de se by Inquisition and then comes an Act of Indempnity that shall not divest the King of his Right But where nothing Vests before the Office found a Pardon before the Inquisition extinguishes all Forfeitures as it was resolved in Tomb's Case So if the Pardon in this Case had come before the Presentation the Party had been restored Statu quo c. The King can do no more the Bishop is to do the rest neither is the Presentation revoked by this Act it might have been revoked by implication in some Cases as where there is a second Presentation but such a general revocation will not do it and Iudgment was given for the Plaintiff and a Writ of Error brought but the Cause was ended by Agreement Hill versus Pheasant Gaming at several meetings whether within the Statute AN Action of Debt was brought upon the Statute of 16 Car. 2. cap. 7. made against deceitful and disorderly Gaming which Enacts That if any person shall play at any Game other than for ready Mony and shall lose any Sum or other thing played for above the Sum of 100 l. at any one time or meeting upon Tick and shall not then pay the same that all Contracts and Securities made for the payment thereof shall be void and the person winning shall pay treble the Mony lost It happened that the Defendant won 80 l. at one meeting for whcih the Plaintiff gave Security and another meeting was appointed and the Defendant won 70 l. more of the Plaintiff being in all above 100 l. And if this was within the Statute was the Question The like Case was in the Kings-Bench Trin. 25 Car. 2. Rot. 1230. between Edgberry and Roseberry and in Michaelmas Term following this Case was argued and the Court was divided which the Plaintiff perceiving Anonymus Postea desired to discontinue his Action but the better Opinion was that it was not within the Statute though if it had been pleaded That the several meetings were purposely appointed to elude the Statute Sid. 394. in might be otherwise Calthorp versus Heyton Traverse not good viz. Absque hoc quod legitimo modo oneratus IN Replevin The Defendant avowed for that the King being seised in Fee of a Mannor and of a Grange which was parcel of the Mannor granted the Inheritance to a Bishop reserving 33 l. Rent to be yearly issuing out of the whole and alledges a Grant of the Grange from Sir W. W. who claimed under the Bishop to his Ancestors in Fee in which Grant there was this Clause Viz. If the Grantee or his Heirs shall be legally charged by Distress or with any Rent due to the King or his Successors upon account of the said Grange that then it should be lawful for them to enter into Blackacre and distrein till he or they be satisfied And afterwards the Grantee and his Heirs were upon a Bill Exhibited against them in the Exchequer decreed to pay the King 4 l. per Annum as their proportion out of the Grange for which he distreined and so justified the taking The Plaintiff pleads in barr to the Avowry and traverseth that the Defendant was lawfully charged with the said Rent and the Defendant demurred Baldwyn Serjeant maintained the Avowry to be good Ex parte Def. having alledged a legal charge and that the Barr was not good for the Plaintiff traverseth quod Defendens est ligitimo modo oneratus which being part matter of Law and part likewise matter of Fact is not good and therefore if the Decree be not a legal charge the Plaintiff should have demurred But on the other side it was argued by Seys Serjeant Ex parte Quer. That the Avowry is not good because the Defendant hath not set forth a legal charge according to the Grant which must be by Distress or some other lawful way and that must be intended by some execution at Common Law for the coactus fuit to pay is not enough a Suit in Equity is no legal disturbance Moor 559. The same Case is Reported in 1 Brownl 23. Selby versus Chute Besides the Defendant doth not shew any Process taken out or who were Parties to the Decree and a Que estate in the Case of a Bishop is not good for he must pass it by Deed. North and the whole Court A Rent in the Kings Case lies in Render and not in Demand and after the Rent day is past he is oneratus and the Decree is not material in this Case for the charge is not made thereby but by the Reservation for payment whereof the whole Grange is chargeable The King may distrain in any part of the Land he is not bound by the Decree to a particular place that is in favour only to the Purchasor that he should pay no more than his proportion As to the Que estate the Defendant hath admitted that by saying bene verum est that Sir W. W. was seised The Traverse is ill and Iudgment was given for the Avowant Vaughan versus Wood. Trespass justified for taking corrupt Victualls Mod. Rep. 202. TRespass for taking Beef The Defendant pleads a Custom to choose Supervisors of Victuals at a Court Leet That he was there chosen and having viewed the Plaintiffs Goods found the Beef to be corrupt which he took and burned The Plaintiff demurrs for that the Custom is unreasonable and when Meat is corrupt and sold there are proper remedies at Law by Action on the Case or presentment at a Leet 9 H. 6. 53. 11 Ed. 3. 4. 6. Vide Stat. 18 Eliz. cap. 3. But the Court held it a good Custom and Iudgment was given for the Defendant the Chief Iustice being not clear in it Chapter of Southwel versus Bishop of Lincoln Grant of next Avoidance not bind the Successor Mod. Rep. 204. IN a Quare Impedit the Question upon pleading was Whether the Grant of the next Avoidance by the Chapter was good or not to bind the Successor The doubt did arise upon the Statute of 13 Eliz. cap. 10. which was objected not to be a publick * Yelv. 106. Act because it extends only to those who are Ecclesiastical persons or if it should be adjudged a publick Law yet this is not a good Grant to bind the Successor for though the Grant of an Avoidance is not a thing of which any profit can be made yet it is an * Cro. Eliz. 441. Hereditament within the meaning of that Statute by which among other things 't is Enacted That all Grants c. made by Dean and Chapter c. of any Lands Tythes Tenements or Hereditaments being parcel of the Possessions of the Chapter other than for the Term of 21 Years or 3 Lives from the time of the making the said Grant shall be void But it was agreed by the Court to be a general Law like the Statute of Non Residency which hath been so ruled and that this Presentment or Grant
