Richard he made assurance by Fine of his Lands being 174 l. a year viz. Of part therof of the value of 123 l. a year of which part was holden of the Queen by Knights Service in Capite to the use of himself for his life and after his decease to the use of the said William and Margaret and the Heirs of the body of the said William begotten on the body of the said Margaret and for default of such Issue to the use of the right Heirs of the said William And of the residue therof being also holden in Capite of the Queen to the use of himself for his life and after his decease to the use of the first Issue Male of the said Richard and to the Heirs Males of his body and then to other Issues of his body and for default of such Issue to the said William and Margaret and the Heirs of the body of the said William on the body of the said Margaret lawfully begotten and for default of such Issue to the right Heirs of the said William with this Prouiso That it shall be lawfull for the said Richard to make a Joynture to his wife of the Lands limited to his Issue Males and for making of Leases for 21. years or three lives for any part of the said Land rendring the ancient Rent except of certain parcels and that William died without Issue and that Gilbert Littleton was his Brother and Heir and that the said Margaret married the said George Littleton youngest brother to the said William which are yet living And that the said Richard married Dorothy and made her a Joynture according to the Proviso And that the said Richard had Issue Iohn Smith and died the said Iohn being his Son and Heir and within age After which a Melius inquirendum issued by which it was found that the said Margaret was the Daughter of the said Richard and that the said Land was of the value of 12000 l. at the time of the assurance And how much of the Land shall be in ward and what Land and what the Melius inquirendum makes in the case was the question put to the two chief Iustices Popham and Anderson who agreed that the Queen now shall have the third part as well of that which was assured to William and Margaret immediatly after the death of the said Richard as of that which was limited to Dorothy for the life of the said Margaret for although money were paid yet this was not the only consideration why the Lands were assured but the advancement of the Daughter and now by the surviving of the said Margaret shee shall be said to be in the whole which was assured to her by her Father and for her advancement and the Land as it appears was of greater value then the money given and may as well be thought to be given for the Remainder of the Fee And agreeable to this was the case of Coffin of Devonshire about the beginning of the Raign of the now Queen which was that the said Coffin for moneys paid by one Coffin his Cosin having but Dâ—ughters himself conveyed his Land to the use of himself and his wife and to the Heirs Males of his body and for default of such Issue to the use of his said Cosin and his Heirs for which his said Cosin was to give a certain sum of money to the Daughters for their marriage Coffin dies his said Daughters being his Heirs and within age and were in ward to the Queen the Lands being holden by Knights Service in Capite And the third part of the Land was taken from the wife of Coffin for the life of the said wife if the Heirs continue so long in Ward And it was also agreed by them and the Councell of the Court that the Melius inquirendum was well awarded to certifie that the said Margaret was the Daughter of the said Richard of which the Court could not otherwise well take Conusance for they thought that it was not matter to come in by the averment of the Attorney-generall as Dyer hath reported it But now by the Statute it ought to be found by Inquisition and being a thing which stands with the former Inquisition it ought to be supplied by the Melius inquirendum for the same Statute which gives the Wardship in case where Land is conveyed for the advancement of the Wife or Infants or for the satisfaction of Debts and Legacies of the party by the implication of the same Statute this may be found by Inquisitton and if it be omitted in the Inquisition it ought to be found by a Melius inquirendum but not to come in by a bare surmise And therfore if in the Inquisition it be found that the Ancestor had conveyed his Land by the Melius inquirendum it may be found that it was for the payment of his Debts or Legacies or that the party to whom or to whose use it was made was the Son or Wife of the party that made it and that by the very purport of the Statutes 32. 34 H. 8. as by Fitzherbert if it be surmised that the Land is of greater value then it is found a Melius inquirendum shall issue and so shall it be if it be found that one is Heir of the part of the Mother but they know not who is Heir of the part of the Father so if it be not found what Estate the Tenant had or of whom the Land was holden so upon surmise made that he is seised of some other Estate or that he held it by other Services by Fitzherbert a Melius inquirendum shall Issue and upon this order given it was decreed accordingly this Term. Morgan versus Tedcastle 4. IN the same Term upon matter of Arbitrement between Morgan and Tedcastle touching certain Lands at Welburn in the County of Lâ—ncoln put to Popham Walmesley and Ewens Baron of the Exchequer Wheras Morgan had granted to Tedcastle a 100. acres of Land in such a field and 60 in such a field and 20. acres of Meadow in such a Meadow in Welburn and Hanstead in which the acres are known by estimations or limits there be shall take the acres as they are known in the same places be they more or lesse then the Statute for they passe as they are there known and not according to the measure by the Statute But if I have a great Close containing 20. acres of Land by estimation which is not 18. And I grant 10. acres of the same Close to another there he shall have them according to the measure by the Statute because the acres of such a Close are not known by parcels or by meets and bounds and so it differeth from the first case And upon the case then put to Anderson Brian and Fennor they were of the same opinion Quod nota Humble versus Oliver 5. IN Debt by Richard Humble against William Oliver for a Rent reserved upon a Lease for years the case was
