the other part reciting that where he is indebted to the Queen in eight hundred pounds to be paid in form following twenty pounds at every Feast of St. Michael until the whole sum aforesaid be paid covenanted and granted with the said Queen to convey unto the Lord Treasurer and Barons of the Exchequer and to their Heirs certain Lands to the uses following viz. to the use of the said I.S. and his Heirs until such time as the said I. S. his Heirs Executors or Administrators shall make default in payment of any of the said sums and after such default to the use of the said Queen her Heirs and Successors until her Heirs and Successors shall have received of the issues and profits thereof such sums of money parcel of the said debt as shall be then behind and upaid and after the said debt so paid and received then to the use of the said I.S. and his Heirs for ever I.S. levyeth a Fine of the said Land to the said Lord Treasurer and the Barons to the uses aforesaid and afterwards being seised accordingly by deed indented and enrolled bargains and sels the said Land to a stranger default of payment is made the Queen seizeth and granteth it over to one and his Heirs quousque the money be paid and after the money is paid And upon conference of the Iudges amongst themselves at Serjeants Inn they were of opinion that now I.S. against his Indenture of bargain and sale should have his Lands again for at the time of the bargain and sale he had an estate in Fee determinable upon a default of payment ut supra Post 93. 3 Len. 43. Owen Rep. 6. 1 Inst 49. 2 which accrued to him by the first Indenture and the Fine which estate only passed by the said Indenture of bargain and sale and not the new estate which is accrued to him by the latter limitation after the debt paid for that was not in esse at the time of the bargain and sale but if the conveyance by bargain and sale had been by Feoffment or Fine then it had been otherwise for by such conveyance all uses and possibilities had been carried by reason of the forcible operation of it XLI Taylor and Moores Case Hill. 28 Eliz. In the Kings Bench. TAylor brought Debt upon an Obligation against Moore Debt Error who pleaded in Bar upon which the Plaintiff did demurre and the Court awarded the Plea in Bar good upon which Iudgment the Plaintiff brought a Writ of Error and assigned Error in this that the Bar upon which he had demurred as insufficient was adjudged good Vpon which now in this Writ of Error the Bar was awarded insufficient and therefore the Iudgment reversed But the Court was in a doubt what Iudgment shall be given in the Case viz. whether the Plaintiff shall recover his debt and damages as if he had recovered in the first Action or that he shall be restored to his Action only c. And Wray cited the Case in 8 E. 4. 8. and the Case of Attaint 18 E. 4. 9. And at last it was awarded that the Plaintiff should recover his debt and damages See to that purpose 33 H 6. 31. H 7. 12 20. 7. Eliz. Dyer 235. XLII Higham and Harewoods Case Hill. 28. Eliz. In the Kings Bench. More Rep. 221. 3 Len. 132. IN an Ejectione firmae the Case was