Statuti if there be any other Statute which prohibits and punishes a Riot this Information is as well grounded upon such as upon this Statute of Philip and Mary for 't is expresly said that the Defendant and others did unlawfully assemble themselves together and riotose routose made an Assault upon her so that it shall be intended to be grounded upon such a Law as shall be best for punishing the Offence The Court were of Opinion Curia That notwithstanding these Exceptions the Information was good and was not like the Case of an Indictment upon the Statute for a forceable Entry That such a day by force and arms the Defendant did Enter into such a House 2 Cro. 14610 639. existen ' liberum tenementum of J. N. and if he doth not say tunc existen ' the Indictment is naught because the Iury may enquire of a thing before it is done but here the existen being added to the person carries the sense to the time of the Offence committed The Statute of 1 R. 3. saith that all Grants made by Cestui que use being of full Age shall be good against him and his Heirs and 't is adjudged 16 H. 7. that he need not shew when and where but generally existen ' of full Age and upon the Evidence it must be so proved Where a thing relates to the Condition of a Man it shall be tryed in the County where the Action is laid and 't is not necessary to say in what County he is a Knight or an Esquire any Citizen and Freeman may devise his Land in Mortmain by the Custom of London 't is enough to say in Pleading existen ' a Citizen and Freeman without setting forth when and where If a Man be Indicted for not coming to Church 't is enough to say existen ' of the Age of 16 years he did not come to Church This is an Offence punishable at Common Law 't is malum in se But admitting 't was an Offence created by the Statute there being no Negative words to prohibit this Court hath a Iurisdiction to punish this Offence if the Star Chamber had not been taken away for the Party had his election to proceed in this Court upon the prohibitory Clause and the Iustices of Assise must be intended the Iustices of Oyer and Terminer Moor 564. Whereupon the Defendant was Fined 500 l. and bound to his good Behaviour for a Year Brown versus Waite Entailed Lands forfeited for Treason Jones 57. 1 Ventr 299. UPon a Special Verdict in Ejectment The Case was viz. Sir John Danvers the Father of the Lessor of the Plaintiff was in Anno Domini 1646. Tenant in Tail of the Lands now in Question and was afterwards instrumental in bringing the late King Charles to death and so was guilty of High Treason and dyed Afterwards the Act of Pains and Penalties made 13 Car. 2. cap. 15. Enacts That all the Lands Tenements and Hereditaments which Sir John Danvers had the 25th day of March in the year 1646. or at any time since shall be forfeited to the King And whether these entailed Lands shall be forfeited to the King by force of this Act was the Question Wallop who argued for the Plaintiff said that the entailed Lands were not forfeited his Reasons were 1. These Lands entailed are not expressly named in that Act. 2. Tenant in Tail hath but an Estate for Life in his Lands and therefore by these words All his Lands those which are entailed cannot be intended for if he grant totum statum suum only an Estate for Life passeth 3. These Lands are not forfeited by the Statute of 26 H. 8. cap. 13. which gives the forfeiture of entailed Lands in case of Treason hecause Sir John Danvers was not convicted of it by Process Presentment Confession Verdict or Outlawry which that Statute doth require for he dyed before any such Conviction Sir Francis Winnington the Kings Solicitor argued contra that entailed Lands are forfeited by the Act of Pains and Penalties and in speaking to this matter he considered 1. The words of that Act. 2. How Estates Tail were created and how forfeitable for Treason 1. This Act recites the Act of general Pardon which did not intend to discharge the Lands of Sir John Danvers and others from a Forfeiture 2. It recites that he was Guilty of High Treason 3. Then comes the enacting Clause Viz. That all the Lands Tenements Rights Interests Offices Annuities and all other Hereditaments Leases Chattels and other things of what nature soever of him the said Sir John Danvers and others which they had on the 25th of March 1646. or at any time since shall be forfeited to the King his Heirs and Successors 2. As to the creation of Intails there were no such Estates at the Common Law they were all Fee-simple Conditional and post prolem suscitatam the Condition was performed for three purposes Viz. To Alien Co. Lit. 19. a. 2 Inst 334. To Forfeit Or to charge with a Rent and thus the Law continued till 13 E. 1. and there having been frequent Warrs between King John and the Barons the great Men then obtained the Statute De donis to preserve their Estates lest the like occasion should happen again in which 't is only mentioned that the Tenant in Tail should not have power to alien but it was well known that if he could not alien he could not forfeit for before that Statute as he might alien post prolem suscitatam so the Iudges always construed that he might forfeit 5 Edw. 3.14 for forfeiture and alienation did always go hand in hand 1 Co. 175. Mildmay's Case And from the making of that Statute it always continued a setled and received Opinion That Tenant in Tail could not alien until by the 12th of Ed. 4. a Recovery came in by which the Estate Tail may be docked and which is now become a Common Assurance Then by the Statute of 4 H. 7. cap. 24. Tenant in Tail might bar his Issue by Fine and Proclamation and all this while it was not thought that such Lands could be forfeited for Treason which Opinion continued during all the Reign of H. 7. for though by his Marriage the Houses of York and Lancaster were united yet the Great Men in those days thought there might be some doubt about the Succession after the death of H. 7. if he should dye without Issue and thereby those differences might be again revived and therefore no endeavours were used to make any alteration in the Law till after the death of H. 7. And after his Son H. 8. had Issue those doubts were removed and being never likely to arise again then the Act of 26 H. 8. was made which gives a Forfeiture of entailed Lands in cases of Treason The inference from this will be that all the Cases put before the 26th year of H. 8. and so before entailed Lands were made forfeitable for Treason and where by the general Words
Profit it was answered That the Act took care that Men should not stop up their Chimnies when once made and that this Duty was paid for many Chimnies which were never used and what Profit can a Man have of a Chimny he never useth If there had been an Act that so much should be paid for every Window 't is all one whether it had been for profit or pleasure or whether the Window had been used or not and there is as much reason that a Man should pay for Houses never Inhabited as for such as have been Inhabited and are afterwards without Tenants This Act ought therefore to receive a favourable Construction the Preamble whereof mentions that it was for the encreasing of the Kings Revenue which is pro bono publico and which is for the Peace and Prosperity of the Nation and the protection of every single person therein and though a particular Inconvenience may follow the Party ought to submit When a Man builds a House he proposes a Profit and 't is not fit the Kings Duty should be contingent and depend till he has provided himself of a Tenant Object As to the other Objection that was much relied on viz. where the Act speaks of an Accompt to be given it mentions both Owner and Occupier but where it directs the Payment of the Duty the Occupier only is named by which it was inferred that he alone was chargeable Answ In 16 Car. 2. cap. 3. Owner Proprietor and Occupier are used promiscuously wherein it is provided that they shall not be charged unless within two years after the Duty accrued now if the Owner was not chargeable why is he mentioned there As to the second