lies immediately upon a Recognizance in Chancery B. 84 to 89 220. If Debt lies upon it before or after Judgment upon the Scire facias B. 84 to 88 220. Debt brought upon a Recognizance but non constat where it was acknowledged C. 58. Record Of an Assise brought into the Common Bench by Error how to be remanded to the Judges of Assise for Error lies not in C. B. A. 55. Pleading of a Record in the same Court A. 63 65. Where and for whom Averment lieth against a Record A. 183 184. Removed by a vicious Writ of Error or before Judgment given the Record is still in the first Court B. 1 2. A Recordatur made per Car. of a Record mistaken B. 120. Recovery The form thereof where the Vouchee comes in by Attorny A. 86. Against an Infant per Gardianum A. 211. A Recovery by one Joynt-Tenant binds only his own moiety A. 270. The execution thereof necessary in some cases B. 48. By Estoppel B. 57. Recoveror is seised to the use of him who suffers it until other Uses are limited B. 63 64 66. See Stat. 21 H. 8. who may falsify a Recovery For what reasons Recoveries do dock remainders after an Estate tall B. 66. Recovery to the intent that the Recoverors shall make Estates if such Estates be not made in convenient time in whom the Freehold is B. 216 217 218. What issue is bound thereby per Stat. 32 H. 8. B. 224. Recouper If the Lessor covenant to repair the House and do not Lessee may do it and recouper out of his Rent A. 237. Recusant If Copyhold Lands were liable to seisure for Recusancy before the Stat. 35 Eliz. 2. A. 98 99. Within what time Action upon the Stat. 23 El. 1. must be brought A. 239. The Indictment needs not name the offender of a Parish but a Vill B. 167. Redisseisin Whether the Plaintiff may have it after Entry the Judgment therein A. 69. Relation Of a Participle of the present Tense without the word adtunc A. 61 172. Of an Attornment A. 265 266. B. 222. Of words in an Indictment B. 5. Of a Deed enrolled to vest Lands in the King B. 206 207. Of agreement to a Disseisin Feoffment c. B. 223. Release Where a Covenant in the same Deed shall release other part of the same Deed A. 117. C. 113. Of a chose en action nihil operatur A. 167. C. 256. If an Heir release to the Disseisor and after his Ancestor dies it does not bind the Heir B. 47 56 57. A promise may be released by Parol B. 76. See where a release to a Stranger may discharge a Bond C. 45. Release of Covenants before any broken discharges the Bond for performance C. 69. To what Tenant in possession it is available C. 152 153. One Grantee of a prochein avoidance cannot release to his Companion A. 167. C. 256. Relief The Heir of one Coparcener shall pay none because it is an intire thing C. 13. Remainder and Reversion In Fee after a Lease for life where not discontinued by a Fine levied by Tenant for life A. 40. Cannot vest in the right Heirs of one in the Feoffors life unless it begin first in the Feoffor A. 101 102. Where an Estate shall vest as a remainder where as a reversion A. 182. B. 33 34. A Reversion after an Estate for life passeth by Devise of all Lands and Tenements A. 180 181. When a Remainder limited upon an Estate which is void as a Gift to a Monk for life remainder over shall take effect A. 195 196 197. Lease for nine years determinable upon death of the Lessee and if he die within the Term the remainder of the Term to his Wife a void remainder A. 218. The difference between a remainder limited upon a contingency which may never happen and one that must and will happen A. 244. B. 82 83. Devise to J.S. haered to Uses in tail after the Estate tail spent The Devisor shall have the fee A. 254. If one of two Disseisees release to one of two Disseisors and the Tenant who released not do enter the Reversion is revested pro toto A. 264. If a remainder may be limited upon a Condition A. 283. Feoffment to J.S. primogenito filio suo If the Son be born after the Feoffment he shall take by remainder B 15. If the remainder of a Term for years be good B. 69. C. 110 111 197 199. Remainder executed by moieties upon a Gift to a Feme for life remainder to their Heirs C. 4. Grantee of a Reversion shall recover Damages only for breach of Covenant made since the Grant C. 51. What acts as Extents Grants c. do take a Reversion forth of him that had it C. 156. Remitter Where it shall be A. 6 7 37. C. 93 94. Tenant in tail creates a new intail upon condition which his issue breaks yet he is remitted after his Fathers death A. 91. Land given to Husband and Wife in tail before Marriage and the Baron aliens and takes back an Estate to him and his Wife for life both are remitted A. 115. C. 93 94. The Father enfeoffs the Heir who never agrees and dies the Heir is remitted B. 73. Father enfeoffs his younger Son who dies his Wife priviment enseint of a Son the elder Son enters he is remitted Quaere C. 2. If one may be remitted against a Warranty C. 10. Waived by the Wife who was Tenant in tail with her Husband her payment of Rent which was reserved upon a Devise C. 272. Rent What is a Rent what a sum in gross A. 137 138 269 333 334. C. 103. Rent reserved by a Lease for years becomes seck if it be granted over A. 315. Divers ways of suspending Rents and how they are revived 334. To what remainder or reversion it shall be incident B. 33 34. If a Rent may be divided to equal a devise of Soccage and Capite Lands B. 42 43. Shall follow the Reversion although reserved to Executors B. 214. Contrary to a sum reserved to Executors upon a Mortgage of Land C. 103. Rent payable at two Feasts is to be paid by equal portions C. 235. By destroying a Reversion a Rent which followed it is extinguished C. 261. Repleader None after Demurrer A. 79. After an unapt issue A. 90. Replevin and Avowry Avowry for Rent reserved upon a Feoffment in fee and for sult of Court A. 13. Bar by non Cepit and what is good evidence therein A. 42. By property in a Stranger Ibid. Where the Plaintiff or Avowant may vary from the number of the Cattle A. 43. Plaintiff cannot discontinue without leave of the Court A. 105. Avowry for Damage Feasant in Customary Lands leased to the Avowant A. 288. Avowry by the Stat. 21 H. 8. cap. 19. A. 301. Avowry for a Leet Fee B. 74. Bar to an Avowry made by a Bailiff that he took the Cattle de injuria c. and traverse that he took them as Baily B. 215.
abate For the Writ shall be brought by the Heir of the Survivor of the said two Daughters because they have that remainder as purchasors XXXIII Stuckly and Sir John Thynns Case Mich 9 Eliz. In the Common Pleas. THo Stuckly Administrator of the Goods and Chattels of one Tho. Curties Alderman of London brought Debt upon an Obligation against Sir John Thynn and demanded of him 1000 l. Et modo ad hunc diem venerunt Tam praefatus Tho. Stucklie quam praedict Johannes Thynn Et super hoc dies datus est usque Oct. c. in statu quonunc c. salvis c. At which day the Defendant made default and thereupon the Plaintiff prayed his Iudgment against the Defendant But the Opinion of the Court was That he could not have it but was put to process over because Dies Datus is not so strong as a Continuance XXXIV Luke and Eves Case Pasch 10 Eliz. In the Common Pleas. IN a Replevin by Luke against Eve The Defendant Avowed because that the Iury at such a Leet did present That the Plaintiff was a Resiant within the Precinct of the said Leet c. and that the Plaintiff was warned to appear there and notwithstanding that made default For which he was Amerced by the Steward there to 5 s. And so for that Amercement he avowed the taking c. The Plaintiff in bar of the Avowry pleaded That at the time of the said Leet holden he was not a Resiant within the Precinct of the said Leet Vpon which they were at Issue And it was found for the Avowant Whereupon Iudgment was given for the Avowant to have a Retorn XXXV Mich. 14 Eliz. Rott 1120. In the Common Pleas. THe Abbot and Covent of York Leased to J.S. certain Lands at Will and afterwards by Deed Indented under their Covent Seal reciting That whereas J.S. held of them certain Lands at Will they granted and demised that Land to the said J.S. to hold for life rendring the ancient Rent And by the same Indenture granted the Reversion of the same Land to a stranger for life It was holden by the Court clear That an Estate for life accrueth unto J.S. by way of Confirmation and the remainder unto the stranger depending upon the Estate created by the Confirmation XXXVI Sir Francis Carews Case Mich. 14 Eliz. In the Common Pleas. SIr Nicholas Carew seised of the Mannor of A. of which Mannor B. held certain Lands B. is disseissed by C. C. assures the same to Sir Nicholas Carew who is attainted of Treason by which Attainder the Mannor and Land cometh to King Henry 8th who thereof dieth seised and the same descends to King Edward the 6th who grants the same Mannor to the Lord Darcy who grants the same to Queen Mary who grants the same to Francis Carew Son of Nicholas Carew who by Fine assures the same to the Lord Darcy the Proclamations pass and the 5 years pass she who hath right to the Lands whereof the Desseisin was made being for all that time a Feme Covert And therefore the Fine did not bar her But because that the King was entituled to the Land by a double matter of Record and by the descent from Hen. the 8th to Ed. the 6th And also because a Seignory is reserved to the King upon the Grant made by King Edward the 6th to the Lord Darcy The Iustices were all of Opinion That the Entry of the Heir of the Disseisee was not lawful upon the Patentee of the Queen 2 Len. 122. but that she ought to be Relieved by way of Petition XXXVII Mich. 14 Eliz. In the Common Pleas. A Man brought an Action of Trespass against another for chasing of his Ewes being great with Lambs so as by such driving of them he lost his Lambs The Defendant justified because they were in his several Damage-feasans wherefore he took them and drove them to the Pound And it was holden by the whole Court to be no Plea for although that he might take yet he cannot drive them with peril c. XXXVIII Mich. 14 Eliz. In the Common Pleas. More Rep. 16 23. THe Case was A. made a Lease to B. for life and further grants unto him That it shall be lawful for him to take Fewel upon the premisses Proviso That he do not cut any great Trees It was holden by the Court That if the Lessee cutteth any great Trees that he shall be punished in Waste but in such case 1 Len. 117. the Lessor shall not re-enter because that Proviso is not a Condition but only a Declaration and Exposition of the Extent of the Grant of the Lessor in that behalf And it was holden also by the Court That Lessee for life or for years by the Common Law cannot take Fewel but of Bushes and small wood and not of Timber-Trees But if the Lessor in his Lease granteth Fireboot expresly if the Lessee cannot have sufficient Fewel as above c. he may take great Trees XXXIX Mich. 14 Eliz. In the Kings Bench. 2 Roll. 787. IN Trespass upon an Evidence given to the Iury at the Bar the Case appeared to be thus Land was given to A. in tail the remainder in Fee to his Sisters being his Heirs at the Common Law A. made a Deed in this manner viz. I the said A. have given granted and confirmed for a certain piece of Mony c. without the words of Bargained Sold And the Habendum was to the Feoffee with warranty against A. and his Heirs And a Letter of Attorny was to make Livery and Seisin And the Deed was in this manner To all Christian People c. And the Deed was enrolled within one month after the making of it And the Deed was Indented although that the words of the Deed were in the form of a Deed Poll And after 4 months after the delivery of the Deed the Attorny made Livery of Seisin A. died without Issue and the Sisters entred and the Feoffee ousted them of the Land and thereupon they brought an Action of Trespass And the Opinion of the whole Court was for the Plaintiff for here is not any Discontinuance for the Conveyance is by Bargain and Sale and not by Feoffment because the Livery comes too late after the Inrollment and then the Warranty shall not hurt them And although that in the Deed there be not any word of Indenture and also that the words are in the first person Yet in as much as the Parchment is Indented 2 Roll. 787. and both the parties have put their Seals to it it is sufficient Also It was clearly agreed by the Court That the words Give for Mony Grant for Mony Confirm for Mony Agree for Mony Covenant for Mony If the Deed be duly Inrolled that the Lands pass both by the Statute of Vses and by the Statute of Inrollments as well as upon the words of Bargain and Sale. And by Catline Wray and Whiddon the party ought to take by way
Len. 55. 1 Len. 333. The Abbot and Covent of D. 29 H. 8. makes a Lease of certain Lands for 3 Lives to begin after the death of one J.S. if they shall so long live And afterwards 30 H. 8. within a year before the Dissolution they make another Lease to JS If the first Lease in the life of J.S. be such an Estate and Interest which by vertue of the said Statute shall make the second Lease void was the Question For it was not in esse but a future Interest Manwood All the reason which hath been made for the second Lease is because the first Lease is but a possibility for J.S. by possibility may survive all the 3 Lives and so it shall never take effect But notwithstanding be it a possibility c. or otherwise It is such a thing as may be granted or forfeited and that during the life of the said J.S. And Note also the words of the Statute If any Abbot c. within one year next before the first day of the Parliament hath made or hereafter shall make any Lease or Grant for years life or lives of any Mannors c. whereof and in which any Estate or Interest for life or years at the time of the making of any such Lease or Grant then had his being or continuance or hereafter shall have his being or continuance and then was not determined c. shall be void c. And here is an Interest and that not determined at the time of the making of this Lease to J.S. And of that Opinion was the whole Court and all the Barons and divers other of the Iustices And therefore a Decree was made against that Lease c. CCXVII The Master and Chaplains of the Savoy's Case Mich. 29 Eliz. In the Exchequer THe Master and Chaplains of the Savoy aliened a parcel of their possessions unto another in Fee and afterwards surrendred their Patents and a Vacat is made of the Enrollment of them It was now moved How the Alienee should be adjudged to make title to the said Lands claiming the same by the Letters Patents For the Clerks would not make a Constat of it For the Patents were cancelled and a Vacat made of the Enrolment And the Case of Sir Robert Sidney was vouched in which Case the Statute of 3 E. 6. was so expounded upon great advise taken by the Lord Chancellor who thereupon commanded That no Constat be made in such case Manwood If Tenant in tail by Letters Patents of the King surrendreth his Patent and cancelleth it and a Vacat be made of the Enrollment by that the Issue in tail shall be bound For no other person at the time of the cancelling hath Interest But in the Case at Bar a third person scil the Alienee hath an Interest And therefore he was of Opinion That he should have a Constat c. CCXVIII Inchely and Robinson's Case Hill. 29 Eliz. In the Common Pleas. IN an Ejectione Firmae It was found by Verdict That King E. 6. was seised of the Mannor and Hundred of Fremmington 2 Len. 41. Owen Rep. 88. and granted the same by his Letters Patents to one Barnard in Fee rendring 130 l. per annum and also to be holden by Homage and Fealty And afterwards Queen Mary reciting the said Grant by King Ed. 6. and the Reservation upon it granted unto Gertrude Marchioness of Exeter the Mannor of Fremmington and the said Rent and Services and also the Mannor of Camfield and other Lands and Tenements Tenendum per vicesimam partem unius feodi Militis Gertrude being so seised Devised to the Lord Mountjoy the Mannor of Fremmington the Mannor of Camfield c. And also bequeathed divers sums of Monies to be levied of the premises And further found that the said Rent of 130 l. was the full third part of the yearly value of all the Lands and Tenements of the Devisor The Question was If by these words of the Devise of the Mannor of Fremmington the Rent and the Services pass i.e. the Rent Homage and Fealty reserved upon the Grant made by King Ed. 6. of the Mannor and Hundred of Fremmington And if the said Rent and Services are issuing out of the Mannor For if the Rent doth not pass then the same is descended to the Heir of the Marchioness and then being found the full third part of the value the King is fully answered and satisfied and then the residue of the Inheritance discharged and is settled in the Devisee And if the Rent doth not pass then is the Heir of the Marchioness entituled by the Statute to a third of the whole c. And Shuttleworth conceived That if the Marchioness had Devised by express words the said Rent and Services they could not pass For as to the Services they are things entire as Homage and Fealty they cannot pass by Devise in case where Partition is to follow for such things cannot receive any partition or division therefore not divideable For the Statute enables the Proprietary to give or devise two parts of his Inheritance in three parts to be divided As Catalla Felonum cannot be devised for the reason aforesaid Quod fuit Concessum per totam Curiam But as to the Rent the Court was clear That the same was deviseable by the said Statute and in respect of that the mischief of many distresses which the Common Law abhors is dispensed with and is now become distrainable of common right And as to the Devise he argued much upon the grounds of Devises and put a ground put by Fineux 15 H. 7. 12. Where every Will ought to be construed and taken according as the words purport or as it may be intended or implyed by the words What the intent of the Devisor was so as we ought to enquire the meaning of the Testator out of the words of the Will. And see also a good Case 19 H 8. 8 9. And he much relyed upon the Case of Bret and Rigden Plow Com. 343. See there the Case So in this Case for as much as such Intent of the Devisor doth not appear upon the words of the Will that this Rent shall pass It shall not pass for there is not any mention of any Rent in the whole Will. Fenner argued to the contrary and he argued much upon the favourable Construction which the Law gives to Wills. 14 H. 8. by Reversion for remainder e contra 17 E. 3. 8. A Man may make a Feoffment in Fee of a Mannor by the name of a Knights Fee a multo fortiori in the Cases of Devises And in our Case the Marchioness conceived That the Rent and Services reserved out of the Mannor of Fremmington was the Mannor of Fremmington and that the Law would give strength to that intent Walmesley conceived That the Rent did not pass by the name of the Mannor c. for this Rent noc in veritate nec in reputatione was ever taken for a Mannor
Regem quando potest intelligi duabus viis As if two be joyntly endebted to the King and the King pardons to one of them Omnia debita the same shall not extend to joynt-Debts but to those Debts of which he is only Debtor 40 E. 3. The King granted to a Subject the Fines and Amercements hominum suorum All which hold of him by Homage may be said homines suos and also his Villeins are homines suos but because the general words may be served the said Grant shall be taken to extend to his Villeins only So in our Case the general words may be served with Lands in possession and shall not extend to Lands in Reversion At another day the Case was argued by Popham Attorny General and he conceived That by the Lease made 2 Mar. both the former Leases as well that which was made by Henry the eighth as that which was made in Reversion by the Bishop of Bath and Wells are gone Lessee form term of years to begin at a day to come accepts a new Lease in possession which is to continue until the future Interest shall commence the future Interest is gone and in Barkings Case 2 Eliz. It was holden by Dyer and Brown that where Lessee for two years accepts a new Lease to begin two years after this new Interest of a term determines the present Interest For as the Lessor cannot contract with a Stranger for the Interest of a Term which is to have continuance during a former Term by the same reason when the first Termor will accept an Interest of a Term from his Lessor to begin at any time during his former Estate this new Interest determines the first So if one hath an Interest of a Term to begin at a day to come and he before the beginning of that Interest accepts a Lease for life his first Interest is gone The words of the Patent are All her Interest Lands and Tenements in the Parish of St. Cutbert in Wells and parcel of the possession of the late Priory of R. and if these general words will carry Lands in Reversion where other Lands in possession pass c. was the Question General words shall have a special understanding if the special Construction may agree with the proper signification and sense of the general words as the Case 2 H. 3 4. before cited and yet in the Case of a common person all manner of Debts were released thereby for that it shall be taken strongest against the party Also he conceived That the Lands in Reversion should pass as well as the Lands in possession And he said All former Leases of Record needed not to be recited c. but such Leases only which are made by the King For Subjects may have Leases of Record as by Fine Deed enrolled c. but such Leases need not to be recited For such Leases may determine without matter of Record as Surrender Re-entry c. and then to compel the King or the party to search for such Leases which might be so determined by any Act in pais should be as absurd as to compel him to search by what means and for what matter in pais such Leases are determined And he conceived That this Lease needed not to be recited which was made by King Henry the 8th For after the said Lease made the King granted the Reversion to the Bishop of Bath and Wells and his Successors and during the time that the said Land was to the Bishop It might be that the Lease was determined by matter in suit in pais by Surrender Forfeiture c. and then notwithstanding that the King obtained the Reversion after and will make a new Lease if he should be driven to recite the former Lease whereas perhaps it is determined by an Act in pais it should be very inconvenient Also here if any recital should be in the Case how might the party interested know such former Leases but by search and how long ought the party search for his search ought to have an end Non excrescere in infinitum tempus And in our Case the most equal time for search is the beginning of the last Title of the King and no further that is from the present time till the time of the Title of the King begins and in this Case the Title of the King doth begin from his repurchase from the Bishop and if the Law be such then here nothing is to be recited for no Lease is mean between the re-purchase and the new Lease For no Lease made before the re-purchase need to be recited For admit That King Henry the 3d had made a Lease of a Mannor for 500 years and afterwards granted the Reversion to an Abbot and afterwards the Mannor by suppression came again to the King and he will Grant a new Lease of the same such Lease shall be good without any recital of the Lease made by King Henry the 3d for such Lease might have been determined in the hands of the Abbot by Surrender or other matter in fact So King Edw. the 2d made a Gift in Tail and afterwards granted the Reversion to another the Grantee disseised the Tenant in Tail One who was Heir to the Grantee was attainted of Treason the Grantee died by which the Land came again to the King who made a new Patent of the same without recital of the Gift in Tail and the Patent holden good for the Cause aforesaid And in some Cases there needs no recital of Leases As if the King makes a Lease for years rendring Rent to his Receivor and for default of payment that his Estate shall cease Now if at the day the Lessee tendreth the Rent and the Receivor will not accept of it and afterwards it is found by Office that the Rent was not paid by which the Lease should be void yet he may traverse the Office and afterwards the King Grants this Rent to a Stranger there he needs not to recite the Lease for it appeareth by the Office That the same is void and yet in truth the Lease was in Esse c. and so a Lease of Record in Esse in some Case needs not to be recited So if the King Lease for years to J.S. and he assigns his Interest over and afterwards Surrenders the same to the King Now if the King will make a new Grant of it he need not recite that Lease for the Surrender of it appeareth of Record and the Assignment of it is but matter in fait which cannot be known by any search So on the other side void Leases which are not in Esse shall be cited until it appear as in the Case of Throgmorton cited before by Egerton And in such Case where the Queen granted the same to Sir T.H. the Grant ought to be in possession and not in Reversion because then void for the King had not a Reversion Also this Lease ought not to be recited for the second Patent is granted to
to prevent all acts and charges made mean by the Vendor yet it shall not relate to vest the Estate from the time of the delivery of the Deed For the Vendee cannot punish a Trespass Mean And if the Vendee hath a Wife and the Vendee dieth before Enrollment and afterwards the Deed is enrolled she shall not be endowed but here shall be some descent to take away an Entry yet the Heir shall have his age But in our Case it is otherwise for by the Waiver the Ioynture was waived ab initio And he cited Carrs Case 29 Eliz. in the Court of Wards The King granted the Mannor of C. to George Owen in Fee tenend in Socage and rendring 94 l. per annum And afterwards granted 54 l. parcel of the said Rent to the Earl of Huntington in Fee to be holden by Knight-service in Capite and afterwards purchased the said Rent in Fee And afterwards of the same Mannor enfeoffed William Carr who devised the same for the payment of his Debts And it was holden That the devise was good against the Heir And the King was not entituled to Livery or Primer Seisin And therefore the Defendant was dismissed But peradventure the Queen shall have benefit of the Act. See Cook 3 Part 30 31. Butler and Baker's Case The King gives Lands unto A. in Fee to hold by Knights-service during his life and afterwards to hold in Socage He may devise the whole For at the time when the devise took effect he was Tenant in Socage Lands holden in Knight-service are given to J.S. in tail scil to the Heirs Males of his Body the Remainder to the right Heirs of J.S. J.S. deviseth these Lands and afterwards dieth without Issue Male the same is good for two parts yet during his life he had not an Estate in Fee in possession The Father disseiseth his Son and Heir apparent of an Acre of Land holden in Chief by Knight-service in Capite and afterwards purchaseth a Mannor holden in Socage and deviseth the said Mannor and dieth his Heir within age the Devise is good for the whole and the King shall not have Wardship of any part and that in respect of the Remitter and yet it is within the words Having sole Estate in Fee of Lands holden and within the Saving Tenant in tail of an Acre of Land holden of the King in Chief by Knight-service seised of two Acres in Fee holden ut supra makes a Lease for three Lives of the Acre entailed reserving the accustomed Rent and afterwards deviseth the other two Acres in Fee and afterwards dieth seised of the Reversion and Rent The same is a good devise of all the two Acres And here is an immediate descent of the third part for the same is within the words In Possession Reversion or Remainder or any Rent or Service incident to any Reversion or any Remainder See the Statute of 34 H. 8. A Man seised of three Acres of equal value holden by Knight-service in Capite assureth one to his Wife for her Ioynture by Act executed and deviseth another to a stranger And the third to his Wife also The King in this case shall have the third part of every Acre But if the stranger waiveth the devise the King shall have the Acre to him devised and the Wife shall retain the other two Acres and it shall not go in advantage of the Heir So if he deviseth the said three Arces severally to three several persons to each of them one Acre and the one Waives the devise in one Acre The devise of the other two is good Or otherwise the King shall have the third part of every Acre c. CCCLXVII Mich. 35 Eliz. In the Common Pleas. 5 Co. 29. THe Case was An Enfant was made Executor And Admimistration was committed to another viz. A. durante minori aetate who brought an Action of Debt against the Debtor and recovered and had him in Execution and now the Executor came of full age It was moved What should be done in this Case and how the party should be discharged of the Execution for the authority of the Administrator is now determined and he cannot acknowledge satisfaction or make an acquittance Windham Although the authority of the Administrator be determined yet the Record and the Iudgment remain in force But peradventure you may have an Audita Querela But he conceived That an Administrator could not have such Action for that he is rather a Bailiff to the Enfant than an Administrator See Prince's Case 42 Eliz. Cook 5 Part 29. Which Rhodes concessit A. was bounden unto B. in an Obligation of 100 l. upon Condition to pay a lesser sum The Obligee made an Enfant his Executor and died Administration was committed durante minori aetate to C. to whom A. paid the Mony It was doubted If that payment was rightful or If the Mony ought to have been paid to both Windham Doth it appear within the Record That the Enfant was made Executor and that Administration was committed ut supra To which it was answered No. Then Windham said You may upon this matter have an Audita Querela In this Case It was said to be the Case of one Gore 33 Eliz. in the Exchequer in a Scire facias by an Assignee of a Bond against an Enfant Executor He pleaded That the Administration was committed to A. and his Wife during her minority And it was adjudged no Plea. CCCLXVIII Mich. 35 Eliz. In the Common Pleas. NOte It was the Opinion of all the Iustices Jones Rep. 243. That if Lessee for 20 years makes a Lease for 10 years that he may grant the Reversion without Deed but in such case if there be a Rent reserved there ought to be a Deed and also an Attornment if the Rent will be had And it was agreed by them all That if there be Lessee for years and the Lessor granteth the Land to the Lessee and a stranger that the Reversion shall pass without Livery or Attornment and that by the Acceptance of the Deed by him who ought to Attorn But whether he shall take joyntly or in Common or whether in a moyety or in the whole the Iustices were of divers Opinions Ideo Quaere for it was not Resolved FINIS A TABLE of the principal Matters contained in the Third Part of LEONARD'S Reports A. ABatement of Writ Page 2 4 77 92 Ex Officio Curiae p. 93 Accompt p. 38 61 63 Damages given in it p. 150 Damages given in it not expresly but the Court shall give Quoddam Incrementum p. 192 Brought by the Grantee of the King against an Executor where maintainable where not p. 197 Generally brought where good p. 230 Acquittance Must be shewed upon payment of Debts by Executors p. 3 Action upon the Case For stopping of a way p. 13 Against one for proceeding to Judgment and awarding of Execution in an inferiour Court after an Habeas Corpus awarded p. 99 Where lieth
Lease cont of Lands proper to the Dean only B. 176. Debt For foreign Mony may be demanded either by Foreign or English Names A. 41. Upon a Recognizance in nature of a Statute A. 52. B. 14. Upon a void Award is good if the Defendant do not shew that part that makes it void A. 72 73. For a nomine poenae A. 110. For a pain set in a Court Leet A. 203 204 217 218. Upon the words Covenant and Grant lieth A. 208. Where it lies before the last day of payment A. 208. For the surplusage of an Account A. 219. Lies by an Administrator against an Executor for Arrearages of an Annuity A. 224 225. Lies upon a Recognizance made before the Mayor of London A. 284. If Debt lies by the Grantee of a Rent reserved by a Lease to which Grant the Lessee attorned A. 315. Under 40 s. in the Kings Bench for Costs in a Hundred Court A. 316. Against an Heir shall be in the Debet Detinet B. 11. Debt lies upon a Judgment or Recognizance although the Plaintiff have Judgment upon a Scire Facias B. 14. For Rent lies although in the Declaration it be alledged that he entred before the commencement of his Lease B. 98. Lies for the Grantee of Post-Fines and for a Nomine poenae by the Heir B. 179. cont A. 249 250. This Action lies not but where a certain sum is agreed on C. 161. Against Baron and Feme for a Debt of the Feme must be in the Debet Detinet C. 206. For Corn in the Detinâ—t and the Plaintiff shall recover the value of the Corn C. 260. Deed. Where the Habend ' may controul the Premisses A. 11 281 318. B. 105. What is a good delivery thereof what not A. 140 152. If a primo deliberat ' or non est factum may be pleaded of a Deed enrolled A. 183 184 C. 175 176. Where in the Premisses of the Deed two things are granted Habend ' the one for years what Estate the Grantee hath A. 281 282. Raisure of a Deed does not avoid it if it be in a part not prejudicial to the party who would avoid it A. 282. Indenture between A. of one part and B. and C. his Wife and their Children A. 287 288. Must be pleaded sealed and delivered or by words tantamount A. 310. In Indentures the intention of the parties may be argued Deeds Poll shall be taken strongest against the Grantor A. 318. B. 47 192. None can take by Indenture but those who are party to it A. 287 288. B. 1. C. 34. The effect and meaning of them regarded where the words are doubtful B. 17 219 151. Where a Deed may have quasi two deliveries B. 192. A Deed once perfectly executed as by enrolment c. cannot pass any thing by Livery C. 16 125. Actual indenting and both parties Seals mentioned to be put makes an Indenture C. 16. Where a Deed in the Premisses leaseth Lands to one Habendum to his Executors and Assigns for 40 years what Estate the Lessee hath C. 32 33 34. The date of a Deed not material C. 100. Demand See Request The King need not demand a Rent to avoid a Lease A. 12. B. 134. C. 125. A Legacy not payable without demand A. 17. Rent payable at Michaelmas or within the space of 12 days prox post aliquod festorum vel dierum when it is demandable A. 142. The difference of demand in a Writ De advocatione duarum partium Ecclesiae duabus partibus Advoc Ecclesiae A. 169. What is demandable in a Writ of Entry A. 169 170. Whether demand at one day for Rent due several days before be good A. 190 191 305. Whether a sum in gross must be demanded as Rent A. 269. The manner to make a demand of a Rent A. 305. He who demands Rent as Attorny need not tell his name nor shew his authority C. 224. Demurrer To Evidence in Ejectione Firme A. 269. All matters well pleaded are confessed by Demurrer C. 200. Upon Demurrer to a Challenge there neeeds no Serjeants hands C. 222. Departure What is what is not A. 32. Count of a Lease without Deed no Departure by Replication to say the Lease was made by Deed A. 156 204. C. 203. Ejec vers 5. One pleads to the Issue the others plead specially no Departure for the Plaintiff to deduce a Title to himself and say that he was seised until by the 4 disseised B. 199. First to make a Title by Common Law and reply a Custom to uphold it is a Departure C. 40. Devastavit What Sheriff may retorn it and what Sheriff is estopped to retorn it B. 67. C. 2. If Executors release a forfeited Bond of 100 l. and receive only 50 l. the whole is Assets C. 53. It is a personal Tort and the Executors of the Executors shall not be chargeable with the first Executors Devastavit C. 241. Devise See Legacy That Executors shall sell Lands who sell by Fine A. 31. C. 119. If such Executors may â—ell by parcels A. 34 60 260. The construction of an Habendum in a Devise A. 57 58. What shall be a Devise in tail for life or in see A. 57 58. B. 69. C. 55. That his Son and an Executor shall take the profits until another comes of Age gives the Son see A. 101. C. 55. To the discretion of the Devisee A. 156 224 283. B. 69. That Executors shall sell a Reversion who sell by Parol yet good and the Devisee is in by the Will A. 148. C. 119. To three Sons and if any die the Survivor to be his Heir how adjudged A. 166 258 259. C. 262. All my Lands and Tenements if it passeth a Reversion after a Lease for life A. 180 181. If by the Stat. of Wills an Estate pur auter vy may be devised A. 252. A Use may be raised by Devise and the Consideration is presumed by Law A. 254 257. If the Devisee die in the life of the Devisor the Heir of the Devisee shall take nothing A. 254. Of Capite Land and Soccage A 267. B. 41 42. C. 267. Vide the Statutes 32 34 H. 8. To A. if she do not Marry Remainder in tail A. 283. That if my Son A. die without Issue that then my Sons in Law shall sell how adj A. having a Son who dies without Issue A. 285 286. Feoffment to the Uses in his Will which deviseth that his Feoffees shall be seised to Uses a good Devise A. 313. That Lessee for years shall hold after the Devisors death for 30 years accounting the Remainder of the first Term how adj B. 33 34. Devise to A. may be helped by Averment B 35. C. 79. To the Father and his eldest Issue Male B. 35. Things individual cannot be devised within the Statute of Wills If part be Soccage and part Capite B. 41 42. That his Lands shall be sold for payment of his Debts the Executor shall sell 43 220. Devise that his
Debt against the Debtors Executor A. 320. They may have Error of an Utlary in Felony against their Testator A. 325. Good resolutions for their pleading of Statutes Judgments c. A. 328. 329. What Debts must be first paid 328 329. Are liable to account to the King. B. 34. The manner of prosecuting a Devastavit in a forein County against an Executor B. 67. If they plead plene administravit specially by paying Debts upon Bonds they must shew how the Bonds are discharged B. 155. What intermeddling with the deceaseds Estate makes one Executor of his own wrong B. 224. Conditional if he pay all Debts owing to the Testator to the other Executor C. 3. If Executors enter or claim generally it shall be taken to be as Executors and not in any other capacity C. 36. It is said that a promise cannot be good to bind an Executor if he hath not Assets C. 67. Sale of Goods by an Infant Executor is good and binds him C. 143. One Obligor makes the Surety his Executor who pays the Mony generally Quaere C. 197. How he must be sued who being Executor of his own wrong takes Administration C. 197 198. One Executor cannot give the Goods of the Testator to the other for nothing passes by such Gift C. 209. Release of one Executor binds both C. 209. Executor of Executor not chargeable with a Devastavit made by the first Testator C. 241. Exemption A Juror sworn at the Bar notwithstanding he produced his Charter A. 207. Ex gravi querela In London in what case A. 267. Ex parte talis In what case it lieth B. 93. Exposition of Words Dedi Concessi in a Deed A. 29. Where the word Or in a Deed shall be copulative e converso A. 74 244. Of the word eundem in a Grant A. 15. Divisus dividend in an original Writ A. 169. Of Adtunc A. 172. I agree to surrender my Lands spoken by Tenant at will A. 178. Of the word Tenement in Grants A. 188. Of the word Covenant in a Bill of Debt A. 208. Uterque in Indictments A. 241. Quousque A. 244. Suus A. 271. Right A. 271. Factum implies sealing and delivering A. 310. Exponere ad culturam gives no Estate in the Land A. 315. In portum ad portum all one A. 335. Covenant with two quo ibet eorum B 47. In manner aforesaid is a Devise B. 69. By the word Licet may be made a good allegation B. 108. C. 67. A mile is accounted in Law 1000 paces and every pace 5 foot B. 113. Assurance to what Conveyances it doth relâ—te B. 130. Selion of Land is uncertain B. 162. Puer if it relates to both Sexes B. 217 218. Firma C. 12 13. Whether the word Mille may be joyned to a Genitive or Accusative Case C. 94. Tenementum is of an incertain signification C. 102. Of the word until as a Lease until Michaelmas includes the Feast day C. 211 Curtillage quid C. 214. Where a word in the singular number includes the plural C. 262. Immediate C. 273 274. Term of years C. 112. Extent If it be well executed though not retorned A. 280. Executed though not retorned in what case it is a good Execution B. 12 13. Lessee for years may pay the Rent to the Extendor C. 113. Scire facias to remove the Conusee C. 155. If the Conusee can in any case be removed without a Scire facias C. 155 to 158. What kâ—nd of Interest is left in the Conusor during the Extent C. 156 157. If an Extent be avoided by a Prior Statute the puisne Conusee may enter when the other is satisfied C. 239. If a Debt be assigned to the King he shall have all the Conusors Land C. 240. By the Statute of Acton Burnel the Extendors are to take the Lands if they appraise too high and must pay the Debt statim But when that statim means vi C. 274. Extinguishment Of Rent by Entry what act amounts thereto A. 110. Estate for life extinct by a Fee coming to the same person A. 174. A Prescription of non decimand in a spiritual Person is not extinguished by the Lands coming to lay hands A. 248. If a Remainder depending upon an Estate for life escheat the Seigniory is extinct presently A. 255. Where an Action once suspended is extinguished A. 172 320 330 331. Of a Use A. 257 259. A Rent granted in Fee and that it shall be suspended during the nonage of every Heir A. 266. Executor of the Debtee takes to Wife the Debtor how adjudged A. 320. Where personal things once suspended shall be revived B. 84. Lessor mortgages his Reversion to the Lessee in Fee the Term is utterly extinct C. 6. Where a Warrant is suspended and may be revived C. 10 11. A Term for years comes to the Lessor as Executor and he dies the Term is revived C. 210 111. If Unity of possession in the King of Abbey Lands extinguish a Common C. 128. If Devisee of a Term remainder over purchase the Fee the Term is not merged C. 92 93. Condition of re-entry is not suspended by assigning part of the Land for part of the Term C. 221. By destroying a Reversion a Rent depending thereon is extinct C. 261. A Mesnalty extinct by the Lords purchasing the Tenancy C. 261. Extortion Against whom it lies and the several Statutes against it A. 295. C. 268. It must be set sorth in the Judgment whether any Fee or no Fee was due C. 268. F. Faux Imprisonment See Iustification FFaux Imprisonment lies if a Capias be made out of the Courts at Westminster to a County Palatine B. 89. Faux Iudgment Lies upon a Justicies not Error B. 34. Upon a Writ of Right Close prosecuted in nature of an Assise C. 63. Fee-simple Where it may be created without the word B. 27. C. 216. Devise that the elder Son shall take the Profits until the younger come of Age is a Fee conditional in the eldest C. 216. Feoffment Vide Vses Good by the words Bargain and Sell with Livery A. 25. Fine and Amerciament Upon alienation without Licence A. 8. B. 55 56. In what case a Vill shall be amerced for the escape of a Felon A. 107. C. 207. If a Pain upon a Presentment must be afferred A. 203 204 217 242. In what case a Steward may Fine in a Court-Leer A. 217 242. Grantee of Post-Fines if he may distrain for them and sell the distress A. 249 250. The manner of pleading in Trespass where the Defendant-justifies for such Fine A. 249 250. By what words such Fines pass A. 249 250. If a Defendant make several defaults in one Suit he shall be several times amerced B. 4 5. Fine set in a Court for a contempt in not retorning of Cattle in a Replevin B. 174. Debt lies for a Post-Fine by the Kings Grantee B. 179. cont C. 56 234. A Defendant may be several times amerced for several defaults in one Suit B.
