Marchioness had devised all her Lands and had not left any thing to her Heir for which Case the Heir of the Marchioness entred into the third part of the Manor of Cauford of which the Lease upon which the Ejectione firmae was brought was made by the Lord Mountjoy to Insley and into the third part of the residue of the whole land now his meaning was That if the rent was not well passed by the name of the Manor then the same descended to the Heir which was sufficient for him For the Special Verdict found also That the rent was the third part of the value of the whole Land of the Marquess So that thereupon it may be collected That if a man hath three Manors some of them holden in Capite and of equal value and he deviseth two of them and suffereth the third to descend that the Devise is good for every part of the two Manors and the Heir shall not have the third part of each Manor Pasc 28 Eliz. In the Common Pleas. CLXIII Spring and Lawsons Case ONe recovered in an Ejectione firmae and afterwards the Defendant made a new Lease for years and he who recovered ousted him and he brought an Ejectione firmae and the other pleaded the former Recovery It was holden a good bar by all the Iustices but Windham and Periam and by them the same is no Estoppel for the Conclusion shall be Iudgment if Action and not Iudgment if he shall be answered And although that it be an Action personal and in the nature of a Trespass yet the Iudgment is quod habeat possessionem termini sui during which Term the Iudgment is in force it is not reason that he should be ousted by him against whom he recovered for so Suits should be infinite and by Rhodes an Entry pendent the Writ shall abate it CLXIV Hil. 29 Eliz. In the Kings Bench. AN Action of Covenant was brought against one who had been his Apprentice The Defendant pleaded that he was within age The Plaintiff maintained his Action by the Custom of London where one by Covenant may bind himself within age Exception was taken to it that that was a Departure For 18 R. 2. an Infant brought an Action against his Guardian in Socage who pleaded that the Plaintiff was within age The Plaintiff did maintain his Declaration That by the Custom of such a place an Infant of 18 years might bring accompt against his Guardian in Soccage and it was there holden to be no departure Wray Chief Iustice was of Opinion that it was no departure for he said It should be frivolous to shew the whole matter in his Declaration viz. That he was an Infant and that by the Custom he might make a Covenant which should bind him But Quaere of the Matter and of his Opinion for that many learned Lawyers doubted much of it And vide the Case in 19 R. 2. of the Guardian in Soccage Mich. 29 30 Eliz. In the Kings Bench. CLXV Savage and Knights Case ERror was brought upon a Iudgment given in Leicester in Debt Tanfeild assigned Error because in that Suit there was not any Plaint for in all Inferior Courts the Plaint is as the Original at the Common Law and without it no Process can Issue forth and here upon this Record nothing is entred but only that the Defendant Summonitus fuit c. and because the first entry ought to be A. B. Queritur versus C. Clench a Plaint ought to be before any Process issueth and the Summons which is entred here is not a Plaint and for that Cause the Iudgment was reversed It was said That after the Defendant appeared a Plaint was entred But it was answered That that did not help the matter for there ought to be a Plaint out of which Process shall issue as in the Soveraign Courts out of the Original Writs 28 Eliz. In the Common Pleas. CLXVI Grindal Bishop of Yorks Case GRindal Archbishop of York made a Lease for one and twenty years another Lease for years of the same Land being in being not expired by four years and dyed and in time of vacation the Dean and Chapter confirmed it Clench It is a good confirmation A Bishop makes a Lease for years reserving the ancient rent but where it was payable at four Feasts of the year it is now reserved payable once in the year the same is within the Letter of the Statute but not within the intent the same Law if the Rent before was usually reserved to be paid upon the Land now it is reserved to be paid at any far remote place And he said that although his lease was in possession yet not to take effect before the four years of the former Lease are expired cannot be said an Estate within the Statute of 1 Eliz. whereby any Estate may pass before the commencement of it for he to whom it was made had but a right to have the Land and he could not surrender And he held that the second Lessee should pay the rent as well by the Contract as by the Estoppel Periam At the Common Law a Bishop with the Confirmation of the Dean and Chapter might have made a Feoffment Gift in Tail and a Lease for any Term of years and he spake much What shall be said the Possessions of a Bishop And therefore if a Bishop disseiseth another of certain Lands and makes a Lease thereof under the Seal of his Bishoprick it shall be now his Seal and it shall be his election in what capacity he will take and then this Land is to be reputed parcel of the Possession of his Bishoprick Mich. 29 Eliz. In the Common Pleas. CLXVII Hoo and Hoes Case JOhn Hoo brought a Writ of Intrusion against Richard Hoo depending which Writ the Demandant prayed Estrepement and had it and declared upon it scil That the Tenant after the Prohibition fecit Vastum Estrepementum in prosternendo c. To which the Tenant pleaded Not Guilty But the Plea was not allowed by the Court for there is no Issue in this Case but he might to plead Quod non fecit vastum c. after the Prohibition 29 Eliz. In the Common Pleas. CLXVIII Clinton and Bridges Case DEbt The Condition was for performance of an Award which was to pay 10 l. to the Plaintiff and to do divers other things The Defendant pleaded Quod perimplevit Arbitrium and shewed how the Plaintiff assigned for a Breach that the Defendant had not paid the 10 l. The Defendant rejoyned that he rendred it to the Plaintiff and he refused it It was the Opinion of Dyer that the same is a Departure for in the Bar the Defendant pleads that he hath performed the Award and shews how and now in the Rejoynder a Tender and Refusal which is not a performance of the Award although it is not any Breach of it 29 Eliz. In the Exchequer CLXIX The Bishop of L's Case Tenures THe Case of the Bishop of
Defendant And further found That as it appeared by an Exemplification out of the Exchequer That it was a Chauntry of H. G. and that Tho. was then a Chauntry Priest there and that the said Chauntry with all the Profits and Obits were 6 l. 13 s. 4 d. the tenth of which is a Mark which was payable to the King 26 H. 8 And that by another Exemplification in 2 E. 6. it appeared that the Dean and Chapter of Pauls certified to the Commissioners of the said King Cantaria H. G. A. B. Executores Testamenti H. Gilford by force of the said Will 7 E 2. granted and assigned to the Dean and Chapter aforesaid and their Successors the said Lands and Tenements to the intent that they should maintain for ever a Chaplain to pray for the Soul of the said H. G. and all Souls And the Incumbent of the said Chauntry is one G. and that the said Executors granted to the Mayor and Commonalty of London the Rent of 20 s. out of a Shop in Cheap with the Patronage of the said Chauntry to the intent that they should maintain the Chauntry accordingly and recited all the said Lands and Rents assigned and that the Rent of them was 14 l. 1 s. the Salary of the Priest 6 l. 13 s. 4 d. for Bread and Wine 3 s. 4 d. the Chamberlain of London 20 s. being deducted and so there remaineth 4 l. 3 s 4 d. And that the said Chaplain received above his Wages yearly by reason of the said Obit other Profits as Procession pence and Feeding days 33 s. 4 d. And found further the Act of 1 E. 6. and further said That the Church of St. Paul at the time of the said act was a Cathedral Church and the Fee of the Bishop of London and that the profits and rents devised and ordained to the said Dean and Chapter were in the said Certificate of 2 E. 6. and that the said Lands at the time of the making of the said Act and for five years before were not in the actual possession of the said King H. 8 nor E. 6. and that by force of the Statute of 1 E. 6. the said Lands came to the possession of the said King as Chauntry Land and that the said King granted it to Tho. Butcher in Fee who bargained and sold the same to Dobson who thereof enfeoffed Thoragill upon whom the said Nicholas Wilford entred claiming his Lease And further found That 45 s. parcel of the said rent of 9 l. due at the Feast of St. John Baptist 11 Eliz. for the said Capital Messuage was arrear by half a year after the said Feast and was lawfully demanded by the said Rich. Thoragill and for not payment he re-entred and let the same to Tho. Buttell c. Bell. The Executors by this Devise have not a bare authority but an interest for if one seized of Lands in Fee deviseth That his Executors grant a Rent-charge to one in Fee out of his said Lands by that Devise the Executors have a Fee-simple in the Land otherwise they could not make such a Grant So here in the Case in question and also by the same reason the Executors have a Fee-simple in the Land for otherwise they could not grant a Rent in Fee nor the Land to the Dean and Chapter in Fee by which the Chaplain in perpetuity ought to be found And although but one Chauntry was erected where three were intended but the Land devised was not sufficient for all three so that now by the erecting of one Chauntry only the Executors performed the trust as near to the intent of the Devisor as it could be and as the Land devised might extend unto it is not material if here be a Condition or a Confidence in the words of the Grant to the Dean and Chapter ad inveniendum c. for if it be a Condition and broken no advantage shall be taken of it for it is out of the Statute and if it be a Confidence then it is performed as near the intent of the Devisor as it might be and the Condition being performed although not exactly yet so near as it may be it is well enough performed As a Feoffment upon Condition that the Feoffee shall make a Gift in tail to Husband and Wife and the Heirs of the Body of the Husband the Husband dyeth now the Gift cannot be modo forma and therefore if it be it may be scil as near the intent of the parties as it may be it is good and therefore if the Land be given to the wife for life without impeachment of waste the remainder over it is sufficient in case of a Trust and Confidence 1. It was moved If here be any Chauntry in the Case And a Chauntry is nothing else but a Sustentation for a Priest that chaunts in a place certain for the Souls of the dead And Chauntries are in two sorts the one incorporated as by the King by his Letters Patents the other not incorporated as our case is And truly the greatest number of Chauntries were not corporal but were Chauntries but in reputation and not Revera but yet such Chauntries in reputation are within the Statute which see by the words of it accepted taken or reputed as Part or Member of any Chauntry It hath been Objected That nothing passeth to the King by that Statute but that which is parcel or belonging to the Chauntry but this Land is not parcel nor belonging to any Chauntry for all the Land is in the Dean and Chapter As to that we ought to have regard unto the intent of the Devisor which was to make the Land a Chauntry And so in the time of Hen. 8. it was retorned in the Exchequer for the First-fruits of the Chauntry of Hen. Gilford and we ought not to respect the Conveyance it self which was made by the Executors to the Dean and Chapter but also the disposition of the Devisor so as both ought to be put together if they be not contrary one to the other and if they be then the last shall be taken And when the intent of the Devisor may stand with the act of the Executors to construe That the Land shall make the Chauntry according to the intent of the Devisor for the Executors have given all the Land to the Dean and Chapter to find a Priest and things belonging to a Chauntry and the Executors have given the said Land to the said intent and the assignment of the special portion out of it is but a shewing how the profits of the Lands shall be bestowed For I conceive That the Land at the time of the disposition aforesaid was not of any better value than it was appointed to be imployed as aforesaid and if the Dean and Chapter by their industry have made and improved it to a greater value they shall take advantage thereof till it be given to the King by the Statute and it shall not be said properly a Rent but
being sown the Executors of A. take the Corn it was holden the Obligation was not forfeited for that by the Laws the Corn did belong to the Executors II. Pasc 23 Eliz. A Man possessed of a Term devised the same to his Son when he came to the age of 18 years Devise and that his Wife should have it in the mean time and made his Wife his Executrix and died before the Son came to the age of 18 years the Wife took Husband It was holden that she should have the Term as Executrix till the Son came of the age of 18 years III. Mich. 23 Eliz. A Man made a Feoffment in Fee sub Conditione ea intentione that his Wife should have the Land for her life the remainder to his younger Son in Fee The Feoffee died without making such an Estate the Heir of the Feoffor entred it was resolved that it was not a Condition but an Estate which was executed presently according to the intent Trin. 8 Eliz. IV. Manning and Andrews Case Vide 1 Leon. 256. 1 Leon. 345. Fine levied a Bar. HVsband and Wife Donees in special tail the Husband levied a Fine of the Lands It was holden if the proclamations pass in his life time or before the Wife by her entry had avoided the Fine the Issue should be barred otherwise if the Husband had died before the proclamation had passed 27 Eliz. In the Common Pleas. V. Buckhursts Case Extinguishment LEssee for 10 years granted a Rent Charge to his Lessor for the said years the Lessor granted the remainder in Fee to the Lessee for years It was the opinion of the Iustices that the rent was gone because the Lessor who had the rent was Party to the destruction of the Lease which is the ground of the rent 26 Eliz. VI. Pulmants Case Assumpsit ONe who is indebted promiseth to pay it upon request in an Action upon the Case upon that Promise the Party needs not to express the Assumpsit with the request it being an old debt but otherwise it is where there is such a promise without any duty precedent VII Hill. 26 Eliz. In the Kings Bench. Assumpsit A Man in consideration of 20 l. paid him promiseth to assign to J. S. the Lease of a Stranger It was adjudged that an Action would lie upon such a promise because the Assumor might purchase the House and then assign it Hil. 26 Eliz. In the Kings Bench. VIII Rawson and Browns Case A. Being in prison at the suit of B upon an account Assumpsit and in custodia Marescalli The Marshal suffers him to escape A. being at liberty promiseth to B. that if he will permit him to be at large and further if he do such an act that he will pay to him 10 l. which he doth not pay whereupon B. brings Assumpsit against him it was adjudged that the Action would not lie for that both the considerations ought to be proved and A. was at large before 31 Eliz. In the Kings Bench. IX Strangborough and Warners Case NOte Assumpsit That a Promise against a Promise will maintain an Action upon the Case as in consideration that you do give to me 10 l. on such a day I promise to give you 10 l. such a day after 31 Eliz. X. Escrigs Case IF an Executor promiseth to a Creditor Assumpsit that if he will forbear to sue him until such a time that then he will satisfie the Creditor his debt in that case the Execuor is liable to pay the debt of his own goods adjudged 30 Eliz. In the Kings Bench Rot. 30. XI Kirkman and Reignotts Case A Lease was made to two Habendum to them Occupant and to two others for their four lives and the longer liver of them It was resolved that the two named in the Habendum should not take any thing and that if the two first die there should be no Occupancy for the lives of the two in the Habendum was intended an Estate to them and not a Limitation of the Estate of the first two Pasc 30 Eliz. XII Barkhouse Case DEbt against Lessee for years for rent Forfeiture The Defendant claimed Fee in the Land whereas he had no Fee It was resolved that it was a forfeiture XIII Pasc 31 Eliz. In the Common Pleas. Avowry IT was resolved by the Iustices that an Avowry might be for part of a Rent Mich. 28 Eliz. In the Kings Bench. XIV Strangden and Burnets Case IN an Action of Trover and Conversion of Goods to his proper use in Ipswich The Defendant pleaded that the Goods came to hands in Dunwich in the same County and that the Plaintiff gave unto him all Goods which came to his hands in Dunwich Pleadings absque hoc that he is guilty of any Trover or Conversion in Ipswich It was ruled to be a good manner of pleading by reason of the special Iustification Vide 27 H. 6. But where a Iustification is general the County is not traversable at this day Vide 19 H. 6 7. 24 Eliz. In the Common Pleas. XV. Infant AN Infant made a Lease for years rendring rent and when he came to his full age he said to his Lessee God give you joy of it It was holden by Mead Iustice that thereby the Lease was affirmed and made good Pasc 25 Eliz. XVI Fullers Case ONe is bound to pay his rent at a day certain payment before the day adjudged doth not discharge him 29 Eliz. In the Kings Bench. XVII Carter and Martens Case Payment TWo are bound for a Debt the Principal makes the Surety his Executor who pays the Debt generally Quaere if it shall be as Executor or as Obligor XVIII Pophams Case Bargain and Sale. LAnd was bargained and sold the Bargainee levies a Fine of the Lands and afterwards within the six months the Deed is enrolled It shall pass by the Fine and the Conusee shall have the Land for the Enrollment shall relate to the time of the bargain and sale 18 Eliz. XIX Henninghams Case IT was adjudged in this Case that he who is special Heir by the Custom as of Borough English Land shall have the Writ of Error and not the Heir at the Common Law. Hil. 19 Eliz. Adjudge XX. Parry and Herberts Case LEssee for years upon Condition that he shall not grant over the Land by Will or otherwise Condition and he deviseth the same to his Executors who except it only as Executors and not as Devisees It was holden that the Condition was broken because he had done as much as in him lay to have granted it over In the Exchequer XXI Sir Thomas Hobbies Case A Man hath issue two Sons and is attainted Heirs the eldest Son purchaseth Land and dyeth without issue the second Son shall inherit the Land as Heir to him notwithstanding the attainder of the Father because the blood is not corrupted between the two Sons
Mich. 29 Eliz. In the Kings Bench. XXII Barton and Edmunds Case AN Infant and another were bound for the debt of the Infant Infant the Infant at his full age promised to save the other harmless the Infant died It was adjudged that upon this Assumpsit Assumpsit an Action upon the Case did lie against his Executors XXIII Mich. 36 Eliz. In the Kings Bench adjudged IF an Executor promise to pay a Debt when he hath not Assets It was the Opinion of all the Iustices that no Action upon the Case lieth against him but if he hath assets then it is otherwise And the Heir if he hath nothing by descent is not subject to an Action upon such a promise Mich. 28 Eliz. XXIV The Lord Pagets Case Indictments AN Indictment was Quare vi armis clausam A. B. apud D. fregit whereas A. B. then had a Lease at Will of the land the matter was for digging of Turfs the Indictment was holden to be good XXV 25 Eliz In the Kings Bench. Indictments INdictment De uno Equo where it was a Gelding holden not good But otherwise it is where Trespass was brought de Equo castrato and the Iury found a Gelding and adjudged for the Plaintiff 26 Eliz. XXVI Tucker and Nortons Case Execution AN Infant in Execution upon condemnation in Debt sued a Writ of Error his Father and Brother bailed him It was said the Recognisance shall be by them two only that the Infant shall appear and if the Iudgment be affirmed that they pay the mony and not that they shall render his body to prison for when he is once discharged out of Execution he shall never be in Execution again XXVII Mich. 29 Eliz. In the Common Pleas. Nobleman Recognizance IT was holden by the Iustices That a Nobleman shall be bounden with his bail in a Recognizance that he shall render his body and that upon the Statute of 13 E. 1. If he hath not goods or lands his body shall be taken in execution for the Law in such case excepts only Clarks XXVIII Hil. 26 Eliz. In the Exchequer Felo de se THe Queen granted to one Catalla utlagatorum felonum de se within such a Precinct One indebted to the Queen having Goods is felo de se within the Precinct Resolved the Queen should have the Goods to satisfie her debt 26 Eliz. In the Kings Bench. XXIX King and Cottons Case LEssee for life the remainder in tail the remainder in fee Disseisin Lessee for life makes a Deed of Feoffment of the Land and delivers it and makes a Letter of Attorney to another to deliver Seisin who enters and makes Livery accordingly adjudged that the Attorney is a Disseisor 26 Eliz. In the Kings Bench. XXX Gerrards Case THe Owner of the Lands severed his Tythes Prohibition and a stranger took them and carried them away The Parson libelled in the Spiritual Court against the Owner of the Land for the Tythes who thereupon prayed a Prohibition It was adjudged no Prohibition should issue in this Case for that he might plead the same matter in Bar in the Spiritual Court. Hil. 31 Eliz. XXXI Willet and Wilkinsons Case NOte it was adjudged Surrender that if Lessee for years take another Lease from the Guardian in Soccage that the same is a Surrender of his first Lease Note the second Lease was made in the name of the Guardian Trin. 26 Eliz. XXXII Ould and Conyes Case IT was adjudged Commoner Conies that a Commoner cannot kill Conies which destroy his Common though he hath not any other remedy Trin. 29 Eliz. In the Kings Bench. XXXIII Mayes Case ONe sent a Letter by a Carrier to a Merchant for certain Merchandizes to send them to him receiving a certain sum of mony the Merchant sent the Merchandizes by the Carrier without receiving the mony It was the opinion of the Iustices that the Buyer should not be charged for the mony for it was a conditional bargain and it was the folly of the Merchant to trust the Carrier with the Wares Mich. 30 Eliz. XXXIV Haltons Case A Recognizance was acknowledged before Sir N. Read one of the Masters of the Chancery Recognizance Inrollment and the Recognizor died before it was enrolled it was doubted if it might be enrolled at the Petition of his Executors it was agreed by the Iustices that it might be well enough for it is like to a Conusans of a Fine before a Iudge which may be removed out of the hands of the Iudge by Certiorari and yet it is not a Record till the perfection of it At the same time it was doubted also if the Chancery would aid a man when there wanted the words Heirs in a Deed where the land was sold for mony Chancery compel Attornment But it was agreed that after a Fine levied the Chancery might compel the Tenant to Attorn Hil. 27 Eliz. XXXV Holland and Hopkins Case IN Ejectione firmae it was agreed by the Court that if a Disseisor be of an 100 Acres and he lets the same to divers for Years that the entry into one Acre by the Disseisee is an entry against them all but if they had been Tenants for life Quaere for that then he might have his Action against them And it was said Entre congeable that if one makes a Lease for years rendring for the first two years 10 l. and afterwards 30 l. every year with condition if the rent of 30 l. or any part of it be behind that the Lessor enter The Lessor enters for not payment of the 10 l. that his entry is lawful for the 10 l. was parcel of the rent for it was but one rent Trin. 29 Eliz. In the Kings Bench. XXXVI Clamp and Clamps Case Copyholder Surrender A Copyholder in possession surrendred the Reversion of his land post mortem suam to the Lord to an use c. It was adjudged that thereby nothing passed XXXVII Trin. 21 Eliz. In the Common Pleas. A Lease was made of a Mannor with all Gardens Orchards Yards c. and with all the profits of a Wood except to the Lessor forty Trees to take at his pleasure It was a Question if the Lessee should have the Wood It was the opinion of Dyer That the Wood was not comprised within the Lease but the Lessee should only have the profits as pawnage Leases herbage c. And he said it was a Case adjudged a man made a Lease of a Wood ad faciendum maximum proficuum meliori modo quo poterit that the Lessee thereby could not cut the Trees nor do waste Mich. 33 Eliz. In the Exchequer XXXVIII Butler and Lightfoots Case IT was holden by the Barons Copyholder Surrender 3 Leon. 239. That if Tenant for life be of a Copyhold the Remainder over in Fee to another he in the Remainder may surrender his Estate if there be no custom to
