good and it shall be intended that the Parson is alwaies resident in his Parsonage as a Surrender or an Attournment shall be intended upon the Land and it is not requisite to name any place And it seemed to Harvey that the Arbitrement was good although that all the Parishioners had not submitted to it Because that these were bound for them 18 E. 4. 22. 1â—… 1. And Iudgement was afterwards in the next Term given for the Plaintiff Iohn Paston against William Manne IOhn Paston brought an Ejectione firm against Manne and a special verdict was given to this effect scilicet Edward Paston was seised of the Mannor of Bingham parcel whereof was the Land in question grantable by Copy And he by his Deed indented in consideration of a Mariage to be had between Tho. Paston his Son and the Daughter of I. S. covenanted with I.S. to stand seis'd of the Mannor to the use of his Son for life and after to Mary the wife for life the remainder to the first Son between them in tail with divers remainders over The Mariage was solemnised and they found moreover that there was a Custome that the Lord might have liberty of fould course for 100 Sheep throughout all the Copiholdland lying in the East and North field the Customary places and Lands in these Fields not being inclosed from the Feast of St. Michael to the Feast of the Annunciation if the grain was carried in by that time Or otherwise from the time of the carrying in to the Annunciation if it be not sowed with seed again and that those 15 acres in question be in the Corn-field And that Thomas Paston granted that Copihold to the Defendant in Fee and that in 14 Iacobi the Defendant enclosed the Land without Licence of the Lord and if Licence was obtained then he ought to have paid a Fine which the Lord would have assest And if any of the Tenents inclose without Licence they find that they have used to be punisht and pay those penalties which the Lord would assess And they also found that that incloser by the Copiholder was with a Ditch of six foot in breadth and 3 foot in depth and that the land which he digged out was but to make a Bank upon the Land upon which a hedge of quick thorn was set and that four gaps were left in the inclosure of nine feet in breadth And they found that the Defendant did not at any time compound for a Fine And then they find that the Copiholders which before this inclosed without Licence were amerced and commanded upon a pain before a certain day to throw up their inclosures And now for this inclosure Thomas enters for a forfeiture and dies his Wife makes a Lease of it and the Defendant ejects the Lessee Atthowe held that he had forfeited his Copihold for that inclosure is against the Custome of the Mannor which is found For the Custome is the life and soul of a Copihold as it is in the 4 Rep. 31. Brownes Case The breaking of that is a forfeiture and make the Copiholder have an Estate at will meerly whereas before he had an Estate not meerly at the will of the said Lord but secundum volunt domini And so by the inclosure the Lord cannot have his fould course and so the custome is broken 42 Ed. 3. 25. For not doing the services the Lord may enter and have the Emblements If a Copiholder makes a feoffment it is a disseisin for which there may be an Assise of novel disseisin de libero tenement of Lands whereof the profits or of the Rent issuing out of the Land there is a forfeiture And Littleton said that a rescous Replevin Enclosure and denying the Rent is a Disseisin And what is a Disseisin of a Freehold is a forfeiture of the Copihold Rescous by a Copiholder is a forfeiture for all the books say that a denial of a rent is a forfeiture And it is held that if a Copiholder brings a replevin it is a forfeiture and the Lord may enter presently But if he avow then perchance he hath dispensed with it And an inclosure is more strong than a denial 11 E. 3. Assise 88. cited in Taverners Case 4 Rep. The heir cannot have an Assise before entry but if the Defendant menaces him or stops up the way it is a Disseisin 14 Ass plac 19. 8 E. 2. As 374. A stopping up of the way is a disseisin but if he can go another way he can have nusance 29 Ass 49. But it will be objected that the Lord had another remedy for he might have an Action of the Case And for that not enter for a forfeiture But an Action of the Case does not restore him to the Freehold but give dammages only And if an Assise be brought it affirms the Disseisin and makes forfeiture and that agrees Taverners Case That where several Copiholds were granted by one Copy a rent denied of one forfeits that and not the others But admit it is a forfeiture if the leaving the Gaps dispence with it And it seem'd that not for he loses the profit of the Fould-course for 500 Sheep would tear their fleeces by such a narrow passage and the inclosure is an impediment to hinder their spreading in their feeding And so every one also may inclose and leave gaps and the Lord perhaps compell'd to put and remove the Shéep ten times in one day and so the Sheep worse at night than in the morning c. Secondly if the Lord had given Licence then he would have had a Fine but he would so be his own Carver And the Lord had no remedy for a Fine upon admittance after Surrender 4 Rep. 46. He had no remedy there by Action of debt nor by Action of the Case without promise to the Admittance c. Lord grants a Copihold Escheat he ought to improve his Fine before or he hath no remedy for he is not compelled to grant the Copihold again and therefore he shall have what Fine he will And it is not found also who may inclose paying his Fine A Lord admits a Copiholder for life with remainders the admittance of Tenent for life was the admittance of the remainder but he shall have his Antefine 4 Rep 23. And if they may inclose paying a Fine then the Lord had an Estate at the will of the Tenents Thirdly when it is found that the Lord amerced and commanded upon pain c. that is no mitigation or dispensation of the forfeiture For ruinous Houses pull'd down is a forfeiture without Custome to the contrary Because no waste lies against a Copiholder as against Lessee for years And yet the Lord in favour may amerce such a Copiholder if he will and that is no dispensaition but an affirmation of the forfeiture And so because the Lords were conscionable and would not take the forfeiture that does not prove that it is a Dispensation Fourthly the making of the gap and hedge of
himself from all rights as concerning himself yet the Donor shall by force of this Statute which at the Common law he could not And if the Donor will release all his right in the Land to the Donee after a discontinuance by Feoffment his release though it will extinguish no right to the very Land yet it will extinguish Rents which proves that the Donee by his Feoffment cannot dismiss himself of all his right but that by the Statute of West his alienation is disabled as to that but that the Donor may avow for the Rent But wheresoever Tenant in tayl suffers a Recovery or levies a Fine the Rents together with the entayl ceases And the answer as to that is imperfect to resemble it to the Case of tenant in see simple doth alien and yet the Lord may avow upon him for the Cases have no resemblance for as Littleton well distinguisheth when Tenant in fee hath departed with his whole Estate he is no more Tenant to the Lord to avow upon though the Lord if he Will may avow upon him for the arrerages and if the Lord after future alienation release to him all his rights in the Land the Release is void to release the Rents and Services in all which it differs materially from the other Case and it is an equall proportion of the Law That when the Lord aliens his signory the Tenant is to he acquainted that all Arrearages may be paid that he may have no after-reckonings for after notice and the Arrerages paid the avowrie vanisheth Now for the Heir in tayl claiming from his Ancestor after his Feoffment by descent from him thereby allowing a right to remain in him against his Feoffment The Case is more difficult because during the Feoffor there can be no motion of that right neither by the Feoffor who hath hard himself nor his Issue because his Right is not yet come yet let me put this Case upon the Statute 11 H. 7. upon the opinion of Mountague Chief Iustice If Tenant in tayl Iointress make a Feoffment the person to whom the land doth belong after her death may enter and hold it according to his right Now till such Entry there is a discontinuance but when the Issue enters he is an Heir intayl et quasi eins per discent But now generally when Tenant in tayl hath made a Feoffment and dies the Heir shall bring a Formedon in the Discender and shall count that descendere debet from that Ancestor that made the discontinuance performam doni and therefore the Writ saith discendit jus it is as much devenit jus It is true that regularly a Feoffment bars all former rights and future rights yet respect to be had to Estrangers Albanies Case 2 Rep. Archers Case 1 Rep. 66. 9 H. 7. And therefore in Archers Case Lands were demised to one fore life remainder to his first Heir male Tenant for life made a Feoffment in fee and died his next Heir was barred of his right for ever by the Feoffment A man seised of Land by right of his Wife makes a feoffment in fee and then the Estate is made back to the Wife she is thereby remitted and her Husband shall never be Tenant by the Courtesie and therefore well resolved if Tenant in tayl discontinue and levy fine with Proclamations is no bar to the Estate tayl Now this Case is irregular because it standeth by Act of Parliament which is able to make the same Act good to one purpose or person and void or voidable to another as the Statute of Ecclesiastical persons and binds the party but is void or voidable against the Successors and shall nevertheless when they enter be in by succession And that there is still a right remaining in the Tenant in tayl appears in that he hath still in him a power to bind it more finally and totally by fine and recovery if he pursue them rightly and therefore note Cuppledikes Case If Tenant in tayl with divers remainders over make a Feoffment and Feoffee vouch not the Feoffee Tenant in tayl in possession but the first in Remainder by the Statute the Feoffees are not bound but are remitted and Maunsells Case there is cited where one recovery is a bar to 3 several Intayls with double voucher And this is called jus extinguendi which he could not extinguish and discharge if not in him and in his power and therefore there is no cause to frame Abeyances needless and in vain but the Law allows not nor admits not but in Cases of necessity as in the vacancy of Bishops Parsons and other Ecclesiastical persons or the like Remainders to right Heirs upon Freehold abeyances are not allowed but where the original Estate required them or where the consequences of Estates and Cases do require them As for the first in Case of single Corporations Bishops Deans and Parsons which must dye and a vacancy of freehold or a Remainder to the right Heirs of I. S. yet living Or Secondly in Case of congruity as if a man gives a Warranty and die his Heir in ventre sa mere may not be vouched but if there be Heir he may be vouched and a Vouchee may take and plead a Release quasi tenens or may lease a Fine to the Defendant of the Land in Question But for Estates that of their own nature and origination creation are perfect and intire as this Estate entayl is the Law permits not vain affected abeyance or fictions by the voluntary Act of the party as this to no good which should preserve a right to serve the Heir and to defraud the King which was one of the principal reasons for the making the Statute 27 of H. 8. for the transferring of uses into possession Vses being but a kind of abeyance and shift to kéep the profits to the use and defraud the King and Lords of their Escheats and them that had a right to know against whom to bring their Actions Littleton was confounded in himself when he made an abeyance of totum statum suum and yet made an Estate for life which is condemned in Walsinghams Case by the Iudges Again though fictions take place amongst common person the King is not bound by fictions and therefore the King is not bound by his remainders by recompence feigned upon a common recovery warrant collateral binds not the King but warranty with real and actual Assets nor the King is not bound by Estoppels of his own recitall certa scientia as it is in Altenwoods Case And I hold plainly that as the Land in possession is distinctly and literally given to the King so the right is as literally directly and plainly given to the King by discharge of that ancient right whereof formerly it was bound for when the Statute saith that the King should have the Lands saving the right of all persons other than the Offenders and their Heirs and such as claim to their use it is plain that the eye of the Statute was not
found for the Plaintiff and Finch Recorder moved in arrest of Iudgement first for that they assigne the wast in a Park where the wast is in Land c. Secondly Because that that Action did not lye for them both alike for if the Grandfather and he in the remainder in tayle had joyned in a Lease yet they could not joyne in wast The Books are If Tenant for life and he in the remainder joyn in a Lease they may also joyn with wast 21 H. 8 14. Although 19 H. 7. be put otherwise And 2 H. 5. Sir William Langfords Case Two joynt Tenants to the Heirs of one of them and they make a Lease for life And it was adjudged that they might joyn in wast for the Tenant for life had a reversion for life and had not made any Forfeiture If the Grandfather and he in remainder had joyned in a Lease and afterwards in wast it had been naught for the lease came out of the first root And it was resolved Tr. 2 Jac. Kings Bench Poole and Browses Case That one in remainder cannot have wast where there is an intermediate Estate for life Yelverton and Hutton did not believe the Case of 2 Jac. Crook If there be Tenant for life with such a power c. of Lands held in capite he may make Leases for life without Licence of Alienation and well proves this cause Yelverton and Hutton For the wast being assigned in a Park it is good for a Park is Land Sed adjournatur Hodges against Franklin TRover and Conversion is brought by Hodges against Franklin The Defendant pleads sale of the Goods in Marlborough which is a Market overt and the Bar was well pleaded and an Exception was taken For that that it is not said that Toll was payed It was said by Hutton That there are divers places where no Toll is to be paid upon sale in Market And yet the property is changed and Iudgement accordingly Grimston against an Inn-keeper IN an Action upon the Case it was said at the Bar and not gain-sayed That they ought to say in the Declaration Trasiens hospitavit for if he board or sojourn for a certain space in an Inne and his Goods are stollen the Action upon that is not maintainable And for omission although the Verdict was given for the Plaintiff Iudgement was given Quod nihil capiat per billam upon fault of the Declaration and he paid no Costs Wilkins against Thomas IT was said by the whole Court That a consideration is not traversable upon an Assumpsit but they ought to plead the generall issue and the Consideration ought to be given in Evidence Ireland against Higgins IReland brought an Action upon the Case against Higgins for a Greyhound and counts that he was possessed ut de bonis suis propriis and by Trover came to the Defendant and in consideration thereof promised to re-deliver him It seemed to Yelverton that the Action would not lye and the force of his Argument was that a Grey-hound was de fera natura in which there is no property sed ratione fundi live Deer and Coneys and vouchd 3 H. 6. 56. 18 E. 4. 24. 10 H. 7. 19. for a Hawk for Hares are but for pleasure but Hawks are Merchandable This difference in 12 H. 8. is allowed so long as a Dogge is in the possession of a man an Action of Trespasse lyes detinue or replevin But no Action if he was out of his possession and so had not a property then there is no consideration which is the foundation of an Action Hutton to the contrary and said the whole argument consisted upon false grounds as that a Dogge is ferae naturae Which if it were so he agreed the difference in 12 H. 8. But he intended that a Dogge is not ferae naturae for at first all Beasts were ferae naturae but now by the industry of man they are corrected and their savagenesse abated and they are now domesticae and familiar with a man as Horses and a tame Deer if it be taken an Action lyes Rogers of Norwich recovered Damages pro molosso suo interfecto And 12 H. 8. So of a Hound called a Blood-hound And a Dogge is for profit as well as for pleasure For a Dogge preserves the substance of a man in killing the Vermine as Foxes And now is not an Horse for the pleasure of a man for a man may goe on foot if he will and an Horse is meat for a man no more than a Dogge Therefore an Action may lye for the one as for the other And for a Hawk he ought to shew that it was reclaimed for they are intended ferae naturae One justifies in 24 Eliz 30. for a Battery because he would have taken away his Dogge from him A Repleavin was brought for a Ferret and Nets and a Ferret is more ferae nat than a Dogge Seale brought 25 Eliz. Trespass for taking away his Blood-hound and there it was said to be well laid And then now if he has a property the consideration is good enough to ground an Assumpsit It is adjudged that a feme dowable The heir promises to endow her before such a day and the Action is maintainable upon that by the Court Intraturudic pro quer if no other matter were shewed by such a day Jenkins Case HE brought an Action upon a promise to the Plaintiff That if he marryed her with the assent of her Father she would give him 20. l. Adjudged a good consideration by the Court. 3 Car. rot 414 Sir Edward Peito against Pemberton SIr Edward Peito is Plaintiff against Pemberton in a Replevin and the Defendant was known as Bayliff to H. Peito and said that H. Peito the Grandfather had granted a Rent for life to H. Peito the Son to commence after his death The Plaintiff confesses the grant but sayes that after the death of Peito the Grandfather these Lands out of which the Rent issued descended to Peito the father who made a Lease for a thousand years to the Grantee and dyes The Avowant confesses the Lease but sayes that before the last day of payment he surrendred to the Plaintiff Vpon which there was a Demurer and the question was whether the surrender of the Lease would revive the rent Harvey If he had assigned the Lease to a stranger the rent had been suspended 5 H. 5. One grants a rent charge who had a reversion upon a Lease for life to commence immediately there the question was when the Lease was surrendred whether the rent now became in esse because that the Lease which privileged the Land from distresse is now determined in the hands of the Grantor himself Crook If the Grantor had granted reversion to a stranger and the surrender had been to him It was clear that the suspension had been for the term Hutton If a man seised of a rent in Fee takes a Lease of Lands out of which c. for years and dyes the
