things 1. Leases the number of the years 21 non ultra 2. antiquus redditus vel eo amplior yet in reason and good understanding we ought to think that the intent of the Act was that the said Manor should now come to the said Lady Frances surcharged with Leases in Reversion or to begin at a day to come for if by this Act the said Earl might make a Lease to begin three months after by the same reason he might make a Lease to begin twenty years after and also to begin after his death It hath been objected that the Lord Treasurer had a Commission to make Leases of the Queens Lands and that by virtue thereof he made Leases in Reversion I know the contrary to that for every such Lease is allowed by a Bill assigned and not by the ordinary Commission aforesaid the words of our Act are Dimissiones facere pro termino 21. annorum that shall be meant to begin presently As if I lease to you my Lands for one and twenty years it shall be intended to begin presently and he cited the Case betwixt Fox and Collier upon the Statute of 1 Eliz. cencerning Leases made by Bishops That four years of a former Lease being in being the Bishop leased for one and twenty years the same was a good lease notwithstanding the former lease for the lease began presently betwixt the parties And it hath been adjudged that a lease for years by a Bishop to begin at a day to come is utterly void And he cited the Case of the late Marquess of Northampton who by such an Act of Parliament as ours was enabled to make leases of the Lands of his Wife for one and twenty years and of the said Lands an ancient lease was made before the said Act which was in esse and before the expiration thereof he made a lease by virtue of the said Act to commence after the expiration of the former lease and that lease was allowed to be a good lease warranted by the said Statute because that the first lease which was in esse was not made by force of the said Act but if the said former lease had been made by virtue of the said Statute the second lease had been utterly void XLV Trin. 28 Eliz. In the Kings Bench. Copy-hold Surrender by Attorney not good A Copy-holder of the Manor of the Earl of Arrundel did surrender his customary Lands to the use of his last Will and thereby devised the Lands to his youngest Son and his Heirs and died the youngest Son being in prison makes a Letter of Attorney to one to be admitted to the Land in the Lords Court in his room and also after admittance to surrender the same to the use of B. and his Heirs to whom he had sold it for the payment of his debts And Wray was of opinion that it was a good surrender by Attorney but Gawdy and Clench contrary 3 Cro. 218. 9 Co. 75. and by Gawdy If he who ought to surrender cannot come in Court to surrender in person the Lord of the Manor may appoint a special Steward to go to the prison and take the surrender c. and by Clench Lessee for years cannot surrender by Attorney but he may make a deed purporting a surrender and a letter of Attorney to another to deliver it XLVI Troublefield and Troublefields Case Trin. 28 Eliz. In the Kings Bench. Dy. 337. b. Co. 1 Inst 15. 2. b. 52. 245. b. 252. 6. Post 51. Entry THe Case was that a Copy-holder did surrender to the use of his Will and thereby devised the Land to his Wife for life the remainder over to his son in tail and died the Wife entred and died a stranger did intrude upon the Lands and thereof made three several Feoffments to three several persons he in the Remainder entred upon one of the said three Feoffees in the name of all the Lands so devised and made a lease of the whole Land And by Clench and Wray it was a good Entry for the whole and by consequence a good lease of the whole Gawdy contrary Note all the Lands were in one County See 16 Eliz. Dyer 337. 9 H. 7. 25. XLVII Parmort and Griffina's Case Trin. 28 Eliz. In the Kings Bench. IN Debt upon an Obligation by Parmort against Griffina a Merchant-stranger the Defendant pleaded Debt that the Obligation was made upon condition for the performance of certain Covenants contained within certain Indentures and shewed what c. and alledged further that in the said Indenture there is a proviso that if aliqua lis vel controversia oriatur imposterum by reason of any clause article or other agreement in the said Indenture contained that then before any sute thereupon attempted the parties shall choose four indifferent persons for the ending thereof which being done the Indenture and Obligation shall be void And in fact saith that Lis controversia upon which the Action is brought groweth upon the said Indenture upon which there was a demurrer in Law. And because the Defendant hath not shewed specially upon what controversie or strife and upon what article certain The Court was clear of opinion that the Bat was not good And also the Court was of opinion Proviso taken strictly that the said Proviso did not extend to subject and submit the breach of every Covenant or Article within the said Indenture to the Arbitrament of the said four persons but only where strife and controversie doth arise upon the construction of any Covenant c. within the said Indenture so as the Defendant ought to have shewed such matter which fell within the Arbitrament by the meaning of the said Indenture and Iudgment was given against the Defendant XLVIII Partridge and Partridges Case Mich. 28 29. Eliz. In the Common Pleas. IN Dower by Partridge against Partridge the Case was Dower that Land was given to the Father for life the reversion to his Son and Heir for life the remainder to the right Heirs of the body of the Father The Father and Son joyn in a Feoffment to the Vncle in Fee scil to the Brother of the Father The Vncle takes a Wife the Father dieth the Son being his Heir in tail the Vncle dieth without issue so as the Land descendeth to the Son as Heir to his Vncle against whom the Wife of the Vncle brought Dower It was moved if the Son being Herein can to his Father and Heir also to his Vncle for the Fee descended be now remitted for then no Dower accrueth to the Wife of the Vncle for the estate of which she demands Dower is gone but if the livery in which the Son joyned with his Father be the livery of the Son Remittâ— the same lies in his way in the impediment and preventing of the Remitter so as during his life he shall be adjudged seised of the Lands in Feesimple by descent from his Vncle Then Dower lyeth for the same
Kings Bench. PRowse brought an Action upon the Case against Cary for words That the Plaintiff did subborn procure and bring in false Witnesses in such a Court at Westminster c. The Defendant pladed Not guilty And it was found that he did procure and brought in false Witnesses but was acquitted of the suborning It was objected 1 Cr. 296. 554. 607. That the Action doth not lie for it may be that the Defendant did not know that he would depose falsly Thou art a forger of false Writings are not actionable and so it was adjudged for it may be understood of Letters of small importance but that Exception was not allowed for it shall be taken in malam partem and cannot be spoken of any honest man. CXXXII Pasch 30 Eliz. In the Kings Bench. A. Was bounden in an Obligation to B. upon condition that if A deliver to B. twenty Quarters of Corn the nine and twentieth of February next following datum presentium that then c. and the next February had but eight and twenty days And it was holden that A. is not bounden to deliver the Corn until such a year as is Leap-year for then February hath nine and twenty days and at such nine and twentieth day he is to deliver the Corn and the Obligation was holden good CXXXII Allen and Palmers Case Pasch 30 Eliz. In the Kings Bench. THe Case was a Copy-holder did surrender his Lands to the use of a stranger for life Copy-holder surrenders where his heir shall be in by purchase 2 Roll. 416. Co. 1 Inst 226. and afterwards to the use of the right Heirs of the Copy-holder who afterwards surrendred his Reversion to the use of a stranger in Fee died and the Tenant for life died and the right Heir of Palmer the Copy-holder entred And by Cook nothing remained in the Copy-holder upon the said surrender but the Fee is reserved to his right Heirs for if he had not made any such second surrender his Heir should be in not by descent but by purchase And the common difference is where a surrender is to the use of himself for life and afterwards to another in tail the remainder to the right Heirs of him who surrendreth there his Heirs shall have it by descent contrary where the surrender hath not an estate for life or in tail limited to him for there his Heir shall enter as a purchasor as if such use had been limitted to the right Heirs of a stranger And by him if a Copy-holder surrender to the use of his right Heirs the Land shall remain in the Lord until the death of the Copy-holder for then his Heir is known c. See Dyer 99. The Husband made a Feoffment to the use of his Wife for life and afterwards to the use of the right Heirs of the body of the Husband and Wife begotten they have issue the Wife dieth the issue cannot enter in the life of his Father for then he is not his Heir See Dyer 7 Eliz. 237. The Husband is sole seised in Fee and levieth a Fine of the Land to the use of himself and his Wife and the Heirs of the Husband and they render the Land to the Conusor for the life of the Husband the remainder to B. for life the remainder to the right Heirs of the Husband The Husband dieth B. dieth Now the Wife shall have the Land for the life of the Wife for she shall not lose her estate by that render and this remainder to the right Heirs of the Husband is void and the Land and estate in it is in him as a Reversion and not as a Remainder And a man cannot tail a Remainder to his right Heirs whilest he is living unless it begin first in himself See Br. 32 H. 8. Gard. 93. CXXXIV Pearle and Edwards Case Pasch 30 Eliz. In the Kings Bench. THe Case was that the Defendant had leased Lands to the Plaintiff rendring Rent for certain years Assumpsit Consideration 1 Cro. 94. and after some years of the Term expired the Lessor in consideration that the Lessee had occupied the Land and had paid his Rent promised the Plaintiff to save him harmless against all persons for the occupation of the Land past and also to come And afterwards H. distrained the Cattle of the Plaintiff being upon the Lands upon which he brought his Action Golding Here is not a sufficient consideration for the payment of the Rent is not any consideration for the Lessee hath the ocupation of the Land for it and hath the profits thereof and also the consideration is past Cook The occupation which is the consideration continues therefore it is a good Assumpsit as 4 E. 3. A Gift in Frank-marriage after the espousals and yet the marriage is past but the blood continues so here and here the payment of the Rent is executory every year and if the Lessee be saved for his occupation he will pay his Rent the better Godfrey If a man marrieth my Daughter against my will and afterwards in consideration of that marriage I promise him one hundred pounds the same is no good consideration 2 Len. 111. which Clench Iustice denied And afterwards the Plaintiff had Iudgment to recover his damages CXXXV Wakefords Case Pasch 30 Eliz. In the Kings Bench. Extinguishment of Copy-hold by Release THe Earl of Bedford Lord of the Manor of B. sold the Free-hold Interest of a Copy-holder of Inheritance unto another so as it is now no part but divided from the Manor and afterwards the Copy-holder doth release to the purchasor It was holden by the Court that by this Release the Copy-hold Interest is extinguished and utterly gone but if was holden that if a Copy-holder be ousted so as the Lord of the Manor is disseised and the Copy-holder releaseth to the Disseisor nihil operatur CXXXVI Docton and Priests Case Pasch 30 Eliz. In the Kings Bench. IN Trespass for breaking of his Close 1 Cro. 95. it was found by special verdict that two were Tenants in common of a house and of a close â—djoyning to the house and they being in the house make partition without deed of the house and the close see 3 E. 4. 9. 10. Partition without deed upon the Land is good enough Vide 3 H. 4. 1. And it seems by 3 E 4. Partition made upon the Land amounts to a Livery Vide 2 Eliz. Dyer 179. Partition by word out the County void 19 H. 6. 25. Betwixt Tenants in common not good without deed 2 Roll. 255. 47 E. 3. 22. being upon the Land it is good without deed Two Ioynt-tenants make partition by word make partition in another County the same is no partition for as to that matter the common Law is not altered by the Statute but as to compel such persons to make partition Wray Iustice conceived that the partition here being without deed was not good although made upon the Lands Vide 18 Eliz. Dyer 35.
parties as if the condition were to go to Rome And as to the Request he conceived that it ought to be shewed specially and certainly for it is for the benefit of the Covenantee for without request the Action doth not lie which Clench granted And it was holden by the whole Court that the bar shall not help the insufficient Declaration No more if the Defendant plead Non Assumpsit yet the defect in the Declaration of a Request not duly shewed remaineth Gawdy The bringing of the Action is a Request Clench A Writ of Debt is a Praecipe for which there licet saepius requisitus is sufficient but a Writ of Covenant is not so CLXXI. Piers and Hoes Case Trin. 30 Eliz. In the Kings Bench. IN an Action of Trespass it was found by special verdict Trespass 1 Cro. 131. 1 Roll. 854. that A. seised of Land in the right of his Wife being her Ioynture by a former Husband he and his Wife made a Feoffment to a stranger and his Heirs Habend to the use of the stranger and his Heirs during the life of the Wife only Shutleworth The same is a forfeiture for if the same Feoffment had been without any use expressed Forfeiture then it should be to the use of the Feoffor and his Heirs and by consequence a forfeiture and as the case is here it is also a forfeiture for during the life of the Wife the use is expresly to the use of the Feoffee and his Heirs and the remainder of the Fee-simple is to the use of the Feoffor scil the Husband and his Heirs Popham I conceive that here is a forfeiture Owen 64. 2 Cr. 200 201. 3 Cr. 167. Hob. 373. for here are several limitations limitation of the estate unto one and of the use unto another And the words for the life of the Wife do not refer to the estate but to the use with proximum antecedens And he resembled the same to the case of Leonard Sturton in which he was of Councel A man granted Lands Habend unto the Grantee to the use of the Grantee and the Heirs of his body the same is no estate tail in the Grantee but only an estate for life for the Limitation of the use cannot extend the estate Cook contrary The case is that A. Wife of one Piers being Tenant for life of the Ioynture of the said Piers took to Husband Hoe they both by Deed grant totum suum Messuagium to one Clarke Habendum to him and his Heirs for the life of the Wife only I conceive that here is not any forfeiture for it is but one intire sentence And if there be a double construction of a deed that which is most reasonable shall be taken so as wrong be not done Construction of Deeds and therefore these words for the life of the Wife shall refer unto both scil the estate and the use and their intent was not to commit a forfeiture as appeareth by the words of the Deed for they grant solum messuagium and that was not but for the life of the wife ad solum usum of the Feoffee and his Heirs during the life of the Wife and violence should be offered to this word solum if the Feoffee or his Heirs should have ultra the life of the Wife and the word tantum cannot otherwise be expounded but that the estate for life only shall pass from them And he cited the Case of 34 E. 3. Avowry 258. A. gives Lands unto B. in tail and for default of such issue to the use of C. in tail rendring Rent the same render shall go to both the estates So a Lease for life to A. the remainder to B. to the use of C. the same use goeth out of both the estates and not only out of the Remainder so here upon the same reason Regula these words for the life of the wife shall refer to the first estate as well as to the use And in such Cases the rule of Bracton ought to be observed viz. Benignae faciendae sunt interpretationes verborum ut res magis valeat quam pereat As the Case in 6 H. 7. 7. in a Cessavit the Plaintiff counted that the Tenant held by Homage Fealty Sute at Court and certain Rent and in the doing of the services aforesaid the Defendant had cessed and in not doing of Homage and Fealty a man cannot cesse by two years But it was holden that the said Cessavit should be referred to such services only in which one might cease and that is Sute of Court and Rent And if pleadings shall have such favourable construction a multo fortiori shall a Deed 4 E. 3. Wast 11. A man leased for life and by the same deed granted power unto the Lessee to take and make his profit of the said Lands in the best manner should seem good to him without contradiction of the Lessor or his Heirs yet by those words it is not lawful for him to do wast for there it is said that in construction of Deeds we ought to judge according to that intent which is according to Law and Reason and not to that which is against reason See 17 E. 3. 7. accordingly so in the principal Case the words in the Deed of Feoffment shall be so expounded that the estate be saved and not destroyed Popham contrary The Cases put by Coke are not like to the Case in question For where the Rent is out of both estates the same is but reason for the Rent is in respect of the Land and because he departs with both estates it is reason the Rent issue out of both and the like reason is of the Case of an use for if a man makes a Lease for life to A. the Remainder over to B. the same shall be to their use respectively and if he do express the use the same shall be accordingly and shall bind both estates but there Clark hath two estates one by the common Law and the other by the Statute 3 Cro. 167. But the words subsequent for the life of the wife only cannot refer to both estates A. gives Lands to one his Heirs for forty years the same is but a plain Term for years But if a Feoffment in Fee be made to one his Heirs to the use of another for forty years there the Fee passeth to the Feoffee and the Term to Cestuy que use Gawdy conceived that it is not any forfeiture for these words during the life of the wife only were put in the Deed to express the intent of the parties and therefore the same shall not be void and he conceived that they were put in to exclude the forfeiture and therefore they shall serve for that purpose And afterwards it was resolved by all the Iustices except Gawdy that it was a forfeiture for by the Feoffment the Fee-simple passeth and that to the use of the Feoffor the estate and the use are several things and
Godfrey in arrest of Iudgment That it is apparent upon the Declaration That the Trespass was done in the time of their Predecessors of which the Successor cannot have action and actio personalis moritur cum persona See 19 H. 6. 66. But the old Church-wardens shall have the action Cook contrary and that the present Church-wardens shall have the action and that in respect of their office which the Court granted And by Gawdy Church-wardens are a Corporation by the Common Law. See 12 H. 7. 28. by Frowick That the New Church-wardens shall not have an action upon such a Trespass done to their Predecessors contrary by Yaxley See by Newton and Paston That the Executors of the Guardian in whose time the Trespass was done shall have Trespass CCXLIX Hauxwood and Husbands Case Pasch 31 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared for disturbing of him to use his common c. and shewed that A. was seised of certain Lands to which this Common was appendant Prescription 1 Cro. 153. for the term of his Life the Remainder to B. in tail and that the said A. and B. did demise unto him the said Lands for years c. Pepper The Declaration is not good for it is not shewed how these particular estates did commence See 20 E. 4. 10. By Piggot Lessee for life and he in the Remainder cannot prescribe together and he in the Remainder cannot have common Also he declares That Tenant for life and he in Remainder demised to him whereas in truth it is the demise of Tenant for life and the Confirmation of him in the Remainder also he doth not aver the life of Tenant for life Popham He needs not to shew the commencement of the particular estates for we are a stranger to them the Prescription in them both is well enough for all is but one estate and the Lease of both See 27 H. 8. 13. The Lessee for life and he in the Reversion made a Lease for life and joyned in an action of wast and there needs no averment of the life of the Tenant for life for he in the Reversion hath joyned which Gawdy granted as to all And said the particular estates are but as conveyance unto the action Wray conceived the first Exception to be material c. CCL Sweeper and Randals Case Rot. 770. Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass for breaking of his Close and carrying away his goods by Sweeper against Randal upon Not guilty pleaded i Cro. 156. The Iury found That one John Gilbert was seised of the Land where c. and leased the same to the Plaintiff at Will who sowed the Land and afterwards the Plaintiff agreed with the said Gilbert to surrender to him the said Land and his interest in the same and the said Gilbert entred and leased to the Defendant who took the Corn. It was moved if these words I agree to surrender my Lands be a present and express surrender Gawdy It is not any surrender for Tenant at will cannot surrender but it is but a relinquishing of the estate if it be any thing Surrender but in truth it is not any thing in present but an act to be done in future Wray I agree A. demiseth the Manor of D. at will it is no Lease no more shall it be here any Surrender or any relinquishing of the estate Clench conceived That the intent of the Party was to leave his estate at the time of the speaking otherwise those words were void for he might leave it at any time without those words Gawdy If such was his intent the Iury ought to find it expressly and afterwards Iudgment was given for the Plaintiff CCLI Ward and Blunts Case Trin. 31. Eliz. In the Kings Bench. Trover and Conversion 1 Cro. 146. IN an Action upon the Case of Trover of certain Loads of Corn at Henden in Middlesex and the conversion of them The Defendant pleaded That before the conversion he was seised of certain Lands called Harminglow in the County of Stafford and that the Corn whereof c. was there growing and that he did sever it by force of which he was possessed and the same casually lost and that the same came to the hands of the Plaintiff and the Plaintiff casually lost the same and the same came to the hands of the Defendant at Henden aforesaid and he did convert the same to his own use as it was lawful for him to do upon which the Plaintiff did demur in Law. Atkinson The Plea is good for the conversion is the point of the action and the effect of it For if a man take the same and do not convert he is not guilty And here the Defendant doth justifie the conversion wherefore he cannot plead Not guilty The general issue is to be taken where a man hath not any colour but here the Defendant hath colour because the Corn whereof c. was growing upon his Land which might enveigle the Lay people and therefore it is safest to plead the special matter But admit that it doth amount but to the general issue yet there is not any cause of Demurrer but the Plaintiff ought to shew the same to the Court and pray that the general issue be entred and the Court ex officio ought to do it Egerton the Queens Solicitor contrary The Plea in Bar is not good The Plaintiff declares of a Trover of his goods ut de bonis suis propriis and the Defendant pleads That he took his own goods which is not any answer to the Plaintiff See 22 E. 3. 18. In Trespass of taking and carrying away his Trees The Defendant pleads That they were our Trees growing in our own soil and we cut them and carryed them away and the plea was challenged wherefore the Defendant pleaded over without that that he took the Trees of the Plaintiff So 26 Ass 22. and 30 E. 3. 22. Another matter was The Plea in Bar is That before the time of the Conversion the Defendant was seised of the Land and sowed it and that after the Corn was severed but he doth not say that he was seised at the time of the severance and then it might be that he had severed the Corn of the Plaintiff c. and that was holden by the Court to be a material exception wherefore Iudgment was given for the Plaintiff But as to the first Exception the same was disallowed For the Court ex Officio in such case ought to cause the general issue to be entred but the Plaintiff ought not to demur upon it CCLIV Cheiny and Langleys Case Hill. 31. Eliz. Rott 638. Trin. 31 Eliz. In the Kings Bench. THe case was That Tenant for life of certain Lands leased the same for years by Indenture with these words I give grant 1 Cro. 157. Leases bargain and sell my interest in such Lands for twenty years To have and to hold
leaving out I. S. and see Amy Townsends Case in the Commentaries where the Husband seised in the Right of his Wife makes a Feoffment in Fee to the use of himself and his wife for their lives the Remainder over to another the husband dyeth the wife refuseth the estate limited to her by the Husband she brings Sur cui in vita not against the heir but against him in the Remainder to whom the Land doth accrue by the refusal of the wife not against the heir of the Feoffor and I grant That where an estate in use or otherwise is to begin upon a condition precedent which is impossible or against the Law the estate shall never rise or begin And here the Case of the Lord Borroughs 35 H. 8. Dy. 55. was cited Where the Father covenanted in consideration of marriage of his Son that immediately after his death his eldest Son shall have the possession or use of all his Lands according to the same course of inheritance as then they stood and that all persons now seised or to be seised should be seised to the said use and intent and it was holden That upon that matter no use is changed But if the Words had bin Immediately after his death they should remain then although the words of the Limitation be In futuro the use of the Fee shall rest in the Son presently and the words In futuro ought not to be interpreted but in benefit of him to whom the use and estate is limited 9 Eliz. Dyer 261. A. Leaseth for thirty years and four years after the beginning of the said term he makes another Lease for years by these words Noverint c. dictis 30 annis finitis completis demisisse omnia praemissa to the said c. Habendum tenendum a die confectionis praesentium termino praedict finito usque ad finem 30 annorum And by the opinion of all the Iustices This new Lease shall commence in possession at the end of the former term and not before and if it should not be expounded the second Lease should be in effect an estate but for ten years which was not the intent of the parties and every grant shall be expounded most strongly for the grantee and to his advantage to which purpose he said he had vouched this Case Also by him there is not any difference where the use is limited by way of covenant or upon a Feoffment And if a man enfeoffeth B. upon condition that he shall enfeoff C. now if he offer to enfeoff C. and he refuseth the Feoffor may re-enter But if the condition were to give to C. in tail then upon such refusal of C. the Feoffor shall not re-enter See 2 E. 4. 2. 19 H. 6. 34. E. si Equitas sit adhibenda in construction of conditions a multo fortiori in case of Vses A Feoffment in Fee upon condition that the Feoffee shall grant a Rent charge to J. S. who doth it but J. S. refuseth the Feoffor shall not re-enter for that was not the intent of the condition If in the principal case Post 266. the limitation of the use had been after the expiration of twenty four years then no use should rise before the twenty four years expire but where not the time but the estate is material there if the estate be void the use shall go to him in the Remainder presently and shall not stay the time 1 Co. 154. c. Egerton Solicitor first it is to see if the use limited to William Paget be good secondly if William Paget doth not come before his time to shew his Right If this use limited to William Paget be a Remainder or an estate to begin upon a contingent or a present estate the estates formerly limited being void and he conceived that it is not a Remainder for there is not any estate upon which it may depend And the words are after the estate for twenty four years ended or expired that then and from thenceforth to the use of William Paget c. so that no use is limited to him before the particular estate is ended therefore no Remainder for a Remainder ought to begin when the particular estate begins Without doubt that was not the intent that William Paget should have the Land during the life of his Father and yet the use limited during the life of his Father was void and if the Remainder should take effect during the said twenty four years against Eusall and his companions wherefore should it not also take effect against Trentham and the others to whose use it was limited during the life of the Lord Paget And here the use limited to William Paget is to begin upon a collateral contingent upon which if it cannot rise it shall not rise at all and I conceive that the use limited to William Paget shall never rise or begin for it is limited to begin when the term of twenty four years is ended and that is never for that which cannot begin cannot end and this Term is meerly void Ergo it cannot begin Ergo it cannot end then this thenceforth cannot be and so this contingent can never fall H. 6. 7. E. 6. A Lease was made for years upon condition that if the Lessee do not pay such a sum of money that he should lose his Indenture the meaning and sense of these words is not that he should lose the Indenture in parchment but that he should lose his Term The Iudgment in an Eectjone firmae is Quod querens recuperet terminum suum that is to be understood not the time but his Interest in the Land for the Term And Coke secretly said that in that case there is not any contingent for the estates precedent never began And as to the Case cited before by Coke Br. Leases 62. If the last Lease be made by Indenture reciting the former Lease certainly the second Lessee shall not be concluded to claim the Land demised presently but shall tarry until the years of the first Term be expired by effluction of time And as to Mawnds Case cited before there is an estate upon which a Remainder may depend scil the estate tail alledged to Robert c. If such as now is limited to William Paget had been limited at the Common Law to a younger Son the eldest Brother should have the Land in the Interim discharged of any use and now after the Statute no use limited to William Paget before the contingent where therefore is it in the mean time In the Lord Paget who being attainted it accrues to the Queen and out of the possession of the Queen this use shall never rise although that the contingent be performed for now the use is locked up A use doth consist in privity of the estate and confidence of the person if these be severed the use is gone And here if the possession be in the Queen she cannot be seised to another use Note by Godfrey that
over the Feoffees do not pay the said mony within the said 15 days afterwards Curties attorns to the Feoffees It was moved if the Reversion of the Lands passed to Curties passeth by the Feoffment of the Manor without attornment which see Littleton 133 134. 2. Attornment If by the attornment of Curties after the 15 days the uses can rise to Bracebridge and his wife c. and it was said That the Case 20 H. 6. Avowry 11 12. If a Manor be granted for life the remainder over in Fee Tenant for life dieth if the Tenants attorn to him in the Remainder the same is good and if a Reversion be granted to two and one of them dieth attornment to the survivor is good and if a Reversion be granted to Husband and Wife in special tail the Wife dieth afterwards without issue Attornment to the Husband is good and if a Reversion be given in Frank-marriage and afterwards the Husband and Wife are divorced and afterwards the particular Tenant attorns to the Wife the same is good and by Manwood If a Man seised of a Manor the demesns of which extends into two Counties and hath issue a Son and a Daughter by one woman and a Son by another woman and dieth the eldest Son enters into the Demesns in one County only and takes the profit in one County only and dieth without issue the Daughter shall have and inherit the Demesns or Services whereof her Brother was seised and the Son of the half-blood the rest And by Manwood the attornment of Curties who was the first Lessee shall bind Moore the second Lessee for he ought to attorn against whom lieth the Quid juris clamat And if a Lease for years be made of a Manor and the Reversion of it be granted to another in fee if the Lessee for years attorneth it shall bind the Tenants of the Manor 18 E. 2. A man seised of a Manor in the right of his Wife leased parcel of it for years without his wife the Reversion thereof is not parcel of the Manor contrary if the Lease had been made by Husband and Wife And by Dyer if Tenant in tail of a Manor leaseth parcel for years and afterwards makes a Feoffment of the whole Manor and makes Livery in the Demesns not leased the Reversion of the Land leased doth not pass for by the Feoffment a wrong is done to the Lessor which the Law shall not further enlarge than appeareth by the Deed contrary in case of Tenant in fee of a Manor and that without Deed with Attornment And it was the Case of one Kellet 25 H. 8. Kellet was Cestuy que use before the Statute of 27 H. 8. of divers Lands by several Conveyances the use of some being raised upon Recovery of some upon Fine and of some upon Feoffment and he made a Feoffment of all these Lands by Deed with a Letter of Attorney to make Livery the Attorney entred into part of the Land and made Livery in the name of the whole and it was agreed by all the Iustices that the Lands passed notwithstanding in others possession i.e. other Feoffees And by Dyer If the Tenants of a Manor pay their Rents to the Disseisor they may refuse again to pay them and if a Lease be made for years the Remainder for life if the Lessor will grant over his Reversion the Lessee for years shall Attorn and his attornment shall bind him in the remainder for life and if a Lease be made to one for years the remainder over for life the remainder to the Lessee for years in Fee. Now if the Lessee for years grant all his interest c. there needs no attornment and if Grantee of a Rent in fee leaseth for life and afterwards grants the Reversion to another the Attornment of the Ter-tenant is not requisite but only of the Grantee for life It was also holden Relation That this Attornment by Curties two years after the Livery was sufficient for it shall have relation to the Livery to make it parcel of the Manor but not to punish the Lessee for waste done mean between the Livery and the Attornment but betwixt the Feoffor and the Feoffee it shall pass ab initio It was holden also That although the uses for it limited are determined by the default of payment within the 15 days yet the Feoffees shall take the Reversion by this Attornment to the second uses 2 Len. 222. and if I enfeoff one upon condition to enfeoff J.S. who refuseth now the Feoffee shall be seised to my use but if the condition were to give in tail contrary So here is a Limitation beyond the first use which shall not be defeated for want of Attornment to the first uses and here it was not the meaning of Bracebridge to have the Lands again upon breach of the condition in his former estate but according to the second use and Iudgment was given in the principal case according to the resolutions of the Iudges as aforesaid And it was said by Harper Iustice That if a Feoffment in Fee be made to J. S. upon condition that he shall grant to A. a Rent-charge who refuseth it J.S. shall be seised to his own use Antea 199. CCCLVI. 20 Eliz. In the Common Pleas. THe Case was this Lord and Tenant by service to pay every year such a quantity of Salt but since 10 H. 7. the Tenant hath always paid the money for Salt. The question was If the Lord might resort to the first service Seisin and if the money be Seisin of the Salt. And Manwood took this difference i.e. where the Lord takes a certain sum of money for the Salt the same is not any Seisin for the service is altered as at the first Socage Tenure was a work done by labor i.e. Plowing but now it is changed into certain Rent and the Lord cannot resort to have his Plowing and in Kent divers Tenants in ancient time have paid Barley for their Rent but the same afterward was paid in a certain sum of money so as now the Lord of Canterbury who is Lord of such Tenements cannot now demand his Barly c. but if the sum which hath been used to be paid be incertain one year so much according to the price of Salt then such a payment of money is a sufficient Seisin of the Salt. Quod fuit concessum per Curiam CCCLVII 20 Eliz. In the Common Pleas. IN Accompt brought by an Heir Copyholder for the profits of his Copyhold Lands taken during his Nonage the Defendant pleaded That by the Custom of the said Manor Accompt by the Heir of a Copyholder the Lord of the Manor might assign one to take the profits of a Copyhold descended to an Infant during his Nonage to the use of the Assignee without rendring an accompt and the same was holden to be a good Custom as a Rent granted to one and his Heirs Custom to cease during the
the said Goods to the Defendant at London by force of which he took them at London absque hoc that he took them at Coventry and that traverse not holden good for the Defendant by such a gift might justify the taking of the Goods in any place as well as in the place where the gift was made but if in such case the Defendant had pleaded that the Plaintiff delivered the said goods to him at London to deliver them over to A. by force of which he took them at London and delivered them over accordingly in such Cases the Defendant may well traverse the place supposed by the Declaration for by his Plea he hath confessed an immediate delivery of the said goods to him by the Plaintiff and the delivery and the taking all at one time and at one place and it had not been a good plea for the Defendant to say that the Plaintiff delivered to him the said goods at London by force of which he took them at Coventry for the possession is confessed by the first delivery of the goods at London and the supposal of the Plaintiff of a taking in Coventry and the justification of the Defendant of a taking by reason of a delivery at London cannot stand together But if the Defendant plead that the Plaintiff gave to him the goods in London by force of which he took them there there he may take traverse to the place supposed by the Declaration for by the gift it is lawful to the Defendant to take the goods in any place So see 19 H. 6. 35. In false Imprisonment supposed in the County of W. the Defendant doth justify as Sheriff of the County of B. by force of a Writ to him directed to attach the Plaintiff and so he attached him and imprisoned him at C. in the County of B. there the Defendant traversed the County supposed by the Declaration for otherwise he doth not meet with the Plaintiff and the authority of the Defendant doth not extend to the County supposed by the Declaration See also to the same purpose 22 E. 4. 39. by Hussy where the difference is taken when justification is by reason of a Warrant to take goods in any place whatsoever and where in a place certain as to the traverse of the Foundation absque hoc quod praedict Collegium fundatum fuit per nomen Decani Capituli Ecclesiae colleglatae Sancti Petri de Ethelborough apud Westm he hath here traversed that which was not alledged for the placing of the last words of the traverse scil apud Westminst in the end of the traverse seems by common construction to be intended thereby that there is no such Colledge at Westm and not that the Colledge was not founded at Westm for then the traverse should be absque hoc quod collegium praedictum fundatum fuit at Westminster per nomen c. But the most proper traverse that the Defendant could have taken in this case had been absque hoc quod Decanus Capitulum Ecclesiae collegiat de Ethelborough was seised for the Corporation mentioned in the Bill and that which is mentioned in the Bar are not all one but differ in this manner scil in the Bill the Dean and Chapter c. in the Bar the Dean Cannons and Bretheren and perhaps there are two such Corporations and then both cannot be seised and therefore upon the seisin of one of them the traverse shall be taken And afterward Iudgment was given for the Queen L. The Queen against the Bishop of London and Scot. Mich. 28 29. Eliz. In the Common Pleas. Quare Impedit 3 Len. 175. THe Queen brought a Quare impedit against the Bishop of London and Scot and the Case was that A. seised of an Advowson in gross holden of the Queen in chief aliened the same by Fine without Licence the Church became void the Conusee presented The Queen without office found brought a Quare impedit the question was if the Queen without office found Office trove should present And it was argued by the whole Court that if the Alienation had been by Deed only that there the Queen without office found should not have had the presentment for upon such an Alienation by matter in fact without Licence no Scire facias should issue without office found of the Alienation Scire facias but upon an Alienation without Licence by matter of Record a Scire facias lyeth before office which was granted by the whole Court And in the last case the Queen shall have the mean profits from the time of the Scire facias returned but in the first case from the time of the office found See for that Stamford Prerogative fol. penult 8 E. 4. 4. It was also moved if the Queen intituled to the presentment as above pardoneth to the Conusee all Alienations without Licence and Intrusions if the estate of the Incumbent be thereby confirmed but the Court would not argue that point but it was adjorned until another day LI. Braybrooks Case Mich. 28 29. Eliz. In the Common Pleas. Pines levyed THe Case of one Braybrook was moved which was Land was given to A. for life the Remainder to B. for life the Remainder to the said Braybrook in Fee B. being in possession levyed a Fine to a stranger sur conusans de droit come ceo c. A. dyed if now Braybrook might enter for the forfeiture was the question And it was agreed by the whole Court that by that Fine the Remainder in Fee is not touched or discontinued Co. 1 Inst 251 b. 252. 2 Forfeiture 9 Co. 104. Post 211 212. 1 Cro. 219. 220. but because B. had done as much as in him lay for the disposing of Fee-simple by the Fine and hath taken that upon him the same amounts to a forfeiture And it was also agreed by Anderson and Periam that if Tenant for life in possession leveyeth a Fine c. if the Lessor doth not enter within five years after he shall be bounden Windham contrary for by him it is in the election of the Lessor to re-enter immediatly for the forfeiture or to expect the death of the Lessee LII Willshalge and Davidges Case Mich. 28 29 Eliz. In the Exchequer Chamber WIllshalge brought Error in the Exchequer Chamber Enâ—r upon the Statute of 27 Eliz. Cap. 8. against Davidge upon a Iudgment given in the â—ings Bench Hill. 28. Eliz. and assigned for Error that where Davidge had heretofore brought Debt against the now Plaintiff and declared upon diverse Contracts scil that he had sold to Willshalge such Merchandizes for so many Portugues and such Merchandizes for so many Ducats which in toto amounted to seven hundred pounds Sterling which sum he demanded scil in Sterling many 2 Cro. 88. 3 Cro. 536. Yel 80. 135. 136. and not in Ducats and Portagues according to the Contract And upon the Declaration the said Willshalge had demurred in Law and the Court
