for a year rendering forty shillings Rent at Michaelmas and before the Feast does release to the Lessee all Actions yet after the Feast he shall have an Action of Debt for non-payment of the forty shillings notwithstanding the Release And 40 of Ed. 3. 48. Hillary By such Release to the Conusor of a Statute-Merchant before the day of payment the Conusee shall be barred of his Action because that the Duty is always in demand yet if he release all his right in the Land it is no Bar 25 Assis 7. And Althams Case Cokes Rep. 153. By a Release of all Demands not onely all Demands but also all causes of Demands are released And there are two manners of Demands viz In Deed and in Law In Deed As in every Praecipe quod reddat there is an express Demand In Law As in every Entry in Land Distress for Rent taking and seising of goods and the like acts in Pais which may be done without words are Demands in Law And as a Release of Suits is more large and beneficial then a Release of Complaints or Actions so a Release of Demands is more large and beneficial then any of them for by that is released all those things that by the others are released and more for thereby all Freeholds and Inheritances are released as in 34 H. 8. Releases 90. 6. He who does release all Demands does exclude himself of all Entries Actions and Seisures And Littl. 170. By the Release of all Demands Warranty is released and yet that is Executory and the reason hereof is that by the Release of Demands all the means remedies and causes that any hath to Lands Tenements Goods or Chattels are extinct and by consequence the right and interest in all of them And in 40 Ed. 3. 22. It is debated there whether a Release of all Demands by the Lord to the Tenant to hold onely by Rent and Fealty shall bar the Lord to demand reasonable ayd to marry his Daughter but it was agreed there that such Release shall bar the Lord of his Rent for as it is there said that is always in demand And 13 R. 2. Avowry 89. One gives Land in Tayl to hold by Rent Homage and Fealty for all Services and Demands this does discharge the Tenant of Relief but 18 Ed. 3. 26. contrarium tenetur And 7 Ed. 2. Avowry 211. Suit at a Leet by reason of Residency is not discharged by a Feoffment to hold by Rent for all Services and Demands for this service is not in respect of the Land but of residency of the person And 14 H. 4. 2. Gilbert de Clare Earl of Glocester before the Statute of Quia Emptores Terrarum did give Land parcel of the Honor of Glocester to hold of him as of the Honor to hold by Homage Fealty and Rent for all Services and Demands And after long argument it was agreed and hereby the Lord was excluded to have a Fine for alienation which otherwise was due from every Tenant of the Honor. And as the Fine was discharged there by the Feoffment so it might have been by Release of all Demands And the whole Court agreed Judicium that by this Release of all Demands the Rent is released and so the Plaintiff ought to be barred and so Pasch 16 Jacob. Judgment was given accordingly Hillar 13 Jacob. Southern against How IN an Action on the Case for that the Defendant the first of April 5 Jacob. was possest de quibusdam Jocalibus artificialibus contrefectis Anglice artificial and counterfeit Iewels viz. two Carcanets one pair of Ear-rings one pair of Pendants and one Coronet as of his proper goods and the Defendant there and then knowing the said Iewels to be artificial and counterfeit and fraudulently intending to sell them for true and perfect Iewels there and then did deliver them to one William Sadock his servant to whom at that time the said Iewels were known to be counterfeit and artificial and did command the said William to transport the said Iewels beyond the Seas into Barbary where the Defendant well knew that the Plaintiff was residing and did further command the said William that he should conceal the counterfeitness and falsness of the said Iewels and that after his arrival he should repair to the Plaintiff and shew him the said Iewels for good and true Iewels and there require the Plaintiff to sell the said Iewels for good and true Iewels for the Defendant to the King of Barbary or to any other that would buy them and that he should receive a price for them as if they were good and true Iewels That the 20 of April 5 Jacob. the said William did sail from London to Barbary and there the 22 June 5 Jacob. arrived and did then repair to the Plaintiff and knowing the said Iewels to be artificial and counterfeit did shew them to the Plaintiff for good and true Iewels and there and then did require the Plaintiff to sell them for good and true Iewels to Mully Sydan then King of Barbary and there then did affirm to the Plaintiff that the said Iewels were worth in value 14400 Dunces of Barbary Mony amounting to 810 l. of English Mony And the Plaintiff not suspecting the said Iewels to be counterfeit but conceiving them to be good and true did receive them of the said William and afterwards scil the 22 of August 5 Jacob. did offer them to the said King of Barbary as good and true Iewels and there and then did procure the said King to buy the said Iewels not being of the value of 3000 Ounces of Barbary Mony amounting to 168 l. 15 s. English for 14400 Ounces of Barbary Mony amounting to 810 l. which mony the Plaintiff the 22 of August 5 Jacob. received of the said King for the said Iewels for the Defendant and did pay the said sum then there to the said William for the Defendant and the said William immediately after the receit thereof did secretly withdraw himself out of Barbary and did return into England to the Defendant with the said sum and the first of October 5 Jacob. did pay the same to the Defendant That the 30 of May 6 Jac. the said King perceiving the said Iewels to be counterfeit caused the Plaintiff to be arrested and imprisoned for them and retained him in prison three months and until the Plaintiff out of his proper goods did repay to the said King the said 14400 Ounces of Barbary Mony That the first of October 6 Jac. the Plaintiff gave notice to the Defendant of the repair of the said William to him and of all the premisses and requested him to pay to the Plaintiff the said sum which yet he hath not payd ad damnum 2000 Marks The Defendant pleaded Not guilty The Iury found that the first of April 5 Jac. the Defendant was possest of the said Iewels and knowing them to be artificial and counterfeit and intending fraudulently for good and true Iewels
Defendants Father was seised in Fee of divers Lands and made a Feoffment to the use of himself for life the remainder to the Defendant his Son in Tail with divers remainders over with power of revocation by writing under his hand and Seal and publisht in the presence of three Witnesses And then for the consideration of four hundred pounds did enter into this Recognizance to the Plaintiff and dies And whether this Land were extendable or not against the Son was the question And I conceive that by the Statute of the 27. Eliz. this Recognizance may be extended against the Son the words of which Statute are And be it further enacted by the Authority aforesaid that if any person or persons have heretofore sithence the beginning of the Queens Majesties Reign that now is made or hereafter shall make any conveyance Gift Grant or Demise Charge Limitation of Use or Uses or Assurance of in or out of any Lands Tenements or Hereditaments with any Clause Provision Article or Condition of Revocation Determination or alteration at his or their will or pleasure of such Conveyance Assurance Grants Limitation of Uses or Estates of in or out of the said Lands Tenements or Hereditaments or of in or out of any part or parcell of them contained or mentioned in any Writing Deed or Indenture of such Assurance Conveyance Grant or Gift and after such Conveyance Grant Gift Devise Charge limitation of Use or Assurance so made or had shall or do bargaine sell demise grant convey sell or charge the same Lands Tenements or Hereditaments or any part or parcell thereof to any person or persons bodies Politick or Corporate for money or other good consideration paid or given the said first Conveyance or Assurance Gift Grant Demise Charge or Limitation not by him or them revoked made void or altered according to the power and authority reserved or expressed unto him or them in and by the said secret Conveyance Assurance Gift or Grant That then the said former Conveyance Assurance Gift Grant or Demise as touching the said Lands Tenements and Hereditaments so after sold bargained conveyed demised or charged against the said Bargainees Vendees Lessees Grantees and every of them their Heirs Successors Executors Administrators and Assigns and against all and every person and persons which have shall or may lawfully claim any thing by from or under them or any of them shall be deemed taken and adjudged to be void frustrate and of none effect by vertue and force of this present Act. So that this Statute doth not only aide Purchasors of the Lands but those who for a valuable consideration have any charge out of the Land or upon the Land But it may be objected that the Statute doth make the revokable Conveyance void only against the Bargainees Vendees Grantees Object and Lessees but does not speak of any Conuzee But I answer that it appears by the foregoing words Respons that the Statute intends to aide not only Bargainees c. but also all that have any charge out of the Land or upon the Land and although the last words of the Statute doe not speak expresly of Conuzees yet the Statute shâ—ll be expounded to extend to them and the Statute of West 2. cap. 1. Quod illi quibus tenementa data sunt in Taile potestatem alienandi c. which words seem only to restrain the Dâ—nee in Tail yet in the 5. Edw. 2. Form 52. the issue is thereby restrained and 3. Edw. 3. Formedon 46. that Tenant in tail cannot charge the Land no more then alien can forfeit the Land so that if he grant a Rent or acknowledge a Statute or Recognizance or commit Felony or Treason and dies the Issue shal have the Land discharged And this Statute hath alwaies been taken as to the equity thereof to releive Purch sors and those who have and therefore in Coke R. 3. 82. B. Standen and Bullocks case Mich. 42. 43. Eliz. where a man had conveyed his Land to the use of himself for life and then to the use of divers others of his blood with future power of revocation as after such a Feast or after the death of such a one and after and before the power of revocation commenc'd he for a valuable consideration did bargain and sell the Land to another and his Heirs this bargain and sale is within the remedy of the Statute for although the Statute saith the said first Conveyance not by him revoked according to the power by him reserved which seems by the literall sense to be intended of a present power of revocation for no revocation may be made by force of a future power untill it comes in esse yet it was holden that the intention of the Act was that such a voluntary Conveyance which was originally subject to the power of revocation be it in present or in future shall not be good against a Purchasor bona fide upon valuable consideration and if other construction be made the Act will signifie very little and it will be easie to evade such an Act. And so if A. hath reserved to him a power of revocation by the assent of B. and then A. bargains and sells the Land to another this bargain and sale is good and within the remedy of the said Act. The King against Sir John Byron Knight IN a Quo Warranto for that the Defendant for a year past hath used and yet doth use without any Warrant within the Mannor of Colswick in the County of Nottingham within the bounds of the Kings Forest of Sherwood and within the reguards of the said Forest to have a Park within the said Mannor with a Pale Hedge and Ditch inclosed being two hundred acres of Pasture and a hundred acres of Wood within the said Park Et ad venandum capiendum occidendum apportandum in the said Park and two hundred acres of Pasture and a hundred acres of Wood omnes omnimodas damas Domini Regis Forrestae suae praedict in parcum praedict praedict 200. acr pasturae 100. acr Bosci aliquo tempore venand occidend Ita quod Forrestini Domini Regis forestae praâ—dict nec aliquae aliae personae quaecunque intromittantur ad venandum fugandum intra parcum praedictum 200. acr pasturae 100. acr Bosci sine licentia defendentis The Defendant pleaded that John Biron Knight the Defendants Grandfather was seised in Fee of a Messuage of a hundred acres of land two hundred acres of Meadow three hundred acres of pasture and a hundred acres of wood in Colwick in the County aforesaid now and time out of mind called the Mannor of Colwick within the meets and bounds of the Forâ—st aforesaid And that the said John Byron the Grandfather and all those whosâ— Estate the said John Byron hath in the aforesaid house and a hundred acres of land two hundred of Meadow and three hundred of Pasture and a hundred of Wood in Colwick aforesaid have had
any Lands Tenements or Hereditaments parcel of their Bishopricks or any charge or incumbrance out of the same or of any other thing in their disposition to binde their Successors except onely Leases for 21 years or three lives of such Lands Tenements and Hereditaments which have been usually demised or whereupon the usual Rents have been reserved according to the said Act. And although such Lease be made of such Lands usually demised reserving the usual Rent according to the said Statute yet unless all the limitations prescribed by the Statute of the 32 of Hen. 8. be not pursued as if it be not all in possession or that the old Lease be not expired or surrendred within one year which is not prohibited by the first of Eliz. as it was adjudged in Foxes Case then such Lease will not binde the Successor unless it be confirmed by the Dean and Chapter And such construction as aforesaid hath been made to disable a Bishop to make any Estate except Leases for 21 years or for three lives as is aforesaid as concerning the binding of the Successor as the Grant of the next avoydance by a Bishop to another although it be confirmed by the Dean and Chapter is restrained by the said Statute of Elizabeth to binde the Successor as it hath often been judged and the reason is because it is such an Hereditament whereon no Rent may be reserved for all in the Statute that is not permitted in the Exception is restrained as to the Successor by the general purview of the said Act but yet such Grant will binde the Bishop himself although the Statute says that it shall be voyd against all intents and purposes for the makers of the said Act did intend not onely the advancement of Religion but also increase of good Hospitality and avoyding dilapidations and ruine of the Church which the Successor if the Acts of his Predecessor should binde him were not able to remedy and therefore the makers of that Act did rather regard the Successor And these words in the Act viz. Parcel of the possessions of his Archbishoprick or Bishoprick or united belonging or appertaining to the said Archbishoprick or Bishoprick may be very aptly construed That the Gift of this Office and all other such like things that are belonging to the Archbishoprick or Bishoprick for although the Bishop cannot exercise this Office himself yet hath he an inheritance in the gift and disposing thereof and so it is adjudged in Cooks 8 Rep. Earl of Rutlands Case And these words Belonging to the Archbishoprick or Bishoprick shall be expounded for Concerning the Archbishoprick or Bishoprick And therefore if a Writ of Annuity be brought against a Bishop upon a title of prescription or otherwise and Iudgment be given against him upon Verdict or confession this is restrained by this Act because the Bishop is charged with this Annuity in respect of his Bishoprick and therefore the Successor shall be charged with the arrears incurred in the life of the Predecessor 21 H. 7. 4. 48 Ed. 3.26 33 H. 6. 44. and yet is not the Annuity issuing out of the Bishoprick as appears in the 10 H. 6. 10. and 10 Ed. 4. 10. But because this does concern the Bishoprick and does tend to the diminution of the revenues and the impoverishing of the revenues this is restrained by the said Act of the first of Eliz. And therefore to answer to the Objection Wherefore such an Office should be granted to one solely I answer and it was also agreed to by all the Court That if the Office be ancient and necessary the Grant thereof with the ancient fee is no diminution of the Revenue or dispoverishing the Successor and therefore of necessity such Grants are exempted out of the general restraint of the said Act of Elizabeth For as Bracton saith Illud quod alias licitum non est necessitas facit licitum necessitas inducit privilegium quod jure privatur And if Bishops have not power to grant such Offices of service and necessity for the life of the Grantees but that their estates shall depend on incertainties as on the death or transmutation of the Bishop then no able or sufficient persons will be willing to serve them in such Offices or at least will not discharge their Office with any cheerfulness or alacrity if they may not have such estate in certain for the term of their lives as their Predecessors had but when an ancient Office is granted to one it is not of necessity to grant the same to two and therefore such Grant is not exempted out of the general restraint of the Statute no more then if the Bishop should grant an Office with the ancient fee to one and then he grants the Reversion to another this is restrained by the Statute because it is not of necessity and if the Bishop may grant such Offices to two he may grant them without any limitation of lives and by consequence ad infinitum and so if he may grant a Reversion to one so he may to others also without any limitation and by the same reason he may grant them in Tail or in Fee which is quite contrary to the intention of the said Act. And of such opinion was Popham Chief Iustice Michaelm 44 45 Eliz. in Stumblers Case and Dyer 23 Eliz. 370. where Horn Bishop of Winchester did grant to Dr. Dale during his life a Rent out of the Mannor of Waltham pro concilio impendendo the Bishop dyed and because the Rent was arrear Dr. Dale brought an Action of Debt for the arrears incurred in his life against the Executors In which two points are to be observed 1. That the Grant was not voyd against the Bishop himself The other That although the Rent was issuing out of the possessions and not parcel this was voyd by his death And Trin. 30 Eliz. Rot. 346. in this Court The Bishop of Chester after the Statute of 1 Eliz. did grant to George Boulton an Annuity of five marks per annum pro concilio impenso impendendo which was confirmed by the Dean and Chapter and then the Bishop dyed and Boulton brought a Writ of Annuity against the Successor and in his Count did aver that the Predecessors of the said Bishop had granted reasonable Fees but did not aver that this Fee had been granted before and did aver that he was homo consiliarius in lege peritus and the Opinion of the Court was against the Plaintiff But there it was resolved that although the said Bishoprick was founded but of late times to wit in the time of Hen. the eight yet a Grant of an Office of necessity to one in possession with reasonable fees the reasonableness whereof is to be decided by the Court of Iustice wherein the same doth depend is good and is restrained out of the general words of the said Act. And in our Case the avowant hath averred this Office to be an ancient Office and which hath
the Statute and therefore they are gone The reason of making of this Act was Answer because divers priviledges which they had as Bona Catalla Fellonum c. were extinct by the accession to the Crown and therefore it was necessary to revive them but if the Statute had not been made yet shall the King have all those Priviledges which were not extinct as Parks Chases Warrens Markets Fairs c. And that this priviledge is given to the King may be proved by a Proviso in the Statute whereby it is provided that all priviledges of Sanctuaries before used or claimed in houses or other places commonly called S. Johns Hold and all other Sanctuaries before used and appertaining to the said Hospitall shall be void and of none effect whereby it appears that if that Proviso had not been made the priviledge of Sanctuaries had been in the King and his Patentees in the same Mannor as had been used before the dissolution and that by force of this word Priviledge and yet this priviledge of Sanctuary does not concern the Land as discharge of payment of Tythes doth Object 3 But it may be again objected that the Statute of the 31. H. 8. hath an expresse clause for discharge of the payment of Tythes which needed not to have been if the generall words would have served Answer I answer that there were two reasons to put this Clause into the said Statute 1. To induce purchasers to buy the said Land and at a greater price 2. For the infinite manners and means of discharge which the Abbots had so that it would be very hard for Purchasers to know them and this appears in Coke Rep. 2. Bishop of Canterburies Case but in our Case the means is very well known and therefore such clause was not necessary And as to the second point I conceive that the clause for discharge of the payment of Tythes doth extend to the possession of this Pryory and yet I do agree that their Lands are given to the King not by the Statute of 31. of H. 8. but by the 32. of H. 8. And to prove this the Statute of 31. H. 8. does extend to all Abbies Pryories Hospitalls and other Religious and Ecclesiasticall houses and this Pryory was Religions and Ecclesiasticall for they vowed Obedience and Chastity and the case in the 27. H. 8. 16. in the case of Martin Dockwray where it is holden that Fryers are dead persons in the Law be they of an Abby or any other Pryory and that appeares by the Statute of 32. of H. 8. of their dissolution by which it is enacted that the Fryers shall sue and be sued by their proper names and that they shall have such capacities liberties and freedomes as were given to other Religious persons in an Aâ—â— at the first Session of this Parliament And in further proof hereof divers Rectories were appropriate to them and Tythes given to them and they enjoyed them and the Statute gives them to the King by which it does appear that they were Religious and Ecclesiasticall Object 4 But it may be likewise objected that the Statute of the 31. of H. 8. does not discharge Chanteries or Colledge lands given to King Edward the sixth of Tythes Answer I answer That the reason of that is that because Colledges although they were Ecclesiasticall yet they were not regular And Coke 2. Rep. 48. B. but the Fryers of S. John of Jerusalem were Ecclesiasticall and Regular And it is not inconvenient that the King and his Patentees should have the benefit of the clause of the Statute of 31. of H. 8. in those lands given to the King by the Statute of the 32. of H. 8. as the Statute of Acton Burnell does provide that if the Extender upon a Statute Merchant does extend the Lands too high they shall answer this to the Conusee and the Statute of 23. H. 8. does order a new form of Recognizance to be taken before any of the cheif Iustices yet the Conusee shall have the said benefit of the Statute of Acton Burnell although it was made two hundred years before the other Statute And for Authority in this point Dyer 277. The Pryor of S Johns of Jerusalem with the Fryers two or three years before the dissolution did make a Lease of a Mannor for years which Lessee did pay Tythes to the Church of Rochester proprietary and after the dissolution the King did grant the reversion of the Mannor to one Stathome and to his Heirs in such ample manner as the Pryor had the same c. the Lease does expire If he and his heirs having the Mannor in their own possession shal be discharged of Tythes or not was the question in Chancery and on consideration had of the Statute of the 31. of H. 8. cap. 13. it seemed by the Lord Keeper Sanders Southcott and Dyer that they be discharged untill they let the same out to others to Farm And Pascha 11. Jac. in the Common Pleas in the case of Weney this case did come into question and argued by Coke Warburton Winch and Nicholls and they were divided in their Opinions Saturday the sixth day of June in the ninth year of the Reign of King Charles Between Francis Townley Esquire Plaintiff Edward Sherborne Executor of Richard Mountford deceased Executor of Thomas Challoner deceased Defendant Vpon hearing and debating of the matter as well on the fifteenth as the eighteenth of June last the Court being assisted with Mr. Iustice Hutton and Mr. Iustice Jones upon the Plaintiffs Bill of Review for the reviving and reversall of a Decree made in a Cause wherein the said Richard Mountford deceased Executor of Thomas Challoner was Plaintiff against the now Plaintiff and Thomas Foster Esquire concerning the summe of one thousand seven hundred pounds raised out of the Rents and Profits of certain Lands and Tenements in Linsted Ardingley and Worth in the County of Sussex in trust for the said Thomas Challoner during his Minority and which the now Plaintiff by the Decree of this Court was to pay in case the said Foster should fail to pay the same severall matters were offered by the Plaintiffs Councell for the reversall of the said Decree as namely that the now Plaintiff was decreed to pay the summe of one thousand seven hundred pounds as raised out of the profits of the Infants Lands settled upon an account made up by the said Forster with the said Thomas Challoner the Infant after he came to age whereto the Plaintiff Townley was neither party nor privy nor ever consented nor ought to be bound thereby And secondly that the said Plaintiff is by the said Decree made lyable to the payment of all the profits raised out of the said Infants Estate whereas he never received any profits at all and although he gave some Acquittances yet the same were onely for the three first half yeares and no more and were but to ballance an account the monies disbursed amounting to as much as