only upon the Land in possession but also the rights to the same the one in point of Giving The other in point of renouncing The Land in possession could be but in one that is in the Offenders and so it was given but the rights to the same Lands might be in sundry persons in the Offendor or in his Heirs or in Strangers Now when the Statute saith the King shall have the Land without saving the Rights of the Offendors or his Heirs or any claiming to their use Tenant in tayl discontinues and after disseiseth his Discontinuee and is attainted of Treason he forfeits his Estate gained by the Disseisin and also his right of Entayl for he cannot take benefit of his ancient Right against the King by force of the Statute of 26 H. 8. and 32 of H. 8. and this agrees with the reason and the rule in the Marquess of Winchesters Case for if the Traytor have right to a Strangers land that shall not be given to the King for the quiet of the Stranger being Possessor for the quiet of his possesion but such right shall be given to the King being Possessor for the quiet of his possession and the word Hereditament in the Statute 26 H. 8. are both sufficient and fit to carry such right in such Cases and no man will dispute but they are sufficient to save naked rights to the Lands of strangers therfore it is not for the count of words but because it is alleged it was not meant so it was said in Digbies Case and so hath Antiquity expounded it for the good of the Subject against the King and against the letter of the Law But can any man imagine that the Parliament that gave the Land to the King should leave a right in the Traytor in the same Land to defeaf him again of it since the Statute gives the right and the Land and this gives a forfeiture of all rights belonging to the Person attainted of Treason and their Heirs for the benefit of the Kings forfeiture is of so great importance that if it be not taken as large as I take it it is an avoiding of all the Statute even that 33 H. 8. cap. 20. for though they have the word Rights in both Statutes even that of 33. doth not include the right of Action to the Lands of Estrangers by an Equity against the Letter So for this time the Case was abruptly broken off by reason the King had sent for all the Iudges of every Bench. Springall against Tuttersbury IN Springall and Tuttersburies Case It was agreed by the Court If a verdict be given at a nisi prius and the Plaintiff or Defendant die after the beginning of the Term yet Iudgement shall be entred for that relates to the first day of the term Overalls Case ONe Overall was sued in London and for that that he was of the Common Bench a Writ of Privilege issued which is a Supersedeas and staid the Sute wholly and not removed the Cause And if the Plaintiff had cause of Action he ought to sue here And then by the course of the Court a Clark shall not put in bayl Foxes Case THe Lord Keeper in the Star-chamber cited one and Butchers Case to be adjudged 38 Eliz. An Vnder-Sheriff makes his Deputy for all matters except Executions and restrained him from medling with them And it was adjudged a void Exception So if it be agreed and covenanted between them that the Deputy should not meddle with matters of such a value It is a void Covenant And that was agreed by Richardson to be good Law Hil. 5 Car. Com. Banc. Overalls Case IT was agreed at another day in Overalls case by all the Clarks and Prothonotaries of the Court that the Course always was that if an Atturney or Clark be sued here by bill of Privilege he needs not put in bail But if he be sued by original and taken by a Capias as he may be if the Plaintiff wil Then he ought to put in bail quod nota MEmorandum that on Sunday morning in the next term ensuing which was the 24. day of Ianuary Sir Henry Yelverton puisne Iudge of the Common Bench dyed who before had been Attourney general to King Iames and afterwards incurring the displeasure of the King was displaced and censured in the Star-chamber and then he became afterwards a practicer again at the bar from whence he was advanced by King Charls to be a Iudge He was a man of profound knowledge and eloquence and for his life of great integrity and piety and his death was universally bewailed Termino Hill 5 Car. Com. Banc. Honora Cason against the Executor of her Husband HOnora Cason sues Edward Cason Executor of her Husband and declares by bill original in nature of debt pro rationabili parte bonorum in the Court of Mayor and Aldermen of London and alleges the custom of London to be That when the Citizens and Fréemen of London die their goods and chattels above the debts and necessary funeral expences ought to be divided into three parts and that the wife of the testator ought to have the one part and the Executors the second part to discharge Legacies and dispose at their discretion And the children of the Testator male or female which were not sufficiently provided for in the life of the Father to have notwithstanding the Legacies in the will the third part And the custom is that the Plaintiff in this action ought to bring into the Court an inventory and sue before the Mayor and Aldermen And that she had here brought an Inventory which amounted to 18000 l. so that her third part was 6000 l and demanded it of the Executor who unjustly detained c. And it was removed to the Common bench by writ of Privilege And now Hitcham Serjeant moved for a procedendo And the Court séemed to be of the opinion to grant it Because that the custom is that the sute ought to be before the Mayor and Aldermen and then if they retain the action here the custom would be overthrown But they agreed that a rationabile parte bonorum may be remanded here and that they may proceed upon it in this Court And that there be divers presidents to this purpose And they agreed that a rationabile parte bonorum is the original writ by the Common Law and not grounded upon the Statute of Magna Charta But that it does not lie but where such a custom is which custom they ought to extend to all the Province of York beyond Trent Richardson chief Iustice said that in the principal case The Plaintiff in London might have declared without alleging the custom As it is in 2 H. 4. Because that the custom is well known But otherwise Where custom ought to be shewed and where not where an action is upon the custom in a place where the custom does not extend There it ought to be shewn And afterwards at another
that latitude c. is waste and for that a forfeiture 22 H. 6. Waste 46. There it is agréed that if Land be digged to make a Bank and if more be digged than is necessary that is waste if it be not cast down again for the Land might be made barren 41 E. 3. Waste 82. There it is not waste for the Land is better than it was before But it is not better if it be arable Land for the Trees and Bushes shadow the Sun from the Land Dyer 361. And if none had been folded there yet it should not have been waste Fodder in Meadow is waste but there it was found by the special verdict that the Land was imbetterd If Lessee for years does so it is a forfeiture 2 H. 6. 17. There it is said that permitting the Land to lye fresh is waste But thorny is no waste for the Less may grub the Thorns up and it shall be better Land wherefore he prayed Iudgement for the Plaintiff But Sergeant Henden argued for the Defendant and conceived that in the whole cause pleaded there is not any thing in it which makes a forfeiture There are two things in it to make that inclosure and waste And first That an Inclosure without Licence is not a forfeiture First every Act that makes a forfeiture of a Copyhold ought to be a dis-inheritance to the Lord c. Secondly a voluntary Act against the Custome c. Thirdly in this Case there is not any Custome found which makes a Forfeiture And for that any Condition in Law is excluded A Copiholder is in tenens secundum consuetudinem manerii and therefore an Act that makes a forfeiture ought to be against Custome and a dis-inheritance to the Lord of his Copihold and not of a Collateral thing As a Trespass upon the Demesus of the Lord is not a forfeiture 21 H. 7. Kell 77. 9 Rep. 76. Combes Case there has the same rule The Custome fixes his Estate so long as the Tenent does the services and observes the Customes Hill 16 Iac. Com. Banc. rot 335. Brettyes Case Two Copiholders are and one release to the other is no forfeiture Dyer 221. One part of the Services there was to make Presentments and if he refuse it is a Forfeiture If a Copyholder fell Trees it is no Forfeiture because it may be for the reparation of Houses But an Act afterwards as selling them may cause a Forfeiture 9 H. 4. Waste 39. A Copy-hold is not forfeited by Outlawry in a personal Action for the Lord is not prejudiced by that And yet the King shall have the profits by which the Lord is estranged from the Tenement 5 H. 5. 2. New Book of Entries 228. Hill 4 Iac. rot 172. Com. Banc. in the end of the Case resolution is to this purpose If Copyholder be summoned to the Court by common Proclamation or express notice and he does not appear it is no Forfeiture Because it is but a failer of Services and no deniall And for that neglect he may be punisht and fined Secondly it was resolved that non-payment of the rent although it be a failer of Services or if he had said he could not now pay if is not a Forfeiture But to forge new Customes is a Forfeiture for that tends to the dis-inheriting of the Lord Dyer 228. The Case of pay ment of a Fine which admits the diversity appears Cook lib 1. 4 28. Now this inclosure is not a Dis-inheritance or a voluntary Act to estrange him from his Lord. And then the Custome ought to make that a Forfeiture which is not so found And it was a rule in P. 19 Iac. That a bare Inclosure is not a Forfeiture of a Copyhold And then it is found that he shall not inclose without Licence But it is not found that if he should inclose without Licence it should be a forfeiture And there is neither express nor tacite condition that it should be a Forfeiture And then it is found that he may amerce and command that the Hedge should be pulled down upon pain c. The intention is not that he had two remedies And it is not to be found in our Books that one Act causes a pain and a forfeiture also And so the custom shall be taken favourably for the Copy-holder and strictly for the Lord for a forfeiture is odious in Law 4. Rep. 9. There the Custom is found that not appearing at four Summons is expresly a forfeiture And to the objection that is made that he had not any remedy for his Fine the Verdict answers that that he may put a pain upon him Secondly he encloses and leaves three gaps It was objected that an Enclosure was a disseisin ergo a forfeiture In some Cases that Enclosures shall be disseisins there is no question But there is if they be Enclosures with gaps The Enclosure that deprives him of all his remedy is a disseisin in Rent but otherwise not For Littleton says if he enclose that he cannot distrein I conceive this diversity If a Copy-holder makes a disseisin of any thing appertaining to the Copy-hold it is a forfeiture for then he doth an act that estranges the Lord from his Tenant but if the Lord had any profit accrewing out of the Copy-hold and he disseiseth him of that Whether you will make that a forfeiture As if the Lord had herbage out of the Copy-hold a disseisin of that is not a forfeiture unless it be particularly by Copy of the Grant The making of the Ditch is objected to be waste and therefore a forfeiture I agree if it be waste it is a forfeiture It is not a forfeiture if a Copy-holder dig a Marle-pit and Marles his Land for the Land is imbettered by it It is objected that it is a forfeiture at Common Law 22 H. 6. 41 E. 3. waste 821. If Lessee for years plough a Meadow it is not Waste for it tends to a matter of Husbandry Natura Brev. title waste Dyer 361. pl. 12. Lessee for years converts Land to Hop ground It was the opinion of Popham Lord Chief Iustice 30. Eliz. that it was not waste And for that that the Land by this Enclosure is imbettered it is not waste and the Lord had no prejudice because the gaps were left And the Court said that it is to be presumed that all the Land was imbettered by this Enclosure if it be not expresly shewed to the contrary Sed adjournatur c. Ralph Marshes Case again ATthome said that the consideration also is good and there is a double consideration of the Premises For she promised to pay that debt part at Mich c. So there was a day given or it was due presently And that is the consideration Crook said that it is no consideration For it is not expressed that he shewed the account But that they surveyed it which is not but an implication that he shewed it And he said that he intended to sue him and then he in
tender a Rent seck upon the Land The Grantee cannot demand it upon the Land in the absence of the tenant that it ought to be to the person upon the land For what can the tenant do more than he hath done already And the Statute of Westminster 2. cap. 9. gives ease to the Tenant When the Lord distreins immoderately and unnecessarily For an immoderate distress may be the ruine of a tenant And therefore the Statute says Nec habeat Capitalis dominus potestatem distringendi tenentes in dominico suo dum praedict Tenens offerat ei servitia debita consueta 30. Ass Fitzher N. B. 69. G. If Cattel be distreined damage feasant and tender of sufficient amends is made The Distreiner is liable to damages for the detinue although not for the distress And to the same purpose is Cook lib. 8. 140. Carpenters Case 5. rep 76. Pilkintons Case c. The second question is whether a Bayliff without command of the Lessor when he had refused to take the Rent upon a Lawfull tender may distrein And it seemed that he cannot And the second resolution in Pilkintons Case came to that question That a tender of amends to a Bayliff amounts to nothing And the question upon a Herriot is Whether the Lessor may distrein without declaring his election and it seemed that he cannot For that is no Heriot which may be seized As the Case in one Woodland and Mantles Case there it is certain And because the Law vests it in him immediatly after the death of the tenant But so it is arbitrable and cannot vest before Election and also the Tenant does not know which he ought to provide before and declares his election And it was demanded for that it is not reasonable that he shall be lyable to a distress and cannot by any possibility prevent it 2 Rep. 36. Sir Rowland Howards Case I cannot finde any president where an Avowry is made upon a disjunctive reservation without allegation that he had declared his Election Although that the Lessor in that Case may distrein without declaring his election yet the Bayliff cannot for he cannot justifie as Bayliff for an Arbitrable thing without express command Acceptance of Rent by a Bayliff cannot alter the Tenancy For although that he had power in Law to receive the Rent yet he cannot by Law alter the Tenency by his acceptance without the Lords Command Dyer 222. A Bayliff may demand Rent but cannot enter for non-payment without express command And when he avows he cannot avow any thing which doth not appertain to his office And for that that it is an arbitrable thing which cannot be transferred from the person of the Lessor his Heirs or Assigns that distress is well taken c. If a Writ of Error was brought in this Court and the day of the return is long to delay the party as if it be more than the next Term the Court may award Execution quod nota c. Gammons Case ONe was obliged in the Ecclesiastical Court not to accompany with such a woman unless to Church or a Market overt And afterwards he was summoned to the Ecclesiastical Court to say whether he had broken his Obligation or not And Ayliffe moved for a prohibition which was granted For that that the forfeiture is a temporal thing And it does not become them in the Ecclesiastical Court to draw a man in examination for breaking of Obligations or for offences against Statutes Dame Chichley against Bishop of Ely DAme Dorothy Chichley brought a Quare impedit against the Bishop of Ely and Marmaduke Thomson And declared that Thomas Chichley was seized of the Advowson of the Church of Whiple in Cambridgeshire And presented Marshall and died seized and the Advowson descended to Thomas his son who by Indenture granted it to East and Angel and to their use and the use of the Plaintiff for life And he being seized of the Church it became void c. But Thompson pleads that he is Parson imparsonee ex praesentatione of the King And confessed that he was seized as aforesaid but that he was seized also of other Lands in Capite and dyed and that his son Thomas was and now is within age which is found by Office And so the King by his Letters Patents after avoydance presents Thompson who was instituted and inducted Absque hoc that Thomas Chichley granted by his Indenture to the use of his wife c. And the Plaintiff replies null teil record Vpon which the Defendant demurs Atthowe for the Defendant Although the Plaintiff may have a Writ to the Bishop when his Title is traversed And admit there be no Inquisition Yet the King may present before Office found 20 E. 4. 