extend ad veritatem facti which is set forth in the Avowry but only to reputation and so both stand together well enough Rent charge parcel of a Mannoâ— And that a Rent charge may be parcel of a Manor see 22 E 3. 13. 31. E 3. 23. in the Lord Tiptofts Case where it is ruled that title made to a Rent charge as parcel of a Manor is a good title and the Assize awarded upon it and in our Case the Reputation is enforced by the sute at the Court which was also reserved upon the said Feoffment together with the said Rent so as the intent of the parties to the Feoffment was that this Rent so reserved and accompanyed with the said sute shall be esteemed a Rent service and so parcel of the Manor and as to the continuance of Reputation it sufficeth if at the time of the bargain and sale aforesaid which was 26 H 8. it was by many reputed parcel of the Manor and he cited the Case of the Marquess of Winchester The King gave to his Ancestor the Manor of Dale and all lands then antea reputed parcel of the said Manor and in a Bill of Intrusion against the said Marquess he pleaded the grant with averment that the Land then antea reputed parcel Manerii praedict And because he did not shew certainly at what time the Land was reputed parcel of the Manor Iudgment was given for the Queen for it might be for any thing in his Plea that the said Land was reputed parcel of the said Manor before time of memory which Reputation would not serve but such Reputation ought to be within time of memory and understanding He cited also the Case of the Earl of Leicester King Edward the sixth seised of the Manor of Clibery of which a Wood was parcel granted the said Wood in Fee which afterwards escheated to the King for Treason Queen Mary granted the said Wood to another in Fee who granted it to the now Queen who granted the said Manor omnes boscos modo vel ante hac cognit vel reputat ut pars membr vel parcel Maner praedict to the Earl of Leicester and it was resolved in the Exchequer that by that grant the said Wood did pass to the Earl and Iudgment was given against the Queen Dy. 362 â— for it was part of the Manor in the time of E 6. at which time an t ' hac without the word unquam shall be extended ad quoddamcunque tempus praeteritum And Reputation needs not so ancient a Pedigree for to establish it for general acceptance will produce reputation As the house of the Lord Treasurer now called Tibould was of late a private Manor but now hath a new name by which it is known and that within these twenty years which is not so long a time as we have alleged for our Reputation and would pass in a conveyance by such name so None-such But as to Reputation I conceive that Reputation is not what this or what that man thinketh Reputation quid but that which many men have said or thought who have more reason to know it quaenam est inter illos reputatio There was a Case ruled in the Exchequer 13 Eliz. in a Bill of intrusion the Case was that King Hen. 6. was seised of a Manor to which a Neif was regardant who purchased Lands which the King seised and let by Copy as parcel of the said Manor and so continued until the time of E 6. who granted the same to Allice Hardwick and all Lands Tenements reputed parcel of the said Manor And it was adjudged that the said Land so purchased by the said Neif and demised by Copy did pass by the said grant to Hardwick And afterwards the same Term the Iustices without any solemn Argument shewed their opinions in the principal Case viz. That this Rent did not pass by the bargain and sale made as above by Anthony Wingfield to Bohan father of the Avowant for here in the premisses of the Avowry is not any matter set forth importing Reputation or by which it may appear that the Rent in question was ever reputed parcel of the said Manor but rather to the contrary and the bare averment of Reputation in the conclusion of the Avowry is not sufficient to induce Reputation But if the Avowant had set forth in his Avowry any special matter to induce the Court to conceive a Reputation upon the matter of the Avowry as to shew that the Bayliffs of the said Manor had always received the said Rent as parcel of said Manor and as Bayliffs of the said Manor had accounted for it as parcel of the Manor and that the Lessees of the said Manor had enjoyed the said Rent as parcel of the said Manor the same had been good matter to induce a Reputation to have incorporated the said Rent with the said Manor and so judgment was given against the Avowant and of such opinion as was affirmed by Wray was Anderson chief Iustice of the Common Pleas and Manwood chief Baron of the Exchequer XIX Cham and Dovers Case Pasch 26 Eliz. in the Kings Bench. Ejectione firmae IN an Ejectione firmae the Case was that one Michel was seised of the Manor of D. within which diverse parcels of Land part of the said Manor where customary Tenements demised and demisable by copy c. according to the Custom of the said Manor for one two or three lives within which Manor there was a Custom scil that the Lord of the Manor for the time being might grant Copy-hold estates for life in Reversion The Lord granted such Lands for life by copy in possession took a wife and granted the same Copy-hold to a stranger in Reversion for life and died the Copy-holder in possession died the Land demised by copy is inter alia assigned to the Wife for her Dower who had Iudgment to recover in a Writ of Dower who entred and made a Lease thereof to the Defendant who entred against whom the Lessee of the Copy-holder brought Ejectione firmae Custom ad pasturandum non ad colendum and all this matter was found by Verdict and further found that every Copy-holder of the said Manor might Lease his Copy-hold for a year ad pasturandum sed non ad colendum and that the Lease made to the Plaintiff was for a year ad pasturandum 1. Cro. 469. Wells versus Partridge Post 100. Popham Attorny General of Council with the Defendant took exception to the Declaration because the Plaintiff had declared a Lease at the common Law and the Iury have found a Lease by the custom which cannot stand together And such a Verdict doth not maintain the Declaration as if the Plaintiff had declared upon a Lease for years of Lands and the Iury found a devise for years c. but the exception was disallowed by the Court. As to the matter in Law he argued that the Tenant in Dower should
the remainder to the use of John Father of the Plaintiff in tail the Grandfather died the Father entred Feoffments and by Indenture by words of bargain and sale without any words of Dedi concessi conveyed the Lands to the use of A. in Fee and in the same Indenture was a Letter of Attorney to make Livery which was made accordingly and the said A. by the said Indenture covenanted that if the said John should pay before such a day to the said A. forty shillings that then the said A. and his Heirs would stand seised c. to the use of the said John and his Heirs and if the said John did not pay c. then if the said A. did not pay to the said John within four days after ten pounds that then the said A. and his Heirs from thenceforth shall be seised to the use of the said John and his Heirs c. and the said John covenanted further by the said Indenture to make such further assurance as the Council of the said John should advise Each party failed of payment John levied a Fine to A. without any consideration it was adjudged upon this matter a good Feoffment well executed by the Livery Hob. 151. Dyer 361. a More 194. Post 195 196 197. More 35. b. notwithstanding that the words of the conveyance are only by bargain and sale and that the Covenant to be seised to the new uses upon payment and not payment being in one and the same deed should raise the use upon the contingency according to the limitation of it and Iudgment was given for the Plaintiff accordingly XXXII Bedows Case Trin. 26 Eliz. In the Kings Bench. IN an Action of Debt upon a Bill sealed against one Bedow he demanded Dyer of the Bill which was Memorandum that I John Bedow have agreed to pay to R. S. the Plaintiff twenty pounds and thereupon there was a Demurrer first that the Deed wanted the words In cujus rei testimonium c. but notwithstanding that the Court held the Deed good and said so it was lately adjudged Another matter was because the words of the contract are in the preter Tense I have agreed but notwithstanding that exception the Plaintiff had Iudgment to recover as by Wray these words dedi concessi according to the Grammatical sence imply a gift precedent but yet they are used as words of a present conveyance Iudgment was given for the Plaintiff XXXIII Marsh and Smiths Case Pasch 27. Eliz. In the Common Pleas. 1 Cro. 38. 39. GEorge Marsh brought a Replevin against Smith and Paget who make Conusans as Baylies to Ralph Bard and upon the pleading the Case was That Sir Francis Askew was seised of the Mannor of Castord in his Demesne as of Fee which Mannor did extend unto Daston North-kelsey Grants Mannor 2 Len. 41 42. South-kelsey D. and C. and had demesnes and services parcel of the said Mannor in each of the said Towns and so seised granted totum manerium suum de North-kelsey in North-kelsey to the said Bard and his Heirs and granted further all his Lands Tenements and Hereditaments in North-kelsey and to that grant the Tenants in North-kelsey did attorn And the Land in which the said Distress was taken is in North-kelsey the only question in the case was if by this grant to Ralph Bard a Mannor passed or not And the case was argued by the Iustices And Periam Iustice argued That upon this grant no Mannor passed for before the grant there was no Mannor of North-kelsey or in North-kelsey therefore no Mannor can pass but the Lands and services in North-kelsey shall pass as in gross for they were not known by a Mannor but for parcel of a Mannor And a Mannor is a thing which cannot be so easily created Mannor what it is for it is an Hereditament which doth consist of many real things and incorporated together before time of memory common reputation cannot be intended of an opinion conceived within three or four years but of long time And appendancy cannot be made presently but by a long tract of time As an Advowson in gross cannot be made by an Act appendant and the Queen her self by her Letters Patents cannot make a Mannor at this day à multo fortiori a subject cannot and the Queen cannot by her Letters Patents without an Act of Parliament annex a Mannor to the Dutchy of Lancaster which see 1 Ma. Dyer 95. And where it is usual that the Queen doth grant Lands Reputation tenendum de manerio suo de East Greenwich in communi soccagio if upon the death of such a Grantee without heir the said Land doth revert unto the Queen in point of Escheat the said Land shall not be parcel of the said Mannor for the Land was not parcel of the Mannor in truth but in reputation And he cited a case that the Lord Sturton was seised of the Mannor of Quincamore and was also seised of the Mannor of Charleton which was holden of the said Mannor of Quincamore The Lord Sturton was attainted of Felony and afterwards Queen Mary gave the said Mannor of Quincamore to Sir Walter Mildmay cum omnibus suis juribus parcellis it was adjudged that the Mannor of Charleton did pass for it is now become parcel of the Mannor of Quincamore and I grant that things which go with the Land shall pass well enough As if the Queen grant to three Coparceners of three Mannors 1 Inst 122. a 32 â—â— 6 11. the liberty of Warren in all the said three Mannors they afterwards make partition so as each Coparcener hath a Mannor and the one of them grants her Mannor the Grantee shall have Warren Grants of the King. But if the Queen grant a Leet ut supra and the Coparceners make Partition and each of them hath a Mannor she shall not have also a Leet but the Leet which was grantted doth remain in common and there shall not be there upon such partition several Leets And also I grant that in the case of two Coparceners of a Mannor if to each of them upon partition be allotted demeans and services each of them hath a Mannor for they were compellable to make partition by the common Law being in by descent See 26 H. 8. 4. 9 E. 4. 5. contrary of Ioynt-tenants for they are in by purchase and were not compellable by the common Law to make partition and therefore upon partition betwixt them a Rent cannot be reserved for the equality of the partition And in every Manor a Court is requisite for a Court Baron is incident to a Manor Court Baron but a Court cannot at this day be founded or erected but it ought to be of long time And in our Case no Court hath ever been holden in North-kelsey And if I be seised of the Manor of B. which extends into C. and B. and I grant my Manor of B. in D. now a Manor
things 1. Leases the number of the years 21 non ultra 2. antiquus redditus vel eo amplior yet in reason and good understanding we ought to think that the intent of the Act was that the said Manor should now come to the said Lady Frances surcharged with Leases in Reversion or to begin at a day to come for if by this Act the said Earl might make a Lease to begin three months after by the same reason he might make a Lease to begin twenty years after and also to begin after his death It hath been objected that the Lord Treasurer had a Commission to make Leases of the Queens Lands and that by virtue thereof he made Leases in Reversion I know the contrary to that for every such Lease is allowed by a Bill assigned and not by the ordinary Commission aforesaid the words of our Act are Dimissiones facere pro termino 21. annorum that shall be meant to begin presently As if I lease to you my Lands for one and twenty years it shall be intended to begin presently and he cited the Case betwixt Fox and Collier upon the Statute of 1 Eliz. cencerning Leases made by Bishops That four years of a former Lease being in being the Bishop leased for one and twenty years the same was a good lease notwithstanding the former lease for the lease began presently betwixt the parties And it hath been adjudged that a lease for years by a Bishop to begin at a day to come is utterly void And he cited the Case of the late Marquess of Northampton who by such an Act of Parliament as ours was enabled to make leases of the Lands of his Wife for one and twenty years and of the said Lands an ancient lease was made before the said Act which was in esse and before the expiration thereof he made a lease by virtue of the said Act to commence after the expiration of the former lease and that lease was allowed to be a good lease warranted by the said Statute because that the first lease which was in esse was not made by force of the said Act but if the said former lease had been made by virtue of the said Statute the second lease had been utterly void XLV Trin. 28 Eliz. In the Kings Bench. Copy-hold Surrender by Attorney not good A Copy-holder of the Manor of the Earl of Arrundel did surrender his customary Lands to the use of his last Will and thereby devised the Lands to his youngest Son and his Heirs and died the youngest Son being in prison makes a Letter of Attorney to one to be admitted to the Land in the Lords Court in his room and also after admittance to surrender the same to the use of B. and his Heirs to whom he had sold it for the payment of his debts And Wray was of opinion that it was a good surrender by Attorney but Gawdy and Clench contrary 3 Cro. 218. 9 Co. 75. and by Gawdy If he who ought to surrender cannot come in Court to surrender in person the Lord of the Manor may appoint a special Steward to go to the prison and take the surrender c. and by Clench Lessee for years cannot surrender by Attorney but he may make a deed purporting a surrender and a letter of Attorney to another to deliver it XLVI Troublefield and Troublefields Case Trin. 28 Eliz. In the Kings Bench. Dy. 337. b. Co. 1 Inst 15. 2. b. 52. 245. b. 252. 6. Post 51. Entry THe Case was that a Copy-holder did surrender to the use of his Will and thereby devised the Land to his Wife for life the remainder over to his son in tail and died the Wife entred and died a stranger did intrude upon the Lands and thereof made three several Feoffments to three several persons he in the Remainder entred upon one of the said three Feoffees in the name of all the Lands so devised and made a lease of the whole Land And by Clench and Wray it was a good Entry for the whole and by consequence a good lease of the whole Gawdy contrary Note all the Lands were in one County See 16 Eliz. Dyer 337. 9 H. 7. 25. XLVII Parmort and Griffina's Case Trin. 28 Eliz. In the Kings Bench. IN Debt upon an Obligation by Parmort against Griffina a Merchant-stranger the Defendant pleaded Debt that the Obligation was made upon condition for the performance of certain Covenants contained within certain Indentures and shewed what c. and alledged further that in the said Indenture there is a proviso that if aliqua lis vel controversia oriatur imposterum by reason of any clause article or other agreement in the said Indenture contained that then before any sute thereupon attempted the parties shall choose four indifferent persons for the ending thereof which being done the Indenture and Obligation shall be void And in fact saith that Lis controversia upon which the Action is brought groweth upon the said Indenture upon which there was a demurrer in Law. And because the Defendant hath not shewed specially upon what controversie or strife and upon what article certain The Court was clear of opinion that the Bat was not good And also the Court was of opinion Proviso taken strictly that the said Proviso did not extend to subject and submit the breach of every Covenant or Article within the said Indenture to the Arbitrament of the said four persons but only where strife and controversie doth arise upon the construction of any Covenant c. within the said Indenture so as the Defendant ought to have shewed such matter which fell within the Arbitrament by the meaning of the said Indenture and Iudgment was given against the Defendant XLVIII Partridge and Partridges Case Mich. 28 29. Eliz. In the Common Pleas. IN Dower by Partridge against Partridge the Case was Dower that Land was given to the Father for life the reversion to his Son and Heir for life the remainder to the right Heirs of the body of the Father The Father and Son joyn in a Feoffment to the Vncle in Fee scil to the Brother of the Father The Vncle takes a Wife the Father dieth the Son being his Heir in tail the Vncle dieth without issue so as the Land descendeth to the Son as Heir to his Vncle against whom the Wife of the Vncle brought Dower It was moved if the Son being Herein can to his Father and Heir also to his Vncle for the Fee descended be now remitted for then no Dower accrueth to the Wife of the Vncle for the estate of which she demands Dower is gone but if the livery in which the Son joyned with his Father be the livery of the Son Remittâ— the same lies in his way in the impediment and preventing of the Remitter so as during his life he shall be adjudged seised of the Lands in Feesimple by descent from his Vncle Then Dower lyeth for the same
demanded the Rent at the Temple Church and for not payment thereof re-entred Dyer 142. Towse The re-entry of the Lessor was not lawful for by the said Reservation the Rent was not due until the twelfth day after Michaelmas for before that he cannot have an Action of Debt or distrein for it Conditions expounded liberally for the party who is to perform it and these words dierum solutionis are greatly material for conditions are odious in Law and if the words thereof be doubtful they shall be construed for the avail of him who is bound by it As in the case of 28 H. 8. 17. If I be bound to you upon condition to pay to you before the Feast of St. Thomas twenty pounds if there be in one year two Feasts of St. Thomas the latter Feast shall be my day of payment Wray This Rent is not due until the last day of the twelve days for neither debt or distress lieth for it then the day of payment mentioned in the condition ought to be the last day of the last twelve days and dict spatium shall be construed the same number of days and not the same days 4 Len. 91. And at last it was resolved and adjudged that the entry of the Lessor was not congeable but he ought to expect the latter day of the twelve days CXCIX Sir George Farmer and Brooks Case Trin. 31. Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared that time out of mind Prescription Owen 67. 1 Cro. 203. 8 Co. 125. c. there had been a Manor called Tocester and also there had been there a Town called Tocester and that all the Messuages Lands and Tenements within the said Town had been holden of the said Manor and that he is Lord of the said Manor and that he and all those whose estate he hath in the said Manor have used to have a Bake-house and a Baker to bake white bread and house bread for all the Inhabitants and Passengers there which bread hath been of a reasonable Assize and price and sufficient for all the Inhabitants and Passengers there but doth not say wholsom and that time out of mind c. no person had or used any Bake-house there but by the appointment of the said Lord of the Manor for the time being But that now the Defendant had erected a Bake-house unto the Nusance of the Plaintiff The Defendane shewed that at the time he had set up his Bake-house there were three Bakers there and shewed how that he was Apprentice to the Trade and that at the time he set up the said Bake-house for the benefit of all persons as it was lawful for him to do Morgan The matter only is if this prescription made by the Plaintiff be good or not It is to be considered if all prescriptions at the Common Law are one and if all prescriptions be guided by one rule and line And I conceive that prescription at the Common Law is but one And there are two points in prescriptions Vsage and Reasonableness but they are not guided by one line for some prescriptions are against strangers and then there ought to be consideration and recompence Some prescriptions against privies as between Lord and Tenant for there the Tenure is sufficient volenti non fit injuria For the first see 5 H. 7. 9. where in Trespass the Defendant doth justifie that the place where is his Free-hold and that he had a Foldage and that he and all those whose estate he hath c. have used that if any man depasture his Sheep with the Sheep of the Defendant for the day time that it was lawful at night to take all the Sheep and put them in his fold all the night and in the morning to put them out and the same was holden a good prescription for which the Plaintiff traversed the prescription And for the other see 11 H 7. 13 14. 21 H 7. 40. betwixt Lord and Tenant that every Tenant for every pound-breach should forfeit three pounds and see the Prior of Dunstables case 11 H. 6. 19. Br. prescription 98. The Prior declared that he and his Predecessors time out of mind c. had had a Market in D. every week one day and that Butchers and others who sold victuals should sell the same in the high street upon stalls of the Prior to them assigned and that the Prior should have one penny for every stall every day and shewed that the Defendant had sold in his house whereby the Prior had lost the advantage and profit of his stalls there And the same was holden a good prescription And on the other side the Defendant did prescribe that he and all house-holders of D. had used to sell in their houses The same was holden a naughty prescription See 43 E. 3. 5. and see also Suit ad moliendum upon prescription without tenure for peradventure he had not any Mill there before and now it is an ease to the neighbours Vide Register 105. where the Writ is Cum querens habeat ratione Dominii sui apud R. talem libertatem quod nullus in eadem villa uti debeat seu consuever Officio sine Mysterio tinctoris sine licentia ipsius querentis the same is good by way of prescription but is void by way of grant And there the Defendant is forbid to use the trade of his Dye-house whithin his Manor without his licence which appeareth upon the Writ which is in the Register which Register was made by the Iudgment and advise of the grave Iudges of the Law and there is remedy given for the like case as in the case at the Bar. And see F. B. 122. b. Sectam ad furnam and although such a manner of prescription should bind a stranger yet here our case is stronger for the Defendant is our Tenant And Hill. 15 Eliz. Rot. 166. an express Iudgment was given in such case for the Plaintiff Buckley contrary although here be a loss to the Plaintiff yet there is not a wrong as the case in 12 H. 8. 3. If I have an acre of Land adjoyning to your acre and my acre is drowned I may make a sluce to carry away the water and although that by so doing your acre is drowned yet I shall not be punished for it because it is lawful for me to make a trench in my own Land and then if it be any Nusance to you you may make a trench in your ground and so carry away the water until it come to a River or ditch See the case 11 H. 4. of Schoolmasters 200. for it is damnum absque injuria And it is against the liberty of the Common-wealth 1 Cro. 112 113. that liberty of Contracts be not free but restrained with Priviledges to one only Vide 22 H. 6. 14. If one erect a Mill neer to my Mill no Action lieth against him for it is for the use of the Kings Subjects
second Lessee and declared upon a Lease made for years without speaking of the Indenture And Gawdy Serjeant demanded the opinion of the Court if the Defendant might safely plead no Wast And they conceived that it should be dangerous so to do Then it was demanded if the Defendant plead that the Plaintiff had nothing tempore dimissionis whereof he had counted if the Plaintiff might estop the Defendant by the Indenture although he had not counted upon it and if such Replication be not a departure And it seemed to Periam and Leonard Custos brevium that it was not for it is not contrary to the Declaration but rather doth enforce the Declaration CCXXI Mich. 31 Eliz. In the Common Pleas. WAlmesley Serjeant demanded the opinion of the Court upon this matter Land is given to Husband and Wife in special tail during the Coverture they have issue the Husband is attainted of Treason and dieth the Wife continues in as Tenant in tail the issue is restored by Parliament and made inheritable to his Father saving unto the King all advantages which were devolded unto him by the Attainder of his Father the Wife dieth And he conceived that the issue was inheritable for the Attainder which disturbed the inheritance is removed and the blood is restored and nothing can accrue to the King for the Father had not any estate forfeitable but all the estate did survive to the Wife not impeachable by the said Attainder And when the Wife dieth then is the Issue capable to enherit the estate tail Windham and Rhodes prima facie thought the contrary yet they agreed that if the Wife had suffered a common Recovery the sâ—me had bound the King. CCXXII Mich. 31 Eliz. In the Common Pleas. IN an Action upon the Case the Plaintiff declared Assumpsit that he had delivered to the Defendant diversa bona ad valentiam 10 li. the Defendant in consideration thereof did promise to pay to the Plaintiff the Debt owing pro bonis praedictis and did not shew that the Defendant bought the said goods of the Plaintiff and so it doth not appear that there was any Debt and then a promise to pay it is meerly void which was agreed by the whole Court. CCXXIII. Seaman and Brownings Case Mich. 31 Eliz. In the Common Pleas. GEorge Seaman brought Debt upon a Bond against W. Browning and others Executors of one Marshal the condition was Debt that where the said Marshal had sold certain Lands to the Plaintiff if the said Plaintiff peaceably and quietly enjoy the said Lands against the said Marshal c. and assigned the breach in this that the said Marshal had entred upon him and cut down five Elms there upon which the parties were at issue And it was found that A. servant of the said Marshal by commandment of his said Master had entred and cut c. in the presence of his said Master and by his commandment for he is a principal Trespassor And it was so holden by the Court. CCXXIV. Mich. 31 Eliz. In the Common Pleas. IF the Kings Tenant by Knights service dieth his Heir within age 8 Co. 172. and upon Office found the King seiseth the Body and Land yet the Heir during the possession of the King may sell the Lands by Deed enrolled or make a Lease of such Land and the same shall bind the Heir notwithstanding the possession of the King but if he maketh a Feoffment in Fee it is utterly void for the same is an intrusion upon the possession of the King but where the King by Office found is entituled to the Inheritance as that his Tenant dieth without Heir whereas it is false for which the King seiseth in such case the Tenant of the King before his Ouster le mayne cannot make a Lease for years or sell the Land by Deed enrolled The Case depended in London before the Iudges of the Sheriffs Court. The King by colour of a false Office which doth falsly entitle him to the Inheritance is seised of certain Land he who hath right leased the same for years by Deed indented and then an Ouster le mayne was sued and he enfeoffed a stranger And it was holden that the Lease should not bind the Feoffee although it was by Deed indented for the Feoffee is a stranger to the Indenture and therefore shall not be estopped by it 18 H. 6. 22. A stranger shall not take advantage of an Estoppel and therefore shall not be bound by it As if one take a Lease for years by Indenture of his own Lands the same shall bind him but if he dieth without Heir it shall not bind the Lord in point of Escheat CCXXV. Gibbs Case Mich. 31 Eliz. In the Common Pleas. Trover and Conversion 1 Cro. 861. Owen 27. GIbbs brought an Action upon the Case upon Trover and Conversion of a Gelding and the Case was that one P. had stolen the said Horse and sold the same unto the Defendant in open Market by the name of Lister and the said false name was entred in the Toll-book And it was holden clear by the Court that by that sale the property was not altered CCXXVI Mich. 31 Eliz. In the Common Pleas. Owen 45. Hutton 105. 1 Cro. 734. Post 322. TEnant in Socage leased his Lands for four years and died his Heir within the age of eight years the Mother being Guardian in Socage leased the Land by Indenture to the same Lessee for fourteen years It was holden by the Court that in this Case the first lease is surrendred but otherwise upon a Lease made by Guardian by Nurture CCXXVII Kimpton and Dawbenets Case Mich. 31 Eliz. In the Common Pleas. IN Trespass the Defendant did justifie by a grant of the Land where c. by Copy The Plaintiff by Replication saith that the Land is customary Land ut supra and claimed the same by a former Copy The Defendant by Rejoynder saith that well and true it is that the Lord may grant Copies in possession at his pleasure and also estates by Copy in Reversion with the assent of the Copy-holder in possession but all estates granted by Copy in Reversion without such assent have been void It was argued that this custom is not good for it is not reason that the Lord in disposing of the customary possessions of his Manor should depend upon the will of his Tenant at will and the same is not like to the case of Attornment for there the Attendancy is to be respited which is not to be done here for the Copy-holder in possession shall continue attendant to his Lord notwithstanding such a grant in Reversion And see for the unreasonableness of the custom 19 Eliz. 357. in Dyer Sallfords Case It was moved on the other side that the Custom was good enough and 3 H. 6. 45. was vouched That every Freehold of a Manour upon alienation might surrender his Land c. It was adjourned CCXXVIII Marriot and Pascalls Case in a Writ of
Will he cited Chicks case 19 Eliz. 357 and 23 Eliz. 371. Dyer At another day it was argued by Cook That both the Houses pass and the words take the profit do not restrain the general words before viz. All my Lands and Tenements but rather expounds them sci such profits that they might take of a Reversion cum acciderit for it may be that the Brother shall die within ten years And he cited the case 34 H. 6. 6. A man seised of diverse Reversion upon estates for life devises them by the name of omnium terrarum tenementorum which were in his own hands and by those parols the Reversion did pass and yet the Reversion to speak properly was not in his hands and if the Brother had died in the life of the devisor they had clearly passed and then his death or life shall not alter the case And he resembled the case to the case in 39 E. 3. 21. The King grants to the Abbot of Redding That in time of vacation the Prior and Monks shall have the disposition of all the possessions of the said Abbey ad sustentationem Prioris Monachorum 3 Cro. 290. and if in the time of vacation they shall have the Advowsons was the question for it was said That advowsons could not be to their sustentation But yet by the better opinion the grant of the King did extend to Advowsons for it shall be intended such sustentation as Advowsons might give Godfrey Our Case is not like to the case of 34. H. 6. for there the Devisor had not any thing in possession and therefore if the Reversion did not pass the devise should be utterly void Gawdy conceived that the house in possession only passed for the devise extends to such things only whereof the Profits might be taken but here is not any profit of a Reversion Clench and Wray contrary The intent of the devise was to perform the Will of his Father and also of his own Will and in case the house in possession was not sufficient to perform both the Wills all shall pass and therefore the devise by favorable construction is to be taken largely so as the Wills might be throughly performed and also the devise is general and further all his Lands and Tenements which are not restrained by the Subsequent words to take the profits for to have and to hold and to have and to take the profits is all one CCLV. Slugge and the Bishop of Landaffs Case Trin. 31 Eliz. In the Kings Bench. SLugge libelled against the Bishop of Landaff in the Ecclesiastical Court because where he was presented by the Dean and Chapter of Gloucester to the Church of Penner the Bishop did refuse to admit him and now the Bishop sued a Prohibition and shewed Prohibition Quod non habetur talis Rectoria cum cura animarum in eadem diocesi sed perpetua vicaria And by Popham a Prohibition doth not lye but the matter ought to be determined in the Ecclesiastical Court and when he who is presented to the same Church whether it be a Church or not shall be tried in an action of trespass and the like matter was ruled Mich. 14. Eliz. betwixt Weston and Grendon who was presented by the Queen and it was holden that because institution and admission do belong to the Ecclesiastical Court and not to the Kings Court that no Prohibition should lye and therefore he prayed a Consultation And note That the Defendant in the Prohibition did not demur formally upon the suggestion for the Iudges use if the suggestion be not sufficient to maintain the Prohibition to grant a Consultation without any formal demurrer upon the Suggestion if the insufficiency of the Suggestion be manifest Trial. which was granted by the whole Court. Cook That a Consultation ought not to be granted for whether there be such a Rectory or not shall be tried here So 2 H. 4. 30. Prior or not Prior 49 E. 3. 17 18. Wife or not Wife but never accoupled in loyal matrimony by the Bishop Ante. 53. 54. 44 E. 3. So within or without the Parish 50 E. 3. 20. So 45 E. 3. Quare Impedit 138. In a Quare Impedit no such Church within the County Afterwards at another day Popham put the case Slugge was presented to the vicaridge of Penner the Bishop refused to admit him and admitted one Morgan Bletthen unto the Parsonage of Penner at the presentment of the Lord St. John Slugge sued the Bishop for contumacy per duplicem querelem The Bishop said Non habetur talis vicaria upon which matter he sued a Prohibition and he conceived That the Prohibition did not ly for a Vicar is but he that gerit vicem Personae to supply his place in his absence so as the same is a spiritual matter which ought not to be tried here Also the libel is to have Admission and Institution and the other matter ariseth by their Plea sci Quod Rectoria de Penner est Ecclesia cum cura animarum absque hoc quod habetur talis Vicaria and so it is but an incident to the principal matter wherefore it shall be tried there and he prayed a Consultation Cook We have shewed That in the time of E. 3. one L. was seised of the Manour of Penner to which the Church of Penner is appendant and we alledge presentments from the time and we convey it to the Lord St. John which now is and they would now defeat us by this surmise That there is no such Church with cure of Souls which is triable here Popham the libel doth contain nothing but contumacy in the Bishop in that he hath not admitted Slugge and the other matter comes in the Replication and afterwards by assent of the parties a Consultation was granted quoad institutionem of Slugge only but that they should not proceed further CCLVI. Fennick and Mitfords Case Pasch 31 Eliz. Rot. 154. In the Kings Bench. Moâ—e 284. 2 Co. 91. THe Case was A man seised of Lands in Fee levieth a Fine to the use of his wife for life the remainder to the use of his eldest son the heirs males of his body the Remainder to the use of the right heirs of the Conusor The Conusor makes a Lease for a thousand years to B. the eldest son dieth without issue male having issue a daughter the Conusor dieth the wife afterwards dieth the eldest son enters and leaseth the Lands to the Plaintiff Atkinson That upon this conveyance a Reversion was left in the Conusor although by the fine all is conveyed out of the Conusor and so as it hath been objected the use limited to the right heirs of the Conusor is a new thing For it is to be observed When a man is seised of Lands he hath two things the Land or the Estate and secondly the use which is the profits and if he make a Feoffment without consideration by that the estate and possession passeth
appendant to it and conveyed the said capital Messuage and Advowson to the King by the dissolution and from the King to the said Thomas Long who so seised without any Deed did enfeoff the Plaintiff of the said Manor and made Livery and Seisin upon the Demesnes And that the said Thomas Long by his Deed made a grant of the said Advowson to the said Strengham and afterwards the Free-holder attorned to the Plaintiff And by the clear opinion of the whole Court here is a sufficient Manor to which an Advowson may be well appendant and that in Law the Advowson is appendant to all the Manor but most properly to the Demesnes out of which at the commencement it was derived and therefore by the attornment afterwards within construction of the Law shall have relation to the Livery the Advowson did pass included in the Livery And the grant of the advowson made mesne between the Livery and the attornment was void and afterwards Iudgment was given and a Writ to the Bishop granted for the Plaintiff CCXC. Mich. 32 33 Eliz. In Communi Banâ—o Debt A Made a Bill of Debt to B. for the payment of twenty pounds at four days scil five pounds at every of the said four days and in the end of the Deed covenanted and granted with B. his Executors and Administrators that if he make default in the payment of any of the said payments that then he will pay the residue that then shall be un-paid and afterwards A. fails in the first payment and before the second day B. brought an action of Debt for the whole twenty pounds It was moved by Puckering Serjeant Sâ—y 31. 32. 1 Cro. 797. That the Action of Debt did not lye before the last day encurred And also if B. will sue A. before the last day that it ought to be by way of covenant not by Debt But by the whole Court the action doth well lye for the manner for if one covenant to pay me one hundred pounds at such a day an action of Debt lyeth a fortiori Owen 42. 1. 2 Rol. 523. when the words of the Deed are covenant and grant for the word covenant sometimes sounds in covenant sometimes in contract secundum subjectum materiae CCXCI. Lancasters Case Mich. 32 33 Eliz. In Communi Banco Roll. Tit. Covenant pl. 72. AN Information was against Lancaster for buying of pretended Rights Titles upon the Statute of 32 H 8. And upon not guilty pleaded It was found for the Plaintiff it was moved in arrest of Iudgment because the Informer had not pursued the Statute in this that it is not set forth that the Defendant nor any of his Ancestors or any by whom he claimed have taken the profits c. and the same was holden a good and material Exception by the Court although it be layed in the Information that the Plaint himself hath been in possession of the Land by twenty years before the buying of the pretended Title for that is but matter of argument not any express allegation for in all penal Stat. the Plaintiff ought to pursue the very words of the Stat. and therefore by Anderson It hath been adjudged by the Iudges of both Benches that if an Information be exhibited upon the Stat. of Vsury by which the Defendant is charged for the taking of twenty pounds for the Loan and forbearing of one hundred pounds for a year there the Information is not good if it be not alledged in it that the said twenty pounds was received by any corrupt or deceitful way or means And in the principal Case for the Cause aforesaid Iudgment was arrested CCXCII Bagshaw and the Earl of Shrewsburies Case Mich. 32 33. Eliz. In the Common Bench. BAgshaw brought a Writ of Annuity against the Earl of Shrewsbury for the arrerages of an Annuity of twenty Marks per annum Annuity granted by the Defendant to the Plaintiff Pro Consilio impenso impendendo The Defendant pleaded that before any arrerages incurred he required the Plaintiff to do him Service and he refused The Plaintiff by replication said that before the refusal such a day and place the Defendant discharged the Plaintiff of his Service c. And the opinion of the Court was that the Plea in Bar was not good for he ought to have shewed for what manner of Service to do the Plaintiff was so retained and for what kind of Service the Annuity was granted and then to have shewed specially what Service he required of the Plaintiff and what Service the Plaintiff refused Another matter was moved If the discharge shall be peremptory and an absolute discharge of the Service of the Plaintiff and of his attendance so that as afterwards the Defendant cannot require Service of the Plaintiff And by Walmesly Iustice it is a peremptory discharge of the Sevice for otherwise how can he be retained with another Master and so he should be out of every Service VVindham contrary For here the Plaintiff hath an Annuity for his life and therefore it is reason that he continue his Service for his life as long as the Annuity doth continue if he requirreth But where one is retained but for one or two years then once discharged is peremptory and absolute CCXCIII Matheson and Trots Case Mich. 31 32. Eliz. In the Common Bench. BEtwixt Matheson and Trot the Case was Sir Anthony Denny seised of certain Lands in and about the Town of Hertford 2 Len. 190. holden in Socage and of divers Mannors Lands and Tenements in other places holden in chief by Knights-service and having Issue two Sons Henry and Edward by his last Will in writing devised the Lands holden in Hertford to Edward Denny his younger Son in Fee Devises and died seised of all the Premisses Henry being then within age After Office was found without any mention of the said Devise the Queen seised the Body of the Heir and the possession of all the Lands whereof the said Sir Anothony died seised and leased the same to a stranger during the Minority of the Heir by force and colour of which Lease the Lessee entred into all the Premisses and did enjoy them according to the Demise And the Heir at his full age sued Livery of the whole and before any entry of the said Edward in the Land to him devised or any entry made by the said Henry the said Henry at London leased the said Lands by Deed indented to I.S. for years rendring Rent by colour of which the said I.S. entred and paid the Rent divers years to the said Henry And afterwards by casualty the said Henry walked over the Grounds demised by him in the company of the said I. S. without any special entry or claim there made I.S. assigned his Interest to I.D. who entred in the Premisses and paid the Rent to the said Henry who died and afterwards the Rent was paid to the Son and Heir of Henry
