good and it shall be intended that the Parson is alwaies resident in his Parsonage as a Surrender or an Attournment shall be intended upon the Land and it is not requisite to name any place And it seemed to Harvey that the Arbitrement was good although that all the Parishioners had not submitted to it Because that these were bound for them 18 E. 4. 22. 1â—… 1. And Iudgement was afterwards in the next Term given for the Plaintiff Iohn Paston against William Manne IOhn Paston brought an Ejectione firm against Manne and a special verdict was given to this effect scilicet Edward Paston was seised of the Mannor of Bingham parcel whereof was the Land in question grantable by Copy And he by his Deed indented in consideration of a Mariage to be had between Tho. Paston his Son and the Daughter of I. S. covenanted with I.S. to stand seis'd of the Mannor to the use of his Son for life and after to Mary the wife for life the remainder to the first Son between them in tail with divers remainders over The Mariage was solemnised and they found moreover that there was a Custome that the Lord might have liberty of fould course for 100 Sheep throughout all the Copiholdland lying in the East and North field the Customary places and Lands in these Fields not being inclosed from the Feast of St. Michael to the Feast of the Annunciation if the grain was carried in by that time Or otherwise from the time of the carrying in to the Annunciation if it be not sowed with seed again and that those 15 acres in question be in the Corn-field And that Thomas Paston granted that Copihold to the Defendant in Fee and that in 14 Iacobi the Defendant enclosed the Land without Licence of the Lord and if Licence was obtained then he ought to have paid a Fine which the Lord would have assest And if any of the Tenents inclose without Licence they find that they have used to be punisht and pay those penalties which the Lord would assess And they also found that that incloser by the Copiholder was with a Ditch of six foot in breadth and 3 foot in depth and that the land which he digged out was but to make a Bank upon the Land upon which a hedge of quick thorn was set and that four gaps were left in the inclosure of nine feet in breadth And they found that the Defendant did not at any time compound for a Fine And then they find that the Copiholders which before this inclosed without Licence were amerced and commanded upon a pain before a certain day to throw up their inclosures And now for this inclosure Thomas enters for a forfeiture and dies his Wife makes a Lease of it and the Defendant ejects the Lessee Atthowe held that he had forfeited his Copihold for that inclosure is against the Custome of the Mannor which is found For the Custome is the life and soul of a Copihold as it is in the 4 Rep. 31. Brownes Case The breaking of that is a forfeiture and make the Copiholder have an Estate at will meerly whereas before he had an Estate not meerly at the will of the said Lord but secundum volunt domini And so by the inclosure the Lord cannot have his fould course and so the custome is broken 42 Ed. 3. 25. For not doing the services the Lord may enter and have the Emblements If a Copiholder makes a feoffment it is a disseisin for which there may be an Assise of novel disseisin de libero tenement of Lands whereof the profits or of the Rent issuing out of the Land there is a forfeiture And Littleton said that a rescous Replevin Enclosure and denying the Rent is a Disseisin And what is a Disseisin of a Freehold is a forfeiture of the Copihold Rescous by a Copiholder is a forfeiture for all the books say that a denial of a rent is a forfeiture And it is held that if a Copiholder brings a replevin it is a forfeiture and the Lord may enter presently But if he avow then perchance he hath dispensed with it And an inclosure is more strong than a denial 11 E. 3. Assise 88. cited in Taverners Case 4 Rep. The heir cannot have an Assise before entry but if the Defendant menaces him or stops up the way it is a Disseisin 14 Ass plac 19. 8 E. 2. As 374. A stopping up of the way is a disseisin but if he can go another way he can have nusance 29 Ass 49. But it will be objected that the Lord had another remedy for he might have an Action of the Case And for that not enter for a forfeiture But an Action of the Case does not restore him to the Freehold but give dammages only And if an Assise be brought it affirms the Disseisin and makes forfeiture and that agrees Taverners Case That where several Copiholds were granted by one Copy a rent denied of one forfeits that and not the others But admit it is a forfeiture if the leaving the Gaps dispence with it And it seem'd that not for he loses the profit of the Fould-course for 500 Sheep would tear their fleeces by such a narrow passage and the inclosure is an impediment to hinder their spreading in their feeding And so every one also may inclose and leave gaps and the Lord perhaps compell'd to put and remove the Shéep ten times in one day and so the Sheep worse at night than in the morning c. Secondly if the Lord had given Licence then he would have had a Fine but he would so be his own Carver And the Lord had no remedy for a Fine upon admittance after Surrender 4 Rep. 46. He had no remedy there by Action of debt nor by Action of the Case without promise to the Admittance c. Lord grants a Copihold Escheat he ought to improve his Fine before or he hath no remedy for he is not compelled to grant the Copihold again and therefore he shall have what Fine he will And it is not found also who may inclose paying his Fine A Lord admits a Copiholder for life with remainders the admittance of Tenent for life was the admittance of the remainder but he shall have his Antefine 4 Rep 23. And if they may inclose paying a Fine then the Lord had an Estate at the will of the Tenents Thirdly when it is found that the Lord amerced and commanded upon pain c. that is no mitigation or dispensation of the forfeiture For ruinous Houses pull'd down is a forfeiture without Custome to the contrary Because no waste lies against a Copiholder as against Lessee for years And yet the Lord in favour may amerce such a Copiholder if he will and that is no dispensaition but an affirmation of the forfeiture And so because the Lords were conscionable and would not take the forfeiture that does not prove that it is a Dispensation Fourthly the making of the gap and hedge of
for a Legacy and that upon the Statute of 23 H 8. cap. 9. And Henden said that a Prohibition might not be granted for two causes First The Statute is general That no person c. then there is a proviso That this Statute does not extend to any probate of Wills in the Prerogative Court Then a Legacy cannot be recovered in any other Court. For if a Will be proved there no inferiour Ordinary will meddle with that Will and alwaies they had the execution of all Wills proved there in that Court Secondly It is pretended that the party is cited out of a particular Iurisdiction But that is not a Iurisdiction within this Statute For no Iurisdiction is intended but where there is an Ordinary But in the Tower of London there is no Ordinary But it is but as a Lord of a Mannor who had probate of Wills which is but a lay Iurisdiction c. Thirdly There is no Ecclesiastical Iurisdiction there But Davenport replyed That although for the present time no Ecclesiastical Iurisdiction is executed there because the Lord is dead Yet Spiritual Iurisdiction is executed there Hutton said If there he cause de bonis notabilibus Then the Archbishop had the Prerogative and might cause the proving of the Will But it stood with reason That where an Executor is tyed to perform the Will which may be there sued and the property of sute ought to be there where there is cause of Prerogative Harvey If there be cause of Prerogative and proof of the Will in the Prerogative Court Yet in the inferiour Iurisdiction the party will be compelled to prove the Will also But by Crook and Hutton minus juste An Action of Battery AN Action of Battery is brought against two and one dies before tryall and it was entred upon the Roll But the Venire facias was awarded against both and dammages assest And by Yelverton it cannot be amended For it was not the Act of the Court but of the Iury So that now dammages cannot be severed For although he may have the entire dammages against which he will yet if they be severd you will then oust him of his Election Quod non fuit negatum A Prohibition IN a Motion for a Prohibition where the Ordinary would make distribution It was agréed Richardson being absent That if the Ordinary commits Administration to the Wife of the Intestate that he cannot revoke that But if he grant Administration to one as Prochein de Sank and another more near of Blood comes He may revoke And