And if this doth not passe nothing can passe which was in the Tenure of the said Brown because he had nothing in the places comprised in the Patent But it was agreed by all the Court that it shall not passe by the said Patent in this case for the word illa is to be restraind by that which follows in the Patent where it depends upon a generality as here and that it refers but to that in Wells as the liberty of that which was parcell of the possessions of the said Hospitall and in the Tenure of the said John Brown And if it were not of these possessions or not in Wells c. or not in the Tenure of the said John Brown it shall not passe for the intent of the King in this case shall not be wrested according to the particular or the value which are things collaterall to the Patent but according to his intent comprised in or to be collected by the Patent it self And Popham said that by Grant of omnia terras Tenementa Hereditamenta sua in case of the Queen nothing passe if it be not restraind to a certainty as in such a Town or late parcell of the Possessions of such a one or of such an Abbey or the like in which cases it passeth as appeareth by 32 H. 8. in case of the King But if it be Omnia terras tenementa sua vocat D. in the Tenure of such a one and in such a Town and late parcell of the possessions of such a one there albeit the Town or the Tenant of the Land be utterly mistaken or that it be mistaken of what possessions it was it is good for it sufficeth that the thing be well and fully named and the other mistakes shall not hurt the Patent And the word of Ex certa scientia c. will nof help the Patent in the principall case And the case of 29 E. 3. is not to be compared to this case for it was thus The King granted the Advowson of the Priory of Mountague the Prior being an Alien to the Earl of Salisbury and his Heirs for ever And also the keeping and Farm with all the Appurtenances and Profits of the said Priory which he himself had curing the War with the keeping of certain Cellâ— belonging to the said Priory the said Earl died William Earl of Salisbury being his Son and Heir and within age wherupon the King reciting that he had seised the Earls Lands into his hands after his death for the Nonage of the Heir he granted to the said Earl all his Advowsons of all the Churches which were his Fathers and all the Advowsons of the Churches which belong to the Prior of Mountague to hold untill the full age of the said Heir quas nuper concessit prefat Comiti patri c. In which case although the King had not granted the Advowsons to the said Earl the Father aforesaid by the former Patent because no mention was of the Advowsons therof yet they passe by this Patent notwithstanding that which follows after to wit and which he granted to the Father of the Grantee But there it is by a Sentence distinct and not fully depending upon the former words as here to wit Omnia illa Messuagia c in Wells in the Tenure of the party parcell of the Possessions of such an Hospitall or Priory Quod nota and the difference And because the Defendant claimed under the first Patent and the Plaintiff by the latter Patent it was agreed that the Plaintiff should recover Which you may see in the Kings Bench. Harrey versus Farcy 7. IN an Ejectione firmae brought by Richard Harrey Plaintiff for the Moyety of certain Tenements in North-petherton in the County of Somerset upon a Lease made by Robert Bret against Humfrey Farcy Defendant upon not guilty and a speciall Verdict found the case appeared to be this to wit That Robert Mallet Esquire was seised of the said Tenements in his Demesne as of Fee and so seised demised them to John Clark and Elianor Middleton for term of their lives and of the longer liver of them after which the said Tenements amongst others were assured by Fine to certain persons and their Heirs to the use of the said Robert Mallet for term of his life and after his decease to the use of John Mallet his Son and Heir of his body and for default of such Issue to the use of the right Heirs of the aid Robert Mallet After which the said Robert Mallet having Issue the said John Mallet Christian and Elianor Mallet died the said John Mallet then being within age and upon Office found in the County of Devon for other Lands holden of the Queen in Capite by Knights Service was for it in Ward to the Queen Afterwards the said John Mallet died without Issue during his Nonage and the Lands aforesaid therby descended to his said two Sisters to whom also descended other Lands in the County of Devon holden of the Queen in Capite by Knights Service conveyed also by the same Fine in like manner as the Lands in North Petherton the said Christian then being of the age of 22. years and the said Elianor of the age of 15. yeares upon which the said Christian and Elianor 12. Novemb. 31 Eliz. tendred their Livery before the Master of the Wards and before the Livery sued the said Christian took the said Robert Bret to husband and the said Elianor took to husband one Arthur Ackland after which in the Utas of the Purification of our Lady 32 Eliz. the said Robert Bret and Christian his wife levied a Fine of the said Tenements in North-petherton amongst others to George Bret and John Pecksey Sur conusance de droit come ceo que ils ont de lour done by the name of the Moyety of the Mannor of North petherton c. with warranty against them and the Heirs of the said Christian against all men who tendred it by the same Fine to the said Robert Bret and Christian and the Heirs Males of their bodies the remainder to the Heirs Males of the body of the said Christian the remainder over to the right Heirs of the said Robert Bret which Fine was engrossed the same Term of S. Hillary and the first Proclamation was made the 12th day of February in the same Term the second the first day of June in Easter Term 32 Eliz. The third the 8th day of July in Trinity Term next And the fourth Proclamation was made the 4th day of October in Michaelmas Term next after And the said Christian died without Issue of her body The 9th day of February 32 Eliz. between the hours of 3. 7. in the afternoon of the same day And the 22. of March 32 Eliz. the said Robert Bret by his writing indented dated the same day and year for a certain summ of money to him paid by the Queen bargained and sold gave and granted the said Teuements to the
be avoided and in the same manner here But Popham took a diversity where the Possession or the Estate of the Queen is determined and where not for where the Estate is determined there the Subject may enter into the Land without Office or ouster le main But where the Possession continues there the party shall not come to it unlesse by petition Monstrans de droit officio or the like and therfore hee said that if the Queen had an Estate pur auter vie or depending upon any other Limitation if it be determined according to the Limitation the party who hath interest may enter so in the case of the Devise put before And if a Lease be made for life the Remainder in Tail the Reversion in Fee and he in the Remainder in Tail levy a Fine Sur conusance de droit come ceo que il ad de son done to a stranger with proclamations according to the Statute and afterwards the stranger convey the Remainder to the Queen her Heirs and Successors and after the Tenant for life dies and after he in the Remainder in tail dies without Issue now may he in the Remainder in Fee enter because the Estate of the Queen is determined But here the Queen hath a Fee-simple in her self but determinable upon the Estate-tail which yet remaineth which Fee-simple in Reversion cannot be divested out of the possession of the Queen but by matter of Record of so high nature as it is in her to wit by Petition Monstrans de droit or the like As if a Reversson or Remainder be alienated in Mortmain the claim of the Lord sufficeth therâ— to vest the Reversion in the Lord for the Alienation but if the Reversion or Remainder of which such a claim was made be conveyed to the King his remedy is now by Office Monstrans de droit or Petition for claim will not now serve him for this shall be to divest the possession out of the Queen which by such means cannot be done