house or not When a man maketh a feoffment of a Messuage cum pertinentii he departeth with nothing thereby but that which is parcell of the house as buildings curtelage and gardens If a Lessee for yeares makes a Lease for a certaine Tearme of any parcell and so divides the possession thereof from the residue if of this parcell so severed Liverie be made the possession in the residue by the first lessee is not any impediment to the liverie of this parcell otherwise if a Lessee make a Lease at will of any parcell there his possession of the residue shall hinder the liverie made in this parcell and with this judgement agreed all the other Justices and Serjeants of Serjeants Inne in Fleete-streete Doddingtons Case 27. Eliz. fo 32. KIng H. 8. Ex certa scientia c. granted to A. for 300 l. Omnia illa Messuagia in tenura Johannis Browne Scituate in Well nuper prioratini de W. Spectant ' And in truth the Lands lie in D. in this Case 't was resolved that the grant was voide by the Common Law as well in case of a common person as the King because the grant is generall and is restrained to one certaine Village and the grantee shall not have any Lands out of that Village to which the generallity of the grant is referred for this Pronoune Illa hath his necessary reference as well to the Towne as well as to the Tenure of I. B. for if eyther the one or the other faile the grant is voide And so it was adjudged Per tot cur de Banco Regis Resolved also that this grant was not holpen by the Statute of 34. H. 8. For no grants are holpen by this Statute nor by any act of confirmation but such as comprehend convenient certainty 1. Quia generale nihil certum implicat And here no Tenements are mentioned to be granted because the generall grant being intire was referred to a falsity and therefore it cannot be said that the Towne was misnamed and great inconvenience would follow if c. for the King should be deceived but the Statute helpes when there is a convenient certainty as a Mannor Farme Land knowne by a certaine name or containing so many Acres c. So that it may appeare what things the King intended to passe Note t is the most sure way for the Pattentee to expresse as much as he can in certainty before the generall words SIR Rowland Heywards Case In cur Wardor 37. Eliz. fo 35. SIr Rowland Heyward seised of a Mannor in Demeans and rents in consideration of money doth demise grant Bargaine and sell to A. the said Mannours Lands Tenements and the reversions and remainders with all Rents reserved upon any demise to have and to hold to A. and his asignes after the death of the Lessor for seaventeene yeares rendring a rose the Indenture was inrolled and after the Lessor by Indenture doth Covenant with B. to stand seised of the premises to the use of himselfe and the Heires of his body and no attornment was made to A. The Question was What passed to A and it was resolved by Popham and Anderson chiefe Justices and the Court that A. may have his election eyther to take the same by demise at the common Law or by bargaine and Sale Per Statutum 27. H. 8. without attornment for it was one entire demise and bargaine of one Mannor without any fraction or division thereof and this election remaineth to A. and his Executors and assignes for here is not Election to claime one of two severall things by one Title but to claime one thing by one of the two severall Titles for where the things are severall nothing passeth before Election and the Election must precede but when one thing passeth the Election of the Title may be subsequent For if I. have 3 Horses and doe give to you one of them the property comenceth by Election and must be made in the life of the Parties The Bi of Sarum had a great wood of 1000 Acres called Brerewood and infeoffed another of one House and seaventeene Acres parcell of the Wood and made Liverie in the Wood House nothing passeth of the Wood before Election and the Heire of the feoffee may not make Election Bullocks Case 10. Eliz. Dyer In case where election is given of two several things he which is the primer Agent and that ought to doe the first act shall have alwayes the Election As if a man grant a Rent of twenty Shillings or a Robe the Grantor shall have the Election for he is the primer Agent eyther by paying the one or delivering the other If a man make a Lease rendring twenty shillings or a Robe the Lessee shall have the Election Causa qua supra but if I give unto you one of my Horses in my Stable there you shall have the Election for you are the Primer Agent by taking or seising one of them and so of twenty trees in my Wood. Note for Elections these diversities 1. When nothing passes to the grantee c. before Election there it ought to be made in the life of the Parties but when the Estate passes presently c. the Grantee c his Heire or Executor may elect 2. When the same thing passes and the Donee c. hath Election in what manner c. he will take it the Donee Heire or Executor may elect 3. When Election is given to severall persons the first shall stand 4. When Election is given of two severall things he which ought to doe the first Act shall have Election 5. When the thing granted is annuall and to have continuance there the Election remaines to the Grantor in case where the Law gives him Election as well after the day as before otherwise t is when the thing is to be performed Vnica vice 6. The feoffee c. by his act may forfeit his Election as if A. infeoffe B. of two Acres Habendum the one for life the other in Taile and hee before Election makes a feoffement of both here the feoffor shall enter in which he pleases for the wrong of the feoffee 7. Though the Lessees here enter generally yet they may Elect after so if one be Executor and Devisee of a terme and enters generally c. and after the Lessees in the principall case made Election for to take by bargaine and Sale and had the Rents The Bishop of Winchesters Case 38. El. fo 43. In a prohibition REsolved that at common Law none had capacity to take Tythes but spirituall persons or Persona mixta as the King and regularly no meere Lay man was capable of them except in speciall Cases for he could not sue for them in Court Christian and regularly a lay man had no remedy for them till 32 H. 8. A Lay-Man may be discharged of Tythes at the common Law by grant or by composition but not by prescription for it is commonly said in our Law-Books that a lay man may
the common Case which is many times agreed on in our Books a lease is made to one for life the remainder to the right Heires of I. S. this remainder is good upon contingency viz. If the Lessee for life survive I. S. otherwise not and by the same reason if a man have issue a Son of 9 yeares of age maketh a Lease untill the Sonne shall accomplish his full age the remainder to another in Fee as in this case nothing vesteth in him in remainder presently Quod fuit concessum per tot Cur. vide Chudleyes Case Libr. 10. Answered that in Wills the intent of the devisor is to be considered for when the devisor in his life by apt words by good advise might have made his Will sufficient in Law there though he makes it in disordered manner and in barbarous and unapt words the Law will order those words which want order according to his intent as in Wellock and Hamonds Case Coppy-holder in Borough English devises to his Eldest Son paying 40. shillings within c. to every of his other Sonnes c. surrenders according and dyes the Eldest Son did not pay within c. the youngest enters and adjudged lawfull and resolved First That he had a fee for the recompence and consideration though it be not to the value makes a fee in construction of a will Secondly That though paying in a Will makes a condition yet here 't is a limittation otherwise it would discend upon the Eldest Son who is to take advantage of it and then it should be at his pleasure for to pay or not and therefore it shall be as if he had devised to the Eldest Quousque he failes in payment So here the devisor hath computed what profits of his Land during the nonage of his Son will suffice for payment of his Debts c. and that he did not intend that the tearme of the Executors should end by death of H. for so his Debts should remaine unsatisfied and his Will unperformed and therefore the Law sayth it shall be construed that the Executors shall have till H. should have come to 21 yeares of age and therefore the Executors have a terme for twelve yeares which the Court agreed And though when and then are Adverbes of time yet when they referre to a thing which must of necessity happen they make no contingency and t is certaine that H. did accomplish or might have accomplished the age of 21 yeares and here if the tearme should be ended by death the remainder should be voyd and the Court agreed that in Wilis and grants the remainder ought to vest in possession Eo instanti the particular estate ends but here the Terme did not end c. Walkers Case 29. Eliz. in Banco regis WAlker Leased certaine Lands to Harries for yeares the Lessee assigned all his interest to another Walker brought an action of Debt against Harries for Rent arreare after the assignement and if the action be maintainable or not was the Question and upon great deliberation and conference with others it was adjudged per Wray chiefe Justice Sir Thomas Gawdy and Tot. Cur. that the Action did lye and was maintainable in the argument whereof many things were resolved If a man Lease a stock of Cattle or other goods rendering a Rent at severall dayes he shall not have an Action of Debt untill all the dayes be expired Likewise if a man make an obligation or other contract to pay severall summes of money at severall dayes he shall not have an action of Debt untill all the dayes be expired for these are personall contracts and not reall but in case of a Lease for yeares which is a reall contract the Lessor shall have an action of Debt after every day By the Court Debt doth well lye in this case against the Lessee there are three privities 1. In respect of the estate onely 2. Of contract onely 3. Of estate and contract together The first betweene the Grantee of the reversion or Lord by escheate and the Lessee so betwixt the Lessor and the Assignee of the Lessee the second betwixt the Lessor and the Lessee as here for notwithstanding the assignement and the privity of estate removed by the act of the Lessee himselfe the privity of contract remaines First because the Lessee himselfe cannot prevent the Lessor of his remedy but when the Lessor grants his reversion against his owne grant he shall not have remedy because the Rent is incident to the reversion Secondly the Lessee might grant it to a poore man not able to manure the Land or for malice will suffer it to lye fresh so the Lessor shall be without remedy if Debt should not lye against the first Lessee Thirdly there is privity of contract and estate together as betwixt the Lessor and the Lessee If a Tenant in Dower or Tenant by curtesy assigne over their estate yet the privity of the action remaineth betweene the Heire and them and he shall have an action of wast against them for wast done after the assignement but if the Heire grant over his reversion then the privity of the action is destroyed and the Grantee may not have any Action of wast but onely against the assignee for betweene them is a privity of Estate and betweene the Grantee and the Tenant in Dower c is no privity at all If a lessor enter for condition broken or if a lessee surrender to the lessor yet the lessor may have an action of Debt for arrerages due before the condition broken or the surrender and this is in respect of the contract betweene the lessor and the lessee 36. of the Queene Vngle and Glovers Case adjudged the lessee assignes his interest the lessor bargaines c. the reversion the bargainee shall not have Debt against the lessee but agreed that the lessor himselfe might 37. Eliz. in Banco regis Int. Overton et Siddall Two points were resolved First if an Executor of a Lessee for yeares assigne over his interest that an Action of Debt doth not lye against him for Rent due after the Assignement If a Lessee for yeares assigne over his interest and dye the Executor shall not be charged for rent due after his death for by the death of the Lessee the personall privity of the contract as to the Action of Debt in both these cases were determined 40. of the Queene Brome and Hores Case A. Lessee of three acres rendring Rent assignes one to B. the Lessor suffers a recovery to the use of C. in fee who brought Debt against the first Lessee adjudged it lyes for the Lessee assigned his interest but for part for the privity of Estate remaines because he assigned but part 41. of the Queene Marrow and Turpins Case in Debt against two administrators upon a Lease made to their Testator the Defendants plead that before the tren areare the one of them had assigned all his interest to I. S. of which the Plaintiffe had notice
rent for though it be parcell of the grange and A. and F. have the reversion of the terme and so it may be said in their tenure yet for that A. then had not H. in his occupation 't is not charged Resolved that the lessee at will is chargeable by 32. H. 8. ca ' 37. for where things are due in right and become remedilesse by the act of God the Parliament which gives remedy for this shall be favourably construed and extend to advance the remedy proportionably to the defect of the Law according to the mind of the makers and therefore the Feoffee of the Feoffee in infinitum shall be charged for otherwise the Statute shall be in vaine c. Resolved if the grantee in fee or for life of a rent service or charge after 't is arreare grants over the tenant attournes the grantor dyes his Executors are not within the Statute for by the grant the arrerages are lost and were not due to the testator tempore mortis as the Statute speakes and after the grant the testator could not distraine for the arrerages and the act gives remedy onely where the arrerages are due and become remedilesse by the act of God Sharpe and Pooles case 17. of the Queene a rent was granted to a woman for life 't is arreare she takes husband 't is arreare the wife dyes the husband brings debt against the heire being terrtenant for all arrerages Resolved that for the arrerages before the marriage he had no remedy at common Law but for the other he had debt Objected that the husband shall not have the arrerages due before by this Statute 1. Because at common Law the Executors of the wife may have an action for them and the Statute gives remedy when Executors cannot have an action and doth not intend to toll the remedy from the common Law 2. The branch says due in the wives life so the arrerages ought to incurre when she is his wife Resolved to the contrary for the Statute says due and unpaid in the wives life and the common Law gives remedy for the arrerages of an estate for life incurred in the life of the wife and therefore the Statute did not intend to extend to these arrerages but to the arrerages due before for Verba accipienda sunt cum effectu Resolved that a Feme covert cannot make an Executor without assent of her husband and the administration of her goods of right belong to the husband And the Statute in naming the woman wife intends noely to describe and designe the condition of the womaln not to imply that the arrerages ought to incurre during coverture Rawlins case 29. 30. of the Queene fo 52. A. Possessed of a house for thirty yeares except a Stable of which B. was possessed for two yeares granted all his interest to C and demised the Stable to B. for sixe yeares by Indenture after the end of the two yeares C. redemises all to A. for twenty one yeares rendring twenty pounds per annum and to pay a Fine of twenty five pounds upon condition for to reenter for non payment of the rent or Fine before the day of payment A. redemises the Stable to C. for ten yeares the rent was behinde the Fine was not paid C. enters not into the Stable nor B. attournes Resolved that where the verdict was entered three termes past and in the Roll the demise to B. for six yeares was not enterd to be by Indenture that the Roll shall be mended because the note of the speciall verdict which the Jury exhibited to the Court remaining with the Secondary purports that the Jury found the demise prout by which it doth appeare to the Court that the demise was shewne in evidence and reference made by the note to it and so 't was in Gomersalls case Resolved though the condition is of two parts in the dis-junctive for non-payment of rent or of the summe in grosse yet if A. had redemised any part of the house to C. and C. enters by which the rent is suspended that all the condition as well for the collaterall summe as for the rent is also suspended because the condition is intire and cannot be divided by the act of the parties Resolved that if A. had redemised any part to C. though C. never enters the rent is suspended and though a stranger occupy it Resolved that the lease by A. to B. for six yeares though he had nothing at the time was good by conclusion by the Indenture and when C. redemised all to A. then was the interest bound with this conclusion then when A. redemises to C. the Stable C. is also concluded for all parties and privies in estate or interest are bound by the Estoppell then the case is no other but that A. demises for six yeares the Stable to B and after demises to C. for twenty yeares which is a good Lease in reversion for fourteene yeares this is no suspension of the rent or condition for 't is no grant of the reversion but a future interest in reversion no terme but an interest of a terme as the pleading is and notwithstanding such grant the reversion is in the grantor without atturnement and he shall have the rent upon the first lease but if there be an atturnement the reversion passes and suspension will follow And therefore 't was agreed if a man leases for twenty one yeares rendring rent and a reentry the lessee leases to the lessor for six yeares to commence two yeares after the rent is arreare and by this he shall defeate the future interest vested in him Resolved that this Estoppell being found by verdict the Court ought to judge upon all the speciall matter according to Law and because they are sworne ad veritatem dicendam they did well to finde the truth of the case and leave it to the Court by Wray chiefe Justice in Pledalls case the Jury was attainted for not finding such a lease by conclusion intending 〈◊〉 they being sworne ad veritatem dicend ' 〈◊〉 not bound to finde it for the Court held that the interest of the land as to parties and privies was bound and no conclusion shall be by such Indenture after the terme ended by Wray Resolved if lessee for twenty yeares leases for two yeares rendring rent and grants all his terme and interest if the lessee attournes the reversion passes and if no attournement be yet the interest in reversion passes for the grant of a man shall not be adjudged voyd if to any intent it may take effect Resolved if lessee for twenty yeares of a house leases part for two yeares and after leases to another all for ten yeares rendring rent so that it inures as a Lease in reversion for part that the rent shall issue out of all and of the interest of the terme though it be not any estate that may be surrendred and though it be conjoyned with land in possession Error was brought upon this