Mich. 29 El. C.B. p. 168. C. 219 Weshborn and Mordants Case Mich. 29 Eliz. B. R. p. 174. C. 225 Williams and Linkfords Case Trin. 29 Eliz. B.R. p. 177. C. 229 Welcot and Powells Case Pasch 30 El. B.R. p. 206. C. 263 Wigmore and Wells Case Pasch 30 El. B. R. p. 206. C. 264 Willoughbies Case Trin. 30 Eliz. B. R. p. 216. C. 285 Wood and Payns Case Trin. 31 El. B.R. p. 228. C. 306 Sir Walter Wallers Case Trin. 32 Eliz. Exchequer p. 241. C. 333. p. 259 C. 345 Woodward and Baggs Case Hill. 32 El. B. R. p. 257. C. 341 Witherington and Delabars Case Mich. 33 Eliz. B. R p. 268. C. 360 Y. YOung and Ashburnhams Case Hill. 29 Eliz. C. B. p. 161. C. 210 Yates Case Trin. 31 Eliz. B.R. p. 231 C. 312 THE THIRD PART OF THE REPORTS OF Several Excellent Cases Argued and Adjudged in the several COURTS of LAW at Westminster In the Time of the Late Queen ELIZ. From the First to the Five and Thirtieth Year of her Reign In the Time of Edw. the Sixth I. 6 Edw. 6. In the Common Pleas. A Man had a Warrren in Fee extending into three Towns Benlow's Rep. 12. Owen Rep. 10. 1 And. 26. 13 Co. 57. 1 Inst 148. a. 7 Co. 23. b. Goldb 44. and Leased the same by Deed to another rendring Rent And afterwards granted by Deed the Reversion of the whole Warren in one of the said Towns to another and the Lessee attorned It was holden by all the Iustices in the Common Pleas That neither the Grantor nor the Grantee should have any part of the Rent during the same Term Because no such Contract can be apportioned II. 6 Edw. 6. In the Common Pleas. A Man by Deed Indented 1 And. 27. Bargained and sold Land unto another in Fee and Covenanted by the same Deed to make to him a good and sufficient Estate in the said Land before Christmas next And afterwards before Christmas the Bargainor acknowledged the Deed and the same is enrolled It was the Opinion of all the Iustices of the Common Pleas That by that Act the Covenant aforesaid was not performed For the Bargainor in performance of the same ought to have levied a Fine made a Feoffment or done other such Acts. III. 6 Edw. 6. In the Common Pleas. 1 And. 32. IN Dower the Tenant made default at the Summons and now at the Grand Cape he came and said That he could not come because he was in great infirmity at the time of the Summons so as he could not appear It was the Opinion of the whole Court That that matter should not save his Default because it cannot be tryed as creit de Eue and Imprisonment may be IV. 6 Edw. 6. In the Common Pleas. 1 And. 32. DEbt against Executors who pleaded Riens enter Maynes which was found against them The Plaintiff sued forth a Writ of Execution Vpon which the Sheriff retorned Nulla bona Testatoris within the County It was the Opinion of the Court That the same was a good Retorn for it may stand with the Verdict for it may be that they have Assets in another County See 3 H. 6. 11. Where the Retorn is general Quod non habent Executores aliqua bona Testatoris that it was holden insufficient but here in this Case the Retorn is special scil in the same County In the Time of Queen Mary V. 1 and 2 Philip and Mary In the Common Pleas. 1 And. 31. TEnant in tail had Issue two Sons and enfeoffed his younger Son and died The younger Son died without Issue leaving his Wife priviment ensient with a Son the elder Brother entred It was holden in this Case That he was Remitted and although that afterwards the Son was born yet the same should not avoid the Remitter VI. Stapleton and Truelocks Case Mich. 1 and 2 Phil. and Mary More Rep. 11. WIlliam Stapleton Executor of John Scardenyll brought an Action of Debt against John Truelock Administrator of the Goods of William Truelock who died Intestate upon a Bill sealed The Defendant demanded Oyer of the Testament By which it appeared That the said Scardenyll had made the Plaintiff and the said William Truelock his Executors And in the said Will was this Clause I Will That my Friend William Truelock shall pay to my other Executor all such debts as he oweth me before he shall meddle with any thing of this my Will or take any Advantage of this my Will for the discharge of the same debts for that I have made him one of my Executors And upon this matter It was clearly Resolved that the said William Truelock could not Adminster nor be Executor before he had paid the debts And the Defendant said That the said William Truelock in his life had paid unto his Co-Executors all such debts which in vita sua debuit to the said Scardenyll And also that the said William Truelock in his life time had Administred the Goods of Scardenyll with his Co-Executors And in this Case Iudgment was given for the Plaintiff and that for default of pleading For the Defendant ought to have shewed Acquittances of the payment of the debts to his Co-Executors and also ought to have shewed in Certainty what debts they were VII Hecks and Tirrell's Case 3 and 4 Phil. and Mary DEbt by Hecks and Harrison against Tirrell as Heir Who pleaded Nothing by Descent The Plaintiff Replyed 1 And. 28. Assets at such a place within the Cinque-Ports And so it was found by a Iury of the County adjoyning and Iudgment given of the moyety of his Lands aswell those by descent as by purchase And a Writ awarded to the Constable of Dover to extend the Lands within the Cinque-Ports But it was said That first the Plaintiff ought to have a Certiorari to send the Record into the Chancery and from thence by Mittimus to the Constable of Dover VIII The King and Due and Kirleys Case 4 and 5 Phil. and Mary THe King and Queen brought a Writ of Disceit against Due and Kirley and declared More Rep. 13 That one Colley was seised of certain Lands in Fee and held the same of the King and Queen as of their Mannor of Westbury the which Mannor is Ancient Demesne and so seised levies a Fine thereof to the said Due Sur Conusans de Droit come ceo c. Due rendred the Land to Colley for life the Remainder over to Kirley in Fee Colley died Kirley entred as in his Remainder Kirley pleaded That the Land whereof c. is Frank Fee c. Vpon which they are at Issue Which Issue depending and not tryed Due died It was moved in this Case That the Writ might abate But that was denyed by the Court. For this Action is but Trespass in its nature for to punish this Disceit and no Land is to be recovered but only the Fine Reversed IX Eliot and Nutcombs Case Mich. 4 and 5 Phil. and Mary
In the Common Pleas. 1 And. 27. THe Case was That the Bishop of Exeter leased certain Lands in the County of Devon for years rendring Rent payable in Exeter aforesaid with Clause of Re-entry and the Bishop of Exeter had a Palace in Exeter aforesaid It was the Opinion of the Iustices in this Case That the Rent ought to be demanded at the said Palace and not elsewhere And if that the Lessee come to the Common Gate of the said Palace and there tender the Rent it is a good tender without more be the Gate shut or open notwithstanding that the Bishop be within the Palace and that neither he nor any of his Servants be at the Gate for to receive it for the Lessee is not tyed to open the Gate of the Palace if it be shut nor to enter into the Palace if it be open X. Mich. 4 and 5 Phil. and Mary In the Common Pleas. COpyhold Land was surrendred to the use of the Wife for life the remainder to the use of the right Heirs of the Husband and Wife The Husband entred in the right of his Wife It was the Opinion of the Iustices in this Case That the remainder was executed for a Moyety presently in the Wife and the Husband of that was seised in the right his Wife and the Wife dying first that her Heir should have it 1 Roll. Lane and Pannel's Case But if the Husband had died first his Heir should have had one Moyety XI Joscelin and Sheltons Case Mich. 4 and 5 Phil. and Mary In the Common Pleas. More Rep. 13. IN an Action upon the Case the Plaintiff declared That the Defendant in Consideration that the Son of the Plaintiff would marry the Daughter of the Defendant assumed and promised to pay to him 400 Marks in 7 years next ensuing by such portions And upon Non Assumpsit pleaded It was found for the Plaintiff It was Obiected in Arrest of Iudgment That one of the said 7 years was not incurred at the time of the Action brought c. and that appeared upon the Declaration so as the Plaintiff had not cause of Action for the whole Mony promised And for that cause the Writ was abated by the Court by award although it was after Verdict See Br. Title Action upon the Case 108. XII 2 and 3 Phil. and Mary In the Common Pleas. IN an Assise against 4. they were at Issue upon Nul Tenant del Franktenement nosme en le brief And it was found by the Assise That two of them were Disseisors and two Tenants And after Verdict and before Iudgment one of those who were found Tenants died And that was moved in Arrest of Iudgment But it was not allowed of by the Court Because the parties had not day in Court to plead it But it was said That after Iudgment given a Writ of Error lieth In the Time of Queen Elizabeth XIII Canons Case 1 Eliz. In the Common Pleas. UPon an Evidence to a Iury in the Common-Pleas 1 Roll. 839. Vpon an Issue there this Deed was given in Evidence viz. Sciant praesentes futuri Quod Ego Richardus Canon filius haeres Richandi Canon Dedi Concessi hac praesenti carta mea Confirmavi Willielmo Compton Militi Omnia Terr Tenementa c. ad usum mei praed Richardi Joannae uxoris meae pro termino vitae absque impetitione Vasti ac etiam rectorum haered mei praefat Richardi assignatorum meorum post decessum mei praefat Richardi Joannae uxoris meae Et si contingat me praefat Richardum obire sine exitu de Corpore meo procreato Tunc Volo quod omnia dict Terr Tenementa remaneant Tho. fratri meo rectis haeredibus de Corpore suo procreatis haeredib assignat eorum And it was the Opinion of the Iustices That a good Estate tail was by that Deed limited to the said Richard in use after the death of his Wife XIV Holt and Ropers Case 2 Eliz. In the Common Pleas. IN a Replevin by Holt against Roper the Case was J. Abbot of W. Leased to T.M. Knight a Close of Land in B. for 44 years Post 242. 243. who thereof possessed was attainted of misprision of Treason and so forfeited to the King who seised the same The Abbot and his Covent surrendred 31 H. 8. the King Leased the same to Roper for 21 years and died King Ed. 6th in the fourth year of his Reign Leased the same to one Philips To have and to hold after the Term to T.M. ended for 21 years Roper surrendred to Queen Mary who Leased the same again to Roper for 30 years In this Case It was adjudged That the Lease made to Phillips was utterly void for that the King was deceived in his Grant For the Lease made to F.M. was long time before determined by extinguishment in the Person of the King who had it by forfeiture upon the Attainder of T.M. and the Statute of 1 E. 6. Cap. 8. shall not help that Lease notwithstanding the Non-recital or Mis-recital of Leases made before For here is not matter of recital but matter of Estate and Interest which is not well limited for the Commencement of it i. the Lease to Phillips For there is not any certainty of the Commencement of it For that Lease cannot begin after the Surrender of Roper for the words of the Limitation of the beginning of it cannot serve to such Construction XV. 2 Eliz. In the Common Pleas. A Term for years is devised to A. The Executors of the Devisor entred into the Land devised to the use of the Devisee It was the Opinion of the Court That the same was a sufficient possession to the Devisee XVI 3 Eliz. In the Common Pleas. TWo Coparceners were of a Reversion the one of them granted his Interest in it by Fine to another It was holden in that Case That the Conusee should have a Quid juris clamat for a Moyety of the said Reversion XVII Mich. 4 Eliz. In the Common Pleas. THe Lessor mortgaged his Reversion in Fee to the Lessee for years and at the day of Mortgage for payment of the Mony he paid the Mony It was holden in this Case That the Lease for years was not revived but utterly extinct XVIII Mich. 4 Eliz. In the Common Pleas. J.N. Cestuy que use in tail 14 H. 8. by Indenture between him on the one part and J.S. of the other part In Consideration of a Marriage between his Son and Heir apparent and Joan Daughter of the said J.S. to be had Covenanted with the said J.S. That neither he nor any of the Feoffees seised to his use have made or hereafter shall make any Estate Release Grant of Rent levy any Fine or do any other Incumbrance whatsoever of any of his Mannors Lands c. But that all the said Mannors c. shall immediately descend or remain to his said Son and the Heirs
Eliz. In the Common Pleas. NOte It was said by Dyer and Brown Iustices That if a Man deviseth by his Will to his Son a Mannor in tail 2 Cro. 49. Yelv. 210. and afterwards by the same Will he deviseth a third part of the same Lands to another of his Sons they by this are Ioynt-Tenants And if a Man in one part of his Will deviseth his Lands to A. in Fee and afterwards by another Clause in the same Will deviseth the same to another in Fee they are Ioynt-Tenants XXVIII Drew Barrentines Case Mich. 8 Eliz. In the Common Pleas. THe Case was Drew Barrentine and Winifred his Wife were seised of the Mannor of Barrentine which is Ancient Demesne and holden of the Lord Rich as of his Mannor of Hatfield levy a Fine thereof Sur Conusans de droit c. by which Fine the Conusee rendreth the said Mannor to the said Drew and Winifred in special tail the Remainder to Winifred in tail the remainder to the Countess of Huntington in tail the remainder to the Heirs of the body of Margaret late Countess of Salisbury the remainder to the Queen in Fee It was moved by Bendloes Serjeant If the Lord Rich being Lord of the Mannor might reverse this Fine by a Writ of Disceit and so Recontinue his Seignory and he said That he might and thereby all the Estates which passed by the Fine should be defeated even the remainder which was limited to the Queen for by it the Fine shall be avoided to all intents Welsh Iustice Such a Writ doth not lie For by the remainder limited to the Queen by the Fine all mean Signories are extinct Then if it be so Disceit doth not lie If the Tenant in Ancient Demesne levieth a Fine and afterwards the Lord Paramount who is Lord of the Mannor doth release to the Conusee and afterwards the Lord of the Mannor brings a Writ of Disceit he gains nothing by it And if the Tenant in Ancient Demesne levieth a Fine of it and dieth and the Heir confirmeth the Estate of the Conusee and afterwards the Lord by a Writ of Disceit reverseth the Fine yet the Estate of the Conusee shall stand But all these cases differ from our case For in all those cases another act is done after the Action given to the Lord but in our case the whole matter begins in an instant quasi uno flatu and then if the principal be reversed the whole is avoided For the whole Estate is bound with the Condition in Law and that condition shall extend as well to the Queen and her Estate as to another And if Lands is Ancient Demesne be assured to the King in Fee upon Condition Now during the possession of the King the nature of the Ancient Demesne is gone but if the Condition be broken so as he hath his Land again it is Ancient Demesne as it was before and so the Estate of the Queen is bounden by a Condition in Law. XXIX Mich. 8 Eliz. In the Dutchy-Chamber NOte It was holden by Welsh in the Dutchy Chamber That whereas King Edw. the 6th under the Seal of the Dutchy had demised Firmam omnium tenentium at Will Manerii sui de S. That nothing but the Rent passed and not the Land for Firma signifies Rent as in a Cessavit de feodo firmae But the Clerks of the Court said That their course had always been to make Leases in such manner But Welsh continued in his Opinion as aforesaid And further he said That this was not helped by the Statute of Non-recital or Mis-recital c. for that here is not any certainty For sometimes Firma signifies Land sometimes Rent XXX Mich. 8 Eliz. In the Common Pleas. THis Case was holden for Law by the whole Court Two Coparceners are and one of them dieth her Heir of full age she shall not pay a Relief for if she should pay any at all she should pay but the moyety and that she cannot do for a Relief cannot be apportioned for Coparceners are but one Tenant to the Lord. XXXI 8 Eliz. In the Common Pleas. AN Action upon the Case was brought for stopping of a Way The Plaintiff declared That the Duke of Suffolk was seised of a House in D. and Leased the same to the Plaintiff for life And that the said Duke and all those whose Estate c. have used time out of mind c. to have a Way over the Lands of the Defendant unto the Park of D. to carry and recarry Wood necessary for the same House from the said Park to the same House and further declared That the Defendant Obstupavit the Way It was moved by Carns That upon this matter no Action upon the Case lieth but an Assise because that the Freehold of the House is in the Plaintiff and also the Freehold of the Land over which c. is in the Defendant But if the Plaintiff or Defendant had but an Estate for years c. then an Action upon the Case would lie and not an Assise All which was granted by the Court. Post 263. It was also holden That this word Obstupavit was sufficient in it self scil without shewing the special matter how as by setting up any Gate Hedge or Ditch c. for Obstupavit implyes a Nusans continued and not a personal disturbance as a Forestaller or in saying to the Plaintiff upon the Land c. that he should not go there or use that Way for in such cases an Action upon the Case lieth But as to any local or real disturbance Obstupavit amounts to Obstruxit And although in the Declaration is set down the day and the year of the Obstruction yet it shall not be intended that it continued but the same day for the words of the Declaration are further by which he was disturbed of his Way and yet is and so the continuance of the disturbance is alledged And of such Opinion also was the whole Court. Leonard Prothonotary said to the Court That he had declared of a Prescription habere viam tam pedestrem quam equestrem pro omnibus omnimodis Cariagiis and by that Prescription he could not have a Cart-way for every Prescription is stricti juris Dyer That is well Observed and I conceive that the Law is so and therefore it is good to prescribe habere viam pro omnibus Cariagiis generally without speaking of Horse-way or Cart-way or other Way c. XXXII Stowell and the Earl of Hertfords Case Mich. 8 Eliz. In the Common Pleas. IN a Formedom in the Remainder by John Stowel and R.R. against the Earl of Hertford the Case was That Lands were given to Giles Lord Daubeney in tail the remainder to the right Heirs of J.S. who had Issue two Daughters Agnes and Margaret and died The Donee died without Issue and the Demandants as Heirs of the said Agnes and Margaret brought a Formedom in the Remainder And it was awarded by the Court That the Writ should
See the Case 14 Eliz. in Dyer L. Mich. 15 Eliz. In the Common Pleas. Tottenham and Bedingfields Case Owen Rep. 35 83. IN an Accompt by Tottenham against Bedingfield who pleaded That he never was his Bailiff to render accompt the Case was That the Plaintiff was possessed of a Parsonage for Term of years and the Defendant not having any Interest nor claiming any Title in them took the Tythes being set forth and severed from the 9 parts and carried them away and sold them Vpon which the Plaintiff brought an Action of Accompt And by Manwood Iustice the Action doth not lie for here is not any privity for wrongs are always done without privity And yet I do agree That if one doth receive my Rents I may implead him in a Writ of Accompt and then by the bringing of my Action there is privity and although he hath received my Rent yet he hath not done any wrong to me for that it is not my Mony until it be paid unto me or unto another for my use and by my Commandment and therefore notwithstanding such his Receipt I may resort to the Tenant of the Land who ought to pay unto me the said Rent and compel him to pay it to me again and so in such case where no wrong is done unto me Hob. 32â— I may make a privity by my consent to have a Writ of Accompt But if one disseiseth me of my Land and taketh the profits thereof upon that no Action of Accompt lieth for it is meerly a wrong And in the principal case so soon as the Tythes were severed by the Parishioners there they were presently in the Plaintiff and therefore the Defendant by the taking of them was a wrong doer and no Action of Accompt for the same lieth against him And upon the like reason was the Case of Monox of London lately adjudged which was That one devised Land to another 1 Len. 266. and died and the Devisee entred and held the Land devised for the space of 20 years and afterwards for a certain cause the Devise was adjudged void and for that he to whom the Land descended brought an Action of Accompt against the Devisee And it was adjudged That the Action did not lie Harper contrary For here the Plaintiff may charge the Defendant as his Proctor and it shall be no Plea for the Defendant to say That he was not his Proctor no more than in an Accompt against one who holdeth as Gardian in Socage it is no plea for him to say that he is not Prochein Amy to the Plaintiff Dyer The Action doth not lie If an Accompt be brought against one as Receiver he ought to be charged with the Receipt of the Mony and an Accompt doth not lie where the party pretends to be Owner as against an Abater or Disseisor but if one claimeth as Bailiff he shall be charged and so it is of Gardian in Socage Latch 8. And it was agreed That if a Disseisor assign another to receive the Rents that the Disseisee cannot have an Accompt against such a Receivor LI. 15 Eliz. In the Court of Wards NOte That this Case was ruled in the Court of Wards That where Tenant of the King of Lands holden by Knights Service in chief made a Feoffment in Fee of the same Lands to the use of himself for life and afterwards to the use of his younger Son in tail the remainder to the right Heirs of the Feoffor and died his eldest Son within age That the Queen should have the Wardship of his body and of the third part of the Land and when the eldest Son comes of full age that the younger Son should sue Livery and pay Primer Seisin according to the rate and value of the whole Land viz. of the third part as in possession and of the two parts as a Reversioner For the remainder to the right Heirs of the Feoffee is in truth a Reversion for the Fee simple was never out of him because there is not any consideration as to that nor any Vse expressed And because Livery shall not be sued by parcels the younger Son shall not be suffered to sue Livery of the third part presently and respite the residue as to the two parts in Reversion until the Reversion fall but he shall sue Livery presently as well of the two parts in reversion as of the third part in possession and if the eldest Son had been of full age at the time of the death of his Father the younger Son should pay Primer Seisin as to the third part the whole value of it for one year as in possession and as to the two parts the moiety of the value of a year as of a Reversion LII Oliver Breers Case 15 Eliz. In the Court of Wards OLiver Breer who was Tenant in Chief by Knights Service made a Feoffment in Fee to the use of himself for life and afterwards to the use of A. his eldest Son and Heir for life and after to the use of the first begotten Son of the said A. in tail and afterwards to the use of the second Son of the said A. c. and for default of such issue to the use of the right Heirs of the Feoffor Oliver died the said A. his Son being of full age It was holden by the Council of the Court of Wards That he should pay for his first Primer Seisin a third part as in possession and two parts as a reversion See the Case before LIII Mich. 15 Eliz. In the Kings Bench. NOte 1 Roll. 626 This Case was moved to the Iustices in the Court of the Kings Bench A Man had Issue two Daughters by divers Women and being seised of Lands in Fee he made his Will and by the same Devised That his Wife should have the moyety of his Lands for years and that his eldest Daughter at the day of her Marriage should enter into the other moyety his eldest Daughter married and died without Issue And the Question was Whether her Vncle should have that moyety or the fourth part of the whole Land. Catline conceived and said That when the Devise which was made to the eldest Daughter that she might enter after certain years is not the Inheritance in her presently and the other words void So he said here That it is not a purchase in the eldest Daughter but both the Daughters should enter in Common as one Heir to their Father until the Marriage and then the Inheritance which was once settled in them should not be removed Southcote Iustice said There are no words of Limitation of any Estate that the Daughter should have after the Marriage and therefore the Devise was void and if he had limited that the Daughter after Marriage should have it for life the Fee-simple is vested in her before and then she cannot have it for life And he said That if a Lease be made to the eldest Daughter for years by the Father and afterwards
the Land descends to her and her Sister as unto one moyety of the Land the Lease is determined but not as to the other moyety Whiddon Iustice Where a Devise is for the benefit of a stranger there the Heir shall take by the Devise and not by descent As if a Lease be made for years the remainder to the Heir there the Heir shall take the Land by the Devise Catline She hath it be Descent and not by the Devise But if he deviseth the Land to the Heir in tail with this That he shall pay a certain sum of Mony unto another there the Heir shall take by the Devise for the benefit which may accrue to the stranger and not by descent for otherwise the Will should not be performed But where the Estate of the Heir is altered by the Will nor any benefit doth accrue unto another after that the Lands come to the hands of the Heir in that case he shall have the Land by descent And so here in this case for as much as the Devise is That the Daughter shall enter they both being but one Heir to their Father shall have the Land by descent and the words of the Will That he shall enter into the moiety shall be void as if the Devise had been to the Heir for life there the same is void because the Fee-simple which descendeth to her doth drown the particular estate for life And therefore in the principal case here the Vncle shall have but the moyety of the moyety which is so devised and the other Sister shall have the other moyety of the Land and as to that moyety which is devised to the Wife for years the same shall enure according to the Common Law that the Vncle shall have the moyety of that and the other Sister the other moyety LIV. Mich. 15 Eliz. In the Common Pleas. THis Case was moved to the Court by Lovelace Serjeant A Man Covenants with another to make and execute an estate of such Lands as should descend to him from his Father and Grandfather by a certain day the same Lands to be of the clear yearly value of 40 Marks And the Question which he moved to the Iustices was That if the party had more Lands which came to him from his Grandfather and Father than did amount to the yearly value of 40 Marks If he was to make assurance of all the Lands or of so much thereof only as amounted to the value of 40 Marks And Manwood Iustice conceived That he should make assurance of Lands only which were of the value of 40 Marks per annum For the words such which do not go so largely as if he had said All my Lands which shall descend or to me be descended for then the yearly value were but a demonstration and all his Lands ought to be assured But here the Intent of the Indenture cannot be taken otherwise than to have but an Assurance of so much Land as if he had said Of such Lands and Tenements as were my Grandfathers and Fathers amounting to 40 Marks by the year for there by those words he shall have but 40 Marks by the year Lovelace It hath been taken That where the Queen made a Lease of all her Lands in such a Town amounting to the yearly value of 40 l. that that valuation is not a demonstration and shall not abridge the Grant precedent to have all in the Town which should be of the value of 40 l. but her Grant shall be taken and construed according to the words precedent Manwood The Common case of assurance upon a settlement of Marriage is That he shall stand seised of so much of his Land as shall be of the clear yearly value of 40 Marks If the marriage take effect The Question hath been If they to whom the assurance is made may enter into any part of the Land at their election and take that which is the best Land to the value of 40 Marks per annum and hold the same in severalty or if they shall be only Tenants in Common with the other And also it hath been a Question Whether they may choose one Acre in one place and another Acre in another place and so through the whole Land where they please because the Grant shall be taken strong against him that granteth But I conceive that it should be a hard case to make such Election of Acres But it was said by some Serjeant at the Bar That if a Man granteth to another to take 20 Trees in his Lands that the Grantee may cut down one Tree in one place and another in another place Manwood agreed that Case but of the other Case the Court doubted of it The principal case was adjourned LV. Vernon and Vernons Case Mich. 15 Eliz. In the Common Pleas. NOte That in the Case of Dower between Vernon and Vernon and the Argument of it the Plaintiff would have been Nonsuit Dyer Iustice said It should be an ill President if a Nonsuit should be after Demurrer And therefore he said That for his part he would not agree that any Nonsuit should be upon it but he said he would be advised and take better Consideration of it If the Nonsuit should be awarded or not And afterwards at another day Manwood and Dyer took a difference where the Nonsuit is the same Term and where in another Term and said It is like unto the Case where a Man would Wage his Law and is present ready to do it that there the Plaintiff cannot be Nonsuit because it is in the same Term but he shall be barred But in another Term afterwards he might be Nonsuit if the Defendant take day over to wage his Law until another Term and so they said it should be in this case LVI Sir Peter Philpots Case Mich. 15 Eliz. In the Common Pleas. THis Case was moved by Meade Serjeant to the Iustices of the Court of Common Pleas viz. That Sir Peter Philpot Knight seised in Fee of divers Mannors and Lands suffered a Recovery and made a Feoffment thereof unto divers persons To the use of himself for life the remainder to his right Heirs And after the Statute of 32 H. 8. of Wills He devised all his said Mannors and Land to his Wife for life and it was expressed in his Will That he could not devise all his Lands by reason of the Statute of 32 H. 8. that his Will was That his Wife should have so much which might be devised by the Laws of the Land And there was another Clause in the said Will That his Feoffees should stand seised of the same Mannors and Lands after the death of his Wife To the use of one Hurlock and others for years for the payment of his Debts and for the raising of Portions for the preferment of his Daughters in Marriage And further by his said Will he willed That if the Law would not bear it That Hurlock and the others should have the Interest Then he
but are moved for the pleasure of the parties What Resolutions shall we make by speaking at random Manwood As to the first Exception I nor my Brother Jeffery do not doubt of it but that the Plaint was good notwithstanding that it is not shewed that he was idonea persona for the Law shall intend him so to be until the contrary he shewed And so it is of a grant of an Annuity as long as he se bene gesserit the Law shall intend that he carrieth himself well until the contrary be shewed But as to the other Point That he doth not shew the death of the first Bishop my Brother Jeffery doubted of it but I make no doubt of it for that is but a Recital and the Plaintiff makes his title but from Bishop Alley and therefore that is not material nor parcel of his Plaint whether the predecessor of Alley be alive or not for he doth not derive any Title from him but from Alley Dyer Can a Bishop grant an Office in Reversion without title of Prescription that they have used so to do time out of mind And here no Prescription is laid that the Bishop might so do And then as I conceive the Reversion of the Office cannot be granted for there is not any Reversion of it and it is not like unto an Advowson which may be granted that the Grantee may present when it shall be next void And as I conceive No Reversion of any Office can be granted if not by the King who hath a special Prerogative For he reciting how that such an one hath such an Office for life he may grant that such a person shall have the same Office after the death of the first Grantee And so the Queen may grant the Reversion of such an Office as if she recite that such an one is Keeper of such a Park there she may grant the Keepership of it after the death of another But if a Common person will grant the Stewardship of his Courts after the death of such a person as is now Steward or the Reversion of it the same is not good For of Offices there is not any Fee or Reversion But a Nomination which the party hath to name what person he pleaseth when the same shall become void Manwood It is the Order in the Arches and in the Prerogative Court and of all the Courts of Pauls to grant the Offices in Reversion as in the Case of Doctor Drury and others who have the Reversion of every Office which doth belong to the Spiritual Courts Dyer I do not care nor regard what they do but what they ought to do and I do not respect the person of any one in relating the Law But it may be that by words of Covenant such a Covenant may be good And of late time here a Case hath been adjudged That where one prescribed that such an one might grant an Office cuicunque personae idoneae voluerit and the Grant was made to two and because the prescription did not warrant this manner of grant it was adjudged void for when the prescription is to grant alicui personae and not quibuscunque personis by that he cannot grant it but to one person and not unto divers because the prescription doth not extend so far Manwood I conceive there is a difference betwixt such persons who have Offices for life as the Admiral of England the Lord Treasurer the Iustices of the two Benches which have Offices incident to their Courts they cannot grant any of those Offices in Reversion But a Bishop hath a Fee and therefore the Cases are not alike Dyer he hath not prescribed in the person of the Bishop here but he hath said That the Custom is That the Bishop may grant the said Office whereas in truth if there were a prescription he ought to prescribe That the Bishop for the time being might grant the said Office in possession or in reversion And so as I conceive here no Office shall be granted in reversion unless by prescription which ought to be alledged And in the time of this Queen an Office of this Court was granted to Fry and his Son by the King and the Patent was shewed here in Court and rejected and it was said there was no place in Court for two to sit there and the Office might be exercised as well by one as by two and therefore the Patent was disallowed And although that Offices are granted to two as now in the Kings Bench of late time there is not any President to warrant the same and therefore as I conceive such a Grant is not good nor warranted by the Law for I do not regard in this Case against what persons I speak Mounson In the Chancery a Patent was granted to Bagot and Swirenden of an Office in the Chancery by King Henry the 6th and in 9 E. 4. it is is disputed Whether the Grant were good or not c. LIX Mich. Eliz. In the Kings Bench. THe Case was A Man Mortgageth his Lands to pay to the Mortgagee his Heirs Executors or Assigns a certain sum of Mony at a day certain The Mortgagee dieth and maketh his Heir within age his Executor and the Mortgagor pays the Mony at the day to the Heir It was holden The same shall be Assets in the hands of the Heir as Executor and that he hath not the Mony as Heir and he shall be charged with it within age LX. Mich. 15 Eliz. In the Common Pleas. THe Case was this A Man had made a Lease for 40 years to one by Indenture if the Lessee should so long live and afterwards by another Deed he demised the same Lands and Tenements to the same Lessee To have to his Executors and Assigns for 40 years after the expiration of the first Lease And Lovelace Serjeant demanded the Opinion of the Court the Lord Dyer being then in the Star-Chamber Whether in this Case the Lessee should have the Interest in the second Lease or his Executors or whether it was a void Lease Harper Iustice said That in every Lease there are 3 things incident to make it good 1. That there be a Lessor to make the Lease 2. That there be a Lessee to take the Lease And 3. That there be a thing which should be which should be let And then he said That here although that there be a Lessor and a thing which should be leased yet here there was not any Lessee For Executors are not until after the death of the Testator But he said That if a Lease be made for years or for life and that the Executors shall have the same for certain years after his death the same is good for there is an Interest of the Term. And if a Man maketh a Lease to begin at the month of Easter his Executors may have this Term because the same was an Interest of a Term in the Lessee and the Term shall be executed at Easter But here in this
Bar for no person is named there Manwood If a Lease be made made to J.S. except Green-Close to J.D. who is a stranger the Exception is good and J.D. shall have it The Principal Case was Adjourned LXI The Lord Windsors Case Mich. 15 Eliz. In the Kings Bench. UPon an Evidence given to a Iury in the Kings Bench in an Ejectione Firmae the Case appeared to be thus That Sir Roger Lewknor Knight being seised in Fee of the Mannor of South Myms made an Indenture Anno 11. H. 8. by which Indenture he Leased the said Mannor to 20 persons to the use of Andrew Windsor afterwards Lord Windsor and Henry his Son and the Survivor of them as long as any of the said persons named in the said Indenture should live And further Covenanted by the same Indenture To stand seised of the said Mannor To the use of the said Andrew and Henry and the Survivor of them during the lives of any of the said Feoffees named in the same Indenture which Deed was made without Livery and Seisin and reserved upon it an yearly Rent and afterwards the Son died And in 22 H. 8. A Fine was levied by a stranger upon a Release to Andrew Lord Windsor And afterwards 34 of Henry 8 Andrew Lord Windsor made a Lease to one for years and died and made William and Edmond his Sons his Executors And afterwards William his eldest Son being Lord Windsor 2 3 Phil. Mary made a Lease of the same Land unto another to begin after the first Lease ended Which William died and the Lord Windsor that now is accepted the Rent and of late time agreed with one Vaughan who had married the Heir of Sir Roger Lewknor for the Reversion in Fee and afterwards the Lease made by Andrew Lord Windsor 34 H. 8. ended in the 4th year of the Reign of the Queen that now is Whereupon the second Lessee that is to say the Lessee of William Lord Windsor entred and being ousted he brought the Ejectione firmae And then and yet one of the 20 Feoffees of Sir Roger Lewknor is alive so as the Estate of Cestuy que Vie is not as yet determined And now the Question upon the first part of the Evidence is If this later Lease made by William Lord Windsor be a good Lease or not And who shall be said Occupant For when the Lord Andrew died then the Lessee as Catline said shall not be said in otherwise than according to his Lease when his occupation by Lease was lawful before And he who shall be said Occupant shall have a Freehold and if he should be Occupant he should be in by a new title Then we are to see If the Executors of the Lord which have the Rent and to whom the same is paid by the Lessee shall be said Occupant And he conceived That they should not although that they enter unless they claim the Freehold at the time of their entry for if they enter generally it shall be intended according to the Will as Executors and if he had granted his Estate to another there after his death the Grantee shall be said to be in by reason of his Grant and not as Occupant And so if he would devise his Estate the Devisee shall be in by reason of the Devise and not as Occupant Which Case of Devise Southcote denyed That he should not be in by reason of the Devise when his Estate determines with his death But if the Devisee entreth by force of the Devise he shall be in as an Occupant And also Southcote denyed that which had been said That the Lessee for years who holdeth the Lands after the death of Andrew Lord Windsor should not be an Occupant For as he said the Lessee being in possession after the death of the Lord Andrew should be said Occupant and no other for the Executors of the Lord could not be Occupant by the having of the Rent because they had not the possession of the Land for none shall be Occupant but he who is in possession Whiddon said That if the first Lease made by Andrew Lord Windsor was now in esse and that an Ejectione Firmae was brought upon that that the Lessee ought to aver That some of the Feoffees for whose lives c. were then living Southcote If a Praecipe quod reddat shall be brought against whom shall it be brought against him in the Reversion or against him in possession And if it shall be brought against the Tenant in possession then he ought to have the Freehold for it cannot be brought but against one who hath a Freehold at the least And then if the Lord William Windsor had nothing in the Land then how could he make this Lease to the Plaintiff that now is when the first Lessee continueth Occupant after the death of the Lord Andrew during the life of Cestuy que Vye And as to the Fine the Question did further arise If the Lord Andrew Windsor should have a Feesimple by that Fine For being levied as Catline said It cannot be to the first Vses because a Fine upon a Release cannot be intended to the use of any other but to him to whom it is levied unless an use be expressed in the Fine or by another Deed And upon a Fine levied upon a Release made unto Tenant life by a stranger the same is not a forfeiture of his Estate But if Tenant for life taketh a Fine Sur Conusans de droit come ceo c. the same is a forfeiture And although a Fine levied by those who have not any thing in the Lands be void Yet here it is not so and it ought to be pleaded specially and shewed that he had not anything in the Land at the time the Fine was levied as Anderson said And Catline said That this Fine was not without good advice for the Lord Brook and others who were learned in the Law were of Counsel with the Lord Windsor in the levying of this Fine so as the intent was to settle the Feesimple in himself by the Fine and not that the first Vses should stand after that And thereupon he put the Case of Putnam and Duncomb which hath much Resemblance to this Case which he argued when he was Serjeant and held the same Opinion as he holdeth now And therefore he said That although the Purchase was but of late time of Vaughan and his Wife yet the Fee was in the Lord Windsor before and this manner of purchase was to no other end but to discharge the Lands of Incumbrances as appeareth by the small sum which was paid the Land being of a great yearly value And as Vaughan confessed he took this sum of Mony because that his Council informed him that the Feesimple was in the Lord Windsor before and that otherwise he would not have sold it at such a price And he said That before that agreement the Lord Windsor told him that he had the Feesimple in himself
