Chief Justice did conceive it might be a good custome and so also was the opinion of Rodes Justice and he vouched 11 H. 7. where the Lord had Three Pound for Pound-breach Fenner It is extortion if the amercement be not for a thing which is a common Nusans and cited 11 H. 4. to prove it Periam Justice said That hee said well Pasch 28 Eliz. In the Common Pleas. Rot. 1962. 159 GILE'S and NEWTON'S Case THE Case was That the Queen seised of the Manor of Gascoigne and of the Graunge called Gascoigne Graunge in D. did grant all her Lands Tenements and Hereditaments in D. and it was adjudged by the whole Court that the Manor did not pass And so Anderson Chief Justice said it is if it were in the Case of a common person but an Advowson shall passe by the Feoffment of the Manor without Deed without the words cum pertinentiis for that is parcell of the Manor which the whole Court granted Pasch 23. Eliz. in the Common Pleas. 160 J. S. was arrested by force of a Latitat out of the King's Bench at the Suit of J. D. and the Sheriffe took an Obligation of him with two Sureties upon condition that he appear such a day in the King's Bench and also that ad tunc ibidem he answer the said J. D. in a Plea of Trespass It was moved by Rodes Serjeant That the Obligation was void by the Statute of 23. H. 6. by which Statute no Obligation shall be said to be good if not for appearance only and this Obligation is for appearance and also that he shall answer to J. D. which is another thing then is contained in the Statute and therefore it is void But all the Justices were of opinion That the Obligation was good notwithstanding that because that the words of the Writ directed to the Sheriffe are Quod capias such a man It a quod habeas corpus ejus hîc such a day ad respondendum tali in a Plea of Trespasse and so nothing is contained in the Bond which is not comprised within the Writ directed unto him but if any other collaterall thing be put into the Obligation then the Bond shall be void for the whole 31. Eliz. in the Common Pleas. 161 BUCKHURST'S Case LEssee for ten years granted a rent charge unto his Lessor for the years Afterwards the Lessor granted the Remainder in Fee to the Lessee It was the opinion of the whole Court that the rent was gone and extinct because the Lessor who had the rent is a party to the Destruction of the Lease which is the ground of the Rent 29. Eliz. In the King 's Bench. 162 ALLEN and PATSHALL'S Case A Copy-holder doth surrender unto the use of a Stranger for ever and the Lord admits the Surrendree to have and to hold to him and his Heirs It was adjudged in this Case That if it were upon a devise that such a one should have the Copyhold in Fee and afterwards a surrender is made unto the Lord to grant the Copy-hold according to the Will and he grants it in Fee to him and his Heirs that the Grant is good But quaere in the first Case for it was there but a bare Surrender only Mich. 27 28. Eliz. in the King 's Bench. 163 STRANGDEN and BARNELL'S Case AN Action of Trover and Conversion was brought of Goods in Ipswich the Defendant pleaded That the Goods came to his hand in Dunwich in the same County and that the Plaintiffe gave unto him the goods which came to his hands in Dunwich absque hoc that he is guilty of any Trover and Conversion of Goods in Ipswich And by the opinion of the Court the same is a good manner of Pleading by reason of the speciall Justification Vide 27. H. 6. But when the Justification is generall the County is not traversable at this day Vide 19. H. 6. 6 7. Mich. 27. Eliz. in the Kings Bench. 164 BARTON and EDMOND'S Case AN Infant and another were bounden in a Bond for the Debt of the Infant The Infant at his full age did assume to save the other man harmelesse against the said Bond afterwards the Infant died It was resolved by the whole Court that upon this Assumpsit an Action upon the Case would lie against the Executors of the Infant But if a Feme Covert and another at her request had been bounden in such a Bond and after the death of her Husband she had assumed to have saved the other harmelesse against such Bond such Assumpsit should not have bound the Wife Trinit 29. Eliz. in the Common Pleas. 165 ZOUCH and BAMPORT'S Case THis Case was moved When the Defendant pleads in Bar to the Action and the Plaintiffe replies and the Defendant doth demur specially upon the Replication and the Bar is insufficient Whether the Justices shall give Judgment upon the Replication or shall resort unto the insufficient Bar the Replication being also insufficient And the opinion of the Court was That when the Action is of such a nature that the Writ and the Count doth comprehend the Title as in a Formedon and the like then because there is a sufficient title for the demandant by the Writ and the Count so as the Judges may safely proceed to Judgement for the Plaintiffe there they shall resort to the Barr. Contrary in Cases where the Title doth commence only by the Replication as in Assize Trespass and the like 40. Eliz. in the Exchequer 166 NOte it was said by Sir Francis Bacon the King's Solicitor That it was adjudged 40. Eliz. in the Exchequer That where the King had made a Lease for life who was ousted by a Stranger that the same should be said a Disseisin of the particular estate against the common ground which is That a man cannot be disseised of lesse estate then of a Fee-Simple 40. Eliz. in the Kings Bench. 167 IT was holden and adjudged by Popham Chief Justice of the Kings Bench That where a Lease was made unto the Husband and Wife for their lives the remainder to the Heirs of the Survivor that the same was a good remainder notwithstanding the uncertainty and that in that Case the Husband after the death of the Wife should have Judgement to recover the Land 33. Eliz. in the Common Pleas. 168 PROCTER'S Case IT was adjudged in this Case That the Lachess of the Clark in not entring of the Kings Silver shall not prejudice the King or the Crowne 30 Eliz. In the Kings Bench. 169 HARDING'S Case IT was holden by the whole Court of Kings Bench as it was reported by Sir Robert Hitcham Knight That if a man make a Lease of Copy-hold land and of Free-hold land rendring Rent and the Copy-hold descends to one and the Free-hold to another that the rent shall be apportioned Trinit 25. Eliz. in the Common Pleas. Rot. 1702. 170 LEONARD and STEPHEN'S Case IN Trespass the issue joyned was Whether it were a Feoffment or not and
is in the wife but the cause thereof is because it was once coupled with a possession C. 7. part Nevils Case There was a question whether an Earldom might be entailed and forfeited for Treason which is a thing which he hath not in possession nor use but is inherent in the blood And there resolved that the same cannot be forfeited as to be transferred to the King but it is forfeited by way of discharge and exoneration 12 Eliz. Dyer the Bishop of Durhams Case There if it had not been for the saving the Regal Jurisdiction of the Bishop had been given to the King by the Statute of 26 H. 8. This Statute of 26 H. 8. was made for the dread of the Traitor For the times past saw how dangerous Traitors were who did not regard their lives so as their lands might discend to their issue It was then desperate for the King Prince and Subject For the time to come it was worse The Law doth not presume that a man would commit so horrid an act as Treason so it was cited by Mr. Crook who cited the case That the King cannot grant the goods and lands of one when he shall be attainted of Treason because the Law doth not presume that he will commit Treason If the Law will not presume it wherefore then were the Statutes made against it If the Land be forfeited by the Statute of 26 H. 8. much stronger is it by the Statute of 31 H. 8. But then admit there were a Remitter in the Case yet by the Office found the same is defeated Without Office the Right is in the King Com. 486. c. 5. part 52 where it is said There are two manner of Offices the one which vests the estate and possession of the Land c. in the King where he had but a Right as in the case of Attaindor the Right is in the King by the Act of Parliament and relates by the Office Com. 488. That an Office doth relate 38 E. 3. 31. The King shall have the mean profits The Office found was found in 33 Eliz. and the same is to put the King in by the force of the Attaindor which was 29 H. 8. and so the same devests the Remitter Tenant in tail levieth a Fine and disseiseth the Conusee and dyeth the issue is remitted then proclamations pass now the Fine doth devest the Remitter C. 1. part 47 Tenant in tail suffereth a common Recovery and dyeth before Execution the issue entreth and then Execution is sued the Estate tail is devested by the Execution and so here in our Case it is by the Office C. 7. part 8. Tenant in tail maketh a Lease and dyeth his wife priviment ensient without issue the Donor entreth the Lease is avoided afterwards a Son is born the Lease is revived Com. 488. Tenant in capite makes a Lease for life rendring rent and for non-payment a re-entry and dyeth the rent is behind the heir entreth for non-payment of the rent and afterwards Office is found of the dying seised and that the land is hoâ—den in capite and that the heir was within age In the case the Entry for the Condition broken was revived and the Estate for life revived 3 E. 4. 25. A Disseisor is attainted of Felony the Land is holden of the Crown the Disseisee entreth into the Land and afterwards Office is found that the Disseisor was seised the Remitter is taken out of the Disseisee which is a stronger case then our Case for there was a right of Entire and in our Case it is but a right of Action which is not so strong against the King And for these Causes he concluded That the Judgment given in the Court of Pleas ought to be reversed And so prayed Judgment for the Lord of Sheffield Plaintiffe in the Writ of Error This great Case came afterwards to be argued by all the Judges of England And upon the Argument of the Case the Court was divided in opinions as many having argued for the Defendant Ratcliffe as for the Plaintiffe But then one new Judge being made viz. Sir Henry Yelverton who was before the Kings Sollicitor his opinion and argument swayed the even ballance before and made the opinion the greater for his side which he argued for which was for the Plaintiffe the Lord Sheffield And thereupon Judgment was afterwards given That the Judgment given in the Court of Pleas should be reversed and was reversed accordingly And the Earl Lord Sheffield now Earl of Mulgrave holdeth the said Castle and Mannor of Mulgrave at this day according to the said Judgment Note I have not set here the Arguments of the Judges because they contained nothing almost but what was before in this Case said by the Councel who argued the Case at the Bar. Pasch 21 Jacobi in the Kings Bench. 418. IT was the opinion of Ley Chief Justice Chamberlain and Dodderidge Justices That a Defendants Answer in an English Court is a good Evidence to be given to a Jury against the defendant himself but it is no good Evidence against other parties If an Action be brought against two and at the Assises the Plaintiffe proceeds only against one of them in that case he against whom the Plaintiffe did surcease his suit may be allowed a Witnesse in the Cause And the Judges said That if the Defendants Answer be read to the Jury it is not binding to the Jury and it may be read to them by assent of the parties And it was further said by the Court That if the party cannot find a Witnesse then he is as it were dead unto him And his Deposition in an English Court in a Cause betwixt the same parties Plaintiffe and Defendant may be allowed to be read to the Jury so as the party make oath that he did his endeavour to find his Witnesse but that he could not see him nor hear of him Pasch 21 Iacobi in the Kings Bench. 419. THe Husband a wife seised of Lands in the right of the wife levied a Fine unto the use of themselves for their lives and afterwards to the use of the heirs of the wife Proviso that it shall and may be lawfull to and for the husband and wife at any time during their lives to make Leases for 21 years or 3 lives The wife being Covert made a Lease for 21 years And it was adjudged a good Lease against the husband although it was made when she was a Feme Covert and although it was made by her alone by reason of the Proviso Pasch 21 Jacobi in the Common-Pleas 420. NOte that Hobart Chief Justice said That it was adjudged Mich. 15 Jacobi in the Common-Pleas That in an Action of Debt brought upon a Contract the Defendant cannot wage his Law for part and confesse the Action for the other part And it was also said That so it was adjudged in Tart's Case upon a Shop-book And vide 24 H. 8. Br. Contract 35. A Contract cannot be divided
Billam Trin. 21 Jacobi in the Kings Bench. 435. SHOETER against EMET and his WIFE THe plaintif being a midwife the Defendants wife said to the plaintif Thou art a Witch and wert the death of such a mans child at whose birth thou wert Midwife In an Action upon the Case in Arrest of Judgment it was moved that the words were not actionable Hill 15 Jacobi in the Common Pleas Stone and Roberts Case adjudged That an Action upon the Case doth not lie for saying thou art a Sorcerer 9 Jac. Godbolds Case in the Kings Bench Thou art a Sorcerer or an Inchanter 30 Eliz. betwixt Morris and Clark for saying Thou art a Witch no Action will lie for of the words Witch or Sorcerer the Common Law takes no notice but a Witch is punishable by the Statute of 1 Jacobi cap. 12. Pasch 44 Eliz Lowes Case Thou hast bewitched my cattel or my child there because an Act is supposed to be done an Action upon the Case will lie for the words 1. Jacobi Sir Miles Fleetwoods Case He was Receiver for the King in the Court of Wards and Auditor Curle said of him Thou hast deceived the King and it was adjudged that an Action upon the Case would lie for the words because it was in his calling by which he got his living Chamberlain Justice Since the Statute 1 Jacobi for calling one Witch generally an Action will lie For for the hurting of any thing a Witch is punishable by shame viz. Pillory in an open place Dodderidge Justice Thief or Witch will bear Action and the reason of the Case before cited by the Councel is because that the common Law doth not take notice of a Witch But punishment is inflicted upon a Witch by the Statute of 1 Jacobi and by that Statute a Witch is punishable Trin. 21 Jacobi Betwixt Mellon and Herâ— Judgment was stayed where the words were Thou art a witch and hast bewitched my child because that the words shall be taken in mitiori sensu as thou hast bewitched him with pleasure And in that sense Saint Paul said Who hath bewitched you O Galatians That case was adjudged in the Common Pleas. Trin. 21 Iacobi in the Kings Bench. 436. KNOLLIS and DOBBINE'S Case KNollis did assume and promise apud London within such a Parish that he would cast so much Lead and cover a Church in Ipswich in Suffolk and one Scrivener promised him to give him 10l for his costs and pains Scrivener died Knollis brought an Action upon the Case against Dobbins who was Administrator of Scrivener and declared that he such a day did cast the Lead and cover the said Church apud London The Defendant pretended that the Intestator made no such promise and it was found for the Plaintiffe and in arrest of Judgment it was moved That the Declaration was not good by reason that the Agreement was to cover a Church in Ipswich and he declared he had covered such a Church apud London which is impossible being 60 miles asunder and so the Declaration is not pursuing the promise Dyer 7 Eliz. 233. In Avowry for Rent upon a Lease for life c. That the Prior and Covent of c. at Bathe demiserunt Lands which was out of Bathe it was void for they being at Bathe could not make Livery of Land which was out of Bathe Vi. Dyer 270. The second Exception to the Declaration was That the Commissary of the Bishop of Norwich apud London did commit Administration of the Goods and Chattels of Scrivener to Dobbins apud London which was said not to be good because he had not power in London to execute any power which appertained unto him at Norwich Dodderidge Justice The plaintiffe declares that apud London he did cover the said Church that is not good and makes the Declaration to be insufficient because it is not according to the promise The place where the Commissary of the Bishop of Norwich did grant the Administration is not material For if the Bishop of Norwich be in London yet his power as to granting of Letters of Administration and making of Deacons and Clarks in his own Diocese doth follow the person of the Bishop although his other Jurisdiction be Local to which the Court agree And it was adjudged that the Declaration was not good and therefore Judgment was given Quod querens nihil capiat per Billam Trin. 21 Iacobi in the Kings Bench. 437. BULLEN and SHEENE'S Case SHeene brought a Writ of Error upon a Judgment given in the Common Pleas. The Case was Bullen being a Commoner intituling himself by those whose Estate he had in the Land brought an Action upon the Case against Sheene because he had digged clay in the land where the Plaintiffe had Common and had carried away the same over the Common per quod he lost his Common and by that could not use his Common in as ample manner as he did before Sheene entitled himself to be a Commoner and have common in the said land also and so justified the Entrie and set forth a prescription That every Commoner had used to dig clay there and the first issue was found for the Defendant Sheene viz. that he was a Commoner but the other issue was found for the Plaintiffe Bullen viz. that there was no such prescription That a Commoner might dig clay And the Jury did assesse damages to the Plaintiffe generally and the same was moved to be Error because that the Plaintiffe had not damage by carrying away of the clay because the same did not belong to him for that he was but a Commoner and so the Judgment given in the Court of Common Pleas was Erroneous Ley Chief Justice By the digging of a pit the Commoner is prejudiced by the laying of the clay upon the Common the Commoner is prejudiced and so the damages are given for the digging and carrying away of the clay per quod Commoniam suam amisit and the damages are not given for the clay Chamberlain Justice If he had suffered the clay to lie by the pit it had been damage to the Commoner If the Owner of the soil plough up or maketh conyburies in the Land an Action upon the case lyeth against him by the Commoner for thereby the Common is much the worse and the Commoner prejudicedS If the pit be deep it is dangerous to the Commoner and so a damage unto him for it is dangerous lest his cattel should fall into it and it will not suddenly be filled up again and so no grass there for a long time and the longer because that which should fill up the pit is carried away Haughton Justice The proceedings are Erroneous both Plaintiffe and Defendant are Commoners The wrong is in two points First That the Defendant had with his cattell fed the Common Secondly That the Defendant had digged clay there and carried the same away The Defendant makes Title to both First he prescribes to have Common there Secondly That the Commoners
of the Justices was That the Fee was executed for a moitie Manwood If the Land be to one for life the Remainder for yeers the Remainder to the first Tenant for life in Fee there the Fee is executed so as if he lose by default he shall have a Writ of Right and not Quod ei deforceat for the term shall be no impediment that the Fee shall not be executed As a man may make a lease to begin after his death it is good and the Lessor hath Fee in possession and his wife shall be endowed after the Lease And I conceive in the principall case That the term shall not be extinct for that it is not a term but interesse termini which cannot be granted nor surrendred Mounson If he had had the term in his own right then by the purchase of the Fee the Term should be extinct But here he hath it in the right of another as Administrator Dyer If an Executor hath a term and purchaseth the Fee the term is determined So if a woman hath a term and takes an husband who purchaseth the Fee the term is extinct Manwood The Law may be so in such case because the Husband hath done an act which destroyes the term viz. the purchase But if the woman had entermarried with him in the Reversion there the term should not be extinguished for the Husband hath not done any act to destroy the term But the marriage is the act of Law Dyer That difference hath some colour But I conceive in the first case That they are Tenants in common of the Fee Manwood The Case is a good point in law But I conceive the opinion of Manwood was That if a Lease for yeares were to begin after the death surrender forfeiture or determination of the first lease for yeares that it shall not begin in that part for then perhaps the term in that part shall be ended before the other should begin Pasc 20. Eliz. in the Common Pleas. 3. A Man seised of Copyhold land descendable to the youngest Son by Custome and of other Lands descendable to the eldest Son by the common Law leaseth both for yeers The Lessee covenanteth That if the Lessor his wife and his heirs will have back the land That then upon a yeers warning given by the Lessor his wife or his heirs that the Lease shall be void The Lessor dieth the Reversion of the customary Land descends to the younger son and the other to the eldest who granteth it to the younger and he gives a yeers warning according to the Covenant Fenner The interest of the term is not determined because a speciall heir as the youngest son is is not comprehended under the word Heir but the heir at common Law is the person who is to give the warning to avoid the estate by the meaning of the Covenant But Manwood and Mounson Justices were cleer of opinion That the interest of the term for a moity is avoyded for the Condition although it be an entire thing by the Descent which is the act of Law is divided and apportioned and the warning of any of them shall defeat the estate for a moity because to him the moity of the Condition doth belong But for the other moity he shall not take advantage by the warning because that the warning is by the words of the Condition appointed to be done by the Lessor his wife or his heirs And in that clause of the Deed the Assignee is not contained And they agreed That if a Feoffment of lands in Borough-English be made upon condition That the heir at common Law shall take advantage of it And Manwood said that hee would put another question Whether the younger son should enter upon him or not But all Actions in right of the Land the younger son should have as a Writ of Error to reverse a Judgment Attaint and the like quod nota Pasc 22. Eliz. in the Common Pleas. 4 IT was holden by Meade and Windham Justices of the Common Pleas That a Parsonage may be a Mannor As if before the Statute of Quia emptores terrarum the Parson with the Patron and Ordinary grant parcel of the Glebe to divers persons to hold of the Parson by divers Services the same makes the Parsonage a Manor Also they held That a Rent-Charge by prescription might be parcel of a Manor and shall passe without the words cum pertinentiis As if two Coparceners be of a Manor and other Lands and they make partition by which the eldest sister hath the Manor and the other hath the other Lands and she who hath the Lands grants a Rent-charge to her sister who hath the Manor for equality of partition Anderson and Fenner Srjeants were against it Hill 23 Eliz. In the Common Pleas. 5. THis Case was moved by Serjeant Periam That if a Parson hath Common appendant to his Parsonage out of the lands of an Abby and afterwards the Abbot hath the Parsonage appropriated to him and his Successors Whether the Common be extinct Dyer That it is Because he hath as high an estate in the Common as he hath in the Land As in the case of 2 H. 4. 19. where it is holden That if a Prior hath an Annuity out of a Parsonage and afterwards purchaseth the Advowson and then obtains an Appropriation thereof that the Annuity is extinct But Windham and Meade Justices conceived That the Abbot hath not as perdurable estate in the one as in the other for the Parsonage may be disappropriated and then the Parson shall have the Common again As if a man hath a Seignorie in fee and afterwards Lands descend to him on the part of the Mother in that case the Seignory is not extinguished but suspended For if the Lord to whom the Land descends dies without issue the Seignorie shall go to the heir on the part of the Father and the Tenancy to the heir on the part of the Mother And yet the Father had as high an estate in the Tenancy as in the Seignory And in 21 E. 3. 2. Where an Assize of Nusance was brought for straightning of a way which the plaintif ought to have to his Mill The defendant did alledg unity of possession of the Land and of the Mill in W. and demanded Judgment if c. The plaintif said that after that W. had two daughters and died seised and the Mill was allotted to one of them in partition and the Land to the other and the way was reserved to her who had the Mill And the Assize was awarded And so by the partition the way was revived and appendant as it was before and yet W. the Father had as high an estate in the Land as he had in the Way Hill 23 Eliz. In the Common Pleas. 6. A Man makes a Feoffment in Fee of a Manor to the use of himself and his Wife and his heirs In which Manor there are Underwoods usually to be cut every one and twenty yeers and
afterward the Husband suffers the wood to grow five and twenty yeers and afterwards hee dieth The question was Whether the Wife being Tenant for life might cut that Underwood And it was moved What shall be said seasonable Underwood that a Termor or Tenant for life might cut Dyer Chief Justice and all the other Justices held That a Termor or Tenant for life might cut all Underwood which had been usually cut within twenty yeers In 11. H. 6. 1. Issue was taken If they were of the age of twenty yeers or no. But in the Wood-Countries they may fell seasonable wood which is called Sylva caedua at six and twenty eight and twenty thirty years by the custome of the Country And so the Usage makes the Law in severall Countries And so it is holden in the books of 11. H. 6. and 4. E. 6. But they agreed That the cutting of Oakes of the age of eight yeers or ten years is Waste But by Meade Justice the cutting of Hornbeams Hasels Willows or Sallows of the age of forty yeares is no Waste because at no time they will be Timber Another question which was moved was That at the time of the Feoffment it was seasonable Wood and but of the growth of fourteen or fifteen yeers If this suffering of the Husband of it to grow to 25 years during the Coverture should bind the Wife so as she cannot cut the Woods Gaudy Serjeant said That it should not bind the Wife For if a Warranty descend upon a Feme Covert it shall not bind her So if a man seized of Land in the Right of his Wife be disseised and a Descent be cast during the Coverture it shall not bind the Wife but that she may enter after the death of the Husband But by Dyer Chief Justice and all the other Justices This Permission of the Husband shall bind the Wife notwithstanding the Coverture for that the time is limited by the Law which cannot be altered if it be not the custome of the Country As in the case of 17. E. 3. Where a man makes a Lease for years and grants that the Lessee shall have as great commoditie of the Land as hee might have Notwithstanding these words he cannot dig the land for a Mine of Cole or Stone because that the Law forbids him to dig the land So in the principall Case The Wife cannot fell the Wood notwithstanding that at the time of her estate she might and afterwards by the permission of the Husband during the coverture the time is incurred so as she cannot fell it because the Law doth appoint a time which if it be not felled before such time that it shall not be felled by a Termor or a Tenant for life but it shall be Waste Hill 23. Eliz. In the Common Pleas. 7. A Man makes a Lease of a Garden containing three Roodes of Land and the Lessee is ousted and he brings an Ejectione firme and declares that he was ejected of three Roods of Land Rodes Serjeant moved That by this Declaration it shall be intended that he was ejected of the Garden of which the Lease was made and so the Ejectione firme would lie And it was holden by the Lord Chief Justice Dyer That a Garden is a thing which ought to be demanded by the same name in all Precipes as the Register and Fitz. N. Brevium is And this Action is greater then an Action of Trespasse because by Recovery in this Action he shall be put into Possession But Meade and Windham Justices contrary And they agreed that in all reall Actions a Garden shall be demanded by the name Gardinum otherwise not But this Action of Ejectione firme is in the nature of Trespasse and it is in the Election of the Party to declare as here he doth or for to declare of the Ejectment of a Garden for a Garden may be used at one time for a Garden and at another time be ploughed and sowed with Corn. But they conceived that the better order of pleading had been if he had declared that he was ejected of a Garden containing three Roodes of Land as in the Lease it is specified Hill 23. Eliz. In the Common Pleas. 8. SErgeant Fenner moved this case That Land is given to the Wife in tail for her Joynture according to the Statute of 11. H. 7. The Husband dieth the Wife accepts a fine Sur conusans de droit come ceo c. of a Stranger And by the same fine grants and renders the Land to him for an Hundred years whether this acceptance of a Fine and Render by the Wife were a forfeiture of her estate so as he in the Reversion or Remainder might enter by the Statute Mead and Dyer Justices it is a forfeiture and Mead resembled it to the Case in 1 H. 7. 12. where it is holden That if Tenant for life do accept of a Fine Sur conusans de droit come ceo c. that it is a forfeiture and the Lessor may enter But Fenner asked their opinions what they thought of the principall case But haesitavernut because they said it was a dangerous case and is done to defraud the Statute of 11. H. 7. Pasch 23. Eliz. in the Common Pleas. 9. A Man made a Feoffment in Fee to two to the use of himself and his wife for the term of their lives without impeachment of waste during the life of the Husband the remainder after their decease to the use of I. his son for the term of his life And further by the same Deed Vult concedit that after their three lives viz. of the Husband Wife and Son that I. S. and I. D. two other Feoffees shall be seized of the same Land to them and their heirs to the use of the right Heirs of the body of the Son begotten It was moved That by this deed the two later Feoffees should be seized to the use of the right Heirs of the body of the Son begotten after the death of the Husband Wife and the Son But it was holden by all the Justices That the second Feoffees had not the Fee because by the first part of the Deed the Fee-Simple was given to the first Feoffees and one Fee-Simple cannot depend upon another Fee-Simple Notwithstanding that after the determination of the former uses for life the Fee-Simple should be vested again in the Heires of the Feoffer and that the words That the second Feoffees should be seized should be void But Dyer Chief Justice and the other Justices were against that because there wanted apt words to raise the later use As if a man bargain and sell his Reversion of Tenant for Life by words of Bargain and Sale only and the Deed is not Enrolled within the six months but afterwards the Tenant for Life doth attorne yet notwithstanding that the Reversion shall not passe because Bargain and Sell are not apt words to make a Grant And that Case was so adjudged in the Common Pleas as the
found amongst the Latinists Snag said What then yet one is a word which is received in the Law and is vox artis but the other not and therefore it is not in the same degree Also he said That when the Indictment comes to the Accessories It said Felonicè praesentes abbâ—ttentes assistentes and felonicè cannot be applied to praesenteâ— Also when it comes to the Accessories it doth not say Ex malitia praecogitata abbetâ—entes assistentes c. Cook contrary and he said That if Indictments have sufficient substance they are not to be overthrown for trifles As to the first he said If you will have it to be coram Coronatore de Comitatu perhaps it was a Liberty and then coram Coronatore of the Liberty cannot be coram Coronatore of the County Gaudy Justice said that was no answer But as to this point the Justices desired that Presidents might be searched and said that they would follow the greater number of them Clenche If one say that such a one is a Justice of Peace in Hertfordshire it is all one as if he had said a Justice of Peace of Hertfordshire As to the 2d. Jurati that is no Exception for it is true that it must be so in an Assize but not in an Indictment also no President can be shewed where ex malitia propensa sua shall be applied to every word when it runs in sense to all by Conjunctions copulative As to the Exception that there ought to be the length breadth c. Kempe the Secondary said That it was not worth the standing upon and as to the word Murdredi if it had been left out the Indictment had been sufficient and that shall not make the Indictment void for if it be left out it doth no hurt to it For if many come together to make an Assault ex malitia praecogitata and one of them onely strikes the partie mortally and he dieth it is murder in them all And that was Doctor Ellis case in the Commentaries and the Indictment needs not say that they were praesentes abbettantes auxiliantes and as to the word felonicè it goes to all the words although not particularly applied Note all the Justices did incline that the Indictment was good notwithstanding the Exceptions but yet they said they would advise of it and look upon Presidents Mich. 28 29. Eliz. in the King 's Bench. 79. A Writ of Error was brought against two upon a Recovery in a Precipe quod reddat c. and one of them died The question was Whether the Writ should abate Cook moved that it might not abate for he said That the Writ of Error is but a Commission for to examine the Record and the partie shall recover nothing therby but shall be onely discharged from the first Recovery and he said It is not like unto a Precipe Then the Justices demanded of him if the Recovery were in a reall Action and he said that it was Then they said that 3. H. 7. 1. is That if Error be brought upon a Recovery in a personall Action that death shall not abate the Writ but otherwise if it were upon a reall Action for there the Judgement shall be that he shall be restored to the Land Quere Mich. 28 29. Eliz. in the King 's Bench. 80 AN Appeal of Mayheme was that Percussit super manum dextram viz. inter manum dextram brachium dextrum And Exception was taken to it that it was repugnant for if it was inter brachium manum dextram therefore it could not be super manum dextram for the word inter excludes both Cook It is certain enough because it saith Super manum dextram And an Indictment shall not abate for forme if it be sufficient in substance of matter and also being upon the Wrist it was upon the rising of the hand Mich. 28 29 Eliz. in the Kings Bench. 81 A Man made a Lease for years rendring rent at the Feast of Saint Michael th'Arch-Angel and if it were behind by ten days after being in the mean time lawfully demanded and no sufficient distresse to be found upon the Land that then it might be lawfull for the Lessor to re-enter The last of the ten dayes at the hour of two afternoon the Rent was demanded and there was a sufficient distresse upon the Land before the Demand but not after and whether the Lessor might enter or not was the question Daniel These words Sufficient distresse ought to be referred to the time of the Demand viz. to the last instant at which time the Demand is only materiall Upon a Cessavit if there be a sufficient distresse the last instant of the two years it is sufficient Clenche Justice held That there ought to be a sufficient distresse upon the Land for all the ten dayes But Suit Justice held That it was sufficient if there were a distresse for a reasonable time so as it might be presumed that the Lessor might have knowledge of it But if a distresse be put upon the Land only for an hour or by nights he held it was not a sufficient distresse Mich. 28 29. Eliz. in the Kings Bench. 82 Sir EDWARD HOBBYE'S Case IN this Case the question was Whether the Death of one of the Defendants should abate the whole Writ of Error Cook The Writ shall not abate for no Defendant is to be named in the Writ which see in the forme of the Writ of Error and 2 R. 3. 1. it is holden That the Writ shall not abate for it is in its nature but a Certiorari and Judgement only is to be reversed Atkins Although that the Defendants have not day in Court by the Writ of Error yet by the Scire facias which is sued upon it as in our Case it is they have day and see 3. H. 7. and 14. H. 7. a difference where it is a Writ of Error upon a reall Action and where upon a personall Cook That holds Where the first Writ is abated and so is 3. H. 7. See the Case a little before Gaudy and Clench Justices bring a new Writ of Error for that is the surest way Mich. 28 29. Eliz. in the King 's Bench. 83 LOVELL and GOLSTON'S Case IN a Writ of Error brought upon a Record removed out of the Court of Kingston where the first Judgement was given in an Action of Debt for an Amercement in a Court Baron The first Error which was assigned was That he in the Action of Debt did declare That whereas at a Court holden before William Fleetwood Steward c. whereas it ought to have been holden before the Suitors for they are the Judges The second Error was That the Presentment upon which the Amercement is grounded saith That Golston the Defendant had cut down more Trees quam debuit extra boscum Domini 1. That it is repugnant for he could not cut wood extra boscum but in bâ—sco 2. When it saith many and doth
