taile and waives the Lands taken in Exchange and before any other entry the heir of B. enters upon the Land which was given in Exchange and the opinion of the whole Court was That it was no breach of the Condition because that was not the Land of the Devifor at the time of the devise therefore it was out of the Condition Mich. 28 29. Eliz. In the Common Pleas. 116. PLYMPTON'S Case AN Action of Debt was brought by one Plympton and his wife Executors of one Dorrington upon a Bond with Condition to perform Covenants of an Indenture of Lease whereof one Covenant was That he should pay forty shillings yearly at the Feast of the Annunciation or within fourteen days after And the breach assigned was for not payment at such a Feast in such a year The Defendant said That hee paid it at the Feast upon which they were at issue And upon evidence given to the Jury it appeared That the same was not paid at the Feast but in eight dayes after it was paid And the opinion of the Court was That by his pleading that hee had paid it at such a day certain and tendring that for a speciall issue That hee had made the day part of the issue and then the Defendant ought to have proved the payment upon the very day But if the Defendant had pleaded That hee paid it within the fourteen dayes viz. the eighth day c. that had not made the day parcell of the issue but then hee might have given evidence that he paid it at another day within the fourteene dayes Then for the Defendant it was moved That the Plaintiffe had not well assigned the breach in saying that he had not paid it at the Feast without saying Nor within the fourteen dayes But the Court said That the Jury was sworn at the Barre and bid the Councell proceed and give in their evidence for the time to take exception was past Mich. 28 29. Eliz. in the Common Pleas. 117. IT was the opinion of Anderson Chiefe Justice and so entred by the Court That if a Copie-holder doth surrender to him who hath a Lease for years of the Mannor to the use of the same Lessee That the Copie-hold estate is extinct For the estate in the Copie-hold is not of right but an estate at will although that custome and prescription had fortified it And Wray said That it had been resolved by good opinion That if a Copie-holder accept a Lease for years of the Mannor that the Copie-hold estate is extinct for ever Mich. 28 29. Eliz. in the Common Pleas. 118. Anderson Chiefe Justice and Periam Justice being absent in a Commission upon the Queen of Scots Shuttleworth moved this case to the Court. If the Queen give Lands in taile to hold in Capite And afterwards granteth the Reversion how the Donee shall hold Windham Justice and Fenner Serjant The tenure in this case is not incident to the Reversion and the Donee shall hold of the Queen as in grosse and so two Tenures in Capite for one and the same Land And thereupon Windham Justice cited 30. H. 8. Dyer 45 46. That the Queen by no way can sever the tenure in chiefe from the Crown And therefore if the Queen do release to her Tenant in Capite to hold by a penny and not in Capite it is a void Release for the same is meerly incident to the Person and Crown of the Queen But Rodes Justice held the contrary viz. That the Tenure in Capite doth not remain But it was said by Windham That if the Queen had reserved a Rent upon the gift in tail the Grantee of the Reversion should have it Also he said That the Queen might have made the Tenure in such manner viz. to hold of the Mannor or of the Honor of D. Shuttleworth If Lands holden of the Mannor of D. come to the King may he give them to be holden of the Mannor of S that should be hard Windham I did not say That Lands holden of one Mannor may be given to be holden of another Mannor perhaps that may not bee but Lands which is parcell of any Mannor may be given Vt supra Mich. 28 29 Eliz. in the Common Pleas. 119 SErjeant Fenner moved Case If Lands be given to the Husband and Wife and to the heirs of their two bodies and the Husband dieth leaving Issue by his Wife and the Wife makes a Lease of the lands according to the Statute of 32. H. 8. If the Lease be good by the Statute Windham and Rodes Justices conceived that it is a good Lease Fenner The Statute saith that such Lease shall be good against the Lessor and his Heirs and the Issue doth not claim as Heir to the Wife onely but it ought to be Heir to them both and he cited the case That the Statute of R. 3. makes Feoffments good against no heirs but those which claim onely as Heirs to the same Feoffors c. So here Rodes Justice There the word only is a word efficacy And Windham agreed cleerly That the Lease should binde the issue by the said Statute of 32. H. 8. Mich. 28 29. Eliz. In the Common Pleas. 120 WAlmesley Serjeant moved this Case If a man deviseth Lands in taile with divers Remainders over upon condition that if any of them alien or c. that then he who is next heir to him to whom the land ought to come after his decease if the said alienation had not been made might enter and enjoy the land as if he had been dead But Ady of the Temple said That the words of the Devise are viz. That if any of them alien or c. that then his estate to cease and hee in the next Remainder to enter and retain the land untill the aliener were dead Rodes Justice The Devise is good and an estate may cease in such manner so as it shall not be determined for ever but that his Heir after him shall have it And he put the case of Scholastica Plow Com. 408. where Weston fo 4. 14. was in some doubt that if the Tenant in talle had had Issue if the Issue should be excluded from the land or whether hee should have the land by the intent of the Devisor And therefore if it were necessary to shew that the Tenant in taile had not Tssue But Dyer said that the words of the Will were that such person and his Heirs who alien or c. should be excluded presently so as the estate by expresse words is to be determined for ever But it is otherwise in this Case Windham doubted of the Devise Fenner cited the Case 22. E. 3. 19. Where a Rent was granted and that it should ceâse during the Nonage of the Heir of the Grantee and it was good Windham When a thing is newly created he who creates it may limit it in such manner as he pleaseth Fenner 30. E. 3. 7. Det. 10. A Feoffment was made rendring Rent upon
thing and shall he be bound by a Conveyance Anno. 16. H. 6. then in the time of Civil War Uses began and of Lands in use the Lord Chief Baron Tanfield in his Argument hath cited diverse cases where the lands in use were subject and lyable to the debt of Cestuy que use in the Kings Case and so was it untill the Statute of 27. H. 8. of Uses was made Babbington an Officer in the Exchequer had lands in the hands of Feoffees upon Trust and a Writ issued out and the lands were extended for the Debt of Babbington in the hands of his Feoffees Sir Robert Dudley having lands in other mens hands upon Trusts the lands were seized into the Kings hands for a contempt and not for debt or damages to the King And in this Case although that the ânquisition do find the Conveyance but have not found it to be with power of Revocation yet the Land being extended it is well extended untill the contrary doth appear and untill the extent be avoided by matter of Record viz. by Plea as the Lord Chief Baron hath said before Ley Chief Justice of the Kings Bench argued the same day and his Argument in effect did agree with the other Justices in all things and therefore I have forborne to report the same at length And it was adjudged That the Extent was good and the Land well decreed accordingly Pasch 21 Jacobi in the Exchequer Chamber 417. The Lord SHEFFIELD and RATCLIFF'S Case IN a Writ of Error brought to reverse a Judgment given in a Monstrans de Droit in the Court of Pleas The Case was put by Glanvile who argued for Ratcliffe the Defendant to be this 2 E. 2. Malew being seised of the Mannor of Mulgrave in Fee gave the same to A. Bigot in tail which by divers discents came to Sir Ralph Bigot in tail Who 10 Jannarii 6 H. 8. made a Feoffment unto the use of âis last Will and thereby after his Debts paid declared the use unto his right heirs in Fee and 9. H. 8. dyed The Will was performed Francis Bigot entred being Tenant in tail and 21 H. 8. made a Feoffment unto the use of himself and Katherine his wife and to the use of the heirs of their two bodies Then came the Statute of 26 H. 8. cap. 13. by which Tenant in tail for Treason is to forfeit the Land which he hath in tail Then the Statute of 27 H. 8. of Uses is made Then 28 H. 8. Francis Bigot did commit Treason And 29 H. 8. he was attainted and executed for the same Anno 31 H. 8. a private Act of Parliament was made which did confirm the Attaindor of Francis Bigot and that he should forfeit unto the King word for word as the Statute of 26 H. 8. is saving to all strangers except the Offendor and his heirs c. 3 E. 6. The heir of Francis Bigot is restored in blood Katherine entred into the Mannor and dyed seised 8 Eliz. their Issue entred and married with Francis Ratcliffe and had Issue Roger Ratcliffe who is heri in tail unto Ralph Bigot And they continue possession untill 33. Eliz. And then all is found by Office and the Land seised upon for the Queen who granted the same unto the Lord Sheffield Francis Bigot and Dorothy die And Roger Ratcliffe sued a Monstrans de Droit to remove the Kings hands from off the lands and a Scire facias issued forth against the Lord Sheffield as one of the Terre-Tenants who pleaded all this special matter and Judgment was thereupon given in the Court of Pleas for Roger Ratcliffe And then the Lord Sheffield brought a Writ of Error in the Exchequer-Chamber to reverse the said Judgment And Finch Serjeant argued for the Lord Sheffield that the Judgment ought to be reversed And now this Term Glanvile argued for Roger Ratcliffe that the Judgment given in the Court of Pleas ought to be affirmed There are two points The first If there were a Right remaining in Francis Bigot and if the same were given unto the King by the Attaindor and the Statute of 31 H. 8. Second If a Monstrans de Droit be a proper Action upon this matter which depends upon a Remitter for if it be a Remitter then is the Action a proper Action The Feoffment by Ralph Bigot 6 H. 8. was a Discontinuance and he had a new use in himself to the use of his Will and then to the use of his Heirs Then 9 H. 8. Ralph Bigot dyed And then Francis Bigot had a right to bring a Formedon in the Discendor to recover his estate tail 21 H 8. then the point ariseth Francis Bigot having a right of Formedon and an use by force of the Statute of 1 R. 3. cap. 1. before the Statute of 27 H. 8. by the Feoffment he had so setled it that he could not commit a forfeiture of the estate tail When a man maketh a Feoffment every Right Action c. is given away in the Livery and Seisin because every one who giveth Livery giveth all Circumstances which belongs to it For a Livery is of that force that it excludes the Feoffor not only of all present Rights but of all future Rights and Tytles v. C. 1. par 111. and there good Cases put to this purpose 9 H. 7. 1. By Livery the Husband who was in hope to be Tenant by Courtesie is as if he were never sised 39 H. 6. 43. The Son disseiseth his Father and makes a Feoffment of the lands the Father dyeth the hope of the heir is given away by the Livery It was objected by Serjeant Finch 1. Where a man hath a right of action to recover land in Fee or an estate for life which may be conveyed to another there a Livery doth give away such a Right and shall there bind him But an estate in tail cannot be transferred to another by any manner of Conveyance and therefore cannot be bound by such a Livery given I answer It is no good Rule That that which doth not passe by Livery doth remain in the person which giveth the Livery 19 H. 6. Tenant in tail is attainted Office is found The estate tail is not in the King is not in the person attainted but is in abeyance So it is no good Rule which hath been put When Tenant in tail maketh a Feoffment Non habet jus in re neque ad rem If he have a Right then it is a Right of Entre or Action but he cannot enter nor have any action against his own Feoffment 19 H. 8. 7. Dyer If Discontinuee of Tenant in tail levieth a Fine with proclamations and the five years passe and afterward Tenant in tail dyeth his issue shall have other five years and shall be helped by the Statute for he is the first to whom the right doth accrue after the Fine levied for Tenant in tail himself after his Fine with Proclamations hath not any right But if Tenant in tail be
then the Court is to abate the Petition but after Judgment to find such a fault he must have a Scire facias and not a new Petition and in our Case there was none who gave in such matter for the King Now I come to the Statute of 31. H. 8. The particular Act for the Attainder of Francis Bigot and that he should forfeit all such Lands c. Conditions Rights c. in Fee and Fee tail saving c. and as the lands of Francis Bigott stood stated at the time of the making of this Act of 3. H. 8. the Statute did not extend to him to make him forfeit any thing In the Statute of 33. H. 8. Cap. 20. there were as many words as in this Statute of 31. H. 8. and many Cases upon the Statute of 33. H. 8. are adjudged upon the words shall lose and forfeit There is a difference betwixt an Act of Assurance and an Act of Forfeiture If the words be That the King shall enjoy and have it is then an Act of Assurance and the lands are given to the King without Office but by an Act of Forfeiture the Lands are not in the King without Office found Exceptio firmat regulam but our Case is out of the Rule Savings in Acts of Parliaments were but of late days 1. E. 4. there was a private Act A Petition was preferred against divers in Parliament for sundry misdemeanours and it was Enacted that they should forfeit unto the King and his heirs c. in that Act there was no exception of saving for it was but a forfeiture of their Rights and Savings were but of late times Trin. 8. H. 8. Rot. 4. A Petition of Right in the Chancery upon that was a plea which was after the Attainder of the Duke of Suffolk That the Duke did disseise him it was shewed that the Attainder was by Parliament and he shewed no saving to be in the Statute in the Petition and yet it was well enough Com. 552. Wyat Tenant in tail of the Gift of the King made a Feoffment and by Act of Parliament 2 Mariae was attainted of Treason by which he was to forfeit c. as in our Case I answer That within two years after that Judgment upon solemn argument it was adjudged contrarie Com. 562. It was objected that in that Case a Writ of Error was brought Com. 562. and that the Judgement was affirmed in the Case of Walsingham I answer that the same was by reason of the Plea in Barr And Com 565. there Plowden confesseth that the Judges were not agreed of the matter in Law and the Lands in question in Walsingams Case do remain with Moulton and at this day are enjoy'd contrary to the Judgment given in Walsinghams Case It was objected That although this Act of 31. H. 8. was made after the Attainder yet that it should relate to all the Lands which Francis Bigot had at the time of the Treason committed I answer That this Act of 31. H. 8 is but a description what Lands he shall forfeit viz. all the Lands which he had at the time of the Treason committed The second Point is upon the Remitter of Roger Ratcliff before the Inquisition for there was a discent to Roger Ratcliff When Tenant in Tail is attainted of Treason his blood is not corrupted C. 9. part 10. Lumleys Case And the Statute of 33. H. 8. is the first Statute which vests Lands forfeit for Treason in the King without Office found So as according to the Lord Lumley's Case C. 3. part 10. before this Statute of 33 H. 8. the Land did discend to the issue in tail The Rule of Nullum tempus occurrit Regi is to be meant for the preserving of the Kings Right but not to make the King to do wrong Com. 488. there the Remitter is preferred before the King 49. E. 3. 16. there the Devise of a Common person was preferred before the Right of the King 3. H. 7. 2. the Lord Greistock's Case The Dean of York did recover against him and before Execution the Lord died his heir within age the Dean shall have his Execution notwithstanding that the King hath right to have the Ward A fortiori a Remitter shall be preferred before the Kings Title C. 7. part 28. The Rule Nullum tempus occurrit Regi is to be intended when the King hath an Estate or Interest certain and permanent and not when his Interest is specially limited when and how he shall take it and not otherwise The third Point was Whether Ratcliff hath brought his proper Action The words of the Act of 2 E. 6. cap. 8. which giveth the Monstrans de Droit are to be considered A Remitter is within the words of the Act. Divers Errors were assigned by the other side for matter of Form 1. Because the Venire facias want these words tam milites quam alios Sheffield being a Noble man and a Peer of the Realm It appeareth by the Register 7. that the same was the ancient Form in every common persons Case but of late that Form was left 2. Admit that it were a good Exception then it ought to have been taken by way of Challenge as it appeareth 13. E. 3. Challenge 115. Dyer 107. 208. 3. The Statute of 35. H. 8. Cap. 6. makes a new Law and prescribes a Form Precipimus c. quod Venire facias coram c. 12 Liberos Legales homines c. and then if it ought to be by the Register tam milites quam alios yet here is a new Statute against it And by the Statute of 2. E. 6. Cap. 32. this Statute of 35 H. 8. is made perpetual And by the Statute of 27. Eliz. Cap. 6. the Statute of 35. H. 8. is altered in parvo and augmented in the worth of the Jurors and by the Statute of 18. Eliz. Cap. 14. It is Enacted That after Verdict c. the Judgment thereupon shall not be stayed or reversed by reason of any default in Form or lack of Form or variance from the Register The second Error assigned was because that there are two Venire facias and two Distringas after that Issue was joyned The Lord Sheffield sueth unto the King to have the first Venire facias and first Distringas quashed and it was quashed with Ratcliff's consent Secondly admit there were two Venire facias yet it ought to be intended that the proceedings was but upon one of them and that the best M. 17. Jacobi in the Common Pleas Bowen and Jones's Case In Error upon a Recovery in Debt there were two Originals certified and there the one was good and the other naught the Judges did take it that the Judgment and proceedings were upon the good Original and the Judgment was affirmed in the Kings Bench M. 15 H. 8. Rott 20. the same Case Two Originals one bearing date after the Judgment the other before the Judgment and upon a Writ of Error brought the
Judgement was affirmed for by intendment the Judgment was given upon the first Original which bore date before the Iudgment Another Error was assigned because the Plea was That such a one was seised of the Castle and Mannor of Mulgrave predictis in the plural number I answer that there is not any colour for that Error for the word predictis doth shew that the Mannor and Castle are not one and the same thing So upon the whole matter I pray that the Iudgment given in the Court of Pleas may be affirmed Sir Henry Yelverton argued for the Lord Sheffield that the Iudgment might be reversed There are three things considerable in the Case First If any right of the ancient estate tail was in Francis Bigot who was attainted at the time of his Attainder Secondly admit that there was an ancient right if it might be forfeited being a right coupled with a Possession and not a right in gross Thirdly Whether such a Possession discend to Francis Bigot that he shall be remitted and if this Remitter be not overreached by the Office First If by the Feoffment of Francis Bigot 21. H. 8. when he was Cestuy que use and by the Livery the right of the ancient entail be destroyed And I conceive it is not but that the same continues and is not gone by the Livery and Seisin made There is a difference when Cestuy que use makes a Feoffment before the Statute of 1 R 3. and when Cestuy que use makes a Feoffment after the said statute of 1 R 3 For before the statute hee gives away all Com 352. but after the statute of R. 3. Cestuy que use by his Feoffment gives away no Right In 3 H. 7 13. is our very case almost For there the Tenant in Tail made a Feoffment unto the use of his Will so in our Case and thereby did declare that it should be for the payment of his debts and afterwards to the use of himself and the heirs of his body and died the heir entred before the debts paid but in our Case he entred after the debts paid there it is said that the Feoffment is made as by Cestuy que use at the Common Law for his entrie was not lawfull before the debts paid But when Francis Bigot made a Feoffment 21 H. 8. he was Cestuy que use in Fee and then is the Right of the Estate tail saved by the Statute of 1. R. 3. And by the Statute of 1. R. 3. he gives the Land as Servant and not as Owner of the Land and so gives nothing but a possession and no Right 5 H. 7. 5. Cestuy que use since the Statute of 1 R. 3. is but as a Servant or as an Executor to make a Feoffment And if an Executor maketh a Feoffment by force of the Will of the Testator he passeth nothing of his own Right but only as an Executor or Servant 9 H. 7. 26. proves that Cestuy que use since the Statute of 1 R. 3 hath but only an Authority to make a Feoffment For Cestuy que use cannot make a Letter of Attorney to make Livery for him for he hath but a bare Authority which cannot be transferred to another Cestuy que use hath a Rent out of Land and by force of the Statute of 1 R. 3. he maketh a Feoffment of the Land yet the Rent doth remain to him for he giveth but a bare possession So in our Case the right of the Estate Tail doth remain in Francis Bigot notwithstanding his Feoffment as Cestuy que use by the Statute of 1 R. 3. If Cestuy que use by force of the Statute of 1 R. 3. maketh a Feoffment without Warranty the Vouchee shall not Vouch by force of that Warranty For as Fitzherbert saith Cestuy que use had no possession before the Statute of 27. H. 8. Cap. 10. 27 H. 8. 23. If Feoffees to Use make a Letter of Attorney to Cestuy que use to make a Feoffment he giveth nothing but as a Servant The Consequent of this Point is That the right of the old Estate Tail was in Francis Bigot at the time of his Attainder and was not gone by the Feoffment made 21 H. 8. The second Point is Whether a right mixt with a possession of Francis Bigot might be forfeited by the Statutes of 26. H. 8. and the private Act of 31. H. 8. The Statute of 31. H. 8. doth not save this Right no more then the Statute of 26. H. 8. For they are all one in words I say that he hath such a right as may be lost and forfeited by the words of the Statute of 26. H. 8. Cap. 13. For that Statute giveth three things First It gives the Forfeiture of Lands and not of Estates Secondly How long doth that Statute give the lands to the King For ever viz. to the King his Heirs and Successors Thirdly It gives the lands of any Estate of Inheritance in Use or Possession by any Right Title or means This Estate Tail is an Estate of Inheritance which he hath by the Right by the Title and by the means of coming to the Right it is forfeited These two Statutes were made for the punishment of the Child For the Common Law was strict enough against the Father viz. he who committed the Treason And shall the same Law which was made to punish the Child be undermined to help the Child The ancient Right shall be displaced from the Land rather then it shall be taken from the Crown which is to remain to the Crown for ever And this Statute of 26 H. 8. was made pro bonoâ publico and it was the best Law that ever was to preserve the King and his Successors from Treason for it is as it were a hedg about the King For before this Statute Tenant in Tail had no regard to commit Treason For he forfeited his Lands but during his own life and then the Lands went to the issue in Tail But this Statute doth punish the Child for the Fathers offence and so maketh men more careful not to offend least their posterity may beg I take two grounds which are frequent in our Law First That the King is favoured in the Exposition of any Statute Com. 239 240. The second That upon the construction of any Statute nothing shall be taken by equity against the King Com. 233 234. Here in this Case although the Right were not in possession yet it was mixed with the possession from Anno 13. E. 1. untill 26. H. 8. Tenant in Tail feared not to commit Treason For the Statute of West 2. did preserve the Estate Tail so as the Father could not prejudice his issue per factum suum And therefore the Commonwealth considering that a wicked man did not care what became of himself so as his issue might be safe provided this Statute of 26. H. 8. Cap. 13. although the Statute of 16. R. 2. Cap. 5. which giveth the Premunire doth Enact that all Lands and
Tenements of one attainted in a Premunire shall be forfeited to the King Yet Tenant in Tail in such Case did not forfeit his Lands C. 11. part 63. b. as the Statute of West 2. Cap. 1. saith in particular words That Tenant in Tail shall not prejudice his issue Therefore the Statute of 26. H. 8. in particular words saith That Tenant in Tail shall forfeit his Lands for Treason The Right of Francis Bigot is not a right in gross but a Right mixed with a possession The Statute of West 2. Cap. 1. brought with it many mischiefs For by that Statute the Ancestor being Tenant in Tail could not redeem himself out of prison nor help his wife nor his younger children and that mischief continued untill 12. E. 4. Taltaram's Case and then the Judges found a means to avoid those mischiefs by a common Recovery and this Invention of a common Recovery was a great help to the Subject Then came the Statute of 32. H. 8. Cap. 36. which Enacted That Fines levied by Tenant in Tail should be a good barr to the issue of any Estate any way entailed If the Son issue in tail levieth a Fine in the life of his Father who is Tenant in tail it shall be a barr to him who levieth the Fine and to his issues And both these viz. the Common Recovery and the said Statute did help the Purchaser And shall not this Statute of 26. H. 8. help the King The Statute of 26. H. 8. Cap. 13. hath not any strength against the Ancestor but against the Child For the Construction of Statutes I take three Rules First When a Case hapneth which is not within the Letter then it is within the intent and equity of the Statute Com. 366. 464. Secondly All things which may be taken within the mischief of the Statute shall be taken within the Equity of the Statute 4. H. 6. 26. per Martin Thirdly When any thing is provided for by a Statute every thing within the same mischief is within the same Statute 14. H. 7. 13. The Estate tail of Francisâ Bigot and Katharine his wife is forfeited by the Statute of 26 H. 8. There is a difference when the Statute doth fix the forfeiture upon the person As where it is enacted that J. S. shall forfeit his lands which he had at the time of his Attaindor The Judges ought expound that Statute only to J. S. But the Statute of 26 H. 8. doth not fix the forfeiture upon the person but upon the land it self And Exposition of Statutes ought to extend to all the mischiefs 8 Eliz. Sir Ralph Sadler's Case in B. R. where an Act of Parliament did enact That all the lands of Sadler should be forfeited to the King of whomsoever they were holden Sadler held some lands of the King in that case the King had that land by Escheat by the Common-Law and not by the said Statute Com. 563 The Law shall say that all the rights of the tail are joyned together to strengthen the estate of the King Tenant in tail before the Statute of 1 E. 6. cap. 14. of Chauntries gave lands to superstitious uses which were enjoyed five years before the said Statute of 1 E. 6. made Yet it was adjudged that the right of the issue was not saved but that the land was given to the Crown for the issue is excluded by the saving in the said Statute If Tenant in tail give the lands to charitable uses the issue is barred For the saving of the Statute of 39 Eliz. cap. 5. excludes him And he is bound by the Statute of Donis So the Statute of 26 H. 8. cap. 13. and the private Act of 31 H. 8. do save to all but the heirs of the Offenders The third Objection was That Ratcliffe was not excluded by the saving for it was said That the same doth not extend but to that which is forfeited by his Ancestors body And here Ratcliffe had but a Right and that was saved And the Statute doth not give Rights I answer first The Statute of 26 H. 8. is not to be expounded by the letter for then nothing should be forfeited but that only which he had in possession and use Tenant in tail is disseised and attainted for treason By the words of the said Statute of 26 H. 8. he forfeits nothing yet the issue in tail shall forfeit the lands for the issue in tail hath a right of Entrie which may be forfeited 6 H. 7. 9. A right of Entrie may escheat and then it may be forfeited Secondly The Statute is not to be construed to the possession but if he hath a mixt right with the possession it is forfeited but a right in grosse is not forfeited Tenant in tail of a Rent or Seignorie purchaseth the Tenancie or the Land out of which the Rent is issuing and is attainted He shall forfeit the Seignorie and Rent or the Land for the King shall have the Land for ever And then the Seignorie or Rent shall be discharged for otherwise the King should not have the Land for ever For the King cannot hold of any Lord a Seignorie 11 H. 7. 12. The heir of Tenant in tail shall be in Ward for a Meanaltie descended unto him the Meanaltie not being in esse and yet it shall be said to be in esse because of the King C. 3 part 30. Cars Case Although the Rent was extinguished yet as to the King it shall be in esse The difference is betwixt a Right clothed with a possession and a right in grosse viz. where the Right is severed from the possession there it is in grosse For there the Right lieth only in Action and therefore neither by the Statute of 26 H. 8. nor by the private Act of 31 H. 8. such a Right is not forfeited C. 3. part 2. C. 10. part 47 48. Right of Action by the Common-Law nor by Statute-Law shall escheat and therefore it is not forfeited For no Right of Action is forfeitable because the right is in one and the possession in another Perkins 19. A Right per se cannot be charged 27 H. 8. 20. by Mountague A man cannot give a Right by a Fine unless it be to him who hath the possession C. 10. part Lampits Case Sever the possibility from the right and it doth not lie in grant or forfeiture but unite them as they are in our Case and then the Right may be granted or forfeited for that Right clothed with a possession may be forfeited A Right clothed with the possession 1. It tastes of the possession 2. It waits upon the possession 3. It changes the possession The Bishop of Durham hath all Forfeitures for Treason by the Common-Law within his Diocess viz. the Bishoprick of Durham And if Tenant in tail within the Bishoprick commits Treason and dyeth the Issue in tail shall enjoy the land against the Bishop Dyer 289 a. pl. 57. For the Bishop hath not the land for ever but the Issue
in tail may have a Formedon against the Bishop But in our Case it is otherwise Tenant in tail maketh a Feoffment and takes back an estate unto himself in tail the remainder in Fee to his right heirs The Bishop in such case shall not have the land forfeited for Treason because that the Bishop cannot have the estate tail but in such case the King shall have the Land by the Statute of 26 H. 8. cap. 13. And the Bishop in such case shall not have the Fee because it is one estate and the King shall not wait upon the Subject viz the Bishop The Right waits upon the possession For 11 H. 7. 12. If the son and a stranger disseiseth the father and the father dyeth this right infuseth it self into the possession and changeth the possession And it is a Release in fact by the father to the son 9 H. 7. 25. Br ' Droit 57. A Disseisor dyeth seised and his heir enters and is disseised by A. The first Disseisee doth release unto A. all his right All the right is now in the second Disseisor viz. A. because the right and the possession meet together in A. 40 E. 3. 18. b. Tenant in tail makes a Lease for life with warranty If Tenant for life be impleaded by the heir to whom the warranty doth discend he shall rebut the right in tail being annexed with the possession for that is in case of a saving of the land by that right But where one demands land there all the Right ought to be shewed 11 H. 4 37. If a man be to bring an Action to recover then he ought to make a good title by his best right if he hath many rights But if a man be in possession and an Action be brought against him then he may defend himself by any of his rights or by all his rights 11 H. 7. 21. Tenant in tail maketh a Feoffment to his use upon Condition and afterwards upon his Recognisance the land is extended and afterwards the Condition is performed yet the interest of the Conusee shall not be avoided For although the Extent come upon the Fee and not upon the Tail yet when the Extent was it was extracted out of all the rights C. 7. part 41. A Tenant in tail makes a Lease for life now he hath gained a new Fee by wrong and afterwards he makes a Lease for years and Tenant for life dyeth He shall not avoid his Lease for years although he be in of another estate because he had a defeicible title and an ancient right the which if they were in several hands shall be good as the Lease of the one and the Confirmation of the other And being in one hand it shall be as much in Law as a saving of the Right In our Case the Right and Possession both were in Francis Bigot And Ratcliffe is entitled to the old estate tail and to the new also There is a difference betwixt him who claims the land so forfeited to the King and the heir of the body of the person attainted Littâ719 Land is given to A and the issue males of his body the remainder to the heirs females of his body If the Father commit Treason both heir male and female are barred for they both claim by the Father but if the heir male after the death of his Father be attainted of Treason the King shall have the lands as long as he hath issue male of his body and then the heir female shall have the lands for she shall not forfeit them because she claimeth not by the brother but by the father Com. in Manxels case A man hath three several rights of estate tails and comes in as Vouchee If the Recovery pass it shall bar all his Rights for one Recompence and they shall be all bound by one possession There is a difference where the Kings title is by Conveyance of the party and where for forfeiture for Treason by this Statute of 26 H. 8. cap. 13. v. the Abbot of Colchesters Case The Abbot seised in the right of his house did commit Treason and made a Lease for years and then surrendred his house to the King after the Statute of 26 H. 8. The question was whether the King should avoid the Lease It was adjudged That the King was in by the surrender and should not avoid the Lease and not by the Statute of 26 H. 8. But if the King had had it by force of the Statute then the King should have avoided the Lease Com. 560. Tenant in tail the reversion to the King Tenant in tail maketh a Lease for years and is attainted of Treason The King shall avoid the Lease upon the construction of the Statute of 26 H. 8. which gives the lands unto the King for ever The third point is upon the Remitter This point had been argued by way of Admittance For as I have argued The ancient right is given away unto the King and then there is no ancient right and so no Remitter There is a difference where the issue in tail is forced to make a Title and where not In point of defence he is not so precisely forced to make his Title as he is in case of demand Whereas the Defendant demands the lands from the King the Discent will not help him because the Attaindor of the Ancestor of Ratcliffe hinders him in point of title to make a demand Dyer 332 b. In this case he ought to make himself heir of the body of Francis Bigot and Katharine C. 8. part 72. C. 9. part 139 140. There Cook couples the Case of Fine levied and the Case of Attaindor together C. 8. part 72. Land is given to husband and wife and to the heirs of their two bodies The husband alone levies a Fine with proclamations Or is attainted of Treason and dyeth The wife before Entry dyeth The issue is barred and the Conusee or King hath right unto the land because the issue cannot claim as heir to them both viz. father and mother for by the father he is barred 5 H. 7. 32 33. C. 9. part 140. Husband and wife Tenants in tail If one of them be attainted of Treason as it was in our Case the lands shall not discend to the issue because he cannot make title And there Cook puts the Case That if lands be given to an Alien and his wife they have a good estate tail and yet it is not discendable to the issue The Consequence then of all this is That if Ratcliffe cannot take advantage of the discent by reason of the disability by Attaindor à fortiori he shall not be remitted And yet I confess that in some Cases one may be remitted against the King Com. 488 489 553. But that is where the King is in by matter of Law by Conveyance but in this Case the King is in by an Act of Parliament and there shall be no Remitter against a matter of Record Another reason is because that
E. 3 17 a. Persay Executors cannot make a Feoffment but they ought to make a Sale and the Vendee viz. the Bargainee is in without Livery and Seisin But if they do make a Feoffment by the Livery all their right is given away But if an Attorney giveth Livery in the name of his Master nothing of his own right to the same Land is given away by the Livery and Seisin but if he maketh Livery in his own name then he giveth away his own right and the Statute of 1 R. 3. cap. 1. maketh the Feoffment good which is made by Cestuy que use against him and his heirs C. 1. pt 111. By Livery and Seisin his whole right is given away Com. 352. The Feoffees of Cestuy que use are disseised the Disseisor enfeoffeth Cestuy que use who enfeoffs a stranger And the Question was If by this Feoffment made by Cestuy que use the right of the first Feoffees were determined and extinct Fitzherbert held that the right was gone and in that case the Uses were raised after 1 R. 3. and before 27 H. 8. cap. 10. Although Yelverton held that it was meant of a Feoffment before the Statute of 1 R. 3. Jus recuperandi was in Francis Bigot Then the question is Whether this Right were given away by the Statutes of 26 31 H. 8. The Statute of 26 H. 8. 31 H. 8. are several and distinct Statutes The words of the Statute of 26 H. 8. are That the party offending shall forfeit all his Possession and Vse but there is no word of Right in the Statute and that Statute doth not extend to give any land but that which was in possession or use And the cause was because before that Statute of 26 H. 8. Uses were not given unto the King for Attaindor for Treason they being but a Trust and Confidence C. 11. part 36 b. The Statute sayes By any wayes title or means But observe when this Statute was made It is a penal Statute and therefore shall be taken strictly Stamford 129 b. C. 11. part 36 b. The Statute of 5 6 E. 6. takes away Clergy but if a stranger be in the house by licence of the Owner the party shall have his Clergy because out of the words and being a penal Law it shall be taken strictly The Statute of 33 H. 8. cap. 20. forfeits for Treason Right to the Land viz. right of Entry but the Statute of 26 H 8. giveth not any Right Before the Statute of 33 H. 8. a right of Entry was not given to the King for Treason à fortiori a right of Action was not forfeited to the King It is the Statute of 31 H. 8. the private Act which hurteth us which expresly gave Rights But this Right in our Case is not forfeited by this Statute which giveth Rights which a man hath But in our Case Francis Bigot had not the Right but the Right was in abeyance Statutes in points of Forfeiture forfeit no more then a man hath But yet a Statute may give to the King that which a man hath not C. 11. part 13. The statute of Monasteries gave that to the King which was not viz. Monasteries in reputation saving to none but strangers no not to the Donors Hussies Case Tenant in tail doth bargain and sell to the King and a statute gave it to the King saving to strangers but neither the Donor nor his issue were within the saving Old Entries 423. b c d. It was enacted That the Duke of Suffolk should forfeit for Treason all his Lands Rights and Tenements and all such Rights and Titles of Entry which he had But thereby rights of Action were not given to the King but only rights of Entries The statutes of 31 33 H. 8. are alike in words If Tenant in tail the Remainder over forfeit c. the Remainder is saved without words of saving But if the statute giveth the land by name unto the King then the Remainder is not saved but is destroyed If a Right of Action be given unto the King the statutes of Limitation and Fines are destroyed for he is not bound by them C. 485 486. in point of forfeiture Stamf. 187 188. There is a difference betwixt real and personal Rights given to the King C. 3. part 3. A right of Action concerning Inheritances are not forfeited by Attaindor c. But Obligations Statutes c. are forfeited by Attaindor C. 7. part 9. A right of Action is not given to the King by general words of an Act because it lieth in privity And it would be a vexation to the subject if they should be given C. 4. pt 124. Although that a Non compos mentis cannot commit Felony yet he may commit Treason for the King is Caput salus reipublicae If Non compos mentis maketh a Feoffment and then committeth Treason the King shall not have an Action to recover the Land of the Non compos mentis as the party himself may have But if Non compos mentis be disseised and then be attainted of Treason then the King may enter into the Lands because the party himself had a right of Entry which is given to the King It was objected That a right of Action clothed with a possession might be given to the King Tenant in tail discontinues and takes back an estate and is attainted of Treason This right of Action shall not be forfeited to the King for his right of Action was to the estate tail In our Case the right of Action was to Katherine for she was Tenant for life The Attaindor was 29 H 8. and the Act which forfeited the Right was made 31 H. 8. and then the right and possession were divided 30 H. 6. Grants 91. The King may grant the Temporalties of a Bishop before they happen to be void And so he may grant a Ward But the King cannot grant the Lands of J. S. when he shall be attainted of Treason for the Law doth not presume that J. S. will commit Treason The Devise of a Term the Remainder over is good But if the Devise be of a Term to one in tail the Remainder over the Remainder is void because the Law doth presume that an estate in tail may continue for ever C. 8. part 165 166. The Law did not presume that Digby at the time of the Conveyance intended to commit Treason It was objected That whatsoever may be granted may be forfeited I deny that C. 3. part 10. by Lumley's Case If the issue in tail in the life of his Father be attainted of high Treason and dyeth it is no forfeiture of the estate tail But if the issue in tail levieth a Fine in the life of his Father it is a bar to his issues C. 3. part 50. Sir George Brown's Case 10 E. 4. 1. there Executors may give away the goods of the Testator but they cannot forfeit the goods of their Testator Com. 293. Osborns Case Guardian in
