See the Case 14 Eliz. in Dyer L. Mich. 15 Eliz. In the Common Pleas. Tottenham and Bedingfields Case Owen Rep. 35 83. IN an Accompt by Tottenham against Bedingfield who pleaded That he never was his Bailiff to render accompt the Case was That the Plaintiff was possessed of a Parsonage for Term of years and the Defendant not having any Interest nor claiming any Title in them took the Tythes being set forth and severed from the 9 parts and carried them away and sold them Vpon which the Plaintiff brought an Action of Accompt And by Manwood Iustice the Action doth not lie for here is not any privity for wrongs are always done without privity And yet I do agree That if one doth receive my Rents I may implead him in a Writ of Accompt and then by the bringing of my Action there is privity and although he hath received my Rent yet he hath not done any wrong to me for that it is not my Mony until it be paid unto me or unto another for my use and by my Commandment and therefore notwithstanding such his Receipt I may resort to the Tenant of the Land who ought to pay unto me the said Rent and compel him to pay it to me again and so in such case where no wrong is done unto me Hob. 32â— I may make a privity by my consent to have a Writ of Accompt But if one disseiseth me of my Land and taketh the profits thereof upon that no Action of Accompt lieth for it is meerly a wrong And in the principal case so soon as the Tythes were severed by the Parishioners there they were presently in the Plaintiff and therefore the Defendant by the taking of them was a wrong doer and no Action of Accompt for the same lieth against him And upon the like reason was the Case of Monox of London lately adjudged which was That one devised Land to another 1 Len. 266. and died and the Devisee entred and held the Land devised for the space of 20 years and afterwards for a certain cause the Devise was adjudged void and for that he to whom the Land descended brought an Action of Accompt against the Devisee And it was adjudged That the Action did not lie Harper contrary For here the Plaintiff may charge the Defendant as his Proctor and it shall be no Plea for the Defendant to say That he was not his Proctor no more than in an Accompt against one who holdeth as Gardian in Socage it is no plea for him to say that he is not Prochein Amy to the Plaintiff Dyer The Action doth not lie If an Accompt be brought against one as Receiver he ought to be charged with the Receipt of the Mony and an Accompt doth not lie where the party pretends to be Owner as against an Abater or Disseisor but if one claimeth as Bailiff he shall be charged and so it is of Gardian in Socage Latch 8. And it was agreed That if a Disseisor assign another to receive the Rents that the Disseisee cannot have an Accompt against such a Receivor LI. 15 Eliz. In the Court of Wards NOte That this Case was ruled in the Court of Wards That where Tenant of the King of Lands holden by Knights Service in chief made a Feoffment in Fee of the same Lands to the use of himself for life and afterwards to the use of his younger Son in tail the remainder to the right Heirs of the Feoffor and died his eldest Son within age That the Queen should have the Wardship of his body and of the third part of the Land and when the eldest Son comes of full age that the younger Son should sue Livery and pay Primer Seisin according to the rate and value of the whole Land viz. of the third part as in possession and of the two parts as a Reversioner For the remainder to the right Heirs of the Feoffee is in truth a Reversion for the Fee simple was never out of him because there is not any consideration as to that nor any Vse expressed And because Livery shall not be sued by parcels the younger Son shall not be suffered to sue Livery of the third part presently and respite the residue as to the two parts in Reversion until the Reversion fall but he shall sue Livery presently as well of the two parts in reversion as of the third part in possession and if the eldest Son had been of full age at the time of the death of his Father the younger Son should pay Primer Seisin as to the third part the whole value of it for one year as in possession and as to the two parts the moiety of the value of a year as of a Reversion LII Oliver Breers Case 15 Eliz. In the Court of Wards OLiver Breer who was Tenant in Chief by Knights Service made a Feoffment in Fee to the use of himself for life and afterwards to the use of A. his eldest Son and Heir for life and after to the use of the first begotten Son of the said A. in tail and afterwards to the use of the second Son of the said A. c. and for default of such issue to the use of the right Heirs of the Feoffor Oliver died the said A. his Son being of full age It was holden by the Council of the Court of Wards That he should pay for his first Primer Seisin a third part as in possession and two parts as a reversion See the Case before LIII Mich. 15 Eliz. In the Kings Bench. NOte 1 Roll. 626 This Case was moved to the Iustices in the Court of the Kings Bench A Man had Issue two Daughters by divers Women and being seised of Lands in Fee he made his Will and by the same Devised That his Wife should have the moyety of his Lands for years and that his eldest Daughter at the day of her Marriage should enter into the other moyety his eldest Daughter married and died without Issue And the Question was Whether her Vncle should have that moyety or the fourth part of the whole Land. Catline conceived and said That when the Devise which was made to the eldest Daughter that she might enter after certain years is not the Inheritance in her presently and the other words void So he said here That it is not a purchase in the eldest Daughter but both the Daughters should enter in Common as one Heir to their Father until the Marriage and then the Inheritance which was once settled in them should not be removed Southcote Iustice said There are no words of Limitation of any Estate that the Daughter should have after the Marriage and therefore the Devise was void and if he had limited that the Daughter after Marriage should have it for life the Fee-simple is vested in her before and then she cannot have it for life And he said That if a Lease be made to the eldest Daughter for years by the Father and afterwards
shall be taken in Iudgment of Law That the Executors have Assets to the value of the whole 100 l. And although the Executors were compelled by the Award to make the release yet it was their own act to submit themselves to the Arbitrament LXXVIII Mich. 15 Eliz. In the Court of Wards NOte It was Ruled by Kellaway and Wilbraham in the Court of Wards That where the Kings Tenant of Lands holden by Knight service in Capite made a Feoffment of the same Land to the use of himself for life and after to the use of his younger Son in tail the remainder to the right Heirs of the Feoffor and died the eldest Son within age That the Queen should have the Wardship of his body and of the third part of the Land and when the eldest cometh at full age the younger shall sue Livery and pay Primer Seisin according to the rate of the value of the whole Land viz. of the third part as in possession and of the two parts as a Reversion For the remainder to the right Heirs of the Feoffor is in truth a Reversion For the Feesimple was never out of him because there was not any Consideration as to that nor any use expressed And also because that Livery shall not be by parcels the younger Son shall not be suffered to sue Livery of the third part presently and respite the residue as to the two parts in Reversion until the Reversion fall but shall sue Livery presently as well of the two parts in reversion as of the third part in possession And if the eldest Son had been of full age at the time of the death of his Father the younger Son should pay Primer Seisin as to the third part of the full value of it for one year as in possession and as to the two other parts the moyety of the value of a year as a Reversion And at that time Breers Case was vouched which was Oliver Breers Tenant in Chief by Knights Service made a Feoffment in Fee to the use of himself for life and after to the use of A. his Son and Heir for life and after to the use of the first begotten Son of A. in tail and after to the use of the second Son of A. c. and for default of such Issue to the right Heirs of the Feoffor Oliver died the said A. his Son being of full age It was ruled by the said Council of the said Court of Wards That he should pay for his Primer Seisin a third part of the Land in possession and two parts as a Reversion LXXIX Mich. 15 Eliz. In the Common Pleas. Post 56. THe Case was A Man was seised of a Pasture in which was two great Groves and a Wood known by the name of a Wood And also in the same Pasture were certain Hedge-Rowes and Trees there growing Sparsim Leased the same by Indenture for years And by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses And further That it should and might be lawful to the Lessee to cut down and carry away the same at all times during the Term. Harper Iustice The Hedge-Rowes did not pass by these words Hedge-Rowes sparsim Dyer The Hedge-Rowes shall pass for the Grant is general All Woods Mounson contrary For the words of the Grant may be supplyed by other words It was moved further If by these words the Lessee may cut them oftner than once And by Harper Manwood and Mounson He can cut them but once Dyer contrary And so it should be if the words had been Growing upon the Premisses And this word Growing although it sounds in the present Tense yet it shall be also taken in the future Tense if the word tunc had not been alledged for it is a word of restraint The Case which was argued in the Chancery 27 H. 8. where I was present was such The Prior of St. John of Jerusalem Leased a Commandry Provided That if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void It was doubted If that did extend to the Successors for the word Being is in the present Tense And yet it was holden by Fitzherbert That it should be taken in the future Tense and so extend to the Successors Otherwise if the words had been Nunc Being LXXX Mich. 15 Eliz. In the Common Pleas. A Man seised of Lands in Fee devised 1 Len. 101. That his Wife should take the profits of his Lands until Mary his Daughter and Heir came to the age of 16 years And if the said Mary died That J.S. should be her Heir Manwood The Daughter after she hath attained the age of 16 years shall have the Land in tail For Devises ought to be construed according to the intent of the Devisor so far forth as any certainty with reason may be collected but no intent shall be taken against all reason and certainty It is certain That the Daughter shall not have the Land in Fee for that shall descend to her without any Devise And these words If she dieth cannot be intended a Condition for it is certain she shall die But if the words had been That after the death of Mary J.S. should be his Heir in such case Mary had had but an Estate for life for there it is limited what Estate she should have And when it is said J.S. shall be his Heir it shall be meant his Collateral Heir so as the Estate tail remains in the Daughter Mounson and Harper to the contrary and that she shall have but for life And by Mounson If Mary had been a stranger to the Devise she should take nothing And this Case was put by Barham Serjeant A Man deviseth 100 l. to his youngest Daughter 100 l. to his middle Daughter and another 100 l. to his eldest Daughter and that all these sums shall be levied of the profits of his Lands It was holden by the better Opinion of the Court in this Case That the youngest Daughter should be first paid and then the middle and then the eldest Daughter and that was said to be Coniers Case LXXXI Mich. 15 Eliz. In the Common Pleas. THe Case was The King granted to the Bishop of Salisbury That he should have Catalla felonum fugitivor ' and Fines and Amercements of all Tenants and Resiants within the Mannor of D. which Mannor the Bishop Leased for years and that the Lessee should have all profits and hereditaments within the same Mannor Manwood Iustice conceived That the Lessee should have the Post Fines For all things have a being somewhere although they be not visible As Rents Fines have their being in the Lands out of which they are issuing and that is in the Son of a Fine levied of the Land within the Mannor which is due by Land of him who ought to pay the Fine And this Fine is due be reason of the
and his diet for himself his servants and horses Vpon which the Debt in demand grew but the said Young was not at any price in certain with the Defendant nor was there ever any agreement made betwixt them for the same It was said by Anderson Chief Iustice That upon that matter an Action of Debt did not lie And therefore afterwards the Iury gave a Verdict for the Defendant CCXI. Heidon and Ibgrave's Case Hill. 29 Eliz. In the Common Pleas. 1 And. 148. A Writ of Right was brought by Heidon against Ibgrave and he demanded the third part of 40 Acres of Land in the County of Hertford and they were at Issue upon the meer Right Vpon which the Grand Assise appeared And first the 4 Knights were specially sworn to say upon their Oath Whether the Tenant hath better right to hold the Land than the Demandant to demand it And afterwards the rest of the Iurors were sworn generally as in other Actions And there was some doubt made Whether the Demandant or the Tenant should first begin to give Evidence And at the last it was Ruled by the Court That the Tenant should begin because he is in the affirmative And it was said by Periam Iustice That so it was late adjudged in the Case betwixt Noell and Watts And upon the Evidence the Case was That King Hen. the 8th by his Letters Patents gave to the Demandant the Mannor of New-Hall and all the Lands in the Tenure and Occupation of John Whitton before demised to Johnson and in the Parish of Watford And the truth was That the said 40 Acres whereof now the third part was in demand were in the Occupation of the said John Whitton but were never demised to Johnson nor in the Parish of Watford And by the clear Opinion of the Court the said 40 Acres did not pass for the circumstances of the Deed are not true scil the Demise to Johnson and the being in the Parish of Watford but both were false But if the said Land had had an especial name in the Letters Patents then it had been well enough notwithstanding the misprision in the rest And by Anderson If upon the particular it had appeared that the Demandant had paid his Mony for the said 40 Acres peradventure they had passed CCXII. The Dean of Gloucester's Case Hill. 29 Eliz. In the Common Pleas. THe Dean and Chapter of Gloucester brough a Writ of Partition against the Bishop of Gloucester upon the Statute of 32 H. 8. of Partition And it was moved That upon the words of the Statute that the Action did not lie in this Case for the Statute doth not extend but to Estates in Ioynt-Tenancy or in Common of Lands whereof such Ioynt-Tenants or Tenants in Common are seised in their own right And also it is further said That every such Ioynt-Tenant or Tenant in Common and their Heirs shall have Aid to deraign the warranty without speaking of the word Successors And by Periam and Windham Iustices The Writ doth not lie But Anderson seemed to be of a contrary Opinion CCXIII. Hare and Meller's Case Hill. 29 Eliz. In the Common Pleas. HUgh Hare of the Inner-Temple brought an Action upon the Case against Philip Meller and declared Ante 138. That the said Defendant had exhibited to the Queen a scandalous Bill against the Plaintiff charging the said Hugh to have recovered against the said Defendant 400 l. by Forgery Perjury and Forswearing and Cosenage And also that he had published the matter of the said Bill at Westm c. It was said by the Court That the exhibiting of the Bill to the Queen is not in it self any cause of Action for the Queen is the Head and Fountain of Iustice and therefore it is lawful for all her Subjects to resort to her to make their complaints But if a Subject after the Bill once exhibited will divulge the matter comprised in it to the disgrace and discredit of the person intended the same is a good cause of Action And so was the Case of Sir John Conway who upon such matter did recover And as to the words themselves It seemeth to the Court That they are not Actionable For it is not expresly shewed That the Plaintiff had used Perjury Forgery c. And it may be that the Attorny or Sollicitor in the Cause hath used such indirect means the Plaintiff not knowing it and in such case the Plaintiff hath recovered by Forgery c. and yet without reproach And by perjury he could not recover for he could not be sworn in his own Cause And Stanhops Case was remembred by the Court which was That Edward Stanhop of Grays-Inn brought an Action upon the Case against one who had Reported That the said Edward Stanhop had gained his Living by swearing and forswearing And by the Opinion of the Court The Action did not lie for those words do not set forth any actual forswearing in the person of the Plaintiff but it might be in an Action depending between the Plaintiff and a stranger that another stranger produced as a Witness had made a false Oath without any procurement or practice of the Plaintiff in which Case it might be that the Plaintiff had gained by such swearing CCXIV. Cheverton's Case Hill. 29 Eliz. In the Common Pleas. HEnry Cheverton brought a Quare Impedit and Counted That he was seised of the moyety of the Church of D. that is to say To present qualibet prima vice and that J.S. is seised of the other moyety that is to say To present qualibet secunda vice c. And Exception was taken to the Count Because it was not shewed how the special Interest did begin scil by Prescription Composition or otherwise for it is clearly against common Right and therefore that ought to be shewed See Dyer 13 Eliz. 229. CCXV Edmond's Case Mich. 29 Eliz. In the Common Pleas. IN an Action upon the Case against Edmonds the Case was That the Defendant being within age requested the Plaintiff to be bounden for him to another for the payment of 30 l. which he was to borrow for his own use to which the Plaintiff agreed and was bounden ut supra Afterwards the Plaintiff was sued for the said Debt and paid it And afterwards when the Defendant came of full age the Plaintiff put him in mind of the matter aforesaid and prayed him that he might not be damnified so to pay 30 l. it being the Defendant's Debt Whereupon the Defendant promised to pay the Debt again to the Plaintiff Vpon which promise the Action was brought And it was holden by the Court That although here was no present consideration upon which the Assumpsit could arise yet the Court was clear That upon the whole matter the Action did lie and Iudgment was given for the Plaintiff CCXVI Farrington and Fleetwood.'s Case Mich. 29 Eliz. In the Exchequer BEtween Farrington and Fleetwood the Case was upon the Stat. of 31 H. 8. of Monasteries 2
Len. 55. 1 Len. 333. The Abbot and Covent of D. 29 H. 8. makes a Lease of certain Lands for 3 Lives to begin after the death of one J.S. if they shall so long live And afterwards 30 H. 8. within a year before the Dissolution they make another Lease to JS If the first Lease in the life of J.S. be such an Estate and Interest which by vertue of the said Statute shall make the second Lease void was the Question For it was not in esse but a future Interest Manwood All the reason which hath been made for the second Lease is because the first Lease is but a possibility for J.S. by possibility may survive all the 3 Lives and so it shall never take effect But notwithstanding be it a possibility c. or otherwise It is such a thing as may be granted or forfeited and that during the life of the said J.S. And Note also the words of the Statute If any Abbot c. within one year next before the first day of the Parliament hath made or hereafter shall make any Lease or Grant for years life or lives of any Mannors c. whereof and in which any Estate or Interest for life or years at the time of the making of any such Lease or Grant then had his being or continuance or hereafter shall have his being or continuance and then was not determined c. shall be void c. And here is an Interest and that not determined at the time of the making of this Lease to J.S. And of that Opinion was the whole Court and all the Barons and divers other of the Iustices And therefore a Decree was made against that Lease c. CCXVII The Master and Chaplains of the Savoy's Case Mich. 29 Eliz. In the Exchequer THe Master and Chaplains of the Savoy aliened a parcel of their possessions unto another in Fee and afterwards surrendred their Patents and a Vacat is made of the Enrollment of them It was now moved How the Alienee should be adjudged to make title to the said Lands claiming the same by the Letters Patents For the Clerks would not make a Constat of it For the Patents were cancelled and a Vacat made of the Enrolment And the Case of Sir Robert Sidney was vouched in which Case the Statute of 3 E. 6. was so expounded upon great advise taken by the Lord Chancellor who thereupon commanded That no Constat be made in such case Manwood If Tenant in tail by Letters Patents of the King surrendreth his Patent and cancelleth it and a Vacat be made of the Enrollment by that the Issue in tail shall be bound For no other person at the time of the cancelling hath Interest But in the Case at Bar a third person scil the Alienee hath an Interest And therefore he was of Opinion That he should have a Constat c. CCXVIII Inchely and Robinson's Case Hill. 29 Eliz. In the Common Pleas. IN an Ejectione Firmae It was found by Verdict That King E. 6. was seised of the Mannor and Hundred of Fremmington 2 Len. 41. Owen Rep. 88. and granted the same by his Letters Patents to one Barnard in Fee rendring 130 l. per annum and also to be holden by Homage and Fealty And afterwards Queen Mary reciting the said Grant by King Ed. 6. and the Reservation upon it granted unto Gertrude Marchioness of Exeter the Mannor of Fremmington and the said Rent and Services and also the Mannor of Camfield and other Lands and Tenements Tenendum per vicesimam partem unius feodi Militis Gertrude being so seised Devised to the Lord Mountjoy the Mannor of Fremmington the Mannor of Camfield c. And also bequeathed divers sums of Monies to be levied of the premises And further found that the said Rent of 130 l. was the full third part of the yearly value of all the Lands and Tenements of the Devisor The Question was If by these words of the Devise of the Mannor of Fremmington the Rent and the Services pass i.e. the Rent Homage and Fealty reserved upon the Grant made by King Ed. 6. of the Mannor and Hundred of Fremmington And if the said Rent and Services are issuing out of the Mannor For if the Rent doth not pass then the same is descended to the Heir of the Marchioness and then being found the full third part of the value the King is fully answered and satisfied and then the residue of the Inheritance discharged and is settled in the Devisee And if the Rent doth not pass then is the Heir of the Marchioness entituled by the Statute to a third of the whole c. And Shuttleworth conceived That if the Marchioness had Devised by express words the said Rent and Services they could not pass For as to the Services they are things entire as Homage and Fealty they cannot pass by Devise in case where Partition is to follow for such things cannot receive any partition or division therefore not divideable For the Statute enables the Proprietary to give or devise two parts of his Inheritance in three parts to be divided As Catalla Felonum cannot be devised for the reason aforesaid Quod fuit Concessum per totam Curiam But as to the Rent the Court was clear That the same was deviseable by the said Statute and in respect of that the mischief of many distresses which the Common Law abhors is dispensed with and is now become distrainable of common right And as to the Devise he argued much upon the grounds of Devises and put a ground put by Fineux 15 H. 7. 12. Where every Will ought to be construed and taken according as the words purport or as it may be intended or implyed by the words What the intent of the Devisor was so as we ought to enquire the meaning of the Testator out of the words of the Will. And see also a good Case 19 H 8. 8 9. And he much relyed upon the Case of Bret and Rigden Plow Com. 343. See there the Case So in this Case for as much as such Intent of the Devisor doth not appear upon the words of the Will that this Rent shall pass It shall not pass for there is not any mention of any Rent in the whole Will. Fenner argued to the contrary and he argued much upon the favourable Construction which the Law gives to Wills. 14 H. 8. by Reversion for remainder e contra 17 E. 3. 8. A Man may make a Feoffment in Fee of a Mannor by the name of a Knights Fee a multo fortiori in the Cases of Devises And in our Case the Marchioness conceived That the Rent and Services reserved out of the Mannor of Fremmington was the Mannor of Fremmington and that the Law would give strength to that intent Walmesley conceived That the Rent did not pass by the name of the Mannor c. for this Rent noc in veritate nec in reputatione was ever taken for a Mannor
years or for life with the ancient Rent reserved is sufficient and is a good and immediate descent of the third part And this word here immmediatè to be construed ratione temporis is a frivolous Construction for the wore Descent implys that For there cannot be an expectant and future descent For descent is clearly immediate without mean time But here in this case the word immediate is to be taken in both senses et re et tempore For by the Relation of the Waiver it is as if no Ioynture had been made and the Heir is to have the profits of the Land from the death of his Ancestor And so the descent of Hinton immediatè et re et tempore And that the same time hath had such reasonable Construction is now to see The Statute of 18 H. 6 Cap. 1. is That the Chancellor shall make Patents to bear date the same day that the Warrant was made and not before It hath been taken That if the Patents bear date after the Warrant entred they are good Which see 19 Eliz. Plow Com. 492. in Ludford and Gretton's Case The Statute of Acton Burnel is That if the Extendors extend the Land too high statim respondeant illi qui fecerunt extent This word of time statim shall not be construed that the Extendors shall pay presently but that they shall pay without delay i.e. at the day limited in the Statute See 2 H. 4. 17 18. It hath been Objected That it is a great inconvenience that the King for his third part should attend the pleasure of the Wife the time of her Election and therefore the Will shall be void But the same is no inconvenience for the Ioynture never was actually in the Wife to her prejudice until she entred into the Land c. And now by the Waiver the Ioynture is avoided ab initio to all intents as if it never had been made So as the King shall be answered of the entire profits after the time of the death of the Husband and may seize the whole Land presently without staying the Election of the Wife or taking notice of her Ioynture And so are the words of the Diem clausit Extremum Tibi praecipimus quod omnia Terras Tenementa of which c. et ea salvò Custodias donec aliud tibi praeceperimus And that may be before any Office found And those who have any Interest in the Land or otherwise may shew the same upon the Traverse of the Office or in the Court of Wards and have allowance of it And so there is not any prejudice to the King No more than when Tenant in knight-Knight-service Deviseth all his Lands There Division is to be made and the King hath not any prejudice by it In the true Construction of this Statute it is very necessary to consider the intention and meaning of both Statutes And it is certain That the said Statutes were made for the benefit of the Subjects to enable them to dispose of their Lands for the preferment of their Wives advancement of their Children and payment of their Debts whereof they were restrained by the Statute of 27 H. 8. of Uses The Savings in the said Statute are for the benefit of the King and the Lords So as Provision is made not only for the benefit of the Subjects but also for the profit of the King and other Lords The disability of the subjects to dispose of their Lands to the intents aforesaid appears in the Preface of the Statute of 32 H. 8. And the favour and grace of the said King towards his Subjects to supply the necessity of Subjects appeareth by the Prefaces of both Statutes The later Statute is an Explanation of the former in divers Points The first Statute to persons Having Mannors c. Ex vi termini includes Tenants in tail Ioynt-Tenants Enfants Idiots Feme-Coverts but the same is explained by the later Act to be of Feesimple only and of sole Estates and to persons of sound memory not of Coverture And so If the Kings Tenant Deviseth all his Land the same is good for two parts of it so if he Devise all which he hath in Feesimple and leaveth the third part to descend in tail This Statute shall be taken strict against the Heir For the whole Scope and Intent of the Parliament was to bind the Heirs and to enable their Fathers to dispose so as the third part be saved to the King and the Lords And that is manifest For the Estates made by Collusion are preserved and by an express Clause in the Statute kept in force against the Heir but void as to the Lords As to certain Readers Cases which have been put to prove That these Statutes ought to have a strict Construction I conceive Nihil operatur A Man seised of one Acre by Disseisin and of two Acres by good Title all holden in chief by Knight-service Deviseth the two Acres which he hath by good Title and dieth so as the Acre which he hath by Disseisin descends to the Heir being within age the King seiseth the third Acre is devested by Eigne Title the Devise of the other two Acres is good against the Heir for it is within the express words of the Statute Having a sole Estate in Fee-simple And yet by another Branch of 34 H. 8. the King for his time shall have recompence out of the other two Acres and he agreed the Law to be so but the same doth not conclude our Case A Man seised of two Acres in Socage and of one Acre holden by knight-Knight-service in Chief of equal value is disseised of the Acre holden in Chief and Deviseth the other two Acres in Fee the same is a good devise for it is within the first branch expresly Having a sole Estate in Feesimple and not having any Lands holden by knight-Knight-service for during the disseisin he hath not the Land whereof he was disseised and therefore the devise is good for the benefit of the Devisee and the Lord is not at any Mischief For the Disseisee notwithstanding the Disseisin remains Tenant of the Lord as to the Avowry and the Lord shall have the Wardship of such Heir and may enter upon the Disseisor and so have a third part And that Case was put out of Gilbert's Reading A Man seised in Fee of two Mannors of equal value holden by Knights-service in Capite and a third Mannor of the same value is conveyed to him by Deed of Bargain and Sale acknowledged and before Enrollment he deviseth the two first Mannors to J.S. in Fee and dieth and afterwards the Indenture is enrolled yet the devise is not good for the said two Mannors by any Relation of the Bargain and Sale enrolled That Case may well be agreed to be Law For the Estate doth not vest in the Vendee before Enrollment and so the Estate was not perfectly in the Devisor at the time of the Will For although that the Enrollment shall relate
to prevent all acts and charges made mean by the Vendor yet it shall not relate to vest the Estate from the time of the delivery of the Deed For the Vendee cannot punish a Trespass Mean And if the Vendee hath a Wife and the Vendee dieth before Enrollment and afterwards the Deed is enrolled she shall not be endowed but here shall be some descent to take away an Entry yet the Heir shall have his age But in our Case it is otherwise for by the Waiver the Ioynture was waived ab initio And he cited Carrs Case 29 Eliz. in the Court of Wards The King granted the Mannor of C. to George Owen in Fee tenend in Socage and rendring 94 l. per annum And afterwards granted 54 l. parcel of the said Rent to the Earl of Huntington in Fee to be holden by Knight-service in Capite and afterwards purchased the said Rent in Fee And afterwards of the same Mannor enfeoffed William Carr who devised the same for the payment of his Debts And it was holden That the devise was good against the Heir And the King was not entituled to Livery or Primer Seisin And therefore the Defendant was dismissed But peradventure the Queen shall have benefit of the Act. See Cook 3 Part 30 31. Butler and Baker's Case The King gives Lands unto A. in Fee to hold by knights-Knights-service during his life and afterwards to hold in Socage He may devise the whole For at the time when the devise took effect he was Tenant in Socage Lands holden in knight-Knight-service are given to J.S. in tail scil to the Heirs Males of his Body the Remainder to the right Heirs of J.S. J.S. deviseth these Lands and afterwards dieth without Issue Male the same is good for two parts yet during his life he had not an Estate in Fee in possession The Father disseiseth his Son and Heir apparent of an Acre of Land holden in Chief by Knight-service in Capite and afterwards purchaseth a Mannor holden in Socage and deviseth the said Mannor and dieth his Heir within age the Devise is good for the whole and the King shall not have Wardship of any part and that in respect of the Remitter and yet it is within the words Having sole Estate in Fee of Lands holden and within the Saving Tenant in tail of an Acre of Land holden of the King in Chief by Knight-service seised of two Acres in Fee holden ut supra makes a Lease for three Lives of the Acre entailed reserving the accustomed Rent and afterwards deviseth the other two Acres in Fee and afterwards dieth seised of the Reversion and Rent The same is a good devise of all the two Acres And here is an immediate descent of the third part for the same is within the words In Possession Reversion or Remainder or any Rent or Service incident to any Reversion or any Remainder See the Statute of 34 H. 8. A Man seised of three Acres of equal value holden by Knight-service in Capite assureth one to his Wife for her Ioynture by Act executed and deviseth another to a stranger And the third to his Wife also The King in this case shall have the third part of every Acre But if the stranger waiveth the devise the King shall have the Acre to him devised and the Wife shall retain the other two Acres and it shall not go in advantage of the Heir So if he deviseth the said three Arces severally to three several persons to each of them one Acre and the one Waives the devise in one Acre The devise of the other two is good Or otherwise the King shall have the third part of every Acre c. CCCLXVII Mich. 35 Eliz. In the Common Pleas. 5 Co. 29. THe Case was An Enfant was made Executor And Admimistration was committed to another viz. A. durante minori aetate who brought an Action of Debt against the Debtor and recovered and had him in Execution and now the Executor came of full age It was moved What should be done in this Case and how the party should be discharged of the Execution for the authority of the Administrator is now determined and he cannot acknowledge satisfaction or make an acquittance Windham Although the authority of the Administrator be determined yet the Record and the Iudgment remain in force But peradventure you may have an Audita Querela But he conceived That an Administrator could not have such Action for that he is rather a Bailiff to the Enfant than an Administrator See Prince's Case 42 Eliz. Cook 5 Part 29. Which Rhodes concessit A. was bounden unto B. in an Obligation of 100 l. upon Condition to pay a lesser sum The Obligee made an Enfant his Executor and died Administration was committed durante minori aetate to C. to whom A. paid the Mony It was doubted If that payment was rightful or If the Mony ought to have been paid to both Windham Doth it appear within the Record That the Enfant was made Executor and that Administration was committed ut supra To which it was answered No. Then Windham said You may upon this matter have an Audita Querela In this Case It was said to be the Case of one Gore 33 Eliz. in the Exchequer in a Scire facias by an Assignee of a Bond against an Enfant Executor He pleaded That the Administration was committed to A. and his Wife during her minority And it was adjudged no Plea. CCCLXVIII Mich. 35 Eliz. In the Common Pleas. NOte It was the Opinion of all the Iustices Jones Rep. 243. That if Lessee for 20 years makes a Lease for 10 years that he may grant the Reversion without Deed but in such case if there be a Rent reserved there ought to be a Deed and also an Attornment if the Rent will be had And it was agreed by them all That if there be Lessee for years and the Lessor granteth the Land to the Lessee and a stranger that the Reversion shall pass without Livery or Attornment and that by the Acceptance of the Deed by him who ought to Attorn But whether he shall take joyntly or in Common or whether in a moyety or in the whole the Iustices were of divers Opinions Ideo Quaere for it was not Resolved FINIS A TABLE of the principal Matters contained in the Third Part of LEONARD'S Reports A. ABatement of Writ Page 2 4 77 92 Ex Officio Curiae p. 93 Accompt p. 38 61 63 Damages given in it p. 150 Damages given in it not expresly but the Court shall give Quoddam Incrementum p. 192 Brought by the Grantee of the King against an Executor where maintainable where not p. 197 Generally brought where good p. 230 Acquittance Must be shewed upon payment of Debts by Executors p. 3 Action upon the Case For stopping of a way p. 13 Against one for proceeding to Judgment and awarding of Execution in an inferiour Court after an Habeas Corpus awarded p. 99 Where lieth
such Grants B. 136 to 140. Void if the King be deceived by false suggestions B. 137. C. 5 6 119 242 to 251. Of Durchy Lands Tenend in feoda firma nobis hered nostr if the Tenure is as of the Dutchy B. 150 151 162 163 164. The force of general words therein B. 157 158 162 163 164. C 243 244 250. By the words ex gratia speciali certa scientia what is supplied C. 48 49 249. Of an Advowson of a Church where the King was seised of the Rectory C. 101. Where the King may claim against his own Grant C. 113. Patents must be pleaded sub magno sigillo C. 193. If a Grant of Goods and Forfeitures of one utlawed will transfer an Action of Account C. 197. Shall be taken strongly against the King if the sense be dubious C. 243. What things in the Kings Grants shall be said to deceive the King and so avoid the Grant B. 137. C. 5 6 119 242 to 250. Where the Kings Grant shall or shall not work several effects C. 243. If the Consideration be false the Grant is void C. 247 248. The Stat. 18 H. 6. cap. 1. appoints That Patents must bear the same date as the Warrant for them yet good though of a date after C. 274. H. Habeas Corpus Corpus cum Causa WHat shall be a good retorn of a Commitment by the Kings Councel A. 70. The like upon the Defendant his disobeying the Kings Protection A. 70. The like by a Secretary of State B. 175. The party discharged being detained by Process out of contempt out of the Court of Requests where it appeared to be no cause of equity the like in Chancery C. 18. Party discharged being detained by a Lords Warrant to answer before the Kings Council but says not for what C. 194. By priviledge for one who came to attend Law-Suits at Westm C. 194. Heir Of Lands held by Knights-Service may make a Lease or sell by Bargain and Sale enrolled during the possession of the King and it shall bind the Heir A. 157. What other act such an Heir may do before he have an Ouster le main A 157 158. In Debt pleads riens per descent praeter the third part of a Mannor B. 11. C. 70. What Judgment or false Plea makes him chargeable of his own Goods and Land B. 11. C. 70. To what intents Heirs are said to be several or but one Heir A. 292. Nemo est haeres viventis Ergo a Devise to the Heirs of the Body of J.S. who is then living is void B 70. Devise to the Heir is void and he is in by descent B. 101. C. 118. It is said he cannot charge himself by his promise unless he have Assets C. 67 68. Hue-and-Cry Where notice ought to be given upon a Robbery and within what time a Man may Travel A. 57. Who must be examined where Goods are robbed from a Carrier A. 323. If an Action lies against a Justice of Peace who refuseth to examine the party A. 323 324. It ought to appear that six Moneths are past since the Robbery B. 12. Bar therein by a prescription to Rob at Glads-Hill in Kent quod est mirum B. 12. Three who were robbed joyn in one Action quod est mirum B. 82. If the parties robbed be sufficient evidence at the Trial B. 82. The party robbed his duty B. 82 174 175. No Action lies against an Hundred for a Robbery in an House C. 262. J. Ieofails See the Statutes SEe Statute 32 H. 8. cap. 3. and 18 Eliz. cap. 14. For want of the Christian Name of the Attorny in the Roll if aided A. 175 176. Mis-joyning of Issues is aided But if Issue be joyned but as to part and nothing said of the rest that is not B. 195. C. 67. Ignorance What Ignorance shall excuse the Defendant of a Tort B. 94 95. Incidents A Court is incident to a Mannor and cannot be severed A. 119. A Steward is incident to a Court A. 218. And amercâ—ament to a Court-Leet A. 217. What things are incident to a Hundred Court B. 74. Indictment For publishing false News Indorsed Billa vera And after Sed utrum verba fuer locuta seditiose is not good A. 287. Upon the Stat. of 1 Eliz. for administring the Sacrament in a wrong form A. 295. Where a greater punishment is added for a second offence the first Conviction must be recited in the second Indictment A. 295. Lies not for enclosing part of a Common B. 117. De morte cujusdam hom ignoti is good Con. of a Coroners Inquest B. 121. Against one Man for not repairing a Bridge in a Road B. 183 184. Of Trespass may be taken before two Justices though neither be of the Quorum B. 184. Of Forcible Entry good in part and void in part B. 186. C. 102. Upon a Statute cannot stand good as to the same offence at Common Law B. 188. For Perjury upon the Statute 5 Eliz. must say voluntarie deposuit B. 211. Against a Juror for disclosing that a party was indicted C. 207. Lies not for inclosing a Common in the parties own Land C. 216. For suing one in Debt in the Court of Request C. 229. Inducement What matter of Inducement is laid in Assumpsit and is the Consideration it must be certainly alledged B. 203 204. Infant May have an Action in nature of a Dum fuit infra aetatem upon a surrender of Copyhold Lands A. 95. Count against him for necessaries ought to be special 114. Suffers a common Recovery by Guardian A. 211. Cannot lose by default in Dower unless by Guardian B. 59. Declaration of the Uses of a Fine binds him B. 159. Lease by him without a valuable Rent is void B. 217 218 219. Cannot enter into a Recognizance for to discharge himself of an Execution C. 113. Infant Executor may sell Goods and it shall bind him C. 143. Not prejudiced by his Laches of not tendring his Fine to the Lord C. 221. Information In the Exchequer for Usury many diversities argued but not adjudged A. 96. For the King against the Master of his Ordinance for not rendring an account of Bullets c. but converting them c. what is a good plea to it B. 34. Inquiry of Damages Judgment upon Demurrer pro quer for part and an Issue depending for other part A Writ of Inquiry shall issue A. 141. Though too small Damages be found no new Writ shall issue B. 214. Inquest A Juror Alien need not be worth 4 l. per annum A. 35. Ought not to meddle with matter not in issue A. 67. Fined for eating before they were agreed A. 132 133. A Juror sworn who shewed his Charter in exemption A. 207. The Christian Name of a Juror mistaken is Error A. 276. Inquest fined and imprisoned for not finding an Office for the King B. 132. The first Inquest which tries the first issue may assess Damages for the whole Trespass C. 122. If an Inquest of
Mich. 29 El. C.B. p. 168. C. 219 Weshborn and Mordants Case Mich. 29 Eliz. B. R. p. 174. C. 225 Williams and Linkfords Case Trin. 29 Eliz. B.R. p. 177. C. 229 Welcot and Powells Case Pasch 30 El. B.R. p. 206. C. 263 Wigmore and Wells Case Pasch 30 El. B. R. p. 206. C. 264 Willoughbies Case Trin. 30 Eliz. B. R. p. 216. C. 285 Wood and Payns Case Trin. 31 El. B.R. p. 228. C. 306 Sir Walter Wallers Case Trin. 32 Eliz. Exchequer p. 241. C. 333. p. 259 C. 345 Woodward and Baggs Case Hill. 32 El. B. R. p. 257. C. 341 Witherington and Delabars Case Mich. 33 Eliz. B. R p. 268. C. 360 Y. YOung and Ashburnhams Case Hill. 29 Eliz. C. B. p. 161. C. 210 Yates Case Trin. 31 Eliz. B.R. p. 231 C. 312 THE THIRD PART OF THE REPORTS OF Several Excellent Cases Argued and Adjudged in the several COURTS of LAW at Westminster In the Time of the Late Queen ELIZ. From the First to the Five and Thirtieth Year of her Reign In the Time of Edw. the Sixth I. 6 Edw. 6. In the Common Pleas. A Man had a Warrren in Fee extending into three Towns Benlow's Rep. 12. Owen Rep. 10. 1 And. 26. 13 Co. 57. 1 Inst 148. a. 7 Co. 23. b. Goldb 44. and Leased the same by Deed to another rendring Rent And afterwards granted by Deed the Reversion of the whole Warren in one of the said Towns to another and the Lessee attorned It was holden by all the Iustices in the Common Pleas That neither the Grantor nor the Grantee should have any part of the Rent during the same Term Because no such Contract can be apportioned II. 6 Edw. 6. In the Common Pleas. A Man by Deed Indented 1 And. 27. Bargained and sold Land unto another in Fee and Covenanted by the same Deed to make to him a good and sufficient Estate in the said Land before Christmas next And afterwards before Christmas the Bargainor acknowledged the Deed and the same is enrolled It was the Opinion of all the Iustices of the Common Pleas That by that Act the Covenant aforesaid was not performed For the Bargainor in performance of the same ought to have levied a Fine made a Feoffment or done other such Acts. III. 6 Edw. 6. In the Common Pleas. 1 And. 32. IN Dower the Tenant made default at the Summons and now at the Grand Cape he came and said That he could not come because he was in great infirmity at the time of the Summons so as he could not appear It was the Opinion of the whole Court That that matter should not save his Default because it cannot be tryed as creit de Eue and Imprisonment may be IV. 6 Edw. 6. In the Common Pleas. 1 And. 32. DEbt against Executors who pleaded Riens enter Maynes which was found against them The Plaintiff sued forth a Writ of Execution Vpon which the Sheriff retorned Nulla bona Testatoris within the County It was the Opinion of the Court That the same was a good Retorn for it may stand with the Verdict for it may be that they have Assets in another County See 3 H. 6. 11. Where the Retorn is general Quod non habent Executores aliqua bona Testatoris that it was holden insufficient but here in this Case the Retorn is special scil in the same County In the Time of Queen Mary V. 1 and 2 Philip and Mary In the Common Pleas. 1 And. 31. TEnant in tail had Issue two Sons and enfeoffed his younger Son and died The younger Son died without Issue leaving his Wife priviment ensient with a Son the elder Brother entred It was holden in this Case That he was Remitted and although that afterwards the Son was born yet the same should not avoid the Remitter VI. Stapleton and Truelocks Case Mich. 1 and 2 Phil. and Mary More Rep. 11. WIlliam Stapleton Executor of John Scardenyll brought an Action of Debt against John Truelock Administrator of the Goods of William Truelock who died Intestate upon a Bill sealed The Defendant demanded Oyer of the Testament By which it appeared That the said Scardenyll had made the Plaintiff and the said William Truelock his Executors And in the said Will was this Clause I Will That my Friend William Truelock shall pay to my other Executor all such debts as he oweth me before he shall meddle with any thing of this my Will or take any Advantage of this my Will for the discharge of the same debts for that I have made him one of my Executors And upon this matter It was clearly Resolved that the said William Truelock could not Adminster nor be Executor before he had paid the debts And the Defendant said That the said William Truelock in his life had paid unto his Co-Executors all such debts which in vita sua debuit to the said Scardenyll And also that the said William Truelock in his life time had Administred the Goods of Scardenyll with his Co-Executors And in this Case Iudgment was given for the Plaintiff and that for default of pleading For the Defendant ought to have shewed Acquittances of the payment of the debts to his Co-Executors and also ought to have shewed in Certainty what debts they were VII Hecks and Tirrell's Case 3 and 4 Phil. and Mary DEbt by Hecks and Harrison against Tirrell as Heir Who pleaded Nothing by Descent The Plaintiff Replyed 1 And. 28. Assets at such a place within the Cinque-Ports And so it was found by a Iury of the County adjoyning and Iudgment given of the moyety of his Lands aswell those by descent as by purchase And a Writ awarded to the Constable of Dover to extend the Lands within the Cinque-Ports But it was said That first the Plaintiff ought to have a Certiorari to send the Record into the Chancery and from thence by Mittimus to the Constable of Dover VIII The King and Due and Kirleys Case 4 and 5 Phil. and Mary THe King and Queen brought a Writ of Disceit against Due and Kirley and declared More Rep. 13 That one Colley was seised of certain Lands in Fee and held the same of the King and Queen as of their Mannor of Westbury the which Mannor is Ancient Demesne and so seised levies a Fine thereof to the said Due Sur Conusans de Droit come ceo c. Due rendred the Land to Colley for life the Remainder over to Kirley in Fee Colley died Kirley entred as in his Remainder Kirley pleaded That the Land whereof c. is Frank Fee c. Vpon which they are at Issue Which Issue depending and not tryed Due died It was moved in this Case That the Writ might abate But that was denyed by the Court. For this Action is but Trespass in its nature for to punish this Disceit and no Land is to be recovered but only the Fine Reversed IX Eliot and Nutcombs Case Mich. 4 and 5 Phil. and Mary