Point they conceived that the Duty being payeable to the King he had a remedy by distress before the Accompt was certified into the Exchequer for the Return was to inform the King what advantage he maketh of his Revenue and no Process issued upon it besides the Act vests the Duty in him from Lady-day 1662. And by reason of that he may distrain The King hath no benefit by returning of the Account that being only intended to prevent his being cheated so that 't is not to entitle but to inform him 't is only to return a just and true account not but that it may be levied and the King entitled before and 't is no inconvenience to the Subject if there be no such Account returned for if the Officer distrain for more Hearths than in truth there are the Subject has a proper remedy against him The King suffers when Returns are not made of such Duties as he ought to have for the support of his Dignity and because he is lyable to be defrauded in the managing of his Duty is it reasonable that he should lose all As to what was said of the Kings taking by matter of Record 't is true if he divest an Inheritance as in case of Attainder it must be by Record but here the very Duty is given to him by the Act it self which makes it a different Case If the King should be seised in Fee of a great Wast which happens to be improved by his Tenants and thereby Tythes become due it may be as well said that he shall have no Tythes without Record as to say he shall have no Hearth-Mony for Houses newly erected whereby his Revenue is increased For which Reasons Iudgment was prayed for the Defendant and upon the second Argument Iudgment was given accordingly for him Curia That empty Houses are subject and lyable to this Duty Astry versus Ballard IN an Action of Trover and Conversion for the taking of Coals upon Not-Guilty pleaded Grants must be taken according to common intendment Jones 71. the Iury found a special Verdict The Case was thus Viz. That one J. R. was seised in Fee of the Manor of Westerly and being so seised did demise all the Mesuages Lands Tenements and Hereditaments that he had in the said Manor for a Term of years to N. R. in which demise there was a recital of a Grant of the said Mannor Mesuages Lands Tenements Commons and Mines but in the Lease it self to R. the Word Mines was left out Afterwards the Reversion was sold to the Plaintiff Astry and his Heirs by Deed enrolled and at the time of this demise there were certain Mines of Coals open and others which were not then open and the Coals for which this Action of Trover was brought were digged by the Lessee in those Mines which were not open at the time of the Lease and whether he had power so to do was the Question It was said That when a Man is seised of Lands wherein there are Mines open and others not open and a Lease is made of these Lands in which the Mines are mentioned Antea 'T is no new Doctrine to say that the close Mines shall not pass Mens Grants must be taken according to usual and common intendment and when Words may be satisfied they shall not be strained farther than they are generally used for no violent Construction shall be made to prejudice a Mans Inheritance contrary to the plain meaning of the Words A Mine is not properly so called 'till it is opened 't is but a Vein of Coals before and this was the Opinion of my Lord Coke in point in his first Inst 54. b. Where he tells us 5 Co. 12. Sanders Case Roll. Abr. 2 part 816. that if a Man demises Lands and Mines some being opened and others not the Lessee may use the Mines opened but hath no power to dig the unopened Mines and of this Opinion was the whole Court and Iustice Twisden said That he knew no reason why my Lord Coke's single Opinion should not be as good an Authority as Fitzherbert in his Nat. Br. or the Doctor and Student Ipsley versus Turk IN a Writ of Error upon a Iudgment in an Inferiour Court What is admitted in pleading shall not be assigned for Error Jones 81. the Error assigned was That the Mayor who was Iudge of the Court did not receive the Sacrament at any Parish Church nor file any Certificate so that he was not Mayor and Iudgment being given against the Defendant before him it was therefore Coram non Judice like the Case of Hatch and Nichols Roll. Abr. 1 part tit Error 761. Where upon a Writ of Error brought upon a Iudgment in an Inferiour Court the Error assigned was that the Stile of the Court was Curia tent̄ coram J. S. Seneschallo who was not Steward and that was held to be an Error in fact But on the other side it was insisted that this was not Error because the Acts of the Mayor should not be void as to Strangers The Statute of 25 Car. 2. cap. 2. for preventing of dangers which may happen from Popish Recusants disables the Party who is not qualified according to the Act to hold an Office and if he execute the same afterwards
Tenant to the Praecipe the Statute shall be so construed that the intent of the Parties shall stand 5. The Lands in the Parishes pass 1 Anders 83. because the Deed and Common Recovery make but one Conveyance and Assurance in the Law and therefore as a Construction is not to be made upon part but upon the whole Deed so not upon the Deed or Recovery alone but upon both together 2 Co. 75. Lord Cromwel's Case 6. Antea 'T is the Agreement of the Parties which governs Fines and Recoveries and Lands shall pass by such Names as are agreed between them though such Names are not proper and therefore a Fine of a lieu conus is good though neither Vill or Parish is named therein Poph. 22. 1 Cro. 270 276 693. 2 Cro. 574. So if a Fine be levied of a Common of Pasture in Dale Cro. Car. 308. Winch 122. Sid. 190 191. Antea 't is good though Dale be neither Vill or Hamlet or lieu conus out of a Vill 2 Roll. Abr. f. 19. So in Sir George Symonds his Case Lands as parcel of a Mannor were adjudged to pass though in truth they were used with the Manor but two years and the reason of all these Cases is because it was the Agreement of the Parties that they should pass Object If it be objected That all these Authorities are in Cases of Fines but the Case at Bar is in a Common Recovery which makes a great difference Answ The proceedings in both are amicable and not adversary and therefore as to this purpose there is no difference between them and for an Authority in the point the Case of Lever and Hosier was cited which was adjudged in this Court Trin. 27 Car. 2 Where the Question was Antea whether upon a Common Recovery suffered of Lands in the Town of Sale or the Liberty thereof Lands lying in Dale being a distinct Vill in the Parish of Sale should pass or not and after divers Arguments it was allowed to be well enough being in the Case of a Common Recovery And so was the Case Pasch 16 Car. 2. in B. R. In a special Verdict the Case was That Sir Thomas Thinn being seised of the Mannor of Buckland in Tail and of twenty Acres of Land called and known by a particular name which twenty Acres of Land were in Ed. the 6th's time reputed parcel of the said Mannor and always used with it Sid. 190. sold the said Mannor and all the Lands reputed parcel thereof with the Appurtenances of which he did suffer a Common Recovery and it was adjudged upon great consideration that though the