Common Pleas. LII Frice and Fosters Case IN Ejectione firmae the Plaintiff declared upon a Lease made 14 Jan. 30 Eliz. to have from the Feast of Christmas then last before for three years and upon the Evidence the Plaintiff shewed a Lease bearing date the 13 day of January the same year and it was found by Witnesses that the Lease was sealed and delivered upon the Land the 13 day of January Variance Whereupon Puckering and Cowper Serjeants moved on the part of the Defendant that for that variance between the Declaration and the Evidence of the Plaintiff that the Iury might be discharged Evidence good to maintain Issue But Anderson Chief Iustice said that the Evidence was good enough to maintain the Declaration for if the Lease was sealed and delivered the 13 of January it was then a Lease 14 January Quod caeteri Justiciarii concesserunt LIII Mich. 32 Eliz. In the Common Pleas. IN a Quare Impedit against the Bishop of Coventry and Lichfield The Case was that A. seised of an Advowson in Fee Quare Impedit by Executors the Church voided the Bishop collated wrongfully A. dyed Collation it was holden that his Executors might have a Quare Impedit upon that disturbance and that by the equity of the Statute which gave an Action of Trespass to Executors of Goods carried away in the life of the Testator 4 E. 3. cap. 7. and that the Clerk should be removed at the suit of the Executors Mich. 32 Eliz. In the Kings Bench. LIV. Harvey and Thomas Case THe Case was that the Husband seised of Land in the right of his Wife made a Lease of it for years Fine by the Husband where avoids a Lease ê contra 1 Roll. tit Charge in Marg. 389. Plow Quaer 31. 261. ib. plus and afterwards he and his Wife conveyed the Land to a stranger by Fine the Husband died Wray Chief Iustice was of opinion that the Conusee should hold the Land discharged of the Lease Gawdy contrary In case of a Rent granted or a Recognizance acknowledged by the Husband the Conusee of the Fine shall avoid any of them But in this Case the Conusee meddles with the Land it self and an Estate in the Land is conveyed by the Husband which none but the Wife or her Heirs shall avoid and if the Wife after the death of her Husband accept the Rent upon such a Lease by that the Lease is confirmed Mich. 33 Eliz. In the Kings Bench LV. Blaby and Estwicks Case IN Assumpsit It was moved in stay of Iudgment Assumpsit that one of the Defendants was dead after verdict but notwithstanding that Allegation Iudgment was given Attornment for the Court cannot take Notice of it judicially nor any of the Parties hath day in Court to plead it and therefore the Court is not to have regard to such Informations Wray It is not honourable for us upon such surmises which cannot be tryed to delay Iudgment and also the Party is not without remedy for he may have a Writ of Error 33 Eliz. In the Kings Bench. LVI Hore and Briddleworths Case HOre brought Trespass against Briddlesworth Quare clausum Domum suam fregit the Defendant pleaded and put the Plaintiff to a new Assignment i. e. a House called a Stable a Barn and another House called a Carthouse and Garnier And that was assigned for Error for that Assignment is not warranted by the Declaration Gawdy said it was good enough for Domus in the Declaration contains all things contained in the new Assignment but if the Declaration had been of a Close and the new Assignment of a Barn it had not been good Wray Chief Iustice Domus est nomen collectivum and contains many Buildings as Barns Stables c. And such was the Opinion of the Court. Mich 33 Eliz. In the Kings Bench. LVII Mans Case Prohibition MAn was sued before the Commissioners in Ecclesiastical Causes for an Incestuous Marriage viz. for marrying his Wives Sisters Daughter and although it be not expresly within the Levitical degrees yet because more farther degrees are prohibited the Archbishop of Canterbury and other the Commissioners gave Sentence against him Consultation upon which he sued a Prohibition upon the Stat. of 32 H. 8. c. 38. The Prohibition was general where it ought to be special that it be not within the Levitical degrees and therefore a Consultation was granted Trin. 26 Eliz. In the Kings Bench. LVIII Doylies Case Appeals IN an Appeal de Roberie against Doyly It was agreed by the Iustices that the Party robbed shall have an Appeal of Robbery 20 years after the Robbery committed and shall not be bound to bring it within a year and a day as in the Case of an Appeal of Murder Vide contr 22 Ass 97. vide Stamford 62. Trin. 26 Eliz. In the Kings Bench. LIX Ruishbrook and Pusanies Case THe Plaintiff brought Trespass for pulling down his Hurdles in his Close The Defendant justified by reason that one Beddingfield was Lord of the Mannor of D. and that the said Beddingfield and all those whose Estate he had in the said Mannor had had a free course for their sheep in the place where c. And that the Tenant of the said Close could not there erect Hurdles without the leave of the Lord of the Mannor and that the said Beddingfield let to the Defendant the said Mannor and because the Plaintiff erected Hurdles without leave c. in the said Close he cast them down as it was lawful for him to do The Plaintiff replyed of his own wrong without cause c. It was holden by the Iustices to be an ill Plea Traverse for the Plaintiff ought to have traversed the Prescription 19 Eliz. In the Common Pleas. LX. Par Marquess of Northamptons Case PAr Marquess of Northampton took to Wife the Lady Bourchier Heir of the Earl of Essex Leases by a Baron contrary to Act of Parliament void 3 Leon. 71. who levied a Fine of the Lands of the Lady sur Conusans de Droit c. with a Grant and Render to them for Life the remainder to the right Heirs of the body of the said Lady And afterwards by Act of Parliament â—5 H. 8. It was enacted That the said Lady should retain part of her Inheritance and dispose thereof as a Feme sole and that the said Marquess should have the residue and that he might lease the same by himself without the Wife for 21 years or lesser term yielding the ancient Rent being Land which had been usually demised c. The Marquess leased the same for 21 years and afterwards durante termino praedict he let the same Land to another for 21 years to begin after the determination of the former Lease It was moved that the last Lease was void for three Causes 1. Because the Marquess had but for Life and then it cannot be intended that the Statute would enable
one who had an Estate so determinable to make such a Lease which peradventure could not begin in his Life 2. The Letter of the Act is 21 years or under and the word under strongly expounds the meaning of the Act to be not to extend to such an Estate for hereupon the matter is a Lease for 40 years 3. Because the Land leased is the Inheritance of the Wife and it was said that in the Case of one Heydon such a private Act of Parliament was strictly construed Acts of Parliament It was enacted that all Copies for three Lives granted by the Lord Admiral of the Lands of his Wife which was Queen Katherine should be good The Admiral granted in Reversion for three Lives It was holden that the Grant was void and not warranted by the said private Act of Parliament Dyer The words are general omnes dimissiones therefore not to be restrained to special Leases Manwood A Feme covert by duress joyns in a Lease with her Husband it shall bind her The Case was adjourned LXI Mich. 19 Eliz. In the Common Pleas. THe Queen leased for years rendring 10 l. Rent the Lessee granted the Land over to A. rendring 20 l. Rent A. granted the Land over to B. who surrendred to the Queen and took a new Lease And Manwood said that the first Lessee should have an Action of Debt for the Rent of 20 l. against him Debt for Rent who was possessed of the Land and not against A. his Assignee for it is a Rent issuing out of the Land and he who hath the possession of the Land shall pay it and no other for if any part of the Land be evicted the Rent shall be apportioned and because it is meerly a Rent and ensues the privtiy real viz. the possession of the Land and not the privity personal the Person of him who was party or privy to the Contract and he said If the first Lessee who reserved the Rent entred upon the Land the Rent is suspended Dyer The first Lessee hath Election which of them he will sue 18 H. 6. 1. in Debt against Lessee for years for the Arrearages of Rent reserved upon it he needs not declare that the Lessee had entred for the Contract is the ground of the Action 44 Eliz. 3. 5. Debt against the Lessee notwithstanding the Assignment Mich. 26 Eliz. In the Common Pleas. LXII Bluets Case BLuet granted the next Avoidance to Stell and Brooks and was bound to Brooks in an Obligation that he should enjoy the said Presentment without any disturbance or claim of the said Bluet Stell released to Bluet his Interest on the said Advowson The Church became void Bluet offer'd to joyn with Brook Obligation forfeited in presenting to the Avoydance It was holden in this Case that the Obligation was forfeited although that Bluet had a puisne Title to it after the Obligation was entred into Mich. 32 Eliz. In the Common Pleas. LXIII Shrewsbury and the Inhabitants of Ashtons Case Action upon Statute of Huy and Cry. AN Action was brought by Shrewsbury against the Inhabitants of the Hundred of Ashton in the County of Bucks upon the Statute of Huy and Cry It was moved by Fleetwood Serjeant for the Defendants That if upon such Huy and Cry the Inhabitants do their endeavours as much as in them is to pursue and take the Malefactors and yet they cannot apprehend them that in reason they ought not to be charged But the whole was very strongly against him For Anderson Chief Iustice said that the Inhabitants of the Hundred in which the Robbery is done are bound to apprehend the Felons or to satisfie the Party robbed and the Party robbed is not bound to give notice to the Inhabitants nor to direct them which way the Felons took their flight but the Inhabitants are bound to pursue the Felons without any such instruction And afterwards the Inquest was taken and gave a Verdict in this manner That where the Plaintiff had declared that the Robbery was done in the Parish of D. in the Hundred aforesaid the Iury found that the place where the Robbery was done was a Lane within the said Hundred and that the one side of the said Lane was within the Parish of S. and the other side within the said Parish of D. and that the Robbery was done on the side of the said Lane which was in the Parish of S. and prayed the Opinion of the Court upon the matter And the whole Court was clear of Opinion That notwithstanding the Exception the Plaintiff should have Iudgment for here is the right Hundred which ought to be charged and the mistaking of the Parish was not to the purpose Mich. 32 Eliz. In the Common Pleas. LXIV Josselin and Josselins Case IN Debt the Plaintiff declared That he let certain Lands for years to the Defendant rendring Rent payable at the Feasts of the Annunciation and St. Michael or within forty days after every of the said Feasts and that the Rent was behind at the Feast of St. Michael last past unde actio accrevit The Defendant pleaded Nihil debet upon which they were at Issue It was shewed to the Court that here upon the Pleading is a Ieofail for the Rent is reserved payable at the said Feasts Jeofails or within forty days after and he declares that the said Rent upon which the Action was brought was behind at St. Michael without respect to the forty days after which cannot be for before the forty days after each Feast no Action did lie whereupon the Court awarded a Repleader Mich. 32 Eliz. In the Kings Bench. LXV The Queen and the Earl of Shrewsburies Case THe Queen granted to George Earl of Shrewsbury Grants of the King. Office of Marshal of the Kings Bench. An. 15 Eliz. the Office of Earl Marshal of England and now came the said Earl and prayed that J. N. one of his Servants to whom he had granted the Office of Marshal of the Kings Bench might be admitted to it because that the same is an Office incident to his Office and in his power to grant and that Knowles to whom the Queen had granted the same Office of Marshal of the Kings Bench which she had by the Attainder of Thomas Duke of Norf. might be removed And a President was shewed M. 14 and 15 Eliz. between Gawdy and Verney where it is agreed That the said Office was a several Office from the said great Office and not incident to it And as to the Case of 39 H. 6. 33 34. the truth is that the said Marshal of the Kings Bench was granted expresly to the Duke and so he had it not as incident to his Office of Marshal of England On the other side were three Presidents shewed In the time of Edward 2. That the Office of Marshal of the Kings Bench was appendant to the said Office of Marshal of England And 8 H. 2. when the said Great Office was in the
Defendant that these Matters of Forgery were not within the Statute of 5 Eliz. nor also the Perjury or the procurement thereof upon which the Lords of the Council there Upon the Statute of 5 Eliz. of Perjury referred the consideration of the said Statute to both the Chief Iustices who at the next day in Court declared their Opinions upon the said Matters i. e That the said Matters did not extend to the Forgery of a Deed containing a gift of Chattels personals which see clearly by the Statute which as to that purpose extends but to Obligations Bills Obligatorie Acquittances Releases or other Discharges and that also a Deed of Assignment of a Lease of Lands in Ireland is not within the said Statute and also they were of opinion that the said Perjury and the procurement of it was not punishable by the said Statute because the Oath was taken coram non Judice for the Town-Clerk of London could not take an Oath in such a case Note no more than a private person But because that the Bill in the perclose and conclusion of it was contrary to the Laws and Statutes of this Realm the two Chief Iustices were of Opinion That the said Court might punish these Offences as Misdemeanors at the Common Law but not according to the Statute and afterwards Shyriffe was fined and by Order of the Court to stand upon the Pillory Mich. 29 Eliz. In the Exchequer Chamber LXXX The Queen and Lord Vauxes Case Bills IN the Exchequer Chamber before the Chancellor c. the Lord Vaux brought a Writ of Error upon a Iudgment given against him in the Court of Exchequer and assigned for Error that a Bill was exhibited against him that the Lord Vaux had taken certain goods of the Queen at Westminster in the County of Middlesex and also had intruded into the Rectory of Ethelborough in the County of Northampton whereas the Queen ought to have brought several Bills being for several causes arising within several Counties But it was resolved by the whole Court That the Bill of the Queen was good enough and here is no mischief for if the Defendant will plead Not Guilty two several Venire Facias shall be awarded one into Middlesex the other into the County of Northampton Mich. 27 Eliz. In the Common Pleas. LXXXI Owen and Morgans Case GEorge Owen brought a Scire Facias against Morgan to have Execution of a Fine levied 8 Eliz. by which Fine the land was given to the Conusee and his heirs the Conusee rendred the same to the husband and wife and to the heirs of the body of the husband Note that the husband was the Conusor the remainder in Fee to the now Demandant and note that the Writ of Covenant was between the Conusee Plaintiff and the husband Deforceant without naming the wife And afterwards the husband suffered a common Recovery without naming of the wife Common Recovery the hushand and wife died without Issue and now Owen to whom the remainder was limited by the Fine brought a Scire Facias in bar of which the Recovery was pleaded It was argued by Shuttleworth Serjeant That the said Recovery had against the husband was a good bar Feme not party to the Writ of Covenant not bound by a Recovery and should bar the remainder and the wife ought not to be named in or party to the Recovery for that nothing accrued to her by the Fine because she was not party to the Writ of Covenant and to the Conusans vide 32 H. 8. Fines 108. None can take by the Fine but those who are named in the Writ of Covenant but every Stranger may take by way of Remainder Vide etiam 7 E. 3. Br. Fines 114. 6 E. 3. Fitz. Fines 117. 7 E. 3. Fitz. Scire Facias 136. It is said by Herle if such a Fine ut supra be taken it is good as long as it is in force LXXXII Sir Richard Lee and Arnolds Case Post 93. SIr Richard Lee Kt. seized of three Manors made a lease of them to Sir Nicholas Arnold for certain years reserving for the one Manor 5 l. and for the other Manor 10 l. and for the third Manor 10 l. upon condition that if the said rents or any of them or any part c. be behind a re-entry into all the Manors and afterwards he bargained and sold the reversion of one of the said Manors to William Winter in Fee and afterwards by Deed indented and inrolled bargained and sold the two other Manors and for the rent of one of the said Manors the Vendee did re-enter into all the Manors Manwood Here are several reservations Reservation of Rents upon a joynt Lease several rents and several leases for although that the words are joynt yet by construction they are become several as Land given to an Abbot and a Secular man although here be joynt words yet they are Tenants in Common Litt. 296. And if I sell to you two Horses the one for 5 l. and the other for 5 l. here are two several contracts the Parties to whom these reversions are assured ut supra are Assignees within the Statute of 32 H. 8. by which it is enacted that Assignees may take advantage of Conditions for such an Assignee is not meerly in by act of law as the Lord by Escheat and he is not such an Assignee but is in by conveyance The Lessor enters upon his Lessee Assigns and makes his Feoffment and the Lessee re-enters now the Feoffee is an Assignee and this condition is destroyed in part and continued in part Condition destroyed in part good in part If one hath Common in the land of another for 20 beasts and releases his Common for 10 beasts the Common for the residue remains but if he purchaseth part of the land in which he hath Common the whole Common is destroyed A Feoffment to two with warranty and one of them releases the warranty all the warranty is gone As to the condition for as much as it is not collateral but incident to the reversion it may be severed and is of the same nature as the rent and reversion A man possessed of lands for 20 years and seized of other lands in Fee Conditions divided leaseth all the land for 10 years reserving rent with clause of re-entry and dieth now the Heir hath a reversion for the land in fee and the executor for the other land so the condition is divided according to the reversion so if lands were given to one in general tail and others in special tail he thereof makes a lease rendring rent and dieth having several Issues inheritable to each tail now the condition shall go according to the rent and he conceived that the Grantee of parcel of the reversion is an Assignee within the said Statute Grantee of parcel of the Reversion is an Assignee within 32 H. 8. Of Conditions as if a Lease for years