Another Exception was taken to the Writ because here it appears upon the Plaintiffs shewing that Sir Roger Lewknor had three Daughters and that they have all taken Husbands and that they have issue and that one of the said Daughters is dead living her Husband who is not named in the Writ for which cause the Writ shall abate See 22 H. 6. 24 25. But that Exception was also disallowed for as this Case is there is not any reason that the Tenant by the Curtesy should joyn in this Action for no judgment shall be given here that the Plaintiffs shall recover the place wasted for the term is expired as it appeareth by the words of the Writ scil quas tenuerunt and the Tenant by the curtesy is in possession and where Tenant by the curtesie and the Heir joyn in an Action of Wast Tenant for life shall have Locum vastatum and the Heir the damages which see 27 H. 8. 13. As unto the matter of Law upon the Exceptions of Woods and Vnderwoods it was argued by Shuttleworth that the Action of Wast was not well brought against Ford c. for the Assignment made by Shelley to Ford was with an exception of all Woods and Vnderwoods and therefore Shelley remained Tenant and he ought to answer for the Wood and the Vnderwood in the Action of Wast for upon every demise of Lands the Woods there growing are as well demised as the Land it self for so it appeareth by the Writ of Wast in domibus boscis dimissis ad terminum annorum c. which proves that the Trees are parcel of the demise and so may be execepted See Dyer 28 H 8. 19. by Shelley and Baldwin A man leaseth a Manor except Woods and Underwoods the Lessee cuts the Trees an Action of Wast doth not lie against him for the same for the thing in which the Wast is supposed to be committed was not demised c. and therefore the Lessee shall be punished as a Trespassor and not as Farmer Fenner Serjeant contrary and that the Exception of the Woods and Vnderwoods is meerly void for Shelley who assigns his interest with the said Exception hath not any such interest in the Woods and Vnderwoods so as he can make such exception for he had but an ordinary interest in them as Farmer viz. House-boot Hedge-boot c. which interest cannot by any means upon an Assignment be reserved to the Assignor in gross of the estate no more than if one hath common appendant to his Land and he will make a Feoffment of the Land reserving or excepting the common And he who hath the inheritance of the Land hath an absolute property in the Trees but the Lessee hath but a qualified interest and therefore 21 H 6. 46. the Lessor during the term for years may command the Trees to be cut down and 10 H. 7. 3. Lessee for years hath not any interest in the Trees but for the loppings and for the shadow for his Cattle And in the Case cited where Lessee for life and he in the Reversion make a Lease for life unto a stranger and wast is committed Co. 1 Inst 42. 2. and they bring an Action of Wast the Lessee for life shall have the place wasted and he in the Reversion the treble damages for in him was the true and very property of the Trees and therefore the treble damages do belong unto him and not to the Lessee for life who joyneth with him and the reason wherefore the Lessee for life or years shall recover treble damages against a stranger who cuts down any Trees growing upon the Land to him demised is not in respect of any property that the Lessee hath in the Trees cut down but because he is chargable over to his Lessor in an Action of Wast in which he shall render damages in such proportion So see 27 H. 6. Wast 8. A lease for life is made without impeachment of wast a stranger of his own wrong cuts down Trees against whom the Lessee brings an Action of Trespass in such Case he shall not recover treble damages not for the Trees but only for the breaking of the Close and the loppings for he is not chargeable over to his Lessor for the same because that his Lease was made without impeachment of Wast and if the Lessee hath such a slender interest in the Trees where his Lease is without impeachment of wast his interest is less where it is an ordinary lease without any such priviledge And the property which the Lessee for years hath in the Trees in such Case is so appropriated to the possession that it cannot be severed from it Windham and Anderson Iustices were of opinion that the Exception above is meerly void For Ford the Assignee of Shelly is now Termer and Farmer who alone can challenge interest in the Trees against all but the Lessor and Shelley after his Assignment is meerly a stranger The interest of the Lessee and also of his Assignee in the Trees is of necessity and follows the Farm and the Land as the shadow doth the body And by him where Lessee for years by reason of his lease is to have Wind-fals yet he cannot imploy them but to the benefit and profit of his Farm for if he sell them or spend them elsewhere he shall be punished Rhodes and Periam Iustices that the exception is good as the fruits of the Trees Shovelers c. And afterwards the Case was adjudged upon another point in the pleading so as the matter in Law did not come to Iudgment See Saunders Case 41 Eliz. Where Lessee doth assign excepting the Timber Trees it is a void Exception LXIII Gray and Jeffes Case Pasch 29 Eliz. In the Kings Bench. 1 Cro. 55. Action of assault and Batterry IN an Action upon the Case by Gray against Jeffe the Plaintiff declared that where he had placed his Son and Heir apparent with the Defendant to be his Apprentice and to learn of him the Art of a Tailor That the Defendant had so beaten his Son with a Spade that he thereupon became lame by reason of which he could not have so much with his Son in marriage of him as otherwise he might have because the same lameness is a disparagement to his said son And further shewed that he himself might spend twenty pounds per annum in Lands Haulton argued for the Plaintiff The Action Quare filium haeredem cepit abduxit is given to the Father in consideration that the marriage of his Son and Heir doth appertain to him by the Law and here by the Battery the Son is become so same that he is not so commendable to a Marriage as before and if the Father had lost the whole marriage then the Father should have had the Action Quare filium haeredem c. but here he hath not lost the whole marriage but the marriage is lessened by it and therefore he shall have this Action
for that he hath not made his Fresh sute according to the Law for he ought to have begun his Fresh sute within the Hundred where the Robbery was done and it was also objected that the Robbery was done post occasum solis in which Case the Hundreders are not to pursue the Malefactors And Walmsley Serjeant cited a Case out of Bracton Si appellatus se defenderit contra appellantem tota dle usque ad horam in qua Stellae incipiunt apparere recedat quietus de appello and it is not reason to drive the Hundreders to Follow felons at such a time 1 Cro. 270. when for want of light they cannot see them And all the Iustices were clear of opinion that if the Robbery was done in the night time the Inhabitants are not bound to make the pursute And by Rhodes if in a Praecipe quod reddat of Lands the Sheriff summons the Demandant upon the Land in the time of night such a summons is meerly void LXXIII Wiseman and Wisemas Case Pasch 29 Eliz. In the Common Pleas. Intrat Trin 28. Rot. 1458. IN an Action of Debt by Wiseman against Wiseman the Case was Debt 1 And. 160. Owen 140. that one Wiseman was seised of the Lands and by his Will devised 1. I will and bequeath unto my Wife B. acre for the Term of her life the remainder to my Son Thomas in tail Item I will and bequeath unto my Son Thomas Devises all my Lands in D. and also my Lands in S. and also my Lands in V. Also I give and bequeath unto the said Thomas my Son all that mâ— Island or Land enclosed with water which I purchased of the Earl of Essex To have and to hold all the said last before devised premisses unto the said Thomas my Son and the Heirs of his Body The only matter was If the Habendum shall extend to the Island only in which Case Thomas shall have but for life in the Lands in D. S. and V. or unto the Island and also to the Lands in D. S. and V 2 Roll. 60. Roph. 126. in which Case he shall have Fee-tail in the whole And it was argued by Fenner that the Habendum should extend to the Island only as he said the opinion of the Iustices of this Court was in 4 Eliz. in another Case I devise my Manor to D. my eldest Son and also my Land in S. in tail in that Case the entail limited for the Land in S. shall not extend to the 1 Roll. 844. said Manor and of such opinion was Weston Welsh and Dyer Brown contra that the Son hath tail in both But if the words of the devise had been I devise my Manor of D. and my Lands in S. to my Son in tail here the Son had an estate tail in both So it hath been adjudged that if I devise Lands to A. B. and C. successively as they be named the same is good by way of Remainder Walmesley contrary and he relied much upon this that the words of the Habendum are in the plural number 2 Bulst 180. 181. All the last before devised premisses whereas the thing lately devised by the Will was an Island in the singular number which cannot satisfie the Habendum Extent of an Habendum which is in the plural number and therefore to verifie the plural number in the Habendum the Habendum by fit construction shall extend to all the Lands in D. S. and V. and so upon his motion made at another day it was resolved by all the Iustices that the Habendum should extend to all the said Lands and the Habendum should not streighten the Devise to the Island only LXXIV Fullwood and Fullwoods Case Pasch 29 Eliz. In the Common Pleas. Bail renders himself in Court. IN an Action upon the Case the Defendant put in bail to the Court to answer to the Action and now Iudgment being given against him he came into Court and rendred himself and prayed that in discharge of his sureties that the Court would record the rendring of himself which was granted And the Court demanded of the Plaintiff if he would pray execution for the body against the Defendant who said he would not whereupon the Court awarded that the sureties should be discharged and the Rule was entred that the Defendant offered himself in discharge of his sureties and Attornatus Querentis allocatus per curiam c. dixit se nolle c. Ideo consideratum fuit per curiam quod tam praedict defend quam praedict Manucaptores de recognitione praedict denariis in eadem contentis exonerentur LXXV Pasch 29 Eliz. In the Common Pleas. THe Case was He in the Reversion upon a Lease for years makes a Charter of Feoffment to divers persons to the use of himself for life Feoffments and after to the use of his eldest Son in tail and the words of the Charter were Dedi Concessi Barganizavi Feoffavi and he sealed and delivered the deed but no livery of seisin was made and afterwards he came to his Lessee for years and said to him that he had made a Feoffment and shewed also the uses but did not shew to whom the Feoffment was made to whom the Lessee said you have done very well I am glad of it Attornment And if that were a good Attornment was the Question It was said that that was the Case of one Arden And Gent and Manwood were of opinion that the same was no Attornment because it was not made to the Feoffee scil to the Grantee of the Reversion and so it was ruled in this Case for Attornment ought to be to the Grantee himself and not to Cestuy que use 1 Cro. 251. Tythes and where the spiritual court shall have jurisdiction of them LXXVI The Parson of Facknams Case Pasch 29 Eliz. In the Common Pleas. THe Parson of great Facknam brought an Action of Trespass against the Parson of Hannington and the Case was If the Parson of one Parish claim by prescription a portion of Tythes out of the Parish of another if the Spiritual Court shall have the Iurisdiction for the tryal of it And the opinion of the whole Court was clear that it should because that the matter is betwixt two spiritual persons and concerning the right of Tithes As 35 H. 6. 39. I. Vicar of B. brought Trespass for taking away of forty loads of Beans c. The Defendant pleaded that he is Parson of the said Church of B. and the Plaintiff is Vicar c. and before the Trespass c. the Beans were growing in the same Town and severed from the nine parts and he took them as belonging to his said Church and demanded Iudgment of the Court c. The Plaintiff said that he and all his Predecessors Vicars c. time out of mind c. have used to have the Tithes of such a Close c. belonging to his Vicaridge and
Ancestor of the Demandant was pleaded in Bar by the name of W the Demandant in avoidance of it would have said that the name of his Father was R. to have avoided the Fine but to that he was not received And 3 E. 3. 32. scil Averment 42. In a Formedon the Tenant pleaded Ne dona pas The Demandant by Replication said That a Fine was levied of the same Lands between the Father of the Demandant and one T. by which Fine the Father of the Demandant did acknowledge to T. the Lands come ceo c. and the said T. gave by the said Fine to the Father of the Demandant the Land in tail Where it is said by Stone that since the gift is proved by as high a Record a man shall not aver against such matter in avoidance of the said Fine c. and yet the party against whom it was was a stranger to the Fine And see 38 E. 3. 7. The Lord shall not be received against a Fine levied by his Tenant to aver the dying seised of his Tenant in his Homage And as to the Issue in tail he conceived that the Averment doth not lie for him for the Issue in tail is as much privy as the Heir of a Tenant in Fee-simple And see 33 E. 3. scil Estoppel 280. In a Formedon the Tenant voucheth the Demandant Counter-pleaded that the Vouchee nor any of his Ancestors had any thing in the Land in demand after the seisin c. to which the Tenant said that to that the Demandant should not be received for the Father of the Demandant after the gift levied a Fine to the Ancestor of the Vouchee of the said Land in demand sur conusans de droit come ceo c. and the same was holden a good bar to the Counter-plea And it was said by the Iustices That although the Statute of West 2. of Donis conditionalibus doth not avoid the Fine as to the fore-closing of the Issue in tail of his Formedon yet it remaineth in force as to the restraining of the heir in tail to aver a thing against the Fine as well as against the heir in Fee-simple and in all Cases where he against whom a Fine is pleaded claims by him who levieth the Fine he shall not have the same Averment but where he claims by a stranger to the Fine there he shall have it well enough see 33 H. 6. 18. If my Father Tenant in tail or in Fee grant the Land by Fine and afterwards I make Title to the same Land by the same Ancestor and the Fine is pleaded against me I shall not be received to say that those who were parties to the Fine had not any thing at the time of the Fine levied but such a one an estranger whose estate c. but it is a good Plea for me to say that after the Fine such a one was seised in Fee and did enfeoff me vid. 22 E 3. 17. before 33 E. 3. Estoppel 280. And Dyer 16 Eliz. 334. The Father is Tenant for life the Remainder in Fee to his Son and Heir levieth a Fine to a stranger sur conusans de droit come ceo c. with warranty and takes back an estate by the same Fine in that case it was holden that the heir should not be received to aver continuance of the possession and seisin either ante finem tempore finis or post finem in the Tenant for life for it is a Feoffment upon Record and makes a discontinuance of the Remainder and Reversion The only Book in our Law to maintain the Averment is 12 E. 4. 15. by Brian who although he was a reverend Iudge in his time yet he erred in this that if Tenant in tail be disseised and levieth a Fine unto a stranger sur conusans de droit come ceo c. that the Issue in tail may well say that partes ad finem nihil habuerunt but Coke and Lit. were clear of a contrary opinion and see in the same year fol. 12 by Fairfax and Littleton that if Tenant in tail where the Remainder is over to a stranger levieth a Fine sur conusans dodroit come ceo c. he in the Remainder may aver continuance of seisin against that Fine for he is not party nor heir to the party c. And the Stat. of 4 H. 7. goes strongly to extort such Averment out of the mouth of the Issue in tail for the words concerning the same point are saving to every person or persons not party nor privy to the said Fine their exception to avoid the said Fine by that that those which were parties to the said Fine nor any of them had ought in the Land at the time of the said Fine levied And it is clear that the Issue in tail is privy to his Ancestor whose heir to the tail he is which see agreed 19 H. 8. 6. 7. And he vouched the Case of one Stamford late adjudged Land was given to the eldest Son in tail the Remainder to the Father in tail the eldest Son levied a Fine sur conusans de droit come ceo c. and died without Issue in the life of his Father and afterwards the Father died the second Son shall inherit but if the eldest Son had survived the Father and afterwards died without Issue the second Son should have been barred Periam to the same intent It should be very dangerous to the Inheritances of the Subjects to admit of such Averments and by such means Fines which should be of great force and effect should be much weakned and he put many Cases to the same purpose as were put before by Rhodes Iustice and he shewed how that Fines and the power of them were much weakned by the Statute of non-claim whereof followed as the preface of the Statute of 4 H. 7. observeth the Vniversal trouble of the Kings Subjects and therefore by the said Statute of 4 H. 7. Fines for the good and safety of the Subjects were restored to their former Grandure and authority which should be construed by us who are Iudges strongly and liberally for the quiet and establishment of present possessions and for the barring and extinguishing of former rights and so did the Iudges our Predecessors which see in the Argument of the said Case between Stowel and the Lord Zouch So see such liberal construction 19 Eliz. Dyer 351. Where if Land be given to Husband and Wife in special tail and the Husband alone levieth a Fine and dieth having Issue the Issue is barred And it hath lately been adjudged by the advice of all the Iudges of England upon the Statute of 1 Ma. viz. All Fines levied whereupon Proclamations shall not be dayly made by reason of Adjournment of any Term shall be of as good force and strength to all intents and purposes as if such Term had been holden and kept from the beginning to the end thereof and not adjourned and the Proclamations shall be made in the following
petit quod inquiratur per patriam praedict Brett similiter It was moved that the parties should replead for this matter upon which they are at Issue scil the appearance is not triable by Iury but by the Record And the Court was clear of opinion that the parties should replead for the cause aforesaid And it was moved by the Lord Anderson that if A. be bound to appear in the Kings Bench at such a day and A. at the said days goe to the Court but there no process is returned then the party may go to one of the chief Clerks of the Court and pray him to take a Note of his appearance And by Nelson we have an acient form of entry of such Appearance in such Cases Ad hunc diem venit I. S. propter indemnitatem suam Manucaptorum suorum petit quod comparentia sua in Curia hic recordetur And see for the same 38 H. 6. 17. And afterwards the Lord Anderson inspecto Rotulo ex assensu sociorum awarded a Repleader And so by Nelson it hath been done oftentimes here before and put in ure The same Law is where at the day of appearance no Court is holden or the Iustices do not come c. he who was bound to appear ought to have an Appearance recorded in such manner as it may be and if the other party pleadeth Nul tiel Record it behoveth that the Defendant have the Record ready at his peril for this Court cannot write to the Iustices of the Kings Bench for to certifie a Record hither CXV Baxter and Bales Case Mich. 29 30 Eliz. In the Common Pleas. Debt not extinct by administration BAxter brought Debt upon a Bond as Executor of I. against Bale who pleaded that the Plaintiff after the death of the Testator was cited to appear before the Ordinary or his Commissary to prove the Will of the said I. and at the day of his appearance he made default upon which the Ordinary committed Letters of Administration to the Defendant by force of which he did administer so the debt is extinct c. but the whole Court was clear of opinion that the debt was not extinct for now by the probate of the Will the administration is defeated and although the Executor made default at the day which he had by the Citation before the Ordinary yet thereby he is not absolutely debarred but that he may resort to the proving of the Will whensoever he pleaseth But if he had appeared and renounced the Executorship it had been otherwise and the debt is not extinct by the Administration in the mean time CXVI Mich. 29 30 Eliz. In the Common Pleas. IN a Franchise the parties are at Issue upon a matter triable out of the Franchise And it was moved if now the Record should be sent into the Common Pleas and there tryed and after trial sent back into the Franchise Which Periam and Anderson utterly denied and by Periam there is no reason that we should be their Ministers to try Issues joyned before them And it is not like 2 Len. 37. where in a Liberty or Franchise a Forrein Voucher is to warrant Lands in such cases we shall determine the Warranty but that is by a special Statute of Glocester cap. 12. And Nelson Prothonotary said that such an Issue was tryed here of late Quod nota CXVII The Earl of Arundel and the Lord Dacres Case Mich. 29 30 Eliz. At Serjeants Inne PHilip Earl of Arundel and the Lord William Howard his Brother marryed the Daughters and Co-heirs of the late Lord Dacres And now came Francis Lord Dacres as heir male of the said Family and claimed the Inheritance c. And after long sute betwixt both parties they submitted themselves to the award of Gilbert Lord Talbot and of Arthur Lord Grey of Wilton and Windham and Periam Iustices And before them at Serjeants Inne the matter was well debated by the Council learned on both sides and as unto Greistock Lands parcel of the Lands in question the Case was That Tenant in tail makes a Feoffment in fee unto the use of himself for his life the Remainder in tail to his eldest Son with divers Remainders over with a Proviso that if any of the Entailees do any act to interrupt the course of any entail limited by the said Conveyance that then the use limited to such person should cease and go to him who is next inheritable And afterwards Tenant in tail dieth his eldest Son to whom the use in tail was first limited entreth and doth an Act against the said Proviso and yet held himself in and made Leases the Lessees enter the Lessor dieth seised his Heir being within age and in ward to the Queen It was holden by Shutleworth Serjeant Yelverton Godfrey Owen and Coke who were of Council with the Heirs general of the Lord Dacres that here is a Remitter for by this Act against the Proviso the use Remitter and so the possession doth accrue to the enfant Son of him to whom the use in tail was limited by the Tenant in tail Then when the Tenant in tail after his said Feoffment holds himself in this is a disseissin for a Tenancy by sufferance cannot be after the cesser of an estate of Inheritance But admit that he be but a Tenant at sufferance Hâ—b 255. Dy. 54. yet when he makes Leases for years the same is clearly a disseisin and then upon the whole matter a Remitter and although the Enfant taketh by the Statute yet the right of the tail descending to him afterwards by the death of his Father doth remit him as if Tenant in tail maketh a Feoffment in fee to the use of himself for life the Remainder in tail to his eldest Son inheritable to the first intail notwithstanding that the eldest Son takes his Remainder by the Statute and so be in â—â— force thereof yet when by the death of his Father the right of the Entail descends to him he is remitted CXVIII Butler and Ayres Case Mich. 29 30 Eliz. In the Common Pleas. Dower BUtler and his Wife brought a Writ of Dower against Thomas Ayre Son and Heir of Bartholmew Ayre first Husband of the said Margaret Wife of the Plaintiff and demanded Dower of Lands in A. and B the Tenant pleaded never seised que Dower and the Iury found that the said Bartholmew was seised during the Coverture de omnibus tenementis infra script preterquam the Tenements in sic ut dicta Margareta dotari potuit Exception was taken to this Verdict because that this preterquam c. doth confound the Verdict To which it was said by the Court that the preterquam is idle and surplusage for it is of another thing than that which is in demand and the seisin of the first Husband of Lands in A. and B. is confessed and the preterquam works nothing Another matter was objected because here the Iury have assessed damages
before And as to the President cited 7 Eliz. the same is not to the purpose for the second Husband was a stranger to the Fine for it would be absurd to reverse the Fine as against him Egerton Solicitor General Presidents are not so holy quod violari non debeant as to be rules to other Iudges in perpetuum and I conceive that the Fine shall be reversed as to the Wife only for the Fine is but a Conveyance and the Husband may lawfully convey the Land of his Wife for his life and if the Husband alone had levyed the Fine the same had bounden the Wife during his life If a woman Lessee for life taketh to Husband him in the Reversion and they joyn in a Fine the Fine shall stand as to the Inheritance of the Husband but shall be reversed as to the Interest of the Wife Coke it shall be intended here all the Interest and estate in the Land to be in the Wife as 20 H. 7. 1. Where the Husband and Wife are vouched it shall be intended by reason of the Warranty of the Wife only and so the Counter-plea shall be of the seisin of the Wife and her Ancestors Wray when the Husband and Wife joyn in the Fine it shall be presumed the Inheritance of the Wife and if it be otherwise it ought to be specially shewed and as to that which hath been said that if the Husband alone had levyed a Fine it should have bounden the Wife during the life of the Husband the same is true but such Fine is but a discontinuance but the right continueth in the Wife but when the Husband and Wife joyn in the Fine all passeth out of her and if the Fine in such case for the Inheritance shall be reversed in all to whom belongs the Free-hold to whom shall he be attendant Gawdy 12 H. 7. 1. In a Praecipe quod reddat against three they vouch severally the Voucher was not received and yet they might have several Causes of Voucher but the Law presumes they are Ioynt-tenants and have a joynt cause of Voucher if the contrary be not shewed And afterwards Iudgment was given quod finis predict reversetur and Wray said he had conferred with many of the other Iustices who were of the same opinion Gawdy the Fine shall be reversed in all for this is an Error in Law of the Court F. B. 21. D. For by this Fine the Husband giveth nothing divided from the estate of the Wife but all passeth from the Wife and therefore all shall be reversed and if the Fine should be reversed as to the Wife only then the Fine levyed now by the Husband alone is a discontinuance by which the Wife by the common Law shall be put to her Cui in vita and that is not reason Also we cannot by this Reversal make the Conusee to have a particular estate during the life of the Wife And therefore the Fine is to be reversed for the whole and as void for the whole to the Conusee CLVIII Cage and Paxlins Case Trin. 30 Eliz. In the Kings Bench. 1 Cro. 125. 3 Len. 16. DAniel Cage brought an Action of Trespass against Thomas Paxlin for Trespass done in a Close of Wood called the Frith-Close and in the Park and for taking of certain Loads of Wood the Defendant pleaded that the Earl of Oxford was seised of the Mannor of W. of which the place where c. is parcel and leased the same to J. S. for years excepting all Woods great Trees Timber-trees and Vnderwoods c. And covenanted with the Lessee and his Assigns that he might take Hedg-boot and Fire-boot super dicta premissa and shewed further that the said I. S. assigned his Interest unto the Defendant and that he came to the said Close called the Frifth-Close Lease of Lands excepting the wood and cut the Wood there for Fire-boot as it was lawful for him to do c. And note that after the Lease aforesaid the said Earl had assured the Inheritance thereof to Cage the Plaintiff And it was argued by Godfrey that the Lessee cannot take Fire-boot in the said Close for the wood c. is excepted and was never demised and by the exception of the wood the soil thereof is excepted See 46 E. 3. 22. A. leased for life certain Lands reserving the great wood by that the soil also is reserved vi 33 H. 8. Br. Reservation 39 28 H. 8. 13. 3 Len. 16. And by the words of the Covenant the intent of the Lessor appeareth that the Lessee shall have his Fire-boot out of the residue of the Lands demised for praemissa here is equivalent with praedimissa And he cited the Case moved by Mountaine cheif Iustice 4 E. 6. in Plowden in the Case betwixt Dive and Manningham 66. A. leaseth unto B. a Manor for years excepting a Close parcel of it rendring a Rent and the Lessee is bounden to perform all Grants Covenants and Agreements contenta expressa aut recitata in the Indenture if the Lessee disturb the Lessor upon his occupation of the Close excepted he hath forfeited his Obligation c. But our Case is not like to that Post 122. And if I let the Manor of D. for years except Green-meadow and afterwards I covenant that the Lessee shall enjoy the Premisses the same doth not extend to Green-meadow Snagg Serjeant to the contrary and by him praemissa are not restrained to praedimissa but to all the Premisses put in the former part of the Indenture of Demise therefore the Lesse shall have Fire-boot in the one and the other 2 Roll. 455. 2 Cro. 524. Post 122. and he put a difference betwixt all Woods excepted and all woods growing excepted for in the one case the soil passeth in the other not And as to the Case cited before in Plowden 66. that is true for exception is an Agreement And he said that by that exception the soil it self is excepted and these woods which are named by name of woods contrary where a Close containeth part in woods and part in Pasture And by the exception of Timber-trees and Vnder woods all the other woods are excepted but not the soil As if a man grant all his Lands in D. Land Meadow Pasture and woods thereby passeth by exception of this Close of wood the soil also is excepted and he conceived that although all the woods be excepted yet by the Covenant an Interest passeth to the Lessee Select Case 155 Hob. 173. Dy. 19 198 314. 21 H. 7 31. More 23. 1 Roll. 939. so as he may take Fire-boot without being put to his Action of Covenant As 21 H. 7. 30. A. leaseth unto B. for life and Covenants in the Indenture of lease that he shall be dispunished of Wast although the same be penned by way of Covenant yet it is a good matter of Bar being all by one Deed And afterwards Iudgment was given for the Plaintiff as to that
otherwise it should be idle And afterwards Iudgment was given against the Queen CLXIII Piers and Leversuchs Case In Ejectione firmae Trin. 30 Eliz. In the Kings Bench. IT was found by special verdict that one Robert Leversuch Grand-father of the Defendant was Tenant in tail of certain Lands whereof c. and made a Lease for years to one Pur. who assigned it over to P. father of the Plaintiff Robert Leversuch died W. his Son and Heir entred upon P. who re-entred W. demised without other words the Land to the said 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 therein to enter and deliver seisin accordingly P. died before that the Livery was executed and afterwards the Attorney made livery to Joan. W. died Ed. his Son and Heir entred upon the Wife she re-entred and leased to the Plaintiff who upon an ouster brought the Action Heale 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 of W. Leversuch the issue in tail was taken away 3 Cro. 222. Cook contrary P. by his entry was not a disseisor but at the Election of W. for when P. accepted such a deed from W. it appeareth 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 and it was the Case of Shipwith Grand-father Tenant in tail Father and Son The Grand-father died the Father entred and paid the Rent to the Lessor and died in possession and adjudged that it was not any descent for the paying of the Rent doth explain by what title he entred and so he shall not be a Disseisor but at the Election of another CLXIV Severn and Clerks Case Trin. 30 Eliz. In the Kings Bench. â—ts THe Case was that A. by his Deed Poll recited That whereas he was possessed of certain Lands for years of a certain Term By good and lawful conveyance he assigned the same to I. S. with divers Covenants Articles and Agreements in the said deed contained which are or ought to be performed on his part It was moved if this recital whereas he was be an Article or Agreement within the meaning of the condition of the said Obligation which was given to perform c. Gawdy conceived that it is an agreement For in such case I agree that I am possessed of it for every thing contained in the deed is an Agreement and not only that which I am bound to perform As if I recite by my deed that I am possessed of such an interest in certain Land and assign it over by the same deed and thereby covenant to perform all Agreements in the deed if I be not possessed of such Interest the covenant is broken And it was moved if that recital be within these words of the condition which are or ought to be performed on my part And some were of opinion that it is not within those words for that extends only in futurum but this recital is of a thing past or at the least present Recital 2 Cro. 281. Yyl. 206. Clench Recital of it self is nothing but being joyned and considered with the rest of the deed it is material as here for against this recital he cannot say that he hath not any thing in the Term. And at the length it was clearly resolved that if the party had not that Interest by a good and lawful conveyance the Obligation was forfeited CLXV Page and Jourdens Case Trin. 30. Eliz. In the Kings Bench. IN Trepass betwixt Page and Jourden the case was A Woman Tenant in tail took a Husband who made a Feoffment in Fee and died The Wife without any Entry made a Lease for years It was moved that the making of this Lease is an Entry in Law. As if A. make a Lease for years of the Land of B. who enters by force of that Lease A general entry amounts to a disseisin now the Lessor without any Entry is a Disseisor And it was resolved that by that Leasâ— the Free-hold is not reduced without an Entry CLXVI Havithlome and Harvies Case Trin. 30. Eliz. In the Kings Bench. Action upon the Statute of 5 Eliz. cap. 9. 1 Cro. 130. 3 Cro. Goodwin vers West HAvithlome brought an Action upon the Statute of 5 Eliz. cap. 9. against Harvy and his Wife for the penalty of ten pounds given by the said Statute against him who was served with process ad testificandum c. and doth not appear not having any impediment c. and shewed that process was served upon the Defendants Wife and sufficient charges having regard to her degree and the distance of the place c. tendred to her and yet she did not appear And it was found for the Plaintiff It was moved in arrest of Iudgment that the Declaration is not good because the Plaintiff in setting forth that he was damaged for the not appearance of the Wife according to the process hath not shewed how damnified Also it was moved that a Feme Covert is not within the said Statute for no mention is made of a Feme Covert and therefore upon the Statute of West 2. cap. 25. If a Feme Covert fail of her Record she shall not be holden disseisseress nor imprisoned Also here the Declaration is that the Plaintiff tendered the charges to the Wife where he ought to have tendered the same to the Husband To these three Exceptions it was answered 1. That although the party be not at all damnified yet the penalty is forfeited 2. Feme Coverts are within the said Statute otherwise it should be a great mischeif for it might be that she might be the only witness And Feme Coverts if they had not been expresly excepted had been within the Statute of 4 H. 7. of Fines 3. The wife ought to appear therefore the tender ought to be to her And afterwards Iudgment was given for the Plaintiff CLXVII Dellaby and Hassels Case Pasch 30 Eliz. In the Kings Bench. IN an Action upon the Case 1 Cro. 132. the Plaintiff declared that the Defendant in consideration that he had retained the Plaintiff to go from London to Paris to Merchandize diverse goods to the profit of the Defendant promised to give to him so much as should content him and also to give him all and every sum of money which he should expend there in his Affairs and further declared that he was contented to have twenty-pounds for his labour which the Defendant refused to pay And exception was taken to the Declaration because there is
the limitation for the life of the Wife cannot extend to both And as to the Book of 24 H. 8. Br. Forfeiture 87. 3 Cro. 167 168. Tenant for life aliens in Fee to B. Habendum sibi haeredibus suis for Term of the life of the Tenant for life the same is not a forfeiture for the whole is but the limitation of the estate And afterwards it was adjudged that it was a forfeiture Gawdy continuing in his former opinion And VVray said that he had conferred with the other Iudges of their House and they all held clearly that it is a forfeiture CLXXII Toft and Tompkins Case Trin. 30 Eliz. In the Kings Bench. Rot. 528. UPon a special Verdict the case was that the Grand-father Tenant for life the Remainder to the Father in tail Discontinuance 1 Cro. 135. that the Grand-father made a Feoffment in fee to the use of himself for life the Remainder to the Father in Fee And afterwards they both came upon the Land and made a Feoffment to Tompkins the Defendant Coke There is not any discontinuance upon this matter for the Father might well wave the advantage of the forfeiture committed by the Grand-father then when the Father joyns with the Grand-father in a Feoffment the same declares that he came upon the Land without intent to enter for a forfeiture It was one Waynmans Case adjudged in the common Pleas where the Disseissee cometh upon the Land to deliver a Release to the Disseissor that the same is no Entry to revest the Land in the Disseissee Then here it is the Livery of the Tenant for life and the grant of him in the Remainder and he in the Remainder here was never seised by force of the tail and so no discontinuance Godfrey Here is a Remitter by the Entry and afterwards a discontinuance for by the Entry of both the Law shall adjudge the possession in him who hath right c. Gawdy This is a discontinuance for when the Father entreth ut supra he shall be adjudged in by the forfeiture and then he hath gained a possession and so a discontinuance for both cannot have the possession Clench The intent of him in the Remainder when he entred was to joyn with the Grand-father and when his intent appeareth that the estate of the Grand-father and his own also shall passe that doth declare that he would not enter for the forfeiture Shute agreed with Gawdy CLXXIII Broake and Doughties Case Hill. 31 Eliz. Rot. 798. Trin. 30. Eliz. In the Kings Bench. AN Action upon the Case for words Action upon the Case for words 1 Cro. 135. viz. Thou wast forsworn in the Court of Requests and I will make thee stand upon a Stage for it It was found for the Plaintiff It was moved in arrest of Iudgment that the Action will not lye for these words for he doth not say that he was there forsworn as Defendant or witness And Trin. 28 Eliz. betwixt Hern and Hex thou wast forsworn in the Court of Whitchurch And Iudgment given against the Plaintiff for the words are not Actionable and as to the residue of the words I will make thee stand upon the Stage for it they are not Actionable as it was adjudged between Rylie and Trowgood If thou hadst Iustice thou hadst stood on the Pillory and Iudgment was given against the Plaintiff Daniel contrary thou wast forsworn before my Lord chief Iustice in an Evidence these words are Actionable for that is perjury upon the matter and between Foster and Thorne T. 23 Eliz. Rot. 882. Thou wast falsly forsworn in the Star-Chamber the Plaintiff had Iudgment for it shall be intended that the Plaintiff was Defendant or a Deponent there And yet the words in the Declaration are not in the Court of Star-Chamber Wray Thou art worthy to stand upon the Pillory are not Actionable for it is but an implication but in the words in the Case at the Bar there is a vehement intendment that his Oath was in the quality of a Defendant or Deponent which Gawdy granted In the Case 28 Eliz. Thou wast forsworn in Whit-Church Court there the words are not actionable for that Court is not known to you as Iudges And it may be it is but a great House or Mansion house called Whit-church Court But here in the principal case it cannot be meant but a Court of Iustice and before the Iudges there juridice and the subsequent words sound so much I will make thee stand upon a Stage for it And afterwards Iudgment was given for the Plaintiff CLXXIV Gatefould and Penns Case Trin. 30 Eliz. In the Kings Bench. Prescription for tythes 1 Cro. 136. 3 Len. 203 265. Antea 94. GAtefould Parson of North-linne libelled against Penne in the spiritual Court for tythes in Kind of certain pastures The Defendant to have prohibition doth surmise that he is Inhabitant of South-linne and that time out of mind c. every Inhabitant of South-linne having pastures in North-linne hath paid tythes in Kind for them unto the Vicars of South-linne where he is not resident and the Vicar hath also time out of mind payed to the Parson of North-linne for the time being two pence for every acre Lewis This surmise is not sufficient to have a prohibition for upon that matter Modus Decimandi shall never come in question but only the right of tythes if they belong to the Parson of North-linne or to the Vicar of South-linne and he might have pleaded this matter in the spiritual Court because it toucheth the right of tythes as it was certified in the Case of Bashly by the Doctors of the Civil Law. Gawdy This prescription doth stand with reason for such benefit hath the Parson of North-linne if any Inhabitant there hath any Pastures in South-linne And afterwards the whole Court was against the prohibition for Modus Decimandi shall never come in debate upon this matter but who shall have the tythes the Vicar of South-linne or the Parson of North-linne and also the prescription is not reasonable CLXXV Gomersal and Bishops Case Hill. 31 Eliz. Rot. 175. Trin. 30 Eliz. In the Kings Bench. 1 Cro. 136. BIshop libelled in the Spiritual Court for tythe Hay the Plaintiff Gomersal made a surmise that there was an agreement betwixt the said parties and for the yearly sum of seven shillings to be paid by Gomersal unto Bishop Bishop faithfully promised to Gomersal that Gomersal should have the tythes of the said Land during his life And upon an Attachment upon a Prohibition Gomersal declared that for the said annual sum Bishop leased to the Plaintiff the said tythes for his life And upon the Declaration Bishop did demur in Law for the variance between the Surmise and the Declaration for in the Surmise a promise is supposed for which Gomersal might have an Action upon the Case and in the Declaration a Lease But note that the Surmise was not entred in the Roll but was recorded