11. An Advowson being void is not but a Chattel and for that it is vested in the King without any Office And you may see many Cases to that purpose Richardson said If it be not by the Statute 32 H 8. The King may grant Wardship of Land before Office Atthowe Also there is Traverse upon Traverse which should not be Hendon argued for the Plaintiff And he says he is Parsona imparsonata and does not say before the purchase of the Writ For the Incumbent by the Statute of 25 E 3. cap. 7. cannot plead unless he be Incumbent ante diem impetratitrationis brevis unlesse he be Incumbent pendente lite he cannot plead c. Hutton If one be presented instituted and admitted before the Writ and inducted after and before his Pleader He may plead well And it was resolved by the whole Court That the pleading of the Parson was good without the words Ante diem impetrationis brevis And that all the Presidents are according to that But more afterwards c. Alice Readngs Case ALice Reading brought an Action upon the Case against I.S. And de-declared whereas she was a Maiden and had many Suitors the said I. S. said That Alice Reading was with childe and did take Physick to kill the Child Vpon which words divers men refused her And upon not guilty pleaded it was found for the Plaintiff Finch Recorder moved that those words were not actionable For that that it is not said precisely that she took Physick to kill the childe and that the Physick might have such an operation without her desire or purpose and also there is not any Suitor in special named And as it is in Anne Davyes Case 4 Rep. 16. 6. where it ought to be proved precisely to the Iury that such a one was Suitor and refused her But here there was no such proof And he alleged in the Case of Sell which was adjudged Where one declares that he endeavoured to mary a Woman and that she refused him upon slanderous words And it was adjudged against him For that that a Conatus is not sufficient but yet Iudgement was given for the Plaintiff without any reason alleged Cook lib. 4. 16. 6. The Lady Cockins Case The Case of a Recusant
the Civil Law And it was resolved First that the King by his Charter deprives the subject of his Liberty and Priviledge of Tryal As he cannot by his Letters Patents alter the nature of Gavelkinde Land but by prescription he may alter it in particular places As 9 H. 6. 44. In corpus cum causa to the Chancellor of Oxford was certified that the prisoner Pro extensione detentus fuit convictus And an exception was taken for that that he should have been indicted and convicted and it was answered that it was Mos Universitatis And by Hutton Iustice That custom was to be intended to be by prescription But so the Charter is confirmed by Act of Parliament it is as good Secondly that there is a good cause of action in the Chancellors Court. For Wilcocks who is one of the parties is a Scholar and the Charter was only made for the ease of Scholars that their Studies might not be interrupted by Sutes in other Courts But then he ought to be a Scholar resident in the Vniversity at the time of the Sute commenced there And he ought to be only one of the parties And for that if another be joyned with him he shall not have the priviledge or benefit of the Charter as it is 14 H. 4. 21. and by Richardson chief Iustice that is not a priviledge which may be waved for every person may Recusare jura introducta pro se But that it was an exempt Iurisdiction and differs where the priviledge goes to the person As if a Clerk in his Court will sue in another Court or suffer himself to be sued that is a Waver of the Priviledge Thirdly that a Proeedendo shall not be granted for that the Charter is not pleaded for the Iudges give Iudgement of the Record and the cause of their Iudgement ought to appear by pleading of the Record And also a prohibition is granted where by Demurrer or by Pleading and not by verbal surmise there ought to be a discharge And in the case of a prohibition It is not like the Case of 35 H. 6. 24. Where Conusans is one time allowed by Charter shewn and another Record there should be allowed without demand without other shewing But Yelverton Iustice to the contrary That it might be remanded upon pleading of the Charter And he said that there was a difference where the suggestion was upon matter of Fact as prescription c. Where an issue may be taken there it ought to be pleaded in writing which appears fully by the mean of the Court and not by suggestion Fourthly it was resolved that a prohibition may be granted in case where the Court cannot give other remedy for the ease of the Subject who is the party as it was adjudged in the Court of Requests Vpon the custom of London concerning Orphans a prohibition was granted and yet no remedy at Common Law was afterwards to be expected Trin 5. Car. Fawkner against Bellingham FAwkner against Bellingham in a Replevin The Avowry was for that that the Defendant was Lord of a Mannor and of Lands which were Chauntry Lands and held of him by Rent and other Services And after coming to the Crown by the Statute of 10 E. 6. cap. 14. Who granted it then over by Letters Patents c. And now the Lord distreins for Rent and avows that he had not seisin within fourty years And whether seisin was requisite for him who made the Conusans was the sole question in the Argument First for that that it is a new Rent created by the Statute of 1 E. 6. For when that Land is granted to the King by Parliament yet the King hath operation upon it and may dispose of it Secondly that the Land passed from the Priest and others by their assent confirming it And it is a Grant of the Seigniory by the Lord himself unless the saving hinder it But so by the Grant the Rent is extinguished And the saving is so a creation of a new Rent 1. rep 47. Altomeoods Case And there is diversity between a Rent-service viz. where the Tenant grants Land to the King and he grants that over He cannot distrein upon the Patentee for it is distinct from a Rent charge Stamford prerogat 75. Mich. 20. E. 3. 17. And so it is ordered by the Statute de Religione when he enters by Mortmain that he ought to revive the Services Stam. 27. If the King enters upon my Tenant there a Petition of Right lies Dyer 313. 10. rep 47. By the saving in the Statute of Wills c. A primer Seisin is given to the King de novo where he ought to have it before And then being a new Rent no Seisin is requisite Secondly the second reason is for that there is a new remedy and then no matter whether it be old Rent or new Rent Finchden A Rent granted out of White-acre and a distress out of Black-acre the Rent yet remains and there is one thing part of the Rent another of the remedy Because the Rent is only altered in quality Dyer 31. There our Case directly Now the Statute of Limitations is a Statute for the good of the Common wealth to settle inheritances and possessions And it should be expounded liberally Then if a scruple be of the Act it ought to be expounded benignly And so it is of all other Statutes which settle possessions Always shall be expounded favourably for the ease and benefit of the Tenant and Lord. And for that adjudged That a Copy-hold and Leases for years are within that Statute And the Statute of 32 H. 8. 11. rep 71. binds both King and Realm because it is for the publick good Owen against Price before BRamston argued for the Defendant I agree that Lease to be a Lease in remainder and I admit also that that Lease is warranted by the Statute 10 Eliz. For that that he is not punishable of waste And the case admits two questions whether it be a void Lease at Common Law And First In respect of the limitation Secondly there is not any Livery in the Case Wherefore first of all it had been said a Frank Tenement cannot pass from a day to come in case of a Grant 38 H. 6. 34. 8 H 7. Claytons Case 5. rep It had been agreed that a Livery made the first day by himself or by his Attorney should not be good And moreover if by his Attourney after the day if his Grant may be granted the same day it is not good And then I hold that the date of the Grant of Attourney is not material Trin. 43 Eliz. rot 402. Conibar It was resolved in such a Case as that is That the Livery is not good And the reason was that the Livery had not relation to the Deed which was void in Law Bucklers and Binsluns Case The release was made 1 May as this and executed by Attourney and by Attourney authorised the same day the second of May. And it was adjudged
Executor shall have the Land and yet the heir cannot have the rent Harvey In this Court it was the case of one Asham who had a purpose to enclose a Common and one Tenant was refractory wherefore Asham made him a Lease of the soil in which he had Common and afterwards he surrenders it again And it was agreed that the Common was suspended during the term Crook A Lease for years is by the contract of both parties and the surrender may revive the rent but by the surrender the arrearages shall not be revived And suppose that the surrender was by Indenture and a recitall of the grant that is a grant and then it is expresse that by the surrender their intent was that the rent should be revived 3 H. 6. A surrender determines the interest of all parties but of a stranger But it is determined to themselves to all intents and purposes Crook It was one Cooks Case against Bullick intrat 45 Eliz. rot 845. Com. ban It was there adjudged and this diversity was taken If one devise Lands in Fee and after makes a Lease for years of the same Lands to the Devisee to commence after his death it is a countermand of his will if the Lease was to commence presently it is no countermand and the reason is In the first case both cannot stand in Fee the Devise and the Lease But when the Lease commences immediately he may outlive the Lease And this Case is put upon the intents of the parties But Henden This Case is also adjudged If two Tenants in Common are and one grants a Rent charge the Beasts of the other are not distreinable But if a Tenant in Common takes a Lease for years of another his Cattel are discharged again But Yelverton and Hutton doubted that Case and so it was adjourned to be argued c. Thomsons Case THompson libells for delapidations against the Executors of his predecessor and Henden moved for a Prohibition for that that Thompson is not incumbent for his presentment was by the King ratione minoritatis of one Chichley and the King had not any such Title to present for where the King mistakes his Title his Presentment is voyd and he is no Incumbent 6 Rep. 26. Greens Case And Sir Thomas Gawdys Case where the King presented jure praerogat when he had another Title and the present Action was adjudged voyd and whether he is incumbent or not that shall be tryed But by the Court a Prohibition was denyed because that he was now incumbent And the Iudges would not take notice of the ill Presentment of the King But in case of Symony the Statute makes the Church voyd and then the Iudges may take notice of that and grant a Prohibition if the Parson sues for Tythes But if a quare impedit be brought and appears that the King had not cause of Presentment then a Prohibition may be granted which also was granted by all the other Iustices Richard Youngs Case RIchard Young was Demandant in a Formedon and admitted by Prochein amy and the Warrant was allowed by a Iudge and it was certified and entred in Gulstons Office in the Roll of Remembrance but it was not entred in the Roll as the course in the Common Bench is and after Iudgement is given for the Plaintiff And for that Formeden the Defendant brought a Writ of Errour and removed the Record and assigned it for Errour And before in nullo est erratum pleaded And Davenport moved that it might be mended for he said that there was a difference between that Court and the Kings Bench as it is in the 4 Rep. 43. Rawlins Case for the Entry of the Roll was Richard Young came et obtulit se per atturnat suum where it should have been proximum amicum And the Entry in the Remembrance Roll was That he was admitted per Gardianum Richardson said that all the Books are That an infant ought to sue by Prochein amy and defend by his Guardian and so is a Demandant But the Court agreed That that should be amended according to the Certificate As a speciall Verdict should be amended according to the Notes given to the Clerk And Davenport said that he would venture it although it was by Guardian for he held it all one if it were by Guardian or by Prochein Amy. See afterwards more of this The Vicar of Cheshams Case THe Earl of Devonshire had a Mannor in the Parish of Chesham in Buckinghamshire which extended to Latmos where there is a Chapell of Ease and the Vicar of Chesham Libells for Tithes against one of the Tenants of the Mannor And Henden moved for a Prohibition for that that the Earl prescribed that he and all his Tenants should be acquitted of all the Tythes of Land within Latmos paying 10. s. per. ann to the Chaplin of Latmos And he said that such a Prescription is good as it was adjudged in Bowles Case And a Prohibition was granted Wildshieres Case IT was agreed by the whole Court That for Executing of a Capias utlagatum or for a Warrant to Execute it or for a return of it no Fee is due to the Sheriff c. It was afterwards agreed upon an Habeas corpus sued by Wiltshiere who was imprisoned being under-Sheriff by the Lord Chamberlain for arresting Sir George Hastings Servant to the King upon a Cap. utlagat That he may well doe it upon the Servant of the King for it is the Sute of the King himself and he is sworn to serve it and there is no cause of the Commitment returned but only a recitall of the Commitment unless he was released by the Lord. And the Iudges took exception to that and said that it ought to be unless he can be released by the Law and said if no cause be returned they ought to dismisse the Prisoner And they ordered the Keeper to inform the Lord Chamberleiâ— and that their Opinion was and so was the Opinion of all the Iudges of England That he who procured the Commitment of the under Sheriff ought to pay all the Charges and Expences Quod nota Wentworth against Abraham THe Lord Wentworth brought an Action upon the Case against Abraham upon an Assumpsit and declares that the Defendant 1 die Maii Anno Dom. 1625. in consideration that the Plaintiff would permit the Defendant to re-enter in a Messuage and Croft in which the Defendant had dwelt before promised that he would pay to him 30. s. yearly during the time that he should enjoy it And that he permisit ipsum reentrare and that he should enjoy it a year and an half which ended at Michaelmas 1626. And for that he would not pay 45. s. he c. And upon non Assumpsit pleaded it was found for the Plaintiff And it was moved by Davenport in Arrest of Iudgement for that that the Assize is to pay 30. s. Annuatim then before the Action be determined nothing is due and the Plaintiff cannot divide the