of her Dower of all his Lands and dyed and the said A. took to Husband the Defendant And that after betwixt the Plaintiff and Defendant colloquium quoddam habebatur c. upon which conference and communication the Defendant in consideration that the Plaintiff promised to pay to him the said one hundred pounds promised to make to him a discharge of the said one hundred pounds and also of the Dower of his Wife and shewed further that notwithstanding that the said Pett was ready and offered the said one hundred pounds and Dower also yet c. Vpon which there was a Demurrer in Law It was moved by Tan. that here is not any cause to have a prohibition for the agreement upon the communication is not any cause for it doth not appear that it was performed Coke A Prohibition lieth for the Wife cannot have both money and Dower for that was not the meaning of the Devisor and therefore it hath been holden that if a man deviseth a Term for years to his Wife in satisfaction and recompence of her Dower if she recovereth Dower she hath lost her Term Also here is modus and conventio which alters the Law scil mutual agreement So if the Parson and one of the Parishioners agree betwixt them that for forty shillings per annum he shall retain his Tithes for three years c. as it was in the Case betwixt Green and Pendleton c. it is good CCCXIX. Martingdall and Andrews Case Mich. 32 33. Eliz. In Banco Regis Action upon the case for Wast IN an Action upon the Case the Plaintiff declared that one Mildmay was seised of a House in A. and that he and all those whose estate c. time out of mind c. have had a way over certain Lands of the Defendants called C. pro quibusdam averiis suis and shewed that the said Mildmay enfeoffed him of the said House and that the Defendant stopt the said way to his damage c. And it was found for the Plaintiff and it was moved in Arrest of Iudgment that the title to the way is not certainly set forth i.e. pro quibusdam averiis suis quod omnes Justiciarii concesserunt But Gawdy Iustice conceived that the same was no cause to stay Iudgment For it appeareth to us that the Plaintiff hath cause of Action although that the matter be incertainly alleadged and of this incertainty the Defendant hath lost the advantage having surceased his time by pleading to it as 20 E. 3. Trespass for taking and carrying away of Charters the Defendant pleaded Not guilty and it was found for the Plaintiff to the damage c. And Error was brought because the Plaintiff had not set down in his Declaration the certainty of the Lands comprized in the Charters But non allocatur for the Defendant ought to have challenged that before and also 47 E. 3. 3. In a Writ of Covenant the Plaintiff declared of a Covenant by which the Defendant covenanted with the Plaintiff to assure to him all his Lands and Tenements which he had in the Counties of Gloucester and Lincoln and declared that at a certain day he required the Defendant to make him assurance of all the Lands c. And the Writ of Covenant was general quod teneat conventionem de omnibus terris quas habeat in c. And it was objected as here that the Writ wanted certainty as how many Acres or such a Mannor but non allocatur for here the Plaintiff is not to recover Land but only Damages and the Writ was awarded good Fenner Iustice the Cases are not like to the Case at Bar for in the said Cases the certainty is not needful but for the taxing of the Damages but here the certainty of the number of the Cattel is part of the title CCCXX Beale and Taylors Case Mich. 32 33 Eliz. In the Kings Bench. UPon Evidence to a Iury Leases 1 Cro. 222. it was holden by Gawdy and Clench Iustices that if a Lease for years be made and the Lessor covenants to repair during the Term if now the Lessor will not do it the Lessee himself may do it and pay himself by way of Retainer of so much out of the Rent which see 12 H. 8. 1. 14 H. 4. 316. Retainer of Rent A Lease for years by Indenture and the Lessor covenants to repair the Houses and afterwards the Lessor commands the Lessee to mend the Houses with the Rent who doth it accordingly and expends the Rent in the charges c. So 11 R. 2. Bar. 242. The Lessor covenants that the Lessee shall repair the Tenements when they are ruinous at the charge of the Lessor In debt for the Rent the Lessee pleaded that matter and that according to the Covenant he had repaired the Tenements being then ruinous with the Rent and demanded Iudgment if action Jones 242. Yelv. 43. c. and good Fenner Iustice contrary for each shall have action against the other if there be not an express Covenant to do it Quaere If the Lessor covenant to discharge the Land leased and the Lessee of all Rent-Charges issuing out of it If a Rent-charge be due if the Lessee may pay it out of his own Rent to the Lessor ad quod non fuit responsum CCCXXI. Offley and Saltingston and Paynes Case Mich. 32 33 Eliz. In the Kings Bench. OFfley and Saltingston late Sheriffs of London Escape 1 Cro. 237. brought an Action upon the Case against Payne because that he being in Execution under their custody for fifty three pounds in which he was condemned at the Suit of one Spicer made an escape the debt not satisfied by reason whereof they were compelled to pay the money The Defendant confessed all the matter but further pleaded that after the Escape Spicer had acknowledged satisfaction being after the Escape upon Record of the sum recovered upon which there was a Demurrer Owen Serjeant argued that the acknowleding of satisfaction being after the Escape was not any Plea for when the Plaintiffs Sheriffs have paid the money recovered there was no reason that Spicers acknowledging satisfaction should stop the Sheriffs of their Remedy against Payne It was holden by the Iustices that the Plaintiffs in this Action ought to shew that they had been impleaded by him who recovered for they cannot have this Action before they are sued For perhaps the Plaintiffs who recovered must be contented to hold themselves to the Defendant and to be satisfied by him It was said by Glanvil Serjeant that by the Escape the Debt was cast upon the Sheriffs and the Defendant discharged and that it was the Case of Sir Gervas Clyfton who being Sheriff suffered him who was in Execution and in his custody to go and see a Play and the same was adjudged an Escape and the party could not be in Execution again And then he said that this acknowledgment of satisfaction could not be any Bar to the
hoc that he was indebted to the Plaintiff antea vel post the said day aliquo modo upon which the Plaintiff did demur It was argued that the Traverse was not good for the consideration in Assumpsit is not traversable because it is but conveyance and amounts to the general Issue as in debt upon the sale of a Horse it is no Plea for the Defendant to say that no such Horse was sold to him Patridge If the conveyance be the ground of the Suit it is traversable an Action upon the Case against an Hostler it is a good Plea that he is not an Hostler 2 H. 4 7. See 26 H. 8. Br. Traverse 341. In an Action upon the Case the Plaintiff declared that whereas the Defendant habuit ex deliberatione of the Plaintiff certain goods the said Defendant in consideration of ten shillings Assumpsit eidem querenti promisit salvo Custodire c. Non habuit ex deliberatione is a good Plea. Godfrey The Defendant doth not answer the point of our Action which is the Assumpsit but only by way of Argument 11 E. 4. 4. In Trespass upon the Statute of 5 R. 2. by the Master of a Colledge and his confreers the Defendant doth justifie by reason of a Lease made by a Predecessor of the Plaintiff and his Confreers by their Deed under their Common Seal the Plaintiff Replicando saith That at the time of the making of the Lease there was no such Colledge and it was holden no Plea for it is no answer but by Argument Gawdy Iustice In all cases where the Defendant may wage his Law there the conveyance is traversable Wray The cause of the Action is the Assumpsit therefore the consideration is not traversable for it is not the point with which the Plaintiff is charged And it is common here that the Declaration in such Action upon the Case Traverse in consideration of divers sums of money without any more certainty is good which should not be good if the consideration were traversable but the consideration is to be given in Evidence and it is also common that in an Action upon the Case in Trover and Conversion the Trover is not traversable for the Conversion is the point of the Action Fenner Iustice The debt here is no cause of the Action but only the Assumpsit In debt upon Arbitrament the Arbitrament is traversable So in debt for Rent upon a Demise the Demise is traversable Antea 189. for the Arbitrament and Demise is the cause and ground of the Action At another day it was moved again and Gawdy mutata opinione said that consideration Executory is traversable As where one in consideration that he may marry my Daughter or of service promiseth to pay the same consideration is traversable contrary of a Consideration executed And afterwards Iudgment was given for the Plaintiff CCCXLI Estons Case Trin. 33 Eliz. In the Court of Wards ESton was seised of Lands in Fee holden of the King in chief 1 Cro. 243. and took a Wife seised of other Lands holden in Socage they have Inne and the Husband dieth and afterwards the Wife dieth Owen Serjeant conceived That the Queen should not have the Wardship of the Land of the Wife or the primer seisin of it And if the Husband had survived his Wife being Tenant by the Curtesie the Queen should not have Primer seisin of it after his decease Wray If the Father be seised of Lands holden in Soccage and the Mother of Lands holded in Knights service and the Husband over-lives his Wife being Tenant by the Curtesie the King shall have all Anderson denied that and he conceived That the opinion of Stamford is not Law and yet see 13 H. 4. 278. Where the Father is seised of Lands in chief and the Mother of other and the Father dieth and afterwards the Mother dieth both shall be in ward And it was said That if there be Grandfather Father and Son and the Father dieth seised of Lands holden in Socage and afterwards the Grandfather dieth seised of Lands in Knights service the Lands in Socage shall not be in ward Anderson held strongly That the Queen should have Primer seisin of the Lands of the Mother Wray contrary Quaere CCCXLII Ellis Hartops Case Trin. 33 Eliz. In the Court of Wards ELlis Hartop was seised of divers Lands whereof part was holden of the King in Knights service and devised two parts thereof to W. Denham and his Heirs to the use of T. his brother and his wife and afterwards to the use of the said T. and his Heirs males T. died in the life of the Devisor and afterwards a Son is born First it was agreed that a Devise might be to the use of another Then when Cesty que use dyeth in the life of the Devisor the Devisee shall take it and when a Son is born it shall go to him But if the use be void then the Devisee shall have it to his own use for every devise doth imply a consideration Coke was of opinion That the Son takes by descent when Cestuy que use to whom Land is devised doth refuse the use the Devisee cannot take it for he shall not have it to his own use for if the use be void the devise is also void And the use is void for Cestuy que use died in the life of the Devisor which see Bret and Rygdens case A man seised of three Acres bargains and sells one of them without shewing which and that before the Statute of 27 H. 8. The Bargainee dyeth before Election no Election descends to the Heir for then he should be a Purchasor And by Wray and Anderson The devise is void and it is all one with Brett and Rigdens case And by Anderson a man deviseth Lands to the use of one which use by possibility is good and by possibility not good If afterwards Cestuy que use cannot take the Devise shall be to the use of the Devisor and his Heirs CCCLXIII Weston and Garmons Case Trin. 33. Eliz. In the Kings Bench. Assize 1 Cro. 226. ASsize was brought of a Rent of fifty pounds per annum and the Plaintiff made his plaint to be disseised of his Free-hold in H. E. and H. W And shewed that John Vaughan and Amy his Wife who before was the wife of one Weston and Mother of Sir Henry Weston the Plaintiff in the Assize was seised of the said Manors of H.W. and H.E. lying in Barton and Kinton in Fee. And 18 Eliz. a Fine was levied betwixt Robert Vaughan and Miles Whitney Complainants and the said John Vaughan and Amy his Wife and Francis their Son Deforceants of the said two Manors inter alia per nomen of the Manors of H.E. and H.W. and of fifty Messuages three hundred Acres of Lands two hundred Acres of Meadow cum pertinentiis in the said Towns by which Fine the said Deforceants did acknowledge the right of the said Manors and Tenements to be
over the Feoffees do not pay the said mony within the said 15 days afterwards Curties attorns to the Feoffees It was moved if the Reversion of the Lands passed to Curties passeth by the Feoffment of the Manor without attornment which see Littleton 133 134. 2. Attornment If by the attornment of Curties after the 15 days the uses can rise to Bracebridge and his wife c. and it was said That the Case 20 H. 6. Avowry 11 12. If a Manor be granted for life the remainder over in Fee Tenant for life dieth if the Tenants attorn to him in the Remainder the same is good and if a Reversion be granted to two and one of them dieth attornment to the survivor is good and if a Reversion be granted to Husband and Wife in special tail the Wife dieth afterwards without issue Attornment to the Husband is good and if a Reversion be given in Frank-marriage and afterwards the Husband and Wife are divorced and afterwards the particular Tenant attorns to the Wife the same is good and by Manwood If a Man seised of a Manor the demesns of which extends into two Counties and hath issue a Son and a Daughter by one woman and a Son by another woman and dieth the eldest Son enters into the Demesns in one County only and takes the profit in one County only and dieth without issue the Daughter shall have and inherit the Demesns or Services whereof her Brother was seised and the Son of the half-blood the rest And by Manwood the attornment of Curties who was the first Lessee shall bind Moore the second Lessee for he ought to attorn against whom lieth the Quid juris clamat And if a Lease for years be made of a Manor and the Reversion of it be granted to another in fee if the Lessee for years attorneth it shall bind the Tenants of the Manor 18 E. 2. A man seised of a Manor in the right of his Wife leased parcel of it for years without his wife the Reversion thereof is not parcel of the Manor contrary if the Lease had been made by Husband and Wife And by Dyer if Tenant in tail of a Manor leaseth parcel for years and afterwards makes a Feoffment of the whole Manor and makes Livery in the Demesns not leased the Reversion of the Land leased doth not pass for by the Feoffment a wrong is done to the Lessor which the Law shall not further enlarge than appeareth by the Deed contrary in case of Tenant in fee of a Manor and that without Deed with Attornment And it was the Case of one Kellet 25 H. 8. Kellet was Cestuy que use before the Statute of 27 H. 8. of divers Lands by several Conveyances the use of some being raised upon Recovery of some upon Fine and of some upon Feoffment and he made a Feoffment of all these Lands by Deed with a Letter of Attorney to make Livery the Attorney entred into part of the Land and made Livery in the name of the whole and it was agreed by all the Iustices that the Lands passed notwithstanding in others possession i.e. other Feoffees And by Dyer If the Tenants of a Manor pay their Rents to the Disseisor they may refuse again to pay them and if a Lease be made for years the Remainder for life if the Lessor will grant over his Reversion the Lessee for years shall Attorn and his attornment shall bind him in the remainder for life and if a Lease be made to one for years the remainder over for life the remainder to the Lessee for years in Fee. Now if the Lessee for years grant all his interest c. there needs no attornment and if Grantee of a Rent in fee leaseth for life and afterwards grants the Reversion to another the Attornment of the Ter-tenant is not requisite but only of the Grantee for life It was also holden Relation That this Attornment by Curties two years after the Livery was sufficient for it shall have relation to the Livery to make it parcel of the Manor but not to punish the Lessee for waste done mean between the Livery and the Attornment but betwixt the Feoffor and the Feoffee it shall pass ab initio It was holden also That although the uses for it limited are determined by the default of payment within the 15 days yet the Feoffees shall take the Reversion by this Attornment to the second uses 2 Len. 222. and if I enfeoff one upon condition to enfeoff J.S. who refuseth now the Feoffee shall be seised to my use but if the condition were to give in tail contrary So here is a Limitation beyond the first use which shall not be defeated for want of Attornment to the first uses and here it was not the meaning of Bracebridge to have the Lands again upon breach of the condition in his former estate but according to the second use and Iudgment was given in the principal case according to the resolutions of the Iudges as aforesaid And it was said by Harper Iustice That if a Feoffment in Fee be made to J. S. upon condition that he shall grant to A. a Rent-charge who refuseth it J.S. shall be seised to his own use Antea 199. CCCLVI. 20 Eliz. In the Common Pleas. THe Case was this Lord and Tenant by service to pay every year such a quantity of Salt but since 10 H. 7. the Tenant hath always paid the money for Salt. The question was If the Lord might resort to the first service Seisin and if the money be Seisin of the Salt. And Manwood took this difference i.e. where the Lord takes a certain sum of money for the Salt the same is not any Seisin for the service is altered as at the first Socage Tenure was a work done by labor i.e. Plowing but now it is changed into certain Rent and the Lord cannot resort to have his Plowing and in Kent divers Tenants in ancient time have paid Barley for their Rent but the same afterward was paid in a certain sum of money so as now the Lord of Canterbury who is Lord of such Tenements cannot now demand his Barly c. but if the sum which hath been used to be paid be incertain one year so much according to the price of Salt then such a payment of money is a sufficient Seisin of the Salt. Quod fuit concessum per Curiam CCCLVII 20 Eliz. In the Common Pleas. IN Accompt brought by an Heir Copyholder for the profits of his Copyhold Lands taken during his Nonage the Defendant pleaded That by the Custom of the said Manor Accompt by the Heir of a Copyholder the Lord of the Manor might assign one to take the profits of a Copyhold descended to an Infant during his Nonage to the use of the Assignee without rendring an accompt and the same was holden to be a good Custom as a Rent granted to one and his Heirs Custom to cease during the
afterwards that this murder is dispunishable notwithstanding the Statute of 2 Ed. 6. CCCLXIV The Queen and Braybrooks Case Pasch 25 Eliz. In the Kings Bench. 3 Co. 1 2 c. THe Queen brought a Writ of Error against Braybrook The Case was this That King Ed. 4. was seised of the Manor of Marston and gave the same to Lionel Lord Norris and A.M. and the Heirs of the body of the Lord the Remainder to H. Norris in Tail L and A. entermarry L. suffered a common Recovery against himself only without naming the said A. Hen. Norris is attainted of high Treason by Act of Parliament and by the same Act all his Lands Tenements Hereditaments Rights Conditions c. the day of the Treason committed or ever after c. Hen. Norris is executed Lionel dieth without issue the Queen falsified the said Recovery for one moiety by Scire facias because Anne who was joint-tenant with Lionel was not named party to the said Recovery and afterwards the Queen granted to the Lord Norris Son of the said Hen. Norris Manerium suum de Merston omnia jura in eodem and now upon the said Recovery the Queen brought a Writ of Error and it was argued by Egerton the Queens Sollicitor that this right to a Writ of Error is such a right as is transferred to the Queen by the Act of Parliament for the words are omnia jura sua quaecunque and here is a right although not a present right yet a right although in futuro so it is a right of some quality as A. Tenant in Tail the Remainder in Tail to B.A. makes a Feoffment in Fee B. is attainted of high Treason and by such Act all his Lands c. given to the King. A. dieth without issue the Queen shall have a Formedon in the Remainder and although the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura in eodem yet by such general words a Writ of Error doth not pass which See 32 H. 8. Br. Patents 98. And also this Action rests in privity of record and cannot be displaced from thence but by Act of Parliament see Br. Chose in Action 14. 33 H. 8. for when the King will grant a thing in Action he ought in his Patent to recite all the circumstances of the matter as the Right and how it became a Right and because the Queen here doth not make mention of this Right as of the Entail the Recovery and the Attainder for that cause the Right doth not pass The Case betwixt Cromer and Cranmer 8 Eliz the Disseisee was attainted of Treason the Queen granted to the Heir of the Disseisee all the Right which came unto her by the Attainder of his Ancestor nothing passed Causa qua supra And always where the King grants any thing which he cannot grant but as King that such a grant without special words is to no purpose Coke contrary he agreed the Case put by Egerton for at the time of the Attainder B. had a Right of Remainder but in our Case Hen. Norris had not any Right but a possibility of a Right of Action i.e. a Writ of Error And he said that this Writ of Error is not forfeitable for it is an Action which rests in privity no more than a condition in gross as a Feoffment in Fee is made upon condition of the party of the Feoffor who is attainted ut supra This word Right in the Act of Attainder shall not transfer this Condition to the Queen and of the Act of Attainder to Hen. Norris it is to be conceived That the makers of the Act did not intend that by the word Right every right of any manner or quality whatsoever should pass to carry a Condition to the Queen and therefore we ought to conceive that the makers of the Act did not intend to touch Rights which rested in privity And as to the Grant of the Queen to the Lord Norris of the Mannor of Merston Et omnia jura sua in eodem he conceived that thereby the Right of the Writ of Error did pass for it is not like Cranmers Case but if in the said Case the Land it self had been set down in the Grant it had been good enough as that Cranmer being seised in Fee of the Manor of D. was there of disseised and so being disseised was attainted of high Treason now the Queen grants to his Heirs totum jus suum in his Manor of D c. and so in our Case the Queen hath granted to the Lord Norris Manerium suum de Merston omnia jura sua in eodem c. at another day it was moved by Plowden that this Right of Writ of Error was not transferred to the Queen by the Act but such Right might be saved to a stranger c. the words of the Act are omnia jura sua and this word sua is Pronomen possessionis by which it is to be conceived that no Right should pass but that which was a present Right as a Right in possession but this Right to a Writ of Error was not in Hen. Norris at the time of his Attainder but it was wholly in him against whom the erroneous Iudgment was had and therefore if in a Praecipe quod reddat the Tenant vouch and loseth and Iudgment is given and before Execution the Tenant is attainted by Act of Parliament by words ut supra and afterwards he is pardoned the Demandant sueth for Execution against the Tenant now notwithstanding this Attainder the Tenant may sue Execution against the Vouchee and afterwards Wray chief Iustice openly declared in Court the opinion of himself and all his companions Iustices and also of all the other Iustices to be That by this Act of Parliament by which all Lands Tenements Hereditaments and all Rights of any manner and quality whatsoever Henry Norris had the day of his Attainder or ever after Lionel then being alive and over-living the said Hen. Norris that this Writ of Error was not transferred to the Queen And that the said Act by the words aforesaid could not convey to the King this possibility of right for at the time of the Attainder the Right of the Writ of Error was in Lyonel and Hen. during the estate tail limited to Lyonell had not to do with the Land nor any matter concerning it And Iudgment was given accordingly And it was holden That he in the Reversion or Remainder upon an Estate tail might have a Writ of Error by the common Law upon a Recovery had against Tenant in tail in Reversion CCCLXV Mich. 25 26. Eliz. In the common Pleas. Copy-holder IN Trespass brought by a Copy-holder against the Lord for cutting down and carrying away his Trees c. It was found by special Verdict That the place where c. was Customary lands of the Plaintiffs holden of the Defendant and that the Trees whereof c. were Chery Trees de
case 39 Eliz. and Damports case 45 Eliz. And this Act of 13 Eliz. is general in respect of time for it extendeth to all time after from henceforth and to all persons to whom such Leases shall be made the words the Statute are scil To any person or persons in respect of persons who shall lease all spiritual persons General in respect of the end which is the maintenance of learning which extends to the common profit c. Drew Serjeant That this act of 13 Eliz is general in respect of restraint only and extends only to spiritual persons and therefore ought to be pleaded for otherwise the Court shall not take notice of it As the Statute of 23 H. 6. of Sheriffs ought to be pleaded which see in the Case of Dive and Manningham Plowden 64 65. Co. 1 Inst 45. And although the Statute ought to be pleaded Yet this Lease is not void against the Warden who made it but against his Successor although no rent be reserved upon it notwithstanding that the perclose of the Statute be utterly void and of none effect to all intents constructions and purposes So upon the Statute of 1 Eliz. concerning Leases made by Bishops the Law had been so taken in the case of the Bishop of Coventry and Lichfeild upon a Grant of the next Avoidance That although it doth not bind the Successors yet it shall bind the Grantor himself So here this Lease being made by the present Warden and Fellows of the Colledge aforesaid although it be not sufficient to bind the Successor yet it shall bind the Warden who made the Lease Puckering contrary And as to the case of 13 E. 4. 8. the reason there is because there is an Exception in the said Statute of divers Grants made by King H. 6. and therefore the said Act ought to be specially pleaded And see 34 H. 6. 34. by Prisoit But in this Act of 13 Eliz. there is not any Exception and although it be a general Act with a Restraint yet such an Act ought not to be pleaded and therefore 27 H. 8. 23. in an Action upon the Statute of 21 H. 8. for taking of Lands to Ferm by spiritual persons he need not make mention of the Statute And afterwards the Iustices did advise upon this point whether the Lease be so void that it be void against a stranger So as the Defendant who doth not claim under the Colledge and who hath no title to the Land may avoid it And Periam Iustice denied the Case put by Puckering A. morgages Lands to B. upon a usurious contract for one hundred pounds and before the day of payment B. is ousted by C. against whom B. brings an Action C. cannot plead the Statute of Vsury for he hath no title For the estate is void against the Mortgagor Another Exception was taken to the Declaration because the Plaintiff had declared upon a Lease by the Warden and Fellows without naming any name of the Warden 13 E. 4. 8. 18 E. 4. 8. In Trespass the Defendant doth justifie because that the Free-hold was in the Dean and Chapter and he as Servant and by their commandment entred And Exception was taken to that Plea because he hath not shewed the name of the Dean scil the proper name So if a Lease be made by Dean and Chapter in these words Nos Decan Capituli the same Lease is void which was granted by the Court and 12 H. 4251. A Provost granted an Annuity by the name of Provost of such a Colledge without any name of Baptism and afterwards the Grantee brought a Writ of Annuity against the Successor of the said Provost and by Hull The Writ is well enough but the Christian name ought to be set down in the Writ So here because that the name of Baptism of the Warden is not in the Declaration the same is not good But the opinion of the whole Court was That the Declaration is good enough and they did rely especially upon the Book of 21 E 4. 15 16. Where Debt is brought by the Dean and Chapter without any Christian name and the Writ holden good Anderson It stands with reason That for as much as the Colledge was incorporated by the name of Warden and Fellows and not by any Christian name that they may purchase and lease by such name without any Christian name and may be impleaded and implead others by such name and as the Fellows in such case need not to be named by their Christian names no more ought the Warden But of a Parson Vicar Chauntry Priest it is otherwise for in such case the name of Baptism ought to be added It was also objected That because the Letter of Attorney was to enter in the Manor and all the Lands and Tenements of the Colledge in such a Town and to seal the Indenture of Lease in the name of the Lessors and to deliver it to the Plaintiff as their Deed now the Attorney in executing of this Warrant hath not pursued it for he hath only entred into the Lands but it is not found that he entred into the Manor and so the Lease is void And it was said by Puckering That if I lease two Acres in two several Counties rendring for the one Acre 10 s. and for the other Acre 10 s. and make a Letter of Attorney to make Livery in both if the Attorney entreth into one Acre and makes Livery the same is void for the Attorney hath not pursued his authority for peradventure I would not have leased the Acre whereof Livery is made for such rent of 10 s. being perhaps of greater value but with the other Acre which was of lesser value and so the mis-executing of my warrant shall prejudice me Windham Perhaps if one entire Rent had been reserved out of both Acres it may be that by the Livery in one Acre all is void But by Puckering one entire Rent cannot be reserved upon such a Lease of two Acres in several Counties Walmesley denied the Case put by Puckering for the authority is executed well enough for it doth not appear upon the Verdict but that the Colledge was in possession at the time of the Lease made and then there needed not any such Entry but the bare sealing and delivery of the Attorney is good enough And also it doth not appear by Verdict That the Colledge hath any Manor and therefore it shall be so intended and then the Case is no other but that A man leaseth a Manor and certain Lands in D. and makes a Letter of Attorney to make Livery of them where he hath nothing in the Manor and the Attorney makes Livery of the Land without medling with the Manor the same is a good Livery and the authority duly executed But if it had been expresly found that the Colledge had such a Manor there then the Entry in the Land only without medling with the Manor and the Livery made accordingly should not be good But
197 p VVright and the Bishop of Norwiches case 218 p VVhisker and Cleytons Case 219 p VVard and Blunts case 251 p VVeston and Grendons case 255 p VVoodshaw and Fulmerstons case 262 p VVindham and Sir Edward Cleeres case 263 p VVickes and Dennis case 271 p VValgrave and Ogdens case 305 p VVard and Knights case 315 p VViseman and VVaringers case 339 p VVeston and Garnons case 343 p VVillis and Crosbies case 373 p VVilliams and Blowers case 402 p VValpoole and Kings case 407 p VViggot and Clarks case 419 p VVangford and Sectons case 423 p VVilmer and Oldfeilds case 424 p VVolman and Fies case 449 p VVillis and VVhitewoods case 454 p VVade and Presthalls case 466 p VVharton and Morleys case 467 p VValgrave and Agars case 469 p Z. ZOuch and Bamfeilds case 102 p REPORTS AND Cases of Law Argued and Adjudged in the Time of Queen Elizabeth From the twenty fourth to the three and thirtieth year of Her Reign I. Borneford and Packingtons Case Hill. 25. Eliz. in the Kings Bench. IN Trespas It was found by special verdict Custom of Free-Bench That the Defendant was seised of the Manor of B. whereof the place where is parcel demised and demiseable by Copy c. And that B. the Granfather of the Plaintiff was seised of the place where c. according to the custom of the said Manor in Fee-simple and that within the said Manor there is this Custom That if any Copy-holder dieth seised his Wife over-living him shall hold all the Land during her Widowhood as Free-bench and shall be admitted Tenant to the Lord 2 Brownl 21. and that the Heir shall not be admitted to it during the life of his Mother And found also another Custom within the said Manor That if any Copy-holder be convicted of Felony and the same be presented by the Homage that then the Lord might seize c. And it was further found that the Grandfather of the Plaintiff took a Wife and died seised having issue A. Father of the Plaintiff The Wife is admitted to her Free-bench A. is convicted of Felony and that is presented by the Homage and afterwards A. died after which the Wife died c. It was argued by Atkinson that A. is not within the danger of this Custom for during the life of his Mother who by a Claimer is Tenant to the Lord and admitted to it she is Copy-holder and it is not like to the Case lately adjudged of possessio fratris without admittance for there the party was admittable and so he was not here And also it appeareth by the Custom as it is found That the Lord upon such matter shall seize and therefore we ought to make construction that this Custom doth not extend to Cases where the Lord cannot seize but in the Case at Bar the Lord cannot seize by reason of this Free-bench And we ought not by any construction to extend a Custom beyond the words in which it is conceived but it shall be taken strictly and not be supplyed by Equity with a Custom in the place of a Seisure But notwithstanding all this afterwards Iudgment was given against the Plaintiff II. Hill. 25 Eliz. in the Kings Bench. A Copy-holder doth surrender to the use of one A. upon trust that he shall hold the said Land until he hath levyed certain monies and that afterwards he shall surrender to the use of B the monies are levyed A. is required to make surrender to the use of B. he refuseth B. exhibits a Bill to the Lord of the Mannor against the said A. who upon hearing of the Cause decrees against A. that he shall surrender he refuseth now the Lord may seize and admit B. to the Copy-hold for he in such Cases is Chancellor in his own Court per totam Curiam III. Wade and Bemboes Case Hill. 25. Eliz. in the Kings Bench. IN a Writ of Error by Wade against Bembo upon a Iudgment given in the Court of the City of Bristol the Case was That Bembo was Plaintiff in the said Court against Wade in an Action of Covenant and declared of a Covenant made by word by the Testator of Wade with Bembo and declared also that within the said City there is a Custom That Conventio ore tenus facta shall bind the Covenantor as strongly as if it were made by writing And it was holden by the Court that that Custom doth not warrant this Action for the Covenant binds by the Custom the Covenantor but doth not extend to his Executors and a Custom shall be taken strictly and therefore the Iudgment was reversed IV. The Lord Paget and Sir Walter Ashtons Case 25 Pasch 25. Eliz. in the Kings Bench THe Lord Paget brought an Action of Trespass against Sir Walter Ashton who justified because he is seised of three Messuages to him and his Heirs and that he and all those whose estate he hath c. have had the Woodwardship of the Forrest of C. within which the place where c. and also have had within the said Forrest Estovers without number And that one Rowland Bishop of Coventry and Lichfield was seised of the Forrest aforesaid in the right of his Church and by Indenture betwixt him and Sir Edw. Ashton his Ancestor whose Heir he is setting forth that divers debates had been betwixt the said parties concerning some profits within the said Forrest It was agreed betwixt them that the said Sir Ed. Ashton should release unto the said Rowland all his right in the said Office and Estovers and that the said Rowland shoud grant de novo unto the said Edw. and his Heirs the said Office and one hundred loads of Estovers per annum out of the said Forrest After which the said Ed. according to the said agreement did release to the said Bishop ut supra after which the said Bishop by Indenture reciting the said former Convenants in compl Indenturae praedict Convent did grant to the said Sir Ed. the said Office and Estovers pro easiamento dicti Edwardi haered suorum by assignment of the Officers of the said Forrest and if the assignment he not made within ten days after request that then the said Ed. and his Heirs should cut dow wood where they pleased and averred the things released were of as great value as the things granted And upon this matter the Plaintiff did demurr in Law and it was adjuded for the Plaintiff for here no Inheritance in the things granted passed to the said Sir Ed. but only an Interest for his own life 1. Inst 148. a. 398. b. ib. Dy. 253. 1 Cro. 644. for the grant was to Sir Ed. only without the word Heirs and the reference to the Indentures by which the Bishop hath covenanted to grant the Inheritance nor the words in the grant imply an estate in Fee s. pro easimento dict Ed. haered suorum and that in default of Assignment it should be lawful for Sir Ed. and his Heirs
shall not supply the defect of the words in the grant V. Gilbert and Sir George Harts Case Mich. 25 and 26 Eliz. in the Kings Bench. GIlbert brought Debt upon Escape against Sir George Hart Sheriff of Kent and declared Escape 1. Cro. 188. 271. That he recovered a certain debt against A. who was taken in Execution c. And the Case was That the said A. was taken in Execution in the time of the old Sheriff and escaped also then and afterwards the Defendant being Sheriff the Plaintiff again sued a Scire facias against the said A. upon the Iudgment aforesaid upon which Execution was awarded by default and thereupon issued a Capias ad satisfaciendum by which A. was taken and escaped And by the opinion of all the Iustices the Defendant in this Case shall be charged for notwithstanding that A. was once in Execution which was determined by escape in the time of the old Sheriff yet when Execution was now awarded against him upon his default in the Scire facias the same shall bind the Sheriff out of whose custody he escaped VI. Moor and Farrands Case Mich. 25 and 26 Eliz. in the Common Pleas. MOore leased Lands to Farrand upon condition that he 1. Cro. 26. Condition where shall not bind Administrators 1. Anders 123. Dy. 6. 1 Cro. 26. 757 3. Len. 67. his Executors or Assigns should not alien without the leave of the lessor Farrand died intestate his Wife took Letters of Administration and aliened without leave and by Periam Iustice she is not within the penalty of the Condition for the Administrator is not meerly in by the party but by the Ordinary And by Meade and Periam If a Lease for years upon such a Condition be extended upon a Recognisance the same is not an alienation against the Condition But if feme lessee for years upon such Condition taketh a Husband and dieth the Husband is within the danger of the Condition for he is Assignee If the King grant to a Subject bona catalla felonum and the lessor for years upon such a Condition be out-lawed upon which the Patentee enters Now by Periam the Patentee is not bound by the Condition Meade contrary for the Condition shall go with the Land. VII Maynyes Case Mich. 25 and 26 Eliz. in the Exechequer MAyney seised of Lands in Fee took a Wife Co. 1. Inst 41. â— made a Feoffment to a stranger committeth Treason and thereof is attainted and hath a Charter of Pardon and dieth It was moved by Plowden in the Exchequer if the Wife of Mayney shall have Dower against the Feoffee Dower Manwood Chief Baron by reason of this Attainder Dower cannot accrue to the Wife for her title begins by the Enter-marriage and ought to continue and be consummated by the death of the Husband which cannot be in this Case for the Attainder of the Husband hath interrupted it as in the Case of Elopement Attainder where an Estoppel And this Attainder is an universal Estoppel and doth not run in privity only betwixt the Wife and him to whom the Escheat belongs but every stranger may bar her of her Dower by reason thereof for by the Attainder of her Husband the Wife is disabled to demand Dower as well as to demand his Inheritance and he cited the Resolution of all the Iustices of England in the Case of the Lady Gates 4. Ma. Dyer 140. and the Pardon doth not help the matter for the same extends but to the life of the Offender but doth not take away the Attainder by which she is barred to demand Dower during the said Attainder in force See the Statute of 5. E 6. cap. 11. Vid. Fitz. Dower 82. 13. E 3. 8 E 3. Dower 106 Fitz. Utlag 49. 8 Mich. 25 and 26 Eliz. in the Exchequer 4. Len. 117. Leases for three lives of Copy-hold estate are not within Stat. 41. Eliz. IN the Exchequer it was found by special verdict That the Guardians and Chanons Regular of Otlery were seised of the Mannor of O c. and that 22 H 7. at a Court holden there granted the Lands in question to W. and W. his Son for their lives by Copy according to the Custom of the said Mannor and that afterwards 30 H 8. They leased the Lands by Indenture to H. rendering the ancient and accustomed Rent and afterward surrendred their Colledge c. and afterward W. and W. dyed And if that Lease so made during the customary estate for life notwithstanding the Statute of 31 H 8. be good or not was the Question being within a year before the surrender c. It was argued by Egerton Sollicitor that the said Lease is void by the Statute the words of which are whereof or in the which any estate or interest for term of life year or years at the time of the making of any such Lease had his being or continuance and was not then determined finished or expired and therefore we are to see if that right or possession which W. had at the time of the making of the Lease were an interest or an estate for life And as to this word estate it is nothing else than measure of time for an estate in Fee-simple is as much as to say an interest in the Lands for ever and the like of other estates and therefore here W. and W. had at the time of the making of this Lease an estate for life in the thing demised And although such customary Tenants are termed in Law Tenants at will yet they are not simply so nor meerly Tenants at will but only Tenants at will secundum Consuetudinem Manerii Copy-holdeâ—â— Interest which Custom warrants his possession here for his life and therefore it is a more certain estate than an estate at will for the Copyholder may justifie against his Lord so cannot a Tenant at will whose estate is determined at the will and pleasure of his Lessor And although this estate is but by Custom and by no Conveyance the estate is raised it is as material so as it be an estate and this estate being supported by Custom is known in Law an estate and so accounted in Law and the Law hath notably distinguished Copy-hold Tenancies by Custom and Tenancies at will by the Common Law for a Copy-holder shall do Fealty shall have aid of his Lord in an Action of Trespass shall have and maintain an Action of Trespass against his Lord his Wife shall be indowed the Husband shall be Tenant by the Curtesie without new admittance and it was adjudged in the Common Pleas 8. Eliz. That if a Copy-holder surrender to the use of another for years the Lessee dieth his Executors shall have the residue of the Term without any admittance M 14. and 15. Eliz. a Copy-holder made a Lease for years by Indenture warranted by the Custom it was adjudged that the Lessees should maintain Ejectione firm although it was objected that if it were so then if