no more then where a Reversion or Remainder is granted to the Queen upon Condition but he ought to have an Office to find the performance of it if it be to be performed by matter in pais and without Monstrans de droit or otherwise it shall not be divested out of the Queens possession yet in the case of a common person a claim will divest it out of them but not so of the Queen And these cases Gawdy agreed but he conceived that in the case in question the claim made determines the Estate of the Queen which is made by means of the Fine upon the Statute And Popham denied the case put in 7 H. 6. to be Law as it is put upon the opinion of Strange there for it is cleer that the claim there does not divest any possession which was in the King by means of the Wardship and if this be not therby defeated the claim does not help the Disseisee against the Descent and this appeareth fully by Littleton who saith so of a Claime which avoids a Descent to wit that it ought to be such upon which the Disseisee may upon every such Claim made have an Action of Trespasse or Assise against the Dissessor or him who is in possession if he continue his possession after such Claim made which cannot be in this case where the possession is in the King which cannot be defeated by such a Claim And in the Lord Dyer where the Feoffee or Mortgagee of Lands holden of the Queen in Capite by Knights Service died before the day of Redemption his Heir being within age wherby upon Office found the Queen had the Wardship of the body and land of the Heir after which the Mortgagee at the day of redemption made payment and of this also an Office was found yet he could not enter either before or after Office but upon Monstrans de droit therupon he had his Ouster le main And the reason why a Claim shall serve in this case between common persons is because that by such Claim the thing it self is devested out of him who had it before and therby actually vested in him who made the claim As where a Villain purchase a Reversion by the Claim of the Lord the Reversion is actually in him as it is of a Possession by Entry But where he is put to his Claim to devest any thing out of a common person he is put to his Suit to devest it out of the Queen Aad to say that Bret should not take advantage of this Conveyance made to make it good by the Fine I think the Law to be clear otherwise as to this point for the Statute of Fines was made tor the security of Purchasors and Possessors of Land and therfore taken more strongly against them who pretend Right or Title and for the greatest advantage that may be for the Possessors of Lands and therfore the Possessor by what ever means he can may make his Fine to be forceable And therfore the Fine upon this Statute differeth much from a Fine at Common Law for where at Common Law an Infent being a Disseisor was disseised by one who levies a Fine and the year and the day passe without claim of the first Disseisee now was the first Disseisee barred yet if afterwards the Infant who was not bound by the Fine enter the first Disseisee may enter upon him because that by this entry the Fine at Common Law was utterly defeated But now by the Statute such a Fine being levied with Proclamations the first Disseisee not pursuing according to the Statute is barred for ever And although the Infant enter at full age and undoes the Fine as to himself yet this Fine remains alwaies to bar the first Disseissee and makes that the Infant hath now Right against all the world and so now takes advantage therof And this is the intent of the Statute for the repose of Controversies and Suits and the quiet of the people And if I procure a Fine to be levied on purpose to bar another of his Action which he may have against me for the Land yet I shall take advantage of this Fine and the other shall have no advantage against me because of this Covin for if this should be admitted it will countervail the benefit which is intended to be by means of the Statute of Fines And if a Disseisor enfeoffee another upon Condition to the intent that a Fine with Proclamations shall be levied to the Feoffee to bar the Disseisee and after the Disseisee is barred the Disseisor enter for the Condition he shall yet take advantage of the Fine against the Disseisee And Popham put a case which was in this Court 23 Eliz. upon a speciall Verdict which was between Okes Plaintiff upon the Demise of John late Lord Sturton of Cottington which was this The Lord Sturton was Tenant for life of certain Lands in Lighe in the County of Somerset the remainder in Tail
Issue a Son which selleth this Remainder and afterwards I. S. dyed this Son being his Heir notwithstanding his Sale he shall have this Remainder not his Grantee because it was not in him at the time of his Grant but by a matter which cometh Ex post facto to wit the death of his Father and afterwards Iudgment was given in the first case that the Grantee shal have the term granted to him by the Husband and that the Wife shall not have the term during this Leese Hunt Versus Gateler Mich. 34. and 35 Eliz. in Commun Banco IN a Replevin between Hunt Plaintiff and Gateler Avowant in the Common Pleas which was adjorned for difficulty into the Exchequer Chamber the Case was thus Tenant in tail Remainder in Fee he in Remainder in Vide this case Cook lib. 1. 61. by the name of Capeâ—s case Fee grants a Rent-charge in Fee out of the same Land to begin after the Estate tail determined Tenant in Tail suffer a common Recovery with a Voucher over to the use of the sayd Hunt in Fee and dyed without Issue inheritable to the intail and whether Hunt shall now hold the Land charged with the Rent was the question and after that it had long depended and was many times argued in the Common Pleas and Exchequer Chamber at Hertford Term it was at last resolved by all the Iustices and Barons unanimously that the sayd Rent charge wss gone by the Recovery although the Estate tail was expired because that he which is in is in under this Intail And therefore Popham sayd suppose thâ—t the Tenant in tail himself before the Recovery had granted a Rent charge out of the same Land or had made a Lease for yeers or had acknowledged a Statute all those had been good and to be executed against him which cometh in under the Recovery notwithstanding that the Estate tayl had been determined for want of an heir inheritable to the intail for he which recovereth cannot lay that he against whom he recovered had but an Estate in tail and if his Lease remain yet good as all agreed it did how can the Lease a Rent granted by him in the Remainder be good also for the one and the other cannot stand together and therefore all the Leases Charges or Statutes acknowledged or made by him in the Remainder are gon and avoided by the Recovery had against Tenant in tail To which opinion all the other agreed and Popham sayd further That he in the Remainder upon an Estate tail cannot by any means plead to defend his Remainder unless the Tenant will as by vouching of him and therefore shall be bound by the Act of Tenant in Tail where the Estate it self is bound as here it is by the Voucher and then they which come in by him in the Remainder by way of Lease Charge or Statute which are not so much favoured in Law as Tenant