Rent 5 R. 2. Annuity 21. Debitum Judex non leperat Then when it does not appear that the Action lyes for the 15. s. for the half year and the Iury assessed Damages intirely it is voyd as 10 Rep. 130. Osborns Case And it appears that by his computation of time it is not a year and an half from the time of the Assumpsit made Richardson said That it is not secundum ratum for then he might divide the Rent and no day is limited for the payment of it for if a Lease be made for two years or at will paying annually at Michaelmas 30. s. and the Lease is determined after half of the year although that it be by the Lessee himself he cannot make any Rent But Yelverton said that that is not a Rent but a collaterall sum And debt does not lye for that And in the Declaration it is said Quod permisit ipsum reentrare and does not say what time which was nought by all but Hutton And it ought to be also that he did de facto re-enter Hutton said There being it is said So long as you shall occupy the Land you shall pay annually c. That he may demand half of the year But the whole Court against him and so Pro hoc tempore judgement was stayed Grange and his Wife against Dixon A Lease was made by Baron and Feme and another Feme and the Lessee Covenants by the same Indenture to find sufficient mans meat and horse meat to the Baron and Feme and to the other Feme or to their Servants at their coming to London at his house in Southwark The Baron and Feme dye and the other Feme takes an husband The Opinion of the Iustices was that he was not bound to find sustenance for the husband but only for the wife or for her servants and not for both at one and the same time because the Covenant was in the disjunctive But it was doubted if he shall find them Victualls for one meal only at their coming or for all the time of their staying there Johnson against Williams and Uxor IT wad said If an Obligation be made by a Feme sole and afterwards she takes an husband and an Action of debt be brought upon that Obligation against the Baron and Feme and they deny the Deed the Baron shall be taken for the Fine as well as the wife for the wife had nothing whereof to pay the Fine And so in Trespasse against Baron and Feme dum sola fuit and they are both found guilty both shall be taken for the Fine which the Prothonotaryes agreed Jeakill against Linne IN a Writ of Covenant the Plaintiff counts upon an Indenture of Lease of the Parsonage of Dale by which the Defendant Covenanted to pay him the Rent the which he had not payed And the Defendant said that before any day of payment of the said Rent incurred one A. Ordinary of the same place sequestred the said Parsonage for non payment of the first fruits Iudgement If an Action c. And by the Court that is not a Plea for he does not shew that any Act was done by the Plaintiff himself in his default Nor he does not confesse and avoid the interest of the Lessor as to say that the Lessor was a disseisor and made a Lease to him after that the disseisee re-entred and so he might confesse and avoid the Lease notwithstanding the Deed indented But he cannot say that the Lessor had nothing at the time of the Lease made And if the Defendant had been bound in an Obligation for the payment of the said Rent in debt brought upon that that should not have been a Plea for he had bound himself to pay the said Rent And the occupation is not materiall where the Lease is for years or for life But otherwise of a Lease at will Davies against Fortescue IF a man it was said be seised of a Mannor whereof there are divers Copy-holders admittable for life or for years and he Leases the Mannor to another for term of life the Lessor may make a Demise by Copy in reversion to commence after the death of the first Copy-holders and that is good enough But the custome of some Mannors is to the contrary and that is allowed Doyly an Infants Case A Man seised of Lands makes a Feoffment in Fee by Deed indented rendring a Rent with a clause of Distresse and afterwards he is bound in a Statute and the day is incurred Vpon which an Execution is awarded to the Conusee and upon the Extent the Sheriff returns that the party was dead and that he had extended the said Rent And the heir of the Conusor being within age because the Rent was extended during his nonage brought an Audita querela and Hutton said That it is maintainable enough because there is an Exception in the Writ of Extent That if Land be descended to any Infant that the Sheriff shall surcease to extend And although that Writ issued against the party himself who made the Conisance yet when it appears by the return of the Sheriff that he is dead the Infant shall be aided by an Audita querela or otherwise the Extent shall be void which is made upon the possession of the Infant Jeffryes Case IN a Formedon the Plaintiff counts of a gift to his Father and to his heirs of his body ingendred during the life of I. S. and makes the descent to him during the life of I. S. And Yelverton seemed that the Writ is good enough for a Tayle may be made so determinable as well as a Fee simple And if a man Warrant Lands to the Feoffee and his heirs against him and his heirs during the life of I. S. That he had a Fee simple in the Warranty determinable upon the life of I. S. So here Warberlyes Case IN a Writ De valore maritagii it was moved by Henden If the Lord shall recover his Damages according to the value of the Land held of him only or according to all his Lands held also of others And Hutton and Crook said that the value of the Marriage shall be accounted as well in respect of the lands held of him as of other lands held of other Lords by Posteriority or in Soccage for there the woman by the Marriage to him shall be more advanced And the better the advancement is the better is the Marriage of the heir and the person more to be esteemed Norbery against Watkins ONe Devises the Mannor of S. to two and their heirs betwéen them to be equally divided so that they shall have part and portion alike If by that they have a Ioynt-tenancy or a Tenancy in common was the Question because there was an Act to be done for making the division And if the words had béen equally to be divided by I. S. it had béen clear that they had béen Ioynt-Tenants But Harvey said That upon such a gift made to them if the
one of them dyed before partition yet their heirs should hold severally according to the intent of the Will for otherwise the Surviver should hold place which against the will of the Devisor Northens Case A Man seised of a Mannor having all the Goods of Felons de se within the same Mannor and makes a Lease for years of parcell of the same Mannor to a man and afterwards makes another Lease of the same Lands to commence after the determination surrender or forfeiture of the first Lease The first Lessée was a Felo de se the Lord Lessor of the Mannor enters into the lands Leased as forfeit and the second Lessée ousts him and it séemed to Crook that the Entry was lawfull enough Harvey said That the Lessor to whom the Frank-Tenement belonged entring into the land the Frank-Tenement drowned the lesser Estate and the Lease for years is extinct in the Frank-Tenement And it was said That therefore the first Lease extinguisht But if before that the Lord had aliened the Mannor saving to him the liberty and after had entred for the Forfeiture the second Lessée could not enter for it is not any determination of the first Lease Crook said That if the Lessor infeoffed the first Lessée of the Mannor that is a determination of the first Lease and the second Lessée may enter The Bishop of Winchester against Markham THomas Bishop of Winchester brought an Action upon the Statute of West 1 cap. 4. de scandalis magnatum against Markham for that he preferred a slanderous Bill against him before the President of the Councel surmising that he was a covetous and malicious Bishop And the Opinion of the Court was That the words were sufficient to maintain the Action A man seised of a Mannor held in Chivalry devises two parts of it to two men in severalty and all the Remnant he devises to his heirs in Tayle the remainder over in Fée Hutton said It seems to me that the devise is voyd for the third part to the heir for he might devise the two parts by his Testament and he had done all that he could doe by the Statute and then the devise of the third part is out of the warranty of the Statute for it is not reason that by the limitation of the third part the which he could not doe that the devise of the residue which was one time good shall be defeated which Harvey granted but Crook to the contrary for although the two parts were devised by the premisses of the Testament and the third part in the end of it yet in operation of Law the one part is not before the other but the will is intire and took effect in all its parts at one and the same time by the death of the Devisor By which it seemed for the benefit of him in the remainder that he shall take the third part devised to him for if a man seised of three Acres of land held in Chivalry and devises them severally to three severall persons in Fee the heir shall have the third part of every of the three Acres and not the Acre last devised which Hutton granted So also for the benefit of a third person he ought to be judged in the third part as a Purchaser and not of an Estate by descent and so is the better Opinion in 3 H. 6. But if he had devised the Tenements to his Son in Taile without limitation over of the remainder there he might choose to be in of the Estate limited by the Devise or as heir Hutton I doubt of that for the Book is not agreed 3 H. 6. Wilkinsons Case THe Baron seised of lands makes a Feoffment upon condition to enfeoff him and his wife for life the remainder over to a stranger in Fee Atthow demanded if the Feoffee shall be bound to make the Feoffment before request made by the Baron Hutton and Crook thought that a request ought to be made by the husband And because the particular Estate which is the foundation of the remainder limited to the stranger ought to be made to the husband who is party to the condition and it is his will to take the Estate for life or refuse it and the Feme is at his will But if the Baron dyes then it behooves him to make the Feoffment to the wife without request because she is a stranger to the condition by Act in Law And so where she dyes also before the Feoffment the Estate ought to be made to him to whom the remainder is limited without any request Yelverton But if the condition was to re-enfeoffe the Feoffor and a stranger there it behoves the Feoffee to tender the Feoffment to the stranger for he had not notice of the condition and he ought to be party to all the Estate And by the Livery made to him the Feoffor shall take well enough Waterton against Loadman VVaterton makes a Feoffee to the use of Loadman in Fee to the use of another in Tayle the remainder to his right heirs in Fee Cestui que use in Tayle dyes the first Feoffees enter for to recontinue the use Crook said That when Tenant in Tayle in use makes a Feoffment nothing passes but for his own life For it had been agreed where cestui que use pur vie makes a Feoffment in Fee for it was not a Forfeiture of his Estate because nothing passed but for his life then when the Feoffee dyes during the life of cestui que use in Tayle that cannot be any descent of the Fee but as an Estate for life the which determines by the death of cestui que use in Tayle And all the Iustices were of the same Opinion for the descent was when he had not any Title of entry for by the Feoffment he had a Title during the life of cestui que use in Tayle Wherefore during his life they could not enter nor make continuall claim But if the descent had been after the death of cestui que use in Tayl then otherwise it shall be for they had a Title to enter before the descent and by their laches they are told of that Hutton seemed That the Feoffees cannot enter in that case for they cannot have the same Estate that they had before the alienation of cestui que use in Tayl for by the Feoffment the Estate of the Fee simple which was to their right heirs passes clearly and it is lawfully in the Feoffee Wherefore if they enter to re-continue the use in Tayl where they shall he seised of another Estate where they shall be seised of a Fee simple also and so there shall be two Estate of Fee simple of the same land which is inconvenient But the Iustices said That cestui que use in Tayl had no other remedy unless by the Entry of the Feoffees Harris against Marre A Man seised of certain lands in Fee makes a Feoffment in Fee to his use and afterwards makes his will by which he devises That
the Feoffees shall make an Estate of the same lands to all his Sons except H. And if all his Sons dye without issue that then the remainder shall be to an Estranger Hutton said That because H. was not excepted in the last clause that he had an Estate Tayl. The Maior and Commonalty of Winchesters Case THe Bishop of Winchester grants to the Maior and Commonalty of the same City That they might Edifie in the vacant places of the same City and inhabit there And that Grant was confirmed by the Dean and Chapter and the Opinion of Hutton was That notwithstanding that Grant the soil is to the Bishop and by consequence the Houses Quia quioquid plantatur solo cedit solo And that grant does not enure but as a Covenant or Licence and not otherwise One Tomkins Case IT was said by the way That if a man be in Execution for the Debt of another man in the Fleet the King cannot take him into his Protection into his Wars out of Prison untill the Debt be paid because that he is in Execution for the said Debt and the letting him out of Prison is to let him out of the Execution which the Law will not suffer But if he was in Execution in the Fleet or other Prison for the Debt of the King there he may discharge him and take him into his Protection or into his wars for he may well discharge his own Debt Skore and Randalls Case THe Case was thus A Lease was made to Robert Chichester for 99 years to him his Executors Assigns or Administrators if Robert Chichester or John Bellew or James Bellew or any of them shall so long live yielding and paying therefore yearly and every year unto the said Randall his Heirs and Assigns the sum of 40. s. at the four most usuall Feasts and also yielding at or upon the death of Chichester Bellew or Bellew his or their best Beast in the name of an Herriot or 40. s. c. Provided that if Bellew or Bellew dye in the life of Chichester no Herriot to be paid after their deaths A Distress is taken upon Skore the Assign of Chichester for his own Beast Ashly The Question is whether his or their refer to Chichester Bellew or Bellew only or may refer to Executors and Assigns of Chichester the Lessée And so whether the Beasts of the Assignée may be taken for an Herriot And it séemed to him not for that that a Reservation ought to be taken strictly 27 H. 8. Comment 171. 21 H. 8. Dyer 45. So that if the words are words of Reservation or of Declaration which he will favour they shall not be extended further than the words c. Bing contrary And he conceived that the Lessee or his Executors before Assignment ought to pay the Herriot and afterwards the Assignee for he who took the benefit ought to sustein the burthen Sic transit res cum onere and none took the benefit but the Assignee or his Executors And that is so strange an intendment that in the Habend it is not named who shall yield or pay but it is intended he who had the land and that Herriot comes in in the render of the Rent and render does suppose a Prender And it is coupled with the reservation of Rent and it may be granted that the Tenant shall pay the Rent And then it immediately followes And also his or their best c. which then ought to be the Beast of him in possession Secondly The other Exposition should be impossible to be performed for none shall be charged but those that are either privy in contract or Estate and the Executors of Chichester are not privy to any and Bellewes are the persons only named by the limitation of the Estate and not any wayes privy It may be said that the Tenant shall pay the Beast of Chichester and so his Beast But no man may give the Beast of another And if it be said That he may buy him then the Property should be altered and it would be his own Beast Yielding his or their Beast It cannot be intended that Bellew or Bellew might yield but the Lease is granted to him his Executors or Assigns then his or their Lessee or their Executors or Assigns And you cannot have a forraign intendment of Bellew or Bellew Then the Exposition is good that the Herriot ought to goe with the Estate Hutton That Reservation is not of a thing that agrees with the Rent but it is of a collaterall matter and it is of a thing against common right and for that it ought to be taken strictly and to be the Beast of him that dyed for if it had been Yielding the best Beast of a stranger it had been good but thâ—…e is Election of the Herriot or of 40. s. Then by Assignment one part is become impossible for the Assignee cannot pay the Beast of Chichester but the Fourty shillings he may pay And because the Distress may be taken for the 40. s. therefore the Avowry is naught Richardson If Chichester dye Tenant then his Beast shall be paid And his Executors if the interest come to them shall cause that it be paid for Chichester made the Contract and that goes to his Executors but not to the Assigns And for the 40. s. that is demandable against the Executors of Chichester Yelverton The case is doubtfull but I incline that the Avowry is not good for the words in the Reservation of the Heriot are speciall If it had been said And also yielding after his and their death his or their best Beast There it would be the Beast of the Lessee his Executors or Assigns But also he had sever'd it from the Rent and had taken out of the course of the Estate for otherwise it concurred and went with the Rent But also he had made it collaterall for it is to be paid after the death of the stranger For his or their cannot be carried but to the persons named by the limitation And the Proviso explains that that it should not be payed after the death of the Assignee But if it had been rendring the best Beast after the death of the stranger It should be payed by him that had the Inheritance But he held for the 40. s. that the Executors shall not pay it Perryman against Bowden PErryman brought a Replevin against Bowden and Brown who made a Recognisance in the name of Bedle. And the Case was thus A rent is granted payable at Michaelmas and the Annunciation And if it be in arrear by 40 daies after any day of payment upon the demand at such a place he might distrain And it is not shewed that he demanded it And for that a demurrer Atthowe it is not requisite to shew a demand for the distress it self is a demand And it was adjudged in this Court If a Rent be granted and that he may without demand distreyn and good without demand And the words if it be