Recovery did not mention the twenty Acres particularly yet it did dock the Entail thereof because the Indenture which leads the Vses of the Recovery was of the Lands reputed parcel thereof or enjoyed with it and that the shortness in the Recovery was well supplied by the Deed in which Case the Court were guided by the resolution in Sir George Symond's Case Vide 6 Co. Sir Moyle Finch's Case The Authorities against this Opinion are two Antea Lever and Hosieâ— 1. That of Stock versus Fox Cro. Jac. 120. There were two Vills Walton and Street in the Parish of Street and a Fine was levied of Lands in Street it was adjudged that the Lands in Walton did not pass by this Fine But there is another Report of this very Case by my Lord Chief Iustice Roll in his Abr. tit Grants 54. where 't is said if there be in the County of Somerset the Vill of Street and the Vill of Waltham within the Parish of Street and a Man being seised of Lands in the Vill of Street and of other Lands in the Vill of Waltham all within the Parish of Street and he Bargains and Sells all his Lands in Street and having Covenanted to levie a Fine doth accordingly levie it of Lands in Street and doth not mention either in the Indenture or in the Fine any Lands in Waltham the Lands lying there shall not pass from which Report there may be a fair Inference made That it was the Lord Rolls his Opinion that if Waltham had been named in the Indenture though not in the Fine the Lands would have passed and in this Case the Parishes are named in the Indenture of Bargain and Sale but besides in that Case the Party had Lands both in Street and Waltham and so the Conveyances were not in vain as they must be here if the Lands in the Parishes do not pass Antea 2. The other Case is that of Baker and Johnson in Hutton 106. But this Case is quite different from that because there was neither Vill or Parish named in the Indenture but here the Indenture was right for the Lands are mentioned therein to lie in the Parishes c. And for these Reasons Iudgment was prayed for the Defendant This Case was afterwards argued in Michaelmas-Term following by Serjeant Pemberton and Maynard for the Plaintiff who said Ex parte Quer. That the Government of this Nation was Ecclesiastical and Civil the Ecclesiastical runs by Parishes and the Civil by Vills That a Parish is constituted by the Ecclesiastical Power and may be altered by the King and Ordinary of the place that the Parson was superintendent of the Parish and the Constable of the Vill which was also constituted by the Civil Magistrate and from hence it is that in real Actions which are adversary Lands ought not to be demanded as lying in a Parish but within a Vill that being the place known to the Civil Iurisdiction and if a Trespass which is local be laid at Dale generally there being both the Parish and Vill of Dale the proof of the Trespass done in the Parish is not good for it must be at the Vil. They agreed that in conveying of Lands a Fine or Common Recovery of Lands in a Parish or Lieu conus was good 2 Cro. 574. But if there be both a Vill and a Parish of the same Name and severally bounded if the Vill be only named without the Parish nothing doth pass but what is in the Vill because where a place is alledged in Pleading it must be of a Vill Moor 710. 1 Inst 125. b. 2 Cro. 121. And this was the ancient way of demanding Lands in a Praecipe quod reddat because of the Notoriety of Vills from whence Visnes do arise and because the Vill is more particular and of more certainty than a Parish and therefore 't is requisite that the Demandant should be very particular in his Demand that the Tenant may know how to make his defence and the Sheriff of what to deliver possession Besides a Vill is more ancient than a Parish and Lands have been demanded within them time out of mind so that the Demand when 't is doubtful of what 't is made shall be supposed of that which is most ancient and such Construction is most conformable to the like Cases
year before the Sale After Verdict for the Plaintiff it was moved in arrest of Iudgment by Serjeant Barrell because the Information had set forth the right of these Lands purchased to be in J. S. and that the Son of J. N. had conveyed them by general words 2 Anders 57. as descending from his Father which Title of the Son the Defendant bought whereas if in truth the Title was in J. S. then nothing descended from the Father to the Son and so the Defendant bought nothing Sed non allocatur for if such construction should be allowed there could be no buying of a pretended Title within the Statute unless it was a good Title but when 't is said as here that the Defendant entred and claimed colore of that Grant or Conveyance which was void yet 't is within the Statute so the Plaintiff had his Iudgment Wine versus Rider al. TRespass against five Quare clausum fregerunt Traverse immaterial and took Fish out of the Plaintiffs Several and Free-Fishery Four of them pleaded Not Guilty and the fifth justified for that one of the other Defendants is seised in Fee of a Close adjoyning to the Plaintiffs Close and that he and all those c. have had the sole and separate Fishing in the River which runs by the said Closes with liberty to enter into the Plaintiffs Close to beat the Water for the better carrying on of the Fishing and that he as Servant to the other Defendant and by his Command did enter and so justified the taking absque hoc that he is Guilty aliter vel alio modo The Plaintiff replies That he did enter de injuria sua propria absque hoc That the Defendants Master hath the Sole Fishing The Defendant demurs Ex parte Def. and Newdigate Serjeant argued for him That the Iustification is good for when he had made a local justification 2 Cro. 45 372. he must traverse both before and after as he has done in this Case 2. The Plaintiffs Replication is ill for he ought not to have waved the Defendants Traverse and force him to accept of another from him because the first is material to the Plaintiffs Title and he is bound up to it Hob. 104. 3. There was no occasion of a Traverse in the Replication for where a Servant is Defendant de injuria sua propria is good with a Traverse of the Command Ex parte Quer. But on the Plaintiffs side Serjeant Baldwin held the Defendants Traverse to be immaterial for having answered the Declaration fully in alledging a Right to the sole fishing and an Entry into the Plaintiffs Close 2 Cro. 372. 