life his heire shall not be in ward although he be within age by that Statute because he is not immediate heire Sondayes Case 8. Jacobi fol. 127. M. S. deviseth to his Wife for life the remainder to W. S. and if he shall have issue that then his issue shall have it the remainder to S. the remainder to T. c. Totidem verbis upon condition that if any of them or this heires of their bodies goe about to alien that he in the next remainder to enter after the death of M. W. and S. T. suffereth a common recovery to his owne use in fee he in the next remainder enters 1. Resol Every one of the Sonnes hath an estate taile 1. These words if he dye without issue Male are sufficient to create an estate taile 2. The generall clause if any of his Sons or heires of his body doe it maketh it manifest 3. The condition proveth it for they cannot alien if they have but for life for this would be a forfeiture 2. The restraint of tenant in taile to suffer a common recovery is voyd See Mildmayes Case in the sixth Book Quicks Case 9. Jacobi fol. 129. THe King Lord I. N. and Tho. Q. mesnes of a Mannor which they hold in common in Capite and tenant of three Acres holden in Chivalry T. Q. maketh a feoffment of his moity to the use of himselfe for life the remainder to I. Q. his Son in taile the tenant infeoffeth I. Q. who infeoffeth T. Q. to defraud I. N. of the wardship of his Sonne within age and dyes I. N. seiseth the Son T. Q. dyeth the King shall not have wardship of the body and moity of the three Acres 1. Resol By the death of I. Q. it was a Chattell vested in I. N. and the King had but a possibility to have it if T. Q. dye during the minority of the ward which possibility shall not devest the wardship out of I. N. 2. When the tenant infeoffeth a stranger to defraud the Lord of wardship the Lord shall not have ravishment of ward before recovery of the Land in a right of ward and although the title of I. N. be but in action yet it shall not be devested by a descent after See the Statute of 34. H. 8. in Case of collusion Bewleys Case 9. Jacobi fol. 130. THe King Lord mesne by Socage and tenant the tenant is attainted of Treason the King grants to one tenendum by Chivalry and Rent and to doe his services to other Lords the tenant shall hold by Socage of the mesne and he by Socage of the King because the intent of the King was to revive the mesnalty which cannot be by any other way and the reviving of the ancient tenure shall be in construction preferred before the reservation of a new and the honour of the King shall be preferred before his profit and there was no default in the mesne Thomas Holts Case 9. Jacobi fol. 131. GRandfather tenant in Chivalry in Capite Father and Son the Grandfather conveyeth part of his Lands to the use of the Father and his Wife the remainder to the Son in taile c. the remainder to the right heires of the Grandfather and conveys other Lands to his younger Children for life with diverse remainders over and dyeth the Father tenders livery and before he sueth it dyeth 1. Resol By the death of the Father before livery sued and after tender the King loseth the primer seisin but not meane rates if any be due 2. The Son shall not pay primer seisin nor sue livery because the Father and not he was within the Statute of 32. H. 8. 3. If the King had had one primer seisin he shall not have another of the Lands conveyed to the younger Children but that ought to be an effectuall seisin Ergo here because the King had not the effect of the primer seisin of the Father he shall have primer seisin of the Lands conveyed to the younger Children as if hee had the grant of a prochein avoidance and presents and his Clerk dyeth before Induction he shall present again and before the Statute of Donis If tenant in taile the revertion to the King had aliened post prolem suscitatam with warranty which descends upon the King it is no barr without assets the effect of the warranty 4. The King shall not have primer seisin in regard of a secke revertion which descends to the Son otherwise if a rent be reserved the King may have that for a yeare So note for a fruitlesse revertion there shall be wardship but no primer seisin Matthew Menes Case 9. Jacobi fol. 133. TEnant of the King of a Messuage in Capite who holds other Gavelkinde Land deviseth all to his 4. Sons equally 1. Whether the King shall have a third part of the Messuage onely 2. Whether out of the part of the heire onely because Praerogativa Regis cap. 1. Rex habebit c. De quocunque tenuerint c. is intended if the Land descend to the same heire to whom the Land holden did discende 1. Resolved if no Will had beene made the King shall not have the Lands holden of others in socage but when by the Will to which he is inabled by the Statute he deviseth it to his Sonnes there the saving in 32. H. 8. giveth to the King ward and primer seisin So if Lands in chivalry devisable by custome are devised to the Feme although the devisee be good for all without aide of the Statute yet the King shall have a wardship of a third part 2. The King shall have his third part out of all their Estates equally Ascoughs Case 9. Jacobi fol. 134. THe King Lord Mesne in Capite and Tenant in socage the Mesne grants to the use of himselfe for life the remainder to the Tenant in taile if the remainder suspends the Mesnalty during the life of the Mesne Resolved that during his life the Mesnalty is not suspended 1. Not as to the Mesne because he remaineth Tenant to the Lord nor by reason of the remainder for the avoâ—ding of Fractions otherwise if the remainder be liimitted in fee for then he hath as high an estate in the Mesnalty as in the Tenancy and this can never be revived and otherwise a Seigniory in fee shall issue out of a Mesnalty for life and there will be Lord and Tenant in fee and Mesne for life but if the Lord Grant his Seigniory for yeares the remainder for life to the Tenant the Mesnalty is suspended A Mesnalty or Seigniory cannot be suspended in part and in esse for part by the Act of the party but they may by act of Law or of a third party As if the Lord take a Lease of part of the Tenancy all the Seigniory is suspended but if a Gardian indow the Feme the Seigniory is in esse for that part and suspended for the residue If two Coparceners are of a Seigniory and one commeth to the Tenancy by
a restraint against any particular person in certeine Vpon a Feoffement without warranty the Feoffee shall have all the Charters which comprize warranty and others though they be not given to him because hee is to defend the Title at his perill Upon a Feoffement with warranty without expresse grant the Feoffee shall not have any Charters which serve for to deraigne the warranty paramount Also the Feoffer shall have all Charters which serve for maintenance of the Title but the Feoffee shall have all which maintaine the possession as Court Rolls and which are concomitant and incident to the possession If A. be seized of a Segniorie rent advowson or other thing that lyeth in grant and grant the same over unto B. with warranty and B. grant that to C. with warranty In this case C. shall have the first deed although B. be bound to warrantie for without that he cannot make any Defence against A. or any claiming by him Pelhams Case 32. El. fo 14. A Tenant for life the remainder in Taile the remainder in fee bargaines and sells the Land to one who before the Statute of 14. El. ca. 8. suffers a recoverie in which A. is vouched and voucheth over and he in remainder enters and the entry is adjudged lawfull for the Recovery is a Forfeiture and the remainder may enter for it is the common Assurance As if Tenant for life had levied a Fine c. and suing of execution doth not toll the entry of the remainder and a Writ of error was sued and the plaintiffe release the errors Porters Case 35. El. fo 22. 32. H. 8. P. devised a house to his wife and her heires upon condition that she by advise c. with all convenient speed after his death should assure it c. for maintenance of a Free School c. for ever and dyes 32. H. 8. the wife enters and 3. E. 6. leases to A. for yeares the heire of P. enters and his entry adjudged lawfull because 23. H. 8. extends not to good uses nor doth it make the conveyance voyd or give entry but makes the use voyd and admit the use voyd yet the condition is not for Counsell may devise c. as to have a Corporation by Pattent and licence to assure and therefore the wife ought to have performed it Any man at this day may give Lands Tenements or hereditaments to any person or persons for the finding of a Preacher maintenance of a Schoole maimed Soulders poore people reparation of Churches High-wayes Bridges marriage of poore maids or any other charitable uses But it is good policy in every such Feoffment or estate to reserve to the Feoffor and his heires any small rent or to expresse some small summe of money for the consideration of the cause before recited Altonwoods Case 42. Eliz. fo 41. H. 8. seised of an estate Taile to him and the heires males of his body and of a Fee expectant grants in Taile and dyes without issue male adjuded that the grant is voyd for the King had an estate Taile in possession by which he might grant a lawfull estate for his own life and a Fee by which he might grant an estate Taile by speciall recitall And these words ex speciali gratia c. shall not produce a strainable construction against the rules of Law or in deceptionem regis Capells Case 23. Eliz. fo 62. A Tenant in Taile the remainder to B. in Taile B. grants a rent charge A. suffers a common recovery and dyes without issue the grantee distraines the Alienee of A. brings a Replevin adjudged for the alienee by all the Justices of England that a common recoverie against a Tenant in Tayle shall binde not onely the remainder and all Leases charges c. granted or made by him in remainder but also the Reversion and all Leases charges c. granted by him in reversion Archers Case 39. 40. Eliz. fo 66. LAnd was devised to the Father for life the remainder to the next heire male of the Father and to the heires males of his body the devisor dyes the Father infeoffes J. S. with warranty First it was resolved by Anderson and Walmeslowe et tot Cur. that the Father had but onely an estate for life for that he had an expresse estate for life demised unto him and the remainder is limitted to his next heire male in the singular number and his right heire male may not enter for the forfeiture in his life for he cannot be heire so long as he liveth Secondly It was resolved that the remainder to his right heire is a good remainder although he cannot have a right heire during his life but it sufficeth that it vesteth eo instanti that the particular estate determineth Dyer 14. Eliz. fo 309. Thirdly it was resolved which was the principall poynt in this case per tot Curiam that by the Feoffment of the Tenant for life the remainder was destroyed for every contingent remainder ought to vest either during the particular estate or at the least eo instanti that the particular estate determineth for if the particular estate be ended or determined in Deed or in Law before the contingency fall the remainder is voyd And in this case by the Feoffment of the Father his estate for life was determined by condition in Law which cannot be revived by any possibilitie for this cause the contingent remainder is voyd for by the Feoffment no right of the particular estate remaineth and the better opinion was that the warranty bindes the remainder though in Abeyance Bredons Case 39 40. Eliz Fol. 76. TEnant for life and the remainder in Taile joyne in a fine Come ceo c. to A. who renders a Rent charge of 40. l. a yeare to Tenant for life the remainder dies without issue the second remainder in taile enters Tenant for life distraines for the Rent adjudged he may and that the rent remaines after the death of Tenant in taile without issue during the life of Tenant for life the fine was no discontinuance for every one gave that which he might lawfully give and t is no forfeiture by Tenant for life for the Law construes this First to be a grant of him in remainder and after the grant of Tenant for life Vt res magis valeat c. If Tenant for life and the first remainder in Taile make a feoffement t is no discontinuance though the first remainder in taile dies without issue nor is it a forfeiture but the feoffee shall hold it during the life of Tenant for life but if it be without deed then t is a surrender of Tenant for life and the feoffement of the remainder Vt res magis valeat c. Corbets Case 42. Eliz Fol. 84. of Perpetuities C. Covenants to stand seised to the use of himselfe for life and after to the use of A. his Eldest Son and the Heires Males of his body the remainder to the use of B. his second Son and the
Heires Males of his Body c. And if A. or his issue c. shall attempt c. to alien c. by which any estate shall be barred c. that after such attempt and before any act executed the use and Estate of him so attempting c. shall cease onely as to him so attempting in the same degree as if he were naturally dead and not otherwise and that then it shall be immediately to such persons to whom it should come by the intent of the Indenture c. C. dyes A. suffers a recovery B. enters c. adjudged he could not for this proviso is repugnant impossible and against Law for the death of Tenant in taile is not a cesser of the Estate taile but death without issue Males and by this reason the issue should have it in the life of the Father c. And for every discent c. Death naturall or civill is requisite and t is not materiall though Tenant in taile had no issue at the time of the breach for t was repugnant at the beginning and the estate taile doth not commence by the having of issue and a gift in taile upon condition that if the Donee dyes his estate shall cease is a void condition Also the proviso is void for the incertainty as a gift to two Et haeredibus is voide though a Warranty be made to them and their Heirs in Jermine Arscotts Case the like proviso was adjudg'd voide for be the proviso a condition or a limitation the intire estate ought to be defeated by it and an Estate in Land cannot cease for part and continue for the residue nor cease for one person and continue for another nor cease for a time and revive after The like judgement was betwixt Chomly and Humble but the Parliament or Law may make an estate voide as to one and good to another as Tenant in speciall taile levies a fine the issue is barred not the wife so a release by the demandant to the vouchee is good not by a stranger so if an Executor surrender a tearme to one respect t is extinct to another t is assetts c. And uses are within the Statute De donis though it speakes onely of Lands and Tenements and there shall be a Possessio fratris c. of them for they are guided by the Rules of the common Law Richill in the time of R. 2. and Thirning in the time of H. 4. Justices intended for to make a perpetuity but could not Shelleyes Case 23. Eliz Fol. 94. EDward Shelley leased for yeares and after Covenanted to suffer a recovery which should be to the use of himselfe and after to the use of A. for 24. yeares and after to the Heires Males of the body of the said E S. and the Heires Males of the said Heires Males c. E. S. dyes 9 of Octob. the first day of the Terme in the morning betwixt five and six a clock the recovery passes the same day and an Habere facias seisinam awarded the recovery was executed the 19 of Octob. 4 Decemb. the Wife of the Eldest Son before dead of E. S. was delivered of a Son named Henry Richard the second Son of E. S. entered and made a Lease c. Henry entred upon the Lessee who brought an Eject firmae and Judgement was given for the Defendant and t was resolved that if Tenant in taile suffer a common recovery and dye before execution that execution may be sued against the issue for the intended recompence in favour of the common assurance resolved that the revertion in judgement of Law is not in the recoveror before execution sued for the judgement is Quod recuperet seisinam which cannot be executed till entry or claime as 't is of a Common c. granted upon condition for when a man may enter or claime the Law will not put things in him till entry or claime The third and great point resolved was that the Uncle is in as by discent though he shall not have his age nor be in ward 1. Because the recovery being the Originall act had its Essence in the life of E. S. to which the execution hath retrospect 2. Because the use might have vested in E. S. if he were in life 3. Neither the recoverors by their entry nor the Sheriffe by making execution may make an Inheritance to whom they please 4. Because the Uncle claimed the use by the recovery and Indenture and by words of limitation not purchase Albanies Case 28. Eliz Fo. 111. A By Indenture infeoffed B. of two Acres to the use of A. for life the remainder in taile to C. the remainder in fee to D. with a proviso if E. dye without issue that A. at any time by indenture sealed c. in the presence of foure c. may alter c. any use c. A. of the one acre infeoffes F. and for the other Acre A. by Indenture renounces surrenders releases c. to B. C. and D. the said power condition authority c. E. dyes without issue A. by Indenture in presence of foure revokes the first uses and limits new resolved that by the feoffement the power to revoke as to limit new uses was extinct and by Wray chiefe Justice the future power may be released as a condition subsequent though the performance or breach cannot be done without an act precedent but as to this poynt the Court did not give their resolution but the whole Court agreed that if the power had beene present as t is usuall this might be extinct to any one who hath a free hold in possession reversion or remainder 'T was moved if the future power could not be released whether it might be defeated by the words of defeasance both being executory and 't was said that in all cases when any thing executory is created by a deed that the same thing by consent of all parties to the creation by their deed may be nullified as a warranty recognizance rents charge annuities covenant c. And of the same opinion was Wray chiefe Justice and the whole Court and judgement given according Chudleighs Case Or the Case of perpetuities Fo. 120. SIr Richard Chudleigh was seised in fee of the Mannor of D. and had issue foure Sonnes A. B. C. D. and 26º Aprill the third and fourth of Phillip and Mary infeoffed E. F c. in fee to the use of himselfe and his Heires of the body of G. then Wife of H. and after to the use of the performance of his Will for ten yeares immediately after his death and after to the use of the feoffes and their Heires during the life of A. the Eldest Sonne the remainder to the use of the first issue Male of the body of A. and the Heires of the body of the first issue Male and so to the second issue Male the remainder to the use of B. the second Sonne and the Heires of his body the remainder to C.
c. the remainder to D. c the remainder to the right Heires of himselfe Sir Richard Chudley died without issue of the body of G. 1º of the Queene the feoffees C. living by deed infeoffed A. in fee without consideration he having notice of the first uses A. hath issue a Sonne named S. and after I. and after infeoffes Sir I. C. with warranty S. died without issue c. I. enters c. agreed by all the Justices and Barons but two that the feoffement made by the feoffees which had an Estate for life devests all the estates and the future contingent uses also and though A. had notice of the first use 't is not materiall because the ancient uses were devested and this new estate cannot be Subject to the ancient uses which rose out of the ancient estate agreed that 27 H. 8. doth not extend to destroy uses otherwise then by execution and transferring the possession to them agreed by the most that 27. H. 8. doth not transferre the possession to any use but onely to uses In esse which doth appeare by the Statute for there ought to be a person In esse seised and also a use In esse for if there be onely a possibility of a use there cannot be an execution of the possession to the use the Statute sayes That the estate shall be out of the feoffees and that the estate shall be in such person which hath the use So that no Estate of the feoffees shall be transferred in abeyance and upon this t was concluded that contingent uses or in possibility may be destroyed or discontinued before that they come In esse as they might at common Law so the remainders limitted in use here shall follow the rule and reason of Estates executed in possession by the common law and if the estate for life here had beene determined by death before the birth of the Sonne the remainder in future should be voide though the Sonne were borne after for a remainder ought to vest during the particular estate or Eo instanti when it ends And t was holden by all that if the contingent use here had come In esse without alteration of the estate of the Land it should be executed by the Statute of 27. H. 8. Also it was holden by most that 27. H. 8. against the expresse Letter of it shall not be taken by equity because by preservation of contingent uses mischeives intended to be prevented shall be preserved and greater introduced Popham chiefe Justice said that by 27. H. 8. some uses in esse are executed presently uses in futuro agreeable to Law are executed if they come In esse in due time but uses not agreeable to Law are extirpated for the intention of the Statute was to restore the ancient common Law Five other points adjudged besides the principall matter 1. When Tenant for life the remainder being in taile to A. infeoffes the reversioner t is a forfeiture for it devests the estate in remainder so if there be Tenant in taile the remainder in taile ctc. and the diversity is when the privity and estate is sole and immediate when not 2. If A. hath issue B. and C. infants and a lease is made to A. for life the remainder to B. in taile the remainder to C. in taile A is diseised and releases to the disseisor with warranty and dyes this discends upon B. within age B. dyes the warranty discends upon C. within age C. comes to full age and three yeares after enters his entry is lawfull for he might enter in the life of his Ancestor and if he doth not enter yet the warranty shall not binde him otherwise it is when he is put to action and Caveat that after his full age he doth not suffer a discent before entry 3. If a disseisor c. who hath a defeasible title in a Mannor grant a voluntary estate by Coppy being forfeited or escheated to him this grant shall not binde him that hath right after a recontinuance of the Mannor but admittances which a disseisor c. makes to Coppy holds are good for they are in a manner judiciall acts and shall binde the disseisee 4. That an estate made to one and his Heires during the life of B. is but an Estate for life upon which a remainder may depend 5. That an Estate made to A. and his Heires of the body of Jane S. is an Estate taile against the opinion of Ascugh 20. H. 6. 36. Anne Maiowes Case 35. Eliz. fo 146. FEeoffor and Feoffee upon condition by Deed joyne in a grant of a rent charge to C. the condition is broken the Feeoffor reenters the grantee distraines the Feoffor brings a Replevin Resolved that the rent remaines to the objection that 't is the grant of the Feoffee and the confirmation onely of the Feoffor and a confirmation cannot make a conditionall estate absolute nor alter the quality of it except it inlarge it as if a Feoffor confirme the estate of the Feoffee upon condition before the condition broken it doth not make it absolute Answered and agreed by the Court that there is a diversity when the estate of him to whom the confirmation is made is upon an expresse condition there the confirmation doth not toll the condition but if such feoffee infeoffe another without condition there a confirmation to the second feoffee extincts the condition Feoffee upon condition grants a rent in fee the feoffor confirmes it to him and his heires and after enters for condition broken yet the rent remaines and by Littleton every fee simple land may be charged one way or other Concurrentibus his c. and the case 11. H. 7. is all one with our case and here 't is the stronger because the grant and confirmation were by the same Deed so that the rent was never subject to any condition The Rector of Chedingtons case 40. Eliz. fo 153. 2. E. 6. the Rector of Ched demised the Rectory to El Elderker for fourescore yeares if she should live so long and if she dyed within the said terme or aliened that then her estate should cease and then by the same Indenture demises the premises to R. E. for so many yeares as shall remaine unexpired after the death or alienation of El. for the residue of the terme of fourescore yeares if he shall live so long without alienation c. And if he dye or alien within the said terme then his estate shall cease and then by the same Indenture he grants the premisses to W. for so many yeares of the said terme of fourescore yeares as remaine if he lives without alienation and if W. dyes or aliens within the said terme that his estate shall cease and then he grants c. during so many of the fourescore yeares which shall be unexpired to T. his executors and assignes which Indenture and estate was confirmed by the Patron and Ordinary the Rector dyes T. dyes W. dyes and 17. Eliz. Ellerker