Whereupon Vaughan asked him Wherefore he paid the Rent To whom the Lord Windsor answered That he paid the same during the lives of the Feoffees but after their deaths he paid nothing but notwithstanding that payment that the Feesimple remained in him and that his Counsel advised him to pay the Rent to the Heirs of Lewknor who was the Wife of the said Vaughan And Catline said That if a Fine be levied upon a Release in a Scire facias against the Conusor he shall not plead that the Conusor had not any thing in the Land at time of the Fine levied And he said further That if a Disseisor be and the Disseisee levieth a Fine upon a Release that thereby his Right is gone And Note That as to the principal Case Southcote was of Opinion That the Fee was not gained by the Fine levied by a stranger to him who had the Vse before the Statute of 27 H. 8. and that if no Feesimple was in the Lord Windsor at the time of the Lease made by him that the Lease could not be good nor the Action maintainable And because the Court was divided in Opinions in both Points Catline commanded the Iury to find a Special Verdict LXII Mich. Eliz. In the Kings Bench. NOte That it was said by the whole Court That if a Man delivereth Mony to another Man to buy Cattel or to Merchandise with although that the Mony be sealed up in a Bag yet the property of the Mony is to the Bailee and the Bailor cannot have an Action for the Mony but only an Accompt against the Bailee although that he never buyeth the Cattel or other things for the Auditors upon the Accompt shall allow him the sum and such other allowances as they shall think fit And that a stranger takes away the Mony after the death of the Bailee or in his life-time the Bailor shall not have an Action against the stranger but the Executors of the Bailee or the Bailee himself during his life And yet if the Bailee dieth no Action of Accompt lieth against his Executors because the Testator had the property of the Monies And therefore if he who takes the Mony from the Bailee promiseth the Bailor to pay him the like sum of Mony as the Bailee had received of him in his life and as should be truly proved by the Bailor there upon that Promise an Action upon the Case doth not lie against him who took away the Mony as Catline said In an Action upon the Case brought by the Master of the Rolls and another who supposed that they delivered 100 l. to one Moore and that he is dead and that the Mony came unto the hands of the Defendant and that thereupon he promised to pay the like sum which might be proved that Moore had of the Plaintiffs It was holden That the Action upon the Case did not lie Southcote Iustice said That although the property of the Mony be changed as before and that no Accompt lieth against a stranger Yet when he hath the Mony and for that cause promiseth to pay it as before it is reason that an Action upon the Case should lie upon his promise although the Law will not charge him nor the Executors upon an Accompt LXIII The Lord Cromwells Case Mich. 15 Eliz. Dyer 321 322. 2 Roll. 560 561. JEffery recited That a Replevin was brought by Franklin The Defendants made Conusans as Bailiffs of the Lord Cromwell because that the said Lord was seised of the Mannor of North-Elmes and that the Custom of the said Mannor is That the Homagers have used to make By-Laws when necessity shall be within the same Mannor and upon a pain and forfeiture and that the Lord of the Mannor for the time being might distrain in the Land of any for the Forfeiture And further saith That in Anno 6 of Ed. the 6th the Homage then whereof Franklin the Plaintiff was one made By-Law That none should put his Sheep to feed in the Pasture or Lands of the Lord upon a pain c. And that the said Franklin in the 13th year of the Reign of the Lady the Queen that now is had put his Sheep into the Pasture and Lands of the Lord to feed and for that they avow the taking in the right of the Lord Cromwell for not payment of the said Forfeiture And Jefferies of Council with the Plaintiff said That the Avowry nor the Conusans were not good For the Custom is as they themselves have shewed That the By-Law shall be made when necessity requireth and without necessity a By-Law cannot be And it is not alledged here That there was a necessity at the time of this By-Law made and then if there be no necessity they cannot make the By-Law Also it is not alledged that there were any Sheep there And when a Custom is pleaded it shall be pleaded stricti juris And at the Common Law you may see divers Cases That when a Man is to have one thing for the cause of another that he must alledge the thing for which he must have it As in 9 H. 6. Where an Abbot had granted to one That he should have Common wheresoever the Cattel of the Abbot should go there if the Commoner will justifie or make Avowry for his Common he must aver that the Beasts of the Abbot went then in such a place Field or Pasture for if they did not go there at the time that he justifieth or avoweth his Iustification or Avowry shall not be good And there it was said by Babbington Chief Iustice That if a Man grants Common whensoever his Cattel shall go in such a Pasture If the Grantor doth never put his Cattel into the Pasture the Grantee shall not have Common there and therefore he must say That he put his Beasts into the Pasture And in 15 H. 7. in the Case of an Annuity granted until he be promoted to a Benefice in a Writ of Annuity brought he must say That he is not promoted c. And if an Obligation be made to you to you my Lord for Mony when J.S. shall return from Rome you shall not have an Action upon the Bond for not payment of the Mony without alledging that J.S. is retorned See 33 H. 6. Hillary 's Case And before the Statute of Quia Emptores terrarum If a Man had made a Feoffment to hold by Fealty and the Guarding of his Castle In an Avowry for the Castle Guard that there was then War and so cause of necessity for in time of Peace he shall not be bound to Guard it And so it appeareth 34 H. 8. Where a Feoffment was made before the Statute to hold by Fealty and every year to marry a poor Maiden within the Mannor if he doth avow for not marriage he ought to alledge that there was a poor Maid that year within the Mannor So if the Tenure be to repair a Bridge that is for the Common wealth and he and all others
Customs stand with Reason And so in 5 H. 7. Where a Man prescribes That for the Pasture which the Beasts of the Tenant have taken in his Lands in the day-time that he have the Foldage of them upon his said Lands in the Night to manure his Lands is a good prescription because the party hath for it Quid pro Quo. And so where a Man prescribes to have a Farthing of every one who passeth over his Land the same is called Toll traverse and is good And so in 7 H. 4. Where a Man prescribes in Common by reason of Vicinage it is good for though it cannot be of Common Right yet because each hath Quid pro Quo it is good And so is the Custom for Fishermen to dry their Nets upon the Banks of the Lands of other Men lying upon the Sea Coasts because it is for the Common wealth and every Man hath an advantage by it but if a Man should prescribe to Fowle there upon the Lands of another that were not good Meade contrary That case is as it hath been put and divers Cases of the Common Law Custom and Statute Laws have been shewed And by common Intendment it is intended that need doth require the making of the By-Law for otherwise they would not have made it and there needs not any averment that there was need of it for that shall be taken by intendment As 19 E. 4. A Man counts of the Grant of the next Avoydance and the Count is good without shewing that that was the next Avoydance but yet it would have been better if it had been expressed And 21 H. 7. In Trespass the first day of May the Defendant pleads the Licence of the Plaintiff without shewing that it was for the same Trespass and yet it shall be intended when he pleads a Licence for the same day that it was for the same Trespass And as to the Case put upon the Statute of 1 R. 3. it hath been ruled otherwise for it shall be shewed on the other side that he was within age as it appeareth by 10 13 H. 7. Also he said that the Court here shall intend that there was a necessity sufficient without expressing of it and if there was not then it ought to be alledged on the other side As 15 H. 7. An Annuity is granted until he was advanced to a Benefice the Plaintiff shall not need to shew it but that shall come on the Defendants part And the Statute which is That no Cattel of the Plough shall be distrained where the party hath other Cattel of which a Distress may be taken there the party needs not to alledge that he had other Cattel or other Goods And as to that which hath been said That it was the better Order that needs not for the Defendant himself was one of the makers of the Order and when By-Laws are made they shall not extend but to the Tenants within the Mannor where they are made and to such only as have Lands there and not to the Lands of others which are out of the Mannor and the Defendant in this case shall not be received to say but that this is a good Custom and Order because he is a party to it and was the maker of it and that there was then a necessity for the making of it for the better ordering of the Lands and that especially when as the Defendant himself was a party to it And as to that which is said That Seisin is alledged in the Lord Cromwell in 6 E. 6. and it is not alledged that the Seisin did continue in him until 13th of this Queen It shall be intended that he continued seised until the contrary be shewed As in 11 H. 7. A Man prescribed to have Common by reason of the House c. The Avowant doth not say that he was seised of the House at the time c. of the disseisin of the Common because he once alledged Seisin of the House and that Seisin shall be intended to continue unto the time of the disseisin And so 10 H. 7. A Prior Domus Ecclesiae de C. brought Waste and supposed that it was to the disenheresin of the House and did not say praedict Domus and yet it was good and shall be referred to the said Priory And so here when he saith that he was Lord and that the By-Law was made as before and a penalty imposed and a Distress taken by the Bailiff of the Lord Cromwell for not observing the By-Law and payment of the sum assessed all being put together makes a sufficient certainty and that the Lord Cromwell continued his Seisin of the Mannor and Land And as to that which hath been said That the By-Law made and the Custom alledged to distrain in the Lands of any Man for the Offence of another is not reasonable and against the Law To that he said That the Tenants here had authority to make By-Laws and by their consents have bounden themselves to the observing and performance of them and therefore shall not now be received to say That the By-Law made by themselves was against the Law. And he said That the Customs in some places are Where there are Waste Lands that they may make By-Laws That if any Tenant or person dig Turfs in the same Waste that the Lord may distrain for such offence within any place of the Mannor and the Cattel of any person Quaere of it The Principal Case was Adjourned LXIV Mountford and Catesbys Case Mich. 15 Eliz. In the Common Pleas. AN Action upon the Case was brought by Mountford against Catesby Dyer 328. Vaugh. Rep. 120. And the Plaintiff declared That the Defendant covenanted assumed and promised in Consideration of a certain sum of Mony to him paid and in Consideration of the payment of a Rent of certain Lands demised to the Lessee That he should peaceably and quietly enjoy the same without Interruption of any person and he was ousted by a stranger And the matter aforesaid was found by special Verdict And it was argued by Lovelace Serjeant and he prayed Iudgment for the Plaintiff And he said That there is a difference when it is said that a Man shall hold and enjoy peaceably and quietly As in Case where one warrants Land there if he be ousted by a stranger who hath not any Title to the Land he shall have an Action of Trespass against him But a Man by word or Covenant may bind himself to that which he is not bound to do by the Law. As if the Covenant and Promise be That he shall leave the Houses in as good plight as he found them there although the Law doth not bind the party to re-edifie the Houses in case they be overthrown by tempest of Wind or that they be destroyed by Enemies yet by his special Covenant he shall be bound to re-edifie them Meade contrary And that this promise shall not be taken strictly against the Lessor Hob. Rep.
35. that he shall enjoy it against all persons but only against all persons who have Title and not against those who have not any Title because against them he may have his remedy And if a Man makes a Feoffment of his Lands with Warranty and covenants that it is discharged of all Rents 1 Roll. 434. 1 Inst 389. a. 1 Len. 29. there it shall not extend to Rent Services which are incident to the Lands of Common Right In 3 H. 7. 4. the Case was The Condition of an Obligation was That the Obligor should make Appropriation of the Church of Dale such a day to such a House at his Costs and Charges discharged of Incumbrances Roll. Tit. Conditions there although there was a Pension granted thereout to another it was holden That the Obligee was not bounden to discharge it of that Pension No more than if a Man be bounden to make a Feoffment of his Land there although that he charge the Land yet he shall not forfeit his Bond But if it were that he should make a Feoffment of his Land discharged c. it is otherwise but yet he shall not be bounden to discharge it of such things with which it is charged by the Law. Barham The words are precisely That he shall enjoy it without interruption of any person so as be he interrupted by one that hath Title or no Title the Plaintiff hath cause of Action Manwood What if the words were That he should enjoy it without Suit in Law Meade That shall be intended of a lawful Suit And in the principal case although the Contract be by words yet it is upon a good Consideration that is to say Of a Fine and Income and upon the payment of the Rent And therefore as Dyer said When Catesby the Son leased the Lands to Mountford the now Plaintiff and it appeared that his Father or a stranger made claim to it and thereupon he made the promise as before shall it be intended that he should hold and enjoy the Lands peaceably without interruption of them only who had Title And that he should not have his Remedy against the Defendant upon his promise if a stranger who had not Title did interrupt him Truly he shall have his remedy against him As if the Son had promised that he should enjoy it against his Father or else that in truth if it were the Land of the Father shall it not be intended that the Son did presume that his Father should not interrupt his Lessee And that he would so deal with his Father that he should not interrupt him and it may be that upon the presumption of the good will of his Father or that he had treated with him or compounded with him that for these or the like causes the Son made the promise aforesaid And if the Father had not any Right or Title to the Land should not the Lessee have his Action against the Defendant if the Father did interrupt him for this unlawful Interruption Truly Yes For by the words it is to be supposed That the Son would so deal with his Father that the Lessee should enjoy and hold the Lands without any manner of interruption Mounson You have well tasted the Opinion of the Court upon this matter before and now you hear our Opinions again Manwood As I said the other day Cannot an Hostler take upon him that the Goods of his Guests which are within his Inn shall be safe and charge himself further therewith than he is chargeable by the Custom of the Realm and to be chargeable against every one that taketh them away Truly I conceive he may Harper The common making of Assurance is That he shall enjoy them without any lawful Interruption 1 Roll. 429. And if the Law upon the general words of Enjoying without Interruption should be intended but of lawful Interruptions It were in vain to have this word Lawful in the Deed c. LXV Mich. 15 Eliz. In the Common Pleas. AN Action of Debt was brought against one upon an Obligation It was upon an Apprentice Bond The Condition of which was That if such a one did become the Apprentice of the Obligee and transport his Merchandises beyond the Seas and make a Retorn of them and maketh an Accompt unto the Obligee and payeth the Monies upon his Accompt within a certain time that then c. And afterwards the Obligee doth release by Deed to the Servant the Apprentice and not to the Obligor And in Debt brought against the Obligor he pleaded the Release And it was said by the Lord Dyer and by the whole Court That by the Release to the Servant the Obligation was saved if the Release were made before any forfeiture or that the Servant or Apprentice had broken any of the Conditions or any point according to the Covenants but if it was made after any of them was broken then such a Release to the Servant did not dispence with the Obligation which was made by the stranger because an Obligation once forfeited cannot be saved by any Act or Release made or done to a stranger LXVI Mich. 15 Eliz. In the Common Pleas. IN a Quare Impedit brought by the Patron against the Archbishop of York and the Incumbent Dyer 327. who was in by the Collation of the Archbishop after the death of the Incumbent of the Patron It was said by the Lord Dyer That of an Avoydance by Resignation or Deprivation the Patron shall have 6 months time after notice thereof given unto him to present his Clerk because it may be done secretly in the Chamber of the Ordinary and therefore in such case the Law is That the Bishop is to give notice of it to the Patron before he be bound to that knowledge of such a Presentment as it appeareth by the Case in 1 H. 7. 4. And Lowe the Prothonotary said That so is the Roll of the same year where the Issue was Whether the Patron had 6 months after the notice And then the Lord Dyer said to the Prothonotary Shew me the Roll at another day that I may compare it with my Book But if the Church become void by death of the Incumbent there the Patron is to take notice of it at his peril without any other notice thereof to be given him by the Ordinary And he said That if the Patron doth present his Clerk a Week before the 6 months be ended and the Ordinary doth refuse the Clerk for Inability because he is unlearned and then the six months pass before he presenteth another after the six months after the death of the Incumbent in such case the Bishop shall have the Collation of the Clerk because it was the folly of the Patron that he did not present his Clerk before so as the Ordinary might examine him and that thereupon if he be found to be unable that he might present another Clerk to the Ordinary within convenient time and for that cause is the 6
shall be taken in Iudgment of Law That the Executors have Assets to the value of the whole 100 l. And although the Executors were compelled by the Award to make the release yet it was their own act to submit themselves to the Arbitrament LXXVIII Mich. 15 Eliz. In the Court of Wards NOte It was Ruled by Kellaway and Wilbraham in the Court of Wards That where the Kings Tenant of Lands holden by Knight service in Capite made a Feoffment of the same Land to the use of himself for life and after to the use of his younger Son in tail the remainder to the right Heirs of the Feoffor and died the eldest Son within age That the Queen should have the Wardship of his body and of the third part of the Land and when the eldest cometh at full age the younger shall sue Livery and pay Primer Seisin according to the rate of the value of the whole Land viz. of the third part as in possession and of the two parts as a Reversion For the remainder to the right Heirs of the Feoffor is in truth a Reversion For the Feesimple was never out of him because there was not any Consideration as to that nor any use expressed And also because that Livery shall not be by parcels the younger Son shall not be suffered to sue Livery of the third part presently and respite the residue as to the two parts in Reversion until the Reversion fall but shall sue Livery presently as well of the two parts in reversion as of the third part in possession And if the eldest Son had been of full age at the time of the death of his Father the younger Son should pay Primer Seisin as to the third part of the full value of it for one year as in possession and as to the two other parts the moyety of the value of a year as a Reversion And at that time Breers Case was vouched which was Oliver Breers Tenant in Chief by Knights Service made a Feoffment in Fee to the use of himself for life and after to the use of A. his Son and Heir for life and after to the use of the first begotten Son of A. in tail and after to the use of the second Son of A. c. and for default of such Issue to the right Heirs of the Feoffor Oliver died the said A. his Son being of full age It was ruled by the said Council of the said Court of Wards That he should pay for his Primer Seisin a third part of the Land in possession and two parts as a Reversion LXXIX Mich. 15 Eliz. In the Common Pleas. Post 56. THe Case was A Man was seised of a Pasture in which was two great Groves and a Wood known by the name of a Wood And also in the same Pasture were certain Hedge-Rowes and Trees there growing Sparsim Leased the same by Indenture for years And by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses And further That it should and might be lawful to the Lessee to cut down and carry away the same at all times during the Term. Harper Iustice The Hedge-Rowes did not pass by these words Hedge-Rowes sparsim Dyer The Hedge-Rowes shall pass for the Grant is general All Woods Mounson contrary For the words of the Grant may be supplyed by other words It was moved further If by these words the Lessee may cut them oftner than once And by Harper Manwood and Mounson He can cut them but once Dyer contrary And so it should be if the words had been Growing upon the Premisses And this word Growing although it sounds in the present Tense yet it shall be also taken in the future Tense if the word tunc had not been alledged for it is a word of restraint The Case which was argued in the Chancery 27 H. 8. where I was present was such The Prior of St. John of Jerusalem Leased a Commandry Provided That if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void It was doubted If that did extend to the Successors for the word Being is in the present Tense And yet it was holden by Fitzherbert That it should be taken in the future Tense and so extend to the Successors Otherwise if the words had been Nunc Being LXXX Mich. 15 Eliz. In the Common Pleas. A Man seised of Lands in Fee devised 1 Len. 101. That his Wife should take the profits of his Lands until Mary his Daughter and Heir came to the age of 16 years And if the said Mary died That J.S. should be her Heir Manwood The Daughter after she hath attained the age of 16 years shall have the Land in tail For Devises ought to be construed according to the intent of the Devisor so far forth as any certainty with reason may be collected but no intent shall be taken against all reason and certainty It is certain That the Daughter shall not have the Land in Fee for that shall descend to her without any Devise And these words If she dieth cannot be intended a Condition for it is certain she shall die But if the words had been That after the death of Mary J.S. should be his Heir in such case Mary had had but an Estate for life for there it is limited what Estate she should have And when it is said J.S. shall be his Heir it shall be meant his Collateral Heir so as the Estate tail remains in the Daughter Mounson and Harper to the contrary and that she shall have but for life And by Mounson If Mary had been a stranger to the Devise she should take nothing And this Case was put by Barham Serjeant A Man deviseth 100 l. to his youngest Daughter 100 l. to his middle Daughter and another 100 l. to his eldest Daughter and that all these sums shall be levied of the profits of his Lands It was holden by the better Opinion of the Court in this Case That the youngest Daughter should be first paid and then the middle and then the eldest Daughter and that was said to be Coniers Case LXXXI Mich. 15 Eliz. In the Common Pleas. THe Case was The King granted to the Bishop of Salisbury That he should have Catalla felonum fugitivor ' and Fines and Amercements of all Tenants and Resiants within the Mannor of D. which Mannor the Bishop Leased for years and that the Lessee should have all profits and hereditaments within the same Mannor Manwood Iustice conceived That the Lessee should have the Post Fines For all things have a being somewhere although they be not visible As Rents Fines have their being in the Lands out of which they are issuing and that is in the Son of a Fine levied of the Land within the Mannor which is due by Land of him who ought to pay the Fine And this Fine is due be reason of the
Land therefore it is in the Land or within the Land i. e. the Mannor For the King may distrain for the Fine as well in the same Land as in the Land of him who ought to pay it Dyer doubted of it and said That the Bishop could not distrain in the Land for this Fine but should have it by allowance in the Exchequer upon the Estretes and if the party would not pay it the Lessee should have a Subpoena against him out of the Exchequer And some were of Opinion That the Lessee could not have this Fine 2 Len. 179. 4 Len. 234. for that they were not Hereditaments within the Mannor but rather in the Exchequer or Court where the Record is LXXXII Mich. 15 Eliz. In the Common Pleas. THe Case was A Man seised of a Pasture in which are two great Groves and a Wood known by the name of a Wood And also in the same Pasture there are certain Hedge-Rowes and Trees there growing Sparsim Leased the same by Indenture for years And by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses And further That it shall and may be lawful to the Lessee to cut down and carry away all the same at all times during the Term. Harper The Hedge-Rowes do not pass by these words for they are not known by the name of Woods 14 H. 8. 2. contrary by Manwood For by such words Hedge-Rowes pass Mounson contrary For the words of the Grant may be supplyed by other Words Dyer The Hedge-Rowes shall pass for the Grant is general All Woods It was moved further If by those words the Lessee might cut them a second time or but once Harper Manwood and Mounson He may cut them but once Dyer contrary And so it should be if the words had been Growing upon the Premisses And this word Growing although it sounds in the present Tense yet it shall be also taken in the future Tense if not that the word tunc had been there for that is a word of Restraint The Case was argued in the Exchequer Chamber where I was present which was The Prior of St. John's Leased a Commandry Provided That if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void It was doubted If that Proviso did extend to the Successors for the word Being is in the present Tense And yet by the Opinion of Fitzherbert it shall be taken in the future Tense and so extend to the Successors Otherwise if the words had been Now being LXXXIII Mich. 15 Eliz. In the Common Pleas. A. Made B. his Executor and died Vid. le stat 43 Eliz. cap. 8. Office of Executors 261. B. to the intent to defraud the Creditors refused to take upon him the Executorship but caused a stranger to take upon him Letters of Administration which stranger fraudulently gave the Goods of the Testator to B. Dyer If the gift be fraudulent then by the Statute of 13 Eliz. the gift is void and then B. by the Occupation of the Goods shall be charged as Executor of his own wrong Manwood I conceive there is a difference If one makes an Executor and another takes the Goods but doth no Act which concerns the Office of an Executor as paying of Debts he is not Executor of his own wrong but a Trespassor to him who is Executor in right but if he doth any Act which belongs to the Office of an Executor then he is Executor of his own wrong Dyer That Case hath been adjudged against you and although the Books of 9 E. 4. 22 H. 6. were vouched Yet Iudgment was given against the Opinion of Manwood It was the Case of one Stoke LXXXIV Jackson and Darcyes Case Mich. 16 Eliz. In the Common Pleas. IN a Writ de Partitione facienda between Jackson and Darcy the Case was Tenant in tail the remainder to the King levied a Fine had Issue and died In that case It was adjudged That the Issue was barred and yet the remainder which was in the King was not discontinued For by that Fine an Estate in Feesimple determinable upon the Estate tail did pass unto the Conusee LXXXV Strowds Case Hill. 17 Eliz. In the Common Pleas. IN a Replevin the Case was That Lands holden of a Subject came to the possession of the King by the Statute of 1 E. 6. of Chauntries and the King granted the Lands over In that case It was holden That the Grantee shall hold the Lands of the King according to the Patent and not of the Ancient Lord But the Patentee shall pay the Rent by which the said Land was before holden as a Rent seck distrainable of Common Right to the Lord only and his Heirs scil to him of whom the said Lands were before holden LXXXVI Tresham and Robins Case Mich. 17 Eliz. In the Kings Bench. TResham brought an Action of Debt upon a Recognizance against Robins The Condition of which Recognizance was To stand to the Arbitrament of A. and B. who made Award That Robins should have the Land Yielding and paying 10 l. per annum And that Tresham in further assurance should levy a Fine to Robins of the same Land and upon that Robins should grant and render to Tresham which is done accordingly the Rent is behind Tresham brought Debt upon the Recognizance The Defendant pleaded the special matter with this per close Unde petit Judicium if the Plaintiff should have Execution against him And by the Opinion of the whole Court the Conclusion of the Plea is not good For here is not any Execution of the same Debt but an Original Action of Debt brought in which case he ought to have concluded Iudgment Si actio It was further moved If these words Yielding and paying make a Condition And it was agreed That the words do amount to as much as So as he pay the Rent And if a Man makes a Feoffment in Fee Reddendo salvendo 10 l. for years the same is a Condition But in the principal Case It is not a Condition For it is not knit to the Land by the Owner it self but by a stranger i. e. Arbitrator but it is a good Clause to make the same an Article of the Arbitrament which the parties are bound to perform upon pain of forfeiture of the Recognizance Which Wray concessit And that this Rent should not cease by Eviction of the Land. LXXXVII The Earl of Westmerlands Case Hill. 18. Eliz. In the Common Pleas. THe Earl of Westmerland seised of a Mannor whereof the Demesnes were usually let for three Lives by Copy 2 Len. 152. 2 Brownl 208. according to the Custom of the Mannor granted a Rent-charge to Sir William Cordell pro consilio impendendo for the term of his Life and afterwards conveyed the Mannor to Sir William Clifton in tail The Rent is behind Sir William Cordell dieth Sir William Clifton dieth
the Mannor descended to Sir John Clifton who granted a Copy-hold to Hempston The Executors of Sir William Cordell distrain for the Rent And it was agreed by the whole Court That the Copyholder should hold his Copy-hold charged Vide inde 10 Eliz. Dyer 270. Windham It hath been adjudged That the Wife of the Lord shall not be endowed against the Copyholder which Periam granted and shewed a reason thereof For the Title of Dower is not consummated before the death of the Husband so as the Title of the Copyholder was compleated before the Title of Dower But the Title of the Grantee of the Rent is consummated before the Dower Fenner conceived That the Executors could not distrain upon the Possession of the Copyholder and he argued That this Case is not within the Statute of 32 H. 8. For by the Preface of the said Statute he conceived That the Statute extended but to those Cases for which by the Common Law no remedy was provided but in this Case the Executors by the Common Law might have had an Action of Debt Ergo. But Periam and Windham held the contrary For this Statute intends a further remedy for that mischief viz. not only an Action of Debt but also Dissress and Avowry See the words of the Statute viz. distrain for the Arrearages c. Vpon the Lands c. which were charged with the payment of such Rents and chargeable to the distress of the Testator so long as the said Lands continue remain and be in the seisin or possession of the said Tenant in Demesne who ought immediately to have paid the said Rent so being behind to the said Testator or in the seisin or possession of any other person or persons claiming the said Lands only by and from the said Tenant by purchase gift or descent in like manner and form as their Testator might or ought to have done in his life time It was moved by Fenner That here the Land charged doth not continue in the seisin or possession of the Tenant And here Sir J. Clifton was issue in tail and therefore he doth not claim only by the Father but per formam Doni and therefore he is not lyable Ergo nor his Heir Shuttleworth contrary Sir J. Clifton was chargeable and he claims only from them who immediately ought to have paid the Rent And the Copyholder claims by purchase from Sir J. Clifton so he claims from Sir William Clifton the Tenant although he doth not claim immediately For if the Tenant ought to have paid it and he dieth and the Land descendeth to his Heir and the Heir maketh a Feoffment the Feoffee shall be charged within this Statute although he doth not claim immediately So where Land discharged descends from the Tenant who ought to have paid it and so from Heir to Heir The Statute of 1 R. 2. is That all Grants c. shall be good against the Donor c. his Heirs c. claiming the same only as Heirs to Cestuy que Use Yet if Cestuy que Use grants a Rent-charge and his Feoffees are disseised the Grant shall be good against the Disseisor and yet he doth not claim only by Cestuy que Use And although Sir J. Clifton be Tenant in tail and so claims per formam Doni yet forasmuch as the Estate tail comes under the Estate of him who grants the Rent he shall be subject to the charge And this Statute extends not only to him who claims by the Tenant but also to the Heir of him c. And by Windham and Rhodes The Copyholder doth not claim only by the Lord but he claims in also by the Custom but the Custom is not any part of his Title but only appoints the manner how he shall hold The possession here is continued in Sir J. Clifton for the possession of his Copyholder is his possession so as if the Copyholder be ousted Sir J. Clifton shall have an Assise And so the strict words of the Statute are observed for the seisin and possession continue in Sir J. Clifton who claims only by Sir William Clifton who was the Tenant in Demesne who ought to pay the Rent But Fenner said to that That the seisin and possession intended in the Statute was the very actual possession i. e. pedis dispositio and such a possession in which a distress might be taken and that could not be taken in a Freehold without actual possession LXXXVIII Owen and Sadlers Case Hill. 18 Eliz. In the Common Pleas. 10 Co. 96. A Lease was made to A. for life the remainder to B. in tail the remainder to the right Heirs of B. who bargains and sells all his Estate or levies a Fine with Proclamations of it to D. A. commits Waste It was holden by the Court That D. shall not punish him in an Action of Waste for nothing passeth to him but during the life of the Grantor scil as to the remainder in tail in respect of which Estate the Action of Waste is only maintainable for although that the Feesimple passeth to the Grantee or Conusee yet in respect of that an Action of Waste is not maintainable until the Estate tail be spent LXXXIX Mich. 18 Eliz. In the Common Pleas. THe King seised of a Mannor 2 Cro. 53 123. Yel 90 91. 1 Cro. 240. 2 Roll. 371. Hob. Rep. 242. to which an Advowson is appendant A stranger presents and his Clerk is in by 6 months The King grants the Mannor with all Advowsons appendant to it to B. The Incumbent dieth In this case It was holden by the Court That the Grantee might present For the Advowson was always appendant and the Inheritance of the same passed to the Grantee for it was not made disappendant by the Vsurpation But the Patentee shall not have a Quare Impedit of the first disturbance for that presentment did not pass unto him being a thing in Action without mention of it in his Grant And if the Plaintiff brings a Quare Impedit of the second Avoydance he shall make his Title by the presentment of the King not making mention of the Vsurpation Yet if the Bishop present by Lapse in the case of a common person he ought to make mention of it XC Mich. 18 Eliz. In the Kings Bench. IN an Ejectione firmae upon an Evidence the Case was this The Bishop of Rochester 4 E. 6. Leased to B. for years rendring Rent and afterwards granted the Reversion to C. for 99 years rendring the ancient Rent Habendum from the day of the Lease without impeachment of Waste which Grant was confirmed by the Dean and Chapter but B. did not attorn And in default of Attornment It was holden by the whole Court That the Lease was void For it was made by way of grant of the Reversion and to pass as a Reversion But by Catline If the Bishop had granted the Reversion and also demised the Land for 99 years It should pass as a Lease to begin first after the
Parliament 35 H. 8. it was Enacted That the said Lady should hold part of her Inheritance and dispose of the same as a Feme sole and that the Marquess should have the Residue and that he might Lease the same by himself without his Wife for 21 years or less rendring the ancient Rent being Land which had been usually demised c. The Marquess Leased for 21 years and afterwards durante Termino praedict Leased the same Land to another for 21 years to begin after the determination of the first Lease It was moved in this Case That this last Lease was void and that for 3 Causes 1. Because the Marquess had but an Estate for life and then it could not be intended that the Statute did enable one who had but such an Estate determinable to make such a Lease which peradventure might not commence in his life-time 2. The Letter of the Statute is 21 years or under and the word Under strongly expounded the meaning of the Statute to be not to extend to such an Estate For here upon the matter is a Lease for 40 years 3. Because the Land demised is the Inheritance of the Wife And in this Case it was said That in the Case of one Heydon such a private Act was strictly construed which was That it was Enacted That all Copies for 3 Lives granted by the Lord Admiral of the Lands of his Wife should be good The Admiral granted Leases in Reversion for 3 Lives And it was holden That that Grant was not warranted by the Statute Dyer said The words are general Omnes dimissiones and therefore not to be restrained unto special Leases scil to Leases in possession Manwood said A Feme Covert by duresse joyns in a Lease with her Husband the same shall bind her CXI The Queen and Sir John Constables Case Hill. 20 Eliz. In the Kings Bench. 5 Co. Constables Case A Quo Warranto was brought by the Queen against Sir John Constable who claimed certain Wreck in the County of York The Defendant pleaded That Edward Duke of Buck. was seised of such a Mannor to which he had Wreck appendant and that he was de alta proditione debito modo attinctus and that found before the Escheator And shewed further That the said Mannor descended to Queen Mary who granted the same to the Earl of Westmerland who granted the same to the Defendant Vpon which It was demurred And Exception was taken to the Plea because the Attainder is not fully and certainly pleaded It was argued by Plowden That the Attainder was certainly pleaded scil debito modo attinctus And it is shewed That the Wreck is appendant to the Mannor and then if the Defendant hath the Mannor he hath the Wreck also and if he hath the Mannor it is not material as to the Queen how he hath it for the Queen doth not claim the same but impeacheth the Defendant for using there such a Liberty But if the Heir of the said Duke had demanded the Mannor there against him the Attainder ought to have been pleaded certainly And it was said by him That the Interest of the Queen in the Sea extends unto the midst of the Sea betwixt England and Spain But the Queen hath the whole Iurisdiction of the Sea between England and France because she is Queen of England France c. And so it is of Ireland CXII Hill. 20 Eliz. In the Common Pleas. TEnant for life made a Feoffment of White-Acre of which he was seised for life and made a Letter of Attorny to deliver Livery and Seisin secundum formam Chartae before Livery the Tenant purchased the Fee and afterwards Livery was made It was resolved by the Court in this Case That all passed But if the Feoffment had been of all his Lands in D. and the Letter of Attorny accordingly and before Livery made the Feoffee had many Lands there If he purchased one Acre after the Livery should not extend to that Acre because the Authority was satisfied by the other Acre CXIII Banks and Thwaits Case Mich. 21 Eliz. In the Kings Bench. IN an Action upon the Case the Case was That A. had pawned an Indenture of Lease for years of a Messuage and Lands to Banks Thwaits intending to purchase the same required Banks to deliver him the said Lease and he would give Banks 10 l. whether he bought it or no at what time he would request the 10 l. Post 200. And Banks delivered the same to Thwaits accordingly Post 200. And afterwards brought an Action upon the Case and declared upon the whole matter and concluded Licet saepius requisitus c. without alledging a request express in certain and the day and place of it It was said by Cook That here the monies did not grow due before Request nor is payable before Request and therefore a Request ought to be made in facto And so he said It was ruled in this Court in an Action upon the Case betwixt Palmer and Burroughs and he said that the Mony was not due by the Promise but by the Request And it was the Opinion of the whole Court That although it be a duty Yet it is not a duty payable before Request And the Request makes a Title to the Action But if A. selleth to B. a Horse for 10 l. there is a Contract and a Request in facto need not be layed And the Opinion of the Court was also That upon this matter the Plaintiff could not have an Action of Debt for there is not any Contract for the thing is not sold but it is a Collateral promise grounded upon the delivery And by Clench Here the Request is traversable And afterwards Iudgment was given against the Plaintiff And it was said It was so ruled in Alderman Pullisons Case in the Exchequer Post 201. CXIV Segar and Boyntons Case Mich. 21 Eliz. In the Common Pleas. 2 Len. 156. IN Trespass the Case was this King Henry the 8th Anno 27 of his Reign gave the Mannor of D. to Sir Edward Boynton Knight and to the Heirs Males of his body Sir Edward Boynton had Issue Andrew his eldest Son and C. the Defendant his younger Son and died Andrew Boynton Covenanted by Indenture with the Lord Seymore that the said Andrew Boynton would assure the said Mannor to the use of himself for life the Remainder to the said Lord and his Heirs The said Lord Seymore in recompence thereof should assure other Lands to the use of himself for life the remainder to the use of the said Andrew Boynton in tail who 37 H. 8. levyed a Fine of the said Mannor without proclamations to two strangers to the uses according to the said Agreement and before any Assurance made by the said Lord The said Lord was Attainted of Treason and all his Lands were forfeited to the King And afterwards the said Andrew Boynton made a Suggestion to Queen Mary of the whole matter and upon his humble Petition the said