because the Administration being granted all the power of the Ordinary is determined and then he cannot make distribution And if the Administration be one time justly granted the Grantée had a just Interest which cannot be revoked And although it was urged that those Prohibitions were not granted untill of late time yet they say those things passed Sub silentio Yelverton They cannot grant Admistration before a division was made And by Crook and Harvey An Action upon the Case lyes against the Ordinary if he will not grant Administration where he ought And at an other day it was moved by Finch Recorder That such a Prohibition could not issue in one Davyes Case And Richardson said That because that that Case was a Case of Extremity For Davyes had not any thing or portion allotted him by his Father who was dead And his Mother who was Administratrix turned him out of her House without any maintenance stopped the Prohibition which was granted before And said that it was in the discretion of the Court to grant such a Prohibition or not But Harvey and Crook said secretly betwéen themselves that it was not in the discretion of the Court. Garton against Mellowes AN action of Battery was brought by Garton against Mellowes And the Plaintiff pleaded a Recovery by the same Plaintiff for the same Battery in the Kings Bench against another who joyned in the Battery And the Piaintiff replies Nul tiel Record Vpon which they were at issue and the Record was brought in at the day assigned And these variances were objected for to make it fail of a Record And first The award of the Dist jurat in the Kings Bench is Coram domino Rege and there it was Coram domino nuper rege But not allowed For the King died before the Plea there and then it ought to be so pleaded Secondly That in one Record the Plaintiff is Generosus in the other Armiger Brampston said That that was such a variance which could not be amended Dyer 173. One recovers in debt by the name of I. Cives and Sadler And the Defendant brought Error and removes the Record inter I. Civem Salter c. And it was rul'd that the Record was not well removed upon that Writ Dyer 178. Plo. 8. Vpon Nul tiel Record there was a variance in the day of the Return of the Exigent and in the place where the Outlary was pronounced And adjudged a variance which could not be mended And now here there cannot be an amendment because it is after tryall And by amendment there might be a cause of changeing the Plea For he took that Issue by reason of the variance and after verdict there cannot be an amendment Mich. 2 Jac. Kings Bench Tayler and Fosters Case In an Ejectione firm upon a Lease made 10 Iunii and upon not guilty pleaded it was found for the Plaintiff And in Error it was assigned for error that the Imparlance roll was 10 Iunii and Issue roll the 12 Iunii and it appeared there was a rasure And it was agréed that if it was after verdict it could not be amended Atthowe This variance is not substantiall And the cases put do not make to this case For Salter and Sadler are two severall Trades And it cannot be intended the same man for he may vary in his action as he pleases But the Court said nothing to that Exception Thirdly In the Record of Nisi prius there was another fault It was agréed that a Material variance cannot be amended Yelverton said That he might have new Execution For he pleaded a recovery and execution in Bar and that they came to take whereof he had failed For that it stood now as another battery For it does not appear by the Declaration of the Plaintiff c. Smith against Sacheverill AN Action of Wast is brought by Smith against Henry Sacheverill and declares Whereas Henry Sacheverill the Grandfather was seised of these Lands he levyed a Fine of them to the use of himself for life with power to make a Lease for three lives and after to Smith his son for his life the remainder to the first begotten son of Smith in tayle The Grandfather makes a Lease for three lives and dyes and Smith and his first begotten son bring this Action of Wast against the Lessee and they assigne their wast in killing red Deer in a Park and upon nul wast pleaded it was
one of them dyed before partition yet their heirs should hold severally according to the intent of the Will for otherwise the Surviver should hold place which against the will of the Devisor Northens Case A Man seised of a Mannor having all the Goods of Felons de se within the same Mannor and makes a Lease for years of parcell of the same Mannor to a man and afterwards makes another Lease of the same Lands to commence after the determination surrender or forfeiture of the first Lease The first Lessée was a Felo de se the Lord Lessor of the Mannor enters into the lands Leased as forfeit and the second Lessée ousts him and it séemed to Crook that the Entry was lawfull enough Harvey said That the Lessor to whom the Frank-Tenement belonged entring into the land the Frank-Tenement drowned the lesser Estate and the Lease for years is extinct in the Frank-Tenement And it was said That therefore the first Lease extinguisht But if before that the Lord had aliened the Mannor saving to him the liberty and after had entred for the Forfeiture the second Lessée could not enter for it is not any determination of the first Lease Crook said That if the Lessor infeoffed the first Lessée of the Mannor that is a determination of the first Lease and the second Lessée may enter The Bishop of Winchester against Markham THomas Bishop of Winchester brought an Action upon the Statute of West 1 cap. 4. de scandalis magnatum against Markham for that he preferred a slanderous Bill against him before the President of the Councel surmising that he was a covetous and malicious Bishop And the Opinion of the Court was That the words were sufficient to maintain the Action A man seised of a Mannor held in Chivalry devises two parts of it to two men in severalty and all the Remnant he devises to his heirs in Tayle the remainder over in Fée Hutton said It seems to me that the devise is voyd for the third part to the heir for he might devise the two parts by his Testament and he had done all that he could doe by the Statute and then the devise of the third part is out of the warranty of the Statute for it is not reason that by the limitation of the third part the which he could not doe that the devise of the residue which was one time good shall be defeated which Harvey granted but Crook to the contrary for although the two parts were devised by the premisses of the Testament and the third part in the end of it yet in operation of Law the one part is not before the other but the will is intire and took effect in all its parts at one and the same time by the death of the Devisor By which it seemed for the benefit of him in the remainder that he shall take the third part devised to him for if a man seised of three Acres of land held in Chivalry and devises them severally to three severall persons in Fee the heir shall have the third part of every of the three Acres and not the Acre last devised which Hutton granted So also for the benefit of a third person he ought to be judged in the third part as a Purchaser and not of an Estate by descent and so is the better Opinion in 3 H. 6. But if he had devised the Tenements to his Son in Taile without limitation over of the remainder there he might choose to be in of the Estate limited by the Devise or as heir Hutton I doubt of that for the Book is not agreed 3 H. 6. Wilkinsons Case THe Baron seised of lands makes a Feoffment upon condition to enfeoff him and his wife for life the remainder over to a stranger in Fee Atthow demanded if the Feoffee shall be bound to make the Feoffment before request made by the Baron Hutton and Crook thought that a request ought to be made by the husband And because the particular Estate which is the foundation of the remainder limited to the stranger ought to be made to the husband who is party to the condition and it is his will to take the Estate for life or refuse it and the Feme is at his will But if the Baron dyes then it behooves him to make the Feoffment to the wife without request because she is a stranger to the condition by Act in Law And so where she dyes also before the Feoffment the Estate ought to be made to him to whom the remainder is limited without any request Yelverton But if the condition was to re-enfeoffe the Feoffor and a stranger there it behoves the Feoffee to tender the Feoffment to the stranger for he had not notice of the condition and he ought to be party to all the Estate And by the Livery made to him the Feoffor shall take well enough Waterton against Loadman VVaterton makes a Feoffee to the use of Loadman in Fee to the use of another in Tayle the remainder to his right heirs in Fee Cestui que use in Tayle dyes the first Feoffees