plead it specially but as our case is here is no Act to be done but a permittance as abovesaid and it is in the Negative not a disturbance in which case permisit is a good plea and then it shall come on the other side on the Plaintiffs part to shew in what Lands the Defendant non permisit Which difference see agreed 17 E. 4. 26. by the whole Court. And such was the opinion of the whole Court in the principal case 1 Co. 127. Another Exception was taken to it that the Defendant had covenanted that his brother Edward should pay to the Plaintiff the said Rent To which the Defendant pleaded that his said brother had payed to the Platntiff before the said Feast of Michaelmas in full satisfaction of the said Rent three shillings and that was holden a good plea and upon the matter the Covenant well performed for there is not any Rent in this Case for here is not any Lease and therefore not any Rent For if A. covenant with B. that C. shall have his Land for so many years rendring such a Rent 1 Roll. 847. 1 Cro. 173. Owen 97. here is not any Lease and therefore neither Rent But if A. had covenanted with C. himself it had been otherwise because it is betwixt the same parties And if the Lessee covenant to pay his Rent to the Lessor and he payeth it before the day the same is not any performance of the Covenant causa patet contrary of a sum in gross Another Covenant was that the said Humphry solveret ex parte dicti Edwardi 20 l. to which the Defendant pleaded that he had paid ex parte dicti Humfridi 20 l. and that defect was holden incureable and therefore the Plaintiff had Iudgment to recover CLXXXVII Geslin and Warburtons Case Mich. 30 Eliz. In the Common Pleas. 1 Cro. 128. IN an Ejectione firmae by Joan Geslin against Hen. Warburton and Sebastian Crispe of Lands in Dickilborough in the County of Norf. Mich. 30. 31 Eliz. rot 333. upon the general Issue the Iury found a special verdict that before the Trespass supposed one Martin Frenze was seised of the Lands of which the Action was brought in tail to him and his Heirs males of his body so seised suffered a common Recovery to his own use Devises and afterwards devised the same in this manner I give my said Land to Margaret my Wife until such time as Prudence my Daughter shall accomplish the age of nineteen years the Reversion to the said Prudence my Daughter and to the Heirs of her body Lawfully begotten upon condition that she the said Prudence shall pay unto my said Wife yearly during her life in recompence of her Dower of and in all my Lands 12 pounds and if default of payment be made then I will that my said Wife shall enter and have all my Lands during her life c. the Remainder ut supra the Remainder to John Frenze in tail c. Martin Frenze died Margaret entred the said Prudence being within the age of fourteen years Margaret took to Husband one of the Defendants John Frenze being Heir male to the former tail brought a Writ of Error upon the said Recovery and assigned Error because the Writ of Entry upon which the Recovery was had was Praecipe quod reddat unum Messuag and twenty acras prati in Dickelborough Linford Hamblets without naming any Town And thereupon the Iudgment was reversed And it was further found that in the said Writ of Error and the process upon it Hutt 106. 2 Cro. 574. 3 Cro. 196. no Writ of Scire facias issued to warn dictam Prudentiam ten existentem liberi ten praemissorum ad ostendendam quid haberet vel dicere sciret quare Judicium praedict non reversaretur The Iury further found that the said Margaret depending the said Writ of Error was possessed virtute Testamenti ultimae voluntatis dict Martini reversione inde expectant dictae Prudentiae pro ut lex postulat And they further found Error that six pound of the said tewlve pounds were unpaid to the said Margaret at the Feast c. and they found that the said John Frenze praetextu Judicii sic reversat entred into the premisses as Heir male ut supra And so seised a Fine was levyed betwixt John Frenze Plaintiff and one Edward Tindal Owen 157. Dyer 321. 1 Cro. 471. 739. and the said Prudence his Wife Deforceants and that was to the use of the said John Frenze And that afterwards Humphry Warburton and the said Margaret his Wife brought a Writ of Dower against the said John Frenze Edw. Tindal and Prudence his Wife of the said Lands The said Edward and Prudence made default and the Demandants counted against the said Frenze and demanded against him the moity of the third part of the said Lands To which the said Frenze pleaded that the default of the said Edward and Prudence idem John Frenze nomine non debet quia he said that he the said John was sole seised of the Lands aforesaid at the time of the Writ brought c. and pleaded in Bar and it was found against the said John and Iudgment given for the Demandants of the third part of the whole Land and seisin accordingly And that afterwards 17 Eliz. the said Frenze levyed the Fine to the said Tindal to the use of the said Tindal and his Heirs And they found that after the said Feast the said Henry Warburton and Margaret his Wife came to the Messuage aforesaid half an hour before Sun-set of the said day and there did demand the Debt of the said twelve pounds Dower to the said Margaret by the said Martin Frenze devised to be paid unto them and there remained till after Sun-set of the said day demanding the Rent aforesaid and that neither the said Tindal nor any other was there ready to pay the same And first it was moved if the said yearly sum of twelve pounds appointed to be paid to the said Margaret were a Rent or but a sum in gross And the opinion of the Court was that it was a Rent and so it might be fitly collected out of the whole Will where it is said that Prudence his Daughter should have the Land and that she should pay yearly to Margaret twelve pounds in recompence of her Dower c. But if it be not a Rent but a sum in gross it is not much material to the end of the case For put case it be a Rent the same not being pleaded in Bar the Dower is well recovered and then when default of payment is made if the Wife of the Devisor shall have the whole was the Question And the Court was clear of opinion that by the suit and Iudgment in the Writ of Dower the Wife of the Devisor had lost all the benefit which was to come to her by the devise For the said Rent was devised to her in recompence of
the Plaintiff and thereupon Iudgment was given for the Plaintiff CCV Read and Nashes Case Trin. 31. Eliz. In the Kings Bench. IN an action of Trespass by Read and his Wife against Nash for entring into a house called the Dayry-house upon Not guilty pleaded The Iury found this special matter Sir Richard Gresham Knight was seised in Fee of the Mannours of I. and S. and of diverse other Lands mentioned in his Will and 3 Edw. 6. devised the same to Sir Thomas Gresham his Son for life the Remainder to the first son of the said Sir Thomas Gresham in tail the Remainder to the second son c. the Remainder to the third son c. The Remainder to Sir John Gresham his brother Proviso That if his Son go about or made any Alienations or discontinuance c. whereby the premisses cannot remain descend and come in the form as was appointed by the said Will otherwise than for Ioyntures for any of their Wives for her life only or leases for 21. years whereupon the old and accustomed Rent shall be reserved That then such person shall forfeit his estate Sir John Gresham dyed Sir Thomas Gresham his son built a new House upon the Land and 4 Mariae leased to Bellingford for one and twenty years rendring the antient Rent And afterwards 2 Eliz. he levyed a fine of the said Manours and of all his Lands and 5 Eliz. he made a Iointure to his Wife in this manner sci He covenanted with certain persons to stand seised to the use of himself and his Wife for their lives and afterwards to the use of his Right Heirs and afterwards 18 Eliz. he leased unto Read and his wife for one and twenty years to begin presently which was a year before the expiration of the said Lease made unto Bellingford which Lease being expired Read entred It was argued by Cook That here upon the words contained in the Proviso Sir Thomas had power and authority not being but Tenant for life to make a Lease for years or Iointure and that upon implication of the Will which ought to be taken construed according to the intent of the parties for his meaning was to give a power as well as an estate otherwise the word otherwise should be void and it is to be observed That the parties interessed in the said conveyance were Knights and it is not very likely That the said Sir Richard Gresham did intend that they should keep the Lands in their own manurance as Husbandmen but set the same to Farm for Rent And it is great Reason although he willeâ— that the order of his Inheritance should be preserved yet to make a Provision for Iointure and it is great reason and cause to his family to enable and make them capable of great Matches which should be a strengthning to his posterity which could not be without great Iointures wherefore I conceive it reasonable to construe it so That here they have power to make Iointures for their Wives It hath been said That no grant can be taken by implication as 12 E. 3. Tit. Avow 77. Land was given to I. and A. his wife and to the heirs of the body of I. begotten and if I. A. dy without heir of their bodies betwixt them begotten that then it remain to the right heirs of I. and it was holden that the second clause did not give an estate tail to the wife by implication being in a grant but otherwise it is in Case of a devise as 13 H. 7. 17. and there is no difference as some conceive when the devise is to the heir and when to a stranger but these cases concern matter of Interest but our case concerns an Authority And admit that Sir Thomas hath power and authority to make this lease Then we are to consider if the Iointure be good for if it be Then being made before the Lease Use cannot rise out of a power it shall take effect before and the woman Iointress is found to be alive But I conceive That this Iointure is void and then the Lease shall stand for an use cannot rise out of a power but may rise out of an estate of the Testator and out of his Will 19 H. 6. A man deviseth That his Executors shall sell his reversion and they sell by Word it is a good Sale for now the Reversion passeth by the Will. But an use cannot be raised out of an use and a man cannot bargain and sell Land to another use than of the Bargainee And it is like unto the case of 10 E. 4 5. The disseisee doth release unto the disseisor rendring Rent the render is void for a rent cannot issue out of a right so an use cannot be out of a Release by the disseisee for such release to such purpose shall not enure as an Entry and Feoffment Also here after that conveyance Sir Thomas hath built and erected a New house and no new Rent is reserved upon it and therefore here it is not the ancient Rent for part of the sum is going out of the new house But as to that It was said by the Iustices do not speak to that for it appears that the Rent is well enough reserved Another matter was moved for that That a year before the Expiration of the Lease made to Billington this Lease was made to Reâ—d for 21 years to begin presently from the date of it although by the same authority he cannot make Leases in Reversion for then he might charge the Inheritance in infinitum But yet such a Lease as here is he might make well enough for this Lease is to begin presently and so no charge to him in the Reversion as in the Case betwixt Fox and Colliers upon the Statute of 1 Eliz. A Bishop makes a Lease for three years before the Expiration of a former Lease to begin presently It was holden a good Lease to bind the Successor for the Inheritance of the Bishop is not charged above one and twenty years in toto But if a Bishop make a Lease for years and afterwards makes a Lease for three lives the same is not good 8 Eliz. Dy. 246. Tenant in tail leaseth to begin at Michaelmas next ensuing for twenty years it is a good Lease by the Statute of 32 H. 8. so is a lease for 10 years and after for eleven years and yet the Statutes are in the Negative but this power in our Case is in the Affirmative and the Inheritance is not charged in the whole with more than one and twenty years CCVI. Kinnersly and Smarts Case Trin. 31 Eliz. In the Kings Bench. 〈◊〉 upon a usurious Contract 1 Cro 155. IN Debt upon a Bond The Plaintiff declared That the Bond was made in London The Defendant pleaded That an usurious Contract was made betwixt the parties at D. in Stafford-shire that the Obligation was made for the same contract The Plaintiff by Replication saith that the Bond was made bona
and it shall be intended the Rent mentioned before See 21 H. 7. 30. b. Where Villa West shall be intended Villa praedict 19 E. 4. 1. In a Quare Impedit the Plaintiff doth entitle himself by grant of the next Avoydance cum acciderit and doth not shew in his Count that the same was the next Avoydance and yet the Count was holden to be good for so it shall be intended so here And he said It is not necessary that a Declaration be exactly certain in every point but if one part of it expound the other it is well enough And although the Identity of the Rent doth not appear by the word praedict yet it appeareth by other circumstances as by the days of payment c. and no other Rent can be intended And now this Exception is after Verdict and therefore favourably to be taken And afterwards Iudgment was given for the Plaintiff CCXLI. Musted and Hoppers Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared Assumsit p 1 Cro. 149. That where he and one Atkinsal were joyntly and severally bounden by Obligation in fifty pounds to a stranger for the only Debt of the said Atkinsal which Atkinsal died and the Defendant married afterwards his Wife and so the Goods of Atkinsal came to his hands yet the Plaintiff the first day of May after which was the day of payment of the money paid five and twenty pounds for avoiding the Forfeiture of the penalty The Defendant as well in consideration of the Premisses as in consideration that he might peaceably enjoy the Goods of the Testator promised to pay the said sum cum inde requisitus fuer And upon Non Assumpsit the Iury found the payment of the said sum and all the precedent matter And that the Defendant in consideration praemissiorum promised to pay the said sum if he might peaceably enjoy the Goods of the said Testator It was moved in arrest of Iudgment that although here the Iury have found sufficient cause of Action yet if the Declaration be not accordingly the Plaintiff shall not have Iudgment Verdict And here the Plaintiff hath declared upon two Considerations and the Iury hath found but one scil if he peaceably enjoy the Goods of the Testator Also the Plaintiff declared of a simple promise and the Iury have found a Conditional Si gaudere potest c. And so the promise set forth in the Declaration is not found in the Verdict Gawdy was of opinion That the first consideration is good Consideration for the Plaintiff entred into Bond at the request of the Defendant and then the promise following is good But the second consideration is void scil That the Defendant shall enjoy the goods of the Testator c. as if it had been that he should enjoy his own goods And all the Iustices were clear of opinion That the Promise found by the Iury is not the promise alledged in the Declaration and so the issue is not found for the Plaintiff and so the judgment was stayed CCXLII. Creckmere and Pattersons Case Trin. 30 Eliz. In the Kings Bench. Rot. 568. Devise conditional 1 Cro. 146. 1 Roll. 410. 1 Inst 236. b. UPon a special Verdict the Case was this Robert Dookin was seised of certain Lands in Fee and having issue two Daughters devised the same to Alice his Eldest Daughter that she should pay forty pound to Ann her Sister at such a Day the money is not paid whereupon Ann entreth into the moiety of the Land And it was holden by the whole Court that the same is a good Condition and that the Entry of Ann was lawful It hath been adjudged That where a man devised his Land to his wife Proviso My will is That she shall keep my house in good Reparations that the same is a good Condition Wray A man deviseth his Lands to B. paying 40 l. to C. it is a good condition for C. hath no other remedy and a Will ought to be expounded according to the intent of the Devisor CCXLIII Dove and Williots and others Case .. Hill. 31 Eliz. In the Kings Bench. 1 Cro. 160. IN an Ejectione firmae upon a special Verdict the case was That W. was seised of the Land where c. and held the same by Copy c. and surrendred the same unto the use of E. for life the Remainder to Robert and A. in Fee Robert made a Lease to the Defendant E. Robert A. surrendred the said Land scil a third part to the use of Robert for the life of E. the Remainder to the Right heirs of Robert and of another third part to the use of Robert for life the Remainder to E. the Remainder to Richard c. and of another third part to the use of A. and his Heirs After which Partition was made betwixt them and the Land where c. was allotted to Richard who afterwards surrendred to the use of the Plaintiff It was holden That Iudgment upon this verdict ought not to be given for the Plaintiff For the Lessee of Robert had the first possession and that Lease is to begin after the death of E. who was Tenant for life and when E. and he in the Reversion joyn in a surrender thereby the estate for life in that third part is extinct in Robert who hath the Inheritance and then his Lease took effect for a third Part. So that the Parties here are Tenants in Common 1 Inst 200. betwixt whom Trespass doth not lye CCXLIV Bulleyn and Graunts Case Hill. 31 Eliz. In the Kings Bench. Copyhold UPon Evidence to a Iury the Case was That Henry Bulleyn the Father was seised of the Land being Copyhold and had Issue three Sons Gregory Henry andy Thomas and afterwards surrendred to the use of the last Will Devise 1 Cro. 148. and thereby devised the said Land to Joan his Wife for life the remainder to the said Henry and the Heirs of his body begotten Joan died after admittance Henry died without Issue and afterwards the Lord granted it to Thomas and his Heirs who surrendred to the use of the Defendant then his Wife for life and afterwards died without Issue Gregory eldest Son of Henry Bulleyn entred c. Coke When the Father surrendreth to the use of his last Will thereby all passeth out of him so as nothing accrueth to the Heir nor can he have and demand any thing before admittance Wray The entry of Gregory is lawful and admittance for him is not necessary for if a Copyholder surrendereth to the use of one for life who is admitted and dieth he in the Reversion may enter without a new Admittance It was moved by Coke if this Estate limited to Henry be an Estate tail or a Fee conditional For if it be a Fee-simple conditional then there cannot be another Estate over but yet in case of a Devise an Estate may depend upon a Fee-simple precedent but not
Will he cited Chicks case 19 Eliz. 357 and 23 Eliz. 371. Dyer At another day it was argued by Cook That both the Houses pass and the words take the profit do not restrain the general words before viz. All my Lands and Tenements but rather expounds them sci such profits that they might take of a Reversion cum acciderit for it may be that the Brother shall die within ten years And he cited the case 34 H. 6. 6. A man seised of diverse Reversion upon estates for life devises them by the name of omnium terrarum tenementorum which were in his own hands and by those parols the Reversion did pass and yet the Reversion to speak properly was not in his hands and if the Brother had died in the life of the devisor they had clearly passed and then his death or life shall not alter the case And he resembled the case to the case in 39 E. 3. 21. The King grants to the Abbot of Redding That in time of vacation the Prior and Monks shall have the disposition of all the possessions of the said Abbey ad sustentationem Prioris Monachorum 3 Cro. 290. and if in the time of vacation they shall have the Advowsons was the question for it was said That advowsons could not be to their sustentation But yet by the better opinion the grant of the King did extend to Advowsons for it shall be intended such sustentation as Advowsons might give Godfrey Our Case is not like to the case of 34. H. 6. for there the Devisor had not any thing in possession and therefore if the Reversion did not pass the devise should be utterly void Gawdy conceived that the house in possession only passed for the devise extends to such things only whereof the Profits might be taken but here is not any profit of a Reversion Clench and Wray contrary The intent of the devise was to perform the Will of his Father and also of his own Will and in case the house in possession was not sufficient to perform both the Wills all shall pass and therefore the devise by favorable construction is to be taken largely so as the Wills might be throughly performed and also the devise is general and further all his Lands and Tenements which are not restrained by the Subsequent words to take the profits for to have and to hold and to have and to take the profits is all one CCLV. Slugge and the Bishop of Landaffs Case Trin. 31 Eliz. In the Kings Bench. SLugge libelled against the Bishop of Landaff in the Ecclesiastical Court because where he was presented by the Dean and Chapter of Gloucester to the Church of Penner the Bishop did refuse to admit him and now the Bishop sued a Prohibition and shewed Prohibition Quod non habetur talis Rectoria cum cura animarum in eadem diocesi sed perpetua vicaria And by Popham a Prohibition doth not lye but the matter ought to be determined in the Ecclesiastical Court and when he who is presented to the same Church whether it be a Church or not shall be tried in an action of trespass and the like matter was ruled Mich. 14. Eliz. betwixt Weston and Grendon who was presented by the Queen and it was holden that because institution and admission do belong to the Ecclesiastical Court and not to the Kings Court that no Prohibition should lye and therefore he prayed a Consultation And note That the Defendant in the Prohibition did not demur formally upon the suggestion for the Iudges use if the suggestion be not sufficient to maintain the Prohibition to grant a Consultation without any formal demurrer upon the Suggestion if the insufficiency of the Suggestion be manifest Trial. which was granted by the whole Court. Cook That a Consultation ought not to be granted for whether there be such a Rectory or not shall be tried here So 2 H. 4. 30. Prior or not Prior 49 E. 3. 17 18. Wife or not Wife but never accoupled in loyal matrimony by the Bishop Ante. 53. 54. 44 E. 3. So within or without the Parish 50 E. 3. 20. So 45 E. 3. Quare Impedit 138. In a Quare Impedit no such Church within the County Afterwards at another day Popham put the case Slugge was presented to the vicaridge of Penner the Bishop refused to admit him and admitted one Morgan Bletthen unto the Parsonage of Penner at the presentment of the Lord St. John Slugge sued the Bishop for contumacy per duplicem querelem The Bishop said Non habetur talis vicaria upon which matter he sued a Prohibition and he conceived That the Prohibition did not ly for a Vicar is but he that gerit vicem Personae to supply his place in his absence so as the same is a spiritual matter which ought not to be tried here Also the libel is to have Admission and Institution and the other matter ariseth by their Plea sci Quod Rectoria de Penner est Ecclesia cum cura animarum absque hoc quod habetur talis Vicaria and so it is but an incident to the principal matter wherefore it shall be tried there and he prayed a Consultation Cook We have shewed That in the time of E. 3. one L. was seised of the Manour of Penner to which the Church of Penner is appendant and we alledge presentments from the time and we convey it to the Lord St. John which now is and they would now defeat us by this surmise That there is no such Church with cure of Souls which is triable here Popham the libel doth contain nothing but contumacy in the Bishop in that he hath not admitted Slugge and the other matter comes in the Replication and afterwards by assent of the parties a Consultation was granted quoad institutionem of Slugge only but that they should not proceed further CCLVI. Fennick and Mitfords Case Pasch 31 Eliz. Rot. 154. In the Kings Bench. Moâ—e 284. 2 Co. 91. THe Case was A man seised of Lands in Fee levieth a Fine to the use of his wife for life the remainder to the use of his eldest son the heirs males of his body the Remainder to the use of the right heirs of the Conusor The Conusor makes a Lease for a thousand years to B. the eldest son dieth without issue male having issue a daughter the Conusor dieth the wife afterwards dieth the eldest son enters and leaseth the Lands to the Plaintiff Atkinson That upon this conveyance a Reversion was left in the Conusor although by the fine all is conveyed out of the Conusor and so as it hath been objected the use limited to the right heirs of the Conusor is a new thing For it is to be observed When a man is seised of Lands he hath two things the Land or the Estate and secondly the use which is the profits and if he make a Feoffment without consideration by that the estate and possession passeth
CCLXXVIII Arrundel and the Bishop of Gloucesters and Chaffins Case Mich. 31 32 Eliz. In the Common Pleas. Quare Impedit SIir John Arrundel brought a Quare Impedit against the Bishop of Gloucester and Chaffin and counted upon a disturbance to present 1 Novembris Chaffin as incumbent pleaded That 1 Maii next after the said 1 Novemb. he himself was presented to the Church by the Queen the presentment to the said Church being devolved unto her by Lapse Vpon which the Plaintiff did demur in Law And the plea was holden insufficient for the Plaintiff counted upon a Disturbance to him 1 Novem. and the Defendant entitleth himself to an incumbency 1 May after in which case the disturbance set forth in the Count is not answered by traverse nor confessed nor avoided And of that opinion was the whole Court For the disturbance of which the Plaintiff hath declared is confessed And afterwards It was moved by the Queens Serjeants That the Queen might have a Writ to the Bishop Writ to the Bishop for the title of the Queen appeareth to be by Lapse which is confessed But the whole Court were clear of opinion against it For although it appeareth that he was lawfully presented to the said Church and so once lawfull Incumbent yet it appeareth also That the title of the Queen is once executed and so gon and nothing remains in the Queen and now when the Defendant hath lost his incumbency by ill pleading as he may as well as by Resignation or Deprivation yet the same shall not turn to the advantage of the Queen for where the Queen presents for laps and her Clark is instituted and inducted the Queen hath no more to do but the Incumbent must shift as well as he can for the holding of it for by what manner so ever he loseth his incumbency the Queen shall not present again otherwise it had been if the Queen be Patron and afterwards the Plaintiff had a Writ to the Bishop CCLXXIX The Lord Pagets Case in a Monstrans de Droit The Case was Mich. 31 32 Eliz. In the Exchequer Chamber More 193 194 1 Co. 154. 1 And. 259. THomas Lord Paget Father of William Paget was seised of the Mannor of Burston and divers other Mannors in three several Counties in his demesne as of fee and so seised by Indenture between the said Lord of the one part and Trentham and others on the other part and in consideration that the said Trentham and others with the profits of the said Mannors should pay his debts and such sums of money which were contained in such a Schedule and which he should appoint by his last Will covenanted to stand seised of the said Mannors to the use of the said Trentham of one Eusal c. for the term of four and twenty years and after the Expiration or end of the said Term of twenty four years unto the use of the said William Paget his Son in tail with diverse Remainders over And afterwards the said Lord Paget was attainted of high Treason It was here holden and agreed by all the Iustices and by the Council of both sides That the uses limited to Trentham and others are void for here is not any consideration sufficient to raise an use for the mony which is appointed for the payment of his debts is to be raised of the profits of the Lands of the said Lord Declaration of uses which is not any consideration on the part of Trentham and others But if the consideration had been That they with the Profits of their own Lands should pay the debts c. It had been a good Consideration It was agreed also That the term for twenty four years to Eusal is void for want of sufficient consideration And then it was moved If this Lease being void The use limited to the said William Paget Son of the said Lord Paget should being presently upon the death of the Lord Paget or should expect until the twenty four years were encurred after the death of the Lord Paget or not at all And it was argued That an use to be raised upon an impossibility should never rise as if I covenant to stand seised to the use of B. and his Heirs after the end of the term for years which I.S. hath in the Mannor of D. whereas in truth I. S. hath not any term in it the said use shall never rise so here Use cannot rise out of a possibility No use to the Son can rise for the lease for twenty four years shall never end for it never can begin for want of sufficient consideration as is aforesaid and if the said use in tail should at all rise it should not rise before the expiration of the said twenty four years As if I covenant to stand seised of certain Lands to your use when my Son and Heir shall come to the age of one and twenty years now if my Son dieth before such age The use shall not begin before the time in which my Son if he shall live should attain unto his said age Egerton the Queens Solicitor Vses may be limited to begin at times certain before which they shall not begin and so in our case the use in tail in limited to begin when the term of twenty four years is ended and therefore until the Term be ended no use shall rise and the use is limited to rise upon the end of the time or term of four twenty years and not upon the end of the estate and so William Paget hath begun his Monstrans de Droit before his time The Lord Paget had but an estate for life and if so Then the Remainders are not continggent uses but vest presently as if a man covenant That after his death his Son and Heir shall have his Lands now the Father hath but an estate for life and the inheritance is vested in the Son. Cook I covenant That after twenty four years ended I and my Heirs will stand seised to the use of my Son c. there the use in Fee doth vest in my Son presently So I covenant That after my death I and every one who shall be seised c. shall be seised of the said Land to the use of my Brother the said use shall rise to my Brother presently I devise That after the death of such a Monk I.S. shall have the Land nothing passeth to I.S. till the death of the Monk but if Land be devised to a Monk for life and afterwrds to another in Fee the Devisee in Fee shall have the Land presently Manwood A devise or use limited to one for life the Remainder in tail the first devisee doth disagree Cook the Remainder doth vest presently Manwood I devise lands unto one until my Son comes of full age Cook The remainder doth vest presently Manw. A use limited to one to begin at Mich. next the remainder over if in the mean time the Lessee obtain the
good will of I.S. which he cannot obtain the same remainder is not good And if one covenant to stand seised to the use of Salisbury plain for the life of I. S. and after the remainder to A it is a plain case That he in the remainder shall take presently 37 H. 6. 36. Cestuy que use willed That his Feoffees should make an estate to A. for life the remainder to C. in fee A. would not take the estate C. shall have a Subpoena against the Feoffees after the death of A. See there the case And if Land deviseable be devised to one for life the Remainder over to another in Fee and the Devisee for life doth refuse Quaere if the Devisee in Remainder shall enter presently See Fitz. Subpoena And also he put the Case where Land is devised to a Monk for life the Remainder over to another in Fee he in the Remainder shall enter presently see the same Case in Perkins 108. for the Monk never took any thing by the devise notwithstanding that there is not any particular estate upon which a Remainder can depend yet the intent of the Devisor shall be observed in as much as it may and the particular estate limited to the Monk is meerly void of which every stranger shall take advantage c. And it was resembled to a Case in Baintons Case where an use in Remainder limited upon good consideration shall be good in Law although the particular use be not grounded upon good consideration so faileth And he urged a Case alleadged by Popham in the Case of the Earl of Bedford that if in Cranmers Case the estate for years limited to the Executors 2 Leâ— 5. 6. had been limited to Administrators it had been meerly void and the use in tail limited in tail should begin presently that was by reason of the interval betwixt the death of Cranmer the taking of the Letters of Administration in which mean time there is not any person capable and therefore the Remainder shall vest presently which is a fit case to prove the Case at Bar And he remembred that in the Argument of Cranmers Case Lovelace Serjeant would have an Occupancy in the Case of such a Term limited to Administrators quod omnes Justiciarii negaverunt and in the said Case of Cranmer it was holden that the Lease for years being void the estate in the Remainder did begin presently without expecting the effluxion of the years c. And truly a Term imports in it self an Interest but if the limitation had been after the Term of twenty four years c. the same implyeth but a bare time And to that purpose he cited the Case 35 H. 8. Br. Exposition 44. A. Leaseth to B. for ten years it is covenanted betwixt them that if B. pay unto A. within the said ten years one hundred pounds that then he shall be seised to the use of B. in Fee B. surrenders his Term to A. and within the said ten years pays the one hundred pounds to A. here B. shall have Fee for the years are certain contrary if the Covenant had been If he pay within the Term. Popham Attorney General Contrary The use shall not go beyond the Contract here the Term doth not vest in that it was Limited for want of sufficient consideration of the Lord Paget the intent was not that his son should have possession of the land before the term of 24. years expired Use what it is A use is a thing in Conscience according to confidence to be guided by the intent of the parties upon such Case at the Common Law W. Paget should not have a Subpoena before the years expired and this word Term doth not alter the Case and there is a great difference betwixt an use raised by Feoffment and an use raised by Covenant For in the first case the Feffor doth dipossess himself utterly if it takes not effect to one purpose it shall take effect to another purpose But in the Case of a Covenant it is otherwise for the use riseth according to the contract not otherwise here the Contract is That W. Paget shall have the Land not immediatly after the death of his Father but after the 24 years expire Owen Serjeant It hath been agreed of both sides That every use shall go according to the intent of the parties and here it appeareth That it was the intent of the Lord Paget to put all the use out of himself and I see not any difference betwixt an use raised by Covenant and a use raised by Feoffment For a use limited utrovis modo to Pauls Steeple for the life of A. and after to the use of B. in Fee the first use is void but the second good and here the meaning of the Lord Paget plainly appears for there is a Proviso in the Indenture That after the said debts and legacies paid the use limited for 24 years shall cease and it is exprestly averred that they are paid 11. H. 4. A. leaseth for life the remainder in tail to himself the Remainder over to a stranger in Fee the mean Remainder limited by A. to himself is void and the remainder over shall be immediate to the estate for life Egerton The words of the Indenture and the intent of the parties are the rules of uses The first use is void For the intent of the Lord Paget was void because contrary to the Law and Eusal to whom the use for years was limited could not take presently for his estate is limited to begin after the death of the Lord Paget and there is a great difference betwixt uses raised by Covenant and by Feoffment For when a use is raised by Feoffment there all is out of the Feoffor the land is gone the use is gone the trust is gone nothing remaineth but a bare authority to raise uses out of the possession of the Feoffees being new uses there although some of them be void yet the other shall stand but where a use is raised by way of Covenant there the covenantor continues in possession there the uses limited if they be according to Law shall raise draw the possession out of him but if not the possession shall remain in him until a lawful use shall arise which before its time shall not rise for any defect in the precedent use And here is no Term therefore no end for that which hath not a begining hath no ending And if there be no estate then no Term if there be so then it is to be taken for the time of 24. years which is not as yet expired and then was there in the Lord Pawlet an estate descendable for 24 years which by the Attainder doth accrue unto the Queen And he cited the Case of 13 Eliz. Dyer 300. Feoffment to the use of himself for life and afterwards to the use of a woman which he entendeth to marry until the issue which he