in tail himself be in better condition then he in the Remainder himself is for he in the Remainder upon an Estate tail cannot put more into the Mouth of the Lessee or Grantee to defend their Estates then he himself could have to defend his Remainder and this is the reason that such a Termer or Grantee shall never falsifie the Recovery had against Tenant in tail as the Grantee or Termer shall do which cometh in under Tenant in tail against whom the Recovery was had for there as the Tenant in tail may plead to defend his Possession and Estate so may his Termer or Grantee of a Rentcharge do for by the Demise or Grant made the Tenant in tail hath put all the Pleas into their mouthes for their Interests which he himself had to defend his Right and Possession which they may plead for the time to defend their Possessions and Rights as well as the Tenant in tail himself may do and this is the reason that such may falsifie Recoveries against their Lessors or Grantors if they be not had upon the meer right Paramount which he that cometh in by such a Remainder as before cannot do for such a one in Remainder cannot be received to defend his Right but his mouth is meerly foreclosed to do it and by the same reason are all those which come in by such men foreclosed to defend their Interests or Estates and upon this Audgement was given in the same Tearm in the common Pleas. Gibbons versus Maltyard and Martin IN an Ejectione firmae brought in the Kings Bench by John Gibbons Vide this case in Cook lib. 8. 130 Thetford Scholies case Plaintiff upon a Demise made by Edward Peacock the Son of Lands in Croxton in the County of Norfolk against Thomas Maltyard and John Martin upon a speciall verdict the case appeared to be thus to wit that Sir Richard Fulmerston Knight was seised of the sayd Lands amongst others holden in soccage in his Demesne as of Fee and being so seised by his last Will in Writing made 9 Eliz. Ordained that a Devise shall be made by his Executors that a Preacher shall be found for ever to preach the Word of God in the Church of Saint Maries in Thetford four times in the year and to have for his Labour ten shillings for every Sermon And further he devised to his Executors and their heirs certaine Lands and Tenements in Thetford aforesaid to this intent and upon this condition that they or the Survivor of them within seven years after his decease should procure of the Queens Highness to erect a free Grammar School in Thetford for ever to be had and kept in a house by them to be erected upon part of the sayd Land that they shal assure three of the said ienements for the house and Chamber of the Schoolmaster and Vsher and their Successors for ever and for the other tonement that they shall make an assurance of it for the Habitation of font poor people two men and two women for ever And for the better maintenance of the sayd Preacher Schoolmaster Vsher and Poore people he devised amongst others his sayd tenements in Croxton to his Executors for ten years for the performance of his Will and after this he devised them to Sir Edward Cleer and Frances his Wife the Daughter and Heir of the sayd Sir Richard and to the Heirs of the sayd Sir Edward upon Condition that if the sayd Sir Edward his Heires or Assignes before the end of the sayd ten years shall assure Lands or Tenements in possession to the value of five and thirty pounds a year to the sayd Executors or the Survivor of them their Heirs and Assignes or to such persons their heirs or Successors as his sayd Executors or the Survivor of them shall name or assigne for and towards the maintenance of the sayd Preacher Schoolmaster and Vsher in the sayd School house c. and for the releif of the sayd poor people in the one of the sayd houses according to the Ordinance as he
there which to their Office of Sheriff appertaineth or any waies to intermeddle with it except only for the Sheriff of the County of Glocester to hold their County-Courts as is aforesaid And that the Major Aldermen of the said Town for the time being their Successors having power and authority to enquire here determine all things which Iustices of P. or Iustices assigned to hear determine Trespasses and Misdemeanors within the County of Glocest before this time have made or exercised And that the Iustices of Peace of him his Heirs or Successors within the said County of Glocester should not intermeddle with the things or causes which belong to the Iustices of Peace within the said Town c. And upon this Charter divers things were moved by Sir William Periam Knight now chief Baron of the Exchequer before his going into the Circuit 1. Whether by the saving of the Charter they have sufficient power reserved to them to fit within the Town being now exempted from the said Town of Glocester to enquire there of the Felonies done in the said County of Glocester And so for the Assises and Nisi prius taken there of things made in the County of Glocester Then if the the Sheriffs may execute their Warrants made there at the time of the Assises or Goal-delivery notwithstanding the exemption given to them by the Patent And it was agreed by all the Justices that the saving in the Patent is sufficient for the Iustices of Assise and Goal-delivery to sit there for the things which happen within the County of Glocester for as the King may by his Letters Patents make a County and exempt this from any other County so may he in the making of it save and except to him and his Successors such part of the Iurisdiction or priviledge which the other County from which it is exempted had in it before As in divers places of the Realm the Goal of a Town which is a County of it self or which is a place priviledged from the County is the Goal of the County and the place where the Assises or Goal-delivery is holden is within the County of the Town and yet serve also for the County at large as in the Sessions Hall at Newgate which serves as well for the County of Middlesex as for London and yet it stands in London but by usage it hath alwaies been so and nothing can be well prescribed unto by usage which cannot have a lawfull beginning by Award or Grant and this by the division of London from Middlesex at the beginning might be so And so the Goal of Bury c. And although that the words are saving to him and his Heirs yet by the word Heirs it shall be taken for a perpetual saving which shall go to his Successors which is the Queen and the rather because it is a saving for Iustice to be done to the Subjects which shall be taken as largely as it can be And albeit the expresse saving for the Sheriff is but for to hold his turn yet in as much as the authority of the Iustices of Assise and Goal-delivery in holding their Sessions as before was accustomed is saved it is Included in it that all which appertain to the execution of this Service is also saved or otherwise the saving shall be to little purpose And therfore that the Sheriff or other Minister made by the authority of these Courts is well made there and warranted by the Charter And wee ought the rather to make such exposition of the Charter because it hath been alwaies after the Charter so put in execution by all the Iustices of Assise But it seems that by this Commision for the County a thing which happens in the Town cannot be determined albeit it be Felony commited in the Hall during the Sessions but by a Commission for the Towne it may 7. SIr Francis Englefield Knight being seised in his Demesne as of Fee of Vide this case reported in Coke lib. 7. 