Soccage may grant the Ward but he cannot forfeit him C. 3. part 3. Right of Actions reals because they are in privity by general words of a Statute are not given to the King v. Dyer 67. String fellow's Case That which is in custodia Legis cannot be taken as a Distress in a Pound overt cannot be taken out of the Pound upon another Distress The third Point is If he were remitted And I conceive that he was remitted When Tenant in tail is attainted of Treason the issue at the Common Law should inherit as if he had not been attainted Lit. 747. C. 1. part 103. for as to the Estate tail there was no corruption of blood C. 10. part 10. If Tenant in tail before the Statute of 26. H. 8. commit Treason the land shall discend to his issue for the issue doth not claim by the Father but per formam doniâ C. 8. part 166. such a discent shall take away entrie But in our Case Ratcliff had both possession and right and therefore is remitted the speciall Verdict finds that he was remitted and the Judgment given in the Court of Pleas in the Exchequer was that he was remitted It was objected that the Remitter was destroyed by the relation of the Office but the same is not so for the Office relates only to avoid Incombrances viz. acts done by himself but to devest the Freehold and to settle the same in the King the Office shall not relate And if it should relate then the King should lose many Lands which he now hath Com. Nichols Case Tenant for life upon condition to have Fee c. If the Office shall relate then the same takes away the Freehold out of the person attainted à principio and then the Fee cannot accrue and so by that means the King should lose the lands A Remitter is no incombrance for it is an ancient right and the Act of the King cannot do wrong C. 1. part 44. b. 27 Ass 30. There Tenant for life with clause of re-entrie is attainted the reversioner entreth the Office shall not relate to take the Freehold out of the reversioner C. 3. part 38. Relatio est fictio juris and shall never prejudice a third person and the Office found in the life of Katherine shal not prejudice him C. 9. part Beamounts Case the husband and wife are Tenants in tail the husband is attainted of Treason and dyeth yet the wife is tenant in tail when it is not to the damage or prejudice of the King there tempus occurrit Regi C. 7. part 28. Baskervile's Case From 29 H. 8. untill 33 H. 8. Katherine and afterwards Ratcliff had the possession and then the Law was taken to be that Ratcliff had a lawfull possession For these reasons he concluded that the Judgment ought to be affirmed In Trinity Term following viz. Trin. 21. Jacobi Regis the Case was argued again and then Coventry the Kings Attorney general argued for the Lord Sheffield That the Judgment given in the Court of Pleas in the Exchequer ought to be reversed He said I will insist only upon the right of the Case Whether upon the right of the Case Ratcliff may maintain a Monstrans de Droit First If by the Attainder the right of the old Estate tail as well as of the new Estate tail be forfeited Secondly Admitting that the old right of entail be not forfeited then if the Office do overreach the Remitter for then a Monstrans de Droit doth not lie but a Petition for the reason of the discontinuance First it is evident that when Ralph Bigot Tenant in tail in possession 6 H. 8. made a Feoffment that that was a discontinuance and it is as clear that the right of the old Estate tail vested in Francis Bigot The Feoffment made by Francis Bigot 21 H. 8. did not devest the right of the old tail First for the weaknesse of the Feoffment Secondly for the inseparableness of the Estate tail which is incommunicable and not to be displaced by weak assurance That Feoffment was made according to the Statute of 1 R. 3. and not by the Common Law but only by force of the said Statute The Feoffment is without Deed and so nothing passeth but only by way of Livery or else nothing at all Also at the time of the Feoffment in 21 H. 8. the Feoffees were in seisin of the Lands and Ratcliff shews in his Monstrans de Droit that Francis Bigot did disseise the Feoffees and so the Feoffment had no force as a Feoffment at the Common Law but only by the Statute of 1 R. 3. For at the Common-Law if Cestuy que use had entred upon the Feoffees and made a Feoffment nothing had passed There is a difference betwixt a Feoffment at the Common Law and a Feoffment according to the Statute of 1 R. 3. which operates sub modo Feoffments are the ancient Conveyances of Lands but Feoffments according to the Statute of 1 R. 3. are upstarts and have not had continuance above 150 years In case of Feoffments at the Common Law the Feoffor ought to be seised of the lands at the time of the Feoffment but if a Feoffment be according to the Statute of 1 R. 3. in such Case the Feoffor needeth not be in possession Feoffments at the Common Law give away both Estates and Rights but Feoffments by the Statute of R. 3 give the Estates but not the Rights In case of Feoffment at the Common Law the Feoffee is in the Per viz. by the Feoffor but in case of Feoffments by the Statute of R. 3. the Feoffees are in in the Post viz by the first Feoffees 14 H. 8 10. Brudnel says that a Feoffment by Cestuy que use by the Statute of 1 R. 3 is like to fire out of a flint so as all the fire which cometh out of the flint will not fasten upon any thing but tinder or gunpowder So a Feoffment by Cestuy que use by force of the Statute of 1 R. 3 will not fasten upon any thing but what the Statute requires 5 H. 7. 5. 21 H. 7. 25. 8 H. 7 8. 27 H. 8. 13. 23. by these books it appeareth that if Cestuy que use maketh a Leafe for life during the Lease he gaines nothing and after the Lease he gains no reversion for the Lessee shall hold of the Feoffees and of them he shall have aid and unless it be by deed Indented in such a Case a Reservation of Rent is void and the Lessor in such a Case cannot punish the Lessee for waste for he makes the Lease meerly by the power which the Statute gives him 8. H. 7. 9. Cestuy que use makes the Feoffment as servant to the Feoffees and if not as servant to the Feoffees yet at least as servant to the Statute of 1 R. 3. If a man entreth upon another and maketh a Lease for life he gains a reversion to himself and shall maintain an Action of Waste but
be quashed and exonerated and discharged in the possession of the King For it is out of the Rule which is in C. 10 part 48 for the cause of quieting and repose of the Terre-Tenants otherwise it would be a cause of Suits But all Rights Tythes Actions c. might for the same reasons viz. for the quiet of the Terre-Tenants and the avoidance of Suits and Controversies be released to the Terre-Tennants By the same reason here the right of Action of Francis Bigot shall be discharged and exonerated by this forfeiture viz. for the quiet and repose of the Terre-Tenants for the Law delights in the quiet and repose of the Terre-Tenants If Francis Bigot had granted a Rent the ancient right of the tail had been charged C. 7. part 14. Where Tenant in tail makes a lease for life and grants a Rent charge and Tenant for life dieth he shall not avoid his charge although he be in of another Estate because he had a defeisible possession and an ancient right the which c. so as they could not be severed by way of conveyance and charge and no lawfull act Then I admire how he will sever this from himself by his unlawfull act viz. the Feoffment the discontinuance Lit. 169. If a man commit Treason he shall forfeit the Dower of his wife yet he doth not give the dower of his wife but it goes by way of discharge in those Lands 13 H. 7. 17. Tenant by the Curtesie in the life of his wife cannot grant his Estate of Tenant by the Curtesie to another but yet he for Felony or Treason may forfeit it viz. by way of discharge A Keeper of a Park commits Treason there the King shall not have the Office of Keeper for a forfeiture because it is an Office of trust but if he had been Keeper of the Kings Park and had been attainted there he should forfeit his Office by way of discharge and exoneration This Statute of 26 H. 8. hath been adjudged to make Land to revert and not strictly to forfeit Austin's Case cited in Walsingham's Case Tenant in tail the reversion in the King the Tenant makes a Lease for years and dies the issue accepts of the Rent and commits Treason the Lease is avoided for the King is not in by forfeiture by the Statute of 26 H. 8. but by way of Reveter by the Statute of 26 H. 8. It was objected that if Tenant in tail maketh a Feoffment and takes back an Estate for life and is attainted of Treason that he shall not forfeit his old right I agree that Case For indeed it is out of the Statute of 26 H. 8. which speaks of Inheritance and in that Case the Tenant hath but a Freehold The Statute of 26 H 8. saith that it shall be forfeited to the King his heirs and Successors And if in our Case the old right should remain then it should be a forfeiture but during the life of the Testator When the Common Law or Statute Law giveth Lands it gives the means to keep them as the Evidences So here the King is to have by force of this Statute of 26 H. 8. the Evidences The forfeiture of right is expresly within the Statute of 26 H. 8. as the forfeiture of Estate as by any right title or means for the old Estate tail is the means of Estates since 6 H. 8. And if you will take away the Foundation the Building will fall For all the Estates are drawn out of the old Estate tail The Statute of 26 H. 8. is not an Act of Attaindor for none in particular is attainted by the Act but the Act of 31 H. 8. doth attaint Francis Bigoâ in particular It was objected that here in this case there needed not to be any express Saving I answer that there are divers Statutes of Forfeitures yet the Statutes have Savings in them so as it seems a saving in such Acts were not superfluous but necessary The Act of 33 H. 8. for the attainder of Queen Katharine there is a saving in the Act and yet an Act of Forfeiture Dyer 100. there the land vested in him in the Remainder by force of a saving in the Act so the saving is not void but operative C. 3. part Dowlies Case vid. the Earl of Arundels Case there the saving did help the wife so it appears savings are in Acts of Parliaments of Forfeiture and Acts of Attaindor Dyer 288 289. The Bishop of Durham had Jura Regalia within his Diocese and then the Statute of 26 H. 8. came now whether the Forfeiture for Treason should be taken away from the Bishop by reason of that Statute and given to the King was the doubt It was holden that of new Treasons the Bishop should not have the Forfeitures for those were not at the Common Law as the Forfeitures of Tenant in tail but that he should have the Forfeitures of Lands in Fee within his Diocese and that he had by force of the saving in the Statute so that a Saving is necessary and operative Com. Nichols's Case there Harpers opinion that there needs no saving to strangers but yet a saving is necessary for the Partie and the Issue if they have any thing as well as strangers vid. C. 3. part Lincoln Colledg Case It is the Office of a good Interpreter to make all the parts of a Statute to stand together Com. 559. By these general words Lose and Forfeit and by excluding of the heir in the saving the heir is bound So the Judges have made use of a Saving for it is operative 2 Ma. Austin's Case cited in Walsinghams Case Tenant in tail the Reversion in the Crown Tenant in tail made a Lease for years and levied a Fine to the King the King shall not avoid the Lease for the King came in in the Reverter but in such Case if he be attainted of Treason then the King shall avoid the Lease So a Statute of Forfeiture is stronger then a Statute of Conveyance By this Statute of 26 H. 8. Church Land was forfeited for so I find in the Statute of Monasteries which excepts such Church Lands to be forfeited for Treason Dyer Cardinal Poole being attained did forfeit his Deanary and yet he was not seised thereof in jure suo proprio for it was jus Ecclesiae 27 E. 3. 89. A writ of Right of Advowson by a Dean and he counteth that it is Jus Ecclesiae and exception that it is not Jus suae Ecclesiae But the Exception was disallowed for the Jus is not in his natural capacitie but in his politique capacitie and yet by this Statute of 26 H. 8. such Church Land was forfeited for Treason this is a stronger Case then our Case Vide C. 9. part Beaumont's Case Land is given to husband and wife in tail and the husband is attainted of Treason the wife is then Tenant in tail yet the Land is forfeited against the issue although it be but a possibility for the whole estate
certain Farme Lands called Estons and that a Fine was levied of Lands in Eslington Eston and Chilford whereas Eston lay in another Parish appell D. Calthrope argued That the Land in Eston did passe by the Fine although the Parish was not named for that the Writ of Covenant is a personall Action and will lie of Lands in a Hamlet or lieu conus 8. E. 4 6. Vide 4. E. 3. 15. 17. Ass 30. 18. E. 3. 36. 47. E. 3. 6. 19. E. 3. Brev. 767. 2. He said That it was good for that the Plea went only to the Writ in abatement but when a Concord is upon it which admits it good it shall not be avoided afterwards 3. He said That a Fine being a common assurance and made by assent of the parties will passe the Lands well enough 7 E. 4. 25. 38. E. 3. 19. And he vouched Pasch 17. Jacobi in the Kings Bench Rot. 140. Monk and Butlers Case Where it was adjudged that a Fine being but an arbitrary assurance would passe Lands in a Lieu conus and so he said it would do in a common recovery And Richardson said That if a Scire facias be brought to execute such a recovery Nul tiel ville ou Hamlet is no plea and the Fine or recovery stands good Vide 44. E. 3. 21. 21 E. 3. 14 Stone And the opinion of the Court was That the Lands did well passe by the Fine Mich. 8. Caroli in the Kings Bench 509 CAWDRY aud TETLEY's Case CAwdry being a Doctor of Physick the Defendant Praemissorum non ignorans to discredit the plaintiff with his Patients as appeared by the Evidence spake these words to the plaintiffe viz. Thou art a drunken Fool and an Asse Thou wert never a Scholer nor ever able to speak like a Scholer The opinions of Jones and Crook Justices were that the words were actionable because they did discredit him in his Profession and hee hath particular losse when by reason of those words others do not come to him And Palmers Case was vouched Where one said of a Lawyer Thou hast no more Law then a Jackanapes that an Action did lie for the words Contrary if he had said No more Wit And William Waldrons Case was also vouched where one said I am a true Subject thy Master is none that the words were actionable Mich. 4. Caroli in the Kings Bench. 510 The King and BAXTER SIMMON's Case THE Case was this Tenant in tail the Remainder in taile the Remainder in Fee to Tenant in tail in possession Tenant in tail in Remainder by Deed enrolled reciting that he had an estate tail in Remainder Granted his Remainder and all his estate and right unto the King and his Heirs Proviso that if he pay ten shillings at the Receipt of the Exchequer that then the Grant shall be void Tenant in tail in possession suffers a common Recovery and afterwards deviseth the Lands to I. S. and dieth without Issue 18. Jacobi Afterwards 21. Jac. he in the Remainder in tail dieth without issue but no seisure is made nor Offence found that the lands were in the Kings hands Noy who argued for the King The first Point is When Tenant in taile recites his estate and grants all his estate and right to the King and his Heirs what estate the King hath And if by the death of Tenant in tail without issue the estate of the King be so absolutly determined that the Kings possession needs not to be removed by Amoveas manum And he argued That when the Lands are once in the King that they cannot be out of him again but by matter of Record 8. E. 3. 12. Com. 558. And a bare entry upon the King doth not put the King out of possession of that which was once in him And so was it adjudged 34. Eliz. in the Lord Paget's Case as Walter chief Baron said And Noy took this difference 8. H. 5. Traverse 47. and 8. E. 2. Traverse 48. If a particular estate doth determine before that the King seise there the King cannot afterwards seise the Lands But if the King hath once the Lands in his hands or possession there they cannot be devested out of him but by matter of Record So F. Nat. Br. 254. If a man be seised of Lands in the right of his Wife and be outlawed for Felonie for which the Lands come into the Kings hands and afterwards hee who is outlawed dieth there a Writ of Diem clausit extremum shall issue forth which proveth That by the death of the Husband the Lands are not immediately out of the King and setled in the Wife againe 22. E. 4. Fitz. Petition 9. Tenant in taile is attainted of Treason and the Lands seised into the Kings hands and afterwards Tenant in taile dieth without Issue he in the Remainder is put to his Petition which proveth that the Lands are not presently after the death of Tenant in taile without issue out of the King But he agreed the Cases If Tenant in taile acknowledgeth a Statute or granteth a Rent charge and dieth that the Rent is gone and determined by his death as it is agreed in 14. Assisarum The second point argued by Noy was That although that there was not any seizure or Offence found which entituled the King Yet the Deed enrolled in the Chancery which is returned in this Court did make sufficient title for the King as 8. E. 3. p. 3. is The Judges of Courts ought to Judge upon the Records of the same Courts In 8. H. 7. 11. a Bayliff shewed That a Lease was made to T. his Master for life the Remainder to the King in Fee and prayed in Ayd of the King And the Plaintiff in Chancery prayed a Procedendo And it was ruled That a Procedendo should not be granted without examination of the Kings title Thirdly he said That in this case he who will have the Lands out of the possession of the King ought to shew forth his title and in the principall case it doth not appear that the Defendant had any title Vide 10. H. 7. 13. Athowe Serjeant argued for the Defendant he said That in this case the King had an estate but for the life of Tenant in tail And therefore he said That If Tenant in tail grant totum statum suum that an estate but for his own life passeth as Litt. is 145. and 13. H. 7. 10. acc So If Tenant for life the remainder in taile bee and he in the Remainder releaseth to Tenant for life in possession nothing passeth but for the life of Tenant in tail 19. H. 6. 60. If Tenant in tail be attainted of Treason or Felonie and Offence is found and the King seiseth the lands he hath an estate but for the life of Tenant in tail And he cited 35. Eliz. C. 2 part 52. Blithmans case Where Tenant in tail Covenanted to stand seized to the use of himself for his own life and after his death to the use
and Slingbyes case 361 Londons case 374 Ludlow and Stacies case 377 Loxe case 345 Lee and Grissels case 442 Leonards case 451 Lone and Hills case 458 Litfield and Melhers case 459 Langley and Stotes case 478 Lancaster and Kigleys case 507 Lovegrave and Brewens case 514 M MOuntjoyes Case 24 Macrowes Case 38 Marsh and Palfords Case 53 Megods Case 77 Miller and Gores Case 122 Mayes Case 173 Mannocks Case 191 Meâr and Ridouts Case 241 Marriots Case 248 Morris Case 265 Mounteagle and Pemeddocks Case 266 Meades Case 274 Miller and Reignolds Case 293 Manwoods Case 301 Maior of Yorks Case 360 Mildmays Case 416 Morgans Case 416 Morris and Clarks Case 435 Mellon and Herns Case 435 Mills Case 464 Marshes Case 465 Manns Case 471 Mutle and Does Case 480 Mole and Carters Case 484 Monk and Butchers Case 508 Moor and Hawkins Case 486 N NOrris and Salisburies case 154 Newton and Richards case 240 Newmans case 242 Newman and Babbingtons Case 250 Norton and Lysters case 291 Norton and Symms case 303 O OSborne and Trittels Case 99 Occoulds case 268 Owen alias Collins case 363 Owfield and Sheirts case 430 Ognels case 483 Offlies case 517 P POles case 13 Prideaux case 44 Plymptons case 116 Proctors case 168 Pinders case 185 Peto and Chitties case 193 Perepoints case 217 Piggot and Goddens case 221 Pitts and Wardels case 230 Prrrot and Kebles case 281 Porters case 302 Paynes case 308 Piggot and Pigots case 330 Prat and Lord Norâhs case 358 Paginton and Huets case 370 Plotts case 380 Pollyes case 403 Sir Iohn Parkingtons case 416 Pritchard Williams case 423 Philpot and Fielders case 427 Pye and Bonners case 443 Peters case 456 Pits and Horkley's case 458 Proctor and Cliffords case 468 Payn and Colleges case 490 Parks case 502 Palmers case 509 Perpoynt Thimblebys case 513 Pages case 717 Plats case 518 L. Pagets case 510 Q Quodds case 246 R ROots case 139 Rushwels case 186 Royley and Dormes case 260 Read and Hewes case 269 Rosseâ and Walshes cass 296 Reorsbies and Cuffs case 316 Roe and Gloves case 332 Roberts and Hills case 434 Randal and Harveys case 452 Royden and Moulstons case 458 Roper and Roydons case 491 Roy and Hills case 517 S Skipwiths case 22 Savel and Cordels case 35 Sydenham Worlingtons case 40 Savacres case 47 Stargies case 75 Smith and Smiths case 88 Shotbolts case 91 Stransam and Colborns case 97 Strangden and Barcels case 163 Sayland and Ridlers case 177 Skipwith and Sheffields case 178 Stowels case 182 Sir John Spencer and Poyntz case 203 Stebbings case 239 Stones case 247 Sancford and Havels case 263 Sprat and Nicholsons case 283 Seymors case 307 Stowhridge Archers case 311 Smiths case 317 Sherloes case 347 Sheriff and Bridges case 349 Simpsons case 364 Smith and Staffords case 379 Slyes case 390 Spicer and Spicers case 398 Stewry and Stewryes case 410 L. Sheffield Ratcliffs case 417 Sadlers case 417 Snell and Bennets case 426 Shooter and Emets case 435 Stone and Roberts case 435 Sely and Flayles case 448 Seignior and Wolmers case 453 Stanton and Barneys case 458 Sherrington Worsleys case 465 Suttons case 476 Symmes case 477 Samson and Gatefields case 482 Scots case 487 Sommers case 489 Shortridge and Hills cases 492 Shirtford and Berrowes case 502 Syms and Smiths case 513 Simpsons case 518 Shackbolts 495 Spurlings case 479 T. THrogmorton and Terringhams case 37 Taylor and Ribera's case 90 Taylor and James case 195 Traherns case 321 Totnam and Hoskins case 445 Taylor and Askies case 455 Tollyn and Taylors case 469 Tanfield and Hirons case 486 Treventries case 488 Tucker and Carrs case 491 Taylor and Tomlyns case 511 Tennants case 507 Tompsons case 369 U. VIcar of Pancras case 63 Vernon and Grays case 145 Vaughans case 327 Veseys case 406 Vrry and Bowyers case 479 Vinior and Viniors case 515 W. VVEbb Potters case 25 Windsmore Hulberts Case 64 Wiseman and Wallmyers case 107 Wood and Ashes case 135 Warrens case 138 Widdal sir John Ashtons case 142 Winkefields case 152 Warners case 183 Whitlock and Hartwells case 184 Wilson and Wormels case 226 Woolseys case 249 Wekers case 257 Wright and Wrights case 262 Wetherell and Greens case 280 Wedlock and Hardings case 295 Wheelers case 315 Wormleighton and Hunters case 338 Whorewoods Case White and Moores case 340 Wrotesley Candishes case 354 Winscomb and Dunches case 376 Webb and Tucks case 392 Waite and Inhabitants of Stokes case 397 Webb and Paternosters case 401 Williams and Gibbs case 409 White and Edwards case 412 Wiseman and Denhams case 424 Waterer Montagues case 429 Wheeler Appletons case 434 Waterman and Cropps case 467 Whittie and Westons case 479 VVillis case 483 VVilliams and Floyds case 495 VValdrons case 509 Y. YArram and Bradshawes case 145 Yate and Alexanders case 408 Young and Englesfields case 422 Z. ZOuch and Bramports case 165 Zouch and Mitchels case 225 Zouch and Moores case 491 Mich. 17. Eliz. In the Kings Bench. 1. THis Case was moved to the Court. If an Abby hath a Parsonage appropriate in D. which is discharged of payment of Tithes and afterward the Abbot purchaseth part of the lands in the same Town and Parish where the Parsonage is That this land so purchased is discharged of Tithes in the hands of the Abbot For the Tithes were suspended during the possession of the Abbot in his own hands But after that the Abby was surrendred into the hands of the King Anno 30. H. 8. And afterwards the same possessions c. were given to King H. 8. by the Statute of 31. H. 8. cap. 13. as they were in the hands of the Abbot The question was Whether the Land so purchased by the Abbot before the surrender were discharged of payment of Tithes by the Statute or not And the opinion of Mr. Plowden was That they were not discharged of Tithes by the Statute For that no lands are discharged by the Statute but such lands as were lawfully discharged in right by composition or other lawfull thing And the lands in this case were not discharged in right but suspended during the possession of the Abbot in his own hands And so hee said it is when the Land is purchased by one and the Parsonage by another the right of Tithes is revived and the lands charged as before the purchase of the Abbot And so he said it had been adjudged Pasc 17. Eliz. In the Common Pleas. 2. A Man makes a Lease for Life and afterwards makes a Lease unto another for Years to begin after the death of Tenant for life The Lessee for yeers dieth intestate The Ordinary commits Administration The Administrators and the Tenant for life joyn in the purchase of the Fee-simple Two questions were moved The first was Whether the Fee were executed in the Tenant for life for any part 2. Whether the Term were gone in part or in all And the opinion
afterward the Husband suffers the wood to grow five and twenty yeers and afterwards hee dieth The question was Whether the Wife being Tenant for life might cut that Underwood And it was moved What shall be said seasonable Underwood that a Termor or Tenant for life might cut Dyer Chief Justice and all the other Justices held That a Termor or Tenant for life might cut all Underwood which had been usually cut within twenty yeers In 11. H. 6. 1. Issue was taken If they were of the age of twenty yeers or no. But in the Wood-Countries they may fell seasonable wood which is called Sylva caedua at six and twenty eight and twenty thirty years by the custome of the Country And so the Usage makes the Law in severall Countries And so it is holden in the books of 11. H. 6. and 4. E. 6. But they agreed That the cutting of Oakes of the age of eight yeers or ten years is Waste But by Meade Justice the cutting of Hornbeams Hasels Willows or Sallows of the age of forty yeares is no Waste because at no time they will be Timber Another question which was moved was That at the time of the Feoffment it was seasonable Wood and but of the growth of fourteen or fifteen yeers If this suffering of the Husband of it to grow to 25 years during the Coverture should bind the Wife so as she cannot cut the Woods Gaudy Serjeant said That it should not bind the Wife For if a Warranty descend upon a Feme Covert it shall not bind her So if a man seized of Land in the Right of his Wife be disseised and a Descent be cast during the Coverture it shall not bind the Wife but that she may enter after the death of the Husband But by Dyer Chief Justice and all the other Justices This Permission of the Husband shall bind the Wife notwithstanding the Coverture for that the time is limited by the Law which cannot be altered if it be not the custome of the Country As in the case of 17. E. 3. Where a man makes a Lease for years and grants that the Lessee shall have as great commoditie of the Land as hee might have Notwithstanding these words he cannot dig the land for a Mine of Cole or Stone because that the Law forbids him to dig the land So in the principall Case The Wife cannot fell the Wood notwithstanding that at the time of her estate she might and afterwards by the permission of the Husband during the coverture the time is incurred so as she cannot fell it because the Law doth appoint a time which if it be not felled before such time that it shall not be felled by a Termor or a Tenant for life but it shall be Waste Hill 23. Eliz. In the Common Pleas. 7. A Man makes a Lease of a Garden containing three Roodes of Land and the Lessee is ousted and he brings an Ejectione firme and declares that he was ejected of three Roods of Land Rodes Serjeant moved That by this Declaration it shall be intended that he was ejected of the Garden of which the Lease was made and so the Ejectione firme would lie And it was holden by the Lord Chief Justice Dyer That a Garden is a thing which ought to be demanded by the same name in all Precipes as the Register and Fitz. N. Brevium is And this Action is greater then an Action of Trespasse because by Recovery in this Action he shall be put into Possession But Meade and Windham Justices contrary And they agreed that in all reall Actions a Garden shall be demanded by the name Gardinum otherwise not But this Action of Ejectione firme is in the nature of Trespasse and it is in the Election of the Party to declare as here he doth or for to declare of the Ejectment of a Garden for a Garden may be used at one time for a Garden and at another time be ploughed and sowed with Corn. But they conceived that the better order of pleading had been if he had declared that he was ejected of a Garden containing three Roodes of Land as in the Lease it is specified Hill 23. Eliz. In the Common Pleas. 8. SErgeant Fenner moved this case That Land is given to the Wife in tail for her Joynture according to the Statute of 11. H. 7. The Husband dieth the Wife accepts a fine Sur conusans de droit come ceo c. of a Stranger And by the same fine grants and renders the Land to him for an Hundred years whether this acceptance of a Fine and Render by the Wife were a forfeiture of her estate so as he in the Reversion or Remainder might enter by the Statute Mead and Dyer Justices it is a forfeiture and Mead resembled it to the Case in 1 H. 7. 12. where it is holden That if Tenant for life do accept of a Fine Sur conusans de droit come ceo c. that it is a forfeiture and the Lessor may enter But Fenner asked their opinions what they thought of the principall case But haesitavernut because they said it was a dangerous case and is done to defraud the Statute of 11. H. 7. Pasch 23. Eliz. in the Common Pleas. 9. A Man made a Feoffment in Fee to two to the use of himself and his wife for the term of their lives without impeachment of waste during the life of the Husband the remainder after their decease to the use of I. his son for the term of his life And further by the same Deed Vult concedit that after their three lives viz. of the Husband Wife and Son that I. S. and I. D. two other Feoffees shall be seized of the same Land to them and their heirs to the use of the right Heirs of the body of the Son begotten It was moved That by this deed the two later Feoffees should be seized to the use of the right Heirs of the body of the Son begotten after the death of the Husband Wife and the Son But it was holden by all the Justices That the second Feoffees had not the Fee because by the first part of the Deed the Fee-Simple was given to the first Feoffees and one Fee-Simple cannot depend upon another Fee-Simple Notwithstanding that after the determination of the former uses for life the Fee-Simple should be vested again in the Heires of the Feoffer and that the words That the second Feoffees should be seized should be void But Dyer Chief Justice and the other Justices were against that because there wanted apt words to raise the later use As if a man bargain and sell his Reversion of Tenant for Life by words of Bargain and Sale only and the Deed is not Enrolled within the six months but afterwards the Tenant for Life doth attorne yet notwithstanding that the Reversion shall not passe because Bargain and Sell are not apt words to make a Grant And that Case was so adjudged in the Common Pleas as the
24. Eliz. in the Kings Bench. 19. IN an Action upon the Case upon a Promise The consideration was Where I. S. had granted a Term to I. D. That afterwards upon the request of I. S. I. D. did make to W. an Estate for four years upon which W. brought his Action And after Verdict it was moved in stay of Judgement that there was no good consideration and a difference taken where the Promise was upon the Grant and where afterwards If it were before then the Condition was good but if it were afterwards it was not good And it was adjudged That the Plaintiffe Nihil capiat per billam Pasch 24. Eliz. in the Kings Bench. 20. AN Action upon the Case upon a Promise was The Consideration was That in consideration that the Plaintiffe Daret diâm solutionis the Defendant Super se assumpsit and because he doth not say in facto that he had given day It was adjudged that no sufficient Consideration was alledged But if the Consideration were Quod cum indebitatus c. the same had been a good Consideration without any more for that implies a Consideration in it self Pasch 24. Eliz. in the Kings Bench. 21. IT was said by Cooke That the Chancellor or any Judge of any of the Courts of Record at Westminster may bring a Record one to another without a Writ of Certiorare because one Judge is sufficiently known one to the other as 5. H. 7. 31. where a Certificate was by the Chancellor alone and to this purpose is 11. H. 4. But that other Judges of base Courts cannot do nor Justices of the Peace as 3. H. 6. where the certificate by Suitors was held void Pasch 25. Eliz. In the Common Pleas. 22. SKIPWITH'S Case IT was found upon a speciall verdict in an Action of Trespass that the place where c. was Copy-hold land And that the Custome is That quaelibet foemina viro cooperta poterit devise lands whereof she is seised in Fee according to the custome of the Manor to her Husband and surrender it in the presence of the Reeve and six other persons And that I. S. was seised of the land where c. and had issue two Daughters and died and that they married husbands and that one of them devised her part to her husband by Will in writing in the presence of the Reeve and six other persons and afterwards at another day shee surrendred to the Husband and he was admitted and she died and her Husband continued the possession And the Husband of the other Daughter brought an Action of Trespasse Rodes Serjeant The Custome is not good neither for the Surrender nor for the Will for two causes One for the uncertainty of what estate shee might make a Devise and because it is against reason that the Wife should surrender to the Husband Where the Custome shall not be good if it be uncertain he vouched 13. E. 3. Fitz. Dum fuit infra aetatem 3. The Tenant saith that the lands are in Dorset where the Custome is that an Enfant may make a Grant or Feoffment when he can number twelve pence And it was holden that because it is uncertain when he can so do the Custome is not good 19. E. 2. in a Ravishment of Ward the defendant pleaded that the custome is that when the Enfant can measure an ell of cloth or tell twelve pence as before that he should be out of Ward and it is holden no good custom for the cause aforesaid 22. H. 6. 51. a. there a man prescribed That the Lord of D. had used to have Common for him and all his Tenants And because it is not shewed what Lord whether the Lord mediate or immediate it is adjudged no good custome And as to the Surrender it is against reason that the Wife should give to the Husband for a Wife hath not any Will but the Will of her Husband For if the Husband seised in the right of his Wife make a Feoffment in Fee and the Wife being upon the land doth disagree unto it saying that shee will never depart with it during her life yet the Feoffment is good and shall binde during the life of the Husband as it is holden in 21. E. 3. And therefore it is holden in 3. E. 3. Tit. Devise Br. 43. That a Feme covert cannot devise to her Husband for that should be the Act of the Husband to convey the land to himself And in the old Natura Brevium in the Additions of Ex gravi quaerela it is holden so accordingly And the Case in 29. E. 3. differs much from this Case For there a woman seised of lands devisable took an Husband and had issue and devised the lands to the Husband for his life and died and a Writ of Waste was brought against him as Tenant by the Courtesie and it was holden that it did lie and that he is not in by the Devise for the reason there is because he was in before by the Courtesie But as I conceive that Case will disprove the Surrender for in as much as he had it in the Right of his wife he could not take it in his own Right Also he took another Exception in the principal Case because that the wife was not examined upon the Surrender but none of the Justices spake to that Exception but when the Record was viewed it appeared that it was so pleaded Further He said That the devise was void by the Statute of 34. H. 8. Cap. 5. where it is said It is enacted That Wills and Testaments made of any Lands Tenements c. by women Coverts or c. shall not be taken to be good or effectual in Law And he said That this Statute doth extend to customary Lands And as to that all the Justices did agree That it is not within the Statute And as to the Statute of Limitations Andârson chief Justice said That if a Lease for years which perhaps will not indure sixty years shall be taken strong this shall Anderson moved That if the Lord Lease Copyhold land by Word Whether the Lessee might maintain an Ejectione firme and he conceived not for in an Ejectione firmâ there ought to be a Right in Fact And although it be by conclusion it is not sufficient for that the Jury or Judge are not estopped or concluded And he conceived That if Tenant at Will make a Lease for years that it is no good lease betwixt him and the Lessor but that he may well plead that he had nothing in the land Meade contrary but they both agreed That the Book of 14. E. 4. which saith That if Tenant at Will make a lease for years that he shall be a Disseisor is not Law Anderson said That the prescription in the principal Case was not good for it is Quod quaelibet foemina viro cooperta poterit c. and it ought to be that feme Coverts possunt and by the Custome have used to devise to the
a Prohibition And Suit and Clenche Justices He shall have a Prohibition for he claims onely a portion of Tithes and that by prescription and not meerly as Parson or by reason of the Parsonage but by a collaterall cause viz. by Prescription which is a Temporall cause and thing And it is not materiall whether it be betwixt two Parsons Vide 20. H. 6. 17. Br. Jurisdiction 80. and 11. H. 4. and 35. H. 6. 39. Br. Jurisdiction 3. Where in Trespasse for taking of Tithes the Defendant claimed them as Parson and within his Parish and the Plaintiffe prescribed That he and his predecessors Vicars there had had the Tithes of that place time out of minde c. And the opinion of the Court was that the right of Tithes came in debate betwixt the Vicar and the Parson who were Spirituall persons who might try the right of Tithes And therfore there the Temporall Court should not have the Jurisdiction Mich. 28 29 Eliz. In the Kings Bench. 56 IN an Indictment upon the Statute of 8. H. 6. of Forcible Entry the Case was this One was Lessee for yeers and the Reversion did belong unto the Company of Goldsmiths And one was indicted for a forcible Entry and the words of the Indictment were That expulit disseisivit the Company of Goldsmiths quendam I. S. tenentem expulit Cooke took exception to the Indictment and said that a disseisin might be to one although not in possession as to a Reversioner upon a term for yeers or upon a Wardship but he could not be expulsed if he were not in possession for privatiâ praesupponit habitum And after it saith that the Tenant was expulsed and two cannot be expulsed where one onely was in possession therefore it ought to have said that the Tenant of the Free-hold was disseised and the Termor expelled and it applyes the word expulit to both And Fuller took another Exception that the Cart is set before the horse For he who had the Free-hold could not be disseised if his Termor were not first ousted and the Indictment is That the Tenant of the Free-hold was expulsed and disseised and then the Termor was expelled But Sui Justice as to that said that the later clause scil et quendam I. S. tenentem c. is but surplusage For if one enter with force and expell the Tenant of the Free-hold it is within the Statute of 8. H. 6. Then Fuller moved that the Indictment doth not shew the place where he expelled him But Cleâch Justice said that that was not material for he could not expell him at another place then upon the Land As a man cannot make a Feoffment by livery and seisin at another place but upon the Land unless a Feoffment with Livery within the view And as to the Objection of Cook that the Indictment is that he disseised and expelled the Tenant of the Free-hold out of the possession of the Free-hold To that he answered that the possession of the Termor is the possession of him in the Reversion Mich. 28 29. Eliz. in the King 's Bench. 57 A Man seised of a Copy-hold in Fee made his Will and thereby he devised the same unto his Wife for her life and that after her death his Wife or her Executors should sell the Land He surrendred to the use of his Wife which was entred in hac forma viz. to the use of his Wife for life Secundùm formam ultimae voluntatis The Woman sold the Land during her life The question was Whether she might sell or not Suit Justice said That the intent doth appear that she might sell during her life for when it saith That she or her Executors should sell after her death it is meant the Estate which is to come after her death for the Wife after her death could not sell The second Point was When the surrender is to the Wife for life secundùm formam ultimae voluntatis Whether here she have the Land for life and the Fee also to sell Clenche If she had not the Fee to sell then the words Secundùm formam ultimae voluntatis should be void for the Surrender to the use of the wife for life gives her an Estate for life without any other words Suit If it were ad usum ultimae voluntatis without speaking what Estate the Wife should have no doubt but shee should have for her own use for life and that afterwards she might sell the Land but he said As the Case is put it is a pretty Case And it was adjourned Mich. 28 29. Eliz. in the Kings Bench. 58 THis Case was moved in Court A Copy-holder committed Waste by which a forfeiture accrued to the Lord who afterwards did accept of the Rent The question was Whether by this acceptance he were concluded of his Entrie for the Forfeiture Cook said He was not for it is not as the Case 45 E. 3. where a Lease is made upon Condition that the Lessee shall not do Waste and he commits Waste and then the Lessor accepts the Rent there he cannot enter But otherwise is it of a Copy-hold for there is a condition in Law and here in Fait and a condition in Fait may save the Land by an Acceptance but a condition in Law cannot for by the condition in Law broken the Estate of the Copyholder is meerly void And the Court agreed That when such a Forfeiture is presented it is not to Entitle the Lord but to give him notice for the Copy-hold is in him by the Forfeiture presently without any Presentment A man made a Lease for years upon condition that he should not assign over his Lease and it was reserving Rent and after he did assign it and then the Lessor accepted the rent there he shall not enter for the condition broken Lessee for years upon condition that he should not do Waste and the Lessor accepts of the Rent for the quarter in which the Waste was done yet he may enter but if he do accept of a second payment of the Rent then it is otherwise but if it were upon condition That if he do waste that his Estate shall cease There no acceptance of the Rent by the Lessor can make the Lease good It was adjourned Mich. 28 29. Eliz. in the Kings Bench. 59 THE Lord Admirall did grant the Office of Clark or Register of the Admirall Court to one Parker and Herold for their lives eorum diuâius viventi And Herold bound himself in a Bond of Five Hundred Pound to Parker that the said Parker should enjoy the Office cum omnibus proficuis during his life And afterwards Herold did interrupt the said Parker in his Office upon which he brought an Action of Debt upon the Bond. The Defendant pleaded That such is the custome That the Admirall might grant the same Office for the life of the Admirall only and that he is dead and so the Office void and that he did interrupt him as it was lawfull