fine be reversed by nonage of the wife all the estate shall be restored to the wife presently for all the estate passed from her by the fine and so it was adjudged Banco regis in Worseleys case Resolved that though the variance of the limitation be onely in one estate and they agree in all the other yet all is voyd But if two joynt tenants or two having severall estates vary 't is good for every of their parts and shall be directed by their interests but if the variance had been in limitation of part of the land and they had agreed in the use it should be voyd for that part and good for the residue Note That though the husband might dispose of the land during coverture yet for the cause aforesaid his declaration was voyd If A. tenant for life and B. in reversion or remainder both levie a fine together generally the use shall be to A. for life the reversion or remainder to B. in fee for either of them grants that which lawfully he may grant and either of them shall have the use which the Law vesteth in them according to the estate which they would convey over Winningtons case 40. of the Queene fo 59. W. Infeoffed B. upon condition to regive to the Feoffor for life the remainder to J. Sonne and heire of the Feoffor the Feoffor enters and takes the profits without agreement or contradiction of the Feoffee and leases to D for 21. yeares and yet continues possession the Feoffee acknowledges a Statute to J. the Feoffor makes a feoffement to the use of himselfe for life the remainder to his second Sonne in taile c. and dyes the Feoffee enters and infeoffes the Sonne and heire upon which the second Sonne enters c. Resolved that though the intention was that the Feoffee should make an estate to him for his life when he hath entered without agreement of the Feoffee 't is a disseisin and the rather because as owner of the land he tooke upon him to make a Lease for yeares Resolved that by the Lease by Indenture he hath dispensed with the condition during the terme Resolved that when the Feoffor disseises the Feoffee upon condition and the Feoffee acknowledges a Statute c. This is no disability to cause the Feoffor to enter for the right of the Feoffee is not subject to the Statute but when the Feoffee in possession takes a wife grants a rent or acknowledges a Statute the land is presently subject c. And though upon entry he may be disabled yet till then he is not because the wife may dye or the Statute be released and then he may enter and performe the condition and the Feoffor by his feoffement hath extinct the condition so that the Feoffee may enter and when he hath infeoffed the eldest Sonne he hath done well Westcots Case in Communi Banco 41. El. fo 60. IF a man make an estate to three and to the heires of one of them one of them in this case hath Fee simple and yet the joynt estate continues for it is all one estate created at one time and therefore the Fee simple cannot drowne the joynture which taketh effect with creation of the remainder in fee but when three joyntenants are for life and after one of them purchase the Fee or else the Fee discends to him there the Fee simple doth drowne the estate for life for the estate for life was in esse before Note by this resolution if tenant for life grant his estate to him in the reversion and a stranger 't is a surrender for the moity and the benefit of survivor not regarded so the doubt in 7. H. 6. well resolved Resolved upon view of three presidents that judgement should be given for the plaintiffe upon a demise made by husband and wife without alledging it to be by Deed. Tookers Case 43. Eliz. fo 66. IOhn Arundell seised of Lands in Fee maketh a Lease thereof to A. and B. for their lives and after grants the reversion to C. for his life to which grant A. doth atturne being joynt tenant with B. and after A. by his Deed doth surrender to C. all his estate title and interest c. and then dyeth C. entereth claiming to hold in common with B. and whether his entree was lawfull or no was the question and judgement was given that it was lawfull for the attornement of the one tenant for life shall vest the entire reversion in the grantee because the estate of the joynt Lessees is entire and every joynt tenant is seised per my pro tout ' and by consequence the reversion which is dependent and expectant upon this estate is entire also and the atturnement of the one joyntenant is the atturnement of both Attournement is a lawfull act if one joyntenant assigne Dower 't is good Also the attornement passes no interest from him that attournes but perfects the grant of another And if one joyntenant give seisure of rent that shall binde the other but in a quid juris clamat or quem redditum reddit or per quae servitia one joyntenant shall not be permitted to attourne without his companion for doing of prejudice to his companion By Popham one joynt-tenant may prejudice another in the personalty but not in the realty if one take all the profits or release a personall action the other hath no remedy because of the privity and trust betweene them and the folly imputed to him to joyne with such a companion Note if a tenant have notice of the grant by a stranger and doe give his assent thereunto it is a good atturnement although it be in the absence of the grantee but disagreement ought to be to the party himselfe or doe atturne for any part it is good for the whole for the intent of an atturnement is but onely an assent to perfect the grant of another and he which atturnes cannot apportion divide or alter the grant Lord Cromwells case 40. of the Queene fo 70. BLunt bargained c. the Mannor of Alexton to which the Advowson of A. was appendant by Indenture to have as after in the same Indenture is mentioned and B. covenanted to suffer a common Recovery to the use of Andrewes and his heires rendring 42. pounds per annum to B. and his heires with a nomine poenae And further 't was covenanted and agreed as well for the assurance of the Mannor to A. as of the rent to B. that B. should levie a Fine c. to A. and his heires and A. by the same Fine should render a rent of 42. pounds per annum c Provided alwayes that A. by Deed should give the Advowson c. to B. during his life and if it did not become voyd during his life one turne to his executors c. And further 't was covenanted and agreed that all assurances afterwards to be made should be to the use of this Indenture c. after a recovery was
the husband had and to the remainder A. tenant in taile the remainder to B. the remainder to C. the remainder to D. A. makes a Feoffement the feoffee suffers a recovery B. is vouched and he vouches the common vouchee A. is not bound but B. and all the remainders are for though the remainders are discontinued and cannot be remitted till the taile be recontinued yet in a common recovery which is the common assurance he which comes in as vouchee shall be in judgement of Law in privity of the estate which he ever had though the precedent estate upon which the estate of the vouchee depends be discontinued so here the husband shall be said in of the taile and 't is the stronger because the estate of the wife was put to a right so that the husband came in as sole tenant in taile and not joyntly with his wife because she is not vouchee and he cannot be in of another estate because once he had a taile but had they had a joynt estate to them and the heires of their two bodies he being onely vouched it might be doubted whether the taile should be barred because the wife had a joynt inheritance with him 8. of the Queene Dyer Knivetons case A Praecipe is brought against tenant for life and the remainder in taile they vouch over it shall not binde the taile for the remainder is not tenant to the Praecipe and the land is recovered against the tenant for life onely and recompence shall not goe to the remainder and the remainder was never seised by force of the taile and so 't was adjudged in Leach and Coles case 41. of the Queene Heydons case 26. of the Queene fo 7. THe Gardians and Cannons Regular of the late Colledge of O. seised of the Mannor of O. granted a Coppihold to Father and Sonne for their lives c. and after they leased it to H. for fourescore yeares rendring the ancient Rent and after surrendred their Colledge Resolved that the lease to H. was voyd the Coppi-hold for life continuing by the Statute of 31. H. 8. For Coppihold is an estate for life and the Statute saith of which any estate or interest for life c. at the making of such grant had continuance reade the Booke at large where you have admirable rules for true interpretation of all Statutes Resolved when a Parliament alters the service tenure interest of the land c. in prejudice of the Lord custome or tenant the generall words shall not extend to Coppi-holds as the Statute of W. 2. de donis conditionalibus doth not extend to them for if the Statute should alter the estate this should also alter the tenure for the donee ought to hold of the donor and to doe such services without speciall reservation as his donor did to the Lord and the intent of the act was not to extend to such base estates which were taken then but tenants at will and the Statute saith Voluntas donatoris observetur in carta c. So that which shall be intailed ought to be such an hereditament which may be given by Charter and great part of the land within the Realme being granted by Coppy it would be inconvenient that Coppi-holds should be intailed yet neither Fine nor Recovery should barre them so that the owner cannot without making a forfeiture by assent of the Lord and a new grant dispose of it for payment of debts advancement of his wife or younger issues wherefore the Statute doth not extend to them by Manwood Ch' Baron which the Court agreed But 't was objected that the Custome and the Statute cooperating might make a taile as if by a custome a remainder had been limitted over and injoyed and plaints in nature of a Formedon in discender brought and the land recovered by it so neither the custome without the Statute nor the Statute without the custome can make a taile And Littleton saith that if a custome hath been that lands c. have been granted c. or in taile c. paulo post that a Formedon in discender lyes of all tenements which Writ was not at common law Manwood answered if the Statute doth not extend to them without question the custome cannot for before the Statute all estates of inheritance were fee simple and no custome can commence after the Statute for this being made 13. E. 1. is made within time of memory and Littleton is to be intended of a fee simple conditionall for he knew well that no custome could commence after the Statute of W. 2. as appeares in his booke 2. ca. 10. and 34. H. 6. and a Formedon in discender in speciall cases lay at the common Law And by the Court another Act made at the same time which gives an Elegit extends not to Coppiholds for the reason aforesaid but other Statutes made at the same time extend to them as ca ' 3. which gives a Cui in vita receite and ca ' 4. which gives to the particular tenant a Quod ei deforceat Resolved that though 't was not found that the said rents were the usuall rents accustomed to be reserved within 20. yeares before yet because 't was found that the accustomed rent was reserved and a custome goes to all times before it shall be so intended without shewing the contrary and judgement was enterd for the Queene The common Law is founded upon the perfection of reason and not according to any private and sudden conceite or opinion Borastons Case 29. of the Queene fo 19. B. Devised land for eight yeares and after to his executors to performe his will till H. his youngest Sonne come to the age of 21. yeares and when H. comes to 21. yeares then that he shall have to him and his heires H. dyed at the age of 9. yeares Objected that till H. attaines to 21. yeares the land descends to the heire and for that he never attained to 21. yeares this remaines in the heire and the intent appeares by the words that he should not have till he come to 21. yeares and this ought to precede the commencement of the remainder and if land were leased till H. comes to 21. yeares H. then being of 9. yeares 't is no absolute lease for 12. yeares for if H dye before 21. the lease shall be determined which the Court agreed 'T was also said that when the particular estate which should support the remainder may determine before the remainder can commence there the remainder doth not vest presently but depends in contingency If one make a Lease to A. for life and after the death of B. the remainder to another in Fee this remainder depends upon contingency for if A. dye before B. the remainder is voyd A Lease is made to A. for life the remainder to B. for life and if B. dye before A. the remainder to C. for life this is a good remainder upon contingency If A. survive B. which case is all one with
be divided For he had not the Mannor of H. for his Wife had it joyntly with him See many excellent Cases in the Booke at large adjudged upon this word Having in the Statutes the Initium of a Will ought to be full and perfect which is the writing and therefore if the devisor command one to write his Will and he devises white Acre to A. and his Heires and black Acre to B. and his Heires and dyes before the devise to B. is written yet the devise to A. is good But if he devises to A. c. upon condition and he writes the devise and the Testator dyes before the Writing of the condition t is voyd for in the one case the devises are severall and the one is perfect in the other Case t is maimed and imperfect for the intire devise was not fully put in writing so t was resolved in the Case at Barre that neither the commencement nor the end of the Will was full or perfect for at the time of writing of it and at the death of the devisor he had no power in respect of the joynt estate in H. to dispose all the Mannor of T. which amounts to the value of two parts of all Also upon the first Branch he ought to have a sole estate and here his Wife is joyntly seised with him and shee cannot disagree during coverture The Statute gives liberty to him for to devise two parts by will but this is to be intended of such Land which he might convey by act executed but here by reason of the undivided estate of the Wife he cannot dispose it but during coverture Also the third part of cleere yearly value is saved to the King and the intent of the Statute was that the King shall have the equall benefit at least for his third part as the devisee hath for two parts but here the devisee had two parts absolutely and the King but a possibility Viz. If the Wife would disagree which is at her pleasure and this Statute hath been constru'd that equality should be observed A man which held three Mannors of three Lords could not devise two of them but two parts of every one upon these words Cleere yearly value 't was said that of Inheritances which are not of any yearly value some are devisable some not as Bona et catalla felonum fugit or utlagat Fines amerciaments within such a Mannor or Towne these cannot be devised nor left to discend but a Leete Waife or Stray or other hereditament appendant or appurtenant to a Mannor passe by devise of the Mannor with th' appurtenances as incidents and the Statute had no intent for to dismember these things which by lawfull prescription had beene united But if a hundred with goods of Fellons Outlaws Fines Amerciaments returne of Writts and such other casuall hereditaments within the same hundred have beene accustomably demised for a yearely rent they may be devised within the purview of the said Act. 'T was said upon the words of the Statute which says that he may devise a rent common c. Out of two parts that a devise of a rent of the full value out of all is voyd but out of two parts 't is good And 't was observed that upon 32. H. 8. a devile of all his land had beene good for two parts as adjudged in Vntons Case for Land is severable but a rent is a thing intire and 34. H. 8. onely gives authority for to devise it The second branch which speakes of division cannot be satisfied for during his life he himselfe could not Set it out and after his death it survives to the Wife The third and fourth branch is not satisfied in this word immediatly for till disagreement without question the Mannor of H. survived to the Wife and if an Office had beene found before disagreement without doubt the Queene should have a third part of the Mannor of T. and the devise being voyd at the death of the devisor the third part lawfully vested in the Heire by discent it cannot be made good and devested by a subsequent disagreement Littleton discent to the Heire of Tenant by the courtesy of a disseissoresse doth not take away entry for the Heire comes not in immediatly 't was agreed if a man devises two acres holden by Knights service and a reversion upon a Lease for life discends to the heire this is no immediate discent within the Statute but the third part of the two ought to discend see many excellent Cases of devises adjudged upon the Statute Another good Case of relations Jennings and Braggs Case a disseisee makes an Indenture purporting a Lease for yeares and delivers it to a stranger out of the Land as an Escroule and commands him for to enter and deliver this as his deed to the Lessee who doth it and adjudged a good Lease and this diversity agreed First When the person at the first delivery hath not ability to make the contract and before the second delivery hath 't is voyd as an Infant and a Fème covert otherwise when at first delivery the person hath ability but cannot perfect it till an impediment removed which is done before the second delivery there 't is good as at Barre Resolved secondly that to some intent the second delivery shall have relation to the former by fiction of Law Vt res magis valeat quam pereat as if a Feme sole deliver a Lease as an escroule and after takes Husband or dyes yet by the second delivery 't is a good deed Ab initio and to some intent Vt res magis valeat c. it shall not relate yet in truth the second delivery hath all its force by the first and is but an execution and consummation of the former as at Barre for if it should relate to the first delivery then it would avoyd the lease for it should be made by one who was out of possession fictio legis inique operatur alicui damnum vel injuriam Thirdly 't was resolved that as to collaterall acts that there shall be no relation Omninò as if the Obligee release before the second delivery such release is voyd Ratcliffes case 34. of the Queene fo 37. A. Feme sole devises Socage land to the sonne of her daughter in taile the remainder to two Sisters of the devisee and to the heires of their two bodies by equall portions to be divided the remainder in fee to the Mother of the daughters and dyes the sonne dyes without issue Martha one of the daughters dwelling in her Mothers house daughter of the devisor within the age of 16. and above 14. departed at the second houre in the night with the consent of the husband of her Mother in whose house she was 8. miles and there married E. R. the issue was whether E.R. the Mother had the custody of the said M. at the time of the contract and marriage aforesaid for if she had then the
the Donor was in possession and used them and fraud is alwayes apparelled with trust and trust is the cover of fraud Sixthly it was contained in the deed that it was honesty truely and bona fide Et clausulae inconsuetae semper juducunt suspitionem and it was resolved although it was a due debt to Twyne and a good consideration of the deed yet it was not within the proviso of the said Act of 13. Eliz. By which it is provided that the said Act doth not extend to any estate or interest in Lands c. goods and chattells made upon good consideration and Bona fide for although it be upon good and true consideration yet it is not Bona fide for no deed shall be deemed to be made Bona fide within the said proviso that is accompanied with any trust for the proviso saith upon good consideration and Bona fide so as good consideration doth not serve if it be not also Bona fide Therefore good Reader if any deed be made to thee in satisfaction of any debt by one that is indebted unto others also First let it be in publick manner before Neighbours Secondly valued-by good men to a true value Thirdly take them out of the possession of the Donor presently for continuance of possession in the Donor is a marke of trust There are two considerations Viz. Consideration of blood or nature and valuable consideration And if one that is indebted to five severall persons every one 20. l. in consideration of naturall affection doth give all his goods unto his Sonne or Cosen The intention of the Statute was that the consideration in this case should be valuable for equity requires that this deed that defeates others shall be made of as high a consideration as the things are that are so defeated thereby for it is to be presumed that the Father if he had not beene indebted unto others would not dispossesse himselfe of all his goods and subject himselfe to his Cradle And therefore it shall be intended that it was to defeate his Creditors And if a consideration of nature or blood should be a good consideration within this proviso the Statute would serve for little or nothing and no creditor should be sure of his Debt A feoffment made solely in consideration of nature or blood shall not take away the use raysed upon valuable consideration but it shall take away a use raised in consideration of nature for both considerations are in Equali jure and of the same nature Many men marvaile the reason that so many acts and Statutes are dayly made this Verse answereth Queritur ut crèscunt tot magna volumina legis In promptu causa crescit in orbe dolus And because fraud abounds in these dayes more then in former times it was resolved that all Statutes made against fraud shall be liberally expounded for to suppresse the fraud and according to this see severall resolutions in the Booke at large It was resolved that no purchasor may avoyd a precedent conveyance made by fraud but he that is a purchasor for money or other valuable consideration paid for consideration of blood is a good consideration but not such a consideration as is intended by the Statute 27. El. ca 4. for valuable consideration is onely good consideration by the same act Anderson chiefe Justice of the common banck said That a man who is of small capacity and not able to governe his Lands that discends unto him and being disposed to ryot and disorder by the mediation of his friends by open Act conveyes his Lands to them upon trust and confidence that he shall take the profits for his maintainance and that he shall have no power to wast or consume them And after he being seduced by deceitfull and covetous persons bargained for small summes his Lands of great value this bargaine although it were for money was holden to be out of this Statute for this act was made against all fraud and deceit and shall not ayd any purchasor that commeth not to the Lands for good considerations lawfully without fraud or deceit And in this case Twyne was convicted of fraud and he and all the others of a ryot Resolutions P. 44. of the Queene upon the Statutes of Fines fo 84. A. Tenant for life the remainder to B. in taile the remainder to B. and his heires B. levies a Fine hath issue and dyes before all the Proclamations passed the issue then beyond the Sea the Proclamations are made the issue retournes and upon the land claimes the remainder Resolved that the estate which passed was not determined by the death of tenant in taile so if tenant in taile of a rent Advowson Tythes Common c. grants by Deed and dyes for if the issue brings a Formedon for the rent he makes the grant voidable if he distraines or claimes it upon the land he by this determines his election And there is no diversity betwixt tenant in taile of a rent c. and tenant in taile of a reversion or a remainder upon an estate for life though in the first case the issue may have a Formedon presently after the death of tenant in taile Holden by Popham and divers other Justices that the Statute of 32. H. 8. hath inforced the case that the estate which passes by the Fine of tenant in taile shall not be determined by his death for by this 't is provided that Fines levied of any lands c. intailed immediatly after the Fine ingrossed and Proclamations made shall be a barre if the Fine cannot be a barre without continuance the Statute hath provided that the estate shall continue for it provides for all necessary incidents to the perfection and consummation of it Every Fine shall be intended with Proclamations for 't is most beneficiall for the conusee and all Fines being the generall assurance of land are levied according Resolved that though by the death of tenant in taile a right of the estate taile descends to the issue for that the tenant in taile dyed before all the Proclamations passed yet when they are passed without claime this right is barred by the Statute of 32. H. 8. Resolved by all the Judges and Barons but three that the issue in this case being heire and privy cannot by any claime save the right of the taile which is descended to him but that after the Proclamations he shall be barred for 't is provided that every Fine after the ingrossing of it and Proclamation had and made shall be a finall end and conclude as well privies as strangers And if no saving had been all strangers had been barred also and all the exceptions extend onely to Strangers but the issue is privy To the objection if by the equity of the Statutes the issue cannot claime c. to what purpose are the Proclamations with such solemnities Answered 32. H. 8. being an Act of explanaiton of 4. H. 7. as to the Fine by tenant in taile shall