enter for to recontinue the use Crook said That when Tenant in Tayle in use makes a Feoffment nothing passes but for his own life For it had been agreed where cestui que use pur vie makes a Feoffment in Fee for it was not a Forfeiture of his Estate because nothing passed but for his life then when the Feoffee dyes during the life of cestui que use in Tayle that cannot be any descent of the Fee but as an Estate for life the which determines by the death of cestui que use in Tayle And all the Iustices were of the same Opinion for the descent was when he had not any Title of entry for by the Feoffment he had a Title during the life of cestui que use in Tayle Wherefore during his life they could not enter nor make continuall claim But if the descent had been after the death of cestui que use in Tayl then otherwise it shall be for they had a Title to enter before the descent and by their laches they are told of that Hutton seemed That the Feoffees cannot enter in that case for they cannot have the same Estate that they had before the alienation of cestui que use in Tayl for by the Feoffment the Estate of the Fee simple which was to their right heirs passes clearly and it is lawfully in the Feoffee Wherefore if they enter to re-continue the use in Tayl where they shall he seised of another Estate where they shall be seised of a Fee simple also and so there shall be two Estate of Fee simple of the same land which is inconvenient But the Iustices said That cestui que use in Tayl had no other remedy unless by the Entry of the Feoffees Harris against Marre A Man seised of certain lands in Fee makes a Feoffment in Fee to his use and afterwards makes his will by which he devises That
found for the Plaintiff and Finch Recorder moved in arrest of Iudgement first for that they assigne the wast in a Park where the wast is in Land c. Secondly Because that that Action did not lye for them both alike for if the Grandfather and he in the remainder in tayle had joyned in a Lease yet they could not joyne in wast The Books are If Tenant for life and he in the remainder joyn in a Lease they may also joyn with wast 21 H. 8 14. Although 19 H. 7. be put otherwise And 2 H. 5. Sir William Langfords Case Two joynt Tenants to the Heirs of one of them and they make a Lease for life And it was adjudged that they might joyn in wast for the Tenant for life had a reversion for life and had not made any Forfeiture If the Grandfather and he in remainder had joyned in a Lease and afterwards in wast it had been naught for the lease came out of the first root And it was resolved Tr. 2 Jac. Kings Bench Poole and Browses Case That one in remainder cannot have wast where there is an intermediate Estate for life Yelverton and Hutton did not believe the Case of 2 Jac. Crook If there be Tenant for life with such a power c. of Lands held in capite he may make Leases for life without Licence of Alienation and well proves this cause Yelverton and Hutton For the wast being assigned in a Park it is good for a Park is Land Sed adjournatur Hodges against Franklin TRover and Conversion is brought by Hodges against Franklin The Defendant pleads sale of the Goods in Marlborough which is a Market overt and the Bar was well pleaded and an Exception was taken For that that it is not said that Toll was payed It was said by Hutton That there are divers places where no Toll is to be paid upon sale in Market And yet the property is changed and Iudgement accordingly Grimston against an Inn-keeper IN an Action upon the Case it was said at the Bar and not gain-sayed That they ought to say in the Declaration Trasiens hospitavit for if he board or sojourn for a certain space in an Inne and his Goods are stollen the Action upon that is not maintainable And for omission although the Verdict was given for the Plaintiff Iudgement was given Quod nihil capiat per billam upon fault of the Declaration and he paid no Costs Wilkins against Thomas IT was said by the whole Court That a consideration is not traversable upon an Assumpsit but they ought to plead the generall issue and the Consideration ought to be given in Evidence Ireland against Higgins IReland brought an Action upon the Case against Higgins for a Greyhound and counts that he was possessed ut de bonis suis propriis and by Trover came to the Defendant and in consideration thereof promised to re-deliver him It seemed to Yelverton that the Action would not lye and the force of his Argument was that a Grey-hound was de fera natura in which there is no property sed ratione fundi live Deer and Coneys and vouchd 3 H. 6. 56. 18 E. 4. 24. 10 H. 7. 19. for a Hawk for Hares are but for pleasure but Hawks are Merchandable This difference in 12 H. 8. is allowed so long as a Dogge is in the possession of a man an Action of Trespasse lyes detinue or replevin But no Action if he was out of his possession and so had not a property then there is no consideration which is the foundation of an Action Hutton to the contrary and said the whole argument consisted upon false grounds as that a Dogge is ferae naturae Which if it were so he agreed the difference in 12 H. 8. But he intended that a Dogge is not ferae naturae for at first all Beasts were ferae naturae but now by the industry of man they are corrected and their savagenesse abated and they are now domesticae and familiar with a man as Horses and a tame Deer if it be taken an Action lyes Rogers of Norwich recovered Damages pro molosso suo interfecto And 12 H. 8. So of a Hound called a Blood-hound And a Dogge is for profit as well as for pleasure For a Dogge preserves the substance of a man in killing the Vermine as Foxes And now is not an Horse for the pleasure of a man for a man may goe on foot if he will and an Horse is meat for a man no more than a Dogge Therefore an Action may lye for the one as for the other And for a Hawk he ought to shew that it was reclaimed for they are intended ferae naturae One justifies in 24 Eliz 30. for a Battery because he would have taken away his Dogge from him A Repleavin was brought for a Ferret and Nets and a Ferret is more ferae nat than a Dogge Seale brought 25 Eliz. Trespass for taking away his Blood-hound and there it was said to be well laid And then now if he has a property the consideration is good enough to ground an Assumpsit It is adjudged that a feme dowable The heir promises to endow her before such a day and the Action is maintainable upon that by the Court Intraturudic pro quer if no other matter were shewed by such a day Jenkins Case HE brought an Action upon a promise to the Plaintiff That if he marryed her with the assent of her Father she would give him 20. l. Adjudged a good consideration by the Court. 3 Car. rot 414 Sir Edward Peito against Pemberton SIr Edward Peito is Plaintiff against Pemberton in a Replevin and the Defendant was known as Bayliff to H. Peito and said that H. Peito the Grandfather had granted a Rent for life to H. Peito the Son to commence after his death The Plaintiff confesses the grant but sayes that after the death of Peito the Grandfather these Lands out of which the Rent issued descended to Peito the father who made a Lease for a thousand years to the Grantee and dyes The Avowant confesses the Lease but sayes that before the last day of payment he surrendred to the Plaintiff Vpon which there was a Demurer and the question was whether the surrender of the Lease would revive the rent Harvey If he had assigned the Lease to a stranger the rent had been suspended 5 H. 5. One grants a rent charge who had a reversion upon a Lease for life to commence immediately there the question was when the Lease was surrendred whether the rent now became in esse because that the Lease which privileged the Land from distresse is now determined in the hands of the Grantor himself Crook If the Grantor had granted reversion to a stranger and the surrender had been to him It was clear that the suspension had been for the term Hutton If a man seised of a rent in Fee takes a Lease of Lands out of which c. for years and dyes the