in the Point But I will put you as strong a Case A Judgement is given upon an Exigent by the Coronor yet by 28. Ass 49. If there be no Returne of the Exigent it is no sufficient Out-lawry and one Pleaded the same in the plainplaintiffe and said that it appeared by the Record and vouched the Record and because the Exigent was not returned it was not allowed And so was the Case of Procter and Lambert 4 5. Philip and Marie adjudged As to the Reports which are not printed vouched by Tanfield eâdem facilitate negantur quâ affirmantur Upon an Elegit if there be goods sufficient the Sheriff is not to meddle with the Lands and if there be not sufficient goods yet hee is not to meddle with the beasts of the plough If a man have an Authoritie and he doth lesse then his Authoritie all is void as here the Return of the Writ is part of his Authority As 12. Ass 24. If a man have a letter of Atturney to make Livery and Seisin to two and he makes it to one all is void and he is a disseisor to the Feoffor So 4. H. 7. If he have a letter of Atturney to make Livery of three Acres and he makes onely Livery of two Acres and not of the third Acre it is void for the whole Also the Elegit is Quod extendi facias liberari quousque the Debt be satisfied and therefore if the land be extended onely and there be no delivery made of the land ut tenementum suum liberum according to the Writ then there is no execution duly done And in the principall Case there was no delivery made of the land It was adjourned Mich. 28 29. Eliz. in the King 's Bench. 97 STRANSAM against COLBURN STransam brought a Writ of Error against Colburne upon a Judgment given in a Writ of Partitione facienda and divers Errors were assigned The first Error assigned was That the party doth not shew in his Writ nor in his Declaration upon what statute of Partition hee grounds his Action And there are two Statutes viz. the Statute of 31. H. 8. chap. 1. and the Statute of 32. H. 8. chap. 32. And yet hee groundeth his Action upon one of the Statutes As 3. H. 7. 5. Where the servants of the Bishop of Lincoln were indicted of Murder eo quod ipsi in Festo Sancti Petri 2. H. 7. felonicè apud D. murdraverunt c. and because there are two Feasts of Saint Peter viz. Cathedrae Ad vincula therefore the Indictment was not good 21. E. 3. One brought a Cessavit by severall Precipes viz. of one Acre in D. and of another in S. and of the third in Villa praedicta and because it was uncertain to which praedict shall be referred it was not good 5. H. 7. Br. Action upon the Statute 47. An Information was in the Exchequer for giving of Liveries and the partie did not declare upon what Statute of Liveries and Exception was taken to it and the Exception was not allowed because that the best shall be taken for the King but if it had been in the Case of a common person it had not been good So if a man bring an Action against another for entry into his Land against the forme of the Statute it is not good because hee doth not shew upon what Statute hee grounds his Action Whether 8. H. 6. which gives treble damages or 2. H. 2. which gives Imprisonment and single damages The second Error which was assigned by Weston was That the Declaration doth shew Quod tenet pro indiviso and doth not shew what estate they held pro indiviso And there is a Statute which gives Partition of an estate of an Inheritance viz. 31. H. 8. Cap. 1. And another which gives partition for years or for life and he doth not shew in which of the Statutes it is As if one claime by a Feoffment of Cestuy que use as 4. H. 7. is he ought to shew that the Cestuy que use was of full age at the time of the Feoffment c. for it is not a good Feoffment if he be not of full age So here he ought to shew that he is seized of such an estate of which by the Statute he may have a Writ of Partition For in many Cases there shall be Joynt-Tenants and yet the one shall not have a Writ of Partition against the other by any Statute As if a Statute Merchant be acknowledged to two and they sue for the execution upon it I conceive that the one shall not have partition against the other So if two Joynt-Tenants bee of a Seignorie and the Tenant dieth without heir so as the Lands escheat to them they are joynt-Joynt-Tenants and yet Partition doth not lye betwixt them by any Statute Therefore one may be seised pro indiviso and yet the same shall not entitle him to a Writ of Partition Shuttleworth contrary The Statute doth not give any forme of Writ but the Writ which was at the Common Law before And therefore it is not to be recited what kind of Writ he is to have As to the second point It is not necessary to shew the estate because it cannot be intended that he hath knowledge of the estate of the Defendant For if one plead Joynt-tenancy on the part of the Plaintiffe hee shall not shew of whose gift but if the Defendant or Tenant plead Joynt-tenancy of his part he ought to shew of whose gift and how 7. E. 6. Plo. Com. Partridges case In a Case upon the Statute of Maintenance The Plaintiffe may say That he accepted a Lease and shall not be forced to shew the beginning or the end of it or for what years it is In the Case of the Indictment before and the Case of severall Precipes of severall Acres in severall Towns that lyeth in the Plaintiffs Cognisance But here how can the Plaintiffe know the Defendants estate because he may change it as often as he pleaseth and therefore it is uncertain for if before he had a Fee hee might passe away the same unto another and take back an estate for years Also the Plaintiffe hath appeared and pleaded to the Declaration And therefore he shall not have a Writ of Error Gaudy Justice That is not so Shuttleworth True if there be matter of Error apparant Gaudy Justice Cannot you take notice of your own estate Cook The Declaration is not good therefore the Writ of Error is maintainable By the Common Law No partition lieth betwixt Tenants in common as these are And the Statute of 31. H. 8. gives Partition onely of an estate of Inheritance and prescribes also that the Writ shall be devised in the Chancery there he conceived the Ancient Writ is not to be used I grant for a generall rule That if a Statute in a new Case give an old Writ he shall not say Contra formam Statuti because it is not needfull to recite the Statute
the case which implyed their opinions to be for the Universitie And 21. H. 7. was vouched That the Patronage was only matter of favour and was not a thing valuable And in this case Cook chief Justice said That Apertus haereticus melius est quam fictus Catholicus Mich. 11. Jacobi in the Common Pleas. 310 BOND and GREEN's Case AN Action of Debt was brought against an Administrator the Defendant shewed how that there were divers Judgments had against him in ãâã Aâd ââso that there was another Debt due by the Testator which was assigned over unto the Kings Majesty and so pleaded That he had fully Administred Barker Serjeant took Exception to the pleading because it was not therein shewed that the King did assent to the Assignment and also because it was not shewed that the Assignment was enrolled The Court said nothing to the Exceptions But whereas he Defendant as Administrator did alledge a Retayner in his own hands for a debt due to himselfe The opinion of the whole Court was that the same was good and that an Administrator might retayne to satisfie a debt due to himselfe But it was agreed by the Court That an Excecutor of his own wrong should not Retayne to satisfie his own debt See to this purpose C. 5. part Coulters Case Mich. 11. Jacobi in the Common Pleas. 311 STROWBRIDG and ARCHERS Case IN An Action of debt upon a Bond the Defendant was Outlawed And the Writ of Exigent was viz. Ita quod habeas corpus ejus hîc c. whereas it ought to be coram Justiciariis nostris apud Westminster And for that defect the utlagary was reversed and it was said that it was as much as if no Exigent had been awarded at all And upon the Reversall of the utlagary a Supersedeas was awarded and the party restored to his goods which were taken in Execution upon the Capias utlagatum It was also resolved in this Case That if the Sheriffe upon a Writ of Execution served doth deliver the mony or goods which are taken in Execution to the Plaintiffs Atturney it is as well as if he had delivered the same to the Plaintiff himself for the Receipt by his Atturney is in Law his own Receipt But if the Sheriff taketh goods in Execution if he keep them and do not deliver them to the paââ at whose suit they are taken in Execution the party may have a new Execution as it was in the principal Case because the other was not an Execution with Satisfaction Mich. 11. Jacobi in the Common Pleas. 312 CHAVVNER and BOVVES Case BOwes sold three Licences to sell Wine unto Chawner who Covenanted to give him ten pounds for them and Bowes Covenanted that the other should enjoy the Licences It was moved in this Case whether the one might have an Action of Covenant against the other in such Case And the opinion of Warburton and Nichols Justices was That if a Man Covenant to pay ten pound at a day certain That an action of Debt lyeth for the money and not an action of Covenant Barker Serjeant said he might have the one or the other But in the principall Case the said Justices delivered no opinion 313 Note That this Day Cooke Chief Justice of the Common Pleas was removed to the Kings Bench and made Lord Chief Justice of England And Sir Henry Hobart who was the Kings Aturney generall was the day following made Lord Chief Justice of the Court of Common Pleas. Sir Francis Bakon Knight who before was the Kings Solicitor was made Atturney Generall And Mr Henry Yelverton of Grays-Inn was made the Kings Solicitor and this was in October Term. Mich. 11 Jacobi 1613. Mich. 11. Jacobi In the Common Pleas. 314 THis Case was put by Mountague the Kings Serjeant unto the Lord Chief Justice Hobart when he took his place of Lord Chief Justice in the Common Pleas viz. Tenant in tail the Remainder in taile the Remainder in Fee Tenant in tail is attainted of Treason Offence is found The King by his Letters Patents granteth the lands to A who bargaineth and selleth the land by Deed unto B. B. suffers a common Recovery in which the Tenant in tail is vouched and afterwards thâ Deed is enrolled And the question was Whether it was a good Bar of the Remainder And the Lord Chief Justice Hobart was of opinion That it was no barre of the Remainder because before enrollment nothing passed but only by way of conclusion And the Bargainee was no Lawfull Tenant to the Precipe Mich. 11. Jacobi in the Common Pleas. 315 WHEELER's Case IT was moved for a Prohibition upon the Statute of 5. E. 6. for working upon Holy days and the Case was That a man was presented in the spirituall Court for working viz. carriage of Hay upon the feast day of Saint John the Baptist when the Minister preached and read divine service and it was holden by the whole Court of Common Pleas That the same was out of the Statute by the words of the Act it self because it was for necessity And the Book of 19 H. 6. was vouched That the Church hath authority to appoint Holy days and therefore if such days be broken in not keeping of them Holy that the Church may punish the breakers therof But yet the Court said That this day viz. the Feast day of Sr John the Baptist was a Holy day by Act of Parliament and therefore it doth belong unto the Judges of the Law whether the same be broken by doing of such work upon that day or not And a Prohibition was awarded Mich. 11 Jacobi in the Common Pleas. 316 REARSBY and CUFFER's Case IT was moved for a Prohibition to the Court of Requests because that a man sued there by English Bill for money which he had layd out for an Enfant within age for his Meat drink necessary apparel and set forth by his Bill that the Enfant being within age did promise him to pay the same And a Prohibition was awarded because as it was said he might have an action of Debt at the common Law upon the contract for the same because they were things for his necessary livelihood and maintenance And it was agreed by the Court That if an Infant be bounden in an Obligation for things necessary within age the same is not good but voidable Quaere for a difference is commonly taken When the Assumpsit is made within age and when he comes to full age For if he make a promise when he cometh of full age or enters into an Obligation for necessaries which he had when he was within age the Law is now taken to be that the same shall binde him But see 44. Eliz. Randals Case adjudged That an Obligation with a penaltie for money borrowed within age is absolutely void Mich. 11. Jacobi in the Common Pleas. 317 SMITH's Case SMith one of the Officers of the Court of Admiralty was committed by the Court of Common Pleas to the prison of
disseised and the Disseisor levieth a Fine with proclamations and five years passe and afterwards Tenant in tail dyeth there the issue in tail is barred for there after the Fine levied the Tenant in tail himself had right so as the issue in tail was not the first to whom the Right did accrue after the Fine levied C. 3. part 87. Com. 374. a. When Ralph Bigot made the Feoffment 6 H. 8. Francis Bigot had a Right by his own Feoffment 21 H. 8. his Right was extinguished The second Objection was upon the Form of pleading in a Formedon viz. Post cujus mortem discendere debet to him viz. the issue Then the Ancestor had such a Right which after his death might have discended to his issue Then that proveth that the Ancestor by his Feoffment hath not given away all the Right I answer The form is not Post cujus mortem but Per cujus mortem and the Post cujus mortem discendere debet is not traversable and therefore it is but matterof form and not of substance Old Entres 240. One dum non fuit compos mentis maketh a Feoffment he shall not avoid the Feoffment because that the Law doth not allow a man to stultifie himself C. 4. part 123. But his heir after his death may avoid the Feoffment of his Ancestor for de ipso discendit jus although the Father had not a Right in his life It was thirdly objected out of C. 4. part 166. b. where it is said That if an Ideot maketh a Feoffment the King shall avoid the same after Office found I answer That the Book it self doth cleer the objection For it is in regard of the Statute of Prerogativa Regis cap. 9. Ita quod nullatenus per eosdem fatuos alienentur c. and not in respect of any Right which the party hath who maketh the Feoffment By the Common Law Tenant in tail viz. He who had a Fee-simple conditional had not any right after his Feoffment Then the Act of West 2 cap. 1. makes such a Fee an Estate in tail and provides for the issue in tail for him in the Remaindor or in Reversion but not for the party who made the Feoffment or Grant for a Grant of Tenant in tail is not void as to himself Magdalen-Colledge Case A Lease by a Parson is good against himself but voidable against his Successor And so the same is no Exception Discendit jus post mortem c. The fourth Objection was That although Tenant in tail had made a Feoffment yet he remained Tenant to the Avowry of the Donor and therfore some right of the old estate tail did remain in him I answer 5 E. 4. 3 a. 48 E. 3. 8. b. 20 H. 6. 9. 14 H. 4. 38. b. C. 2. part 30. a. The matter of the Avowry doth not arise out of the Right or Interest which a man hath in the Land but out of the Privity As when the Tenant maketh a Feoffment he hath neither right nor interest in the Land yet the Lord is not compellable to avow upon the Alienee before notice In a Precipe quod reddat the Tenant alieneth yet he remaineth Tenant as to the Plaintiffe and yet he hath not either a Right or any Estate as to the Alienee The fifth Objection was upon the Statute of 1 R. 3. cap. 1. All Feoffments c. by Cestuy que use shall be effectual to him to whom it was made against the Feoffor and his heirs I answer The words of the Statute are to be considered All Feoffments c I desire to know how this affirmative Law doth take away the power of the Feoffees And the Feoffees are bound by the Feoffment of Cestuy que use and are seised to the use of such Alienees 27 H. 8. 23. b. by Fitzherbert If Cestuy que use enter and maketh a Feoffment with warrantie c. but there are not words that the old rights are given away The Feoffees to use before the Statute of 1 R. 3. c. 1. might only make Feoffments but after that Statute Cestuy que use might also make Feoffments of the Lands And so the Statute of 1 R. 3. did not take away the power of the Feoffees for they yet may make Feoffments but it did enlarge the power of Cestuy que use Com. 351 â52 Then the Question further riseth If Francis Bigot had any Right in the Tail which might be forfeited by the Statutes by 26 H. 8. and 31 H. 8. A particular Act made for the Attaindor of the said Francis Bigot From the time of West 2. cap. 1â untill the Statute of 26 H. 8. cap. 13. there were many Bills preferred in Parliament to make Lands which were entailed to be forfeited for high Treason but as long as such Bils were unmasked they were still rejected But Anno 26 H. 8. then at a Parliament a Bill was preferred That all Inheritances might be forfeited for Treason so that as under a vail lands in tail were forfeited for Treason which was accepted of The Statutes of 26 H. 8. 31 H. 8. are not to be taken or extended beyond the words of the Statute which are That every Offender hereafter lawfully convict of any manner of high Treason by Presentment confession Verdict or Process of Outlawry shall forfeit c. It doth not appear that Francis Bigot was attainted in any of these wayes For the Inquisition is That he was Indicted and convicted but Non sequitur that he was convict by any of those wayes viz. Verdict Confession or Outlawry And one may be attainted by other means 4 E. 4. in Placito Parliamenti Mortimer was attainted by Parliament 1 R. 2. Alice Percy was attainted by Judgment of the Lords and Peers of the House of Lords in Parliament It was objected That after an Indictment Verdict ought to follow I answer Non sequitur for it may be without Verdict viz. by standing mute And then the Statute of 26 H. 8. doth not extend unto it C. 3. part 10 11. Admit it were an Attaindor within the Statute of 2â H. 8. yet Francis Bigot had not such lands which might be forfeited C. 3. part 10. For this Statute doth not extend to Conditions or Rights And C. 7. part 34. this Act of 26 H. 8. doth not extend to Rights and Titles And it is cleer that Francis Bigot had not any Estate within the letter of the Act. It was objected That if we have not set forth the full Title of the King in the Monstrans de Droit then is the Monstrans de Droit naught and void I answer 9 E. 4. 51. 16 E. 4. 6. I find no book that in a Monstrans de Droit we should be put to observe that Rule For a Petition were a going about The Statute of 2 E. 6. cap. 6. gives the Monstrans de Droit 16 E. 4. 7. If a Petition be void for want of instructing the King and if all his Title be not set forth in it
then the tender is good But if he be not there but at another place the notice is sufficient Dodderidge The Law requires certainty in a Declaration and the matter cannot be taken by intendment so we ought to have a certainty set forth otherwise no certain Judgment can be given It was adjourned for Dodderidge and Haughton Justices were against Ley Chief Justice But as I have heard the Case was afterwards adjudged for the Plaintiffe There quaere the Record of the Judgment Trin. 21 Iacobi in the Kings Bench. 425. A Man made a Lease for life and covenanted for him and his heirs That he would save the Lessee harmless from any claiming by from or under him The Lessor dyed and his wife brought a Writ of Dower against the Lessee and recovered and the Lessee brought an Action of Covenant against the heir And it was adjudged against the heir because the wife claimed under her husband who was the Lessor But if the woman had been mother of the Lessor who demanded Dower the Action would not have layen against the heir because she did not claim by from or under the Lessor And so it was adjudged v. 11. H. 7. 7. b. Trin. 21 Iacobi in the Kings Bench. 426. SNELL And BENNET'S Case A Parson did contract with A. his Executors and Assigns That for ten shillings paid to him every year by A. his Executors and Assigns that he his Executors or Assigns should be quit from the payment of Tythes for such Lands during his life viz. the life of the Parson A. paid unto the Parson ten shillings which the Parson accepted of And made B. an Enfant his Executor and dyed The mother of the Enfant took Letters of Administration durante minori aetate of the Enfant and made a Lease at Will of the Lands The Parson libelled in the Ecclesiastical Court for Tythes of the same Lands against the Tenant at Will who thereupon moved for a Prohibition Dodderidge During the life of the Parson the Contract is a foot but the Assignee cannot sue the Parson upon this Contract yet he may have a Prohibition to stay the suit in the Ecclesiastical Court and put the Parson to his right remedy and that is to sue here This agreement is not by Deed and so no Lease of the Tythes The Parson shall have his remedy against the Executor for the ten shillings but not against the Tenant at Will and the Executor hath his remedy against the Tenant at Will Crook 21 H. 6. A Lease of Tythes without Deed is good for one but not for more years v. 16 H. 7. And afterwards a Prohibition was granted Trin. 16 Jacobi in the Kings Bench. 427. PHILPOT and FEILDER'S Case THe Parties are at issue in the Chancery and a Venire facias is awarded out of the Chancery to try the issue and the Venire facias was Quod venire facias coram c. duodecim liberos legales homines de vicineto de c. quorum quilibet habeat quatuor lib. terrae tenementorum vel reddituum per annum ad minus per quos rei veritas melius sciri poterit c. And it was moved in arrest of Judgment That the Venire facias is not well awarded for it ought to be Quorum quilibet habeat quadraginta solidos terrae tentorum vel reddit per an ad minus according to the Statute of 35 H. 8. cap. 6. which appoints that every one of the Jurors ought by Law to expend forty shillings per annum of Freehold and it ought not to be quatuor libras terrae c. according to the Statute of 27 Eliz cap. 6. which Statute of Elizabeth doth not speak of the Chancery but only of the Kings Bench Common-Pleas and the Exchequer or before Justices of Assise Before the Statute of 35 H. 8. no certain Land of Jurors was named in the Venire facias but since the Statute of 35 H. 8. it was quadragint solidos untill the said Statute of 27 Eliz. and now it is quatuor libras in the Kings Bench Common-Pleas and Exchequer It was adjourned At another day the Case was moved again That the Venire facias ought to be 40 solidos c. according to the Statute of 35 H. 8. cap. 6. And 10 H. 7. 9. 15 were vouched That if a Statute appoint that the King shall do an act in this form the King ought to do it in the same form and manner So if a Letter of Attorney be to make a Bill in English and the same is made in Latine it is not good although it be the same in form and matter Cook lib Entries 578. Waldrons Case is That in the Chancery the Venire facias was but 40 but that Case was between 35 H. 8. and 27 Eliz. cap 6. Dodderidge and Haughton Justices It is a plain case For the Venire facias ought to be according to 35 H. 8. cap. 6. because the Statute of 27 Eliz. cap. 6. speaks nothing of the Chancery Quod nota Trin. 21 Iacobi in the Kings Bench. 428. HEWET and BYE'S Case IN an Ejectione Firme of a house in Winchester the Ejectment was laid to be of a house which was in australi parte vici Anglice the High-street Ley Chief Justice If it had been ex australi parte vici then the South part had been but a Boundary but here it is well laid Then it was moved That the Venire facias is Duodecim liberos legales homines de Winton and doth not say of any Parish in Winton But notwithstanding it was holden good For Dodderidge Justice said That it is not like unto Arundels Case C. 6. part 14. For there the Offence was laid to be done in paroechiae Sanctae Margaret de Westminster therefore the visne ought to be of the Parish but in this case it being laid generally in Winton it is sufficient that the visne come out of Winton Judgment was given for the Plaintiffe Trin. 21 Iacobi in the Kings Bench. 429 WATERER and MOUNTAGUE'S Case A Man made a Lease for six years and the Lessor covenanted That if he were disposed to lease the said lands after the expiration of the said term of six years that the Lessee should have the refusal of it The Lessee within the six years made a Lease thereof to J. S. for 21 years Dodderidge Haughton and Ley Chief Justice The Covenant is not broken because it is out of the words of the Covenant But Dodderidge said Temp. E. 1. Covenant 29. The Lessee covenanted to leave the houses trees and woods at the end of the term in as good plight as he found them and afterwards the Lessee cut down a tree that in that case the Covenant was broken and the Lessor shall not stay untill the end of the term to bring his action of Covenant because it is apparant that the tree cannot grow again and be in as good plight as it was when he took the Lease Trin. 21
for years rendring Rent by an Enfant and afterwards at his full age he accepts the Rent of the particular Tenant it is a good comfirmation of the estate of him in the remainder Litt. 547. If he at full age confirm it is good which could not be if the Lease were void and yet in that Case it doth not appear that there was any Rent reserved The Enfant being a Copyholder makes no difference in the Case And in Murrels Case C. 4. part It is said That if a Copyholder make a Lease not warrantable by the Custome it is a forfeiture which proves it is a good Lease otherwise it could not be a forfeiture Hill 37 Eliz. in the Kings Bench Rot. 99. East and Hardings Case A Copyholder makes a Lease for three years by word to begin at Michaelmas next ensuing it is a forfeiture of the Copyhold and a good lease betwixt the parties Hill 18 Jacobi Haddon and Arrowsmiths Case One licensed his Copyholder for life to make a Lease for 20. if he should so long live and he made a lease for 20 years and left out the words if he should so long live yet because he was a Copyholder for life and so the lease did determine by his death and so he did no more then by Law he might do it was adjudged a good Lease and no forfeiture otherwise if he had been a Copyholder in Fee All Conditions in Fact shall bind an Enfant but not Conditions in Law C. 8. part 44. Whittinghams Case An Enfant Tenant for life or years makes a Feoffment in Fee it is no forfeture For if the Lessor entreth the Enfant may enter upon him again yet it is a good Feoffment but he shall avoid it by Enfancy but if it be by matter of Record then it is otherwise For if an Enfant be Lessee for life and levieth a Fine it is a forfeiture and in that case if the Lessor enter for the forfeiture the Enfant shall not enter again The same Law if an Enfant committeth Waste which is against a Statute it is a forfeiture and if the Lessor recovereth the place wasted the Enfant shall not enter again 9 H. 7 24. A woman an Enfant who hath right to enter into lands taketh a husband and a discent is cast yet she shall avoid the discent after the death of her husband The Court said That if in the Case at Barr the Enfant had been Tenant in Fee at the Common Law and made a lease without Deed and had accepted the Rent at his full age that the same had been good for that there he had a recompence but being a Copyholder it is a question Jones Justice It was adjudged in the Common Pleas in Peters Case That if a Copyholder without licence maketh a Lease not warranted by the Custome That such Lessee should maintain an Ejectione firme The Councel against the Enfant in the Case at Barr said That the Enfant made the Lease as Tenant by the Common-Law for that he made it by Conveyance of the Common-Law And so the Lease was voidable and not void and then the acceptance of the Rent had made the Lease to be good It was adjourned to another day Hill 2. Caroli Rot. 389 in the Kings Bench. 457. GEORGE BUSHER against MURRAY Earl TILLIBARN A Scire facias was brought dated 28 Junii retornable in Mich. Term 2 Car. Regis why Execution should not be awarded against the Defendant upon a Iudgment had against him in this Court The Defendant pleaded That King Charles 7 Octob. in the second year of his Reign did take him into his protection for a year and did grant unto him that during that time he should be free from all manner of Plaints but Dower Quare Impedit and Placit coram Justiciariis Itinerantibus It was said that this Protection was not warrantable by Law for three causes 1. Because it is after the purchase of the Scire facias and before the Retorn 10 H. 6. 3. 11 H. 4. 7. A Protection depending the Suit is not allowable although it make mention that the party is to go a voyage with the Kings Son 2. Because he doth not specifie any particular cause why the Protection was granted unto him All our books do express a cause viz. Quia moratur c. quia profecturus c. Register 22 23. there three Protections are Quia incarceratus 39 H. 6. 38 39 40. per Curiam The Protection ought to express a special cause otherwise it is not good Fitz. 28. a. b. the cause is expressed 1. R. 2. cap. 16. The particular cause ought to be in the Protection A Protection being general the party hath no remedy against him to traverse it or to procure it to be repealed 3. This Court is greater then a Iustice in Eyre and he is excepted in placitis itinerantibus That Court was of opinion that there was no colour for allowing of the Protection A Safe-conduct will only keep the party safe from harm but will not protect him from Actions Mich. 2 Caroli Intratur Pasch 18. Jur. Rot. 298. in the Common Pleas. 458. ROYDEN and MOULSTER's Case IN Trespass for entring into his Close called Dipson in Suffolk upon Not guilty pleaded the Jury gave a special verdict That the said Close was parcel of the Mannor of Movedon and demisable by Copy of Court-Roll and that the same was granted to G. Starling in Fee by Copy of Court-Roll who had issue two sons John and Henry And that 35 Eliz. George Starling did surrender the same to the use of his Will and thereby demised the same to John and the heirs males of his body with divers Remainders over and dyed seised And that the Surrender was presented according to the Custom and that John was admitted to have to him his heirs And that the said John had issue 3 sons Harry George and Nicholas And that the said John 43 Eliz. did surrender to the use of his Will and thereby devised the same to Katherine his wife and dyed and that the said Surrender 9 Martii 4t Eliz. was presented and the said Katherine was admitted Harry George and Nicholas dyed without issue They further found That the Custom of the Mannor is That the youngest brother is to have the Copyhold by discent And also That no Copyholder by the Custome could make any Estate in feodo and that the said Katherine took to her husband Francis Robinson who 1 Sept 17 Iacobi leased the same to Royden the Plaintiffe for one year who entred and was thereof possessed untill Moulster the Defendant by the commandment of c. did out him c. In which case the only Question was Whether a Copyhold be within the Statute of West 2. so as an estate thereof so limited should be a Fee tail or a Fee conditional And by the opinion of the Justices of the Common-Pleas it was adjudged That a Copyhold could not be entituled within the
The want of a letter out of a word is out of the Statutes C. 8. part You should have alleadged some place The Statute of 21 Jacobi is not of any Venire facias which is misawarded generally but the Statute helpeth when there are two places and the visne ought to come from both places and the visne comes but from one place and when there is but one place and the visne comes from two places If Enfancie be to be tryed sc If he were at such a time within age it ought to be tryed by the Country This matter is collateral to the first Record and it is a new Record sc upon Error The whole Court was of opinion that it was out of the Statute and a Repleader was granted Whitlock Justice There is no Trial at all for there is no Venire facias at all Dodderidge Justice If the Defendant in Error plead an ill plea he shall replead But if in this Action he had alleadged a place of his Enfancie sc at Dale and the Venire facias had been of Sale there it had been good trial and there he should not replead for that he hath pleaded well but there he shall have a Venire facias de novo Pasch 3 Caroli in the Kings Bench. 470. DAY 's Case DAY was Indicted for erecting of a Cottage It was moved that the Indictment was insufficient for that the words of the Statute of 31 Eliz. cap. 7 are Shall willingly uphold maintain and continue And the Indictment is only That he continued and so wants the words voluntarily upheld according to the Statute 2. It did not appear in the Indictment that it was newly erected for it is only that he continued but not that he erected The Indictment was quashed because being a penal Law it was not pursued Pasch 3 Caroli in the Kings Bench. 471. MAN's Case MAN was Indicted That he fuit adhââc est a common Barrettor and no place is expressed where he was a Barrettor so as no trial can be Dodderidge Justice If he be a Barrettor in one place he is a Barrettor in all places The Indictment was Per quod he did stir up contentions Jurgia And no place alleadged where he did stir up Jurgia contentions And it was said that in that case the place was very material And so the Indictment was quashed for want of setting forth the place where he did stir up many Contentions Jurgia c. Pasch 3 Caroli in the Kings Bench. 472. GREEN and MOODY'S Case AN Action of Debt was brought for Rent and it was found for the Plaintiff Thyn Serjeant moved in arrest of Judgment and set forth the Case to be That a Lease was made for years to begin at Michaâlmaâ after And the Plaintiff in the Action of Debt for the Rent did declare Virtuâe cujus the Lessee did enter and did not shew what day according to Cliffords Case 7 E. 6. Dyer 89. But the Court said It is said in this Case Virtute cujus dimissionis he did enter and was possessed and that must be intended at Michaelmas Alexander and Dyer's Case 33 Eliz. was resolved accordingly And Cliffords Case Dyer 89. is not virtute cujus dimissionis And the Court held a difference betwixt Debt and Ejectione firme Cliffords case was an Ejectione firme but here it is Debt Jones Justice If he did enter before Michaelmas yet Debt will lie for the Rent upon the privity of contract for the Lessee cannot destroy the contract unless he make a Feoffment It was adjudged for the Plaintiff Quaere If when the Lessor in the case which Jones put hath brought his action and recovered when the Lessee hath entred before the day If the Lessor shall put him out as a Disseisor by reason of the Recovery in the action of Debt in which he hath admitted him to be Lessee for years Or if the Lessor after he hath recovered in Debt dyeth whether his heir shall be estopped by the Record to say otherwise then that he is in by the Lease Or whether the Recovery in Debt hath purged the wrong Like unto the Case 14 H. 8. 12. by Carret If one entreth into my lands and claims 20 years therein and I suffer him to continue there and accept of the Rent and afterwards he committeth Waste I shall maintain an action of Waste and declare upon the special matter If one entreth into my Land claiming a Lease for years per Curiam he is a Disseisor and he cannot qualifie his own wrong Dyer 134. Traps case But Sir Henry Yelverton said That I may admit him to be Tenant for years if I accept of the Rent or bring Waste as Carret said 14 H. 4. But he hath not but for years in respect of his claim But I am concluded by acceptance of the Rent or by bringing of the action of Waste So here by the bringing of the action of Debt the Lessor is concluded But Quaere if it shall bind his heir It was conceived it shall because it is by Record the strongest conclusion that is Pasch 3 Caroli in the Kings Bench. 473. SMITH's Case A Lease for years was made of Lands in Middlesex and the Lessor brought Debt in London against the Assignee The opinion of the whole Court was that it was not well brought but the Action ought to have been brought in Midd. Jones Justice Debt for Rent upon the privity of Contract may be brought in another County but if it be brought upon the privity of Estate as by the Grantee of the Reversion or against the Assignee of the Lessee then it ought to be brought in the County where the Land is Quod nota Pasch 3 Caroli in the Kings Bench. 474. CREMER and TOOKLEY's Case AN action of Debt was brought for suing in the Court of Admiralty against the Statutes of 13 R. 2. cap. 5. 15 R. 2. cap. 3. whereby it is enacted That of manner of Contracts Pleas and Complaints arising within the body of the Counties as well by land as by water the Admiral shall in no wise have conusans And the Statute gives damages part to the party and part to the King And the Plaintiff in the action of Debt did declare That the Defendant Tookley did implead Cremer the Plaintiff in the Court of Admiralty And in his Declaration set forth That one Mullâbeck was Master of a Ship c. and that the Contract was made in London And that Tookley the Defendant did force the Plaintiff to appear and prosecuted the suit upon the Contract in the Admiral Court And by special Verdict it was found That a Charter-party was made betwixt Mullibeck and Cremer at Dunkirk And that Tookley did prosecute Cremer in the Admiral Court by vertue of a Letter of Attorney and so that he as Attorney to Mullibeck did prosecute the suit there The Case was argued by Andrewes for the Plaintiff There are two points The first upon the Jurisdiction of the Admiralty the Contract
by vertue of the Act of 31 H. 8. A Feoffment in Fee is made unto the use of A. in Tail he hath the Use by the Statute of West â cap. 1. Now when the Statute of 27 H. 8. cap. 10. came he hath the possession by force of that Act viz. of 27 H. 8. and not by force of the Statute of West 2. If the King be not in by the Statute of 3 H. 8. then he shall not have every of the Priviledges which the Act of 31 H. 8. giveth C. 2. part The Bishop of Canterburies Case The Colledg of Maidstone was Religious but not Ecclesiastical and it was adjudged that the Purchasors of the Lands of the said Colledg were not discharged from the payment of Tythes because the Colledg was not Ecclesiastical but Religious only and Religious and not Ecclesiastical came not to the King by the Statute of 31 H. 8. 18 Jacobi in the Common Pleas Wrights Case The Priory of Hatfield being of small value viz. not having Lands of the value of 200l per annum was dissolved by the Statute of 27 H. 8. and the Lands were not Tythe-free in the hands of the Purchasors because the Priory came not to the King by the Statute of 31 H. 8. and yet they were Tythe-free in the hands of the Prior himself The second point upon the Statute of 32 H. 8. The words are That the King shall have all Rights Interests and Priviledg as it was in the hands of the Abbots Priors c. It is objected To be free from payment of Tythes is a Priviledg I answer That neither Right Interest nor Priviledg do free him from the payment of Tythes First there is no discharge of Tythes by the word Interest in the Statute for that is plain Then the question is if the word Priveledg will discharge the Lands from the payment of Tythes and if that word would have sufficed to have discharged the Tythe what need was there of the special Clause to discharge Tythes The Statute of 27 H. 8. dissolves Chaunteries and there it is said That the King shall have and enjoy c. and there also all Priviledges are given then the Statute of 1 E. 6. came and gave all Chauntries to the King and there the word Priviledg was not in the Act yet by those words the Lands were not discharged from the payment of Tythes The Statute of 31 H. 8. is Conditions and Rights of Entrie yet there was another Act made to give Conditions to the King But admit that the King himself be discharged yet his Patentees are not discharged The Priviledg was personal and personal Priviledges are not transferrable 35 H. 6. 56. A Statute dissolveâ the Templers and gives the Lands to the Hospitalers to hold by the same service as the Templers did which was Frankalmoign yet the Grantee held by Fealty for that Frankalmoign is a personal priviledg and cannot be transferred by general words The King it's true shall have the priviledg for he is a priviledged person for of his goods he shall not pay Tythes if he do not grant them over and the Grants prove That unless he had granted them he should have paid no Tythes The Statute of 31 H. 8. sayes All Conditions which the Abbots c. have yet untill the Statute of 32 H 8. no Purchasor could take advantage of a Condition Hill 44. Eliz. in the Common Pleas Rot. 1994. Spurlings Case The Purchasors of Lands of the Hospital of St Johns of Jerusalem were not priviledged from the payment of Tythes Pasch 8. Jacobi in the Common Pleas Vrry and Bowyers Case In a Prohibition it was holden by Cook and Nichols That the Purchasor of St Johns of Jerusalem should pay Tythes but Winch and Warburton cont 18 Jacobi in the Common Pleas All the Judges but Warburton held that the Purchasor should pay Tythes 10 Eliz. Dyer There it doth not appear whether they were of the Order of Templers or Cistertians The third point in this Case The Defendant doth make no title to the Discharge for he hath not averred that the Priory were Ecclesiastical persons If a man plead that A. is professed the Court cannot take notice of it that he is a dead person in Law But if he saith that he was of such an Order he ought to set forth of what Rule the Order is Secondly The manner of their discharge was when they did Till and sow their Lands propriis sumptibus manibus If they grub up Roots and make the Lands fit for Tillage but if their Tenants sow the Lands they shall pay Tythes for they had the priviledg in respect they should not be idle unless all these do concur they shall pay Tythes viz. plough sow reap and carrie the Corn. These Priviledges are to be taken stritly because they are to defeat the Church of her endowment and therefore in this Case the Defendant doth not well entitle himself to the Discharge unless he do shew that he did occupie the Land for one whole year before and that he did plow sow and âeap the corn But he ought for to have shewed that such time he plââed the Land such a time he sowed it and such a time he reaped the ãâã Otherwise the Court will intend that another man did plow and sow the land and that he only reaped it For if Lessee of the Hospital doth plow the Land and sow it and afterwards doth surrender to the Prior of the Hospital who reaps the same he shall pay Tythe of the same for the Priviledge was granted unto them who were Labourers And the Defendant perhaps might have the Lands to halfs that is to say to have half the Corn growing upon the Lands The pleading is not good When you plead two Bars each Bar must stand of it self and the surplusage of the one Bar shall not help the defect of the other Bar. The word Priviledge in the Act of 32 H. 8. doth not extend to Tythes If it doth yet the Purchasor shall not have the Priviledge Dodderidge Justice The Statute of 32 H. 8. was made because that those of S. Johns of Jerusalem said that they could not surrender their Hospital because they had a Supreme Head over them viz. their great Master the Pope Crawley Serjeant argued for Weston the Defendant The pleading was over-ruled to be good the last day the Case was argued We have well entitled our selves to the Discharge For we have pleaded that we had the occupation of the Lands for one whole year and that Weston the Defendant plowed sowed and reaped the Corn upon the lands at his own costs and charges And the Plaintiff hath not shewed that any other plowed sowed or reaped the same Our title is by prescription which is confessed This Society was erected in the time of King Henry the 1. and it continued untill 32 H. 8. 44 Eliz. in Spurlings case there were two reasons of the Judgment 1. There the Statute of 31 H. 8.