Eliz. In the Common Pleas. NOte It was said by Dyer and Brown Iustices That if a Man deviseth by his Will to his Son a Mannor in tail 2 Cro. 49. Yelv. 210. and afterwards by the same Will he deviseth a third part of the same Lands to another of his Sons they by this are Ioynt-Tenants And if a Man in one part of his Will deviseth his Lands to A. in Fee and afterwards by another Clause in the same Will deviseth the same to another in Fee they are Ioynt-Tenants XXVIII Drew Barrentines Case Mich. 8 Eliz. In the Common Pleas. THe Case was Drew Barrentine and Winifred his Wife were seised of the Mannor of Barrentine which is Ancient Demesne and holden of the Lord Rich as of his Mannor of Hatfield levy a Fine thereof Sur Conusans de droit c. by which Fine the Conusee rendreth the said Mannor to the said Drew and Winifred in special tail the Remainder to Winifred in tail the remainder to the Countess of Huntington in tail the remainder to the Heirs of the body of Margaret late Countess of Salisbury the remainder to the Queen in Fee It was moved by Bendloes Serjeant If the Lord Rich being Lord of the Mannor might reverse this Fine by a Writ of Disceit and so Recontinue his Seignory and he said That he might and thereby all the Estates which passed by the Fine should be defeated even the remainder which was limited to the Queen for by it the Fine shall be avoided to all intents Welsh Iustice Such a Writ doth not lie For by the remainder limited to the Queen by the Fine all mean Signories are extinct Then if it be so Disceit doth not lie If the Tenant in Ancient Demesne levieth a Fine and afterwards the Lord Paramount who is Lord of the Mannor doth release to the Conusee and afterwards the Lord of the Mannor brings a Writ of Disceit he gains nothing by it And if the Tenant in Ancient Demesne levieth a Fine of it and dieth and the Heir confirmeth the Estate of the Conusee and afterwards the Lord by a Writ of Disceit reverseth the Fine yet the Estate of the Conusee shall stand But all these cases differ from our case For in all those cases another act is done after the Action given to the Lord but in our case the whole matter begins in an instant quasi uno flatu and then if the principal be reversed the whole is avoided For the whole Estate is bound with the Condition in Law and that condition shall extend as well to the Queen and her Estate as to another And if Lands is Ancient Demesne be assured to the King in Fee upon Condition Now during the possession of the King the nature of the Ancient Demesne is gone but if the Condition be broken so as he hath his Land again it is Ancient Demesne as it was before and so the Estate of the Queen is bounden by a Condition in Law. XXIX Mich. 8 Eliz. In the Dutchy-Chamber NOte It was holden by Welsh in the Dutchy Chamber That whereas King Edw. the 6th under the Seal of the Dutchy had demised Firmam omnium tenentium at Will Manerii sui de S. That nothing but the Rent passed and not the Land for Firma signifies Rent as in a Cessavit de feodo firmae But the Clerks of the Court said That their course had always been to make Leases in such manner But Welsh continued in his Opinion as aforesaid And further he said That this was not helped by the Statute of Non-recital or Mis-recital c. for that here is not any certainty For sometimes Firma signifies Land sometimes Rent XXX Mich. 8 Eliz. In the Common Pleas. THis Case was holden for Law by the whole Court Two Coparceners are and one of them dieth her Heir of full age she shall not pay a Relief for if she should pay any at all she should pay but the moyety and that she cannot do for a Relief cannot be apportioned for Coparceners are but one Tenant to the Lord. XXXI 8 Eliz. In the Common Pleas. AN Action upon the Case was brought for stopping of a Way The Plaintiff declared That the Duke of Suffolk was seised of a House in D. and Leased the same to the Plaintiff for life And that the said Duke and all those whose Estate c. have used time out of mind c. to have a Way over the Lands of the Defendant unto the Park of D. to carry and recarry Wood necessary for the same House from the said Park to the same House and further declared That the Defendant Obstupavit the Way It was moved by Carns That upon this matter no Action upon the Case lieth but an Assise because that the Freehold of the House is in the Plaintiff and also the Freehold of the Land over which c. is in the Defendant But if the Plaintiff or Defendant had but an Estate for years c. then an Action upon the Case would lie and not an Assise All which was granted by the Court. Post 263. It was also holden That this word Obstupavit was sufficient in it self scil without shewing the special matter how as by setting up any Gate Hedge or Ditch c. for Obstupavit implyes a Nusans continued and not a personal disturbance as a Forestaller or in saying to the Plaintiff upon the Land c. that he should not go there or use that Way for in such cases an Action upon the Case lieth But as to any local or real disturbance Obstupavit amounts to Obstruxit And although in the Declaration is set down the day and the year of the Obstruction yet it shall not be intended that it continued but the same day for the words of the Declaration are further by which he was disturbed of his Way and yet is and so the continuance of the disturbance is alledged And of such Opinion also was the whole Court. Leonard Prothonotary said to the Court That he had declared of a Prescription habere viam tam pedestrem quam equestrem pro omnibus omnimodis Cariagiis and by that Prescription he could not have a Cart-way for every Prescription is stricti juris Dyer That is well Observed and I conceive that the Law is so and therefore it is good to prescribe habere viam pro omnibus Cariagiis generally without speaking of Horse-way or Cart-way or other Way c. XXXII Stowell and the Earl of Hertfords Case Mich. 8 Eliz. In the Common Pleas. IN a Formedom in the Remainder by John Stowel and R.R. against the Earl of Hertford the Case was That Lands were given to Giles Lord Daubeney in tail the remainder to the right Heirs of J.S. who had Issue two Daughters Agnes and Margaret and died The Donee died without Issue and the Demandants as Heirs of the said Agnes and Margaret brought a Formedom in the Remainder And it was awarded by the Court That the Writ should
abate For the Writ shall be brought by the Heir of the Survivor of the said two Daughters because they have that remainder as purchasors XXXIII Stuckly and Sir John Thynns Case Mich 9 Eliz. In the Common Pleas. THo Stuckly Administrator of the Goods and Chattels of one Tho. Curties Alderman of London brought Debt upon an Obligation against Sir John Thynn and demanded of him 1000 l. Et modo ad hunc diem venerunt Tam praefatus Tho. Stucklie quam praedict Johannes Thynn Et super hoc dies datus est usque Oct. c. in statu quonunc c. salvis c. At which day the Defendant made default and thereupon the Plaintiff prayed his Iudgment against the Defendant But the Opinion of the Court was That he could not have it but was put to process over because Dies Datus is not so strong as a Continuance XXXIV Luke and Eves Case Pasch 10 Eliz. In the Common Pleas. IN a Replevin by Luke against Eve The Defendant Avowed because that the Iury at such a Leet did present That the Plaintiff was a Resiant within the Precinct of the said Leet c. and that the Plaintiff was warned to appear there and notwithstanding that made default For which he was Amerced by the Steward there to 5 s. And so for that Amercement he avowed the taking c. The Plaintiff in bar of the Avowry pleaded That at the time of the said Leet holden he was not a Resiant within the Precinct of the said Leet Vpon which they were at Issue And it was found for the Avowant Whereupon Iudgment was given for the Avowant to have a Retorn XXXV Mich. 14 Eliz. Rott 1120. In the Common Pleas. THe Abbot and Covent of York Leased to J.S. certain Lands at Will and afterwards by Deed Indented under their Covent Seal reciting That whereas J.S. held of them certain Lands at Will they granted and demised that Land to the said J.S. to hold for life rendring the ancient Rent And by the same Indenture granted the Reversion of the same Land to a stranger for life It was holden by the Court clear That an Estate for life accrueth unto J.S. by way of Confirmation and the remainder unto the stranger depending upon the Estate created by the Confirmation XXXVI Sir Francis Carews Case Mich. 14 Eliz. In the Common Pleas. SIr Nicholas Carew seised of the Mannor of A. of which Mannor B. held certain Lands B. is disseissed by C. C. assures the same to Sir Nicholas Carew who is attainted of Treason by which Attainder the Mannor and Land cometh to King Henry 8th who thereof dieth seised and the same descends to King Edward the 6th who grants the same Mannor to the Lord Darcy who grants the same to Queen Mary who grants the same to Francis Carew Son of Nicholas Carew who by Fine assures the same to the Lord Darcy the Proclamations pass and the 5 years pass she who hath right to the Lands whereof the Desseisin was made being for all that time a Feme Covert And therefore the Fine did not bar her But because that the King was entituled to the Land by a double matter of Record and by the descent from Hen. the 8th to Ed. the 6th And also because a Seignory is reserved to the King upon the Grant made by King Edward the 6th to the Lord Darcy The Iustices were all of Opinion That the Entry of the Heir of the Disseisee was not lawful upon the Patentee of the Queen 2 Len. 122. but that she ought to be Relieved by way of Petition XXXVII Mich. 14 Eliz. In the Common Pleas. A Man brought an Action of Trespass against another for chasing of his Ewes being great with Lambs so as by such driving of them he lost his Lambs The Defendant justified because they were in his several Damage-feasans wherefore he took them and drove them to the Pound And it was holden by the whole Court to be no Plea for although that he might take yet he cannot drive them with peril c. XXXVIII Mich. 14 Eliz. In the Common Pleas. More Rep. 16 23. THe Case was A. made a Lease to B. for life and further grants unto him That it shall be lawful for him to take Fewel upon the premisses Proviso That he do not cut any great Trees It was holden by the Court That if the Lessee cutteth any great Trees that he shall be punished in Waste but in such case 1 Len. 117. the Lessor shall not re-enter because that Proviso is not a Condition but only a Declaration and Exposition of the Extent of the Grant of the Lessor in that behalf And it was holden also by the Court That Lessee for life or for years by the Common Law cannot take Fewel but of Bushes and small wood and not of Timber-Trees But if the Lessor in his Lease granteth Fireboot expresly if the Lessee cannot have sufficient Fewel as above c. he may take great Trees XXXIX Mich. 14 Eliz. In the Kings Bench. 2 Roll. 787. IN Trespass upon an Evidence given to the Iury at the Bar the Case appeared to be thus Land was given to A. in tail the remainder in Fee to his Sisters being his Heirs at the Common Law A. made a Deed in this manner viz. I the said A. have given granted and confirmed for a certain piece of Mony c. without the words of Bargained Sold And the Habendum was to the Feoffee with warranty against A. and his Heirs And a Letter of Attorny was to make Livery and Seisin And the Deed was in this manner To all Christian People c. And the Deed was enrolled within one month after the making of it And the Deed was Indented although that the words of the Deed were in the form of a Deed Poll And after 4 months after the delivery of the Deed the Attorny made Livery of Seisin A. died without Issue and the Sisters entred and the Feoffee ousted them of the Land and thereupon they brought an Action of Trespass And the Opinion of the whole Court was for the Plaintiff for here is not any Discontinuance for the Conveyance is by Bargain and Sale and not by Feoffment because the Livery comes too late after the Inrollment and then the Warranty shall not hurt them And although that in the Deed there be not any word of Indenture and also that the words are in the first person Yet in as much as the Parchment is Indented 2 Roll. 787. and both the parties have put their Seals to it it is sufficient Also It was clearly agreed by the Court That the words Give for Mony Grant for Mony Confirm for Mony Agree for Mony Covenant for Mony If the Deed be duly Inrolled that the Lands pass both by the Statute of Vses and by the Statute of Inrollments as well as upon the words of Bargain and Sale. And by Catline Wray and Whiddon the party ought to take by way
of Bargain and Sale and he hath not election to take the Land by way of Livery But when all is in one Deed and takes effect equally together in such case the Grantee hath Election but here in this Case the Bargain and Sale the Deed being Inrolled doth prevent the Livery and taketh his full effect before And by Wray and Catline If he in the Reversion upon a Lease for years grants his Reversion to his Lessee for years by words of Dedi Concessi Feoffavi and a Letter of Attorny is made to make Livery and Seisin the Donee cannot take by the Livery for that the Lessee hath the Reversion presently XL. Mich. 14 Eliz. IN an Ejectione Firmae the Case upon Evidence appeared to be thus The Bishop of Rochester Anno 4 E. 6. Leased to B. for years rendring Rent and afterwards granted the Reversion to C. for 99 years rendring the ancient Rent To have from the day of the Lease without impeachment of Waste which Grant was confirmed by the Dean and Chapter But B. did not Attorn And for default of Attornment It was holden by the whole Court That the Lease was void for it is made by way of grant of a Reversion and to pass as a Reversion But by Catline If the Bishop had granted the Reversion and also demised the Land for 99 years it should pass as a Lease to begin first after the former Lease determined And as to the Attornment it was given in Evidence That B. after the notice of the Grant to C. spake with C. to have a new Lease from him because he had in his Farm but 8 years to come but they could not agree upon the price And the Iustices were of Opinion That that was an Attornment because he had admitted the said C. to have power to make a new Lease unto him Also the said B. being in Company with one R. seeing the said C. coming towards him said to the said R. See my Landlord meaning the said C. Bromley Sollicitor That is no Attornment being spoken to a stranger Barham contrary because he was present And it was held by the whole Court to be a good Attornment But it was holden That if the Attornment was not before that the Bishop was translated to Winchester That the Lease should be void and although that the Confirmation of the Dean and Chapter was before the Attornment so as no Estate had vested in C. yet it is good enough for the assent of the Dean and Chapter is sufficient whether it be before or after by Catline Southcote and Whiddon Wray contrary XLI Mich. 14 Eliz. THe King seised of a Mannor to which an Advowson is appendant a Stranger presents and his Clerk is in by 6 months The King grants the Mannor with all Advowsons appendant to it to B. The Incumbent dieth The Grantee may present For the Advowson was always appendant and the Inheritance thereof passeth to the Grantee and is not made disappendant by the usurpation as in the case of a common person for the King cannot be put out of possession But the Patentee shall not have a Quare Imped of the first disturbance for that presentment doth not pass to him being a thing in Action without mention of it in his Grant. And if the Patentee bringeth a Quare Impedit of the second Avoydance he shall make his Title by the presentment of the King not making mention of the usurpation yet if the Bishop presenteth for Lapse in the case of a common person he ought to make mention of it for that is his Title to the Presentment c. XLII Humfrey and Humfrey's Case Mich. 14 Eliz. In the Common Pleas. BEtween Humfrey and Humfrey the Case was That the Defendant in Debt after Iudgment aliened his Land and the Plaintiff sued forth Execution upon the new Statute And the Court of the Request awarded him to the Fleet because that he sued forth Execution Whereupon the Iustices of the Common Pleas awarded a Habeas Corpus and discharged the Plaintiff It was said by Bendloes Serjeant That the Chancery after Iudgment could not enjoyn the party that he shall not sue forth Execution for if they do the party shall have his remedy as above XLIII Mich. 14 Eliz. In the Kings Bench. A Man seised of Copyhold Lands Deviseth a certain parcel of them to his Wife for life the remainder to his Brother and his Heirs And afterwards in the presence of 3 persons of the Court said to them I have made my Will and I have appointed all things in my Will as I will have it And afterwards he said And here I surrender all my Copyhold Lands into your hands accordingly And it was moved If all his Copyhold Lands should be to his Wife or by those which were specified in the Will. And the Opinion of the whole Court was That the Surrender is restrained by the Will so as no more passeth to the Wife upon the whole matter but that which is mentioned in the Will and the general words shall not enlarge the matter XLIV Hill. 14 Eliz. In the Common Pleas. LAnds were devised to the Mayor Chamberlain and Governors of the Hospital of St. Bartholomew in London whereas in truth they are Incorporated by another name yet the Devise is good by Weston and Dyer which Manwood also granted because it shall be taken according to the intent of the Devisor And it was said by Weston If Lands be devised to A. eldest Son of B. although that his name be W. yet the Devise to him is good because there is sufficient certainty c. XLV Pasch 14 Eliz. In the Common Pleas. THe Case was A. seised of Lands deviseth the same to his Wife for life the remainder to his three younger Sons and to the Heirs of their bodies begotten equally to be divided amongst them by even portions and if one of them die then the other two which survive shall be next Heirs The Devisor dieth One of the Sons dieth and by Dyer and Weston Iustices The 3 Brothers were Tenants in Common in remainder But contrary it is where such a Devise is made between them To be divided by my Executors c. there they are Ioynt-Tenants until the division is made but here although the words are Equally to be divided the same is not intended of a Division in fact and possession but of the Interest and Title For if a Man bringeth a Praecipe quod reddat de una parte Manerii de D. in 7 parts to be divided it is not intended divided in Possession but divided in Interest and Title And it was said by the said Iustices That although one of the Brothers dieth the two surviving Brothers have his part by purchase and not by descent and they are Ioynt-Tenants of it And this was the Case of one Webster and Katherine his Wife the late Wife of John Bradbury XLVI Pasch 14 Eliz. In the Common Pleas. THe Case was Lessee for years of the
but are moved for the pleasure of the parties What Resolutions shall we make by speaking at random Manwood As to the first Exception I nor my Brother Jeffery do not doubt of it but that the Plaint was good notwithstanding that it is not shewed that he was idonea persona for the Law shall intend him so to be until the contrary he shewed And so it is of a grant of an Annuity as long as he se bene gesserit the Law shall intend that he carrieth himself well until the contrary be shewed But as to the other Point That he doth not shew the death of the first Bishop my Brother Jeffery doubted of it but I make no doubt of it for that is but a Recital and the Plaintiff makes his title but from Bishop Alley and therefore that is not material nor parcel of his Plaint whether the predecessor of Alley be alive or not for he doth not derive any Title from him but from Alley Dyer Can a Bishop grant an Office in Reversion without title of Prescription that they have used so to do time out of mind And here no Prescription is laid that the Bishop might so do And then as I conceive the Reversion of the Office cannot be granted for there is not any Reversion of it and it is not like unto an Advowson which may be granted that the Grantee may present when it shall be next void And as I conceive No Reversion of any Office can be granted if not by the King who hath a special Prerogative For he reciting how that such an one hath such an Office for life he may grant that such a person shall have the same Office after the death of the first Grantee And so the Queen may grant the Reversion of such an Office as if she recite that such an one is Keeper of such a Park there she may grant the Keepership of it after the death of another But if a Common person will grant the Stewardship of his Courts after the death of such a person as is now Steward or the Reversion of it the same is not good For of Offices there is not any Fee or Reversion But a Nomination which the party hath to name what person he pleaseth when the same shall become void Manwood It is the Order in the Arches and in the Prerogative Court and of all the Courts of Pauls to grant the Offices in Reversion as in the Case of Doctor Drury and others who have the Reversion of every Office which doth belong to the Spiritual Courts Dyer I do not care nor regard what they do but what they ought to do and I do not respect the person of any one in relating the Law But it may be that by words of Covenant such a Covenant may be good And of late time here a Case hath been adjudged That where one prescribed that such an one might grant an Office cuicunque personae idoneae voluerit and the Grant was made to two and because the prescription did not warrant this manner of grant it was adjudged void for when the prescription is to grant alicui personae and not quibuscunque personis by that he cannot grant it but to one person and not unto divers because the prescription doth not extend so far Manwood I conceive there is a difference betwixt such persons who have Offices for life as the Admiral of England the Lord Treasurer the Iustices of the two Benches which have Offices incident to their Courts they cannot grant any of those Offices in Reversion But a Bishop hath a Fee and therefore the Cases are not alike Dyer he hath not prescribed in the person of the Bishop here but he hath said That the Custom is That the Bishop may grant the said Office whereas in truth if there were a prescription he ought to prescribe That the Bishop for the time being might grant the said Office in possession or in reversion And so as I conceive here no Office shall be granted in reversion unless by prescription which ought to be alledged And in the time of this Queen an Office of this Court was granted to Fry and his Son by the King and the Patent was shewed here in Court and rejected and it was said there was no place in Court for two to sit there and the Office might be exercised as well by one as by two and therefore the Patent was disallowed And although that Offices are granted to two as now in the Kings Bench of late time there is not any President to warrant the same and therefore as I conceive such a Grant is not good nor warranted by the Law for I do not regard in this Case against what persons I speak Mounson In the Chancery a Patent was granted to Bagot and Swirenden of an Office in the Chancery by King Henry the 6th and in 9 E. 4. it is is disputed Whether the Grant were good or not c. LIX Mich. Eliz. In the Kings Bench. THe Case was A Man Mortgageth his Lands to pay to the Mortgagee his Heirs Executors or Assigns a certain sum of Mony at a day certain The Mortgagee dieth and maketh his Heir within age his Executor and the Mortgagor pays the Mony at the day to the Heir It was holden The same shall be Assets in the hands of the Heir as Executor and that he hath not the Mony as Heir and he shall be charged with it within age LX. Mich. 15 Eliz. In the Common Pleas. THe Case was this A Man had made a Lease for 40 years to one by Indenture if the Lessee should so long live and afterwards by another Deed he demised the same Lands and Tenements to the same Lessee To have to his Executors and Assigns for 40 years after the expiration of the first Lease And Lovelace Serjeant demanded the Opinion of the Court the Lord Dyer being then in the Star-Chamber Whether in this Case the Lessee should have the Interest in the second Lease or his Executors or whether it was a void Lease Harper Iustice said That in every Lease there are 3 things incident to make it good 1. That there be a Lessor to make the Lease 2. That there be a Lessee to take the Lease And 3. That there be a thing which should be which should be let And then he said That here although that there be a Lessor and a thing which should be leased yet here there was not any Lessee For Executors are not until after the death of the Testator But he said That if a Lease be made for years or for life and that the Executors shall have the same for certain years after his death the same is good for there is an Interest of the Term. And if a Man maketh a Lease to begin at the month of Easter his Executors may have this Term because the same was an Interest of a Term in the Lessee and the Term shall be executed at Easter But here in this
months given to the Patron that he provide another Clerk in the mean time And there is a good Case in 14 H. 7. which was long debated Where the Ordinary commanded the Clerk to come to him afterwards to be examined because the Ordinary had then other business And there the better Opinion of the Book is That it was a good Plea for the Ordinary That he did not refuse the Clerk but that the Clerk did not return to him again and that the 6 months passed so as he made the Collation and that the Patron made his presentation too late so as he had not convenient time to examine him Then in the Case at Bar It was moved That when the Ability and Disability of the Clerk came in Question by whom the same should be tryed because in the Case here the Bishop of York was a party to the Suit Whether by the Metropolitan of York or by the Metropolitan of Canterbury And he said That as he conceived the Tryal of the Ability should be by the Metropolitan of York and not of Canterbury But he said That if the party in whom the disability was alledged was dead so as he could not be examined the Tryal of his Ability or Disability should be by the Country as it appeareth in the Book of 39 E. 3. Manwood Iustice The Cure of Souls is to be regarded and therefore if an Enfant be to make a Presentation the same shall not be stayed for his Nonage and therefore if in such case he doth surcease and shall not present his Clerk the Law which regardeth more the Cure of Souls than the Enfancy will permit that the Ordinary shall collate to the Church if a Presentment thereto be not made within the six months And he said That if the Patron should present one but a week before the end of the six months and the Ordinary should refuse him for disability If the Patron should have other six months then next after he might then likewise present an Enfant or other disabled person to the Ordinary and so detract the time by fraud and so the Lapse by such great fraud should never devolve to the Ordinary and so the Cure should be unserved And so the Issue would be and arise upon the conveniency of the time And as to that which hath been said concerning the Ability and Disability of the Clerk I conceive the same shall be tryed by the Metropolitan of Canterbury and not by the Metropolitan of York Mounson to that intent and he said There is a good case in 14 H. 7. 21. which is a short case and not the Case which hath been vouched by which it appeareth that the presentment that shall be within 6 months shall be accompted from the time of the Avoydance and not from the time of the presentment by the whole Court And there it is said That the Ordinary shall give notice to the Patron if he be a Lay-man of the Disability of the Clerk but not if he be a Spiritual person But if the party Presentee be Criminous of that the Patron shall take as well notice as the Ordinary And afterwards the Lord Dyer caused the Record to be read and it did not appear therein at what day the Presentment was made to the Ordinary which ought to have been shewed for the great point of the Case doth rest here upon the time of the Presentment if it were before a week that the six months were ended or not Also the Ordinary saith in his Bar That the Clerk was insufficient and that he gave notice to the Plaintiff and that Nullam idoneam personam praesentavit And the Court said That that was no good manner of pleading but it had been better if it had been Nullam etiam personam idoneam praesentavit and the first form would be a Jeosail Manwood said That the time of the notice given to the Patron ought to be alledged because if the Patron sends his Clerk within a month after the Avoydance and the Ordinary will not give notice to the Patron in the mean time the same shall not be any default in the Patron And as to the notice given to the Patron he said the same was well pleaded and it shall be intended that it was given to the person of the Patron And as to the words in the Declaration scil tunc vacantem they are but void words because nothing is spoken before of any time And the Incumbent pleaded the same Plea as the Ordinary pleaded And Dyer asked If the Incumbent were Person impersonee for that none should plead that Plea but he who is Parson in fact and Incumbent LXVII Mich. 15 Eliz. In the Common Pleas. THe Case was That an Information was exhibited into the Court of Common Pleas for the Queen and the party upon a Penal Law And a Subpoena issued forth against two one of them was served with the Writ and the other not and now a new Subpoena was prayed against him who was not served And Dyer Iustice conferred with his Companions and the Prothonotary and demanded of them If the Plaintiff might Exhibit an Information in this Court Who answered That he might for this is a Court of Record and the Statute Law limiteth That it may be exhibited in any of the Queens Courts of Record Then he demanded of them If a Subpoena lay out of this place And Whetley Prothonotary said That it did Dyer said It is a strange thing to have an Attachment at the first day Manwood said In this Court it is the common usage upon an Audita Querela to award a Venire facias against the Conusee Dyer said to the Prothonotaries Advise with your selves against the morrow What Process hath been used to issue forth upon the Presidents of Information which have been before this time If a Subpoena shall be awarded And afterwards it was said by Gawdy who moved for it That he might have a Subpoena upon this matter LXVIII Mich. 15 Eliz. In the Common Pleas. NOte A special Verdict was found at the Bar and the Issue was taken upon a Traverse And Dyer Iustice said That a special Verdict could not be taken upon a Traverse but precisely according to the Issue and so it was agreed by the whole Court here but some Serjeants at the Bar did doubt of it LXIX Mich. 15 Eliz. In the Common Pleas. IN an Ejectione firmae the Case was thus King Henry the 8th was seised of certain Lands and by his Letter Patents granted the same to Thomas Holt for life the remainder to John Holt his Son who in truth was a Bastard and the Letters Patents were Ex certa scientia mero motu c. And because the Plaintiff did suppose that the same was not a good Purchase he tooke a Lease from the Queen of the Lands intending to make void the Letters Patents because the Defendant was nullius filius And what difference there was in such a Case in Case of the
King and a Common Person was moved to the Court by Lovelace Serjeant Dyer Iustice I conceive That it is a good Purchase in Law as well in the Case of the King as in the Case of a Common Person And see to that purpose 39 E. 3. and in this Case If the King had granted the Land to John Holt without naming him Son the same had been a good Purchase But if the King had called him John the Son of Thomas without giving him a sirname there such a Purchase should not be good if he were a Bastard because he hath not Nomen Cognitum as where he hath a sirname and a Man cannot purchase by the Name of John only and then if he be called John the Son of Thomas when he is not his Son it cannot be good And such Case hath here lately been adjudged Where the Lord Powis gave certain Lands to Thomas Gray his Son by him begotten upon the Body of Jane Orwell and in truth the said Thomas was a Bastard of the said Lord Powis and the name of Jane was not Orwell but the Daughter of one Punt and the Mother of Jane who was first married to Punt betwixt whom Jane was begotten married with one Orwell and yet notwithstanding that wrong Name and that the said Thomas Gray was not the Son of the Lord Powis born of Jane Orwell but of one Jane Punt yet it was a good Purchase and Gift to Thomas Gray because it was his known Name Manwood As I take it the Letters Patents are Ex certa scientia ex mero motu and then the Kings Grant shall not be taken in such plight as the Grant of a Common Person void for incertainty because that the King takes notice of the Person of what degree he is and in the Kings Case where he takes knowledge by the words Ex certa scientia there all matter of uncertainty shall be avoided and made good but not matter which is not true And for uncertainty he said Where a thing may be taken two ways there without the words Ex certa scientia c. the best shall be taken for the King and strongest against the Patentee But by Dyer by the words Ex certa scientia c. that incertainty is saved and shall be taken strong for the Patentee and if it can any ways be taken for him then the Patent shall not be void and then when in the principal Case there is the word Son and the word Son may be taken two ways either for a base Son or a true Son there by the words Ex certa scientia the King taketh upon him to know in what manner he is Son and a base Son is a Son Quodam modo so as the Letters Patents shall not be false But where the King in his Letters Patents recites a thing which is false that shall not make the Patent good although the words be Ex certa scientia et mero motu LXX Mich. 15. Eliz. In the Common Pleas. NOte It was agreed by the Court That if a Man in a Replevin pleadeth and they are at Issue and the Iury is charged and gone from the Bar and returns to give their verdict and the Plaintiff be non-suit their retorn irreplevisable shall not be awarded as in case if a verdict had been given But the party may have a Writ of second Deliverance as well as if he had been nonsuit before declaration or appearance LXXI Trin. 15 Eliz. In the Common Pleas. THe Case was The Husband levied a Fine of his Land and died and his Wife within the 5 years after the death of her Husband brought her Writ of Dower but did not pursue her Writ until 6 years were past and then she would have revived her Suit. And Meade Serjeant demanded the Opinion of the Iustices If the Wife should be barred of her Dower or not And by Manwood Iustice it was moved again If they at the Bar did agree That if a Fine be levied by the Husband and the Wife doth not make her claim within the 5 years if for that she shall be barred And he conceived That she should not be barred For he said That he who hath Title to the Land at the time of the Fine levied if he doth not sue within 5 years after his Title accrued should be barred But where the Title accrues after the Fine there he who hath Title shall not be barred by the 5 years but he may come 30 years after and make his Title and Claim But in the principal case he said That if the Fine had been levied after the death of the Husband there the Wife should be barred if she did not pursue her Right and Claim within 5 years And he agreed That if the 5 years be a Bar here that then by the Wives suffering of her Writ of Dower to be discontinued till after the 5 years were past that she should be barred because vigilantibus non dormientibus subveniunt Leges Harper said That the Discontinuance should be no Bar unto her For he said That if a gift be made to one in tail the Remainder over and Tenant in tail dieth without Issue and he in the Remainder brings a Formedon in the Remainder within 5 years and discontinueth it yet it is no Bar but that after the 5 years ended he may revive his Suit Which Manwood denyed And then Dyer came into the Court and the Case was moved to him And he said That the not prosecuting of the Action by the Wife should be a Bar unto her and that the Marriage which was before the Fine was the cause of Dower although she could not come to be endowed until after the death of her Husband And he said That the Wife could make no other to have her Dower but only by bringing of her Writ of Dower and therefore if she did surcease her time until the 5 years were past that her new claim by her new Writ would not revive the Ancient Claim and that therefore she should be barred For she could not enter into the Land to defeat the Fine And he said That as to the principal Case That it was adjudged Anno 4 H. 8. And it was also said by the Court That an Assignment of Dower made to the Wife in the Court of Wards was no sufficient claim of the Wife because she cannot have a Writ of Dower there and there by this surceasing of her demand of her Dower for the 5 years at the Common Law that she should be barred LXXII Trin. 15 Eliz. In the Common Pleas. THe Case was A Man made a Lease for years and the Lessee Covenanted to make Reparations The Lessor granted the Reversion to another and the Lessee for years made his Wife his Executrix and died It was holden in this Case by the Court That the Grantee of the Reversion should not recover damages but from the time of the Grant and not for any time before But yet the
Land therefore it is in the Land or within the Land i. e. the Mannor For the King may distrain for the Fine as well in the same Land as in the Land of him who ought to pay it Dyer doubted of it and said That the Bishop could not distrain in the Land for this Fine but should have it by allowance in the Exchequer upon the Estretes and if the party would not pay it the Lessee should have a Subpoena against him out of the Exchequer And some were of Opinion That the Lessee could not have this Fine 2 Len. 179. 4 Len. 234. for that they were not Hereditaments within the Mannor but rather in the Exchequer or Court where the Record is LXXXII Mich. 15 Eliz. In the Common Pleas. THe Case was A Man seised of a Pasture in which are two great Groves and a Wood known by the name of a Wood And also in the same Pasture there are certain Hedge-Rowes and Trees there growing Sparsim Leased the same by Indenture for years And by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses And further That it shall and may be lawful to the Lessee to cut down and carry away all the same at all times during the Term. Harper The Hedge-Rowes do not pass by these words for they are not known by the name of Woods 14 H. 8. 2. contrary by Manwood For by such words Hedge-Rowes pass Mounson contrary For the words of the Grant may be supplyed by other Words Dyer The Hedge-Rowes shall pass for the Grant is general All Woods It was moved further If by those words the Lessee might cut them a second time or but once Harper Manwood and Mounson He may cut them but once Dyer contrary And so it should be if the words had been Growing upon the Premisses And this word Growing although it sounds in the present Tense yet it shall be also taken in the future Tense if not that the word tunc had been there for that is a word of Restraint The Case was argued in the Exchequer Chamber where I was present which was The Prior of St. John's Leased a Commandry Provided That if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void It was doubted If that Proviso did extend to the Successors for the word Being is in the present Tense And yet by the Opinion of Fitzherbert it shall be taken in the future Tense and so extend to the Successors Otherwise if the words had been Now being LXXXIII Mich. 15 Eliz. In the Common Pleas. A. Made B. his Executor and died Vid. le stat 43 Eliz. cap. 8. Office of Executors 261. B. to the intent to defraud the Creditors refused to take upon him the Executorship but caused a stranger to take upon him Letters of Administration which stranger fraudulently gave the Goods of the Testator to B. Dyer If the gift be fraudulent then by the Statute of 13 Eliz. the gift is void and then B. by the Occupation of the Goods shall be charged as Executor of his own wrong Manwood I conceive there is a difference If one makes an Executor and another takes the Goods but doth no Act which concerns the Office of an Executor as paying of Debts he is not Executor of his own wrong but a Trespassor to him who is Executor in right but if he doth any Act which belongs to the Office of an Executor then he is Executor of his own wrong Dyer That Case hath been adjudged against you and although the Books of 9 E. 4. 22 H. 6. were vouched Yet Iudgment was given against the Opinion of Manwood It was the Case of one Stoke LXXXIV Jackson and Darcyes Case Mich. 16 Eliz. In the Common Pleas. IN a Writ de Partitione facienda between Jackson and Darcy the Case was Tenant in tail the remainder to the King levied a Fine had Issue and died In that case It was adjudged That the Issue was barred and yet the remainder which was in the King was not discontinued For by that Fine an Estate in Feesimple determinable upon the Estate tail did pass unto the Conusee LXXXV Strowds Case Hill. 17 Eliz. In the Common Pleas. IN a Replevin the Case was That Lands holden of a Subject came to the possession of the King by the Statute of 1 E. 6. of Chauntries and the King granted the Lands over In that case It was holden That the Grantee shall hold the Lands of the King according to the Patent and not of the Ancient Lord But the Patentee shall pay the Rent by which the said Land was before holden as a Rent seck distrainable of Common Right to the Lord only and his Heirs scil to him of whom the said Lands were before holden LXXXVI Tresham and Robins Case Mich. 17 Eliz. In the Kings Bench. TResham brought an Action of Debt upon a Recognizance against Robins The Condition of which Recognizance was To stand to the Arbitrament of A. and B. who made Award That Robins should have the Land Yielding and paying 10 l. per annum And that Tresham in further assurance should levy a Fine to Robins of the same Land and upon that Robins should grant and render to Tresham which is done accordingly the Rent is behind Tresham brought Debt upon the Recognizance The Defendant pleaded the special matter with this per close Unde petit Judicium if the Plaintiff should have Execution against him And by the Opinion of the whole Court the Conclusion of the Plea is not good For here is not any Execution of the same Debt but an Original Action of Debt brought in which case he ought to have concluded Iudgment Si actio It was further moved If these words Yielding and paying make a Condition And it was agreed That the words do amount to as much as So as he pay the Rent And if a Man makes a Feoffment in Fee Reddendo salvendo 10 l. for years the same is a Condition But in the principal Case It is not a Condition For it is not knit to the Land by the Owner it self but by a stranger i. e. Arbitrator but it is a good Clause to make the same an Article of the Arbitrament which the parties are bound to perform upon pain of forfeiture of the Recognizance Which Wray concessit And that this Rent should not cease by Eviction of the Land. LXXXVII The Earl of Westmerlands Case Hill. 18. Eliz. In the Common Pleas. THe Earl of Westmerland seised of a Mannor whereof the Demesnes were usually let for three Lives by Copy 2 Len. 152. 2 Brownl 208. according to the Custom of the Mannor granted a Rent-charge to Sir William Cordell pro consilio impendendo for the term of his Life and afterwards conveyed the Mannor to Sir William Clifton in tail The Rent is behind Sir William Cordell dieth Sir William Clifton dieth
Parliament 35 H. 8. it was Enacted That the said Lady should hold part of her Inheritance and dispose of the same as a Feme sole and that the Marquess should have the Residue and that he might Lease the same by himself without his Wife for 21 years or less rendring the ancient Rent being Land which had been usually demised c. The Marquess Leased for 21 years and afterwards durante Termino praedict Leased the same Land to another for 21 years to begin after the determination of the first Lease It was moved in this Case That this last Lease was void and that for 3 Causes 1. Because the Marquess had but an Estate for life and then it could not be intended that the Statute did enable one who had but such an Estate determinable to make such a Lease which peradventure might not commence in his life-time 2. The Letter of the Statute is 21 years or under and the word Under strongly expounded the meaning of the Statute to be not to extend to such an Estate For here upon the matter is a Lease for 40 years 3. Because the Land demised is the Inheritance of the Wife And in this Case it was said That in the Case of one Heydon such a private Act was strictly construed which was That it was Enacted That all Copies for 3 Lives granted by the Lord Admiral of the Lands of his Wife should be good The Admiral granted Leases in Reversion for 3 Lives And it was holden That that Grant was not warranted by the Statute Dyer said The words are general Omnes dimissiones and therefore not to be restrained unto special Leases scil to Leases in possession Manwood said A Feme Covert by duresse joyns in a Lease with her Husband the same shall bind her CXI The Queen and Sir John Constables Case Hill. 20 Eliz. In the Kings Bench. 5 Co. Constables Case A Quo Warranto was brought by the Queen against Sir John Constable who claimed certain Wreck in the County of York The Defendant pleaded That Edward Duke of Buck. was seised of such a Mannor to which he had Wreck appendant and that he was de alta proditione debito modo attinctus and that found before the Escheator And shewed further That the said Mannor descended to Queen Mary who granted the same to the Earl of Westmerland who granted the same to the Defendant Vpon which It was demurred And Exception was taken to the Plea because the Attainder is not fully and certainly pleaded It was argued by Plowden That the Attainder was certainly pleaded scil debito modo attinctus And it is shewed That the Wreck is appendant to the Mannor and then if the Defendant hath the Mannor he hath the Wreck also and if he hath the Mannor it is not material as to the Queen how he hath it for the Queen doth not claim the same but impeacheth the Defendant for using there such a Liberty But if the Heir of the said Duke had demanded the Mannor there against him the Attainder ought to have been pleaded certainly And it was said by him That the Interest of the Queen in the Sea extends unto the midst of the Sea betwixt England and Spain But the Queen hath the whole Iurisdiction of the Sea between England and France because she is Queen of England France c. And so it is of Ireland CXII Hill. 20 Eliz. In the Common Pleas. TEnant for life made a Feoffment of White-Acre of which he was seised for life and made a Letter of Attorny to deliver Livery and Seisin secundum formam Chartae before Livery the Tenant purchased the Fee and afterwards Livery was made It was resolved by the Court in this Case That all passed But if the Feoffment had been of all his Lands in D. and the Letter of Attorny accordingly and before Livery made the Feoffee had many Lands there If he purchased one Acre after the Livery should not extend to that Acre because the Authority was satisfied by the other Acre CXIII Banks and Thwaits Case Mich. 21 Eliz. In the Kings Bench. IN an Action upon the Case the Case was That A. had pawned an Indenture of Lease for years of a Messuage and Lands to Banks Thwaits intending to purchase the same required Banks to deliver him the said Lease and he would give Banks 10 l. whether he bought it or no at what time he would request the 10 l. Post 200. And Banks delivered the same to Thwaits accordingly Post 200. And afterwards brought an Action upon the Case and declared upon the whole matter and concluded Licet saepius requisitus c. without alledging a request express in certain and the day and place of it It was said by Cook That here the monies did not grow due before Request nor is payable before Request and therefore a Request ought to be made in facto And so he said It was ruled in this Court in an Action upon the Case betwixt Palmer and Burroughs and he said that the Mony was not due by the Promise but by the Request And it was the Opinion of the whole Court That although it be a duty Yet it is not a duty payable before Request And the Request makes a Title to the Action But if A. selleth to B. a Horse for 10 l. there is a Contract and a Request in facto need not be layed And the Opinion of the Court was also That upon this matter the Plaintiff could not have an Action of Debt for there is not any Contract for the thing is not sold but it is a Collateral promise grounded upon the delivery And by Clench Here the Request is traversable And afterwards Iudgment was given against the Plaintiff And it was said It was so ruled in Alderman Pullisons Case in the Exchequer Post 201. CXIV Segar and Boyntons Case Mich. 21 Eliz. In the Common Pleas. 2 Len. 156. IN Trespass the Case was this King Henry the 8th Anno 27 of his Reign gave the Mannor of D. to Sir Edward Boynton Knight and to the Heirs Males of his body Sir Edward Boynton had Issue Andrew his eldest Son and C. the Defendant his younger Son and died Andrew Boynton Covenanted by Indenture with the Lord Seymore that the said Andrew Boynton would assure the said Mannor to the use of himself for life the Remainder to the said Lord and his Heirs The said Lord Seymore in recompence thereof should assure other Lands to the use of himself for life the remainder to the use of the said Andrew Boynton in tail who 37 H. 8. levyed a Fine of the said Mannor without proclamations to two strangers to the uses according to the said Agreement and before any Assurance made by the said Lord The said Lord was Attainted of Treason and all his Lands were forfeited to the King And afterwards the said Andrew Boynton made a Suggestion to Queen Mary of the whole matter and upon his humble Petition the said