not be taken by any strained construction against the letter for then 't is requisite to have a new Act of explanation upon the explanation sic in infinitum By 4. H. 7. every one hath liberty to pursue a Fine according to the said Act viz. with proclamations c. or without as at common Law and therefore the Act of 32. H. 8. of necessitie prescribes that Proclamations shall be made according to 4. H. 7. to distinguish it from a Fine at common Law and not to inable the issue for to make claime for this should be against the expresse intent of the Act in the preamble and purview Also it should be very inconvenient if when such Fine is levied for a valuable consideration advancement of his issues or payment of his debts and he dyes before Proclamations that all should be avoyded by the claime of the heire when the conusee could not have better assurance by Recovery for that he was not tenant to the Praecipe See the Booke at large in what case the issue in taile may averre seisin in a Stranger quod partes Finis nihil habuerunt what not Objected 1. 't is provided by the Statute de donis c. that as to the issue Finis ipso jure sit nullus 2. That the Statute of 27. E. 1. extends not to the heires in taile as 8. H. 4. is for the issue is not bound by any Record which inures by way of Estoppell 3. 27. E. 1. speakes De finibus ritè levatis and when there wants seisin which is the essence of a Fine 't is not ritè levatus 46. E. 3. that 't is a good plea. Answered the Statute de donis c. was made 13. E. 1. and the Statute of Fines 27. in which the issue is not excepted therefore he is bound and according there is a good opinion 8. H. 4. To the second though the issue was not barred of his right before 4. H. 7. yet he was estopped to say Quod partes Finis nihil habuerunt To the third Finis ritè levatus is intended in due forme of Law which it may be though it be onely by way of conclusion for the same Act ousts the parties from such averment and 46. E. 3. is to be intended of a collaterall auncestor from whom the heire doth not claime the Land and then the averment is good In Conisbies case 't was resolved upon a Fine levied to tenant in taile in remainder by tenant for life and a grant and render of a rent that this was not within the Statutes of 4. H. 7. or 32. H. 8. for the Fine was not of the land it selfe which was intailed but of the rent newly created out of the land And in the Lord Zouches case 't was resolved that 4. H. 7. and 32. H. 8. doe extend to Fines levied by conclusion and shall binde though partes c. nihil habuerunt as if tenant in taile makes a Feoffement or be disseised and levies a Fine for the Statute says All Fines of any lands c. in any wise intailed to the person so levying or to any of his auncestors and in 4. H. 7. the exception Quod partes c. is saved to all persons not party nor privy to the said Fine and the issue in taile is privy for he claimes as heire by discent and if such Fine shall barre where the tenant in taile had nothing though the issue enter after the death of the auncestor before all the Proclamations passe a fortiori here when tenant in taile at the time was seised of an estate though 't were in reversion See Archers case where a Fine shall barre the issue where the Father had onely a possibility at the time of the Fine levied Purslowes case 32. of the Queene tenant in taile levies a Fine Term. P. T. and dyed in August next his daughter being heire to the taile and her husband brought a Formedon and pending the plea the Proclamations passed and 't was agreed by the Court that the tenant shall plead the Fine and the Proclamations which passed pending the Writ shall barre the demandant yet there the issue did all that might be done for the conveyance is the Fine and the Proclamations are but a short repetition of the Fine out of this foure things are to be observed 1. Though after the Fine a right descends to the issue yet after Proclamations the right is barred 2. Though he pursues a Formedon yet after Proclamations he is barred ergo in the principall case he is barred notwithstanding his entry or claime in pays 3. When tenant in taile levies a Fine and dyes before Proclamations the issue is not within any of the savings for then the bringing of a Formedon should avoyd the barre 4. The Proclamations serve for no purpose but to distinguish the Fine from a Fine at the common Law Trin. 4. of the Queene Bendlowes tenant in taile disseised the discontinuee and levied a Fine and tooke an estate by render the discontinuee enters and claimes before all the proclamations passed and avoides the estate after the proclamations passe tenant in taile continues his possession and dyes within the yeare after the entry and claime Resolved that the issue was not Remitted but barred by 32. H. 8. Though the estate was avoyded before all the Proclamations passed Resolved though the issue be beyond the Sea yet because he is privy c. he is bound as if he he were within age covert or non compos Which was agreed by all the Justices Ergo the claime of the issue is not materiall and if Infancy c. should avoyde the Fine no man should be assured of land conveyed THE FOURTH BOOK Vernons Case 14. 15. of the Queene fo 1. IN Dower the tenant shews that the husband made a Feoffement of other Land to the use of himselfe for life and after to the use of the demandant for life c. and averres that the said estate was for her Joynture c. and that the demandant hath entered c. and agreed to the estate the demandant shews that the estate was upon condition for to performe the will of the husband and that divers things were to be performed in it judgement if the tenant shall be admitted c. Resolved that at Common Law a right or title to a Freehold cannot be barred by acceptance of a collaterall satisfaction or recompence As if a disseisor of the Mannor of P. gives to the disseisee the Mannor of S. in satisfaction of all his right c. And therefore 't is said in our Bookes that an accord with satisfaction is a good plea in a personall action where damages are to be recovered not in a reall and therefore no barre in Dower but Dower ad ostium Ecclesiae or ex assensu patris concludes her if she enters after c. for the Law allowes them c. to be Dowers in Law Before 27. most lands were in use
and because wives were not dowable of the use estates were made by the Feoffees to the husband and his wife before or after the marriage for life c. for a competent provision for the wife then 27. transferred the possession to the use and if further provision had not been the wives should have their dowers and joyntures also and therefore those branches were made in the same Statute of 27. Resolved that the Feoffement to the use of himselfe for life the remainder to his wife for life for the joynture of the wife is within 27. for though that five estates onely are expressed 1. To the husband and wife and the heires of the husband 2. c. to the heires of their two bodies 3. Of the body of one of them 4. For their lives 5. To the husband and wife for life of the wife yet many other estates are within the Act for these are put for example not to exclude others But resolved that no estate is a joynture except it takes beginning presently after the death of the husband for so are all the examples and therefore to himselfe for life the remainder to B. for life the remainder to his wife c. is not within the Statute c. And therefore though the wife enter and takes the profits she shall have Dower An estate to one and his wife and the heires males of their two bodies adjudged a good joynture yet none of the five estates mentioned an estate made to a woman for life before marriage adjudged a good joynture Resolved though the estate here were upon condition and though Dower in place of which the joynture comes were absolute yet because an estate for life upon condition is an estate for life 't is within the words and the intent of the Act if the wife accept it c. Resolved that a wife cannot waive a joynture made before the coverture as she may a joynture made after and this by the Proviso if any woman hath lands c. assured after marriage for her life c. after death of the husband she hath liberty to refuse c. and therefore the intent of the Statute was that she should not refuse a joynture made before and land conveyed for part of her joynture or in satisfaction of part of her Dower is no barre of any part for the incertainty for the Statute says for the joynture of the wifes and not for part of the joynture Resolved that though the estate of the wife be upon an expresse condition for to performe the will which imports a consideration of making the estate yet it may be averred for joynture for the one consideration well stands with the other and though it be not expressed in the Deed yet it may be averred and the case is the stronger because the averment is given by the words of the Act. And a Fee simple to the wife in satisfaction of her Dower is a joynture within the equity of 27. for the reasons aforesaid as also because 't is within the expresse words for terme of life or otherwise for all estates as beneficiall or more are within by this word otherwise in joynture after judgement was given against the demandant A devise to a wife for life in taile c. for her joynture is a good joynture within 27. as 't was resolved in Leake and Randalls case Otherwise where a man devises to his wife for life c. generally this cannot be averred to be for joynture and therefore no barre of Dower 1. Because a devise imports a consideration in it selfe and shall be taken as a benevolence 2. All the will for land by 32. 34. H. 8. ought to be in writing and no averrement ought to be taken out of the will which cannot be collected by the words within an estate before marriage is within the equity of the Statute so an estate by devise which takes effect after the marriage dissolved is within 27. Bevills Case 27. 28. of the Queene fo 8. TEnant by Homage Fealty and Escuage and suite to Court twice a yeare the Lord was seised of the Fealty onely by the hands of the tenant Resolved that seisin of Fealty was a seisin of all the said services for when the tenant doth fealty he takes a corporall oath that he shall be faithfull and true to the Lord and shall beare him faith of the tenements which he claimes to hold of him and that he will lawfully doe the customes and services c. And though Homage be more honourable and the most humble service that a Freeholder can doe to his Lord yet Fealty is the more sacred service for this is done upon oath not the other And the words shall be faithfull and true are also parcell of Homage and Seisin of any part of any service is a Seisin of the whole and the Law for this reason so respects these services that no distresse for them shall be excessive and though distresse be so often that the tenant cannot manure his land he shall not have an Assise as for rent or other profits Resolved that seisin of a superior service is a seisin of all inferior services incident to it as a seisin of escuage of homage and fealty homage of fealty rent of fealty where the Seigniory is by fealty and rent Resolved that doing of homage is a seisin of all services inferior and superior because he takes upon himselfe to doe all services Resolved that seisin of rent or suite or of other annuall service is seisin of escuage homage fealty ward releife heriot service service for to cover the hall of the chiefe house of the Mannor for to impale the Parke of the Lord or such casuall services which perchance will not fall in sixty yeares but seisin of one annuall service is not seisin of another annuall service as rent of suite nor of worke dayes for 't is the folly of the Lord that he attained not seisin and it should be mischeivous to the tenant for perhaps in ancient time the worke dayes are discharged which now cannot be shewne Note Reader all this is to be intended of a seisin in Law for seisin of fealty here is no actuall seisin of homage nor of suite nor fealty of rent but seisin of any part of a service is an actuall seisin of all to have an Assise And as to make a vowry seisin in Law suffices but for an Assise actuall seisin is requisite so in a Writ of right of Land See the Booke at large and there where ancient seisin to an estate altered or changed from one person to another shall be sufficient where not Resolved that seisin in Law was sufficient to make an avowry within the letter and the intent of the Statute of 32. H. 8. for the intent was to limit a time within which seisin ought to be had not to exclude any seisin which was a lawfull seisin by the common Law which appeares by the Preamble Also the
former acts of limitation as W. 1. ca ' 38. W. 2. ca ' 2. doe not exclude a seisin sufficient at common Law And the Statute saith Actuall possession or seisin which Seisin is eyther actuall or in Law Resolved that the act doth not extend to such a rent or service which by common possibility cannot happen within sixty yeares as homage fealty for the tenant may live beyond or to cover the Hall or to goe in Warre so of a Formedon in Discender for tenant in taile may live sixty yeares after discontinuance and though In facto he dyes and the issue doth not pursue his Formedon yet he may have it at any time and the seisin of the donee was not traversable so of homage and other casuall services though the Lord might have had seisin So if the Lord release to the tenant so long as I. S. hath heires of his body though sixty yeares passe yet he may distraine for Impotentia excusat legem and there may be a tenure by homage c. and yet never done as if the Land be conveyed to a Maior c. or other Corporation aggregate of many they hold by fealty yet they cannot doe it A Writ of Escheate Cessavit Rescous are not within the Act for in them the seisin is not traversable but the tenure and in the Escheate and Cessavit they demand the Land and can lay no seisin and the Act extends onely to those Writs where the demandant or his Ancestors might have had seisin So Note Land shall escheate though there be no seisin of the services within the time of limitation for the Seigniory remaines though seisin wants so if the tenant cesse and the Land be not overt and sufficient to his distresse the Lord shall have a Cessavit though he wants seisin of the services Resolved if nothing be arreare and the Lord distraines the tenant may make rescous or if he be so often distrained that he cannot manure his Land he may have an Assise De souent distres but for such tortious distresse where nothing is arreare the tenant shall not have Trespasse Vi armis against the Lord for this is prohibited by the Statute of Marleb ca ' 3. See the Booke at large in what case an incroachment of more rent by the Lord then he ought to have shall be avoyded in what not Resolved that though a man hath beene out of possession of Land by sixty yeares yet if his entry be not taken away he may enter and bring any possessory action of his owne possession for the first clause doth not barre any right but prohibits that none shall have a Writ of right c. of the possession of his ancestors c. but onely of a seisin within sixty yeares the first and second clause extend onely to seisin auncestrell the third to an action of his owne possession not to entry the fourth to avowry the fifth to a Formedon c. Note Reader out of this that when the tenant hath done homage and fealty which the Lord may inforce him to doe this shall be a seisin of all other services as to avowry though the Lord nor those by whom he claimes had seisin within sixty yeares Actions of Slaunder The Lord Cromwells Case 20º of the Queene fo 12. THe Lord Cromwell brought an Action De Scandalis magnatum against D. Viccar Tam pro domina regina quam pro seipso upon the Statute of 2. R. 2. ca ' 5. The Defendant said to the Plaintiffe It is no marvell though you like not of me for you like of those that maintaine sedition against the Queenes proceedings the Defendant justifies specially that he being Viccar of N. the Plaintiffe procured I. T. and I. H. for to preach there who in their Sermons inveyed against the Booke of common prayer and affirmed it to be superstitious upon which the Viccar inhibited them for they had not license nor authority to preach yet they proceeded by the incouragement of the Plaintiffe the Plaintiffe said to the Defendant Thou art a false Varlet I like not of thee to whom the Defendant said It is no marvaile though you like not of me for you like of those innuendo the aforesaid I. T. and I. H. that maintaine sedition Innuendo seditiosam illam doctrinam against the Queenes proceedings Resolved in this case that the Statute aforesaid concerning the King the Judges Ex officio ought to take notice of it as they ought of all Statutes that concerne him Resolved that the justification is good for in case of slaunder the sence of the words is to be taken which may appeare by the occasion of speech Sensus verborum ex causa dicendi accipiendus est et sermones semper accipiendi sunt secundum subjectam materiam And here the sence of the words appeares and his meaning in speaking them and that he did not intend any publique or violent sedition as the word of it selfe imports and God defend that the words of one by a strict and grammaticall construction should be taken contrary to the manifest intent as in an Action for calling the Plaintiffe murderer 't is a good justification that the Plaintiffe confessing that he had killed diverse Haires with Engines the Defendant said Thou art a Murderer and the Defendant shall not be put to a generall issue when he confesses the words and shewes that they are not actionable as in maintainance the Defendant may justifie lawfull mainteinance whereupon the Plaintiffe replyed that the Defendant dixit c. Verba praedict de iniuria sua propria absque tali causa upon this they were at issue and after agreed Cutler and Dixons Case 27. and 28. of the Queene fo 14. IF one exhibite certaine Articles to a Justice of peace against one declaring divers great abuses and misdemeanours c. to the intent to bind him to the good behaviour In this case the party accused shall not have any action upon the case for it is in pursuite of ordinary justice and if such actions were permitted none would complayne for feare of infinite vexation Sir Richard Buckley and Woods Case 33. and 34. of the Queene fo 14. WOod exhibited a Bill in the Starrechamber against Sir R. B. and charged him with divers matters examinable there and with other matters not determinable there as that he was a maintainer of Pyrates and Murtherers and a procurer of Pyracies upon which Sir R. B. brought this action c. Resolved that no action lyes for matter examinable there though 't was meerely false because that 't was in course of justice Resolved that an action lyes for these words not examinable there for 't is not done in course of Justice and great inconvenience would follow if matters may be inserted in Bills exhibited in so high and honourable a Court in Slaunder of the parties and they cannot answer there for their purgation nor have their action for purging themselves of the crimes and recover damages for