reasonable Herbage Here the Grant is not De omnibus grossis arboribus bonis catellis Felonum and of the Goods of Felons themselves and in the former Patent these were granted and so the Grant is for the Kings benefit and to the prejudice of the Patentee Also this Patent is ad proficuum Domini Regis For here is a Rent reserved and here is a Proviso for the committing of Waste in the premisses which were not in the first Letters Patents and in these Letters Patents there are divers Covenants which were not in the former Patents and so it is in forma sequente And so the Lease of Philip and Mary is good The King seised of a Manor to which he hath a Park doth grant the Stewardship of the Manor and the Custodie of the said Park with reasonable Herbage Afterwards in the same Letters Patents hee grants the said Manor of O. and all the Lands in O. excepting grosse trees in the Park If this Grant be not good for the Manor it is not good for the Park that was the Objection It is good for the Manor and also for the Park It was objected That the King grants the custody of the Park and so not the Park it selfe for how can the King grant the custody of the Park if he grant the Park it selfe it is dangerous that upon an implication in one part of a Patent the expresse words which follow should be made void the subsequent words in this Case are The King grants the Manor and all the Lands to the same belonging now the Park doth belong to it and the King excepts only the Deer C. 10 part 64. The King at this day grants a Manor unto a man as entirely as such a one held the same before it came into his hands c. the Advowson doth passe without words of grant of the Advowson for the Kings meaning is That the Advowson shall passe The meaning of the King is manifest in our Case C. 3. Part 31 32. Carr's Case There the Rent was extinct betwixt the Parties yet for the benefit of the King for his tenure it hath continuance for a thing may be extinct as to one purpose and in esse as to another purpose 38. Ass 16. a Rent extinct yet Mortmain Dyer 58 59. The Exception ought to be of the thing demised In our Case the Park doth passe but the King shall have the liberties in it and so here the Park shall passe and the Exception is of the liberties Com. 370. the Exception ought to be of that which is contained in the former words in the former Patents the Offices were first granted and in the same Letters Patents the Manor was afterwards granted But now King James grants the Manor first and then the Offices Construction of Statutes ought to be secuncundùm intentionem of the makers of them and construction of Patents secundùm intentionem Domini Regis C. 8. part 58. You ought to make such a construction as to uphold the Letters Patents C. 8. part 56. Auditor Kings Case There the Letters Patents were construed secundùm intentionem Domini Regis and adjudged good But to make void the Patent they shall not be construed secundùm intentionem but to make a Patent good they shall be construed secundùm intentionem Domini Regis The Case was adjourned till Michaelmas Terme next Note I have heard Sir Henry Yelverton say That it was the opinion of the Judges in this Case That he had but the custody of the Park and not the interest of the Park for that by the acceptance of the custody of the Park when he had a Lease of the Park before it was a surrender of his Lease Trinit 21. Jacobi in the Kings Bench. 492 SHORTRIDGE and HILL's Case SHortridge brought an Action upon the Case against Hill for ravishing of his Ward and the Writ was contra pacem without the words Vi armis Lib. Dent. 366. where three Presidents are of Actions upon the Case without Vi armis An Action upon the case for doing of any thing against a Statute must be contra pacem Ley Chief Justice Recovery in this Action may be pleaded in Barre in a Writ of Ravishment of Ward brought Dodderidge Justice The Action of Trespasse at the common Law is only for the taking away of the Ward and here he hath elected his Action at the common Law and then he shall not have an Action upon the Statute viz. a Ravishment of Ward but here the Action upon the Case is brought for the taking and detaining of the Ward so as he cannot preferr him in marriage and upon this speciall matter the Action upon the Case lieth without the words Vi armis A Writ of Ravishment of Ward ought to be brought in the Common Pleas but yet you may bring a Writ of Ravishment of Ward in this Court if the Defendant be in the custody of the Marshal of the Marshalsey for in such special Case it shall be brought in this Court if there be an extraordinary matter besides the Trespass then an Action upon the Case lieth as when A. contracts with B. to make an estate unto B. of Bl. Acre at Michaelmas if C. enter into Bl. Acre A. may have an Action upon the Case against C. for the speciall damage which may happen to him by reason that he is not able to perform that contract by reason of the entry of C. and he shall declare contra pacem but not Vi armis Trinit 21. Jacobi in the King 's Bench. 493 BAKER and BLAKAMORE's Case IN Trespass the Defendant pleaded That J. S. being seised in Fee gave the Lands unto Baker and the Heirs of his body and conveyed the Lands by descent to four Daughters and Blakamore the Defendant as servant to one of the Daughters did justifie The Plaintiff did reply That the said J. S. was seised in Fee and gave the same to Baker and the Heirs Males of his Body and conveyed the Land by descent to himself as Heir Male absque hoc that J. S. was seised in Fee Henden Serjeant did demur in Law upon the Replication and took Exception to the Traverse for that here he traverseth the Seisin of J. S. whereas he ought to have traversed the gift in tail made by J. S. for the being seised is but an inducement not traverseable and therefore he ought to have traversed the gift in taile for then he had traversed the seisin for he could not give the Lands in tail if that he were not seised thereof in Fee L. 5. E. 4 9. there in Formedon the Tenant would have traversed the Seisin of the Donor but the book is ruled that the Traverse ought to be of the gift in tail and that includes the Seisin Bridgment for the Plaintiffe and said That the Serjeant is of opinion contrary to the Books when he saith positively that you ought to traverse the gift in tail and not the seisin of the Donor
of his eldest son in tail and afterwards he married a wife and died that the wife should not be endowed for when he had limited the use to himself for his life he could not limit arâ Remainder over And Edwards Case adjudged in the Court of Wards which was That there was Tenant for life the Remainder in tail he in the Remainder granted his Remainder to I. S. and his heirs and afterwards Tenant for life dyed and then the grantee dyed his heirs within age it was adjudged that the heir of the garntee should not be in ward because the Tenant in tail could not by his Grant grant a greater estate then for his own life But he said That in the principall Case it appeareth That the Tenant in tail in Remainder hath particularly recited his estate And where it appeareth in the Conveyance it self that he hath but an estate in tail a greater estate shall not passe As if Tenant for life granteth a Rent to one and his heirs the same at the first sight seems to be a good Rent in Fee but when it appeareth in the Conveyance that the grantor was but Tenant for life there upon the Construction of the Deed it self it cannot be intended that he granted a Fee but that an estate for life passed only in the Rent Secondly he argued That although the estate in tail in the principall case was an abeyance Yet a Common Recovery would barr such estate tail in abeyance And therewith agreeth C. 2. part Sr Hugh Cholmleys Case 3. He said That the estate was out of the King and vested in the party without any Offence found as 49. E. 3. Isabell Goodcheaps case A man devised houses in London holden of the King in tail and if the Donee dyed without Issue that the Lands should be sold by his Executors The devisee died without Issue The bargain and sale of the Lands by the Executor doth divert the estate out of the King without Petition or Monstrans de Droit So If there be Tenant in tail the Remainder in tail and Tenant in tail ân Remainder levieth a fine of his Remainder to the King and afterwards dyeth without Issue the Kings estate is determined and there needs no Petition or Monstrans de Droit 4. He said That in the principall case nothing was in the King because it doth not appeare that there was any seisure or Offence found to entitle the King And the Tenant in tail in the Remainder died in the life of King James and then if the Kings estate were then determined as before by the death of the Tenant in taile the King which now is never had any title And hee said that he needed not to shew a greater title then he had And hee took a difference when Tenant in taile doth onely defend or make defence and when he makes title to Lands in the one Case he ought for to shew That the Tenant in taile died without issue and in the other Case not And therefore in the principall case he demanded Judgment for the Defendant The Case was adjourned to another day Mich. 4. Caroli in the Star-Chamber 511 TAILOR and TOWLIN's Case A Bill was preferred against the Defendant for a Conspiracy to Indict the plaintiff of a Rape And the Plaintiff aleadged in his Bill That an Indictment was preferred by the Defendant against the Plaintiff before the Justices of Assise and Nisi prius in the County of Suffolk And did not lay it in his Bill that the Indictment was preferred before the Justices of Oyer and Terminer and Gaole delivery and the same was holden by the Court to be a good Exception to the Bill for that the Justices of Assise and Nisi prius have not power to take Indictments But afterwards upon veiw of the Bill because the Conspiracy was the principall thing tryable and examinable in this Court and that was well layd in the Bill the Bill was retayned and the Court proceded to Sentence And in this Case Richardson Justice said That in Conspiracy the matter must bee layed to be falsè et malitiosè and if it be layed for a Rape It must be layd that there was recens persecutio of it otherwise it will argue a Consent And therefore because the Defendant did not preferre an Indictment of Rape in convenient time after the Rape supposed to be done but concealed the same for half a years time and then would have preferred a Bill of Indictment against the plaintiff for the same Rape he held that the Indictment was false and malitious And Hyde Chief Justice said That upon probable proof a man might accuse another before any Justice of Peace of an Offence and although his accusation be false yet the Accuser shall not be punished for it But where the Accusation is malitious and false it is otherwise and for such Accusation he shall be punished in this Court Trinit 8. Caroli in the King Bench. 513 JONES and BALLARD's Case AN Action upon the Case was brought for these words viz These Jones are proper Witnesses they will sweare any thing They care not what they say They have already forsworn themselves in the Chancery and the Lord keeper Committed them for it Jermyn took Exceptions because it was not said to be in the Court of Chancery nor that it was in any Deposition there taken upon Oath But it was adjudged per Curiam That the Action would lie and Jones Justice said that the Addition in the Chauncery was as much as if he had said he was perjured there And Hâmsies case was vouâhed by him Where one said of a Witness presently after a Tryall at the Guild Hall in London You have now forsworn your self That it was adjudged that the words were actionable Trinit 8. Caroli in the Kings Bench. 513. SYMME's and SMITH's Case A Woman being entituled to copyhold Lands of the Manor of D did covenant upon reasonable request to be made unto her to surrender the Copy-hold Land according to the Custome of the Manor And it was found That the Custome of the Manor is That a surrender may be made either in person or by Letter of Atturney and that the plaintiff did request the woman to make the surrender by a Letter of Atturney which shee refused to do And whether shee ought to surrender presently or might first advise with her Councell was the Question It was argued for the plaintiff that shee ought to do it presently And Munser's Case C. 2. part and 16. Eliz. Dyer 337. Sir Anthonie Cooks Case were vouched that she was to do it at her perill And the Election in this Case was given to the Covenantee and hee might require it to be done either in Court in person or by Letter of Atturney And C. 2. part Sir Rowland Heywards Case and C. 5. part Hallings Case was vouched to that purpose Rolls contrary for the Defendant And he said That the woman was to have convenient time to do it and
of the Justices was That the Fee was executed for a moitie Manwood If the Land be to one for life the Remainder for yeers the Remainder to the first Tenant for life in Fee there the Fee is executed so as if he lose by default he shall have a Writ of Right and not Quod ei deforceat for the term shall be no impediment that the Fee shall not be executed As a man may make a lease to begin after his death it is good and the Lessor hath Fee in possession and his wife shall be endowed after the Lease And I conceive in the principall case That the term shall not be extinct for that it is not a term but interesse termini which cannot be granted nor surrendred Mounson If he had had the term in his own right then by the purchase of the Fee the Term should be extinct But here he hath it in the right of another as Administrator Dyer If an Executor hath a term and purchaseth the Fee the term is determined So if a woman hath a term and takes an husband who purchaseth the Fee the term is extinct Manwood The Law may be so in such case because the Husband hath done an act which destroyes the term viz. the purchase But if the woman had entermarried with him in the Reversion there the term should not be extinguished for the Husband hath not done any act to destroy the term But the marriage is the act of Law Dyer That difference hath some colour But I conceive in the first case That they are Tenants in common of the Fee Manwood The Case is a good point in law But I conceive the opinion of Manwood was That if a Lease for yeares were to begin after the death surrender forfeiture or determination of the first lease for yeares that it shall not begin in that part for then perhaps the term in that part shall be ended before the other should begin Pasc 20. Eliz. in the Common Pleas. 3. A Man seised of Copyhold land descendable to the youngest Son by Custome and of other Lands descendable to the eldest Son by the common Law leaseth both for yeers The Lessee covenanteth That if the Lessor his wife and his heirs will have back the land That then upon a yeers warning given by the Lessor his wife or his heirs that the Lease shall be void The Lessor dieth the Reversion of the customary Land descends to the younger son and the other to the eldest who granteth it to the younger and he gives a yeers warning according to the Covenant Fenner The interest of the term is not determined because a speciall heir as the youngest son is is not comprehended under the word Heir but the heir at common Law is the person who is to give the warning to avoid the estate by the meaning of the Covenant But Manwood and Mounson Justices were cleer of opinion That the interest of the term for a moity is avoyded for the Condition although it be an entire thing by the Descent which is the act of Law is divided and apportioned and the warning of any of them shall defeat the estate for a moity because to him the moity of the Condition doth belong But for the other moity he shall not take advantage by the warning because that the warning is by the words of the Condition appointed to be done by the Lessor his wife or his heirs And in that clause of the Deed the Assignee is not contained And they agreed That if a Feoffment of lands in Borough-English be made upon condition That the heir at common Law shall take advantage of it And Manwood said that hee would put another question Whether the younger son should enter upon him or not But all Actions in right of the Land the younger son should have as a Writ of Error to reverse a Judgment Attaint and the like quod nota Pasc 22. Eliz. in the Common Pleas. 4 IT was holden by Meade and Windham Justices of the Common Pleas That a Parsonage may be a Mannor As if before the Statute of Quia emptores terrarum the Parson with the Patron and Ordinary grant parcel of the Glebe to divers persons to hold of the Parson by divers Services the same makes the Parsonage a Manor Also they held That a Rent-Charge by prescription might be parcel of a Manor and shall passe without the words cum pertinentiis As if two Coparceners be of a Manor and other Lands and they make partition by which the eldest sister hath the Manor and the other hath the other Lands and she who hath the Lands grants a Rent-charge to her sister who hath the Manor for equality of partition Anderson and Fenner Srjeants were against it Hill 23 Eliz. In the Common Pleas. 5. THis Case was moved by Serjeant Periam That if a Parson hath Common appendant to his Parsonage out of the lands of an Abby and afterwards the Abbot hath the Parsonage appropriated to him and his Successors Whether the Common be extinct Dyer That it is Because he hath as high an estate in the Common as he hath in the Land As in the case of 2 H. 4. 19. where it is holden That if a Prior hath an Annuity out of a Parsonage and afterwards purchaseth the Advowson and then obtains an Appropriation thereof that the Annuity is extinct But Windham and Meade Justices conceived That the Abbot hath not as perdurable estate in the one as in the other for the Parsonage may be disappropriated and then the Parson shall have the Common again As if a man hath a Seignorie in fee and afterwards Lands descend to him on the part of the Mother in that case the Seignory is not extinguished but suspended For if the Lord to whom the Land descends dies without issue the Seignorie shall go to the heir on the part of the Father and the Tenancy to the heir on the part of the Mother And yet the Father had as high an estate in the Tenancy as in the Seignory And in 21 E. 3. 2. Where an Assize of Nusance was brought for straightning of a way which the plaintif ought to have to his Mill The defendant did alledg unity of possession of the Land and of the Mill in W. and demanded Judgment if c. The plaintif said that after that W. had two daughters and died seised and the Mill was allotted to one of them in partition and the Land to the other and the way was reserved to her who had the Mill And the Assize was awarded And so by the partition the way was revived and appendant as it was before and yet W. the Father had as high an estate in the Land as he had in the Way Hill 23 Eliz. In the Common Pleas. 6. A Man makes a Feoffment in Fee of a Manor to the use of himself and his Wife and his heirs In which Manor there are Underwoods usually to be cut every one and twenty yeers and
the Nisi Prius the Defendant gave in Evidence That he had paid the Money to the Plaintiff before the day and that the Plaintiff had accepted of it all which Matter the Jury found specially and referred the same to the Justices And it was said by the whole Court That that payment before the day was a sufficient Discharge of the Bond but because the Defendant had not pleaded the same Specially but Generally that he had paid the Money according to the Condition the Opinion was That they must find against the Desendant for that the Speciall Matter would not prove the Issue and the Lord Dyer Chief Justice said That the Plaintiffs Councel might have demurred upon the Evidence Mich. 24. Eliz. in the Common Pleas. 15 AN Action was brought upon the Statute of 1 2 Phil. Mar. And the Statute is That no Distresse shall be driven out of the Rape Hundred Wapentake or Laith where such distresse is or shall be taken except it be to the Pound Overt within the said County not exceeding three Miles distant from the place where the Distresse was taken and the Plaintiff declared of a Distresse taken in a Hundred in such a County and that he drove it six miles out of the County and because a Hundred may be in diverse Counties and the Statute is That the driving ought not be more then 3 miles out of the Hundred and that it might be that the driving was six miles from the place where the Distresse was taken in another County and yet not three miles from the Hundred where the taking was for that Cause it was not adjudged against the party And that was after Verdict in arrest of Judgment Pasch 24. Eliz. in the Common Pleas. 16. A Feme sole seized of a Manor to which there were Copyholds One of the Copyholders did entermarry with the woman and afterwards he and his wife did suffer a Recovery of the Manor unto the use of themselves for their lives and afterwards to the use of the heires of the wife The Question was Whether the Copyhold were extinct And Anderson the Chief Justice said That if a Copyholder will joyn with his Lord in a Feoffment of the Mannor that thereby the Copy-hold is extinct The same Law is if a Copyholder do accept a Lease for years of his Copyhold which was agreed by the whole Court Pasc 24. Eliz. in the Common Pleas. 17. I. N. Doth Covenant with I. S. by Indenture to pay him forty pounds yearly for one and twenty years and afterwards I. S. doth release to I. N. all Actions The Question was Whether the whole Covenant were discharged And it was holden by all the Justices that only the Arrerages were discharged because the Covenant is executory yearly to be executed during the Term of one and twenty years for he may have several Actions of Covenant for every time that it is behind and if it be behind the second year he may have a new Action for that and so of every year during the Term several Actions for nothing shall be discharged by the release of all Actions but that which was in Action or a Dutie at the time of the release made As in 5. E. 44. and L. 5. E. 4. 41. In debt for Arrerages of an Annuity the defendant pleaded a release of all Actions which bore date before any arrerages were behind And the opinion of the Justices was there That it was no Plea and so it was adjudged for it is not a thing in Action nor a Duty untill the day of paiment comes And it is there holden by Arden That if a man make a Lease for two years rendring Rent and that the Tenant shall forfeit twenty shillings nomine poenae for not paiment at the day there a release of all Actions personals made to the Tenant before the penalty be forfeited is no Bar for it is neither Duty nor thing in Action before the failer of paiment And in 42. E. 3. 33. A man did release to his Tenant for term of life all his Right for the Term of the life of the same Tenant for life And that he nor his heirs might any right demand nor challenge or claim for the life of the Tenant for life in the said Land and afterwards he died and the Tenant committed Waste and the heir brought an Action of Waste and the Tenant pleaded the same Release and it was holden no Plea for nothing was extinct by the same Release but that which was in Action at the time of the Release made and that the Waste was not Rhodes Serjant put a Case which he vouched to be adjudged 4. Eliz. which was That if a man Covenant with I. S. that if he will marry his daughter that then he will pay him twenty pounds If a Release were made by I. S. before the marriage the same will not determine the twenty pounds if he marry her afterwards because it was not a Duty before the marriage So in the principal Case notwithstanding that the Covenant was once broken for the non-paiment at the first day yet because a several Action of Covenant lieth for every day that it was arreare the Release shall extinguish but only that which was Arreare at the time of the Release made And so Note That a Release doth not discharge a Covenant which is not broken Pasch 24. Eliz. in the Common Pleas. 18. UPon a special Verdict in an Action of Debt The Case was this I. S. and I. N. did submit themselves to the Award Order Rule and Judgemant of A. and B. for all Matters Quarrels and Debates and the Bond was made to perform the Award Order Rule and Judgement ment made by them And they Award Order Rule and Adjudge That I. S. shall pay to W. N. who was a Stranger twenty shillings The first Question was Whether the Award were good And it was holden by Anderson Chief Justice Meade and Periam Justices That the Award was void because it was out of their Submission for they cannot Award a man to do a thing which doth not lye in his power for in this Case W. N. to whom the money is to be paid is a Stranger and it is in his Election if he will accept of the money or not And so it is holden in 22. H. 6. 46. and 17. E. 4. 5. but vid. cont 5. H. 7. 2. Then if the Award be void The second Question was If yet the Bond to performe it be good or not And it was holden by the whole Court that it was void also against the Book of 22. H. 6. 46. because that the Condition was to performe that which was against the Law Quaere that Case for it seemes not to be Law at this day And it was then holden That Awards concerning Acts to be performed by them which have not submitted are void And in all Cases where each of the parties which submit have not some thing the Award is void Pasch
husband and therefore the prescription is not good that Potest ponere retes upon the land of another upon the Custome of the Sea for prescription must be in a thing done also by him the devise is not good according to the Custome for that is that she may devise and surrender and that ought to be all at one time and that in the presence of the Reeve and six other persons as well as the Surrenderer and the words of a Custome shall be so far performed as they may be Meade contrary And that these Witnesses shall be referred to the surrender onely for a devise may be without Witnesses And he said that sometimes the latter clause shall not refer to all the precedent matter but unto the latter onely as 7. H. 7. is Where a Praecipe was brought of lands in A. B. and C. in Insula de Ely the Clause in Insula de Ely is referred onely to C. And it was said That if in the principal Case the Will were good that then the husbands are Tenants in common and then the Action of Trespass is not maintainable Pasch 25. Eliz. in the Common Pleas. 23. THis Case was moved by Serjant Gawdy Thomas Heigham had an hundred Acres of lands called Jacks usually occupied with a house and he leased the house and forty Acres parcel of the said hundred Acres to I. S. for life and reserved the other to himself and made his Will by which he doth devise the house and all his lands called Jacks now in the occupation of I. S. to his wife for life and that after her decease the remainder of that and all his other lands pertaining to Jacks to R. who was his second son Whether the wife shall have that of which her husband died seised for her life or whether the eldest son should have it and what estate he shall have in it Meade The wife shall not have it for because that he hath expressed his Will that the wife shall have part it shall not be taken by implication that she shall have the whole or the other part for then he would have devised the same to her And therefore it hath been adjudged in this Court betwixt Glover and Tracy That if Lands be devised to one and his heirs males and if he die without heirs of his body that then the land shall remain over that he had no greater estate then to him and his special heirs viz. heirs Males and the reason was because the Will took effect by the first words Anderson Chief Justice It was holden in the time of Brown That if lands were devised to one after the death of his wife that the wife should have for life but if a man seised of two Acres deviseth one unto his wife and that I. S. shall have the other after the death of the wife she takes nothing in that Acre for the Cause aforesaid For the second matter If the Reversion shall pass after the death of the wife to the second son we are to consider what shall be said land usually occupied with the other and that is the land leased with it But this land is not now leased with it and therefore it cannot pass Windham The second son shall have the Reversion for although it doth not pass by these words Usualy Occupied as Anderson held yet because the devise cannot take other effect and it appeareth that his intent was to pass the land the yonger son shall have it Anderson Jacks is the intire name of the house and lands And that word when it hath reference unto an intire thing called Jacks and is known by the name of Jacks shall pass to the second son for words are as we shall construe them And therefore If a man hath land called Mannor of Dale and he deviseth his Mannor of Dale to one the land shall pass although it be not a Mannor And if I be known by the name of Edward Williamson where my name is Edward Anderson and lands are given unto me by the name of Edward Williamson the same is a good name of purchase And the opinion of the Court was that the Reversion of the land should pass to the second son Pasc 25. Eliz. in the Common Pleas. 24. The Lord MOUNTJOY and the Earle of HUNTINGTON'S Case NOte by Anderson Chief Justice and Periam Justice If a man seised of any entrie Franchises as to have goods of Felons within such a Hundred or Mannor or goods of Outlaws Waifes Strares c. which are causual There are not Inheritances deviseable by the Statute of 32. H. 8. for they are not of any yearly value and peradventure no profit shall be to the Lord for three or four years or perhaps for a longer time And such a thing which is deviseable ought to be of annual value as appeareth by the words of the Statute And also they agreed that the said Franchises could not be divided and therefore if they descend to two coparceners no partition can be made of them And the words of the Statute of 32. H. 8. are That it shall be lawful c. to divise two parts c. and then a thing which canot be divided is not diviseable And they said That if a man had three Manors and in each of the three such Liberties and every Manor is of equal value that yet he cannot devise one Mannor and the Liberties which he hath to it Causá quâ supra but by them an Advowson is deviseable because it may be of annual value But the Lord Chancellor smiling said That the Case of the three Manors may be doubted And there also it was agreed by the said two Justices upon Conference had with the other Justices That where the Lord Mountjoy by deed Indented and Inrolled did bargaine and sell the Manor of âamford to Brown in Fee and in the Indenture this Clause is contained Provided alwayes And the said Brown Covenants and Grants to and with the Lord Mountjoy his Heirs and Assigns that the Lord Mountjoy his Heirs and Assigns may digg for Ore within the land in Camford which was a great Waste and also to digg Turffe there to make Allome and Coperess without any contradiction of the said Brown his Heirs and Assigns They agreed That the Lord Mountjoy could not devide the said Interest viz. to grant to one to digg within a parcel of the said Waste And they also agreed That notwithstanding that Grant That Brown his Heirs and Assigns owners of the Soile might digg there also like to the Case of Common Sans number The Case went further That the Lord Mountjoy had devised this Interest to one Laicott for one and twenty years and that Laicott assigned the same over to two other men And whether this Assignment were good or not was the Question forasmuch that if the Assignement might be good to them it might be to twenty and that might be a surcharge to the Tenant of the soile And as to that
of the Term with the Remainder over And the Devisee of the Occupation of a Term hath one speciall Property and the Remainder another Property As if a Lease be extended upon a Statute the Conusee during the Extent hath one Property and he who is to have it afterwards another Property and the reason of the difference is apparent when the Occupation is devised and when the terme is devised for in the first Case he puts but only a confidence in the Devisee as it appears in Welkdens Case But in the other Case all the Property goes and there is no confidence reposed in the Devisee And there is a Case in the very Point with which I was of Councell and was decreed in the Court of Chancery it was one Edolf's Case Where the Devise was of a terme the Remainder to another and he made the Devisee his Executor and he entred Virtute donationis as in this Case and it was decreed That the Executor might alien the Terme and that the Remainder could not be good And to this purpose Vid. 33. H. 8. 2 E. 6. 37 H. 6. 30. But if there might be a Remainder yet Incertae Personae nulla donation for if all the Children be preferred then the Remainder is void and then the Property of the Lease is in the Wife and she might preferre her at any time during her life and the generall property cannot be in another but in the Executor for the Legatee cannot enter although that 27 H. 6. seemeth to be contrary And if the whole Property be in the Wife her Husband might alien it and therefore it may be extended for his Debt as 7. H. 6. 1. is But it may bee objected That the Cases before put are of a devise of a Term and this is of a Lease That makes no difference for in Wroââslây's Case Lease there is said to contain not only a terme but also the years to come in the terme Then the Question is If by the sale of the Sheriff upon the Fieri facias if the term be so gone that the Wife shall not have it by the Reversall of the Judgment by Error for the Judgement is that the Party shall be restored to all that which he hath lost It is very cleer that it shall never return for if it should be so then no sale made by the Sheriffe might be good unlesse the Judgement be without Error which would be a very great damage to the Common Wealth And also by reason and by the Judgment in the Writ of Error it should not be so restored for the Judgment is That he shall be restored to all that which he hath lost ratione judicii and here the Defendant hath not lost any thing by force of the Judgment but by force of the Execution For the Judgment was to have Execution of 200 li and of the 200 li. he shall be restored again and not of the Lease And therefore in 7. H. 7. If a Manor be recovered and the Villains of the Manor purchase Lands and afterwards the Judgment is reversed by Error the Recover or shall have the Perquisite and the other shall not be restored to it And 7. H 7. A Statute was delivered in Owell maine and a recovery was by the Conusee upon Garnishment of the Conusor and the Conusee had Execution and afterwards the Judgement is reversed by Error yet the Conusor shall not be restored to the Land taken in Execution but only the Statute shall be redelivered back where it was before And in this Case if the party should be restored to the term it should be great inconvenience Also if I give one an Authority upon Condition and the Party doth execute the Authority and after the Condition is broken the Act is lawfull by him who had Authority upon Condition And so was the Lord of Arundels Case where the Feoffee upon Condition of a Manor granted Coppies it was holden That the Grants made by him were good notwithstanding the Condition was afterwards broken And in 13 E. 3. Barr 253. That a Recovery was Erroneous and the Party being in Execution the Gaoler suffered him to escape and after the Recovery was reversed for Error yet the Action lay against the Gaoler Also by him the Jury have given an imperfect Verdict so as we cannot tell whether the Party were preferred or not for the Will was unpreferred generally and the Jury find that she viz. A. the daughter was not preferred by her father in his life time so as the Preferment by the taile is limited generally so as if any other prefer her she shall not have the Remainder And the Jury have found that she was not preferred by one certain viz. by her Father nor in a certain time in his life time which is as much as to say That she was preferred by the Uncle Aunt or Mother and if it were so then the Remainder is not good to her Also they find no preferment in the life of the father and it may be that the Father hath given her preferment by Will and that was no preferment in his life but is consummate only by his death and so she might be preferred by him by Implication by his Will So as upon the whole Matter I conceive That the Judgement ought to be reversed Note that this Case was afterwards adjudged at Hertford Terme and the Judgement was That the Issue of the Wife had Judgement for her Terme and that the Judgement upon which the Execution was was Erroneous and reversed by the Writ of Error and that the opinion of the Justices was That the Term was not to be restored but so much for which it was sold upon the Execution And the Daughter of Perepoynt brought an Action for it and had Judgement 27 Eliz. in the Common Pleas. 37. ONE had certain Minerall Lands Leased to him for years with liberty to dig and make his Profit of the Mine The Lessee afterwards digged for Mine and sold the Gravell which came of it And by the Opinion of the whole Court This sale was no Waste for no Sale is Waste if the first act be not Waste As the Sale of Trees by Tenant for life or Years is not waste if the Cutting and Felling down of them was not Waste before for the Vendition is but a secondary Act and but subsequent to the Act precedent which Act if it were lawfull the Sale also is lawfull for the Sale alone is not waste But they said That if the Lessee fell or cut Timber Trees and sell them it is waste Non quia vendebat sed quia scindebat For if he suffer them to be upon the ground without doing any thing with them yet it is waste but he may use them for the Reparation of his house and then it is no waste And yet when he fels them with an intent for Reparations and afterwards sells them it is waste Non propter Venditionem only but for the felling
the Defendant as Bailiffe of his Shop curam habens administrationem bânorum The Defendant answered as to the Goods only and said nothing to the Shop And Tanfield moved the same for Error in Arrest or Judgment as 14. H. 4. 20. One charged another as Bailiffe of his house cuâam habens bonorum in âââexistentium the Traverse was That he was not Balivus of the house prout that is good and goeth to all but he cannot answer to the Goods and say nothing to the house so 49. E. 3. 7. Br. Accompt 21. A man brought an Account against the Bailiffe of his Manor habens curam of twenty Oxen and Cowes and certain Quarters of Corne. And by Belknap If he have the Manor and no Goods yet he shall account for the Manor and it shall be no Plea to say That the Plaintiffe sold him the Goods without Traversing without that that he was his Bailiffe to render Account and as to the Manor he may say That the Plaintiffe leased the same to him for years without that that he was his Bailiffe And he took another Exception That the Plaintiffe chargeth him with Monies ad Merchandizandum and he Traverseth that he was not his Receiver denariorum ad computandum prout And so he doth not meet with the Plaintiffe and so it is no issue and if it be no issue it is not helped by the Statute of Jeofailes 32. H. 8. but mis-joyning of Issue is helped by that Statute 19. Eliz. W. Atturney of the Common Pleas did charge another Atturney of the same Pleas with a Covenant to have three years board in marriage with the Defendants Daughter and he pleaded That he did not promise two years board and so issue was joyned and tryed and the same could not be helped by the Statute because it was no issue and did not meet with the Plaintiffe So if one charge one with debet detinet and he answer to the debet only it is no issue and therefore it is not helped In 29. H. 6. in Trespasse for entring into his house and taking of his Goods the Defendant pleaded non intravit and the issue was tried and Damages given and because the taking of the Goods was not also in issue all was void 4. E. 3. One shall not account by parcells because the Action is entire Vid. 3. E. 3. 8. acc lib. Deut. 202. A President 14. H 7. That the Verdict was not full and did not go to the whole and therefore was not good Helâ contrary And he said as to the first That there is a Case 9. E. 3. Accompt 35. Where the Plaintiffe chargeth the Defendant in Account as Bailiffe of his house and that he had Administration of his Goods viz. forty Sacks of wool And the Jury found that he was not Bailiffe or his house but they found that he had received the Sacks of Wooll to render account c. and he had judgement for the Goods although it was not found for the house Vide 5. H. 7. 24. a. Where if a Jury be charged with several issue and the one is found and the other not it makes no discontinuance or if one be discontinued yet it is no discontinuance of the whole But if the same be not helped by the common Law yet it is helped by the Statute of 32. H. 8. which sayes Non obstante Discontinuance or miscontinuance Daniel ad idem And he said That the books before of 14. H. 4. and 49. E. 3. were not ruled in the one book the Defendant pleaded That the Plaintiff gave the goods to him in the other that he sold them to him and demanded Judgement of the Action and it is no good answer for they are Pleas only before the Auditors and not in an Action of Account and although the Verdict be found for part only yet it is good for no Damages are to be recovered in an Account In Trespasse it is true if one be found and not the other and joint Damages be given the Verdict is naught for all but if severall Damages be given it is good as it is ruled in 21. H. 6. Cook 26. H. 8. is That he cannot declare generally of an house curam habens administrationem bonorum but he ought further to say viz. Twenty Quarters of Corn and the like c. In the Principal Case it is a joint charge and one charge for the Shop and Goods and he answers unto one only but he ought to answer to all or else it is no answer at all See 10. E. 4. 8. But Cook found another thing scil That there is thing put in issue which is not in the Verdict nor found nor touched in the Verdict and that makes all that which is found not good and that is not helped by any Statute I grant that discontinuances are helped by the Statute of 32. H. 8. of Jeofailes but imperfections in Verdicts are not helped It was a great Case argued upon a Writ of Error in the Exchequer Chamber and it was ãâã Case An Information was against Brache for entring into a house and one hundred Acres of Land in Stepney he pleaded Not guilty the Jury found him guilty for the one hundred Acres and said nothing for the house upon which Error was brought and the Judgement reversed and he said That it was not a discontinuance but no Verdict for part Daniel That was the fault of the Clark who did not enter it and it hath been the usge to amend the default of the Clark in another terme All the Justices said True if the Postea be in and not entred but here it is entred in the Roll in this forme Daniel Where I charge one in Accompt with so much by the hands of such a one and with so much by thehands of such a one although there be one absque hoc to them all yet they are severall issues The Court answered Not so unlesse there be severall issue joyned to every one of them But by Gaudy Justice If there be severall issues yet if one be found and the other not no Judgement shall be given Clenche Justice It is not a charge of the Goods but in respect of the Shop therefore that ought to be traversed Suit Justice The traverse of the Shop alone is not good The Queens Solicitor said That the books might be reconciled and that there needed not a traverse to the goods for the traverse of the Shop prout answers to all but now he charges him as Bailiffe of his Shop and Goods and he takes issue upon the Goods only which issue is not warranted by the Declaration And he said That if one charge me as Bailiffe of his Goods ad merchandizandum I shall answer for the encrease and shall be punished for my negligence But if he charge me as his Receiver ad computandum I shall not be answerable but for the bare money or thing which was delivered Mich. 28 29. Eliz. in the King 's