he conceived That this Clause ex uberiori gratia did extend to pass more than passed before For he conceived That the Queen intended more liberally viz. the Reversion For this is not any matter of Prerogative but the same is a matter of Interest which might also in the Kings Case pass out of the King by general words See 3 H. 7. 6 7 Br. Patents 48. A Grant of the King ex insinuatione doth not hinder the force of the words ex mero motu And it was the Opinion of the whole Court That the Reversion which was in the King did not pass by that Grant For the whole scope of the Patent was as he conceived to grant only that which the King had then ratione attincturae Anderson conceived the Patent insufficient because the Petition was not full and certain Also he said That ex speciali gratia c. would not help this Case For the Estate tail is not recited but only that he was seised de Statu haereditario c. so the Queen was deceived c. Periam contrary The Queen was advised of the Mischief and granted such Estate with which he parted by the Fine And as to the other Point Walmesley conceived That the Fine with proclamations should bind the tail And as to the Objection which hath been made That the Conusor at the time of the Fine levied was not seised by force of the entail The same had been a good matter to have alledged to avoid a Common Recovery in the Tenant to the Praecipe but not to this purpose For if there be Tenant in tail and he levieth a Fine although he was not seised at the time of the Fine levied by force of the entail yet such a Fine shall bind the issue So if Tenant in tail discontinueth and disseiseth the Discontinuee and so levies a Fine And he conceived That the issue in tail is bound by the Statute of 4 H. 7. even of the Gift of the King. See 19 H. 8. 6 7. Where it is holden That the Issue in tail is bound by the Statute of 4 H. 7. And where it hath been Objected That it doth not extend but to such Fines which make Discontinuance at the Common Law The same is not so For if Tenant in tail of a Rent or Common levieth a Fine with proclamations it is clear that the issues shall be barred by it And he much relyed upon 29 H. 8. Dyer 32. Tenant in tail of the Gift of the King levieth a Fine or suffereth a Common Recovery although it be not a Discontinuance because that the Reversion is in the King yet it is a bar unto the Issue But Note That that was before the Statute of 34 H. 8. See Wisemans Case 27 Eliz. Cook 2 Part. And see the Lord Staffords Case 7 Jac. Cook 8 Part 78. CXV Mich. 21 Eliz. In the Common Pleas. A Man seised of Lands called Hayes 3 Cro. 674. 2 Cro. 21 22 which extended into two Towns A and B. Devised Hayes-Land in A. to his Wife for life and after to his Son and if the Son die without issue then Hayes-Land shall remain to his 3 Daughters c. The Son died without issue It was the Opinion of Anderson and Periam Iustices That all Hayes-Land should not pass by the said Devise but only that which was in A. CXVI Henry and Brode's Case Mich. 21 Eliz. In the Common Pleas. IN an Action of Trespass the Plaintiff declared That the Defendant simul cum J. S. and another Clausum suum fregit 1 Len. 41. And Exception was taken to it because here it appeareth upon the Plaintiffs own shewing That the Trespass whereof c. was made by the Defendant and another and therefore the Writ brought against Brode only was not good But if it had been simul cum aliis ignotis personis It had been good enough But here the Plaintiff hath confessed another person trespassor with the Defendant See 2 H. 7. 15. 8 H. 5 5. 14 H. 4. 22. Yet afterwards in the principal Case Iudgment was given for the Plaintiff CXVII Barker and Taylers Case Mich. 21 Eliz. In the Common Pleas. 3 Co. Sir George Browns Case THe Case was A Woman Tenant in tail within the Statute of 11 H. 7. accepted a Fine Sur Conusans de droit come ceo c. and by the same Fine rendred the Land to the Conusor for 1000 years It was moved If this Conveyance and Disposition was within the penalty of the Statute For the Statute speaks of Discontinuances c. And it was the clear Opinion of the Court That the same is within the Statute for by such practice the meaning of the Statute might be defeated And if such Render for a 100 years should be good by the same reason for 1000 years which is as great a mischief and as dangerous to those in Reversion as Discontinuances And by Rhodes Iustice It hath been adjudged That if a Woman who hath title of Dower if before she be endowed she will enter and levy a Fine the same is within the said Statute and yet she is not Tenant in Dower See 5 Mar. Dyer 148. Penicocks Case And 36 Eliz. Cook 5 Part. Sir George Brown's Case CXVIII Mich. 21 Eliz. In the Kings Bench. 2 Len. 221. Ante 9. A By his last Will willed That his Lands should descend to his Son but willed That his Wife should take the profits thereof untill the full age of his said Son of 21 years to maintain and bring him up and died The Wife took Husband and died during the nonage of the Son It was the opinion of Wray and Southcote Iustice That the second Husband should not have the profits until c. For nothing is devised to the Wife but a Confidence and she is as a Guardian or Bailiff to aid the Enfant which by her death is determined and cannot accrue to the Husband But if the Husband had devised the profits of the Land to the Wife until the age of the Enfant for to bring up and educate Ut supra Wray said The same amounted to a devise of the Land and so a Chattel in the Wife which should accrue to the Husband CXIX Stamps Case Mich. 24 Eliz. In the Common Pleas. THe Case was John Stampe being possessed of a Term for years granted the same to Thomas Stampe his Brother 12 May 20 Eliz. And afterwards 8 Octob. 21 Eliz. he himself being in possession of it Mortgaged the same to one P. who suffered him to continue his possession Thomas Stampe granted his Estate to John Stampe who mortgaged the same to one G. who suffered the said John Stampe to continue in possession until 10 December 22 Eliz. G. entred John Stampe came to the said P. and requested him that he would grant all his Estate to B. and C. to whom the said John Stampe was endebted for security of their Monies To whom the said P. said That if he would find
him any other surety for his Debt he is contented so to do And John Stampe offered to the said P. the said B. and C. and he accepted the same and at the request of the said John Stampe granted his Interest to them 2 Feb. 22 Eliz. P. having notice of the Grant before made to the said G. Vpon which G. enformed against P. upon the Statute of 32 H. 8. It was holden in this Case by Periam and Meade Iustice That P. was not within the penalty of the Statute For P. granted his Interest to B. and C. at the suit and at the request of John Stampe who was the Mortgager for assurance of his Debt which he ought to them And therefore it shall not be intended that that Grant was made for any maintenance or for any unlawful cause against the Statute And also John Stampe who granted unto P. had possession and received the Issues and Profits of the said Lands for a whole year before the Grant notwithstanding that he was not in possession by a whole year next before the day of the date of the Grant. Godb. 450. As if a Man be in possession or hath received the Issues and Profits for a whole year and afterwards a stranger enters upon him and hath the possession for the space of a Quarter of a year or half a year yet he who was in possession by a year before may grant his Interest without danger of the Statute c. CXX Pasch 24 Eliz. In the Kings Bench. NOte Per totam Curiam 2 Len. 35. A man made his Will in this manner scil I Will and Bequeath my Land to A. And the name of the Devisor is not in the whole Will Yet the Devise is good enough by Averment of the name of the Devisor And for proof that the same is his Will If one lying in extremis having an intent to devise his Lands by Word makes such devise but doth not command the same to be put in writing but another without the knowledge or Commandment of the Devisor putteth it in writing in the life-time of the Devisor the same is a good Devise For it is sufficient if the Devise be reduced into writing during the life of the Devisor CXXI Pepy's Case Pasch 25 Eliz. In the Common Pleas. WAste was brought by F. and his Wife against Pepy and declared That the said Pepy was seised and enfeoffed certain persons to the use of himself for life and afterwards to the use of the Wife of the Plaintiff and her Heirs The Defendant pleaded That the said Feoffment was to the use of himself and his Heirs in Fee c. absque hoc that it was to the uses as in the Count Vpon which they were at Issue And it was found by Verdict That the said Feoffment was to the uses contained in the Count but further found That the Estate of the Defendant by the Limitation of the use was priviledged with the impunity of Waste scil without Impeachment of Waste It was moved If upon that Verdict The Plaintiff should have Iudgment Anderson and Rhodes Iustices conceived That he should for that the matter in Issue is found for the Plaintiff and that is the Feoffment to uses contained in the Count and this impunity of Waste is a Forreign matter not within the Charge of the Iury and therefore the finding of the same is but matter of surplusage As if I plead a Feoffment of J. S. to which the other pleads That he did not enfeoff and the Iury find a Conditional Feoffment the Court shall not respect the finding of the Condition for it was not in Issue and no advantage shall be ever had of such a Liberty if it be not pleaded 30 H. 8. Dyer 41. In Dower the Tenant pleaded Ne unque seisi que Dower c. The Tenant pleaded That before the Coverture of the Demandant one A. was seised and gave the Land whereof Dower is demanded to the Husband of the Demandant in tail who made a Feoffment A stranger took the Demandant to Wife took back an Estate in Fee and died seised having Issue inheritable Now although upon the truth of the matter she is nâ—t Dowable de jure yet forasmuch as the parties were at Issue upon a point certain no forrein nor strange matter not in Question betwixt the parties shall be respected in the point of Iudgment But if the Defendant had pleaded it in Bar he might have foreclosed the Demandant of her Dower See 38 Ass 27. 47 E. 19. In a Praecipe quod reddat upon the default of the Tenant came one and shewed How that the Tenant who made default was but Tenant for life of the Lands in demand the Reversion in Fee to himself and prayed to be received The Demandant counterpleaded the Resceit Dicendo That the Tenant had Fee c. Vpon which Issue was taken And it was found That neither the Tenant nor he who prayed to be received had any thing in the Land. And in that Case The Court did not regard the matter which was superfluous in the Verdict For they were at Issue upon a point certain scil whether the Tenant was seised in Fee For it is confessed of the one side and of the other that he had an Estate for life and of that matter the Iury was not charged and they are not to enquire of that And so it is found against the Demandant by which the Resceit was granted See 7 H. 6. 20. The parties were at Issue upon a Dying seised which is found by Verdict but the Iury find further That the other party made continual Claim The said continual Claim shall not be respected in point of Iudgment because it was not pleaded in Avoidance of the Disceit c. Windham Iustice to the contrary because it appeareth to us upon the Verdict That the Plaintiff hath not cause of Action and therefore he shall not have Iudgment As in Detinue the Plaintiff declares upon a Baylment by his own hands The Defendant pleads Ne Detinue pas the Iury find the Detinue but upon Baylment by another hand In that case notwithstanding that the Detinue be found yet the Plaintiff shall not have Iudgment But Anderson Rhodes and Periam conceived That in the principal Case Iudgment should be given for the Plaintiff For in no case the party shall have advantage of that liberty of impunity of Waste if he doth not plead it And the Iurors are not to meddle with any matter which is not in issue and if they do It is but matter of surplusage and to no purpose and afterwards Iudgment was given for the Plaintiff See the Number Roll Pasch 25 Eliz. Rot. 602. CXXII Skipwith's Case Pasch 20 Eliz. In the Common Pleas. IN an Action of Trespass It was found by a special Verdict Godbolt 14 143. Co. of Copy-holds 94. That the Lands were Copy-hold Lands That the Custom of the Mannor was That Quaelibet Foemina Viro Co-operta poterit
devise Lands of which she was seised of an Estate of Inheritance in Fee simple according to the Custom to her Husband And also Surrender the same in the presence of the Steward and 6 other of the Tenants And it was further found That one J.S. was seised of the Copy-hold Lands wherein the Trespass was And that he had Issue 2 Daughters and died seised of the said Lands And that after his Decease his two Daughters entred into the said Lands and afterwards they both took Husbands And that afterwards one of the said Daughters made a Will in writing and by her said Will in the presence of the Steward and six of the Tenants she Devised her part of the said Copy-hold Lands to her Husband and his Heirs and at the next Court surrendred the said Copy-hold Lands in the presence of the Steward and six other of the Tenants to the uses in her Will expressed and shortly after she died and that after her death her Husband was admitted to the said part of her Lands who continued the possession thereof And the Husband of the other Daughter and his Wife entred upon him Vpon whom he re-entred And the Husband brought Trespass This Case was argued at the Bar by Rhodes And he said That the Custom was not good neither for the Devise nor for the Surrender First for the incertainty of the Estate what Estate she might Devise for that is not expressed in the Custom but generally that she might Devise her Copyhold Lands of Inheritance without expressing for what Estate And secondly the Custom is not good for that it is against reason that the Wife should surrender to the use of her Husband And that a Custom to devise is not good where it is incertain he vouched many Cases As 13 E. 3. tit Dum fuit infra aetatem 3. The Tenant said That the Lands lay in the County of Dorset where the Custom is That an Enfant might make a Grant or a Feoffment when he could number 12 d. and because it is incertain when he could do it It was holden to be a void Custom So 19 E. 2. tit Gard. 127. In a Ravishment of Ward It was alledged that the Custom was That when an Enfant could measure an Ell of Cloath or number 12 d. that he should be out of Ward And it was holden to be a void Custom for the incertainty Also he said That in the principal Case the Custom was void for that it was against reason that the Wife should surrender to her Husband for every Surrender is a Gift and a Woman cannot give unto her Husband for the Wife hath not any disposing Will but the Will of her Husband only And therefore the Case is in 21 E. 3. That if the Husband be seised of Lands in the right of his Wife and he maketh a Feoffment in Fee of the Lands and the Wife being upon the Lands doth disagree and saith She will not depart with the Land during her life yet the Feoffment is a good Feoffment and shall bind the Wife during the life of the Husband And see 3 E. 3. Br. tit Devise 43. That a Feme Covert cannot Devise to her Husband for that should be the Act of the Husband to convey the Lands to himself And whereas the Case in 29 E. 3. was Objected against him where the Case was That a Woman being seised of Land deviseable took a Husband and had Issue by him and the Wife Devised her Lands to her Husband for his life and died and a Writ of Waste was afterwards brought against him And it was there holden That the Writ did lie He said That that Case did make rather for him than against him for that Case proves that the Husband did not take the Land by vertue of the Devise in his own right but that he held the Lands having Issue by the Wife as Tenant by the Courtesie and so under another Title and therefore it appeareth that the Writ of Waste was there brought against him as Tenant by the Courtesie Also he said That the Devise was void by the Statute of 34 H. 8. Cap. 5. where it is Enacted That Wills and Testaments made of any Lands Tenements c. by Women Coverts shall not be good or effectual in the Law and he said That that Statute did extend to Copyhold Lands But as to that all the Iustices did agree That Copyhold Lands were not within the words of that Statute But Anderson said That the Equity of that Act did extend to Copyholds And further Anderson said That the Prescription or Custom in the principal Case was not good for it is layed to be That Quaelibet Foemina Viro Co-operta poterit and it ought to be potest and by the Custom have used to Devise to the Husband And a Prescription must be in a thing done and not in posse Also he said That the Custom if it were good is not well pursued For the Custom is that she may Devise and Surrender in the presence of the Steward and six Tenants and that must be intended to be done all at one time for the words of a Custom are to be performed if it may be but in the principal case the Devise is laid to be at one time and the Surrender at another time and so it is not in pursuance of the Custom But to that it was not answered But then it was said Admit that the Custom to devise and the Devise were not good yet the Action did not lie against the Defendant because that the Husband was admitted and his Entry into the Land was countenanced by a lawful Ceremony and also he was Tenant in Common with the other Husband by such Entry It was adjourned CXXIII Rosse's Case Mich. 26 Eliz. In the Kings Bench. IN Trespass brought by Rosse for breaking of his Close and beating of his Servant and carrying away of his Goods Post 94. Vpon Not guilty pleaded the Iury found this special matter scil That Sir Thomas Bromley Chancellor of England was seised of the Land where c. and leased the same to the Plaintiff and one A. which A. assigned his moyety to Cavendish by whose Commandment the Defendant entred It was moved That that Tenancy in Common betwixt the Plaintiff and him in whose right the Defendant justified could not be given in Evidence and so it could not be found by Verdict but it ought to have been pleaded at the beginning But the whole Court were clear of another Opinion and that the same might be given in Evidence well enough It was further moved against the Verdict That the same did not extend to all the points in the Declaration but only to the breaking of the Close without enquiry of the battery c. And for that cause it was clearly holden by the Court That the Verdict was void And a Venire facias de novo was awarded CXXIV Absolon and Andertons Case Mich. 25 26 Eliz. Rot. 479. In the Kings
That the Defendant should answer over CXXXVI Hering and Badlock's Case Trin. 26 Eliz. In the Kings Bench. 2 Len. 80. IN a Replevin the Defendant avowed for Damage-feasant and shewed That the Lady Jermingham was seised of such a Mannor whereof the place where c. and leased the same to the Defendant for years The Plaintiff said That long time before King Henry 8th was seised of the said Mannor and that the place where c. is parcel of the said Mannor Demised and Demiseable by Copy c. and that the said King by such a one his Steward demised and granted the said parcel to the Ancestor of the Plaintiff whose Heir he is by Copy in Fee c. And upon that there was a Demurrer because by this Bar to the Avowry the Lease set forth in the Avowry is not answered for the Plaintiff in Bar to the Avowry ought to have concluded and so was he seised by the Custom until the Avowant praetextu of the said Term for years entred c. And so it was adjudged CXXXVII Rosse's Case Mich. 26 Eliz. In the Kings Bench. Ante 83. IN Trespass brought by Rosse for breaking of his Close and beating of his Servant and carrying away of his Goods Vpon Not guilty pleaded the Iury found this special matter scil That Sir Thomas Bromley Chancellor of England was seised of the Land where c. and leased the same to the Plaintiff and one A. which A. assigned his moyety to Cavendish by whose Commandment the Defendant entred It was moved That that Tenancy in Common betwixt the Plaintiff and him in whose right the Defendant justifies could not be given in Evidence and so it could not be found by Verdict but it ought to have been pleaded at the beginning But the whole Court were clear of another Opinion and that the same might be given in Evidence well enough It was further moved against the Verdict That the same did not extend to all the points in the Declaration but only to the breaking of the Close without enquiry of the battery c. And for that cause it was clearly holden by the Court That the Verdict was void And a Venire facias de novo was awarded CXXXVIII Gurney and Saers Case Trin. 26 Eliz. In the Kings Bench. AN Ejectione firmae was brought by Gurney against Saer who pleaded That Verney was seised and leased the same to Baker for 21 years 8 Eliz. Baker 14 Eliz. assigned his Interest to Rolls who 15 Eliz. leased the same to Topp for 10 years and afterwards Rolls granted the residue of his Term to A. Verney 16 Eliz. leased the same Land to Stephen Gurney for 21 years to begin after the determination surrender or forfeiture of the first Lease rendring Rent with Clause of Re-entry And afterwards Verney granted over the Reversion in Fee to Hampden To which Grant A. and Topp attorned Topp leased to B. at Will A. and Topp surrendred B. held himself in by force of the Tenancy at Will And the said Surrender was made privily and secretly without the notice of the said Stephen Gurney The Rent reserved upon the Lease made to Stephen Gurney is demanded as now begun by the said Surrender Hampden entred as for the Condition broken for the non-payment of the said Rent And the Lease made to the said Stephen Gurney was pleaded Quod praedictus Johannes Verney per Indenturam suam sigillo ipsius Stephani Gurney sigillat demisit c. And that was holden a material Exception For here upon the matter doth not appear any Lease made by Verney For here upon the pleading it appeareth That Verney had accepted a Deed of Gurney purporting a Demise by Verney to Gurney which Gurney had sealed but there did not appear any such Deed sealed by Verney and therefore no Lease ut supra And although a Condition may be pleaded by Indenture sealed with the seal of the other party yet a Conveyance cannot be pleaded by Deed as it is here unless sealed with the seal of the party Agent scil the Feoffor Grantor Lessor And for that cause Iudgment was given for the Plaintiff Another Exception was taken because that after the Grant of the Reversion by Verney to Hampden the surrender of A. and Topp is pleaded whereas A. ought not to surrender for his Estate was not a Reversion for years but a Lease in Reversion and a Lease for years to begin at a day to come which could not be surrendred See 4 H. 7. 10. But if A. had granted his Interest by way of Reversion where Attornment had been as one Releaseth to him the Reversion for years it is good contrary to him who hath a Lease in Reversion But as to that it was said by the Court That this surrender by A. was good enough for in as much as the Interest which A. had at the time of the surrender was in Rolls a Reversion after his Grant to Topp and there it remained and continued in its nature as to that point notwithstanding that by the Grant it passed in another manner than as a Reversion Another Exception was taken because that in the pleading of the Surrender it is not alledged That at the time of the Surrender Hampden was seised of the Reversion 7 E. 3. 3. He who claims by Cestuy que use ought to alledge the Seisin and Continuance of Seisin to the said use at the time of the Feoffment or Grant notwithstanding that Seisin was alledged before And 10 H. 7. 28. Hewbade's Avowry he there pleaded That A. was seised of a Mannor and thereof levied a Fine to B. that C. the Tenant upon whom the Avowry was made attorned c. And Exception taken because it is not shewed in the Avowry That B. the Conusee was seised of the Mannor at the time of the Attornment And it was holden a good Exception On the other side it was said and affirmed by the Court That in all Cases where an Inheritance is once alledged in a Man the Law shall presume the Continuance of it there until the contrary be shewed See 1 Eliz. the Case between Wrotesley and Adams Plow Com. 193. And 15 Eliz. between Smith and Stapleton Plow 431. Which Wray and Gawdy Iustices granted Ayliff Iustice to the contrary Another point was moved If upon this secret Surrender notice ought to have been given to Gurney who had an Interest for years to begin upon the said Surrender For some conceived That Gurney without notice given him of the said Surrender should not be prejudiced by the Condition aforesaid And of that Opinion clearly was Wray Chief Iustice Note In this Case That Saer the Defendant presently after the Iudgment entred cast in a Writ of Error into the Court and assigned an Error in fact scil That Gurney the Plaintiff in the first Action within age appeared by Attorny whereas he ought by Gardein or Prochein Amy. And it was the Opinion of the Iustices upon the first Motion
John the Father in three parts to be divided And afterwards the Father by his Will devised the Lands holden in Socage unto his said Wife for life with divers Remainders over It was the Opinion of the Court in this Case that the Devise was utterly void by the Statute CLV Brett and Peagrims Case Pasch 26 Eliz. IN an Action upon the Case the Plaintiff declared that whereas he himself and the Defendant submitted themselves to the Award of A.B. and C.D. and whereas the said Arbitrators upon the hearing of the Causes between them did intend and were resolved amongst other matters of their Award to award that two Obligations by which the Plaintiff was severally bounden to the Defendant for the payment of certain sums of Mony to the Defendant should be delivered by the Defendant to the Plaintiff to be cancelled The Defendant promised in Consideration that that Article of the delivery of the said two Obligations should be left out of the Award that he himself would gratis deliver them to the Plaintiff without any Coertion or direction of the Award and further declared that the said Article ad specialem instantiam ipsius Querentis was left out by the said Arbitrators out of their Award and notwithstanding that that the Defendant had not redelivered ut supra c. but had put the same in suit against the Plaintiff In this Case upon the matter ut supra c. it was adjudged for the Plaintiff CLVI Nich. Lee's Case Pasch 26. Eliz. In the Kings Bench. 1 Cro. 26. 1 Len. 285. 1 Inst 113. Dyer 177. 219. a. 2 Len. 220. NIch. Lee by his Will devised his Land to W. his second Son And if he do depart this World not having Issue then I Will my Sons-in-Law shall sell my Land. The Devisor at the time of the Devise having six Sons-in-Law died W. had Issue John and died John died without Issue one of the Sons-in-Law of the Devisor died the five surviving Sons-in-Law sold the Land. 1. It was clearly agreed by the whole Court that although the words of the Will be ut supra If W. my Son depart this World not having Issue c. And that W. hath Issue which dieth without Issue there although it cannot be said Literally that William did depart this World not having Issue yet the intent of the Devisor is not to be restrained to the Letter but Construction shall be made that whensoever W. dieth in Law upon the matter without Issue the same Land shall be subject to sale according to the Authority committed by the Devisor to his Sons-in-Law And now upon the matter W. is dead without Issue As in a Formedon in the Reverter or Remainder although the Donee in tail hath Issue yet if afterwards the Estate tail be spent the Writ shall suppose that the Donee died without Issue a fortiori in the case of a Devise such Construction shall be made As to the other point concerning the sale of the Land Wray demanded if the Sons-in-Law were named in the Will The Clerks answered they were not See 30 H. 8. Br. Devise 31 and 39 Ass 17. Fitz. title Executors 117. Such a sale is good in case of Executors See also 23 Eliz. Dyer 371. And see 4 and 5 Mar. Dyer Land devised in tail and if the Devisee shall die without Issue that then the Land shall be sold pro optimo valore by his Executors una cum assensu of A. if A. dieth before sale the power of the Executors is determined And afterwards it was clearly resolved by the whole Court that the sale by the manner aforesaid was good and Iudgment given accordingly CLVII Rag and Bowley's Case Trin. 26 Eliz. In the Kings Bench. ERror was brought upon a Fine and the Error was assigned in the Proclamations Whereupon issued a Certiorari to the Custos Brevium who certified the Proclamations by which Certificate it appeared that two of the said Proclamations were made in one day upon which the Defendant prayed another Scire facias to the Chirographer in whose Office it appeared that all the Proclamations were well and duly made It was the Opinion of Wray Chief Iustice in this Case that the Defendant ought to have his preyer for the Chirographer maketh the Proclamations and he is the principal Officer as to them And the Custos Brevium hath but the abstract of the Proclamations and we may in discretion amend them upon the matter appearing But the other Iustices seemed to be of a contrary Opinion for that the Proclamations being once certified by the Custos Brevium who is the principal Officer we ought not afterwards to resort to the Chirographer who is the inferior Officer And afterwards the Clerks of the Common Pleas were examined of the matter aforesaid by the Iustices of the Kings Bench and they answered according to that which was said by Wray Chief Iustice Wherefore it was awarded by the Court that a new Certiorari be directed to the Chirographer who Certified the Proclamations to be well and duly made And thereupon the Court awarded that the Proclamations in the Office of the Custos Brevium should be amended according to the Proclamations in the Custody and the Office of the Chirographer Note In the same Case before the Writ brought a stranger had brought a Writ of Error against the same Defendant upon the same Fine upon which the transcript of the Fine and Proclamations are removed in Banco and after the Plaintiff is Non-suit Now another who hath Cause may have a Writ of Error quod coram vobis residet CLVIII Taverner and Cromwell's Case Trin. 26 Eliz. In the Kings Bench. UPon an Evidence unto a Iury 3 Cro. 353. containing difficulty and matter in Law it was found viz. that the Bishop of Norwich 10 H. 8. was seised of the Mannor of Northelman in the right of his Bishoprick and at his Court holden within the same Mannor granted parcel of the Demesnes of the said Mannor to one Taverner and his Heirs where of the said Land in truth there was not any Demise by Copy before And so the said Land continued in Copy until 23 H. 8. at which time Taverner committed a forfeiture which being presented the Bishop seised the Land as forfeited and granted the same again by Copy to Taverner in Fee And so from thence it continued in Copy until 8 Eliz. which Interval between 23 H. 8. and 8 Eliz. amounted to 47 years It was the Opinion of the whole Court in this Case that the Continuance for 50 years is requisite to fasten a Customary Condition upon the Land against the Lord. It was also agreed by the Court that although the Original Commencement and that Customary Interest did commence 10 H. 8. ut supra from which time unto 8 Eliz. 60 years passed yet the seisure for a forfeiture which happened 23 H. 8. interrupted utterly the Continuance from the time which might by the Law have perfected the Customary Interest So
created by this Will but the Feesimple setled in them when they came at their lawful age and had Issue so as the residue of the Devise was void and Iudgment was given accordingly CLXVI Griffith and Agard's Case Mich. 27 Eliz. In the Common Pleas. IN Disceit by Griffith against Agard and his Wife 1 Len. 290. For that a Fine was levied of a Messuage being Ancient Demesne by which it became Frank-Fee and the Fine was levied in the life of A. Griffith Grandfather of the Plaintiff Exception was taken to the Writ because it is brought by the Plaintiff as Cosen and Heir of A. G. his Grandfather And in the beginning of the Writ the words are Si Henricus Griffith fecerit te securum without saying Cousen and heir of A. G. fecerit te securum But the Exception was not allowed For afterwards in the Writ these words are Cujus haeres ipse est See the Register 238. that it is sufficient if there be in the body of the Writ these words Cujus haeres ipse est Another Exception was taken to the Declaration in that it is alledged that the Lands were De antiquo Dominico Dominae Reginae Angliae wereas it ought to have been De antiquo Dominico Dominae Coronae suae c. The Opinion of the Court was That it was good both ways See Book Entries 100. antiquo Dominco Coronae 58. de antiquo Dominico Domini Regis CLXVII Bashpool's Case Mich. 27 Eliz. In the Kings Bench. 2 Len. 101. Stiles Rep. 148. THe Case was The Father was seised of Lands in Fee and bound himself in an Obligation and devised his Lands unto his Wife until his Son should come to the age of 21 years the Remainder to his Son in Fee and died and no other Land descended or came to the Son from the Father It was moved by Godfrey That the Heir in this case might elect to waive the Devise and to take the Land by Descent See 9 E. 4. 18. by Needham But it was the Opinion of Gawdy and Shute Iustices That the Son should be adjudged in by Descent and so bounden with the Debt CLXVIII Branthwait's Case Mich. 27 Eliz. In the Kings Bench. DEbt brought by J. D. against Branthwait upon an obligation the Condition of which was That whereas J. F. claimed to have a Lease for years of the Mannor of D. made and granted to him by one W. D. If the said Branthwait keep without damage the Plaintiff from all claim and Interest to be challenged by the said J. F. de tempore in tempus during the years c. and also deliver the said Lease to the Plantiff that then c. The Defendant pleaded That the said J. F. had not any such Lease and that after the making of the said Obligation untill the Action brought the Plaintiff was not damnified ratione dimissionis praedictae Exception was taken to the same because where the words of the Condition are Keep without damage the Plaintiff from all Claim and Interest And he hath pleaded That the Plaintiff was not damnified ratione dimissionis c. But the Exception was disallowed by the Court For if he were not damnified ratione dimissionis then he was not damnified by reason of any Claim or Interest Another Exception was taken Because he could not now say there was no such Lease For it is recited in the Obligation That J. F. claimed to have a Lease and therefore by this recital he is estopped c. And see where a Recital is an Estoppel 8 R. 2. Fitz. 2 Len. 11. tit Estoppel 283. 39 E. 3. 3. Fitz. Estoppel 112. 46 E. 3. 12. It was holden by the Court That it was a good Estoppel And afterwards Iudgment was given for the Plaintiff CLXIX Mich. 27 Eliz. In the Kings Bench. DEbt upon an Obligation The words of the Obligation were I am content to give to W. 10 l. at Michaelmas and 10 l. at our Lady day It was holden by the Court That it was a good Obligation And it did amount to as much as I promise to pay c. It was also holden by the Court That an Action of Covenant lay upon it as well as an Action of Debt at the Election of the Plantiff And it was holden That although the Action is for 40 l. and the Declaration is 20 l. and 20 l. at two several days yet it is good enough and the Declaration is well pursuant to it And afterwards Iudgment was given for the Plaintiff CLXX The Queen and Kettell's Case Trin. 27 Eliz. In the Common Pleas. THe Queen brought a Writ de Valore Maritagii against Kettell and Counted of a Tenure in Chief The Defendant pleaded That pendant the Writ the Queen had granted to one Edmund Kettel Custodiam Maritagium of the said Defendant with whom he had Compounded It was holden by the whole Court to be no Plea for the Letters Patents were void because the Queen was deceived in her Grant for it appeareth by the Count that the Defendant before the Grant of the Queen was of full age And by the Letters Patents the Queen intended that he was within age and by the same granted Custodiam c. CLXXI. Mich. 27 Eliz. In the Common Pleas. A. Seised of Land by his Will Devised 1 Len. 31. That his Executors should sell the Lands and died the Executors levied a Fine thereof to one F. taking Mony for it of F. The Question was If in title made by the Conusee to the said Lands by the Fine It be a good Plea against the same to say Quod partes Finis nihil habuerunt Anderson conceived That it was But by Windham and Periam upon Not guilty the Conusee may help himself by giving in Evidence the special matter in which Case the Conusee shall be adjudged in not by the Fine but by the Devise And Windham said That if A. Devise That his Executors shall sell a Reversion of certain Lands of â—hich he dieth seised and they sell the same without Deed the same is well enough for the Vendee is in by the Devise 1 Iust 113. a. and not by the Conveyance of the Executors Quod vide 17 H. 6. 23. And by Periam The Conusee may help himself in pleading As he who is in by the Feoffment or Grant of Cestuy que use by the Statute of 1 R. 3. CLXXII Lee and Loveday's Case Trin. 27 Eliz. In the Common Pleas. TEnant in tail leased for 60 years and afterwards levied a Fine to Lee and Loveday sur Conusans de Droit come ceo c. and their Heirs in Fee And afterwards the Lord of the Mannor of whom the Land was holden brought a Writ of Disceit and upon that a Scire facias against the Conusees supposing the Land to be Ancient Demesne The Defendants made default by which the Fine was annulled and now the Issue in tail entred upon the Lessee for years and he brought an Ejectione firme
And it was found that the Land was Frank-Fee And the sole Question was If by the Reversal of the Fine by the Writ of Disceit without suing a Scire facias against the Ter-Tenant should bind him Atkinson It shall not bind the Lessee for years For a Fine may bind in part and in part not as bind one of the Conusees and not the other As. 7 H. 4. 11. a Fine levied of Lands part Ancient Demesne and part at the Common-Law and by a Writ of Disceit the Fine was reversed in part scil as to the Land in Ancient Demesne and stood in force for the Residue See 8 H. 4. 136. And there by the Award of the Court issued a Scire facias against the Ter-Tenant And the Iustices would not admit of the Fine without Certificate that the Land is Ancient Demesne notwithstanding that the Defendant had confessed it But as to those which were parties to the Fine the Fine was become void between the parties and he who had the Land before might enter See 8 E. 4. 6. And it would be a great inconvenience if no Scire facias or other Process should be awarded against the Ter-Tenant For he should be dispossessed and dis-enherited without privity or notice of it Whereas upon a Scire facias he might plead matter of discharge in bar of the Writ of Disceit Release c. which see Fitzh Na. Br. 98. and so although that the Fine be reversed yet he may retain the Land. And he resembled the same to the Case of 2 H. 4. 16 17. In a Contra formam Collationis against an Abbot A Scire facias shall issue forth against the Feoffee and by the same reason here in this Case And for the principal matter he conceived That the Fine should be awarded between the parties but not against the Lessee Kingsmill conceived That a Scire facias brought against the parties only was good enough For they were parties to the Disceit and not the Ter-Tenants c. it was Adâ—â—rned CLXXIII Trin. 27 Eliz. In the Kings Bench. ERror was brought upon a Iudgment in a Quid juris clamat It was assigned for Error That the Tenant appeared by Attorny which Act he ought not to do in his own proper person if it be not in case of necessity where in such case an Attorny may be received by the King 's Writ and plead matter in bar of the Attornment As if he claim Fee c. or other peremptory matter after which Plea pleaded he may make an Attorny 48 E. 3. 24. 7 H. 4. 69. 21 E. 3. 48. 1 H. 7. 27. Another Error was assigned Because it is not shewed in the Quid juris clamat what estate the Tenant hath Another matter was If the Grantee of the estate of Tenant in tail after possibility of Issue extinct should be driven to Attorn And conceived He should not Because the priviledge passeth with the Grant. See 43 E. 3. 1. Tenant in tail after possibility of Issue extinct Post 241. shall not be driven to Attorn 46 E. 3. 13. 27. therefore neither his Grantee Williams contrary As to the appearance of the Tenant by Attorny because the same is admitted by the Court and the Plaintiff the same is not Error Which see 1 H. 7. 27. by Brian and Conisby 32 H. 6. 22. acc And he conceived That the Grantee should be driven to Attorn For no other person can have the estate of the Tenant in tail after possibility of Issue extinct but the party himself therefore not the priviledge And although he himself be dispunishable of Waste yet his Grantee shall not have such priviledge As if Tenant in Dower or by the Curtesie grant over their estates the Heirs shall have an Action of Waste against the Grantees for Waste done by the Grantees But if the Heir granteth over the Reversion then Waste shall be brought against the Grantees See Fitzh Na. Br. 57. And if two Coparceners be and one taketh Husband and dieth the Husband being Tenant by the Courtesie A Writ of Partitione facienda lieth against him but if he granteth over his estate no Writ of Partition lyeth against the Grantee 27 H. 6. Statham Aid Tenant in tail after possibility c. shall not have Aid but his Grantee shall Clark conceived That the Grantee should not be driven to Attorn If the Tenant in tail grant all his estate the Grantee is dispunishable of Waste So if the Grantee grant it over his Grantee is also dispunishable It was Adjourned CLXXIV Trin. 27 Eliz. In the Kings Bench. Hob. Rep. 66. IN Action of Trespass against J.D. for breaking of his Close c. The Defendant pleaded That the Trespass whereof c. was done by the Defendant and one J.S. against which J.S. the Plaintiff at another time had brought an Action of Trespass and Recovered c. and had Execution of the Damages c. Plowden said It was a good Bar for that all is but one Trespass and satisfaction by one of the Trespassors is satisfaction for the other And if the Plaintiff had Released to the other Trespassors the Defendant if he had it in his hand might well plead it Wray conceived it a good Bar For it is but one Trespass and one wrong although in respect of the several persons of the Trespassors there are several Corporeal Acts. Atkinson conceived That the Bar was not good and it is not like the Case of Release for that taketh away the whole Trespass whosoever doth it And this Action may be sued joyntly or severally against the Trespassors and when the joynt suit is Released the several suit is Released Clench If an Action of Trespass be brought against two and they plead several Pleas and afterwards one of them is found guilty by a several Iury That Iury shall assess all the Damages and if the other be afterwards found guilty he shall be subject to the said Damages although he was not party to the said Iury and by the same Reason that he shall be charged with the same Damages by the same Reason he shall have advantage of the satisfaction of them made by his Companion See Br. Trespass 2. CLXXV Hitchcock and Thurland's Case Trin. 27 Eliz. In the Kings Bench. IN an Action upon the Statute brought for taking of Lands to Farm by a Spiritual person 21 H. 8. It was holden That if any such Lease be made at this day to any Spiritual person such a Lease is not void But such a Lease extends to such Leases made before the Feast of St. Michael mentioned in the said Act and not aliened before the said Feast c. And so it was said It was lately adjudged in one Underwood's Case CLXXVI Cutter and Dixwell's Case Trin. 27 Eliz. In the Kings Bench. AN Action upon the Case brought by Cutter against Dixwell for that the said Defendant had exhibited a Bill to the Iustices of Peace against the Plaintiff containing That the Plaintiff is an Enemy
to all Quietness seeking all means to disquiet his Neighbors and hath used himself as a Lawless person and having Process to serve upon one in the Parish viz. the Parson did keep the Process and would not serve it but on the Sabbath day in the time of Divine Service not having regard to her Majesties Laws or the Quiet of his Neighbours Vpon which Bill the Iustices to whom it was exhibited awarded Process against the Plaintiff to find Sureties for his good behaviour It was the Opinion of the Iustices That upon this matter an Action would not lie CLXXVII Mason's Case Trin. 26 Eliz. In the Kings Bench. MAson Leased certain Lands to one R. for years and afterwards leased the same Lands to one Tinter for years Tinter Covenanted with the Defendant That if the said R. should sue the said Mason by reason of the later Lease that then he would discharge or keep harmless without damage the said Mason and also would pay to him all the Charges which he should sustain by reason of any suit to be brought against the said R. in respect of the said former Lease And Mason by the same Indenture Covenanted with Tinter That the said Land demised should continue to the said Tinter discharged of former Charges Bargains and Incumbrances And now upon the second Covenant Tinter brought an Action of Covenant and shewed That the said R. had sued him in an Action of Ejectione Firme upon the said first Lease and had recovered against him c. And Mason pleaded in Bar the said second Covenant intending that by that later Covenant the Plaintiff had notice of the said former Lease made unto R. so as the first Lease shall be excepted out of the Covenants of former Grants for otherwise there should be circuity of Action But the Opinion of the whole Court was to the contrary For the Covenant of Mason shall go to the discharge of the Land but the Covenant of Tinter only to the possession CLXXVIII Knight and Beeches Case Pasch 27 Eliz. Rott 1127. In the Common Pleas. 1 And. 173. Coke 5. Rep. 55. 1 Len. 12. 2 Len. 134. WIlliam Knight brought Ejectione Firme against William Beech. The Case was That the Prior of St. Johns of Jerusalem 29. H. 8. with the assent of his Covent leased by Indenture divers Houses in Clarken-well in the County of Middlesex for fifty years to one Cordel rendring Rent 5 l. 10 s. and 11 d. at four Feasts of the year usual in the City of London viz. for such a Messuage called The High-House 14 s. for another House 3 s. 11 d. for another House xx s. c. Et si contingat dictum annualem redditum 5 l. 10 s. 11 d. a retro fore in parte vel in toto ultra aut post aliquem terminum solutionis in quo solvi deberet per spatium trium mensium c. quod tunc ad omnia tempora deinceps ad libitum c. liceret dicto Priori Successoribus suis omni tali personae personis quam vel quas dictus Prior Successores sui nominarent appunctuarent sine scripto in omnia dicta tenementa totaliter re-entrare c. And afterwards 32 H. 8. the said Hospital of St. Johns was dissolved and the possessions of it granted to the said King and afterwards the said King 36 H. 8. gave the said House upon which the said Rent of 20 s. was reserved to one Audley c. in Fee And afterwards the now Queen being seised of the residue a Commission issued out of the Exchequer bearing Date 8 Maii 23 Eliz. Ad inquirendum Utrum the Defendant to whom the Interest of the said term did appertain perimple visset performasset omnes Provisiones fact reservat in super praedict Indenturam necne Office was found before the Grant and after 25 August following the said Queen by her Letters Patents gave the said House called The High-House to Fortescue the Lessor of the Plaintiff and afterwards Tres Mich. the Commission was retorned by which it was found all as aforesaid Et quod Termini Festi Solutionis in London are Michaelmas Christmas Annunciation and Mid-summer and that at the Feast of Michaelmas such Rent was behind for the space of three Months c. It was argued in this Case by Gawdy Serjeant on the part of the Plaintiff That here are several Rents for the entire Sum by the viz. is distributed into several Portions which make several Rents and to that purpose he cited Winter's Case 14 Eliz. Dyer 308. A Lease for years is made of the Mannors of A.B. and C. rendring for the Mannor of A. xx s. and for the Mannor of B. x s. and for the Mannor of D. x s. with a Condition for the Non-payment of the said Rents or any of them or any part or parcel of them within one Month c. then a Re-entry Here are several Rents And he conceived That a Condition in the Case of the King might be apportioned For a Rent-charge and a Condition are in the King in better Condition than in a Subject for the thing may distrain for a Rent-charge in all the Lands of him who is seised of the Land out of which such a Rent is issuing and if a Rent-seck be due to the King he may distrain for the same and the King shall never demand his Rent which he hath reserved with Clause of Re-entry and it appeareth in the Register That if before the Statute of Westm 3. the King purchaseth parcel of the Land holden of him the Rent shall be apportioned which was not in the Case of a Common person and there are in the Exchequer divers Presidents to that effect scil If A. be bounden in a Recognizance to B. and afterwards enfeoffeth the King of part of his Land and C. of the other part If B. be afterwards attainted of Treason so as the said Recognizance accrueth to the King that now notwithstanding that he hath part of the Land lyable to the Recognizance he shall have Execution of the residue And see F. N. B. 266. If after the Recognizance acknowledged the Conusor enfeoffeth of certain parcels of his Lands several persons and of the Residue enfeoffeth the King that Land which is assured to the King is discharged of the Execution but the residue shall be charged So that the possession of the King doth alter the Nature of the Rent Condition and Execution Fenner Serjant Contrary And he said That this Grant before Office retorned was not good for without Office the King cannot enter multo minus his Patentee and that the King by the Grant hath interrupted the Relation of the Office As if a Man by Indenture bargaineth and selleth his Lands and afterwards makes Livery to the Bargainee and afterwards the Deed is enrolled Now the party shall not be said to be in by the Bargain and Sale but by the Livery for the Livery hath interrupted the