licence be to A. and B. or C. some conceived that A. or B. might alien but not C. Et èâ—converso Mich. 28 29. Eliz. in the Common Pleas. 105 IT was agreed by the whole Court That a Partition made by word betwixt Joyntenants is not good See Dyer 29. Pl. 134. and 350. Pl 20. doth agree and see there the reason of it Mich. 28 29. Eliz. in the Common Pleas. 105 IT was holden by the whole Court That if the Father do devise Lands unto his Son and Heir apparant and to a stranger that it is a good Devise and that they are Joyntenants for the benefit of the Stranger Mich. 28 29. Eliz. in the Common Pleas. 106 FULLER'S Case A. Promises unto the eldest son that if he will give his consent that his Father shall make an Assurance unto him of his Lands that he will give him ten pounds If he give his assent although no assurance be made yet he shall maintain an Action upon the promise But at another day Periam Justice said that in that case the son ought to promise to give his assent or otherwise A. had nothing if his son would not give his consent And so where each hath remedy against the other it is a good Consideration In Hillary Term after Fenner spake in arrest of Judgment upon the speciall Verdict That because that the Assumpsit is but of one part and the other is at liberty whether he will give his consent or not that therefore although that hee do consent that hee shall not recover the ten pounds Also he said That the promise was that if hee would give consent that his Father should make assurance to him and here the assurance is made to A. to the use of the Defendant and his Wife in taile so as it varies from the first Communication and also it is in tail Shuttleworth contrary in as much as he hath performed it by the giving of consent then when he hath performed It is not to the purpose that he was not tyed by a crosse Assumpsit to do it but if he had not given his consent he should have nothing At length Judgment was given for the Plaintiff And Periam Justice said in this Case That if a covenant be to make an Estate to A. and it is made to B. to the use of A. that he doubted whether that were good or not Mich. 28 29 Eliz. In the Common Pleas. Intratur Hill 28. Eliz. Rot. 1742. 107 WISEMAN and WALLINGER'S Case A Man seised of two Closes called Bl. Acre makes a Lease of them rendring Ten Shillings rent The Lessee grants all his Estate in one of them to A. and in the other to B. The Lessor doth devise all his Land called Bl. Acre in the tenure of A. and dieth The Devisee brings an Action of Debt for the whole Rent against the first Lessee And the Opinion of the whole Court was That the Action would not lie because they conceived That but the Reversion of one Close passed and also that the rent should not be apportioned in that Case because a terme is out of the Statute and a Rent reserved upon a Lease for years shall not be apportioned by the act of the Lessor as where he takes a Surrender of part of it But otherwise by Act in Law as where the Tenant maketh a Feoffment in Fee of part of the Land and the Lessor entreth And at another day Anderson Chief Justice said That if the Lessor of two Acres granteth the Reversion of one Acre that the whole Rent is extinct Mich. 28 29. Eliz. in the Common Pleas 108 A Lease for years is made of Land by Deed rendring Rent the Lessee binds himselfe in a Bond of Ten Pound to perform all Covenants and Agreements contained in the Deed the Rent is behind and the Lessor brings an Action of Debt upon the Bond for not payment of the Rent the Obligor pleads performance of all Covenants and Agreements the Lessor saie That the Rent is behind it was holden That it is no Plea for the Obligor to say That the Rent was never demanded But in this Bar he ought to have pleaded That he had performed all Covenants and Agreements except the payment of the Rents And as to that That he was alwayes ready to have paid it if any had come to demand it but as the first Plea is it was held not to be good And as to the demand of the Rent the Court was of opinion That it was to be demanded for the payment of the Rent is contained in the word Agreements and not in the word Covenants and then if he be not to performe the Agreements in other manner then is contained in the Deed of that agreement the Law saith That there shall be a demand of the Rent But if the Lessee be particularly expressed by covenant to pay the Rent there he is bound to do it without any Demand Mich. 28 29. Eliz. in the Common Pleas. 109 HOLLENSHEAD against KING THomas Hollenshead brought Debt against Ralph King upon a Recovery in a Scire fâ—cias in London upon a Recognizance taken in the Inner or Ouster Chamber of London and doth not shew That it is a Court of Record and that they have used to take Recognisances and Exception was taken unto the Declaration and a Demurrer upon it and divers Cases put That although that the Judgement be void that yet the Execution shall be awarded by Scire facias and the party shall not plead the same in a Writ of Error But Periam Justice took this difference Where Execution is sued upon such a Judgement and where Debt is brought upon it for in Debt it behoves the Party that he have a good Warrant and ground for his Action otherwise he shall not recover but upon a voidable Judgement he shall recover before it be reversed Mich. 28 29 Eliz. In the Common Pleas. Intratur Trinit 28. Eliz. Rot. 507. 110 COSTARD and WINGFIELD'S Case IN a Replevin the Defendant did avow for Damage Feasans by the commandment of his Master the Lord Cromwell The Plaintiffe by way of Replication did justifie the putting in of his Cattell into the Land in which c. by reason that the Towne of N. is an ancient Town and that there hath been a usage time out of mind That every Inhabitant of the same Towne had had common for all his cattel Levant and Couchant in the same Town and so justified the putting in of his cattell The Defendant said That the house in which the Plaintiffe did inhabite in the same Towne and by reason of Residency in which house he claimed common was a new house built within 30 years and within that time there had not been any house there and upon that Plea the Plaintiffe did demurr in Law Shuttleworth Serdeant for the Plaintiffe That he shall have common for cause of Resiance in that new house and the Resiancy is the cause and not the Land nor
here is not mis-joyned for if the Counties could joyne the issue were good but because that the Counties cannot joyne it cannot be well tried But the issue it selfe is well enough Windham and Rodes were of the same opinion that it was not helped by the Statute but Periam doubted it Anderson said That if an issue triable in one Countie be tried in another and judgement given upon it it is errour And afterwards Lutrich the Atturney said That it was awarded that they should re-plead Nota quia mirum for 1. The Statute of 32. H. 8. Cap. 30. speaks of mis-joyning of processe and mis-joyning of issues and admit that this case is not within any of those clauses each of them being considered by it selfe yet I conceive it is contained within the substance and effect of them being considered together Also I conceive That it is within the meaning of both Statutes viz. 32. H. 8. Cap. 30. and 18. Eliz. Cap. 14. for I conceive the meaning of both the Statutes was to oust delayes circuits of actions and molestations and that the partie might have his judgement notwithstanding any defect if it were so that notwithstanding that defect sufficient title and cause did appeare to the Court. And here the Plaintiffe hath sufficient cause to recover If any of the points of the issue be found for him For if it bee found that the matter and substance of the oath be found true which might be tried well enough by those in London the Plaintiffe hath cause to recover Wherefore I conceive that the verdict in London is good enough and effectuall And note That Rodes said that hee was of Councell in suh a case in the Kings Bench betwixt Nevell and Dent. Mich. 28 29. Eliz. in the Common Pleas. 128 IN an Action of Trespasse the Defendant pleaded that at another time before the Trespasse he did recover against the same Plaintiffe in an Ejectione firme and demanded judgement And the opinion of the whole Court was That it is a good plea primâ faciâ— and that the possession is bound by it for otherwise the recovery should be in vaine and uneffectuall And Anderson chiefe justice said That if two claime one and the same Land by severall Leases and the one recovereth in an Ejectione firme against the other that if afterwards the other bring an Ejectione firme of the same Land the first recovery shall be a barre against him Rodes said That hee can shew authority that a recovery in an Ad terminum quem praeteriit shall bind the possession Mich. 28 29. Eliz. in the Common Pleas. 129 IN Trespasse the Defendant did justifie as Bailiffe unto another The Plaintiffe replied that he took his cattell of his own wrong without that that he was his Bailiffe Anderson chiefe Justice If one have cause to distreine my goods and a stranger of his own wrong without any warrant or authority given him by the other take my goods not as Bailiff or servant to the other And I bring an Action of trespasse against him can he excuse himself by saying that he did it as my Bailiffe or Servant Can he so father his mis-demeanours upon another He cannot for once he was a trespasser and his intent was manifest But if one distrein as Bailiffe although in truth he is not Bailiffe if after he in whose right he doth it doth assent to it he shall not be punished as a trespassour for that assent shall have relation unto the time of the distresse taken and so is the book of 7. H. 4. And all that was agreed by Periam Shuttleworth What if hee distraine generally not shewing his intent nor the cause wherefore he distrained c. ad hoc non fuit responsum Rodes came to Anderson and said unto him If I having cause to distrain come to the Land and distraine and another ask the cause why I do so if I assigne a cause not true or insufficient yet when an Action is brought against me I may avow or justifie and assigne any other cause Anderson That is another case but in the principall case clearly the taking is not good to which Rodes agreed Mich. 28 29. Eliz. in the Common Pleas. 130 HOODIE and WINSCOMB'S Case IN an Attaint brought by Hoodie against Winscombe c. One of the Grand Jury was challenged because he was a Captain and one of the Petie Jury was his Lieutenant And it was holden by the whole Court that that was no principall challenge Windham It hath been holden no principall challenge notwithstanding that one of the Jurours was Master of the Game and one of the Petit Jury was Keeper of his Park And in that case it was holden by all the Justices That if a man make a Lease rendring rent upon condition that if the rent be behind and no sufficient distresse upon the Land that then the Lessor may re-enter If the Rent be behind and there be a piece of lead or other thing hidden in the Land and no other thing there to be distrained the Lessor may re-enter for the distresse ought to be open and to be come by for if it should be otherwise said a sufficient distresse one might inclose money or other things within a wall and thereby the Lessor should be excluded of his re-entry Mich. 28 29. Eliz. in the Common Pleas. 131 IN a Quare Impedit the Plaintiffe counted That the Defendant being Parson of the Church in question was presented to another Benefice and inducted 15 Aprilis and that the other Church became void c. The Defendant said That he was qualified at such a day which was after 15 Aprilis without that that he was inducted 15 Aprilis And the Court was of opinion Anderson being absent that it was no good Traverse for he ought to have said generally without that that he was inducted before the day in which he is alledged to be qualified As if one declare in Trespasse done 1 Aprilis and the Defendant plead a Release 1. Feb. he ought to traverse without that that the Trespasse was done before the Release by Periam Justice Mich. 28 29. Eliz. in the Common Pleas. 132 HALES and HOME'S Case IN an Avowry for Damage feasance one pleaded a Lease made unto him by I. S. the other said that before the Lease â— S. did enfeoff him the other replied and maintained the said Lease absque hoc quod J. S. seiâ—itus feoffavit Gawdy The Traverse is not formall for the word seisitus is idle and ought to be left out for he cannot enfeoff if that he were not seised and it hath never been seen that the seisin in such Case hath been traversed but generally in Pleading the Traverse hath been absque hoc that Feoffavit without speaking of seisin which is superfluous And so was the opinion of the whole Court Mich. 28 29. Eliz. in the Common Pleas. 133 THE Queen granted Lands unto the Earle of Leicester by her Letters Patents the Patentee made a Lease of
Eliz. in the Common Pleas. 146 LONDON doth prescribe to have a Custom That after Verdict given in any of the Sheriffs Courts or such like Court there that the Maior may remove any such Suit before himself and as Chancellor secundùm bonam sanam conscientiam moderate it and it was moved whether it were a reasonable custom or not because that after tryal by ordinary course at Law he should thereby stay judgment Gaudy Justice It ought to be before judgment otherwise it cannot be for the Statute of 4. H. 4. is that judgment given in any Court shall not be reversed but by Error or Attaint Vide Rastal Tit. Judgment Mich. 28. Eliz. in the Common Pleas. Rot. 2619. 147 GREENE and HARRIS Case IN an Ejectione firme upon a special Verdict it was found that one John Brenne was seised of a Manor where there were Copyholders for life and by Indenture leased a copyhold called Harris Tenure parcel of the Land in question to Peter and John Blackborow for eight years to begin after the death of Brenne his Wife and by the same Indenture leased all the Manor to them as before The Copyholder did surrender and Brenne granted a copy to hold according to the custom of the Manor Brenne and his Wife died So as the lease of Blackborow was to begin Peter entred and granted all his Interest unto a stranger and died John entred into the whole as Survivor and made a lease thereof to the Plaintiff and the Copyholder entred and he brought the action Shuttleworth for the plaintiff The question is whether the plaintiff shall have Harris Tenure as in gross or as parcel of the Manor and he conceived that because it is named by it self that it shall pass as in gross for so their intent appeareth to be In 33. H. 8. Dyer 48. A Feoffment was made of a Manor to which a Villein was Regardant by these words viz. Dedi unam acram c. And further Dedi concessi Villanum meum and there it was holden that the Villein should pass as in gross and that they were several gifts although there was but one Deed. The same Law shall be of an Advowson appendant 14. and 15. El. Dyers Husband and Wife were joint-tenants in Fee of a Manor out of which the Queen had a Rent of twenty pound per annum and she by her Letters patents in Consideration of Money paid by the Husband did give grant release and remise unto the Husband and his heirs the said twenty pound Rent habendum percipiendum to him and his heirs The Husband did devise the Rent unto another and his heirs and dyed There it is debated whether the Wife should pay the Rent or not and it was holden that she should pay it for the deed having words of grant and release it shall be referred to the Election of the Husband and for his best avail how he will take it and there is no necessity that the Rent be extinguished in his possession for it is a maxime in Law that every grant shall be taken beneficially for the grantee so is it if it contain words of two intents he may take that which makes best for him 21. and 22. H. 6. A deed comprehending Dedi concessi was pleaded as a Feoffment In 5. E. 3. A Rent issuing out of Lands in Fee was granted to Tenant by the courtesie to have and to hold to him and his heirs It shall not be taken as extinct but the Rent shall go to his heires although he himself could not have it Then in our Case because it is more beneficial for the Termor he shall have it in gross And so he shall avoid the Estate of the Copyholder afterwards and here is an Election made by Peter so to have it by the grant of his Interest over Our Case is not like unto the Case of 48. E. 3. 14. Where a Cessavit was brought supposing that the House was holden of the Plaintiff by five Shillings and the Defendant pleaded that the Ancestor of the Plaintiff by his deed which he shewed forth gave the house to him and a shop which are holden by one intire service and demanded judgment c. And there it was holden that that deed did not prove but that the shop might be parcel of the house and not a shop in gross by it self And there Finchdon saith That if a man grant the Manor of F. to which an Advowson is appendant and the Advowson of the Church of F. so as it is named in gross yet it shall pass as appendant I yeild to that for there it is not more beneficial for him the one way or the other as it is in our Case It may be perhaps objected That the Plaintiff here shall not recover at all for the cause alleadged in Plo. Comm. 424. in Bracebridges Case because that the action is brought for a certain number of Acres as one hundred Acres and it is found that the Plaintiff hath right but to a moyty of them But it hath been ruled against that viz. that he shall recover Walmesley Sergeant contrary Notwithstanding that this Copy-hold be twice named yet it shall pass as parcel of the Manor and not as a thing in gross and there is but one Rent one Tenure and one reversion of both 45. E. 3. A Fine was levyed of a Manor unto which an Advowson was appendant wherein a third part was rendred back to one for life with divers Remainders over And so of the other two parts with the advowson of every third part as abovesaid and there it is debated who shall have the first avoidance And it is holden notwithstanding the Division as aforesaid and the naming of one before the other that they are all Tenants in common of it So as if they cannot agree to present that Lapse shall incurre to the Bishop and there no Prerogative is given to him who is first named nor any prejudice to the last named for being by one Deed it shall passe uno flatu 14. H. 8. 10. A Lease was made for a year Et sic de anno in annum c. And there it was debated whether it were a severall Lease for every year and it was ruled That an Action might be brought supposing that he held for one and twenty years if in truth by force of the same Demise the Lessee occupy the Land so long And if I by my Deed grant unto A. and B. the services of I. D. and by the same Deed the services of I. S. are also granted unto them they are Joyn-tenants of the Services or Seignories So if I lease a Manor reciting every parcell of the Land of the Manor for the whole consists in severall parcels In 33. H. 8. before remembred It is said That the Advowson shall be appendant if the whole Manor be granted c. But if it be admitted that there be severall Leases and that it passeth as a thing in grosse
to the extinguishment of the Bond by the release of all Actions But the Court conceived That the Arbibitrament did consist of two matters which were distinct and might be severed For although that the Arbitrament be void as to one matter yet it shall stand good and shall be a good Arbitrament for the other matter And Foster Justice said That in that case the Award to make the Release might be severed viz. That it should be good for all Actions except the Bond. Cook contrary And said That it is so entire that it cannot be divided But the Court conceived That the Arbitrament was good as to the Bond to be made by the Defendant although it were void as to the Arbitrator At another day Dodderidge said That the Plaintiffe had not alledged any Breach of the Arbitrament for he hath put it That the Defendant and the Arbitrator had not entred into the Bond and although they two joyntly had not entred into the Bond yet it might be that the Defendant alone had entred into the Bond and it needed not that the Arbitrator enter the Bond for as to him the Arbitrament was void And that Exception was allowed as a good Exception by the whole Court. For they said That the Plaintiffe ought for to shew and alledge a breach according to the Book of L. 5. E. 4. 108. And they said That although it be after verdict yet it is not remedied by the Statute Pasch 8. Jacobi in the Common Pleas. 231 FOLIAMBES Case IN a Writ of Dower brought by the Lady Foliambe It was agreed by the whole Court That if the Husband maketh a Lease for years rendring rent and dieth the wife shall recover her Dower and shall have present Execution of the Land and thereby she shall have the third part of the Reversion and of the Rent and execution shall not cease And all the Justices said That the Sheriffe should serve execution of the Land as if there were not any Lease for years for it may be that the Lease for years is void And although it be shewed in pleading that there is a Lease for years the wife cannot answer to it and it may be there is not any Lease and therefore the Execution shall be generall And he who claimes the Lease for years may re-enter into the Land notwithstanding the Recovery and the Execution of the Dower And if he be ousted he shall have his Action Nichols Serjeant who was of Councell against the Demandant said That he would agree that the Case in Perkins 67. was not Law But the Justices said That there is a difference betwixt the Case of Perkins and this Case for in the Case in Perkins the Husband had but an estate in Remainder so as no rent or attendancy was due so as the wife during that Term could not have any benefit Also in this case it was agreed by the Court That after judgement for part the Demandant might be Non-suit for the residue and yet have execution of that part for which he had judgment Pasch 8. Jacobi in the Common Pleas. 232 RAPLEY and CHAPLEIN's Case IT was ruled by the whole Court That if a Custome be alledged That the eldest daughter shall solely inherit that the eldest sister shall not inherit by force of that Custome So if the Custome be That the eldest daughter and the eldest sister shall inherit the eldest Aunt shall not inherit by that Custome And so if the Custome be that the youngest son shall inherit the youngest brother shall not inherit by the Custome And Foster Justice said That so it was adjudged in one Denton's Case Pasch 8. Jacobi in the Common Pleas. 233 SEAMAN's Case BArker Serjeant prayed the opinion of the Court in this Case Lessee for an hundred years made a Lease for forty years to Thomas Seaman if he should live so long and afterwards he leased the same to John his son Habendum after the Term of Thomas for 23. years to be accounted from the date of these presents The Question is If the Lease to John shall be said to begin presently or after the Term of Thomas And the Justices were cleer of opinion That the Lease to John shall not be accounted from the time of the date but from the end of the Term of Thomas because that when by the first words of the Limitation it is a good Lease to begin after the Term of Thomas it shall not be made void by any subsequent words And Cook Chiefe Justice said That this is no new reason for there is the same reason given in 2. E. 2. Grants And he put the Case in Dyer 9. Eliz. 261. and said That if the Limitation be not certain when the Term shall begin it shall be taken most beneficiall for the Lessee Pasch 8. Jacobi in the Common Pleas. 234 WARD and POOL's Case AN Action upon the Case was brought for speaking these words Thou mayest well be richer then I am for thou hast coined thirty Shillings in a day thou art a Coiner of money c. I will justifie it It was moved in arrest of Judgment That the words were not Actionable because he might have a good Authority to coine Money for men who work in the Mint are said to coine Money and are called Coiners of Money And so it was adjudged Quod Querens nihil capiat per Billam Pasch 8. Jacobi in the Common Pleas. 235 CHALK and PETER's Case CHalk brought a Replevin against Peter the Defendant did avow the taking as Bailiff of Sir Francis Barrington in sixteen Acres of wood in Hatfield Chase and shewed that an Arbitrament was made by the Lord Burghley late Lord Treasurer betwixt the Lord Rich and the Ancestors of Sir Francis by which it was awarded That the said Ancestors of the said Sir Francis Barrington and his Heirs should have the herbage of a certain number of Acres within the said Chase and also that he should have to him and his Heirs the Trees and Bushes of the said number of Acres within the said Chase and that he might fell and cut sixteen Acres every year of the said Acres and that he should enclose them according to the Laws and Statutes of the Realm and that Assurance was made by the Lord Rich accordingly and that the same was confirmed by a speciall Act of Parliament with a saving of the right and interest of all strangers and said That Sir Francis Barrington did inclose and cut down sixteen Acres and did enclose the same and there took the Defendants cattel Damage feasants upon which the Defendant did demurr in Law The Question in the case was If by the Statute of 22. E. 4. cap. 7. or the Statute of 35. H. 8. câ—p 17. which give Authority to make inclosures of Woods the Commoner shall be excluded Harris Serjeant I conceive That the Commoner shall be excluded by the Statute of 22. E. 4. cap. 7. which gives Authority to inclose and exclude all Beasts and
in tail may have a Formedon against the Bishop But in our Case it is otherwise Tenant in tail maketh a Feoffment and takes back an estate unto himself in tail the remainder in Fee to his right heirs The Bishop in such case shall not have the land forfeited for Treason because that the Bishop cannot have the estate tail but in such case the King shall have the Land by the Statute of 26 H. 8. cap. 13. And the Bishop in such case shall not have the Fee because it is one estate and the King shall not wait upon the Subject viz the Bishop The Right waits upon the possession For 11 H. 7. 12. If the son and a stranger disseiseth the father and the father dyeth this right infuseth it self into the possession and changeth the possession And it is a Release in fact by the father to the son 9 H. 7. 25. Br ' Droit 57. A Disseisor dyeth seised and his heir enters and is disseised by A. The first Disseisee doth release unto A. all his right All the right is now in the second Disseisor viz. A. because the right and the possession meet together in A. 40 E. 3. 18. b. Tenant in tail makes a Lease for life with warranty If Tenant for life be impleaded by the heir to whom the warranty doth discend he shall rebut the right in tail being annexed with the possession for that is in case of a saving of the land by that right But where one demands land there all the Right ought to be shewed 11 H. 4 37. If a man be to bring an Action to recover then he ought to make a good title by his best right if he hath many rights But if a man be in possession and an Action be brought against him then he may defend himself by any of his rights or by all his rights 11 H. 7. 21. Tenant in tail maketh a Feoffment to his use upon Condition and afterwards upon his Recognisance the land is extended and afterwards the Condition is performed yet the interest of the Conusee shall not be avoided For although the Extent come upon the Fee and not upon the Tail yet when the Extent was it was extracted out of all the rights C. 7. part 41. A Tenant in tail makes a Lease for life now he hath gained a new Fee by wrong and afterwards he makes a Lease for years and Tenant for life dyeth He shall not avoid his Lease for years although he be in of another estate because he had a defeicible title and an ancient right the which if they were in several hands shall be good as the Lease of the one and the Confirmation of the other And being in one hand it shall be as much in Law as a saving of the Right In our Case the Right and Possession both were in Francis Bigot And Ratcliffe is entitled to the old estate tail and to the new also There is a difference betwixt him who claims the land so forfeited to the King and the heir of the body of the person attainted Littâ—719 Land is given to A and the issue males of his body the remainder to the heirs females of his body If the Father commit Treason both heir male and female are barred for they both claim by the Father but if the heir male after the death of his Father be attainted of Treason the King shall have the lands as long as he hath issue male of his body and then the heir female shall have the lands for she shall not forfeit them because she claimeth not by the brother but by the father Com. in Manxels case A man hath three several rights of estate tails and comes in as Vouchee If the Recovery pass it shall bar all his Rights for one Recompence and they shall be all bound by one possession There is a difference where the Kings title is by Conveyance of the party and where for forfeiture for Treason by this Statute of 26 H. 8. cap. 13. v. the Abbot of Colchesters Case The Abbot seised in the right of his house did commit Treason and made a Lease for years and then surrendred his house to the King after the Statute of 26 H. 8. The question was whether the King should avoid the Lease It was adjudged That the King was in by the surrender and should not avoid the Lease and not by the Statute of 26 H. 8. But if the King had had it by force of the Statute then the King should have avoided the Lease Com. 560. Tenant in tail the reversion to the King Tenant in tail maketh a Lease for years and is attainted of Treason The King shall avoid the Lease upon the construction of the Statute of 26 H. 8. which gives the lands unto the King for ever The third point is upon the Remitter This point had been argued by way of Admittance For as I have argued The ancient right is given away unto the King and then there is no ancient right and so no Remitter There is a difference where the issue in tail is forced to make a Title and where not In point of defence he is not so precisely forced to make his Title as he is in case of demand Whereas the Defendant demands the lands from the King the Discent will not help him because the Attaindor of the Ancestor of Ratcliffe hinders him in point of title to make a demand Dyer 332 b. In this case he ought to make himself heir of the body of Francis Bigot and Katharine C. 8. part 72. C. 9. part 139 140. There Cook couples the Case of Fine levied and the Case of Attaindor together C. 8. part 72. Land is given to husband and wife and to the heirs of their two bodies The husband alone levies a Fine with proclamations Or is attainted of Treason and dyeth The wife before Entry dyeth The issue is barred and the Conusee or King hath right unto the land because the issue cannot claim as heir to them both viz. father and mother for by the father he is barred 5 H. 7. 32 33. C. 9. part 140. Husband and wife Tenants in tail If one of them be attainted of Treason as it was in our Case the lands shall not discend to the issue because he cannot make title And there Cook puts the Case That if lands be given to an Alien and his wife they have a good estate tail and yet it is not discendable to the issue The Consequence then of all this is That if Ratcliffe cannot take advantage of the discent by reason of the disability by Attaindor à fortiori he shall not be remitted And yet I confess that in some Cases one may be remitted against the King Com. 488 489 553. But that is where the King is in by matter of Law by Conveyance but in this Case the King is in by an Act of Parliament and there shall be no Remitter against a matter of Record Another reason is because that
be quashed and exonerated and discharged in the possession of the King For it is out of the Rule which is in C. 10 part 48 for the cause of quieting and repose of the Terre-Tenants otherwise it would be a cause of Suits But all Rights Tythes Actions c. might for the same reasons viz. for the quiet of the Terre-Tenants and the avoidance of Suits and Controversies be released to the Terre-Tennants By the same reason here the right of Action of Francis Bigot shall be discharged and exonerated by this forfeiture viz. for the quiet and repose of the Terre-Tenants for the Law delights in the quiet and repose of the Terre-Tenants If Francis Bigot had granted a Rent the ancient right of the tail had been charged C. 7. part 14. Where Tenant in tail makes a lease for life and grants a Rent charge and Tenant for life dieth he shall not avoid his charge although he be in of another Estate because he had a defeisible possession and an ancient right the which c. so as they could not be severed by way of conveyance and charge and no lawfull act Then I admire how he will sever this from himself by his unlawfull act viz. the Feoffment the discontinuance Lit. 169. If a man commit Treason he shall forfeit the Dower of his wife yet he doth not give the dower of his wife but it goes by way of discharge in those Lands 13 H. 7. 17. Tenant by the Curtesie in the life of his wife cannot grant his Estate of Tenant by the Curtesie to another but yet he for Felony or Treason may forfeit it viz. by way of discharge A Keeper of a Park commits Treason there the King shall not have the Office of Keeper for a forfeiture because it is an Office of trust but if he had been Keeper of the Kings Park and had been attainted there he should forfeit his Office by way of discharge and exoneration This Statute of 26 H. 8. hath been adjudged to make Land to revert and not strictly to forfeit Austin's Case cited in Walsingham's Case Tenant in tail the reversion in the King the Tenant makes a Lease for years and dies the issue accepts of the Rent and commits Treason the Lease is avoided for the King is not in by forfeiture by the Statute of 26 H. 8. but by way of Reveter by the Statute of 26 H. 8. It was objected that if Tenant in tail maketh a Feoffment and takes back an Estate for life and is attainted of Treason that he shall not forfeit his old right I agree that Case For indeed it is out of the Statute of 26 H. 8. which speaks of Inheritance and in that Case the Tenant hath but a Freehold The Statute of 26 H 8. saith that it shall be forfeited to the King his heirs and Successors And if in our Case the old right should remain then it should be a forfeiture but during the life of the Testator When the Common Law or Statute Law giveth Lands it gives the means to keep them as the Evidences So here the King is to have by force of this Statute of 26 H. 8. the Evidences The forfeiture of right is expresly within the Statute of 26 H. 8. as the forfeiture of Estate as by any right title or means for the old Estate tail is the means of Estates since 6 H. 8. And if you will take away the Foundation the Building will fall For all the Estates are drawn out of the old Estate tail The Statute of 26 H. 8. is not an Act of Attaindor for none in particular is attainted by the Act but the Act of 31 H. 8. doth attaint Francis Bigoâ— in particular It was objected that here in this case there needed not to be any express Saving I answer that there are divers Statutes of Forfeitures yet the Statutes have Savings in them so as it seems a saving in such Acts were not superfluous but necessary The Act of 33 H. 8. for the attainder of Queen Katharine there is a saving in the Act and yet an Act of Forfeiture Dyer 100. there the land vested in him in the Remainder by force of a saving in the Act so the saving is not void but operative C. 3. part Dowlies Case vid. the Earl of Arundels Case there the saving did help the wife so it appears savings are in Acts of Parliaments of Forfeiture and Acts of Attaindor Dyer 288 289. The Bishop of Durham had Jura Regalia within his Diocese and then the Statute of 26 H. 8. came now whether the Forfeiture for Treason should be taken away from the Bishop by reason of that Statute and given to the King was the doubt It was holden that of new Treasons the Bishop should not have the Forfeitures for those were not at the Common Law as the Forfeitures of Tenant in tail but that he should have the Forfeitures of Lands in Fee within his Diocese and that he had by force of the saving in the Statute so that a Saving is necessary and operative Com. Nichols's Case there Harpers opinion that there needs no saving to strangers but yet a saving is necessary for the Partie and the Issue if they have any thing as well as strangers vid. C. 3. part Lincoln Colledg Case It is the Office of a good Interpreter to make all the parts of a Statute to stand together Com. 559. By these general words Lose and Forfeit and by excluding of the heir in the saving the heir is bound So the Judges have made use of a Saving for it is operative 2 Ma. Austin's Case cited in Walsinghams Case Tenant in tail the Reversion in the Crown Tenant in tail made a Lease for years and levied a Fine to the King the King shall not avoid the Lease for the King came in in the Reverter but in such Case if he be attainted of Treason then the King shall avoid the Lease So a Statute of Forfeiture is stronger then a Statute of Conveyance By this Statute of 26 H. 8. Church Land was forfeited for so I find in the Statute of Monasteries which excepts such Church Lands to be forfeited for Treason Dyer Cardinal Poole being attained did forfeit his Deanary and yet he was not seised thereof in jure suo proprio for it was jus Ecclesiae 27 E. 3. 89. A writ of Right of Advowson by a Dean and he counteth that it is Jus Ecclesiae and exception that it is not Jus suae Ecclesiae But the Exception was disallowed for the Jus is not in his natural capacitie but in his politique capacitie and yet by this Statute of 26 H. 8. such Church Land was forfeited for Treason this is a stronger Case then our Case Vide C. 9. part Beaumont's Case Land is given to husband and wife in tail and the husband is attainted of Treason the wife is then Tenant in tail yet the Land is forfeited against the issue although it be but a possibility for the whole estate
Iacobi in the Kings Bench. 430. OWFIELD against SHIERT A Writ of Error was brought to reverse a Judgment given in an Action of Debt The Action of Debt was upon a Concessit solvere c. pro diversis summis pecuniae and the opinion of the Court was That Debt doth not lie upon Concessit solvere pro diversis summis c. because it is incertainty But the same Term in another Case viz. Stacies Case That by Custom of London it was holden that Debt doth lie upon a Concessit solvere pro diversis summis And it was then said That in an Action upon the Case it was good to say That in consideration de diversis summis Concessit solvere and so it hath been adjudged Trin 21 Jacobi in the Kings Bench. HAWKSWITH and DAVIES Case Intratur 431. Pasch 19. Jur. Rot. 83. LEssee for years of divers parcels of Lands reservant Rent and for not payment a reentrie The Lessee assignes part of the Land to A. and other part to B. and keeps a part to himself afterwards the Lessee levies a Fine of all the Lands unto the use of the Conusee and his heirs afterwards the Lessee paies the Rent for the whole unto the Conusee and afterwards the Rent becomes behind and the Conusee enters for the Condition broken and made a Lease to the Plaintiffe who thereupon brought an Ejectione firme and all this matter was found by special Verdict and it was moved that by the assigning of the Lessee of part of the lands to one and part to another that the Condition was gone and destroyed but notwithstanding it was agreed by all the Justices that the Condition did remain and was not gone nor destroyed And they said that this Case was not like unto Winters Case in Dyer 308 309. where the Lessor did assigne over part of the Reversion to one and part unto another for that in that Case the Lessor by his own Act had destroyed the Condition but in this Case it is the Act of the Lessee and therefore no colour that the Condition be gone and destroyed And so it was resolved for the Plaintiffe and Judgment given accordingly Trin. 21 Jacobi in the Kings Bench. 432. KILLIGREW and HARPER'S Case HArper in consideration of 100l. doth assume and promise to Killigrew That the Lady Weston and her Son shall sell to Killigrew such Lands Proviso that Killigrew such a day certain pay to the said Lady and her Son 2000l At which time the Lady and her Son shall be ready to assure and convey to Killigrew the said lands And for want of payment of the said 2000l at the said day that Killigrew shall lose the said 100l. and that the Contract for the Land shall be void Killigrew brought an Action upon the Case sur Assumpsit against Harper and all this matter was found by special Verdict Athow Serjeant argued that the Action would lie because the Lady and her Son were to do the first act viz. to make the Assurance 22 H. 6. 57. Rent is reserved upon a Lease for years in which are divers Covenants and a Bond is given for the performance of all the Covenants within such Indenture of Lease the Rent is behind the Bond is not forfeited unlesse the Lessor doth make a demand of the Rent because the Lessor is to do the first act viz. to demand the Rent Yelverton contr ' That the Action will not lie The question is Of whose part is the breach The Assumpsit is grounded upon the Consideration and not upon the Promise The Jury find that Killigrew was not ready to pay the 2000l. and that the Lady and her Son were not ready to assure the land The Agreement was for which not time is expressed That the Lady and her Son should convey such lands Then the Agreement was That Killigrew should pay at such a day certain at which day the Lady should be ready c. and if Killigrew made default of the payment of the 2000l. then he was to lose the said 100l. which he gave to Harper to procure the Bargain and also that the Bargain should be void Ley Chief Justice If Killigrew had paid or tendred the 2000l. at the said day and the Lady and her Son had not been ready at that time to have assured the lands Killigrew should have had an Action upon the Case for the 100l. and recovered damages If the Lady had been to have done the first action then the Action would have been maintainable but in this Case Killigrew is to do the first act and therefore the Action will not lie Dodderidge If it had been indefinite then the Assurance and Conveyance is to be before the Payment but here the bargain is to pay the mony first Harper promiseth to Killigrew in consideration of 100l. that Killigrew shall buy such lands then comes the time of payment and assurance of the land at that time shall be made Proviso that if he do not pay the 2000l then Killigrew to lose the 100l. and the Contract to be void so there are two penalties so as of necessity the 2000l must first be paid for otherwise how can the Contract be void for not payment For if the Conveyance shall be first made then it was present before the mony paid and so the clause viz. Then the Contract to be void should be of no effect Haughton Justice agreed Chamberlain Justice You have bound your self with a penalty and the bargain ought to be performed as it was made And so being made that the mony should be first paid at which time the conveyance shall be made and for want of payment that Killigrew should lose the 100l. and also the Contract to be void The opinion of the whole Court was against the Plaintiffe that the Action would not lie and so Judgment was given Quod nihil capint per Billam Trin. 21 Jacobi in the Kings Bench. 433. Sir ARTHUR GORGE and Sir ROBERT LANE'S Case AN Action of Debt was brought upon a Bond for not performance of Covenants The Case was Lane did marry with the daughter of Gorge and in consideration of marriage and also of 3000l portion given in marriage by Gorge Lane did covenant That he within one year would make a Jointure of lands within England then of the value of 500l per annum over and above all Reprises to his said wife so as Sir Henry Yelverton and Sir John Walter Councellors at Law should devise and advise In Debt for the breach of these Covenants Lane pleaded That he did inform Gorge of lands which he was determined should be for her Jointure but neither Yelverton nor Walter did devise the Assurance Paul Crook did demur upon the Plea and first shewed That Lane did not give notice to Yelverton and Walter as he ought to have done by law For in this case it is not sufficient to give notice to Gorge but the notice ought to be to the Councellors otherwise how could