't is insignificant afterwards to traverse that he is guilty aliter vel alio modo Then the matter of the Plea is not good because the Defendant justifies by a Command from one of the other Defendants who have all pleaded Not-guilty and they must be guilty if they did command him for a Command will make a Man a Trespasser Curia The Court were all of Opinion that Iudgment should be given for the Plaintiff For as to the last thing mentioned which was the Matter of the Plea they held it to be well enough for the * Mires and Solebay Post Servant shall not be ousted of the advantage which the Law gives him by pleading his Masters Command Then as to the Replication 't is good and the Plea is naught with the Traverse for where the Iustification goes to a time and place not alledged by the Plaintiff there must be a Traverse of both In this Case the Defendant ought to have traversed the Plaintiffs free fishing as alledged by him in his Declaration which he having omitted the Plea for that reason also is ill and so Iudgment was given for the Plaintiff DE Termino Paschae Anno 28 Car. II. in Communi Banco Lee versus Brown IN a Special Verdict in Ejectment The Case was this Where reputed Lands shall pass under general words viz. There were Lands which re vera were not parcel of a Mannor and yet were reputed as parcel A Grant is made of the Mannor and of all Lands reputed parcel thereof and whether by this Grant and by these general Words those Lands would pass which were not parcel of the Mannor was the Question This Term the Lord Chief Iustice delivered the Opinion of the Court That those Lands would pass Postea Cro. Car. 308. and they grounded their Opinions upon two Authorities in Co. Entr. fol. 330 384. The King versus Imber Wilkins If the Iury had found that the Lands in question had beén reputed parcel of the Mannor it would not have passed had they found no more because the Reputation so found might be intended a Reputation for a small time so reputed by a few or by such as were ignorant and unskilful But in this Case 't is found that not only the Lands were reputed parcel but the reason why they were reputed parcel for the Iury have found that they were formerly parcel of the Mannor and after the division they were again united in the possession of him who had the Mannor which being also Copyhold have since béen demised by Copy of Court Roll togethet with the Mannor and these were all great marks of Reputation and therefore Iudgment was given that the Lands did well pass 2 Roll. Abr. 186. Dyer 350. Wakeman versus Blackwel Common Recoveries how to be pleaded QUare Impedit The Case was The Plaintiff entituled himself to an Advowson by a Recovery suffered by Tenant in Tail in pleading of which Recovery he alledges two to be Tenants to the Praecipe but doth not shew how they came to be so or what Conveyance was made to them by which it may appear that they were Tenants to the Praecipe and after search of Presidents as to the form of pleading of Common Recoveries the Court inclined that it was not well pleaded but delivered no Iudgment Searl versus Bunion Justification where good IN Trespass for taking of his Cattel The Defendant pleads that he was possessed of Blackacre pro termino diversorum annorum adtunc adhuc ventur̄ and being so possessed the Plaintiffs Cattle were doing damage and he distrained them Damage fesant ibidem and so justifies the taking c. The Plaintiff demurrs and assigns specially for cause that the Defendant did not set forth particularly the commencement of the Term of years but only that he was possessed of an Acre for a Term of years to come and regularly where a Man makes a Title to a particular Estate in pleading he must shew the particular time of the Commencement of his Title that the Plaintiff may replie to it Curia The Chief Iustice and the whole Court held that the Plea was good upon this difference where the Plaintiff brings an Action for the Land or doing of a Trespass upon the Land he is supposed to be in possession
of Record the Proceedings may be denied and tryed by Iury. But the Court inclined that it was pleaded well enough and that it was the safest way to prevent mistakes but if the Plaintiff had replied de injuria sua propria absque tali causa that had traversed all the Proceedings Quaere whether such a Replication had been good because the Plaintiff must answer particularly that Authority which the Defendant pretended to have from the Court but no Iudgment was given Sherrard versus Smith TRespass Quare clausum fregit and for taking away his Goods the Defendant justifies the taking by the command of the Lord of the Mannor of which the Plaintiff held by Fealty and Rent and for non-payment thereof the Goods were taken nomine Districtionis The Plaintiff replies that the locus in quo est extra Hors de son Fee when to be pleaded absque hoc quod est infra feodum The Defendant demurrs specially because the Plaintiff pleading hors de son fee should have taken the Tenancy upon him 9 Co. Bucknal's Case 22 H. 6. 2 3. Keilway 73. 14 Ass pl. 13. 1 Inst 1. b. where this is given as a Rule by my Lord Cook Serjeant Pemberton on the other side agreed Ex parte Quer. 13 Assize 28. 28 Assise 41. that in all cases of Assize hors de son fee is no Plea without taking the Tenancy upon him 2 Ass placito 1. And in 5 E. 4. 2. 't is said that in Replevin the Party cannot plead this Plea because he may disclaim but Brook placito 15. tit hors de son fee saith this is not Law and so is 2 H. 6. 1. and many Cases afterwards were against that Book of Ed. 4. and that a Man might plead hors de son fee as if there be a Lord and Tenant holding by Fealty and Rent and he makes a Lease for years and the Lord distrains the Cattel of the Lessee though the Tenant hath paid the Rent and done Fealty there if the Lessee alledge that his Lessor was seised of the Tenancy in his demesn as of fee and held it of the Lord by Services c. of which Services the Lord was seised by the hands of his Lessor as by his true Tenant who hath leased the Lands to the Plaintiff and the Lord to charge him hath unjustly avowed upon him who hath nothing in the Tenancy 't is well enough 9 Co. Case of Avowries and the reason given in 5 Edw. 4. about disclaimer will not hold now for that course is quite altered and is taken away by the Statute of the 21 H. 8. cap. 19. which Enacts That Avowries shall be made by the Lord upon the Land without naming his Tenant But in case of Trespass there was never any such thing objected as here for what Tenancy can the Plaintiff take upon him in this case He cannot say tenen ' liberi tenementi for this is a bare Action of Trespass in which though the pleading is not so formal yet it will do no hourt for if it had been only extra feodum without the Traverse it had been good enough and of that Opinion was the Court in Hillary-Term following when Iudgment was given for the Plaintiff absente Scroggs And the Chief Iustice said That the Rule laid down by my Lord Coke in 1 Inst 1. b. that there is no pleading hors de son fee without taking the tenancy upon him is to be intended in cases of Assize and so are all the Cases he there cites for proof of that Opinion and therefore so he is to be understood but this is an Action of Trespas brought upon the Possession and not upon the Title In the Case of Avowry a Stranger may plead generally hors de son fee and so may Tenant for years and this being in the Case of a Trespass is much stronger and if the Plaintiff destroys the Defendants justification 't is well enough Sir William Hickman versus Thorne alios Prescription against another Prescription not good without a Traverse IN a Replevin The Defendant justifies the taking for that the locus in quo was his Freehold and that he took the Cattel there damage fesant The Plaintiff in bar to the Avowry replies that the locus in quo c. is parcel of such a Common Field and prescribes to have right of Common there as appendant to two Acres which he hath in another place The Defendant rejoyns that there is a Custom that every