years not expired at the time of her marriage she should have the Messuage then in his tenure being his Mansion-house which house now is in the tenure of the Plaintiff and an Annuity of 20 l. out of all his other Lands Tenements and Houses of the Devisor in the said Parish with a clause of distress and to detain the same until the said Annuity were payd to the said Ellinor and if Ellinor did marry he did devise all his said Lands except the said Mansion-house to the said Thomas Butler and his Children and made the said Ellinor his Executrix and dyed possessed And the said Ellinor entered claiming the Devise and the 16 of January 1606. marryed the Plaintiff and the 30 of April 1606. the Plaintiff and his Wife did agree to have the said Mansion-house and the said Annuity and Thomas Butler by their assent did enter into the residue And the 12 Jan. 1606. Elianor dyed And at our Lady-day 12 Jacob. 10 l. of the said Annuity was behinde wherefore the Plaintiff the 26 of May 12 Jacob. did enter and take certain goods for the said 10 l. and would have deteined them in the name of a Distress and the Defendants rescued them ad damnum 40 l. The Defendants pleaded Not guilty The Iury found the Lease made by the Bishop and the confirmation with the several Assignments and the Devise as in the Declaration is set forth saving the Devise to the said Thomas Butler from the day of the death of the said Ellinor which clause was not found and they found also that John Butler the 3 Novemb. 3 Jacob. dyed and that Ellinor did enter claiming by the Devise and that she married the Plaintiff and also their agreement to have the Mansion-house and Rent as a Legacy and the entry of Thomas Butler in the residue by the assent of the Executor and the death of Ellinor and that the 10 l. was behinde and that the Plaintiff took the goods and would have detained them as a Distress and that the Defendants rescued them And if the Defendants were guilty they found for the Plaintiff if not they found for the Defendant c. And I conceive Iudgment ought to be given for the Defendants For first I conceive that the Wife of John Butler had not any Rent at all out of the house in which the Distress was taken If she had any Rent yet it is determined by her death And I conceive the Case to be thus Lessee for years of two houses does devise them to his Wife for 28 years which is all the term if she live so long unmarryed and after her death to Thomas Butler and if the woman marries that she shall have one Messuage for the residue of the term and 20 l. Rent ex omnibus aliis terris suis with a clause of Distress and then Thomas Butler shall have the other Messuage The Devisor makes his Wife Executrix and dyes and the Wife enters claiming by the Devise and then marries the Plaintiff and then they agree to have the house that was devised to her after her marriage with the Rent and Thomas Butler by their assent does enter into the residue the Wife dyes and the Plaintiff distrains for Rent behinde after her death and the Defendants rescue the Distress whereupon the Plaintiff brings his Action And as to the first I conceive that the Wife can have no Rent by this Devise and that for three Reasons Because the Wife did take the entire term as Executrix and therefore she cannot have a Rent out of the same term and therefore I conceive it will not be denyed that if Lessee for years deviseth a Rent to I. S. and makes him his Executor and dyes I. S. shall have no Rent for in as much as he hath the term as Executor he shall have no Rent as Legated for it is extinct in the term and although he hath one in his own right and the other as Executor yet cannot he have both together 4 Ed. 6. B. Surrend 52. If one hath a term as Executor and purchase the Reversion the Lease is extinct And although the term in our case is devised to a stranger yet by the Law it does first vest in the Executor and the Devisee cannot have it without the delivery or consent of the Executor And if a Devisee does enter into a term or takes goods without the delivery of the Executor the Executor may have an Action of Trespass against him 20 Ed. 49. 2 H. 6. 16. 11 H. 4. 84. 37 H. 6. 30. although in the 27 of Henry the 6. 8. a. diversity is taken between a thing certain and uncertain for it is there said that if the thing devised be certain and a stranger takes it the Executor shall have an Action of Trespass but in old Nat. Bre. 87. there is no diversity So that it is clear that the term first vesteth in the Executor and so the Rent which the Executor had is extinguished by unity of possession Object And whereas it hath been objected That although the term does first vest in the Executor yet when he assents to the Devise he is then immediately in by the Devisor and therefore the Rent is not extinct Answer I answer That there the agreement does divest all the Estate that the Devisor had gained by his entry but in our case the woman hath as high and right an Estate in the Land as she hath in the Rent and although there be a possibility of severing the Land from the Rent yet that cannot revive the Rent being extinct as if one hath Land of the part of his Father and hath a Rent out of the said Land of the part of his Mother the Rent is extinct and cannot be divided although he dye without issue And that the Wife hath as high Estate in the Land as she hath in the Rent appears in Cook 6 Rep. Sanders Case where if an Executor commits waste before he assent to the Legacy an Action of waste lies against him which proves that the Executor hath the term And although the Devisee after his assent is in by relation by the Devisor yet this will not ayd the Rent no more then if a Son having Rent out of his Fathers Land and the Father dyes and the Son endows his Wife this shall not revive the Rent which was extinct before yet is the Wife in as of the Estate of her Husband and the Estate and possession of the Son is utterly defeated But admit that the Rent be not extinct yet here is no agreement to have the Rent for here are two Devises 1. Of the Land to the Wife if she continue unmarryed the remainder to Thomas Butler and the other of twenty pounds Rent to commence after her marriage wherefore the assent of the Executrix to the Devise of the Land is no execution of the Devise of the Rent Comment 5. 21. B. Welden and Elkingtons Case If a Termor deviseth a Rent or a
as of his Freehold whereupon Issue was joyned and found for the Plaintiffs and adjudged that they should have execution against Sir John Whitbrook whereupon the Sheriff was commanded to deliver the said lands to the Plaintiffs in execution and the sixteenth of June 12 Jacob. the said Tenements were found to the value of eighty shillings and were delivered to the said Executors in execution The twenty seventh of March 11 Jacob. Hanging the Writ of Scire facias the said Sir John Whitbrook did demise to the Defendant one Messuage and ten acres of Meadow parcell of the premisses Habendum from the said twenty seventh day for the term of three years by force whereof he entred and was possessed The sixteenth of June 12 Jacob. the said Executors did enter into the Tenements in the Inquisition mentioned whereof the said Messuage five acres of Land and ten of Meadow are parcell and did out the Defendant The one and thirtieth of August 13 Jacob. Robert Faldoe made the Lease to the Plaintiff and they found the Ejectment and prayed the advice of the Court. And I conceive Iudgment ought to be given against the Plaintiff For that a Tenant in Taile cannot charge the Land no more then he can alien 3 Ed. 3. 46. so in the 18 Ed. 4. 5. 21. If Tenant in Taile do sell the Trees and dye the Vendee cannot have them and the 17 Ass 21. Tenant in Tail acknowledgeth a Statute and dies the Issue enters and the Conusee does sue execution and enters and the Issue brings an Assise and recovers because this is a Disseisin to him and 11 H. 7. 21. 31 Ed. 3. 22. 14 Ass 3. Tenant in Tail grants a Rent and dies and the Issue enfeoffs a stranger adjudged that he shall hold the Land discharged for it was discharged by the entry of the Issue and 26 Ass 38. If Tenant in Tail doth charge the Land and dye and the Issue enters and pâ—yes the Rent and then after confirms the Rent this is good But in Brook Grants 73. contrary for the charge was avoided by the entry of the Issue But admit that this Recognizance shall bind the Issue in Tail yet it shall not bind the Termer but he shall avoid it 1 H 7. 9 7 H. 7. 11. and in the 30 Assise 10. the Tenant pleads recovery by Action tryed against a stranger and did aver the Estate of the Ancestor of the Demandant to be between his Title and the Recovery the Demandant said that the stranger was enfeoffed with Warranty and did not plead this and so did Fauxesie and Iudgment was awarded for him And although that this Lease was made after the Teste of the Scieri facias it is not materiall because the Lessor had good power to make a Lease and the Land was not subject to the execution and therefore the Lease here is good and cannot be avoided but only by the default of the Lessor in not pleading the Estate-tail and that is especially aided by the Statute because the Statute does aid the Lessee against such fâ—igned Recoveries against the Lessor and it is no Recovery untill the Iudgment had at which time the Lessee had a good Lease not subject to the execution 21. H. 6. 13. 14. He who comes to the Reversion hanging the Praecipe quod reddat against the Tenant for life shall be received by the Statute of Westm 2. cap. 3. and 16 H 7. 5. In a Writ of Entry or Disseisin he in the remaiâ—der does pray to be received the Demandant traverseth that he hath nothing in Reversion at the time of the Writ purchased and could not for if he purchased the Remainder hanging the Writ he shall be received And Hill 14 Jacob. All the Court did agree Judgment that the Lessee for the Lease made after the Verdict against the Issue in Tail could not falsifie wherefore Iudgment was given for the Plaintiff Penson against Mootham IN an Action of Covenant for that by Indenture Tripartite dated the fifth Decemb. 12. Jacob. It was between Abraham Baker by the name of Abraham Baker Owner of the moyety of a Ship called the Grissell of L. and of the Ship called the Peregrine of L. and of a Pinnace called the Hopewell of L. on the first part and the Plaintiff by the name of H. P. Owâ—er of the other moyety of the said Ships and Pinnace on the second part and the Defendant by the name of Ja. Mortham Nautestrategi dicti Itineris Anglice generall of the said Voyage N. N. B. W. and D. E. by the names of N.G. Naute magister dictae navis vocat le Peregrine B. W. Naute magister dict navis vocat the Grissell and D. E. Naute Magister of the said Pinnace and severall persons named in a Schedule annexed to the said Indenture on the third part It is testified and doth appeare that the said Owners had furnished and set forth and the said Victualer had victualed the said Ships as well for Trade as for Discovery and had delivered them to the said Generall Masters and Officers pro itinere faciend in such manner and to such an Island in the West-Indies or otherwise as it should be most profitable to the said parties at the discretion of the said Generalls and according to certain Articles of the Commissioners bearing date with the said Indenture and after their Voyage to return to the Port of London And that the said Generalls and each of the said Masters and Officers severally for each ones proper and severall part and not the one for the other did Covenant for themselves their Executors and Administrators with the said Owners severally and their severall Executors c. in manner c. and that they the said Generalls or the severall Masters and Officers their Executors or Assignes at any time during the said Voyage should go beyond the Cape of Good hope nor should do or commit any spoyle or losse to any of the Subjects of our Lord the King nor to any other person or persons being subject or in subjection to any Prince or Principality being in league or amity with our King nor shall do any thing whereby any detriment prejudice trouble or damage may come to the said Ships or Pinnace or any of them or to the said Owners or any of them respectively Breach 1 And that although the Plaintiff had performed all c. yet the said D.E. and the Commissioners aforesaid in the said Ship called the Hope-well during the said Voyage to wit the eighth day of March upon the high Sea neer the Isle of Saint Jago by force and armes did take and spoyle one Spanish Frigot laden with Rice c. which Sip and Goods were the Ship and Goods of divers persons who were Subjects to the King of Spaine the which King then was and yet is in amity and league with the King and the Defendant and the other Commissioners comming to the said Island did divide the said Goods amongst
Estates yet in Wills the intent of the Devisor is sufficient either to limit the Estate or to describe the person that shall have it And therefore if Land be given to one in perpetuum if it be by Grant or Feoffment yet there passeth but an Estate for life but if it be given by Will it is an Estate in Fee and 4 Ed. 6. Estates 78. If one deviseth his Land to another paying 10 l. to his Executors or any other person the Devisee hath an Estate in Fee so if one deviseth his Land to give or dispose of or sell at his will this is a Fee-simple 19 H. 8. 96. 7 Ed. 6. Devise 38. And the reason in all these cases is because that by these words the intent of the Devisor doth appear that a Fee shall pass and therefore the defect of words shall not defeat his intent And as the intent is sufficient without apt words to make an Estate so is it also to describe the person who shall take the Devise although he be not formally named according to the precise rule in Grants as in 21 R. 2. Devise 17. where one devised Land to one for life the remainder to another for life the remainder to the Church of St. Andrews in Holborn and it was adjudged that after the death of the Devisees for life the Parson of the Church shall have the Land for in as much as the Church was not capable it shall be taken that the intent of the Devisor was that the Parson who is as it were the Father of the Church and so the Head of it should have the Estate And in the 13 H. 7. 17. In every Devise the intent of the Devisor shall be taken for if a man deviseth all his goods to his Wife and that after his decease his Son and Heir shall have his House although that no Devise of the House be made to the Wife by express words but by implication because the Heir is not to have the House during the Wifes life yet because the intent of the Devisor was that the Son should not have it during the life of his Wife she shall have the House for her life To which all agreed Then in our case 1. The Devisor willeth that a Chaplain shall celebrate for his Soul and that he shall have eight Marks out of his Tenements yearly for his stipend but if he had stayed there the Devise should have been voyd for the Chaplain is not such a person as may take these eight Marks as a Rent and therefore he goes further and first he limits what service the Preist shall do and this he appoints to be done by the disposition of the Parson 2. He doth dispose of the residue of the profits of the Tenement for such a time viz. until R. shall be 24 years of age and be a Priest and doth devise that he shall be preferred to the Chantery before any other if he will accept it and if not that he shall have nothing 3. He makes provision for the perpetual continuance of the Chaplain in these words scil That the Parson and four of the best of the Parishioners shall present and finde a Chaplain to perform the said Chantery for ever de tenementis meis superius non legat which is the said Tenement out of which the said eight Marks are limited to be payd 4. He doth inflict a penalty upon the Parson if the Chantery should be voyd scil That the other Land devised by him to the Parson shall go to the Wardens of L. Bridg for the reparation thereof 5. He makes a perpetual disposition for the residue of the profits of the Tenement viz. That they shall be put into a Chest under the custody of the Parson and four of the Parishioners to buy ornaments and Books for the Church And these parts of the Will being well considered as I conceive it will be clear that the intent of the Devisor was that the Parson should have this Tenement for here the main scope of his Will is that a Chaplain shall be maintained perpetually and that he shall have eight Marks stipend out of that Tenement and that it shall be provided and found by the Parson and four of the Parishioners and that the residue of the profits shall be bestowed by them to buy ornaments and Books for the Church so that a perpetual charge is imposed upon the Parson scil to finde the Priest and to buy ornaments c. and this charge is to be defrayed with the profits of the Tenement and that can be done by none but by him that shall be owner of the Tenement and therefore it follows that the Parson shall have the Tenement And that such implication in a Will is sufficient to make an Estate is proved by the 15 H. 7. 126. If one devises his Land to be sold for payment of his Debts the Executor shall sell the Land for because the charge to pay Debts lies upon the Executors his intent shall be taken to have them sell the Land and 22 and 23 Elizab. Dyer 171. A man seised in Fee of divers Mannors doth devise them to his Sister in Fee except my Mannor of D. which I do appoint to pay my Debts and makes two Executors and dyes and one Executor dyes and the other sells thâ— Mannor and adjudged good for so his intent shall be taken and not to relinquish it to his Sister and 19 H. 6. 24 and 25. and 1 Edw. 6. Devise 36. If one devise that his Executor shall sell his Land this is no devise of the Land to them but an authority for they may perform the Devisor to sell the Land although they have no Estate therein and the Vendee shall be in by the Devisor but if one devise that his Executors shall grant a Rent-charge out of his Land or that they shall give the Land in Fee or in Tayl to I. S. this is an implyed Devise to them for otherwise they cannot perform the intent of the Devisor Trin. 9 Eliz. 516. and so in the 40 Assis 26. One did devise his Land in L. to A. and his Heirs to finde twelve Marks for two Chaplains and grants that the Parson and the Parish may distrein for this if it be behinde and there it is debated whether the King shall have the twelve Marks or not and it is agreed there that the Chaplains have no Estate in it because they are removable at the will of A. but because the Distress is given to the Parson who is perpetual it was adjudged that the King shall have the twelve Marks whereupon I do observe that by this Distress limited to the Parson and the Parishioners the twelve Marks were vested as a Rent in the Parson and so made it a Mortmain Object But it may be objected That the last clause in the Will for the disposing of the residue of the profits does go onely to the Land devised to Wardens of the Bridg. Answer But this
Leases of the Recusant but the woman here being married hath no Lands or Goods and therefore the King cannot have any thing and the Goods or Lands of her Husband cannot be taken for his wifes offence she being convicted by Indictment only to which the husband is no party Object But it may be objected that the wife may perhaps survive the husband and then she may have Goods and Lands and the King may seise them I answer that first it may be also that the husband may survive and then the King shall never have any thing Answer as it is resolved in Dr. Fosters Case 2. This Objection is upon two possibilities 1. That the husband may first dye 2. That the wife then shall have Lands and Goods And I have alwaies taken it for a Rule that a possibility shall never take away a present Action or Suit as is proved by divers Cases as in 5. Rep. Harisons Case and 9. Rep. fol. 108. 109. And as it is said in Elmers Case 5. Rep. that two possibilities cannot maintain hospitality or repair a Churche so I say in this case that one such possibility to recover this penalty for the King cannot hinder the Informer of his Suit nor oppose the good reformation of Recusants intended by the Statute for then all marryed women addicted to Popery will be Recusants upon confidence that if they be once convicted by Indictment the which they themselves may procure to be done then they shall not be subject to any penalty during the lives of their husbands who peradventure may survive them and as it was well observed in Dr. Fosters Case that married women are the most dangerous Recusants because that they have the education of their Children and the government of their Servants But it may be objected Object that if the Informer may sue and recover against the husband and wife then if the wife does survive the King shall have these Lands and goods according to the 28 Eliz. or may sue the husband and wife according to the 35 Eliz. for these penalties and so shall be two waies punished for the same offence No such inconvenience can happen Answer for as it is resolved in Dr. Fosters Case the recovery of the Informer being legall shall bar the King as in the 19 Ed. 2. where the Testator was bound in a Recognizance for performing of Covenants this was no bar in debt upon an Obligation but that the Plaintiff may recover and if after such recovery the Statute be forfeited and execution thereupon the Executor shall have an Audita Querela for that he had lawfully administred the goods before for payment of the Bonds And after viz. Mich. 17 Jac. I moved the Court that the Plea of the Defendants was insufficient for that the Statute did ordain that upon every Indictment of Recusancy proclamation should be made and that the body of the Offender should be rendred to the Sheriff of the County before the next Assises or Gaol-delivery and if such Offender so proclaimed does not appear but makes default that he shall be convicted c. And the Defendants have pleaded that Proclamation was made that the body of the said Katherine should be rendred at the next Assises or Gaol-delivery c. and therefore she is not convict at all because she was not proclaimed according to the Statute for this Proclamation differs in two materiall circumstances from the form prescribed by the Statute first in omission of the Sheriff to whom the body is to be rendred 2. In the time for the Statute limits it to be done before the next Assises c. but this Proclamation gives a larger time scil at the Assises Whereupon all the Court agreed that the Plea was insufficient for the causes aforesaid and that now the wife was not convicted by proclamation Wherefore Iudgment Judgment was given for the King and the Informer John Mitton Administrator of George Mitton of Goods not Administred by Alice Mitton against John By. IN an Action of Debt for twenty five pounds for that William Marquess of Winchester the twentieth of October 30 Eliz by Indenture did devise to John By the Father of the Defendant three parts of the Mannor of Newnham in the County of Southampton excepting all Fines Reliefs Amerciaments Courts Woods Copies Fishings and Royalties Habendum from Michaelmas next for one and twenty years rendring six shillings ten pence Rent at the Annunciation and Michaelmas The twentieth of January 1. Jac. John By the Father made his Will and made the Defendant his Executor and died possessed The fourteenth of Novemb. 2 Jacob. the Defendant granted the Term to the Intestate The sixteenth of Novemb. 2 Jac. The Intestate did grant all the Term by Indenture to the Defendant rendring fifty nine pounds Rent at the Annunciation and Michaelmas whereby be entred and had possession of the Land and twenty five pounds of the said Rent for half a year ending at Michaelmas 15 Jacob. was behinde to the Plaintiff after the death of the Intestate which yet the Defendant doth not pay ad damnum c. The Defendant says that the Intestate the twenty sixth of June 5 Jac. did release by Deed to the Defendant all Actions Suits Debts Duties from the begining of the world until the day of the date of the said writing Whereupon the Plaintiff demurred in Law And I conceive that Judgment ought to be given against the Plaintiff For that in Littleton 118. If one doth release to another all Demands this is the best Release that may be and shall enure to the most advantage of him to whom it is made For by such Release all Actions Reals and Personals and Appeals and Executions are gone and extinct and if a man hath title to enter into any Land by such Release his title is gone and 20 Assis 5. where in an Assise for Rent a Release of all Demands was pleaded and the common Opinion was that it was good wherefore the Plaintiff was non-suited and 5 Edw. 4.42 by Danby A Release of all Demands by a Lord to his Tenant is a good bar and extinguishment of his Seigniory for although no Rent was behinde at the making of the Release yet is the Rent always in Demand and 6 H. 7. 15. If the King releaseth all Demands yet as to him the Inheritance shall not be included But in case of Rent or right of Entry by a common person and every thing therein implyed is gone by such Release And 14 H. 8. 9. by Pollard By Release of all Demands the Rent is extinct for Rent is to be had by Demand and if one doth determine the means he hath to come by a thing he doth determine the thing it self And Litt. 118. If a man hath a rent-Rent-service or Rent-charge or Common of Pasture by such Release of all Demands all is gone from the Land from whence the Service or Rent is issuing or the Common of Pasture But if one lets Land to another