the Kings Bench by the opinion of the whole Court the Judgment was reversed Trin. 21 Jacobi Intratur Hill 20 Jac. Rot. 137. in the Kings Bench. 444. KITE and SMITH's Case ONe Recovered by Erronious Judgment and the Defendant did promise unto the Plaintiffe That if he would forbear to take forth Execution that at such a day certain he would pay him the debt and damages And Action upon the Case was brought upon that Promise And now it was moved by the Defendants Councel That there was not any Consideration upon which the Promise could be made because the Judgment was an Erronious Judgment It was adjourned But I conceive that because it doth not appear to the Court but that the Judgment is a good Judgment that it is a good Consideration Otherwise if the Judgment had been reversed by a Writ of Error before the Action upon the Case brought upon the Promise for there it doth appear judicially to the Court that the Judgment was Erronious Trin. 21 Jacobi in the Kings Bench. 445. TOTNAM and HOPKIN's Case AN Action upon the Case was brought upon an Assumpsit And the Plaintiff did declare That in Consideration of c. the Defendant 1 Martii did promise to pay and deliver to the Plaintiffe 20 Quarters of Barley the next Seed-time Upon Non Assumpsit pleaded it was found for the Plaintiffe It was moved for the Defendant That the Plaintiffe ought to have shewed in his Declaration when the Seed-time was which he hath not done But it was answered That he needeth not so to do because he brings his Action half a year after the Promise for not payment of the same at Seed-time which was betwixt the Promise and the Assumpsit Dodderidge Justice If I promise to pay you so much Corn at Harvest next If it appeareth that the Harvest is ended before the Action brought it is good without shewing the time of the Harvest for it is apparent to the Court that the Harvest is past And here the Action being brought at Michaelmas it sufficiently appears that the Harvest is past And Judgment was given for the â—laintiffe Trin. 21 Iacobi Iatratur Hill 1â— Iacobi Rot. 652. inter Hard Foy in the Kings Bench. 446. KELLAWAY's Case IN an Ejectione Firme brought for the Mannor of Lillington upon a Lease made by Kellaway to Fey It was found by a special Verdict That M. Kellaway seised of the Mannor of Lillington in Fee holden in Soccage did devise the same by his Will in writing in these words viz. For the good will I bear unto the name of the Kellawayes I give all my Lands to John Kellaway in tail the Remainder to my right Heirs so long as they keep the true intent and meaning of this my Will To have to the said John Kellaway and the heirs of his body untill John Kellaway or any of his issues go about to alter and change the intent and meaning of this my Will Then and in such case it shall be lawfull to and for H. Kellaway to enter and have the Land in tail with the like limitation And so the Lands was put in Remainder to five several persons the Remainder to the right heirs of the Devisor M. Kellaway dyed without issue John Kellaway is heir and entred and demised the same to R. K. for 500 years and afterwards granted all his estate to Hard. Afterwards John Kellaway did agree by Deed indented with W. K. to levy a Fine of the Reversion to W. and his heirs H. Kellaway entred according to the words of the Proviso in the Will and made the Lease to Foy who brought an Ejectione Firme against Hard. And whether H. Kellaway might lawfully enter or no was the Question It was objected That in the Case there is not any Forfeiture because the Fine was without proclamations and so it was a Discontinuance only The first Question is If the Remainder doth continue The second is If it be a Perpetuity or a Limitation John Kellaway is Tenant in tail by Devise untill such time as John Kellaway or any of his issues agree or go about to alter or change the estate tail mentioned in the Will with Proviso to make Leases for 21 years 3 lives or to make Jointures Then his Will is That it shall be lawfull for H. K. to enter and to have the Land with the same limitations If it be a Perpetuity then it is for the Plaintiffe but if it be but a Limitation then it is for the Defendant The Fine was levied without proclamations and H. K. entreth for the Forfeiture Damport It is no Perpetuity but a Limitation which is not restrained by the Law as Perpetuities are Untill such time as c. shall discontinue c. The Jury find an Agreement by Indenture The act which is alleadged to be the breach is Conclusivit agreavit not to levy a Fine with proclamations but to levy a Fine without proclamations which is but a Discontinuance Yelverton If the Fine had been with proclamations then without doubt he in the Remainder during the life of him who levied it had been barred The Devise was To have to them and to the heirs of their bodies so long as they and every of their issues do observe perform fulfill and keep the true meaning of this my Will touching the entailed Lands in form following and no otherwise And therfore I M. Kellaway do devise unto John Kellaway the issue of his body the Remainder c. â—o have to the said John Kellaway and the issue of his body untill he or any of his issue shall go about to conclude do or make any act or acts to alien discontinue or change the true meaning of this my Will That then my Will is and I do give and bequeath to H K in tail And that it shall be lawfull for him the said H. K. or his issue to enter immediately upon such assent conclusion or going about to conclude c. And that H. K. and his issue shall leave it untill he or any of them go about c. C. 9 part Sundayes Case 128. where it was resolved That no Condition or Limitation be it by act executed or by limitation of an Use or by a Devise can bar Tenant in tail to alien by a common Recovery v. C. 3. part acc The Case was not resolved but it was adjourned to another day to be argued and then the Court to deliver their opinions in it Trin. 21. Intratur Trin. 20 Jacobi Rot. 811. in the Kings Bench. 447. KNIGHT's Case IN this Case George Crook said That Land could not belong to Land yet in a Will such Land which had been enjoyed with other might pass by the words cum pertinaciis As where A. hath two houses adjoyning viz. the Swan and the Red-Lyon and A. hath the Swan in his own possession and occupieth a Parlour or Hall which belongs in truth to the Red-Lyon with the Swan-house and then leaseth the Red-lyon
The want of a letter out of a word is out of the Statutes C. 8. part You should have alleadged some place The Statute of 21 Jacobi is not of any Venire facias which is misawarded generally but the Statute helpeth when there are two places and the visne ought to come from both places and the visne comes but from one place and when there is but one place and the visne comes from two places If Enfancie be to be tryed sc If he were at such a time within age it ought to be tryed by the Country This matter is collateral to the first Record and it is a new Record sc upon Error The whole Court was of opinion that it was out of the Statute and a Repleader was granted Whitlock Justice There is no Trial at all for there is no Venire facias at all Dodderidge Justice If the Defendant in Error plead an ill plea he shall replead But if in this Action he had alleadged a place of his Enfancie sc at Dale and the Venire facias had been of Sale there it had been good trial and there he should not replead for that he hath pleaded well but there he shall have a Venire facias de novo Pasch 3 Caroli in the Kings Bench. 470. DAY 's Case DAY was Indicted for erecting of a Cottage It was moved that the Indictment was insufficient for that the words of the Statute of 31 Eliz. cap. 7 are Shall willingly uphold maintain and continue And the Indictment is only That he continued and so wants the words voluntarily upheld according to the Statute 2. It did not appear in the Indictment that it was newly erected for it is only that he continued but not that he erected The Indictment was quashed because being a penal Law it was not pursued Pasch 3 Caroli in the Kings Bench. 471. MAN's Case MAN was Indicted That he fuit adhâ—â—c est a common Barrettor and no place is expressed where he was a Barrettor so as no trial can be Dodderidge Justice If he be a Barrettor in one place he is a Barrettor in all places The Indictment was Per quod he did stir up contentions Jurgia And no place alleadged where he did stir up Jurgia contentions And it was said that in that case the place was very material And so the Indictment was quashed for want of setting forth the place where he did stir up many Contentions Jurgia c. Pasch 3 Caroli in the Kings Bench. 472. GREEN and MOODY'S Case AN Action of Debt was brought for Rent and it was found for the Plaintiff Thyn Serjeant moved in arrest of Judgment and set forth the Case to be That a Lease was made for years to begin at Michaâ—lmaâ— after And the Plaintiff in the Action of Debt for the Rent did declare Virtuâ—e cujus the Lessee did enter and did not shew what day according to Cliffords Case 7 E. 6. Dyer 89. But the Court said It is said in this Case Virtute cujus dimissionis he did enter and was possessed and that must be intended at Michaelmas Alexander and Dyer's Case 33 Eliz. was resolved accordingly And Cliffords Case Dyer 89. is not virtute cujus dimissionis And the Court held a difference betwixt Debt and Ejectione firme Cliffords case was an Ejectione firme but here it is Debt Jones Justice If he did enter before Michaelmas yet Debt will lie for the Rent upon the privity of contract for the Lessee cannot destroy the contract unless he make a Feoffment It was adjudged for the Plaintiff Quaere If when the Lessor in the case which Jones put hath brought his action and recovered when the Lessee hath entred before the day If the Lessor shall put him out as a Disseisor by reason of the Recovery in the action of Debt in which he hath admitted him to be Lessee for years Or if the Lessor after he hath recovered in Debt dyeth whether his heir shall be estopped by the Record to say otherwise then that he is in by the Lease Or whether the Recovery in Debt hath purged the wrong Like unto the Case 14 H. 8. 12. by Carret If one entreth into my lands and claims 20 years therein and I suffer him to continue there and accept of the Rent and afterwards he committeth Waste I shall maintain an action of Waste and declare upon the special matter If one entreth into my Land claiming a Lease for years per Curiam he is a Disseisor and he cannot qualifie his own wrong Dyer 134. Traps case But Sir Henry Yelverton said That I may admit him to be Tenant for years if I accept of the Rent or bring Waste as Carret said 14 H. 4. But he hath not but for years in respect of his claim But I am concluded by acceptance of the Rent or by bringing of the action of Waste So here by the bringing of the action of Debt the Lessor is concluded But Quaere if it shall bind his heir It was conceived it shall because it is by Record the strongest conclusion that is Pasch 3 Caroli in the Kings Bench. 473. SMITH's Case A Lease for years was made of Lands in Middlesex and the Lessor brought Debt in London against the Assignee The opinion of the whole Court was that it was not well brought but the Action ought to have been brought in Midd. Jones Justice Debt for Rent upon the privity of Contract may be brought in another County but if it be brought upon the privity of Estate as by the Grantee of the Reversion or against the Assignee of the Lessee then it ought to be brought in the County where the Land is Quod nota Pasch 3 Caroli in the Kings Bench. 474. CREMER and TOOKLEY's Case AN action of Debt was brought for suing in the Court of Admiralty against the Statutes of 13 R. 2. cap. 5. 15 R. 2. cap. 3. whereby it is enacted That of manner of Contracts Pleas and Complaints arising within the body of the Counties as well by land as by water the Admiral shall in no wise have conusans And the Statute gives damages part to the party and part to the King And the Plaintiff in the action of Debt did declare That the Defendant Tookley did implead Cremer the Plaintiff in the Court of Admiralty And in his Declaration set forth That one Mullâ—beck was Master of a Ship c. and that the Contract was made in London And that Tookley the Defendant did force the Plaintiff to appear and prosecuted the suit upon the Contract in the Admiral Court And by special Verdict it was found That a Charter-party was made betwixt Mullibeck and Cremer at Dunkirk And that Tookley did prosecute Cremer in the Admiral Court by vertue of a Letter of Attorney and so that he as Attorney to Mullibeck did prosecute the suit there The Case was argued by Andrewes for the Plaintiff There are two points The first upon the Jurisdiction of the Admiralty the Contract
and Slingbyes case 361 Londons case 374 Ludlow and Stacies case 377 Loxe case 345 Lee and Grissels case 442 Leonards case 451 Lone and Hills case 458 Litfield and Melhers case 459 Langley and Stotes case 478 Lancaster and Kigleys case 507 Lovegrave and Brewens case 514 M MOuntjoyes Case 24 Macrowes Case 38 Marsh and Palfords Case 53 Megods Case 77 Miller and Gores Case 122 Mayes Case 173 Mannocks Case 191 Meâ—r and Ridouts Case 241 Marriots Case 248 Morris Case 265 Mounteagle and Pemeddocks Case 266 Meades Case 274 Miller and Reignolds Case 293 Manwoods Case 301 Maior of Yorks Case 360 Mildmays Case 416 Morgans Case 416 Morris and Clarks Case 435 Mellon and Herns Case 435 Mills Case 464 Marshes Case 465 Manns Case 471 Mutle and Does Case 480 Mole and Carters Case 484 Monk and Butchers Case 508 Moor and Hawkins Case 486 N NOrris and Salisburies case 154 Newton and Richards case 240 Newmans case 242 Newman and Babbingtons Case 250 Norton and Lysters case 291 Norton and Symms case 303 O OSborne and Trittels Case 99 Occoulds case 268 Owen alias Collins case 363 Owfield and Sheirts case 430 Ognels case 483 Offlies case 517 P POles case 13 Prideaux case 44 Plymptons case 116 Proctors case 168 Pinders case 185 Peto and Chitties case 193 Perepoints case 217 Piggot and Goddens case 221 Pitts and Wardels case 230 Prrrot and Kebles case 281 Porters case 302 Paynes case 308 Piggot and Pigots case 330 Prat and Lord Norâ—hs case 358 Paginton and Huets case 370 Plotts case 380 Pollyes case 403 Sir Iohn Parkingtons case 416 Pritchard Williams case 423 Philpot and Fielders case 427 Pye and Bonners case 443 Peters case 456 Pits and Horkley's case 458 Proctor and Cliffords case 468 Payn and Colleges case 490 Parks case 502 Palmers case 509 Perpoynt Thimblebys case 513 Pages case 717 Plats case 518 L. Pagets case 510 Q Quodds case 246 R ROots case 139 Rushwels case 186 Royley and Dormes case 260 Read and Hewes case 269 Rosseâ— and Walshes cass 296 Reorsbies and Cuffs case 316 Roe and Gloves case 332 Roberts and Hills case 434 Randal and Harveys case 452 Royden and Moulstons case 458 Roper and Roydons case 491 Roy and Hills case 517 S Skipwiths case 22 Savel and Cordels case 35 Sydenham Worlingtons case 40 Savacres case 47 Stargies case 75 Smith and Smiths case 88 Shotbolts case 91 Stransam and Colborns case 97 Strangden and Barcels case 163 Sayland and Ridlers case 177 Skipwith and Sheffields case 178 Stowels case 182 Sir John Spencer and Poyntz case 203 Stebbings case 239 Stones case 247 Sancford and Havels case 263 Sprat and Nicholsons case 283 Seymors case 307 Stowhridge Archers case 311 Smiths case 317 Sherloes case 347 Sheriff and Bridges case 349 Simpsons case 364 Smith and Staffords case 379 Slyes case 390 Spicer and Spicers case 398 Stewry and Stewryes case 410 L. Sheffield Ratcliffs case 417 Sadlers case 417 Snell and Bennets case 426 Shooter and Emets case 435 Stone and Roberts case 435 Sely and Flayles case 448 Seignior and Wolmers case 453 Stanton and Barneys case 458 Sherrington Worsleys case 465 Suttons case 476 Symmes case 477 Samson and Gatefields case 482 Scots case 487 Sommers case 489 Shortridge and Hills cases 492 Shirtford and Berrowes case 502 Syms and Smiths case 513 Simpsons case 518 Shackbolts 495 Spurlings case 479 T. THrogmorton and Terringhams case 37 Taylor and Ribera's case 90 Taylor and James case 195 Traherns case 321 Totnam and Hoskins case 445 Taylor and Askies case 455 Tollyn and Taylors case 469 Tanfield and Hirons case 486 Treventries case 488 Tucker and Carrs case 491 Taylor and Tomlyns case 511 Tennants case 507 Tompsons case 369 U. VIcar of Pancras case 63 Vernon and Grays case 145 Vaughans case 327 Veseys case 406 Vrry and Bowyers case 479 Vinior and Viniors case 515 W. VVEbb Potters case 25 Windsmore Hulberts Case 64 Wiseman and Wallmyers case 107 Wood and Ashes case 135 Warrens case 138 Widdal sir John Ashtons case 142 Winkefields case 152 Warners case 183 Whitlock and Hartwells case 184 Wilson and Wormels case 226 Woolseys case 249 Wekers case 257 Wright and Wrights case 262 Wetherell and Greens case 280 Wedlock and Hardings case 295 Wheelers case 315 Wormleighton and Hunters case 338 Whorewoods Case White and Moores case 340 Wrotesley Candishes case 354 Winscomb and Dunches case 376 Webb and Tucks case 392 Waite and Inhabitants of Stokes case 397 Webb and Paternosters case 401 Williams and Gibbs case 409 White and Edwards case 412 Wiseman and Denhams case 424 Waterer Montagues case 429 Wheeler Appletons case 434 Waterman and Cropps case 467 Whittie and Westons case 479 VVillis case 483 VVilliams and Floyds case 495 VValdrons case 509 Y. YArram and Bradshawes case 145 Yate and Alexanders case 408 Young and Englesfields case 422 Z. ZOuch and Bramports case 165 Zouch and Mitchels case 225 Zouch and Moores case 491 Mich. 17. Eliz. In the Kings Bench. 1. THis Case was moved to the Court. If an Abby hath a Parsonage appropriate in D. which is discharged of payment of Tithes and afterward the Abbot purchaseth part of the lands in the same Town and Parish where the Parsonage is That this land so purchased is discharged of Tithes in the hands of the Abbot For the Tithes were suspended during the possession of the Abbot in his own hands But after that the Abby was surrendred into the hands of the King Anno 30. H. 8. And afterwards the same possessions c. were given to King H. 8. by the Statute of 31. H. 8. cap. 13. as they were in the hands of the Abbot The question was Whether the Land so purchased by the Abbot before the surrender were discharged of payment of Tithes by the Statute or not And the opinion of Mr. Plowden was That they were not discharged of Tithes by the Statute For that no lands are discharged by the Statute but such lands as were lawfully discharged in right by composition or other lawfull thing And the lands in this case were not discharged in right but suspended during the possession of the Abbot in his own hands And so hee said it is when the Land is purchased by one and the Parsonage by another the right of Tithes is revived and the lands charged as before the purchase of the Abbot And so he said it had been adjudged Pasc 17. Eliz. In the Common Pleas. 2. A Man makes a Lease for Life and afterwards makes a Lease unto another for Years to begin after the death of Tenant for life The Lessee for yeers dieth intestate The Ordinary commits Administration The Administrators and the Tenant for life joyn in the purchase of the Fee-simple Two questions were moved The first was Whether the Fee were executed in the Tenant for life for any part 2. Whether the Term were gone in part or in all And the opinion
24. Eliz. in the Kings Bench. 19. IN an Action upon the Case upon a Promise The consideration was Where I. S. had granted a Term to I. D. That afterwards upon the request of I. S. I. D. did make to W. an Estate for four years upon which W. brought his Action And after Verdict it was moved in stay of Judgement that there was no good consideration and a difference taken where the Promise was upon the Grant and where afterwards If it were before then the Condition was good but if it were afterwards it was not good And it was adjudged That the Plaintiffe Nihil capiat per billam Pasch 24. Eliz. in the Kings Bench. 20. AN Action upon the Case upon a Promise was The Consideration was That in consideration that the Plaintiffe Daret diâ—m solutionis the Defendant Super se assumpsit and because he doth not say in facto that he had given day It was adjudged that no sufficient Consideration was alledged But if the Consideration were Quod cum indebitatus c. the same had been a good Consideration without any more for that implies a Consideration in it self Pasch 24. Eliz. in the Kings Bench. 21. IT was said by Cooke That the Chancellor or any Judge of any of the Courts of Record at Westminster may bring a Record one to another without a Writ of Certiorare because one Judge is sufficiently known one to the other as 5. H. 7. 31. where a Certificate was by the Chancellor alone and to this purpose is 11. H. 4. But that other Judges of base Courts cannot do nor Justices of the Peace as 3. H. 6. where the certificate by Suitors was held void Pasch 25. Eliz. In the Common Pleas. 22. SKIPWITH'S Case IT was found upon a speciall verdict in an Action of Trespass that the place where c. was Copy-hold land And that the Custome is That quaelibet foemina viro cooperta poterit devise lands whereof she is seised in Fee according to the custome of the Manor to her Husband and surrender it in the presence of the Reeve and six other persons And that I. S. was seised of the land where c. and had issue two Daughters and died and that they married husbands and that one of them devised her part to her husband by Will in writing in the presence of the Reeve and six other persons and afterwards at another day shee surrendred to the Husband and he was admitted and she died and her Husband continued the possession And the Husband of the other Daughter brought an Action of Trespasse Rodes Serjeant The Custome is not good neither for the Surrender nor for the Will for two causes One for the uncertainty of what estate shee might make a Devise and because it is against reason that the Wife should surrender to the Husband Where the Custome shall not be good if it be uncertain he vouched 13. E. 3. Fitz. Dum fuit infra aetatem 3. The Tenant saith that the lands are in Dorset where the Custome is that an Enfant may make a Grant or Feoffment when he can number twelve pence And it was holden that because it is uncertain when he can so do the Custome is not good 19. E. 2. in a Ravishment of Ward the defendant pleaded that the custome is that when the Enfant can measure an ell of cloth or tell twelve pence as before that he should be out of Ward and it is holden no good custom for the cause aforesaid 22. H. 6. 51. a. there a man prescribed That the Lord of D. had used to have Common for him and all his Tenants And because it is not shewed what Lord whether the Lord mediate or immediate it is adjudged no good custome And as to the Surrender it is against reason that the Wife should give to the Husband for a Wife hath not any Will but the Will of her Husband For if the Husband seised in the right of his Wife make a Feoffment in Fee and the Wife being upon the land doth disagree unto it saying that shee will never depart with it during her life yet the Feoffment is good and shall binde during the life of the Husband as it is holden in 21. E. 3. And therefore it is holden in 3. E. 3. Tit. Devise Br. 43. That a Feme covert cannot devise to her Husband for that should be the Act of the Husband to convey the land to himself And in the old Natura Brevium in the Additions of Ex gravi quaerela it is holden so accordingly And the Case in 29. E. 3. differs much from this Case For there a woman seised of lands devisable took an Husband and had issue and devised the lands to the Husband for his life and died and a Writ of Waste was brought against him as Tenant by the Courtesie and it was holden that it did lie and that he is not in by the Devise for the reason there is because he was in before by the Courtesie But as I conceive that Case will disprove the Surrender for in as much as he had it in the Right of his wife he could not take it in his own Right Also he took another Exception in the principal Case because that the wife was not examined upon the Surrender but none of the Justices spake to that Exception but when the Record was viewed it appeared that it was so pleaded Further He said That the devise was void by the Statute of 34. H. 8. Cap. 5. where it is said It is enacted That Wills and Testaments made of any Lands Tenements c. by women Coverts or c. shall not be taken to be good or effectual in Law And he said That this Statute doth extend to customary Lands And as to that all the Justices did agree That it is not within the Statute And as to the Statute of Limitations Andâ—rson chief Justice said That if a Lease for years which perhaps will not indure sixty years shall be taken strong this shall Anderson moved That if the Lord Lease Copyhold land by Word Whether the Lessee might maintain an Ejectione firme and he conceived not for in an Ejectione firmâ— there ought to be a Right in Fact And although it be by conclusion it is not sufficient for that the Jury or Judge are not estopped or concluded And he conceived That if Tenant at Will make a Lease for years that it is no good lease betwixt him and the Lessor but that he may well plead that he had nothing in the land Meade contrary but they both agreed That the Book of 14. E. 4. which saith That if Tenant at Will make a lease for years that he shall be a Disseisor is not Law Anderson said That the prescription in the principal Case was not good for it is Quod quaelibet foemina viro cooperta poterit c. and it ought to be that feme Coverts possunt and by the Custome have used to devise to the
Copyholder in Fee who by the Custome might surrender in Fee might make a surrender in taile without any speciall custome so to doe and he who may prescribe to make a Feoffment in Fee might make a Lease for life and it should be good quia omne majus continet in se minus Pasch 26 Eliz. In Communi Banco 27 IN a Writ of Dower the Defendant made her demand de tertia parte liberae faldae and Serjeant Gaudy moved if it were good without setting in certain for what cattell And it was held not good for if it be not of a certain number she shall not be thereof endowed no more then of a Common uncertain And if she do demand Common which is certain yet she shall not be endowed if she do not shew the certaintie of it Windham said That if the Common be uncertain that the woman shall be allowed for it But Meade said He doth not know how the allowance shall be made Pasch 25 Eliz. In the Exchequer Chamber 28 IT was holden in the Exchequer Chamber before the Treasurer and the Barons in the case of one Pelham That whereas the Queen had granted to him by Letters Patents That he should not be Bailiff Constable nor other Officer or Minister licet eligatur That if the Queen make him Sheriff of a County that he shall not be discharged by that Patent for that such Offices do not extend to Royal Offices as a grant of Amerciaments shall not extend to Amerciaments Royal. And also the making of a Sheriff is not by election but onely by denomination of the Queen So that if he have not these words besides licet eligatur per Nos he shall be Sheriff And that they said was also the opinion of Bromley Lord Chancellour Mich. 26 Eliz. In the King 's Bench. 29 IT was holden by the Court That if a man binde himself to perform the last Will of I. S. and he is made Executor that hee is bounden to pay Legacies without any demands Vide 11. E. 4. 10. a. 14. E. 4. 4. a. 20. E. 4. 28. Yet it was said That Pasch 25. Eliz. they put a difference where a man is bound to perform the last Will and when to perform the Legacies for in the later case the Law is ut suprà Hill 26 Eliz. In the Common Pleas. 30. IF I be bound that my Lessee shall take reap and carry his Corn peaceably without interruption and afterward in Harvest when he is reaping I come upon the land and say to him that he shall not reap any corn there but otherwise I do not disturb him The opinion of all the Justices was that for these words spoken by me upon the Land that I have forfeited my Bond. And yet it was urged by Serjeant Puckering That I was bound to suffer him to do three things scil to take to reap and to carry and all these things he hath done See the Case 47. E. 3. 22. where the saying to a Tenant by one Coparcener that he ought not to pay any thing to the other was a Disseisin Pasch 26. Eliz. in the Common Pleas. 31 A Man was bound in a Recognizance for his good behaviour and it was shewed that he was arrested for suspicion of Felony by a Constable and that he escaped from him to which he pleaded Not guilty Exception was taken because it was not shewed that a Felony was committed which might cause suspicion for that is traversable and per Curiam it need not for although no such felony was committed and although the arrest were tortious yet the Recognizor had forfeited his Recognizance by making an escape which is a Misbehaviour Pasch 26 Eliz. In the Common Pleas. 32 BUSHEY's Case PAul Bushey Vicar of Pancras leased his Vicarage to Doctor Clark the Glebe land and the Church and all things to the same belonging Excepting the housing reserving twenty pound rent yeerly at Lammas and Sancti Petri advincula by equall portions and if the Rent be behinde by the space of a month that then it should be lawfull for the Vicar to distrein And the Lessee was bound to peform all Covenants Articles and Agreements contained or recited within the same Indenture And 〈◊〉 rent not paid the 29 of August 25. Eliz the Vicar brought Debt upon the Bond To which the Defendant pleaded That the Rent was not demanded the 29 day of August upon which they were at issue and the Jury being ready at the Bar Walmesley said That the Enquest ought not to be taken for three causes First He hath made a lease of the Vicarage except the housing and the Plaintiff hath alledged the demand to be generall super terras glebales and hath not shewed where To that the Justices said It had been better to have said At such a gate or hedg or high-way but notwithstanding they did not allow of that Exception for if it were not well demanded it ought to be shewed of the other side The second exception was because the Enquest were all de Vicincto de Pancras and it might be that some of the Lands appertaining to the Vicarage did extend to Islington but that Exception was disallowed also The third Exception was because that the Vâ—nire facias did not well recite the Issue for the exception of the housing was left out and per Curiam it is not needfull that all be recited But if another issue then that upon which they were at issue had been recited it had not been good And afterwards the Enquest was taken and found for the Plaintiff But nothing was spoken whether there needed any demand in such case or not Pasch 26 Eliz. In the Common Pleas. 33 IF a man be presented unto a Benefice which is not above the value of six pound per annum and afterwards he is presented unto another of twenty pounds and afterwards is deprived for cause of Plurality The Ordinary must give notice to the Patron for that is at the common Law and untill Deprivation it is no Cession Trinity 26 Elizab. In the Common Pleas. 34 THROGMORTON and TERRINGHAM's Case IN a Replevin the Defendant did avow the taking of the cattell by reason that one A. held of him an Acre of land in the place where c. by fealty and sixteen shillings rent the rent payable at two Feasts of the year c. And the Plaintiffe said that he held the same acre and two others of the Avowant by fealty and sixteen shillings payable at one day absque hoc that he held the said 〈◊〉 by the services payable at two dayes c. Snagg The tenure cannot be traversed and 21 E. 4 the last case is the same case where the Avowry is made for 12 pence at four days and the Plaintiff said that he held by twelve pence payable at one day without that that he held by the Services payable at four dayes And there it is holden that the same cannot be an Encroachment because they
of the Term with the Remainder over And the Devisee of the Occupation of a Term hath one speciall Property and the Remainder another Property As if a Lease be extended upon a Statute the Conusee during the Extent hath one Property and he who is to have it afterwards another Property and the reason of the difference is apparent when the Occupation is devised and when the terme is devised for in the first Case he puts but only a confidence in the Devisee as it appears in Welkdens Case But in the other Case all the Property goes and there is no confidence reposed in the Devisee And there is a Case in the very Point with which I was of Councell and was decreed in the Court of Chancery it was one Edolf's Case Where the Devise was of a terme the Remainder to another and he made the Devisee his Executor and he entred Virtute donationis as in this Case and it was decreed That the Executor might alien the Terme and that the Remainder could not be good And to this purpose Vid. 33. H. 8. 2 E. 6. 37 H. 6. 30. But if there might be a Remainder yet Incertae Personae nulla donation for if all the Children be preferred then the Remainder is void and then the Property of the Lease is in the Wife and she might preferre her at any time during her life and the generall property cannot be in another but in the Executor for the Legatee cannot enter although that 27 H. 6. seemeth to be contrary And if the whole Property be in the Wife her Husband might alien it and therefore it may be extended for his Debt as 7. H. 6. 1. is But it may bee objected That the Cases before put are of a devise of a Term and this is of a Lease That makes no difference for in Wroâ—â—slâ—y's Case Lease there is said to contain not only a terme but also the years to come in the terme Then the Question is If by the sale of the Sheriff upon the Fieri facias if the term be so gone that the Wife shall not have it by the Reversall of the Judgment by Error for the Judgement is that the Party shall be restored to all that which he hath lost It is very cleer that it shall never return for if it should be so then no sale made by the Sheriffe might be good unlesse the Judgement be without Error which would be a very great damage to the Common Wealth And also by reason and by the Judgment in the Writ of Error it should not be so restored for the Judgment is That he shall be restored to all that which he hath lost ratione judicii and here the Defendant hath not lost any thing by force of the Judgment but by force of the Execution For the Judgment was to have Execution of 200 li and of the 200 li. he shall be restored again and not of the Lease And therefore in 7. H. 7. If a Manor be recovered and the Villains of the Manor purchase Lands and afterwards the Judgment is reversed by Error the Recover or shall have the Perquisite and the other shall not be restored to it And 7. H 7. A Statute was delivered in Owell maine and a recovery was by the Conusee upon Garnishment of the Conusor and the Conusee had Execution and afterwards the Judgement is reversed by Error yet the Conusor shall not be restored to the Land taken in Execution but only the Statute shall be redelivered back where it was before And in this Case if the party should be restored to the term it should be great inconvenience Also if I give one an Authority upon Condition and the Party doth execute the Authority and after the Condition is broken the Act is lawfull by him who had Authority upon Condition And so was the Lord of Arundels Case where the Feoffee upon Condition of a Manor granted Coppies it was holden That the Grants made by him were good notwithstanding the Condition was afterwards broken And in 13 E. 3. Barr 253. That a Recovery was Erroneous and the Party being in Execution the Gaoler suffered him to escape and after the Recovery was reversed for Error yet the Action lay against the Gaoler Also by him the Jury have given an imperfect Verdict so as we cannot tell whether the Party were preferred or not for the Will was unpreferred generally and the Jury find that she viz. A. the daughter was not preferred by her father in his life time so as the Preferment by the taile is limited generally so as if any other prefer her she shall not have the Remainder And the Jury have found that she was not preferred by one certain viz. by her Father nor in a certain time in his life time which is as much as to say That she was preferred by the Uncle Aunt or Mother and if it were so then the Remainder is not good to her Also they find no preferment in the life of the father and it may be that the Father hath given her preferment by Will and that was no preferment in his life but is consummate only by his death and so she might be preferred by him by Implication by his Will So as upon the whole Matter I conceive That the Judgement ought to be reversed Note that this Case was afterwards adjudged at Hertford Terme and the Judgement was That the Issue of the Wife had Judgement for her Terme and that the Judgement upon which the Execution was was Erroneous and reversed by the Writ of Error and that the opinion of the Justices was That the Term was not to be restored but so much for which it was sold upon the Execution And the Daughter of Perepoynt brought an Action for it and had Judgement 27 Eliz. in the Common Pleas. 37. ONE had certain Minerall Lands Leased to him for years with liberty to dig and make his Profit of the Mine The Lessee afterwards digged for Mine and sold the Gravell which came of it And by the Opinion of the whole Court This sale was no Waste for no Sale is Waste if the first act be not Waste As the Sale of Trees by Tenant for life or Years is not waste if the Cutting and Felling down of them was not Waste before for the Vendition is but a secondary Act and but subsequent to the Act precedent which Act if it were lawfull the Sale also is lawfull for the Sale alone is not waste But they said That if the Lessee fell or cut Timber Trees and sell them it is waste Non quia vendebat sed quia scindebat For if he suffer them to be upon the ground without doing any thing with them yet it is waste but he may use them for the Reparation of his house and then it is no waste And yet when he fels them with an intent for Reparations and afterwards sells them it is waste Non propter Venditionem only but for the felling