the Plaintiff doth recover Post 16 2 Len. 119. he should have Habere facias possessionem and then Copyholds should be ordered by the Laws of the Land 10 Eliz. Lord and Copy-holder for life the Lord grants a Rent-charge out of the Mannor whereof the Copy-hold is parcel the Copy-holder surrenders to the use of A. who is admitted accordingly he shall not hold it charged but if the Copy-holder dieth so that his estate is determined and the Lord granteth to a stranger de novo to hold the said Lands by Copy this new Tenant shall hold the Land charged and so was it rated and adjudged in the Common Pleas. It was adjorned IX The Lord Paget and the Bishop of Coventry and Leichfields Case Mich. 25. 26 Eliz. in the Kings Bench. THE Bishop of Coventry and Leichfield was endicted of Trespass in the County of Srafford Endictment of breaking and entring of the Close of Thomas Lord Paget called the Vineyard Challenge the Bishop traversed the Endictment and at the day of appearance of the Iury the Bishop challenged the Array because that he being a Peer of Parliament no Knight was returned c. Vpon which challenge the Queens Counsel did demur in Law but at last for expedition c. the Court delivered to the Councel of the Bishop a Bill sealed to save him the advantage of the said challenge And the Enquest was taken de bene esse who found that one A. by the Commandment of the Bishop entred into the said Close called the Vineyard being then in the occupation of one B. at will of the said Lord Paget and did the Trespass viz. digged a Turff there and there left it and so departed The matter of challenge was many times argued and it was argued against the said challenge because that the King is party against whom no Lord of Parliament shall have such Prerogative To which it was answered on the other side that so much the rather the challenge lyeth in the Case for where a Peer of the Parliament is to be tryed upon an Endictment of Treason or Felony it shall be per pares if upon appeal of Murder or Felony by ordinary tryal See 33. H. 8. Br. Tryal 42 and Br. Enquest 49. It was said on the Plantiffs side that here the Bishop is quodam modo and the Venire facias issued at his own Sute and therfore the mismaking of the Pannell is his own fault But by Gaudy Iustice the Venire facias in this Case is reputed in Law the Sute of the Queen notwithstanding that the parry endicted for his expedition doth pay the Fees for the Process for that the Clarks of the Court have encroached for their gain for otherwise there should be none paid by the Queen and by the better opinion of the Court the challenge was holden good Another matter was moved because the Endictment is clausum Domini Paget and it appeareth by the Verdict that the said close at the time of the Trespass was in the occupation of B. at the will of the Lord Paget for the Lord Paget cannot have an Action of Trespass against the said Bishop or the said A. upon the matter and by Wray the Lord Paget cannot have Trespass Quare clausum fregit intravit upon this matter but for digging upon the Land demised or cutting of Trees an Action lyeth 19 H. 6. Tit. Trespass 36. But here the Endictment is that one F. entred by the commandment of the Bishop upon which matter no Action lyeth against the Bishop by the Lord Paget and especially in this case where the said A. did not carry away the said Turff from thence But by Wray notwithstanding that the Action of Trespass doth not lye for the Lessor yet it is well enough by way of Endictment Another exception was taken to the Endictment because it is alleadged 2 Len. 183. that A. by Commandment of the Bishop entred and did the Trespass and no place is shewed where the commandment was and for this cause the Bishop was discharged X. Stonley and Bracebridges Case Mich. 25 26 Eliz. in the Kings Bench. IN Ejectione firmae by Stonley against Bracebridge the case was Pâ—o. Com. 417. 418. Thomas Bracebridge Father of the Defendant was seised of the Mannor of Kingsbury to him and to the heirs males of his body and 32 H. 8. Leased a Field called Stalling parcell of the said Mannor to Tho. Coke for years and afterwards 4 E. 6. Leased the said Field the first Lease being in esse to Sir Geo. Griffith for seventy years who assigned the same to A. Bracebridge Brother of the Lessor and to Joyce Wife of the Lessor and afterwards 5 E 6. the said Tho. Bracebridge the Lessor by his Deed Indented gave the said Mannor to the said Sir George by these words dedi concessi barganizavi vendidi Proviso and upon condition That the said Sir George should pay to the said Thomas Bracebridge within fifteen days after ten hundred pounds and if he fail of payment thereof that then after the said fifteen days the said Sir George should be seised of a Tenement parcel of the said Mannor of the yearly value of three pounds now of sate in the occupation of Thomas Smith to the use of the said Thomas Bracebridge for his life and after to the said Sir George until he had levyed five hundred pounds for the payment of the debts and the education of the children of the said Thomas Bracebridge and after to the use of the Defendant in tail And of the residue of the said Mannor to the use of the said Tho. Bracebridge and of the said Joyce his Wife for their lives c. Tho. Bracebridge made livery to the said Sir George in one place parcel of the said Mannor which was in his own occupation in the name of the whole Mannor the fifteen days incur without payment of the said ten hundred pounds the Indenture is enroled Coke attorns Joyce dyes Tho. Bracebridge grants the Lands to a stranger by Fine and before Proclamations Thomas his Son and Heir apparent within age enters in the name of the Feoffees by reason of the forfeiture Proclamations are made Tho. Bracebridge the Father dyeth the Term of Coke expireth A. enters and leaseth to the Plantiff who enters upon whom Tho. Bracebridge the Son enters upon which Entry the Action is brought it was argued by Beamount the elder Although here in the Indenture of bargain and sale there is not an express consideration set down in the common form of a consideration yet because the consideration is implied in the condition it is good enough see the Proviso and condition ut supra that the said Sir George should pay c. As if I bargain and sell to you my Land Proviso that you pay to me for the same at such a day one hundred pounds that consideration set down in the form of a condition is as effectual as if it had been
Lands within the said Town every second year left their Lands to lye fresh and untilled and prescribed further that the Tenants of the Lands within the said Town might erect Herdals in in their Lands with the Licence of the Lord of the said Manor and not otherwise and further declared that the said Bedingfield had let to him the said Manor and that the Defendant had erected Herdals upon his Lands without Licence so as the profit of his Foldage is impaired by it And all this matter was found by Verdict And it was objected in stay of Iudgment that the prescription is not good for it is against Law and common right to abridge the Subject of the profits of his Lands But the whole Court was clear of opinion that the prescription is good enough as 15 E 2. Prescription 51. Prescription to have common appendant in other Land afte that the Hay is cut and v E. 1. Prescription 55. A. seised of Lands may Plow it and Sow it and cut and carry away the Corn and afterwards when the Corn is carried B. by prescription may have the said Land as his several and the other who sowed it cannot meddle with that land but to plow and sow it in season c. And the Cattel cannot eat and pasture in the Land when they come to plow or sow it or to carry it away nor have any profit but the Corn and yet the Free-hold of the Land is in such person c. and that was holden a good Prescription and a difference was taken by the Court where one doth prescribe to take away the whole interest of the Owner of the Land and where a particular profit is restrained And here this prescription doth not extend but to restrain the Ter-tenant to erect Herdals which is a reasonable prescription See 1 H 7 24. The Lord of the Town doth prescribe to have free Foldage of the Beasts of his Tenants in D. and see there that libera Falda is not any other but to hav the Beasts of the Tenants to manure the lands of the Lord c. And afterwards Punsany the Plaintiff had Iudgment to recover XVI Mich. 25 26 Eliz. at Serjeants Inn. IN the Dutchy Chamber the case was that King E 6. leased for years certain lands parcel of his Dutchy of Lancaster rendring rent with clause of re-entry and that a lease was made to one Bunny It was found by Office that the Rent was arrear and by another Office that the Servant of the said Lessee had tendred the rent in his absence and by the commandment of his Master and that afterwards one I. S. Receiver General of the Dutchy received the said Rent and had accounted for it and upon his account it was allowed And this matter was opened at Serjeants Inn in Fleet-street before Wray Anderson Manwood Clench Rhodes Plowden and Stanhop and it was argued by Shuttleworth that in this case of rent reserved upon a Lease for years made by the King of Dutchy-Land The King not bound to demand Rent the King is not bound to demand it but he may for default of payment of it re-enter without demand and that the Lessee is tied to tender it at his peril as well as if the Queen had been seised of the said land in the right of her Crown and as to that payment the Statute of 1 H 4. is to be considered by which it is enacted that the possessions of the said Dutchy Taliter tali modo per tales officiarios ministros in omnibus remaneant deducantur gubernentur sicut remanere deduci gubernari debuissent si ad culmen Regis Dignitatis assumpti non fuissemus and these words ought to be intended of things which concern the Lands themselves but this Act of demand is a personal thing and concerns the person of the King and toucheth the Majesty and dignity of the King and in all cases of the Dutchy the person of the King shall hold his priviledge notwithstanding that the possession of the Land be carried in the course of a private person And therefore if the Queen will alien Lands parcel of her Dutchy she ought to make Livery for now she meddles with the possession it self but if the Queen will sue for parcel of her Dutchy non omittas shall be in the Writ for she cannot sue but as Queen and the Queen hath such Prerogative that none shall execute her Writs at her own sute but the Officer of the Crown 21 E 4. 60. for Livery if it be not Land within the County Palatine and for the residue See 10 H. 4. 7. 3. Eliz. 216 217. Plowden Lessee for years of Lands of the Dutchy shall have aid of the King before Issue joyned c. And if the King make a Feoffment of Lands of his Dutchy out of the County Palatine to hold of him in Capite the Feoffee shall hold it so and a Feoffment of such Lands upon condition that the Feoffee shall not alien is a good condition and Lapses shall not bind the Queen in case of an Advowson which the Queen hath in the right of the Dutchy and if the Villain of the Queen in the right of the Dutchy purchaseth Lands in Fee and aliens yet the Queen shall seise and that hath been adjudged in the Exchequer Chamber and if the Queen make a Lease of such Land and afterwards makes another Lease of the same Land without recital of the first Lease it hath been adjudged that the second Lease is void It was argued contrary by Beamount the younger that this condition which goeth to the realty to reduce the Land again ought to be ordered and governed by the Queen as it ought to be by a Subject and therefore if the Queen will take advantage of this condition she ought to make a Letter of Attorney under the Dutchy Seal to her own Officer authorizing him thereby to make demand of the said Rent c. And by Shuttleworth here be two Offices the one contrary to the other the best shall be taken for the Queen 14 E 4. 5. in Skreens Case in the end of it And if the Rent of the Kings Farmor be behind now although that after the Receivor of the Dutchy doth receive it yet the same doth not purge the forfeiture as if the Bayliffs of a Manor receive rent of a new Feoffee the same will not change the Avowry of the Lord without notice given to him 41 E 3. 26. And if a Copy-hold escheat the Steward without a special Warrant cannot grant it over de novo XVI Rearsbie and Rearsbies Case Intrat Trinit 25 Eliz. rot 746. Mich. 25 and 26 Eliz. in the Kings Bench. REplevin by W. Rearsbie against A. Rearsbie and L. Rearsbie who avow the distress because that one W. Vavasour was seised of the Manor of Deniby whereof the place where c. is parcel in his Demesne as of Fee and so seised gave the said Manor to
hold the Land discharged of the Copy-hold for her life and he put this case If the Lord of such a Manor taketh a Wife a Copy-holder for life dieth the Lord grants a Rent-charge out of the customary land and afterwards grants the said land by copy for life dieth the wife shall hold the land discharged of the Rent but the Copy-holder shall be charged and he put a difference where the Lord grants such Copy-hold in possession and where in Reversion for in the first case the Wife shall hold charged but contrary in the last And he cited the Case of one Slowman who being Lord of a Manor ut supra by his Will devised that his Executors should grant estates by Copy 2. Len 109. and died having a Wife the Executors make estates accordingly Dower discharged of a grant of Copy-hold the Wife in case of Dower shall avoid them Plowden contr the Lord of such a Mannor is bound by recognisance and afterwards a Copy-holder for life of the said Mannor dieth the Lord grants his Copy-hold de novo the said new Grantee shall hold his Copy-hold discharged of the Recognisance which Gawdy Iustice granted and by Wray if the Lord of such a Manor grants a Copy-hold for three lives takes a Wife the three lives end the Lord enters and keeps the lands for a time and afterwards grants them over again by copy and dieth the copy-holder shall hold the Land discharged of the Dower and this is a clear case for the copy-holder is in by the custom which is paramount the title of Dower and the Seisin of the Husband and by him in the case of the Earl of Northumberland 17 Eliz. Dyer 344. That the grant of a copy-hold in Reversion by the Earl of Northumberland doth not make such an impediment as was intended in the condition there for it is by the custom and not by the act of the party And afterwards the same Term Iudgment was given for the Plaintiff that he and his Lessor should hold the lands discharged of the Dower XX. Fringe and Lewes Case Pasch 26 Eliz. In the Kings Bench. DEbt by Fringe against Lewes upon a Bond who pleaded Debt that the condition was that whereas the Defendant was Executor to one Morris Degle that if the Defendant should perform observe fulfil and keep the Will of the said Morris Degle in all points and Articles according to the true intent and meaning thereof that then c. and pleaded further that the said Morris by the said Will bequeathed to the Poor of such a Town ten pounds to be distributed amongst them and also to the Church-wardens of the Parish ten pounds and to I S. three pounds and that he had distributed the said ten pounds to the Poor and that he had paid the ten pounds to the Church-wardens and as to three pounds Uncore priâ—â— a good Plea. he said that he is and always was ready to pay the same to the said I. S. if he had demanded it upon which there was a demurrer And as to the ten pounds to be distributed amongst the Poor the same was holden good enough without shewing the names of the Poor amongst whom the mony was distributed so the pleading of the first payment to the Church-wardens was sufficient without nameing of them See 42 E 3. brief 539. Scire facias out of a Recovery against Executors and the Writ was challenged because it was Scire facias Executors not naming their proper names It was holden to be no exception for Executors are as a corporation known in that they are Executors and as to the third part of the Plea scil always ready and yet is the plea is well enough for this Obligation the Condition of which being general to perform the Will c. Poph. 10â— hath not altered the nature of the payment of the Legacy but the same remains payable in such manner as before upon request and not at the peril of the Defendant See 22 H 6. 57 58. 11 E 4 10. 6 E 6. Br. Tender 60. And afterwards the same Term the Court was clear of opinion and so delivered the Law to the Counsel on both sides that in this case the Legacies are to be paid upon request and not at the peril of the Executors in such manner as they were before the Obligation and afterwards Iudgment was given against the Plaintiff XXI Sir John Smith and Peazes Case Pasch 26 Eliz. In the Kings Bench. SIr John Smith brought Debt upon an Obligation against Peaze who pleaded that the Bond was upon condition to perform covenants contained in an Indenture and shewed what and that he had performed them the Plantiff assigned the breach of one covenant that where the Plaintiff had leased to the Defendant for years certain messuages by the same Indenture the Defendant by the same Indenture did covenant to repair all the said Messuages Covenant alia quam quae appunctuatae forent divelli per script dicti Johannis Smith and shewed further that the Defendant had not repaired the said Messuages to him demised as aforesaid and averred that the said house in which the breach of the covenant is assigned non fuit durante termino praedicto appunctuata divelli and upon that matter of reparation they were at Issue and found for the Plaintiff It was moved in Arrest of Iudgment that the Averment in the Replication was not sufficient for the Lease was made in November to begin the Michael after Averment and it might be that the Messuage in the not repairing of which the breach of the covenant is assigned was appointed to be pulled down scil divelli before the Term for years began and then the Defendant is not bound to repair it and then the breach of the covenant is not well assigned and so the Averment doth not answer the exception and because this clause alia quam is in the body of the Covenant it ought to be satisfied by him who pleads it scil by him who assigns the breach in the Covenant in which the exception is contained As by the Lord Dyer in his argument in the argument of Stowels Case reported by Plowden 376. Where a man pleaded the Feoffment of Cestuy que use he ought to plead that Cestuy que use at the time of the Feoffment was of full age sanae memoriae c. for that is within the purview contr upon the Statute of 4 H. 7. in pleading of a Fine for that is in a clause by it self which conceit of Plowden the Lord Wray denyed to be Law for he said he that pleads the Feoffment of Cestuy que use or a Fine according to the Statute of 4 H. 7. shall not be driven to shew that the Feoffor or Conusor at the time of the Feoffment or Fine levyed was of full age c. but he who comes in by such Fine 〈◊〉 21 or Feoffment shall shew the same for his own advantage And
at last after many motions it was resolved by all the Iustices Averment â—here superâ—luous that the Averment aforesaid was superfluous ex abundanti for it had been sufficient for the Plaintiff to have assigned the breach of the Covenant in the not repairing the Messuage without any Averment de non appunctuando and if the house in the not repairing of which the breach of Covenant is assigned was appointed to be pulled down the same shall come in on the defendants part to whose advantage it trencheth for such appointment doth discharge the Covenant as to that In the same plea it was moved in stay of Iudgment that one Sharp Solicitor of the said Sir John in the said suit had given eight shillings to the Iurors mean betwixt the Charge and their Verdict and that matter was testified by the oaths of two men upon which the Court examined the said Sharp who upon his oath denied the matter and also the Foreman of the Iury to whom the mony was supposed to be given who upon his oath denied the same And it was moved if receipt of mony by any of the Iurors should make the Verdict void and by Wray it shall not for it is but a Misdemeanor which is punishable on the person of him who takes the mony But Gawdy and Ayliff Iustices the Verdict is void See 24 E 3. 24. 14 H. 7. 1. 20 H. 7. 30. And for that cause the Iudgment was reversed XXII Cordall and Gibbons Case Pasch 26. Eliz. Intr. Trin. 25. Eliz. Rot. 492. In the Kings Bench. IN an Ejectione firmae upon not guilty pleaded the Iury found the special matter viz. that one Hierom Heydon was seised of two Messuages whereof the Action is brought and came to Cordall the Plaintiff and prayed him to send him ten pounds Cordall asked him what assureance he would give him for the re-payment of it he answered that he would mortgage to him the said two Messuages whereupon Cordall lent him the mony and afterwards they both went to the said two Houses and being before the doors of them Heydon called Tenants at will of the Houses and said to them Sirs I have borrowed of this Cordall ten pounds upon these Houses and if I pay this mony at Michaelmas next I must have my Houses again and if not then I bargain and sell these Houses to Cordall and my Will is that you become his Tenants after which Heydon put the said Cordall into the Houses and seeing him in the Houses he put in the Keys of the said Cordall by the Windows c. And it was adjudged by the whole Court that this conveyance by word of mouth was good enough to pass the estate ut supra and the words of bargain and sale in this Case are as strong as of gift and grant See 38 E 3. 11. 43 E 3. 11. 27 E 3. 62. 28 E 3. 11. XXIII Richards and Bartlets Case Pasch 26 Eliz. Intr. Mich. 25 26 Eliz. Rot. 72. In the Kings Bench. DOrothy Richards Executrix of A. her former Husband Assumpsit brought an Action upon the Case upon a promise against Humfrey Bartlet and declared that in consideration of two weighs of Corn delivered by the Testator to the Defendant he did promise to pay to the Plaintiff ten pounds to which the Defendant said that after the Assumpsit the Plaintiff in consideration that the said two weighs were drowned by Tempest and in consideration that the Defendant would pay to the Plaintiff for every twenty shillings of the said ten pounds three shillings four pence scil in toto thirty three shillings four pence did discharge the said Defendant of the said promise and averred further that he hath been always ready to pay the said sum newly agreed upon which there was a demurrer And the opinion of the whole Court was clearly with the Plaintiff first because that here his not any consideration set forth in the Bar by reason whereof the Plaintiff should discharge the defendant of this matter for no profit but damage comes to the Plaintiff by this new agreement and the Defendant is not put to any labour or charge by it therefore here is not any agreement to bind the Plaintiff See 19 H. 6. Accord 1. 9 E. 4. 13. 12 H. 7. 15. See also Onlies Case 19 Eliz. Dyer then admitting that the agreement had been sufficient yet because it is not executed it is not any Bar And afterwards Iudgment was given for the Plaintiff XXIV Lendall and Pinfolds Case Pasch 26 Eliz. In the Kings Bench. IN Trespass for breaking of his Close by Lendal against Pinfold Trespass the Case was that two brake the Close and entred and did the Trespass the Owner of the land brought an Action of Trespass against one of them and had Iudgment and execution accordingly and afterwards brought Trespass against the other Bar. 1 Cro. 667. 2 Cro. 73. 1 Cro. 30. 31. and declared upon the same Trespass And by Ayliff Iustice it is a good Bar and he likened it to the case of one Cobham who brought an Action of Trespass of Assault and Battery and recovered and had execution and afterwards brought an Appeal of Mayhem against the same person upon the same matter the said Recovery and execution is a good Bar c. so here as to the breaking of the close but not as to the Entry But by Wray it is a good Bar for the whole and he likened it to the case of Littleton Pl. 376. A Release to one of the Trespassers shall discharge both Gawdy agreed in opinion with Ayliff XXV Kempe and Hollingbrooks Case Pasch 26 Eliz. In the Exchequer IN an Ejectione firmae for Tythes the case was upon the Statute of 18. Eliz. Cap. 6. By which it is enacted that no Masters Tithea and Fellows of any Colledge in Cambridge or Oxford shall make any Lease for life or years of any Farm or of any their Lands Tenements or other Hereditaments to the which any Tythes arable Land Meadow or Pasture doth or shall appertain unless the third part at least of the accient Rent be reserved and payed in Corn for the said Colledges c. otherwise every Lease without such Reservation shall be void c. If now the said Statute shall be construed to extend to Leases of such extraordinary pecuniary Tithes which are not natural or paid in kind It was argued that the said Statute is to be intended of Tithes in kind and also of such things to be demised which render Corn Hay c. But the Tithes in London which is the thing demised in our case doth not render any such thing Tithes in London but only mony according to the decree made for payment of Tithes in London in the time of E. 6. And although the words of the Statute be other Hereditaments to the which any Tithes c. Yet the said Statute doth extend to Tithes in gross but they ought to be
such Tithes which are of such nature as Tithe-corn and Tith-hay And Manwood chief Baron held clearly that the Lease of these Tithes is good enough notwithstanding the defect by the special Reservation which is limited and appointed by the Statute and so by him a Lease of a House Rent Mill Ferry c. are out of the said Statute And as to the Tithes notwithstanding the words of the Statute are general any Tithes yet he conceived the Statute ought to be intended of Tithes of common Right and not of such customary Tithes as those of London are and therefore if all the Parishoners prescribe in modo Decimandi scil to pay a certain sum of mony for all manner of Tithes upon demise of such a Rectory such special Reservation is not necessary for these are Tithes against common Right and no Tithes are within the purview of the said Statute but those which are annual and therefore a Lease of Tithe-wood is out of the meaning of this Statute for non renovantur in annum and he said that upon a Lease of the Tithes of Chery Trees a rent ought to be reserved according to the Statute and the Farmer may bring his Cheries to the Market and buy Corn. Shute Iustice contrary for the words of the Statute are general And note that this Lease was of the Rectory of Saint Lawrence in the City of London There was another matter moved in this case because the lease whereof the Action is brought was made by the name of Master or Guardian and the Fellows whereas the true name of their Colledge is Master and Fellows Misnosmer And it was argued by Atkinson that the same is not such a Misnosmer which makes the Lease void for sive custos are words of surplusage v. 7 H. 6. 13. And also the case of the Cooks 20 Eliz. Plow 531. The Corporation was by the name of Masters or Governors and Comonalty mysterii coquorum c. And they made a conveyance by the name of Masters or Governors and Comunalty artis sive Mysterii c. the same is no such Misnosmer as shall make void the conveyance for Art and Mistery are both of one sense XXVI Harvey and Harveys Case Pasch 26 Eliz. In the Kings Bench. Consultation CLare Harvey one of the Daughters of Sir James Harvy Alderman of London Libelled in the Spiritual Court against Sebastin Harvy Son and Executor of the said Sir James for a Legacy bequeathed to her by her Father Sebastian did not appear for which he was excommunicated and taken by a Writ of excommunicat capiendo and imprisoned and afterwards he came into this Court and surmised to the Court That the said Sir James in his life had given to the said Sebastian all his Goods and Chattells and was also bound unto the said Sebastian in a Statute-staple of two thousand pounds whereupon he had prohibition and now the Plaintiffs counsel prayed a Consultation quatenus non agitur ad validitatem facti aut Statuti And Egerton Solicitor of Counsel with the Plaintiff cited a Iudgment given in the like Case betwixt Lodge and Luddington where such a special Consultation was granted But Wray put a difference betwixt the said Case and the Case at Bar for here in this Case is a gift by the Testator himself but in the Case cited the gift was by the Executor and also here is a Statute of two thousand pounds in which Case the Obligations which could not pass by the deed shalll be subject to the said Statute XXVII The Duke of Northumberlands Case Trin. 26 Eliz. In the Exchequer THe late Duke of Northumberland seised of five Messuages in the Parish of St. Sepulchres London in the Tenure of W. Gardiner Bargain and sale 3 Co. 9. by deed intented and enrolled for money bargained and sold to I. L. all his Tenements situate in the Parish of St. Andrews in Holborn in the Tenure of W. Gardiner to have to the said I. L. for life the remainder to K. his Daughter in Fee. Atkinson The bargain and sale is void by reason of the Misnosmer of the Parish notwithstanding the truth of the Tenure for by the grant and bargain and sale of all his Tenements in the Parish of St. Andrews nothing passeth and the truth of the Tenure subsequent shall not help it And by Manwood chief Baron the sale is utterly void for the falsity doth preceed the truth and certainty And it was argued that I. L. entring by colour of the same bargain and sale is a disseisor as the Case is betwixt Croft and Howel 20. Eliz. Com. 537. Yet if he was but Tenant at Will when he made the Lease for years the same was a Disseisin to the said Duke and then the Duke being disseised he is attainted of treason 10. Mariae And now we are to see what things accrue to the Queen by the said Attainder and as to that it was said that at the Common Law a Right of Entry should Escheat but not without office found thereof no more than Lands in possession And by the Statute of 26 H. 8. it is enacted that every person attainted of high treason shall forfeit all his Lands and Tenements which he had of any estate of Inheritance by which Statute a Bishop Abbot or Tenant in tayl in such Case shall forfeit even without Office But in the Statute of 33 H. 8. there is a saving to every other person all such right possession so as in that Case by that Statute the King shall not be in possession without Office but shall have a right but cannot enter before Office or after And he is to have Sci. facias against him who hath the possession and he shall make his defence as well as he can and the words of the said Statute That the King shall be in actual possession shall not be construed to extend to an actual and absolute possession but such a possession only which he had at the Common Law after Office found so as the Statute doth not give to the King a larger possession but an easier without the circumstance of an Office And of that opinion was Manwood chief Baron and Shute second Baron And then it was moved further by Cook because that the Quen by the Attainder hath but a Right and the Queen makes the grant of the Messuages themselves the same grant is void And he granted that the Queen might grant a real Action and a Right of Entry but such a grant ought to be conceived in special words as to say That the Duke of Northumberland was seised of five Messuages and by such a one disseised and after the Duke was attainted and so granted for the Queen may grant such a Right by reason of her Prerogative and therefore the same ought to be granted by special words as in the Case of Mynes in the Commentaries and according to that was the opinion of the Iustices in Cromers Case 8 Eliz. which Case see
prohibition And the Court upon the first Motion conceived a prohibition should pass for if the grant be without deed nothing passed and then hath not Withy cause to claim these Tithes against the said Saunders And notwithstanding that Tithes are quodam modo spiritual things and so demandable in a Court of that nature yet now in divers respects they are become a Lay-fee and lay-things for a Writ of Assise of Mortdauncester and an Assise of novel disseisin lyes of them and a Fine may be levyed of them But it hath been doubted whether Tithes be devisable by Will But at another day the matter was moved and the Court was clear of opinion that a Consultation should be awarded for whether Withy hath right or not right to these Tithes Saunders of common right ought to pay his Tithes and he ought to sever them from the nine parts and whosoever takes them whether he hath right to them or no right Saunders is discharged But Saunders may prescribe in modo decimandi without making mention of any severance and may surmise that the Tithes do belong to I. S. with whom he hath compounded to pay such a sum for all Tithes and afterwards a Consultation was awarded XXX Stacy and Carters Case Trin. 26 Eliz. in the Kings Bench. STacy brought an Action of Trespass for breaking his Close against Walter Carter And declared of a Trespass in Somers-Land in Tunbridge The Defendant pleaded that heretofore he himself brought an Assise of Novel disseisin against the now Plaintiff and supposed himself to be disseised of his Free-hold in Lee juxta Tunbridge and the Land where the Trespass supposed to be done was put in view to the Recognitors of the said Assise and further averred that the Land where c. and the Land then put in view is one and the same c. upon which there was a Demurrer Exception was taken to the form of the Demurrer because in the perclose and conclusion of the Demurrer these words are omitted Averment Et hoc paratus est verificare But as to that it was said by the Court that the Demurrer was well enough with or without such Averment in the conclusion of it which see oftentimes in the Commentaries c. and in the Book of Entries 146. the greater part of the Demurrers have not any such conclusion Another Exception was taken to the bar because the Defendant pleads that heretofore Walter Carter had brought an Assise against the now Plaintiff c. and that the Land put in view to the Recognitors of the Assise per praefatum Warrhamum Carter c. and the Land where c. is all one c. here is Warrhamum for Walterum and notwithstanding that it was after demurrer and not after verdict it was adjudged amendable and as to the matter of the bar it was said by the Defendants Council that recovery of Lands in one Town by Praecipe quod reddat is not a bar for Lands in another Town but where the recovery is by Assise it is otherwise for there the Plaint is general De lib. ten̄to and the Plaintiff shall recover per visum Juratorum and the view is the warrant of the Iudgment and Execution And therefore if a recovery in an Assise be pleaded in bar Not comprised is not any Plea against it as in the Case of recoveries upon a Praecipe quod reddat but not put in view and so not comprised c. which proves that the Record doth not guid the recovery but the view of the Iurors See 26 E 3. 2. Assise brought of Lands in D. the Tenant saith that he holdeth the said Lands put in view joyntly with A. not named in the Writ c. and sheweth the deed of Ioynt-tenancy which speaks of Tenements in B. and the plea holdeth good because he alledgeth the Ioynt-tenancy and the Lands put in view See 24 E 3. It was said on the Plaintiffs side that recovery in Lee juxta Tunbridge could not extend to Lands in Tunbridge no more than a recovery of Lands in one County can extend to Lands in another County See 23 E 3. 16. Assise of Novel disseisin brought of Lands in N. the Defendant pleads recovery in Assise c. brought before by him against the now Plaintiff of Lands in H. and the same Lands put then and now in view and adjudged no bar See also 16 E 3. 16. in an Assise of Tenements in W. the Tenant pleads a Recovery of the same Lands agaist one A. by Assise brought of Tenements in C. which was found by the Assise and that C. is a Hamlet of W. and the Plaintiff notwithstanding that recovery so pleaded had Iudgment for a recovery of Lands in one Town shall not be a bar in an Assise of Lands in another Town See Br. Tit. Iudgment 66. 10 E 3. And the whole Court was clear of opinion that the plea in bar was not good for in the Assise which is pleaded in bar in the principal Case the Tenant there who is now Plaintiff in this Action of Trespass pleaded Nul tort nul disseisin which is no plea as to the Free-hold in Lee juxta Tunbridge and therefore it cannot be like to the Case which hath been put of 26 E 3. for there the Tenant pleaded that he held the said Lands put in view joyntly for there he agreeth with the Plaintiff in the Lands demanded the which Lands are put in view but if in the Case at bar the Defendant being Plaintiff in the Assise the now Plaintiff being then Tenant had pleaded to the Land put in view in bar and the Plaintiff in the Assise had recovered now in this Action of Trespass the Plantiff in the Assise being Defendant in the Action of Trespass might well plead this Recovery in bar for by his plea in the Assise he hath tyed himself to the view and to the Land put in view but it is not so in the Case at Bar where the Tenant in the Assise pleads nul tort nul disseisin for there he doth not plead expresly to the Land put in view but to the supposal of the Plaintiff sc de libero tenemento in Lee juxta Tunbridge afterwards Wray with the assent of the other Iustices awarded that the Plaintiff should recover his damages See by Wray 44 E 3. 45. in Assise of Tenements in B. the Plaintiff pleads that he himself brought an Assise of the same Tenements and his plaint was of Tenements in E. and the same Tenements put in view and recovered and holden a good Plea because the Tenant hath said that the same Tenements were put in view and that took by Assise upon which the Plaintiff said not put in view and so not comprised XXXI Benicombe and Parkers Case Trin. 26. Eliz. In the Kings Bench. IN an Action of Trespass the Iury found this special matter that the Grandfather of the Plaintiff was seised and made a Feoffment to the use of himself for life
passeth and doth extend into D. and the residue which is in C. shall remain in me in gross v. 9 E. 4. 17. Catesby And if I be seised of a Manor which doth consist of services and of twenty Free-holders and one hundred Acres of Demesnes and I grant the services of my twenty Free-holders and forty or twenty Acres of the said one hundred Acres a Manor shall pass although it was not granted by the name of a Manor but if I grant the services of three four or five of my Free-holders and forty or twenty of the said one hundred Acres upon such a grant no Manor shall pass Windham Iustice contrary We are not here to speak of the creation of a Manor that is a forraign matter but we are here to consider upon the division and apportionment of a Manor They that have argued in this case at the Bar have stood much upon the words of the Conveyance manerium suum de North-kelsey and that Sir Fr. Askew at the time of that assurance had not any Manor of North-kelsey or in North-kelsey but that is not any reason for if Cestuy que use mean between the Statute of 1 E. 3. 27 H. 8. will make a Feoffment of the Manor which was in use by these words manerium suum the same had been good and yet it is not manerium suum but the Manor of the Feoffees but it may be said suum by receiving of the profits according to the trust and confidence reposed in the Feoffees so in our case in as much as Sir Fr. Askew had before this grant aswell demesnes as services in North-kelsey it may collaterally be said a Manor there and notwithstanding that tempore concessionis proprie loquendo no Manor was in North-kelsey yet now upon operation of the Law upon this grant a new Manor shall rise for in divers cases where a thing which was not in esse before upon a grant may rise As if I grant unto you out of my Land a Rent de novo And also a thing which was not in esse before may upon a grant take upon it a new nature As if I. seised of a great Wood grant to you Estovers out of it they were not before in me but as Woods and Trees now by this grant they are become Estovers in the Grantee so as they are in the Grantee in another nature than they were in me So in our case although North-kelsey was not a Manor in Sir Fr. Askew yet now upon the grant it is a Manor in Bard 9 E. 4. 17. And as to the matter which hath been objected because a Court cannot now begin the same is not any reason for the Court Baron is incident to the Manor and also to every part of the Manor and transitory through the whole Manor and if Sir Fr. Askew had sold all the demsnes of the Manor in Castord where the Court Baron for the said Manor had always been held and not else-where yet such a Court might be holden in any part of the Demeans in any other of the said Towns The Lord Anderson to the same purpose It hath been argued of the other side that the Manor doth not pass because the grant is in these words manerium de North-kelsey in North-kelsey I conceive that these words de North-kelsey are void as matter of surplusage and the grant shall be construed as if the words had been manerium suum in North-kelsey And a Manor is such a thing as may be determined divided and suspended As if the Lord of a Manor leaseth for years all the Demeans of the Manor the Manor is suspended during the term for years as lately it hath been adjudged And a warranty may be divided as if a Feoffment in Fee be made to two with warranty and the one of them releaseth the warranty vide L. 5. E. 4. 103. A. seised of a Manor which extendeth in four Towns B. C. D. and E. and he gives his Manor in B. C. and D. by this gift the Manor and all that is in the said four Towns passeth And he cited also a Case 21 E. 4. 3. The Lord of a Manor erected a Chapel within his said Manor as a Chapel of Case c. and afterwards it is a Parish-Church now it is become presentable an Advowson appendant as the soil upon the which the Church is built is parcel of the Manor See 32 H. 6. 9. One Manor may be parcel of another Manor as A. holdeth of B. twenty acres of Land as of his Manor of C. which Manor B. holdeth of D. as of his Manor of E. B. dieth without Heir so as his Manor of C. is escheated unto D. now the twenty acres are holden of the Manor of C. as they were before and the Manor of C. is by the Escheat become parcel of the Manor of E. and by Lease of the Manor of E. it shall pass Post 32. And I do not know any difference between the Case of Parceners and the Case of Ioynt-tenants for now they are both equally compellable to make partition And he cited the Case of one Estopp lately adjudged viz. the Queen was seised of the Rectory of D. which extended into the Counties of Lincoln and York and the Queen granted her Rectory of D. in Lincoln these are several grants and now upon the matter they are become several Rectories And as to that which hath been objected concerning a Court Baron which ought to belong to this new Manor and that such a Court cannot now at this day be erected and therfore here cannot be a Manor here needs not the erection of any new Court but forasmuch as the Court Baron before this grant might be by Law holden in any place within the Manor therefore every part of the Demeans of the Manor is capable of a Court to be holden there As where one is seised of a Manor to which an Advowson is appendant now is the Advowson appendant not only to the said Manor but to every part of it for if he alien an acre parcel of the Manor with the Advowson the Advowson is now appendant to the said acre See 43 E. 3. 26. So in the Case at Bar because this liberty and franchise of a Manor is throughout the whole Manor and in every part of the Services and Demesnes upon this grant of the Services and Demesnes in North-kelsey and of his Manor in North-kelsey a Manor passeth which Windham also granted and agreed unto Note at this time there were but three Iudges in this Court And afterwards Iudgment was given for the Defendant XXXIV Alington and Bales Case Pasch 27 Eliz. In the Kings Bench Rot. 584. 1 Cro. 660. 661. ALington and others Executors of Sir W. Cordel late Master of the Ross brought an Action Debt against Bales The Case was this One Bream being seised of certain Lands by Indenture bargained and sold the same to one Platt by these words give grant bargain sell and by