him and his heirs for ever if B. shall have issue of his body and if he die without heirs of his body that the Land shall revert to the Donor and his heirs B. had issue which died without issue and it was adjudged that B. had but an Estate in tail and because he died without heirs of his body it was adjudged that the Donor should recover against the collaterall heire of B. And if the Law be so in Deeds or Grants executed in the life of the Donor a fortiori in a Devise which is to be taken more favourably then an estate made by Deed and therefore it is sufficient in a Devise to have the intention of the Devisor understood either to make an estate in fee or in tail although proper words to make such an estate be not used and the intent of the Devisor cannot be more manifest to have an estate in tail then in this case As to the second Point the question will be whether the younger Son hath an estate in Tail or in Fee determinable by this limitation and it seemed to them that he shall have but an Estate in tail In which the question is to which estate these words of limitation to wit living the elder Son shall be referred viz. Whether to the Estate made to the younger Son or to the Estate given to the elder for if they be referred to the Estate made to the younger there is no question but these words do abridge restrain the estate but if to the elder then they make no restraint or restriction as to the estate of the younger Son but onely limit the remainder to the elder Son on this contingency only viz. If he be alive at the time of the death of the youngest Son without issue And to prove that these words shall be referred to the estate devised to the elder brother They said That if the land had been devised to the younger Son and the heirs of his body and if he dyed without issue living the elder that the elder should have the estate to him and his heirs it is clear that the younger hath an absolute estate tail and that then the remainder to the elder shall be on this contingency viz. If he be living when the younger dies without issue And so is Frenchmans Case 1 2. Eliz. who demised land to his wife for life the remainder to Charles Frenchman and the heirs males of his body and if he died without heirs males of his body the remainder to Arthur Frenchman and the heires males of his body Charles had issue a Daughter and died without issue male and it was adjudged that the Daughter should not have the land for this contingency does not alter the Estatetail that was first limited to Charles and although the Devise in the case at Bar be to the youngest Son and his Heirs without any limitation of his body yet the limitation afterwards to wit if he die without issue does explain well enough that the heires of his body are intended and then the subsequent words living the Eldest Son cannot alter the estate first given to the younger Son And Hil. 40. Eliz. in the Kings Bench by Walmesly If one deviseth land to his Son and his heirs and further deviseth that if he die without issue that the land shall be sold yet the Son shall have an estate in fee and not in tail but otherwise if he devised that if he died without issue that the lands should remain over for in the first case he disposeth of no more of the estate by the last words then he did at the first but in the last case he disposeth of the estate it self in remainder And this was agreed by Owen 18 19. Eliz. Rot. 354. and 15. 16. Eliz. Rot. 330. where the case was That one Edward Clark being seised in fee of two houses had issue Henry and two Daughters Alice and Thomasin Henry dyed before the two daughters living the Father the Father devised one house to his daughter Alice and her heirs for ever and the other to Thomasin who was at that time but eight years of age and her heirs for ever and if she died before the age of sixteen years Alice then living Alice should have it to her and heirs and if Alice should die having no issue living Thomasin Thomasin should have the house of Alice to her and her heirs and if both of them died without issue he devised the two houses to the two Daughters of his Son Henry and their heirs and if they died without issue he devised the remainder to a stranger Proviso That if Alice should marry I. S. that Thomasin should have her part to her and her heirs and if Thomasin should dye having no Child that the daughters of Henry should have all and if they died having no Child the remainder to a stranger as aforesaid The Devisor dies then Alice marries N. but not I. S. and enters into her house Thomasin after sixteen years of age dies without issue And if Alice or the daughters of Henry should have the estate of Thomasin was the question And it was holden by three Iustices that the daughters of Henry should have it because that Thomasin did not die within the age of sixteen years and that it being objected that there was no estate tail to any of the daughters but a fee simple conditionall upon a contingent it was at last adjudged 14. Eliz. Rot. 340. that they were Tenants in tail by this Devise in Mich. 37 38. Eliz. 42. Mich. 14 15. Eliz. And Michaelmas 18. Jacobi Judgment This Case was argued by Montague cheif Iustice Doderidge Haughton and Chamberlain who all agreed that by this Devise the youngest Son had not an Estate-tail but a limited see so that by his dying without issue living the elder Son his estate was quite determined and all except Doderidge agreed that the Recovery could not hurt the future Devise But Doderidge was much against this opinion by reason of great mischeif that might ensue by making of Perpetuities in Devises and cited Archers Case and Capels Case but notwithstanding Iudgment was affirmed as aforesaid De Termin Trinitat 18 Jacob. Rot. 1198. Dawtree against Dee and others IN an Action on the Case wherein the Plaintiff Declared That he the fifth of July 16 Jacobi was and is seised in Fee of a Capital Messuage called Moor-place with the appurtenances and of 600 Acres of Land meadow and pasture in Petworth with the said Messuage used of the annual value of 100 l. which Messuage he and those whose Estate he hath in the said Messuage and Tenements therein Farmors and Tenants have time out of minde used to keep good hospitality for the relieving of the Poor in Petworth aforesaid and that in the Church of Petworth aforesaid on the said fifth of July and also time out of minde there hath been and is a little Chancel on the North part of
the day is excluded by this word Quousque Crook contra Who said that the Declaration was insufficient for it ought to have been Tam pro Domino Rege quam pro seipso because here is a contempt to the King But upon full debate of the Case and upon shewing a President to the Court which was Plt. Jacobi Rot. 308. in the Common Pleas between King and Monlenax where the Declaration was for the party onely and all the Prothonotaries did certifie the Court that the greater part of Presidents of such Actions brought in the Common Pleas were for the party only and not Tam pro Domino Rege quam seipso whereupon it was adjudged that it was good either way Judicium and Iudgment was given for the Plaintiff And note that in this case the Iudgment was Quod Defendans sit in misericordia and not Quod capiatur vide 27. Assise 11. 42. Assise 17. Dyer 238. 40 41. Eliz. New Book of Entries 44 45. Bassett against Jefiock and Johnson IN an Ejectione the Iury gave a speciall Verdict to this effect That Queen Elizabeth was seised in fee in Jure coronae of the Mannor of Watton in the County of York and that King James the 15. Martii 2. Jac. did grant the same to William Brown and Robert Knight and their Heirs who the twenty seventh of April 3. Jac. did bargaine and sell the same to Michael Feilding and his heirs who entred and died seised and after whose death the same descended to Basill Feilding as his Brother who made a Lease to the Plaintiff Bridgman It seemeth to me that the Plaintiff hath made a good Title But it was objected that there was no good Title for that it is not found that the Queen died seised or that the Lands descended to the King But it was answered that when the Queen was seised in Fee in Jure Coronae that shall be intended to continue untill the contrary be shewed for when an Estate of Inheritance is once alledged it shall be intended still to continue till the contrary be shewn Plow Com. 193. 43 1. and 202. Judicium And afterwards viz. 19. Jacobi Iudgment was given for the Plaintiff without any argument at the Bench. Trin. 19. Jac. Samborne against Harilo IN an Action of Trespasse for that the Defendant 10. Octob. 44. Eliz the Plaintiffs free Warren at Mouldford in certain places there called Harecombe Harcombe Coppice and the Down did break and enter and did therein hunt without the license of the Plaintiff and three Hares and three hundred Conies did take and carry away Continuando as to the said Hunting and taking and carrying away the said Hares and Conies from the said tenth day of October to the first of November And further declared that the tenth of April 1. Jac. the Defendant the said Warren in the said places did break and enter and therein without the license of the Plaintiff did hunt and twenty Hares did take and carry away continuing the said hunting untill the first of March next after c. And further declared that the tenth of April 2. Jac. the said Defendant the said Warren in the said places did break and enter and therein without the license of the Plaintiff did hunt and forty Hares and four hundred Conies did take and carry away continuing the said hunting untill the first of March following contra pacem c. ad damnum c. The Defendant as to the Vi armis and to the first Trespasse except the entring and hunting in the said place called the Down and the taking and carrying away the three hundred Conies pleaded not guilty And as to the entry hunting and carrying away the said Conies he saith that the said place called the Down is and hath been time out of mind Communis fundus containing by estimation two hundred acres of Land and Pasture and that before the said tenth day of September and before the said Trespasse and at the said time the Defendant was seised of a Messuage and six Yard Land containing a hundred and sixty acres called the Mannor of Southbery in Mulford aforesaid and that the Defendant and all those whose estate he hath in the premisses time out of mind have had Common of Pasture in the said Down for 200. and 40. Sheep Levant and Couchant upon the said Messuage and six Yard Land and that the Defendant and all those whose Estate c. have used for preservation of the said Common as often as the said Common hath been oppressed and troubled with Conies have used of custome to have liberty to hunt and to take the Conies wherefore the Defendant the aforesaid time of the aforesaid first Trespasse and for preservation of the said Common from such oppression and diminution aforesaid into the said Down did enter and there hunted and the said Conies did take and carry away according to the said custome and continuing the said hunting all the said time And as to the second Trespasse besides the entry and hunting in the said places called Harecombe Harecombe Coppice and the Down and the taking and carrying away two hundred Conies he pleaded not guilty And as to the entry and hunting in the said places c. he saith that the said places called Harecombe and Harecombe Coppice are Woodland containing by estimation ten acres and that he was seised in Fee of the said Messuage and six Yard Land and made the same prescription as aforesaid for all his Horses Cowes Heifers Bullocks and two hundred and forty Sheep levant and couchant upon the said Tenements viz. for the Horses Cowes c. at the Feast of S. George and from that time untill the Corne growing in the Feilds of Moulford were carried away and after the Corne carried away for the Sheep untill the fourth of March next after and made the former prescription for the Sheep in the Down And the same prescription also for hunting and taking away the Conies as abovesaid and so did justifie the taking of the said two hundred Conies And as to the third Trespasse besides the entry and hunting in the said places and the taking and carrying away of the said four hundred Conies he pleaded not guilty and as to this plea he made the same prescription as before upon which plea the Plaintiff demurred in Law And if this matter pleaded in Bar was sufficient to bar the plaintiff of his Action was the question And it seemeth to me that there is nothing in the Defendants plea to hinder the Plaintiff from having Iudgment And the better to argue upon this matter I will first endeavour to shew what interest a Commoner hath in the Soile and what things he may do upon the Soile for preservation of the said Common 2. Whether this be a good usage and custome to enable the Defendant to hunt and kill Conies in the Plaintiffs free Warren And as to the first I conceive that he that hath Common in
matters being of substance ought to be observed as in Trinit 37 Eliz. in this Court between Worsly and Charnock a Statute acknowledged which had but one piece of the Seal adjudged voyd and the same adjudged in the Case of Ascue and Hollingworth Trin. 37 Eliz. Rot. 343. and this is upon very good reason for when the King hath committed the Custody of the Seal to two scil to the Major and the Clerk and to each a part the part committed to one is not sufficient And all the other aforesaid substantial parts are material parts of the said Statute except the writing of the Statute with the proper hand of the Clerk Then the Question in this Case is no more then if there be a sufficient time limited for the payment and such a time as the Major may certifie to be incurred in case it be so required And I conceive there is for when he acknowledgeth the Debt to be due and no time is expressed the Law appoints the payment to be immediately and that is such a time as the Major by his Certificate may take notice of 44 Ed. 3. 9. a. If a Bond be made and no day of payment therein limited it is due presently 4 Ed. 4 49. B. 9 Ed. 4. 22. but he shall not recover damages without demand 14 H. 8. 29. 6. If one be bound in a Bond and no day of payment be limited and then the Obligor is bound in another Obligation to pay the mony at a day certain if the mony be not payd at the day he forfeits his second Bond and yet by the first Bond it was not payable before request But that request is because as I conceive that he shall recover no damages before request but the mony is due presently and when the Law appoints a time certain that is as good as if it had been exprest in the Bond it self As in the Statute of Westm 1. cap. 38. where it is ordained that in a Writ of Mortdancester the Demandant shall count of the seisin of his Ancestor from the time of the Coronation of King Henry the third Yet if an Infant brings a Mortdancester of the seisin of his Father or Mother he need not alledg this in his Writ because it appears to the Court. 16 Ed. 4.47 In an Action on the Case for disturbing the Plaintiff of holding a Fair and the Plaintiff prescribed to have a Fair in C. for three days scil ab hora nona in vigilia sancti Petri ad vincul and for two days and a half next following and this was held to be good because two days and two half days make 3 days And if the Statute had been in the hundred hour or the thousand hour after the making thereof here is no day limited and yet I conceive that no body will doubt but that this is a good Statute Cook Rep. Signior Montjoyes Case If one having authority to make Leases reserving the usual Rent does let Land whereof the ancient Rent was a Quarter of Corn reserving eight Bushels this is a good Lease for the Law respecteth not the forms of words but the substance and effect of the matter Object But it may be objected That if the Statute doth not mention a day of payment it is to no purpose to acknowledg such a Statute for if the mony be payable presently the Debtor may pay the mony and spare the making of the Statute I answer Respons that the Statute intends onely to provide assurance to the Merchant for his debt and not to give any day of payment to the Debtor but to leave that to the agreement of the parties and when the Merchant hath delivered his Goods there is reason he should have present security and not present payment for them unless it be otherwise agreed amongst themselves but if they agree upon a day of payment that may be put into the Statute or else to have a Defeasance but this is not of necessity There is a Rule in Law that every Lease ought to have a certain time of beginning and also of ending yet if one makes a Lease for twenty years and does not say when it shall commence this is a good Lease for the Law will suppose the Lease to begin presently And it is ordered by the Statute that the Writing obligatory shall be written with the proper hand of the Clark yet it is a good Statute although it be written by his Servant but otherwise in case of Authority to revoke as in Coke Rep. Scroopes case he who hath power under his hand to revoke cannot do it otherwise Mich. 18. Jac. Thair against Thair and Trin. 42. Eliz. Birde against Stride Furthermore these Statutes being taken for assurance of Merchants shall be expounded favourably for them so far as the variance if any be of the Letter shall not impeach it 5. Rep. 77. a 21. Edw. 3. 18. 10 Rep. 67. 27 H. 8. 10. 4 Rep. Vernons case And the form of the Statutes in Glocester Hereford and Bristoll and many other Towns is to mention no day of payment but some are made Sine ulteria dilatione some Immediate but the most usuall do run as in our case and the formes of Presidents are much to be regarded As in the Comment 163. Frogmorton against Tracy Two Iustices held that an Avowry by the Defendant was not good without averment as ought to be in every Plea but when all the Presidents were shewn without averment they were satisfied And the same case is put in the Comment 320. B. for a Rule that the Records of every Court are the most effectuall proofs of the Law of things treated in that Court and in the 39. H. 6. 30. In a Writ of Mesne the Tenant shewed the Tenure only between the Mesne and the Tenant and not the Tenancy between the Mesne and the Lord Paramount wherefore the Iudges held the Plea naught but when they had seen the Book of Presidents wherein it was usuall to omit this they changed their opinions and said that they would not alter the Presidents And in the 5. Ed. 4.19 B. Babintons case The custome and course in a Court and the Presidents in a Court do make a Law Vide Rawlins case Coke Rep. 14. And the Statute provides only for Merchants for their debts and yet none will deny that if such a Statute be acknowledged to one who is not a Merchant or never used Merchandizes yet it is good And Trin. 22. Judicium Jac. This case was argued by the Iudges on the Bench and Jones held the Statute good but Hutton contra and Winch and Hubbert held the Statute good Wherefore Iudgment was given Quod querens nihil Capiat per breve Garth against Ersfeild Knight in Cancellar In a Scire facias to have Execution of a Recognizance of eight hundred pounds acknowledged in the Chancery by Sir Thomas Ersfeild the Father of the Defendant the third of May 14. Jac. THE CASE SIr Thomas Ersfeild the
against Humphrey Bigges And Manwood fol. 1. A Forest is a certain Territory of Ground priviledged for wild Beasts and Fowles of the Forest to rest and abide in the safe protection of the King for his Princely delight and pleasure and doth consist of four things 1. Vert. 2. Venison 3. Particular Laws and Priviledges 4. Certain Officers But by this pretence of the Defendant the Forest of the King is priviledged for wild Beasts to rest in protection of the King but they are subject to being destroyed by the Defendant for by such pretence none can enter there but he or his Keepers And I conceive that no body can pretend to have any profit or pleasure in the Forest which tends to the destruction of the Forest and that is the reason that one cannot prescribe to have Common in a Forest for Sheep Geese Goats or Hoggs for to suffer them to Common there is Ad magnum nocumentum ferarum forestae and such a prescription the Defendant maketh which is not only Ad magnum nocumentum but to the utter destruction of the Forest And if it be objected that this Park claimed by the Defendant is but a little part of the Forest this is no answer for as in the Case of a Common no man may prescribe to have Sheep c. in the Forest so cannot he in any part of the Forest and if the Defendant may prescribe to have such an irregular Park in part of the Forest so may others claim such like prescriptions in other parts of the Forest and so the King shall lose all the Franchise of his Forest and the Defendant may make his Fence or Ditch so low without-side and so high within that the Kings Deer cannot get out again when they are come in and so this Park shall be in the nature of a Trap to catch the Kings Deer And further he that will prescribe to have any common profit or pleasure in the Freehold or Inheritance of another ought to make his prescription in such manner so that he must leave the residue of the profits to the Owner and cannot utterly exclude the Owner and therefore if one doth prescribe to have all the Herbage Pannage and Profits of the Land of I. S. no man can conceive that this prescription is good Neither can a Commoner prescribe that the Lord of the Soile cannot put in any Cattell into the Land But in our case the very Franchise of the Kings Forest doth consist of Vert Venison Lands and Officers of the Forest for the King may have a Forest although he hath no Land there And in the Commentaries 332. If a Mannor within the Forest of Waltham do escheat to the King and the King grants the Mannor to one in fee yet shall not he have the liberty of the Forest And the same Law is where the King grants all the Land which he hath in the Forest But notwithstanding I agree that one may have a Park within a Forest by prescription or by grant but then the same ought to be kept so inclosed that the Beasts of the Forest cannot enter into the Park which if not done it is a forfeiture of the liberty of the Park and so it is if he have a Salterie or Deer-leap for the nature of a Park is to be inclosed and in the 10. H. 7. 6. it is said that a Park consists of Soile Inclosure and Game and in the 15. Ed. 3. closure and game And in the 15 Edw. the 3. Thomas Earl of Lancaster Lord of a Forest did grant leave to one John Harrington to make a Park within the said Forest and there it is adjudged that if the Grantee does so sleightly inclose the Park so that the Forest-beasts may get in there that it is a forfeiture and the Lord of the Forest may enter and take the Deer But by the pretence of the Defendant the King shall not have so much power in this Land being in the midst of the Forest as he hath in the Lands of any of his Subjects which do lie without the Forest for if Forest Beasts stray or wander into the Land of a Subject out of the Forest the Foresters may enter into this Land and rechase them into the Forest again Crocker against Kelsey HVsband and Wife Tenants in Tail of the Gift of the Husband the remainder to the Husband in fee The Husband dyes the Son and Heir of the Husband and Wife does levy a Fine with proclamations to the use of him and his Heirs the Wife does let a Lease of the Land for 21 years and dyes the Son deviseth his Land to E and his Heirs and dyes And Whether this Lease made by the Wife were good to binde the Devisee was the Question And I conceive that the Lease is good For although that by the Fine the Estate-tail is barred as to the Conusor and all his issues yet does the Wife remain Tenant in Tail as before and therefore this Lease made by her is a good Estate derived out of her Estate-tail and shall binde all except the issues in Tail who may claim per formam Doni And so is it in the 33 H. 8. Dyer 51. B. Tenant in Tail before the Statute of the 27 H. 8. does make a Feoffment to the use of himself in fee and then he and his Feoffees make a Lease for years rendering Rent and then is the Statute made the Tenant in Tail dyes and then the issue aliens by Fine before any entry or receit of the Rent and holden by all the Iustices except Sanders that the Alienee shall not avoyd this but otherwise of a Rent granted And suppose the Fine had not been levyed by the issue he shall not avoyd the Lease without entry and if he had aliened after the death of his Mother and before entry the Alienee should never avoyd the Lease And in the 29 Assis 51. and the Comment 557. Tenant in Tail acknowledgeth a Statute-Merchant the issue is attaint of Felony and pardoned the Tenant in Tail dyes the issue enters and the Conusee sues out Execution And because the issue was disabled to inherit the Estate-tail therefore he had it as an Occupant and so it was subject to the Execution And although the remainder in Fee does pass by way of interest by the Fine yet that cannot come in possession so long as any issue in Tail is living and therefore if a stranger had entered after the death of the Wife the Son could not have had a Formedon in the remainder for that must suppose the death of the Donees in Tail without issue the which cannot be in our Case Comment 560. Austens Case Sir Thomas Wyat Tenant in Tail of the Gift of the King made a Lease for years rendering Rent and dyed Sir Thomas his son accepts the Rent and after was attaint of Treason and executed having issue and adjudged that the King should have the Land in point of Reverter discharged of the Lease