same to Cropp the Lessor And the same Margery at one or two dayes before the payment of the said Rent had received the Rent in the like manner and had paid it to Cropp and he had accepted of it But now he refused to receive it of her but at the last day of the Month he went to the Land and there demanded the Rent and because it was not paid he entred Laiton argued for the Lessor That his entry was lawfull for he said That the Tender made by Margery Briggs to the Lessor was not sufficient 1. Because the Servant of the Lessee had Authority to deliver it to the Lessor therefore when he delivers it to another he hath not pursued his Authority 19. H. 8. 27. H. 8. Letter of Atturney made to diverse to give livery of Seisin If one make Livery alone it is void 34. H. 6. If a Capias be to many Coroners and one execute it it is void 18. E. 4. If one hath a Letter of Atturney to make Livery he cannot transfer this Authority to another to make Livery for him Also if in this Case a Stranger had tendered the Rent the Lessor was not bound to receive it as upon a Mortgage if a Stranger tender the Money the Mortgagee is not bound to accept of it 21. E. 4. In case of Corporall Service as Homage or Fealty the demand is to be made of the person but of Rent the demand is to be made upon the Land because the Land is the Debtor Clenche Justice conceived That if the Lessee himselfe had delivered the Rent to Margery Briggs that it had been good but it is a doubt if good made by the servant for he could not transfer his Authority to another Wray Chief Justice If it were upon a Bond the Obligee was not bound to accept of it before the day so if it were payable at Mich. only there the Lessor is not bound to accept of it before the day but in as much as 't is after the day the Month is a Liberty and Benefit for the Lessee and it was due at Mich. therefore I conceive That being tendred to him within any part of the Month that he is bound to accept of it And as to that That his servant cannot transfer his Authority over and therefore Margery Briggs is but a stranger in that act that is not so for now she is a servant in that to the Lessor himself and therefore there is privity enough also she hath received the Rent for him before What then said Laiton We can prove a speciall commandment for the time before that she received it At another day the Case was moved again and it was ruled against Cropp the Lessor because the rent was due at Mich. and the month after was given because of the penalty of Re-entry and the Tender and Refusall after the Rent was due and within the month saves the penalty and also Lawes ought to be expounded Secundùm â—quum bonum and good conscience and the Lessor was at no prejudice if he had accepted of it when his Daughter in Law tendred it unto him and therefore it was conceived That he had an intent to defraud the Lessee of his Lease and the Law doth not favour Frauds and therefore it was adjudged against Cropp the Lessor Hill 28 Eliz. In the King 's Bench. 44 PRIDEAUX's Case IN this Case it was moved Where a man marrieth a woman who is an Administratrix so as the Suit is to be in both their names Whether they shall be named in the Writ Administrators or not Wray Chief Justice They shall be for by the Entermarriage the Husband hath Authority to entermeddle with the Goods as well as the Wife but in the Declaration all the speciall matter ought to be set forth and so some said is the Book of Entries That both of them shall be named Administrators Hill 28. Eliz. in the King 's Bench. 45. AN Action upon the Case was brought for these words viz. Thou art a Cozener and a Bankrupt and hast an Occupation to deceive men by the words were spoken of a Gentleman who had One hundred Pound land per annum to live upon and therefore although he used to buy and sell Iron yet because he was not a Merchant nor did not live by his Trade the better Opinion of the Court was That the words were not actionable and so adjudged Hill 28. Eliz in the King 's Bench. 46 HARWOOD and HIGHAM's Case ONE had Houses and Lands which had been in the tenures of those which had the Houses and he devised his Houses with the Appurtenances and it was holden and so adjudged by the whole Court That the Lands did passe by the words With the Appurtenances For it was in a Will in which the intent of the Devisor shall be observed Trinit 28. Eliz. Rot. 1130. in the Common Pleas. 47 The QUEEN and SAVACRE's Case IN a Quare Impedit by the Queen against Savacre Clerk the Case was this The Queen presented to a Parsonage which was void by the taking of another Benefice by the said Savacre and the said Savacre for to enable him to have two Benefices pleaded That he was the Chaplain of Sir James a Crosts Controller of the Queens House who by the Statute of 21. H. 8. cap. 13. might have two Chaplains and might qualifie them to take two Benefices to which it was replied That the said Sir James a Crost had two other Chaplains which are qualified to have two Benefices and have also two Benefices by reason of that qualification and also are alive so as he is a third Chaplain who could not be qualified by that Statute To which it was answered That one of those two Chaplains is removed and discharged by the said Sir James a Crost to be his Domesticall Chaplain scil Capellanum familiarem as it was pleaded and so he hath now but two Chaplains of which the Defendant was one upon which there was demurrer joyned Three Points were in the Case 1. If the qualification Sub sigillo be sufficient within the Statute without the Signature or name of Sir James a Crost 2. When two Chaplains are qualified and one is removed out of service if he might qualifie another by the Statute the party being alive who was qualified 3. Whether he remain his Chaplain notwithstanding such removall during his life Upon which Points after perusall of the Statute it was agreed by the whole Court That the Queen ought to have Judgement and so they gave Judgement presently And the reasons of their Judgement were for the first Point Because that the Defendant Sâ—vâ—cre was not qualified Sub Signo Sigillo praedict Jacobi a Crost but only Sub Sigillo and the words of the Statute are viz. Under the Sign and Seal of the King or other their Lord or Master c. Which words Or other their Lord or Master shall be referred to Sign and Seal which is limited to the
which implyes an Affirmative which yet seems to be repugnant to a Negative as in 21. H. 6. 19. In a Writ of Entrie the Defendant pleaded the deed of the Demandant after the darrein Continuance The Demandant said It was not his deed after the darrein Continuance And that was holden a Negative pregnans wherefore he was compelled to plead and say he made it by dures before the darrein Continuance such a day absque hoc that he made it after the darrein continuance and then Issue was taken upon it The same Case is in 5. H 7. 7. But there it is said That in Debt upon a Bond to perform an Arbitrement Non fecerunt Arbitrementum per diem is no Negative pregnans The same Law that non deliberavit arbitrium in Script 38. H 6. in Formedon Ne dona pas in taile is a Negative pregnans Vide 39 H. 6. The Case of the Dean and Chapter The second Exception was That he hath pleaded neque such nor such nor such had disturbed him by any indirect means but onely by due course of Law And that cannot be tryed neither by Jury nor by the Judges Not by the Jury because it is not to be put to them whether they had disturbed him by indirect means or by due course of Law for they shall not take upon them the construction What is an indirect means and what is the due course of Law for it appertaineth to the Justices to adjudg that Not by the Judges because hee hath not put it certain that it was a due course of Law by which he disturbed him As 22. E. 4. 40. In Debt upon a Bond the Defendant saith that it is upon condition That if the Defendant or any for him came to Bristow such a day and there shewed to the Plaintiff or his Councell a sufficient Discharge of an Annuity of forty shillings per annum which the Plaintiff claims out of two Messuages of the Defendant in D that then c. The Defendant said that A. and B. by the assignement of the Defendant came the same day to Bristow and tendered to shew to N and W. of the Plaintiffs Councell a sufficient Discharge of the Annuity and that they did refuse to see it and demanded judgment of the Action The Plaintiff did demur upon the Plea And after a long argument it was adjudged by all the Justices to be no Plea c. because it lay in the judgment of the Court to judg of it and he did not shew in certain what discharge he tendered as a Release Unitie of possession c. If a man be bound to plead a sufficient plea before such a day in Debt upon such a Bond it is no plea to say That he hath pleaded a sufficient plea before the day but hee ought to shew what plea he hath pleaded For the Court cannot tell whether it be a sufficient plea or not if it do not appear what manner of plea it is 35 H. 6. 19. The Condition of a Bond was That where the Plaintiff was indebted to J. S. in one hundred pounds If the Defendant acquit and discharge the Plaintiffe that then c. The Defendant pleaded That hee had discharged him c. and the Plaintiffe did demurre upon the plea because hee did not shew how and it was holden no good plea. So 38. H. 8. Br. Condition 16. per curiam in the Kings Bench where a man pleaded That he had saved him harmlesse it was no Plea without shewing how because he pleaded in the Affirmative contrary if he had pleaded in the Negative as Non damnificatus est Suit and Clenche Justices said That if he had pleaded That he was not disturbed by any indirect means it had been good enough Gaudy If he had said That he was not disturbed contra formam conditionis praedict ' it had been good as upon a pleading of a Statute Ne entra pas contra formam Statuti Clench If I be bound to suffer I. S. to have my house but not I. D. I ought to answer That I have suffered the one and not the other to have it Suit Justice They are both severall issues and one shall not be repugnant to the other Mich. 28 29 Eliz. In the Kings Bench. 75 STURGIE'S Case A Case was moved upon the Statute of 5. Eliz. Cap. 14. The Case as I conceive was thus Grandfather Father and Daughter Land descended from the Grandfather to the Father who made a Lease for one hundred years the Father died and the Daughter forged a Will of the Grandfather by which he gave the Land to the Father for life the Remainder to the Daughter in Fee and the same was forged to have avoided an Execution of a Statute Staple the Lease being defeated and if it were within the Statute of 5. Eliz. was the question Solicitor That it was within the statute and within the first Branch viz. If any shall forge any deed c. to the intent that the Estate of Free-hold or Inheritance of any person c. in or to any Lands Tenements or Hereditaments Freehold or Copyhold or the right Title or Interest of any c. of in or to the same or any of them shall or may be molested c. Lessee for years hath a Title hath an Interest hath a right therefore within the words of the Statute and those words shall be referred to the words Lands Tenements c. But Cook said They shall be referred to the words precedent viz. Estate of Freehold or Inheritance and then a Lease for years is not within them Also by the Solicitor A Testament in writing is within the words of the Statute and therefore he recited a clause in the end of the Statute viz. and if any person plead publish or shew forth c. to the intent to have or claime thereby any Estate of Inheritance Freehold or Lease for years And also he said a Statute Staple is an estate for years although it be not a Lease for years because it is not certain Cook If she should be within both branches then she should be twice punished which Law will not suffer And the Statute is whereby any Estate for years shall be claimed and she would not claim but defeat an Estate for years and a Statute Staple is not a Lease for years and the Statute is not to be taken by Equity because it is a Penall Law Solicitor When the Statute is extended then it is an Estate for years although it be uncertain If a man forge a Lease for years it is directly within the Statute But if a man have a Lease and another is forged to defeat it it is a question whether it be within the Statute And all the doubt of this Case is upon the reference of these words Right Title Interest And it was adjourned Mich. 28 29. Eliz. in the Kings Bench. 76 THE Vicar of Pancras Case was argued again by Godfrey And he said That no Plea shall be
not shew what trees nor how many he might cut and that he hath cut down more then he ought and also he doth not shew when the cutting of them was Vide 6. E. 4. By prescription they may prescribe to hold a Court before the Steward but if there be no custome or Prescription to warrant it then as 4. H. 6. is it is coram Senescalio Sectatoribus Gaudy Every Court Baron is to be holden before the Suitors if there be no Prescription to the contrary But a Leet alwayes before the Steward The Action of Debt was upon the Presentment and the Error is brought upon the defects in the Presentment for if that be not good all is naught Notwithstanding it was said by one at the Bar That the forme of pleading in the book of Entries is That the Court was holden before the Steward if the Action be for debt or Trespass for Amercements or such personall things But if the Action be brought for reall things then it is before the Suitors But notwithstanding that the Judgement for the Causes aforesaid was reversed Mich. 28 29. Eliz. in the Kings Bench. 84 BARKER and FLETWEL'S Case BArker of Ipswich brought an Action of Covenant against the Assignee of his Lessee for years one Fletwell And set forth That whereas he had made a Lease for years reserving Rent with re-entry for non-payment of the Rent and that the Lessee did covenant to build a house upon the Land within the first ten years and that he assigned over his terme And he brought the Action against the Assignee who pleaded That the Lessor did enter and had the Possession for part of the ninth year and if thereby the Covenant were discharged was the demurrer in Law Godfrey Who argued for the Lessor said That by this entrie of the Lessor the Covenant was not suspended As 20. E. 4. 12 BY. Extinguishment 34. The Abbot of D. did grant to W. S. a Corrodie viz. so much bread c. for the term of his life faciend ' talia servitia prout J. N. alii usi sunt focere The Grantee leased back again the Corrodie unto the Abbot for 10. years rendring 3â— rent per annum and he brought Debt for the rent and the Abbot said That he did not the Services and the Grantee said That he was not bound to do them for that by the Lease the Corrodie was suspended And it was holden that it was not suspended Godfâ—â—y held the reason to be because that the service is a Collaterall thing And therefore he said He ought to do it notwithstanding that the Abbot had the Corrodie So in 8. H. 7. 7. Br. Conditions 134. Where Tenant in taile makes a Feoffment in Fee and takes back an estate in Fee and afterwards was bounden in a statute Merchant and then made a Feoffment in Fee upon Condition and died his Issue within age who enters for the Condition broken he was remitted notwithstanding that execution upon the statute was sued against the Father in his life So if Lease be made of a Manor except Herriots Fines and Amercements and that the Lessee shall collect them during the Term although that the Lessor entreth yet the Lessee ought to collect them during the term Also he pleades here That Barker did enter and that generall pleading is doubtfull and the Plea shall be taken strictly against him that pleadeth it and it may be that he entred by wrong and so it may be that he entred by right viz. for not payment of the Rent as in truth his entry was And if Barker did enter lawfully then it was no suspension or extinguishment of the Covenant As 19. R. 2. If Lessee for life commit waste and afterwards alieneth and the Lessor entreth for the Alienation yet after his entry he shall have an Action of Waste against the Lessee So 8. H. 6. 10. Waste 8. but with this difference If the Lessor enter wrongfully there although Waste be done before he shall not have Waste to punish it but otherwise if he enter for the Forfeiture done by the Tenant Also if the Covenant was suspended it was only for the time that the Lessor had the Possession and the Party hath not answered for the time before or after As 16. H. 7. If one be bound to find a Chaplain to say Divine Service within such a Chappel and the Chappel fall down it is a good excuse for the time but if it be built again he must find a Chaplain there Clarke contrary If Lessee for years covenanteth to repair the houses I grant that the same shall charge his Assignee But a Collateral thing as if the Lessee covenant to pay such a sum in gross or to enfeoffe him of the Manor of D the same shall not charge the Assignee no more shall a Covenant to build a new house But here it was said That he had time to build it both before and after the entry of the Lessor Barker To that he answered Not so for if he once disturbed the Covenant is destroyed Godfrey This Case was this Terme in the Common Pleas. Lessee for five years covenanted to build a Mill within the terme and because he had not done it the Lessor brought an Action of Covenant and the Defendant pleaded That within the last three years the Lessor forcibly held him out c. so as he could not build it and by the Opinion of all the Justices he ought to plead That the Lessor with force held him out otherwise it would be no Plea Cook As amicus curiae vouched 35. H. 6. Tit. Barr. If one be bounden to enfeoffe me of such land before Michaelmas there the Obliger in Debt brought upon the Bond pleaded That the Obligee before the day had entred with force into the land so as he could not enfeoffe him and there it was holden That he ought to prove that he was holden out by force Gaudy In the principall Case he ought to have shewed That he would not suffer him to build And the other Justices seemed to be of the same Opinion but yet they said That they would advise upon the Case Mich. 28 29. Eliz. in the Kings Bench. 85 OWen took Exception to a Declaration in an Ejectione firme because it was à Possessione sua ejecit where it ought to be according to the supposal of the Writ Quod à firma sua ejecit Also it was of three closes naming them with a Videlicet containing by estimation 30. Acres and that he said did contain no certainty where he ought to have alledged in Fact that they did contain so many Acres But it was holden by all the Justices That although he doth not put in the Declaration the certainty of the Acres if he give a certain name to them as Green-Close c. that it is good And as to the other Exception viz. Ejecit à Possessione inde that the word inde had relation to the Farme and shall be as much as
assigned over how not 34. H. 6. 30. Br. Maintenance 8. If J. S. be indebted to me and I be indebted to J. D. I may assign that Debt to J. D. with the assent of J. S. otherwise not as I conceive And there also another difference is taken That Damages which are to be recovered for Trespass Battery c. cannot be assigned over because they are as yet uncertain and perhaps the Assignee may be a man of great power who might procure a Jury to give him the greator Damages If a Bond be for performance of Covenants contained in an Indenture of Lease if he assign the Lease he may assign the Bond also because they are concomitants and he hath an Interest in the Lease and therefore he may sue the Bond But if the Covenants be first broken and afterwards he assign over the Lease if the Assgnee sue the Bond it is directly Maintenance but if he assign over the Lease and afterwards the Covenants are broken if he sue there it is no Maintenance But if he assign over the Bond and reserve the Lease in his own hands and then the Covenants are broken and the other sue the Bond for the performance of Covenants it is Maintenance And to all that Cook agreed The second Point An Elegit is awarded to the Sheriffe and he extends the Lands and doth not returne it Whether it be a lawfull Execution to the party or not is the question It is a good Execution unlesse the words of the Writ be conditionall for then there must be a returne of the Writ as a Fieri facias must be returned otherwise the Execution is not well done for it is conditionall viz. Ita quod habeas pecuniam in curia c. So is it of a Capias ad satisfaciendum Ita quod habeas corpus hîc But an Elegit is not conditionall Yet Kemp the Secondary said That in the end of the Elegit is Et de eo quod inde feceris nobis in dicta cancellaria tali die ubicunque tunc fuerit sub Sigillo distinctè apertè constare facias c. And so is the forme of the Writ in Fitz. Nat. Br. 266. Tanfield That is true but it doth not make the Writ conditionall but that is the Entry of the Court and the Sheriffe and not the Entry of the Party and the Sheriff 11. H. 4. 59. by Hankford who was a man of great knowledge and lived in learned times If the Recognisee of a Statute Merchant sueth Execution of it although the Writ be not returned and the Recognisee hath Execution and afterwards the Recognisor purchaseth other Lands and afterwards the Recognisee comes and saies That the Writ is not returned and sues forth another Writ the Recognisor shall have an Audita querela in that Case and shall surmise in Fact how that execution was done by the first Writ and yet there is no Record that execution was done by the first Writ So 19. E. 3. Briefe 370. A Writ issued to have Execution in forty Towns and an Extent was made and delivered of Lands in forty Towns and the Return made mention but of Execution in eight Towns and therefore the Party would have had a new Writ and the other Party was received to averre against the Record of the Returne that the Extent was in forty Towns 12. E. 3. Scire facias 117. Upon an Elegit the Sheriffe returned extendi feci and did not say deliberavi and in truth he did deliver the Lands in extent and therefore he could not have a new Execution 20. Eliz. betwixt Colsill and Hastings Colsill had an extent upon the Lands of Hastings and the Sheriffe being a friend to Hastings did not deliver full Possession to Colsill but gave him Possession in one part in the name of all the others Hastings continued Possession of all the rest and being upon Election of new Sheriffs Colsill was not over hasty to put him out for he was in hope to have a more favourable Sheriffe and the first Writ was not returned and there being a new Sheriff he sued forth a new Writ to have Execution The Defendant said That he had before sued forth the like Writ and had Execution And Colsill said That the first Writ was not returned and yet the Opinion of the whole Court was That it was a good Execution and so it was ruled but the Case was overthrown afterwards upon another Point So the Earle of Leicester had a Statute extended upon the Land of Mr. Tanfields Mother and it was not returned and yet when he would have sued forth another Execution he could not have it allowed him by the rule of the Court because the first Execution was a good Execution although it were not returned 15 Eliz. It was the Case of the Countesse of Derby who married the Earle of Kent in an Habere facias seisinam in a Writ of Dower Execution was served but not returned and therefore she prayed a new Writ but could not obtain it because the first was well executed although it was not returned So also was the Lord Morleyes Case in the Kings Bench in 28. Eliz. the Writ was not returned and yet the Execution was well done And therefore he concluded That the Execution was good although the Writ was not returned Cook contrary An Elegit ought to be returned and it is void if it be not returned As to the Case before cited of 19. E. 3. which began 9. E. 3. 450. And all the other Cases put out of the old Books They are upon extents of Statutes and there is a great difference betwixt an Elegit and Extents upon Statutes as 15. H. 7. 14. It was agreed That where a man recovers Debt or Damages or hath a Recognisance forfeit unto him his Executors shall not have Execution without a Scire facias first sued contrary upon a Statute Staple or Merchant and the like if the Defendant dieth the Plaintiffe shall not have an Execution by Fieri facias against his Executors but he must first have a Scire facias So if the Court change as if the Record cometh into the Kings Bench by Error and Judgement be affirmed the Plaintiffe who recovered shall not have a Fieri facias against the Defendant but must first have a Scire facias But otherwise it is of a Statute like the Case of 14. H. 7. 15. Br Execution 59. The Case of 12. E. 3. doth not speak of Elegit but of Statutes and Extents Also the Elegit and the Extent differ in the Entrie for the Elegit hath a speciall and precise Entry as Elegit sibi executionem c. And a man shall not have a Capias after an Elegit as 15. H. 7. is And being a speciall Entry of Record it ought to be returned for otherwise it doth not appear that Execution is done and so there shall be great mischiefe because infinite Executions may issue forth There is not any Book in the Law directly
the Person and to that purpose he cited 15 E. 4. 29. And he agreed the Case That if the Lord improve part of the Common that he shall not have common for the Residue because of the same Land newly improved for he cannot prescribe for that which is improved by 5. Ass 2. But here he doth prescribe not in the person or in or for a new thing but that the usage of the Towne hath been That the Inhabitants shall have common and that common is not appendent nor appertinent nor in grosse by Needham 37 H. 6. 34. b. Besides he said That if the house of a Freeholder who hath used to have such common fall down and he build it up again in another place of the Land that he shall have common as before And he put a difference betwixt the case of Estovers and this Case where a new Chimney is set up for that makes a new matter of charge and he much stood upon the manner of the Prescription Gaudy Serjeant contrary and he took Exception to the Prescription for he saith that it is antiqua villa and doth not say time out of mind and such is the Prescription in 15. E. 4. 29. a. and if it be not a Town time out of mind c. he cannot prescribe that he hath used time out of mind c. And he said That if it should be Law that every one who builds a new house should have common it should be prejudiciall to the Ancient Tenants or impaire the common And so one who hath but a little land might build 20 houses and so an infinite number and every house should have common which were not reason Anderson chief Justice He who builds a new house cannot prescribe in common for then a prescription might begin at this day which cannot be and he insisted upon the generall loss to the ancient Tenants Pâ—riam Justice If it should be Law that he should have common then the benefit of improvement which the Statute giveth to the Lord shall be taken away by this means by such new buildings which is not reason So as all the Justices were of opinion That he should not have common but Judgement was respited untill they had copies of the Record And Hillary Term following the Case was moved again and Anderson and Periam were of Opinion as they were before and for the same reasons But Windham Justice did incline to the contrary But they did all allow That he who new bulids an old Chimney shall have Estovers so a house common So if a house fall down and the Tenant build it up again in another place Periam If a man hath a Mill and a Watercourse time out of mind which he hath used to cleanse if the Mill fall down and he set up a new Mill he shall have the liberty to cleanse the Watercourse as he had before And that Terme Judgement was given for the Defendant to which Windham agreed Mich. 28 29. Eliz. in the Common Pleas. 111 IN a Replevin the parties were at Issue upon the Property and it was found for the Plaintiff and Damages intire were assessed and not for the taking by it self and for the value of the Cattell by themselves for the Judgement upon that is absolute and not conditionall and also if the Plaintiffe had the Cattell the Defendant might have given the same in Evidence to the Jury and then they would have assessed Damages accordingly viz. but for the taking Mich. 28 29. Eliz. in the Common Pleas. 112 A. bargaines with B. for twenty Loads of Wood and B. promises to deliver them at D. if he fail an Action upon the Case lieth But Periam Justice said That upon a simple contract for wood upon an implicative promise an Action upon the Case doth not lie Rodes Justice If by failer of performance the Plaintiff be damnified to such a sum this Action lieth Mich. 28 29 Eliz. in the Common Pleas. 113 A Lease of Lands is made excepting Timber-Woods and Under-woods And the question was Whether Trees Sparsim growing in Hedge rowes and Pastures did passe And difference was taken betwixt Timber-wood being one Wood and Timber Woods being severall Words although it bee Arbor dum crescit lignum dum crescere nescit yet in common speech that is said Timber which is fit to make Timber Then it was moved Who should have the Lops and Fruits of them and the Soile after the cutting of them downe and also the Soile after the Under Woods and as to that a difference was taken where the words are generally All woods and where they are his woods growing And in speaking of that case another case was moved viz. If a stranger cut down woods in a Forrest and there is no fraud or collusion betwixt him and the owner of the Land Whether the King should have them or the owner of the Soile And it was holden That the owner of the Soile should have them and yet the owner could not cut them downe but is to take them by the Livery of one appointed by the Statute Mich. 28 29. Eliz. in the Common Pleas. 114. A. makes a Lease of Lands to B. for ten years rendring rent And B. covenants to repaire c. Afterwards A. by his Will deviseth that B. shall have the Lands for thirty years after the ten years under the like Covenants as are comprised in the Lease Fenner moved it as a question If by the Devise those which were Covenants in the first Lease should be Conditions in the second for they cannot bee Covenants for want of a Deed And if they should not be Conditions the heir of the Lessor were without remedie if they were not performed A Devise for years paying ten pounds to a stranger is a Condition because the stranger hath no other remedy Gaudy Justice By the Devise to him to do such things as he was to do by the Lease makes it to be a Condition which was in a manner agreed by all the other Justices Yet Periam and Rodes Justices said That the first Lease was not defeisable for not performance of the Covenants nor was it the intent of the Devisor that the second should be so notwithstanding that his meaning was that he should do the same things Periam The Covenant is in the third person viz. Conventum Aggreatum est And see 28. H. 8. Dyer where the words Non licet to the Lessee to assigne make a Condition Mich. 28 29. Eliz. in the Common Pleas. 115. BARBER and TOPESFEILD'S Case A. being Tenant in taile of certain Lands exchanged the same with B. B. entred and being seised in Fee of other Lands devised severall parcels thereof to others and amongst the rest a particular estate unto his heir Proviso That he do not re-enter nor claim any of his other Lands in the destruction of his Will And if he do that then the estate in the Lands devised to him to cease A. dieth his issue entreth into the Lands in
taile and waives the Lands taken in Exchange and before any other entry the heir of B. enters upon the Land which was given in Exchange and the opinion of the whole Court was That it was no breach of the Condition because that was not the Land of the Devifor at the time of the devise therefore it was out of the Condition Mich. 28 29. Eliz. In the Common Pleas. 116. PLYMPTON'S Case AN Action of Debt was brought by one Plympton and his wife Executors of one Dorrington upon a Bond with Condition to perform Covenants of an Indenture of Lease whereof one Covenant was That he should pay forty shillings yearly at the Feast of the Annunciation or within fourteen days after And the breach assigned was for not payment at such a Feast in such a year The Defendant said That hee paid it at the Feast upon which they were at issue And upon evidence given to the Jury it appeared That the same was not paid at the Feast but in eight dayes after it was paid And the opinion of the Court was That by his pleading that hee had paid it at such a day certain and tendring that for a speciall issue That hee had made the day part of the issue and then the Defendant ought to have proved the payment upon the very day But if the Defendant had pleaded That hee paid it within the fourteen dayes viz. the eighth day c. that had not made the day parcell of the issue but then hee might have given evidence that he paid it at another day within the fourteene dayes Then for the Defendant it was moved That the Plaintiffe had not well assigned the breach in saying that he had not paid it at the Feast without saying Nor within the fourteen dayes But the Court said That the Jury was sworn at the Barre and bid the Councell proceed and give in their evidence for the time to take exception was past Mich. 28 29. Eliz. in the Common Pleas. 117. IT was the opinion of Anderson Chiefe Justice and so entred by the Court That if a Copie-holder doth surrender to him who hath a Lease for years of the Mannor to the use of the same Lessee That the Copie-hold estate is extinct For the estate in the Copie-hold is not of right but an estate at will although that custome and prescription had fortified it And Wray said That it had been resolved by good opinion That if a Copie-holder accept a Lease for years of the Mannor that the Copie-hold estate is extinct for ever Mich. 28 29. Eliz. in the Common Pleas. 118. Anderson Chiefe Justice and Periam Justice being absent in a Commission upon the Queen of Scots Shuttleworth moved this case to the Court. If the Queen give Lands in taile to hold in Capite And afterwards granteth the Reversion how the Donee shall hold Windham Justice and Fenner Serjant The tenure in this case is not incident to the Reversion and the Donee shall hold of the Queen as in grosse and so two Tenures in Capite for one and the same Land And thereupon Windham Justice cited 30. H. 8. Dyer 45 46. That the Queen by no way can sever the tenure in chiefe from the Crown And therefore if the Queen do release to her Tenant in Capite to hold by a penny and not in Capite it is a void Release for the same is meerly incident to the Person and Crown of the Queen But Rodes Justice held the contrary viz. That the Tenure in Capite doth not remain But it was said by Windham That if the Queen had reserved a Rent upon the gift in tail the Grantee of the Reversion should have it Also he said That the Queen might have made the Tenure in such manner viz. to hold of the Mannor or of the Honor of D. Shuttleworth If Lands holden of the Mannor of D. come to the King may he give them to be holden of the Mannor of S that should be hard Windham I did not say That Lands holden of one Mannor may be given to be holden of another Mannor perhaps that may not bee but Lands which is parcell of any Mannor may be given Vt supra Mich. 28 29 Eliz. in the Common Pleas. 119 SErjeant Fenner moved Case If Lands be given to the Husband and Wife and to the heirs of their two bodies and the Husband dieth leaving Issue by his Wife and the Wife makes a Lease of the lands according to the Statute of 32. H. 8. If the Lease be good by the Statute Windham and Rodes Justices conceived that it is a good Lease Fenner The Statute saith that such Lease shall be good against the Lessor and his Heirs and the Issue doth not claim as Heir to the Wife onely but it ought to be Heir to them both and he cited the case That the Statute of R. 3. makes Feoffments good against no heirs but those which claim onely as Heirs to the same Feoffors c. So here Rodes Justice There the word only is a word efficacy And Windham agreed cleerly That the Lease should binde the issue by the said Statute of 32. H. 8. Mich. 28 29. Eliz. In the Common Pleas. 120 WAlmesley Serjeant moved this Case If a man deviseth Lands in taile with divers Remainders over upon condition that if any of them alien or c. that then he who is next heir to him to whom the land ought to come after his decease if the said alienation had not been made might enter and enjoy the land as if he had been dead But Ady of the Temple said That the words of the Devise are viz. That if any of them alien or c. that then his estate to cease and hee in the next Remainder to enter and retain the land untill the aliener were dead Rodes Justice The Devise is good and an estate may cease in such manner so as it shall not be determined for ever but that his Heir after him shall have it And he put the case of Scholastica Plow Com. 408. where Weston fo 4. 14. was in some doubt that if the Tenant in talle had had Issue if the Issue should be excluded from the land or whether hee should have the land by the intent of the Devisor And therefore if it were necessary to shew that the Tenant in taile had not Tssue But Dyer said that the words of the Will were that such person and his Heirs who alien or c. should be excluded presently so as the estate by expresse words is to be determined for ever But it is otherwise in this Case Windham doubted of the Devise Fenner cited the Case 22. E. 3. 19. Where a Rent was granted and that it should ceâ—se during the Nonage of the Heir of the Grantee and it was good Windham When a thing is newly created he who creates it may limit it in such manner as he pleaseth Fenner 30. E. 3. 7. Det. 10. A Feoffment was made rendring Rent upon
Condition that if the Rent be behinde the Feoffor might enter and retain quousque there the estate shall be determined pro tempore and afterwards revived again Windham There the Feoffor shall have the land as a distress and the Free-hold is not out of the Feoffee Fenner The Book proves the contrary for the Feoffor had an Action of Debt for the Rent Mich. 28 29. Eliz. in the Common Pleas. 121 IN a Formedon the Tenant pleaded a Fine with proclamations The Plaintiff replyed No such Record It was moved that the Record of the Fine which remained with the Chyrographer did warrant the Plea and the Record which did remain with the Custos Brevium did not warrant the Plea and both the Records were shewed in Court and to which the Court should hold was the question Shuttleworth To that which was shewed by the Custos Brevium and he cited the Case of Fish and Brocket where the Proclamations were reversed because that it appeared by the Record which was shewed by the Custos Brevium that the third proclamation was alledged to be made the seventh day of June which seventh day of June was the Sunday and yet hee said It appeared by the Record certified by the Chyrographer that it was well done and yet the Judgment reversed Rodes Justice There is no such matter in the same case And 26. El. by all the Justices and Barons of the Exchequer in such case the Record which remains with the Custos Brevium shall be amended and made according as it is in the Record of the Office of Chyrographer Windham agreed And afterwards the said President was shewed in which all the matter and order of proceedings was shewed and contained and all the names of the Justices who made the Order And by the command of the Justices it was appointed that the said President should be written out and should remain in perpetuam rei memoriam And the reason of the said Order is there given because the Note which remains with the Chyrographer is principale Recordum Mich. 28 29. Eliz. in the Common Pleas. 122. AN Infant was made Executor and Administration was committed unto another durante minore aetate of the Executor and that Administrator brought an Action of Debt for money due to the Testator and recovered and had the Defendant in Execution and now the Executour is come of full age Fenner moved that the Defendant might be discharged out of Execution because the Authority of the Administrator is now determined and he cannot acknowledge satisfaction nor make Acquittances c. Windham Justice Although the Authority of the Plaintiffe bee determined yet the Recovery and the Judgement do remaine in force But perhaps you may have an Audita querela But I conceive That such an Administrator cannot have an Action for he is rather as a Bayliff to the Infant Executor then an Administrator Rodes agreed with him and he said I have seen such a Case before this time viz. Where one was bound to such a one to pay a certaine sum of money to him his Heirs Executors or Assignes And the Obligee made an Infant his Executor and administration was committed during his minority and the Obligor paid the money to that Administrator And it was a doubt whether the same was sufficient and should excuse him or not And whether he ought not to have tendred the money to them both Fenner That is a stronger Case then our Case One who is Executor of his own wrong may pay Legacies and receive Debts but he cannot bring an Action Windham Doth it appear by the Record when the Infant was made Executor and that Administration was committed as before Fenner No truely Windham Then you may have an Audita querela upon it Fenner said So we will Note Hil. 33. Eliz. in the Exchequer Miller and Gores Case An Infant pleaded in a Scire facias upon an Assignement of Bonds to the Queen That Saint-Johns and Eley were Administrators during his minority And it was holden by the Court to be no plea. But he ruled to answer as Executor Mich. 28 29. Eliz. in the Common Pleas. 123 SUggestion was made that a Coroner had not sufficient Lands within the Hundred for which a Writ issued forth to choose another and one was chosen It was moved by Serjeant Snag If theâ—eby the first Coroner did cease to be Coroner presently untill he be discharged by Writ Rodes and Windham Justices He ceases presently for otherwise there should be two Officers of one Coronership which cannot be Also the Writ is Quod loco I. S. eligi facias c. unum Coronatorem and he cannot be in place of the first if the first do not cease to be Coroner So if any be made Commissioners and afterwards others are made Commissioners in the same cause the first Commission is determined Snagg said That in the Chancery they are of the same Opinion but Fitz. Nat. Brevium 163. N. is That hee ought to be discharged by Writ Mich. 28 29 Eliz in the Common Pleas. 124 IN an Action of Debt brought against Lessee for years for rent he pleaded That the Plaintiff had granted to him the reversion in Fee which was found against him Walmesley Serjeant moved Whether by that Plea he had forfeited his terme or not Rodes and Windham Justices He shall not forfeit his Term and Rodes cited 33. E. 3. Judgement 255. Where in a Writ of Waste the Tenant claimed Fee and it was found against him that he had but an Estate for life and yet it was no Forfeiture Fenner and Windham It is a strong Case for there the Land it selfe is in demand but not so in our Case Rodes The Tenant shall not forfeit his Estate in any Action by claiming of the Fee-Simple but in a Quid juris clamat Walmesley and Fennèr Where he claimes in Fee generally and it is found against him there perhaps hee shall forfeit his Estate but where he shewes a speciall conveyance which rests doubtfull in Law it is no reason that his Estate thereby should bee forfeited although it be found against him Rodes 6. R. 2. Quid juris clamat 20. The Tenant claimed by speciall conveyance and yet it was a forfeiture But in the principall Case at Bar he and Windham did agree cleerly That it was no forfeiture Mich. 28 29 Eliz. In the Common Pleas. 125 AN Action upon the Case was brought because that the Defendant had spoken these words viz. That the Plaintiffe hath said many a Masse to J. S. c. Anderson Chief Justice Primâ facie did seem to incline That no Action would lie for the words although that a Penalty is given by the Statute against such Masse-Mongers For he said That no Action lieth for saying That one hath transgressed against a Penall Law Periam Justice contrary Anderson If I say to one That he is a disobedient Subject no Action lieth for the words Windham Justice That is by reason of the generality Puckering
