of the 4. H. 7. cap. 24. the demandant replied that 15. Iac. she brought a writ of Dower against the now Tenants and against two others and that the writ abated by the death of the two others and that she brought a writ by Iourneys accompts the Tenant replied that the others were not Tenants but one Sir Iohn Web and it was moved that this rejoynder was evil for they confessed that they themselves are Tenants by which the writ is good against them at the least Hobert if she brought a writ of Dower against one who is not Tenant that is not any claim within the Statute but if she brought a Dower against 4. who are Tenants and two die and she bring a writ against the others by Iourneys accompts this is a good claim within the Statute though the second writ was after the time limitted but quere here if the two who died were not Tenants Trin. 21. Iac. C. P. Harvey against the Hundred of Chelsam HArvey brought an action upon the Statute of Winchester of Hue and cry against the Hundred of Chelsam and it is found for the Plantiff and a writ of error was brought and all the record was certified and now the Plantiff prayed two things may be amended the first is the title of the action for upon the roll it is an action upon the case it should be an action upon the Statute but it was said by Hobert that it shall not be amended for the Statue of the 18th of Eliz. did not give amendments upon indictments or upon popular actions or actions upon penal Statutes and cited a judgement in Doctor Husses case Coo. 9. 71. which was reversed in Banco Regis upon default in pleading being upon a penal Statute and so in Mich. Term last Judictari for Indictari and adjudged that it shall not be amended and the second point was upon the venire facias where was one Gregory retorned as appears by the names of the Iury but the Clark of the Assise returned one George and it was entered upon the roll and certified in the record to the Kings Bench and per totam Curiam there needs no amendment for that name of George where it should be Gregory being in the tales de circumstantibus and not in the principal panel and it was also by consent of the parties and as to the first point all the Court agreed with Hobert and for the second point Hobert said that if that variance had been material it should not be amended for we will not make a new certificate for the Court of the Kings Bench may choose to credit the first or the second certificate and so we submit our judgements to the censure and pleasure of another Court which we will not do and in the great case of Fulger 18. Iac. where we made such a new certificate though it was adjudged according to our opinion yet they would not credit our last certificate and therefore we will not make a certificate again which note well Hasset against Hanson HAsset brought an ejectione firme against Hanson and upon a general issue and a special verdict the case was this that one Woodhouse was lessee for years of the King of a Mannor and I. S. was a Copiholder of a Tenement of inheritance and the Coppiholder bargained and sold his Coppihold land in such a Town to the lessee of the Mannor and this was by indenture and the indenture was to this effect that he bargained and sold all his lands and Tenements as well Coppiholds as other land bought of Iohn Culpepper in such a Town and it was found that the lessee of the Mannor entered in the Coppihold and occupied and after that the said I. S. died after whose death W. S. his heir was admitted as heir of I. S. upon the presentment of the homage that I. S. died seised and that the said W. is his heir and that at the same Court W. S. Surrendered to the use of the Plantiff and he was admitted and it was argued by Richardson for the Plantiff and by Attoe for the Defendant And these insuing points were agreed by the Iustices S. by Hobert Winch Hutton and Iones and first it was said by Hobert that though a Coppiholder may not convey his Coppihold to a stranger without Surrender and admittance yet he may grant his estate to the Lord of the Mannor out of the Court by bargain and sale for the custome is not between the Lord and his Tenants but between themselves only Secondly Winch said that the admittance of the Lord viz. the lessee of the Mannor amounts to a grant to him who had a title but it is otherwise if it is to him who was in by wrong as by disseissin Coo 4. 22. which was granted by all the Court. Thirdly Iones Iustice said that the bargain is void for it is of all lands and Tenements bought of Iohn Culpepper and it was not found by verdict nor yet averred by the party that the land was bought of Culpepper which Hobert and Hutton granted and Hutton cited 2. E. 4. 29. but Winch to the contrary as to that point but they all agreed that the Plantiff shall have judgement and accordingly so it was done Mich. 21. Jac. C. P. M. 21. Iac. in C. P. Pleadal against Gosmore PLeadal an Attorney of the Common pleas brought an action of trespas against Gosmore and he declared of the taking of a Mare Colt in May and of the retainer till the first of Iuly and that the Defendant held him in Compedibus Anglice in fetters diversis vicibus temporibus by which she Colt was much the worse and the Defendant pleaded that the Countess of Hartford was Tenant for life of the Mannor of Sherstone within which the taking of the Colt is supposed to be and that the Lords of the Mannor time before memory c. had used to have estrayes and used to seise them by their Bailiffs and to proclaim them according to the Law of the land and that the said Mare Colt came within the Mannor such a day and the Defendant as Bailiff to the said Countess seised that as an astray and made proclamation according to the Law and when the Mare Colt was so fierce and wild that he could not came that nor keep that out of the lands of his neighbours he Fettered her as to him bene licuit and he detained her till the first of Iuly at which day the Plantiff came to him and told him that this was his Mare Colt upon which the Defendant delivered her which is the same Trespas c. and upon that the Plantiff demurred and Attoe argued that the plea was not good for matter of Law for a man may not Fetter an estray Colt as appears in the like case 27. Assises and the reason is because satisfaction shall be given for his damages which he made to the Defendant and he cited a case adjudged in that point 8. Iac. Trin. between
Plantiff in Hammond which indenture rehearseth that King Henry the eight was seised of this land in his demeasne as of fee in the right of his Crown from him conveyed that to Ed. 6. who in the 7. year of his Raign by his letters patents bearing date at Westminster he granted that to one Fitz Williams to Hilton in fee as by his letters patents may appear they being so seised by indenture which bore date c bargained and sold that to Henry Hoskins and to Proud also recited that Proud releaseth to the said Hoskins all his right as by the said release may appear and conveyed that to Iohn by discent and so the said Iohn being seised he and his son Peter made this conveyance to the Plantiff upon a good consideration in which they did covenant with the Plantiff in this manner and the said Iohn and Peter for them and there heirs do Covenant and grant to and with the Plantiff c. that they the said Peter and Iohn Hoskins according to the true meanâ—â—ing of the said indenture were seised of a good estate in fee simple and that the said Iohn and Peter or one of them have good Authoritie to sell that according to the intent of the said indenture and that there was no reversion or remainder in the King by any Act or Acts thing or things done by him or them and the Plantiff laid the breach that neither Iohn nor Peter had a lawful power to â—â—ll the Defendant pleaded that Iohn had a good power to sell that according to the intent of the said indenture notwithstanding any Act or Acts made by him or his faâ—her or by any claiming under them and upon that the Plantiff demurred and the case was now argued by the Court and Iones Iustice began and said that his opinion was that the Plantiff shall be barred the case being upon construction of covenants and the sole question is whether they are several covenants or only one covenant and I held that they are all one covenant and those words for any Act or Acts do relate to the two other precedent sentences and so it is all but one covenant though this stand upon several parts for if these words were placed in the fore-front there had been no question but that this had been but one covenant and this made no difference when it is set before and when it is set after and the repeating of that had been toutalogie for if I covenant I will build a house at Dale Sale and a vale of Brick here Brick shall refer to them all because it is tied in one entire sentence and covenant and so if I covenant with you that I will goe with you to Canterbury to Salisbury and Coventrie here the word goes relates to all 3. as in the case of Sir Henry Finch the rent was granted out of the Mannor of Eastwel and not of the Messuage lands and Tenements lying and being in the Parish of Eastwel or else where in the same Countie belonging thereto and resolved that land which is not parcel of the Mannor is not charged with the rent because it is all but one sentence and one grant and cited the case of Althams case and Hickmots case where special words will qualifie general words where they are all in one sentence and so I conceive they are but one covenant Cook 8. 9. especially in the intents of the parties and upon the intents of all the parties of the deed for when a deed is doubtful in construction the meaning must be gathered from all the parties of that but yet that is tied with two cautions that it be not against any thing expressed by the said indenture but only in case where it is doubtful Cook 2. 5. so Cheineys case and Baldewins case a habendum will destroy an implied premisses Cook 4. but not an expressed and so in Nokes case an express particular covenant qualifies the generalty of the implyed covenant like to the case which was 32. Eliz. in the Court of Wards between Carter and Ringstead Cook 8. where Carter was seised of lands in Odiham and of the Mannor of Stoy and there covenanted that he would Levie a fine to his son of all his lands in Odiham in tail and for the Mannor of Stoyes that should be to the use of his wife now these subsequent words drew that out of the tail according to the intent of the parties and so in our case and I also take an exception to the form of the declartion for he conveyes that to Fitz Williams and to Proud and Hoskins by the name of all his lands and Tenements which were in the tenure of Anne Parker and did not aver that these lands for which the Covenant was made were in her hands and for that it is not good and for these reasons I conceive the Plantiff shall be barred The argument of Hutton Justice HUtton to the contrary I hold that they are 3. several Covenants and yet I agree the cases afore cited and the reason is they are all included in one sentence for it is the care of the Purchasor that he had an owner of the land before he purchase for that which is the ground of assurances that he is seised in fee and hereafter that the Covents that this is free from incumberances made by him and that he had good title to alien which strikes at the very root of assurances and my first reason is because here are several parties and they covenant that one of them is seised of a good estate and that they or one of them had power to alien that for it may not stand with the intents of the indentures to buy of him who had no title and might not sell and also the last Covenant is meerly in the negative that they have made no Act or Acts by which the reversion shall be in the King and that is all one as if the word Covenant had been added in every clause of the sentence and Covenants in law may be qualified by express Covenants but if a man made a lease for years upon condition to pay 20. l. in this case an entrie by the law is implyed for default of payment but yet if it added that if it be behinde he may enter and retain till he is satisfied of the 20. l. now in this case this had taken away the implyed Covenant and condition but every express Covenant must be taken most beneficially for the Covenantee and in Nokes case it is said that an express Covenant controuls an implied one but he may use either of them at his pleasure and election and I grant Henry Finches case to be good law for there is not any clause or sentence till after the Alibie but yet in Dyer 207. they are distinct sentences and shall receive several constructions and so here the matter being several they shall receive divers constructions and he Covenanted that
a legal signification it shall not be taken but in the better sense for the small pox but Warberton said that if one say of another that he is laid of the pox an action lyes for it is intended the french pox and Winch said that those actions of slander were known to law but of late times and for that 26. H. 8. it was thought that an action would not lye for calling another thief and in the principal case judgement was commanded to be entered quod Querens capiat nihil per brevem suum and note that I saw Hobert shew presidents to Winch in a paper which were delivered to him by the Plantiff and drawn by his Councel and he said to Winch that by those it seemed that in the Kings Bench they made a difference between for and and as had been said before and he marvailed much at that In a Capias Ulagatum before judgement the Sherif returned that I. S. and I. N. rescoused the party c. and Attoe moved that the retorn was not good for there ought to be additions by which they may be sued to the outlawry but Hobert and the Court hold this to be good without addition for no statute nor book will compel the Sheriff to give additions in this case And it was said that if the Sheriff in this case retorn that the party himself simul cum I. S. and I. N. made the rescouse that this is not good but in the principal case it was ruled that the return was good and the rescousers which were present were committed to the fleet Homan and Hull were rescousers Vpon the reading of the record the case was that an executor brought an action against one upon a promise made to the Testator in which the executor was nonsuite and 3. l. costs given against him and the Defendant bruught an action of debt upon that recovery against the executors and upon this it was demurred in law and Serjeant Towse said that there are two causes of the demurrer first whether the Defendant shall be charged as executor and is not named executor and secondly whether upon the nonsuite of an executor the Defendant shall have costs by the statute of the 23. H. 8. Hobert chief Iustice said to him you say well Note that it was said by Hobert chief Iustice that if a man dies intestate and he to whom the Administration appertaines is sued by others which pretend to be Administrators and sentence is given against the right Administrator and costs given against him the costs shall not be of the proper goods of the Administrator but of the goods of the intestate as the costs which are spent in the spiritual Court for the provate of a Testament shall be only of the goods of the Testator Hutton if the Legatee