But in our Case the act being done by the issue in Tail himself shall not enable him to make voyd the Lease made by his Mother no more then if a Tenant in Tail makes a Lease for years and levies a Fine with proclamations to the Donor and dyes having issue yet the Donor shall not avoyd the Lease Vid. Lord Aberganies Case Cook 6 Rep. And although that the Wife were a Ioyntress within the Statute of 11 H. 7. yet is this Lease clearly out of the Statute because that it is no bar or discontinuance to the Estate in Tail as it is in Sir George Browns Case Cook 3 Rep. for this Lease was voydable by the issue unless he had bar'd himself by his own Fine And I conceive this Lease is also good against the Devisee for when a Tenant in Tail makes a Lease for years or grants a Rent common c. or acknowledgeth a Statute or doth in some other manner charge the Land this is a good Lease Grant or Charge to binde the Tenant in Tail and all other except the issues in Tail and those in Reversion And the reason of this is because the Statute of Westminster 2. cap. 1. that was made to avoyd such charges does not ayd any persons except the issues in Tail and those in Remainder and Reversion And therefore if Tenant in Tail grant a Rent or acknowledg a Statute and dyes the issue shall not be charged with it and so shall his Feoffee but if the Tenant in Tail himself after such charge infeoffs another and dyes the Feoffee shall hold the Land charged and if a Tenant in Tail makes a Lease for years and dyes and the issue doth accept the Rent the Lease is made good and is absolute but if he dyes seised of the Estate-Tail the issue hath his election either to make the Estate good by his acceptance of the Rent or to avoyd the Lease by his entry and if he infeoff a stranger before entry the Feoffee shall never avoyd the Lease and if the issue doth accept the Rent he maketh the Lease good for his time and as the Feoffee of the Tenant in Tail and all those who come to the Land by any assurance made be the Tenant in Tail whereby the Estate in Tail is barred or discontinued shall hold the Estate charged with the Leases and charges made by the Tenant in Tail so shall all those in like manner who come to the Land under the said Tenant in Tail although the Estate-tail doth remain not barred or discontinued saving the issues in Tail who are ayded by the Statute of Westminster the 2. And therefore if Tenant in Tail grants a Rent in fee and takes a Wife and dyes the Wife shall hold charged with the Rent and so if a woman Tenant in Tail grants a Rent and marries and hath issue and dyes the Husband being Tenant by the curtesie shall hold the Land charged for they are not ayded by the said Statute and so if Tenant in Tail grants a Rent in Fee and makes a Lease for three lives warranted by the Statute of the 32 of Hen. the 8. and dyes the Lessee shall hold the Land charged Cooks Rep. 9. Count. Bedfords Case And in the said Case of the Lord Abergeveny it is said that the surviving Ioyntenant by acceptance of the Lease hath deprived himself of the way and means of avoyding the charge for vis accrescendi was the onely means of avoyding it and the right of survivor is gone by the Release And so in our Case the issue in Tail might have avoyded this Lease by his entry but he hath quite barred himself by his Fine And as to the Statute of the 11 H. 7. cap. 20. I conceive that nothing is prohibited by this Statute but onely such Acts as are a bar of the Estate-tail or a discontinuance thereof for so are the words of the Stature viz. If any woman shall discontinue alien release or confirm with Warranty c. And in Sir George Browns Case in Cooks Repor fol. 350. it is there argued Whether a Discontinuance without Warranty be within that Statute but it was resolved that these words with Warranty doe refer onely to Releases and Confirmations which make not discontinuance without Warranty for the intention of the Statute was not onely to prohibit every bar but also every discontinuance but here in this case there is no bar or discontinuance for the woman hath made a Lease for years rendering Rent by which the Estate-tail is neither bound nor discontinued but she remains Tenant in Tail as she was before and so dyed seised of such Estate and therefore if it had not been for the Fine levyed by the issue in Tail himself she might have entered and have avoyded the Lease and this is not like the Case there put by Anderson where Feme Tenant in Tail in Ioynture within the Statute does accept a Fine sur conusans de droit come ceo c. and therefore does grant and render the Estate for 1000 years for though this be no discontinuance of the Estate-tail yet is it a bar of the Estate during the time And Hillar 22 Jacob. I argued this Case again and all the Court viz. Doderidge Jones and Whitlock did agree That the issue in Tail was barred by the Fine to avoyd this Lease and that although the Estate-tail was barred yet is it not extinguished but remains in esse to support the Lease so long as any issue in Tail does remain alive and so they agreed the Lease to be good Wherefore Iudgment was given for the Plaintiff Judicium George Bishop of Chichester Plaintiff John Free-land Defendant 1 Caroli Rot. 607. THe Case was That a Bishop was seised in fee of a Park to which there was the office of a Keeper belonging with a fee of five marks with a Livery granted from time to time by the Bishop And the Bishop does grant the said Office together with the fees necnon cum pastura pro duobus equis in eodem Parco which Grant was confirmed by the Dean and Chapter The Bishop dyes and another is made Bishop And whether this Grant was good to binde the Successor was the Question And I conceive that this is a good Grant against the Successor and will binde him And first I conceive it will not be denyed but that if a Bishop hath a Park he by the Common Law may grant the Office of the Keeper of that Park to whom he will with such fees and wages and for such an estaâ—e as he will and this being confirmed by the Dean and Chapter is good to binde the Successor and therefore it is to be considered Whether any alteration of the Law be made in this point by reason of any Statute In the Bishop of Salisburies Case Cooks 10 Rep. it is there resolved that by the Statute of the first of Elizabeth Bishops are thereby generally restrained from making any estate or interest of
been granted with a fee of five marks from time to time by the Bishop grantor and his Predecessors to whom they pleased Cooks 9 Rep. Earl of Shrewsburies Case The Earl of Rutland was made Steward of a Mannor for life without any words to make a Deputy yet it was resolved that he might make a Deputy because it was not convenient for him to exercise such an Office So if an Office doth descend to an Infant he must of necessity make a Deputy And so if a Bishop be seised of a Mannor he may ordain a Steward of the said Mannor and may grant to the Steward a fee for the execution of the said Office according to the resolution in the said Case of the Bishop of Chester Object But it may be objected that here is a greater Fee granted then was before viz. Pasture for two Horses and therefore the Grant is not good to bind the Successor Respons And I do agree that the Grant of the said Pasture is void yet that shall not at all prejudice the Grant of the said Office with the ancient Fee for they are severall and distinct Grants so that the one viz. The Grant of the Office with the ancient Fee is good by the Law against the Successor and the other void against the Successor but it cannot hurt the grant of the Office and ancient Fee no more then if a Bishop should grant an old Office with an ancient fee and also a new Office which was never granted before and all this by one Deed of Grant and this is duely confirmed although this be void against the Successor as to the new Office yet it is good for the ancient Office and the ancient see for although these fees are contained in one Deed yet are they severall and distinct so that one may be good and the other void 33. H. 8. Dyer 48. One seised of a Mannor to which a Villain was reguardant did grant one acre and also the Villain the Villain did pass in gross and the reason there given is because there be severall Gifts contained in one Deed. Also the Averment of the Plaintiff is insufficient viz. That the pasture was never granted by any of the Predecessors of the Grantor so that it may be that they were granted by himself being Bishop many times before the said Statute and then the Successor may well grant it and in the said case of the Bishop of Salisbury it is averred that the Grant was not by the Bishop Grantor nor any of his Predecessors William Whitton Clerk Plaintiff Sir Richard Weston Defendant in an Action of Debt The Case THe Pryor of S. Johns of Jerusalem did hold certain Lands discharged of Tythes by reason of their order Quandiu propriis manibus excolebant the Statute of 31. of H. 8. for discharging of Tythes is made the 32. of H. 8. it was enacted that the King should have to him his Heirs and Successors all the Lands Priviledges and Hereditaments of the said Pryory the King dies and the Lands by Mesne descents doe come to Queen Elizabeth who grants the Land to Sir Henry Weston Grandfather to the Defendant who died seised and the same descended to Sir Richard Weston Father to the Defendant and so from him to the Defendant And If the Land should be held discharged of Tythes as the Pryor held it was the question And I conceive that the Defendant shall hold the land discharged of Tythes in the same manner as the Pryor held the same For the argument of which two things are to be considered 1. Whether the King or his Patentee shall have the same priviledge which the Pryor had by the Statute of the 32. H. 8. or not 2. Admitting that they shall not have this priviledge by generall words of this Statute then Whether they be discharged by the clause of the Statute of 31. of H. 8. of Monasteries or not And I conceive that by each of these Statutes or at least by one of them the King and his Patentees shall hold this Land discharged of Tithes Quamdiu propriis manibus c. And as to the first point I conceive that the Statute of the 32. of H. 8. hath sufficient words to give this priviledge to the King for it gives to the King not only all their Mannors Lands and Tenements but also all their Priviledges belonging to them or to their Religion or Order and this discharge of Tythes is a Priviledge belonging to their Religion or Order for whereas Pope Pascall did order that no Monk or religious Order should pay Tithes afterwards Pope Adrian did grant this priviledge Solis Hierosolimariis Hospitulariis Cistersiensibus Templaribus and did take away that priviledge from all other Orders And I conceive it will not be denied but that the Pryor himself hath this priviledge and if he had it then it will follow that the King and his Patentee hath it also for all their priviledges are given to the King But it may be objected Object that these priviledges are given in respect only of their Order and the Order bring gone the priviledge is gone also I do agree that all personall priviledges concerning their Order are gone by reason of their dissolution Respons but such priviledges as concern the Land and will make the Land most profitable to the King are remaining and are given to the King for the intent of the Statute was to give it to the King in as ample and beneficiall manner and with all such priviledges concerning the Land as they themselves had And although Tythes are not issuing out of the Land nor shall be extended for unity of possession of the land as in the 42. Ed. 3.13 Where a Pryor having Tythes did purchase the Land and made a Feoffment yet shall he have the Tythes and so if a Parson makes a Lease for yeares of his Glebe-land yet he shall have Tythes thereof yet the priviledge to hold the Land discharged of Tythes is a priviledge concerning the land and is not like to the case of the appropriation of a Rectory to the Templars which was disappropriate by the dissolution of their Order for the reason there is because the appropriation was made to a body corporate which body being dissolved it is impossible they should retain the same and no body else can have it without a new appropriation or an Act of Parliament and for Appropriations to Abbeys c. the clause in the 31. of H. 8. was necessary for otherwise the Patentees of the King being Lay-people and not capable of an Appropriation they cannot have it but by speciall provision by Act of Parliament but any man may hold Land discharged of Tythes But it may be again objected that in the same Parliament an Act was made to revive temporall Liberties Priviledges and Franchises Object 2 of Monasteries and therefore all those had been lost if it had not been for this Statute and Sprituall priviledges are not revived by
Bartons Case Two Ioynt-tenants are for life and one lets his moyety for years to commence after his death and dies and agreed to be a good Lease against the Survivor for as Litton saith every Ioynt-tenant is seised Per my per tout and hath an Estate in one moyety not only for his own life or his own time but also for the time and life of his Companion and therefore every Estate made by him is good for a moyety so long as the Estate of himself and his Companion continues but a Rent-charge shall not bind his Companion because he claimes by the first Conveyance which is above his Companions Estate And as to the second point it is cleer that when Husband and Wife Part. 2 make a Feoffment in Fee or a Lease for years of the Land of the Wife rendring Rent the Wife after the death of her Husband may accept the Rent and make the Lease good as in 26 H. 8. 2. the case of the Feoffment is agreed and if a Woman after the death of her Husband does accept the Rent she shall be barred in a Cui in vita 11. H. 7. 13. 15. Ed. 4. 17. and Dyer 91. B. Husband and Wife make a Lease for years by Indenture and the Husband dies and she accepts the Rent she shall be bound thereby and shall not avoid the Lease Vpon which two things being as I conceive unquestionable it follows that this Lease at the time of the making thereof is not void but voidable And therefore the sole question will be how this Lease is voidable and if it may be avoided by the surviving Ioynt-tenant or not And I conceive that it is avoidable by the Wife only if she survive her Husband and not by the other Ioynt-tenant and that for two reasons First Because the Survivor comes in above the Lease and therefore cannot take advantage of any imperfection or defect to avoid the Lease 14. Ed. 4. 1. B. If a Feoffment or a Lease for life be made to two and one dies the other may plead the Estate to be made to him only for he is not in by him that is dead but by the Feoffor or Lessor and Dyer 187. a. Two Ioynt-tenants for life one makes a Lease for yeares rendring Rent and dies the Survivor shall not have the Rent And if Tenant for life makes a Lease for years rendring Rent and surrenders to the Lessor the Lessor shall not have the Rent for he is in by his Reversion which is above the Lease for years and 28. H. 8. 96. a. An Executor had Iudgment to râ—cover a Debt and died intestate whereupon Administration is committed to another he shall not have a Scire facias upon this Iudgment because that he being Administrator immediately to the Testator is above the recovery Secondly There is no privity between the surviving Ioynt-tenant and the Lessor to make him avoid the Lease which is voidable as in 8. Rep. Whittinghams case Privies in blood as Heir generall or speciall shall avoid a voidable estate made by the Ancestor as if an Infant make a Feoffment in Fee his Heir may well enter and avoid the Feoffment but Privies in Law as Lord by escheat Lord of a Villain or Lord who enters for Mortmain shall never take benefit of the Infancy because they are but strangers And therefore if an Infant make a Feoffment in Fee and dies without Heir the Feoffment is unavoidable 49. Ed. 3. 13. 6. H. 4. 3 7. H. 5. 9. 39. H. 6. 42. And as to Privies in Estate as Ioynt-tenants Husband and Wife Donor in Tail and Donee Lessor and Lessee it is there also resolved that they shall not take advantage of Infancy unleâ—â—e it be in some speciall cases And therefore if Tenant in Tail within age makes a Feoffment in Fee and dies without Issue the Donor shall not enter contrary to the opinion of Rick and Frisby 6. H. 4. 3. because that here is only a Privity in Estate between them and no right does accrue to the Donor by the death of the Donee So if two Ioynt-tenants in Fee be and one of them being within age makes a Feoffment in Fee and dies the Survivor shall not enter but if two Ioynt-tenants within age do make a Feoffment one joynt Right remains in them and therefore if one dies the Right will survive and the Survivor may enter in all and the same Law of Covertue or non sanae memoriae as it is said also in Whittinghams case and in Fitzherb N. B. 192. K. If two Ioynt-tenants within age do alien in Fee they must sue severall Writs of Dum fuit infra aetatem because that the cause of their Action is their nonage which is severall for the nonage of the one is not the nonage of the other But if Husband and Wife within age do make a Feoffment of the Wifes land and the Husband dye the Wife shall have a Dum fuit infra aetatem 14. Ed. 3. Dum fuit infra aetatem 6. and 12. H. 7. 18. B. Kelloway In a Formedon by the Lord Brook against the Lord Latimer if an Infant does make a Feoffment none shall avoid this but the Infant himself and his Heirs and no stranger and the same Law of a Feme Covert And as to the case of Harvey and Thomas 33. Eliz. cited in the Lord Cromwells case Where the Husband made a Lease of his Wifes Land for years and then he and his Wife aliened by Fine and the Husband dies the Conusee shall avoid this Lease which I agree to for the Lease being made by the Husband only is utterly void against the Wife and cannot be made good by any Act done by the Wife and the Land passeth all from the woman by the Fine and therefore the Lease cannot bind the Conusee The Survivor in one case cannot make the Lease good by the acceptance of the Rent because that the Rent does not belong unto him and therefore he shall not be received to avoid this Lease as in Nat. B. 138. B. the Heir shall not have a Cessavit for ceasing in the time of his Ancestor for he shall not have the Rent or the arrearages incurred in the life of his Ancestors and the reason is as I conceive because that the Law does give this benefit to the Tenant for the saving of his Tenancy for the tender of arrearages the which cannot be to the Lord because that the Rent is not due to him and therefore the Lord shall lose his action rather then the Tenant shall be deprived of his advantage of saving the land by his tender And by this case also the Aunt and the Neice shall not joyne in a Cessavit for a ceasing made before the Title of the Neice accrued but in Nat. F.B. 139. it is otherwise there of joynt-tenants as I conceive the reason whereof is because as I conceive the Survivor shall have all the Rent and therefore the tender may be made to him
of price every quarter twenty shillings Ad revendendum contra formam statuti c. And did aver that Stephen Bointon named in the first Information and Stephen Bointon named in the last Information are one person and not divers and that the said three hundred quarters of Barley and a hundred quarters of Beans specified in the last Information are parcell of the aforesaid Barly and Beans in the first Information Unde petit judicium of the said last Information the said first Information depending determinable Vpon which Plea Mr. Attorney demurred in Law And I conceive that Iudgment ought to be given for the King and the Informer for two reasons The offence in the first Information is alledged to be between the first of June 12. Jac. and the two and twentieth of May 13. Jac. so that for any thing appears to the contrary this may be done between the first of June 12. Jac. and twentieth of July next which is not any part of the time contained in the last Information and then that is no answer to the ingrossing between the twentieth of July 12. Jac. and the two and twentieth of May next unlesse he had averred in fact that it was within the time contained in the last information The twenty second of May 13. Jac. is not answered to at all and it may be that the Ingrosment was on that day for the plea of Not guilty goes only between the two and twentieth of May 13. Jac. and the fourth of July next and the last information is between the first of June 12. Jac. and the twenty second of May so that the twenty second of May is utterly excluded and that is part of the time contained in the last information The first Information is for ingrossing of Beans and Pease being a mixt Grain and the last Information is for Beans only and Beans by themselves cannot be parcel of Beans and Pease being a mixt Graine And after Iudgment was given for the King and the Informer Judgment and that principally for the second exception Michalm 14. Jacob. Frosett against Walshe IN an Ejectment of one Messuage ten acres of Land six of Meadow and thirty of Pasture in Mansell Lacy upon a Lease made by Hen Hering the younger the twenty fourth of October 13. Jac. to have from the twenty third of October last past unto the twenty second of October next c. The Defendant pleaded not guilty And the Iury found that the said Tenements were Copyhold parcell of the Mannor of Mansell Lacy devisable in Fee and that there is a Custome within the said Mannor that every customary Tenant of the said Mannor of any Inheritance may surrender the said Tenements out of Court into the hands of two customary Tenants of the aforesaid Mannor to the use of any person or persons and their Heirs and that the said surrender by the Custome of the said Mannor ought to be presented at the next Court to be holden within the said Mannor otherwise the surrender to be void And they found that one Thomas Herring was seised in Fee at the will of the Lord according to the custome of the Mannor of the said Tenements and that he and Anne his Wife the twenty second of Decemb. the 28. of Eliz. at Mansell aforesaid did surrender the said Tenements out of Court into the hands of William Garrows and Hugh Ireland then being two customary Tenants of the said Mannor to the use of Rowland Whittington George Whittington and Robert Whittington and their Heirs and that the said Rowland George and Robert by vertue of the said surrender did enter into the said Tenements and held the same and paid the Rents thereof that were due to the Lord and that the said Thomas Herring before the Ejectment died and that no Court was holden within the said Mannor during his life nor ever since and that the said Rowland Whittington afterwards and before the Ejectment died and the said William Garnar and Hugh Ireton also died before the Ejectment and that the said Henry Herring is the Son and Heir of the said Thomas Herring and that the said Henry the twenty fourth of October the 13. Jac. did enter and made the Lease to the Plaintiff who did enter and was possest untill the Defendant as Servant of the said Rowland and Robert Whittington the twenty sixth of October the same year did enter and oust the Plaintiff And if it seemed to the Court that the Defendant was guilty the Iury found for the Plaintiff and if otherwise for the Defendant And I conceive that Iudgment ought to be given for the Plaintiff The Custome is precisely found that the surrender which is made out of Court is good so it be presented at the next Court so that here is a perfect assurance made according to the custome of the Mannor which the Copyholder that surrenders cannot avoid unlesse something fall out afterward that may avoid the surrender for as to the Cases that have been put by the other side that every Custome shall be taken strictly and therefore the custome of Rent that saves the Land of him that is hanged for Felony does not extend to an Attainder by Outlawry nor the custome that an Infant of the age of fifteen years may make a Feoffment does not warrant a Lease and Release I agree all these to be Law but I cannot conceive how any of them can be applyed to the present question for I do not endeavour to extend this custome in any point beyond the true expresse Letter of the custome viz. That the surrender shall be good if it be presented at the next Court. Object 1 But there have been two things objected to impeach this surrender That Herring who made the surrender is dead And as to that I conceive that the surrender is good notwithstanding for every Copyholder of Inheritance hath as good power to dispose of his land according to the Custome as a Tenant in Fee-sipmple hath by the Rules of the Common-law for although he that comes in by surrender ought to be admitted by the Lord yet all the Estate passeth from the Copyholder who surrenders and the Lord is but an instrument to make the admittance and he gives not the Estate and therefore it follows that the Estate is given by the Copyholder himself Cooks Rep. 4. Charls Pennifathers Case That Copyholders derive not their Estates from the Estate of the Lord and therefore if a Disseisor or Tenant at sufferance do make an admittance upon a surrender or upon a descent this shall binde the Disseisee and if Tenant for years of a Mannor or a Tenant at will does make a voluntary Grant according to the custom this shall binde him in the Reversion and the same Law of a Feoffee upon Condition Dyer 342. And so if there be Lord of a Mannor wherein are Copyholds for life and the Lord marries and grants Copies the Wife shall not avoyd this 9 Rep. Swans Case and 4 Rep.