12 13. the Mannor of Englefield in the County of Berks and of divers other Lands in the first year of Queen Eliz. departed out of the Realm by licence of the Queen for a time and remained out of the Realm in the parts beyond the Seas above the time of his licence wherby the Queen by her Warrant under her privy Seal required him to return upon which he was warned but did not come wherupon the Queen seised his Land for his contempt After vvhich the Statute of Fugatives was made 13. year of the Queen upon which by Commissions found upon this Statute all his Lands were newly seised and afterwards 17 Eliz. by Indenture made between him and Francis Englefield his Nephew and sealed by the said Sir Francis at Rome the said Sir Francis covenanted with his said Nephew upon consideration of advancement of his Nephew and other good considerations to raise an use that he and his Heirs and all others seised of the said Mannor c. shall hereafter stand seised of them to the use of himself for term of his life without impeachment of Wast and afterwards to the use of his Nephew and of the Heirs Males of his body and for default of such Issue to the use of the right Heirs and Assigns of the said Francis the Nephew for ever with a Proviso that if the said Sir Francis shall have any Issue Male of his body that then all the said Vses and Limitations shall be void and with a Proviso further that if the said Sir Francis by himself or any other shall at any time during his life deliver or tender to his said Nephew a King of Gold to the intent to make the said Vses and Limitations void that then the said Vses and Limitations shall be void and that therafter the said Mannors c. shall be as before Afterwards the said Francis was attainted of Treason supposed to be committed by him 18 Eliz. A Le umures in partibus transmarinis le attainder fuit primerment utlagary apres per act de Par. 28 Eliz. by which the forfeiture of the Condition was given to the Queen and at the same Parliament it was also enacted that all and every person or persons which had or claimed to have any Estate of Inheritance Lease or Rent then not entred of Record or certified into the Court of Exchequer of in to or out of any Mannors Lands c. by or under any Grant Assurance or Conveyance whatsoever had or made at any time after the beginning of the Raign of her Majesty by any persons attainted of any Treasons mentioned in the said Act after the 8. day of February 18 Eliz. within two years next ensuing the last day of the Session of the said Parliament shall openly shew in the said Court of Exchequer or cause to be openly shewn there the same his or their Grant Conveyance or Assusance and there in the Term time in open Court the same shall offer
the money coming therof a prohibition shall be granted to the Ecclesiasticall Iudge in such a case wherby the Court granted a speciall consultation in the Case to wit that they proceed for the Legacy provided that they charge the Executor no further then he hath in Goods and Chattels of the Testator after his true and due Debts are satisfied And that in the case of the proof of these Debts they allow such proofs as by the Law of the Land are holden to be sufficient in such a case Quod nota benâ— as to the restraining of Ecclesiasticall Courts in their proceedings to bind any subject touching his private temporall Estate against all reason And as to it that they do not intermeddle in any thing belonging to the Common Law of the Realm as Debts and the like against the due course of the Common Law Cawdry versus Atton 5. IN Trespasse brought by Robert Cawdry Clerk against George Atton Vide this Case Coke lib. 5. 1. pa. for breaking his Close at North Luffenham in the County of Rutland upon not guilty and a speciall Verdict the Case appeared to be this to wit that the Plaintiff was Rector Ecclesiae de North Luffenham aforesaid of which the place was parcell and being so seised was deprived of his Rectory by the late Bishop of London and his Colleagues by virtue of the high Commission to them and others diverted because he had pronounced and uttered slanderous and contumelious words against and in depravation of the Book of Common-prayer But the form of the sentence was that the said Bishop by and with the assent and consent of five others of the said Commissioners his Companions and namely which deprived him And further it was not found that the Commissioners named were the naturall Subjects born of the Queen as the Statute enacts that they should be And if the deprivation be void then they find the Defendant guilty and if it were good then they find him not guilty And it was moved that the deprivation was void First Because that wheras the Commission is to them or any three of them of which the said Bishop to be one amongst others it ought to have been the sentence of them all according to the authority given to them which is equall and not that it was done by one with assent of the other Then because it is not found that the Commissioners are the naturall Subjects of the Queen born as by the words of the Statute they should be Another is because the punishment which the Statute provides for those of the Ministry which deprave this Book is to loose the profits of all their Spirituall Promotions but for a year and to be imprisoned by the space of six months and not to be deprived untill the second Offence after that he had been once committed and therfore to deprive him for the first offence was wrongfull and contrary to the Statute But by the whole Court for the form of the deprivation it is that which is used in the Ecclesiasticall Courts which alway names the chief in Commission that are present at the beginning of the Sentence and for the other they mention them only as here but of their assent and consent to it and in such cases we ought to give credit to their form and therfore t is not to be compared to an authority given at Commen Law by Commission And for the matter that is not found that the Commissioners were the naturall Subjects of the Queen born it is to be intended that they were such unlesse the contrary appear But here at the beginning it is found that the Queen secundum tenorem effectum actus predict had granted her Commission to them in causis Ecclesiasticis and therfore it appeareth sufficiently that they were such as the Statute wills them to be And for the deprivation they all agreed that it was good being done by the authority of the Commission for the Statute is to be understood where they prosecute upon the Statute by way of Inditement and not to restrain the Ecclesiasticall Iurisdiction being also but in the Affirmative And further by the Act and their Commission they may proceed according to their discretion to punish the offence proved or confessed before them and so are the words of their Commission warranted by the clause of the Act. And further the Ecclesiasticall Iurisdiction is saved in the Act. And further all the Bishops and Popish Priests were deprived by virtue of a Commission