reversion shall be to both of them but if it be by Deed indented the rent shall go to one only according to the literal reservation Vide Litt. 80. 346. But if the Lease had been made by several Limitations as Habendum one Manor for 20 s. and the other Manor for 10 s. then the Lease and the Reversion had been several but here the rent shall not rule the reversion but the reversion the rent and the rent shall be of the same nature as the reversion Tenant for life makes a Feoffment in Fee upon condition and re-enters for the condition broken now by that re-entry the Freehold is reduced to the Lessee for life and the Fee unto the Lessor but the Forfeiture remains Two Ioyntenants one of them makes a Feoffment in Fee of his Moiety upon condition and for the breach of the condition re-enters the Ioynt Estate is revived And he conceived that the Grantee of part of the Estate or part of the Land should not take advantage of the condition and he said that the Bargainor is an Assignee within the Statute If Tenant in Tail makes a Lease for years and afterwards bargains and sells the reversion the Vendee hath a Fee simple determinable and may enter for the condition broken If a reversion be granted to two and to the Heirs of one of them they are Assignees within the Statute and if he who hath but an estate for life surviveth he also is an Assignee for the entire reversion passeth out of the Grantor and that is my Rule Iudgment was given against the Re-entry LXXXIII Pasc 30 Eliz. In the Kings Bench. Surrender LEssee for 21 years took a Lease of the same Lands for 40 years to begin immediately after the death of J. S. It was holden in this case that the same was not any present Surrender of the first term but if J. S. dye within the term then it is a Surrender for it may be that J. S. shall survive the first term Pasc 30 Eliz. In the Kings Bench. LXXXIV Anderson and Heywoods Case Copyholder A Copyholder of an Inheritance of a Manor which is in the hands of the King is ousted of his Copyhold It was holden that he hath not gained any Estate so as he may make a lease for years upon which the Lessee may maintain Ejectione firmae but he hath but a possession against all Strangers And it was holden in this case that if a Copyholder dyeth 1 Leon. 100. Rumny and Eves his heir within age he is not bound to come to any Court during his Nonage to pray admittance or to tender his Fine also if the death of his Ancestor be not presented nor proclamations made he is not at any mischief although he be at full age Pasc 30 Eliz. In the Kings Bench. LXXXV Cook and Songates Case IN Assumpsit Assumpsit the Plaintiff declared whereas Lis controversia had been moved between the Plaintiff Lord of the Manor c. and the Defendant claiming certain Lands parcel of the said Manor to hold the same by Copy c. And both the said parties submitted themselves to the Iudgment and Arbitrement of Mr. Godfrey a man learned in the Law. concerning the said Land and the title of the Defendant to the same The Defendant in consideration that the Plaintiff promised to the Defendant that if the said Mr. Godfrey should adjudge the said Copy to be good and sufficient for the title of the Defendant that then he would suffer the said Defendant to enjoy the said Land accordingly without molestation the Defendant reciprocally promised to the Plaintiff that if the said Mr. Godfrey should adjudge the said Copy not to be sufficient to maintain the title of the Defendant that then he would deliver and surrender the possession of the Land to the Plaintiff without any Suit. And shewed further that the said Mr. Godfrey did award the said Copy utterly to be insufficient c. Yet the Defendant continued the possession of the said Land It was moved that the same was not a good and sufficient consideration to ground an Assumpsit But Gawdy Iustice said it was a good and sufficient consideration because it was to avoid Controversies and Suits And afterwards Iudgment was given for the Plaintiff Trin. 26 Eliz. In the Kings Bench LXXXVI Taylors Case IN Assumpsit the Case was Assumpsit That the Defendant promised to carry certain Apples for the Plaintiff by Boat from Greenwich in the County of Kent to London and the Apples being in the Boat the Boat in which they were by a great and violent Tempest was sunk in the River of Thames so as the said Apples perished c. It was holden to be no Plea in discharge of the Assumpsit by which the Plaintiff had subjected himself to all adventures LXXXVII Trin. 26 Eliz. In the Kings Bench. Devise A. Seized of Lands in Fee and having Issue two Sons Richard and Gilbert by his Will willed That if his Son Richard dye before Issue so that the Land descend to my Son Gilbert then I will that my Overseers shall have the Government of my Lands and of my Son Gilbert Richard took a wife and dyed she being young with Child with a Daughter the Devisor died the Daughter was born It was adjudged in this Case that by this Devise the Daughter was excluded from the Inheritance and that Gilbert should have the Land. Trin. 32 Eliz. In the Kings Bench. LXXXVIII Lukes Case LUke Esq of Tedcaster was Indicted upon the Statute of 13 Eliz. cap 8. for being a Broker in a Vsurious Contract for which he encurred a Praemunire Who pleaded Not Guilty upon which they were at Issue and at the day of the Return of the Distringas the Iurors appeared and the same day that the Iury was to be taken Popham Attorney General sent for the Distringas and for certain causes for the Queen would not proceed Note that the Attorney was informed that the Iury was partial It was moved by Cook that the Attorney could not stay the Proceedings the Writ being returned and the Iury appearing he could not stay the Tryal for no President is thereof Popham The Entry shall be in this case Vicecomes non misit breve Cook That is false and the Sheriff is sworn to make a true return but by consent of the Parties such a thing may be done for Consensus tollit Errorem Quaere 33 Eliz. In the Exchequer LXXXIX The Queen and Painters Case Accompt of the King against a Stranger SIr William Pelham was Surveyor of the Ordnance and delivered the money of the King to Painter Clerk of the Ordnance It was holden in this case That for the said money the Queen might have Accompt against Painter although he wanted a privity which cannot be so in case of a common person for if any Receiver make one his Deputy I shall not have an Accompt against him Popham Attorney General If one of
where the Suit is Tam pro Domina Regina quam pro seipso CXXII Trin. 32 Eliz. In the Exchequer Debt IF Rent-corn be reserved upon a Lease for years and it is behind for two or three years the Lessor may have Debt for the Corn and shall declare of so much Corn and it shall be in the Detinet but yet he shall not have Iudgment to have Corn but so much mony as the Corn was worth every several year being accompted Clark Baron doubted if he shall recover the price of the Corn as it was at the time when it was payable or it was at the time of the Action brought Manwood The Law is clear that the Lessee shall pay according to the price it was at the time of the payment and delivery limited by the Lease Clark said A is bound to pay and deliver to the Obligee 10 Bushels of Wheat and no place is appointed where the payment shall be made the Obligor is not bound to seek the Obligee in what place soever as it is in Case of payment of mony for that the importableness therefore shall excuse him which Manwood granted CXXIII Trin. 27 Eliz. In the Exchequer NOte It was holden by the Barons Fine for Alienation without Licence that for Fines for Alienation without licence not only the Land aliened but the other Lands of the Alienor shall be chargeable Mich. 30 Eliz. In the Exchequer CXXIV Prowses Case IT was holden in the Case of one Prowse by Egerton Solicitor Tythes upon the Statute of 31 H. 8. where an Abbot had a Rectory impropriate and also Land within the same Parish c. and so paid no Tythes because he could not pay them to himself and for no other cause was discharged and after the Dissolution the Rectory is granted to one and the Land to another that in such Case the King nor his Patentees should not be discharged of Tythes for the Lands were not discharged in Right but if the Lands in the hands of the Abbot were discharged in Right as by composition or lawful means there the King and his Patentee should be discharged from payment of Tythes And it was said by Burliegh Lord Treasurer that if the Composition or Custom was that the Abbot and his Successors should be discharged without extending to Farmors or Lessees if the Abbot made a Lease and the Lessee paid Tythes as he ought and after the Reversion cometh to the King the Lessee should pay Tythes during his Lease but after the Lease determined the King and his Patentee should not pay but should be discharged by the said Statute and said the like matter was in the Chancery Trin. 30 Eliz. The Abbot of Tewkesbury having the Rectory impropriate of Tewkesbury 11 H. 7. purchased Lands within the said Parish to him and his Successors Unity no discharge of Tythes after the dissolution the King granted to G. the Rectory and to W. the Lands and if W. should pay Tythes was referred to Manwood and Periam who gave their Resolution that Tythes were payable Trin. 30 Eliz. In the Kings Bench. CXXV Ropers Case ROper was robbed by Smith and within a week after the Robbery he preferred an Indictment against him and within a month after the Robbery he sued an Appeal against Smith and prosecuted it until he was out-lawed and thereupon Cook moved to have Restitution and they of the Crown Office said that the Fresh-suit was not enquired for upon an Appeal one shall not have Restitution without Fresh-suit Restitution Cook The Books are if the Defendant in the Appeal of Robbery be attainted by Verdict Fresh Suit. the Fresh-suit shall be enquired of But here he was attainted by Outlary and not by Verdict and so the Fresh-suit could not be enquired of and here the Indictment is within a week and the Appeal within a month after the Robbery is a Fresh-suit Wray Chief Iustice In our Law he is to pursue the Felon from Town to Town but the suing of the Appeal is no Fresh-suit vide 21 F. 4.16 Restitution grounded upon Outlawry and Appeal of Robbery without Fresh-suit enquired of 1 H. 4. 5. if he confess the Felony and so is 2 R. 3. 13. Trin. 30 Eliz. In the Kings Bench. CXXVI Piers and Leversuches Case IN Ejectione firmae by Piers against Leversuch It was found by Verdict that one Robert Leversuch Grandfather of the Defendant was Tenant in Tail of the Land whereof c. and made Lease for years to Purn who assigned it over to Piers the Plaintiffs Father Robert Leversuch died W. his Son entred upon Piers who re-entred W. demised the Lands without other words to P. for life the remainder to Joan his wife for life the remainder to the Son of P. for life with warranty and made a Letter of Attorney to re-enter and deliver seisin accordingly P. died before that the Livery was executed and afterwards the Attorney made Livery to Joan W. died Edward his Son and Heir entred upon his Wife she re-entred and let the Land to the Plaintiff who upon an Ouster brought the Action Heal Serjeant When P. entred upon W. Leversuch the Issue in Tail he was a Disseisor and by his death the Land descending to his Heir the entry was taken away of W. Leversuch Cook contrary P. by his entry was not a Disseisor but at the Election of W. for when P. accepted such a Deed of W. it appeared that his intent was not to enter as a Disseisor and it is not found that the said P. had any Son and Heir at the time of his death and if not then no descent and there is not any disseisin found that P. expulit Leversuch out of the Land and Iudgment was given against the Plaintiff And Cook cited a Case which was adjudged in the Common Pleas it was Skipwiths Case Grandfather Tenant in Tail Father and Son the Grandfather died the Father entred and paid the rent to the Lessor and died in possession and it was adjudged the same was not any descent for the paying of the rent explained by what title he entred and so shall not be a Disseisor but at the Election of another Trin. 33 Eliz. In the Kings Bench. CXXVII Penhalls Case PEnhall was indicted upon the Statute of 5 E. 6. for drawing his Dagger in the Church against J. S. without saying that he drew it with intent to strike the Party and for that cause the Indictment was holden void as to the Statute It was moved if it should not bee a good Indictment for the Assault so as he should be fined for the same By Sands Clerk of the Crown and the whole Court the Indictment is void in all for the conclusion of the Indictment is contra formam Statuti and then the Iury cannot enquire at the Common Law. Trin. 33 Eliz. In the Kings Bench. CXXVIII Weshbourns Case WEshbourn and Brown were Indicted upon the Statute of 8 H. 6. and exception was
on the other side That the Estate of the Alien is so weak that a confirmation cannot enure upon it for an Alien cannot take but to the use of the King and cannot be infeoffed to anothers use and if he be such use is void For there is not a sufficient seisin in an Alien to carry an use And it hath been adjudged on Forset Case Where an Alien and the said Forset were Ioynt-Purchasers and the Alien dyed that Forset should not have the whole by Survivour but that upon Office found the Queen should have the moiety Vide 11 Eliz. Dyer 283. Mich. 30 Eliz. In the Common Pleas. CLXXVI Jermine and Arscots Case THe Case between Jermine and Arscot was this A seized of Lands in Fee had Issue six Sons and one Daughter and devised the Manor of c. parcel of his said Lands to J. S. for ninety years if the said J. S. and G. his Wife or any of them should so long live the remainder to P. his eldest Son and the Heirs males of his Body the remainder to his other Sons in tail the remainder to his Daughter Provided That if the said P. his Son or any of the Sons of the Devisor or any of the heirs males of their bodies should endeavour by any Act or Thing to alien bargain or discontinue c. that then after such attempt or endeavour and before such Bargain and Sale c. were executed that the estate of such Person attempting should cease as if he were naturally dead and that then the premises should remain and come to such person to whom the same ought to come remain or be by the intent and meaning of his Will and died P. levied a Fine of the Manor he in the next remainder entred and claimed the Land by force of the Devise This Case was this Term argued by Walmesly Serjeant that an Estate tail cannot cease for it is an Estate of Inheritance and here is not any limitation for the Estate tail by the meaning of the Devisor shall remain revivable upon the death of the Offender but a Limitation determines the Estate utterly which is not here but here it appeareth as well by the meaning of the Devisor as by the words of the Devise that the Estate tail upon such act should be suspended and it cannot be resembled to the Case cited on the other side 22 E. 3. A Rent granted to one in Fee and that it shall cease during the Nonage of every Heir the Rent is but suspended between the Parties and Privies to the Gift as in the Case of Littleton of Re-entry and Retainer quousque but that a Stranger should re-enter and retain quousque that cannot be And in the Case of Scholastica reported by Plowden the Estate tail by such Offence is determined by the limitation But in our Case by the meaning of the Devisor only suspended so our Case is not like to that Case Shuttleworth to the contrary The purpose of the Devisor appeareth to be the continuance of the Land in the name and Family of the Caries and as to the difference of ceasing and suspending of an Estate tail the same is not to the purpose for the Tenant in tail himself may suspend his Estate tail therefore à fortiori the Donor upon the Creation of the Estate tail As by Littleton Tenant in Tail grants totum statum suum the Estate tail is thereby suspended and by Anderson if in such a Case after such a grant Tenant in tail levy a Fine in our Case If Tenant in tail offend and the party to whom the next interest is limited enters and after the Offender levies a Fine to a Stranger there although his Estate was determined by the offence yet the Estate tail is bound by the Fine Ad quod caeteri Justiciarii murmurabant Tenant in tail hath Issue two Sons the eldest in the life of his Father levieth a Fine and after the Father dieth the Estate tail is bound contrary if the Father had survived his eldest Son And afterwards in the end of this Term Iudgment was given against the Plaintiff for by the Will here is a good limitation and an estate to cease upon an act and upon another contingent to be revived is good enough Vide 30 E. 3. 7. A Lease for life rendring rent and if the rent he behind that the Lessor shall return quousque agreement be made so as a Freehold may cease and rise again according as the same is limited And all this was agreed by Rhodes Periam and Windham and afterwards Walmsley for the Plaintiff took an Exception to the Bar for that the Defendant pleaded Quod Petrus Cary tempore levationis finis praedict non habet exitum and doth not say that tempore quo ipse Henricus clamabat reversionem praedict the said Peter had not Issue for he said if Peter had Issue when Henry claimed the Reversion nothing had vested on him by the said claim But all the Court besides Anderson said that needed not be but if the matter had been such the same should come on the part of the Plaintiff Also they said That the Estate was vested in Henry without claim and although after the Offence committed and before claim Peter have Issue yet Henry should retain the Land during the life of the Offender against such Issue born after the Fine levied for by the Fine levied the Reversion vested in Henry without any claim by force of the said limitation CLXXVII Mich. 30 Eliz. In the Common Pleas. Alien suffers a common Recovery 9 Co. 141. LAnd was given to an Alien in tail the Remainder over to another in Fee the Alien suffered a common Recovery and died without Issue All this matter was found by Office. It was moved That this Office should have return so as upon the matter the Alien was not Tenant of the Land at the time of the Recovery suffered But the whole Court held the contrary and that the Recovery was good and should bind him in the Remainder Mich. 30 Eliz. In the Common Pleas. CLXXVIII Seixtbark and Percies Case EJectione firmae of Lands in Knolton and Woodland the Parties were at Issue and the Venire facias was of Knolton only and it was found for the Plaintiff It was shewed in stay of Iudgment that the Venire facias was not well awarded for it ought to have been De vicineto de Knolton Woodland which was granted by the Court And that that defect was not relieved by any Statute for it is a Mis-trial and for that cause Iudgment was stayed and a Venire facias de novo granted 30 Eliz. In the Common Pleas. CLXXIX The Provost of Queens Colledge in Oxfords Case THe Provost Fellows and Scholars of Queens Colledge in Oxford are Guardians of the Hospital and Meason de Dieu in Southampton and they make a Lease of Lands parcel of the Possession of the said Hospital to one Hagel for term of years by the name of
of the body of the Husband and he said a Scire facias did lye upon the Fine well enough for the Fine is not void but only erroneous and being in its force this Writ doth well lye And he cited to this purpose 7 E. 3. Fitz. Sc. fac 136. where upon such a Fine levied and such Exception ut supra taken to it To which it was said by Herle that forasmuch as the Fine is excepted and yet in its force we ought to grant Execution and also 30 H. 6. none can take the first Estate in the Fine but he who is named in the Writ of Covenant but every Stranger may take by way of Remainder and such was the Opinion of the whole Court As to the matter in Law all the Court agreed That notwithstanding the Recovery the Demandant should have Execution for here the Land which by pretence of the said Recovery shall be Recoverd in value cannot go to the Estate which is given for the Estate given was to the Husband and Wife and the Heirs of the body of the Husband and then the Tenant against whom the Recovery was had was impleaded as sole Tenant in which Case the Vouchee when he comes in is to warrant a sole Estate but not another but now the Land to be recovered in value shall go to the Husband alone and the Wife shall have nothing so as the true Estate is not warranted and so not answered And he cited the Case of 38 E. 3. 5. in a Formedon the Tenant vouched himself for to save the tail and shewed that one A. was seized and gave the Land in Demand to the now Tenant and to E. his Wife in tail which E. is now alive and by award the Voucher was disallowed Because it was there said by Knevyt the Recovery in value cannot be according to the gift 45 E. 3. 18. Tenant in tail discontinues and takes back an Estate in Fee is impleaded and voucheth the Donor he shall be ousted of the Voucher for that he is in of another Estate and afterwards the Plaintiff had Iudgment to have Execution Mich. 33 Eliz. In the Common Pleas. CXCIII Foles and Griffins Case DEbt upon Obligation by Foles against Griffin the Condition was That if the Obligee may enjoy certain Tythes demised to him by the Defendant during his Term against all Persons paying yearly the Rent of three pound that then c. To which the Defendant said that the Plaintiff did not pay the said Rent c. Beaumont Serjeant moved that the Plea is not good but he ought to say that the Plaintiff enjoyed the Tythes until such a Feast at which time such Rent was due which Rent he did not pay for which c. Quod Curia concessit Mich. 33 Eliz. In the Kings Bench. CXCIV Young and Taylors Case IN Debt upon an Obligation upon Condition to perform the Arbitrament the Obligation was laid to be made in the Parish of Bow in London and the submission was of all things depending between them so that they made an Award of the premisses before such a day and said further that no Arbitrament was made The Plaintiff Replicando said that the Arbitrators made an Award in the Parish of Pancras in Warda praedict and layed a breach c. The Defendant rejoyned that 300 l. was depending in Controversie between them for a certain thing of which no Arbitrament was made upon which they were at Issue and tryed by a Visne of the Parish of Bow only which passed for the Plaintiff It was moved in stay of Iudgment That the Trial was not good for no place is alledged where the Controversie of 300 l. is depending for which cause it shall be tried where the Bond and Arbitrament was made to which it was said That the alledging the place where the Arbitrament was made is superfluous for which Cause the Trial is good And also the Submission being conditional the Award ought to be of all things submitted or else it is void contrary if it be no Condition Vide Cook 8 Part Baspoles Case Mich. 32 Eliz. In the Common Pleas. CXCV. The Queen and the Bishop of Lincolns Case THe Queen brought a Quare Impedit against the Bishop of Lincoln and others And the Case was That F. Bishop of Lincoln Predecessor of the Defendant was Patron of the Church and presented to the same being void one Garth who being inducted took another Benefice by which by reason of the Statute of 21 H. 8. the first Benefice became void and remained void by the space of seventeen years whereupon the Queen was entituled to present to the same by Lapse The said F. then Bishop presented to the same and afterwards was translated to Winchester and the Defendant now Bishop was suffectus And he certified into the Exchequer that the Incumbent presented by the said F refused to pay his Subsidy upon which he was deprived and if now the Queen shall present by reason of her Title by Lapse notwithstanding the plenarty after or if the Title by Lapse of that Presentment of the Bishop was c. was a great Question And the Case late adjudged between Beverly and Cornwel was cited but there the Case was that the Clark presented where the Presentment appertained to the Queen by Lapse died but here he is deprived which may be the Covin betwixt the Ordinary and him Fenner argued to the contrary and put divers Cases to prove that the Prerogative of the Queen did not alter the right of the Parties As the Queen hath a Seignory consisting of Homage Fealty and Rent and the Queen grants the Seignory to a Stranger reserving the Rent and afterwards the Tenancy Escheats the Rent is gone The Queen leases for years rendring rent to a Stranger upon Condition who enters upon the Lessee the Condition of the Queen is suspended The Queen purchaseth Lands in Borough English hath Issue a Son and dyeth seized he hath the Land now by descent afterwards a younger Son is born that Land shall be divested out of the possession of the King and the Royalty of his person doth not alter the right of descent And afterwards forasmuch as the same deprivation is the act of the Incumbent the refusal the act of the Ordinary himself the sentence and not the act of God in the case before cited It was the Opinion of the Court That Iudgment should be given for the Queen CXCVI. Windham and Meads Case WIndham brought an Action upon the Case upon the Common Law of England concerning Hostlers The Case was That the Servant of Windham brought his Masters horse to the Inn and there it was stollen To which the Defendant said That the said Servant brought the said Horse to the said Inn to be put to Pasture and thereupon the said Horse was put to grass and was there stollen it was ruled in that Case that the Inn-keeper should be excused but if the Inn-keeper of his own head without direction of the Owner
he could not put in a true Inventory and upon that the Plaintiff prayed a Prohibition surmising that he himself claimed Property in the said Goods and the Ecclesiastical Court would not allow of it and the Trial of the said Goods did belong to the Common Law And a Prohibition was granted Trin. 33 Eliz. In the Kings Bench. CCLXII Mountjoyes and Andrews Case IN Scire Facias upon a Iudgment in Debt The Defendant pleaded that heretofore a Fieri Facias at the Suit of the now Plaintiff issued directed to the Sheriff of Leiceâ—â—er by force of which the said Sheriff took divers Sheep of the Defendant Execution adhuc doth detain them Retorn of Writ It was holden by the Court a good Plea although he doth not say that the Writ was returned for the Execution is lawful notwithstanding that and the Plaintiff hath remedy against the Sheriff CCLXIII Vide this Case reported by Cook 1 Part by the name of Capells Case THe Case between Hunt and Gately in the Exchequer Chamber was now argued by Fenne That the Rent granted by him in the Remainder upon an Estate tail is good and shall bind the Land after the Estate tail determined notwithstanding the common Recovery suffered by the Tenant in tail in possession Before the Statute of Westm 2. of Donis Condic c. no Remainder could be limited upon an Estate tail for that which remained in the Donor was but a possibility and therefore then a Formedon in Remainder did not lye But the said Statute which provided a Formedon in the Descender provided also by Equity a Formedon in the Remainder for a Formedon in the Reverter as appeareth by the said Statute was in use in Cancellaria And now here in our case is a Remainder lawfully vested in the Grantor which he may dispose of as he sees good and therefore when he grants a Rent-charge out of it the same is a thing vested in the Grantee and by no subsequent act can be divested and although the Estate which was charged be now charged by the Recovery yet it is the same Land which was charged and therefore the charge shall continue as if a gift in tail be rendring Rent and the Donee levieth a Fine yet the Rent remaineth and the Donor shall distrain 48 E. 3. 3 9. So here If after the grant of this Rent Tenant in tail in possession levies a Fine by which the Remainder which was charged is discontinued and afterwards the Conusor dyes without Issue the Grantee shall distrain upon such possession which passed by the Fine As if A. lease to B. for life and afterwards grants a Rent out of the same Land to C. B. aliens in Fee and dyes although that A. cannot re-enter but suffers the said torcious Estate gained de novo by wrong to continue yet B upon such possession shall distrain for the Rent for it is the same Land which was charged and by Law a thing in abeyance may be charged As if a Parson grant a Rent-charge to begin after his death and the Patron and Ordinary confirm it it shall bind although the Grant doth not take effect in the life of the Grantor but when the Freehold is in abeyance So if the Patron and Ordinary in the time of Vacation grant a Rent-charge out of the Parsonage the same is good and shall bind the Successor and yet at the time of the Grant the Freehold of the thing granted is in abeyance Vide 5 E. 6. Dyer 69. That a Rent which is not in esse shall be bound by a Iudgment 22 E. 3. 19. 5 E. 3. Fitz. Dower 343. By Bracton Jus concerning a real thing is threefold 1. Jus terrae scil the Ownership of the Land. 2. Jus in terra as a Rent Common c. 3. Jus ad terram scil Right permanent And by this Common Recovery in our case Jus terrae shall be bound but not Jus in terra And he said That if Land be given to A. in tail the Remainder to the Kings Villain in Fee and before any claim by the King A. suffers a common Recovery and dyes without Issue this Recovery shall not bind the King. And as to the Case of 26 H. 8. 2. which hath been Objected against the falsifying of the Recovery where a Parson made a Lease for years and afterwards in a Quare Impedit brought against him and the Patron they pleaded faintly to the intent to make the Lessee lose his Term now such a Lessee cannot falsifie in such case the Parson by another way might have defeated the Lease as by Resignation but in our case the Grantor of this Rent by no way might defeat his Grant And he said a common recovery did not bind Dower therefore nor this rent And if Tenant in tail in possession grants such a rent and after suffers a common recovery the rent shall stand why not also in the case of a remainder for upon them both as well the remainder as the possession the recovery operatur And recoveries shall always bind the possession and no farther and shall not disprove the right but the possession And the recovery by it self doth not bind the possession but in respect of the Voucher without which no recovery shall bar and that in respect of the recompence which the Law presumes c. which recompence cannot extend to this Rent-charge and then there is no reason that he to whom it was granted should be prejudiced by this recovery and always in case of recompence the Law is very precise As if I grant unto you an Annuity of 30 l. per Annum until you be presented to a competent Benefice a litigious Benefice is not a recompence intended nor shall determine the Annuity nor a Benefice of 15 l. If two make an exchange for their Lives and one of them dyeth the exchange is not determined but the Heir of him who dyeth shall enter and retain the Land as long as the other shall live Ad quod Manwod Chief Baron subsidebat And there is a great difference between a Lease for years and a Rent-charge for at the Common Law upon such Recovery the Lessee for years was bound contrary of a Rent-charge for it was unreasonable that a thing not demanded by the recovery should be bound by it especially because that the Land rendred in value shall not be charged with the rent Walmesley Serjeant contrary A remainder upon an Estate tail is debile fundamentum and cannot uphold with assurance a Rent-charge against a common recovery and it cannot be found in any Book but in 5 E. 4. 2. That a remainder upon an Estate-tail expectant may be charged for an Estate-tail is in Law presumed to be perpetual and therefore what Lands are entailed by Fee the words of the Fine are Sibi haeredibus de Corpore suo exeuntibus imperpetuum And it is the common learning in our Books that every Estate of Inheritance be it Fee-simple or Fee-tail shall be
intended to be continued till the contrary be shewed And the Authority which the Owner of a Remainder hath upon it is but conditional scil If the Tenant in tail in possession doth not countermand it by a recovery c. And also the possession upon which the Avowry is made is not the same possession which was charged but is a Foreign possession gained by the recovery and therefore before the proper possession be recontinued there can be no Distress nor Avowry for the Land is not reduced in the privity of Estate which was charged and if he in Reversion upon such Estate tail would grant his reversion rendring rent and afterwards the Tenant in tail in possession suffers a common recovery and dyeth without Issue Now the reversion being destroyed the rent is gone And he put this Case Tenant in tail grants a Rent-charge to begin after his death without Issue and afterwards suffers a common recovery and dyes without Issue it is a good rent and shall bind the Recoveror c. At another day in the Exchequer Chamber the Case was argued again by Snagg Serjeant for the Defendant and he was very long in proving that a remainder might be charged as in this case But the Court discharged him of that and directed him to argue to this Point If this recovery did discharge the rent c. wherefore he argued That these common recoveries are false and feigned things false in the Title and covenous in the Proceedings and all in prejudice of a third person And Vide 14 H. 8.3 such common recoveries are holden fraudulent and therefore by fraud and covin being so odious in our Law we ought not to give and allow unto them so much force as is due to unfeigned recoveries for these common recoveries do not go in disaffirmance of the former possession nor in any eviction of it but for the most part in affirmance and the Estate gained by this recovery is under the Estate of him against whom the recovery was had and he is in by him for common Recoveries are no other but common Assurances And in our Case the imagined Recompence cannot come to him who hath by the recovery lost his rent and therefore it is not reason that the recovery should bind as to this rent Vide 12 E. 4. 19 20. Tenant in tail discontinueth and takes back an Estate to him in Fee and afterwards a common recovery is had against him it shall not bind the tail for the presumed recompence shall go to the Estate which he hath lost scil the Estate in Fee and not to the Estate tail whereof at the time of the recovery he was seized So in our Case the Land which by Fiction of Law is to be yielded in value upon this Voucher shall not extend to the benefit or recompence of the Grantee of the Rent-charge but only to H. who hath lost his remainder and his new remainder which comes in lieu of the former shall not be charged with this rent And therefore the remainder which by this recovery is drawn out of H. transit cum suo onere cum acciderit shall answer and shall yield the rent according to the purport of the Grant. As 33 H. 6. 4 5. two Ioyntenants are The one grants a Rent-charge and afterwards releases to his Companion he shall hold the Land charged notwithstanding that he be now fully in by the Feoffor And if there be Lord and Tenant and the Tenant grants a Rent-charge in Fee and dyeth without Heir so as the Land goes to the Lord in point of Escheat yet the Lord shall hold the Land charged And as to the Statute of Fraudulent Conveyances 27 Eliz. cap. 4. the same cannot extend to this Grant for here this Grant is upon consideration of Nature made to his own Son for his advancement Popham Attorney General to the contrary And that neither the Grantee of this Rent nor he who makes Conusans in his right shall falsifie this recovery And he put a difference where the party who leaseth or chargeth a remainder is bound by the recovery voluntarily and where involuntarily for where the recovery is suffered voluntarily there the Grantee or Lessee shall not be bound by that recovery but they shall falsifie But where as our Case is there the Party who chargeth or leaseth is bound involuntarily by such recovery there all Interests are bound and the charge is subject to the same mischief as the remainder it self out of which it is issuing Vide 7 H. 7. 12. He in the remainder in Fee shall not satisfie a recovery had against the Tenant for life but he is put to his Writ of Entry ad terminum qui praeteriit in which he shall falsifie and not by Entry much less he in the remainder upon an Estate tail shall not falsifie and falsifier lyes properly where the Party who grants or leaseth against his Grant or Lease practiseth by such recovery to avoid or defeat his own Estate and by consequence the Interest of his Grantee or Lessee But in our Case there is not any such matter for the Grantor H. was not party or privy to this recovery nor Tenant nor Vouchee and therefore no Covin and then no Voucher and all the Cases in our Law of falsifying of recoveries are upon such matter And he put the Case of 19 E. 2. Fitz. Title Assise 82. where the Conusee of a Statute Merchant having sued Execution one who had no right impleaded the Conusor and by Covin recovered against him and by Execution upon that recovery ousted the Conusee it was holden he should have an Assise and falsifie for here he who party to the recovery Donee in tail the remainder over in Fee upon condition suffers a common recovery the Condition is gone And as to the Statute of 21 H. 8. cap. 15. Falsifying is not given in our Case by the said Statute the words of which are Where divers Men have leased their Land to Farm and afterwards after such Leases made the Lessors their Heirs and Assigns have suffered Recoveries Within which words our Case is not for he against whom the recovery was had was not our Grantor his Heir or Assign So if there be Tenant in tail the remainder over to another in Fee he in the remainder makes a Lease for years and afterwards Tenant in tail in possession suffers a common recovery the Lessee shall not falsifie for that Lease was not made by him against whom the recovery was had And it is clear that by the Common Law the Grantee of a Rent-charge cannot falsifie against the Grantor his Heirs or Assigns But it was a doubt as it appeareth 7 H. 7.11 If upon a faint pleader the Lessee for years might be received for the Statute of Gloucester extends but to default or re-disseisin but now by the Statute of 21 H. 8. cap. 11. in three Cases Default Reddition and Faint pleading such Resceipt lyes which proves that in case of rent
Copy-hold 88 Not within the Statute of Wills. 236 If a Copyholder in possession surrender the Reversion of his Land post mortem suam to the Lord to an use nothing is thereby passed 8 Tenant for Life of a Copyhold remainder in fee he in the remainder may surrender his Estate if there be no Custom to the contrary 9 In what Case a Copyholder ousted cannot make a Lease for years upon which the Lessee may maintain Ejectione firmae 30 If a Copyholder dyeth his Heir within age he is not bound to come to any Court during his Non-age to pray admittance or tender his Fine 31 If the death of his Ancestor be not presented nor proclamations made he is not at any mischief although he be at full age ibid. A Copyholder may surrender by Attorny 111 241 Costs The Plaintiff shall have Costs upon 5 Eliz. for hunting in his Park notwithstanding the Statute gives treble damages 36 If the Plaintiff be Non suited in an Action upon an Escape the Defendant shall not have Costs 182 Debt SHall not be brought against the Husband upon a Contract by the Wife 42 For Rent 18. For Rent-Corn reserved upon a Lease for years shall be brought in the Detinet 47 Upon a Concessit solvere according to the Law Merchant and Custom of the City of Bristol 105 Devise To a Colledge in Vacancy of a Head. 223 If one possessed of a Term deviseth that his Son shall have the same when he comes to the age of 18 years and that his Wife whom he makes Executrix shall enjoy it in the mean time and dye and the Wife take Husband she shall have the Term as Executrix till the Son accomplish the age of 18 years 1 Of Lands part to the eldest Son in Tail and part to the younger Son in Tail with this clause That if any of the Sons dyed without Issue the whole Land to remain to a Stranger in Fee the Sons entred respectively and the younger dyed without Issue the Stranger entred but his Entry was not lawful for the eldest Son shall have the Land by the implicative Devise 14 By a Father to his Son and Heir 35 200 237 Who shall first take by a Devise 37 Emblements WHere by Law they belong to the Executors 1 Entry If a Disseisor of 100 Acres le ts the same to divers for years the Entry in one Acre by the Disseisee is an Entry against them all 8 And if one makes a Lease for years rendring 10 l. for the first two years and afterwards 30 l. every year with Condition to Re-enter if the Rent of 30 l. or any part be behind the Lessor enters for Non-payment of the 10 l. his Entry is lawful for it was but one Rent of which the 10 l. was parcel ibid. Entry Congeable 39 Error He who is special Heir by the Custom as of Burrough English shall have the Writ of Error and not the Heir at Common Law. 5 Estate Executed 37 Estrepement In Partition ought not to be granted and why 60 Evidence Maybe good enough to maintain a Declaration though it vary from it 14 Execution An Infant once discharged out of Execution shall never be in Execution again 6 Execution of a Statute shall bind the King. 10 Where not good upon a Capias without a Scire Facias 24 If the Bail be taken in Execution before the Capias ad Satisfaciend against the Defendant be filed they may avoid this Execution by Error but not by Plea or Surmise 24 If the Plaintiff takes out Execution within a year and a day after Judgment obtained although he doth not prosecute it in two or three years yet when he pleaseth he may proceed upon it and shall not be put to a Scire Facias 44 Exposition of Words The words sub Conditione ea Intentione in a Feoffment be not a Condition but an Estate executed presently according to the intent 2 Domus est nomen collectivum and contains many Buildings as Barns Stables c. 16 Omnes Dimissiones being general words shall not be restrained to special Leases 17 The word growing though it sound in the Present Tense yet it shall be taken also in the Future Tense 36 So the word being but otherwise if the words had been tunc being 37 The word paying if it creates a Condition or not Quaere 50 Proviso semper put on the part of the Lessee upon the words of the Habendum makes a Condition but contrary of a Proviso on the part of the Lessor 71 The Provost Fellows and Scholars of Queens Colledge in Oxford as Guardians of the Hospital c. in S. make a Lease of Lands parcel of the Possession of the said Hospital by the name of Praepositus Socij Scholares Collegij Reginalis in Oxonia Gardianus Hospitalis c. and good without saying Gardiani in the Plural Number 85 Extinguishment If Lessee for 10 years grant a Rent-Charge to his Lessor for the same years and the Lessor grant the Remainder in Fee to the Lessee for years by this the Rent is extinguished 2 Felo de se IF the Queen grants to A. Catalla Felonum de se within such a Precinct where one indebted to the Queen having Goods is Felo de se the Queen shall have the Goods to satisfie her Debt 6 Feoffment To Uses 23 By one Coparcener cestuy que use of the whole is not only a Feoffment of that moiety she might lawfully dispose of but also of the other moiety by disseisin 52 Fines of Lands Where a Fine levied by the Husband of Lands whereof he and his Wife are Donees in Special Tail shall bar the Issue and where not 2 Fine by the Husband where avoids a Lease e contra 15 Fines levied to Uses 22 Issue of a Tenant in Tail the Remainder to the King shall be barred by a Fine 40 Fine for Alienation Not only the Land aliened but the other Lands of the Alienor shall be chargeable for the Fine for Alienation without Licence 47 Forfeiture If Lessee for years being sued for Rent claims Fee in the Land and hath none it is a Forfeiture 3 Of an Obligation with Condition That the Grantee of the next Avoidance of an Advowson should enjoy the same without any disturbance or claim of the Grantor 18 An Obligation to perform a Covenant that the Lessee of a Term shall enjoy it without expulsion or any Act done or to be done by the Lessor shall not be forfeited by Non-fesance 38 39 Of an Obligation conditioned to perform an Award 190 If Tenant for life joyn the Mise upon the meer Right it is a Forfeiture 128 Where Tenant for life is impleaded if he maketh default or confesseth the Action it is a Forfeiture ibid. If Tenant for life bargains and sells his Land by Deed inrolled although no Fee passeth yet it is a Forfeiture 129 contra 124 Grant. BY the King of the Office of the Kings Bench. 19 Recital in Grants of the King.