force of the first assurance by way of Bargain and the Relation is utterly gone So in our Case The Grant of the Queen mean between the Award of the Commission and the Retorn of it hath destroyed the force and effect of the Commission so as no appearance shall be had of it And he agreed That here are several Rents but the Condition is entire and admit that a Condition may be apportioned in some Cases yet in some Cases it cannot And the Statute of 32 H. 8. gives the Condition and the Reversion to which it is annexed to the King in such sort as it was in the Prior But the Condition in the Prior was not capable of Apportionment and therefore no more it shall be in the Case of the King. As where a Recognizance is acknowledged whicâ— cometh to the King by the Attainder of the Conusee Now if the King will sue Execution upon it he shall not have the whole Land of the Conusor in Execution but only the moyety by Elegit c. This Case afterward Trin. 28 Eliz. for Difficulty was adjourned into the Exchequer-Chamber and there argued before all the Iustices and Barons of the Exchequer And Shuttleworth Serjant argued for the Plaintiff And first he said Here are several Rents and so several Conditions especially when all the things demised are of such a Nature that they may yield a Distress but if any of the things demised cannot yield Distress then it shall be one entire Rent and shall issue out of the Residue c. Which see 17 Ass 10. An Assise was brought of 20 s. Rent and the said Rent was reserved upon a Lease for life made of 100 Acres of Lands and 15 Acres of Wood scil for the Land 10 s. and for the Woods 10 s. And by the Assise it was found the Disseisin in the Wood but not in the Land. Wherefore it was awarded That the Plaintiff should recover seisin of the 10 s. and for the residue that he should take nothing And although these words reddendo inde Trench unto all the things demised entirely yet this word viz. is a distributive and makes an Apportionment And the viz. is not contrary to the premisses scil to the reddendo inde As if I enfeoffe A. and B. of an Acre of Land Habendum the one moyety thereof to A. in Fee and the other moyety to B. in Fee this is good for it well stands with the premisses But if I enfeoffe A. and B. of two Acres of Lands Habendum the one Acre to A. and the other to B. the same Habendum is void because contrary to the premisses for each of them is excluded out of one Acre which was given to him in the premisses And in our Case If the Rent set forth in the Viz. had been greater or less than that which is reserved upon the Reddendo then the Viz. should be void for the contrariety and the Reddendo stand Walmesley contrary And that here is one entire Rent Which see to be so by the close of the Condition Si Redditus praedict ' aut aliqua inde parcella c. And the Lessor may distrain in any part of the Land demised for the whole Rent notwithstanding the Viz. And it was moved by Shuttleworth That admit the Rent and Condition be entire Yet now when the King grants the Reversion of one of the things demised in Fee to a stranger the Condition remains and not determined by the destruction of the Reversion as in the case of a Subject For the King hath divers Prerogatives by which he is exempted and protected from such Mischiefs and Inconveniences which happen to Subjects by their own Acts and their Laches and Folly which shall not be imputed to the King And the reason of Extinguishment of a Condition in such case in the case of a Common person is his own Folly that he will distrahere his Reversion And Folly shall never be imputed to the King And as the Case is here the King is not bound to take notice of a Condition made by a Common â—erson For it is not matter of Record and by this Grant of the King the Rent doth not pass for the Grant is only of the Reversion without any mention of the Rent And the King hath divers Prerogatives in a Condition As in the creating of a Condition 35 H. 6. 38. The Abbot of Sion's Case Ad effectum is a good Condition in the Case of the King by Prison And where the King grants Lands in Fee to one upon Condition That the Grantee shall not alien the same is a good condition So for a Rent-Seck the King may distrain And the King may reserve a Rent and a Condition to a stranger and if he doth reserve a Rent and a Condition to himself he may grant the same over to a Subject 2 H. 7. 8. And the Condition in the case of a Common person may be apportioned As if Lessee of two Acres upon Condition alien one of them in Fee and the Lessor entreth for the forfeiture or recovereth part in an Action of Waste c. but of a surrender it is otherwise Walmesley contrary The Condition is gone For a Condition in the hands of the King is of the same Nature as in the case of a common person impatient of any Division Partition or Apportionment As if the King hath a Rent out of 3 Acres of Land and afterwards purchaseth one of them the Rent is utterly gone and shall not be apportioned as well as in the Case of a common person So of a Common And as this Case is If the Condition doth remain then upon the breach of it the King shall enter into the whole for the words of the Condition are Wholly to re-enter and so he should defeat his own grant And he cited a Case adjudged at the Assizes at York The King gave Land in Fee-Farm rendring Rent with Clause of re-entry The King granteth the Rent over to a stranger And after the Rent is behind The King cannot re-enter nor the Grantee It was also moved If the Iurors of Middlesex might enquire of the usual Feast days in London Shuttleworth That they might do so See 5 H. 5. 23. Where a Commission issued out to enquire in the County of Surrey of Escheats words c. who found that A. held of the King in Chief and took to Wife one E. Cosen of A. within the Degrees they then knowing of it and had Issue betwixt them and afterwards they were Divorced in the County of Kent c. And Exception was taken to that Office Because the Enquest of Surry had found a Divorce in the County of Kent Another matter was Because the Iurors have found the breach of the Condition And before the Iurors had put their Hands and Seals to the Inquisition the Queen granted part of the things demised in his hands to Fortescue After which Grant the Inquisition was sealed and Retorned into the Exchequer If
Lease for years by the Countess of Oxford to the Queen One Error was assigned because whereas the Issue was joyned upon the Intrusion and the taking of the profits and so two matters put in Issue and the Iury have found Payn guilty of the Intrusion but have said nothing of the taking of the profits and so the Verdict doth not meet fully with the Issue The great matter of the Case was upon this Point The Information is That the Assignment of the Queen was 16 Maii the Intrusion 17 Maii the Inrollment of the Deed of Assignment 18 Maii And so it appeared upon the Record that the Intrusion is supposed to be done before that the Queen had any Interest in the Land in which the Intrusion is supposed for nothing was in the Queen before the Enrollment For the Queen is a Corporation of State of such Prerogative and Excellency That she cannot give or take an Interest in Land without matter of Record And this Lease is a Chattel-real and an Interest in Land. See as to the Inrollment 1 H. 7. 30. 31. 5 E. 4. 7. 7 E. 4. 16. But I agree That if Lessee for years be Outlawed the Lease shall be in the King without Office for the Outlawry it self is a sufficient Record to entitle the King unto it If the Queen makes a Lease for years of Lands rendring Rent with a Clause That if the Rent be behind that the Lease shall cease if the Rent be not paid It was agreed here in Sir Moile Finch's Case That the Lessee continuing his possession shall not be accounted an Intruder before Office thereof found but he shall be Accomptant to the Queen for the profits as Bailiff of his own wrong but here we are charged with Intrusion It hath been doubted If personal things are in the King without Office 37 H. 6. But now it is clear they are As 35 E. 3. Br. Prerogat 113. The Villein of the King purchaseth goods the property thereof is in the King without seisure and so it is of all personal Chattels because they are transitory 1 H. 7. 17. 4 H. 7. 1. 39 H. 6. 26. And here it appeareth upon the Record that this Deed of Assignment was delivered to Baron Clark 16 May at Westm and that was Ascension-day and so non dies Juridicus and so no Court there then holden and then the said Deed was not delivered in Court of Record and then not delivered to him as a Iudge but as a private person although that it was delivered to the use of the Queen But in 37 H. 6. there is some Opinion That if such a Deed be delivered in Court to one of the Barons or be put into the Kings Coffers that then it is a Record Atkins to the contrary And to the first Exception It is to be known That in every Plea where a Contempt is laid to the charge of the Defendant he ought first to excuse his Contempt And therefore here the Exordium of the Plea is Quoad venire vi armis quicquid est in Contemptu Dominae Reginae necnon de tota ulteriore transgressione Contemptu per ipsos supposit Quod ipse in nullo est inde Culpabilis And afterwards plead over And so it is in an Action of Trespass And also upon the Statute of 8 H. 6. of Forcible Entry and here the Issue upon the Contempt doth ensue the other Issue For if the other Issue is found against the Defendant so also is this As to the other point I agree That a Corporation cannot take or speak without writing And the King being a Corporation and who only makes Corporations cannot take but by writing of as high a nature scil by Record And we have here a Record as is granted by the other side being enrolled 18 May which was delivered 16 May and being once enrolled it hath relation to the time of the delivery i. e. to 16 May And then Payn upon the whole matter was an Intrudor 17 May and an Intrudor by his Entry doth not gain any thing against the Queen and therefore the Information of the Intrusion is diversis diebus vicibus intrusit althought it be but one continued possession and therefore every Instant during his possession he is an Intrudor As to the delivery of the Deed of Assignment upon the day of the Ascension which is not dies Juridicus that is not material As 12 E. 4. 8. by Pigot If the day of Retorn of a Writ i. e. 4 to die falls upon a Sunday it is good enough although no Court can then be holden but the day following and the Plea is not discontinued And this delivery of the Deed of Assignment might be made out of Term there upon any day in the Term which is not dies Juridicus Contrary where the thing is of necessity to be done in the Term as in the Case between Fish and Brocket of Proclamations made upon a Fine For a Man may acknowledge a Recognizance or a Deed to be enrolled in the time of Vacation c. Tanfield As to the Interest the Enrollment hath relation not as to the profits for Payn cannot be Intrudor 17 May by any Relation Popham The Queens Attorny When an Information of Intrusion and taking of the profits is here exhibited the Defendant ought to justifie his Entry and if the Entry be found against him so as his Entry is an Intrusion then the illegal taking of the profits is found also And he said That the Deed acknowledged and delivered to the Baron is a Record although not enrolled be the acknowledgment thereof in Court or out of Court. If an Information upon a penal Law be exhibited to a Baron of the Exchequer out of Court and afterwards another Informer exhibits another Information upon the same Statute for the same Offence against the same person and that is exhibited in the Court before the first The first Information shall be preferred and the Defendant shall answer to that and not to the other and for exhibiting the same in Court or out of Court it is not material And the Assignment when it is enrolled hath relation unto the acknowledging of it A Reversion is granted to one for life the Remainder to the King the particular Tenant attorns to the King the Remainder is not in the King by the Attornment but if the Deed be afterwards enrolled it shall be said to be in the King from the time of the Attornment And the King shall have the benefit of all the mean profits from the time of the Attornment A Lease for years is made by the King reserving Rent with a clause That if the Rent be not paid that the Lease shall be void the Rent is not paid 10 years after an Office is found the King shall be answered all the profits from the time of default in payment of the Rent And although no Intrusion can be laid in the Information 17 May yet it shall be good for
the Plaintiff who said That the Extent by computation of time according to the value to which it was extended is not yet satisfied The Verdict hath found that the Extent continued until 22 Eliz. hut doth not say that it was then expired and ended And I conceive also that this Extent doth not evict the Interest of Sir Thomas Cotton or turn it into a possibility The extent is Quousque leventur denarii but yet a Limitation of time is in Law understood although by a Casualty such time may be abridged or extended Which see 15 H. 7. 16. by Fairfax Where a Man is bounden by Statute to pay 40 l. and the Conusee sueth Execution upon it and the Land extended is rated at 10 l. per annum now it shall be intended by a common intent that in 4 years the party may be satisfied and therefore after the 4 years the Conusor shall have a Scire facias so upon the matter it is a Lease for 4 years So 7 H. 7. 12. by Keble to the same purpose And 15 E. 4. 5. by Brian for the Law shall not intend a casualty without alledging of it for the same shall not be by imagination And therefore If the Conusor will have the Land within the Term he ought to alledge That the Conusee hath levied the duty by an extraordinary Casualty and shew it specially And so where the Conusor sueth a Scire facias and the Conusee will hold the Land over he ought expresly to surmise some extraordinary occasion wherefore he could not levy the duty upon the Land within the Term Which see by Brian 15 E. 4. 5. and 44 E. 3. The Conusee of a Statute after extent maketh a Lease for 3 years yet it may be that the duty shall be levied within one year but if it be so then a Scire facias shall issue forth against the Conusee and not against the Lessee for the Law intends that the whole estate of the Conusee is not granted but that he hath a Reversion in him but if he hath granted his whole estate then a Scire facias shall issue forth the Grantee So here although that this extent in our Case would continue by computation of time for some of the years of the Term granted to Sir Thomas Cotton yet it is intended that the extent did run out and was determined before the expiration of Sir Thomas Cotton's Term so as notwithstanding that Sir Thomas Cotton hath an Interest left in him which he may grant It will be Objected How can it be said an Estate for years when as he might hold over the years As to that such an Interest may be put off in divers Cases As 15 H. 7. A Man grants to another the third Avoidance of such a Church and dieth seised his Wife is endowed of the Church she shall have the third Avoidance and the Grantee shall have the 4th Avoidance and so per talem intervenientem occasionem the benefit shall be delayed and so here in our case And then the estate by Extent being prima facie certain so as it cannot by intendment surmount the Term of Sir Tho. Cotton as it appeareth upon the Extent the estate shall be taken to continue according to the extent of the years and then a certain Interest doth remain in Sir Thomas Cotton which he may grant over which is not a possibility but rather a Reversion So and to such purpose is the Case of 7 H. 5. 3 4. If the eldest Son entreth after the death of his Father and afterwards his Mother recovereth Dower that shall take away the possessio fratris but if the Son maketh a Lease for life and the Wife recovereth Dower against the Lessee there shall be possessio fratris for the Reversion doth remain in the Lessor notwithstanding the eviction of the estate for life And 7 H. 6. 2. there it is holden by Goddard and Strange That where the Term of the Wife was extended upon the Statute of the Husband who died the Wife shall have the residue of the Term and avoid the extent as to her Term which proves that all the Term is not drawn to the Conusee by the Extent but that an Interest doth remain in the Lessee notwithstanding that And see by Seton 29 Ass 64. If Lessee for life Leaseth to him in the Reversion for life yet he hath a Reversion in him And 31 Ass 6. A. is bound by Statute to B. and his Land extended by force of it C. recovers against B. in Debt and the Land extended by him upon the Statute 1 Roll. 887. is now extented by Elegit A. grants his Estate to the Conusee it is no surrender which proves that B. hath an Interest And so in our Case an Interest doth remain in Sir Thomas Cotton notwithstanding the Extent A. makes a Lease for years to begin at a day to come and before the day A. is disseised The Lessee notwithstanding this Disseisin may grant his Interest for he never was in possession and therefore it cannot be turned into a Right As to the second point If Robert Cotton may enter within the time of the Extent without a Scire facias and that rests upon this point If this Lease shall be subject to the Extent I conceive clearly that it shall not It hath been said That our Lease is not good But I conceive it without question that our Lease is good enough For it is made by the Husband and Wife and the Wife after the death of her Husband by Acceptance of the Rent might affirm the Lease But the Statute is the act of the Husband alone therefore the Conusee of the Fine shall not avoid the Lease for it is but voidable So the King grants Lands durante beneplacito and afterwards grants the Reversion over the Patentee shall not avoid the Estate But if this Lease had been made by the Husband only it had been void and then the Conusee of the Fine should avoid it as it was lately adjudged in Harvy and Thomas 's Case And I conceive That if Tenant in tail acknowledgeth a Statute and afterwards makes a Lease according to the Statute of 32 H. 8. and dieth the Lessee shall not hold the Land subject to the Statute for then the Rent should not be paid to the Issue in tail during the Statute which is against the Stat. of 32 H. 8. And see also 8 Eliz. Dyer 252. The Chaplain of a Donative Chappel Leased for 99 years which was confirmed by the Patron who was Tenant in tail of the Patronage which was appendant to a Mannor whereof he was seised in tail and afterwards he had Issue and died The Statute of Chauntries cometh after the death of the Incumbent the King shall avoid this Lease And in our Case after the Coverture the Conusee is in by the Wife and then he shall avoid the Statute extended upon it And if so then there needeth not any Scire facias as the
Issue in tail may enter upon the Conusee of a Statute acknowledged by his Father For if Execution had been sued against the Issue in tail it had been a Disseisin And see 2 R. 3. 7. That in such case the Wife or her Heirs may enter upon the Conusee And by Consequence the Conusee who is in by her c. Cook contrary I conceive that this Grant of this Lease by Sir Thomas Cotton to his Son is not good 2 Roll. 48 1 Cro. 15. 1 Inst 22. b. for it is but a possibility and no Interest I agree all the Cases which have been put before for Law but they cannot be applyed to this Case The Book in 7 H. 6. 2. is That if the Term of the Wife be extended upon the Statute of the Husband that the Wife shall have the residue after the death of the Husband but it doth not say that the Wife or her Husband may grant it during the Extent which is the matter now in Question And I conceive That Sir Thomas Cotton hath but a possibility For the Conusee upon the Extent hath but an incertain Interest And although it may be by some means reduced to a certainty in the Chancery where the Costs and Damages shall be assessed yet until it be reduced to a certainty it cannot be granted And therefore it is clear That if I have a Term for 8 years in Land and grant it unto another until he hath levied 100 l. and all his Costs of suit for it by this Grant all the Interest of the Term is in the Grantee and nothing is in me but a possibility 8 Co. Mannings Case And so it was holden in the Common Pleas by the Lord Anderson the day when he was made Chief Iustice there At which time this Case was put Lands of the yearly value of 20 l. are Leased to one until he hath levied 100 l. And the matter was What estate the Grantee hath And it was holden That if Livery be not made that he hath but an estate at Will for the profits of the Lands are incertain the one year more and the other year less And Bromley Lord Chancellor was then of the same Opinion Then if in case of a Lease it be so it shall also be so in case of an Extent and in both the Cases the whole Interest is out of the parties And 19 Eliz. the Case was in this Court That the Lessee for years devised his Term to his Executors for the payment of his Debts and Legacies and after the payment of them the residue of the years he devised to his Son The Executors enter which is an assent to the remainder he in the remainder grants his Interest And it was holden void because it was but a possibility and so incertain and although it might be reduced to a Certainty afterwards yet the same is not sufficient for it ought to be reduced to a certainty at the time of the grant And 17 Eliz. in this Court the Case was That Land was given to the Husband and Wife and to the Heirs of the Husband the Husband makes a Lease for years and dieth the Wife enters and entermarrieth with the Lessee And it was moved If the Interest of the Lessee by the entermarriage was extinct And it was holden That it was not for it was but a possibility and not an Interest quod fuit concessum per totam Curiam And if a possibility cannot be extinct then it cannot be granted And he denyed the Case put by Stephens Where a Man seised of Lands Leaseth the same for years to begin at a day to come and afterwards before the day the Lessor is disseised now during that Dissesin the Grantee cannot enter for his future Interest For the Feesimple being turned into a Right so also shall be the Interest And that is proved by Delamere's Case A Feoffment in Fee was made to the use of A. for life and afterwards to the use of C. for life and afterwards to the use of D. in Fee and afterwards A. enfeoffed a stranger who had notice of the use The same doth take away all the other uses and said Feoffee although he had notice of the use yet he shall not be seised to the first use for the estate out of which the first uses do arise is taken away and then also the uses And he said also That the Lease made to Sir Thomas Cotton is not good for it was made 11 Eliz. And it is found by Verdict That 10 Eliz. a Writ of Extent issued forth upon the Statute then was the Lands in the hands of c. during which time the Lord Mount joy and his Wife could not make the Lease aforesaid to the said Sir Thomas Cotton And as to that see 5 E. 3. Retorn of the Sheriff 99. See the Case of 3 E. 6. Dyer 67. Stringfellow's Case Then admitting the Lease to Sir Thomas Cotton yet the Lessee cannot put out the Conusee without a Scire facias for the Conusee is in by matter of Record Also here this Lease made by the Husband and Wife without any Rent reserved is utterly void and then the Conusee shall take advantage of it 9 H. 7. 24 18 E. 4. 2. And so was it ruled in the Case of Seniori puero in the case of an Enfant And see 7 Eliz. Dyer 239. Where the Provost of Wells being Parson impersonee of the Patronage of W. Leased the Tythe for 50 years rendring Rent which was confirmed by the Dean and Chapter but not by the Patron and Ordinary And afterwards by Act of Parliament the Provostry was united to the Deanery cum primo vacare contigerit The Provost died the Dean accepteth the Rent The same shall not bind the Church for the Lease is void as it is of a Parson or Prebend c. And so the Dean shall take advantage of it although not privy to it See 16 Eliz. Dyer 337. Lands given to a Parson and his Successors for to find Lights and he Leaseth the same for life The Rent is so imployed accordingly The Incumbent dieth The Successor accepteth the Rent the King grants it over The Patentee shall avoid the Lease as the Successor might have done before the Statute if he had not accepted the Rent but the acceptance before the Statute shall bind the Successor for that it was but a voidable Lease And the Case between Harvy and Thomas which hath been put on the other side serves to our purpose for there the Conusee shall avoid a Lease in Law which is void and here in the Principal Case the Lease is void for that no Rent is reserved upon it Wherefore c. It was adjourned CCVI. Beadle's Case Mich. 29 30 Eliz. In the Kings Bench. THe Case was That A. Leased to B. certain Lands for 40 l. per annum 2 Len. 115. And a stranger Covenanted with A. That B. should pay him 40 l. for the Farm and Occupation
Land as it might be Leased And so it is where the Sheriff retorns Issues c. for the Corn there growing may be of the value of 40 l. where the Land is but of the value of 10 l. CCXXV. Weshborn and Mordant's Case Mich. 29 Eliz. In the Kings Bench. 2 Len. 103. 1 Cro. 191.199 1 Len. 247. IN an Action upon the Case the Plaintiff declared That whereas he was possessed of a piece of Land containing 2 Acres called Parsonage lying adjoyning to a certain River from the 20th of May 29 Eliz. usque diem impetrationis istius Brevis c. the Defendant had the said 20th day of May estopped the said River with certain Loads of Earth and so continued estopped until the 14th of February by reason of which his Land was drowned and so he had lost the profit of it for the said time It was moved in Arrest of Iudgment That upon the Declaration it doth not appear that there is any cause of Action for the Plaintiff hath made title to the Land drowned from the 20th day so as that day is excluded and the Nusance is laid to be done the said 20th day and if so then he cannot complain of any wrong the Nusance being laid to be before any possession of the Plaintiff To which it was answered That although the stopping was made before the possession yet the Continuance of it after is a new wrong for which an Action lieth As 5 H. 7. 4. It was presented That an Abbot had not cleansed his Ditch c. by reason of which the Highway is estopped The Successor shall be put to Answer to that Indictment by reason of the Continuance of it See that continuance of a Nusance is Quasi a new Nusance 14 15 Eliz. Dyer 320. And it may be that the Plaintiff was not damnified until a long time after the 20th of May scil after the Estopping and the words of the Writ here are satisfied and true Afterwards Iudgment was given for the Plaintiff CCXXVI The Queen and Scot's Case Mich. 29 Eliz. In the Common Pleas. THe Queen brought a Quare Impedit against the Bishop of London and Scot And the Case was 1 Len. 40. A. seised of an Advowson in gross holden of the Queen in Chief aliened the same by Fine without Licence of the King The Church became void The Conusee presented the Queen without Office found brought a Quare Impedit The Question was If the Queen without Office found should present It was agreed by the whole Court That if the alienation had been by Deed only there the Queen without Office should not have the presentment For upon such alienation by matter in fait without Licence no Scire facias shall issue without Office found of the alienation But upon Alienation without Licence by matter of Record a Scire facias lieth before Office. And in the last Case the Queen shall have the Issues from the time of the Scire facias retorned but in the first Case from the time of the Office found See Stam. Prerogat see 8 E 4. 4. It was then moved That if the Queen being entituled to present ut supra pardon the Conusee all alienations without Licence and Intrusions If the Estate of the Incumbent thereby be confirmed But the Court would not argue that Point CCXXVII Sir Thomas Holland and Bonis's Case Mich. 29 Eliz. In the Common Pleas. IN a Replevin 1 Len. 183. 2 Len. 12. Owen Rep. 138 139 the Defendant made Conusans as Baily to Tho. Lord Howard and shewed That the Prioress of the late dissolved Priory of Hallywell was seised of the Mannor of Priors in the County of Hertford and granted the same by words of Dedi concessi pro certa pecuniae summa to the Lord Audley Chancellor of England and his Heirs who died thereof seised and that the said Mannor inter alia descended to Mary Daughter and Heir of the said Tho. Lord Audley who died thereof seised by force of which the said Mannor descended to the said Tho. Lord Howard c. And shewed That the Conveyance by the Prioress bore date 4. Novemb. 29 H. 8. and then enrolled in the Chancery The Plaintiff in bar of the said Conusans shewed That after the making and inrolling of the said Conveyance the said Prioress Leased the Lands to Sir Hen. Parker for 99 years and conveyed the said Lands to himself and further shewed That the said Conveyance specified in the Conusans fuit primo deliberatum 4. November 31 H. 8. without that that the said Prioress the said 4. Novemb. 29 H. 8. dedit concessit the said Mannor to the said Lord Audley Vpon which it was demurred And it was the clear Opinion of the Court That the Averment de primo deliberatum against a Deed enrolled ought not to be received For by the same reason it might be averred Nunquam deliberatum and so upon the matter Non est factum It was further Objected That a Bargain and Sale by a Corporation is not good For a Corporation cannot be seised to another's use and the nature of such a Conveyance is to take effect by way of use in the bargain and afterwards the Statute draws the possession to the use But the Court utterly rejected the said Exception as dangerous for that such were the Conveyances of the greater part of the possessions of Monasteries And it was in this Case said by Shuttleworth Serjeant That although such a Corporation could not take an Estate to another's use yet they might charge their own possessions with an use to another CCXXVIII The Queen and the Bishop of Gloucester's Case Trin. 29 Eliz. In the Kings Bench. THe Queen recovered in a Quare Impedit against the Bishop of Gloucester and one S. in which Quare Impedit the Bishop pleaded as Ordinary scil Quod ipse nihil habet nec habere clamat in Ecclesia praedict neq in Advocatione ejusdem nisi Admissionem Institutionem c. And now the Bishop and S. the Incumbent brought a Writ of Error And If this Writ of Error brought joyntly by the Bishop and the Incumbent was well brought was the Question Some held That the Bishop had not cause to bring Error for that he had disclaimed in the Church and the Patronage of it For if in a Praecipe quod reddat the Tenant disclaims he shall never have a Writ of Error 16 E. 3. 7. Fitz. Error 78. And Note That in the Writ of Error at the Bar the perclose was Ad grave damnum Episcopi whereas the Bishop could not be grieved by the said Iudgment because he had nothing nor claimed any thing in the Church c. Wray The Writ of Error had been the better if those words ad grave damnum Episcopi had been left out for the Bishop hath lost nothing And it was Objected by some If the Iudgment in this Case be reversed the usual Iudgment cannot be given scil That the Bishop shall be restored to
all which he lost c. Wray The Bishop shall joyn for Conformity of Law and for privity of Record and the Plea of the Bishop is not so strong as a Disclaymer For in case of a Disclaimer the Iudgment is That the Plaintiff shall take nothing by his Writ but in the case of the Bishop here the Iudgment is Quod querens recuperet praesentationem suam versus dictum Episcopum ad Ecclesiam praedictam See 35 H. 6. 4. Fitz. Error 35. And afterwards in the principal Case the Writ of Error was awarded good CCXXIX Williams and Linford's Case Trin. 29 Eliz. In the Kings Bench. EDward Williams brought an Action upon the Case against Linford 2 Len. 111. for slanderous words concerning the Title of the Plaintiff's Lands viz. Williams is nothing worth and do you think that the Mannor of D. is his It is but a Compact betwixt his Brother Thomas and him And declared further That at the time of the speaking of these words there was a Communication with one J.S. to give the said J.S. the said Mannor of D. for his Mannor of R. and that by reason of the said slanderous words 1 Cro. 346.787 the said J.S. durst not proceed in the said intended exchange It was Objected That upon this matter an Action upon the Case did not lie because the slanderous words were not spoken to him who should be purchasor of the Lands but unto a stranger For in the Case betwixt Smith and Johnson Johnson was in speech with one to sell his Land to him and Smith said to him who should be the purchasor of them Will you buy Johnson's Land Why it is troubled with more Charges and Incumbrances then it is worth Wray There is not any difference be the words spoken to the parties or unto a stranger for in both Cases the Title of the Plaintiff is slandered so as he cannot make sale of it It was adjudged for the Plaintiff CCXXX Mich. 29 Eliz. In the Common Pleas. A Poor Woman brought an Action of Trespass for breaking of her Close and declared of a Continuance by 6 years And upon Nihil dicit had Iudgment to recover Vpon which a Writ of Enquiry of Damages issued forth and now came the Woman and shewed to the Court That the Iury had found too little Damages scil but 40 s. whereas the Land was worth 5 l. per annum and that the Trespass had been continued for 6 years and prayed that the said Writ might not be received and that the Court would award another Writ to have a better Enquiry of the Damages But the whole Court denyed it For so there might be infinite Enquiries But some time at the request of the Defendant when excessive Damages are found or any misdemeanour is alledged in the Plaintiff in procuring or using such a Writ of Enquiry of Damages We use to relieve the Defendant with a new Writ but never the Plaintiff because it is his own Act. And by Rhodes The late Countess of Darby brough a Writ of Dower and had Iudgment to recover and she surmised That her Husband died seised and prayed a Writ of Enquiry of Damages and had it And because too small Damages were found she would have suppressed the said Writ and procured another but she could not have it And at the last she was driven to bring in the said Writ Which she did accordingly CCXXXI Lawson and Hare's Case Mich. 29 Eliz. In the Common Pleas. 2 Len. 74. IN a Replevin by Lawson against Hare of the Temple who Avowed because he himself was seised of a Hundred And that he himself and all those whose Estate he hath in the said Hundred have used to hold a Leet within the said Hundred at such a place every year And that at every time such Leet should be holden The Inhabitants within the said Precinct have used to pay to the Lord of the Leet 16 d. for the Leet-Fee and that they have used to distrain for the same And shewed That at a Leet there holden 5 July 26 Eliz. c. The Plaintiff replyed absque hoc that they used to distrain And it was found for the Defendant And it was moved in arrest of Iudgment Because the Defendant in making his Title to the Leet by Prescription Conveys the Hundred to him by a Que Estate without shewing a Deed of it See 11 H. 4. 242. Quod fuit concessum per Anderson Windham Periam and Rhodes contrary But if the Hundred it self had been in Question then the Exception had been material but here the Defendant intitles himself to a thing by reason of the Hundred and then it is sufficient for him to say That he is seised of the Hundred be it by right or by wrong Admit That by this not shewing the Avowry be vitious and defective It is to be considered if it be not helped by the Statute of Jeofail's 1 Cro. 217.245 18 Eliz. And therefore it is to be considered If an Avowry be within the meaning of the said Statute Anderson Although that the Avowant be quasi an Actor to have a Retorn of the Cattel if the Distress be adjudged lawful yet in truth he is Defendant and not Plaintiff And if the Defendant will justifie the taking and not avow he is meerly Defendant And although that he avow to have a Retorn yet he cannot be said Plaintiff no more than the Tenant who voucheth over another to recover in value may be said Plaintiff And therefore an Avowry cannot be said a Count or Declaration but a Answer to the Count or Declaration Windham and Periam conceived That an Avowry is within the Statute For it comprehends title And an Answer to an Avowry is said a Bar to an Avowry and an Avowry is in the place of a Declaration Admitting That an Avowry is within the Statute If the not shewing of the Deed be such a defect which may be helped by the Statute Anderson conceived That it was But the Plaintiff might have demurred upon the Avowry for not shewing of the Deed and have had iudgment But when he hath traversed the Prescription as to the point of the distress and the same is found against him Now it shall be intended that the Avowant hath a Deed although he hath not shewed it Windham The Title of the Avowant to the Hundred is the Foundation and ground of the Suit for if the Avowant hath not a Deed to make him a sufficient title to the Hundred he cannot have the Leet and if no Leet then no Leet-Fee and then the Avowant hath no cause to distrain Another Exception was taken to the Avowry because the Avowant hath not shewed any Seisin of the Leet-Fee And by Periam Such a seisin ought to be shewed in some person certain For although it needs not always to lay a Seisin in shewing by whose hands the seisin was had for the Inhabitants are charged and no person certain yet the seisin ought to be
was not so for it became void by matter of later time scil by the descent of the Feesimple For if one of the Daughters had died without Issue before the death of Robert so as the House of such Daughter had come to Robert and the other Sister there had been no Coparcener for the Son had all the Fee and the moyety of it is executed and the moyety expectant and the Sister hath the moyety for life and then the Devise is not good Also here are two survivors so as nothing is to be divided and therefore the Law shall say That the House of Robert is descended scil the Fee of it to the Daughter of Christien and Joan. And so Iudgment was given against the Husband who claimed to be Tenant by the Curtesie of the whole Land and Messuage CCXXXIII Large's Case Mich. 29 Eliz. In the Kings Bench. 2 Len. 82. IN an Action upon the Case the Case was this A. seised of Lands in Fee Devised the same to his Wife till William his younger Son should come to the age of 22 years the remainder when the said William should come to such age of his Lands in D. to his two Sons Alexander and John the remainder of his Lands in C. to two other of his Sons upon Condition Quod si aliquis dictorum filiorum suorum circumibit vendere terram suam before his said Son William should attain his said age of 22 years imperpetuum perderet eam And before such age two of his Sons Leased their parts which accrued to them by the Will of their Father for 60 years and so from 60 years to 60 years till 240 years were expired It was Argued by Bois That Alexander and John are Ioynt-Tenants and not Tenants in Common notwithstanding the Opinion of Audley 30 H. 8. Br. Devises 29. And he argued also That the said Leases from 60 years to 60 years is not within the Condition of the Devise for it is not a sale from which they only are restrained and so is it of a Ioynture made by any of the Sons to their Wives On the contrary It was argued because this remainder doth not vest presently for it is incertain if it shall vest or not For if William should die before he came to the age aforesaid it was conceived that the remainder was void 34. E. 3. Fitz. Formedon 68. A Man deviseth Land to his Wife for life so that if the said Wife be disturbed that the Land shall remain over in Fee scil to D. here is not any remainder until the Wife be disturbed So a Devise unto a Woman so long as she shall remain sole and that then it shall remain to B. here this remainder shall not begin till the marriage And this Condition of restraint of Alienation is good for he is not altogether restrained but for a time scil until his Son shall come to the age of 22 years As a Feoffment upon Condition That he shall not alien to J.S. See 29 H. 8. Br. Mortmain 39. A Lease made for 100 years and so from 100 years to 100 years until 800 years be expired is Mortmain And see the Statute de Religiosis The words are emere praesumat vendere A Lease for years is within such words emere vendere Also by this Lease the Will is defrauded and where the Statute of Gloucester Cap. 3. Wills That if a Man aliens Tenements which he holdeth by the Law of England with warranty the Son shall not be barred and yet if Tenant by the Curtesie be disseised to whom he releaseth with warranty the same is within the said Statute and yet a Release and an Alienation are not the same because they are in the like mischief and if the Sons might make a Lease for 240 years they might make a Lease for 2000 years So if the Sons had acknowledged a Statute of such a sum as amounted to the value of the Land it had been within the Condition It was holden That where the words are Circumibit vendere terram imperpetuum perdert this word imperpetuum should be referred to perdere and not to vendere Fenner This Lease is not within the word Sell For if the Custom be That an Enfant of the age of 15 years may sell his Land yet by that he cannot devise it Note That afterwards the words of the Condition set down in the Will in English were read viz. Shall go about to sell his part shall for ever lose the same And then it is clear that this word imperpetuum shall be referred in Construction to perdere and not to vendere for this word Shall is inserted betwixt both CCXXXIV Mich. 29 Eliz. In the Common Pleas. IN a Formedon The Tenant pleaded a Fine with proclamations The Demandant replyed Nul tiel Record And the truth of the Case was That the Record of the Fine which remained with the Chirographer did warrant the Plea but that which remained with the Custos Brevium did not warrant it and both these Records were shewed to the Court. And Rhodes Iustice cited a President 26 Eliz. Where by the advice of all the Iustices of England where such Records differ the Record remaining with the Custos Brevium was amended and made according to the Record remaining with the Chirographer Which Windham concessit And afterwards the said President was shewed in which was set down all the proceedings in the amending of it and the names of all the Iustices by whose direction the Record was amended were set down in it And that the said President was written and the amendment of the said Record recorded by the Commandment and appointment of the said Iustices in perpetuam rei memoriam And the reason which induced the said Iustices to make such Order is here written because they took it That the Note remaining with the Chirographer est principale Recordum CCXXXV Sir Gervase Clifton's Case Mich. 29 Eliz. In the Kings Bench. 4 Len. 199. IN a Quo Warranto against Sir Gervase Clifton It was shewed That the said Sir Gervase was seised of a Mannor and of a House in which he claimed to have a Court with View of Frank-Pledge and that he without any Grant or other authority usurpavit Libertates praedictas The Defendant pleaded Quod non usurpavit Libertates praedictas infra Messuagium praedict modo forma And upon that there was a Demurrer in Law For the Defendant ought to have said Non usurpavit Libertates praedictas nec eorum aliquam for he ought to answer singulatim And also he ought to have pleaded as well to the Mannor as to the House For if the Defendant hath holden Court within any place within the Mannor it is sufficient See 33 H. 8. Br. Franc. sans ceo 364. An Information was in the Exchequer That the Defendant had bought Wooll of A.B. contra Statutum The Defendant pleaded That he had not bought of A. and B. The Plea was not allowed but he
shall plead That he had not bought modo forma For if he hath bought of A.B. or J.S. the same is not material nor traversable Which Case Cook denyed to be Law. And he also conceived That the Information upon the Quo Warranto is not sufficient For by the same the Defendant is charged to hold a Court and it is not shewed what Court For it may be a Court of Pipowders Turn c. See 10 E. 4. 15 16. acc Shute Iustice The Quo Warranto contains two things in it self 1. A Claim And 2. An usurpation and here the Defendant hath answered but to the Vsurpation but saith nothing to the Claim And it hath been holden in this Court heretofore That he ought to answer to both And he said That it hath been holden in a Reading upon the Statute of Quo Warranto which is supposed to be the Reading of Iustice Frowick That a Quo Warranto doth not lie upon such Liberties which do not lie in Claim as Felons goods c. which lieth only in point of Charter CCXXXVI Venable's Case Mich. 29 Eliz. In the Kings Bench. THe Case was 1 Inst 351. a. Hughs Queries 13. A Lease was made to A. and B. for their lives the remainder to Tho. Venables in tail who 3 Eliz. was attainted of Felony 23 Eliz. there was a General Pardon Tho. Venables 24 Eliz. levied a Fine and suffered a Recovery to the use of Harris Serjeant Office is found Harris traversed the Office and thereupon was a Demurrer It was argued by Leake That Traverse did not lie in this Case 4 H. 7. 7 Where the King is entituled by double matter of Record the party shall not be admitted to his Traverse nor to his Monstrans de Droit but is put to his Petition Which see 3 E. 4. 23. in the Case of the Earl of Northumberland Where Tenant of the King is Attainted of Treason and the same is found by Office. See also 11 H. 4. in the Case of the Duke of Norfolk And the same is not helped by the Statute of 2 E. 6. Cap. 8. for the words are Untruly found by Office but here the Office is true By this Attainder Tho. Venables is utterly disabled to do any Act For by Bracton a Person attainted forisfacit Patriam Regnum Haereditatem suam 13 E. 4. One was attainted of Felony And before Office found the King granted over his Lands Also he is not helped by the General Pardon For before the General Pardon he had a special Pardon therefore the General Pardon nihil operatur as to him But by the Iustices the forfeiture doth remain until the General Pardon Harris to the contrary And he put the Case of Sir James Ormond 4 H. 7. 7. Where the King is entituled by matter of Record and the subject confesseth the title of the King and avoids it by as high matter as that is for the King Traverse in that case lieth and if the King be entituled by double matter of Record if the party avoids one of the said Records by another Record he shall be admitted to his Traverse And so here we have the Pardon which is a Record and that shall avoid the Record for the King And here the Pardon hath purged the forfeiture in respect of the Offence And he said That Tenant in tail being attainted of Felony shall not lose his Lands but the profits only for he hath his Interest by the Will of the Donor and it is a Confidence reposed in him and as Walsingham's Case is he cannot grant over his Estate And see in Wroth's Case Annuity granted pro Consilio impendendo cannot be granted over or forfeited for there is a Confidence See Empson's Case Dyer 2. and 29 Ass 60. If the Issue in tail be Outlawed of Felony in the life of his Father and gets his Pardon in the life of his Father after the death of his Father he may enter But by Thorp If the Issue in tail gets his Pardon after the death of his Father then the King shall have the profits of the Lands during the life of the Issue And the Case of Cardinal Pool was debated in the Parliament 27 Eliz. That he being Dean of Exeter was seised of Lands in the right of his Church and was attainted of Treason It was holden he should forfeit the profits of such Lands But admit That by this Attainder the Land be forfeited yet the party hath the Freehold until Office found See Nicholls Case Plow Com. And also the Case of the Dutchy in Plow Com. acc And here the Pardon hath dispensed with the forfeiture A Tenant of the King aliens in Mortmain before Office found the King pardons it it is good The Lord Poynings conveyed all his Lands to Sir Adrian Poynings who was an Alien and after made a Denizen and the King pardoned and released to him all his right in the said Lands without any words of grant and adjudged the same did bind the King And he said he had a good president 14 H. 7. Where a General Pardon before seisure into the hands of the King was allowed good contrary after a seisure without words of Grant. See Br. 29 H. 8. Br. Charter of Pardon 52. If a Man be attainted of Felony and the King pardons him all Felonies executiones eorundem and Outlawries c. and releases all forfeitures of Lands and Tenements and of Goods and Chattels the same will not serve but for life of Lands if no Office be found but it will not serve for the goods without words of restitution and grant for the King is entituled to them by the Outlawry without office But the King is not entituled to Land until Office be found See Ibid. 33 H. 8. 71. The Heir intrudes and before Office found the King pardons now the Heir is discharged as well of the Issues and profits as of the Intrusion it self But a Pardon given after the Office found is available for the Offence but not for the Issues and profits And he cited the Case of Cole in Plowden where a Pardon was granted mean between the stroak and the death See 35 H. 6. 1. 16 E. 4. 1. 8 Eliz. Dyer 249. Brereton's Case 11 Eliz. Dyer 284 285. Egerton Sollicitor contrary This Traverse is not good for he who traverseth hath not made title to himself as he ought upon which the Queen may take Issue for it is in the Election of the Queen to maintain her own title or to traverse the title of the party At the Common Law no Traverse lay but where Livery might be sued but that is helped by the Statute of 34 E. 3. but where the King is entituled by double matter of Record as in our Case he is no Traverse was allowed until 2 E. 6. Cap. 8. And in such Case two things are requisite 1. That the Office be untruly found 2. That the party who is to be admitted to his Traverse have just title or Interest