Taverners Case The Lord is but an instrument to make admittance and he that is admitted shall not be subject to the charge of the Lord. And 4 Rep. Buntings Case who surrendered out of Court and dyed before the surrender was presented yet it was resolved and adjudged that the surrender was good and that it may be presented after his death but if it be not presented according to the custom then it becomes voyd And so in Kite and Queintons Case If he to whom the surrender was made dyes before the admittance yet his Heirs shall be admitted And Periams Case The Feoffment is not good unless it be presented in Court according to the custom yet if the Feoffor or Feoffee dye and after it is presented this is good as in case of a Deed delivered as an Escroul upon condition The second is that the two Tenants to whom the surrender was Object 2 made are dead also But this will not avoyd it for nothing at all does pass from them Answer for they are but only witnesses of the surrender and therefore it may as well be presented after their deaths as in their life-time as in 1 H. 7. 9. If a Iustice takes a note of a fine although he dyes before it be certified yet may it be certified by his Executors and the Fine shall be good and it is also resolved in Buntings Case that thâ—ir death shall not hurt the surrender but upon good proof it may be surrendered after their deaths as in 27 H. 6. 7. If a Feme sole does make an Obligation and delivers it as an Escroul to a stranger to be delivered upon condition and she marries or dyes and then the Condition is performed and the Bond delivered it is a good Bond and so it is resolved in Brags Case and Butlers Case also and it is not like to a Feoffment with warranty of Attorney to make Livery or the Grant of a Reversion and the Feoffor dyes or takes husband before Livery or Attornment for there nothing passeth until the Livery or Attornment according to Littleton and the Feoffee if he enter is but Tenant at will and it lies in the power of the Grantor to countermand it but so cannot he that makes a surrender out of Court Note Perimans Case was here objected That if the Tenant would not present the Feoffment the Feoffee should have his Action on the Case and the same Law if the Lord will not hold his Court within the time but there is no such matter in the Book But in our Case no Action can be against the two Tenants to whom the surrender was made having done no wrong for they can make no presentment before a Court be held neither can any Action be brought against the Lord for the not holding his Court because he is not limited to a certain time to hold his Court neither does the custom refer the presentment to any time but onely to the next Court and admitting he may have an Action on the Case yet is not that any reason that he should lose his customary Inheritance and be contented onely with a personal Action wherein he shall onely receive damages and it may be also that the party is insufficient or may dye whereby the Action will become fruitless And it shall be a very great inconvenience if the not keeping of a Court by the Lord shall hinder the surrender when no time is limited when the surrender shall be but onely at the next Court for then those who argue against this surrender ought to limit another time then the custom doth limit to make this presentment and what time will he limit peradventure he that made the surrender will say that the next Court ought to be holden the next day or within a month but this lies not in his power for when the Custom which is the very being and life of a Copyholder hath limited the next Court no man can shorten that time and the length of time cannot be material and no time is material until the time be past that is limited by the Custom And although it hath been said that Customs shall be taken strictly yet not so strictly but they shall have a reasonable time of exposition according to the reason of the Common-Law as in the 9 Rep. Sir Richard Lerchfords Case where the custom was that if the Heir of the Copyholder did not come to any of the three Courts upon proclamation to claim his Copy it should be forfeit And Thomas Copley did dye the 27 of Elizabeth William his son being then beyond the Seas and the three Courts were holden and the proclamations made and he came not into England until the first of King James But in our case we are within the Custom and although the surrender here is not perfect until the presentment made in Court yet the Plaintiff being Heir to him who made the surrender is bound as his Ancestor was for he cannot countermand or avoyd the surrender and therefore his entry was illegal And therefore Iudgment ought to be given against the Plaintiff And upon the Argument of this Case Michaelm 14 Jacob. Crook Doderidge and Haughton did agree that the Estate did remain in him who made the surrender until he to whose use the surrender was made be admitted by the Lord and this they agreed the Lord might do out of Court and Haughton said that the acceptance of the Rent by the Lord that was found by the Iury does amount to an admittance but the other on the contrary Judgment Wherefore Iudgment was given for the Plaintiff Rot. 832. Trinit 12 Jacob. John Gouge Plaintiff Nicholas Hayward and Jane his wife Defendants IN an Action of Trespass wherein the Plaintiff declared that Stephen Bishop of Winchester the 13 of March 24 H. 8. did demise to Thomas Windham two houses one now in the tenure of the Plaintiff and the other in the tenure of the Defendant in the parish of St. Saviours in Southwark Habendum from Michaelmas last pâ—st for the term of 99 years And that the 16 of March the 24 H. 8. the Prior and Chapter of the Cathedral Church of St. Swithin in Winchester in the life of the Bishop did confirm the said Lease that the 10 of May 10 Eliz. Thomas Windley assigned over to Francis Westby who assigned to William Fryth who assigned to John Butler who the last of September the first of King James by his Will did Devise to Ellinor his Wife all his Lands and Tenements in the said Parish and all Rents arising out of the premisses to come from the day of the date of the said Will for 28 years if she shall so long live unmarryed and after devised it to Thomas Butler his Nephew to have to him and his Children from the day of the death of the said Ellinor during the whole term And further devised that in case his Wife Ellinor should marry then during the residue of the said 28
Common tâ—â—ne and the Term to another and dies and the Executor payes the Rent or suffers the Devisee of the Common to put in his Cattell this is no assent as to the Term for the Term is one thing and the profit out of it is another thing but there in the principall Case the assent of the Executor of the Devise to occupy the Land was a sufficient assent to the Remainder of the Term because the occupation of the Land and the Land it self is all one and Comment 541. the same agreed and that the first assent doth go to all And it is no assent to the Term neither can it be taken by Implication to be any assent to the Devise of the Rent for every Act that does enure to another Act by Implication ought to be such as of necessity ought to enure to the other Act which cannot be taken to be otherwise and therefore 2 R. 2. Attornment the 8th A Woman grants a Reversion to which a Rent was incident and afterwards marries the Grantee to whom the Tenant payes the Rent this is no Attornment for it is indifferent whether he payes the Rent to him as Grantee or in right of his Wife Dyer 302. Vivors Case que recover Rents of severall Tenants as Bayly and then they be granted to him and after the Grant they be paid to him this is no Attornment for they may be paid to him as he is Baily as well as he is Grantee But if the Lessee do surrender to him in the Reversion then it is a good Attornment for a Surrender cannot be to any but to him that hath the Reversion And so in our Case it is cleer that the assent to the Legacy of the Land it self is not any expresse assent to the Rent nor any implyed assent for there may be an assent to the one and not to the other and where the Wife had assented to the Devise of the Term she hath utterly dismist her self of the Term as Executor notwithstanding the assent to the Rent but having once assented to the Devise of the Term she hath no more to do with it and therefore in such Case the Legatee of the Rent ought to sue in the Court Christian for his remedy against the Executor in the same manner as if a Term were devised to one and the Executor will not assent to it but sells the Term to another And in this case if the Testator were indebted after this assent to the Devisee of the Term the Term cannot be put in execution for this Debt but the assent of the Wife is in her a Devastavit 21 Ed. 4. 21. 37 H. 6. 30 2 H 6. 16. Also here is no Rent devised out of this house for the Devise is Ex omnibus aliis terris suis which word all excludes all the Lands wherof any mention was made before And Coke Rep 1. Mildmayes Case There Sir H.S. did covenant for a Ioynture for his life and for the advancement of his Issue Male if he had any and for advancement of his three Daughters and for continuance of his Land in his blood to be seised to the use of himself for life and then of part to the use of his Wife for her life with other remainders to his Issues Males and Females Proviso that it should be lawfull for him to limit any part to any person for life or years for payment of Debts or Legacies preferment of his Servants or other reasonable considerations And then he did limit the part of one of his Daughters to another for the term of a thousand years and this was adjudged a void limitation and one principall reason was because that the word other cannot comprehend any consideration mentioned in the Indenture before the Proviso and the advancement of his Daughter was mentioned before Object 2 But it may be objected that other Lands shall be understood such as shall be demised after her marriage and so will not relate to the house whereof there was mention made before Answer That this Obligation is against the recited resolution for it may as well be said in this Case that other considerations shall be other then what are mentioned in the said Proviso but it was resolved that other shall exclude all considerations mentioned before the said Indenture and so he excludes in this case all mention before in this Writ And this Case was argued at the Bench Pasch 14. Jac. And all the Iustices did agree that all the exceptions taken by the Counsell of the Defendant as well to the matter as to the pleading to be of no force saving the principall point sc If the Rent shall be determined by the death of the Wife or not and herein the Court was divided viz. Haughton and Crook held that it was determined but Coke and Doderidge on the contrary Et sic pendet c. Hillar 12. Iac. Iohn Harry and Lewis Howell against Grace Harry IN a Writ of Errour brought to reverse a Judgment given in a Writ of Dower brought by the said Grace of the endowment of Richard Harry her Husband And the Error assigned was because the demand amongst other things was De tertia parte de uno Horreo uno pomario and the Tenants pleaded Ne unques accouple in legall matrimony which was certified against them whereupon Judgment was given against them whereupon the Demandant did surmise that her husband died seised and so prayed her Dower with damages Et petit breve tam de habere facias seisinam quam de inquirendo de damnis and the Writ of Error was purchased before the return of the said Writ or any Judgment given thereupon And I conceive that it is Error for the Demand ought to be as certain and formall as a Writ for the Writ of Dower being generall De libero tenemento the Demand ought to make it certain and therefore it is of the same nature as the Writ is 8. Ass 29. 13. Ass 2. 13. Ed. 3. br 265. A Chappell or an Hospitall shall not be named but by the name of a Messuage and 8 H. 6. 3. Praecipe quod reddat does not lye of a Cottage and Cokes 11. Rep. Serbes Case in an Ejectione firmae of a Close called Dumote Close containing three acres adjudged insufficient for the name and quantity will not serve without the quality and certainty ought to be comprised in the Court because the possession is to be recovered And it was adjudged that the Error would not lye Loyde against Bethell HUmphrey Loyde brought a Writ of Error in the Kings Bench against Bechell and others to reverse a Recovery had at Cardiff in the County of Flynt by Nicholas John ap Robert Loyde to whom the Defendants are Heires against John ap De ap Robert Loyde for the now Plaintiff of Land in the County of Flynt which Assise did begin in the time of Queen Mary and did continue untill the Reign of Queen Elizabeth the third year
and Iudgment was given therein whereupon the Tenant to the Assise brought a Writ of Error the 5. Eliz. in Easter Term which did abate by reason of his death and after in the time of King James the new Plaintiff brought a Writ of Error in Recordo quod coram nobis refidet which did also abate by reason of variety between the Record and the second Writ of Error whereupon Mich. 13. Jac. the said Plaintiff did purchase this new Writ of Error And the Defendants did plead in abatement of the said Writ of Error that the now Plaintiff before the purchasing of the said last Writ of Error and since the purchasing of the second Writ of Error viz. the 19th of September the 10. Jacob. did enter into the said Land and the same day and year at the place aforesaid did devise the said Tenements to one Thomas Alport Habendum from the Feast of S. John Baptist then last past for four years next ensuing by vertue of which Demise the said Thomas Alport into the said Tenements did enter and was and yet is possessed Vpon which Plea the Plaintiff demurred and the Defendants joyned And I conceive that the Plea is insufficient Yet I do agree that if he who hath cause to have a Writ of Error to reverse a Iudgment of Land does make a good Lease for years he hath suspended his Writ of Error for the Term as he does quite extinguish it by his Feoffment But here it appears that there is no Lease made for it is pleaded only that the Plaintiff did enter into the Land and it appears by the recovery that his entry was taken away by the Iudgment in the Assise whereby he gains nothing by his Entry but the Freehold and possession does remain alwaies to the Defendants being Heirs to the Recovery as appears by Litt. Warrant 158. If one be seised of Land and another who hath no right doth enter into the Land and continues possession yet doth he gain nothing thereby but the possession doth alwaies continue in him that hath right and so in the 3. Ed. 4. 2. Woolocks Case and in the Comment 233. Barkleys Case Execution is taken to be no plea in Bar to an Ejectment because it was shewed that the Lord Barkley did enter as in his Remainder and was seised in Fee untill the Lessor of the Plaintiff did eject him and did demise to the Plaintiff which is not good because it is not alledged that he disseised the Lord Barkley for otherwise he had no Estate to make the Lease and the Entry doth not imply any disseisin or doth gain any possession and 11 Edw. 4. 9. B. 12 H. 6. 43. B. And the Court did agree that the plea was insufficient But then it was moved that the Writ of Error was nought for the Writ was that Quidem Recordum processus Dom. Regina Elizabeth nuper Regina Angliae causa erroris interven venire sec and it appears by the Record that although the Recovery was removed by Writ of Error the 5. Eliz. at the Suit of the Father of the Plaintiff yet the Plaintiff did purchase a new Writ of Error Mich. 9 Jacob. and had a Scire facias against the Heirs of the Recover or who appeared Mich. 10. Jacob. and also the Writs of Habeas Corpus tales Distringas wherefore the Writ is naught for all the Recovery was not in the time of the Queen but part in her time and part in the Kings time But I conceive that it is good enough for first the Recovery and Processe is satisfied by transmitting the body of the Recovery as it is proved by the usuall form of all Writs of Error which is to certifie the Record and Processe and yet they do certifie only the Declaration and the Pleas omitting the Writs Also the Record shall be intended the principall Record and not the Writ and Proces Coke Rep. 11. Metcalfes Case the words of the Writ of Error Si judicium inde redditum sit this shall be taken to be the principall Iudgment 39 Ed. 5. 1. In a Scire facias brought by John Duke of Lancaster and Blanch his Wife to execute a Fine levied to them in the time of Ed. 2. and the Writ did recite the Fine to be levied Tenendum de nobis c. but it was adjudged good by Iudgment of Parliament and 2 R. 3. 4. Bough brought an Action of Debt against Collins who pleaded a forreign Attachment in L. by custome and did mistake the Custome and it was traversed that there was no such Custom and the major certified it so and all this was in the time of King Edw. the first and it was adjourned over to another Term before which time the King died and resumed in the time of King Richard the third and Iudgment given whereupon Collins did bring a Writ of Error which was Rex Dei gratia c. quia in Recordo processu in redditione Judicii loquela quae fuit coram nobis per breve nuper inter B. c. error c. And the question was if it was good And some said that there was no Warrant for such a Writ and some said that the Writ ought to have been speciall reciting how c. But the Masters of the Office said that in a Writ of Error before the Iustices of the Bench there is but a generall form in the Writ And after it was adjudged that the Writ of Error was good John Vandlore Plaintiff Cornelius Dribble Defendant Trinit 14 Jacob. Rot. 1062. IN an Action of Debt on a Bond of two hundred pounds made the eleventh of Febr. the 12th of King James upon condition that the Defendant shall perform the agreement of William Holliday Thomas Moulson Robert de la Bar and Humphrey Burlemacke Arbitrators elected c. to arbitrate of and for all Actions Suits Accounts and Demands had moving or depending in variance between the parties before the date of the said Obligation so that the agreement of the premisses be made and put into writing before the twentieth of March next The Defendant pleaded that there was no such Arbitrement The Plaintiff replyed that the eighteenth of March 12 Jacob. they did make an Arbitrement c. of and concerning the Premisses that the Defendant should pay the Plaintiff fifty pounds viz. twenty pounds at April next and twenty five pounds at _____ and the twentieth of July next twenty five pounds in full satisfaction and discharge of all such monies as the Plaintiff did claim or demand of the Defendant by reason of the administration of the Goods c. of John Stadsell or by any other means whatsoever And that each of the parties upon payment of the said fifty pounds shall make generall Acquittances one to the other of all Actions Debts and Demands unto the day of the making of the said Acquittances And alledged breach to be made in the payment of the said twenty five pounds the twentieth of
Also the Bar is not good because the Defendant says he was possessed of five Steers and doth not say of the aforesaid 9 H. 6. 16. In a Quare Impedit brought by the King of a Chantery in the Chappel of St. Thomas in D. and made title to it and the Defendant pleaded that there was a Chantery in the said Chappel and made title to it and traversed the title of the King and adjudged to be no plea because he did not answer to the Chantry whereof the King had declared And Pasch 14 Elizab. Downing against Hayward In a false imprisonment in Suffolk the Defendant did justifie as servant to A. to whom a Commission of Rebellion of Chancery was directed and the Plaintiff pleaded De son tort Demesne and found for the Plaintiff and reversed again by Error in the Star Chamber because that when the matter of justification is upon matter of Record and matter in fact or of matters done in two Counties that cannot joyn the Issue ought to be upon one only And Pasch 15 Jac. Iudgment was given against the Plaintiff by the opinion of Mountague Crook and Doderidge because that all that was done after Sir Thomas Buriets Warrant was illegall but they agreed that the Plaintiff might have an Action for the charging of Felony and for all that was done before the said Warrant But Haughton disagreed who conceived that Iudgment should be given for the Plaintiff because the Plea of the Defendant was no justification for what was done before the warrant but at last Iudgment was given for the Defendant Judgment Mills against Marshall IN a Writ of Error to reverse a Iudgment given for the now Defendâ—nt against the Plaintiff in the Common Pleas upon an Action of Debt on a Bond of twenty pounds Hil. 11 Jac. Ror 1109. And the Bond was made the twentieth of Jan. in the sixth year of King James and it was on Condition to stand to the Award of George Cockrell Edward Sureton and William Wasse to arbitrate of and concerning all matters then depending between â—hem so that the said Award be made and delivered to the parties under the hands and Seals of the said Arbitrators before the twenty ninth of January next The Defendant pleaded that the Arbitrators the twenty fourth of January in the sixth year of King James did make their Award of the Premisses by Indenture under their hands and Seals 1. That all Controversies and Suits between them unto the date of the written Arbitrement should cease and that the Plaintiff should have liberty to drive his Cattell to the River Eâ—ke c. and that the Plaintiff and Defendant should work and maintain at all times from thence forward a sufficient Hedge by the top of the Scar Sicut terrae praedicti Querentis Defendentis extendunt Anglice as their own Ground goes for security of the Cattell and Sheep which said Hill doth extend to the Land of Henry Facherly unto the Pale which then was between the Land of the Defendant and if any Trees or Woods growing in or neer the Woods of either party shall fall in controversie at any time that it shall be arbitrated by the said Arbitrators three or two of them which Arbitrement was delivered to the parties the same day and the Defendant pleaded that he had performed c. The Plaintiff replyed that the Defendant did not make a sufficient Hedge upon the top of the Scarr Prout terra sua extendit the Defendant said that before the Writ purchased viz. the fourth of April 12 Jacob. at Eshdayle in the County aforesaid he did make a sufficient Hedge upon the top of the Hill aforesaid prout terra sua extendit and so they were at Issue and found for the Plaintiff and Iudgment given and the Defendant brought this Writ of Error And I conceive Iudgment ought to be affirmed Coke 5 Rep. Slingsbles Case If one let white Acro to I.S. and B. Acre to I. D. and covenant with them Et quemlibet eorum that he is Owner each of them may have an Action and Coke 5. Rep. Hurgots Case Submission to an Award so as it be delivered to either of the parties ought to be delivered to each of them 39 H. 6. 7. And all the Court did agree that each of them ought to inclose against his own Land only and so the breach was well assigned wherefore the Iudgment was well assigned wherefore Iudgment was affirmed Hilar. 13 Jac. Crawley against Marrow IN an Ejectment upon a Lease by Robert Faldoc dated the one and thirtieth day of August the thirteenth year of King James of two Houses two Orchards forty acres of Land ten of Meadow and fifty of Pasture in Bridgenorth Habendum from the tenth day of the said month for three years whereupon the Plaintiff was possessed untill the Defendant the eighth of October in the same year did enter and eject him ad damnum c. Vpon not guilty pleaded The Iury found the Defendant not guilty for all except one House and five acres of Land and found further that before the said time the twentieth day of Decemb. 11 Eliz. Rowland Hayward Knight was seised in Fee of the said one house and five acres of Land and ten of Meadow and being so seised thereof did enfeoff John Day and Robert Marshall in Fee to the use of John Whitbrooke and Margaret his Wife in Taile the remainder to the right Heirs of John Whitbrooke and that the last of January 12 Eliz. John Whitbrooke did enter into a Recognizance of a thousand pounds in the Chancery to Richard Faldoe which money was not paid to Richard in his life time That John Whitbrooke and Margaret had issue John Whitbrooke Knight and after and before the fourteenth of January 8. Jacob. died and before the said day Richard Faldoe made his Will and did make Amphillis his Wife his Executor and died and Amphillis did make Robert Faldoe Esquire and Thomas Shepheard Knight her Executors and died who undertook the Executorship 14. Jan. 8. Jac. Robert Shepeard and Faldoe had a Scire facias to the Sheriff of Middlesex to have execution of the Recognizance whereupon John Whitbrook was returned dead whereupon they had a Scire facias against the Heir and the Ter-tenant whereupon John Whitbrook was returned Heir and Ter-tenant who pleaded that he had no Land that was the Conusors at the time of the Recognizance or ever since by hereditary descent from the Conuzor in Fee and said that he ought not to be charged as Ter-tenant because he hath no Freehold that was the Conusors The Plaintiff replyed that the said John Whitbrook had divers lands by descent from the said Conuzor viz. A house called the Hospitall thirty seven Tenements or Messuages five Cottages one Tost one Dove-house thirty nine Gardens six Barns fifty four acres of Land thirty nine of Meadow and thirty six of Pasture in Bridgnorth and that the said John Whitbrook was Tenant of the Premisses