not but a liberty given by the Conisee to the Conisor to be at large That does not release the Execution Dolbins Case IN a Replevin the parties were at Issue and the Plaintiff sued a Venire f. c. returnable such a day at which day the Sheriff does not return the Writ Wherefore the Avowant by Ward prayed a Venire fac with a proviso for him And it was granted by the whole Court Fossams Case A Man after the Statute of 27 H. 8. makes a Feoffment in Fee to the use of himself for term of his life and after his decease to the use of I. S. and his Heirs The Feoffor does waste And I. S. brought his Action of Waste And now if his Writ shall be general or special was the Demur in Iudgement And Hutton and the other Iustices were clearly of opinion That the Plaintiff ought to have a special Writ And so it was adjudged afterwards Doswell against Iames. IN Debt brought upon an Obligation Iames shews that the Obligation was endorsed with a Condition to perform all the Covenants comprised in an Indenture and he pleads that all the Covenants were fulfilled And does not shew in certainty the Covenants nor how they were performed And Hitcham said that the Plea was not good For there is a Diversity when one pleads in the Affirmative and when in the Negative For if in the Affirmative he shews in the certainty how the Condition or Covenants were performed And there is no diversity in my opinion between the Conditions which were upon the dorsed Obligation and the Covenants in the Indenture And it is to be thought that he who knows more of the Truth should shew it in his Plea And therefore he who pleads the Affirmative shews how the Conditions are performed Because it lyes much in his knowledge Whether he hath performed them or not But where he pleads in the Negative otherwise it is For there he is not to shew the certainty And yet I will agree that if one brings an Action of Debt upon an Obligation indorsed with a Condition The Defendant may plead the Conditions performed generally But otherwise it is of Covenants in an Indenture And in an Obligation with a Condition endorsed if he pleads the Conditions performed and he shews what thing he hath done If it be in the Affirmative he ought to shew the certainty of it also So that for that cause the Plea will not avayl Also it is incertain and doubtfull to the Iury. For if in that Case we are at Issue upon such a general Plea Although it shall be tryed by the Iury Yet it would be strange to enquire of such general things Wherefore c. Gerrard against Boden AN Annuity was brought by Gerrard against the Parson of B. And the Plaintiff counts That the said Parson granted an Annuity of 40 l. pro bono consilio suo imposter impenso for term of life of the said Parson And for 30 l. of arrerages this Action was brought Finch thought the Count not to be good And first it is to be considered If that Annuity might be assigned and granted over or not And as I think it cannot For an Annuity is not but as a sum of mony to be paid to the Grantee by the Grantor And not at all to the realty if the Land be not charged by express words in the same Deed. And to prove it If a man grant an Annuity to me and my Heirs without naming of my Heirs If the Annuity be denied it is gone Because my Person is only charged with the Annuity and not the Land So if a man grants to you the Stewardship of his Mannor of D. and to your Heirs you cannot grant that over And so of a Bayliwick But peradventure it may be said That an Annuity may be granted over in this Case Because in the Habendum It is said to the Assignees of the Grantee But that is nothing to the purpose as I think For I take a difference when a thing comes in the Habendum of a Deed which declares the Premises of the Deed For there it shall be taken effectuall but otherwise not As if Lands be given to a man and his Heirs habendum sibi haered de corpore suo procreat That is a good tayl But if a thing comes in the Habend which is repugnant to the Premises of the Deed and to the matter of the thing which is given by the Deed Then the Habend is void for that parcel As in the Case at Bar it is meerly contrary to the nature of the Annuity to be assigned over to another And there is no remedy given for it but an Action and it is Common learning that a thing in Action cannot be assigned over unless it be by the grant of the King Also by their Declaration they have acknowledged it to be no more than a chose in action Then a Rent seck for which he had not any other remedy but an Action after Seisin For he said that he was seised in his Demesn as of Franktenement of the Rent aforesaid Then it ought to be a Rent-seck For of no other Rent can a man be seised in his Demesn because they lye in prend As of Advowsons common for years and of Estovers And I will not agree that difference put by Littleton in his Book to this purpose For of such things which lye in manual occupation or receipt A man shall not say that he was seised in his Demesn as of a Rent Because it lyes in the prend Pasc 4 Car. Com. Hanc And in the 21 E. 4. The Case is doubtfull And Crawley of the same opinion Hitcham of the contrary And at another day Hutton said that the parties were agreed Hitcham We desire to have your opinion notwithstanding for our learning Hutton said We are agreed that the Annuity may be granted over and it is not so much in the personalty as hath been argued by Finch And in some Books it is said that a Release of personal Actions is not a Plea in a Writ of Annuity Groves against Osborn THe Case was thus A man makes a Lease for life the Remainder for life upon Condition that if the second Lessee for life dye in the life of the first Lessee That the Remainder in fee shall be to another And it was said That that Remainder might commence upon that Condition well enough It was said by Atthowe That where a Remainder depends upon a determination of another Estate So that none shall take any Estate by the Remainder upon Condition then the Remainder is good As if a man give Lands to A. for life upon Condition that if I. S. pay me 40 s. before such a day That the Remainder shall be to him That is a good Remainder But when an Estate is to be defeated by a Remainder depending upon that Then the Remainder is not good As if I lease Lands for life upon Condition That if the Rent be in
himself from all rights as concerning himself yet the Donor shall by force of this Statute which at the Common law he could not And if the Donor will release all his right in the Land to the Donee after a discontinuance by Feoffment his release though it will extinguish no right to the very Land yet it will extinguish Rents which proves that the Donee by his Feoffment cannot dismiss himself of all his right but that by the Statute of West his alienation is disabled as to that but that the Donor may avow for the Rent But wheresoever Tenant in tayl suffers a Recovery or levies a Fine the Rents together with the entayl ceases And the answer as to that is imperfect to resemble it to the Case of tenant in see simple doth alien and yet the Lord may avow upon him for the Cases have no resemblance for as Littleton well distinguisheth when Tenant in fee hath departed with his whole Estate he is no more Tenant to the Lord to avow upon though the Lord if he Will may avow upon him for the arrerages and if the Lord after future alienation release to him all his rights in the Land the Release is void to release the Rents and Services in all which it differs materially from the other Case and it is an equall proportion of the Law That when the Lord aliens his signory the Tenant is to he acquainted that all Arrearages may be paid that he may have no after-reckonings for after notice and the Arrerages paid the avowrie vanisheth Now for the Heir in tayl claiming from his Ancestor after his Feoffment by descent from him thereby allowing a right to remain in him against his Feoffment The Case is more difficult because during the Feoffor there can be no motion of that right neither by the Feoffor who hath hard himself nor his Issue because his Right is not yet come yet let me put this Case upon the Statute 11 H. 7. upon the opinion of Mountague Chief Iustice If Tenant in tayl Iointress make a Feoffment the person to whom the land doth belong after her death may enter and hold it according to his right Now till such Entry there is a discontinuance but when the Issue enters he is an Heir intayl et quasi eins per discent But now generally when Tenant in tayl hath made a Feoffment and dies the Heir shall bring a Formedon in the Discender and shall count that descendere debet from that Ancestor that made the discontinuance performam doni and therefore the Writ saith discendit jus it is as much devenit jus It is true that regularly a Feoffment bars all former rights and future rights yet respect to be had to Estrangers Albanies Case 2 Rep. Archers Case 1 Rep. 66. 