that one Butty was seised of the Land where c. and also of a Messuage with which Messuage the said Land had been usually occupied time out of mind c. and being seised and lying sick commanded a Scridener to be brought to him and the said Scrivener being brought to him he gave him Instructions to make his Will and amongst other things declared unto him that his meaning was that the said Messuage and all his Lands in Westerfield should be sold by his Executors and the Scrivener in making of the Will penned the matter in this manner I will that my house with all the appurtenances shall be sold by my Executors Butty died the Executors sell forty acres of the said Land to the Def. and all this matter was found by special verdict and it was moved by the Plaintiffs Counsel that the sale of this Land by the Executors is not warranted by the Will Another matter was moved scil admitting that the Executors have authority by the Will to sell the Land if the sale of parcel of the Land be good and warrantable As if I make a Charter of Feoffment of ten acres and a Letter of Attorney to make livery of them to the Feoffee if the Attorney makes several liveries of the several acres the same is void But by Cook the Cases are not like for in the Case put he hath a special Commission in which the party to whom and all the other circumstances are set down certainly contrary in the Case at the Bar there the Commission is general c. and peradventure the Executors shall never find a Chapman who will contract with them for the whole More Rep. 222. Co. Inst 113. a. And afterwards upon conference amongst the Iudges Clench Gawdy and Wray it was resolved that by this devise the Lands do pass by the sale of the Executors to the Defendant which sale also by process is warranted by the Will for by Wray these words with all the appurtenances are effectual and emphatical words to enforce the devise and that doth extend to all the Lands especially because it is found that the Testator gave to the Scrivener his Instructions accordingly And afterwards Iudgment was given against the Plaintiff See 3 Eliz. Plowd 210. Betwixt Sanders and Freeman there the Devise is pleaded in this manner Messuagium cum pertinentiis ad illud spectantibus in perpetuum in villa de Arthingworth XLIII Watkins and Astwicks Case Trin. 28 Eliz. In the Kings Bench. 1 Cro. 132. IN an Ejectione firmae it was found by special verdict that one Maynard was seised and made a Feoffment in Fee upon condition of payment of mony on the part of the Feoffor by way of Mortgage at a certain day before which day the said Maynard dyed his Son and Heir being within age Tender to redeem a Mortgage afterwards at the day of payment limited by the Mortgage a stranger at the instance and request of the Mother of the Heir tendred the money to the Mortgagee in the name of the Heir being within age who refused it And it was resolved by the whole Court that the same is not a sufficient tender to redeem the Land according to the Mortgage for it is found by the Iury that the Heir at the time of the tender was within age 2 Len. 213. generally not particularly of six or ten years c. then it might well stand with the verdict that the Heir at such time was of the age of 18 or 19 years at which age he is by the Law out of the Ward of his Mother or any other prochein amy in which Case it is presumed in Law that he hath discretion to govern his own affairs and in this Case the Mother is but a stranger for the Law hath estranged the Mother from the government of the Heir but if the Iury had found that the Heir at the time of the tender was of tender age viz. within the age of fourteen years in which Case by Law he ought to be in Ward in such Case the tender had been good XLIV Leput and Wroths Case Trin. 28. Eliz. In the Kings Bench. A Replevin by Lepur against Wroth 6 Co. 33. Replevin 3 Len. 132. and declared upon a tortious taking in Burnham in the County of Essex the Case upon the pleading was that Robert Earl of Sussex was seised of the Manor of Burnham in Fee and leased the same to the King for one and twenty years and afterwards the said Earl died by which the said Manor descended to Thomas late Earl of Sussex and he being seised 4 and 5 Phil. and Mary it was Enacted by Parliament That the Lady Frances Wife of the said Earl by virtue of the said Act of Parliament should have hold and enjoy c. during the widowhood of the said Frances for and in consideration of the Ioynture of the said Frances the said Manor Provided always and it is further enacted Construction of Statutes That it should be lawful for the said Earl by his writing indented dimissionem vel dimissiones facere pro termino 21. annorum vel infra de eodem Manerio pro aliquo redditu annuali ita quod super omnes singulos hujusmodi dimissionem dimissiones antiquus redditus consuetus vel eo major amplior reservaretur and that every such demise should be of force and effectual in Law against the said Frances for term of her life if the said term should so long continue And further the said Act gave to the said Frances Distress Avowry Covenant c. against such Lessee and for the said Lessee against the said Dame And afterwards the said Thomas the said former Lease not expired leased the said Manor to Wroth the Defendant for one and twenty years to begin at the Feast of Saint Michael next following and note the Lease was made the third of April before rendring three hundred and forty pounds per annum which was redditus amplior antiquo usuali Popham Attorney general argued that the said Lease did not bind the said Lady Frances and that for two Causes 1. because it is to begin at a day to come 2. because it was made a former Lease being in esse and he argued much upon construction of Statutes to be made not according to the letter but according to the meaning of them And he cited a Case upon the Statute of 2 H 5. 3. by which it is Enacted that in no Action in which the damages do amount to forty marks any person should be admitted to pass in trayl of it who had not Lands or Tenements of the clear yearly value of forty shillings yet the said Statute shall not be by construction extended where in an Action between an English-man and an Alien the Alien prayeth medietatem linguae and yet the Statute is general So in our Case although this private Act doth not seem to provide expresly but for two
of Lond. in Camera Guild-hall Civitatis prâ—ed and demanded 1500 pounds upon such Recognizance acknowledged 20 November 20 Eliz. and upon default of the said Hanmen Owen 25. according to the custom of London used in course of Attachment attached six hundred pounds in the hands of one W. Bolton of Grays-Inn in part of satisfaction of the said debt of one thousand five hundred pounds and now within the year came the said Hanmer ad disonerandum debitum praedicti had a precept of Scire facias against the said Thomas Leigh and after pleaded and demanded Dyer of the said Recognizance and had it quod ipse restitutionem of the said 600 pounds in manibus dict W. Bolton attachiat habere debet And upon the whole Record the Case was thus Rowland Leigh Esquire being seised of certain Manors and other Lands in the County of Glocest had issue Eliz. his Daughter and Heir inheritable to the said Lands and by Indent dated 20 Maii 19 Eliz. granted Custodiam regulam gubernationem educationem maritagium dict Eliz. to the said Thomas Leigh after which the said Thomas Leigh by Indenture 14 Martii 29 Eliz. granted and assignâ—d the said custody Dyer 190 191. rule government education and marriage and all his interest therein and the said Indenture to Sir John Spencer after which the said Sir John Spencer and Thomas Leigh by their Indenture the 26. of August 20 Eliz. granted and assigned to the said John Hanmer the said custody rule government education and marriage oâ— the said Eliz. and all their interest in the same and all the recited Indenturs by which last recited Indenture 29 August the said John Hanmer covenanted with the said Leigh that Thomas Hanmer Son and Heir apparent of the said John Hanmer maritaret in uxorem duceret dictam Elizabetham ad vel antequam dicta Eliz. dictus Tho. Hanmer perimplerint suas separales aetates 14 annorum si dicta Eliz. ad id condestendere agreare vellet and afterwards before the said Tho. Hanmer and the said Elizabeth suas separales aetates 14 annorum perimplevissent sc 8 die Sept. 20 Eliz. the said Tho. Hanmer took to wife the said Eliz. the said Tho. Hanmer then being aetatis 13 annorum and no more and the said Eliz. then being of the age of nine years and no more and Tho. Hanmer aforesaid over-lived c. And pleaded further that the said Tho. Hanmer after he attained his full age of fourteen years and before any agreement or assent by the said Tho. Hanmer to the marriage aforesaid betwixt the said Tho. Hanmer and the said Eliz. had at or after idem Thomas Hanmer came to his age of fourteen years scil 10 die Sept. Anno 22 Eliz. ad dictum matitagium disagreavit maritagium illud renunciavit and all this matter was pleaded in Bar as performance of the Covenant contained in the Indenture of defeazance made upon the Recognizance whereupon the Action is brought And concluded his plea unde petit judicium si dictus Tho. Leigh actionem suam praedâ—ct c. Et quod ipse idem Johannes Hanmer restitutionem dict 600 li sc ut praefert aâ—achiat habere valeat And all the question here was if this marriage had by this manner and afterwards renounced as is aforesaid be such a marriage as is intended in the Covenant so as the said Covenant be satisfied by it And it was argued before the Mayor Recorder and Aldermen of London in their Guild-Hall by Angier of Grays-Inn on the part of Leigh the Plaintiff and he in his Argument did much rely upon the definition of marriage by Justinian in his Institutions Nuptiae maris faeminae conjunctio individua continens viae societatem and the marriage here in question is not according to the said difinition for the persons parties to this contract are not persons able by Law to make such contract because that non attigerunt annos nubiles Ergo nuptiae esse non possunt but only sponsalia a step unto marriage And there is also rendred one reason of the said definition upon the word individua individuam dico quia non nisi morte aut divortio separandum but the marriage now in question might be dissolved without death or divorce as it is in our case by disagreement And see Jurisprudentiae Romanae Lib. 1. Cap. 33. Societas consortium omni vita inter marem faeminam ad concubitum which is societatis hujus consummatio And as every Act doth consist upon three things 1. Inceptio 2. Progressio 3. Continuatio so is it in the Case of marriage but in this case when Thomas Hanmer took the said Eliz. to Wife that is but an inception but the progression and consummation of it is cut off by the disagreement and he much relyed upon the words of the Covenant sâ— dicta Eliz. ad id condescendere agreare vellet so as there is not any liberty left to the Defendant for the agreement or disagreement of the Son but he ought to agree at the peril of his Father but if Eliz. will not agree then the Defendant is not at any mischief for in such case the Covenant doth not extend to him and also here the Father is bound that his Son a stranger to the Obligation should marry the said Elizabeth which he ought to procure at his peril or otherwise he shall forfeit his Bond. Egerton Solicitor of the Queen argued to the contrary This marriage as much as concerns this Covenant is to be considered according to the reason of the common Law and not according to the rules and grounds of the Canon or Civil Law not as a marriage to right but as a marriage in possession and marriage in possession is sufficient always in personal things and causes especially where the possession of the Wife is in question 2 Roll. 585. but where the possession of the Husband is in question there marriage in right ought to be and where marriage in possession fals in averment there it shall not be tried by the Bishop as in the Case of a marriage of right where never accoupled in loyal matrimony is pleaded but by the Country for in case of Wife in possession never accoupled in matrimony is no Plea Postea 181. 12 Len 170. 171. â—3 Len. 129. but not his Wife which see 12 E. 3. br 481. A. brought an Action of Trespass against B. and C. B. pleaded that C. is Wife of the Plaintiff and demanded Iudgment of the Writ the Plaintiff by Replication said never accoupled in Lawful matrimony but it was not allowed but was driven to say not his Wife for if C. was the Wife of the Plaintiff in possession or by Reputation it is sufficient to abate the Writ see also 49 E. 3. 18. by Belknap the right of the Espousal is always to be tried by the Bishop but the possession of the marriage not as in Assize by A. and
did not lie in the said Court. 18 Eliz. Dyer 250. F. B. 22. That upon Erronious Iudgment given in the Kings Bench in Ireland Error shall be brought in the Kings Bench in England 15 E. 3. Error 72. Fenner who was of Council with the Archbishop demanded of the Court how and in what manner the Record shall be remanded to the Iustices of Assize so as the Archbishop might have execution To which the Court said that the surest way is to have a Certiorare out of the Chancery into the Common Pleas directed to the Iudges there and then out of the Chancery by Mittimus to the Iustices of Assize But Fenner made a difficulty of it to take such course for the remanding of it for doubt they would not allow it to be a Record where it is not a Record for upon the matter the Record is not removed but remains with the Iustices of Assize Then Anderson said Sue Excution out of the said Record but because the Record came before us by Writ of Error it shall be also removed and remanded by Writ and so it was LXX Kempe and Carters Case Pasch 29 Eliz. In the Common Pleas. THomas Kempe brought Trespass Copyhold for breaking of his Close against Carter and upon pleading they were at issue if the Lord of the Manor aforesaid granted the said Lands per copiam rotulorum curiae manerii praedict secundum consuetudinem manerii praedict and it was given in Evidence that within the said Manor were divers customary Lands and that the Lord now of late at his Court of the said Manor granted the Land c. per copiam rotulorum curiae where it was never granted by copy before It was now holden by the whole Court that the Iury are bound to find Dominus non concessit for notwithstanding that de facto Dominus concessit per copiam rotulorum curiae yet non concessit secundum consuetudinem manerii praedict for the said Land was not customary nor was it demisable for the custom had not taken hold of it In the same Case it was also shewed that within the said Manor some customary Lands are demiseable for life only Evidence of customs and some in Fee and it was said by the Lord Anderson that he who will give in Evidence these several customs ought to shew the several limits in which the several customs are severally running as that the Manor extends into two Towns and that the Lands in one of the said Towns are grantable for lives only and the Lands in the other in Fee and he ought not to shew the several customs promiscuè valere through the whole Manor And he remembred a Case of his own experience scil The Manor of Wadhurst in the County of Sussex consisted of two sorts of Copy-hold scil sook-Sook-land and Bond-land and by several customs disseverable in several manners As if a man be first admitted to Sook-land and afterwards to Bond-land and dieth seised of both his Heir shall inherit both but if he be first admitted to Bond-land and afterward to Sook-land and of them dieth seised his youngest Son shall inherit and if of both simul semel his eldest Son shall inherit But if he dieth seised of Bond-land only it shall descend to the youngest and if customary Land hath been of ancient time grantable in Fee and now of late time for the space of forty years hath granted the same for life only yet the Lord may if he please resort to his ancient custom and grant it in Fee. It was also moved in this case If customary Land within a Manor hath been grantable in Fee if now the same Escheat to the Lord and he grant the same to another for life the same was holden a good grant and warrantable by the custom and should bind the Lord for the custom which enables him to grant in Fee shall enable him to grant for life and after the death of the Tenant for life the Lord may grant the same again in Fee for the grant for life was not any interruption of the custom c. which was granted by the whole Court. LXXI Walker and Nevils Case Pasch 29. Eliz. In the Common Pleas. Dower WAlker and his Wife brought a Writ of Dower against Jervice Nevil and judgment was given upon Nihil dicit and because the first Husband of the Wife died seised a Writ of Enquiry of Damages was awarded by which it was found that the Land which she ought to have in Dower the third part was of the value of eight pound per annum and that eight years elapserunt a die mortis viri sui proximè ante inquisitionem assident damna to eight pounds and it appeared upon the Record that after Iudgment in the Writ of Dower aforesaid the Demandants had execution upon habere facias seisinam Damages so as it appeareth upon the whole Record put together that damages are assessed for eight years where the Demandants have been seised for part of the said eight years upon which the Tenant brought a Writ of Error and assigned for Error because damages are assessed untill the time of the Inquisition where they ought to be but to to the time of the Iudgment but the Exception was not allowed Another Error was assigned because that where it is found that the Land was of the value of eight pounds per annum they have assessed damages for eight years to eighty pounds beyond the Revenue for according to the rate and value found by verdict it did amount but to sixty four pounds but that Error was not also allowed for it may be that by the long detaining of the Dower the Demandants have sustained more damages than the bare Revenue c. Another Error was assigned because Damages are assessed for the whole eight years after the death of the Husband where it appeareth that for part of the said years the Demandants were seised of the Lands by force of the Iudgment and execution in the Writ of Dower and upon that matter the writ of Error was allowed LXXII Archpool against the Inhabitants of Everingham Pasch 29 Eliz. In the Common Pleas. IN an Action upon the Statute of Winchester of Huy and Cry by Archoopl against the Inhabitants of the Hundred of Everingham the Iury found that the Plaintiff was robbed 2 Januarii post occasum solis sed per lucem diurnam and that after the Robbery committed the Plaintiff went to the Town of Andover and advertised the Baylies of the said Town of the said Robbery and further found that the said Town of Andover is not within the said Hundred of Everingham and that there is another Town nearer to the place where c. the Robbery was done than the said Town of Andover within the said Hundred but the said Town of Andover was the nearest place where c. by the Kings high-way It was moved that upon this matter the Plaintiff should not have judgment
for that he hath not made his Fresh sute according to the Law for he ought to have begun his Fresh sute within the Hundred where the Robbery was done and it was also objected that the Robbery was done post occasum solis in which Case the Hundreders are not to pursue the Malefactors And Walmsley Serjeant cited a Case out of Bracton Si appellatus se defenderit contra appellantem tota dle usque ad horam in qua Stellae incipiunt apparere recedat quietus de appello and it is not reason to drive the Hundreders to Follow felons at such a time 1 Cro. 270. when for want of light they cannot see them And all the Iustices were clear of opinion that if the Robbery was done in the night time the Inhabitants are not bound to make the pursute And by Rhodes if in a Praecipe quod reddat of Lands the Sheriff summons the Demandant upon the Land in the time of night such a summons is meerly void LXXIII Wiseman and Wisemas Case Pasch 29 Eliz. In the Common Pleas. Intrat Trin 28. Rot. 1458. IN an Action of Debt by Wiseman against Wiseman the Case was Debt 1 And. 160. Owen 140. that one Wiseman was seised of the Lands and by his Will devised 1. I will and bequeath unto my Wife B. acre for the Term of her life the remainder to my Son Thomas in tail Item I will and bequeath unto my Son Thomas Devises all my Lands in D. and also my Lands in S. and also my Lands in V. Also I give and bequeath unto the said Thomas my Son all that mâ— Island or Land enclosed with water which I purchased of the Earl of Essex To have and to hold all the said last before devised premisses unto the said Thomas my Son and the Heirs of his Body The only matter was If the Habendum shall extend to the Island only in which Case Thomas shall have but for life in the Lands in D. S. and V. or unto the Island and also to the Lands in D. S. and V 2 Roll. 60. Roph. 126. in which Case he shall have Fee-tail in the whole And it was argued by Fenner that the Habendum should extend to the Island only as he said the opinion of the Iustices of this Court was in 4 Eliz. in another Case I devise my Manor to D. my eldest Son and also my Land in S. in tail in that Case the entail limited for the Land in S. shall not extend to the 1 Roll. 844. said Manor and of such opinion was Weston Welsh and Dyer Brown contra that the Son hath tail in both But if the words of the devise had been I devise my Manor of D. and my Lands in S. to my Son in tail here the Son had an estate tail in both So it hath been adjudged that if I devise Lands to A. B. and C. successively as they be named the same is good by way of Remainder Walmesley contrary and he relied much upon this that the words of the Habendum are in the plural number 2 Bulst 180. 181. All the last before devised premisses whereas the thing lately devised by the Will was an Island in the singular number which cannot satisfie the Habendum Extent of an Habendum which is in the plural number and therefore to verifie the plural number in the Habendum the Habendum by fit construction shall extend to all the Lands in D. S. and V. and so upon his motion made at another day it was resolved by all the Iustices that the Habendum should extend to all the said Lands and the Habendum should not streighten the Devise to the Island only LXXIV Fullwood and Fullwoods Case Pasch 29 Eliz. In the Common Pleas. Bail renders himself in Court. IN an Action upon the Case the Defendant put in bail to the Court to answer to the Action and now Iudgment being given against him he came into Court and rendred himself and prayed that in discharge of his sureties that the Court would record the rendring of himself which was granted And the Court demanded of the Plaintiff if he would pray execution for the body against the Defendant who said he would not whereupon the Court awarded that the sureties should be discharged and the Rule was entred that the Defendant offered himself in discharge of his sureties and Attornatus Querentis allocatus per curiam c. dixit se nolle c. Ideo consideratum fuit per curiam quod tam praedict defend quam praedict Manucaptores de recognitione praedict denariis in eadem contentis exonerentur LXXV Pasch 29 Eliz. In the Common Pleas. THe Case was He in the Reversion upon a Lease for years makes a Charter of Feoffment to divers persons to the use of himself for life Feoffments and after to the use of his eldest Son in tail and the words of the Charter were Dedi Concessi Barganizavi Feoffavi and he sealed and delivered the deed but no livery of seisin was made and afterwards he came to his Lessee for years and said to him that he had made a Feoffment and shewed also the uses but did not shew to whom the Feoffment was made to whom the Lessee said you have done very well I am glad of it Attornment And if that were a good Attornment was the Question It was said that that was the Case of one Arden And Gent and Manwood were of opinion that the same was no Attornment because it was not made to the Feoffee scil to the Grantee of the Reversion and so it was ruled in this Case for Attornment ought to be to the Grantee himself and not to Cestuy que use 1 Cro. 251. Tythes and where the spiritual court shall have jurisdiction of them LXXVI The Parson of Facknams Case Pasch 29 Eliz. In the Common Pleas. THe Parson of great Facknam brought an Action of Trespass against the Parson of Hannington and the Case was If the Parson of one Parish claim by prescription a portion of Tythes out of the Parish of another if the Spiritual Court shall have the Iurisdiction for the tryal of it And the opinion of the whole Court was clear that it should because that the matter is betwixt two spiritual persons and concerning the right of Tithes As 35 H. 6. 39. I. Vicar of B. brought Trespass for taking away of forty loads of Beans c. The Defendant pleaded that he is Parson of the said Church of B. and the Plaintiff is Vicar c. and before the Trespass c. the Beans were growing in the same Town and severed from the nine parts and he took them as belonging to his said Church and demanded Iudgment of the Court c. The Plaintiff said that he and all his Predecessors Vicars c. time out of mind c. have used to have the Tithes of such a Close c. belonging to his Vicaridge and
the Obligation which was made for the further assurance of the duty And here the Defendant ought to have pleaded the tender and see 14. E. 4. 4. A. is bound unto B. that where he hath granted to the said B. a Rent-charge out of such Land now if the said B. shall enjoy the said Rent according to the form and effect of the said Grant that then c. there he needs not to plead any tender for the Rent is not payable in other manner than it was before contrary if the Condition had been for the payment of the Annuity And of that opinion was the whole Court that he ought to have pleaded a tender Another matter of the Award was that the said Audar should yield up surrender relinquish to the Plaintiff all such Houses and Tenements which he had in his possession by reason of the custody of the said Plaintiff As to that the Defendant pleaded that he had yielded up c. All such Houses c. generally without shewing which in certain And for that cause the Court was clear of opinion that the Plea was not good which see 9 E. 4. 16. If I be bounden upon condition to enfeoff the Obligee of all Lands Tenements which were to I.S. in pleading the performance of that Condition I ought to shew what Lands and Tenements in certain for they pass out of me by the Feoffment See also 12 H. 8. 7. 13 H. 8. Non damnificatus generally where no Plea. 19. Another point of the Award was That the said Audar should acquit and discharge and save harmless the Plaintiff of such an Obligation to which the Defendant pleaded that Querens non fuit damnificatus and that Plea was holden insufficient for he ought to have shewed how he had discharged him and it is not sufficient to answer only to the damnification as if I be bounden to convey unto you the Manor of B. in pleading the performance of the condition it is not sufficient to shew that I have conveyed the said Manor but to shew by what manner of conveyance viz. by Fine or Feoffment c. 22 E. 4. 43. If the condition be to discharge the Plaintiff c. then the manner of the discharge ought to be shewed but if it be to save harmless only then non damnificatus generally is good enough 40 E. 3. 20. 38 H. 6. 39. The condition of an Obligation was that the Obligor should keep without damage the Obligee of such a sum of mony against B. to whom he was bounden for the payment of it and the said Obligor pleaded that at such a day c. the said B. at his request delivered the Obligation to the Plaintiff in liew of an acquittance without that that the Plaintiff was damnified by the said Obligation before the delivery of it and it was holden by the Court that if the Defendant had pleaded that he had kept the Plaintiff without damage and had not shewed how that the Plea had not been good See 22 E. 4. 40. The Lord Lisles Case And afterwards Iudgment was given for the Plaintiff XCVI Heydons Case Mich. 29 30 Eliz. RAlph Heydon pretending title to certain Land entred into it and made a Lease of it to try the title Vpon which his Lessee brought an Ejectione firmae in which the parties were at Issue And now at the day of the Enquest the Iurors were called and but five of them appeared whereupon the Defendant came and shewed to the Court that the said Heydon by his Friends and Servants had laboured the Iury not to appear and that for the further vexation of the Defendant who had four Verdicts in affirmance of his title that the said Heydon to procure the Iury not to appear had surmised to them that he and the Defendant were in course of an agreement whereas in truth no such communication of agreement had any time passed betwixt them And all this was openly deposed in Court as well upon the oath of the Defendant himself as upon the oath of one of the Iurors upon which the Court awarded an Attachment against the said Heydon to answer the contempt And also granted to the Defendant that he might sue a Decem tales with proviso for his own expedition XCVII Smith and Kirfoots Case Mich. 29 30 Eliz. In Communi Banco Debt upon Arbitrament SMith brought Debt upon an Arbitrament against Kirfoot and declared that the Defendant and he imposuerunt se in arbitrium ordinationem judicium Johannis Popham ar arbitratoris indifferenter electi de jure titulo inturesse in quibusdam Messuagijs c. Who taking upon him the burthen of the Arbitration ordinavit that the said Defendant should pay unto the Plaintiff ten pounds in plenam satisfactionem c. and thereupon he brought his Action It was moved by Walmesley Serjeant that the Declaration is not sufficient for it appeareth that the Arbitrament set forth in the Declaration is utterly void because whereas ten pounds is awarded to the Plaintiff nothing is awarded to the Defendant and so the Award unequal and so void But the Court was clear of opinion that notwithstanding that such an Arbitrament be void in Law yet it may be for any thing that appeareth that the award is good enough 1 Cro. 904. â— Cro. 354. 355. For the Plaintiff is not to shew in his Declaration all the Award but such part only of it which doth entitle him to the thing c. and if the Defendant will impeach the Award for any thing that is to come in on his part vide ac Book of Entries 152. 123. vide For the Arbitrament 39 H. 6. 12. by Moile 7 H. 6. 41. XCVIII Arundel against Morris Mich. 29 30 Eliz. In Communi Banco RIchard Arundel sued an Audita Querela against Morris and it was comprehended in the Writ That Morris had recovered against him a certain Debt and that he was taken by a Capias ad satisfaciendum Audita Querela at the suit of the said Morris by Hickford Sheriff of the County of Gloucester who let him go at large c. And they were at issue upon the voluntary escape it was found for the Plaintiff It was objected in arrest of Iudgment that the Writ of Audita Querela is not good for the words are that the Plaintiff captus fuit virtute brevis nostri judicialis whereas this word judicialis is not in the Register but only brevis nostri de capiendo But by the whole Court the Writ is good for the word judicialis is but a word of surplusage and shall not make void the Writ And afterwards Iudgment was given for the Plaintiff XCIX Brook against King. Mich. 29 30. Eliz. IN Debt upon an Obligation by Brook against King the Defendant pleaded that the Bond was endorced with such condition viz. Debt That it the said Defendant King shall procure one I.S. to make reasonable recompence to the
the bar that the moyety of those sixty messuages c. of which he pleads the Fine was parcel of the Manor at the time of the Fine levyed for the pleading is that the Grandfather of the Demandant was seised of the said Manor unde medietas praedictorum 60. messuagiorum c. a tempore cujus contrar memoria c. was parcel and so seised de manerio praedict unde c. Finis se levavit and he conceived that the pleading notwithstanding that was good enough for he hath said as much in effect contrar cujus memoria hominum non existit in the present tense which amounts to this that men cannot remember c. but that this moyety was parcel of the said Manor As 10 H. 7 12. In an Assise of Common the Plaintiff makes his title that he was seised of a Messuage and Carve of Land in D. to which the said Common is appendant and that he and all his Ancestors and all those whose estate he hath c. have used to have Common c. Exception was taken to the title because the Plaintiff doth not shew in his title that he is seised of a Messuage c. for if he hath aliened the Messuage the Common passeth so if he be disseised c. but the Exception was not allowed for it appeareth upon the words of the title that the Plaintiff is seised i. all those whose estate he hath in the present tense which words do shew and declare possession and seisin in the Plaintiff the time of the plea pleaded so in this case the substance of the words in which the defect is assigned is ut supra That men cannot remember but that this moyety was parcel of the Manor and then the words after unde c. reddidit Manerium praedict unde c. shall have the same construction as before Periam conceived that the Bar is nought for the cause aforesaid for it is not so pleaded that we can adjudge upon it that the said moyety was parcel of the Manor at the time of the Fine levyed and then the Fine cannot extend unto it And the reason alledged by my brother Rhodes shall not help that matter for the said words cannot be construed otherwise but that no man can remember but the said moyety was parcel but not that it is parcel or at the time of the Fine levyed was parcel Vide 32 H. 6. 24. In Trespass the Defendant pleaded That A. was seised of the Manor of D. whereof the place c. is parcel he ought to say expresly that the place where was parcel of the Manor at the time of the trespass supposed Windham conceived that the plea was good and that it appeareth well upon this plea that the said moyety was parcel of the said Manor at the time of the Fine levyed for he pleads that the Grandfather of the Demandant was seised of the Manor of N. Unde medietas praedictorum c. a tempore cujus contrar memoria hominum non existit sic scisitus existens Finis se levavit sic scisitus i. e. seised of the Manor in such sort as the Manor is set forth before and that is good pleading especially by way of bar which if it be good to a common intent is well enough and the word unde c. so often repeated after shall be idle and to no purpose if the Law shall not give such a construction Anderson to the same purpose And he much relyed upon the reason of Windham and so seised Another Exception was taken to the Bar Averrment because in pleading of the Fine it is not averred that the Conusor at the time of the Fine levyed was of full age out of prison c. And as to that Rhodes took the difference between the pleading upon the Statute of 1 H. 3. where these disabilities are within the purview of the said Statute and upon the Statute of 4 H. 7. where in the body of the Statute no mention is made of them but afterwards in an especial Exception by it self and he cited the opinion of the Iustices especially of the Lord Dyer in the Case reported by Plowd 5 Eliz. 365. betwixt Stowel and the Lord Zouch Periam to the same intent and upon the same reason and further he said that although the Statute of 32 H. 8. contains in its purview the same disabilities Yet this Fine is pleaded upon the Statute of 4 H. 7. and therefore the pleading of the same shall not be directed nor waged by the Statute of 32 H. 8. which doth not alter the pleading of a Fine which was before nor the reason of it for it is not properly a Statute nor do Fines receive any strength or virtue by it but is but a construction of the said former Statute And he put the Case betwixt Hide and Umpton where Umpton mean betwixt the Statutes of 32 and 34 H. 8. Declared his Will of all his Lands which devise if it be good for two parts of the Land devised it was doubted or that the devise should be void for the whole afterwards came the Stat. of 34 H. 8. and cleared the doubt for to that intent it was made and in the said Statute there is a Proviso that the said Statute shall not extend to the Will or the Devise of Tho. Umpton or shall be prejudicial or hurtful to any person or persons for any Lands c. contained or specified in the said Will or Devise but that the said Will and Devise shall stand remain and be in the same case in force and effect in the Law as the same was before the making of this Act. Now notwithstanding that Proviso the Will of Umpton was holden good but for two parts for so the Statute of 34. H. 8. construed the Statute of 32 H. 8. So in our Case the Statute of 32 H. 8. of Fines construes the Statute of 4 H. 7. to extend to Fines levyed by Tenant in tail therefore the estate tail shall be adjudged in Law to be bound by the Statute of 4 H. 7. and not by 32 H. 8. which is rather a Iudgment upon the said Statute of 4 H. 7. than any new Statute Windham to the same intent and he relyed upon the reason aforesaid And further said if one will plead a Lease made by Tenant in tail upon the Statute of 32 H. 8. he need not to aver the full age of the Lessor and yet that quality of full age is within the purview of the said Statute First all Leases to be made c. by any person being of full age c. and so is the common use of pleadings And of the same opinion was the Lord Anderson for the said Exception for the reasons and upon the difference aforesaid Another Exception was taken to the Bar because it is not alledged that the said Fine was engrossed in the same Term in which it was levyed And as to that it was holden by Rhodes that