Free-holder who hath Lands lying together in the said Common Field may enclose against him who hath right of Common there and that he had Lands there and did enclose The Plaintiff demurs and Serjeant Newdigate took Exceptions to the Rejoynder Ex parte Quer. 1. For that he did not averr that the Lands which he enclosed did lye together and therefore had not brought his case within the Custom alledged Sed non allocatur because he could not enclose if the Lands had not laid together 2. He gives no answer to the Plaintiffs right of Common but by argument which he should have confessed with a bene verum est and then should have avoided it by alledging the Custom of Enclosure like the Case of * 2 Leon. 209. Russel and Broker where in Trespass for cutting Oaks the Defendant pleads that he was seised of a Messuage in Fee and prescribes to have rationabile estoverium ad libitum capiend ' in boscis the Plaintiff replies that the locus in quo was within the Forest and that the Defendant and all those c. habere consueverunt rationabile estoverium c. per liberationem Forestarii and upon a Demurrer the Replication was held naught because the Plaintiff ought to have pleaded the Law of the Forest viz. Lex Forestae talis est or to have traversed the Defendants Prescription and not to have set forth another Prescription in his Replication without a Traverse 3. The Defendant should have pleaded the Custom and then have traversed the Prescription of the Right of Common for he cannot plead a Custom against a Custom 9 Co. 58. Aldred's Case where one prescribes to have a Light the other cannot prescribe to stop it up Serjeant Pemberton contra Ex parte Def. He said that which he took to be the only Question in the Case was admitted viz. That such a Custom as this to enclose was good and so it has béen adjudged in Sir Miles Corbet's Case 7 Co. But as to the Objections which have been made the Defendant admits the Prescription for Right of Common but saith he may enclose against the Commoners by reason of a Custom which is a Barr to his very Right of Common and therefore need not confess it with a bene verum est neither could he traverse the Prescription because he hath admitted it 'T is true where one prescribes to have Lights in his House and another prescribes to stop them up this is not good because
of Lands Tenements and Hereditaments 't was adjudged entailed Lands did not pass do not concern this Case but now since they are made forfeitable by that Statute such general words are sufficient to serve the turn By the Statute of 16 R. 2. cap. 5. entailed Lands are not forfeited in a Praemunire but during the Life of Tenant in Tail because they were not then to be forfeited for Treason 2 Inst 334. 1 Inst 3. Co. Lit. 130. If then it appears that the Crime of which Sir John Danvers was guilty was Treason and if entailed Lands are forfeited for Treason then when the Act saith That he shall forfeit all his Lands by those general Words his entailed Lands shall be forfeited And though by the Common Law there can be no Attainder in this Case the Party being dead yet by Act of Parliament that may be done and the words in this Act amount to an Attainder The intent of it was to forfeit Estates Tail which may be collected from the general Words for if a Fee-simple is forfeited though not named why not an Estate Tail especially since the word Hereditaments is very comprehensive and may take in both those Estates Spelman's Glossary 227. 2 Roll. Rep. 503. In the very Act of 26 H. 8. cap. 13. Estates Tail are not named for the Words are Every Offender convict of Treason c. shall forfeit all such Lands Tenements and Hereditaments which he shall have of any Estate of Inheritance in use possession or by any Right Title or Means c. and yet a Construction hath been made thereupon in favour of the Crown so a Dignity of an Earldom intailed is forfeitable by this Statute by the Word Hereditament 7 Co. 34. Afterwards in Hillary Term Rainsford Chief Iustice delivered the Opinion of the Court Judgment That upon Construction of the Act of Pains and Penalties this Estate Tail was forfeited to the King He agreed the Series and progress of Estates Tail to have been as argued by the Solicitor and that the Question now was whether by the Act of Pains c. Estates Tail can be forfeited unless there are express Words to take away the force of the Statute de donis conditionalibus Preface to 3 Co. for by that Statute there was a settled perpetuity Tenant in Tail could neither forfeit or alien his Estate no not in Case of Treason and Forfeiture is a kind of Alienation but afterwards by the Resolution in Ed. 4. an Alienation by a Common Recovery was construed to be out of the said Statute and by the Statute of Fines 4 H. 7. which is expounded by a subsequent Statute of 32 H. 8. cap. 36. Tenant in Tail notwithstanding his former restraint had power to alien the Estate Tail and barr his Issue but all this while his Estate was not to be forfeited for Treason till the Statute of 33 H. 8. cap. 20. which gives Uses Rights Entries Conditions as well as Possessions Reversions Remainders and all other things of a person attainted of Treason by the Common or Statute Law of the Realm to the King as if such Attainder had been by Act of Parliament Then by the Statute of 5 6 Ed. cap. 11. 't is Enacted That an Offender being guilty of High Treason and lawfully convict shall forfeit to the King all such Lands Tenements and Hereditaments which he shall have of any Estate of Inheritance in his own Right in Use or Possession by which Statutes that de donis conditionalibus was taken off in Cases of Treason as it had been before by the resolution in 12 E. 4. and by the Statute of Fines as to the Alienation of an Estate Tail by Fine and Recovery If therefore this Act of Pains c. will admit of such a construction as to make Estates Tail forfeit here is a Crime great enough to deserve such a great punishment a Crime for which the Parliament hath ordered an Anniversary to be kept for ever with Fasting and Humiliation to implore that the Guilt of that innocent Blood then shed may not be required of our Posterity this they esteemed as another kind of Original Sin which unless thus expiated might extend not only ad Natos sed qui nascantur ab illis And that this Act will admit of such a Construction these Reasons were given 1. From the general comprehensive Words mentioning those things which are to be forfeited viz. Messuages Lands Tenements Reversions and Interests which last Word signifies the Estate in the Land as well as the Land it self or otherwise the Word must be construed to have no effect 2. Estates Tail are not now protected by the Clause in the Statute de donis * Inst 334. Non habet potestatem alienandi but are subject to the forfeiture by the Act of H. 8. which though it extends to Attainders only yet 't is a good Rule for the Iudges to make a Construction of an Act of Parliament by especially in such a Case as this wherein 't is plain that the Law did look upon these Offenders if not attainted yet in pari gradu with such persons and therefore may be a good Warrant to make the like Construction as in Cases of Attainder 3. Because the Offenders are dead for had they béen living there