warranted by this clause in the Act And now lately it was agreed by all the Iustices that a Fine of 200. marks set upon one for a vitious liver by the high commission was warranted by virtue of the Commission and Act And therfore if the Act with the Commission are to be consdered in this case wherupon it was agreed that the Plaintiff should take nothing by his Writ Which you may see Hill 33. Eliz. Rot. 315. Hall versus Peart 6. IN an Ejectione firmae brought by William Hall Plaintiff for Land in D. in the County of Somerset upon a Lease made by William Dodington against John Peart and other Defendants upon a speciall Verdict the case appeared to be this That one Iohn Brown was in possession of certain Lands in D. aforesaid Vide this case in Cook lib. 2 32 33. by the name of Dodingâ—ons case which before were parcel of the possessions of the Hospitall or Priory of S. Iohns in Wells the Inheritance therof then being in the late King H. 8. by the Act of dissolutions And the King being so seised by his Letters Patents dated 26. of March 30 H. 8. ex gratia speciali certa scientia mero motu suo granted to Iohn Ayleworth and Ralph Duckenfield omnia illa Messuagia Ter. Tenemt gardina sua quaecunque tune in separabilibus tenuris diversarum personarum which he named particularly amongst which the said Iohn Brown was one in Civitate Wellen. ac in suburbiis ejusdem Civitat exira eandem civitat within the Jurisdictions and Liberties of the said City late parcell of the possessions of the said Hospitall and that the said Iohn Brown had not then any other Lands late parcel of the possessions of the said Hospitall but this in D. and that this Land was quite out of the said City of Wells and of the Suburbs therof and also out of the Liberties and Jurisdiction of the said City and yet it was found that it was in the particular and parcell of the value and valued in it in the Tenure of the said Iohn Brown at 6 s. 8 d. a year and the grant was to the said Iohn Ayleworth and Ralph Duckenfield and to the Heirs of the said Iohn Ayleworth forever And it was moved that the Grant was good to the said Ayleworth and Duckenfield because of the Statute of non-recitall and mis-recitall because it appeareth by the particular and value that it was intended to be passed
it shall not be taken by intendment that the Messuages had such a Curtilage to it if it be not specially named Fennors Case 5. IN Trespasse brought by Fennor in the common Bench against for breaking his Close in c. the Defendant pleads a Bar at large to make the Plaintiff assign the place in certain where he supposeth the Trespasse to be done the Plaintiff therupon alledgeth that the place where he complaineth is such c. and sheweth in certain another then that in which the Defendant justifies the Defendant avers that the one and the other are all one and known by the one name and the other and therupon the Plaintiff demurs and adjudged there for the Plaintiff because that in such a case upon such a speciall assignment it shall be taken meerly another then that in which the Defendant justifies in as much as the Plaintiff in such a case cannot maintain it upon his evidence given if the Defendant had pleaded not guilty to this new Assignment that the Trespasse was done in the place in which the Defendant justifies although it be known by the one and the other name and that the Plaintiff hath good Title to it because that by his speciall Assignment saying that it is another then that in which the Defendant justifies he shall never after say that it is the same in this Plea for it is meer contrary to his speciall Assignment And upon this a Writ of Error was brought in the Kings Bench and the Iudgment was there affirmed this Term for the same reason Quod nota Scot versus Sir Anthony Mainy 6. IN Debt upon an Obligation of 200 l. brought by John Scot Gent. against Sir Anthony Mainy Knight the Condition wherof being to perform the Covenant comprised in an Indenture of Demise made by the said Sir Anthony to the said Plaintiff of his Capitall Messuage in Holden with the Lands to it belonging c. amongst which Covenants one was that wheras by the same Indenture he had demised it to him for 21. years that the said Sir Anthony covenanted with the said John Scot that the said Sir Anthony from time to time during the life of the said Sir Anthony upon the surrender of this Demise or any other Demise hereafter to be made by the said Sir Anthony of the said Messuages and Lands and to be made by the said John Scot his Executors or Administrators and upon a new Lease to be made ready ingrossed to be sealed and offered by the said John Scot his Executors or Administrators to the said Sir Anthony for the like tearm and number of years in the aforesaid Indenture comprised for the same Rent c. to seal and deliver to the said John Scot his Executors and Administrators And the said Sir Anthony as to this Covenant pleaded did not surrender nor offer to surrender to him the said Demise nor offer to him any new Demise of the Premisses ready engrossed for to seal it for the like Term c. as it is in this Covenant And for the other Covenants he pleads performance of all To which the Plaintiff replies that the said Sir Anthony after the Obligation and before the Action brought had rendred the said Messuages and Lands by Fine to one Walter Savage and William Sheldon their Executors and Assigns for eighty years from the Feast of Easter next before the Fine which was Pasch 36 Eliz. wherby he said that the said Sir Anthony had disabled himself to renew his Lease according to the Covenant upon which it was demurred in the Commen Bench and the Iudgment given for the Plaintiff as appeareth Trin. 37. Eliz. Rot. 2573. And upon this Iudgment a Writ of Error was brought in the Kings Bench and agreed this Term. And it was moved that the Iudgment given was erroneous in as much as the first act was to be done by John Scot before the new Lease was to be made to wit the surrender of the former Lease and the drawing of the new one ought to have been done by the Plaintiff which not being done on his part the said Sir Anthony is not bound to make the new Lease And also it was moved that as the case is here the said John Scot might surrender to the Defendant notwithstanding the intervening of this Lease between the Lease of the Plaintiff and the Inheritance of the Defendant as if a man make a Lease for years in possession and afterwards make another Lease to a stranger to begin after the end of the former Lease this shall not hinder but that the first Lease may be surrendred to him who was the Lessor notwithstanding the said Term intervening To which it was answered by the Court that the Plaintiff here need not to make any offer of the surrender of his Term to the said Sir Anthony in as much as the said Sir Anthony hath disabled himself to take the Surrender or to take the Lease according to the purport of the Condition and by this disabling of himself the Obligation is forfeited Come per 44 E. 3. 