Prerogative of a Prince and is part of Law and stands with it and this is reasonable custome and so it hath been adjudged in the Kings Bench the reason is insomuch that the custome is the life of the Copy-hold upon which that depends and the party is but a Conduit to nominate the Tenant and when he is nominated and admitted then he takes by the Lord and that stands with the rules and reasons of the Common Law that is that a man devises that a marryed wife shall sell his Land and she may sell notwithstanding the Coverture for she upon the matter nominates the party and he takes by the Devise and by this reason she may sell to her Husband as it is agreed by the 8 of Assises And also by devise that Executor shall sell Executor of Executor may sell notwithstanding that he is not in Esse at the time of the Devise and so a Lease for life to one Remainder to him that J. S. shall nominate is good after nomination and then he takes by the first Livery as it is agreed in 10 H. 7. and J. S. Only hath the nomination and nothing passes to him and with this also agrees 43 Ed. 3. 19 H. 7. So if a man makes a Feoffment to the use of himself for life with diverse Remainders over and power to himself to make Leases for three lives this is good as it is agreed in Mildmayes Case and Whitlocks Case 8 Coke and yet the Estate doth not passe from him but out of all the Estates and he upon the matter hath only the nomination of the Lessee and of the lives for all the estates apply their forces to make that good and the 2 El. Dyer 192. 23. Custome that the Wife of the Copy-holder for life shall have her Widdows Estate is allowed to be a good custome and there an Estate for life upon the matter is raised out of the estate for life and annexed to it and this is by the Custome and the reason he conceived to be for that that Women should be incouraged to marry with their Tenants and by that the marriage with the Tenant and the custome in this Case doth bind the Lord and so 4 Coke there are divers customes by which the Lord is bound and the 8 Coke Swaines Case where the Copy-holder by custome hath the Trees in Case where the Lord himself hath them not so if the Lord sell the Waste yet the Copy-holder shall not loose his Common in that notwithstanding that the Estate of the Copy-holder be granted after the Wast is severed from the Mannor and it is agreed in Waggoners Case 8 Coke that custome is more available then the Common Law And for that this cnse hath been adjudged in this point between Crab and Varney by three or four Judges he would not further question it And for the second custome he agreed that one bare Tenant for life could not meddle with the Sale or falling of the Trees but here is a Copy-holder for life which hath Aut ority given by the Lord and the Custome to dispose the Trees and he saith that Bracton and the old Laws of England calls Copy-holders Falkland and saith they cannot be moved but in the hands of the Lord they ought to surrender and agreed that this is within the Rules of the Common Law for Consuetudo privat communem legem and the Law doth nor give reason of that for this is as a ground and need not to be proved for the reason of every custome cannot be shewed as it was sayd in Knightly and Spencers Case and he sayd that Mannors are divided into three sorts of Tenures The first holds by Knights Service and this is for the defence of the Lord and they have a great number of Acres of Land and pay less Services The second holds by Socage and this for to plow and manure the Demesnes of the Lord and they shall pay no Rent nor do other services and this was at the first to draw such Tenants to inhabit there and for that they have Authority to dispose and sell the Trees growing upon theit Tenements The third holds by base Tenure and these were at the Will of the Lord and these were to do Services and then these in many Cases have liberty for their Wives in some cases to dispose that for another life and to dispose the Trees and so it is in Ireland at this day where some give more and greater priviledge then others to induce Tenants to inhabite and manure their Land for there every day is a complaint made to the Councell for inticing the Tenants of the Lord and 14 Ed. 3. Bar 277. The Tenant preseribes to have the Windfalls and if the Lord cut the Trees that he may have the Lops and 11 H. 6. 2. The Keeper of the Wood prescribes to have Fee and 46 Ed. 3. is prescription to stint the Lord in his own Soyl and all these are for the Incouragement of Tenants to inhabit upon the Land and time of Ed. 1. Prescription 75. A stranger prescribed to have all the profit of the Land of another for a great part of the yeare and to exclude the giver of the Soyl 6 Ja. It was adjudged in the Kings Bench between Henrick and Pargiter that the Lord may be stinsted for Common in his own Laud and in the Book of Entries 563. It appears that by Custome Copy-hold granted Sibi suis was a good Fee-simple and the reason of all this is shewed in the 4. Coke amongst his Copy-hold Cases where it is agreed that the Life of a Copy-hold Estate is the customes and then if the Custome gives life to the Estate this gives life also to all the Priviledges which are incident to the Estate and the Lord is but the means to convey the Estate from one to another and as in 38 Ed. 3. A man hath a House as Heir to his Mother and after a stranger grants Estovers to him and his Heirs to be burnt in the same House these Estovers shall go to the Heirs of the Mother insomuch that they are incident to the House so of Priviledg incident to a Copy-hold Estate by the Custome and at the Common Law if Tenant for life hath cut the Trees he hath not forfeited his Estate for he was trusted with the Land and was not punishable till the Statute of Glocester and at this day if there be a mesne Remainder for life which remains in Contingency and that shall prevent that the Tenant shal be punished for this waste and to make innovation of this custome will be dangerous and for that he concluded that the Plaintiff shall be barred Warburton Justice agreed And the first Custome that is for the nomination of the Successor he conceived that it is good and that it is good by the Common Law and good by Custome by the Common Law as a Lease for life remainder to him which the Tenant for life shall
cannot a Copy-holder which hath so base an estate And if this shall be so these mischeifes will insue That is that this base estate should be of better security then any estate at the Common Law for Fine shall not be a Barr of that for it cannot be levied of that also Recovery cannot be suffered of that for there cannot be a Recovery in value neither of Lands at the Common Law neither of Customary Lands for they cannot be transferred but by the hands of the Lord. And to Littleton he agreed and also 4 Ed. 2. which agrees with this where it is said that at Stebenâ—eath a Surrender was of Copy-hold Lands to one and the Heires of his Body but he said that that shall not be an Estate taile for then the Estate hath such operation that this setles a Reversion and Tenure betwixt the Giver and him to whom it is given but this cannot be of Copy-hold Land for this cannot be held of any but only of the Lord and to the others this Estate doth not lye in Tenure and yet he agreed that of some things which did not lye in Tenure Estate Tail may be but Land may be intailed but Copy-hold Estate is so base that an Estate tail cannot be derived out of it so that though that custome may make an Estate to one and the Heires of his Body yet this cannot be an Estate taile but Fee-simple conditionall and also he agreed that they might have Formedon in Discender but it is the same Formedon which was before the Statute as if Tenant in Fee-simple conditionall before the Statute would alien before issue but it was no Estate taile with the priviledges of an Estate taile before the Statute and to the other matter of Surrender that is the admittance of the parties which is an Estate taile that doth not conclude the Court as it appears by the Lord Barkleys Case in the Commentaries where the Estate pleaded severally by the parties is not traversed by any of them and so concludes and prayes Judgment c. And this case was argued again in Trinity Tearme next ensuing by Montague the Kings Serjeant for the Defendant and he said that there are three questions in the case First If Copy-hold land may be intailed Secondly Admitting that it may be intailed if Surrender makes discontinuance Thirdly If it shall be Remitter and to the first he seemed that it might be intailed and that it shall be within the Statute of Westminster 2. And first for the Antiquity of that he said that Littleton placed that amongst his Estates of Free-hold and hath been time out of minde and is a primitive Estate and not derived out of the Estate of the Lord and the Lord is not the Creator of that but the means to convey that after that it is cerated and what is created then shall have all the priviledges and Benefits which are incident to it and shall be nursed by the custome and is time out of minde and the Law alwaies takes notice of it and he cited 24 H. 4. 323. by Hankf Bracton Fitz. Na. Bre. 12 C. and Brownes Case 4. Coke which is not simply an Estate at the will of the Lord but at the VVill of the Lord according to the custome of the Mannor and when it hath gained the reputation of Free-hold then it shall be dircted according to the rules of the Common Law and 2. and 3. P. and Ma. Dier 114. 60. allow Copy-hold Estate to be intailed and he saith That no Statute hath more liberall exposition then the Statute of Westminster 2. 45. Ed. 3. Incumbrance shall not charge the Issue intaile also a Copy-holder shall have a Cui in vita also a Copy-hold is within the Statute of Limitation and so upon the Statute of buying of pretenced rights And it is alway intended when a Statute speakes of Lands and Tenements that Copy-hold Lands shall be within that And he saith That all the Objections which have been made of the contrary part are answered in Heydons Case but he relyed upon that that every reall Inheritance is within the Statute of Westminster 2. 4 Ed. 2. Formedon lyeth of Copy-hold Land 25 Ed. 3. 46. Estate tayle is of a Corrody and office which proves that Copy-hold is a reall Inheritance and for that shall be within the Statute 46 Ed. 3. 21. Gavelkinde Land may be intailed 6 Rich. 2. Avowry 2. 8. Rich. 2. 26. Copy-holder shall be charged with Fees of a Knight at Parliament 22 and 23. Eliz. Dier 373. 13. Lands in ancient Demesne were intayled and he said that the reason is that for that it is Inheritance and time hath applyed them to an Estate and so concluded and prayed Judgment for the Defendant Hutton Serjeant argued for the Plaintiff that Copy-hold Lands cannot be intailed for that is but a customary Estate and the Law doth not take any notice of it but onely according to Custome for there were no Estates tayle before the Statute for then all were Fee simple absolute or conditionall that is either implyed or by limitation which cannot be of an Estate tayle which is not within the Statute of Westminster 2. for no Actions are maintainable by that but those which are by the Custome and a Writ of false Judgment See Fitzherberts Natura brevium 12. 