the Land unto another Shuttleworth moved it to the Court Whether the Patentee ought to shew the Letters Patents and he conceived He need not because he hath not any interest in them but the same do belong only to the Earle As if a Rent be granted to one in Fee and he taketh a wife and dieth and the Wife bringeth a Writ of Dower she is not bound to shew the first Deed by which the Rent was granted to her Husband because the Deed doth not belong unto her So hee who sues for a Legacie is not tied to shew the Will because the same belongs to the Executor and not him Periam Justice The Cases are not alike for they are Strangers and not Privies but the Lessee in the principall Case deriveth his interest from the Letters Patents and therefore he ought to shew them Rodes Justice remembred Throgmorton's Case Com. 148. a. where a Lease was made by an Abbot to J. S. and afterwards the same Abbot made a Lease unto another to begin after the determination of the first Lease made to J. S. and exception was taken That he ought to have shewed the Deed of the first Lease and the Exception was disallowed by the Court Periam That case is not like this case and he said That as he conceived the Lessee in this case ought to shew forth the letters Patents and if any Books were against his Opinion it was marvellous Mich. 28 29 Eliz. in the Common Pleas. 134 ONE intruded after the death of Tenant for life and died seised and the land descended to his Heire and a Writ of Intrusion was brought in the Per against the Heir and Gawdy Serjeant prayed a Writ of Estrepment against the Tenant And first the Court was in doubt what to do but afterwards when they had considered of the Statute of Gloucester Cap. 1. in the end of it Anderson said If the Writ be in the Per take the Writ of Estrepment but if the Writ be not in the Per we doubt whether a Writ of Estrepment will lie or not Mich. 28 29 Eliz. In the Common Pleas. 135 WOOD against ASH and FOSTER CErtain Lands with a Stock of Sheep was leased by Indenture and the Lessee did covenant by the same Indenture to restore unto the Lessor at the end of the Terme so many Sheep in number as he took in Lease and that they should be betwixt the age of two and four years Afterwards the Lessee granted the same Stock unto a Stranger viz. to Elizabeth Winsor who was the wife of Ashe whereas in truth all the ancient Stock was spent And it was holden by all the Justices upon an Evidence given unto a Jury at the Bar That when such a Stock of Sheep is leased for years the principall Property doth remain in the Lessor as long as those Sheep which were in esse at the time of the Lease should live but if any of them do die and other come in their roomes then the property of those new Sheep doth belong to the Lessee and therefore they held that the second Lessee should have so many of the Sheep as were left and did remaine at the end of the Lease and no other And yet it was objected by Walmesley That the Stock was entire and that as soon as any other came in the room of the ancient Sheep which were dead that they were accounted part of the same stock and although they be all dead and so changed successively two or three times yet he said it shall be said the same stock And he resembled the same to the case of a Corporation which although all the Corporation die and other new men come in their places it shall be said the same Corporation But notwithstanding his Opinion all the Justices were of opinion as before Walmesley said That agreeing with his opinion was the opinion of all the civill Lawyers but the Court was angry and rebuked him that he did in such manner crosse their opinions and that he cited the opinion of Civilians in our Law and they resolved the contrary and they said there is a difference betwixt the Lease of other Goods and a lease of live Cattel for in the first Case if any thing be added for mending repairing or otherwise by the Lessee at the end the Lessor shall have the additions for of them he hath alwayes the property and they are annexed to the principall but Lambs Calves c. are severed from the principall and are the Profits arising of the Principall which the Lessee ought to have else he should pay his Rent for nothing And as to the issue upon the Cepit by Foster it was shewed That he did but stay the Sheep in his Manor where he had Fellons Goods Waifes and Strayes and that the Sheep were stayed upon a Huy and Cry and that he had taken Bond of one to whom he had delivered the Sheep to render them to him who had the right of them And that stay was holden by the Court to be out of the point of the Issue For that he who doth stay doth not take Mich. 28 29. Eliz. in the Common Pleas. 136. The Heirs of Sir ROGER LEWKNOR and FORD's Case Intratur Pasch 28. El. Rot. 826. SIR Roger Lewknor seised of Wallingford Park made a lease thereof unto Ford for years and died the Lessee granted over his term to another excepting the Wood the term expired and now an action of Waste was brought against the second lessee by the two Coparceners and the Heir of the third Coparcener her Husband being tenant by the courtesie And Shuttleworth and Snag Serjeants did argue that the action would not lie in the form as it was brought And the first Exception which was taken by them was because the action was generall viz. Quod fecit Vastum in terris quas Sir Roger Lewknor pater praedict ' the plaintiffs cujus haeredes ipsae sunt praefat ' defend ' demisit c. and the Count was that the Reversion was entailed by Parliament unto the Heirs of the body of Sir Roger Lewknor and so they conceived that the Writ ought to have been speciall viz. cujus haeredes de corpore ipsae sunt For they said that although there is not any such form in the Register yet in novo casu novum remedium est apponendum And therefore they compared this case to the case in Fitz. Nat. Brevium 57. c. viz. If land be given to Husband and Wife and to the Heirs of the body of the Wife and the Wife hath issue and dieth and the Husband committeth Waste the Writ in that case and the like shall be speciall and shall make speciall recitall of the estate And so is the case 26. H. 8. 6. where Cestuy que use makes a lease and the lessee commits Waste the action was brought by the Feoffees containing the speciall matter and it was good although there were not any such Writ in the Register cujus
haeredes de corpore and we are not to devise a new form in such case but it is sufficient to shew the speciall matter to the Court. Also the words of the Writ are true for they are Heirs to Sir Roger Lewknor and the count is sufficient pursuant and agreeing to their Writ for they are Heirs although they are not speciall Heirs of the body and so the Court was of opinion that the Writ was good notwithstanding that Exception And Anderson and Periam Justices said That the case is not to be compared to the case in F. Nat. Br. 57. c. for there he cannot shew by whose Demise the Tenant holdeth if he doth not shew the speciall conveyance viz. that the land was given to the Husband and Wife and the Heirs of the body of the Wife Nor is it like unto the case of 26. H. â— 6. for the same cause for alwayes the demise of the Tenant ought to be especially shewed and certainly which it cannot be in these two cases but by the disclosing of the Title also to the Reversion Another Exception was taken because that the Writ doth suppose quod tenuerunt which as they conceived is to be meant that tenuerunt joyntly whereas in truth they were Tenants in common Walmesley contrary because there is not any other form of Writ for there is not any Writ which doth contain two Tenuerunts And the words of the Writ are true quod tenuerunt although tenuerunt in Common But although they were not true yet because there is no other form of Writ it is good enough As Littleton If a lease be made for half a year and the Lessee doth waste yet the Writ shall suppose quod tenet ad terminum annorum and the count shall be speciall 40. Ed. 3. 41. E. 3. 18. If the Lessee doth commit waste and granteth over his term the Writ shall be brought against the Grantor and shall suppose quod tenet and yet in truth he doth not hold the Land 44. Ed. 3. and Fitz. If one make divers leases of divers lands and the Lessee doth waste in them all the Lessor shall have one Writ of waste supposing quod tenet and the Writ shall not contain two Tenets And such was also the opinion of the Court The third Exception was because that the Writ was brought by the two coparceners and the Heir of the third coparcener without naming of the Tenant by the Courtesie And thereupon Snagg cited the Case of 4. Ed. 3. That where a Lease is made for life the Remainder for life and the tenant for life doth waste he in the Reversion cannot have an Action of waste during the life of him in the Remainder So in this case the Heir of the third coparcener cannot have waste because the mean estate for life is in the Tenant by the courtesie And to prove that the Tenant by the courtesie ought to joyn he cited 3. E. 3. which he had seen in the Book it self at large where the Reversion of a tenant in Dower was granted to the Husband and to the Heirs of the Husband and the tenant in Dower did waste and they did joyn in an Action of waste and not good And so is 17. E. 3. 37. F. N. B. 59. f. and 22. H. 6. 25. a. Walmesley contrary for here in our case there is nothing to be recovered by the tenant by the courtesie for he cannot recover damages because the disinheresin is not to him and the term is expired and therefore no place wasted is to be recovered and therefore it is not like unto the Books which have been cited for in all those the tenant was in possession and the place wasted was to be recovered which ought to go to both according to their estates in reversion But it is not so here for in as much as the term is expired the land is in the tenant by the courtesie and so he hath no cause to complain And such also was the opinion of the whole Court viz. that because the term was ended that the Writ was good notwithstanding the said Exception Then concerning the principall matter in Law which was Whether the Writ were well brought against the second Lessee or whether it ought to have been brought against the first Lessee It was argued by Shuttleworth that it ought to have been brought against the first Lessee for when he granted over his term excepting the trees the Exception was good Ergo c. For when the Land upon which the trees are growing is leased out to another the trees passe with the Lease as well as the Land and the property of them is in the Lessee during the term and therefore when he grants his term hee may well except the trees as well as the first Lessor might have done And that is proved by the Statute of Marlebridge Cap. 23. for before that Statute the Lessee was not punishable for cutting downe the trees and that Statute doth not alter the properties of the trees but onely that the Lessee shall render damages if he cut them down c. Also the words of the Writ of Wast proveth the same which are viz. in terris domibus c. sibi dimissis Also the Lessee might have cut them down for reparations c. and for fire-wood if there were not sufficient underwoods which he could not have done if the trees had been excepted And in 23. H 8. in Brooke It is holden that the excepting of the trees is the excepting of the Soile And so is 46. E. 3. 22. Where one made a Lease excepting the woods and afterwards the Lessee did cut them down and the Lessor brought an Action of Trespasse quare vi armis clausum fregit c. and it was good notwithstanding that Exception was taken to it And it is holden in 12. E. 4. 8. by Fairfax and Littieton That if the Lessee cut the trees that the Lessor cannot carry them away but he is put to his Action of Waste Fenner and Walmesley Serjeants contrary and they conceived that the Lessee hath but a speciall property in the trees viz. for fire-boot plough-boot house-boot c. And if he passe over the Lands unto another that he cannot reserve unto himselfe that speciall property in the trees no more then he who hath common appendant can grant the principall excepting and reserving the Common or grant the Land excepting the foldage The grand property of the trees doth remain in the Lessor and it is proved by 10. H. 7. 30. and 27. H. 8 13. c. If Tenant for life and he in the reversion joyne in a Lease and the Lessee doth wast they shall joyne in an Action of Wast and Tenant for life shall recover the Free-hold and the first Lessor the damages which proves that the property of the trees is in him As to that that he was dispunishable at the common law that was the folly of the Lessor and although it was so at the
common law yet it is otherwise at this day For when the Statute sayes That the Lessor shall recover damages for the Wast that proves sufficiently that the property of the trees is in him as the Statute of Merton Cap. 4. enacts That if the Lessor do approve part of the Wast leaving sufficient for the Commoners and they notwithstanding that bring an Assize they shall be barred in that Case and the Lord may have an Action of Trespass against them if they break the Hedges by force of that Statute as it hath been adjudged for the intent of the Statute was to settle the Inheritance of the Land approved without interruption of the Commoners And so in this case But Note that by the Statute of Marlebridge the Lessor shall recover damages for the houses c. which are wasted c. and yet a man cannot inferre thereupon that therefore the Lessee hath no Interest or property in them and such interest hath he in the trees notwithstanding the words of the Statute which is contrary to this meaning as it seems And therefore Quaere If there be any difference betwixt them and what shall be meant by this word Property But the damages are given by the Statute in respect of the property which the Lessor is to have in reversion after the Lease determined Anderson Chiefe Justice The Lessor hath no greater property in the trees then the Commoner hath in the soile Walmesley 2. H. 7. 14. and 10. H. 7. 2. The Lessor may give leave to the Lessee to cut the trees and the same shall be a good plea in an Action of Wast and the reason of both the books is because the property of them is in the Lessor and to this purpose the difference is taken in 2. H. 7. betwixt Gravell and trees 42. H. 3. If a Prior licence the Lessee to cut trees the same shall discharge him in Wast brought by the Successour But if the Lessee cutteth down the trees and then the Prior doth release unto him the same shall not barre the Successour and so is 21. H. 6. Also he cited Culpepers case 2 Eliz. and 44. E. 3. Statham and 40. Ass 22. to prove that the Lessor shall have the Wind-falls If a stranger cutteth down trees and the Lessee bringeth an Action of Trespasse he shall recover but according to his losse viz. for lopping and topping As to that which was said That if the Lessee cut down trees that the Lessor cannot take them away that is true for that there is a contract of the Law that if the Lessee doth cut them down that he shall have the trees and the Lessor shall have treble damages for them Also he said That the trees are no part of the thing demised but are as servants and shall be for reparations As if one hath a Piscarie in the land of another man the land adjoyning is as it were a servant viz. to drie the Nets So if one have conduit-pipes lying in the land of ather he may dig the land for to mend the pipes and yet he hath no Interest nor Free-hold To that which was said That by the excepting of the trees the land upon which they stood is excepted It is true as a servant to the trees for their nourishment but not otherwise for if the Lessor selleth the trees he afterwards shall not meddle with the land but it shall be wholly in the Lessee quia sublata causa tollitur effâ—ctus And if the Lessee tieth a horse upon the land where the trees stood the Lessor may distraine the same for his rent and avow as upon land within his distress and Fee and holden of him And he said that the lessor may grant the trees but so cannot the lessee and therefore he said That the property is in the lessor and not in the lessee Also if the lessor granteth them they passe without Atturnment But contrary if the lessor had but a Reversion in them Also if the lessor cutteth them down his Rent shall not be apportioned and therefore they are no part of the thing demised For 16. H. 7. and temps E. 1. Fitz. Waste in two or three places it is holden That if the Waste be done Sparsim in a Close or Grove the lessor shall recover the whole Then admit that the trees excepted are cut down sparsim if the Exception shall be good how shall the thing wasted be recovered and against whom quod nota Anderson Chief Justice did conceive that the Exception was void and that the Action was well brought and he said It was a Knavish and Foolish demise and if it should be good many mischiefs would follow which he would not remember Windham Justice was of the same opinion and he said The lessor might have excepted them and so take from the lessee his fire wood and Plough bote c. But the lessee could not grant his estate excepting the trees because he had but a speciall interest in them viz. for his fire-bote c. which shall go with the land Periam Justice agreed That as to such a speciall property none can have it but such a one who hath the land and therefore the exception of the Wood by the lessee was void But as to the other things perhaps if they were Apple trees or other Fruit-Trees the exception had been good Also although the trees are not let directly yet they are after a sort by a mean as annexed to the land and if the Action be brought against him who made the exception he cannot plead that they were let unto him and therefore he doubted of the exception Rodes Justice also said That he doubted of the Exception And he said That the Book of 44 E. 3. is That the lessee should have the Wind-falls and he did not much regard the Opinion of Statham But Anderson Chief Justice was of opinion that the lessor should have the Wind-falls Note the Case was not adjudged at this time Hill 29. Eliz. in the King's Bench 137 EXceptions were taken by Fuller to an Indictment upon the Statute of 1. Eliz. cap. 2. for the omitting of the Crossing of a Child in Baptising of him The Case was That a Minister out of his Cure at another Church viz. at Chelmesford in Essex did Baptize a Child without the Sign of the Crosse for which he was indicted The first Exception was That the Statute speaks of Ministers which do not use the administring of the Sacrament in such Cathedrall Churches or Parish Churches as he should use to administer the same that this was not the Parish Church in which he should use the same Suit Justice was of opinion That it was good notwithstanding that for otherwise the Statute might be greatly defrauded The words of the Statute are farther Or shall wilfully or obstinately standing in the same use any other Rule Ceremony Order Forme c. 2. He took another Exception upon those words For the omitting of the Crossing only is put and
Gardian pleaded that the plaintiff was within age And the plaintiff did maintain his Declaration that by the Custome of such a place An Insant of 18. yeares might bring an Action of Account against his Gardian in Socage and it was there holden to be no Departure I conceive that an Infant cannot have an Account against his Gardian before his full age But I conceive that they held that it was by Statute That an Infant should not have an Account against Gardian in Socage until he was of the age of 21. yeares Wray Chief Justice was of opinion that it was no Departure For he said it should be frivolous to shew the whole in his Declaration viz. That he was an Infant And that by Custome he might make a Covenant which should beinde him But quaere of his opinion for that many doubt of it Vide the Case 118. R. 2. Hill 29 Eliz. in the King's Bench 144 CONEY's Case AN Action of Trespass was brought against John Coney for digging of the plaintiffs Close and killing of 18. Coneys there The Defendant Pleaded as to all the Trespas but killing of two Coneys Not Guilty And as to them he said that the place where c. the Trespass is supposed is a Heath in which he hath common of pasture and that he found them eating of the Grass and that he killed them and carried them away as it was Lawfull for him to do c. Cook The Point is Whether a commoner having common of pasture may kill the Coneys which are upon the ground and he said hemight not And first he said it is to be considered what interest he who hath the Freehold may have in such things as are ferae Naturae Secondly What authority a commoner hath in the ground in which he hath common To the first he said that although such Beasts are ferae Naturae yet they are reduced to such propertie when they are in my ground by reason of my possession which I then have in them that I may have an action of Trespass against him who takes them as 42. E. 3. 24. If one have Deer in his Park another taketh them away he may have an action of Trespas forthe taking 12. H. 8. If a Forrester follow a Buck which is chased out of the Park or Forrest although that he who hunteth him killeth him in his own ground yet the Forrester or Keeper may enter into his ground retake the Deer for the propertie and possession which he hath in it by the pursuit 7. H. 6. 38. It is holden that if a wilde Beast go out of the Park then the owner of the ground hath lost the propertie in it Brook thereupon collects that he had a propertie in it whilest it was in his Park 18. E. 4. 14. It is doubted whether a man can have propertie in things which are ferae Naturae But 10. H. 7. 6. It is holden that an Account lieth for things ferae Naturae Vide 14. H. 8. 1. The Bishop of Londons Case and 22. H. 6. 59. as long as they are in his ground they are in his possession and he shall have an Action of Trespass for the taking of them and the Writ shall be damas suas by Newton And in the Register 102. It is Quare ducent's cuniculos suos precij c. cepit But it is said that he hath common there What then Yet he cannot meddle with the Wood Sand Grass but by taking of the same with the mouthes of his Cattel If he who hath the Freehold bring an action against the Commoner for entring into his Land If he plead Not guilty he cannot give in Evidence that he hath Common there 22 Ass A Commoner cannot put in Cattel to Agist So is 12. H. 8. And of late it was holden in this Court That where the Commoners did prescribe that the Lord had used to put but so many of his Cattel upon the Lands That it was a void prescription Godfrey Contrary That it is Lawfull for the Commoner to kill them And he agreed the Cases which were put by Cook And he said that the owner of the ground had not the very propertie but a kind of propertie in them 3. H. 6. and F. N. B. If the Writ of Trespass be Quare cuniculos suos c. The Writ shall abate And yet he hath a propertie in them or rather a possession of them I grant that against a stranger he might have this Action of Trespas but not against the Commoner for he hath a wrong done unto him by their being upon the Land and therefore he may kill them although he may not meddle with the Land because he hath not an Interest in it and yet he may meddle with the profit of it as 15. H. 7. A Commoner may distrain damage feasant 43. E. 3. Coneys dig the Ground and eate the Grass of the Commoner c. I grant that it is not lawfull for the Tenant for life for to kill the Coneys of him who hath a free Warren in the ground For if a man bring an Action of Trespas Quare Warranem suum intravit cuniculos suos cepit c. It is no Plea that it is his Free-hold L. 5. E. 4. In Trespass Quare clausum fregit cuniculos cepit The Defendant said that the plaintiff made a lease at will unto such a man of the Land and he as his Servant did kill the Coneys and it was holden no Plea and yet it is there said that by the grant of the Land the Coneys doth not pass but the reason as I conceive is because it tends to his damage and therefore that he may kill them And so in this Case 2. H. 7. and 4. E. 4. If I have Common of pasture in Land and the Tenant plougheth the Land I shall have my Action upon the Case in the Nature of a quod permittat 9. E. 4. If one hath Land adjoyning to my Land and levy a Nusans I may enter upon his Land and abate the Nusans So if a man take my goods and carrie them into his own Land I may enter thereupon and retake my goods So if a Tenant of the Freehold plough the Land and sow the same with Corn the Commoner may put in his Cattel and there whit eate the Corn growing upon the Land and may justifie the same because the wrong first begins by the Tenant So if a man do falsly imprison me and put me in his house I may break his house to get forth 21. H. 6. in Trespass All the Inhabitants of such a Town do prescribe to have Common in such a field every year after harvest And one froward fellow amongst the rest will not gather in his Corn within convenient time If the Townsmen put in their Cattel and they eate the Corn he hath no remedie for it And he asked what remedie the Commoner should have for the eating of the Grass which his Cattel is to have if he
yet in the interim during the life of Brenne and his wife it is one entire Manor For if Blackborow had levied a Fine thereof before entry his Interest in the Land had not passed And if a Fine be levied of the Manor and the Conusee render back part to one for life and another part to another for life the remainder of the whole to a third until the Two enter it is one entire Manor in the hands of the Conusee If I devise that my Executors shall sell such Lands which are parcell of a Manor and dye untill they sell it remains parcell of the Manor So if the heir selleth the Manor that Land shall passe for it is but executory and remains parcell untill it be executed Wherefore in the principall Case here the Copy-hold is good The reason of the Case 33. H. 8. Dyer 48. is because before the grant the advowson was not appendant to that acre onely but to the whole Manor and to that acre as parcell of it Also he said that the Copy-hold shall be good against the Lessee being granted before execution of his term when as the Manor was entire For he who hath a Manor but for one year may grant Copies and the grant shall be good to bind him in the Reversion And if one recovereth an acre parcell of a Manor before execution it is parcell of the Manor and by grant of the Manor shall passe Periam Justice But yet now being executed by the death of the Lessor and his wife it is no part of the Manor if they be severall Leases Walmesley But the Defendant is in by Custome by one who is Dominus pro tempore Anderson Chief Justice The Case of 48. E. 3. is like our Case And I conceive clearly here is no severance but if there had been any severance it had been otherwise but I doubt of the other point Periam Justice In 13. H. 4. the difference is taken betwixt a grant of a Manor una cum advocatione and a grant of a Manor et ulterius a grant of the Advowson In 14. Eliz. Dyer 311. in the Case of the Lord Cromwell and Andrews it is moved If a man bargain and sell give and grant a Manor and Advowson to one and afterwards levieth a Fine or inrolleth the Deed Dyer held that the Advowson shall passe by the Bargain and Sale as in gross before that the Deed be enrolled But I conceive that it cannot pass if the Deed be not enrolled and then it shall pass as appendant by reason of the intent of the parties and so in this Case And for the last matter I conceive very strongly that when the Lease which is executory takes effect that it shall avoid the Copy-hold for although at once viz. during the expectancy of the said Lease to begin at a day to come the Copy-hold be not extinct yet now he may say That all times as in respect to him the Copy-hold Custome was broken I hold That a Tenant in Dower shall not avoid a Copy-hold made during the Coverture and so it hath been adjudged in the Kings Bench. But I conceive there is a difference betwixt that Case and the Case in question for in that Case the title of the wife to have Dower is not consummate till the death of the Husband Anderson Chief Justice I can shew you an Authority That if I grant unto you such Land and the Manor of D. there the Land shall pass as parcell of the Manor Periam True there for it doth enforce the first grant But here the intent of the parties doth appear and the same is to be respected Anderson But their intent ought to be according to the Law as in 19. H. 8. it is holden it shall be in a Devise Anderson upon the Argument of this Case said That if a Warranty be to a whole Manor and also to an Advowson the party cannot have Two Warrantia Chartae Periam If he had further said in the Deed That his intent was that it should be severall the same had altered the Case Anderson No truely because his intent did not stand with the rule of Law As if a man devise that his Lands shall be sold and doth not say by whom it is void and yet the intent is expressed If the Lease had been by severall Deeds Periam said The Copy-hold had beene severed Windham denied that If both the Deeds bee delivered at one time It was adjourned Hill 29. Eliz. In the Common Pleas. 148 AN Information was upon the Statute of 5. 6. E. 6. for buying of seed Corn having sufficient of his own and not bringing so much unto the Market of his own corn and a generall issue was found upon it And it was delivered for Law to the Jury by the Justices That a Contract in Market for corn not in the Market or which was not there that day is not within the Branch of the Statute But if corn or graine be in the Market although that the Contract be made in a house out of the Market and delivered to the Vendee out of the Market yet it is within the Statute And in the Argument of that Case Anderson said That the Market shall be said The place in the Town where it hath used to be kept and not every place of the Town And a Sale in Market overt in London ought to be in a Shop which is open to the street and not in Chambers or inward rooms otherwise the property is not altered And so it is of all Statutes in open Markets And the Recorder of London said That such was their Custome in London Hill 29. Eliz. in the Common Pleas. 149 It was holden by Anderson chiefe Justice That if one deviseth Lands to the heirs of I. S. and the Clerk writes it to I. S. and his heirs that the same may be holpen by averrment because the intent of the Devisor is written and more And it shall be naught for that which is against his intent and against his will and good for the residue But if a Devise be to I. S. and his heirs and it is written but to the heirs of I. S. there an averrment shall not make it good to I. S. because it is not in writing which the Statute requires anâ— so an averrment to take away surplusage is good but not to encrease that which is defective in the Will of the Testator Mich. 29. Eliz. in the Common Pleas. 150 A Feoffment was made unto A. unto the use of him and his wife dis-punishable of Wast during their lives one died and the Survivor committed Wast It was the opinion of the whole Court that an Action of Wast would not lie by him in the Reversion for it is a Priviledge which is annexed to the Estate which shall continue as long as the Estate doth continue Mich. 29 Eliz. in the Common Pleas. 151 A. grants annualem redditum out of Lands in which he hath nothing The opinion of
the Court was That it is a good grant of an Annuity by these words annualem redditum But whether the Husband shall have a Writ of Annuity after the death of the wife for an Annuity during the Coverture they were in some doubt because it is but a thing in Action as is an Obligation Otherwise were it of a Rent which she had for life Note in pleading for a Rent he shall plead That he was seised c. Mich. 29. Eliz. in the Common Pleas. 152 WINKFEILD'S Case Winkfeild devised Land in Norfolk to one Winkfeild of London Goldsmith and to his heirs in Fee And afterwards he made a Deed of Feoffment thereof to divers persons unto the use of himselfe for life without impeachment of waste the Remainder unto the Devisee in fee. But before he sealed the Deed of Feoffment he asked one if it would be any prejudice to his Will who answered No. And the Devisor asked again if it would be any prejudice because he conceived that he should not live untill Livery was made And it was answered No. Then he said that he would seale it for his intent was that his Will should stand And afterwards Livery was executed upon part of the Land and the Devisor died Rodes and Periam Justices The Feoffment is no Countermand of the Will because it was to one person but perhaps it had been otherwise if it had been to the use of a stranger although it were not executed Anderson Chiefe Justice and others the Will is revoked in that part where the Livery is executed And he said It would have been a question if he had said nothing And all the Justices agreed That a man may revoke his Will in part and in other part not And he may revoke it by word and that a Will in writing may he revoked by word Periam said It is no revocation by the party himselfe but the Law doth revoke it to which Windham agreed But he said That if the party had said nothing when he sealed the Feoffment it had been a revocation of the party and not of the Law Periam If the Witnesses dye so as he cannot prove the words spoken at the sealing of the Feoffment the Feoffment will destroy the Will and so he spake to Anderson who did not deny it All this was delivered by the Justices upon an Evidence given to a Jury at the Barre Mich. 29. Eliz. in the Common Pleas. 153 NOte That it was said by Anderson Chiefe Justice That if one intrude upon the possession of the King and another man entreth upon him that he shall not have an Action of Trespasse for he who is to have trespasse ought to have a possession and in this case he had not for that every Intruder shall answer the King for his time and therefore he shal not answer to the other party To which Walmesley and Fenner Serjeants agreed Periam doubted of it for he conceived That he had a possession against every stranger Snagg Serjeant conceived That he might maintain an Action of Trespasse but Windham and Rodes Justices were of opinion that he could not maintain Trespass Walmesley he cannot say in the Writ Quare clausam frâ—git c. Rodes vouched 19. E. 4. to maintain his opinion Mich. 29. Eliz. in the Common Pleas. 154 NORRIS and SALISBURIE'S Case IN an Action of Debt upon a Bond the Case was this Norris was possessed of wools for which there was a contention betwixt the Defendant and one A. And Norris promised A. in consideration that the goods were his and also that he should serve processe upon Salisbury out of the Admiral Court that he would deliver the goods to A. And afterwards he delivered the goods to Salisbury the Defendant who gave him Bond with Condition to keep him harmlesse from all losses charges and hinderances concerning and touching the said wools Afterwards A. served processe upon him and he did not deliver to him the goods for which A. brought his Action upon the Case against Norris who pleaded That he made no such promise which was found against him And afterwards Norris brought an Action of Debt upon the Bond against Salisbury because he did not save him harmlesse in that Action upon the Case And the opinion of the whole Court was That the Action of Debt would not lie because that the Action upon the Case did not concern the wools directly for the Action is not brought but for breach of the promise And that is a thing of which the Defendant had not notice and it was a secret thing not concerning the wools but by circumstances and so out of the Condition Anderson Chiefe Justice said That if A. promise B. in Consideration that B. is owner of goods and hath them to deliver them to C. the same may be a good consideration yet he somewhat doubted of it But Walmesley did affirme it to be a good Consideration Mich. 29 Eliz in the Common Pleas. 155 IT was holden by the whole Court That in an Action of Trespasse It is a good plea in barre That the Plaintiffe was barred in an Assize brought by him against the Defendant and issue joyned upon the Title But otherwise if it were upon the generall issue viz. Nul tort nul disseisin For then it might be that the Plaintiffe was never ousted nor disseised and so no cause to recover In which case it was no reason to put him from his Writ of Right Mich. 29. Eliz. in the Common Pleas. Intratur Mich. 27. Rot. 1627. 156 BRAGG'S Case A Woman having cause to be endowed of a Manor in which are Copy-holders doth demand her Dower by the name of certain Messuages certain Acres of land and certain Rents and not by the name of the third part of the Manor and she doth recover and keeps Courts and grants Copy-holds It was holden by the whole Court that in such Case that the Grants were void for she hath not a Manor because she hath made her demand as of a thing in grosse Otherwise if the demand had been of the third part of the Manor for then she had a Manor and might have kept Courts and granted Copies And the pleading in that Case was That she did recover the third part of the Manor per nomen of certain Messuages and Acres and Rents which was holden to be no recovery of the third part of the Manor Hill 29. Eliz. in the Common Pleas. 157 NOte it was holden for Law That the Justices may increase but not decrease damages because the party may have an Attaint and so is not without remedy But note contrary by Anderson and Periam Justices Hill 39. Eliz. in the Common Pleas. 158 SErjeant Fenner moved this Case That the Lord of a Manor doth prescribe That if the Tenant do a Rescous or drive his Cattel off from the Land when the Lord comes to distrain that the Tenant shall be amerced by the Homage and that the Lord may distrain for the same Anderson