of Estate of Freehold c. But in our Case the Office is confessed by the Traverse to be true although that the conveyance be not truly found And also Harris at the time of the Office found had not just title but his Interest came to him long time after the Office found Also the traverse is not good for he traverseth the matter of the Conveyance which is not traversable For if the Queen hath title non refert quo modo or by what Conveyance she hath it As to the matter in Law Tenant in tail in remainder is Attainted of Felony If the King during the life of the Tenant in tail shall have the Freehold And he conceived she should For it shall not be in abeyance and it cannot be in any other for when he is attainted he is dead as unto the King The chief Lord cannot have it For the Tenant for life is alive and also he in the remainder in Fee c. The Donor shall not have it for the Tenant is not naturally dead but civilly and the Land cannot revert before the Tenant in tail be naturally dead without Issue But if there were any other in whom the Freehold could vest then the King should not have the Freehold but only the profits So if the Tenant be attainted the Lord shall have the Land presently 3 E. 3. 4 E. 3. The Husband seised in the right of his Wife is attainted of Felony the King shall have but the profits because that the Freehold rests in the Wife and if the Lord entreth the Wife shall have an Assise And Tenant in tail may forfeit for his life as he may grant during his life See Old N.B. 99. If Tenant in tail for Life Dower or by the Curtesie be attaint of Felony the King shall have the Land during their lives and after their decease he in the Reversion shall sue to the King by Petition and shall have the Lands out of the Kings hands And there it is further said That the Lord by Escheat cannot have it for the party attainted was not his very Tenant but he in the Reversion for the term yet endures But now is to see If the Freehold be in the King without Office And I conceive that it is Where the King is entituled to an Action there the King ought to have an Office and a Scire facias upon it As where the King is entituled to a Cessavit Action of Waste c. 14 H. 7. 12. Where entry in the Case of a Common person is necessary there behoves to be an Office for the King. As where the Kings Villain purchaseth Lands or an Alien born c. so is it for a Condition broken Mortmain c. In some Cases an Office is only necessary to instruct the King how he shall charge the Officer for the profits which may be supplyed as well by Survey as by Office As if the King be to take by descent or as the Case is here And it is true That a person attainted of Felony may during his Attainder purchase Lands and yet he cannot keep it against the King. And it is clear That by the Common Law in such Cases the Land was in the King but not to grant For the Statute of 18 H. 6. was an Impediment to that But now that defect is supplyed by the Statute of 33 H. 8. So as now the King may grant without Office. See 26 Eliz. Cook 3 Part Dowty's Case And in our Case Office is not necessary to entitle the King but to explain his Title See 9 H 7. 2. The Lands of a Man attainted of High Treason are in the King without Office so where the Kings Tenant dieth without Heir or Tenant in tail of the gift of the King dieth without Issue See Br. Office before the Escheator 34. See 13 H. 4. 278. A Man Attainted of Treason the King before Office grants his Lands and Goods Things which lie in Grant as Advowsons Rents c. such things upon Attainder are in the King without Office. As to the General Pardon of 23 Eliz. He conceived That the same did not extend to this Case and that this Interest of the Queen by this Attainder did not pass by the Pardon out of the Queen So if the Queen had but a Right and title only Popham Attorny General By this Attainder the Estate of him in the Remainder in tail accrued to the Queen for the life of him in the Remainder For by our Law Felony is punished by the death of the Offendor and the loss of his Goods and Lands for the example of others therefore nothing is left in him Tenant for life is attainted of Felony The King pardons to him his life yet he shall have his Lands during his life for he himself cannot dispose of them for his life And so it is of Tenant in tail c. for he may forfeit all that which he hath and that is an Estate for his life which is the Freehold If Lands be given to one and his Heirs for the life of another and the Donee be attainted of Felony the King shall have the Land during the life of Cestuy que vie for the Heir cannot have it because the blood is corrupt and there is not any Occupancy in the Case For 17 E. 3. the Iustices would not accept a Fine of Lands for the life of another because an Occupant might be in the Case But for a Fine of Lands to one and his He is for the life of another they accepted a Fine for there is no mischief of Occupancy Land is given to A. for life the remainder to B. for life the remainder to the right Heirs of A. who is attainted of Felony A. dieth now the King hath a Fee executed And here in our Case If this Tenant for life had been dead no Praecipe would lie against him in the remainder being in possession but the party who had right was to sue to the King by Petition 4 E. 3. If one seised in the right of his Wife of Lands for life be attainted the King shall have exitus proficua But I conceive that Case is not Law For see F.N.B. 254. D. The Husband seised in the right of his Wife in Fee is Outlawed of Felony the King seiseth the Husband dieth Now shall issue forth a Diem Clausit extremum the words of which Writ are in such case Quia A. cujus terra Tenement quae ipse tenuit de jure haereditate N. uxoris suae adhuc superstites occasione cujusdam utlagariae in ipsum pro quadam felonia inde indictatus fuit c. in manu Domini H. Patris nostri extiterunt c. therefore the King hath not exitus tantum but also the Land it self See to the same purpose the Register 292. b. And see also now in the Book of Pleas of the Crown 186 187. which affirmeth That Tenant in tail being attainted of Felony shall forfeit the
Land during his life And he conceived That this Estate of Tho. Venables was in the King without Office not to grant for he is restrained by the Statute of 18 H. 8. but it is in him so before Office that he who hath right ought to sue to the King by Petition if he will have the same Yet he conceived That before the said Statute of 18 H. 6. the King might grant it before Office as it appeareth by Thirning 13 H. 4. 278. which was before the Statute So if the Kings Tenant makes a Lease for years the remainder over to another in Fee who dyeth without Heir the said remainder is in the King without Office because a common person in such case cannot enter but a Claim is sufficient and therefore it shall be in the King without Office. As to the Pardon He conceived That it did not extend to this Estate For the same is a Freehold therefore not within the Pardon As if the Kings Tenant be attainted of Felony and the King pardons him all Offences and all which he may pardon these words will not go or extend to Freehold but only to personal matters and such punishments and pains which do concern Chattels But it may be Objected That in this Pardon title of Quare Impedit and Re-entries for Conditions are excepted and therefore if they had not been excepted they had been released by the Pardon And therefore this Pardon doth extend to Inheritances and Freeholds As to that I say That such Exceptions were not in use in the time of King Ed. 4. and such Inheritances and Freeholds were not taken to be within such Pardons And such Exceptions began 5 Eliz. And he said he had been of Counsel in such Cases where it had been taken That such Pardons did not extend to Freeholds As an Abbot was disseised and during the Disseisin the Abby was dissolved the King made such a Pardon the same did not transfer the Kings right And in this Case there are divers Exceptions of Goods and Chattels in many cases and therefore it cannot be intended that this Pardon doth extend to Freeholds And see the said Act of Pardon There the Queen gave and granted all Goods Chattels Debts Fines Issues Profits Amercements Forfeitures and Sums of Mony which word Forfeiture shall be intended personal forfeiture and not otherwise for it is coupled with things of such nature And as to the Traverse he conceived That it did not lie in this Case For the Office is not untrue in substance although it be void in Circumstances And also the King here is entituled by double matter of Record i. e. the Attainder and the Office. And he said That the Statutes of 34 36 E. 3. which gave Traverse are to be meant of Offices found virtute Officii and not virtute Brevis for then Escheators were very troublesome And 2 E. 6. doth not give traverse but where the Office is untruly found As if the Kings Tenant be disseised and the Disseisor be Attainted The Queen seiseth the Land Now the Disseisee hath no remedy by traverse upon the Statute of 2 E. 6. but is put to his Monstrans de Droit for that the Office is true But if I be the Kings Tenant and seised of Lands accordingly and it is found that J.S. was seised of my Land and attainted c. whereas in truth he had not any thing in my Land there Traverse lieth For the Office is false And so our Case for the Traverse is at the Common Law. And it is true that Venables was seised c. Cook to the contrary And he conceived That by the Attainder the Queen had gained but a Chattel And that notwithstanding this Forfeiture If Venables had been in possession a Praecipe should be brought against him And whereas it hath been said by Mr. Attorny That the Writs set down in the Register are the best Expositors of our Law the same is not so For the Register saith That Waste lieth notwithstanding a mean Remainder which is not now Law but it hath been clearly ruled to the contrary See acc 50 E. 3. The Register therefore and the Writs are subject to the Iudgments of our Law. And the Writ of Diem clausit extremum is not to the contrary For I confess that in such case Hob. Rep. 342. the Land shall be seised into the Kings hands but the King shall have but a Chattel in it It hath been argued He may grant therefore he may forfeit Nego Consequentiam For a Man seised in the right of his Wife may grant but not forfeit Gardian in Socage may grant but not forfeit The Husband may grant a Term for years which he hath in the right of his Wife but he cannot forfeit it A Woman enheritrix taketh Husband and afterwards is attainted of Felony the King pardons him they have Issue the Woman dieth the Husband shall be Tenant by the Curtesie which proveth that the King hath no Freehold by this Attainder Before the Statute of West 2. Tenant in tail post prolem suscitatam might forfeit the Land but now the Statute hath so incorporated the Estate tail to the Tenant in tail that it cannot be devested yea a Fine levied ipso jure est nullus although as to the possession it be a discontinuance And that is the reason wherefore Tenant in tail shall not be seised to another's use See Stamford 190. b. The Husband seised in the right of his Wife is attainted of Felony the King shall have the Issues of the Land of the Wife during the life of the Husband c. So if Tenant in tail be Attainted of Felony that is but a Chattel in the Lands of the Wife and also in the Lands of the Tenant in tail and if the possessions of a Bishop be seised into the Kings hands for a Contempt In such case the King hath possession and not only the profits The same Law of Lands of Tenant in tail or for life being attainted of Felony So seisure for alienation without Licence or of the possessions of Poor Aliens See Br. Reseisure 10. So where the seisure is for Idiocy And he conceived That nothing is in the King without Office. And as to the Case of 13 H. 4. 6. I confess it For all that time many and amongst them Lawyers and Iustices were attainted by Parliament And so was Sir John Salisbury whose Case it was and their Lands by Act of Parliament given expresly to the King and therefore I grant that their Lands were in the King without Office. Tenant in Fee of a Common Lord is attainted of Felony his Lands remain in him during his life till the entry of the Lord and where the King is Lord until Office be found but in the case of a Common person after the death of the person attainted it is in the Lord before Entry and in the Case of the King before Office for the Mischief of Abeyance And see the Lord Lovell's
Gravenor and Parker 3 4 Mar. Dyer 150. A Lease was made to A. for life by Indenture and by the said Indenture a Proviso was That if the Lessee died within the Term of 60 years then next ensuing that then his Executors should have it in right of the Lessee for so many of the years as should amount to the number of 60 years to be accounted from the date of the Indenture And it was holden That the secondary Interest to the Executor was void And that the words concerning the same went only in Covenant CCXLV The Lord Compton's Case Trin. 29 Eliz. In the Common Pleas. 2 Len. 211. Kellow 41. 4 Inst 85. NOte It was holden by the Lord Anderson Chief Iustice in this Case That if Cestuy que Use after the Statute of 1 R. 2. Leaseth for years and afterwards the Feoffees Release to the Lessee and his Heirs having notice of the Vse that that Release is to the first Vse But where the Feoffees are disseised and they Release to the Disseisor although that they have notice of the use yet the same is to the use of the Disseisor And no Subpoena lieth against the Disseisor See 11 E. 4. 8. CCXLVI Sir Thomas Gorge and Dalton's Case Trin. 29 Eliz. In the Common Pleas. SIr Thomas Gorge and the Lady Helene his Wife brought a Quare Impedit against Francis Dalton Who pleaded That the Queen was seised of the Mannor of D. to which the Advowson c. was appendant and so seised the Church became void And that afterwards the Queen granted the said Mannor with the Advowson to J.S. who presented the Defendant It was the clear Opinion of the Court That by that Grant of the Queen the Advowson did not pass although that the King by his Prerogative may grant a thing in Action Quod vide Dyer 13 Eliz. 300. against F.N.B. 33 16 H 7. CCXLVII. Hill. 29 Eliz. In the Common Pleas. A Copyholder with the leave of the Lord Leased for years 1 Len. 297. Hob. Rep. 177. and afterwards surrendred the Reversion with the Rent to the use of a stranger who was admitted accordingly It was moved If in this case there needed any Attornment either to settle the Reversion or to create a privity It was holden in this Case by Rhodes and Periam Iustices That the surrender and admittance ut supra are in the nature of an Inrollment and so amount to an Attornment or at the least do supply the want of it CCXLVIII Carter and Marten's Case Mich. 29 Eliz. In the Kings Bench. TWo Men made an Obligation joyntly for Debt The principal in the Obligation made him who was surety only for him in the said Obligation for payment of the Mony his Executor who payed the Mony generally And whether it shall be said that he paid it as Executor or as an Obligor was a Quaere not resolved by the Court. CCXLIX Mich. 29 Eliz. In the Exchequer A. Was endebted to B. who was endebted to the Queen B. assigned his Debt unto the Queen By all the Barons Process shall be awarded out of the Exchequer to enquire what Goods A. had at the time of the Assignment and not what he had tempore Scripti praedict facti c. CCL Hill. 30 Eliz. In the Exchequer A. Was accomptable to J.S. and afterwards J.S. was Out-lawed in an Action personal A. died The Queen by her Letters Patents granted unto B. omnia bona catalla exitus proficua forisfactur advantagia quaecunque which came to her or accrued by reason of the Outlawry of the said J.S. And now B. brought an Action of Accompt against the Executors of the said A. as Executors of their own wrong The Defendants pleaded That they had Letters of Administration committed to them by the Ordinary and demanded Iudgment of the Writ The Plaintiff in maintenance of his Writ Replyed That the Defendants did Administer of their own wrong before that Administration was granted unto them Vpon which the Defendants did demur in Law. It was the Opinion of some of the Iustices That the wrong is urged by taking of Letters of Administration and now they are to be charged as Administrators only and not otherwise See 50 E. 3. 9. 20 H. 6. 1. And see the Case of the Cardinal of Canterbury 9 E. 4. 33. If one Administreth of his own wrong and afterwards takes Letters of Administration he shall be sued not as Executor but as Administrator See 21 H. 6. 8. But Gawdy Iustice conceived That the Defendants might be charged as Executors As to the Grant of the Queen of this Action of Accompt See Br. Pat. 98. 32 H. 8. that the King may grant a thing in action which is personal as debt and damages or the like Or a thing mixt as the Wardship of the body but not a thing real as an Action concerning Lands Rights Entries But it was agreed on all sides That if this Action had been granted specially it had been clearly good And it was Observed That in the principal Case the Accomptant was dead before the Grant so that his Executors were chargeable to the Queen to render an Accompt and the Queen was entituled to it It hath been Objected That this Action of Accompt came to the King by reason of his Prerogative Royal and in vertue thereof the Executors are accomptable to her and therefore the Queen cannot grant the same over to a Subject Certainly the same is not an Incident inseparable from the Crown nor a Flower of the Crown as the King cannot grant over to a Subject power to pardon Felons for that is proper and peculiar to the person of the King nor that a Subject may have a Court of Chancery And although this matter of Accompt is at the first i. e. at the time of the Grant uncertain yet by matter ex post facto it may be reduced to certainty i.e. by the Accompt and although the Accompt be not expresly named in the Letters Patents yet the words of the Grant ut supra do amount to as much And Gawdy Iustice conceived That this Accompt ought to be brought in the name of the Queen And all the Iustices were of Opinion That if the said A. had been living at the time of the said Grant of the Queen the Grant had not been good for then the Action against the Executors which is the matter of Prerogative had not been vested in the Queen CCLI Specot's Case Mich. 30 Eliz. In the Common Pleas. 5 Co. 57. HUmphry Specot and Elizabeth his Wife brought a Quare Impedit against the Bishop of Exceter c. of the Church of Tedcole in the County of Devon The Bishop pleaded That the Plaintiffs presented to him one John Holmes quem super Examinationem invenit Scismaticum inveterat ' and so non habilem to be instituted vel ad acceptandum aliquod Beneficium cum Cura Animarum for which he refused him and of such Refusal gave notice to
that the Queens Attorny said That it is true that Thomas Robinson was possessed but it is further said That Thomas granted it to Paramour and so the Interest of Thomas is confessed on both sides and therefore the Iury shall not be received to say the contrary But the Opinion of Manwood Chief Baron was That if the parties do admit a thing per nient dedire the Iury is not bound by it but where upon the pleading a special matter is confessed there the Iury shall be bound by it And afterwards the Issue was found against Robinson the Defendant CCLXXIII Trin. 30 Eliz. In the Kings Bench. IN an Action of Debt by A. against B. upon an Obligation the Defendant pleaded tender of the Mony according to the Condition upon which the parties were at Issue And after the Defendant pleaded That after the Darrein Continuance the Debt now in demand was Attached in the Defendants hands according to the Custom of London for the debt of C. to whom the Plaintiff was endebted It was the Opinion of the Court That the Plea was insufficient for it is altogether contrary to the first Plea. And also the Court held That in an Action for the debt depending here in this Court the debt cannot be attached and the Court would not suffer a Demurrer to be joyned upon it but over-ruled the Case without any Argument For it was said by Wray Chief Iustice That it was against the Iurisdiction of the Court and the Priviledge of it CCLXXIV Trin. 30 Eliz. In the Kings Bench. NOte It was holden by the Court That if a Copyholder in Fee dieth seised and the Lord admits a stranger to the Land who entreth that he is but a Tenant at Will and not a Disseisor to the Copyholder who hath the Land by descent because he cometh in by the assent of the Lord c. CCLXXV Trin. 30 Eliz. In the Kings Bench. AN Ejectione firmae was brought de uno Cubiculo and Exception was taken to it But the Exception was disallowed The Declaration was special viz Leas unius Cubiculi per nomen unius Cubiculi being in such a House in the middle story of the said House And the Declaration was holden good enough and the word Cubiculum is a more apt word than the word Camera And such was the Opinion of Wray Chief Iustice And it was said That Ejectione firmae brought de una rooma had been adjudged good in this Court. CCLXXVI Johnson and Bellamy's Case Rot. 824. Mich. 30 31 Eliz. In the Common Pleas. IN an Ejectione firmae It was holden by Special Verdict 1 Cro. 122. That W. Graunt was seised of certain Lands and by his Will devised the same to Joan his Wife for life And further he willed That when Rich. his Brother should come to the age of 25 years that he should have the Land to him and the Heirs of his body lawfully begotten W. Graunt died having Issue of his body who was his Heir Rich. before he attained the age of 25 years levied a Fine of the said Lands with proclamations in the life and during the seisin of Joan to A. sic ut partes finis nihil habuerunt And If this Fine should bar the Estate in tail was the Question And the Iustices cited the Case of the Lord Zouch which was adjudged Mich. 29 Eliz. Where the Case was Tenant in tail discontinued to E. and afterwards levied a Fine to B. That although that partes finis nihil habuerunt yet the said Fine did bind the Estate tail But the Serjeants at the Bar argued That there was a difference between the Case cited and the Case at Bar For in the Case cited the Fine was pleaded in Bar but here it was not pleaded but found by Special Verdict To which it was said by the Court That the same is not any difference For the Fine by the Statute is not any matter of Estoppel or Conclusion but by the Statute binds and extincts the entail and the right of it And Fines are as sufficient to bind the right of the entail when they are found by Special Verdict as when they are pleaded in Bar. And Periam Iustice said A Collateral Warranty found by Special Verdict is of as great force as pleaded in Bar. And afterwards Iudgment was given That the Estate tail by that Fine was utterly barred and extinct CCLXXVII Mich. 30 Eliz. In the Kings Bench. THe Case was A Man made a Lease for life rendring Rent at Michaelmas and further Leased the same to the Executors of the Lessee until Michaelmas after the death of the Lessee It was affirmed by Cook That in that Case it was adjudged That the word Until shall be construed to extend to the Term unto the end of the Feast of St. Michael and so the Rent then due payable by the Executors for without such Construction no Rent should be then due because the Term ended before Michaelmas CCLXXVIII Pasch 30 Eliz. In the Kings Bench. ONe was bounden to stand to the Award of two Arbitrators who awarded That the party should pay to a stranger or his Assigns 200 l. before such a day The stranger before the day died B. took Letters of Administration The Question was If the Obligee should pay the Mony to the Administrator or if the Obligation was discharged It was the Opinion of the whole Court That the Mony should be paid to the Administrator for he is an Assignee And by Gawdy If the word Assigns had been left out yet the payment ought to be made to the Administrator Which Cook granted CCLXXIX Pasch 30 Eliz. In the Common Pleas. THe Defendant in Debt being ready at the Bar to wage his Law was examined by the Court upon the points of the Declaration and the cause of the Debt upon which it appeared that the Plaintiff and Defendant were reciprocally endebted the one to the other And accompting together they were agreed That each of them should be quit of the other It was the Opinion of Periam and Anderson Iustices That upon that matter the Defendant could not safely wage his Law For it is but an agreement which cannot be executed but by Release or Acquittance CCLXXX Pasch 30 Eliz. In the Common Pleas. TEnant in tail Covenanted with his Son to stand seised to the use of himself for life and afterwards to the use of his Son in tail the remainder to the right Heirs of the Father The Father levied a Fine with proclamations and died It was moved by Fenner If any Estate passed to the Son by that Covenant for it is not any discontinuance and so nothing passed but during his life and all the Estates which are to begin after his death are void Anderson Iustice The Estate passeth until c. And he cited the Case of one Pitts where it was adjudged That if Tenant in tail of an Advowson in gross grants the same in Fee and a Collateral Ancestor releaseth with warranty and dieth
that the same is a good bar for ever CCLXXXI Ognell's Case Pasch 30 Eliz. In the Common Pleas. IN a Replevin against Ognel who avowed for Rent Clayton Rep. 91. the Plaintiff was Nonsuit the Question was Whether the Court might assess Damages without a Writ of Enquiry of Damages It was the Opinion That they might for they are not in respect of any local matter but they accrue to the Avowant for the delay in the non-payment of the Rent Contrary where Iudgment is given for the Plaintiff there the Court shall not assess the Damages for he ought to recover for the taking of his Cattel of which the Iudges cannot take notice and the Damages may be greater or less according to the value of the Cattel and the Circumstances of the taking and delaying of them CCLXXXII Hitchcock and Harvy's Case Mich. 30 31 Eliz. In the Kings Bench. HItchcock brought an Action of Trespass for breaking of his Close and spoyling of his Grass against Harvey and the Case was That A. was seised of the Land in which c. and granted to the Plaintiff proficuum of such a Mead called Tentry Mead post falcationem inde scil the Ear-grass And it was found by Verdict That Ear-grass is such Grass which is upon the Land after the mowing until the Feast of the Annunciation after It was moved If such a Grantee might have Trespass Quare Clausum fregit And it was the Opinion of the Court 1 Cro. 421. That he could not but for spoiling the Grass he might Clench Iustice If a Man be Outlawed in an Action personal The Queen hath the profits of the Land and lets the same to another He shall have an Action of Trespass Quare Clausum fregit Which Shute granted And afterwards because the Iury had given Damages entire as well for the breaking of the Close as for the spoyling of the Grass the Plaintiff could not recover the Damages CCLXXXIII Chard and Tuck's Case Hill. 30 Eliz. In the Kings Bench. 1 Cro. 41. 1 Cro. 15 16 114 170.130 Shep. Touch. 94. Bro. Tit. Judgment 83. IN an Ejectione firmae by Chard against Tuck It was found by special Verdict That A. was seised of a Messuage and of a Curtilage and of a Garden to the same belonging in Fee and that the Curtilage was on the back side of the said House and the Garden next beyond the said Curtilage the Garden being divided from the Curtilage by a Wall and a Door through the Wall into the Garden from the said Curtilage and no Way to either of them but through the House And it was further found That the said A. by his Will devised the said Messuage to B. The Question was If by that Devise the Curtilage and Garden did pass Vide inde Br. 23 H. 8. Feoffments 53. Where a Feoffment is made of such a Messuage cum pertinentiis they shall pass Curtilage is a member at the least an Appendix of a Messuage And by the clear Opinion of the whole Court in the Case at Bar It was Resolved That by this Devise the Curtilage and Garden did pass And it was said by Wray Chief Iustice It matters not Whether the Curtilage and Garden be before the House or behind it for in both Cases they shall pass CCLXXXIV Baxter's Case Mich. 30 Eliz. In the Exchequer AN Information in the Exchequer was exhibited against Baxter of Cambridge upon the Statute of 7 E. 6. Cap. 5. of Wines and the selling of them against the purview of the said Statute To which the Defendant pleaded That King Rich. the second in the 5th year of his Reign Granted unto the Chancellor and his Deputy and the Scholers of the Vniversity of Cambridge Custodiam assisae panis vini Cervisiae correctionem punitionem eorundum 4 Inst 229. And that the Queen that now is confirmed the said Grant in the third year of her Reign by her Letters Patents which were after confirmed by Act of Parliament 13 Eliz. And so pleaded to the Iurisdiction of the Court. Vpon which It was demurred in Law. Harris argued for the Queen and said That the Defendant could not plead that matter to the Iurisdiction of the Court at that time for it is now too late for that he hath oftentimes imparled and that generally In which case the Court having general and ordinary Iurisdiction and Authority to hold plea of such matters shall have Conusans of them notwithstanding the matter which hath been shewed and set forth On the other side It hath been said Quod Assisa venit de assidendo that is to have the Assise as well in respect of the price as of the measure Which although it be admitted yet the same shall not help them For they of Cambridge have not Assisam ipsam but only Custodiam assisae i.e. that the Assise set down by the Queen and her Councel be well kept And that no other price or measure be used in the uttering of Wines Popham The Queens Attorny to the same intent The Statute of 51 H. 1. Ordains That when Wheat is at such a price in the Market then every penny Loaf is to weigh so much and so when Barley is at such a price then so much Beer shall be sold for a penny And that was the general Assize limited by the said Statute In these Cases the Vniversity cannot appoint another Assize than that which is set down by the said Statute but to take care that the said Statute be well executed in such Assise See the Statute of 31 E. 1. of Wines scil That Wines shall be sold according to the Assize of the King i. e. 12 d. the Gallon And in that matter the Vniversity hath Custodiam only i.e. the survey of the Assize and the execution of it and authority to punish the Offences against the said Statutes as well in the price as in the measure according to the said Statutes and not otherwise c. And as to the Statute of 7 E. 6. Cap. 5. By which it is provided That the said Statute shall not be prejudicial to any of the Inhabitants of Oxford or Cambridge or unto the Chancellor or Scholers there to impair their Liberties c. The same ought to be intended that the Liberties and Franchises which the Vniversities had before by the Grant ut supra c. i. e. to punish such Offences against the Assise according to the old Statutes For the said Statute of 7 E. 6. Cap. 5. being in the Affirmative doth not take away the punishment appointed by any other Statute but doth continue the same And a further penalty is appointed propter ulteriorem poenam And as to that which hath been said That by the said Grant of Rich. the 2d 3 Cro. 52 62 they have granted to them Cognitionem omnium Actionum personalium inter partem partem That will not help the Vniversity in this Case For the Informer by the Statute hath Liberty to
sue in what Court he will in any of the Kings Courts of Record And in this Case the Queen is quodam modo a party For she is to have the moyety And so this cause is not meerly betwixt party and party c. CCLXXXV Willoughby's Case Trin. 30 Eliz. In the Kings Bench. 2 Len. 117. WIlliam Willoughby and two other were Endicted That where the Parson of the Church of D. and all his predecessors have used to have Common in such a place The said Defendants Willoughby and others had enclosed the same and that enclosure was upon their own Land. It was moved That upon this matter they ought not to have been endicted but the party grieved was put to his Action As where a presentment is made of a Disseisin See 27 Ass 20. And it was the Case of one Marden 29 Eliz. upon the stopping of a High-Way upon his own Land and if it were upon other Land it were not material for it is but an Impeachment to take Common which cannot be Vi et armis c. Also this Endictment is Recorded and Certified as found before Iustices of Assize and Gaol-Delivery and they cannot take such presentment And although the Iustices of Assize and Gaol-Delivery were in rei veritate also Iustices of Peace yet the Endictment being recorded and certified to be taken before them in quality of Iustices of Peace shall not help it for the Court shall not respect any Authority but that which appears upon the Record And for these Causes the parties were discharged CCLXXXVI Gates and Hollywell's Case Pasch 30 Eliz. In the Kings Bench. A Man having Issue two Sons devised That his eldest Son with his Executors should take the profits of the Lands until his younger Son should come to the age of 22 years and then the younger Son should have the Lands to him and his Heirs of his body It was the clear Opinion of all the Iustices That the eldest Son should have a Feesimple in the Lands until the younger Son came to the said age of 22 years CCLXXXVII Cony and Beveridge's Case Mich. 30 Eliz. In the Common Pleas. 2 Len. 146. IN Debt upon an Obligation the Case was That the Plaintiff Leased to the Defendant certain Lands in the County of Cambridge rendring rent And afterwards the Defendant became bounden to the Plaintiff in an Obligation for the payment of the said Rent upon which Bond the Plaintiff brought an Action of Debt in the County of Northampton To which the Defendant pleaded payment of the Rent without shewing the place of payment and upon that they were at Issue And it was found by Nisi prius in the County of Northampton for the Plaintiff It was moved in Arrest of Iudgment That the Issue is mis-tryed for here the payment of the Rent being pleaded without shewing the place of payment it shall be intended that the Rent was paid upon the Land which is in the County of Cambridge and there the Issue ought to be tryed See 44 E. 3. 42. And it was the Opinion of Anderson Chief Iustice That no Iudgment should be given for the Plaintiff for the Cause aforesaid But Rhodes and Windam Iustices were of a contrary Opinion For it doth not appear That the Issue is mis-tryed because that no place of payment is pleaded and it may be for any thing that is shewed That the Rent was not paid in the County of Northampton CCLXXXVIII The Blacksmith's Case Mich. 30 Eliz. In the Common Pleas. A Blacksmith of South Mimmes in the County of Middlesex took an Obligation of another Blacksmith of the same Town upon Condition that he should not exercise the Trade or Art of a Blacksmith within the same Town nor within a certain precinct of the same And upon that Obligation the Obligee brought an Action of Debt in the Common Pleas depending which Suit the Obligor complained to the Iustices of Peace of the County against the Obligee upon which the matter being found against him by Examination the Iustices committed the Obligee to Prison and now upon the whole matter Puckering Serjeant prayed a Habeas Corpus for the said Obligee to the Sheriff of Middlesex and hat it And Fleetwood Recorder of London being at the Bar the Court openly admonished him of that matter For by the Law Iustices of Peace have not Conusans of such Offences nor can entermeddle with them for their power is limited by the Commission and the Statutes And the Recorder relyed much upon the Opinion of Hull in 2 H. 5. 5. But it was said by the Court Although that this Court be a high Court to punish such Offences appearing before them of Record yet it doth not follow That the Iustices of Peace may also do so But as to the Obligation it self the Court was clear of Opinion That the same was void and against the Law. CCLXXXIX Russell and Broker's Case Mich. 30 Eliz. In the Common Pleas. 2 Len. 209. IN Trespass for cutting down of 4 Oaks The Defendant pleaded That the place where c. And that he is seised of a Messuage in D. and that he and all those whose Estate he hath c. habere Consueverant rationabile estoverium suum for fuel ad Libitum suum Capiendum in boscis subboscis arboribus ibidem crescentibus and that in Quolibet tempore anni unless in Fawning time The Plaintiff by Replication said That the place where is in the Forrest of D. c. And that the Defendant and all those whose Estate c. habere Consueverunt rationabile estoverium suum de Boscis c. per Liberationem Forestarii aut ejus Deputati prout Boscus pati potuit non ad exigentiam petentis And upon that Replication the Defendant demurred in Law. And it was the clear Opinion of the Court That Iudgment should be given against the Plaintiff For if he would have ousted the Defendant of his Prescription by the Law of the Forrest he ought to have shewed the Law of the Forrest in such Case Lex forestae talis est For the Law of the Forrest is not the Common Law of the Land and we are not bounden to take notice of it but it ought to be pleaded Or else the Plaintiff ought to have traversed the Prescription of the Defendant For here are two Prescriptions one pleaded by the Defendant by way of Bar The other set forth by the Plaintiff in his Replication without any traverse of that which is set forth in the Bar which cannot be good But if the Plaintiff had shewed in his Replication Lex forestae talis est then the Prescription of the Defendant had been answered without any more for none can prescribe against a Statute Exception was taken to the Bar because the Defendant hath justified the cutting down of Oaks without alledging That there was not any Vnderwoods But that Exception was not allowed for he hath his Choice ad libitum suum Another Exception was taken
to the Bar because he hath not shewed that at that time of the cutting it was not Fawning time Poph. 158. 2 Cro. 637 679. for at the Fawning time his prescription doth not extend to it and that was holden to be a material Exception but because that the Plaintiff had replyed and upon his Replication the Defendant had demurred the Court would not resort to the Bar but gave Iudgment upon the Replication and therefore Nihil Capiat per breve CCXC. Brocas's Case Mich. 30 Eliz. In the Kings Bench. BRocas Lord of a Mannor Covenanted with his Copyholder to assure to him and his Heirs the Freehold and Inheritance of his Copyhold And the said Copyholder in Consideration of the same performed Covenanted to pay such a sum It was the Opinion of the whole Court That the said Copyholder is not tyed to pay the said sum before the assurance made 1 Roll. 415. and the Covenant performed But if the words had been In Consideration of the said Covenant to be performed then he is bounden to pay the mony presently and to have his remedy over by Covenant CCXCI. Ireland and Higgius's Case Trin. 30 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared Owen Rep. 93. That he was possessed of a Greyhound ut de bonis suis propriis and that such a day he lost it and that it came to the hands of the Defendant by Trover and that the Defendant afterwards in Consideration thereof promised the Plaintiff to deliver the said Greyhound to the Plaintiff and shewed his request Ley The Action doth not lie For of those things which are ferae naturae the Plaintiff hath not any property but ratione fundi as of Deer c. And in Trespass for them he cannot say suos but only Quare claufum fregit lepores cepit without saying suos And to that purpose were cited 3 H. 6. 56. 18 E. 4. 14. 10 H. 7. 19. 22 H. 6. 12. 14 Eliz. Dyer 106. Sir John Spencer's Case And it was holden That the Action did not lie And if not for a Hawk much less for a Hound CCXCII Ognell and Trussell's Case Mich. 30 Eliz. In the Star-Chamber A Bill was Exhibited in the Star-Chamber by Ognell of London against one Trussell of Warwickshire setting forth such matter That whereas the said Trussell had for good Consideration sold and assured unto the said Ognell a Mannor Now to gratifie a great person who earnestly desired the said Mannor he for effecting thereof practised by fraudulent means to avoid the said assurance and practised by other persons to be Indicted of a Robbery supposed to be committed before the said Assurance and compounded with the Lord of the Fee that if he be attainted so that by such Attainder the said Mannor should escheat to the said Lord That he upon request should reassure to the said Trussell the said Mannor in Fee after Pardon obtained which was promised to him by the said great Parsonage Vpon which Indictment Trussell was Arraigned and Convicted upon Evidence which he himself procured to be falsly given against him And all that was to extort the Land which was lawfully sold before And upon the Bill Trussell demurred in Law because he is a person attainted of Felony and so dead in Law and therefore shall not be put to answer Hatton Lord Chancellor It is not reason that he be put to Answer for Nemo tenetur seipsum prodere And thereupon the Bill was referred to Anderson and Periam Iustices to Consider If the Defendant should be put to answer or not Who certified unto the Court That although the Defendant be attainted ut supra and so quodam modo dead in Law to all intents yet in Criminal Causes he shall answer Wherefore it was ordered That he answer accordingly CCXCIII Cardinal and Arnold's Case Mich. 30 Eliz. In the Common Pleas. CArdinal brought an Action upon the Case against Arnold and declared That the Dean and Chapter Ecclesiae Cathedralis Cantuar. per nomen Decani Capituli Ecclesiae Cathedral Metropolitan Christian Cantuar. Leased unto Seckford for years the Mannor of Hadley by force of which he was possessed And so possessed granted to the Plaintiff the Office of Stewardship of the said Mannor and the Defendant disturbed him The Defendant pleaded a Lease absque hoc that the said Seckford granted And it was found for the Plaintiff And it was moved in Arrest of Iudgment That that Lease being made in the manner aforesaid was void For the Declaration is That the Dean and Chapter Ecclesiae Cathedralis Cantuar where the Lease is made by the name ut supra Here are two several Names therefore two several Corporations therefore Decanus Capituli Ecclesiae Cathedralis Cantuariensis did not Lease But Decanus Capituli Ecclesiae Cathedralis Metrapolitan Christi did Lease CCXCIV. Anderson and Hayward's Case Pasch 30 Eliz. In the Kings Bench. A Copyholder of Inheritance of a Mannor in the hands of the King is ousted It was holden in such case That he hath not gained any Estate so as he may make a Lease for years upon which his Lessee may maintain an Ejectione firmae but he hath but a possession against all strangers And also in that Case It was holden That if a Copyholder dieth his Heir within age he is not bound to come at any Court during his Non-age to pray Admittance Or to tender his Fine Also that if the death of his Ancessor be not presented nor proclamation made he is not at any Mischief although he be of full age CCXCV. Brightman's Case Pasch 30 Eliz. In the Exchequer Chamber UPon a Writ of Error brought upon a Iudgment given in the King Bench The matter was A. Leased for 20 years to B. two Acres of Land rendring Rent with Condition of Re-entry who Leased one of the said Acres to C. for 10 years And afterwards granted the Reversion of the said Term in the said Acre to A. It was holden by the Iustices That the same was no present suspension of the said Condition because there was not any possession CCXCVI. Fitzhugh's Case Hill. 30 Eliz. In the Common Pleas. IN Dower against Fitzhugh who pleaded in bar a Fine with proclamations and 5 years passed after the death of the Husband of whose seisin she demanded Dower To which the Demandant said That within the 5 years after the death of her Husband she brought a Writ of Dower against the now Tenant and delivered the same to the Sheriff c. but did not shew that the Writ was Returned upon which the Tenant did demur in Law. It was holden by Periam Iustice That the Fine is not avoided by such manner of Claim For the words of the Statute are So that they pursue their Claim or Title by way of Action or lawful Entry within the 5 years but here the Demandant hath not pursued c. therefore she shall not be Retained by the said Statute
Commoner shall not use his Common before that the Lord hath put in his Cattel was holden to be a void Custom On the other side It was said That this Custom might have a lawful beginning and that it might be grounded upon the reason of the Common Law That a Remainder should not be without the assent of the particular Tenant and therefore that the Custom might be good And it was said That Wife should not have her Dower unless she claimed it within a year and a day that the same was adjudged to be a good Custom The Court delivered no Opinion in the Case but the Case was adjourned to another time CCCIV. Mich. 31 Eliz. In C. B. THE Case was a Man devised Socage Lands to his Brothers Son in tail to have the same at his age of 25 years and died having Issue a Daughter The Nephew after 21 years entred and levied a Fine and afterwards accomplished his age of twenty five years It was the Opinion of the whole Court That the Issue of the Devisee was barred by this Fine For the Heir in Tail and the Heir in Fee are all one by the Statute of 4 H. 7. And it was holden That this was not a Fine which doth enure by way of Estoppel but that it passeth the very right It was said to be the same Law If one who hath but a condition levyeth a Fine and afterward entreth for the condition broken c. CCCV Palmer and Smalbrook's Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case The Plaintiff declared 1 Len. 132. Owen 97. 1 Cro. 178. That the Defendant had recovered a certain Debt against one A. and thereupon took forth a Capias against the said A. to Arrest his Body and delivered the said Capias to the Plaintiff being then Sheriff and prayed a Warrant for the serving of the Capias and that he would name to him one B. for a special Bayliff and promised the Plaintiff That if B. Arrested A. by force of the said Capias and suffered him to escape that he would not sue him for the said escape and further declared That he made a Warrant according to the said Capias and therein named and appointed the said B. his special Bailiff who Arrested A. accordingly and afterwards suffered him to escape and that the Defendant notwithstanding his Promise aforesaid sued the Plaintiff for the said escape and it was found for the Plaintiff And it was moved in stay of Iudgment That that Promise was against the Law to prevent the punishment inflicted by the Statute of 23 H. 8. upon the Sheriff and that it is meerly within the said Statute and so the Promise void Cook This is not any Bond or Promise taken of the Prisoner nor of any for him and therefore it is not within the Statute and it was Davies Case Wray A Promise is within the Statute as well as a Bond. But the Statute doth not extend but where the Bond or Promise is made by the Prisoner or by some for him And afterwards Iudgment was given for the Plaintiff CCCVI Wood and Payn 's Case Trin. 31 Eliz. In the Kings Bench. IN an Ejectione firmae for Entry into a Messuage sive Tenementum and 4 Acres of Lands to the same belonging Vpon not guilty pleaded it was found for the Plaintiff It was moved by Cowper Serjeant That the Declaration is uncertain Messuagium sive Tenementum quod fuit Concessum Cook We will release our damages Kemp Then your Costs are gone also Cowper You cannot have Iudgment of the 4 Acres For the Declaration is 4 Acres to the said Messuage or Tenement belonging and for the incertainty to which thing belonging But to that it was said That as to the 4 Acres it is certain enough For the words To the same belonging are meerly void And afterwards the Plaintiff released damages and had Iudgment CCCVII Bennington and Bennington's Case Trin. 31 Eliz. In the Kings Bench. BEnnington brought an Action of Trespass against Bennington for breaking of his Close c. The Defendant pleaded That long time before the Trespass supposed That it was the Freehold of one Joan Bennington and that he as her servant and by her Commandment entred upon which they were at Issue And it was found That for two parts of the Land where c. in three parts to be divided it was the Freehold of the Plaintiff and for the other part that it was the Freehold of the Defendant and by the clear Opinion of the whole Court The Plaintiff could not have Iudgment for now it appeareth That the Plaintiff and Defendant are Tenants in Common betwixt whom an Action of Trespass doth not lie and although this Tenancy in Common be not pleaded but found by Verdict yet it was the Opinion of the Court That it is all one CCCVIII Brereton and Auser's Case Hill. 31 Eliz. In the Kings Bench. JOhn Brereton of the Inner-Temple brought a Writ of Error against Auser to Reverse an Outlawry And the Case was That the said Auser had caused the said Brereton to be endicted upon the Statute of Magna Charta and divers other Statutes For that Whereas the said Auser had sued the said Brereton in a Bill of Debt in the Court of Request against the said Brereton and by the said Suit procured the said Brereton to be imprisoned Vpon which Endictment Brereton was Outlawed And Error was assigned in the Outlawry because whereas the Endictment was taken in Middlesex the Exigent upon it was in London whereas it ought to issue out of Middlesex but the proclamations issued in the County whereof he was named Nuper and that was peremptory for if he make default upon that Process he shall encur the danger of a Praemunirè And for that cause the Outlawry was reversed Also the party was discharged of the Endictment for this Suit in the Court of Requests as it appeareth upon the Endictment was before Iudgment in the Bill of Debt CCCIX Constable and Farrer's Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case upon an Assumpsit the Plaintiff declared That whereas the Defendant had brought an Action against him the Issue in which ought to be tried at the next Assises at N. the Defendant in Consideration that the now Plaintiff should confess the Action aforesaid at the Assises holden the 4th of August promised that he would stand to the Arbitrament of J.S. for the said matter And upon Non Assumpsit the Iury found That the Defendant made such a Promise the 5th of August but not the 4th of August Cook I conceive That upon this Verdict the Plaintiff shall have Iudgment for in truth the Assises began the 4th of August and the Consideration was That the now Plaintiff should confess the Action at the same Assises which although they continue divers days yet in Law all is but one day And all the Assises shall be said to be holden the 4th of August