petit quod inquiratur per patriam praedict Brett similiter It was moved that the parties should replead for this matter upon which they are at Issue scil the appearance is not triable by Iury but by the Record And the Court was clear of opinion that the parties should replead for the cause aforesaid And it was moved by the Lord Anderson that if A. be bound to appear in the Kings Bench at such a day and A. at the said days goe to the Court but there no process is returned then the party may go to one of the chief Clerks of the Court and pray him to take a Note of his appearance And by Nelson we have an acient form of entry of such Appearance in such Cases Ad hunc diem venit I. S. propter indemnitatem suam Manucaptorum suorum petit quod comparentia sua in Curia hic recordetur And see for the same 38 H. 6. 17. And afterwards the Lord Anderson inspecto Rotulo ex assensu sociorum awarded a Repleader And so by Nelson it hath been done oftentimes here before and put in ure The same Law is where at the day of appearance no Court is holden or the Iustices do not come c. he who was bound to appear ought to have an Appearance recorded in such manner as it may be and if the other party pleadeth Nul tiel Record it behoveth that the Defendant have the Record ready at his peril for this Court cannot write to the Iustices of the Kings Bench for to certifie a Record hither CXV Baxter and Bales Case Mich. 29 30 Eliz. In the Common Pleas. Debt not extinct by administration BAxter brought Debt upon a Bond as Executor of I. against Bale who pleaded that the Plaintiff after the death of the Testator was cited to appear before the Ordinary or his Commissary to prove the Will of the said I. and at the day of his appearance he made default upon which the Ordinary committed Letters of Administration to the Defendant by force of which he did administer so the debt is extinct c. but the whole Court was clear of opinion that the debt was not extinct for now by the probate of the Will the administration is defeated and although the Executor made default at the day which he had by the Citation before the Ordinary yet thereby he is not absolutely debarred but that he may resort to the proving of the Will whensoever he pleaseth But if he had appeared and renounced the Executorship it had been otherwise and the debt is not extinct by the Administration in the mean time CXVI Mich. 29 30 Eliz. In the Common Pleas. IN a Franchise the parties are at Issue upon a matter triable out of the Franchise And it was moved if now the Record should be sent into the Common Pleas and there tryed and after trial sent back into the Franchise Which Periam and Anderson utterly denied and by Periam there is no reason that we should be their Ministers to try Issues joyned before them And it is not like 2 Len. 37. where in a Liberty or Franchise a Forrein Voucher is to warrant Lands in such cases we shall determine the Warranty but that is by a special Statute of Glocester cap. 12. And Nelson Prothonotary said that such an Issue was tryed here of late Quod nota CXVII The Earl of Arundel and the Lord Dacres Case Mich. 29 30 Eliz. At Serjeants Inne PHilip Earl of Arundel and the Lord William Howard his Brother marryed the Daughters and Co-heirs of the late Lord Dacres And now came Francis Lord Dacres as heir male of the said Family and claimed the Inheritance c. And after long sute betwixt both parties they submitted themselves to the award of Gilbert Lord Talbot and of Arthur Lord Grey of Wilton and Windham and Periam Iustices And before them at Serjeants Inne the matter was well debated by the Council learned on both sides and as unto Greistock Lands parcel of the Lands in question the Case was That Tenant in tail makes a Feoffment in fee unto the use of himself for his life the Remainder in tail to his eldest Son with divers Remainders over with a Proviso that if any of the Entailees do any act to interrupt the course of any entail limited by the said Conveyance that then the use limited to such person should cease and go to him who is next inheritable And afterwards Tenant in tail dieth his eldest Son to whom the use in tail was first limited entreth and doth an Act against the said Proviso and yet held himself in and made Leases the Lessees enter the Lessor dieth seised his Heir being within age and in ward to the Queen It was holden by Shutleworth Serjeant Yelverton Godfrey Owen and Coke who were of Council with the Heirs general of the Lord Dacres that here is a Remitter for by this Act against the Proviso the use Remitter and so the possession doth accrue to the enfant Son of him to whom the use in tail was limited by the Tenant in tail Then when the Tenant in tail after his said Feoffment holds himself in this is a disseissin for a Tenancy by sufferance cannot be after the cesser of an estate of Inheritance But admit that he be but a Tenant at sufferance Hâ—b 255. Dy. 54. yet when he makes Leases for years the same is clearly a disseisin and then upon the whole matter a Remitter and although the Enfant taketh by the Statute yet the right of the tail descending to him afterwards by the death of his Father doth remit him as if Tenant in tail maketh a Feoffment in fee to the use of himself for life the Remainder in tail to his eldest Son inheritable to the first intail notwithstanding that the eldest Son takes his Remainder by the Statute and so be in â—â— force thereof yet when by the death of his Father the right of the Entail descends to him he is remitted CXVIII Butler and Ayres Case Mich. 29 30 Eliz. In the Common Pleas. Dower BUtler and his Wife brought a Writ of Dower against Thomas Ayre Son and Heir of Bartholmew Ayre first Husband of the said Margaret Wife of the Plaintiff and demanded Dower of Lands in A. and B the Tenant pleaded never seised que Dower and the Iury found that the said Bartholmew was seised during the Coverture de omnibus tenementis infra script preterquam the Tenements in sic ut dicta Margareta dotari potuit Exception was taken to this Verdict because that this preterquam c. doth confound the Verdict To which it was said by the Court that the preterquam is idle and surplusage for it is of another thing than that which is in demand and the seisin of the first Husband of Lands in A. and B. is confessed and the preterquam works nothing Another matter was objected because here the Iury have assessed damages
which process issued out of the Exchequer to take and seize all the goods and two parts as well of all the Lands Tenements and Hereditaments Leases and Farms of such Offender as of all other the Lands Tenements and Hereditaments liable to such seisure or to the penalties aforesaid by the true meaning of this Act leaving the third part c. And Popham Attorney General moved If a Recusant hath more than a third part of his Lands in Copy-hold land if this Copy-hold as to the surplusage shall be liable to the penalty Manwood chief Baron conceived that the Copy-hold is liable in this Case by the Statute although not directly by express words yet within the intent of it and that by reason of these words all other the lands c. liable to such seisure c. Walmes Serjeant Copy-hold is not liable to a Statute Merchant or Staple also if the Queen hath the Copy-hold how shall the Lord have the services which the Queen cannot do Also a Copy-hold is not an Hereditament within this Statute which extends only to Hereditaments at the common Law and not by custom Also in Acts of Parliaments which are enacted for forfeiture of Lands Tenements and Hereditaments by those words they shall not forfeit Copy-holds Clark Baron this Statute was made to restrain Recusants from taking the benefit of their Livings and Copy-holds are their Livings as well as Free-holds and by this Statute the Queen shall not have every estate in the Copy-hold Land but only the taking of the profits but the scope of the Statute was to impair the Livings of Recusants and that by driving of them for want of maintenance to repair to the Church Walmesley If the Statute had given to the Queen to seise two parts of their livings then the Statute had extended to Copy-holds Manwood when a Statute is made to transfer an estate by name of Lands Tenements and Hereditaments the Copy-hold is not within such Statute but if the Lords Signiory his Customs and Services are not to be impeached or taken away by such Statute then it is otherwise for such Statute doth not make another Tenant to the Lord And by him Copy-holder shall pay Subsidies and he shall be assessed according to the value of his Copy-hold as well as of his Freehold and in this Case the Queen is to have the profits of the Lands only but no estate At another day the case was argued for the Recusants by Snag Serjeant and he said that these words Lands Tenements and Hereditaments are to be construed which are such at the Common Law not by Custom If I give to one all my Lands Tenements and Hereditaments in D. my Copy-holds do not pass and Statutes which are made to take away Possessions and Hereditaments out of persons ought to be strictly taken and not by Equity The Statute of 13 Eliz. of Bankrupts enacts that the Commissioners may sell the Lands and Tenements of the Bankrupts if the Statute had not made a further provision the Commissioners could not sell Copy-hold Lands but there are express words in the Statute for that purpose i.e. as well copy as fee Also the Staute of 13 Eliz. cap. 4. of Auditors and Receivers of the Queen doth not extend to Copy-holds And it should be a great prejudice to the Lords of such Copy-holds that the Queen should have the Land. Popham the intention of the Law somtimes causes a liberal construction of a Statute in the letter of it What Statutes extend to Copy-holds somtimes a strict and precise exposition and here it appeareth that the intention of the Statute was that the Queen should have all the goods of the offender and two parts of the Lands c. Leases and Farms and the Recusant but the third part of all his Lands only And therefore the Recusant is not to have any other thing but only that which is allotted to him by the Statute and that is the third part which is all the maintenance which the Law allows him and then if Copy-holds be not within this Statute a Recusant who hath great possessions in Copy-holds and hath no Free-hold should be dispunishable and hath his full maintenance against the meaning of the Statute And he said that many things are within the meaning of a Statute â—y 5. 6. Co. 3. Inst 109 Yel 60. 12 Co. 12. which are not within the words as Bonds Obligations and Specialties made to Recusants shall pass to the Queen by this Statute by force of the word goods according to the meaning of the Statute and all personal things are within the Statute c. profits of the Lands Advowsons and the like and the very scope of the Statute was to take away from Recusants all personal things whatsoever and two parts of real things as Leases Farms Lands Tenements c. with the intent that with the superfluity of their goods and possessions she should not maintain Iesuits and Seminary Priests people more dangerous than the Recusants And by him Lands in ancient demesne are liable to the penalties by the Statute although not by express words So if a Recusant hath Lands extended by him upon a Statute acknowledged unto him that Interest is not properly a Lease or Farm yet it is Land within this Statute liable c. And if I be Tenant by Elegit or Statute c. of Lands in D. not having other Lands in the said Town and I grant all my Lands in D. my Interest ut supra shall pass contrary If I have other Lands there And I grant that if I have Copy-hold Lands in D. and none other and I grant all my Lands in D. Copy-hold Land shall not pass by such assurance because that Copy-hold cannot pass but by surrender If I put out a Copy-holder out of his Lands the same is a Disseisin to the Lord of whom the Copy-hold is holden And if I levy a Fine of such Lands and five years pass not only the Lord is bounden as to his Free-hold and Inheritance but also the Copy-holder for his possession for the intent of the Statute of 4 H. 7. was to take away controversies litibus finem imponere 5 Co. 124. and contention may be as well for Copy-hold as for Land at the common Law. One hath a Lease for years to begin at a day to come he who hath the Free-hold thereof is disseised the Disseisor levieth a Fine five years pass he who hath the Free-hold is bound by it but not he who hath the Interest for years in futuro as it hath been lately adjudged But he said That if that point were to be handled again the Law would be taken to the contrary but it is clear that a Lease in possession shall be bound by such Fine And as unto any prejudice to the Lord it is clear that notwithstanding that the Queen hath the Copy-hold Land yet the Lord shall have the Rent during the possession of the Queen which is the
most valuable part of the services of the Copy-holder The Statute of 1 E. 6. of Chantries doth extend to Copy-hold by the general words Lands Tenements and Hereditaments for otherwise the Proviso which excepts Copy-holds were not necessary And in our Statute the words are Lands Tenements and Hereditaments which are forceable words which proves that our exposition to extend it to Copy-holds is proper and agreeable to the Statute and this in the first branch of it for Copy-hold is some Land Tenement or Hereditament the clause in this branch of the Statute is and also all other the Lands Tenements and Hereditaments liable to such seisure c. the same is to be meant of such Lands which are bound with clause of revocation of which is spoken in the former part of this Statute He who departs out of the Realm against the Statute of 5 R. 2. shall forfeit his goods and thereby his debts also The King grants omnia bona catalla felonum Debts of Felons shall pass Ergo Copy-holds also 2 Lâ—n 56. Post 201. 202. by the name of Lands Tenements c. as well as debts by the name of goods In our Case the meaning of the Statute was that the Queen should have two parts of the whole estate of the Recusant be it Copy-hold Ancient demesne c. If upon the Statute of Bankrupts a Copy-hold estate be sold to the King the King shall pay the Rent but shall not do any of the services and in so much the Lord shall be prejudiced patiatur etiam hic rather than Recusants should not be punished and it is not a strange thing in Law that the Lord of a Copy-holder should be prejudiced for the offence of his Tenant as where a Copy-holder is outlawed the King shall have the profits of his Copy-hold Lands and the Lord hath not any remedy for his Rent CXXVII Stebbs and Goodlacks Case Pasch 30 Eliz. In the Kings Bench. BEtwixt Stebbs Goodlack the Case was the Parson of Letcome in the County of Berks libelled in the Spiritual Court for Tithes Fraud shall not avoid payment of Tithes the Defendant shewed that the custome of the Town of Letcome is that the Parson shall have for his Tithes the tenth Land sowed with any manner of corn and he shall begin his reckoning always at the first Land which is next to the Church c. The Parson shewed that the Defendant by fraud and covin sowed every tenth Land which belonged to the Parson ut supra very ill and with small quantity of corn and did not dunge or manure it as he did the other nine parts by means whereof whereas the other nine every of them yielded eight Cocks the tenth yeilded but three Cocks and for this matter the Parson libelled in the Spiritual Court and confessed the custome but for abusing of the custom prayed to have his Tythes in kind the Defendant prayed a prohibition and the Parson afterwards a consultation And the opinion of Wray Iustice was that the custom was against common reason and so void but if it be a good custom then the Parson shall have the Action upon the case CXXVIII Rumney and Eves Case Pasch 30 Eliz. In the Kings Bench. Copy-holder IN Ejectione firmae by Jane Rumney against Lucie Eve it was holden that if customary Land do descend to the younger Son by custom and he enters and leaseth it to another who takes the profits and after is ejected Poph. 39. 4 Co. 22. That he shall have an Ejectione firmae without any admittance of his lessor or presentment that he is heir For which the Defendant shewed that there were thirty years incurred betwixt the death of the Father and the making of the Lease so that here is supina negligentia which shall disable his person to make any demise quod fuit concessum In answer of which it was said that the Lessor at the time of the death of his Ancestor was but of the age of two years and that after his full age no Court had been holden for a long time and that at the first Court that was holden which was of late he prayed to be admitted but the Steward refused to admit him and the same was holden a good excuse of his negligence And it was holden that the Plaintiff ought not to shew that the Lease is warranted by the custom 1 Cro. 469. 483. 717. 728. Ante 16. but that shall come of the other side and so it had been lately adjudged which Wray granted And by him if a Copy-holder surrender in extremis to the use of himself for life c. If he shall be well again the surrender shall stand 4 Len. 30. 31. 8 Co. 100. for he hath reserved an estate to himself It was further holden in this Case that if a Copy-holder dieth his Heir within age he is not bound to come at any Court during his non-age to pray admittance or to tender his Fine Also if the death of the Ancestor be not presented nor proclamations made he is not at any mischeif although he be of full age CXXIX Saint-John and Petits Case Pasch 30 Eliz. In the Kings Bench. IT was covenanted betwixt Saint-John and Petit that Saint-John should present Petit to the Church of A. and that afterwards Petit should lease the Parsonage to Saint-John or to any other person named by him and that the said Petit should not be absent by eighty days and that he should not resign and Petit was bound to perform these Covenants Petit is presented to the Benefice Saint-John brought an Action upon the Obligation pretending that he could not enjoy his lease by reason of the absence of the said Parson c. And the Lease was made to the Curate at the nomination of Soint-John The Parson said that the Obligation is void by the Statute of 14 Eliz. cap. 11. See the Statute All Leases c. made by any Curate shall be of no better force than if it had been made by the beneficed Parson himself Tanfeild by 13 Eliz. 20. When a Parson leaseth to his Curate who leaseth over The Statute doth not make the Lease void by any absence of the Parson but of the Curate by forty days Quaere For that it seemeth that by the Statute of 14 Eliz. the Curate cannot lease c. CXXX Gates and Halliwels Case Pasch 30 Eliz. In the Kings Bench. BEtwixt Gates and Halliwel the Case was one having two Sons 3 Len. 55. devised that his eldest Son with his Executors should take the profits of his Lands until his youngest Son should come to the age of two and twenty years and that then the said youngest Son should have the Land to him and the Heirs of his body It was holden clearly by the whole Court that the eldest Son should have Fee in the interim until the youngest Son came to the said age CXXXI Prowse and Carys Case Pasc 30 Eliz. In the
And at another day Wray said Dy. 179. that partition by Tenants in common without deed wheresoever it is made is good but in this case it appears that the parties who made the partition were in the house for they were Tenants in common of the Messuage and a close adjoyning to it and made partition that one should have the house 6 Co. 12. and the other the close so as they were not upon the close when they made the partition and then it was void for the close and if for the close then also for the house And Iudgment was given accordingly CXXXVII Cook and Songats Case Pasch 30 Eliz. In the Kings Bench. IN an Action upon the case by Cook against Songat the Plaintiff declared Quod cum quaedam Lis and controversie had been moved betwixt the Plaintiff Lord of the Manor c. and the Defendant claiming certain Lands parcel of the said Manor to hold it by copy and whereas both parties submitted themselves to the Iudgment and Arbitrament of I. S. Counsellor at Law concerning the said Land and the title of the Defendant to it The Defendant in consideration that the Plaintiff promised to the Defendant that if the said I. S. should adjudge the said Copy to be good and sufficient for the title of the Defendant that then he would suffer the Defendant to enjoy the said Land accordingly without molestation The Defendant reciprocally promised the Plaintiff that if the said I. S. should adjuge the said Copy not sufficient to maintain the title of the Defendant that then he would deliver and surrender the possession of the said Land to the Plaintiff without any sute And shewed further that I. S. had awarded the said Copy utterly insufficient c. yet the Defendant did continue the possession of the Land c. And by Godfrey here is not any consideration But by Gawdy the same is a good and sufficient consideration because it is to avoid variances and sutes And Iudgment was given for the Plaintiff CXXXVIII Pawlet and Lawrences Case Pasc 30 Eliz. In the Kings Bench. GEorge Pawlet brought an Action of Trespass against one Lawrence Parson of the Church of D. for the taking of certain Carts loaded with Corn which he claimed as a portion of Tythes in the Right of his Wife and supposed the Trespass to be done the seven and twentieth of August 29 Eliz. upon Not guilty it was given in evidence on the Defendants part that the Plaintiff delivered to him a Licence to be married bearing date the eight and twentieth of August 29 Eliz. and that he married the Plaintiff and his said Wife the same day so as the Trespass was before his title to the Tythes And it was holden by the whole Court that that matter did abate his Bill But it was holden that if the Trespass had been assigned to be committed one day after that it had been good but now it is apparent to the Court that at the time of the Trespass assigned by himself the Plaintiff had not Title and therefore the Action cannot be maintained upon that evidence for which cause the Plaintiff was Non-suit CXXXIX Sir John Braunches Case Mich. 30 Eliz. In the Kings Bench. Forfeiture IN the Case of Sir John Braunch it was said by Cook that if a Copy-holder be dwelling in a Town long distant from the Manor a general warning within the Manor is not sufficient but there ought to be to the person notice of the day when the Court shall be holden c. For his not coming in such case cannot be called a wilful refusal Copy-holder So if a man be so weak and feeble that he cannot travel without danger so if he hath a great Office c. these are good causes of excuse It was also holden that if a Copy-holder makes default at the Court and be there amerced although that the amercement be not estreated or levyed yet it is a dispensation of the forfeiture Gawdy Iustice If the Copy-holder be impotent the Lord may set a Fine upon him and if he will not pay the Fine then it is reason that he shall forfeit his Land. Egerton Sollicitor Warning to the person of the Copy-holder is not necessary for then if the Lord of a Manor hath one Copy-holder of it dwelling in Cornwal and another in York c. the Lord ought to send his Bayliff to give notice of the Court to them which should be very inconvenient and by him continual default at the Court doth amount to a wilful refusal And by the whole Court general warning within the Parish is sufficient 1 Cro. 353. 505. 506. for if the Tenant himself be not Resient upon his Copy-hold but elsewhere his Farmer may send to him notice of the Court And it was further given in evidence that Sir John Braunch had by his Letter of Attorney appointed the Son of his Farmer his Attorney to do the services for him due for his said Copy-hold And it was holden that such a person so appointed might essoin Sir John but not do the services for him for none can do the same but the Tenant himself CXL Wilkes and Persons Case Mich. 30 Eliz. In the Kings Bench. JOhn Wilkes and Margery his Wife and Thomas Persons brought Trespass Quare clausum fregit herbam suam messuit foenum suum asportavit Trespass ad damnum ipsius Johannis Margeriae Thomae And exception was taken that it was not the Hay of the Wife nor she was not damnified by it but her Husband Wray Iustice the Declaration is good enough 1 Cro. 96. Record for although it be not good for the Hay yet clausum fregit herbam messuit makes it good And Iudgment was given for the Plaintiffs CXLI Atkinson and Rolses Case Mich. 30 Eliz. In the Common Pleas. IN an Action upon the case by Atkinson against Rolfe the Plaintiff declared that the Defendant in consideration of the love which he â—ore unto A. his Father did promise that if the Plaintiff would procure a discharge of a Debt of I. S. which his said Father owed to the said I. S. that he would save the Plaintiff harmless against the said I. S. And declared further that he had discharged the Father of the Defendant from the said Debt and is become bounden to the said I. S. in an Obligation for the payment of the said Debt upon which Obligation the said I. S. hath sued the Plaintiff and hath recovered and had execution accordingly and so hath not been saved harmless c. It was objected that the Declaration was not good because the Plaintiff hath not shewed in his Declaration that he had given notice to the Defendant of the said Obligation or of the suit brought against him but that was not allowed but the Declaration was holden to be good notwithstanding the exception Shuttleworth if I be bound to make to you such an assurance as I. S. shall devise I am bound
in the Case which gives cause of suit in Chancery for they will not order a matter there which is directly against a Rule and Maxim of the common Law. As if a Feme Covert be bound c. and the Obligee bring her into the Chancery and if a man threaten me that if I will not pay to him ten pounds he will sue me in Chancery upon which I promise to pay it him no Action will lye And an Infant is not chargeable upon any contract but for his meat drink and necessary Apparel 19 Z. 4. 2. And in Debt upon such necessary Contract the Plaintiff ought to declare specially so as the whole certainty may appear upon which the Court may judge if the expense were necessary and convenient or not and upon the reasonableness of the price for otherwise if the necessity of the thing and reasonableness of the price doth not appear the Chancellor himself would not give any remedy or recompence to the party Wray Justice conceived that the Action would not lye for the contract was void and the Infant in an Action against him upon it may plead Nihil debet And if an Infant sell goods for money and doth not deliver them but the Vendee takes them he is a Trespassor but if the Infant had been bounden in an Obligation with a surety and afterwards at his full age he in consideration thereof promiseth to keep his surety harmless upon that promise an Action lyeth for the Infant cannot plead non est factum which see Mich. 28 29 Eliz. in the Case of one Edmunds And afterwards it was adjudged against the Plaintiff CLVII Charnock and Worsleys Case Trin. 30 Eliz. Rot 833. In the Kings Bench. Owen 21. 1 Cr. 129. CHarnock and his Wife brought a Writ of Error against Worsley the Case was that the Husband and Wife the Wife being within age levyed a Fine and the Wife upon inspection was adjudged within age it was moved if the Fine should be utterly reversed or as to the Wife only should stand against the Husband by Godfrey the Book of 50 E. 3. 6. was vouched where it is said by Candish that where such a Fine is reversed the Plaintiff shall not have execution till after the death of the Husband and by Coke and Atkinson a Fine acknowledged by the Husband and Wife is not like to a Feoffment made by them for in case of Feoffment something passeth from the Husband but in case of a Fine all passeth out of the Wife and the Conusee is in by her only And Atkinson shewed a Precedent in 2 H. 4. where the Fine was reversed for the whole and also another Precedent P. b. H. 8. Rot. 26. A Fine levyed betwixt Richard Elie Plaintiff and N. Ford. and Jane his Wife Deforceants the Wife being within age and Iudgment was given quod finis praedict adnulletur pro nullo penitus habeatur and that the Husband and Wife should be restored and thereupon a Writ issued to the Custos Brevium to bring into Court the Foot of the Fine and it was presently cancelled in Court. Wray this is a strong Precedent and we will not varse from it if other Precedents are not contrary Gawdy who was the same day made Iustice the Fine cannot be reversed as to one and stand as to the other and resembled it to the Case of Littleton 150. where Land is given to Husband and Wife in tail before coverture and the Husband aliens and takes back an estate to him and his Wife for their lives they both are remitted for the Wife cannot be remitted if the Husband be not remitted And a Precedent was cited to the contrary 7 Eliz. where the Case was that the Husband and Wife levyed a Fine the Husband died the Wife being within age the Wife took another Husband and they brought a Writ of Error and the Wife by inspection adjudged within age Fine reversed as to one to stand good against another and the Fine was reversed as to the Wife and her Heirs And it was argued by Golding that here the Writ of Error ought to abate for the Writ is too general whereas it ought to be special Ex querela A.B. nobis humillime supplicantis accepimus c. See the Book of Entries 278. Also the purclose of the Writ is ad damnum impsorum the Husband and the Wife whereas the Wife only hath loss by it and as to the Fine it self he conceived that it should be reversed but as to the Wife as if a man of full age and a man within age levy a Fine in a Writ of Error brought the Fine shall be reversed as to the Infant only and shall stand against the other and he cited the Case of the Lord Mountjoy 14. Eliz. Where a man seised in the right of his Wife acknowledged a Statute and afterwards he and his Wife levyed a Fine and he said that during the life of the Husband the Conusee of the Fine should hold the Land charged with the Statute Also in the Precedent of 2 H. 4. the Iudgment is that propter hunc alios errores the Fine should be reversed and I conceive that another Error was in the said Writ for which the Fine might be reversed in all viz. the Fine was levyed of two parts of the Manor of D. without saying in tres partes dividend And see that where two parts are demanded in a Writ 3 Co. 58 59. Modern Rep. 182. the Writ shall say so Brief 244 Coke contrary and as to the last matter I confess the Law is so in a Writ but not in a Fine for the same is but a Conveyance for it I be seised of a Manor and I grant to you two parts of the said Manor it is clear it shall be intended in three parts to be divided And as to the principal matter I conceive when the Fine is levyed by the Husband and Wife it shall be intended that the Land whereof c. is the Inheritance of the Wife if the contrary be not shewed and therefore if the party will have an especial Reversal he ought to shew the special matter as in Englishes Case A Fine was levyed by Tenant for life and he in the reversion being within age bringeth a Writ of Error now the Fine shall be reversed as to him in the Reversion but not as to the Tenant for life but here it shall be intended the Inheritance of the Wife and that the Husband hath nothing but in the right of his Wife and therefore she shall be restored to the whole for nothing passeth from the Husband but he is named with his Wife only for conformity 11 H. 7. 19. A. takes to Wife an Inheretrir who is attainted of Felony the King shall not have the Land presently by which it appeareth that all is in the Wife and she shall be restored to the whole and the Iudgment shall be according to the Presidents cited
of the Informer And afterwards by Award of the Court it was ruled that that Entry by the Attorney is not any Barr quoad the Informer so if the Queen be Nonsuit so the Nonsuit of the Informer is no Barr against the Queen And Wray said that such was the opinions of Anderson and Gawdy Iustices c. CLXII The Queen against Lewis Green and others Trin. 30 Eliz. In the Kings Bench. Intrat Hill. 30 Eliz. Rot. 10. AN Information for the Queen against Lewis Green and others Grants of the King. 2 Roll. 51. 1 Co. 46. The Case was King E. 6. was seised of the Manor of Stepneth and twenty acres of Lands in Stepneth called Stepneth Marsh and of another Marsh also called Stepneth Marsh and granted unto the Lord Wentworth and his Heirs the Manor of Stepneth in the County of Midd. Nec non mariscam in Stepneth appel Stepneth Marsh in com praedict nec non omnia terr ten eidem Manerio five premissis pertinent And if twenty Acres called Stepneth Marsh not parcel of the said Manor pass or not was the Question Cook that they shall pass Here this grant doth consist of three parts 1. The grant of the Manor 2. Nec non mariscum in Stepneth 3. Nec non omnia terras tenementa dicto Manerio sive praemissis pertinen And by the second clause these twenty acres shall pass be the same parcel or not and the latter words cannot refer to that for it is certainly expressed before And the case lately agreed in the Court of Wards betwixt Bronker and Robotham was cited which was That the King being seised of the Manor of Sandridge and Newnam parcel of the possessions of the Monastery of Saint Albans and part of the Manor of Newnam extended into the Parish of Sandridge and the King granted the Manor of Sandridge nec non omnia terras tenementa sua in Sandridge dicto nuper Monasterio pertinen nec non omnia terras tenementa sua dicto Manerio de Sandridge pertinen By which grant although that the latter clause doth restrain it to the Manor of Sandridge yet the general words of the second clause shall extend to make pass all the whole Manor of Newnam which extended into the Parish of Sandridge a Decree was in the said Court accordingly Hob. 175. 303. Dy. 207. 6 Co. 39. At another day the case was argued and the case put to be thus King E. 6. was seised of the Manor of Hackney and Stepneth in the County of Midd. within which was a great Marsh called Stepneth Marsh parcel of the Manor of Stepneth which the King had by exchange of the Bishop of London and there were also twenty acres of Lands which were lying in Stepneth Marsh and were known by the name of Stepney Marsh late parcel of the possessions of the Priory of Grace and granted unto the Lord Wentworth and his Heirs Dominia sive Maneria sua de Hackney Stepney nec non mariscos suos de Stepney in Stepney praedict nec non omnia Maneria terras tenem mariscos dictis Maneriis aut caeteris praemissis pertinen If these twenty acres pass in the general words in the first Nec non or if the words in the second Nec non dictis Maneriis pertinen doth restrain the generality of the first words was the question And by Phillips the twenty acres do not pass for the grant of the King shall be always taken to a common intent And because here the King hath these Marshes by several titles that Marsh only shall pass which by general entendment shall be intended to pass scil the great Marsh which was in truth parcel of the Manor of Stepney and not the twenty acres which the King hath by a special title although that ex vi termini the grant may extend unto it Also the grant of the King shall be taken secundum intentionem Regis Grants of the King taken according to his intent and not in deceptionem and here it appearth that the intent of the King was not that these twenty acres should pass i. the King grants Maneria sua terras and all Lands c. iisdem pertinen but it is not part of any thing pertinen to those twenty acres therefore his intent was not to pass them Secondly the grant is to have them as fully as the Bishop of London had them without mentioning of the Prior. Thirdly as fully as the Bishop had granted them to us but the Bishop had not granted these twenty acres to the King. Fourthly in the Letters Patents the King recites the value of the Manor of Hackney and Stepney but no value of the twenty acres Quaere what difference there is betwitxt Stepney Marsh and the Marsh of Stepny As to the first the grant is iisdem ita praemissis pertinen which word praemissis includes the premisses or otherwise should be void Secondly the words as the Bishop had and as amply as we have from the Bishop are suplusage nihil operatur by them And if the King had not the same of the Bishop it is not material but they shall pass notwithstanding because by a special name As if the King grants to me Manerium de Dale quod à nobis nuper concelat fuit and in truth it ws not concealed yet it shall pass by his special name But if the grant had been Proviso that if the said Manor were concealed c. the same had been good for it is good by way of Proviso but not by reference As to the valuation the same is not material for who can restrain the bounty of the King. 29 E. 3. 7. and 8. The King granted omnes Advocationes pertinend to such a Priory quas nuper concessimus patri of the Patentee although the King had not ever made such a grant yet it is a good grant to the Sons causa qua supra Gawdy Iustice conceived that the twenty acres did pass and he confessed the case betwixt Bronkor and Robotham to be good Law for there the intention is fully that all appertaining to the Monastery whether it were parcel of the Mannor of Newnam or of Sandridge passeth 6 E. 6. 8. Dyer A man leaseth all his Meadows in A. containing ten acres whereas in truth they are twenty acres all passeth c. And if the King grant the Manor of D. to A and further saith Damus concedimus so freely as I. S. had it and I. S. never had it yet the grant is good And as to the misrecital of the value the same is helped by the Statute Clench Iustice to the same intent and the Iury hath found that the twenty acres are parcel of Stepney Marsh Wray to the same intent Against express words no favour shall be given to the King. And note that the Marshes pertaining to the Manor are in the third clause ergo the Marsh in the second clause shall be intended a Marsh in gross or
not set down any place or time of the notification of his contentment for the same is traversable Gawdy The Issue here is non Assumpsit Assumpsit and therefore that matter is out of the Book Cook If one assume to pay twenty pounds to another upon request although the Defendant plead non Assumpsit yet if the place and time of request be not shewed Iudgment many times hath been stayed for no Action without a Request so here without notification of his contentment no Action therefore he ought to shew it Gawdy The ground of this Action is the Assumpsit but that cannot be certain without Declaration and thereof notice ought to be given to make certainty of the duty but not to enforce the promise but in our case without a Request Assumpsit will not lye But here it being but conveyance the certainty of the time and place is not necessary to be shewed but the general form shall serve for it is but inducement As if a man will plead a devise of goods to him and assent of the Executors to take them he need not to shew the time and place of the assent Gawdy at another day said that Iudgment ought to be given for the Plaintiff the Assumpsit is the ground and cause of the Action and the shewing of the contentment is only to reduce the Action to certainty And Iudgment was given for the Plaintiff CLXVIII Musket and Coles Case Trin. 30 Eliz. In the Kings Bench. WIlliam Musket brought an Action upon the Case against Cole 1 Cro. 13. and declared that in consideration that the Plaintiff had payed unto the Defendant forty shillings for the Debt of Symon his Son the Defendant promised to deliver to him omnes tales billas Obligationes in which his Son was bounden to him which thing he would not do and it was found by Verdict for the Plaintiff And it was moved for stay of Iudgment because the Plaintiff had not averred in his Declaration that the said Defendant had Bills or Obligations in which Simon his Son was bounden to the Defendant Averment for if there were none then no damage And see Onlies Case 19 Eliz. Dyer 356. D. in consideration that the Plaintiff had expended divers sums of money circa the businesses of the Defendant promised c. Exception was taken to that Declaration by Manwood and Mounson Iustices because it was not shewed in what businesses certain and betwixt what persons Gawdy The Plaintiff here is not to recover the Bills or Obligations but damages only and therefore needeth not to alledge any Bills in certain And 47 E. 3. 3. A. covenants with B. to assure unto B. and his Heirs omnia terras tenementa quas habet in such Counties and for not assurance an Action of Covenant was brought and the Plaintiff declared that the Defendant had broken the said Covenant and that he had required the Defendant to make a Feoffment unto him of all his Lands and Tenements in the said Counties and the plea was not allowed for the Land is not in demand but only damages to be recovered See also 46 E. 3. 4. and 20 E. 3. And in the principal case the Plaintiff had time enough for the shewing to the Iury what Bills or Obligations for the instructing of the Iury of the damages CLXIX English and Pellitary and Smiths Case Trin. 30 Eliz. In the Kings Bench. Assault and Battery 1 Cro. 139 140. IN an Action of Trespass of Assault and Battery and wounding The Defendants say that they were Lessees of certain Lands and the Plaintiff came to the said Lands and took certain Posts which were upon the Lands and they gently took them from him S. pleaded that he found the Plaintiff and P. contending for the said Posts and he to part them mollite put his hands upon the Plaintiff which is the same c. The Plaintiff replyed De injuriis suis propriis absque tali causa per ipsos P. S. allegat upon which issue was joyned which was found for the Plaintiff It was moved in arrest of Iudgment that here was not any issue for the Plaintiff ought severally to reply to both pleas aforesaid for here are several Causes of Iustification and his Replication absque tali causa Nomen Collectivum Post 139. Dy. 182. doth not answer to both Cook This word Causa is nomen Collectivum which may be referred to every Cause by the Defendants alledged reddendo singula singulis and their Iustifications are but one matter and the Defendants might have all joyned in one plea. Wray Both pleas depend upon one matter but are several causes for two justifie by reason of their Interest and the third for the preservation of the Peace And by him and the whole Court although it be not a good form of pleading yet by reasonable construction this word Cause shall be referred to every cause and so the pleading shall be maintained And afterwards Iudgment was given against the Plaintiff CLXX Cater and Boothes Case Trin. 30. Eliz. In the Kings Bench. Intrat Hill. 30 Rot. 58. or 581. IF a Writ of Covenant the Plaintiff declared that the Defendant by his deed bearing date the first of October 28 Eliz. did covenant that he would do every act and acts at his best endeavour to prove the Will of I. S. or otherwise Covenant that he would procure Letters of Administration by which he might convey such a Term lawfully to the Plaintiff which he had not done licet saepius requisitus c. The Defendant pleaded that he came to Doctor Drury into the Court of the Arches and there offered to prove the Will of the said I. S. but because the Wife of the said I.S. would not swear that it was the Will of her Husband they could not be received to prove it Vpon which it was demurred in Law. It was moved by Williams that the Action doth not lie for there is no time limited by the Covenant when the thing should be done by the Defendant for which he hath time during his life for as much as it is a collateral thing See 15 E. 4. 31. if there be not a Request before but admit that the Covenant had been to perform upon request Request then the Plaintiff in his Declaration ought to have shewed an express request with the place and time of it for that is traversable See 33 H. 6. 47 48. 9 E. 4. 22. Gawdy If the Covenant had been eypresly to do it upon request there the request ought to be shewed specially But when a thing upon the exposition of the Law only is to be done upon Request such Request alledged generally is good enough And by Wray the Covenantor hath not time during his life to perform this Covenant but he ought to do it upon request within convenient time but in some case a man shall have time during his life as where no benefit shall be to any of the