Mich. 29 Eliz. In the Kings Bench. XXII Barton and Edmunds Case AN Infant and another were bound for the debt of the Infant Infant the Infant at his full age promised to save the other harmless the Infant died It was adjudged that upon this Assumpsit Assumpsit an Action upon the Case did lie against his Executors XXIII Mich. 36 Eliz. In the Kings Bench adjudged IF an Executor promise to pay a Debt when he hath not Assets It was the Opinion of all the Iustices that no Action upon the Case lieth against him but if he hath assets then it is otherwise And the Heir if he hath nothing by descent is not subject to an Action upon such a promise Mich. 28 Eliz. XXIV The Lord Pagets Case Indictments AN Indictment was Quare vi armis clausam A. B. apud D. fregit whereas A. B. then had a Lease at Will of the land the matter was for digging of Turfs the Indictment was holden to be good XXV 25 Eliz In the Kings Bench. Indictments INdictment De uno Equo where it was a Gelding holden not good But otherwise it is where Trespass was brought de Equo castrato and the Iury found a Gelding and adjudged for the Plaintiff 26 Eliz. XXVI Tucker and Nortons Case Execution AN Infant in Execution upon condemnation in Debt sued a Writ of Error his Father and Brother bailed him It was said the Recognisance shall be by them two only that the Infant shall appear and if the Iudgment be affirmed that they pay the mony and not that they shall render his body to prison for when he is once discharged out of Execution he shall never be in Execution again XXVII Mich. 29 Eliz. In the Common Pleas. Nobleman Recognizance IT was holden by the Iustices That a Nobleman shall be bounden with his bail in a Recognizance that he shall render his body and that upon the Statute of 13 E. 1. If he hath not goods or lands his body shall be taken in execution for the Law in such case excepts only Clarks XXVIII Hil. 26 Eliz. In the Exchequer Felo de se THe Queen granted to one Catalla utlagatorum felonum de se within such a Precinct One indebted to the Queen having Goods is felo de se within the Precinct Resolved the Queen should have the Goods to satisfie her debt 26 Eliz. In the Kings Bench. XXIX King and Cottons Case LEssee for life the remainder in tail the remainder in fee Disseisin Lessee for life makes a Deed of Feoffment of the Land and delivers it and makes a Letter of Attorney to another to deliver Seisin who enters and makes Livery accordingly adjudged that the Attorney is a Disseisor 26 Eliz. In the Kings Bench. XXX Gerrards Case THe Owner of the Lands severed his Tythes Prohibition and a stranger took them and carried them away The Parson libelled in the Spiritual Court against the Owner of the Land for the Tythes who thereupon prayed a Prohibition It was adjudged no Prohibition should issue in this Case for that he might plead the same matter in Bar in the Spiritual Court. Hil. 31 Eliz. XXXI Willet and Wilkinsons Case NOte it was adjudged Surrender that if Lessee for years take another Lease from the Guardian in Soccage that the same is a Surrender of his first Lease Note the second Lease was made in the name of the Guardian Trin. 26 Eliz. XXXII Ould and Conyes Case IT was adjudged Commoner Conies that a Commoner cannot kill Conies which destroy his Common though he hath not any other remedy Trin. 29 Eliz. In the Kings Bench. XXXIII Mayes Case ONe sent a Letter by a Carrier to a Merchant for certain Merchandizes to send them to him receiving a certain sum of mony the Merchant sent the Merchandizes by the Carrier without receiving the mony It was the opinion of the Iustices that the Buyer should not be charged for the mony for it was a conditional bargain and it was the folly of the Merchant to trust the Carrier with the Wares Mich. 30 Eliz. XXXIV Haltons Case A Recognizance was acknowledged before Sir N. Read one of the Masters of the Chancery Recognizance Inrollment and the Recognizor died before it was enrolled it was doubted if it might be enrolled at the Petition of his Executors it was agreed by the Iustices that it might be well enough for it is like to a Conusans of a Fine before a Iudge which may be removed out of the hands of the Iudge by Certiorari and yet it is not a Record till the perfection of it At the same time it was doubted also if the Chancery would aid a man when there wanted the words Heirs in a Deed where the land was sold for mony Chancery compel Attornment But it was agreed that after a Fine levied the Chancery might compel the Tenant to Attorn Hil. 27 Eliz. XXXV Holland and Hopkins Case IN Ejectione firmae it was agreed by the Court that if a Disseisor be of an 100 Acres and he lets the same to divers for Years that the entry into one Acre by the Disseisee is an entry against them all but if they had been Tenants for life Quaere for that then he might have his Action against them And it was said Entre congeable that if one makes a Lease for years rendring for the first two years 10 l. and afterwards 30 l. every year with condition if the rent of 30 l. or any part of it be behind that the Lessor enter The Lessor enters for not payment of the 10 l. that his entry is lawful for the 10 l. was parcel of the rent for it was but one rent Trin. 29 Eliz. In the Kings Bench. XXXVI Clamp and Clamps Case Copyholder Surrender A Copyholder in possession surrendred the Reversion of his land post mortem suam to the Lord to an use c. It was adjudged that thereby nothing passed XXXVII Trin. 21 Eliz. In the Common Pleas. A Lease was made of a Mannor with all Gardens Orchards Yards c. and with all the profits of a Wood except to the Lessor forty Trees to take at his pleasure It was a Question if the Lessee should have the Wood It was the opinion of Dyer That the Wood was not comprised within the Lease but the Lessee should only have the profits as pawnage Leases herbage c. And he said it was a Case adjudged a man made a Lease of a Wood ad faciendum maximum proficuum meliori modo quo poterit that the Lessee thereby could not cut the Trees nor do waste Mich. 33 Eliz. In the Exchequer XXXVIII Butler and Lightfoots Case IT was holden by the Barons Copyholder Surrender 3 Leon. 239. That if Tenant for life be of a Copyhold the Remainder over in Fee to another he in the Remainder may surrender his Estate if there be no custom to
which Ayliffe concessit Wray Chief Iustice was absent in the Star-Chamber Trin. 26 Eliz. In the Kings Bench. XLV Harvey and Harveys Case Suit for Legacies Prohibition CLare Harvey libelled against Sebastian Harvey the Executor of Sir James Harvey their Father for a legacy bequeathed to him by his Father in his Will. By which he willed that after his death his Goods should be divided and parted betwixt his Children according to the laudable custom of London and averred in his libel that the Goods and Chattels whereof the Testator died possessed amounts to such a sum and that it belonged unto him being one of his children to demand so much Virtute Legationis praedict The Defendant came and prayed a Prohibition and Wray Chief Iustice conceived he ought to have it for here is not any legacy but the Testator setteth forth his meaning that his pleasure is that the custom of London should be observed in the disposition of his Goods and the said Clare is put to his Writ de rationabili parte Bonorum But yet afterwards a special Consultation was granted Pasc 27 Eliz. In the Common Pleas. XLVI Sandersons Case Leet NOte It was adjudged by the Court that Pound-breach is not inquirable in a Leet for it is not a common Nusans But Rhodes Serjeant said that excessive Toll is inquirable in a Leet Vide Book of Entries 390. XLVII Pasc 37 Eliz. In the Common Pleas. Abatement of Writ IN a Quare Impedit by the Queen exception was taken to the Writ because the words were quod permittat ipsam praesentare ad Rectoriam de D. where it ought to be ad Ecclesiam the Court awarded that the Writ should be openly amended in Court by a Clerk of the Chancery Amendment XLVIII Pasc 27 Eliz. In the Common Pleas. Pleadings IN a Writ of Entry for Disseisin the Tenant said that the House in demand is within the City of London and that the said City is an ancient City and that King Henry 3. concessit Civibus Civitatis praedict quod non implacitentur de terris tenementis suis c. extra Muros Civitatis praedict and said that he himself is a Citizen of London and demanded judgment of the Writ and to the Pleading he further said Sed illis rectum teneatur infra Civitatem praedictam secundum Consuetudinem Civitatis praedict Exception was taken to the Plea because the Tenant did not shew before that by their custom they ought to be impleaded And by the Opinion of the whole Court the Tenant ought to have shewed that the Citizens for their lands there ought to be impleaded in the Hustings c. And the general words in the Plea Sed illis rectum reneatur infra Civitatem praedictam secundum consuetudinem Civitatis praedict do not supply the defect aforesaid And afterwards it was awarded that the Tenant plead Ouster Mich. 21 Eliz. In the Common Pleas. XLIX Hunt and Sones Case AN Action upon the Case by W. Hunt against W. Sone Assumpsit 2 Leon. 107. Owen 42. 3 Cro. 118. 1 Roll. 29. 30. ibid. The Plaintiff declared Quod cum idem Hunt was seised in his Demesn as of Fee of certain lands and shewed the same in certain praedict Sone in consideration that the said Hunt permit the said Sone occupare terras praedict ab eodem die 20 Julij 27 Eliz. usque ad secundum diem Novembris which should be in Anno 1589. assumed and promised that he the said William Sone ad festum omnium Sanctorum proxime sequend 10 l. 2 s. 6 d. ac ab inde annuatim durante dict termino 20 l. 5 s. ad festa Annunciationis Beatae Mariae ac omnium Sanctorum per aequales portiones solvend eidem Hunt bene fideliter contentare vellet at licet praedict W. Hunt permisit praefat Sone occupare terras praedict a dict 20 die Julij 27 Eliz. Usque ad secundum diem Novemb. 28 Eliz. Licetque etiam post dict 20 diem Julij 27 Eliz. ante praedict diem secund Novemb. An 28 Eliz. dict fest omnium Sanctorum An. 27. Supradict ac fest Annunciationis Beatae Mariae Virginis ac fest omnium Sanctorum 28 Eliz. praeterierunt praedict tamen W. Sone dict 10 l. 2 s. 6 d. ad praedict fest omnium Sanctorum proxime sequend post permissionem assumptionem praedict ac aliam 10 l. 2 s. 6 d. ad fest Annunciationis 28 Eliz. ac alia 10 l. 2 s. 6 d. ad fest omnium Sanctorum An. 28. Eliz. superdict nondum solvit The Defendant pleaded that the Plaintiff entred into parcel of the Premises 6 October 28 Eliz. eadem occupare eundem Sone non permisit upon which they were at Issue and it was found for the Plaintiff it was moved in stay of Iudgment that the Plaintiff had no cause of Action before that all the Term was expired for it is an entire Assumpsit and cannot be severed by action and therefore it was said that if I promise to pay you 10 l. viz. at such a Feast 5 l. and at such a Feast other 5 l. there before the last day of payment no Action lieth for the sum of 20 l. is one sum entire But if I promise to pay another at Easter next 10 l. and at Midsummer as much here they are several Assumpsits and upon default of payment of the first sum an Action will lie without excepting the latter payment But at last the Court agreed That Iudgment notwithstanding that exception should be given for the Plaintiff and that the Declaration was good enough as well in respect of the Exception aforesaid as also that the word Licet was effectual enough to set forth the permission L. Hil. 31 and 32 Eliz In the Common Pleas. A. Disseised B. of two Acres of Land and leased one of them to C. at will and the other Acre to D. at will and they entred accordingly B the Disseisee by Lease leased both Acres to E. for years and entred into one of the Acres in the name of both and sealed and delivered the Lease to E. It was holden by the Court to be a good Lease to maintain an Ejectione firmae of both Acres LI. Mich. 32 Eliz. In the Common Pleas. 2 Cro. 655 656 plus 2 Roll. 416. Johnson versus Smart cont A. Seised of certain Lands and having two Sons devised part of his Lands to his eldest Son in tail and the other part of his Lands to his younger Son in tail with this clause in the Will that if any of his Sons dyed without Issue that then the whole Land should remain to a stranger in Fee and dyed the Sons entred into the Lands devised to them respectively and the younger Son died without issue and he to whom the Fee was devised entred It was adjudged That this Entry was not lawful and that the eldest Son should have the Land by the implicative devise Mich. 32 Eliz. In the
Defendant that these Matters of Forgery were not within the Statute of 5 Eliz. nor also the Perjury or the procurement thereof upon which the Lords of the Council there Upon the Statute of 5 Eliz. of Perjury referred the consideration of the said Statute to both the Chief Iustices who at the next day in Court declared their Opinions upon the said Matters i. e That the said Matters did not extend to the Forgery of a Deed containing a gift of Chattels personals which see clearly by the Statute which as to that purpose extends but to Obligations Bills Obligatorie Acquittances Releases or other Discharges and that also a Deed of Assignment of a Lease of Lands in Ireland is not within the said Statute and also they were of opinion that the said Perjury and the procurement of it was not punishable by the said Statute because the Oath was taken coram non Judice for the Town-Clerk of London could not take an Oath in such a case Note no more than a private person But because that the Bill in the perclose and conclusion of it was contrary to the Laws and Statutes of this Realm the two Chief Iustices were of Opinion That the said Court might punish these Offences as Misdemeanors at the Common Law but not according to the Statute and afterwards Shyriffe was fined and by Order of the Court to stand upon the Pillory Mich. 29 Eliz. In the Exchequer Chamber LXXX The Queen and Lord Vauxes Case Bills IN the Exchequer Chamber before the Chancellor c. the Lord Vaux brought a Writ of Error upon a Iudgment given against him in the Court of Exchequer and assigned for Error that a Bill was exhibited against him that the Lord Vaux had taken certain goods of the Queen at Westminster in the County of Middlesex and also had intruded into the Rectory of Ethelborough in the County of Northampton whereas the Queen ought to have brought several Bills being for several causes arising within several Counties But it was resolved by the whole Court That the Bill of the Queen was good enough and here is no mischief for if the Defendant will plead Not Guilty two several Venire Facias shall be awarded one into Middlesex the other into the County of Northampton Mich. 27 Eliz. In the Common Pleas. LXXXI Owen and Morgans Case GEorge Owen brought a Scire Facias against Morgan to have Execution of a Fine levied 8 Eliz. by which Fine the land was given to the Conusee and his heirs the Conusee rendred the same to the husband and wife and to the heirs of the body of the husband Note that the husband was the Conusor the remainder in Fee to the now Demandant and note that the Writ of Covenant was between the Conusee Plaintiff and the husband Deforceant without naming the wife And afterwards the husband suffered a common Recovery without naming of the wife Common Recovery the hushand and wife died without Issue and now Owen to whom the remainder was limited by the Fine brought a Scire Facias in bar of which the Recovery was pleaded It was argued by Shuttleworth Serjeant That the said Recovery had against the husband was a good bar Feme not party to the Writ of Covenant not bound by a Recovery and should bar the remainder and the wife ought not to be named in or party to the Recovery for that nothing accrued to her by the Fine because she was not party to the Writ of Covenant and to the Conusans vide 32 H. 8. Fines 108. None can take by the Fine but those who are named in the Writ of Covenant but every Stranger may take by way of Remainder Vide etiam 7 E. 3. Br. Fines 114. 6 E. 3. Fitz. Fines 117. 7 E. 3. Fitz. Scire Facias 136. It is said by Herle if such a Fine ut supra be taken it is good as long as it is in force LXXXII Sir Richard Lee and Arnolds Case Post 93. SIr Richard Lee Kt. seized of three Manors made a lease of them to Sir Nicholas Arnold for certain years reserving for the one Manor 5 l. and for the other Manor 10 l. and for the third Manor 10 l. upon condition that if the said rents or any of them or any part c. be behind a re-entry into all the Manors and afterwards he bargained and sold the reversion of one of the said Manors to William Winter in Fee and afterwards by Deed indented and inrolled bargained and sold the two other Manors and for the rent of one of the said Manors the Vendee did re-enter into all the Manors Manwood Here are several reservations Reservation of Rents upon a joynt Lease several rents and several leases for although that the words are joynt yet by construction they are become several as Land given to an Abbot and a Secular man although here be joynt words yet they are Tenants in Common Litt. 296. And if I sell to you two Horses the one for 5 l. and the other for 5 l. here are two several contracts the Parties to whom these reversions are assured ut supra are Assignees within the Statute of 32 H. 8. by which it is enacted that Assignees may take advantage of Conditions for such an Assignee is not meerly in by act of law as the Lord by Escheat and he is not such an Assignee but is in by conveyance The Lessor enters upon his Lessee Assigns and makes his Feoffment and the Lessee re-enters now the Feoffee is an Assignee and this condition is destroyed in part and continued in part Condition destroyed in part good in part If one hath Common in the land of another for 20 beasts and releases his Common for 10 beasts the Common for the residue remains but if he purchaseth part of the land in which he hath Common the whole Common is destroyed A Feoffment to two with warranty and one of them releases the warranty all the warranty is gone As to the condition for as much as it is not collateral but incident to the reversion it may be severed and is of the same nature as the rent and reversion A man possessed of lands for 20 years and seized of other lands in Fee Conditions divided leaseth all the land for 10 years reserving rent with clause of re-entry and dieth now the Heir hath a reversion for the land in fee and the executor for the other land so the condition is divided according to the reversion so if lands were given to one in general tail and others in special tail he thereof makes a lease rendring rent and dieth having several Issues inheritable to each tail now the condition shall go according to the rent and he conceived that the Grantee of parcel of the reversion is an Assignee within the said Statute Grantee of parcel of the Reversion is an Assignee within 32 H. 8. Of Conditions as if a Lease for years
the Exchequer lend unto another 500 l. of the Queens money and takes a Bond for it in his own name yet the Queen shall have an Accompt against the Borrower Mich. 29 Eliz. In the Exchequer XC Pelhams Case IN the Exchequer Chamber before the Chancellor Treasurer Savile Rep 43. Grant of Office of Sheriff and Barons there in the Case of Pelham the Case was That the Queen had granted by her Letters Patents that Pelham should not be Bailiff Constable nor other Officer or Minister Licet eligatur yet it was holden that the Queen might make him Sheriff for that Grant doth not extend to Officers Royal as Grants of Amercements do not extend to Amercements Royal and also the Office of Sheriff doth not lye in Election but if the words had been Licet eligatur per nos then it should have been otherwise And such was the Opinion of Bromley then Lord Chancellor Trin. 19 Eliz. In the Kings Bench XCI Godbolts Case IN the Case of one Godbolt It was agreed Sales that the sale of a Bailywick of a Hundred was not within the Statute of 5 E. 6. cap. 16. For such an Office doth not concern the Administration of Iustice nor is it an Office of Trust XCII In Temps Eliz. A. Granted to B. a Rent-charge out of his Lands to begin when J. S. died without Issue of his Body J. S. dyes having Issue which Issue dyes without Issue Dyer held that the Grant shall not take effect for J. S. at the time of his death had Issue and therefore from thence the Grant shall not begin and if not then then not at all And Manwood said that if the words had been to begin when J. S. is dead without Issue of his Body then such a Grant shall take effect when the Issue of J. S. dies without Issue c. If Donee in Tail hath Issue which dies without Issue the Formedon in the Reverter shall suppose that the Donee himself died without Issue for there is an Interest Difference between an Interest and a Limitation and there is a diversity between an Interest and a Limitation for if I give Land between A. and B. for term of their lives if any of them dye the Survivor shall hold the whole but if I give Lands to A. for the lives of B. and C. now if B. and C dye the whole Estate is determined because it is but a Limitation and B. and C. have not any Interest Vide to this purpose 34 Eliz. Brudnels Case in Cook 5. p. 9. XCIII Temps Roign Eliz. In the Common Pleas. A. Seized of a Manor leased the same for years rendring rent with clause of re-entry and afterwards levied a Fine Sur Conusans de droit c. to the use of himself and his Heirs the rent being demanded is behind Dyer A. cannot re-enter for although the rent in right passeth without Attornment yet he is without remedy for the same without Attornment and it would be hard without Attornment to re-enter It was here moved further if the Conusor be an Assignee within the Statute of 32 H. 8. Manwood The reversion of a Termor is granted by Fine there wants Privity for an Action of Debt Waste and Re entries But if the Conusee dieth without Heir although that in right it was in the Conusee yet the Lord by Escheat shall make Avowry and yet the Conusee by whom he claims could not And in the Case at Bar the Conusee himself could not but the Conusor being Cestuy que use who is in by Act of Law shall Avow and re-enter without Attornment for the Conusor is in by the Statute of 20 H. 8. Harper The Heir of the Conusee shall Avow and re-enter before Attornment Dyer 13 H. 4. The Father leaseth for years rendring rent with clause of re-entry the Father demands the rent which is not paid the Father dyeth the Son cannot re-enter for the rent doth not belong unto him and therefore in the Case at Bar the Conusor cannot Avow for the rent before Attornment therefore not re-enter And in Case of Bargain and Sale the Bargainee is Assignee within the Statute but not the Conusor in this Case Temps Roign Eliz. XCIV 15 Eliz. Sir Francis Leak and Sir Walter Hollis Upon Attainder of Treason who shall seize the Goods for the Queen AT the Assizes the Opinion of Dyer and Stamford was demanded upon this matter One seized of Lands and Tenements and possessed of Goods within the Duchy of Lancaster was Attainted of High Treason and a great Question arose between Sir Francis Lake Kt. Bailiff of the Duchy and Sir Walter Hollis Sheriff which of them ought to seize for the Queen and their Opinion then was that the same did appertain to the Office of the Sheriff if in the Patent of the Sheriff there were not special words to the contrary XCV 15 Eliz. In the Common Pleas. TEnant at Will made a Lease from year to year Lease by Tenant at Will if a Disseisin Dyer conceived that it was not a Disseisin but the Lease was void and he said that the Book of 12 E. 4. 12. was not Law. For he who disseiseth a man ought to claim Inheritance in the land whereof the disseisin is done Harper conceived that the said Book of 12 E 4. 12. was good Law for a Lease at Will is a Lease at the will of both parties and therefore when the Lessee makes a Lease for years his will is determined and he will not hold at will. Manwood agreed with Dyer for if Tenant at Will lease for years rendring rent before that the Lessee for years entreth the Tenant at Will shall not have any rent for it was not a perfect contract otherwise it is where a man seized of Lands leaseth the same ut supra If one entreth into my land and occupieth the same of his own head claiming to hold the same at my will and afterwards I demand of him a certain rent for the occupation of my land he is now my Tenant at Will which all the Iustices granted Mich. 30 Eliz. In the Kings Bench. XCVI Cutter and Dixwels Case ACtion upon the Case for that the Defendant exhibited a Bill to the Iustices of Peace against the Plaintiff containing and complaining That the Plaintiff is an enemy to all quietness seeking by all means to disquiet his neighbours and hath used himself as a lawless person and having Process to serve upon one in the Parish scil J. S. did keep the Process and would not serve it but on the Sunday in the time of divine Service not having regard to her Majesties laws or the quiet of his neighbors Vpon which Bill the Iustices to whom it was exhibited awarded Process against the Plaintiff to find Sureties for his good behaviour by virtue of which he was taken and imprisoned It was the Opinion of all the Iustices in this Case that upon this Matter an Action upon the Case would not
Mildmay had a Commission to make leases for 21 years of the Lands of the Queen because the Queen should not be troubled with it They could not make leases but in possession only by virtue of their Commission but all others which exceed 21 years and in Reversion passed by the hands of the Attorney of the Queen and not by them only by their Commission 2. Because he cannot make a lease upon a lease for by the same reason that he might make one future lease he might also make 20 leases in ruturo and so make void the Act It was Marshals Case upon the Statute of 1 Eliz of leases to be made by Bishops The Bishop of Canterbury made a lease for one and twenty years and afterwards he made another Lease for 21 years to begin at the end of the first Lease It was holden that the second Lease was not good Leases by spiritual persons as Bishops c. But in the great Case upon that point in the Exchequer Chamber there the second Lease was in possession and to begin presently and ran with the other and therefore it was adjudged a good Lease because the Land was not charged with more than with 21 years in the whole and if it had been so done here it had been good Wray said that if the second lease had been made two or three years before the expiration of the first lease then clearly it had been void but because but one two or three days or a month before he doubted if it should be void or not The Statute of 32 H. 8. Leases made for one and twenty years to be good from the day of the date thereof and one makes a lease to begin at a day to come and by two of the Iustices of the Common Pleas it is good but the two other Iustices held the contrary Clench Iustice There is no difference if it be by one Deed or several Deeds and therefore he held that if the Earl had made a lease for one and twenty years and within a year another it is a void Lease whether it be by one Deed or two Deeds for he exceeds his Authority And so in the principal Case If there had been no Proviso he could not have made any lease therefore the Proviso which gave him Authority ought precisely to be performed At another day it was argued by Daniel for the Lessee in Reversion to begin at a day to come and by him words only are not to be taken or considered in a Statute but the meaning of them and they are not to be severed Also Statute Law is to be expounded by the Common Law and by the Common Law if one give Authority to another to make leases of his Lands he may make leases in Reversion because an Authority shall be taken most beneficially for them for whom it was given So if one grant an Authority to make Estates of his Lands by that general word he may make leases for years or life or gifts in tail Feoffments or other Estates whatsoever If one gives a Commission to another to make leases for One and twenty years of his lands he may make a lease in Reversion and that Case was in the Duchy between Alcock and Hicks Leases 2. It is good by Statute Law For the Statute of Richard 2. which gives Authority to Cestuy que use to make leases he may thereby make leases in Reversion The Statute of 27 H. 8. which gives Authority to the chief Officer of the Court of Surveyors to make leases if it had stayed there he might have made leases in Reversion but the said Statute goes further and says Proviso that he shall not make a lease in Reversion vide 19 H. 8. Dyer 357. The Statute of 32 H. 8. of leases to be made by Husbands of the lands of their Wives by the general words of the said Statute they might make Leases in Reversion But the Statute goes further Proviso that there shall not be any former Lease in being above 21 years before the making of the said Leases In all Cases of Statutes which are with Provisoes the Law upon them shall be taken generally if not in such particulars which are restrained by the Proviso as here the Proviso goes to the ancient Rent to be reserved that the Countess shall have remedy against the Lessees for the said Rent c. therefore it is at large in all other points but in these As if the Wife be within age and she and her Husband joyn in a Lease yet this Lease is good by the Statute of 32 H. 8. because the Law is general and doth not restrain these Imperfections expresly So a Feoffment in Fee with warranty Proviso that he shall not Vouch yet that is a restraint as to the Voucher only and he is at large to Rebutt or have warrantia Chartae A Lease for life Proviso he shall not do voluntary waste he is at large to do other waste but otherwise it were if there were no Proviso Therefore a Proviso makes the words precedent to be expounded more liberally The words of the Statute of 33 H. 8. cap. 39. of Surveyors which gives authority to the chief Officer to devise set or let for 21 years he might have made a Lease for 21 years in Reversion if the Proviso had not been But the words of the Act in our Case are demise demises therefore shall be taken most liberally 3. As to the intent of the Act this Lease is within it for the intent is to be collected out of the words and shall not be drawn to any private intent against the words which should be done here for by such Exposition the Earl his Heirs Executors c. should be prejudiced and the Countess only should be benefited Also Remedy is given to the Countess by this Act against such Lessees that she should have the Rent by Debt or Distress as it she had been party or privy therefore it is reason via versa that they have remedy against her for their Leases Also he said that the same remedy should be for them as against the Earl himself if he had lived therefore they shall have remedy against her who might have had it against the Earl in his life Also the Statute is to be expounded according to the words where such Exposition is not rigorous nor mischievous Also private Laws are to be expounded by the Letter and strictly as the Deed of the party as 14 E. 4. 1. Br. Parliament 16. a particular Act was made that the Chancellor calling to him one of the Iustices might award a Subpoena between A. and B. and end the matter between them there by all the Iustices but Littleton he shall not award a Subpoena general but a Subpoena making mention of the Act for he shall pursue the particular Act strictly and a common Act for the common profit shall be construed largely Also a Statute shall not be construed largely by Equity to
neither at the time of the Will nor at the time of her death she had nothing of the said Manor of Tremington but the said Rent of one hundred thirty and six pounds Also it may be taken that she who devised was ignorant of the Law and conceived that it was a Manor when she had Rents and Services out thereof notwithstanding that those who are learned in the Law know that a Manor could not pass without there was two Suitors at the least 21 R. 2. Devise 27. Lands are devised to one for life the remainder Ecclesiae Sancti Andreae in Holborn there it is holden in an Ex gravi Querela that the Parson should recover for otherwise the Devise should be void if the Parson should not have the Lands and in Wills shall subserve and give place to the intent of the Party and therefore if a man deviseth that his Lands shall be sold for the payment of his debts his Executors shall sell them and to that intent the naming of them Executors is sufficient Plow Com. 523. in Weldens Case it is vouched to be adjudged that if one after the Statute of 27 H. 8. deviseth that his Feoffees shall be seized to the use of A. in Fee that it was a good Devise of the Lands to A. and yet then he had not nor could have any Feoffees c. But the Party was ignorant of the Statute and his intent to pass the Land was apparent in that Case the words were as much impertinent to the matter as in our Case for there he had not any Feoffees as here she hath not any Manor Br. recites That in 38 H. 8. it was holden by Baldwin Shelly and Morgan that if a man who had Feoffees to his use would after the Statute of 27 H. 8. that his Feoffees should make an Estate to J. S. that the Land should pass to J. S. 26 H. 8. Feoffments Faits 12. Land cannot pass by the Deed of an House for it cannot be parcel of an House but an Acre of Land may be given by the name of a Carve and a Carve of Land by the name of a Manor and yet a Carve can be no more a Manor than this rent yea Rents and Services more resemble a Manor than a Carve of Land. It cannot be intended that her Will was here to pass the Manor it self which was not in her but in another Also she by four years before had the rent and therefore it shall be intended that it was her meaning to pass the same which she her self received and no other thing and although in the Devise the rent be specially named and the Manor also yet the same shall not alter the Case for if a man grant the Reversion upon an Estate for life and by the said Deed grants the Land and the Tenant attorns and the Grantee deviseth all his Land the Reversion shall pass without all question If a man grant the Advowson of D. and in the same Deed the Church and Rectory of D. and the Grantee deviseth the Rectory of D. the Advowson shall pass In Adams Case Plow Com. 195. a man leaseth his Capital Messuage rendring rent there the question is If the Reversion or Rent shall pass It was adjudged That all which he had passed As to that that it cannot be levied out of the Rent for that no place is therein of Distress I say that she did not know whether a lesser rent might be paid out of a greater rent and 1 H 4. Multure was granted reserving rent and the Grant was good The words of the Will are All which Manors Lands and Tenements c. she devised to the Lord Mountjoy and these words expound her meaning for although the word Rent be not within the word Manor yet the words Lands and Tenements do comprehend it and words subsequent in Wills may express the Premisses As 16 Eliz. Dyer 333. Chapman seized in Fee of two Houses having three Brothers devised the House in which A. inhabited to his three Brethren and A. to dwell there and they not to raise the rent and devised the House in which B. his Brother dwelt to him and that he pay to C. his Brother 3 l. for to find him at School and otherwise to remain to the House Proviso that the Houses shall not be sold but shall go to the next of the Name and Blood which are Male and dyed B. his brother dyed without Issue the eldest of the two middle brothers entred and had Issue a Son and dyed It was a Question If the Son or the middle brother should have the House And it was holden that the Son of the eldest should have it in Tail which Exposition was by reason of the words in the Proviso that it should not be Sold and that it should go to the Heirs Males Shuttleworth The rent shall not pass by the Devise for the construction of a Will ought to be according to the words or according to the intent collected out of the words and not by a thing out of the Will for then a stranger shall be the maker of the Will of another And 19 H. 8. if a Will be doubtful it ought to be expounded for the Heir at the Common Law. And if the rent ought to pass it ought to have apt words and not the name of a Manor And thereupon he put the Case that where one deviseth certain Lands to one and afterwards his Goods Leases and other things to another All his Goods and Terms shall pass but not his Lands for that there wanteth apt words to pass them for the word other things shall not pass them and this set order ought to be observed for the avoiding of confusion And the Rent and Services shall not pass for the two parts admitting the words sufficient for they cannot be divided But Periam said That the rent might be divided Anderson said That it should be but a Rent-seck Periam said it was a Rent distrainable of Common Right but Anderson doubted of it but they all agreed that it might be divided but there should not be two Tenures Fenner The Rent should pass by the Devise of the Manor for there is do difference betwixt a Manor and a Seigniory in gross amongst Lay-men and then their intent shall be taken although it was not written by apt words for in Grants a Reversion shall be taken for a Remainder and à Fortiori a Devise And 7 E. 3. a Manor shall pass by the name of a Knights Fee and 19 H. 8. a Wood shall pass by the name of Land and 38 E. 3. by grant of totam terram which A. held in dower the Reversion shall pass Afterwards in Mich. Term the Plaintiff discontinued his Ation And Periam told me I being at his House that the Opinion of the Court was against the Plaintiff and if it had not been discontinued they would have given Iudgment accordingly Now this was the intent of the Lord Mountjoy The
Marchioness had devised all her Lands and had not left any thing to her Heir for which Case the Heir of the Marchioness entred into the third part of the Manor of Cauford of which the Lease upon which the Ejectione firmae was brought was made by the Lord Mountjoy to Insley and into the third part of the residue of the whole land now his meaning was That if the rent was not well passed by the name of the Manor then the same descended to the Heir which was sufficient for him For the Special Verdict found also That the rent was the third part of the value of the whole Land of the Marquess So that thereupon it may be collected That if a man hath three Manors some of them holden in Capite and of equal value and he deviseth two of them and suffereth the third to descend that the Devise is good for every part of the two Manors and the Heir shall not have the third part of each Manor Pasc 28 Eliz. In the Common Pleas. CLXIII Spring and Lawsons Case ONe recovered in an Ejectione firmae and afterwards the Defendant made a new Lease for years and he who recovered ousted him and he brought an Ejectione firmae and the other pleaded the former Recovery It was holden a good bar by all the Iustices but Windham and Periam and by them the same is no Estoppel for the Conclusion shall be Iudgment if Action and not Iudgment if he shall be answered And although that it be an Action personal and in the nature of a Trespass yet the Iudgment is quod habeat possessionem termini sui during which Term the Iudgment is in force it is not reason that he should be ousted by him against whom he recovered for so Suits should be infinite and by Rhodes an Entry pendent the Writ shall abate it CLXIV Hil. 29 Eliz. In the Kings Bench. AN Action of Covenant was brought against one who had been his Apprentice The Defendant pleaded that he was within age The Plaintiff maintained his Action by the Custom of London where one by Covenant may bind himself within age Exception was taken to it that that was a Departure For 18 R. 2. an Infant brought an Action against his Guardian in Socage who pleaded that the Plaintiff was within age The Plaintiff did maintain his Declaration That by the Custom of such a place an Infant of 18 years might bring accompt against his Guardian in Soccage and it was there holden to be no departure Wray Chief Iustice was of Opinion that it was no departure for he said It should be frivolous to shew the whole matter in his Declaration viz. That he was an Infant and that by the Custom he might make a Covenant which should bind him But Quaere of the Matter and of his Opinion for that many learned Lawyers doubted much of it And vide the Case in 19 R. 2. of the Guardian in Soccage Mich. 29 30 Eliz. In the Kings Bench. CLXV Savage and Knights Case ERror was brought upon a Iudgment given in Leicester in Debt Tanfeild assigned Error because in that Suit there was not any Plaint for in all Inferior Courts the Plaint is as the Original at the Common Law and without it no Process can Issue forth and here upon this Record nothing is entred but only that the Defendant Summonitus fuit c. and because the first entry ought to be A. B. Queritur versus C. Clench a Plaint ought to be before any Process issueth and the Summons which is entred here is not a Plaint and for that Cause the Iudgment was reversed It was said That after the Defendant appeared a Plaint was entred But it was answered That that did not help the matter for there ought to be a Plaint out of which Process shall issue as in the Soveraign Courts out of the Original Writs 28 Eliz. In the Common Pleas. CLXVI Grindal Bishop of Yorks Case GRindal Archbishop of York made a Lease for one and twenty years another Lease for years of the same Land being in being not expired by four years and dyed and in time of vacation the Dean and Chapter confirmed it Clench It is a good confirmation A Bishop makes a Lease for years reserving the ancient rent but where it was payable at four Feasts of the year it is now reserved payable once in the year the same is within the Letter of the Statute but not within the intent the same Law if the Rent before was usually reserved to be paid upon the Land now it is reserved to be paid at any far remote place And he said that although his lease was in possession yet not to take effect before the four years of the former Lease are expired cannot be said an Estate within the Statute of 1 Eliz. whereby any Estate may pass before the commencement of it for he to whom it was made had but a right to have the Land and he could not surrender And he held that the second Lessee should pay the rent as well by the Contract as by the Estoppel Periam At the Common Law a Bishop with the Confirmation of the Dean and Chapter might have made a Feoffment Gift in Tail and a Lease for any Term of years and he spake much What shall be said the Possessions of a Bishop And therefore if a Bishop disseiseth another of certain Lands and makes a Lease thereof under the Seal of his Bishoprick it shall be now his Seal and it shall be his election in what capacity he will take and then this Land is to be reputed parcel of the Possession of his Bishoprick Mich. 29 Eliz. In the Common Pleas. CLXVII Hoo and Hoes Case JOhn Hoo brought a Writ of Intrusion against Richard Hoo depending which Writ the Demandant prayed Estrepement and had it and declared upon it scil That the Tenant after the Prohibition fecit Vastum Estrepementum in prosternendo c. To which the Tenant pleaded Not Guilty But the Plea was not allowed by the Court for there is no Issue in this Case but he might to plead Quod non fecit vastum c. after the Prohibition 29 Eliz. In the Common Pleas. CLXVIII Clinton and Bridges Case DEbt The Condition was for performance of an Award which was to pay 10 l. to the Plaintiff and to do divers other things The Defendant pleaded Quod perimplevit Arbitrium and shewed how the Plaintiff assigned for a Breach that the Defendant had not paid the 10 l. The Defendant rejoyned that he rendred it to the Plaintiff and he refused it It was the Opinion of Dyer that the same is a Departure for in the Bar the Defendant pleads that he hath performed the Award and shews how and now in the Rejoynder a Tender and Refusal which is not a performance of the Award although it is not any Breach of it 29 Eliz. In the Exchequer CLXIX The Bishop of L's Case Tenures THe Case of the Bishop of