be made rendring rent with clause of re-entry The Lessor grants the Reversion for life such a Grantee is an Assignee within the said Statute Jefferies The Condition is gone A. leaseth two Acres for years rendring rent with clause of re-entry the Lessor accepts a surrender of one Acre the whole Condition is gone but the rent shall be apportioned A Parson leaseth land whereof he is seized in his own right and land whereof he is seized in the right of his Church for years rendring rent with clause of re-entry and dieth the rent shall go according to his respective capacity and the Condition divided Condition apâ—â—â—â—â—â—ned So if part of the land so demised be evicted the Rent shall be apportioned and the Condition also And he said that the Bargainee is not an Assignee within the Statute Barham If the Reservation doth not make the lease several yet it shall make the Reversion several c. Mead 6 Eliz The Court was moved in this Case A. leased for years rendring rent with clause of re-entry and afterwards became bound to another by Recognizance the Recognizee extended the moiety of the rent and Reversion in Execution Condition suspended and the clear Opinion of the Court was that the Condition was suspended If A. let lands for years rendring rent with clause of re-entry to a Man and to a Feme sole and afterwards the Lessor intermarries with the Feme the Condition is suspended Mounson Iustice The Demise is joynt although that the Reservation be several Cestuy que use is seized of an Acre in possession and of another in reversion and makes a Lease for years of both rendring rent Severance here are several rents 13 E. 3. A. seized of two Acres of lands before the Statute of Westminster 3. made a Feoffment thereof to hold the one Acre by Knight Service and the other in Socage the Tenancy in such case is several 9 Ass 24. a lease is made of a Mill. and of a Wood rendring for the Mill 10 s and for the Wood 20 s. these are several rents and so here they are several rents and several conditions Two Tenants in Common make a lease for years rendring rent upon clause of re-entry the condition is several according to the reversion for joynt words in the Letter have sometimes as the matter requires constructions in the severalty As A and B covenant by Indenture and are reciprocally bound the one to the other to perform all Covenants contained in the said Indenture the same is to be construed such Covenants which on the part of A. are to be performed and so of the other part B. And he conceived that by the distracting of the reversion the condition was gone a condition by an act in law may be divided but not by the act of the party Conditions by act in Law divided not by act of the Party As a man makes a lease for years rendring rent with clause of re-entry takes a Wife and dyeth The Wife recovers the third part of the land devised for her Dower now that third part is discharged of the condition during the estate in Dower but the residue is subject to the condition and vide F. N. B. 21 the Heir at Common Law shall have a writ of Error for his part and the Heir in Borough English for his part two Ioyntenants make a lease for life upon condition and one releaseth the condition Statute of 32 H. 8. of Conditions taken by Equity the same barred the condition And he conceived that the Bargainee is an Assignee for the Statute of 32 H. 8. shall be taken by Equity c. As if a man leaseth lands for years to begin at Michaelmas next and before Michaelmas he makes a Feoffment and at Mich. the Lessee enters the Feoffee is an Assignee within the Statute two Ioyntenants make a lease for years rendring rent with clause of re-entry and the one releaseth to his companion he is an Assignee within the Statute Manwood He is an Assignee and in by the Bargainor The words of the Statute of 32 H. 8. are Grantees or Assignees to or by any Person or Persons and here the Bargainee is an Assignee to the Bargainor as to the use and for the possession he is an Assignee by him He who is in by a common recovery is not an Assignee although the recovery was to his use for the Writ disaffirms his possession if Tenant for llfe be disseised and he in the reversion confirms the estate of the Disseisor and the Tenant for life re-enters the Disseisor is now an Assignee but otherwise it is if he in the reversion doth release to the Disseisor and he conceived that the Lessor should recover part of the land in an action of Waste or enter in part of the land for a forfeiture for an alienation in fee that the condition remains Harper Several reservations do not make several leases for the reservation is not of the essence of the lease for it is good without any reservation and whereas it hath been said that a Lease is a contract I say Difference between a Reservation and a Contract that there is a great diversity between a reservation and a contract for if I sell to you a Horse for 40 s. and afterwards I take this Horse out of your possession yet I shall have an action of Debt for the 40 s. But if I lease land to you reserving rent and afterwards enter into parcel of the land demised I shall not have the rent and if I lease two Acres for years with several reservations I shall have but one action of waste but several Avowries according to the several reservations And here if any part of any of the said rents be behind the party may re-enter into the whole therefore the lease is but una eadem And I conceive that the Assignee of the Assignee is by the Statute to take advantage of the condition even to the twentieth degree as a warranty to one of his Heirs and Assigns extendeth to the twentieth Assignee But here in our case he is not such an Assignee that shall take advantage c. for he is in by the Statute scil in the Post but not in the Per and here the Bargainee hath but an use by the act of the Party and the possession of the Statute of 27 H. 8. But admitting that he is an Assignee yet he is an Assignee but of part and therefore shall not have advantage Condition suspended in part is suspended in all c. When a condition is suspended in part it is suspended in all A. leaseth lands for years upon condition and afterwards the lessor confirms his Estate in part for life the condition is gone Dyer The Lease is one and entire although there be several reservations for here are not several capacities nor several interests 42 Ass Two Ioyntenants lease for life rendring rent to one of them yet the rent and
the Exchequer lend unto another 500 l. of the Queens money and takes a Bond for it in his own name yet the Queen shall have an Accompt against the Borrower Mich. 29 Eliz. In the Exchequer XC Pelhams Case IN the Exchequer Chamber before the Chancellor Treasurer Savile Rep 43. Grant of Office of Sheriff and Barons there in the Case of Pelham the Case was That the Queen had granted by her Letters Patents that Pelham should not be Bailiff Constable nor other Officer or Minister Licet eligatur yet it was holden that the Queen might make him Sheriff for that Grant doth not extend to Officers Royal as Grants of Amercements do not extend to Amercements Royal and also the Office of Sheriff doth not lye in Election but if the words had been Licet eligatur per nos then it should have been otherwise And such was the Opinion of Bromley then Lord Chancellor Trin. 19 Eliz. In the Kings Bench XCI Godbolts Case IN the Case of one Godbolt It was agreed Sales that the sale of a Bailywick of a Hundred was not within the Statute of 5 E. 6. cap. 16. For such an Office doth not concern the Administration of Iustice nor is it an Office of Trust XCII In Temps Eliz. A. Granted to B. a Rent-charge out of his Lands to begin when J. S. died without Issue of his Body J. S. dyes having Issue which Issue dyes without Issue Dyer held that the Grant shall not take effect for J. S. at the time of his death had Issue and therefore from thence the Grant shall not begin and if not then then not at all And Manwood said that if the words had been to begin when J. S. is dead without Issue of his Body then such a Grant shall take effect when the Issue of J. S. dies without Issue c. If Donee in Tail hath Issue which dies without Issue the Formedon in the Reverter shall suppose that the Donee himself died without Issue for there is an Interest Difference between an Interest and a Limitation and there is a diversity between an Interest and a Limitation for if I give Land between A. and B. for term of their lives if any of them dye the Survivor shall hold the whole but if I give Lands to A. for the lives of B. and C. now if B. and C dye the whole Estate is determined because it is but a Limitation and B. and C. have not any Interest Vide to this purpose 34 Eliz. Brudnels Case in Cook 5. p. 9. XCIII Temps Roign Eliz. In the Common Pleas. A. Seized of a Manor leased the same for years rendring rent with clause of re-entry and afterwards levied a Fine Sur Conusans de droit c. to the use of himself and his Heirs the rent being demanded is behind Dyer A. cannot re-enter for although the rent in right passeth without Attornment yet he is without remedy for the same without Attornment and it would be hard without Attornment to re-enter It was here moved further if the Conusor be an Assignee within the Statute of 32 H. 8. Manwood The reversion of a Termor is granted by Fine there wants Privity for an Action of Debt Waste and Re entries But if the Conusee dieth without Heir although that in right it was in the Conusee yet the Lord by Escheat shall make Avowry and yet the Conusee by whom he claims could not And in the Case at Bar the Conusee himself could not but the Conusor being Cestuy que use who is in by Act of Law shall Avow and re-enter without Attornment for the Conusor is in by the Statute of 20 H. 8. Harper The Heir of the Conusee shall Avow and re-enter before Attornment Dyer 13 H. 4. The Father leaseth for years rendring rent with clause of re-entry the Father demands the rent which is not paid the Father dyeth the Son cannot re-enter for the rent doth not belong unto him and therefore in the Case at Bar the Conusor cannot Avow for the rent before Attornment therefore not re-enter And in Case of Bargain and Sale the Bargainee is Assignee within the Statute but not the Conusor in this Case Temps Roign Eliz. XCIV 15 Eliz. Sir Francis Leak and Sir Walter Hollis Upon Attainder of Treason who shall seize the Goods for the Queen AT the Assizes the Opinion of Dyer and Stamford was demanded upon this matter One seized of Lands and Tenements and possessed of Goods within the Duchy of Lancaster was Attainted of High Treason and a great Question arose between Sir Francis Lake Kt. Bailiff of the Duchy and Sir Walter Hollis Sheriff which of them ought to seize for the Queen and their Opinion then was that the same did appertain to the Office of the Sheriff if in the Patent of the Sheriff there were not special words to the contrary XCV 15 Eliz. In the Common Pleas. TEnant at Will made a Lease from year to year Lease by Tenant at Will if a Disseisin Dyer conceived that it was not a Disseisin but the Lease was void and he said that the Book of 12 E. 4. 12. was not Law. For he who disseiseth a man ought to claim Inheritance in the land whereof the disseisin is done Harper conceived that the said Book of 12 E 4. 12. was good Law for a Lease at Will is a Lease at the will of both parties and therefore when the Lessee makes a Lease for years his will is determined and he will not hold at will. Manwood agreed with Dyer for if Tenant at Will lease for years rendring rent before that the Lessee for years entreth the Tenant at Will shall not have any rent for it was not a perfect contract otherwise it is where a man seized of Lands leaseth the same ut supra If one entreth into my land and occupieth the same of his own head claiming to hold the same at my will and afterwards I demand of him a certain rent for the occupation of my land he is now my Tenant at Will which all the Iustices granted Mich. 30 Eliz. In the Kings Bench. XCVI Cutter and Dixwels Case ACtion upon the Case for that the Defendant exhibited a Bill to the Iustices of Peace against the Plaintiff containing and complaining That the Plaintiff is an enemy to all quietness seeking by all means to disquiet his neighbours and hath used himself as a lawless person and having Process to serve upon one in the Parish scil J. S. did keep the Process and would not serve it but on the Sunday in the time of divine Service not having regard to her Majesties laws or the quiet of his neighbors Vpon which Bill the Iustices to whom it was exhibited awarded Process against the Plaintiff to find Sureties for his good behaviour by virtue of which he was taken and imprisoned It was the Opinion of all the Iustices in this Case that upon this Matter an Action upon the Case would not
that Reversion shall descend to all the daughters notwithstanding the half blood for the Estate for years which is made by Indenture by license of the Lord is a demise and a Lease according to the order of the Common Law and according to the nature of the demise the Possession shall be adjudged which possession cannot be said possession of the Copyholder for his possession is customary and the other is meer contrary therefore the possession of the one shall not be the possession of the other therefore there shall be no Possessio Fratris in this case Possesso Fratris But if one had been the Guardian by custom or the Lease had been made by Surrender there the Sister of the half blood should not inherit And Mead said the Case of the Guardian had been adjudged Mounson agreed And it was said that if a Copyhold doth descend to the Son he is not a Copyholder before admittance but he may take the profits and punish a Trespass before admittance CIV Pasc 19 Eliz. In the Common Pleas. A Parson let his Rectory for three years and covenanted that the Lessee shall have and enjoy it during the said term without expulsion or any thing done or to be done by the Lessor and is also bound in an Obligation to the Lessee to perform the said Covenant Forfeiture Quaere Afterwards for not reading of the Articles he was deprived ipso facto by the Statute of 13 Eliz. The Patron presented another who being inducted ousted the Lessee wherefore an Action was brought upon the Obligation It was the Opinion of all the Iustices That this matter is not any cause of Action for the Lessee was not ousted by any Act done by the Lessor but rather for Non feasans and so out of the compass of the Covenant aforesaid as if a man be bound that he shall not do any waste permissive waste is not within the danger of it Pasc 26 Eliz. In the Common Pleas. CV King and Cottons Case IN Ejectione firmae the Case was Lessee for years the Remainder for life the Remainder in Tail to Lessee for years Lessee for years made a Feoffment in Fee with warranty and dyed he in the Remainder for life dyed the Issue in Tail entred and made a Lease to the Plaintiff It was clearly resolved by the Court in this Case Entre Congeable That the entry of the Issue in Tail was lawful notwithstanding that the disseisin was done to another Estate than that which was to be bound by the warranty scil to the Estate for life Vide 50 E. 3. 12 13 46 E. 3. 6. Fitz. Garr 28. Pasc 26 Eliz. In the Common Pleas. CVI. Scot and Scots Case BArtholomew Scot brought a Writ of Accompt against Thomas Scot Accompt Thomas Scot sum ' fuit ad respondend Barth Scot quod reddat ei rationabilem computum suum de tempore quo fuit receptor denariorum c. And declared quod cum the said Thomas Scot fuit receptor denariorum c. recepisset so much by the hands of such a one c. Cumque idem Thomas habuisset recepiâ—â—et diversa bona and shewed what ad merchandizand c. Exception was taken to the Declaration because the Writ and Declaration is general against the Defendant as Receiver whereas for such goods as the Defendant had received ad merchandizand he ought to have been charged as Bayliff Quod Curia concessit Vide Book Entries 19. 46 E. 3. 9. and afterwards the Defendant traversed severally both the Charges whereupon several Issues were joyned and both found for the Plaintiff And as to the monies with the Receipt of which he was charged as Receiver the Plaintiff had Iudgment and as to the others Abatement of Writ which he received ad Merchandizandum the Writ abated And it was said by the Court That the Writ should have abated in the whole unless the several Issues had helped the matter because the Plaintiff might have had an Action for part in other manner Vide 9 H. 7. 4. by Brian 17 Eliz. In the Star-Chamber CVII Morgan and Coxes Case MOrgan exhibited a Bill of Perjury in the Star-Chamber against one Cox setting forth that whereas he was bound to his good behaviour by Recognizance acknowledged in the Kings bench and he in discharge of the said Recognizance had obtained a Writ De Fama gestu to enquire of his Conversation and therefore at the Sessions in the County of Devon where the said Morgan was dwelling the grand Iury charged with the said Matter the said Cox gave Evidence to the said grand Iury in maintenance and continuance of the said Recognizance and upon the Evidence given by Cox the said Bill was conceived It was moved by the Counsel of the Defendant That that Bill upon the matter did not lye for that the Evidence in the Bill for the Perjury was given for the Queen in maintenance of the Recognizance and that to the grand Iury which was charged for the Queen But as to that it was said by the Lord Chancellor and both the Chief Iustices that the Writ De fama gestu Brief de Fama gestu is an especial Writ at the Suit of the Party and not of the Queen and the Court cannot deny it to him who asketh it and the grand Iury as to that matter shall be accounted a special Iury c. Mich. 16 Eliz In the Common Pleas. CVIII Jackson and Darcys Case Tail barred by a Fine 3 Leon. 57. IN a Writ of Partition betwixt Jackson and Darcy the Case was Tenant in Tail the Remainder to the King levied a Fine had Issue and dyed it was adjudged that the Issue was barred and yet the Remainder to the Queen was not discontinued for by the Fine an Estate in Fee-simple determinable upon the Estate in Tail passed to the Conusee Trin. 17 Eliz. In the Common Pleas. CIX Stroads Case Tenures IN a Replevin the Case was Lands holden of a Subject came to the possession of the King by the Statute of 1 E. 6. of Chauntries The King granted the Lands over unto another it was holden in this Case that the Patentee should hold of the King according to his Patent and not of the ancient Lord but the Patentee should pay the rent by which the said Land was before holden as a Rent-seck distrainable of Common right to the Lord and his Heirs of whom the Land was before holden CX Mich. 19 Eliz. In the Common Pleas. A. Seized of Lands in Fee devised them to his Wife for life and after her decease Estate she to give the same to whom she will He had Issue two daughters and died Devises Leon. 121â— the wife granted the Reversion to a Stranger and committed waste and the two daughters brought an Action of waste In this Case it was holden that by that Devise the wife had but an Estate for life but she had also an authority
taken to it because in the Margent was written Middlesex and in the Indictment they both were named of London and afterwards in the proceedings the words are That Weshbourn and Brown entred in such manner in Com. praedict and that is incertain what County is intended Middlesex or London but the Exception was not allowed for London before is not expressed to be accounted but only implyed Another Exception was because they had not any addition but it was not allowed for it appeared to the Court. And after it was moved upon the Statute of 31 Eliz. cap. 11 that no Restitution upon such Indictment should be granted if â—he party indeed had had the Occupation or had been in quiet possession for three years next before the day of the Indictment and in the Case at Bar the Master hath been in possession by three years but the Parties indicted being his Servants had been with him but for one year it was thereby holden by the Court that upon the matter Restitution should not be granted for the possession of the Master in this Case takes away all Restitution and that by the Statute Mich. 32 Eliz. In the Common Pleas. CXXIX Canons and Osborns Case A. Seized of a Rent in Fee granted the same by Fine to B. to the use of C. It was moved to whom the Ter-tenant should attorn And by Walmesly Periam and Windham there needs not any Attornment to the Conusee because all the right of the Rent is out of the Conusor Attornment and transferred to Cestuy que use instantly And Walmesly cited this Case to have been lately adjudged A Reversion in Fee upon a Lease for years was granted by Fine to A. to the use of B. B. without Attornment brought an Action of Waste and it was adjudged that the Action did well lye CXXX Mich. 32 Eliz. In the Common Pleas. A Lease for years is made by Deed Indented rendring Rent and the Lessor covenants that the Lessee paying his Rent shall enjoy the Land demised for the whole term the Lessee did not pay the Rent and afterwards is ejected by a Title peramount By Walmesly and Windham Iustices that the Covenant is conditional and that the Lessee should not have advantage of it if he did not perform the Condition which is created by this word paying Periam Iustice was strongly to the contrary viz. that the word paying did not create a Condition Mich. 32 Eliz. In the Common Pleas. CXXXI Thetford and Thetfords Case THe Case was an Action of Debt for Rent reserved upon a Lease for years the Plaintiff declared that Land was given to A. and B. his Wife Leases and the Heirs of their Bodies and that he and his Wife leased for years to the Defendant Baron and Feme and that the Donees were dead and that the Plaintiff as Heir c. for Rent behind c. And upon Non dimiserunt the Iury found that the Husband and Wife dimiserunt by Indenture and that after the Husband died and the Wife entred and within the term died Agreement Disagreement Now upon this matter Anderson Iustice conceived clearly that the Iury have found for the Defendant scil Non dimiserunt for it is now no Lease ab initio because the Plaintiff hath not declared upon a Deed and also the Wife by her disagreement to it and Occupation of the Land after the Death of her Husband had made it to be the Lease of her Husband only Trin. 31 Eliz. In the Common Pleas. CXXXII Acton and Pitchers Case IN a Writ of second Deliverance by Acton against Pitcher Leases within 32 H. 8. It was moved if a Lease made by a Prebendary were within the Statute of 32 H. 8. cap. 28. because the said Statute speaks of men seized in the right of their Churches and a Prebendary is seized in right of his Prebend and not in right of the Church But it is the Opinion of the whole Court that he was within the Equity of the Statute Trin. 32 Eliz. In the Common Pleas. CXXXIII Curtises Case IN a Writ of Error it was holden in the Common Pleas Amendment that if a Writ of Error be brought and delivered to the Chief Iustice de Communi Banco and allowed by him under his hand that afterwards the Record cannot be amended by Prothonotary Attorney or Clerk of the Court although that no Record be entred upon the Roll upon which the Writ of Error is brought Mich. 31 Eliz. In the Common Pleas. CXXXIV Scots Case SCot brought a Formedon against A. who made default after default Resceit Anders 133. and now came B. and surmised to the Court that C. was seized of the Land in Demand and gave the same to A. in Tail the remainder to the said B. in Fee and prayed to be received and afterwards the Court upon advice ousted him of the Resceit 28 Eliz. In the Common Pleas. CXXXV Terrets and the Hundred of c. Case IN an Action upon the Statute of Huy and Cry against the Hundred of c. the Defendants pleaded Not Guilty Action upon Statute of Huy and Cry. And in Evidence the Plaintiff to prove that he was robbed offered to the Iury his Oath in verifying his Declaration which Anderson and Periam utterly refused to accept of but Windham Iustice affirmed that such an Oath had been accepted of in the Case of one Harrington Oaths where the Plaintiff could not have other Evidence to prove the Cause in respect of secresie for those who have occasion to travel about their occasions would not acquaint another what monies or other things which they have in their journey and we see that the Law doth admit of the Oath of the Party in his own cause where the Oath shall make an end of the cause as in Debt where the Defendant wageth his Law. Periam That 's an ancient Law but we will not make new Presidents for if such an Oath be accepted of us in this case by the same reason in all causes where is secrecy and no external proof whereupon would follow great inconvenience and although such an Oath hath been accepted of and allowed here yet the same doth not move us and we do not see any reason to multiply such Presidents The Declaration is that the Plaintiff was robbed of 10 l. de Denariis ipsius querentis and upon the Evidence it appeareth that the Plaintiff was Receivor of the Lady Rich and had received the said mony for the use of the said Lady And Exception was taken to the same by Shuttleworth but it was not allowed of for the Plaintiff is accomptable to the Lady Rich for the said mony And it was agreed that if he which was robbed after he had made Huy and Cry doth not further pursue the Felons yet his Action lyeth Mich. 26 Eliz. In the Kings Bench. CXXXVI Townsend and Pastors Case Feoffment by Coparceners Cestuy que uses NOte It was holden in the Common Pleas by