intend to entermarry with Alice S. by Indenture did covenant with J. D that he would marry the said Alice being then of the age of seventeen years and that after the marriage had betwixt them that they would levy a Fine of divers Lands which said Fine should bee unto the use of the said J. D. and his Heirs and accordingly after the entermarriage the said J. S. and Alice his Wife did levy a Fine unto the said J. D. and his Heirs without any other use implied or expressed but what was contained in the said Indenture before marriage and according to the said Fine the Conusee continued the possession of the said Lands for a long time viz. for thirty years Cook Chiefe Justice said That this continuance of possession was a strong proofe and could not otherwise be intended but that the Conusee came to the possession of the said Lands by the said Fine which was so levied to him and his heirs And he said That it was adjudged in this Court in the Case betwixt Claypoole and Whestone That in a Recovery the Covenant did not lead the use of the Recovery for that it was but an evidence that such was the intent of the parties And in this Case it was agreed by the whole Court and was so said to be resolved in Clogat and Blythes case 30. Eliz. That when no use is expressed or implyed by Indenture or other agreement that it shall be to the ancient use viz. to the use of the Conusor As if Husband and wife be seised of one moytie of the Land in the right of the wife and the Husband of the other moytie by himselfe and they joyne in a Fine generally the Conusee shall be seised to the former uses as it is agreed in Beckwiths case C. 2. part And so it was agreed That if the Husband doth declare the use and the wife doth not disagree or vary from it that the declaration of the Husband shall bind the wife And Cook said That it is not alwayes necessary that the wives name be set to the Indenture which doth declare an use And further Cook said That if a Fine be levied of Lands yet the uses may be declared by subsequent Indentures And it was said Obiter in this Case That if a man for valuable consideration doth purchase a Lease for years and hee nameth two of his servants as joynt-purchasers with him in the Deed and afterwards the Master would sell the Lands alone and the servants do interrupt the sale or will not joyne with him that he hath no remedy to compell them to do it but by a Bill of Chancery Trinit 8. Jacobi in the Common Pleas. 254 A Vicar was endowed in the time of King Henry the 3d. of divers Tithes and afterwards he libelled for those Tithes in the spirituall Court The Defendant alledged a Mâ—dus Decimandi and prayed a Prohibition and day was given to the party to shew cause why the same should not be granted and at the day the Deed of Endowment was produced and shewed in Court By which it did appear That the Vicar was endowed of Hay viz. of the tenth part of it and so of the remnant of the Tithes for which he libelled whereupon the Court refused to award a Prohibition Quaere Causam For as I conceive a Modus Decimandi may accrue after the Endowment Trinit 9. Jacobi in the Common Pleas. 255 Sir W. DETHICK and STOKE's Case STokes libelled against Sir William Dethick in the spirituall Court for calling of him Bald Priest Rascally Priest and for striking of him and for those offences he was fined by the spirituall Court an hundred pound and imprisoned And the opinion of the whole Court was That neither the Fine nor Imprisonment were justifiable because the Statute of Articuli Cleri is Non imponant poenam pecuniariam nisi propter redemptionem c. And Cook said They might onely excommunicate and thereupon a Writ de Excommunicatâ— capiendo might be awarded and that is their onely course and then the Party may have his Cautione admittenda And the Court said That if the spirituall Court would not enlarge the party upon sufficient Caution offered them that then the Sheriffe should deliver him Trinit 8. Jacobi in the Common Pleas. 256 IT was the opinion of the whole Court That if a man have a Judgment against two men upon a joynt Bond That he cannot have severall Executions viz. a Capias ad satisfaciendum against the one and an Elegit against the other for he ought to have but unicam satisfactionem although he sue them by severall Actions And if he sue forth severall Executions an Audita Querela will lye Mich. 9. Jacobi in the Common Pleas. 257 CARLE'S Case NOte it was adjudged in this Case That if a man say of another that he hath killed a man an Action upon the case will not lie for those words for he may do it as Executioner of the Law or se defâ—ndeâ—do So if one say of another That he is a Cutpurse an Action will not lie for that a Glover doth and a man may cut his own purse and the same Term it was holden in the Kings Bench That an Action will not lie for calling one Witch Mich. 9. Jacobi in the Common Pleas. 258 IT was holden by the whole Court That a Commoner cannot generally justifie the cutting and taking away of Bushes off from the Common but by a speciall prescription he may justifie the same So he may say That the Commoners have used time out of mind to dig the Land to let out the water that he may the better take his Common with his cattell and it was agreed That if the Lord of the Waste doth surcharge the Common that the Commoner cannot drive his cattell off the Common or distraine them damage feasance as he may the cattell of a stranger But the remedy against the Lord is either an Assize or an Action upon the Case Mich. 9. Jacobi in the Common Pleas. 259 IT was agreed by the whole Court That if a man deviseth unto his daughter an hundred pound when she shall marry or to his son when he shall be of full age and they die before the time appointed that their Executors shall not have the money otherwise if the devise were to them to be paid at their full ages and they die before that time and make Executors there the Executors may recover the Legacy in the spirituall Court Hill 9. Jacobi in the Kings Bench. 260 ROYLEY and DORMER's Case TWo Boyes did contend and fight near unto their houses and the one stroke the other so as he did bleed who went and complained to his father who having a rod with him came to the other boy and beat him upon which he died And the opinion of the whole Court was That it was not murder Mich. 9. Jacobi in the King 's Bench. 261 EDWARDS and DENTON's Case UPon a special Verdict the Case was
that a Man was seised of the Manor of D. and of a house called W. in D. and also of a Lease for years in D. and he did bargain and sell unto another his Manor of D. and all other his Lands and Tenements in Dale and in the indenture did covenant that he was seised of the premisses in Fee which was left out of the Verdict and if the Lease for years should pass by the general words was the question Quaere of the case because Trinit 10. Jacobi the Court was divided in opinion in this Case Mich. 9. Iacobi In the King 's Bench. 262 HUGHES and KEENE's Case THe Plaintiff declared that whereas he was possessed of a Messuage for years which had ancient lights and the Defendant possessed of another House adjoyning and a Yard that the Defendant upon the said Yard had built a House and stopped his lights The Defendant pleaded that the custom of London was that every man might build upon his old Foundation and if there be not any agreement might stop up the Windows of his Neighbour upon which the Plaintiff did demurre in Law and it was adjudged for the Plaintiff because that the Defendant did not answer the Plaintiffs charge that he had built upon the new and not upon the old Foundation And it was holden by the whole Court in this Case that a man may build upon an old Foundation by such a custom and stop up the lights of his Neighbour which are adjoyning unto him and if he make new Windows higher the other may build up his house higher to destroy those new Windows But a man cannot build a House upon a place where there was none before as in a Yard and so stop his Neighbours lights And so it was adjudged in the time of Queen Elizabeth in Althans Case upon such a custom in the City of York And it was said by Cook Chief Justice That one prescription may be pleaded against another where the one may stand with the other as it was adjudged in Wright and Wrights Case That a Copy-holder of a Bishop did prescribe that all Copy-holders within the Manor have been discharged of Tithes But not where one prescription is contrary to the other whereas one prescribes to have lights and the other prescribes to stop the same lights Quaere Hill 9. Iacobi in the King 's Bench. 263 SAMFORD and HAVEL's Case IN an Action of Trespass for 30. Hares and 300. Coneys hunted in his Warren taken and carried away which Trespass was layd with a continuando from such a time till such a time the Defendant justified because he had common in the place where c. to a Messuage six Yard Lands for 240. Sheep and that he and all those whose estate he hath time out of mind have used at such time as the Common was surcharged with Coneys to hunt them kill and carry them as to his Messuage appertaining upon which the Plaintiff did demurre in Law because a man cannot make such a prescription in the Free-Warren and Free-hold of another Man And secondly because a man cannot so prescribe to hunt kill and carry away his Coneys as pertaining to his Messuage But a Man may prescribe to have so many Coneys to spend in his House and for these causes in the principal case the prescription was holden for a void prescription and Judgment was given for the Plaintiff Hill 9. Jacobi in the Common Pleas. 264 COX and GRAY's Case IT was adjudged upon a Writ of Error brought upon a Judgment given in the Marshalsey in an Action of trover and conversion of goods That if none of the parties be of the Kings houshold and judgment be given there that the same is Error and for that cause the Judgment was reversed Hill 9. Iacobi in the Common Pleas. 265 MORRIS's Case IN an Action upon the case for putting of cattel upon the common it was adjudged that if the cattel of a Stranger escape into the common the Commoner may distrain them damage feasance as wel as where the cattel are put into the common by the stranger Pasch 10. Jacobi in the Common Pleas. 266 The Lord MOUNTEAGLE and PENRUDDOCK's Case IT was holden by the whole Court in this case and agreed by all the Serjeants at the Barre That if two men submit themselves to the arbitrament of I. S. And the Arbitrator doth award that one of them shall pay ten pound and that the other shall make a release unto him that the same is a void Award if the submission be not by Deed and hee to whom the Release is to be made by the Award may have remedy for it for otherwise the one should have the ten pound and the other without remedy for the Release And it was resolved That upon submission and arbitrament that the party may have an Action upon the Case for not making of the Release And Cook chief Justice said That it was wisely done by Manwood chiefe Baron when he made such award That a Lease or such like Collaterall thing should be done To make his Award that he should make the Release or pay such a sum of money for which the party might have a remedy I conceive that the reason is That no Action upon the case upon an Arbitrament lieth because it is in the Nature of a Judgement At another day the opinion of the Court was with Cook and 20. H. 6. and 8. E. 4 5. cited to the purpose that there ought to be reciprocall remedy It was also said in this Case That by the Statute of 5. H. 5. A man cannot be Nonsuit after verdict Pasch 10. Jacobi In the Common Pleas. 267 COOK and FISHER's Case IN a Replevin the Defendant did avow for rent granted to him by a private Act of Parliament The Plaintiffe did demand Oyer of the Act and the opinion of the Court was that he ought to have Oyer for they held that the Oyer of no Record shall be denied to any person in case he will demurre And the Record of the Act shall be entred in haec verba Pasch 10. Jacobi in the Common Pleas. 268 The Bakers Case of Gray's-Inne against Occould AN Action of Debt was brought in London against Occould late Steward of Gray's-Inne upon a generall indebitatas assumpsit without shewing the particulars which plea was removed into the Common Pleas. And it was holden by the Court That the Action as it was brought would not lie for the inconvenience which might follow For the Defendant should be driven to be ready to give an answer to the Plaintiffe to the generality And therefore the Plaintiffe ought to bring a speciall Action for the particular things The like Case was in the Marshalsey and because they did not declare in a speciall manner Exception was taken to it and adjudged the Action upon a generall Indebitatas assumpsit did not lie Quaere Trinit 10. Jacobi in the Common Pleas. 269 READ and HAWE's Case IN a Replevin Trinit
was adjudged against the Plaintiffe as in a Valore Maritagii if the Defendant will shew that hee tendered a mariage whereas it is not needfull for him so to do yet if the same be not true and issue be taken upon it Judgement shall be given against him wherefore hee concluded for the Plaintiffe The principall Case was adjourned Trinit 10 Jacobi in the Common Pleas. 270 GOODMAN and GORE 's Case GOodman brought an Assize against Gore and others for erecting of two houses at the West end of bis Wind-Mill per quod ventus impeditur c. And it was given in Evidence That the said houses were situate about eighty feet from the said Mill and that in height it did extend above the top of the Mill and in length it was twelve yards from the Mill and notwithstanding this neernesse the Court directed the Jury to find for the Defendant And in that Evidence it appeared by a Deed procured by the Plaintiff himself That his Wife was Joint-tenant with him and therefore it was holden by the Court That the Assize brought in his own name alone was not well brought And Cook Chief Justice also said That the Count was not good by reason of these words viz. Per quod ventus impeditur for he said That these were the words of an Action upon the Case and not of an Assize But the Clarks said That such was the usuall forme ad quod non fuit responsum and in that Case it was said obiter by Cook Chief Justice That if the Husband and Wife be Joint-tenants and the Husband sowes the Land and dieth and the Wife doth survive that she shall have the embleements Trinit 10. Jacobi in the Common Pleas. 271 HARDINGHAM's Case IN an Action of Trespass Quare clausum fregit the Defendant did justifie That he did enter and distrain for an Amercement in the Sheriffs Torne which was imposed upon the Plaintiffe for enchroaching upon the Kings High-way without shewing that the same was presented before the Justices of Peace at their Sessions as the Statute of 1. E. 4. cap. 2. requireth Haughton Serjeant for stay of Judgement in this Case said That the Statute is That the Justices of Peace shall award Process against the person who is so indicted before the Sheriffe which was not done in this Case And he said That the Statute did not extend to Amercements only in Trespasses Quare vi armis but to every other Trespass for the Statute speaks of Trespasses and other things which shall be extended to all Trespasses Cook Chief Justice said That the Statute of 1. E. 4. cap. 2. did not extend to Trespasses which were not contra pacem as the encroachment in this Case is for otherwise the Lord of a Leet could not distrain for an amercement without such presentmennt before Justices of the Peace And although the Statute speaks of Felony Trespass c. the same is to be meant of other things of the same nature which is proved by the clause in the Statute viz. That they shall be imprisoned which cannot be in the principall Case at Bar. Warburton and Winch Justices agreed in opinion with Cook Chief Justice Trinit 10. Iacobi in the Common Pleas. 272 FRAUNCES and POWELL's Case IT was moved for a Prohibition to the Spirituall Court for citing the Plaintiffe out of his Diocess upon the Statute of 23. H. 8. and by the Libel it appeared That Powell the Defendant had complained against the Plaintiffe in the Court of Arches for scandalous words spoken in the Parish of Saint Sepulchers London Cook Chief Justice held That a Prohibition would lie unlesse the Bishop of London had given liberty to the Arch-Bishop of Canterbury to entermeddle with matters within London for he said that in the Statute of 23. H. 8. there is a clause of exception in case where such liberty is given by the inferior Diocesan and therefore a day was given by the Court to procure a certificate of the opinion of the Civilians whether such authority given by the Inferiour Ordinary to the Arch-Bishop were Warranted by there Law or not for the Statute of 23. H. 8. is so and then if the authority be lawfully granted no prohibition will lye And Cook said that the Statute of 23. H. 8. was made but in affirmance of the common Law as appears by the books of 8. H. 6. and 2. H. 4. For there it is said that if one be excomenge in a forrain Dioces that the same is void coram non judice and he said that the principal cause of making of the said Statute was to maintain the Jurisdiction of Inferiour Diocesses But it was holden that if the Plaintiff had defamed the Defendant within the Peculiar of the Arch-Bishop that in such case he might be punished there although that he did inhabit within any remote place out of the Peculiar of the Arch-Bishop and in this Case it was said that the Arch-Bishop had in thirteen Parishes in London Peculiar Jurisdiction It was adjorned Trinit 10. Jacobi in the Court of Wards 273 COTTONS Case SIR John Tirrel Tenant in Capite made a Lease unto Carrel for 1000. years and further covenanted with Carrel and his Heirs that upon payment of five Shillings that he and his heirs would stand seised of the same Lands unto the use of Carrel and his Heirs And in the Deed there were all the ordinary clauses of a conveyance bona fide viz. That the Lessee should enjoy the Lands discharged of all Incumbrances and that he would make further assurance c. Carrel assigned this Lease to Cotton who died in possession his Heir within age and in two Offices the Jury would not find a Tenure because it was but a Lease for years And in a que plura the matter came in question in the Court of Wards And Cook Chief Justice of the Common Pleas and Tanfeild Chief Baron of the Exchequer were called for Assistants to the Court of Wards and they were of opinion that because it was found by the Offices that Cotton died in possession that the same was sufficient to entitle the King to Wardship of the Lands But before the Judges delivered there opinions the Lessee was compelled to prove the Sealing of the Lease by witnesses which was dated 12. years before For if they have no sufficient witnesses to prove the Sealing of the Lease without all doubt there was sufficient matter found to entitle the King viz. that the party died in possession which shall be intended of an estate in Fee simple till the contrarie be proved But the two Justices moved the Attorney That he would not trouble himself with the proof of a matter in fact For they said It was confessed on all sides that there was such a Lease and that the Assignee of it died in possession of the Land and therefore they said that they were cleer of opinion that the Heir of such a Lessee who died in possession should be
in Ward For Cook Chief Justice said that all Offices which are found to deceive the Crown of such an ancient flower of the Crown as Wardship should be void as to that purpose and most beneficial for the King And he cited the Case in 36. H. 8. Where the Kings Tenant made a Feoffment and took back an estate unto himself for life the Remainder to his Grand-child for 80. years and died that in that Case the Heir was in Ward and they said that in the case at Barre the Heir had power of the Inheritance upon payment of five Shillings and if the Lease for years be found and proved by witnesses yet it carrieth with it the badges of fraud And Tanfeild Chief Baron said that if a Lease for 100. years shall be accounted Mortmain à fortiori this Lease for 1000. years shall be taken to be made by fraud and collusion And Cook said that the Lord Chancellour of England would not relieve such a Lessee in Court of Equity because the begining and ground of it is apparant fraud Note the lands did lye in Springfield in Essex Trinit 10. Jacobi in the Common Pleas. 274 MEADES Case AN Action of Debt was brought upon a Bond against Meade who pleaded that the Bond was upon condition that if he paid ten pound to him whom the Obligee should name by his last will that then c. and said that the Obligee made his Will and made Executors thereof but did not thereby name any person certain to take the ten pound Sherley Serjeant moved that the Executors should have the ten pound because they are Assignees in Law as it is holden in 27. H. 8. 2. But the whole Court was of opinion that the Executors were not named in the Will for such a purpose viz. to take the ten pound For they said It is requisite that there be an express naming who shall take the ten pound otherwise the Bond is saved and not forfeited And Cook put this Case If I be bounden to pay ten pound to the Assignee of the Obligee and his Assignee makes an Executor and dieth the Executor shall not have the ten pound But if I be bounden to pay ten pound to the Obligee or his Assignees there the Executor shall have it because it was a duty in the Obligee himself the same Law if I be bound to enfeoffe your Assignees c. Wherefore it it was adjudged for the Defendant Trinit 10. Jacobi in the Common Pleas. 275 GREENWAY and BAKER's Case IT was moved and afterwards resolved in the Case of a Prohibition prayed to the Court of Admiralty That if a Pirat taketh goods upon the Sea and selleth them that the property of them is changed no more then if a theife upon the Land steales them and selleth them And in this Case it appeared by the Libell That bona piratica fuerint infra Portam Argier super altum mare And for that cause a Prohibition was denied because Argier being a forrain Port the Court could not take notice whether there were such a place of the Sea called the Port or whether it were within the Land or not Afterwards upon the mediation of the Justices the parties agreed to try the cause in the Guild-hall in London before the Lord Chiefe Justice Cook Trinit 10. Jacobi in the Common Pleas. 276. Sir FRANCIS FORTESCUE and COAKE's Case UPon an Evidence in an Ejectione firme betwixt the Plaintiffe and Defendant The Court would not suffer Depositions of witnesses taken in the Court of Chancery or Exchequer to be given in Evidence unlesse affidavit be made that the witnesses who deposed were dead And Cook Chiefe Justice said nullo contradicente That it is a principall Challenge to a Jurour That he was an Arbitrator before in the same case because it is intended that he will incline to that partie to which he inclined before but contrary is it of a Commissioner because he is elected indifferent And it was also said in this Case That one who had been Solicitor in the Cause is not a fit person to be a Commissioner in the same Cause Trinit 10. Jacobi in the Common Pleas. 277 BArker Serjeant in Arrest of Judgement moved That the Venire facias did vary from the Roll in the Plaintiffs name for the Roll was Peter Percy and the Venire facias John Percy and the postea was according to the Roll which was his true name The Court doubted whether it might be amended or whether it should be accounted as if no Venire facias had issued because it is betwixt other parties But it was holden That in case no Venire facias issueth the same is holpen by the Statute of Jeofailes and in this case it is in effect as if no Venire facias had issued forth and so it was adjudged And Cook Chiefe Justice said that if there be no Venire facias nor habeas Corpora yet if the Sheriffe do return a Jury the same is helped by the Statute of Jeofailes Warburton Justice contrary vide C. 5. part Bishops case And Harris Serjeant vouched Trinit 7. Jacobi Rot. 787. in the Exchequer Herenden and Taylors case to be adjudged as this Case is Trinit 10. Jacobi in the Common Pleas. 278 BROWN's Case IT was holden by the whole Court in this case That if a man hath a Modus Decimandi for Hay in Black-acre and he soweth the said acre seven years together with corn that the same doth not destroy the Modus Decimandi but the same shall continue when it is again made into hay And when it is sowed with corn the Parson shall have tithe in kind and when the same is hay the Vicar shall have the tithe hay if he be endowed of hay Trinit 10. Jacobi in the Common Pleas. 279 JAMES and RATCLIFF's Case IN Debt upon a Bond to perform such an agreement The Defendant pleaded Quod nulla fuit conclusio-sive agreeamentum The Plaintiff said Quod fuit talis conclusio agreeamentum de hoc ponit se super patriam The Court held the same was no good issue because a Negative and an Affirmative Trinit 10. Jacobi in the Common Pleas. 280 WETHERELL and GREEN's Case IT was said by the Pronothories That if a Nihil dicit be entred in Trinity Term and a Writ of Enquiry of Damages issueth the same Term that there needs not any continuance but if it be in another Term it is otherwise The Court said If it were not the course of the Court they would not allow of it but they would not alter the course of the Court the words of continuance were Quia vicecomos non misit brev Trinit 10. Jacobi in the Common Pleas. 281 PARROT and KEBLE's Case A Man levied a Fine unto the use of himself for life the remainder in tail c. with power reserved to the Conusor to make Leases for eighty years in Possession or Reversion if A. B. and C. did so long live reserving the ancient rent
And per Curiam a Prohibition shal be awarded And Cook chief Justice said That there were three Causes in the Bill for which a Prohibition should be granted which he reduced to three Questions 1. If a Copy-holder payeth his rent and the Lord maketh a Feoffment of the Manor Whether the Copy-holder shall be compelled to attorn 2. If a man be seised of Freehold Land and Covenants to stand seised to an use Whether in such case an Attornment be needfull 3. If a Feoffment be made of a Manor by Deed Whether the Feoffee shall compell the Tenants to attorn in a Court of Equity And for all these Questions It was said That the Tenants shall not be compelled to attorn for upon a Bargain and Sale and a Covenant to stand seised there needs no attronement And Cook in this case said That in 21. E. 4. the Justices said That all Causes may be so contrived that there needed to be no Suit in Courts of Equity and it appears by our books That a Prohibition lies to a Court of Equity when the matter hath been once determined by Law And 13. E. 3. Tit. Prohibition and the Book called the Diversity of Courts which was written in the time of King Henry the eighth was vouched to that purpose And the Case was That a man did recover in a Quare Impediâ— by default and the Patron sued in a Court of Equity viz. in the Chancery and a Prohibition was awarded to the Court of Chancery Mich. 11 Jacobi in the Common Pleas. 298 Sir JOHN GAGE and SMITH's Case AN Action of Waste was brought and the Plaintiffe did declare that contrary to the Statute the Lessee had committed Waste and Destruction in uncovering of a Barn by which the timber thereof was become rotten and decayed and in the destroying of the stocks of Elmes Ashes Whitethorn and Blackthorn to his damage of three hundred pound And for title shewed That his Father was seised of the Land where c. in Fee and leased the same to the Defendant for one and twenty years and died and that the Land descended to him as his son and heir and shewed that the Waste was done in his time and that the Lease is now expired The Defendant pleaded the generall issue and it was found for the Plaintiffe and damages were assessed by the Jury to fifty pound And in this case it was agreed by the whole Court 1. That if six of the Jury are examined upon a Voyer dire if they have seen the place wasted that it is sufficient and the rest of the Jury need not be examined upon a Voyer dire but onely to the principall 2. It was agreed if the Jury be sworn that they know the place it is sufficient although they be not sworn that they saw it and although that the place wasted be shewed to the Jury by the Plaintiff's servants yet if it be by the commandment of the Sheriffe it is as sufficient as if the same had been shewed unto them by the Sheriff himselfe 4. It was resolved That the eradicating of Whitethorn is waste but not of the Blackthorn according to the Books in 46. E. 3. and 9. H. 6. but if the blackthorn grow in a hedg and the whole hedg be destroyed the same is Waste by Cook chief Justice It was holden also so that it is not Wast to cut Quick-set hedges but it shall be accounted rather good husbandry because they will grow the better 5. It was agreed That if a man hath under-woods of Hasell Willowes Thornes if he useth to cut them and sell them every ten years If the Lessee fell them the same is no wast but if he dig them up by the roots or suffereth the Germinds to be bitten with cattel after they are felled so as they will not grow again the same is a destruction of the Inheritance and an Action of wast will lie for it But if he mow the Stocks with a wood-sythe as he did in the principall Case the same is a malicious Wast and continuall mowing and biting is destruction 6. It was said That in an Action of Wast a man shall not have costs of Suit because the Law doth give the party treble damages And when the generall issue Nul Wast is pleaded and the Plaintiff counted to his damages 100l. the Court doubted whether they could mitigate the damage But 7. It was agreed That in the principal Case although the issue were found for the Plaintiff that he could not have judgment because he declared of Wast done in 8. several closes to his damage of 300l. generally and did not sever the damages And the Jury found That in some of the said Closes there was no Wast committed Wherefore the Court said he could not have judgement through his own default But afterwards at another day Hobart then chief Justice and Warburton Justice said That the verdict was sufficient and good enough and so was also the declaration and that the Plaintiffe might have judgment thereupon But yet the same was adjourned by the Court untill the next Term. Mich. 11. Jacobi in the Common Pleas. 299 CLARK's Case NOte It was said by Cook chief Justice and agreed by the whole Court and 41. and 43. E. 3. c That if a man deliver money unto I. S. to my use That I may have an Action of Debt or account against him for the same at my election And it was agreed also That an Action of Trover lieth for money although it be not in bags but not an Action of Detinue Mich. 11. Jacobi in the Common Pleas. 300 IRELAND and BARKER's Case IN an Action of Wast brought the Writ was That the Abbot and Covent had made a Lease for years c. And it was holden by the Court that it was good although it had been better if the Writ had been That the Abbot with the assent of the Covent made the Lease for that is the usuall form but in substance the Writ is good because the Covent being dead Sons in Law by no intendment can be said to make a Lease But the Dean and Chapter ought of necessity to joyne in making of a Lease because they are all persons able and if the Dean make a Lease without the Chapter the same is not good per curiam if it be of the Chapter Lands And in Adams and Wâ—oâ—â—stey's Case Harris Serjeant observed That the Lease is said to be made by the Abbot and Covent and it is not pleaded to be made by the Abbot with the assent of the Covent Mich. 11 Iacobi In the Common Pleas. 301 The Dean and Canons of Winsor and WEBB's Case IN this Case it was holden by the Court That if a man give Lands unto Dean and Canons and to their Successors and they be dissolved or unto any other Corporations that the Donor shall have back the Lands again for the same is a condition in Law annexed to the Gift and in such Case no Writ of
the Fleet because he had made Return of a Writ contrary to what he had said in the same Court the day before and 11. H. 6. was vouched by Warburton Justice That if the Sheriff do return that one is languidus in prisona whereas in truth he is not languidus the Sheriff shall be sued for his false Return which was agreed by the whole Court Quod nota Mich. 11. Jacobi in the Common Pleas. 318 WArburton Justice asked the Pronothories this question If in Trespass the plaintiff might discontinue his action within the yeer To which the Pronothories answered That if it be before any plea be pleaded that he might But the Justices were of a contrary opinion that he could not because then costs which are given by the Statute should be lost Mich. 11. Jacobi In the Common Pleas. 319 LAISTON's Case IN Trespass for a Wâ—y the Defendant pleaded a plea in bar which was insufficient and afterwards the plaintiff was Non-suit yet it was resolved by the Court that the defendant should have his costs against the plaintiff But if a default be in the originall Writ and afterwards the plaintiff is Non-suit there the defendant shall not have costs because that when the Original is abated it is as if no suit had been And so was the opinion of the whole Court Mich. 11. Iacobi in the Common Pleas. 320 HILL and GRUBHAM's Case THe Case was this A Lease was made unto Grubham by a deed paroll Habendum to him his wife and his daughter successivè sicut scribuntur et nominantur in ordine Afterwards Grubham dyed and then his wife dyed And if it were a good estate in Remainder to his daughter was the Question Harris Serjeant The Remainder is void and not good by way of Remainder for the incertainty C. 1. part in Corbets case In all Contracts and bargains there ought to bee certainty And therefore 22. H. 6. is That if a Feoffment be made to two et haeredibus it is void although it be with warranty to them and their heirs Vide 9. H. 6 35. Where renunâ—iavit totam communiam doth not amount unto a Release because it is not shewed to whom the Release is and so in 29. Eliz. in the Kings Bench in Windsmere Hulbards case Where an Indenture was to one Habendum to him and to his wife and to a third person Successive it was holden that it was void by way of Remainder to any of them And there it was Resolved 1. That they did not take presently 2. That they could not take by way of Remainder And 3. that They could not take as Occupants because that the intent of the Lessor was that they should take but as one estate But the Court was of opinion against Harris And Resolved That the daughter had a good estate in Remainder and that the same did not differ from the Case in Dyer Where a Lease was made by Indenture to one Habendum to him to another successivè sicut nominantur in Charta for that those words Sicut nominantur in Charta maketh the estate to be certain enough And so they said in this Case Sicut scribuntur et nominantur in Ordine is certain enough and shall be taken to be Sicut scribuntur et nominantur in eadem charta But they agreed according to the Case in Brooks Cases That a Lease to three Habendum 〈…〉 Mich. 11. Jacobi in the Common-Pleas 321. TRAHERNS Case AN Assize of Nusans was brought against the Defendant because that Levavit quandam domum ad nocumentum c. And the Plaintiff shewed how that he had a Windmil and that the Defendant had built the said house so as it hindred his Mill And the Jury found that the Defendant levavit domum and that but two feet of it did hinder the Plaintiffs Mill and is ad nocumentum And how Judgment should be given was the question And the Court was of opinion That Judgment should be that but part of the house should be abated viz. That which was found to be ad nocumentum And it was said by some That the Assise is such a Writ which extends to the whole house and therefore that the whole house should be abated according to the Writ But a difference was taken betwixt the words Erexit and Levavit For Erexit is but when parcel of a house is set up ad nocumentum but Levavit is when an entire house is levied from the ground And it was said by Hobart Chief Justice That if the Defendant had not levied the house so high by two yards it had been no Nusans for the Jury find that the two yards only are ad nocumentum And therefore he conceived that the Writ was answered well enough and that but part of the house should be abated For the Writ is Quod levavit quandam domum c. And the Verdict is Quod levavit domum But that but two yards of it is ad nocumentum And therefore he said the Writ is answered well enough and that the Judgment should be given That that only should be abated which was ad nocumentum c. Quaere for the Case was not resolved And vid. Batten Sympsons Case C. par 9. to this purpose Mich. 11. Jacobi in the Common-Pleas 322. BAGNALL and POTS Case IT was resolved by the Court in this Case That when an Issue is joyned upon Non concessit that the Issue shall be tryed where the Land is But if a Lease be in question and Non concessit be pleaded to it it shall be tryed where the Lease was made 2. It was resolved That if Copy-hold land be given to superstitious uses and the same cometh unto the King by the Statute That the Copyhold is destroyed and the Uses shall be accompted void But it was resolved That in such Case by the Statute which giveth this Land so given to superstitious uses to the King that the King hath not thereby gained the Freehold of the Copyhold but that the same remaineth in the Lord of the Mannor Mich. 11. Jacobi in the Common-Pleas 324. JUCKS Sir CHARLS CAVENDISH's Case A Parson sued for the substraction of Predial Tythes upon the Statute of 2 E. 6. in the Spiritual Court The Defendant made his suggestion That for such a Farm upon which the Tythes did arise there was this custom That when the Tythes of the Lands were set forth that the Owners of the said Lands had used time out of mind to take back thirty sheafs of the Tythe-corn and shewed that he was the Owner of the said Farm and that according to the said custom after the Tythes were set forth that he did take back thirty sheafs thereof and thereupon prayed a Prohibition And in this Case it was said by the Court That it ought to be averred that the Farm was a great Farm for otherwise it should be the impoverishing of the Church and would take away a great part of the profit of the Parson
â—uaere whether it be a good Plea because it doth amount to the general issue of Not guilty Curia avisare vult And v. Tompsons Case 4 Jac. in the Kings Bench It was adjudged that it was no good Plea Hill 6 Jacobi in the Common Pleas. 370. PAGINTON and HUET'S Case IN an Ejectione Firme the Case was this That the Custome of a Manor in Worcestershire was That if any Copyholder do commit Felony and the same be presented by twelve Homagers That the Tenant should forfeit his â—opyhold And it was presented in the Court of the Mannor by the Homage That Hâ—â—t the Defendant had committed Felony But afterwards at the Asâ—ises he was acquitted And afterwards the Lord seised the Copyhold And it was adjudged by the Court that it was no good Custom because in Judgment of Law before Attaindor it is not Felony The second point was Whether the special Verdict agreeing with the Presentment of the Homage That the party had committed Felony did entitle the Lord to the Copyhold notwithstanding his Acquital Quaere For it was not resolved Mich. 7 Iacobi in the Common Pleas. 371. THe Custom of a Mannor was That the Heirs which claimed Copy-hold by Discent ought to come at the first second or third Court upon Proclamations made and take up their Estates or else that they should forfeit them And a Tenant of the Mannor having Issue inheritable beyond the Seas dyed The Proclamations passed and the Issue did not return in twenty years But at his coming over he required the Lord to admit him to the Copyhold and proffered to pay the Lord his Fine And the Lord who had seised the Copyhold for a Forfeiture refused to admit him And it was adjudged by the whole Court That it was no Forfeiture because that the Heir was beyond the Seas at the time of the Proclamations and also because the Lord was at no prejudice because he received the profits of the Lands in the mean time Mich. 14 Iacobi in the Kings Bench. 372. A Copyholder in Fee did surrender his Copyhold unto the use of another and his heirs which surrender was into the hands of two Tenants according to the custome of the Mannor to be presented at the next Court. And no Court was holden for the Mannor by the space of thirty years within which time the Surrenderor Surrenderee and the two Tenants all dyed The heir of the Surrenderor entred and made a Lease for years of the Copyhold according to the Custome of the Mannor And it was adjudged per Curiaâ—â— That the Lease was good Mich. 14 Iacobi in the Common-Pleas 373. FROSWEL and WEICHES Case IT was adjudged That where a Copyholder doth surrender into the hands of Copy-Tenants That before Presentment the Heir of the Surrenderor may take the profits of the Lands against the Surrenderee For no person can have a Copyhold but by admittance of the Lord. As if a man maketh Livery within the view although it cannot be countermanded yet the Feoffee takes nothing before his entry But it was agreed That if the Lord doth take knowledge of the Surrender and doth accept of the customary Rent as Rent due from the Tenant being admitted that the same shall amount unto an Admittance but otherwise if he accept of it as a duty generally Mich. 5 Iacobi in the Exchequer 374. IT was adjudged in the Exchequer That where the King was Lord of a Mannor and a Copyholder within the said Mannor made a Lease for three lives and made Livery and afterwards the Survivor of the three continued in possession forty years And in that case because that no Livery did appear to be made upon the Endorsment of the Deed although in truth there was Livery made that the same was no forfeiture of which the King should take any advantage And in that case it was cited to be adjudged in Londons case That if a Copy-Tenant doth bargain and sell his Copy-Tenement by Deed indented and enrolled that the same is no forfeiture of the Copyhold of which the Lord can take any advantage And so was it holden in this Case Pasch 14 Iacobi in the Kings Bench 375. FRANKLIN'S Case LAnds were given unto one and to the heirs of his body Habendum unto the Donee unto the use of him his heirs and assignes for ever In this â—ase two points were resolved 1. That the Limitation in the Habendum did not increase or alter the Estate contained in the premisses of the Deed. 2. That Tenant in Tail might stand seised to an use expressed but such use cannot be averred Hill 13 Iacobi in the Chancery 376 WINSCOMB and DUNCHES Case VVInscomb having issue two sons conveyed a Mannor unto his eldest son and to the daughter of Dunch for life for the joynture of the wife the Remainder to the 〈…〉 The son having no issue his Father-in-law Dunch procured him by Deed indented to bargain and sell to him the Manner The Bargâ—ynor being sick who died before enrolment of the Deed within the 〈…〉 Deed â—ot being acknowledged And 〈◊〉 the 〈◊〉 coming to be enrolled the Clark who enrolled the same did proâ—â—â—e Waâ—â—â—nt from the Master of the Rolls who under-â—â—â— upon the Deâ—◠〈◊〉 the Deed be enrolled upon Affidavit made of the delivery of the Deed by one of the Witnesses to the same And afterwards the Deed was eâ—â—â—â—d within the six moneths And the opinion of the Court wasâ— That 〈◊〉 Conveyance was a good Conveyance in Law And therefore the younger brother exhibited his Bill in Chanchery pretending the Conveyance to be made by practice without any Consideration Mich. 15 Iacobi in the Kings Bench. 377 LUDLOW and STACIâ—S Case A Man bargained and sold Land by Deed indented bearing date 11 Junii 1 Jacobi Afterwards 12 Junii The same year Common was granted â—nto the Bargainee for all manner of Cattell commonable upon the Land 15 Junii theâ— Deed of Bargain and Sale was enrolled And it was adjudged a good grant of the Common And the Enrolment shall have Relation as to that although for collaterall things it shall not have relation Hill 15 Iacobi in the Kings Bench. 378. NOte that it was held by Dodderidge Justice and Mountagu Chief Justice against the opinion of Haughton Justice That if Lessee for years covenanteth to repair and sustein the houses in as good plight as they were at the time of the Lease made and afterwards the Lessee assigneth over his Term and the Lessor his Reversion That the Assignee of the Reversion shall maintain an Action of Covenant for the breach of the Covenants against the first Lessee Hill 15 Jacobi in the Common-Pleas 379. SMITH and STAFFORD'S Case A Man promised a Woman That if she would marry with him that if he dyed and she did survive him that he would leave unto her 100â— They entermarried and then the husband dyed not performing his promise The wife sued the Executor of her husband upon the said promise And whether the