13 Ed. 3. F. Prescription 29. that it hath no Incidents which are incident to Estates at the Common Law without Custome as Dower See Revetts Case and so is Tenancy by the Curtesie and there shall be no discent of that to take away Entry and so of other derivatives And he seemed that it is not within the Statute for three reasons apparent within the Statute First That it is hard that Givers shall be barred of their reversions but in case of Copy-holds the Giver hath no remedy to compell the Lord to admit him after the Estate tayle spent but onely Subpena and in this Case the Lord may releive himselfe for the losse of his services for that the Statute provides no remedy for him Secondly That the Statute doth not intend any Lands but those of which there is actuall reversion or remainder and those which passe by Deed so that the will of the Giver expressed in the Charter may be observed and of which there may be a subdivision as Lord Mesne and Tenant for there shall be alwayes a reversion of the Estate tayle and the Donee shall hold of the Donor and not of the Lord. Also it seems that the Statute doth not intend to provide for any but those for whom the VVrit in the Formedon ordained by the Statute lyes and agreed that for Offices and such like Formedon lyeth if the party will admit Estate tayle to be discontinued Also the Statute intends those things of which a Fine may be levyed for the Statute provides that the Fine in his owne right should be nothing but by Copy-holder Fine cannot be levied and for that he shall not be within the
Mannor held in cheife and of other Mannors and Lands held of a Common person in socage and had Issue foure Sonns Thomas William Humphrey Richard And by his Deed 12 Eliz. covenants to convey these Mannors and Lands to the use of himself for his life without impeachment of wast and after his desease to the use of such Farmors and Tenants and for such Estates as shall be contained in such Grants as he shall make them and after that to the use of his last will and after that to the use of VVilliam his second sonn in tayle the Remainder to Humphrey his third Son in tayle the Remainder to Richard the fourth Sonn in tayle the Remainder to his own right Heires with power of Revocation and after makes a Feoflment according to the covenant and after that purchases eight other acres held of another common person in socage and after makes revocation of the said Estates of some of the Mannors and Lands which were not held by Knights service and after that makes his Will and devises the Land that he had purchased as before and all the other Land whereof he had made the Revocation to Thomas his eldest son the Heirs Males of his body for 500. years provided that if he alien and dye without Issue that then it shall remaine to William his second sonne in tayle with the like proviso as before and after dyed and the Jury found that the Lands whereof no revocation is made exceeds two parts of all his Lands Thomas the eldest sonne enters the 8. Acres purchased as before and dyes without Issue male having Issue a Daughter of whom this Defendant claimes these eight Acres and the Plaintiff claims them by William the second Son And Dodridge the Kings Serjeant argued for the Plaintiff intending that the sole question is for the 8. acres purchased and if the devise of that be good or not by the Statute of 34. H. 8. And to that the point is only a man which hath Lands held in cheife by Knights service and other Lands held of a common person in Socage conveys by act executed in his life time more then two parts and after purchases other Lands and devises those if the devise be good or not And it seems to him that the devise is good and he saith that it hath been adjudged in the selfe same case and between the same parties And this Judgment hath been affirmed by writ of Error and the devise to Thomas and the Heirs males of his body for 500. years was a good estate tayle and for that he would not dispute it against these two Judgments But to the other question hee intended that the devise was good and that the Devisor was not well able to doe it by the Statute of 34. H. 8. And hee intended that the statute authoriseth two things 1. To execute estates in the life time of the party for advancement of his Wife or Children or payment of his debts and for that see 14. Eliz. Dyer and that may be done also by the common Law before the making of this statute But this statute restrains to two parts and for the third part makes the Conveyance voyd as touching the Lord But the statute enables to dispose by Will a parts where he cannot dispose any part by the Common Law if it be not by special Custome but the use only was deviseable by the common Law this was altered into possession by the statute of 27 H. 8. and then cometh the statute of 32. and 34. H. 8. and enables to devise the Land which he had at the time of the devise or which he purchased afterwards for a third part of this Land should remain which hee had at the time of the devise made and if a third part of the Land did not remain at the time of the devise made sufficient should be taken out of that but if the Devisor purchase other Lands after hee may those wholly dispose And for that it was adjudged Trin. 26. Eliz. between Ive and Stacye That a man cannot convey two parts of his Lands by act executed in his life time and devise the third part or any part so held by Knights service and also he relyed upon the words of the statute that is having Lands held by Knights service that this shall be intended at the time of the devise as it was resolved in Butler Bakers Case That is that the statute implies two things that is property and time of property which ought to be at the time of the devise But here at the time of the devise the Devisor was not having of Lands held by Knights service for of those he was only Tenant for life and the having intended by the statute ought to be reall enjoying and perfect having by taking and not by retaining though that in Carrs Case cited in Butler and Bakers Case rent extinct be sufficient to make Wardship yet this is no sufficient having to make a devise void for any part Also if the Statute extend to all Lands to be after purchased the party shall never be in quiet and for that the Statute doth not intend Lands which shall be purchased afterwards for the Statute is having which is in the Present tence and not which he shall have which is in the Future tence and 4. and 5 P. and M. 158. Dyer 35. A man seised of Socage Lands assures that to his Wife in joynture and 8. years after purchases Lands held in cheife by Knights service and devises two parts of that and agreed that the Queen shall not have any part of the land conveyed for Joynture for this was conveyed before the purchase of the other which agrees with the principall case and though to the Question what had the Devisor It was having of Lands held in Capite insomuch that he had Fee-simple expectant upon all the estates tayl he intended that this is no having within the Statute but that the Statute intend such having of which profit ariseth and out of which the K. or other Lord may be answered by the receipt of the profits which cannot be by him which hath fee-simple expectant upon an estate tayle of which no Rent is reserved and also the estate tayle by intendment shall have continuance till the end of the world and 40. Edw 3. 37. b. in rationabili parte bonorum it was pleaded that the Plaintiff had reversion discended from his Father and so hath received advancement And it seems that was no plea in so much that the reversion depends upon an estate tayle and upon which no Rent was reserved and so no advancement So of a conveyance within this Statute ought such advancement to the youngest sonne which continues as it is agreed in Binghams Case 2 Coke that if a man convey lands to his youngest sonne and he convey that over to a stranger in the life time of his father for good consideration and after the Father dies this
is now out of the Statute for the advancement ought to be continuing until the death of the Father And so he saith also it was adjudged in Butler and Bakers Case that if a man devise Socage Lands and after sell to a stranger for good consideration his Lands held by Knights service this devise is now good for all for hee hath not any Land held by Knights service at the time of his death and so he concluded that the devise was good and prayed Judgement for the Plaintiff Houghton Serjeant for the Defendant he thought the contrary and hee argued that before the statutes of 32. and 34. of H. 8. men were disabled to devise any Land and for that they cannot provide for their Wives Children or for payment of their Debts and for remedy to that Feoffments to uses were invented and then to dispose the use by their Wills and then experience finds that to be inconvenient and then the statute of 27. H. 8. transfers the use into possession and then neither use nor land was deviseable without speciall Custome and then this was found to be mischeivous after five years experience and then was the statute of 32. H. 8. made and where by the statute of Marlebridg of those which did enfeoff their begotten sons a Feoffment by the Father to his son and Heir was void for all Now by this statute this is good for 2. parts and void only for the 3d part that for the good of the Lord but as to the party that is good for all as it is agreed in Mightes case 8 Coke Then to consider in the case here if all things concur that the statute requires and to that here is a person which was actually seised of Land held by Knights service in 12. Eliz. So that it is a person which then was having within the statute 2. If here be such conveyance for advancement of his children as is intended within the statute and to that he seemed that so notwithstanding that it may be objected that here is no execution to the youngest children insomuch that it is first limited to such Farmers and Tenants c. But he intended that this is no impediment Secondly also there is a limitation to the use of his last Will. Thirdly also there is a limitation to the use of such persons to whom he devises any estate by his Will But these are no impediments for the last is no other but a devise to himselfe and his heirs and there is not any other person knowne but meerely contingent and it is not like to a remainder limited to the right heirs of I. S. for there the remainder is in Abeiance but here it is only in contingency and nothing executed in Interest till the contingency happen and the not having of a son at the time shall not make difference as in 38. Edw. 3. 