at the time of the Declaration the Subjects of the King of Spain I conceive that the Plaintiff ought to alledg that these spoyls were to the damage of the Plaintiff I conceive that he ought to have named one of the Subjects of the King of Spain and not to leave it so uncertain to the Iury as to have them charged to enquire of all his Subjâ—cts for the Plaintiff takes notice of the persons that they were the Subjects of the King of Spain and therefore he may as well know their names Dyer 99. 285. An Indictment of Murder of one unknown or stealing the goods of one unknown is good because he may be discovered And after the Plaintiff discontinued his Suit Holland and others against Jackson and others RIchard Holland and Margaret his wife one of the daughters and heirs of the body of Sir Robert Langley Knight and William Dausey and Ann his wife the other daughter of the said Sir Robert brought a Writ of Error to reverse a common Recovery had at Lancaster die Lunae 13 Elizab. In a Writ of Entry sur Disseisin in the Post between the said Francis Jackson and Henry Oyden Plaintiffs and Robert Leigh and James Haye Tenants of 22 Messuages 10 Cottages 20 Tofts 22 Gardens 20 Orchards 300 acres of Land 200 of Pasture 40 of Wood 500 of Furze 100 of Turbary c. with the appurtenance in Alkerington and Prestnitch wherein the Tenants did vouch Thomas Leigh and Katherin his wife who did appear by George Butler their Attorney who entred into warranty and did vouch William Forster present in Court who did warrant c. ad damnum c. for that before the purchase of the said Writ of Entry and since the 27 H 8. Sir Robert Langley was seised in see of the said Tenements and thereof did infeoff Thurston Tilsley Fitton and Hopwood in fee to the use of himself for life and after to the use of the said Katherin in T. the remainder to the use of the right heirs of the body of the said Sir Robert the remainder to the use of his heirs Sir Robert was seised for life with remainders over c. and then Sir Robert dyed seised after whose death the said Tenements did remain to Katherin in Tayl the remainder to Katherin and the Plaintiffs Margaret and Ann and one Dorothy as daughters and heirs of the body of Sir Robert the Reversion to the said daughters and their heirs whereupon Katherin did enter and was seised in Tayl with Remainders as aforesaid and did marry Thomas Leigh whereupon the said Recovery was had in manner and form as aforesaid after which Recovery Thomas Leigh and Katherin did dye without issue of the body of Katherin and Dorothy dyed also without issue whereby the right of the said Tenements did remain to the said Margaret and Ann as daughters and heirs of the body of the said Sir Robert The Writ of Recovery was certified and the Plaintiffs assigned Error for that Katherin was within age at the time of the appearance of her and her Husband by the said Attorney and was within the age of 21 years at the time of the Iudgment to wit of the age of eighteen years and no more Hereupon a Scire facias was awarded against the Recoverors who being returned dead a Scire facias was awarded against the heirs and Ter-tenants whereupon Ambrose Jackson was returned son and heir of the said Jackson and Thomas Hulm and Margaret his wife and Isabel Ogden daughters and heirs of the said Ogden and William Ogden and others were returned Ter-tenants and the heirs and Ter-tenants did appear and pleaded several Pleas some to the Writ and some in Bar and after the Writ of Error was discontinued Hillar 11 Jacob. The Plaintiffs purchased a new Writ of Error of the said Tenements omitting the Rent and assigned the said Error whereupon a Scire facias was awarded against the Heirs and Ter-tenants which was returned to wit that Margaret Hulm was dead without issue and thereupon a Scire facias was directed to the said Jackson and Ogden the Heirs c. and Katherin Leigh and Robert Leigh and fourty other Ter-tenants who did appear and thereupon Whereupon the said Error was assigned The Ter-tenants did plead that John Chatterton was Tenant of a Cottage c. in A. aforesaid parcel of the said Tenements The Heirs pleaded in null est errat The Plaintiff did acknowledg the Plea of the Ter-tenants and thereupon a Scire facias was awarded against John Chatterton who did appear and the Plaintiff did assign the said Error whereupon Jane Jackson one of the Ter-tenants did plead that Katherin was of full age c. whereupon issue was joyned And George Chatterton and ten others of the Ter-tenants did plead non-tenure And the Heirs of the Recoverors did plead in null est errat And Mary Taylor did plead that before the Recovery a Fine was levyed the 4 Septemb. 13 Elizab. between the said Robert Leigh and James Haye Plaintiffs and Thomas Leigh and Katherin his Wife Deforceators of the said Tenements whereupon the said Thomas and Katherin did acknowledg the said Tenements to be the right of the said Robert c. with warranty against them and the Heirs of Katherin which Fine was proclaimed c. and was to the use of the Conusees and their Heirs until the Recovery should be perfected and then the seventh of March the 13 Eliz. the Writ of Entry was pursued which was to the use of Thomas and Katherin his Wife in Tayl the Remainder to Thomas and his Heirâ— Thomas and Katherin did demise to the said Mary a Cottage and three acres of Land parcel of the said Tenements for life c. wherefore she did demand Iudgment of the Writ against the Fine with proclamations Robert Leigh and 28 others of the Ter-tenants did plead the said Fine with warranty and that Katherin dyed without issue and that Thomas was seised in fee whose estate they have and that Thomas dyed and that after the death of Katherin the said warranty did descend to Margaret and Ann as sisters and heirs of Katherin and did demand Iudgment if they should maintain this Writ against the said Fine and against the warranty The Plaintiffs as to the said several pleas of non-tenure in null errat the fine with proclamations and the warranty did severally demur in Law to which the Defendants did severally joyn And I conceive that the Writ of Error does well lie and that the Recovery is erroneous and therefore ought to be reverst And for the Argument of the Case I shall divide it into three parts If the Writ of Error will lie 1. In respect of the Plaintiffs 2. Notwithstanding the plea of non-tenure pleaded in abatement thereof by Chatterton and ten others of the Ter-tenants Whether there be any Error in the Recovery and if it be such an Error as the Plaintiffs may assign If the Plaintiffs be barred thereof by the pleas
of age or not 29 Assise 67. In an Assise against Husband and Wife the Husband did answer as Tenant and the Wife would not but the Husband said that his Wife was within age and that she was taken away but did not say by whom and he did appear for himself and his Wife as her Guardian and pleaded in Bar and one of the Counsell said that the Wife had made default which is the default of the Husband and because that he answered as Guardian without Warranty by Record in this Court to do the same Iudgment c. And there Thoâ—â— said that he ought to have a Warranty in such case wherefore the Assise was awarded 35 H. 8. 56. In a Writ of Right by the Husband and Wife the wife being within age and she appeared by her next of Kin and was admitted by the Court. New Book of Entries 256. In a writ of Error to reverse a Fine by Maurice Pierce and Joane his wife and John Pierce and Elizab. his wife the three first appeared in person and Elizabeth being within age by one Laurence Gibson her Guardian and admitted by the Court. And so in this Case forasmuch as the Land is the Inheritance of the wife which is demanded which she will lose by this Recovery she ought to appear by her Guardian notwithstanding the full age of the husband who is joyned only for form sake with his wife 30 31 Eli. Morseby against Charnock The husband and wife levied a Fine and after this was reversed by Error because that the wife was within age the husband shall not have the Land for all the Estate passeth from the wife and the husband joyned only for conformity Coke 2. Rep. Cromwels and Beckwiths Case But it may be objected also Object that this Error concerning the nonage of the wife is so appropriated to her person in privity that no stranger can take any advantage thereof I conceive not so Answer for the constituting of an Attorney is utterly void as to the wife and therefore every stranger shall take advantage there as is not like the Case where an Infant makes a Feoffment which is but voidable and therefore the Lord by escheat nor any stranger shall not avoid it 22 H. 6. 31. The Plaintiffs within age did sue by an Attorney and there it was ruled that the Defendants might have a Writ of Error and placit 37. Eliz. Rot. 253. Bartholomew brought a Writ of Error against Dighton for that Dighton recovered against him in an Action of false Imprisonment in which he being within age did sue by an Attorney and adjudged that Iudgment should be reversed And this Case is not to be resembled to the Case of a Fine levied by an Infant which cannot be reversed by any but by the Infant himself and the same Law is of a Recognizance by an Infant and the reason of these Cases is because it is the Act of the Court to admit him to levy a Fine or to acknowledge a Recognizance and therefore this ought to be reformed by the Court and that must be by inspection of the Infant and therefore it ought to be done during nonage But the nonage in this Case ought to be tryed per pais as it was adjudged in the said cases of Bartholomew and Dighton and the case of Hobbs in which case the Infant was brought to the Bar to be inspected but adjudged by the Court that it should not be so because the matter was tryable per pais and 10. Rep Mary Portingtons case A common Recovery against an Infant although he appears by his Guardian shall not bind him for an Infant hath not such a disposing power of his Land as the Husbands wife have but is utterly disabled by the Law to transfer or convey his Inheritance or Freehold to others during his minority And of late daies a common Recovery does appear to be a common conveyance and assurance of Land The third part of the Case is If the two matters pleaded in Bar of Part. 3 the Writ of Error or any of them be sufficient or not I conceive not And first as to the Fine with Proclamations levied before the Recovery had which is the Plea of Mary Taylor one of the Ter-tenants I conceive that it is utterly insufficient as well for the manner as the matter of the Plea for she hath disabled her self to plead this Plea for she sets forth that the twentieth of May 31 Eliz. Thomas Leigh and Katherine his wife did let to the said Mary a Cottage and three acres of Land parcell of the Tenements expressed in the Fine and Recovery for life but doth not shew in what Town the said Cottage and three acres do lye wherefore the Plea is altogether uncertaine and insufficient for the Tenements in the Recovery do lye in two Towns viz. In Alkington and Prestwick and it doth not appear by this Plea in which of these the Cottage and three acres do lye 5 Ed. 4. 116. b. In a Formedon in Discender of a house and forty acres of Land and six of Wood in three Towns and the Issue being to be tryed the Tenant said that the Demandant had entred into the house and thirty acres of Land and three of wood And by the Court the Plea was naught because it did not appear in which Town the Entry was And in Moore and Hoskins case in the Exchequer 8 Jacob. In an Ejectment of Land in Overkiddington and Netherkiddington the Defendant pleaded not guilty and when the Issue came to be tryed by Nisi prius in the County of Oxon the Defendant pleaded an Entry of the Plaintiff in three acres of the Land contained in the Declaration since the last Declaration whereupon the Plaintiff demurred and adjudged that the Plea was insufficient and thereupon the Plaintiff had Iudgment to recover Secondly for the matter this Fine being precedent to the Recovery whereby the cause of this Action is given cannot extinguish it for it is a Rule in Law that one cannot give or grant that which one hath not 22 H. 7. Kelway 84. If the eldest Son in the life-time of his Father infeoffs another it is void as to bind the Land and Littleton Releases 106. These words in a Release Quae quo vis modo in futuro habere potero are void in Law for no Right doth passe but only the Right which the Releasor had at the time of the Release as if the Son release to the Disseisor of his Father all the right which he hath or may have and the Father dye the Son may enter because that he had no right in the life of his Father but only a descent to him after the Release by the death of his Father 13 Ed. 1. 10 Ed. 2. and 4 H. 7. cap. 24. It is enacted that Fines with Proclamations shall conclude as well Privies as Strangers saving to the strangers such right claim and interest as they had at the time ingrossed so as they
favourably then a Plea yet is it all one for I agree that a Verdict need not be so formall as a Plea but if it wants substance either on the one party or the other this shall prejudice the party as much as if there had been a pleading for the Court cannot give Iudgment without some matter found and therefore for as much as in our Case the life of Sir Richard makes for the Defendant and all the validity of his Lease depends thereon he ought to prove by evidence that Sir Richard was alive so that the Iury might have found it and because it was not so found the Court will not intend that he is alive and therefore he shall be taken to be dead and so his confirmation is finished But admitting it shall be intended that he is alive yet I conceive that immediatly upon the death of Valentine his Estate which he had by the limitation of the use is determined and vanisht and he is remitted to his Estate-taile and then his confirmation as I have already proved which doth charge the Estate which he hath by limitation of the use cannot endure Yet I will agree that if Tenant in Taile makes a Feoffment to the use of himself for life and after to the use of his Issue being within age and dies that his Issue shall not be remitted as it is resolved in the Comment 111. Townsends Case and 207. Standbridge and Morgans Case But the diversity is when the Estate-taile is discontinued wherby the Entry of the Issue is taken away and he is put to his Formedon there he shall not be admitted for the limitation of a use to him for if he will take the Estate according to the use he ought to take it in the same manner as he had the use but when no discontinuance is made of the Estate-taile it is otherwise as in Townsends Case Comment 111. Where Amy the wife of Roger Townsend was Tenant in Taile and the Husband the 29. of H. 8. made a Feoffment to the use of himself and his wife for life the Remainder to the use of their eldest Son for life with divers Remainders over the husband and wife died and resolved that neither the wife nor the Son are remitted and the reason there was because that the Feoffment being made before the Statute of 32. of H. 8. was a Discontinuance to the purging of which the wife was driven to her Cui in vita and cannot avoid this by Entry as she might after the Statute of 32 H. 8. and therefore it is there agreed that if a Disseisor make a Feoffment to the use of the Disseisee and he enters he is remitted because his Entry was congeable And so Dyer 191. 2 3 Eliz. Land is given to the husband and wife and to the Heirs of the body of the husband the husband after the Statute of 32 H. 8. makes a Feoffment to the use of himself and his wife for life the Remainder to the first Son for life the Remainder to the right heirs of the husband the husband dies and it was resolved in the Court of Wards that the wife should be remitted notwithstanding the Statute of Vses because that her Entry was congeable and so 11 H. 7. 12. a. If the son disseiseth the Disseisor of his Father and the Father dies now forasmuch as that a right of Entry was in the Father which by his death doth descend to the Son he shall be remitted notwithstanding that he came to the possession by his own proper and wrongfull Act which is as strong against a Remitter as an Agreement is to a Vse And so if the Son and another doth disseise the Father and the Father dies the Son is remitted and shall put out his companion And then Sir Richard being remitted the Confirmation as I have shewed before being but a charge upon the Advowson is meerly determined and so Littleton 148. B. If Tenant in Taile enfeoffs his Issue within age who at full age doth grant a Rent-charge or a Common and the Father dies the Issue shall hold discharged and 40 Ed. 3. 448. If Tenant enfeoff a stranger who grants a Rent and enfeoffs his Son within age and the Tenant in Taile dies the Issue shall hold the Land discharged and the same Law by Catesby in 12 Ed. 4. 13. b. If Tenant in Taile after Discontinuance does repurchase the Land and dies and the reason is because the Statute that was charged is vanisht And although that the opinion of Bromley 33 H. 8. Dyer 51. b. be that the Issue in such case shall not avoid a Lease for years made by him before his Remitter yet the case of a Rent is there also agreed that it is determined by the Remitter and the same Law is in Ioynt-tenancy if one doth make a Lease for years so that he doth dispose of the possession this shall bind the Survivor but otherwise if he charges the Land with a Rent or other thing and so is it where a husband hath a term in right of his wife as in 7 H. 9. 2. 3. And as to the last part of the Case so If the Fine levied by Valentine the Son and Heir of Sir Richard Knightley doth give any force or strength to the confirmation or not and I conceive that it doth not for three causes First the Fine is not with any Proclamations so that it is no bar to the Intail and therefore it is no more then a bare Grant of a Tenant in Tail Secondly As this Fine is found it cannot be intended to be levied by Valentine Knightley the Son of Sir Richard but by a stranger of that name for it is first found that the 27 Eliz. Sir Richard did grant the Advowson to Valentine Knightley then his Son and Heir apparent and that the 36 Eliz. a Fine was levied between B. T. and H. Y. Plaintiffs and Valentine Knightley Esquire Deforceator wihout saying the aforesaid and therefore I conceive that Valentine Knightley Esquire who levied the Fine cannot be intended to be Valentine Knightley Son and Heir of Sir Richard and yet I agree the Case of 21 H. 7. 30. That when Westminster is put into a Plea and then a matter is alledged apud Westmonasterium without praedict it shall be intended the same place but when another addition is given to the person or place it is otherwise and therefore in the second place if it be sayd apud Westmonasterium super Thamesin it shall not be taken for one place 5 Ed. 6. Dyer New Book of Entries 650. 35 36 Eliz In the Kings Bench Vpon a Trespasse for breaking his Close and breaking and spoyling two Gates and three perches of Hedge the Defendants prescribed to go there in perambulation upon which there was a demur c. and adjudged for the Plaintiff 1. Because that he ought to alledge this by custome and not by prescription 2. Because the Bar was that the Plaintiff had obstructed the
Court of the Kings Bench was on the contrary But afterwards the case was resolved upon another point viz. That the Lease was voyd because that the words a die confectionis c. were razed by the Lessee himself But admitting that in this case the Lease should not begin until the end of the first Lease yet that is no proof that in our case the Lease shall not begin presently for in this case of the 9 of Elizab. the true Grant in the premisses does shew the intent of the parties to make a Lease in Reversion and that shall controul the words in the Habendum a die confectionis also these words are qualified by other words in the Habendum viz. termino praedict finito Thirdly the former Lease is recited as a good Lease without doubt but in our case the first Lease is not received as a Lease in truth but is termed a pretended Lease and yet in this case there were diversities of Opinions if the Lease shall commence presently or not And Mich. 10 Jacob. Thomas Moor brought an Ejectment against John Musgrave upon a Lease made to him by William Moor the fifth of May 10 Jac. of a Messuage c. in C. in the County of Cumberland habendum from the Feast of the Anunciation last past for 21 years whereby he entred and was possest until the Defendant the same day did eject him To which the Defendant pleaded Not guilty And the Iury found that William Moor was seised in Fee and made a Lease to the Plaintiff habendum from the Anunciation of the Virgin Mary last past for the term of 21 years next ensuing the date hereof c. And Iudgment was given for the Plaintiff whereby it appears that the term shall begin from the first limitation And after the Case was argued on the Bench by all the Iudges Judgment and Denham Bromley and Tanfield were of Opinion for the Defendant wherefore Iudgment was given against the Plaintiff Michaelm 14 Jacob. Standish against Short in the Exchequer IN an Ejectment on a Lease made by George Walker Parson of the parish of S. John Evangelist in London 14 Junii 14 Jac. of a Messuage called the Swan in the said Parish habendum from the Anunciation last past for three years whereupon the Plaintiff was possest until he was ejected by the Defendant the 15 Junii in the same year And upon Not guilty pleaded the Iury found That the said Messuage did lie within the City of London and that it was an ancient City and that by the Custom every Citizen being a Freeman of London by his Will in writing may devise all his houses and Lands and any part thereof in the said City as well in Mortmain without license as in any other manner in Fee in Tayl for life or for years c. and that the said Custom and all other Customs of the said City the 7 of Richard the second were confirmed by Act of Parliament And they found that William Daringre Citizen and Freeman of London the tenth of May 34 of Ed. the third was seised in Fee as well of the said Messuages as of other Lands in London in Fee and the tenth of May 1360. and in the 34 of Ed. 3. made his Will in writing and thereby did devise the said Messuages by the name of his Tenements in these words following And first he devised a Quit Rent of 40 s. a year to the Parson of St. John Evangelist and his successors to pray for Souls and he did devise to the said Parson and his successors a Chamber with two Cellars thereupon lying on the North-side of his Tenement to pray for Souls And then followed this clause Item lego ordino quod unus capellanus celebret in Ecclesia Sancti Johannis praedict statim post decessum meum pro anima mea animabus praedictis quod idem capellanus percipiet annuatim de Tenemento meo 8 Marks pro stipendio volo quod idem capellanus ad matutinas missas omnibus aliis horis Canonicis in Ecclesia praedict intersit per dispositionem Rectoris ejusdem qui pro tempore fuerit de residuo si quod clarum fuerit ultra solutionem dict tenementi Volo quod Richardus filius Elizabethae uxoris meae scolatizando adjuvetur quousque ad legitimam aetatem pervenit ad ordines Sacerdotales percipiend cum Sacerdos fuerit volo quod idem Richardus dictum cantarium occupet pro termino vitae suae si voluit si non de residuo praedicti tenementi neque de cantario nihil percipiet sed Rector antedictus qui pro tempore fuerit 4 magistri sufficient Parochiam praesentent invenient unum capellanum ad dictum Cantarium occupandum in perpetuum de tenementis meis in dominica Parochia non legatis salvo quod lego de dictis tenement meis Rectoribus Successor suis illam mansionem quam Johannes Sherman modo tenet reddend inde annuatim tot quiet reddit de omnibus tenementis meis exeunt Item volo quod si dominica Cantuaria pro defectu dicti Rectoris vel Successor suorum retardavit ultra 40 dies inoccupat fuerit quod dict camer solarii mansiones erunt Gardianis de ponte Et id quod clarum fuerit residuum ultra solutionem reparationem praedict volo quod ponatur sub custode Rectoris 4 Parochianorum ad providend ornamentum libros dominicae Ecclesiae And the Devisor dyed the same day seised of the said Tenements And they further found that the Messuages wherein c. is parcel of one of the Tenements in the Will out of which the Testator did ordain that the said Chaplain should have eight Marks for his stipend and that Henry Tyting was Parson of the said Church at the time of the death of the Devisor and that the Church was voyd by his death and that the Lessor was presented admitted instituted and inducted and that he entered into the said Messuages upon the Defendant and did expel him and made the Lease to the Plaintiff who entered and was possest until the Defendant ejected him And whether the Defendant was guilty or not they prayed the Opinion of the Court. And I conceive that the Plaintiff ought to have Iudgment And the Question is Whether the Parson by this Devise shall have the houses the said eight Marks are limited to be payd to the Chaplain or not And I conceive that the Parson shall have it In the Comment 4136. It is taken for a Rule that in expounding of Wills the Law shall interpret the words of the Devisor and shall direct their operation according to the intent of the Devisor so that to the matter form and order limited in last Wills the Law does submit to them and wills that they should be observed And although that in Conveyances or Deeds executed by men in their life-times the Law doth require apt words to make