the Plaintiff and thereupon Iudgment was given for the Plaintiff CCV Read and Nashes Case Trin. 31. Eliz. In the Kings Bench. IN an action of Trespass by Read and his Wife against Nash for entring into a house called the Dayry-house upon Not guilty pleaded The Iury found this special matter Sir Richard Gresham Knight was seised in Fee of the Mannours of I. and S. and of diverse other Lands mentioned in his Will and 3 Edw. 6. devised the same to Sir Thomas Gresham his Son for life the Remainder to the first son of the said Sir Thomas Gresham in tail the Remainder to the second son c. the Remainder to the third son c. The Remainder to Sir John Gresham his brother Proviso That if his Son go about or made any Alienations or discontinuance c. whereby the premisses cannot remain descend and come in the form as was appointed by the said Will otherwise than for Ioyntures for any of their Wives for her life only or leases for 21. years whereupon the old and accustomed Rent shall be reserved That then such person shall forfeit his estate Sir John Gresham dyed Sir Thomas Gresham his son built a new House upon the Land and 4 Mariae leased to Bellingford for one and twenty years rendring the antient Rent And afterwards 2 Eliz. he levyed a fine of the said Manours and of all his Lands and 5 Eliz. he made a Iointure to his Wife in this manner sci He covenanted with certain persons to stand seised to the use of himself and his Wife for their lives and afterwards to the use of his Right Heirs and afterwards 18 Eliz. he leased unto Read and his wife for one and twenty years to begin presently which was a year before the expiration of the said Lease made unto Bellingford which Lease being expired Read entred It was argued by Cook That here upon the words contained in the Proviso Sir Thomas had power and authority not being but Tenant for life to make a Lease for years or Iointure and that upon implication of the Will which ought to be taken construed according to the intent of the parties for his meaning was to give a power as well as an estate otherwise the word otherwise should be void and it is to be observed That the parties interessed in the said conveyance were Knights and it is not very likely That the said Sir Richard Gresham did intend that they should keep the Lands in their own manurance as Husbandmen but set the same to Farm for Rent And it is great Reason although he willeâ— that the order of his Inheritance should be preserved yet to make a Provision for Iointure and it is great reason and cause to his family to enable and make them capable of great Matches which should be a strengthning to his posterity which could not be without great Iointures wherefore I conceive it reasonable to construe it so That here they have power to make Iointures for their Wives It hath been said That no grant can be taken by implication as 12 E. 3. Tit. Avow 77. Land was given to I. and A. his wife and to the heirs of the body of I. begotten and if I. A. dy without heir of their bodies betwixt them begotten that then it remain to the right heirs of I. and it was holden that the second clause did not give an estate tail to the wife by implication being in a grant but otherwise it is in Case of a devise as 13 H. 7. 17. and there is no difference as some conceive when the devise is to the heir and when to a stranger but these cases concern matter of Interest but our case concerns an Authority And admit that Sir Thomas hath power and authority to make this lease Then we are to consider if the Iointure be good for if it be Then being made before the Lease Use cannot rise out of a power it shall take effect before and the woman Iointress is found to be alive But I conceive That this Iointure is void and then the Lease shall stand for an use cannot rise out of a power but may rise out of an estate of the Testator and out of his Will 19 H. 6. A man deviseth That his Executors shall sell his reversion and they sell by Word it is a good Sale for now the Reversion passeth by the Will. But an use cannot be raised out of an use and a man cannot bargain and sell Land to another use than of the Bargainee And it is like unto the case of 10 E. 4 5. The disseisee doth release unto the disseisor rendring Rent the render is void for a rent cannot issue out of a right so an use cannot be out of a Release by the disseisee for such release to such purpose shall not enure as an Entry and Feoffment Also here after that conveyance Sir Thomas hath built and erected a New house and no new Rent is reserved upon it and therefore here it is not the ancient Rent for part of the sum is going out of the new house But as to that It was said by the Iustices do not speak to that for it appears that the Rent is well enough reserved Another matter was moved for that That a year before the Expiration of the Lease made to Billington this Lease was made to Reâ—d for 21 years to begin presently from the date of it although by the same authority he cannot make Leases in Reversion for then he might charge the Inheritance in infinitum But yet such a Lease as here is he might make well enough for this Lease is to begin presently and so no charge to him in the Reversion as in the Case betwixt Fox and Colliers upon the Statute of 1 Eliz. A Bishop makes a Lease for three years before the Expiration of a former Lease to begin presently It was holden a good Lease to bind the Successor for the Inheritance of the Bishop is not charged above one and twenty years in toto But if a Bishop make a Lease for years and afterwards makes a Lease for three lives the same is not good 8 Eliz. Dy. 246. Tenant in tail leaseth to begin at Michaelmas next ensuing for twenty years it is a good Lease by the Statute of 32 H. 8. so is a lease for 10 years and after for eleven years and yet the Statutes are in the Negative but this power in our Case is in the Affirmative and the Inheritance is not charged in the whole with more than one and twenty years CCVI. Kinnersly and Smarts Case Trin. 31 Eliz. In the Kings Bench. 〈◊〉 upon a usurious Contract 1 Cro 155. IN Debt upon a Bond The Plaintiff declared That the Bond was made in London The Defendant pleaded That an usurious Contract was made betwixt the parties at D. in Stafford-shire that the Obligation was made for the same contract The Plaintiff by Replication saith that the Bond was made bona
as a Will but as an Executory Devise Wray It is not a conditional Estate in Fee but an Estate tail Coke They who would prove the Custom to entail Copyhold Land within a Manor it is not sufficient to shew Copies of Grants to persons and the Heirs of their bodies Copyhold Estate but they ought to shew that surrenders made by such persons have been enjoyed by reason of such matter VVray That is not so for Customary Lands may be granted in tail and yet no surrenders have been made within time of memory CCXLV Matthew and Hassals Case Mich. 31 Eliz. In the Kings Bench. IN an Ejectione firmae betwixt Matthew and Hassal the Plaintiff had Iudgment to recover and the Defendant brought a Writ of Error Error 1 Cro. 144. and assigned Error in this that the Iudgment was entred Quod querens recuperet possessionem c. where it should be Terminum vent in ten praedict See 9 Eliz. Dyer 258. Coke contrary That the Iudgment is good enough for the Writ of Execution upon it is Habere facias possessionem and in a real Action the Writ is Quod perens recuperet sesinam and not terram And afterwards Iudgment was affirmed CCXLVI Tempest and Mallets Case Hill. 31 Eliz. In the Kings Bench. IN an Action of Trespass by Tempest against Mallet Iudgment was given and Eror brought and assigned for Error 1 Cro. 153 145. that whereas the Action was brought against four one of them died Mesne betwixt the Award of the Nisi prius and the Inquest taken And it was said on the part of the Defendant in the Writ of Error which was entred upon the Record that the Plaintiff shewed unto the Court the death of one of the Defendants and prayed Iudgment against the others See 4 H. 7. 2 Eliz. 175. And there is a difference where in an Action of Trespass there is but one Defendant and where many Another Error was assigned the Defendant Obtulit se per Higgins Attornat suum without shewing his Christian Name as John or VVilliam for Higgins only without the Christian Name is not any Name for it is but an addition to shew which John or VVilliam Coke The same is helped by the Statute of 32 H. 8. cap. 30. Where it is enacted that after Verdict Iudgment shall be given notwithstanding the lack of Warrant of Attorney of the party against whom the Issue shall be tried or any default or negligence of any the parties their Counsellors or Attorneys and of necessity this default here in the Christian Name ought to be the fault of one of them See also 18 Eliz. Cap. 14. for want of any Warrant of Attorney c. Glanvil The Statute provides for default of Warrant of Attorney c. Then Coke To what end was the Statute of 18 Eliz. made for the Statute of 32 H. 8. provides for defects of Warrants of Attorney Glanvil The first Statutes for Warrants of Attorneys of such persons against whom the Issue was tryed but the later Stat. is general Another Error was assigned Quod defendens Capiatur where the Offence so the Fine is pardoned by Parliament and therefore the entry of the Iudgment ought to be Et de fine nihil quia perdonatur Coke The Iudgment is well enough for in every general Pardon some persons are excepted it doth not appear if the Defendant here were one of them and then the Fine is not pardoned 1 Cro. 768. 778. 3 Cro. 22. for the Court cannot take notice of that as it was holden in Serjeant Harris Case but if the Defendant be charged with the Fine then he ought to plead the pardon and to shew that he was not any of the persons excepted And afterwards at another day the Defendant did alledge that there was a Warrant of Attorney in the Common Pleas. And also it appeareth upon Record that the Defendant did appear upon the Supersedeas by Attorney who had his full Name and therefore prayed a Certiorari de novo to certifie the same matter vide 9 E. 4. 32. VVray A Case here greatly debated betwixt the Lord Norris and Braybrook In nullo est erratum and upon Advice such a Writ of Certiorari was granted after the Plaintiff had pleaded In nullo est erratum for this Plea in nullo est erratum goes but to that which is contained within the body of the Record and not unto collateral matter scil Warrant of Attorneys And afterwards the Writ of Error was allowed and upon the day of return thereof it appeared upon the Record of Supersedeas that the Defendant did appear by such a one his Attorney But it was said by the Court that there ought to be two appearances the one upon the Supersedeas and the other when the Plaintiff declares See as to the name of the Attorney Tirrells Case 1 Mar. Dyer 93. CCXLVII. Palmer and Knowllis Case Hill. 31. Eliz. In the Kings Bench. 1 Cro. 160. PAlmer recovered Debt against Knowllis and sued Execution by Elegit upon which the Sheriff returned that he had made Execution of the lands of the Defendant by the Oath of twelve men but he could not deliver it to the party Execution for it is extended to another upon a Statute upon which the Plaintiff sued a Capias ad satisfaciendum And now came the Defendant by his Counsel and moved that after Elegit returned the Plaintiff could not resort to the Execution by Capias and therefore prayed a Supersedeas Caplas after Elegit because the Capias erronice emanavit But the whole Court was clear to the contrary for upon Nihil returned upon Elegit the Plaintiff shall have a Capias 17 E. 4. 5. See 21 H. 7. 19. A man shall have a Capias after a Fieri facias or Elegit 34 H. 6. 20. and here the special return doth amount to as much as if the Sheriff had returned Nihil Also the Statute of West 2. which giveth the Elegit is not in the Negative and therefore it shall not take away the Execution which was at the Common Law. And here is no Execution returned for after the former extent ended he ought to have a new Elegit which Wray granted And afterwards the said Knowllis was taken by force of the Capias ad satisfaciend and came into Court in the Custody of the Sheriff and the Case was opened and in the whole appeared to be worthy of favour but by the Law he could not be helped and although he instantly prayed a Supersedeas yet the same was denied unto him CCXLVIII The Church-wardens of Fetherstones Case Hill. 31 Eliz. In the Common Pleas. AN Action of Trespass was brought by the Church-wardens of Fetherstone in the County of Norfolk and declared Church-wardens 1 Cro. 145. 179. That the Defendant took out of the said Church a Bell and declared that the Trespass was done 20 Eliz. And it was found for the Plaintiffs And now it was moved by
in such manner and form as I my self did hold the same and no otherwise Tenant for life died within the Term and he in the Reversion entred and the Lessee brought an action of Covenant Godfrey The action doth not ly for here is not any warranty for the Plaintiff is not Lessee but Assignee to whom this Warranty in Law cannot extend but admit that the Warranty doth extend to the Plaintiff yet it is now determined with the estate of the Tenant for life and so the Covenant ended with the estate See 32 H. 6. 32. by Littleton 9. Eliz. Dyer 257. Covenant And if Tenant in tail make a Lease for years ut supra and afterwards dieth without issue the Covenant is gone and after Iudgment was given against the Plaintiff CCLV. Fish Brown and Sadlers Case Intrat Mich. 29 Eliz. Rot. 606. Trin. 31. Eliz. In the Kings Bench. AN action upon the Case was brought by Fish and Brown against Sadler Hill. 29 Eliz. rot 606. and they declared Action upon the Case That they were proprietaries of certain goods which were in the possession of one A. against which A. Sadler one of the Defendants had commenced a feigned and covenous suit in the Ecclesiastical Court in the Name of one Collison to the intent to get the said goods into his possession of which the Plaintiffs having notice and to the intent that the said Plaintiffs should suffer the Defendant to recover and obtain the said goods by the said suit the Defendant did promise to the Plaintiffs to render to them a true accompt of the said goods and shewed further That by the said suit the Defend did obtain the said goods by sufferance of the Plaintiff Tanfeild It is a good consideration the Plaintiffs were not parties or Privies at the beginning of the suit it is not like Onlies Case in 19 Eliz. Dyer 355. Where in an action upon the Case Onlie declared Assumpsit and consideration That the Defendant Countess c. being a Widow had divers suits and businesses and that the Plaintiff at her request had bestowed great labour and travail and had expended circa the affairs of the said Countess 1500 l. Whereupon she promised to the Plaintiff to pay all the said expences and such a sum above for that matter which is the ground of the action is maintenance and malum prohibitum but such matter is not here for it is lawful for a man to use means to get his goods Gawdy All covins are abhorred in Law and here the Plaintiffs are privies to the wrong and therefore it cannot be any consideration Wray Although that the suit at the beginning was wrongful and covenous yet when the Plaintiffs who were owners of the said goods do assent to such proceedings now the suit is become just and lawful ab initio Corin. and so no wrong in the consideration but all the wrong is purged by the agreement If any covin be the same is between Sadler and him who is sued to whom the Plaintiffs are not privies Clench If this privity betwixt the Plaintiffs and Sadler had been before the said suit then the consideration is without any fraud Cooper Serjeant conceived here is not any good consideration upon which the Promise of the Defendant may be grounded for the Defendant hath not any benefit by it and he cited the case between Smith and Smith 25 Eliz. Egerton Here the consideration is good enough for the Plaintiffs forbear their own suit which was a hinderance unto them Clench was of opinion that the Plaintiff should not have Iudgment for that suit was begun by Sadler in the Name of Collison without his privity and therefor it was unlawful and the same was for the goods of another man which is unlawful also and then when the unlawful act is begun the illegal agreement afterwards that they shall proceed is unlawful also and therefore there cannot be any consideration and as to the covin it is not material for without that the matter is illegal enough Also the Declaration is not good in this because it is not shewed in what Court the suit did depend so as it might appear unto us that they had power to hold plea of it Gawdy agreed with Clench in the first point and also in the last and by him in the assumpsit the Plaintiff declares that a suit was depending betwixt the Defendant and another and where the Plaintiffs if they were produced might have given strong witness against the Defendant the said Defendant in consideration that the Plaintiffs would not give Testimony against him promised to give to the Plaintiff 20 l. the same consideration will not maintain this action because it is unlawful for any man to suppress testimony in any cause 1 Cro. 337. Wray Here is a consideration good enough For where Sadler should lose costs upon the first suit now upon this promise upon his account he shall be allowed the same the which is a benefit unto him and as to the shewing in what Court the suit doth depend that needs not by way of Declaration but the same shall be shewed by way of Evidence and it is not traversable and it is but inducement to the action And as to the covin that is not here for covin is always to the prejudice of a third person but so it is not here But in truth this suit was unlawful for Sadler so to sue in the Name of another and therefore it cannot be a good consideration And for that cause it was awarded Quod querens nihil capiat per billam CCLIV How and Conneys Case Trin. 31 Eliz. In the Kings Bench. Trespass 1 Cro. 159. IN an action of Trespass by How against Conney the case was That one Smith was seised of two houses and leased one of them to his Brother for life and afterwards by his Will devised viz. I give to my Executors All my Lands and Tenements free and copy to hold to them and they to take the profits of them for ten years and afterwards to sell the said Lands and Tenements and afterwards died his Brother died before the quarter of a year after and it was found That the Executors entred into the house undemised and took the profits but not into the other and that at the end of the said ten years they sold the whole Godfrey The house only which was in possession shall pass by the Will. To hold unto them doth imply matter of possession so as nothing passeth but that whereof they may take the profits the which cannot be of a bare Reversion also by this devise the Executors have not interest in the thing devised but for ten years Plow 66. Shop 437. whereas the Brother of the Testator had an estate for life which by possibility might continue above twenty years and to prove that the meaning of the devisor to be collected upon the words of the Will ought to direct the construction of the
of the Contract and being made at the time of the Communication and contract should charge the Defendant but if the promise were at another time it should be otherwise There was a Case lately betwixt Smith and Edmunds Two Merchants being reciprocally endebted the one to the other agreed betwixt themselves to deliver all their Bills and Bonds into the hands of one Smith who promised that he would not deliver them to the parties until all accounts were ended betwixt them and yet he did deliver them and for that an Action brought against him was adjudged maintainable yet there was not any consideration nor was it material for the action is grounded upon the Deceit and so is it here upon the Warranty And of that opinion were Clench and Wray Iustices but Gawdy was of a contrary opinion CCLXII Woodshaw and Fulmerstones Case Hill. 30. Eliz. Rot. 699 In the Kings Bench. WOodshaw Executor of Heywood brought Debt upon a Bond against Richard Fulmerstone and the Writ was dated October Mich. 29 30 Eliz. and the Condition of the Bond was That if Fulmerstone died before his Age of one and twenty years and before that he had made a Ioynture to A. his Wife Daughter of the Testator Heywood Then if the said Defendant caused one hundred pounds to be payed to the said Heywood within three months after the death of the said William that then the Bond should be void and the said William Fulmerstone died 30 September 30 Eliz. which matter he is ready c. The Plaintiff doth traverse absque hoc that the said Heywood died intestate Tanfield It appeareth of Record that the Plaintiff hath not cause of action for this one hundred pounds was to be paid within three Months after the death of William Fulmerstone 1 Cro. 271 325 565. as the Defendant hath alledged which is also confessed by the Plaintiff and this Action is entred Mich. October 30 Eliz. scil within a month after the death of William Fulmerstone and so before the Plaintiff hath cause of action and therefore he shall be barred Gawdy Where it appeareth to the Court that the Plaintiff hath not cause of Action he shall never have Iudgment as in the Case betwixt Tilly and Wordy 7 E. 4. But here it doth appear that the Plaintiff hath cause of Action for where a man is bound in an obligation the same is a duty presently Obligation and the condition is but in defeazance of it which the Defendant may plead in his discharge CCLXIII Windham and Sir Edward Cleers Case Trin. 31 Eliz. In the Kings Bench. ROger Windham brought an Action upon the Case against Sir Ed. C. declared that the said Ed. being a Iustice of Peace in the County of N. and where the Plaintiff was a loyal subject Action upon the Case of sclander 1 Cro. 130. and of good fame all his life time nor ever touched or reproched with any offence of Roâ—ery c. the Defendant malitiose invide machinams ipsum Rogerum de bonis nomine fama et vita deprivare directed his warrant to divers Baylifs and Constables of the said County to arrest the said Plaintiff And it was alledged in the said Warrant That the Plaintiff was accused before him of the stealing of the horse of A. B. by reason of which the Plaintiff was arrested and so detained until he had entred into a Bond for his appearance c. whereas in truth he was never accused thereof nor ever stole such horse and whereas the Defendant himself knew that the Plaintiff was guiltless by reason of which he was greatly discredited c. And it was found for the Plaintiff And it was moved that upon this matter an Action doth not lye for a Iustice of Peace if he suspect any person of Felony or other such Offence may direct his Warrant to arrest him 14. H. 8. 16 Gaudy and Clench If a man be accused to a Iustice of Peace for Felony for which he directs his Warrant to arrest him although the accusation be false the Iustice of Peace is excused but if the party in truth was not accused before the Iustice it is otherwise It was a Case lately betwixt the Lord Lumley and Foord where Foord in a letter written by him had written It is reported That my Lord Lumley seeketh my life If it was not Reported an Action upon the Case lieth but if reported no Action lieth So here if he was accused no Action lieth but if not an Action lieth And afterwards in the principal Case Iudgment was given for the Plaintiff CCLXIV Isleys Case Trin. 31 Eliz. In the Kings Bench. ISley and others were Plaintiffs in an Ejectione firmae and upon the general Issue it was found for the Plaintiffs and 4 days after the verdict given was moved in stay of judgment a special maâ—ter in Law whereof the Iustices were not resolved for the law but took advisement and gave day over and in the mean time one of the Plaintiffs died which matter the Defendant shewed to the Court in further stay of the Iudgment But by Coke the same is not any cause for the Postea came in Quindena Pasch which was 16 Aprilis at which day the Court ought to have given Iudgment presently but took time to be advised and the 19 of April one of the Plaintiffs died And the favour of the Court ought not to prejudice us for the Iudgment here shall have Relation to the 16 of April at which time he was alive and it was so of late adjudged in the Case of Derick James who died the day after the verdict and yet Iudgment was not stayed for the Court after verdict cannot examine surmises and they have not a day in Court to plead and in our case It was but a day of Grace and no entry is made of it Although no plea can be now pleaded after verdict yet as amicus curiae one may inform us of such matter And sometimes in such case Iudgment hath been stayed as 9 Eliz. and sometimes notwithstanding such Exception as 2 Eliz. So as I conceive the matter is much in the discretion of the Iustices And because the same was a hard verdict and much against the Evidence It is good discretion upon this matter to stay Iudgment and such was the opinion of the Court. CCLXV. Steed and Courtneys Case Trin. 31 Eliz. In the Kings Bench. Error 1 Cro. 116. Owen 93. More 691. Prescription to levy a fine not good ERror was brought upon a Fine levied upon a Plaint in a writ of Covenant in the City of Exceter And two Errors were assigned First The Plaint was quod teneat convent de duobus tenementis Whereas in truth the word Tenement doth not comprehend any certainty for in the Word Tenement is understood Messuage Land Meadow Pasture c. and whatsoever syeth in tenure And 11 H. 6. 18. by grant of Lands and Tenements Rent or Common shall pass And an Ejectione firmae
day the same had bin good for such By-law doth not take away but order the Inheritance For the nature of a By-law is to put Order betwixt the Tenants concerning their affayrs within the Manor which by law they are not compellable to do And by Periam The Avowant ought to have averred That this By-law was for the Common profit of the Tenants See the Lord Cromwells Case 15 Eliz. Dyer 322. and afterwards in the Principal Case Iudgment was given against the Avowant CCLXXI. Wicks and Dennis Case Mich. 31 32 Eliz. In the Common Pleas. Replevin WIcks brought a Replevin of Dennis who avowed That one Dennis his Father was seised of the Manor c. and granted out of it to the avowant a Rent of twenty pounds per annum and further granted That if the said Rent be arrear unpaid six days after the feasts c. wherein it ought to be paid si licite petatur That then it should be lawful to distrein The grantor afterward by Indenture Covenanted with the Lord Treasurer and others to stand seised of the same Manor unto the use of himself and his heirs until he or his heirs have made default in they payment of one hundred pounds per annum until three thousand pounds be paid and after default of payment to the use of the Queen and her heirs until the sum of three thousand pounds should be paid and levied The grantor afterwards levied a fine to the said Lord Treasurer and others to the uses aforesaid the Rent is arrear default of the payment of the hundred pounds in made Office is found The Queen seised the land the Avowant during the possession of the Q. demanded the Rent the arrearages thereof The Queen granted over the Manor to W. B. D. the grantee did distrain for the rent arrearages demanded ut supra It was moved by H. Serjeant That this demand of several sums payable at several days before is not good for every sum ought to be severally demanded when it was first due scil si licite petatur scil within the six days for otherwise without such demand distress is not lawful and he resembled it to the case of Sir Thomas Gresham 23. Elizabeth Dyer 372 of several Tenders Periam conceived that the demand ought to be several Anderson That the demand is good enough And as to the demand made during the possession of the Queen It was holden by the whole Court to be good enough for although the possession of the Queen be priviledged as to the distress yet the demand is good Demand of Rent charge during the possession of the King good without any wrong to her prerogative for the Rent in right is due and the possession of the Queen is in right charged with it and the Rent is only recoverable by Petition as it was by way of distress and if the partie sueth to the Queen by Petition for the said Rent he ought to shew in his Petition that he hath demanded the Rent for if the possession had bin in a common person he could not distreyn before demand nor by consequence have Assise And the Rent notwithstanding the possession of the Queen is demandable and payable for to entitle the party unto Petition against the Queen and to distress against the subject when the possession of the Queen is removed And see 7 H. 6. 40. disseisee may make continual claym although the possession of the Land of which he is disseised be in the King. And 34 H. Br. seisin 48. If the heir at full Age intrude upon the possession of the King and pays Rent to the Lord of his Land holden of a subject the same is a good seisin and shall bind the heir after he hath sued his livery 5 E. 4. 4. and see 13 H. 7. 15. That distress taken upon the possession of the King is not lawful but seisin obtained during it is good So in 21 H. 7. 2. CCLXXII Ashegells and Dennis Case Mich. 31 32 Eliz. In the Com. Pleas. Int. M. 30 31. Rot. 458. AShegel brought a Quare Impedit against Dennis Quare Impedit 1 Cro. 163. Hob. 304. and the Plaintiff Counted that the Defendant had disturbed him to present ad vicariam de D. and shewed that the Queen was seised of the Rectory of D. and of the Advowson of the vicaridge of D. and by her letters Patents gave unto the Plaintiff Rectoriam praedictam cum pertinentiis etiam vicariam Ecclesiae praedict And it was holden by the whole Court That the Advowson of the vicaridge by these words doth not pass nor so in the Case of a common person much less in the Case of the King But if the Queen had granted Ecclesiam suam of D. then by Walmesley Iustice the Advowson of the vicaridge had passed CCLXXIII Collman and Sir Hugh Portmans Case Mich. 31 32 Eliz. In the Common Pleas. IN Ejectione firmae by Collman against Sir Hugh Portman it was found by special verdict Ejectione firmae That the lands where were holden by Copy of the Manor of D. whereof Sir H. Portman was seised and that the Plaintiff was Copyholder in Fee and further found That the said Sir H. pretending the said Copy-hold lands to be forfeited Surrender of Copy-holder entred into Communication with Collman touching the same upon which Communication it was agreed betwixt them That the said Collman should pay to the said Sir Hugh five pounds which was paid accordingly that in consideration thereof Collman should enjoy the said Customary lands except one Wood called Combwood for his life and also of Alice his wife durante sua viduitate and that Collman should have Election whether the said lands should be assured unto him and his said wife by Copy or by Bill c. he chose by Bill which was made accordingly and further found That the said Sir H. held and enjoyed in his possession the said Wood c. upon this matter The Court was clear in opinion That here is a good surrender of the said lands and that for life only and that the said Sir Hugh had the Wood discharged of the customary interest CCLXXIV Thetford and Thetfords Case Mich. 31 32 Eliz. In the Common Pleas. Debt IN an Action of Debt for Rent the Plaintiff declared That Land was given to him and to T. his wife and to the heirs of their bodies and that his wife leased the Lands to the Defendant and that the Donees were dead and that the Plaintiff as heir c. for rent arrear c. and upon Non demiserunt the Iury found that the Husband and Wife demiserunt by Indenture and afterwards the husband died and the wife entred and within the term died Now upon the matter it seemed clear to Anderson that the Iury have found for the Defendant scil Non demiserunt for it is now no lease ab initio because the Plaintiff hath not declared
his Manor by prescription which is not a Court-baron Anderson was of opinion that it is not a Court-baron for although it be appertaining to the Manor yet that is not any proof that it is a Court-baron For a Leet may be appertaining to a Manor It was adjourned CCC Green and Edwards Case Mich. 32 33 Eliz. In Communi Banco 1 Cro. 216. 217. BEtween Green and Edwards the Case was this Land is demised to A. for nine years if he shall so long live and if he die within the Term that B. his Wife shall have it durante toto residuo termini praedict The Husband dieth during the Term If the Wife shall have the residue of the Term was the Question And by Periam Walmesly Iustices by the death of the Husband the Term is determined thereupon nothing can remain especially by way of grant but by way of Devise it might be See 9 Eliz. 253. A Lease for forty years to A. if he shall live so long and if he die within the Term that E. his Wife shall have the residue of the years Where it was holden that by the death of A. the Term is determined and then there is no residue and so the Limitation is void vide 3 4 Phil. Mar. 150. Anderson If the Husband and Wife had been parties to the Deed of Demise then the residue of the Term should go to the Wife after the death of the Husband and this word Terminum shall not be taken for the Interest which is given to the Husband but for the time so it is as much as to say that if the Husband die before forty years expired that then his Wife shall have the residue for forty years and it is reason to make such construction rather than to construe the said part of the Deed to be void For if in the construction of this Grant the Term shall be taken for the Interest then the Limitation shall be void And in all Grants the Deeds shall be taken most beneficially for the Grantee and most strongly against the Grantor especially ut res magis valeat quam pereat And here are several Grants and several Terms But if such matter be limited to the Wife not named in the Deed all is void for it is incertain when the Term shall begin it cannot vest during the particular Estate and it is not certain whether the Husband shall survive the Term or not And by Walmesly Windham the said Limitation is meerly void As if a Termer grants all his Term for so many years as shall be behind after his death the same is a void Grant for the Lessee may over-live all the Term and then it is incertain when it shall begin And in this Case this word Term shall be taken for the Interest and not for time vide 35 H. 8. Br. Conditions 203. vide Co. 1. part in the Rector of Chedingtons Case this Case vouched CCCI. Gawton and the Lord Dacres Case Mich. 32 33 Eliz. In the Common Bench. IN Debt upon Surplusage of an Accompt by Gawton against George Lord Dacres It was said by Periam Iustice and not denied by any that if I make J. S. my Auditor generally to take Accompts of all my Bayliffs and Receivors that he is not a sufficient Auditor without a Patent for when a man is made an Auditor generally he is an Officer and an Officer cannot be without a Deed. But if a Bayliff or Receiver be accomptable to me it is as cleer on the other side that I may appoint one to be my Auditor to take the accompt of him pro hac vice by word which Anderson granted But if he afterwards takes an accompt of any by force or colour of the said Warrant without my Commandment he is not a sufficient Auditor to such intent either to take the accompt or to assess the arrerages if the accomptant be found in arrear or to make allowance if he be found in Surplusage And by him If one become my Bayliff of his own wrong without my appointment he is accomptable to me but I am not compellable to make him any allowance for his Expences about my business And if I assign to such Bayliff of his own wrong an Auditor he cannot make allowance of such Expences Anderson If my Auditor make allowance to my Bayliff for any collateral Expences which he hath expended in my affairs which do not concern my Manor whereof he is Bayliff such allowance shall not bind me And note that in this Action the Plaintiff declared that he was Bayliff to the Defendant of certain Manors Receiver of certain monies and so retained ad diversa negotia procurandum And upon accompt the allowance was made unto him for his Board-wages and other Expences in riding Circa negotia And by Anderson 3 Len. 149. these allowances shall not bind the Defendant for as Bayliff of a Manor no Expences shall be allowed unto him but those which the Bayliff hath expended within the Manor And if I retain one to go about my business he is not accomptable Windham If I retain one to follow my business and deliver to him mony to disburse in such business he is accomptable Anderson It is so truly but it is not in respect of the said Retainer Devises but as he was Receiver and if he expend more than he hath received he doth it without Warrant and no allowance shall be made unto him If the Bayliff be found in Surplusage in the conclusion of the accompt the Auditor ought to enter Allocatur super determinationem Compt. in surplusagiis so much for such and such Expences allocatis allocandis upon the next accompt But in this Case it appeared upon the Evidence that the Entry upon the foot of the accompt was And so he is in Surplusage upon the determination of this accompt twenty six pounds But the Auditor being examined said that it was not his meaning to allow unto him so much but only to find and express the certainty of the whole accompt and so refer the allowance of it to the Defendant to whom he was Auditor and upon that the Court said to the Iury if they believed the Auditor that they should find against the Plaintiff for upon the matter here is not any accompt and so no allowance for the allowance if it had been according to Law ought to be entred before Allocatur c. and such allowance is as a Iudgment but here is not any allowance for the Auditor did refer the same to the Defendant But if the Iury doth not give credit to the Auditor then the Court moved the Iury to find it specially that the party was Auditor without Deed and the finding of the accompt as it is set down in the Declaration and the manner of the conclusion of it viz. That the Plaintiff was in Surplusage upon the determination of the accompt for his Expences in riding Circa negotia defendentis
and rides upon him or hereby he becomes Lame or otherwise by excessive travel misuseth him so as my Horse is the worse thereby He may be ready to deliver me my Horse and yet this action will ly for such an abusing of the Horse is a Conversion to his own use Periam Iustice Post 224. The latter Plea clearly is insufficient for it amounteth but to Not guilty but for the first Plea he doubted of it for first the property is not traversable nor the knowing but upon the general Issue pleaded such matter may be given in Evidence And he conceived That where a man buyes goods of one who comes to them by Trover that he may sell them and shall not be answerable for them And although it may be said that the said matter may be given in evidence yet it is not good to put the same to the people but to refer the matter to the Iudgment of the Court. Walm Iustice The latter Plea is clearly insufficient but for the first he doubted of it for he conceived that the sale of the goods is not a Conversion Anderson The first Plea is ut supra and nothing in that is material or traversable for all the Plea may be true and yet the Defendant is guilty for it may be that the Defendant himself sold them to the Plaintiff or to another who sold them to the Plaintiff and that afterwards the Defendant found them and here the Conversion is confessed and not so voided by sufficient justification and by him the sale to persons unknown is no good Plea for his sale is his own Act and it cannot be but he must have notice of the buyers and therefore he ought in his Plea to shew their names Periam Contrary to that matter as to the naming of the buyers for it should be an infinite thing for a Draper to take notice of every on who buyeth and Ell of Cloath of him And afterwards the same Term Iudgment was given for the Plaintiff upon the insufficiency of the Plea. CCCV Walgrave against Ogden Mich. 32 33 Eliz. In Communi Banco Trover and Conversion 1 Cro. 219. AN action upon the case was brought upon a Trover and conversion of twenty barrels of Butter and declared that by negligent keeping of them they were become of little value upon which there was a Demurrer in Law And by the opinion of the whole Court upon this matter no action lieth For a man who comes to Goods by Trover is not bound to keep them so safely as he who comes to them by Baylment Walmesley If a man find my Garments and suffereth them to be eaten with Moths by the negligent keeping of them No Action lieth Ante 223. but if he weareth my Garments it is otherwise for the wearing is a Conversion CCCVI Alexander and the Lady Greshams Case Mich. 32 33 Eliz. In Communi Banco Debt for arrerages of annuity ALice Alexander Administratrir to her last Husband brought an Action of Debt for the arrerages of an Annuity against the Lady Gresham Executix of Sir Thomas Gresham her late Husband incurred in the life-time of her late Husband Sir Thomas Gresham The Defendant pleaded that she had fully administred The Plaintiff replyed Assets scil That the Defendant had divers Goods in her hands not administred which were the goods of the said Sir Thomas at the time of his death upon which they were at Issue And it was found by special Verdict that Sir Thomas Gresham being seised of divers Manors and other Lands in Fee devised them by his last Will to his Wife the Defendant Devises to use at her own pleasure And by his said Will requested his Wife to pay his Debts and Legacies and further it was found that at the Parliament holden 22 Eliz. a private Act was made 2 Cro. 139. Ante. 87. by which it was enacted that the said Lady should take upon her the charge of all her Husbands Debts and for the discharge thereof she shall sell so much Land as will yield so much mony as will serve for the payment of the said Debts and if she shall fail therein that then certain Commissioners shall be appointed for the sale of so much Land c. and for all such Debts as the said Lady should not acknowledge to be good true Debts that then the Creditors to whom they were due should repair to the said Commissioners and they should determine both of the certainty of the sum of the due Debts and of the Damages for the forbearing thereof and that afterwards the said Creditors should have their remedy against the said Lady for such sums of mony so agreed upon by the said Commissioners and found the Statute at large and that the said Lady Gresham had sold certain Lands parcel of the Possessions of the said Sir Thomas by which sale she had received the sum of twenty thousand pounds which yet is unadministred for the greatest part of it And if upon the whole matter the said sum of twenty thousand pounds be Assets then they find for the Plaintiff but if not then for the Defendant And it was moved by Hammon Serjeant that here is Assets upon this matter and that by the Common Law for it appeareth upon the Will that the Lands were devised to the Lady to the intent that she should pay his Debts And although the words of the Charge are that the Testator requests the Lady to pay his Debts the same in a Will doth amount to a Condition and so the meaning of the Devisor appeareth to be that the money which is levied by such sale shall be Assets c. 2 H. 4. 21 22. Assets A man makes a Feoffment in Fee to divers persons upon condition that they sell the Land and the money thereof coming distribute for his Soul The Feoffor dieth the Feoffees who were also Executors of the Feoffor sell the Lands the mony thereof coming is adjudged Assets And see 3 H. 6. 3. And although it be not Assets by the Common Law Roll. part 1. 920. yet it is Assets by the special Statute which ordains that he shall be charged with the Debts and that the Lands shall be sold And it was found by the Verdict that such Lands were sold and such money levied upon the sale which are administred And although the said twenty thousand pounds were never the Goods of the Testator yet as the Case is 3 H. 6. 3. If Executors recover Damages in trespass of Goods taken away in the life of the Testator such Damages so recovered are Assets So if Executors redeem a Pledge with their own proper Goods the same is Assets in their hands by Kingsmill Vâ—vasour and Fisher 20 H. 7 42. And where the Executors took of one who was indebted to their Testator in a simple Contract the same is Assets 31 E. 3. And see many Cases of such special Assets 7 Eliz. in Plowdens Comment in Chapman and