8. and by Littleton also If a man make a Feoffment upon condition to re-enfeoff him this is not to be done untill request therof be made by the Feoffor yet if in the mean time the Feoffee suffer a fained recovery of the Land grant a Rent charge acknowledgeth a Statute taketh a Wife or the like the Feoffor may re-enter without request made to re-enfeoff him and the reason is because that by any of these the Feoffee hath disabled himself to perform the Condition in the same plight as he might have done at the time of the Feoffment in the same manner here for by this render by the Fine the Reversion passe in right so that the Termor in possession attorning to it they shall have the Rent reserved upon the first Lease and therfore the Plaintiff cannot now surrender to the said Sir Anthony but to the Grantees of the Reversion and therfore there shall be no prejudice to the Plaintiff because the Defendant was the cause of disabling the Plaintiff to make the Surrender to him And suppose it be but a Term to begin at a day to come yet by this the Obligation is forfeited because the Obligor hath therby disabled himself to perform the Condition in such a plight as he might have done it when the Obligation was made wherby the Obligation is presently forfeited albeit the Plaintiff never surrender nor offer to do it And therfore the Iudgment there was affirmed Mounson versus West 7. IN an Assise brought in the County of Lincoln before Gawdy and Owen by Thomas Mounson Esquire Demandant against Robert West Tenant for Lands in Sturton Juxta Stu. The Defendant West pleaded Nul Tenant del Frank-tenant named in the Writ and if that be not found then Nul tort nul Disseisin And the Assise found that the said Defendant was Tenant of the Tenements now in Plaint and put in view to the Recognitors of
doth much concern the Infant in as much as by his false plea he shall be bound to â—nswer of his own Goods if he hath no Goods of his Testator and therfore in a 11 E. 4. 1. he hath remedy against his Guardian for pleading a false Pâ—ea And by Doderidge if he hath no Guardian the Court shâ—ll appoint him a Guardian And if an Infant bring an action as Executor by Attorney and hath Iudgment to recover this is not erronious because it is for his benefit so per Curiam the difference is where he is Plaintiff and where he is Defendant And there is another difference where he is Executor and where not for being Executor his Plea might have been more prejudiciall to him and Coke lib 5. Russels case was agreed for good Law for an Infant may be Executor and may take money for a Debt and make a Release and give an Acquittance but not without a true consideration and payment of the money The same Term in the same Court. Thomas Middletons Case THomas Middleton alias Strickland was condemned for a Robbery at the Where a Felon is condemned and elcapeth and is re-taken upon confession that he is the same party execution may be awarded The Sheriff of Middlesex fined for not attending the Court. Assises in Oxford after which he made an escape and being taken again he was brought to the Bar and upon his own confession that he was the same party who did the Robbery and that he was condemned for it the Court awarded execution And Mountague chief Iustice said thâ—t was no new case for it had been in experience in the time of E. 3. and 9 H. 4. and 5. E. 4. that the Court might so do upon his own confession And because the Sheriff of Middlesex did not give his attendance upon the Court in this case nor came when he was called the Court fined him 10 l And Mountage said that it shall be levied by proces out of the Court and also all other Fines there assessed and not estreated into the Exchequer for then the party might compound for a matter of 20 s. and so the King be deceived The same Term in the same Court. Gouldwells Case IOhn Gouldwell seised of Land in Socage Tenure devised them to his Wife for life the Remainder to John Gouldwell his Son and his Heirs upon Condition that after the death of his Wife he shall grant a Rent-charge to Steven Gouldwell and his Heirs and if John Gouldwell dye withâ—ut Heirs of his body that the Land shall remain to Steven Gouldwell in Tail the Wife dieth John Gouldwell grants the Rent accordingly Stephen Gouldwell grants the Rent over John Gouldwell dies without Heir of his body and the second Grantee distrains for the Rent arrear and Stephen Gouldwell brings a Replevin And it was urged by the Counsell for the Plaintiff that this Rent shall not have continuance longer then the particular Estate and cited 11 H. 7. 21. Edriâ—ks case that if Tenant in Tail acknowledge a Statute this shall continue but during his life and Dyer 48. 212. But it was agreed per Curiam that the Grantee was in by the Devisor and not by the Tenant in Tail and therfore the Grant may endure for ever But for the second point this being to him in Remainder the intent of the Demisor is therby explained that he shall have the Rent only untill the Remainder come in possession for now the Rent shall be drowned in the Land by unity of possession 3. It was agreed and resolved that by the granting of the Kent over this was a confirmation And Mountague said that it was a confirmation during the Estate Tail and shall enure as a new grant afterwards And Haughton and Doderidge said that they would not take benefit of the grant over by way of confirmation for as Haughton said this enures only ought of the Devisor and he hath power to charge the Land in what manner he pleaseth and it is like to an usuall case as if a man makes a Feoffment in Fee to the use of one for life the Remainder over with power to make Leases and after he makes a Lease this is good against Tenant for life and him in the Remainder also And I have considered what the intent of the Devisor should be in granting of this Rent and it seems to me that in as much as the Land is limited in Tail and the Rent in Fee that by this the Grantee shall have power to grant or dispose of the Rent in what manner he would but if the Land had been in Fee I should have construed his intent to have been that the Grantee should have the Rent only untill the Remainder fall to which Doderidge agreed who said that we are in the case of a Will and this construction stands with the intent of the Devisor and stands with the Statute which saies Quod voluntas Donatoris est observanda The same Term in the same Court. Baskervill versus Brook A Man became Bail for another upon a Latitat in the Kings Bench and before Iudgment the Bail let his Lands for valuable consideration Difference between baile in the Kings Bench and the Common Pleas. And how a bail shall relate And afterwards Iudgment was given for the Plaintiff And now it was debated whether the Land Leased shall be liable to the Bailment and it was said by Glanvill of Councell with the Lessee that it ought not to be liable and he put a difference between a Bailment in this Court and a Bailment in the Common Pleas for there the Suit cometh by originall and the certainty of the debt or demand appeareth in the declaration and therfore then it is certainly known from the begining of the Bailement for what the Bail shall be bound But in this Court upon the Latitat there is not any certainty untill Iudgment given before which the Land is not bound and now it is in another mans hands and therfore â—ot liable and he puts Hoes case Co. lib. 5. 70. where iâ— was resolved that where the Plaintiff releaseth to the Bail oâ— the Defendant upon a Suit in the Kings Bench before Iudgment all Actions Duties and Demands that this Release shall not bar the Plaintiff for there is not any ceâ—tain duty by the Bail before Iudgment and therfore it cannot be a Release and he citeâ— the case of 21 E. 3. 32. upon an account and said that it was like to a second Iudgment in that which reduceth all to a certainty and therfor c. But it was said by Mountague and Crook that the Lessee shall be bound for otherwise many Bailments and Iudgments shall be defeated which will bring a great Inconvenience And Mountague said that it was like to the case of a bargain and sale of Land which after it is Inrolled within six moneths shall relate to the beginning of the Bargain so upon the Iudgment given relation is made from the time