bring a new Writ But Gawdy said That the Writ brought was good enough CCCXVII Pike and Hassen's Case Mich. 31 Eliz. In the Kings Bench. AN Action upon the Statute of 32 H. 8. touching buying of Titles And the Bargain was laid in Norfolk but the Land c. was in Suffolk And the Issue was tryed in Norfolk and the value of the Land also And as to the 5 Acres they found the Defendant guilty and found also the value of them And for the Residue a Special Verdict was given and for the 5 Acres the Plaintiff had Iudgment presently And by the special Verdict it was found That the Defendant had occupied the Residue of the Land for two years before c. as Tenant at sufferance and afterwards sold the Inheritance Wray Chief Iustice Tenant at sufferance is in truth a Tort feasor by which his taking of the profits is not such as is intended by the Statute But yet he afterwards looking into the words of the Verdict which were That the Defendant tenuit the Lands for two years ex permissione of another thereupon it ought to be intended That he was Tenant at will. CCCXVIII Sparry and Warfield's Case Mich. 31 Eliz. In the Kings Bench. IN False Imprisonment against the Defendant and others they pleaded The Charter of Bridewell and that the Plaintiff was mali nominis famae and that certain Goods were stollen from J.S. and upon search the Plaintiff was found suspitiously c. And that thereupon they put him into Bridewell It was the Opinion of the Iustices That the Plea was not good CCCXIX. Bragg's Case Pasch 32 Eliz. Rot. 318. In the Kings Bench. IN an Action of Trespass by Strait against Bragg Quare Clausum fregit containing one Acre in C. in the County of H. and for the taking of a Horse The Defendant pleaded That long time before the Trespass The Dean and Chapter of Pauls were seised of the Mannor of C. in the said County in Fee in the right of their Church whereof the place where is parcel c. And so seised King E. 4th by his Letters Patents dated Anno 1 of his Reign granted to them all the Fines pro Licentia Concordandi of all their Homagers and Tenants resiants or not resiants within their Fee And shewed That for all that time they have used to have such Fines of their Tenants And shewed further That 29 Eliz. A Fine was levied in the Common Pleas between the Plaintiff and one A. of 11 Acres of Land whereof the place where the Trespass was done was parcel and the Post-Fine assessed to 15 s. And afterwards Scambler the forreign Opposer allowed to them the said 15 s. because the said Land was within their Fee and afterwards in the behalf of the said Dean and Chapter he demanded of the Plaintiff the said 15 s. who refused to pay it for which he by the Commandment and in the right of the Dean and Chapter entred and took the said Horse in the name of a Distress as Bailiff to the said Dean and Chapter for the said 15 s. and afterwards sold it c. upon which the Plaintiff did demur in Law And it was moved That here it is not averred That the Land whereof the Fine was levied was within their Fee but they say That Scambler allowed it because it was within their Fee. And that is not a sufficient averment quod curia concessit And also the opinion of the Court was Ante 56. 2 Len. 179. That the Dean and Chapter cannot distrain for this matter but they ought to sue for the same in the Exchequer as it appeareth 9 H. 6. 27. in the Duchess of Summersets Case Gawdy Iustice The Grant doth not extend to the Post-Fine for the Fine pro licentia Concordandi is the Kings Silver and not the Post-Fine Wray Iustice All passeth by it for it is about one and the same matter And they in Opinion to have given Iudgment for the Plaintiff Quaere of it CCCXX South and Marsh's Case Mich. 32 Eliz. In the Exchequer NOte It was holden by the Court That where Marsh was endebted unto South without any Obligation for it but only by a Note in writing signed with the Hand of Marsh scil By me W. Marsh but not sealed that such a debt might be assigned to the Queen although that before the Assignment against a Creditor he might have waged his Law for in as much as by these Notes and Bills the certainty of the debt appeareth and being true debts they may well be assigned See 21 H. 7. 9. An Obligation may be assigned to the Queel without Deed enrolled and where the Obligee is not endebted to the Queen But it cannot be assigned to a subject Noy 52. if not for a debt due by the Assignor to the Assignee for otherwise it is Maintenance And in this Case it was holden That where the King sues for a debt assigned to him the Obligor cannot plead Nihil debet for now by the Assignment it is become matter of Record CCCXXI. Trapp's Case Mich. 32 Eliz. In the Kings Bench. RObert Trapps 1 Eliz. seised of 15 Messuages in Clarkenwell in the Occupation of 15 several persons viz. A.B.C. c. and named them certain demised them to one Cox And afterwards conveyed the Inheritance of them to one Brian Trapps in Fee who afterwards demised to J.S. all those 15 Messuages in Clarken-well which Robert Trapps did demise inter alia to Cox by Indenture dated 1 Eliz. now in the Occupation of A.B.C. c. And one of the Occupiers names was left out in the recital And it was holden by the whole Court That notwithstanding the said Omission the said Messuage did pass for there was sufficient certainty before and the falsity came after the verity CCCXXII Brewin and Mansfield's Case Mich. 32 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared That A. was endebted to him in 10 l. and made the Defendant his Executor and died And that the Defendant in Consideration that the Plaintiff would forbear the Defendant for a certain time promised to pay it at two several days and shewed which in certain And it was found for the Plaintiff It was moved in Arrest of Iudgment That it is not set down in the Declaration by what portions the 10 l. shall be paid Clench Iustice conceived That the Defendant had liberty to pay it in what portions he pleased Gawdy He ought to pay it by equal portions as a Rent reserved payable at two Feasts without saying by what portions it shall be paid And he said That if the plea for the cause aforesaid had been defective yet now after Verdict all is helped for it is but form And afterwards the Opinion of the whole Court was That the matter shewed was not good to stay Iudgment Wherefore the Plaintiff had Iudgment to recover CCCXXIII Mich. 32 Eliz. In the Common Pleas. THe Case was The Plaintiff in a
ad Beneficium Ecclesiasticum pertinet Examinatio ad Judicium Ecclesiasticum 40 E. 3. 25. And see the Statute of 18 Eliz. that Pars gravata in the Case of Maintenance is not tyed to a year And this suit is conceived to be in such Quality being a private grievance to the party himself the King not being party but only the party grieved But where the penalty is expresly given to the King and him that shall sue there all the proceedings ought to be in both their names And Manwood Chief Baron said That this Issue shall be tryed by the Country Which see in the Book of Entries 396. CCCXXVII Owen Morgan's Case Mich. 32 33 Eliz. In the Exchequer OWen Morgan Exhibited an Information upon the Statute of Usury for an usurious Mortgage made and charged the Defendant That Cepit ultra 10 l. in Cl. for the forbearance for one year and that was out of the Issues Rents and Profits which he took in Middlesex of Lands in Glamorganshire in Wales Mortgaged to the Defendant Manwood Chief Baron said That one might take the Rents of Lands in Wales in the County of Middlesex but a Man cannot take the Issues and Profits of the Lands but where the Lands are And Leak 's Case was cited Where an Information was brought for cutting down of Wood and converting it into Coals And Leak the Informer laid the cutting to be in the County where the Wood grew but the Conversion of it into Coals in the County of Middlesex And Manwood said in the principal case That the taking of the Issues and Profits ought to have been layed where the Land was And such was the Opinion of the whole Court. CCCXXVIII Curson's Case Mich. 32 33 Eliz. In the Exchequer CUrson acknowledged a Statute to Starkey 4 Len. 10. Ante 239. Alderman of London and afterwards he acknowledged another Statute to one Hampden who assigned the same to Fitton who assigned the same to the Queen Starkey sued forth Execution upon his Statute and thereupon the Land is extended of Curson and he hath a Liberate of it It was agreed by all the Barons That if Starkey had execution upon the Statute before the Queen his Execution should stand against the Queen and the Queen should not put him out And it was further agreed by them That if A. recovers a Debt in the Common Pleas so as he hath title to sue forth Execution by Elegit and the Defendant sells his Lands and afterwards A. assigns his Execution to the Queen That the Queen should not have prerogative against the Feoffee to have execution of the whole Land. And it was also holden by Manwood Chief Baron That if Execution be had upon a puisne Statute and the same is afterwards avoided by more ancient Statute and afterwards the ancient Statute is satisfied That now the puisne Recognisee may re-enter without suing forth any new Execution CCCXXIX Butler and Lightfoot's Case Mich. 32 33 Eliz. In the Exchquer IN this Case It was holden by the Barons 4 Len. 9. That if Tenant for life be of a Copyhold the Remainder over in Fee to another he in the Remainder may surrender his Estate if there be not any particular Custom to the contrary for the Estate of Tenant for life and him in the remainder are but one Estate and the admittance of the particular Tenant is the admittance also of him in the Remainder CCCXXX Knight and Norton's Case Mich. 32 Eliz. In the Common Pleas. IT was holden in this Case That duress of Imprisonment is not intended but where the party is wrongfully imprisoned until he make the Bond and not where a Man is lawfully imprisoned for another cause and for his delivery he makes a Bond for that is not per duritiam imprisonamenti And if in such Case duresse be pleaded the other may say of his own accord sine duritia imprisonamenti without saying absque hoc that it was per duritiam imprisonamenti And so it was also holden in the Kings Bench. See 4 E. 4. 17. 12 E. 4. 7. CCCXXXI Hungate and Hall's Case Trin. 32 Eliz. In the Exchequer Ante 239. 4 Len. 10. THe Case was Curson acknowledged a Statute to Alderman Starkey and afterwards acknowledged another to Hampdem which was assigned to the Queen Afterwards the Lands of Curson were extended for Starkey and a Liberate thereof It was holden by the Court That the same was a good Execution and that the Queen should not avoid it But if the Land had been extended at the suit of the Queen then the Execution of the Queen should hold place although it were a Statute of a puisne date And by Clark Baron If a Recognizance acknowledged by a Subject be assigned to the Queen It hath been a Question If all the Lands of the Conusor shall be extended or but the moyety as it shall be at the suit of the Conusee himself It was holden That all the Lands should be extended CCCXXXII The Lord Gray's Case Trin. 32 Eliz. In the Exchequer THe Lord Gray Tenant of the King of Lands holden in Capite by Licence of the King made a Feoffment of the Lands in Fee and afterwards levied a Fine for further assurance And upon Process the party came into the Court and shewed this matter And the party was advised by the Court to aver That the said Fine was for further assurance And then upon such averment he should be discharged without any Pardon sued forth for the Fine c. CCCXXXIII Sir Walter Waller's Case Trin. 32 Eliz. In the Exchequer IN Sir Walter Waller's Case It was holden in the Court of Exchequer That a Debt of Record as upon a Iudgment c. could not be attached by the Custom of London 1 Len. 29. And so it was holden in the Case of Sir John Perrot in the Common Pleas. 4 Len. 44. And it was said by Cook That such a debt could not be assigned upon the Statute of Bankrupts CCCXXXIV Sir Brian Tucke's Case Mich. 32 Eliz. In the Exchequer IN this Case It was holden by all the Barons clearly Office of Executors 232. Roll. 920. Savile 40. That the Executor of an Executor should not be charged with a Devastavit made by the Executor of the first Testator no not in the Case of the King because it is a personal wrong only CCCXXXV Fines and the Lord Dacre's Case Mich. 32 Eliz. In the Exchequer THe Case was Tenant in tail Post 261. 4 Len. 97. the Remainder of Lands in chief levyed a Fine of them without Licence of the King and if the Tenants of the Lord Dacres should be charged for the Fine was argued For the Case was That the Lord Dacres was Tenant in tail the Remainder in tail to Philip Fines And it was holden by all the Barons That the Tenants Lands should be discharged But it was holden That if the Conusor had any other Lands within England the Fine might be levyed
Regem quando potest intelligi duabus viis As if two be joyntly endebted to the King and the King pardons to one of them Omnia debita the same shall not extend to joynt-Debts but to those Debts of which he is only Debtor 40 E. 3. The King granted to a Subject the Fines and Amercements hominum suorum All which hold of him by Homage may be said homines suos and also his Villeins are homines suos but because the general words may be served the said Grant shall be taken to extend to his Villeins only So in our Case the general words may be served with Lands in possession and shall not extend to Lands in Reversion At another day the Case was argued by Popham Attorny General and he conceived That by the Lease made 2 Mar. both the former Leases as well that which was made by Henry the eighth as that which was made in Reversion by the Bishop of Bath and Wells are gone Lessee form term of years to begin at a day to come accepts a new Lease in possession which is to continue until the future Interest shall commence the future Interest is gone and in Barkings Case 2 Eliz. It was holden by Dyer and Brown that where Lessee for two years accepts a new Lease to begin two years after this new Interest of a term determines the present Interest For as the Lessor cannot contract with a Stranger for the Interest of a Term which is to have continuance during a former Term by the same reason when the first Termor will accept an Interest of a Term from his Lessor to begin at any time during his former Estate this new Interest determines the first So if one hath an Interest of a Term to begin at a day to come and he before the beginning of that Interest accepts a Lease for life his first Interest is gone The words of the Patent are All her Interest Lands and Tenements in the Parish of St. Cutbert in Wells and parcel of the possession of the late Priory of R. and if these general words will carry Lands in Reversion where other Lands in possession pass c. was the Question General words shall have a special understanding if the special Construction may agree with the proper signification and sense of the general words as the Case 2 H. 3 4. before cited and yet in the Case of a common person all manner of Debts were released thereby for that it shall be taken strongest against the party Also he conceived That the Lands in Reversion should pass as well as the Lands in possession And he said All former Leases of Record needed not to be recited c. but such Leases only which are made by the King For Subjects may have Leases of Record as by Fine Deed enrolled c. but such Leases need not to be recited For such Leases may determine without matter of Record as Surrender Re-entry c. and then to compel the King or the party to search for such Leases which might be so determined by any Act in pais should be as absurd as to compel him to search by what means and for what matter in pais such Leases are determined And he conceived That this Lease needed not to be recited which was made by King Henry the 8th For after the said Lease made the King granted the Reversion to the Bishop of Bath and Wells and his Successors and during the time that the said Land was to the Bishop It might be that the Lease was determined by matter in suit in pais by Surrender Forfeiture c. and then notwithstanding that the King obtained the Reversion after and will make a new Lease if he should be driven to recite the former Lease whereas perhaps it is determined by an Act in pais it should be very inconvenient Also here if any recital should be in the Case how might the party interested know such former Leases but by search and how long ought the party search for his search ought to have an end Non excrescere in infinitum tempus And in our Case the most equal time for search is the beginning of the last Title of the King and no further that is from the present time till the time of the Title of the King begins and in this Case the Title of the King doth begin from his repurchase from the Bishop and if the Law be such then here nothing is to be recited for no Lease is mean between the re-purchase and the new Lease For no Lease made before the re-purchase need to be recited For admit That King Henry the 3d had made a Lease of a Mannor for 500 years and afterwards granted the Reversion to an Abbot and afterwards the Mannor by suppression came again to the King and he will Grant a new Lease of the same such Lease shall be good without any recital of the Lease made by King Henry the 3d for such Lease might have been determined in the hands of the Abbot by Surrender or other matter in fact So King Edw. the 2d made a Gift in Tail and afterwards granted the Reversion to another the Grantee disseised the Tenant in Tail One who was Heir to the Grantee was attainted of Treason the Grantee died by which the Land came again to the King who made a new Patent of the same without recital of the Gift in Tail and the Patent holden good for the Cause aforesaid And in some Cases there needs no recital of Leases As if the King makes a Lease for years rendring Rent to his Receivor and for default of payment that his Estate shall cease Now if at the day the Lessee tendreth the Rent and the Receivor will not accept of it and afterwards it is found by Office that the Rent was not paid by which the Lease should be void yet he may traverse the Office and afterwards the King Grants this Rent to a Stranger there he needs not to recite the Lease for it appeareth by the Office That the same is void and yet in truth the Lease was in Esse c. and so a Lease of Record in Esse in some Case needs not to be recited So if the King Lease for years to J.S. and he assigns his Interest over and afterwards Surrenders the same to the King Now if the King will make a new Grant of it he need not recite that Lease for the Surrender of it appeareth of Record and the Assignment of it is but matter in fait which cannot be known by any search So on the other side void Leases which are not in Esse shall be cited until it appear as in the Case of Throgmorton cited before by Egerton And in such Case where the Queen granted the same to Sir T.H. the Grant ought to be in possession and not in Reversion because then void for the King had not a Reversion Also this Lease ought not to be recited for the second Patent is granted to
the first Lessee and so by acceptance of this new Lease the first Lease is determined And now we are to see if the things in the former Grant are necessary to be recited the Estate in the Land and the Tenant not necessary The Reservation Condition Covenant and the Date The reason wherefore the Estate ought to be recited is to this purpose that the King might know and be enformed how far the Land is encumbred with other Estates c. but that reason is of no effect in our Case when the second Patent is made to the first Lessee for by the acceptance of the new Estate the first Interest is gone wherefore of that there needs no recital The second reason wherefore such former Lease ought to be recited is to the intent That the new Patentee may not have colour or countenance by reason of his Patent to do wrong to the first Patentee who hath the present possession by disturbing of him by Entry or Suit for all the truth of the matter appears in his own Letters Patents and the true Estate of the Tenant in possession But that reason hath not any force in our Case for the second Estate is made to him who hath the former Estate The reason wherefore the present Tenant ought to be mentioned in the second Letters Patents is so as the Queen may be ascertained what manner of person he is who is the present possessor for it may be he is such to whom the Queen hath given such Estate upon special favour for his good Service and in recompence thereof and that she will not disgrace the party so much as to give his Farm to another over his head which might be much to the discomfort and prejudice of him in possession which the Queen peradventure would not do if she had full intelligence of it but rather advantage him with it and not let it to any other person But in our Case here there is not any such matter of mischief But it is good to consider what Tenant ought to be specified in the Recital Assuredly the most sure way is the Patentee himself to whom the Lease was originally made although he be dead or hath assigned his Interest over For it may be dangerous to rely upon the Tenant who hath the possession for it may be that another hath the Interest although he hath the possession and then the recital is false wherefore it is best to say by way of recital Cum dimisimus c. And as to the Land the same also ought to be recited by the same name in such form and by the same words as it was granted before in the former Grant and yet if the name was mis-recited in the former Grant it ought not to be so in the second As if the King Grant the Mannor of Little-Court by the name of the Mannor of Litt-cote or the Mannor of Wellington by the name of the Mannor of Welton the same is good by the Statute But if a new Grant is to be made of the same in which the first Grant is to be recited now the former mis-recital shall not be put in ure but the very name but in this special manner that is where the King hath demised the Mannor of Little-cote by the name of the Mannor of Litt-cote c. So where a Mannor is known by two names and the Queen leaseth the same by one of the said Names and afterwards Grants the same by the other name The Recital ought to be That whereas the Queen hath demised the Mannor of D. by the name of the Mannor of S. c. And as to the recital of the Estate the Habendum in the first Patent ought to be recited and all that which preceeds the Reddendum for in that the Estate is fully contained But here in our Case such recitals are not necessary for it is impertinent to make recital of the same which is determined eo instante that the new Patent is made and that by reason of a matter precedent although that all be done eodem instanti and as to an Instant the same is not to be considered in Law as it is in Logick as a point of time and no parcel of time But in our Law things which are to be done in an instant have in consideration of law a priority of time in them As Lessee for life makes a Lease for years they both Surrender to him in the Reversion the same Surrender which is made in an instant shall in Law be understood to have degrees The Surrender of Lessee for years to the Tenant for life and then the Surrender of Tenant for life So in our Case the determination of the first Lease shall be first 1 E. 3. 6. The Tenant took the Seignioresse to Wife had Issue the Wife died the Husband shall not be Tenant by the Curtesie for although the Seigniory was in him at the time of the Marriage yet by priority in Law it ceased so as no seisin of the Seigniory was during the Coverture So in our Case eo instante that this new Patent is made the first Estate is determined yet in construction of Law the Surrender shall be said precedent and then the said Estate needs not to be recited For if there had been an express Surrender in fact there had not been any doubt that recital was not necessary Ergo neither in the Case of a Surrender in Law. As to that which hath been Objected That the Grant of the Queen cannot enure to two Intents scil to make a Surrender and also to make a new Lease The same Rule is true where both Intents enure and work against the King But whereas the one Intent serves and works for the benefit of the King it is otherwise As in our Case This Surrender is for the benefit of the King therefore it shall be taken c. as 6 H. 8. The King Grants Land to another durante beneplacito and afterwards the same Patentee purchaseth a new Estate from the King here needs not any recital of the former for the second Estate is made to the first Patentee and the first Estate is determined by the acceptance of the second 3 Eliz. The Case of the Earl of Arrundel was this The Lord John Gray being Lessee for years of a House called Hull-rake of the Lease of the Queen afterwards took a Grant from the Queen of the Custody of the same Messuage with a Fee for it and that was without recital of the former Lease and the Grant holden good and yet it did enure to two Intents to a Surrender of the Lease and a Grant of the Custody but both the Intents were not against the Queen for the Surrender was for Her benefit As to the Lease made 13 Eliz. it is utterly void for mis-reciting of the date of the former Lease made 2 Mar. for the very date of the said Lease was the 11th of May and in the Recital it is the 21 of May. For
although the date is not necessary to be recited yet here as this Case is the same ought to be truly recited For the Surrender of the said Estate which passeth by it is the Consideration of the new Grant then if the same be false the Patent is void for it was made by reason of that for there is a more ample Lease recited than in truth it is by ten days And so the Consideration scil the Surrender not so beneficial as the Queen expected also this new Patent doth contain in it self a Grant of such Lands as were demised formerly by Letters Patents dated 21 of May scil Omnia praemissa in forma praedict dimissa and nothing was demised in forma praedict scil by Patent bearing such date Ergo nothing passed by the later Patent For the Patent of 13 Eliz. is in consideration of a Surrender of a Lease made and bearing date 21 of May whereas no such Lease was and then no Surrender and then no Consideration Also here the Consideration is false for the Lessee who is supposed to have surrendred his Lease before the same Surrender assigned parcel of his Term to one Hagget and afterwards purchased a new Lease in consideration of the Surrender of the former and of his full Interest in it whereas he had not the whole Interest and so this false consideration destroys the whole Grant. For in all Cases where the considerations are real and savour of the Land or extend to such a real thing if it be false it destroys the Patent But where the consideration is personal as in consideration of Mony paid or for Service done although it be false yet the Patent may be good So here forasmuch as the consideration is real in respect of this Surrender and is false as appears before the Patent is void And as to this point there is not any difference between Consideration and Suggestion for if it be real and false the Patent is void contrary where personal But in some Cases where the Letters Patents are Ex certa scientia c. such falsity in the reality shall not hurt Which see 18 Eliz. Dyer 352. So the Case between Manxel and Turvil where Lessee for years his Lease being expired supposing that he had twenty years of his Lease not entred in consideration of such Interest took a Patent de novo the same was void So Owens Case Terril being Lessee for years of the Parsonage of P. in the County of Sommerset of the Grant of the King for certain years In consideration of his said Interest obtained a Grant of the Queen of Lands in Wales whereas in truth he had before assigned his Interest in the said Parsonage to another and it was adjudged That the said Grant of Lands in Wales was void for the Consideration was void and so the Consideration being real was false And in some Cases a Consideration personal if it be false shall destroy the Patent if it be future and executory as if the King Grants Lands to J.S. ea intentione that he shall pay to J.D. 10 l. Now if he do not pay it the Patent is void and the Estate given by it void also It hath been Objected by Godfrey That by this Surrender the Patent was cancelled and so the parcel of the Term which was assigned to Hagget was defeated and avoided forasmuch as the Original Letters Patents out of which the Estate of Hagget was derived are cancelled and so there is a good Surrender and then the Consideration is true especially forasmuch as Hagget being Assignee but of parcel of the Term cannot have a Constat by the Statute of 4 E. 6. As to that I conceive That the Assignee of part of the Interest may have a Constat by that Statute notwithstanding the Surrender of the Letters Patents and the cancelling of them and for that matter the difference is If the Roll remains a Constat may be although that the Patent be cancelled See Brook Patents 89. 32 H. 8. If a Vacat be entred upon the Roll then no Constat can be afterwards and therefore in Sydnies Case the Assignee could not have a Constat because there was a Vacat entred upon the Roll. But a Constat had before any Vacat entred upon the Roll such a Constat is good notwithstanding the Vacat afterwards And it doth not appear that any Vacat is entred upon the Roll so for any thing that appears Hagget may have a Constat and then his Interest is saved to him and then the Surrender is void and the Consideration false and although there be other Considerations in the Letters Patents which are true and good yet that shall not help the matter For if any part of the Consideration be false the Patent is void in all and so it was holden in Manxell's Case cited before and so be prayed Iudgment for the Plaintiff Egerton Sollicitor to the contrary Where the words ex certa scientia are not put in Letters Patents they shall be intended to be made at the suggestion of the Patentee and so the Grant shall be taken beneficially for the King and strictly against the Patentee But where such words are put in the Letters Patents there the Grant shall be taken beneficially for the Subject These words Ex speciali gratia imply the bounty of the King certa scientia excludes all ignorance and mero motu shew the voluntary and liberal benevolence of the King without suit of the party and where the words in such Letters Patents are general they shall be construed liberally for the Subject but with limits and bounds that nothing pass in such case but such things which are aptly signified by such special words as to pass two things where the meaning of the King was to pass but one And if the Patent be conceived utroque modo tam ex certa scientia c. as upon the suggestion of the party If the Suggestion be in any part false the whole Patent is void for the Suggestion extenuates the force of the other words Juris forensis est si quid falsis precibus obtentum acquirenti non proderit and to that purpose he cited the Case 18 Eliz. Dyer 352. before cited And he conceived That the Lease made by Queen Mary is utterly void 1. Because the first Lease of Record is not recited 2. If the same shall be good the Queen should accept a Surrender where she knew not of it and so the Patent should enure to divers Intents 3. This Lease is made by general words that is Of all the Lands in the Parish of St. Cuthberts For these general words may be well satisfied with the Lands which the King hath in possession and therefore they shall not extend to the Lands which are now in Question of which the Queen at the time of the Grant had but a Reversion and first I conceive That general words without any restraint or limitation will pass nothing As if the King pardons all
Demands or Grants Omnia terras tenementa sua But general words qualified with a restraint where the Limitations are effectual As if the King Grants Omnia terras tenementa sua in D. which he hath by the Attainder of J.S. or which were the possessions of such dissolved Monasteries such Grants are good And where the Case is That Queen Mary hath the Lands in possession of the annual value of 19 l. and other Land there in Reversion of the annual value of 6 l. and then she Grants Omnia terras tenementa nostra rendring 19 l. per annum I conceive That upon these words the Land in possession only passeth because that the said general words may be aptly served and satisfied with the Lands in possession if no other Lands pass And I agree That this word Nostra extends as well to the Lands in Reversion as to Lands in possession but most properly to Lands in possession for Land in Reversion cannot dici simpliciter Nostra but quodam modo tanquam terra revertens and not to take the natural profits of it for the Termor hath such properly that he shall have an Action of Trespass Quare clausum fregit But the intent and meaning of the Queen is to be regarded and that is the surest way to have right intelligence of the Grants of the King For here the Queen hath reserved but 19 l. Rent which is the proper and ancient Rent of the Lands in possession and if Lands in Reversion should also pass the Rent of which was 6 l. per annum then upon the whole Grant but 19 l. being reserved the Queen should lose 6 l. per annum of her ancient Rent which should be contrary to the intent and meaning of the Queen and the intent of the Grantor even in the Case of a Subject shall direct the construction of Grants As 9 H. 6. Br. Grants 5 by Babington A Man grants Common in his whole Lands he shall not have Common in his Orchards Gardens or Meadows for such was the meaning of the Grantor a fortiori in the Case of the King. It hath been argued That the former Lease ought not to be recited because that after the first Lease made by King Henry the 8th the Inheritance hath been in a Subject that is the Bishop of Bath and Wells but the same is not so For if the King makes a Lease for years and afterwards Grants the Reversion upon Condition which after is broken and so found by Office by which the Reversion is reduced to the King If now the King will make a new Lease he ought to recite the former Estate notwithstanding the mean grant of the Reversion or else such second Lease is void Another matter hath been Objected wherefore the former Lease ought not to be recited and that is because it is determined by surrender in Law before that the new Lease takes effect Sir the same is not so for the former Lease is in being as the Case betwixt Fulmerston and Steward 1 Mar. Plow Com. 106. upon the Statute of Monasteries 31 H. 8. See the words of the Statute whereof and wherein any Estate or Interest for years at the time of the making of any such Lease had his being or continuance And an Abbot made such a Lease to one who had a term for years of a former Grant although here be a Surrender yet this Case is within the said Statute and the said former Lease shall be said to have his being at the time of the making of the later Lease and the Surrender shall not be said so to preceed the making of the Lease but that the former Lease shall be said in Esse at the time of the making of the later Lease And in our Case it shall not be taken for any Surrender for then the Queen shall lose 6 l. of her ancient Rent and Revenue and always when the Title of the King and of the Subject concur the Title of the King shall be preferred as 43 E. 3. The King Lord Mesne and Tenant The Tenant pays his Rent at the day to the Mesne before Noon and then the same day before Night the Mesne dieth his Heir within age the King shall be paid the Rent again for here the Title of the King and the Subject concur together at one time and in that the King shall be preferred and so he prayed Iudgment for the Defendant And afterwards at another day the Iustices declared their Opinions and by Wray Chief Iustice We all agree That the first Lease ought to be recited and the reason which hath been urged against that point hath reduced us to be of that Opinion scil That the second Lease was made to the first Patentee and the King doth not make the recital but the party ought to inform the King of all former Estates of the said Lands and that he might well do for he is well knowing of them and although that the Reversion after the first Lease made hath been conveyed to a Subject the same is not material here forasmuch as the second Estate is made to him who had the first Estate and might know whether the first Estate were determined or not Also by the re-purchase the King is in Statu quo prius Gawdy Iustice although that the former Term be drowned by the taking of the second Lease yet it was in being at the time of the taking of it as it is holden by Bromley in the Case of Fulmerston and Steward It is determined by the second Lease and yet it was in being at the time of the making of it Fenner Iustice to the same intent Clench Iustice If the Grant of the Queen shall enure to two intents then the Queen should lose 6 l. per annum of her ancient Revenue It was agreed by all the Iustices That the general words in as much as they are restrained to a certainty would pass the thing si caetera essent paria contrary if they had remained in the generalty and afterwards Iudgment was given Quod querens nihil Capiat per Billam CCCXXXVIII Trin. 32 Eliz. In the Common Pleas. 4 Len. 233. A Man 30 Eliz. made a Feoffment in Fee to the use of himself for life and afterwards to the use of his Son and his Heirs The Father and the Feoffees before issue for Mony by Deed granted and enfeoffed J.S. and his Heirs who hath not notice of the first use The Tenant for life hath issue and dieth the issue entreth Glanvil the use limited to the first Son is destroyed for without regress of the Feoffees it cannot rise and it is gone by their Livery See the Case in Plowden 349. and also he vouched the Case of the Earl of Kent where by the Release of the surviving Feoffee 2 Roll. 797. Plow 347. a Sleeping-Vse was destroyed and could not after be revived Harris the use may rise without entries of the Feoffees and he put a difference between an
the Plaintiff That the Grant was before the Lease It was holden by the Court That this Release was meerly void for here was not any Interest to be released but a power to present and an Authority annexed to the person And afterwards by the Award of the Court the Writ was abated See 11 Eliz. Dyer 253. CCCXLI Woodward and Bagg's Case Hill. 32 Eliz. In the Kings Bench. WOodward Libelled in the Spiritual Court against Bagg and Nelson for Tythes of certain Lands called Christen Hill. Roll. 63. 2 Len. 29. 3 Cro. 188. Owen Rep. 103. The Defendant sued a Prohibition and surmised That one Pretiman was seised of the said Land and in Consideration of 5 l. by him paid to the said Parson It was agreed betwixt them That the said Pretiman and his Assigns should be discharged of Tythes of the Land during his life and afterwards the said Pretiman leased the same to the Defendants upon which a Prohibition was granted And it was holden That the party need not to make proof thereof within 6 Months for it is not within the Statute because a Composition with the same Parson But now a Consultation was granted because the Agreement is shewed but no Deed of it which cannot be any discharge But if it had been for a time scil unica vice it had been good but for life not Also it is not an express grant of the Tythes but only a Covenant and Agreement that he shall be discharged upon which he may have an Action of Covenant but not a Prohibition It was said on the other side That although without Deed Tythes cannot pass in point of Interest yet by way of discharge they might Cook It was holden betwixt Pendleton and Green That upon such words of Covenant and Agreement the party should hold the Land discharged of Tythes which was denyed For if the Grantee of a Rent Charge will grant it to the Tenant of the Land the same without Deed is not good And there was very lately a Case between Westbede and Pepper Where it was agreed betwixt the Parson and one of his Parish That for 20 s. Rent by the year the Parishioner should be discharged of Tythes for 20 years if he so long lived And it was holden That no Prohibition should lie upon it a fortiori where the Estate is for life Gawdy In the Case of grant of Tythes for life a Deed is requisite but here it is noâ— but a Contract for Mony c. See 21 H 6. 43. Wray If it had been for years it had been good enough but here is not any Contract but only a discharge for life which cannot be during his life without Deed. And afterwards the Record was read which was That Concordatum aggreatum fuit between the parties pro omnibus decimis during the time that the one should be Parson and the other Occupier of the said Land That in Consideration of 5 l. the said Pretiman and his Assigns should hold the said Land discharged of Tythes Wray The same is no Contract but a Promise for he doth not grant any Tythes Afterwards a Consultation was awarded CCCXLII Sanderson and Ekins's Case Mich. 32 Eliz. In the Common Pleas. IN Debt upon a Loan by Sanderson against Ekins who waged his Law and at the day being ready to wage his Law the Court examined him And upon examination it appeared That the Plaintiff and Defendant were reciprocally endebted the one to the other And upon Conference betwixt them before the Action brought there was an Accord betwixt them That the Plaintiff should give to the Defendant such a sum which he had done and that the one should go quit against the other And it was the clear Opinion of the whole Court That upon the matter the Defendant could not wage his Law for a Debt cannot be extinguished by word CCCXLIII The Dean and Chapter of Windsors Case Mich. 32 Eliz. In the Exchequer IN this Case It was moved If he who hath a Rectory impropriate 1 Len. 146. and by the Statute of 26 H. 8. is to pay an Annual Rent for the same in the name of a Tenth and thereby is discharged of all First-fruits and Tenths shall have the Priviledge of the Exchequer for he is to pay the same sum yearly And it was the Opinion of the Barons That he should not For so every one who is to pay any Tenths or First-fruits should draw other who have sued him into the Exchequer And so all Controversies concerning Tythes and Parsonages should be drawn thither which should be a great prejudice to the Spiritual Courts But Egerton Solicitor vouched a Case viz. Coniers's Case The King gave a Parsonage to a Priory in Frankalmoign and the Tythes thereof being withdrawn The Prior impleaded him who withdrew the Tythes in the Exchequer And it was holden That the Prior should have the Priviledge for the King is endangered to lose his Patronage or rather his Foundership if the Rectory be evicted Gent Baron The Kings Tenant in Chief or he who pays First-fruits or he who holds of the Queen in Fee-Farm shall not have in such respect the Priviledge here CCCXLIV Sledd's Case Mich. 32 Eliz. In the Kings Bench. SLedd of Great Melton in the County of Oxon 2 Len. 146. was assessed to 7 s. for a Fifteenth And upon refual to pay the same the Collector distrained the Beasts of Sledd and sold them Thereupon Sledd brought Trespass against him the in the Kings Bench. And the Collector exhibited a Bill against Sledd Who shewed by his Counsel That the Statute of 29 Eliz. which enacted this Fifteenth Provides That the said Fifteenth shall be levied of the moveable Goods Chattels and other things usual to such Fifteenths and Tenths to be Contributory and chargeable And shewed further That his Beasts distrained fuerunt tempore districtionis upon the Glebe-Land of a Parsonage presentative which he had in Lease which Glebe-Land is not chargeable usually to Fifteenths granted by the Temporalty nor the Cattel upon it It was the Opinion of the Iustices That although the Parson himself shall pay Tenths to the King yet the Lay-Farmor shall pay Fifteenths and his Cattel are distrainable for the same upon the glebe-Glebe-Lands of the Parsonage And therefore it was awarded That the Distress and the Sale were lawful CCCXLV. Sir Walter Water's Case Pasch 32 Eliz. In the Exchequer IT was moved in this Case 2 Len. 77. 4 Len. 44. That if one hath a Iudgment in Debt and upon the same within the year sueth forth a Capias ad satisfaciendum although that he doth not prosecute it by the space of 2 or 3 years yet when he pleaseth he may proceed upon it and shall not be put to a Scire facias And of that Opinion was Philips Manwood I grant That if one hath sued forth a Writ of Execution and the same be continued by Vicecomes non misit Breve for 2 or 3 years yet the Plaintiff may proceed upon
Eliz. Leon. 166. Lib. 1. was this Term adjudged upon the Devise That the Survivour shall be each others Heir It was holden That all the surviving Brothers are Ioynt-Tenants and although this word Survivour be in the singular number yet in sense upon the whole matter it shall be taken and construed as for the plural number Survivour shall be each others Heir i. e each Survivour i.e. every Survivour i.e. All the Survivours and then in this case The Plaintiff and the Defendant being Ioynt-Tenants cannot maintain an Action of Trespass one against the other CCCLIII Mich. 32 Eliz. In the Common Pleas. BY the Statute of 32 H. 8. cap. 37. The Executors of a Grantee of a Rent-Charge may distrain for the Arrearages of the said Rent in the life of the Testator so long as the Land charged doth continue in the seisin or possession of the Tenant in Demesne who ought immediately to have paid the said Rent or in the seisin of any other person or persons claiming the said Lands only by and from the said Tenant by purchase gift or descent in like manner as the Testator might or ought to have done in his life-time It was now moved If A. grant a Rent-charge to B. the Rent is behind B. dieth A. enfeoffeth C. in Fee who divers years after enfeoffeth D. who divers years after enfeoffeth E. It was holden in this Case by Walmesley Periam and Windham Iustices That E. should be chargeable with the Arrearages to the Executors Anderson Chief Iustice held the contrary But they all agreed That the Lord by Escheat Tenant in Dower or by the Curtesie should not be chargeable for they did not claim by the Party only but also by the Law. CCCLIV. Leverett and Townsend's Case Trin. 32 Eliz. In the Kings Bench. IN an Action upon the Case for disturbing him of hs Common 3 Cro. 198. 2 Len. 184. The Plaintiff declared That he was seised in Fee of a Messuage and certain Lands And that he and all those whose Estate he hath have Common of Pasture in 16 Acres of Lands called D. from the time that the Corn is reaped until it be sowen again And also Common of Pasture in Land called R. omni tempore anni as appendant to the said Messuage and Land and that the Defendant had plowed the said Lands and so disturbed him of his Common It was moved in stay of Iudgment That it appeareth here that the Plaintiff was seised in Fee and so he ought to have an Assise and not an Action upon the Case But the Exception was disallowed by the Court. Vide inde Ante 13. 2 H. 4. 11. 8 Eliz. Dyer 250. 11 R. 2. Tit. Action upon the Case 36. CCCLV. The Chamberlain of London's Case Mich. 33 Eliz. In the Kings Bench. THE Chamberlain of London brought an Action of Debt in the Mayors Court in Guild-hall 5 Co. grounded upon an Act of Common Council See C. 5 Part The matter was removed into the Kings Bench by Corpus cum causa Fleetwood Recorder of London prayed a Procedendo It was Objected That they of London could not make Ordinances to bind the Subjects as an Act of Parliament To which It was said by Fleetwood That the Custom of the City is That the Mayor and Aldermen and four persons chosen out of each Ward by the Communalty may make Ordinances which they call Acts of Common Council and they shall bind every Citizen and Free-man and all their Customs are confirmed by Act of Parliament and by Magna Charta which hath been confirmed 52 times and also by the Statute of 7 R. 2. For that King seised their Liberties and drove them to pay for the Redemption of them 100000 Marks and then the said King confirmed them unto them for ever and therefore this Ordinance being made according to our Custom ought not to be impeached As in Case of matters of the Forrest If one be punished for offending against an Ordinance made for the governing of the Affairs of the Forrest you cannot remove the matter before you So is the Law called Lex Idumaea concerning Rivers and Fishing in which are divers Ordinances That none shall kill Salmons at certain Seasons of the year and so of other Fishes If one be punished by force of such Law he shall not be relieved here for the Law of the Land hath always allowed such particular Customs And see F. B. If two Merchants put their Stocks together and so Traffick together and the one dieth The Survivor shall not have the whole Stock as the Common Law is but the Executor of him that dieth shall have an Accompt against the other and that is per Legem mercatoriam Cook to the same intent This Act of Common Council is good and according to the Law that is of Common Right There are divers Statutes made for the true making of Cloth and to take away the abuses and deceit in the making of it and this Act of Common Council is for the well executing of the said Statutes and I conceive there is a difference in making of Laws by a Corporation A Corporation may make an Act for the better executing of any Law established at the Common Law but new Laws they cannot make As those of a Town who have used to have Common in certain Lands they cannot make a By-Law That such a one in such a Town shall not have Common there but that none shall use his Common but at such a time such a By-Law made is good See 15 H. 7. 21 H. 7. 40. See 8 E. 2. tit Assise 413. A Town had Common of Turbary in a Marsh and divers of the Inhabitants of the Town had made Trenches in the said Marsh and some had not a full Foot of Land in the Town and such persons by their Trenches which they had made there used to carry Turffs out of the said Marsh by Boats and sell them unto the value of 20 Marks per annum to their great private profit and to the great grievance of the others For which cause It was provided by common assent of the Freeholders of the Lord of the said Town That all the Trenches in the said Marsh should be stopped so as from thenceforth no Turffs be carried in Boats by the Trenches And there it was holden That if the greater part of the Commoners assent the same shall bind the others who have not assented for ubi major pars ibi totum And then if such Towns may make Laws a fortiori The City of London Secondly This Law is good by Custom for they have used to make such Acts and Ordinances time out of mind c. and these Customs are confirmed by Act of Parliament and also they may appoint a penalty for to what purpose otherwise should they make an Act Oderunt peccare mali formidine poenae Also this Action is maintainable for an Amercement in a Court Baron an Action of Debt lieth Gawdy Iustice 44 E. 3. 19.