Bench. 70 GILE'S Case A Writ of Error was brought to reverse a Judgement given in an Action upon the Case The Action upon the Case was brought against one Quare exaltavit stagnum per quod suum pratum fuit inundatum and he pleaded Not guilty and the Jury found Quod erexit stagnum and if Errectio be Exaltatio then the Jury find that the Defendant is guilty and thereupon Judgement was given for the Plaintiffe Glanvile alledged the generall Error That Judgement was given for the Plaintiffe where it ought to have been given for the Defendant And he said That erigere stagnum est de novo facere Exaltare est erectum majoris altitudinis facere Deexaltare is ad pristinam altitudinem adducere prosternere stagnum est penitus tollere And the precise and apt word according to his Case in an Action upon the Case ought to be observed that he may have Judgement according to his damage and his complaint viz. either Deexaltare or Posternere c. 7. E. 3. 56. An Assize of Nusans Quare exaltavit stagnum ad nocumentum liberi tenementi sui The Defendant pleaded That he had not inhaunced it after it was first levyed And by Trew There is not any other Writ in the Chancery but Quare exaltavit stagnum Herle said That he might have a Writ Quare levavit stagnum and there by that book Levare stagnum exaltare stagnum do differ And therefore he conceived That the Writ should abate for using one word for another 8. E. 3. 21. Nusans 5. by Chauntrell In a Writ of Nusans Quare levavit if it be found that it was tortiously levied the whole shall be destroyed But in a Writ Quare exaltavit nothing shall be pulled down if it be found for the Plaintiffe but the inhauncing shall be abated only So 8. Ass 9. Br. Nusans 17. the same Case and difference is put and 16. E. 3. Fitz. Nusans 11. If the Nusans be found in any other forme then the Plaintiffe hath supposed he shall not recover And in 48. E. 3. 27. Br. Nusans 9. The Writ was Quare divertit cursum aquae c. and shewed that he had put Piles and such things in the water by which the course of the water was streitned wherefore because he might have had a Writ Quare coarctavit cursum qquae the Writ was holden not to be good Cook took another Exception viz. That the Assize of Nusans ought to be against the Tenant of the Free-hold and therefore it cannot be as it was here brought against the Workmen and it is not shewed here that the Defendant was Tenant of the Soil for 33. H. 6. 26. by Moile If a way be streitned and impaired an Action upon the Case lieth but if it be altogether stop'd an Assize of Nusans lieth But Prisoit said If the stopping be by the Terr-Tenant an Assize of Nusans lieth but if it be by a Stranger then an Action upon the Case but for common Nusanses no Action lieth but they ought to be presented in the Leet or Turne Drew We have shewed That he who brought the Assize of Nusans hath a Free-hold in the Land and if the Tenant be named it is sufficient although it be not shewed that he is Tenant of the Free-hold And to that all the Justices seemed to incline But then it was shewed to the Court that one of the Plaintiffes in the Writ of Error had released And if that should bar his Companions was another question And it was holden That the Writ of Error shall follow the nature of the first Action and that Summons and Severance lieth in an Assize of Nusans and therefore it was holden that it did the like in this Action therefore the Release of the one was the Release of the other But then it was asked by Glanvile What should become of the Damages which were entire Note Pasch 29. Eliz. the Case was moved again and Drew held exaltare and erigere all one and that erigere is not de novo facere for that is Levare But the Justices were against him who all held That erigere is de novo facere and exaltare is in majorem altitudinem attollere and at length the Judgment was affirmed That Erectio and Exaltatio were all one For the Chief Justice had turned all his Companions when he came to be of Opinion that it was all one And so the Case passed against Glanviles Client Mich. 28 29. Eliz. in the Kings Bench. 71 THE Lady Gresham was indicted for stopping the High-way and the Indictment was not laid to be contra pacem And Cook said That for a mis-feasance it ought to be contra pacem but for a non-feasance of a thing it was otherwise and the Indictment was for setting up a gate in Osterly Park And Exception also was taken to the Indictment for want of Addition for Vidus was no Addition of the Lady Gresham and also Vi armis was left out of the Indictment And for these causes she was discharged and the Indictment quashed Mich. 28 29. Eliz. in the King 's Bench. 72. IN an Ejectione firme Exception was taken because the Plaintiffe in his Declaration did not say Extratenet For in every Case where a man is to recover a possession he ought to say extra tenet And in Debt he ought to say Debet dâtinet And in a Replevin Averia cepit injustè detinet But all the Justices agreed That in an Ejectione firme those words were not materiall For if the Defendant do put out the Plaintiff it is sufficient to maintain this Action And Kempe Secondary said that so were all the ancient Presidents although of late times it hath been used to say in the Declaration Extra tenet and the Declaration was holden to be good without those words Mich. 28 29. Eliz. in the King 's Bench. 73 IN a Case for Tithes the Defendant did prescribe to pay but ob q for the Tithes of all Willows cut down by him in such a Parish Cooke It is no good prescription for thereby if he cut down all the Willows of other men also but ob q. should be paid for them all But he ought to have prescribed for all Willows cut down upon his own land and then it had been good But as the prescription is it is unreasonable and of that opinion was the whole Court Mich. 28 29. Eliz. in the King 's Bench. 74 DEIGHTON and CLARK'S Case IN an Action of Debt upon a Bond the Condition of the Bond was That whereas the Plaintiff was in possession of such Lands If I. S. nor I. D. nor I. G. did disturb him by any indirect means but by due course of Law that then c. The Defendant pleaded That nec I S. nec I. D. nec I. G. did disturb him by any indirect means but by due course of Law Godfrey The plea in Bar is not good for it is a Negative pregnans viz. such a Negative
which implyes an Affirmative which yet seems to be repugnant to a Negative as in 21. H. 6. 19. In a Writ of Entrie the Defendant pleaded the deed of the Demandant after the darrein Continuance The Demandant said It was not his deed after the darrein Continuance And that was holden a Negative pregnans wherefore he was compelled to plead and say he made it by dures before the darrein Continuance such a day absque hoc that he made it after the darrein continuance and then Issue was taken upon it The same Case is in 5. H 7. 7. But there it is said That in Debt upon a Bond to perform an Arbitrement Non fecerunt Arbitrementum per diem is no Negative pregnans The same Law that non deliberavit arbitrium in Script 38. H 6. in Formedon Ne dona pas in taile is a Negative pregnans Vide 39 H. 6. The Case of the Dean and Chapter The second Exception was That he hath pleaded neque such nor such nor such had disturbed him by any indirect means but onely by due course of Law And that cannot be tryed neither by Jury nor by the Judges Not by the Jury because it is not to be put to them whether they had disturbed him by indirect means or by due course of Law for they shall not take upon them the construction What is an indirect means and what is the due course of Law for it appertaineth to the Justices to adjudg that Not by the Judges because hee hath not put it certain that it was a due course of Law by which he disturbed him As 22. E. 4. 40. In Debt upon a Bond the Defendant saith that it is upon condition That if the Defendant or any for him came to Bristow such a day and there shewed to the Plaintiff or his Councell a sufficient Discharge of an Annuity of forty shillings per annum which the Plaintiff claims out of two Messuages of the Defendant in D that then c. The Defendant said that A. and B. by the assignement of the Defendant came the same day to Bristow and tendered to shew to N and W. of the Plaintiffs Councell a sufficient Discharge of the Annuity and that they did refuse to see it and demanded judgment of the Action The Plaintiff did demur upon the Plea And after a long argument it was adjudged by all the Justices to be no Plea c. because it lay in the judgment of the Court to judg of it and he did not shew in certain what discharge he tendered as a Release Unitie of possession c. If a man be bound to plead a sufficient plea before such a day in Debt upon such a Bond it is no plea to say That he hath pleaded a sufficient plea before the day but hee ought to shew what plea he hath pleaded For the Court cannot tell whether it be a sufficient plea or not if it do not appear what manner of plea it is 35 H. 6. 19. The Condition of a Bond was That where the Plaintiff was indebted to J. S. in one hundred pounds If the Defendant acquit and discharge the Plaintiffe that then c. The Defendant pleaded That hee had discharged him c. and the Plaintiffe did demurre upon the plea because hee did not shew how and it was holden no good plea. So 38. H. 8. Br. Condition 16. per curiam in the Kings Bench where a man pleaded That he had saved him harmlesse it was no Plea without shewing how because he pleaded in the Affirmative contrary if he had pleaded in the Negative as Non damnificatus est Suit and Clenche Justices said That if he had pleaded That he was not disturbed by any indirect means it had been good enough Gaudy If he had said That he was not disturbed contra formam conditionis praedict ' it had been good as upon a pleading of a Statute Ne entra pas contra formam Statuti Clench If I be bound to suffer I. S. to have my house but not I. D. I ought to answer That I have suffered the one and not the other to have it Suit Justice They are both severall issues and one shall not be repugnant to the other Mich. 28 29 Eliz. In the Kings Bench. 75 STURGIE'S Case A Case was moved upon the Statute of 5. Eliz. Cap. 14. The Case as I conceive was thus Grandfather Father and Daughter Land descended from the Grandfather to the Father who made a Lease for one hundred years the Father died and the Daughter forged a Will of the Grandfather by which he gave the Land to the Father for life the Remainder to the Daughter in Fee and the same was forged to have avoided an Execution of a Statute Staple the Lease being defeated and if it were within the Statute of 5. Eliz. was the question Solicitor That it was within the statute and within the first Branch viz. If any shall forge any deed c. to the intent that the Estate of Free-hold or Inheritance of any person c. in or to any Lands Tenements or Hereditaments Freehold or Copyhold or the right Title or Interest of any c. of in or to the same or any of them shall or may be molested c. Lessee for years hath a Title hath an Interest hath a right therefore within the words of the Statute and those words shall be referred to the words Lands Tenements c. But Cook said They shall be referred to the words precedent viz. Estate of Freehold or Inheritance and then a Lease for years is not within them Also by the Solicitor A Testament in writing is within the words of the Statute and therefore he recited a clause in the end of the Statute viz. and if any person plead publish or shew forth c. to the intent to have or claime thereby any Estate of Inheritance Freehold or Lease for years And also he said a Statute Staple is an estate for years although it be not a Lease for years because it is not certain Cook If she should be within both branches then she should be twice punished which Law will not suffer And the Statute is whereby any Estate for years shall be claimed and she would not claim but defeat an Estate for years and a Statute Staple is not a Lease for years and the Statute is not to be taken by Equity because it is a Penall Law Solicitor When the Statute is extended then it is an Estate for years although it be uncertain If a man forge a Lease for years it is directly within the Statute But if a man have a Lease and another is forged to defeat it it is a question whether it be within the Statute And all the doubt of this Case is upon the reference of these words Right Title Interest And it was adjourned Mich. 28 29. Eliz. in the Kings Bench. 76 THE Vicar of Pancras Case was argued again by Godfrey And he said That no Plea shall be
not have an Action without cause and if he were convicted then there is no cause of Action and he hath not shewed whether he was convicted or acquitted And he said that there was no difference betwixt an Action on the Case and a Conspiracie in such case but onely this That a Conspiracy ought to be by two at the least and an Action upon the Case may lie against one and he said that in both he ought to shew that he was legitimo modo acquietatus See 11. H. 7. 25. An Action of Conspiracy founded upon the Statute of 8. H 6. Cap. 10. where it is grounded upon a Writ of Trespasse brought against one onely But such a Conspiracy which is grounded upon an Indictment of Felony must be against two at the least for the same is an Action founded upon the Common Law Mich. 28 29. Eliz. In the Kings Bench. 92. BONEFANT against Sir RIC. GREINFIELD BOnefant brought an Action of Trespasse against Sir Richard Greinfield The Case was this A man made his Will and made A. E. I. O. his Executors and devised his Lands to A. E. I. and O. by their speciall names and to their heirs and further willed that his Devisees should sell the Land to I. D. if he would give for the same before such a day an hundred pound and if not that then they should sell to any other to the performance of his Will scil the payment of his debts I. D. would not give the hundred pound One of the Devisees refused to entermeddle and the other three sold the Land and if the Sale were good or not was the question Cooke The Sale is not good 1. Let us see what the Common Law is At the Common Law it is a plain case that the Sale is not good because it is a speciall trust and a joynt trust and shall never survive for perhaps the Devisor who is dead reposed more confidence in him who refused then in the others Vide 2 Eliz. the Case of the Lord Bray who covenanted That if his son marry with the consent of four whom he especially named viz. A. B. C. and D. that then he would stand seised to the use of his son and his wife and to the heirs of their two bodies begotten One of the four was attainted and executed The other did consent that he should marry such a one he married her yet no estate passed because the fourth did not consent and it was a joynt trust 38. H. 8. Br. Devises 31. A man willeth that his Lands deviseable shall be sold by his Executors and makes four Executors all of them ought to sell for the trust which is put upon them is a joynt Trust But Brook conceiveth that if one of them dieth that the others may sell the Lands The Case betwixt Vincent and Lee was this A man devised That if such a one dieth without issue of his body that then his Sons in law should sell such Lands and there were five sons in law when the Testatour died and when the other man died without issue there were but three sons in law and they sold the Lands and it was holden that the Sale was good because the Land was not presently to be sold Also he said that in the principall Case here they have an Interest in the Lands and each of them hath a part therefore the one cannot sell without the other But if the devise were that four should sell they have not an Interest but onely an Authority As to the Statute of 21. H. 8. Cap. 4. he said that that left our Case to the Common Law For that Statute as it appeareth by the preamble speaks onely of such Devises by which the Land is devised to be sold by the Executors and not devised to the Executors to sell And goes further and saith Any such Testament c. of any such person c. therefore it is meant of such a devise made unto the Executors and then no Interest passeth but onely an Authority or a bare Trust But in our Case they have an Interest for he who refused had a fourth part Then when the other sell the whole the same is a disseisin to him of his part If a Feoffment be made to four upon condition that they make a Feoffment over and two of them make the Feoffment it is not good Also the words of the Will prove that they have an Interest for it is that his Devisees shall sell c. Laiton contrary And he said That although the Devise be to them by their proper names and not by the name Executors yet the intent appeareth that they were to sell as Executors because it was to the performance of his last Will and that may be performed as well by the three although that the other doth refuse and the Sale of the Land doth referre to the performance of his Will in which there are divers Debts and Legacies appointed to be paid 2. H. 4. and 3. H. 6. A man devised his Lands to be sold for the payment of his debts and doth not name who shall sell the same the Lands shall be sold by his Executors 39. Ass A Devise is of Lands unto Executors to sell for the performance of his Will the profits of the Lands before the Sale shall be assets in the Executors hands 15. H. 7. 12. is That if a man devise that his Lands shall be sold they shall be sold by his Executors Also if I devise that my Executors shall sell my Lands and they sell it is an Administration and afterwards they cannot plead that they never were Executors nor never administred as Executors And although there are divers Authorities to be executed yet it is but one Trust 39. Ass 17. is our very Case A man seised of Lands deviseable devised them to his Executors to sell and died having two Executors and one of them died and the other entred and sold the Land and the Sale was good 49. E. 3. 15. Isabell Goodcheapes Case Where a man devised that after an Estate in taile determined that his Executors should sell the Lands and made three Executors and one died and another refused the third after the taile determined sold the Land and the Sale was holden good and that it should not escheate to the Lord for the Land was bound with a Devise as with a Condition as to the Statute of 21. H. 8. Cap. 4. the preamble of the Statute is as it hath been recited and although for exmaple the Lands in use are only put yet the Statute is not tied only to that As in the Statute of Collusion of Malbridge Examples are put only of Feoffments and Leases for years yet there is no doubt but that a Lease for life or a gift in taile to defraud the Lord is within the Statute So the Statute of Donis Conditionalibus puts onely three manner of estate tailes But Littleton saith That there are many other estate tailes which are
not recited in the Statute So here our Case is within the Mischiefe of the Statute of 21. H. 8. Cap. 4. although it be not within the Example So the Statute of West 1. is That if the Gardien or Lessee for years maketh a Feoffment in Fee Tam Feofator quam feofatus habeantur pro disseisoribus yet 22. Ass is That if Tenant by Elegit make a Feoffment it is within the Statute Also it may be a doubt Whether Land devisable onely by custome bee intended in the Statute of 21. H. 8. Cap. 4. And whether Land devisable by the Statute of 32. H. 8. be within it or not viz. If a Statute of a puâsne time shall be taken by Equity within a more Ancient Statute and I conceive it may as 12. H. 7. the Statue of 4. H. 7. which sayes that the heire of Cestuy que use shall be in Ward shall extend to the Statute of Praerogativa Regis for if he be in Ward to the King he shall have Prerogative in the Lands to have other Lands by reason thereof Gaudy Justice did rely very much upon the word Devisees viz. that they have an Interest and that the Sale was not good Suit Justice They are both Executors and Devisees of the Lands Devisees of the Lands and Executors to performe the Will Cook he who refused to sell cannot waive the Freehold which is in him by a refusall in pars as 7. H. 2. and 7. E. 4. but ought to waive it in a Court of Record therefore he hath an Interest remaining in him Clenche Justice What if he had devised the Lands to four and made one of them his Executors and willed that he should sell could not he sell All the Court agreed that he might Cook When a man deviseth that his Executors shall sell the Fee descends to the heir yet they may sell that which is in another but the same is not like to our Case It was adjourned Mich. 28 29. Eliz. in the King 's Bench. 93. A Judgement was given upon a Bond for four thousand pound And the Scire facias was sued for three thousand pound and he did not acknowledge satisfaction of the other thousand pound Haughton moved That the Scire facias should abate As if a man brings Debt upon a Bond of twenty pound and shews a Bond for forty pound and doth not acknowledge satisfaction for 20l l it is not good The Justices would advise of it And at another day it was moved againe Whether the Scire facias was good because it doth recite Quod cum nuper such a one recuperasset four thousand pound and doth not shew in what Action or at what day the Judgment was given or the Recovery had Piggot That is not material for such is the Form in an Audita querela or Redisseisin As to the other That he doth not acknowledge satisfaction as in the Case before cited by Haughton which Case is in 1. H. 5. That is not like to an Execution for an Execution is joint or severall at the will of him who sues it forth as in 19. R. 2. Execution 163. hee may have part of his Execution against one in his life time and if he dieth other part against his Heir or Executor Note the Execution was of the whole but because the Defendant had not so much he had but part against him who had no more and therefore of the residue he had Execution against the Heir Gawdy Justice I conceive that he cannot have an Execution unlesse he acknowledge Satisfaction There is no difference as to that betwixt the Action of Debt upon a Bond and a Scire facias and the intendment viz. that it shall be intended that he was paid because he sued but for Three thousand Pound will not help him Piggot as to that vouched a Case out of 4 5. Mary in Dyer which I cannot find Suit Justice said That if the Defendant in the Scire facias say nothing by such a day that Judgement should be entred for the Plaintiffe Quod executio fiet Mich. 28 29. Eliz. in the Kings Bench. 94 JUdgement was given against an Infant by default in a reall Action of Land And a Writ of Error was thereupon brought and it was argued That it is not error for in many cases an Infant shall be bound by a Judicious act as 3. E. 3. Infant 14. Where an Infant and a Feme Covert bring a Formedon and the woman was summoned and severed And it was pleaded That where the Writ doth suppose the woman was Sole she was Covert and Judgment was demanded of the Writ and that the Infant could not gainsay it but confessed it this Confession of the Plea which abated his Writ was taken And 3. H. 6. 10. Br. Saver Default 51. An Infant shall not save his default for he shall not wage his Law See there that the Default shall not be taken against him therefore that book seems rather against it then for it Vide 6. H. 8. Br. Saver Default 50. That Error lieth upon a Recovery by default against an Infant otherwise if it be upon an Action tried so is 2 Mar. Br. Judgment 147. It was said That a generall Act of Parliament shall bind an Infant if he be not excepted The Justices did seem to incline That if Judgement be given by default that it shall bind an Infant but there was no rule given in the Case Mich. 28 29. Eliz. in the Kings Bench. 95 A Clark of the King's Bench sued an Officer of the Common Pleas and he of the Common Pleas claimed his Priviledge and could not have it granted to him for it is a generall rule That where each of the persons is a person able to have Priviledge he who first claimes it viz. the Plaintiffe shall have it and not the Defendant As if an Atturney of the Common Pleas sueth one of the Clarks of the Kings Bench yet he of the Kings Bench shall not have Priviledge although the Kings Bench be a more high Court because the other is Plaintiffe and first claimeth it Mich. 28 29. Eliz. in the Kings Bench. 96 AM Action upon the Case upon a Promise was brought but the Case was so long that I could not take it But in that Case Tanfield who argued for the Defendant said That it is not lawfull for any man to meddle in the cause of another if he have not an Interest in the thing for otherwise it will be Maintenance But if a Custome be in question betwixt the Lord of the Manor and Copy-holder all the other Copy-holders of the Manor may expend their money in maintenance of the other and the Custome and the Master may expend the money of the servant in maintenance of the servant So he in the Remainder may maintain him who hath the particular Estate Maintenance is an odious thing in the Law for it doth encrease troubles and Suites He argued also How that Bonds Obligations and Specialties might be
assigned over how not 34. H. 6. 30. Br. Maintenance 8. If J. S. be indebted to me and I be indebted to J. D. I may assign that Debt to J. D. with the assent of J. S. otherwise not as I conceive And there also another difference is taken That Damages which are to be recovered for Trespass Battery c. cannot be assigned over because they are as yet uncertain and perhaps the Assignee may be a man of great power who might procure a Jury to give him the greator Damages If a Bond be for performance of Covenants contained in an Indenture of Lease if he assign the Lease he may assign the Bond also because they are concomitants and he hath an Interest in the Lease and therefore he may sue the Bond But if the Covenants be first broken and afterwards he assign over the Lease if the Assgnee sue the Bond it is directly Maintenance but if he assign over the Lease and afterwards the Covenants are broken if he sue there it is no Maintenance But if he assign over the Bond and reserve the Lease in his own hands and then the Covenants are broken and the other sue the Bond for the performance of Covenants it is Maintenance And to all that Cook agreed The second Point An Elegit is awarded to the Sheriffe and he extends the Lands and doth not returne it Whether it be a lawfull Execution to the party or not is the question It is a good Execution unlesse the words of the Writ be conditionall for then there must be a returne of the Writ as a Fieri facias must be returned otherwise the Execution is not well done for it is conditionall viz. Ita quod habeas pecuniam in curia c. So is it of a Capias ad satisfaciendum Ita quod habeas corpus hîc But an Elegit is not conditionall Yet Kemp the Secondary said That in the end of the Elegit is Et de eo quod inde feceris nobis in dicta cancellaria tali die ubicunque tunc fuerit sub Sigillo distinctè apertè constare facias c. And so is the forme of the Writ in Fitz. Nat. Br. 266. Tanfield That is true but it doth not make the Writ conditionall but that is the Entry of the Court and the Sheriffe and not the Entry of the Party and the Sheriff 11. H. 4. 59. by Hankford who was a man of great knowledge and lived in learned times If the Recognisee of a Statute Merchant sueth Execution of it although the Writ be not returned and the Recognisee hath Execution and afterwards the Recognisor purchaseth other Lands and afterwards the Recognisee comes and saies That the Writ is not returned and sues forth another Writ the Recognisor shall have an Audita querela in that Case and shall surmise in Fact how that execution was done by the first Writ and yet there is no Record that execution was done by the first Writ So 19. E. 3. Briefe 370. A Writ issued to have Execution in forty Towns and an Extent was made and delivered of Lands in forty Towns and the Return made mention but of Execution in eight Towns and therefore the Party would have had a new Writ and the other Party was received to averre against the Record of the Returne that the Extent was in forty Towns 12. E. 3. Scire facias 117. Upon an Elegit the Sheriffe returned extendi feci and did not say deliberavi and in truth he did deliver the Lands in extent and therefore he could not have a new Execution 20. Eliz. betwixt Colsill and Hastings Colsill had an extent upon the Lands of Hastings and the Sheriffe being a friend to Hastings did not deliver full Possession to Colsill but gave him Possession in one part in the name of all the others Hastings continued Possession of all the rest and being upon Election of new Sheriffs Colsill was not over hasty to put him out for he was in hope to have a more favourable Sheriffe and the first Writ was not returned and there being a new Sheriff he sued forth a new Writ to have Execution The Defendant said That he had before sued forth the like Writ and had Execution And Colsill said That the first Writ was not returned and yet the Opinion of the whole Court was That it was a good Execution and so it was ruled but the Case was overthrown afterwards upon another Point So the Earle of Leicester had a Statute extended upon the Land of Mr. Tanfields Mother and it was not returned and yet when he would have sued forth another Execution he could not have it allowed him by the rule of the Court because the first Execution was a good Execution although it were not returned 15 Eliz. It was the Case of the Countesse of Derby who married the Earle of Kent in an Habere facias seisinam in a Writ of Dower Execution was served but not returned and therefore she prayed a new Writ but could not obtain it because the first was well executed although it was not returned So also was the Lord Morleyes Case in the Kings Bench in 28. Eliz. the Writ was not returned and yet the Execution was well done And therefore he concluded That the Execution was good although the Writ was not returned Cook contrary An Elegit ought to be returned and it is void if it be not returned As to the Case before cited of 19. E. 3. which began 9. E. 3. 450. And all the other Cases put out of the old Books They are upon extents of Statutes and there is a great difference betwixt an Elegit and Extents upon Statutes as 15. H. 7. 14. It was agreed That where a man recovers Debt or Damages or hath a Recognisance forfeit unto him his Executors shall not have Execution without a Scire facias first sued contrary upon a Statute Staple or Merchant and the like if the Defendant dieth the Plaintiffe shall not have an Execution by Fieri facias against his Executors but he must first have a Scire facias So if the Court change as if the Record cometh into the Kings Bench by Error and Judgement be affirmed the Plaintiffe who recovered shall not have a Fieri facias against the Defendant but must first have a Scire facias But otherwise it is of a Statute like the Case of 14. H. 7. 15. Br Execution 59. The Case of 12. E. 3. doth not speak of Elegit but of Statutes and Extents Also the Elegit and the Extent differ in the Entrie for the Elegit hath a speciall and precise Entry as Elegit sibi executionem c. And a man shall not have a Capias after an Elegit as 15. H. 7. is And being a speciall Entry of Record it ought to be returned for otherwise it doth not appear that Execution is done and so there shall be great mischiefe because infinite Executions may issue forth There is not any Book in the Law directly
licence be to A. and B. or C. some conceived that A. or B. might alien but not C. Et èâconverso Mich. 28 29. Eliz. in the Common Pleas. 105 IT was agreed by the whole Court That a Partition made by word betwixt Joyntenants is not good See Dyer 29. Pl. 134. and 350. Pl 20. doth agree and see there the reason of it Mich. 28 29. Eliz. in the Common Pleas. 105 IT was holden by the whole Court That if the Father do devise Lands unto his Son and Heir apparant and to a stranger that it is a good Devise and that they are Joyntenants for the benefit of the Stranger Mich. 28 29. Eliz. in the Common Pleas. 106 FULLER'S Case A. Promises unto the eldest son that if he will give his consent that his Father shall make an Assurance unto him of his Lands that he will give him ten pounds If he give his assent although no assurance be made yet he shall maintain an Action upon the promise But at another day Periam Justice said that in that case the son ought to promise to give his assent or otherwise A. had nothing if his son would not give his consent And so where each hath remedy against the other it is a good Consideration In Hillary Term after Fenner spake in arrest of Judgment upon the speciall Verdict That because that the Assumpsit is but of one part and the other is at liberty whether he will give his consent or not that therefore although that hee do consent that hee shall not recover the ten pounds Also he said That the promise was that if hee would give consent that his Father should make assurance to him and here the assurance is made to A. to the use of the Defendant and his Wife in taile so as it varies from the first Communication and also it is in tail Shuttleworth contrary in as much as he hath performed it by the giving of consent then when he hath performed It is not to the purpose that he was not tyed by a crosse Assumpsit to do it but if he had not given his consent he should have nothing At length Judgment was given for the Plaintiff And Periam Justice said in this Case That if a covenant be to make an Estate to A. and it is made to B. to the use of A. that he doubted whether that were good or not Mich. 28 29 Eliz. In the Common Pleas. Intratur Hill 28. Eliz. Rot. 1742. 107 WISEMAN and WALLINGER'S Case A Man seised of two Closes called Bl. Acre makes a Lease of them rendring Ten Shillings rent The Lessee grants all his Estate in one of them to A. and in the other to B. The Lessor doth devise all his Land called Bl. Acre in the tenure of A. and dieth The Devisee brings an Action of Debt for the whole Rent against the first Lessee And the Opinion of the whole Court was That the Action would not lie because they conceived That but the Reversion of one Close passed and also that the rent should not be apportioned in that Case because a terme is out of the Statute and a Rent reserved upon a Lease for years shall not be apportioned by the act of the Lessor as where he takes a Surrender of part of it But otherwise by Act in Law as where the Tenant maketh a Feoffment in Fee of part of the Land and the Lessor entreth And at another day Anderson Chief Justice said That if the Lessor of two Acres granteth the Reversion of one Acre that the whole Rent is extinct Mich. 28 29. Eliz. in the Common Pleas 108 A Lease for years is made of Land by Deed rendring Rent the Lessee binds himselfe in a Bond of Ten Pound to perform all Covenants and Agreements contained in the Deed the Rent is behind and the Lessor brings an Action of Debt upon the Bond for not payment of the Rent the Obligor pleads performance of all Covenants and Agreements the Lessor saie That the Rent is behind it was holden That it is no Plea for the Obligor to say That the Rent was never demanded But in this Bar he ought to have pleaded That he had performed all Covenants and Agreements except the payment of the Rents And as to that That he was alwayes ready to have paid it if any had come to demand it but as the first Plea is it was held not to be good And as to the demand of the Rent the Court was of opinion That it was to be demanded for the payment of the Rent is contained in the word Agreements and not in the word Covenants and then if he be not to performe the Agreements in other manner then is contained in the Deed of that agreement the Law saith That there shall be a demand of the Rent But if the Lessee be particularly expressed by covenant to pay the Rent there he is bound to do it without any Demand Mich. 28 29. Eliz. in the Common Pleas. 109 HOLLENSHEAD against KING THomas Hollenshead brought Debt against Ralph King upon a Recovery in a Scire fâcias in London upon a Recognizance taken in the Inner or Ouster Chamber of London and doth not shew That it is a Court of Record and that they have used to take Recognisances and Exception was taken unto the Declaration and a Demurrer upon it and divers Cases put That although that the Judgement be void that yet the Execution shall be awarded by Scire facias and the party shall not plead the same in a Writ of Error But Periam Justice took this difference Where Execution is sued upon such a Judgement and where Debt is brought upon it for in Debt it behoves the Party that he have a good Warrant and ground for his Action otherwise he shall not recover but upon a voidable Judgement he shall recover before it be reversed Mich. 28 29 Eliz. In the Common Pleas. Intratur Trinit 28. Eliz. Rot. 507. 110 COSTARD and WINGFIELD'S Case IN a Replevin the Defendant did avow for Damage Feasans by the commandment of his Master the Lord Cromwell The Plaintiffe by way of Replication did justifie the putting in of his Cattell into the Land in which c. by reason that the Towne of N. is an ancient Town and that there hath been a usage time out of mind That every Inhabitant of the same Towne had had common for all his cattel Levant and Couchant in the same Town and so justified the putting in of his cattell The Defendant said That the house in which the Plaintiffe did inhabite in the same Towne and by reason of Residency in which house he claimed common was a new house built within 30 years and within that time there had not been any house there and upon that Plea the Plaintiffe did demurr in Law Shuttleworth Serdeant for the Plaintiffe That he shall have common for cause of Resiance in that new house and the Resiancy is the cause and not the Land nor