devise Lands of which she was seised of an Estate of Inheritance in Fee simple according to the Custom to her Husband And also Surrender the same in the presence of the Steward and 6 other of the Tenants And it was further found That one J.S. was seised of the Copy-hold Lands wherein the Trespass was And that he had Issue 2 Daughters and died seised of the said Lands And that after his Decease his two Daughters entred into the said Lands and afterwards they both took Husbands And that afterwards one of the said Daughters made a Will in writing and by her said Will in the presence of the Steward and six of the Tenants she Devised her part of the said Copy-hold Lands to her Husband and his Heirs and at the next Court surrendred the said Copy-hold Lands in the presence of the Steward and six other of the Tenants to the uses in her Will expressed and shortly after she died and that after her death her Husband was admitted to the said part of her Lands who continued the possession thereof And the Husband of the other Daughter and his Wife entred upon him Vpon whom he re-entred And the Husband brought Trespass This Case was argued at the Bar by Rhodes And he said That the Custom was not good neither for the Devise nor for the Surrender First for the incertainty of the Estate what Estate she might Devise for that is not expressed in the Custom but generally that she might Devise her Copyhold Lands of Inheritance without expressing for what Estate And secondly the Custom is not good for that it is against reason that the Wife should surrender to the use of her Husband And that a Custom to devise is not good where it is incertain he vouched many Cases As 13 E. 3. tit Dum fuit infra aetatem 3. The Tenant said That the Lands lay in the County of Dorset where the Custom is That an Enfant might make a Grant or a Feoffment when he could number 12 d. and because it is incertain when he could do it It was holden to be a void Custom So 19 E. 2. tit Gard. 127. In a Ravishment of Ward It was alledged that the Custom was That when an Enfant could measure an Ell of Cloath or number 12 d. that he should be out of Ward And it was holden to be a void Custom for the incertainty Also he said That in the principal Case the Custom was void for that it was against reason that the Wife should surrender to her Husband for every Surrender is a Gift and a Woman cannot give unto her Husband for the Wife hath not any disposing Will but the Will of her Husband only And therefore the Case is in 21 E. 3. That if the Husband be seised of Lands in the right of his Wife and he maketh a Feoffment in Fee of the Lands and the Wife being upon the Lands doth disagree and saith She will not depart with the Land during her life yet the Feoffment is a good Feoffment and shall bind the Wife during the life of the Husband And see 3 E. 3. Br. tit Devise 43. That a Feme Covert cannot Devise to her Husband for that should be the Act of the Husband to convey the Lands to himself And whereas the Case in 29 E. 3. was Objected against him where the Case was That a Woman being seised of Land deviseable took a Husband and had Issue by him and the Wife Devised her Lands to her Husband for his life and died and a Writ of Waste was afterwards brought against him And it was there holden That the Writ did lie He said That that Case did make rather for him than against him for that Case proves that the Husband did not take the Land by vertue of the Devise in his own right but that he held the Lands having Issue by the Wife as Tenant by the Courtesie and so under another Title and therefore it appeareth that the Writ of Waste was there brought against him as Tenant by the Courtesie Also he said That the Devise was void by the Statute of 34 H. 8. Cap. 5. where it is Enacted That Wills and Testaments made of any Lands Tenements c. by Women Coverts shall not be good or effectual in the Law and he said That that Statute did extend to Copyhold Lands But as to that all the Iustices did agree That Copyhold Lands were not within the words of that Statute But Anderson said That the Equity of that Act did extend to Copyholds And further Anderson said That the Prescription or Custom in the principal Case was not good for it is layed to be That Quaelibet Foemina Viro Co-operta poterit and it ought to be potest and by the Custom have used to Devise to the Husband And a Prescription must be in a thing done and not in posse Also he said That the Custom if it were good is not well pursued For the Custom is that she may Devise and Surrender in the presence of the Steward and six Tenants and that must be intended to be done all at one time for the words of a Custom are to be performed if it may be but in the principal case the Devise is laid to be at one time and the Surrender at another time and so it is not in pursuance of the Custom But to that it was not answered But then it was said Admit that the Custom to devise and the Devise were not good yet the Action did not lie against the Defendant because that the Husband was admitted and his Entry into the Land was countenanced by a lawful Ceremony and also he was Tenant in Common with the other Husband by such Entry It was adjourned CXXIII Rosse's Case Mich. 26 Eliz. In the Kings Bench. IN Trespass brought by Rosse for breaking of his Close and beating of his Servant and carrying away of his Goods Post 94. Vpon Not guilty pleaded the Iury found this special matter scil That Sir Thomas Bromley Chancellor of England was seised of the Land where c. and leased the same to the Plaintiff and one A. which A. assigned his moyety to Cavendish by whose Commandment the Defendant entred It was moved That that Tenancy in Common betwixt the Plaintiff and him in whose right the Defendant justified could not be given in Evidence and so it could not be found by Verdict but it ought to have been pleaded at the beginning But the whole Court were clear of another Opinion and that the same might be given in Evidence well enough It was further moved against the Verdict That the same did not extend to all the points in the Declaration but only to the breaking of the Close without enquiry of the battery c. And for that cause it was clearly holden by the Court That the Verdict was void And a Venire facias de novo was awarded CXXIV Absolon and Andertons Case Mich. 25 26 Eliz. Rot. 479. In the Kings
he might be disseised But because the words of the Indictment were Expulit disseisivit which could not be true if the party expelled and disseised had not Freehold the Exception was disallowed Another Exception was taken to the Indictment For these words In unum tenementum intravit and this word Tenementum is too general and an uncertain word and therefore as to that the party was discharged But the Indictment was further In unum Tenementum decem acras terrae eidem pertinent And therefore as to the 10 Acres the party was enforced to Answer CL. Pasch 26 Eliz. In the Common Pleas. A. Granted to B. a Rent-charge out of his Lands to begin when J.S. died without Issue of his body J.S. died having Issue which Issue died without Issue Dyer said The Grant shall not take effect For J.S. at the time of his death had Issue and therefore then the Grant shall not begin and if not then then not at all And by Manwood If the words had been To begin when J.S. is dead without Issue of his body then such a Grant should take effect when the Issue of J.S. dieth without Issue c. Dyer If the Donee in tail hath Issue and dieth without Issue The Formedon in Reverter shall suppose that the Donee himself died without Issue For there is an Interest and there is a difference betwixt an Interest and a Limitation For if I give Lands to A. and B. for the Term of their lives if any of them dieth the Survivor shall have the whole But if I give Lands to A. for the life of B. and C. now if B. or C. die all the Estate is determined because but a Limitation and B. and C. had not any Interest See Cook 5 Part Bradnell's Case CLI Pasch 26 Eliz. In the Common Pleas. A. Enfeoffed B. upon Condition That if he pay 10. l. to the Feoffee his Executors or Assigns 4 Len. 232. 1 Len. 285 286. Hill. 12. Car. 2 B.R. Goodyer and Clarks Case within 3 yeares next ensuing that then it should be lawful for him and his Heirs to re-enter The Feoffee hath Issue two Sons whom he makes his Executors and dieth before the day of payment The Ordinary commits â—etters of Administration to J.S. during the minority of the Executors Manwood conceived That it is a most sure way for A. to pay the Monies to the Executors for they remain Executors notwithstanding the Administration committed to another For the Administrator in such case is but as Bailiff or Receivor to the Executors and shall be accomptable to them Which Harper and Dyer Concesserunt And Manwood said If in this Case the Monies be paid to one of the Executors it is sufficient and the same well paid but that Conditional Feoffments are as a Sum in gross and not in nature of a Debt Which the rest of the Iustices granted CLII. Pasch 26 Eliz. In the Common Pleas. A. Seised of a Mannor seased the same for years rendring Rent with Clause of re-entry and afterwards levied a Fine Sur Conusans de Droit to the use of himself and his Heirs The Rent being demanded is behind Dyer A. cannot re-enter for although in right the Rent passeth without Attornment yet he is without remedy for it is without Attornment and it would be hard without Attornment to re-enter c. It was moved further If here the Conusor be Assignee within the Statute of 32 H. 8. Manwood The Reversion of a Termor is granted by Fine there wants privity for an Action of Debt Waste and Re-entry But if the Conusee dieth without Heir although that in right it was in the Conusee yet the Lord by Escheat shall make Avowry and yet the Conusee by whom he claimeth could not And in the Case at Bar the Conusee himself could not but the Conusor being Cestuy que use who is in by the Act of Law 1 Inst 309. shall avow and shall re-enter without Attornment For the Conusor is in by the Statute of 27 H. 8. Harper The Heir of the Conusee shall avow and re-enter before Attornment Dyer 13 H. 4. The Father leaseth for years rendring Rent with Clause of re-entry the Father demands the Rent which is not paid the Father dieth the Son cannot re-enter For the Rent doth not belong unto him And therefore in the Case at Bar the Conusee cannot avow for the Rent before Attornment therefore not re-enter CLIII Trin. 26 Eliz. In the Common Pleas. IT is Enacted by the Statute of 5 Eliz. Cap. 8. That no person shall cut down any Oak Trees but between the first day of April and the last day of June but Timber imployed and bestowed in or about Buildings or Reparations of Houses c. And upon an Information upon that Statute the Defendant pleaded That he cut down the said Oak Trees and thereof made Laths to be bestowed in building and that he had sold them to J.S. who had imployed part of them in building and is imploying the residue in the same manner Windham The intent of the Defendant in cutting down the Oaks was not to have them imployed in building but to sell them Although it is not necessary for the satisfaction of that Statute that the Oaks presently after the cutting be imployed about building For if the Lessee of a Messuage who is to have House-bote seeing that his Messuage will want reparation cutteth down a Tree for such intent although there be not such urgent occasion at present that it ought to be presently repaired the same shall not be said Trespass for it is good Husbandry to have such Timber to be seasonable which cannot be without some reasonable time between the cutting down and the imployment Periam If at the time of the cutting the Vendor or Vendee had an intent to employ them about building it is good enough And it is a strong Case here because the Defendant imploys the Timber himself in Laths which is not of any use but for building and cannot be made but of Timber CLIV. Eve and Finch's Case Trin. 26 Eliz. In the Kings Bench. PEter Eve and John Finch brought an Action of Trespass against Nathaniel Tracy and Margaret his Wife and upon the pleading the Case was that John Finch Father of J.F. the Plaintiff seised of the Mannor of St. Katherines held the same of the Queen by Knight service in Chief and was also seised of the Land where the Trespass was done being holden in Socage and so seised 6 Junij 20 Eliz. for the preferment of the said Margaret then his Wife enfeoffed of the said Mannor A. and B. unto the use of himself and the said Margaret and their Heirs And that the said John the Father had not any other Land but that before mentioned and that the said Mannor at the time of the said Feoffment and at the death of the said John the Father attingebat ad duas partes of all the Lands and Tenements of the said
that now the time before the forfeiture ought not to be accounted in this Case But the Orginal beginning of the Copyhold shall be holden to be 23 H. 8. when the Grant de Novo by Copy was made between which time and 8 Eliz. is an interval but of 47 years within which time a Customary Interest cannot be attached upon the Land And then before sufficient time encurred c. the Lord may well enter upon such a Tenant at Will For as yet there is not any Custom begotten by sufficient time to bind him It was also agreed by the Iustices That if the Lord of a Mannor is seised of an ancient Copyhold for forfeiture or by reason of Escheat and Lett the same at Will without any Copy for divers years one after the other that that is not any Interruption of the Customary nature of the Land but that the Lord may grant it again by Copy As to other parcel of the Land It was given in Evidence That at a Court lately holden at Northelman It was presented by the Homage there That Taverner the Plaintiff being a Copy-holder of the said Mannor had forged a Customary of the said Mannor containing divers false Customs pretending them to be true Customs of the said Mannor and that he had forged and put a Seal to it about which this word viz. Northelman is engraven And that he had procured divers Copyholders of the said Mannor to set their seals to it and that he said unto them That that Customary should be put into the Church of Northelman amongst the Charters and Evidences of the said Church And that he had now made his Copyhold as good as his Freehold And If the said Offence committed by the Plaintiff ut supra be a forfeiture of his Copyhold was the Question It was argued by Popham who was of Counsel with the Plaintiff That without further matter it was not any forfeiture And yet he confessed It is a forgery against the first branch of that Statute of 5 Eliz. cap. 14. And so he said it was lately adjudged in the Star-Chamber But as to the point of Forfeiture he put this difference If the Lord demand his Services of his Copyholder there If the Copyholder upon debate between the Lord and himself sheweth forth such a forged Customary and Counterpleads the Demand of the Lord with it now it is a forfeiture for that the Inheritance of the Lord is thereby hazarded As if the Copyholder after the forfeiture keep it himself and doth not encounter his Lord in his demand with it in his services the same is not any forfeiture As if the Copyholder before any Rent be due saith That he will not pay any Rent to the Lord hereafter Or when a Court is to be holden That he will not after appear to do any Suit at the Court of his Lord c. But if his Rent being due he denyeth it Or when the Court is holden he saith That he will not do any Suit the same is a foreiture As it was lately adjudged in the Kings Bench in the Case between Sir Christopher Hatton and his Copyholders of his Mannor of Wellingborough So if a Copy-holder being with the other Copyholders charged upon Oath to enquire of the Articles of the Court-Baron and sufficient matter being given to them in Evidence to induce them to find a matter within their Charge and they or any of them obstinately refuse to find the same the same is a forfeiture of his Copyhold As it was adjudged in the Case of Sir Rich. Southwell Knight and Thurston Clench Iustice conceived That in the principal Case the Offence of the Plaintiff is not any forfeiture no more 1 Roll. 508. than if a Copyholder makes a Charter of Feoffment of his Customary Land and delivereth the same as his Deed to the party but doth not execute it by Livery the same is not any forfeiture It was argued by Gawdy Serjeant who was of Counsel with the Defendant to the contrary For he said That if a Copyholder will forge a Deed of Feoffment purporting That the Lord of the Mannor hath enfeoffed him of the said Customary Land notwithstanding that he keepeth such Charter himself without shewing it forth yet it is a Forfeiture At the length The Court wished the Iury to find the special matter and to refer the same to the Court Whether it was a Forfeiture or not In this Case another matter was moved viz. The Auncestor of the Plaintiff had purchased divers several Copyholds from several Copyholders by several Copies whereof he died seised Or committed several Offences by which he forfeited to the Lord all his Copyholds for which the Lord seised and granteth them again to his Auncestor wtih the Ancient Rent and to his Heirs Tenendum per antiqua servitia consueta c. And afterwards the same Copyholder commiteth Waste whether the same shall now trench to forfeit all the Copyhold Lands which were granted ut supra by one entire Copy Or only that which was before the seizure holden by the same Rent Et nihil ultra For these words Tenendum per antiqua servitia do not trench only to the Quantity of the Services but also to the Quality scil severally so as there shall be several Services as before As if A. be seised of Copyhold Land on the part of his Father and of other Copyhold Land on the part of his Mother and thereof dieth seised and his Son and Heir be admitted to it by one Copy and by one Admittance Now if that Son dieth without Issue the Copyholds shall descend severally the one to the Heir on the part of his Father and the other to the Heir on the part of his Mother c. And afterwards the Iury found the Special Verdict and the special matter ut supra c CLIX. Vincent Lee's Case Trin. 26 Eliz. In the Exchequer 1 Inst 138. b. VIncent Lee seised of Lands in Fee had Issue 3 Sons F.G. and J and by his last Will in writing Devised That J. his Son should have the Land for the Term of 31 years without impeachment of Waste to the intent that he pay certain Debts and Legacies set down in his said Will The remainder after the said Term expired to the Heirs Males of the Body of the said J. begotten And further willed That if the said J. die within the Term aforesaid that then G. his Son shall have such Term c. and then also shall be Executor but made the said J. his present Executor and died J. entred by force of the Devise F. died without Issue by which the Feesimple descended upon J. who had Issue P. and died within the Term P. entred G. as Executor entred upon him and he re-entred upon which re-entry G. brought Trespass Pigott said That the Term by the descent of the Fee from F. to J. being the second Son of Vincent and Heir of F. is not extinct but only suspended It hath
to all Quietness seeking all means to disquiet his Neighbors and hath used himself as a Lawless person and having Process to serve upon one in the Parish viz. the Parson did keep the Process and would not serve it but on the Sabbath day in the time of Divine Service not having regard to her Majesties Laws or the Quiet of his Neighbours Vpon which Bill the Iustices to whom it was exhibited awarded Process against the Plaintiff to find Sureties for his good behaviour It was the Opinion of the Iustices That upon this matter an Action would not lie CLXXVII Mason's Case Trin. 26 Eliz. In the Kings Bench. MAson Leased certain Lands to one R. for years and afterwards leased the same Lands to one Tinter for years Tinter Covenanted with the Defendant That if the said R. should sue the said Mason by reason of the later Lease that then he would discharge or keep harmless without damage the said Mason and also would pay to him all the Charges which he should sustain by reason of any suit to be brought against the said R. in respect of the said former Lease And Mason by the same Indenture Covenanted with Tinter That the said Land demised should continue to the said Tinter discharged of former Charges Bargains and Incumbrances And now upon the second Covenant Tinter brought an Action of Covenant and shewed That the said R. had sued him in an Action of Ejectione Firme upon the said first Lease and had recovered against him c. And Mason pleaded in Bar the said second Covenant intending that by that later Covenant the Plaintiff had notice of the said former Lease made unto R. so as the first Lease shall be excepted out of the Covenants of former Grants for otherwise there should be circuity of Action But the Opinion of the whole Court was to the contrary For the Covenant of Mason shall go to the discharge of the Land but the Covenant of Tinter only to the possession CLXXVIII Knight and Beeches Case Pasch 27 Eliz. Rott 1127. In the Common Pleas. 1 And. 173. Coke 5. Rep. 55. 1 Len. 12. 2 Len. 134. WIlliam Knight brought Ejectione Firme against William Beech. The Case was That the Prior of St. Johns of Jerusalem 29. H. 8. with the assent of his Covent leased by Indenture divers Houses in Clarken-well in the County of Middlesex for fifty years to one Cordel rendring Rent 5 l. 10 s. and 11 d. at four Feasts of the year usual in the City of London viz. for such a Messuage called The High-House 14 s. for another House 3 s. 11 d. for another House xx s. c. Et si contingat dictum annualem redditum 5 l. 10 s. 11 d. a retro fore in parte vel in toto ultra aut post aliquem terminum solutionis in quo solvi deberet per spatium trium mensium c. quod tunc ad omnia tempora deinceps ad libitum c. liceret dicto Priori Successoribus suis omni tali personae personis quam vel quas dictus Prior Successores sui nominarent appunctuarent sine scripto in omnia dicta tenementa totaliter re-entrare c. And afterwards 32 H. 8. the said Hospital of St. Johns was dissolved and the possessions of it granted to the said King and afterwards the said King 36 H. 8. gave the said House upon which the said Rent of 20 s. was reserved to one Audley c. in Fee And afterwards the now Queen being seised of the residue a Commission issued out of the Exchequer bearing Date 8 Maii 23 Eliz. Ad inquirendum Utrum the Defendant to whom the Interest of the said term did appertain perimple visset performasset omnes Provisiones fact reservat in super praedict Indenturam necne Office was found before the Grant and after 25 August following the said Queen by her Letters Patents gave the said House called The High-House to Fortescue the Lessor of the Plaintiff and afterwards Tres Mich. the Commission was retorned by which it was found all as aforesaid Et quod Termini Festi Solutionis in London are Michaelmas Christmas Annunciation and Mid-summer and that at the Feast of Michaelmas such Rent was behind for the space of three Months c. It was argued in this Case by Gawdy Serjeant on the part of the Plaintiff That here are several Rents for the entire Sum by the viz. is distributed into several Portions which make several Rents and to that purpose he cited Winter's Case 14 Eliz. Dyer 308. A Lease for years is made of the Mannors of A.B. and C. rendring for the Mannor of A. xx s. and for the Mannor of B. x s. and for the Mannor of D. x s. with a Condition for the Non-payment of the said Rents or any of them or any part or parcel of them within one Month c. then a Re-entry Here are several Rents And he conceived That a Condition in the Case of the King might be apportioned For a Rent-charge and a Condition are in the King in better Condition than in a Subject for the thing may distrain for a Rent-charge in all the Lands of him who is seised of the Land out of which such a Rent is issuing and if a Rent-seck be due to the King he may distrain for the same and the King shall never demand his Rent which he hath reserved with Clause of Re-entry and it appeareth in the Register That if before the Statute of Westm 3. the King purchaseth parcel of the Land holden of him the Rent shall be apportioned which was not in the Case of a Common person and there are in the Exchequer divers Presidents to that effect scil If A. be bounden in a Recognizance to B. and afterwards enfeoffeth the King of part of his Land and C. of the other part If B. be afterwards attainted of Treason so as the said Recognizance accrueth to the King that now notwithstanding that he hath part of the Land lyable to the Recognizance he shall have Execution of the residue And see F. N. B. 266. If after the Recognizance acknowledged the Conusor enfeoffeth of certain parcels of his Lands several persons and of the Residue enfeoffeth the King that Land which is assured to the King is discharged of the Execution but the residue shall be charged So that the possession of the King doth alter the Nature of the Rent Condition and Execution Fenner Serjant Contrary And he said That this Grant before Office retorned was not good for without Office the King cannot enter multo minus his Patentee and that the King by the Grant hath interrupted the Relation of the Office As if a Man by Indenture bargaineth and selleth his Lands and afterwards makes Livery to the Bargainee and afterwards the Deed is enrolled Now the party shall not be said to be in by the Bargain and Sale but by the Livery for the Livery hath interrupted the
force of the first assurance by way of Bargain and the Relation is utterly gone So in our Case The Grant of the Queen mean between the Award of the Commission and the Retorn of it hath destroyed the force and effect of the Commission so as no appearance shall be had of it And he agreed That here are several Rents but the Condition is entire and admit that a Condition may be apportioned in some Cases yet in some Cases it cannot And the Statute of 32 H. 8. gives the Condition and the Reversion to which it is annexed to the King in such sort as it was in the Prior But the Condition in the Prior was not capable of Apportionment and therefore no more it shall be in the Case of the King. As where a Recognizance is acknowledged whicâ— cometh to the King by the Attainder of the Conusee Now if the King will sue Execution upon it he shall not have the whole Land of the Conusor in Execution but only the moyety by Elegit c. This Case afterward Trin. 28 Eliz. for Difficulty was adjourned into the Exchequer-Chamber and there argued before all the Iustices and Barons of the Exchequer And Shuttleworth Serjant argued for the Plaintiff And first he said Here are several Rents and so several Conditions especially when all the things demised are of such a Nature that they may yield a Distress but if any of the things demised cannot yield Distress then it shall be one entire Rent and shall issue out of the Residue c. Which see 17 Ass 10. An Assise was brought of 20 s. Rent and the said Rent was reserved upon a Lease for life made of 100 Acres of Lands and 15 Acres of Wood scil for the Land 10 s. and for the Woods 10 s. And by the Assise it was found the Disseisin in the Wood but not in the Land. Wherefore it was awarded That the Plaintiff should recover seisin of the 10 s. and for the residue that he should take nothing And although these words reddendo inde Trench unto all the things demised entirely yet this word viz. is a distributive and makes an Apportionment And the viz. is not contrary to the premisses scil to the reddendo inde As if I enfeoffe A. and B. of an Acre of Land Habendum the one moyety thereof to A. in Fee and the other moyety to B. in Fee this is good for it well stands with the premisses But if I enfeoffe A. and B. of two Acres of Lands Habendum the one Acre to A. and the other to B. the same Habendum is void because contrary to the premisses for each of them is excluded out of one Acre which was given to him in the premisses And in our Case If the Rent set forth in the Viz. had been greater or less than that which is reserved upon the Reddendo then the Viz. should be void for the contrariety and the Reddendo stand Walmesley contrary And that here is one entire Rent Which see to be so by the close of the Condition Si Redditus praedict ' aut aliqua inde parcella c. And the Lessor may distrain in any part of the Land demised for the whole Rent notwithstanding the Viz. And it was moved by Shuttleworth That admit the Rent and Condition be entire Yet now when the King grants the Reversion of one of the things demised in Fee to a stranger the Condition remains and not determined by the destruction of the Reversion as in the case of a Subject For the King hath divers Prerogatives by which he is exempted and protected from such Mischiefs and Inconveniences which happen to Subjects by their own Acts and their Laches and Folly which shall not be imputed to the King And the reason of Extinguishment of a Condition in such case in the case of a Common person is his own Folly that he will distrahere his Reversion And Folly shall never be imputed to the King And as the Case is here the King is not bound to take notice of a Condition made by a Common â—erson For it is not matter of Record and by this Grant of the King the Rent doth not pass for the Grant is only of the Reversion without any mention of the Rent And the King hath divers Prerogatives in a Condition As in the creating of a Condition 35 H. 6. 38. The Abbot of Sion's Case Ad effectum is a good Condition in the Case of the King by Prison And where the King grants Lands in Fee to one upon Condition That the Grantee shall not alien the same is a good condition So for a Rent-Seck the King may distrain And the King may reserve a Rent and a Condition to a stranger and if he doth reserve a Rent and a Condition to himself he may grant the same over to a Subject 2 H. 7. 8. And the Condition in the case of a Common person may be apportioned As if Lessee of two Acres upon Condition alien one of them in Fee and the Lessor entreth for the forfeiture or recovereth part in an Action of Waste c. but of a surrender it is otherwise Walmesley contrary The Condition is gone For a Condition in the hands of the King is of the same Nature as in the case of a common person impatient of any Division Partition or Apportionment As if the King hath a Rent out of 3 Acres of Land and afterwards purchaseth one of them the Rent is utterly gone and shall not be apportioned as well as in the Case of a common person So of a Common And as this Case is If the Condition doth remain then upon the breach of it the King shall enter into the whole for the words of the Condition are Wholly to re-enter and so he should defeat his own grant And he cited a Case adjudged at the Assizes at York The King gave Land in Fee-Farm rendring Rent with Clause of re-entry The King granteth the Rent over to a stranger And after the Rent is behind The King cannot re-enter nor the Grantee It was also moved If the Iurors of Middlesex might enquire of the usual Feast days in London Shuttleworth That they might do so See 5 H. 5. 23. Where a Commission issued out to enquire in the County of Surrey of Escheats words c. who found that A. held of the King in Chief and took to Wife one E. Cosen of A. within the Degrees they then knowing of it and had Issue betwixt them and afterwards they were Divorced in the County of Kent c. And Exception was taken to that Office Because the Enquest of Surry had found a Divorce in the County of Kent Another matter was Because the Iurors have found the breach of the Condition And before the Iurors had put their Hands and Seals to the Inquisition the Queen granted part of the things demised in his hands to Fortescue After which Grant the Inquisition was sealed and Retorned into the Exchequer If
not bind him to that nor did prescribe any time but left the same generally Yet it was the Opinion of the whole Court That he should have the Averment at the time of the Voucher or not at all So the Statute of 11 H 7. Cap. 20. If a Woman who hath a Ioynture for life or in tail suffereth a Recovery and afterwards the Issue in tail releaseth all his Right by Fine and dieth his Issue may enter for the assent ought to be by Voucher in the same Action or the like for if there be a mean instant between the Recovery and the Assent then any assent after is nothing to the purpose for the Recovery being once void by the Statute cannot be made good by an assent afterwards See Doctor and Student 54. And yet the Statute is Provided That the Statute shall not extend to any such Recovery c. if the next Heir be assenting to the same Recovery c. so as the same assent or agreement be of Record or inrolled And it doth not say That the Assent should be at one time or at another But to come to Leases upon Statutes Before the Statute of 2 E. 6. Cap. 8. If Leases had not been found by Offices the Lessees should have been ousted and put to their traverse But put Case that after that Statute a Lease made to begin at a day to come were not found by Office should it be helped by that Statute No truly And so it is holden in the Court of Wards at this day and the Lord Chief Iustice of England held so in his Reading at Lincolns-Inn The Statute of 1 Eliz. of Leases to be made by Bishops is That Leases other than for 21 years from the time that they begin that is when they may take effect as Deeds and not when they shall take effect to be executed For so they might make Leases infinite c. It was adjourned c. CLXXXV Lewen and Mody's Case Mich. 28 29 Eliz. Rot. 2494. In the Common Pleas. IN a Replevin brought by Lewen Doctor of the Civil Law against Mody who made Conusans as Bailiff to one Fowke and shewed That 14 Elizabeth the morrow of the Purification a Fine was levied between Lovelace and Rutland Plaintiffs and the said Fowke and other Deforceants by which Fine the said Deforceants acknowledged the said Mannor to be the right of the said Lovelace and Rutland come ceo c. And the said Lovelace and Rutland by the same Fine granted and rendred to the said Fowke a Rent of 20 l. per annum in Fee out of the said Mannor And for the Rent arrear c. And the Plaintiff in bar of the Conusans shewed That the said Fowke being seised of the said Rent granted the same to one Horden c. Vpon which Grant they were at Issue And the Iury found That the said Fowke being seised of the said Rent by Indenture reciting That whereas a Fine was levied between Fowke and 7 others Plaintiffs and Lovelace and Rutland Deforceants as the rest ut supra granted redditum praedict to Horden and further found that no other Fine was levied between the parties aforesaid but the said Fine and that the parties to the Fine were seised of the Mannor at the time of the Fine levied and of no other Land And if this Rent so described by the said Indenture should pass or not was the Question And it is to be observed That the Indenture of Grant between Fowke and Horden recited a Fine of the Mannor of Coleshall inter alia where the Iury have found That the Fine was levied of the said Mannor only And it was argued by Shuttleworth That the said Rent did not pass to Horden by the said Indenture for the Rent bescribed by the Indenture is not the Rent which was granted by the Fine And if I let Lands for years to A. and afterwards A. grants the Land which B. holds of me the Grantis void As 13 E. 3. Grants 63. Land is given to Husband and Wife for their lives And the Lessor grants the Reversion of the Land which the Husband holdeth for life nothing passeth Walmesley contrary The variance in the Fine shall not avoid the Grant For the Indenture of the Rent agrees with the Fine in the Term in the year of the Reign and in the name of the parties to the Fine in the quantity of the Rent and in the Land charged the only difference is in the phrase of Law Deforceant for Plaintiff and it is granted that that is but a matter of Circumstance and not of substance Snag Serjeant contrary And first he took Exception to the Verdict for this that a special Verdict is given upon a special Absque hoc And the Lord Anderson interrupted him That it was a clear Case That such a Verdict upon such an Issue might be found And so it was adjudged in the Case between Vavasour and Doleman Fenner argued as Walmesley The Grant agrees with the Fine in the points of greatest importance and one falsity shall not prejudice it where there are so many verities which may induce the Court to judge That the Rent granted by the Indenture is the Rent created by the Fine and in a Fine the substance is not Who was Deforceant who was Plaintiff but who was party to the Fine And that some of the parties to the Fine were seised of the Land of which the Fine is levied And if the Indenture had been Whereas such a Rent was granted by a Fine levied between A. and B. without shewing who was Plaintiff and who Deforceant it had been good enough And although that in this Case the Plaintiff and Deforceant are mis-set down yet the same shall not make the Grant void for utile per inutile non vitiatur So if I reciting The Original Grant was made to me by Indenture Tripartite between A. of the first part B. of the second part and my self of the third part whereas the Indenture it self is Between myself of the first part the same is not material c. For such a small mistaking shall not avoid the Grant. So if I by my Deed reciting That whereas I am possessed of certain Lands for Term of years of the Demise of Sir Christopher Hatton Knight Treasurer of England whereas in truth he is Chancellor that mistaking of the Dignity shall not prejudice the Grant. And it was Agreed by all the Iustices If the said Fine had been pleaded at it is recited in the Indenture mistaking the Plaintiff and Deforceant he who had so pleaded it had failed of his Record But in the Case at Bar the reciting who was Plaintiff who Defendant was matter of surplusage and therefore it shall not hurt the party As 23 Eliz. Dyer 376. A. seised of a House in D. which he purchased of Tho. Cotton he made a Feoffment thereof by these words A House in D. late Richard Cotton's And notwithstanding this variance it was good enough