1 And. 234. every one ought to assent Wray There the Ordinance made was to charge the Inheritance but here it is only to charge their Goods wherefore the assent of the greater part is sufficient And afterwards a Procedendo was granted CCCLV. Pendleton and Green's Case Mich. 33 Eliz. In the Kings Bench. PEndleton sued Green in the Spiritual Court for Tythes Ante 203. 1 Len. 94. who pleaded That Pendleton was not lawful Incumbent but one Taylor and that plea those of the Spiritual Court would not allow to the Parishioner to plead to the right of the Incumbency and thereupon he prayed a Prohibition for otherwise he should be twice charged for Tythes and therefore a Prohibition was granted CCCLVII Knevytt and Cope's Case Mich. 33 Eliz. In the Kings Bench. KNevytt brought Ejectione firmae against Cope and declared Quod 4 Len. 59. cum John Hopkins by his Indenture bearing date the 20 of May 32 Eliz. had let to him his House and two yard-Yard-Lands containing 40 Acres of Land Meadow and Pasture apud Tythingham de Forecomb in parochia de S. c. upon Not guilty pleaded The Venire facias was de Tythingham de Forecomb Exception was taken by Cook That the Declaration had not any certainty for it is not shewed in certain How much there was of Meadow how much of Land and how much of Pasture there was contained in the said two Yard-Lands and the Iury may find the Defendant guilty as to the Land only but not to the residue Also he hath not shewed in the Declaration When the Lease was made but only saith That by Indenture bearing date the 20 of May c. but doth not shew any day of delivery of the Indenture for then the Lease takes effect To which Exception It was said by the Court That the Declaration as to that was good enough for it shall be intended to have been delivered at the day of the date Ante 193. Another Exception was taken to the Visne Because that the Visne ought to be of the Parish and not of Tythingham c. See 11 H. 7. 23 24. Forcible Entry in the Mannor of B. in B. the Visne shall not be of the Mannor of B. but of B. Gawdy Iustice You shall never have a Visne of the Parish for divers Towns may be in one Parish but here the Visne is good of Tythingham c. for it may be that it is a Town Cook It is but a Ville Conus from which a Visne cannot come CCCLVIII Taylor and Fisher's Case Mich. 33 Eliz. In the Kings Bench. TAylor brought an Action of Trespass against Fisher for entring into his House and taking and carrying away of his Goods To which the Defendant pleaded That before the Trespass supposed one A. was possessed of the said Goods and the said Goods being in the House of the said Plaintiff the said A. sold them to the Defendant by force whereof he was possessed And so possessed came to the Plaintiffs House where c. And by assent and licence of the Plaintiffs Wife he entred into the said House and carried away the said Goods c. Vpon which there was a Demurrer It was holden That the same is no plea for there is no Colour given to the Plaintiff and the licence given by the Wife is not any matter for the justifying of the Entry And as to the Goods the plea was holden good For if A. might sell them being in the House of another and not in his own possession is scrupulous to the Lay-people Wray If the Goods of the Defendant were in the House of the Plaintiff with the knowledge of the Defendant it had perhaps been a good plea but that is not alledged here Cook 30 E. 3. 23. In Trespass for breaking of his Pound the Defendant said That he came to the place where the Cattel were impounded and there found the Plaintiffs Wife to whom he offered Pledges for the Cattel impounded to make Amends according to reason and prayed to have deliverance of the Cattel and the Plaintiffs Wife delivered them without that that he brake the Pound c. And it was said That this want of Colour is but matter of form which he ought to have alledged upon his Demurrer or otherwise he shall not have advantage of it Wray Iustice The Defendant in his plea doth not meet with the Plaintiff Therefore the plea is not good in substance It was Adjourned CCCLIX Downhall and Catesby's Case Pasch 33 Eliz. In the Common Pleas. IN a Formedon by Downhall against Catesby 4 Len. 113. the parties were at Issue And it was tryed by Nisi prius It was moved in Banco because that some of the Iurors did eat and drink before that they gave their Verdict That the Court would not receive the Postea The Court said That we cannot do here for we do not know if your Information be false or not and that matter ought to have been examined by the Iustices of Nisi prius and they ought to certifie us of it and then we shall have good cause to stay it And it was then said there That if any of the Iurors eat and drink before the Verdict at their own Costs that the same doth not make the Verdict void but otherwise if it be of the Costs of the Plaintiff or the Defendant CCCLX Withrington and Delabar's Case Mich. 33 Eliz. In the Kings Bench. IN an Appeal of Murder by Withrington against Delabar of the death of her Husband The Defendant pleaded never accoupled in lawful Matrimony And pleaded over Not guilty The Plaintiff replyed Lawfully accoupled but did not reply over to the Felony It way moved as a discontinuance of the whole Wray If the Defendant pleads matter tryable at the Common Law and over to the Felony there the Plaintiff ought to reply to both but where the first matter is not tryable by the Common Law there the same is not needful Quod caeteri Justiciarii concesserunt CCCLXI. Lake's Case Mich. 33 Eliz. In the Kings Bench. STephen Lake Commissary of the Bishop of Canterbury Fr. Alredge Register and R. Hunt Apparitor were endicted of Extortion that they colore officiorum suorum had malitiose accepted and received 11 s. 6 d. for the Absolution of one B. who was excommunicated where they ought to have but 2 s. 6 d. And Exception was taken to this Indictment because that all their Offences are put together scil colore Officiorum suorum whereas the particular Offence of every Offendor ought to be specially set down but here they are confounded Which see by the Statute of 25 E. 3. 9. That Ordinaries shall not be impeached by such general Indictments unless they say and put in certain In what thing and of what and in what manner the said Ordinaries have committed Extortion But that Exception was not allowed for of that the party grieved cannot have notice for they took in gross and afterwards parted it betwixt
where shall be good where not p. 147 Of intrusion where there is no Record to prove it if the error lieth upon it p. 147 Issues joyned A not joyning in it is helped by the Statute of Jeofails not a mis-joyning in it p. 66 Upon a Plea which is tryed in a foreign County and found for the Plaintiff in what Court the Judgment shall be p. 137 Jure Patronatus Where the awarding of it is necessary where not p. 98 Jurors Where upon pain of Attaint they are to take notice of a transient thing done in another County p. 77 K. KING Not bound to take notice of a Condition made by a common person p. 126 Cannot take an interest in Land without matter of Record p. 155 L. LAchess In pleading where it shall turn to the prejudice of the Parties p. 63 Leases For certain years habendum to his Executors if good and what interest passeth and to whom it passeth p. 32 Power to make Leases not to extend to Leases to be made in reversion p. 132 Where Leases are void by the Statute of 31 H. 8. of Monasteries p. 164 Made by Dean and Chapter where void by the misrecital of their name of Corporation p. 220 Livery Of Lands in Ward not to be sued by parcels p. 25 M. MAintenance Where a Grant made shall be said to be for maintenance within the Statute of 32 H. 8. p. 79 Misnosmer Where shall not prejudice a Devise p. 19 N. NOnsuit If after a Demurrer p. 28 O. OBligation By what words good by what not p. 19 Where the word Quemlibet in an Obligation shall make it joynt and not several p. 206 Taken by one Blacksmith of another Blacksmith that he shall not exercise his Trade in such a Town void p. 207 To be good although not made after the usual form p. 223 May be assigned to the King without Deed enrolled p. 234 Office Trove Personal things are in the King without Office found p. 145 Where an Estate shall be setled in the King without Office found where not p. 186 187 188 Outlawry Where a Man is to annul an Outlawry his person shall not be disabled by another Outlawry p. 232 P. PArtition The Writ was Quare teneant Quatuor mille acras where it ought to be 4 Mille acrarum yet good p. 94 Where it is not necessary to shew and settle forth the Estate particularly in the Writ p. 231 Petition Where an Entry is not lawful upon the King without suing a Petition p. 15 Plenarty Returned by the Bishop where not good p. 138 Pleadings and Pleas Where not good for incertainty p. 8 A Conveyance cannot be pleaded unless it be sealed p. 94 Of Non Damnificatus generally where good p. 118 In a Writ of Right upon a Custom to hold a Court of the Plea must be shewed before whom the Plea is to be holden by the Customs p. 148 Of Letters Patents and not saying Sigillo Angliae sigillat not good p. 193 Of the general Issue in Wast viz. Null wast fait where dangerous p. 203 Of Outlawry in the Plaintiff after Imparlance in Trover and Conversion good p. 215 Praemunire Where the not prosecuting of it by the Attorny-General shall take away the suit of the Informer p. 139 Prescription Of every Inhabitant to have Common if good p. 202 Of what good and where and of what not p. 202 To have Estovers at liberty in cutting down Wood in a Forest unless in Fawning-time where good p. 218 Priviledge Of the Exchequer not granted to him who pays First-fruits and Tenths p. 258 Possibility Not allowed to the Kings servants in the Exchequer who is sued in B.R. p. 22 Not grantable or demiseable p. 157 Prohibition Not grantable upon a suggestion that Tythe had been paid to the Vicar c. and time out c. p. 203 Proviso Where a Condition where a Covenant where a Limitation p. 225 Q. QVo Warranto Of Liberty Plea in it what good what not p. 73 184 R. REcital The not recital of the names of the Occupiers of a Lease of Lands do not avoid the Demise thereof p. 235 Records A Deed acknowledged to the King and delivered to the Barons of the Exchequer is a Record though not mentioned p. 146 Of a Fine remaining with the Custos Brevium amended and made according to the Record made and remaining with the Chyrographers p. 183 Recusants Where Lands conveyed by a Recusant shall be subject to the Statute of 23 Eliz. concerning Recusants and the penalties thereof p. 148 Release To a Tenant at sufferance where not good p. 152 By the Feoffees of Cestuy que use to his Lessee for years how it shall enure p. 196 Receit By a Termor for years to save his Term Remitter p. 2 10 93 Rents Where upon a Fine levied of the Land the Rent passeth without Attornment p. 103 Payment of it upon an extent of it and of the reversion saves the danger of a Condition supposed to be broken p. 113 Where apportioned where not p. 125 126 Granted by Fine varyeth from the Indenture yet shall pass p. 136 Suspended yet grantable p. 154 Where it passeth by the name of a Mannor p 168 Reserved to be paid at two Feasts and not said by what portions the Lessee hath the liberty to pay it in what portions he pleaseth p 235 Repleader After Issue joyned where granted p. 90 Request Licet saepius requisitus good and where it must be special p. 73 206 S. SAle By an Enfant Executor of goods where binds him p. 144 Scire Facias Where it lyeth upon an Extent supposed to be satisfied p. 155 Where upon an Alienation of an Advowson without Licence by matter of Record not by matter of Fact p. 175 Statute Merchant and Staple Acknowledged when void by the death of the party p. 157 Surrender Of a Copyhold to uses p. 4 Cannot be of a Lease for years to begin at a day to come p. 95 Tenant for life remainder in Fee of a Copyhold he in the remainder may surrender in the life of the Tenant for life if there be no Custom to the contrary p. 259 T. TAil p. 87 Tender Of Rent how and where to be made p. 4 Tenancy In Common where must be pretended and not given in evidence p. 94 Traverse Where good where not p. 97 Trespass Quare clausum fregit not maintainable by him that hath but the Ear-grass after the first mowing p. 213 Tryal If Tythes lie in such a Parish or in such a Parish tryable at the Common Law p. 128 V. VAlue Of Lands what value shall be intended p. 114 Venire facias Where the place must be mentioned in it p. 171 172 Where from the place where from the Mannor p. 193 Upon every Original must contain the issue in it p. 269 Verdict Not good because too general p. 64 Not Good because it doth not extend to all the points of the Declaration p. 95 Given and found after a Supersedeas
Appendant or in gross A. 323. A Curtilage and Garden are Appurtenant to a House and pass by or without the word Appurtenant C. 214. Apportionment If the Lessor grant part of the Land the Grantee shall have no Rent A. 252. C. 1. Upon devise of Lands rendring Rent part being Capite Lands A. 310. If a Rent reserved upon a Lease of a Warren may be apportioned C. 1. None of a relief because intire C. 13. If a condition of Re-entry upon several Reddend may be apportioned C. 124 to 127. Rent may be apportioned in the Kings Case which cannot in the Case of a common person C. 124 to 127. Arbitrement Debt lieth upon it although void until it so appear A. 73 170. In such Action the Plaintiff needs shew no more than makes for him A. 73. To find sufficient Sureties to pay c. void A. 140. Without Deed cannot dispose of a Free-hold A. 228. To do one thing or another one being void yet the award is good A. 304 305. C. 62. To pay Mony to a Stranger is good A. 316. C. 62. That one Party shall have a Term for years gives the interest of the Term contra where it is that the one shall permit the other c. B. 104. Award to become bound it is a good performance if the Bond be delivered to a Stranger and after tendred to the Plaintiff B. 111 181. To do an Act to a Stranger who will not accept thereof the Bond is not forfeit C. 62. To do an Act to a Stranger not void C. 62. 212. Award that the Defendant and a Stranger become bound is good as to the Defendant though void in part C. 226. Ayd Copy-holder shall have Ayd of his Lord in Trespass A. 4. Grantee of Tenant in tail after possibility shall have Ayd yet the Grantor should not A. 291. Tenant at Will shall have it but not Tenant at Sufferance B. 47. Verdict upon an Issue upon a Counter-plea of Ayd is peremptory to the Defendant B. 52. Alien If the Kings Confirmation of a Feoffment to an Alien do avail A. 47. If the Grant of an Office to him by the King be a denization C. 243. Assent and Consent If the Conuzee of a Statute c. taken by Capias be discharged by Assent of the Conusee his Lands are also discharged A. 230 231. Assets Mony received by Executors for Lands devised to be sold to pay Portions if it be Assets A. 87 224 225. B. 119. What other things shall be Assets A. 225. B. 7. Lease for life and after his death to his Executors for 10 years if this Term be Assets C. 21 22. If Mony received by the Heir for Redemption of a Mortgage be Assets to pay Debts C. 32. Executors by Award receive 50 l. and release a Bond of 100 l. the whole 100 l. is Assets C. 53. Assignee If Assignee of parcel may have covenant against Lessee for years A. 251 252. Who is a sufficient Assignee A. 252. Executors or Administrators A. 316. Assize Of a Rent rendred in Fee by Fine A. 254. The manner of adjorning and giving Judgment where the Disseisor pleads Foreign Pleas B. 41. Of fresh-force in London C. 169 170. Attachment Of Goods in a Carriers hands 189. A Debt by Judgment Stat. Recogn c. cannot be attached A. 29 30. No Mony taken in Execution A. 264. What is a good Plea for him in whose hands Mony is attached A. 321. If the Plaintiff shall recover costs against him in whose hands c. A. 321. Mony for which an Action is depending cannot be attached C. 210. One cannot attach Mony for a Debt before the Debt be due C. 236. Corn is not attachable C. 236. A Debt upon Record cannot be attached C. 240. Attainder A person attainted cannot be charged with Actions A. 326 327. If a person attainted may be put to answer in personal Actions A. 330. What is forfeited to the King by Attainder of Tenant for life or in Tail in Remainder B. 122 123 to 126. Differences of Attainder and Conviction B. 161. If one attainted of Robbery shall answer in criminal Cases C. 220. Attaint What Heir shall have it A. 261. Upon the Statute of 23. H. 8. 3. A. 279. If it lie where the Plaintiff might avoid the Judgment by Error A. 278. Attornment To whom and how it must be made A. 58. Quoad part is good for all A. 129 130 234. Upon a Lease for years in Reversion A. 171. C. 17. An Abator may Attorn A. 234. The definition thereof A. 234. By the first Lessee binds the Tenant in remainder for years or life A. 265. Good by the Tenants of the Land to him in remainder after the death of Tenant for life A. 265 To the surviving Grantee of a Reversion good A. 265. To the Grantee of the Reversion of a Mannor by Lessee for year of the Mannor passes the Mannor and binds the Tenants A. 265. After condition broken is good to vest the Estate by the breach of the Condition A 265. The Relation of an Attornment A. 265. B 222. Who is compellable by a Quid Juris clamat to attorn A. 290 291 B. 40. C. 241 242. No Attornment is necessary upon selling a Reversion of Copyhold A. 297. C. 197. In what cases necessary A. 318. C. 103. Lease of Demesnes by Grant of the Mannor the Reversion passeth not without Attorment B. 221 222. An Advowson appendant to a Mannor shall vest without Attornment of the Tenants B. 222. What Words or Consent amount to an Attornment C. 17. Lessor levies a Fine to the use of himself and his Heirs Lessee must Attorn C. 103 104. If it be necessary where the Grantee is in by Statute of Uses C. 104. It is necessary to pass Services of a Mannor C. 193. Tenant of the Land must attorn upon granting over a Rent-charge C. 252. Reversion of a Term a Lease of part of the Term being first made cannot pass the Term and Rent reserved upon the first Lease without Attornment but a Term without Rent reserved he may C. 279. Lessor grants the Reversion to Lessee and A. B. no other Attornment necessary C. 279. Attorny J.S. Praesens hic in Cur. in propria persona sua per A.B. Attorn suum how construed A. 9. Lessee for years cannot surrender by Attorny A. 36. How to make a Deed by Attorny Ibid. B. 192 200. May essoign for a Copyholder but not do services A. 104. To three conjunctim divisim to deliver Seisin A. 192 193. How Attorny must make Livery where the Lands lie in several Counties A. 306 307. In an Indenture C. 16. Audita Querela Upon a Statute Merchant the Suit shall be in the Kings Bench But upon Statute-staple in the Chancery A. 140 141 228. contr 303 304. Process therein is either Venire facias or Scire facias A. 140 141. Upon a Statute Staple upon payment of the Mony in the Court of C. B. quod nota the party is bailed A.
rebuild B. 189. For saving harmless the Defendant must shew how he saved harmless B. 198. Difference where one is to do an act to a Stranger who refuses to accept it and where it is to be done to the Plaintiff who refuseth B. 222. If the words Yielding and Paying make a Condition C. 58. Provided that the Lessee shall not Grant the Land who devised the same to his Executor C. 67. To procure a Grant of the next Avoidandce so as the Plaintiff may present what is a breach C. 151. Upon a Condition to pay Corn the Obligor not bound to seek the Obligee if no place be appointed C. 260 261. Confirmation If one Chapter where there are two may confirm a Lease A. 234. What acceptance and by whom of Rent confirms the Lease of the Tenant A. 243. Tenant for life and he in remainder in Fee joyn in a Feoffment this is the Confirmation of him in remainder C. 10. Abbot and Covent Lease to J.S. at Will and after by Deed for life C. 15. Of a Dean and Chapter of a Bishops Lease in what time it must be made C. 17. Consideration in Assumpsit Assumpsit in cosideration the Defendant will prove such a thing c. when the proof is to be A. 93 94. Past and executed and yet continuing good to make a promise A. 102. B. 111. 224 225. That the Plaintiff will perform an Award the Defendant would perform it also good A. 102. To forbear a Suit in Chancery if good A. 114. B. 105. Of forbearance to sue the Execution of an Infant not good if the Debt were not due A. 114. B. 105. To stay a Suit in Court Christian good A. 118. In consideration of Goods delivered promised to pay the Debt due for them for if no sale no debt A. 157. If there be two if both must be found A. 173 300. B. 71 72. In consideration of the doing of an illegal Act A. 180. C. 208 236. To forbear a Suit ought to shew in what Court the Suit depended A. 180. In consideration of the Plaintiffs promise A. 180. B. 154. What is a good Consideration to make an Assumpsit A. 192 275 276 397. B. 29 30 C. 105 129. Not to execute a Fieri Facias upon Goods good though the Goods were not liable to the Execution A. 220 221. In Consideration the Obligor would pay the Mony the Obligee promised to deliver up his Bond quaere A. 238. Against the Wife of an Intestate in Consideration of forbearance not good unless she administers A. 240. In Consideration of the arrears of Rent-charge for life were unpaid good A. 293. If one of two Considerations be good and the other void yet the Action is maintainable A. 296 300. In Consideration the Plaintiff will assign his interest where he hath none at all B. 71. To forbear per Paululum tempus good C. 200. Where though the Consideration be past and executed being done at the Defendants request yet is good B. 111 224 225. C. 164 236. Ought to be matter of benefit to the Defendant C. 88. 129. Void Consideration per Stat. 23 H. 6. 10. being to let a Prisoner escape C. 208. Where there are two Considerations whereof one is void the whole is void C. 108. Copyhold and Copyholder Relieved by the Lord per Petition in a matter of equity A. 2. Where he shall do Fealty and have Aid of his Lord in Trespass c. and shall have an Ejectione Firme A. 4. How a person absent must make his surrender A. 36. If the Custom be to grant them in Fee it warrants a Grant for life A. 56. An Action in nature of a Dum fuit infra aetatem lies where an Infant surrenders A. 95. Where Statutes speak generally of Lands c. given to the King as forfeited Copyhold Lands are not intended A. 98 99. An Heir by descent may Lease or bring Trespass without any admittance A. 100. And also enter A. 174 175. C. 70. In pleading such Lease it need not be averred to be warranted by the Custom but must be challenged on the other part A. 100. An Heir within age not bound to tender his Fine while within age A. 100. Surrender to a Stranger for life remainder to the right Heirs of the Surrenderer the Heir is in by purchase Secus where an Estate is limitted to the Surrenderer himself A. 101. Surrender to the use of his right Heirs cannot vest during the Ancestors life A. 102. Lord sells and Copyholder releases the tenure is extinct A. 102. Release of a Copyholder to a Disseisor nihil operatur A. 102. What is a reasonable matter to excuse the Tenants not appearing at the Lords Court A. 104. To whom and where notice of a Court day must be given A. 104. Copyhold Estates may be entailed A. 174 175. Such Estate forfeited to the Lord and by him sold by Bill A. 191. Copyholder accepts a Lease of his Copyhold from the Lord this determines his customary Estate A. 170. What Steward may take Surrenders our of or in Court A. 227 228 288 289. Trespass lies by the Tenant against the Lord for cutting down Trees not being Timber A. 272. If the Lords agreement to avoid Admittance makes it good A. 289. A Court to admit Copyholders may be held out of the Mannor A. 289. The mis-entry of the day of holding the Court does not hurt the Copies but may be averred against A. 289 290. No Attornment necessary upon selling a Reversion of Copyhold Lands A. 297. If Tenant at will or sufferance may grant Copies B. 45 46 47. What Estates accepted by a Copyholder from the Lord does extinguish the customary Estate B. 72 73 208. Copyholders Estate not liable to a Rent-charge granted by the Lord B. 109. Secus of Demesnes grantable by Copy B. 153. C. 59. What refusal of a Copyholder to do his service pay his Rent or to make Presentments is a forfeiture of his Estate C. 108 109. What false Pleas Feoffments or Forgeries of Deeds is a forfeiture c. C. 108 109. He who disseiseth a Copyholder gains no Estate C. 221. No Escheat for want of an Heir until proclamation in Court C. 221. A Reversioner may surrender if no Custom to the contrary C. 239. Conspiracy If it lies if the Indictment were void A. 279. C. 140 141. Constable See False Imprison Iustification If he may imprison and how A. 327. Needs not dispute the legality of a Justices Warrant B. 84. May set one in Stocks for refusing to Watch C. 208 209. Continual Claim May be made though the Lands come to the hands of the King A. 191. What is a good Claim to avoid a Fine by the Statute of 4 H. 7. B. 53. Continuance Death of one Defendant after the Assises and before the Term cannot be pleaded for that the Defendant hath no day in Court to plead it C. 5. The difference between it and a dies datus silicet upon a dies datus and default thereupon
Executor shall sell who dies his Executor cannot sell B. 69. To the Heirs of the Body of his Eldest Son is void B. 70. I give my Lease to my Wife for life and then to my Children unpreferred B. 90. To the Heir in see is void and he is in by descent B. 101. C. 18. That his Executor shall pay a Debt this is no Legacy B. 119 120. Devise shall be taken according to the Common not Legal construction B. 120. C. 18 19. Devise of three Closes to three and if any die that the other shall have all his part to be divided between them B. 129. That A. shall pay yearly 10 l. out of a Mannor is a good Devise of the Mannor to A. B. 165. They shall be construed favourably but not against Law B. 165. If the Devisor be distrained and dies before re-entry nothing passeth B. 165. All his Lands called Jacks in the occupation of J S. what passes if not in the occupation of J.S. B. 226. Like Case C. 18 19 132. Of a Mannor to B. and of a third part thereof to C. they are joynt Tenants C. 11. Words in a Devise shall never be judged repugnant if by any rational Construction they may consist C. 11 28 29 Devise of Lands to his Wife for life and after that she may give them to whom she will C. 71. Lands called H. in two Vills A. and B. Devise of H. in A. for life remainder of Hayes Land to L. No Land passes in remainder but Lands in A. C. 77. To J. for thirty one years to pay Debts remainder after the Term expired to his Heirs Males and if he die within the Term that G. shall have it and be Executor J. dies his Issue enters G. evicts him C. 110. Devise that the eldest Son shall take the profits until the younger be of Age and the remainder to the younger Son the elder hath see conditional C. 216. Devise that his Feoffees to Uses shall be seised to other Uses who are accounted Feoffees C. 262. Diminution The manner of alledging it A. 22. With what time it must be alledged B. 3. Disceit Fine reversed by such a Writ because the Land is Ancient Demesne A. 290. C. 3 12 117 120. Not abated by death of one Defendant C. 3. Upon a Recovery in a Quare Impedit A. 293. The manner of proceeding therein A. 294. For an Infant against his Guardian who lost the Land by default in Dower B. 59. Where Estate of the Conusee remains after the Fine reversed C. 12 120. Whom it shall bind without summons C. 120. Discent Takes not away the entry of him who claims by Devise condition broken c. A. 210. B. 192. cont B. 147. Disclaimer He who hath disclaimed shall not have a Writ of Error C. 176. Discontinuance de Process c. Vide Continuance Discontinuance de Terre Remainder in fee after a Lease for life where not discontinued by Fine by the Tenant for life A. 40. B. 18 19. None of Copyholds A. 95. Nor upon a Covenant to stand seised made by Tenant in tail A. 110 111. By Feoffment of Tenant in tail A. 127. B. 18 19. Quid operatur if the Feoffees joyn in the Discontinuance B. 18 19. Lease for years by Cestuy que use pur vy is no Discontinuance but warranted by the Stat. of 32 H. 8. B. 46. None if the Reversion be in the King B. 157. C. 57. Nor by Bargain and Sale by Deed enrolled without Livery C. 16. Disseisin and Disseisor Where a Man shall be a Disseisor at the election of another A. 121. B. 9. If Tenant per auter vy hold over after the death of Custuy que vie if he be a Disseisor B. 45 46. The like if Tenant for years holds over B. 45 46. If the younger Brother enter if he be a Disseisor or Tenant at sufferance B. 48. If Disseisee may give licence to put in Cattle before Entry C. 144. He who Disseiseth a Copyholder gains no Estate C. 221. Disseisin to the use of Baron and Feme he only agrees the Estate vests in both but the Feme is no Disseisor C. 272. Distress Cannot distrain upon the Kings Lands A. 191. Where and who may distrein the Cattle of a Stranger though not Levant and Couchant where and who not B. 7. If one as Bailiff may say he takes a Distress for one cause and carry it away for another B. 196. Dower The Wife not Dowable if the Husband be attaint of Treason although pardoned A. 3. Of what age the Feme must be A. 53. Inquiry of Damages where the Baron died seised A. 56 92. In such an Inquiry the Jury may find above the value of the Dower A. 56. By Custom of Gavel-kind whether demandable as by Common Law A. 62 133. How a Grand-Cape in D. must be executed A. 92. Wife Dowable of a Seisin in Fee defeasible by a Condition A. 168. The Wife shall be endowed at Common Law where the King is to have Primer Seisin A. 285. If a conditional Estate be a good Joynture to bar Dower A. 311. Bar that the Heir granted to the Wife a Rent in satisfaction c. he ought to shew what Estate he had in the Land B. 10. An Infant cannot lose by default in Dower unless per Gardian B. 59 189. Notwithstanding what divorces the Wife shall be endowed B. 169 170. If the Wife shall be endowed where the Husband takes a Fine and renders back presently C 11. If she be barred by Fine and Non-claim if she brings her Writ within five years and desists prosecution six years after C. 50. Touts temps prist a render Dower where necessary to plead it or to give Judgment by default C. 50 52. If the Wise of the Lord shall be endowed of Demeine Lands grantable and granted by Copy by the Lord B. 153. C. 59. Of a Presentation to a Church C. 155. It is a good Bar in Dower that the Feme accepted Homage from the Tenant C. 272. Pleading of agreement to a Joynture made during Coverture C. 272. Divorce If it be causa frigiditatis in the Man who hath Issue by another if the first Marriage be good or the Divorce good until avoided by Sentence B. 169 170 171 172. The several kinds of Divorce B. 169. In pleading of Divorce the Judges name Coram quo must be precisely pleaded B. 170 171. Droit The form of a Writ of Right and what is demandable therein A. 169. B. 36. Whether it lies of an Office Stat. W. 2 cap. 25. A. 169. B. 36. The manner of arrayment of the twelve Recognitors by four Knights A. 303. Droit of an Advowson where it lies A. 316. No challenge to the Polls after the Array made A. 303. Where a Man hath no remedy but by this Writ B. 62 63 65. A Writ of Droit Close directed to the Bailiff and procceeded coram Sectatoribus good C. 63 64. In such Writ twelve Recognitors retorned suffice in an Inferior Court
Debt against the Debtors Executor A. 320. They may have Error of an Utlary in Felony against their Testator A. 325. Good resolutions for their pleading of Statutes Judgments c. A. 328. 329. What Debts must be first paid 328 329. Are liable to account to the King. B. 34. The manner of prosecuting a Devastavit in a forein County against an Executor B. 67. If they plead plene administravit specially by paying Debts upon Bonds they must shew how the Bonds are discharged B. 155. What intermeddling with the deceaseds Estate makes one Executor of his own wrong B. 224. Conditional if he pay all Debts owing to the Testator to the other Executor C. 3. If Executors enter or claim generally it shall be taken to be as Executors and not in any other capacity C. 36. It is said that a promise cannot be good to bind an Executor if he hath not Assets C. 67. Sale of Goods by an Infant Executor is good and binds him C. 143. One Obligor makes the Surety his Executor who pays the Mony generally Quaere C. 197. How he must be sued who being Executor of his own wrong takes Administration C. 197 198. One Executor cannot give the Goods of the Testator to the other for nothing passes by such Gift C. 209. Release of one Executor binds both C. 209. Executor of Executor not chargeable with a Devastavit made by the first Testator C. 241. Exemption A Juror sworn at the Bar notwithstanding he produced his Charter A. 207. Ex gravi querela In London in what case A. 267. Ex parte talis In what case it lieth B. 93. Exposition of Words Dedi Concessi in a Deed A. 29. Where the word Or in a Deed shall be copulative e converso A. 74 244. Of the word eundem in a Grant A. 15. Divisus dividend in an original Writ A. 169. Of Adtunc A. 172. I agree to surrender my Lands spoken by Tenant at will A. 178. Of the word Tenement in Grants A. 188. Of the word Covenant in a Bill of Debt A. 208. Uterque in Indictments A. 241. Quousque A. 244. Suus A. 271. Right A. 271. Factum implies sealing and delivering A. 310. Exponere ad culturam gives no Estate in the Land A. 315. In portum ad portum all one A. 335. Covenant with two quo ibet eorum B 47. In manner aforesaid is a Devise B. 69. By the word Licet may be made a good allegation B. 108. C. 67. A mile is accounted in Law 1000 paces and every pace 5 foot B. 113. Assurance to what Conveyances it doth relâ—te B. 130. Selion of Land is uncertain B. 162. Puer if it relates to both Sexes B. 217 218. Firma C. 12 13. Whether the word Mille may be joyned to a Genitive or Accusative Case C. 94. Tenementum is of an incertain signification C. 102. Of the word until as a Lease until Michaelmas includes the Feast day C. 211 Curtillage quid C. 214. Where a word in the singular number includes the plural C. 262. Immediate C. 273 274. Term of years C. 112. Extent If it be well executed though not retorned A. 280. Executed though not retorned in what case it is a good Execution B. 12 13. Lessee for years may pay the Rent to the Extendor C. 113. Scire facias to remove the Conusee C. 155. If the Conusee can in any case be removed without a Scire facias C. 155 to 158. What kâ—nd of Interest is left in the Conusor during the Extent C. 156 157. If an Extent be avoided by a Prior Statute the puisne Conusee may enter when the other is satisfied C. 239. If a Debt be assigned to the King he shall have all the Conusors Land C. 240. By the Statute of Acton Burnel the Extendors are to take the Lands if they appraise too high and must pay the Debt statim But when that statim means vi C. 274. Extinguishment Of Rent by Entry what act amounts thereto A. 110. Estate for life extinct by a Fee coming to the same person A. 174. A Prescription of non decimand in a spiritual Person is not extinguished by the Lands coming to lay hands A. 248. If a Remainder depending upon an Estate for life escheat the Seigniory is extinct presently A. 255. Where an Action once suspended is extinguished A. 172 320 330 331. Of a Use A. 257 259. A Rent granted in Fee and that it shall be suspended during the nonage of every Heir A. 266. Executor of the Debtee takes to Wife the Debtor how adjudged A. 320. Where personal things once suspended shall be revived B. 84. Lessor mortgages his Reversion to the Lessee in Fee the Term is utterly extinct C. 6. Where a Warrant is suspended and may be revived C. 10 11. A Term for years comes to the Lessor as Executor and he dies the Term is revived C. 210 111. If Unity of possession in the King of Abbey Lands extinguish a Common C. 128. If Devisee of a Term remainder over purchase the Fee the Term is not merged C. 92 93. Condition of re-entry is not suspended by assigning part of the Land for part of the Term C. 221. By destroying a Reversion a Rent depending thereon is extinct C. 261. A Mesnalty extinct by the Lords purchasing the Tenancy C. 261. Extortion Against whom it lies and the several Statutes against it A. 295. C. 268. It must be set sorth in the Judgment whether any Fee or no Fee was due C. 268. F. Faux Imprisonment See Iustification FFaux Imprisonment lies if a Capias be made out of the Courts at Westminster to a County Palatine B. 89. Faux Iudgment Lies upon a Justicies not Error B. 34. Upon a Writ of Right Close prosecuted in nature of an Assise C. 63. Fee-simple Where it may be created without the word B. 27. C. 216. Devise that the elder Son shall take the Profits until the younger come of Age is a Fee conditional in the eldest C. 216. Feoffment Vide Vses Good by the words Bargain and Sell with Livery A. 25. Fine and Amerciament Upon alienation without Licence A. 8. B. 55 56. In what case a Vill shall be amerced for the escape of a Felon A. 107. C. 207. If a Pain upon a Presentment must be afferred A. 203 204 217 242. In what case a Steward may Fine in a Court-Leer A. 217 242. Grantee of Post-Fines if he may distrain for them and sell the distress A. 249 250. The manner of pleading in Trespass where the Defendant-justifies for such Fine A. 249 250. By what words such Fines pass A. 249 250. If a Defendant make several defaults in one Suit he shall be several times amerced B. 4 5. Fine set in a Court for a contempt in not retorning of Cattle in a Replevin B. 174. Debt lies for a Post-Fine by the Kings Grantee B. 179. cont C. 56 234. A Defendant may be several times amerced for several defaults in one Suit B.