the Person and to that purpose he cited 15 E. 4. 29. And he agreed the Case That if the Lord improve part of the Common that he shall not have common for the Residue because of the same Land newly improved for he cannot prescribe for that which is improved by 5. Ass 2. But here he doth prescribe not in the person or in or for a new thing but that the usage of the Towne hath been That the Inhabitants shall have common and that common is not appendent nor appertinent nor in grosse by Needham 37 H. 6. 34. b. Besides he said That if the house of a Freeholder who hath used to have such common fall down and he build it up again in another place of the Land that he shall have common as before And he put a difference betwixt the case of Estovers and this Case where a new Chimney is set up for that makes a new matter of charge and he much stood upon the manner of the Prescription Gaudy Serjeant contrary and he took Exception to the Prescription for he saith that it is antiqua villa and doth not say time out of mind and such is the Prescription in 15. E. 4. 29. a. and if it be not a Town time out of mind c. he cannot prescribe that he hath used time out of mind c. And he said That if it should be Law that every one who builds a new house should have common it should be prejudiciall to the Ancient Tenants or impaire the common And so one who hath but a little land might build 20 houses and so an infinite number and every house should have common which were not reason Anderson chief Justice He who builds a new house cannot prescribe in common for then a prescription might begin at this day which cannot be and he insisted upon the generall loss to the ancient Tenants Pâriam Justice If it should be Law that he should have common then the benefit of improvement which the Statute giveth to the Lord shall be taken away by this means by such new buildings which is not reason So as all the Justices were of opinion That he should not have common but Judgement was respited untill they had copies of the Record And Hillary Term following the Case was moved again and Anderson and Periam were of Opinion as they were before and for the same reasons But Windham Justice did incline to the contrary But they did all allow That he who new bulids an old Chimney shall have Estovers so a house common So if a house fall down and the Tenant build it up again in another place Periam If a man hath a Mill and a Watercourse time out of mind which he hath used to cleanse if the Mill fall down and he set up a new Mill he shall have the liberty to cleanse the Watercourse as he had before And that Terme Judgement was given for the Defendant to which Windham agreed Mich. 28 29. Eliz. in the Common Pleas. 111 IN a Replevin the parties were at Issue upon the Property and it was found for the Plaintiff and Damages intire were assessed and not for the taking by it self and for the value of the Cattell by themselves for the Judgement upon that is absolute and not conditionall and also if the Plaintiffe had the Cattell the Defendant might have given the same in Evidence to the Jury and then they would have assessed Damages accordingly viz. but for the taking Mich. 28 29. Eliz. in the Common Pleas. 112 A. bargaines with B. for twenty Loads of Wood and B. promises to deliver them at D. if he fail an Action upon the Case lieth But Periam Justice said That upon a simple contract for wood upon an implicative promise an Action upon the Case doth not lie Rodes Justice If by failer of performance the Plaintiff be damnified to such a sum this Action lieth Mich. 28 29 Eliz. in the Common Pleas. 113 A Lease of Lands is made excepting Timber-Woods and Under-woods And the question was Whether Trees Sparsim growing in Hedge rowes and Pastures did passe And difference was taken betwixt Timber-wood being one Wood and Timber Woods being severall Words although it bee Arbor dum crescit lignum dum crescere nescit yet in common speech that is said Timber which is fit to make Timber Then it was moved Who should have the Lops and Fruits of them and the Soile after the cutting of them downe and also the Soile after the Under Woods and as to that a difference was taken where the words are generally All woods and where they are his woods growing And in speaking of that case another case was moved viz. If a stranger cut down woods in a Forrest and there is no fraud or collusion betwixt him and the owner of the Land Whether the King should have them or the owner of the Soile And it was holden That the owner of the Soile should have them and yet the owner could not cut them downe but is to take them by the Livery of one appointed by the Statute Mich. 28 29. Eliz. in the Common Pleas. 114. A. makes a Lease of Lands to B. for ten years rendring rent And B. covenants to repaire c. Afterwards A. by his Will deviseth that B. shall have the Lands for thirty years after the ten years under the like Covenants as are comprised in the Lease Fenner moved it as a question If by the Devise those which were Covenants in the first Lease should be Conditions in the second for they cannot bee Covenants for want of a Deed And if they should not be Conditions the heir of the Lessor were without remedie if they were not performed A Devise for years paying ten pounds to a stranger is a Condition because the stranger hath no other remedy Gaudy Justice By the Devise to him to do such things as he was to do by the Lease makes it to be a Condition which was in a manner agreed by all the other Justices Yet Periam and Rodes Justices said That the first Lease was not defeisable for not performance of the Covenants nor was it the intent of the Devisor that the second should be so notwithstanding that his meaning was that he should do the same things Periam The Covenant is in the third person viz. Conventum Aggreatum est And see 28. H. 8. Dyer where the words Non licet to the Lessee to assigne make a Condition Mich. 28 29. Eliz. in the Common Pleas. 115. BARBER and TOPESFEILD'S Case A. being Tenant in taile of certain Lands exchanged the same with B. B. entred and being seised in Fee of other Lands devised severall parcels thereof to others and amongst the rest a particular estate unto his heir Proviso That he do not re-enter nor claim any of his other Lands in the destruction of his Will And if he do that then the estate in the Lands devised to him to cease A. dieth his issue entreth into the Lands in
Condition that if the Rent be behinde the Feoffor might enter and retain quousque there the estate shall be determined pro tempore and afterwards revived again Windham There the Feoffor shall have the land as a distress and the Free-hold is not out of the Feoffee Fenner The Book proves the contrary for the Feoffor had an Action of Debt for the Rent Mich. 28 29. Eliz. in the Common Pleas. 121 IN a Formedon the Tenant pleaded a Fine with proclamations The Plaintiff replyed No such Record It was moved that the Record of the Fine which remained with the Chyrographer did warrant the Plea and the Record which did remain with the Custos Brevium did not warrant the Plea and both the Records were shewed in Court and to which the Court should hold was the question Shuttleworth To that which was shewed by the Custos Brevium and he cited the Case of Fish and Brocket where the Proclamations were reversed because that it appeared by the Record which was shewed by the Custos Brevium that the third proclamation was alledged to be made the seventh day of June which seventh day of June was the Sunday and yet hee said It appeared by the Record certified by the Chyrographer that it was well done and yet the Judgment reversed Rodes Justice There is no such matter in the same case And 26. El. by all the Justices and Barons of the Exchequer in such case the Record which remains with the Custos Brevium shall be amended and made according as it is in the Record of the Office of Chyrographer Windham agreed And afterwards the said President was shewed in which all the matter and order of proceedings was shewed and contained and all the names of the Justices who made the Order And by the command of the Justices it was appointed that the said President should be written out and should remain in perpetuam rei memoriam And the reason of the said Order is there given because the Note which remains with the Chyrographer is principale Recordum Mich. 28 29. Eliz. in the Common Pleas. 122. AN Infant was made Executor and Administration was committed unto another durante minore aetate of the Executor and that Administrator brought an Action of Debt for money due to the Testator and recovered and had the Defendant in Execution and now the Executour is come of full age Fenner moved that the Defendant might be discharged out of Execution because the Authority of the Administrator is now determined and he cannot acknowledge satisfaction nor make Acquittances c. Windham Justice Although the Authority of the Plaintiffe bee determined yet the Recovery and the Judgement do remaine in force But perhaps you may have an Audita querela But I conceive That such an Administrator cannot have an Action for he is rather as a Bayliff to the Infant Executor then an Administrator Rodes agreed with him and he said I have seen such a Case before this time viz. Where one was bound to such a one to pay a certaine sum of money to him his Heirs Executors or Assignes And the Obligee made an Infant his Executor and administration was committed during his minority and the Obligor paid the money to that Administrator And it was a doubt whether the same was sufficient and should excuse him or not And whether he ought not to have tendred the money to them both Fenner That is a stronger Case then our Case One who is Executor of his own wrong may pay Legacies and receive Debts but he cannot bring an Action Windham Doth it appear by the Record when the Infant was made Executor and that Administration was committed as before Fenner No truely Windham Then you may have an Audita querela upon it Fenner said So we will Note Hil. 33. Eliz. in the Exchequer Miller and Gores Case An Infant pleaded in a Scire facias upon an Assignement of Bonds to the Queen That Saint-Johns and Eley were Administrators during his minority And it was holden by the Court to be no plea. But he ruled to answer as Executor Mich. 28 29. Eliz. in the Common Pleas. 123 SUggestion was made that a Coroner had not sufficient Lands within the Hundred for which a Writ issued forth to choose another and one was chosen It was moved by Serjeant Snag If theâeby the first Coroner did cease to be Coroner presently untill he be discharged by Writ Rodes and Windham Justices He ceases presently for otherwise there should be two Officers of one Coronership which cannot be Also the Writ is Quod loco I. S. eligi facias c. unum Coronatorem and he cannot be in place of the first if the first do not cease to be Coroner So if any be made Commissioners and afterwards others are made Commissioners in the same cause the first Commission is determined Snagg said That in the Chancery they are of the same Opinion but Fitz. Nat. Brevium 163. N. is That hee ought to be discharged by Writ Mich. 28 29 Eliz in the Common Pleas. 124 IN an Action of Debt brought against Lessee for years for rent he pleaded That the Plaintiff had granted to him the reversion in Fee which was found against him Walmesley Serjeant moved Whether by that Plea he had forfeited his terme or not Rodes and Windham Justices He shall not forfeit his Term and Rodes cited 33. E. 3. Judgement 255. Where in a Writ of Waste the Tenant claimed Fee and it was found against him that he had but an Estate for life and yet it was no Forfeiture Fenner and Windham It is a strong Case for there the Land it selfe is in demand but not so in our Case Rodes The Tenant shall not forfeit his Estate in any Action by claiming of the Fee-Simple but in a Quid juris clamat Walmesley and Fennèr Where he claimes in Fee generally and it is found against him there perhaps hee shall forfeit his Estate but where he shewes a speciall conveyance which rests doubtfull in Law it is no reason that his Estate thereby should bee forfeited although it be found against him Rodes 6. R. 2. Quid juris clamat 20. The Tenant claimed by speciall conveyance and yet it was a forfeiture But in the principall Case at Bar he and Windham did agree cleerly That it was no forfeiture Mich. 28 29 Eliz. In the Common Pleas. 125 AN Action upon the Case was brought because that the Defendant had spoken these words viz. That the Plaintiffe hath said many a Masse to J. S. c. Anderson Chief Justice Primâ facie did seem to incline That no Action would lie for the words although that a Penalty is given by the Statute against such Masse-Mongers For he said That no Action lieth for saying That one hath transgressed against a Penall Law Periam Justice contrary Anderson If I say to one That he is a disobedient Subject no Action lieth for the words Windham Justice That is by reason of the generality Puckering
the Land unto another Shuttleworth moved it to the Court Whether the Patentee ought to shew the Letters Patents and he conceived He need not because he hath not any interest in them but the same do belong only to the Earle As if a Rent be granted to one in Fee and he taketh a wife and dieth and the Wife bringeth a Writ of Dower she is not bound to shew the first Deed by which the Rent was granted to her Husband because the Deed doth not belong unto her So hee who sues for a Legacie is not tied to shew the Will because the same belongs to the Executor and not him Periam Justice The Cases are not alike for they are Strangers and not Privies but the Lessee in the principall Case deriveth his interest from the Letters Patents and therefore he ought to shew them Rodes Justice remembred Throgmorton's Case Com. 148. a. where a Lease was made by an Abbot to J. S. and afterwards the same Abbot made a Lease unto another to begin after the determination of the first Lease made to J. S. and exception was taken That he ought to have shewed the Deed of the first Lease and the Exception was disallowed by the Court Periam That case is not like this case and he said That as he conceived the Lessee in this case ought to shew forth the letters Patents and if any Books were against his Opinion it was marvellous Mich. 28 29 Eliz. in the Common Pleas. 134 ONE intruded after the death of Tenant for life and died seised and the land descended to his Heire and a Writ of Intrusion was brought in the Per against the Heir and Gawdy Serjeant prayed a Writ of Estrepment against the Tenant And first the Court was in doubt what to do but afterwards when they had considered of the Statute of Gloucester Cap. 1. in the end of it Anderson said If the Writ be in the Per take the Writ of Estrepment but if the Writ be not in the Per we doubt whether a Writ of Estrepment will lie or not Mich. 28 29 Eliz. In the Common Pleas. 135 WOOD against ASH and FOSTER CErtain Lands with a Stock of Sheep was leased by Indenture and the Lessee did covenant by the same Indenture to restore unto the Lessor at the end of the Terme so many Sheep in number as he took in Lease and that they should be betwixt the age of two and four years Afterwards the Lessee granted the same Stock unto a Stranger viz. to Elizabeth Winsor who was the wife of Ashe whereas in truth all the ancient Stock was spent And it was holden by all the Justices upon an Evidence given unto a Jury at the Bar That when such a Stock of Sheep is leased for years the principall Property doth remain in the Lessor as long as those Sheep which were in esse at the time of the Lease should live but if any of them do die and other come in their roomes then the property of those new Sheep doth belong to the Lessee and therefore they held that the second Lessee should have so many of the Sheep as were left and did remaine at the end of the Lease and no other And yet it was objected by Walmesley That the Stock was entire and that as soon as any other came in the room of the ancient Sheep which were dead that they were accounted part of the same stock and although they be all dead and so changed successively two or three times yet he said it shall be said the same stock And he resembled the same to the case of a Corporation which although all the Corporation die and other new men come in their places it shall be said the same Corporation But notwithstanding his Opinion all the Justices were of opinion as before Walmesley said That agreeing with his opinion was the opinion of all the civill Lawyers but the Court was angry and rebuked him that he did in such manner crosse their opinions and that he cited the opinion of Civilians in our Law and they resolved the contrary and they said there is a difference betwixt the Lease of other Goods and a lease of live Cattel for in the first Case if any thing be added for mending repairing or otherwise by the Lessee at the end the Lessor shall have the additions for of them he hath alwayes the property and they are annexed to the principall but Lambs Calves c. are severed from the principall and are the Profits arising of the Principall which the Lessee ought to have else he should pay his Rent for nothing And as to the issue upon the Cepit by Foster it was shewed That he did but stay the Sheep in his Manor where he had Fellons Goods Waifes and Strayes and that the Sheep were stayed upon a Huy and Cry and that he had taken Bond of one to whom he had delivered the Sheep to render them to him who had the right of them And that stay was holden by the Court to be out of the point of the Issue For that he who doth stay doth not take Mich. 28 29. Eliz. in the Common Pleas. 136. The Heirs of Sir ROGER LEWKNOR and FORD's Case Intratur Pasch 28. El. Rot. 826. SIR Roger Lewknor seised of Wallingford Park made a lease thereof unto Ford for years and died the Lessee granted over his term to another excepting the Wood the term expired and now an action of Waste was brought against the second lessee by the two Coparceners and the Heir of the third Coparcener her Husband being tenant by the courtesie And Shuttleworth and Snag Serjeants did argue that the action would not lie in the form as it was brought And the first Exception which was taken by them was because the action was generall viz. Quod fecit Vastum in terris quas Sir Roger Lewknor pater praedict ' the plaintiffs cujus haeredes ipsae sunt praefat ' defend ' demisit c. and the Count was that the Reversion was entailed by Parliament unto the Heirs of the body of Sir Roger Lewknor and so they conceived that the Writ ought to have been speciall viz. cujus haeredes de corpore ipsae sunt For they said that although there is not any such form in the Register yet in novo casu novum remedium est apponendum And therefore they compared this case to the case in Fitz. Nat. Brevium 57. c. viz. If land be given to Husband and Wife and to the Heirs of the body of the Wife and the Wife hath issue and dieth and the Husband committeth Waste the Writ in that case and the like shall be speciall and shall make speciall recitall of the estate And so is the case 26. H. 8. 6. where Cestuy que use makes a lease and the lessee commits Waste the action was brought by the Feoffees containing the speciall matter and it was good although there were not any such Writ in the Register cujus
haeredes de corpore and we are not to devise a new form in such case but it is sufficient to shew the speciall matter to the Court. Also the words of the Writ are true for they are Heirs to Sir Roger Lewknor and the count is sufficient pursuant and agreeing to their Writ for they are Heirs although they are not speciall Heirs of the body and so the Court was of opinion that the Writ was good notwithstanding that Exception And Anderson and Periam Justices said That the case is not to be compared to the case in F. Nat. Br. 57. c. for there he cannot shew by whose Demise the Tenant holdeth if he doth not shew the speciall conveyance viz. that the land was given to the Husband and Wife and the Heirs of the body of the Wife Nor is it like unto the case of 26. H. â 6. for the same cause for alwayes the demise of the Tenant ought to be especially shewed and certainly which it cannot be in these two cases but by the disclosing of the Title also to the Reversion Another Exception was taken because that the Writ doth suppose quod tenuerunt which as they conceived is to be meant that tenuerunt joyntly whereas in truth they were Tenants in common Walmesley contrary because there is not any other form of Writ for there is not any Writ which doth contain two Tenuerunts And the words of the Writ are true quod tenuerunt although tenuerunt in Common But although they were not true yet because there is no other form of Writ it is good enough As Littleton If a lease be made for half a year and the Lessee doth waste yet the Writ shall suppose quod tenet ad terminum annorum and the count shall be speciall 40. Ed. 3. 41. E. 3. 18. If the Lessee doth commit waste and granteth over his term the Writ shall be brought against the Grantor and shall suppose quod tenet and yet in truth he doth not hold the Land 44. Ed. 3. and Fitz. If one make divers leases of divers lands and the Lessee doth waste in them all the Lessor shall have one Writ of waste supposing quod tenet and the Writ shall not contain two Tenets And such was also the opinion of the Court The third Exception was because that the Writ was brought by the two coparceners and the Heir of the third coparcener without naming of the Tenant by the Courtesie And thereupon Snagg cited the Case of 4. Ed. 3. That where a Lease is made for life the Remainder for life and the tenant for life doth waste he in the Reversion cannot have an Action of waste during the life of him in the Remainder So in this case the Heir of the third coparcener cannot have waste because the mean estate for life is in the Tenant by the courtesie And to prove that the Tenant by the courtesie ought to joyn he cited 3. E. 3. which he had seen in the Book it self at large where the Reversion of a tenant in Dower was granted to the Husband and to the Heirs of the Husband and the tenant in Dower did waste and they did joyn in an Action of waste and not good And so is 17. E. 3. 37. F. N. B. 59. f. and 22. H. 6. 25. a. Walmesley contrary for here in our case there is nothing to be recovered by the tenant by the courtesie for he cannot recover damages because the disinheresin is not to him and the term is expired and therefore no place wasted is to be recovered and therefore it is not like unto the Books which have been cited for in all those the tenant was in possession and the place wasted was to be recovered which ought to go to both according to their estates in reversion But it is not so here for in as much as the term is expired the land is in the tenant by the courtesie and so he hath no cause to complain And such also was the opinion of the whole Court viz. that because the term was ended that the Writ was good notwithstanding the said Exception Then concerning the principall matter in Law which was Whether the Writ were well brought against the second Lessee or whether it ought to have been brought against the first Lessee It was argued by Shuttleworth that it ought to have been brought against the first Lessee for when he granted over his term excepting the trees the Exception was good Ergo c. For when the Land upon which the trees are growing is leased out to another the trees passe with the Lease as well as the Land and the property of them is in the Lessee during the term and therefore when he grants his term hee may well except the trees as well as the first Lessor might have done And that is proved by the Statute of Marlebridge Cap. 23. for before that Statute the Lessee was not punishable for cutting downe the trees and that Statute doth not alter the properties of the trees but onely that the Lessee shall render damages if he cut them down c. Also the words of the Writ of Wast proveth the same which are viz. in terris domibus c. sibi dimissis Also the Lessee might have cut them down for reparations c. and for fire-wood if there were not sufficient underwoods which he could not have done if the trees had been excepted And in 23. H 8. in Brooke It is holden that the excepting of the trees is the excepting of the Soile And so is 46. E. 3. 22. Where one made a Lease excepting the woods and afterwards the Lessee did cut them down and the Lessor brought an Action of Trespasse quare vi armis clausum fregit c. and it was good notwithstanding that Exception was taken to it And it is holden in 12. E. 4. 8. by Fairfax and Littieton That if the Lessee cut the trees that the Lessor cannot carry them away but he is put to his Action of Waste Fenner and Walmesley Serjeants contrary and they conceived that the Lessee hath but a speciall property in the trees viz. for fire-boot plough-boot house-boot c. And if he passe over the Lands unto another that he cannot reserve unto himselfe that speciall property in the trees no more then he who hath common appendant can grant the principall excepting and reserving the Common or grant the Land excepting the foldage The grand property of the trees doth remain in the Lessor and it is proved by 10. H. 7. 30. and 27. H. 8 13. c. If Tenant for life and he in the reversion joyne in a Lease and the Lessee doth wast they shall joyne in an Action of Wast and Tenant for life shall recover the Free-hold and the first Lessor the damages which proves that the property of the trees is in him As to 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 sayes That the Lessor shall recover damages for the Wast that proves sufficiently 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 Wast leaving 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 Marlebridge the Lessor shall recover damages for the houses c. which are wasted c. and yet a man cannot inferre thereupon that therefore the Lessee hath no Interest or property in them and such interest hath he in the trees notwithstanding the words of the Statute which is contrary to this 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 Chiefe Justice The Lessor hath no greater property in the trees then the Commoner hath in the soile Walmesley 2. H. 7. 14. and 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 Wast 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 Gravell and trees 42. H. 3. If a Prior licence the Lessee to cut trees the same shall discharge him in Wast brought by the Successour But if the Lessee cutteth down the trees and then the Prior doth release unto him the same shall not barre the Successour and so is 21. H. 6. Also he cited Culpepers case 2 Eliz. and 44. E. 3. Statham and 40. Ass 22. to prove that the Lessor shall have the Wind-falls If a stranger cutteth down trees and the Lessee bringeth an Action of Trespasse he shall recover but according to his losse 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 Lessee doth cut them down that he shall have the trees and the Lessor shall 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 Piscarie in the land of another man the land adjoyning is as it were a servant viz. to drie the Nets So if one have conduit-pipes lying in the land of ather he may dig the land for to mend the pipes and yet he hath no Interest nor Free-hold To that which was said That by the excepting of the trees 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 shall be wholly in the Lessee quia sublata causa tollitur effâctus And if the Lessee tieth a horse upon the land where the trees stood the Lessor may distraine 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 may grant the trees but so cannot the lessee and therefore he said That the property is in the lessor and not in the lessee Also if the lessor granteth them they passe without Atturnment But contrary if the lessor had but a Reversion in them Also if the lessor cutteth them down his Rent shall not be apportioned and therefore they are no part of the thing demised For 16. H. 7. and temps E. 1. Fitz. Waste in two or three places it is holden That if the Waste be done Sparsim in a Close or Grove the lessor shall recover the whole Then admit that the trees excepted are cut down sparsim if the Exception shall be good how shall the thing wasted be recovered and against whom quod nota Anderson Chief Justice did conceive that the Exception was void and that the Action was well brought and he said It was a Knavish and Foolish demise and if it should be good many mischiefs would follow which he would not remember Windham Justice was of the same opinion and he said The lessor might have excepted them and so take from the lessee his fire wood and Plough bote c. But the lessee could not grant his estate excepting the trees because he had but a speciall interest in them viz. for his fire-bote c. which shall go with the land Periam Justice agreed That as to such a speciall 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 are not let directly yet they are after a sort by a mean as annexed to the land and if the Action be brought against him who made the exception he cannot plead that they were let unto him and therefore he doubted of the exception Rodes Justice 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 Wind-falls and he did not much regard the Opinion of Statham But Anderson Chief Justice was of opinion that the lessor should have the Wind-falls Note the Case was not adjudged at this time Hill 29. Eliz. in the King's Bench 137 EXceptions were taken by Fuller to an Indictment upon the Statute of 1. Eliz. cap. 2. for the omitting of the Crossing of a Child in Baptising of him The Case was That a Minister out of his Cure at another Church viz. at Chelmesford in Essex did Baptize a Child without the Sign of the Crosse for which he was indicted The first Exception was That the Statute speaks of Ministers which do not use the administring of the Sacrament in such Cathedrall Churches or Parish Churches as he should use to administer the same that this was not the Parish Church in which he should use the same Suit Justice was of opinion That it was good notwithstanding that for otherwise the Statute might be greatly defrauded The words of the Statute are farther Or shall wilfully or obstinately standing in the same use any other Rule Ceremony Order Forme c. 2. He took another Exception upon those words For the omitting of the Crossing only is put and
Gardian pleaded that the plaintiff was within age And the plaintiff did maintain his Declaration that by the Custome of such a place An Insant of 18. yeares might bring an Action of Account against his Gardian in Socage and it was there holden to be no Departure I conceive that an Infant cannot have an Account against his Gardian before his full age But I conceive that they held that it was by Statute That an Infant should not have an Account against Gardian in Socage until he was of the age of 21. yeares Wray Chief Justice was of opinion that it was no Departure For he said it should be frivolous to shew the whole in his Declaration viz. That he was an Infant And that by Custome he might make a Covenant which should beinde him But quaere of his opinion for that many doubt of it Vide the Case 118. R. 2. Hill 29 Eliz. in the King's Bench 144 CONEY's Case AN Action of Trespass was brought against John Coney for digging of the plaintiffs Close and killing of 18. Coneys there The Defendant Pleaded as to all the Trespas but killing of two Coneys Not Guilty And as to them he said that the place where c. the Trespass is supposed is a Heath in which he hath common of pasture and that he found them eating of the Grass and that he killed them and carried them away as it was Lawfull for him to do c. Cook The Point is Whether a commoner having common of pasture may kill the Coneys which are upon the ground and he said hemight not And first he said it is to be considered what interest he who hath the Freehold may have in such things as are ferae Naturae Secondly What authority a commoner hath in the ground in which he hath common To the first he said that although such Beasts are ferae Naturae yet they are reduced to such propertie when they are in my ground by reason of my possession which I then have in them that I may have an action of Trespass against him who takes them as 42. E. 3. 24. If one have Deer in his Park another taketh them away he may have an action of Trespas forthe taking 12. H. 8. If a Forrester follow a Buck which is chased out of the Park or Forrest although that he who hunteth him killeth him in his own ground yet the Forrester or Keeper may enter into his ground retake the Deer for the propertie and possession which he hath in it by the pursuit 7. H. 6. 38. It is holden that if a wilde Beast go out of the Park then the owner of the ground hath lost the propertie in it Brook thereupon collects that he had a propertie in it whilest it was in his Park 18. E. 4. 14. It is doubted whether a man can have propertie in things which are ferae Naturae But 10. H. 7. 6. It is holden that an Account lieth for things ferae Naturae Vide 14. H. 8. 1. The Bishop of Londons Case and 22. H. 6. 59. as long as they are in his ground they are in his possession and he shall have an Action of Trespass for the taking of them and the Writ shall be damas suas by Newton And in the Register 102. It is Quare ducent's cuniculos suos precij c. cepit But it is said that he hath common there What then Yet he cannot meddle with the Wood Sand Grass but by taking of the same with the mouthes of his Cattel If he who hath the Freehold bring an action against the Commoner for entring into his Land If he plead Not guilty he cannot give in Evidence that he hath Common there 22 Ass A Commoner cannot put in Cattel to Agist So is 12. H. 8. And of late it was holden in this Court That where the Commoners did prescribe that the Lord had used to put but so many of his Cattel upon the Lands That it was a void prescription Godfrey Contrary That it is Lawfull for the Commoner to kill them And he agreed the Cases which were put by Cook And he said that the owner of the ground had not the very propertie but a kind of propertie in them 3. H. 6. and F. N. B. If the Writ of Trespass be Quare cuniculos suos c. The Writ shall abate And yet he hath a propertie in them or rather a possession of them I grant that against a stranger he might have this Action of Trespas but not against the Commoner for he hath a wrong done unto him by their being upon the Land and therefore he may kill them although he may not meddle with the Land because he hath not an Interest in it and yet he may meddle with the profit of it as 15. H. 7. A Commoner may distrain damage feasant 43. E. 3. Coneys dig the Ground and eate the Grass of the Commoner c. I grant that it is not lawfull for the Tenant for life for to kill the Coneys of him who hath a free Warren in the ground For if a man bring an Action of Trespas Quare Warranem suum intravit cuniculos suos cepit c. It is no Plea that it is his Free-hold L. 5. E. 4. In Trespass Quare clausum fregit cuniculos cepit The Defendant said that the plaintiff made a lease at will unto such a man of the Land and he as his Servant did kill the Coneys and it was holden no Plea and yet it is there said that by the grant of the Land the Coneys doth not pass but the reason as I conceive is because it tends to his damage and therefore that he may kill them And so in this Case 2. H. 7. and 4. E. 4. If I have Common of pasture in Land and the Tenant plougheth the Land I shall have my Action upon the Case in the Nature of a quod permittat 9. E. 4. If one hath Land adjoyning to my Land and levy a Nusans I may enter upon his Land and abate the Nusans So if a man take my goods and carrie them into his own Land I may enter thereupon and retake my goods So if a Tenant of the Freehold plough the Land and sow the same with Corn the Commoner may put in his Cattel and there whit eate the Corn growing upon the Land and may justifie the same because the wrong first begins by the Tenant So if a man do falsly imprison me and put me in his house I may break his house to get forth 21. H. 6. in Trespass All the Inhabitants of such a Town do prescribe to have Common in such a field every year after harvest And one froward fellow amongst the rest will not gather in his Corn within convenient time If the Townsmen put in their Cattel and they eate the Corn he hath no remedie for it And he asked what remedie the Commoner should have for the eating of the Grass which his Cattel is to have if he
Eliz. in the Common Pleas. 146 LONDON doth prescribe to have a Custom That after Verdict given in any of the Sheriffs Courts or such like Court there that the Maior may remove any such Suit before himself and as Chancellor secundùm bonam sanam conscientiam moderate it and it was moved whether it were a reasonable custom or not because that after tryal by ordinary course at Law he should thereby stay judgment Gaudy Justice It ought to be before judgment otherwise it cannot be for the Statute of 4. H. 4. is that judgment given in any Court shall not be reversed but by Error or Attaint Vide Rastal Tit. Judgment Mich. 28. Eliz. in the Common Pleas. Rot. 2619. 147 GREENE and HARRIS Case IN an Ejectione firme upon a special Verdict it was found that one John Brenne was seised of a Manor where there were Copyholders for life and by Indenture leased a copyhold called Harris Tenure parcel of the Land in question to Peter and John Blackborow for eight years to begin after the death of Brenne his Wife and by the same Indenture leased all the Manor to them as before The Copyholder did surrender and Brenne granted a copy to hold according to the custom of the Manor Brenne and his Wife died So as the lease of Blackborow was to begin Peter entred and granted all his Interest unto a stranger and died John entred into the whole as Survivor and made a lease thereof to the Plaintiff and the Copyholder entred and he brought the action Shuttleworth for the plaintiff The question is whether the plaintiff shall have Harris Tenure as in gross or as parcel of the Manor and he conceived that because it is named by it self that it shall pass as in gross for so their intent appeareth to be In 33. H. 8. Dyer 48. A Feoffment was made of a Manor to which a Villein was Regardant by these words viz. Dedi unam acram c. And further Dedi concessi Villanum meum and there it was holden that the Villein should pass as in gross and that they were several gifts although there was but one Deed. The same Law shall be of an Advowson appendant 14. and 15. El. Dyers Husband and Wife were joint-tenants in Fee of a Manor out of which the Queen had a Rent of twenty pound per annum and she by her Letters patents in Consideration of Money paid by the Husband did give grant release and remise unto the Husband and his heirs the said twenty pound Rent habendum percipiendum to him and his heirs The Husband did devise the Rent unto another and his heirs and dyed There it is debated whether the Wife should pay the Rent or not and it was holden that she should pay it for the deed having words of grant and release it shall be referred to the Election of the Husband and for his best avail how he will take it and there is no necessity that the Rent be extinguished in his possession for it is a maxime in Law that every grant shall be taken beneficially for the grantee so is it if it contain words of two intents he may take that which makes best for him 21. and 22. H. 6. A deed comprehending Dedi concessi was pleaded as a Feoffment In 5. E. 3. A Rent issuing out of Lands in Fee was granted to Tenant by the courtesie to have and to hold to him and his heirs It shall not be taken as extinct but the Rent shall go to his heires although he himself could not have it Then in our Case because it is more beneficial for the Termor he shall have it in gross And so he shall avoid the Estate of the Copyholder afterwards and here is an Election made by Peter so to have it by the grant of his Interest over Our Case is not like unto the Case of 48. E. 3. 14. Where a Cessavit was brought supposing that the House was holden of the Plaintiff by five Shillings and the Defendant pleaded that the Ancestor of the Plaintiff by his deed which he shewed forth gave the house to him and a shop which are holden by one intire service and demanded judgment c. And there it was holden that that deed did not prove but that the shop might be parcel of the house and not a shop in gross by it self And there Finchdon saith That if a man grant the Manor of F. to which an Advowson is appendant and the Advowson of the Church of F. so as it is named in gross yet it shall pass as appendant I yeild to that for there it is not more beneficial for him the one way or the other as it is in our Case It may be perhaps objected That the Plaintiff here shall not recover at all for the cause alleadged in Plo. Comm. 424. in Bracebridges Case because that the action is brought for a certain number of Acres as one hundred Acres and it is found that the Plaintiff hath right but to a moyty of them But it hath been ruled against that viz. that he shall recover Walmesley Sergeant contrary Notwithstanding that this Copy-hold be twice named yet it shall pass as parcel of the Manor and not as a thing in gross and there is but one Rent one Tenure and one reversion of both 45. E. 3. A Fine was levyed of a Manor unto which an Advowson was appendant wherein a third part was rendred back to one for life with divers Remainders over And so of the other two parts with the advowson of every third part as abovesaid and there it is debated who shall have the first avoidance And it is holden notwithstanding the Division as aforesaid and the naming of one before the other that they are all Tenants in common of it So as if they cannot agree to present that Lapse shall incurre to the Bishop and there no Prerogative is given to him who is first named nor any prejudice to the last named for being by one Deed it shall passe uno flatu 14. H. 8. 10. A Lease was made for a year Et sic de anno in annum c. And there it was debated whether it were a severall Lease for every year and it was ruled That an Action might be brought supposing that he held for one and twenty years if in truth by force of the same Demise the Lessee occupy the Land so long And if I by my Deed grant unto A. and B. the services of I. D. and by the same Deed the services of I. S. are also granted unto them they are Joyn-tenants of the Services or Seignories So if I lease a Manor reciting every parcell of the Land of the Manor for the whole consists in severall parcels In 33. H. 8. before remembred It is said That the Advowson shall be appendant if the whole Manor be granted c. But if it be admitted that there be severall Leases and that it passeth as a thing in grosse