the 18th day Cook The Iudgment for the Queen upon an Information of Intrusion is Quod defendens de Intrusione transgressione Contemptu praedict convincatur c. And afterwards a Commission shall issue forth for to enquire of the Mean profits and there the Defendant may shew this matter in taking of the damages And if the Intrusion be at any time in the Information it is sufficient enough to have Iudgment upon it and in our Case the Continuance is laid 18 May. Egerton Sollicitor The Record warrants the Iudgment given upon it For possession laid in the Queen is sufficient to this Information And here Payn doth not answer the Queens title but traverseth the Intrusion And therefore he being found Intrudor by Verdict Iudgment ought to be given upon it For the Iury have found the Intrusion generally and specially 17 May. And that cannot be assigned for Error for it is part of the Verdict of which Error doth not lie but Attaint For if any Error was it was in the Iury and not in the Court. Which Manwood Concessit Tanfield As to the Case of Continuance of an Intrusion it is clear That every continuance ought to have a beginning for a thing which hath no beginning cannot be continued and here is not any beginning for the beginning which is laid in the Information is pretended to be 17 May and that cannot be causa qua supra Popham If an Information be brought of an Intrusion where in truth there is not any Record to prove it and the Iury find the Intrusion shall you have a Writ of Error upon it And every continuance of Intrusion is an Intrusion This Matter had been good Evidence to the Iury. Sed non habet locum hic c. CXCVI. Sir John Southwell's Case Hill. 28 Eliz. In the Exchequer SIr John Southwel of the County of Lanc. 7 July 2 Len. 132. 19 Eliz. made a Conveyance of all his Land to divers Feoffees and their Heirs upon Condition That they should find him and his Wife and so many persons in his House c. prefer his Daughters in Marriage pay his Debts c. And if there fell out at the years end upon Accompt made by the Feoffees any surplusage that then at the end of every such year they should answer such surplusage as should then remain in their hands unexpended of the Rents and Profits of his said Lands with Clause of Revocation c. Afterwards the said Conveyance being in force came the Statute of 23 Eliz. concerning Recusants Vpon which Statute the said Southwel was now Indicted And afterwards a Commission issued out of the Exchequer to the Sheriff of Lancast to enquire of the Lands of the saith Southwel And although against the said Conveyance it was given in Evidence That after that Conveyance the said Sir John Southwel had granted Trees out of the said Lands and had taken Fines and Incomes for Leases c. Yet the Iurors charged to enquire would not find That the said Sir John had any Lands c. And by special Commandment of the Queen it was referred out of the Exchequer to all the Iustices of England If the Lands of the said Sir John Southwel contained ut supra were subject to the said Statute and the penalties thereof And upon great deliberation had It was by them all Resolved and Agreed That notwithstanding that Conveyance the said Lands were lyable to the said Statute And as to the Iurors which against their Evidence given unto them for the Qeeen gav their Verdict ut supra process was awarded against them out of the said Court for to appear before the Lord Treasurer and the Barons of the Exchequer And for their said Contempt they were committed to the Fleet and each of them fined 20 l. CXCVII Hill. 28 Eliz. In the Common Pleas. IN a Writ of Entry Sur Disseisin The Tenant said That the House in demand is within the City of London and that the said City is antiqua Civitas And that King Hen. 3. Concessit civibus Civitatis praedict quod non implacitentur de Terris Tenementis suis c. extra muros Civitatis praedict And further said That he himself is Civis London c. and demanded Iudgment of the Writ Note in the pleading before the Tenant said illis rectum teneatur intra Civitatem praedictam secundum Consuetudinem Civitatis praedict And to this Plea Exception was taken because that the Tenant doth not shew before whom by their Custom they ought to be impleaded It was the Opinion of the whole Court That the Tenant ought to have shewed That the Citizens for their Lands ought to be impleaded in the Hustings c. And the general words in the plea scil Sed illis rectum teneatur intra Civitatem praedictam secundum Consuetudinem Civitatis praedict did not supply the defect aforesaid After It was awarded by the Court That the Tenant answer further c. CXCVIII. The Lord Anderson's Case Mich. 29 Eliz. In the Common Pleas. THe Lord Anderson Chief Iustice of the Common Pleas 1 Roll. 189. brought an Action of Trespass by Bill for breaking of his House in the City of Wor. against one A. Citizen of the said City Now came the Mayor and Communalty of the said City and shewed their Charter granted to them by King E. 6. and demanded Conusans of Pleas. And by the Award of the whole Court the Conusans shall not be granted because that the Priviledge of this Court whereof the Plaintiff is a principal Member is more antient than the Patent upon which the Conusans is demanded For the Iustices Clarks and Attornies of this Court ought to be here attending to do their Offices and Services as belongs unto them and shall not be impleaded or compelled to implead others elsewhere than in this Court. And this Priviledge was given to this Court upon the Original Erection of it And such was the Opinion of the whole Court. And as for the Conusans it was denyed CXCIX Cocket and Robston's Case Mich. 29 Eliz. In the Common Pleas. ARthur Cocket Thomas Andrews and A. his Wife 2 Len. 118. Post 192. 230. 1 Len. 219. 1 Len. 302. brought an Action of Accompt against Robston and Declared That one Mountford by the hands of Jo. Wase had delivered 100l to the Defendant pro relevamine of the said Arthur and Anne The Defendant pleaded Ne unque Receiver pur accompt render Vpon which they were at Issue And Iudgment was given That the Defendant should accompt Who before Auditors assigned alledged That he had expended the said 100l in the Education of the said Arthur and Anne by the space of 8 years after the delivery of the said 100l Vpon which they were at Issue And upon Evidence it was shewed on the Plaintiffs part That heretofore the said Arthur brought a Writ of Accompt against the said Robston as Guardian in Socage for the Land of the said Arthur discended And upon the
the Plaintiff who said That the Extent by computation of time according to the value to which it was extended is not yet satisfied The Verdict hath found that the Extent continued until 22 Eliz. hut doth not say that it was then expired and ended And I conceive also that this Extent doth not evict the Interest of Sir Thomas Cotton or turn it into a possibility The extent is Quousque leventur denarii but yet a Limitation of time is in Law understood although by a Casualty such time may be abridged or extended Which see 15 H. 7. 16. by Fairfax Where a Man is bounden by Statute to pay 40 l. and the Conusee sueth Execution upon it and the Land extended is rated at 10 l. per annum now it shall be intended by a common intent that in 4 years the party may be satisfied and therefore after the 4 years the Conusor shall have a Scire facias so upon the matter it is a Lease for 4 years So 7 H. 7. 12. by Keble to the same purpose And 15 E. 4. 5. by Brian for the Law shall not intend a casualty without alledging of it for the same shall not be by imagination And therefore If the Conusor will have the Land within the Term he ought to alledge That the Conusee hath levied the duty by an extraordinary Casualty and shew it specially And so where the Conusor sueth a Scire facias and the Conusee will hold the Land over he ought expresly to surmise some extraordinary occasion wherefore he could not levy the duty upon the Land within the Term Which see by Brian 15 E. 4. 5. and 44 E. 3. The Conusee of a Statute after extent maketh a Lease for 3 years yet it may be that the duty shall be levied within one year but if it be so then a Scire facias shall issue forth against the Conusee and not against the Lessee for the Law intends that the whole estate of the Conusee is not granted but that he hath a Reversion in him but if he hath granted his whole estate then a Scire facias shall issue forth the Grantee So here although that this extent in our Case would continue by computation of time for some of the years of the Term granted to Sir Thomas Cotton yet it is intended that the extent did run out and was determined before the expiration of Sir Thomas Cotton's Term so as notwithstanding that Sir Thomas Cotton hath an Interest left in him which he may grant It will be Objected How can it be said an Estate for years when as he might hold over the years As to that such an Interest may be put off in divers Cases As 15 H. 7. A Man grants to another the third Avoidance of such a Church and dieth seised his Wife is endowed of the Church she shall have the third Avoidance and the Grantee shall have the 4th Avoidance and so per talem intervenientem occasionem the benefit shall be delayed and so here in our case And then the estate by Extent being prima facie certain so as it cannot by intendment surmount the Term of Sir Tho. Cotton as it appeareth upon the Extent the estate shall be taken to continue according to the extent of the years and then a certain Interest doth remain in Sir Thomas Cotton which he may grant over which is not a possibility but rather a Reversion So and to such purpose is the Case of 7 H. 5. 3 4. If the eldest Son entreth after the death of his Father and afterwards his Mother recovereth Dower that shall take away the possessio fratris but if the Son maketh a Lease for life and the Wife recovereth Dower against the Lessee there shall be possessio fratris for the Reversion doth remain in the Lessor notwithstanding the eviction of the estate for life And 7 H. 6. 2. there it is holden by Goddard and Strange That where the Term of the Wife was extended upon the Statute of the Husband who died the Wife shall have the residue of the Term and avoid the extent as to her Term which proves that all the Term is not drawn to the Conusee by the Extent but that an Interest doth remain in the Lessee notwithstanding that And see by Seton 29 Ass 64. If Lessee for life Leaseth to him in the Reversion for life yet he hath a Reversion in him And 31 Ass 6. A. is bound by Statute to B. and his Land extended by force of it C. recovers against B. in Debt and the Land extended by him upon the Statute 1 Roll. 887. is now extented by Elegit A. grants his Estate to the Conusee it is no surrender which proves that B. hath an Interest And so in our Case an Interest doth remain in Sir Thomas Cotton notwithstanding the Extent A. makes a Lease for years to begin at a day to come and before the day A. is disseised The Lessee notwithstanding this Disseisin may grant his Interest for he never was in possession and therefore it cannot be turned into a Right As to the second point If Robert Cotton may enter within the time of the Extent without a Scire facias and that rests upon this point If this Lease shall be subject to the Extent I conceive clearly that it shall not It hath been said That our Lease is not good But I conceive it without question that our Lease is good enough For it is made by the Husband and Wife and the Wife after the death of her Husband by Acceptance of the Rent might affirm the Lease But the Statute is the act of the Husband alone therefore the Conusee of the Fine shall not avoid the Lease for it is but voidable So the King grants Lands durante beneplacito and afterwards grants the Reversion over the Patentee shall not avoid the Estate But if this Lease had been made by the Husband only it had been void and then the Conusee of the Fine should avoid it as it was lately adjudged in Harvy and Thomas 's Case And I conceive That if Tenant in tail acknowledgeth a Statute and afterwards makes a Lease according to the Statute of 32 H. 8. and dieth the Lessee shall not hold the Land subject to the Statute for then the Rent should not be paid to the Issue in tail during the Statute which is against the Stat. of 32 H. 8. And see also 8 Eliz. Dyer 252. The Chaplain of a Donative Chappel Leased for 99 years which was confirmed by the Patron who was Tenant in tail of the Patronage which was appendant to a Mannor whereof he was seised in tail and afterwards he had Issue and died The Statute of Chauntries cometh after the death of the Incumbent the King shall avoid this Lease And in our Case after the Coverture the Conusee is in by the Wife and then he shall avoid the Statute extended upon it And if so then there needeth not any Scire facias as the
Issue in tail may enter upon the Conusee of a Statute acknowledged by his Father For if Execution had been sued against the Issue in tail it had been a Disseisin And see 2 R. 3. 7. That in such case the Wife or her Heirs may enter upon the Conusee And by Consequence the Conusee who is in by her c. Cook contrary I conceive that this Grant of this Lease by Sir Thomas Cotton to his Son is not good 2 Roll. 48 1 Cro. 15. 1 Inst 22. b. for it is but a possibility and no Interest I agree all the Cases which have been put before for Law but they cannot be applyed to this Case The Book in 7 H. 6. 2. is That if the Term of the Wife be extended upon the Statute of the Husband that the Wife shall have the residue after the death of the Husband but it doth not say that the Wife or her Husband may grant it during the Extent which is the matter now in Question And I conceive That Sir Thomas Cotton hath but a possibility For the Conusee upon the Extent hath but an incertain Interest And although it may be by some means reduced to a certainty in the Chancery where the Costs and Damages shall be assessed yet until it be reduced to a certainty it cannot be granted And therefore it is clear That if I have a Term for 8 years in Land and grant it unto another until he hath levied 100 l. and all his Costs of suit for it by this Grant all the Interest of the Term is in the Grantee and nothing is in me but a possibility 8 Co. Mannings Case And so it was holden in the Common Pleas by the Lord Anderson the day when he was made Chief Iustice there At which time this Case was put Lands of the yearly value of 20 l. are Leased to one until he hath levied 100 l. And the matter was What estate the Grantee hath And it was holden That if Livery be not made that he hath but an estate at Will for the profits of the Lands are incertain the one year more and the other year less And Bromley Lord Chancellor was then of the same Opinion Then if in case of a Lease it be so it shall also be so in case of an Extent and in both the Cases the whole Interest is out of the parties And 19 Eliz. the Case was in this Court That the Lessee for years devised his Term to his Executors for the payment of his Debts and Legacies and after the payment of them the residue of the years he devised to his Son The Executors enter which is an assent to the remainder he in the remainder grants his Interest And it was holden void because it was but a possibility and so incertain and although it might be reduced to a Certainty afterwards yet the same is not sufficient for it ought to be reduced to a certainty at the time of the grant And 17 Eliz. in this Court the Case was That Land was given to the Husband and Wife and to the Heirs of the Husband the Husband makes a Lease for years and dieth the Wife enters and entermarrieth with the Lessee And it was moved If the Interest of the Lessee by the entermarriage was extinct And it was holden That it was not for it was but a possibility and not an Interest quod fuit concessum per totam Curiam And if a possibility cannot be extinct then it cannot be granted And he denyed the Case put by Stephens Where a Man seised of Lands Leaseth the same for years to begin at a day to come and afterwards before the day the Lessor is disseised now during that Dissesin the Grantee cannot enter for his future Interest For the Feesimple being turned into a Right so also shall be the Interest And that is proved by Delamere's Case A Feoffment in Fee was made to the use of A. for life and afterwards to the use of C. for life and afterwards to the use of D. in Fee and afterwards A. enfeoffed a stranger who had notice of the use The same doth take away all the other uses and said Feoffee although he had notice of the use yet he shall not be seised to the first use for the estate out of which the first uses do arise is taken away and then also the uses And he said also That the Lease made to Sir Thomas Cotton is not good for it was made 11 Eliz. And it is found by Verdict That 10 Eliz. a Writ of Extent issued forth upon the Statute then was the Lands in the hands of c. during which time the Lord Mount joy and his Wife could not make the Lease aforesaid to the said Sir Thomas Cotton And as to that see 5 E. 3. Retorn of the Sheriff 99. See the Case of 3 E. 6. Dyer 67. Stringfellow's Case Then admitting the Lease to Sir Thomas Cotton yet the Lessee cannot put out the Conusee without a Scire facias for the Conusee is in by matter of Record Also here this Lease made by the Husband and Wife without any Rent reserved is utterly void and then the Conusee shall take advantage of it 9 H. 7. 24 18 E. 4. 2. And so was it ruled in the Case of Seniori puero in the case of an Enfant And see 7 Eliz. Dyer 239. Where the Provost of Wells being Parson impersonee of the Patronage of W. Leased the Tythe for 50 years rendring Rent which was confirmed by the Dean and Chapter but not by the Patron and Ordinary And afterwards by Act of Parliament the Provostry was united to the Deanery cum primo vacare contigerit The Provost died the Dean accepteth the Rent The same shall not bind the Church for the Lease is void as it is of a Parson or Prebend c. And so the Dean shall take advantage of it although not privy to it See 16 Eliz. Dyer 337. Lands given to a Parson and his Successors for to find Lights and he Leaseth the same for life The Rent is so imployed accordingly The Incumbent dieth The Successor accepteth the Rent the King grants it over The Patentee shall avoid the Lease as the Successor might have done before the Statute if he had not accepted the Rent but the acceptance before the Statute shall bind the Successor for that it was but a voidable Lease And the Case between Harvy and Thomas which hath been put on the other side serves to our purpose for there the Conusee shall avoid a Lease in Law which is void and here in the Principal Case the Lease is void for that no Rent is reserved upon it Wherefore c. It was adjourned CCVI. Beadle's Case Mich. 29 30 Eliz. In the Kings Bench. THe Case was That A. Leased to B. certain Lands for 40 l. per annum 2 Len. 115. And a stranger Covenanted with A. That B. should pay him 40 l. for the Farm and Occupation
of the said Lands A. brought an Action of Covenant The Defendant pleaded That before the day of payment the Plaintiff put the said B. out of his Farm It was moved by Godfrey That the same is no plea For this is a Collateral sum and not for Rent issuing out of the Land Also the Defendant is a stranger to the Contract for the Farm. But the Opinion of the whole Court was clear to the contrary For the Defendant hath Covenanted That the Lessee shall pay for the said Farm and Occupation 40 l. so as it is as a Conditional Covenant and here is Quid pro quo and here the Consideration upon which the Covenant is conceived scil the Farm and the Occupation of it is taken away by the Act of the Plaintiff himself and therefore the plea is good and the Action will not lie CCVII. The Archbishop of York and Morton's Case Pasch 29 Eliz. In the Common Pleas. THe Archbishop of York recovered in an Assise of Novel Disseisio against one Morton before the Iustices of Assise 1 Len. 55. upon which Iudgment Morton brought a Writ of Error retornable before the Iustices of the Common Pleas And after many Motions at the Bar it was adjudged That a Writ of Error upon such Iudgment doth not lie in the said Court. Which see 8 Eliz. Dyer 250. See also N. B. 22. e. That upon Erroneous Iudgment given in the King Bench in Ireland Error shall be in the Kings Bench in England 15 E. 3. Error 72. And Fenner who was of Counsel with the Archbishop demanded of the Court How and in what manner the Record shall be sent back to the Iustices of Assise so as the said Archbishop might have Execution To which the Court answered That the surest way is to have a Certiorari out of the Chancery into the Common Pleas directed to the Iudges there and then out of the Chancery by a Mittimus to the Iustices of Assise But Fenner made a doubt to take such Course for such remanding Then Anderson Chief Iustice said Sue Execution out of the said Record for in as much as the Record came before us by Writ of Error it shall also be removed and sent back by Writ And so it was done CCVIII The Queen and Hurleston's Case Hill. 29 Eliz. In the Kings Bench. 2 Len. 194. THe Queen brought a Scire facias against Hurleston to Repeal a Patent made to him of the Constableship of Chester and Iudgment was given for the Queen And now Hurleston brought a Writ of Error against the Queen in the Kings Bench. And it was moved by Gawdy Serjeant That the Writ did not lie for the manner for that he ought first to have sued to the Queen by Petition See 22 E. 3. 3. 23 E. 3. Fitz. Error 9. If the King recover by an Erronious Iudgment a Writ of Error cannot be granted upon such a Recovery sine gratia Regis speciali And he said That in Chester they have Courts of Common Pleas Kings Bench Exchequer and Chancery And that if Iudgment Erronious be given in the Chancery at Westminster It cannot be reversed but by Parliament and so it is of an Erronious Iudgment given in the Chancery at Chester Also he said They have a Custom in London That within one month they may reverse their own Iudgment See 23 Eliz. Dyer 376. Erronious Iudgment given in the 5 Ports cannot be reversed in the King Bench but it is reversable in the Court of the Guardian of the 5 Ports Clench Here both the parties claim by the Queen therefore there needeth no Petition for valeat quantum valere poterit it is no prejudice to the Queen Cook There needs no Petition here for the Attorny General hath subscribed our Writ of Error Egerton Sollicitor General It was the Case of Eliz. Mordant who was to reverse a Fine levied during her Nonage and the proceedings were stayed because she had not sued to the Qeen by Petition See the Case of 24 E. 3. 35. the Case of William de Ingularby who sued to reverse a Iudgment given against him in a Writ of Conspiracy in the Eyre of Derby and there it was said by Thorp Iustice That he must first sue to the King by Petition Wray An Outlawry may be reversed by bringing a Writ of Error without suing Petition to the King. CCIX. Beckwith's Case Hill. 29 Eliz. In the Common Pleas. 5 Co. 19. ROger Beckwich by Indenture Tripartite between him of the first part William Vavasour Frances Slingsby and Elizabeth Sister of Roger of the second part George Harvey and Frances Wife of the said George the said Frances being another of the Sisters of the said Roger of the third part Covenant with the aforesaid William Vavasour and Frances Vavasour his Daughter and with the aforesaid George and Frances cum quolibet qualibet eorum That the said Roger at the sealing and delivery of the said Indenture was lawfully and solely seised of the Rectory of Aldingfleet in the County of York discharged of all Incumbrances Francis Vavasour took to Wife Frances Slingsby And Note That by the same Indenture Roger Beckwith Conveyed the said Rectory to the said Francis Vavasour Francis Slingsby and Frances his Wife brought an Action of Covenant against the said Roger Beckwith and assigned the Breach in this That the said Roger was not seised of the said Rectory And Note That the Plaintiff declared of an Indenture bearing date at the Castle of York And upon the breach of the Covenant they were at Issue which was found for the Plaintiff and damages assessed and Iudgment given for the Plaintiff And Note That the Venire facias was de Vicineto Castri de York And upon that Iudgment a Writ of Error was brought in the Exchequer upon the new Statute and Error was assigned because all the Covenanters ought to have joyned in the Action of Covenant notwithstanding those words cum quolibet cum qualibet which words do not make the Covenant to be several And for that cause the Iudgment was Reversed Another Error was assigned because the Issue is not well and duly tryed For the Issue is upon the seisin of the Rectory of Aldingfleet in which case the Venire facias ought to have been de Vicineto de Aldingfleet And of that Opinion was Manwood and Anderson Iustices CCX Young and Ashburnsham's Case Hill. 29 Eliz. In the Common Pleas. IN an Action of Debt brought by the Administrators of Young against Ashburnham The Defendant pleaded Nihil debet And the Enquest was taken by default And upon the Evidence given for the Plaintiff the Case appeared to be this That the said Young was an Innholder in a great Town in the County of Sussex where the Sessions used to be holden And that the Defendant was a Gentleman of Quality in the Country there And he in going to the Sessions used to lodge in the house of the said Young and there took his lodging
Also the words Of the Mannor of Fremmington and Hundred are put amongst others which are Mannors in truth By which he conceived That the Devisor did not intend to pass but one Mannor and no other Herediatments by this Mannor of Fremmington There is a Rule in Law That in the Construction of a Will a thing implyed shall not control a thing expressed But here If by implication the Rent shall pass then the Mannor of Camfield is not passed which was the intent of the Testator to pass and that by express words See 16 Eliz. Dyer 330. Clatches Case No Implication of any Estate in remainder can serve when a special Guift and Limitation is made by the Devisor himself See also 16 Eliz. Dyer 333. Chapman's Case But in our Case here there are not sufficient words to warrant any Implication for neither in truth nor in common reputation was it taken for a Mannor 27 H. 6. 2. Green-Acre may pass by the name of a Mannor although it be but one Acre of Land because it is known by the name of a Mannor See acc 22 H. 6. 39. And see Where before the Statute of Uses A Man had recoverors to his use and he willeth by his Will That his Feoffees sell his Lands they might sell And he said That if a Man seised of a Mannor parcel in Demesne and parcel in Service and he granteth the Demesnes to one and his Heirs and afterwards deviseth his Mannor peradventure the Services shall pass but this Rent hath not any resemblance to a Mannor Gawdy This Rent shall pass by the name aforesaid Favourable Construction is always given in Wills according to the meaning of the Devisor and no part of his Will shall be holden void if by any means it may take effect Then it here appeareth that his intent was That upon these words something should pass to the Devisee concerning the Mannor of Fremmington for otherwise the words Of the Mannor of Fremmington are void and frivolous which shall not be in a Will if any reasonable Construction may be made For it is found expresly by the Iury That neither at the time of the Will made nor at the time of the death of the Testator the Devisor had any thing in the said Mannor of Fremmington but the said Rent of 130 l. per annum And it may well be taken That the Devisor being ignorant what thing a Mannor is thought that this Rent was a Mannor because that she had Rents and Services out of the said Mannor For in Construction of a Will the words shall serve the intent And therefore if a Man Deviseth That his Lands shall be sold for the payment of his Debts his Executors shall sell them for the intent of the Devisor names the sellers sufficiently And See Plowden 20 Eliz. 524. L. after the Statute of 27 H. 8. deviseth that his Executors shall be seised to the use of A. and his Assigns in Fee whereas then there was no Feoffees to use the same was holden a good devise of the Land to A. But the Iustices conceived That the Devisor was ignorant of the operation of the Statute in that case and therefore his ignorance was supplyed See Br. Devises 48. 29 H. 8. A. had Feoffees to his use and afterwards after the Statute of 27 H. 8. and 32 H. 8. he willed That his Feoffees should make an Estate to B. and his Heirs It was holden by Baldwin Shelley and Mountague Iustices That it was a good Devise And see 26 H. 6. Fitz. tit Feoffments Faits 12. A Carue of Land may pass by the name of a Mannor therefore a fortiori a Rent for Rents and Services have more affinity and more resemble a Mannor than a Carue of Land. And it cannot be intended that the meaning of the Testator was to grant the Mannor it self in which he had not any thing especially by his Will for Covin Collusion or indirect dealing cannot be presumed in a Will. Also The Marchioness for 4 years together before her death had the Rent and Services of the said Mannor and she well knew that she her self had not any thing in the said Mannor but the said Rent and Services and therefore it shall be intended that the same was her Mannor of Fremmington A. seised of a Capital Messuage and great Demesnes lying to it Leased the same for years rendring Rent and afterwards devised to another all her Farm in such a place And it was Ruled in that Case That by that Devise the Rent and the Reversion passed See the Case between Wrottesley and Adams Plow 19. 1 Eliz. by Anthony Brown and Dyer Periam Iustice conceived That this Rent might be divided well enough But by Anderson It is but a Rent-Seck Periam It is distrainable of Common right Anderson doubted of it But all the Iustices agreed That the Rent might be divided but there should not be two Tenures The Lord Mountjoy being advised that this Rent did not pass but descended to the Heir being the full third part of the Lands entred into the Residue and made a Lease of the Mannor of Camfield unto the Plaintiff upon which the Ejectione firmae is brought And afterwards the Plaintiff seeing the Opinion of the Court to be against him and for the Devise of the Rent for the reasons aforesaid Discontinued his Suit c. CCXIX. Williams and Drew's Case Mich. 29 Eliz. In the Common Pleas. THe Widow of Williams who was Speaker of the Parliament brought Dower against Williams and Drew upon the Grande Cape Williams made default And now came Drew and surmised to the Court That he is not Tenant of the Land But further he saith That the Husband of the Demandant Leased the said Lands to him for 50 years and that this Action is brought by Covin to make him lose his Term and prayed to be received And the Opinion of the whole Court was That although he was party to the Writ yet he should be received and that by the Statute of Gloucester for he is in equal mischief And the Court was also clear of Opinion That upon the default of Williams the Demandant should not have Iudgment for a moyety for that the Cause of the receipt trenched to the whole And by all the Iustices but Rhodes If Iudgment had been given upon the deault of both i. e. Williams and Drew yet the Term of Drew should stand but Drew should be put out of possession and put to his Action And Anderson conceived That the Resceit upon that Statute did not lie unless that Covin be alledged betwixt the Demandant and the Tenant to make him to lose his Term and that Covin is traversable Which all the other Iustices denyed for the Covin ought to be averred but ought not to be traversed And also they all but Anderson were clear of Opinion That in this Case of Receipt the party shall not plead upon his Receipt as upon the Statute of Westminster but he shall be received
shall plead That he had not bought modo forma For if he hath bought of A.B. or J.S. the same is not material nor traversable Which Case Cook denyed to be Law. And he also conceived That the Information upon the Quo Warranto is not sufficient For by the same the Defendant is charged to hold a Court and it is not shewed what Court For it may be a Court of Pipowders Turn c. See 10 E. 4. 15 16. acc Shute Iustice The Quo Warranto contains two things in it self 1. A Claim And 2. An usurpation and here the Defendant hath answered but to the Vsurpation but saith nothing to the Claim And it hath been holden in this Court heretofore That he ought to answer to both And he said That it hath been holden in a Reading upon the Statute of Quo Warranto which is supposed to be the Reading of Iustice Frowick That a Quo Warranto doth not lie upon such Liberties which do not lie in Claim as Felons goods c. which lieth only in point of Charter CCXXXVI Venable's Case Mich. 29 Eliz. In the Kings Bench. THe Case was 1 Inst 351. a. Hughs Queries 13. A Lease was made to A. and B. for their lives the remainder to Tho. Venables in tail who 3 Eliz. was attainted of Felony 23 Eliz. there was a General Pardon Tho. Venables 24 Eliz. levied a Fine and suffered a Recovery to the use of Harris Serjeant Office is found Harris traversed the Office and thereupon was a Demurrer It was argued by Leake That Traverse did not lie in this Case 4 H. 7. 7 Where the King is entituled by double matter of Record the party shall not be admitted to his Traverse nor to his Monstrans de Droit but is put to his Petition Which see 3 E. 4. 23. in the Case of the Earl of Northumberland Where Tenant of the King is Attainted of Treason and the same is found by Office. See also 11 H. 4. in the Case of the Duke of Norfolk And the same is not helped by the Statute of 2 E. 6. Cap. 8. for the words are Untruly found by Office but here the Office is true By this Attainder Tho. Venables is utterly disabled to do any Act For by Bracton a Person attainted forisfacit Patriam Regnum Haereditatem suam 13 E. 4. One was attainted of Felony And before Office found the King granted over his Lands Also he is not helped by the General Pardon For before the General Pardon he had a special Pardon therefore the General Pardon nihil operatur as to him But by the Iustices the forfeiture doth remain until the General Pardon Harris to the contrary And he put the Case of Sir James Ormond 4 H. 7. 7. Where the King is entituled by matter of Record and the subject confesseth the title of the King and avoids it by as high matter as that is for the King Traverse in that case lieth and if the King be entituled by double matter of Record if the party avoids one of the said Records by another Record he shall be admitted to his Traverse And so here we have the Pardon which is a Record and that shall avoid the Record for the King And here the Pardon hath purged the forfeiture in respect of the Offence And he said That Tenant in tail being attainted of Felony shall not lose his Lands but the profits only for he hath his Interest by the Will of the Donor and it is a Confidence reposed in him and as Walsingham's Case is he cannot grant over his Estate And see in Wroth's Case Annuity granted pro Consilio impendendo cannot be granted over or forfeited for there is a Confidence See Empson's Case Dyer 2. and 29 Ass 60. If the Issue in tail be Outlawed of Felony in the life of his Father and gets his Pardon in the life of his Father after the death of his Father he may enter But by Thorp If the Issue in tail gets his Pardon after the death of his Father then the King shall have the profits of the Lands during the life of the Issue And the Case of Cardinal Pool was debated in the Parliament 27 Eliz. That he being Dean of Exeter was seised of Lands in the right of his Church and was attainted of Treason It was holden he should forfeit the profits of such Lands But admit That by this Attainder the Land be forfeited yet the party hath the Freehold until Office found See Nicholls Case Plow Com. And also the Case of the Dutchy in Plow Com. acc And here the Pardon hath dispensed with the forfeiture A Tenant of the King aliens in Mortmain before Office found the King pardons it it is good The Lord Poynings conveyed all his Lands to Sir Adrian Poynings who was an Alien and after made a Denizen and the King pardoned and released to him all his right in the said Lands without any words of grant and adjudged the same did bind the King And he said he had a good president 14 H. 7. Where a General Pardon before seisure into the hands of the King was allowed good contrary after a seisure without words of Grant. See Br. 29 H. 8. Br. Charter of Pardon 52. If a Man be attainted of Felony and the King pardons him all Felonies executiones eorundem and Outlawries c. and releases all forfeitures of Lands and Tenements and of Goods and Chattels the same will not serve but for life of Lands if no Office be found but it will not serve for the goods without words of restitution and grant for the King is entituled to them by the Outlawry without office But the King is not entituled to Land until Office be found See Ibid. 33 H. 8. 71. The Heir intrudes and before Office found the King pardons now the Heir is discharged as well of the Issues and profits as of the Intrusion it self But a Pardon given after the Office found is available for the Offence but not for the Issues and profits And he cited the Case of Cole in Plowden where a Pardon was granted mean between the stroak and the death See 35 H. 6. 1. 16 E. 4. 1. 8 Eliz. Dyer 249. Brereton's Case 11 Eliz. Dyer 284 285. Egerton Sollicitor contrary This Traverse is not good for he who traverseth hath not made title to himself as he ought upon which the Queen may take Issue for it is in the Election of the Queen to maintain her own title or to traverse the title of the party At the Common Law no Traverse lay but where Livery might be sued but that is helped by the Statute of 34 E. 3. but where the King is entituled by double matter of Record as in our Case he is no Traverse was allowed until 2 E. 6. Cap. 8. And in such Case two things are requisite 1. That the Office be untruly found 2. That the party who is to be admitted to his Traverse have just title or Interest
Case 18 Eliz. Plow Com. 485 486. Where it is holden That upon Attainder of Treason by Act of Parliament the Lands were not in the King without Office in the life of the person attainted upon the words of the Act shall forfeit See Stamford 54 55. acc 3. He conceived That this Interest which came to the King by this Attainder was but a Chattel and then it is released by the Pardon And so he conceived If it be a Freehold For the words of the General Pardon are large and liberal Pardon and Release all manner of Treasons c. And all other things causes c. and here forfeitures are pardoned And also this word Things is a transcendent c. And although it be a general word yet by the direction of the General Pardon it ought to be beneficially expounded and extended as if all things had been especially set down Also the words are Pardon them and their Heirs therefore the same extends to Inheritances for any Offence not excepted for there is the word Heirs And the third branch doth concern only Chattels and that is by the word Grant where the former is by the words Release and Acquit See Br. Charter of Pardon 71. 33 H. 8. Tenant of the King dieth seised the Heir intrudes Office is found in that case by Pardons of all Intrusions the Offence is pardoned but not the Issues and Profits But by the Pardon aforesaid all is pardoned And here in our Case the Office is void For the Statute makes all Precepts Conditions void c. being awarded upon such Forfeitures See also in the second Branch Vexed and inquieted in Body Good Lands c. And see also amongst the Exceptions That persons standing endicted of wilful Murder and forfeiture of Goods Lands Tenements grown by any Offence committed by such person By which he conceived That if that Exception had not been the Land of such a person if he had been attainted upon such Indictment should be forfeited As to the Traverse he conceived That in as much as the Office is true our plea is a Monstrans de Droit although it concludes with a Traverse We vary from the Office in number of persons and in the day of the Feoffment and every Circumstance in the Kings Case is to be traversed and our plea in substance doth confess and avoid the Office. Although the King here be entituled by double matter of Record i. e. the Attainder and the Office yet one of the said Records is discharged by another Record i. e. the Pardon and then there is but one Record remaining scil the Office and therefore our Traverse doth lie And he conceived That at the Common Law there was a Traverse as where it was found by Office That the Lessee of the King had done Waste or cessed for two years and there it is said That the Lessee and Tenant in an Action brought against them may traverse the Office Therefore traverse was at the Common Law where the King was entituled by single matter of Record So upon an Office finding an Alienation without Licence Traverse was by the Common Law. See Traverse in such Case in the Case of William de Herlington 43 Ass 28. See Br. Traverse 54. Petition is by the Common Law and Traverse by the Statute Frowick in his Reading See Stamf. Prerogat 60. That Traverse in the Case of Goods was at the Common Law but Traverse for Lands found by Office by 34 E. 3. Cap. 14. therefore the remedy was by Petition See now Cook 4. Part the Sadler's Case 55 56. Traverse was at the Common Law concerning Freehold and Inheritance but that was in special Cases when by the Office the Land is not in the Kings hands nor the King by that is in possession but only by the Office and entituled to the Action and cannot make seisure without suit there in a Scire facias brought by the King in the nature of such an Action to which he is entituled the party may appear unto the Scire facias and traverse the Office by the Common-Law CCXXXVII Mich. 27 Eliz. In the Kings Bench. A Writ was awarded out of the Court of Admiralty against Sir Tho. Bacon and Sir Tho. Heydon to shew cause wherefore Whereas the Earl of Lincoln late High Admiral of England had granted to them by Patent to be Vice Admirals in the Counties of Norfolk and Suffolk the said Letters Patents ought not to be repealed and annulled And so the said Writ was in the nature of a Scire facias It was moved by Cook That although the Admiral had but an Estate for life yet the Patent did continue in force after his death As the Iustices here of the Common Pleas although they have their places but for life may grant Offices which shall be in force after their death And because the same matter is determinable at the Common Law he prayed a Prohibition For in the Admiralty they would judge according to the Civil Law The Court gave day to the other side to shew cause why the Prohibition should not be awarded CCXXXVIII Mich. 29 Eliz. In the Kings Bench. 1 Len. 302. Ante 150. Post 230. ACcompt was brought by Harris against Baker and damages were given by the Iury It was moved to the Court That damages ought not to be given by way of damages but the damages of the Plaintiff shall be considered of by way of Arrearges But see the Case Hill. 29 Eliz. in C. B. betwixt Collet and Andrews And yet 10 H. 6. 18. in Accompt the Plaintiff Counted to his damage but did not recover damages 2 H. 7. 13. 21 H. 6. 26. The Plaintiff shall not recover damages expresly but the Court shall given Quoddam incrementum to the Arrearages Cook said That it had been adjudged That the Plaintiff should recover Damages in an Accompt ratione Implicationis non Detentionis CCXXXIX Long 's Case Mich. 29 Eliz. In the Kings Bench. NOte It was holden in this Case If a Feoffment in Fee be made of a Mannor to which an Advowson is appendant and Livery is made in the Demesnes but no Attornment that in such case the Advowson shall pass but none of the Services CCXL Barns Case Mich. 29 Eliz. In the Common Pleas. BArns brought an Action of Trespass for taking of his sack of Corn The Defendants justified in the behalf of the Town of Lawson in the County of Cornwell because That King Phil. and Queen Mary granted to them of the said Town a Market to be holden within the said Town and that the Plaintiff came to the said Town with a sack of Corn and the Vendor would not pay Toll for which cause they took the said sack of Corn. And Iudgment was given for the Defendant Vpon which Error was brought and assigned for Error because that the Defendant pleads the Letters Patents with the date of the place year and day without saying Magno sigillo Angliae sigillat For it was holden that