9 H. 7. And therefore in Archers Case Lands were demised to one fore life remainder to his first Heir male Tenant for life made a Feoffment in fee and died his next Heir was barred of his right for ever by the Feoffment A man seised of Land by right of his Wife makes a feoffment in fee and then the Estate is made back to the Wife she is thereby remitted and her Husband shall never be Tenant by the Courtesie and therefore well resolved if Tenant in tayl discontinue and levy fine with Proclamations is no bar to the Estate tayl Now this Case is irregular because it standeth by Act of Parliament which is able to make the same Act good to one purpose or person and void or voidable to another as the Statute of Ecclesiastical persons and binds the party but is void or voidable against the Successors and shall nevertheless when they enter be in by succession And that there is still a right remaining in the Tenant in tayl appears in that he hath still in him a power to bind it more finally and totally by fine and recovery if he pursue them rightly and therefore note Cuppledikes Case If Tenant in tayl with divers remainders over make a Feoffment and Feoffee vouch not the Feoffee Tenant in tayl in possession but the first in Remainder by the Statute the Feoffees are not bound but are remitted and Maunsells Case there is cited where one recovery is a bar to 3 several Intayls with double voucher And this is called jus extinguendi which he could not extinguish and discharge if not in him and in his power and therefore there is no cause to frame Abeyances needless and in vain but the Law allows not nor admits not but in Cases of necessity as in the vacancy of Bishops Parsons and other Ecclesiastical persons or the like Remainders to right Heirs upon Freehold abeyances are not allowed but where the original Estate required them or where the consequences of Estates and Cases do require them As for the first in Case of single Corporations Bishops Deans and Parsons which must dye and a vacancy of freehold or a Remainder to the right Heirs of I. S. yet living Or Secondly in Case of congruity as if a man gives a Warranty and die his Heir in ventre sa mere may not be vouched but if there be Heir he may be vouched and a Vouchee may take and plead a Release quasi tenens or may lease a Fine to the Defendant of the Land in Question But for Estates that of their own nature and origination creation are perfect and intire as this Estate entayl is the Law permits not vain affected abeyance or fictions by the voluntary Act of the party as this to no good which should preserve a right to serve the Heir and to defraud the King which was one of the principal reasons for the making the Statute 27 of H. 8. for the transferring of uses into possession Vses being but a kind of abeyance and shift to kéep the profits to the use and defraud the King and Lords of their Escheats and them that had a right to know against whom to bring their Actions Littleton was confounded in himself when he made an abeyance of totum statum suum and yet made an Estate for life which is condemned in Walsinghams Case by the Iudges Again though fictions take place amongst common person the King is not bound by fictions and therefore the King is not bound by his remainders by recompence feigned upon a common recovery warrant collateral binds not the King but warranty with real and actual Assets nor the King is not bound by Estoppels of his own recitall certa scientia as it is in Altenwoods Case And I hold plainly that as the Land in possession is distinctly and literally given to the King so the right is as literally directly and plainly given to the King by discharge of that ancient right whereof formerly it was bound for when the Statute saith that the King should have the Lands saving the right of all persons other than the Offenders and their Heirs and such as claim to their use it is plain that the eye of the Statute was not
said Goe not to such a one c. it is actionable without question Slander of one in his Trade will bear an action And so all being connexed alike it ought to be intended that he killed him in respect of his skill In Cases of Defamation Sir George Hasting's Case Thou didst lye in wait to kill me with a Pistoll were actionable So if one touch another in respect of his skill in that that he professes it will maintain an action c. And Yelverton to the same purpose for there is a difference between a Profession and a particular Calling As if words are spoken of one that is a Iustice of Peace he ought to shew that he was then a Iustice of Peace for he is removable and may be changed every Quarter Sessions But as to a Calling the Calling of every man is his Free hold 43 E. 3. Grant of an Annuity to one pro consilio and he professes Divinity Physick and Law there the grant is pro consilio generally for Physick if that be his usuall Profession And it is intended that a man alwayes dyes in his Calling If he said to I. S. Thou art a murtherer it shall not be intended of Hares for the Iudges are not to search so far for construction Loquendum ut vulgus intelligendum et sapiens If one sayes of a Merchant Put not your Son to him for hee 'l starve him to death These words are actionable for that that it comes within the compasse of the disgrace of his Profession And so of a School-master Put not your Son to him for hee 'l come away as very a dunce as he went Harvey If one sayes of a Iudge He is a corrupt Iudge it cannot be meant of his body to be corrupt but it shall be intended of his Profession Peitoes Case before HEnden for the Defendant the Case is thus A Rent is granted for life out of Lands which descend to the Heir and he makes a Lease of parcell of the Land to the Grantee for years who surrenders the term Whether the Rent shall revive or suspend during the term And it was said by him it shall revive First For that that it is the act of him who is lyable to the Rent to accept the surrender And there is a difference where there is a determination barely by the act of the party there it shall not be revived For the first 21 H. 7. 9. Tenant in Tayl of a Rent is infeoffed of Land and he makes a Feoffment of Land with a warranty to B. with Voucher as of land discharged of that Rent And so it is 19 H. 6. 55. Ascue put this Case Grantee of a rent in Fee and Donee in Tayl of Land infeoffs the Grantee who grants that over and afterwards the issue in Tayl recovers in a Formedon yet the rent shall not be revived But if it had been the joynt act of the parties as so by surrender it should have been revived First It is clear that if a Chattell personall be suspended by Sute it shall be gone for ever As if a Feme marries the Obligor 11 H. 7. 25. unless suspension be in anothers right if it be by the act of the party there it shall be revived As if a Feme Executrix marry with the Obligor and he dyes the suspension is determined and they are revived against the Executors 7 H. 6. 2. In one Gascoines Case Lessee surrenders to the Lessor upon condition the rent be suspended but if the Lessor enter for conditions broken the Rent is revived Which in effect is our case A rent is granted to the Daughter and the land descends to her and her other Sister who make partition The Rent is revived for it is the joynt act of both parties Plow 15. If a man had a Rent and disseises the Tenant of the land and after the Disseisee re-enters Where there is a revivor of the land there is a revivor of the Rent for the disseisin was the cause of the suspension and that now is gone Secondly Because that when the Lessee for years surrenders the term is determined to all purposes and the Lessor is in of his Estate is Fee and there is a diversity of surrender in respect of a stranger for to a stranger it may have Essence after surrender But as to himself it is otherwise extinct And he cannot say that it had any Essence 5 H. 5. 12. But in respect of a stranger it ha's continuance as if an Executor surrenders yet it shall be assets And all acts done upon Lessee for ltfe before surrender shall have a continuance after And so he prayed Iudgement for the Avowant But more after Wakeman against Hawkins IT was said That if an Executor was sued in this Court by Originall he shall not put in Bayl. But if he be arrested in an inferiour Court and removed by Habeas corpus he ought to put in Bayl. Stamford and Coopers Case STamford and Coopers Case was thus I. S. acknowledges a Statute to Cooper the 22 January and afterwards he confesses a Iudgement to Stamford the 23 of January next ensuing the Statute And it is extended And Stamford brought a Scire fac against Cooper to wit now because he ought not to have the land by Elegit And the Question was whether the Iudgement by relation shall defeat the Statute And it was resolved That the Iudgement shall have relation to the Essoin day which is the 20 day of Ianuary for that is the first day of the term legally and the fourth day after is the first day of the Term open Dyer 361. Pla. 10. A Release was pleaded after the last continuance and it bore date the 21 of Ianuary which was after the day of Essoin de Octab. Hil. And for that nought because that it came late for it ought to have been after the last continuance and before the last day c. 33 H 6. 45. Nisi prius was taken after the day of the return and before the fourth day after and adjudged nought because that the day of the return which is the Utas is the first day of the term and the fourth day after but a day of Grace and that is the difference If a man be obliged to pay money the first day of the Term he shall not pay it but upon the fourth day after for that is the first day in all common acceptance But in all legall proceedings the first day is the Essoin day And so it was adjudged 16 Eliz. And in the Kings Bench it was in one Williams Case A Iudgement was given the 20 of Ianuary and a Release of all Errours the 21 Ianuary and adjudged that that bars the Iudgement given the 20 Ianuary although it was not entred the fourth day after A Iustice in the Kings Bench examined an Infant upon inspection the Essoin day and found him to be under age and would not permit him to confess a Iudgement although that he would