sue in the spiritual Court for a Legacy and recovers the costs which he shall recover shall not be of his own goods but of the goods of the Testator and no prohibition shall be granted for any such sentence given in the spiritual Court Hobert to the contrary for if by such means the goods of the Testator are so wasted that the debts and legacies of the Testator may not be discharged a prohibition shall be granted and in every case where the sentence in the spiritual Court crosseth the common law a prohibition lyes and he said that in the case of one Barrow in this Court it was his opinion and the opinion of the rest of the judges that if Administration be committed by force of 21. H. 8. and the Administrator pay all the debts and Legacies that in this case the ordinary had not power to dispose of the rest of the goods to the children of the intestate but they shall remain to the Administrator and that by the very intention of the Statute of 21. H. 8. but Hendon said that he could shew a president of that and the Court desired that they might see that if any such president were LLewellings case VPon the reading of a Record in the case of LLewelling the condition of the obligation was that the obligor should surrender his Copihold land to the use of the obligee and he pleaded that he had surrendered that and upon that plea the Plantiff demurred and it was adjudged upon the opening of the case by Warberton and Hutton being only present in the Court that judgement shall be given for the Plantiff for the plea in barre is not good because the Defendant had not shewed when the Court of the Lord was holden Duncombe against the Vniversity of Oxford In a Qu. Impedit in which Duncombe and others were Plantiffs who were grantees of the King against the University of Oxford and the case was Hill 18. Jac. that Sir Richard weston was seised of an advowson in grosse inter alia and was convict of recusancy and a Commission issued to seise two parts of his land and goods and they seised this advowson inter alia and the King granted the advowson to the Plantiffs and the Church became void and they presented and were disturbed by the University of Oxford and their Clark upon which they brought a Qu. Impedit upon which a demurrer was joyned and Serjeant Iones argued for the Plantiff and there was two points in the case first whether an advowson in grosse is given to the King by the Statute of the 28. of Eliz. and the Statute is that the King shall seise the lands tenements hereditaments of such a recusant convict and whether by the same statute an advowson in grosse shall be seised and he held that it shall for though perchance the word lands and Tenements will not carry that being an advowson in grosse yet this word hereditament will carry it to the King by force of the Satute for it appears by dyer 350. that if the King grant an advowson by the name of an hereditament that in this case this will pass the advowson and for that Coke 10. Whistlers case the King by the grant an of hereditament grants an advowson by such words to a common person then by the same reason a common person may grant that to the King by the same words but it may be objected that because an advowson in grosse is not valuable therefore it is not given to the King and upon this doubt upon the Statute of Wills â— H. 8. the question was whether an advowson was devisable by the name de bonis et Cattallis fellon Butler and Bakers case that they are not devisable for it is not valuable but the 4th Iac. between Taverner and Gooch which case may be seen in the new book of entries that an advowson was devisable before the Statute 5. H. 7. 37. it shall be assets 9. H. 6. 55. recovery in value lyes of that but admit that this is only a thing of pleasure for the advancement of a friend yet that shall be given by the Statute to the King But the second
objection is that though it is given to the King yet it is not extendable upon the Statute by the Commissioners for answer to that see Sir Christopher Hattons case 13. Eliz. cap. 4. upon the Statute of H. 8. which saith if a man be indebted to the King all his lands and Tenements shall be extended for this and it was ruled that an advowson was extendible for the debts of the King and more is given to the King by the Statute of the third of Iaco. then was by the 28. Eliz. for by the 28. of Eliz. the King may not seise the land but upon default of payment of 20. l. by the month but by the Statute of the third Iaco. he may seise presently and no election is given to the party secondly by the Statute 28. Eliz. the seisure of the King was only in the nature of distress for the payment of money but by the Statute of 3. Iac. the King had election to seise to satisfie himself and he may refuse to be satisfied at his pleasure and so the Statute which gives this to the Vniversity doth not take away the title of the King and upon that he concluded and prayed judgement for the Plantiffs Harris Serjeant to the contrary the Statute of 3. Iaco. is the only subject of the doubt and the first branch disables the recusant to present secondly it makes the present action void thirdly after conviction the Vniversity shall present and this in verity is that upon which the doubt is founded and upon that branch he conceived that the King had concluded himself to present to the church of the recusant for he being party himself to that act of Parliament he had dismissed himself of all right and Fortescue in laudibus legum Angliae non sunt ad voluntatem principis sed ad voluntatem totius Regni id est the Statutes of England are not at the will and pleasure of the King but at the will of the whole Kingdome Doctor and Stud. agreed and 14. H. 8. Fo. 7. E. 6. Mounson and the case of Alton woods if the saving of an act of Parliament be repugnant it is void and so upon those cases he inferred that the King being party to every act of Parliament he is bound by that and had dispossessed himself of the advowson by the Statute of the 3. of Iaco. which had given that to the Vniversity and had abrogated the power of the King to seise the advowson by vertue of the act of 28. of Eliz. for otherwise this Statute which gives that to the Vniversity shall bee meerly void and Statutes which are repugnant to former lawes take them away and do not confirme them and though the Statute of the 3. of Iaco. is in the affirmative yet that hath taken away the force of the Statute of the 28. Eliz. but it may be objected that before the recusant is convict the King had but a possibility and then by the Statute of the 3. Iac. the King had not dismissed himself of that which in judgement of the law is but a meer possibility and by consequence because he had nothing at the time of the making of the Statute but a possibility he had not given that over by the same Statute to the Vniversity to this he answered that the King may well give a possibility and a future thing as 9. H. 6. 62. 24. E. 3. 24. 30. E. Eliz. Treshams case and so he concluded because that this is given to the Vniversity by act of Parliament the King being party he had dismissed himself and the 3. Iaco. repeals 28. Eliz. as to that purpose and so he prayed judgement upon the whole matter for the Defendants And it was said by Hobert chief Iustice that this is indeed a case of great weight and importance and the Court agreed that the Statute of the 3. Iacobi gave only a power to the Vniversity of Oxford and not an interest but day was given over to argue this again the next Term. Sir George Savil against Thornton SIr George Savil declared that he was seised in fee and in gross of such a Church and that he presented I. S. his Clark who died and that he presented another and was disturbed by Thornton the incumbent the Defendant pleaded that a long time before the Plantiff had any thing in that the Pryor of D. was seised of the advowson and he being seised such a day granted the next avoydance to one Golding and that the advowson and the Priory came to the hands of H. 8. by the Statute of 31. H. 8. by force of which H. 8. was seised and afterwards the church became void and the executor of Golding who was grantee of the next avoidance presented his Clark who was admitted accordingly and afterwards he died that H. 8. died seised of the advowson which discended to E. 6. and so to Queen Mary and from her to Queen Eliz. who was seised in the right of the Crown and she being so seised granted the next avoidance to one Buckley her Clark who was admitted instituted and inducted after which Queen Eliz. died and the advowson discended to King Iames and in the 7th year of his raign the Church became void and he presented the Defendant the Plantiff by way of protestation said that Queen Mary was never seised nor died seised and by protestation that Queen Eliz. was never seised so that this might discend to King Iames and for plea said that well and true it is that H. 8. was seised and died seised so that this discended to E. 6. and that E. 6. such a year of his raigne granted that to Wyat and his wife in fee who granted that to the Plantiff and that Queen Eliz. presented L. only absque hoc that E. 6. died seised upon that it was demurred in law and he shewed the cause of his demurrer first because the protestations which he had taken in his replication are not good secondly the traverse is not good And it was argued for the Defendant by Bawtry Serjeant that the replication is not good because he had taken that by protestation which is traversable see the principal case of Gresbrook and Fox and see the 22. H. 6. and then for the traverse he held that to be naught First because he had traversed that which was but a mean conveyance Secondly he had traversed that which he had confessed and avoided and thirdly he had not traversed that which he ought not to have traversed and for the first it is put regularly in our books that a mean conveyance shall not be traversed and the descent here from E. 6. is but a mean conveyance and the substance is the presentation of Queen Eliz. and that ought to be traversed 17. H. 7. 2. the Prior of Tower Hills case there it said if in Assise the Tenant plead that the Plantiff was seised who infeoffed one B. who infeoffed C. who enfeoffed the Tenant that it is no
against Hutchinson and made title to present to the Church in the right of his wife and after the issue joyned and before the venire facias the wife died and the Plantiff shewed that himself had took out a venire facias in his own name and upon that Harris demurred in law because he supposed that the writ was abated but Winch was of opinion that the writ was not abated because this was a Chattel vested in the husband during the life of the wife Ferrers against English IN an action upon the case upon a promise between Ferrers and English and upon non assumpsit it was found for the Plantiff and now it was moved in arrest of judgement that the venire facias was not well awarded for it was proecipimus quod tibi venire facias Duodecim liberos et Legales homines Coram Henrico Hobert apud Westmonasterium where that ought to be Coram Iusticiariis nostris and therefore the writ being insufficient it is not amendable and for that he cited the case where the venire facias was awarded to th Coroner and that ought to be awarded to the Sheriff and this adjudged to be erroneous this case was answered that this was the custome and there was a case alledged to be adjudged 30. Eliz. between Cesor and Story where a Capias did issue out of this Court in this form Ita quod habeas Corpus ejus Coram Iusticiariis omitting apud Westmonasterium and this was reversed for error but this was answered to be in an original which ought to be precise in every point but Serjeant Crook said that because this was but judicial process and the trial is taken upon the habeas corpus that it is amendable for in all cases where the roll is right though there be an error in the venire facias yet this is amendable Sir Robert Nappers case A Rent was granted to Sir Robert Napper and if it happen that this annual rent to be behinde that then the land shall at all times be open and subject to distress of the Grantee according to the true form and effect of the said indenture and upon all the pleading a demurrer was joyned and the sole doubt was whether the last words were a distinct covenant by themselves for if they are then the obligation is forfeit for the lands are not open to distress because that the mother of Sir Robert held that till the age of 24. years or whether they are part of the former covenant and then the former worde will qualifie that because there was not any act made by him to the contrary and it was argued by Bawtrie that they are all one covenant for they charge the land with the Annuitie and he covenants that this shall be open to distress and it is all one matter and thing and is therefore a covenant and where one covenant doth depend upon another there one expounds the other so Dyer in Throgmortons case 151. and he urged many cases which are cited there and he cited the Lord Cromwels case where words of proviso are placed between words of covenants yet they will work according to the intent of the persons and there it is said that ex antecedentibus et consequentibus fiat relatio and so it appears to him that this referred to the estate which Sir Thomas had from his father and that he made nothing to impeach or to alter that and he cited the case of Sir Moile Finch though by the fine the Mannor of Beamstone was destroyed yet in the said indenture free egress and regress was reserved to the Courts for the Lady Finch afterwards an other fine was levied of all the lands and Tenements except the Mannor of Beamstone where in verity that was destroyed before and yet the judges did construe this to be a good exception because this was in verity the intent of the parties and there they made a construction upon the covenants which did lead the fine and upon the latter indenture which did direct the others and so the principal case in Althams case the judges did not only adjudge upon the first words of the lease but upon altogether and he cited the case of Hickmote where the exception extends to all the parties of the precedent deed and Hendon argued to the contrary that they were several covenants and yet he granted all the cases cited by Bawtrie but said they all stood upon this difference where it is a joynt thing and where it is a several thing as here and for that reason that ought not to be applies to that for they are distinct sentences and not joynt as is expressed in Sir Henry Finches case Coo. 6. and they ought to be construed as distinct covenants for otherwise they shall not take effect at all for then he had not any remedy for the rent which is expresly against the intentions of the parties and Crawley Serjeant said that if the two first covenants were according to the title and the last was only conditional if the rent was behinde that then it should be open to distress and the Court seemed that they were several covenants but judgement was respited for that time and the same Term the case was moved again by Hendon that they were distinct covenants and that this was the scope of the indenture and the intention of the parties that this should begin presently and secondly the two covenants are of several natures and if the third covenant be not several then it is idle for all is implied in the first and day was further given to advise of that but the opinion of the Court seemed to be for the Plantiff See after Trin. 22. Iac. Westlie against King VVEstly against King in debt the bond did bear date the 11th of February 18. Iac. and this was to perform an award Ita quod the ward be made before Easter of all controversies depending between them in the Star chamber and the Defendant pleaded that there was no award made in the mean time and the other shewed the award and assigned the breach and the Defendant replied that before the award was made c. upon the 16th of March they discharged the Arbitrators and so concluded as at the first they made no award and now Serjeant Davenport moved that he had not maintained his bar quod non fecerit tale arbitrium and have given the discharge in evidence for now it appears that the bond is forfeit but Hutton said that the Plantiff ought to have shewed this discharge and so he had shewed the forfeiture and he said further that the rejoynder is an affirmation of the bar if they were discharged then they made no award and this notwithstanding shewed a forfeiture of the bond but not upon the point which the Plantiff had alledged and Winch said though this is is so yet it appears that the Plantiff had cause of action by all the record before and day was given over in the case