26. in formedon in Remainder where the gift was in one for life the remainder to another in tayle remainder in fee to another stranger and he in remainder in tayle dyes without Issue in the life time of the Tenant for life he in remainder in fee may have formedon in remainder without mentioning the remainder in tayle But here he intends that the devise shall be void in respect of the Lands first conveyed which were held in cheife by Knight service for the words of the statute are by act executed either by devise or by any of them and they are conjoyned and it is not of necessity that the time of the Conveyance shall be respected but the time of the value And notwithstanding that the Testator doth not mention any time But in so much as the provision of the statute is to save primor seisin and livery to the King as if the man had 20 l. by year in Socage and one acre in cheife and makes a conveyance of all that it shall be void first to the livery and priâ—or seisin to the third part So if he make conveyance of the 20 l. by yeare and leave the said acre held in cheife to discend and after that purchase other Lands to the value of the third part of all the conveyance of the 20 l. land notwithstanding which for the advancement of his Wife Children or payment of his Debts for he had a full third part at the time of his death which discended And he supposed that the having of a dry reversion depending upon the estate tall is sufficient having within the words and letter of the Statute and yet he agreed the ease put in Butler and Bakers case that if a man devise his Socage Lands and after alien his Lands held in cheife by Knight service to a stranger bonafide this is good So if he had made a reservation of his Lands held in chiefe to himselfe for his life in so much that his estate in that ended with his life and hee remembred the case cyted in Bret and case Comment That if a man devise a Mannor in which he hath nothing and after hee purchaseth it and dyes the devise is good if it be by expresse name But when a man hath disposed of two parts of his Land the Statute doth not inable him to devise the Residue but he hath done all and executed all the authority which the Statute hath given to him But he agreed also that the reversion is not such a thing of value which might make the third part discend to the Heir but it is uncertaine as a hundred and the other things of uncertain value contained in Butler and Bakers Case And also he intended that the remainder could not take effect insomuch that the condition is precedent and it is not found that the eldest Sonne hath aliened and then dead without Heir male and so he concluded and prayed Judgment for the Defendant In Replevin the Defendant avows for 9 s. Rent the Plaintiff pleads a Deed of feoffment of the same Land made before the Statute of quia emptores terrarum by which 6 s. 8 d. is only reserved and demands Judgment if he shall be received to demand more then is reserved by the Deed See 4 Ed. 2. Avowry 202. 10. H. 7. 20. Ed. 4. 7. Edw. 4. Lung 5 Ed. 4. 22 H. 6. 50. This Deed was without date and it was averred that it was made before the Statute of quia emptores terrarum which was made in the 18. of Edw. 1. And also it ought to be averred to be made after the beginning of the Reign of Richard 1. For a writing after the beginning of his Reign checks prescription But if a man hath a thing by grant before that he may claim by prescription for hee cannot plead the grant insomuch it is before time of memory and a Jury cannot take notice of that and for that the pleading before with the said averments was good If debt be due by Obligation and another debt be due by the same Debtor to the same Debtee of
twenty yeares if the Husband and wife and the Issue male of their Bodies so long live and it was there adjudged that the Lease doth not determine during the lives of any of them for in this disjunctive it is referred to an Intiâ—e Sentence and is as much as if he had sayd if the Husband or the Wife or the Issue of their Bodies so long live Hillary 7. Jacobi 1609. In the Common Bench. Borough of Yarmouth THE King John by his Letters Patents granted that the Burrough of Yarmouth should be incorporated and the grant is made Burgensibus without naming of their Successors and also he granted Burgensibus teneri placita coram balivis and in pleading it was not averred that there were Bailiffs there and it was objected that the Burrough cannot be incorporated but men which inhabite in that but to that it was resolved that the Grant is good and the Lord Coke sayd that he had seen many old Grants to the Citizens of such a Town and Good and so that the Grant Burgensibus that the Bâ—rrough should be incorporated being an old Grant should have favorable construction but the doubt was for that that it was not averred that there were Bailiffs of Yarmouth and if a Grant to hold Pleas and doth not say before whom the Grant is voyd according to 44 Ed. 3. 2 H. 7. 21 Ed. 4. and for that it was adjourned But the opinion of all the Court was that the Grant made Burgensibus was good without naming of their Successors as in the case of Grant civibus without more Note that Executors or Administrators shall not finde speciall Bail for the Debt of the Testator though that the debt be for a great sum as three thousand pound or more for it is not their Debt nor his Body shall not be lyable to execution for that 43 Ed. 3. Suit was commenced hanging another Writ it is a good Plea though that the Writ was returnable in the Common Bench and the last Suit was begun in a Base Court but if so be and doth not appeare to this Court that the Plaintiff begun suit in a base Court for the same Debt for which the Suit is here begun Attachment shall be awarded see 2 H. 6. 9 H. 6. but this ought to appear to the Court by Affidavit c. Hillary 7 Jacobi 1609. In the Common Bench. Chapman against Pendleton IN second deliverance the case was this A man seised of a house and fifty Acres of Land held by Rent fealty and Harriot service enfeoffs the Lord of three Acres parcell of the Land and after infeoffs the plaintiff in this Action of three other Acres and upon this rhe sole question was if by this Feoffment to the Lord of parcell Harriot service is extinct or not Harris Serjeant conceived that the Harriot remaines for he sayd that it is reserved to the Reversion of the Tenure but it is not as anuall Service but casuall and it is not like to rectify for that it is incident to every service And by 43 Ed. 3. 3 It is no part of the service but Improvement of the service And Bracton in his Tractate De Relevijs 2 Booke 2 7. saith that Est alia prestatio vocata Harriot c. Que magis fit de gratia quam ex Jure and it is not like to a releife see the Booke at large and he agreed that if the Tenant had made fifty severall Feoffments to fifty severall men that every of them shall pay a severall Harriot as it appears by Bruertons Case 6 Coke 1. a 34. Ed. 3. Harriot 1. 2 Ed. 2 Avowry 184. 〈◊〉 Ed. 2. Ibidim 206. 11 Ed. 3. Avowry 101. 24 Ed 3. 73. a 34 Assise 15. 22. Ed. 4. 36. 37. 29 H. 8. Tenures 64. But he grounded his Argument principally upon Littleton 122. 223. Where it is sayd that the reason why Homage and Fealty remaine if the Lord purchase part of the Tenancy is for that that they are of annuall Services and it seemed to him that Littleton is grounded upon 7 Ed. 4. 15. Extinguishment 2. 8 Ed 3. 64. 24. Ed 3 B. Apportionment last case which accords the reason and upon this he concluded that for that that the Harriot is not annuall it shall not be extinct by the Feoffment but remaines but he agreed if a man makes a Lease for years rendring Rent and parcell of the Land comes to the Lord the Rent shall be apportioned if it be by Lawfull means as it appears by 6 R. 2. F. Quid Juris clamat 17. Plesingtons Case and 24 H. 8. Dyer 4. 1. Rushdens case by which c. Nicholls Serjeant that it hath been agreed that it is intire service and that then he concluded upon that that it shall be of the nature of other intire services as it apperrs by 2 Ed. 2. Avowry 184. and 34 Ed. 3 F. Harriot 1. 5. Ed. 2. Avowry 206. And he agreed that in the case of Littleton the Homage and Fealty remain and the escuage shall be apportioned but this is not for the reason alledged in Littleton that is for that that they are not annuall services but for that that the Homage is incident to every Knights service and as the Lord Coke sayd fealty is incident to every service in generall and the Tenant shall make Oath to be faithfull and loyall to his Lord for all the Tenements which he holds of him and the reason for which the Escuage shall be apportioned is for that that it is but as a penalty which is inflicted upon the Tenant for that that he did not make his services as it appears by the pleading of it and shall be apportioned according to the Assesment by Parliament and by 22 Ed 4. It appears that this purchase by the Lord is as a release and if the Lord release his services in part this extincts the services in all and he sayd there is no difference where an intire service is to be payd every third or fourth year and where it is to be payd every year as to that purpose and yet in one case it is annuall and in the other it is casuall and yet in both cases if the Lord purchase parcell of the Land of the Tenant all the intire services shall be extinct and gone though that they are to be performed every third or fourth year by which c. Foster Justice that the Harriot is entire service and for that though that it be not annuall it shall be extinct by purchase of parcell of the Tenancy by the Lord as if a man makes a Feoffment with warranty and takes back an Estate of part the warranty is extinct as it appears by the 29. of Assise so if a man hold his Land by the service to repaire parcell of the fence of a Park of the Lords and the Lord purchase parcell of the Tenancy the Tenure is extinct as it appears by 15 Ed. 3. And it is