should beget on the said woman should come unto the age of 21. years and then to the use of the woman during her widow-hood They are married the Husband dieth without issue the Wife shall hold the land But by him if this use had bin raised by way of Covenant it should be otherwise Coke Admit that all the uses be good yet his meaning was That the debts and legacies being paid W. Paget should have his land for it is provided by the Indenture That when the debts legacies are paid the estate for 24. years shall cease Manwood The payment of the debts cannot end that which never was and as to the two first estates they were never out of him therefore they came unto the Q. by his attainder Coke After debts and legacies paid all other estates but the estate of W. Paget cease therefore William Paget shall have the Land. And the rule of Shelly 35 H. 8. 56 is worthy to be received scil That learning is honest wished to be used that every man learned in the Law do construe Deeds according to the meanings of the makers Manwood A Feoffment to the use of Salisbury Plain for the life of I. S. the Remainder over the same use shall come into possession presently for there is not any person capable of the particular estate but where the first use is limited to a Bastard the remainder over there the Remainder shall not come into possession presently for the Bastard is a person capable but not by such form of conveyance in consideration of natural affection Popham In the case of Bastard there was an estate for life executed to the Father in possession then a Remainder to a Bastard the Remainder to the Sons lawfully begotten but here in our Case no estate is created to precede the estate of William Paget upon which the Remainder can depend At another day It was argued by Coke It is to be agreed on both sides That the estate for four and twenty years is meerly void and also the first use limited to Trentham and others and it is not reason that the use limited to William Paget should expect until the four and twenty years be expired by effluxion of time and to that purpose he cited Cranmers Case where an estate in use was limited to Cranmer for life the Remainder to his Executors for one and twenty years the Remainder over in tail to his Son and Heir c. Cranmer is attainted of Treason and Heresy so as he could not make a Will or Executors there it is holden That the term is void because no Executors and that the Remainder in use should vest presently and should not expect until the said number of years expire by effluxion of time And difference hath been put betwixt the case of Cranmer and the Case at Bar because in Cranmers Case there was a possibility at the beginning that the Term for years might be good for the term became void by matter ex post facto sci By the attainder of him which disabled him to make Executors but in the Case at Bar the term for twenty four years was expresly void ab initio But that difference is without reason for what reason is there That the Remainder should be father off the possession when the estate for years is originally void than when it becomes void by matter ex post facto Suppose that the Lord Paget had by Indenture covenanted as above for the two first uses being in truth void in Law and afterwards by another Indenture reciting That whereas he had covenanted That in consideration That A. with the profits of his Lands should pay his debts c. to stand seised of the said Lands for his own life Now he covenants to stand seised to the use of William Paget and his Heirs should not he presently be seised to the use of William Paget and his Heirs although the words be That then and from thenceforth For I hold it a clear case that his estate begins presently being limited to begin upon a void estate althouh the limitation be by words de futuro And to this purpose he cited the case 3 E. 6. Br. Lease 62. A man leaseth for years Habendum post dimissionem inde fact to J.S. finitam where no such demise is made the same Lease shall begin presently If an Indenture be made to a Monk and another Habend to the Monk for one and twenty years and after the end of that to the other for one and twenty years the other shall have it presently And he put a Case 7 E. 3. in the new Impression 19. and in the old Impression 317. Where one Maud brought a Formedon in the Remainder and counted that one Hamond was seised and gave the said Tenements to one Robert c. in tail and that for want of such issue that the Tenements should return to the said Hamond for life the Remainder to the Demandant in Fee and counted further That Robert is dead without issue and that Hamond is also dead c. It was holden although that the Remainder reserved to the Donor be void yet the Remainder over in Fee is good c. And in that case although that the Remainder in Fee was future sci After the death of Hamond the estate reserved to Hamond meerly void that originally not by matter ex post facto yet the Remainder in Fee was good and should begin presently upon the death of Robert without issue and should not expect the death of Hamond Mr. Attorney hath given a Rule That the intent of the parties is the Direction of uses as also of Wills and therefore I will put one Case of Wills 37 H. 6. 17. If a man devise Lands to a Monk for four and twenty years and after the same ended to another in Fee here the Monk being a dead person cannot take the estate limited to him therefore it is void but the Fee limited to the other is good and shall take effect presently If it be so in a Will why not so also in uses For the intents of the parties do direct the constructions of both And our case here is a stronger case than the case cited 37 H. 6. 36. for there where Land is devised to a Monk for life there may be colour of an Occupant during the life of the Monk who might take it although the Monk himself cannot take it and so the Remainder doth not take effect presently as to the possession but shall stay till after the death of the Monk But here is not any colour of an Occupancy for the estate here is a Lease for years which cannot admit an Occupant And see also 37 H. 6. 36. If a man devise that his Feoffees shall make an estate to I. S. for life the Remainder over to C. in Fee and I. S. will not take his estate C. shall have a Sub-poena against the Feoffees to make an estate to him
33 Eliz. In the Common Bench. IT was found by special Verdict that Berwich and Tesdel seised of certain Lands conveyed the same to Sir Thomas Cotton for life Fines levied to use Co. 2 Inst 519. 1 Cro. 219. the Remainder to VVil. Cotton primogenito filio suo haeredi masculo sic de primogenito ad primogenitum dict VVilliam the Remainder to the right Heirs of the body of Sir Tho. Cotton and VVil. Cotton lawfully issuing the Remainder to the right Heirs of Sir Tho. Cotton VVil. had Issue a Son born here in Eng. and went beyond Sea to Antwerp and there continuing and his Son being within age in England Sir Thomas Cotton levied a Fine of all the Land sur conusans de droit come ceo c. And afterwards by Indenture convenanted to stand seised to the use of himself for life and afterwards to the use of Rober Cotton his Son in Fee William died at Antwerp his said Son being within age in England Sir Tho. Cotton died Robert entred and leased the Lands for years to Sary and the Infant Son and Heir of William leased the Land to one Chewn at Will who entred and ousted Sary who thereupon brought Ejectione firmae It was here holden by the Court that Sir Tho. Cotton was Tenant for life the Estates Remainder to William for term of his life the Remainder to the Heirs of both their bodies issuing So as unto one Moyety Sir Thomas Cotton had an Estate tail dependant upon the said Estates for life and so the Fine levied by him was a Bar to the Issue of William for a Moyety And as to the other Moyety they held that the said Fine was not any Bar but that the party interessed at the same time might avoid the Fine at any time during his Nonage five years after for Wil. his Father was not bound by the Statute of 4 H. 7. because at the time of the Fine levied he was beyond the Seas and although he never returned but died there yet by the equity of the Statute his Issue shall have five years after his death to avoid the Fine if he were of full age and if he were within age then during his Nonage and five years after At another day the Case was argued and put in this manner viz. Lands were given to Sir Thomas Cotton for life without Impeachment of Wast the Remainder over to Cheny Cotton his eldest Son primogenito filio haeredi Masculo of the said Cheny sic de primogenito filio in primogenitum filium the Remainder to the Heirs Males of the body of the said Cheny for want of such Issue the Remainder to Wil. Cotton his second Son primogenito filio in primogenitum filium the Remainder over to the said Sir Thomas and the said William and the Heirs Males of their bodies lawfully begotten Cheny Cotton died without Issue William having Issue went beyond the Sea Sir Thomas Cotton 19 Eliz. levied a Fine with Proclamation and afterwards William the Father died in Antwerp his Son being within age Sir Thomas by Indenture limited the use of the Fine to himself for life the Remainder over to Robert Cotton his third Son in Tail Sir Thomas died but it doth not appear at what time William the Son being yet within age entred but non constat quando and 31 Eliz. leased the Lands to the Defendant at Will. Drue Serjeant argued for William Cotton And he conceived that William the Father had an Estate-tail and then the entry of William the Son was congeable for the whole But admitting that it is not an Estate-tail in VVilliam the Father for the whole yet he hath by the second Remainder an Estate-tail in the Moyety and then his Entry good as to one Moyety and then Robert being Tenant in Common of the other Moyety Tails his Lessee without an actual Ouster cannot maintain an Ejectionae firmae against the Lessee of his Companion And he conceived here is a good Estate-tail in VVilliam Cotton by virtue of the Limitation to William primogenito filio haeredi Masculo ipsius Guliel sic de primogenito filio in primogenitum filium c. for according to the Statute of VVest 2. the will of the Donor ought to be observed and here it appeareth that the intent of the Donor was to create an Estate-tail although the words of the Limitation do not amount to so much And the Estates mentioned in the Statute aforesaid are not Rules for Entails but only Examples as it is said by Trew 33 E. 3 F. Tail 5. see Robeiges Case 2 E. 2. 1 Fitz. Tail and 5 H. 5. 6. Land given to A. and B. uxori ejus haeredibus eorum aliis haeredibus dicti A. si dict haeredes de dictis A. B. exeuntes obierint sine haeredibus de se c. and that was holden a good Entail so a gift to one and his Heirs si haeredes de carne sua habuerit si nullos de carne sua habuerit revertatur terra and adjudged a good tail So 39 E. 3. 20. Land given to Husband and Wife uni haeredi de corpore suo ligitime procreat uni haeredi ipsius haeredis tantum And that was holden a good Tail and so he conceived in this Case that although the words of the Limitation are not apt to create an Estate-tail according to the phrase and stile of the said Statute of VVest 2. yet here the intent of the Donor appears to continue the Land in his Name and Blood for VVilliam the Son could not take with his Father by his Limitation for he was not in rerum natura and therefore all shall vest in VVilliam the Father which see 18 E. 3 Fitz. Feoffments Fait 60. Now it is to see if upon the Limitation to Sir Thomas Cotton and VVilliam his Son by which the Remainder is limited to Sir Thomas Cotton and VVilliam and the Heirs Males of their bodies issuing the said Sir Thomas Cotton Wil. have a joynt Estate-tail in respect that the Issue of the body of the Son may be Heir of the Body of the Father and so because they might have one Heir which shall be inheritable to his Land it shall be one entire Estate-tail in them But he conceived that they are several Estates-tail and that they are Tenants in Common of an Estate tail 3 4 Phil. Mar. Dyer 145. Land given to the Father and Son and to the Heirs of their two Bodies begotten the Remainder over in Fee the Father dieth without other Issue than the Son only and afterwards the Son dieth withou Issue a stranger abates Or if the Son hath made a Discontinuance if he in the Remainder shall have but one or two several Formedons was the Question And by Saunders Brook and Brown but one Formedon and Quaere left of it yet admitting that yet notwithstanding that it might be
shewed our matter scil That we have Letters Patents of the Queen and that we were sworn in the said Office and so we are King of Heralds by matter of Record against which is pleaded only matter in defect of ceremony and circumstance which is not material An Earl is created with the ceremonies of putting a Sword broad-wise about his Body and a Cap with a Coronet upon his Head. Yet the King may create an Earl without such ceremonies And may also create an Earl by word if the same be after Recorded when a Knight is made Spurs ought to be put upon his Heels yet without such ceremony such degree may be conferred to and upon another for such ceremonies are or may be used or not used at the Kings pleasure Afterwards it was objected that the same is but a name of Office but not a name of Dignity To which it was answered that this word Coronamus always imports Dignity and this is a Dignity and Office as Earl Marquess c. Fenner Iustice The Patent is Nomen tibi imponimus and therefore Garter is parcel of his Name And therefore he ought to be Indicted by such Name And it should be hard to tye Estate and Degrees to ceremonies Gawdy was of opinion That this is but a name of Office and therefore the Indictment good as 1 Mar. Writ of Summons of Parliament issueth without these words Supream Head and the Writ was holden good for it is not parcel of the Name but addition only So here Fenner and Wray contrary for the words are Creamus Coronamus Nomen imponimus Ergo part of his Name which Clench also granted and afterwards Dethick was discharged CCCXXXVIII Strait and Braggs Case Pasch 32 Eliz. Rot. 318. In the Kings Bench. IN an Action of Trespass 2 Len. 1â—9 for breaking his Close in H. the Defendant pleaded that long before the Trespass the Dean and Chapter of Pauls were seised of the Manor of C. in the said County of H. in Fee in the Right of their Church and so seised King Edward the Fourth by his Letters Patents Dat. An. 1. of his Reign granted to them all Fines pro licentia Concordandi of all their Homagers and Tenants Resiants and Non-resiants within their Fee and shewed that 29 Eliz. A Fine was levied in the Common Pleas betwixt the Plaintiff and one A. of eleven Acres of Lands whereof the place where is parcel and the Post-Fine was assessed to 15 s. and afterwards Scambler the Forain Opposer did allow to them the said 15 s. because the said Land was within their Fee And afterwards in behalf of the said Dean and Chapter he demanded of the Plaintiff the said fifteen shillings who refused to pay it wherefore he in the Right of the said Dean c. And by their commandment took the Distress as Baily c. for the said 15 s. and afterwards sold it upon which the Plaintiff did demur in Law. It was moved that it is not averred that the Land whereof the Fine was levied was within their Fee but they say that Scambler allowed it to be within their Fee and the same is not a sufficient Averment which the Court granted And it was the opinion of the Court that the Dean and Chapter cannot distrain for this matter but they ought to sue for it in the Exchequer as it appeareth 9 H. 6. 27. In the Dutchess of Somersets Case Gawdy This Grant doth not extend to the Post Fine for Fine pro licentia Concordandi is the Queens Silver and not the Post Fine Wray All shall pass by it for it is about one and the same matter and they were of opinion to give Iudgment for the Plaintiff CCCXXXIX Sherewood and Nonnes Case Trin. 32 Eliz. Rot. 451. In the Kings Bench. Covenant IN an Action of Covenant the Plaintiff declared that Charles Grice and Hester his Wife were seised of certain Tenements calle Withons with divers Lands to the same appertaining and of another parcel of Land called Dole containing eight Acres to them and the heirs of the body of the said Charks on the body of the said Hester his wife lawfully begotten and so seised 15 Eliz. leased the same to the Defendant by Indenture for years by which Indenture the Lessor covenanted that the Lessee should have sufficient House-boot Fencing-wood and Hoop-wood upon the Lands during the Term and that further the Lessee covenanted for him his Executors and Assigns with the Lessor c. That it should be lawful for them to enter upon the Lands during the said Term and to have egress and regress there and to cut down and dispose of all the Wood and Timber there growing leaving sufficient House-boot Fencing-wood and Hoop-wood to the Lessee upon the Lands called the Dole for his expences at Withons and further that he would not take any Wood or Timber upon the Premisses without the assent or assigment of the Lessor or his Assigns otherwise than according to the Indenture and true meaning thereof And further declared That the said Charles and his Wife so seised levied a Fine of part of the Land to R. S. and his heirs to whom the Defendant attorned and that the said R.S. afterwards devised the same to I. his Wife the now Plaintiff for years the Remainder over to another and died and that the Defendant had felled and carried out of the Lands called Withons twenty loads of Wood without the assent and assignment of the Lessor or his Assigns for which the Plaintiff as Assignee brought the Action The Defendant pleaded That after the Lease John Grice and others by assignment of Hester had cut down and carried away fifty loads of Wood in the said Lands called the Dole and so they had not left sufficient Woods for his expences at Withons according to the Indenture for which cause he took the said twenty loads of Wood upon Withons for his expences upon which the Plaintiff did demur in Law. Godfrey The Plea is not good This Plea is no more but that sufficient Wood was not left upon the Dole for his expences and although there be not yet the Defendant cannot cut Wood elsewhere for he hath restrained himself by the Covenant Also the Covenant of the Lessor is That the Lessee shall have sufficient Wood upon the Dole for his expences at Withons but in his satisfaction he doth not alledge that he had need of Wood for to spend at Withons nor doth aver that he hath spent it there for otherwise he hath not cause to take c. And the meaning was that the Lessee should have sufficient Wood when he had need of it Hobart for the Defendant He would not speak to the Plea in Bar but he conceived that the Declaration was not good for here no breach of Covenant is assigned for the Covenant is in the Disjunctive scil That the Defendant should not take Wood without the assent or assignment of the Lessor or his Assigns And the Plaintiff
chargeth the Defendant with cutting of Wood without the assent and assignment of the Lessor so he would compel us to prove more than we ought for if he did it with their assent only or by their assignment only it is sufficient but if the Covenant had been in the copulative both was necessary And for the nature of Copulatives he cited the Case where two Churchwardens bring an Action of Trespass the Defendant pleads That the Plaintiffs are not Churchwardens upon which they are at Issue The Iury find That the one was Church-warden and the other not and for that the Plaintiffs could not have Iudgment for if the one of them be not Churchwarden then the Plaintiffs are not Churchwardens for the copulatives ought not to be disjoyned And he cited the case lately ruled in the Common Pleas betwixt Ognel and Underwood concerning Crucifield Grange A. leased unto B. certain Lands for forty years B. leased part of the same to C. for ten years A. grants a Rent-charge out of the Lands in tenura occupatione B. It was resolved That the Lands leased to C. should not be charged with that Rent for although it was in tenura B. yet it was not in his occupation and both are exquisite because in the copulative So here the Lessee may cut Wood with the assent of the Lessor without any assignment Also here the substance of the covenant cannot charge the Defendant for although it be in the Negative yet it is not absolute in the Negative but doth refer unto the covenant precedent for the words are That the Lessee shall not cut Woods aliter quam according to the intent of the Indenture where the covenant precedent is not that the Lessee shall not cut Woods but in the Dole but that the Lessor might cut down any Trees in the Dole leaving sufficient for the Lessee which covenant in it self doth not restrain the Lessee to cut down any Trees in any part of the Lands demised nor abridgeth the power which the Law giveth to him by reason of the demise Then when this last covenant comes i. e. That the Lessee will not cut aliter then according to the meaning of the Indenture without the assent c. the same doth not restrain him from the power which the meaning of the Indenture gives and so no breach of covenant can be assigned in this For by virtue of the Lease the Lessee of common Right may take necessary Fuel upon any part of the Land leased Also this first covenant being in the Affirmative doth not abridge any Interest as 28 H. 8. 19. The Lessor covenants That the Lessee shall have sufficient Hedge-boot by assignment of the Baily It is holden by Baldwin and Shelley That the Lessee may take it without assignment because there are no Negative words non aliter So 8 E. 3. 10. A Rent of ten pounds was granted to Husband and Wife and if the Husband overlive his Wife that he shall have three pounds Rent and if the Wife do over-live the Husband she shall have forty shillings there it was holden that the Rent of ten pounds continued not restrained by the severance of any of them And although peradventure it appeareth here that the meaning of the parties was That the Lessee should not cut down any Wood but in the Dole yet forasmuch as such meaning doth not stand with the Law it shall be rejected as it was holden to be in the case betwixt Benet and French where a man seised of divers Lands devised parcel of it called Gages to the erecting of a School and another parcel unto B. in fee and all his other Lands unto one French in Fee The devise of Gages was holden void because too general for no person is named and it was further holden that it passed by the general devise to French and yet that was not the meaning of the Devisor Also the Plaintiff is not Assignee but of parcel of the Reversion for if the Reversion is granted to him for years Owen Rep. 152. 1 Co. 215. and such Assignee cannot have an Action of Covenant for a Covenant is a thing in Action and annexed to the Reversion so that if the Reversion doth not continue in its first course as it was at the time of the creation of the Covenant but be altered or divided the Covenant is destroyed and therefore it was holden 32 H. 8. betwixt Wiseman and Warringer where a Lease for years was made of one hundred Acres of Lands rendring ten pound Rent and afterwards the Lessor granted fifty Acres of it that the Grantee should not have any part of the Rent but all the Rent was destroyed So in our case here the Grantee hath but parcel of the estate a Term for years and so is not an Assignee intended as the case betwixt Randal and Brown in the Court of Wards â— Co 96â—â—â—â— Randal being seised of certain Lands covenanted with B. that if he pay unto him his Heirs and Assigns five hundred pounds that then he and his Heirs would stand seised to the use of the said B. and his Heirs Randal devised the Land to his Wife during the minority of his Son the Remainder to his Son in Fee and died having made his Wife his Executrix Brown at the day and place tendred the money generally the Wife having but an estate for years in the Land took the money It was holden that the same was not a sufficient tender for the Wife is not Assignee for she hath an Interest but for years and here the Son is to bear the loss for by a lawful Tender the Inheritance shall be devested out of him and therefore the Tender ought to be made to him and not to his Wife Also as the case is here he is no Assignee for although Charles Grice and his Wife hath the Reversion to them and the Heirs of the body of Charles and levy a Fine without Proclamations nothing passeth but his own estate and then the Conusee hath not any estate Raph. Rep. 91. â— Câ—o. 804. â—05 but during the life of Charles and then when a man is seised to him and his Heirs during the life of another he hath not such an estate as he can devise by the Statute and then when he deviseth it to his Wife for years it is void c. It was adjorned CCCXL Smith and Hitchcocks Case Trin. 33 Eliz. In the Kings Bench. Assumpsit â— Câ—o. 201. IN an Action upon the Case the Plaintiff declared that whereas the Defendant was indebted to him 19 Maii 30 Eliz. The Defendant in consideration that the Plaintiff would forbear to sue him until such a day after promised at the said day to pay the debt The Defendant pleaded how that 29 Maii 29 Eliz. he was indebted unto the Plaintiff in the said sum for assurance of which afterwards he acknowledged a Statute to the Plaintiff upon which he had Execution and had levied the money absque
the Right of the Complainants come ceo c. with warranty of the said Husband and Wife for which the Complainants did render a Rent of fifty pounds per annum with clause of distress in dictis Manerijs to the said John Amy the Heirs of Amy and also rendred the Tenements aforesaid with the Appurtenances to the said John and Amy for their lives the Remainder to the said Francis their Son in tail the Remainder to the said Amy and her Heirs and that John and Amy dyed by force whereof the said Rent descendeth to the said Plaintiff as Son and Heir of the said Amy and that the said Francis entred into the said Mannors as in his Remainder and was seised in tail and was seised of the said Rent by the Hands of the said Francis and afterwards thereof did enfeoff the said Garmons the Defendant c. The Tenant pleaded That the Plaintiff was never seised so as he could be disseised and if c. Nul tor nul disseisin which was found for the Plaintiff who had Iudgment and Execution upon which the Tenant brought a Writ of Error Stephens assigned Error First the Fine is levyed of two Manors inter alia so as no other Lands passed by the Fine besides the Manors and so the Rent is granted out of the said Lands and Manors and no other Lands which passed by the Fine and then upon the Plaintiffs own shewing it appears that all the Tenants of the Lands charged with the Rent in demand are not named in the Assize Second Error This Rent is granted only out of the Estate tail for Amy hath Fee in both as well the Rent as the Land and then when the Estate tail is determined the Rent is also determined and he hath not averred the life of the Tenant in tail or any of his Issue wherefore it shall be intended that he is dead without issue and then the Rent is gone and then he hath not any cause to have Assise Bourchier As to the first conceived and argued that it is not Error for although these words inter alia c. yet it shall not be intended that the Conusor had any other Lands or that the Rent is issuing out of other Lands than those two Manors which are expressed not inter alia As to the second the continuance of the tail needs not to be averred for the Tenant in tail hath enfeoffed the Tenant of the Land by which the estate tail is discontinued And although the Tenant in tail be dead without issue yet the Rent doth remain until Recovery of the Land by Formedon in the Remainder Fenner Iustice was of opinion Vaugh. Reâ— 175. That the Per nomen should go unto the Mannors only and should not extend to the inter alia For if a man in pleading saith that J.S. was seised of twenty acres of Land and thereof inter alia did enfeoff him per nomen of Green-wead the same shall not have reference to the inter alia but only to the twenty acres And the averment of the continuance of the Tail needs not for the Estate-tail is discontinued Gawdy Iustice was of opinion That the per nomen should go as well to the inter alia as to the two Manors and then all the Ter-tenants are not named in the Assise and the same not to be pleaded for it appears of the Plaintiffs own shewing and there needs no averment of the continuance of the Tail for the cause aforesaid Clench Iustice The per nomen doth refer to all which see by the Fine which shews that other Lands passed by the Fine than the said two Manors And as to the second point he said There needed no averment Gawdy As to the first Error the same cannot be saved by any way but to say That the Conusor was not seised of any other Lands than the said two Manors and then the Fine doth not extend unto it and then no Rent is granted out of it Fenner In the Common Pleas in the great case of Fines it was holden that in pleading of a Fine it needs not to say That the Conusor was seised for if the Conusor or Conusee were seised it is sufficient for such pleading is contrary in it self for a Fine sur conusance de droit come ceo c. doth suppose a precedent Gift It was also objected That here is a confusion in this Fine for the Rent is rendred to the Husband and Wife and to the Heirs of the Wife and the Land is rendred to the Husband and Wife for their lives the Remainder to Francis in Tail the remainder to the Wife and her Heirs And these matters cannot stand together in a Fine but the one will confound the other But as to that it was said that the Law shall Marshall these two renders so as they both shall stand And it is not like unto a Rent-service for a Rent-service issueth out of the whole Estate And therefore if a Remainder upon an Estate for life Eschears the Seigniory is gone even during the life of the Tenant for life which see 3 H. 6. 1. contrary of a Rent-charge For if the Grantee of a Rent in Fee purchaseth the remainder of the Land out of which it is depending out of an Estate for life he shall have the Rent during the life of the Tenant for life And of that opinion were all the three Iustices for the Conusors took by several Acts and the Estate is charged for it cometh under the Grant. Fenner Iustice There is a difference betwixt a Rent service and a Rent-charge or Common for that shall charge only the Possession but a Rent-charge shall charge the whole Estate And therefore if he who hath a Rent-service releaseth to him in the Remainder upon an Estate-tail or for life the Rent is extinct which Gawdy denied And this Case was put The Disseisee doth release to the Lessee for years of his Disseisor nihil operatur But if the Disseisor and Disseisee joyn in a Release to such Lessee the same is good for first it shall enure as the Release of the Disseisor and then of the Disseisee c. CCCXLIV Tedcastle and Hallywels Case Mich. 32 33 Eliz. In the Kings Bench. Debt 2 Roll. 594. 1 Cro. 234 235. IN Debt upon a Bond the Defendant pleaded That the Condition was That whereas John Hallywel had put himself to be an Apprentice to the Plaintiff if the Defendant John Hallywel during his Apprenticeship or any other for him by his consent or agreement take or riotously spend any of the Goods of his said Master the Plaintiff If then the Defendant within one month after notice thereof given to him do pay and satisfie the Plaintiff for all such sums of Monies Wares c. so taken or riotously spent by the Defendant or by any other by his procurement or consent the same being sufficiently proved that then c. The Defendant by protestation Quod nec
ipse nor any other by his procurement or consent had taken or riotously spent the Goods of the Plaintiff for Plea saith That the Plaintiff before the Writ brought had not sufficiently proved that the said John Hallywel took or riotously spent any of the Plaintiffs Goods Vpon which the Plaintiff did demur in Law. It was argued by Daniel That the proof is sufficient and good for the time if it be tried in the Action upon this Obligation and the proof intended is proof by twelve men for it is not set down before what person it shall be proved nor any manner of proof appointed and therefore it shall be tried according the Law of the Land which see 10 E. 4. 11. 7 R. 2. Bar. 241. Godfrey contrary This case is not like to the cases before for here is a further matter First warning and a month after Notice pay c. And if the proof shall be made in this Action the Defendant shall lose the benefit of the Condition which gives time to pay it within a month after for in all such cases the precedent Act of the Obligee is traversable as 10 H. 7. 13. I am bound by Obligation to enfeoff such a person of such Lands as the Obligee shall appoint In an Action brought against me I shall say-that the Plaintiff hath not appointed c. And here ought to be Notice first and proof ought to precede the Notice by the meaning of the Condition and so this differs from the other cases put for here proof is not the substance of the whole Owen Serjeant It is the folly of the Defendant to put himself to such an inconvenience for now he ought to pay the mony without delay of any month And here the Defendant ought to plead That he hath not imbezelled any goods of the Plaintiff and the Plaintiff Replicando shall say and shew the Special matter that he hath given Notice to him thereof See 15 E. 4. 25. CCCXLV. Manning and Andrews Case 18 Eliz. In the Kings Bench. Devise 4 Len. 2. IN Ejectione firmae the Iury found by special Verdict That Richard Hart and Katharine his Wife and divers other persons 1 H. 8. were seised of the Lands in question to the use of Richard and his Heirs ad per implend ultimam volunt dict Rich. who the first of August 8 H. 8. by his Will in writing devised That his Feoffees should be from thenceforth seised to the use of his said Wife for her life and after to the use of W. H. his Son for his life without impeachment of Wast and after the death of the said Katharine his Wife William his Son and Joan Wife of the said William his Feoffees should be seised to the use of the next Heir of the Body of the said William and Joan lawfully begotten for the term of the life of the same Heir and after the decease of the same Heir to the use of the next heir of the same heir lawfully begotten and for default of such issue to the use of the heirs of the body of the said William and Joan lawfully begotten for the term of life or lives of every such heir or heirs More Rep. 368. and for default of such heirs to the use of the heirs of the body of the said William and for default c. to the right heirs of William And further he willed That if any of the said heirs shall set alien say to mortgage the right title and interest which they or any of them shall have in or out of the same Lands or by their consent or assent suffer any Recovery to be had against them c. or do any other Act whereby they or their heirs or any of them may or ought to be disinherited that then the use limited to such heir so doing shall be void and of no effect during his life And that his said Feoffees shall be thenceforth seised to the use of the heir apparent of such Offender as though he were dead Richard Hart died William had issue by the said Joan his wife a Son named Thomas and died and afterwards 31 H. 8. Joan died Katharine died Thomas entred and had issue Francis and Percival Thomas by Deed indented 1 August 4 Eliz. bargained and sold to Andrews and levied a Fine to him with warranty And afterwards 6 Eliz. Francis levied a Fine to the said Andrews Sur conusans de droit come ceo And further by the said Fine released to him with warranty at the time of which Fine levied Percival was heir apparent to the said Francis Francis after had issue I. and F. who are now living The heir of the Survivor of the Feoffees within five years after the age of Percival and seven years after the Fine levied enter to revive the use limited to Percival who entred and leased to the Plaintiff This case was argued by the Iustices of the Kings Bench c. First It was agreed by the whole Court That Richard Hart being seised with seven others unto the use of himself and his heirs might well devise all the use Use suspended yet the Land devised although his use was in part suspended because he was joyntly seised with seven others to his own use and so the use for the eighth part suspended for when this Devise is to take effect i. e. at the time of his death all the possession of the Land by the Survivor passeth from the use and then the use being withdrawn from the possession shall well pass And by Wray A use suspended may be devised As if Feoffees to use before the Statute of 27 H. 8. be disseised by which disseisin the use is suspended and afterwards during the disseisin Cestuy que use by his Will deviseth That his Feoffees shall re-enter and then make an estate to I. S. in Fee the same is a good devise for by that disseisin the trust and confidence reposed by Cestuy que use in the Feoffees is not suspended Secondly It was holden that here a use implied was limited to Joan the wife of William although there be not any express devise of it according to the Book of 13 H. 7. 17. Thirdly when a use is limited to the Heir of the body of William and Joan lawfully begotten for life and afterwards to the Heir of the body of the same heir for life c. Geofry Iustice was of opinion That here is in effect an estate tail for the estates limited are directed to go in course of an estate tail for he wills That every heir of the body of his Son shall have the Land and the special words shall not make another estate to pass but that which the Law wills As if Lands be given to one for life the Remainder after his death to the Heirs of his body lawfully begotten notwithstanding that the words of the limitation imply two several estates yet because the Law so wills it is but one estate Gawdy Iustice said That
If now because the Tithes are not expresly named in the Habendum the Grantee shall have them for life only was the Question It was moved by Popham Attorney General That the Grantee had the Tithes but for life and to that purpose he cited a Case adjudged 6 Eliz. in the Common Pleas A man grants black Acre and white Acre Habendum black Acre for life nothing of white Acre shall pass but at will and in the argument of that case Anthony Browne put this case Queen Mary granted to Rochester such several Offices and shewed them specially Habendum two of them and shewed which in certain for forty years It was adjudged that the two Offices which were not mentioned in the Habendum were to Rochester but for life and determined by his death And so he said in this Case The Tithes not mentioned in the Habendum shall be to the Grantee for life and then he dying his Executors taking the Tithes are Intrudors But as to that It was said by Manwood chief Baron That the cases are not alike for the Grants in the cases cited are several intire and distinct things which do not depend the one upon the other but are in gross by themselves But in our Cases The Tithes are parcel of the Rectory and therefore for the nearness betwixt them i. the Rectory and the Tithes the Tithes upon the matter pass together with the site of the Rectory for the term of twenty years and Iudgment was afterwards given accordingly CCCLXXXI The Lord Darcy and Sharpes Case Pasch 26 Eliz. In the Common Pleas Mich. 27 28 Rot. 2432. Debt THomas Lord Darcy Executor of John Lord Darcy brought Debt upon a Bond against Sharpe who pleaded that the Condition of the Bond was That if the said Sharpe did perform all the Covenants c. contained within a pair of Indentures c. By which Indentures the said John Lord Darcy had sold to the said Sharpe certain Trees growing c. And by the same Indentures Sharpe had covenanted to cut down the said Trees before the seventh of August 1684. and shewed further That after the sealing and delivery of the said Indenture the said Lord Darcy now Plaintiff Razure of Deeds 11 Co. 27. caused and procured I. S. to raze the Indenture quod penes praedict Querentem remanebat and of 1684. to make it 1685. and so the said Indenture become void And the opinion of the whole Court was clear against the Defendant for the razure is in a place not material and also the razure trencheth to the advantage of the Defendant himself who pleads it and if the Indenture had become void by the razure the Obligation had been single and without Defeasance CCCLXXXII Rollston and Chambers Case Pasch 28 Eliz. In the Common Pleas. Costs where Damages are given 2 Len. 52. ROllston brought an Action of Trespass upon the Statute of 8 H. 6. of forcible Entry against Chambers and upon Issue joyned it was found for the Plaintiff and Damages assessed by the Iury and costs of suit also and costs also de incremento were adjudged And all were trebled in the Iudgment with this purclose quae quidem damna in toto se attingunt ad c. and all by the name of Damages It was objected against this Iudgment that where damages are trebled no costs shall be given as in Wast c. But it was clearly agreed by the whole Court That not only the costs assessed by the Iury but also those which were adjudged de incremento should be trebled and so were all the Presidents as was affirmed by all the Prothonotaries and so are many Books 19 H. 6. 32. 14 H. 6. 13. 22 H. 6. 57. 12 E. 4. 1. And Book of Entries 334. and Iudgment was given accordingly And in this case it was agreed by all the Iustices That the party so convicted of the force at the suit of the party should be fined notwithstanding that he was fined before upon Indictment for the same force CCCLXXXIII Jennor and Hardies Case Hill. 29 Eliz. In the Common Pleas. Intrat Trin. 27 Eliz. Rot. 1606. THe Case was Lands were devised to one Edith for life upon condition that she should not marry and if she died or married Devises that then the Land should remain to A. in tail and if A. died without Issue of his body in the life of Edith that then the Land should remain to the said Edith to dispose thereof at her pleasure And if the said A. did survive the said Edith that then the Lands should be divided betwixt the Sisters of the Devisor A. died without Issue living Edith Shutleworth Serjeant Edith hath but for life and yet he granted That if Lands be devised to one to dispose at his will and pleasure without more saying That the Devisee hath a Fee-simple but otherwise it is when those words are qualified and restrained by special Limitation As 15 H. 7. 12. A man deviseth that A. Goldsb 135. Shepherds Touch-stone 439. shall have his Lands in perpetuum during his life he hath but an estate for life for the words During his life do abridge the Interest given before And 22 Eliz. one deviseth Lands to another for life to dispose at his will and pleasure he hath but an estate for life And these words If A. dieth without Issue in the life of Edith That then the Lands should remain to Edith to dispose at her pleasure shall not be construed to give to Edith a Fee-simple but to discharge the particular estate of the danger penalty and loss which after might come by her marriage so as now it is in her liberty And also he said That by the Limitation of the latter Remainder i. That the Lands should be divided betwixt the Daughters of his Sister the meaning of the Devisor was not that Edith should have a Fee-simple for the Remainder is not limited to her Heirs c. if A. dieth in the life of the said Edith for the Devisor goeth further That if A. overlives Edith and afterwards dieth without Issue that the said Land should be divided c. Walmesley contrary And he relyed much upon the words of the Limitation of the Remainder to Edith Quod integra remaneat dictae Edithae and that she might dispose thereof at her pleasure Ante 156. for the said division is limited to be upon a Contingent i. if A. survive Edith but if Edith survive A. then his intent is not that the Lands should be divided c. but that they shall wholly remain to Edith which was granted by the whole Court and the Iustices did rely much upon the same reason and they were very clear of opinion That by those words Edith had a Fee-simple And Iudgment was given accordingly Anderson conceived That it was a Condition but although that it be a Condition so as it may be doubted if a Remainder might be limited upon a Condition yet this devise is as