covenanteth and granteth to the others eorum utrique to make assurance and there it was holden that the word uterque doth amount to quilibet Wray Admit it shall be so taken in a Bond yet it shall not be so taken in an Indictment As if a man make a Lease for years rendring Rent payable at the day of St. Martin although there be two days of St. Martin in the year yet the reservation is good and the Rent shall be taken payable at the most usual day of St. Martin there in the Country But in an Indictment if an offence he laid to be done on St. Martins day without shewing which in certain it is not good Fenner The word uterque is matter of surplusage and therefore shall not hurt the Indictment CCCXXVII Blunt and Whiteacres Case Mich. 32 33 Eliz. In the Kings Bench. Error A Writ of Error was brought upon a Iudgment given in the Common Pleas in a Replevin where the Defendant did avow as Fermor of the Manor of F. in the County of Berks to St. Johns Colledge in Oxford and laid a Prescription there in him and his Fermors to distrain for all Amercements in the Court of the said Manor Amercement and shewed that the Plaintiff in the Replevin was presented by the Homage for not repairing of a House being a customary Tenant of the said Manor according to a pain imposed upon him at a former Court for which he was amerced by the Steward to ten shillings and was also presented for not ringing of his Swine for which he was amerced three shillings four pence and for these Amercements he distrained And upon Nihil dicit Iudgment was given for the Avowant to have return upon which a Writ of Error was brought And Error assigned in that there is not any Prescription laid in the Avowry for the Lord to amerce the Tenants and of common Right he cannot do it See 48 E. 3. And such Amercement is Extortion for the Lord cannot be his own Iudge and therefore he ought to enable himself to distrain by Prescription Another Error because the Fine is laid to be assessed by the Steward 1 Cro. 748. 886. whereas by the Law it ought to be by the Suitors for they are Iudges and not the Steward Another because that in the Avowry it is set down quod praesentatum fuit that he had not repaired a certain House but he doth not say in facto categorice c. that he had not repaired for that is matter traversable 4. Here is no offence for a Copy-holder is not bound to repair by the Common Law if it be not by Prescription for he cannot have House-boot upon the Land as a Termor may if it be not alledged a custom Fenner The Steward may assess Fines for a contempt but not Amercements if not by Prescription Gawdy The Lord of a Mannor cannot assess Amercements for a Trespass done to himself upon his own Lands but otherwise it is of a common Trespass or a Trespass done in the Land of another but for the Distress he ought to prescribe and the Iudgment was reversed CCCXXVIII Page and Fawcets Case Pasch 29 Eliz. Rot. 121. In the Kings Bench. Error 3 Cro. 227. ERror was brought upon a Iudgment given in Lyn where by the Record it appeareth that they prescribe to hold Plea every Wednesday and it appeared upon the said Record that the Court was holden 16 Feb. 26 Eliz. which was dies Dominicus and that was not assigned for Error in the Record but after in Nullo est erratum pleaded it was assigned at the Bar And Almanacks were shewed to the Court in proof of it and it was holden clearly to be Error but the doubt was if it should be tried by Iury or by the Almanacks and it was said that the Iustices might judicially take notice of Almanacks and be informed by them and that was the Case of one Robert in the time of the Lord Catline and by Coke so was the Case betwixt Galery and Bunbury and afterwards the Iudgment was reversed CCCXXIX Geofries and Coites Case Trin. 33 Eliz. In the Kings Bench. IT was found by special Verdict 1 Cro. 25â— that one Avice Trivilian was Tenant for life the Remainder to her Son in tail the Remainder over Tenant for life and he in the Remainder in tail make a Lease for life the Remainder for life rendring Rent Tenant for life dieth he in the Remainder dieth and his Son accepteth of the Rent of the Tenant for life in possession who dieth The Issue in tail entreth he in the Remainder for life entreth c. And it was conceived that this acceptance of the Rent of the Lessee for life doth affirm also the Remainder See Litt. Sect. 521. and such was the opinion of Gawdy and Fenner Iustices CCCXXX The Lord Mordant and Vaux Case Pasch 33 Eliz. In the Kings Bench. THe Lord Mordant brought an Action of Trespass against George Vaux and declared of a Trespass done in quodam loco 1 Inst 225. 1 Cro. 269. called N. parcel of the Manor of Hawarden The Case was William Lord Vaux was seised thereof and thereof levied a Fine to the use of the Lord Vaux which now is for life and after his decease to the use of Ann and Muriel Daughters of the Lord Vaux and their Assigns until Ambrose Vaux should return from the parts beyond the Seas and should come to the Age of 21 years or dye if they should so long live And after the return of Ambrose from beyond the Seas and the age of 21 years or death whichsoever of the said days or times should first happen to the use of the said Ambrose and the Heirs of his body begotten with divers Remainders over Ambrose returned Plow Com. 376. 2. Ante 18. 76. and 31 Eliz. before he came of full age for it is not pleaded that he was of full age levied a Fine to the use of George Vaux the Defendant in tail with divers Remainders over Afterwards the Lord Vaux being Tenant for life enfeoffed the Lord Mordant in Fee upon whom the said George Vaux entred for a forfeiture upon which Entry the Lord Mordant brought the Action Buck argued for the Plaintiff Amb. Vaux had nothing in the Lands in question until his return from beyond the Seas and his full age and the estate doth not begin until both be past and he said that no use did arise to Ambrose until the time incurred for the time of the beginning is uncertain and upon a Contingent as 13 Eliz. Dyer 301. A. makes a Feoffment in fee to the use of himself for life and after to the use of B. who he intendeth to marry until the Issue which he shall beget on her shall be of the age of 21 years and after the Issue shall come of such age then unto the use of the said B. during her Widowhood the Husband dieth without Issue the Wife entreth and her
The last words of the Limitation do not distinguish or disjoyn it but respect the estate precedent And by Clench Iustice If the use limited to Ambrose shall depend only upon the Limitation of his death the same should be void for then he should not he in esse to take But the other Iustices were of a contrary opinion and that the use is good 7 H. 4. Gawdy Although that here be three things yet but two times for the words are not or at such of the said days or times as shall first happen for that would alter the case But here these words ought to be intended as if they were spoken before in the Limitation of the estate to the Daughters and cannot divide the former Limitation and he said that if by reason that the Limitation upon the death which is certain it shall vest in Ambrose presently then if after the other Limitation shall fall then his Remainder which vested in him upon the said certain Limitation should be devested and should now accrue to him upon the other Limitation which should be absurd and inconvenient c. It was adjorned CCCXXXI Thomas and Wards Case Trin. 32. Eliz. In the Kings Bench. IN Ejectione firmae by Thomas against Ward Ejectione firme 1 Cro. 102. upon a Lease made to him of the Manor of Middleton Cheney by one Chambers the Defendant pleaded that long time before the Lessor of the Plaintiff had any thing the Bishop of Rochester was seised and leased the same to the Defendant the Plaintiff by Replication said that the said Lease was upon condition viz. The Lessee by the Indenture of the said Lease did covenant that he would not put out or disturb any of the Tenants inhabiting within the said Manor out of their Tenancies doing their duties according to the custom of the said Manor and shewed that the Defendant had put out one Ann Green a Tenant dwelling there upon a Tenement parcel of the said Manor late in the possession and occupation of the said Ann and that the Bishop had re-entred for the condition so broken and made a lease to the Lessor of the Plaintiff upon which Replication the Defendant hath demurred in Law Tanfeild argued for the Defendant that the Bishop had no cause to re-enter for there is not any condition in the Case but only a Covenant for it comes in only on the part of the Lessee and they are words of Covenant only whereas every condition ought to be the words of the Lessor and the Bishop hath sufficient remedy by Action of Covenant But if the words had been indifferent and absolute without depending on the Lessor or Lessee then it had been otherwise as 3 E. 6. Dyer 65. Non licebit to the Lessee dare concedere vel vendere statum vel terminum without the Licence of the Lessor under pain of forfeiture the same is a good condition but here it is meerly a Covenant and it cannot be both Haughton Although the words sound in Covenant and be the words of the Lessee yet the Lease being made by Indenture the same is the Deed of both and every word in it is spoken by both parties and although that he may have an Action of Covenant yet he cannot thereby overthrow the Lease as by Entry by condition broken and yet by the words it seems the meaning of the Indenture was that by the breach of this Covenant the estate should be defeated for so are the words sub poena forisfactur And here by way of Action he cannot have the benefit of the whole Covenant and therefore he shall have it by way of condition And see the case betwixt Browning and Beston Plow 132. If it happen the Rent to be behind that then the Lessee Covenants that although the Rent be not demanded that the said Lease should be utterly extinct void and of no effect and 24 Eliz. there was a case betwixt Hill and Lockham where by the Indenture of Lease the Lessee Covenanted to grind all his Corn at the Mill of the Lessor and afterward in the end of the said Indenture the Lessee covenanted to perform all the Covenants sub poeâ—a sorisfactur and by the opinion of the whole Court the same was a condition And see 21 H. 6. 51. where in an Obligation where A was bound to B. the condition is written in this manner Praedict B. vult concedit That if the said A. doth stand to the Arbitrament of such a one that then c. the same is a good condition although they are the words of the Obligee and the Deed of the Obligor and so here is a good condition And such was the opinion of Wray and Gawdy and Fenner did not contradict it Wherefore Tanfeild said Admit here it is a condition yet here is not any breach of it sufficiently set forth for the breach is assigned because he had put out a woman unam tenentem inhabitantem out of certain Lands parcel of the said Manor late in the possession and occupation of the said woman and that might be that she was but Tenant at Will and the Covenant doth refer only to Copy-holders And it may be also that she had disseised one of the Tenants of the Manor in which case the putting out of such a Tenant being in by wrong is no breach of condition Also it is not averred in facto that Ann was Tenant of any part of the Mannor Also the Replication is That the said Defendant had ousted the said Ann where she had done her duty fecit debitum suum before the Ouster and that might be that she had done her duty once but not after and therefore he ought to have said that she had done her duty always before her putting out and this word duly being single is too general for it may be understood of curtesie where the words in the Indenture are Doing their duty according to the custom of the Manor And also it might be that Ann Green was Tenant and Inhabitant but was not put out of the Land which was parcel of the Manor And Wray said that these Exceptions were incurable And therefore Iudgment was given against the Plaintiff CCCXXXII Harvy and Thomas Case Mich. 31 32 Eliz. Rot. 414. In the Kings Bench. THe Case was Leases 1 Cro. 216. Husband and Wife seised of Lands in the Right of the Wife the Husband alone makes a Lease by word for years Afterwards the Husband and Wife levy a Fine and after the Wife and Husband both dye It was holden clearly by the whole Court that the Conusee should avoid the Lease CCCXXXIII Sly and Mordants Case Trin. 32. Eliz. Rot. 314 In the Kings Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 191. 2 Len. 103. 3 Len. 174. Dy. 250. 1 Cro. 198 199. that whereas he was seised of certain Lands the Defendant had stopped a Water-course by which his Land was drowned and found for the Plaintiff It
was moved in arrest of Iudgment that it appeareth upon the Plaintiffs own shewing that the Plaintiff hath the Free-hold and therefore he ought to have an Assize but the same was not allowed and therefore the Plaintiff had Iudgment CCCXXXIV Kensam and Redings Case Trin. 33. Eliz. In the Kings Bench. THe Case was Grants of the King 1 Cro. 244. Hob. 170. That the Queen by her Letters Patents granted the Site of the Manor of Brokeley lying in W. and all the Lands Pastures Woods Vnder-woods and Hereditaments parcel or appertaining to the said Site exceptis omnibus grossis arboribus boscis maremio and further in the said Letters Patents there was a Proviso that the Lessee should have sufficient House-boot and Hedge-boot c. And if notwithstanding the said Exception the Lessee should have the Vnderwoods was the question And it was argued that the Lessee should have subbois i. e. Vnderwoods for that is granted by express words and the exception extends only grossis arboribus for this word grossis in the exception extends to all that which follows Gawdy Iustice If it were in the case of a common person it is clear that upon such matter the Vnderwoods are not excepted 7 E. 6. Dyer 79. A Lease is made of a Mannor except Timber and great Woods the Vnderwoods shall pass Fenner Iustice The Proviso that the Lessee should have House-boot shews the Queens intent that the Vnder-woods should not pass Wray If this word bois in the exception should not extend to Vnder-woods it should be vain and signifie nothing which should be hard in the Case of the Queen CCCXXXV Trin. 33. Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared of Trover and of a Bag of mony and the conversion of it Trover and Conversion 1 Cro. 97. 201 555 693. The Defendant pleaded that the Bag of mony was delivered to him as a pawn to keep until A. and B. were agreed which of them should have it and pleaded further that A. and B. were not yet agreed who of them should have it for which cause he kept it absque hoc that he converted it to his own use upon which the Plaintiff did demur in Law It was moved that the Conversion is never traversable Wray Generally Conversion is not traversable but upon such special matter as is here Or if A. lend money to B. and B. delivereth a thing of the value to A. in pawn now the Conversion is traversable see the same case 4 E. 6. Br. Action upon the Case 113. so here Fenner agreed with Wray CCCXXXVI The Bishop of Lincoln and Cowpers Case Mich. 33. Eliz. In the Kings Bench. Prohibition THe Bishop of Lincoln sued a Prohibition against Cowper who had libelled against him in the Spiritual Court for Tithes out of the Manor of D. Tithes 1 Cro. 216. Post 331 332. And the Bishop did suggest that he and all his Predecessors had been seised of the said Manor and that as long as it was in their possessions had been discharged of Tithes and shewed that in the time of E. 6. the said Manor was conveyed to the Duke of Somerset in Fee and afterwards was re-granted to the Bishop and his Successors It was moved That the Prescription was not good because de non decimando And admit that the Prescription be good that same is interrupted by the seisin of the Duke of Somerset and although that the Manor be re-assured to the Bishop of Lincoln yet the Prescription is not revived as Homage Ancestrel if it be once in a Forrain Seisin although it be re-assured yet it is not revived But by Wray Gawdy and Fenner The Prescription is good in the Case of a Spiritual person but not in the case of a common person And they all were clear of opinion that the Prescription is not gon by this Interruption for Tithes are not issuing out of the Lands neither can Vnity of possession extinguish them neither are they extinguished by a release of all right of Land c. See for this Case Co. 11. part of his Reports in the Case of Pridle and Napper CCCXXXVII Dethick King of Arms Case 33. Eliz. In the Kings Bench. Indictment 1 Cro. 224. Yelv. 34. Noy 250. Misnosmer in an Indictment WIlliam Dethick against Garter King of Arms was indicted upon the Statute of 5 E. 6. for striking in the Church-yard For that the said Dethick in Pauls Church-yard in London struck I.S. It was moved If Cathedral Churches be within the meaning of the Statute The Court was clear of opinion that they were And afterwards the Defendant pleaded that before the Indictment found he was created and crowned by the Letters Patents of the Queen which he shewed chief and principal King of Arms and it was granted by the said Letters Patents that he should be called Garter and that that name is not in the Indictment and demanded Iudgment The Kings Attorney by Replication said That by the Law of Arms and Heraldry every one who is made King of Arms before he receives his Dignity ought to be led betwixt two Officers of Arms by the Arms before the Earl Marshal of England or his Deputy and before him are to go four Officers of Arms whereof the one is to bear his Patent another a Collar of Esses the third a Coronet of Brass double guilt fourthly a Cup of Wine and his Patent shall be read before the Earl Marshal and afterwards his Coronet shall be set upon his Head and the Collar of Esses about his neck and afterwards the Wine poured upon his Head And that the Defendant had not received these Ceremonies for which cause he is not King of Arms nor to be called upon to which the Defendant did demur in Law. Broughton argued for the Defendant and he took Exception to the Replication because it is pleaded there that secundum legem Heraldorum Garter upon his Creation ought to receive c. of which Law this Court cannot have Conusance and therefore the Replication ought to be scil Secundum legem Angliae If in Appeal the Defendant wage Battel although that belongs unto Arms and Heraldry yet it shall be pleaded according to the Law of the Land and shall not speak of the Law of Arms. So if an Infant be made a Knight and he be to plead in discharge of his Wardship he shall plead according to the Law of the Land and yet the degree of a Knight belongs to the Law of Arms 11 E. 3. Dower against the Earl of Richmond who was also Duke of Britain who pleaded to the Writ That he was Duke of Britain and not so named in the Writ but the Court did not regard it for they cannot have knowledge of it so not here of the Law of Heraldry Also this Court cannot write to the Heralds to certifie it as they may to the Marshal of the King or to the Bishop But we have sufficiently
the Right of the Complainants come ceo c. with warranty of the said Husband and Wife for which the Complainants did render a Rent of fifty pounds per annum with clause of distress in dictis Manerijs to the said John Amy the Heirs of Amy and also rendred the Tenements aforesaid with the Appurtenances to the said John and Amy for their lives the Remainder to the said Francis their Son in tail the Remainder to the said Amy and her Heirs and that John and Amy dyed by force whereof the said Rent descendeth to the said Plaintiff as Son and Heir of the said Amy and that the said Francis entred into the said Mannors as in his Remainder and was seised in tail and was seised of the said Rent by the Hands of the said Francis and afterwards thereof did enfeoff the said Garmons the Defendant c. The Tenant pleaded That the Plaintiff was never seised so as he could be disseised and if c. Nul tor nul disseisin which was found for the Plaintiff who had Iudgment and Execution upon which the Tenant brought a Writ of Error Stephens assigned Error First the Fine is levyed of two Manors inter alia so as no other Lands passed by the Fine besides the Manors and so the Rent is granted out of the said Lands and Manors and no other Lands which passed by the Fine and then upon the Plaintiffs own shewing it appears that all the Tenants of the Lands charged with the Rent in demand are not named in the Assize Second Error This Rent is granted only out of the Estate tail for Amy hath Fee in both as well the Rent as the Land and then when the Estate tail is determined the Rent is also determined and he hath not averred the life of the Tenant in tail or any of his Issue wherefore it shall be intended that he is dead without issue and then the Rent is gone and then he hath not any cause to have Assise Bourchier As to the first conceived and argued that it is not Error for although these words inter alia c. yet it shall not be intended that the Conusor had any other Lands or that the Rent is issuing out of other Lands than those two Manors which are expressed not inter alia As to the second the continuance of the tail needs not to be averred for the Tenant in tail hath enfeoffed the Tenant of the Land by which the estate tail is discontinued And although the Tenant in tail be dead without issue yet the Rent doth remain until Recovery of the Land by Formedon in the Remainder Fenner Iustice was of opinion Vaugh. Reâ— 175. That the Per nomen should go unto the Mannors only and should not extend to the inter alia For if a man in pleading saith that J.S. was seised of twenty acres of Land and thereof inter alia did enfeoff him per nomen of Green-wead the same shall not have reference to the inter alia but only to the twenty acres And the averment of the continuance of the Tail needs not for the Estate-tail is discontinued Gawdy Iustice was of opinion That the per nomen should go as well to the inter alia as to the two Manors and then all the Ter-tenants are not named in the Assise and the same not to be pleaded for it appears of the Plaintiffs own shewing and there needs no averment of the continuance of the Tail for the cause aforesaid Clench Iustice The per nomen doth refer to all which see by the Fine which shews that other Lands passed by the Fine than the said two Manors And as to the second point he said There needed no averment Gawdy As to the first Error the same cannot be saved by any way but to say That the Conusor was not seised of any other Lands than the said two Manors and then the Fine doth not extend unto it and then no Rent is granted out of it Fenner In the Common Pleas in the great case of Fines it was holden that in pleading of a Fine it needs not to say That the Conusor was seised for if the Conusor or Conusee were seised it is sufficient for such pleading is contrary in it self for a Fine sur conusance de droit come ceo c. doth suppose a precedent Gift It was also objected That here is a confusion in this Fine for the Rent is rendred to the Husband and Wife and to the Heirs of the Wife and the Land is rendred to the Husband and Wife for their lives the Remainder to Francis in Tail the remainder to the Wife and her Heirs And these matters cannot stand together in a Fine but the one will confound the other But as to that it was said that the Law shall Marshall these two renders so as they both shall stand And it is not like unto a Rent-service for a Rent-service issueth out of the whole Estate And therefore if a Remainder upon an Estate for life Eschears the Seigniory is gone even during the life of the Tenant for life which see 3 H. 6. 1. contrary of a Rent-charge For if the Grantee of a Rent in Fee purchaseth the remainder of the Land out of which it is depending out of an Estate for life he shall have the Rent during the life of the Tenant for life And of that opinion were all the three Iustices for the Conusors took by several Acts and the Estate is charged for it cometh under the Grant. Fenner Iustice There is a difference betwixt a Rent service and a Rent-charge or Common for that shall charge only the Possession but a Rent-charge shall charge the whole Estate And therefore if he who hath a Rent-service releaseth to him in the Remainder upon an Estate-tail or for life the Rent is extinct which Gawdy denied And this Case was put The Disseisee doth release to the Lessee for years of his Disseisor nihil operatur But if the Disseisor and Disseisee joyn in a Release to such Lessee the same is good for first it shall enure as the Release of the Disseisor and then of the Disseisee c. CCCXLIV Tedcastle and Hallywels Case Mich. 32 33 Eliz. In the Kings Bench. Debt 2 Roll. 594. 1 Cro. 234 235. IN Debt upon a Bond the Defendant pleaded That the Condition was That whereas John Hallywel had put himself to be an Apprentice to the Plaintiff if the Defendant John Hallywel during his Apprenticeship or any other for him by his consent or agreement take or riotously spend any of the Goods of his said Master the Plaintiff If then the Defendant within one month after notice thereof given to him do pay and satisfie the Plaintiff for all such sums of Monies Wares c. so taken or riotously spent by the Defendant or by any other by his procurement or consent the same being sufficiently proved that then c. The Defendant by protestation Quod nec
Nonage of every Heir but admitting that the Custom were void yet this Action doth not lye for the Defendant hath not entred and taken the profits as Prochein amy in which Case although he was not Prochein amy c. he is chargeable Oâ—â—â—â— Rep. 36 â—3 84. as Prochein amy according to his Claim but here he claimeth by the Custom and Grant of the Lord and not in the right of the Heir and therefore it was adjudged in this time of this Quaere that if one entreth into Lands claiming by Devise where in truth the Land devised is entailed he should not be charged in accompt c. CCCLVIII 20 Eliz. In the Common Pleas. NOte It was holden by the whole Court Exposition of the Statute of 32 and 34. Of Wills. That the Statute of 32 34 H. 8. of Wills did not extend to Lands in London but that the devise of the whole is good And if Houses in London parcel of the possessions of Abbies came to the Crown by Dissolution and he grants them over to hold in chief by Knights service these Lands are devisable But it was holden That the said Statutes as Acts executed extended to Lands in London and shall be good but for two parts And if a man hath Lands in tail and in Fee-simple which are of double the value of the Lands in tail and deviseth all his Lands all the Land in Fee-simple shall pass Dyer One seised of three Manors the one in Capite in Fee and two in Socage in tail and deviseth all his Land in Capite it is good against the King for all Capite Land and he shall be tied to have the Lands in Socage but it shall not bind the Heir And a devise of the third part where all is devised is void as well against the Heir as against the King. And he said That if a man be seised of twenty Acres in Socage and ten Acres in Capite and deviseth two parts of his Lands it is reasonable to say That all the Socage Lands shall pass but if the devise was of two parts of all his Lands it is otherwise for this word All implies that the two parts shall be per my per tout as well Capite as Socage i. e. It was argued by Fenner That the Lands in London are now devisable as they were before the Statute for if the Devisee of Lands in London be disturbed he shall have Ex gravi Querela otherwise it is of Lands at the Common Law and if an Assize of Mortdancester be brought of Lands in London it is a good Plea to say That the Lands are devisable But in an Assise of Mortdancestor of Lands at the Common Law it is not any Plea And if a man gives Lands at the Common Law i. e. not devisable by the Common Law he cannot devise the Reversion for the Statute shall not do wrong to the person i.e. to the Donee who there shall lose his Acquittal But of Lands devisable by custom it is otherwise And if Land in a Burrough was devisable for life by the Custom and afterwards came the Statute of 23 H. 8. which made all Lands devisable now that Land is devisable for life by the Custom and the Reversion by the Statute CCCLIX 20 Eliz. In the Common Pleas. IN an Action of Wast of Wast assigned in a Wood Wast the Iury viewed the Wood only without entring into it And it was holden that the same was sufficient for otherwise it should be tedious for the Iury to have had the view of every stub of a Tree which had been felled Yet Meade Iustice said That if Wast be assigned in several corners of the Wood then the Iury is to have the view of every corner but contrary where Wast is assigned in the whole Wood Vieâ— And if Wast be assigned in every Room of a House the view of the House generally is sufficient And Dyer Iustice said That if Wast be assigned in several places and of some of them the Iury had not the view of that they may find no Wast done CCCLX Sir Thomas Lees Case 20 Eliz. In the Common Pleas. IT was holden per Curiam That whereas Sir Thomae Lee was seised of a Manor Election and aliened the Manor except one Close parcel of the said Manor called Newdick and there were two Closes parcel of the said Manor called Newdick the one containing nine Acres and the other containing three Acres That the Alienee should not chuse which of the said Closes he would have but the Alienor or Feoffor should have the Election which of the said Closes should pass CCCLXI. 20 Eliz. In the Common Pleas. TEnant in tail the Remainder in tail c. Tenant in tail in possession Fines levied by Tenant in tail in Remainder 3 Cro. 211. makes a Lease for three lives according to the Statute of 32 H. 8. and afterwards dieth without issue he in the Remainder before any Entry levieth a Fine the same is good for by the death of Tenant in tail without issue the Free-hold is vested in him in the Remainder in tail And of that opinion was the whole Court. CCCLXII Ferrand and Ramseys Case 20 Eliz. In the Common Pleas. IN an Ejectione firmae brought of a House in London the Defendant pleaded That long time before the Lessor of the Plaintiff had any thing c. One Ann Ramsey was seised in Fee and died seised and that the same descended to William Ramsey as Son and Heir to the said Ann who was disseised by Israel Owen who leased to the Plaintiff upon whom the said William Ramsey did re-enter The Plaintiff Replicando That the said Ann did not die seised said That before the Ejectment one Robert Owen was seised and died seised and from him descended the said House to Israel Owen as Son and Heir of the said Robert absque hoc that the said Israel did disseise the said Ann upon which they were at issue and at Nisi prius in London it was given in Evidence of the Defendants part That Crofton and Langhton were seised in Fee of the said Messuage and by Deed indented conveyed it to one John Ramsey Robert Dakins and four others and their Heirs upon condition that the said Feoffees their Heirs or Assigns should pay to the said Ann and her Heirs six pounds thirteen shillings and four pence And also should enfeoff the said Ann if to the same they were required by the said Ann in her life or within four days next following such Request in Fee unto the use of the said Ann and her Heirs cum quando ad hoc per eandem Annam requisit fuerint and if the said Ann died before such Request that then the said Feoffees or their Heirs should enfeoff such issues of the said Ann or such other persons which the said Ann should name cum quando ad hoc per eandem Annam requisit fuerint or within four days after such
Litis contestationem the right of the Suit is so vested in the Proctor Swinburn 212. that he is a person suable until the end of the Suit and also he reported their Law to be * Bro. Devise 27. 45. Office of Exce 347. Shâ—p Touchstone c. 454. Plowd 345. Orphans Legacy 281. Note It was adjudged contrary to this Mich. An. Dom. 1653. in the Kings Bench. in Doâ—mlowes Case Poph. 11. That if a Legacy be bequeathed to an Infant to be paid when he shall come to the Age of twenty one years if such a Legatory dieth before such age yet the Executor or Administrator of such Legator shall sue for the said Legacy presently and shall not expect until the time in which if the Infant had continued in life he had attained his full age And as to the Prohibition it was argued by Egerton Solicitor General That the Grant aforesaid is not triable in the Spiritual Court As if the said Lady Lodge had suffered a Recovery to be had against her as Executor by Covin c. the same is not examinable in the Spiritual Court but belongs to the temporal Conusans and therefore he prayed a Prohibition But on the other side it was said That if the Prohibition be allowed the Legatory hath no remedy but that was denied for the party might sue in the Chancery And after the Prohibition granted the Court awarded a special Consultation quatenus non extendat ultra manus Executoris quatenus non agitur de validitate facti i. the Grant aforesaid CCCLXXVII Huddy and Fishers Case Hill. 28 Eliz. In the Kings Bench. Debt DEbt was brought upon a Bond the Condition of which was for the performance of Covenants Grants and Agreements in an Indenture And in the Indenture it was recited That in consideration that the said Huddy should build a Mill upon the Land demised by the Defendant to the Plaintiff by the same Indenture Attaint and a Water-course by the Land demised the Defendant leased the said Land to the Plaintiff and the Lease was by the words Dedi concessi And the Plaintiff assigned the breach of the said Covenant in Law in that the Defendant had stopped the said Water-course so made by the Plaintiff upon which they were at Issue and it was found for the Plaintiff upon which the Defendant brought Attaint and the false oath was found and it was moved in Arrest of Iudgment That here is no Issue and then by consequence no Verdict and then no false Oath and then no cause of Attaint for here the Issue is taken upon the stopping of the Water-course which upon the shewing of the party is not any cause of Action for in the Indenture there is not any express Covenant Clause or Agreement that the Lessee should enjoy the Water-course so to be made only there is a Covenant in Law rising upon these words Dedi concessi which cannot extend to a thing not in esse at the time of the making the Indenture Coke who argued for the Defendants in the Attaint resembled this case to the case in 23 E. 3. Garr 77. Where it is holden that the warranty knit to the Manor shall not extend to the Tenancy escheated And 30 E. 3. 14. The Recovery in value shall not be in larger proportion than the Land warranted was at the time of the warranty made So in our case this Covenant shall not extend to any thing which was not in esse at the time of the Covenant made And see 25 Ass 2. where the Court shall reject a Verdict or part of a Verdict c. And because the now Plaintiff might after the Verdict have alledged the same in arrest of Iudgment which he did not he shall not be helped by Attaint but it shall be accounted his folly that he would not for his own ease and to avoid circuity of Action shew the matter in stay of Iudgment As 9 E. 4. 12. by Littleton If a man be Indicted of Felony if the Iudgment be insufficient but he takes not advantage of it but pleads the general Issue and is acquitted he shall never after have a Writ of Conspiracy c. And for another cause Iudgment ought not to be given in this Case because it doth not appear that Execution hath been sued and then here is no party grieved And then this Action being conceived upon the Statute of 23 H. 8. Cap. 3. which gives it to the party grieved doth not lye for a party grieved cannot be intended without Execution sued See 21 H. 6. 55. by Paston False oath Iudgment and Execution do entitle the party grieved to Attaint And see the Stat. of 23 H. 8. which enacts That the party shall be restored to as much as he hath lost therefore he ought to lose by Execution before he be a person able 〈◊〉 bring this Action But as to that matter see the Statute of 1 E. 3. 6. by which it is Enacted That the Iustices shall not leave to take Attaint for the damages not paid so as before the said Statute no Attaint lay before Execution 33 H. 6. 21. by Prisoit 5 H. 7. 22. t. E. 1. Attaint 70. 8 E. 2. Assize 396. And it was moved That for another cause the Attaint doth not lye as it is pursued in Process upon it for the Plaintiff hath not pursued the Statute upon which the Attaint is grounded for the said Statute gives special Process in this case against the Petit Iury Grand Iury and the party viz. Summons Re-summons and Distress infinite but in this Case the Plaintiff hath sued otherwise which is against the direction of the Statute And that was taken to be a material Exception by Clench and Gawdy Iustices for the Verdict doth not save the matter of Process in this case by the Statute of 18 Eliz. which doth not extend to proceedings in penal Causes wâ—â—ch see by the words of the Statute by an express Proviso But Quaere If it be a penal Statute because a lesser punishment is enacted by it than that which was before inflicted upon such offenders And as to the matter of Execution Quaere If the Plaintiff be not pars gravata in hoc only that he is subject to the said Iudgment and so liable to Execution CCCLXXVIII Penruddock and Newmans Case Hill. 28 Eliz. In the Kings Bench. IN an Ejectione firmae Execution 2 Len. 49. the Plaintiff declared upon a Lease made by the Lord Morley and upon Not guilty pleaded this special matter was found that William Lord Mountegle seised of the Manor of D. whereof c. became bounden in a Statute in such a sum to A. who died the Executors of A. sued Execution against the said Lord i. upon the Extendi facias a Libertate issued forth upon which the said Manor was delivered to the said Executors but was not returned It was further found That the said Executors being so possessed of the said Manor the said Lord
good as a new devise in Reversion upon the precedent Condition and not as a Remainder quod Windham concessit but Periam was very strong of opinion That it is a Limitation Two Ioyntenants of a Term A. and B. A. grants his part to B. nothing passeth by it for as a Grant it cannot be good Owen 102. 1 Cro. 314. 1 Inst 186. for as one Ioyntenant cannot enfeost his Companion no more can he vest any thing in him by grant for he cannot grant to him a thing which he hath before for Ioyntenants are seised and possessed of the whole all which was granted per Curiam and Anderson said That if Lands be granted to A. and B. and the Heirs of A. B. cannot surrender to A. for a Surrender is as it were a grant And as a Release it cannot enure for a Release of a Right in Chattels cannot be without a Deed. CCCLXXXIV Hollingshed and Kings Case Hill. 29 Eliz. In the Common Pleas. Debt HOllingshed brought Debt against King and declared That King was bounden to him in a Recognizance of two hundred pounds before the Mayor and Aldermen of London in interiori Camera de Guildhall London upon which Recognizance the said Hollingshed heretofore brought a Scire facias before the said Mayor c. in exteriori Camera and there had Iudgment to recover upon which Recovery he hath brought this Action and upon this Declaration the Defendant did demur in Law because that in setting forth of the Recognizance he hath not alledged That the Mayor of London hath Authority by Prescription or Grant to take Recognizances and if he hath not then is the Recognizance taken Coram non Judice and so void And as to the Statute of West 2. cap. 45. It cannot be taken to extend to Recognizances taken in London which see by the words De his quae recordat sunt coram Cancellario Domini Regis ejus Justiciariis qui Recordum habent in Rotulis eorum Irrotulatur c. And also at the time of the making of that Statute 1 Cro. 186 187. London had not any Sheriffs but Bayliffs and the said Statute ordains that Process shall go to Sheriffs c. But the whole Court was clear of a contrary opinion for they said We will know that those of London have a Court of Record and every Court of Record hath an Authority incident to it to take Recognizances for all things which concern the Iurisdiction of the said Court and which arise by reason of matters there depending Another matter was objected for that the Recognizance was taken in interiori Camera but the Court was holden in exteriori Camera and therefore not pursuant But as to that it was said by the Lord Anderson That admit that the Recognizance was not well taken yet because that in the Scire facias upon it the Defendant did not take advantage then thereof he shall be bounden by his said admittance of it as if one sue forth a Scire facias as upon a Recognizance whereas in truth there is not any Recognizance and the party pleads admitting such Record and thereupon Iudgment is given against him it is nor void but voidable Fleetwood Recorder of London alledged many Cases to prove that the Courts of the King are bounden to take notice Priviledges of London That they of London have a Court of Record for if a Quo warranto issueth to Iustices in Eyre it behoves not them of London to claim their Liberties for all Courts of the King are to take notice of them And at last after many motions the opinion of the Court was for the Plaintiff And it was said by Anderson and in manner agreed by the whole Court That if depending this Demurrer here the Iudgment in London upon the Scire facias be reversed yet the Court here must proceed and not take notice of the said Reversal CCCLXXXV Bedingfeild and Bedingfeilds Case Hill. 29 Eliz. In the Common Pleas. Dower DOwer was brought by Anne Bedingfeild against Thomas Bedingfeild The Tenant out of the Chancery purchased a Writ De circumspecte agatis setting forth this matter That it was found by Office in the County of Norfolk that the Husband oâ— the Demandant was seised of the Manor of N. in the said County and held the same of the Queen by Knights Service in chief and thereof dyed seised the Tenant being his Son and Heir of full age by reason whereof the Queen seised as well the said Manor as other Manors and because the Queen was to restore the Tenements tam integre Primer seisin c. as they came to her hands it was commanded the Iudges to surcease Domina regina inconsulta It was resolved per Curiam That although the Queen be entituled to have Primer seisin of all the Lands whereof the Husband of the Demandant dyed seised yet this Writ did not extend unto any Manors not found in the Office for by the Law the Queen cannot seise more Lands than those which are contained in the Office And therefore as to the Land not found by the Office the Court gave day to the Tenant to plead in chief And it was argued by Serjeant Gawdy for the Tenant That the Demandant ought to sue in the Chancery because that the Queen is entituled to have her Primer Seisin and cited the case of 11 R. 2. and 11 H. 4. 193. And after many motions It was clearly agreed by the Court That the Tenant ought to answer over for the Statute De Bigamis Cap. 3. provides that in such case The Iustices shall proceed notwithstanding such seisin of the King and where the King grants the custody of the Tenant himself 1 H. 7. 18 19. 4 H. 7. 1. A Multo fortiori against the Heir himself where he is of full age notwithstanding the possession of the King for his Primer seisin By the Statute of Bigamis after the Heir was of full age the Wife could not be endowed in the Chancery But now by the Prerogative of the King such wives may be endowed there Si viduae illae voluerint and after many motions The Court awarded That the Tenant should plead in chief at his peril for the Demandant might sue at the common Law if she pleased CCCLXXXVI Hill. 28 Eliz. In the Common Pleas. THe Case was Exchange The Husband was seised of Lands in the right of his Wif the Husband and his Wife both joyned in exchange of the Lands with a stranger for other Lands which exchange was executed the Husband and the Wife seised of the Lands taken in exchange aliened the same by Fine It was holden by Rhodes and Windham Iustices That the Wife after the death of her Husband might enter into her own Lands notwithstanding that Fine And Rhodes resembled it to the case reported by my Lord Dyer 19 Eliz. 358. The Husband after marriage assured to his Wife a Ioynture they both levy a Fine 1 Inst 36.