yet in the interim during the life of Brenne and his wife it is one entire Manor For if Blackborow had levied a Fine thereof before entry his Interest in the Land had not passed And if a Fine be levied of the Manor and the Conusee render back part to one for life and another part to another for life the remainder of the whole to a third until the Two enter it is one entire Manor in the hands of the Conusee If I devise that my Executors shall sell such Lands which are parcell of a Manor and dye untill they sell it remains parcell of the Manor So if the heir selleth the Manor that Land shall passe for it is but executory and remains parcell untill it be executed Wherefore in the principall Case here the Copy-hold is good The reason of the Case 33. H. 8. Dyer 48. is because before the grant the advowson was not appendant to that acre onely but to the whole Manor and to that acre as parcell of it Also he said that the Copy-hold shall be good against the Lessee being granted before execution of his term when as the Manor was entire For he who hath a Manor but for one year may grant Copies and the grant shall be good to bind him in the Reversion And if one recovereth an acre parcell of a Manor before execution it is parcell of the Manor and by grant of the Manor shall passe Periam Justice But yet now being executed by the death of the Lessor and his wife it is no part of the Manor if they be severall Leases Walmesley But the Defendant is in by Custome by one who is Dominus pro tempore Anderson Chief Justice The Case of 48. E. 3. is like our Case And I conceive clearly here is no severance but if there had been any severance it had been otherwise but I doubt of the other point Periam Justice In 13. H. 4. the difference is taken betwixt a grant of a Manor una cum advocatione and a grant of a Manor et ulterius a grant of the Advowson In 14. Eliz. Dyer 311. in the Case of the Lord Cromwell and Andrews it is moved If a man bargain and sell give and grant a Manor and Advowson to one and afterwards levieth a Fine or inrolleth the Deed Dyer held that the Advowson shall passe by the Bargain and Sale as in gross before that the Deed be enrolled But I conceive that it cannot pass if the Deed be not enrolled and then it shall pass as appendant by reason of the intent of the parties and so in this Case And for the last matter I conceive very strongly that when the Lease which is executory takes effect that it shall avoid the Copy-hold for although at once viz. during the expectancy of the said Lease to begin at a day to come the Copy-hold be not extinct yet now he may say That all times as in respect to him the Copy-hold Custome was broken I hold That a Tenant in Dower shall not avoid a Copy-hold made during the Coverture and so it hath been adjudged in the Kings Bench. But I conceive there is a difference betwixt that Case and the Case in question for in that Case the title of the wife to have Dower is not consummate till the death of the Husband Anderson Chief Justice I can shew you an Authority That if I grant unto you such Land and the Manor of D. there the Land shall pass as parcell of the Manor Periam True there for it doth enforce the first grant But here the intent of the parties doth appear and the same is to be respected Anderson But their intent ought to be according to the Law as in 19. H. 8. it is holden it shall be in a Devise Anderson upon the Argument of this Case said That if a Warranty be to a whole Manor and also to an Advowson the party cannot have Two Warrantia Chartae Periam If he had further said in the Deed That his intent was that it should be severall the same had altered the Case Anderson No truely because his intent did not stand with the rule of Law As if a man devise that his Lands shall be sold and doth not say by whom it is void and yet the intent is expressed If the Lease had been by severall Deeds Periam said The Copy-hold had beene severed Windham denied that If both the Deeds bee delivered at one time It was adjourned Hill 29. Eliz. In the Common Pleas. 148 AN Information was upon the Statute of 5. 6. E. 6. for buying of seed Corn having sufficient of his own and not bringing so much unto the Market of his own corn and a generall issue was found upon it And it was delivered for Law to the Jury by the Justices That a Contract in Market for corn not in the Market or which was not there that day is not within the Branch of the Statute But if corn or graine be in the Market although that the Contract be made in a house out of the Market and delivered to the Vendee out of the Market yet it is within the Statute And in the Argument of that Case Anderson said That the Market shall be said The place in the Town where it hath used to be kept and not every place of the Town And a Sale in Market overt in London ought to be in a Shop which is open to the street and not in Chambers or inward rooms otherwise the property is not altered And so it is of all Statutes in open Markets And the Recorder of London said That such was their Custome in London Hill 29. Eliz. in the Common Pleas. 149 It was holden by Anderson chiefe Justice That if one deviseth Lands to the heirs of I. S. and the Clerk writes it to I. S. and his heirs that the same may be holpen by averrment because the intent of the Devisor is written and more And it shall be naught for that which is against his intent and against his will and good for the residue But if a Devise be to I. S. and his heirs and it is written but to the heirs of I. S. there an averrment shall not make it good to I. S. because it is not in writing which the Statute requires anâ so an averrment to take away surplusage is good but not to encrease that which is defective in the Will of the Testator Mich. 29. Eliz. in the Common Pleas. 150 A Feoffment was made unto A. unto the use of him and his wife dis-punishable of Wast during their lives one died and the Survivor committed Wast It was the opinion of the whole Court that an Action of Wast would not lie by him in the Reversion for it is a Priviledge which is annexed to the Estate which shall continue as long as the Estate doth continue Mich. 29 Eliz. in the Common Pleas. 151 A. grants annualem redditum out of Lands in which he hath nothing The opinion of
the Court was That it is a good grant of an Annuity by these words annualem redditum But whether the Husband shall have a Writ of Annuity after the death of the wife for an Annuity during the Coverture they were in some doubt because it is but a thing in Action as is an Obligation Otherwise were it of a Rent which she had for life Note in pleading for a Rent he shall plead That he was seised c. Mich. 29. Eliz. in the Common Pleas. 152 WINKFEILD'S Case Winkfeild devised Land in Norfolk to one Winkfeild of London Goldsmith and to his heirs in Fee And afterwards he made a Deed of Feoffment thereof to divers persons unto the use of himselfe for life without impeachment of waste the Remainder unto the Devisee in fee. But before he sealed the Deed of Feoffment he asked one if it would be any prejudice to his Will who answered No. And the Devisor asked again if it would be any prejudice because he conceived that he should not live untill Livery was made And it was answered No. Then he said that he would seale it for his intent was that his Will should stand And afterwards Livery was executed upon part of the Land and the Devisor died Rodes and Periam Justices The Feoffment is no Countermand of the Will because it was to one person but perhaps it had been otherwise if it had been to the use of a stranger although it were not executed Anderson Chiefe Justice and others the Will is revoked in that part where the Livery is executed And he said It would have been a question if he had said nothing And all the Justices agreed That a man may revoke his Will in part and in other part not And he may revoke it by word and that a Will in writing may he revoked by word Periam said It is no revocation by the party himselfe but the Law doth revoke it to which Windham agreed But he said That if the party had said nothing when he sealed the Feoffment it had been a revocation of the party and not of the Law Periam If the Witnesses dye so as he cannot prove the words spoken at the sealing of the Feoffment the Feoffment will destroy the Will and so he spake to Anderson who did not deny it All this was delivered by the Justices upon an Evidence given to a Jury at the Barre Mich. 29. Eliz. in the Common Pleas. 153 NOte That it was said by Anderson Chiefe Justice That if one intrude upon the possession of the King and another man entreth upon him that he shall not have an Action of Trespasse for he who is to have trespasse ought to have a possession and in this case he had not for that every Intruder shall answer the King for his time and therefore he shal not answer to the other party To which Walmesley and Fenner Serjeants agreed Periam doubted of it for he conceived That he had a possession against every stranger Snagg Serjeant conceived That he might maintain an Action of Trespasse but Windham and Rodes Justices were of opinion that he could not maintain Trespass Walmesley he cannot say in the Writ Quare clausam frâgit c. Rodes vouched 19. E. 4. to maintain his opinion Mich. 29. Eliz. in the Common Pleas. 154 NORRIS and SALISBURIE'S Case IN an Action of Debt upon a Bond the Case was this Norris was possessed of wools for which there was a contention betwixt the Defendant and one A. And Norris promised A. in consideration that the goods were his and also that he should serve processe upon Salisbury out of the Admiral Court that he would deliver the goods to A. And afterwards he delivered the goods to Salisbury the Defendant who gave him Bond with Condition to keep him harmlesse from all losses charges and hinderances concerning and touching the said wools Afterwards A. served processe upon him and he did not deliver to him the goods for which A. brought his Action upon the Case against Norris who pleaded That he made no such promise which was found against him And afterwards Norris brought an Action of Debt upon the Bond against Salisbury because he did not save him harmlesse in that Action upon the Case And the opinion of the whole Court was That the Action of Debt would not lie because that the Action upon the Case did not concern the wools directly for the Action is not brought but for breach of the promise And that is a thing of which the Defendant had not notice and it was a secret thing not concerning the wools but by circumstances and so out of the Condition Anderson Chiefe Justice said That if A. promise B. in Consideration that B. is owner of goods and hath them to deliver them to C. the same may be a good consideration yet he somewhat doubted of it But Walmesley did affirme it to be a good Consideration Mich. 29 Eliz in the Common Pleas. 155 IT was holden by the whole Court That in an Action of Trespasse It is a good plea in barre That the Plaintiffe was barred in an Assize brought by him against the Defendant and issue joyned upon the Title But otherwise if it were upon the generall issue viz. Nul tort nul disseisin For then it might be that the Plaintiffe was never ousted nor disseised and so no cause to recover In which case it was no reason to put him from his Writ of Right Mich. 29. Eliz. in the Common Pleas. Intratur Mich. 27. Rot. 1627. 156 BRAGG'S Case A Woman having cause to be endowed of a Manor in which are Copy-holders doth demand her Dower by the name of certain Messuages certain Acres of land and certain Rents and not by the name of the third part of the Manor and she doth recover and keeps Courts and grants Copy-holds It was holden by the whole Court that in such Case that the Grants were void for she hath not a Manor because she hath made her demand as of a thing in grosse Otherwise if the demand had been of the third part of the Manor for then she had a Manor and might have kept Courts and granted Copies And the pleading in that Case was That she did recover the third part of the Manor per nomen of certain Messuages and Acres and Rents which was holden to be no recovery of the third part of the Manor Hill 29. Eliz. in the Common Pleas. 157 NOte it was holden for Law That the Justices may increase but not decrease damages because the party may have an Attaint and so is not without remedy But note contrary by Anderson and Periam Justices Hill 39. Eliz. in the Common Pleas. 158 SErjeant Fenner moved this Case That the Lord of a Manor doth prescribe That if the Tenant do a Rescous or drive his Cattel off from the Land when the Lord comes to distrain that the Tenant shall be amerced by the Homage and that the Lord may distrain for the same Anderson
upon Evidence to the Jury the Case appeared to be viz. That there was Lessee for years and afterwards the Lessor made a Deed of Feoffment in which were words of Confirmation and in the end of the Deed there was a special Letter of Atturney to make Livery to the Lessee for years and his heirs And it was agreed by all the Justices That the Lessee for years had Election to take the same by way of confirmation or by Feoffment and that the Law doth suspend and expect untill he hath declared his pleasure And it was further adjudged That when he hath made his Election to take it by Livery that it shall be a Feoffment ab initio and by the delivery of the Deed in the mean time nihil operatur Mich. 31. Eliz. in the Common Pleas. 171 A Copy-holder did alledge the custome to be That the Lord of the Manor might grant Copies in Remainder with the assent of the Tenants and not otherwise and that Copies in remainder otherwise granted should be meerly void The question was Whether it were a good custome The Justices did not deliver any opinion in the point But Walmesley Serjeant said That it was a void custome for a Copy-hold Estate is an estate of which the Law doth not take notice and Copy-holders are meer Tenants at will by the common Law and therefore to say That he who hath not an interest should have me at his pleasure aswell as I who am interessed should have him at my pleasure is preposterous and repugnant to reason as 2. H. 4. 27. A custome that the Commoner shall not use his Common before that the Lord hath put in his Cattel is not good for the Commoner hath an interest in the Common which is not reasonable to be restrained at the pleasure of another and 19. Eliz Dyâr 257. A custome that a man shall not demise or lease but for six years is a void custome Shuttleworth Serjeant contrary and he said That the reason that this Copy-hold is not within Littletons Estates by Copy is no reason for by the same reason you may overthrow all Copy-hold Estates And he said That this custome might have a lawfull beginning and it seems to bee grounded upon the reason of the common Law that a remainder should not be without the assent of the particular Tenant and therefore it is a good custome And so is the custome that a Woman shall not have Dower if she do not claim it within a year and a day And a custome that a free Tenant shall not alien without a surrender in the Court of the Lord is a good custome It was adjourned 31. Eliz. in the King 's Bench. 172 Sir RALPH EGERTON'S Case UPon a speciall Verdict the Case was this A man being Tenant for life in the right of his Wife he made a Deed of Feoffment Habendum to the Feoffee and his Heirs ad solum opus usum of the Feoffee and his Heirs for the life of the Wife and the Court was cleer of opinion that it was a forfeiture because the Habendum is absolute and the use is another clause and although he doth not limit the use but for life yet the Law limits the remainder of the use to the party who maketh the Feoffment Trinit 29. Eliz. in the King 's Bench. 173 MAYE'S Case IF a man sendeth a Letter by a Carrier to a Merchant for certain Merchandizes to send them to him by the Carrier receiving certain monies and the Merchant sendeth the Goods by the Carrier without the receipt of the Money the same shall not bind the Buyer as it was holden by the Court because it was but a conditionall Bargain and it was the folly of the Merchant to trust the Carrier and therefore in that Case the Vendee was admitted to wage his Law And so if one writeth for Wares and the party sends them by the same Carrier yet if the Carrier doth not deliver them the other may wage his Law in such Case Mich. 30. Eliz. in the Common Pleas. 174 HALTON'S Case THE case was That a Recognizance was acknowleged before Sir N. Read one of the Masters of the Chancery The Recognizee died before the same was enrolled And whether it might be enrolled at the Petition of the Executors of the Recognizee was the question And it was agreed by all the Justices That the same might be enrolled for it was like unto the Conusans of a Fine before a Judge which might be removed out of the hands of the Judge by a Certiorari and yet it is no record untill it be perfected And at that time it was doubted whether the Chancery might help a man who was a purchaser for valuable consideration where there wanteth the word heirs in the Deed of purchase But it was agreed by all the Justices That after a Fine is levied of Land That the Chancery may compell the Tenant to attorne Trinit 31. Eliz. in the Common Pleas. Rot. 1704. 175 BLAGROVE and WOOD'S Case IN Trespass the Question was If a Copy-hold was surrendred or not And the custome was alledged to be That a Copy-holder might surrender out of the Court to the Steward out of the Manor And the Steward was retained onely by word but had no Patent Walmesley He may be Steward by word well enough But Windham and Anderson held That he might be Steward by word onely in possession that is when he holds a Court in possession But he cannot be Steward out of Court without a Patent because he is then out of possession And therefore it was the opinion of the whole Court That the surrender out of Court to the Steward by word was not good Hill 36. Eliz. in the Common Pleas. 176 THe Summons of a Copy-holder to appear at the Lords Court was at the Church and thereupon the Copy-holder did not appear And it was the opinion of the whole Court that the same was no cause of forfeiture of the Copy-hold because it was not especially shewed to be the Custome And it shall be hard to make it a Forfeiture for perhaps the Copy-holder had not notice of it And to that purpose was vouched the Lord Dacres and Harlestoâs case And they held that notice ought to be given to the person and the Refusall must be willfull for if a Copy-holder be demanded his rent and he saith that he hath it not the same is no forfeiture but the deniall ought to be a wilfull deniall and so it was said to have been adjudged in one Winters Case Trinit 1. Jacobi in the Common Pleas. Rot. 854. 177 SAPLAND and RIDLER'S Case AFter long Arguments on both sides It was adjudged by all the Justices in this case That where the Custome of a Copy-hold Manor was to admit for life and in remainder for life at any time when there was but one Copy-holder for life in possession and during the minority of the Heir within fourteen years the Gardian in Socage in his own name
did admit a Copy-holder in Remainder for life That the same was a good admittance according to the Custome And that he was a sufficient Dominus pro tempore as to this purpose Although it was objected by Walmesley That the Gardian is but Servus and not Dominus But because it was agreed that he had a lawfull Interest the admittance was good and so it was adjudged 33. Eliz. In the Common Pleas. 178 SHIPWITH and SHEFFIELD'S Case THe Custome of a Copy-hold Manor was That a feme Covert might give Lands to her Husband And if it were a good Custome or not was the Question Fleetwood The Custom is good and vouched 12. E 3. That in York there is such a custome That the Husband might give the Land of his own purchase to his wife during the Coverture and it is a good Custome That an Infant at the age of fifteen years may make a Feoffment 29. E. 3. and the same is good at the Common Law and yet the same all began by custome But the Court was of opinion That the Custome is unreasonable because it cannot have a lawfull Commencement And Anderson Chiefe Justice said That a Custome that an Infant at the age of seven years might make a Feoffment is no good custome because he is not of age of discretion And in this case at Barre It shall be intended that the wife being sub potestate viri did it by the Coherison of her Husband The same Law is of a Custome That the wife may lease to her Husband Fleetwood urged That the custome might be good because the wife was to be examined by the Steward of the Court as the manner is upon a Fine to be examined by a Judge To which the Court said nothing 31. Eliz. in the King's Bench 179 AN Action upon the Case upon an Assumpsit was brought And the Plaintiff layed his Action That such a one did promise him in respect of his labour in another Realme c. to pay him his contentment And he said That Twenty five Pound is his contentment and that he had required the same of the Defendant Cook moved in arrest of Judgement it being found for the Plaintiffe upon Non Assumpsit pleaded that no place was alledged where the contentment was shewed And the opinion of the Court was against him for Gawdy and Wray were of opinion that he might shew his contentment in any Action and so it is where it is to have so much as he can prove he might prove it in the same Action Cook said That it had been moved in stay of Judgement in this Court upon an Assumpsit because the request was not certain And that case was agreed by the Justices because the request is parcell of the Assumpsit and the entire Assumpsit together in such case is the cause of the Action but in this case that he should content him is not the cause of the Assumpsit but only a circumstance of the matter and it was resembled to the Case of 39. H. 6. where a Writ of Annuity was brought for Arrerages against an Abbot pro consilio c. And the Plaintiffe declared that the Councel was ad proficuum Domus and was not alledged in certain and it was holden that the same was not materiall although it were uncertain because it was but an induction and necessary circumstance to the Action And so the Plaintiffe recovered and had Judgement Mich. 29 Eliz. in the King 's Bench. 180 THE Statute of 23. Eliz. cap. 25. is Quod non licuit alicui to engrosse Barley c. and in the Statute there is a Proviso That he may so do so as he convert it into Malt. The question was If in an Information upon that Statute That the Defendant had converted it to Malt he might plead the generall Issue Not guilty and give in Evidence the speciall matter or whether he ought to plead the speciall matter Clench Justice He may plead Not guilty c. for the Proviso is parcel and within the body of the Statute as 27. H. 8. 2. where upon an Information upon the Statute of Farmors it is holden by Fitzherbert That the Vicar may plead Non habuit seu tenuit ad firmam contra formam Statuti c. and yet the Statute in the premises of it restrains every Spirituall Person to take in Farme any Lands c. and afterwards by a Proviso gives him liberty to take Lands for the maintenance of his house c. As upon the Statute of R. 2. If he do plead That he did not enter contra formam Statuti he may give in Evidence that he entred by Title as that his father was seised and died and the same is not like unto the condition of a Bond for that is a severall thing But the Proviso and the Statute is but one Act. Mich. 29. Eliz. in the King 's Bench. 181 NOte It was said by Master Kemp Secondary of the King's Bench That there is a Court within the Tower of London but he said That it was but a Court Baron and said That he can shew a Judgement That no Writ of Error lieth of a Judgement given there And it was a question Whether Process might be awarded to the Lieutenant of the Tower for Execution upon a Judgment given in the Kings Bench because the Defendant was removed and dwelt within the Liberty of the Tower And it was said It could not but the Writ ought to be awarded to the Sheriffs of London and if they returne the Liberties of the Tower then a Non omittas shall be awarded But some Counsellors said That although a Non omittas be awarded yet the Sheriffs durst not go unto the Liberties of the Tower to serve the Process 2 Jacobi in the Common Pleas. 182 The Lady STOWELL'S Case IT was adjudged in this Case That the wife who is divorced causa adulterii shall have her Dower 3. Jacobi in the Common Pleas. 183 WARNER'S Cafe LEssee for twenty years doth surrender rendring rent during the term It was adjudged a good rent for so many years as the term might have continued 3. Jacobi in the King 's Bench. 184 WHITLOCK and HARTWELL'S Case TWO Joint-Tenants for life the one demised and granted the moyty unto his companion for certain years to begin after his death Adjudged void because it is but a possibility And so is it of a Covenant to stand seised to the use c. as it was adjudged in Barton and Harvey's Case 37. Eliz. 3. Jacobi In the Kings Bench. 185 PINDER'S Case A. devised lands in Fee to his son and many other lands in tail And afterwards he said I will that if my son die without issue within age that the lands in Fee shall go to such a one Item I will that the other lands in tail shall go to others and doth not say in the second Item if the son dieth without issue within age It was adjudged That the second Item should be without
condition 3 Jacobi in the Star-Chamber 186 RUSWELL'S Case A Man took away Corne in the night time to which he had a right and was punished for a Riot in the Star-Chamber because of his company only Hillar 3. Jacobi 187 KINGSTON and HILL'S Case AN Action upon the Case was brought for saying these words viz. Thou art an arrant Papist and it were no matter if such were hanged and thou and such as thou would pull the King out of his Seat if they durst Adjudged that the words were not actionable Et quod querens nihil capiat per Billam Pasch 3 Jacobi in the Common Pleas. 188 NOte It was holden by the Court That if a Fierifacias go to the Sheriffe to do Execution and he levieth the money and delivereth the same to the party yet if it be not paid here in the Court the party may have a new Execution and it shall not be any Plea to say That he hath paid the same to the party for it is not of Record without bringing of the money in Court Vide 11. H. 4. 50. ar Pasch 3. Jacobi in the Common Pleas. 189 DUKE and SMITH'S Case NOte That if he in the reversion suffer a recovery to divers uses his Heirs cannot plead That his father had nothing in the Land at the time of the recovery for he is estopped to say That he was not Tenant to the Praecipe And it was agreed âThat it was a good recovery against him by estoppel Quaere this case Mich. 3. Jacobi in the King's Bench 190 BIRRY'S Case BIrry was committed by the High Commissioners and removed by Habeas corpus into the Kings Bench They returned the Writ with a Certificate That they did commit him for certain causes Ecclesiasticall which generall cause the Court did not allow of They certified at another time That it was for unreverent Carriage and sawcie Speeches to Doctor Newman The Court also disallowed of that cause Birry put in Bail to appear de die in diem and was discharged It was holden That if Birry did not put off his Hat to him or not give him the wall the same were not sufficient causes for them to commit him And it was agreed by the whole Court That whereas the said Commissioners took Bonds of such as they cited to appear before them to answer unto Articles before that the party had seen the Articles that such Bonds were void Bonds Mich. 3. Jacobi in the King 's Bench. 191 ANN MANNOCK'S Case ANN Mannock was indicted in Suffolk upon the Statute of 1. El. cap. 2. for not coming to Church twelve Sundayes together which Indictment was removed into the Kings Bench and Exceptions taken unto it 1. That the Statute is That all Inhabitants within the Realme c. and it is not averred in facto that she did inhabit within the Realme and the Exception was disallowed for if it were otherwise it ought to be shewed on the Defendants part The second Exception That by a Proviso of the Statute of 28. Eliz. cap. 6. it is ordained That none shall be impeached for such offence if he be not indicted at the next Sessions and it appears by the Indictment That the Offence was almost a year before the Indictment and in the mean time many Sessions were or debuerunt to have been And that Exception was also disallowed for perhaps the truth is That there was not any Sessions in the mean time although there ought to have been The third Exception That the Indictment was That she was indicted Coram A. B. sociis Justices of Peace and it doth not name them particularly The Exception was disallowed for that it doth not appear that there were any other Justices there and what was their names And therefore it was said That it differs from the Case of 1. H. 7. of a Fine levied Câraâ A. B. âââiis suis The fourth Exception was That the words of the Statute are Ought to abide in the Church till the end of Common Prayer Preaching or other Service of God in the Disjunctive and the Indictment was in the Conjunctive The Exception was disallowed for although the words are in the disjunctive yet a man cannot depart so soon as the Service is ended if there be preaching but he ought to continue there for the whole time Pasch 4. Jacobi in the King 's Bench. 192 AN Enfant did acknowledge a Statute and during his Nonage brought an Audita querela to avoid the Statute and had judgment The Conusee at the fall age of the Enfant brought a Writ of Error and reversed the judgment given in the Audita querela and the Enfant the Conusor prayed a new Audita querela but it was denyed by the whole Court Mich. 4. Jacobi in the Common Pleas. 193 PETO and CHITTIE'S Case IT was adjudged in the Court of Common Pleas in this Case That concord with satisfaction is a good plea in Barre in an Ejectione firme Mich. 5. Jacobi in the King 's Bench. 194 TWo Men were bound joyntly in a Bond one as principal and the other as surety the principal dyed Intestate the surety took Administration of his goods and the principal having forfeited the Bond the surety made an agreement with the Creditor and took upon him to discharge the Debt In Debt brought by another Creditor the question was upon fully administred pleaded by the Administrator If by shewing of the Bond and that he had contented it with his own proper Mony whether he might retain so much of the Intestates estate and it was adjudged that he might not For Flemming Chief Justice said that by joyning in the Bond with the principal it became his own Debt Pasch 5. Jacobi in the Common Pleas. 195 TAYLOR and JAME'S Case IN a Replevin by John Taylor against Richard James for taking of a Mare and a Colt in Long Sutton in a place called H. in the County of Somerset The Defendant did avow the taking and shewed That Sir John Spencer was seised of the Manor of Long Sutton whereof the place where c. is parcel and that he and all those whose estate he hath in the said Manor c. have had all Estrayes within in the said Manor and shewed that the Bailiff of Sir John Spencer seised the said Mare and Colt as an Estray and proclaimed them in the three next Market Towns and afterwards the Baiâiff did deliver them to the Defendant to keep in the place where c. And if any came and challenged them and could prove that the same did belong to him and pay him for their meate that he should deliver them unto him and then shewed how that the Plaintiff came and claimed them for his own and because he would not prove that they did belong unto him nor pay him for their meate c. he would not deliver them upon which plea there was a Demurrer in Law After argument by the Serjeants Cook Chief Justice said that it was a
commit his house to his servants and the one doth assent to the Livery and departeth the house if the other do continue there and Livery be made it is no good Livery of Seisin Mich. 6. Jacobi in the Kings Bench. 216 IT was holden for Law in this Court That if a man do offend against any Penal Law the Informer ought to begin his Suit within one year after the Offence done otherwise he shall not have the moity of the Penalty And if the Informer hath put in his Information although that the party be not served with Process to answer it yet the same doth appropriate the Penalty unto him Hill 6. Jacobi in the Common Pleas. 217 PEREPOYNT'S Case PErepoynt procured one to convey the daughter of a Gentleman and to marry her to a Ploughman in the night and procured a Priest to marry them and was there present for which matter he was excommunicate by the Ordinary of the Diocess and after absolution he was for the same committed to Prison by the High Commissioners It was holden by the Court That matters concerning Tithes Marriage or Testaments are not examinable before them yet because that he had suffered imprisonment for such things and that neither the Statute of 23. H. 8. nor the Cannon doth extend to the High Commissioners it was resolved That if upon submission to the Commissioners they would not set him at liberty that this Court would do it Mich 6. Jacobi in the Star-Chamber 218 IT was resolved by the whole Court of Star-Chamber That if a man doth assist one who is a Plaintiffe in that Court that it is not maintenance because that it is for the benefit and advantage of the King But if a man do assist an Informer in another Court in an Information upon a Penall Law the same is such a Maintenance for which he may be punished in this Court 6. Jacobi in the Common Pleas. 219 IT was adjudged in this Court That if Land which was sowed be leased to one for life the Remainder to another for ãâã That if the Tenant for life dieth before the severance of the Corn ãâ¦ã in the Remainder shall have the Corn. Mich. 6. Jacobi in the King 's Bench. 220 THE Lessee of a Copy-holder was distrained for rent behind in the time of his Lessor and the Lessee did assume and promise That he would satisfie the Lord his rent if he would surcease the suing of him It was adjudged by the whole Court That it was a good Assumpsit and a good consideration Mich. 7. Jacobi in the King 's Bench. 221 PIGGOT and GODDEN's Case NOte It was in this Case agreed by the whole Court and so adjudged That in an Ejectione firme a man shall not give colour because the Plaintiffe shall be adjudged in by title Mich. 7. Jacobi in the King 's Bench. 222 TWo Tenants in Common brought an Action upon the Case for stopping of a water course against a Stranger whereby the profits of their Lands were lost and it was shewed in pleading that the water had run time out of minde ante diem Obstructionis and Judgment was given for the Plaintiffs And two Exceptions were taken by Coventry First that Tenants in Common ought to have several Actions and not have joyned Secondly that the Custom ought to have been pleaded to continue ante usque die Obstructionis and both the Exceptions were dissallowed by the Court and it is not like the Case of Falsefails in which Action they must join because the same is in the Realty Mich. 7. Jacobi In the King 's Bench. 223 CROSSE and CASON's Case AN Action of Debt was brought upon due Obligation the condition of which was that the Obligee the 18. of August anno 4. Jacobi should go from Algate in London to the Parish Church of Stow-Market in Suffolk within 24. hours and the Obligee shewed that he went from Algate to the said place and because he did not shew in his Declaration in what Ward Algate was It was holden not to be good Mich. 7. Jacobi in the King 's Bench. 224 NOte That it was adjudged to be Law by the whole Court that if a man bail goods to another at such a day to rebail and before the day the Bailee doth sell the goods in market overt Yet at the day the Baylor may seise the goods for that the property of the goods was alwaies in him and not altered by the Sale in market overt Mich. 7. Jacobi in the Common Pleas. 225 ZOUCH and MICHIL's Case AN Enfant Tenant in tail did suffer a Recovery by his Gardian It was holden by the Court that the same should binde him because he might have remedy over against the Gardian by Action upon the Case But otherwise if he suffer a Recovery by Attorney for that is void because he hath not any remedy over against him as it was adjudged 4. Jacobi in Holland and Lees Case Pasch 8. Jacobi In the Common Pleas. 226 WILSON and WORMAL's Case IN an Evidence given to a Jury it was admitted without Contradiction that if judgment in an action of Debt be given against Lessee for years and afterwards the Lessee alieneth his Term and after the year the Plaintiff sueth forth a Scire facias and hath Execution That the Terme is not lyable to the Execution if the Assignement were made bona fide Also in that Cook Chief Justice said that if Lessee for years assignee over his Terme by fraud to defeat the Execution And the Assignee assigneth the same over unto another bona fide that in the hands of the second Assignee it is not lyable to Execution Also in this Case it was said for Law That if a Man who hath goods but of the value of 30. pound be endebted unto two Men viz. to one in 20. pound and to another in 10. pound and the Debtor assignes to him who is in his debt 10. pound all the goods which are worth 30. pound to the intent that for the residue above the 10. pound debt he shall be favourable unto him This Assignement is altogether void because it is fraudulent in part But Foster Justice said that it shall not be void for the whole but onely for the surplusage as Twynes Case C. 3. part 81. Quaere Pasch 8. Jacobi in the Common Pleas. 227 BRISTOW and BRISTOWE's Case IN an Action of Covenant the Case was this Lessee for 90. years made an Assignement for part of the Term viz. for 10. years and the Assignee covenated to repair c. The first Lessee devised the Reversion of the Term and dyed the Devisee of the Reversion brought an Action of Covenant against the Assignee for 10. years and the question was If the Devisee of the Reversion being but a Termor were within the Statute of 32. H. 8 of Conditions Secondly whether the Action would lye because no notice was given of the grant of the Reversion Dodderidge Serjeant to the first point said that this
therefore the Commoner shal be excluded But it will be objected that the Statute is that the Owners of the Ground may enclose But Sir Francis Barrington is not Owner for the Lord Rich is the Owner of the Ground I say that Sir Francis Barrington is the Owner for he hath the Herbage and the Trees so as he hath all the profit and he who hath the profit shall be said to have the Land it self and he vouched Paramour and Yardleys Case in Plow Com. Dyer 285. and 37. H. 6. 35. and 17. E. 4. 16. Also the Statute is in the disjunctive viz. the Owner or the Vendee and although he be not Owner of the soil yet he is Vendee of the Trees Secondly It will be objected that the same is not a general Law of which the Judges are to take notice and therefore he ought to plead it I hold it to be general enough of which you are to take knowledge although it be not pleaded he cited Hollands Case Thirdly It will be objected that by such general Law the particular interest of a private man shall not be destroyed To that I say that such general Statutes will include such particular interests and therefore the Case betwixt Sir Foulke Grevill and Stapleton was adjudged that where Willoughby Lord Brookes had Lands to him by Act of Parliament with authority to make Leases for one life and no more By the Statute of 32. H. 8. of Leases that authority is enlarged and he might make Leases for three lives Haughton Serjeant Although he be Owner of the profits he is not Owner of the soil and there is a difference betwixt the same and the soil And the Statute speaks of Trees growing in his own soil Foster Justice The Arbitrament the Assurance and the especial Act of Parliament is nothing to the purpose in this Case and to plead them was more then was needfull For by the Arbitrament and the Assurance the Commoner being a third person cannot be bounden in which he was not a party And by the special Act of Parliament he shall not be bound because the Act is against the Lord Rich and his Heirs so as a stranger shall not be bound by the Act And therefore upon the Statute of 18. Eliz. cap. 2. of Patents the Case was That the Queen made a Lease for years which was void for not reciting of a former Lease and afterwards she granted the Inheritance unto another And then came the Statute of 18. Eliz. which confirmed all Patents against her her Heirs and Successors by that Statute the Grantee in Fee was not bounden but he might avoid the Lease for years for the Statute is against the Queen and her successors and that case was adjudged But our case is without doubt as to that point for the right and interest of estrangers is saved by the Act then all rests upon the Statute of 22. E. 4. and I conceive that the same is a speciall Act and ought to be pleaded for it is not generally of all Woods but only of Woods in Forrests and Chases But admitting it to be a generall Act yet I conceive That it was not the meaning of it to exclude a Commoner and that appears fully by the later words of the Statute viz Without licence of c. which excludes only the Owners of the Forrest and it was not the meaning that he might inclose without the leave of the Commoner One thing hath troubled me in the Statute because it is said that before that time he could not inclose more then for 3. years so as before that statute he might enclose for 3 years as it seems without Licence and now by the Statute for 7 years Also for another cause I conceive that the Defendant shall not take advantage of the Statute as he hath pleaded for he hath pleaded that he did enclose and cut whereas the statute saies that he shall enclose after the Cutting so as I hold cleerely that he hath not pursued the authority of the Stat. for upon the St. of 35. H. 8. which is penned contrary to this Stat. scil that the Owner of the wood shall make enclosure and division for the CoÌmoner and then he is to cut I hold cleerly that after the felling he cannot make any enclosure Also admitting that by the Stat. the CoÌmoner shall be excluded I hold that by the Stat. of 35. H. 8. that that Stat. is repealed in that point for the Stat. of 35. H. 8. is That no man shall fell woods wherein Commoners have Interest by Prescription until he hath divided the fourth part so that the Authority if any were is restrained by that Stat. if he be a CoÌmoner by Prescription as he is in our Case But if it had been a Common by grant it had not been within the Clause of Restraint And Leges posteriores priores contrarias abrogant especially the Stat. being in the Negative as it is here For by a Negative Statute the CoÌmon Law shall be restrained otherwise if the Stat. were in the affirmative for these reasons I conclude That the plaintiff ought to have Judgment Warburton Justice contrary All the matter rests upon the Statute of 22. E. 4. First I hold that the same is a general act although it be particular in some things So you may say of all statutes which are particular in some one point or other I hold also That the Stat. of 22. E. 4. is not repealed in this point by the Stat. of 35 H. 8. because they were made to several purposes The one was for Forrests and Chases the other onely for other particular Woods And I hold that the CoÌmoner shall be excluded for otherwise the Stat. should be void and contrary viz. to give power to one to enclose and exclude all beasts and yet to permit another to put in his cattel And by the words of the Statute which exclude all beasts and cattell the Deer shall not be excluded or intended for they shall not be said beasts or cattel As in 30. E. 3. One who chaseth a cow in a Park shall be said within the Statute de Malefactoribus in Parcis And then if the authority of enclosure be not to exclude the Deer it shall be to exclude the cattell of the Commoner and other the like estrangers or otherwise it should be to no purpose As to that which hath been said That there is not a person who may inclose by the Statute the Statute is that the Owner shall inclose or he to whom the Wood shall be sold so that although that hee be not Owner yet he is to have the Trees and the profits and the Statute doth intend that he may inclose who ought to have the profit and although the sale be not for monie yet such a person may be said Vendee well enough Wherefore I conclude that Judgment ought to be for the Defendant Walmesley Justice I hold that he hath not authoritie by the