Williams and Powell for that the said Williams had before brought a Quare Impedit against the said Blower and the Bishop Dyer 353. b. 354. and had recovered against them by default whereupon Williams had a Writ to the Metropolitan to admit his Clerk and in the Writ of Disceit Iudgment was given for the Plaintiffs For it was found That the Summons was the Friday to appear the Tuesday after and so an insufficient Summons and in that Writ of Disceit the Defendants Williams and Powell pleaded That Blower the Incumbent was deprived of his Benefice in the Court of Audience which sentence was affirmed upon Appeal before the Delegates and notwithstanding that Plea Iudgment was given against Williams and Powell Defendants in the said Writ of Disceit And upon that Iudgment this Writ of Error is brought Beaumont assigned four Errors First 1 Cro. 65. because the Bishop and Blower joyned in the Writ of Disceit for their Rights are several 12 E. 4. 6. Two cannot joyn in an Action of Trespass upon a Battery done at one time to them So if one distrain at one and the same time the several Goods of divers persons they according to their several properties shall have several Replevins 12 H. 7. 7. By Wood. So if Lands be given to two and to the Heirs of one and they lose by default in a Praecipe brought against them they shall have several Writs the one Quod ei deforceat Joynder in Action the other a Writ of Right 46 E. 3. 21. A Fine levied to one for life the Remainder to two Husbands and their Wives in tail they have Issue and die Tenant for life dieth the Issues of the Husbands and Wives shall have several Scire facias's to execute the Fine by reason of their several Rights Lands in ancient Demesn holden severally of several Lords are conveyed by Fine the Lords cannot joyn in a Writ of Disceit but they ought to have several Writs so here the Plaintiffs in this Writ of Disceit and the Bishop claims nothing but as ordinary and he loseth nothing in the Quare Impedit and therefore by the Writ of Disceit he shall be restored to nothing The second Error was Because the Bar of the Defendants in the Writ of Disceit was good i. the deprivation c. and the Court adjudged it not good for the Clerk being deprived he could not enjoy the Benefice if the Iudgment in the Qu. Impedit had been reversed Regulâ— Post 330. and where a man cannot have the effect of his suit it is in vain to bring any Action Lessee for the life of another loseth by erronious Iudgment Cestuy que use dieth his Writ of Error is gone for if the Iudgment be reversed he cannot be restored to the Land for the estate is determined 31 E. 3. Incumbent 6. The King brought a Quare Impedit against the Incumbent and the Bishop the Bishop claimed nothing but as Ordinary The Incumbent traversed the title of the King against which it was replyed for the King That the Incumbent had resigned pendant the Writ so as now he could not plead any thing against the title of the King for he had not possession and so could not counterplead the possession of the King. And here in our Case by this deprivation the Incumbent is disabled to maintain this Action of Disceit 15 Ass 8. If the Guardian of a Chappel be impleaded in a Praecipe for the Lands of his Chappel and pendant the Writ he resign the Successor shall have a Writ of Error and not he who resigns for he is not to be restored to the Lands having resigned his Chappel So in our Case A deprivation is as strong as a Resignation The third Error because in the Writ of Disceit it is not set forth that Blower was Incumbent for the Writ of Disceit ought to contain all the special matter of the Case as an Action upon the Case 4 E. 3. Disceit 45. The fourth Error That upon suggestion made after Verdict that Blower was Incumbent and in of the presentment of the Lord Stafford Deprivation and that he was removed and Griffin in by the Recovery in the Quare Impedit by default a Writ to the Bishop was awarded without any Scire facias against Griffin for he is possessor and so the Statute of 25 E. 3. calls him and gives him authority to plead against the King 6 Co. 52. and every Release or Confirmation made to him is good 18 E. 3. Confirmation made by the King after Recovery against the Incumbent is good And 9 H. 7. If a Recovery be had in a Contra formam collationis the possessor shall not be ousted without a Scire facias so in Audita Querela upon a Statute Staple Scire facias Scire facias shall go against the Assignee of the Conusee 15 E. 3. Respon 1. See also 16 E. 3. Disceit 35. 21 Ass 13. A Fine levied of Lands in Ancient Demesn shall not be reversed without a Scire facias against the Ter-tenant Walmesley contrary The case at the Bar differs from the case put of the other side for they are cases put upon original Writs but our case is upon a judicial Writ and here nothing is demanded but the Defendant is only to answer to the disceit and falshood And in this Case the Issue is contained in the Writ which is not in any original Writ and the Iudges shall examine the issue without any plea or appearance of the Tenant and here the Defendant is not to plead any thing to excuse himself of the wrong And here the Iudgment is not to recover any thing in demand but only to restore the party to his former estate and possession and if he hath nothing he shall be restored to nothing And he put many cases where persons who have several Rights may joyn in one Action as a Recovery in an Assize against several Tenants they may joyn in one Writ of Error 18 Ass Recovery in Assize against Disseisor and Tenant they shall both joyn in Error why not also in Disceit 19 E. 3. Recovery against two Coparceners the Survivor and the heir of the other shall joyn in Error As to the second Error Williams and the Sheriff ought not to joyn in the Plea and also the Plea it self is not good for the Writ of Disceit is That Williams answer to the Disceit and the Sheriff shall certifie the proceedings and therefore he shall not plead and also the Plea it self is not good for although the interest of the Incumbent be determined in the Church yet his Action is not gone as if in a Praecipe quod reddat the Tenant alieneth pendant the Writ and afterwards the Demandant recovereth yet the Tenant although his Interest be gone by the Feoffment yet he shall have a Writ of Error and so here and as to the Scire facias there needs none here against the new Incumbent for he comes in pendant the Writ
But if they be collateral considerations which are not pursuant as if I in consideration that you are of my Counsel and shall ride with me to York promise to give to you 20 l. in this case all the considerations ought to be proved otherwise the Action cannot be maintained So in our case the considerations are collateral and therefore they ought to be proved and afterwards Iudgment was given for the Plaintiff CCCCVI Fooly and Prestons Case Hill. 28 and 29 Eliz. In the Common Pleas. IN an Action upon the Case the Plaintiff declared 1 Cro. 200. 2 Len. 105. That whereas John Gibbon was bound unto the Plaintiff in quodam scripto obligatorio sigillo suo sigillat and coram c. recognito in forma Statuti Stapul The Defendant in consideration that the Plaintiff would deliver to him the said Writing to read over promised to deliver the same again to the Plaintiff within six days after or to pay to him 1000 l. in lieu thereof upon which promise the Plaintiff did deliver to the Defendant the said Writing but the Defendant had not nor would not deliver it back to the Plaintiff to the great delay of the Execution thereof and the Defendant did demur in Law upon the Declaration It was objected that here is no sufficient consideration appearing in the Declaration upon which a promise might be grounded but it was the opinion of the whole Court that the consideration set forth in the Declaration was good and sufficient and by Anderson it is usual and frequent in the King Bench If I deliver to you an Obligation to rebail unto me I shall have an Action upon the Case without an express Assumpsit and afterwards Iudgment was given for the Plaintiff CCCCVII Wallpool and Kings Case Hill. 28 and 29 Eliz. In the Common Pleas. WIlliam Wallpool was bound to King by Recognizance in the sum of 400 l. and King also was bound to Wallpool in a Bond of 100 l. Wallpool according to the Custom of London Attachment in London affirmed a Plaint of Debt in the Gulldhall London against the said King upon the said Bond of 100 l. and attached the debt due by himself to Wallpool in his own hands and now King sued Execution against the said Wallpool upon the said Recognizance and Wallpool upon the matter of Attachment brought an Audita querela and prayed allowance of it and by Gawdy Serjeant such a Writ was allowed in such case 26 Eliz. Anderson at the first doubted of it but at last the Court received the said Writ de bene esse and granted a Supersedeas in stay of the Execution and a Scire facias against King but ea lege that Wallpool should find good and sufficient Sureties that he would sue with effect and if the matter be found against him that he pay the Execution CCCCVIII Hill. 28 and 29 Eliz. In the Common Pleas. A Copy-holder with license of the Lord leased for years Copyholder Surrender Hob. 177. 1 Roll. 294 3 Len. 197. and afterwards surrendred the Reversion with the Rent to the use of a stranger who is admitted accordingly It was moved if here need any Attornment either to settle the Reversion or to create a Privity and Rhodes and Windham Iustices were of opinion that the surrender and admittance are in the nature of an Inrolment and so amount to an Attornment or at least do supply the want of it CCCCIX. Ruddall and Millers Case Mich. 28 Eliz. In the Common Pleas. Devise IN Trespass the Case was this William Ruddall Serjeant at Law 18 H. 8. made a Feoffment in Fee to divers persons to the use of himself and his Heirs and 21 H. 8. declared his Will by which he devised his Lands to Charles his younger Son and to the Heirs Males of his body the Remainder to John his eldest Son in Fee upon condition That if Charles or any of his issue should discontinue or alien but only for to make a Ioynture for their wives for the term of their lives that then c. and died The Statute of 27 H. 8. came Charles made a Lease to the Defendants for their lives according to the Statute of 33 H. 8. And levied a Fine with Proclamation Sur Conusans de droit come ceo c. to the use of himself and his wife and the heirs Males of their two bodies begotten the Remainder to himself and the heirs Males of his body the Remainder to the right heirs of the Devisor John the eldest Son entred for the Condition broken upon the Defendants who re-entred upon which Re-entry the Action was brought Gawdy Fleetwood and Shuttleworth Serjeants for the Plaintiffs This Condition to restrain unlawful discontinuance is good Conditions as a Condition to restrain Wast or Felony See 10 H. 7. 11. 13 H. 7. 23. And before the Statute of Quia Emptores terratum If A. had enfeoffed B. upon Condition That B. nor his heirs should alien the same was a good Condition by Fleetwood which was granted per Curiam And this Condition was annexed to good purpose or the Serjeant well knew that Cestuy que use might have levied a Fine or suffered a Recovery by the Statutes of 1 R. 3. 4 H. 7. And this Condition annexed or tied to the use by the Will is now knit to the possession which is transferred to the use by the said Statute Although it may be objected that the Condition was annexed to the use and now the use is extinct in the possession and by consequence the Condition annexed unto it as where a Seignory is granted upon Condition and afterwards the Tenancy escheats now the Seignory is extinct and so the Condition annexed to it But as to that it may be answered That our Case cannot be resembled to the Cases at Common Law but rests upon the Statute of 27 H. 8. scil Cestuy que use shall stand and be seised deemed and adjudged in lawful seisin estate and possession of and in such Lands to all intents constructions and purposes in Law of an in such like estates as he had in the use and that the estate right title and possession that was in the Feoffee shall be clearly deemed and adjudged to be in Cestuy que use after such quality manner form and condition as he had in the use And therefore in the common assurance by bargain and sale by Deed enrolled if such assurance be made upon Condition As in case of Mortgage the possession is not raised by the Bargainee but by the Bargain an use is raised to the Bargainee and the possession executed to it by the Statute and the Condition which was annexed to the use only is now conjoyned to the possession and so it hath been adjudged So if the Feoffees to use before the Statute had made a Lease for life the Lessee commits Wast the Statute comes now Cestuy que use which was shall have an Action to Wast as it was ajudged in Iustice
be taken or comprehended under the name of a Benefice having Cure of Souls in any Article above specified CCCCXLIII Pasch 30 Eliz. In the Kings Bench. Aâ—iâ—d ONe was bounden to stand to the award of two Arbitrators who award that the party shall pay unto a stranger or his assigns 200 l. before such a day the stranger before the day dieth and B. takes Letters of Administration and if the Obligor shall pay the mony to the Administrator or that the Obligor should be discharged was the Question and it was the opinion of the whole Court that the mony should be paid to the Administrator for he is Assignee and by Gawdy Iustice If the word Assignee had been left out yet the payment ought to be made to the Administrator quod Coke affirmavit CCCCXLIV Pasch 30 Eliz. In the Kings Bench. ONe sued in the Kings Bench for Costs given upon a Suit depending in the Hundred Court and the sum of the Costs was under 40 s. and the Plaintiff declared Steward That at the Court holden before the Steward secundum consuetudinem Manerii praedict It was objected that the Steward is not Iudge in such Court but the Suitors to which it was answered by the Iustices That by a Custom in a Hundred Court a Steward may be Iudge and so it hath been holden and here the Plaintiff hath declared upon the Custom for the Declaration is secund consuetudinem Manerii also the Subject may sue here in the Kings Bench for a lesser sum than 40 s. as if 10 s. Costs be given in any Suit here Suit to such costs lieth here in this Court. CCCCXLV Pigot and Harringtons Case Mich. 30 31. Eliz. In the Kings Bench. PIgot brought a Writ of Error upon a Fine levied by him within age Error 1 Cro. 11. the Case was That the Husband and Wife were Tenants for life the Remainder to the Infant in Fee and they three levied a Fine and the Infant only brought the Writ of Error It was objected by Tanfield that they all three ought to joyn in this Writ and the Husband and Wife ought to be summoned and severed Atkinson contrary for here the Husband and Wife have not any cause of action but the Infant only is grieved by the Fine 35 H. 6. 19 20 21 c. In conspiracy against many it was found for the Plaintiff and one of the Defendants brought Attaint and assigned the false oath in omnibus quae dixerunt but afterwards abridged the assignment of the false oath as to the damages and so the attaint well lies Two women are Ioynt-tenants they take Husbands the Husbands and their Wives make a Feoffment in Fee Attaint the Husbands dye the Wives shall have several Cui in vita's for the coverture of the one was not the coverture of the other 7 H. 4. 112. In Appeal against four they were outlawed and two of them brought Error upon it and good 29 E. 3. 14. In Assize against three Coparceners they plead by Bailiff nul tenent de Franktenement c. and found that two of them were disseisors and Tenants and that the third had nothing and afterwards the three Coparceners brought attaint and after appearance the third Sister who was acquit was nonsuit and afterwards by Award the Writ did abate Tanfield Although that the cause be several yet the erronious act was joynt and the receiving of the Fine and that Record being entire ought to be pursued accordingly and then the Husband and Wife shall be summoned and severed and it is not like to the case of 29 E. 3. cited before for there the third coparcener had not any cause of attaint for no verdict passed against her Wray As the Error is here assigned the Writ is well brought for the Error is not assigned in the Record but without it in the person of the Infant Fine upon an Infant reversed and that is the cause of the Action by him and for no other Two Infants levy a Fine although they joyn in Error yet they ought to assign Errors severally and they may sue several Writs of Error and afterwards it was holden by the Court that the Writ was good and the Fine reversed as to the Infant only CCCCXLVI Scovell and Cavels Case Mich. 30 31. Eliz. In the Kings Bench. IN Ejectione firmae by Scovell against Cavel Leases 1 Cro. 89 the Declaration was general upon a Lease made by William Pain and it was found by special verdict That William Leversedge was seised of the Lands c. and leased the same to Stephen Cavel John Cavel and William Pain habend to them for their lives and for the life of the survivor of them Provided always and it was covenanted granted and agreed betwixt the parties that the said John Cavel and William Pain should not take any benefit profit or commodity of the Land during the life of Stephen Cavel and further that the said William Pain should not take any benefit c. during the life of John Cavel c. Stephen Cavel died John Cavel entred and afterwards William Pain entred and made the Lease to the Plaintiff upon whom the Defendant entred and if the Entry of William Pain were lawful was the Question Gawdy Serjant his Entry is not lawful It will be agreed That if a man lease to three for their lives they are Ioynt-tenants but if by the habendum the estate be limited to them by way of Remainder the joynt estate in the Premises is gone and the Land demised shall go in Remainder and I agree that in deeds Poll the words shall be taken strong against the grantor contrary in the Case of Indentures the words there shall be taken according to the intent of the parties for there the words are the words of both See Browning and Beestons Case 2. and 3. Ma. Plowd 132. where by Indenture the Lessee covenanted to render and pay for the Land Leased such a Rent the same is a good reservation although it be not by apt words and here in our Case this Proviso and Covenant Grant and Agreement doth amount to such a limitation by way of Remainder especially when such a clause followeth immediately after the Habendum Coke contrary The Office of the Habendum is to limit and explain the estate contained in the premises and here the Habendum hath done its Office and made it a joynt estate and therefore the Clause afterward comes too late and in truth is repugnant and utterly void as to such purpose but perhaps an action of Covenant lies upon it Wray It hath been by me adjudged if a Lease be made to three Habendum successive the same is a void word and the Lessees are joynt-tenants contrary of Copyhold by reason of Custom and here the proviso and the clause following is contrary to the Habendum and repugnant and so void as to the dividing of the estate by way of Remainder which Gawdy Iustice granted Heale
Serjeant this case hath been adjudged 16 Eliz. A Lease to three Habendum to the use of the first for life and after to the use of the second for life and after to the use of the third for life the same is good Clench Iustice this proviso follows the Habendum and is a sentence to explain the sentence Wray Shute it is another sentence although it immediately follows the Habendum Clench if the words had been provided that although it be limited ut supra in the Habendum scil the first named shall have the Lands to himself for life c. it had been good by way of Remainder Wray Our case at Bar is not that any person shall take the Remainder but that any of them shall not take the profits during the life of the other Tanfield took exception to the verdict because the life of Pain is not found in the verdict Coke this is a verdict and no pleading and the opinion of the Court was that the verdict was good notwithstanding the said Exception and afterwards Iudgment was given for the Plaintiff CCCCXLVII Hudson and Leighs Case Mich. 30 31. Eliz. In the Kings Bench. Appeal of Maheim 4 Co. 43. RObert Hudson brought an appeal of Mayhem against Robert Leigh for maiming his right hand and for cutting of his veins and sinews which by that means are become dry so as thereby he hath lost the use of his fingers To which the Defendant pleaded that heretofore the Plaintiff had brought against him an Action of Assault and Battery and wounding and therein had Iudgment to recover and Execution was sued forth by Scire facias and satisfaction acknowledged upon Record Damages of 200 Marks assisted by the Iury for the damages and 11 l. 10 s. de incremento by the Court with averment of all identities Cooper Serjeant the same is a good Bar and although that an Appeal and an Action of Trespass are diverse Actions in nature and in many circumstances yet as to the recovery of Damages the one shall bind the other See 38 E. 3. 17. a good case In Trespass for breaking of his Close and Battery the Defendant pleaded that before that the Plaintiff by Bill in the Marshalsey hath recovered his Damages for the same Trespass c. and vouched the Record and the Record was sent the which was varying from the Record pleaded for the Record vouched was only of Battery without any thing of breaking of the Close and also the Battery is taxed at another day c. and with averment yet as to the Battery it was holden good enough with averment and as to the breaking of the Close the Plaintiff had Iudgment See 41 E. 3. brev 548. 12 R. 2. Coronae 110. and the Case betwixt Rider Plaintiff and Cobham Defendant Pasch 19 Eliz. Rot. 74. it was clearly holden and adjudged that after a Recovery in Trespass an Appeal of Maheim doth not lie and the Book which deceives the Plaintiff is 22 E. 3. 82. where it is said by Thorp That notwithstanding Recovery in Appeal of Maheim yet he may after recover in Trespass but Non dicite contra Popham contrary the Plea in Bar is not good for the Averment is that the stroke and the wounding supposed in the Writ of Trespass and in his Appeal of Maheim are all one but it is not averred that any damages were given for the Maheim or that the Maheim was given in Evidence for it might be that there was not any Maheim when the Trespass was brought but that after by the drying of the wound it became a Maheim and then the Action did rise as if a man upon a Contract promiseth to pay me 10 l. at Michaelmas and other 10 l. at Christmas if he doth not pay the 10 l. at Michaelmas I may have an Action upon the promise for the not payment of that 10 l. and afterwards I may have another Action and recover damages for the not payment of the 10 l. at Christmas but if I do not begin any Action before Christmas I cannot recover damages but once for the whole promise and damages shall be given in Evidence and if I be disseised I may recover damages for the first Entry and notwithstanding that I shall have an Assise and if I do reenter I shall have Trespass and recover damages for the mean profits Ante 302. and the damages recovered for the first Entry shall be recouped and the Book cited before Fitz. Coronae 110 doth not make for the Defendant but rather for the Plaintiff for there it is averred that the Maheim was given in Evidence in the Action of Trespass which it is not in our Case Egerton Solicitor we have shewed That succisio venarum in this appeal specified is eadem succisio vulneratio mentioned in the Trespass Coke Although the identity of the wounding and cutting of the veins are averred yet it is not averred that the damages recovered in the Trespass were given for this Maheim Wray chief Iustice The Iurors are to take consideration of the wound in an action of Trespass and to give damages according to the hurt and we ought to think that they have done accordingly and if they have not so done the party may pray that the Court by inspection would adjudge upon it and so increase the damages But now when the Iury hath given great damages scil 200 Marks with which the party hath been contented it should be hard to give the Plaintiff another Action and if there be any such special matter that it was not become a Maheim at the time of the Action of Trespass brought but it is become a Maheim of later time by drying the Plaintiff ought to have shewed the same to the Court and so have helped himself for otherwise it shall not be so intended but that the averment made by the Defendant is good enough to oust the Plaintiff of this Action and the Iudgment cited 19 Eliz. before was given by me after I was constituted chief Iustice and this Bar as I conceive was drawn out of the pleading in 19 Eliz. and afterwards Iudgment was given against the Plaintiff CCCCXLVIII Crosman and Reads Case Mich. 30 31 Eliz. In the Kings Bench. Intermarriage 1 Cro. 114. THe Case was that I.S. made his wife his Excutrix and dyed I. D. being then endebted to the Testator in sixty pounds upon a simple Contract the Wife Executrix took to Husband the said I.D. I.D. made his Executor and dyed a Creditor of I.S. brought an Action of Debt against the Wife Executrix of I.S. and upon the pleading the matter in question was Debt by Executors If by the entermarriage of the wife with the Debtor of the Testator the same was a Devastavit or not And if the said Debt of sixty pounds due by I.D. should be Assets in her hands And per Curiam It is no Devastavit nor Assets as is supposed For the woman may have an
Bench. WIlliam Wade brought an Action of Debt against Presthall the Defendant pleaded That he was attainted of Treason Debt Ante 326. not restored nor pardoned and demanded Iudgment if he should be put to answer upon which the Plaintiff did demur It was argued for the Plaintiff that the Plea is not good for the Defendant shall not take benefit of his own wrong A person attainted gives his goods Plea in disability of himself not aâ—loâ—ed he shall not avoid it A Woman takes a Husband thereby she hath abated her own Writ It is true That a person attainted is a dead man it is so as to himself but not as to others 33 H. 6. a person attainted is murdered his Wife shall have an Appeal so as to all respects he is not dead and although as yet the Plaintiff cannot have any Execution against the Defendant yet here is a possibility to have Execution if the Defendant get his pardon As a man shall have Warrantia Chartae although he be not impleaded and yet cannot have Execution but there is a possibility to have Execution 22 E. 3. 19. A Rent granted to one in Fee upon condition that if the Grantee die his heir within age that the Rent shall cease during the nonage the Grantee dieth his heir within age his Wife brought Dower presently and recovered and yet she cannot have Execution but yet there is a possibility to have Execution viz. upon the full age of the heir Coke contr By his Attainder he hath lost his Goods Lands Life Degree for he is now become Terrae filius and he cannot draw blood from his Father nor afford blood to his Son or his posterity so as he hath neither Ancestor nor Heir and as to the possibility the same is very remote for the Law doth not intend that he shall be pardoned and see 6 H. 4 64. A man committed a Felony and afterwards committed another Felony and after is attainted of one of them he shall not be put to answer to the other but if he obtain his Charter of pardon he shall answer to the other See also 10 H. 4. 227. tit Coronae Popham Attorney General The Defendant ought to answer for none shall have advantage of his own wrong The Plaintiff is made a Knight pendant the Writ it shall abate because his own Act but here Treasons are so heinous that none shall have ease benefit or discharge thereby And if the Defendant shall not be put to answer until he hath his pardon then the Action is now suspended and an Action personal once suspended is gone for ever and he cited 29 E. 3. 61. in the Book of Assizes where it is said by Sharp Execution upon a Statute may be sued against a man attainted and he said Execution against a person Attainted That if the Enemy of the King comes into England and becomes bounden to a Subject in twenty pounds he shall be put to answer notwithstanding that interest that the King hath in him Harris Serjeant to the same intent he conceived by 33 H. 6. 1. That Traitors are to answer for if Traitors break the Goal the Goaler shall answer for their escape for the Goaler hath remedy against them contrary of the Kings Enemies Burchets Case and he cited the case of one Burchet who being attainted of Treason struck another in the Tower for which notwithstanding his Attainder he was put to answer Egerton Solicitor General And he said That the Action is not suspended but in as much as every Action is used to recover a thing detained or to satisfie a wrong if it can appear that the party cannot be satisfied according to his case he shall not proceed And in this case the Plaintiff if he should obtain Iudgment could not have Execution by the Common Law Ante 213. for he hath no Goods nor by the Statute of Westm 2. by Elegit for he hath no Lands nor by the Statute of 25 E. 3. by his body for it is at the Kings pleasure and then to what purpose shall the Plaintiff sue and it is a general Rule Regula That in all Actions where the thing demanded cannot be had or the person against whom the thing is demanded cannot yield the thing that the Writ shall abate As in a Writ of Annuity by Grantee of an Annuity for years the term expireth the Writ shall abate Abatement of Writ Tenant in special tail brings Wast and pendant the Writ his issue dieth the Writ shall abate c. 2 E. 4. 1. A man Outlawed of Felony pleaded in dis-affirmance of the Outlawry and yet he was not put to answer until he had his pardon and then he shall answer And as to the Case of 33 H. 6. 1. It doth not appear that the Traitors were attainted and then there is good remedy enough And Burchets Case cannot be resembled to our Case for although that by the Attainder the body of the party might be at the Kings pleasure yet his body may be punished for another offence for the example of others And as to Tressels Case who in such case was put to answer I grant it for he concluded Iudgment if Action and so admitted him a person able to answer and then it could not be a good plea in Bar. And in Ognels Case the Retorn of the Sheriff shall bind them for upon Process against a person attainted they returned Cepi where they ought to have returned the special matter without a Cepi but now this general Return shall bind them and by that he shall be concluded to say that the party was not in Execution And this Plea is not any disabling of the Defendant but he informs the Iudges that he is not a person able to answer to the Plaintiff As in a Praecipe quod reddat the party pleads Non-tenure the same is no disabling of his person but a shewing to the Court that he cannot yield to the party his demand A man shall not take advantage of his own wrong i. in the same thing in which the wrong is supposed or against him against whom the wrong is supposed to be done but in other Cases he shall take advantage of his own wrong as Littleton If a Lease for life be made the Remainder over in Fee and he in the Remainder entreth upon Tenant for life and disseiseth him the same is a good Seisin Cases where a man shall take advantage of his own wrong Marbery and Worrals Case upon which he may have a Writ of Right Littleton 112. 35 E. 3. Droit 30. And yet this Seisin was by wrong And there was a Case betwixt Marbery and Worral in the Exchequer The Lessor entred upon his Lessee for life made a Feoffment in Fee with clause of Re-entry the Lessee re-entred the Lessor at the day came upon the Land and demanded the Rent which was not paid it was holden the same is a good demand of the Rent and yet
Lands within the said Town every second year left their Lands to lye fresh and untilled and prescribed further that the Tenants of the Lands within the said Town might erect Herdals in in their Lands with the Licence of the Lord of the said Manor and not otherwise and further declared that the said Bedingfield had let to him the said Manor and that the Defendant had erected Herdals upon his Lands without Licence so as the profit of his Foldage is impaired by it And all this matter was found by Verdict And it was objected in stay of Iudgment that the prescription is not good for it is against Law and common right to abridge the Subject of the profits of his Lands But the whole Court was clear of opinion that the prescription is good enough as 15 E 2. Prescription 51. Prescription to have common appendant in other Land afte that the Hay is cut and v E. 1. Prescription 55. A. seised of Lands may Plow it and Sow it and cut and carry away the Corn and afterwards when the Corn is carried B. by prescription may have the said Land as his several and the other who sowed it cannot meddle with that land but to plow and sow it in season c. And the Cattel cannot eat and pasture in the Land when they come to plow or sow it or to carry it away nor have any profit but the Corn and yet the Free-hold of the Land is in such person c. and that was holden a good Prescription and a difference was taken by the Court where one doth prescribe to take away the whole interest of the Owner of the Land and where a particular profit is restrained And here this prescription doth not extend but to restrain the Ter-tenant to erect Herdals which is a reasonable prescription See 1 H 7 24. The Lord of the Town doth prescribe to have free Foldage of the Beasts of his Tenants in D. and see there that libera Falda is not any other but to hav the Beasts of the Tenants to manure the lands of the Lord c. And afterwards Punsany the Plaintiff had Iudgment to recover XVI Mich. 25 26 Eliz. at Serjeants Inn. IN the Dutchy Chamber the case was that King E 6. leased for years certain lands parcel of his Dutchy of Lancaster rendring rent with clause of re-entry and that a lease was made to one Bunny It was found by Office that the Rent was arrear and by another Office that the Servant of the said Lessee had tendred the rent in his absence and by the commandment of his Master and that afterwards one I. S. Receiver General of the Dutchy received the said Rent and had accounted for it and upon his account it was allowed And this matter was opened at Serjeants Inn in Fleet-street before Wray Anderson Manwood Clench Rhodes Plowden and Stanhop and it was argued by Shuttleworth that in this case of rent reserved upon a Lease for years made by the King of Dutchy-Land The King not bound to demand Rent the King is not bound to demand it but he may for default of payment of it re-enter without demand and that the Lessee is tied to tender it at his peril as well as if the Queen had been seised of the said land in the right of her Crown and as to that payment the Statute of 1 H 4. is to be considered by which it is enacted that the possessions of the said Dutchy Taliter tali modo per tales officiarios ministros in omnibus remaneant deducantur gubernentur sicut remanere deduci gubernari debuissent si ad culmen Regis Dignitatis assumpti non fuissemus and these words ought to be intended of things which concern the Lands themselves but this Act of demand is a personal thing and concerns the person of the King and toucheth the Majesty and dignity of the King and in all cases of the Dutchy the person of the King shall hold his priviledge notwithstanding that the possession of the Land be carried in the course of a private person And therefore if the Queen will alien Lands parcel of her Dutchy she ought to make Livery for now she meddles with the possession it self but if the Queen will sue for parcel of her Dutchy non omittas shall be in the Writ for she cannot sue but as Queen and the Queen hath such Prerogative that none shall execute her Writs at her own sute but the Officer of the Crown 21 E 4. 60. for Livery if it be not Land within the County Palatine and for the residue See 10 H. 4. 7. 3. Eliz. 216 217. Plowden Lessee for years of Lands of the Dutchy shall have aid of the King before Issue joyned c. And if the King make a Feoffment of Lands of his Dutchy out of the County Palatine to hold of him in Capite the Feoffee shall hold it so and a Feoffment of such Lands upon condition that the Feoffee shall not alien is a good condition and Lapses shall not bind the Queen in case of an Advowson which the Queen hath in the right of the Dutchy and if the Villain of the Queen in the right of the Dutchy purchaseth Lands in Fee and aliens yet the Queen shall seise and that hath been adjudged in the Exchequer Chamber and if the Queen make a Lease of such Land and afterwards makes another Lease of the same Land without recital of the first Lease it hath been adjudged that the second Lease is void It was argued contrary by Beamount the younger that this condition which goeth to the realty to reduce the Land again ought to be ordered and governed by the Queen as it ought to be by a Subject and therefore if the Queen will take advantage of this condition she ought to make a Letter of Attorney under the Dutchy Seal to her own Officer authorizing him thereby to make demand of the said Rent c. And by Shuttleworth here be two Offices the one contrary to the other the best shall be taken for the Queen 14 E 4. 5. in Skreens Case in the end of it And if the Rent of the Kings Farmor be behind now although that after the Receivor of the Dutchy doth receive it yet the same doth not purge the forfeiture as if the Bayliffs of a Manor receive rent of a new Feoffee the same will not change the Avowry of the Lord without notice given to him 41 E 3. 26. And if a Copy-hold escheat the Steward without a special Warrant cannot grant it over de novo XVI Rearsbie and Rearsbies Case Intrat Trinit 25 Eliz. rot 746. Mich. 25 and 26 Eliz. in the Kings Bench. REplevin by W. Rearsbie against A. Rearsbie and L. Rearsbie who avow the distress because that one W. Vavasour was seised of the Manor of Deniby whereof the place where c. is parcel in his Demesne as of Fee and so seised gave the said Manor to
Eliz. In the Common Pleas. Debt KYnter brought debt upon an Obligation the condition was that whereas the Plaintiff had bought of the Defendant a Ship if then the Defendant shall enjoy the said Ship with all the furniture belonging to the same without being disturbed for the said Ship or any furniture appertaining to it that then c. and the Case was that after the sale of the said Ship a stranger sued the Plaintiff for certain monies due for certain Ballast bought by the Defendant for the same Ship and put into the said Ship before the sale of it and in the said suit the Plaintiff obtained a Iudgment and Execution and thereupon the said Ship was seised and all the matter was if Ballast be furniture of a Ship or not And it was moved by Serjeant Gawdy that it was for Ballast is as necessary to a Ship as a Sail but the Court was against him for somtimes a Ship may sail without Ballast for it may be laden with such Merchandizes which are convenient Ballast in themselves as Coals Wheat c. Periam at the first doubted of it and by him if I be bound upon condition ut supra I am bound to deliver the Guns being in it at the time of the sale but yet he conceived that the Plaintiff should be barred because he had not specially shewed that at the time of the sale the Ballast was in the Ship. LX. Pendleton and Gunstons Case Mich. 28 29 Eliz. In the Common Pleas. PEndleton informed against Gunston upon the Statute of 13 Eliz. Cap. 5. for that where the said Pendleton had before brought a plaint of Debt against I.S. in the Guild-Hall of Norwich upon which issued out of the said Court an Attachment against the said I.S. by which the Sheriff of Norw being ready by virtue of the said process to attach the said I. S. by his goods there the now Defendant in disturbance of the said process and the execution of it did publish and shew to the Sheriff a conveyance by which he claimed the said goods as conveyed to him by the said I. S c. and averred the fraud c. and it was moved by Serjeant Snagg that the matter of which the Defendant is charged is not within the said Statute because the avowing of the said conveyance doth not go in delay of the execution for no Iudgment is given but only in delay of process but the Court was clear of opinion to the contrary and that by reason of the Statute and the words of it scil delay hinder or defraud Creditors of their just and lawful Actions sutes c. for here is a delay for want of serving the said Attachment the Appearance of I.S. to the sute of the Plaintiff is delayed which mischief is within the remedy of the said Statute And Periam and Rhodes Iustices conceived that such avowing of such conveyance where no sute is depending is within the said Statute which Anderson doubted See the pleading of this Case reported in the second Book of Entries 207 208. 30 Eliz. per quod secta impedita fult c. LXI Mich. 28 29 Eliz. In the Common Pleas. FEnner Serjeant moved this Case 4 Len. Alien Purchasor An Alien purchaseth Lands in Fee The Queen confirms it to the Alien Office is found if the confirmation shall bind the Queen and it seemed to some that it should for by the Lord Anderson Confirmation when an Alien is enfeoffed he receiveth by the Livery the Fee-simple of which he shall be seised until Office be found and a Praecipe quod reddat lyeth against him And by Fenner an Alien and Denizen Ioynt-tenants are disseised they both shall joyn in Assize vide 11 H. 4. 26. and by him the Kings Nief being an Inheritrix takes a Husband and hath issue Office is found the Husband shall be Tenant by the Curtesy which see 33 E. 3. Traverse 36. It was argued of the other side that the estate of the Alien is so feeble that a confirmation cannot enure upon it for an Alien cannot take but to the use of the King and cannot be enfeoffed to another use and if he be such use is void for there is not a sufficient seisin in the Alien to carry an use And it hath been adjudged in the Case of one Forcet that where an Alien and the said Forcet were Ioynt-purchasors and the Alien died Forcer had not the whole by the Survivor but that upon an Office found the Queen should have the moyety See Dyer 11 Eliz. 283. LXII Sir Roger Lewknor and Fords Case Mich. 28 29 Eliz. In the Common Pleas. 1 Cro. 17. Co. 5. Rep. 12. b. SIr Roger Lewknor seised of the Manor of Wallingford leased the same to A. for years and died after which it was Enacted by Parliament That the said Manor should from henceforth be deemed and reputed in the Heirs of the body of the said Sir Roger begotten upon Eliz. his Wife the said Sir Roger having three Daughters only without any other issue The Daughters married Husbands and had issue A. assigned his enterest in the said Manor to B. C. and D. and also to one Shelley B.C. and D. assigned their interest to one Sponer one of the Defendants and Shelly assigned his fourth part to Ford another of the Defendants excepting the Woods and Vnderwoods Wast is committed one of the Daughters having issue dieth living her Husband the two surviving Sisters and their Husbands the Term being expired brought a Writ of Wast leaving out the Husband of the third Sister who was Tenant by the Curtesy against Shelley and Sponer who Tenuerunt Shuttleworth Serjeant took Exception to the Writ scil praedictus Rogerus cujus haeredes ipsae funt which shall be intended Heirs general and by the Declaration it appeareth that the Daughters have to them by Act of Parliament an especial inheritance as Heirs in special tail and that by a special conveyance and therefore the Plaintiffs ought to have brought a special Writ according to their Case as where Cestuy que use maketh a lease for years by the Statute of 1 R. 3. and the Lessee committeth Wast now the Feoffees ought to have a special Writ of Wast according to their Case 26 H. 8. 6. but that exception was disallowed and the case cited out of 6 H. 8. is upon another reason for in such case the estate of the Lessee for years is created by the said Statute Another Exception was taken to the Writ for the Writ is tenuerunt which shall be intended prima facie conjunctim tenuerunt and in the Declaration it appeareth that one of the Defendants is assignee of three parts of the Lands demised and the other Defendant of the fourth part and so separatim tenuerunt but that Exception was also disallowed because originally it was one and intirely demised interest and estate and so it remaineth as to the Plaintiffs although it be devised by the Lessee himself