a Lease for four years the Lessee entred and the Lessor did grant the Land habendum from Midsomer next for life the Lesses after Midsomer did attorn and adjudged that the Grant was void and in Barkwicks Case 5 Rep. the reason thereof is given because that if the Grant should be good the Grantor should have a particular Estate scil during the first day of the date or in the mean time untill the Grant did begin to take effect without any Donor or Lessor which is against the Rules of Law And although this Grant of the Reversion be but for years yet is it all one for the diversity is between a Lease for years made Tenant in Fee or for life to commence in future and a grant of a Reversion for in the first Case it is but a future Charge upon the Land so that the Lessor hath his former Estate untill the Lease doth begin and the Lessee hath no Term but only interesse termin and therefore Hil. 38. Eliz in the Common Pleas between Row and White it was agreed that if the Lessor be disseised before the Lease begins the Lessee after the day of the Commencement may grant the term otherwise where a Lessee for yeares in possession is outed by an estranger for there his Term is turned into a Right but in the first Case he hath not any Term in esse and therefore it cannot be turned into a Right nor any wrong done thereunto And for direct Authorities in this Case 29 Eliz. in the Common Pleas the Countesse of Kents Case Where one having a Reversion in Fee does grant this Habendum after the death of I. S. for years and it was adjudged a void Grant And Trin. 39 Eliz. Johnson and Somerset in the Common Pleas Lessee for life grants the Reversion Habendum a die dat for ten years and adjudged a void Grant And in the Comment 155. by Brown If one having a Reversion does grant it habendum after a day to come for years this is a void Grant for if it may be granted from a day to come the Grantor shall have a particular Estate in the mean time by his own making which cannot be that one may be Lessor to himself or diminish his own Estate and there it is taken for a Rule that when there is a Rent in Esse or a Reversion c. a man cannot make this to be in esse for a time and to cease for another time or to grant it to another after the death of any or from a day to come relinquishing to himself an Estate in the mean time And in the Comment 197. b. Adams against Wortesbey agreed there that a Reversion cannot passe as a Reversion according to the common understanding thereof from a day to come But Haughton conceived that this Case being a bargain and sale whereby the use doth passe first this may well passe from a day to come Quod nullus dedixit Thirdly It is not averred that the twenty acres in which the Distresse was taken was not part of the Closes excepted so that it may be part of them and then no Distresse for the Rent can be taken there And although it may be gathered by some words in the Bar to the Avowry that the place where c. was parcell of the Land devised to Wiseman yet this shall not help the Conusans as in Cokes 7. Rep. fol. 24 25. where one having Land in Fee and another Land for years did grant a Rent for life out of both the Grantee distrained for the Rent and avowed that the Rent was granted out of the Lease land amongst other lands whereas he ought to have alledged the Rent to be granted out of the Land in Fee only and although the Plaintiff in his Bar to the Avowry hath shewed the truth of the Case yet this will not make the Avowry which wants substance to be good Judgment And all the Court did agree the Avowry to be naught for this exception Wherefore Iudgment was given for the Plaintiff in the Replevin Mich. 14 Jac. Webb and Jucks Case against Worfeild Rot. 266. IN a Writ of Error to reverse a Iudgment given in the Common Pleas for the now Defendant against the now Plaintiffs In which the Plaintiff did declare that the Defendants the fourteenth of Febr. 9 Jac. at Ponick in a place called Brancefords Court did take an Oxe from the Plaintiff ad damnum forty pounds The Defendants did acknowledge the taking of the said Oxe as Bayliffs to Elizabeth Ligon Widow for that the place where c. contained two acres of Land and that one Anne Ligon was seised in Fee of the Scite of the Mannor of Bransford and of seven Messuages three Gardens and a hundred and fifty acres of Land forty two of Meadow sixty six of Pasture five of Wood and seventy of Furzes and Heath in Ponick aforesaid Bransford Leigh Newland and Wick whereof the place where c. is parcell That the sixth of September the twenty fourth of H 8. Anne Ligon did devise this to John Parsons and Anne his Daughter for seventy years after the death of Elizabeth his wife if they or either of them shall so long live rendring five pounds four shillings eight pence Rent at the Annunciation Christmas Midsummer and Michaelmas That the eleventh of August 1554. Elizabeth Parsons died whereupon John and Anne Parsons entred And Ligon dies whereby the Reversion descended to Sir Rich. Ligon her Son and Heir and Sir Richard died wherby the same descended to William Ligon his Son and Heir who died also whereby the same descended to Richard Ligon his Son and Heir who died also and the same descended to Sir Richard Ligon his Son and heire who Hil. 33 Eliz. did levy a Fine Sur Conusans de droit come ceo c. to the use of himself for life the Remainder to the said Elizabeth Ligon then his Wife for life the Remainder to the Heirs of the body of Sir William the Remainder to the right Heires of Sir William 10 May 4. Jac. John Parsons died Pasch 6 Jac. Sir William Ligon and Elizabeth his wife did levy a Fine to the Plaintiff to the use of the Plaintiff for the life of Sir William the Remainder to the said Elizabeth for her life the Remainder to the Plaintiff in Fee Sir William dies whereby the Reversion does remain to Elizabeth his Wife And for seventy eight pounds six pence of the said Rent for three quarters of a year ending at Christmas 9 Jacob. they did acknowledge c. and they averred the lives of the said Elizabeth Ligon and the said Anne Parsons Bar. The Plaintiff said that the Fine levied by Sir William and Elizabeth his wife was to the use of the Plaintiff and his Heirs and justified the putting in of the said Oxe by the license of the said Anne Parsons Absque hoc that the said Fine was to the use of the Plaintiff for the life of
Sir William the Remainder to the said Elizabeth for life the Remainder to the Plaintiff in Fee as the Defendants alledged and so they were at Issue And the Iury found the Lease and the descent of the Reversion and the Fine 33 Eliz. and the use and the death of John Parsons ut supra And that the one and twentieth of September 5 Jac. Sir William Ligon and Elizabeth his wife did make a Deed of Indenture of the said Tenements in these words This Indenture made c. between them of the one part and the Plaintiff on the other part whereby Sir William for seven hundred pounds before the ensealing and delivery paid to Sir William by the Plaintiff did covenant that he and Sir William before Christmas next should levy to the Plaintiff a Fine with Proclamations of the said Tenements which Fine and all Fines and Assurances to be had within seven years should be to the use of the Plaintiff and his Heirs upon Condition that if Sir William and Elizabeth or any of them or the Heirs or Assigns of Sir William should pay to the Plaintiff or his Assigns nine hundred forty three pounds at the Annunciation 1611. that the Estate of the Plaintiff should cease and that Sir William and Elizabeth and his Heirs should enter and the Fine should be to the use of Sir William and Elizabeth and the heirs of Sir William And Sir William covenanted with the Plaintiff that he and his Heirs untill the nine hundred forty three pounds be to be paid should have and enjoy to their use under the said Condition and according to the meaning of the said Indenture and if default of payment should be made then after such default the Premisses and the Rents and Profits thereof if such default should be shall be taken and enjoyed to their use without any interruption of Sir William and Elizabeth c. and discharged and saved harmlesse of all Incumbrances c. made by Sir William c. except the said Lease and Sir William covenanted that if the nine hundred forty three pounds should be paid to pay to the Plaintiff the charge of the assurance Pasch 5 Jac. The Fine was levied by Sir William and his wife to the Plaintiff and they found that the sixteenth of April 6 Jac. the Conusance of the Fine was made at M. in the County of Wilts and that after the said Conusance and before the said fifth of September Pasch 20. Martii 5 Jac. the said Sir William made another Indenture between him and his wife of the one part and the Plaintiff of the other part whereby Sir William and Elizabeth for seven hundred pounds before paid to them by the Plaintiff Sir William and Elizabeth did bargain sell and grant to the Plaintiff and his heirs the said Tenements upon the like Condition as aforesaid and Sir William did covenant that he and his wife should make a further assurance by Fine c. and that all such assurances should be to the Plaintiff and his Heirs under the said Condition untill default of payment and after such default to the use of the Plaintiff and his heirs absolutely and if payment be made to the use of Sir William and Elizabeth and the heirs of Sir William and the Plaintiff did covenant that Sir William and Elizabeth and their heirs untill the Annunciation 1611. should have all the Rents and Profits of the Premisses without interruption of the Plaintiff or his heirs That the eighth of December 6 Jac. Sir William Ligon died after whose death scil the aforesaid time quo c. the Defendants as Bayliffs to Elizabeth did take the said Oxe in the said place for the said seventy eight pounds six pence of the said Rent for three quarters ending at Christmas 9 Jac. But whether the Distresse was well or not they prayed the advice of the Court c. And upon this Verdict it was adjudged in the Common Pleas after many Arguments that the Plaintiff should recover For all the Iustices did agree that the said Fine was to the use of the Plaintiff and his Heirs whereupon the Defendant brought this Writ of Error and assigned the Error in the point of Iudgment only And it was objected by the Councell of the Plaintiffs in the Writ of Error that that it was apparent upon this assurance that it was made for the assurance of the payment of seven hundred pounds lent by the Plaintiff to Sir William and Sir William was to repay nine hundred forty three pounds which was full Interest according to the rate of ten in the hundred and then by the expresse Covenant in the first Indenture the Defendant in the Writ of Error was to have the Rents and Profits of the Land also whereby Worfeild should have more then ten pounds in the hundred and then the assurance is void by the Statute of Vsury then although by the last Indenture it is provided that Sir William and his wife should have the Rents and Profits untill the day of payment yet this shall not bind the wife for it is found expresly that she did disagree to this Indenture But I conceive that the Distresse was not well taken but that the Fine was to the use of William Worfeild and his heirs and so the Rent belonged to him And first as to the Objection that the assurance is void by reason of the Statute of Vsury that cannot be 1. Because it was not found that there was any lone of mony or usurious Contract and therefore it may be and so it shall be intended that the seven hundred pounds was paid bona fide after the purchase of this conditionall Estate made to William Worfeild 2. The Consideration is for seven hundred pounds paid before the ensealing and delivery of the Indenture so that if it be admitted that the seven hundred pounds was lent as Interest yet it may be that this was tent so long before the making of the Indenture that the nine hundred forty three pounds to be paid with the Profits of the Land does not exceed the principall debt according to the rate of ten pounds in the hundred And that Vsury shall not be intended without it be expresly found by the Iury vide Coke 10. Rep. the Case of the Chancellor of Oxford fol. 56. Covin shall not be intended or presumed in Law unlesse that it be expresly averred and so was it agreed in the Case between Tyrer and Littleton in the Common Pleas for the taking of an Oxe The Defendant pleaded Not guilty and the Iury found that Thomas Tyrer held certain Land of John Littleton by Rent and Herriot and the 42 of Eliz. did enfeoff John Tyrer his Son and heir who made a Lease to Thomas Tyrer for forty years if he should so long live to the intent that Joyce whom he intended to marry should not have her Dower during his life Thomas died possessed of the Oxe and the Defendant took it for a Herriot And they found
50 l. for every month after such conviction and if default shall be made in any such payment that the Queen may by Proces out of the Exchequer take seise and enjoy all the goods and two parts as well of the Lands Tenements and Hereditaments Leases and Farms of such Offendor as of all other Lands Tenements and Hereditaments liable to such seisures or penalties leaving a third part onely of the said Lands Leases and Farms for the relief of such Offendor his Wife Children and Family And for the more speedy conviction of such Offendors it was enacted That upon the Indictment of such Offendor proclamation shall be made at the Assises or Gaol-delivery where such Indictment shall be made whereby it shall be commanded that the body of such Offendor shall be rendered to the Sheriff of the same County before the next Assises and Gaol-delivery and if such Offender does not appear at the said next Assises and Gaol-delivery that then upon such default recorded the same shall be sufficient conviction of such Offendor as if a Tryal by Verdict had been had and recorded And the Defendants further said that the 19 of March the first of King James the Iustices of Assise and Gaol-delivery at the Assises and the Iustices of Peace at the Quarter Sessions have authority to enquire and determine of all Recusants as well for not receiving the Communion as for not repairing to Church according to the form of the Lawes in such manner and form as the Iustices of Assises and Gaol-delivery may do and also shall have power to make proclamation whereby a Precept shall be had for the rendring the body of the Offender to the Sheriff before the next Assises or Gaol-delivery or the next quarter Sessions c. And they said that before the Information viz. at the Assises and Gaol-delivery held at Westminster 8. August 12 Jac. before Sir Henry Hobard chief Iustice of the Bench and Sir Laurence Tanfeild chief Baron of the Exchequer Iustices of Assise and Gaol-delivery in the County of Southampton the said Katherine by the Oath of Robert Pawlet Esquire c. scil nineteen in all which were sworn and charged to enquire for the King and the body of the County was indicted for that the said Katherine the first of April 11 Jac. was of sixteen years of ago and did not repair to the Parish Church of Porthchalford nor to any other Church Chappell or usuall place of Common Prayer and was there at the Common Prayer and Divine Service at any time within one month next ensuing the said first of April 11 Jac. but did abstain from the same from the said first of April for amonth contrary to the form of divers Statutes c. upon which Indictment at the said Assises and Gaol-delivery publick Proclamation was made that the said Katherine should render her body at the next Assises and Gaol-delivery to render to the King according to the Statute c. at which next Assises and Gaol-delivery the sixth of March 12 Jac. before the said Iustices the said Katherine did not render her body according to the said Proclamation nor appear upon Record whereupon the said Katherine of the Premisses whereof she was indicted was lawfully convicted and yet stands convicted according to the Statute And the Defendants further said that they the aforesaid Term of Easter next after the conviction aforesaid the said Katherine did not pay nor any of them did pay into the Exchequer according to the rate of twenty pounds for every week contained in the said Indictment nor did after the conviction in the said Exchequer so much as then did remain not payd according to the rate of twenty pounds for every month after such conviction but thereof made default which conviction afterwards viz. in the Term of S. Michael then next after the conviction as aforesaid by the said Sir Henry Hubbert and Laurence Tanfeild Iustices c. was extreated and certified into the Exchequer and so there did remain according to the form of the Statute c. and the said conviction yet does remain in full force and this they are ready to aver with that also that the said Katherine named in the Information and the said Katherine named in the Indictment are one and the same person Vpon which Plea Mr. Attorney demurred in Law and the Defendants did joyn And I conceive that Iudgment ought to be given for the King and the Informer against the Defendants In which first it is to be considered that neither the Statute of 28 Eliz. nor the Statute 35 Eliz. which give severall remedies to the King for the monthly forfeiture of twenty pounds given by the 23 Eliz. doe not restrain the Informer but that notwithstanding those Statutes any one may inform against any Recusant for not repairing to Church against the Statute of 23 Eliz. unlesse the King hath first taken his remedie against him for the same offence for that was adjudged by all the Court in Dr. Fosters Case 11 Rep. And as I beleive this will be granted and by the Defendants Councell so I will agree with them that if the Recusant be once convicted and punisht at the suit of the King he shall not be punisht for the same offence again at the suit of the Informer or otherwise for it is unjust to punish an Offender twice for one Crime And therefore the chief matter to be considered in this Case is the nature and force of this conviction against the wife and whether it be such a conviction as will bar the Informer of his Information or not And as to that first the woman is indicted here of Recusancy and proclaimed according to the Statute of 28 Eliz. and she did not render her body whereby she is convicted by this Statute but this conviction is not any Iudgment for the true words of the Statute are That if the party indicted shall not appear but make default after such Proclamation that then upon such default recorded this shall be a sufficient conviction in Law of such Offender as if a Tryall by Verdict had been had and recorded so that such default of appearance is made equivalent to a Verdict by that Statute but not to a Iudgment so that now it is to be understood that the woman in this Case is convicted by Verdict of Recusancy but no Iudgment is given And I conceive that such conviction is no Bar to the Informer For that this is a fruitlesse conviction and such a one as the King can take no advantage of and every conviction that shall make a discharge to the person convicted ought to be a legall and absolute conviction and such a one as thereby the party convicted may suffer the penalty imposed by the Law for such offence And that the King can have no benefit of this conviction is apparent for the remedy given to him by the 28 Eliz. for the penalty is to seise all the Goods and two parts of the Lands and
inter vicinos suos apud Edmunton praedict which is not sufficient for that it ought to be alledged in fact that he made or caused lites discordia and not that he was like to make them And if an Indictment be insufficient although that the party does plead Not guilty and be acquitted yet he shall not have a Conspiracy or an Action on the Case for by such Indictment he cannot be in any danger and 9 Ed. 4. 12. If one be indicted on an insufficient Indictment and he does not take advantage thereof but pleads not guilty and is acquitted and brings a Writ of Conspiracy the Defendants may show how that the Indictment was insufficient so that the Plaintiff was not duly arraigned and they shall have advantage thereof Vide Cook 4 Rep. Vaux Case And 34 H. 6. 9. If the party indicted be misnamed and be acquitted he shall not have a Conspiracy because the Indictment was voyd as to him And Dyer 286. If the offence in the Indictment be pardoned by a general pardon and yet the party pleads Not guilty and is acquitted he shall not have a Conspiracy because he was in no jeopardy And this Case being moved by Chilborn Serjeant and George Crook for the Plaintiff the fourth of February 15 Jacob. I shewed to the Court that the Plea was good for the reasons and authorities afore cited and also that the Indictment was insufficient for the Reasons afore shewed Judgment And therefore Iudgment was given Quod querens nihil caperet per Billam Michaelmas 15 Jacob. Thomas Muschamp Knight and Margaret his wife and Thomas Lock Esq and Jane his wife against Colan Bluet Michael Sampson Edward Jenny and Elizabeth his wife In the Exchequer IN an Action of Trespass for that the Defendants the first of January 14 Jacob. by force and arms the Close of the Plaintiff at Tottenham did break and enter possessionem tenementorum praedict a praedicto primo Januarii usque diem billae scil 20 Maii 15 Jacob. habuerunt tenuerunt custodierunt ad damnum 40 l. Quo minus c. The Defendants pleaded Not guilty The Iury found that before the Trespass Sir William Lock Knight was seised in Fee of the said Tenements and held them in Socage and that he and Matthew Lock his son were Ioynt-tenants in Fee of other Copyhold Lands in Tottenham and that he had issue Thomas Matthew John Henry and Michael That the 15 Martii 1549. Sir William made his Will in writing and thereby did devise these Tenements to Henry and Michael in these words I give to Thomas Matthew Iohn Henry and Michael my five Sons my dwelling House in Bow-lane and my House at the Lock in Cheap and my House at the Bell in Cheap to the intent that they or some of them may dwell in them and keep the Retaining Shop still in my name to continue there Item I give to Iohn Lock my House that Paris dwelleth in I give to Henry Lock my House that Iohn Edwards dwelleth in I give to Michael Lock the three Houses wherein W. B. and P. dwell I give to Henry Lock the House that Kew dwelleth in I give to Matthew Lock the two Houses wherein S. and T. dwell I give to Henry and Michael Lock all my Houses in the Poultry Bucklersbury and St. Iohns and a House that Goodman dwelleth in I give to Matthew Lock all my Houses at Dowgate and in the Vintry I give to Thomas Lock all my Houses in Cheap lying in St. Peters Parish I give to Thomas Lock my Land at Martin and Wimbleton that I may give him except one Farm called Martin Holts which I give to Henry and Michael Lock I give to all my five Sons the half of the Leg Entry which I purchased of late And as touching my Lands at Tottenham my Son Matthew is joyned Purchaser with me of the most and the rest of all my Houses and Land there which is Freehold I give to Henry and Michael Lock upon this condition that if they shall sell it to any man but to Matthew Lock my Son then he to enter upon it as of my Gift by this my Will Item All the Houses and Lands that I have given joyntly betwixt my Sons is That they shall bear part and part-like going out of all my Houses and Lands upon my Blessing as well Freehold as Copyhold to pay to my Wife Elizabeth for Dowry 40 l. every year during her life out of all my Lands and Houses as well Copyhold as Freehold for which Sum I am bound as appeareth by certain Indentures c. and which of my Sons refuseth to bear his part of the aforesaid Sum of 40 l. I will that he or they shall enjoy no part of my Bequest by me to them given in this my Will but my Gift given to him oâ— them to go to the rest of my well-willing Sons which be content to fulfil this my Will and Bond that I am bound in to be performed Sir William Lock dyed seised and Elizabeth his Wife did survive him Henry and Michael did enter into the said Tenements and payd their parts of the said 40 l. to the said Elizabeth Henry dyes and Michael payd his part of the said 40 l. Thomas Lock was Son and Heir of the said Sir William and had issue Matthew Lock his Son and Heir and dyes Matthew the Son of Thomas deviseth the said Tenements to the Plaintiffs habendum from the death of the said Michael for seven years The 28 of July 15 Jacob. Michael Lock dyed seised of the said Tenements And the said Colan Bluet Michael Sampson and Elizabeth Jenny the Defendants are the next Heirs of the said Michael and that the said Bluet Sampson and Jenny in the right of the said Elizabeth his Wife after the death of the said Michael Lock did enter upon whom the Plaintiffs did enter upon whom the Defendants re-entred and made the Trespass But whether the Entry of the Plaintiffs was legal or not the Iury did doubt and if legal they found for the Plaintiff if not for the Defendants And I conceive that Iudgment ought to be given for the Plaintiffs for I conceive that Henry and Michael Loâ—k had but an Estate for their lives by this Devise which by their deaths is ended so that nothing can descend to the Heirs of Michael being the survivor and by consequence the Lease made to the Plaintiffs by Matthew Lock the Heir of the Devisor is good and the Entry of the Plaintiffs is lawful The Case And the Case upon the whole matter I conceive to be this Sir William Lock being seised of certain Land in Fee and being Ioynt-tenant with Matthew Lock one of his Sons of Copyhold Land within the same Town had issue Henry Michael Thomas and two other Sons and by his Will did devise to his Sons divers Lands severally And after says Touching my Lands at T. my Son Matthew is joyned Purchaser with me already