or his Servant had put the Horse to grass and afterward the Horse is stollen there an Action upon the Case doth lye Trin. 29 Eliz. In the Common Pleas. CXCVII Neals Case IN a false Imprisonment by Neal against the Mayor Sheriffs Citizens and Commonalty of the City of Norwich the Original Writ was directed to the Coroners of the said City And Exception was taken to the Writ because it was not directed to the Sheriffs of the said City but to the Coroners Sed non allocatur for the Sheriffs are parcel of the Corporation as it is to see by the name by which they of Norwich are incorporated And also it hath been adjudged That a Sheriff cannot summon himself and therefore by the Award of the Court the Writ was allowed to be good Trin. 29 Eliz. In the Common Pleas. CXCVIII. Sir John Bromes Case SIr John Brome 33 H. 8. acknowledged a Fine of certain Lands the Kings Silver was entred and the Conusans taken but the Fine was never engrossed and now he who claimed under the Fine came in Court and prayed that the Fine might be engrossed and the Court examined them upon their Oaths to what use the Fine was levied and in the Seisin and Possession of what persons the Lands whereof the Fine was levied had been after the Fine Vpon which Examination it appeared fully to the Court that the Party to whom the Fine was levied was seized after the Fine and suffered a Common Recovery of the Land and that the said Land had been enjoyed according to the said Fine at all such times since c. Whereupon the Court commanded that the Fine be ingrossed Vide Acc. 8 Eliz. Dyer 254. Trin. 29 Eliz. In the Exchequer CXCIX The Lord Dacres and Philip Fines Case THe Case between the Lord Dacres and Fines was Tenant in Tail in remainder upon an Estate for Life of Lands holden in Capite levied a Fine thereof without Licence 3 Leon. 261. and Process issued against the Tenants for Life It was holden by all the Barons that by Plea he should be discharged it was holden That if the Conusor had any other Lands ubicunque in Anglia the Fine for Alienation should be levied upon them But it was moved If the Tenant should be driven to plead it because it appears upon Record that the Conusor was but Tenant in Tail in Remainder and that was in an Office containing such matter which was pleaded by another in another Cause before by which Office it appeared that the Lord Dacres was Tenant in Tail the Remainder in Tail to Philip Fines and now Fines had levied a Fine sur Conusans de droit c. and because the same appeared on Record Manwood awarded that the Process against the Tenants of the Lord Dacres should be stayed Trin. 29 Eliz. CC. Paston and Townsends Case IN Trespass by Paston against Townsend The Defendant pleaded that Tindal was seized in Fee by protestation and dyed seized and the Land descended To which the Plaintiff replyed and said c absque hoc that Tindal was seized in Fee upon which they were at Issue On the part of the Defendant to prove the Issue it was given in Evidence to prove the Issue in his right that the said Tindal long time before his death was seized and aliened and never after was seized It was said that that Evidence did not prove the Issue for the Defendant for the Seisin in Fee intended in the Issue is in the nature of a dying seized and so Periam conceived that the Defendants Plea did not intend any other Seisin a dying seized and the dying seized is taken by Protestation to avoid the doubleness So as the Seisin upon which the Issue is taken ought to be intended a Seisin continuing until the time of the death of Tindal and Seisin at large or a general Seisin at any time during the life of Tindal quod Anderson concessit Trin. 29 Eliz. In the Kings Bench. CCI. Griffith and Prices Case ERror by Griffith against Price upon a Iudgment in Chester in Ejectione firmae and the Error assigned was because the Original bore date 16 April 28 Eliz. and the Plaintiff declared of an Ejectment 17 April 28 Eliz. So as it appeareth that the Action was brought before there was any cause of Action and that was holden to be Error And also Ejectione firmae is not a personal Action and afterwards the Iudgment was Reversed Trin. 30 Eliz. In the Kings Bench. CCII. Harris and Caverleys Case A Iudgment was given in London between Harris and Caverley upon the Statute of 5 E. 6. for buying of Woolls and upon that Error was brought in the Kings Bench quod nota For this Writ of Error upon a Iudgment given in London ought to be sued before the Maior Vide â— N. B. 22 23. And Wray asked Wherefore the Writ of Error was brought here To which it was answered by Dodding Clark that the Record was removed by Certiorari out of the Kings Bench at the Suit of the Defendant to the purpose to bring a Writ of Error quod coram vobis residet And the Error was assigned in this that by the Statute of 18 Eliz. cap. 5. it is enacted that upon every Information that shall be exhibited a special Note shall be made of the Day Month and Year of the exhibiting of the same into any Office or to any Officer who lawfully may receive the same And here upon this Information there is not any such Note according to the said Statute And in truth no Information may be exhibited for there is not any Officer there appointed for that matter for the entry in such Cases in that Court is Talis venit deliberavit hic in Curia Miloni Sands c. But in the Case at Bar the Entry is Talis venit deliberavit in Curia but without shewing to whom But note that the words of the said Statute of 18 Eliz. are in the disjunctive into any Office or to any Officer and that such Information shall not be of Record but from that time forwards and not before wherefore here this Information is not upon Record and then no Iudgment can be given upon it Cook This Information may be well sued in London for the words of the said Statute of 5 E. 6. give Suit in any Court of Record of the King And the Court in London is a Court of Record of the King and every Court of Record hath an Officer to receive Declarations and Pleas and if it be delivered into the Office it is good enough 2. The Offence is laid in the Parish of Bow in Warda de Cheap alibi in Civitate London and so there is not any place laid where the Offence shall be tryed Cook This Alibi is a Nugation Trin. 31 Eliz. In the Kings Bench. CCIII Peuson and Higbeds Case IN Assumpsit the Plaintiff declared that in consideration that he by his Servant had delivered to the Defendant two Bills
upon all that matter it was holden that the said Francis was inheritable 19 Eliz. In the Kings Bench. CCXXIV. Grey and Edwards Case IN an Attaint by Grey against Edwards it was holden by Wray Gaudy and Jeoffries That if one makes a Deed and that by these words Dedi conveyeth Lands to another without any words of Bargain and Sale and that for a sum of mony If the Deed be debito modo enrolled the use shall pass as well as if the words of Bargain and Sale had been in the Deed because that a sum of mony was paid for the Land. 19 Eliz. In the Kings Bench. CCXXV. Webbs Case IN Action upon the Case the Plaintiff declared That whereas Cobham was indebted to J. S. and J. S. to the Defendant the said Defendant in consideration that the Plaintiff would procure the said J. S. to make a Letter of Attorney to the Defendant to sue the said Cobham promised to pay and give to the Plaintiff 10 l. It was objected Here was not any Consideration for to induce the Assumpsit for the Defendant by this Letter of Attorney gets nothing but his Labour and Travel But the Exception was not allowed of For in this Case not so much the Profit which redounds to the Defendant as the Labour of the Plaintiff in procuring of the Letter of Attorney is to be respected Temps Roign Eliz. CCXXVI Heggor and Felstons Case IN Trespass the Case was A Copyholder surrendred to the use of his Wife for Life and after to the use of his Daughter in Fee the Wife is admitted It was holden that the Daughter after the death of the Wife Copyholder Surrender by Attorney might without any admittance surrender the same Land for the first admittance was sufficient And Manwood said that Roper was Steward of a Mannor and one of the Copyholders of the said Manor being in Ireland he made a Commission to one to receive a Surrender from him there and it was holden a good Surrender CCXXVII Trin. 32 Eliz. In the Exchequer NOte by Manwood chief Baron for a Rule to all Counsellors That they do not advise any Collectors of Subsidies or Fifteens to exhibite any Bills in the Exchequer Chamber for the not payment of Subsidies for such Bills shall not be allowed hereafter because they have remedy by Distress Also it was That if any be assessed for the Fifteens which he ought to pay or if two Towns ought to pay together and one Town be taxed more than it ought to be or hath been accustomed those who are grieved by such Assessment may have a Commission out of the Exchequer which is called ad aequaliter taxand and that was put in practice in a case between Bartace and Hind where one of these was Lord of Little Marlow and the other of Hedsore It was also holden That Fifteens are to be levied of Goods and Chattels properly and a Township is sometimes richer than at other times and therefore it is not reasonable they pay their Fifteens always according to the same proportion But Clark Baron held where the Custom hath always been that the Fifteens shall be taxed according to the quantity of Acres then the rate and proportion shall be always on whosoever holdeth the Land. And as to the Commission ad aequaliter taxand Manwood and Fanshaw said That they could shew twenty Presidents of it Trin. 30 Eliz. In the Kings Bench. CCXXVIII Harris Case THe Case of Harris of the Middle Temple was Tenant in tail in remainder upon an Estate for life is attainted of Felony 2 Leon. 122. Hughs Qu. 13. 3 Leon. 185. 1 Inst â— If he hath forfeited his Remainder during his Life Popham Attorney General He hath forfeited it to the Queen for after his attainder the Law will not suffer it to remain in him and it cannot vest in the Lord of whom the Land is holden for the person attainted being Tenant in tail in remainder was not very Tenant to the Lord therefore if in none of them the Queen shall have it and the Law shall punish the offence so sharply that it suffer nothing to remain in him So Tenant in Dower and by the Courtesie And it is a Maxim What a man hath in his own right he may forfeit but it is not a certain rule Whatsoever a man may grant he may forfeit as Guardian in Socage and Executors may grant that which they cannot forfeit 2 Leon. 126. A man seized in the right of his wife is attainted of Felony the Queen shall have but the profits of the Land during the life of the Husband Vide Register 292. Where the husband seized in the right of his wife of certain Lands is outlawed of Felony the King seizeth and hath the Lands during the life of the husband after the death of whom issued a Diem clausit extremum Vide F.N.B. 254. D. Cook Tenant in tail in possession is attainted of Felony the King shall have but the profits but as our Case is being Tenant in tail in remainder upon an Estate for Life nothing shall be forfeited during his life and after the death of the Tenant in tail so attainted of Felony the Issue in tail may enter for the King hath not the Freehold for if the King had the Freehold the Issue in tail could not enter without Office vide Old Natura Brevium in the Writ of Escheat That the King shall have only the profits At another day it was argued by Egerton Solicitor That the Queen hath the Interest of him in the Remainder during his life for a man so attainted cannot be receiv'd against the Queen and if a man attainted of Felony purchaseth Land and dyeth his wife shall not be endowed of it And he said that this Remainder vested in the Queen without Office then not pardoned by 23 Eliz. It hath been objected That if the Remainder be in the Queen without Office by this attainder of Felony by the Common Law then also in case of attainder for Treason and then what need was there that the Statute of 33 H. 8. should be made which enacteth That in cases of Treason it shall vest in the King without Office. As to that I answer That that Statute was made in affirmance of the Common Law and also for other things given to the King by the Statute which were not given by the Common Law as Conditions Rights c. So as the King might grant over without Office and also the Subject have a Petition of Right before Office which was not at the common Law 33 H. 8. 20. in the saving in the end of it And as to the Statute of 18 H. 6 cap. 6. such things were in the King without Offce for by the common Law before Office the King might grant them but he could not grant them if they were not vested in him and the said Statute was made to such intent that the Queen should be fully informed of her Title c. by
that It was agreed by the Court that that had been a good Exception if the matter had not been relieved by the Statute of 27 Eliz. of Demurrers Another matter was objected upon the Statute of 32 H. 8. cap. 37. upon the words of the said Statute so long as the Lands remain in the possession of the Tenant in Demeasn who ought immediately to have paid the said Rent And it was said by Anderson and Rhodes that the Conusans was good enough and within the relief of that Statute For Lewknor was the immediate Purchaser and although he had let the Lands to another at will that did not make any thing for yet the Estate of the Land is within the words of the Statute for the Land remains in the Seisin of the first Purchaser And note that in this case Bouchier dyed before the Lease expired so as the Rent was not determined in his life And afterwards Iudgment was given for the Defendant Mich. 30 Eliz. In the Kings Bench. CCXXXV Rawlins and Somerfords Case IN Ejectione firmae the Case was Cartwright possessed of a house for the term of 30 years demised a Stall parcel of it to Wartow for two years and afterwards assigned the whole house to Rawlins for all the years Rawlins redemised the same Stall to Cartwright for twenty years but Wartow did not attorn but before the said Redemise Cartwright by Deed indented demised the said Stall to Wartow for six years after the said two years ended and afterwards Rawlins redemised all the house to Cartwright for 21 years rendring rent with clause of re-entry and upon the Indenture of the said Redemise was endorsed that before the sealing and delivery c. it was agreed between the Parties that Wartow should have the said Stall according to the Lease for six years to him made And afterwards Cartwright redemised the said Stall to Rawlins for ten years and afterwards the Rent was behind And if the Rent reserved by Rawlins upon his demise to Cartwright was suspended or not was moved a question Cook argued it was not suspended for Rawlins had in the Estate but an Interest in futuro which cannot suspend the Rent before in possession And he put the Case 31 E. 1. Fitz. Discent 17. Lord and Tenant the Tenant is attainted of Felony and dyeth now the Seignory is not presently extinct For if the Lord takes Fealty of the Son the Seignory doth continue in Esse and Vide Acc. Fitz. N. B. 144. 26 E. 3. 72. Houghton the rent is suspended as if I lease Land and an Advowson rendrint rent and I take back an Estate in the Advowson now the rent is suspended But as to that it was answered That there the party hath a present interest in the Advowson but so it is not in the Case at Bar. And by Cook A. seized in Fee of three Acres makes a Lease of two of them for 21 years rendring rent and afterwards the Lessee leaseth one of the said Acres for years to the Lessor to begin two years after it is not a present suspension of the rent until the Lease come into possession c. And afterwards it was adjudged that by the Lease in futuro the rent was not suspended Pasch 28 Eliz. Rot. 255. Mich. 26 Eliz. In the Exchequer CCXXXVI The Guardians of the Monastery of Otleries Case IN the Exchequer it was found by Special Verdict 1 Leon. 4. That the Guardian and Chanons Regular of Otlery were seized of the Manor of O c. and that 22 H. 7. at a Court holden granted the Lands in question to W. and W. his Son for their lives by Copy according to the Custom of the said Manor and afterwards 30 H. 8. they leased the same Land by Indenture to H. rendring the ancient and accustomed rent and afterwards surrendred their Colledge c. and afterwards W. and W. dyed And if the said Lease so made during the Estate Customary notwithstanding the Statute of 31 H. 8. were good or not that was the Question being within a year before the Surrender c. And it was argued by Egerton Solicitor That the said Lease was void by the Statute the words of which are Whereof or in the which any Estate or Interest for term of Life year or years at the time of the making of any such Lease had his Being or Continuance and was not then determined finished or expired And therefore we are to see if this right or possession which W. and W. had at the time of the making of the said Lease was an Interest or Estate for Life And as to the word Estate est nihil aliud than measure of time for an Estate of Fee-simple is as much as to say an Interest in the Lands for ever and so of the rest and therefore W. and W. had at the time of the making of the Lease an Estate for the thing demised And although such Customary Tenants are termed in Law Tenants at will yet they are not simply so nor meer Tenants at will but Tenants at will secundum Consuetudinem Manerii which Custom warrants his possession here for life and therefore it is a more certain estate than an estate at will for the Copyholder may justifie against his Lord and so cannot a Tenant at will whose estate is determinable at the will and pleasure of his Lessor and although this estate is but by custom and by no conveyance yet it is such an estate which the said Statute intends non refert by what conveyance the estate is raised so it be an estate and this estate being supported by custom is acknowledged in Law to be an estate and so accounted in our Law and the Law hath notably distinguished Copyhold tenancies by the custom and tenancies at will at the Common Law for a Copyholder shall do fealty and have aid of his Lord in an Action of Trespass he shall have and maintain an Action of Trespass against his Lord his wife shall be endowed the husband shall be Tenant by the Curtesie without a new Admittance So customary Tenancies are within the Rules and Maxims of our Law As in the Case of Horewood There shall be a possest o fratris of it without admittance and it was adjudged 8 Eliz in the Kings Bench That if a Copyholder surrender to the use of another for years and the Lessee dyeth his Executors shall have the residue of the term without any admittance M. 14 15 Eliz. A Copyholder made a Lease for years by Indenture warranted by the custom the Lessee brought Ejectione firmae it was adjudged maintainable in the Common Pleas Although it was objected That if it be so then if the Plaintiff recover he should have an Habere facias possessionem and there Copyholds should be ordered by the Common Laws of the Land. 10 Eliz. Lord and Copyholder for Life the Lord grants a Rent-charge out of the Manor whereof the Copyhold is parcel the Copy-holder surrendreth to the use of
by a Writ of Right So if the Vouchee had entred and lost c. As to that Case we ought to consider That every Book reported in our Law is not Law But let us observe of what Authority the Case is truly it is the conceit of the Reporter himself for he puts the Case and resolves it but there is no Iudge or Serjeant named in the Case c. The other Case is 5 E. 4. 2. Note by Hendon clearly If my Tenant for life voucheth a stranger who entreth into the Warranty generally and doth not know how to bar the Demandant the Tenant shall recover in value and the reversion of him who hath in value shall be to me in lieu of my former reversion as release to Tenant for life shall enure to him in the reversion But that is but the Opinion of one Serjeant c. But I answer to these Books If the Demandant in such recovery have a good title so as the Tenant or the Voucher as Hendon saith know not how to bar the Demandant there such a Voucher of a Stranger is not a Forfeiture nor such recovery suffered thereupon for against his will and volens nolens he suffered it But if the Tenant had good matter to bar the Demandant and no good cause of Voucher that the vouching of a stranger or suffering of a recovery is a Forfeiture of his Estate And here in our Case the Defendant had not any title The Tenant or Vouchee had not any Warranty or cause of Voucher But the Tenant might have barred the Demandant if he pleased And he said That the Voucher only doth not make the Forfeiture but much rather the Recovery for when Iudgment is given and Execution had then is the Fee plucked out of him in the reversion 6 R. 2. If Tenant for life claimeth a Fee it is a Forfeiture but here Pelham hath done more for he hath gained Fee by the Iudgment therefore à Fortiori it shall be a Forfeiture But let us a little see what medlings or attempts by the particular Tenant are causes of a Forfeiture and what not 5 Ass 3. Where A. brings an Entry against Tenant for life by collusion to oust B. of his reversion supposing that the Tenant for life held of his Lease The Tenant confesseth the Action upon which Iudgment is given B enters and his entry adjudged lawful for that recovery is adjudged in Law but an Alienation to the disinherisin of him in the reversion and here it appears That such recovery by Covin is but an Alienation and without any strength of a recovery And he cited many other Cases cited before by Altham 14 E 3. Resceit 135. Where Tenant for life pleads in chief or prays in aid of a stranger where he might bar the Demandant and will not it is a Forfeiture And also 22 E. 3. 2. 27 E. 3. where Tenant for life in a Quid juris clamat Attorns unto the Conusee upon a Fine levyed by him who hath not any thing in the Land the same is a Forfeiture and yet that Attornment doth not divert the Reversion out of the Lessor 50 E. 3.7 8. Land was given by Fine in tail the remainder over to a stranger in Fee the Donee took a Wife and dyed without Issue the Wife accepted Dower assigned by a stranger he in the Remainder brought a Scire facias against the Wife that she is Tenant in Dower of the Assignment of a stranger and pleaded to the Title the Demandant recovered she hath lost her Dower for she hath not pleaded dutifully as she ought being a particular Tenant Temps H. 4. Tenant for life loseth his Land in a Recovery against him against his will and thereupon brings Quod ei deforceat and declares upon an Estate tail and recovers the same is a Forfeiture because he hath challenged a higher Estate c. 5 H. 7. Tenant for life joyns the Mise upon the meer Right 2 H. 6. Lessee for years being ousted brings an Assise and recovers 1 H. 7. Accepts a Fine of a stranger sur Conusans c. come ceo que il ad de son done All these are Forfeitures In our principal Case here the Tenant who suffered the Recovery did not plead at all to defend the Right but where he might have barred the Demandant he gave strength to his pretended Title and made it a perfect Title and by suffering the Recovery and Iudgment to pass had taken away the Reversion out of the Lessor to whom he owed Fealty and therefore it is a Forfeiture And without doubt it is apparent to the Court that the Demandant in this Recovery hath not any Title for the Recoverers in such Cases are but Assignees and Purchasors which appeareth by the Statute of 7 H. 8. cap. 4. which gives Distress and Avowry to Recoverers c. As to the inventing of Recoveries it was a necessary Device for it was to take away Estate tails which were the causes of grand Mischiefs and Inconveniencies in this Realm and it was great reason for Tenant in tail might by the Common Law alien his Land post prolem suscitat and then he had an Inheritance and might commit Waste But he was so restrained by the Statute of Westm 2. all the Realm and the Subjects of it were inveigled thereby Ioyntures of Wives Leases of Farmers Mortgages to Creditors Statutes and other Assurances defeated by their deaths which was against the Common Law and all Conscience These matters tending to the knowledge of the Iustices and the Mischiefs thereupon ensuing very frequent and that Tenant in tail was become a perillous Fellow and there was no safe dealing with him Then they taking into consideration that several Warranties and Assets and collateral Warranty without Assets for that in it self implyed Assets did bar him Icil. the Entail upon that consideration they grounded the practice and usage of common Recoveries so that by that means Tenant in tail has potestatem alienandi as he had at the Common Law because his authority was restored to him and injury done to no man But as to Tenant for life he never had potestatem alienandi And as to that which hath been said That the Recovery shall stand in force till after the death of the Tenant for life and in our Case here Tenant in tail is living certainly if the Law should be such great mischief would follow for then greater Ioyntresses the Widows of great Persons having allowed unto them great and sumptuous Houses and Lands furnished with Timber of great value might suffer such Recoveries and so having plucked the Fee out of the Heirs might commit Waste and the same should be dispunishable c. which should be an intolerable Mischief And so he concluded that this suffering of a Recovery was a Forfeiture and Iudgment was given accordingly CCLII Grendon and Albanies Case JOhn Grendon brought Trespass for breaking of his Close against Tho Albany And upon the pleading the Case
the Statute of 33 H. 8. gives to the King Conditions yet it doth not give the performance of them or ability to the King to perform them And there are three Reasons wherefore this Condition cannot pass to the King 1. There is a Condition in the Proviso which precedes the Condition of the Tender viz. If the said Francis my Nephew be given to intolerable Vices then if the said Sir Francis deliver or offer c. and in the whole pleading it is not averred that the Nephew was given to intolerable Vices therefore the precedent Condition not being performed the second Condition is not ripened nor in season 2. The substance of this Condition consists in the will and pleasure of Sir Fr. Englefield therefore it cannot be given to the Queen 3. The prejudice which should come to Francis the Nephew if this Condition should come to the Queen Vide Br. Temps H. 8. A Foundership cannot Escheat or be forfeited by Attainder of Felony or Treason for it is a thing annexed to the Blood which cannot be separated and he said also that the Condition was gon before that tender for the Conveyance by which the Condition was granted was made void by the Act of 29 H. 8. cap. 3. by which it is Enacted That every person within two years after the last day of this Session shall openly shew and bring forth into the Exchequer his Conveyance and there in the Term time in open Court shall Exhibit the same to be entred and inrolled of Record and here the end of the Session was such that all the Terms of the said two years were passed before the tender made by the Queen and although the two years were not past yet all the Terms were past and the Conveyance ought to be shewed in Term time therefore the true time is incurred before the Tender and then the Conveyance is void and by that the Condition gon When the Queen was Tenant for the life of Sir Francis and makes a Lease for years and afterwards by the Condition hath the Inheritance if now she shall avoid the Lease made by her when she was Tenant for life A Disseisor makes a Lease or grants a Rent-charge and afterwards the Disseisee releases unto him he shall not avoid his own Act. A man seized in the right of his Wife makes a Lease for years hath Issue and so is intitled to be Tenant by the curtesie the Wife dyeth he shall not avoid his Lease Feoffor and Feoffee upon condition joyn in a Lease for years the Condition is performed on the part of the Feoffor he shall not avoid his Lease And the Prerogative of the Queen shall not alter the matter against aequum bonum As to the Statute of 29 Eliz. it was not the intent of that to avoid Estates claimed for or by the Queen for the Estate was made for the benefit of the Queen As to the words of the Statute every person or persons which hath or claimeth to have c. the Queen is not within the words If a Statute ordains attendance or restraint of any Liberty which was before at the Common Law there the Queen shall not be within it As to attendance the Queen is not bound to make claim upon a Fine levied As to re-grant the Queen is not bound by the Statute of Westm 3. Quia emptores terrarum also where matter of penalty is imposed Also here is an Oath to be taken c. the Queen being Tenant for the life of another leaseth the Woods and grants to the Lessee power to cut the Woods and convert them to his own use Now if after the Inheritance cometh to the Queen if the Queen may impeach her Grantee truly the property of the Woods and Trees was in the Queen at the time of the Grant and although the Inheritance came to the Queen afterwards yet the same shall not overthrow the first Interest of the Grantee Lessee for life or for years before the Statute of Gloucester could not be impeached for Waste therefore as I conceive the property of the Trees was in him for there was no remedy for them against him See the reason of that in Dr. and Student Quasi the property of the Trees pass to the Lessee with the Demise which shall be taken strongly against the Lessor If the Lessee cutteth the Trees the Lessor shall not have Trespass against him nor Detinue for the Trees Lessee without impeachment of Waste cutteth the Trees and leaves them upon the Land and dyes his Executors shall have them and not the Lessor The Lessor grants omnes boscos arbores suas nothing passeth for they pass to the Lessee if they be not excepted The Lessor against his own Lease cuts the Trees without the agreement of the Lessee Trespass lyeth 5 H. 4. 56. The Heir being in Ward cut Trees in his Lands in the possession of his Guardian who brought an Action against the Heir it was adjudged maintainable although the Free-hold was in the Heir Egerton Solicitor to the contrary Admit the use in Sir Francis be the ancient use yet it is but for life and then when the Queen having the Estate of Sir Francis makes a Lease for 40 years with the grant of the woods the said Lease was void for the Queen was deceived in her Grant Sir Francis was punishable for Waste therefore the Queen having his Interest ought not in Iustice to have cut the great Wood. And it is to be presumed That if the Queen had known the smallness of her Estate she would not have made so great a Lease nor such a Grant of the Wood. The King seized of Land in his own right reciting by his Letters Patents that he hath it by Attainder of J. S. gives the same to another the Gift is void The King licenceth one to appropriate an Advowson without being informed that the same is holden in chief it is void A licence to alien whereas in truth the Land is holden in tail the Reversion or Remainder in the King is also void and here in our case the Queen hath but a particular Estate for the life of another and here out of that petty Estate is drawn a Lease for 40 years where Lessee for life was 60 years of age at the least and also a Grant of all the Trees If the Queen hath a particular Estate and grants totum Statum suum without reciting of such particular Estate the Grant is void the Queen hath the Profits of the Lands of one who is Outlawed in a personal Action and grants to another the Land it self it is void for it is a wrong to a third person which the King cannot do But here the Special Interest of the Queen ought to be recited Now when the Queen being Tenant for the life of another makes Leases ut supra and afterwards the Fee cometh to the Queen the Estate out of which the Leases are derived being determined the Leases also are determined scil
the Estate for the life of another by the accession of the Fee-simple and the Queen is in by a new right It was adjudged 29 Eliz. here That where the Queen had the Land of a Fugitive for the life of another and leased the same to another Quam diu in manibus nostris fore contigerit and after the Fee-simple of the Fugitive came to the Queen by his Attainder the same Lease was void King E. 6. gave to his Sister Mary Manerium de B. for her life secundum tenorem effectum Testamenti sive ultimae voluntatis of King Hen. 8. whose Will was that she should have it as long as she remained unmarried she granted a Rent-charge King E. 6. dyed by which the Fee descended to the said Mary being Queen of England and afterwards she married He made it a Quaere if the Rent be not gone Dyer 3 4 Phil. Mary 240. But Bendloes Reports the same Case to be adjudged That the Rent was gone Sir Francis Englefield 1 Eliz. with leave of the Queen went beyond Sea his Licence expired the Queen directed to him a Privy Seal with her Commandment to return which he received but did not return but adhered to the Queens Enemies there upon which the Queen seized his Lands and 8 Eliz. granted a Manor parcel thereof and all profits thereof quam diu in manibus nostris fore contigerit afterwards by Act 14 Eliz. for there was some doubt if the Queen might make Leases grant Copyholds or usual Woodfalls of such Lands or only take the ordinary profits thereof as vesturam terrae it is explained that during the Interest of the Queen she might do ut supra as Tenant for the life of another might do upon which a new Seizure was made for the Queen and a Steward appointed by the Queens Letters Patents who held a Court and took Surrenders in the hand of the Queen and granted Admittances c. And it was resolved by the two Chief Iustices That the two Seizures gave not the Queen any other or better Seisin in the said Manor than she had before by the first Seizure at the Common Law notwithstanding both the said Statutes and so the Courts holden by the Queen void and all Surrenders and Admittances also And so it is adjudged 23 Eliz. Dyer 375. upon which it may be concluded That if by the said Statutes or any of them had had a new right the last Copy had been good notwithstanding the Grant of the Manor before Also for 8 Ass the King grants Custodiam terrae haeredis quam diu in manibus nostris fore contigerit the Heir being a Daughter and after a Son is born now the Grant of the King is void Tenant in tail the Reversion in the King discontinues the Discontinuee is attainted the King seizeth and leaseth for years Tenant in tail is attainted of Treason now the Queen shall avoid her own Lease So if the Disseisor be attainted upon which the Queen seiseth and leaseth and afterwards the Disseisee is attainted And he cited the Case of the Abbot of Colchester 13 Eliz. The Abbot committed Treason and afterwards by the Statute or by Surrender the Abby came to the Crown who leased the Land for years the Abbot is attainted of the said Treason now the King shall be seized by force of the Attainder and shall avoid his Lease As to the Leases made to the Defendant by the Queen one was made after the Statute of 29 Eliz. and the same is not saved by the saving there for the words are of Estates then in esse 1. Such Estate as they had before the making of the Act As to Leases made before they are drowned in the Fee-simple which accrued to the King by the Attainder c. and here by this Statute the Estate of the Queen for the life of another is not saved by the Statute and then the Leases derived out of it are not saved The Queen is not bound by the said Statute to exhibit any Conveyance for she shall not take any Oath according to the Statute and if the Queen be not within the Body of the Act she is not within the saving Now as to the Condition The Statute of 33 H. 8. gives to the Queen Vses Rights Conditions It hath been Objected That such Conditions are intended to be given to the King which are to be performed on the part of the Donee Lessee Grantee Covenantee but not on the part of the Grantor c. For it was in the will of the Grantor if he would perform them or not and a Will cannot be transferred over But as to that it may be answered That a Will by Parliament may be transferred over for Parliamentum omnia potest It hath been Objected If that shall be said the Will of Sir Francis which now is the Will of the Queen it shall be a great prejudice to Francis Englefield the Nephew for now he shall be doubly bridled by his Vncle and by the Queen It hath been Objected That here is a Conditional Condition 1. If the Nephew shall be given to intolerable Vices and it is not added to enable the Queen to take advantage of the Condition that he is otherwise than of good behavior and conversation but the words of the Proviso clear the matter 1. Lest he should be given to intolerable Vices and not if he be given c. So as it is not a Condition to a Condition but a Motive to a Condition And the Statute of 29 Eliz. by which Sir Francis was attainted gives to the King all conditions It hath been objected that in the said Statute of 29 Eliz. is a saving by which Leases made by the Queen are preserved But if that Proviso be well observed it doth not extend to our case 1. That Act extends to make void any Grant Lease c. made by the Queen after the Treason committed c. but that shall be of such force as if the said Act had not been made As to that I say That this Statute doth not add or detract from such Leases but leaves them as it found them for the Statute gives to the Queen the Condition which Condition avoids the said Leases for it avoids the Estate of the Queen out of which the said Leases are derived And although that the Conveyance as to the benefit of Sir Francis or his Nephew be void by the Statute for not Inrollment of them yet it is not utterly void as to the Queen also The Statute of 1 Eliz. Enacts That Leases made by Bishops against the Form of the Statute shall be void Yet they shall not be void against the Bishop himself or against the Lessor Exception hath been taken for that the tender of the King is not found by Office But he needs no Office for the tender is the Act of the Queen her self there she ought not to be informed of it for to what purpose shall the Queen be certified
of that which she her self hath done The Queen makes a Lease for years upon Condition that the Lessee surrender to her the Manor of B here for the not doing of it no Office is requisite Tenant of the King in Capite aliens by Fine that needs no Office for that appears upon Record so here And although the Condition be returned in the Exchequer after the Term yet it is well enough for the Exchequer is never shut as to take and receive Money Certificates made to be Inrolled although it be shut as to all Iudicial Acts. And although no tender at all be certified it is not to the purpose for the tender makes the Estate void without any other thing And it is not like to a Capias ad satisfaciendum for that is Ita quod Habeas Corpus c. therefore the Arrest is not sufficient by it self but the same ought to be remembred with an Ita. quod c. But as to that which hath been said That the Queen shall not avoid her own Lease the same is not so nor in case of a common Person As if Tenant in tail enfeoffeth his Heir within age who makes a Lease for years at his full age Tenant in tail dyes Now the Issue shall avoid his own Lease for he is remitted A Disseisor levies a Fine to a stranger the Disseisee enters upon the Conusee and enfeoffs the Disseisor now he shall avoid his own Fine à multo fortiori in the Case of the King. Now it is to see If the Grant of the Wood by the Queen being Tenant for the term of anothers life be good or not He conceived it was not for she was deceived in her Grant not knowing that she was but a particular Tenant It was Objected That the Queen hath property and right in the Trees and Woods forasmuch as no Waste or Trespass lyeth against her if she cast them down Certainly the Lessee if the Trees and Woods be not excepted hath the property in them but not the absolute property for the Writ of Waste shall say ad exhaered ' Qâ—erentis for he cannot cut them Id enim tantum possumus quod de jure possumus perhaps the Lessee shall have the Wind-falls because they are severed from the Inheritance by the act of God not of the Lessee himself and see 27 H. 6. Waste 8. and also in Statham titulo Waste A. leaseth to B. for life without impeachment of Waste a stranger cuts Trees and the Lessee brings Trespass he shall not recover damages for the value of the Trees for the property of the Body and the Tree is in him who hath the Reversion he may give it by which it appeareth that the Lessee is not to recover but only for the cropping and the breaking of his Close à fortiori in case where the Lease is made without the clause absque impetitione vasti as the Case at bar is And therefore when the Queen having so feeble an Estate makes such a Grant scil Grants all the Woods c. the Grant is void for she was deceived in her Grant by which if it should be good she should wrong her Subject A Grant to the Queen shall have a reasonable construction as the Grant of a common Person A. grants to the Queen Common in all his Lands the Queen by that Grant shall not have Common but in Lands commonable not in his Land where his Corn is growing or in his Orchard or Gardens Tenant for life grants all the Wood upon his Land nothing passeth but that which he may lawfully grant So in Cases of Grants of the King 22 Ass 49. the King grants to one bona catalla tenent ' suorum fugitivorum qualitercunque dampnorum the Grantee shall not have the Goods and Chattels of one who hath killed the Kings Messenger So in Grants of Amercements the Grantee shall not have a Special Amercement c. So here the Grant of all Woods ought to be intended of such Woods as Vnderwoods which the Queen might lawfully grant without wrong to another And he said That when the Queen hath granted the Land and the Woods for 40 years that Grant cannot be divided and the words of the Grant are That it shall be lawful to cut the Woods during the space of 43 years Now forasmuch as the Lease is surrendred ut supra the liberty of cutting the Woods is gon also A man bargains and sells his Manor with all Woods upon it growing the Deed is not Inrolled so as the Manor doth not pass the Woods shall not pass in gross for the Grant shall not be divided See more after Sect. 276. Trin. 31 Eliz. In the Kings Bench. CCLIV Brown and Peters Case PHilip Brown Executor of Eliz. Brown brought an Action upon the Case against John Peter as Executor of W. Brown and declared That the said William Brown was indebted to the said Eliz. in 80 l. Cumque ad specialem instantiam of the said William Brown It was agreed that the said William Brown should retain the said Sum in his hands until the said Eliz. should come of full age In consideration thereof he promised to give her 100 l. It was found for the Plaintiff who had Iudgment to recover and now the Defendant brought Error and assigned for Error because the place of the Agreement was not shewed Sed non allocatur for that is the Consideration which is not traversable also it is not shewed certain that Brown retained the 80 l. for so long time Sed non allocatur for he shews in his Declaration That the said Sum was in the hands of the said William Brown and it shall be intended that so it there continued Trin. 31 Eliz. In the Kings Bench. CCLV. Higham and Cookes Case EJectione firmae by Higham against Cooke The Plaintiff declared upon a Lease for years to have and to hold to him from the Sealing and Delivery of it and declared that the Sealing and Delivery was 1 Maij and the Ejectment the same day And this matter was moved in Arrest of Iudgment that the Ejectment could not be supposed the same day for the Lease did not begin till the next day ensuing the Sealing Ejectment c. But the Exception was not allowed by the Court for where the Lease is to begin from the time of the Sealing and Delivery or by these words for 21 years next following the Ejectment may be well supposed to be the same day for the beginning of the Lease is presently upon the Sealing and Delivery and such a Lease shall end the same time and hour as it began CCLVI. Trin. 28. Eliz. In the Kings Bench. IN an Action upon the Case upon Assumpsit the Case was Land was devised to a Feme-sole for term of her life and she let the same to the Plaintiff for 5 years to begin after the death of the said Woman and afterwards by Deed bearing date 18 October leased the same Land to the same Plaintiff
shall be special and shall make special recital of the Estate And so is the Case 26 H. 8. 6. where Cestuy que use makes a lease and the Lessee commits waste there the Action was brought by the Feoffees containing the special matter and it was good although there was 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 special matter to the Court. And 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 special Heirs of the Body and so the Court was of Opinion that the Writ was good notwithstanding that Exception And Anderson and Periam Iustices said That the Case is not to be compared to the Case in Fitz. Nat. Brevium 57. for there he cannot shew by whose demise the Tenant holdeth if he doth not shew the special Conveyance viz that the Land was given to the Husband and Wife and to the Heirs of the Body of the Wife Nor is it like to the Case of 26 H. 8. for the same cause For always the demise of the Tenant ought to be specially 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 Walmsley 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 tenuit ad terminum annorum and the Count shall be special 40 E. 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 and the Writ shall not contain two Tenets and such also was 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 Tenant by the Courtesie And thereupon Snag cited the Case of 4 E. 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 the like case the Heir of the third Coparcener cannot have waste because there is a mean Estate for life in the Tenant by the Courtesie And to prove that the Tenant by the Courtesie ought to joyn in the Writ he cited the Case of 3 E. 3. which he had seen in the Book 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 the Action of Waste and holden good And so is 17 E. 3. 37. F. N. B. 59. 22 H. 6. 25. Walmsley 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 disinherisin is not to him and the term is expired and therefore no place wasted is to be recovered and therefore it is not like to the Books which have been vouched 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 so it is not here for in as much as the term is expired the Land is in the Tenant by Courtesie and so he hath no cause to complain And such also was the Opinion of the whole Court that the Writ was good notwithstanding the said Exception Then concerning the principal matter in Law which was whether the Writ was 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 pass with the Lease as well as the Land and the profit of them is in the Lessee during the term and therefore when he grants his term he may well except the Trees as well as the Lessor might have done And that is proved by the Statute of Marlbridge for before that Statute the Lessee was not punishable for cutting down the Trees and that Statute doth not alter the property of the Trees but only that the Lessee should render damages if he cut them down c. Also the words of the Writ of Waste proveth the same which are viz. â—n terris domibus c. sibi dimissis And the Lessee might have cut them down for Reparation and for Firewood if there were not sufficient Vnderwood which he could not have done if the Trees had not been excepted And in 23 H. 8. Br. it is holden that the excepting of the Trees is the excepting of the Soil And so is 46 E. 3. â— where one made a Lease excepting the Woods and afterwards the Lessee did cut them down and the Lessor brought an Action of Trespass Quare vi armis clausum fregâ— c. and it was good notwithstanding Exception was taken to it And it is holden 12 E. 4. 8. by Fairfax Littleton 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 Walmsley Serjeants contrary And they conceived that the Lessee hath but a special property in the Trees viz. for Fire-boot Plough-boot House-boot c. and if he pass over the Lands unto another that he cannot reserve to himself that special property in the Trees no more than he who hath Common appendant can grant the principal excepting and reserving the Common or grant the Land 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. 27 H. 8. 13. If Tenant for life and he in the Reversion joyn in a Leafe and the Lessee doth Waste they shall joyn in an Action of Waste and the 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