as in case where the Husband died seised Dy. 370. the which dying seised is not found by the Verdict In which Case it was said by the Court the Demandant might pray Iudgment of the Lands and release damages or the Demandant may aver that the Husband died seised and have a Writ to enquire of the damages quod omnes Pregnotarii concesserunt CXIX Michel and Hydes Case Mich. 29 30 Eliz. In the Common Pleas. Dower DOwer by Michel and his Wife against Lawrence Hyde who appeared upon the grand Cape And it was because that the said Hyde in truth was but Lessee for years of the Land of which c. in which case he might plead non-tenure if now he might wage his Law of non-summons so as the Writ be abated for by the wager of Law he hath taken upon him the Tenancy and affirmed himself to be Tenant 33 H. 6. 2. by Prisoit to which it was said by Rhodes and Windham Iustices that here the Tenant being but Lessee for years is not at any mischief for if Iudgment and Execution be had against him he notwithstanding might afterwards enter upon the Demandant Another matter was moved That where the Writ of Dower was de tertia parte Rectoriae de D. and upon that the grand Cape issued Cape in manum nostram tertiam partem Rectoriae and the Sheriff by colour of this Writ took the Tythes severed from the nine parts and carried them away with him And it was agreed by the said Iustices that the same is not such a seisure as is intended by the said Writ but the Sheriff by virtue of such Writ ought generally to seize but leave them there where he found them And the Court was of opinion to commit the Sheriff to Prison for such his misdemeanor CXX Hamington and Ryders Case Mich. 29 30 Eliz. In the Common Pleas. RIchard Haming Executor of Isabel Haming brought Debt upon an Obligation against Ryder Debt Savil Rep. 74. Owen Rep. 6. 1 Co. 52. 1 Andâ— 162. the Case was that Kidwelly was seised leased for years to John Hamington Husband of Isabel and afterwards John Hamington being so possessed by his will devised that the said Isabel should have the use and occupation of the said Land for all the years of the said Term as she should live and remain sole and if she died or married that then his Son should have the residue of the said Term not expired John died Isabel entred Devises to whom the said Lawr. coveyed by Feoffment the said Land in Fee and in the Indenture of the said Conveyance Lawr. covenanted that the said Land from thence should be clearly exouerated de omnibus prioribus barganijs titulis juribus omnibus alijs oneribus quibuscunque Isabel took to Husband the Son entreth If now the Covenant be broken was the question It seemed to Anderson at the first motion that this possibility which was in the Son at the time of the Feoffment was not any of the things mentioned in the Covenant scil former bargain title right or charge But yet it was conceived by him that the word bargain did extend to it for every Lease for years is a contract and although that the Land at the time of the Feoffment was not charged yet it was not discharged of the former contract And by Windham if I be bounden in a Statute-staple and afterwards I bargain and sell my Lands and covenant ut supra here the Land is not charged but if after the condition contained in the defeazance be broken so as the Conusee extends now the Covenant is broken And by him the word charge doth extend to a possibility and this possibility might be extinct by Livery as all agreed but not translated by grant Ante 33. 3 Len. 43. Covenant or extinguished by release as it was lately adjudged in the Case of one Carter At another day it was argued by Walmesley and he much relied upon the words clearly exonerated utterly discharged or altogether exonerated and without doubt it is a charge which may happen and if it may happen then the Land is not clare exonerated And also former bargains do extend to it and the Term is not extinct by the acceptance of the Feoffment aforesaid of Kidwelly and although that at the time of the Feoffment it was but a possibility and no certain interest yet now upon the marriage of Isabel it is become an actual burthen and charge upon the Land and he cited a Case adjudged 8 Eliz. A man seised of Lands grants a Rent-charge to begin at a day to come before which day he bargains and sells the Lands and covenants that the said Lands are discharged of all charges in that case when the day when the Rent ought to begin is incurred the Covenant is clearly broken for the Lands were not clearly exonerated c. At another day the Case was moved at the Bar. And Anderson openly in Court declared that he and all his companions were agreed that the Land at the time of the Feoffment was not discharged of all former Rights Titles and charges and therefore commanded that Iudgment should be entred for the Plaintiff CXXI Howel and Trivanians Case Hill. 30 Eliz. In the Kings Bench. HOwel brought an Action upon the Case against Trivanian in the Common Pleas and declared Assumpsit that he delivered certain goods to the brother of the Defendant who made the Defendant his Executor and died after which the Plaintiff came to the Defendant and spake with him concerning the said goods upon which communication and speech the Defendant promised the Plaintiff that if the Plaintiff could prove that the said goods were delivered to the Testator 2 Roll. 594. that he would pay the value of them to the Plaintiff And the Declaration was in consideration that the said goods came to the hands of the Testator and also afterwards the goods came to the Defendants hands and upon non Assumpsit pleaded It was found for the Plaintiff and Iudgment given And afterwards Error was brought in the Kings Bench and Error assigned because that the Plaintiff had not averred in his Declaration that he had proved the delivery of the said goods to the said Testator 1 Cro. 105. for the words of the promise are si probare potuisset And also it was assigned for Error that here is not any consideration upon which this promise could receive any strength for the Defendant hath not any profit or advantage thereby scil by the bailment of the said goods to the Brother of the Defendant And also it is a thing before executed and not depending upon the promise nor the promise upon it As the Case reported by the Lord Dyer 10 Eliz. 272. The Servant is arrested in London and two men to whom the Master is well known bail the said Servant and after the Master promiseth to them for their friend-ship to save them harmless from all costs
the custom might be known Also it appeareth here upon the Declaration that Trespass vi armis should lye and be brought for the Declaration is that the Defendant did break and pull down the Herdels which cannot be without express force as 42 E. 3. 24. Trespass upon the case against a Miller and declared that the Plaintiff used to grind at the said Mill without Toll and that he sent his corn to the said Mill to be ground and there the Defendant came and took two Bushels of his said corn And the Writ was upon the prescription to grind sine multura and that the Defendant praedict querent sine multura molire impedivit and by Award of the Court the Plaintiff took nothing by his Writ for he hath declared that the Defendant hath taken Toll and therefore he ought to have a general Writ of Trespass Beaumont to the contrary A Market is as well for the common Wealth as a Fishing Also he is at the costs for providing of Herdels and the erecting of them so as he hath declared he hath taken divers sums of mony for it and as to any sum not certain it is well enough for peradventure sometimes he hath taken a penny sometimes two pence as the parties could agree And as to the exception of vi armis the same is not material for the Plaintiff doth not rely upon the pulling down of the Herdels only but upon the loss of the mony also which he should have had if the Defendant had not broken his Herdels And afterwards Iudgment was given for the Plaintiff CXLVIII Beverly and Bawdes Case Pasch 30 Eliz. In the Kings Bench. BEverly brought a Writ of Error to reverse an Out-lawry pronounced against him at the suit of one Bawdes and shewed Error that he was outlawed by the name John Beverly of Humby in the County of Lincoln Gent. And that within the said County there are two Humbyes scil Magna Humby Parva Humby and none without addition To which it was said of the other side that the truth is that there are two such Towns and that Humby Magna is known as well by the name of Humby only as taken for the name of Humby Magna And upon that they are at Issue And it was moved Tryal by Inquest of what County or place if the Inquest to try this Issue shall come de corpore comitatus or from Humby Magna And by Cooke it shall be tryed by an Inquest of Humby Magna and he confessed that if the Issue had been No such Town then the Inquest ought to be of the body of the County but here is another Issue to be tryed 22 E. 4. 4. In Trespass done in Fulborn and Hinton in the County of C. The Defendant said that there is no such Town nor Hamlet of Hinton within the same County Iudgment of the Writ See there by Briggs the tryal shall be de corpore comitatus See 14 H. 6. 8. Over-dale and Nether-dale and none without addition and so at Issue tryed by them of the body of the County 35 H. 6. 12. And by him wheresoever an Issue may be tryed by an Inquest out of a special Visne there it shall never be tryed by the body of the County As the case before 22 E. 4. Trespass in two Towns A. and B. The Def. as to A. pleads there was no such Town and as to B. pleaded another plea. Now the whole Inquest shall come out of B. for the Inquest in one Town may try any thing within the same County which see Fitz. Visne 27. 22 E. 4. 4. And here in our case the Issue is if Humby Magna be as well known by the name of Humby only as by the name of Humby Magna And therefore the same may well be tryed by Inquest out of the Town of Humby Magna But by Wray Iustice this Issue doth amount to no such Town for the perclose of the plea is and no Humby without addition and the book cited out of 22 E. 4. is not ruled but is only the opinion of Brian and afterwards it was awarded that the tryal was well Another matter was objected because it is not shewed in the Writ of Error betwixt what parties the first Writ did depend for otherwise how can the Plaintiff in the Writ of Error have a Scire facias ad audiendum Errores if none be named in the Writ of Error against whom it shall issue And Godfrey affirmed that upon search of Presidents it was both ways so as it is at the pleasure of the Plaintiff to do it or not And Kemp Secondary shewed divers Presidents to that purpose And afterwards the Out-lawry was reversed CXLIX Cibel and Hills Case Pasch 30 Eliz. In the Common Pleas. Debt for a Nemine pene A Lease was made of a certain House and Land rendring Rent and another sum Nomine poenae and for the Nominae poenae the Lessor brought an Action of Debt The Lessee pleaded that the Lessor had entred into parcel of the Land demised Roll. Tit. Extinguishment upon which they were at Issue and found for the Plaintiff and now the Lessor brought Debt for the Rent reserved upon the same Lease to which the Defendant pleaded ut supra scil an Entry into parcel of the Land demised And issue was joyned upon it And one of the Iury was challenged and withdrawn because he was one of the former Iury And the Issue now was whether the said Cibel the Lessor expulit amovit adhuc extra tenet the said Hills And to prove the same it was given in Evidence on the Defendants part that upon the Land demised there was a Brick-kill and and thereupon a little small cottage and that the Lessor entred and went to the said cottage and took some of the Bricks and untiled the said cottage Suspension of Rent by entry upon part of the Land. But of the other side it was said that the Lessor had reserved to himself the Bricks and Tiles aforesaid which in truth were there ready made at the time of the Lease made and that he did not untile the Brick-kill house but that it fell by tempest and so the Plaintiff did nothing but came upon the Land to carry away his own goods And also he had used the said Bricks and Tiles upon the reparation of the house And as to the Extra tenet which is parcel of the Issue the Lessor did not continue upon the Land Hob. 326. Rolls ubi supra Post 172. but went off it and relinquished the possession But as to this last point it seemed to the Court that it is not material if the Plaintiff continued his possession there or not for if he once doth any thing which amounts to an Entry although that he depart presently yet the possession is in him sufficient to suspend the Rent and he shall be said extra tanere the Defendant the Lessee until he hath done an Act which doth
Close of wood called Frith-Close but as to the Park for the Defendant for that Frifth-Close was all excepted scil the wood and the soil And these words supra praemissa shall be intended such things which were demised and no other and by this Covenant Dy. 199. Hob. 173. 2 Cro. 172. Bridg. 117. the Lessee hath power to take the wood upon the other Lands although that the wood be excepted for the soile was demised and he shall not be punished in Trespass and put to his remedy by Action of Covenant against the Lessor And by Wray there is not any colour against the Plaintiff for the Frith-Close if not that the Defendant had averred that there is not any wood upon the other Lands not excepted but demised And this word Praemissa doth not extend by construction to this mentioned before being excepted but only to the things demised CLIX. Rivett and Rivetts Case Trin. 30 Eliz. In the Kings Bench. EDmund Rivett brought an Action upon the Case against Geoge Rivett and declared that where it was pretended by the Defendant that one R. made his Will and by the same devised certain Legacies to the Defendant and the Plaintiff upon that had sued in the Prerogative Court of Canterbury for to disprove the said Will And if he prosecutus fuisset he might have disproved the said Will and so defeated the Defendant of his pretended Legacies Assumpsit Owen 133 134. The Defendant in consideration that the Plaintiff ultra non procederet did promise to give to the Plaintiff one hundred pounds and averred that he had surceased his said suit And further declared that licet the Defendant ad hoc requisitusfuerit tali die anno c. It was moved in arrest of Iudgment that here is not any consideration for the Defendant hath not any means to compel the Plaintiff for to surcease his suit for there is not any cross promise set forth in the Declaration And although that he doth surcease his suit yet he may begin the same again and therefore the Plaintiff ought to have shewed in his Declaration a Release or other discharge of it as the case was 3 Eliz. reported by Bendloe A. was bound unto B. in twenty pounds and afterwards A. promised B. that in consideration the said A. should not be damnified by reason of the said Bond to give the said B. ten pounds and upon that promise B. brought an Action upon the Case and shewed that the Defendant was not damnified by reason of the said Bond. But it was adjudged that the Action was not maintainable upon that matter because that the Plaintiff did not shew in his Declaration that he had released or otherwise discharged the Defendant of the said Bond and so no consideration in the case Request Another Exception was because the request is not layed certainly but generally licet requisitus and doth not say by whom he was required or what thing to do And afterwards a Precedent was shewed Trinit 28 Eliz. rot 523. betwixt Smith and Smith An Assumpsit in consideration that the Plaintiff should not implead the Defendant upon Bond And the Plaintiff had Iudgment to recover And as to the request it ws said by Kempe that there are many Precedents that a Request generally layed is sufficient And afterwards in the principal Case Iudgment was given for the Plaintiff CXL Wheeler and Twogoods Case Trin. 30 Eliz. In the Kings Bench. WHeeler brought an Ejectione firmae against Twogood and it was found by special verdict that the Earl of Oxford was seised of the Manor of Hornely in which were divers Copy-holds And that the said Earl leased the said Manor to one Heywood for one and twenty years to begin two years after Except all casualties and profits of Courts which severally did not pass the value of six shillings eight pence And afterwards the Earl bargained and sold the Reversion to Anthony Cage And afterwards a composition was made betwixt Anthony Cage and the Lessee by which the Lessee did grant and covenant to and with the said A. Cage that he would permit the said Anthony Cage peaceably to hold the Courts and to take the profits to his own use Proviso that the said Lessee should have the Rents of the Copy-holders Free-holders And afterwards the Lessee granted over his Interest in the said Term. It was moved by Towse that by this Exception the Court Baron is not excepted nor severed from the Manor nor destroyed Covenant amounts to a grant for it is incident to the Manor and this Covenant betwixt the Lessee and Anthony Cage amounts to a grant of the Court to Anthony Cage See 44 E. 3. Fitz. Mannors de faits 144 29 E. 3. Burr 280. and see 37 H. 8. 1 E. 6. Br. Leases 60. That where I.S. Covenants concessit to I. N. that he shall have twenty acres of Land in B. for one and twenty years it is a good Lease for this word concessit is as strong as dimisit And it was moved that here the Earl leased for years to begin two years after and the Lessee being in possession doth continue it after the two years and afterwards before any entry the Lessee assignes over his Interest that the same is not a good grant but only a Right But by the whole Court the grant was holden good notwithstanding the said Exception And it was holden also that the Covenant ut supra was void for although that Anthony Cage hath authority to hold the Courts yet it ought to be in the name of the Lessee CLXI Stretton and Taylors Case Trin. 30 Eliz. In the Kings Bench. STretton did inform against Taylor upon the Statute of Vsury Information upon the Statute of Usury Retraxit by the Queens Attorney shall not bind the Informer 1 Cro. 138. 583. Qui sequitur tam pro Domina Regina quam pro seipso And the Queens Attorney entred upon it c. non vult prosequi and that was pleaded in Bar against the Informer for the whole And by Wray the same is not any Barr to the Informer But Popham the Attorney general said that by the favour of the Court he would maintain the authority of his place which his Predecessors had enjoyed for he said it cannot be found by any Record in this Court Common Pleas or the Exchequer that the Informer had proceeded where the Attorney General had made such an Entry for we have not used to do it without great consideration for if the Informer hath ceased to prosecute the Suit two or three Terms then we used to enter a Non vult prosequi For it is not reason that the Subject should be molested or attendant so long without just cause and it is not against Law that in personal Suits the act of one should prejudice the other And the Queen is the principal party in this Suit for the Replication shall be made in the name of the Queen only and not
not set down any place or time of the notification of his contentment for the same is traversable Gawdy The Issue here is non Assumpsit Assumpsit and therefore that matter is out of the Book Cook If one assume to pay twenty pounds to another upon request although the Defendant plead non Assumpsit yet if the place and time of request be not shewed Iudgment many times hath been stayed for no Action without a Request so here without notification of his contentment no Action therefore he ought to shew it Gawdy The ground of this Action is the Assumpsit but that cannot be certain without Declaration and thereof notice ought to be given to make certainty of the duty but not to enforce the promise but in our case without a Request Assumpsit will not lye But here it being but conveyance the certainty of the time and place is not necessary to be shewed but the general form shall serve for it is but inducement As if a man will plead a devise of goods to him and assent of the Executors to take them he need not to shew the time and place of the assent Gawdy at another day said that Iudgment ought to be given for the Plaintiff the Assumpsit is the ground and cause of the Action and the shewing of the contentment is only to reduce the Action to certainty And Iudgment was given for the Plaintiff CLXVIII Musket and Coles Case Trin. 30 Eliz. In the Kings Bench. WIlliam Musket brought an Action upon the Case against Cole 1 Cro. 13. and declared that in consideration that the Plaintiff had payed unto the Defendant forty shillings for the Debt of Symon his Son the Defendant promised to deliver to him omnes tales billas Obligationes in which his Son was bounden to him which thing he would not do and it was found by Verdict for the Plaintiff And it was moved for stay of Iudgment because the Plaintiff had not averred in his Declaration that the said Defendant had Bills or Obligations in which Simon his Son was bounden to the Defendant Averment for if there were none then no damage And see Onlies Case 19 Eliz. Dyer 356. D. in consideration that the Plaintiff had expended divers sums of money circa the businesses of the Defendant promised c. Exception was taken to that Declaration by Manwood and Mounson Iustices because it was not shewed in what businesses certain and betwixt what persons Gawdy The Plaintiff here is not to recover the Bills or Obligations but damages only and therefore needeth not to alledge any Bills in certain And 47 E. 3. 3. A. covenants with B. to assure unto B. and his Heirs omnia terras tenementa quas habet in such Counties and for not assurance an Action of Covenant was brought and the Plaintiff declared that the Defendant had broken the said Covenant and that he had required the Defendant to make a Feoffment unto him of all his Lands and Tenements in the said Counties and the plea was not allowed for the Land is not in demand but only damages to be recovered See also 46 E. 3. 4. and 20 E. 3. And in the principal case the Plaintiff had time enough for the shewing to the Iury what Bills or Obligations for the instructing of the Iury of the damages CLXIX English and Pellitary and Smiths Case Trin. 30 Eliz. In the Kings Bench. Assault and Battery 1 Cro. 139 140. IN an Action of Trespass of Assault and Battery and wounding The Defendants say that they were Lessees of certain Lands and the Plaintiff came to the said Lands and took certain Posts which were upon the Lands and they gently took them from him S. pleaded that he found the Plaintiff and P. contending for the said Posts and he to part them mollite put his hands upon the Plaintiff which is the same c. The Plaintiff replyed De injuriis suis propriis absque tali causa per ipsos P. S. allegat upon which issue was joyned which was found for the Plaintiff It was moved in arrest of Iudgment that here was not any issue for the Plaintiff ought severally to reply to both pleas aforesaid for here are several Causes of Iustification and his Replication absque tali causa Nomen Collectivum Post 139. Dy. 182. doth not answer to both Cook This word Causa is nomen Collectivum which may be referred to every Cause by the Defendants alledged reddendo singula singulis and their Iustifications are but one matter and the Defendants might have all joyned in one plea. Wray Both pleas depend upon one matter but are several causes for two justifie by reason of their Interest and the third for the preservation of the Peace And by him and the whole Court although it be not a good form of pleading yet by reasonable construction this word Cause shall be referred to every cause and so the pleading shall be maintained And afterwards Iudgment was given against the Plaintiff CLXX Cater and Boothes Case Trin. 30. Eliz. In the Kings Bench. Intrat Hill. 30 Rot. 58. or 581. IF a Writ of Covenant the Plaintiff declared that the Defendant by his deed bearing date the first of October 28 Eliz. did covenant that he would do every act and acts at his best endeavour to prove the Will of I. S. or otherwise Covenant that he would procure Letters of Administration by which he might convey such a Term lawfully to the Plaintiff which he had not done licet saepius requisitus c. The Defendant pleaded that he came to Doctor Drury into the Court of the Arches and there offered to prove the Will of the said I. S. but because the Wife of the said I.S. would not swear that it was the Will of her Husband they could not be received to prove it Vpon which it was demurred in Law. It was moved by Williams that the Action doth not lie for there is no time limited by the Covenant when the thing should be done by the Defendant for which he hath time during his life for as much as it is a collateral thing See 15 E. 4. 31. if there be not a Request before but admit that the Covenant had been to perform upon request Request then the Plaintiff in his Declaration ought to have shewed an express request with the place and time of it for that is traversable See 33 H. 6. 47 48. 9 E. 4. 22. Gawdy If the Covenant had been eypresly to do it upon request there the request ought to be shewed specially But when a thing upon the exposition of the Law only is to be done upon Request such Request alledged generally is good enough And by Wray the Covenantor hath not time during his life to perform this Covenant but he ought to do it upon request within convenient time but in some case a man shall have time during his life as where no benefit shall be to any of the
both not lye of a Tenement nor a forcible entry supposed in a Tenement 11 H. 7. 25. 38 H. 6. 1. Another error was because the Fine was levyed in the Court of the City of Exceter Which see 44 E. 3. 37 38. Those of Exceter can prescribe to have the Conusans but the same ought to be by special Charter of the King by express words Egerton the Queens Solicitor who sate under the Iustices and was not of Counsel in the case said 2 Inst 515. 1 Roll. 489. That he was of Counsel in a case betwixt Bunbery and Bird where such a Fine levyed in Chester by prescription was in question was by a Writ of Error reversed And afterwards in the principal case the Fine was reversed for the first Error CCLXVI. Trin. 31 Eliz. In the Kings Bench. 1 Cro. 96. 97. THe Case was this Grandfather Father and Son The Grandfather seised of a house called the Swan in Ipswich devised the same to his eldest Son for life the Remainder to A. Son of his eldest Son and the heirs males of his body Devises the Remainder to the right heirs of the Devisor and to the heirs males of his body and died The Father and Son died without issue male the Son having issue a Daughter who entred and assured the Land unto one Hawes and covenanted That she was seised of the said Messuage of a certain and sure estate in Fee-simple Godfrey That the Daughter shall take the last Remainder as right heir at the time that it ought to be executed to the heirs males of her body as if it had been devised to her by her proper Name so she hath but an estate tail and so the covenant is broken Cook contrary At the time that the devise took effect by the death of the Devisor the Father was his Right heir so as the Remainder vested in him immediately Antea 182. and shall not expect in abeyance until the Father and Son dye without heir male of the Son for the Father is a person able to take so that upon the death of the Devisor the Father is Tenant for life the Remainder to the Son and the heirs males of his body the Remainder to the Father in tail ut supra the Reversion to the Father in fee and the Daughter hath the same Reversion by discent after the Entayls spent all which Wray Iustice granted CCLXVII Galliard and Archers Case Mich. 31 32 Eliz. In the Common Pleas Intrat Trin. 31 Eliz. Rot. 1529. GAlliard brought an Action upon the Case against Archer Trover and Conversion The Plaintiff declared That he himself was possessed of certain goods which by trover came to the hands of the Defendant who hath converted them to his own use The Defendant pleaded Postea â—â—â— That before the Trover supposed one A. was possessed of the said goods as of his proper goods and sold them to the Defendant and that he had not any notice that the said goods were the goods of the Plaintiff upon which the Plaintiff did demur in Law. And by Anderson the plea is not good for the Plaintiff may chuse to have his Action against the first finder or against any other which gets the goods after by Sale Gift or Trover And by some Postea 253. The Defendant having the goods by Sale might traverse the finding See Contr. 27 H. 6. 13. a. And see by some In detinue where the Plaintiff declares of a Bailment The Defendant may say That he found them and traverse the Bailment 39 H. 6. 37. by Moile and by Windham Iustice The Defendant may traverse the property of the goods in the Plaintiff 12 E. 4. 11. CCLXVIII Edwards and Tedbuties Case Mich. 31 32 Eliz. In the Common Pleas. EDwards of London was endebted unto one A. of the same City Bailment of goods to a Carrier and Edwards delivered goods to one Tedbury Carrier of Exceter who went to him to carry for him certain Wares to be carried to Exceter to certain Tradesmen there the said goods to be delivered to them c. And so the said goods Wares and Merchandizes being in the possession of the Defendant Tedbury to be carried to Exceter the said A. caused them to be attached in the hands of the said Carrier for the Debt of the said Edwards The said Carrier being then priviledged in the Common Pleas by reason of an Action there depending And by the clear opinion of the whole Court the said Attachment ought to be dissolved Attachment of goods For the Carrier for the reason aforesaid is priviledged in his parson and his goods and not only in his own goods whereof the property belongs to him but also in such goods in his possession for which he is answerable to others c. And so it was adjudged CCLXIX Cockshal and the Mayor c. of Boaltons Case Mich. 31 32 Eliz. In the Common Pleas. HEnry Cockshal brought an Action upon the case against the Mayor Conâ—piâ—â—â—â— Town-Clark and Goal or of Boalton in the County of L. and declared That where he himself had affirmed a Plaint of Debt in the Court of the said Town before the said Mayor c. against I.S. and thereupon had caused the said I.S. to be arrested The said Defendants did conspire together to delay the Plaintiff of his said suit in peril of his Debt had let the said I. S. go at large without taking Bail. Periam Iustice conceived That upon that matter the Action doth not lye for the not taking of Bail is a judicial act for which he shall not be impeached But all the other Iustices were strongly of opinion against him for the not taking of Bail is not the cause of the Action but the Conspiracy CCLXX. Erbery and Lattons Case Mich. 31 32 Eliz. In the Common Pleas. 1 And. 234. IN a Replevin The Defendant doth avow because he is seised of such a Manor within which there is a Custom That the greater part of the Tenants at any Court within the said Manor holden appearing may make By-laws for the most profit and best government of the Tenants of the said Manor c. and that such By-laws should bind all Tenants c. and shewed further That at such a Court holden within the said Manor the Homage there being the greater part of Tenants of the Mannor aforesaid at the Court aforesaid appearing made this By-law scilicet That no Tenant of the said Manor should put into such a Common any Steer being a year old or more upon pain of six pence for every such Offence and that it should be lawful to distreyn for the same And the Court was Clear of opinion That the By-law was utterly void For it is against Common Right where a man hath Common for all his Cattel Commonable to restrain him to one kind of Cattel c. But if the By-law had bin That none should put in his Cattel before such a
upon a Deed. Hutt 102. Dy. 91. 2 Co. 61. 1 Ma. Dyer 91. and also the wife by her disagreement to it and the occupation of the Land after the death of her Husband hath made it the Lease of the Husband only CCLXXV Rockwood and Rockwoods Case Mich. 31 32 Eliz. In the Common Pleas. Assumpsit 1 Cro. 163. IN an Action upon the case the case was this The Father of the Plaintiff and Defendant being sick and in danger of death and incending to make his Will In the presence of both his Sons the Plaintiff and Defendant declared his meaning to be To devise to the Plaintiff his younger Son a Rent of 4 l. per annum for the term of his life out of his Lands and the Defendant being the eldest Son the intention of his Father being to charge the Land with the said Rent offered to his Father and Brother That if the Father would forbear to charge the Land with the said Rent he promised he would pay the 4 l. yearly to his Brother during the life of his Brother according to the intention of his said Father Whereupon the Father asked the Plaintiff if he would accept of the offer and promised of his Brother who answered he would whereupon the Father relying upon the promise of his said eldest Son forbore to devise the said Rent c. so as the Land descended to the Eldest Son discharged of the Rent and the opinion of the whole Court in this case was clear that upon the whole matter the action did well lye CCLXXVI Petty and Trivilians Case Mich. 31 32 Eliz. In the Common Pleas. Livery of seisin HUmphrey Petty brought Second Deliverance against William Trivilian and upon especial verdict the case was That A. was seised of certain Land and Leased the same for years and afterwards made a Deed of Feoffment unto B. and a Letter of Attorney to the Lessee C. and D. conjunctim vel divisim in omnia singula terras et Tenementa intrate et seisinam inde c. secundum formam Chartae c. Lessee for years by himself makes Livery and seisin in one part of the Land and C. in another part and D. by himself in another part It was first agreed by the Iustices that by that Livery by Lessee for years his Interest and Term is not determined for whatsoever he doth he doth it as an Officer or Servant to the Lessor Secondly It was agreed That these several Liveries were good and warranted by the Letter of Attorney especially by reason of these words In omnia singula c. So as all of them and every of them might enter and make Livery in any and every part And so it was adjudged CCLXXVII Rigden and Palmers Case Mich. 31 32 Eliz. In the Common Pleas. RIgden brought a Replevin against Palmer who avowed for damage feasant in his Freehold The Plaintiff said Replevin That long time before that Palmer had any thing he himself was seised until by A. B. and C disseissed against whom he brought an Assise and recovered Avowry and the estate of the Plaintiff was mean between the Assise and the recovery in it The Defendant said That long time before the Plaintiff had any thing One Griffith was seised and did enfeoff him absque hoc that the said A. B. and C. vel eorum aliquis aliquid habuere in the Lands at the time of the Recovery Walmsley Iustice was of opinion That the Bar unto the Avowry was not good for that the Plaintiff hath not alledged That A.B. and C. Ter-Tenants tempore recuperationis and that ought to be shewed in every recovery where it is pleaded And then when the Defendant traverseth that which is not alledged it is not good Windham contrary For the Assise might be brought against others as well as the Tenants as against disseisors But other real actions ought to be brought against the Ter-Tenants only and therefore it needs not to shew that they were Ter-Tenants at the time of the Recovery and also the traverse here is well enough Another Exception was taken because the Avowry is That the place in which conteineth an 100 Acres of Land The Plaintiff in bar of the Avowry saith that the place in which c. conteins 35 Acres c. but that Exception was not allowed for it is but matter of form is helped by the Statute of 27 Eliz. Another Exception was taken as to the hundred of Cattel and doth not shew in certain if they were Ewes Sty 71. 264. or Lambs or how many of each which also was dissallowed for the Sheriff upon Returno habendo may enquire what cattel they were in certain and so by such means the Avowry shall be reduced to certainty CCLXXVIII RUssell and Prats Case Mich. 31 32 Eliz. In the Exchequer Chamber RUsell brought an action upon the case against Prat and declared That certain goods of the Testator casually came to the Defendants hands and upon matter in Law Iudgment was given for the Plaintiff sed quia nescitur quae damna Error c. Ideo a writ of Enquiry of Damages issued and now Prat brought a Writ of Error in the Exchequer Chamber upon the Statute of 27 Eliz. cap. 8. But note That the Iudgment was given before the said Statute but the Writ of Enquiry of Damages was retorned after the said Statute Writ of Enquiry of Damages the said Statute doth not extend but to Iudgments given after the making of it And it was moved That the said Iudgment is not to be examined here but by the clear opinion of Anderson Manwood Windham Walmesley Gent and Clark Iustices of the Common Pleas and Barons of the Exchequer the Writ of Error lyeth here by the Statute 1 Cro. 235. for in an action of Trespass as this case is full judgment is not given until the Writ of damages be retorned And if before the Retorn of it any of the parties dieth the Writ shall abate and the first Iudgâ—ent which is given before Award of the Writ is not properly a Iudgment but rather a Rule and order and so in a Writ of accompt where Iudgment is given that the Defendant computet cum querente he shall not have Error upon that matter for it is not a full Iudgment See 21 E. 3. 9. So as to the Iudgment in a Writ of Trespass scil That no Writ of Error lyeth before the second Iudgment after the Return of the Writ of Enquiry of Damages are given And also it was holden by all the said Iustices and Barons That an Executor shall have an action upon the case de bonis testatoris casually come to the hands and possession of another Action de bonis Testatoris and by him converted to his own use in the life of the Testator and that by the Equity of the Statute of 4 E. 3. 7. de bonis asportatis in vita Testatoris
appendant to it and conveyed the said capital Messuage and Advowson to the King by the dissolution and from the King to the said Thomas Long who so seised without any Deed did enfeoff the Plaintiff of the said Manor and made Livery and Seisin upon the Demesnes And that the said Thomas Long by his Deed made a grant of the said Advowson to the said Strengham and afterwards the Free-holder attorned to the Plaintiff And by the clear opinion of the whole Court here is a sufficient Manor to which an Advowson may be well appendant and that in Law the Advowson is appendant to all the Manor but most properly to the Demesnes out of which at the commencement it was derived and therefore by the attornment afterwards within construction of the Law shall have relation to the Livery the Advowson did pass included in the Livery And the grant of the advowson made mesne between the Livery and the attornment was void and afterwards Iudgment was given and a Writ to the Bishop granted for the Plaintiff CCXC. Mich. 32 33 Eliz. In Communi Banâ—o Debt A Made a Bill of Debt to B. for the payment of twenty pounds at four days scil five pounds at every of the said four days and in the end of the Deed covenanted and granted with B. his Executors and Administrators that if he make default in the payment of any of the said payments that then he will pay the residue that then shall be un-paid and afterwards A. fails in the first payment and before the second day B. brought an action of Debt for the whole twenty pounds It was moved by Puckering Serjeant Sâ—y 31. 32. 1 Cro. 797. That the Action of Debt did not lye before the last day encurred And also if B. will sue A. before the last day that it ought to be by way of covenant not by Debt But by the whole Court the action doth well lye for the manner for if one covenant to pay me one hundred pounds at such a day an action of Debt lyeth a fortiori Owen 42. 1. 2 Rol. 523. when the words of the Deed are covenant and grant for the word covenant sometimes sounds in covenant sometimes in contract secundum subjectum materiae CCXCI. Lancasters Case Mich. 32 33 Eliz. In Communi Banco Roll. Tit. Covenant pl. 72. AN Information was against Lancaster for buying of pretended Rights Titles upon the Statute of 32 H 8. And upon not guilty pleaded It was found for the Plaintiff it was moved in arrest of Iudgment because the Informer had not pursued the Statute in this that it is not set forth that the Defendant nor any of his Ancestors or any by whom he claimed have taken the profits c. and the same was holden a good and material Exception by the Court although it be layed in the Information that the Plaint himself hath been in possession of the Land by twenty years before the buying of the pretended Title for that is but matter of argument not any express allegation for in all penal Stat. the Plaintiff ought to pursue the very words of the Stat. and therefore by Anderson It hath been adjudged by the Iudges of both Benches that if an Information be exhibited upon the Stat. of Vsury by which the Defendant is charged for the taking of twenty pounds for the Loan and forbearing of one hundred pounds for a year there the Information is not good if it be not alledged in it that the said twenty pounds was received by any corrupt or deceitful way or means And in the principal Case for the Cause aforesaid Iudgment was arrested CCXCII Bagshaw and the Earl of Shrewsburies Case Mich. 32 33. Eliz. In the Common Bench. BAgshaw brought a Writ of Annuity against the Earl of Shrewsbury for the arrerages of an Annuity of twenty Marks per annum Annuity granted by the Defendant to the Plaintiff Pro Consilio impenso impendendo The Defendant pleaded that before any arrerages incurred he required the Plaintiff to do him Service and he refused The Plaintiff by replication said that before the refusal such a day and place the Defendant discharged the Plaintiff of his Service c. And the opinion of the Court was that the Plea in Bar was not good for he ought to have shewed for what manner of Service to do the Plaintiff was so retained and for what kind of Service the Annuity was granted and then to have shewed specially what Service he required of the Plaintiff and what Service the Plaintiff refused Another matter was moved If the discharge shall be peremptory and an absolute discharge of the Service of the Plaintiff and of his attendance so that as afterwards the Defendant cannot require Service of the Plaintiff And by Walmesly Iustice it is a peremptory discharge of the Sevice for otherwise how can he be retained with another Master and so he should be out of every Service VVindham contrary For here the Plaintiff hath an Annuity for his life and therefore it is reason that he continue his Service for his life as long as the Annuity doth continue if he requirreth But where one is retained but for one or two years then once discharged is peremptory and absolute CCXCIII Matheson and Trots Case Mich. 31 32. Eliz. In the Common Bench. BEtwixt Matheson and Trot the Case was Sir Anthony Denny seised of certain Lands in and about the Town of Hertford 2 Len. 190. holden in Socage and of divers Mannors Lands and Tenements in other places holden in chief by Knights-service and having Issue two Sons Henry and Edward by his last Will in writing devised the Lands holden in Hertford to Edward Denny his younger Son in Fee Devises and died seised of all the Premisses Henry being then within age After Office was found without any mention of the said Devise the Queen seised the Body of the Heir and the possession of all the Lands whereof the said Sir Anothony died seised and leased the same to a stranger during the Minority of the Heir by force and colour of which Lease the Lessee entred into all the Premisses and did enjoy them according to the Demise And the Heir at his full age sued Livery of the whole and before any entry of the said Edward in the Land to him devised or any entry made by the said Henry the said Henry at London leased the said Lands by Deed indented to I.S. for years rendring Rent by colour of which the said I.S. entred and paid the Rent divers years to the said Henry And afterwards by casualty the said Henry walked over the Grounds demised by him in the company of the said I. S. without any special entry or claim there made I.S. assigned his Interest to I.D. who entred in the Premisses and paid the Rent to the said Henry who died and afterwards the Rent was paid to the Son and Heir of Henry