stollen from him and that was sold in a Scriveners Shop Resolved that there was no change of the property For by intendment if a man had Drapery stollen from him he would not seck it there So if a man fells stollen Plate and sells it in the High street under his Cloak It does not change property And if a man sells a thing in a Silkmans Shop in London the Curtain being drawn That does not change the property And now to the principal Case Although he said that he was a Goldsmith and that that was his Shop It is not necessary to be intended that he used the Trade of a Goldsmith in it And that ought to be averred For every Shop is a Market overt for these Causes only which appertain to the same trade Williams against Bickerton VVIlliams brought an action upon the Case against Bickerton for saying He hath forsworn himself and I le teach him the price of an Oath for I will have his Ears cropt And it séemed that it lay For although it was not said at the beginning where it was that he forswore himself Yet by the circumstance it shews that he was in such a place for which it was punishable And M. 29 30 Eliz. Dantsleys Case Thou art a Pillary Knave remember that thou hast deserved the Pillary and the Action maintainable And the Plaintiff paid the Box for his Iudgement Bradyes against Johnson BRadye brought an Eject firm against Johnson and declared upon a Lease of Land habend a die dat Indentur praedict And does not speak of any Indenture before And for that the Declaration adjudged naught And so it was betwéen Bell and March. And this same term between Spark Where it was shewed quod concessit per eandem Indent Where he had not spoke of any Indenture before Lowen against Cocks IN Debt by Lowen against Cocks the Case was thus A man seised of an house in St. Edmonds Parish in Lumbard-street in London devises it to his wife for life the remainder to his Son George and if he dye without Issue then to Iohn and Thomas his Sons equally and to their Heirs The wife dyes George dyes without Issue l. and T. make a Lease for years rendring 5. l. to the one and 5. l. to the other l. devises the reversion to his wife and dyes and for that Rent the Action was brought by the Wife And the Question was if they shall be Ioynt or Tenants in Common For if joynt the devise of the Reversion is void And Secondly If by any Act which makes partition viz. the several Limitations of the rent to them If séemed to Hutton that they are Tenents in Common By reason of that word equally which in it self makes a Division In 33 Eliz. in Boucher against Marsh It was held that where a man devises Lands to three Children equally to be divided they are Tenents in Common And so it was 14 lac in case of Goods And it is clear as it is said If a Man devise 100 l. to two equally the Executors shall pay 50 l. to the one and 50 l. to the other For if that word equally does not make tenancy in Common it shall be all otherwise void And every word of a Will ought to be of some force And in these Cases the word divided was not the force of the matter but only equally And it was the Case of a Shepheard in the Courts of Wards Where a man devises that after the death of his Son all my woods shall remain equally to his Daughters and their Heirs of their bodies And it was there held by Dyer and Manwood that they were Tenents in Common If Parceners agrée to hold by That is sufficient partition And if the one Ioyntenant confirms to the other that does not give any thing but severs the Ioynture Harvey to the contrary First They are Ioint For Ioynture is the greatest equality for every one is seised by himself and the one hath as much of the profits as the other And so equal interest and equal benefit to the Survivor 6 E. 6. in Dyer A difference was taken between a Demise to two when it is said equally divided That they shall be Tenents in Common If equally to be divided they shall be joynt But it was never adjudged 17 Eliz. A man having 3 Sons devises Lands to them equally to be divided The Question was what estate they had For if the younger had not a fee they could not have an Estate equal with the eldest for he had a fee. Resolved that they shall have a fee-simple and also that they shall be Tenents in Common And held that to be divided and divided was all one And it was held also that the word divided makes the Tenancy in Common and not equally 2. As to that reserve of 50 l. to the one and 50 l. to the other clearly being a joynt Lease and a joynt reversion And the Rent as accessary to the reversion and shall not change the nature of it Yelverton They are Tenents in Common A Will shall be construed according to the intent of the Testator And exposition shall be made of the words to supply his intent Tomlins's Case IT was agreed by all That if one sojourn in the House of another and the House is broken in the night and the Stranger robbed in the House without being put in fear of his life In law He that robbed shall have his Clergy notwithstanding the Burglary For it is out of the Statute of 5 6 of E. 6. cap. 9. Dicksons Case AT Sergeants Inne in Chancery lane this Question was debated If a man steal Goods and the very Owner makes fresh sute to take the felon So that he waives the Goods and flies And before the Owner comes the Goods are seised as Goods waived and af-the Owner comes and challenges them Now if he shall have them or they shall be forfeited was the Question And it was held by Harvey and Crook That they are not at all forfeited for that the Owner had done his endeavour and pursued from village And that the Goods shall not be said to be waived but where it cannot be known to whom the property is Hutton Chief Iustice and Yellerton said That Goods waived shall be said those which are stollen and that the Felon being pursued for danger of apprehension waives and flies Now if they are seised before that the Owner comes the property is presently altered out of the Owner in the Lord although that he made fresh sute If that Sute was not within the view of the Felon allwaies But they all agreed if the Felon do as not flye but is apprehended with the Goods That then the Owner shall have his Goods without Question Or if the Owner comes and challenges the Goods before seisure and after the flight of the Felon Harvey said The Statute of 21 H. 8. cap. 13. does not remedy any thing as to the restitution of the Goods stollen But upon
the evidence of the party or by others by his procurement in the same manner As it was in an appeal upon a fresh sute at the Common-law It was said by all That although the custome was of Burgage lands in soccage Yet if the Lands came by gift or otherwise to tenure in Chief or service of Chivalry That that now changes not the Custome which alwaies goes with the Land and not with the tenure As the Lands in Gavelkind by the Custome are soccage tenure Yet if they are changed to service of Chivalry the Custome is not altered But that all the heirs shall inherit It was agreed by all That if sir persons compass and imagine to levy war against the King And there is an agreement betwéen them that two shall do such an act in such a Country and the other two another act in such a County And so divers acts by divers in several Counties for to assemble the people against the King And after two do the Act according to their purpose and assemble the people and the other do nothing Yet the Act done by two upon the agreement is Treason in all But otherwise it is if there had been only a compassing c. and not any agreement and afterwards one of them does the act unknowing to the others there it is not Treason but in those that doe the fact and not in the others As it happened in the Case betwéen the King and an other Wilkins against Thomas IT was adjudged upon good advise That if an Infant he impleaded by any precipe of his Lands And loses by defending Now he shall have a Writ of Error And because that he was within age at the time of the Iudgement it shall be reversed And the Infant shall be restored to all that he lost As it happened in the Case of John Ware against Anderson and others in the County of York lost while they were infra aetatem Where it appeared that they appeared by their Guardian admitted to them by the Court to the Grand cape and that they were within age But there was an inspection by Nurses and Friends and they were found not to be within age John Symons against Thomas Symons NOte it was said by all the Iustices That if the Disseisee enter upon the Feoffee or Lessee of the Disseisor That he shall not have an Action of the Trespass for the same Trespass against the Feoffee or Lessee Because that they come in by a Title And at Common law before the Statute of Gloc. No dammages for mean occupation against the Feoffee or Lessee Bromleys Case IF a man steal goods and be arraigned upon an Indictment of felony and the goods are valued to 6 s. and the Iury upon their verdict say That he is guilty of the said goods but that the value was but 6 d. That is a good verdict And the Iustices shall vanish him as for patty Larcenny In the same manner it is If a man be arraigned for willfull murther and the Iury find it but Manslaughter That is a good verdict by all the Iustices Pease against Thompson A Man seised of Lands in see makes a feoffment from that day to divers to the use of his Wife for her life and after to the use of the heirs of the body of the Feoffor The Feme dies and the Feoffor makes a Lease for years and dies Now her Issue shall not avoid that Lease because a man cannot have Heirs in his life So that at the time of the death of the Feme there was none to take by the remainder And for that the Feoffor had the fee the Lease is good and shall bind the Heir As if a Lease be made for life the Remainder to the right Heirs of I. S. and I. S. dies in the life of the Lessee then the remainder is good otherwise not but it shall revert But otherwise it shall be peradventure in such a Case in a demise Hillary 3 Car. Com. Banc. Skore against Randall SKore brought Debt against Randall and recovered and had execution by Elegit and it was found by the Inquisition that the Defendant was seised of the moyety of a Messuage and Lands for life and other Lands in right of his Wife And the Sheriff returns that virtute brevis et deliberat feci meditatem omnium praemissorum cum pertinentiis c. Nec non duo pomaria nec non unum clausum vocat c. And that he had delivered the moyety of the Lands in right of his Wife and his Chattells and recites them and that Elegit was filed And the Question was whether he might have a new Elegit Because that the Sheriff ought to have delivered to him the moyety of the moyetic of the Lands held in Ioint-tenancy So that the Tenent by Elegit might be Tenant in Common for a fourth part with the Ioynt tenants as it was agreed But also by that Delivery he had but in effect the eighth part For the other Ioynt-tenants may occupy the Land delivered with him in Common Richardson said For part of the Lands and goods in right of his Wife the return is good And being filed he cannot have a new Election For if part shall be evicted you cannot have a new Extent upon the Estate But if it had been in the Genitive Case Duorum pomorariorum c. it had been good But it was granted by the Court That the Plaintiff makes a surmise that the Sheriff male se gessit in the Execution of that Elegit and then he may have a new Elegit at his peril c. Edward Thomas against John Morgan et al. EDward Thomas brought an Ejectione firmae against Morgan Kemmis and others and upon Not guilty pleaded a speciall Verdict was given to this effect for Morgan and Kemmis for the other some were dead before issue and the other not guilty and they found a Iudgement dated 12 Sept. 23 Eliz. and deliver'd the 15 Iunii next ensuing Which was between the then Bishop of St. Davids of the one part and Richard Thomas of the other part And it was in consideration of a Marriage to be had between him and the Daughter of the Bishop That before the end of Hillary Term next ensuing he would levy a Fine of all those Lands and all the other lands in Mountmouth and that should be to Thomas Morgan and Roger Sise of Lincoln-Inne And that he suffered a recovery with double voucher to the uses in the Indenture But the words are that the Conusees should stand seised to the use And by Atthowe the Recovery is idle for the uses shall be executed and then there shall be no Tenant to the Precipe viz. That of all the Lands mentioned in the Indenture Morgain and Sise shall stand seised to the only uses hereafter c. that is to say They shall be seised of in part of the Lands and Tenements that is so much thereof as shall amount to the clear value of
said Goe not to such a one c. it is actionable without question Slander of one in his Trade will bear an action And so all being connexed alike it ought to be intended that he killed him in respect of his skill In Cases of Defamation Sir George Hasting's Case Thou didst lye in wait to kill me with a Pistoll were actionable So if one touch another in respect of his skill in that that he professes it will maintain an action c. And Yelverton to the same purpose for there is a difference between a Profession and a particular Calling As if words are spoken of one that is a Iustice of Peace he ought to shew that he was then a Iustice of Peace for he is removable and may be changed every Quarter Sessions But as to a Calling the Calling of every man is his Free hold 43 E. 3. Grant of an Annuity to one pro consilio and he professes Divinity Physick and Law there the grant is pro consilio generally for Physick if that be his usuall Profession And it is intended that a man alwayes dyes in his Calling If he said to I. S. Thou art a murtherer it shall not be intended of Hares for the Iudges are not to search so far for construction Loquendum ut vulgus intelligendum et sapiens If one sayes of a Merchant Put not your Son to him for hee 'l starve him to death These words are actionable for that that it comes within the compasse of the disgrace of his Profession And so of a School-master Put not your Son to him for hee 'l come away as very a dunce as he went Harvey If one sayes of a Iudge He is a corrupt Iudge it cannot be meant of his body to be corrupt but it shall be intended of his Profession Peitoes Case before HEnden for the Defendant the Case is thus A Rent is granted for life out of Lands which descend to the Heir and he makes a Lease of parcell of the Land to the Grantee for years who surrenders the term Whether the Rent shall revive or suspend during the term And it was said by him it shall revive First For that that it is the act of him who is lyable to the Rent to accept the surrender And there is a difference where there is a determination barely by the act of the party there it shall not be revived For the first 21 H. 7. 9. Tenant in Tayl of a Rent is infeoffed of Land and he makes a Feoffment of Land with a warranty to B. with Voucher as of land discharged of that Rent And so it is 19 H. 6. 55. Ascue put this Case Grantee of a rent in Fee and Donee in Tayl of Land infeoffs the Grantee who grants that over and afterwards the issue in Tayl recovers in a Formedon yet the rent shall not be revived But if it had been the joynt act of the parties as so by surrender it should have been revived First It is clear that if a Chattell personall be suspended by Sute it shall be gone for ever As if a Feme marries the Obligor 11 H. 7. 25. unless suspension be in anothers right if it be by the act of the party there it shall be revived As if a Feme Executrix marry with the Obligor and he dyes the suspension is determined and they are revived against the Executors 7 H. 6. 2. In one Gascoines Case Lessee surrenders to the Lessor upon condition the rent be suspended but if the Lessor enter for conditions broken the Rent is revived Which in effect is our case A rent is granted to the Daughter and the land descends to her and her other Sister who make partition The Rent is revived for it is the joynt act of both parties Plow 15. If a man had a Rent and disseises the Tenant of the land and after the Disseisee re-enters Where there is a revivor of the land there is a revivor of the Rent for the disseisin was the cause of the suspension and that now is gone Secondly Because that when the Lessee for years surrenders the term is determined to all purposes and the Lessor is in of his Estate is Fee and there is a diversity of surrender in respect of a stranger for to a stranger it may have Essence after surrender But as to himself it is otherwise extinct And he cannot say that it had any Essence 5 H. 5. 12. But in respect of a stranger it ha's continuance as if an Executor surrenders yet it shall be assets And all acts done upon Lessee for ltfe before surrender shall have a continuance after And so he prayed Iudgement for the Avowant But more after Wakeman against Hawkins IT was said That if an Executor was sued in this Court by Originall he shall not put in Bayl. But if he be arrested in an inferiour Court and removed by Habeas corpus he ought to put in Bayl. Stamford and Coopers Case STamford and Coopers Case was thus I. S. acknowledges a Statute to Cooper the 22 January and afterwards he confesses a Iudgement to Stamford the 23 of January next ensuing the Statute And it is extended And Stamford brought a Scire fac against Cooper to wit now because he ought not to have the land by Elegit And the Question was whether the Iudgement by relation shall defeat the Statute And it was resolved That the Iudgement shall have relation to the Essoin day which is the 20 day of Ianuary for that is the first day of the term legally and the fourth day after is the first day of the Term open Dyer 361. Pla. 10. A Release was pleaded after the last continuance and it bore date the 21 of Ianuary which was after the day of Essoin de Octab. Hil. And for that nought because that it came late for it ought to have been after the last continuance and before the last day c. 33 H 6. 45. Nisi prius was taken after the day of the return and before the fourth day after and adjudged nought because that the day of the return which is the Utas is the first day of the term and the fourth day after but a day of Grace and that is the difference If a man be obliged to pay money the first day of the Term he shall not pay it but upon the fourth day after for that is the first day in all common acceptance But in all legall proceedings the first day is the Essoin day And so it was adjudged 16 Eliz. And in the Kings Bench it was in one Williams Case A Iudgement was given the 20 of Ianuary and a Release of all Errours the 21 Ianuary and adjudged that that bars the Iudgement given the 20 Ianuary although it was not entred the fourth day after A Iustice in the Kings Bench examined an Infant upon inspection the Essoin day and found him to be under age and would not permit him to confess a Iudgement although that he would