in capite and others in Soccage and he made a devise of all his fee simple lands and left only his lands in tail to descend to the heir which doth not amount to a full third part this is a good devise of all the fee simple lands and this case was also admitted that where the Lord Norrice gave land to Sir Edward Norrice his youngest son and to the heirs of the bodie of the father and then the Lord Norrice died and after Sir Edward died without issue that the son of the eldest Brother who was then dead shall take that as heir in tail and that he in this case had that by a descent from Sir Edward Norrice his Vncle which also doth clearly prove that in this Sir Edward Norrice son of the Lord Norrice was in this case Tenant in tail The residue of Easter Term in the two and twenty year of King James Stephens and Randal IN replevin between Stephens and Randal who made Conusance as Bailiff to the Earl of Bath and he shewed that such land was parcel of such a Chantrey which came to King Edward 6. by the Statute of 1. Edward 6. and also he pleaded the saving of the said Statute by which the right of others was saved and pleaded all incertain and shewed that so much rent was behinde upon which he made Conusance as c. to which the Plantiff replied that the land is out of the fee and signiorie of the Earl of Bath c. and this was ruled to be no plea for he confessed so much in his avoury and this avoury is not for rent service for the signiorie is extinct by act of Parliament but this is for rent reserved by the saving of the act of Parliament and this is a rent seek and yet is destrainable for the priviledge which was before but he may traverse the tenure that at the time of the making of the Statute nor never after this was holden of the said Earl of Bath Priest and King Priest and King in an action of which was entered between them Trin. 21 Iac. Rot. 3595. and this was debated between the Iudges and the Prothonotaries and the case was that two were bound for the appearance of an other and judgement was given against the debtor now if upon the capias he come and offer his bodie and the Plantiff refuse that yet that discharges the sureties but the Prothonotaries said that notwithstanding this refusal he may take a Capias against him within the year because that at the first he might have had a fierie facias or an elegit quere of that but Winch thought that in this case he ought to have a fierie facias but if he had come upon the Capias and had no suerâ—tes and he refuse to take him and this is so entred now quere if he had not discharged him Hendon moved the Court for a prohibition to the spiritual Court and suggested that one had libeld in the spiritual Court for a legacie and the Executor shewed that he had not assets to discharge the debts of the Testator and that Court would not allow this allegation and upon this he prayed to have a prohibition and it was the opinion of the Court that no prohibition shall be granted for the legacie is a thing meerly which is determinable in the spiritual Court and no other Court may have Conusance of that and this is also a thing which doth consist meerly in the discretion of the Court and resolved that in a thing which meerly doth rest in discretion of the Court in this case no prohibition shall be granted Henry Good against Thomas Good IT was agreed in the case by the Court between Henry Good and Thomas Good that if the devisee of 500. l. sue in the Marches of Wales for this legacie that a prohibition is grantable for though the Court of the Common pleas had no power to hold plea of that yet because that the thing is only triable in the Ecclesiastical Court a prohibition may be granted to reduce that to its proper Court and though the instruction of the Court of the Marches be to hold plea of all such things wheresoever there is no remedie at the Common Law yet this is to be understood of matters of equitie and not to take the jurisdiction from the spiritual Court for in verity the King may not do that by his Letters pattents but yet the Court agreed that if the Executor do suffer a decree against him in the Court of the Marches and not come to them at the first to be releived it is now meerly in the descretion of the Court whether they will grant that or no for that is a means to lengthen suits and to make the more delay before he do recover his legacie If a Capias ut legatum issueth to the Sheriff to take the partie and to enquire what lands and Tenements he had and the Sheriff findes by inquisition that he is seised of many lands and continues possession in them and the Sheriff do out me I shall have an action of trespass John Marriots case SErjeant Crawley moved this case in arrest of judgement in the case of Iohn Marriot and he declared upon a contract to table with the Plantiff at Ashton in Northamptonshire ad tunc ibidem superse assumpsit to pay 4. s. by the week for his diet and Crawley moved that this ought to have bin tried in Northamptonshire for these words ad tunc et ibident refer to Northamptonshire which was next before and not to London Hutton said that it ought to refer to London otherwise it was idle and it is to be intended of the time and the place where the promise was made but it was said if the issue had been whether he was tabled or no this shall be tried there Giles Bray against Sir Paul Tracie GIles Bray brought an action of waste against Sir Paul Tracie and in his declaration he conveyed a good tearm to the Defendant and a reversion to himself and upon a general issue a special verdict was found to this effect that Sir Edmund Bray was seised of this land in his demeasne as of fee and he being so seised 16. Eliz. made this lease for divers years to I. S. and he being so seised of the reversion conveyed that to the use of himself for life without impeachment of waste and then to the use of Edward Bray his eldest son and to Dorothie his wife and to the heirs males of the said Edward upon the said Dorothie to be ingendred and then Edward died having issue in tail the Plantiff and then this lease was assigned to Tracie and then Dorothie died and then the waste was committed and then Edmund the Grandfather died and the question was whether in this case an action of waste will lie or no. The argument of Serjeant Harris HArris argued that the waste doth lie for the priviledge or despensation which was annexed to the
plea for the Plantiff to say that he was seised till the Defendant disseised him absque hoc that C. enfeoffed him and for that reason he ought to traverse the feofment made by B. for the other was but a mean conveyance see Dyer 107. in Trespass the Defendant conveyed to the donee by 5. or 6. discents by dying seised of the estate taile in every of them the Plantiff confessed the intaile and conveyed to him by feofment made by the heir of the donee which was a discontinuance and took traverse to the dying seised of the same feoffor and ruled to bee evil for he ought to traverse the most antient discent 43. H. 3. 7. Secondly it is evil because he had confessed the seisin of E. 6. and the grant by the same King to Wyat and so had confessed and avoyded the seisin of the same King and then the Law will not suppose that E. 6. purchased that again and for that the traverse of his dying seised is evil when he had sufficiently confessed and avoided that before as Dyer 336. in Vernons case a discent was pleaded to the heire from his ancestor the other party said that the ancestor devised that to him absque hoc that this discended to him as son and heire and ruled to be evil for a traverse needs not when he had confessed and avoyded that before Vide 14. H. 8. Sir William Meerings case 26. H. 8. 4. by Fithzherbert but Brook in the abridgement of the same case said that if the traverse is evil then he had waved the plea before and all was evil 7. E. 4. by Littleton for hereby the representation of Queen Eliz. she had gained the inheritance to the Crown and then the traverse being evil he had waved the former plea which was good without traverse and this seisin in the Crown is not answered but by way of argument as here 14. H 6. 17. he ought to traverse absque hoc that he died in his homage 20. E. 4. 5. 35. H. 6. 32. Serjeant Iones to the contrary and as to that which hath been said that the presentment is alleaged to be in jure coronae and the confessing the presentment is a plea by way of argument to which he answered that the record is not so but the seisin of the advowson is alleadged by discent to Elizabeth Queen by force of which she was seised in jure coronae and Iones argued that the traverse is good for every plea in barre ought either to be traversed and denied or confessed and avoided and here that ought to be traversed Dyer 208. 312. in avowry for a rent charge and seisin was alleadged in the grantor of the land in fee and the Plantiff said he was seised in taile he ought to traverse that he was seised in fee and a good traverse Hill 2. Iac. in C. B. Rot. 1921. Edwards against D. it was pleaded that such a man was seised in fee of a rent charge and the other confessed that he was seised in fee and that a long time before he enfeoffed one I. S. there he ought to traverse that he was seised at the time of the grant see the new book of Entryes Tavener and Gooches case in a Qu. Impedit And a note by the Lord Cooke also he said that after the grant there may be an usurpation and so the dying seised in the case of an advowson in gross ought to be traversed â—e 21. E. 4. 1. 20. E. 4. 14. and as to that which hath been said against the protestations he answered it ought to be traversed and for that the rest ought to be taken by protestation and in some cases the conveyance is traversable see Cromwels and Andrews case And so he concluded and prayed judgement for the Plantiff Note that he said that it was adjudged in that Court 2. Iac. in the case of the Bishop of Winchester that two usurpations gaine the advowson from the King And the reason was because the King by an usurpation may gaine an advowson in him out of a Common person and if the King Vsurpe and the right patron present he is remitted Hobert by such usurpation the possession is gained from the King but not the right and note that upon the argument in the principal case by Bawtry and Iones it was ruled by Hobert Warberton and Hutton that if the Defendant do not shew better cause by such a day judgement shall be given against him and Hutton said that he had studied the case and found no doubt but that the traverse is good Winch was absent in the Chancery M. 19. Iac. C. P. IT was moved for a prohibition by Harris Serjeant to the Court of Audience because that the Plantiff was sued there for saying to one thou art a Common Quean and a base Quean and Harris said that a prohibition had been granted in this Court for saying to one that she was a piperly Queen and it was the case of Man against Hucksler and Finch said though the words are not actionable in our Law they are punishable in the spiritual Court for the word Quean in their Law implies as much as whore but Hobert said that this word Quean is not a word of any certain sense and is to all intents and purposes and individuum Vagum and so in certain see more after Note that it was said by Justice Warberton that it was adjudged in the case of one Ablaine of Lincolns Inne that if a man made a lease for years rendering rent and the lessee or a stranger promise upon good consideration to pay the rent that in this case no action upon the case will lye for it is a rent and is a real thing and Hutton Justice being only present agreed this was upon the motion of Finch Serjeant Mic. 43. Eliz. in the Kings Bench in an action upon the case he declared how he let certain land to the Defendant for years in consideration of which the Defendant promised to pay him for the farm aforesaid 20. l. and Hitcham moved that the action will not lye because it appears to be for a rent for which an action of debt lyes but by Gaudy Fenner and Clench it is not a rent but a summe in gross and for that reason because he promised to pay that in the consideration of a lease cleerly an action upon the case lyes but Sir John Walter replyed that a writ of error was brought of this case of Simcocks in the exchequer chamber and the matter in law was assigned for error and it was ruled that no action upon the case will lye for Walmsley said this was a rent for of necessity there ought to be supposed a commutation between the lessor and lessee and that the lessor demanded of the lessee how much he would give for that and then he answered 20. l. this made an entire contract and for that reason an action of debt lyes and not an action upon the case and Savil and