And after four and twenty years after the death of the said Sir Anthony the said Edward entred into the Land to him devised by the said Devise and leased the same to the Plaintiff Descent where tokes away entire c. And it was moved here if this dying seised of Henry of the Lands in Hertford and descent to his Heir should take away the Entry of Edward the Devisee And by Anderson cleerly If here upon the whole matter be a descent in the Case then the Entry of Edward the Devisee is taken away although that the Devisee at the time of the descent had not any Action or other remedy for it shall be accounted his folly that he would not enter and prevent the descent But VVindham Periam and VValmesly Iustices 2 Len. 147. 1 Cro. 920. 3 Cro. 145. Owen 96. were of a contrary opinion For a Devisee by a Devise hath but a Title of Entry which shall not be bound by any Descent as Entry for Mortmain for Condition broken And after long deliberation they all agreed that there was not any Descent in the Case for by the Devise and death of the Devisor the Frank-tenement in Law and the Fee was vested in the Devisee Edward And then when the Queen seised and leased the same during the Nonage of Henry and the Lessee entred he did wrong to Edward and by his Entry had gained a tortions Estate in fee although he could not be said properly a Disseisor nor an Abator And afterwards when Henry after his full age when by his Indenture he leased without any special Entry ut supra and by colour thereof the Lessee entred now he is a wrong-doer to Edward the Devisee and by his Entry had gained a wrongful Possession in Fee and then the paying of the Rent to Henry nor the walking of Henry upon the Land without any special claim did not gain any Seisin to him and so he was never seised of the Land and could never dye seised and then no Descent and then the Entry of Edward was lawful and the Lease by him made to the Plaintiff was good And so Iudgment was given for the Plaintiff CCXCIV. Greenwood and Weldens Case Mich. 32 33 Eliz. In the Common Bench. Replevin IN a Replevin between Greenwood and VVelden The Defendant made Conusans as Bayliff to John Cornwallis shewed how that seven acres of Land called Pilles is locus in quo and at the time of the taking were holden of the said Cornwallis by certain Rent and other Services And for Rent arrear he made Conusans as Bayliff to Cornwallis The Plaintiff pleaded out of the Fee of Cornwallis upon which they were at Issue And it was found that the Plaintiff is seised of seven acres called Pilles hoden of Cornwallis ut supra But the Iury say That locus in quo doth contain two acres which is called Pilles and these two acres are and then were holden of Agmondesham of the Middle-Temple And if upon the whole matter videbitur Curiae c. And by the opinion of the whole Court out of his Fee upon that matter is not found for although it be found that the two acres be holden of Agmondesham yet it may be that they are within the Fee of Cornwallis for it may be that Cornwallis is Lord Paramount and Agmondesham Mesne and then within the Fee of Cornwallis And therefore for the incertainty of the Verdict a Venire facias de novo was awarded CCXCV. Bishop and Harecourts Case Mich. 32 33. Eliz. In the Common Bench. Assumpsit 1 Cro. 210. IN an Action upon the Case The Plaintiff declared that the 5 Junij 30 Eliz. the Defend in consideration that the Plaintiff the same day and year sold and delivered to the Defend a Horse did promise to pay the Plaintiff a hundred pounds in Trinity Term then next ensuing and shewed that the Term began 7 Junij after And upon Non assumpsit pleaded it was found for the Plaintiff And it was moved in arrest of Iudgment That it appeareth upon the Declaration that the Plaintiff hath not cause of Action for the Trinity Term intended is not yet come for the day of the Assumpsit is the fifth of June and the fourth day was the first day of the said Term scil the day of Essoins and the seventh day 4. die post and then the promise being made at the day aforesaid after the Commencement of the said Term the same is not the Term intended but the Plaintiff must expect the performance of the promise until a year after And of that opinion was Anderson but the three other Iustices were strongly against him to the contrary for by common intendment amongst the people the Term shall not begin until 4. die post and so it is set down usually in the Almanack And afterwards Iudgment was given for the Plaintiff CCICVI Mich. 32 33. Eliz. In the Common-Bench COoper Serjeant came to the Bar and shewed that A. Tenant in tail the Remainder over to B. in Fee. Co. 2 Inst 483. 484. 1 Cro. 323. 471. 567. Hob. 496. 3 Cro. 224. A. for a great sum of mony sold the Land to I. S. and his Heirs and for assurance made a Feoffment in Fee and levied a Fine to the said I. S. to the use of the said I. S. and his Heirs And note that by the Indenture of Bargain and Sale A. covenanted to make such further Assurance within seven days as the said I. S. or his Heirs or their Council should devise And shewed that before any further assurance was made the said I. S. died his Son and Heir being within age And now by advise of Council and of the Friends of the Infant it was devised that for such further assurance and cutting off the Remainder a common Recovery should be suffered in which the said Infant should be Tenant to the Praecipe and should vouch the Vendor Common Recovery suffered by an Infant by his Guardian and because that the said Term of seven years is almost expired and that the said Recovery is intended to be unto the use of the said Infant and his Heirs it was prayed that such a Recovery might be received and allowed And two Presidents in such Case were shewed in the time of this Queen one the Case of the Earl of Shrewsbury and the other one VVisemans Case But the Iustices were very doubtful what to do But at last upon good assurance of people of good Credit that it was unto the use of the Infant and upon the appearance of a good and sufficient Guardian for the Infant in the Recovery who was of ability to answer to the Infant if he should be deceived in the passing of that Recovery and upon consideration had of the two Presidents and upon Affidavit made by two Witnesses that the said intended Recovery was to the use of the Infant the Recovery was received and allowed CCICVII Cottons Case Mich. 32
Entry holden lawful But Error was brought upon it And also Calthrops case was cited to the same purpose 16 Eliz. Dyer 336. This estate limited to Ambrose doth refer to the estate limited to Muriel and Ann and not to the time for ever the first estate is to be respected as 23 Eliz. Dyer 371. He in the Remainder in Fee upon an estate for life deviseth it to his Wife yielding and paying during her natural life yearly 20 shillings and dieth living Tenant for life the Rent shall not begin until the Remainder falleth So as the general words refer to the beginning of the estate although the words imply that the Rent shall be paid presently And see also such construction 9 Eliz. 261. A Lease was made for thirty years and four years after the Lessor makes another Lease by these words Nos dictis 30 annis finitis dedisse concessisse c. Habend tenend a die confectionis praesentium termino praedict finito usque terminum c. And although prima facie the beginning of this Term seems incertain yet the Iustices did respect the former estate and so the Lessee hath the Interest of the Term from the making of the Deed but no estate until the first Term expire Then Ambrose before his age of 21 years levying a Fine the Fine shall not bind the Feoffee for it enures only by way of conclusion and so binds parties and privies but not a stranger And the party needs not to plead against this Fine quod partes to the Fine Nihil habuerunt for that appeareth upon their own shewing Wiat contrary The state of Ambr. accrues and rises when any of the said times come first full age return death for the words are And after the return of Ambrose from beyond the Seas and the age of 21 years or death c. This word or before death disjoyns all and makes the sentence in the Disjunctive and he cited a case lately judged in the Common Pleas A Lease was made to Trewpeny and his Wife for one hundred years if he and his Wife or any Child or Children betwixt them begotten should so long live the Wife died without Issue the Husband held the Land c. for the Disjunctive before Child made the sentence Disjunctive Gawdy Iustice That had been Law if no such word had been in the Case And Wiat said That although the return be incertain yet it is certain enough that he shall come to the age of 21 years or dye And also this is by way of use which needs not to depend upon any estate and if the Remainder shall vest presently upon his return then it would be doubtful what Remainder it is if it be a Remainder depending upon the estate for the life of Ann and Muriel or for years i.e. until Ambrose shall come of the age of 21 years But be it incertain yet the Fine is good for here is a Remainder in Ambrose and both are but particular estates and there is not any doubt but that one may convey by Fine or bar by Fine such contingent uses for which see the Statute of 32 H. 8. All Fines to be levied of any Lands intailed in any wise to him that levieth the Fine or to any his Ancestors in possession reversion c. which word use goes to contingent uses for at the time of the making of that Statute there was no other use Fenner Iustice remembred the Case adjudged M. 30 31 Eliz. betwixt Johnson and Bellamy 2 Len. 36. which ruled this Case Gawdy Iustice Here is a certainty upon which the Remainder doth depend i. e. the death of Ambrose but the Case had been the more doubtful if no certainty at all had been in the Case Atkinson contrary Here the Lord Vaux is Tenant for life the Remainder to George in tail now when the Lord Vaux levies a Fine this is a forfeiture and then the Entry of George is lawful It hath been objected on the other side that this Remainder was future and contingent and not vested therefore nothing passed to George by Ambrose The words are quousque Ambrose shall return This word quousque is a word of Limitation and not of Condition and then the Remainder may well rise when the Limitation hapneth It hath been said that this Remainder is contingent and then the Remainder which is to vest upon a contingency cannot be granted or forfeited before that the contingent hapneth And he cited the Case of 14 Eliz. 314. Dyer A Fine is levied to A. to the use of B. for life the Remainder to E. in Tail the Remainder to B. in fee. Proviso That if B. shall have Issue of his Body that then after such Issue and 500 l. paid to c. within six months after the birth of such issue the use of the said Lands after the death of the said B. and the said six months expired shall be to the said B. and the heirs of his body And it was holden that before the said contingent hapneth B. had not any estate tail for there it was incertain if the said contingent would happen but in our case the contingents or some of them will happen or run out by effluxion of time and that makes the Remainder certain in Ambrose And he also argued that the Limitations are several by reason of the Disjunctive and the last part of the sentence and that the said sentence is in the Disjunctive appeareth by the subsequent words which of the said days or times shall first happen And then the return of Ambrose for that first hapned vests the Remainder in him and therefore the Plaintiff ought to be barred Buckley contrary The estate of the Daughters doth depend upon a Copulative i.e. the return of Ambrose and his full age and both is but one Limitation it is clear that the first Limitation is upon a contingent and the remainder cannot vest until both are performed And as to that which hath been said that there is a certain Limitation i. e. the return of Ambrose 18 Eliz. the Case was Lands were given to Husband and Wife the Remainder to such of them as should survive the other for years the Husband makes a Lease for years and dieth it was holden that although the Limitation was upon a certain estate yet because it is not known in which of the parties the estate secondly limited shall begin the Lease is void So here it is not certainly appointed when the estate limited to Ambrose shall begin upon the return full age or death of Ambrose and he said that here are but two times of Limitation first return and full age second death return and full age determines the estate of the Daughters and also the death if it shall first happen and if these three times shall be construed in the Disjunctive 2 Len. 2â— the same would overthrow the estate of the Daughters which is an estate for years determinable upon the death of themselves or Ambrose
Entry so where an use is often executed by the Statute Cestuy que use without any Entry hath an actual possession i. As to the uses contingent nothing remains in the Feoffees for the setling of them when they happen but the whole estate is setled in Cestuy que use yet subject to such use and he shall render the same upon contingency And if any estate should remain in the Feoffees it could be but an estate for life for the Fee simple is executed in Cestuy que use with an estate in possession and then the Feoffees should be seised to another use than was given them by the Livery Also if a Feoffment be made unto the use of the Feoffor and his heirs until J.S. hath paid unto the Feoffor 100 l. from thenceforth the Feoffor and his heirs shall be seised to the use of the said J.S. and his heirs if upon such Feoffment any thing should remain in the Feoffees before the payment by I.S. the same should be a Fee-simple and then there should be two Fee-simples of one and the same Lands one in the Feoffor and the other in the Feoffees which should be absurd and therefore the best way to avoid such inconveniences is to continue the Statute that it draws the whole estate of the Land and also the confidence out of the Feoffees and reposeth it upon the Lands the which by the operation of the Statute shall render the use to every person in his time according to the limitation of the parties And also if any Interest doth remain in the Feoffees Then if they convey to any person upon consideration who hath not notice of the use then the said use shall never rise which is utterly against the meaning of the said Statute and the meaning of the parties and therefore to construe the Statute to leave nothing in the Feoffees will prevent all such mischief And if a Feoffment in fee be made to the use of the Feoffor for life and afterwards to the use of his wife which shall be for life and afterwards to the use of the right Heirs of the Feoffor The Feoffor enfeoffeth a stranger taketh a wife now cannot the Feoffees enter during the life of the Feoffor and after his death they cannot enter because they could not enter when the use to the wife was to begin upon the intermarriage and then if the Entry of the Feoffees in such case should be requisite the use limited to the wife by the Act of the Feoffor should be destroyed against his own limitation which is strong against the meaning of the Act aforesaid for by the said act the Land is credited with the said use which shall never fail in the performance of it And such contingent estates in Remainder may be limited in possession a Fortiori in use which see 4. E. 6. Coithirsts case 23. And Plesingtons case 6 R. 2. And it is true at the common Law the Entry of the Feoffees was requisite because the wrong was done unto them by reason of the possession which they then had but now by the Statute all is drawn out of them and then there is no reason that they medle with the Lands wherein they have now nothing to do and the scope of the Statute is utterly to disable the Feoffees to do any thing in prejudice of the uses limited so as the Feoffees are not to any purpose but as a Pipe to convey the Lands to others So as they cannot by their Release or confirmation c. bind the uses which are to grow and arise by the limitation knit unto the Feoffment made unto them which see Br. 30. 30 H. 8. Feoffments to uses 50 A. covenants with B. That when A. shall be enfeoffed by B. of three Acres of Lands in D. that then the said A. and his Heirs shall be seised of Land of the said A. in S. to the use of B. and his Heirs and afterwards A. enfeoffeth a stranger of his Lands in S. And afterwards B. enfeoffeth A. of his Lands in D. now the Feoffee of A. shall be seised to the use of B. notwithstanding that the said Feoffee had not notice of the use for Land is bound with the use in whose hands soever it come And see the like case ibid. 1. Ma. 59. Vpon the reason of which cases many assurances have been made for it is the common manner of Mortgage i. e. If the Mortgag or pay such a sum c. that then the Mortgagee and his Heirs shall be seised after such payment to the use of the Mortgagor and his Heirs In that case although that the Mortgagee alien yet upon the payment the use shall rise well enough out of the possession of the Alienee and the Lands shall be in the Mortgagor without any Entry For the Mortgages could not enter against his own alienation to revive the use which is to rise upon the payment and therefore without any assistance of such Entry it shall arise As at the Common Law Land is given to A. in tail the Remainder to the right heirs of B. A. levies a Fine makes a Feoffment suffers a Recovery c. although the same shall bind the Issues yet if B. dyeth and afterwards A. dyeth without issue now notwithstanding this Fine c. The right Heir of B. may enter And always a use shall spring out of the Land at his due opportunity and it is a collateral charge which binds the Lands by the first Liberty and cannot be discharged vi 49. Ass 8. 49 E. 3. 16. Isabell Goodcheapes case A man deviseth that his Executors shall sell his Lands and afterwards dyeth without heir so as the Land escheats to the King yet the authority given to the Executors shall bind the Lands in whose hands soever it comes c. And so a title of Entry continues notwithstanding twenty alienations But an use is a less thing than a Title of Entry especially an use in contingency and an use as long as it is in contingency cannot be forfeited As if the Mortgagor be attainted and pardoned mean betwixt the Mortgage and the day of Redemption c. Then when Thomas levies a Fine Francis may well enter And Thomas before the Fine had an estate tail executed to his Free-hold and therefore by the Fine he gave an estate of Inheritance to the Conusee and then no right of entail remained in Francis but he took an estate for life only and that as a Purchasor by the limitation of the Will and then when Francis levied a Fine his estate was gone which was but for life and then the right of the entail and all the other estates which are especially limited are also gone and so Percival Hart to whom no estate was specially limited hath not any cause to enter c. And it was further said by Wray Husband and Wife Tenants in special tail the Husband levies a Fine with Proclamations and dieth the Wife enters the issue in tail is
barred but if the Wife enter after the death of her Husband and before the Proclamations pass the issue is not bound by the Fine And if Tenant in Tail granteth totum statum and after levieth a Fine thereof with Proclamations come ceo c. The Issue is barred contrary where the Fine is upon a Release c. CCCXLVI Henningham and Windhams Case 18 Eliz. In the Kings Bench. ARthur Henningham brought a Writ of Error against Francis Windham upon a common Recovery had against Henry his Brother Error Owen Rep. 68. and the Case was That Land was given in special tail to Thomas Henningham Father of the said Henry and the said Arthur the Remainder in general tail the estate tail in possession was to him and the Heirs Mairs of his body Thomas had issue the said Henry and three Daughters by one woman and the said Arthur and two other Sons by another woman and dyed seised Henry entred and made a Feoffnent a common Recovery is had against the Feoffee in which Henry is vouched who vouched over the common Vouchee according to the usual course of common Recoveries Henry dyed without issue Error and Attaint by him to whom the Land is to descend and Arthur brought a Writ of Error being but of the half blood to Henry And it was resolved by the whole Court That Error and Attaint always descends to such person to whom the Land should descend If such Recovery or false oath had not been As if Lands be given to one and the Heirs Females of his body c. and suffers an erronious Recovery and dyeth the Heir female shall have the Writ of Error So upon Recovery of Lands in Borough English for such Action descends according to the Land quod fuit concessum per totam Curiam But it was objected on the Defendants part That because that the Feoffee being Tenant to the Praecipe is to recover in value a Fee-simple and so Henry is to yield a Fee-simple which should descend to the heir at the Common Law if this Recovery had not been therefore he to whom the same should descend should have the Writ of Error for he hath the loss But the said Exception was not allowed And it was said That Tenant in tail upon such a Recovery shall recover but an estate in tail scil such estate which he had at the time of the warranty made c. And afterwards Iudgment was given that the Action was maintainable So if a man hath Lands of the part of his mother and loseth it by erronious Iudgment and dyeth That the Heir of the part of the Mother shall have the Writ of Error CCCXLVII Foster and Pitfalls Case 18 Eliz. In the Kings Bench. IN Ejectione firmae the Case was 1 Cro. â— Brook devised Lands to his Wife in general Tail the Remainder over to a stranger in Fee and dyed he took another Husband and had issue a Daughter The Husband and Wife levyed a Fine to a stranger The Daughter as next Heir by 11 H. 7. entred It was agreed by the whole Court That an estate devised to the wife is within the words but not within the meaning of the Statute Secondly It was resolved That no estate is within the meaning of the Statute unless it be for the Ioynture of the Wife Thirdly Resolved That the meaning of the Statute was That the wife so preferred by the Husband should not prejudice the issues or heirs of her Husband and here nothing is left in the Issues or heirs of the Husband so as the Wife could not prejudice them for the Remainder is limited over CCCLXVIII Greenes Case 18 Eliz. In the Kings Bench. Acceptance of Rent 1 Cro. 3. 3 Co. 64. b. GReene made a Lease for years rendring Rent with clause of Re-entry and the Rent due at the Feast of the Annunciation was behind being demanded at the day which Rent the Lessor afterwards accepted and afterwards entred for the condition broken and his Entry holden lawful Entry Plow Com. in Browning and Bestons Case for the Rent was due before the condition broken but if the Lessor accepts the next Quarters Rent then he hath lost the benefit of Re-entry for thereby he admits the Lessee to be his Tenant And if the Lessor distrain for Rent due at the said Feast of the Annunciation after the forfeiture he cannot afterwards re-enter for the said forfeiture for by his Distress he hath affirmed the possession of the Lessee So if he make an Acquittance for the Rent as a Rent contrary if the Acquittance be but for a sum of mony and not expresly for the Rent all which tota Curia concessit CCCXLIX 20 Eliz. In the Common Pleas. THe Case was Lessee for life the Remainder for life the Remainder in tail the Remainder in fee The two Tenants for life make a Feoffment in fee. Dyer A woman Tenant for life in Ioynture the Remainder for life the Remainder in fee the Tenants for life joyn in a Feoffment Entry for Forfeiture the Entry of him in the Remainder in fee is lawful by 11 H. 7. And if Tenant for life be impleaded and he in the Remainder for life will not pray to be received he in the last Remainder may and so in our case inasmuch as he in the Remainder for life was party to the wrong he in the Remainder in tail shall enter Which Harper and Munson granted Dyer 339. a. i. e. Manwood Although that this Feoffment be not a Disseisin to him in the Remainder in tail yet it is a wrong in a high degree as by Littleton A Disseisor leaseth for life to A. who aliens in fee the Disseisee releaseth to the Alienee it is a good Release and the Disseisor shall not enter although the Alienation was to his disinheritance Lit. 111. which Dyer granted And if Tenant for life alieneth in fee and the Alienee enfeoffeth his Father and dieth the same descent shall not avail him no more than in case of Disseisin Livery of Seism It hath been objected that this is the Livery of the first Tenant for life and the confirmation of him in the Remainder for life Dyer was of opinion That by this Livery the Remainder for life passeth and this Livery shall be as well the Livery of him in the Remainder as of the Tenant in possession and although where an estate is made lawfully by many it shall be said the Livery of him only who lawfully may make Livery Yet where an estate is wrongfully made it shall be accounted in Law the Livery of all who joyn in it And in this the Remainder for life is extinguished by the Livery in the Feoffee and the Livery of him in the Remainder for life shall be holden a void Livery especially when he joyns with such a person who hath not authority to make Livery As if the Lord and a Stranger Disseise the Tenant and make a Feoffment over the whole Seigniory is
Request the said Feoffees or their Heirs should be seised of the said House to the use of the said Ann and her Heirs Afterwards the seventh of April 16 Eliz. Ann demanded of William Ramsey Son and Heir of John Ramsey six pounds thirteen shillings and four pence being due to the said Ann ut supra the which sum the said William Ramsey did refuse to pay by force of which and by the Statute of 27 H. 8. the said Ann Ramsey was thereof seised and died seised and from her descended the said House to William Ramsey The Plaintiff confessed the Feoffment to Crofton and Langhton to John Ramsey and others and shewed further That the said Ann required the surviving Feoffees to enfeoff one Robert Owen of the said House who three days after made the Feoffment accordingly Robert Owen enfeoffed John Owen who died thereof seised and from him the said House descended to Israel Owen Crafton died Langhton having issue two Daughters died All the Feoffees but one died Ann the time aforesaid demanded the said six pounds thirteen shillings and four pence of the said William Ramsey in another House in London due at the Feast of St. Michael last before who denied to pay it the second Daughter of Langhton entred and thereof enfeoffed the said Israel Owen Rents 3 Cro. 210 211. who leased the same to the Plaintiff and upon that Evidence the Defendant did demur in Law And first it was resolved by the whole Court That the said sum to be paid to the said Ann was not a Rent but a sum in gross because reserved to a stranger c. which see Lit. 79. Reversion And by Munson Iustice If the words of the reservation had been twenty Nobles Rent yet it had been but a sum in gross but otherwise it had been by devise Also there is not any condition for the payment of it but only a Limitation for the word subsequent which limits the future use takes away all the force of the words of the Condition as 27 H. 8. 24. Land given in tail upon condition that the Donee and his Heirs shall carry the Standard of the Donor when he goes to battel and if he fail thereof then the same to remain to a stranger the limiting of the Remainder hath taken away the condition and hath controlled it and now the Condition is become a Limitation But where the words subsequent are against Law as if upon failer that then it shall be lawful for a stranger to enter Feoffments upon condition c. these words because they are against Law for a Rent cannot be reserved to a Stranger c. do not destroy the Condition by Mead contrary by Munson for the Condition is utterly gone And by Mead Feoffment in Fee upon condition That if the Feoffor shall do such a thing that he shall re-enter and retain the Land to the use of a stranger the use is void 1 Cro 401 402 and the Feoffor shall hold the Land to his own use A Feoffment in Fee upon condition That the Feoffee shall marry my Daughter and if he refuse to marry her that then he shall be seised to the use of I.S. the same is not a Condition but a Limitation and in all cases afterwards of a Condition where an Interest is limited to a stranger there it is not a Condition but a Limitation And Mead said That the said annual sum is not demandable but the party ought to pay it at his peril Lit. 80. But by Munson it ought to be demanded for so this word Refuse doth imply Regula And when at the Request of Ann the Feoffment is made by Munson Mead and Windham the Rent is gone but Dyer contrary unless the Feoffment be made to Ann her self And afterwards Iudgment was given for the Plaintiff Hil. 19 Eliz. Rot. 748. There was a Case betwixt Shaw and Norton Shaw and Nortons Case One Green devised his Lands to A. and devised also the said A. should pay a Rent to B. and that B. might distrain for it and if A. fail of the payment of it that the Heirs of the Devisor might enter the same is a good Distress and a good Condition And by Munson Demand ought to be made of the Rent for the words are Refuse which cannot be without Demand or Request And it was certified That such a Clerk refused to pay his Tenths and because it was expresly set down in the Certificate that he was requested c. for that cause he was discharged And it was also holden That if Request be necessary that in this case Request is to be made That it ought to be made to the surviving Feoffee or his heir and not to the heirs of any of the Feoffees who are dead CCCLXIII Lacyes Case Hill. 25. Eliz. In the Kings Bench. Indictments Co. 13. Rep. 53. LAcy was indicted of the death of a man upon Scarborough Sands in the County of York between the high water-mark and the low water-mark and the same Indictment was removed into the Kings Bench and being arraigned upon it he shewed that the said Indictment was sued by vertue of a Commission which issued the first day of May directed to the Iustices of Assize and other Iustices of Peace in the said County Commission repealed to enquire of all Murders Felonies c. and pleaded further That the second day of May aforesaid issued another Commission directed to the Lord Admiral and others upon the Statute of 28 H. 8. cap. 15. by force of which the said Lacy was indicted of the same murder whereof he was now arraigned and the said last Commission was ad inquirendum tam super altum mare quam super littus maris ubicunque locorum infra jurisdictionem nostram maritimam And that the said Indictment taken before the Admiral was taken before this upon which he was arraigned and upon the whole matter prayed to be dismissed And the opinion of all the Iustices was that the first Commission was repealed by the second and so the Indictment upon which he was arraigned taken coram non Judice 10 E. 4. 7. If a Commission for the Peace issueth into one County and afterwards another Commission issueth to a Town within the same County and parcel of it the first Commission is repealed which Gawdy granted if notice be given c. but Wray denied it but the whole Court by this last Commission to the Lord Admiral the first Commission as to the Iurisdiction in locis maritimis is determined and repealed for these two Commissions are in respect of two several Authorities the first Commission meerly by the Common Law the other by the Statute aforesaid and thereupon the party was discharged against the Queen as to that Indictment Note that in the Argument of this Case it was said by Coke and agreed by Wray That if a man be struck upon the high sea 2 Co. 93. whereof he dieth in another County
afterwards that this murder is dispunishable notwithstanding the Statute of 2 Ed. 6. CCCLXIV The Queen and Braybrooks Case Pasch 25 Eliz. In the Kings Bench. 3 Co. 1 2 c. THe Queen brought a Writ of Error against Braybrook The Case was this That King Ed. 4. was seised of the Manor of Marston and gave the same to Lionel Lord Norris and A.M. and the Heirs of the body of the Lord the Remainder to H. Norris in Tail L and A. entermarry L. suffered a common Recovery against himself only without naming the said A. Hen. Norris is attainted of high Treason by Act of Parliament and by the same Act all his Lands Tenements Hereditaments Rights Conditions c. the day of the Treason committed or ever after c. Hen. Norris is executed Lionel dieth without issue the Queen falsified the said Recovery for one moiety by Scire facias because Anne who was joint-tenant with Lionel was not named party to the said Recovery and afterwards the Queen granted to the Lord Norris Son of the said Hen. Norris Manerium suum de Merston omnia jura in eodem and now upon the said Recovery the Queen brought a Writ of Error and it was argued by Egerton the Queens Sollicitor that this right to a Writ of Error is such a right as is transferred to the Queen by the Act of Parliament for the words are omnia jura sua quaecunque and here is a right although not a present right yet a right although in futuro so it is a right of some quality as A. Tenant in Tail the Remainder in Tail to B.A. makes a Feoffment in Fee B. is attainted of high Treason and by such Act all his Lands c. given to the King. A. dieth without issue the Queen shall have a Formedon in the Remainder and although the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura in eodem yet by such general words a Writ of Error doth not pass which See 32 H. 8. Br. Patents 98. And also this Action rests in privity of record and cannot be displaced from thence but by Act of Parliament see Br. Chose in Action 14. 33 H. 8. for when the King will grant a thing in Action he ought in his Patent to recite all the circumstances of the matter as the Right and how it became a Right and because the Queen here doth not make mention of this Right as of the Entail the Recovery and the Attainder for that cause the Right doth not pass The Case betwixt Cromer and Cranmer 8 Eliz the Disseisee was attainted of Treason the Queen granted to the Heir of the Disseisee all the Right which came unto her by the Attainder of his Ancestor nothing passed Causa qua supra And always where the King grants any thing which he cannot grant but as King that such a grant without special words is to no purpose Coke contrary he agreed the Case put by Egerton for at the time of the Attainder B. had a Right of Remainder but in our Case Hen. Norris had not any Right but a possibility of a Right of Action i.e. a Writ of Error And he said that this Writ of Error is not forfeitable for it is an Action which rests in privity no more than a condition in gross as a Feoffment in Fee is made upon condition of the party of the Feoffor who is attainted ut supra This word Right in the Act of Attainder shall not transfer this Condition to the Queen and of the Act of Attainder to Hen. Norris it is to be conceived That the makers of the Act did not intend that by the word Right every right of any manner or quality whatsoever should pass to carry a Condition to the Queen and therefore we ought to conceive that the makers of the Act did not intend to touch Rights which rested in privity And as to the Grant of the Queen to the Lord Norris of the Mannor of Merston Et omnia jura sua in eodem he conceived that thereby the Right of the Writ of Error did pass for it is not like Cranmers Case but if in the said Case the Land it self had been set down in the Grant it had been good enough as that Cranmer being seised in Fee of the Manor of D. was there of disseised and so being disseised was attainted of high Treason now the Queen grants to his Heirs totum jus suum in his Manor of D c. and so in our Case the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura sua in eodem c. at another day it was moved by Plowden that this Right of Writ of Error was not transferred to the Queen by the Act but such Right might be saved to a stranger c. the words of the Act are omnia jura sua and this word sua is Pronomen possessionis by which it is to be conceived that no Right should pass but that which was a present Right as a Right in possession but this Right to a Writ of Error was not in Hen. Norris at the time of his Attainder but it was wholly in him against whom the erroneous Iudgment was had and therefore if in a Praecipe quod reddat the Tenant vouch and loseth and Iudgment is given and before Execution the Tenant is attainted by Act of Parliament by words ut supra and afterwards he is pardoned the Demandant sueth for Execution against the Tenant now notwithstanding this Attainder the Tenant may sue Execution against the Vouchee and afterwards Wray chief Iustice openly declared in Court the opinion of himself and all his companions Iustices and also of all the other Iustices to be That by this Act of Parliament by which all Lands Tenements Hereditaments and all Rights of any manner and quality whatsoever Henry Norris had the day of his Attainder or ever after Lionel then being alive and over-living the said Hen. Norris that this Writ of Error was not transferred to the Queen And that the said Act by the words aforesaid could not convey to the King this possibility of right for at the time of the Attainder the Right of the Writ of Error was in Lyonel and Hen. during the estate tail limited to Lyonell had not to do with the Land nor any matter concerning it And Iudgment was given accordingly And it was holden That he in the Reversion or Remainder upon an Estate tail might have a Writ of Error by the common Law upon a Recovery had against Tenant in tail in Reversion CCCLXV Mich. 25 26. Eliz. In the common Pleas. Copy-holder IN Trespass brought by a Copy-holder against the Lord for cutting down and carrying away his Trees c. It was found by special Verdict That the place where c. was Customary lands of the Plaintiffs holden of the Defendant and that the Trees whereof c. were Chery Trees de