have come to full age the fourth day after The Court agreed that one may be non-suited the Essoyn day and if he confess an Action that day it shall be good And thereupon Iudgement was given that by the relation the Statute should be avoided c. Crookes Case A Feme sole leases at the will of the Lessor and after the Feme takes an husband If by the taking of the Baron the will of the Feme be determined and it was thought not Fenne against Thomas Hil. 3 Car. Com. Banc. A Man inhabiting in the most remote part of England was arrosted eight times by Latitat and no Declaration is put in Banco Reg. And the Counsell prayed Costs for the Defendant The Prothonotary said that he shall not have Costs unless he come in person But Richardson said on the contrary and he shall have Costs for it appears that he had been put to travell and a day given to shew cause why the Costs shall not be given Spark against Spark SPark brought an Ejectione firmae against Spark for lands in Hawkschurch in the County of Dorset The Case was a Copy was leased for a year except one day and that was found in the Verdict to be warranted by the Custome The sole Question is if an Ejectione firmae lyes And by Hutton If Tenant at will makes a Lease for years an Ejectione firma lyes but if it be a Copy-hold for years an Ejectione firmae will not be maintained Deakins's Case IT was said at the Bar and not gain-sayed If a man perjure himself against two the one by himself cannot have an Action upon the Statute but they ought to joyn for he is not the only party grieved Bentons Case A Man Leases for life and afterwards Leases for years to commence after the death of the Lessee for life rendring Rent the Reversion is granted Tenant for life dyes Lessee for years does not attourn And it seemed That the reversion passes without Attournment And he shall have Debt or shall Avow Williams against Thirkill AN â—…ion of Debt was brought by Williams against Thirkill Executor of I. S. who pleads a Receipt against him of 300. l. over and above which non c. The Plaintiff replies that the receipt was by Covin And so they are at issue and it was found for the Plaintiff and judgement was entred de bonis Testatoris And it was said by the by in this Case That Debt by Paroll may be forgiven or discharged by Paroll Ploughman a Constables Case PLoughman a Constable suffers one who was arrested pro quadam felonia antea fact to Escape And because it is not shewed what Felony it was and when it was done for it may be it was done before the Generall Pardon the party was discharged Hobsons Case VPon an Indictment of Forcible Entry Quod ingress est unum Messuag inde existens liberum Tenement I. S. And because he does not say Adtunc existens and without that it cannot refer to the present time scilicet of the Indictment He was discharged Sir Thomas Holt against Sir Thomas Sandbach SIr Thomas Holt brought Trespass against Sir Thomas Sandbach quare vi armis Because whereas the Plaintiff had used time out of mind c. to have a Water-course by the Land of the Defendant So that the water run through the Land of the Defendant to the Land of the Plaintiff The Defendant he said had vi armis made a certain Bank in his own Land so that the water could not have his direct course as it was wont to have Harvey It séems to me that the Action does not lye For a man cannot have an action of Trespass against me vi armis for doing of a thing in my own Soyl. But Trespass vi armis lyes against a Stranger who comes upon the Land and takes away my Cattell And such like things but not in this Case But he may have an Assise of Nusance As in Case where one makes an House joyning to my House So that it darkens my House by the erection of a new House I may have an Assise of Nusance against him who does it But Crook was on the contrary But it séemed to Richardson that he shall have Trespass on his Case but not vi armis And to that which hath been said That if one build a House to the nusance of another upon his own Land That he to whom the nusance is done may have an Assise of Nusance that is true And also if he will he may pull and beat down such an House so built to his Nusance if he can do if upon his own Land But he cannot come upon the Land of the other where the Nusance is done to beat it down per que c. Hutton of the same opinion By which it was awarded that the Writ shall abate And he put to his Action upon the Case Hitcham moved a Case to the Iustices One I. by Indenture covenants with an other that he should pay him annually during his life 20 l. at the Feast of St. Michael or within 20 daies after 10 l. and at the Feast of our Lady or within 20 daies after 10 l. The Grantée before the 20 daies passe and after the Feast of our Lady dies If the Executors of the Grantee shall have the Rent or not And the Iustices Hutton being absent said That it was a good Case And said that the Executors shall not have it Because it is not at all due untill the 20th day be past Fawkners Case A Lease was made to one for 40 years the Lessee makes his Testament and by that devises it the term to I. S. for term of his life if he shall live untill the said term be expired And if he dies before the years expire then the remainder of the years to F. for term of his life and if he die before the term be expired the remainder of the years to the Churchwardens of S. I. If the remainder to the said Church shall be good or not was the Question Because that the Wardens of the Church are not coporate so that they may take by that Grant Hutton and Harvy said that the Remainder was not good to them And said that the first Remainder was not good Peters against Field A Bill obligatory was shewed to the Court in Debt brought upon it And in the end of the Bill were these words In witnesse whereof I have hereunto set my hand and he had writ his name and put to his Seal also And because no mention was made in the Bill of no Seal to be put to the Bill It was moved to the Iustices If the Bill be good or not And it was agreed by the whole Court that the Bill was good enough Tomlinsons Case A Parson makes a Lease for 21 years The Patron and Ordinary confirm his Estate for 7 years the Parson dies The Question is Whether that confirmation made the Lease good for 21
the Issue Ganfords Case ONe Ganford was bound in an Obligation of 200 l. to Char. Rogers to pay him 100 l. But that was in trust to the use of Mary Watkins during her life and after to George Powell Powell cannot release that bond neither in Law nor Equity during the life of the Wife For then it destroys the use to the Wife As it was agreed But if it was to her benefit solely The Release is good in Equity Woolmerstons Case ONe libells against Woolmerston for the herbage of young Cattel â—…cil for a penny for every one And Hitcham moved for a Prohibition And said that he ought not to have Tithes If they are young Beasts brought up for the Cart or Plough And so it hath been adjudged As if a Parson prescribe to have Tithes for hedgeing stuff he cannot Because that he preserves the Land out of which he had Tithes And then a Parson libells for Tithes of an Orchard for that that it was a young Orchard And the Custome of the place was to pay 4 d. for an Orchard Hitcham said There is not any such difference between old and new Orchards For if the Custome be that he shall pay 4 d. for every Orchard It will reach to the new Orchard And then he libells for a Harth-penny for the Wood burnt in his House Hutton said the Harth-penny c. is more doubtfull For it is a Custome in the North parts to give an Harth-penny for Estovers burnt For which he prescribes to be free of every thing which comes to the Fire And in some parts by the Custome they had pasturage for the Tenth Beast or the tenth part of the Gains which is barrain for the time But he and Yelverton who only were present That no Tithes are due for them without Custome Hitcham they also will have Tithes for a thing before it comes to perfection which would be tithable afterwards But I agrée If he sells them before they come to perfection then the Parson will have tithes But by Hutton and Yelverton There may be a Custom to have every year a penny for them Sed adjournatur c. Viner against Eaton VIner against Eaton Where a Sute was betwéen them in the Spritual Court for striking in the Church which by the second branch of the Statute of 5 E. 6. cap. 4. It is excommunication ipso facto By which he surmised him incidisse in poenam excommunicationis And being granted if c. And Ashley shew'd cause why it should not issue viz. There ought to be a Declaration in the Christian Court of the Excommunication before any may prohibit him the Church Richardson said That their procéedings are not contrary to the Statute But stood with the Statute And it was said by Yelverton It is seen that there ought to be a Declaration in the Spiritual Court But the difference is where it is officium Judicii or ad instantiam partis they will give costs which ought not to be Hutton and Richardson If the party will not follow it none will take notice of it And they proceed to give costs Then a Hrohibition may be granted And if he be a Minister he ought to be suspended for an offence against that Statute And it ought to be first declared and so to excommunication And that cannot be pleaded if it be not under Seal Dyer 275. And after all these were agreed by the Court and no Prohibition was granted Fox against Vaughan and Hall SIr Charles Fox was Plaintiff in a Replevin against Sir George Vaughan and Iacob Hall for taking of his Beasts in Rustock The Defendant was known as Bayliff of Tho. Vaughan at the day quod William Vaughan was seised of the place quo c. And being seised the 9th of Maii 10 Iac. by Indenture granted to Thomas Vaughan a Rent of twenty Nobles per annum out of the place in quo c. to commence after the death of Anne Vaugham for life payable at the Feasts of St. Michael and the Annunciation And if the Rent be in Arrear at any day of payment or fourteen daies after the demand at a place out of the Land scil his Capital Messuage in Orleton Then it should be lawfull for him to distrein And he shews that twenty Marks were in arrear And that 22 Iac. 22 Octob. He demands it at Orleton c. And the Plea in Bar was That the Grantor was not compos mentis at the time Vpon which Issue was taken But it appeared upon the evidence that at the time of the Grant Gaudebat lucido intervallo Whereupon it was found for the Defendant And Sergeant Barkley moved in arrest of Iudgement For that the Demand appears to be after the 14 daies And he took a difference where the Demand ought to be made upon the Land But there it may be demanded at any time And the Distress it self is a Demand As it was adjudged 20 Iac. in Skinners Case But otherwise it ought to be out of the Land Henden objected because the Issue was joyned That cannot be shewed Richardson Although there was Issue joyned Yet it appears that you cannot distreyn without demand if there be not actual demand of the Distress alleged It is illegal And for the matter he cited Maunds Case 7 Rep. 28. And he doubted if such a difference would hold Berkley This difference was taken by me before cited But lecto recordo the Demand is not ex tunc petito But if it be in arrear and required at the Capital Messuage upon which he demanded it does not refer to any place Richardson If there be a nomine poenae then it ought to be demanded strictly at a day And when it is to be demanded upon the Land it may be at any time For that that Littleton sayes That a Tenant is intended alwaies present upon the Land But when the Demand is to be made at an other day it is only to give notice and so it is demandable upon the Land Hutton by that exposition if he does not hit the demand upon the day he shall lose his Rent Richardson He had lost his Distress by that day only but not his Rent For if he demand it after upon the Land he may have an Assise Hutton you would make that partly a Rent-seck and partly a Rent-charge Harvey If the Rent be not gone but that he may have an assise Richardson It is a Rent-charge generally by the clause of the distress And for that he may have an Assise which is a remedy for a Rent-charge as well as a Distress Hutton If you may make it a Rent-seck you have lost the Rent-charge for ever If a Grantee of a Rent-charge or Rent-seck brought an annuity Richardson If he proceed to Declaration he had lost the Rent-charge Et adjournatur Note It was said if one comming upon an Attachment in any Court And the other does not put in Interogatories against him He shall be dimissed with costs and may
up a Chamber but that was the knavery of the Inne-keeper he being then in contention with an Inn-keeper in the Parish and that in divine service he thrust open the door of Wrights seat and said that he and his wife would sit there in disturbance of divine service And for that a prohibition was prayed and granted for the high Commission cannot punish non-residency nor breaking the seat in divine service And the other were things for which he shall be bound to his good behaviour and the complaint ought to be to the Ordinary c. Hall and Blundells Case before DAvenport said This Parson being presented by Simony is disabled to this Church for ever and cannot he presented to this Church again although another avoidance As it was adjudged in the Lord Windsors case But it was said by Richardson if he had said absque hoc that he was in ex praesentatione of Sir George it had béen good Which was granted Henden Two exceptions had béen taken First that the Incumbent does not shew what estate or interest the King had to present him which does not need if the King brought a Quare impedit then it is a good answer to say That he is in of his presenting But if it be brought by a Stranger then he ought to shew the title in his presentment And he alleged the Statute of 25 E. 3. Which inables the Incumbent to plead by writ of the Law 41 Eliz. There was a Quare Impedit brought for the Church of Danel A presentation was pleaded by the King without making a title and it was admitted good And in many cases it is more safe not to make a title Secondly Because that he pleaded a presentation by the King he is disabled As to that he said that before he be convicted of Symony he may be presented But by Crook in Sathers Case That if he be presented before conviction yet it is a void presentment And it was so agréed by the Court and they resolved the plea was naught because he enswers nothing to the Symony for the protestation is not any Answer Wherefore judgement was given for the Plaintiff Denne against Burrough DEnne against Burrough alias Spark in a prohibition it was agréed by Yelverton and Crook the other Iustices being absent If a man makes his will and makes his wife Executrix and devises the residue of his goods after debts and legacies payed to his Executrix His wife dies before probate that now because that the Executor had election to have them and dies before he did so All the Goods belong to the Administrator of the first Testator But otherwise by Henden If there was a Legacy of a particular thing Quaere what difference Newton against Sutton RIchard Newton and Iames Elliot against Sutton in debt upon an Obligation to perform Covenants in an Indenture There was a Covenant that the Defendant ought to do such an act thing or things as the Plaintiff or his Council learned should devise for the better assurance of certain Lands by himself to the Plaintiff and said that a Counsellor advised him to have a Fine And upon the Declaration there was a Demurrer And upon the opening the Case Crook and Yelverton being only present agreed That it ought to have been pleaded that a writ of Covenant was shewn and the tender of the note of the Fine is not sufficient But the breaking of the Covenant ought to be laid after the Dedimus potestatem sued by the Plaintiff And upon their advise the action discontinued without costs Sacheverills Case before ATthowe said that the action lies For a Lease made by Tenant for life is a Lease derived out of all the Estates and not as a Lease made in Remainder But he who made the Lease had a Reversion in possibility of a Reversion and for that he might joyn with him who had the Inheritance in that Action 27 H. 8. Tenant for life and he in Reversion joyn in a Lease for life And Tenant for life the place wasted and he that had the inheritance the treble dammages And in this Case had but a possibility of the Reversion and yet for that possibility they joyn in waste And it is all one whether there is but a possibility of reversion or a reversion If Tenant for life and he in remainder in fee make a Lease for years they joyn in waste and the reversion does not hinder Because that the Lease is derived out of both And the Lessee shall make attendance first to one and then to the other 13 H. 7. 