simple shall alwayes be supposed to have continuance if the contrary is not shewed to that he answered that is not so for the book of the 7. H. 7. 8. if in barre of assise the Tenant said that I. S. was seised and gave this is not good because he had not shewed quod fit seisitus existens dedit c. which being in a plea in barre is more strong then in a declaration to prove that a fee shall not be intended to have continuance without an express allegation and so he concluded that the declaration is naught but by Hobert Winch and Hutton it is very good notwithstanding this objection and Winch cited the 13. Eliz. in Ejectione firme where the life of the person was not cleerly alleadged but the declaration only was that the lessor was and yet is seised which was a sufficient averment of the life of the person and so the declaration is good and another exception was taken to the declaration by Hitcham Serjeant because that the Plantiff had declared that the Defendant had made conney borroughs and with the aforesaid conneys had eat up the grass where he had not alleadged any storeing of the coney borroughs before with coneys and then it is impossible they should eat up the grass to the prejudice of the Plantiff but to this it was answered by Serjeant Attoe that though the declaration as to that is naught yet the diging of the coney borroughs is to his prejudice and sufficient to maintaine the action which the Court granted and as to the matter in law Attoe argued for the Plantiff and recited the case to be that E. 3. granted to the Deane and Chapter of Windsor that they shall have free warren in the lands which yet they had not purchased and of which they were not seised at the time whether this is a good grant and shall extend to take effect after the purchase see Buckleys case and be argued that it is not a good grant and he put a difference between a warren and other priviledges which are flowers of the Crown which may be granted infuturo but a warren never was a flower of the Crown and for that reason a grant de bonis et cattallis fellon et fugitivorum may be granted and yet not be in esse at the time of the grant for it is a flower of the Crown and it is said 44. E. 3. 12. that the King may not grant a warren in other mens lands but only in the land of the grantee and upon this he concluded that this grant shall not extend to land after purchased and the rather because it is in the nature of a licence which shall be taken strictly see 21. H. 7. 1. 6. And Hobert chief Iustice said that this word demeans is derived of the French words en son manies and though the Lord of the mannor had the waste in his hands yet he had not the common and as to the confirmation by Ed. 4. they all agreed that this will confirm nothing to him but what was granted by E. 3. himself and then as to the licence pleaded that is of no effect for first the licence is pleaded to be made to one Sir Cha. Haydon and the Defendant did claime under him and this licence was made by the father which will not binde the son who had the land to which the common is appendant after the death of his father for a common may not be extinguished without deed and Hobert and all the Court agreed that the licence of the father will not binde the son and by the Court if nothing is shewed to the contrary within a week judgement shall be given for the Plantiff Davies against Turner DAvies brought a replevin against Turner and he declared of the taking in a place called the Holmes and the Defendant made conusance as bayliff to Sir George Bing for that one Clap held certain land of him by 20. s. rent and suite of Court and for the rent he avowed and alleadged seisin by the hands of Clap the Plantiff said that Chap held 40. acres of land by 9. s. rent fealty and suite of Court absque hoc that he held modo et forma and upon this it was demurred and the single point was this in auowry the Tenant alleadged c. and the question is whether he ought to traverse the tenure or the seisin and it was argued by Henden Serjeant that he ought to traverse the seisin and that the traverse of the tenure is not good and besides here is double matter for the conclusion sounds in barre of the avowry and in abatement of the avowry see a good case 18. H. 6. 6. for the falsness of the quantity of the land and the falsness of the quantity of rent the on goes in barre the other in abatement of the avowry 47. E. 3. 79. 5. H. 6. 4. and affirmed for good law And as to the second point he held the seisin to be traversable and not the tenure and first he said there was a difference between pleading in barre of avowry and in the abatement of the avowry for in barre of the avowry there the seisin is is not traversable by Frowick 21. H. 7. 73. which opinion he held for good law for it is agreed in Bucknels case Co. 9. he may not say that he held of a stranger absque hoc that the avowant was seised but otherwise it is when that goes in abatement of the avowry Secondly he said that the seisin is the principal thing and the principal thing ought to be traversed for if a man had seisin of many services seisin shall never be ayded till the Stat. of magna charta see Bucknels case Cook 9. and here the seisin is the most meterial thing and the most proper see 37. H. 6. Bro. Avowry 76. ne tiendra is no plea for a stranger to the avowry but he ought to answer to the seisin Thirdly the cause for which the seisin is traversable see a notable case per Danby 7. E. 4. 29. for the beginning of the services may be time beyond memory c. and for that reason may not be tried see 20. E. 4. 17. 22. H. 6. 3. 26. H. 6. 25. by Newton he may traverse the tenure Attoe contrary 13. H. 7. 25. to this it was answered that the number Rolle may not be found 5. H. 7. 4. 13. H. 6. 21. 21. H. 7. 22. by Frowick and Kingsmil Harvey to the contrary the case was that the Defendant made conusance as Bayliff to Sir George Bing for this that Chap held a messuage c. by certain rent and by suite of Court and the other said that he held 40. acres by 9. s. and suite of Court absque hoc that he held the messuage and the land modo et forma and he argued that it was a good traverse of the tenure and not double which was granted by Hobert and by Winch being only present and Hobert said true
that all such recoveryes shall be void and shall be taken for fained recoveries and this may not be imagined a fained recovery where he in remainder in tail is vouched by him who is Tenant for life Jennings case Coo. 10. and such recovery as is there resolved is out of the Statute of the 14. Eliz. and is good by the Common Law and so in our case but admitting this to be within the Statute of the 11. of H. 7. yet the proviso of the same Statute had made that good for there is an express proviso that a recovery with the assent of the heir inheritable if this appear upon Record this shall not be within the Statute and in our case this is with the assent of the heir inheritable and also this appears to be of record and so the recovery is out of the danger of the Statute of the 11. H. 7. See Doctor and Student a book which was written but a litle time after the making of this Statute and Dyer 89. Vernons case and he said that the intent of the same Statute and of the proviso of the same Statute was to have issues and heirs and not termors who had only a future interest to falsifie recoveries and so he concluded that the recovery is out of the same Statute and that the proviso of the same Statute had made that good by the assent of the heir but admitting this should be against him that this recovery shall be within the Statute yet the lessee in our case shall not falsifie nor take advantage of the forfeiture by force of the same Statute but it hath been objected by Harvy that the wife in this case had only an estate for life or Tenant in tail after possibility of issue extinct and he answered that the resolution in Beamounts case Coo. 119. is contrary for it is there expresly agreed that she was Tenant in tail after the fine leavied by the issue and so was it also resolved in Pophams case 9. Eliz. but there it was doubted whether she was Tenant in tail within the 32. H. 8. who might make a lease but all agreed that she was Tenant in tail who may suffer a recovery and binde the remainder and then when the feme suffers such a recovery as in our case that recovery shall take away a term for years which was made by the issue in tail Mich. 20. Jac. C. P. in the life of his mother notwithstanding she was a joynteress within the 11. H. 7. also he said that this lease for years being made by Henry Mark-Williams the son who was heir to the estate in tail and also to the reversion in fee being made by deed indented rendring rent this shall be a lease which issued out of the estate in fee simple and not out of the estate tail and this shall be out of the estate tail by estoppel being by deed indented for an estate shall not enure partly by way of interest and this lease to begin after the death of the feme he may not take advantage of the forfeiture for though the words of the Statute are that all such recoveries shall be void yet this shall not be void without entry and he who will have benefit by this ought to be mabled to enter presently so soon as the recovery is suffered for as there ought to be a person in esse who shall take benefit of the same Statute as appears by Coo. 3. Lincoln Colledge case so there ought to be a present estate in esse at the time of the recovery for the words of the Statute are to whom the interest shall appertain but in our case the interest doth not appertain to the lessee who had only a future term and therefore he shall not take the benefit by any forfeiture within the Statute of 11. H. 7. and the rather in our case because there is a rent reserved also all this matter is found by special verdict what estate the son haâ— when he made the lease by indenture Dyer 244. Coo. 155. and Bredons case in Treports case lessee for life and he in reversion by indenture let for years this is no estoppel and it shall be said to be the lease of one and the confirmation of the other and here the lease shall be said to issue out of the reversion in fee and not out of the estate tail and he vouched a case adjudged 10. Jac. when Flemming was chief Iustice of the Kings Bench between Errington and Errington and the case was that a man conveyed land to the use of himself and his wife in tail the remainder to his right heirs and had issue a son and a daughter and he died and the son let for years to begin after the death of his Mother and he died without issue and the daughter leavied a fine and the wife who was Tenant in tail died and the question was whether this lease for years issued out of the estate tail by way of estoppel for then the Conusee shall not avoid this but it was adjudged this lease was drawn out of the reversion in fee and the Conusee of the daughter shall avoid that which is all one with our case but admit that this lease is good by estoppel out of the estate taile yet he shall not take benefit of the forfeiture within 11. H. 7. and this differs from Sir George Browns case for there the Conuser entered by vertue of a remainder and not by the estate tail which passed to him by estoppel and upon that he concluded that if this is an estate meerly by estoppel he shall not have benefit by that Pope and Reynolds before NOw the case between Pope and Reynolds which see before was moved again by Ashley for the Plantiff in the prohibition and the case was that he was owner of a Park and the Park had been time beyond memory replenished with deer till the 10th of Eliz. at which time that was disparked and that the owners had used before the disparking to pay a Buck in Summer and a Doe in winter in full satisfaction of all Tithes due to the Vicar and the Parson had libelled in the Ecclesiastical Court for Tithes in kinde and also traversed the prescription and it was found for the Plantiff in the prohibition and it had been moved in arrest of judgement that notwithstanding this prescription is found for the Plantiff yet he shall not have judgement for two causes First because gross Tithes belong to the Parson and not to the Vicar for the Vicaridge is derived out of the Parsonage to this he answered that for the most part every Vicaridge is derived out of the Parsonage but it is a meer non sequitur that this doth for the Vicarage and the Parsonage may have several patrons Fitzh 45. also a Vicarage may be time beyond memory as in our case 40. E. 3. 2. 7. and Fitz. juris utrum a Vicar may have a juris utrum and
that then his two sons shall pay them and if it happen that either of them die before his debts and legacies paid or before either of them do enter into his part that thou the other shall have all the land in fee and after the devisor died and in the life of the mother the eldest son released to the youngest all his right title Claim and demand to the land which was devised to him by his father and after the wife died and two points came in question in this case First whether this limitation is good Secondly whether the release is good and it was argued by Richardson Serjeant that this limitation of the Statute by way of devisee is good and he vouched Dyer 330. Clarks case and 4. Eliz. Goldley and Buckleys case a man devised to his son and his heirs provided that if his personal estate did not suffice to pay his debts and legacies that then his lands shall be to another and he vouched Brown and Pells case which was adjudged in Banco Regis the case was that a man had two sons William the eldest and Thomas the youngest and he devised his lands to Thomas his son and his heirs provided that if Thomas died without issue living that then William shall have the land and it was resolved that this was good to William by way of executory devise and in that case doubt was moved whether if Thomas suffer a recovery whether this shall take away the estate of William and it was holden by all the Court except Doderidg that it shall not but all agreed that this devise upon the future contingency is good and so he concluded that if the youngest son die in the life of the Mother and before the legacies are paid the land shall remain to the Plantiff according to the intent of the devisor but the other doubt is when the Plantiff did release all his right and claim to the other whether this release will extinguish this future possibility and he held that it will not and he said that he had seen the case of Lampet Coo. 10. and there the release of a possibility is penned as in our case and if any word discharge this possibility it is this word right but if the resolution of that book had not been against him he would have argued that this right was not sufficient to extinguish this future possibility but that there ought to be a more apt and proper word but he said he would not argue against books but he said that which he would insist upon was the distinguishing of possibilities for there are two manner of possibilities the one is Common and ordinary the other is more remote and forreigne And first there is a possibility which is Common and necessary and this depends upon an ordinary casualty as a lease for life the remainder to the right heirs of I. S. for it is apparant that the right heirs of I. S. may take by this and such a possibility may be released and a possibility which is remote and forreigne is as if a lease be made for life the remainder to another during the life of the lessee for life or a lease for life the remainder to the Corporation of B. those remainders are void but yet by possibility they may be good for in the first case the Tenant for life may enter into religion and in the latter case the King may make Corporations and yet because such possibilities are not usual the remainders are void see Coo. 2. Chamleys case where such a remote possibility may not be released if a man give land to one which is married and to another woman which is married and to the heirs of their two bodies ingendred this is a good estate tail for there is a common possibility that they may intermarry but if the gift be to a man and to two women who are married and to the heirs of their bodies ingendred they shall not have an estate tail executed for it is a remote and forreigne possibility and an imbrodery of estates which the law will not allow nor respect see the Rector of Chedingtons case that such a possibility as in our case may not be released for first here the mother ought to be dead before the Plantiff shall have land Secondly legacies ought to be paid Thirdly Thomas