rescous there is no remedy against him as it was adjudged And the difference is that when he goes to make execution it is at his peril if he does not take power enough with him so that he may do it And if the Gaol be broken it is no excuse for the Sheriff Also if the party taken before he come to the Gaol is rescued there is no remedy against the executors of the Sheriff If debt be brought against the Sheriff for an escape and in that a recovery the Plaintiff shall never take the party again And so also if he brought an action against the party and recovered the Sheriff may plead that And for the book in Fitzh Nat. brev cited it remains doubtfull Hutton a Stranger commits waste and the Lessee dies yet no remedy against the party who committed the waste for the Lessee is charged of waste And so also the Sheriff of an escape But after as it was told me by one who was present Iudgement was given for the Plaintiff Humbertons Case IT was said by Richardson and agreed by Hutton That a term evicted upon an Elegit is grantable but upon a Statute Staple or Merchant not And Richardson said That Fillwoods case in the 4 rep 66. if it be well observed will prove that difference Isham and Lawnes Case NOte in evidence to the Iury in an Ejectione firm betwéen Isham and Lawne It was said by Richardson and Hutton and by divers Serjeants at the bar and not denyed by any If a Son disseise his father and levy a fine with proclamations to a Stranger upon whom the Father enters and dies The son may re-enter against his own fine Allen against Westley IN evidence to the Iury betwéen Robert Allen and Isaac Westley upon the 5. Eliz for perjury Richardson there remembred that there was one charged with perjury and it was layed that one swore that he drew his dagger and beat and wounded another And it was found to be with a staff and it was agréed not to be perjury for the beating was only material It was one Styles's his case and it was agréed by the Court in that case that although a witness swears the truth yet if it be not truth of his own knowledge as if he shews how one revoked a will by paroll in his hearing when the words were spoken to another in his absence he does not swear truly and it is a corrupt oath within the Statute And it appears in the case in which this perjury was supposed to be committed which was between Allen and Westley also that these words were good words of revocation of a will I utterly renounce and detest that Will and will make a new one But if they were That Will shall not stand I will make a new one they are not For the first shews a present purpose of revocation the last a fortiori but more afterwards Thomas and Kennis's Case before DAvenport argued for the Plaintiff And the Question here is Whether there was any Estate in Edward and Walter setled at the time of the Fine levyed Or their Estate was only in contingency Because that Richard was then living For I agrée that if at the time of the Fine levyed Edward and Walter had not any Estate setled or vested but all in contingency That then the Fine destroyed all the Remainders For it is clear when Tenant for life is and the Remainder in contingency levy a Fine That is a forfeiture and destroys all the contingent Remainders 1 Rep. 131. I hope that they will agrée that if there be an Estate setled in them that Tenant for life levies that Fine Although that they in the Remainder do not enter within 5 years after the death of Tenant or after the estate escheated And that was adjudged 21 Jac. Tooker Lawns Case in the Kings Bench. But the Case was Mich. 33 34 Eliz. The Question then is whether Edward and Walter having any Estates setled in them two Estates are so limited to them joyntly for their lives so long as Richard and Anne shall have issue male of their bodies living Secondly The Estate to them was to their own use and that was not joyntly but successive And if any of those uses were in esse at that time of the Fine then they fall out clearly with the Plaintiff I conceive that both their Estates were in them First concerning the first Remainder limited to their joynt use in which it is to be considered Where the not setting forth of the Lands makes it contingent It is a strange Case That if the directions for the setting out had been observed that then there might have been a present Estate setled upon a subsequent Condition and not upon a precedent Condition Where it ought to be agréed when the Indenture is made with a Covenant to levy a Fine That no use will rise before the Fine Coment 302. Then although some things ought to be done before the uses will rise If those things had been done the use ought to be raised For certum est quod certum reddi potest 17 E. 4. 1. When contracts are upon incertainties when the thing uncertain is become certain when the Indenture was sealed that made a contingent use in the limitation but when the thing had been done it shall make a perfect use in the limitation But now it is become impossible by the non-performance c. It had been urged that so there shall be a double contingent which is concerning the Houses c. I say there is a great difference between a Collateral use which does not depend upon the other Estates and an Estate limited in course of a Remainder I agree if they be contingent Remainders the Fine will destroy and overthrow them but if there be a collateral clause by which a use is limited As if there be a Proviso that if such mony be not payed it shall be to such an use That contingent use is not destroyed by Fine 1 Rep. 130 134. Chidleys Case where the difference is directly taken If a Feoffment be made to the use of the Feoffee for life with divers contingent Remainders over If Tenant for life makes a Feoffment all the contingent Remainders are destroyed But where the contingent came in by a collateral Clause and not by way of Remainder otherwise it is As a Feoffment to the use of a man and his wife which shall be a Remainder over That is a good use to the wife and cannot be destroyed by feoffment Dyer 274. and Bracebridges Case cited in Chudleys Case 133. It was adjudged accordingly In the third branch here it is If he dies then she should have the Houses during widdowhood But the course of the Remainder came in the fourth clause And that had relation to the first And as to the second as it is shewn that at the time of the limitation it was not the intent that the Remainder shall be contingent to Edward and Walter
If I grant to a man that if he mary my Daughter he shall have my Mannor of Dale for years the mariage ought to be before he shall have any thing in the Mannor But if it had been that he should have had my Mannor for 7 years if he mary my Daughter Then the mariage is conditional subsequent that if he does not mary I shall have my Mannor again 10 E. 3. 44. The Abbot of Bosneys The difference is there put by Brerewood Trin. 4 Car. Com. Banc. 36. H. 6. An Annuity granted untill he was promoted to a benefice That is conditional from the Defeasance But if it was that the Grantée did such an Act that he should have an Annuity And ex vi termini there is a perfect Estate before the if and the former if is well explained by the last That if there be not issue male then the Estate shall cease 10 Rep. 41. A Condition in its nature is not to precede an Estate As if the Lands be given to a woman for years si tam diu vixerit 35 Assise plo 14. The Case in point of a Remainder which comes to our Case and conteyns both the parts of that difference As it is in Colthursts and Binshams Case The Prior and Covent of Bath leases Land for life the Remainder to W. Si ipse inhabitare et residens esse velit infra praedict terram And if it shall happen that the said W. should mary before H. Then the Remainder to P. And the Question is whether it is a Condition precedent or subsequent Resolved that the second is precedent For that that the Si precedes and for that makes the Estate contingent But for the other Si after the Estate limited Si ipse inhabitare vellet They were the very words of Mountague Chief Iustice It cannot be denyed but that it is subsequent and then goes in Defeasance