17. And if it be upon such a Lease or Covenant which is not collateral but goes with the Land the Tenant for life shall have the benefit of them during his life and the other after But if one makes a Lease for life rendring a Rent and grants the Reversion to one for life the Remainder to another in fee Where the lease issues out of the whole reversion Yet the division by reversion being by the party himself they shall joyn in an action 22 H. 6. 24 b. Tenant in fee makes a Lease for life and their grants the reversion to A. and B. and the Heirs of B Waste is committed and they joyn in waste And yet this Statute which comes to our Case is made after the Lease And in this case if he who had the Inheritance his Son and the Survivor should joyn in waste For the Law makes the division of the reversion If Baron seised in right of his wife and they joyn in a Lease for years or for life rendring a Rent the wife dies the Husband being intitled to be Tenant by the courtesie it is now his Lease and he shall have the Rent And the Book séems that he and the Heir shall have an Action of Waste For the Law makes that division If Tenant in fée makes a Lease for years and takes a wife and dies and the Feme recovers Dower That Lease is not dispunishable with the devision by the Act of Law and that Lease is derived out of all the Estates and it is all one as if they had all joyned Admitting that the words were that the said Henry had Authority to make Leases for lives And that that makes it as effectual and as good as if all had joyned Then it will be agreed that it is the Lease of all As if I give Authority to make a Lease of my Land It is my Lease and ought to be made in my name and so the Authority is good against all those And if the Covenants had not béen collateral Iacinth shall have benefit of them For although they are not parties to the Lease yet the Law makes them so And as they shall have those benefits which grow by the Reversion so they shall have the waste also It will be objected this Lease by Henry is derived out of the first Fine and the Conusees shall stand seised to that use I agree if it be meerly without
and Yelverton And a prohibition was granted Holmes against Chime before PResidents were shewn that such actions were brought scil Hill 3. Car. Elwin against Atkins and Hill 1. Car. Cophin against Cophin both in this Court. And Richardson said although the book makes a doubt of it yet his opinion was that the action would lie For it would be a miserable thing that all things should be shewed precisely And so Iudgement was given for the Plaintiff Port against Yates IN a replevin the case was The Defendant was known as Bayliff to Thomas Kett and the land was Copyhold land And 10 Maii. 3 Car. When it was granted by the Lord of the Mannor to the wife of Thomas Kett. The Plaintiff confesses that the Land is Copyhold land but that the Lord granted 1 Iacob to Robert Salter in Fée who had two daughters the wife of the Plaintiff and the wife of Thomas Kett and dyed seised and that the land descended to them upon which they demurred Berkely The first grant shews that the Defendant was in of all and the descent to the wife but for the moyety whereupon the grant of the whole is not traversed nor confessed and avoided And he cited Dyer 171. Pl. 8. to be the same case in effect and so ruled But Hutton Harvey and Crooke held what difference there was betwéen this case and the case in question Hutton the descent here which is pleaded makes the second grant void But by Richardson although that it be avoided Yet it is not confessed And afterwards for that that upon the whole truth of the matter disclosed It appears that a Copartener cannot distrein the lands of another damage feasant and the matter of form in pleading ought not to be regarded by the Iudges upon the Statute of 21 Eliz. cap. 5. Iudgement was given for the Plaintiff Cockett against Delayhay COcket brought an action upon the case in Bristow against Delahay for these words Cockett hath forged a deed and because of that came out of his own Country And the Defendant justifies that he did forge a Déed in Middlesex of lands in Hartfordshire without that that he spoke in Bristowe Richardson said that that plea was naught either with traverse or without the Traverse Whereupon Henden altered his plea scil That he forged a déed of those lands at South Mimms in Middlesex where the lands lie By vertue of which he justified the words at Bristowe Richardson It is a good plea for now the other can plead nothing but de injuria sua propria And then the tryal shall be in Middlesex And by Crooke if there be a Demurrer there shall be a writ of inquiry of damages issue to Bristowe Issue IF the issue be not made up it may be tryed by Proviso But if the Plaintiff neglect that there may be called a non-sute upon the roll for there it shall be discontinued quod nota Page against Tayler PAge brought an Action against Tayler as Receiver c. which was found against him c. And Iudgement was given that he accounted and before the Auditors he pleaded that before the Action brought there was an arbirement that he should pay to the Plaintiff 11 l. in satisfaction of all accounts and demands which he had performed And it was ruled by the whole Court that that was not a good plea in discharge before Auditors but a plea in bar of the account And by Crooke an accord with satisfaction may be pleaded in Bar not in discharge Which the Court seemed to agree And by Crooke If the Defendant had any other matter to shew on the Declaration before Auditors it might be shewn c. Richardson Although that the Arbitrament was made after the action brought it cannot now be pleaded but he ought to have his Andita querela Manninghams case In Manninghams case The doubt was this A condition of an obligation made to Manningham was that he should pay after his death to his Executors after his death 10 l. per annum to the use of the Children of Manningham And Manningham dyed and there was no Executor whether the payment should be to the Administrator and so the obligation forfeited Berkly said that it ought to be payed to the Administrator for an Executor includes an Administrator And this money is as assets if not to satisfie debts yet to perform this case which is illsgal 5 H. 7. 12. 26 H. 8. 7. And also if a man limit a thing to be done to his Executors that may be done to his Administrators So that the nominating of the Executor is not but an expresse intention to whom the money shall be paid viz. to him who presents his person And he compares that to the case of 46. E. 3. 18. A rent upon a condition reserved to the Executors goes to the Administrators 15 E. 4. 14. Dy. 309. Cranmers case Where it seemed that if a lease be made to one for life and after to his Executors for years that the Executors shall not have the term as assets 32. E. 3. A quid juris clamat Fitzharb A Lease for life to his Executors for years in remainder Lessee for life atturns saving the term which proves that the Executor had that as privy not as strangers And he cited Chapmans and Daltons case the principall So that the Infant and the Executors shall have the money in right of the testator and therefore it goes to the Administrator Secondly The Executor extends to an administrator 8. rep 135. there kindes of Executors and an Administrator is an Excecutor datinus 3 H. 6. An action is brought against divers executors by the Statute when some appears upon the distresse it answers that extends to an Administrator although the Statute names only Executors Thirdly It does not appear here that Manningham made not Executors for it may be that he made Executors and that they dyed intestate or before probate And he cited 18. H. 8. And Shelleyes case 1. rep and 33. Eliz. If Executors dye before probate It is in Law a dying intestate Richardson Here is but meer trust and as it hath been said It doth not appear whether he had made Executors or not For if he dye and makes Executors and they dye before probate or refuse he dyes ab intestato but not intestate Nor shall it be questioned if the obligation had been to pay to Manningham only or to him and his Executors But it goes to the administrators But because that he had specially put his Executor Whether he ought to have the forfeiture of the obligation or whether he ought to have the sum to be annually payed to the Administrator Berkley the letters of administration make mention that he dyed ab intestaro Atthow That is matter de hors but by the declaration it is clear that he dyed intestate And the action brought by Administrator who who had not any cause of action Secondly admitt that there was an Executor and the money payed to him that
Iurisdiction of this Court it ought not to be received without Oath c. But if in Covenant or debt for money to be paid at another place he pleads payment accordingly or the Covenants performed in the place limited which was out of the Iurisdiction it ought to be received without Oath quod not Double delay BY the course of the Court double delay cannot be allowed as if the Defendant in debt plead that the Plaintiff is a Recusant convicted and had a special imparlance afterwards the Plaintiff conforms The Defendant cannot plead Outlawry in the Plaintiff Iohn Felton's Case MEmorand quod Thursday 29 die Novembr 1628. Iohn Felton was arraigned in the Kings Bench for the murther of George Duke of Buckingham And the Iustices of the Common Bench demanded of the Serjeants of the King who were present in the Kings Bench what was done with Felton And Ashley answered That he had confessed the fact and that the ordinary sentence of death was given against him But they marvelled that for so notorious offence the sentence was not that he should be hanged in chains Yelverton That any other sentence than the ordinary sentence cannot be given But after that he is dead his body was at the disposition of the King which was not denyed by the other Iustices Turner against Hodges TUrner brought Trespasse quare clausum fregit against Hodges The Defendant said that loco in quo c. is Copyhold and that the Lord Dudley is seised of the Mannor of Sedgley and granted the Copyhold in Fee to Roger Turner and he makes a Lease to the Defendant Hodges for a year The Plaintiff replies that there is custom within that Mannor If a Copyholder makes a lease without licence of the Lord for a year and dies within the term it shall be void against the heir And upon the issue of Nul tiel record it was found for the Plaintiff And Atthowe prayed Iudgement and shews that the custom is good and not contrary to reason 4 rep 26. It was resolved that lessee of a Copyhold without licence for a year may maintain an Eject firm for his term is warranted by the Law by force of the general custom of the Realm But that ought to be intended by the custom within every Mannor within the Realm Whatsoever a Copiholder does is by Custom The Case here is that it shall be void by the death of the Lessor which is an Act of God That was that if Copiholder made a Lease for years and afterwards aliens that to be void against the Alienee would be unreasonable 39 Eliz. There was a Case referred to the Iudges out of Chancery which was debated in Sergeants Inne Littleton 59 b. Armesstrong Lord of a Mannor prescribes that a Copiholder upon the change of every Lord should pay a Fine But by all the Iudges it was ruled a void Custom For the Lord might change his Mannor every day But if it had béen That after the death of the Lord he should have a Fine That is a good custom For it is the act of God So in our Case the custom is void against his Heir which is by the act of God In some Cases a custom alters the nature of a Free-hold land 5 Rep. 84. Perrymans Case A Feoffment shall not be good untill it be presented in the Court of the Mannor a good custom If a free-hold estate may be controlled by a custom a multo fortiori a Copi-hold estate Barkley argued on the other side Although it be found for the Plaintiff Yet if the custome be void a void custome is no custome And for that it is said in the Earl of Lecesters case That a void custome cannot be confirmed by Act of Parliament And that is a void custome We ought to consider the nature of a Copyhold Inheritance By the Common law it is but an Estate at will But the Common law so takes notice to establish it by a custome That there may be possessio Fratris of it and he may have Trespass against his Lord. If Tenant at will be out-lawed his Estate is determined But Copyhold is not determined or forfeited by Out-lawry As it was adjudged 44 Eliz. So that the Law takes notice of it as of an other Estate of Inheritance Where an Heir after his death may enter as Heir at Common law and have Trespass because that it descends At Common law he had power to make a Lease for a year For it is not the custome of the Mannor that he may make such a Lease For then it is pleaded If a Copiholder makes a Lease for divers years without alleging a custome or Licence of the Lord he cannot maintain an Ejectione firm against his Lord but perhaps against a Stranger It may be then if it be the very Law if he may make a Lease for one year if this custome be good It will be contrary to the very liberty of the Estate 19 Eliz. Dyer Solomons Case Custom that Tenant in Fee-simple shall not make a Lease for more than 5 years is void So Littleton says That a Condition that the Feoffee should not alien was void And a Condition that Tenant in tayl should not suffer a Common recovery is void Because that it restrains that Liberty which is annexed to the Estate And for the difference between the Father and the Heir in our Case there is not any difference For the Heir is all one with Father and in loco patris For he might have Trespass by discent of a Copihold Sir William Herberts Case And then if the Father shall be bound by the Lease so shall the Heir Richardson said That Iudgement ought to be given for the Plaintiff Copihold as it is created by Custome so in all it is guided by Custome For at the Common law a Copiholder could not make a Lease for a year But because that it is a general custome of all Mannors in England For it is not but a meer Estate at will by the Common law Then this custome is not against the Liberty of the Estate For a Custome inables that the Lease and a Custome ought to destroy it upon a Contingency as here by the death of the Father For that the Lord may know his Tenant And therefore the Case is reasonable and not to be compared to the case of a Freehold in Dyer A Freehold may be restrained by Custom And yet a Freeholder may be restrained by custome As antient demesn which he passes by the delivery of a Turf or a pair of Gloves and it is not convenient for it is at the peril of him who takes the Lease Copyholder makes a Lease for a year But if he dye within the year his Heir within age it shall be void against the Lord. So that the Lord during the nonage shall have the Copihold to hold for his Services is a good Custome And so in our Case Hutton agreed That at the Common law it might be restrained by custome