binde the lessor otherwise of admittances upon surrenders or descents for he was tenant at sufferance who hath no lawfull interest and a Writ of entry ad terminum qui praeteriit lyes against him and so he is a deforceor Murrell and Smiths case 33. and 34. of the Queene fo 24. THe Queene grants a Copyhold in fee and after grants the inheritance of the Copyhold to a stranger the Copyholder devises to M. and after surrenders to the use of his will Resolved that custome hath so established the estate of a Copyholder that by severance of the inheritance of the Copyhold from the Mannor the Copyhold is not destroyed for being the Lord himselfe could not ouste the Copiholder no more can another claiming in by him Objected that every Copyhold ought to be parcell of the Mannor and to be demised or demisable time out of memory Resolved that because once this had both the incidents aforesaid and its perfection the severance made by the Lord shall not destroy it Resolved that notwithstanding the surrender and devise the Copyhold descended to the heire for after the severance of the inheritance from the Mannor the surrender was utterly voyd for the land was not parcell of the Mannor at the time and the devise onely cannot transferre such a customary estate but it ought to be by surrender into the hands of the Lord c. Resolved that after severance the Copyholder shall pay his rent to the Feoffee and shall pay and do other services which are due without admittance or holding of a Court as to plough the demeanes of the Lord Heriot c. but suite of Court and Fine upon alienation or admittance are gone for now the land cannot be aliened for though the Copyholder hath some benefit by the severance as appeares before so he hath great prejudice for now he cannot surrender or alien his estate nor the Feoffee cannot make an admittance for he is not dominus pro tempore Resolved that such forfeitures remaine as were before the severance as Feoffement lease wast denier of rent So if the land were of the nature of Borough English or Gavelkind and other customes which run with the land remaine And 't was said that such Copyholder hath no other meanes to alien but by Decree in Chancery against him and his heires but by this the interest of the land is not bound but the person onely Kite and Queintons case 31. of the Queene fo 25. COpyholder in fee surrenders out of Court by the custome to the hands of certaine Copyhold tenants to the use of another and his heires upon certaine condition at the next Court the surrender was presented but the condition omitted he to whose use c. dyes the Lord admits his heire he that made the surrender releases to the heire being in possession and after enters Resolved that the presentment of the surrender was voyde for that the condition was omitted for the surrender that the Copiholder made was not presented but if the surrender the condition had been presented and the Steward in entring of it omits the condition upon sufficient proofe of it the surrender shall not be avoyded but the roll amended for the roll doth not conclude the party for to plead or give in evidence the truth of the matter Resolved if a Copyholder be ousted by wrong a release by him to the disseisor doth not transferre his right because he hath not any customary estate upon which the release of the customary right may inure and this should be prejudiciall to the Lord for by this he shall lose his Fine and services but a release made to him which is admitted by the Lord and in possession is good and a release of a customary right may inure to him and the Lord not prejudiced and the release shall inure by way of extinguishment And Littleton speaks of an alienation by surrender onely which ought to be into the hands of the Lord but a release cannot be done to the Lord and Littleton says He which claimes a Copihold by surrender hath no other evidence but he which claimes an extinguishment of a right may have it by release by Deed and 't is no perill to purchasors for if the Copiholder in possession sels it he will shew the release and he which is out of possession cannot sell till he hath regained the possession caveat emptor By Wray if he which hath a pretensed title c. to a Copihold bargaines c. this is within 32. H. 8. for the Statute says any right or title and great part of the land within the Realme is in Copy and therefore the intention was to include them to avoyde maintenance and champerty Melwich and Luters case 30. of the Queene fo 26. REsolved that the lessee of a copiholder for a yeare shall maintaine an Ej ' Firmae for his terme being warranted by Law by force of the generall custome of the Realme 't is reason that he should have remedy by Ej ' Firmae And this is a speedy course against a Stranger Resolved that the Copiholds are not destroyed by severance of the inheritance of them from the Mannor but remaine in force So Murrels case before adjudged Resolved that when the Lord of a Mannor having many ancient Copiholds in a Towne grants the inheritance of all the Copiholds the grantee may hold a Court for the customary tenants and accept surrenders and make admittances and grants for every Mannor which consists of Freeholders and Copiholders comprehends in effect two severall Courts the one the Court Baron for Freeholders and in this the Suitors viz. the Freeholders are Judges and the other Court for the Copiholders and in this the Steward or the Lord himselfe is Judge and though this is not a Mannor in Law because it wants Freeholders yet the grantee may hold such Court as aforesaid for Copiholders onely as the grantor himselfe might So if all the Freeholds escheate or the Lord releases the tenure and services yet he may hold a customary Court for the Copiholds Note Reader though the Lord by his own act cannot make of one and the same Mannor at common Law divers severall Mannors consisting of Demeanes and Freeholders yet he may make a customary Mannor of Copiholders Resolved that the Lord himselfe may make a grant or admittance of a Copiholder out of the Mannor at what place he pleases but if the Steward at any Court holden out of the Mannor shall make grants or admittances they are voyd Neales case 37. of the Queene fo 26. ADjudged that where the Lord of a Mannor demises all his lands granted by Copy for two thousand yeares that the lessee may hold Courts for Copiholders as Melwiches case is before and 't was said so to be resolved in C. Hattons case Note Reader a good diversity where the number of the Copiholders may support the custome and a singular case of a Copiholder as in Murrels case before in which case the
a grant but the common Law requires that he be so instructed that he be not deceived there a Non obstante supplies it and makes the grant good As the King having made a lease for life or yeares grants the land Non obstante that it be in lease for life yeares c. or if he grants the land and further grants the reversion of it depending upon an estate for life yeares c. 't is good See the booke at large Resolved when the words are not sufficient ex vi termini to passe the thing granted but the grant is voyd there a Non obstante will not serve as in the principall case and the Pattents were not holpen by 18. of the Queene ca ' 2. for Pattents of concealement are expressely excepted out of the Act. Terringhams case 27. El. in banco regis fo 36. REsolved that prescription doth not make a thing appendant except the thing which is appendant agree in quality and nature to the thing unto which it should be appendant as a thing incorporate as an advowson to a thing corporate as a Mannor or as a thing corporate as Lands to a thing incorporate as an office these may be appendant but every thing incorporate may not be appendant to a thing corporate as common of turbary may not be appendant to Land but to a Messuage or house as it is holden 5. ass 9. for the thing which is appendant ought to accord with the nature and quality of the thing to which it is appendant and turves ought to be expended in a Messuage The commencement of common appendant by the ancient Law was in this manner viz. When a Lord of a Mannor infeoffed another of arrable Lands to hould of him in Soccage id est per servicium socae the Feoffee ad maintenand ' servicium socae had common in the wasts of the Lord for his necessary beasts that did plowe and ayre his Lands and this common is of common right and commenceth by operation of the Law and in favour of tillage and therefore it needeth not to prescribe in that for so it is houlden 4. H. 6. 22. H. 6. as one ought if it were against common right But it is onely appendant to the ancient arrable Lands and onely for oxen horses kyne and sheepe c. And because it is against the nature of common appendant to be appendant to meadowe or pasture and because that here the prescription was to have common time out of minde to a house meadow and pasture as well as to arrable by which it appeares to the Court that there hath been a house meadow and pasture time out of minde 't was resolved that this common was appurtenant not appendant But if of latter times men have builded upon some part of such arrable Lands and some part thereof is imployed to meadow and pasture and this for maintenance of tillage the originall cause of common the common remaines appendant and it shall be intended in respect of the continuall usage of the common for beasts leavant and couchant upon such lands that at the beginning all was arrable But in pleading he ought to prescribe that the same is appendant to Land for though terra dicitur a terrendo quia vomere territur yet terra includes all and is arrable though converted to meadow c. For it may be plowed A man may prescribe to have common appendant to his Mannor for all the demeanes shall be intended arrable at least in construction of Law redd ' singula singulis it shall be appendant to such demeanes which are ancient arrable c. And when a man claimes common appendant to his Mannor no incongruity appeares of his own shewing as here So common may be appendant to a Carve of land which may containe pasture meadow and wood but it shall be applyed to that which agrees with the nature of the common Resolved that common appendant may be apportioned because 't is of common right for if a commoner purchase part of the Lands in which he hath common yet the common shall be apportioned as well as if the Lord purchase parcell of the tenancy the rent shall be apportioned And if A. a commoner enfeoffe B. of parcell of his ancient Lands the common shall be apportioned and B. shall have common pro rata And 't was agreed that such common which is admeasurable remaines after severance of part of the land to which c. But here for that the common was appurtenant 't was adjudged that by the purchase all was extinct for 't was against common right for by the act of the parties it cannot be in esse for part and extinct for part 'T was said that pertinens is the Latine word as well for appurtenant as appendant and therefore subjecta materia and the circumstances ought to direct the Court to adjudge the common appurtenant or appendant Resolved that unity of possession of the intire land to which c and of the intire land in which c. extinguishes the common appendant By Wray chiefe Justice common for vicinage is not appendant but for that it ought to be by prescription 't is resembled to common appendant but common appurtenant or in grosse may commence at this day by grant or prescription and by him the one may inclose common for vicinage against the other as hath been adjudged in Smith and Redmans case Resolved that a man may chase out beasts that doe him trespasse with a small dog and shall not be compelled to distraine them damage feasant Cases of Appeales and Indictments Brookes case 28. of the Queene fo 39. REsolved that in an appeale of Burglary 't was an insufficient count that the defendant domum c. felâ—… burgaliter fregit for it ought to be burglaâ—… or burgulariter which is vox artis as murdravit â—…it which cannot be otherwise expressed Resolved if the count had been sufficient he being â—…icted once should not be againe impeached but here he was discharged upon the insufficient count By Wray Chiefe Justice if upon accident a man and all his family are out of the house and one in the interim breakes the house and commits felony 't is burglary for the indictment is domum mansionalem fregit and so 't was resolved 38. of the Queene where a man hath two mansion houses servants in both and in the night when the servants are out c. the house is broken 't is burglary Wetherell and Darlys case 35. of the Queene fo 40. IN an appeale of murder the Defendant was found guilty of homicide and had his Clergy after indicted and arraigned for murther pleaded this conviction Resolved that 't is a good barre at common Law and restrained by no Statute the reason is because the life of a man shall not be brought twice in question for the same offence Youngs case 38. of the Queene fo 40. AN Indictment that dedit unam plagam mortalem circiter pectus
is no difference in Law whither it be fixed with great Nailes or little Nailes or Screws or Irons put through the Walls for if it be fixed by any wayes or meanes to the house or Posts or Walls thereof the Lessee may not remove it but he is punishable in an action of wast For it is parcell of the house and by Lease or grant of the house in the same Mannor as Sealing or Plaistering it shall passe as parcell thereof Fulwoods Case 33. of the Queene fo 64. C. Acknowledged a recognizance of 250. li. to the Chamberlaine of London and his Successors after acknowledges a Statute of 200. li. before the Recorder of London and Major of the Staple to A. after A. sues Execution by Liberate but it doth not appeare that it was ever returned after the Successours of the Chamberlaine sue Execution by precept to the Serjeant of the Mase in nature of an Elegit and hath a moyty C. dyes his Wife recovers Dower and had this house assigned for her third part she dyes the Chamberlaine assignes to Fulwood after A. assignes also to F. after the Heire of C. demises to B. c. Resolved that the Successors of the Chamberlain-shall have this recognizance though a body solee for that the Corporation was by custome to diverse purposes for Orphanage for the recognizance was acknowledged for Orphanage money and the same custome inables the Successors to take such an Obligation c. otherwise of a Bishop Parson c. and that the Execution by the Serjeant of the Mase was good notwithstanding the Statute of W. 2. ca ' 18. which saith Vic' liberet ei medietatem c. By reasonable extent to wit by inquisition of honest men and the Sheriffe is sworne and the Serjeant is not sworne to take the Jury c. For the Statute extends to every other immediate officer to any Court of the King of record c. Resolved that execution of the Elegit was good enough without suing a Scire facias against A. being in by matter of Record bu 't was said if the Sheriffe had returned the former execution he ought to have a Scire facias by the Court if the Sheriffe makes execution 't is good Resolved that the Verdict was good which finds that C. acknowledged a recognizance before the Maior though not said secundum formam Statuti nor per scriptum suum obligatorium for being the trover of lay People it shall be intended according to the Statute Resolved that the Conusee cannot have aide of the Statute of 32. H. 8. ca ' 5. for which see the Booke at large Resolved that if a man be bound in two Statutes and the latter Statute be first extended and delivered in execution for a longer time and a greater sum then the first was yet when the first Statute is satisfied and his interest lawfully determined the second Conusee shall have the Land againe by force of the first extent It was resolved Per tot Cur. that the execution of a liberate is good although the Writ be not returned and so of a Capias ad satisfaciendum and an Habere fac ' sec ' seisinam and other writs of execution And that the Conusee shall hold the Land not onely untill he be satisfied for damages for detayning of the Debt and costs of Suite but also for his reasonable Labours and expences looke the words of the execution and being in by matter of record the conusor must bring his Scir fac but in Case of an elegit the Conusor after satisfaction may enter for there is no costs and damages but the meere Debt Hyndes Case in com Banco 33. Eliz. fo 70. WIlliam Hawe seised of certaine Lands by deed indented demised the same to Robert Gerrard for 16. yeares who assigned over to Elizabeth Hynd William Hawe afterwards by bargaine and sale in consideration of money due sould the reversion to one Libb and before the same was inrolled the said William Hawe leavyed a fine to Libb and his Heires c. and after the leavying of the fine the said Indenture of bargaine and sale was inroled within six Moneths according to the forme of the Statute and Elizabeth Hynd the Tenant did not atturne The question was Whither the Conusee of the fine after the said Indenture inrolled Shall be in by the fine and by the bargaine and sale for if he shall be adjudged to be in by the fine no action of wast lyeth for default of atturnement and if he shall be in by the Indenture inrolled then there needeth no atturnment And it was resolved Per tot Cur. that when Hawe by deed indented did bargaine and sell the reversion to Libb and his Heires and before the inrollment leavyed a fine to Libb and his Heires and after the Deed is inrolled within six moneths that the Conusee shall be in by the Fine and not by the Deed inrolled for the Fee simple passeth by the fine to the Conusee and his heires and after the inrollment of the deed may not divest and turne the estate out of himselfe which was absolutely established in him by the fine for when the common Law and the Statute Law concurre the common Law shall be preferred And it is true that the inrollment shall have relation to the delivery of the Deed. But that is onely to avoyd estates or charges made of the same thing by the bargainor to strangers after the delivery of the Deed and before the inrollment but not to divest any estate lawfully setled in the interim in the bargainee The Records are so high and sacred that they import in themselves inviolable verity which if any man dare to gainsay the Law doth attribute so great honor to them that they shal be tryedonely by themselves and not by the Countrey and if averrement against a Record should be permitted then the effect and validity of the record should be tryed by the Country which is against the rule of the Law Nullum iniquum est in jure presumendum Yet resolved in this Case that the Lessee shall be admitted to averre that the Deed was inrolled after the Fine and not before because it stands with the Record and doth not impugne any thing within the Record and great inconvenience would follow if such averrement should not be admitted Boroughes Case 38. Eliz. In Banco Regis fo 72. REsolved that the rent reserved upon a demise ought to be demanded if the Lessee will take advantage of a condition for non payment of the same and the demand to be made at the place limitted for the payment of the rent although there be no words of demand in the demise and although it be out of the Land demised but in the Kings Case it is otherwise Prerogativa Regis for there the rent upon a reentry reserved ought to be tendered and in such Case the Pattentee of the King shall demand the rent upon the Land Resolved if the Queene leases rendering
his consent and after the other two did alien without license and it was adjudged 28. Eliz. that in this case the condition being determined as to one person by the license of the Lessor it was determined in all for when the Lessee alieneth any part of the residue the Lessor may not enter into any part aliened with license and therefore the condition being determined in part is determined in all for the condition being entire may not be apportioned and 16. Eliz. Dyer 334. fuit deny per Popham Chiefe Justice Vide lit 80. b. 4. and 5. Ph. and M. Dyer 152. Bustards Case 1. Jac. fo 121. IN every lawfull exchange of Land this word Excambium imports in it selfe Tacite a condition and a warranty and the other a Voucher and recompence and all in respect of reciprocall consideration the one land being given in exchange for the other but that is a speciall warranty for upon the voucher he shall not recover other Lands in value but those onely which were given in Exchange and this warranty followes onely in privity for none may vouch by force thereof but the parties to the Exchange and their heires and no assignes If A give in Exchange three acres of Land to B. for other three acres and after one Acre is evicted from B. in this Case all the exchange is defeated and B. may enter into all his Lands Beverleys Case de non compos mentis in banco regis 1. Jac. fo 123. EVery act that a man De non compos mentis doth eyther concerning his Lands life or goods eyther done in Court of record or out of Court of record all acts that he doth in any Court of record eyther concerning his Lands or goods shall bind himselfe and all others for ever and those acts which he doth out of Court of record shall binde himselfe during life and in some Cases shall binde all others for ever so as the party himselfe shall not be admitted to stultifie himself or disable himself but an ideot a nativitate may not make Feoffment Gift Lease or Release but it may be avoyded during his Life by office at the Kings suite which shall have relation a tempore Nativitatis to avoyd all acts done by him and after his death the King shall deliver his Lands Rectis Haeredibus foure manner of men de non compos mentis 1. An ideot or foole naturally 2. One which was of good and perfect memory and by the visitation of God hath lost the same 3. Lunaticus qui gaudet lucidis intervallis who somtimes is of good and perfect memory and some other times Non compos mentis 4. He that is so by his owne act as a Drunkard All acts which a Lunatick during the time of his Lunacy doth and all acts which a mad man doth who once was of perfect memory and by the act of God hath lost his understanding are equivalent to the act done by an Ideot but the act which a man doth Qui Gaudet lucidis intervallis at such time as he is of good and perfect memory shall binde him and are good And a Drunkard who for the time of his Drunkenesse is Non compos mentis yet his drunkennesse shall not extenuate his act or offence but doth aggravate his offence and doth not derogate from the act which he doth during the time of his drunkennesse and that as well touching his Life Lands and goods as any other thing that concernes him The King shall have the custody of the Land goods Chattells c. of one non compos mentis to the use of him his Wife Children and Family a man non compos mentis shall not loose his life for felony or murder for no felony or murder can be committed without a felonious intent and purpose and he is deprived of reason understanding and intentions Dicta est fellonia quia fieri debet felleo animo furiosus non intelligit quid agit animo ratione caret non mulum distat a brutis as Bracton saith and stultus dicitur a stupore The End of the Fourth Booke THE FIFTH BOOK Claytons Case 37. Eliz. in Com. Banco fo 1. AN Indenture of demise dated 26. May 25. Eliz. to hold for three yeares from henceforth it was delivered at foure a clock in the afternoone of the twentieth of June after The Question was when the Lease should begin from henceforth shall be taken the day of the delivery inclusive idefi from the making or delivery Traditio loqui facit cartam this Lease must end the nineteenth of June in the third yeare after The day of the delivery is parcell of the tearme but a Die confeccionis or a Die datus the terme beginneth the day after the date from the date and from the day of the date is all one because that in judgement of Law the date includes all the day of the date c. Elmers Case 30. Eliz. Banco Regis fo 2. 1. REsolved that the Statute of 1. El. is a private act whereof the Court shall not take notice without pleading of it 2. Whereas the Bishop ousted his Lessee for yeares and made a Lease for three lives this is voidable by the successor for first the Statute giveth him power to make a Lease for twenty one yeares or three lives and therefore cannot make both 2. Lessee for lives shall have the rent reserved upon the Lease for yeares and shall not pay rent to the Bishop untill the terme determined and so hospitality will decay in the meane time and where 32. H. 8. ca ' 8. provided that the old Lease be surrendered before the making of a new illusory surrender upon condition is not within the act but judgement given against the Plaintiffe for not pleading of the said act of 1. Eliz. Jewells Case 30. Eliz. banco regis fo 3. LEase of a faire reservaing rent is not within the Statute of 1. Eliz. for although the rent be due by reason of the contract yet it is not incident to the reversion and 't is also without remedy by assise or distresse Lord Mountjoyes Case 31. 32. El. banco regis fol. 3. TEnant in tayle according to the Statute with power to make Leases c. reserving the ancient rent maketh a Lease of two distinct farmes reâ—erving the ancient rents in one summe out of both sthe farmes this is a new rent and not the accustomed rent and if he reserve a lesser rent during his life and after his death then the ancient rent the Lease is not good If Tenant in tayle be seised of three acres of Land every one of them of equall annuall value and all have beene demised for 3. shil per annum in this case he may not demise one of them for 12. d. per annum or two of them for 2. shil per annum and so Pro rata Justice Windams Case fo 31. 32. Eliza. Banco Regis in a Writ of Error fo 7