THE FOURTH PART OF THE REPORTS OF SEVERAL CASES OF LAW Argued and Adjudged in the several COURTS at WESTMINSTER In the Time of the late Queen ELIZABETHS Reign Collected by a Learned Professor of the Law WILLIAM LEONARD Esq Then of the Honourable Society of GRAYES-INN PUBLISHED BY WILLIAM HVGHES of Grayes-Inn Esq With TABLES of the Names of the CASES and of the Matters contained in the BOOK LONDON Printed by the Assigns of Richard and Edward Atkins Esquires For Henry Herringman Ben. Griffin Charles Harper and Samuel Keble MDCLXXXVII Cum Gratia Privilegio Regiae Majestatis THE NAMES OF THE Principal Cases Reported in this BOOK A. ACton and Pitcher Pag. 51 Anderson and Heywood 30 Applethwaite and Nertley 56 The Scholars of All Souls and Tamworth 178 Archbishop of York's case 168 214 Arden and Goads 243 Ashpoole and the Inhabitants of Weringham 218 Lord Audleys case 166 210 B. BAbingtons case 123 Bakers case 122 Barkers case 60 Barlow and Pearson 102 Barnard and Trusser 186 Barton and Edmund 5 Bartace and Hind 185 Baspoells case 35 Baxter and Bartlet 156 Bedfield and Rouse 198 Bedingfields case 89 Beechers case 190 Bell and Langley 230 Bettuans case 22 Bills Case 238 Bingham and Squire 61 Bishop of Rochesters Case 23 Bishop of Londons Case 80 214 Bishop of Exeter and Sir Henry Wallop 247 Blaby and Estwick 15 Blithe and Colegate 88 Bluets Case 18 Bluet and Cooke 241 Box and Mounslowe 230 Brookhouses Case 3 Brasiers Case 104 Broome and St. Johns Case 96 Browne and Stulsbye 43 Browne and Peters 144 Browne and Tucker 241 Buckhursts Case 2 Bulwer and Smith 52 Burgess and Foster 215 Bussey and Milfield 61 Butler and Lightfoot 9 C. CAnnon and Osborn 49 Capells Case 150 Chomley and Conges 88 Christian and Adams 54 Clemp and Clemp 8 Clark and Kempton 91 Clarks Case 11 Sir Gervaise Cliftons Case 199 Clinton and Bridges 79 Cook and Sengate 31 Cooks Case 245 Collier and Collier 194 Connies Case 37 Connies Case 20 Lord Cromwell and Townsend 203 Crane and Parkins 249 Cursons Case 10 Curtis's Case 51 Corpus Christi Colledge Case 223 D. LOrd Dacres and Fines 97 Daubney and Gores 194 Dean and Chapter of Christ-Church 190 Doylies Case 101 Dolemans Case 86 Doughty and Prideaux 101 Dowhall and Catesby 113 Duke and Smith 238 Duffams Case 86 Duncombs Case 293 Dutchess of Suffolks Case 196 E. EArl of Derby's Case 42 Earl of Northumberlands Case 91 Earl of Huntington and the Lord Mountjoyes case 147 Earl of Rutland and Spencer 243 Earl of Arundel and Bradstock 186 Edwards and Watton 240 Egertons case 249 Englefields case 135 169 F. FItch and Peirce 121 Foles and Griffin 94 Frice and Foster 14 Fullers case 4 Fullers case 208 G. GArdians of the Monastery of Otleries case 117 Germies case 82 Germin and Ascott 83 Gerrards case 7 Sir Henry Gilfords case 156 Glascocks case 238 Glover and Archer 247 Godboults case 33 Goram and Fowkes 150 Goore and Winkfield 208 Greens case 85 Greindall and Archbishop of Yorks case 182 Grey and Edwards 110 Grenden and Albany's case 133 Grubhams case 246 H. HAltens case 8 184 Harris and Whiting 91 Harris and Coverley 98 Harris's case 112 Harvy and Harvy 12 Harvy and Thomas 15 Haselwoods case 114 Hawkins and Chapman 9 Hern and Crow 122 Hegger and Helston 111 Hide and Hill. 110 Higham and Cook. 144 Hills case 187 Hinds case 21 Sir Baptist Hix and Fleetwood 248 Holland and Hopkins 8 Hobbies case 5 Hore and Bridleworth 15 Hoo and Hoo. 78 Sir William Hollis's Case 119 Hollingshead and King. 182 Houtiers case 106 Hoven and Gerrard ibid. Hodges case ibid. Hunt and Sim's 13 Hunt and Gonnel 24 Hungerford and Watts 181 J. JAckson and Darcy 40 Jerons case 149 Johnsons case 193 Josselin and Josselin 19 K. KEenes case 121 Sir Thomas Kemp and Windsor 41 The King and Cotton 7 39 Kirkman and Reignot 3 Knevit and Cope 59 Knightly and Knightly 102 L. LAuntons case 1 Sir Richard Lee and Arnold 27 Sir Francis Leake and Hollis 24 Lees and Lord Stafford 58 Sir Rich. Lewknors case 162 225 Limver and Ivery 68 Long and Hemoning 216 Lukes case 32 M. MAnning and Andrews 2 Mayes case 7 Mansors case 62 Megett and Davis 60 Michel and Norden 201 Milborne and the Inhabitants of Dunmore 191 Morgen and Cox. 40 Morris's case 92 The Lord Mountjoy and Barker 73 Mounjoy and Andrews 150 194 N. NEals case 96 219 Newman and Sheriff 25 Marquess of Northamtons case 17 O. OGnell and Underhill 115 Onions Case 36 Old and Cony 7 Owen and Morgan 26 93 222 P. LOrd Pagetts Case 6 Par Marquess of Northamptons Case 17 Parry and Herbert 5 Paston and Townsend 97 Pelhams Case 33 Sir William Pelham 114 123 Peake and Pollert 121 Peirs and Levesuch 48 Penhalls Case 49 Penson and Higbed 99 Pophams Case 4 Pouley and Siers 208 Prowes Case 47 Provost of Queens Colledge Case 85 President of Corpus Christi Colledge Case 223 Price and Atmore 246 Q. QUeen and Earl of Shrewsbury 19 Queen and Lord Vaux 26 Queen and Painter 32 Queen and Paine 81 Queen and Bishop of Lincoln 95 Queen and Sir John Savile 104 Queen and Faine Archbishop of Canterbury 107 Queen and Due 197 Queen and Bishop of Norwich 217 R. RAtcliff and Shirley 121 Ratcliff and Chaplain 242 Rawlins and Somerford 116 Robinsons Case 55 Sir Henry Rolls and Osborne 250 Ropers Case 47 Rowson and Browne 3 Ruithbrooke and Pusaine 16 Russels Case 24 197 Russel and Pratt 44 S. SAer and Bland 24 Sandersons Case 12 Sapland and Ridler 238 Savages Case 88 Savage and Knight 78 Lord St. John and Sir John Gray 22 Scotts Case 51 Scott and Scott 39 70 Seamar and Browning 122 Seixtbank and Peirces 85 Shrewsbury and Inhabitants c. 18 Smith and Babb 193 Spring and Lawson 77 Starkeys Case 61 Mark Stewards Case 106 Lord Stafford and Sir Rowland Haywood 55 Strangborough and Warner 3 Strangdon and Burnett 4 106 Stroads Case 40 Countess of Sussex and Wroth 65 T. TAylors Case 31 Taylors Case 22 186 209 Terrets Case 51 Thetford and Thetford 50 Townsend and Pastor 52 Trecarham and Friendship 64 Trivilians Case 195 Tutor and Norton 6 Tyrells Case 92 V. VErney and Verney 207 Vernon and Sir Tho. Savile 191 W. WAite and Cooper 207 Sir Walter Wallers Case 44 William Wallers Case 169 Walsgrave and Somerset 167 Wards Case 239 Wards Case 241 Wath and King 57 Webbs Case 110 Weshbournes Case 49 Wheelers Case 240 Willet and Wilkinson 7 Windham and Meede 96 Wingate and Sands 202 Wood and Chivers 179 Wroth and Capell 197 Y. YOung and Taylor 94 THE FOURTH PART OF THE REPORTS OF SEVERAL Excellent Cases Argued and Adjudged in the several COURTS of Law at WESTMINSTER In the time of the Late Queen Elizabeths Reign Hil. 20 Eliz. I. Launtons Case A. Is bound in an Obligation Emblements that B. shall enjoy a Lease of black Acre immediately after his death The Land
the contrary for the Estate of Tenant for life and he in the Remainder are but one Estate and the admittance of the particular Tenant is the admittance of him in the Remainder XXXIX Mich. 33 Eliz. In the Exchequer IN an Information upon the Statute of 5 Eliz. cap. 4. Upon Statute of 5 Eliz. Apprentices against one for exercising the Trade of a Chandler not having been an Apprentice to the same by the space of 7 years It was holden by the Iustices That for as much as he had been Apprentice to a Taylor for 7 years which is one of the Trades mentioned in the said Statute that the penalty thereof did not extend to him but Iudgment was given against the Informer For it was holden clearly upon the said Statute That if one hath been an Apprentice for 7 years at any Trade mentioned within the said Statute he may exercise any Trade named in the said Statute although he hath not been an Apprentice to it Mich. 33 Eliz. In the Exchequer XL. Sir John Hawkins and Chapmans Case IF A. be bounden to B. by Obligation with Condition for the performance of Covenants although the Covenants Assignment of Bonds to the Queen or some of them be for payment of money yet the assignment of such Bonds to the Queen shall not be received and if it be assigned it shall be put out of the Court For no Bonds shall be assigned ut supra but such which are made for payment of money XLI Mich. 33 Eliz. In the Exchequer A. Lessee for years the remainder to B for years the term of A. came to the Queen and afterwards the Reversion Clark Baron said That the Lease of B. should begin presently and cited the Case 1 Eliz between Wortesly and Adams where a Lease for years is made to A. and afterwards a Lease in Reversion is made to B. for years A. obtains an Estate for life from him in the reversion the Lease of B. shall begin presently But Manwood Chief Baron held that the first Lease was not extinct XLII Mich. 33 Eliz. In the Exchequer Upon Stat. 31 Eliz. of Inmates UPon the Statute 31 Eliz. cap. 7. the Case was this A Woman having a great Messuage viz. a Brewhouse alotted to her for her Dower let the same to another reserving to her self two or three Rooms of it and now an Information was exhibited against the Lessee upon the said Statute Clark Baron A Cottage proprie loquendo is where a poor man inhabits and this being a great Messuage cannot be said a Cottage Inmates are where there are more Families than one Manwood Be it a Messuage or a Cottage for more Families than one makes a Messuage a Cottage as to this Statute Gent. The words of the Statute are There shall not be more Families than one in any Cottage made or to be made and I conceive it ought to be a Cottage accounted in Law before the inhabitations of the Inmates Clark If I grant to you all my Cottages in D. my Messuages shall not pass If I marry my Daughter and she and her Husband inhabit with me in the same house are these Inmates Manwood An Inmate is such an one who is at his own finding and therefore if the Husband and Wife are entertained there at the charge of the Father of the Daughter they are not Inmates And if in our Case any Inmate be the same is the Woman for she hath the lesser part of the Messuage Mich. 33 Eliz. In the Exchequer XLIII Cursons Case 3 Leon 239. Execution of a Statute binds the King. CUrson acknowledged a Statute to Alderman Starkey of London and afterwards he acknowledged another Statute to one Hampden who assigned the same to Fitton who assigned the same to the Queen Starkey sued forth Execution upon his Statute and the Lands of Curson are Extended and he hath a Liberate of it Assignment to the Queen It was agreed by all the Barons if Starkey had Execution upon his Statute before the Queen the Execution shall stand against the Queen and the Queen should not put him out A. recovers Debt in the Kings Bench so as he hath Title to sue Execution by Elegit The Defendant sold his Lands and afterwards A. assigned his Execution to the Queen It was holden that the Queen should not have Prerogative against the Feoffee to have Execution of the whole Land and it was holden by Manwood Chief Baron If Execution be had upon a puisne Statute and that is afterward avoided by an elder Statute and the elder Statute is satisfied by the Execution now the younger Recognizee shall enter without suing forth a new Execution Trin. 26 Eliz. In the Kings Bench. XLIV Clarks Case IN Ejectione firmae The Case was the Master Brothers Leases by Corporations Misnosm and Sisters of the Hospital of the blessed Mariae Virginis by Indenture by the name of the Hospital Beatae Mariae c. leaving out the word Virginis leased the Land It was resolved that notwithstanding the want of the word Virginis that the Lease was good Then it was moved that the words of the Indenture are Haec Indentura inter Magistrum Fratres Sorores Hospital Beatae Mariae c. Testatur that the said Master with the assent of the Brothers and Sisters aforesaid had leased to A. in cujus rei testimonium the said Master with the assent of the Brothers and Sisters aforesaid had put their common Seal Ayliffe and Clench Iustices held that the Lease was void for here the Brothers and Sisters being one entire Body with the Master are not parties to the Indenture but give their consent only And it is not like to the Case where Abbot or Prior makes a Lease for years with the assent of their Covent for the Monks and Friers being dead persons in Law cannot be parties to the Lease but here in the Case at Bar the Brothers and Sisters are persons able in Law And it is not like to the Case of Parson Patron and Ordinary where the Parson with the assent of the Patron and Ordinary grant a Kent-charge for there the Parson is the principal Grantor and the others have not any express interest in the Land charged Gawdy Iustice contrary It is more honourable for Iudges to maintain Leases made by Corporations than for to permit them to avoid the same And he said for law If two Ioyntenants be of Lands and they make the like Indenture viz. Testatur that one of them with the assent of the other deviseth the Land Leases in witness whereof he with the assent of the other hath put his Seal it is a good demise by them both But Clench said that is not like our Case for the two Ioyntenants are distinct persons and the one of them may assent to the other but in our Case the Master Brothers and Sisters are but one person in Law and a Body cannot be distinct so as one can consent to the other
Common Pleas. LII Frice and Fosters Case IN Ejectione firmae the Plaintiff declared upon a Lease made 14 Jan. 30 Eliz. to have from the Feast of Christmas then last before for three years and upon the Evidence the Plaintiff shewed a Lease bearing date the 13 day of January the same year and it was found by Witnesses that the Lease was sealed and delivered upon the Land the 13 day of January Variance Whereupon Puckering and Cowper Serjeants moved on the part of the Defendant that for that variance between the Declaration and the Evidence of the Plaintiff that the Iury might be discharged Evidence good to maintain Issue But Anderson Chief Iustice said that the Evidence was good enough to maintain the Declaration for if the Lease was sealed and delivered the 13 of January it was then a Lease 14 January Quod caeteri Justiciarii concesserunt LIII Mich. 32 Eliz. In the Common Pleas. IN a Quare Impedit against the Bishop of Coventry and Lichfield The Case was that A. seised of an Advowson in Fee Quare Impedit by Executors the Church voided the Bishop collated wrongfully A. dyed Collation it was holden that his Executors might have a Quare Impedit upon that disturbance and that by the equity of the Statute which gave an Action of Trespass to Executors of Goods carried away in the life of the Testator 4 E. 3. cap. 7. and that the Clerk should be removed at the suit of the Executors Mich. 32 Eliz. In the Kings Bench. LIV. Harvey and Thomas Case THe Case was that the Husband seised of Land in the right of his Wife made a Lease of it for years Fine by the Husband where avoids a Lease ê contra 1 Roll. tit Charge in Marg. 389. Plow Quaer 31. 261. ib. plus and afterwards he and his Wife conveyed the Land to a stranger by Fine the Husband died Wray Chief Iustice was of opinion that the Conusee should hold the Land discharged of the Lease Gawdy contrary In case of a Rent granted or a Recognizance acknowledged by the Husband the Conusee of the Fine shall avoid any of them But in this Case the Conusee meddles with the Land it self and an Estate in the Land is conveyed by the Husband which none but the Wife or her Heirs shall avoid and if the Wife after the death of her Husband accept the Rent upon such a Lease by that the Lease is confirmed Mich. 33 Eliz. In the Kings Bench LV. Blaby and Estwicks Case IN Assumpsit It was moved in stay of Iudgment Assumpsit that one of the Defendants was dead after verdict but notwithstanding that Allegation Iudgment was given Attornment for the Court cannot take Notice of it judicially nor any of the Parties hath day in Court to plead it and therefore the Court is not to have regard to such Informations Wray It is not honourable for us upon such surmises which cannot be tryed to delay Iudgment and also the Party is not without remedy for he may have a Writ of Error 33 Eliz. In the Kings Bench. LVI Hore and Briddleworths Case HOre brought Trespass against Briddlesworth Quare clausum Domum suam fregit the Defendant pleaded and put the Plaintiff to a new Assignment i. e. a House called a Stable a Barn and another House called a Carthouse and Garnier And that was assigned for Error for that Assignment is not warranted by the Declaration Gawdy said it was good enough for Domus in the Declaration contains all things contained in the new Assignment but if the Declaration had been of a Close and the new Assignment of a Barn it had not been good Wray Chief Iustice Domus est nomen collectivum and contains many Buildings as Barns Stables c. And such was the Opinion of the Court. Mich 33 Eliz. In the Kings Bench. LVII Mans Case Prohibition MAn was sued before the Commissioners in Ecclesiastical Causes for an Incestuous Marriage viz. for marrying his Wives Sisters Daughter and although it be not expresly within the Levitical degrees yet because more farther degrees are prohibited the Archbishop of Canterbury and other the Commissioners gave Sentence against him Consultation upon which he sued a Prohibition upon the Stat. of 32 H. 8. c. 38. The Prohibition was general where it ought to be special that it be not within the Levitical degrees and therefore a Consultation was granted Trin. 26 Eliz. In the Kings Bench. LVIII Doylies Case Appeals IN an Appeal de Roberie against Doyly It was agreed by the Iustices that the Party robbed shall have an Appeal of Robbery 20 years after the Robbery committed and shall not be bound to bring it within a year and a day as in the Case of an Appeal of Murder Vide contr 22 Ass 97. vide Stamford 62. Trin. 26 Eliz. In the Kings Bench. LIX Ruishbrook and Pusanies Case THe Plaintiff brought Trespass for pulling down his Hurdles in his Close The Defendant justified by reason that one Beddingfield was Lord of the Mannor of D. and that the said Beddingfield and all those whose Estate he had in the said Mannor had had a free course for their sheep in the place where c. And that the Tenant of the said Close could not there erect Hurdles without the leave of the Lord of the Mannor and that the said Beddingfield let to the Defendant the said Mannor and because the Plaintiff erected Hurdles without leave c. in the said Close he cast them down as it was lawful for him to do The Plaintiff replyed of his own wrong without cause c. It was holden by the Iustices to be an ill Plea Traverse for the Plaintiff ought to have traversed the Prescription 19 Eliz. In the Common Pleas. LX. Par Marquess of Northamptons Case PAr Marquess of Northampton took to Wife the Lady Bourchier Heir of the Earl of Essex Leases by a Baron contrary to Act of Parliament void 3 Leon. 71. who levied a Fine of the Lands of the Lady sur Conusans de Droit c. with a Grant and Render to them for Life the remainder to the right Heirs of the body of the said Lady And afterwards by Act of Parliament â—5 H. 8. It was enacted That the said Lady should retain part of her Inheritance and dispose thereof as a Feme sole and that the said Marquess should have the residue and that he might lease the same by himself without the Wife for 21 years or lesser term yielding the ancient Rent being Land which had been usually demised c. The Marquess leased the same for 21 years and afterwards durante termino praedict he let the same Land to another for 21 years to begin after the determination of the former Lease It was moved that the last Lease was void for three Causes 1. Because the Marquess had but for Life and then it cannot be intended that the Statute would enable
one who had an Estate so determinable to make such a Lease which peradventure could not begin in his Life 2. The Letter of the Act is 21 years or under and the word under strongly expounds the meaning of the Act to be not to extend to such an Estate for hereupon the matter is a Lease for 40 years 3. Because the Land leased is the Inheritance of the Wife and it was said that in the Case of one Heydon such a private Act of Parliament was strictly construed Acts of Parliament It was enacted that all Copies for three Lives granted by the Lord Admiral of the Lands of his Wife which was Queen Katherine should be good The Admiral granted in Reversion for three Lives It was holden that the Grant was void and not warranted by the said private Act of Parliament Dyer The words are general omnes dimissiones therefore not to be restrained to special Leases Manwood A Feme covert by duress joyns in a Lease with her Husband it shall bind her The Case was adjourned LXI Mich. 19 Eliz. In the Common Pleas. THe Queen leased for years rendring 10 l. Rent the Lessee granted the Land over to A. rendring 20 l. Rent A. granted the Land over to B. who surrendred to the Queen and took a new Lease And Manwood said that the first Lessee should have an Action of Debt for the Rent of 20 l. against him Debt for Rent who was possessed of the Land and not against A. his Assignee for it is a Rent issuing out of the Land and he who hath the possession of the Land shall pay it and no other for if any part of the Land be evicted the Rent shall be apportioned and because it is meerly a Rent and ensues the privtiy real viz. the possession of the Land and not the privity personal the Person of him who was party or privy to the Contract and he said If the first Lessee who reserved the Rent entred upon the Land the Rent is suspended Dyer The first Lessee hath Election which of them he will sue 18 H. 6. 1. in Debt against Lessee for years for the Arrearages of Rent reserved upon it he needs not declare that the Lessee had entred for the Contract is the ground of the Action 44 Eliz. 3. 5. Debt against the Lessee notwithstanding the Assignment Mich. 26 Eliz. In the Common Pleas. LXII Bluets Case BLuet granted the next Avoidance to Stell and Brooks and was bound to Brooks in an Obligation that he should enjoy the said Presentment without any disturbance or claim of the said Bluet Stell released to Bluet his Interest on the said Advowson The Church became void Bluet offer'd to joyn with Brook Obligation forfeited in presenting to the Avoydance It was holden in this Case that the Obligation was forfeited although that Bluet had a puisne Title to it after the Obligation was entred into Mich. 32 Eliz. In the Common Pleas. LXIII Shrewsbury and the Inhabitants of Ashtons Case Action upon Statute of Huy and Cry. AN Action was brought by Shrewsbury against the Inhabitants of the Hundred of Ashton in the County of Bucks upon the Statute of Huy and Cry It was moved by Fleetwood Serjeant for the Defendants That if upon such Huy and Cry the Inhabitants do their endeavours as much as in them is to pursue and take the Malefactors and yet they cannot apprehend them that in reason they ought not to be charged But the whole was very strongly against him For Anderson Chief Iustice said that the Inhabitants of the Hundred in which the Robbery is done are bound to apprehend the Felons or to satisfie the Party robbed and the Party robbed is not bound to give notice to the Inhabitants nor to direct them which way the Felons took their flight but the Inhabitants are bound to pursue the Felons without any such instruction And afterwards the Inquest was taken and gave a Verdict in this manner That where the Plaintiff had declared that the Robbery was done in the Parish of D. in the Hundred aforesaid the Iury found that the place where the Robbery was done was a Lane within the said Hundred and that the one side of the said Lane was within the Parish of S. and the other side within the said Parish of D. and that the Robbery was done on the side of the said Lane which was in the Parish of S. and prayed the Opinion of the Court upon the matter And the whole Court was clear of Opinion That notwithstanding the Exception the Plaintiff should have Iudgment for here is the right Hundred which ought to be charged and the mistaking of the Parish was not to the purpose Mich. 32 Eliz. In the Common Pleas. LXIV Josselin and Josselins Case IN Debt the Plaintiff declared That he let certain Lands for years to the Defendant rendring Rent payable at the Feasts of the Annunciation and St. Michael or within forty days after every of the said Feasts and that the Rent was behind at the Feast of St. Michael last past unde actio accrevit The Defendant pleaded Nihil debet upon which they were at Issue It was shewed to the Court that here upon the Pleading is a Ieofail for the Rent is reserved payable at the said Feasts Jeofails or within forty days after and he declares that the said Rent upon which the Action was brought was behind at St. Michael without respect to the forty days after which cannot be for before the forty days after each Feast no Action did lie whereupon the Court awarded a Repleader Mich. 32 Eliz. In the Kings Bench. LXV The Queen and the Earl of Shrewsburies Case THe Queen granted to George Earl of Shrewsbury Grants of the King. Office of Marshal of the Kings Bench. An. 15 Eliz. the Office of Earl Marshal of England and now came the said Earl and prayed that J. N. one of his Servants to whom he had granted the Office of Marshal of the Kings Bench might be admitted to it because that the same is an Office incident to his Office and in his power to grant and that Knowles to whom the Queen had granted the same Office of Marshal of the Kings Bench which she had by the Attainder of Thomas Duke of Norf. might be removed And a President was shewed M. 14 and 15 Eliz. between Gawdy and Verney where it is agreed That the said Office was a several Office from the said great Office and not incident to it And as to the Case of 39 H. 6. 33 34. the truth is that the said Marshal of the Kings Bench was granted expresly to the Duke and so he had it not as incident to his Office of Marshal of England On the other side were three Presidents shewed In the time of Edward 2. That the Office of Marshal of the Kings Bench was appendant to the said Office of Marshal of England And 8 H. 2. when the said Great Office was in the
should vest in his Heir It was further given in Evidence that the Conusor named the said Cook one of the Conusees and willed that the other three Conusees should release to him Gawdy Iustice held That that by nomination the use did vest in Cook for he said it had been adjudged that where before the Statute of 27 H. 8. One infeoffed divers persons to his use Feoffment to Uses and the Feoffor willed that his Feoffees should make estate to such person as his Son and Heir should name and died the Son and Heir named one of the Feoffees that the same was a good nomination c. Wray and Jefferies to the contrary for after this release Cook is in the whole by the Conusor and not by his Co-Feoffees and by this limitation the Conusor ought to name such a person which ought to take the estate and so cannot one Ioyntenant from his Companion c. And also the words are so that they four shall take the estate 14 Eliz. In the Kings Bench. LXXIII The Bishop of Rochesters Case IN Ejectione firmae the Case upon Evidence was Grant of a Reversion by a Bishop Attornment the Bishop of Rochester 4 E. 6. made a lease for years to B. rendring rent and afterwards granted the Reversion to C. for 99 years rendring the ancient rent Habend from the day of the Lease without impeachment of waste which Grant was confirmed by the Dean and Chapter But B. the Lessee did not attorn and in default of Attornment it was holden by the whole Court that the Lease was void for it is made by way of Grant of the Reversion But by Catlin if the Bishop had granted the Reversion and also demised the Land for 99 years it should pass as a Lease to begin first after the former Lease determined And as to the Attornment it was given in Evidence that B. after the notice of the Grant to C. had speech with C. to have a new Lease from him because he had then in his Lease but 8 years to come but they could not agree upon the price And the Iustices conceived that that was an Attornment because he had admitted the said C to have power to make a new Lease Also the said B. being in company with one R. and seeing the said C. coming towards him said to the said R. See my Landlord meaning the said C. Bromely Solicitor Attornment the same is no Attornment being spoken to a stranger Barham contrary because he was present It was holden by the whole Court that it was a good Attornment But if the Attornment was not before the Bishop was translated to Winchester the Lease should be void and although the confirmation of the Dean Chapter was before the Attornment so as no estate was vested in C yet it was good enough for the assent of the Dean and Chapter is sufficient be it before or after by Catlin Southcoat and Whiddar Iustices but Wray held the contrary Pasc 26 Eliz. In the Kings Bench. LXXIV Russels Case Execution where not good upon a Capias without a Scire Facias RUssel was condemned in an Action of Debt and after the year and day the Plaintiff sued a Capias ad Satisfaciend against him and by force thereof he was taken and committed to the Marshal as in Execution It was the Opinion of the Iustices that it was a void Execution and not only voidable by Error and therefore the Defendant was discharged for it is not any Execution at all and the Plaintiff may have a Scire facias when he pleaseth Pasc 26 Eliz. In the Kings Bench. LXXV Bluet and Cooks Case Action for Words IN an Action upon the Case the Plaintiff declared for scandalous words viz. Lambert is a Thief and Bluèt innuendo the Plaintiff is his Partaker It was the Opinion of the whole Court that the words were not actionable because they were too general for it may be that the Plaintiff is his Partaker in other Matters But if the words had been That Bluet knowing Lambert to be a Thief was his Partaker there the Action would have lain Iudgment was given against the Plaintiff Trin. 33 Eliz. In the Kings Bench. LXXVI Hunt and Gonnels Case Bail. HUnt recovered in Debt against Gonnel and procured against him a Capias ad Satisfaciend upon which Non est inventus is returned Execution but the Writ is not filed Hunt sued a Capias against the Mainpernors who are taken in Execution It was the Opinion of the Iustices that they should avoid this Execution by Error and not by Plea or Surmise c. But if the Capias returned against Gonnel had been filed and after imbezelled Quaere of the Error for the Court conceived that the matter shall be examined but Quaere to what intent Wray said to punish the Deceit but not to maintain the Execution against the Mainpernors Trin. 26 Eliz. In the Kings Bench LXXVII Saer and Blands Case SAer Parson of the Church of D. libelled in the Spiritual Court against Bland for Tythes Bland came to the Kings Bench and shewed that within the said Parish of D. there is a Hamlet in which the said Bland inhabited and the said Inhabitants within the said Hamlet time out of mind had had a Chappel of Ease within the said Hamlet because the said Hamlet was distant from the Church of the said Parish and with part of their Tythes have found a Clark to do Divine Service within the said Chappel and also had paid a certain sum of money to Saer Prohibition Prescription and his Predecessors for all manner of Tythes and prayed a Prohibition and had it and it was holden a good Prescription LXXVIII Pasc 29 Eliz. In the Common Pleas. A Copyholder with licence of the Lord made a Lease for years and afterwards surrendred the Reversion with the rent to the use of a Stranger who is admitted accordingly Attornment It was moved if there needed any Attornment It was the opinion of Rhodes and Windham Iustices that the Surrender and Admittance ut supra are in the nature of an Attornment and so amount to an Attornment or at least supply the want of it Mich. 29 Eliz. In the Star-Chamber LXXIX The Lady Newman and Shyriffes Case THe Lady Newman Sister of James Wingfield 3 Leon. 170. lately deceased exhibited a Bill of Complaint in the Star Chamber against one Shyriffe dwelling in Dublin in Ireland and two others complaining That the said Shyriffe had forged a Deed purporting that the said James had by that Deed given unto him all his Goods and also that the said James had by that Deed assigned to the said Shyriffe a Lease for years of Lands in Ireland and also the said Shyriffe had procured the two other Defendants to depose upon their Oaths before the Town-Clerk of London That the said Deed was Sealed and Delivered by the said James as his Deed. It was moved by the Counsel of the
be made rendring rent with clause of re-entry The Lessor grants the Reversion for life such a Grantee is an Assignee within the said Statute Jefferies The Condition is gone A. leaseth two Acres for years rendring rent with clause of re-entry the Lessor accepts a surrender of one Acre the whole Condition is gone but the rent shall be apportioned A Parson leaseth land whereof he is seized in his own right and land whereof he is seized in the right of his Church for years rendring rent with clause of re-entry and dieth the rent shall go according to his respective capacity and the Condition divided Condition apâ—â—â—â—â—â—ned So if part of the land so demised be evicted the Rent shall be apportioned and the Condition also And he said that the Bargainee is not an Assignee within the Statute Barham If the Reservation doth not make the lease several yet it shall make the Reversion several c. Mead 6 Eliz The Court was moved in this Case A. leased for years rendring rent with clause of re-entry and afterwards became bound to another by Recognizance the Recognizee extended the moiety of the rent and Reversion in Execution Condition suspended and the clear Opinion of the Court was that the Condition was suspended If A. let lands for years rendring rent with clause of re-entry to a Man and to a Feme sole and afterwards the Lessor intermarries with the Feme the Condition is suspended Mounson Iustice The Demise is joynt although that the Reservation be several Cestuy que use is seized of an Acre in possession and of another in reversion and makes a Lease for years of both rendring rent Severance here are several rents 13 E. 3. A. seized of two Acres of lands before the Statute of Westminster 3. made a Feoffment thereof to hold the one Acre by Knight Service and the other in Socage the Tenancy in such case is several 9 Ass 24. a lease is made of a Mill. and of a Wood rendring for the Mill 10 s and for the Wood 20 s. these are several rents and so here they are several rents and several conditions Two Tenants in Common make a lease for years rendring rent upon clause of re-entry the condition is several according to the reversion for joynt words in the Letter have sometimes as the matter requires constructions in the severalty As A and B covenant by Indenture and are reciprocally bound the one to the other to perform all Covenants contained in the said Indenture the same is to be construed such Covenants which on the part of A. are to be performed and so of the other part B. And he conceived that by the distracting of the reversion the condition was gone a condition by an act in law may be divided but not by the act of the party Conditions by act in Law divided not by act of the Party As a man makes a lease for years rendring rent with clause of re-entry takes a Wife and dyeth The Wife recovers the third part of the land devised for her Dower now that third part is discharged of the condition during the estate in Dower but the residue is subject to the condition and vide F. N. B. 21 the Heir at Common Law shall have a writ of Error for his part and the Heir in Borough English for his part two Ioyntenants make a lease for life upon condition and one releaseth the condition Statute of 32 H. 8. of Conditions taken by Equity the same barred the condition And he conceived that the Bargainee is an Assignee for the Statute of 32 H. 8. shall be taken by Equity c. As if a man leaseth lands for years to begin at Michaelmas next and before Michaelmas he makes a Feoffment and at Mich. the Lessee enters the Feoffee is an Assignee within the Statute two Ioyntenants make a lease for years rendring rent with clause of re-entry and the one releaseth to his companion he is an Assignee within the Statute Manwood He is an Assignee and in by the Bargainor The words of the Statute of 32 H. 8. are Grantees or Assignees to or by any Person or Persons and here the Bargainee is an Assignee to the Bargainor as to the use and for the possession he is an Assignee by him He who is in by a common recovery is not an Assignee although the recovery was to his use for the Writ disaffirms his possession if Tenant for llfe be disseised and he in the reversion confirms the estate of the Disseisor and the Tenant for life re-enters the Disseisor is now an Assignee but otherwise it is if he in the reversion doth release to the Disseisor and he conceived that the Lessor should recover part of the land in an action of Waste or enter in part of the land for a forfeiture for an alienation in fee that the condition remains Harper Several reservations do not make several leases for the reservation is not of the essence of the lease for it is good without any reservation and whereas it hath been said that a Lease is a contract I say Difference between a Reservation and a Contract that there is a great diversity between a reservation and a contract for if I sell to you a Horse for 40 s. and afterwards I take this Horse out of your possession yet I shall have an action of Debt for the 40 s. But if I lease land to you reserving rent and afterwards enter into parcel of the land demised I shall not have the rent and if I lease two Acres for years with several reservations I shall have but one action of waste but several Avowries according to the several reservations And here if any part of any of the said rents be behind the party may re-enter into the whole therefore the lease is but una eadem And I conceive that the Assignee of the Assignee is by the Statute to take advantage of the condition even to the twentieth degree as a warranty to one of his Heirs and Assigns extendeth to the twentieth Assignee But here in our case he is not such an Assignee that shall take advantage c. for he is in by the Statute scil in the Post but not in the Per and here the Bargainee hath but an use by the act of the Party and the possession of the Statute of 27 H. 8. But admitting that he is an Assignee yet he is an Assignee but of part and therefore shall not have advantage Condition suspended in part is suspended in all c. When a condition is suspended in part it is suspended in all A. leaseth lands for years upon condition and afterwards the lessor confirms his Estate in part for life the condition is gone Dyer The Lease is one and entire although there be several reservations for here are not several capacities nor several interests 42 Ass Two Ioyntenants lease for life rendring rent to one of them yet the rent and
lie Mich. 27 Eliz. In the Kings Bench. XCVII Baspoles Case THe Father seized of Lands is bound in an Obligation 3 Leon. 118. 2 Leon. 10 1. Stiles 148 Devise to his Son and Heir and devised his Land to his Wife until his Son shall come to the age of 21 years the remainder to the Son in Fee and no other Land descends to the Son from his Father It was moved that the Heir in this case at his Election might wave the Devise and take by descent or è contra Vide 9 E. 4. 18. per Needham It was the Opinion of Gawdy and Fenner Iustices that the Son should be adjudged in by descent Clench held the contrary Mich. 27 Eliz. In the Kings Bench. XCVIII Onions Case IN an Action upon the Statute of 5 Eliz. for hunting in his Park the Statute gives treble damages It was the Opinion of the Iustices that notwithstanding that the Statute gives treble damages Costs that the Plaintiff should have Costs also XCIX Mich. 27 Eliz. In the Kings Bench. IN Debt the Plaintiff had Iudgment to recover and a Scire Facias issued against the Bail before any Capias issued against the Principal Bail. and the Bail was taken and now they came and shewed this matter to the Court and prayed to be discharged Wray Iustice said They shall be put to their writ of Error for being but Error in Process we may reverse our own Iudgment C. Mich. 14 Eliz In the Common Pleas. A Man seized of a Pasture within which are two great Groves and Wood known by the name of a Wood leased the same by Indenture for years and also in the same Pasture were certain Hedgrows and Trees there growing sparsim by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses and further that it shall and may be lawful to the Lessee to cut down and carry away the same at all times during the term Harper said the Hedg-rows did not pass by these words for they are not known by the name of Woods 14 H. 8. 2. Manwood held the contrary Mounson contrary to Manwood for the words of the Grant may be supplied by other in it viz. Woods Dyer held that these Hedgrows should pass for the Grant is general It was further moved if by these words the Lessee might again cut them c. or but once Harper Manwood and Mounson three of the Iustices held That he might cut them but once But Dyer held the contrary said so it should be if the words had been growing upon the Premisses and this word growing although it sounds in the present tense yet it shall be taken also in the future tense if not that the word tunc be laid for that is a word of restraint The case which was argued in the Chancery 27 H. 8. where I was present was this The Prior of St. Johns let a Commandry Provided that if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void And it was doubted if that Proviso did extend to the Successor for this word being in the present tense and yet it was holden by Fitzherbert that it should be taken in the future tense and so to extend to the Successor but otherwise if the words had been nunc being 15 Eliz. In the Common Pleas. CI. Conies Case A Man seized of Lands in Fee devised Devises that his wife should take the profits of his Lands until Mary his daughter and Heir should come to the age of sixteen years and if the said Mary died that J.S. should be his Heir Manwood said Tail. That the daughter after she had attained the age of sixteen years should have the Lands in Tail for Devises shall be construed according to the interest of the Devisor if they have any certainty or reason but no intent shall be taken against reason and certainty It is certain the daughter shall not have Fee-simple for that should have descended to her without any Devise and these words if she dye cannot be intended a condition for it is certain that she shall dye but if the words had been If she dye before the age of sixteen years J. S. should be his Heir that had been a condition and if the words had been That after the death of Mary J. S. should be his Heir So as the Estate Tail remains in the daughter Mounson and Harper contrary And that she shall have but for life Mounson said That if Mary had been a Stranger to the Devisor she had taken nothing Devisee who shall first take And this case was put by Barham Serjeant A man devised 100 l. to his youngest daughter and 100 l. to his middle daughter and 100 l. to his eldest daughter and that all these sums should be levied of the Profits of his Lands It was holden by the better Opinion that the youngest daughter should be first paid and then the middle and then the eldest daughter c. and that he said was Conies Case CII 6 Eliz. In the Common Pleas. A Man made a Lease for life and afterwards made a Lease to another for years to begin after the death of the Tenant for life the Lessee for years died intestate the Ordinary committed Letters of Administration to A. the Tenant for life and A. joyned in the Purchase of the Fee-simple of the Land demised It was holden by the Iustices in this Case that the Fee was executed for one Moiety for the remainder for years Estate executed was not any impediment to the execution of it Manwood conceived that the Term was not extinct for the same is not properly a term Extinguishment but only an Interest of a Term which cannot be surrendred Mounson He hath the Term in auter droit as Administrator and therefore it cannot be extinct Dyer If an Executor hath a Term and purchaseth the Fee-simple the Term is determined A woman Termor for years takes Husband who purchaseth the Fee the Term is extinct by Manwood for the Husband hath done an act which destroys the Term scil the Purchase But if a woman being a Termor marrieth with him in the Remainder the Term continueth for here it is not the act of the Husband but the act of Law. It was the Opinion of Dyer Tenants in Common that in this case the Tenant for Life and the Administrators should be Tenants in Common of the Fee. CIII Mich. 17 Eliz. In the Common Pleas. THe husband is seized in right of his wife of certain customary lands in Fee and he and his wife by licence of the Lord make a Lease for years by Indenture rendring rent have Issue two daughters and the husband dyeth the wife takes another husband and they have Issue a son and a daughter the husband and wife dye the son is admitted to the Reversion and dyeth without Issue and by Manwood