to have distrayned the Cattell of the Lord damage fesant and observe his BRaxall versus Thorold Trin. 8. Jac. In Replevin for the taking of 4 Oxen at Coringham in the County of Lincoln in a place called Dowgate leys Sept. 6. Jac. The Defendant says the place contained four acres in Coringham magna which was his Free-hold and justifies the taking damage fesant The Plaintiff in his bar to the Avowry that the place where c. lies in a place called Harrerart quarter parcell of a great Common Field called E. in Coringham aforesaid and that the Plaintiff the said time and long before was seized of one Messuage and of 14. acres of Land Medow and Pasture with the appurtenances to the said Messuage belonging and that the Plaintiff and all they whose estate the Plaintiff had in the Tenements ought to have common and so prescribed to have common for him his Farmers Tenants c. for all comunable cattell levant couchant upon the Tenements c. And upon issue taken upon the Common it was found for the Plaintif and alledged in arrest of Judgment that it did not appear by the Barre to the Avowry in what place the Messuage and Land to which the Common did appertain did lie to wit whether it did lie in Coringham or in any other place or County and thisof necessity ought to have been shewed in certain because the tenure ought to be both of the place where the House and Land did lye and of the place where the Land did lye in which the Common was claimed and therefore of necessity ought to have been shewed incertain and shall not of necessity be intended to be in Coringham where the Common is For a Common may be appendant or appurtenant to Land in another County And the trvall shall be of both Counties and Judgement was arrested by the whole Court TRuelock versus Riggsby Mich. 8. Jacobi In Replevin for the taking of six Kine in a place called Brisley hill in Radley in the County of Berks the Defendant as Bailiff of one Read makes Conisance that the place where c. contains fifty acres and is parcell of the Mannor of Barton whereof the place where c. is parcell and showes that E. 6. was seised of the Mannor of Barton whereof the place where is parcell and granted it by Letters Patents to R. Leigh and divers other Lands by the name of the Coxleyes c. and amongst other particulars in the Patent the King granted Brisley hill in Barton and deduces the Free-hold of the Mannor of which the place In which c. is parcell to Read and he as Bailiff to him took the Kine damage Fesant the Plaintiff replies and shows that one Hide was seised of a Messuage and divers Acres of Land in Radley and that he and those whose estate he hath for himself his Farmers and Tenants used to have Common in the said place called Brisley hill in Radley when the said Feild called Brisley hill in Radley was fresh and not sowed all that yeare with their Cattell Levant and Couchant and when the Field was sowne with Corne and when the Corne was carried away untill it was referred and so justifie the putting in of six Kine using his Common because the Feild was not sown with Corne at the time to which the Defendant pleads and saies that part of the Feild called Brisley Hill in the Avowry named was at that time sown with Corn c. and the Plaintiff demurres and adjudged for the Plaintiff for two reasons The first was because the Defendant in his Avowry referres the taking of the Cattell to another place then that set forth in the Avowry which is not in question and in which the Plaintiff claims no Common for the Plaintiff may claim Common in Brisley hill in Radley and the place named in the Defendants Avowry to which he referres his Plea is Brisley hill in Barton for Brisley hill in Radley is not named in the Avowry by any speciall name but onely by implication by this name the place in which c. and for that reason the rejoinder doth not answer the matter in the replication The second cause was because the Plaintiff claims Common when Brisley hill in Radley was unsown with Corn and the Defendant to that although his Plea should referre to the same Brisley yet hath he given no full answer for he saith that parcell of the said Feild was sowed with Corn and the Court held that sowing of parcell of the Feild shall not hinder the Plaintif from using his Common in the residue for that may be done by covin to deceive the Plaintiff of his Common for the Plaintif claiming his Common when the Field that is the whole Feild is sown shall be barred of his common by sowing of parcell of it notwithstanding that parcell be sowed the Plaintif shall have his common by the opinion of the whole court GOdfrey versus Bullein Mich. 8 Jacobi Bullein brought a Reple vin against Godfrey for the taking of six Beasts in such a place in Bale in the County of Norfolk the Defendant as Bailif of R. Godfrey makes conisance because before the time and at the time in which c. the said R. Geffrey was seised of a Court Leet in Baile of all the inhabitants and râ—â—dent within the Precinct of the Mannor of Baile to be holden within the Precinct of the Mannor as appertaining to his Mannor and shews how that he had used to have a Fine of ten shillings called a Leet Fine of all the cheif pledges of his Leet and if they failed to pay the Steward had used to amerce them that made default in payment shewed how that at a Court holden within the Mannor such a day it was presented that the Plaintif in the Replevin being an inhabitant in B. and resident within the Precinct of the Mannor made default in payment of the said Fine of ten shillings being then one of the cheif pledges of the Court by reason whereof he was amerced at five pounds which being not paid the Defendant took the Beasts and the Issue was whether Bullein at that court was a chief Pledge or no and the Venire to try his Issue was onely of the Mannor and found for the Plaintif and damages and costs to thirty pounds given against Geffrey upon which he brought a Writ of Error in the late Kings Bench and adjudged Error and the Judgement reversed for the Venire facias should have been both of Bail which was the Village as of the Mannor for although the Court be held within the Mannor yet the Leet it self is within the village of Baile and the Plaintiff was an inhabitant and resident within the village which village is within the Precinct of the Mannor and though Fleming cheif Justice held that nothing was in question but whether the Plaintiff was cheif pledge at the Court held within the Mannor or no and so nothing within the
of Parent 42 Imparlance what plea after 42 Judgment Arrested 2 Judgment reversed because the Sheriff was not named in the Venire facias 3 Iudgment arrested 5 Justification not good where 5 Justification amounting to a not guilty naught 5 Innuendo will not help the action 7 9 Imparlance Roll supplyed by the issue 9 Juror committed 44 Judgment upon a By-law 48 49 Judgment pleaded in Bar by Executor 49 Judgment against Executors 53 Imparlance amended 53 Judgment arrested for improper words Sans Anglice 82 Jeofaile the statute not helping where 82 Judgment reversed by Error in the disjunctive 88 Intendment upon a Will 89 Judgment reversed in an inferiour Court why 97 Judgment reversed for Errour in the judgment 99 Judgment reversed for changing the Defendants addition 100 Judgment priority considerable 102 Judgment reversed for not shewing in what Court a deed was enrolled 115 Judgement reversed for want of words in the Tales 115 116 Implication not allowed of in a surrender where 128 Judgment in an Eject firmae 129 Interest what 136 Judgment reversed by Writ of Error non obstante a verdict the Statute of 18. Eliz. 106 Imparlance what is pleadable after 138 Joynture what 139 Interest in possession and in future the difference 148 Implication not intended where 153 Judgment arrested for that the plea was naught 172 Jurors name mistaken was amended upon constat de persona Iudgment arrested for not shewing in what place the Messuage did lie to which Common did belong 188 Iury challenge 194 Iudgment it 's nature as to the Plaintiff and Defendant 194 Issue helped by the Statute of Jeofailes where 200 Iudgement reversed because the writ of Enquiry was before a wrong Officer 203 Imprisonment justified by the commandment of the Maior of London naught where 204 Justice of Peace cannot command his servants to arrest in his absence without Warrant 205. Iustification in Trespass for a way 212. Iustification not good where 218. Iustification speciall pleaded in Battery 226. Issue of things in severall places 229. K. KIngs Title not lost 164 Knight ought to be returned in the Pannell where 193. L. LAw Gager lies not if the except be per manus proprias 25 Lease to two determined upon the death of one where 30. Lease of a Reversion sans Attornament where good 30. Legacy of Land not suable for in Court Christian 32. Legacy of a Chattell suable for in Court Christian 34. Locallity not to be made transitory 35. Limitation is taken strictly grant aliter 39. Lessee at will cannot grant over his Estate 43. Law mistaken where it is hurtfull 41. Letters of Administration ought to be shewed 9. Law waged where 53. Law wager by a false party 55. Letter of an attorny where naught 94. 95. Law Gager lies not in debt for sallery 60. Law Gager where 70. 65 Lessee at will if he determine his Will Devis au yet shall pay the intire Rent 90. Lease to try a Title of Lands in the hands of many 129. Lease to be executed by Letter of an Attorney how 129. Lease made to three for their lives with a Covenant that the Land should remain to the survivor for 90 years is a good Interest in the Survivor 136. London how houses passe without inrollment 141. 142. Liberty to make Leases 169. Lease for life to three where it was naught 175. Lord of Parliament not appearing shall forfeit 100 l. 193. Lunatick where an Action ought to brought in his name 197. Levant and Couchant is certainly fufficient 198. M. MIstryall the Ven. fac mistaken 17 Mistake of the Iury 18 Misprision of the Clerk amended 26 Monasteries dissolved onely those Regular 39 Mistake by the Court no prejudice 42. Mistriall 7. Missworn fellow Actionable 9. Medietas Linguae where 45. Master chargeable where 64 Misprision of the Clerk amended after tryall 88. Mannor by that name what will passe 155. Mistake of a day of an Act by way of Bar not prejudicial 196. Marshalsey hath no authority to hold plea of Debt except one party be of the houshold 199 Marshalsey no Iurisdiction 199. 200. Master cannot have an Action for the loss of Service if the Servant die of the beating 205. N. NOtice not necessary 10 Non est inventus where the party did escape 12 Nusance where it lyeth 4. Non damnificatus pleaded 7 Noverint for non assumpsit 8. Notice where needfull 46. Nul tiel Record pleaded to a Plea of Outlawry 84. Non damnificatus pleaded 118. Nisi prius amended by the Roll 133 Nonage tryed where it is alledged not where the Land lies 150. 151. non-Non-tenure pleaded 153. Nisi prius the Record amended upon motion 156 Nullum tempus occurrit Regi 166. Negativum praegnans 172. Non residency the Statute 13 El. a generall Law 208. New Asignment where not good 217. Bar to it 236. Nihil dicit 237. 238. Non omittas 240. O ORdinary cannot make a division 32. Ordinary his power 45. Outlawry no Plea where 55. Outlawry in the Testator 55. Originall want of it after verdict no Error 97. Obligation discharged why 98. 99. Originall against four count against three without a Simulcum adjudged naught 130 Ordinary and Patron their severall Rights 202. P. PArdon generall de effect 10. Promise by an Infant not good 11 Papist to a Bishop actionable 12. Proviso implicit where good 14. Perjured knave actionable 15. Proviso 18 19. Pyracy no excuse in an Action of Covenant 21. Plea in abatement 27 in Assise 28. Premunire in a Parson 30. Pleas severall cannot be in a joint debt or contract 30. Proof how far extendible 33 Where required and where not 34. Pardon crimen legitur non tollitur 34. Priviledge from Arrest where not to be allowed 84 Prender and Render the difference 34. 35. Prescription where good 35 Property not altered upon a Scire facias 41. Punishment corporall not to be imposed for the default of a deputy where 45. Proviso Executory and executed the difference 8. Priviledge respective 47 Payment where peremptory 49 Plea made good by verdict 52 Payment when upon demand 52 Pardon generall pleaded 56. Plea to a Bond taken by the Sheriff 58. Payment to the Heir and not to the exceutor where good 64. Priviledge of an Vniversity where not to be allowed 75. Plene adm nistravit no Plea where 77 78. Proprietor sufficient 88. Priviledge of Parl. pleaded 92 Plea naught for want of traverse 98. Primo deliberat shall not be pleadded sans traverse 105. Propriety of goods cannot be in abeyance 132. Prescription and custome do differ how 132. Processe misawarded where helped by the Statute 134. Plea where it shall be in discharge but not in Barr of an obligation 109. Partition Processe in it 156. For whom it lies 157 Partition error in the first Judgement 157. Partition in another Writ was pleaded Presentment of a Clerk by words good 162. Patrons 6 moneths 165. Proprietate probanda 167. Plea naught 173. Pannell of hab corp