fine after delivery of the Indentures of the fine the fine is said to be ingrossed 3. The Conusor shall not assigne error in the render because it is to his advantage and none shall assigne Error except it be to his disadvantage Dormers Case 35. Eliz. Banco regis fo 40. A Common recovery is had in a Writ of Entry in the Post de uno annuali redditu sive pensione quatuor marcarum and of an advowson whereupon a Writ of Error is brought 1. Because every Praecipe ought to be certaine but here it is in the Disjunctive 2. A Writ of entry in the Post lyeth not of an advowson But judgement was affirmed and thereby 't was resolved 1. That a common recovery is not like to other recoveries for it may be averred to an use 2. It is by mutuall consent consensus tollit errorem 3. A Writ of entry in the Post lyeth of an advowson common c. to suffer a common recovery and not otherwise for no other assurance can be had to barre the remainders 2. The demand of the rent is good for one of two things is not demanded but one thing by two names for rent and pension are Synonima and the rather here because it is said to issue out of Land which a Pension properly cannot 3. Common recoveries are so usuall that the Court shall take notice that they are common recoveries Rowlands Case 35. Eliz. Banco regis fo 41. A Pannell of a Jury is annexed to the Venire facias without returne this is vicious and not remedied by 18. Eliz. cap. 14. for that remedieth insufficient returnes but not where no returne The Countesse of Rutlands Case 36. Eliz. fo 42. RObert Moore is returned upon the Venire facias but in the panell before the Justices of Nisi prius and in the Postea he was named Robert Mawre if it appeare that Moore is his right name and that it is he who was sworne it is good for by the common Law this was a discontinuance against all the Jurors and discontinuances are ayded by the Statute otherwise if he were misnamed in the Venire facias and had his right name in the Panell and Postea Codwells Case 36. Eliz. Banco regis fo 42. A Juror who gave verdict was misnam'd in the Venire facias and had his right name in the Distringas and Postea and for that the judgement was arrested Nicholls Case 38. Eliz. Banco regis fo 43. C. Brings Debt upon a single Bill against N. who pleaded Payment without Acquittance which was found for the Plaintiffe although issue was joyned upon a point not materiall yet after Verdict this is aided by 32. H. 8. and 18. Eliz. Bohuns Case 39. Eliz. fo 43. A Fine was levyed of a Mannor and other Lands to the value of twenty Marks per annum so that the Kings silver is 40 s which was paid but in entering of it upon the Writ of Covenant the Mannor was omitted and thereupon error was brought but after that the transcript of the fine was remov'd into the Kings Bench the Judges of the common place amended the Record because it appeares to them that the Kings silver was payd for the Mannor and where the Writ of Covenant was Dede meipso for Teste meipso they amended that also and certified it into the Kings Bench upon dimunution and allowed Freemans Case fo 45. 41. Eliz. Banco regis IN an original Writ c. Quod nullus faciat vastum venditionem et destrictionem where it should be destructionem the fault was onely in one Letter the Court resolved upon good Consideration that it was matter of substance for Destrictio is a Latine word and altereth the sence of the Statute and matter of Substance in an Originall Writ is not remedied but matter of forme onely Vide Statute 32. H. 8. ca. 30. 18. Eliz. ca. 14. If an Originall at this day want forme or containe false Latine or vary from the Register in matter of forme after Verdict no judgement shall be stayed or reversed But if it want substance although it be the misprision of the Clerke this is not remedied by any Statute Gages Case 41. Eliz. Banco regis fo 45. A Writ of Covenant to levy a fine boare Date after the returne this is amendable because a common assurance but in other actions no amendment c. Cookes Case 41. Eliz. com banco fo 46. A Common recovery of the Mannor of Isfeild by the name of Iffeld is amendable because it appeared to the Court by collaterall things shewed unto them that Isfield was intended to passe Cases of Pardons Francklyns Case 36. Eliz. fo 46. In the Starr-Chamber A Bill was exhibited for a Ryot in the Starre-Chamber five yeares before the generall Pardon 35. Eliz. and it was resolved that the Kings fine was excepted but not the corporall Punishment but if it were exhibited within foure yeares all shall be accepted In this Case the Kings attourney may proceede for the fine Guilbert Littletons Case 39. Eliz. fo 47. Starre-Chamber A Bill exhibited in the Starre-Chamber before the Parliament 35. Eliz. and returned after this is excepted out of the generall pardon for it was depending before the returne but if an Originall Writ issueth out of the Chancery returnable in the common place this is not depending before the returne because out of another Court but after the returne it shall be said depending by relation from the day of the Teste and if the Tenant alien before the returne and after the Teste this shall be said an alienation pending the Writ Drywoods Case 42. Eliz. Starre Chamber fo 48. A Bill in the Starre-Chamber more then foure yeares and within 8. yeares before the Parliament in 39. Eliz. the Plaintiffe dyeth before the generall pardon this is pardoned for this doth not depend now and the words remaining to be prosecuted shall be intended for the party and not for the Kings Atturney Vaughans Case 40. Eliz. Banco regis fo 49. A Writ of entry in the Quibus depends in Wales before the generall Pardon and after the Demandant had judgement but the Tenant was not amerced 1. Resolved the Amercement is pardoned because the Torte was pardoned which together with the delay was the ground thereof 2. The Statutes of Jeofailes extend to Wales because it is made parcell of England by the Act of 27. H. 8. Wyrrells Case 41. Eliz. In the Exchequer fo 49. THe Queene brings debt upon an Obligation made by the Defendant to one who was Outlawed the Defendant pleads the generall Pardon and although that Debts due to the Queene are excepted yet Debts Originally due to the Subject and after came to the Queene are not excepted also the genetall pardon is to be taken beneficially for the subject and most strong against the King Biggens case 41. Eliz. Banco regis fo 50. THe King may pardon burning in the hand where the Defendant is found guilty of Man-slaughter and hath his
his warrant to bring the party before himselfe and it is good and sufficient in Law for it is most like that he hath the best knowledge of the matter and therefore most fit to doe Justice in that matter upon refusall to finde surety the Constable may commit him without a new warrant Gooches case 32. El. in banco le roy fol. 60. WRay chiefe Justice said that if A. make a fraudulent conveyance of his Lands to deceive a purchasor against the Statute of 27. El. and continueth in possession and is reputed as owner B entereth in communication with A. for the purchase and by accident B. hath notice of this fraudulent conveyance Notwithstanding he concludes with A. and takes his assurance In this case B. shall avoide the said fraudulent conveyance by the said Act notwithstanding the notice for the Act by expresse words hath made the fraudulent conveyance voyde as to the purchasor And for as much as that is within the expresse provision of the Statute it ought to be taken and expounded in suppression of fraud Resolved that fraud may be given in Evidence because the estate is voyde by the Act of 13. Eliz. and fraud is hatched in secret in arbore cava opaca And according to this opinion it was resolved Per tot ' Cur ' in communi banco Pasche 3o. Jac. where one Bullock had made a fraudulent estate of his Lands within the Statute of 27. El. to A. B. and C. and after offred to sell the same to one Standen and before the assurance by Bullock Standen had notice thereof and notwithstanding proceeded and tooke the assurance from Bullock Standen avoyded the former assurance of fraud by the said act for the notice of the purchasor cannot make that good which an Act of Parliament hath made voyde as to him And it is true Quod non decipitur qui scit se decipi But in this case the purchasor is not deceived for the fraudulent conveyance whereof he had notice is made voyde as to him by the Statute and therefore he knew it could not hurt him Sparries case 33. Eliz. in Scaccar fol. 61. IN action of Trover and convertion the defendant pleads that there is another action depending in the Kings Bench for the same Trover and good for in actions which comprehend no certeinty as assize or trespas this is no plea before a Count because thereby it is made certeine and then it is a good plea and not before but in this action and debt and detinue it is a good plea at the first because they are certeine that an action is depending in an inferiour Court is no plea. Cases of By-Lawes Chamberlaine de Londons case 32. El. in Banco le roy fol. 66. THe Inhabitants of a village without any custome may make Ordinances or By-Lawes for reparation of the Church or of high-wayes or any such thing which is for the publicke weale generally and in this case the consent of the greater part shall binde all without any custome vide 44. E. 3.19 But if it be for their owne private profit for that Towne as for their well ordering of their common of pasture or such like then without custome they cannot make by-Lawes And if it be a custome yet the greater part shall not binde all if it be not warranted by the custome for as custome hath created them so they ought to be warranted by the custome 8. E. 2. tit ass As pontage murage Tolle and such like as appeareth in 13. H. 4.14 In which cases the summes for reparations of the Bridge walls c. ought to be so reasonable that the Subject may have more benefit thereby then charge Clerks case 38. Eliz in communi banco fol. 64. KIng Edward 6. did incorporate the Towne of St. Albones and granted them to make Lawes and Ordinances c. The Tearme was kept there and the Major c. by assent of the plaintiffe assessed every Inhabitant for the charges in erecting of the Courts there and if any did refuse to pay c. to be imprisoned c. the plaintiffe being Burges refused to pay c. and the Major justified c and it was adjudged no plea c. For this Ordinance is against Magna Charta ca. 29. Nullus liber homo imprisonetur which act hath been confirmed divers times viz. thirty times and the assent of the plaintiffe cannot alter the Law in this case But it was resolved that the Major c. might inflict reasonable penaltie but not imprisonment which penaltie ought to be Levied by Distresse for which offence an action of Debt lyeth and the plaintiffe in this case had judgement Jeffrays case Michaelis 31 32. en Bank le Roy. fol. 66. WIlliam Jeffray Gent. brought a prohibition against Abraham Kenshley and Thomas Forster Churchwardens of Haylesham in Com' Sussex for that they sued him in Court Christian before Doctor Drury for certaine money imposed upon him without his assent for repaire of the Church That the Church-wardens with the assent of the greatest part of the Parishioners juxta quantitatem qualitatem possessionum reddit ' infra dict' parochiam existent Determined and agreed to make a taxation for repaire of the said Church and that notice of such assembly was given in the Church at which day the Church-wardens and greater part of the Parish which were there assembled made a taxation viz. every occupier of Land for every acre 4. d. c. Geffray dwelt in another Parish and declared that the Parishioners of every Parish ought to repaire their Church and not the Church of another Parish Cooke of councell with the defendant demurred in Law and after many arguments a Writ of consultation was granted And it was resolved that the Court Christian hath conusans de reparatione corporis sive navis Ecclesiae Britton who writ in 5. E. 1. And in the Statute of Circumspecte agatis but in Rebus manifestis errat qui authoritates legum allegat quia perspicuè vera non sunt probanda It was also resolved that although Geffray did dwell in another Parish yet for that he had Lands in the said Parish in his proper possession he is in the Law Parochianus de Haylesham But it was resolved that where there was a Farmor of the same Lands the Lessor that receiveth the rent shall not be charged but the Inhabitant is the Parishioner and the receipte of the rent doth not make the Lessor a Parishioner Diverse of the civill Lawyers certified the Court that the Church Wardens and a greater part of the Parishioners upon a generall warning assembled may make a Taxation by their Law and the same shall not charge the Land but the Person in respect of the Land for equality and indifferency and this was the first leading case that was adjudg'd reported in Our Bookes touching these matters and many causes after were adjudged thus and now it is generally received for Law The Lord Cheneys Case 33. Eliz.
Banco fol. 7. IF one be barred by plea to the Writte hee may have the same Writte againe if by plea to the action of the Writte he may have his right action If the plea be to the action and he be barred by Judgement upon demurrer confession or verdict in personall actions it is a barre for ever and in reall actions he is put to a Writte of higher nature as barre in assize barreth one in Entry in nature of an assize but he may have an assize of Mortdaumester c. But barre is not perpetuall if those who are barred have not the meere right therefore the heire in taile who is barred shall have the same action so of the successor of a Parson if he doth not pray in ayde of the Patron and Ordinary He who lost by default before the Statute of Westminster 2. cap. 4. was put to a Writte of right and if he could not have this Writte he was without remedy In case where a Writte of Entry in the post lyeth now no remedy was before the Statute of Marlebridge cap. 29. but a Writte of right See there divers inconveniences which insue upon the breach or alteration of the auncient and fundamentall rules of the Common Law Interest Reipublicae ut sit finis litium Where a Writte shall be brought by Journeys accounts Spencers case 45. Eliz. Com. Banco fol. 9. IF a formedon abate for undue summons the demandant may have another by Journeys accompts 1. Resol If a Writte abate by default of the demandant himselfe he shall not have another Writte by Journeys accompts otherwise it is if by default of the Clerke or Sheriffe as in this case If a Writte abate for nontenure of all he shall not have c. but if a Praecipe abate for non-tenure of parcell he shall have another so if it abate for joyntenancy of part of the demandant he shall not have a new Writte because he had notice otherwise it is of the part of the tenant And this Writte shall be alwayes betwixt the parties to the first Writte and of the same quantity of acres A Judiciall Writte shall never be sued by Journeys accompts because it shall never abate for forme 2. The second Writte is quasi a continuance of the first Writte therefore all pleas which relate to the purchase of the Writte shall be pleaded from the purchase of the first Writte and costs of the first Writte shall be recovered 32. E. 3. Journeys accompts 16. 15. dayes were allowed Jentlemans case 25. Eliz. concerning Judges of Courts fol. 11 IN the Hundred Courts the Sutors are Judges in the Court of Pypowders the Steward is Judge In a Leet the Steward is Judge In a Court Baron the Sutors which are by the common Law are Judges Rex sectatoribus Curiae c. Vobis mandamus c. ad judicium reddendum c. procedatis but in Redisseisin the Sheriffe is Judge by the Statute of Merton cap. 3. and in the Tourne Morrices case 27. Eliz. Com. Banco fol. 12. IT was adjudged that after the act of 28. H. 8. ca. 1. although joyntenants be compellable to make partition by Writte as well as Copartners yet they may not make partition by words as Copartners may doe by the common Law If two joyntenants make partition by Writte the warranty remaineth otherwise it is if it be by deed by Consent Cases of pardon 29. Eliz. fol. 13. BVrton Parson of Isbock in Leic was deprived Anno 12. El. for committing Adulterie and after by the generall pardon 2. Apr. 13. El. the offence of adulterie in t alia was pardoned before the 14. of February then last past And it was said that before the pardon that crimen adulterij praed transivit in rem judicatam and therefore the sentence should remaine in force And therefore untill the sentence were reversed the deprivation was in force But it was resolved that Burton by vertue of the said pardon is become Parson againe without any sentence declaring the said deprivation to be voyde For by the pardon the adultery which was the cause of the sentence is discharged and by consequence all that which did stand or depend upon the same foundation is also discharged vide 20. El. Dier A. was bound in a Statute of 20. li. to B. B. sued Execution and the Lands of A. were delivered in Execution and after B. maketh Defeasance to A. by Indenture that if A. doe pay to B. 8. li. at a certaine day that then the Statute to be voyde And it was adjudged that although the Statute was executed yet the Defeasance of the Statute was sufficient in Law to defeate as well the Statute as the Execution thereof For the Statute is the foundation of all and if that be defeated all that is builded on the same shall be defeated also 20. ass pla 7. Burglary was excepted out of the generall pardon of 28. Eliz. by that the attainder of burglary is excepted for the offence remaines after judgement and is the foundation of it Arundells case 36. Eliz. Banco Regis fol. 14. AN Inditement of murther in King-streete in W. and the visne from W. and it was vitious for it ought to be from the most certaine place that is the Parish for W. being a Citie it shall be intended that it is greater then the Parish and therefore a new Venire facias was awarded Treports case 36. El. Banco Regis fol. 14. A. Tenant for life remainder in fee to B. both by Deed indented joyne in a Lease to Treport the question was whether the same shall be adjudged in Law the Lease of both of them or not And it was resolved that it was the Lease of A. during his life and the confirmation of B. And after the death of A. it was the Lease of B. and the confirmation of A. and because the plaintiffe had declared of a joynt demise of A. and B. it was adjudged against the plaintiffe in an Ejectione firmae If tenant for life and he in remainder joyne in a Lease rendring rent tenant for life shall have the rent during his life Edens case 37. Eliz. Banco Regis fol. 15. RIens passa by Letters patents shall be tryed where the Land is not where the patent beares date for the Patent is not traversed but the effect of the issue is whether the Queene had the said Land to grant or not Colyers case 37. Eliz. Com. Banco fol. 16. ONe demiseth to his daughter for life and after to his brother paying 20. s. to J. S. the brother had fee for the summe to be paid by him for otherwise he may pay the 20. s. and die without satisfaction but if the payment be to be made out of the profits of the Land he shall have but for life for there he can be at no prejudice Wyldes case 41. Eliz. Banco Regis fol. 16. A Man deviseth Lands to the husband and the wife and to the children of their bodies