taken to it because in the Margent was written Middlesex and in the Indictment they both were named of London and afterwards in the proceedings the words are That Weshbourn and Brown entred in such manner in Com. praedict and that is incertain what County is intended Middlesex or London but the Exception was not allowed for London before is not expressed to be accounted but only implyed Another Exception was because they had not any addition but it was not allowed for it appeared to the Court. And after it was moved upon the Statute of 31 Eliz. cap. 11 that no Restitution upon such Indictment should be granted if â—he party indeed had had the Occupation or had been in quiet possession for three years next before the day of the Indictment and in the Case at Bar the Master hath been in possession by three years but the Parties indicted being his Servants had been with him but for one year it was thereby holden by the Court that upon the matter Restitution should not be granted for the possession of the Master in this Case takes away all Restitution and that by the Statute Mich. 32 Eliz. In the Common Pleas. CXXIX Canons and Osborns Case A. Seized of a Rent in Fee granted the same by Fine to B. to the use of C. It was moved to whom the Ter-tenant should attorn And by Walmesly Periam and Windham there needs not any Attornment to the Conusee because all the right of the Rent is out of the Conusor Attornment and transferred to Cestuy que use instantly And Walmesly cited this Case to have been lately adjudged A Reversion in Fee upon a Lease for years was granted by Fine to A. to the use of B. B. without Attornment brought an Action of Waste and it was adjudged that the Action did well lye CXXX Mich. 32 Eliz. In the Common Pleas. A Lease for years is made by Deed Indented rendring Rent and the Lessor covenants that the Lessee paying his Rent shall enjoy the Land demised for the whole term the Lessee did not pay the Rent and afterwards is ejected by a Title peramount By Walmesly and Windham Iustices that the Covenant is conditional and that the Lessee should not have advantage of it if he did not perform the Condition which is created by this word paying Periam Iustice was strongly to the contrary viz. that the word paying did not create a Condition Mich. 32 Eliz. In the Common Pleas. CXXXI Thetford and Thetfords Case THe Case was an Action of Debt for Rent reserved upon a Lease for years the Plaintiff declared that Land was given to A. and B. his Wife Leases and the Heirs of their Bodies and that he and his Wife leased for years to the Defendant Baron and Feme and that the Donees were dead and that the Plaintiff as Heir c. for Rent behind c. And upon Non dimiserunt the Iury found that the Husband and Wife dimiserunt by Indenture and that after the Husband died and the Wife entred and within the term died Agreement Disagreement Now upon this matter Anderson Iustice conceived clearly that the Iury have found for the Defendant scil Non dimiserunt for it is now no Lease ab initio because the Plaintiff hath not declared upon a Deed and also the Wife by her disagreement to it and Occupation of the Land after the Death of her Husband had made it to be the Lease of her Husband only Trin. 31 Eliz. In the Common Pleas. CXXXII Acton and Pitchers Case IN a Writ of second Deliverance by Acton against Pitcher Leases within 32 H. 8. It was moved if a Lease made by a Prebendary were within the Statute of 32 H. 8. cap. 28. because the said Statute speaks of men seized in the right of their Churches and a Prebendary is seized in right of his Prebend and not in right of the Church But it is the Opinion of the whole Court that he was within the Equity of the Statute Trin. 32 Eliz. In the Common Pleas. CXXXIII Curtises Case IN a Writ of Error it was holden in the Common Pleas Amendment that if a Writ of Error be brought and delivered to the Chief Iustice de Communi Banco and allowed by him under his hand that afterwards the Record cannot be amended by Prothonotary Attorney or Clerk of the Court although that no Record be entred upon the Roll upon which the Writ of Error is brought Mich. 31 Eliz. In the Common Pleas. CXXXIV Scots Case SCot brought a Formedon against A. who made default after default Resceit Anders 133. and now came B. and surmised to the Court that C. was seized of the Land in Demand and gave the same to A. in Tail the remainder to the said B. in Fee and prayed to be received and afterwards the Court upon advice ousted him of the Resceit 28 Eliz. In the Common Pleas. CXXXV Terrets and the Hundred of c. Case IN an Action upon the Statute of Huy and Cry against the Hundred of c. the Defendants pleaded Not Guilty Action upon Statute of Huy and Cry. And in Evidence the Plaintiff to prove that he was robbed offered to the Iury his Oath in verifying his Declaration which Anderson and Periam utterly refused to accept of but Windham Iustice affirmed that such an Oath had been accepted of in the Case of one Harrington Oaths where the Plaintiff could not have other Evidence to prove the Cause in respect of secresie for those who have occasion to travel about their occasions would not acquaint another what monies or other things which they have in their journey and we see that the Law doth admit of the Oath of the Party in his own cause where the Oath shall make an end of the cause as in Debt where the Defendant wageth his Law. Periam That 's an ancient Law but we will not make new Presidents for if such an Oath be accepted of us in this case by the same reason in all causes where is secrecy and no external proof whereupon would follow great inconvenience and although such an Oath hath been accepted of and allowed here yet the same doth not move us and we do not see any reason to multiply such Presidents The Declaration is that the Plaintiff was robbed of 10 l. de Denariis ipsius querentis and upon the Evidence it appeareth that the Plaintiff was Receivor of the Lady Rich and had received the said mony for the use of the said Lady And Exception was taken to the same by Shuttleworth but it was not allowed of for the Plaintiff is accomptable to the Lady Rich for the said mony And it was agreed that if he which was robbed after he had made Huy and Cry doth not further pursue the Felons yet his Action lyeth Mich. 26 Eliz. In the Kings Bench. CXXXVI Townsend and Pastors Case Feoffment by Coparceners Cestuy que uses NOte It was holden in the Common Pleas by
all the Iustices in the Case between Townsend and Pastor two Coparceners are in the use of a Manor after the Statute of 1 R. 3. the one of them enters and makes a Feoffment in Fee of the whole Manor that this Feoffment is not only of the moiety of the Manor whereof she might lawfully and by the said Statute make a Feoffment but also of another moiety by disseisin Mich. 26 Eliz. In the Kings Bench. CXXXVII Bulwer and Smiths Case BUlwer brought an Action upon the Case against Smith and declared how that H. H. had recovered against the Plaintiff in the Common Pleas 20 l. and before Execution died and that the Defendant knowing that at D. in the County of Norfolk malitiose deceptive machinans to Outlaw the Plaintiff upon the said Iudgment in the name of the said H.H. c. in performance of his said purpose at W. in the County of Middlesex took out a Capias ad satisfaciend in the name of the said H.H. against the now Plaintiff upon the said Iudgment directed to the Sheriff of London and Non est inventus being returned upon that took out an Exigent in the name of the said H.H. which Writ by the procurement of the Defendant was retorned and then the Plaintiff was Outlawed and afterwards the Defendant in the name of the said H. H. took out a Capias utlagatum against the Plaintiff directed to the Sheriff of Norfolk by force of which the Plaintiff was arrested and imprisoned for two months until he had gotten his Charter of Pardon by reason of which Outlawries the Plaintiff had forfeited all his Goods and Chattels and upon the said Declaration the Defendant did demur in Law and the principal cause of the demurrer was because that the Action might have been laid in Middlesex where the wrong began scil the Capias ad satisfaciend the Outlawry for this imagination at D. in the County of Norfolk set forth in the Declaration cannot give to the Plaintiff this Action But if divers conspire in one County for to indite one and they put the same in Execution in another County the Party aggrieved may lay his Action in which of the said two Counties he pleaseth 22 E. 4. 14. for a Conspiracy is more notorious than an imagination imaginatio est unius conspiratio plurimorum And in this Case the Deliverance of the Capias at D. in Norfolk is but accessary and the suing of the Process aforesaid at Westminster is the principal upon the part of the Plaintiff it was said that such an action might be laid in the County where the Plaintiff was wronged and the Plaintiff is not tied to lay his Action in the County where the original matter which was but conveyance to the said wrong was done A imprisoned upon a Capias ad satisfaciend in Middlesex escapes into Surrey the Action upon the escape shall be laid in Surrey Reteiner of a Servant in one County who departs in another County the Master shall lay his Action in which of the said Counties he will 15 E. 4. 18 19. 41 E. 3. 1. A Writ of Disceit was brought in the County of York and the Case was that in a Praecipe quod reddat of Land the Tenant shewed forth a Protection at Westminster the which was allowed for a year and within the year the Tenant stayed in the County of York upon his own occasions the said Writ of Disceit was holden to be well laid for there the wrong began notwithstanding that the Original i. e. the casting of the Protection was in Middlesex for the disceit is that the Tenant contrary to the pretence of the Protection continued at York for the Protection was quia Moraturus And always where the cause of the Action consists of two things whereof the one is matter of Record and the other is matter of Fact there the Action shall be laid in such County where the matter in fact may be more properly tried Vide 11 R. 2. Fitz. Action sur le Case 36 Br. Lieu 84. in the principal Case at Bar the Court was of Opinion that the Action was well brought in the County of Norfolk Another Exception was taken to the Declaration because the Plaintiff hath there set forth whereas his true name is John Bulwer by which name he now sues he was sued and outlawed by the name of John Buller and then the now Plaintiff upon that matter was never sued nor outlawed and then is not grieved by the Defendant but John Buller for here in his Declaration there is not any averment that John Bulwer and John Buller are one and the same and not divers Persons But the Exception was disallowed for the whole Court held that for As much as the Plaintiff hath declared that he by the name of John Buller was sued and Outlawed the same is an averment in Law c. and amounts to so much Another matter was objected because it appeareth in the Declaration that H. H. was dead before this Process was sued and then the Outlawry was erronious and so the Plaintiff is not at any mischief but that he may reverse the Outlawry by Error as in Conspiracy the Defendant pleads that the Indictment upon which the Plaintiff is arraigned is vitious and erroneous and so his life was never in jeopardy But as to that it was said by the Court that the erronious proceedings of the Defendant shall not give advantage to himself but because the Plaintiff was vexed by colour and reason of the Outlawry and put to his Writ of Error which cannot recompence the loss and damage by him sustained by reason of the Outlawry aforesaid it is reason that the Plaintiff have his Action wherefore Wray Chief Iustice ex assensu Sociorum gave Iudgment for the Plaintiff CXXXVIII Mich. 27 Eliz. In the Kings Bench. Upon the Statute of 23 Eliz. of Recusancy CErtain Persons were indicted upon the Statute 23 Eliz. for refusing to come to the Church and upon the same were Outlawed and now they came to the Kings Bench ready to make their submission and to conform themselves according to the said Statute and thereupon they prayed to be discharged But the Court would not receive such Submission but advised them to purchase their Pardon for the Outlawry and then to tender their Submission which they did accordingly and at another day came again and shewed to the Court their Pardon whereupon the Clerk of the Court asked them if they would conform themselves according to the said Statute who said they would wherefore they were discharged Mich. 27 Eliz. In the Kings Bench. CXXXIX Christian and Adams Case Action for words AN Action upon the Case was brought for speaking these scandalous words of the Plaintiff scil the Plaintiff did conspire the death of the Defendant it was found for the Plaintiff and moved in Arrest of Iudgment that upon the matter the Action did not lye for the bare conspiring of the death of a man
the overthrow of an Estate as the Statute which gives That if a Woman consent to a Ravisher that the next Heir shall enter if the Daughter entreth and afterward a Son is born he shall not put out the Daughter because the Statute shall not be drawn to a private intent to the overthrow of an Estate vested before lawfully in the Daughter Therefore neither in our Case the Act shall not be drawn to a private sense for the benefit of the Countess to overthrow the Lease for years and it is not like to the Case which hath been put If he make a Lease for twenty years and for other twenty years the same is not good by the Act which Case I agree for that is a Lease for forty years Egerton Solicitor contrary 1. As to the word Demise from dismission the same is nothing else but a letting of the Land. Lo Lease is from Laiser a French word and such a Demise at a day to come is an Interest of a Lease and not a Lease it self for he hath not let the Land As if I say I let you my Land for 21 years When shall you have my Land Shall you have my Land at a day to come or presently If I fell you Land and Covenant that it is discharged of all other Incumbrances than Leases for 21 years and there is a Lease to begin afterwards for 21 years I have broken my Covenant If I am bound to make you a Lease for 21 years and I say to you I make a Lease to you to begin 200 years after I have forfeited my Obligation If the custom of a Manor be that Dominus pro tempore may make Leases for 21 years may he make a Lease to begin 20 years after Truly not if there be not a Special Custom to make it good If I give authority to my Steward to make Leases of my Lands for 21 years he cannot make a Lease to begin at 100 years hereafter As to the Case of the Duchy there the Condition is that he shall make Leases according to his discretion therefore there he may make such Leases as he pleaseth As to the Statute of Richard 2. which enables Cestuy que use it is not like to our Act or Statute for that is that Feoffments Estates c. therefore he may make such Leases without doubt If I devise that my Executor shall make Leases of my Lands for 21 years he cannot make a Lease for to commence 100 years after and if they do not make them within convenient time the Heir shall avoid their Authority So the Statute Law hath such Exposition that the precise time ought to be observed as the Statute of 14 E. 3. Cap. 18. 1. Receit to Voucher 8. If the Tenant vouch to warranty a dead man and the Demandant will aver that the Vouchee is dead or that there is none such there the Averment shall be received without more delay Vpon that Statute the Case in 21 E. 3. where one vouched to warranty and a Summoneas ad Warrantizandum issued and then came the Demandant and would have averred that the Vouchee is dead the Tenant said he ought to aver the same upon the Voucher to warranty and that now he had surceased his time to take advantage of the time and the Demandant said That the Statute did not bind him to that nor prescribed any time but left the same generally yet by the Court it was awarded that he should have the Averment the time of the Voucher or not at all So the Statute of 11 H. 7. cap 20. If a woman who hath a Ioynture for life or in Tail and suffers a Common Recovery according to the Statute of 11 H. 7. cap. 20. and afterwards the Issue in Tail releaseth all his right by Fine and dieth his Issue may enter for the assent ought to be by Voucher in the same Action and the like for if there be a mean instance between the Recovery and the Assent then any Assent after is nothing to the purpose for the Recovery being once void by the Statute it cannot be made good by assent afterwards Vide Dr. Student 54. and yet the Statute saith Provided that the Act shall not extend to any such Recovery Discontinuance c. if the next heir be assenting to the same Recovery c. so as the same Assent or Agreement is of Record or enrolled and doth not say If the Assent ought to be at one time or at another But to come to Leases upon Statutes Before the Statute of 2 E. 6. cap. 8. if Leases were not found by Offices they should be ousted and put to their Traverse But put case that after that Statute a Lease to begin at a day to come is not found by Office shall it be aided by that Statute No truly and so it is holden in the Court of Wards at this day And the Lord Chief Iustice of England so held in his Reading at Lincolns Inn The Statute of 1 Eliz. of Leases to be made by Bishops is that Leases other then for 21 years from the time that they begin that is when they take effect as a Deed and when they take effect not to be executed for so they might make infinite Leases Quaere the further part of Egertons Argument in this Case And vide in Cooks 1 part of his Reports where this Case is reported to be adjudged that the Lease made in Reversion by the Earl was a void Lease Mich. 29 Eliz. In the Common Pleas. DEbt brought upon an Escape in L. the Defendant said That he suffered him to escape in C. by the commandment of the Plaintiff without that that he escaped in L. It was holden to be no Plea. But in an Action upon a false imprisonment in L. he may justifie That he was Sheriff of C. and took him by force of a Writ without that that he imprisoned him in L. Rodes Iustice One brings an Action upon an Escape in L. and in truth he never was in L. after the Escape in an Action he shall recover Periam and Rhodes Where the matter of Iustification is tied to a place there the place is traversable And Rhodes said There was a Case adjudged in an Action by Davage against the Mayor of Lynn where the Defendant justified as a special Iustice within the Town and traversed the place alledged by the Plaintiff Mich. 29 30 Eliz. In the Kings Bench. CLXI Scot and Scots Case Common Recovery 2 Leon. 128. 3 Leon. 225. 1 Cro. 73. GEorge Scot the Elder sued a Replevin against George Scot the Younger The Case was this One Georgo Scot 20 H. 8. being Tenant in Tail of certain Lands suffered a Recovery to the use of his last Will and 25 H. 8 by his Will declared That he willed that the Recoverers make a good and favourable Lease to Hugh Scot his younger Brother and 25 H. 8. they make a Lease to Hugh Scot for ninety nine years reserving
Praepositus Socii Scholares Collegii Reginalis in Oxonia Gardianus Hospitalis c. And in an Ejectione firmae upon that Lease it was found for the Plaintiff It was objected in Arrest of Iudgment That this word Gardianus ought to be in the Plural Number Gardiani for the Colledge doth consist of many persons and every one of them capable and not like to Abbot and Covent The Court was all of Opinion that the Exception is not to be allowed but that as well the Lease as the Declaration were both good for the Colledge is a Body and as one Person and so it is as well Gardianus 30 Eliz. In the Common Pleas. CLXXX Greens Case AN Action upon the Statute of Huy and Cry was brought by Green The Case was Upon Statute of Hue and Cry. That the Plaintiff delivered to his Servant certain monies to carry the same from Bristol to London in which journey the Servant was robbed upon which matter the Master brought his Action It was moved That the Plaintiff by the Statute of 27 Eliz. c. 13. is not a person able to bring this Action because he was not examined twenty days before the Action was brought but the Exception was disallowed for the Court was clear of Opinion that the Master should not be examined but the Servant CLXXXI 30 Eliz. In the Common Pleas. THis Case was moved upon the Statute of 1 and 2 Phil. and Mary cap. 12. The Town of Coventry was within the Hundred of Offley in the County of Stafford and Queen Mary by her Letters Patents made the said Town a County And now a Distress was taken in the residue of the said Hundred and brought into the Town of Coventry and if that be within the Statute was the question It was holden by the Court clearly That now the Town of Coventry is exempted out of the Hundred aforesaid and is a thing by it self and it is a good challenge for the Hundred of Offley that the Iuror challenged dwells in the Town of Coventry for now it is not parcel of Offley as to the King But as to the Lord of the Hundred the said Town remains parcel of it notwithstanding the Queens Grant. And the Citizens of Coventry shall do suit at the Court of the Hundred but in an Action upon the Statue of Hue and Cry of a Robbery committed in the residue of the Hundred the Citizens shall not be charged 25 Eliz. In the Common Pleas. CLXXXII Dolmans Case A. Seized of a Mannor to which two parts of the Advowson was appendant presented and afterwards aliened the Manor cum pertinentiis the Alienee presented and purchased the third part of the Advowson and presented again one J. S. Chaplain to the Earl of Rutland who had a dispensation and took another Benefice and was inducted 1 Eliz. and died 11 Eliz The Queen presented for Lapse and her Clerk was instituted and inducted the Alienee Lord of the Manor died seized inter alia this Manor was allotted to the Wife of Dolman for her part and he brought a Quare Impedit It was moved If Dolman should not joyn in this Quare impedit with her who had the third part and by Walmsley he need not Vide 22 E. 4. 8. By Brian If an Advowson descend to four Coparceners and they make Partition to present by turns and the third presents when the second ought for that time his presentment is gone but when it comes to his turn again he shall present which proves that they are several Tenants CLXXXIII Mich. 26 Eliz. In the Common Pleas. ONe recovered certain Copyhold Lands in the Court of the Lord of the Manor by Plaint in the nature of a Writ of Right It was moved in the Common Bench If a Precept may be made and awarded out of the said Court for the Execution of the said Recovery and to put him who recovered in possession with the Posse Manerii Posse Manerii Comitatus differ as in such Case at the Common Law with Posse Comitatus it was resolved clearly that force in such Cases is not justifiable but by Mandate out of the Kings Courts Hil. 29 Eliz. In the Common Pleas. CLXXXIV Anne Bedingfields Case DOwer was brought by Anne Bedingfield against Thomas Bedingfield the Tenant brought out of Chancery a Writ de Circumspecte agatis containing this matter that it was found by Office in the County of Norfolk that the Husband of the Demandant was seized of the Manor of D. in the County of Norfolk and held the same of the Queen in Chief by Knight Service and thereof died seized the Tenant being his Son and Heir apparent and of full age by reason of which the Queen seized as well the said Manor as other Manors and because the Queen was to restore the Tenements tam integre as they came to her hands it was commanded them to surcease Domina Regina inconsulta It was resolved that although the Queen be intituled to have Primer Seisin of all the Lands whereof the Husband died seized yet this writ cannot extend to any Manors not found in the Office for by the Law the Queen cannot seize more Lands than those which are found in the Office and therefore as to the Land found in the Office the Court gave day to the Tenant to plead in chief And it was argued by Gawdy Serjeant for the Tenant that the Demandant ought to sue in the Chancery because the Queen is seized to have her primer Seisin And cited the Case 11 H. 4. 193. And after many Motions the Court clearly agreed that the Tenant ought to answer over for the Statute of Bâ—gamis cap. 3. pretends that in such Case the Iustices shall proceed notwithstanding such Seisin of the King and where the King grants the Custody of the Land it self 1 H. 7 18 19. 4 H. 7. 1. Ã multo fortiori against the Heir himself where he is of full age notwithstanding the Possession of the King for his Primer Seisin by the Statute of Bigamâ—s where the Heir was of full age there the wife could not be endowed in the Chancery But now per Prerogativa Regis cap. 4. Such women may be there endowed si Viduae illae voluerint And after many Motions the Court Awarded that the Tenant should plead in Chief at his peril for the Demandant might sue at the Common Law if she pleased Vide Cook 9. Part Acc. CLXXXV Savages Case ONe Savage was presented to a Benefice and afterwards took another and then purchased a Dispensation which was too late and then was qualified and afterwards accepted of the Archdeaconry of Gloucester and Underhil who had the Archdeaconry libelled against the said Savage in the Spiritual Court. Vide the Case reported in the first Part of Leonards Reports Sect. 442. Ideo Quaere there CLXXXVI Pasc 26 Eliz. In the Kings Bench. HVsband and wife Copyholders for Life the Husband surrendred to the Lord who granted the Land over by Copy to a Stranger
of Debt amounting to the sum of 80 l. Solubiles eidem querenti to be received by the Defendant at Roan in Normandy to his own use the Defendant promised to pay to the Plaintiff 60 l. and upon this matter Iudgment was given and now a Writ of Error was brought and assigned for Error because it is not shewed in the Declaration that the Bills were sealed or that they were made to the Plaintiff and here is not any consideration for the Defendant hath not any remedy to compel the Parties to pay the said debts if they refuse Godfrey If the mony be not paid at Roan to the Defendant he shall have an Action upon the Case for this is an Assumpsit in Law which Wray concessit for it is a mutual promise and agreement And it was argued to the contrary that here is not any sufficient consideration for it doth not appear that the Defendant hath any remedy for to recover the mony And 13 Eliz. it was holden that where the Plaintiff declared in an Action upon the Case that in consideration that he had delivered a Bill of Debt to the Defendant and hath made a Letter of Attorney upon it c. the Defendant promised to pay to the Plaintiff 20 l. and because that the Plaintiff notwithstanding that might release the debt or revoke the Letter of Attorney and so defeat the Defendant of the whole profit c. that the Action upon the matter did not lye Also for another cause the consideration is not sufficient for it is illegal because maintenance but if it was upon the consideration precedent it had been good enough As if J be indebted to A. and B. is indebted to me J. may assign to A. the debt which B. oweth me Golding Although the consideration be but of small value yet it is good enough And if A. in consideration B will assure to him the Manor of D. promise to pay to B. 100 l. although the Party hath not any interest or title to it yet it is good and also though the consideration be Executory yet it is valuable for if the mony be not paid at Roan the Defendant shall have an Action upon the Case against the Plaintiff It was also objected that upon the Declaration it doth not appear that the Defend if the two Bills be not paid may have an Action upon the Case against the Plaintiff for there is not any express Assumpsit on the Plaintiffs part that the monies due by the Bills to the Plaintiff shall be paid to the Defendant for if it had been so then it had been good for then there had been a reciprocal promise which is not here nor can be collected by any words in the Declaration Cook It doth not appear upon the Declaration by whom nor to whom the mony due by the two Bills shall be paid for it may be that they are due to the Defendant and then the delivery of the two Bills is not any consideration Quod Clench Gawdy concesserunt The Case was adjourned CCIV. Temps Roign Eliz. THe Case was A. enfeoffed B upon Condition that if he pay ten pound to the Feoffee his Executors and Assigns within three years next ensuing that then c. The Feoffee hath Issue three Sons whom he makes his Executors and dyeth before the day of payment The Ordinary commits Letters of Administration to J. S. during the minority of the Executors It was the Opinion of Dyer that it was the surest way for A. to pay the monies to the Executors no withstanding the administration committed to another for the Administrator in such Case is but a Bailiff or Receiver to the Executors and shall be accountable to them which Harper concessit And Manwood said That if in that Case the monies be paid to one of the Executors it is sufficient and the monies to be paid upon that conditional Feoffment are as a sum in gross and not in the nature of a Debt quod caeteri Justiciarii concesserunt CCV Temps Roign Eliz. A Lease is made of certain Lands for years Proviso that the Lessee shall not put his Cattel upon the Land from Michaelmass to St. Andrews Tide the Question was If this Proviso and Restraint shall reach for the whole Term or but to the first year Dyer Conditions are stricti juris and ought not to have liberal constructions therefore he conceived that the condition should be restrained to the first year and should not further extend Manwood If I be bound that I will not go to London between Easter and Michaelmas it shall not extend only to the first year after the date of the Obligation but for my whole life Hil. 32 Eliz. In the Common Pleas. CCVI. Doughty and Prideaux Case ACtion upon the Case by Doughty against Prideaux upon these words Thou art a wicked and perjured Fellow 3 Leon. 269. and art forsworn in the Court of Star-Chamber as it appeareth by an Exemplification here under the Seal of that Court The Defendant justified by reason of a Bill exhibited in the said Court by one Brooks against the now Plaintiff for conspiring with another to endite the said Brook of certain Felonies and the Defendant now Plaintiff in his answer to his said Bill denied upon Oath the said Conspiracy and Sentence was given in the said Court against the now Plaintiff ubi revera such Conspiracy was The Plaintiff by Replication said That the said Brook was arraigned and endicted upon the said Indictment and prayed his Clergy whereupon it appeared that the said Brook was not legitimo modo acquiet ' and the same can be no Conspiracy in the now Plaintiff to prove the said Brook to be indicted And by Walmesley and Periam the Replication is not good for it may be that Brook was acquitted and yet that the Plaintiff conspired upon which a Writ of Conspiracy perhaps will not lye but an Action upon the Case without doubt for the Replication doth not prove that the Plaintiff did not conspire but that the Plaintiff was not punishable for such Conspiracy CCVII. Pasc 33 Eliz. In the Common Pleas. AN Abbot made a Lease to three men for eighty years and in the end of the said Lease there was a clause Proviso That if they dyed within the said Term that then the Lessor might enter The Possessions of the Abby came to the King who granted the Reversion to J. S. who made a new Lease to J. D. for twenty and one years to begin after the Expiration Determination or Surrender of the former Lease The three Lessees dyed within the term If J. D. might enter before J. S. had entred was the Question It was the Opinion of the Iustices that he could not for it is in the Election of J. S. if he will take advantage of the Condition and defeat the Lease but that ought to be by Entry and none can make such Entry but the Lessor himself or by his express direction Trin. 31 Eliz. In
that the same is not any Claim to avoid the said Fine upon the Statute of 4 H. 7. Pasc 29 Eliz. CCXIII. The Queen and Sir John Savells Case A Bill of Intrusion was exhibited by the Queen in the Exchequer against Sir Robert Savell Kt. who pleaded in bar her pretence and upon Issue joyned the matter was tryed by the Records and thereupon Iudgment was given for the Queen and an Injunction for the Possession awarded accordingly Sir Robert dyed and now Sir John Savell Son and Heir of the said Sir Robert brought a Writ of Error in the Exchequer Chamber upon the Statute of 31 E. 3. The perclose of which Writ was ad grave damnum ipsius Johannis Savell filii haeredis dicti Roberti It was objected against the Writ That no Writ of Error upon the said Statute of 31 E 3. lay upon such proceedings which at the time of the making of the said Statute was not in force For tryal of an Issue in the Exchequer by Record was enacted by the Statute of 33 H. 8. and the Statute of 31 E. 3. extended to give a Writ of Error upon such Iudgments which were given by Verdict Confession or Demurrer and not upon tryal by Records which was given but of late times But to this objection it was answered by the Lord Chancellor and the other Iudges That long time before the said Stat. of 33 H. 8. Issues joyned in the Exchequer have been tryed by the Records and he when he was the Queens Solicitor had seen divers Presidents to that intent in the time of Hen. 6. Mich. 29 Eliz. In the Kings Bench. CCXIV. Houtiers Case DEbt was brought upon a Concessit Solvere according to the Law of Merchants and Custom of the City of Bristol Exception was taken because he did not mention the Custom in his Declaration And because in the end of his Plea he saith Protestando se sequi querelam secundum Consuetudinem Civitatis Bristol the Plea was awarded good and the Exception disallowed CCXV Mich. 29 Eliz. In the Kings Bench. A Man was indicted upon the Statute of 4 Eliz. of Perjury in a Court-Leet And the Indictment was That he at the Leet of the Earl of Bath super Sacramentum suum coram Senescallo c. Exception was taken to it because it saith at the Leet of the Earl of Bath whereas every Leet is the Kings Court although that another hath the profit or commodity of it And it was said that the Steward of a Leet is not an Officer of Record and also his Oath was If he had done a Rescous or not with which he was charged And by Drew It is not within the Statute for it ought to be either before a Iury in giving Evidence or upon some Article But the Iustices in that were of opinion against him Mich. 25 Eliz. In the Common Pleas. CCXVI Howen and Gerrards Case IT was adjudged in this Case That Partition of Lands made by the Bayliff of a Franchize was not good within the Statute of 31 H. 8. of Partition but it ought to be done by the Sheriff himself Mich. 28 Eliz. In the Kings Bench. CCXVII Strangder and Burnells Case AN Action upon the Case of Trover of Goods and converting them to his own use in Ipswich The Defendant pleaded That the Goods came to his hands in Dunwich in the same County and that the Plaintiff gave to him all Goods which came to his hands in Dunwich absque hoc that he is guilty of any Trover or Conversion in Ipswich It was holden to be a good manner of pleading by reason of the special Iustification Vide 27 H. 6. But where a Iustification is general the County is not traversable at this day Vide 19 H. 6 7. 62 Eliz. In the Common Pleas. CCXVIII Hodges Case IF one enfeoffeth his Son and Heir apparent and no use is expressed nor Consideration it was said It should be to the use of the Son and so hath the Law been taken and so it is in Case of a Covenant to stand seized to the use of the Son. The Court said that there was a difference betwixt the Cases or in the Case of Feoffment they seemed to be of Opinion that the Deed should have no operation but in the other Case it may be otherwise upon construction of the Result of the Vse to the Father 28 Eliz. In the Kings Bench. CCXIX. Mark Stewards Case AN Assumpsit before Action brought may be discharged by word otherwise after Action brought Mich. 30 Eliz. In the Common Pleas. CCXX Verney and Verneys Case IN Dower by Verney against Verney The Case was That Lessee for years by Fine to whom the Land was rendred by Fine for years upon the Default of the Tenant prayed to be received and it was Counter-pleaded because the Statute of Gloucester gave no Receit but where the Termor might have Recovery by Writ of Covenant but where the Lease as in our Case doth commence by render by Fine there cannot be any recovery by Covenant But it was the Opinion of the Lord Anderson That such a Termor shall be received CCXXI Mich. 32 Eliz. In the Exchequer Chamber IN the Exchequer Chamber before the Chancellor Treasurer c. A Writ of Error was cast upon the Statute of 31 E. 3. cap. 12. It was moved by Egerton Solicitor to the Queen for the Defendant That the Writ of Error ought to abate for false Latine for the Writ is Pertenet where it ought to be Pertinet But by Manwood Anderson and Wray The same is no Exception but notwithstanding that the Court may proceed to the Examination of the Errors For the same is not properly a Writ but rather a Commission to the Chancellor Treasurer c. and therefore it was ordered that the Party should proceed to the assignment of the Errors Mich. 31 Eliz. In the Exchequer CCXXII The Queens Fanes and the Archbishop of Canterburies Case THe Queen brought a Quare Impedit against Fane 1 Leon. 201. the Archbishop of Canterbury the Bishop of Chichester and Hudson Incumbent and counted that John Ashburnham was seized of the Advowson of Burwash and was Outlawed in an Action of Debt during which Outlawry in force the Church voided by which it did appertain to the Queen to present The Archbishop and Bishop pleaded that they claimed nothing but as Metropolitan and Ordinary Fane pleaded That King E. 4. ex gratia sua speciali c. and in consideration fidelis servic c. granted to the Lord Hastings the Castle and Barony of Hastings and Hundred c. Et quod ipse haberet omnia Bona Catal. Tenentium residentium non residentium aliorum resident quorumcunque hominum de in Castro Baronia c. seu infra eadem pro numero debit c. tam ad sectam Regis c. quam c. utlagatorum Et quod ipsi liceret per se vel ministros suos c. and from him derived to
the Office. Vide Stanford Prerogat 54 55. and Vide 20 E. 4. 11. A. seized of a Mannor with an Advowson appendant is attainted of Treason the Church void the King without any Office shall have the presentment But admitting that it is not in the King without Office yet the Pardon of 23 Eliz. doth not extend to it For the words of the Pardon are Treasons Felonies Offences Contempts Trespasses Entries Wrongs Deceits Misdemeanors Forfeitures Penalties and Sums of Moneys and if by any of these words the matter be helped is to be considered and if any thing shall help it it is the word Forfeiture But I conceive that the same doth not extend to this matter for although it be an ample word yet it shall be construed to extend beyond the words accompanied with it which concern only personal things as Contempts Wrongs Trespasses as the Statute of 13 Eliz. cap. 10. which is penned by general words as Colledges Deans and Chapters Parsons Vicars and others having Spiritual Promotions that Statute doth not extend by construction to Bishops and they have Spiritual Promotion yet the Statute shall be construed to extend to the Parties named and other Inferiour Orders and Degrees and shall not be extended higher So in the Commission of the Peace ad diversas Felonias alia Malafacta c. those general words do not extend to Treason c. Vide for the Residue of this Case Venable and Harris's Case which was the same Case and is Reported in Leonard 2 Part fol. 122. Placito 169. Pasc 33 Eliz. In the Common Pleas. CCXXIX Downhall and Catesoy's Case IN a Formedon by Downhall against Catesby 3 Leon. 267. the Parties were at Issue and it was tryed by Nisi prius It was moved in Bank because that some of the Iury did eat and drink before they gave their Verdict that the Court would not receive the Postea Curia that we cannot do for we not know whether your Information be true or not and this matter ought to be examined by the Iustices of Assize or Nisi prius before whom the Trial was and they are to certifie thereof and then we shall have good cause to stay the Entry of the Postea In that Case it was said If any of the Iurors eat and drink before their Verdict at their own Costs it doth not make the Verdict void but if at the Costs of the Plaintiff or Defendant it is otherwise CCXXX Hil. 29 Eliz. In the Common Pleas. THe Sheriff took an Obligation of a Prisoner bailable upon condition that he should personally appear in the Kings Bench c. It was holden a good Condition not against the Statute of 23 H. 6. So if the Condition had been that he should appear for to answer contrary that he shall appear and answer for in the principal Case the word personally is not of substance for although he appears by Attorney yet the Condition is well performed and Iudgment was given for the Plaintiff Anderson reclamante Vide 27 Eliz. B. R. Sedford and Cutts Case 32 Eliz. In the Common Pleas. CCXXXI Haselwoods Case THe Case of Haselwood A seized of Land is indebted to the King by Obligation and enfeoffed B. of his Land And the Case of Fleetwood 15 Eliz. was vouched where it was holden That in purchase the debtor of the King was lyable But by Pigot who was of Counsel with Haselwood the Obligation in this Case was made before the Statute of 33 H. 8. or otherwise he should be charged 32 Eliz. CCXXXII Sir William Pelhams Case SIr William Pelham was Surveyor of the Ordinances and delivered of the Kings money to Painter Clerk of the Ordnance It was holden That for that money the Queen might have Account against Painter See this Case before Sect. 81. Trin. 29 Eliz. In the Common Pleas. CCXIV. Ognell and Vnderhills Case IN Replevin the Case was as appeared upon the pleading That Rob. Bouchier was seized of a certain Farm called Cruchefield Grange and leased the same to Sir William Raynsford for thirty years who dyed thereof possessed by reason of which the Interest thereof came to Raynsford as Executor of the said Sir William Raynsford who assigned the said Farm except a parcel of it called Hobbes to Sir Henry Bear for parcel of the term and afterwards assigned the said parcel called Hobbes for part of the term to Frekington and others and afterwards granted the residue of the said term not expired to the said Bear and Frekington and afterwards the said Rob. Bouchier granted a Rent-charge of 40 l. per annum percipiendum de omnibus terris renementis quibuscunque vocat the Grange of Cruchefield in the Parish of Stoneleigh in the County of Warwick nuper in tenura occupatione William Raynsford milit nunc in tenura occupatione Hen. Bear. Bouchier granted the reversion of Hobbes to Lewknor in Fee to whom Scarre releaseth all his right estate and demand in the said Land called Hobbes the Lease expired the rent behind Lewknor leased at will to R. the first Question was If the said Rent-charge shall be said issuing out of the said Lands called Hobbes for if c. then by that Release the rent is gone But the whole Court was clear of Opinion That the rent was not issuing out of Hobbes but out of the Lands then in the possession of Bear and not out of the Lands in the possession of Frekington Although it was objected by Walmesley Serjeant That the words in the Grant of the rent in tenura occupatione Bear shall be construed in the disjuncive quasi sive and then the Close called Hobbes although it was not in the Occupation yet it was in tenura of Bear. The Matter was at another day argued by Fenner Serjeant for the Plaintiff and he much relyed upon the word quibuscunque in the Grant of the Rent de omnibus terris quibuscunque commonly called Cruchefield Grange As if I grant to you all my Trees my Apple-trees shall not pass but if the Grant was omnes arbores meas quascunque they pass and that by the Emphasis of this word Quibuscunque So if I grant you Common for your Cattel in such a place none shall have Common but those which are Commonable shall have Common there contrary where the Grant is pro averiis quibuscunque And it was adjudged in the Chancery in the Case of the Bishop of Ely That where the said Bishop leased all the Demeasns of a Manor for years that by the said Lease the Park within the said Manor should not pass But perhaps if such a Lease had been Omnes singulas terras dominicales quascunque the Park would have passed And afterwards the Counsel of the Plaintiff seeing that the Court was of Opinion with the Defendant took Exception to the pleading The Defendant made Conusans ut Ballivus Administratoris of the Grantee of the Rent and doth not shew the Letters of Administration And as to