might have been better reason to have construed this Act not to extend to Estates Tail because then something might be forfeited viz. an Estate for Life and therefore the Act would signifie very little if such Construction could not be made of it to reach Estates Tail of such persons who were dead at the time of the making the Law especially since 't is well known that when Men engage in such Crimes they give what Protection they can to their Estates and place them as far as they can out of danger 4. It appears by the Act that the Law-makers did not intend that the Children of such Offenders should have any benefit of their Estates because in the Proviso there is a saving of all Estates of Purchasers for Mony bona fide paid and therein also a particular Exception of the Wife and Children and Heirs of the Offenders and if the Act would not protect the Estate of the Children though they should be Purchasers for a valuable consideration it will never protect their Estate under a voluntary Conveyance made by the Ancestor especially in this Case because the Entail carries a suspicion with it that it was designed with a prospect to commit this Crime for Sir John Danvers was Tenant in Tail before and in the year 1647. levies a Fine to barr that Entail and then limits a new Estate Tail to himself in which there is a Provision to make Leases for any number of years upon what Lives soever in Possession or Reversion with Rent or without it and this was but the year before the Crime committed 5. The Proviso in the Act for saving the Estates of Purchasers doth protect all Conveyances and
Assurances c. of Land not being the Lands of the late King Queen Prince c. and not being Land sold for any pretended Delinquency since the first of June 1641. and all Statutes and Judgments suffered by the Offenders from being impeached from which it appears that the Parliament lookt upon entailed Lands as forfeited for if Estates made to others upon a valuable consideration had need of a Proviso to save them from Forfeiture à fortiori the Estates out of which those are derived have need of such a saving and therefore must be forfeit by the Act for which Reasons these Lands are forfeited As to the great Objection which hath been made and insisted on the other side and which is Trudgeons Case 22 Eliz. 1 Inst 130. Where Tenant in Tail was attainted in a Praemunire and it was adjudged that he should forfeit his Land but during his Life for though the Statue of 16 R. 2. cap. cap. 5. Enacts That in such Case their Lands Tenements Goods and Chattels shall be forfeited to the King yet that must be understood of such an Estate as he may lawfully forfeit and that is during his own life and therefore being general Words they do not take away the force of the Statute de donis so that his Lands in Fee-simple for life c. shall be forfeited but the Land entailed shall not during his life But the Answer is plain For in the Reign of R. 2. when the Statute of Praemunire was made Estates Tail were under a Perpetuity by the said Statute de donis which Statute is now much weakened in the Point of Alienation and the Law is quite altered since that time and 't is apparent by multitude of Presidents that such strict Constructions have not been made since that time to preserve Estates Tail from Forfeitures without special and particular Words 4 Co. 164. and therefore in the Case of Adams and Lambert which is a Case in Point the Iudges there construed Estates Tail to be forfeit for want of special Words in the Statute of 1 E. 6. cap. 14. to save it and that was only a Law made for suppressing of superstitious Vses upon a politick consideration but this is a much greater Offence intended to be punished by this Act in which there are demonstrations both from the Words and intent of the Law-makers to make this Estate forfeited to the Crown than in that Case so much relied on And Iudgment was given accordingly Wyld died before Iudgment was given but Iustice Twisden said he was of that Opinion and Jones Iustice concurred Basset versus Salter After an Escape the Plaintiff may have a Ca. Sa. or Sci. Fa. against the Sheriff IN an Action for an Escape the Question was whether the Plaintiff may take out a Ca. Sa. or have a Fi. Fa. against the Defendant after the Sheriff or Gaoler voluntarily suffer him to escape but the Court would not suffer it to be argued because it had been lately settled that it was at the Election of the Plaintiff to do either and upon a Writ of Error brought in the Exchequer-Chamber the Iudges there were of the same Opinion But in the Lord Chief Iustice Vaughan's time the Court of Common Pleas were divided but 't is since settled 1 Roll. Abridg. 901 902. If there be an Escape by the Plaintiffs consent though he did not intend it the Law is hard that the Debt should be thereby discharged as where one was in execution in the Kings Bench and some Proposals were made to the Plaintiff in behalf of the Prisoner who seeing there was some likelyhood of an Accomodation consented to a Meeting in London and desired the Prisoner might be there who came accordingly and this was held to be an Escape with the * If it had been by the consent of the Sheriff he could never take him again but the Plaintiff might Sid. 330. consent of the Plaintiff and he could never after be in Execution at his Suit for the same Matter Peck versus Hill In Communi Banco Bond good given in discharge of another Mod. Rep. 221. DEBT upon a Bond brought against the Defendant as Administrator who pleads that he gave another Bond in his own Name in discharge of the first Bond and upon Issue joined it was found for the Defendant and it was moved that Iudgment might not be entred hereupon because it was a bad Plea But North Chief Iustice and Wyndham and Scroggs Iustices were of Opinion that it was a good Plea because there was other Security given than what the Plaintiff had before for upon the first Bond he was only lyable de bonis Intestatoris but now he might be charged in his own Right Co. Lit. 122. b. which may be well said to be in full satisfaction of the first Obligation for where the Condition is for payment of Mony to the Party himself there if he accept any collateral thing in satisfaction 't is good If a Security be given by a Stranger it may discharge a former Bond and this in effect is given by such And 't is not like the Case in Hobert where a Bond was given by the same Party upon that very day a former Bond was payable and adjudged not a good discharge for the Obligee was in no better condition than he was before Iustice Atkins doubted but inclined that one Bond cannot be discharged by giving another though the Discharge be applied to the Condition of the Bond and for this he cited Cro. Car. 85. Cro. Eliz. 716 727. which was a Case adjudged so in Point and therefore this Plea upon Demurrer should have been over-ruled yet since Issue was taken upon it and a Verdict for the Defendant the Plea is helped by the Statute of Jeofails 32 H. 8. here being a direct Affirmative and Negative But as to that the Chief Iustice and Scroggs Iustice replied that an immaterial Issue no ways arising from the Matter is not helped as an Action of Debt upon a Bond laid to be made in London and the Defendant saith that it was made in Middlesex and this is tried 't is not aided by the Statute but there must be a Repleader But because it was sworn that the Obligor who was the intestate was alive four years after the time that the second Bond was given and for that reason it could not be given upon the accompt of the Defendants being liable as Administrator but must be intended a Bond to secure a Debt of his own therefore a new Trial was granted Cook and others versus Herle Covenant will lie in the personalty tho' the Grant be executed by the Statute of Uses which makes a Distress the proper remedy Mod. Rep. 223. IN Covenant the Case was this Charles Cook made a Iointure to Mary his Wife for life and died without Issue the Land descended to Thomas Cook his Brother and Heir who grants an Annuity or Rent Charge of 200 l. per