the principal case Iudgement was given for the Plaintiff Iohn Costrell against Sir George Moor. JOhn Costrell and Ioan his wife brought an action upon the Case against Sir George Moor and declares That whereas the said Iohn and Ioan were seised of a Messuage and lands in right of his wife Ioan A man having land in right of his wife in trust they cannot both joyn in the action but the Husband only and that the said Iohn and Ioan and all their predecessors time out of mind c. had common in such a waste which is the soyle of the Defendant pro omnibus a veriis levantibus cubantibus c. and the Defendant had inclosed 20 acres of the said waste and made a fish pond of it there so that they could not take the profits as before with their cattel Vpon the general issue pleaded it was found for the Plaintiff And Crawley moved in arrest of Iudgement For that the prescription is ill made and that the Husband and wife cannot joyn in this action but the Husband might bring the action only And also where it is said that they cannot take the profits with their Cattel when the wife cannot have Cattel during the Coverture Richardson said the prescription is good and it would have been better if he said all those whose estate the wife had But this tantamounts and is as well in substance for that goes meerly to the estate of the Wife Trin 5 Car. Com. Banc. which was granted But for the second I doubt if the Wife may joyn in this Action If a man be seised in right of his Wife he may have Trespass for Trespass done upon the Land there the Wife shall not joyn for she cannot have the dammages if she survive And there is no difference between this Case and the principal Case It is Trespass on the Case and for the personal and temporary trespass and such for which the Wife should have the Action after the death of the Husband unless that the Defendant continue the Pond c. I agree if Battery be done to the Wife they both shall joyn for the Wife might have had the Action if she survived And so it was resolved in the Cooks of Grays-Inns Case they might joyn For the wrong was done to the Wife But here the Husband only lost the benefit of the Common and the wife could not take it with her Cattel For she had not any Cattel during the coverture And Yelverton also was of the same opinion But Hutton said In a Quare impedit the Husband and Wife shall joyn And yet the avoidance goes to the Executors of the Husband Hitcham In an Ejectione firm or ravishment of Ward the Feme joyns quod concessum fuit Yelverton said that in 4 E. 4. it is express that the Wife shall not joyn in trespass done upon the Land of the Wife for dammages shall be recovered in lieu of profits Moor against Everay MOor and his Wife brought dower against Everay To parcel he pleads non tenure and to the other parcel ne unque seise de dower which goes to the tryal and there the Tenant makes default and upon that a petit cape is awarded and now at a day in bank one Lumbard prays to be received upon the Statute of Gloucester to save his term c. But Henden alleged to the contrary First That Statute is not to this purpose in force by the Common law Tenant for years cannot falsifie 6 Rep. Periams Case Then because it was hard that a recovery should be had by Covin and the Lessee for years without remedy for his term the Statute of Gloucester was made which gives a receipt for the Lessee for years after the Statute 21 H. 8. was made which gives the Lessee power to falsifie The Common experience of the Court is If an habens facias seisinam issue there is not any saving of the term of Lessee for years Hil. 39 Eliz. in Bests Case A receipt was moved and denied For if the Lessee had a good term he might have trespass for entry upon him Littleton though says in his Chapter of Tenant for years that he shall be received Hutton The Statute of Gloucester aids them only who knew and had notice of the Recovery 21 H. 8. aids them who had not notice of it And it is better to prevent mischief than to remedy it after and as to that a final Bar. I was of Counsel in some Cases where the Lessee was received And if the Lease be not good the Lessor may avoid it by Plea scil Traverse or Demurer And I remember the issue taken upon the Term and found against the Termor And it was Mr. Fulhams Case against Sergeant Harris Sed adjournatur Fawkenbridges Case IT was moved he having Iudgement before to have costs where the Court doubted because that it was a special Verdict and the Statute of 23 H. 8. cap. 15. says That where a Verdict is found against the Plaintiff But in a special verdict it is neither found for or against But it may be said that when it is adjudged against the Plaintiff then it is found against him And 4 Iac. cap. 3. which gives costs in an Ejectione firmae had the same words if any verdict c. But it may be answered That as in Demurrer no costs shall be recovered no more in a special verdict For that the Plaintiff had a Prohibition causam litigandi And the Statute may be intended of vexatious Sutes c. But Brownlowe said that he had many times given costs upon the Statute of 4 Iacob For that the Prothonotaries were commanded to search Presidents The University of Cambridge THe Vniversity of Cambridge claimed by their Charter to be Clarks of a Market and that they had power by their Office to make orders and execute them And they made an Order that no Chandler should sell Candles for more than 4 d. ob the pound And because that one R. sold for 5 d. he was imprisoned and a Prohibition granted But it séemed that an Habeas corpus was more proper For he was not presented First For that they could not imprison without course of Law Secondly Because that as Clarks of a Market they have nothing to do with but Victuals and Candles are not Victuals The Sheriff of Surrey against Alderton THe Sheriff of Surrey returns a rescous against one Alderton That whereas there was a Iudgement had against B. and a fieri facias awarded upon that by vertue of his Warrant directed to R. to take the Goods of B. By vertue whereof such a day the said R. diversa bona catalla ipsius did levy and had them in his custody No rescous can be of Goods and one Alderton rescued them from the Bayliff contra voluntat ipsius Rich. The return is naught First For that that it is rescued from the Bayliff Secondly It is of Goods whereof a rescous cannot be returned Yelverton contrary in
all was false and written of set purpose and that for that the Lord displaced him it would be more difficult But for any thing as appears to us there is not any thing for which he might be justly displaced And also it was not said in the Declaration that the Defendant had any fee for his Office And Richardson also said That if it had been found as my Brother Hutton said Yet it is known that it should be more strong But then I conceive that the Action does not lye For it is apparent that nothing in the Letter may be applyed to a particular misbehaviour in his Office And by the Court Although the Declaration be laid falsely and maliciously Yet if the words be nâ—…t scandalous yet it ought to be laid falsely and maliciously And he said that it was adjudged in this Court Where an Action upon the Case was brought for conspiracy to indict a man and upon the Indictment the Iury found Ignoramus There the Indictee was clear And yet for the conspiracy the Action laid which was Blakes Case And it was said by Hutton If I have Land which I intended to sell and one came and says maliciously and on purpose to hinder my sale that he had a Title to it That that is actionable Which Harvey agreed without Question if he does not prove that he had a Title If one says of an Inue Go not to such an House for it is a very cutting House Agreed by the Court not Actionable Mich. 5 Car. Com. Banc. And Iudgment was given quod querens nil cap. per bil Pasc 6 Car. Com. Banc. THis Term there was nothing worthy the reporting as I heard of others For I my self was not well and could not hear any thing certum referre c. Trin. 6 Car. Com. Banc. Tomlins's Case IF the Husband makes a Feoffment to the use of himself for life the Remainder to his Son in tayl By the Court That is a dying seised in the Husband For the Wife shall have dammages in Dower And so it was adjudged in the Lady Egertons Case But the Husband ought to dye seised of an Estate tayl or Fée simple which might descend to his Heir Mich 6 Car. Com. Banc. MEmorandum That Sergeant Atthowe died at his House in Northfolk who was a man somewhat defective in Elocution and Memory but of profound Judgement and Skill in pleading NOte it was was said by Hutton and Davenport That if an Inferiour Court prescribe to hold Pleas of all manner of Pleas except Title to Freehold That that is no good prescription For then it may hold Plea of Murther which cannot be c. Note It was said by Richardson chief Iustice that if two conspire to indict an other of a Rape and he is indicted accordingly If the Iury upon the Indictment find Ignoramus Yet that Conspiracy is not punishable in the Starchamber Father purchases Lands in his Sons name who was an Infant at the age of seaventeen years and he would have suffered a Common recovery as Tenant to the Praecipe But the Court would not suffer him Rawling against Rawling THe Case was thus A man being possessed of a Lease for 85 years devises it as follows viz. I will that R. Rawling shall have the use of my Lease if he shall so long live during his life he paying certain Legacies c. And after his decease I devise the use thereof to Andrew Rawling the residue of the term with the Lease in manner and form as R. Rawling should have it Crew said That after the death of R. Rawling and Andrew the term shall revert to the Executors of the Devisor But by the Court not But it shall go to A. Rawling the last Devisée and in manner and form shall go to pay Legacies And by all a strong Case And together with the Lease be by strong words The Archbishop of Canterbury against Hudson of Grays-Inne THe Archbishop of Canterbury prosecuted against Hudson of Grays-Inne in an Information upon the Statute of E. 1. of Champerty Henden Sergeant for the Plaintiff moved upon the Plea that it was insufficient Because that the Defendant had prayed Iudgement of the Writ when he ought to have pleaded in Bar For the Statute of E. 1. had appointed a special Writ in this Case as the Defendant said But by him the Information is upon the Statute of 32 H. 8. which gives that Action by sute in Chancery which before was only by sute at Common Law Richardson chief Iustice said That the Plea is not to the matter but to the manner for the Plaintiff had mistaken his Action For the Action is given to the King only And therefore said to Henden demur if you will The Case was that the Defendant purchased Lands in anothers Name hanging the Sute in Chancery for it And after rules for Publication was given in the Cause Malins Case AYliff moved in arrest of Iudgement in an action of Battery c. And the cause that he shewed was An issue mistaken cannot be amended It was brought against William Malin of Langlee and in the Record of nisi prius It was William Langley of Malin But by the Court it ought to be amended For it is a misprision apparently of the Clark For the whole Record besides is right And the Record of nisi prius ought to be amended by the Record in the Bench according to the 44 E. 3. But if the issue had been mistaken otherwise it had been Arrerages for rent upon an estate for life cannot be forfeit by Outlawry NOte That it was agreed by the whole Court That arrerages of rent reserved upon an Estate for life are not forfeited by Outlawry because that they are real and no remedy for them but a distress Otherwise if upon a Lease for years c. Hill 6 Car. Com. Banc. MEmorandum that this term Sir Humfrey Davenport puisne Iudge of the Common Bench was called into the Exchequer to be Chief barron Browns Case AN Information upon the Statute of 5 Eliz. pro eo that one Brown was retained an Apprentice in Husbandry until the 21 year of his age and that he before his age of 21 years went away And the Defendant absque ullo testimonio detained him contra formam Statuti And by Hutton and Harvey Iustices only shewed the branch of the said Statute which says And if any servant retained according to the form of this Statute depart from his Master c. Hil. 6 Car. Com. Banc. And that none of the said reteined persons in Husbandry until after the time of his reteiner be expired shall depart That is not to be intended of an Apprentice in Husbandry but of an hired servant For the Statute did not intend to provide for the departure of an Apprentice because that an Apprentice ought to be by Indenture And then a writ of Covenant lies upon his departure to force him to come again And by the Common Law an
put off till the next day by nine in the morning Collins against Thoroughgood AN action of Covenant was brought against the Executor and the breach assigned for default of reparation committed in the time of the Executor and damages were assessed And the question was moved by Atthow whether the Iudgement shall be de bonis propriis or de bonis Testatoris And upon view of presidents it was adjudged that it shall be de bonis Testatoris For this is the Testators Covenant and obliges the Executor as representing him And therefore he ought to be sued by that name Waters against Thomson IN an action of slander for calling him Bankrupt Iudgement was given for the Plaintiff And it was afterwards moved in arrest of Iudgement Because that in the Declaration it is said that he was a seller of Wool And Serjeant Ward said because he did not allege that he was a Merchant that it would not hold But the Court over-ruled him Tomkin's Case A Man cannot plead a former Iudgement had against the Plaintiff in an action brought by the Plaintiff against the Defendant But Outlawry he may Which was not denyed Baker against Webberly THat if a mans Dog runs at the Sheep and kills them not with his consent there will no action lie But otherwise if with his consent Recovereis suffer per gardens of the lands of the Infant MEmorandum That the 26 Decemb. 21 Iac. that letters under the privy signet and sign Mannual came unto the Iudges of the Com-Pleas importing that the King had been humbly petitioned by Mountioy Blunt being under the age of 21 yoars as well by himself as his kinred and Feoffees into whose custody the late deceased Earl of Devonshire did commit his estate in trust that he would declare unto us his liking that he might be permitted to suffer a Common recovery of the Mannor of Wansled for payment of his debts and further advancement of his means to the use of the Duke of Buckingham which his Majestie by his said Letter did accordingly Now although the Iudges did never hold such Recoveries unlawfull or void in Law yet divers motions in the like kind have been refused as holding it very inconvenient But inconveniencies are best discerned by circumstances and therfore my L. Chief Iustice Richardson acquainting the other Iustices therewith it was determined that he should send for the young Gentleman and examine him sole and secret of the reasons of this Recovery and of his own free-will Which I did and being of 18 years of age or thereabouts suffered me of his own good liking that he did conceive it to be necessary for his estate yet not therwith contented the Chief Iustice caused the Earl of Southampton the L. Davers and Mr. Wakeman the persons to whom the world knew he his Estate was committed in trust and that they had worthily performed and calling them in an open Court and questioning with them they confessed to us all that it was necessary for the young Gentleman and for his good to part with this thing and that therefore they had made means to his Majesty for this Letter in that behalf whereupon the Recovery was passed openly at the Bar the last day of Michaelmas Term against Mr. Blunt in person and the Earl of Southampton the Lord Daverâ—… and Mr. Wakeman were admitted his Guardians Brownlow and Moyle Prothonotaries shewed Presidents of the like Recoveries against Infants M. 23 H. 8. rot 441. et P. 38 H. 8 rot 128. Tr. 28 El. rot 17 et M. 26 et 27 El. rot 45. 572 P. 42 Eliz. rot 1. 5. 63 44. 45 69 70 89 91 94 P. 32 El. rot 60 T. 38 El. rot 41 44 40 El. rot 62. 124 112 M. 40 et 41 El. rot 13 M. 34 et 35 El. rot 166. per Zouch M. 39 40 Eliz. rot 82. 173. M. 41 42 El. rot 24. 106. et 72 T. 42. El. rot 20. M. 42 et 43 El. rot 173. Chamberlines Case HE brought an Action upon the Statute of Hue and Cry and after Issue joyned and entred The Record was that the Robbery was done 30 Octob. It was ordered by the Court of Common Pleas that the Record shall be amended and made the 30th of September upon the Affidavit of the Attorney for the Plaintiff that he had given direction accordingly And shews to the Court the Book of the Office Male against Kett. HE brought an Action against Kett for these words Thou hast stollen my Corn out of my Barn and verdict was given for the Plaintiff And after verdict it was moved in arrest of Iudgement That perchance the Corn was not of the value of a penny Yet Iudgement was given for the Plaintiff For it is felony although it is not great Hitcham against Cason before NOw they urged 5 Eccles If thou see the oppression of the poor and perverting of Iudgement Perverting of Iudgement is the Oppression But then he did not again manifest Injustice It was objected that he might give erroneous Iudgement and that is Injustice If they are taken all alike it is clear that they are actionable and the party himself ought not to interpret but the Iudge The Case between Palmer and Boyer M. 37 38 El. He hath as much Law as a Iackanapes spolton of Palmer being a Lawyer and adjudged actionable And they were spoken to disgrace him in his profession 7 Iac. Thou a Barrester thou a Barrettor and thou durst not shew thy face Thou study the Law thou a Dunce actionable upon he same reason Mich. 14 Iac. Com. Banc. Beck against Barneby Spoken of an Attorney Thou art a Common maintainer of Sutes and a Champerter c. It was objected there that it was lawfull for an Attorney to maintain sutes Yet because he said Champertor it was actionable And Trin. 12 Iac. Com Banc. Yeardlies case He said of the Plaintiff being an Attorney Your Attorney is a bribing Knave and hath taken 10 l. of you to cousen me Answered that the words shall be intended of him as Attorney and so actionable One exhibites a Petition where it was first against the Lord chief Baron In which he said Tanfield is a great Oppressor of the Country and did remove the Boundaries between his Land and mine And it was adjudged actionable Pasc 4 Iac. Banc. Roy. Master Kebbe is a Basket Iustice and a partial Iustice and I 'll give him 5 l. a year for all Gifts that are brought to him for Injustice done And adjudged actionable And the word Partial Iustice bears an Action Hil. 40 Car. Kings Bench. Denson is a sweet Iustice of peace who gave a Warrant to apprehend I. S. and sent him notice of it Is actionable For it is a misbehaviour in a Iustice of Peace to do so H. 6. Iac. Com. Banc. rot 1159. Lonsman against Peck The Plaintiff shews that he had been impannelled upon several Iuries upon life and death and the Defendant said Thou art a Iury man and