dies and afterwards John his Son and Heir dies without Issue the reversion by this descends to the said Christopher who dies leaving Issue And upon this Case made in the Court of Wards the two chief Iustices Popham and Anderson agreed first That upon the devise and death of the Father the said Christopher and William were Joynt-tenants of the Land and not Tenants in Common notwithstanding the word severally because it is coupled with the said word joyntly But yet they agreed also that by the descent from John to Christopher the Fee-simple was executed in the said Christopher for the Moyety in the same Mannor as if he had purchased the Reversion of the whole or of this Moyety and that it is not like to the Case where Land is given and to the Heirs of one of them in which case for the benefit of the Survivorship it is not executed to divide the Ioynture because the Estates are made at one and the same time together and therfore not like to the case where the Inheritance cometh to the particular Estate by severall and divided means And a Decree was made accordingly Trin. 36. Eliz. In the Kings Bench. 1. IT was agreed by all the Iustices and Barons of the Exchequer upon an Assembly made at Serjeants-Inn after search made for the ancient Presidents and upon good deliberation taken If a man have two houses and inhabit somtimes in one and somtimes in the other if that House in which he doth not then inhabity be broken in the night to the intent to steal the Goods then being in his house that this is Burglary although no person bee then in the House and that now by the new Statute made such an Offender shall not have his Clergy for before the Statutes were made which take away Clergy in case of Burglary where any person was put in fear no mention was made in the Inditements of Burglary that any person was in the House But it was generall that the house of such a one Noctanter fregit and such Goods then there Felonice cepit And the breaking of a Church in the night to steal the Goods there is Burglary although no person be in it because this is the place to keep the Goods of the Parish And in the same manner the house of every one is the proper place to preserve his Goods although no person be there And that the Law was alwaies so it is to be collected by the course of the Statutes therof made for first the Statute of 23 H. 8. doth not take Clergy from any in case of Burglary unlesse some of the same Family be in the house and put in fear And in 5 Eliz. 6. The Offendor shall be ousted of his Clergy if any of the Family be in the house be they sleeping or waking And these Statutes were the cause that it was used of late time to put in the Inditements of Burglary that some person of the Family was then in the house to put them from their Clergy But this doth not prove that it shall not be Burglary but where some person was in the house and by 18 Eliz. Clergy is taken away in all cases of Burglary generally without making mention of any person to be there which enforce the resolution aforesaid and according to it they all agreed hereafter to put it in Execution Finch versus Riseley 2. IN this Term the case betweeen Finch and Riseley was in question before all the Iustices and Barons for this assembled at Serjeants-Inn in Fleetstreet where after Arguments heard by the Councell of the parties upon this point only If the Queen make a Lease for years rendring Rent with a Proviso that the Rent be not paid at the day limited that the Lease shall cease without making mention that it was to be paid at the receit whether the Lease shall cease upon the default of payment before Office found therof And by Periam and some of the Iustices the Lease stall not cease untill an Office be found of the default because it is a matter in Fait which determines it to wit the not-payment And by Gawdy it shall be taken as if it had been for the not-payment that the Proviso had been that the Lease shall be forfeited In which case it is not detennined untill Re-entry made for the forfeiture which in the Queens case ought alwaies to be by Office which countervails the re-entry of a common person As where the Queen makes a Lease rendring Rent and for default of payment a Re-entry albeit the Rent be not paid yet untill Office found therof the Rent continues Popham Anderson and the greater part of the Iustices and Barons resolved that it was cleer in this case that Ipso facto upon the default of payment the Lease was determined according to the very purport of the contract beyond which it cannot have any beeing and therfore there needs no Office in the case But where it is that it shall be forfeited or that he shall re-enter there untill advantage taken of the forfeiture in the one case or untill re-entry made in the other case the Term alwaies continues by the contract And where in the case of a common person there is need of a re-entry to undo the Estate there in the case of the King there needs an Office to determine the Estate for an Office in the Kings case countervails an entry for the King in person cannot make the entry And upon this resolution of the greater part of the Iustices in Mich. Term 31 32 Eliz. the same case was in question in the Office of Pleas in the Exchequer between the said Moil Finch Plaintiff and Thomas Throgmorton and others Defendants and there adjudged by Manwood late chief Baron and all the other Barons unanimously after long argument at the Bar and Bench that the Lease was void upon default of payment of the Rent according to the Proviso of the Lease and this immediatly without Office for the reasens before remembred upon which Iudgment was given a Writ of Error was brought before the Lord Keeper of the great Seal and the Lord Treasurer of England where it long depended and after many arguments the Iudgment given in the Exchequer by the advice of Popham and Anderson was affirmed and that upon this reason for the Proviso shall be taken to be a limitation to determine the Estate and not a Condition to undo the Estate which cannot be defeated in case of a Condition but by entry in case of a common person and but by Office which countervails an entry in the case of the Queen And this Iudgment was so affirmed in Mich. Term 36 37 Eliz. Smiths Case 3 IT was found by Diem clausit extremum after the death of Richard Smith that in consideration of a marriage to be had between Margaret Smith and William Littleton a younger Son to Sir John Littleton Knight and of 1300. marks paid by the said Sir John to the said