he conceived that during the vacation the rent should go to the King and therefore perhaps he especially limited it to be paid to the Dean and Chapter of York and there the Proviso did not make a Condition For although it was limited to be paid to the Dean and Chapter in the time of the vacation with a Proviso or by way of Promise yet there it is a Condition for all is one Corporation for the Dean and Chapter are part of the Corporation to whom it was reserved before for it was reserved before to the Bishop and his Successors But 15 and 16 Eliz. Andrews and Cromwells Case where John Blunt sold a Manor to Andrews and his Heirs and Blunt covenanted to suffer a Common Recovery for the better assurance thereof and afterwards there was a Proviso Provided always That Andrews re-grant the Advowson which was appendant to the Manor to Blunt for his life and because there it stands substantivè by it self therefore it was holden to be a Condition and yet truly it was not the meaning that for not granting of a pelting Advowson that the whole former Estate of the Manor being of great value should be defeated yet notwithstanding it was holden to be a Condition and there also the Opinion of Br. 35 H. 8. is controuled That where also the Opinion of Br. 35 H. 8. is controuled that where a Proviso is jumbled amongst Covenants that it doth not make a Condition Proviso never makes a Covenant therefore either the Sentence shall be void or it shall be a Condition As if a Lease for years be made Proviso that the Lessee for years do not commit Waste it is no covenant He said as to the second point that the same was adjudged between Andrews and Cromwel where a rent was payable every half year and there as here the whole rent was demanded and it was good for he is not to pay the one moiety and he is at his peril to pay the one moiety and he who denies the whole denies every part Et quicquid dicitur de toto dicitur de partibus It was adjourned Hil. 29 Eliz. In the Common Pleas. CLXII The Lord Mountjoyes and Barkers Case IN an Ejectione firmae upon a Special Verdict the Case was this King Ed. 6. granted the Manor and Hundred of Tremington in Fee rendring rent to hold of the Manor of East Greenwich in Socage reddendo annuatim 136 l. Queen Mary reciting the first Grant in the first year of her reign granted the rent and fealty and the Manors of Cauford D. S. Et etiam Manerium nostrum Hundredum de Tremington although she had not the Manor to the Marquess of Exceter after which the Marchioness being seized of the Manor of Cauford holden in Capite and of other Lands 4 and 5 Philip and Mary devised the Manor of Cauford D. S. and whereas she had nothing in the Manor of Tremington but the rent and fealty out of it she devised the same with the others to the Lord Mountjoy and also she devised divers Legacies and Annuities to her Servants and others And devised by the same Will that they should be levied of the Manor of Tremington and of the Manors of D. S. whereas D. S. were not Manors but Farms And one Barker was found Heir to the Devisor who claimed to have the third part The first question was If the rent and fealty here holden in Capite passed by the name of the Manor or not and if they passed what quantity passed Walmsley They do not pass by that name for this rent nec in rei veritate nec in reputatione was ever taken for a Manor Also she hath named it in her Will between those which are very Manors by which it appeareth that her intent was not to pass it unless it was a Manor as the other which sense is also fortified that they shall be levied parcelled and taken by which I conceive her meaning was that there should be some place to which the Devisees might resort to levy it Further It is taken for Law in Wills that a thing implyed shall not destroy a thing expressed But if by implication the Rent should pass then the Manor of Cauford should not pass which was her express will to pass As 16 Eliz. Dyer 330. where a man deviseth his Lands to one and his Heirs Males and if he dye without Heir of his Body c. Here he shall not have Tail general to the Heirs of his Body but to the Heirs males of his body for that was the express limitation and the other after but implication So 16 Eliz. Dyer 333. in Chapmans Case But our Case is better for that there are not words sufficient to warrant any implication for nec in veritate nor in common speech was it ever taken for a Manor 27 H. 6. 2. 22 H. 6. 39. Green Acre may pass by the name of a Manor although it be but an Acre of Land because it is known by such name In 27 H. 8. a man having suffered a common Recovery to his use willed that his Feoffees should sell c. So in Chapmans Case a man in his Will limited a Remainder to his Family there it is taken the same is a Remainder to those which are his next of Blood. So 41 E. 3. a man deviseth Land to A. his Daughter in truth she being a Bastard she shall have it because she is known by the name of Daughter So if there be Grandfather Father and Son the Father dyeth and the Son gives Lands to his Father and his Heirs the Grandfather shall have it for that the Son so called him 19 H. 8. Lands are devised to the right Heirs of J. S. who is attainted having Issue a Son the Son shall not have the Land for the word Heir intends one who may inherit but he cannot because a man attainted cannot have an Heir And that is a stronger Case than our Case in which there is not any affinity with a Manor for it is but a sum in gross but if it had been an Acre of Land peradventure it should have passed but being Rent Common Estovers or other Profits they cannot pass for they have not any resemblance to the Mannor but peradventure a man having a Manor parcel in Demesn and parcel in Services if he alieneth his Demesns and afterwards deviseth his Manor the Services will pass Gawdy All the difficulty of the Case is this If by the Devise the rent out of Tremington shall pass for if not then the third part thereof cometh to Barker And I conceive clearly That the rent shall pass for Wills shall have a favourable construction according to the intent of the Devisor and no part thereof shall be void if by any means it may be made good for intent then appeareth that something should pass out of the Manor of Tremington for otherwise a Clause in her Will would be frivolous For it is precisely found by the Iury that
neither at the time of the Will nor at the time of her death she had nothing of the said Manor of Tremington but the said Rent of one hundred thirty and six pounds Also it may be taken that she who devised was ignorant of the Law and conceived that it was a Manor when she had Rents and Services out thereof notwithstanding that those who are learned in the Law know that a Manor could not pass without there was two Suitors at the least 21 R. 2. Devise 27. Lands are devised to one for life the remainder Ecclesiae Sancti Andreae in Holborn there it is holden in an Ex gravi Querela that the Parson should recover for otherwise the Devise should be void if the Parson should not have the Lands and in Wills shall subserve and give place to the intent of the Party and therefore if a man deviseth that his Lands shall be sold for the payment of his debts his Executors shall sell them and to that intent the naming of them Executors is sufficient Plow Com. 523. in Weldens Case it is vouched to be adjudged that if one after the Statute of 27 H. 8. deviseth that his Feoffees shall be seized to the use of A. in Fee that it was a good Devise of the Lands to A. and yet then he had not nor could have any Feoffees c. But the Party was ignorant of the Statute and his intent to pass the Land was apparent in that Case the words were as much impertinent to the matter as in our Case for there he had not any Feoffees as here she hath not any Manor Br. recites That in 38 H. 8. it was holden by Baldwin Shelly and Morgan that if a man who had Feoffees to his use would after the Statute of 27 H. 8. that his Feoffees should make an Estate to J. S. that the Land should pass to J. S. 26 H. 8. Feoffments Faits 12. Land cannot pass by the Deed of an House for it cannot be parcel of an House but an Acre of Land may be given by the name of a Carve and a Carve of Land by the name of a Manor and yet a Carve can be no more a Manor than this rent yea Rents and Services more resemble a Manor than a Carve of Land. It cannot be intended that her Will was here to pass the Manor it self which was not in her but in another Also she by four years before had the rent and therefore it shall be intended that it was her meaning to pass the same which she her self received and no other thing and although in the Devise the rent be specially named and the Manor also yet the same shall not alter the Case for if a man grant the Reversion upon an Estate for life and by the said Deed grants the Land and the Tenant attorns and the Grantee deviseth all his Land the Reversion shall pass without all question If a man grant the Advowson of D. and in the same Deed the Church and Rectory of D. and the Grantee deviseth the Rectory of D. the Advowson shall pass In Adams Case Plow Com. 195. a man leaseth his Capital Messuage rendring rent there the question is If the Reversion or Rent shall pass It was adjudged That all which he had passed As to that that it cannot be levied out of the Rent for that no place is therein of Distress I say that she did not know whether a lesser rent might be paid out of a greater rent and 1 H 4. Multure was granted reserving rent and the Grant was good The words of the Will are All which Manors Lands and Tenements c. she devised to the Lord Mountjoy and these words expound her meaning for although the word Rent be not within the word Manor yet the words Lands and Tenements do comprehend it and words subsequent in Wills may express the Premisses As 16 Eliz. Dyer 333. Chapman seized in Fee of two Houses having three Brothers devised the House in which A. inhabited to his three Brethren and A. to dwell there and they not to raise the rent and devised the House in which B. his Brother dwelt to him and that he pay to C. his Brother 3 l. for to find him at School and otherwise to remain to the House Proviso that the Houses shall not be sold but shall go to the next of the Name and Blood which are Male and dyed B. his brother dyed without Issue the eldest of the two middle brothers entred and had Issue a Son and dyed It was a Question If the Son or the middle brother should have the House And it was holden that the Son of the eldest should have it in Tail which Exposition was by reason of the words in the Proviso that it should not be Sold and that it should go to the Heirs Males Shuttleworth The rent shall not pass by the Devise for the construction of a Will ought to be according to the words or according to the intent collected out of the words and not by a thing out of the Will for then a stranger shall be the maker of the Will of another And 19 H. 8. if a Will be doubtful it ought to be expounded for the Heir at the Common Law. And if the rent ought to pass it ought to have apt words and not the name of a Manor And thereupon he put the Case that where one deviseth certain Lands to one and afterwards his Goods Leases and other things to another All his Goods and Terms shall pass but not his Lands for that there wanteth apt words to pass them for the word other things shall not pass them and this set order ought to be observed for the avoiding of confusion And the Rent and Services shall not pass for the two parts admitting the words sufficient for they cannot be divided But Periam said That the rent might be divided Anderson said That it should be but a Rent-seck Periam said it was a Rent distrainable of Common Right but Anderson doubted of it but they all agreed that it might be divided but there should not be two Tenures Fenner The Rent should pass by the Devise of the Manor for there is do difference betwixt a Manor and a Seigniory in gross amongst Lay-men and then their intent shall be taken although it was not written by apt words for in Grants a Reversion shall be taken for a Remainder and à Fortiori a Devise And 7 E. 3. a Manor shall pass by the name of a Knights Fee and 19 H. 8. a Wood shall pass by the name of Land and 38 E. 3. by grant of totam terram which A. held in dower the Reversion shall pass Afterwards in Mich. Term the Plaintiff discontinued his Ation And Periam told me I being at his House that the Opinion of the Court was against the Plaintiff and if it had not been discontinued they would have given Iudgment accordingly Now this was the intent of the Lord Mountjoy The
of the body of the Husband and he said a Scire facias did lye upon the Fine well enough for the Fine is not void but only erroneous and being in its force this Writ doth well lye And he cited to this purpose 7 E. 3. Fitz. Sc. fac 136. where upon such a Fine levied and such Exception ut supra taken to it To which it was said by Herle that forasmuch as the Fine is excepted and yet in its force we ought to grant Execution and also 30 H. 6. none can take the first Estate in the Fine but he who is named in the Writ of Covenant but every Stranger may take by way of Remainder and such was the Opinion of the whole Court As to the matter in Law all the Court agreed That notwithstanding the Recovery the Demandant should have Execution for here the Land which by pretence of the said Recovery shall be Recoverd in value cannot go to the Estate which is given for the Estate given was to the Husband and Wife and the Heirs of the body of the Husband and then the Tenant against whom the Recovery was had was impleaded as sole Tenant in which Case the Vouchee when he comes in is to warrant a sole Estate but not another but now the Land to be recovered in value shall go to the Husband alone and the Wife shall have nothing so as the true Estate is not warranted and so not answered And he cited the Case of 38 E. 3. 5. in a Formedon the Tenant vouched himself for to save the tail and shewed that one A. was seized and gave the Land in Demand to the now Tenant and to E. his Wife in tail which E. is now alive and by award the Voucher was disallowed Because it was there said by Knevyt the Recovery in value cannot be according to the gift 45 E. 3. 18. Tenant in tail discontinues and takes back an Estate in Fee is impleaded and voucheth the Donor he shall be ousted of the Voucher for that he is in of another Estate and afterwards the Plaintiff had Iudgment to have Execution Mich. 33 Eliz. In the Common Pleas. CXCIII Foles and Griffins Case DEbt upon Obligation by Foles against Griffin the Condition was That if the Obligee may enjoy certain Tythes demised to him by the Defendant during his Term against all Persons paying yearly the Rent of three pound that then c. To which the Defendant said that the Plaintiff did not pay the said Rent c. Beaumont Serjeant moved that the Plea is not good but he ought to say that the Plaintiff enjoyed the Tythes until such a Feast at which time such Rent was due which Rent he did not pay for which c. Quod Curia concessit Mich. 33 Eliz. In the Kings Bench. CXCIV Young and Taylors Case IN Debt upon an Obligation upon Condition to perform the Arbitrament the Obligation was laid to be made in the Parish of Bow in London and the submission was of all things depending between them so that they made an Award of the premisses before such a day and said further that no Arbitrament was made The Plaintiff Replicando said that the Arbitrators made an Award in the Parish of Pancras in Warda praedict and layed a breach c. The Defendant rejoyned that 300 l. was depending in Controversie between them for a certain thing of which no Arbitrament was made upon which they were at Issue and tryed by a Visne of the Parish of Bow only which passed for the Plaintiff It was moved in stay of Iudgment That the Trial was not good for no place is alledged where the Controversie of 300 l. is depending for which cause it shall be tried where the Bond and Arbitrament was made to which it was said That the alledging the place where the Arbitrament was made is superfluous for which Cause the Trial is good And also the Submission being conditional the Award ought to be of all things submitted or else it is void contrary if it be no Condition Vide Cook 8 Part Baspoles Case Mich. 32 Eliz. In the Common Pleas. CXCV. The Queen and the Bishop of Lincolns Case THe Queen brought a Quare Impedit against the Bishop of Lincoln and others And the Case was That F. Bishop of Lincoln Predecessor of the Defendant was Patron of the Church and presented to the same being void one Garth who being inducted took another Benefice by which by reason of the Statute of 21 H. 8. the first Benefice became void and remained void by the space of seventeen years whereupon the Queen was entituled to present to the same by Lapse The said F. then Bishop presented to the same and afterwards was translated to Winchester and the Defendant now Bishop was suffectus And he certified into the Exchequer that the Incumbent presented by the said F refused to pay his Subsidy upon which he was deprived and if now the Queen shall present by reason of her Title by Lapse notwithstanding the plenarty after or if the Title by Lapse of that Presentment of the Bishop was c. was a great Question And the Case late adjudged between Beverly and Cornwel was cited but there the Case was that the Clark presented where the Presentment appertained to the Queen by Lapse died but here he is deprived which may be the Covin betwixt the Ordinary and him Fenner argued to the contrary and put divers Cases to prove that the Prerogative of the Queen did not alter the right of the Parties As the Queen hath a Seignory consisting of Homage Fealty and Rent and the Queen grants the Seignory to a Stranger reserving the Rent and afterwards the Tenancy Escheats the Rent is gone The Queen leases for years rendring rent to a Stranger upon Condition who enters upon the Lessee the Condition of the Queen is suspended The Queen purchaseth Lands in Borough English hath Issue a Son and dyeth seized he hath the Land now by descent afterwards a younger Son is born that Land shall be divested out of the possession of the King and the Royalty of his person doth not alter the right of descent And afterwards forasmuch as the same deprivation is the act of the Incumbent the refusal the act of the Ordinary himself the sentence and not the act of God in the case before cited It was the Opinion of the Court That Iudgment should be given for the Queen CXCVI. Windham and Meads Case WIndham brought an Action upon the Case upon the Common Law of England concerning Hostlers The Case was That the Servant of Windham brought his Masters horse to the Inn and there it was stollen To which the Defendant said That the said Servant brought the said Horse to the said Inn to be put to Pasture and thereupon the said Horse was put to grass and was there stollen it was ruled in that Case that the Inn-keeper should be excused but if the Inn-keeper of his own head without direction of the Owner