ought to be dead and till all these possibilities hap the Plantiff shall have nothing in the land and for that it is a remote possibility which is not gone by the release for as it is said when a possibility shall be gone by a release there ought to be a good foundation upon which the release may operate secondly the possibility which is released ought to be necessary and Common but in our case it is not necessary that the son shall enjoy it in the life of his mother and also the mother may in a short time pay the legacies and then neither of the sons shall have the land by which circumstances it is apparant that this is not a Common or an ordinary possibility but is a remote and forraigne expectancy which shall not be gone by this release and this differs from Lampets case for there was a possibility of a Chattel which as it may easily be created so it may easily be destroyed but in our case it is a franktenement which as that requires a greater ceremony in the creation and for that it will require a greater matter to destroy and to extinguish that and it is said in Woods case cited in Shelleys case Coo. 1. that if a man covenant with A. that if I. S. infeoffed him of the Mannor of D. that then he will stand seised to the use of him and his heirs of the Mannor of B. and the Covenantee died and the said I. S. infeoffed the Covenantor in such case the heir shall be inward and yet it is only a possibility which descends which possibility of an use may not be discharged or released and yet in that case there was a possibility which is more Common and ordinary then in our case for there was a possibility that I. S. should make the feofment and so say a good foundation upon which the release may operate and he put the case that I. shall let for so many years as I. S. shall name if I. S. name it is good and yet he held if I. S. release before the nomination that this release is meerly void because he had only a possibility and as to Digs case Coo. 1. there a power of Revocation may be released and good reason for the Covenantor who released had the bird in his own hand and for that it was no remote possibility but there it is said that if the power be limited to an estranger there the stranger may not release and he also agreed Albanies case for there the power to release was upon the death of a man only but in our case it is upon death and other
prayed judgement in the case for the Defendant Finis M. 20. Jac. The Bishop of Glocester against Wood before NOw the case between the Bishop of Glocester and Wood was adjudged Hobert and Winch being only present and first it was resolved by them that when the Bishop let parcel as 20. acres for life and after he lets the Mannor it self to another rendring rent in this case the rent issues out of the intire Mannor for if in debt for the rent the lessor do declare upon a demise of the Mannor omitting the reversion of this parcel the declaration is evill and upon non dimisit pleaded it shall be found against him Secondly this they held that the Herriot reserved shall go with the reversion and if this do not go with the reversion to the lessee of the Mannor yet the Plantiff shall not have the Herriot and then though the Defendant had not good title to the Herriot yet if the property of the Herriot do not appertain to the Plantiff he shall not have a trover and conversion for the Defendant had the first possession and judgement was commanded to be entred for the Defendant if no other cause was shewed before next thursday Hill 20. Jac. C. P. Bulloigne against William Gervase Administrator BUlloigne brought an action of debt upon an obligation of 12. l. against William Gervase Administrator to I. S. and the Defendant pleaded that the intestate died outlawed and that the outlawrie alwayes continued in force and upon this the Plantiff did demur generally and it was argued by Attoe for the Plantiff for the plea is not good for this is a plea only by way of argument that he shall not be charged for this debt because he had not assets and in this case this outlawrie ought to be given in evidence upon nothing in his hands being pleaded and it ought not to be pleaded in barre for by possibility the outlawrie may be reversed and then the Administrator shall be charged if he had any goods and he vouched a case in this Court Trin. 27. Eliz. Rot. 2954. Worley against Bradwel and Dame Manners his wife Administratrix to Sir Thomas Manners and the feme pleaded outlawrie in the intestate and the Plantiff demurred generally and it was adjudged to be no plea and note that the record was brought into the Court and read accordingly Hitcham Serjeant to the contrary the record in Manners case was not well pleaded for the Defendant only shewed that a Capias ad satisfaciendum issued against the Testator and did not shew any recovery or judgement against him and that was the reason of the judgement in that case and the Plantiff here ought to have demurred specially as the case of 27. of Eliz. for otherwise he shall not have advantage of this plea and the plea is only evil for the manner for it is apparant that by the outlawrie of the Testator all his goods are forfeit and this is the reason of the book of 16. E. 4. 4. it is a good plea in an action of debt to plead an outlawrie in the Plantiff and to demand judgement of the action and not judgement of the writ for the debt is forfeit to the King by the outlawrie Hobert Hutton and Winch the president shewed by Attoe is not answered for though the pleading of the outlawrie is without shewing of a recovery and judgement yet the outlawrie is good till it is reversed and Hutton said that in some cases an Executor or Administrator had goods though the Testator died outlawed as if the Testator let for life rendring rent and the rent is behinde and after the Testator is outlawed and dies this shall not be forfeit but his Executors shall have the rent and if a man make a feofment upon condition that the feoffor pay 100. l. to the feoffee and his heirs or Executors and the feoffee is outlawed and the feoffor pay the money to his Executors as he may well the Executors and not the King shall have that also if the Testator is outlawed and he devise his land to his Executors to be sold these moneys shall not be forfeit and they shall agree that the plea was not good notwithstanding the general demurrer for he who will barre another by an argumentative plea his plea ought to be infallible to all intents and purposes and so it is not here for the Executors and the Administrators may be charged by the having of goods though the Testator was outlawed and for that the plea of the Defendant is not good in substance and the general demurrer is good by Hobert and by him if we suffer this plea then the Defendant will keep the goods and not reverse the outlawrie nor yet satisfie the King also if he had not goods the Defendant may plead plene Administravit or nothing in his hands and give this outlawrie in evidence See 8. E. 4. 6. 3. H. 6. 32. 39. H. 6. 37. by the opinion of Prisot and also see the case in E. 4. 5. a case to this purpose and also note well that it was said concerning the case of Manners that a writ of error was brought of that afterwards and that the case remains till this day undetermined Buckley against Simonds Ent. 18. Jac. Rot. 2120. NOw at this day the case of Buckley and Simonds was argued by Iustice Hutton and by Winch and the case was briefly this Anne Buckley Administrator to Andrew Buckley her Husband was Plantiff in a quare Imp. against John Simonds John Prior and Robert Pierce Alias Price for disturbing her to present to the Church of D. and shewed that Andrew Buckley Grandfather of the Husband of the Plantiff was seised of the said advowson in gross and presented one I. S. and he died after whose death the advowson discended to Richard Buckley and that the Church became void and that one Richard Williams usurped upon the said Richard Buckley then being within age and that Richard Buckley also died and by his death the said advowson discended to Andrew Buckley as brother and as heir to Richard and that the Church became void and before the presentment by Andrew and within 6. moneths Andrew died and that the Administration of the goods of Andrew were committed to the Plantiff and that she presented within 6. moneths and the Defendants disturbed her and the Defendants pleaded in barre and confessed the seisin of the Grandfather as is alledged in the declaration and they said that the said Andrew Buckley 14. Eliz. by his Indenture made between the said Andrew Buckley on the one part and John Preston of the other part by which the said Andrew Buckley by the same Indenture covenanted with Preston in consideration of a marriage to be had between John Buckley and Elizabeth Preston daughter of John Preston he covenanted with him and his heirs that immediately after he death of him and of his wife the said advowson inter alia shall be to the said John Buckley
and died by whose death the Church became void the which was the first and the next avoydance after the grant and Harcourt presented Cardon and that the said Arthur Basset so being seised in fee 18. Octobris 17. Eliz. by his will in writing devised to Iohn Basset his son the first and next avoydance of the Church aforesaid which first and next avoydance hapned after the death of the said Arthur Basset and that the said Iohn Basset was possessed of the said next avoydance and the said Chardon being incumbent 29. of September 37. Eliz. he was elected Bishop of Down in Ireland and he being so Elect the Queen by her letters 37. of her Raign considering the smalness of the said Bishoprick that it was not able to maintain him in his episcopal dignitie ex gratia sua speciali concessit Lycensavit et potestatem dedit to the said Chardon Bishop elect that he with the said Bishoprick the rectory of Tedbome in comendum ad huc recepire et fructus de c. in usus suos convertere disponere et applicare valeat et possit habendum that in Comendam for 6. years and within the 6. years he was consecrated and after the Term of the 6. years the Church became void per legis Anglie and that the Queen by her prerogative presented one Bee who was admitted instituted and inducted and the Plantiff conveyed from Iohn Basset his title by his grant of the next avoydance and shewed that the said Church became void by the death of Gee and that the vacation by the death of Gee is the next avoydance after the death of Arthur Basset by reason whereof the Plantiff presented and was disturbed and upon his decla ration Edwards the patron demurred and the Bishop claimed nothing but as ordinary and Manering pleaded and confessed the seisin of Arthur Basset and the grant to Manwood and the presentation by Harcourt of Chardon and the devise to Iohn Basset but he shewed that after the death of Arthur Basset the Acre to which the advowson is appendant descended to Thomas Basset as c. and he being so seised the Church became void by the death of Chardon who had the next avoydance after the death of Arthur Basset and that this remained void by 2. years after his death by which the Queen presented by Lapse the said Gee who was admitted c. and Thomas Basset conveyed that to Edwards and that became void by the death of Gee and that he presented the said Mannering c. absque hoc quod praedicta vacatio Ecclesiae praedictae post Mortem de Gee was the first and next avoydance after the death of Arthur Basset as the Plantiff had alleadged and upon this bar the Plantiff demurred and it was argued by the Councel of both sides on several dayes and in Michaelmas Term ensuing it was argued by the Court but because that Harvey was newly made Iustice he did not argue the case but Iustice Hutton began The argument of Justice Hutton ANd Iustice Hutton after a recital of the case said that his opinion was that the Plantiff should be barred and in the first place it is to be considered whether the King had any title at all to present by the Creation of Chardon to be Bishop Secondly admit that he had title whether he had dispensed with that and by his dispensation he had satisfied his prerogative Thirdly admit that the King had title and that this was not satisfied with the Commendam whether the grantee had lost his turn and as to the first point it ought to be agreed that when a parson is made a Bishop that he is discharged of the Church by the Common Law and so is the 45. Edw. 3. 5. and Dyer 159. petit Broo. 116. and this is an avoydance by Cession and for any thing that I see in our books the King had not any title to present except that he himself was patâ—on but because that did not happen fully in question here I will not deliver any opinion but I will say what our antient books do lay 41. Edw. 35. adjudged that the King shall not present to a prebendary where the prebend was made Bishop and the tithe which the King had to present was by reason that the temporalities of the Bishoprick of which he was prebend was in his hands and see the 7. H. 4. 25. a good case 11. H. 4. 37. Dyer 228. and for Brooks presentation 61. that is but the report of the Chancellor who had that in presentation but our Common Law doth not warrant any such thing and then for the second point whether the King had dispenced with his prerogative and in the first place we are to know that these Commendams were at the first but to see the cure served and by the opinion of Pollard the ordinary is to see the cure served though that be charged with such rents that none would have it and for that Commendams were at the first good but now if the King had title then that began per the consecration otherwise he shall never have it and so is 41. Edw. 3. 5. if consecration doth not give that he shall never have it and hereby his grant to hold that in Commendam he had dispenced with this prerogative and if this had been granted to him for his life none will deny but that he had dispenced with his prerogative and shall never take advantage of that again afterwards and no more in this case for he is incumbent to all intents and purposes for Fitz N B. 36. he may have a Spoliation and yet in this case he is parson and Bishop and now that the King may dispence with that it is not to be doubted and I will compare that with the like cases A. 6. Eliz. Dyer 252. where the King granted the Custody of the land and heir of his Tenant if he died his heir being within age and this grant was to Cantrel and it was agreed to be good and Wardship is as Royal an antient perrogative as any appertains to the Crown and 3. H. 6. title grant 61. the King may grant the temporalities of the Bishoprick before it is void which in my opinion is Cosen German to our case out of which book I conclude the King may dispence and by the dispensation he is full parson and this is for his life for the King may not make him incumbent except it be for life like to the case of Dyer fo 52. where the patron and the ordinary made a confirmation of a lease for part of the time which was made by the parson and agreed that this shall stretch to the whole time and no better case may be put then the case of Packhurst in Dyer 22. 8. where Packhurst was incumbent of the Church of Cleave and was made Bishop of Norwich but before he was created Bishop he had a dispensation from the Arch-Bishop to retain that in Commendam for 3.