them and held that the Custom might be good Mich. 17 Jacobi in the Kings Bench. 400. IN an Evidence in an Ejectione firme for Land in the Countie of Hartford the Case was this A man was married unto a woman and died The wife after 40 weeks and 10 days was delivered with child of a daughter and whether the said daughter should be heir to her Father or should be bastard was the Question and Sir William Padde Knight and Dr Montford Physitians were commanded by the Court to attend and to deliver their opinions in the Case who being upon their Oaths delivered their opinions That such a child might be a lawfull daughter and heir to her Father For as wellas an Antenatus might be heir viz. a child born at the end of 7 months so they said might a Postnatus viz. child born after the 40 weeks although that 40 weeks be the ordinary time And if it be objected that our Saviour Christ was born at 9 months and five days end who had the perfection of Nature To that it may be answered That that was miraeulum amplias And they held that by many Authorities and by their own Experiences a child might be Legitimate although it be born the last day of the 10â—h Month after the conception of it accounting the Months per Menses solares non Lunares Hill 17 Iacobi in the Kings Bench. 401. WEBB and PATERNOSTERS Case A Man gave Licence unto another to set a Cock of Hay upon his Medow and to remove the same in reasonable time and afterwards he who gave the Licence made a Lease of the Medow to the Defendant who put his Cattel into the Medow which did eat the Hay And for that the Paintiffe brought his Action of Trespass And upon Demurrer joyned the Court was of opinion against the Plaintiffe For upon the whole matter it appeared That the said Hay had stood upon the said ground or Medow for 2 years which the Court held to be an unreasonable time Mich. 18 Iacobi in the Kings Bench. 402. BROWN and PELL's Case IN an Ejectione firme upon a special Verdict found the Case was this Browne had issue two Sons and devised his Lands to his youngest Son and his Heirs And if it shall happen his said youngest Son to die without issue living his eldest Son That then his eldest Son should have the Lands to him and his Heirs in as ample manner as the youngest Son had them The youngest Son suffered a Common Recovery and died without issue living the eldest Son The Question was whether the eldest Son or the Recoverer should have the â—ands Montague Haughton and Chamberlain Justices The same is a Fee-simple Conditional and no Estate Tail in the youngest Son Doddridge Justice contrarie Mich. 18. Jacobi in the Kings Bench. 403. POLLYES Case IN an Action of Trespass It was agreed by the Court If 2 Tenants in Common be of Lands upon which Trees are growing and one of them felleth the Trees and layeth them upon his Freehold If the other entreth into the â—and and carrieth them away an Action of Trespasse Quaere clausum fregit lyeth against him because the taking away of the Trees by the first was not wrongfull but that which he might well do by Law And yet the other Tenant in Common might have seized them before they were carried off from the Land But if a man do wrongfully take my Goods as a Horse c. and putteth the same upon his Land I may enter into his Land and seize my Horse again But if he put the Goods into his House in such Case I cannot enter into his House and retake my Goods because every mans House is his Castle into which another man may not enter without special Liâ—ence Hill 19 Iacobi in the Kings Bench. 404. THe Case was That two Tenants in Common of Lands made a Lease thereof for years rendring Rent and then one of them died And the Question was who should have the Rent And if the Executor of him who died and the other might joyn in an Action for the Rent And as this Case was The opinion of the whole Court was That the Executor and the other might joyn in one Action for the Rent or sever in Action at their pleasures But if the Lease had been made for life rendring Rent The Court was cleer of opinion that they ought to sever in Actions Trin. 20 Jacobi in the Kings Bench. 405. A Man was bounden in a Bond by the name of Edmond and his true name was Edward And an Action of Debt was brought against the Executors of Edmond upon the said Bond who demanded Oyer of the Bond and then pleaded that it was not the Deed of their Testator and issue being thereupon joyned It was found by Inquest in London to be his Deed viz. the Deed of Edmond And it was moved in Arrest of Judgment Quod querens nihil caperet per Billam and so it was resolved and adjudged by the Court Doddridge only being absent And a Case was vouched by Henage Finch Recorder of London to prove this case That it was so adjudged in a Case of Writ of ErError brought in the Exchequer-Chamber in which Case the party himself upon such a Misnosmer and after a Verdict and Judgment given in the same Case did reverse the Judgment for this Error Mich. 14 Iacobi in the Kings Bench. 406. VESEY's Case VVIlliam Vesey was indicted for erecting of a Dove-house And Serjeant Harvey moved That the Indictment was insufficient the words were That the Defendant erexit Columbare vi armis ad commune nocumentum c. and that he was not Dominus Manerii nes Rector Ecclesiae And the Indictment was quashed because it was not contained in the Indictment that there were Doves in the Dove-cote For the meer erecting of a Dove-cote if there be no Doves kept in it it is no Nusans as it was holden by the Justices Mich. 15 Iacobi in the Kings Bench. 407 Sir WILLIAM BRONKER's Case SIR William Bronker brought an Action upon the Case for slanderous words And he shewed in his Declaration how that he was a Knight and one of the Gentlemen of His Majesties Privy-Chamber And that the Defendant spake of him these scandalous words viz. Sir William Bronker is a Cosening Knave and lives by Cosenage Which was found for the Plaintiffe In arrest of Judgment it was moved that the words were not actionable And so it was adjudged per Curiam Pasch 21 Iacobi in the Kings Bench. 408. YATE and ALEXANDER's Case YAte brought an action upon the Case against Alexander Attorney of the Kings Bench and declared That the Plaintiffe in an action of Debt brought against Alexander the Defendant who was Executor to his Father had Judgment to recover against him as Executor and that he sued forth a Fieri facias to the Sheriffe to have Execution and that before the Sheriffe could come to levy the debt and serve the
a Capias lay upon a force although it did not lie in case of Debt Agreement c. The King is Parens Legum because the Laws flowed from him he is Maritus Legum For the Law is as it were under Covert Baron he is Tutor Legum For he is to direct the Laws and they desire aid of him And he said that all the Land of the Kings Debtor are liable to his Debt The word Debitor is nomen equivocum and he is a Debtor who is any ways chargeable for Debt Damages Dutie Rent behind c. The Law amplifies evry thing which is for the Kings benefit or made for the King If the King releaseth all his Debts he releases only debts by Recognizance Judgment Obligation Specialtie or Contract Every thing for the benefit of the King shall be taken largely as every thing against the King shall be taken strictly and the reason why they shall be taken for his benefit is because the King cannot so nearly look to his particular because he 〈◊〉 intended to consider ardua regni pro bono publico The Prerogative Laws is not the Exchequer Law but is the Law of the Realm for the King as the Common Law is the Law of the Realm for the Subject The Kings Bench is a Court for the Pleas of the Crown The Common Pleas is for Pleas betwixt Subject and Subject and the Exchequer is the proper Court for the Kings Revenues 13. E. 4. 6. If the King hath a Rent-charge he by his Prerogative may distrein in any the Lands of the Tenant besides in the Lands charged with the Rent 44. E. 3. 15. although that the partie purchaseth the Lands after the Grant made to the King but then it is not for a Rent but as for a dutie to the King And the King in such case may take the Body Lands and Goods in Execution See the Lord Norths Case Dyer 161. where a man became Debtor to the King upon a simple Contract N. When he was Chancellor of the Augmentation received a Warrant from the Privy Councel testifying the pleasure of King E. 6. That whereas he had sold to R. c. That the said Chancellor should take Order and see the delivery of c. and should take Bond and Sureties for the King for the payment of the money By force of which Warrant he sent one T. his Clark to take a Bond of W. for the payment of the money and he took Bond for the King accordingly and brought the same to the Chancellor his Master and delivered the same to him to the Kings use and presently after he deliverd the same back to T. to deliver over to the Clark of the Court who had the charge of the keeping of all the Kings Bonds and Specialties And when T. had received the same back he practised with R. and W. to deliver them the Bond to be cancelled and so it was done and cancelled And it was holden in that Case because that the said Bond was once in the power and possession of N. that he was chargeable with the Debt But the Queen required the Debt of R. and W. who were able to satisfie the Queen for the same In Mildmay's Case cited before there it was holden That the Queen might take her Remedy either against the Parties who gave the insufficient Warrant or against Mildmay himself at her Election So a man he said shall be lyable for damages to the King for that is taken to be within the word Debita In Porters Case cited before there was neither Fraud Covin nor Negligence and yet the persons who presented Porter to the King to hold the Office were chargeable for his negligence whom they preferred to be Master of the Mint But in that Case The Bodie and goods of Porter were delivered to his Sureties as in Execution to repay them the monie which the King had levied of them These Cases prove that the word Debitor is taken in a large sence That the King shall have for the Debts due to him the Bodie Goods and Lands in Execution The word Goods doth extend to whatsoever he hath 11. H. 7. 26. The King shall have the Debt which is due to his Debtor upon a simple Contract and therein the Debtor of the Debtor shall not wage his Law For after you say that you sue for the King it is the Kings Debt and the King if he please may have Evecution of it An Ejectione firme was brought in the Exchequer by Garraway against R. T. upon an Ejectment of Lands in Wales and it was maintainable in the Exchequer as well as a Suit shall be maintainable here for an Intrusion upon Lands in Wales upon the King himself and the King shall have Execution of the thing and recover Damages as he shall in a Quo minus in satisfaction of a Debt which is due by his Debtor to the King 8. H. 5. 10. There the Kings Debtor could not have Quo minus in the Exchequer The Case there was That a man Indebted to the King was made Executor and by a Quo minus sued one in the Exchequer who was indebted unto his Testator upon a simple Contract as for his proper debt and the Quo minus would not lie because the King in that Case could not sue forth Execution and every Quo minus is the Kings Suit and is in the name of the King 38. Ass 20. A Prior Alien was arrear in Rent to the King The Prior brought a Quo minus in the Exchequer against a Parson for detaining of Tythes here is a variance of the Law and the Court for the Right of Tythes ought to be determined by the Ecclesiastical Law and it was found by Verdict for the Prior. A Serjeant moved That the Court had not jurisdiction of the Cause To whom it was answered that they had and ought to have Jurisdiction of it For that when a thing may turn to the advantage of the King and hasten his business that Court had Jurisdiction of it and divers times the said Court did hold jurisdiction in the like Case and thereupon issue was joyned there and the Reporter made a mirum of it But it seems the Reporter did not understand the Kings Prerogative For it is true That such Suit for Tythes doth not fall into the Jurisdiction of the Kings Bench or Common Pleas but in the Exchequer it is otherwise And if the Suit be by Quo minus it is the Kings Suit At a common persons Suit the Officer cannot break the house and enter but at the Kings Suit he may And a common person cannot enter into a Liberty but the King may if it be a common Liberty But for the most part when the King granteth any Liberty there is a clause of Exception in the Grant That when it shall turn to the prejudice of the King as it may do in a special Case there the King may enter the Liberty and a house is a Common Liberty and the
Judgement was affirmed for by intendment the Judgment was given upon the first Original which bore date before the Iudgment Another Error was assigned because the Plea was That such a one was seised of the Castle and Mannor of Mulgrave predictis in the plural number I answer that there is not any colour for that Error for the word predictis doth shew that the Mannor and Castle are not one and the same thing So upon the whole matter I pray that the Iudgment given in the Court of Pleas may be affirmed Sir Henry Yelverton argued for the Lord Sheffield that the Iudgment might be reversed There are three things considerable in the Case First If any right of the ancient estate tail was in Francis Bigot who was attainted at the time of his Attainder Secondly admit that there was an ancient right if it might be forfeited being a right coupled with a Possession and not a right in gross Thirdly Whether such a Possession discend to Francis Bigot that he shall be remitted and if this Remitter be not overreached by the Office First If by the Feoffment of Francis Bigot 21. H. 8. when he was Cestuy que use and by the Livery the right of the ancient entail be destroyed And I conceive it is not but that the same continues and is not gone by the Livery and Seisin made There is a difference when Cestuy que use makes a Feoffment before the Statute of 1 R 3. and when Cestuy que use makes a Feoffment after the said statute of 1 R 3 For before the statute hee gives away all Com 352. but after the statute of R. 3. Cestuy que use by his Feoffment gives away no Right In 3 H. 7 13. is our very case almost For there the Tenant in Tail made a Feoffment unto the use of his Will so in our Case and thereby did declare that it should be for the payment of his debts and afterwards to the use of himself and the heirs of his body and died the heir entred before the debts paid but in our Case he entred after the debts paid there it is said that the Feoffment is made as by Cestuy que use at the Common Law for his entrie was not lawfull before the debts paid But when Francis Bigot made a Feoffment 21 H. 8. he was Cestuy que use in Fee and then is the Right of the Estate tail saved by the Statute of 1. R. 3. And by the Statute of 1. R. 3. he gives the Land as Servant and not as Owner of the Land and so gives nothing but a possession and no Right 5 H. 7. 5. Cestuy que use since the Statute of 1 R. 3. is but as a Servant or as an Executor to make a Feoffment And if an Executor maketh a Feoffment by force of the Will of the Testator he passeth nothing of his own Right but only as an Executor or Servant 9 H. 7. 26. proves that Cestuy que use since the Statute of 1 R. 3 hath but only an Authority to make a Feoffment For Cestuy que use cannot make a Letter of Attorney to make Livery for him for he hath but a bare Authority which cannot be transferred to another Cestuy que use hath a Rent out of Land and by force of the Statute of 1 R. 3. he maketh a Feoffment of the Land yet the Rent doth remain to him for he giveth but a bare possession So in our Case the right of the Estate Tail doth remain in Francis Bigot notwithstanding his Feoffment as Cestuy que use by the Statute of 1 R. 3. If Cestuy que use by force of the Statute of 1 R. 3. maketh a Feoffment without Warranty the Vouchee shall not Vouch by force of that Warranty For as Fitzherbert saith Cestuy que use had no possession before the Statute of 27. H. 8. Cap. 10. 27 H. 8. 23. If Feoffees to Use make a Letter of Attorney to Cestuy que use to make a Feoffment he giveth nothing but as a Servant The Consequent of this Point is That the right of the old Estate Tail was in Francis Bigot at the time of his Attainder and was not gone by the Feoffment made 21 H. 8. The second Point is Whether a right mixt with a possession of Francis Bigot might be forfeited by the Statutes of 26. H. 8. and the private Act of 31. H. 8. The Statute of 31. H. 8. doth not save this Right no more then the Statute of 26. H. 8. For they are all one in words I say that he hath such a right as may be lost and forfeited by the words of the Statute of 26. H. 8. Cap. 13. For that Statute giveth three things First It gives the Forfeiture of Lands and not of Estates Secondly How long doth that Statute give the lands to the King For ever viz. to the King his Heirs and Successors Thirdly It gives the lands of any Estate of Inheritance in Use or Possession by any Right Title or means This Estate Tail is an Estate of Inheritance which he hath by the Right by the Title and by the means of coming to the Right it is forfeited These two Statutes were made for the punishment of the Child For the Common Law was strict enough against the Father viz. he who committed the Treason And shall the same Law which was made to punish the Child be undermined to help the Child The ancient Right shall be displaced from the Land rather then it shall be taken from the Crown which is to remain to the Crown for ever And this Statute of 26 H. 8. was made pro bonoâ— publico and it was the best Law that ever was to preserve the King and his Successors from Treason for it is as it were a hedg about the King For before this Statute Tenant in Tail had no regard to commit Treason For he forfeited his Lands but during his own life and then the Lands went to the issue in Tail But this Statute doth punish the Child for the Fathers offence and so maketh men more careful not to offend least their posterity may beg I take two grounds which are frequent in our Law First That the King is favoured in the Exposition of any Statute Com. 239 240. The second That upon the construction of any Statute nothing shall be taken by equity against the King Com. 233 234. Here in this Case although the Right were not in possession yet it was mixed with the possession from Anno 13. E. 1. untill 26. H. 8. Tenant in Tail feared not to commit Treason For the Statute of West 2. did preserve the Estate Tail so as the Father could not prejudice his issue per factum suum And therefore the Commonwealth considering that a wicked man did not care what became of himself so as his issue might be safe provided this Statute of 26. H. 8. Cap. 13. although the Statute of 16. R. 2. Cap. 5. which giveth the Premunire doth Enact that all Lands and
Tenements of one attainted in a Premunire shall be forfeited to the King Yet Tenant in Tail in such Case did not forfeit his Lands C. 11. part 63. b. as the Statute of West 2. Cap. 1. saith in particular words That Tenant in Tail shall not prejudice his issue Therefore the Statute of 26. H. 8. in particular words saith That Tenant in Tail shall forfeit his Lands for Treason The Right of Francis Bigot is not a right in gross but a Right mixed with a possession The Statute of West 2. Cap. 1. brought with it many mischiefs For by that Statute the Ancestor being Tenant in Tail could not redeem himself out of prison nor help his wife nor his younger children and that mischief continued untill 12. E. 4. Taltaram's Case and then the Judges found a means to avoid those mischiefs by a common Recovery and this Invention of a common Recovery was a great help to the Subject Then came the Statute of 32. H. 8. Cap. 36. which Enacted That Fines levied by Tenant in Tail should be a good barr to the issue of any Estate any way entailed If the Son issue in tail levieth a Fine in the life of his Father who is Tenant in tail it shall be a barr to him who levieth the Fine and to his issues And both these viz. the Common Recovery and the said Statute did help the Purchaser And shall not this Statute of 26. H. 8. help the King The Statute of 26. H. 8. Cap. 13. hath not any strength against the Ancestor but against the Child For the Construction of Statutes I take three Rules First When a Case hapneth which is not within the Letter then it is within the intent and equity of the Statute Com. 366. 464. Secondly All things which may be taken within the mischief of the Statute shall be taken within the Equity of the Statute 4. H. 6. 26. per Martin Thirdly When any thing is provided for by a Statute every thing within the same mischief is within the same Statute 14. H. 7. 13. The Estate tail of Francisâ— Bigot and Katharine his wife is forfeited by the Statute of 26 H. 8. There is a difference when the Statute doth fix the forfeiture upon the person As where it is enacted that J. S. shall forfeit his lands which he had at the time of his Attaindor The Judges ought expound that Statute only to J. S. But the Statute of 26 H. 8. doth not fix the forfeiture upon the person but upon the land it self And Exposition of Statutes ought to extend to all the mischiefs 8 Eliz. Sir Ralph Sadler's Case in B. R. where an Act of Parliament did enact That all the lands of Sadler should be forfeited to the King of whomsoever they were holden Sadler held some lands of the King in that case the King had that land by Escheat by the Common-Law and not by the said Statute Com. 563 The Law shall say that all the rights of the tail are joyned together to strengthen the estate of the King Tenant in tail before the Statute of 1 E. 6. cap. 14. of Chauntries gave lands to superstitious uses which were enjoyed five years before the said Statute of 1 E. 6. made Yet it was adjudged that the right of the issue was not saved but that the land was given to the Crown for the issue is excluded by the saving in the said Statute If Tenant in tail give the lands to charitable uses the issue is barred For the saving of the Statute of 39 Eliz. cap. 5. excludes him And he is bound by the Statute of Donis So the Statute of 26 H. 8. cap. 13. and the private Act of 31 H. 8. do save to all but the heirs of the Offenders The third Objection was That Ratcliffe was not excluded by the saving for it was said That the same doth not extend but to that which is forfeited by his Ancestors body And here Ratcliffe had but a Right and that was saved And the Statute doth not give Rights I answer first The Statute of 26 H. 8. is not to be expounded by the letter for then nothing should be forfeited but that only which he had in possession and use Tenant in tail is disseised and attainted for treason By the words of the said Statute of 26 H. 8. he forfeits nothing yet the issue in tail shall forfeit the lands for the issue in tail hath a right of Entrie which may be forfeited 6 H. 7. 9. A right of Entrie may escheat and then it may be forfeited Secondly The Statute is not to be construed to the possession but if he hath a mixt right with the possession it is forfeited but a right in grosse is not forfeited Tenant in tail of a Rent or Seignorie purchaseth the Tenancie or the Land out of which the Rent is issuing and is attainted He shall forfeit the Seignorie and Rent or the Land for the King shall have the Land for ever And then the Seignorie or Rent shall be discharged for otherwise the King should not have the Land for ever For the King cannot hold of any Lord a Seignorie 11 H. 7. 12. The heir of Tenant in tail shall be in Ward for a Meanaltie descended unto him the Meanaltie not being in esse and yet it shall be said to be in esse because of the King C. 3 part 30. Cars Case Although the Rent was extinguished yet as to the King it shall be in esse The difference is betwixt a Right clothed with a possession and a right in grosse viz. where the Right is severed from the possession there it is in grosse For there the Right lieth only in Action and therefore neither by the Statute of 26 H. 8. nor by the private Act of 31 H. 8. such a Right is not forfeited C. 3. part 2. C. 10. part 47 48. Right of Action by the Common-Law nor by Statute-Law shall escheat and therefore it is not forfeited For no Right of Action is forfeitable because the right is in one and the possession in another Perkins 19. A Right per se cannot be charged 27 H. 8. 20. by Mountague A man cannot give a Right by a Fine unless it be to him who hath the possession C. 10. part Lampits Case Sever the possibility from the right and it doth not lie in grant or forfeiture but unite them as they are in our Case and then the Right may be granted or forfeited for that Right clothed with a possession may be forfeited A Right clothed with the possession 1. It tastes of the possession 2. It waits upon the possession 3. It changes the possession The Bishop of Durham hath all Forfeitures for Treason by the Common-Law within his Diocess viz. the Bishoprick of Durham And if Tenant in tail within the Bishoprick commits Treason and dyeth the Issue in tail shall enjoy the land against the Bishop Dyer 289 a. pl. 57. For the Bishop hath not the land for ever but the Issue
but in Francis Bigot which may be regained in due time Dyer 340. there was Scintilla juris as here in our Case 19 H. 8. 7. Where Tenant in tail maketh a Feoffment and the Feoffee levieth a fine and five years pass there it is said that the Issue in tail shall have five years after the death of Tenant in tail who made the Feoffment and the reason is because he is the first to whom the right doth discend This Case was objected against me yet I answer that Tenant in tail in that Case hath right but he cannot claim it by reason of his own Feoffment he cannot say he hath right but another may say he hath right In our Case Francis Bigot cannot say he hath a Right in him but another may say he hath a Right It is like where Tenant in Fee taketh a Lease for years by Deed Indented of his own Lands He during the years cannot say that he hath Fee yet all other may say that he hath the Fee C. 4. part 127. The King shall avoid the Feoffment for the benefit of a Lunatique which Feoffment the Lunatique had made and shall not the King avoid a Feoffment which a Lunatique hath made for his own benefit viz for the benefit of the King himself I conceive that he shall Secondly Admit the right be in the person viz. in Francis Bigot yet they object that it is a right of Action and so not forfeited If this right be in the person at the time of the Attainder it shall be forfeited if it be not in his person but in Nubibus yet it shall be forfeited Tenant in tail makes a Feoffment unto the use of himself and his wife in tail if the old right of entail rest or not in his person it is forfeited to the King 34 Eliz. this very Point was then adjudged Where Tenant in tail before the Statute of 27 H. 8. of Uses made a Feoffment unto the use of himself and his wife in tail It was resolved upon mature deliberation by all the Judges of England that the old Estate tail was in such case forfeited for Treason Set this Judgment aside yet it rests upon the Statute of 26 H. 8. A general Act for forfeiture for Treason and the particular Act of 31 H. 8. which was made for the particular Attaindor of Francis Bigot I will argue argue only upon the Statute 26 H. 8. which hath three clauses First to take away Sanctuary Secondly to provide that no Treason be committed and the Offender punished The third which clause I am to deal with which giveth the forfeiture of Lands of Inheritance c These three clauses do depend upon the Preamble It was high time to make this Statute For when H. 8. excluded the Pope he was to stand upon his guard And that year of 26 H. 8. there were five several Insurrections against the King therefore it was great wisdom to bridle such persons King Ed. 6. and Queen Mary repealed divers Statutes for Treason and Felony yet left this Statute of 26 H. 8. to stand in force Anno 5 E. 6. cap. 5. this Statute of 26 H. 8. somewhat too strict was in part repealed viz. That the Church lands should not be forfeited for the Treason of the Parson This third branch doth insist upon a Purview aâ—d a Saving and both agree with the Preamble The Purview is ample Every Offender and Offenders of any manner of High Treason shall forfeit and lose c. I observe these two words in the Statute shall Forfeit those things which are forfeitable and Lose those things which are not forfeitable But it shall be lost that the heir of the Offender shall not find it shall Forfeit and lâ—se to the King his heirs and successors for ever so it is a perpetual forfeiture shall forfeit all his Lands which includes Use Estate and Right by any right title or means So you have Estate Right Title and Use Here Francis Bigot shal forfeit the Castle and Mannor of Mulgrave unto the King his heirs and Successors and he must forfeit the Land Right Title and Use otherwise it cannot be to the King for ever and what is saved to strangers all shall be saved and what will you not save to the Offender and his heirs all his Lands Right c. as was saved to strangers It was objected that it was not an Act of Assurance but an Act of Forfeiture which is not so strong as an Act of Assurance I do not doubt of the difference but how much will that difference make to this Case doth the Statute goe by way of Escheat it doth not but in case of Petty Treason Land shall Escheat but when the Statute of 25 E. 3. speaketh of High Treason the words of the said Statute are Shall forfeit the Escheat to the King But is the Right devided from the King Truely no the word Forfeit take it in nomine or in natura is as strong a word as any word of Assurance Alienare in the Statute of West 2. cap. 1. Non habeant illi potestatem alienandi so non habent illi potestatem forisfaciendi is in the nature of a Gift Com. 260. Forfeiture is a gift in Law Et fortior est dispositio legis quam hominis and so as strong as any assurance of the partie If a Statute give the Land to the King then there needeth not any Office 27 H. 8. Br. Office Com. 486. The Right vests before Office It was objected that the statute of 26 H 8. doth not extend to a right of Action but to a right of Entrie The purpose of this Act of 26 H. 8. is not to attaint any particular person as the Statute of 31 H. 8. was made for the particular Attaindor of Francis Bigot 5 E. 4. 7. Cestuy que use at the Common Law did not forfeit for Felony or Treason but by this Act of 26. H. 8. Cestuy que use shall forfeit both Use and Lands out of the hands of the Feoffees 4 E. 3. 47. 4 Ass 4. The husband seised in the right of his wife at the Common Law for Treason shall not forfeit but the profits of the lands of his wife during his life and not the Freehold it self but by this Act of 26 H. 8. the Freehold it self is forfeited 18 Eliz. in the Common Pleas Wyats Case C. 10. Lib. Entries 300. And if the Statute of 26 H. 8. had had no saving all had been forfeited from the wife 7 H. 4. 32. there it is no forfeiture yet by this Statute it is a forfeiture A right of Action shall not Escheat 44 E 3. 44 Entre Cong 38 C. 3 part the Marquess of Winchesters Case and Bowtiâ—s Case and C 7. part Inglefieldâ—s Case A right of Action per se shall not be forfeited by the Rules of the Common Law nor by any Statute can a right of Action be transferred to another but by the Common Law a right of Action may
then the tender is good But if he be not there but at another place the notice is sufficient Dodderidge The Law requires certainty in a Declaration and the matter cannot be taken by intendment so we ought to have a certainty set forth otherwise no certain Judgment can be given It was adjourned for Dodderidge and Haughton Justices were against Ley Chief Justice But as I have heard the Case was afterwards adjudged for the Plaintiffe There quaere the Record of the Judgment Trin. 21 Iacobi in the Kings Bench. 425. A Man made a Lease for life and covenanted for him and his heirs That he would save the Lessee harmless from any claiming by from or under him The Lessor dyed and his wife brought a Writ of Dower against the Lessee and recovered and the Lessee brought an Action of Covenant against the heir And it was adjudged against the heir because the wife claimed under her husband who was the Lessor But if the woman had been mother of the Lessor who demanded Dower the Action would not have layen against the heir because she did not claim by from or under the Lessor And so it was adjudged v. 11. H. 7. 7. b. Trin. 21 Iacobi in the Kings Bench. 426. SNELL And BENNET'S Case A Parson did contract with A. his Executors and Assigns That for ten shillings paid to him every year by A. his Executors and Assigns that he his Executors or Assigns should be quit from the payment of Tythes for such Lands during his life viz. the life of the Parson A. paid unto the Parson ten shillings which the Parson accepted of And made B. an Enfant his Executor and dyed The mother of the Enfant took Letters of Administration durante minori aetate of the Enfant and made a Lease at Will of the Lands The Parson libelled in the Ecclesiastical Court for Tythes of the same Lands against the Tenant at Will who thereupon moved for a Prohibition Dodderidge During the life of the Parson the Contract is a foot but the Assignee cannot sue the Parson upon this Contract yet he may have a Prohibition to stay the suit in the Ecclesiastical Court and put the Parson to his right remedy and that is to sue here This agreement is not by Deed and so no Lease of the Tythes The Parson shall have his remedy against the Executor for the ten shillings but not against the Tenant at Will and the Executor hath his remedy against the Tenant at Will Crook 21 H. 6. A Lease of Tythes without Deed is good for one but not for more years v. 16 H. 7. And afterwards a Prohibition was granted Trin. 16 Jacobi in the Kings Bench. 427. PHILPOT and FEILDER'S Case THe Parties are at issue in the Chancery and a Venire facias is awarded out of the Chancery to try the issue and the Venire facias was Quod venire facias coram c. duodecim liberos legales homines de vicineto de c. quorum quilibet habeat quatuor lib. terrae tenementorum vel reddituum per annum ad minus per quos rei veritas melius sciri poterit c. And it was moved in arrest of Judgment That the Venire facias is not well awarded for it ought to be Quorum quilibet habeat quadraginta solidos terrae tentorum vel reddit per an ad minus according to the Statute of 35 H. 8. cap. 6. which appoints that every one of the Jurors ought by Law to expend forty shillings per annum of Freehold and it ought not to be quatuor libras terrae c. according to the Statute of 27 Eliz cap. 6. which Statute of Elizabeth doth not speak of the Chancery but only of the Kings Bench Common-Pleas and the Exchequer or before Justices of Assise Before the Statute of 35 H. 8. no certain Land of Jurors was named in the Venire facias but since the Statute of 35 H. 8. it was quadragint solidos untill the said Statute of 27 Eliz. and now it is quatuor libras in the Kings Bench Common-Pleas and Exchequer It was adjourned At another day the Case was moved again That the Venire facias ought to be 40 solidos c. according to the Statute of 35 H. 8. cap. 6. And 10 H. 7. 9. 15 were vouched That if a Statute appoint that the King shall do an act in this form the King ought to do it in the same form and manner So if a Letter of Attorney be to make a Bill in English and the same is made in Latine it is not good although it be the same in form and matter Cook lib Entries 578. Waldrons Case is That in the Chancery the Venire facias was but 40 but that Case was between 35 H. 8. and 27 Eliz. cap 6. Dodderidge and Haughton Justices It is a plain case For the Venire facias ought to be according to 35 H. 8. cap. 6. because the Statute of 27 Eliz. cap. 6. speaks nothing of the Chancery Quod nota Trin. 21 Iacobi in the Kings Bench. 428. HEWET and BYE'S Case IN an Ejectione Firme of a house in Winchester the Ejectment was laid to be of a house which was in australi parte vici Anglice the High-street Ley Chief Justice If it had been ex australi parte vici then the South part had been but a Boundary but here it is well laid Then it was moved That the Venire facias is Duodecim liberos legales homines de Winton and doth not say of any Parish in Winton But notwithstanding it was holden good For Dodderidge Justice said That it is not like unto Arundels Case C. 6. part 14. For there the Offence was laid to be done in paroechiae Sanctae Margaret de Westminster therefore the visne ought to be of the Parish but in this case it being laid generally in Winton it is sufficient that the visne come out of Winton Judgment was given for the Plaintiffe Trin. 21 Iacobi in the Kings Bench. 429 WATERER and MOUNTAGUE'S Case A Man made a Lease for six years and the Lessor covenanted That if he were disposed to lease the said lands after the expiration of the said term of six years that the Lessee should have the refusal of it The Lessee within the six years made a Lease thereof to J. S. for 21 years Dodderidge Haughton and Ley Chief Justice The Covenant is not broken because it is out of the words of the Covenant But Dodderidge said Temp. E. 1. Covenant 29. The Lessee covenanted to leave the houses trees and woods at the end of the term in as good plight as he found them and afterwards the Lessee cut down a tree that in that case the Covenant was broken and the Lessor shall not stay untill the end of the term to bring his action of Covenant because it is apparant that the tree cannot grow again and be in as good plight as it was when he took the Lease Trin. 21