the Office. Vide Stanford Prerogat 54 55. and Vide 20 E. 4. 11. A. seized of a Mannor with an Advowson appendant is attainted of Treason the Church void the King without any Office shall have the presentment But admitting that it is not in the King without Office yet the Pardon of 23 Eliz. doth not extend to it For the words of the Pardon are Treasons Felonies Offences Contempts Trespasses Entries Wrongs Deceits Misdemeanors Forfeitures Penalties and Sums of Moneys and if by any of these words the matter be helped is to be considered and if any thing shall help it it is the word Forfeiture But I conceive that the same doth not extend to this matter for although it be an ample word yet it shall be construed to extend beyond the words accompanied with it which concern only personal things as Contempts Wrongs Trespasses as the Statute of 13 Eliz. cap. 10. which is penned by general words as Colledges Deans and Chapters Parsons Vicars and others having Spiritual Promotions that Statute doth not extend by construction to Bishops and they have Spiritual Promotion yet the Statute shall be construed to extend to the Parties named and other Inferiour Orders and Degrees and shall not be extended higher So in the Commission of the Peace ad diversas Felonias alia Malafacta c. those general words do not extend to Treason c. Vide for the Residue of this Case Venable and Harris's Case which was the same Case and is Reported in Leonard 2 Part fol. 122. Placito 169. Pasc 33 Eliz. In the Common Pleas. CCXXIX Downhall and Catesoy's Case IN a Formedon by Downhall against Catesby 3 Leon. 267. the Parties were at Issue and it was tryed by Nisi prius It was moved in Bank because that some of the Iury did eat and drink before they gave their Verdict that the Court would not receive the Postea Curia that we cannot do for we not know whether your Information be true or not and this matter ought to be examined by the Iustices of Assize or Nisi prius before whom the Trial was and they are to certifie thereof and then we shall have good cause to stay the Entry of the Postea In that Case it was said If any of the Iurors eat and drink before their Verdict at their own Costs it doth not make the Verdict void but if at the Costs of the Plaintiff or Defendant it is otherwise CCXXX Hil. 29 Eliz. In the Common Pleas. THe Sheriff took an Obligation of a Prisoner bailable upon condition that he should personally appear in the Kings Bench c. It was holden a good Condition not against the Statute of 23 H. 6. So if the Condition had been that he should appear for to answer contrary that he shall appear and answer for in the principal Case the word personally is not of substance for although he appears by Attorney yet the Condition is well performed and Iudgment was given for the Plaintiff Anderson reclamante Vide 27 Eliz. B. R. Sedford and Cutts Case 32 Eliz. In the Common Pleas. CCXXXI Haselwoods Case THe Case of Haselwood A seized of Land is indebted to the King by Obligation and enfeoffed B. of his Land And the Case of Fleetwood 15 Eliz. was vouched where it was holden That in purchase the debtor of the King was lyable But by Pigot who was of Counsel with Haselwood the Obligation in this Case was made before the Statute of 33 H. 8. or otherwise he should be charged 32 Eliz. CCXXXII Sir William Pelhams Case SIr William Pelham was Surveyor of the Ordinances and delivered of the Kings money to Painter Clerk of the Ordnance It was holden That for that money the Queen might have Account against Painter See this Case before Sect. 81. Trin. 29 Eliz. In the Common Pleas. CCXIV. Ognell and Vnderhills Case IN Replevin the Case was as appeared upon the pleading That Rob. Bouchier was seized of a certain Farm called Cruchefield Grange and leased the same to Sir William Raynsford for thirty years who dyed thereof possessed by reason of which the Interest thereof came to Raynsford as Executor of the said Sir William Raynsford who assigned the said Farm except a parcel of it called Hobbes to Sir Henry Bear for parcel of the term and afterwards assigned the said parcel called Hobbes for part of the term to Frekington and others and afterwards granted the residue of the said term not expired to the said Bear and Frekington and afterwards the said Rob. Bouchier granted a Rent-charge of 40 l. per annum percipiendum de omnibus terris renementis quibuscunque vocat the Grange of Cruchefield in the Parish of Stoneleigh in the County of Warwick nuper in tenura occupatione William Raynsford milit nunc in tenura occupatione Hen. Bear. Bouchier granted the reversion of Hobbes to Lewknor in Fee to whom Scarre releaseth all his right estate and demand in the said Land called Hobbes the Lease expired the rent behind Lewknor leased at will to R. the first Question was If the said Rent-charge shall be said issuing out of the said Lands called Hobbes for if c. then by that Release the rent is gone But the whole Court was clear of Opinion That the rent was not issuing out of Hobbes but out of the Lands then in the possession of Bear and not out of the Lands in the possession of Frekington Although it was objected by Walmesley Serjeant That the words in the Grant of the rent in tenura occupatione Bear shall be construed in the disjuncive quasi sive and then the Close called Hobbes although it was not in the Occupation yet it was in tenura of Bear. The Matter was at another day argued by Fenner Serjeant for the Plaintiff and he much relyed upon the word quibuscunque in the Grant of the Rent de omnibus terris quibuscunque commonly called Cruchefield Grange As if I grant to you all my Trees my Apple-trees shall not pass but if the Grant was omnes arbores meas quascunque they pass and that by the Emphasis of this word Quibuscunque So if I grant you Common for your Cattel in such a place none shall have Common but those which are Commonable shall have Common there contrary where the Grant is pro averiis quibuscunque And it was adjudged in the Chancery in the Case of the Bishop of Ely That where the said Bishop leased all the Demeasns of a Manor for years that by the said Lease the Park within the said Manor should not pass But perhaps if such a Lease had been Omnes singulas terras dominicales quascunque the Park would have passed And afterwards the Counsel of the Plaintiff seeing that the Court was of Opinion with the Defendant took Exception to the pleading The Defendant made Conusans ut Ballivus Administratoris of the Grantee of the Rent and doth not shew the Letters of Administration And as to
that It was agreed by the Court that that had been a good Exception if the matter had not been relieved by the Statute of 27 Eliz. of Demurrers Another matter was objected upon the Statute of 32 H. 8. cap. 37. upon the words of the said Statute so long as the Lands remain in the possession of the Tenant in Demeasn who ought immediately to have paid the said Rent And it was said by Anderson and Rhodes that the Conusans was good enough and within the relief of that Statute For Lewknor was the immediate Purchaser and although he had let the Lands to another at will that did not make any thing for yet the Estate of the Land is within the words of the Statute for the Land remains in the Seisin of the first Purchaser And note that in this case Bouchier dyed before the Lease expired so as the Rent was not determined in his life And afterwards Iudgment was given for the Defendant Mich. 30 Eliz. In the Kings Bench. CCXXXV Rawlins and Somerfords Case IN Ejectione firmae the Case was Cartwright possessed of a house for the term of 30 years demised a Stall parcel of it to Wartow for two years and afterwards assigned the whole house to Rawlins for all the years Rawlins redemised the same Stall to Cartwright for twenty years but Wartow did not attorn but before the said Redemise Cartwright by Deed indented demised the said Stall to Wartow for six years after the said two years ended and afterwards Rawlins redemised all the house to Cartwright for 21 years rendring rent with clause of re-entry and upon the Indenture of the said Redemise was endorsed that before the sealing and delivery c. it was agreed between the Parties that Wartow should have the said Stall according to the Lease for six years to him made And afterwards Cartwright redemised the said Stall to Rawlins for ten years and afterwards the Rent was behind And if the Rent reserved by Rawlins upon his demise to Cartwright was suspended or not was moved a question Cook argued it was not suspended for Rawlins had in the Estate but an Interest in futuro which cannot suspend the Rent before in possession And he put the Case 31 E. 1. Fitz. Discent 17. Lord and Tenant the Tenant is attainted of Felony and dyeth now the Seignory is not presently extinct For if the Lord takes Fealty of the Son the Seignory doth continue in Esse and Vide Acc. Fitz. N. B. 144. 26 E. 3. 72. Houghton the rent is suspended as if I lease Land and an Advowson rendrint rent and I take back an Estate in the Advowson now the rent is suspended But as to that it was answered That there the party hath a present interest in the Advowson but so it is not in the Case at Bar. And by Cook A. seized in Fee of three Acres makes a Lease of two of them for 21 years rendring rent and afterwards the Lessee leaseth one of the said Acres for years to the Lessor to begin two years after it is not a present suspension of the rent until the Lease come into possession c. And afterwards it was adjudged that by the Lease in futuro the rent was not suspended Pasch 28 Eliz. Rot. 255. Mich. 26 Eliz. In the Exchequer CCXXXVI The Guardians of the Monastery of Otleries Case IN the Exchequer it was found by Special Verdict 1 Leon. 4. That the Guardian and Chanons Regular of Otlery were seized of the Manor of O c. and that 22 H. 7. at a Court holden granted the Lands in question to W. and W. his Son for their lives by Copy according to the Custom of the said Manor and afterwards 30 H. 8. they leased the same Land by Indenture to H. rendring the ancient and accustomed rent and afterwards surrendred their Colledge c. and afterwards W. and W. dyed And if the said Lease so made during the Estate Customary notwithstanding the Statute of 31 H. 8. were good or not that was the Question being within a year before the Surrender c. And it was argued by Egerton Solicitor That the said Lease was void by the Statute the words of which are Whereof or in the which any Estate or Interest for term of Life year or years at the time of the making of any such Lease had his Being or Continuance and was not then determined finished or expired And therefore we are to see if this right or possession which W. and W. had at the time of the making of the said Lease was an Interest or Estate for Life And as to the word Estate est nihil aliud than measure of time for an Estate of Fee-simple is as much as to say an Interest in the Lands for ever and so of the rest and therefore W. and W. had at the time of the making of the Lease an Estate for the thing demised And although such Customary Tenants are termed in Law Tenants at will yet they are not simply so nor meer Tenants at will but Tenants at will secundum Consuetudinem Manerii which Custom warrants his possession here for life and therefore it is a more certain estate than an estate at will for the Copyholder may justifie against his Lord and so cannot a Tenant at will whose estate is determinable at the will and pleasure of his Lessor and although this estate is but by custom and by no conveyance yet it is such an estate which the said Statute intends non refert by what conveyance the estate is raised so it be an estate and this estate being supported by custom is acknowledged in Law to be an estate and so accounted in our Law and the Law hath notably distinguished Copyhold tenancies by the custom and tenancies at will at the Common Law for a Copyholder shall do fealty and have aid of his Lord in an Action of Trespass he shall have and maintain an Action of Trespass against his Lord his wife shall be endowed the husband shall be Tenant by the Curtesie without a new Admittance So customary Tenancies are within the Rules and Maxims of our Law As in the Case of Horewood There shall be a possest o fratris of it without admittance and it was adjudged 8 Eliz in the Kings Bench That if a Copyholder surrender to the use of another for years and the Lessee dyeth his Executors shall have the residue of the term without any admittance M. 14 15 Eliz. A Copyholder made a Lease for years by Indenture warranted by the custom the Lessee brought Ejectione firmae it was adjudged maintainable in the Common Pleas Although it was objected That if it be so then if the Plaintiff recover he should have an Habere facias possessionem and there Copyholds should be ordered by the Common Laws of the Land. 10 Eliz. Lord and Copyholder for Life the Lord grants a Rent-charge out of the Manor whereof the Copyhold is parcel the Copy-holder surrendreth to the use of
the Covenant shall enure to defeat and determine the Warranty And afterward Iudgment was given against the Plaintiff CCLXXIII Sir Francis Englefields Case Vide this Case Reported by Cook in Rep. 7. and by Popham 18. THe Case to recite at large was this Sir Francis Englefield Kt. being seized in Fee of the Manor of Englefield in the County of Berks and of divers other Lands in the first year of Queen Eliz. departed out of the Realm by Licence of the Queen for a time and remained out of the Realm in the parts beyond the Seas above the time of his Licence whereby the Queen by her Warranty under her Privy Seal required him to return upon which he was warned but did not come whereupon the Queen seized his Lands for his contempt After which the Statute of Fugitives was made 13 Eliz. upon which by Commissions found upon this Statute all his Lands were newly seized and afterwards 17 Eliz. by Indenture made between him and his Nephew and Sealed by the said Sir Francis at Rome the said Sir Francis covenanted with his said Nephew upon consideration of Advancement of his Nephew and after consideration to raise an use that he and his Heirs and all others seized of the said Manor c. shall hereafter stand and be seized of them to the use of himself for the term of his life without impeachment of Waste and afterwards to the use of his Nephew and of the Heirs Males of his Body and for default of such Issue to the use of the right Heirs and Assigns of the Nephew for ever with a Proviso that if the said Sir Francis shall have any Issue Male of his Body that then all the said Vses and Limitations shall be void and that the said Manors c. shall be as before Afterwards the said Sir Francis was attainted of Treason supposed to be committed by him 18 Eliz. at L. in partibus transmarinis and the Attainder was first by Outlary and afterwards by Act of Parliament 28 Eliz. by which the Forfeiture of the said Condition was given to the Queen and at the same Parliament it was Enacted That all and every Person and Persons which had or claimed to have any Estate of Inheritance Lease or Rent they not entred of Record or certified into the Court of Exchequer of into or out of any Manors Lands c. by or under any Grant Assurance or Conveyance whatsoever had or made at any time after the beginning of her Majesty by any persons attainted of any Treasons mentioned in the said Act after the 8 day of Feb. 18 Eliz. or within two years next ensuing the last day of the Session of the said Parliament shall openly shew in the Court of the said Exchequer or cause to be openly shewn the same his or their Grant Conveyance or Assurance and there in the Term time in open Court the same shall offer and Exhibit upon his or their Oath affirming that they have not the same nor can come by it or that it was never put in writing then the Effect thereof to be entred and inrolled of Record or else every such Assurance should be void and of none Effect to all intents and purposes saving to every person and persons other than the parties and privies to such Conveyance and such as shall not Exhibit the said Conveyance according to the true meaning of this Act all such rights c. Whereupon the said Francis the Nephew the 20 day of November 30 Eliz. in his own person affirmed upon his Oath that he had not the said Conveyance nor knew not how to come by it but delivered the Effect of the Assurance omitting the time when it was made otherwise than that it was made after the beginning of the Queens Reign and before the Treason committed by Sir Francis and before the Statute of 13 Eliz. against Fugitives and omitting also the last clause of the tender of the King and this he offered openly in the Court of the Exchequer the same day After which the Queen being moved with the said Condition made a Warrant by Letters Patents under the Great Seal dated 17 Martii 13 Eliz. to Rich. Broughton and Henry Bourcher Esquires for her and in her place and stead to deliver or tender to the said Francis the Nephew a Ring of Gold to the intent to make void the uses and limitations limited by the said Indenture and to return their proceedings upon it into the Court of Exchequer whereupon they made a tender of a Ring of Gold to the said Francis the Nephew the 18 day of November 31 Eliz. which he refused to receive And the two years after the said Session of Parliament was the 13 day of March 31 Eliz. and the said Broughton and Bourcher returned all this that they had done as before with their Commission out of the Exchequer And this Case being a great case and consisting of many doubts and questions was often argued And this Term scil 33 Eliz. It was argued by Moor of Counsel on the part of Francis Englefield and he said when Sir Francis Englefield covenanted to stand seized to the use of himself for life c. this was not any new use but part of the ancient use which was in Sir Francis before for there was no Consideration to raise a new use to himself for a Consideration is a cause or an occasion meritorial requiring a mutual recompence in fait or in Law Dyer 16 Eliz 33. b. mutual 1. of each part and here this ancient use remaineth For Sir Francis cannot simul semel agree and suffer and here is a bare Covenant without any Consideration on the part of Sir Francis which see Dr. and Student 100. cited by Br. Feoffments to Uses 46. A man cannot limit an use to himself to be a new use upon an Estate executed as upon a Feoffment but it shall be the ancient use much less upon a Covenant And that was Milfords Case Pasch 31 Eliz. Rot. 154 in the Kings Bench where an use limited to the right Heirs of the Feoffor was holden the ancient use quod vide also in the case of the Earl of Bedford and there is no difference between our case and the said cases unless in the said cases the use is limited in the end and in our case in the beginning of the Conveyance But perhaps it will be Objected That the particular Estate shall be good for necessity for to support the Estate limited in the Remainder which is limited upon good consideration for otherwise the Remainder shall be distrained That is not any reason for that conceit in Bayntons case in Plow Com. 307. 8 Eliz. hath been over-voted to be no Law in the case of the Lord Paget in this Court very lately And he said That the condition conceived in the Proviso is not given to the King. By the Common Law in case of Escheat the party comes in the Post but a Condition runs in privity And although