years notwithstanding his advancement and he resigned during the 3. years and issue there taken upon the resignation and this case proves all the partes of our case first that the King may dispence and that by his dispensation he is compleat person to resign and if he do resigne during the years the King shall not have the prerogative to present again for that was satisfied with the dispensation and also when the King came to his prerogative by subjects means he ought to take that as it falls for otherwise he loses that quite vide Bastervils case Coo. 7. and another reason is if it be not satisfied then the King shall have another which is mischievous and this being a new case such president is not to have more favour then the necessitie of the Law will require and so my opinion is that it is all one as if it had for life and there is a good case 9. Ed. 3. 20. where the King had 2. presentments vide the case but it was upon another reason but the case of 21. H. 7. 8. Frowike where the grantee of the next avoydance had judgement to recover and the incumbent resigned so that it is the second presentment yet the Plantiff shall have the effect of his judgement and he had a writ to the Bishop quere the application for I did not well heare that but in our case if the prerogative of the King was not satisfied yet it ought to appear that when he presented Gee he had no title but that was an usurpation and if the King was not satisfied then the Plantiff shall not have judgement for then Gee was an usurper and upon that declaration the Plantiff shall be barred but now for the last point admit that the King was satisfied of his prerogative by his presentation of Gee whether the Plantiff had lost his course I think he had in the first place the words of the devise are the first the next avoydance which shall hap after the death of Athur Basset now it hath been objected that the King had the first by his prerogative and therefore he shall have the second I think in this case Brook presentation 52. is a strong case where a presentation was granted to one and after to another when the first is void and ruled that the second grantee shall not have the second and so Dyer 35. it ought to be taken according to the words for otherwise he shall not have any for modus et Conventio uniunt Legem and the case of quare Impedit 152. proves something to this purpose for a man had 4. advowsons and granted the next which should hap of them to I. S. and he died and the heir assigned the wife for her Dower one Mannor to which the advowson was appendant which first became void and ruled that the Grantee shall not have that against the feme and then it was moved by Thorpe that he shall have the second but Shard said certainly never which proves that if the turn of the Grantee was taken from him by the indowment of the feme he had lost that for ever the like case is the 15. H. 7. 7. 14. H. 7. 22. moved by Mordant that the Grantee of the third shall have the fourth when the wife is indowed of the third which case is brought to prove a case which without question is not law and that is that the King being Gardian of the Grantee of the next avoydance and he grant that in this case the heir shall have that at his full age which without question is now law for by the same reason his course may be the 20. but there are two rules from this which seem to cross this opinion one rule is that the words of the grantor shall be taken most strong against himself and the other that the Grantor shall not be received to avoid his own grant as it is said in Davenports case Coo. 8. but yet these rules are to be intended where the words are compleat for as the case is the 13. Ed. 3. Grant 65. that where the husband and his wife are joynt Tenants for life and he in reversion grant the lands only which the husband held in this case nothing passeth for the reversion was expectant upon a lease which the husband and wife held nay I will cite one case where a man by his own Act shall avoid his own grant in a quare Impedit Elmes against Taylor where a man was seised of the Mannor to which the advowson was appendant and he granted the third next avoydance and after against his own grant he usurped and it was adjudged that by this usurpation he had gained the advowson to be appendant to his Mannor again and that the Grantee had lost his course and so the case in Dyer 283. where the Church was void and the patron granted the next avoidance tunc vacant to another and this pro hac unica vice tantum and there resolved that the grant was not good and that it should not extend to another and so in our case it shall not extend to a second another reason is if the King had a prerogative he is bound and every derivative estate under him for he shall not be in better case then the grantee for he was bound by the law of the land and for that it is equitie and it is Iustice that the estate of the grantee should be bound and so in this case like to the case in Plowden 207. and Dyer 231. where by Act of Parliament the possessions of an Abbot were bound now if afterwards the Abbot made a lease for years or granted the next avoydance and then after they came to the King he shall avoid the grant for the interest of the Grantor was bound by Act of Parliament and see the case of the universitie of Oxford Coo. 10. where a man before he was a recusant convict he granted the next avoydance and after he became a recusant convict and then the Church became void now the grantee shall not present for his interest was bound by Act of Parliament and so he must take it and here it behoves him to take that as it is bound with the prerogative of the King and so upon all the matter he hath lost his title and he concluded that the Plantiff shall be barred The argument of Justice Winch. WInch Iustice of the same opinion but because his argument was much to the purpose of that with Hutton and the Lord Hobert therefore I will not Report that verbatim and Winch said I will speak to the last point which was moved by my brother Hutton and I hold that where he had the first granted to him now he shall have none at all for it is punctually expressed that he shall have the first and that shall not extend to the next which may be granted but I grant if two coparceners had an advowson and the eldest presented and
then she granted the next avoydance that in this case the grantee shall have the next which may be granted and the reason is because she may not dispose of the estate of another but if in this case the course be evict by title Paramount of the King then the grantee had lost that and he cited the case of Brook presentation 52. and Gilbie and Iuxtons case which was directly adjudged with the case of Brook in which he was in councel as he said and he said that the book of 15. H. 7. is not to be relied upon for Law and he cited quare Impedit 154. and said that the King in this case shall not have the presentation against the devisee for he had a title setled before the title of the King for though the prerogative of the King is more antient yet his title is subsequent and he cited divers cases where the title of the subject was before the title of the Kâ—ng and so the case of the 15. H. 7. was adjudged that he may not out the grantee of the next avoydance and I think there is much difference between a patron of inheritance and he who had only a turn to present for there if the prerogative shall hold place he had lost all the fruite of his title and he said our antient books are that the King shall not have any prerogative except he himself be patron but admit he had then he had dispenced with that for the Commendam may not be for years and the Commendam did not make any alteration but only a dispensation and the case in Dyer shews that he remained parson to resign and shews plainly that the King had lost it true it is there are some few precedents of these Commendams but there are none in our books and for the assumption of the Bishoprick it is all one with England for the 17. Ed. the third the Bishopricks are donatives and Fitz N. B. 169. 14. Ed. 3. 26. Plowden 44. and the books are the Common Law that we have and he shewed some precedents of these Commendams to the Court and shewed the case of the Earl of Kildare where the incumbent had a Church with cure in England and an other in Ireland and void for the Pluralitie and 16. Eliz. Thorn-Borrow Parsonage was void when the incumbent was made Bishop of Ireland and Bancrofts case who was Deau in Ireland and then was made Bishop of London and it waâ— holden his Deanry was void and 4. Iac. Dod was made Bishop of N. and the Chancellor here in the right of the King presented to the living and if a beneficed man do take a Bishoprick by the very taking of that his benefice is void by the consecration clearly by the Lawes of the land for they are two incompatible benefices and may not by any means stand together and so upon the whole matter in regard that by the assumption of the Bishoprick the benefice was void by the very consecration and if the King had any title this was satisfied by his Licence and dispensation to hold that in Commendam and so he held the Plantiff shall be barred The argument of the Lord chief Justice Hobert HObert chief Iustice of the same opinion and after a Brief Recital of the case said that his opinion was that the Plantiff shall be barred upon the most of his case S. admitting that Clardon did live above the 6. years so that the King did present Gee in point of prerogative yet the Plantiff had not title upon the most of his matter much less upon the viciousness of his pleading and first we are to deal with the avoidance of benefices with their compatibles and then with the Commendams of the King and first I hold if a beneficed man take a Bishoprick he hath clearly lost his benefice by his consecration by the lawes of the Land for they are two incompatible benefices and they mâ—y not stand together but in this we must distinguish in this manner first a benefice may be void by subordination as where one is made Bishop of the same Diocess in which his Parsonage is this is the very reason of Dyer 158. and 8. Ed. 3. 9. where a Prebend of the same Church is made a Dean but otherwise if he be made Dean of another Church and so my opinion is if a Bishop be made an Arch-Bishop of the same province where his Bishoprick is nay if there is Parson and Vicar of the same Parish with cure and the Vicar accept the Parsonage the Vicaridge is void for the Vicaridge was derived out of the Parsonage our books say it was a long time before they would give the Vicar any estate and the reason was because here was a Corporation erected without Lawful Authoritie chiefly by the ordinary with the consent of the Patron and this case hath not his fellow in the Law and it is de novo that it is made for ab nitio non suit sic and that also had inabled him to bring an action against the Parson and also it gave to him a freehold but the chief reason was he eased the Parson in his dutie and therefore good reason he should have part in the profit but in our case the reason of the subordination doth fail for he is Bishop of another Diocess S. in Ireland and therefore we ought to search for another reason and without doubt the Law is all one in that also and this is ratione eminentiae by reason of the dignitie of a Bishop and so is Packhursts case in Dyer ruled without any exception and the case of the 44. Ed. 3. where one who had been prebend in England was made Bishop in Ireland and ruled the prebendary to be void and because the office of a Bishop and a Parson do differ in the eminencie therefore a Bishop may not be a Parson and now for the other point whether the King had a prerogative or no I spare to speak because there is no necessitie to draw that into question for the Plantiff had admitted that and the Defendant had not denied it but for the Commendam I do not make question but the King may make one and so may the Arch Bishop but the power of the Arch-Bishop is potestas limitata but the King had a double power one by antitient title before any claim made by the Pope and the other by the Statute but now for the other point I think it is a Commendam for years and first I hold if the case had been that he should hold that in Commendam with his Bishoprick in pristino Statu that had taken away the power of the King to present afterwards and the reason is plain for the prerogative is to present to that which is void by the assumption of the Bishoprick which doth never hap for by the Commendam he had that still as before but here the Commendam is for years and if he do also resign during the