and the other ought to shew the non-performance of it And that Case is more strong than our Case is For that Estate is by way of Livery not by use For in Case of Livery there he ought to have a time to do the thing And our Case then he should have for life determinable upon the Si c. And that construction of Vses shall be clear by the intent which appears that there ought to be a present Estate Where uses are by Indenture if by one construction the Intent is frustrate and if by another upheld That ought to be taken ut res magis valeat c. The Lord Sturtons Case Where a Lease was made of a Mannor to two Hubbards to have to them and to two others for their lives the first two dye And it was ruled that it was good but to the first two for their lives and not for the lives of the four Because they shall take but in point of Estate See more after Termino Trin. 4 Car. Com. Banc. The King against the Bishop of Canterbury THe King brought a Quare impedit against the Bishop of Canterbury Sir John Hall and Richard Clark for the Church of Marleborough in Northamptonshire And declares that Richard White was seised of the Mannor to which the Advowson belonged And the 6 Iac. by Indenture he covenanted to stand seised to the use of himself and his wife for their lives and to the Heirs of Richard White And after White presents one Boynton and dies and his wife maries with Sir Iohn Hall The first of Iune 6th Iacob by Deed grants proximam advocationem to two to this intent that he might receive of such a Parson that he presented all mony as should be agréed betwéen Grantor and Grantee And that this was done Boynton lying in extremis And then the 26 Ian. 16 Iacob there was a corrupt agreement between Sir Iohn Hall and one of the Grantees That for 200 l. to be paid by the Clark Blundell That the other Grantee should present him And the first of February Blundell pays Sir Richard the mony and the second day he was presented instituted and inducted accordingly And that upon this it appertained to the King to present The Bishop pleads but as Ordinary Sir Iohn Hall makes a Title and traverses the corrupt agreement The Incumbent pleads by Protestation that there was not any corrupt agreement as it was alleged and not answers whether the mony was paid or not But that he is Parson imparsonee of the presentment of But 16 Iacob after such an agreement scil 17 Feb. he was presented by the Letters Patents of the King to this Church and never answers to the Symony And it was held by the Court to be naught and only pleaded to hinder the Execution before the Iustices of Assise If the Tryal went against the Patron Upon a Prohibition ONe libells against another in the Spiritual Court for the tithe of two pecks of Apples and for feeding the Cattel upon the Ground And the Defendant for the Apples answered That there were two Pecks only growing in his Orchard and that they were stollen and never came to his use and for the Cattel that they were antient Milch-beasts and that they growing old were dry And that for a month they depastured with other Heyfars and that after they put them in a Meadow out of which the Hay was carried And afterwards he fed them with hay in his House Atthowe Because that the Answers were not admitted prayed a Prohibition Hutton If Appples are upon the Trees and taken by a Stranger shall the Parson be hindred of his tithe Yelverton If I suffer one to pull my Apples the Parson shall have tithes But if they be taken by Persons not known the Parson shall not have tithes of them Which was granted For they are not tithable before plucking And for that if he suffer them to hang so long by negligence after the time that they are imbessed By Yelverton he shall pay tithes For the second matter it was agreed by the Court and for the depasturing in the Meadow and for the Hay with which they were fedd afterwards tithe shall not be paid Because that the Parson had tithes of them before But if the Question is for the tithes when he went with the other Heyfars By Crook that is no cause to excuse the tithe Harvey If I have ten Milch-kine which I purpose to reserve for Calves and they are dry The Parson shall not have tithe for their Pasture But if I sell them by which it appears I kept them for fatting There tithes shall be paid Hutton agreed That although that there was so small time yet when they went with the Heyfars he shall pay tithes for them Goddard and Tilers Case GOddard against Tiler in a Prohibition Tiler sued for tithes of Milk and Calves upon which modus decimandi surmised A Prohibition was granted viz. That every Inhabitant should pay 4 d. for every Cow and 2 d. for every Calf which they proved that there was never tithe paid in specie But
to be done every such assurance as the Council of the Obligee should devise when he should be thereunto required And it was shewn by Ward That the Obligee made such a request scil That the Obligor and his wife should levy a Fine If that Request were sufficient was the Question Hutton I think that the Request is not sufficient Because it is not pursuant according to the Obligation Richardson I think although the request be void for the wife and that she is not bound to make an assurance Yet the Obligor is bound to do it For against him the Request is good enough Thompson against Thompson IT was said by Hutton In debt against Executors if the Plaintiff had Iudgement against the Defendant and sued a levare fac de bonis Testatoris If the Sheriff upon that return a Devastavit the better form is upon that to award a scire fac against the Executor before that a fieri fac shall issue of their own goods For that writ of Execution is warranted by the first Iudgement which was but of the Goods of the deceased But now if there be issued a fieri fac de bonis testat si habuerint et si devastaverint de bonis propriis Then I will agree that upon that shall issue a Capias against the Executors ad satisfacieudum Dixson and his Wife against Blyth IN this Case a Question was demanded by Atthowe If a man seised in right of his wife leases for life the Remainder over in Fee And afterwards he and his wife recover the same Land in a Writ of Entry in the post against the Lessee for life If the Wife by that shall be remitted Hutton seemed that she shall be remitted As well as where a Feoffment is made to Baron and Feme For that Recovery countervails a Feoffment and no laches shall be adjudged in the Wife For the purchase of the Writ shall be adjudged the Act of the Husband only and not the Act of the Wife But it is good to be advised of that for peradventure she shall be estopped by the Record Bromefields Case IT was agreed by all the Iustices That if Tenant in tayl by Indenture upon consideration of mariage covenant with an other that certain persons should be seised to his use for term of his life and after his decease to the use of his Son and Heir apparent That by that Covenant there is not any use changed unless only during the life of Tenant in tayl Nortons Case before FInch Recorder said de comuni jure for Estovers burnt in an house tithes ought not to be paid by the Common law there was not any tithes paid for wood And although the Statute of 25 E. 3. gives a prohibition for timber yet Underwoods were discharged of tithes See Doctor and Student 171. It is express that Estovers are not tithable because they are not renewing every year and it is parcel of the Inheritance for to destroy all the underwoods is waste And there is another case put where tithes of wood had not by the custom been paid neither ought they to be paid in law or conscience But that is not to be intended the conscience of every particular man Dawleys Case was resolved for the Wilde of Sussex and Michaelmas 13 Iac. Banc. Roy. in the case of Porter and Dike for the Wilde of Kent of the same prescription resolved to he good And so is the common experience that a whole County may prescribe so And the reason is for that that by the Common Law it was not due but by the consideration of Winchelsey Linwood 104. It was ordained to be paid For then the prelates imputed a great pestilence that then was for the negligence of paying tithes and appointed tithes of wood And the Commons were desirous to have the Statute of silva c. otherwise explained than the Clergy declares it For they say that they ought not to pay tithes of any wood that is of the growth of 10 years Hutton Wood is tithable in their nature and then there may be a custom to discharge them And the case of Harthpenny cannot be answered for if he sues for the penny a prohibition shall not be granted quod concessum fuit Crook and Yelverton But of things not tithable tithes of them cannot be sued without alleging a custom Crooke It is known that Harthpenny is good by prescription This Case is when there is not land belonging to the house