he could not put in a true Inventory and upon that the Plaintiff prayed a Prohibition surmising that he himself claimed Property in the said Goods and the Ecclesiastical Court would not allow of it and the Trial of the said Goods did belong to the Common Law And a Prohibition was granted Trin. 33 Eliz. In the Kings Bench. CCLXII Mountjoyes and Andrews Case IN Scire Facias upon a Iudgment in Debt The Defendant pleaded that heretofore a Fieri Facias at the Suit of the now Plaintiff issued directed to the Sheriff of Leiceâ—â—er by force of which the said Sheriff took divers Sheep of the Defendant Execution adhuc doth detain them Retorn of Writ It was holden by the Court a good Plea although he doth not say that the Writ was returned for the Execution is lawful notwithstanding that and the Plaintiff hath remedy against the Sheriff CCLXIII Vide this Case reported by Cook 1 Part by the name of Capells Case THe Case between Hunt and Gately in the Exchequer Chamber was now argued by Fenne That the Rent granted by him in the Remainder upon an Estate tail is good and shall bind the Land after the Estate tail determined notwithstanding the common Recovery suffered by the Tenant in tail in possession Before the Statute of Westm 2. of Donis Condic c. no Remainder could be limited upon an Estate tail for that which remained in the Donor was but a possibility and therefore then a Formedon in Remainder did not lye But the said Statute which provided a Formedon in the Descender provided also by Equity a Formedon in the Remainder for a Formedon in the Reverter as appeareth by the said Statute was in use in Cancellaria And now here in our case is a Remainder lawfully vested in the Grantor which he may dispose of as he sees good and therefore when he grants a Rent-charge out of it the same is a thing vested in the Grantee and by no subsequent act can be divested and although the Estate which was charged be now charged by the Recovery yet it is the same Land which was charged and therefore the charge shall continue as if a gift in tail be rendring Rent and the Donee levieth a Fine yet the Rent remaineth and the Donor shall distrain 48 E. 3. 3 9. So here If after the grant of this Rent Tenant in tail in possession levies a Fine by which the Remainder which was charged is discontinued and afterwards the Conusor dyes without Issue the Grantee shall distrain upon such possession which passed by the Fine As if A. lease to B. for life and afterwards grants a Rent out of the same Land to C. B. aliens in Fee and dyes although that A. cannot re-enter but suffers the said torcious Estate gained de novo by wrong to continue yet B upon such possession shall distrain for the Rent for it is the same Land which was charged and by Law a thing in abeyance may be charged As if a Parson grant a Rent-charge to begin after his death and the Patron and Ordinary confirm it it shall bind although the Grant doth not take effect in the life of the Grantor but when the Freehold is in abeyance So if the Patron and Ordinary in the time of Vacation grant a Rent-charge out of the Parsonage the same is good and shall bind the Successor and yet at the time of the Grant the Freehold of the thing granted is in abeyance Vide 5 E. 6. Dyer 69. That a Rent which is not in esse shall be bound by a Iudgment 22 E. 3. 19. 5 E. 3. Fitz. Dower 343. By Bracton Jus concerning a real thing is threefold 1. Jus terrae scil the Ownership of the Land. 2. Jus in terra as a Rent Common c. 3. Jus ad terram scil Right permanent And by this Common Recovery in our case Jus terrae shall be bound but not Jus in terra And he said That if Land be given to A. in tail the Remainder to the Kings Villain in Fee and before any claim by the King A. suffers a common Recovery and dyes without Issue this Recovery shall not bind the King. And as to the Case of 26 H. 8. 2. which hath been Objected against the falsifying of the Recovery where a Parson made a Lease for years and afterwards in a Quare Impedit brought against him and the Patron they pleaded faintly to the intent to make the Lessee lose his Term now such a Lessee cannot falsifie in such case the Parson by another way might have defeated the Lease as by Resignation but in our case the Grantor of this Rent by no way might defeat his Grant And he said a common recovery did not bind Dower therefore nor this rent And if Tenant in tail in possession grants such a rent and after suffers a common recovery the rent shall stand why not also in the case of a remainder for upon them both as well the remainder as the possession the recovery operatur And recoveries shall always bind the possession and no farther and shall not disprove the right but the possession And the recovery by it self doth not bind the possession but in respect of the Voucher without which no recovery shall bar and that in respect of the recompence which the Law presumes c. which recompence cannot extend to this Rent-charge and then there is no reason that he to whom it was granted should be prejudiced by this recovery and always in case of recompence the Law is very precise As if I grant unto you an Annuity of 30 l. per Annum until you be presented to a competent Benefice a litigious Benefice is not a recompence intended nor shall determine the Annuity nor a Benefice of 15 l. If two make an exchange for their Lives and one of them dyeth the exchange is not determined but the Heir of him who dyeth shall enter and retain the Land as long as the other shall live Ad quod Manwod Chief Baron subsidebat And there is a great difference between a Lease for years and a Rent-charge for at the Common Law upon such Recovery the Lessee for years was bound contrary of a Rent-charge for it was unreasonable that a thing not demanded by the recovery should be bound by it especially because that the Land rendred in value shall not be charged with the rent Walmesley Serjeant contrary A remainder upon an Estate tail is debile fundamentum and cannot uphold with assurance a Rent-charge against a common recovery and it cannot be found in any Book but in 5 E. 4. 2. That a remainder upon an Estate-tail expectant may be charged for an Estate-tail is in Law presumed to be perpetual and therefore what Lands are entailed by Fee the words of the Fine are Sibi haeredibus de Corpore suo exeuntibus imperpetuum And it is the common learning in our Books that every Estate of Inheritance be it Fee-simple or Fee-tail shall be
intended to be continued till the contrary be shewed And the Authority which the Owner of a Remainder hath upon it is but conditional scil If the Tenant in tail in possession doth not countermand it by a recovery c. And also the possession upon which the Avowry is made is not the same possession which was charged but is a Foreign possession gained by the recovery and therefore before the proper possession be recontinued there can be no Distress nor Avowry for the Land is not reduced in the privity of Estate which was charged and if he in Reversion upon such Estate tail would grant his reversion rendring rent and afterwards the Tenant in tail in possession suffers a common recovery and dyeth without Issue Now the reversion being destroyed the rent is gone And he put this Case Tenant in tail grants a Rent-charge to begin after his death without Issue and afterwards suffers a common recovery and dyes without Issue it is a good rent and shall bind the Recoveror c. At another day in the Exchequer Chamber the Case was argued again by Snagg Serjeant for the Defendant and he was very long in proving that a remainder might be charged as in this case But the Court discharged him of that and directed him to argue to this Point If this recovery did discharge the rent c. wherefore he argued That these common recoveries are false and feigned things false in the Title and covenous in the Proceedings and all in prejudice of a third person And Vide 14 H. 8.3 such common recoveries are holden fraudulent and therefore by fraud and covin being so odious in our Law we ought not to give and allow unto them so much force as is due to unfeigned recoveries for these common recoveries do not go in disaffirmance of the former possession nor in any eviction of it but for the most part in affirmance and the Estate gained by this recovery is under the Estate of him against whom the recovery was had and he is in by him for common Recoveries are no other but common Assurances And in our Case the imagined Recompence cannot come to him who hath by the recovery lost his rent and therefore it is not reason that the recovery should bind as to this rent Vide 12 E. 4. 19 20. Tenant in tail discontinueth and takes back an Estate to him in Fee and afterwards a common recovery is had against him it shall not bind the tail for the presumed recompence shall go to the Estate which he hath lost scil the Estate in Fee and not to the Estate tail whereof at the time of the recovery he was seized So in our Case the Land which by Fiction of Law is to be yielded in value upon this Voucher shall not extend to the benefit or recompence of the Grantee of the Rent-charge but only to H. who hath lost his remainder and his new remainder which comes in lieu of the former shall not be charged with this rent And therefore the remainder which by this recovery is drawn out of H. transit cum suo onere cum acciderit shall answer and shall yield the rent according to the purport of the Grant. As 33 H. 6. 4 5. two Ioyntenants are The one grants a Rent-charge and afterwards releases to his Companion he shall hold the Land charged notwithstanding that he be now fully in by the Feoffor And if there be Lord and Tenant and the Tenant grants a Rent-charge in Fee and dyeth without Heir so as the Land goes to the Lord in point of Escheat yet the Lord shall hold the Land charged And as to the Statute of Fraudulent Conveyances 27 Eliz. cap. 4. the same cannot extend to this Grant for here this Grant is upon consideration of Nature made to his own Son for his advancement Popham Attorney General to the contrary And that neither the Grantee of this Rent nor he who makes Conusans in his right shall falsifie this recovery And he put a difference where the party who leaseth or chargeth a remainder is bound by the recovery voluntarily and where involuntarily for where the recovery is suffered voluntarily there the Grantee or Lessee shall not be bound by that recovery but they shall falsifie But where as our Case is there the Party who chargeth or leaseth is bound involuntarily by such recovery there all Interests are bound and the charge is subject to the same mischief as the remainder it self out of which it is issuing Vide 7 H. 7. 12. He in the remainder in Fee shall not satisfie a recovery had against the Tenant for life but he is put to his Writ of Entry ad terminum qui praeteriit in which he shall falsifie and not by Entry much less he in the remainder upon an Estate tail shall not falsifie and falsifier lyes properly where the Party who grants or leaseth against his Grant or Lease practiseth by such recovery to avoid or defeat his own Estate and by consequence the Interest of his Grantee or Lessee But in our Case there is not any such matter for the Grantor H. was not party or privy to this recovery nor Tenant nor Vouchee and therefore no Covin and then no Voucher and all the Cases in our Law of falsifying of recoveries are upon such matter And he put the Case of 19 E. 2. Fitz. Title Assise 82. where the Conusee of a Statute Merchant having sued Execution one who had no right impleaded the Conusor and by Covin recovered against him and by Execution upon that recovery ousted the Conusee it was holden he should have an Assise and falsifie for here he who party to the recovery Donee in tail the remainder over in Fee upon condition suffers a common recovery the Condition is gone And as to the Statute of 21 H. 8. cap. 15. Falsifying is not given in our Case by the said Statute the words of which are Where divers Men have leased their Land to Farm and afterwards after such Leases made the Lessors their Heirs and Assigns have suffered Recoveries Within which words our Case is not for he against whom the recovery was had was not our Grantor his Heir or Assign So if there be Tenant in tail the remainder over to another in Fee he in the remainder makes a Lease for years and afterwards Tenant in tail in possession suffers a common recovery the Lessee shall not falsifie for that Lease was not made by him against whom the recovery was had And it is clear that by the Common Law the Grantee of a Rent-charge cannot falsifie against the Grantor his Heirs or Assigns But it was a doubt as it appeareth 7 H. 7.11 If upon a faint pleader the Lessee for years might be received for the Statute of Gloucester extends but to default or re-disseisin but now by the Statute of 21 H. 8. cap. 11. in three Cases Default Reddition and Faint pleading such Resceipt lyes which proves that in case of rent
as the Statute of 11 H. 8. hath ordained in case of a Lease for years where the Lessor his Heirs or Assigns have suffered the recovery and not otherwise And afterwards he argued very much upon the reputation and dignity of common Recoveries that they are the strongest and most effectual Assurances in the Law and therefore they ought to be countenanced rather by the Iudges than in any part diminished or disabled and we ought to consider of them Non ex rigore juris rigida disquisitione but according to the common use and practice what is the ground and foundation of these Recoveries And so Iudges have used heretofore to examine Matters which peradventure according to the strict Rules of the Common Law drew them away But they perceiving that a dangerous Consequence thereby would follow to an infinite number of the Kings Subjects the Law having been otherwise practised before have framed their Iudgments not according to the exact Rules of Law but to avoid the Inconvenience aforesaid according to the common and received practice c. Nam communis Error facit jus and to that purpose he cited a Case very lately adjudged in B.R. viz. A Writ of Error was brought in B. R. upon a Iudgment given in Wales and the Error was in this That the Writ was returnable coâ—am Justiciariis Domini Regis Comitatus c. where it should have been coram Justiciariis Magnae Sessionis Dominae Reginae c and such are the words of the Statute of 34 H. 8. cap 26. the which Sessions shall be called the Kings great Sessions in Wales and notwithstanding that the Iustices in strict consideration of the Law thought the same to be Error for the said Statute had given to the said Court such name yet because it was well known to the Iustices That that was the common course in the said Court ever after the erection thereof And also if the said Iudgment should be reversed for that cause many Iudgments should be also reversed which should be a great disquietness and vexation to the whole Country there they in their discretion thought it convenient to qualifie the Law in that point and so to avoid the said Inconvenience affirmed the said Iudgment So in the case at Bar If this Rent-charge should stand against the said recovery no inconvenience should be so firm but it should be impeached no Title so clear but should be incumbred therefore for the common repulse of many the strict rules of the Law ought to yield to common practice for the avoiding of a common inconvenience it hath been holden for Law when Tenant in tail maketh a feoffment in fee the Feoffee is impleaded voucheth the Tenant in tail now forasmuch as he cometh in as Vouchee it is now said that he cometh in of all his estates I do not see any reason for that but common allowance practice and experience c. It was adjourned c. Mich. 27 Eliz. In the Kings Bench. CCLXIV Baxter and Bartlets Case IN Assise of Freshforce by Baxter against Bartlet upon Null tort Null Disseisin pleaded it was found for the Plaintiff who had Iudgment upon which the Tenant brought Error for that the Assize have generally found the Disseisin but have not enquired of the force And after many motions the Iudgment was affirmed CCLXV. Sir Henry Gilfords Case IT was found upon a Special Verdict That Henry Gilford Citizen and Freeman of London 7 Feb. 6 E. 2. seized of a Capital Messuage Devised the same by these words Lego volo Quod omnes Domus reddit ' quae habeo in Villa de London ordinentur assignentur per Executores meos ad sustentationem trium Capellanorum qui pro vita celebrabunt in Ecclesia Sancti Pauli London Et ad hoc faciend ' Do eis plenam potestatem and made his Executors William Staunton and others and dyed the Will was Proved and Inrolled according to the Custom Afterwards the Executors by their Deed bearing date 7 E. 2 granted and assigned the said Capital Messuage and his other Tenements in London to the Dean and Chapter of Pauls in London and their Successors Habend ' tenend ' in forma sequenti Haec est finalis Concordia c. That the Dean and Chapter shall have the said Lands for ever to find yearly a competent Sustenance of 10 Marks to a Priest to celebrate Mass for the said Henry Gilford and all Souls and that the said Priest at all hours of Divine obsequies should give his attendance in the said Church and faithfully do his Office to say Mass and Prayers according to the Degrees and Customs of the said Church and that the Dean and Chapter should find Bread and Wine and Massing-cloaths and Torch-light and granted the residue of the profits of the Lands to celebrate an yearly Obit and for the perpetual security of the said Chauntry the said Executors granted to the Mayor and Commonalty of London 20 s yearly rent for ever Ita quod the Mayor and Chamberlain for the time being presented a meet and convenient Chaplain to the said Chauntry to the said Dean and Chapter within 15 days after the Avoidance the which Chaplain the Dean and Chapâ—er are bound to admit And the form of the said Conveyance was such We the Executors H. G. do grant and assign to the Dean and Chapter of Pauls all the Lands Tenements and Rents aforesaid to have and to hold to them and their Successors for the sustentation of a Chaplain perpetual and his Clark for the said H. G. and all Souls receiving from the said Dean and Chapter 10 Marks for the celebrating of the said Obit of the said H. G. And that the Grant and Assignment of the said 20 s. to the Commonalty in the relief of the said Chauntry is such scil To have and receive of one Shop in Cheap maintenance of the said Chauntry aforesaid And that the said Dean and Chapter oblige themselves and their Successors and the Church to pay the same to the said Priest and Clark and that it shall be lawful for the Mayor and Commonalty aforesaid to distrain for the said Rents By virtue of which Will and Indenture the Dean and Chapter enter and were thereof seized in their demesne c. and that at all times after they had taken the profits thereof until 2 E. 6. and that the Dean and Chapter of the profits of the premises had yearly paid 10 Marks for the stipend of the said Priest And further the 27 July 16 H. 8. the Dean and Chapter demised the same to F. Cole for 40 years and that afterwards 15 Maij 36 H. 8. the said Dean and Chapter leased the same to Nicholas Wilford for 50 years rendring 9 l. Rent with Clause of Distress if the Rent was behind by half a year being demanded the Lease should be void which N. W. 1 E. 6. devised the same to his Wife who devised the same to Tho. Wilford the
rather a portion of the profits c. and therefore the Land shall be said the Chauntry and not the Sum and here the intent of the Statute extends to the intent of the Founder So that if the intent of the Founder was to give the Land to Superstitious Vses the same is within the Statute If Cestuy que use wills that his Feoffees have the profits of his Lands ut supra to the Sustentation of a Chauntry Priest and the Feoffees imploy but 20 l. per Annum whereas the Land is of the value of 100 l. per Annum by this Statute the King shall have all for the intent of the Founder was That all should be imployed And so here for upon the Matter the Dean and Chapter are but as Feoffees and see that this Statute of Chauntries makes a great difference between Obits and Lights and Chauntries for in the Case of Obits and Lights the King shall not have but that which was imployed Whetstones Case was That Whetstone seized of the Manor of Cocke made a Feoffment thereof to certain Feoffees to find two Obits in such a Chappel and with the residue of the profits to maintain the Chappel and Iudgment was given for the Queen Here the Condition knit to the Reversion upon a Lease made by the Dean and Chapter to Nicholas Wilford passeth to the King by the Act of Parliament for a Condition is an Hereditament and when the King grants over the reversion to Butcher the Condition also passeth by 32 H. 8. Bromley Solicitor The Statute extends to Chauntries in existence only and not to Chauntries in reputation Chauntry hath divers significations in Law 1. For the Service which the Chauntry Priest is to do as cessavit de Cantaria 2 Sometimes for the Advowson of the Chauntry scil Quod permittat praesentare ad Cantariam 3. Sometimes for the Body of the Chauntry scil the Land of which it is endowed and in that sense it is taken by the Statute I will agree if the same had been an ancient Chauntry time out of mind c. and the Incumbents thereof had taken the profits and made Leases of it that then it should be a Chauntâ—y within this Statute for it might be corporated by prescription But the Chauntry here in question is not a Chauntry by prescription for the beginning of it is known so it is a Chauntry in reputation only and not in facto And he said That in that case the rent limited to the sustentation of the Priest shall go to the King and not to the Land for the Land was not given for the sustentation of a Priest but the rent only so as the Land was not immediately imployed for the finding of the Priest And he resembled this case to the case lately in question upon the Statute of 31 H. 8. An Abbot was seized of a great Wood which was never imployed in kind to the use of the House being seven Miles distant from the House but was never in Lease but was yearly sold by parcels and the Woodward rendred an Account of the same to the Auditor And the Opinion was That a Lease for years made of it within a year before the Dissolution was not within the said Statute for it was not immediately imployed for Hospitality But see the same reported by the Lord Dyer to the contrary 3 4 Eliz. 207. that such a Demise was void although that the Wood was not immediately imployed c. And see also the words of the Statute scil That the Land shall be in the actual Possession of the King in as ample manner as the Priest had it and the Priest had nothing in the Land but only in the Rent It was adjorned to be further argued c. Temps Roign Eliz. CCLXVI. Harveys Case HArvey seized of a Manor made a Feoffment thereof to divers persons to the use of himself for life and after to the use of his Son and the Heirs Males of his Body and if the said Son or any of the Heirs males of his Body discontinue or alien otherwise than for 21 years or three lives that then his Feoffees should be seized to the use of Nic. Harvey his Brother in Fee the Feoffor dyed the Son made a Lease for 21 years and afterwards discontinued against the Proviso if that lease should bind Nic. Harvey who came in by the latter use c. Dyer It is hard to avoid the lease for at the time of the making of it the lessor had a good interest and authority to make the lease and the act which impeacheth the Estate of the lessor commenceth after the lease by the discontinuance and therefore shall not avoid the lease Manwood The second use doth determine the first use and all Estates derived out of it Mounson contr ' For here this word Otherwise than for 21 years c so as such a lease is excepted As if a man man makes a Feoffment in Fee to the use of J. S. and his Heirs until J. D. shall pay to him 20 l. and then to the use of J. D. and his Heirs here if J. S. makes a a lease for years and afterwards the Monies are paid to J. D. now J. D. shall hold the Land discharged of the lease for there is no word Otherwise c. for these words Otherwise qualifie the second use Dyer The word Otherwise amounts to an Exception Manwood doubted of it and moved and demanded if the wife of the Cestuy que use should have Dower or not Barham conceived that she should c. CCLXVII Mich. 31 Eliz. In the Common Pleas. TEnant in Socage made a lease for four years and dyed his Heir within age of 8 years the Mother being Guardian in Socage leased by Indenture to the same lessee for 14 years It was holden that in this Case the first lease is surrendred but otherwise it is of a lease made by Guardian in Nurture CCLXVIII Mich. 29 Eliz. In the Common Pleas. IN Debt it was found for the Plaintiff 20 Eliz. and 21 Eliz. the Plaintiff released to the Defendant and the continuance was made until this Term scil Mich 29 Eliz. per Curiam advisare vult And now the Plaintiff against his own Release prayed and had Iudgment A Release pleaded after Judgment and Verdict without any knowledge to the Defendant and Process of Execution issued and now Walter a Clerk of the Court on the behalf of the Defendant shewed the Release to the Court and also the whole special matter and prayed the Release of the Court against this practice Anderson presently granted a Supersedeas But afterwards before the Process issued forth he and the other Iustices were of Opinion That the Defendant could not plead the said Release nor any further matter after Verdict and demanded the question of Nelson chief Prothonatory who advertised the Court That he could shew a President where an Arbitrement had been pleaded after a Verdict and Issue joyned upon it and that