in Banco Regis BY the Law it is not sufficient that the testator be of memory when he makes his Will to answer to ordinary and usuall questions but he ought to have a disposing memory so as he is able to make disposition of his Lands with understanding and reason And this is such a memory which is called safe and perfect memory otherwise a Prohibition lyeth at the common Law generally to stay all the proceedings in the spirituall Court as the probate of the Will c. untill this Suggestion be tryed at the common Law Reades Case 42. Eliz. banco regis fo 24. IN trespasse the Defendant makes Title for that A. W. was seised in fee and leased to him the Plaintiffe maketh title by discent and traverseth the Lease and good for it may be true that A. W. was seised and yet that a discent was cast to the Plaintiffe therefore the Lease is most materiall to be traversed Helyars Case 41. Eliz. banco regis fo 24. IN a Replevin the Defendant avoweth by grant of a terme by I. A. to S. from whom he claimeth the Plaintiffe pleads in barre that I. A. married T. who by a former deed granted the terme to the plaintiffe and traverseth the grant made to S. and vitious for he who claimeth by the first assignement shall not traverse the second but he who claimes by the second shall traverse the first But the first Feoffee shall traverse the last feoffment and the last feoffee shall not traverse the first feoffement because fee may be gained by disseisin after the first feoffement but a Lease for yeares caanot Ruddocks case 41. Eliz. banco regis fo 25. IN replevyn against six the Plaintiffe recovers the Defendants bring error the Plaintiffe pleads the release of one of them not good Where diverse are to recover a personall thing the release or default of one barres all but not where they are to discharge themselves of a personalty if they are compelled to joyne as in error and attaint otherwise in Outlary because not compellable to joyne for where they are to discharge themselves they have no joynt interest and although they shall have their damages againe it shall be intended that they paid them of their severall goods otherwise it may be doubted if Execution had beene made of goods which they have joyntly Sharps case 42. Eliz. fo 26. com banco IF a man make a feoffement in Fee or a Lease for life and say to the Feoffee being eyther on the Lands of within the view Enter into this Land and enjoy the same according to this deed c. this is a good livery but the delivery of the deede upon the Lands without any further ceremony or saying doth not amount to a livery Throughgoods Case 9. Jacob in the nineth Booke The actuall delivery of a Writing sealed to the party without any words is a good livery but not a livery of seisin although the Party be upon the ground If I deliver a deede unto the feoffee or Lessee of the Messuage mentioned in the deede in the name of seisin of the said Messuage and of all the Lands tenements c. in the same contained or other such like words without any ceremony or act done this is a good seisin The Case of Souldiers 43. Eliz. fo 27. THe Statutes of 7. H. 7. cap. 1. and 3. H. 8. cap. 5. against Souldiers who run away are acts perpetuall for the word King includeth all his succession and a gift to the King inureth to his Successors Vicount Mountagues Case 43. Eliz. in Scaccar fol. 27. VIcount M. with License of the K. suffers a recovery to B. and D. to uses with power of revocation and limitting of new and revokes and limits new uses the King shall have no fine for alienation 1. Resolved if the King doth license to alien to one and alienation is made to the use of another the King shall not have a fine for although that the King was not informed of his Tenant yet the use is executed by the Statute of 27. H. 8. which can doe no wrong and the proviso in the Statute that a fine shall be paid for executing of uses is to be intended of uses raised by Covenant or declared upon a Fine Feoffement c. when no License of alienation is obtained 2. Although that by revocation and new limittation of uses the tenant of the King be altered yet no fine is due because all ariseth out of the estate of B. and D. which was made with License Greenes Case 44. Eliz. banco regis fol. 29. TEnant for life of a Mannor to which an advowson is appendant the remainder in Fee to I. S. presenteth one who at the suite of the Tenant for life is deprived for not reading the Articles but no notice is given to the Patron the Queene by lapse presents the Defendant Tenant for life and his incumbent die he in the remainder presents the Plaintiffe Greene who recovereth 1. Resolv Although the Patron were party to the Suite and so had notice yet lapse shall not incurre without notice given by the ordinary as the Statute speakes and the notice ought to be speciall that he did not reade the Articles and therefore was deprived and generall notice is not sufficient 2. The Church is voyd Ipso facto by the Statute of 13. Eliz. without deprivation 3. If the Queene present Ratione Lapsus where shee is Patron this is voyd A fortiori when shee had no title at all 4. The Patron is not put to a Quare impedit by presenting him who read not the Articles nor by Collation but by Collation of him who had right to Collate the Patron is put out of possession 5. The Queene may be put out of possession of an advowson because it is transitory but shee cannot be put to a Writ of right of advowson for none can gaine the Inheritance from her by wrong Boothies Case 3. Jacobi com banco fol. 30. THe condition of an Obligation is to deliver an Obligation to the Obligee and to acknowledge satisfaction it must be done in convenient time for acts transitory to be done to the Obligee although a place be appointed shall be done in convenient time and acts of their nature locall ought to be performed in convenient time if concurrence of the Obligor and Obligee be not requisite Also here the delivery of the bond being transitory and the acknowleding satisfaction such an act as may be performed in the absence of the Obligee they ought to be done in convenient time without request but if the Act be locall and their concurrence necessary the Obligor had time during his Life if not hastened by request If the concurrence of the Obligor and a stranger be necessary it ought to be done in convenient time if concurrence of the Obligee and a stranger it ought to be hastened by request And alwaies if the Act to be done is not for the benefit of the Obligee
he lost his Common the Jury found that the Defendant did not put in the Beasts but they of themselves depastured there 1. The Jury have found the substance of the issue for the Plaintiffe the depasturing there and it is not materiall if he put them not there 2. This Action lyeth for the Commoner for he may distreine damage feasant and it may be that with strong hand he is hindered to distreine and so if he shall not have this Action he is remedilesse 2. A Commoner who had freehold in the common shall have an Assize Ergo a Copy-holder shall have this Action 3. The wrong ought to be so great that the Commoner loose his Common as a Master shall not have an Action for beating his Servant without losse of his Service and it appeareth not to the Court that there are more Commoners then he and if there be yet an Action lyeth because each had private damage and it is not like to a common Nusans which shall be punished onely in a Leete if there be not speciall damage but be the Trespasse never so little the Lord may have an Action of Trespasse The Lord Sanchars Case 10. Jacobi fol. 117. For procuring the Murther of John Turnor Mr. of Defence 1. REsolv That a Baron of Scotland shall be tried by Commons of England 2. The Indictment of the accessory in one County to a Fellony in another County by the Statute of 2. E. 6. c. 24. shall recite that the fellony was done in the other County for an Indictment is no direct affirmation of the fact 3. The Justices of the Kings Bench are within these words of the Statute Justices of Gaole-delivery or Oyer and Terminer for they are the supreame Judges of Gaole-delivery 4. The Lord Sanchar cannot be in the Terme-time Arraigned in Midd. before Justices of Oyer and Terminer because Justices of Oyer and Terminer shall not sit in the same County where the Kings Bench is but the principalls were Arraigned in L. in the Terme-time because this is another County 5. There needs not be 15. dayes for the returne of the Venire facias upon an Indictment in the same County where the Kings Bench is otherwise in another County 6. Because there is no direct proofe that the Lord S. commanded one of the principalls but that he associated himselfe to one who was commanded the best way is to arraigne him as accessory to him whom he commanded but if he be Indicted as accessory to two and found accessory to one of them this is good The word Appeale in the Statute of W. 1. c. 14. is to be intended generally Viz. By Indictment by Writ or Bill c. and attainders is to be intended upon any such accusation Ergo if upon any such accusation the principall be attainted erroneously the accessory may be arraigned because the attainder is good untill it be reversed but if the Accessory be Hanged and after the Attainder against the principall is reversed the Heire of the Accessory shall be restored to all which his Father lost either by entry or Action By 5. H. 4. cap. 10. none shall be imprisoned by Justices of Peace but in the Common Gaole whereby it appeares that Justices of Peace offend who commit Fellons to the Counters in L. and other Prisons which are not Common Gaoles Cases in the Court of Wards Anthony Lowes Case 7. Jacobi fol. 122. A. L. Tenant of 59. Acres parcell of the Mannor of A. by chivalry and Suite of Court to B. whereof A. was parcell and both A. and B. were parcell of the Duchie of L. out of the County Palatine holden formerly of the King in Chivalry in Capite and of another House there holden of A. by fealty and rent H. 8. grants the rent by release to him and confirmeth his estate in the said Lands by fealty onely and grants to him the Mannor of A. Tenendum by fealty and rent It was Objected that when the King grants the Seigniory to his Tenant the ancient Seigniory is extinct and a new one that is best for the King created Viz. Chivalry 2. When he extinguisheth services parcell of the Mannor of A. this shall be holden as the Mannor of A. is that is by Chivalry But resolved that the 59. acres and house shall be holden by fealty onely and as to the said Objection the release of the King doth not extinguish service which is inseparable to a Tenure that is fealty but all others are gone and true it is when the K. grants and expresseth no tenure it shall be by Chivalry but when the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be as Feoffee of Tenant in Frankalmoigne shall hold by fealty onely and here although they grant the services yet he limits the grantee to doe fealty A Knights fee is not to be taken according to the quantity but the value of the Land as 20. l. per annum and a Hide of Land is as much as a Plough can Plough in a yeare Reliefe is the fourth part of the annuall value that is of a Knight five pound of a Baron a 100. Markes of an Earle 100. l. of a Marques 200. Markes of a Duke 200. l. The Eldest Sonne of E. 3. called the black Prince was the first Duke in England and Robert Earle of Oxford in the Raigne of R. 2. was the first Marques and the Lord Beaumont was the first Viscount created by K. H. 6. Floyers Case 8. Jacobi fol. 125. BAron and Feme seized of Lands holden in Chivalry in right of the Feme in Fee levy a Fine to one who grants and renders to them and the heires of the Baron and levy another Fine to their use for life the remainder to their three Sons in taile one after another the remainder in fee to the heires of the Baron the K. shall have neither wardship of body nor Land 1. Resol That is out of the Statute of 32. H. 8. cap. 2. if he who had the fee dye c. in respect the estate by the first Fine did not continue and this although both the Conveyances are voluntary 2. The King shall not have wardship of the third part because it is not for advancement of the Wife for in the first Fine the Land moved from her and shee had no more by the second Fine then by the first 3. In regard the particuler estate is out of the Statute no wardship accrueth to the King by advancement of him in the remainder but if a revertioner upon an estate for life convey it to the use of his Wife this will give wardship of the body of the heire for he in revertion is tenant if a Lease for life be the remainder to two and to the heires of one he who hath the fee dyeth his heire shall not be in ward if the heire of one joyntenant who had the fee dye of full age living the tenant for
inqure of the value if they finde for the Plaintiffe as in an Assize if issue be joyned upon a release and found for the Plaintiffe yet the recognitors must inquire of the seisin and disseisin and this defect shall not be supplyed with a Writ of inquiry because then the Defendant would be prevented of his Writ of attaint But if the Court ought to inquire of things whereof no attaint lyeth this being but of Office it may be supplyed by a Writ of inquiry as the foure points in a Quare impedit Viz. De plenitudine ex cujus praesentatione si tempus semestre transierit and the value of the Church per annum and in the case at Barr by the rule of the Court a new Venire facias was awarded The Case of the Maior and Burgesses of Lynn Regis touching misnaming of Corporations 11. Jacobi fol. 122. Communi Banco H. 8. in the 29. yeare of his Reigne did incorporate that Towne by the name of Majoris Burgensium burgi domini Regis de Lynn Regis and one made an Obligation to them by the name of Maior and Burgesses of Lynn Regis omitting these words Burgi Regis this is good because it is the same name in substance and doth not vary in materiall words and though it be not Idem nomen sillabis yet it is Re sensu for Burgesses that implyes it is a Burrough for Burroughs and Burgesses are conjugata and by Lynn Regis it appeares that it is Burgus suus i. Regis a fortiori because there is no other Corporation of the same name Apices juris non sunt jura there may be a difference betweene ancient Corporations and new for ancient Corporations may by usage have severall names and the Maior and Burgesses notwithstanding Non est factum pleaded had judgment to recover William Cluns Case 11. Jacobi fol. 127. Banco Regis A Lease for yeares if the Lessor should so long live rendring Rent at the foure Feasts or within thirteen weeks after after one of the Feasts the Lessor dyeth and before the thirteene weekes be past the Executor brings debt against the Lessee and the Defendant demurreth upon the Count and it was adjudged a good demurrer and that the action did not lye 1. Because the disjun ive is added for the benefit of the Lessee and the first day was but for voluntary payment but the legall time of payment was the end of the thirteene weeks before which when the Lessor dyeth the Lessee is discharged by act of God for that Quarter if Lessee before the day pay the Rent this is voluntary and not satisfactory but it is good to give seisin if payment be in the morning and the Lessor dyeth at noon this is voluntary and satisfactory against the heire but not against the King Payment the last instant of the day is satisfactory and after the day it is coercive and satisfactory 2. When the first day is past it is as if the Rent had been onely reserved the second day for the election is good 3. The rent is to he payd out of the profits of the Land Ergo in regard of time it shall not be apportioned and if the Lessor dye betwixt the first day and the last day his heire and not the Executor shall have the rent because it was not then due if a man lease for yeares rendring Rent at M. or within a moneth after with a condition of re-entry and the Lessee tenders it at the last instant of M. the Lessor shall not re-enter upon demand the last day of the moneth because the Lessee had liberty to pay it then and the difference was taken betwixt the sayd disjunctive Reservation and when the reservation is at a certaine Feast and a condition is added that if it be arrere by the space of a moneth after the Feast that then the Lessor c. there the Lessee for salvation of his Lease cannot tender it at the last instant of the Feast because he had no such liberty as in the other Case A Lease for yeares rendring Rent at M. or within twelve dayes after upon condition to re-enter if it be arreare by the space of twelve dayes after any of the sayd Feasts or dayes the Lessee shall have twenty foure dayes in safegard of his Lease after the Feast of M. and in the Case at Barr judgement given Quod quaerens nil capiat per billam James Osbornes Case 11. Jacobi fol. 130. Banco Regis IN an action upon the Case for that the Plaintiffe had bought of the Defendant diverse goods which he refused to deliver whereof one was unum fulchrum lecti Anglice a Feild Bedstead with a Testerne and Curtaines of Saye the Plaintiffe recovers and damages assessed intirely where none ought to be given for the Testerne c. for Fulchrum signifieth a Bedstead onely upon errour brought therefore judgement was affirmed for one thing onely is here put in issue for the other things are not alleadged Positive sed expositive and are nugation but when two things are put in issue or Obliqué inquired of by the Jury there it is not good and it shall not be intended that damages were given for that onely for which the action was brought but in an action upon the Case for words spoken at one time whereof some are actionable and some not there damages may be assessed intirely and shall be intended to be given for the words actionable onely 1. Because the Plaintiffe must declare as the words were 2. Because the words not actionable aggravate the damages otherwise if spoken at severall times but here damages shall be intended to be for that which is actionable onely and the rest as if never alleadged and in Writs or Pleas English words are not admitted by 36. E. 3. cap. 15. except they be parcell of a name as Jo. in the Hall 2. words which passe under the name of Latine are 1. Good Grammaticall Latine 2. Words significant in Law and not in Grammar 3. Incongruous Latine which doth not vitiate a Plea or Grant nor judiciall Writ 4. Words insensible having no countenance of Latine and are rejected but fained words as Velnetum Stapedia c. are good Read and Redmans Case 10. Jacobi fol. 134. THe Defendant in debt brought by two Executors pleads the death of him who was summoned and severed Resolved The Writ shall not abate if two purchase an originall reall action and one dyeth pending the Writ this shall abate in all as in case of joyntenants or parceners where one dyeth having issue or no issue because that shee may have a Writ for the whole and shall not recover a moity and one shall not recover upon a false reall Writ or unapt for his Case in respect hee may have an apt Writ although it happen after by act of God but if two purchase a judicial Writ and one is summoned and severed and dyes without issue the Writ shal not abate the same law where jointenants
a Stranger be not in another part of the House but this was before 39. Eliz. cap. 15. whereby clergy is taken away without putting any feare if he rob any man of above the value of five shillings Accessory before in robbing a House in the day is ousted of Clergy by 4. 5. Phiâ— Mary Accessory in robbing a Booth in the night or day or out House upon 39. Eliz. shall have his Clergy Nota Although a Statute takes away Clergy from the principall yet the accessory before or after shall have it and where by statute for any offence a man is ousted of his Clergy the indictment must containe the offence with the circumstances in the Statute Dyer 99. and 183. And A. P. was ordered to be hanged in Chaines c. Metcalfs Case 12. Jacobi fol. 38. In Accompt IUdgement is given against M. Quod computet ideo in misericordia quia prius non computavit and before finall Judgement Error is brought 1. Resol It lyeth not 1. Because the Writ of Error saith Si juditium inde redditum sit which shall be intended of the principall Judgement as the Feast of St. M. shall be intended the principall Feast and the Feme shall be received upon default of her Baron after judgement of admeasurement before the principall judgement 2. It shall be intended an intire judgement therfore in an action against two if one plead to the issue and the other confesseth and judgement given against him he shall not have error before the Plea determined against the other for otherwise there would be a failer of right for the Kings Bench cannot proceed upon the Record nor the Common place because it is removed 3. The first judgement is not ad grave damnum for by that he looseth nothing but judgement of the arrearages and damages is the end of the originall 4. This is not properly a Judgement but an Award of the Court as ouster of ayde in partitione facienda an awarde quod partitio fiat c. which are but interlocutory and not definitive 5. They have day by the Roll untill the last judgment but if a Felon dye after the exigent awarded and before attainder a Writ of Error lyeth for necessity for otherwise his goods are forfeited by awarding of the exigent without remedy if diverse are sued by severall Praecipes and Judgement given against one he shall have error before judgement given against the other and if error be in the originall the tenor onely shall be certified for otherwise the Court cannot proceede against the others 2. It was Resolved That the Record is not removed because untill finall Judgement be given the Chiefe Justice of the Common place hath no authority to send it and they may proceed notwithstanding the Roll be marked Mittitur Richard Godfreys Case 12. Jacobi fol. 42. TWelve chiefe pledges according to the custome of the Mannor to present at the Leet that every one of themselves ought to pay for themselves 10 s. pro certo letae the Stewart imposeth a Fine of 6 l. upon them the Lord distreineth for the Fine and certainty of Leet one of the pledges brings Replevin and judgement was given for the Plaintiffe 1. Resol The Fine is not well assessed for it ought to be severall and not joynt as it is because the offence is severall and although that the offence be joynt yet the Fine shall be severall as in disseisin and trespasse But for the incertainty of the persons and infinitenesse of the number many may be fined together as a Towne for the escape of a Felon and the reasonablenesse and excessivenesse of the Fine shall be determined by the Judges Excessus in re qualibet jure reprobatur communi as excessive distresse excessive ayde and excessive amerciament are against the Common Law 2. If the Fine be imposed erroneously it may be avoyded by Plea for he had no other remedy 3. The Lord cannot distraine pro certo Letae without prescription because it is against common right but he may for a Fine or amercement but for an amercement in a Court Baron the Lord must prescribe a Fine because it is assessed by the Court needs not to be affered but an amercement must be affered by the Countrey 4 Admitting that he may distraine pro certo Letae he shall have a returne although hee had not cause to distraine for the Fine for where one brings an Action for two things and it will not lie for one of them it shall abate onely for that if he cannot have a better action for it but if he may it shall abate for the whole as in a Formedon of Land and of an advowson the Writ shall stand for the Land so if a man avow for diverse Rents arreare and it appeareth that parcell is not yet due yet the avowry is good for the residue but if a man bring a Writ of Entry in nature of an Assize of two Acres where it appeareth that for one Acre he ought to have a Writ of Entry in the per there all shall abate for this extends not to the action but to the Writ onely Richard Lifords Case 12. Jacobi fol 46. IN trespasse the Defendant pleads that J. L. was seized in fee and demised to T. S. and M. P. excepting Trees above twenty one yeares growth if not decayed for their lives and covenanted to stand seized de tenementis predictis cum pertinentijs superius dimissis to the use of R. L. in taile c. and the Defendant as Servant to the sayd R. L. entered and sold Trees and Judgement was given against the Plaintiffe 1. Resol That the Trees notwithstanding the exception remaine parcell of the inheritance and are not Chattels but shall descend to the Heire for the Law doth not favour severance of the Trees from the Land therefore if one bargaine and sell Land upon which there are Trees they shall not passe without inrolement 2. If there had not been such an exception the generall interest of them is in the Lessor and the Lessee had but a particular interest in them and the Lessor may sell them without license of the Lessee to take effect after the Lease determined and tithes shall not be payd for them because they are parcell of the inheritance 2. By the exception of them the soile is not excepted but onely so much as sustaineth the Tree and if he by licence of the lessee root them up the lessee shall have the soile but by exception of Wood the Land it selfe is excepted if an Acre or an advowson be severed from the Mannor by exception upon a Lease for life it shall not be parcell of the Mannor againe otherwise of trees for they were not severed in facto because they grow out of the Land 3. A thing in possession cannot be parcell of a reversion upon an estate for life but Trees which grow out of the Land and Fish or Deer in the Land may and shall passe with it