b. Sur Conusans de droit come ceo que il ad of the gift of the Husband that the same is not any Bar to the Wife of her Dower for the Election is not given to the VVife to claim her Ioynture or her Dower until after the Death of her Husband And so in the principal case Iudgment was given for the VVife CCCLXXXVII Le es Case Pasch 26. Eliz. In the Kings Bench. NIcholas Lee by his will devised his Lands to William his second Son Devise 1 Cro. 26. 3 Len. 106. And if he depart this VVorld not having issue Then I will that my Sons in Law shall sell my Lands the Devisor at the time of his devise having sir Sons in Law dyed William had Issue John and dyed John dyed without Issue one of the Sons in Law of the Devisor dyed the five surviving Sons in Law sold the Lands First it was clearly resolved by the whole Court That although the words of the Will are ut supra If William my Son depart this world not having Issue c. And that William had Issue who dyed without Issue here although it cannot be litterally said That William did depart this World not having issue yet the intent of the Devisor is not to be restrained to the letter that such construction shall be made That whensoever William dyeth in Law or upon the matter without Issue that the Land shall be subject to sale according to the authority committed by the Devisor to his Sons in Law And now upon the matter William is dead without Issue As in a Formedon in Reverter or Remainder although that the Donee in tail hath issue yet if after the estate tail be spent the Writ shall suppose that the Donee dyed without Issue a fortiori in the Case of a Will or Devise such construction shall be made As to the other point concerning the sale of the Lands Wray asked If the Sons in Law were named in the Will and the Clerks answered No See 30 H. 8. Br. Devise 31. and 39 Ass 17. Executors 117. such a sale good in case of Executors See also 23 Eliz. Dyer 371. and Dyer 4 5. Phil. and Mary Lands devised in tail and if the Devisee shall dye without Issue that then the Land shall be sold pro optimo valore by his Executors una cum assensu A. if A. dyeth before sale the power of the Executors is determined And afterwards it was clearly resolved by the whole Court That the sale for the manner was good and Iudgment was given accordingly CCCLXXXVIII Sir Gilbert Gerrard and Sherringtons Case Pasch 20 Eliz. In the Kings Bench. SIr Gilbert Gerrard Master of the Rolls Libelled in the Spiritual Court against Sherrington and A. his Servant for Tithes parcel of a Rectory whereof the said Sir Gilbert was Fermor to the Queen It was moved by Egerton Solicitor General That against the Kings Fermor a Prohibition doth not lye But the opinion of the whole Court was That a Prohibition doth lye and so it hath been adjudged before And afterwards Exception was taken to the surmise because the said Sir Gilbert had Libelled against the said Sherrington and his Servant severally Owen Rep. 13. Yelv. Rep. 128. and now in the Kings Bench they both had made a joynt surmise whereas they ought to have severed in their surmises according to the several Libels And it was so adjudged by the Court and therefore they were driven to make several surmises And afterwards Exception was taken because the said Sherrington and his Servant had delivered their surmises and suggestions by Attorney where they ought to be in proper person See the Statute of 2 E. 6. cap. 13. The party shall bring and deliver to the hands of some of the Iustices of the same Court c. the true Copy of the Libel c. subscribed or marked with the hand of the Party c. and under the Copy shall be written the surmise or suggestion And although it was affirmed by the Clerks of the Court that the common use and practice for twenty years had been not to exhibit such surmises or suggestions by Attorney Yet it was resolved by the whole Court that it ought to be by Attorney CCCLXXXIX Short and Shorts Case Pasch 26. Eliz. In the Kings Bench. IN an Action upon the Case upon Assumpsit to pay mony to the Plaintiff upon Request It was agreed Request That the Plaintiff by way of Declaration ought to alledge an actual Request and at what place and at what day the Request was made And it is not sufficient to say as in an Action of Debt Licet saepius requisitus c. and so it was adjudged CCCXC Pasch 26. Eliz. In the Kings Bench. ONe was Endicted in the County of Linc upon the Statutes of Wâ—st Indictment upon the Statute of news 1. Cap. 33. and 2 R. 2. Cap. 5. of News and the words were That Campian was not executed for treason but for Religion and that he was as honest a man as Cranmer the Bill was endorsed Billa vera but whether ista verba prolata fuerunt malitlose seditiose or e contr ignoramus The same Indictment being removed into the Kings Bench the party for the causes aforesaid was discharged CCCXCI Cole and Friendships Case Pasch 26. Eliz. In the Kings Bench. IN Ejectione firmae the Case was That Fricarrooâ— was seised Leases 4 Len. 64. and by Indenture betwixt himself of the one part and one Friendship his Wife and the Children betwixt them begotten at the Assignment of the Husband of the other part leased the said Land to the said Husband his Wife and their Children at the Assignment of the Husband for years they having at the time of the said Lease but one Child â— a Son Assignment afterwards they had many Children the wife dyed the Husband by his will assigned his second Son born after the making of the Lease to have the residue of the said Term and by the opinion of the Court nothing can come to the said Son by that Lease or by that assignment for if the Interest doth not vest at the beginning it shall never vest And afterwards is was moved In as much as nothing could vest in any of the Children born after the Lease made if these words At the Assignment of the Husband should be void and then the case should be no more but that Land is devised to the Father and Mother and their Children At another day viz. Trin. 26 Eliz. the case was moved again and as to the first Point the Court was of opinion as before That the Child assigned after the Lease made should not take And then it was moved That because Friendship and his Wife at the time of the making of the said Lease had one Son that he should take with his Father and Mother and that the words at the Assignment of Friendship should be void is matter of surplusage and the
Surrenders from the said Husband and Wife the Remainder over to the said John Buck in Fee upon condition to pay a certain sum of money c. It was moved That the Surrender is void and without warrant for the warrant was ad capiendum unum fursum redditionem and here are two several Surrenders and so the warrant is not pursued and then the Surrender is void Another matter was because the Remainder to John Buck by the words of the Deputation was absolute and without Condition and now in the Execution of it it is conditional so as this conditional estate is not warranted by the Deputation But the whole Court was clear of a contrary opinion in both the points and that all the proceedings were sufficient and well warranted by the Deputation Another matter was objected because that this Surrender and regrant is entred in the Roll of a Court dated to be holden the second of Maij and the Letter of Deputation bears date the third of June after But as to that The Court was clear of opinion that the mis-entry of the date of the Court should not prejudice the party for this Entry is not matter of Record but is but an Escape and if the parties had been at Issue upon the time of the Surrender made or of the Court holden the same should not be tryed by the Rolls of the Manor but by the Country and the party might give in Evidence the truth of the matter and should not be bound by the Roll and according to this Resolution of the Court Iudgment was given CCCXCVI Mich. 26 27. Eliz. In the Kings Bench. Fines levied THe Case was Tenant in tail leased for sixty years and afterwards levyed a Fine to Lee and Loveday Sur Conusans de droit come ceo c. with a Render to him and his Heirs in Fee And upon a Scire facias against the Conusees supposing the Lands to be ancient Demesn the Defendants made default for which the Fine was avoided and now the Issue in tail entred upon the Lessee for years and he brought an Ejectione firmae Sene facias â— Len. 117. and it was found That the Land was Frank Fee And all the question was If by the Reversal of the Fine by Writ of Disceit without suing forth a Scire facias against the Ter-Tenant should bind him or should be void only against the Conusee and not against the Lessee Atkin. It shall not bind the Lessee for years For a Fine may bind in part and in part not as bind one of the Conusees and not the other 7 H. 4. 111. A Fine levied of Lands part ancient Demesn and part at the common Law the same was by Writ of Disceit reversed in part as to the Land in ancient Demesn and stood in force for the residue 8 H. 4. 136. And there by award of the Court issued forth a Scire facias against the Ter-Tenants and the Iustices would not adnul the Fine without a certificate that the Land was Ancient Demesn notwithstanding that the Defendant had acknowledged it to be so but as to them who were parties to the Fine the Fine is become void as to the said parties and and he who had the Land before might enter i. And he said it should be a great inconvenience if no Scire facias or other Proces should be awarded against the Ter-tenant for he should be dispossessed and disinherited without privity or notice of it where upon a Scire facias he might plead matter of discharge in Bar of the Writ of Disceit as a Release c. which see Fitz. N.B. 98. And so although the Fine be reversed yet he might retain the Land and he resembled this case to the case of 2 H. 4. 16 17. In a Contra formam collationis against an Abbot a Scire facias shall issue forth against the Feoffee and so by the same reason here And for the principal matter he said That the Fine should be avoided against the parties but not against the Lessee Kingsmill The Scire facias brought against the parties only is good enough for they were parties to the Disceit and not the Ter-tenants It was adjorned CCCXCVII Mich. 26 27. Eliz. In the Kings Bench. Error Appearance by Attorney Dyer 135. b. A Writ of Error was brought upon a Iudgment in a Quid juris clamat It was assigned for Error that the Tenant did appear by Attorney whereas he ought not but in person because he is to do an Act in proper person if it be not in case of necessity where the Attorney may be received by the Kings Writ or plead matter in Bar of the Attornment as if he claim Fee c. or other peremptory matter after which Plea pleaded he may make Attorney 48 E. 3. 24. 7 H. 6. 69. 2â— E. 3. 48. 1 H. 7. 27. Another Error was because it is not shewed in the Quid juris clamat what estate the Tenant hath Another matter was If the Grantee of the estate of Tenant in tail after possibility of issue extinct shall be driven to attorn â— Len â—â— and it was said he should not for the priviledge doth pass with the grant See 43 E. 3. 1. Tenant in tail after possibility of issue extinct shall not be driven to attorn 46 E. 3. 13. 27. Ergo neither his Grantee Williams contrary As to the appearance of the Tenant by Attorney because the same is admitted by the Court and the Plaintiff the same is not Error which see 1 H. 7. 27. by Brian and Conisby 32 H. 6. 22. And he said That the Grantee should be driven to attorn for no other person can have the estate of the Tenant in tail after possibility of issue extinct but the party himself therefore not the priviledge and although he himself be dispunishable of Wast yet his Grantee shall not have such priviledge As if Tenant in Dower or by the curtesie grant over their estates the Heir shall have Wast against the Grantors for Wast done by the Grantee but if the heir granteth over his Reversion then Wast shall be brought against the Grantees See Fitz. N.B. 56. And it two Coparceners be and the one taketh a Husband and dieth the Husband being Tenant by the curtesie a Writ of Partition lyeth against him but if he granteth over his estate no Writ of Partition lyeth against the Grantee 27 H. 6. Stathams Aid If the Grantee of Tenant after possibility shall attâ—rn Tenant in tail after possibility of issue extinct shall not have Aid but his Grantee shall have Aid Clark The Grantee of Tenant in tail shall not be driven to attorn If Tenant in tail grant totum statum suum the Grantee is dispunishaple of wast so if his Grantee grant it over his Grantee is also dispunishable c. It was adjorned CCCXVIII Gravenor and Masseys Case Mich 26 27. Eliz. In the Kings Bench. GRavenor brought a Writ of Error upon a common
Southcotes case Southcotes case So a Title of Cessavit in the Feoffees shall be executed by the Statute So if the King grants to the Feoffees in use a Fair Market or Warren these things shall be executed by the Statute Clerentius case as it was holden in the Case of Clarentius As to the Condition they conceived That it is broken for where the Devisor had allowed to the Devisee to discontinue for life to make a Ioynture to his Wife now he hath exceeded his allowance for he might have made a Ioynture to his wife indefeisable by Fine upon a Grant upon a Render for life c. But this Fine with the Proclamations is a Bar to the former entail which was created by the Devise and hath created a new entail and the former tail was barred by the Fine against the intent of the Devisor Also by this Fine he hath created a new Remainder so as his Issue inheritable to his new entail might alien and be unpunished which was against the meaning of the Devisor And as to the Lease for lives to the Defendants the same is not any breach of the Condition for that is warranted by the Statute of 32 H. 8. which enables Tenant in tail to make such a Lease so as it cannot be said Discontinuance which Anderson and Periam granted But the Fine levied after is a breach of the Condition and then the Re-entry upon the Lessees who have their estates under the Condition is lawful As where the wife of the Feoffee upon Condition is endowed and afterwards the Condition is broken now by the Re-entry of the Feoffor the Dower is defeated And Shutleworth put this case A Feoffment is made upon Condition that the Feoffee shall lease the Lands to A. for life and afterwards grant the Reversion to B. in Fee the Feoffor may re-enter for by this Conveyance he in the Reversion is immediate Tenant to the Lord where by the intended assurance the particular Tenant ought to be Puckering Fenner and Walmesley contrary And by Walmesley By this devise the use only passeth and not the Land it self for the Statute of 1 R. 3. extends only to Acts executed in the life of Cestuy que use and not to devises which are not executed till after the death of the Devisor which see 4 Ma. Dyer 143. Trivilians case See also 6 E. 6. Dyer 74. The Lord Bourchiers case but 10 H. 7. Cestuy que use deviseth That his Executors shall sell the Land now by the sale of the Land in possession for the same is in a manner an Act in his life for the Vendee is in by Cestuy que use and here is a Condition and not a Limitation for the nature of a Condition is to draw back the estate to the Feoffor Donor or Lessor but a Limitation carrieth the estate further And he conceived That the Condition is not broken by this Act for the intent of the Devisor is pursued for his meaning was That the wife should have a Ioynture indefeisable against the issue in tail and that the inheritance should be preserved that both should be observed And he said that this Fine being levied by him in the Reversion upon an estate for life is not any discontinuance but yet shall bar the estate Tail. And the Iustices were clear of opinion that the Condition is broken and also that the intent of the Condition is broken for it might be that Charles had issue by a former wife which by this Fine should be disinherited and a new Entail set on foot against the meaning of the Devisor c. and afterwards Iudgment was given for the Plaintiff CCCCX Simmes and Wescots Case Hill. 31 Eliz. Rot. 355. In the Kings Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 147. That in consideration that he would marry the Defendants Daughter the Defendant promised to give him 20 l. and also to procure him all the Corn growing upon such Lands and to provide necessaries for the wedding dinner the Defendant did confess the communication betwixt them and that he promised to give the Plaintiff 20 l. so as he would procure a Lease of certain Lands to his Daughter for her life absque hoc that he promised modo forma The Iury found the promise of the 20 l. but not any other thing it was moved in arrest of Iudgment that the Assumpsit whereof the Plaintiff hath declared although it consist of divers things yet it is entire and if the whole is not found nothing is found and the Case of 21 E. 4. 22. was cited touching variance of Contract as where an Action of Debt is brought upon a Contract of a Horse and the Iury found a Contract for two Horses the Plaintiff shall never have Iudgment On the other side it was said That the Plaintiff shall recouer damages for the whole that is found i. for the 20 l. See 32 H. 8. Br. Issue 90. In an Action upon the Case the Plaintiff declared that the Defendant did promise to deliver four Woollen-cloaths the Defendant pleaded That he did promise to deliver four Linnen-cloaths absque hoc that he promised c. the Iury found That the Defendant did promise to deliver two Woollen-cloaths and the Plaintiff did recover damages for the two So in Wast the Wast is assigned in succidendo 20 Oaks upon which they are at Issue the Iury find but ten Oaks the Plaintiff shall have Iudgment for so much and shall be amerced for the residue Gawdy Iustice Here are several Assumpstis in Law as Br. 5. Ma. Action sur le Case 108. a man in consideration of a Marriage assumes to pay 20 l. per Annum for four years two years incur the party brings an Action upon the Case for the arrearages of the two years Wray In an Action upon the Case the Plaintiff ought not to vary from his Case as if a promise be grounded upon two considerations Ragula and in an action upon it the Plaintiff declares upon one only he shall never have Iudgment and here the Iury have not found the same promise Clench If promise be made to deliver a Horse and a Cow and the Horse is delivered but not the Cow the party shall have an Action for the Cow but he shall declare upon the whole matter and afterwards Iudgment was given quod querens nihil capiat per billam CCCCXI Stile and Millers Case Trin. 31 Eliz. In the Kings Bench. Tithes 1 Cro. 161 578. 11 Co 13. A Parson Leased all his Glebe Lands for years with all the profits and commodities rendring 13 s. 4 d. pro omnibus exaction ibus demandis and afterwards libelled in the Spiritual Court against his Lessees for the Tithes thereof the Lessee obtained a Prohibition See 32 H. 8. Br. Dis 17. 8 E. 2. Avowry 212. Wray Tithes are not things issuing out of Lands nor any secular duty but spiritual and if the Parson doth release to
the Seisin or possession of the Tenant in Demesn who ought immediately to have paid the said Rent so behind to the Testator in his life or in the Seisin or possession of any other person or persons claiming the said Lands only by and from the said Tenant by Purchase Gift or Discent in like manner as the Testator might or ought to have done in his life time And now it was moved to the Court. If A. grant a Rent-charge to B. the Rent is behind B. dyeth A. infeoffeth C. of the Lands in Fee who diverse years after infeoffeth D. who divers years after infeoffeth E. It was holden by Walmesey Periam and Windham Iustice against Anderson Lord chief Iustice that E. should be chargeable with the said arrearages to the Executors of A. But they all agreed That the Lord by Escheat Tenant in Dower or by the curtesie should not be charged for they do not claim in by the party only but also by the Law. CCCCXIX Wigot and Clarks Case Hill. 32 Eliz. In the Common Pleas. IN a Writ of Right by Wigot against Clark for the Mannor of D. in the County of Glocester the four Knights gladiis cincti did appear Writ of Right and took their corporal Oath that they would choose 12 c. ad faciendum magnam Assisam and by direction of the court they withdrew themselves into the Exchequer chamber and there did return in Parchment the names of the Recognitors and also their own names and at the day of the return of the Pannel by them made the 4 Knights and 12 others were sworn to try the issue and it was ordered by the Court That both the parties scil the Demandant and the Tenant or their Attornies attend the said 4 Knights in the Exchequer chamber and to be present at the making of the Pannel so as each of them might have their challenges for after the return of the Pannel no challenge lieth and thereupon the said 4 Knights went from the Bar and within a short time after sitting the Court they returned the Pannel written in Parchment in this form Nomina Recognitorum c. inter A. petentem B. tenentem and so set down their names six other Knights ten Esquires and four Gentlemen and the Iustices did commend them for their good and sufficient Pannel and thereupon a Venire facias was awarded against the said parties CCCCXX Pory and Allens Case Trin. 30 Eliz. Rot. 611. In the Common Pleas. THe case was That Lessee for 30 years leased for 19 years 1 Cro. 173. Owen 97. Post 322 323. Surrender 1 Cro. 302. and then the first Lessee and one B. by Articles in writing made betwixt them did conclude and agree That the Lessee for 19 years should have a Lease for three years in the said Lands and others and that the same should not be any surrender of his first Term to which Articles the said Lessee for 19 years did after agree and assent unto and it was the opinion of all the Iustices of the Court that the same was not any surrender and they also were of opinion That one Termor could not surrender to another Termor CCCCXXI Glanvil ane Mallarys Case Trin. 31 Eliz. Rot. 321. In the Common Pleas. GLanvil was Plaintiff in Audita Querela Audita Querâ—la 1 Cro. 2â—8 against Mallary upon a Statute Staple for that the conusor was within age at the time of the acknowledging of it it was moved for the Defendant that the Court ought not to hold Plea of this matter because there was no Record of the Statute remaining here and therefore by Law he was not compellable to answer it c. and a President was disallowed 5 H. 8. where such a pleading was allowed and judgment given that the Defendant eat sine die Loves Case Dudley and Skinners Case vide 16 Eliz. Dier 332. But on the other side divers presidents were shewed that divers such Writs had been shewed in the Common Pleas as 30 Eliz. Loves case and the Lord Dudley and Skinners case and thereupon it was adjudged that the Action did well lye in this Court. CCCCXXII Pet and Callys Case Mich. 32 Eliz. In the Common Pleas. Debt IN Debt upon a Bond for performance of covenants the case was I. S. by Indenture covenanted with I.D. that such a woman viz. R.S. at all times at the request and charges of I.D. should make execute and suffer such reasonable assurances of such Lands to the said I.D. or his heirs as the said I. D. or his heirs should reasonably devise or require I.D. devised a Fine to be levied by the said Woman and required her to come before the Iustices of Assise to acknowledge it and the woman came before the said Iustices to that intent and because the said woman at that time was not compos mentis the said Iustices did refuse to take the Conusans of the said Fine and this was averred in the pleading in an Action brought upon the said Bond for performance of Covenants where the breach was assigned in not acknowledging of the said Fine and upon the special matter the party did demur in Law and the opinion of the whole Court was that the condition was not broken for the words are general to make such reasonable assurances which c. but if the words had been special to acknowledge a Fine there if the Iustice doth refuse to take such acknowledgment the Bond is forfeited for the party hath taken upon him that it should be done Wangford and Sextons Case Mich. 22 Eliz. In the Common Pleas. 1 Cro. 174. Kel 87. a. THe Plaintiff had recovered against the Defendant in an Action of Debt and had execution The Defendant after the day of the Teste of the Fierifacias and before the Sheriff had medled with the execution of the Writ bona fide for money sold certain goods and chattels and delivered them to the buyers it was holden by the Court that notwithstanding the said Sale that the Sheriff might do execution of those goods in the hands of the buyers Executions for that they are liable to the execution and execution once granted or made shall have relation to the Test of the Writ CCCCXXIV Wilmer and Oldfields Case Trin. 29 Eliz. Rot. 2715. In the Common Pleas. Award IN Debt upon a Bond the Condition was to perform the Award of I. S Antea 140. c. the Arbitrators make Award That the Defendant before such a day shall pay to the Plaintiff 1000 l. or otherwise procure one A. being a stranger to the Bond to be bound to the Obligee for the payment of 12 l. per annum to the Plaintiff for his life the Defendant pleaded the performance of the Award generally the Plaintiff assigned the breach of the Award in this That the said A. had not paid the said 100 l. without speaking of the cause of the award of the 12 l. per annum upon which the
yet afterwards he seemed to be of other opinion And as to that which hath been objected That the Lease is void to all intents and purposes according to the words of the Statute for by some it cannot be resembled to the case cited before of the Bishop of Coventry and Lichfeild that such a Grant should bind him and not his Successors for if this Grant in our Case shall not be void presently it shall never be void for the Colledge never dieth no more than Dean and Chapter Mayor and Commonalty To that it was answered by Drew That although there be some difference betwixt such Corporations and that the words of the Statute are general void to all intents constructions and purposes yet they shall construed according to the meaning of the makers of the Act whose scope was to provide for the Successors and not for the present Incumbent and to the utter impoverishing of all Successors without any respect to the party himself as it appeareth by the preamble of the said Statute where it is observed That by long and unreasonable Leases the decay of Spiritual Livings is procured for the remedying and preventing of which long Leases this Act was made and that the Successors should not be bound thereby And these Leases are not void simpliciter sed secundum quid i. e. as to the Successors As upon the Statute of 11 H. 7. cap. 20. Discontinuances made by Women c. shall be void and of none effect yet such a Discontinuance made is good against the Woman her self So upon the Statute of 1 Eliz. concerning Bishops See now Coke Lincoln Colledge Case 37 Eliz. in the third Reports 60. A Lease made by Dean and Chapter not warranted by the said Statute shall not be void untill after the death of the Dean who was party to the Lease So upon the Statute of 13 Eliz. of fraudulent Conveyances such fraudulent Conveyance is not void against the Grantor but against those who are provided for by the said Statute and that the Lease in the principal case is not void but voidable all the Iustices agreed to be avoided by the Colledge or any other who claim by it and by Anderson If such a Lease should be void then great mischief would fall to the Colledge for whose benefit this Statute was made for if such Lease be made rendring a small Rent then if before the defect be found or espied the Rent was arrear the Colledge could not have remedy for the said Rent Also by Periam Such a Lessee might have an Action of Trespass against a stranger who entreth upon the Land which proves that the Lease is not void but voidable and afterwards notwithstanding all the Objections Iudgment was given for the Plaintiff and the chief Authority which moved Periam Iustice to be of such opinion was Lemans case cited before 28 H. 8. Dyer 27. where a Lease was made to a Spiritual person against the Statute of 21 H. 8. and a Bond or Obligation for performance of covenants and thereupon an Action was brought and the Plaintiff therein had Iudgment and recovered which could not have been if the Lease were utterly void against the Lessor and Lessee as the very words of the Statute are and although it is not alledged in the Book that that was any cause of the Iudgment yet in his opinion it was the greatest cause of the Iudgment in that case CCCCXXVIII Bighton and Sawles Case Pasch 35 Eliz. In the Common Pleas. IN an Action upon the case it ws agreed by the whole Court 1 Cro. 235. That where Iudgment is given that the Plaintiff shall recover and because it is not known what damages therefore a Writ issueth to enquire of the damages That the same is not a perfect Iudgment before the damages returned and adjudged and therefore they also agreed that after such award and before the damages adjudged that any matter might be shewed in Court in arrest of the Iudgment and by Periam Iustice the difference is where damages are the principal thing to be recovered and where not for if damages be the principal then the full Iudgment is not given until they be returned but in Debt where a certain sum is demanded it is otherwise CCCCXXIX Maidwell and Andrews Case Pasch 33 Eliz. In the Common Pleas. MAidwell brought an Action of Covenant against Andrews Covenant and the Case was this That R. was seised of Lands and leased the same for life rendring Rent and afterwards devised the Reversion to his wife for life and died Andrews the Defendant took to wife the wife of the Devisor the Devisee of the Reversion afterwards Andrews bargained and sold the said Reversion to one Marland and his heirs during his own life and afterwards granted the Rent to the Plaintiff and covenanted that the Plaintiff should enjoy the said Rent during his Term absque aliquo legitimo impedimento of the said Andrews his Heirs or Assigns or any other person claiming from the said Marland Marland died seised and the same descended to B. his heir and the breach of the Covenant was assigned in this i. in the heir of Marland who hath the Rent by reason of the Grant of the Reversion to Marland ut supra the Defendant pleaded the Grant of the Reversion to Marland per scriptum without saying Sigillo suo sigillat hic in Curia prolat absque hoc that the said Reversion and Rent descended to B. and thereupon the Plaintiff did demur in Law and the causes of the Demurrer was assigned by Yelverton Serjeant 1. The Grant of the Reversion is pleaded per sciptum and he doth not say sigillat for a Reversion cannot pass without Deed although it be granted but for years and a bare writing is not a Deed without sealing of it and therefore the pleading ought to be per scriptum suum sigillat or per factum suum for factum suum implies the ensealing and delivery 2. It ought to be pleaded hic in Cur. prolat for the Court is to see such Deed to the end they may know if it be a lawful Deed Traverse 1 Cro. 278. without razure interlining or other defects 3. The Defendant hath traversed the descent where he ought to have traversed the dying seised for of every thing descendable the dying seised is the substance and the descent is but the effect And although the Grant of the Reversion was but for the life of the Grantor yet the estate granted is descendable as 27 E. 3. 31. Tenant by the Courtesie leaseth his estate to one and his heirs the Grantor dieth his Heir entreth and a good Bar against him in the Reversion and see 14 E. 3. Action 56. Annuity granted to one and his Heirs for the term of another mans life the Grantor dieth living Cestuy que vie the Heir of the Grantor brings a writ of Annuity and it was holden maintainable and he said that were the dying seised is confessed and avoided by
shall not supply the defect of the words in the grant V. Gilbert and Sir George Harts Case Mich. 25 and 26 Eliz. in the Kings Bench. GIlbert brought Debt upon Escape against Sir George Hart Sheriff of Kent and declared Escape 1. Cro. 188. 271. That he recovered a certain debt against A. who was taken in Execution c. And the Case was That the said A. was taken in Execution in the time of the old Sheriff and escaped also then and afterwards the Defendant being Sheriff the Plaintiff again sued a Scire facias against the said A. upon the Iudgment aforesaid upon which Execution was awarded by default and thereupon issued a Capias ad satisfaciendum by which A. was taken and escaped And by the opinion of all the Iustices the Defendant in this Case shall be charged for notwithstanding that A. was once in Execution which was determined by escape in the time of the old Sheriff yet when Execution was now awarded against him upon his default in the Scire facias the same shall bind the Sheriff out of whose custody he escaped VI. Moor and Farrands Case Mich. 25 and 26 Eliz. in the Common Pleas. MOore leased Lands to Farrand upon condition that he 1. Cro. 26. Condition where shall not bind Administrators 1. Anders 123. Dy. 6. 1 Cro. 26. 757 3. Len. 67. his Executors or Assigns should not alien without the leave of the lessor Farrand died intestate his Wife took Letters of Administration and aliened without leave and by Periam Iustice she is not within the penalty of the Condition for the Administrator is not meerly in by the party but by the Ordinary And by Meade and Periam If a Lease for years upon such a Condition be extended upon a Recognisance the same is not an alienation against the Condition But if feme lessee for years upon such Condition taketh a Husband and dieth the Husband is within the danger of the Condition for he is Assignee If the King grant to a Subject bona catalla felonum and the lessor for years upon such a Condition be out-lawed upon which the Patentee enters Now by Periam the Patentee is not bound by the Condition Meade contrary for the Condition shall go with the Land. VII Maynyes Case Mich. 25 and 26 Eliz. in the Exechequer MAyney seised of Lands in Fee took a Wife Co. 1. Inst 41. â— made a Feoffment to a stranger committeth Treason and thereof is attainted and hath a Charter of Pardon and dieth It was moved by Plowden in the Exchequer if the Wife of Mayney shall have Dower against the Feoffee Dower Manwood Chief Baron by reason of this Attainder Dower cannot accrue to the Wife for her title begins by the Enter-marriage and ought to continue and be consummated by the death of the Husband which cannot be in this Case for the Attainder of the Husband hath interrupted it as in the Case of Elopement Attainder where an Estoppel And this Attainder is an universal Estoppel and doth not run in privity only betwixt the Wife and him to whom the Escheat belongs but every stranger may bar her of her Dower by reason thereof for by the Attainder of her Husband the Wife is disabled to demand Dower as well as to demand his Inheritance and he cited the Resolution of all the Iustices of England in the Case of the Lady Gates 4. Ma. Dyer 140. and the Pardon doth not help the matter for the same extends but to the life of the Offender but doth not take away the Attainder by which she is barred to demand Dower during the said Attainder in force See the Statute of 5. E 6. cap. 11. Vid. Fitz. Dower 82. 13. E 3. 8 E 3. Dower 106 Fitz. Utlag 49. 8 Mich. 25 and 26 Eliz. in the Exchequer 4. Len. 117. Leases for three lives of Copy-hold estate are not within Stat. 41. Eliz. IN the Exchequer it was found by special verdict That the Guardians and Chanons Regular of Otlery were seised of the Mannor of O c. and that 22 H 7. at a Court holden there granted the Lands in question to W. and W. his Son for their lives by Copy according to the Custom of the said Mannor and that afterwards 30 H 8. They leased the Lands by Indenture to H. rendering the ancient and accustomed Rent and afterward surrendred their Colledge c. and afterward W. and W. dyed And if that Lease so made during the customary estate for life notwithstanding the Statute of 31 H 8. be good or not was the Question being within a year before the surrender c. It was argued by Egerton Sollicitor that the said Lease is 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 that right or possession which W. had at the time of the making of the Lease were an interest or an estate for life And as to this word estate it is nothing else than measure of time for an estate in Fee-simple is as much as to say an interest in the Lands for ever and the like of other estates and therefore here W. and W. had at the time of the making of this Lease an estate for life in the thing demised And although such customary Tenants are termed in Law Tenants at will yet they are not simply so nor meerly Tenants at will but only Tenants at will secundum Consuetudinem Manerii Copy-holdeâ—â— Interest which Custom warrants his possession here for his life and therefore it is a more certain estate than an estate at will for the Copyholder may justifie against his Lord so cannot a Tenant at will whose estate is determined at the will and pleasure of his Lessor And although this estate is but by Custom and by no Conveyance the estate is raised it is as material so as it be an estate and this estate being supported by Custom is known in Law an estate and so accounted in Law and the Law hath notably distinguished Copy-hold Tenancies by Custom and Tenancies at will by the Common Law for a Copy-holder shall do Fealty shall have aid of his Lord in an Action of Trespass shall have and maintain an Action of Trespass against his Lord his Wife shall be indowed the Husband shall be Tenant by the Curtesie without new admittance and it was adjudged in the Common Pleas 8. Eliz. That if a Copy-holder surrender to the use of another for years the Lessee dieth his Executors shall have the residue of the Term without any admittance M 14. and 15. Eliz. a Copy-holder made a Lease for years by Indenture warranted by the Custom it was adjudged that the Lessees should maintain Ejectione firm although it was objected that if it were so then if
the Plaintiff doth recover Post 16 2 Len. 119. he should have Habere facias possessionem and then Copyholds should be ordered by the Laws of the Land 10 Eliz. Lord and Copy-holder for life the Lord grants a Rent-charge out of the Mannor whereof the Copy-hold is parcel the Copy-holder surrenders to the use of A. who is admitted accordingly he shall not hold it charged but if the Copy-holder dieth so that his estate is determined and the Lord granteth to a stranger de novo to hold the said Lands by Copy this new Tenant shall hold the Land charged and so was it rated and adjudged in the Common Pleas. It was adjorned IX The Lord Paget and the Bishop of Coventry and Leichfields Case Mich. 25. 26 Eliz. in the Kings Bench. THE Bishop of Coventry and Leichfield was endicted of Trespass in the County of Srafford Endictment of breaking and entring of the Close of Thomas Lord Paget called the Vineyard Challenge the Bishop traversed the Endictment and at the day of appearance of the Iury the Bishop challenged the Array because that he being a Peer of Parliament no Knight was returned c. Vpon which challenge the Queens Counsel did demur in Law but at last for expedition c. the Court delivered to the Councel of the Bishop a Bill sealed to save him the advantage of the said challenge And the Enquest was taken de bene esse who found that one A. by the Commandment of the Bishop entred into the said Close called the Vineyard being then in the occupation of one B. at will of the said Lord Paget and did the Trespass viz. digged a Turff there and there left it and so departed The matter of challenge was many times argued and it was argued against the said challenge because that the King is party against whom no Lord of Parliament shall have such Prerogative To which it was answered on the other side that so much the rather the challenge lyeth in the Case for where a Peer of the Parliament is to be tryed upon an Endictment of Treason or Felony it shall be per pares if upon appeal of Murder or Felony by ordinary tryal See 33. H. 8. Br. Tryal 42 and Br. Enquest 49. It was said on the Plantiffs side that here the Bishop is quodam modo and the Venire facias issued at his own Sute and therfore the mismaking of the Pannell is his own fault But by Gaudy Iustice the Venire facias in this Case is reputed in Law the Sute of the Queen notwithstanding that the parry endicted for his expedition doth pay the Fees for the Process for that the Clarks of the Court have encroached for their gain for otherwise there should be none paid by the Queen and by the better opinion of the Court the challenge was holden good Another matter was moved because the Endictment is clausum Domini Paget and it appeareth by the Verdict that the said close at the time of the Trespass was in the occupation of B. at the will of the Lord Paget for the Lord Paget cannot have an Action of Trespass against the said Bishop or the said A. upon the matter and by Wray the Lord Paget cannot have Trespass Quare clausum fregit intravit upon this matter but for digging upon the Land demised or cutting of Trees an Action lyeth 19 H. 6. Tit. Trespass 36. But here the Endictment is that one F. entred by the commandment of the Bishop upon which matter no Action lyeth against the Bishop by the Lord Paget and especially in this case where the said A. did not carry away the said Turff from thence But by Wray notwithstanding that the Action of Trespass doth not lye for the Lessor yet it is well enough by way of Endictment Another exception was taken to the Endictment because it is alleadged 2 Len. 183. that A. by Commandment of the Bishop entred and did the Trespass and no place is shewed where the commandment was and for this cause the Bishop was discharged X. Stonley and Bracebridges Case Mich. 25 26 Eliz. in the Kings Bench. IN Ejectione firmae by Stonley against Bracebridge the case was Pâ—o. Com. 417. 418. Thomas Bracebridge Father of the Defendant was seised of the Mannor of Kingsbury to him and to the heirs males of his body and 32 H. 8. Leased a Field called Stalling parcell of the said Mannor to Tho. Coke for years and afterwards 4 E. 6. Leased the said Field the first Lease being in esse to Sir Geo. Griffith for seventy years who assigned the same to A. Bracebridge Brother of the Lessor and to Joyce Wife of the Lessor and afterwards 5 E 6. the said Tho. Bracebridge the Lessor by his Deed Indented gave the said Mannor to the said Sir George by these words dedi concessi barganizavi vendidi Proviso and upon condition That the said Sir George should pay to the said Thomas Bracebridge within fifteen days after ten hundred pounds and if he fail of payment thereof that then after the said fifteen days the said Sir George should be seised of a Tenement parcel of the said Mannor of the yearly value of three pounds now of sate in the occupation of Thomas Smith to the use of the said Thomas Bracebridge for his life and after to the said Sir George until he had levyed five hundred pounds for the payment of the debts and the education of the children of the said Thomas Bracebridge and after to the use of the Defendant in tail And of the residue of the said Mannor to the use of the said Tho. Bracebridge and of the said Joyce his Wife for their lives c. Tho. Bracebridge made livery to the said Sir George in one place parcel of the said Mannor which was in his own occupation in the name of the whole Mannor the fifteen days incur without payment of the said ten hundred pounds the Indenture is enroled Coke attorns Joyce dyes Tho. Bracebridge grants the Lands to a stranger by Fine and before Proclamations Thomas his Son and Heir apparent within age enters in the name of the Feoffees by reason of the forfeiture Proclamations are made Tho. Bracebridge the Father dyeth the Term of Coke expireth A. enters and leaseth to the Plantiff who enters upon whom Tho. Bracebridge the Son enters upon which Entry the Action is brought it was argued by Beamount the elder Although here in the Indenture of bargain and sale there is not an express consideration set down in the common form of a consideration yet because the consideration is implied in the condition it is good enough see the Proviso and condition ut supra that the said Sir George should pay c. As if I bargain and sell to you my Land Proviso that you pay to me for the same at such a day one hundred pounds that consideration set down in the form of a condition is as effectual as if it had been