H. 6. 3. This priviledge by the canon which gives that shall be taken strictly And so is the opinion of their own expositors see Panormitan Canon 37. So that there is an apparant difference between that and the lands which came to the King by the statute of 31. H. 8. For by that the King is discharged of paiment of tythes and so are his Patentees It seems to me that the construction of the Cannon may be in another course different from the rules of the common law as it was ajudged in Buntings case that a woman might sue a Divorce without naming her Husband very well and 11. H. 7. 9. The pleading of the sentence or other act done in the spiritual Court differs from the pleading of a temporall act done in temporall Courts and 34 H. 6. 14. a Administration was committed upon condition that if the first Administrator did not come into England that he should have the Administration which is against the Common Law for there one authority countermands another and 42 Ed. 3 13. A Prior which hath such priviledge to be discharged of Tithes makes a Feoffment and his Feoffee payes Tithes to the Prior and this was of Lands which were parcell of the possessions of Saint Johns of Jerusalem and upon that he inferred that this priviledge is personall and if it be so it is determined by dissolution of the order as it is determined in 21 H 7. 4. That all Parsonages impropriate to them by the dissolutions are become prsentable and so of these which were annexed to the Templers for these shall not be transferred to Saint Johns though that the Lands are 3 Ed. 1. 11. By Herle accordingly Fitz. Natura Brevium 33 K. and 35. H. 6. 56. Land given in Frankalmaine to Templers and after transferred to Hospitallers of Saint Johns the priviledge of the Tenure is paid and so shall it be in case of Tithes being a personall priviledg that shall not be transferred to the King and to the Statute of 32. H. 8. The generall words of that do not extend to discharge the Land of Tithes though that the Statute makes mention of Tithes if there be not a speciall provision by the Statute that the Lands shall be discharged and this appears by the words of the Statute of 31 H. 8. where the general words are as generall and beneficiall as the words of this Statute and yet there is aspeciall provision for the discharge of the payment of tithes by which it appears that the generall words donot discharge that and so the generall words of 1 Ed. 6. are as larg and beneficiall as the generall words of the Statute of 31 H. 8. And yet this shall not discharge the Land of payment of Tithes and this compared to the Case of the Marquesse of Winchester of a writ of Errour that that shall not be transferred to the King by Attainder of Land in taile for treason by the Statute of 26 H. 8. or 33 H. 8. And so of rights of action and so it was adjudged in the time of H. 8. that if the founder of an Abby which hath a Corrody be attaint of Treason the King shall not have the Corrody and he agreed that the Hospitall of Saint Johns of Jerusalem is a house of Religion for this is agreed by Act of Parliament and the word Religion mentioned in the Statute more then seventeen times and also it seems to him that the Statute of 31 H. 8 shall not extend to that for this gives and establishes Lands which come by grant surrender c. And that shall not be intended those which come by Act of Parliament no more then the statute of 13 Eliz. extends to Bishops 1. and 2. Phillip and Mary Dyer 109. 38. The statute of Westminster the 2. chap. 41. Which gives Contra formam collationis to a common person founder of an Abby Priory Hospital or other house of religion without speaking expresly of a Bishop and yet it seems that this extends to an alienation made in Fee simple or Fee taile by the Bishop 46 Ed. 3. Forfeiture 18. But it is resolved in the Bishop of Canterburies Case 2 Coke 46 that the statute of 31 H. 8. shall not extend to these lands which come to the K. by the statute of 1 Ed. 6. to make them exempt from paying of Tithes and to the Case in 10. Eliz. that is but an opinion conceived and that the Prior hath this priviledge from Rome and that the Farmer shall pay Tithes and the question was in the Chancery and upon consideration of the statute of 31 H. 8. It seems that the Patentee himself shall be discharged as long as by his own hands he tills it and the statute of 32. H. 8. Upon which the state of the question truly consists was not considered and also it was not there judicially in question And to the case of Spurling against Graves in Prohibition consultation was granted for that that the statute was mistaken and so the award was upon the form of the pleading only and not upon the matter and so he concluded and prays consultation Houghton Serjeant to the contrary and he agreed that it is a personall priviledg and if the Order of St. Johns had been dissolved by death that then the priviledg shall be determined and this appears by the Stat. of 2. H. 4. 4. before cyted and also the case of 10. Eliz. Dyer 277. 60. did doubt of that but he relyed upon the manner words of pleading that is that Hospitallers are not held to pay Tithes it is as a reall composition made betwixt the Lord and another Spirituall person of which the Tenants shall take advantage as it is resolved in the Bishop of Winchesters case Also as if a man grant a Rent charge if the Grantee dye without Heir the grant is determined But if the Grantee grant that over and after dyes without Heir yet the Rent continues 27. H. 8. Or if Tenant in tayl grant Rent in fee and dies the grant is void But if he after suffers a recovery or makes a Feofment the Rent continues good till the Estate taile be recontinued as it is resolved in Capels case So here the order of Templers hath been determined by death the priviledg hath been determined but insomuch that the Land was transferred by Parliament to the King this continues Also the words of the Statute of 32. H. 8. are apt not only to transfer all the Interest which the Pryor had in his Lands but also his Priviledges and Immunities to the King and he agreed it is not material if the words Tythes are mentioned in the Statute or not But the word upon which he relyes and which comprehends this case is the word Priviledg which takes away the Law for where the Law binds them to pay Tithes the priviledg discharges them And the words of the Statute are taken in the most large extent that is all Mannors c. Priviledges
But in this case before Attornement the Grantee hath nothing and after Attornement the particuler Estate being granted it shall be drownd in the reversion Harris Serjeant the words of the devise are that his Feoffees and all other Persons which after his Death shall be seised shall be seised to the same uses before declared and of one Acre he hath not any Feoffees for of that the Feoffment was voyd and yet it was agreed that the devise was good as Lyngies Case was in 35. H. 8 cited by Anderson in Welden and Elkintons Case Commentaries 523 b. And he argued that though that when a conveyance may enure in severall courses yet it cannot enure for part in one course and part in another course and for that this devise enures as a devise of Land for one Acre and declaration of the use of the Feoffment foâ—…her Acre for it is agreed in Sir Rowland Haywards Case 2. 〈…〉 a. 6. Coke 18. a. Sir Edward Cleeres Case and also in this 〈◊〉 the devisor hath made expresse declaration that the Land shall passe by the Feoffment and that the Will shall be but a declaration of the use of the Feoffment and for that nothing shall passe by the devise with which the Justices seemed to accord and cited a case to be adjudged in the Kings Bench 40. Eliz. where the Father gives and grants Lands to his Son his heires with warranty and makes a Letter of Attorney within the deed to make Livery and adjudged that that shall not enure as a Covenant to raise a use for that that it appeares by the Letter of Attorney that his intent was that that should enure as a Feoffment and not as any other manner of conveyance see 14 Eliz. Dyer 311. 83. Master Cromwells Case and so it was adjudged accordingly Hillary 8. Jacobi 1610. in the Common Bench Gargrave against Gargrave Katherine Gargrave was Plaintiff in a Replevin against Sir Richard Gargrave Knight and the case was this The Father of Sir Richard Gargrave was seised of divers Tenements called Lyngell Hall in Lyngell Hall and of a Moore called Kingstey Moore in another Town and the Tenants of the said Father of Sir Richard have used to have Common in the said Moore and the said Father so being of that seised demised the said Tenements to the said Katherine Gargrave for her Joynture by these words by the name of Hingell Hall and certaine Land Meadow and Pasture in certainty and with all â—ands Tenements and Hereditaments to that belonging or with that occupied and enjoyed now or late in the Tenure of one Nevill and Nevill was Tenant of the said premises and had Common in Kingsley Moore upon which the question was if the said Katherine by this demise shal have Common in the said Moore or not And Hutton Serjeant argued that the said Katherine shall have Common in the said Moore for he said that the said demise shall be expounded according to the intent of the partie 〈◊〉 as it is agreed in Hill and Granges Case Commentaries 270. b. Where a man makes a Lease for yeares of a house and all the Lands to that belonging and though it is there agreed that Land cannot be appurtenant to a house yet this word appurtenant shall be taken in the effect and sense of usually occupied with the Messuage or lying to the house by which it appeares that the words are transferred from the proper signification to another to satisfie the intent of the parties for it is the office of the Judges to take and expound the words which the common People use to expresse their intent according to their intent and for that shall be taken not according to the very definition insomuch that it doth not stand with the matter but in such manner as the party used them And for that this grant shall amount to a new grant of Common in the said Moor for as it seems common or feeding for Cattell may be granted and passe by the name of Tenements Hereditaments or at least shall be included and comprised