4. In this Case by grant of the reversion generally or of the Tenements the Trees passe for the inheritance of all the Land passeth and thereby the Trees annexed to it the disseisee by his entry shall have the Corne upon the ground as well as the Grasse by relation of continuance of possession but this relation is not of effect to have a trespasse against any but the first disseisor for in fictione juris semper aequitas existit and the emblements shall be recovered in damages 5. In the Case at Barr by exception of the Trees power is reserved to the lessor or his servants to enter and show the Trees to the Vendee Cuicunque aliquis quid concedit concedere videtur id c. 6. The plea in Barr is insufficient for he showeth that there was another joyntenant for life not named in the Writ and demands Judgement if action which is an unapt conclusion 2. The Plea is double one to the Writ another to the Action 3. He pleads the entry of the lessees for life which is surplusage 4. Hee averreth not that the Trees which were sold were nor Dotards which are excluded out of the exception but that they de jure pertinebant to R. L. which is not formall but upon all the matter there appeared sufficient cause to give Judgement against the Plaintiffe and therefore by the rule of the Court Quaerens nil capiat per billam The Case of the Taylors of Cloaths c. of Ipswich 12. Jacobi fol. 53. THe Taylors of I. make an Ordinance that none shall exercise the Trade in I. if he have not been an Apprentice for seven yeares and if hee doe not appeare before them to be approved upon forfeiture of five Marks and for breach of it bring debt the Defendant pleads that he was reteined by A. P. to be a domestick Servant and that he made Garments by his command 1. Resol At the Common Law none may be prohibited to exercise any Trade although he hath never been an Apprentice and be ignorant but if he misdoe any thing an action of the Case lyeth 2. This Ordinance for so much as is not prohibited by the Statute of 5. Eliz. is against Law for after seven yeares Apprentiship he may exercise his Trade without allowance of any 3. The Statute of 5. Eliz. doth not prohibite the private exercise of any Trade in a Family therefore this is out of the said Ordinance 4. The Statute of 19. H. 7. cap. 7. doth not corroborate any Ordinance against Law if it be allowed but the allowance dischargeth the penalty of 40 l. for putting in use any ordinances which are against the Prerogative of the King or the common profit of the people and Judgement was given Quod querentes nil caperent per billam Edward Savells Case 12. Jacobi fol. 55. AN Ejectione firmae lyeth not of a Close but it must be of a certaine number of Acres and the nature of them must be shewed A Writ shall not abate for want of order Viz. Of a House before Land c. and judgement was stayed Benthams Case 12. Jacobi fol. 56. IF damages or costs are omitted or not well assessed by the Jury if the Plaintiffe release them he may have his judgement and it shall not for that be reversed Insufficient assessement of damages and no assessing is all one Doctor Fosters Case concerning Recusants 12. Jacobi fol. 56. AN Information was preferred against a Recusant by an Informer Tam pro domino rege quam pro seipso before the recusant was convicted for 220. l. that is 20. l. a Moneth for a 11. Moneths absence from the Church c. And judgement given against the Defendant 1. Resolved that he may be convicted to satisfie the Statute of 23. Eliz. in this same Suite and convicted shall be taken for attainted for he shall forfeit nothing before judgement 2. The Branch of distribution in the Act of 23. Eliz. extendeth as well to the clause of penalty for recusancy as to that of hearing or saying Masses for it is all one to say shall forfeite and shall forfeite to the King 2. Diverse acts of Parliament give the penalty to the King and yet after make a distribution thereof to another who will sue as 3. H. 6. cap. 3. 3. H. 7.3 3. He against whom judgement is given upon demurrer or default or otherwise is convicted within the Statute for he is attainted which implieth it for it is so found by the Judges so by the Statute of 8. H. 6. treble damages are given where a disseisin is found to be with force this extends to a judgement by Nihil dicit or default 4. The Statute of 28. Eliz. doth not take away the Statute of 23. which giveth liberty to the informer c. for 1. It is made for more speedy execution of it 2. It doth not alter the suite of the party but of the King and leaveth the Informer as he was before 3. The Act of 28. giveth not the penalty to any new person for it was given to the K. by 23. Eliz. 4. The Statute of 28. extends onely to Indictments and toucheth not informations 5. The Defendant is not within 28. Eliz. if he be not convicted at the suite of the K. Ergo this is left as before 6. Because the Statute is in the affirmative and they may stand together but the Statute of 28. alters the Statute of 23 in this that it confineth Suites against Recusants in the K. Bench or Assizes c. which clause extends as well to the suite of the informer as of the Queene and the Statute of 35. Eliz. and 3. Jacobi inlarge the Jurisdiction as to Suites of the K. and touch not the suite of the party 5. The Statute of 35. taketh not away the Action popular given by 23. for it was made to give more speedy remedy and not to take it away a feme Covert is within the Statute of 23. and 1. Eliz. but before the Statute 35. Eliz. if a Feme Covert had been indicted of recusancy the forfeiture should not have been levyed of the goods of the Husband because he was not party thereunto otherwise in an Information or Debt brought by the informer and in that that the Statute of 35. is that the K. shall recover all the paines c. in such sort c. this alters the remedy onely as to the Queene for now shee may proceede by action as for recovery of any other Debt by the Common Law in such manner as 1. H. 7. c. 1. giveth a Formedon against Parnor of the profits c. also 35. Eliz. is in the affirmative and although it giveth the penalty of 20. l. by the Moneth yet it taketh not away 1. Eliz. which giveth 12. d. for every Sonday and Holy day and where this Statute saith that the conviction shall be in the K. B. or at the Assizes yet the Justices of Peace and others authorized by 23. may take
Execution thereupon by Elegit Page 152 153 How long the Conisee shall hold the Land Page 153 Concerning Deeds inrolled and levying of fines of Land the Common Law preferred before the Statute Law the excellency and antiquity of Records Page 154 155 Rent must be demanded at the place limitted although out of the Land before advantage of a condition taken Page 155 Vpon a Lease by the Q it must be paid at the Exchequer ib. By vertue of a Fieri facias the Sheriffe may sell a Lease but the beginning and ending must be expressed Page 156 If the first benefice be of 8. l. per annum upon acceptance of another with cure the Patron must take notice upon 21. H. 8. c. 13. Page 157 Touching Corporations and their Elections and Ordinances ib. The effect of institution and also of induction and of Letters of dispensation Page 158 Touching Covenants and warranties in Law and when broken Page 159 Touching Strangers occupying Lands without notice of the Devisee Page 160 Goods delivered to one to keep or carry and they are purloyned Page 160 161 Estovers appendant to a house by grant or prescription and when destroyed and of suite to the Lords Milne Page 161 162 Touching reteining of Chaplaines by a Countesse within 21. H. 8. c. 13. Page 162 Of Contracts executory and Actions of the case upon Assumpsit and wager of Law Page 163 An ample and exact explanation of 1. E. 6. c. 14. of Chanteries Page 164 165 Touching reteining Chaplaines and dispensations Page 166 167 That the Lessee shall not alien without License and where a condition may be apportioned Page 167 Concerning Exchanges and what the word Excambium imports and of the warranty thereunto annexed and the nature of it Page 168 Arts done by a man Non compos mentis some binde himselfe and some others and how many sorts of them Page 169 THE FIFTH BOOKE A Lease to begin from henceforth and delivered after when it beginneth Page 171 What power the Bishop hath to make Leases by the private act of 1. Eliz. ib. A Lease of a Faire rendring rent is void by 1. Eliz. Page 172 What rent shall be said to be the true and ancient rent ib. Joint words taken severally in six respects Page 173 A Lease to A. during the life of B. and C. how long it lasteth ib. Therein is a difference betweene a limittation and condition Page 174 An Administrator hath judgement and dyes who shall sue execution thereupon ib. By what act an estate at will is determined ib. By exception of Wood the soile is excepted ib. Acceptance of a new Lease is a surrender of the first Page 175 If the Lessee of Lands may dig for Coles ib. A Lease to A. for his life and the life of B. and C. when it endeth ib. No Action of wast for permissive wast Page 176 Where there is a confidence an Action of the Case for negligence ib. Leases made to the Q. by Colledges Deanes c. are restrained by 13. Eliz Page 177 When a Covenant extends to a thing In esse of the demise it shall bind the Assignee otherwise when to a thing not in essence Page 178 If the thing to be done be meerly collaterall the assignee shall not be charged Page 178 Concessi or demisi import a Covenant Page 179 If any Covenantor breake the Covenant all the Covenantees must joine otherwise when severall interests passe Page 180 A diversity betweene a power and an authority ib. The Covenantee himselfe cannot devise the assurance ib. The Counsell must be given to the Purchasor Page 181 An Indenture void without a manuall act of indenting ib. Where a Condition or Covenant once broken may be salved after Page 181 A condition of two parts and both possible and one becometh impossible Page 182 An estate to be made at the costs of the Covenantee the Covenantor must doe the first act i. give notice what assurance he will have ib. The Seale of one Covenantor is broken it is void against him onely Page 182 183 A. is bound to give such a release as by the Judge of c A. must procure him Page 183 Terror of Suite is a damification upon a Counterbond ib. An action for reparations lyeth against the assignee Page 184 What interest is assignable over Page 185 Where an Indenture precedent to declare uses is only directory Page 186 Where an averment may be against a matter in writing Page 187 Cases of Executors Where a release by an Infant Executor is a barre Page 188 An Executor may release before probate but not have an action ib. A judgement for Debt shall be paid before a Statute Page 188 189 Administration during minority ceaseth at 17. yeares of age Page 189 Such an administration may not sell goods but for necessity ib. Where an administration is void and where voidable ib. Where an Executor of his owne wrong may retaine goods Page 190 An action against an Executor or by him where it must be in the Debet and where in the Detinet tantum ib. What retorne the Sheriffe must make upon a Devastavit Page 191 Administrator brings Debt barred because Executor ib. What act maketh a man Executor of his owne wrong ib. Constructions of the Statutes of Jeofails c. Amendment of Records Fines c. In Trespasse the nature of the Fishes must be shewed Page 192 Where a Debt against Baron Feme must be in the Debet Page 193 An ejectment of Lands out of A. B. and C. tried by a visne out of A. onely it is insufficient ib. 23. Jurors are returned and 12. appeare and find for the Plaintiffe it is good ib. Variance betweene the Writ and Count is not aided by 18. Eliz. ib. Five parts of a fine and where the Conisor may assigne Error Page 194 A common recovery not like other assurances more favoured Page 195 A pannell is annexed to the Venire facias without returne not good ib. A difference where a man is misnamed in the Venire and where in the pannell Page 196 Issue joined upon a point not materiall aided by the Statute ib. An amendment good after the transcript removed Page 196 197 Error in the Originall matter of Substance Page 197 A writ of Covenant upon a fine dated after the returne is there amendable but not in other actions ib. A common recovery taken by intendment Page 197 198 Cases of Pardons When a Writ shall be said to be depending Page 198 VVhere an Amerciament is pardoned the Statutes of Jeofailes extend to VVALES Page 199 Debts to the Q are excepted but not Originally due to the Subject ib. VVhere the K. may pardon corporall punishment Page 200 The K. may pardon the Suite in the Court Christian but not costs ib. An Office of intitling but not of Instruction may be under the great Seale Page 201 VVhere the rents are severall and where joint and where the Patentee of part may take advantage of a condition Page 202 A
manner of inheritances grantable in him Page 298 VVhen the Kings Charter shall be taken to two intents good how it shall be expounded ib. A Retraxit must be in proper person and where one may appeare by Attorney Page 299 No writ of Errour lyeth after disclaimer it doth after Retraxit ib. The copiholder commeth in by custome paramount Page 300 Where seisin of a rent needeth not to be alleadged within forty yeares ib. If the Jury try an Issue they shall not try it again by new nisi prius Page 301 Where de Injuria sua propria is a good plea and where not Page 301 302 Who may certifie excommunication and when it rightly done ib. VVhen a power to make leases for 21. yeares or 3. lives rendring the ancient rent is well pursued Page 303 Baron and Feme tenants in speciall taile she is within 32. H. 8. c. 28. Page 304 To what things a condition of accruer may be annexed Page 305 Foure things requisite to an accruer ib. By purchase of part of the land in which c. common appurtenant destroyed Page 306 An authority is countermandable but then the bond is forfeited Page 307 A devise of rent out of all the Capite land is good out of 2. parts ib. VVhere one formedome lyeth upon two distinct gifts Page 308 In actions reall founded upon tort one writ lyeth upon severall Titles ib. In personall actions one may comprehend severall torts ib. The demaundant must make himselfe heire to the party last seized Page 309 A disturbance by parol is no breach of a condition Page 310 VVhere the Plaintiffe shall have judgement although his title destroyed ib. VVhat words with consideration amount to a bargaine and sale ib. An Inrollment not necessary where a chattell only passeth Page 311 VVhere a will inureth by way of executory devise ib. A man may devise an estate which he cannot doe by act executed ib. What shall be said a good awarde Page 312 Where the heire of a copy-holder beyond the seas shall be barred c. ib. Mulier prisne over the seas barred by the death of bastard eigne Page 313 What manner of services multiplyed and what extinct ib. Herriot custome by purchase of part is not extinct Page 314 What power the Censors of Physicians Colledge have ib. Where a count may be made good by the barre and that by Replication Page 316 Many things good by custome which cannot be by Charter ib. The improvement shall be employed to the former charitable uses Page 317 Nothing accompted administred but the money paid by Composition Page 318 Where the plaintiffe shall have judgement the Replication being evill ib. Fully administred pleaded the Jury find assetâ—s for part what judgement ib. The force of a Repeale and where the ordinary may commit administration Page 319 A difference where obligor is made administrator and where executor ib. A commoner in a forrest where he may enclose within the stat of 22. E. 4. c. 7. ib. If A. be in execution upon an erroneous judgement and escape and the judgement is reversed the action against the Sheriffe is gone Page 320 But if judgement and execution be against the Sheriffe before that it shall stand good against him ib. Tenant for yeares grants the next avoidance and surrenders how it worketh Page 321 Where a man abusing his License hee shall be Trespasser ab initio ib. Tender of sufficient amends for damage feasant when good Page 322 What is barred by a Release of diâ—…ctions Quarrells Suites c. ib. What Errors in a Record are amendable much good matter Page 324 325 See there ten Misprisions not yet remedied Page 326 Cases in the Court of Wards Where Collusion may be averred to defraud the King of Wardship ib. The King shall have no wardship where there is no heire Page 327 Where a Patent shall he good Quacunque via data ib. If the first Melius inquirendum be good no other shall issue Page 328 To what severall times an Office shall have relation ib. A sale of Chattells after judgement Bona is good not after Execution Page 329 A Bargaine and Sale by the heire after livery tendered is good ib. The Heire Knighted in the Life of the Father who dyeth the Heire tenders livery the mean rates are saved ib. Where the King shall have his third part out of the whole Page 330 THE NINTH BOOKE WHere a subsequent Indenture may direct uses in a precedent recovery Page 331 Where an averrment of other uses may be made ib. A common essoyne is allowable in Dower Page 332 In a Writ of Dower who may plead deteinment of Chartars Page 333 The Beasts of the Termor are distreined and an avowry made upon a meere Stranger what remedy for the Termor Page 334 No distresse for damage feasant if the Cattell be chased out ib. What ancient Franchises ought to have allowance Page 335 What priviledges are extinct if they returne to the Crowne ib. Where the Tenure and where the seisin is traversable Page 336 A difference when one Executor refuseth and when all doe Page 337 They can bring no actions before probate Page 338 What power the Ordinary hath over the goods of the intestate ib. See 21. H. 8. c. 5. touching granting administrations Page 339 The grant of the Stewardship of the Mannor of D. good without naming the County where it lyeth ib. Where such a Grantee may make a Deputy without expresse power Page 339 Where Non user is a forfeiture of an Office Page 340 What Writs Vi armis are good Causa causans and Causa causata ib. What words amount to a Release Page 341 If it appeare that the Nusans is to the damage of the Plaintiffe he needs not shew it he may abate the Nusans if he will ib. Westm 2. c. 24. extends not to the Alienee of the alienee ib. How conspirators may be punished before acquitall Page 342 Conspiracies punishable before Execution must have foure incidents ib. What Act shall be said to be a Nusans as a Lime-pit c. Page 343 What things requisite to convict a man of Libelling ib. A man needs not to shew that which lyeth not properly in his notice Page 344 Much noteable matter touching Indictments and a Serjeants duty Page 344 c. Commissioners to examine witnesses are not bound strictly to the Letter Page 346 What the duty of a Commissioner is and how he must demeane himselfe Page 347 Whither a Feme Covert be within the Sâ—… of Westm 2. c. 35. ib. What Marriage is within that Statute Page 348 A surrender made by a Copy-holder by Letter of Attorney is good ib. What authorities may be Executed by Attorney ib. VVhere the Act must be done in the name of the authorizor Page 349 VVhere an accord is a good plea and what is requisite thereunto Page 349 350 VVhat Act shall be adjudged murder Ex eventu Page 351 VVhere an Attornement shall bind an Infant ib. An action of the Case