there hath put down these feigned Attachers for Examples sake from whence the Sheriff in this Case might inferr that they need not be real persons as in truth they ought both upon the Summons Pone and Distress and he cited a Case lately adjudged where the like Return was made upon the Grand Cape and the Iudgment set aside and of this Opinion was the whole Court and said Where the Process is so fatal the Party ought to be duly served and that the Sheriff ought to have gone to the Church and to have seised the Profits and if there be nothing to return a Nihil and though the Iudgment was given before the Term or long since yet when 't is Irregular 't is to be set aside and so it was now and being moved again the Court continued of their former Opinion The like Case was moved in Michaelmas-Term following between Fleming and Lee where the Patron Defendant was thus summoned and never appeared and the Incumbent did cast an Essoign and a Case was cited betwéen Vivian and the Bishop of London Mich. 23 Car. 2. in C. B. where the like Iudgment was set aside But on the other side it was objected that leaving due notice upon the Summons was as much as was required for the other Writs are only to give the Defendant time to plead and therefore 't is not necessary that notice should be given upon every one of the Writs for if once served 't is enough 11 H. 6. 3 4. 36 H. 6. 23. 8 H. 6. 8. Long 5 to E. 4. 26. 29 E. 3. 42 43. Doctor and Stud. 125 126. 21 H. 6. 56. But the Court were of Opinion that the Defendant having not appeared nor cast an Essoign and Iudgment final being given Curia it was reason that all the Process should be served really of which there had been no occasion if he had either appeared or essoined and therefore the Process not being duly served Iudgment was set aside Rast Ent. 217. And they held that the Essoign of the other Defendant was no wise binding to the Patron Defendant because they may sever in Pleading and so that Iudgment was likewise set aside DE Term. Sancti Mich. Anno 29 Car. II. in Communi Banco Sir John Otway versus Holdips Executor c. Bond to pay 40 l. when an Accompt shall be stated 't is a Covenant and not a Solvendum DEBT upon Bond brought by the Plaintiff against the Defendant as Executor wherein the Testator did acknowledge himself to be indebted to the Plaintiff in 40 l. which he thereby did covenant to pay when such a Bill of Costs should be stated by two Attornies indifferently to be chosen between them and sets forth in his Declaration that he named one Attorny and desired the now Defendant to name another which he refused and so intitles himself to this Action The Defendant pleads Non detinet to which the Plaintiff demurred But the Plea was not offered to be maintained because the Executor cannot plead Non detinet but where the Testator himself might plead Nil debet which in this Case he could not do But it was insisted that the Declaration is not good because the Mony was to be paid upon an accompt stated which not being done by the Plaintiffs own shewing 't is not yet due and this ought to be taken as penned viz. Solvendum and not an express Covenant But on the contrary it was held not to be a Solvendum but a Covenant to pay the Mony the Debt and the Duty being in the first place ascertained but if it be a Solvendum and repugnant to the Obligatory Clause 't is void 21 Ed. 4.36 As the Defendant would have it expounded it would be in his power totally to defeat the Bond either way for if he would never chuse an Attorny there could be never any thing due The whole Court were of Opinion that it was not a Solvendum but a Covenant which did not take away the Duty ascertained by the Obligation and if it should not be a Covenant but an entire Bond then it would be in the Power of the Obligor whether ever it shall be payable but be it either the one or the other the Plaintiff having named an Attorny ought to recover and Iudgment was accordingly given for him Dunning versus Lascomb DEBT on a Bond the Condition was to pay Mony when a Ship should go from A. to C. and from thence to Bristol and should arrive there or at any other Port of discharge in England the Ship going from A. to C. took in Provisions at Bristol but not to be discharged there but proceeded in her Voiage to Cales and was cast away And by the Opinion of the Court the Mony was not payable but if he had never intended to perform the Voyage it might have been otherwise 1 Roll. Abr. 142. 39 H. 6.10 Iudgment for the Defendant nisi Atkins versus Bayles AN Information was exhibited against the Defendant Outlary pleaded to an Information good being a Iustice of the Peace for refusing to grant his Warrant to suppress a Conventicle The Defendant pleads an Outlary in disability and the Plantiff demurred 1. 3 Inst 194. This Plea is not good because the King is interested qui tam c. and therefore where the Informer dies the Attorny General may proceed 2. The Statute gives power to any person to inform c. by which general Words the Disability of this person is removed But the Court held that there was no colour in either of these Objections 3. 'T is not pleaded sub pede sigilli sed non allocatur for it need not be so pleaded being in the same Court 4. 'T is not averred that the Plaintiff was the same person who was outlawed but it was answered that the praedictus makes that certain and that though the King be interessed yet the Informer only is Plaintiff and intituled to the benefit and that though he was disabled yet he might sue for the King Moor 541. Dyer 227. b. Cro. Eliz. 583. but not for himself and therefore Iudgment was given that the Plea was good Harwood Bincks versus Hilliard c. Notice where 't is agreed to be in writing must be so pleaded BY an Agreement between the Plaintiffs and the Testator of the Defendant a parcel of Lands was to be sold for 400 l. but if it did not arise to so much then they covenanted with each other to repay proportionable to the Abatement and the Defendant's Testator covenanted for himself and his Executors to pay his proportion to the Plaintiffs so as the Plaintiffs gave him notice in writing of the said Sale by the space of ten days but doth not say that such notice was to be given to his Executors or Administrators And now the Plaintiffs averred that they gave notice accordingly to the Defendant who was Executor and the breach assigned was that he hath not paid c. The