185. If a pain set in a Court-Baron may be mitigated by afferrors C. 8. The remedy for a Grantee of the King to recover a Post-Fine C. 56 234. Fine for alienation without Licence may be levied upon any Lands of the Vendor C. 241. Fine of Land. See more C. 74. Partes finis nihil habuer where Executors sell by vertue of a Devise that they shall sell A. 31. Not receiveable if made to two heredibus suis A. 62. A Fine levied of two parts of a Mannor sans dire in tres partes dividend good in a Fine but ill in a Writ A. 115. How to be pleaded upon the Statutes of 4 H. 7. 1 H. 3. 32 H. 8. A. 75 76 77 78. B. 36 37. Quod partes finis nihil habuer how and in what cases to be pleaded A. 78 83 185. B. 36 37. C. 37 119. Where it shall be reversed in part or in the whole A. 115. C. 120. Levied in Exeter City and reversed because it was de duobus Tenementis A. 188. Who shall be bound and how by a Fine and Non-claim after five years A. 212 213 214 259 260 261. B. 18 19 36 37. C. 10. What remainder and contingent Uses are barred by Fine A. 244. B. 18 19 36 37. C. 10. With render of a Rent in Fee and the Lands to the same persons for life how the Law construes this render A. 255. In pleading of it it is not necessary to say that the Conusor was seised A. 255. Dangerous to plead a Fine inter alia A. 255. By Baron and Feme Come ceo que il ad del done le Baron does not bar the Feme of Dower A. 285. Of Ancient Demesne Lands avoided by a Writ of Disceit A. 290. C. 220. For life without the word Heirs is not to be received for fear of occupancy B. 124. The force of a Fine without proclamation such Fine is not void but avoidable by Formedon B. 157. An Infant may declare the Uses and it binds B. 159. Where it must be pleaded and conclude Si actio and where by Estoppel B. 160. Forfeiture Baron and Feme makes a Feoffment of the Wives Joynture to one and his Heirs to the use of the Feoffee for the life of the Feme and adjudged a Forfeiture A. 125 126. Tenant for life forfeits his Estate by levying a Fine A. 40 212 214 262 264. If a remainder which is to vest upon a contingency may be forfeited before it vest A. 244 245. What distress or acceptance shall bar a Lessor to enter for a forfeiture for non-payment A. 262. If Bargain and Sale by Tenant for life be a forfeiture A. 246. It is no forfeiture B. 60 65. What Aid Prayers Vouchers Attornments and Pleadings by Tenant for life and years in real Actions is a forfeiture of his Estate B. 61 62 63 64 65 66. C. 169 170. If Tenant for life and the Reversioner joyn in a Fine and the Reversioner reverse the Fine for his Nonage yet he cannot enter for forfeiture B. 108. If Cestuy que vie die and the Tenant hold over if he be Tenant at Will Sufferance or a Disseisor C. 151 152. Form. Want of Traverse is but Form A. 44. Pleading to a Condition performance of Covenants generally is but form A. 311. Want of shewing a Deed is but Form B. 74. C. 193. Want of shewing a place is substance C. 200. What other matter is but Form C. 235. Formedon After the Tail spent the Plaintiff may suppose all to be dead without Issue A. 286. C. 103. Gavel-kind Land no Assets to bar a Formedon A. 315. In Reverter upon a Gift to the Heirs of the Body of Baron and Feme remainder to their Heirs B. 25. Upon a Gift in Tail remainder to Coparceners the Heir of the Survivor must bring a Formedon for that they claim as purchasers C. 14. Forrest Lex Forestae is but a private Law and must be pleaded B. 209 210. Fraud Fraud shall not be presumed but must be averred C. 255. G. Gardian GArdian in Soccage may grant the Ward though he cannot forfeit C. 190. Gardian in Soccage may enter for Condition broken and make Leases A. 322 323. The Court refused to appoint one for an Infant retorned Tenant in Dower unless in Court in person B 189. Gavel-kind Dower of such Lands is by custom a moiety quamdiu sola c. A. 133. Such Lands are not Assets to bar a Formedon A. 315. Grant. Of Estovers pro Easiamento A. B. heredum suor ' how construed A. 2. Lease at will 10 l. Rent The Lessor grants eundem reditum for life A. 151. Of the next avoidance does not give the then present avoidance A. 167. Of a Vicaridge does not pass the Presentation thereunto A. 191. If an Executor bona sua the Testators Goods pass A. 263. All my Goods and Chattels in such a Town a Lease of the Pawnage of a Park passes C. 19. All Wood upon such Land to be cut and carried away in 30 years does not grant any but what was then growing C. 29 30. A Grant cannot be but of a thing in esse C. 29 30. The force of the word Grant in a Lease C. 33. Grant of all Woods and Underwoods C. 59. Grant of a Rent-Charge to begin when J. S. dies without Issue who had Issue which died without Issue C. 103. All my now Goods and Chattels if the interest or possibility of a Term pass C. 153 to 158. Of the third avoidance c. the Wife is endowed of it the Grantee shall have the fourth C. 155. What interest of a Term or possibility may be granted C. 157 158. Of the Ear-grass of a Meadow C. 213. That the Grantee may take a Load of Hay yearly out of his Meadow the Grantee cannot take no Hay in one year and take two the next C. 226. What shall be sufficient certainty to describe what Lands are granted though part of the description be false A. 119. B. 226. C. 18 19 162 235. Grant of Common in all my Lands the Grantee shall have no Common in the Orchards Gardens c. C. 250. Divers good Cases where Grants of Tenant in Tail and he in Reversion or of Coparceners Joynt-Tenant and Tenant in Common shall be adjudged joynt or several Grants or the confirmation of one C. 254 255 256. Grant of the King and Patents Of a Mannor cum pertin Another Mannor which holds of it passes A. 26. Of an Acre in a great Field not specifying where is void Secus in the case of a common person A. 30. By his Grant Omnium bonorum catallorum Felonum what passes A. 99 201 202. B. 56. Shall be taken according to the true meaning A. 119 120. B. 80. Of a Chose en Action must be very strictly penned N. 271. C. 17 18 196 198. By the Statute of 31 H. 8. cap. 20. the King may grant Lands forfeited before Office B. 124. The force of a Non obstante in
and when Notice must be given to a Patron of a Voidance A. 32. C. 46 47. Where necessary to perfect an Assumpsit A. 105 123. Where Notice of a Surrender of a Lease must be given to him who hath the subsequent Estate C. 96. Nusance See Action sur case Where an Action lieth for stopping of new made Lights where not A. 168. Action on the Case lies for it by Tenant of the Freehold although he may have an Assise C. 263. B. 184. A. 247. Con. C. 13. Where it lies for turning a Water-Course from a Mill new erected on an old Foundation A. 44 45. Every continuance thereof is a fresh Nusance B. 103. C. 174. The difference of exaltare erigere stagnum in such Actions B 180 181. It is enough to say obstupavit viam without shewing how C. 13. For stopping a Water Course so that the Plaintiffs Land was drowned C. 174. O. Obligation GOod without words Obligatory or In cujus rei testimonium A. 25. C. 119. To perform Covenants If the Deed be void the the Obligation is single A. 282. Obligation to pay Mony within a Mannor where J.S. hath bona felonum if the Obligee be attainted J.S. shall not have the Debt B. 56. What words in the Condition make the Obligation void by 23 H. 6. cap. 10. B. 78. With a Condition against the Law is void Cont. if the Condition be only impossible B. 189. Conditioned that one shall not use his Trade in such a Parish is void B. 210. One is bound for the faithful Service of an Apprentice A Release made to the Apprentice is a discharge of the Bond C. 45. Where a Bond is I am content to pay Debt or Covenant lies C. 119. What Bond is joynt what joynt and several C. 206. Bond taken of one not bailable is void per Stat. 23 H. 6. C. 208. Obligation in ten Pounds to be levied by the Obligee of the profits of a Baillwick yet the Obligee may bring Debt C. 223. Made in France may be sued here C. 232. Occupancy Who shall be a special Occupant A. 310. C. 36. He who disseiseth Tenant pur auter vy who dies is a dispensor still and no occupant B. 121. None shall be an occupant but he in possession C. 36. It it shall be of a Use pur auter vy C. 35. Offices and Officer If a Steward of a Court may be deputed by Parol without Deed A. 228. What other Officer may be so deputed Ibid. Of what Office an Assise lieth Ibid. Vicar General of the Spiritualty Chancellor of A. Bishop what A. 312. The Office of Marshal of the Kings Bench and Marshal of England and who hath the Grant of them A. 320 321. If an Office ministerial may be granted in Reversion by any but the King C. 31 32. Office for the King. What Lands or Chattels shall be in the King by Attainder without Office found A. 21. B. 122 to 126 135 to 139 206 207. Or by alienation without licence A. 40. B. 126 135. C. 175. Must be pleaded under the Great Seal A. 65. To what purposes an Office is good not finding who is Heir Ibid. Upon Extent of Lease for years must find the certainty of the Term. B. 121. C. 204. In what case it may be traversed B. 122 to 126 187. C. 185 to 191. What Lands shall revest in the King by a Condition of re-entry before Office found of the Condition broken B. 134 to 145. C. 125 127. What a Common cannot have but by re-entry the King shall not without Office found B. 137. Of what force an Office is which is found after the King hath granted away all the Estate B. 138 to 145. C. 125 126 127. Upon assignment of a Debt to the King the Office must find but Goods since the Assignment C. 197. The Ter-Tenant shall not render recompence to the King for the profits of the Lands before Office found C. 242. P. Pardon IN what case a general Pardon not to be regarded unless specially pleaded A. 300 301. B. 28. Where the Kings General Pardon will not avail without words of Giant B. 123 124. C. 186 187. Parson and Patron What a Vicar is A. 182. They and the Ordinary joyn in a Lease of the Gleab if this bind the Successor A. 234 235. What an Arch-deacoury is A. 316. Partition Between Tenants in Common and Joynt-Tenants where good where bad without Deed A. 103. The form of the second Judgment A. 280. B. 50. Against whom it must be brought A. 291. If it may be made of a Use B. 25 26 27. The pleading thereof B. 24. What part is void what only voidable B. 25 26. Form of the Writ and where it must shew de qua haereditate B. 118. C. 231. If it lies by a Corporation upon the Stat. 32 H. 8. C. 162. Patent See Grant of the King. Perjury See Stat. 5 Eliz. May be punished at Common Law though the Jury give a Verdict against the false Testimony C. 170 230. Petition of Right See Monstrans Plaint In all Inferior Courts there ought to be a Plaint entred before the Defendant be summoned A. 185 186 302. Pleading and Pleas. Vide Bar and Iustification Of a Lease at will it 's good to aver the life of the Lessor A. 14. Of an Averment that the Rent c. was parcel of a Mannor A. 15. Of a Fine and Non-claim not needful to aver Infra Regnum sanae memoriae c. A. 18 76. What things must be shewed by the Plaintiff to enable his Action or must be pleaded by the Defendant A. 18 76 131 306. B. 5. C. 40 41 42 43. Of a Recovery in an Affise in Bar to Trespass A. 24 193. That a Rectory was appropriated to a Colledge A. 38. The Election of a Bishop Ibid. Where Ne unques accouple c. shall be pleaded and where Non fuit uxor A. 53. B. 170 171. Of an Utlary to entitle the King A. 63. Where Nient damnify is a good Plea to an Award which was That the Defendant should discharge and save the Plaintiff harmless from a Bond A. 71. The performance of a Condition to convey the Defendant must shew by what Conveyance c. A. 72. Of a Fine with Proclamation upon the Statute of 4 H. 7. 1 H. 3. and 32 H. 8. A. 76 77 78. Of an Agreement to an Estate Legacy c. A. 129. What matter ought to be shewed by the party who pleads or to come in on the other side A. 18 76 100 131 306. B. 5. C. 40 to 43. Of performance of a negative Covenant A. 136. To two Bars there must be several Replications or Demurrers A. 139. Of a Bargain and Sale must alledge a Consideration A. 170. Where it is not necessary to shew the beginning of a particular Estate nor to aver the life of Tenant for life A. 66 139 176 255. B. 50 94 95. Of a Recovery in a real Action it must be shewed that the Tenant was
Tenant of Freehold Contra in an Assise A. 193. Of Nient comprise in a Recovery A. 184 185. Avowry for Damage Feasant in Copyhold Lands leased to the Avowant The Plaintiff pleads a prior Title to the Mannor in Fee and Ill for he ought to have said he was seised until the avowant entred praetextu of the Lease A. 288. B 80. In what case one may plead Not Guilty in Trespass A. 301. Of a Feoffment by two or a Bond made to two where one is dead A. 322. B. 220. Where one may plead nil debet or the special matter B. 10. To let for Rent of an Eviction by Title B. 10. Where one must plead non concessit or that nothing passed by the Deed B. 13 Where in pleading a place certain must be alledged Vide Lieu County Where to an Information for the King the Defendant cannot plead Not Guilty but must answer specially to the Tort B. 34. Of performance of Conditions to make a good Estate repair a House c. B. 39. Where de injuria sua propria is good Replication with and without a Traverse B. 81 102 103. If a Stranger be bound that the Lessee pay his Rent he may plead entry and expulsion B. 115. Where a Plea must conclude Judgment if Action or If he ought to answer B. 160. That he paid all Debts owing by him to J.S. he ought to shew what Debts C. 3. No pleading of a thing conveyed per nomen c. but by Deed C. 9 10. Plea vicious in Debt upon a Recognizance concluding Judicium si Executio c. C. 58. Of Entry into Religion Resignation and Divorce C. 199. No pleading to the Jurisdiction of the Court after a general Imparlance C. 214 215. One cannot plead an Attachment after Imparlance C. 232. Pledges The King and an Infant need find none B. 4 185 186. Pluralities If an Arch-deaconry make it A. 316. Posse Comitatus Cannot be but out of the Chief Court at Westui C 99. Possession Unity of Possession of 3 purparts of a Mannor does not make the whole liable to a charge granted out of two parts A. 85 86. Unity of Possession of Land and Tithes out of which c. does not extinguish the Tithes A. 248 331 332. Entry of the Brother in one County into the Demesnes of a Mannor extending into two Counties does not make a possessio fratris A. 265. If the possession of a Reversion after a Lease for years make a possessio fratris of Copyhold Lands C. 70. Whether Unity of possession of Lands and Common in the King of Abbey Lands extinguish the Common C. 128. If recovery of Dower against the Brother take away a possessio fratris C. 155 156. What possession makes a possessio fratris C. 273. Power to make Lease by Act of Parliament not pursued C. 72. Premunire Lies not for the party If the Kings Attorny release A. 292. For trying a Freehold without Jurisdiction Ibid. For proceeding in the Admiralty for a matter done upon the Land it must appear in the Libel to be done on the Lands else this Action lies not B. 183. Prerogative See King. That the King shall have a Fine upon alienation of his Tenant in Capite A. 8. The Court ex officio must preserve it A. 63 322. Where the King shall have Primer Seisin A. 65 66. Lands come to the King which are charged with a Rent no distress lies but a Petition of Right A. 191. One cannot cross the King his Title but he must intitle himself A. 202 294. To present a Clerk upon a Lapse vested in the Bishop whose See is after void A. 235. Where the King shall have Primer Seisin and Ward A. 253 284 285. To charge Executors Ad. Computand ' B. 34. The King needs not demand a Rent to entitle himself to a Re-entry A. 12. B. 134. C. 125. May distrain for a Rent-Seek C. 125. May reserve a Rent to a Stranger C. 127. Shall have account against Executors C. 198. The King shall not have his Prerogative to be first satisfied of a Debt which comes to him by Assignment if a Prior Extent be executed C. 239. Upon such Extent the King shall have the whole Land though the Conusee could have but a moiety C. 240. Prescription For Estovers within a Forest A. 2. Cannot be to take all the profits c. but may be to have Fold-course or the like A. 11 142. For Common when the Land is not sowed A. â—3 No Prescription though no memory to the contrary if the commencement be known A. 10â— B. 28. That none shall exercise the Trade of a Baker in a Market Town without the Plaintiffs Licence A. 142 143. Laid in Tenant for life and him in Remainder in tail and yet good A. 177. Where good to have Suitors to a Court and to take Toll c. A. 217 218. Void because unreasonable A. 232 314. C. 41 42 81 82. Good and reasonable A. 232 233 314. C. 41 42. Spiritual Persons may prescribe in non decimando A. 241 248. Though such Prescription be interrupted by the Land coming to Lay-hands yet it is not destroyed A. 248. What words apt to make a Prescription what not A. 273. None against a Statute B. 28. Not a good Prescription That every Inhabitant in a Town shall have Common B. 44 45. C. 200. In pleading a Prescription in a Vill it must be pleaded that the Vill is Antiqua c. B. 98. How to prescribe for a Way with Horses and Carriages C. 13. In pleading it it must be said that the Prescription was once executed not only quod potest c. C. 83. Presentment to a Church Before Induction the King may repeal his Presentation A. 156. B. 164. Presentee of the King by Lapse dies before Induction Videtur that the King may present again A. 156. Grant of the next Presentment made when the Church is void is also void A. 167. The difference between it and a Collation and the definition of them A. 226. If the Bishop die after Lapse devolved to him the King shall Present A. 235. What kind of Interest it is Ibid. If an Archdeaconry become void by the Deacon being made Bishop the King shall present and not the Patron C. 151. The King cannot revoke his Presentment but by express words and reciting the first C. 243. Primer Seisin The Heir shall pay a third part of the profits for Primer Seisin C. 25 54. Principal and Accessary If the Attainder against the Principal be reversed the Accessary is discharged A. 325. Priviledge A person who is priviledged by reason of an Action depending in the Common Bench is priviledged for the Goods of Strangers in his hands so that they cannot be attached A. 169 189. What duty to the King gives a Subject the priviledge to sue in the Exchequer B. 21. If both parties are previledged in the Courts at Westminster allocatur querenti B. 41. One priviledged after Judgment quod computet B.
For an amerciament for not appearing at a Leet C. 14. If the Plaintiff be nonsuit the Court may assess Damages without a Writ of Inquiry if the Avowry be for Rent C. 213. Reputation The signification of the word in Grants reputat fore parcel A. 15. Request When needful C. 73. In Assumpsit where it must be special A. 118 123 221 287. B. 22 215. C. 73 200 201. The like in Covenant A. 124 125 169. Promise to pay Mony at a certain day No request necessary A. 221. Is traversable in Covenant where the Covenant is to be performed upon Request B. 5. Want thereof where necessary not aided by Verdict B. 117. If a Joynt Request be good of several distinct Contracts C. 206. Resceit The Wife shall not be received if her right be not bound A. 86. Cont. B. 9. One in remainder received although he might falsifie the recovery A. 86. If Tenant for life do not pray to be received he in remainder may do it A. 262. By Executors where the Term was limited to the Testator for life remainder to his Executors for years B. 6. Stat. W. 2. c. 3. 13 R. 2. of Resceit B. 62. Stat. Glouc. of Resceit of Tenant for years B. 65. C. 169. In what cases the Tenant by Receit shall have day to plead or plead presently C. 168 169. Upon Resceit of one for a moiety the Plaintiff shall not have Judgment for a moiety C. 169. Where a Termor prays to be received if he must aver the Writ to be brought against the Tenant by fraud C. 168 169. Restitution Utlary in Felony against the Testator reversed by Error by the Executor and restitution de bonis A. 326. Upon a Forcible Entry he in Reversion shall be restored and then Lessee may enter A. 327. Goods sold by Fieri facias not to be restored if the Judgment be reversed B. 90. Of Goods stolen upon an Utlary in Appeal of Robbery B. 108. Retorn of Sheriffs Upon a Capias pro fine ret Cepi Corpus and upon the Cap. ad satisf ret non est invent and fined for contradictory A. 51. Upon a Writ of Hab. Corp. amended A. 145. Where an Averment shall be against it and for whom where not A. 183 184. Upon Elegit that there was a former Writ executed in the same case if good B. 12 13. What is a good retorn in a Writ of Replevin or retorno habendo B. 67. Upon a Fieri facias against Executors after Verdict upon plene administr the Sheriff cannot retorn nulla bona B. 67. Cont. C. 2. Cannot retorn tarde as to part B. 175. Retraxit Cannot be before a Declaration so as to make a perpetual Bar C. 19. S. Saver de default SIckness is no cause as the fall of a Flood or Imprisonment are C. 2. Scire Facias For the King against his Tenant in Capite for alienation without Licence A. 8. For the King against the Ter-Tenant of one Attainted A. 21. In London ad discutiendâ—m debitum A. 52. For the King to gain a Presentation for that the Patron is utlawed A. 63. For the Tenant by Elegit who was ousted by the King for a Debt against the Defendant to shew cause why the Plaintiff should not have the Land the King being satisfied A. 272. Upon reversal of a Fine or Recovery no restitution before a Scire facias against the Ter-Tenant A. 290. For the King against a Debtor in what case necessary B. 55 56. In what case it may issue out of another Court than where the Record is B. 67. Bail not chargeable by any Custom without a Scire facias B. 30 87. Payment no good Plea unless pleaded by Record B. 213. If an Execution were continued no Scire facias is necessary B. 77 78 87. C. 259. Sea. The Queens Interest therein extends to the midst thereof betwixt England and Spain C. 71. Seal The Kings Privy Seal and the force thereof A. 9. Second Deliverance After Withernam B. 174. C. 235 236. None after Verdict but after Nonsuit at the Nisi Prius it lies C. 49. Seisin What is a sufficient Seisin of Services A. 266. What Actions an Heir may have upon a Seisin in Law without entry A. 273. Servant What is a discharge of one retained pro consilio c. for life or otherwise A. 209. If an Action lies for retaining the Plaintiffs hired Servant A. 240. Services Vide Mannor Severance Lieth in Partition A. 55. And in a Writ of Error where A. 317. In case in the Kings Bench of an Executor B. 112. Sheriff His power in executing a Grand Cap. in Dower A. 92. May make a special Warrant and take an engagement to secure himself for Escapes A. 132. May execute a Fieri facias after the Defendants death A. 144. Where he justifies by an Execution he must plead that he retorned the Writ Secus of a Bailiff A. 144. Caveat how he discharge a Prisoner in a Court unless the cause be legal A. 145. Examined upon Oath about a retorn of an Extent B. 12 13. Must hold Plea in person upon a Justicies not the Under-Sheriff B. 34. Must execute Process without questioning the legality of them B. 84 85 93. Action against the Under-Sheriff for proceeding in an Hundred Court after an Habeas Corpus C. 99. Slander Did procure suborn and bring in false Witnesses adjudged actionable A. 101. Forsworn in the Court of Request adjudged actionable A. 127 128. Taken a false Oath in a Court Christian adjudged actionable A. 131 132. Thou art not the Queens Friend A. 336. Words spoken of a Peer or Bishop may bear Action though they will not if spoken of a common Subject A. 336. Corrupt Man spoken of a Judge or Attorny Ibid. Bankrupt will not bear Action unless the Plaintiff be a Tradesman Ibid. J. S. executes false Warrants spoken of a Bailiff Ibid. Liveth by Witchcraft and Sorcery B. 30. For calling one Witch B. 53. If it lies for calling one a Forsworn Man if no legal Oath was given B. 98. Of Title lies though the words were not spoken to any who was buying the Land B. 112. I will prove F. to be perjured actionable C. 151. You live by swearing and forswearing not actionable C. 163. Cousened me of 40 s. not actionable C. 171. Of Title what lies C. 177. Thou hast forged my Hand Thou art a Forger Thou didst forge a writing not actionable C. 231. He went about to kill me actionable Ibid. He forged my Lord of L's Hand to a Letter against the Bishop of L. for which he was committed not actionable Ibid. Statute-Staple Merchant c. If the Conusors Body be taken and let at large by the assent of the Conusee the Land is thereby discharged A. 230 231. If the Conusor sow the Land the Conusee shall reap B. 54. If Debt lies thereupon B. 112. The Body of a Lord is liable to Execution B. 173 174. Statutes Magna Charta cap. 35. When Leets are to be holden
B. 74. Of Merton cap. 4. of Improving Commons The Lord shall have no Common to the Land improved B. 44 45. De Bigamis cap. 3. A. 285. Westm. 1. cap. 3. Of false News A. 287. W. 1. c. 39. Of vouching out of the Line B. 149. Cap. 10. Of choosing Coroners does not oblige to choose Knights B. 160 161. Statutes of Westm 2. Cap. 5. of Essoins A. 143. De Donis cond A. 212 214. Cap. 45. of Scire facias A. 284. B. 88. Cap. 11. Of Escapes B. 9. Cap. 3. Of Resceit to a Wife and to those in Reversion B. 62. Cap. 18. which gives Elegit or Fieri facias B. 84 to 88. Cap. 40. which take away the parol demur for nonage of the Tenant in a Cui in vita B. 148. Cap. 12. Of enquiry of the Abettors of an Appeal C. 140. W. 3d. Quia Emptores terrarum B. 15 16 17. Artic. super Cart. 3. That the Coroner of Middl. and of the Verge shall take Inquisition If one Man be Coroner of both if it sufficeth B. 160. Edward the 3d. 4 E. 3. 7. de bonis testatoris asport A. 193 194 195. 25 E. 3. 7. Of bar in Quare Imp. A. 45. B. 85. 45 E 3. 3. Of Tithes de silva cedua B. 80. 25 E. 3. Which gives Execution by Cap. B. 85. 14 E. 3. Of vouching dead persons The demandant must counterplead before Sum. ad Warrant issue C. 134. Rich. the Second 2 R. 2. Of News A. 287. 13 R. 2. Of Resceit of him in reversion and remainder B. 62. Hen. 4th 1 H. 4. Concerning Dutchy Lands A. 12. 4 H. 4. That no Judgment be avoided but by Error or Attaint B. 116. Hen. 5th 2 H. 5. 3. Of Jurors Aliens The Allen needs not have 4 l. per annum A. 35. 1 H. 5. 5. Of Additions B. 183 186 200. Hen. 6th 8 H. 6. Forcible Entry treble Costs and Damages A. 282. B. 52. In such case he in Reversion is restored and his Lessee may enter A. 327. 18 H. 6. ca. 17. For selling Vessels of Wine which contained not the full measure B. 38 39. 18 H. 6. Which gives the traverse of an Office found who shall have such traverse B. 185 186. 23 H. 6. ca. 10. The Condition of the Bond being to appear and answer c. B. 78. The pleading upon it B. 107. Bond taken of one in Execution void B. 118 119. All Bonds taken of persons not bailable are void C. 208. A promise void by this Act grounded upon consideration the Sheriff let one Escape C. 208. Hen. 7th 4 H. 7. Of Fines how to be pleaded A. 77. The Statute is construed liberally to uphold the non-claim A. 100 213. Who shall be barred thereby A. 212 213. B. 36 37 157 158. C. 10 227. What is a good claim within this Statute B. 53. By a Woman by Writ of Dower C. 50 221. If a Woman be barred of her Dower by a Fine levied by her Husband and no Dower brought in five years C. 50 78. 11 H. 7. 20. Of Alienations by Women A. 261 262. B. 168. C. 78. 3 H. 7. Of Appeals B. 160 161. Hen. 8th 6 H. 8. 15. Of Recital in Patents A. 321. vid. tit Recital 21 H. 8. Of Farms taken by Parsons C. 122. 21 H 8. cap. 19. Of Avowries A. 201. 21 H. 8. 13. Of Pluralities A. 316. 21 H 8. 15. Of falsifying Recoveries B. 65. 23 H. 8. 3. Of Attaints who is pars gravata A. 279. 23 H. 8. 15. Of Costs A. 105. B. 9 10 52. Extends not to Actions given by Statutes C. 92. 26 H. 8. Of the Lands of persons attainted A. 21. 27 H. 8. Of Uses B. 14 258. B. 6 15. How Conveyances to uses before the Statute must be pleaded A. 14 258. This Statute vests the possession of a Term according to the Use as well as a Freehold B. 6 7. What Uses were before this Statute B. 15 16 17 18. The manner and reason of making this Statute B. 17. 28 H. 8. 15. Of the Jurisdiction of the Lord Admiral A. 106 270. 31 H. 8. cap. 20. Which enables the King to grant Lands forfeited without Office found B. 124. 31 H. 8. 13. Of discharge of Tithes of the Lands of the Abbies c. A. 231 232. 31 H. 8. Of Leases made by the Religious Houses shortly before their dissolution B. 55. C. 164 165. 32 H. 8. Of dissolving Abbies if a Unity of possession c. extinguish a Common C. 128. 32 H. 8. Of Partition if it gives that Action to a Corporation C. 162. 32 34 H. 8. Of Wills A. 252 267 113. What Estates may be devised thereby A. 252. B. 41 42 43. C. 105 274 275 276. Upon the clause that the Wife shall be endowed but of two parts 32 H. 8. B. 131. Of a Will made before the Statute C. 28 29. What is a good Will in writing C. 79. 32 H. 8. 37. Of Arrears of Rents in Fee to be recovered by Executors A. 302 303. Idem upon the clause for re-entry upon breach of a Condition B. 33 34. C. 104. 32 H 8. Of Fines and Recoveries by Tenants in tail A. 244. B. 36 37 57 62 63. Vide Stat. 14 El. cap. 18. B. 224. C. 10. 32 H. 8. 30. Of Jeofails A. 175 238. It helps not Issue joyned as to part of a Plea nothing being said as to the other part B. 195. 32 H. 8. c. 9. Of buying pretenced Titles A. 166 167 208. B. 39 48. C. 79 233. 32 H. 8. 28. Of Leases by Bishops A. 59. 32 H. 8. 7. Of the Spiritual Court A. 130. 32 H. 8. Of Leases by Tenant in tail A. 148. C. 156. Idem Of Leases by Tenant for life B. 46. 32 H. 8. 37. Of Arrears of Rent c. extends to Demesne Lands of a Mannor granted by Copy B. 153. C. 59 263. 33 H. 8. Of Offices found for the Lands of persons attainted A. 21. 33 H. 8. Of Recovery of Debts forfeited to the King B. 33. Same Statute of Debts due to the King what Gifts do avoid the Kings Title B. 90 91. 35 H. 8. Which gives the Husband liberty to make Leases if he may make Leases in Reversion C. 132. Edw. 6th 1 Ed. 6. Of dissolving Religious Houses A. 38. A Chauntry in reputation with the Statute C. 114. 2 E. 6. Of Murder done at Sea A. 270. 2 E. 6. 13. Of Prohibitions A. 286. B. 212 213. C. 257. 5 E. 6. Of Ingrossers of Victual B. 39. 8 E. 6. 4. Indictment upon it must be that he drew a Weapon to strike B. 188. 2 E. 6. 24. Of Appeals where the dead was stricken in one County and dies in another C. 140. 3 E. 6. 4. In what case one may have a Constat of Letters Patents C. 165. 2 E. 6. cap. 13. No remedy for the treble value of Tithes in Equity but at Law C. 204. Queen Mary 1 2. Of unlawful impounding Distresses B. 52. Queen Eliz. 1 Eliz. 1. Of the High
Bench. WIlliam Absolon Master of the Savoy and the Chaplains there brought Debt against Anderton The Case was That the said Master and Chaplains leased Lands to the Defendant for certain years and afterwards he accepted of them an Indenture of Bargain and Sale to him and his Heirs by express words of Bargain and Sale without other words And one of the Masters of the Chancery within the 6 months came unto them into their Chapter-house and before him they acknowledged the said Indenture to be their Deed and prayed that it be enrolled which was done accordingly It was moved If that acknowledgment and Enrollment were good or not or if the Master and the Chaplains ought to have appointed one by their Warrant to be their Attorny to acknowledge the said Deed And it was also moved 1 Len. 184. If there needed any Enrollment at all of it because Anderton had then an Interest in the Land for years in which case it is to be considered If the words Barganizavi Vendidi shall be of such effect as the words Dedi Concessi And it was said by the Court That a Warrant of Attorny to acknowledge a Deed were a strange thing And it was agreed That the Indenture being once Inrolled it was not material by what means it was Inrolled but was good being done CXXV Savell and Badcocks Case Mich. 26 Eliz. In the Kings Bench. SAvell brought an Action of Trespass against Badcock and declared That Edw. Savell was seised of the Mannor of D. and leased the same for years to Henry Savell who died having made the Plaintiff his Executor who entred and was possessed until the first day of January at which time the Trespass was done The Defendant pleaded Not guilty And it was given in Evidence on the Plaintiffs part That the said Ed. Savell was seised and leased to the said Henry Savell for years who so possessed reciting the said Lease Demised the said Mannor to Sir William Cordell Master of the Rolls to have to him immediately after the decease of the said Henry for so many years of the said Term which at the time of his death should be unexpired if Dorothy the Wife of the said Henry should so long live Henry died Sir William Cordell entred Dorothy died within the Term the Plaintiff the Executor of Henry entred and was possessed until the first day of Januarii 23 Eliz. at which day the Trespass was done On the Defendants part it was given in Evidence That after the Grant to Sir William Cordell the said Henry and Edward joyned in a fine Sur Conusans de droit c. to a stranger who granted and rendred the Land to the said Henry and his Heirs who devised the same to the said Dorothy his Wife for life the remainder to Cordell Savell in tail the remainder over and died Dorothy entred and died Cordell Savell 22 Eliz. conveyed the Mannor by Fine to one Williamson who entred and afterwards and before the Trespass aforesaid viz. 14 January 23 Eliz. leased to the Defendant for years by force of which the Defendant entred And upon this Evidence there was a Demurrer in Law. And it was argued by Shuttleworth who was made Serjeant the last Term. And he said That the Demise made by Henry Savell is not in the inconveniency of the maxim that Henry by the said Grant should reserve a lesser Estate to himself than he had before For here by this Grant no present interest passeth by Sir William Cordell but the effect of the Grant rests upon a Contingency scil if he himself dieth within the Term c. until which time the whole interest of the Term doth remain in the said Henry Savell subject to the Contingency aforesaid and amounts to so much as if the said Henry had granted the same to Sir William Cordell if he himself should die within the Term in which Case it is a limitation when the said Grant shall take effect As if I grant unto you my Lease for so many years as J.S. shall name the same is a good Grant to take effect upon the naming of J.S. Then the Case being so When Henry Savell the Lessee and Edward Savell the Lessor joyn in a Fine ut supra now the possibility of the remnant of the Term which upon the death of Henry Savell and Dorothy his Wife within the Term might accrue to the Executors of the said Henry Savell is not extinct by the Fine but doth remain Quodam modo in Henry Savell to vest in his Executors if it should happen And here is not any conclusion by the Fine in this Case for Henry at the time of the Fine had not in him any Interest which is now claimed and so cannot be bound by the Fine For the Interest in respect of which the Plaintiff hath cause of Action begineth after the death of Henry who levied the Fine and first accrueth to his Executors and so shall not be touched by the Fine and therefore if such a Lessee for years granteth his Term to J.S. Proviso That if J.S. dieth within the Term that he himself shall have it again and afterwards the Grantor joyns with his Lessor in a Fine and afterwards within the Term J.S. dieth now the Grantor notwithstanding the Fine shall have the residue of the Term Then when the Conusee by the Fine regrants the Land to Henry in Fee that possibility to have after the death of the Donor cannot be drowned in the Fee simple for the reason aforesaid And then when Henry deviseth the same to his Wife that possibility doth pass to Dorothy because it was never in the Devisor and then when Dorothy dieth within the Term the Residue of the said Term shall accrue to the Plaintiff as Executor of Henry Cook contrary And he held The Grant to Sir William Cordell is utterly void And he agreed That Grants although in themselves they be uncertain yet if they may be reduced to certain they are good but here is no expectance of any certainty in the life of Henry for the Term limited to Sir William Cordell is not to begin till the death of Henry and is to end upon the death of Dorothy so as here is not any certain beginning nor certain end and here this Grant cannot be reduced to any Certainty during the life of the Grantor and so for that cause is void See Plow Com. 6 Eliz. Say and Fullers Case 273. by Weston Iustice If A. makes a Lease for so many years as J.S. shall name if J.S. in the life of A. name a certain number of years then the Lease is good but if the Lease had been for so many years as my Executors shall name that can never be made good in my life And upon that reason it is That an Attornment ought to be made in the life of the Grantor or else no Reversion shall pass So 33 E. 3. Entry 79. A Bishop aliens and after his death the Dean Chapter
Case 18 Eliz. Plow Com. 485 486. Where it is holden That upon Attainder of Treason by Act of Parliament the Lands were not in the King without Office in the life of the person attainted upon the words of the Act shall forfeit See Stamford 54 55. acc 3. He conceived That this Interest which came to the King by this Attainder was but a Chattel and then it is released by the Pardon And so he conceived If it be a Freehold For the words of the General Pardon are large and liberal Pardon and Release all manner of Treasons c. And all other things causes c. and here forfeitures are pardoned And also this word Things is a transcendent c. And although it be a general word yet by the direction of the General Pardon it ought to be beneficially expounded and extended as if all things had been especially set down Also the words are Pardon them and their Heirs therefore the same extends to Inheritances for any Offence not excepted for there is the word Heirs And the third branch doth concern only Chattels and that is by the word Grant where the former is by the words Release and Acquit See Br. Charter of Pardon 71. 33 H. 8. Tenant of the King dieth seised the Heir intrudes Office is found in that case by Pardons of all Intrusions the Offence is pardoned but not the Issues and Profits But by the Pardon aforesaid all is pardoned And here in our Case the Office is void For the Statute makes all Precepts Conditions void c. being awarded upon such Forfeitures See also in the second Branch Vexed and inquieted in Body Good Lands c. And see also amongst the Exceptions That persons standing endicted of wilful Murder and forfeiture of Goods Lands Tenements grown by any Offence committed by such person By which he conceived That if that Exception had not been the Land of such a person if he had been attainted upon such Indictment should be forfeited As to the Traverse he conceived That in as much as the Office is true our plea is a Monstrans de Droit although it concludes with a Traverse We vary from the Office in number of persons and in the day of the Feoffment and every Circumstance in the Kings Case is to be traversed and our plea in substance doth confess and avoid the Office. Although the King here be entituled by double matter of Record i. e. the Attainder and the Office yet one of the said Records is discharged by another Record i. e. the Pardon and then there is but one Record remaining scil the Office and therefore our Traverse doth lie And he conceived That at the Common Law there was a Traverse as where it was found by Office That the Lessee of the King had done Waste or cessed for two years and there it is said That the Lessee and Tenant in an Action brought against them may traverse the Office Therefore traverse was at the Common Law where the King was entituled by single matter of Record So upon an Office finding an Alienation without Licence Traverse was by the Common Law. See Traverse in such Case in the Case of William de Herlington 43 Ass 28. See Br. Traverse 54. Petition is by the Common Law and Traverse by the Statute Frowick in his Reading See Stamf. Prerogat 60. That Traverse in the Case of Goods was at the Common Law but Traverse for Lands found by Office by 34 E. 3. Cap. 14. therefore the remedy was by Petition See now Cook 4. Part the Sadler's Case 55 56. Traverse was at the Common Law concerning Freehold and Inheritance but that was in special Cases when by the Office the Land is not in the Kings hands nor the King by that is in possession but only by the Office and entituled to the Action and cannot make seisure without suit there in a Scire facias brought by the King in the nature of such an Action to which he is entituled the party may appear unto the Scire facias and traverse the Office by the Common-Law CCXXXVII Mich. 27 Eliz. In the Kings Bench. A Writ was awarded out of the Court of Admiralty against Sir Tho. Bacon and Sir Tho. Heydon to shew cause wherefore Whereas the Earl of Lincoln late High Admiral of England had granted to them by Patent to be Vice Admirals in the Counties of Norfolk and Suffolk the said Letters Patents ought not to be repealed and annulled And so the said Writ was in the nature of a Scire facias It was moved by Cook That although the Admiral had but an Estate for life yet the Patent did continue in force after his death As the Iustices here of the Common Pleas although they have their places but for life may grant Offices which shall be in force after their death And because the same matter is determinable at the Common Law he prayed a Prohibition For in the Admiralty they would judge according to the Civil Law The Court gave day to the other side to shew cause why the Prohibition should not be awarded CCXXXVIII Mich. 29 Eliz. In the Kings Bench. 1 Len. 302. Ante 150. Post 230. ACcompt was brought by Harris against Baker and damages were given by the Iury It was moved to the Court That damages ought not to be given by way of damages but the damages of the Plaintiff shall be considered of by way of Arrearges But see the Case Hill. 29 Eliz. in C. B. betwixt Collet and Andrews And yet 10 H. 6. 18. in Accompt the Plaintiff Counted to his damage but did not recover damages 2 H. 7. 13. 21 H. 6. 26. The Plaintiff shall not recover damages expresly but the Court shall given Quoddam incrementum to the Arrearages Cook said That it had been adjudged That the Plaintiff should recover Damages in an Accompt ratione Implicationis non Detentionis CCXXXIX Long 's Case Mich. 29 Eliz. In the Kings Bench. NOte It was holden in this Case If a Feoffment in Fee be made of a Mannor to which an Advowson is appendant and Livery is made in the Demesnes but no Attornment that in such case the Advowson shall pass but none of the Services CCXL Barns Case Mich. 29 Eliz. In the Common Pleas. BArns brought an Action of Trespass for taking of his sack of Corn The Defendants justified in the behalf of the Town of Lawson in the County of Cornwell because That King Phil. and Queen Mary granted to them of the said Town a Market to be holden within the said Town and that the Plaintiff came to the said Town with a sack of Corn and the Vendor would not pay Toll for which cause they took the said sack of Corn. And Iudgment was given for the Defendant Vpon which Error was brought and assigned for Error because that the Defendant pleads the Letters Patents with the date of the place year and day without saying Magno sigillo Angliae sigillat For it was holden that