within the words Tenements and Hereditaments and so shall be construed as a thing occupied and injoyed with the said Messuages see Hen. Finches Case 39. Coke And it was an expresse endorsment upon the demise that the said Katherine should not have Common in the said Moore but it was agreed by all that this was vaine and idle and nothing worth but he urged that this shall have a favorable construction for that it was for Joynture which shall have as favorable construction as Dower And so he prayed Judgement for the Plaintiff and of the other part Nicholls Serjeant argued that this shall not amount to a new grant for he said that they are not apt words to receive such construction for he said that this is no Tenement or Hereditament no Common but only a Feeding for the Cattell of the Lessee in the wast of the Lessor see 20. Edw. 2. Fitzherbert admeasurement and it cannot passe as a thing used with the said house for that was not in Esse at the time of the grant and there is not any apt word to make a new grant â—nd he cited 〈◊〉 Iudgement in Action of wast between Arden and Darcy where Ardon was seised of the Mannor of Curball and also of Parkhall and makes a conveyance of the Mannor of Curball to divers uses and at this time parcell of the Mannor of Curball was occupied with Parkhall as parcell of that and after made another conveyance of all his Lands in England except the Mannor of Curball And adjudged that the Parke which is used with Parkhall shall not be within the exception Coke saith that it was only feeding and not Hereditament for the Inheritance of both was in the Lessor but if it be granted of feeding it shall be intended the same like feeding that the Tenant hath as if the King grant such Liberties as the City of London hath and that shall be good and so it was adjourned Hillary 8. Jacobi 1610. In the Common Bench. Cannige against Doctor Newman IN an Information upon the Statute of 21 H. 8. chapter 13. Of non-residency it was found by speciall Verdict that Doctor Newman was Incumbent invested in the Rectory of Staplehurst in the County of Kent and that hee was also seised of a house in Staplehurst aforesaid scituate within twenty yards of the said Rectory and that the mansion house of the said Rectory was in good repaire and that Doctor Newman held that in his hands and occupation with his one proper goods and did not let it to any other and that he inhabited in the said Messuage and not in the Parsonage the Statute of 21 H. 8 chapter 13. Provides that every Parson promoted to any Parsonage shall be personally resident and abiding in at and upon his said Benefice and in case any such spirituall Parson keep not residence at his Benefice as aforesaid but absent himself willfully by the space
his Writ and that the eldest Brother hath nothing in the Land Judgement was had against a Defendant in Debt and Capias to satisfie awarded and Non est inventus returned and Scire facias awarded against the Bayl and upon the first Scire facias the principall Defendant yeelds his Body in execution and it was very good for before that the Bayl had no day in Court and in the Kings Bench if the Defendant yeelds his Body upon the second Scire facias it shall be accepted And if a man be Bayl upon a Writ of Error if the Judgement shall not be reversed he shall be in execution againe It was objected by Hutton Serjeant that the Scire facias is against the Bayl to know why the execution shall not be awarded against the Bayl and that ought to be delivered to the Sheiriff before the day of the returne or otherwise it shall be Erroniously awarded and then the party may yeeld his Body to Prison at any time and discharge his Bayl and agreed that Bayl in this Court may be released Accompt doth not lie for any sum certaine Pasch 9. Jacobi 1611 in the Common Bench. John Reyner against Powell See Hillary 8. Jacobi 136. HAughton Serjeant argued that there shall be a good Estate tayl of a Copy-hold and that by the custome after the making of the Statute of Westminster 2. And he agreed that at the Common Law all estates were Fee simple absolute or conditionall and that the estates tayl were created by the Statute of Westminster 2. And do not exclude customary estates as it appeares by Littleton who saith that Tenant at will by copy of Court Roll by custome may be in Fee simple and so of estate tayl and with this agrees many other Authors 15 H. 8. b. Tenant by Copy-hold of Court Roll resolved in the point and that a Formedon in the discender lieth for that and as the Statute of Westminster 2. divides estate tayl and Fee simple So may custome of a Mannor as well as custome make an estate at will which is personall and determines by the death of any of the parties to discend and as well as the custome of London of not moving things fixed is created by custome as well may Formedon be created by Custome and also the Statute is that gives Cui in vita extends to a Copy-hold so the Statute of Limitation as it appeares by Brooke Limitation 5 Ed. 6. And with this agrees also Heydons Case and though that the words are Voluntas Donatoris in the Charter c. Yet the estate tayl may be created by devise So that the Statute shall not have such literall construction and as well as a Lease for a hundred yeares may be within the Statute of 11. H. 7. Which speakes only of discontinuances as it appeares by Sir George Brownes Case 3. Coke So may a Copy-hold estate which is but an estate at will be within the Statute of Westminster 2. and it is confest by the other part by pleading that he was seised in tayl according to the custome of the Mannor and it is not pleaded that he had Issue at the time of the Alienation and the other party claimed by the Alienation the which was not good if he had no Issue at the time of that if he had but Fee simple conditionall and so concluded and praied Judgement c. Dodridge Serjeant of the king saith that the reputation of the estate consists upon two parts first the name secondly the nature of the estate tayl and for both the makers of the Statute of Westminster 2. bad no intention that this should extend to Copy-hold and first for the name which gives the being he cited Fitz. Natura Brevium 12. C. where it is sayd that Copy-Tenants or Copy-holders or Tenants by copy is but a new Terme found for of auncient times they were called Tenants in Villenage or of base tenure as this also appeares by the old Tenures by which it appeares that then they were called and named Tenants which held in Villenage or of base tenure and Bracton booke 2. chap. 8. in the end speakes of that and calls them Villaines Sokemaines and that if such a Tenant will transfer his Tenement let it be delivered into the hand of the Lord or his Steward and he wrote immediately before the Statute of Westminster 2. and agreed with Fitz. Na. Bre. And also Bracton booke 4. fol. 209. Saith that such Tenants have used to Plow the Demesnes of the Lord and calls and names them as before and 4. Ed. 1. He is called Customarius So that Custome doth not make the certainty of his estate if he hath any and he said that 42. Ed. 3. 25. is the first in Law in which is any mention of these Lands and there they are called Neists Lands and 14 H. 4. 323. a. they are called Sokemaines by base Tenure and Lambert calles it Folkland by which and severall names he saith that the basenesse of the Estate appeares And to the estate he saith that originally it was but at the will of the Lord though that it be according to the Custome of the Mannor So that the Lord cannot put him out if he performe the services And the Register doth not respect him for he hath not framed any Originall for him to give him remedy by the Common Law but only in the Court of the Lord though that erronious Judgement be given Also he cannot prescribe but in the name of the Lord as it appeares by 18. Ed. 3. Fitz. prescription that such estates which are incident to Fee simple as Dower not Tenants by the Curtisie cannot be derived out of this without Custome nor that warranted So that his reputation appeares by his name and also by his nature Also he intended that the makers of the Statute of Westminster 2 did not intend that the Statute should extend to this for it is Oppositum in Objecto for Custome is without time of memory And the Statute of Westminster 2. was made 13. Ed. 1. the beginning of which every one knowes Also the Statute of Westminster 2. doth not extend to any Lands but those which the Tenant might have aliened before the Statute But the Copy-holder had not any power to alien for the Lord ought to be his Instrument and hand as Bracton saith to alien transfer he cannot but by the hands of the Lord and it must be restored to the Lord the words of the Statute are The will of the giver in the Charter c. So that the Statute intends such Lands which may passe by Deed and Fine and devise his Deeds and the Deed extends to them for a Fine is Chirograph and devise to be made by copy of Court Roll is not so for that is only of Acts made in the Court of the Lord it cannot be within the Statute for Copy-hold ought to be held of the Lord and Tenant in tayl shall hold of the giver and so
if a Copy-holder be of twenty Acres and the Lord grants Rent out of those twenty Acres in the tenure and occupation of the sayd Copy-holder and name him There if this Copy hold Escheat and be granted againe the Copy-holder shall hold it charged for this is now charged by expresse words Trinity 8. Jacobi 1610. In the Kings Bench. Goodyer and Ince GOodyer was Plaintiff in a Writ of Error against Ince and the Case was this Ince brought an Action of Debt upon an Obligation in the Common Bench against Goodyer and had Judgment to recover and by his execution prayed an Elegit to the Sheriff of London and another to the Sheriff of Lancaster and his request was granted and entred upon the Roll after which went out an Elegit to the Sheriff of Lancaster upon a Testatum supposing that an Elegit issued out to the Sheriff of London which returned Nulla bona and Quod Testatum sit c. That the Defendant hath c. in your County c. upon which Elegit upon this Testatum the Sheriff of Lancaster extended a forme of the Defendants in a grosse sum of a hundred pounds and delivered this to the party himselfe which sold that to another and now the Defendants brought a Writ of Error and assigned for Error that this Elegit issued upon a Testatum where no Writ of Elegit was directed to the Sheriff of London and so this Writ issued upon a false supposall and upon that two points were moved in the Case First As this Case is if this were Error in the Execution or not Secondly Admit that it were Error if the Plaintiff shall be restored to the tearme againe or if to the value in Money and it was moved by Davenport of Grayes Inne that this was no Error and to that he took this difference That true it is when a man brings an Action of Debt in London and hath Judgment that without request of the Plaintiff he is to have his Elegit to the Sheriffs of London where originally the Action was brought and in such Case he cannot have Elegit to the Sheriff of another County without surmise made upon the returne of the first Elegit and the surmise ought to be true or otherwise it is Error but where upon the request the Elegit is granted to both Counties at the first and so entred upon the Roll It seems to him that insomuch that he may have both together that if the surmise be false that this is but a fault of the Clarke which shall be amended and shall be no Error and to that he cyted the Case of 44 Edw. 3. 