5 Rep. fol. 64. 2. In regard of the quality and therefore it is much debated in Wagons Case if the penalty of 5 l. were reasonable or not but here no certain penalty is set down but left to the discretion of any of the Shoomakers of Exeter and that is against the course of all Laws for when a Law is made it is necessary that the penalty thereof should be known to the end men might not offend But admitting this Order to be good yet have not the Defendants pursued the same in the taking of this Distress and that for two Reasons They have distrained before their time for the Order is That if any refuse to pay the sum assessed that then upon due proof thereof they may distrain c. and then they plead that the refusal of the Plaintiff to pay the same was duly proved before the Master and Wardens which is insufficient for when it is said upon due proof this is intended upon proof by Verdict as in 10 Ed. 4. 11. On a Bond with condition that if the Obligor proves that it was the will of A. that B. shall make an Estate to the Obligor c. this proof must be by Verdict but if it be to be proved before J. S. there it is sufficient to produce witnesses that will testifie the same and so in the fourth and fifth of Queen Mary where Buckland was bound to the Lord Ewers to produce before the said Lord sufficient witnesses to discharge a certain debt due by B. to the Lord and he pleaded that he produced W. and A. before the said Lord and that they proved that he did not ow the said Debt and agreed to be no good Plea because he did not shew how the proof was made before the said Lord. So that this Plea is utterly insufficient 1. Because no such proof can be made before the Master and Wardens as is intended by the Order 2. Because the Defendants have not shewn how the proof was made so that the Court might judg whether it were sufficient or not and so in 22 Ed. 4. 40. the Lord Lisles Case upon a Bond that if the Defendant shewed sufficent discharge of a Rent c. who pleaded that he did offer to shew a sufficient discharge and agreed to be no Plea for he ought to shew what discharge that the Court might judg thereof So in the ninth Report Case of the Abbot of Strata Marcella fol. 34. in a Quo Warranto the Defendant pleaded that the Abbot had and used divers liberties which he could not have without a Charter and resolved no Plea unless by reason of the Statute of the 32 of H. 8. cap. 20. for reviving of Liberties The Order is That upon refusal to pay the penalty and upon proof thereof the Master c. may enter into the House Booth Shop Ware-house or Cellar of the Offendor and there to distrain any of his goods c. And the Defendants have not averred that these goods were taken in any of the said places but onely at the City of Exeter Judgment And at last it was adjudged that the Plea was not good A TABLE OF THE PRINCIPAL MATTERS Contained in this BOOK Action and what words bear Action ACtion brought by a Master for beating his servant not good without saying per quod servitium amisit 48 Where no particular averment need to be in a Declaration for scandalous words 60 Thou and Waterman did kill thy Masters Cook good action ib. Grant to one against whom an action lies not to sue him within a year not good 117 Advowson The nature of it and how and in what manner to be granted 95 96 Affinity and Consanguinity Who shall be taken to be proximus Consanguinieus in a Devise 15 Appearance Where to be in person and where by Attorney 73 74 Where the Husband shall appeare alone and where with his Wife 74 Arbitrement Where the Arbitrement in part shal be a good award for that part although the agreement be to end all controversies 90 91 Authority and Licence To revoke how to be performed 21 Authorities and Licenses strictly to be performed 114 115 License not to be assigned over ib. Ayd Who shall have ayd of the King 87 88 89 Baron and Feme WHere the Husband shall appear alone his Wife being within age and where she shall appear by her Guardian with her husband 74 75 Vid. Appearance Buying and selling Things sold and warranted by the Vendor to be good In what cases good 127 Diversity between things necessary and not necessary as to the warranting of them 128 By-Law How a Custom to make By-Laws to restrain a legal Trade or Art shal be good and how not 140 141 Common WHat priviledge the Owner of the soil hath in a Common and what priviledge the Commoner hath 5 10 Vid. Prescription Remedy for him that is disturbed of his Common 10 Commoner may distraine damage feasant ib. Prescription to hunt and kill Conies in a Common not good 11 Prescription of Common in a Forest Vid. Prescription Condition and Limitation WHat time shall be limited in Law to make an estate upon Condition 41 Conspiracy Where Jurors cannot be said to be guilty of Conspiracy Vid. Jury Conspiracy cannot be where the Indictment is insufficient 132 Copyhold What shall be taken to imply an admittance 82 Copyholder necessary to be admitted and what estate he hath without admittance 82 83 Where the estate surrendred remains until admittance 84 Court and Processe in Courts Records of a Court the effectuall proofs of the Law of things tried in that Court 21 Presidents and Costome of a Court makes a Law in that Court ib. Devises Testator and Executor c. WHere words of limitation comming after the estate in a Devise shall abridge the estate devised 1 2 3 Devise to a man and his heirs quod si contingat c. where those words shall make a limited fee or estate Tail or other estate 3 Where the Act of the Executor shal not be said to be the Act of the Testator 47 Where an Executor shall not have choice to take as a Devisee 54 Where the assent of the Executor to the devise of the Land shall not be accounted any Execution as to the Devise of the Rent out of the same Land and where otherwise 55 Where a perpetual charge devised to be paid out of Land shall make the party that is to pay the same tenant in fee-simple 85 How far the intent of the Devisor shall be admitted and how largely observed 85 105 106 135 Dower Certainty ought to be in the demand of Dower as wel as in the writ 56 Ecclesiastical Persons WHere the confirmation of the Patron and Ordinary of a charge made by the Incumbent is good and where not 95 Leases made by the Incumbent and confirmed by Patrons or others where good and where not ib. Leases made by the Incumbent which are void and what are voidable and
held and have accustomed to have in the aforesaid two hundred acres of pasture and a hundred of wood parcel of the aforesaid Tenements called the Mannor of Colwick belonging to the said Mannor of Colwick enclosing ditching and hedging at their will and pleasure with all liberties priviledges and Franchises to the said Park belonging and in the said Park from the time aforesaid have used to have and to keep Deer and from time to time to constitute and appoint a Keeper of the said Deer in the said Park who from the aforesaid time have used to keep the same ac ad venandum fugandum occidendum capiendum asportandum omnes omnimodas damas in eodem parco de tempore in tempus existentes ita quod nullus forestarius Domini Regis Forestae praedictae nec aliquae aliae personae quaecunque intromittantur ad venandum fugandum in parco praedicto sine licentia praedicti Johannis avi And set forth that the said John the Grandfather died seised whereby the said Mannor c. descended to Sir John Byron his Son And that Hillary 3. Jacobi a Fine was levied between Sir Peter Leigh and other Plaintiffs and Sir John Byron the son Defendant of the said Tenements to the use of the said Sir John for life the remainder to the Defendant in tail And that the seventeenth of December 10. Jac. did let the Premisses to the Defendant for eighty years if the Lessee should so long live wherby the Defendant the 26. Mar 11. Jac was and is thereof possessed did aver that the Mannor of Colwick in the information and the said Messuage a hundred acres of Land two hundred of Meadow three hundred of Pasture and a hundred of Wood to be the same and did also aver the life of the Lessor The Attorney Generall for the King did reply that before the information sc 9 Octobr. 19. Jacobi and long before and continuing after untill the exhibiting of this information the Defendant the Park and Tenements aforesaid with Ditches Hedges and Fences had so sleightly inclosed that the Kings Deer of the aforesaid Forest for defect of sufficient inclosing of the Park and Tenements aforesaid through the default of the Defendant did enter and the Deer of the King into the said Park and Tenements aforesaid for the cause aforesaid entring the Defendant did very unjustly kill the said Deer in the said Park and Tenements aforesaid The Defendant did maintain his Bar and traversed without that that the Defendant the Park and Tenements aforesaid with such sleight Fences Hedges and Ditches inclosed did keep the same Quod Damae Regis de forresta praedicta de tempore in tempus intra tempus praedictum in parcum tenementa praedicta pro defectu sufficientis inclusurae parci tenementorum praedictorum in defectu defen intraverunt absque hoc quod Defendens Damas Regis de forresta praedicta in parco tenementis praedictis pro defectu sufficientis inclusurae parci tenementorum praedictorum in defectu defendentis minus juste interfecit modo forma prout c. Whereupon the Attorney demurred And I conceive that Iudgment ought to be given for the King First Because the plea in Bar and the Rejoynder made by the Defendant is altogether insufficient for divers causes Secondly As to matter in Law And as to the first The Quo Warranto doth suppose that the Defendant did use the liberties there mentioned within the Mannor of Colwick being within the meets and bounds of the Forest of Sherwood and within the Reguards of the said Forest and the Defendant did know this to be within the meets and bounds of the said Forest but does not answer whether it be within the Reguards or not for it may be within the meets and bounds of the said Forest and yet not within the Reguards as if the Mannor were disforested by Carta forestae because it was a Subjects Mannor and not the Kings yet it remains within the meets and bounds of the said Forest but not within the Reguards for now by the disforesting it is made purlue and not subject to the Reguards and Lawes of the Forest as to the Owner of the Mannor Vide Carta Foresta fol. 1. and yet notwithstanding this Statute if the King had granted this Mannor to be free of the Reguards or out of the Reguards yet is it still within the meets and bounds of the said Forest Secondly The Dendant makes Title to the liberties whereof Sir John Byron his Grandfather was seised in Fee viz. of a Messuage a hundred acres of land two hundred of Meadow three hundred of Pasture and a hundred of Wood in Colwick now and time out of mind called the Mannor of Colwick Quodque ille omnes illi Quorum statum idem Johannes habuit in tenementis praedictis habuerunt tenuerunt habere consueverunt in praedictis 200. acris pasturae 100. acris bosci parcellis praedictorum tenementorum vocat mannerium de Colwick praedictum parcum tenementa praedicta vocat mannerium de Colwcik spectant pertinent c. So that the Defendant doth not prescribe but doth alledge only that Sir John Byron and those whose estate he hath have used to have a Park the which is no Title to the Park for that ought to be time out of mind Thirdly The Defendant doth claim to have a Park in the aforesaid two hundred acres of pasture and a hundred acres of wood whereas there is no speaking of two hundred acres of pasture before and therefore he ought to have said in two hundred acres of pasture parcell of the said three hundred acres Fourthly The Defendant doth not answer to the killing of the Kings Deer of the Forest but doth only justifie the killing of all Deer time out of mind being in the said Park Fifthly The Rejoynder is a manifest departure from the Bar for in the Bar he claimeth to have a Park ditched and hedged Per voluntatem eorum inclusum so that by this pretence he may keep the Park with such low Hedges as he will and yet in his Rejoynder he doth traverse absque hoc that he kept the Park adeo parvis sepibus Fossatis quod Damae Regis de foresta praedicta in parcum praedictum pro defectu inclusurae intraverunt absque hoc c. So that the Defendant by his Rejoynder doth make an Issue upon that which he doth justifie in his Bar and doth upon the matter deny in his Rejoynder the matter alledged by him in his Bar. And as to the matter in Law I conceive that the Defendant cannot prescribe to have a Park in such manner as he pretendeth for that such prescription is quite contrary to the nature of his Royall Franchise of his Forest and is to the destruction of it for a Forest is a Royall Franchise so that regularly none can have it but the King as it was adjudged in this Court in a Quo Warranto
the Land in T. should pass to them especially because they were purchased as it might very well be presumed with the mony of the Devisor and he was reputed owner thereof but these words make no Declaration as to the Estate which he intends to demise to Henry and Michael The Condition or limitation annexed to the Devise in these words Upon condition that if they sell it to any man but to Matthew Lock my Son then he to enter upon it as of my gift by this my Will and I conceive that this clause does not shew any intent of the Devisor to enlarge the Estate first limited to Henry and Michael or to give an Estate in Fee to them for it is not if they alien in Fee or in Tail or if they or their Heirs do alien which words or any words to such intent would have declared a manifest intention that the Devisees should have a Fee-simple but here an alienation in general onely is restrained which ought to be taken for a legal alienation and such a one as they may make by reason of the Estate devised to them And that it shall be so intended first it is to be considered that this condition is a restraint annexed to the Estate and is as a Convinct to the Estate and therefore cannot be properly more large then the Estate it self for it is a Rule that every restraint or exception in an Assurance ought to operate upon the Estate or the thing before granted as in the Comment 370. Zouches Case An exception is an exemption of that contained in the general words and if it be not contained in the generality it can be no exception in the specialty and therefore if one doth lease W. acre excepting B. acre the exception is vain This exception of alienation is more proper to be annexed to an Estate for life then in fee for he who makes a Lease for life or years may restrain the Lessee by condition that he shall not alien but the Feoffor cannot restrain the Feoffe from aliening as in Littleton 84. If a Feoffment be made on condition that the Feoffee shall not alien the Condition is voyd for the Feoffee hath power to alien to whom he will for if that condition were good that would take from him the power which the Law gives him which would be against Reason but if the Condition be that he shall not alien to such a person naming the person or any of his Heirs or his issues this is a good Condition because it take not away the power to alien in Fee And Vernons Case 4 Rep. foâ— 3. An Estate in Fee conveyed by the Husband or his Ancestor to a woman for her Ioynture is not a Ioynture within the Statute of 11 H. 7. which restrains alienations made by women for to restrain such an Estate as cannot be aliened is repugnant and against the Rule of Law and therefore not within the intention of the Act. But it hath been objected on the other side 1. Object That this Condition is not voyd because it doth not restrain all their power but leaves them to the liberty to alien to Matthew 2. If the condition be voyd yet it is sufficient to declare the intent of the Devisor that a Fee should pass And as to the first I conceive that the condition is voyd Answer for to restrain generally and that he shall not alien to any but to J. S. is all one for then the Feoffor may restrain him from aliening to any except to himself or such other person by name whom he may well know cannot nor never will purchase the Land So that this condition shall take away all his power and shall make a perpetuity in the Feoffee which is quite contrary to Law neither is there any authority to warrant this restraint for Littleton leaves the Feoffee at liberty to alien to any except to such a one in particular And as to the second I do agree That if the condition to restrain the alienation had been expresly to restrain the Devisees and their Heirs or to have restrained from aliening in Fee or in Tayl or for anothers life although the condition had been voyd yet had it been sufficient to have shewn the intent of the Devisor and to have caused an Estate in Fee to have passed And therefore I do agree to the case in the 9 Rep. fol. 127. where one devised to his Wife for life and after her decease his Son William to have it and if William shall have issue male that he shall have it and if he have not issue male his Son S. shall have it and if he hath issue male his Son shall have it with like Remainders to his other Sons and my Will is If any of my Sons or their Heirs males issues of their bodies alien then the next Heir to enter c. And it was resolved That the Son should have an Estate in Tayl by this Devise First by reason of these words If he have no issue male which is as much as to say iâ— he dye without issue male Secondly because he and his Heirs males are restrained to alien for every restraint especially in Wills does imply that the party in case he were not restrained had power of the thing restrained And so Bakers Case Hillary 42 Eliz. Rot. 143. A Devise to the Husband and Wife the Remainder to their two Sons upon condition that if they or their Heirs go about to alien c. is a Fee-simple also for the Heirs being restrained to alien does shew fully that the Heir shall have the Lâ—nd for otherwise he cannot alien it But here in our condition there are not any words to shew the intent of the Devisor that an Estate in Fee shall pass but the Devisees are restrained to alien generally which as already I have shewed is more agreeable to an Estate for life then an Estate in Fee-simple at the least he does not shew any certain intent that the Devisees shall have an Estate in Fee but that remains dubious and therefore the safe way is to take the same according to the Rules of Law The third clause to explain the intent of the Devisor in this case is the clause of the Charge imposed upon the Land by the Devisor viz. Item All the Lands I have given joyntly betwixt my Sons is that they shall bear part and part-like going out of all my Lands as well Free as Copyhold to pay to my Wife Elizabeth for Dowry 40 l. every year during her life out of all my Lands c. And I conceive that this clause makes nothing as to the enlargement of the Estate and yet I do agree 29 H. 8. Testament 18. 4 Ed. 6. Estates 78. That if one devise Land to another paying 20 l. or another sum in gross this is a good Devise in Fee but it is otherwise when the Land is devised to one paying an annual Rent or bearing an annual charge with the
profits thereof as in Colliers Case 6 Rep. where one devised Land to his Wife and with the profits that she should bring up his Daughter and that after her death the Estate should remain to his Brother paying to other persons 40 s. and the value of the Land was 3 l. per annum and agreed there that the Brother had a Fee-simple and this diversity was resolved in that case That if the Devise had been to the Brother to the intent that he should maintain his Daughter with the profits or pay out of the profits thereof so much to one and so much to another that this is but an Estate for life for he is sure to have no loss so is it if it be to pay certain sums yearly under the value of the Land for he may pay it out of the profits and is sure to be no loser And this is in effect our very case For first the Charge is imposed for Dower which cannot be intended to exceed the annual value of the Land Secondly it is to be payd out of the Land and therefore there is no charge imposed upon the person of the Devisee but onely upon the Land devised to him so that he takes the Land with this charge and when his Estate determines in the Land yet the charge does always remain upon the Land and the Devisee is discharged thereof and therefore this charge may as well be if he have an Estate for life as if he have a Fee-simple And as to that in Borastons Case 3 Rep. fo 20. b. between W. Allock and Hammond where a Copyholder devised his Land paying to his Daughter and to each of his younger Sons 40 s. within two years after his death and surrendered accordingly and dyed and agreed that the Devisee had an Estate in Fee although the annual profits exceeded the mony that was to be payd and the Reason is plain for it is not limited to be payd out of â—â—e Land or profits but is a payment in gross and it may happen that the Devisee may dye before he can receive so much of the profits And afterwards viz. Trinit 17 Jacob. All the Barons scil Tanfield Bromley and Denham delivered their Opinions severally That Henry and Michael Lock had an Estate onely for their lives because there is no express words in the Devise to make any greater Estate to pass and the condition or clause of the charge imposed by the Wtill does not necessarily imply that they should have a greater Estae then for life for such Estate may satisfie both these clauses as well as an Estate in Fee and the condition is more proper to be annext to an Estate for life then in Fee Judgment Wherefore they resolved That Iudgment should be given for the Plaintiffs but because Sir Thomas Muschamp one of the Plaintiffs dyed hanging the Action no Iudgment could be enter'd Trinit 16 Jacob. Wood against Searl and Jeo IN an Action of Trespass for that the Defendants the 16 of December 15 Jacob. ten Hides of Leather of the Plaintiffs amounting to the value of 10 l. at Tiverton did take and carry away ad damnum 20 l. c. The Defendants as to the force and arms pleaded Not guilty and as to the residue they said that the City of Exeter is and time out of minde was an ancient City and that within the said City there is and for all the said time was a Society of the Art of Cordwainers incorporate by the name of The Master Assistants Wardens and Commonalty of Cordwainers of the City of Exeter and that the said Master Assistants and Wardens have used for all the said time to make By-laws for the government and profit of the said Society and to impose reasonable Fines and punishments upon the breakers thereof And that the 24 of July 44 Elizab. the Master Assistants and Wardens did ordain That no person Burgess or Foreigner not being a Brother of the said Society should make sell or offer to sell or procure to be sold within the aforesaid City of Exon the County or liberty thereof any Boots Shooes Pantofles Pumps or Startops or any other wares belonging to the said Art under pain of forfeiting to the said Master and Wardens for the time being for every offence such sum not exceeding 40 s. as shall be assessed by the Master Wardens and Assistants or the greater part of them and that if any person of the said Society or any other exercising the said Art or any thing concerning the same inhabiting within the said City or the County or liberty of the same who shall break the said Order shall refuse to pay such sum as shall be assessed upon true proof first thereof had of the breach of the said Order that it shall be lawful for the said Master Assistants and Wardens or any three of them taking with them a Constable Bayliff or Serjeant of the Mace or other fit Officer of the Kings to enter into the House Booth Shop Warehouse or Cellar of such person so refusing and there by the discretion of the said Master Assistants and Wardens or the greater part of them to distrain any of their goods then being within the said Houses c. for the said sums forfeited so that it doth not exceed the treble value of the sums forfeited and to detain the same Yet nevertheless if the owner within thirty days shall satisfie the penalty then they shall redeliver the goods And if he doth not satisfie that then the said Master Wardens and Assistants or the greater part of them have power to appraise the goods taken by the oath of six persons and thereupon to sell them and to restore the surplussage to the owner And the Defendants said That at the said time in which c. and time out of minde there was and ought to be a Master two Wardens and twelve Assistants of the said Society within the said City and no more and that the said Edward the sixth of December and before and ever since was Master and the said William and Thomas Payn were Wardens That the 29 of July 15 Jacob. the Plaintiff at the said City then being an Inhabitant within the said City and no Brother of the said Society did make divers Shooes and them there to sale did expose and that the said Master and Wardens and one J. G. T. K. R. J. W. T. K. T. C.G. and J. G. being seven and the major part of the said Assistants the thirtieth of July the 15 Jacob. did impose upon the Plaintiff 33 s. 4. d. for the said offence And they said further that the Plaintiff committed the like offence the seventh of October 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and Assistants and the like offence the 20 of Novemb. 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and eight of the Assistants and the like offence the second of December 15 Jacob. and 33 s. 4