sue in what Court he will in any of the Kings Courts of Record And in this Case the Queen is quodam modo a party For she is to have the moyety And so this cause is not meerly betwixt party and party c. CCLXXXV Willoughby's Case Trin. 30 Eliz. In the Kings Bench. 2 Len. 117. WIlliam Willoughby and two other were Endicted That where the Parson of the Church of D. and all his predecessors have used to have Common in such a place The said Defendants Willoughby and others had enclosed the same and that enclosure was upon their own Land. It was moved That upon this matter they ought not to have been endicted but the party grieved was put to his Action As where a presentment is made of a Disseisin See 27 Ass 20. And it was the Case of one Marden 29 Eliz. upon the stopping of a High-Way upon his own Land and if it were upon other Land it were not material for it is but an Impeachment to take Common which cannot be Vi et armis c. Also this Endictment is Recorded and Certified as found before Iustices of Assize and Gaol-Delivery and they cannot take such presentment And although the Iustices of Assize and Gaol-Delivery were in rei veritate also Iustices of Peace yet the Endictment being recorded and certified to be taken before them in quality of Iustices of Peace shall not help it for the Court shall not respect any Authority but that which appears upon the Record And for these Causes the parties were discharged CCLXXXVI Gates and Hollywell's Case Pasch 30 Eliz. In the Kings Bench. A Man having Issue two Sons devised That his eldest Son with his Executors should take the profits of the Lands until his younger Son should come to the age of 22 years and then the younger Son should have the Lands to him and his Heirs of his body It was the clear Opinion of all the Iustices That the eldest Son should have a Feesimple in the Lands until the younger Son came to the said age of 22 years CCLXXXVII Cony and Beveridge's Case Mich. 30 Eliz. In the Common Pleas. 2 Len. 146. IN Debt upon an Obligation the Case was That the Plaintiff Leased to the Defendant certain Lands in the County of Cambridge rendring rent And afterwards the Defendant became bounden to the Plaintiff in an Obligation for the payment of the said Rent upon which Bond the Plaintiff brought an Action of Debt in the County of Northampton To which the Defendant pleaded payment of the Rent without shewing the place of payment and upon that they were at Issue And it was found by Nisi prius in the County of Northampton for the Plaintiff It was moved in Arrest of Iudgment That the Issue is mis-tryed for here the payment of the Rent being pleaded without shewing the place of payment it shall be intended that the Rent was paid upon the Land which is in the County of Cambridge and there the Issue ought to be tryed See 44 E. 3. 42. And it was the Opinion of Anderson Chief Iustice That no Iudgment should be given for the Plaintiff for the Cause aforesaid But Rhodes and Windam Iustices were of a contrary Opinion For it doth not appear That the Issue is mis-tryed because that no place of payment is pleaded and it may be for any thing that is shewed That the Rent was not paid in the County of Northampton CCLXXXVIII The Blacksmith's Case Mich. 30 Eliz. In the Common Pleas. A Blacksmith of South Mimmes in the County of Middlesex took an Obligation of another Blacksmith of the same Town upon Condition that he should not exercise the Trade or Art of a Blacksmith within the same Town nor within a certain precinct of the same And upon that Obligation the Obligee brought an Action of Debt in the Common Pleas depending which Suit the Obligor complained to the Iustices of Peace of the County against the Obligee upon which the matter being found against him by Examination the Iustices committed the Obligee to Prison and now upon the whole matter Puckering Serjeant prayed a Habeas Corpus for the said Obligee to the Sheriff of Middlesex and hat it And Fleetwood Recorder of London being at the Bar the Court openly admonished him of that matter For by the Law Iustices of Peace have not Conusans of such Offences nor can entermeddle with them for their power is limited by the Commission and the Statutes And the Recorder relyed much upon the Opinion of Hull in 2 H. 5. 5. But it was said by the Court Although that this Court be a high Court to punish such Offences appearing before them of Record yet it doth not follow That the Iustices of Peace may also do so But as to the Obligation it self the Court was clear of Opinion That the same was void and against the Law. CCLXXXIX Russell and Broker's Case Mich. 30 Eliz. In the Common Pleas. 2 Len. 209. IN Trespass for cutting down of 4 Oaks The Defendant pleaded That the place where c. And that he is seised of a Messuage in D. and that he and all those whose Estate he hath c. habere Consueverant rationabile estoverium suum for fuel ad Libitum suum Capiendum in boscis subboscis arboribus ibidem crescentibus and that in Quolibet tempore anni unless in Fawning time The Plaintiff by Replication said That the place where is in the Forrest of D. c. And that the Defendant and all those whose Estate c. habere Consueverunt rationabile estoverium suum de Boscis c. per Liberationem Forestarii aut ejus Deputati prout Boscus pati potuit non ad exigentiam petentis And upon that Replication the Defendant demurred in Law. And it was the clear Opinion of the Court That Iudgment should be given against the Plaintiff For if he would have ousted the Defendant of his Prescription by the Law of the Forrest he ought to have shewed the Law of the Forrest in such Case Lex forestae talis est For the Law of the Forrest is not the Common Law of the Land and we are not bounden to take notice of it but it ought to be pleaded Or else the Plaintiff ought to have traversed the Prescription of the Defendant For here are two Prescriptions one pleaded by the Defendant by way of Bar The other set forth by the Plaintiff in his Replication without any traverse of that which is set forth in the Bar which cannot be good But if the Plaintiff had shewed in his Replication Lex forestae talis est then the Prescription of the Defendant had been answered without any more for none can prescribe against a Statute Exception was taken to the Bar because the Defendant hath justified the cutting down of Oaks without alledging That there was not any Vnderwoods But that Exception was not allowed for he hath his Choice ad libitum suum Another Exception was taken
nothing found of the Non tenure and therefore a Venire facias de novo was awarded c. But it was answered by the Court That this Verdict had determined both the Issues for the Changeableness of the Entry as the Court conceived upon the special matter aforesaid did determine both the Issues CCCII Scot and Scot's Case Pasch 31 Eliz. In the Kings Bench. THE Case of Scot and Scot in a Replevin 1 Cro. 73. 2 Len. 128. 4 Len. 70. the which see Mich. 29 Eliz. Leon. 2 Part 129. was argued again by Egerton Sollicitor General And he said In some Case This word Proviso is not a Condition but only an Explanation of the Sentence precedent If it be in the Negative and makes restraint of the Common Law then it is a Condition As a Lease for years Proviso That he shall not alien or do Waste And if the Proviso be in the Affirmative and by that the party be bound to do a thing which of common Right he is not bound to do it is a Condition A Lease for years or for life Proviso That he shall pay such a sum Lessee for years Proviso That the Lessee shall pay his Rent generally without limitation of any day it is on Condition And he held by way of Argument in the principal Case That Cestuy que use should take adgantage of conditions which are knit to Estates as for payment of Rent but not concerning collateral things And such exposition of the Statute of 32 H. 8. hath been made there before And admit it be a Condition Yet the Lessor cannot re-enter for the Rent was not well demanded For 20 l. Rent is reserved yearly payable at four Feasts and here the Lessor hath demanded 10 l. scil The Rent of two several Quarters whereas only Rent was demandable in point of the Condition Cook conceived That it was a Condition but every Proviso did not make a Condition The Lessor Covenants That the Lessee shall take sufficient Wood Proviso that he shall not take great Timber that Proviso doth not make the Covenant Conditional but only explains the same A Lease without Impeachment of Waste Proviso that the Lessee shall not do voluntary Waste is not any Proviso but a restraint of the Liberty given before and doth but qualifie the Liberty As Littletons Case Grant of a Rent-Charge Proviso that it shall not extend to charge the person of the Grantor that Proviso doth not make the Grant Conditional so that if the Grantee bring a Writ of Annuity against the Grantor the Grant be determined c. A Lease for years Proviso that if the Lessee shall be disposed to Alien that the Lessor shall have the first offer c. The same is not a Condition which see by Fitzherbert and Baldwin 28 H. 8. Dyer 13. A Lease for years upon Condition That if the Lessee will hold over his Term That then he shall pay so much Rent the same is not Condition for it is at the pleasure of the Lessee c. and it is not compulsory A Feoffment in Fee with warranty Proviso that the Feoffee shall not vouch the same doth not make the warranty Conditional but only abridgeth the warranty Sir Richard Pecksall leased certain Lands for years and Covenanted That the Lessee should take at his pleasure the Trees there growing Proviso That he should not take Trees of such a bigness It was holden in that Case to be no Condition So in the Covenant for further assurance Proviso That the Bargainor shall not be compelled to travail for the making of the assurance above ten miles c. But admit that it be a Condition yet the Lessor upon the matter cannot take advantage of it For he hath not demeaned himself in the demand of the Rent as he ought For he hath demanded Rents due to him at several Quarters and that he cannot demand in point of forfeiture for then the Lessor may leave his Rent in the Hands of the Lessee until it amount to a great sum of 200 or 300 l. and then upon a sudden demand of the Rent when the Lessee is not so well furnished nor can be at so short warning to pay the same And it may be likened to the Case in 27 H. 6. A. granteth to B. ten Loads of Hay percipiend annuatim out of his Meadows in C. for 21 years there the Grantee cannot stay and take all his Hay and the Arrears of it in the later year but he ought to take his Hay every year according to his Grant Causa qua supra And although the Lessor here hath demanded more Rent than he ought yet the Law shall construe the demand good for so much of the Rent which by the Law is demandable in point of forfeiture as where a Man is bound to perform the Award of such an one who awards That he and another shall be bound to another party for the payment of c. Although that the same Award be void as to the Stranger yet it is good as to the party himself and he ought to be bound by it Dr. Mollins Case A Lease for years rendring Rent to be paid at two days in the year Proviso That if the said Lessee do not pay the said yearly Rent that then a Re-entry that Rent is not demandable upon pain of forfeiture but the last day of every year only and not every year according to the Reservation of it The words of our Condition are Provided That if the Lessee do grant his Term to his eldest Son that he shall pay but so must Rent the same without doubt is not any Condition yet he shall pay so much Rent doth amount to so much Note In the Argument of this this Case was put A. is bound to make such an assurance to B. of such Land as C. shall devise C. deviseth That A. and his Wife shall make such assurance A. is bounden upon the peril of his Obligation to do it See as to this point of the Proviso 5 Eliz. Dyer 222. The Archbishop of Yorks Case It was adjourned CCCIII. Mich. 31 Eliz. In C. B. THis Case was put to the Court a Copyholder did alledge the Custom of the Mannor to be That the Lord of the Mannor might grant Copies in the remainder only with the assent of the Tenants and not otherwise and that Copies in Remainder otherwise granted should be void It was demanded of the Court If this were a good Custom or not The Iustices did forbear to deliver any Opinion in the Case Walmesley Serjeant That it was a void Custom for that the Law doth not take notice of Copyholders Estate they being but Tenants at Will in the Iudgment of the Common Law and therefore it was not reasonable that their Wills and Pleasures should limit the Lord of the Mannor in granting of Estates by Copy and therefore he said such a Custom was void and he compared it to the Case in 2 H. 4. 27. That a Custom That a
ad Beneficium Ecclesiasticum pertinet Examinatio ad Judicium Ecclesiasticum 40 E. 3. 25. And see the Statute of 18 Eliz. that Pars gravata in the Case of Maintenance is not tyed to a year And this suit is conceived to be in such Quality being a private grievance to the party himself the King not being party but only the party grieved But where the penalty is expresly given to the King and him that shall sue there all the proceedings ought to be in both their names And Manwood Chief Baron said That this Issue shall be tryed by the Country Which see in the Book of Entries 396. CCCXXVII Owen Morgan's Case Mich. 32 33 Eliz. In the Exchequer OWen Morgan Exhibited an Information upon the Statute of Usury for an usurious Mortgage made and charged the Defendant That Cepit ultra 10 l. in Cl. for the forbearance for one year and that was out of the Issues Rents and Profits which he took in Middlesex of Lands in Glamorganshire in Wales Mortgaged to the Defendant Manwood Chief Baron said That one might take the Rents of Lands in Wales in the County of Middlesex but a Man cannot take the Issues and Profits of the Lands but where the Lands are And Leak 's Case was cited Where an Information was brought for cutting down of Wood and converting it into Coals And Leak the Informer laid the cutting to be in the County where the Wood grew but the Conversion of it into Coals in the County of Middlesex And Manwood said in the principal case That the taking of the Issues and Profits ought to have been layed where the Land was And such was the Opinion of the whole Court. CCCXXVIII Curson's Case Mich. 32 33 Eliz. In the Exchequer CUrson acknowledged a Statute to Starkey 4 Len. 10. Ante 239. Alderman of London and afterwards he acknowledged another Statute to one Hampden who assigned the same to Fitton who assigned the same to the Queen Starkey sued forth Execution upon his Statute and thereupon the Land is extended of Curson and he hath a Liberate of it It was agreed by all the Barons That if Starkey had execution upon the Statute before the Queen his Execution should stand against the Queen and the Queen should not put him out And it was further agreed by them That if A. recovers a Debt in the Common Pleas so as he hath title to sue forth Execution by Elegit and the Defendant sells his Lands and afterwards A. assigns his Execution to the Queen That the Queen should not have prerogative against the Feoffee to have execution of the whole Land. And it was also holden by Manwood Chief Baron That if Execution be had upon a puisne Statute and the same is afterwards avoided by more ancient Statute and afterwards the ancient Statute is satisfied That now the puisne Recognisee may re-enter without suing forth any new Execution CCCXXIX Butler and Lightfoot's Case Mich. 32 33 Eliz. In the Exchquer IN this Case It was holden by the Barons 4 Len. 9. That if Tenant for life be of a Copyhold the Remainder over in Fee to another he in the Remainder may surrender his Estate if there be not any particular Custom to the contrary for the Estate of Tenant for life and him in the remainder are but one Estate and the admittance of the particular Tenant is the admittance also of him in the Remainder CCCXXX Knight and Norton's Case Mich. 32 Eliz. In the Common Pleas. IT was holden in this Case That duress of Imprisonment is not intended but where the party is wrongfully imprisoned until he make the Bond and not where a Man is lawfully imprisoned for another cause and for his delivery he makes a Bond for that is not per duritiam imprisonamenti And if in such Case duresse be pleaded the other may say of his own accord sine duritia imprisonamenti without saying absque hoc that it was per duritiam imprisonamenti And so it was also holden in the Kings Bench. See 4 E. 4. 17. 12 E. 4. 7. CCCXXXI Hungate and Hall's Case Trin. 32 Eliz. In the Exchequer Ante 239. 4 Len. 10. THe Case was Curson acknowledged a Statute to Alderman Starkey and afterwards acknowledged another to Hampdem which was assigned to the Queen Afterwards the Lands of Curson were extended for Starkey and a Liberate thereof It was holden by the Court That the same was a good Execution and that the Queen should not avoid it But if the Land had been extended at the suit of the Queen then the Execution of the Queen should hold place although it were a Statute of a puisne date And by Clark Baron If a Recognizance acknowledged by a Subject be assigned to the Queen It hath been a Question If all the Lands of the Conusor shall be extended or but the moyety as it shall be at the suit of the Conusee himself It was holden That all the Lands should be extended CCCXXXII The Lord Gray's Case Trin. 32 Eliz. In the Exchequer THe Lord Gray Tenant of the King of Lands holden in Capite by Licence of the King made a Feoffment of the Lands in Fee and afterwards levied a Fine for further assurance And upon Process the party came into the Court and shewed this matter And the party was advised by the Court to aver That the said Fine was for further assurance And then upon such averment he should be discharged without any Pardon sued forth for the Fine c. CCCXXXIII Sir Walter Waller's Case Trin. 32 Eliz. In the Exchequer IN Sir Walter Waller's Case It was holden in the Court of Exchequer That a Debt of Record as upon a Iudgment c. could not be attached by the Custom of London 1 Len. 29. And so it was holden in the Case of Sir John Perrot in the Common Pleas. 4 Len. 44. And it was said by Cook That such a debt could not be assigned upon the Statute of Bankrupts CCCXXXIV Sir Brian Tucke's Case Mich. 32 Eliz. In the Exchequer IN this Case It was holden by all the Barons clearly Office of Executors 232. Roll. 920. Savile 40. That the Executor of an Executor should not be charged with a Devastavit made by the Executor of the first Testator no not in the Case of the King because it is a personal wrong only CCCXXXV Fines and the Lord Dacre's Case Mich. 32 Eliz. In the Exchequer THe Case was Tenant in tail Post 261. 4 Len. 97. the Remainder of Lands in chief levyed a Fine of them without Licence of the King and if the Tenants of the Lord Dacres should be charged for the Fine was argued For the Case was That the Lord Dacres was Tenant in tail the Remainder in tail to Philip Fines And it was holden by all the Barons That the Tenants Lands should be discharged But it was holden That if the Conusor had any other Lands within England the Fine might be levyed
Demands or Grants Omnia terras tenementa sua But general words qualified with a restraint where the Limitations are effectual As if the King Grants Omnia terras tenementa sua in D. which he hath by the Attainder of J.S. or which were the possessions of such dissolved Monasteries such Grants are good And where the Case is That Queen Mary hath the Lands in possession of the annual value of 19 l. and other Land there in Reversion of the annual value of 6 l. and then she Grants Omnia terras tenementa nostra rendring 19 l. per annum I conceive That upon these words the Land in possession only passeth because that the said general words may be aptly served and satisfied with the Lands in possession if no other Lands pass And I agree That this word Nostra extends as well to the Lands in Reversion as to Lands in possession but most properly to Lands in possession for Land in Reversion cannot dici simpliciter Nostra but quodam modo tanquam terra revertens and not to take the natural profits of it for the Termor hath such properly that he shall have an Action of Trespass Quare clausum fregit But the intent and meaning of the Queen is to be regarded and that is the surest way to have right intelligence of the Grants of the King For here the Queen hath reserved but 19 l. Rent which is the proper and ancient Rent of the Lands in possession and if Lands in Reversion should also pass the Rent of which was 6 l. per annum then upon the whole Grant but 19 l. being reserved the Queen should lose 6 l. per annum of her ancient Rent which should be contrary to the intent and meaning of the Queen and the intent of the Grantor even in the Case of a Subject shall direct the construction of Grants As 9 H. 6. Br. Grants 5 by Babington A Man grants Common in his whole Lands he shall not have Common in his Orchards Gardens or Meadows for such was the meaning of the Grantor a fortiori in the Case of the King. It hath been argued That the former Lease ought not to be recited because that after the first Lease made by King Henry the 8th the Inheritance hath been in a Subject that is the Bishop of Bath and Wells but the same is not so For if the King makes a Lease for years and afterwards Grants the Reversion upon Condition which after is broken and so found by Office by which the Reversion is reduced to the King If now the King will make a new Lease he ought to recite the former Estate notwithstanding the mean grant of the Reversion or else such second Lease is void Another matter hath been Objected wherefore the former Lease ought not to be recited and that is because it is determined by surrender in Law before that the new Lease takes effect Sir the same is not so for the former Lease is in being as the Case betwixt Fulmerston and Steward 1 Mar. Plow Com. 106. upon the Statute of Monasteries 31 H. 8. See the words of the Statute whereof and wherein any Estate or Interest for years at the time of the making of any such Lease had his being or continuance And an Abbot made such a Lease to one who had a term for years of a former Grant although here be a Surrender yet this Case is within the said Statute and the said former Lease shall be said to have his being at the time of the making of the later Lease and the Surrender shall not be said so to preceed the making of the Lease but that the former Lease shall be said in Esse at the time of the making of the later Lease And in our Case it shall not be taken for any Surrender for then the Queen shall lose 6 l. of her ancient Rent and Revenue and always when the Title of the King and of the Subject concur the Title of the King shall be preferred as 43 E. 3. The King Lord Mesne and Tenant The Tenant pays his Rent at the day to the Mesne before Noon and then the same day before Night the Mesne dieth his Heir within age the King shall be paid the Rent again for here the Title of the King and the Subject concur together at one time and in that the King shall be preferred and so he prayed Iudgment for the Defendant And afterwards at another day the Iustices declared their Opinions and by Wray Chief Iustice We all agree That the first Lease ought to be recited and the reason which hath been urged against that point hath reduced us to be of that Opinion scil That the second Lease was made to the first Patentee and the King doth not make the recital but the party ought to inform the King of all former Estates of the said Lands and that he might well do for he is well knowing of them and although that the Reversion after the first Lease made hath been conveyed to a Subject the same is not material here forasmuch as the second Estate is made to him who had the first Estate and might know whether the first Estate were determined or not Also by the re-purchase the King is in Statu quo prius Gawdy Iustice although that the former Term be drowned by the taking of the second Lease yet it was in being at the time of the taking of it as it is holden by Bromley in the Case of Fulmerston and Steward It is determined by the second Lease and yet it was in being at the time of the making of it Fenner Iustice to the same intent Clench Iustice If the Grant of the Queen shall enure to two intents then the Queen should lose 6 l. per annum of her ancient Revenue It was agreed by all the Iustices That the general words in as much as they are restrained to a certainty would pass the thing si caetera essent paria contrary if they had remained in the generalty and afterwards Iudgment was given Quod querens nihil Capiat per Billam CCCXXXVIII Trin. 32 Eliz. In the Common Pleas. 4 Len. 233. A Man 30 Eliz. made a Feoffment in Fee to the use of himself for life and afterwards to the use of his Son and his Heirs The Father and the Feoffees before issue for Mony by Deed granted and enfeoffed J.S. and his Heirs who hath not notice of the first use The Tenant for life hath issue and dieth the issue entreth Glanvil the use limited to the first Son is destroyed for without regress of the Feoffees it cannot rise and it is gone by their Livery See the Case in Plowden 349. and also he vouched the Case of the Earl of Kent where by the Release of the surviving Feoffee 2 Roll. 797. Plow 347. a Sleeping-Vse was destroyed and could not after be revived Harris the use may rise without entries of the Feoffees and he put a difference between an
use created before the Statute and a use created afterwards for in the first Case they ought to enter and if they be disabled by any Act as in the Case between Gascoign and the Earl of Kent it shall never rise but in the later Case the whole authority and confidence is by the Statute taken out of the Feoffee and the contingent use shall rise without aid of the Feoffees by the operation of the Law for there the Land is bound to the Vses and charged with them As upon a Iudgment in a Warrantia Chartae the Land of the Defendant is bounden pro loco tempore and according to the Common experience in Conveyances for payment of the Kings Debts as in the Case between Proctor and Dennis The Debtor of the King makes a Feoffment in Fee unto the use of himself and his Heirs until he makes default of such a payment to the Queen at such a day and upon default to the use of the Queen and her Heirs Cowper There needs no Entry of the Feoffees and he put the difference put before by Harris betwixt a Vse created before and a Vse created after the Statute and now the Feoffees have not any power to revive or to stand seised to such Vses but are only as Instruments to convey the Vses For the Vse is created upon the Livery and is transferred by the Statute if the person to whom the Vse is limited be capable of it at the time of the limitation but if not the Law preserves it until and it cannot be by any means prevented and he cited the Case 30 H. 8. Br. Feoffments to Vses 50 and there is a great difference betwixt a Vse limited before and after the Statute For now after the Statute the Feoffees by reason of their seisin cannot be vouched for they have not such a Seisin whereof they may make a Feoffment and he put the Case between Cheny and Oxenbridge Cheny leased to Oxenbridge for 50 years and afterwards enfeoffed Oxenbridge to the use of Cheny himself and his Wife for their lives with divers remainders over And it was adjudged in the Court of Wards That by the Feoffment the Term is not extinct and he put the Case of the Lord Pagett adjudged in the Kings Bench. A Feoffment was made to the use of the Feoffee for life the Remainder to him whom the Feoffor should name at his death in Fee and the Feoffor and Feoffees for good Consideration levy a Fine to a Stranger and afterwards the Feoffor nameth and dieth The party named by the Feoffor shall have the Land notwithstanding the Fine c. Beamount the contingent use is here utterly destroyed by the Feoffment aforesaid and it appeareth by the preamble of the Statute of 27 H. 8. of Vses That the motives of that Act did not favour Vses but it was their meaning utterly to root them out And if contingent Vses which are not nor can be executed by the Statute should stand in force the mischief should be that no Purchasor should be secure of his Purchase but should be in danger of a new born Vse not known before And he grounded his further Argument upon the reason of Manwood and Dyer Where a Man makes a Feoffment in Fee to the Vse of himself and his Wife which shall be and afterwards he and his Feoffees and those in Remainder make a Feoffment to divers other new Feoffees and to new Vses and afterwards he takes another Wife and dieth The said Iustices were of Opinion That by the said Feoffment the contingent Vses were destroyed For when the Estates which the Feoffees take is taken away which was the root and foundation of the Vses and the branch and fruit of the said Tree it necessarily followeth that they also be taken away and also because the Feoffees by their Livery are barred for to enter for to re-continue the Estate would continue these Vses they also are gone and extinguished Yelverton I conceive that notwithstanding the Feoffment that the Vse shall rise in his due time according to the limitation of it c. CCCXXXIX The Serjeant's Case Mich. 32 Eliz. In the Common Pleas. TEnant in tail and he in the Remainder in Fee joyn in a Grant of a Rent-charge in Fee to the issue of Tenant in tail a year before the Statute of 27 Eliz. of fraudulent Conveyances and afterwards the Tenant in tail and he in the Remainder sell the Land and afterwards a Praecipe is brought against Tenant in tail who voucheth him in the Remainder who voucheth the Common Vouchee and so a Recovery is had and seisin accordingly The issue in tail dieth without issue Tenant in tail dieth the Vncle distraineth for the Rent Glanvil Serjeant argued That this grant of the Rent is altogether the grant of the Tenant in tail and that nothing passed from him in the Remainder and that it doth enure as one entire Grant and not as several Grants As where Tenant for life and he in the Reversion joyn in a Lease it is one entire Lease and the Lease of them both and they shall both joyn in an Action of Waste But admit that here are several Grants yet the Estate out of which the Rent was granted continuing the Rent shall continue also And now the Recoveror comes in the Post and in the affirmation of the Estate of Tenant in tail and the Remainder is utterly defeated and destroyed by the Recovery and the Rent always issueth out of the particular Estate and he cited Littl. 125. If a Rent-Charge be issuing out of Land and the Tenant of the Land leaseth the same for life and afterwards the Rent is granted over now he who hath the Freehold ought to attorn scil the Tenant for life for a Rent-Charge lieth always upon the possession and if Tenant for life granteth a Rent-Charge and afterwards makes a Feoffment in Fee the Rent shall continue until the possession be recontinued c. Harris Serjeant contrary This Grant is the Grant of them both scil of the Tenant as long he hath issue of his Body and afterwards it is the grant of him in the Remainder Where a Man derives his Interest from two the one being a particular Tenant the other a Recoveror or a Remainder in Fee the Donee takes of each of them that which he may lawfully give and no more and the particular Estate being then ended the Donee shall be then accompted in by him in the Reversion c. See 2 E. 4. 1. And he vouched the Case of the Lord Mountjoy The Lord Mountjoy took to Wife a Woman Enheretrix she had issue and so he was intituled to be Tenant by the Curtesie and acknowledged a Statute and afterwards he and his Wife levyed a Fine and died Now the Conusee shall hold the Land discharged of the Statute for after the death of the Husband the Conusee is in by the Wife only and so paramount the charge Also he said That this Grant of
it and shall not be put to a Scire facias but if such a Writ be sued forth and not continued but discontinued by a year and a day he shall be put to a Scire facias for it is the negligence of the Plaintiff of not continuing it which within the year and day he may do without Order of the Court but not after the year by any Order of the Court c. CCCXLVI Evans Godfrey and Arnold's Case Mich. 32 Eliz. In the Kings Bench. THe Case was Evans and Godfrey were bail for one Kemp at the suit of Alice Arnold Kemp was condemned and a Capias ad satisfaciend awarded against the Sureties By which process Godfrey was taken and he suggested to the Plaintiff That Evans the other bail was sufficient to satisfie him but that he himself was not sufficient but utterly unable to do it Vpon which surmise the Plaintiff was content that Godfrey should go at liberty so as he did procure Evans to be arrested who did it accordingly And now Evans being arrested sued an Audita Querela upon that Escape of Godfrey and they were at Issue upon the Escape And afterwards It was espied That the Venire facias was to summon 12 in Actione Transgressionis super Casum whereas it should be in Audita Querela It was said by Kemp Secondary That the Venire facias upon every Original Writ in this Court as this Audita Querela is ought to contain in it the Issue But when the suit is upon a Bill then the words are ad recognoscend in Actione Transgressionis super Casum And afterwards by the Advice of the Court a Iuror was withdrawn by Assent and so the matter was stayed CCCXLVII Cheney's Case Mich. 32 Eliz. In the Exchequer NOte by the Barons in this Case If Rent-Corn be reserved upon a Lease for years Roll. 591. and it is behind for 2 or 3 years That the Lessor may have Debt for the Corn and shall make his Declaration of so much Corn and the same shall be in the Detinet but yet he shall not have Iudgment to have Corn but so much Mony as the Corn was worth every several year being accounted Clark Baron doubted If he should recover the price of the Corn as Corn was at the time of the Contract or according to the price which it was at the time when it was payable or as it was at the time of the Action brought Manwood The Law is clear That the Lessee shall pay according to the price which was at the time of the payment and delivery limited by the Lease Clark A. is bound to deliver to the Obligee 10 Bushells of Wheat and no place is limited where the payment shall be made the Obligor is not bounden to seek the other party wheresoever as in case of paymene of Mony For the importableness of it shall excuse him Which Manwood granted CCCXLVIII Philip Fines and the Lord Dacre's Case Mich. 32 Eliz. In the Exchequer THe Case was Tenant in tail of Lands 4 Len. 97. Ante 241. the Remainder in Chief levied a Fine without the Kings Licence And If the Tenants of the Lord Dacres should be chargeable by the Fine For the Case was that the Lord Dacres was Tenant in tail the Remainder in tail to Philip Fines was the Question It was holden by the Barons That the Tenants should be discharged But it was holden That if the Conusor had any other Land within England the Fine might be levied thereof But the Question was If the Tenants shall be put to plead in discharge of that which would be a great charge or should be discharged without plea because it appeareth by Record that he who aliened was but Tenant in tail in Remainder For there was an Office of it which was pleaded by another in another cause It was said Where such matter appeareth of Record as by Office Livery c. there he need not to plead such matter in discharge because the pleading of the same is to no other purpose but to satisfie the Court by a Record that the matter is so as the party in his discharge hath alledged And therefore In this Case the Barons gave Order That the Process against the Tenants of the Lord Dacres should be discharged CCCXLIX Hill. 32 Eliz. In the Court of Wards THe Case was A. gave Land to B. in tail rendring Rent B. suffered a Common Recovery with voucher unto the use of a stranger and his Heirs It was the Opinion of some That the Rent remained And it was resembled to Littleton's Case 231 232. Lord Mesne and Tenant The Lord purchaseth the Tenancy now the Mesnalty is extinct yet he who was the Mesne shall have the surplusage of the Rent of the Lord now Tenant of the Land as a Rent distrainable of common right And it was said by Heskith late Attorny of the Court of Wards That it was lately the Case of the Lord De la Ware That in such case notwithstanding such Common Recovery the Donor should have the Rent although that his Reversion was gone But Cook was of Opinion That the Rent was gone For the Rent was incident to the Reversion and there is not any question but that the Reversion is gone CCCL Gardiner and the Hundred of Reading's Case Mich. 32 Eliz. In the Common Pleas. ANdrew Gardiner brought an Action upon the Statute of Winton of Hue and Cry against the Inhabitants of the Hundred of Reading in the County of Berks and declared of a Robbery committed by persons unknown on his House It was the clear Opinion of the whole Court That the Action would not lie For that this Offence is not properly a Robbery intended by the said Statute to be pursued but rather a Burglary And Robberies committed in the High-way only are relieved within this Statute And by Anderson Every Man is bounden to guard his House at his peril for his own safety CCCLI Mich. 32 Eliz. In the Common Pleas. IN a Replevin The Defendant made Conusans as Bailiff to Greves and Rockwood and said That one A. was seised and 6 Eliz. enfeoffed certain persons in Fee to the use of his last Will By which he willed That his Feoffees should stand seised of the said Lands until Greves had levied of the profits thereof 100 l. And against this Conusans It was Objected That here is no Devise For A. at the time of the Devise had not any Feoffees But the Exception was disallowed by the Court. And they cited the Case 15 Eliz. Dyer 323. Lingen's Case A. made a Feoffment in Fee to his use and afterwards devised That his Feoffees should be seised to the use of his Daughter that the same was a good Devise of the Land. See 29 H. 8. Br. tit Devise 48. CCCLII. Hambleden and Hambleden's Case Mich. 32 Eliz. In the Common Pleas. 1 Len. 166. 3 Cro. 163. 1 And. 38. NOte The Case of Hambleden and Hambleden For the principal Case see Mich. 31
Eliz. Leon. 166. Lib. 1. was this Term adjudged upon the Devise That the Survivour shall be each others Heir It was holden That all the surviving Brothers are Ioynt-Tenants and although this word Survivour be in the singular number yet in sense upon the whole matter it shall be taken and construed as for the plural number Survivour shall be each others Heir i. e each Survivour i.e. every Survivour i.e. All the Survivours and then in this case The Plaintiff and the Defendant being Ioynt-Tenants cannot maintain an Action of Trespass one against the other CCCLIII Mich. 32 Eliz. In the Common Pleas. BY the Statute of 32 H. 8. cap. 37. The Executors of a Grantee of a Rent-Charge may distrain for the Arrearages of the said Rent in the life of the Testator so long as the Land charged doth continue in the seisin or possession of the Tenant in Demesne who ought immediately to have paid the said Rent or in the seisin of any other person or persons claiming the said Lands only by and from the said Tenant by purchase gift or descent in like manner as the Testator might or ought to have done in his life-time It was now moved If A. grant a Rent-charge to B. the Rent is behind B. dieth A. enfeoffeth C. in Fee who divers years after enfeoffeth D. who divers years after enfeoffeth E. It was holden in this Case by Walmesley Periam and Windham Iustices That E. should be chargeable with the Arrearages to the Executors Anderson Chief Iustice held the contrary But they all agreed That the Lord by Escheat Tenant in Dower or by the Curtesie should not be chargeable for they did not claim by the Party only but also by the Law. CCCLIV. Leverett and Townsend's Case Trin. 32 Eliz. In the Kings Bench. IN an Action upon the Case for disturbing him of hs Common 3 Cro. 198. 2 Len. 184. The Plaintiff declared That he was seised in Fee of a Messuage and certain Lands And that he and all those whose Estate he hath have Common of Pasture in 16 Acres of Lands called D. from the time that the Corn is reaped until it be sowen again And also Common of Pasture in Land called R. omni tempore anni as appendant to the said Messuage and Land and that the Defendant had plowed the said Lands and so disturbed him of his Common It was moved in stay of Iudgment That it appeareth here that the Plaintiff was seised in Fee and so he ought to have an Assise and not an Action upon the Case But the Exception was disallowed by the Court. Vide inde Ante 13. 2 H. 4. 11. 8 Eliz. Dyer 250. 11 R. 2. Tit. Action upon the Case 36. CCCLV. The Chamberlain of London's Case Mich. 33 Eliz. In the Kings Bench. THE Chamberlain of London brought an Action of Debt in the Mayors Court in Guild-hall 5 Co. grounded upon an Act of Common Council See C. 5 Part The matter was removed into the Kings Bench by Corpus cum causa Fleetwood Recorder of London prayed a Procedendo It was Objected That they of London could not make Ordinances to bind the Subjects as an Act of Parliament To which It was said by Fleetwood That the Custom of the City is That the Mayor and Aldermen and four persons chosen out of each Ward by the Communalty may make Ordinances which they call Acts of Common Council and they shall bind every Citizen and Free-man and all their Customs are confirmed by Act of Parliament and by Magna Charta which hath been confirmed 52 times and also by the Statute of 7 R. 2. For that King seised their Liberties and drove them to pay for the Redemption of them 100000 Marks and then the said King confirmed them unto them for ever and therefore this Ordinance being made according to our Custom ought not to be impeached As in Case of matters of the Forrest If one be punished for offending against an Ordinance made for the governing of the Affairs of the Forrest you cannot remove the matter before you So is the Law called Lex Idumaea concerning Rivers and Fishing in which are divers Ordinances That none shall kill Salmons at certain Seasons of the year and so of other Fishes If one be punished by force of such Law he shall not be relieved here for the Law of the Land hath always allowed such particular Customs And see F. B. If two Merchants put their Stocks together and so Traffick together and the one dieth The Survivor shall not have the whole Stock as the Common Law is but the Executor of him that dieth shall have an Accompt against the other and that is per Legem mercatoriam Cook to the same intent This Act of Common Council is good and according to the Law that is of Common Right There are divers Statutes made for the true making of Cloth and to take away the abuses and deceit in the making of it and this Act of Common Council is for the well executing of the said Statutes and I conceive there is a difference in making of Laws by a Corporation A Corporation may make an Act for the better executing of any Law established at the Common Law but new Laws they cannot make As those of a Town who have used to have Common in certain Lands they cannot make a By-Law That such a one in such a Town shall not have Common there but that none shall use his Common but at such a time such a By-Law made is good See 15 H. 7. 21 H. 7. 40. See 8 E. 2. tit Assise 413. A Town had Common of Turbary in a Marsh and divers of the Inhabitants of the Town had made Trenches in the said Marsh and some had not a full Foot of Land in the Town and such persons by their Trenches which they had made there used to carry Turffs out of the said Marsh by Boats and sell them unto the value of 20 Marks per annum to their great private profit and to the great grievance of the others For which cause It was provided by common assent of the Freeholders of the Lord of the said Town That all the Trenches in the said Marsh should be stopped so as from thenceforth no Turffs be carried in Boats by the Trenches And there it was holden That if the greater part of the Commoners assent the same shall bind the others who have not assented for ubi major pars ibi totum And then if such Towns may make Laws a fortiori The City of London Secondly This Law is good by Custom for they have used to make such Acts and Ordinances time out of mind c. and these Customs are confirmed by Act of Parliament and also they may appoint a penalty for to what purpose otherwise should they make an Act Oderunt peccare mali formidine poenae Also this Action is maintainable for an Amercement in a Court Baron an Action of Debt lieth Gawdy Iustice 44 E. 3. 19.