years then this is void by resignation and so is the case of Packhurst that when he resignes during the years of the Commendam the Patron shall have that and not the King and so also my opinion is clear that if he had died within the 6. years limitted by the Commendam that the King shall not have that for then it is void by death and not by the assumption of the Bishoprick which book proves directly that a Commendam may be aswel for years as for life but yet I do not hold that upon those temporary Commendams if the Bishop continued Parson during the years and made no Act to impeach that then is a void cause S. the assumption of the Bishoprick and then when that is determined the supension is determined and it is void by the original cause S. by the assumption of the Bishoprick and this Commendam doth not turn the second or first Patron to any prejudice for the incumbent is still in by the presentation of the Patron and the determination of the Commendam is not any cause of the avoidance of the benefice but this is quasi non causa which is causa stolida as the Logicians do term it but in this case the assumption is the cause of the Cession and it is like to the case of 25. Ed. 3. 47. where the King brought a quare Impedit against the Arch-Bishop of York for a Prebendary vide the case and ruled in that case that the confirmation of the King had not taken away his title to present and the reason was because the confirmation had not filled the Church but continued that full which was full before and here this temporarie Commendam may not restrain the King to present afterwards for this is not a presentation and therefore may not take away the title of the King and here the Plantiff hath not well expressed it for he hath not shewed in this Court that the presentation of the King was lawful neither that Chardon held that by vertue of the Commendam for all the 6. years but only that the Church became void by the Laws of England and that is not sufficient and then if all before were for the Plantiff yet the question is whether he hath lost his turn and I think that he hath omnis argumentatio est à notoribus and the first is better known then the second and the second may not be the first and there when the devise gave him the first it is idle to say that he shall have the second for that departs from the meaning of the words and in every grant the law implies quantum in se est and no man may say that the devisor did intend to warrant that from antient Titles and so the Lord Hobert concluded his argument and said his opinion was that the Plantiff shall be barred and judgement was commanded to be entred accordingly Mich. 22. Jac. C.P. Michaelmas Term in the two and twentieth year of King James in the Common Pleas. DAvenport moved for the amendment of a Record where a recovery was suffered of lands in Sutton in the Countie of York and the indenture of bargain and sale was by the right name and the indenture of uses by the right name but the writ of entrie was of the Mannor of Sulton and upon the examination of the parties to be recovery that the recovery was to no other uses then is expressed and mentioned in the said indenture this was to be amended Sheis against Sir Francis Glover SHeis brought an action upon the case against Sir Francis Glover and shewed for the ground of his action that where one Harcourt was bound to the Plantiff in a Recognizance c. upon which the Plantiff took forth an elegit and the Defendant being the Sheriff of the Countie took an inquisition upon that upon which it was extended but he refused to deliver this to the Plantiff but yet he returned that he had delivered that and upon that he brought his Action and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Serjeant Hendon and the reason he shewed was because he laid his action in an improper Countie for though the return was in Middlesex where the Action was brought yet because the land lies in Oxfordshire where the seisin ought to be delivered the place is Local and for that the Action ought to be brought there and now Serjeant Breamston argued that the Action was well brought in Middlesex for this being but a personal thing he may bring that in either of the Counties as 14. Ed. 4. 13. Ed. 4. 19. expresly in the point and to the second objection that had been made that an Averment may not be against the return of the Sheriff to that Breamston answered that in an other Action an Averment may be against the return of the Sheriff though not in the same Action as 5. Ed. 4. but it was agreed to have a new trial by the preservation of the Iustices for otherwise it seemed the opinion of the Court was that the Plantiff shall have judgement upon the reasons urged by Serjeant Breamston Mary Baker against Robert Baker an Infant in Dower MAry Baker brought a writ of Dower against Robert Baker an Infant who did appear by his Gardian and he pleaded that his father who was husband of the demandant was seised of a Messuage and of land in Socage and devised that to the demandant for her joynture in full satisfaction of all Dower and he shewed that after the death of his father the demandant did enter into the said Messuage and land and was seised of that by vertue of the devise and to that the demandant did replie by protestation that he did not devise and for plea confessed the seisin of the husband and her own entrie but she further shewed that the Infant who was then Tenant was but of the age of 14. years and that she entred as Gardian in Socage to the Infant and disagreed to accept of that by vertue of the devise and traversed the entire and the agreement and it was said by the Court that his bar is good though it had been more pregnant to have alledged that she entred virtute legationis praedictae and so was seised and after it was said that the Replication was very good without the traverse for this was not expresly set down but that was but meerly the consequence of the plea which in veritie was not traversable Hickman against Sir William Fish HIckman had judgement for 600. l. and 10. l. damages against Sir William Fish and he acknowledged satisfaction for 410. l. of the said debt and damages and after there was an agreement between them that if Sir William did not pay the residue by such a day that then it should be lawful for Hickman to take out execution against the said Fish without suing of any scire facias though it was after
recovery here the Term is saved and yet for the time the lessee was seised to his own use but because that the fine was Preparatory to inable him to suffer the recovery now in this case after the recovery suffered that will look back to the first agreement of the parties and so the Statute hath saved the Term and for that reason if the Statute do save a Term which is of small account much more a freehold and so he prayed judgement for the defendant see more after The case of Hilliard and of Sanders entred Mich. 20. Jac. Rot. 1791. HIlliard brought a replevin against Michael Sanders for the taking of Beasts in a place called Kingsbury and the Defendant avowed and shewed that Sir Ambrose Cave was seised in his demeasne as of fee of Kingsbury where the place in which c. is parcel and 14. Feb. 16. Eliz. granted a rent charge of 42. l. 8. s. 4. d. to one Thomas Bracebridg and to the heirs of Thomas upon Alice to be ingendred the remainder to the right heirs of Thomas and Thomas had issue John and Thomas died and then Iohn his son died having issue Anne the wife of the Avowant in whose right he avowed for the rent of half a year c. 21. l. 4. s. 2. d. due at W. in Bar of which avowrie the Plantiff pleaded that true it is that Sir Ambrose Cave was seised of the Mannor c. and he made the grant according and that Sir Ambrose Cave died seised and that the said Mannor descended to Mary his daughter as daughter and heir to him who was married to one Mr. Henry Knowles and shewed that he was seised and then shewed that the 12. Iac. it was agreed between the said Sir Thomas Bracebridg and Alice his wife Mich. 22. Jac. C. P. and the said Henry Knowles and mary his wife that for the extinguishment and final determination of the said rent that Thomas and Alice should levie a fine to Henry and Mary of the said lands and Tenements aforesaid by the name of the Maniior of Kingsbury 300. Acres of land and of divers other things but no mention was made of the rent and this fine was upon Conusance of right as that which they had c. and also they released all the right which they had in the land to Henry and to Mary and then shewed that after the death of Mary this land descended to two daughters one being now married to the Lord Willoughby the other to the Lord Paget under whom the Plantiff claimed to which the avowant said by protestation that there was no such agreement and for plea that the rent was not comprised and upon that it was demurred in Law and now Serjeant Attoe this Term argued for the Plantiff and the substance of his argument was in this manner Attoe said the case was Tenant in tail of a rent charge agreed with the Tenant of the land to extinguish that and that he would levie a fine of the land to the land Tenant which is upon Conusance of right and upon release which fine is levied accordingly whether this cuts off the tail of the rent and I hold that it will and I do not finde any opinion in all the Law against this but only the opinion of Thornton in Smith and in Stapletons case in Plowden which I do not esteem to be a binding authoritie and the case is Tenant in tail of a rent disseised the land Tenant and levied a fine with proclamation of the same fine to a stranger now said Thornton this shall not bar the issue in tail of the rent because the fine was only levied of the land and he cited this to prove another case which is Tenant in tail of land accepted a fine of a stranger as that which he had c. and he rendered to him a rent and he said that his issue may avoid that rent and this case I grant because the rent was not intailed but for the other case I openly denie that and there is much difference between those two cases for a fine levied of the land may include the rent as well as the land but it is impossible that a fine of rent should include the land and our case here is pleaded to be of the land and of the rent and a fine of the land may carry the rent inclusively because it is a fine of a thing intailed yea it is not a new thing that rent should be carried inclusively by way of extinguishment in the case of a feofment and then á fortiori in a fine which is a feofment upon Record and especially when it is levied on purpose to extinguish the rent and the Statute of fines is more strong for that is of any lands Tenements and hereditaments any wayes intailed to any person c. but this rent is an hereditament intailed to the person who levied the fine and this which is carried inclusively is within the Statute nay if a man had nothing in the land yet if it was intailed to him who levied the fine this shall bar the estate tail for ever as if Tenant in tail made a feofment to G. S. and after that he did levie a fine to a stranger of the same land that in this case the issue shall never avoid this and yet neither the Conusor nor the Conusee had any thing in the land and see for Archers case Cook 3. where the issue in tail levied a fine in the life of his ancestor and a good bar and yet there he had but a possibilitie and so was the case of Mark-williams Mich. 19. Jac. Rot. 763. C. B. where all the distinctions were made for Henry Mark-williams was heir apparant to his Mother who was Tenant in tail and he levied a fine in the life of his Mother and died without issue and then his Mother died and it was ruled that this did not bar the sister heirs because she may have that and never make mention of her brother but in our case if the rent had been granted in fee it had been no question but that a meer release will extinguish that and I think a fine with proclamation is as forcible to extinguish a rent which is intailed as a release is for a rent in fee another reason is this is a fine directly of the rent though this is by the name of land and also this is upon Conusance of right c. and also in that he released and remised to the Conusees all his right in the said land but a case out of Bendloes Reports may be objected Tenant in tail accepted a fine of the land and rendred that for life ruled the issue is not barred but first I do not allow this case to be good law but if it be good law the reason is because he accepted only a fine of the land and for that it only extends to that and not to the rent as if a man is seised
of 3. acres and he accepts a rent of two of them which render of them all this is void for one acre and lastly by a feofment of land by warranty a rent is discharged 21. H. 7. and here I conceive that the replication to the bar of the avowrie is not good for his plea is that the rent in this case is not comprised and that is a point in law whether it is comprised or no for if we do take issue upon that we shall draw the trial here from the Court to the jury in the Countie which is not good and so upon all the matter I pray judgement for the Plantiff in the replication The argument of Davenport Serjeant DAvenport Serjeant to the contrary and he said the case is as hath been recited and the question is whether the rent so granted in tail is by this agreement of the parties and by the fine of the land whether it hath extinguished the rent and I hold this conveyance which only passeth the rent by implication is no bar to the issue in tail within the Statute of fines for where it is said that a fine was levied of the rent by the name of the land and made no mention of the rent this will not carry the rent and yet I agree this fine to be a feofment upon record and to be a bar against the parties who levied that but not against the issue if this had been before the Statute of fines it is no question this had been no bar against the issue for it is the express book 13. Ed. 3. avowrie 12. and 26. H. 7. 4. Tenant in tail of a rent made a feofment in fee of the rent with warrantie and there it is said that the warrantie did not extend to issue quoad the rent but now our case is upon the Statute of 32. H. 8. which saith that a fine shall be a bar of my lands Tenements and hereditaments any way intailed but yet I conceive that this requires that the fine be levied expresly of that and not by way of conveyance and so the case of Smith and Stapleton by Thornton who said that this was granted to him to be law which must needs be meant it was granted by the Court or by the Councel of the other side and the reason of that is because it ought to be levied of that expresly and there it is said if Tenant intail of an advowson do levie a fine of the nomination that shall not bar the issue and yet in effect that is the advowson and because it is not levied of that expresly it is not good and then for the precedent agreement that is indeed that the fine shall be for the extinguishment of the rent and what then will that prove that the fine was levied of the rent and here the writ of Covenant was not brought of the rent and yet I agree that agreements which do lead uses of fines will qualifie them against the very nature of the fine as the case of the Lord Cromwel and Puttenham in Dyer but I do not hold the agreement will extend over the nature of the fine and therefore this being a rent in gross it may pass by the name of land and the averment here is contrary to that which doth appear upon the Record and then not comprised is a good plea but this shall not be tried by the Countrie but by the Record as 12. H. 7. 16. for it is only to inform the Court that the partie had mistaken the Law and shall be tried by the Court and not by a jury in the Countrie as Attoe said and so upon the whole matter of the case I conclude my argument and pray judgement for the Avowant see after Hill 22. Iac. The residue of Michaelmas Term in the two and twentieth year of King James Ralph Holt and Rand against Robert Holt. RAlph Holt and Rand were joyntly and severally bound in an Obligation to Robert Holt and he took out Proces against them by several Praecipes and he had two several judgements and took out two several Executions against them of one Test S. a fieri facias against Rand and a Capias ad satisfaciendum against Holt and the question was whether the writs were well awarded and whether when one is Executed the other is discharged and Serjeant Crew urged 15. H. 7. 15. if after a Capias executed Sir Gilbert Dabenhams case he may not have a scire facias against the same partie and he cited a case to be adjudged in the 13. year of King James between Crawley and one Lidcat where two joynt obligors and the obligee did sue them and had two several judgements against them and he took an elegit against one and a Capias against the other and he who was taken upon the Capias brought his audita querela by which he was discharged of the execution for in so much that he had taken an elegit against one he is concluded to take any Process against the other as well as against him who had the elegit sued against him and so is Cook 1. 31. and yet some books are if the fieri facias is served for part he may have a Capias for the residue and so is the 18. Ed. 4. and â—0 Ed 4. 3. but here the fieri facias was executed for all and for that no Capias ad satisfaciendum shall issue in this case but Waller one of the Prothonotaries câ—â—ed a case in this manner that if a noble man and another be bound in an obligation as before and the obligee had such a judgement as here in this case he may have an elegit against the noble man because that the first Process against him is by summons and distress and he may have a Capias against the other or a fieri facias but Hutton denied this case and said that he shall have the same execution against both for as this ought to be one satisfaction quo ad ec sati factionem so this ought to be one for the manner also and though in this case that the Capias was not well awarded and Harvey Iustice agreed to that Methol against Peck MEthol brought an action upon the case against Peck upon an assumption and he declared that in consideratâ—on that the Plantiff would pay unto one Plaford 52. l. to the use of Peck such a day c. Peck promised to redeliver his bond in which he was bound in the said summe when he should be requâ—sted to that and he said that he paid the 52. l. to the use of Peck and that the said Defendant had not delivered the said obligation licet saepius postea requisitus fuisset and upon the issue of non assumpsit it was found for the Plantiff and now it was moved in arrest of judgement because he had not shewed the day and the place of the request but the Court c. Hobert Hutton and Harvey were of opinion that judgement