by prescription have used to have and dig clay there The first point is found for the Defendant and the last issue is found against the Defendant and damages are given generally All the question is upon the Declaration Coepit asportavit the clay which implies a propertie and interest in the clay to be to the Plaintiffe It is not said that the clay was carried over the land I conceive that the property of the clay is in issue and the Commoner hath nothing to do with that So damages being given to him for that which doth not belong unto him I hold the Judgment to be Erroneous and that it ought to be reversed Dodderidge The Declaration is well enough and of necessity it cannot be otherwise Here the Plaintiffe challengeth nothing but Common In an Action upon the Case there ought to be injurie and damage which is the consequent upon injurie For an Action upon the Case will not lie for an injurie without damage Here Bullen doth not complain for any thing but the loss of his Common which is the first wrong The second wrong is the digging of the pit in the which his cattel may fall and perish The third wrong is for carrying away of six loads of clay over the Common which is a great detriment to the Common to carrie it either by Carts or otherwise and for these three wrongs he concludes his damages ratione cujus he could not have his Common in as ample manner as before he was used to have it and he doth not conclude any damage for the clay Every one of these injuries doth increase the damages and so it would have been if he had left the clay to lie upon the land by the pit for thereby so much Common would have been lost Here he makes himself title only to the Common and these Acts do increase the damages only 2. E. 4. 7 E. 4. Where one was unlawfully and falsly imprisoned and being imprisoned compelled to levie a Fine or make a Feoffment or other Deed. In an Action of false Imprisonment the Jurie gave damages by reason of his restraint of his Liberty and increased them by reason of the levying of the Fine or making the Feoffment or other Deed which he then made The Jurie found that he is not to have any clay and coepit asportavit doth not alter the Case for that is a special Action of trespass And by three of the Justices against Haughton the Judgment given in the Court of Common Pleas was affirmed Trin. 21 Iacobi in the Kings Bench. 438. CAlthrope Councellor cited this Case to have been adjudged 25 Eliz. The husband seised in the right of his wife of Copyhold Land made a Lease for years and it was holden by the Court then That by the death of the husband the forfeiture of the Copyhold was purged and that the wife should have the land again notwithstanding this forfeiture by the husband by making a Lease for years without Licence And the Court seemed to allow of the said Case to be Law And afterwards this very Term the like Case came in question in this Court betwixt Severn and Smith where in an Ejectione firme a special Verdict found That a Copyholder seised in the right of his wife made a Lease for years and it was a question whether it were a forfeiture of the inheritance of the wife Hitcham Serjeant said it was no forfeiture Dodderidg Justice took this difference Where a Feme Sole is a Copyholder and she takes a husband who makes a lease for years without licence the same is a forfeiture because it is her folly to take such a husband as will forfeit her Land But where a Copyhold is granted to a Feme Covert and the husband maketh a Lease without Licence in such case it is no forfeiture and so in the Case of a Feme Lessee for life at the Common Law against Whitinghams Case C. 8. part 44. It was adjourned Trin. 21 Iacobi in the Kings Bench. 439. NOte It was the opinion of all the Justices and so declared That if the Plaintiffe in an Ejectione firme doth mistake his Declaration That the Defendant in such Case shall have his Costs of the Plaintiffe by reason of his unjust vexation Trin. 21 Iacobi in the Kings Bench. 440. FOur several men were joyntly Indicted for erecting and keeping of four several Inns in Bathe It was moved that the Indictment was insufficient because the offence of the one is not the offence of the other like unto the Case in Dyer 19. Where two joyn in an Action upon the Case for words 't is not good but they ought for to sever in their Actions because the wrong to the one is no wrong to the other Dodderidge Iustice One Indictment may comprehend several offences if they be particularly laid and then it is in Law several Indictments It may be intended that the Inns were lawfull Inns for it is not laid to be ad nocumentum and therefore not punishable but if they be an anoyance and inconvenient for the Inhabitants then the same ought particularly to appear otherwise it is a thing lawfull to erect an Inn. An Action upon the Case lyeth against an Inn-keeper who denies lodging to a Travailer for his money if he hath spare lodging because he hath subjected himself to keep a common Inn. And in an Action upon the Case against an Inn-keeper he needeth not to shew that he hath a Licence to keep the Inn. If an Inn-keeper taketh down his Signe and yet keepeth an Hosterie an Action upon the Case will lie against him if he do deny lodging unto a Travailer for his money but if he taketh down his Signe and giveth over the keeping of an Inn then he is discharged from giving lodging The Indictment in the principal case is not good for want of the words ad Nocumentum Haughton and Ley Iustices argreed Ley If an Indictment be for an Offence which the Court ex Officio ought to take notice to be ad Nocumentum there the Indictment being general ad Nocumentum contra Coronam dignitatem is sufficient without shewing in what it is ad Nocumentum But for Inns it is lawfull for to erect them if it be not ad Nocumentum c. and therefore in such Indictments it ought to be expressed that the erecting of them is ad Nocumentum c. and because in this Case there wants the words ad Nocumentum the Indictment was quashed Vi. The Lord North and Prat's Case before to this purpose Trin. 21 Iacobi in the Kings Bench. 441. BRIDGES and NICHOLS's Case THey were Indicted for the not repairing of such a Bridg and the Indictment was debent solent reparare pontem c. It was moved that the Indictment was insufficient because it is not alledged in the Indictment that the the Bridg was over a Water and no needfull that it be amended Secondly It did not appear in the Indictment that
pay the money there he shall recover damages besides the dutie Here the Action was brought before the request made and so no damage to the Plaintiff and the Judgment was that the Plaintiff recuperet damna predict viz. the damages laid in the Declaration Dodderidge Justice The Judgment ought to be Consideratum est quod Gleede recuperet damna quae sustinuit and not damna predict which are mentioned in the Declaration and then a Writ is awarded to enquire of the damages quae sustinuit The Judgment was reversed per Curiam Mich. 1 Caroli in the Kings Bench. Rot. 189. 455. TAYLOR and HODSKIN's Case IN an Ejectione firme upon a special Verdict it was found That one Moyle was seised of divers Lands in Fee holden in Socage and having issue four daughters viz. A B C D. A. had issue N. and died And afterwards Moyle devised the said Lands unto his wife for life and after her decease then the same equally to be divided amongst his daughters or their heirs Moyle died and afterwards his wife died and Hodskins in the right of B C D. three of the daughters did enter upon the Lands N. the daughter of A. married F. who entred and leased the Lands to the Plaintiff Taylor Whitfield for the Plaintiff The only point is Whether N. the daughter of A. one of the sisters shall have the fourth part of the lands or not by reason of the word Or in the Will It is apparent in our books C. 10. part 76 the Chancellor of Oxfords Case C. 3. part Butler and Bakers Case That Wills shall be construed and taken to be according to the intent of the Devisor And therefore Br. Devise 39. A devise to one to sell to give or do with at his will and pleasure is a Fee-simple And in our Case if N. shall not take a fourth part the word heirs should be of no effect C. 1. part in Shellies Case All the words in a Deed shall take effect without rejecting any of them and if it be so in a Deed à fortiori in a Will which is most commonly made by a sick man who hath not Councell with him to inform or direct him In this Case the three sisters who were living at the time of the Devise took presently by way of remainder and the word heirs was added only to shew the intent of the Devisor That if any of the three sisters had died before his wife that then her heir should take by discent because her mother had taken by purchase And by reason of the word heirs the heir of A. shall take by purchase and the disjunctive word or shall be taken for and as in Mallories Case C. 5. part A reservation of a Rent to an Abbot or his Successors there the word or shall be taken for and reddendo singula singulis Trin. 7. Jacobi in the Common Pleas Arnold was bound in a Bond upon Condition that he suffer his wife to devise Lands of the value of 400l to her son or her daughter and she devised the Lands to her son and her daughter And it was resolved that it was a good performance of the Condition And there the word or was taken for and And there Justice Warburton put this Case If I do devise all my goods in Dale or Sale it shall be a Devise of all my goods in both places and or shall be taken for and. In this Case the word heirs was not added of necessity for the heir of any of the sisters to take by purchase but only to make the heir of A. to take part of the Lands The Court was of opinion that it was stronger for the Plaintiff to have it or in the disjunctive For they said that if it were and then it would give the three sisters the Fee and not give the heir of A. a fourth part but being or there is more colour that she shall take a fourth part by force of the Devise It was adjourned Trin 2 Caroli Rot 913. in the Kings Bench. 456. ASHFIELD and ASHFIELD's Case THe Case was An Enfant Copyholder made a Lease for years by word not warranted by the Custome rendring Rent The Enfant at his full age was admitted to the Copyhold and afterwards accepted of the Rent The question was Whether this Lease and the acception of the Rent should bind or conclude the Enfant Crawley Serjeant argued That it was a void Lease and that the acception should not bar him It is a ground in Law That an Enfant can do no Act by bare contract by word or by writing can do any Act which is a wrong either to himself or unto another person or to his prejudice In this Case if the Lease should be effectual it were a wrong unto a stranger viz. the Lord and a prejudice unto himself to make a forfeiture of the Inheritance If an Enfant commandeth A. to enter into the land of I. S. and afterwards the Enfant entreth upon A. A is the Disseisor and Tenant and the Enfant gaineth nothing So if A entreth to the use of the Enfant and the Enfant afterwards agreeth to it in this Case here is but a bare contract and an agreement will not make an Enfant a Disseisor No more shall he be bound by a bare Deed or matter in writing without Livery 26 H. 8. 2. An Enfant granteth an Advowson and at full age confirmeth it all is void Br. Releases 49. Two Joynt-Tenants one being an Enfant releaseth to his Companion it is a void Release 18 E. 4. 7. An Enfant makes a Lease without reserving Rent or makes a Deed of grant of goods yet he shall maintain Trespass nay though he deliver the goods or Lease with his own hand the same will not excuse the Trespass nor will it perfect the Lease or make the grant of the goods good If the Contract have but a mixture of prejudice to the Enfant it shall be void ◠Jacobi in the Kings Bench Bendloes and Holydaies Case An Obligation made by an Enfant with a Condition to pay so much for his apparel because the Bond was with a penaltie it was adjudged void If Tenant at Will make a Lease for years he was a Disseisor at the Common Law before the Statute of West 2. cap. 25. 12 E. 4 12. Tenant at Will makes a Lease for years 10 E. 4. 18. 3 E. 4. 17. But if an Enfant be Tenant at will and he maketh a Lease he is no Disseisor In our Case if he had made Livery then I confess it had been a defeisible forfeiture and he mignt have been remitted by his entrie upon the Lord. Farrer for the Plaintiff The Lease is not void but voidable 7 E. 4. 6. Brian 18 E. 4. 2. 9 H. 6. 5. An Enfant makes a Lease for years and at full age accepts of the Rent the Lease is good because the Law saith that he hath a recompence Com. 54. A Lease for years the remainder
certain Farme Lands called Estons and that a Fine was levied of Lands in Eslington Eston and Chilford whereas Eston lay in another Parish appell D. Calthrope argued That the Land in Eston did passe by the Fine although the Parish was not named for that the Writ of Covenant is a personall Action and will lie of Lands in a Hamlet or lieu conus 8. E. 4 6. Vide 4. E. 3. 15. 17. Ass 30. 18. E. 3. 36. 47. E. 3. 6. 19. E. 3. Brev. 767. 2. He said That it was good for that the Plea went only to the Writ in abatement but when a Concord is upon it which admits it good it shall not be avoided afterwards 3. He said That a Fine being a common assurance and made by assent of the parties will passe the Lands well enough 7 E. 4. 25. 38. E. 3. 19. And he vouched Pasch 17. Jacobi in the Kings Bench Rot. 140. Monk and Butlers Case Where it was adjudged that a Fine being but an arbitrary assurance would passe Lands in a Lieu conus and so he said it would do in a common recovery And Richardson said That if a Scire facias be brought to execute such a recovery Nul tiel ville ou Hamlet is no plea and the Fine or recovery stands good Vide 44. E. 3. 21. 21 E. 3. 14 Stone And the opinion of the Court was That the Lands did well passe by the Fine Mich. 8. Caroli in the Kings Bench 509 CAWDRY aud TETLEY's Case CAwdry being a Doctor of Physick the Defendant Praemissorum non ignorans to discredit the plaintiff with his Patients as appeared by the Evidence spake these words to the plaintiffe viz. Thou art a drunken Fool and an Asse Thou wert never a Scholer nor ever able to speak like a Scholer The opinions of Jones and Crook Justices were that the words were actionable because they did discredit him in his Profession and hee hath particular losse when by reason of those words others do not come to him And Palmers Case was vouched Where one said of a Lawyer Thou hast no more Law then a Jackanapes that an Action did lie for the words Contrary if he had said No more Wit And William Waldrons Case was also vouched where one said I am a true Subject thy Master is none that the words were actionable Mich. 4. Caroli in the Kings Bench. 510 The King and BAXTER SIMMON's Case THE Case was this Tenant in tail the Remainder in taile the Remainder in Fee to Tenant in tail in possession Tenant in tail in Remainder by Deed enrolled reciting that he had an estate tail in Remainder Granted his Remainder and all his estate and right unto the King and his Heirs Proviso that if he pay ten shillings at the Receipt of the Exchequer that then the Grant shall be void Tenant in tail in possession suffers a common Recovery and afterwards deviseth the Lands to I. S. and dieth without Issue 18. Jacobi Afterwards 21. Jac. he in the Remainder in tail dieth without issue but no seisure is made nor Offence found that the lands were in the Kings hands Noy who argued for the King The first Point is When Tenant in taile recites his estate and grants all his estate and right to the King and his Heirs what estate the King hath And if by the death of Tenant in tail without issue the estate of the King be so absolutly determined that the Kings possession needs not to be removed by Amoveas manum And he argued That when the Lands are once in the King that they cannot be out of him again but by matter of Record 8. E. 3. 12. Com. 558. And a bare entry upon the King doth not put the King out of possession of that which was once in him And so was it adjudged 34. Eliz. in the Lord Paget's Case as Walter chief Baron said And Noy took this difference 8. H. 5. Traverse 47. and 8. E. 2. Traverse 48. If a particular estate doth determine before that the King seise there the King cannot afterwards seise the Lands But if the King hath once the Lands in his hands or possession there they cannot be devested out of him but by matter of Record So F. Nat. Br. 254. If a man be seised of Lands in the right of his Wife and be outlawed for Felonie for which the Lands come into the Kings hands and afterwards hee who is outlawed dieth there a Writ of Diem clausit extremum shall issue forth which proveth That by the death of the Husband the Lands are not immediately out of the King and setled in the Wife againe 22. E. 4. Fitz. Petition 9. Tenant in taile is attainted of Treason and the Lands seised into the Kings hands and afterwards Tenant in taile dieth without Issue he in the Remainder is put to his Petition which proveth that the Lands are not presently after the death of Tenant in taile without issue out of the King But he agreed the Cases If Tenant in taile acknowledgeth a Statute or granteth a Rent charge and dieth that the Rent is gone and determined by his death as it is agreed in 14. Assisarum The second point argued by Noy was That although that there was not any seizure or Offence found which entituled the King Yet the Deed enrolled in the Chancery which is returned in this Court did make sufficient title for the King as 8. E. 3. p. 3. is The Judges of Courts ought to Judge upon the Records of the same Courts In 8. H. 7. 11. a Bayliff shewed That a Lease was made to T. his Master for life the Remainder to the King in Fee and prayed in Ayd of the King And the Plaintiff in Chancery prayed a Procedendo And it was ruled That a Procedendo should not be granted without examination of the Kings title Thirdly he said That in this case he who will have the Lands out of the possession of the King ought to shew forth his title and in the principall case it doth not appear that the Defendant had any title Vide 10. H. 7. 13. Athowe Serjeant argued for the Defendant he said That in this case the King had an estate but for the life of Tenant in tail And therefore he said That If Tenant in tail grant totum statum suum that an estate but for his own life passeth as Litt. is 145. and 13. H. 7. 10. acc So If Tenant for life the remainder in taile bee and he in the Remainder releaseth to Tenant for life in possession nothing passeth but for the life of Tenant in tail 19. H. 6. 60. If Tenant in tail be attainted of Treason or Felonie and Offence is found and the King seiseth the lands he hath an estate but for the life of Tenant in tail And he cited 35. Eliz. C. 2 part 52. Blithmans case Where Tenant in tail Covenanted to stand seized to the use of himself for his own life and after his death to the use
to Thomas Spence and his Wife and the Survivor the Rent of seventeen Pounds yearly and every year during the terme Proviso that if the Rent be arrere by forty daies that Thomas and his Wife or the Survivor of them should enter Thomas Spence died his Administrator did demand the Rent and being denied entred for the Condition broken Calthrope argued That the reservation to the Wife was void because she had not any interest in the Land and also never sealed the Indenture of Assignment but was as a stranger to the Deed and so he said that the Wife could not enter for the condition broken nor make any demand of the Rent The 2l l Point was Admitting that the wife could not enter nor demand the Rent Whether the Administrator of the Husband might demand it and enter for the condition broken because the words are Yeilding and paying to Thomas Spence and Jane his Wife and the Survivor of them during the term and no words of Executors or Assigns are in the Case and he conceived the Administrator could not and so he said it had been resolved in one Butcher and Richmonds Case about 6. Jacobi Banks contrary and he said It was a good Rent and well demanded and the reservation is good during the Term to the Husband and Wife and although the word Reddendo doth not create a rent to the Wife because the Husband cannot give to the Wife yet the Solvendo shall gain a good rent to the Wife during the life of the Wife and the reservation shall be a good reservation to him and his Administrators during the Survivor Vide C. 5. part Goodales Case 38. E. 3. 33. 46. E. 3. 18. and admitting that the rent shall be paid to the Wife yet the condition shall go to the Administrator 2. The word Solvendo makes the Rent good to the Wife and amounts to an agreement of the Lessee to pay the Rent to them and the Survivor of them and that which cannot be good by way of reservation yet is good by way of grant and agreement and many times words of reservation or preception shall enure by way of grant Vide 10 E. 3 500. 10. Ass 40. 8. H. 4. 19. Richard Colingbrooks Case 41. E. 3. 15. 13. E. 2 Feasts and Fasts 108. Richardson Justice The Reservation being during the term is good and shall go to the Administrator Jones Justice contrary It is good only during the life of the Lessor and so was it adjudged in Edwyn and Wottons Case 5. Jacobi Crook Justice accorded The Administrator hath no title and the Wife is no party to the Deed and therefore the Rent is gone by the death of the Husband If it had been durante termino generally perhaps it had been good but durante termino praedicto to him and his Wife it ceaseth by his death And the words durante termino couple it to him and his Wife and the Survivor and it cannot be good to the Wife who is no party nor sealed the Deed neither can it inure to the Wife by way of Grant And the words Reddendo and Solvendo are Synonima and the Administrator is no Assignee of the Survivor for she cannot assign because she hath no right in the Rent Barkley Justice The intention of the parties was That it should be a continuing Rent and Judges are to make such Exposition of Deeds as that the meaning of the parties may take effect I do agree That the Wife could not have the Rent neither by way of Reservation nor by way of Grant if she were not a party to the Indenture but here she is a party to the Deed for it is by Deed indented made by the husband and wife and the husband hath set his Seal to it And 2. The Solvendo doth work by way of Grant by the intent of the parties The Reddendo shall go and relate as to the husband and the Solvendo to the wife and he agreed the Case 33. H. 8. Br. Cases because there expressum facit cessare tacitum but in case of a Lease for years the words Reserving Rent to him shall go to the Executor who represents the person of the Testator and 27. El. it was adjudged in Constables Case and Littleton agrees with it That the Executor shall be possessed and is possessed in the right of his Testator And therefore if an alien be made an Executor in an Action brought by him the Tryal shall not be per medâ—â—tatem lâ—nguae And this Case is the stronger because the Reservation is during the Term. And C. 3. part in Malleries Case That the Law shall make such a construction Upon reservation of Rent upon a Lease as may stand with the intent and meaning of the parties and therefore in that where an Abbot and Covent made a Lease for years rendring Rent yearly during the Term to the Abbot and Covent or to his Successors it is all one as if it had been to him and his Successors and although the words be joint or in the Copulative yet by construction of Law the Rent shall be well reserved during the terme for if the reservation had been only Annually during the terme it had been sufficient and his Successors should have had the Rent Quaere the principall Case for the Judges differed much in their opinions Hill 8. Caroli in the Kings Bench. 517 The KING against HILL AN Information was by the Kings Atturney against Hill and others upon the Statute of 32. H. 8. of Maintenance Where the Point was A man was out of Possession and recovered in an Ejectione firme in May 2. Car. and Habere Possessionem was awarded and 29. Sept. 4. Car. he sold the Land And whether he might sell presently or not was the Question And it was determined That he being put in possession by a Writ of Habere facias possessionem that he might sell presently Vide Com. Crookers Case and C. Littl. acc and so was it holden in Sir John Offley's Case 7. Car. in this Court Barkley Justice If a Disseisor doth recover in an Ejectione firme if he afterwards sell the Land it is a pretended Title Jones Justice It was adjudged 36. El. in the Common Pleas in Pages Case in the Case of a Formedon That if a man be out of Possession for seven years and afterwards he recover that he may sell the Lands presently Crook Justice There is a difference where the recovery is in a reall Action and where it is in an Ejectione firme It was Master Browneloes Case in the Star-Chamber resolved by all the Judges of England That a Suit in Chancery cannot make a Title pretended nor Maintenance Barkley Justice put this Case If Husband and Wife bargaineth and selleth whereas the Wife hath nothing in the Land and afterwards a Fine is levied of the same Lands by the Husband and Wife it shall have a relation to conclude the Wife and to make the Wife to have a Title ab initio It was
171 365 368 369 forfeiture 269 142 365 felling trees 173 174 trespasse brought 174 Corporation 347 dissolved the donor shall have his land again 211 sues 393 Costs 329 345 220 Covenant 38 assignee 162 Executors ibid. 11 12 48 69 70 to build a mill c. there 271 273 175 99 120 333 335 217 to surrender 445 performed 95 The Indenture is void in part 213 Covenant 87 121 cause of things must appear in the Court 401 Countermand 133 County where actions shall be brought 335 of trials 429 Courts-Baron 68 69 Leet 71 Tower Court 145 of Requests 208 216 243 244 Kings Bench and Chancery 357 Acts done in spiritual Courts 33 163 164 181 215 Curia claudenda 127 Custom 5 49 234 140 143 235 267 261 135 of descents 166 127 That the wife may devise to the husband 14 Particular Customes 163 D Day in Court 68 Day materiall to be set down 433 434 Damages recowping in them 53 135 362 jonyt severed 57 assessed 98 343 344 not assessed writ of enquiry 207 not recoverable in account 57 treble 245 to be severed 210 Damage feasan 124 185 Date of a Patent 416 Declaration 251 86 186 in an action upon 1 2. P. M. of distresses 11 upon an Assumpsit 32 Custome 252 particularly 358 insufficient 76 106 343 370 mistakes 345 287 119 160 125 Deed things passe by one deed 129 by deed 354 128 Debt 253 91 336 372 217 210 who liable 294 The Kings debt 289 290 291 292 293 294 295 296 Default 280 Defamation 440 Delivery of deeds 130 of money to anothers use 210 Demand 23 39 67 96 154 337 where to be 331 by writ 74 335 310 the word 398 Demurrer 10 Denizen made 417 Departure 255 122 Depositions 193 Deprivation 259 163 Detaining 8 Detinue 370 Declaration in it 403 Devastation by Executors 30 Devastavit 285 Devise 7 14 15 16 26 40 46 208 266 280 95 99 130 131 299 319 146 351 352 363 to a Colledge c. 394 prevents a remitter c. 411 to a mans heir 412 to one daughter heir of land held by Knights service c. 17 to sell 78 to the Son and heir 94 Dilapidation 259 Diminution 267 alledged 407 Disability the plaintiff cause of it 75 76 Discharge 11 105 ought to shew what 61 Discent 3â—5 312 365 Disclam 25 Discontinuance one issue only found 5 370 within a year 219 Discontinuance by tenant in taile 317 Disseisin 522 of a particular estate 139 Acts of disseisor disseisor sues c. 388 Distresse justified 109 110 187 190 driven out of the Countrey 11 sufficient upon the Land 67 110 Divorce 19 145 Dove-coat a Writ of Right lies of it 259 erected 284 Dower 21 135 145 A Lease is for years 266 Forfeitable by the Husband 323 Averment of seisin of the husband for damage 212 E Ejectione firmae 6 15 18 53 71 72 33â— extra tenet unnecessary 60. lyes 157 Plea 149 Election 258 159 127 140 446 To sue 196 determined ibid. Elegit 257 82 84 Ely jurisdiction there 380 381 Emblements 159 Enclosure in Forrests 167 168 169 170 171 Entry into one house 72 To defeat an estate 9 To fortifie it 25 for forfeiture 175 No trespasse 283 Error 26 258 248 73 80 84 87 372 373 lyes not 261 247. brought 376 377 378 379 439. directed 44. things uncertaine 408. severall 440 Escape 22 27 262 280 125 126 372 403 Fresh suite 177 433 Escheat 78 For Miscreancy 34 Right of action 322 Essoine 235 236 Estates 19 42 51 52 272 A Lease for time 102 103 determined 9 the lesse drowned 52 voidable 9 Estoppel 257 48 147 321 177 384 385 Estranger to a plaint erroneous c. 403 Estovers custome pleaded 235. see 238 97 173 Estrepment 112 164 Estrey 150 151 Eviction 258 Evidence maintaines not the issue 235 see 326 Execution 26 257 258 80 82 83 84 290 295 147 125 126 181 371 372 373 217 Assignment after judgement 161 Taking 372. severall 208 Executors 21 192 See Right Of his own wrong 104 Reteines 217 Order in payment 298 Pleads fully administred 178 Exception in a grant 116 117 118 Time past to take it 100 One releases 431 Exâ—hange 99 100 Exigent 83 217 Excommunication 191. unjust 406 Exposition 16 17 18 36 37 67 71 236 246 198 of Lawes 39 of Statutes 309. and Patents 425 Extent 82 289 311 Extinguishment 24 11 101 314 128 137 211 Lands given by Statute to the King Annuity not extinguished 170 F Falsâ—fying a Recâ—very 271 Falsely imprisoned 124 Fee executed â—â—2 one cannot depend of another â—â—7 Fee-simple 155 Felony not before attainder 267 Cause of arrest for it 406 Feoffments 318 319 320 Fieri facias 276 147 83 Fine for vert c. 277. What Courts may fine c. 381 Fine levied by tenor of it 246 Parish not named 440 Record of it 103 129 307 148 351 179 First fruits 393 Forceable entry 45 Forfeiture of Lessor 105 141. Of a Right 321 See Treason Forgery 62 63 175 Form commanded by Statute must be observed 334 188 189 Formedon 239 302 163 Forrests chases c. 169 Frankalmoigne 396 Franchises 17 262 Usurped 91 Frankmarriage 18 19 20 Franktenement rule of it 9 In an upper chamber 44 Forfeiture 6 318 In case of Treason 34 307 308 310 315 316 Fraudulent conveyances and acts 6 7 285 161 191 192 G. GArdian in soccage 316 Gardens 6 Gavel-kind Plea 55 Grants Words apt 7 Of a common person 8 18 24 25 236 237 270 273 Restriction rule 237 To dig in his waste 18 Generall words 183 One thing passes with another 352 Things passe in grosse 127. By one Deed 129. Of the King 8 35 Where a mistake shall not abridge the fulnesse of words precedent 36 Favoured 37 38 262 136 425. See 414 415 416 417 421 422 423 425 Of a possibility 316 H. HAbeas corpus directed 44. See 198 199 Habendum 51 269 272 Habendum successive 220 Holidayes 218 Heire-speciall 3. Force of the word ib. 4 275 102 312 Homage 320 Husband and Wife acts of both or either 2 5 14 15 312 141 180 Wifes lease good 327 Gives land to her husband 143 Execution of the Wives Lease 26 See Reservation Husband may forfeit the Wives Copy-hold 345 May correct his Wife 215 I. IDeot 302 Jeofailes 56 57 194 Imbracery 240 Imprisonment 158 344 199. See Fine Improvement of common 97 Incidents 359 Ingrossers of corn 144 Innkeepers 345 346 Incroachment 24 411 Inquisitions 294 299 Indictment 45 46 65 67 272 84 157 400 346 For erecting a Cottage 383 For omitting the Crosse in Baptisme 119 Joynt 349 Contra pacem when 59 Infant 60 104 In his mothers belly 319 364 365 366. May grant c. 14 Brings Error to reverse a Fine 20 May release 30 31 Acknowledges a Statute c. 149 Appears c. 382 Promises to pay for his meat c. 219. Sues his Guardian discharges 214 Information 91 131 158
the words are upon reasonable request which implies a reasonable time to consider of it And there might be many occasions both in respect of her self and of the Common wealth that she could not at that â—ime do it And Hill 37. Eliz. in the Common Pleas PERPOYNT and THIMBELBYES Case A man Covenants to make Assurances It was adjudged hee shall have reasonable time to do it In 27. Eliz. the opinion of Popham was That if a man be bounden to make such an Assurance as Councell shall advise there if Councell advise an Assurance he is bound to make it But if it were such Reasonable Assurance as Councell shall advise There If the Councell do advise That he shall enter into seale and deliver a Bond of a thousand pound for the payment of an hundred pound at a day hee is not bound to doe it because it is not reasonable Vide 9. Ed 4. 3. cap. 6. part Bookers Case Doct. Stud. 56. 14. H. 8. 23. Secondly He said That the request in the principall Case was not according to the Covenant for the election in this case was on the womans part and not on the Covenantees part and shee was to doe the act viz. to surrender And where election is given of two things the same cannot be taken from the party and if it should be so in the principall Case the Covenantee should take away the election of the Covenanter And where the manner of Assurance is set down by the parties there they cannot vary from it and in this case the manner is set down in which the Covenanter hath the election because shee is to do the act And hee said That the woman was not bounden afterwards to surrender in Court upon this request because the request was as it were a void request And it is implyed by the words That shee in person ought to make the Surrender and so hee prayed Judgment for the Defendant It was adjourned Trinit 8. Caroli in the King 's Bench. 514. HYE and Dr. WELLS Case DOctor William Wells sued Hye in the Ecclesiasticall Court for Defamation for saying to him that hee lyed And the Plaintiffe prayed a Prohibition It was argued for the Defendant that in this Case no Prohibition should goe For it was said that by the Statute of 21. Edw. 1. of Consultation When there is no Writ given in the Chancery for the party grieved in the Temporall Court there the Spirituall Court shall have the Jurisdiction and in this Case there is no Writ given by Law And Fitzherbert Natura Brevium 53. h. a Consultation doth not lie properly but in case where a man cannot have his Recovery by the Common Law in the Kings Courts for the words of the Writ of Consultation are viz. Proviso quod quicquid in juris nostri regii derogationem cedere valcat aliqualiter per vos nullatenus attemptetur And Vide Register 149. Falsarius is to be punished in the Spirituall Court And Fitzherb Nat. Brev. 51. I. A man may sue in the Spirituall Court where a man defames him and publisheth him for false Vide Linwood in cap. de foro compâ—tenti acc Trin. 6. Jacobi in the Common Pleas Boles Case Rot. 2733. A man called a poor Vicar poor rascally Knave for which the Vicar sued him in the spirituall Court And by the opinion of the whole Court after a Prohibition had been granted upon further advice a Consultation was granted 1. It was objected That the party might be punished by the Temporall Judges and Justices for the words To which it was answered That although it might be so which in truth was denied yet the party might sue for the same in the spirituall Court And many Cases put That where the party might be punished by either Lawes that the partie had his election in what Court he would sue And therefore it was said That if a man were a drunkard he might be sued in the Ecclesiastical Court for his drunkennesse and yet he might be bounden to his good behaviour for the same by the Justices so the imputed father of a Bastard child may be sued for the offence either in the spirituall Court or at the Common Law by the Statute of 18. Eliz. and 7. Jacobi So F. N. B. 52. k. If a man sue in the spirituall Court for taking and detaining his wife from him to whom he was lawfully married if the other party sue a Prohibition for the same yet he shall have a Consultation quatenus pro restitutione uxoris suae duntaxat prosequitur and yet he may have an Action at the Common Law De uxore abducta cum bonis viri or an Action of Trespasse Maynard contrary By the Statute of Articuli Clâ—ri although that the words be generall yet they do not extend to all defamations And by Register 49. where the Suit is for defamation there the Cause ought to be expressed ought to be wholly spirituall as the Book is in 29. E. 3. and C. 7. part in Kenn's Case And in the principal Case It is not a matter affirmative which is directly spirituall And therefore 22. Jacobi where a Suit was in the Ecclesiasticall Court for these words Thou art a base and paultery Rogue a Prohibition was awarded And so Vinor and Vinors Case Trinit 7. Jacobi in the King's Bench Thou art a drunken woman Thou art drunk over night and mad in the morning 2. Hee said That Crimen falsi in the spirituall Court is meant of counterfeiting of the Seal or of Forgery and Crimen falsi cannot be intended a lie If in ordinary speech one sayes That 's a lie If the other reply You lie that is no defamation for Qui primum peccat ille facit rixam Trinit 42. Eliz. Lovegrove and Brâ—wens Case A man said to a Clark a spirituall person Thou art a Woodcock and a Foole for which words he sued him in the spirituall Court and in that Case a Prohibition was awarded It was adjourned Trinit 8. Caroli in the Kings Bench. 515 GWYN and GWYN's Case A Quod ei deforceat was brought against two they appeared and pleaded severall Pleas and the issues were found against both of them and a joint Judgement was given against them both and they brought a Writ of Error thereupon in the Kings Bench. And the opinion was That the Judgement was Erroneous and that the Writ of Error would well lie So in a Writ of Dower brought against two Tenants in common who plead severall Pleas the Judgement must be according to the Writ But Barkley said That if in a Writ of right by two the Mise is joyned but in one Issue where severall Issues are the Judgment ought to be severall Quaere quia obscurè Trinit 8. Caroli in the Kings Bench. 516 BLAND's Case THE Case was this Thomas Spence was a Lessee of Lands for one hundred years and he and Jane his Wife by Indenture for valuable consideration did assign over to Tisdale yeilding and paying
adjourned Pasch 10. Caroli in the Kings Bench. 518 BARKER and TAYLOR's Case IN an Ejectione firme the Case upon the Evidence was this Two Coparceners Copy-holders in Possession the one did surrender his reversion in the moity after his death Charles Jones moved That nothing did passe because he had nothing in Reversion Vide C. 5. part Saffyns Case If a man surrendreth a Reversion the Possession shall not passe 2. It is not good after his death so was it adjudged in C. 2. part Buckler and Harvey's Case Curia The Surrender is void and the same is all one as well in the Case of Copy-hold as of Free-hold and so was it adjudged 26. El. in Plats Case and so also was it adjudged in this Court 3. Caroli in Simpsons Case Pasch 13. Caroli in the Kings Bench. 519 HUMFREYS and STUDFIELD's Case IN an Action upon the Case for words the Plaintiff did declare That he was Heir apparant to his Father and also to his younger Brother who had purchased Lands but had no Issue either Male or Female and that the Defendant with an intent to bring him in disgrace with his Father and also with his younger brother and thereby to make the Father and younger Brother to give away their lands from the Plaintiff did maliciously speak these words to the Plaintiff Thou art a Bastard which words were spoken in the presence of the Father and younger Brother by reason of speaking which words the Father and younger Brother did intend and afterwards did give their Lands from the Plaintiff And by the opinion of the whole Court it was adjudged That the words were Actionable and Judgement entred accordingly FINIS I have perused this Collection of Reports and think them fit to be printed Per me JOHANNEM GODBOLT Unum Justiciar ' de Banco 18. Jun. 1648. An Alphabetical TABLE A ABatement of Writs 9 34 64 By Death 66 68 For Surplusage 380 Abeyance 313 314 319 443 Accâ—ptance 47 39 384 385 425 When a man is bound to accept c. 39 Accessary 65 Accusation before a Justice 444 Acts which purge the wrong before 384 Act subsequent where lawfull 28 29 First Act 337 Action 337 Another Action hanging 258 In what County 42 See County there where it bears date 388 Possessory 34 Before Seisin c. Special 186 Accord see Arbitrament Account 30 43 56 90 291 155 122 123 210 As Baiâ—y ad Merchandizandum 58 Against Executors 291 292 Acquittal 19 Acquittance 104 Addition de Parochia 203 Administrator is found to be an Executor 26 Surety in debt is Administrator c. 149 Administrator counts of his own Possession before he be possessed 34 see 40 Retains for his own debt 217 Administration 33 34 2 Durante minori c. 30 Sues to Execution the Executor comes of age 104 Admiralty upon a stipulation or bill there the body of the stipulators who are for the most part Masters of ships and Merchants transeuntes may be taken no execution can be upon lands It s jurisdiction 260 261 Admiralty Court its jurisdiction things partly done on land 386 387 388 389 390 Advâ—wson 17 38 128 129 passes in Grants 425 Equity in Statutes 308 Agreement disagreement 180 After an arâ—est 360 After Assumpsit 361 Alien 275 Amendment 57 286 103 Amercement 49 135 Distress for it without Presentment 190 Annuity 4 144 Ancient Demesn pleaded 64 320 Appeal 275 Appendant Appurtenant 40 352 353 Apportionment of rent 95 118 139 Apprentices bound by Covenants though Infants 122 Appropriation 1â—4 Approvement of common 116 Arbitrement 13 241 25 276 165 185 in part good 256 Arreers 12 Array triers of it 429 430 Arrests 125 358 lawful 360 Assault and battery 251 Assent of parties 429 430 Assets 29 30 31 averred 176 Assignment 18 of Debts 81 c. Assignee 3 16 70 271 277 120 162 Assize 4 for erecting houses 189 Assurance as counsel shall advise 435 bound to assure 445 446 Assumpsit 13 31 274 72 73 94 159 the arrest is void 360 337 338 350 138 144 358 to the servant 361 Attachment of Debts by custome 297 196 401 402 403 404 Attainder 267 275 303 325 376 Attaint 271 378 279 Atturnment 19 25 320 142 Atturney for livery 39 Atturney must not do acts unlawful 387 what he may do 389 Receipt by him 217 Audita querela 257 104 155 377 Averment of uses 269 214 in a devise 131 432 that Cestuy que vie is alive 195 Avowry 24 302 320 upon whom 368 Authority must be persued 39 84 195 389 naked 307 to recover a debt without more 358 359 Ayde 318 B BAil 148 339 Debt against them 354 Bailment of Goods 160 403 Bankrupts one Commissioner hath right to the land 319 division where but one bond 195 196 Bargain and sale 270 156 Bar Pleas in Bar 253 434 Insufficient 138 two bars 397 Barretor 384 Bastard 275 281 Battery a base fellow strikes a man of dignity 207 Benches 246 247 Bill Suits by bill 389 Bill for oppression or extortion 438 By-Lawes 50 Bishops their Acts 342 Borough English 3 C CApias 39 257 83 372 373 Case Action of c. 13 40 54 55 58 64 240 241 73 285 98 155 160 381 412 liâ—s 329 330 338 344 346 137 176 200 362 426 against an Inn-keeper 42 See Slander Vi armis c. 426 Trover c. 267 274 Challenge 234 110 193 428 429 to the Sheriff and Coronets 357 Chancery 262 Chaplains 41 Charge 3 Charters 370 Things in point of Charter 93 Church-Wardens 279 Cessavit 84 Certainty incertainty 14 93 336 220 once in a deed 198 Certiorari Certificate 14 356 404 Citation out of the Diocess 190 Claim 333 389 of the Lessee 105 Clark of a Parish 163 Colledges are Corporations 394 Collusion Covin 78 298 Colour 159 Commission Commissioners 105 193 High Commissioners 58 Common 4 21 96 97 185 168 169 170 171 Surcharged 182 Digging in the Common c 343 344 making Coney Boroughs 327 Where woods are inclosed 267 What the Commoner may do upon the ground 123 12â— Conclusion by the word praetextu 344 Condition assignee 162 c. 3 9 29 38 39 75 99 101 against Law 250 void 293 Lessee assignes Rent 336 broken acceptance by rent after 47 performance 299 that neither A. B. or C. shall disturb c. 60 61 not to implead A. 72 to assure lands as Councel shall advise 338 339 360 Confession 80 to save harmlesse c. 134 Confirmation 25 Consideration 13 31 32 94 134 159 437 against Law 251 to forbear a debt 303 306 See assumpsit 428 Conspiracy 76 206 447 Consultation 446 447 Contract 31 98 176 intire 154 Continuance to some intents 309 in Courts 195 Contribution for one surety against another 243 Conviction before it lands not to be begged 206 nor seised there 365 366 Copy-hold 2 11 47 233 268 129 130 140 Admittance 269 143 extinguished 101 Statutes extend to it 15 369 tailed 20 21 367 Fines 265 Leases