Rent 11 H. 7. 13. 21 H. 6. 24. 14 H. 8. 35. So where the Successor accepts of a Rent upon a Lease made by the Predecessor 37 H. 6. 4. 8 H. 5. 10. 4 E. 4. 14. The same Law in Exchanges and Partitions If the Wife accepteth of Dower of the Land which her Husband hath taken in Exchange she shall be barred of that Land which her Husband gave in Exchange 6 E. 3. 50. 15 E. 3. tit Bar. 125. 12 H. 4. 12. c. And in all these Cases where there is an Agreement and therein an Agreement implyed scil An Agreement to the Lease and a Disagreement to have the Possession c. And so Agreement to the Land received in Exchange and Disagreement to the Land given in Exchange and all that by word and act in pais And so here in these Cases Estates are affirmed and entred and benefit of the possession waived and refused So it is also of a Right and Title of Action 21 H. 6. 25. The Lord entituled to have a Writ of Right upon Disclaimer accepts a Rent of the Tenant Now he is barred of his Action 13 Ass 3. The Disseisee accepts homage of the Disseisor it is a good bar in an Assise 21 Ass 6. Pendant a Cessavit the Tenant aliened the Lord accepted the Services of the Alienee his Action is gone 11 E. 3. tit Dower 63. A Woman entituled to Dower accepteth Homage of the Ter-Tenant the same is a Bar of her Dower And as it hath been said of Entries and Actions of which a Man may refuse the benefit by word and Acceptance in pais So is the Law also in Cases of Estates vested if the party doth not Enter Husband and Wife Tenants in special tail the Husband levyeth a Fine to his own use and afterwards Deviseth the Land to his Wife for life the Remainder over rendring Rent the Husband dieth The Wife Enters and pays the Rent now she hath waived her Remitter 18 Eliz. Dyer 351. 10 E. 4. 12. The Tenant enfeoffed the Lord and a stranger and made Livery to the stranger although the Freehold vested in them both yet if the Lord disagreeth to the Feoffment in futuro he cannot enter and occupy the Land and he may distrain for the services c. If a Disseisin be made to the use of the Husband and Wife and the Husband agreeth to it the Freehold vests in the Husband and Wife but the Wife is not a Disseisor and after the death of the Husband she may disagree unto the Estate by word 12 E. 4. 7. And also an Agreement shall make her a Dissessisor See to the same intent 7 E. 4. 7. and Litt. 129. Although that in such and the like Cases the Estate vests in some manner yet it shall never vest to the prejudice of the party without an express and actual agreement And that disagreement to an Estate in such manner vested may be in pais and by word seems by a Clause in the Statute of 27 H. 8. cap. 1. Where a Ioynture is made after Marriage there the Wife after the death of her Husband may at her pleasure refuse her Ioynture and have and demand and take her Dower her Writ of Dower or otherwise scil by word and Acceptance in pais And if in a Writ of Dower the Tenant will bar the Demandant by Ioynture made during the Coverture he ought to say Quod intrando agreeavit See Litt. in Dower ad Ostium Ecclesiae If the Wife entreth and agreeth the same is a good Bar in Dower Littl. 8. Now in the principal Case When the Wife agreeth to the Devise of Thoby and the same is executed by entry now the same is a full Disagreement to Hinton It was afterwards Objected That although it be clear That the Wife may waive her Ioynture in Hinton by word and act in pais without matter of Record Yet some conceived That this manner of Devise of Thoby is void by the Statute of 32 34 H. 8. The Statute enables to Devise two parts or so much as amounts to two parts in value at the time of the death of the Devisor for then the Will takes effect which cannot be here in this Case for at the time of his death the Ioynture of Hinton was in force and so continued until the disagreement afterwards Also the words of the Statute are Having a sole Estate in Fee-simple but here the Devisor had but a Reversion in Fee expectant upon an Estate tail c. As to the first Point it was answered That the Disagreement doth relate to the death of the Husband and is now as if no Ioynture had been made ab initio And here the Heir shall have Hinton by descent and he shall be Tenant to every Praecipe and if it be brought against him the same day that the Husband dieth the Writ shall be good by the Disagreement after and the Heir shall have his age c. And if the Father had been a Disseisor and had Conveyed the Land ut supra now by this argeement of the Wife the Heir shall be accounted in by descent and thereby the Entry of the Disseisee taken away And if the Heir in such case taketh a Wife and dieth by this disagreement after the Wife shall have Dower of Hinton and hath such a possession quod faciet sororem esse haeredem And if that the same day that the Husband dieth the Heir levyeth a Fine or acknowledge a Statute or maketh by Indenture enrolled a Bargain and Sale of it by the said agreement Hinton shall be subject to such Acts of the Heir All which Cases prove That the Devisor upon this matter at the time of his death had a sole Estate in Feesimple in the Mannor of Hinton and that the third part in value descended to the Heir and so the Devise of Thoby good It hath been Objected That here is not an immediate descent of which the Statute of 34 H. 8. speaks And here the Mannor of Hinton doth not descend immediatly for there was a mean time between the Death and the Disagreement and so the Will void for Thoby To that it was answered That this word immediatè sumitur dupliciter re tempore and shall be taken here immediatè re statu scil That a Reversion or a Remainder dependant upon a particular Estate in possession which is mean shall not be allowed for the third part descended For a Descent which takes away an Entry ought to be immediate for a mediate descent doth not take away an Entry Litt. 92. as the descent of a Reversion or Remainder And if this word Immediatè had not been in the Statute Then the Statute might have been construed That it should be sufficient to leave the third part to descend in Reversion or Remainder but this word Immediatè makes it clear And therefore the third part which descends ought to descend immediatè in re Statu Yet a Reversion upon a Lease for
returned the Court cannot mitigate the damages p. 150 A second Writ of enquiry of damages where not grantable p. 177 The Plaintiff in Replevin is Non-suit the Court may assess damages without a Writ of Enquiry p. 213 Debt Lachess in pleading it where turn to his prejudice p. 63 Against the Heir a general judgment shall be given in it against him by reason of his false Plea p. 70 Lyeth not by an Inn-keeper for Dyet and Lodging in the Inn where there is not a price agreed for it certain p. 161 Where must be in the Debet where in the Detinet and of what p. 206 260 Declaration In Trespass against the Defendant Simul cum J.S. Out-lawed ad Sectam Querentis not good p. 202 Where void for the incertainty of the thing demanded by it p. 228 Deeds Of Assignment made to the King out of Term upon a day in Term which is not dies juridicus if good p. 146 Demurrer Difference between drawing up of a Demurrer upon a Plea and upon a Challenge p. 222 Deprivation Where pleadable specially where generally p. 199 Devastavit Executor of an Enfant not charged with a Devastavit made by the Executor of the first Testator p. 241 Devises Construction of them p. 25 181 Words equally divided in it amount to a Tenancy in Common p. 19 Of Rent of Lands towards education of the Son how to be expounded p. 65 Made good by Averment p. 79 Where void by the Statute of 32 H. 8. p. 105 That his Sons in Law shall sell his Lands how to be construed p. 106 Of a possibility where not good nor shall go to Executors p. 195 Of a Messuage cum pertinentiis the Curtilage and Garden passeth p. 214 Distress Upon the Glebe-Lands for Tenths and First-Fruits and where the Lessee of the Cattel shall be distrained for the same p. 259 E. EJectione Firmae De uno Cubiculo good p. 210 Election Where not transferrable over p. 211 Where the Party hath election to take by Grant or Confirmation p. 127 Entry Of a Stranger upon the Farmer of the Kings Lessee for years he hath gained the Term p. 206 Error Matter not within the Record not to be assigned for Error p. 96 If it lieth to reverse a Judgment given for the King without a Petition first sued p. 155 Lieth to reverse a Judgmene in Covenant because all the Covenanters joyned not in the Action though the Covenant was in quolibet qualibet p. 161 Where lieth not in C. B. upon a recovery had before Justices of Assise p. 159 Eviction Where a Decree in Chancery shall not be said a lawful Eviction by which a Condition shall be broken p. 71 Evidence In a Writ of Right the Tenant shall begin to give Evidence because he is in the affirmative p. 162 Evidence given where shall conclude the Party but not the Jurors ad dicendam veritatem p. 209 Executors Where their Distress for the Arrearages of a Rent Charge is good by the Statute of 32 H. 8. of Rents p. 263 Where they might satisfie Debts due upon Judgments before Debts due upon Statutes or otherwise p. 271 Executions Sued forth upon a Statute to A. shall be served before a private Statute to B. though the Statute to B. be assigned to the King p. 239 240 By Capias ad Satisfaciendum sued out within the year though not prosecuted for two or three years after together yet the Party may proceed upon it without a Scire Facias p. 259 Debt is recovered by an Administrator durante minore aetate and Execution had and when the Executor comes of age how the Party shall be discharged p. 278 F. FEoffments Livery and Seisin made by Attorny where good to pass the Lands where not p. 37 Of a Mannor An Advowson Appendant shall pass but not the Services if there be no Attornment p. 193 To divers Persons to the use of his Will and afterwards wills the Feoffees shall stand seised till they have levied 100 l. good although in Feoffees at the time of the Devise p. 262 Fines levied Upon a Release not enure to an use p. 36 Where shall make a discontinuance where not p. 74 Where a Bar where not p. 74 Remainder is limited in tail to J. S. and the Heirs of his Body to begin after the death of the Tenant for life If a Fine be levied by him with Proclamation in the life of the Tenant for life shall bar the Issue p. 211 Where a Bar to a Woman in Dower because she pursued not her Claim within five years p. 221 Forfeiture What shall be a forfeiture within the Statute of 11 H. 7. Lessee for years in debt for rent claimed fee by bargain and sale of his Lessor which was traversed by the Lessor yet a forfeiture p. 169 Forprise Where needful to be mentioned where not p. 93 G. GRants of the King p. 10 Void because the King is deceived in them p. 5 119 Not to enure to a double intent p. 75 By the King of Bona Catalla felonum utlagatorum yet the King shall have the Goods of Felo de se p. 113 Where the Church is void by the grant of the King of the Mannor with the Advowson appendant the Advowson shall not pass p. 196 Of Fines pro licentia concordandi doth not extend to Post-Fines p. 234 How to be construed p. 242 to 253 Grants of common persons Where shall enure by way of confirmation Of all Goods and Chattels passeth a Lease for years Restrained and not to extend to things in future p. 29 Of the Office of Register by a Bishop where good where not p. 30 Of a Rent-charge out of his Lands after J. S. dies without issue of his body J.S. dies having issue which issue dies without issue if a good Grant p. 103 Where the mistaking and misrecital in them shall not make void their Grants p. 136 H. HAbeas Corpus Where granted for one committed to the Marshalsey by the Chamberlain of the Houshold one of the Privy Council p. 194 Heir Where he shall be adjudged in by descent notwithstanding a Devise to him p. 118 Of a Copyholder within age not bound to come to any Court during his Non-age to pray admittance or render a Fine p. 221 I. INdictments Upon the Statute of 8 H. 6. Quare Intravit in unum Tenementum not good for the incertainty but if a Tenementum with divers Acres good for the Acres p. 102 Certified and found to be taken before Justices of Assise and Goal-delivery where not good p. 216 Upon the Statute of 5 El. of Perjury question'd because it wanted the word voluntary p. 230 Against three persons for extortion that they colore officiorum suorum had malitiously extorted excessive Fees good though their offences were several p. 268 Informations Upon the Statute of 5 Eliz. cap. for cutting down of Trees being a penal Law how to be expounded p. 104 Of intrusion upon the Possession of the King
where shall be good where not p. 147 Of intrusion where there is no Record to prove it if the error lieth upon it p. 147 Issues joyned A not joyning in it is helped by the Statute of Jeofails not a mis-joyning in it p. 66 Upon a Plea which is tryed in a foreign County and found for the Plaintiff in what Court the Judgment shall be p. 137 Jure Patronatus Where the awarding of it is necessary where not p. 98 Jurors Where upon pain of Attaint they are to take notice of a transient thing done in another County p. 77 K. KING Not bound to take notice of a Condition made by a common person p. 126 Cannot take an interest in Land without matter of Record p. 155 L. LAchess In pleading where it shall turn to the prejudice of the Parties p. 63 Leases For certain years habendum to his Executors if good and what interest passeth and to whom it passeth p. 32 Power to make Leases not to extend to Leases to be made in reversion p. 132 Where Leases are void by the Statute of 31 H. 8. of Monasteries p. 164 Made by Dean and Chapter where void by the misrecital of their name of Corporation p. 220 Livery Of Lands in Ward not to be sued by parcels p. 25 M. MAintenance Where a Grant made shall be said to be for maintenance within the Statute of 32 H. 8. p. 79 Misnosmer Where shall not prejudice a Devise p. 19 N. NOnsuit If after a Demurrer p. 28 O. OBligation By what words good by what not p. 19 Where the word Quemlibet in an Obligation shall make it joynt and not several p. 206 Taken by one Blacksmith of another Blacksmith that he shall not exercise his Trade in such a Town void p. 207 To be good although not made after the usual form p. 223 May be assigned to the King without Deed enrolled p. 234 Office Trove Personal things are in the King without Office found p. 145 Where an Estate shall be setled in the King without Office found where not p. 186 187 188 Outlawry Where a Man is to annul an Outlawry his person shall not be disabled by another Outlawry p. 232 P. PArtition The Writ was Quare teneant Quatuor mille acras where it ought to be 4 Mille acrarum yet good p. 94 Where it is not necessary to shew and settle forth the Estate particularly in the Writ p. 231 Petition Where an Entry is not lawful upon the King without suing a Petition p. 15 Plenarty Returned by the Bishop where not good p. 138 Pleadings and Pleas Where not good for incertainty p. 8 A Conveyance cannot be pleaded unless it be sealed p. 94 Of Non Damnificatus generally where good p. 118 In a Writ of Right upon a Custom to hold a Court of the Plea must be shewed before whom the Plea is to be holden by the Customs p. 148 Of Letters Patents and not saying Sigillo Angliae sigillat not good p. 193 Of the general Issue in Wast viz. Null wast fait where dangerous p. 203 Of Outlawry in the Plaintiff after Imparlance in Trover and Conversion good p. 215 Praemunire Where the not prosecuting of it by the Attorny-General shall take away the suit of the Informer p. 139 Prescription Of every Inhabitant to have Common if good p. 202 Of what good and where and of what not p. 202 To have Estovers at liberty in cutting down Wood in a Forest unless in Fawning-time where good p. 218 Priviledge Of the Exchequer not granted to him who pays First-fruits and Tenths p. 258 Possibility Not allowed to the Kings servants in the Exchequer who is sued in B.R. p. 22 Not grantable or demiseable p. 157 Prohibition Not grantable upon a suggestion that Tythe had been paid to the Vicar c. and time out c. p. 203 Proviso Where a Condition where a Covenant where a Limitation p. 225 Q. QVo Warranto Of Liberty Plea in it what good what not p. 73 184 R. REcital The not recital of the names of the Occupiers of a Lease of Lands do not avoid the Demise thereof p. 235 Records A Deed acknowledged to the King and delivered to the Barons of the Exchequer is a Record though not mentioned p. 146 Of a Fine remaining with the Custos Brevium amended and made according to the Record made and remaining with the Chyrographers p. 183 Recusants Where Lands conveyed by a Recusant shall be subject to the Statute of 23 Eliz. concerning Recusants and the penalties thereof p. 148 Release To a Tenant at sufferance where not good p. 152 By the Feoffees of Cestuy que use to his Lessee for years how it shall enure p. 196 Receit By a Termor for years to save his Term Remitter p. 2 10 93 Rents Where upon a Fine levied of the Land the Rent passeth without Attornment p. 103 Payment of it upon an extent of it and of the reversion saves the danger of a Condition supposed to be broken p. 113 Where apportioned where not p. 125 126 Granted by Fine varyeth from the Indenture yet shall pass p. 136 Suspended yet grantable p. 154 Where it passeth by the name of a Mannor p 168 Reserved to be paid at two Feasts and not said by what portions the Lessee hath the liberty to pay it in what portions he pleaseth p 235 Repleader After Issue joyned where granted p. 90 Request Licet saepius requisitus good and where it must be special p. 73 206 S. SAle By an Enfant Executor of goods where binds him p. 144 Scire Facias Where it lyeth upon an Extent supposed to be satisfied p. 155 Where upon an Alienation of an Advowson without Licence by matter of Record not by matter of Fact p. 175 Statute Merchant and Staple Acknowledged when void by the death of the party p. 157 Surrender Of a Copyhold to uses p. 4 Cannot be of a Lease for years to begin at a day to come p. 95 Tenant for life remainder in Fee of a Copyhold he in the remainder may surrender in the life of the Tenant for life if there be no Custom to the contrary p. 259 T. TAil p. 87 Tender Of Rent how and where to be made p. 4 Tenancy In Common where must be pretended and not given in evidence p. 94 Traverse Where good where not p. 97 Trespass Quare clausum fregit not maintainable by him that hath but the Ear-grass after the first mowing p. 213 Tryal If Tythes lie in such a Parish or in such a Parish tryable at the Common Law p. 128 V. VAlue Of Lands what value shall be intended p. 114 Venire facias Where the place must be mentioned in it p. 171 172 Where from the place where from the Mannor p. 193 Upon every Original must contain the issue in it p. 269 Verdict Not good because too general p. 64 Not Good because it doth not extend to all the points of the Declaration p. 95 Given and found after a Supersedeas
awarded not good p. 100 Two Matters are in Issue the Jury find the one and says nothing to the other if a good Verdict p. 149 Where eating and drinking of the Jurors at their own charges doth not make the Verdict void otherwise if at the charges of any of the parties p. 267 Unity Of possession where shall extinct a Common p. 127 Usurpation Where puts the King out of possession where not p. 17 W. WAger of Law Where cannot be upon an Agreement that one Creditor be acquitted against the other for Debt p. 212 258 Warrants Of Attorny to acknowledge a Deed not good p. 84 Warranty Tenant in tail of an Advowson in gross grants the same in Fee a collateral Ancestor releaseth with Warranty a bar to the Issue p. 212 Wasts p. 7 60 What a sufficient Plea in it what not p. 9 Wills General words in a Will where not enlarge special words before in it p. 18 Words in a Will or Testament conditional where construed not to give tail by Implication Upon a Devise for three where the words of the Will shall be taken distributively and not jointly p. 117 Not to be taken by Implication p. 131 In a Will a thing implyed shall not control a thing expressed p. 167 Withernam Upon return of a Withernam if the Plaintiff tendereth the Damages he shall have a special Writ to restore his Chattel p. 236 Writs In a recovery upon a Writ in the Court of a Mannor the party who recovered in it cannot be put in possession with the Posse Comitatus p. 99 In the nature of a Scire Facias out of the Court of Admiralty to repeal Letters Patents of an Office is good p. 192 FINIS An Exact TABLE to the Three Parts of Reports of Mr. William Leonard And a Correction of divers Mistakes in Printing of Cases and other Matters in all the Three BOOKS A Denotes the first B the second and C the third Book A Abatement of Writs IF one of three Executors die pend brevi the Writ abates A. 44. Administrator sued as Executor may abate the Writ if the Administrat was committed before Action brought A. 69. A Feme sole Plaintiff takes Baron the Writ is not abated but abateable A. 168 169. If matter of Abatement appear in any part of the Record the Court after Judgment will reverse the Judgment A. 255. Action does not abate if the Defendant die after the first Judgment in Trespass and before the Return of the Writ of Enquiry A. 263. Death after Issue joyned no cause of Abatement in the Civil-Law A. 278. The Writ shall abate if it appear the Plaintiff cannot recover the thing in demand A. 333 334. In what Real Actions two Tenants may plead several Tenancy B. 8. It an Action shall abate after the Verdict if it appear to be brought before time A. 186 187. B. 20. Writ shall abate if the Feme be put before the Baron B. 59. Where upon pleading Joyntenancy or Villenage the Writ shall abate without any answer to the Pleas B. 161 162. Where a Writ shall abate Ex Officio Curiae B. 162. A Writ of Deceit not abated by the death of one Defendant C. 3. Abeyance In what Cases a Use may be in Abeyance B. 18. C. 21 22 23. The like of a Remainder B. 73. Acceptance Where the Issue of him in Remainder accepts the Rent of Tenant for life it is a good affirmance of his Estate A. 243. What Acceptance of Rent by Lessor shall bar him of his Re-entry for non-payment A. 262. The Acceptance of Rent by the Feme confirms the Lease of the Husband C. 271. The like by Issue in Tail of a Lease not warranted by the Statute C. 271. The like by an Infant at his full Age C. 271. The like of a Lease by a Predecessor and the Successor accepts the Rent C. 271. By the Wives Acceptance of Dower out of Lands exchanged she agrees to the Exchange C. 271. One disclaims and after the Lord accepts the Rent of the Tenant the Lord is barred of his right Sur Disclaimer C. 272. Pending a Cessavit Tenant aliened the Lord accepts Services from the Alienee he is barred C. 272. Accord and Concord No Bar if not executed A. 19. C. 212. Account Duresse a good Bar to it A. 13. Capias ad Comp. after a former executed A. 87. The power of Auditors A. 219. Of what things an Auditor by Deed may make Allowance A. 219. The power of an Auditor deputed by a private person A. 219. The difference of an Auditor deputed by Parol and by Deed A. 219. After Account and the Defendant found in Arrear and then the Defendant dies yet the Plaintiff shall recover A. 263. Lies not for the profits of Lands if the Defendant were in by Title A. 226. C. 24. If the Jury ought to assess Damages A. 302. B. 118 196. C. 150 192 230. What may be pleaded in Ear or must be pleaded in discharge before the Auditors B. 30 31 195. If a Factor account to one of many joynt Traders it is sufficient B. 75 76. If the Defendant plead that the Plaintiff gave him the Goods he must traverse that he was Bailiff to render account B. 195. If it lies against a meer Trespasser or wrongdoer C. 24. Where Account or an Action upon the Case lies against one who receives Mony to buy Cattle and does not buy them C. 38. In some Cases it lies against an Apprentice C. 62. Action upon the Case for Tort See Nusance Trover Slander For Erecting a Fould-course in disturbance of the Lord who had one by Prescription A. 11. By a Father against the Master of his Son for beating and laming his Son whereby he was disparaged in Marriage A. 50. Where it lies for malitiously indicting of Felony A. 107 108. Lies and not Trespass for pulling down Hurdles in a Market A. 108 109. Lies against an Under-Sheriff who took Mony to return but did not return a Summons A. 146. Against a Justice of Peace for Arresting one for Felony without accusation A. 187. Against a Mayor for not taking Bail to an Action A. 189. By Tenant in ancient Demesne for taking Goods for Toll A. 231 232. B. 190. By a Sheriff against a Prisoner who escaped out of Execution satisfaction being acknowledged A. 237. If it lies for retaining anothers hired Servant A. 240. Lies for a Tenant in Fee for a Nusance though he may have an Assise A. 247 273. Con. C. 13. If it lies for diverting a Mill-stream without Prescription A. 273. If it lies against a Justice of Peace for refusing to examine one who is Robbed A. 323 324. For conspiring with a Factor to cheat the Plaintiff who was a Joynt Trader with the Defendants in Account B. 75 76. For laying too much weight on a Floor which fell into the Plaintiffs Wares B. 93. An over-loading a borrowed Horse B. 104. By a Commoner for over-charging the Common with Conies B. 203. Against
Appendant or in gross A. 323. A Curtilage and Garden are Appurtenant to a House and pass by or without the word Appurtenant C. 214. Apportionment If the Lessor grant part of the Land the Grantee shall have no Rent A. 252. C. 1. Upon devise of Lands rendring Rent part being Capite Lands A. 310. If a Rent reserved upon a Lease of a Warren may be apportioned C. 1. None of a relief because intire C. 13. If a condition of Re-entry upon several Reddend may be apportioned C. 124 to 127. Rent may be apportioned in the Kings Case which cannot in the Case of a common person C. 124 to 127. Arbitrement Debt lieth upon it although void until it so appear A. 73 170. In such Action the Plaintiff needs shew no more than makes for him A. 73. To find sufficient Sureties to pay c. void A. 140. Without Deed cannot dispose of a Free-hold A. 228. To do one thing or another one being void yet the award is good A. 304 305. C. 62. To pay Mony to a Stranger is good A. 316. C. 62. That one Party shall have a Term for years gives the interest of the Term contra where it is that the one shall permit the other c. B. 104. Award to become bound it is a good performance if the Bond be delivered to a Stranger and after tendred to the Plaintiff B. 111 181. To do an Act to a Stranger who will not accept thereof the Bond is not forfeit C. 62. To do an Act to a Stranger not void C. 62. 212. Award that the Defendant and a Stranger become bound is good as to the Defendant though void in part C. 226. Ayd Copy-holder shall have Ayd of his Lord in Trespass A. 4. Grantee of Tenant in tail after possibility shall have Ayd yet the Grantor should not A. 291. Tenant at Will shall have it but not Tenant at Sufferance B. 47. Verdict upon an Issue upon a Counter-plea of Ayd is peremptory to the Defendant B. 52. Alien If the Kings Confirmation of a Feoffment to an Alien do avail A. 47. If the Grant of an Office to him by the King be a denization C. 243. Assent and Consent If the Conuzee of a Statute c. taken by Capias be discharged by Assent of the Conusee his Lands are also discharged A. 230 231. Assets Mony received by Executors for Lands devised to be sold to pay Portions if it be Assets A. 87 224 225. B. 119. What other things shall be Assets A. 225. B. 7. Lease for life and after his death to his Executors for 10 years if this Term be Assets C. 21 22. If Mony received by the Heir for Redemption of a Mortgage be Assets to pay Debts C. 32. Executors by Award receive 50 l. and release a Bond of 100 l. the whole 100 l. is Assets C. 53. Assignee If Assignee of parcel may have covenant against Lessee for years A. 251 252. Who is a sufficient Assignee A. 252. Executors or Administrators A. 316. Assize Of a Rent rendred in Fee by Fine A. 254. The manner of adjorning and giving Judgment where the Disseisor pleads Foreign Pleas B. 41. Of fresh-force in London C. 169 170. Attachment Of Goods in a Carriers hands 189. A Debt by Judgment Stat. Recogn c. cannot be attached A. 29 30. No Mony taken in Execution A. 264. What is a good Plea for him in whose hands Mony is attached A. 321. If the Plaintiff shall recover costs against him in whose hands c. A. 321. Mony for which an Action is depending cannot be attached C. 210. One cannot attach Mony for a Debt before the Debt be due C. 236. Corn is not attachable C. 236. A Debt upon Record cannot be attached C. 240. Attainder A person attainted cannot be charged with Actions A. 326 327. If a person attainted may be put to answer in personal Actions A. 330. What is forfeited to the King by Attainder of Tenant for life or in Tail in Remainder B. 122 123 to 126. Differences of Attainder and Conviction B. 161. If one attainted of Robbery shall answer in criminal Cases C. 220. Attaint What Heir shall have it A. 261. Upon the Statute of 23. H. 8. 3. A. 279. If it lie where the Plaintiff might avoid the Judgment by Error A. 278. Attornment To whom and how it must be made A. 58. Quoad part is good for all A. 129 130 234. Upon a Lease for years in Reversion A. 171. C. 17. An Abator may Attorn A. 234. The definition thereof A. 234. By the first Lessee binds the Tenant in remainder for years or life A. 265. Good by the Tenants of the Land to him in remainder after the death of Tenant for life A. 265 To the surviving Grantee of a Reversion good A. 265. To the Grantee of the Reversion of a Mannor by Lessee for year of the Mannor passes the Mannor and binds the Tenants A. 265. After condition broken is good to vest the Estate by the breach of the Condition A 265. The Relation of an Attornment A. 265. B 222. Who is compellable by a Quid Juris clamat to attorn A. 290 291 B. 40. C. 241 242. No Attornment is necessary upon selling a Reversion of Copyhold A. 297. C. 197. In what cases necessary A. 318. C. 103. Lease of Demesnes by Grant of the Mannor the Reversion passeth not without Attorment B. 221 222. An Advowson appendant to a Mannor shall vest without Attornment of the Tenants B. 222. What Words or Consent amount to an Attornment C. 17. Lessor levies a Fine to the use of himself and his Heirs Lessee must Attorn C. 103 104. If it be necessary where the Grantee is in by Statute of Uses C. 104. It is necessary to pass Services of a Mannor C. 193. Tenant of the Land must attorn upon granting over a Rent-charge C. 252. Reversion of a Term a Lease of part of the Term being first made cannot pass the Term and Rent reserved upon the first Lease without Attornment but a Term without Rent reserved he may C. 279. Lessor grants the Reversion to Lessee and A. B. no other Attornment necessary C. 279. Attorny J.S. Praesens hic in Cur. in propria persona sua per A.B. Attorn suum how construed A. 9. Lessee for years cannot surrender by Attorny A. 36. How to make a Deed by Attorny Ibid. B. 192 200. May essoign for a Copyholder but not do services A. 104. To three conjunctim divisim to deliver Seisin A. 192 193. How Attorny must make Livery where the Lands lie in several Counties A. 306 307. In an Indenture C. 16. Audita Querela Upon a Statute Merchant the Suit shall be in the Kings Bench But upon Statute-staple in the Chancery A. 140 141 228. contr 303 304. Process therein is either Venire facias or Scire facias A. 140 141. Upon a Statute Staple upon payment of the Mony in the Court of C. B. quod nota the party is bailed A.