to it because it ought to be Liberam Elemosinam without puram perpetuam Also it ought to be with a double ee and not Elemosinam sed non allocaturâ— for as to the first Exception it is but Surplusage and as to the other it is the common course Another Exception was taken to the Writ because that the words are Quod clamat este jus haereditat ' sua without saying in jure Collegij Anâ—erâ—on The Writ is good enough If a Parson pleads that he is seized he shall say in jure Ecclesiae for he hath two Capacities and without those words he shall be intended to be seized in his own right But if an Abbot plead that he was seized he needs not such words for that he hath not any other capacity And so of Dean and Chapter Mayor and Commonalty and afterwards the Writ was awarded good and that the Tenant should answer over Vide Liber Entries 236 237. It was also moved If the Colledge should count of his Seisin within 30 years because that the Corporation never dyes and then if he count upon his own possession And it was holden That if the Warden of the Colledge that now is was ever Seised he ought to count upon a Seisin within 30 years But upon the Seisin of his Predecessor he ought to count of a Seisin within 60 years as another common person For the change of the Head if such Seisin is as the dying seized and descent of a common person Mich. 15 Eliz. In the Kings Bench. CCLXXVIII Wood and Chivers Case IN Ejectione firmae between Wood and Chivers the Case was That the Bishop of Salisbury let the same Chivers the Manor of Lanington for 80 years for 40 l. rent payable at four usual Feasts upon Condition that if the rent be behind by the space of three Months after any of the Feasts in which c then a re-entry The Bishop dyed after confirmation J. S. was created Bishop who granted to R. the Office of Receiver of all his Revenues c. exercend ' per se vel Deputat suum and afterwards the Bishop made a special Letter of Attorney to the said R. to demand the rent and if it were behind to re-enter R. at the last day of the three Months came to the Capital Messuage of the said Manor an hour before the setting of the Sun for to demand the rent due at Midsummer then last past but none was there on the part of Chivers the Lessee to pay the rent for which R. left his Servant in the Hall of the said Messuage commanding him to stay there and if any came to pay the said rent that he give to him Notice thereof and afterwards he went out of the same House and walked in a Lane which was within the Gate of the House and did not return into the House until the Sun was set and then he returned and because the rent had not been paid he digged a Clod of the Land in the Name of the Bishop and so re-entred And afterwards the Bishop let the said Manor to W. for three years by Deed signed and Sealed and because Câ—â—vers continued his possession notwithstanding the re-entry he made also a Letter of Attorney to M. to enter into the said Manor in the Name of the Bishop and to deliver the said Deed of the said Lease to the said W. upon the Land as his Deed and these two Deeds the Bishop in his Chamber delivered to the said W. but not as his Deed But he said unto him Here is the Lease and a Letter of Attorney to M. and he shall enter in my name and deliver to you the Deed of his upon the Land as my Deed upon the Land Whereupon he took the two Deeds and delivered them over to M. who by force thereof entred upon the Land c. An Exception was made because it doth not appear here that the Bishop delivered the Letter of Attorney to M. himself nor to the use of M. and then it may be taken that the Deed of Letter of Attorney was delivered to M. to keep only and not as his Deed. But that Exception was now allowed For it was holden that the Livery in the Manor was good enough and so the Letter of Attorney sufficient for in all Deeds of Feoffments in which Letters of Attorney are contained the Livery of the Deed is to the Feoffee only and no mention made of any delivery to the Attorney for by such Letter of Attorney no Interest is to pass but only an Authority And note It was resolved by all the Iustices That in the computation of these three Months there ought to be allowed to every Month 28 days And now we are to see if this Rent be well demanded because the demand was made an hour before Sun-setting and then the party went out and walked in the Lane till the setting of the Sun without any other demand And it was moved that this walking in the Lane which was not a common High-way but a private way and that the House of the said Farm was of the one side of the Lane and the Farm-land on the other and so the Land parcel of the Farm and then his walking there is a continuance of the demand quod Catlin concessir was the Lane a High-way or not for the Manor is on both side And it was agreed by all the Iustices That if the Lessor cometh to the Land before the last hour viz. in the Morning or in the Afternoon and demands the Rent and afterwards goes off the Land and is not there at the last instant of the day the same is not a sufficient demand although that return be presently after the Sun is set And by Gerrard Attorney General If the Lessor cometh upon the Land at the last day before the last instant as in the morning c. and demands the Rent and continues there upon the Land till the Sun be set without making any other demand yet the demand for the Manor is good enough for his presence there is the continuance of the demand Quod fuit concessum per totam Curiam And by Catlin If the Lessor after his demand in the Morning departeth off the Land and before the last instant returneth and stays upon the Land till Sun-setting there is the continuance of a demand without any further demand which Wray Chief Iustice concessit And it was holden in this case That where R. left his Servant in the House to stay there and to signifie to him that if any person came to pay the Rent that that was not any continuance of the demand for R. himself was but a Servant and he in that business could not make a Servant And Catline said That the Bishop himself might by word command his Servant to demand a Rent and to make a Re-entry Quod fuit concessum but in our Case R. had not commanded his Servant to make any demand And so here upon
Land Rents and Reversion until of the Issues and Profits thereof certain Sums of Mony should be paid to his younger Sons and dyed And Exception was taken to the pleading because it is not specially shewn that the Land devised was holden in Socage And that was holden a sufficient Exception And the Court was of Opinion That the Opinion of Dyer Devises Whiddon and Bendloes in 16 Eliz. was not Law for by the common Law no Land was devisable but by Custom which ought to be pleaded where Title is made by Devise Tenances And now by the Statute all Lands holden in Socage are devisable and but two parts of the Land holden by Knight Service and therefore he who would make Title to himself by a Devise ought to shew the Tenure of it and so it was lately adjudged in the Kings Bench in Thompsons Case And by Anderson and Periam This Feoffment was well executed for the manner of it Attorneys make Livery for the Letter of Attorney is Conjunctim divisim ad intrandum in omnia singula praemissa and upon these words one Attorney may make Livery in one parcel of the Land and the other Attorney in the other parcel and in this case if one of the said Attorneys make Livery in one part only without medling with the residue by himself or by any other the same shall pass for it is not necessary that all pass or nothing at all 7 Eliz. Dyer 79. CCCXI. The Dutchess of Suffolks Case ADrian Stokes and the Lady Francisca Dutchess of Suffolk his Wife brought a Quare Impedit against the Bishop of Exeter and others The Bishop pleaded and demanded Iudgment of the Writ because he said It appeareth by the Writ Quod praedicta Francisca uxor praefati Adriani nominatur in dicto Brevi Domina Francisca Ducissa Suffolk ubi per Legem terrae eadem Francisca by her Marriage betwixt the aforesaid Adrian and her the said Frances had lost her name of Dignity and ought to be named Francisca uxor praefati Adriani Wherefore and because the said Frances is named Lady Dutchess of Suffolk in the said Writ therefore he demanded Iudgment of the Writ And afterwards the Plaintiffs did discontinue their Suit and durst not proceed Vide the Case 7 E. 6. Dyer 79. Mich. 4 5 Phil. Mary CCCXII The Queen Due and Kirbys Case THe King and Queen brought a Writ of Disceit against Due and Kirby and declared That Colley was seized of certain Lands in Fee and holden of the King and Queen as of their Manor of Westbury which Manor is ancient Demesne and so seized levied a Fine to the said Due for Conusans de droit c. Due rendred unto Colley for life the Remainder over to Kirby in Fee Colley dyed Kirby entred as in his Remainder Kirby pleaded That the Land is Frank-fee c. upon which they are at Issue which Issue depending not tryed Due dyed It was moved that the Writ should abate But it was allowed for this Action is but Trespass in its Nature for to punish the said Disceit And Due had nothing in the Land but is named only because he was party to the Disceit And no Land is to be recovered but only the Fine reversed Pasc 26 Eliz. In the Kings Bench. CCCXIII. Russels Case RUssel was condemned in an Action of Debt Execution and after the year and day the Plaintiff sued a Capias ad satisfaciend ' against him and he was taken by force of it and committed to the Marshal as in Execution It was holden by the Court That the same was a void Execution and not only avoidable by Error and therefore the Defendant was discharged for it is not at any Execution and the Plaintiff may have a Scire Facias when he will. Pasc 26 Eliz. In the Kings Bench. CCCXIV Wroth and Capells Case BEtween Wroth and Capell the Case was 3 Leon. 102. That A. was indicted upon the Statute of 8. H. 6. and Exception was taken to the Indictment because there were no words of Freehold in it or to prove that the party grieved had any Freehold whereof he might be disseised But because the words of the Indictment were Expulit disseisivit which could not be true if the party expelled and disseised had not Freehold therefore the Exception was not allowed c. Another Exception was taken to the Indictment for that the words were in unum Tenementum intravit and this word Tenementum is too general and an incertain word and therefore for that cause the party was discharged But the Indictment was further in unum Tenementum 10 Acras terrae eidem pertinent and as to those Acres he was put to answer CCCXV. Pasc 26 Eliz. In the Common Pleas. Execution NOte It was agreed by the Court and affirmed by the Clarks That if an Action of Debt be brought upon an Obligation against two upon one Ioynt Praecipe and the Plaintiff hath Iudgment to recover that one Ioynt Execution ought to be sued against them both but if the Suit were by Original and several Praecipe's Execution might be sued forth against any of them Mich. 8 9 Eliz. In the Common Pleas. CCCXVI. Belfield and Rous's Case IN Dower by Sibill Belfield who was the Wife of Anthony Rous against Thomas Rous they were at Issue upon Detinue of Charters and it was found for the Demandant and it was further found That the Husband of the Demandant of whose Seisin she demanded Dower dyed having Issue Charles Rous Quodque idem Carolus dict' Sibill perceperunt receperunt per spacium sex annorum proxime post mortem dict' Anthonij the Issues and Profits of the said Lands whereof the Demandant now demands Dower and that the said Charles afterwards dyed without Issue after whose death the said Thomas Rous entred c. And Iudgment was given for the Demandant and to recover damages after the death of her Husband CCCXVII Pasc 7 Eliz. In the Common Pleas. Uses BEfore the Statute of Vses a Feoffment is made to the use of a Man sole and a Woman sole and their Heirs and afterwards they inter-marry and afterwards the Statute of Vses came It was the Opinion of the Iustices That they should hold the Land in such sort as they held the Vse scil by several and divided Moieties for by the said Statute the possession shall be executed to the Vse in such Nature Condition and Quality as it was before Mich. 28 29 Eliz. In the Kings Bench. CCCXVIII Sir Gervaise Clyftons Case A Quo Warranto was brought against Sir Gervaise Clyfton 3 Leon. 184. Quo Warranto and shewed That the said Sir Gervaise was seized of a Manor and a Messuage within which he claimed to have a Court with view of Frank-pledge and other Liberties and that without any Grant or Authority usurpavit Libertates praedictas That the Defendant pleaded Quod non usurpavit Libertates praedictas
she might disagree CCCXXXI Mich. 21 Eliz. In the Common Pleas. A. B. and C. three Brothers A. hath issue and dyeth the middle Brother Purchaseth Land and deviseth the same to his Son in Tail and if he die without Issue that the Land shall remain to the King and Lineage of the Father sc of the middle Brother and if the Son of the eldest Son or the youngest Brother should have the Land was the Question and it was the opinion of the Lord Dyer That the Son of the eldest Brother should have it CCCXXXII Mich. 21 Eliz. In the Common Pleas. A Lease for life was made to B the Remainder to C. and D. in Tail It was holden that in this case C. and D. cannot disagree to that Remainder without matter of Record for they are Tenants in Common but if the Remainder had been limited to them in Fee so as they took joyntly it had been otherwise for then by the disagreement of the one the other shall take the whole Land. Mich. 32 Eliz. In the Kings Bench. CCCXXXIII Waite and Coopers Case IN Ejectione firmae between Waite and Cooper It was found by Verdict That Cranmer late Archbishop of Canterbury was seized of the Manor and Borough of Southwark in the right of his Bishoprick and that the Prior of Morton was seized of the House in which the Ejectment is supposed and held the same of the said Archbishop as of his said Manor and Borough after which 30 H. 8. the said Archbishop gave to the King the said Manor and Borough with confirmation of the Dean and Chapter and that the same year the said Prior surrendred by which the said King was seized as well of the said Manor and Borough as of the said House and afterwards the King by his Letters Patents gave the said House and other Lands in Middlesex and Essex to Curson and Pope in Fee tenend in Libero Burgagio per fidelitatem tantum non in Capite pro omnibus serviciis demandis And afterwards King Edw. 6. gave the said Manor and Borough to the Mayor and Commonalty of London Curson and Pope covey the said House to Welsh in Fee who dyed without Heir All the Question was What Tenure is here reserved upon the Words and Grant made by King Hen. 8. to Curson and Pope It was said It could not be a Tenure in Burgage because here is not any Rent reserved which see by Littleton 162 163 164. And the Lord Anderson at the first very strongly insisted upon that Another matter was because here is reserved for all the Lands and Tenements but one Tenure so that if the Court should adjudge the Tenure reserved to be Burgage then Lands at the Common Law out of Boroughs should be holden in Burgage Also a Tenure in Burgage cannot be created without these words ut de Burgagio And to that purpose Shute Iustice agreed Vide Br. Tenures 94. Mich. 29 Eliz. In the Kings Bench. CCCXXXIV Fullers Case NOte It is holden by the whole Court in Fullers case That if one give 300 l. to another to have an Annuity of 50 l. assured to him for 100 years if he his Wife and four of his Children so long shall live That this is not within the Statute of Vsury So if there had not been any Condition but care is to be taken that there be no Communication of borrowing of any Money before Trin. 30 Eliz. In the Kings Bench. CCCXXXV Goore and Winkfields Case 3 Leon. 223. DEbt upon an Obligation by Goore against Winkfield the Obligation was written in this Form Know all by these Presents That I H. Winkfield am bound to William Goore in the Sum of c. for the payment of which Sum I give full power and authority to the said Goore to keep the said Sum upon the Profits of the Bayliwick of Swinstall from year to year until the same be paid To which the Defendant pleaded That the Plaintiff had levied parcel of the said Sum c. and did not shew how much and therefore the pleading was holden not good And it was clearly agreed by the whole Court That the Plaintiff was at Liberty either to bring his Action upon the said Obligation or to levy the Debt according to the Clause aforesaid Pasc 26 Eliz. In the Kings Bench. CCCXXXVI Powley and Siers Case POwley brought Debt against Sier Executor of the Will of one A. The Defendant demanded Iudgment of the Writ For he said That one B. was Executor of the said A. and that the said B. constituted the said Defendant his Executor so as the Writ ought to have been brought against the Defendant as Executor of an Executor and not as immediate Executor of the said A. The Plaintiff replyed That the said B. before any probate of the Will or any Administration dyed and so maintained his Writ upon which the Defendant demurred Wray was for the Writ for although here be not any Probate of the Will of A. or any other Administration yet when B. makes his Will and the Defendant his Executor it is an acceptation in Law of the Administration and Execution of the first Will. Gawdy and Ayliff Iustices that the Writ was not good Vide 23 Eliz. Dyer 372. Mich. 19 Eliz. In the Kings Bench. CCCXXXVII Taylors Case TAylor was Outlawed in Debt where a Supersedeas upon Record was delivered to the Sheriff before the award of the Exigent It was holden that the Party should avoid the same by Plea Then it was moved If the Plea should be pleaded by Attorney or in Person To which it was said by the Iustices That where matter in fact is pleaded in avoiding of an Outlawry he ought to plead it in Person but matter of Record by Attorney And so Ford Prothonotary said it was agreed in the Case of Sir Thomas Chamberlain 7 Eliz. and so it ought to be in the principal Case here CCCXXXVIII Mich. 18 Eliz. In the Kings Bench. NOte It was agreed for Law in the Kings Bench if Lessee for years grant all his Estate and Interest to A rendring rent by Indenture and for default of payment a re-entry And the Grantor demandeth the rent and A. demands an Acquittance but the Lessee for years refuseth in such case A. may refuse to pay such rent for the rent is to be paid in this nature without an Acquittance but contrary if Lessee for years had leased parcel of his Estate rendring Rent with Clause of Re-entry c. CCCXXXIX Mich. 18 Eliz. In the Kings Bench. THe King seized of a Manor to which an Advowson is appendant a Stranger presented and his Clerk in by 6 Months It was holden that in such case the Grantee may present for the Advowson was always appendant and the Inheritance thereof passed to the Grantee for it was not made disappendant by the usurpation as in the case of a common person for the King cannot be put out of possession But the Patentee shall not have Quare Impedit