any thing which sounds to the disinheriting of him in the reversion although in truth the same doth not touch the Inheritance yet it is a forfeiture Vid. 39 E. 3. 16. If Tenant for life pleads any thing against the right of him in the reversion it is a forfeiture and by Finchden and Belknap he cannot plead in the right 5 Ass 3. Tenant for life is impleaded in a Praecipe by a stranger and confesseth the Action upon which the Demandant hath Iudgment the Lessor enters against whom the Demandant sueth Execution The Lessor brought an Assise and had Iudgment to recover for it is a forfeiture because the Tenant for life hath admitted the reversion in another because it is an alienation to the disinheriting of the Plaintiff and of the Lessor 12 E. 3. Fitz Resceipt 14. where Tenant for life pleaded in chief or cannot deny or gainsay the Action of the Demandant or makes default by Covin he shall forfeit his Estate But if a rent be demanded against Tenant for life and he rendreth the same it is no forfeiture 12 Ass 31. Tenant for life is impleaded by Covin between him and the Demandant and pleads in chief without aid prayer upon which Iudgment is given he in the reversion enters in a Juris utrum against Tenant for life who pleads feintly traversing the point of the Action he in the reversion shall not be received for in as much as the Tenant hath traversed the Action he is not within the Statute of West 2. 3 5. Default Reddition but he in the Reversion may enter by the Common Law 22 E. 3. 2. In Scire facias to execute a Fine against Tenant for life who pleaded to the Inquest whereas in truth the Land in demand was not comprised within the Fine Iudgment is given for the Demandant in the Scire facias he in the reversion may enter In our principal case here is apparent and manifest Covin for the Tenant for life voucheth without cause and this Recovery is by assent and is to the use of the Vendee who is Tenant for the life of another and therefore by the Common Law he in the Remainder may enter before Execution sued And it is well known that these common Recoveries are used for to dock Remainders in Tail and that was the scope of this Recovery And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat who voucheth a stranger the Demandant counterpleads the Voucher and it is found for him he in the Reversion hath no remedy but by a Writ of Right and if the Vouchee entreth and loseth by Action tryed or default ut supra that Book is to be intended of a Recovery executed for there in such case he in the Reversion hath not an Entry but is put to his Writ of Entry by the Common Law Vide Br. Title Forfeiture 87. 24 H. 8. Tenant for life is impleaded and prays in the Aid of a stranger he in the Reversion may enter but if he doth not enter until the other hath recovered then he cannot enter but is put to his Writ of Entry Ad terminum qui praeteriit vel de ingressu ad Communem Legem and therein he shall falsifie the Recovery and there by Brook Voucher of a stranger is not cause of Forfeiture for it doth not disaffirm the Reversion in the Lessor And he vouched 24 E. 3. 68. where Tenant for life pleaded in the right with aid prayer And so he argued that before Execution he in the Remainder might enter but after Execution is put to his Action But in our Case although that Execution be good yet he in the Remainder may enter for it is found by Verdict that at the time of the Recovery he was within age and that when he dyed that he in the next Remainder was within age and then no Entry shall be imputed and then he shall not be driven to his Action As if Tenant by the Courtesie makes a Feoffment with warranty and dyeth and the same descends to his Heir within age yet he shall enter although he hath not avoided the warranty in the life of his Ancestors Also he said that the Statute of 32 H. 8. extended to this Case for Sir William Pelham the Vendee was but Tenant for life and although that he be but Tenant for the life of another yet he is Tenant for life as fully as if he were Tenant for his own life or otherwise Tenant for life or lives Note this the words of the Statute As upon the Statute of 20 E. 1. which gives Resceipt de defensione juris the words are Cum quis aliquod breve Domini Regis impetret versus Tenentem per Legem Angliae vel feod taliat ' vel sub Nomine Dotis vel alio modo ad terminum vitae upon these words it is holden 11 H. 4. That where Land was given to one and his heirs for the life of another that upon such an Estate he in the reversion should be received by reason of these words vel alio modo ad terminum vitae c. And although he who enters at the time of the recovery was not next in remainder to the particular Estate yet he is within the Statute of 32 H. 8. For he was in remainder at the time of the recovery and at the time of the entry he in the immediate remainder was dead and then he the next in remainder Vide 15 E. 4. 9. by Litt. If I grant my Services to one for life and he in a Praecipe brought against him pleads in the right or grants to another the said Services in Fee it is not a Forfeiture for it is no Discontinuance It will be objected That the words of the Statute of 32 H. 8. are That such recoveries shall be utterly void and if so then he in the reversion cannot be damnified and then no cause of Forfeiture So that it may be easily answered That where Tenant for life doth any thing which sounds to the disinheriting of him in the reversion by matter of record although the same doth not devest or otherwise prejudice the Inheritance yet it is a Forfeiture Cook to the contrary Here in our Case is not any Covin in Sir William Pelham the Bargainee he was deceived by the Bargainor for he did not know but that the Bargainor was seized in tail according to the Covenant in the Indenture by which the Bargainor covenanted that he was seized in tail at the time of the Bargain and also to do any other act for assurance of the Estate of the Bargainee and it was lawful for him to Vouch his Bargainor and although he voucheth a stranger it is not a Forfeiture 39 E. 3. 16. Aid prayer of a stranger is a Forfeiture and the reason of that is because he acknowledgeth the reversion to be in a stranger and that is the cause of Forfeiture Vide Book of Entries 254. Where upon
Aid prayer the Party to have Aid shewed such Special matter But in our Case the Tenant for life hath vouched his Bargainor and not without cause for he hath a warranty from him and the Demandant cannot Counterplead it for he had a Seisin whereof he might make a Feoffment As to the Case 14 E. 3. Fitz. Resceit 135. Lessee for life in a Praecipe against him without Aid prayer pleadeth to the Enquest the first day he in reversion may enter It is true he may enter and enter into the Resceit but not into the Land for a Forfeiture For then Fitzherbert would have abridged that Case in the Title of Entre Congeable and not in the Title of Resceit And the Book in 5 Ass 3. is good Law for there the Tenant doth confess the reversion to be in another but in our Case the Tenant voucheth which is a lawful Act and according to the Covenants of his Purchase And although the recovery was by agreement yet it is not for that a Forfeiture for if the Tenant for life voucheth truly it is not a Forfeiture Before the Statute of West 2. cap. 3. which gave resceit to a woman and to those in reversion where the particular Tenant is impleaded and made default reddere noluerit no remedy for these Cases but a Writ of Right but no Entry and that was for the credit which the Law gave to recoveries car si puissoit then is resceit given but that only in the two Cases aforesaid But afterward because it was found that many particular Tenants being impleaded would plead faintly The Statute of 13 R. 2. gave resceit in such case And upon what reasons were these Acts made if in such cases the Entry was lawful But after these two Statutes another practise was devised for such particular Tenants would suffer recoveries secretly in such sort that those in the reversion could not have notice of it so as they could not ante judicium and prayer to be received for the remedy of which mischief the Statute of 32 H. 8. was made by which all recoveries had against the Tenant by the Curtesie or otherwise for life or lives by agreement of the Parties of any Land whereof such particular Tenant is seized should be void as Tenant by the Curtesie c. should be void against him in the reversion And yet an Evasion was found out of that Statute for such particular Tenant would make a Feoffment with warranty and then the Feoffor should be impleaded in a Writ of Entry and he vouch the Tenant for life who should vouch over and such a Recovery was out of the Statute of 32 H. 8. for the recovery was not against such particular Tenant c. For the remedy of which mischief the Statute of 14 Eliz. was made by which it was provided that such recoveries had where such particular Tenant shall be vouched should ve void if such recovery be had between them by Covin And he conceived That the Forfeiture is not in respect of the recovery it self but of the Plea pleaded by the Tenant And here in our Case there is not any Covin found or that Sir William Pelham knew that he was but Tenant for life but it was found that the recovery was with their assent and that was lawful as this Case is for they may agree to have such recovery for further assurance and so Sir William Pelham hath not vouched any but his Bargainor and that according to their Covenants and this Bargainor was not a bare Tenant for life but had also a remainder in tail although not immediately depending upon the Estate for life which he cut off therefore it was not meerly a feigned recovery And Vide 5 E. 4.2 Br. Forfeiture 87. where Tenant for life being impleaded in a Praecipe voucheth a stranger it is not a Forfeiture for it doth not disaffirm the reversion c. contra of Aid prayer for a stranger may release with warranty to Tenant for life upon which he may vouch And he reported in his Argument That Bromley Chancellor of England sent him to the two chief Iustices to know their Opinions upon these Points and they were of opinion That the Voucher of a stranger was not any Forfeiture and also that after the recovery was executed he in the remainder could not enter but they conceived that the right of him in the remainder was not bound And he said That after the recovery executed he in the remainder could not enter which see Br. Forfeiture 87. 24 H. 8. For if Entry in such Case had been lawful infiniteness of Suits would follow which would be a thing against the credit of recoveries As to the Objection of the Infancy the same will not help the matter 6 H. 8. Br. Saver default 30. Recovery had against an Infant in which he voucheth and loseth is not erronious contrary upon default And if an Infant Tenant in tail suffereth a recovery it is discontinuance for in such Recovery Infancy is not respected And in a Scire Facias upon a Iudgment had against the Father the Heir shall not have his age And he cited a Case out of Bendlowes Reports 5 Eliz. Tenant for life the remainder over to a stranger in Fee Tenant for life is disseized by Covin in a Praecipe quod reddat against the Disseisor he voucheth the Tenant for life who entreth into the Warranty generally and voucheth over the common Vouchee It was adjudged that that recovery was out of 32 H. 8. for the recovery was not had against the particular Tenant but he was but Tenant in Law quia Vouchee and also the recovery is a good bar to him in the remainder notwithstanding that he was within age at the time of the recovery And at another time it was argued by the Barons and Clark said That he conceived that the Entry of him in the remainder was lawful It hath been objected that Pelham did not know that the Bargainor had but for life or that any other person had any remainder in the Land that is to no purpose to excuse him for 42 E. 3. every Purchasor ought at his own peril to take notice of the Estates and Charges upon the Lands which he purchaseth For the Law presumes that none will purchase without advice of Counsel and without knowing the Titles of the Land. And although Statutes have been made to provide against the practises of particular Tenants yet that is no Argument that no other remedy was before And by Littleton If Tenant for life joyneth the Mise upon the meer right it is a Forfeiture And he held strongly That the Iudgment did not take away the Entry a cause of Forfeiture being given before the Iudgment 5 Ass 3. He in the Reversion after Iudgment and Execution may enter See also 22 Ass 31 to the same purpose For where Tenant for life is impleaded he ought to wait upon him in the Reversion and expect Instructions from him in
was That Francis Bunny was seized and 1 May 20 Eliz. by Deed indented enfeoffed N. H. to the use of the said Fr. Bunny for term of his life the Remainder to D. in tail the Remainder to E. in tail the Remainder over to F. in Fee In which Deed of Feoffment a Proviso was That if it should happen one P. P. to dye without Issue Male of his Body that then it should be lawful for the said Fr. Bunny at any time during his life by his Deed Indented to be Sealed and Delivered in the presence of three credible Witnesses to alter change diminish or amplifie any use or uses limited by the said Deed aliquem usum vel usus inde alicui personae c. Limitare post mortem ipsius Fr. to begin After which the said Fr. Bunny 1 Aprilis 23 Eliz by his Deed Indented did renounce relinquish and surrender to the said N. H. D. E. F. all such Liberty Power and Authority which he had after the death of the said P.P. without Issue ut supra And further remised released and quit-claimed to them the said Condition Promise Covenant and Agreement and all his said Power Liberty and Authority and further granted to them and their Heirs that at all times then after as well the said Condition Promise Covenant and Agreement as the said Power Liberty and Authority should cease and to all purposes should be void after which P. P. dyed without Issue 1 Maij 23 Eliz. after which 20 March 24 Eliz. the said Fr. Bunny by Indenture between him and the said D. Sealed and Delivered ut supra altered the former uses and covenanted and agreed with the said D. that from thenceforth the said N. H. and his Heirs should be seized to the use of the Plaintiff and his Heirs c. And note that in this Case Fr. Bunny being but Tenant for life enfeoffed one Tomson upon whom the said D. entred for a Forfeiture And it was argued by Altham That by the Feoffment by Fr. Bunny to Tomson the Liberty and Power aforesaid was not extinct or lost for this Liberty and Power was not then a thing in esse for then was P. P. alive and also the Liberty is meerly collateral to the Land whereof the Feoffment was made 39 E. 3. 43. Fitz The Son and Heir apparent disseised his Father and thereof made a Feoffment to a stranger the Father dyed now against his own Livery the Son shall not enter but if the Son dyeth then his Son shall enter which proves that the Livery is not so violent to determine a future right but that afterwards it may be revived à fortiori in our Case where the thing pretended to be extinct is meerly collateral 36 E. 3. Fitz. garr 69. In an Assise of Common the Release of the Father with Warranty is not a bar because it is of another thing 15 H. 7. 11. Cestuy que use wills by his Will that his Feoffees shall sell his Lands and dyes the Feoffees make a Feoffment to the same use yet they may well Sell so as against their Livery the authority to sell remains to them And he put Brents Case Dyer 340. A future use limited to a Wife which shall be shall not be prevented by a Fine or Feoffment and so by the Statute of fraudulent Conveyances 27 Eliz. cap. 4. where a Conveyance is made with clause of Revocation if afterwards the party who made such a Conveyance shall Bargain Sell or Grant the said Land to another for Money or other good Consideration paid or given the first Conveyance not being revoked that then such former Conveyance against the latter Purchasor shall be void c. The other matter was admitting that the said Power and Liberty be not extinct by the said Feoffment if by the Indenture of Renunciation Relinquishment Release c. it be destroyed and he said that a thing which is not in esse cannot be released Litt. 105. 4 H. 7. 10. A Lease for years to begin at a day to come cannot be released before it comes in esse 11 H. 6. 29. Br. Damages 138. In Detinue the Defendant would confess the Action if the Plaintiff would release the Damages and the Plaintiff would have so done but could not before Iudgment for before Iudgment the Plaintiff had not Interest in the Damages but he is intituled to them by the Iudgment So Lands in ancient Demesne are recovered at the Common Law and Execution had accordingly and afterwards the Tenant releases to him who recovers and afterwards the Lord reverseth the Iudgment the Tenant notwithstanding his release may enter for his Title which accrued to him by the reversal was not in esse at the time of the release Vide 98. contr And it was adjudged 23 Eliz. in the Case of one Falsor That where Lessee for years devised his term to his Wife if she should so long live and if she dyed within the term that then the residue of his term should go unto his Daughter which should be then unpreferred and dyed his Daughter unpreferred released to her mother all her right in the said Land the mother dyed within the said term the release shall not bind the daughter for that at the time of that release she had no title Cook to the contrary And he said That by the Feoffment the said Power and Liberty is extinct And he agreed the Case cited before 15 H. 7 for in such Case the Vendee of the Feoffees shall be in by the Devise and not by the Feoffees 9 H. 7. 1. The Husband makes Discontinuance of the Lands of his Wife and takes back an Estate to him and his Wife by which the Wife is remitted they have Issue the Wife dyeth the Husband shall not be Tenant by the Curtesie for he hath extinguished his future right by his Livery 12 Ass P. ultimo A Praecipe against A who loseth the Land by an erronious Iudgment and after Execution had enters upon the Demandant and makes a Feoffment his Writ of Error is gone 38 E. 3. 16. In a Scire Facias to execute a Fine the Plaintiff recovers and makes a Feoffment in Fee and afterwards the Tenant by Scire Facias by Writ of Disceit reverseth the Iudgment now the Plaintiff in the Scire Facias shall not have a new Scire Facias 34 H. 6. 44. A. recovers against B. by false Oath and after Execution had B. enters and makes a Feoffment to a stranger who Enfeoffs him who recovers it is a good Bar in an Attaint 27 H. 8. 29. The Feoffees to an use are disseised the Disseisor Enfeoffs Cestuy que use who Enfeoffs a stranger now by that Feoffment his right to the use is gone And as to the release the same is not properly a release but rather a defeasance to determine the Power and Authority aforesaid as if A enfeoffed B. with Warranty and afterwards B. covenants with A. that the said Warranty shall be void
the Covenant shall enure to defeat and determine the Warranty And afterward Iudgment was given against the Plaintiff CCLXXIII Sir Francis Englefields Case Vide this Case Reported by Cook in Rep. 7. and by Popham 18. THe Case to recite at large was this Sir Francis Englefield Kt. being seized in Fee of the Manor of Englefield in the County of Berks and of divers other Lands in the first year of Queen Eliz. departed out of the Realm by Licence of the Queen for a time and remained out of the Realm in the parts beyond the Seas above the time of his Licence whereby the Queen by her Warranty under her Privy Seal required him to return upon which he was warned but did not come whereupon the Queen seized his Lands for his contempt After which the Statute of Fugitives was made 13 Eliz. upon which by Commissions found upon this Statute all his Lands were newly seized and afterwards 17 Eliz. by Indenture made between him and his Nephew and Sealed by the said Sir Francis at Rome the said Sir Francis covenanted with his said Nephew upon consideration of Advancement of his Nephew and after consideration to raise an use that he and his Heirs and all others seized of the said Manor c. shall hereafter stand and be seized of them to the use of himself for the term of his life without impeachment of Waste and afterwards to the use of his Nephew and of the Heirs Males of his Body and for default of such Issue to the use of the right Heirs and Assigns of the Nephew for ever with a Proviso that if the said Sir Francis shall have any Issue Male of his Body that then all the said Vses and Limitations shall be void and that the said Manors c. shall be as before Afterwards the said Sir Francis was attainted of Treason supposed to be committed by him 18 Eliz. at L. in partibus transmarinis and the Attainder was first by Outlary and afterwards by Act of Parliament 28 Eliz. by which the Forfeiture of the said Condition was given to the Queen and at the same Parliament it was Enacted That all and every Person and Persons which had or claimed to have any Estate of Inheritance Lease or Rent they not entred of Record or certified into the Court of Exchequer of into or out of any Manors Lands c. by or under any Grant Assurance or Conveyance whatsoever had or made at any time after the beginning of her Majesty by any persons attainted of any Treasons mentioned in the said Act after the 8 day of Feb. 18 Eliz. or within two years next ensuing the last day of the Session of the said Parliament shall openly shew in the Court of the said Exchequer or cause to be openly shewn the same his or their Grant Conveyance or Assurance and there in the Term time in open Court the same shall offer and Exhibit upon his or their Oath affirming that they have not the same nor can come by it or that it was never put in writing then the Effect thereof to be entred and inrolled of Record or else every such Assurance should be void and of none Effect to all intents and purposes saving to every person and persons other than the parties and privies to such Conveyance and such as shall not Exhibit the said Conveyance according to the true meaning of this Act all such rights c. Whereupon the said Francis the Nephew the 20 day of November 30 Eliz. in his own person affirmed upon his Oath that he had not the said Conveyance nor knew not how to come by it but delivered the Effect of the Assurance omitting the time when it was made otherwise than that it was made after the beginning of the Queens Reign and before the Treason committed by Sir Francis and before the Statute of 13 Eliz. against Fugitives and omitting also the last clause of the tender of the King and this he offered openly in the Court of the Exchequer the same day After which the Queen being moved with the said Condition made a Warrant by Letters Patents under the Great Seal dated 17 Martii 13 Eliz. to Rich. Broughton and Henry Bourcher Esquires for her and in her place and stead to deliver or tender to the said Francis the Nephew a Ring of Gold to the intent to make void the uses and limitations limited by the said Indenture and to return their proceedings upon it into the Court of Exchequer whereupon they made a tender of a Ring of Gold to the said Francis the Nephew the 18 day of November 31 Eliz. which he refused to receive And the two years after the said Session of Parliament was the 13 day of March 31 Eliz. and the said Broughton and Bourcher returned all this that they had done as before with their Commission out of the Exchequer And this Case being a great case and consisting of many doubts and questions was often argued And this Term scil 33 Eliz. It was argued by Moor of Counsel on the part of Francis Englefield and he said when Sir Francis Englefield covenanted to stand seized to the use of himself for life c. this was not any new use but part of the ancient use which was in Sir Francis before for there was no Consideration to raise a new use to himself for a Consideration is a cause or an occasion meritorial requiring a mutual recompence in fait or in Law Dyer 16 Eliz 33. b. mutual 1. of each part and here this ancient use remaineth For Sir Francis cannot simul semel agree and suffer and here is a bare Covenant without any Consideration on the part of Sir Francis which see Dr. and Student 100. cited by Br. Feoffments to Uses 46. A man cannot limit an use to himself to be a new use upon an Estate executed as upon a Feoffment but it shall be the ancient use much less upon a Covenant And that was Milfords Case Pasch 31 Eliz. Rot. 154 in the Kings Bench where an use limited to the right Heirs of the Feoffor was holden the ancient use quod vide also in the case of the Earl of Bedford and there is no difference between our case and the said cases unless in the said cases the use is limited in the end and in our case in the beginning of the Conveyance But perhaps it will be Objected That the particular Estate shall be good for necessity for to support the Estate limited in the Remainder which is limited upon good consideration for otherwise the Remainder shall be distrained That is not any reason for that conceit in Bayntons case in Plow Com. 307. 8 Eliz. hath been over-voted to be no Law in the case of the Lord Paget in this Court very lately And he said That the condition conceived in the Proviso is not given to the King. By the Common Law in case of Escheat the party comes in the Post but a Condition runs in privity And although
for 21 years to begin at Michaelmas before and in pleading it was shewed That virtute cujus dimissionis posterioris the Plaintiff entred fuit possess crastino Michaelis which was before the making of the Lease and the Plaintiff in his Declaration declared That the Defendant in consideration that the Plaintiff had assigned to him the said Leases had promised to pay to him 630 l. It was found for the Plaintiff Cook For where the Plaintiff in an Action upon the Case declares upon two Considerations in such Case although the one be void yet if the other be good and sufficient the Action is maintainable but the Damages shall be given without respect had to the Consideration insufficient and the Plaintiff was to declare upon both Considerations for the Assumpsit upon which the Action is conceived was in consideration that both the Leases were assigned to the Defendant and our Declaration ought to be according to the Assumpsit and it was not material although that one of the Considerations was utterly void Another Exception was taken Because the Lease is set forth to be made 18 October and that by virtue thereof the Plaintiff entred Cro. Mich. Then the Plaintiff entring Cro. Mich. was a Disseisor and then being in by disseisin he could not assign his Interest to another and that appears clearly to the Court upon the whole matter But Cook said That shall not hurt us for it is but matter of surplusage to say Virtute cujus c. As 20 H. 6. 15. the Plaintiff in Trespass supposed by his Declaration that the Trespass for which the Action was brought commenced 10 H. 6. with a Continuando until the day of the Action brought viz. idem 14 Febr. 17 H. 6. where the Writ bore date 12 die Octobris Anno 17 H. 6. And Exception was taken to the Declaration because the continuance of the time was not put in certainty But the Exception was not allowed for it is certain enough before the viz. the day of Writ brought and so the viz is void and all that which follows upon it And so here this Clause Virtute cujus est totum sequitur est omnino void 7 H. 4.44 Br. Action upon the Case 37. The Writ was Quare Toloniam asportavit illud solvere recusavit Exception was taken to the repugnancy for it would not be carried away if it were not paid before yet the Writ was awarded good and the first word Toloniam asportavit holden void So here in the principal Case As to the other Exception it is clear That here is not any Disseisin upon this Entry of the Plaintiff before the making of the said Lease for there was a Communication betwixt the Parties of such a Lease to be made or of such an Assignment and peradventure the Entry was by assent of the other part and then no Disseisin And posito it should be a Disseisin yet the Plaintiff hath assigned all the Interest quod ipse tunc habuit according to the consideration and delivered to the Defendant both the Indentures of Demises and so he hath granted all that which he might grant And if it be a void Assignment or not is not material for quacunque via data the Consideration is good and then the Assumpsit good also Egerton Solicitor contrary In every Action upon the Case upon Assumpsit three things ought to concur Consideration Promise and breath of Promise and in this Case the Assignment of the Lease to begin after the death of the Lessor is void being but Tenant for life and no Consideration upon the confession of the Plaintiff himself And upon the second Consideration it appeareth the Lessor viz. the Wife who held for life had but a right to the Land demised for she was disseised for he to whom the Land was after let entred before the Lease was made for it doth not appear that he entred by force of any agreement made before the Lease therefore by his Entry he was a Disseisor It was also moved That here was not any sufficient consideration for by a bare or naked delivery Nihil operatur and here is not any word of Give or Grant. To which it was answered That the delivery of the Indenture was not a bare Bailment but a Delivery to the use in the Indenture and so it is pleaded and therefore thereby an Interest passed for such a delivery cannot be countermanded An Indenture with an Averment shall never make an Estoppel Clench Iustice If I deliver any thing to one for his proper use an Interest passeth but if it be to the use of another no Interest passeth The party may have usum but not proprietatem CCLVII Mich. 18 Eliz. In the Kings Bench. Contract IF a Contract be made betwixt two here in England scil that one of them shall carry certain Goods of the others to Burdeux in France and sell them there and with the mony thereof coming shall buy other Goods for the use of him who was the owner of the first Goods and safely them deliver to him in London If now the party sell them in Burdeux and buyeth others with the monies thereof and brings them into England and there converts them to his own use upon this matter an Action lyeth at the Common Law for the Contract and the Conversion being the cause of the Action was made in England But if the Contract only was in England and the Conversion beyond the Seas the Party at his Election may sue at the Common Law or in the Court of Admiralty And if a Merchant here write to his Factor in France to receive certain Merchandizes which he hath sent to him and to Merchandize with them for his use if the Factor receiveth them and converts them to his own use the Father shall be sued in the Admiralty 25 Eliz. CCLVIII. The Earl of Huntington and the Lord Mountjoyes Case IT was agreed by the two Lord Chief Iustices 1 And. 308. upon conference had with the other Iustices in the Case between the Earl of Huntington and the Lord Mountjoy That where the Lord Mountjoy by Deed indented and inrolled bargained and sold the Manor of Camford to Brown in Fee in which Indenture a Clause was Proviso semper and the said Brown covenants and grants cum and with them the Lord Mountjoy his Heirs and Assigns That the said Lord his Heirs and Assigns might dig for Ore in the Wasts of Camford And also to dig Turf there to make Allom and Copperice without any contradiction of Brown his Heirs and Assigns that now here is a new Grant of an Interest to dig to the said Lord and his Heirs in the Lands aforesaid and not a bare Covenant and it was holden also that the said Lord could not divide the Interest granted to him in form aforesaid viz. To grant to another to dig one part of the said Waste c. But they were of Opinion That Brown his Heirs and Assigns notwithstanding
rather a portion of the profits c. and therefore the Land shall be said the Chauntry and not the Sum and here the intent of the Statute extends to the intent of the Founder So that if the intent of the Founder was to give the Land to Superstitious Vses the same is within the Statute If Cestuy que use wills that his Feoffees have the profits of his Lands ut supra to the Sustentation of a Chauntry Priest and the Feoffees imploy but 20 l. per Annum whereas the Land is of the value of 100 l. per Annum by this Statute the King shall have all for the intent of the Founder was That all should be imployed And so here for upon the Matter the Dean and Chapter are but as Feoffees and see that this Statute of Chauntries makes a great difference between Obits and Lights and Chauntries for in the Case of Obits and Lights the King shall not have but that which was imployed Whetstones Case was That Whetstone seized of the Manor of Cocke made a Feoffment thereof to certain Feoffees to find two Obits in such a Chappel and with the residue of the profits to maintain the Chappel and Iudgment was given for the Queen Here the Condition knit to the Reversion upon a Lease made by the Dean and Chapter to Nicholas Wilford passeth to the King by the Act of Parliament for a Condition is an Hereditament and when the King grants over the reversion to Butcher the Condition also passeth by 32 H. 8. Bromley Solicitor The Statute extends to Chauntries in existence only and not to Chauntries in reputation Chauntry hath divers significations in Law 1. For the Service which the Chauntry Priest is to do as cessavit de Cantaria 2 Sometimes for the Advowson of the Chauntry scil Quod permittat praesentare ad Cantariam 3. Sometimes for the Body of the Chauntry scil the Land of which it is endowed and in that sense it is taken by the Statute I will agree if the same had been an ancient Chauntry time out of mind c. and the Incumbents thereof had taken the profits and made Leases of it that then it should be a Chauntâ—y within this Statute for it might be corporated by prescription But the Chauntry here in question is not a Chauntry by prescription for the beginning of it is known so it is a Chauntry in reputation only and not in facto And he said That in that case the rent limited to the sustentation of the Priest shall go to the King and not to the Land for the Land was not given for the sustentation of a Priest but the rent only so as the Land was not immediately imployed for the finding of the Priest And he resembled this case to the case lately in question upon the Statute of 31 H. 8. An Abbot was seized of a great Wood which was never imployed in kind to the use of the House being seven Miles distant from the House but was never in Lease but was yearly sold by parcels and the Woodward rendred an Account of the same to the Auditor And the Opinion was That a Lease for years made of it within a year before the Dissolution was not within the said Statute for it was not immediately imployed for Hospitality But see the same reported by the Lord Dyer to the contrary 3 4 Eliz. 207. that such a Demise was void although that the Wood was not immediately imployed c. And see also the words of the Statute scil That the Land shall be in the actual Possession of the King in as ample manner as the Priest had it and the Priest had nothing in the Land but only in the Rent It was adjorned to be further argued c. Temps Roign Eliz. CCLXVI. Harveys Case HArvey seized of a Manor made a Feoffment thereof to divers persons to the use of himself for life and after to the use of his Son and the Heirs Males of his Body and if the said Son or any of the Heirs males of his Body discontinue or alien otherwise than for 21 years or three lives that then his Feoffees should be seized to the use of Nic. Harvey his Brother in Fee the Feoffor dyed the Son made a Lease for 21 years and afterwards discontinued against the Proviso if that lease should bind Nic. Harvey who came in by the latter use c. Dyer It is hard to avoid the lease for at the time of the making of it the lessor had a good interest and authority to make the lease and the act which impeacheth the Estate of the lessor commenceth after the lease by the discontinuance and therefore shall not avoid the lease Manwood The second use doth determine the first use and all Estates derived out of it Mounson contr ' For here this word Otherwise than for 21 years c so as such a lease is excepted As if a man man makes a Feoffment in Fee to the use of J. S. and his Heirs until J. D. shall pay to him 20 l. and then to the use of J. D. and his Heirs here if J. S. makes a a lease for years and afterwards the Monies are paid to J. D. now J. D. shall hold the Land discharged of the lease for there is no word Otherwise c. for these words Otherwise qualifie the second use Dyer The word Otherwise amounts to an Exception Manwood doubted of it and moved and demanded if the wife of the Cestuy que use should have Dower or not Barham conceived that she should c. CCLXVII Mich. 31 Eliz. In the Common Pleas. TEnant in Socage made a lease for four years and dyed his Heir within age of 8 years the Mother being Guardian in Socage leased by Indenture to the same lessee for 14 years It was holden that in this Case the first lease is surrendred but otherwise it is of a lease made by Guardian in Nurture CCLXVIII Mich. 29 Eliz. In the Common Pleas. IN Debt it was found for the Plaintiff 20 Eliz. and 21 Eliz. the Plaintiff released to the Defendant and the continuance was made until this Term scil Mich 29 Eliz. per Curiam advisare vult And now the Plaintiff against his own Release prayed and had Iudgment A Release pleaded after Judgment and Verdict without any knowledge to the Defendant and Process of Execution issued and now Walter a Clerk of the Court on the behalf of the Defendant shewed the Release to the Court and also the whole special matter and prayed the Release of the Court against this practice Anderson presently granted a Supersedeas But afterwards before the Process issued forth he and the other Iustices were of Opinion That the Defendant could not plead the said Release nor any further matter after Verdict and demanded the question of Nelson chief Prothonatory who advertised the Court That he could shew a President where an Arbitrement had been pleaded after a Verdict and Issue joyned upon it and that
was 100 years since Quod mirum videbatur Curiae hic Audita Querela pleaded And afterwards the Court said to Walter Sue your Audita Querela and upon that you shall have a Supersedeas Mich. 29 Eliz. In the Common Pleas. CCLXIX Sir Richard Lewknors Case Post 225. SIr Richard Lewknor seized of Willingford Park leased the same for years and dyed the Lessee assigned over his term excepting the Woods and Vnderwoods standing growing and being in and upon the premises the Assignee committed Waste the term expired the daughters and heir of Sir Rich. and the husband of the third daughter Coparceners being dead as tenant by the Curtesie brought an Action of Waste against the Assignee and the opinion of the Court was that the husband ought not to joyn in that Action for he can recover nothing for damages he cannot have for the waste was not done to his disinheresin and the Land he cannot have because the term is expired Snag Serjeant I conceive that the exception in the Assignment is good for an Exception of Trees by the Lessor himself in his Lease is good and by reason thereof the Lessee shall not have Fire-bote Hey-bote c. which otherwise he should have and the property of the Trees is in the Lessor and also the Soil 14 H 8. 1 2. 28 H. 8. Dyer 19 vide 46 E. 3. 22 a Lease for years was made with such Exception and the Lessor brought an Action for the Trees cut Qâ—are clausum tregit and that proves that the Soil also is excepted and then the Action of Waste lyes against the Lessee who hath excepted to himself the Wood and the Soil and not against his Assignee Walmsley Serjeant to the contrary And he said where Land is demised the absolute property of the great Trees is in the Lessor and the Lessee hath in such case a qualified property And he cited 2 H. 7. 14. the Lessor commands the Lessee to dig gravel in the Land demised or licenseth him so to do such commandment or licence is not good for the lessor hath nothing to do with the Gravel nor hath any property in it but such licence to cut Trees had been good and Vide 10 H. 7.2 3. Waste is assigned in the breaking de uno muro lapideo the Defendant pleaded the licence of the Plaintiff to break it and upon that they were at Issue And he said If the lessor cutteth trees upon which the lessee brings an Action of Trespass he shall not recover damages according to the value of the trees cut down but for the Trespass to the Soil and for the loss of the Shadow and the Acorns c. and if the lessee cutteth down trees the lessor cannot take them because he hath other remedy Where a reversion is granted to A. and B. and to the Heirs of B. Waste is done A. and B bring an Action of Waste B. shall recover all the damages and A. nothing which proves that all the Interest in the Land demised is in B and not in A. therefore here in the principal Case the Exception is void for that which the Law allows to the former is only House-bote Hedge-bote Plough-bote Fire-bote And he said that the lessee fells the trees and the vendee cuts them down that waste lyeth against the lessee which proves that in that case the Soil doth not pass with the trees by the exception of the trees the Soil is also excepted as a servant to the trees viz. to nourish the trees and if he who excepts the trees cuts them down or roots them up the lessee shall have the Soil And he said that for the property that the lessor hath in the trees if he cuts them down the rent shall not be apportioned And if the lessor granteth the trees to one and his heirs there shall be no Attornment which had been requisite if the Soil had passed At another day it was argued by Shuttleworth Serjeant and exception taken because it is too general scil Quod fecit vastum in terris quas Sir R. Lewknor pater duarum querentium cujus Haeredes ipsae sunt praefato Ford dimisit c. And the Plaintiffs counted the Reversion was entailed by Act of Parliament to the said Sir R. Lewknor and so the Writ ought to be special scil Cujus Haeredes de corpore ipsae sunt for although there be not any such form in the Register yet that is to no purpose for in novo casu novum est remedium apponendum And he compared it to the Case in F. N. B. 57. where Land is given to husband and wife and the heirs of the body of the wife the wife dyeth the husband commits waste the Writ shall be Idem A. de domibus in B. quas tenet ad vitam suam ex dimissione quam inde fecit praefato A. M. quondam uxori ejus haeredibus de corpore ipsius M. matris dicti R. cujus haeres ipse est exeuntibus And Vide 26 H. 8. 6. Cestuy que use leaseth for years the lessee commits waste the Feoffees bring an Action of waste the Writ containeth the special matter although there was not any such Writ in the Register Fenner and Walmsley contrary for there is not any such form in the Register Cujus haeredes de corpore c. and we are not to devise a new form in this case but it is sufficient to shew the special matter in the Count also the words in the Writ are true for the Plaintiffs are Heirs to Sir R. Lewknor and the Count is well pursuant and agreeing to the Writ for they are Heirs although they are but Heirs special of his Body And the Court awarded the Writ good and said that the case is not like the case in Fitz. N. B. 57. nor to 26 H 8. before cited for in the first case the Plaintiffs cannot shew of whose Demise the Tenant holdeth unless that he also shew the special Conveyance scil That the Land was given to the Husband and Wife and to the Heirs of the Body of the Wife for always the Demise to the Tenant ought to be shewed certain which cannot be in both these cases if not by disclosing also the Title to the Inheritance and the Estate in it Another Exception was taken to the Count That where the two Defendants were Tenants in Common of the said Lands demised the Writ is tenuerunt which is intended a Ioynt-tenure But this Exception was not allowed And Vide 44 E. 3. in Waste the Plaintiff counted upon divers Leases and Fitz. N. B. 60. F. and the Writ shall suppose one Tenet and not divers Tenets Another Exception was taken to the Writ because the two Coparceners and the Heir of the third joyned in the Writ whereas the Husband of the third Sister being Tenant by the Curtesie was alive Vide 22 H. 6 21 22. But that Exception for the Tenant by the Curtesie joyns to no purpose for