so that the Parson is not answered for his tithes another way But when there are ten servants kept for the maintaining it Then by the Law of the land it appears that tithe ought not to be paid although custom had been alleged it is nothing to the purpose as if a custom is alleged to pay 4 d. for every acre in discharge of tithes and the verdict finds 3 d. no consultation shall be granted And so for wood to fence the ground or dry cattel to manure the ground Although custom be alleged there in discharge of it and found against the party yet no consultation shall be granted Hutton the herbage of barren Cattel is tithable because there is a custom which discharges those which are for the Cart. And he said that the Custom only makes that legem terrae And he cited Doctor Graunts Case He libels for tithe of an house and the party brought a prohibition and alleged modus decimandi c. And it was alleged in arrest of Iudgement as houses were not tithable de communi jure and yet a consultation was granted And there Cook put this case which I do not remember in the printed book that one libelled for tithes of trees and custom alleged and there was found no such custom in discharge yet it was ruled that no custom was granted Browne against Hancocke BRowne brought an action upon the case upon an assumpsit against Hancocke and declares that whereas the 10. of May 16 Iac. there were some controversies between Charls Nichols and the Brother of the Defendant concerning arrerages of rent and it was desired that Nichols would part with his term And 19 l. and a cloak and a gelding were offered to the lessee for his term which he refused Afterwards the Defendant in consideration that the Plaintiff would labour with Charles Nichols to take the offer and make an end between them Assumed that whatsoever the Plaintiff undertook for the Defendant he would perform and also save him harmlesse for any thing that he should doe in that businesse and then he said that he procured Charles Nichols to assign his term and to accept the cloak and gelding which the Defendant did not perform and allso that the Plaintiff covenanted with Charles Nichols to perform the agreement and obliged himself to that in 50 l. And that afterwards Charles Nichols filed a bill of debt for the money whereupon he compelled him to pay it and upon non assumpsit pleaded it was found for the Plaintiff and
only upon the Land in possession but also the rights to the same the one in point of Giving The other in point of renouncing The Land in possession could be but in one that is in the Offenders and so it was given but the rights to the same Lands might be in sundry persons in the Offendor or in his Heirs or in Strangers Now when the Statute saith the King shall have the Land without saving the Rights of the Offendors or his Heirs or any claiming to their use Tenant in tayl discontinues and after disseiseth his Discontinuee and is attainted of Treason he forfeits his Estate gained by the Disseisin and also his right of Entayl for he cannot take benefit of his ancient Right against the King by force of the Statute of 26 H. 8. and 32 of H. 8. and this agrees with the reason and the rule in the Marquess of Winchesters Case for if the Traytor have right to a Strangers land that shall not be given to the King for the quiet of the Stranger being Possessor for the quiet of his possesion but such right shall be given to the King being Possessor for the quiet of his possession and the word Hereditament in the Statute 26 H. 8. are both sufficient and fit to carry such right in such Cases and no man will dispute but they are sufficient to save naked rights to the Lands of strangers therfore it is not for the count of words but because it is alleged it was not meant so it was said in Digbies Case and so hath Antiquity expounded it for the good of the Subject against the King and against the letter of the Law But can any man imagine that the Parliament that gave the Land to the King should leave a right in the Traytor in the same Land to defeaf him again of it since the Statute gives the right and the Land and this gives a forfeiture of all rights belonging to the Person attainted of Treason and their Heirs for the benefit of the Kings forfeiture is of so great importance that if it be not taken as large as I take it it is an avoiding of all the Statute even that 33 H. 8. cap. 20. for though they have the word Rights in both Statutes even that of 33. doth not include the right of Action to the Lands of Estrangers by an Equity against the Letter So for this time the Case was abruptly broken off by reason the King had sent for all the Iudges of every Bench. Springall against Tuttersbury IN Springall and Tuttersburies Case It was agreed by the Court If a verdict be given at a nisi prius and the Plaintiff or Defendant die after the beginning of the Term yet Iudgement shall be entred for that relates to the first day of the term Overalls Case ONe Overall was sued in London and for that that he was of the Common Bench a Writ of Privilege issued which is a Supersedeas and staid the Sute wholly and not removed the Cause And if the Plaintiff had cause of Action he ought to sue here And then by the course of the Court a Clark shall not put in bayl Foxes Case THe Lord Keeper in the Star-chamber cited one and Butchers Case to be adjudged 38 Eliz. An Vnder-Sheriff makes his Deputy for all matters except Executions and restrained him from medling with them And it was adjudged a void Exception So if it be agreed and covenanted between them that the Deputy should not meddle with matters of such a value It is a void Covenant And that was agreed by Richardson to be good Law Hil. 5 Car. Com. Banc. Overalls Case IT was agreed at another day in Overalls case by all the Clarks and Prothonotaries of the Court that the Course always was that if an Atturney or Clark be sued here by bill of Privilege he needs not put in bail But if he be sued by original and taken by a Capias as he may be if the Plaintiff wil Then he ought to put in bail quod nota MEmorandum that on Sunday morning in the next term ensuing which was the 24. day of Ianuary Sir Henry Yelverton puisne Iudge of the Common Bench dyed who before had been Attourney general to King Iames and afterwards incurring the displeasure of the King was displaced and censured in the Star-chamber and then he became afterwards a practicer again at the bar from whence he was advanced by King Charls to be a Iudge He was a man of profound knowledge and eloquence and for his life of great integrity and piety and his death was universally bewailed Termino Hill 5 Car. Com. Banc. Honora Cason against the Executor of her Husband HOnora Cason sues Edward Cason Executor of her Husband and declares by bill original in nature of debt pro rationabili parte bonorum in the Court of Mayor and Aldermen of London and alleges the custom of London to be That when the Citizens and Fréemen of London die their goods and chattels above the debts and necessary funeral expences ought to be divided into three parts and that the wife of the testator ought to have the one part and the Executors the second part to discharge Legacies and dispose at their discretion And the children of the Testator male or female which were not sufficiently provided for in the life of the Father to have notwithstanding the Legacies in the will the third part And the custom is that the Plaintiff in this action ought to bring into the Court an inventory and sue before the Mayor and Aldermen And that she had here brought an Inventory which amounted to 18000 l. so that her third part was 6000 l and demanded it of the Executor who unjustly detained c. And it was removed to the Common bench by writ of Privilege And now Hitcham Serjeant moved for a procedendo And the Court séemed to be of the opinion to grant it Because that the custom is that the sute ought to be before the Mayor and Aldermen and then if they retain the action here the custom would be overthrown But they agreed that a rationabile parte bonorum may be remanded here and that they may proceed upon it in this Court And that there be divers presidents to this purpose And they agreed that a rationabile parte bonorum is the original writ by the Common Law and not grounded upon the Statute of Magna Charta But that it does not lie but where such a custom is which custom they ought to extend to all the Province of York beyond Trent Richardson chief Iustice said that in the principal case The Plaintiff in London might have declared without alleging the custom As it is in 2 H. 4. Because that the custom is well known But otherwise Where custom ought to be shewed and where not where an action is upon the custom in a place where the custom does not extend There it ought to be shewn And afterwards at another