that that he was dispunishable at the common Law that was the folly of the Lessor and although it was so at the common Law yet it is otherwise at this day for when the Statute says That the Lessor shall recover damages for the Waste that the property of the Trees is in him As the Statute of Merton cap. 4. enacts That if the Lessor do approve part of the Waste having sufficient for the Commoners and they notwithstanding that bring an Assize they shall be barred in that Case and the Lord may have an Action of Trespass against them if they break the Hedges by force of that Statute as it hath been adjudged for the intent of the Statute was to settle the Inheritance of the Land approved without interruption of the Commoners and so in this case But note That by the Statute of Marlbridge the Lessor shall recover damages for the Houses c. which are wasted c. and yet a man cannot infer thereupon that therefore the Lessee hath no interest nor property in them and such interest hath he in the Trees notwithstanding the words of the Statute which is contrary to the meaning as it seems and therefore Quaere if there be any difference betwixt them and what shall be meant by this word Property But the damages are given by the Statute in respect of the property which the Lessor is to have in reversion after the Lease determined Anderson Chief Iustice The Lessor hath no greater property in the Trees than the Commoner hath in the Soil Walmsley 2 H. 7. 14. 10 H. 7. 2. The Lessor may give leave to the Lessee to cut the Trees and the same shall be a good Plea in an Action of Waste and the reason of both the Books is because the property of them is in the Lessor And to this purpose the difference is taken in 2 H. 7. betwixt Gravel and Trees 42 E. 3. If a Prior licence the Lessee to cut Trees the same shall discharge him in a Writ of Waste brought by the Successor but if the Lessee cutteth down the Trees and then the Prior doth release unto him the same shall not bar the Successor and so is 21 H. 6. And he cited Culpeppers Case 2 Eliz. and 44 E. 3. Statham and 40 Ass 22. to prove that the Lessor shall have the Windfalls If a Stranger cutteth down Trees and the Lessee bringeth an Action of Trespass he shall recover but only to his loss viz. for lopping and topping As to that which was said That if the Lessee cut down Trees that the Lessor cannot take them away that is true for that there is a contract of the Law that if the Leslee doth cut them down that he shall have the Trees and the Lessor have treble damages for them Also he said That the Trees are no part of the thing demised but are as Servants and shall be for Reparations As if one hath a Piscary in the Land of another man the Land adjoyning is as it were a Servant viz. to dry the Nets So if one hath Conduit Pipes lying in the Land of another he may dig the Land to mend the Pipes and yet he hath no Interest nor Freehold To that which was said That by the excepting of the Trees upon the Land the Land upon which they stood is excepted It is true as a Servant to the Trees for their nourishment but not otherwise For if the Lessor selleth the Trees he afterwards shall not meddle with the Land but it will be wholly in the Lessor quia â—uâ—â—ata causa tollitur effectus and if the Lessee tyeth a Horse upon the Land where the Trees stood the Lessor may distrain the same for his Rent and avow as upon Land within his distress and fee and holden of him And he said that the Lessor might grant the Trees but so cannot the Lessee and therefore he said that the property is in the Lessor and not in the Lessee and if the Lessor granteth them they pass without Attornment but contrary if the Lessor had but a Reversion in them and if the Lessor cutteth them down the Rent shall not be appâ—â—â—ioned and therefore they are no part of the thing demised For â— E. 7. Temps E. 1. Fitz. Waste in two or three places it is holden That if the Waste be done Sparsim in a Close or Ground the Lessor shall recover the whole then admit that the Trees are cut down If the Exception shall be good how shall the thing wasted be recovered and against whom quod nota Anderson Chief Iustice did conceive that the Exception was void and that the Action was well brought and he said It was a knavish and a foolish demise and if it should be good many mischiefs would follow which he would not remember Windham was of the same Opinion and he said That the Lessor might have accepted them and so take from the Lessee his Fire-boot Plough-boot c. which shall go with the Land. Periam Iustice agreed That as to such a special property none can have it but such a one who hath the Land and therefore the Exception of the Wood by the Lessee was void But as to the other things perhaps if they were Apple-trees or other Fruit-trees the Exception had been good Also although the Trees were not let directly yet they are after a sort by a mean annexed to the Land. And if the Action were brought against him who made the Exception he cannot plead that they were let unto him and therefore he doubted of the Exception Rhodes Iustice also said That he doubted of the Exception and he said That the Book of 44 E. 3. is that the Lessee should have the Windfalls and did not much regard the Opinion of Statham But Anderson was of Opinion that the Lessor should have the Windfalls Note The Case was not at this time adjudged but adjourned CCCLXIII Hil. 29 Eliz. In the Common Pleas. A Copyholder with licence of the Lord made a Lease for years and afterwards he surrendred the Reversion with the Rent to the use of a Stranger who was admitted accordingly It was moved If here there needed any Attornment either to settle the Reversion or to create a Privity It was the Opinion of Rhodes and Windham Iustices That the Surrender and Admittance ut supra are in the nature of an Attornment or at the least do supply the want of it Mich. 29 Eliz. In the Common Pleas. CCCLXIV Bell and Langleys Case IN Trespass the Case was thus That A. was Lord of a Manor of which B. held Black Acre by Copy of Court-Roll in Fee according to the Custom A. made a Feoffment of the said Black Acre to a Stranger B. dyed The point was If now the customary interest be determined against the Heir of B. For it was moved because that the Feoffee had not any Court the Heir of B. could not be admitted nor the death of his Ancestor presented because but one Copyholder
and before the 13 Weeks past the Lessor dyed and the Plaintiff his Executor brought Debt for the Rent It was adjudged by Cook and the other Iustices That the Action did not lye forthe Rent For the Rent being to be paid at Mich. or within 13 Weeks after the Lessee hath Election to pay it at any of the days and before the last day it is not due and when the Lessor dyeth before that day his Executors have not any right to the Rent but after the death of the Lessor having but an Estate for life the Rent is gone But if the Lessor had had a Fee-simple in the Land and had dyed before the last day the Heir should have had the Rent as incident to the Reversion But if the Lessor had survived both days the Rent had been a thing vested in him and his Executors should have had it but if the Rent had been reserved at Mich. and if it be behind by 13 Weeks that then it should be lawful for the Lessor to enter if the Lessor survive Mich his Executors shall have Debt for the Rent for then the Rent is due and the 13 Weeks are but a Dispensation of the Entry of the Lessor until that time And in this case as well as where the Rent is reserved at two days in the disjunctive it is sufficient that the Rent be demanded at the latter day without demanding of it at the first day Mich. 10 Jac. In the Common Pleas. CCCCIV Sir Baptist Hix and Fleetwood and Gotts Case Roll. tit Condition THe Case was Fleetwood and Gotts bargained and sold Weston Park being 300 Acres of Land to Sir Baptist Hix for 11 l. for every Acre which did amount to 25 30 l. and in the premises of the Indenture of Bargain and Sale it was agreed by the parties That the said Park being Wood-Land should be measured by a Pole of 18 Foot and a half And further it was covenanted That Fleetwood and Gotts should appoint one Surveyor and Hix another who should measure the said Park and if it by the measure should exceed the Number of Acres mentioned in the Indenture that then Hix should add to them according to the proportion of 11 l. for every Acre and if it wanted of the Measure then the said Fleetwood and Gotts should repay to Hix the Surplusage of that Mony according to the proportion of 11 l. the Acre And upon the Indenture Hix brought Covenant and Assigned a Breach because upon Measure it wanted 70 Acres and the Defendants did demur upon the Declaration because the Plaintiff had not therein shewed by what measure it was measured for they said by Shirley That although it was agreed in the first part of the Indenture that the measure should be by a Pole of 18 Foot and a half yet when they come to the Covenants there they do not speak of any Measure for which cause it shall be taken for such a Measure as the Statute speaks of scil a Measure of 16 Foot and a half the Pole and by such Measure there wants not any part of the Acres Dodderidge contr And he put this ground That if certainty once appeareth in a Deed and afterwards in the same Deed it is spoken indifferently Reference shall be unto the certainty which appeareth And therefore if by an Indenture Lands be given to a man Haeredibus masculis and afterwards in the same Deed it appears it is Haeredibus de Corpore suo It shall be an Estate-tail because the first words were indefinite and the last certain by which it appeared that he passed but an Estate in Tail And 4 E. 4. 9. b. the words of a Declaration was Noverint universi per praesentes nos J. S. teneri c. W. B. in 20 l. solvendum eidem J.S. It was holden by the Court the same did not make the Obligation void because it appeared by the first part of the Obligation that he should be bound to the Plaintiff and therefore the intent being so the Plaintiff might declare of a Solvendum to himself And the words J. S. should be Surplusage And 22 E. 3. 4. the Abbot of Selby granted quandam annuam pencionem 〈◊〉 ad rogatum J.E. illam scilicet quam idem J. E. habuit ad terminum vitae suae Et solvendam quousque sibi de beneficio Competo provisum fuerit It was holden by the Court in a Writ of Annuity brought That the word sibi should have reference to B. the Grantee and not to J. E. And Cook said That the original Contract did leave the Measure in this Case and for that he vouched Redwellys Case in Plowd Comment A Lease rendring Rent at Mich. at D. and if it be behind for a month after demand that the Lessor shall re-enter it shall be demanded at the first place Trin. 12 Jac. In the Star-Chamber CCCCV. Sir Richard Egertons Case IN this Case the Wife of Sir John Townsend being sentenced in 1000 l. and in Execution in the Fleet for the Costs of the Plaintiff these Points were resolved by the Court 1. If a man be Sentenced in the Star-Chamber to pay a Fine and to Imprisonment and the Delinquent renders his Body to Prison that notwithstanding the Body continues in Prison the King shall be satisfied the Fine out of the Profits of the Delinquents Lands 2. If a Feme Covert be sentenced there and she renders her Body to Prison and there abides That the Lands of her Husband shall be sequestred and the Profits thereof for the Fine of his Wife And that now upon the Statute of Recusancy the Lands of the Husband for the Recusancy of his Wife if he do not render her to Prison and discharge the same 3. If a man be Sentenced in the Star Chamber to pay a Fine and to have Imprisonment and he yield himself to Prison That before his Fine be also paid he shall not proceed in any Action at the Common Law against the Party in the same Suit. Pasc 12 Jac. In the Common Pleas. CCCCVI Crane and Parkins Case IN Trespass The Defendant pleaded that the Land in which was parcel of the Manor of Broughton Astley demisable by Custom and shewed That the Custom of the Manor was that if any Tenant for life dyed that the Lord for three years Fine ought to grant the same to his Heir and pleaded a Grant of the Manor to the Lord Grey of Grooby And also pleaded another Custom of the said Manor That if any Tenant for life of the said Manor had a Wife and dyed that the Wife shall have in the Land her Widows Estate And that after the death of the Wife that the Son for a Fine of three years paid to the Lord should have it for his life and that the Defendant claimed as Son according to that Custom The Plaintiff made Title as Lessee for years to the Lord Gray of the Manor and traverseth that there was not any such Custom
A TABLE OF THE Principal Matters Contained in this BOOK Abatement of a Writ IN Account the Writ abated for part and for part the Plaintiff had Judgment 39 In Action upon the Case and why 55 Account Of the King against a Stranger 32 Actio personalis moritur cum persona Trover is an Action personal for it is grounded upon a personal wrong and ariseth upon a disceit and wrong and if there was no Conversion then an Action of Detinue should lye 44 Where one takes my Horse and dyes I shall not charge his Executor 46 If a Smith pricks my Horse my Executors shall not have an Action for it ibid. Action upon the Case Assumpsit Where it is requisite for the party in an Action upon the Case to express the Assumpsit with the Request and where not 2 If one promise in consideration c. to assign to J. S. the Lease of a Stranger for this an Action will lye Adjudged 2 If A. Prisoner at the Suit of B. escapes and being at liberty promiseth to B. that if he will permit him to be at large c. that he will pay to him 10 l. for this no Action will lye Adj. 3 A Promise against a Promise will maintain an Action upon the Case ibid. By an Executor to a Creditor upon forbearance to pay his Debt makes him lyable to pay it of his own Goods Adj. 1. ibid. Will lye against the Executors of A. upon his Promise at full Age to save one harmless who was bound with him for his Debt when he was an Infant 5 Will not lye against an Executor if he promises to pay a Debt and hath not Assets ibid. Nor is an Heir subject to an Action upon such a promise if he hath nothing by Descent 6 An intire Assumpsit cannot be severed by Action ibid. To avoid Controversies and Suits is a good and sufficient Consideration to ground an Assumpsit upon 31 The Defendant exhibited a Bill to the Justices of Peace complaining that the Plaintiff is a disquieter of his Neighbours c. and served a Process upon J. S. on a Sunday and the Justices to whom it was exhibited awarded Process against the Plaintiff to find Suerties for his good Behaviour by virtue of which he was taken and imprisoned For this an Action of the Case will not lye 35 Action upon the Case for Words What words are actionable and what not 24 54 121 181 Action upon the Statute Upon 5 Eliz. of Apprentices holden clearly That if one hath been an Apprentice for seven years at any Trade mentioned within that Statute he may exercise any Trade named in the said Statute although he hath not been an Apprentice to it 9 Action upon the Statute of Hue and Cry. 18 Upon the Statute of 5 Eliz. of Perjury 25 Upon the Statute of 5 Eliz. of Usury 43 Upon the Statute of Hue and Cry 51 Upon the Statute of 23 Eliz. of Recusancy 54 Upon the Statute 4 Eliz. of Perjury 105 Upon the Statute of 1 Eliz. of Leases made by Bishops 61 Upon the Statute of Hue and Cry 85 Upon the Statute 5 E. 6. for buying of Woolls 103 Upon the Statute of 31 H. 8. of Partition 106 Upon the Statute of Hue and Cry 191 Alien Purchaser 82. suffers a Common Recovery 84 Amendment If a Writ of Error be brought and delivered to the Chief Justice of the Common Pleas and allowed by him under his hand the Record cannot afterwards be amended 50 Day given by the Court to amend the Count in Disceit 123 Of a Writ of Quare Impedit openly in Court by a Clerk of the Chancery 12 Amercement Of the Sheriff for making a Retorn contrary and repugnant in it self 57 Appeal If Robbery may be brought 20 years after the Robbery committed and the party robbed shall not be bound to bring it within a year and a day 16 If the Defendant be attainted by Verdict in an Appeal of Robbery the fresh Suit shall be inquired of but otherwise if he be attainted by Outlary 48 Assignment Of Debts to the King. 80 No Bonds shall be assigned to the Queen but such as are made for payment of Mony. 9 Attaint Where the King is sole party against the Subject and the Jury find for the King no Attaint lyeth 46 But where the Suit is tam pro Domino Rege quam pro seipso contrary ibid. Attornment What shall be a good Attornment what not 23 Surrender of a Copyhold Reversion with the Rent to the use of a Stranger and his admittance thereupon are in the nature and so amount to an Attornment 25 If A. seized of a Manor Lease the same for years rendring Rent with Clause of Re-entry and afterwards levy a Fine sur Cognizance de droit c. to the use of himself and his Heirs and the Rent being demanded is behind he cannot re-enter nor avow for the Rent but is without remedy for the same without Attornment 34 If A. seized of a Rent in fee grants the same by Fine to B. to the use of C. there needs no Attornment to the Conusee because all the right of the Rent is out of the Conusor and transferred to Cestuy que use instantly 50 Attornment doth not give a right but is only a consent 129 Bargain and Sale. IF the Bargainee levies a Fine and within six months the Deed be inrolled the Land shall pass by the Fine 4 Bayl. If a Scire Facias issue against them before a Capias issue against the Principal and they be taken they shall be put to their Writ of Error 36 Bills The King may exhibit one Bill in the Exchequer for several causes arising within several Counties and it shall be good 26 Carrier SEnt with a Letter by one to a Merchant for Merchandizes to send them to him receiving a sum of Mony the Merchant sent them by the Carrier without mony the Buyer shall not be charged for the mony the Bargain being conditional and it was the Merchants folly to trust the Carrier with those Wares 7 Chancery May compell a Tenant to Attorn 8. 184. Common and Commoner A Commoner cannot kill Conies which destroy his Common 7 In what Case Common appurtenant by Prescription sans number is improveable by the Lord of the Waste 41 Condition Broken by Lessee for years 5 Destroyed in part good in part 27 Divided ibid. Grantee of parcel of the Reversion is an Assignee within 32 H. 8. of Conditions 28 Apportioned ibid. Suspended ibid. Conditions by Act in Law divided not by Act of the Party ibid. Statute of 32 H. 8. of Conditions taken by Equity 29 Condition suspended in part is suspended in all ibid. Shall be taken favourable for him who is to perform it 70 Consultation Was granted because the Prohibition was general where it ought to have been special 16 Conversion In Trover is Traversable and therefore ought to be certainly alledged 45 Conveyance By the Heir upon Intrusion 60 Copyholder Baron Surrenders Femes
Copy-hold 88 Not within the Statute of Wills. 236 If a Copyholder in possession surrender the Reversion of his Land post mortem suam to the Lord to an use nothing is thereby passed 8 Tenant for Life of a Copyhold remainder in fee he in the remainder may surrender his Estate if there be no Custom to the contrary 9 In what Case a Copyholder ousted cannot make a Lease for years upon which the Lessee may maintain Ejectione firmae 30 If a Copyholder dyeth his Heir within age he is not bound to come to any Court during his Non-age to pray admittance or tender his Fine 31 If the death of his Ancestor be not presented nor proclamations made he is not at any mischief although he be at full age ibid. A Copyholder may surrender by Attorny 111 241 Costs The Plaintiff shall have Costs upon 5 Eliz. for hunting in his Park notwithstanding the Statute gives treble damages 36 If the Plaintiff be Non suited in an Action upon an Escape the Defendant shall not have Costs 182 Debt SHall not be brought against the Husband upon a Contract by the Wife 42 For Rent 18. For Rent-Corn reserved upon a Lease for years shall be brought in the Detinet 47 Upon a Concessit solvere according to the Law Merchant and Custom of the City of Bristol 105 Devise To a Colledge in Vacancy of a Head. 223 If one possessed of a Term deviseth that his Son shall have the same when he comes to the age of 18 years and that his Wife whom he makes Executrix shall enjoy it in the mean time and dye and the Wife take Husband she shall have the Term as Executrix till the Son accomplish the age of 18 years 1 Of Lands part to the eldest Son in Tail and part to the younger Son in Tail with this clause That if any of the Sons dyed without Issue the whole Land to remain to a Stranger in Fee the Sons entred respectively and the younger dyed without Issue the Stranger entred but his Entry was not lawful for the eldest Son shall have the Land by the implicative Devise 14 By a Father to his Son and Heir 35 200 237 Who shall first take by a Devise 37 Emblements WHere by Law they belong to the Executors 1 Entry If a Disseisor of 100 Acres le ts the same to divers for years the Entry in one Acre by the Disseisee is an Entry against them all 8 And if one makes a Lease for years rendring 10 l. for the first two years and afterwards 30 l. every year with Condition to Re-enter if the Rent of 30 l. or any part be behind the Lessor enters for Non-payment of the 10 l. his Entry is lawful for it was but one Rent of which the 10 l. was parcel ibid. Entry Congeable 39 Error He who is special Heir by the Custom as of Burrough English shall have the Writ of Error and not the Heir at Common Law. 5 Estate Executed 37 Estrepement In Partition ought not to be granted and why 60 Evidence Maybe good enough to maintain a Declaration though it vary from it 14 Execution An Infant once discharged out of Execution shall never be in Execution again 6 Execution of a Statute shall bind the King. 10 Where not good upon a Capias without a Scire Facias 24 If the Bail be taken in Execution before the Capias ad Satisfaciend against the Defendant be filed they may avoid this Execution by Error but not by Plea or Surmise 24 If the Plaintiff takes out Execution within a year and a day after Judgment obtained although he doth not prosecute it in two or three years yet when he pleaseth he may proceed upon it and shall not be put to a Scire Facias 44 Exposition of Words The words sub Conditione ea Intentione in a Feoffment be not a Condition but an Estate executed presently according to the intent 2 Domus est nomen collectivum and contains many Buildings as Barns Stables c. 16 Omnes Dimissiones being general words shall not be restrained to special Leases 17 The word growing though it sound in the Present Tense yet it shall be taken also in the Future Tense 36 So the word being but otherwise if the words had been tunc being 37 The word paying if it creates a Condition or not Quaere 50 Proviso semper put on the part of the Lessee upon the words of the Habendum makes a Condition but contrary of a Proviso on the part of the Lessor 71 The Provost Fellows and Scholars of Queens Colledge in Oxford as Guardians of the Hospital c. in S. make a Lease of Lands parcel of the Possession of the said Hospital by the name of Praepositus Socij Scholares Collegij Reginalis in Oxonia Gardianus Hospitalis c. and good without saying Gardiani in the Plural Number 85 Extinguishment If Lessee for 10 years grant a Rent-Charge to his Lessor for the same years and the Lessor grant the Remainder in Fee to the Lessee for years by this the Rent is extinguished 2 Felo de se IF the Queen grants to A. Catalla Felonum de se within such a Precinct where one indebted to the Queen having Goods is Felo de se the Queen shall have the Goods to satisfie her Debt 6 Feoffment To Uses 23 By one Coparcener cestuy que use of the whole is not only a Feoffment of that moiety she might lawfully dispose of but also of the other moiety by disseisin 52 Fines of Lands Where a Fine levied by the Husband of Lands whereof he and his Wife are Donees in Special Tail shall bar the Issue and where not 2 Fine by the Husband where avoids a Lease e contra 15 Fines levied to Uses 22 Issue of a Tenant in Tail the Remainder to the King shall be barred by a Fine 40 Fine for Alienation Not only the Land aliened but the other Lands of the Alienor shall be chargeable for the Fine for Alienation without Licence 47 Forfeiture If Lessee for years being sued for Rent claims Fee in the Land and hath none it is a Forfeiture 3 Of an Obligation with Condition That the Grantee of the next Avoidance of an Advowson should enjoy the same without any disturbance or claim of the Grantor 18 An Obligation to perform a Covenant that the Lessee of a Term shall enjoy it without expulsion or any Act done or to be done by the Lessor shall not be forfeited by Non-fesance 38 39 Of an Obligation conditioned to perform an Award 190 If Tenant for life joyn the Mise upon the meer Right it is a Forfeiture 128 Where Tenant for life is impleaded if he maketh default or confesseth the Action it is a Forfeiture ibid. If Tenant for life bargains and sells his Land by Deed inrolled although no Fee passeth yet it is a Forfeiture 129 contra 124 Grant. BY the King of the Office of the Kings Bench. 19 Recital in Grants of the King.