Executor shall sell who dies his Executor cannot sell B. 69. To the Heirs of the Body of his Eldest Son is void B. 70. I give my Lease to my Wife for life and then to my Children unpreferred B. 90. To the Heir in see is void and he is in by descent B. 101. C. 18. That his Executor shall pay a Debt this is no Legacy B. 119 120. Devise shall be taken according to the Common not Legal construction B. 120. C. 18 19. Devise of three Closes to three and if any die that the other shall have all his part to be divided between them B. 129. That A. shall pay yearly 10 l. out of a Mannor is a good Devise of the Mannor to A. B. 165. They shall be construed favourably but not against Law B. 165. If the Devisor be distrained and dies before re-entry nothing passeth B. 165. All his Lands called Jacks in the occupation of J S. what passes if not in the occupation of J.S. B. 226. Like Case C. 18 19 132. Of a Mannor to B. and of a third part thereof to C. they are joynt Tenants C. 11. Words in a Devise shall never be judged repugnant if by any rational Construction they may consist C. 11 28 29 Devise of Lands to his Wife for life and after that she may give them to whom she will C. 71. Lands called H. in two Vills A. and B. Devise of H. in A. for life remainder of Hayes Land to L. No Land passes in remainder but Lands in A. C. 77. To J. for thirty one years to pay Debts remainder after the Term expired to his Heirs Males and if he die within the Term that G. shall have it and be Executor J. dies his Issue enters G. evicts him C. 110. Devise that the eldest Son shall take the profits until the younger be of Age and the remainder to the younger Son the elder hath see conditional C. 216. Devise that his Feoffees to Uses shall be seised to other Uses who are accounted Feoffees C. 262. Diminution The manner of alledging it A. 22. With what time it must be alledged B. 3. Disceit Fine reversed by such a Writ because the Land is Ancient Demesne A. 290. C. 3 12 117 120. Not abated by death of one Defendant C. 3. Upon a Recovery in a Quare Impedit A. 293. The manner of proceeding therein A. 294. For an Infant against his Guardian who lost the Land by default in Dower B. 59. Where Estate of the Conusee remains after the Fine reversed C. 12 120. Whom it shall bind without summons C. 120. Discent Takes not away the entry of him who claims by Devise condition broken c. A. 210. B. 192. cont B. 147. Disclaimer He who hath disclaimed shall not have a Writ of Error C. 176. Discontinuance de Process c. Vide Continuance Discontinuance de Terre Remainder in fee after a Lease for life where not discontinued by Fine by the Tenant for life A. 40. B. 18 19. None of Copyholds A. 95. Nor upon a Covenant to stand seised made by Tenant in tail A. 110 111. By Feoffment of Tenant in tail A. 127. B. 18 19. Quid operatur if the Feoffees joyn in the Discontinuance B. 18 19. Lease for years by Cestuy que use pur vy is no Discontinuance but warranted by the Stat. of 32 H. 8. B. 46. None if the Reversion be in the King B. 157. C. 57. Nor by Bargain and Sale by Deed enrolled without Livery C. 16. Disseisin and Disseisor Where a Man shall be a Disseisor at the election of another A. 121. B. 9. If Tenant per auter vy hold over after the death of Custuy que vie if he be a Disseisor B. 45 46. The like if Tenant for years holds over B. 45 46. If the younger Brother enter if he be a Disseisor or Tenant at sufferance B. 48. If Disseisee may give licence to put in Cattle before Entry C. 144. He who Disseiseth a Copyholder gains no Estate C. 221. Disseisin to the use of Baron and Feme he only agrees the Estate vests in both but the Feme is no Disseisor C. 272. Distress Cannot distrain upon the Kings Lands A. 191. Where and who may distrein the Cattle of a Stranger though not Levant and Couchant where and who not B. 7. If one as Bailiff may say he takes a Distress for one cause and carry it away for another B. 196. Dower The Wife not Dowable if the Husband be attaint of Treason although pardoned A. 3. Of what age the Feme must be A. 53. Inquiry of Damages where the Baron died seised A. 56 92. In such an Inquiry the Jury may find above the value of the Dower A. 56. By Custom of Gavel-kind whether demandable as by Common Law A. 62 133. How a Grand-Cape in D. must be executed A. 92. Wife Dowable of a Seisin in Fee defeasible by a Condition A. 168. The Wife shall be endowed at Common Law where the King is to have Primer Seisin A. 285. If a conditional Estate be a good Joynture to bar Dower A. 311. Bar that the Heir granted to the Wife a Rent in satisfaction c. he ought to shew what Estate he had in the Land B. 10. An Infant cannot lose by default in Dower unless per Gardian B. 59 189. Notwithstanding what divorces the Wife shall be endowed B. 169 170. If the Wife shall be endowed where the Husband takes a Fine and renders back presently C 11. If she be barred by Fine and Non-claim if she brings her Writ within five years and desists prosecution six years after C. 50. Touts temps prist a render Dower where necessary to plead it or to give Judgment by default C. 50 52. If the Wise of the Lord shall be endowed of Demeine Lands grantable and granted by Copy by the Lord B. 153. C. 59. Of a Presentation to a Church C. 155. It is a good Bar in Dower that the Feme accepted Homage from the Tenant C. 272. Pleading of agreement to a Joynture made during Coverture C. 272. Divorce If it be causa frigiditatis in the Man who hath Issue by another if the first Marriage be good or the Divorce good until avoided by Sentence B. 169 170 171 172. The several kinds of Divorce B. 169. In pleading of Divorce the Judges name Coram quo must be precisely pleaded B. 170 171. Droit The form of a Writ of Right and what is demandable therein A. 169. B. 36. Whether it lies of an Office Stat. W. 2 cap. 25. A. 169. B. 36. The manner of arrayment of the twelve Recognitors by four Knights A. 303. Droit of an Advowson where it lies A. 316. No challenge to the Polls after the Array made A. 303. Where a Man hath no remedy but by this Writ B. 62 63 65. A Writ of Droit Close directed to the Bailiff and procceeded coram Sectatoribus good C. 63 64. In such Writ twelve Recognitors retorned suffice in an Inferior Court
ad satisfaciend against him in his hands yet escape lies not A. 263. If it lies where the party was charged in Execution while he was Prisoner for Felony A. 276. It lieth not for escape of a Bail if no Scire facias issued against him B. 29 30. Was first given by equity of the Stat. W. 2. cap. 11. B. 9. No Costs upon non-suit in this Action B. 9. If the old Sheriff keep any Prisoner after he is discharg'd of his Office it is an Escape B. 54. If one escape upon an illegal Writ the Court will aid the Sheriff though he cannot deny to execute the Process B. 86. The Sheriff cannot seise the party who escapes by his consent B. 119. Escheat If a Remainder depending upon an Estate for life Escheat the Seigniory is extinct A. 255. Essoine In an Ejectione Firme adjorned A. 134. The Term in the eye of the Law begins the day of Essoines cont as to lay gents A. 210 211. In Quare Impedit B. 4 185. The office and force of an Essoine B. 4. If the Defendant appear and be essoined no Amerciament ought to be against him B. 185. An unnecessary and feigned delay C. 51. per Dyer Estoppel Count of a demise generally Defendant pleads nihil habuit in Tenementis the Plaintiff may estop the Defendant by pleading the Deed A. 156 204 206. Who shall take advantage of an Estoppel A. 157 158. The Jury ought to find it though the party hath not pleaded it A. 204 206. If Deed enrolled be an Estoppel to the party to plead Non est factum A. 184. Where the Court will take notice thereof if not pleaded A. 184. What Deeds made void by Statute are good by Estoppel against the party who made them A. 308 309. By matter of Record B. 3. Where one shall be estopped by a recital in a Bond Indenture c. where not B. 11. C. 118. What Estoppel made by the Ancestor shall bind the Heir B. 57 58. A Verdict for the Plaintiff upon a plene administravit estops the Sheriff of that County where the Tryal was to retorn nulla bona B. 67. By Deed indented B. 73. One seised in Fee takes a Lease of the Herbage of his own Land he is not estopped to claim Fee B. 159. No Estoppel by a Record if the Judgment be reversed C. 52. Jurors are not estopped by an Estoppel implied unless pleaded in the Record C. 209 210. Estovers Prescription for them within a Forrest A. 2. To a Messuage new built upon an old Foundation B. 44. What Estovers Lessee for years may take of common right C. 16. If Lessor grant Fire-boot Lessee may take Trees if there be no Under-wood C. 16. Evidence What Evidence may be given upon a Not Guilty in Trespass A. 301. C. 83. What upon a Nil debet in Debt for Rent B. 10. He who is in the affirmative must give Evidence first C. 162. Exception Count of a Demise of Demesne Lands and Evidence that the Demise was with an Exception yet good Evidence A. 139 140. Where in a Writ there must be a Forsprize B. 162. What may be excepted out of a Lease for years A. 49. De grossis arboribus crescen ' A. 61 116 117 246. Where a Praecipe shall demand a House with or without an Exception for part A. 252. Exchange By Baron and Feme who levy a Fine of the Land taken in Exchange the Feme may enter into her own Lands A. 285. Execution Where the Defendant taken by a Cap. pro fine shall be in Execution for the Plaintiff A. 51 276. The Defendant rendring himself shall not be in Execution unless the Plaintiff pay it A. 58. Execution shall be of the Goods which the Defendant had at the time of the Execution awarded A. 144 145. By Fieri facias good after the Defendants death A. 144. By Writ of Possession the Sheriff must turn all persons out of Doors A. 145. By Capias ad satisfaciend after Elegit retorned that the Lands were first delivered to others by Extent A. 176. The Sheriff upon a retorn Habendo may enquire the kinds of the Cattle if the Count or Avowry be incertain A. 193. One in Prison by Utlary against whom the Sheriff hath a Capias ad satisfaciend Escape lies not though the Sheriff do not charge him with the Capias ad satisfaciend ' A. 263. Stayed by Rule of Court after Judgment A. 276. Where the Defendant taken and in Prison for Felony is chargeable in Execution A. 276 277. B. 85 86 87. What are well executed not being retorned and what not A. 280. B. 49 50. But one Execution upon a joynt Praecipe in debt Secus upon a several Praecipe A. 288. After Execution sued the Defendant cannot sell his Goods bona fide A. 304. One attaint of Felony and also charged with Executions shall not be discharged of the Executions contra of Actions A. 326 327. B. 84 to 89. If the Execution be continued no Scire facias is necessary B. 77 78 87. In what Cases a Capias in Execution lay at Common Law and in what now per Statute B. 86 87. Capias lies against the Bail in B. R. and C. B. in a common Action and upon Audita Querela B. 88. If the Body of a Lord be liable to Execution B. 173 174. Executors Scire facias Executoribus c. without their names is good A. 17. How Judgment shall be against them where part only is found in Assets A. 67 68. Where Assets is found for part and after Goods come to the Executors hands how the Plaintiff must sue forth Execution scil by Scire facias A. 67 68. No plea against an Executor that the Executor was cited to appear to prove the Will and made default and that adm was com to the Defendant A. 90 91. Where Judgment shall be de bonis propriis where de bonis testatoris A. 94. The Executor gives his Bond for Mony a good Administration C. 111 112. Debtor makes the Creditor his Executor A. 112. What is a good refusal of Executors to prove the Will A. 135. Devise that Executors shall sell a Reversion sale by Parol is good and the Vendee is in by the Will A. 148. Debt by single Contract lies not against them though they do not demur but plead A. 165. Action by them de bonis asport in vita testatoris and the form thereof A. 193 194 205. One made Executor if he shall permit J. S. to hold a Term for three years when his power begins A. 229. By grant of Bona Catalla Goods of the Testators pass A. 263. Executor of Executor how to be named A. 275. In what case they shall recover Arrears of Rent in Fee by the Statute 32 H 8. 37. A. 302 303. Plene administravit before notice of the Suit the original being in a forein County A. 312 69. B. 60. The Executrix of the Debtee marries the Debtor she may have an Action for the
185. If a pain set in a Court-Baron may be mitigated by afferrors C. 8. The remedy for a Grantee of the King to recover a Post-Fine C. 56 234. Fine for alienation without Licence may be levied upon any Lands of the Vendor C. 241. Fine of Land. See more C. 74. Partes finis nihil habuer where Executors sell by vertue of a Devise that they shall sell A. 31. Not receiveable if made to two heredibus suis A. 62. A Fine levied of two parts of a Mannor sans dire in tres partes dividend good in a Fine but ill in a Writ A. 115. How to be pleaded upon the Statutes of 4 H. 7. 1 H. 3. 32 H. 8. A. 75 76 77 78. B. 36 37. Quod partes finis nihil habuer how and in what cases to be pleaded A. 78 83 185. B. 36 37. C. 37 119. Where it shall be reversed in part or in the whole A. 115. C. 120. Levied in Exeter City and reversed because it was de duobus Tenementis A. 188. Who shall be bound and how by a Fine and Non-claim after five years A. 212 213 214 259 260 261. B. 18 19 36 37. C. 10. What remainder and contingent Uses are barred by Fine A. 244. B. 18 19 36 37. C. 10. With render of a Rent in Fee and the Lands to the same persons for life how the Law construes this render A. 255. In pleading of it it is not necessary to say that the Conusor was seised A. 255. Dangerous to plead a Fine inter alia A. 255. By Baron and Feme Come ceo que il ad del done le Baron does not bar the Feme of Dower A. 285. Of Ancient Demesne Lands avoided by a Writ of Disceit A. 290. C. 220. For life without the word Heirs is not to be received for fear of occupancy B. 124. The force of a Fine without proclamation such Fine is not void but avoidable by Formedon B. 157. An Infant may declare the Uses and it binds B. 159. Where it must be pleaded and conclude Si actio and where by Estoppel B. 160. Forfeiture Baron and Feme makes a Feoffment of the Wives Joynture to one and his Heirs to the use of the Feoffee for the life of the Feme and adjudged a Forfeiture A. 125 126. Tenant for life forfeits his Estate by levying a Fine A. 40 212 214 262 264. If a remainder which is to vest upon a contingency may be forfeited before it vest A. 244 245. What distress or acceptance shall bar a Lessor to enter for a forfeiture for non-payment A. 262. If Bargain and Sale by Tenant for life be a forfeiture A. 246. It is no forfeiture B. 60 65. What Aid Prayers Vouchers Attornments and Pleadings by Tenant for life and years in real Actions is a forfeiture of his Estate B. 61 62 63 64 65 66. C. 169 170. If Tenant for life and the Reversioner joyn in a Fine and the Reversioner reverse the Fine for his Nonage yet he cannot enter for forfeiture B. 108. If Cestuy que vie die and the Tenant hold over if he be Tenant at Will Sufferance or a Disseisor C. 151 152. Form. Want of Traverse is but Form A. 44. Pleading to a Condition performance of Covenants generally is but form A. 311. Want of shewing a Deed is but Form B. 74. C. 193. Want of shewing a place is substance C. 200. What other matter is but Form C. 235. Formedon After the Tail spent the Plaintiff may suppose all to be dead without Issue A. 286. C. 103. Gavel-kind Land no Assets to bar a Formedon A. 315. In Reverter upon a Gift to the Heirs of the Body of Baron and Feme remainder to their Heirs B. 25. Upon a Gift in Tail remainder to Coparceners the Heir of the Survivor must bring a Formedon for that they claim as purchasers C. 14. Forrest Lex Forestae is but a private Law and must be pleaded B. 209 210. Fraud Fraud shall not be presumed but must be averred C. 255. G. Gardian GArdian in Soccage may grant the Ward though he cannot forfeit C. 190. Gardian in Soccage may enter for Condition broken and make Leases A. 322 323. The Court refused to appoint one for an Infant retorned Tenant in Dower unless in Court in person B 189. Gavel-kind Dower of such Lands is by custom a moiety quamdiu sola c. A. 133. Such Lands are not Assets to bar a Formedon A. 315. Grant. Of Estovers pro Easiamento A. B. heredum suor ' how construed A. 2. Lease at will 10 l. Rent The Lessor grants eundem reditum for life A. 151. Of the next avoidance does not give the then present avoidance A. 167. Of a Vicaridge does not pass the Presentation thereunto A. 191. If an Executor bona sua the Testators Goods pass A. 263. All my Goods and Chattels in such a Town a Lease of the Pawnage of a Park passes C. 19. All Wood upon such Land to be cut and carried away in 30 years does not grant any but what was then growing C. 29 30. A Grant cannot be but of a thing in esse C. 29 30. The force of the word Grant in a Lease C. 33. Grant of all Woods and Underwoods C. 59. Grant of a Rent-Charge to begin when J. S. dies without Issue who had Issue which died without Issue C. 103. All my now Goods and Chattels if the interest or possibility of a Term pass C. 153 to 158. Of the third avoidance c. the Wife is endowed of it the Grantee shall have the fourth C. 155. What interest of a Term or possibility may be granted C. 157 158. Of the Ear-grass of a Meadow C. 213. That the Grantee may take a Load of Hay yearly out of his Meadow the Grantee cannot take no Hay in one year and take two the next C. 226. What shall be sufficient certainty to describe what Lands are granted though part of the description be false A. 119. B. 226. C. 18 19 162 235. Grant of Common in all my Lands the Grantee shall have no Common in the Orchards Gardens c. C. 250. Divers good Cases where Grants of Tenant in Tail and he in Reversion or of Coparceners Joynt-Tenant and Tenant in Common shall be adjudged joynt or several Grants or the confirmation of one C. 254 255 256. Grant of the King and Patents Of a Mannor cum pertin Another Mannor which holds of it passes A. 26. Of an Acre in a great Field not specifying where is void Secus in the case of a common person A. 30. By his Grant Omnium bonorum catallorum Felonum what passes A. 99 201 202. B. 56. Shall be taken according to the true meaning A. 119 120. B. 80. Of a Chose en Action must be very strictly penned N. 271. C. 17 18 196 198. By the Statute of 31 H. 8. cap. 20. the King may grant Lands forfeited before Office B. 124. The force of a Non obstante in
Middlesex may inquire by inquest of Office of the Customs in London C. 127. Inrollments If a Lease enrolled be lost the Jur. is not of any effect A. 329. Where a Deed may operate both by the Statute of Inrollment and of Uses C. 16. What is a good Plea against a Deed enrolled A. 183 184 B. 121. How the time is accompted for the six Months A. 183 184. If it be enrolled non refert if it were acknowledged C. 84. How a Corporation must acknowledge a Deed C. 84. Intendment Where two several quantities of Acres shall not be intended all one A. 44. Where the intent of a Man is traversable ib. 50. Where issuable B. 215. Where and how the Law construes the Intent of one who enters in Land A. 127. Where mentioning a Rent of 8 l. and after saying 8 l. Rent is intended the same Rent without the word praedict ' A. 173. How far the Law takes matters by Intendment in Wills Deeds c. A. 204 210 211. St. Martins and St. Michaels day what Feasts by Intendment A. 241. Where want of an Averment is aided by Intendment A. 281. C. 42 43. Where Baron and Feme are vouched it is intended to be in right of the Feme A. 291. If a Service be reserved according to the value of the Land it is intended the then present value B. 117. C. 114. Seisin in Fee is intended to continue until the contrary appear C. 42 43 96. Intrusion Bar therein by Grant of the King A. 9. Into the Rectory and receiving the Tithes A. 48. Disceit is no Bar therein for nullum tempus occurrit Regi B. 31 32. The Information is prout patet per recorda If the Defendant plead a Title If he need to traverse nul tiel record B. 30 31. If every continuance is a new Intrusion where the first Entry was lawful B. 206 207. Joynt-Tenants and Tenants in Common One Joynt-Tenant of the next avoidance to a Church Ecclesia vacante releases to his Companion nihil operatur A. 167. Cannot sue one the other in Trespass for their Lands A. 174. C. 228 229. Where two shall be Joynt-Tenants or Tenants in Common of an Estate tail A. 213 214. Two Joynt-Tenants are disleised by two to one of whom one Joynt-Tenant releaseth the other enters he is Tenant in Common to the Relessee A. 264. One Joynt-Tenant cannot grant to or enfeoff his Companion A. 283. If a Joynt-Tenant and a Tenant in Common may joyn in debt for Rent and make a general Count where one is to have a greater share B. 112. Devise to two to be equally divided if it be an Estate in Common or a Joynt B. 129. C. 9. If one Joynt-Tenant accept a Lease of the Land from his Companion he is estopt to claim by Survivor B. 159. Pleading of Joynt-Tenancy in abatement by Fine or Deed Stat. 34 E. 1. 8. B. 161 162. Joynder en Action Action Plea. Three Tenants in a Praecipe cannot vouch severally A. 116. Two Defendants justifie severally and the Plaintiff says joyntly de injuriis suis propr ' c. and good A. 124. Tenant for life and he in remainder in tail joyn in prescription A. 177. Where two Joynt-Tenants or Tenants in Common shall joyn in one Formedon A. 213 214. In what real Actions who shall joyn or sever A. 293 294 317. In a Writ of Error the like A. 293 294. Who shall joyn in a Writ of Error or in Conspiracy or Attaint A. 317. Three joyn in Action upon the Statute of Hue-and-Cry and adjudged good Quod est mirum A. 12. Covenant to two quolibet eorum both must joyn B. 47. C. 161. If one is obliged to account to three he may do it to any one B. 75 76. Debt upon a Judgment against three cannot be brought against one only B. 220. Two Infants Joynt-Tenants cannot joyn in a Dum fuit infra aetatem C. 255. Ioynture What alienation of a Feme of her Joynture is within the Statute 11 H. 7. 20. A. 261 262. Iourneys Accompts If Error lies for the Heir upon death of his Ancestor by Journeys Accounts Quaere A. 22. Issues joyn One joynt replication de injuriis suis propriis to two justifications adjudged good A. 124. Is called in the Civil Law Lis contestata A. 278. If an Advowson be appendant or in gross A. 323. How it shall be joyned upon pleading Ancient Demesne A. 333. Upon special Bastardy A. 335. Issue in an Inferior Court triable out of their Jurisdiction not triable in the Courts at Westm B. 37. Mis-joyn for that the Plaintiff in Covenant altered a word from the Covenant B. 116. In Replevin upon absque hoc that he took them as Bailiff B. 215. Iudgment Upon the Defendant rendring himself in discharge of his Bail A. 58. The Defendant pleads a frivolous Plea which is found for the Plaintiff Judgment shall be entred as by Nihil dicit Nullo habito respectu c. A. 68. In a Sur cui in vita for part of the Messuage demanded A. 152. In Ejectment Quod quer recuperet possessionem is as good as Termin A. 175. Quod Capiatur well enough although pardoned by Act of Oblivion A. 167 300. Shall not be for the Plaintiff if by the Record it appears the Plaintiff hath no cause of Action or that the Action is brought before the Debt due A. 186 187. B. 99 100. C. 86 87. Entred as of a day past where the Defendant dies while after Verdict the Court takes time to consult of the Law A. 187. In what cases the Judges may give Judgment by sight of an Almanack A. 242. Judgment for the Plaintiff in Trespass although the Defendant died before the Writ of Inquiry returned A. 236. In Forcible Entry for treble Costs and Damages A. 282. Nihil de fine qui a pardonatur not good because the Defendant does not plead the Pardon A. 300 301. In Trespass or Case may be arrested after the first Judgment A. 309. Arrest of Judgment shewed in writing in the Exchequer B. 40. Judgment final upon a Verdict in a Counter-plea in Aid B. 52. Where it shall be reversed in part or in all B. 177 178. Against the Heir where his Plea is found against him is general against all Lands C. 3. Iurisdiction The Spiritual Court hath Jurisdiction where right of Tithes comes in question between two Parsons A. 59. In what Cases the Spiritual Court may have Jurisdiction for Slanders B. 53. If the Court hath not Jurisdiction of the Action all is void but other faults make the proceedings only voidable B. 89. One cannot plead to the Jurisdiction of the Court after Imparlance C. 214 215. Iour in Court dies Iuridicus What things may be done upon day extrajudicial B. 206 207. Iustices and Iudges Whether Justice of Peace in a Vill may be by Prescription A. 106. In what Inferior Courts who are Judges A. 217 228 242 316. B. 34. If a Judge may take
B. 74. Of Merton cap. 4. of Improving Commons The Lord shall have no Common to the Land improved B. 44 45. De Bigamis cap. 3. A. 285. Westm. 1. cap. 3. Of false News A. 287. W. 1. c. 39. Of vouching out of the Line B. 149. Cap. 10. Of choosing Coroners does not oblige to choose Knights B. 160 161. Statutes of Westm 2. Cap. 5. of Essoins A. 143. De Donis cond A. 212 214. Cap. 45. of Scire facias A. 284. B. 88. Cap. 11. Of Escapes B. 9. Cap. 3. Of Resceit to a Wife and to those in Reversion B. 62. Cap. 18. which gives Elegit or Fieri facias B. 84 to 88. Cap. 40. which take away the parol demur for nonage of the Tenant in a Cui in vita B. 148. Cap. 12. Of enquiry of the Abettors of an Appeal C. 140. W. 3d. Quia Emptores terrarum B. 15 16 17. Artic. super Cart. 3. That the Coroner of Middl. and of the Verge shall take Inquisition If one Man be Coroner of both if it sufficeth B. 160. Edward the 3d. 4 E. 3. 7. de bonis testatoris asport A. 193 194 195. 25 E. 3. 7. Of bar in Quare Imp. A. 45. B. 85. 45 E 3. 3. Of Tithes de silva cedua B. 80. 25 E. 3. Which gives Execution by Cap. B. 85. 14 E. 3. Of vouching dead persons The demandant must counterplead before Sum. ad Warrant issue C. 134. Rich. the Second 2 R. 2. Of News A. 287. 13 R. 2. Of Resceit of him in reversion and remainder B. 62. Hen. 4th 1 H. 4. Concerning Dutchy Lands A. 12. 4 H. 4. That no Judgment be avoided but by Error or Attaint B. 116. Hen. 5th 2 H. 5. 3. Of Jurors Aliens The Allen needs not have 4 l. per annum A. 35. 1 H. 5. 5. Of Additions B. 183 186 200. Hen. 6th 8 H. 6. Forcible Entry treble Costs and Damages A. 282. B. 52. In such case he in Reversion is restored and his Lessee may enter A. 327. 18 H. 6. ca. 17. For selling Vessels of Wine which contained not the full measure B. 38 39. 18 H. 6. Which gives the traverse of an Office found who shall have such traverse B. 185 186. 23 H. 6. ca. 10. The Condition of the Bond being to appear and answer c. B. 78. The pleading upon it B. 107. Bond taken of one in Execution void B. 118 119. All Bonds taken of persons not bailable are void C. 208. A promise void by this Act grounded upon consideration the Sheriff let one Escape C. 208. Hen. 7th 4 H. 7. Of Fines how to be pleaded A. 77. The Statute is construed liberally to uphold the non-claim A. 100 213. Who shall be barred thereby A. 212 213. B. 36 37 157 158. C. 10 227. What is a good claim within this Statute B. 53. By a Woman by Writ of Dower C. 50 221. If a Woman be barred of her Dower by a Fine levied by her Husband and no Dower brought in five years C. 50 78. 11 H. 7. 20. Of Alienations by Women A. 261 262. B. 168. C. 78. 3 H. 7. Of Appeals B. 160 161. Hen. 8th 6 H. 8. 15. Of Recital in Patents A. 321. vid. tit Recital 21 H. 8. Of Farms taken by Parsons C. 122. 21 H 8. cap. 19. Of Avowries A. 201. 21 H. 8. 13. Of Pluralities A. 316. 21 H 8. 15. Of falsifying Recoveries B. 65. 23 H. 8. 3. Of Attaints who is pars gravata A. 279. 23 H. 8. 15. Of Costs A. 105. B. 9 10 52. Extends not to Actions given by Statutes C. 92. 26 H. 8. Of the Lands of persons attainted A. 21. 27 H. 8. Of Uses B. 14 258. B. 6 15. How Conveyances to uses before the Statute must be pleaded A. 14 258. This Statute vests the possession of a Term according to the Use as well as a Freehold B. 6 7. What Uses were before this Statute B. 15 16 17 18. The manner and reason of making this Statute B. 17. 28 H. 8. 15. Of the Jurisdiction of the Lord Admiral A. 106 270. 31 H. 8. cap. 20. Which enables the King to grant Lands forfeited without Office found B. 124. 31 H. 8. 13. Of discharge of Tithes of the Lands of the Abbies c. A. 231 232. 31 H. 8. Of Leases made by the Religious Houses shortly before their dissolution B. 55. C. 164 165. 32 H. 8. Of dissolving Abbies if a Unity of possession c. extinguish a Common C. 128. 32 H. 8. Of Partition if it gives that Action to a Corporation C. 162. 32 34 H. 8. Of Wills A. 252 267 113. What Estates may be devised thereby A. 252. B. 41 42 43. C. 105 274 275 276. Upon the clause that the Wife shall be endowed but of two parts 32 H. 8. B. 131. Of a Will made before the Statute C. 28 29. What is a good Will in writing C. 79. 32 H. 8. 37. Of Arrears of Rents in Fee to be recovered by Executors A. 302 303. Idem upon the clause for re-entry upon breach of a Condition B. 33 34. C. 104. 32 H 8. Of Fines and Recoveries by Tenants in tail A. 244. B. 36 37 57 62 63. Vide Stat. 14 El. cap. 18. B. 224. C. 10. 32 H. 8. 30. Of Jeofails A. 175 238. It helps not Issue joyned as to part of a Plea nothing being said as to the other part B. 195. 32 H. 8. c. 9. Of buying pretenced Titles A. 166 167 208. B. 39 48. C. 79 233. 32 H. 8. 28. Of Leases by Bishops A. 59. 32 H. 8. 7. Of the Spiritual Court A. 130. 32 H. 8. Of Leases by Tenant in tail A. 148. C. 156. Idem Of Leases by Tenant for life B. 46. 32 H. 8. 37. Of Arrears of Rent c. extends to Demesne Lands of a Mannor granted by Copy B. 153. C. 59 263. 33 H. 8. Of Offices found for the Lands of persons attainted A. 21. 33 H. 8. Of Recovery of Debts forfeited to the King B. 33. Same Statute of Debts due to the King what Gifts do avoid the Kings Title B. 90 91. 35 H. 8. Which gives the Husband liberty to make Leases if he may make Leases in Reversion C. 132. Edw. 6th 1 Ed. 6. Of dissolving Religious Houses A. 38. A Chauntry in reputation with the Statute C. 114. 2 E. 6. Of Murder done at Sea A. 270. 2 E. 6. 13. Of Prohibitions A. 286. B. 212 213. C. 257. 5 E. 6. Of Ingrossers of Victual B. 39. 8 E. 6. 4. Indictment upon it must be that he drew a Weapon to strike B. 188. 2 E. 6. 24. Of Appeals where the dead was stricken in one County and dies in another C. 140. 3 E. 6. 4. In what case one may have a Constat of Letters Patents C. 165. 2 E. 6. cap. 13. No remedy for the treble value of Tithes in Equity but at Law C. 204. Queen Mary 1 2. Of unlawful impounding Distresses B. 52. Queen Eliz. 1 Eliz. 1. Of the High
laid before the Plaintiffs Title adjudged not good A. 104. Where one shall have time to do an Act during his life A. 124 125. Action appearing to be brought before Mony due how adjudged A. 186 187. Bargain and Sale of Trees Habend Succidend infra 20 annos how adjudged A. 275. Solvendum the value of the profits per annum is intended the then present value C. 114. Tithes Cannot be granted without Deed A. 23. B. 73. Are now become Quasi Laicum seodum A. 23 300. Vest in the Owner immediately after set out A. 39. If in trespass the right of Tithes come in question between two Parsous the Spiritual Court hath Jurisdiction A. 59. Who may prescribe in non decimando A 241 248. Release of all demands in the Parishioners Land does not discharge Tithes A. 300. What is a good discharge of payment of Tithes A. 332 330 334. B. 73. By the Civil Law the Parson is to have every tenth Land of Corn B. 70. In what case they shall be paid although the Lands were the Cistertians B. 71. Of what Wood and how Tithes shall be paid B. 79 80. Title Where the Defendant must shew a Title in pleading where not A. 45 46. He who pleads against the Kings Title must shew his own A 202. B 30 31. Toll For what Toll shall be taken A. 218. For what Goods it may be taken of Tenants in Ancient Demesne A. 232 233. Tort. Where a Man shall take benefit of his own wrong doing where not A. 339 331. Traverse Two Traverses in an Intrusion A. 38. Where the place is traversable A. 39. Plea vicious for want of a Traverse A. 44 78 79. Is but matter of form A. 44. Where a Mans intentions are c. A. 50. Where in a Quare Imp. the Appendancy or the Presentation is traversable A. 154. It is not traversable whether Mony were paid upon a Bargain and Sale A. 170. In Quare Imp. absque hoc quod disturbavit aliter seu alio modo A. 230. What matters are traversable in Assumpsits A. 252 253. Where the dying seised and where the descent is traversable A. 310. B. 185. Where a thing is to be done by Covenant upon request the request is traversable B. 5. An inducement to a Traverse ought to be matter traversable B. 32. Where the Defendant justifies in a local thing in another County he must Traverse the County in the Declaration B. 79. Where the Defendant is charged with a malicious Tort and pleads in excuse he must Traverse the malice or default charged on him B. 94 95. Per Executor that he administred about Funerals and Traverse that he administred aliter seu alio modo B 104. Prescription pleaded against Prescription not good without Traverse of the first B. 209 210. Where the Command of a Lord to the Bailiff is traversable B. 215 216. In Replevin Bar That he took the Cattle of his own wrong absque hoc that he took them as Bailiff B. 215. Trespass for driving Sheep per quod they lost their Lambs no Plea to say he took them as distress without a Traverse to the Tortious driving C. 15. If the Defandant may plead another promise and Traverse parcel of the promise in the Count C. 67. Trespass Done by two It is a good Bar that the Plaintiff had Judgment and Execution against one A. 19. C. 122. Bar by a Recovery in an Assise and the pleading thereof A. 24. Lies with Simul cum J.S. vel Cum quodam homine ignoto A. 41. C. 77. Lies against one intrusted to sell Goods in a Shop if he imbezel any to his own use A. 87. 88. Lay before the Plaintiffs Title accrued not good A. 104. Possession is a good Title for the Plaintiff if the Defendant have no better to shew A. 215. Lies for a Copyholder against his Lord for cutting his Trees A. 272. In Ejectione firmae is a good Bar against the same party in Trespass A. 313. C. 194. Trespass in domo New assignment may be made in a House and a Barn B. 184 185. Quare cuniculos cepit B. 201. Grantee of the Herbage cannot have a Trespass Quare clausum fregit C. 213. If Trespass lies for a Greyhound C. 219. For what things ferae naturae the Writ may say suos supposing a property Ibid. Trial. See Visne Quaere If Issue joyned in an Inferior Court tryable out of the Jurisdiction may be sent into the Courts at Westm to be tried there A. 91. It shall not B. 37. Whether Wise or not Wise a Church or not a Church Prior or not Prior within or without a Parish triable at Common Law A. 53 181. B. 170 171. C. 129. Where the Spiritual Court shall try incidents arising upon a matter triable there A. 181 182. Of Ne unque accouple c. non fuit uxor A. 53. Of an Executors refusal how A. 205 206. The Court may judge what day is dies Juridicus by an Almanack A. 242. Where it shall be of Men of two Counties B. 102 103. Temporal Courts try Si fuit uxor Cont. of Ne unques accouple c. B. 170 171. A. 53. Two several Jurors try Issues upon one Action there can be but Costs by one Jury B. 177. In what case refusal to be Executor shall be tryed per Pais and where by the Bishops Certificate B. 180. Trial of matter of Law as to make a sufficient release must not be left to a Jury B. 197. Trial of Ability or Disability of a Parson shall be by the Bishop But if the Parson be dead then by Jury C. 46 47. How an Issue Whether one be a Counsellor in â—eg eruditus be triable by Jury C. 238. Trover Bar by a Sheriffs Baily for executing of a Fieri facias good A. 144. Of Cart-Loads of Hay A. 178. What is a good Bar therein what not A. 178 189 222 223 247 248. B. 13 37. What thing is traversable therein A. 189 247 253. B. 13 94. What Act amounts to a conversion A. 222 223 224. Trover by the Feme and conversion by both The Action must be against both A. 312. What evidence the Defendant therein may give upon Not guilty pleaded B. 220 221. Utlary a good Bar in this Action C. 205. V. Variance BEtween a Suggestion and a Count in Attachment sur Prohibition is Error A. 128. What variance in recital of a Fine wrong shall prejudice C. 136. The like in wrong reciting of former Conveyances Ibid. View In a Writ of Right de Custodia Forestae the Forest must be put in View and of Rent the Land A. 86. Venire Facias De novo for the incertainty of a special Verdict A. 210. De medietate linguae B. 112. Where it shall say Quorum quilibet hab 4 l. in terris c. B. 112 113. Upon a special Writ as Audita Querela must be special C. 260. Verdict Void because a Juror received Mony of a Solicitor A. 18. Where surplusage