he is not to have Damages because the Waste was not to his disinheresin and the Land he shall not recover against the Defendant for the Term is not determined and such was the Opinion of the Court. As to the matter in â—aw Shuttleworth said That the Action of Waste ought to be brought against the Lessee himself and not against the Assignee for when he grants over his Term excepting the Trees it is a good Exception for when the Land upon which the Trees grow is leased to another the Trees pass by the Lease as well as the Land and the property of them is in the Lessee during the Term by which when he grants his Land he may well except them as the first Lessor might have done and if the Lessee for years cutteth down the Trees the Lessor cannot take them for that he hath other sufficient remedy scil an Action of Waste Fenner and Walmsley contrary And they conceived that the Lessee had but a special Property in the Trees scil for Fire-bote Plough bote House-bote c. But if he demiseth the Land or granteth his Interest in it he cannot except the Trees nor his special Property in them no more than he who hath Common appendant may grant the Land excepting the Common And in such case the general Property in the Trees remains in the Lessor as parcel of his Inheritance And this appeareth by many cases 27 H. 8. 13. Lessee for life and he in the remainder joyn in a lease for life the Lessee commits Waste the Tenant for life and he in the remainder joyn in an Action of Waste the Tenant for life shall recover the place wasted and he in the reversion all the damages Vide 2 H. 7. 10 H. 7. cited before That the Lessor may licence the Lessee to cut the Trees which proves that the Property is in him And Vide 40 Ass 22. the Lessor shall have the Windfalls And as to that which hath been said That by the Exception of the Trees the Soil it self is also excepted that is true as to the Trees for nourishment and not otherwise for if the Lessor cutteth down the Trees or roots them up he shall not after meddle with the Land where c. but the Soil shall be entirely to the Lessee The Lessor during the Term may grant the Trees so cannot the Lessee therefore the greater and better Property in the Trees is in the Lessor and not in the Lessee and the Trees proprie loquendo are not parcel of the thing demised If this Exception of the Trees or Woods should hold place Inconvenience would follow for as it is holden in 15 H. 7. 11. If the Termor of Wood commits Waste in one corner of the Wood he should not lose all the Wood but that place only But if in the said Wood there are divers Plats of Land in divers places of the Wood if the Termor commits Waste in that Wood he shall lose all the said Plats although he hath not done waste in them for they are parcel of the Wood. Vide Temps E. 1. Fitz. Waste 127. and Vide ibidem Waste 112. 8 E. 2. Waste done in parcel of an House the whole House shall be recovered Vide also 30 E. 3. Fitz. Amendment 67. and 4 E. 3. Waste 10. Now if that be Law and the Exception be good how shall the place wasted be recovered here and against whom It seemed to the Lord Anderson That the Exception was void and that the Action was brought against the Assignee and he said it was a knavish and foolish Demise and if it should be effectual in Law some Mischiefs would follow which he would not remember Windham was of the same Opinion and that the Lessee could not assign his Estate with such Exception for he hath but a special Interest in the Trees scil for Fire-bote Plough-bote c. which should go with the Land. Periam conceived That as to such special Property that none could have it but he who hath the Land and therefore the Exception is void but as to the Fruit-trees such an Exception might be good and although that the Trees are not expresly demised yet quodam modo and after a sort they may be said demised as annexed to the Land and if waste be brought against him who made the Exception scil the Lessee he cannot say they were not let to him and therefore he doubted of the Exception And Rhodes doubted also of the Exception and Anderson said that he was clear of opinion that the Lessor should have the Windfalls and afterwards the Case was adjorned to be further argued c. Temps Roign Eliz. CCLXX. Audleys Case Uses THe Lord Audley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerset and afterwards by Indenture reciting the said Feoffment and the date of it and also that it was to the intent that his Feoffees should perform his Will as followeth in effect viz My Will is that my said Feoffees shall stand seized to the use that the said Hoddy shall receive of the said Lands â—00 l which he had lent to the said Lord Audley and also to stand seized to pay all his Debts upon Bills signed with his hand and after â—he Debts paid that the Feoffees shall make an Estate of the said Lands to him the said Lord Audley and Joan his wife and to the heirs of their Bodies c. with divers Remainders over The said Lord Audley had Issue by the said Joan and also having Issue by a former wife a daughter the Feoffees never made any Estate to the said Lord and his wife and by the opinion of divers Iustices and Sages of the Law upon this matter no use was changed for it is not a last Will but an Intent and although that the Feoffees shall be seized to the use of the Feoffor and his Heirs because no consideration was wherefore they should be seized to their own uses yet the same could not make a new use to the said Lord and his wife in tail without conveying an Estate c. for the wife is a stranger to the Land and the same cannot be a Will or Testament for the Estate mentioned in the said writing ought to be made to the said Lord and his wife who could not take by his own Will and this matter was depending in the Chancery And the advise of the Iustices being there required they delivered their Opinions That by that writing no use was changed nor any use vested in the said Lord and his wife and a Decree was made accordingly until proof was made that such an Estate was made c. Trin. 29 Eliz. In the Common Pleas. CCLXXI. Walgrave and Somersets Case IN Trespass by Walgrave against Somerset the Case was That tenant at will cut down Trees and the Lessor brought Trespass vi armis And the Court was clear of opinion that the Action was well maintainable modo forma and Iudgment
the Land be holden of the Queen and so Nature cannot be transferred therefore neither this Proviso And so is the Tenure of Frankalmoigne 35 H. 6. 58. and it should be a great rigour to take the bridle out of the hands of the Natural Vncle into the hands of Iustice which is Manus regia And he cited the Case of the Lord Norris where it was rul'd That where the Act of Attainder of Norris gave to the King all Rights Titles c. yet a Writ of Error was not given thereby Manwood Actions are not expresly given by the said Act of Attainder As to the second point I conceive that the Coveyance is become void when the terms within the two years are passed and shall not expect until the two years be expired for the Inrollment ought to be within the term so that if all the terms of the two years be past it is now impossible for to inroll the Deed within the time limited by the Statute and then by 29 H. 8 the Conveyance is void and then is the Queen seized in Fee at the time of the making of the Lease by the Attainder of Sir Francis As to the Certificate without Office it is not sufficient to entitle the Queen to the Land and I deny the difference put by Popham between a Condition to be performed on the part of the Patentee and on the part of the King I confess that a Certificate to inform the Queen or her Councel of the quantity quality value c. of the Land is good without Office but not to entitle the Queen de novo to the Inheritance of another I grant that the Commission is of Record but the tender of the King is matter in pais and not of Record Three things ought to be observed in every Certificate to make it a good and lawful Certificate according to the course of the common Law unless it be in cases of necessity as in case of Ouster le mere c. 1. It ought not to be in the absence of the party 2. It ought to be pendente placito convocatis in ea parte convocandis 3. It ought to be directed to a known Officer but a thing certified by a private person being no Officer cannot be good Also a Certificate according to the course of the common Law being good is not traversable At another day the Case was argued by Egerton Solicitor for the Queen The Condition is given to the Queen by 33 H. 8. and also by 29 Eliz. and this Condition in it self is a general and ordinary Condition and rests not in privity and such an Act as may be made by any stranger as well as by Sir Francis himself scil the tender of the King. The reasons which moved Sir Francis to knit this Condition to the Conveyance were natural but the Proviso and the performance of it not tryed to Nature and therefore all the cases of privity are here out of Seisin As to the Lord Brays Case the same was not any Wardship but only an Order for the government or his Son and Heir for the Wardship of the Father in the Son is not a Chattel in him As to the Case of the Lord Norris the Writ of Error could not accrue to the Queen for by the Act of Attainder no Actions were given to the King And here is not any such privity as hath been pretended for by the words of the Proviso the Ring might be tendred to his Executors or Administrators therefore the Condition might be tendred when he is dead therefore without privity Title for alienation in Mortmain of Lands purchased by a Villain of the King or for a Condition broken are not in the King before Office But here the Condition is to be performed on the part of the Queen which her Royal Majesty cannot perform and therefore Commissioners are appointed to do it which they have done and upon the Commission retorned have informed the Queen of all the performance of it and all is now upon Record And there is a great difference between Certificates as in our case and Certificates which have been cited on the other side which are used to make Tryals upon Issues joyned betwixt party and party and in such Certificates I confess the Law as Cook hath argued The Sheriff is not known to be such an Officer but by his Commission under the Great Seal he upon a Writ of the King to him directed Summons Disseisins Attaches c. these are matters in fait but when the Sheriff hath retorned his Service then it is become matter of Record So in our case the retorn of the tender c. where the Queen is to be informed of the Lands of the Subject which she is to have there ought to be an Office but here the Queen is to do an act and that she hath done under the Great Seal by Commission by the Retorn of which she is in the whole matter therefore there needs not an Office to inform her of that which she her self hath done by another Authorized by her to do it And he said that the Leases made by the Queen being Tenant pur auter vie were not void ab initio but from the time of the two years but now the Estate of the Queen for life is determined therefore also the Leases derived out of it Exception hath been taken to the Information scil Praedictus Franc ' per Indenturam suam factam inter c. without saying sigillo suo sigillat ' that is good enough for facta esse non potuit nisi etiam sit sigillat ' therefore facta includes sigillat ' And afterwards Trin. 33. Eliz. this Case was argued by the Barons Clark puisne Baron said That Iudgment ought to be given for the Queen And first he said I conceive that here upon this Indenture is no use created in Sir Francis for he shall pay for a Licence of Alienation if the Lands be holden in chief and they themselves in pleading the uses say Virtute cujus the said Sir Francis was seized in his Demesne as of Freehold for his life the remainder thereof c. Although this Condition be tyed to Nature and rests in privity as hath been objected and so inseparable yet by Act of Parliament it may be transferred Impropriations Frankalmoign Frankmarriage Guardianship in Socage cannot be given away regularly but by Act of Parliament they may which vide for Impropriations by the Statute of 31 H. 8. Impropriations of Abbies and Priories dissolved nam Parliamentum omnia potest It may alter the nature of Lands make Gavelkind discendable according to the course of the common Law and so of Borough-English Attaint Error Disceit c. are Actions which lye in privity yet by Act of Parliament they may be transferred And in the case of the Lord Norris If the Act of Attainder had given to the Queen all Actions she might have had a Writ of Error And we see by experience That the
King and his Assigns have advantage of conditions annexed by Abbots to their Leases and that by 31 H. 8. and our condition is not so proper or peculiar to Sir Francis for by the words of it any other person might have tendred the King for Sir Francis so as it is not tyed to his person If the Proviâ—o had been Because it may be my Son will marry without my consent Or it may be I shall have more Children Provided therefore that if I tender c. that pretence of Marriage without assent or plurality of children is not any parcel of the condition And he vouched the case between Clovell and Moulton A. sold Lands to B. and it was covenanted betwixt them That A. upon request made unto him or his Heirs should make further assurance to B. of the said Land A. is attainted now the covenant is suspended for A. hath not any Heir afterwards the Heir of A. is restored by Parliament with a saving to others of all their rights c. B is not aided by that saving so as he can make request to the Heir of A. c. And he said That the tender of the King is well enough for time for although all the Terms were past yet the two years were not expired A. covenants with B. That if A. doth not levy a Fine to B. of the Manor of C. within two years that then A. shall be seized of the Manor of D. to the use of the said B. Now although that all the Terms be past so that no Fine can be levied according to the Covenant yet no use shall rise out of the said Mannor of D. before that the two years are fully expired And here needs not any Office by which the tender ought to be found the Commission authorizing the tender and the retorn of the Certificate by the Commissioners is sufficient for the whole matter in fait is become matter of Record as the Execution of a Writ once by the Sheriff being retorned and the party grieved by the Certificate shall have a traverse to it but where a Certificate is in lieu of a Tryal as of Bastardy by the Bishop in Case of Seddition or Diminution certified in a Writ of Error there no traverse lyeth to it but upon Certificate of not payment of Tythes the party grieved may have a Traverse In our Case here If the Subject continues possession after such Certificate made he is an Intruder The Queen when she made the Lease was Tenant for the life of another and afterwards by the tender of the King according to the Provilo all the Conveyance and the Estates limited by it are dissolved and the Fee-simple vested in Sir Francis Quasi ab initio and immediately also in the Queen by the Attainder whose Estate is paramount the Conveyance made by Sir Francis which is now as if it had never been made and so are all the Estates created by it and then the Lease made ut supra is void As to the Exception which hath been taken to the Information Indentura sua without saying Sigillo suo sigillat it is well enough for so much is said in effect for Non est Indentura sua if it be not sealed and all necessary circumstances are not to be pleaded as the delivery of the Deed or livery upon a Feoffment for a Feoffment includes livery and a Deed delivery Gent Baron to the same intent Here the words of the Proviso are Tender to Sir Francis his Executors or Assigns no words of Heirs and on the part of Sir Francis If he or any for him But in Dacres case If the said John Dacres himself and yet the Queen took advantage of such a Tender Manwood chief Baron to the same intent As to the Exception to the Information scil Per Indenturam suam without saying Sigillo suo sigillat ' for if the Indenture was not Sealed then it was not any Deed and then no Covenant and then no Vse and then no Condition c. But I conceive That the Information is good enough for Covenants by Indenture include Sealing and Delivery and other things which are of the Essence of an Indenture which need not to be pleaded because in Law presumed But for a clear Answer to it Sealing and Delivery are matters in pais therefore confessed by the Demurrer And here the Defendants have pleaded Quod bene verum est That the said Sir Francis by the said Indenture c. covenanted c. and if any imperfection be in the pleading it is now saved by the Demurrer An Exception hath been taken to the bar because the Defendants have pleaded three several Leases of several parcels of the Lands in question and concluded Virtute quarum quidem concessionum they were possessed and entred c. which cannot be good because several Interests and Estates but ought to have pleaded severally scil One Lease of such Land in which the Intrusion is supposed and so concluded Virtute cujus they were possessed sic de caeteris and so to each Interest one several Conclusion A. hath an Annual Rent of 10 l. out of Bl. Acre and another Rent of 20 l. out of c. and another Rent of 30 l out of the same Acre and takes a Distress in Bl. Acre aforesaid and avows for all the Rents together the Avowry is not good for how can the Avowant have a Retorn when Non constat Curiae how many of the Cattel he took for one Rent and how many for another As to the matter in Law first If this Condition doth extend to the Estate of Sir Francis Nihil habet quaestionis for by the performance of the Condition Sir Francis is in statu quo prius and so all the Estates limited by the said Indenture quite plucked up by the root As to the Condition I conceive that it is not knit in privity to Sir Francis and doth not depend upon his liking or disliking The Act it self in which is the performance of the Condition doth consist in the tender of the Ring the words preceding purporting the doubt of the proof of his Son and the bridle c. are his Motives by which he was induced to make the Condition not to perform the Condition nor any part or parcel of the Condition or word of Condition The words of the Condition are If he himself or any other by his appointment shall tender c. What privity is here who knows who shall be his Deputy to make the tender It may be any person in the World therefore no privity in the person who is to tender and as to the person to whom the tender is to be made there is no privity there for it may be made to the Nephew his Executors or Administrators Also no precise place is set down in the Condition where the tender shall be it may be in Ireland Scotland or in any other Country therefore the Condition in all points general and so free as an
to it because it ought to be Liberam Elemosinam without puram perpetuam Also it ought to be with a double ee and not Elemosinam sed non allocaturâ— for as to the first Exception it is but Surplusage and as to the other it is the common course Another Exception was taken to the Writ because that the words are Quod clamat este jus haereditat ' sua without saying in jure Collegij Anâ—erâ—on The Writ is good enough If a Parson pleads that he is seized he shall say in jure Ecclesiae for he hath two Capacities and without those words he shall be intended to be seized in his own right But if an Abbot plead that he was seized he needs not such words for that he hath not any other capacity And so of Dean and Chapter Mayor and Commonalty and afterwards the Writ was awarded good and that the Tenant should answer over Vide Liber Entries 236 237. It was also moved If the Colledge should count of his Seisin within 30 years because that the Corporation never dyes and then if he count upon his own possession And it was holden That if the Warden of the Colledge that now is was ever Seised he ought to count upon a Seisin within 30 years But upon the Seisin of his Predecessor he ought to count of a Seisin within 60 years as another common person For the change of the Head if such Seisin is as the dying seized and descent of a common person Mich. 15 Eliz. In the Kings Bench. CCLXXVIII Wood and Chivers Case IN Ejectione firmae between Wood and Chivers the Case was That the Bishop of Salisbury let the same Chivers the Manor of Lanington for 80 years for 40 l. rent payable at four usual Feasts upon Condition that if the rent be behind by the space of three Months after any of the Feasts in which c then a re-entry The Bishop dyed after confirmation J. S. was created Bishop who granted to R. the Office of Receiver of all his Revenues c. exercend ' per se vel Deputat suum and afterwards the Bishop made a special Letter of Attorney to the said R. to demand the rent and if it were behind to re-enter R. at the last day of the three Months came to the Capital Messuage of the said Manor an hour before the setting of the Sun for to demand the rent due at Midsummer then last past but none was there on the part of Chivers the Lessee to pay the rent for which R. left his Servant in the Hall of the said Messuage commanding him to stay there and if any came to pay the said rent that he give to him Notice thereof and afterwards he went out of the same House and walked in a Lane which was within the Gate of the House and did not return into the House until the Sun was set and then he returned and because the rent had not been paid he digged a Clod of the Land in the Name of the Bishop and so re-entred And afterwards the Bishop let the said Manor to W. for three years by Deed signed and Sealed and because Câ—â—vers continued his possession notwithstanding the re-entry he made also a Letter of Attorney to M. to enter into the said Manor in the Name of the Bishop and to deliver the said Deed of the said Lease to the said W. upon the Land as his Deed and these two Deeds the Bishop in his Chamber delivered to the said W. but not as his Deed But he said unto him Here is the Lease and a Letter of Attorney to M. and he shall enter in my name and deliver to you the Deed of his upon the Land as my Deed upon the Land Whereupon he took the two Deeds and delivered them over to M. who by force thereof entred upon the Land c. An Exception was made because it doth not appear here that the Bishop delivered the Letter of Attorney to M. himself nor to the use of M. and then it may be taken that the Deed of Letter of Attorney was delivered to M. to keep only and not as his Deed. But that Exception was now allowed For it was holden that the Livery in the Manor was good enough and so the Letter of Attorney sufficient for in all Deeds of Feoffments in which Letters of Attorney are contained the Livery of the Deed is to the Feoffee only and no mention made of any delivery to the Attorney for by such Letter of Attorney no Interest is to pass but only an Authority And note It was resolved by all the Iustices That in the computation of these three Months there ought to be allowed to every Month 28 days And now we are to see if this Rent be well demanded because the demand was made an hour before Sun-setting and then the party went out and walked in the Lane till the setting of the Sun without any other demand And it was moved that this walking in the Lane which was not a common High-way but a private way and that the House of the said Farm was of the one side of the Lane and the Farm-land on the other and so the Land parcel of the Farm and then his walking there is a continuance of the demand quod Catlin concessir was the Lane a High-way or not for the Manor is on both side And it was agreed by all the Iustices That if the Lessor cometh to the Land before the last hour viz. in the Morning or in the Afternoon and demands the Rent and afterwards goes off the Land and is not there at the last instant of the day the same is not a sufficient demand although that return be presently after the Sun is set And by Gerrard Attorney General If the Lessor cometh upon the Land at the last day before the last instant as in the morning c. and demands the Rent and continues there upon the Land till the Sun be set without making any other demand yet the demand for the Manor is good enough for his presence there is the continuance of the demand Quod fuit concessum per totam Curiam And by Catlin If the Lessor after his demand in the Morning departeth off the Land and before the last instant returneth and stays upon the Land till Sun-setting there is the continuance of a demand without any further demand which Wray Chief Iustice concessit And it was holden in this case That where R. left his Servant in the House to stay there and to signifie to him that if any person came to pay the Rent that that was not any continuance of the demand for R. himself was but a Servant and he in that business could not make a Servant And Catline said That the Bishop himself might by word command his Servant to demand a Rent and to make a Re-entry Quod fuit concessum but in our Case R. had not commanded his Servant to make any demand And so here upon
of the Conusee it might now be Inrolled It was the Opinion of all the Iustices That upon the request aforesaid it might be Inrolled like as it was of a Conusance of a Fine taken before a Iudge which may be removed out of his hands by a Certiorari although it be not a Record before that it be certified in the speaking of that Case It was made a question whether the Court of Chancery might help a man who purchased Lands for valuable Consideration where there wanted the words Heirs in the Deed of Purchase or not but the point was not resolved But in that Case it was agreed by all the Iustices That after a Fine is levied of Land Chancery Attornment that the Chancery may compel the Tenant of the Land to Attorn And so where an Annuity or Rent is granted to one for life or in Fee and the Deed is Executed Sealed and Delivered but no Seisin is given to the party of the Rent or Annuity the Court of Chancery may decree a Seisin of the Rent to be given and the Rent to be paid to the Grantee and that was said to have been often times decreed in the said Court of Chancery CCLXXXIV Mich. 30 Eliz. In the Common Pleas. Intrusion Trespass NOte by Anderson Chief Iustice If one intrude upon the Possession of the King and another man entreth upon him that he shall not have an Action of Trespass for that Entry for that he who is to have and maintain Trespass ought to have a Possession But in such Case he hath not a Possession for every Intruder shall answer to the King for his whole time and every Intrusion supposeth the Possession to be in the King which all the other Iustices agreed except Periam who doubted of it And Rhodes Iustice said and vouched 19 E. 4. to be that he cannot in such Case say in an Action of Trespass Quare Clausum suum fregit CCLXXXV Mich. 29 Eliz. In the Common Pleas. NOte It was holden by Popham Chief Iustice Remainder and so said by him to have been resolved upon a Special Verdict in the County of Somerset 20 Eliz. That where a Lease was made unto Husband and Wife for their Lives the remainder to the Heirs of the Survivor of them that the same was a good remainder notwithstanding the incertainty and that in that case after the death of the Wife he should have Iudgment to recover the Land. But if a man be possessed of a term for 20 years in the right of his Wife and he maketh a Lease thereof for 10 rendring rent to him his Executors and Assigns and dyeth that in such case though the Wife surviveth yet he shall not have the rent because that she cometh in paramount the Lease But if a man be possessed of a term in the right of his Wife Mortgage and Mortgageth for payment of a certain Sum of Money at a day certain and before the day the Wife dyeth and the Husband payeth the Money at the day and then dyeth whether his Executors or the Administrators of the Wife should have the term was not then resolved Ideo Quaere that Case Trin. 32 Eliz. In the Exchequer CCLXXXVI Bartase and Hinds Case NOte Manwood Chief Baron gave it for a general Rule for all Counsellors at Law That they did not advise any Collectors of Subsidies or Fifteens to exhibit Bills in the Exchequer Chamber for the Non-payment of Subsidies c. for such Bills should not be allowed hereafter because they had remedy by Distress Also it was holden That if any be assessed for the Fifteen which he ought to pay or if two Towns are to pay together and the one Town be taxed more than it ought to be or had been accustomed those which are grieved by such Sesment may have a Commission out of the Exchequer which is called Ad aequaliter taxand ' and that was put in ure in a Case between Bartase and Hind where one of them was Lord of the Town of Little Marloe and the other of Hedford And it was also holden That Fifteens are to be levied of Goods and Chattels properly and one Township sometimes is richer than another and therefore it is not reason that they pay their Fifteen always according to the same proportion But by Clark Baron where the Custom hath been that the Fifteen should be taxed according to the quantity of Acres there the Rate and Purport shall be always one whosoever holds the Land and as to the Commission Ad aequaliter taxand ' Manwood and Fanshaw said That they could shew above twenty Presidents of it Mich. 17 18 Eliz. In the Kings Bench. CCLXXXVII Barnard and Tussers Case Debt BArnard recovered in a Scire Facias upon a Recognizance against Tusser and afterwards brought an Action of Debt upon the same Recovery and it was adjudged maintainable notwithstanding that it was Objected That the Iudgment in such Scire Facias is not to recover Debt but to have Execution of the Iudgment And by Wray Chief Iustice If in a Scire Facias to have Execution of an Annuity the Plaintiff hath Iudgment upon such Iudgment he shall have an Action of Debt Mich. 17 18 Eliz. In the Kings Bench. CCLXXXVIII The Earl of Arundel and Bradstocks Case THe Case was The Earl of Arundel let Lands to Bradstock for years upon condition that the Lessee should not do any Act by which his Goods and Chattels might be forfeited Bradstock committed Felony and before any Attainder he obtained his Charter of Pardon It was holden in this case That the Earl might lawfully enter but if the words of the Condition had been Whereby the Goods ought to be forfeited chen it had been otherwise for before Attainder they ought not to be forfeited Mich. 17 18 Eliz. In the Kings Bench. CCLXXXIX Taylors Case Outlawry How avoided by Plea in Person TAylor was Outlawed in Debt and a Supersedeas of Record was delivered to the Sheriff before the awarding of the Exigent It was holden that the party should avoid the same by Plea then it was moved if the Plea should be pleaded by Attorney or in Person To which it was said by Manwood That where matter in fait is pleaded in avoidance of an Outlawry it ought to be pleaded in Person but matter of Record by Attorney And Ford Prothonotary said It was so agreed in Sir Thomas Chamberlains Case in 7 Eliz. and so it was adjudged in this Case CCXC. Mich. 17 18 Eliz. In the Kings Bench. THe Case was The Prior of Norwich made a Lease for life by Indenture by which the Lessee covenanted to find Victuals to the Cellerer at all times when the Cellerer came thither to hold Court the Priory was dissolved and the Possessions given to the Dean and Chapter newly erected It was holden in this case That the Lessee should perform that covenant to him who supplyed the Office of Cellerer scil the Steward And
it was also holden That the Lessee should have an Action of Covenant against the Assignee of his Lessor or his Lessee at his Election CCXCI. Mich. 19 20 Eliz. In the Kings Bench. A. B. C. three Ioyntenants give their Lands to D. in tail Joyntenants the remainder to A. in tail It was the opinion of Mead That the remainder is void Manwood and Harper A. and B. Ioyntenants Grants A. makes a Lease for life of his Moiety to C. and grants the reversion to B. the same is good quod Curia concessit A. and B. Ioyntenants of a Term A. grants his Moiety to his Companion the same is good without question if it be by Deed but if it be by Word Quaere Hil. 20 Eliz. CCXCII Hills Case HIll 20 Eliz. Rot. 371. Giles Hill seized of a Close of Pasture called Pitmonde and of Broome Acre two other Closes in his Demesne as of Fee and so seized the said Giles and Agatha his Wife and Robert their Son and B. his Wife by Indenture leased the same Broome Acre and the said other two Closes to W. Hutchin and B. and his Wife for 90 years Si quis eorum tam diu vixerit reddendo inde annuatim praedicto Egidio Uxori ejus Haeredibus ipsius Egidij viz. pro Broome Acre 3 s. 4 d. pro una Clausura 10 s. pro altera 20 s. ad quatuor anni Terminos with Clause of Re-entry If any part or parcel of the said rent be behind c. Giles and Agatha dyed The Son sold the reversion of Broome Acre 12 Febr. 12 Eliz. by Deed Indented rendring rent to Smith and Heale the rent of Broome Acree is behind Smith and Heale enter and lease the same to Reynolds for three years who being Ejected brings Ejectione firmae and Iudgment was given for him for that they are several Reservations and several Conditions And a difference was taken between this and Winters Case for in Winters Case the rent reserved originally is entire but in this Case the rent is originally several and also in Winters Case the condition was That if any part of the rent be behind that the Lessor should re-enter into the whole Note that the rent reserved for Broome Acre was 3 s. 4 d. and the condition was si contingat praedict ' reddit ' ou ascun parcel de ceo to be behind in part or in all by one Month after any Feast c. in quo solvi debuit Quod tunc bene licebit praefat ' Egidio c. in omnia singula praemista superius specificat ' re-entrare Et nomine That pro 10 de nariis pro Broome Acre pro uno quarterio anni aretro existent the Vendees of the Reversion did enter CCXCIII Mich. 19 Eliz. In the Common Pleas. Leases NOte by Dyer and Manwood Iustices A. leaseth to B. for years the remainder to the right Heirs of the said B. and makes Livery accordingly that the said remainder is void because that there is not any person in esse who can take presently by the Livery and every Livery ought to have its operation presently But where a Lease is made to B. for life the remainder to his right Heirs that he hath a Fee executed and it shall not be in abeyance and Iudgment was given accordingly CCXCIV. Hil. 23 Eliz. In the Common Pleas. THe Case was a Man made a Lease of a Garden containing three Roods of Land the Lessee is ousted and he brought Ejectione firmae and declared That he was Ejected of three Roods of Land And by Rhodes Serjeant The Declaration shall not be intended that the Plaintiff was Ejected out of the Garden of which the Lease was made which Dyer granted for Gardinum is a thing which ought to be demanded by the same name in all Praecipe's And this Action of Ejectione firmae is higher than an Action of Trespass and the Plaintiff if he recover shall be put into possession by it Mead and Windham held the contrary and they agreed That in all real Actions a Garden shall be demanded by the name of Gardinum But this Action of Ejectione firmae is in the nature of Trespass and it is in the Election of the party to declare as he doth or for to declare of the Ejectment of a Garden For a Garden may at one time be used for a Garden and at another time for Plough-Land But they conceived the better course to be and the better order of pleading to have been if the Plaintiff had declared That he was Ejeected of a Garden containing three Roods of Land as in the Lease it is specified Vide 22 E. 4. 13. Assise of a Garden Vide Cook 11 Part Savells Case Ejectione firmae of a Close vocat ' Leedes containing three Roods a Rule that such Action lyeth not of a Close although it hath a certain name but it ought to be of so many Acres and of what nature every Acre is CCXCV. Mich. 19 Eliz. In the Common Pleas. AN Action of Debt was brought by an Administrator who declared That the Administration was committed unto him by the Archbishop of Canterbury It was holden That in such Case he needed not to declare Ratione Praerogativae suae or that the Intestate had bona notabilia in divers Dicocesses for if the Intestate had not Goods in divers Diocesses the same shall come and be shewed on the other side and then the Plaintiff shall shew the same in certain and to that purpose divers Presidents were shewed to the Court by Sandbege and Best principal Clerks of the Court and the same was also affirmed by the Prothonotaries of the Court of Common Pleas. CCXCVI. Mich. 19 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared upon Trover and Conversion to his use It was pleaded by Plowden That the Defendant before the Action brought had lawfully sold the Goods whereof c. and he demanded Iudgment of the Action As if one hath Goods by Trover and Bails them over before any Action brought against him Detinue doth not lye against him which Wray Chief Iustice concessit as to the Detinue But where such a person who hath Goods by Trover Bails them quibusdam ignotis such an Action will lye against him CCXCVII. Mich. 19 Eliz. In the Common Pleas. IN a Writ of Dower the Demandant recovered by default Retorn of the Sheriff and the Sheriff took an Enquest de Officio by which it was found that the Husband did not dye seized prout eis constare poterit and that Inquisition is retorned by the Sheriff and filed It was moved by Mead That the Office and Inquisition was not good for the Office ought to have expresly found That the Husband dyed seized or not and not ambiguously as it doth here prout eis constare poterit and therefore by the Award of the Court the Retorn was taken off the File because it was insufficient
Dyer that these Remainders were void for the term is determinable upon the death of William Cecill the Father and the residue of the said term cannot remain And by the Lord Anderson the Remainders of the term limited ut supra are utterly void for every Remainder ought to be certain but here is no certainty for it may be that the first possessioner of the term may live longer so as he in the Remainder cannot know what he shall have And such was also the Opinion of Rhodes And he put the Case between Gravenor and Parker 3 4 Phil. Ma. Dyer 150. A Lease was made to A. for life by Indenture Et provisum fuit by the same Indenture That if the Lessee dyed within the term of sixty years then next ensuing that then his Executors should have in right of the Lessee so many of the years as should amount to the number of sixty years to be accounted from the date of the Indenture and it was holden That that secondary Interest to the Executors was void and that the words concerning the same did sound in Covenant CCCIV. Trin. 31 Eliz. In the Common Pleas. THe Case was A made B. and C. his Executors Executors Action they took upon them the charge of the Administration and afterwards B. dyed and now an Action of Debt was brought against the surviving Executor and the Executor of the other Executor and the Writ was abated because against the surviving Executor it ought only to be brought Pasc 30 Eliz. In the Common Pleas. CCCV Smith and Babbs Case SMith brough an Action upon the Case against Babb for stopping of Water incessanter decurrent by his Land Action upon the Case Stopping of Water by which his Land was drowned and his Grass rotted Exception was taken to it because it is not alledged That the Water had so run time out of mind Gawdy Iustice If the Water hath run there but for one year if the Defendant hath diverted it so as he hath drowned the Plaintiffs Land the Action will lye well enough Trin. 26 Eliz. In the Common Pleas. CCCVI Basil Johnsons Case BAsil Johnson one of the Clerks of the Chancery Priviledge of a Clerk in Court. was impleaded in the Common Pleas by Bill of Priviledge by an Attorney of the said Court and now Basil came into Court and shewed that he is one of the Clerks ut supra and prayed his Priviledge but the whole Court was against it because the Plaintiff is as well priviledged in this Court as the Defendant is in the Chancery and was first interessed in his Priviledge by the bringing of his Writ but the Defendant was not entituled to his Priviledge before the Arrest and afterwards by the award of the Court the said Basil was ousted of his Priviledge 32 Eliz. In the Common Pleas. CCCVII Collier and Colliers Case Prohibition BEtween Collier and Collier the Case was That the Plaintiff was Sued for Incontinence in the Spiritual Court and there they would have him Answer upon his Oath if he ever had Carnall Knowledge of such a Woman upon which he prayed a Prohibition Vide inde F. N. B. 41. a. Register 36. Et nemo tenetur seipsum prodere But the Court would advise of it 32 Eliz. In the Common Pleas. CCCVIII Mountney and Andrews Case Execution IN a Scire Facias by Mountney against Andrews of Grays-Inn upon a Iudgment in Debt the Defendant pleaded That heretofore a Fieri Facias at the Suit of the now Plaintiff issued to the Sheriff of Leicester by force of which the said Sheriff took divers Sheep of the Defendants and that as yet he doth detain and keep them It was holden by the whole Court to be a good Plea although he did not say That the Writ was retorned for the Execution is lawful notwithstanding that and the Plaintiff hath his remedy against the Sheriff Hil. 29 Eliz. In the Common Pleas. CCCIX Dawbney and Gores Case BEtween Dawbney Plaintiff and Gore and Gon Defendants in a Writ of Disceit In Arrest of Iudgment it was moved That two are accountable to one and the one of them accounts without the other that that is not any account and then no account can be assigned in that As to that it was said by Popham Attorney-General That notwithstanding that one be not compellable to account without his Companion and by way of Action of Account the one shall not account without the other unless the Process be determined against him and then he who appeareth hath accounted and the other against whom the Process is determined hath purchased his Charter of Pardon the account made by his Companion shall bind him Vide inde 41 E. 3. 13. Yet if one of the Accomptants will account willingly the same is a good account And in account if one confesseth and the other pleadeth in bar the confession of the one shall bind the other and such was the Opinion of the Court. Another matter was moved in this case because that one Tedcastell and Swinnerton being accountable to the said Gores and Dawbney they have accounted to Dawbney only and he alone hath accepted of the account and that is not any account therefore no desceit but the Action of Account doth remain To which it was answered by Popham That the same was a good account being accepted by Dawbney and should bind the Gores for an Account is a personal thing as an Obligation which may be released by one of the Obligees Vide 14 E. 4. 2. Where one was accountable to two and the one of them did assign Auditors before whom the Accountant is found in Arrearages and thereupon both of them brought Debt upon Account and well And so none of the Exceptions were allowed by the Court. Mich. 33 Eliz. In the Common Pleas. CCCX Trivilians Case THo Trivilian Tenant in tail of White Acre Black Acre and Green Acre leased White Acre for years to B. and Black Acre to C. and afterwards made a Feoffment of all three Acres to F. and others by Deed in which Deed was comprised a Letter of Attorney in which he ordained Harris and three others his Attorneys joyntly and severally to enter in the Premises and every part thereof in the name of the whole and possession in his name to receive and afterwards to make Livery c with other ordinary and usual words and it was expressed in the said Deed of Feoffment that the Feoffment should be to the intent to perform his last Will and afterwards one of the said Attorneys entred into the Land demised for life and expelled the Tenant for life and made Livery and Seisin to the Feoffees accordingly and afterwards the said Harris another of the Attorneys scil one of the Ioynt Lessees being one of the three Attorneys made Livery of the Land demised for years and after the Feoffor in the time of Queen Eliz. by his last Will devised That the Feoffees should be seized of the
infra Messuagium praedict ' modo forma and thereupon it was demurred in Law for it was said That the Defendant ought to have said Non usurpavit Libertates praedictas nec eorum aliquam for he ought to answer singulum and also he ought to have pleaded as well to the Manor as to the Messuage for if the Defendant hath holden Court within any place of the Manor it is sufficient And the Case 33 H. 8. Br. Travers sans ceo 367. was cited and Information was in the Exchequer That the Defendant had bought Wools of A.B. contrary to the Statute the Defendant pleaded That he had not bought of A. B. and the Plea was not allowed for he ought to have said That he had not bought modo forma for if he had bought of A. B. or J. S. the same is not any matter nor traversable which Cook denied to be Law And he conceived also that the Information upon the Quo Warranto is not sufficient for by the same the Defendant is charged to hold a Court and it is not shewed what Court and it may be it was a Court of Pypowders Turn c. And Vide 10 E. 4. 15 16. a Quo Warranto contains two things 1 Claim 2. Vsurpation And here the Defendant hath answered but to the Vsurpation and it hath said nothing as to the Claim And it hath been holden here heretofore that he ought to make answer to both And it hath been holden in a Reading upon the Statute de Quo Warranto which is supposed to be Frowicks Reading That a Quo Warranto doth not lye of such Liberties which do not lye in Claim as Goods of Felons c. which lyeth only in point of Charter CCCXIX. Temps Roign Eliz. THe Prior of Bath leased his Manor of A. to C. for life rendring rent and afterwards the Priory was dissolved the King leased the whole Manor cum pertinenciis to Sir Walter D. Kt. Dyer The matter depends upon this point If the Demesne be severed from the Services during the life of the Lessee And he conceived That the Lord cannot hold a Court if such a power be not reserved to him upon the Lease Weston The Manor nor is in suspence during the Lease for a Reversion upon an Estate for life and Services in possession cannot be united to make a Manor but contrary if but parcel had been leased Quod Curia concessit Welch The Demesnes are severed from the Services for ever as if they had been granted in Fee but here having regard to the Lessor the Demesnes and Services are united and made one Manor but as to the Lessee and all others the Services are in gross and of that Opinion was also Dyer And he said If a Bishop leaseth his Demesnes of his Manor for life and dyeth the Reversion shall be in his Successor and was in himself for his life in the right of his Church And if Husband and Wife seized of a Manor in the right of his Wife lease the Demesnes of the said Manor for life yet he hath the Reversion in the right of his Wife and in such Case it doth remain a Manor but if the Husband sole had made the Lease he had gained the Reversion to him and so severed it from the Manor CCCXX Temps Roign Eliz. Devises A. Devised that his Wife should take the Profits of his Lands until his daughter should come to the full age of 25 years and if the daughter dyed within the age of 18 years then his wife should have the Land for her life the remainder over to J. S. The daughter became of the age of 18 years and dyed before she came of the age of 20 years and Dyer held clearly That the Remainder was gone for the daughter accomplished and survived the age of 18 years And he said that the case late depending in the Kings Bench was this The Husband devised the Profits of his Lands to his Wife for 25 years and that then his Son should have it in Tail to him and to the Heirs of his Body c. now before the 25 years expired he hath Fee and if he hath Issue then his Estate is changed into Tail But by Carus he hath both Estates scil Fee-tail and Fee-expectant CCCXXI. Temps Roign Eliz. Surrenders A Woman Tenant in Tail made a Lease not warranted by the Statute took a Husband had Issue and dyed the Husband being Tenant by the Courtesie surrendred to the Issue It was holden that he should not avoid the Lease during the life of the Tenant by the Courtesie But yet some held That the Surrender ought to be by Deed as a Lease to A. for life the Remainder to B. for life the Remainder to C. in Fee if B. surrenders to C. it must be by Deed. CCCXXII Temps Roign Eliz. THe Case was this A. leaseth Lands to B. for years Extent rendring Rent with Clause of re-entry and afterwards Debt is recovered against him It was holden That now the Moiety of the Rent and the Reversion was extendable by Elegit and upon such Extent Condition suspended the Condition is suspended during the Extent as well in the Lessor as in the Party who hath the Extent Temps Roign Eliz. CCCXXIII Mitchell and Nordens Case Procedendo upon Aid-Prayer in Dower ELizabeth ' c. Dilectis Jacobo Dyer c. Monstravit nobis Elizabeth ' Mitchell quae fuit uxor c. Quod cum ipsa prosecuta fuit coram vobis sociis vestris c. Breve nostrum de Dote unde nihil habet versus Thomam Norden c. Et praedictus Thomas venit dixit Quod vir praedictae Elizabethae was seized and leased to him for life with warranty and for that cause he vouched to warranty Tristriam ' Mitchell Filium Haeredem dict' Richardi infra aetatem existen ' in Custodia eo quod dictus Richardus die quo obiit c. Et hoc paratus est verificare Unde non intendit quod vos praefati Justiciarii nostri nobis inde inconsultis ulterius procedere velletis Et petiit auxilium de nobis habuit Et super hoc dies datus est tam praefatae Eliz. quam dict Tho. Norden à die Pasc c. Et dictum fuit praefatae Eliz. Quod sequatur penes vos quarum quidem allegatione praetextu vos in placito praedict ulterius procedere distulistis adhuc differtis in ipsius Eliz. dispendium gravamen Et super hoc eadem Eliz. venit hic coram nobis in Cancellaria nostra Et petit Breve nostrum de Procedendo inde in hac parte vobis dirigend ' Super quo quaesita fuit in eadem Curia Cancellariae nostrae à Gilberto Gerrard Attornato nostro generali qui pro nobis in hac parte sequitur si quid dicere scivit aut potuit per quod dict' Tristriamus infra aetatem in custodia nostra