10. Where an Elegit issued upon a Recognizance of a hundred Markes and the Writ of Extent was a hundred pounds and the Sheriff extended accordingly of the Land of the Defendant and he came and shewed this to the Court and praied that the Writ should abate and a new Writ to the Sheriff that he might have restitution of his Tearme and Thorp said this is but a misprison of the Clark and the Roll is good and he shall have the Land but till the hundred markes are Levied and after this you shall have restitution of the Land which case proves as he conceives that if the Roll warrant a writ in one manner and the Clark makes it in another manner that this shall not be Error and so in this case the Roll warrants an Elegit originally to the Sheriff of Lancaster and though that this is made upon a Testatum this shall not be Error because warranted by the Roll And to the second point he would not speake for if that were no Error the second point doth not come in question Hillary 7. Jacobi 1609. in the Kings Bench. Marsam against Hunter IN Trespasse the case was this Copy-holder of a Mannor within which Mannor the custome was that the Copy-holders should have Common in the wast of the Lord The Lord by Deed confirmes to a Copy-holder to have to him and his Heires with the appurtenances and the point was insomuch that his Copy-hold was now distroied whether he shall have his Common or not And Davyes of Linclones Inne argued the Common is extinct and his reason was that this Common was in respect of his Tenure and the Tenure is distroid Ergo the Common and he cited the case of 5 Ed. 4. fol. ult Where the office of the King of Herraulds was granted to Garter with the Fees and profits Ab Antiquo and also ten pound for the office and there it is resolved if the office be determined the Annuity is determined also and the case in 7. Ed. 4. 22. b. Where an Annuity was granted to John Clark of the Crown and for Tearme of life and after he was discharged of the office and the oppinion of the Justices then was that the annuity was determined and in 19. Ed. 3. Assis 83. 12 Assis 22. A man gives Land to his Daughter and I. S. within the years of marrying in frank-marriage the Husband sues Divorce the marriage being dissolved the Wife from whom the Land first moved shall have the Land againe so in the principall case insomuch that this common was in respect of Tenure the Tenure being distroied the common is gone and this was all his argument and he prayed Judgement for the Plaintiff and another day Brautingham of Grayes Inne seemed that the common remaines for three reasons First of the nature of a prescription and to that there are three manner of prescriptions First personall prescription and in that Inhabitants may prescribe as for a way or matter of ease as it is said in 7. Ed. 4. 15. Ed. 4. and 18. Ed. 4. and 6. Coke Gatwoods case Secondly reall prescription and this is Inherent to the Estate and this is where a man prescribeth that he and all those whose Estate he hath c. Thirdly locall prescriptions an that is where a man prescribes to have a thing appendant or appurtenant to his Mannor and this is so fixed to the Land that whether soever the Land goes the prescription is concommitant unto it and it seemes to him that this common is annexed to the Land by prescription and so locall and cannot be seperated but alwaies shall go with the Land into who soever hands that comes but Dixit non Probant And for this he supposed that the custome of Copy-hold is that the Copy-hold shall discend to the youngest Son if the Copy holder purchase the Free-hold and the Fee-simple of the Copy-hold so that this is made Free-hold this shall discend to the youngest Son so if a Copy-holder by custome is discharged of payment of Tythes in kind so the office of the master of the Rolles hath many liberties pertaining to it and this is granted but Durante placito yet if the King grant that in Fee as he may yet he shall have all the Fees and Priviledges annexed to that and so it seemes to him that
22 Assise 24. 48 Ed. 3. 8. Register 47. And in case that one common person hath any Office which he cannot exercise by a Deputy yet if he be imployed in the Kings service as if he be made Ambassador out of the Realm or other such imployment he may during his absence make a Deputy and this shal not be forfeiture of his Office and an Earl in ancient time was not only a Councellour of the King but by his Degree was Prefectus sive prepositus commitatus as it appears by Cambden 106 107. Comes prefectus Satrapas which is Prepositus comitatus and was in place of the Sherif at this day and when that he was Sherif though that he had the custody of the county committed unto him which was a great trust yet then by the Common Law he might make an under Sherif which was but a Deputy the like Holinsheads Chronicle 463. Amongst the customes of the Exchequer he called the under Sheriff Senescallus which agreed with the Definition before for he held the place of Sherif himself and by the statute of Westminster 8. chapt 39. It is sayd that Vice comes est viccarius commitatus and if a Barony discend upon the Sheriff yet he shall continue Sheriff 13. Eliz Dyer and Britton 43. If a Rybaud strike a Baron or a Knight he shall loose his Land And Tenant by Knights service may execute it by Deputy 7. Ed. 3. Littleton And if it be so in the case of a Sheriff which hath the County committed to him that he may make a Deputy by the Common Law upon that he inferred that the Steward which hath but the Mannors of the King committed to him that he may make a Deputy And also he said that the words in the last clause that is Volentes precipentes that the Officers and the Subjects should be attendant expoundes and declares the intent of the Queen for the words are Omnibus premisses and the Grant of the Office of the Stewardship is one of the premisses and so he concluded upon these reasons that Judgement shall be given for the Plaintiff and that the Grant was good and the Action wel maintainable And oâ— this opinion were Warburton and Foster Justices And Judgement was given accordingly this Trinity Tearm 8. Jacobi And Coke cheife Justice remembred a Report made by him and Popham cheife Justice of England upon reference made to them that this Patent was good and that the Earle of Rutland might exercise this Office by Deputation and he conceived that there were other words in the Patent which were found by the Jury that the said Earle should have the said Office Cum omnibus Juribus Jurisdictionibus c. as full c. as any other Patent hath been had and withall the Appurtenances and it seemed that a former Patentee had power by expresse words to execute that by a Deputy and he conceived though these words Adeo plene c do not inlarge the Estate yet this inlargeth the Jurisdiction of the Officer as in 43. Ed. 3. 22. Grant is made by the King of a Mannor to which an advowson is appendant Adeo plene tam amplis modo forma c. And these words past the advowson without naming that and he said it was adjudged Hillary 40. Eliz. in Ameridithes case where the case was the Queen granted a Mannor Adeo plene intigre in tam amplis modo forma as the Countesse of Shrewshury or any other had the same Manno r and Queen Kathrin had the same Mannor and diverse liberties with it of great value during her life and adjudged that these liberties should passe also by this Patent by these words and so in the principall case if the former Patent had been found also by the Jury and so was the opinion of Popham and him and was certified accordingly FINIS A Table of the Second Part. ARch-Bishops Jurisdiction 1 2. 28. Admiralties Jurisdiction 10 11. 13 16 17. 26. 29. 31. 37. Arbitrement satisfaction what 31. 131. Assumpsit 40 41. 273. Arrianisme one committed for it 41. Assets 47. Almony 36. Apurtenant what shall be said 53 Action sur Case by a Commoner for words 55. 84. 100. 119. 122. Avowry the whole plea 62 63. 102 Agreement what 72 Account 76 Audita Querela 81. 83. 168 Atturnment good by one under age where and why 84 Award void 100 Age not allowed in Dower 118 Administration repealable 119 Accord with satisfaction good plea where where not 131 Attorney ought to finde Baile in an Originall not Bill 134 Action sur Assumpsit 137 Assuâ—psit against an Executor where maintainable 138 Assets in Formedon what 138 Attachment 144. 168 Assent to a Legatee 173 Ayd prayer 191 Attachment for contempt of the Court 216 Accessary null unlesse there is Principall 220 Assignment of an estate suspended 225 Assise of novel Disseisin 229 Abatment of brief per entry 231 232 Abatement de facto and by plea differ in what 235 Agreement and Arbitrement good pleas where 132 Agreement by word to keepe backe tythes 17 Admiralls Commission for measuring of Corne 29 Administration during minority of c. 83 Atturney brings Debt for Trees 99. Arbitrement 130. 131. Arrest of Judgment 167. Acts what to make an Executor de seu tort 184. Attachment of Priviledge for an Estate against the Marshall c. 266. Assise where it may lye sans view 268. Assise the Recognitors challenged ibid Ajournment of the Tearm 278. Annuity or Writ of Covenant where 273. Arbitrement submission and revocation 290. Approvement of Common 297. Account 308. Award submission 309. Arbitrement 310 Arbitrement who it binds 323. Assise del Office 328. B BIshop not displaceable 7. Baron alone cannot sue for not setting forth Tithes without the feme proprietory 9 Ballast granted to Trinity House a Monopoly 13. Baron and Feme joyn where 66. Baron Judgment against an Executor 83 Baron how chargeable pur sa feme 92. 93. 95. Bar in trespass 121. By-Laws whom they bind 180. To what extended 258. Baron and feme take by intirity where 226. Barwick whether part of England or Scotland 270. Bayle 293 Banckrupt actionable 299. C CHase an action not to be divided 56 Cui in vita of Copy-hold 79. Custome for pound breach 90. Common Recovery 16. Copiholder shall hold charged where 208. Confirmation to a copiholder destroys common 209 210. Consultation after it no Prohibition grantable upon the same Libell 247. Cape grand Petit 253 Cause of a commitment traversable 266. Count in trespass after the teste del Breife 273. Covenant to pay Rent 273 Continuance Ibidem Chellenge 275 Customes of London argued by the Justices 284. 285. 286. Certiorari 312. Capias ad satisfaciendum no satisfactory execution 312. 313. 314. 315. 316. Copy-hold at common Law 44. Creditor may sue both heireand Executor 97. Court of Equity not proper after Judgment 97. Copyhold intayled 121. Covenants direct and collaterall how they differ 136.