this rent for this is forced in by the name of land which is absurd and contrary and here is not any fine levied directly of the rent nor any Silver of the King paid for that but only by the judgement of consequence and now for the Statutes of fines whether it is a fine within these Statutes and I hold that it is not and I am of opinion that if the rent had been behinde before all the dayes of proclamation pass and the issue had accepted that he is remitted and the same law is if Tenant in taile of such a rent and he acknowledge such a fine with proclamations and the proclamations pass now if his issue had accepted the rent before the proclamations passed he is remitted and now for the Statute of 32. H. 8. that is not taken by equitie because it is a Statute of explanation which regularly may not be inlarged and so appears in Butler and Bakers case and now for the agreement it self that is not any thing for this is by a contrary name which may not be good like to the case of the Lord Cromwel for there was an agreement to raise a rent by fine but here is an agreement to pass a rent by another name and will any man say that if a man agree to levie a fine of rent by the name of an advowson that this will pass the rent and I think that the case of Thornton is good law and so is also the case which is put after that of the advowson and yet I agree if Tenant in tail do accept a fine with render to another for years that shall bar him because that doth not work a discontinuance but otherwise where it is for life and so in my opinion the rent remains and the avowant shall have judgement The argument of the Lord chief Justice Hobert HObert to the contrary the short question is whether the rent is extinct by the fine of the land and I hold that it is and it is agreed it is a bar against the parties themselves though not against the issue and that being granted I see no second reason wherefore the issue shall not be barred and first I am of opinion that this plea of not comprised it is not good because this fine doth work by way of release but it was said at the bar that things ought to pass litterally in a fine which I denie and also every informalitie of a fine which is cause to reject that is not a cause to frustrate that when that is levied and the words of the Statute are of any lands Tenements or hereditaments any wise intailed and if there be any word in the conveyance which will carry that it is sufficient and it shall be put upon the construction of the law and as to that that the fine shall be according to the writ of covenant but I say if there be no writ of covenant then there is no departure but it was said that the Silver of the King was not paid which I also denie for it was paid inclusively and the words of the Statute are of any thing any wise intailed and Tenant in taile had as great power to pass that by fine as Tenant in fee simple and for the case of Thornton I know he was a learned man but let it suffice that he was so esteemed but for his opinion I do utterly denie that and I do denie the case put by my brother Hutton of the Piscary for I hold if a man had a Piscary in another mans land and levies a fine of that by the name of land this will pass the Piscary clearly and so the same if a man have an office appertaining to land intailed and a fine is levied of that by the name of the land this shall bar the issue and I denie that Statutes of explanation shall alwayes be taken litterally for it is impossible that an Act of Parlâ—ament should provide for every inconvenience which happens and so the case of Godfrey and Wade adjudged that the fine of the youngest son may not bar the eldest and yet within the words the eldest was heir to him but this word heir shall be expounded as his heir and so we use to expound the Statute of 4. H. 7. which is an original Statute and bindes parties and privies and here the eldest brother is not privie for he claimes before him and so I conclude that the rent is gone and judgement was given accordingly Sir Robert Hitcham against Brooks SIr Robert Hitcham Serjeant of the King brought an action upon the case against Brooks and set forth in his declaration that he was one of his Majesties Serjeants at law and that the Defendant spoke these words of him I doubt not but to prove he innuendo Sir Robert Hitcham hath spoken treason and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Hendon first because it is not a direct affirmation that he spake treason but he doubts not but to prove that like to Penticosts case which was adjudged here where one Baker said of him I will prove that Penticost was perjured and no action will lie because he did not directly affirm that he was perjured Secondly because he had not shewed when he spoke those words and perchance it was in his infancie or lunacie or before the general pardons Thirdly here is not any allegation of any conference had of the King before and the speach of Treason is not Treason but when there is an intent to commit that and words shall be taken in the best sence as the case of Stanhop Cook 4. and so in the case between the Earl of Shrewsbury and Sir Thomas Stanhop one laid to Sir Thomas Stanhop that the Earl is a subject nay said Sir Thomas that is his grief and adjudged those words are not actionable and yet the words might be taken as if he had repined to have a Soveraign but the words were taken in the best sence Finch to the contrary this is more then a bare affirmation for he said he doubted not but to prove that asmuch as if he had said I am sure of that and Mich. 16. Iac. Sidnams case where one said I think in my conscience that if Sir Iohn Sidnam might have his will he would kill the King and all his good subjects and adjudged upon a writ of error brought of that the words are actionable and so in Whorewoods case so sure as you beleeve that God rules the world and that the King rules the Kingdome so sure did Whoorwood steal such goods and adjudged to be actionable and yet perchance the partie to whom he spake did not beleeve either of them and so Woods case 18. Iac. I will call him in question for killing of a man I will pawn my shirt but I will hang him and so here and prayed judgement for the Plantiff Ashley Serjeant contray words which may be taken
of Tithes and good because they are a spiritual bodie 65 In a Prohibition upon a suit for a Legacie the Executor shewed he had not assets to pay the debts and the spiritual Court would not allow that allegation yet no Prohibition 78 Prohibition to the Marches of wales because a Legatee sued there for 500. l. good before a decree but not after 78 Prohibition see Court of equitie c. 79 Prohibition to the Marches of Wales for requiring an accompt of an Administrator 103 Proces against two Obligors by several precipes and thereupon several Executions whether the writs are well awarded 112 A parco fracto where it lies against the Lord of the Soil and where not except the Cattle come out 80 81 Prohibition to the delegates a pardon not allowed of there 125 Q IN a Quare impedit adjudged that nothing ought to be questioned after induction the spiritual Court there 63 R TEnant in tail sells to I. S. in fee who sells to the heir of Tenant in tail being of full age the father dies if the son be demitted 5 A replevin c. the Defendant saith that all those c. had used to have pasturage in c. when it was not sowed the Prescription is good 7 In a return of Rescous there needeth no addition 10 Replevin for rent issuing out of six acres the avowant must prove that the grantor was seised of 6. acres or more 15 Replevin in the Plantiff claimeth propertie without that the propertie was in the Defendant the Traverse not good yet judgement for the Plantiff because after verdict 26 In Return of an extent by the Sheriff surplusage hurteth not 27 Replevin the Defendant avowed for homage and shewed not how it was due if good 31 Replication although evil where the Plantiff shall have judgement if the Defendants plea be vitious 37 A Riotous quarrel about an arrest between the Sheriffs Bailiffs and the Bailiffs of the Marches of Wales 72 Release an avowrie not good without pleading it by deed 72 A Rent-charge granted and a Covenant if it happen to be behinde then the land to be alwayes open to distress whether this be a distinct covenant or not 74 87 Replevin for rent the Defendants say that the land was parcel of a Chaunterie which came to the King by the Statute wherein the right of others was saved the Plantiff replies that the land is out of the fee of the Defendant no good plea but he might have Traversed the Tenure that at the making of the Statute the land was not holden of him 77 A Record amended where the bargain and sale and deed of uses were by the right name but the writ of entrie was of another name 99 100 Rent granted in fee by Tenant for life and him in remainder in tail levied a fine a good grant 102 Rent-charge whether it be extinct by a fine of the land to the Ter-tenant and a release unto him 109 110 111 121 122 S SCire facias the Defendant pleads a feofment the Plantiff traverses and the jury found a feofment to other uses whether this shall be intended the same feofment which was pleaded 32 Scire facias by an Executor upon a judgement for the Testator the Defendant cannot plead the Testators death between the verdict and judgement but he must bring a writ of error 48 Simonie a grant of a next avoidance for monie the Parson being readie to die is Simonie 63 A Sheriff by force of a Capias utlagatum to inquire what lands c. cannot put the partie out of possession 78 Statute-Merchant if good in regard no day of payment is limited largely and learnedly argued by the Court 82 83 c. Servant taken away See Trespas T TIthes See Prescription Trespass the Defendant saith that I. S. was seised in right of his wife and that she died seised and that he as heir c. the Plantiff replied that she died not seised he ought to have said that she died not sole seised 7 Trespass in Yorkshire Justification in Durham without that that guiltie in Yorkshire good because it is local 7 A Traverse to a presentation where good and where not 13 14 Tenure where it is Traversable and where the seisin 18 Tithes not due of Cattle for the diarie 33. Trespass for Beasts taken in London Justification upon a lease of land in Kent Replied that the Defendant sold them in London no good plea to bring the trial out of Kent 48 Trespass for taking ones servant lieth not upon a private retainer otherwise if it were at the Sessions 51 Tithe giuen by the Pope to the Vicar and the Copie of the Bull only was shewed in evidence not good 70 Tithes cannot be appurtenant to a Grange except the Grange be the Gleab 72 73 Traverse where good and where not 113 U VEnire facias omitting part of the venue if good 34 Variance between the writ and Declaration where good 35 A feofment to the use of A. for life and after to the use of his daughter till B. pay her 100. l. here the daughter hath no remedie for this 100. l. without a promise 71 A Ventre inspiciendo awarded and returned but the Court would not agree that she should be detained from her second husband but attended by divers women till her deliverie 71 Variance between the venire facias and the Sheriffs return no judgement in that case 73 W IN Waste judgement by nihil dicit and upon an inquirie the jury found 8. s. damages what judgement shall be given 5 Wager of Law upon a Bill of Exchange 24 Writs a difference wherein there is an error in the original and where in the judicial writ that is amendable 73 Waste although for a time it is punishable yet after the action may revive 79 86 Writ against husband and wife as an Inheritrix the husband dies if the writ abate 102 Errata PAge 1. line 2. 27. for do read Doa p. 2. l. 4. r. lieu p. 4. l. 2. 22. r. 300. pa. 8. l. 36. r. Hendon and so throughout p. 12. in the Title r. Duncombe against the Vniversitie of Oxford p. 12. l. 14. r. 38. H. 8. cap. 39. p. 14. in the Title r. Sir George Savile against Thornton p. 15. l. 21. r. communication p. 16. l. 12. r. 7. Jac. cap. 5. p. 17. l. 47. r. Maines and l. 17. r. sic and also p. 17. 18. in the Margent r. Trin. p. 21 l. 51. r. 39. Eliz. p. 23. l. 9. r. till p. 26 l. 28 for writ r. Action and for Action r. writ p. 27. l. 12. for he r. they p. 28. l. 34. r. may not p. 29. in the Margent r. Easter p. 29. l. 33. for S. r. N. p. 33. l. ultim r. Moore p. 36. l. 43. r. Titterels p. 45. l. 20. r. demandable p. 50. l. 35. r. Bar p. 51. l. 22. r. a penalty p. 53. l. 16. r. may not p. 54. l. 44. r. Estate p. 57. l. 19. r. in our case p. 58. l 50 r. 16. E. 4. p. 68. l. 5. r. estray p. 71. l. 26. r. 12. Note in p. 72. l. 7. Wolseys case ought to have been printed by it self p. 77. l. 4. r. avoided p. 88. l. 4. r. Finch p. 90. l. 15. r. continuance p. 100. l. 21. for preservation r. perswasion and l. 34. for entire r. entrie p. 109. in the Margent for Trin. r. Mich. p. 112. l. 25. r. thought p. 114. l. 18. for interested r. interest