Bayliff of his Lord could not do better than admonish the said Bayliff of his duty for it concerned the Honour of his Master and also his Inheritance in the said Liberty But if the said Townsend had been a meer stranger to the said Earl so as no such privity had been betwixt them the same had been clearly Maintenance in Townsend as it was lately adjudged in that Court in the case of one Gifford where the parties being at Issue and a Venire Facias to the Sheriff to retorn a Iury a stranger wrote to one of the Iurors who was retorned in the Pannel praying him to appear at the day and to do in that cause according to his Conscience and the same was adjudged Maintenance And afterwards upon full hearing of the cause the said Townsend by the Sentence of the Court was acquitted of any Maintenance with great allowance and approbation of many Lords of the Counsel there present Bromley Cancellario tantum exclamante CCCXXVII Mich. 15 16 Eliz. In the Common Pleas. IN a Writ of Partition the Defendant prayed in Aid the Plaintiff counterpleaded the Aid upon which Issue was joyned and found for the Plaintiff It was the Opinion of the Court That it was peremptory for the Defendant And the Plaintiff shall have the Partition scil Quod fiat Partitio and the reason thereof is for the delay of the Plaintiff and for the vexation of the Country who are to try it otherwise it had been if it had been adjudged against the Defendant upon a Demurrer CCCXXVIII Mich. 21 Eliz. In the Kings Bench. IN a Formedon of a Manor the Tenant pleaded Ioynt-tenancy by Fine with J. S. The Demandant averred the Tenant sole Tenant as the Writ supposed and upon that Issue was joyned and found for the demandant Vpon which a Writ of Error was brought and Error assigned in this That whereas upon Ioyntenancy pleaded by Fine the Writ ought to abate without any Averment by the Demandant against it the Averment hath been received against the Law And by Southcote at the common Law If the Tenant plead Ioyntenancy by Deed the Writ should abate without any Averment but that was remedied by the Statute of 34 E. 1. but Ioyntenancy by Fine doth remain as it was by the common Law for he hath punishment enough in that because by that Plea if it be false he hath by way of conclusion given away the Moiety of the Land in demand to him with whom he hath pleaded Ioyntenancy and the Law doth not intend that he will so slightly depart with his Land for the abatement of a Writ Else in a Praecipe quod reddat the Tenant confesseth himself to be Villain to a Stranger the Writ shall abate without any Averment of Frank-estate for the Law intends that the Tenant will not enthrawl himself without cause Wray to the same intent But the Demandant may confess and avoid the Fine as to say That he who levied the Fine was his Disseisor upon whom he hath before entred c. And if Tenant in Fee-simple be impleaded and he saith he is Tenant for life the Remainder over to A. in Fee and prayeth in Aid of A. the Demandant shall not take Averment That the Tenant the day of the Writ brought was seized in Fee. Note That in this Fine Ioyntenancy was pleaded but for parcel and it was holden by â—ray and Southcote That the whole Writ should abate as in a Writ against many the misnosmer of the one shall abate the whole Writ against all the Defendants and so where the Demandant enters into parcel of the Land in demand if the Land in demand be one entire thing it shall abate the Writ in all In this Case the Demandant ought to have in his Writ a Foreprise of the Land parcel of the Land in demand whereof the Ioynt-tenancy by Fine is pleaded for this dismembring of the Manor and destruction of the Land whereof the Ioyntenancy is pleaded is peravail and beneath the Gift whereof the Formedon is conceived and therefore in respect of the title of the Demandant it remains in right parcel of the Manor and therefore it ought to be demanded accordingly with a Foreprise But if A. gives to B a Manor except 13 Acres in Tail there if after upon any Discontinuance the Issue in Tail is to have a Formedon in such Case there needs not any Foreprise for the said 10 Acres were never severed from the Manor upon the Gift But if Land in demand be several as 20 Acres but two this Foreprise is not good Vide Temps E. 1. Fitz. Br. 866. Praecipe unam bovat ' terrae except a Selion and the Writ was abated for every demand ought to be certain but a Selion is a parcel of Land uncertain as to the quantity in some places it is an Acre in some more and in some less Another point was That because that the Tenant hath admitted and accepted this Averment scil Sole Tenant as the Writ supposeth if the Court notwithstanding the admittance of the Tenant ought without exception of the party ex Officio abate the Writ And Wray conceived that it might for it is a possitive Law As if a Woman bring an Appeal of Murder upon the death of her Brother and the Defendant doth admit it without Challenge or Exception yet the Court shall abate the Appeal 10 E. 4. 7. And Vide the principal Case there Non ideo puniatur Dominus And if an Action be brought against an Hostler upon the common Custom of the Realm and in the Writ he is not named Common Hostler and the Defendant doth accept of such a Writ without any Exception unto it yet the Court shall abate the Writ ex Officio Vide 38 H. 6. 30. CCCXXIX Mich. 21 Eliz. In the Kings Bench. NOte this Case A. makes a Feoffment in Fee to B. and binds himself only to warranty without more B. is impleaded and voucheth A. who enters into the Warranty and loseth so as Iudgment is given against B. and also to recover in value against A. who before Execution dyeth It was the opinion of the Court that B. should have Execution in value against the Heir of A. CCCXXX Mich. 21 Eliz. In the Common Pleas. A. Seized of Lands in the right of his Wife for the term of the life of the Wife made a Feoffment in Fee to the use of his said Wife for her life In that case the wife is remitted and it is not like Townsends Case Plowd Com. 111. for in that case the Entry of the Wife was not congeable for she was Tenant in tail which Estate was discontinued by the Feoffment of her Husband Periam Iustice cited Siâ—enhams case Baron seized in the right of his Wife for the term of the life of the Wife They both surrendred and took back the Land to them and a third person And it was holden that the Wife was not presently remitted but after the death of her Husband
of the first disturbance for that presentment did not pass to him being a thing in Action without mention thereof in his Grant. And if the Patentee brings a Quare Impedit of a second avoidance he shall make his presentment by the presentment of the King not making mention of the Vsurpation Yet if a Bishop present for Lops in the case of a common person he ought to make mention of it for that is a title to the Patron CCCXL Trin. 28 Eliz. In the Kings Bench adjudged NOte In the Case of one Manning it was adjudged That where an Infant Executor sold the Goods of his Testator for a lesser price than they were worth and afterwards brought an Action of Detinue against the Vendee upon that Detinue in retardatione executionis Testamenti that the said Sale was good and should bind the Executor notwithstanding his Nonage 28 Eliz. In the Chancery CCCXLI The Lord Awdleys Case THe Lord Awdley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerset and afterwards by Indenture reciting the said Feoffment and the date of it and also that it was to the intent that his Feoffees should perform his Will as followeth in effect viz. My Will is That my said Feoffees shall stand seized to the use that the said Hoddy shall receive of the profits of the Lands 100 l. which he had sent to the said Lord Awdley and also stand seized to pay all his debts upon Bills signed with his hand and after the debts paid that the said Feoffees shall make Estate of the said Lands unto him the said Lord Awdley and Jone his Wife and to the Heirs of their two Bodies with divers Remainders over The said Lord had Issue by the said Jone and also had Issue by a former Wife a daughter the Feoffees never made any Estate to the said Lord and his Wife And by the Opinion of divers Iustices and Sages of the Laws that upon that matter no use was changed for it is not any last Will but an Intent And although that the Feoffees shall be seized to the use of the Feoffor and his Heirs because that no consideration was by which they should be seized to their own uses yet the same cannot make any Vse unto the said Lord and his Wife in tail without containing an Estate for the Wife is a Stranger to the Land And also it cannot be a Will for the Estate mentioned in the said writing ought to have been made to the said Lord and his Wife who cannot take the same by his Will. This matter depended in the Chancery And the advice of the Iustices being there required they delivered their Opinions That by the said Writing no Vse was changed nor any Estate vested in the said Lord and his Wife And a Decree was there made accordingly until proof be made that such an Estate was made CCCXLII Mich. 26 Eliz. In the Kings Bench. THe Case was in the Kings Bench in Debt It was found by Special Verdict That the Testator being possessed of divers Goods in London where he dyed and also at the time of his death the Queen being indebted unto him in the Sum of 4 l. 10 s. she then residing at Whitehall the Archbishop as Metropolitan granted licence of Administration to the Queen and the Bishop of London afterwards granted licence of Administration to J.S. The Court sent to the Civilians to appear in Court and to deliver their Opinions in this case And thereupon Lloyd Doctor of Law appeared and argued to this effect viz. That in ancient times in such cases the several Ordinaries committed several Administrations for the Goods in their Diocess respecive In which case the mischief was very great for the Creditor was driven to bring several Actions of the Administrators of the several Ordinaries Vide H. 7. 13 R. 2. Administrators 21. But afterwards upon a Decree upon a Composition in such cases the Metropolitan committed the Administration He further argued That debts cannot be said Bona Notabilia for they cannot be said within or without any County or Diocess and are things transitory and therefore called aes alienum And he said That the Administration granted by the Archbishop was void for as Archbishop he had not to intermeddle within the Diocess of another but as Legatus Papae And in the time of Hen. 2. Becket Archbishop of Canterbury was stiled Legatus Natus but now that power Legantine is determined and therefore the authority to commit Licences of Administration in another Diocess but in case of Bona Notabilia is determined And he said That by the Civil Law Jones Rep. 225. if a man deviseth all his Goods in such a County by that debts do not pass and yet by especial words a man may devise his debts Awbrey Doctor argued to the contrary and he confessed that in ancient times every Ordinary in such cases committed licences of Administration But he denied that the Prerogative which is now practised in such cases by the Metropolitan was given upon any Composition but that it began by Prescription If a man in his Iourney dyed in another Diocess notwithstanding that he had out with him but his necessary and ordinary Apparel in such case the Metropolitan committed the Administration and he said That as he conceived debts are Bona Notabilia secundum fictionem Legis they are local and he said to make Bona Notabilia it is sufficient if the Intestate have 3 l. in one Diocess and 2 l. in another Diocess But he said That posito that Bona Notabilia are not in the case yet the Administration granted by the Metropolitan is not void until it be revoked For although that the Metropolitan on the right of his Bishoprick hath not to intermeddle in another Diocess yet in this case because the Archbishop of Canterbury is a Patriarch For in Christendom there are four great Patriarchs and eight lesser Patriarchs whereof the Archbishop of Canterbury is one and by reason thereof he hath general Iurisdiction through all England Ireland c. But now by the Statute his Authority is restrained For he cannot cite any other out of other Diocess by any Process But notwithstanding he may do many great Acts by himself or his Chancellor in every Diocess and he argued very much upon the Prerogative of the Archbishop of Canterbury The Iustices did not then deliver any Opinion in this case Quaere If Letters of Administration of the Goods of a common person be committed to the Queen if good The case was adjourned Vide Cook 5 part Ucre and Jeffreys Case and Cook 8 part in Sir John Needhams Case for the Resolution of this Case CCCXLIII Pasc 17 Eliz. In the Common Pleas. A Man made a Lease for life and afterwards made a Lease to another for years The Ordinary committed Licences of Administration to A. the Tenant for life and A. joyned in the purchase of the Fee-simple of the Land demised It was
another thing 15 H. 7. 11. Cestuy que Use declares by his Will That his Feoffees shall sell his Lands and dyeth the Feoffees make a Feoffment to the same use yet they may sell so as against their Livery the Authority to sell remains to them And he cited Brents case Dyer 340. where a future Vse is limited to his Wife that shall be shall not be prevented by a Fine or Feoffment And vide the Statute of Fraudulent Conveyances 27 Eliz. where a Conveyance is made with Clause of Revocation if afterwards the party makes such a Conveyance bargain sell or grant the said Lands for money or other good consideration paid or given the first Conveyance not being revoked that then such former Conveyance against the last Purchasors shall be void Another matter was admitting that the said Power and Liberty be not extinct by the said Feoffment If by the said Indenture or Renunciation Relinquishment Release c. it be destroyed And he said that a thing in esse could not be released Litt. 105. 4 H. 7. 10. A Lease for years to begin at a day to come cannot be released before that it come in esse 11 H. 6. 29. Br. Damages 138. In Detinue The Defendant would have confessed the Action if the Plaintiff would have released the Damages and the Plaintiff would have so done but could not before Iudgment for before Iudgment the Plaintiff had not interest in the damages but he was intituled to them by the Iudgment so Lands in ancient Demesne are recovered at the Common Law and Execution had accordingly and afterwards the Lord reverseth the Iudgment the Tenant notwithstanding that Release may enter for his title which accrued to him by the reversal was not in esse at the time of the Release And it was adjudged 23 Eliz. that where Lessee for years devised his term to his Wife if she should so long live and if she dyed within the said term that then the residue of his term should go unto his daughter who then should be unpreferred and dyed the daughter released to her mother all her right in the said Land the mother dyed within the term That that Release did not bind the daughter for that at the time of the Release she had not any title Cook contrary And he said That by the Feoffment the said power and title was extinct and he well agreed the case cited before of 15 H. 7. for in such case the Vendee of the Feoffees shall be in by the Devise and not by the Feoffees 9 H. 7.1 The husband makes a discontinuance of the Land of his wife and takes back an Estate to him and his wife by which his wife is remitted they have Issue the wife dyeth the husband shall not be Tenant by the Courtesie for he hath extinguished his future right by the Livery 12 Ass ultimo A Praecipe brought against A. who loseth the Land by erronious Iudgment and after Execution had enters upon the demandant and makes a Feoffment his Writ of Error is gone 38 E. 3.16 In a Scire Facias to execute a Fine the Plaintiff recovers and makes a Feoffment in Fee and afterwards the Tenant in the Scire Facias by Writ of Error reverseth the Iudgment in the Scire Facias Now the Plaintiff in the Scire Facias shall not have a new Scire Facias 34 H. 6.44 A Recovery against B. by false Oath and after Execution had B. enters and makes a Feoffment to a Stranger who enfeoffs him who recovers it is a good bar in an Attaint 27 H. 8.29 The Feoffees to an Vse are disseised the Disseisor enfeoffeth Cestuy que Use who enfeoffs a Stranger now by that Feoffment his right to the Vse is extinct And as to the Release the same is not properly a Release but rather a Defeasance to determine the power and authority aforesaid as if A. enfeoffeth B. with warranty and afterwards B. covenants with A that the said Warranty shall be void that Covenant shall enure to defeat and determin the Warranty And afterwards in the principal Case Iudgment was given against the Plaintiff See more of this Case in Cook 1. part Trin. 29 Eliz. In the Kings Bench. CCCLV. Owen and Morgans Case Ante 26. 93. GEorge Owen brought a Scire Facias against Morgan to have Execution of a Fine levied 8 Eliz. by which Fine the Land was given to the Conusee and his Heirs and the Conusee rendred the same to Husband and Wife Note that the Husband was the Conusor the remainder in Fee to the now demandant and Note that the Writ of Covenant was between the Conusee Plaintiff and the Husband Deforceant without naming of the Wife and afterwards the Husband suffered a common Recovery without naming of the Wife The Husband and Wife dyes without Issue and now Owen to whom the remainder in Fee was limited by the Fine brought the Scire Facias in bar of which the Recovery was pleaded It was argued by Serjeant Shuttleworth That the Recovery had against the Husband only was a good bar and should bind the remainder and he said That the Wife ought not to be named in or party to the Recovery for nothing accrued to her by the Fine because she was not party to the Writ of Covenant nor party to the Conusance and none can take by the render who was not party to the Writ of Covenant and to the Conusance Vide 30 H. 8. Fines 108. None can take the first Estate by the Fine but those who are named in the Writ of Covenant c. but every Stranger may take by Remainder Vide 3 E. 3. Er. Fines 114. 6 E. 2. Fines 117. 7 E. 3. Scire Facias 136. It is said by Horton If such a Fine is accepted it is good The Case was adjourned CCCLVI. A. Seized of a Manor to which two parts of the Advowson were appendant presents and afterwards aliens the Manor with the appurtenances the Alienee presents and purchaseth the third part of the Advowson and presents again one A. who was Chaplain to the Duke of Rutland and had a Dispensation from the Pope 1 Eliz. before the Statute was repealed and was instituted and inducted and afterwards accepted of a plurality viz. another Benefice and dyed 11 Eliz. The Queen presented for Lapse and her Clerk was instituted and inducted The said Lord of the Manor dyed seized inter alia and that Manor was allotted to the Wife of D. for her part and he brought a Quare Impedit It was moved if D. should not joyn in the Quare Impedit with him who had the third part and by Walmsley he is not to joyn in it 22 E. 4. by Brian If an Advowson descends to four Coparceners and they make partition to present by turns and the third doth present when the second ought for that time the presentment is gone but when it comes to his turn again he shall present which proves that they are as several
Tenants and therefore ought not to joyn c. It was Adjourned Temps Roign Eliz. In the Kings Bench. CCCLVII The President of Corpus Christi Colledge Case NOte It was holden by Cholmley Serjeant Plowden and many others in the Case of the President of Corpus Christi Colledge in Oxford That if the said Master or President of any such Colledge by his Will deviseth any Land to his Colledge and dyeth such Devise is void For at the time when the Devise should take effect the Colledge is without a Head and so not capable of such Devise for it was then an imperfect Body And so it was holden by the Iustices upon good advice taken thereof CCCLVIII Temps Roign Eliz In the Kings Bench. IN a Warrantia Chartae the Defendant said that the Plaintiff had not any thing in parcel of the Land the day of the Writ brought If in a Praecipe quod reddat the Tenant aliens and afterwards vouches the Vouchee is not bound to enter into the Warranty But here in this Case it may be That at the time that the Plaintiff requested the Defendant to warrant he was Tenant of the Land in which Case the warranty is attached and then if ever the Land be recovered against him he shall have this Writ and of this Opinion was Brown Iustice For the Land which the Defendant had at the time of the request is bound by the request but if he alieneth after the request he shall not have the Warranty CCCLIX Mich. 9 Eliz. In the Kings Bench. A Man seized of a Manor in which there are divers Copy-holds and the Custom there is That if any Copyholder leaseth his Land above the term of one year that he shall forfeit his Copyhold A Copyholder committed such a Forfeiture and afterwards the Lord leased the Manor for years and the Lessee entred for the Forfeiture and Weston said that his Entry was not lawful for although that the Heir may enter for a Condition broken in the time of his Ancestor because he is privy in blood yet the Lessee or Feoffee cannot do so for he is a Stranger such a one of whom an Estranger shall not take advantage Dyer If this forfeiture be preserved by Homage and enrolled in the Court Rolls the Lessee may well afterwards enter for by the forfeiture the Copyhold Estate is void and determined as if a Leafe for years be made rendring Rent upon Condition to cease if the Rent be not paid here presently by the not payment the Interest of the term is determined and of that the Grantee of the Reversion shall have advantage CCCLX Mich. 10 Eliz. In the Common Pleas. AN Action upon the Case was brought for stopping of a way The Plaintiff declared that the Duke of Suffolk was seized of a House in D. and let the same to the Plaintiff for life and that the said Duke and all those whose Estate c. have used time out of mind c. to have a way over the Land of the Defendant to the Park of D. to carry and recarry Wood necessary for the said House from the said Park to the same House and further declared That the Defendant Obstupavit the way It was moved by Carus That upon that matter no Action upon the Case lay because the Freehold of the House is in the Plaintiff and also the Freehold of the Land over which c. is in the Defendant But if the Plaintiff or the Defendant had but an Estate for years then an Action upon the Case would lye and not an Assize and it is not material If the Plaintiff had but an Estate for years in the Park quod fuit concessum per totam Curiam It was also holden That this word Obstupavit is sufficient without any more without shewing any special matter of the stopping as the erecting of any Gate Hedge Ditch c. for Obstupavit implyes a Nusance continued and not a personal disturbance as forestalling or saying to the Plaintiff upon the Land where c. that he should not go over or use the said way for in such case upon such a disturbance an Action upon the Case lyeth But as to a local and real disturbance the word Obstupavit amounts to Obstruxit and although in the Declaration is set down the day and year of the stopping yet it shall not be intended that it continued but the same day for the words of the Declaration are further By which he was disturbed of his way and yet is and so the continuance of the disturbance is alledged and of that Opinion was the whole Court. Leonard Prothonotary He hath declared of a Prescription habere viam tam pedestrem quam equestrem pro omnibus omnimodis Carriagiis and upon that Prescription he cannot have a Cart-way for every Prescription est stricti juris Dyer That is well observed and I confess that the Law is so and therefore it is good to prescribe habere viam pro omnibus Carriagiis without speaking either of a Horse or a Foot-way CCCLXI. A. Enfeoffed B. to the intent that B. should convey the said Land to such person as A. should sell it A. sold it to C. to whom B. refused to convey the Land and thereupon he brought an Action upon the Case against B. And by Wray Chief Iustice and Gawdy Iustice here is a good consideration for here is a trust and that which is a good consideration in the Chancery is in this case sufficient Shute Iustice was of a contrary Opinion And afterwards Iudgment was given for the Plaintiff Mich. 29 Eliz. In the Common Pleas. CCCLXII Sir Richard Lewknors Case SIr Richard Lewknor seized of Wallingford Park Ante 162. made a lease thereof for years and dyed the Lessee granted over his term to another excepting the Wood the term expired and an Action of Waste was brought against the second Lessee by the Coparceners and the Husband of the third Coparcener being Tenant by the Courtesie Shuttlewood and Snag Serjeants did argue That the Action would not lye in the form it was brought and the first Exception which was taken by them was because the Action was general viz. Quod fecit vastum in terris quas Sir Roger Lewknor pater praedict ' of the Plaintiff cujus haeredes ipsae sunt praefat ' Defendent demisit And the Count was that the Reversion was entailed by Parliament unto the Heirs of the Body of Sir Richard Lewknor and so they conceived that the Writ ought to have been special cujus haeredes de Corpore ipsae sunt For they said that although there is not any such Writ in the Register yet in novo Casu novum est apponendum remedium And therefore they compared the Case to the Case in Fitz. N. B. 57. 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 dyeth and the Husband committeth waste the Writ in that case and the like
time of the Recovery for he is estopped to say that his Father was not Tenant to the Praecipe and therefore it is a good Recovery against him by way of Estoppel CCCLXXXV Mich. 6 Jac. In the Kings Bench. IN a Writ of Error brought upon a Iudgment given in Communi Banco in an Ejectione firmae upon a Lease of a Running Water it was agreed by the Court That no Livery could be made of Running Water because it is fugitive but otherwise it is of Water in a standing Pool for that is certain and peramount and of that Livery ought to be with a dish of part of the Water CCCLXXXVI Duncombs Case In the Common Pleas. THe Grantee of a Rent-charge for life acknowledgeth a Statute and afterwards he released to the Terr-tenant It was the Opinion of Cook Chief Iustice in Communi Banco that the Rent after the Release should be put in Execution upon the Statute CCCLXXXVII The Opinion of Popham Chief Justice in the Kings Bench. IT was the Opinion of Popham Chief Iustice That if a man covenant to stand seized to the use of himself for life the remainder to the use of his Executors that in that Case the Executors shall take to the use of their Testator But if a man covenant upon good consideration to stand seized to the use of the Executors of a stranger that the word Executors is a word of Purchase and they shall take to their own use CCCLXXXVIII Mich. 7 Jac. In the Common Pleas. COok Chief Iustice put this case If the custom of a Manor is that every Tenant at his death shall pay his best Beast for a Heriot if a Feme sole who is Tenant for life of this Manor taketh a Husband and afterwards dyeth if the Lord shall have a Heriot Dodderidge the Kings Serjeant said that he should not because that the Wife had not Goods Mich. 7 Jac. In the Common Pleas. CCCLXXXIX Wards Case AN Information was against Ward and his Wife for his Wives not coming to the Church upon the Statute of 28 35 Eliz. It was said by Cook Chief Iustice That the Husband is chargeable for the Recusancy of his Wife and he said there needed no Conviction but before an Information the Husband shall not be chargeable for his Wife but where he is named with the Wife and he said That the King had a Fee-simple in their Lands for he hath it to him and his Heirs and Successors until conformity with satisfaction of the Arrearages Vide Statut. 28 Eliz. Rastal Tit. Corone Mich. 3 Jac. In the Common Pleas. CCCXC Wheelers Case A Copyhold custom is That a Woman shall have a Free Bench quam diu se bene gesserit and live chaft and she is incontinent of which the Lord hath not notice and the Lord admits her Tenant It was holden it should bind the Lord although he had not notice of the Incontinency Mich. 5 Jac. In the Star-Chamber CCCXCI Edwards and Wattons Case NOte for Law in the Star-Chamber If a man write a scandalous Letter unto another and put his name to it if the party who writ it publisheth the same either before or after the delivery an Action upon the Case lyeth against him at the Common Law But if the party who writes it doth not publish it yet he may be sued for the same in the Star-Chamber And it was said in this Case That he who receives Books which are written against the Religion established in the Kingdom and shews them to others with Comments of them he runs into a Praemunire by the Statute of 4 Eliz. CCCXCII Rolls tit Waste THe Case was A. made a Lease of White Acre to B. upon condition he should do no Waste in which there was a Fish-pond stored with Carps Pikes and their Fry C. destroys all the Fish B. being upon the Land for which A. enters 1. If the destruction of all the Fish and their Fry be Waste within the Statute of Gloucester It was said that it was for they are parcel of the Inheritance as are Deer within a Park enclosed But it was adjudged 29 Eliz. in Communi Banco in Moyle and Ewers Case That where a Lease of a Manor was in which was a Warren of Conies and the Lessee destroyed the Conies that it was not waste for they were ferae naturae and the Land bettered by them and such was the Opinion of Walmsley Iustice although the Conies were in a Warren paled and enclosed with a Wall but the destroying of Doves in a Dove-house is Waste And it was adjudged in Sir Francis Palmers Case 9 Jac. in B.R. That although the cutting of Vnderwood was not Waste yet the eradicating of it was Waste The other matter was If the destruction of the Fish by a Stranger the Lessee being upon the Land were waste it was said it was waste for qui non vetat peccare cum possit jubet and it was said That if a man commit waste or suffer another to do it he did incur the penalty in the Statute But in this case it was said That a Condition to defeat an Estate should be taken strictly As if a Custom be that if a Copyholder for waste done shall forfeit his Estate if a stranger doth the waste it is no Forfeiture for three things in Law shall be taken strictly Conditions Customs Penal Laws As if the Custom be That an Infant at the age of 15 may make a Feoffment he cannot make it by Attorney And it was adjudged 1 Jac. in Communi Banco in Woodleys Case So the Statute of 5 E. 6. a Penal Law is That a man shall not buy any Victual to sell the same again Yet it was adjudged That where a man buys Meal and makes the same into Starch and sells it he may well justifie the sale thereof and it is out of the Statute because it is not the same thing Pasc 8 Jac. In the Kings Bench. CCCXCIII Wards Case IT was adjudged in this Court That if a Mill be set upon Posts that no waste lyeth for it and that a Copyhold might be of a Mill as it was adjudged in Green and Harris's Case Also it was said That there is a real and personal Forfeiture of Copyhold Lands Real is not necessary to be found by the Homages as was resolved in Brocks Case but otherwise it is of a Personal Forfeiture And Hil. 8 Jac. a Woman Copyholder built a new House upon the Land and it was agreed to be a Forfeiture Pasc 8 Jac. In the Common Pleas. CCCXCIV Brown and Tuckers Case IF a man have Estovers to such a House 4 Co. 84. and he enlargeth his House or buildeth more Houses or Chimneys the Estovers remain to all the Houses and Chimneys which were there before and not to those added or new builded as it was adjudged Pasc 8 Jac. In the Common Pleas. CCCXCV Batcliffe and Chaplins Case 1 Roll. 623. IN an Ejectione firmae between Ratcliffe and Chaplin upon not
and before the 13 Weeks past the Lessor dyed and the Plaintiff his Executor brought Debt for the Rent It was adjudged by Cook and the other Iustices That the Action did not lye forthe Rent For the Rent being to be paid at Mich. or within 13 Weeks after the Lessee hath Election to pay it at any of the days and before the last day it is not due and when the Lessor dyeth before that day his Executors have not any right to the Rent but after the death of the Lessor having but an Estate for life the Rent is gone But if the Lessor had had a Fee-simple in the Land and had dyed before the last day the Heir should have had the Rent as incident to the Reversion But if the Lessor had survived both days the Rent had been a thing vested in him and his Executors should have had it but if the Rent had been reserved at Mich. and if it be behind by 13 Weeks that then it should be lawful for the Lessor to enter if the Lessor survive Mich his Executors shall have Debt for the Rent for then the Rent is due and the 13 Weeks are but a Dispensation of the Entry of the Lessor until that time And in this case as well as where the Rent is reserved at two days in the disjunctive it is sufficient that the Rent be demanded at the latter day without demanding of it at the first day Mich. 10 Jac. In the Common Pleas. CCCCIV Sir Baptist Hix and Fleetwood and Gotts Case Roll. tit Condition THe Case was Fleetwood and Gotts bargained and sold Weston Park being 300 Acres of Land to Sir Baptist Hix for 11 l. for every Acre which did amount to 25 30 l. and in the premises of the Indenture of Bargain and Sale it was agreed by the parties That the said Park being Wood-Land should be measured by a Pole of 18 Foot and a half And further it was covenanted That Fleetwood and Gotts should appoint one Surveyor and Hix another who should measure the said Park and if it by the measure should exceed the Number of Acres mentioned in the Indenture that then Hix should add to them according to the proportion of 11 l. for every Acre and if it wanted of the Measure then the said Fleetwood and Gotts should repay to Hix the Surplusage of that Mony according to the proportion of 11 l. the Acre And upon the Indenture Hix brought Covenant and Assigned a Breach because upon Measure it wanted 70 Acres and the Defendants did demur upon the Declaration because the Plaintiff had not therein shewed by what measure it was measured for they said by Shirley That although it was agreed in the first part of the Indenture that the measure should be by a Pole of 18 Foot and a half yet when they come to the Covenants there they do not speak of any Measure for which cause it shall be taken for such a Measure as the Statute speaks of scil a Measure of 16 Foot and a half the Pole and by such Measure there wants not any part of the Acres Dodderidge contr And he put this ground That if certainty once appeareth in a Deed and afterwards in the same Deed it is spoken indifferently Reference shall be unto the certainty which appeareth And therefore if by an Indenture Lands be given to a man Haeredibus masculis and afterwards in the same Deed it appears it is Haeredibus de Corpore suo It shall be an Estate-tail because the first words were indefinite and the last certain by which it appeared that he passed but an Estate in Tail And 4 E. 4. 9. b. the words of a Declaration was Noverint universi per praesentes nos J. S. teneri c. W. B. in 20 l. solvendum eidem J.S. It was holden by the Court the same did not make the Obligation void because it appeared by the first part of the Obligation that he should be bound to the Plaintiff and therefore the intent being so the Plaintiff might declare of a Solvendum to himself And the words J. S. should be Surplusage And 22 E. 3. 4. the Abbot of Selby granted quandam annuam pencionem 〈◊〉 ad rogatum J.E. illam scilicet quam idem J. E. habuit ad terminum vitae suae Et solvendam quousque sibi de beneficio Competo provisum fuerit It was holden by the Court in a Writ of Annuity brought That the word sibi should have reference to B. the Grantee and not to J. E. And Cook said That the original Contract did leave the Measure in this Case and for that he vouched Redwellys Case in Plowd Comment A Lease rendring Rent at Mich. at D. and if it be behind for a month after demand that the Lessor shall re-enter it shall be demanded at the first place Trin. 12 Jac. In the Star-Chamber CCCCV. Sir Richard Egertons Case IN this Case the Wife of Sir John Townsend being sentenced in 1000 l. and in Execution in the Fleet for the Costs of the Plaintiff these Points were resolved by the Court 1. If a man be Sentenced in the Star-Chamber to pay a Fine and to Imprisonment and the Delinquent renders his Body to Prison that notwithstanding the Body continues in Prison the King shall be satisfied the Fine out of the Profits of the Delinquents Lands 2. If a Feme Covert be sentenced there and she renders her Body to Prison and there abides That the Lands of her Husband shall be sequestred and the Profits thereof for the Fine of his Wife And that now upon the Statute of Recusancy the Lands of the Husband for the Recusancy of his Wife if he do not render her to Prison and discharge the same 3. If a man be Sentenced in the Star Chamber to pay a Fine and to have Imprisonment and he yield himself to Prison That before his Fine be also paid he shall not proceed in any Action at the Common Law against the Party in the same Suit. Pasc 12 Jac. In the Common Pleas. CCCCVI Crane and Parkins Case IN Trespass The Defendant pleaded that the Land in which was parcel of the Manor of Broughton Astley demisable by Custom and shewed That the Custom of the Manor was that if any Tenant for life dyed that the Lord for three years Fine ought to grant the same to his Heir and pleaded a Grant of the Manor to the Lord Grey of Grooby And also pleaded another Custom of the said Manor That if any Tenant for life of the said Manor had a Wife and dyed that the Wife shall have in the Land her Widows Estate And that after the death of the Wife that the Son for a Fine of three years paid to the Lord should have it for his life and that the Defendant claimed as Son according to that Custom The Plaintiff made Title as Lessee for years to the Lord Gray of the Manor and traverseth that there was not any such Custom
and prayed him to seal it And Wotton said that he would not that the Obligation was forfeited contrary if he had not denyed to seal it but had shewed the same to his Counsel as in our Case But the Opinion of the Iustices was that the Obligation was forfeited For when he knew the last instant of the time he ought to have had his Counsel there ready with him Vide the Case of Arbitrement 18 E. 4. 21. At another day the Case was argued again by Andrews and he said that the Obligation was not forfeited For he said it is a Rule in Law Sic utere tuo ut alienum non laedas and in E. 4. a man was bound upon request to relinquish and renounce Administration and there it was holden that after the request he ought to have convenient time to go to the Ordinary before it shall be said that he had forfeited his Obligation In 33 E. 3. it is said that if J. S. be bound That if A B infeoff C. that then he shall pay to the Obligee 10 l. Now if the Feoffment be made after Sun-setting as it well may be yet it is sufficient to save his Obligation if he pay the mony the next day And 19 H. 6. an Annuity was granted to an Infant until he was promoted to a Benefice if a Benefice be offered unto him before he be of sufficient age and he refuseth it the Obligation is not forfeited If a man be bound to enfeoff and make Livery and Seisin of the Manor of D to one upon request and afterwards the Party is made King in which Case he cannot take Livery now if upon request the Party refuseth yet it is no Forfeiture And it hath been holden here by you all That if a man unlearned seals a Deed which is written contrary to the intent of the Parties the same not being read unto him by that he shall not be bound for ever But the Opinion of the Court was as before That the Obligation was forfeited CLVII Pasc 26 Eliz. In the Common Pleas. NOte that Mead and Windham the other Iustices being absent were of Opinion That a Copyholder in Fee who by Custom may surrender in Fee may make a surrender in Tail without any Special Custom to warrant it and he who may prescribe to make a Feoffment in Fee may make a Lease for Life and it shall be good because Omne majus continet in se minus Trin. 27 Eliz. In the Kings Bench. CLVIII Trecarram and Friendships Case 1 Leon. 287. TRecarram made a Demise by these words This Indenture between Trecarram c. of the one part and Friendship his Wâ—â—e and their Children lawfully begotten at the Assignment of the said Friendship of the other part The Question was if L. the Daughter which the Husband and Wife had at the time of the Lease made was Party to the said Indenture and so took by it Or if another Son of Friendship which after he made his Executor should have the Term. Hamon 30 E. 3. If a Gift be made to Infants of such a man it is a good Name of purchase and if he hath but one Infant it is good to him and so in our Case where Friendship had Issue a Daughter at the time of the Lease that she should take only otherwise where he had many And the words viz. at the Assignment of Friendship are mere surplusage as 20 Ass where a man gave twenty loads of Wood in such a Wood whereof fourteen he hath of the gift of such a one these words whereof he hath of the gift of such a one are surplusage Cook conceived that the Daughter who was in esse at the time of the demise should have the Term For if a man make a grant to two as the one of them is not Capax he who is capable shall have the whole As a Feoffment to J. S. and the right Heirs of J. D. J. D. being alive J. S. shall have the whole So Ass a gift to a man and to such a wife which he shall have he shall have the whole and the wife nothing The words At the Assignment c. are void for there is not a Person able to take at the time of the grant therefore he shall not take afterwards and because the Daughter is able she shall Wray Iustice conceived that these words At the Assâ—gnment of Friendship were not void but that he had reserved to him liberty to make his Son party or not and because he had not assigned him that he took nothing Ayliffe If Lands be leased to me my Wife and William my Son whereas his Name is John it is void as to the Son for the Misnomer but if he had said Son without more it had been good to the Son and so here if he had not mentioned any Assignment then the Daughter should have had it but contrary by the words of the Assignment Clench The intent of the parties is to be considered As if I grant to you Common within my Manor of D. it shall be construed to be within my Lands commonable and not in my Orchard And here it shall be intended those Children which he shall name when the sealing was and if he name others after it shall be void as a Lease to you and to her who you shall take to wife is void for there ought to be such a person at the time of the commencement of the Deed which might take And the Opinion of the whole Court was That the Defendant who claimed by the Executor should have the term and not the Plaintiff who claimed by the Daughter and therefore Iudgment was entred that the Plaintiff nihil capiat per Billam Pasc 24 Eliz. CLIX. The Countess of Sussex and Worths Case IN 4 and 5 Phil. and Mary 1 Leon 35. â— 3 Leon. 132. Co. 6 Rep. 33. Fitz-williams Case a private Statute was made by which the Manor of Barnham was assured to the Countess of Sussex for her Ioynture Proviso that it should be lawful for the Earl of Sussex to make a Lease or Leases for 21 years The Earl made a lease for 21 years and afterwards he made another lease for 21 years within a year before the first lease ended and the second lease was to begin at the end of the first lease and if the second lease was good and within the intent of the Act was the question Popham Attorney That it was not 1. Because it is to begin at a day to come 2. Because it is made during the first lease But it may be objected that it is said lease or leases It is not the sense of the Act for by it he might only make leases in possession and not in futuro and so he might make a lease for 21 years to begin after his death which should be a great prejudice to the Countess and against the intent of the Act which was made for her advantage The Lord Treasurer and W.