for the matter it is not within the Statute and then for the persons also he intended that it is not within the Statute and this appears by the words of the Statute of 28. Edw. 1. Articuli super Chartas and to that 10. H. 6. 130. it is adjudged that Judgement in such case there given is void and Coram non Judice so 7 H. 6. 30. expresses the cause to be insomuch that none of the parties are of the houshold of the King 4 H. 6. 8. 19 Edw. 4. 8. 5. Edw. 4. 32 H. 6. Rot. 27. And he cyted also Michelburns Case to be adjudged upon a Writ of Error in the Kings Bench 38 Eliz. That they could not tender a Plea in Trospasse for Trover and Conversion if none of the parties were of the Kings house and further he said that when a Court hath Jurisdiction and errs in matter of proceedings or in Law there the Execution made by force of their Process shall be lawfull But where the Judgement is void by default of Jurisdiction as in this Case there it is otherwise as 10 H. 6. 13. Recovery of Land in the Spirituall Court is void so Formedon commenced Judgment given upon that before the Judges of Assises void So 36 H. 6. 32. Recovery of Land in Wales in this Court is void and 8 Edw. 4. 6. Recovery of Land in ancient demesne is avoidable by Writ of Deceipt But in the other cases before the Judgment and Recovery is absolutely void and Coram non Judice for default of Jurisdiction So in 9 H. 7. 12. b. Recovery of Land in Durham Chester or Lancaster here is void for the same cause And in this case also the said Statute makes that void by expresse words see the statute of Articuli super Chartas Chap. 3. And to the case of 14 H. 8. before cyted of Warrant awarded by Justice of Peace he agreed that insomuch that the Justice of Peace had Jurisdiction of causes of Felony and erred only in the forme and manner of his proceedings and so in all the other cases which were put of the other part And also hee agreed that a Writ of Error may be well maintained if such Judgement which is void as it was in Michelburns case for the party may admit the Judgment to be but voidable if he will And to the exceptions to the pleading that is that the authority is not prosecuted 1 Postea that is such a day which was before the Judgment and yet it seems good and that in the first the authority was very well prosecuted in the 2 Postea was sufficient and the other words that is such a day is but surplusage and so he concluded and prayed Judgment for the Plaintiff and it was adjourned Michaelmas 1611. 9. Jacobi In the Common Bench. Peto against Checy and Sherman and their Wives Triâ— 9. Jacobi Rot. 1151. IN Trespasse and Ejectione firme the Defendants pleaded that one of the Defendants made agreement with the Plaintiff for the said Trespasse and Ejectment with satisfaction and demands Judgment if action upon which the Plaintiff demurred in Law and it was argued by Nicholls Serjeant for the Plantiff that the agreement was no plea though it be said by Keble in the 11. H. 7. 13. That though it be a Plea in Ravishment of Ward quare Impedit and quare ejecit infra terminum insomuch that they are actions personall But Wood denyed that insomuch that Inheritance is to be recovered and in Ejestione firme tearm shall be recovered and for that it shall not be spoken and of this is Wood expresly in the 13. H. 7. 20. b. That in Ejectione firme agreement shall not be a plea insomuch that the tearm is to be recovered which is the thing in demand And there also it is agreed that in Waste brought against Lessee for yeares in the Tenet agreement is good plea and so Vavasor intended if it be in the Tenet but not if it be brought against Lessee for life And also he intended that by Recovery in Ejectione firme more shall be recovered then the tearm only for by that the reversion shall be also reduced and for that the Inheritance is drawn in question and it is said in 11. H. 7. 13. that it shall not be a plea in Assise insomuch that there the Free-hold is to be recovered and by the same reason hee intended that shall be no plea insomuch that more is to be recovered then in Assise for there the Tenant only shall recover the free-hold and his damages but here the Tearm and the Inheritance also are reduced and revested And this is the reason also which is given in 11. H. 7. 13. b. by Fisher That if a man make a Lease for years rendering Rent and after brings Debt for the Rent behind the Defendant cannot wage his Law notwithstanding that the action is personall But this is more high in his nature as it is there said and yet there nothing shall be recovered but only damages for which a man may have satisfaction Also he intended that it was not well pleaded that is that such agreement was had between the Plaintiff and one of the Defendants and betwixt those shall be intended those two only and also Ipsum and Alios by his commandâ—ment and doth not shew that this was made by the other two by his commandement and so he concluded and prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant that the Plea is good and that the nature of the Action is only Trespasse by force and arms and differs from a Quare ejecit but Ejectione firme differs from predict infra terminum and lyes against the immediate Ejector but Quare ejecit lyeth against him which hath title as he in reversion 7 H. 4. 6. b. Ejectione firme was brought by Executors of Land let to their Testator for years upon outing of the Testator by the statute of 4 Edw. 3. Chap. 6. which gives action for the Executors of goods taken out of the possession of their Testator and it seems to him also that proces of Outlawry lyes in an Ejectione firme but in Quare ejecit infra terminum only summons So it is 11. H. 7. 13. There is a great difference between Waste and this for there the Process is Distress and other speciall Process But so is it not here but only the Process which is in other generall actions of Trespasse and so is the expresse opinion of Keble in 11. H. 7. 13. That in ravishment of Ward Quare Impedit and quare ejecit infra terminum that agreement is a good plea and yet all these trench upon the Realty and in ejectione firme if the tearm expire hanging the action this shall not abate the Writ but the Plaintiffe shall have Judgement for his damages otherwise in a Quare ejecit infra terminum And it was resolved 20 Eliz. That if an ejectione firme be brought at the common Law of Lands in
ancient Demesne that this shall not alter the tenure insomuch that it is meerly personall and the damages are the principall which are to be recovered and in 21 Edw. 4. 10. b. the difference is shewed between ejectione firme and quare ejecit infra terminum for one lyes against the Lessor or other Ejector immediately and the other lyes against the Feoffee of the other immediate Ejector and the first is by force of armes and the other not and it alwayes lyes against him that is in by Title and the first against him which is the wrong doer and hee intended that the agreement with one of these Defendants is good for it is satisfaction and discharges the action as release the which every one which hath it may plead and here it is pleaded with satisfaction that is obligation upon which the Plaintiff may have action and so he concluded and prayed Judgement for the Defendants Wynch Justice argued this case notwithstanding that hee had not heard any argument at the Barr this being the first case that he argued after he was made Justice of this Court and he delivered his opinion that the agreement was a good Barre and he said that the difference is where the thing to be recovered is in the Realty and where it is in the Personalty as it is agreed in Blakes Case 6 Coke 43. b. So that here the only question is if this action be in the Realty or in the Personalty and it seems to him that it is in the Personalty and that it is of the nature of Trespass and the tearm is not anciently to be recovered as it is 6. R. 2. Fitz. Na. Bre. and it is within the statute of 4 Edw. 3. Chap. 6. which gives action to Executors for goods carryed away in the life time of the Testator as it is 7 H. 4. 6. b. And to objection that ancient Demesne is a good plea and for that is in the Realty and hee said and so it is in Accompt and Accompt is not in the Realty and the reason why it shall not be a Barr in Assise is in so much that there the Free-hold shall be recovered but this fails here so in Waste also this toucheth the Inheritance but here the Inheritance doth not come in question but the tearm only and it doth not appeare to the Court that it concerns Inheritance for it may be betwixt the Lessor or another which claims under him and the Lessee And if a Husband which hath a tearm in right of his Wife submits himself to Arbitrement this shall not bind the Wife but shall bind the Husband and shall be a Barr if the Wife hath not Interest and so he concluded that Judgment shall be given for the Defendants and that the agreement is a good Barr. Foster Justice intended that the agreement is a good Barr in an Ejectione firme c. And it seems that it is no question but that the action is personall and yet hee agreed that ancient Demesne is a good plea. So in debt receipt of part hanging the Writ abates all the Writ And 21 Ed. 4. 10. b. Two Tenants in Common were of a Tearm and 7 H. 4. 6. b. Executors shall have an action upon Entry made in the time of their Testator by the statute of 4 Edw. 3. Chap. 6. and in this the Plaintiff shall recover his Tearm but he denyed that the reversion is reduced by the recovery nor revested in the Lessor till the Lessee enter And to the Objection that the Realty and Inheritance may come in question in this that is not to the purpose for so it may in an action of Trespasse And he intended there is no difference between agreement and Arbitrement and agreed that none of those is a plea where the Inheritance or Free-hold comes in question And he conceived that Arbitrement for free-hold is not good unlesse the submission be by Deed indented for by Obligation with Condition is not sufficient 11 H. 4. 44. b. and it is not in difference 14 H. 4. that in ravishment of ward submission may be without Deed insomuch as it is in the personalty and he intended that there is no difference between that and Ravishment of Ward and Ward is but Chattâ—ll so is tearm which may be sold by word as well â—s the possession may be sold by word so may the right of that be extinct by word And as if a may be bound to pay a certain summe of money at a certaine day and the Obligee accept parcell in satisfaction before the day and that is very good So in this case acceptance of a summe of lesse value may be a satisfaction of such personall thing 4 H. 8. Dyer 1. 8 Edw. 6. Dyer 19 H. 6. 9 H. 7. And so he concluded that for that nothing is to be recovered but Chattell that for that the agreement shall be good plea. Warburton Justice agreed that the agreement should be good in Ejectione Firme insomuch that this is meerely personall And he argued that it is no Plea in assise insomuch that this is reall and there the Free-hold is to be recovered and this is the reason that waging of Law lieth in Debt upon arbitrement insomuch that the seale of the Arbitrators is not annexed unto it and for that to him it is but only matter in Deed 13. Ed. 4. And he intended that agreement with satisfaction is as much as Arbitrement for a personall thing cannot be satisfaction for a reall thing and that is the cause that it cannot be a Barr in Debt upon arrerages of accompt insomuch that that is founded upon Record and is a thing certaine And in wast it is no Plea insomuch that this is a mixt Action if it be against a Lessee for life otherwise if it be against a Lessee for yeares for a Tearme is taken in 7. H. 4. 6. b. to be within the word Goods and an Executor may have an Action upon that of goods carried a way in the life of the Testator And though that the Entry abate the Writ yet this doth not prove that it is more then a Tearme and though that the Tearme determine hanging the Writ this shall not abate the Action but the Plaintiff shall recover Dammages and in Ravishment of Ward Summons and Severance lies and the Body of the Heire shall be recovered and so in Quare Impedit Summons and Severance lies and the presentment shall be recovered and Dammages and yet the principall is but presentmemt which is but a Chattell and for that agreement shall be a Barr and so he concluded that Judgement shall be given for the Defendant and that the agreement is a good Plea Coke cheife Justice agreed that the agreement is a good Plea he thought that that savered of Realty for that that the Tearme is to be recovered and of the personalty in respect of the Dammages which are to be recovered and that in all Actions where money or Dammages