word Children a good name of purchase But the whole Court was against that conceit for these words in the case At the Assignment of Friendship are not void but shew what person should take if the intent of the party should take effect i. he who the Father by Assignment should enable for no Child shall take but he who the Father shall assign that is part of the contract and although by such Assignment no title accrues to the Child assigned yet without Assignment no Child is capable for by the Lease the Father hath such Liberty that he may assign what Child he will And by Wray If the words of the Lease had been at the assignment of the Father within one month and the Father surcease his month Antea 275. the Interest should not vest in any of the Children And by Ayliff Iustice If the words of the Lease had been to the Husband and wife and their Son John where his name is William nothing should vest And peradventure in this case at the Bar if the Father had assigned his Son then born and had assigned him before or at the time of the Lease i. the delivery of the Lease it had been well enough Note that this Action was brought by Cole Lessee of the Son of the Husband and VVife born at the time of the Lease made And afterwards Wray with the assent of all the rest of the Iustices gave Iudgment that the Plaintiff Nihil capiat per Billam CCCXCII Pasch 26 Eliz. In the Kings Bench. Execution where joynt where several NOte It was agreed by the whole Court and affirmed by the Clerks That if Debt be brought upon an Obligation against two upon a joynt Praecipe and the Plaintiff hath judgment to recover that a joynt Execution ought to be sued against them both But if the suit were by one Original and several Praecipes execution might be sued against any of them CCCXCIII Trin. 26 Eliz. In the Kings Bench. Replevin IN a Replevin The Defendant doth avow for Damage Feasant and shewed that the Lady Jermingham was seised of such a Mannor whereof c. and leased the same to the Defendant for years c. The Plaintiff said That long befor King H. 8. was seised of the said Manor and that the place where is parcel of the said Manor demised and demisable by copy c. and the said King by his Steward demised and granted the said parcel to the Ancestor of the Plaintiff whose Heir he is by copy in fee c. upon which it was demurred because by this Bar to the Avowry the Lease set forth in the Avowry is not answered for the Plaintiff in the Bar to the Avowry ought to have concluded and so was seised by the custom until the Avowant praetextu of the said Term for years entred And so it was adjudged CCCXCIV The Lord Dacres Case Trin. 26. Eliz. In the Kings Bench. Ante 227. Stewardship of a Manor Office of Trust Grants per Copy Deputy Steward IN Ejectione firmae the case was That the Lord Dacres was seised of the Manor of Eversham and that I.S. held the place where of the said Manor by copy for term of his life and the said Lord granted the Stewardship of the said Manor to the now Marquess of Winchester who appointed one Chedle to be his Deputy to keep a court ad traden dum the said Lands I.S. being now dead to one Wilkins by copy for life afterwards the said Chedle commanded one Hardy his Servant to keep the said court and grant the said Land by copy ut supra which was done accordingly the copy was entred and the Lord Dacres subsigned it confirmed it It was further found That Hardy had many times kept the said court both before and after and that the custom of the Manor was that the Steward of the said Manor for the time being or his Deputy might take Surrenders 1 Co. 48. 49. and grant estates by copy And if this estate so granted by Hardy were good or not was the question because by the Servant of the Deputy whereas the custom found did not extend further than the Deputy It was argued that the estate granted ut supra was void for a Deputy cannot transfer his authority over for it is an office of trust See 39 H. 6. 33 34. 14 E. 4. 1. and 6 Eliz. it was adjudged That the Duke of Somerset had divers Stewards of his Lands and they in the name of the said Duke made diverse Leases of the Lands of the said Duke rendring Rent and the Duke afterwards assented to the said Leases and received the Rents reserved upon them and yet after the death of the said Duke the Earl of Hertford his Son and Heir avoided them So here the assent and the subsignment of the copy by the Lord Dacres doth not give any strength to the copy which was void at the beginning against which it was said That to take a Surrender and to grant an Estate by copy is not any judicial Act but meerly an Act of service and no matter of trust is transferred to Hardy for trust is reposed in him who may deceive which can't be in our Case for here is an express commandment which if Hardy transgress it is absolute void for nothing is left to his discretion And the admitting of a Copy-holder is not any judicial Act for there need not be any of the Suitors there who are the Iudges And such a Court may be holden out of the Precinct of the Manor for no Pleas are holden which was concessum per totam Curiam And by Ayliff Iustice If the Lord of such a Manor makes a Feoffment of a parcel of his Manor which is holden by copy for life and afterwards the Copy-holder dyeth although now the Lord hath not any Court yet the Feoffee may grant over the Land by copy again And the whole Court was clear of opinion That the grant for the manner of it was good especially because the Lord Dacres agreed to it And Iudgment was given accordingly CCCXCV Burgesse and Fosters Case Trin. 26. Eliz. In the Kings Bench. IN Ejectione firmae the case was 1 Cro. 48 49. That the Dean and Chapter of Ely were seised of the Manor of Sutton whereof the place where c. is parcel demised and demisable by copy according to the custom and by their Deed granted the Stewardship of the said Manor to one Adams to execute the said office per se vel legitimum suum Deputatum eis acceptabilem Surrenders Afterwards Adams made a Letter of Deputation to one Mariot ad capiendum unum sursum redditionem of one I. W. and I. his Wife and to examine the said I. aforesaid ea intentione that the said I.W. and A. might take back an estate for their lives the Remainder over to one John Buck in Fee Note the Surrender ought be de duobus Messuagiis Mariot took two several
his Parishioner all demands in his Lands his Tithes thereby are not extinct and afterwards a Consultation was granted CCCCXII Lee and Curetons Case Trin. 31 Eliz. Rot. 902. In the Kings Bench. Debt 1 Cro. 153. IN Debt upon an Obligation the Defendant pleaded Non est factum and it was found for the Plaintiff and Iudgment given and afterwards the Defendant brought Error and assigned for Error that the Declaration was per scriptum suum obligat Error without saying hic in Guria prolat to which it was answered by Coke that the same was but matter of form for which a Iudgment ought not to be reversed for that the Clark ought to put in without instruction of the party and so it was holden in a case betwixt Barras and King 1 Cro. 768. 778. 3 Cro. 22. M. 29 30 Eliz. Another Error was assigned because the Iudgment is entred de fine nihil quia perdonat where it should be quod capiatur although the Plea were pleaded after the General pardon and for that cause the Iudgment was reversed for if the pardon be not specially pleaded the Court cannot take notice of it as it was holden in Serjeant Harris Case CCCCXIII Lacy and Fishers Case Trin. 31 Eliz. In the Kings Bench. IN a Replevin the taking is supposed in S. which Land is holden of the Manor of Esthall the Defendant made Conusans as Bailiff of the Lord of the Manor aforesaid and issue was taken upon the Tenure Trial. and it was tryed by a Iury out of the Visne of Esthall only Tanfield The trial is good for the issue ought not to have been tried by both Visnes S. and Esthall for two things are in issue If it be holden or not 2. If it be holden of the Manor of Esthall for which cause the Visne ought to be from both places and the opinion of the Court was That for the manner of it it was not good as if an issue be joyned upon common for cause of vicinage it shall be tried by both Towns See 39 H. 6. 31. by Littleton and Danby and the case in 21 E. 3. 12. was cited in a per quae servitia the Mannor was in one county and the Lands holden in another county the Tenant pleaded that he did not hold of the Conusor and that he was tried by a Iury of the County where the Land was See 2 H. 4. Gawdy denied the Book cited of 21 E. 3. to be Law and the reason wherefore the Visne shall come from both places is because it is most likely that both the Visnes may better know the truth of the matter than the one only Another Exception was taken Exposition of Stat. 21. H. 8. cap. 19. because the Conusans as it seems is made according to the Statute of 21 H. 8. 19. and yet the party doth not pursue the said Statute through the whole Conusans for by the Statute in Avowry or Conusans the party needs not to name any person certain to be Tenant to the Land c. nor to make Avowty or Conusans upon any person certain and now in this Conusans he hath not made Conusance upon any person certain but yet he hath named a person certain to be Tenant c. and in as much as this Conusans is not made either according to the Common-Law or according to the Statute it cannot be good But that Exception was dissallowed by the Court for if the Statute remedieth two things it remedieth one and the Conusance made in form as above was well enough by the opinion of the whole Court. CCCCXIV Diersly and Nevels Case Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass the Defendant pleaded Not-guilty 2 Roll. 682. and if he might give in evidence That at the time of the Trespass the Freehold was to such an one and he as his servant and by his Commandment entred was the question and it was said by Coke That the same might so be well enough and so it was adjudged in Trivilians Case for if he by whose commandment he entreth hath Right at the same instant that the Defendant entreth the Right is in the other by reason whereof he is not guilty as to the Defendant and Iudgment was given accordingly CCCCXV. Savage and Knights Case Mich. 29 and 30 Eliz. Rot. 546. In the Kings Bench. Error Ante 185. 1 Cro. 106. 2 Cro. 109. 654. Sty 91. Yelv. 164. Sty 115. A Writ of Error was brought upon a Iudgment given in Leicester in Debt Tanfield assigned for Error because in that suit there was not any Plaint for in all inferior Courts the Plaint is as the Original at the Common Law and without that no Process can issue and here upon this Record nothing is entred but only that the Defendant summonitus fuit c. and the first Entrie ought to be A. B. queritur versus C c. Clench Iustice a Plaint ought to be entred before Process issueth forth and this Summons which is entred here is not any Plaint and for that Cause the Iudgment was reversed CCCCXVI Rawlins Case Trin. 31. Eliz. In the Kings Bench. IN Trespass for breaking his Close by Rawlins with a continuando It was moved by Coke that the Plaintiff needed not to shew a Regress to have Damages for the continuance of the first Entry scil for the mean profits and that appears by common experience at this day Gawdy Iustice whatsoever the experience be I well know that our books are contrary and that without an Entry he shall not have damages for the continuance if not in case where the Term or estate of the Plaintiff in the Land be determined and to such opinion of Gawdy the whole Court did incline but they did not resolve the point because a Regress was proved See 20 H. 6. 15. 38 H. 6. 27. CCCCXVII Harris and Bakers Case Trin. 31. Eliz. In the Kings Bench. Accompt Damages 3 Len. 192. Collet and Andrews Case 2 Len. 118. 3 Len 149. IN an accompt damages were given by the Iury and it was moved that damages ought not to have been given by way of damages but the damages of the Plaintiff shall be considered by way of Arrearages but see the Case H. 29 Eliz. in the Common Pleas betwixt Collet and Andrews and see 10 H. 6 18. In Accompt the Plaintiff shall count to his damage but shall not recover damages vide 2. H. 7. 13. 21 H. 6. 26. The Plaintiff shall not recover damages expresly but the Court shall adâ— quoddam incromentum to the Arrearages Coke It hath been adjudged that the Plaintiff shall recover damages ratione implicationis non Retentionis CCCCXVIII Mich. 26. Eliz. In the Kings Bench. THe words of the Statute 32 H. 8. cap. 37. of Rents are that the Executor of a Grantee of a Rent-charge may distrain for the arrearages of the said Rent incurred in the life of the Testator so long as the Land charged doth continue in
then the Tenant so distraining them ought to bring them to the Lords Pound which if he shall not do at the next Court he shall be amerced in a certain sum to the Lord of a Manor to be paid and that was holden no good custom because it is against common Right and the common Law for by the common Law and common Reason every one finding Cattel in his own Land Damage Feasant may impound them in his own Land and the Lord is not damnified thereby So it is of a By-law That every one who holdeth so many Acres of Lands in such a Town shall yearly pay a certain sum of mony to the Church of the same Town and shall forfeit for every default of payment thereof twenty pounds such By-law although it hath continued time out of mind yet it is not of any validity because for not payment of the said sum to the Church the Lord of the Manor is not damnified and therefore he shall not have any gain contrary if the penalty had been limited to the Church-wardens because they are bound to repair the Church Another Exception was taken to the form of the Prescription Quandocunque eaedem sepes defensiones in decasu extiterint and that is too general for so they might be in decay by his own default as if he himself wrongfully pull up the Hedges in which case there is no reason but that he should repair them at his own costs and charges and therefore he ought to have pleaded cum in de casu extiterint in the default of the Tenant of the Wood. Another Exception was taken because that here this custom is pleaded particularly and appropriated to the eleven Acres only and is not extended to the whole Manor and to that purpose the case of 40 E. 3. 27. was cited where a custom is applied to one part of a Town as to say that such a House within such a Town is of the nature of Gavelkind and the rest of the Town is guildable See 21 Eliz. Dyer 363. It was adjorned c. CCCCXXXIX Hare and Okelies Case Hill. 20 Eliz. In the Common Pleas. MIchael Hare and others Trespass brought an Action of Trespass against Okelie for breaking of their close and carrying away their corn And upon Not guilty it was found by special Verdict That the said Michael Hare was sole seised of the said Close where c. and so seised exposuit ad culturam Anglice did put forth to Tillage the said Land to the other Plaintiffs in form following viz. That the said Michael should find one half of the Corn sowed and the other Plaintiffs the other half and that the said Land should be ploughed and tilled and the Corn thereof coming should be reaped and cut at the charges of the other Plaintiffs and so cut should be divided by the Shock and the said Michael to have the one half and the other Plaintiffs the other half c. And it was the opinion of the whole Court That notwithstanding these words exposuit ad culturam that no estate in the soil passed to the other Plaintiffs Exposition of words but the said Michael did remain sole seised as before but by Anderson upon the severance of the Corn peradventure a property in the said Corn might be in all the Plaintiffs But because it appeareth that Michael was sole seised and the other Plaintiffs had not any thing in the Land Therefore it was adjudged that they could not joyn in the Action of Trespass for breaking of the Close and therefore it was awarded by the Court that the Plaintiffs nihil Cap. per breve CCCCXL. Beares Case Trin. 30 Eliz. In the Common Pleas. IN a Formedon by Beare Formedon the Defendant pleaded in Bar a warranty with Assets And upon the Issue nothing by descent it was found That the Ancestor of the Defendant whose warranty was pleaded in Bar was seised of Land in the nature of Gavelkind Bar. and by his Will devised the same to his two Sons whereof the Defendant was the Eldest and their heirs equally between them to be divided and it was adjudged no Assets wherefore the Defendant had Iudgment to have seisin of the Land. CCCCXLI Austin and Smiths Case Pasch 30 Eliz. In the Kings Bench. THe Case was Copyholder of Grants That Austin being a Copyholder by License of the Lord leased his Copyhold to Smith for years rendring rent and afterwards by Deed granted the rent to another to have during the Term c. to which Grant the Lessee did attorn Rents 1 Cro. 637. 651. 895. 1 Roll. 598. 1 Inst 317. a. Litt. 151. b. 152. a. and paid the Rent to the Grantee It was holden by Gawdy Iustice That the Grant was good but now it is but a Rent-seck And it was said by some That the Lessor cannot surrender such a Rent unless he surrender the Reversion also Quaere if the Grantee may have an Action of Debt for it It was conceived he could not for he is not party nor privy to the Contract nor hath the Reversion CCCCXLII Underhill and Savages Case Pasch 31 Eliz. In the Kings Bench. SAvage was presented to a Benefice and afterwards was presented to another Pluralities and then purchased a Dispensation which was too late and then was qualified and afterwards accepted the Archdeaconry of Gloucester And Underhill who had the Archdeaconry libelled in the Spiritual Court against the said Savage where it is holden that all Ecclesiastical Promotions in such cases are void and now Savage sued a Prohibition Prohibition It was argued by Atkinson That the Prohibition did lye for the Patron hath his remedy by our Law by a Writ of Right of Advowson See 29 E. 3. 44. If Avoidance be by Cession or Deprivation and the next Presentment come in question it shall be determined by the Kings Court and here when he accepteth of another Benefice it is cession by the Common Law but there ought to be a Sentence but now there needs not any Sentence for by the Statute of 21 H. 8. Archdeaconry 13. the Church is ipso facto void But it was objected An Archdeaconry is not within the Statute for it is not any Cure with Souls also an Archdeaconry is a late Promotion and therefore it cannot be void by the Statute Lewknor contra The Patronage here doth not come in debate but if the Defendant in the Spiritual Court will plead That the Plaintiff is not Patron but such an one then a Prohibition lieth withal the Iustices granted and it was said by Wray That a Doctor of the civil Law had been with him and affirmed to him that their Law is That if one having a Benefice with cure of Souls accepts an Archdeaconry the Archdeaconry is void but he said That he conceived that upon the Statute of 21 H. 8. the Law is qualified by reason of a Proviso there scil Provided that no Deanry Archdeaconry c.
Iustice It was a great offence in the Plaintiff but the same ought to be punished according to Law but the Constable cannot imprison a Subject at his pleasure but according to Law i. to stay him and bring him before a Iustice of the Peace to be there examined Wray If the Defendant had pleaded that he stayed the Plaintiff upon that matter to have brought him before a Iustice of Peace it had been a good Plea. Fennor The justification had been good if the Defendant had pleaded that the Plaintiff refused to carry away the Child so all the Iustices were of opinion against the Plea but they would not give Iudgment by reason of the ill Example but they left the parties to compound the matter CCCCLXIII Cole and Walles Case Pasch 33 Eliz. In the Kings Bench. Ejectione Custodiae lieth not upon a Copy-hold Estate 1 Cro. 224. IN an Ejectione Custodiae the Plaintiff declared that A. was seised of the Manor of D. within which Manor are diverse Copyholds of Inheritance and that the Custom of the Manor is that if any Copy-holder of Inheritance of the said Manor dieth his heir within the age of 14 years that then the Lord of the Manor might grant the custody of his Body and Lands to whom he pleased and shewed that one Clevertie a Copyholder of Inheritance of the said Manor died his son and heir within the age of 14 years Hob. 215. Dyer 302 303. upon which the Lord of the Manor committed the custody of his Body and Lands to the Plaintiff and the Defendant did eject him and upon Not guilty it was found for the Plaintiff It was moved in arrest of Iudgment That this Action would not lye upon a Copyhold estate Quod tota Curia concessit and yet it was said that an Ejectione firmae lieth upon a demise of Copy-hold Land by Lease of a Copyholder himself but not upon a demise by the Lord of the Copyhold Quod fuit concessum and afterwards the Case was moved on the Plaintiffs side and it was said That this was but an Action upon the Case in the nature of an Ejectione firmae and this interest is not granted by Copy but entred only into the Court Roll so it is not an interest by Copy but by the Common Law for the words are Quod Dominus commisit custodiam c. and doth not say in Curia and afterwards Iudgment was given for the Plaintiff CCCCLXIV Bond and Bailes Case Trin. 33 Eliz. In the Kings Bench. Judgment upon a Bond where satisfied before a Statute â— Len. 37â— Roll. 926. BOnd brought a Scire facias against Bailes Administrator of one T. B. upon a Recovery had against the Intestate in Action of Debt The Defendant pleaded That before the said Iudgment given the Testator did acknowledge a Statute Staple to one C. and that the Son was not paid in the life of the Testator nor after and that they have not in their hands any goods of the Intestate beyond what will satisfie the said Statute upon which there was a demurrer in Law. And Coke argued That the Bar is not good for here is not pleaded any Execution upon the Statute and then the Iudgment the Statute being of things of as high nature that of which Execution is sued shall be first served and if this Action had been brought upon a Bond the Plea had not been good for although that Brian saith 21 E. 4. That Recognizances shall be paid by Executors before Bonds yet that it is to be intended when a Scire facias is to be sued upon it otherwise not And 4 H. 6. 8. in a Scire facias upon a Iudgment fully administred at the day of the Writ brought is a good Plea by which it appeareth That if the Executors had paid the Debt upon the Obligation before the Writ brought it had been good See 12 E. 3. Executors 73. in a Scire facias upon a Iudgment in Debt given against the Testator Enquiry shall be what goods the Executors had the day of the Scire facias and he said it was moved by Anderson 20 Eliz. in this Court. In Debt upon a Bond against Executors the Defendant pleaded that the Testator was indebted by Iudgment to A. and that they had not more than to satisfie the same and it was holden no plea if not that he pleaded further that a Scire facias was sued upon it Wray said The same is not Law and there is a difference when the Iudgment is given against the Testator himself and where against the Executors for where Iudgments are given against Executors the Iudgment which was given before shall be first executed but if two Iudgments be given against the Testator he who first sues Execution against the Executors shall be first satisfied because they are things of equal nature and before Suit it is in the election of the Executor which of them he will pay See 9 E. 4. 12. As if two men have Tallies out of the Exchequer he which first offers his Tally to the Officer shall be first paid but before that it is in the choice of the Officer which of them shall be first satisfied and therefore 19 H. 6. If the Lease enrolled be lost the Enrolment is not of any effect and Pasch 20 Eliz. our very case was moved in the Common Pleas in a Scire facias upon a Iudgment given against the Testator the Executor pleaded That the Testator had acknowledged a Statute before not satisfied Ultra quae c. and it was holden no Plea for a Statute is but a private and pocket Record as they called it and 32 Eliz. betwixt Conny and Barham the same Plea was pleaded and holden no Plea. Also if this Plea should be allowed Conny and Barhams Case great mischiefs would follow for then no Debts should be satisfied by the Executors for it might be that the Statute was made for performance of Covenants which Covenants perhaps shall never be broken and afterwards Iudgment was given for the Plaintiff CCCCLXV Crew and Bails Case Trin. 32 Eliz. In the Kings Bench. A Writ of Error was brought upon a Iudgment given in the Common Pleas Error 1 Cro. 216. in a Bill of priviledge brought by an Attorney of the said Court upon an Obligation and upon the said Iudgment issued forth process of Execution upon which the Defendant was Outlawed and the Error was assigned in this That upon that Iudgment process of Outlawry doth not lie for Capias is not in the original Action Priviledge and so was the opinion of the whole Court being upon a Bill of priviledge and the Outlawry was reversed and the Error was assigned in the first Iudgment because there were not fifteen days betwixt the Teste of the Venire facias and the return of it but that was not allowed for it is helped by the Statute of 18 Eliz. cap. 14. CCCCLXVI Wade and Presthalls Case Trin. 30 Eliz. In the Kings
appeareth upon his own shewing as it was holden in a Hampshire Case betwixt Sutton and Dowze Sutton and Dowzes Case 2 Len. 55. 3 Len. 155 164. which see Mich. 25 26 Eliz. and in that case the Lease is void for it was made within a year after the Statute of 31 H. 8. the January before and the Statute in April after for he hath not averred that the usual Rent is reserved nor that the Land was usually let to farm for which Leases otherwise made within the year are absolutely void by the said Statute But it will be objected Ante 306. 1 Cro. 707 708. Heydons Case That this matter shall come in of our part and it is sufficient for them to plead the Case but it is not so as it was lately agreed in Heydons Case in the Exchequer where the Case was That the Warden and Canons of the Colledge of Otery leased certain Lands to Heydon for years and he in pleading of his Lease did not shew that the ancient Rent was reserved and therefore naught and so was the opinion of the Iustices of the Common Pleas Lord Cromwel and All-Souls Case in the Case betwixt the Lord Cromwel and All-Souls Colledge upon the Statute of 18 Eliz. cap. 6. upon a branch of it by which it was provided that the third part of the Rent reserved upon any Lease should be paid in Corn c. and the Leases made to the contrary should be void and in an Ejectione firmae brought upon such Lease because it was not shewed in the Declaration that the Corn was reserved according to the Statute Iudgment was arrested and we need not to plead the Statute for although the Statute be particular yet because the King hath interest in it it shall be holden in Law a general Act and the Iudges shall take notice of it although it be not alledged by the party as it was ruled in the Lord Barcklays Case 4 Eliz. Plow 231. but if such Rent was reserved yet the Lease cannot be good for the King cannot have his Rent because it is not incident to the Reversion nor passeth by the Grant of the Reversion for it is not a Rent but rather a sum due by reason of contract which see 30 Ass 6. A man leaseth a Hundred rendring Rent or grants a Rent out of a Hundred the same is not a good Rent but meerly void for a Hundred is not Manorable nor can be put in view nor any Assize lieth of such Rent See 9 Ass 24. and in 20 Eliz. in the Case betwixt Corbet and Cleer 7 Co. 5. Corbet and Cleers Case the Dean and Chapter of Norwich leased a Parsonage and common of Pasture rendring Rent 1 E. 6. they surrendred their possessions to the King and afterwards the King granted the Parsonage without speaking of the common of Pasture It was holden that the Patentee of the Parsonage should have all the Rent and no apportionment should be in respect of the Common for all the Rent issueth out of the Parsonage and nothing out of the Common So here 2 Co. 48. for Tithes are not an Hereditament which cannot support a Rent within this Statute for which cause the Lease is void Also he said that the traverse of the Defendant was not well taken for the Plaintiff hath said That time out of mind c. the Abbot and his Predecessors were seised of the Rectory and Manor aforesaid simul semel and ratione inde was discharged c. at the time of the dissolution the Defendant traverseth absque hoc that the Abbot and his Predecessors held discharged of Tithes time out of mind c. which is not good for he hath traversed our conclusion for our plea is an argument wheresoever is unity time out of mind c. there is a discharge of Tithes but in the Abbot was such an Vnity ergo he held discharged of Tithes as 21 E. 3. 22. In a Praecipe quod reddat the Tenant saith that the Land in demand is parcel of the Manor of D. which is ancient Demesn and c. to which the Plaintiff saith That it is Frank-fee and the same was not good for he denies the conclusion but he ought to plead to the nature of the Manor that it is not ancient Demesn or that the Land in demand is not parcel of it Another matter was because it is pleaded fuit in tenura occupatione of Goodman and others but he did not shew by what Title Disseisin or Lease or other Title c. Buckley contrary And he said This unity of possession is not any discharge of Tithes by the said Statute and as to the Case cited before of 3 H. 7. 12. where Tenant in tail of a Rent entreth upon the Tenant of the Land now is the Rent suspended and then after when he makes a Feoffment in fee by that Feoffment the Rent is extinguished which was but suspended at the time of the Feoffment and therefore some have holden that if after such Entry he makes a Lease for life of the Land that his Rent or Seigniory is utterly gone in perpetuum for by the Livery all passeth out of him which he said cannot be Law and so it seemed to Gawdy Iustice Then upon such Feoffment with warranty he could not vouch as of Land discharged of the Rent generally but as of Land discharged at the time of the Feoffment which proves that the suspension is not a discharge for it was suspended before the Feoffment and discharged by the Feoffment and so suspension is not a discharge à fortiori in the Case of Tithes for in the case of Common and Rent although they are suspended so as they cannot be actually taken yet they are to some intent in esse As where Lands holden of other Lords are in the hands of the King for Primer seisin by reason of Prerogative and during such seisin of the King the Lord gets seisin the same is a good seisin notwithstanding that it was suspended so as he could not distrain And also in Assize of Land damages as to the Rent out of the Land shall be recouped therefore the rent in some sort is in esse and à multo fortiori this Tithe which is a thing of common Right shall be in esse but goes with the Land A Rent in esse to some purposes and suspended to other and therefore by unity of possession shall not be suspended 35 H. 6. He who hath liberty of Warren in the Lands of another entreth into the Land the Warren is not suspended nor by Feoffment of the Land is extinct and in this Case upon the matter during the unity of possession the Tithes were paid although not in specie Also the Abbot had the Tithes as Parson of B. and the Land as Abbot and therefore no suspension for the Tithes were always in esse although not taken in the manner as Tithes commonly are but by way of Retainer 22
293 306 362 383 387 409 436 Construction of them 16 42 To Executors to sell 38 42 78 254 To an use 342 Diminution 28 Distress 16 64 78 315 338 Discontinuance of suit 142 Discontinuance of Lands and Estate 150 157 172 Distent 154 163 Where it takes away Entry 293 Disseisin 163 Dower 48 71 118 119 187 233 383 Of Gavelkind 83 182 431 Dutchy Lands 307 The Kings prerogative in them 15 E. EJectione firmae 331 Not of a Tenement 265 Ejectione Custodiae lieth not of a Copihold estate 463 Elegit 65 247 Election 36 52 67 92 289 342 360 Enrolment 10 Endowment 13 Enfant 156 297 Entry 46 66 79 163 165 427 446 For forfeiture 345 Enquiry of damages 197 278 Escape 165 145 203 321 274 Estates 150 219 221 297 288 311 Vested shall not be divested 345 Essoin 184 Estoppell 122 220 224 286 437 Error 12 28 52 71 137 207 228 238 245 246 260 452 By Executors to reverse an Attainder of their Testator 452 278 317 327 328 343 346 363 397 402 412 415 445 365 By Journeys accounts 28 Upon Outlawry 37 Upon Recovery in Assize 69 In assessing damages 71 For want of Averment 121 Upon a common Recovery 181 To reverse a Fine by an Enfant 445 Evidence 70 192 215 414 Exchange 386 Executors 78 311 459 Where they shall have Error or other Actions 459 Where charged of their own goods 87 121 153 Renunciation of them 185 Have action de bonis testatoris 278 Execution 65 202 247 460 200 313 378 Where joynt where several 392 Against a person attainted where not 466 Exception 158 160 79 Extortion 114 327 Extent 366 Extinguishment 15 135 250 56 Exposition of words and sentences 240 326 439 468 Of the word De and vocat 22â— Of the word Term 306 Of the word Uterque 326 Of the Statute of 32 and 33 H. 8. 358 Of the Statute of 21 H. cap. 19. 413 Examination who is to be examined upon the Statute of 27 Eliz. of Huy and Cry 456 F. FAlse imprisonment 462 Feoffments and faits 31 171 172 204 256 288 Per nomen 343 Upon condition 361 Feme covert 166 Fine upon Jurors 181 For Alienation without License 11 50 113 Not paid by Non compos mentis 11 Not payable upon settlement by Parliament 113 Post Fines 338 Fines levied 51 66 81 85 102 187 188 297 330 Where shall not bind a Feme covert 386 Reversed 157 445 Where shall be a breach of Condition 409 Levied by Prescription 265 By Tenant in tail in Remainder 361 Formedon 105 154 Forgery of false Deeds 192 Forfeiture 51 66 84 139 171 297 254 400 Founder and Foundation 49 Fresh Suits 72 Fugitives 12 G. GUardian in socage 454 Gavelkind 154 450 Grants 205 433 380 Of Executors of omnia bona sua 351 Grants of the King 12 33 36 49 162 179 237 280 334 338 451 467 Grants insufficient in point of Limitation shall not be supplied with subsequent words 14 H. HAbendum 13 73 446 Habeas Corpus 93 94 460 I. INtrusion 12 46 49 223 Indictments 9 146 337 363 404 Upon the Statute of 8 H. 6. 461 Upon the Statute of 23. of Recusancy 321 326 322 Upon the Statute of News 390 Informations 162 Upon Statute 1 Eliz. 405 Upon Statute of 23 Eliz. cap. 6. 60 Upon the Statute of Usury 125 161 Upon the Statute of Maintenance 231 291 Upon the Statute of 5 Eliz. for Tillage 319 Joynture 44 205 Joynder in Action 402 439 445 Issue 89 169 192 241 Judgment 89 428 In the Kings Court not defeated by particular customs 35 Where satisfied before a Statute 464 Jurors receiving mony doth not make the Verdict void 21 Fined for eating 181 Justification 462 K. KIng not bound to demand Rent 16 L. LEases 44 46 165 198 205 239 274 286 308 316 320 332 391 425 446 454 By Bishops 77 By Guardian of a Colledge 183 Within the Statute of 13 Eliz. 427 Leet 33 Letter of Attorney 427 Livery of Seisin 10 48 276 287 349 427 Doth prevent Enrolment 10 Libel in spiritual Court 13 127 151 174 175 M. MArriage 67 235 In right and possession 67 Mannor 33 289 Misnosmer 25 49 183 204 298 In Indictments 337 Where material where not 228 Mittimus 200 Monstrans de droit 279 Monstrans de faits 427 N. NOn-residency 129 Non-suit 142 Notice 39 139 141 Nusance 234 318 O. OBligation 129 132 164 192 214 281 Office of Marshal of the King 451 Of Herald 337 Of Marshal of the Kings Bench 451 Office Trove 27 50 85 223 Outlawry 84 280 108 148 190 Lies not upon a Judgment upon a Bill of Priviledge 465 P. PArtition 33 68 136 283 Payment where not good to the Wife 450 Post Fines 338 Plaint 415 Plenarty no Plea against the King 307 Pleadings 21 84 102 167 169 176 186 211 274 339 407 430 449 Non cepit where good 47 Nul tiel Record 85 114 Where Recovery is no Bar 90 Wherein Pleading must make a Title 58 Non damnificatus 95 General and particular ib. Good to common intent 102 Of a Fine ib. Amounts to the general Issue 251 Of Nonest factum 257 453 Out of his Fee 294 Fully administred 434 In disability where not allowed 466 Property 54 Primer seisin 85 341 Protection 93 258 Priviledge 365 Of Exceptions from Juries 287 Of London 384 Plurality 442 Prerogative 11 15 Prescription 14 100 102 143 147 199 249 299 315 336 Words of it 318 In a Stranger not Tenant 14 To erect Herdels 14 147 Where it shall not bind the King 438 For Common 100 To be a Justice of Peace 143 To levy a Fine not good 265 To distrain for Amerciaments 327 To Repair 438 by taking Wood in the Lands of another Man ib. Presentation 50 58 84 207 Repealed by the King 218 Passeth not by a Grant of Bona Catalla 28 By the Bishop who Collates shall not put the King out of possession 307 Praemunire 399 Proof 349 Process 65 Prohibition 123 127 174 175 176 177 208 255 325 336 376 367 318 325 388 411 442 467 Q. QUare Impedit 39 50 58 84 85 190 277 213 232 278 280 284 307 312 284 289 455 Causes of Refusal when good c. contr 39 312 R. RAzure of Deeds 381 Ravishment of Ward 152 Refusal of the Bishop 312 Remitter 40 48 85 118 172 Remainder 134 256 266 336 Upon a Contingent 330 Remitter 48 Redisseisin 90 Receipt 105 Retainer 153 320 Return of the Sheriff 65 200 201 202 312 459 Relation 11 355 Of matter of Record 257 Of a Judgment 264 Of an Execution 423 Rents 187 198 209 280 362 441 Reserved upon a Lease of Dutchy Lands 15 To be paid without demand ib. Charge parcel of a Manor 18 Cannot issue out of a Right 205 Charge out of Copyholds 8 Suspended by Entry 110 240 How to be demanded and when severally 271 425 In esse to some purposes and suspended to others 467 Reputation 18 33 49 Replication 56 102 194 Reversion 362 Cannot pass without Deed 429 Reservation 25 446 Restitution 461 Request 167 303 389 Repleader 102 114 Replevin 33 54 56 64 294 Revocation 113 Recovery 30 In Assise where a Bar 30 Vouchee must appear in person 101 Common Recovery by an Infant 296 S. SAles 225 Seals 12 310 Seisin 271 356 In Fact and in Law 318 Seisure 12 84 119 Scire facias 58 84 187 402 Where for the King è contr 84 Against Executors 84 Upon Audita Querela 195 Summons and Severance 445 Stewards of Manors and Courts 309 294 444 Statutes Construction of them 44 Where they ought to be pleaded where not 427 Supersedeas 189 Sur cui in vita 210 Surrenders 378 385 420 226 454 By the Steward out of Court 309 Vide Copyholds Amounts to an Attornment 408 Of one Termor to another not good 420 By Attorney not good 45 T. TAil 297 Tenant by the Curtesie 233 Tender 88 95 Upon a Mortgage 43 Upon an Award 55 Where it is no Revocation of uses 113 Toll 315 Traverse 12 49 53 56 58 64 68 102 207 213 277 304 331 340 429 467 Where the descent where the dying seised 429 Trespass Vi armis 110 Trover and Conversion 304 305 335 Not against a Feme Covert 433 Tithes 13 25 122 174 175 177 208 325 336 367 380 411 467 In London 25 Become Lay Chattels 29 Jurisdiction of them 76 Claimed by Prescription ib. Discharged by Unity 467 Trial 67 116 148 203 206 255 285 310 413 V. VAriance 175 228 33â—â— Verdict 86 118 181 426 View 30 106 59 Usurpation 58 84 307 Uses 188 288 330 What it is 279 And Declaration of them ib. Not rise out of an Use 10 Not out of a Possibility 279 Contingent raised 31 Void for want of Consideration 279 Limitation of them ib. Raised by Covenant and by Feoffment do differ ib. Suspended yet the Land devised 345 Contingent shall bind the Execution of an Estate in possession 345 Executed to the Possession 409 W. WAger of Law 119 229 282 VVardship 347 VVarning 82 VVills 155 311 VVitherâ—â—m 302 VVarrant of Attorney 246 VVarranty 252 VVast 62 79 86 220 282 359 By Cestuy que use 409 VVrit To the Bishop 84 85 278 289 Of right 212 236 the manner of proceeding in it 419 Of Enquiry of damages 278 FINIS
as other Writs and Praecipes are returnable in any Court but the Queen her self from whom originally it came shall receive it and also the Message upon it and she her self in such case is Iudge of the contempt and no Record of that Privy Seal doth remain in any Court but the Queen her self shall keep it and then when the Queen is informed of the contempt she makes a Warrant somtimes to the Chancellor to award a Commission somtimes to the Treasurer and Barons of the Exchequer to the same purpose to seize the Lands and that Warrant is signed with the Seal manual of the Queen and the Queen may certifie and set down the cause of such seizure in such Warrant and no other Certificate is made by the Queen and the Queen may certify the same Commission by word of mouth and if the other party will say that the Queen hath not certified it he shall be concluded by the commission which is under the great Seal and diverse Prsidents were shewed openly in Court to that effect And all the matter aforesaid was agreed by the Chancellor Treasurer and the said Iustices and no certificate at all needs to be in the Case and then a superfluous Certificate being nought shall not hurt for Nugation is surplusage Another matter was to consider what interest the Queen hath in the Lands of Fugitives by the common Law And as to that they were all clear of opinion Fugitives that the Queen in such case as aforesaid may seize and assign her interest over And that such Assignees may grant Copy-holds parcel of the Manor assigned which grants shall bind him who cometh in after cum manus Domini regis amoventur and also when the Statutes of 13 and 14 Eliz. come Dy. 375 b. the Statutes do not amend the estate of the Queen but the estate of the Queen doth continue as before and all the Estates under it And there was shewed unto the Court divers Presidents of seizures in such Cases 18 E 2. Edmond de Woodstock Earl of Kent went beyond Sea without Licence of the King and he went with Robert de Mortimer and the King did certifie the same into the Chancery reciting that he had sent his Privy Seal c. but that the said Edmond spretis mandatis nostris redire recusavit upon which issued a commission to seize c. And it was holden that the Queen having seised hy force of the common Law and making a grant of a Copy-hold out of it now when the Statutes of 13 14 Eliz. are made she hath not any estate thereby for she had such interest before and this new seisure after the Statutes works nothing and nothing accrues to her thereby whereof she can make a seisure For she hath departed with the whole before See 23 Eliz. Dyer 376. And note that the grant of the Queen in the case at Bar was quamdiu in manibus nostris fore contigerit And afterwards Iudgment was given that judicium praedictum in omnibus affirmetur XIII Sutton and Dowses Case Ter. Mich. 25 26 Eliz. in the Common Pleas. SUtton Vicar of Longstoke Libelled against Dowse in the spiritual Court Tithes and shewed in his Libel that upon the Erection and Endowment of his Vicaridge four quarters of Corn were assigned to the Vicar out of the Granary of the Prior of B. of the Tithes of the Parson of Longstoke and that the Parson or Fermor of the said Rectory of Longstoke had always paid the said four Quarters of Corn to the said Vicar and all his Predecessors and alledged further that the Lord Sands was seised of the said Rectory and leased the Barn and Tithe-Corn parcel of the said Rectory to the said Dowse his Wife and Son Habendum to Dowse for Term of his life the Remainder to the Wife for Term of her life the Remainder to the Son for life And shewed further that the said Dowse had covenanted with the said Lord Sands to render the said four Quarters of Wheat to the Vicar and his Successors upon which Dowse procured a Prohibition and Sutton prayed a Consultation and it was moved in stay of the Consultation that the Vicar had Libelled upon a Covenant wherein Dowse is taxed to pay the said Corn and that is a lay Title and determinable by the Law of the Land and not in the Ecclesiastical Court But as to that the opinion of the Court was that the Libel is not grounded upon the covenant as the sole Title to the said Corn against Dowse but upon the Endowment of the Vicaridge and the Lease by which Dowse is become Fermor of the Rectory Another matter was moved because that upon the Libel it appeareth that the Lease aforesaid made by the Lord Sands was made to Dowse his Wife and his Son joyntly in the Premisses Habendum ut supra in which case it was objected that Dowse his Wife and his Son are all three Fermors of the said Barn and Tithes joyntly in possession against all whom Sutton ought to have Libelled c. and not against Dowse only for the Habendum hath not severed their estates which were joynt before Co. 1 Iust 783 l. qund tota curia negavit for the Habendum hath severed the joynt estates limited by the Premisses and hath distinguished it into Remainders but if the Habendum had been Habendum successive the estate had remained joynt Another matter was moved because it appeareth upon the Libel that the Parson or Fermor of the said Rectory ought to pay to the Vicar the said Corn and also it appeareth upon the matter that Dowse is not Parson nor Fermor of the said Rectory for the Lord Sands had leased to Dowse and his Son only the Barn and the Tith-Corn parcel of the said Rectory so as Dowse is Fermor but of parcel of the Rectory and the residue of the Rectory doth remain in the Lord Sands in which the said Sut. ought to have Libelled against the Lord Sands and Dowse and not against Dowse only And for that cause the Consultation was denyed And in this case it was further agreed by the Court that if upon a Libel in the spiritual Court the Defendant makes a surmise in Banco to have a Prohibition if such surmise be insufficient the other party needeth not to demur upon it and to have it entred upon Record but as amicus Curiae he shall shew the same to the Court and the Court shall discharge him XIV Punsany and Leaders Case Mich. 25 26 Eliz. In the Kings Bench. OSmond Punsany brought an Action upon the case against Leader and declared Prescription of Foldage that one Bedingfield was seised of the Manor of D. and that he and all those whose estate he hath in the said Manor time out of mind have had Libertatem Faldagij cursum Ovium in the Town of D. pro meliori pasturatione omnium Ovium suorum the Inhabitants of the said Town having any