Statute to enclose For the Statute is When any man fels trees in his proper soile so that he not being owner of the ground he is not within the Statute and that was the effect of his argument And as to the other point he did not speak at all Cook chief Justice I hold that the plaintiffe ought to have judgment all the matter doth consist upon the Statute of 22. E. 4. which is to be considered And first is to be considered what was the common Law before that Statute and that was That one who had a Wood within a Forrest might fell it as it appeareth by the Statute de Forresta and the Statnte of 1 E. 3. 2. by licence and also he might enclose it for three yeers as it appeareth by the Statute of 22. E. 4. but the enclosure was to be cum parvo fossato haia bassa as it appeareth by the Register in the Writ of Ad quod damnum so as before that Statute there was an enclosure But the Law is cleer That before that Statute by the enclosure the Commoner shall not be excluded Then wee are to consider of the Statute And first Of the persons to whom the Statute doth extend and that appeareth by the preamble to be betwixt the King and other owners of Forrests and Chases and the owners of the Soil so as a Commoner is not any person within the meaning of the Statute And for the body of the Statute you ought to intend that the sentence is continued and not perfected untill the end of the Statute and the words Without licence c. prove That no persons were meant to be bounden by the statute but the Owners of the Forrests and Chases and not the Commoners Like the case in Dyer And although you will expound the words of the bodie of the Statute generally yet they shall be taken according to the intent of the preamble and therefore the Case of 21. H. 7. 1. of the Prior of Castleacre although it be not adjudged in the Book yet Judgment is entred upon the Roll which Case is Pasch 18. H. 7. Rot. 460. By which case it appeareth that although that a Statute be made which giveth Lands to the King yet by that statute the Annuity of a stranger shall not be extinguished And the Case which hath been put by Justice Foster upon the Statute of 18. Eliz. was the case of Boswel for the Parsonage of Bridgwater That although that one who hath a lease for years of the King which was void for misrecitall might by the said Statute hold it against the King yet the Patentee in Fee shall not be prejudiced by the said Statute So I conclude That the Commoner is not a person within this Statute of 22. E. 4 Secondly It is to be considered if a Wood in which any one hath Common be within the Statute and I hold it is not but onely severall Woods For as I have said the Wood which before the Statute might be enclosed for three years was onely a severall Wood and not such a Wood in which any one had common And the statute of 22. E. 4. doth extend onely to such Woods which might be felled and enclosed for three yeers and I conceive contrary to my Brother Warburton That the Deer of the Forrest shall well enough be said to be beasts and cattell And whereas by the common Law before this statute the enclosure was onely to be as I have said cum parvo fossato haia bassa by which the Deer were not excluded now by this statute I hold that they may make great hedges to exclude aswell the Deer as other beasts And I agree with Justice Foster that if he will take advantage of the Statute that hee ought to have pleaded that first hee felled and afterwards enclosed and è contrà upon the Statute of 35. H. 8. scil that hee ought first to divide and afterwards to fell c. And also I agree with him that in that point the Statute of 35. H. 8. being contrary doth repeal the Statute of 22. E. 4. if by that Statute the Commoner shall be excluded But I am of opinion with my Brother Warburton cleerly That hee is a Vendee of the Trees and so within the Statute for it is not neeessary that in the Grant there be the word Sell or that money by given nor that it be a contract for a time onely and not to have cantinuance as it is in our case But he who hath the Trees to him and his heirs shall be said to be a Vendee well enough As to the other matter which hath been moved Whether the Statute of 22. E. 4 be a generall law or not I hold cleerly that we are to take knowledg of it although it be not pleaded because it concerneth the King for it is made for the Kings Forrests and of all the Acts made between the King and his subjects wee ought to take knowledg for so was Stowel's Case And also it was adjudged that wee ought to take knowledg of the act concerning the Creation of the Prince because it concerneth the King And Cook in his argument said That if there had not been a speciall proviosin for the Commoner in the Statute of 35. H. 8. the Commoner had not been excluded by that Statute And afterwards Judgment was entred for the plaintiffe Pasch 8. Jacobi in the Common Pleas. 236 NOte That it was holden by three of the Justices viz. Walmâsley Warburton and Foster Cook and Daniel being abâent for law cleerly That a Tenant at will cannot by any custome make a Lease for life by licence of the Lord and that there cannot be any such custome for a lease for life as there is for a lease for years Pasch 8. Jacobi In the Common Pleas. 237 BERRY's Case NOte That upon an Evidence given to a Jury in a Case betwixt Berry and New Colledg in Oxford it was ruled by Walmesley Warburton Foster Justices in an Action of Trespass If it appear upon the Evidence that the plaintiff hath nothing in the land but in common with a stranger yet the Jury ought to finde with the Plaintiff and if the Defendant will have advantage of the Tenancy in common in the plaintiff he ought to have pleaded it Nichols Serjeant was very earnest to the contrary and took a difference where the Plaintiffe and Defendant are Tenants in common and where the Plaintiff is tenant in common with a stranger But he was over-ruled the action was an action of Trespass Quare clausum fregit c. Cook and Daniel were absent Pasch 8. Jacobi in the Common Pleas. 238 IT was holden by Walmesley Warburton and Foster Justices That if a Rent be granted to one and his heirs for the life of another man and the grantee dieth that his heir shall not be an occupant of the Rent And Foster said that the reason was because he cannot plead a Que estate of a Rent
afterwards he granted the Reversion for eighty years reserving the ancient rent The question was Whether he had pursued his Authority because by the meaning of the Proviso a Power was That the Conusor should have the rent presently or when the Term did begin But the opinion of the Court was That he had done lesse then by the Proviso he might have done for this Grant of the Reversion doth expire with the particular estates for life But if he had made a Lease to begin after the death of the Tenants for life the same had been more then this grant of the Reversion And Cook chief Justice said That the Grantor may presently have an Action of debt against the Grantee of the Reversion for the rent But because it was not averred that any of the Cestuy que viei were alive at the time when the Grantor did distrain for the rent Judgement in the principall case was respited Trinit 10. Jacobi in the Common Pleas. 282 UPon the Statute of Bankrupts this Case was moved to the Court If a Bankrupt be endebted unto one in Twenty Pounds and to another in Ten Pounds and he hath a Debt due to him by Bond of Twenty Pounds Whether the Commissioners may assigne this Bond to the two Creditors jointly or whether they must divide it and assigne Twenty Marks to the one and Twenty Marks to the other And the Court was of opinion That it was so to be divided as the words of the Statute are viz to every Creditor a portion rate and rate like c. And then it was moved How they might sue the Bond whether they might joine in the Suit or not ad quod non fuit responsum by Cook Warburton Justice said That when part of the Bond is assigned to one and part to another that now the Act of Parliament doth operate upon it and therefore they shall sue severally for he said That by the custome of London part of a debt might be attached And therefore he conceived part might be sued for Trinit 10. Jacobi In the Common Pleas. 283 SPRAT and NICHOLSON's Case SPrat Sub-Deacon of Exeter did libel in the Spiritual Court against Nicholson Parson of A. pro annuali pensione of Thirty Pound issuing out of the Parsonage of A. and in his Libel shewed How that tam per realem compositionem quam per antiquam laudabilem consuetudinem ipse predecessores sui habuerunt habere consueverunt praedictam annualem penfionem out of his Parsonage of A. Dodderidge Serjeant moved for a Prohibition in this Case because he demands the said Pension upon Temporall grounds viz. prescription and reall composition But Cook Chief Justice and the other Justices were of opinion That in this Case no Prohibition should be granted for they said That the party had Election to sue for the same in the Spirituall Court or at the common Law because both the parties were Spirituall persons but if the Parson had been made a party to the Suit then a Prohibition should have been granted Vide Fitz. Nat. Brev. 51. b. acc And they further said That if the party sueth once at the common Law for the said Pension that if he afterwards sue in the Spirituall Court for the same that a Prohibition will lie because by the first Suit he hath determined his Election And Cook cited 22. E. 4. 24. where the Parson brought an Action of Trespass against the Vicar for taking of Under-Woods and each of them claimed the Tithes of the Under-Woods by prescription to belong unto him and in that Case because the right of the Tithes came in question and the persons were both of them Spirituall persons and capable to sue in the Spirituall Court the Temporal Court was ousted of Jurisdiction But he said That if an issue be joined whether a Chappel be Donative or Presentative the same shall be tryed by a Jury at the common Law And in this case it was said by the Justices That the Statute of 34. H. 8. doth authorize Spiritual persons to sue Lay-men for Pensions in the Spiritual Courts but yet they said That it was resolved by all the Judges in Sir Anthony Ropers case That such Spiritual persons could not sue before the High Commissioners for such Pensions for that Suits there must be for enormious Offences only And in the principall case the Prohibition was denyed Trinit 10. Jacobi in the Common Pleas. 284 Sir BAPTIST HIX and FLEETWOOD and GOT's Case FLeetwood and Gots by Deed indented did bargain and sell Weston Park being three hundred Acres of Lands unto Sir Baptist Hix at Eleven Pound for every Acre which did amount in the whole to Two thousand five hundred and thirty Pounds and in the beginning of the Indenture of Bargain and Sale it was agreed betwixt the parties That the said Park being much of it Wood-land should be measured by a Pole of eighteen foot and a halfe And further it was covenanted That Fleetwood and Gots should appoint one Measurer and Sir Baptist Hixe another who should measure the said Park and if upon the measuring it did exceed the number of Acres mentioned in the Indenture of Sale that then S. Baptist Hixe should pay to them acording to the proportion of 11l. for every Acre and if it wanted of the Acres in the deed that then Fleet ' and Gots should pay back to S. Baptist the surplusage of the mony according to the proportion of 11. l. for every Acre And upon this Indenture Sir Baptist Hixe brought an Action of Covenant against Fleetwood and Gots and assigned a Breach that upon the measuring of it it wanted of the Acres mentioned in the Deed 70 Acres And upon the Declaration the Defendants did demurre in Law and the cause of the Demurrer was because the Plaintiff did not shew by what measure it was measured And therefore Sherley Serjeant who was of Councel with the Defendants said that although it was agreed in the beginning of the Deed that the measure should be made by a Pole of 18 feet and a half Yet when they come to the covenants there it is not spoken of any measure at all and therefore he said it shall be taken to be such a measure which the Statute concerning the measuring of Lands speaks of viz. a measure of sixteen foot and a half to the Pole and he said that by such measure there did not want any of the said three hundred Acres mentioned in the Deed. Dodderidge Serjeant contrary for the Plaintiff and he layed this for a ground That if a certainty doth once appeare in a Deed afterwards in the same Deed it is spoken indefinitely the same shall be referred to the first certainty and to that purpose he vouched the case in Dyer Lands were given by a Deed to a man haeredibus masculis and afterwards in the same Indenture it appeared that it was haeredibus masculis de Corpore and therefore it was holden but an estate in
man and his heirs such Seat and he and his heirs have used to repair the said Seat If another will libell against him in the Spirituall Court for the same Seat he shall have a Prohibition And he said That he had seen a Judgement in 6. E. 6. That if Executors lay a Grave Stone upon the Testator in the Church or set up his Coat-armour in the Church If the Parson or Vicar doth remove them or carry them away that they or the heir may have their Action upon the Case against the Parson or Vicar Note in the principall no Prohibition for the reasons before Trinit 10. Jacobi in the Common Pleas. 287 The Archbishop of York Sedgwick's Case THe Archbishop of York and Doctor Ingram brought and exhibited a Bill in the Exchequer at York upon an Obligation of seven hundred pound and declared in their Bill in the nature of an Action of Debt brought at the common Law which matter being shewed unto the Court of Common Pleas by Sedgwick the Defendant there A Prohibition was awarded to the Archbishop and to the said Court at York And Cook chief Justice gave the reasons wherefore the Court granted the Prohibition 1. He said because the matter was meerly determinable at the common Law and therefore ought to be proceeded in according to the course of the common Law 2. Although the King hath granted to the Lord President and the Councel of York to hold pleas of all personall Actions yet he said they cannot alter the form of the proceedings For as 6. H. 7. 5. is The King by his Grant cannot make that inquirable in a Leet which was not inquirable there by the Law nor a Leet to be of other nature then it was at the common Law And in 11. H. 4. it is holden That the Pope nor any other person can change the common Law without a Parliament And Cook vouched a Record in 8. H. 4. That the King granted to both the Universities that they should hold plea of all Causes arising within the Universities according to the course of the Civil Law and all the Judges of England were then of opinion That that grant was not good because the King could not by his Grant alter the Law of the Land with which case agrees 37. H. 6. 26. 2. E. 4. 16. and 7. H. 7. But at this day by a speciall Act of Parliament made 13. Eliz. not printed The Universities have now power to proceed and judge according to the Civil Law 3. He said That the Oath of Judges is viz. You shall do and procure the profit of the King and his Crown in all things wherein you may reasonably effect and do the same And he said That upon every Judgement upon debt of forty pound the King was to have ten shillings paid to the Hamper and if the debt were more then more But he said by this manner of proceeding by English Bill the King should lose his Fine 4. He said That if it was against the Statute of Magna Charta viz. Nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum vel per legem terrae And the Law of the Land is That matters of fact shall be tried by verdict of twelve men but by their proceedings by English Bill the partie should be examined upon his oath And it is a Rule in Law That Nemo tenetur seipsum prodere And also he said That upon their Judgement there no Writ of Error lyeth so as the Subject should by such means be deprived of his Birth-right 5. It was said by all the Justices with which the Justices of the King's Bench did agree That such proceedings were illegall And the Lord Chancellor of England would have cast such a Bill out of the Court of Chancery And they advised the Court of York so to do and a Prohibition was awarded accordingly Trinit 10. Jacobi in the Common Pleas. 288 Doctor HUTCHINSON's Case DOctor Hutchinson libelled in the Spirituall Court against one of his Parishioners for Tithes The Defendant there shewed that the Doctor came to the Parsonage by Symony and Corruption And upon suggestion thereof made in the Common Pleas prayed a Prohibition Doctor Hutchinson alledged that he had his pardon and pleaded the same in the Spirituall Court And notwithstanding that the Court granted a Prohibition because the Pardon doth not make the Church to be plena but maketh the offence onely dispunishable But in such case If the King doth present his presentee shall have the Tithes Trinit 10. Jacobi in the Common Pleas. 289 NOte by Cook Chief Justice that these words viz. Thou wouldest have taken my purse from me on the high way are not actionable But Thou hast taken my money and I will carry thee before a Justice lay felony to thy charge are actionable Mich. 11. Jacobi in the Common Pleas. 290 HATCH and CAPEL's Case IN an Action upon the Case upon an Assumpsit brought against the Defendant The Plaintiffe declared How that one Hallingworth who was the Defendants Husband was indebted unto the Plaintiffe eight pound ten shillings for beer and that he died and that after his death the Plaintiff demanded the said mony of the Defendant his wife and she in consideration that he would serve her withbeer promised that she would pay unto the said Plaintiff eight pound ten shillings and for the rest of the beer at such a day certain And the Plaintiffe did averr That he did sell and deliver to her Beer and gave her day for the payment of the other money as also for the Beer delivered unto her and that at the day she did not pay the Money Cook and all the other Justices agreed That the Action would well lie and that it was a good Assumpsit and a good consideration for they said That the forbearance of the money is a good consideration of it selfe and they said That in every Assumpsit he who makes the promise ought to have benefit thereby and the other is to sustain some losse And judgement was given for the Plaintiff Mich. 11. Jacobi in the Common Pleas. 291 NORTON and LYSTERS Case IN the Case of a Prohibition the Case was this Queen Elizabeth was seised of the Manor of Nammington which did extend into four Parishes viz. Stangrave and three other And the Plaintiff shewed That he was seised of three Closes in Stangrave and prescribed That the said Queen and all those whose Estate he hath in the said Closes had a Modus decimandi for the said three Closes and for all the Demeanes of the said Manor in Stangrave And whether the Venire facias should be de parochia de Stangrave or of the Manor was the question And it was resolved by the whole Court That the Visne should be of the Parish of Stangrave and not of the Manor And the Difference was taken when one claimes any thing which goes unto the whole Manor and when only to
And per Curiam a Prohibition shal be awarded And Cook chief Justice said That there were three Causes in the Bill for which a Prohibition should be granted which he reduced to three Questions 1. If a Copy-holder payeth his rent and the Lord maketh a Feoffment of the Manor Whether the Copy-holder shall be compelled to attorn 2. If a man be seised of Freehold Land and Covenants to stand seised to an use Whether in such case an Attornment be needfull 3. If a Feoffment be made of a Manor by Deed Whether the Feoffee shall compell the Tenants to attorn in a Court of Equity And for all these Questions It was said That the Tenants shall not be compelled to attorn for upon a Bargain and Sale and a Covenant to stand seised there needs no attronement And Cook in this case said That in 21. E. 4. the Justices said That all Causes may be so contrived that there needed to be no Suit in Courts of Equity and it appears by our books That a Prohibition lies to a Court of Equity when the matter hath been once determined by Law And 13. E. 3. Tit. Prohibition and the Book called the Diversity of Courts which was written in the time of King Henry the eighth was vouched to that purpose And the Case was That a man did recover in a Quare Impediâ by default and the Patron sued in a Court of Equity viz. in the Chancery and a Prohibition was awarded to the Court of Chancery Mich. 11 Jacobi in the Common Pleas. 298 Sir JOHN GAGE and SMITH's Case AN Action of Waste was brought and the Plaintiffe did declare that contrary to the Statute the Lessee had committed Waste and Destruction in uncovering of a Barn by which the timber thereof was become rotten and decayed and in the destroying of the stocks of Elmes Ashes Whitethorn and Blackthorn to his damage of three hundred pound And for title shewed That his Father was seised of the Land where c. in Fee and leased the same to the Defendant for one and twenty years and died and that the Land descended to him as his son and heir and shewed that the Waste was done in his time and that the Lease is now expired The Defendant pleaded the generall issue and it was found for the Plaintiffe and damages were assessed by the Jury to fifty pound And in this case it was agreed by the whole Court 1. That if six of the Jury are examined upon a Voyer dire if they have seen the place wasted that it is sufficient and the rest of the Jury need not be examined upon a Voyer dire but onely to the principall 2. It was agreed if the Jury be sworn that they know the place it is sufficient although they be not sworn that they saw it and although that the place wasted be shewed to the Jury by the Plaintiff's servants yet if it be by the commandment of the Sheriffe it is as sufficient as if the same had been shewed unto them by the Sheriff himselfe 4. It was resolved That the eradicating of Whitethorn is waste but not of the Blackthorn according to the Books in 46. E. 3. and 9. H. 6. but if the blackthorn grow in a hedg and the whole hedg be destroyed the same is Waste by Cook chief Justice It was holden also so that it is not Wast to cut Quick-set hedges but it shall be accounted rather good husbandry because they will grow the better 5. It was agreed That if a man hath under-woods of Hasell Willowes Thornes if he useth to cut them and sell them every ten years If the Lessee fell them the same is no wast but if he dig them up by the roots or suffereth the Germinds to be bitten with cattel after they are felled so as they will not grow again the same is a destruction of the Inheritance and an Action of wast will lie for it But if he mow the Stocks with a wood-sythe as he did in the principall Case the same is a malicious Wast and continuall mowing and biting is destruction 6. It was said That in an Action of Wast a man shall not have costs of Suit because the Law doth give the party treble damages And when the generall issue Nul Wast is pleaded and the Plaintiff counted to his damages 100l. the Court doubted whether they could mitigate the damage But 7. It was agreed That in the principal Case although the issue were found for the Plaintiff that he could not have judgment because he declared of Wast done in 8. several closes to his damage of 300l. generally and did not sever the damages And the Jury found That in some of the said Closes there was no Wast committed Wherefore the Court said he could not have judgement through his own default But afterwards at another day Hobart then chief Justice and Warburton Justice said That the verdict was sufficient and good enough and so was also the declaration and that the Plaintiffe might have judgment thereupon But yet the same was adjourned by the Court untill the next Term. Mich. 11. Jacobi in the Common Pleas. 299 CLARK's Case NOte It was said by Cook chief Justice and agreed by the whole Court and 41. and 43. E. 3. c That if a man deliver money unto I. S. to my use That I may have an Action of Debt or account against him for the same at my election And it was agreed also That an Action of Trover lieth for money although it be not in bags but not an Action of Detinue Mich. 11. Jacobi in the Common Pleas. 300 IRELAND and BARKER's Case IN an Action of Wast brought the Writ was That the Abbot and Covent had made a Lease for years c. And it was holden by the Court that it was good although it had been better if the Writ had been That the Abbot with the assent of the Covent made the Lease for that is the usuall form but in substance the Writ is good because the Covent being dead Sons in Law by no intendment can be said to make a Lease But the Dean and Chapter ought of necessity to joyne in making of a Lease because they are all persons able and if the Dean make a Lease without the Chapter the same is not good per curiam if it be of the Chapter Lands And in Adams and Wâoââstey's Case Harris Serjeant observed That the Lease is said to be made by the Abbot and Covent and it is not pleaded to be made by the Abbot with the assent of the Covent Mich. 11 Iacobi In the Common Pleas. 301 The Dean and Canons of Winsor and WEBB's Case IN this Case it was holden by the Court That if a man give Lands unto Dean and Canons and to their Successors and they be dissolved or unto any other Corporations that the Donor shall have back the Lands again for the same is a condition in Law annexed to the Gift and in such Case no Writ of
the Fleet because he had made Return of a Writ contrary to what he had said in the same Court the day before and 11. H. 6. was vouched by Warburton Justice That if the Sheriff do return that one is languidus in prisona whereas in truth he is not languidus the Sheriff shall be sued for his false Return which was agreed by the whole Court Quod nota Mich. 11. Jacobi in the Common Pleas. 318 WArburton Justice asked the Pronothories this question If in Trespass the plaintiff might discontinue his action within the yeer To which the Pronothories answered That if it be before any plea be pleaded that he might But the Justices were of a contrary opinion that he could not because then costs which are given by the Statute should be lost Mich. 11. Jacobi In the Common Pleas. 319 LAISTON's Case IN Trespass for a Wây the Defendant pleaded a plea in bar which was insufficient and afterwards the plaintiff was Non-suit yet it was resolved by the Court that the defendant should have his costs against the plaintiff But if a default be in the originall Writ and afterwards the plaintiff is Non-suit there the defendant shall not have costs because that when the Original is abated it is as if no suit had been And so was the opinion of the whole Court Mich. 11. Iacobi in the Common Pleas. 320 HILL and GRUBHAM's Case THe Case was this A Lease was made unto Grubham by a deed paroll Habendum to him his wife and his daughter successivè sicut scribuntur et nominantur in ordine Afterwards Grubham dyed and then his wife dyed And if it were a good estate in Remainder to his daughter was the Question Harris Serjeant The Remainder is void and not good by way of Remainder for the incertainty C. 1. part in Corbets case In all Contracts and bargains there ought to bee certainty And therefore 22. H. 6. is That if a Feoffment be made to two et haeredibus it is void although it be with warranty to them and their heirs Vide 9. H. 6 35. Where renunâiavit totam communiam doth not amount unto a Release because it is not shewed to whom the Release is and so in 29. Eliz. in the Kings Bench in Windsmere Hulbards case Where an Indenture was to one Habendum to him and to his wife and to a third person Successive it was holden that it was void by way of Remainder to any of them And there it was Resolved 1. That they did not take presently 2. That they could not take by way of Remainder And 3. that They could not take as Occupants because that the intent of the Lessor was that they should take but as one estate But the Court was of opinion against Harris And Resolved That the daughter had a good estate in Remainder and that the same did not differ from the Case in Dyer Where a Lease was made by Indenture to one Habendum to him to another successivè sicut nominantur in Charta for that those words Sicut nominantur in Charta maketh the estate to be certain enough And so they said in this Case Sicut scribuntur et nominantur in Ordine is certain enough and shall be taken to be Sicut scribuntur et nominantur in eadem charta But they agreed according to the Case in Brooks Cases That a Lease to three Habendum ãâ¦ã Mich. 11. Jacobi in the Common-Pleas 321. TRAHERNS Case AN Assize of Nusans was brought against the Defendant because that Levavit quandam domum ad nocumentum c. And the Plaintiff shewed how that he had a Windmil and that the Defendant had built the said house so as it hindred his Mill And the Jury found that the Defendant levavit domum and that but two feet of it did hinder the Plaintiffs Mill and is ad nocumentum And how Judgment should be given was the question And the Court was of opinion That Judgment should be that but part of the house should be abated viz. That which was found to be ad nocumentum And it was said by some That the Assise is such a Writ which extends to the whole house and therefore that the whole house should be abated according to the Writ But a difference was taken betwixt the words Erexit and Levavit For Erexit is but when parcel of a house is set up ad nocumentum but Levavit is when an entire house is levied from the ground And it was said by Hobart Chief Justice That if the Defendant had not levied the house so high by two yards it had been no Nusans for the Jury find that the two yards only are ad nocumentum And therefore he conceived that the Writ was answered well enough and that but part of the house should be abated For the Writ is Quod levavit quandam domum c. And the Verdict is Quod levavit domum But that but two yards of it is ad nocumentum And therefore he said the Writ is answered well enough and that the Judgment should be given That that only should be abated which was ad nocumentum c. Quaere for the Case was not resolved And vid. Batten Sympsons Case C. par 9. to this purpose Mich. 11. Jacobi in the Common-Pleas 322. BAGNALL and POTS Case IT was resolved by the Court in this Case That when an Issue is joyned upon Non concessit that the Issue shall be tryed where the Land is But if a Lease be in question and Non concessit be pleaded to it it shall be tryed where the Lease was made 2. It was resolved That if Copy-hold land be given to superstitious uses and the same cometh unto the King by the Statute That the Copyhold is destroyed and the Uses shall be accompted void But it was resolved That in such Case by the Statute which giveth this Land so given to superstitious uses to the King that the King hath not thereby gained the Freehold of the Copyhold but that the same remaineth in the Lord of the Mannor Mich. 11. Jacobi in the Common-Pleas 324. JUCKS Sir CHARLS CAVENDISH's Case A Parson sued for the substraction of Predial Tythes upon the Statute of 2 E. 6. in the Spiritual Court The Defendant made his suggestion That for such a Farm upon which the Tythes did arise there was this custom That when the Tythes of the Lands were set forth that the Owners of the said Lands had used time out of mind to take back thirty sheafs of the Tythe-corn and shewed that he was the Owner of the said Farm and that according to the said custom after the Tythes were set forth that he did take back thirty sheafs thereof and thereupon prayed a Prohibition And in this Case it was said by the Court That it ought to be averred that the Farm was a great Farm for otherwise it should be the impoverishing of the Church and would take away a great part of the profit of the Parson
And it was further said by the Court That if there were but thirty Tythe-sheafs in all that the Owner should not have them for then the Custom should be unreasonable And Day was given to the other side to shew Cause why the Prohibition should not be awarded Mich. 11. Jacobi in the Common-Pleas 325. GANDEN and SYMMON's Case NOte That where a Juror is not challenged by one party who had sufficient cause of challenge and afterwards is challenged by the other side and afterwards the party doth release his challenge in that case the first party cannot challenge the same Juror again because he did foreslow his time of challenge and he had admitted the party for to be indifferent at the first Mich. 11. Jacobi in the Common-Pleas 326. The Bishop of CHICHESTER and STRODWICK's Case IN an Action of Trespass for taking away of Timber and the Boughs of Trees felled The Defendant as to the Timber pleaded Not guilty And as to the Boughs he made a special Justification That there is a Custom within the Mannor of Ashenhurst in the County of Sussex That when the Lord fels or sels Timber-trees that the Lord is to have only the Timber and that the poor Tenants in Coscagio parte Manerii time out of mind have used to have the Branches of the Trees for necessary Estovers to be burnt in necessario focali in terris tenementis And the Opinion of the Court was That the Custom was not well expressed to have Estovers to burn in terris tenementis for that Estovers cannot be appertaining to Lands but to Houses only And therefore whereas the Defendant in the Case did entitle himself to a house and lands and gave in Evidence that the Custom did extend to Lands it was holden that the Evidence did not maintain the Issue And the Custom was alleadged to be That the Lord should have Quicquid valeret ad maremium and that the Freeholders should have ramillos Which as Hobart Chief Justice said is to be meant all the Arms and Boughs for whatsoever is not maremium is ramillum 2. It was holden in this Case That the Non-use or Negligence in not taking of the Boughs did not extinguish nor take away the Custom as it hath been oftentimes resolved in the like case And note that in this Case to confirm the said Custom the Book-case was cited which is in 14. E. 3. Fitz. t' Bar. 277. and the same was given in and avowed for good Evidence where the Case was That the Bishop of C. which shall be intended the Bishop of Chichester brought an Action of Trespass for felling of Trees and carrying them away where the Defendant pleaded That he held a Messuage and a Verge of Land of the Bishop and that all the Tenants of the Bishop within the Manor of A. ought to have all the Windfals of Trees and all the Boughs and Branches c. Which Case as Harris Serjeant conceived was the Case of the very Mannor now in question and the Tenant there as in this Case made a special Justification and there it was holden that it was good and adjudged for the Defendant Also in that Case it was adjudged That the Lord should have Maremium and that the Tenants should have Residuum which shall be intended the Boughs and Branches And the Custom in the Case was adjudged good But because the Defendant alleadged the Custom to be to have the same as Estovers to be burned in terris and gave Evidence only to the Messuage it was found against the Defendant for that the Evidence did not maintain the Issue Mich. 11. Jacobi in the Common-Pleas 327. VAUGHAN's Case IN a Formedon in the Discender the Tenant had been essoined upon the Summons and also upon the View And after was pleaded Ne dona pas the general issue and thereupon issue was joyned And if he might be essoined again after issue joyned was the Question And the Court was of opinion That in a real action the Tenant may be essioned after Issue joyned but not in a personal action by the Statute of Marlebridge And Hobart Chief Justice said That the Statute of Marlebridge gave not any Essoin but only did restrain Essoins and therefore in real Actions the same is left as it was at the Common Law and by the Common Law the Tenant might be Essoined after Issue joyned And note per totam Curiam That if an Essoin be not taken the first day it shall never after be taken Mich. 11. Iacobi in the Common-Pleas 328. CLAY and BARNETS Case IN an Ejectione Firme the Case was this Sir Godfrey Foliamb had issue James his son who had issue Francis And Sir Godfrey Foliamb was seized in Fee of divers Lands as well by purchase as by discent in sundry Towns viz. Chesterfield Brampton c. in the Tenures of A. B. C. c. and dyed James Foliamb his son 7 E. 6. made a Conveyance of divers Lands to Francis Foliamb being his younger son in haec verba viz. Omnia mea Mesuagia terras tentam in Chesterfield Brampton c. modo in tenuri of the said A. B. C. quae pater meus Galfrid Foliamb perquesivit from divers men whom he named in certain And also convey a House called the Hart to the same Francis which came to him by discent by the same Conveyance which was in the occupation of one Celie and not in the Tenures of the said A. B. C. And the great Question upon the whole Conveyance was Whether all the Lands which he had by Discent in the said Towns and in the Occupations and Tenures of the said A. B. C. did pass or only the purchased Lands And it was resolved by the whole Court That the Conveyance did pass only the Lands which he had by purchase except only the said House which was precisely named and conveyed and did not pass the Lands which he had by Discent For if all the Lands which he had by Discent should pass by the general words then the special words which passed the House which he had by Discent should be idle and frivolous and that was one reason ex visceribus causae that only the purchased Lands did pass 2. It was said by Justice Warburton That if a man giveth all his Lands in D. in the Tenures of A. B. and he hath Lands in D. but not in their Tenures that in that case all his Lands in D. passeth So if a man give all his Lands in D. which he had by Discent from his son there all his Lands whatsoever shall pass Hobart acc ' and said That if a man gives all his Lands in the County of Kent if he have Lands within the County they do pass And he said that in a Conveyance every restriction hath his proper operation and in the Conveyance in the principal case there were three restrictions 1. All his âands in such Towns viz. Chesterfield Brampton c. 2. All his lands in the
Tenures of such men viz. A. B. C. 3. All his lands which he had by Purchase c. And the words All my Lands are to be intended all those my Lands which are within the restrictions And he said that the word Et being in the copulative was not material for all was but one sentence and it did not make several sentences and the word Et is but the conclusion of the sentence 3. They resolved That general words in a Grant may be overthrown by words restrictive as is 2 E. 4. and Plow Com. Hill Granges Case And therefore if a man giveth all his lands in D. which he hath by Discent from his Father if he have no lands by Discent from his Father nothing passeth 4. They agreed That a Restriction may be in a special Grant as in C. 4. par Ognels Case but they said that if the Restriction doth not concur and meet with the Grant that then the Restriction is void Note the principal Case was adjudged according to these Resolutions Mich. 11. Iacobi in the Common-Pleas 293. COOPER and ANDREWS Case TO have a Prohibition to the Spiritual Court suggestion was made That the Lord De la Ware was seised of 140 Acres of lands in the County of Sussex which were parcel of a Park And a Modus Decimandi by Prescription was said to be That the Tenants of the said 140 Acres for the time being had used to pay for the tythes of the said 140 Acres two shillings in mony and a shoulder of every third Deer which was killed in the same Park in consideration of all tythes of the said Park And it was shewed how that the Lord De la Ware had enfeoffed one Cumber of the said 140 acres of land who bargained and sold the said 140 acres of land to the Plaintiffe who prayed the Prohibition The Defendant said that the said Park is disparked and that the same is now converted into arable lands and pasture-grounds and so demanded tythes in kind upon which the Plaintiffe in the Prohibition did demur Hutton Serjeant By the disparking of the Park the Prescription is not gone nor extinct because the Prescription is said to be to 140 acres of lands and not to the Park and although the shoulder of the Deer being but casual and at the pleasure of the party be gone yet the same shall not make void the Prescription 2. He said that the act of the party shall not destroy the Prescription and although it be not a Park now in form and reputation yet in Law the same still remains a Park And he compared the Case unto Lutterels Case C. 4. par 48. where a Prescription was to Fulling-Mils and afterwards the Mils were converted to Corn-Mils yet the Prescription remained 3. He said Admit it is not now a Park yet there is a possibility that it may be a Park again and that Deer may be killed there again For the Disparking in the principal Case is only alleadged to be that the Pale is thrown down which may be amended For although that all the Park-pale or parcel of it be cast down yet the same doth still remain in Law a Park and a Park is but a Liberty and the not using of a Liberty doth not determine it nor any Prescription which goes with it And if a man have Estovers in a Wood by Prescription if the Lord felleth down all the Wood yet the right of Estovers doth remain and the Owner shall have an Assise for the Estovers or an Action upon the Case Vid. C. 5. par 78. in Grayes Case the Case vouched by Popham Further he said That in the beginning a Modus Decimandi did commence by Temporal act and Spiritual and the mony is now the tythe for which the Parson may sue in the Spiritual Court And a Case Mich. 5. Jacobi was vouched where a Prescription to pay a Buck or a Doe in consideration of all Tythes was adjudged to be a good Prescription And the Case Mich. 6. Jacobi of Skipton-Park was remembred where the difference was taken when the Prescription runs to Land and when to a Park In the one case although the Park be disparked the Prescription doth remain in the other not And 6 E. 6. Dyer 71. was vouched That although the Park be disparked yet the Fee doth remain And so in the Case at Bar although the casual profit be gone yet the certain profit which is the two shillings doth remain Harris Serjeant contrary And he said that the Conveyance was executory and the Agreement executory and not like unto a Conveyance or Agreement executed And said that Tythes are due jure divino and that the party should not take advantage of his own wrong but that now the Parson should have the tythes in kind And upon the difference of Executory and Executed he vouched many Authorities viz. 16 Eliz. Dyer 335. Calthrops Case 15 E. 4. 3. 5 E. 4. 7. 32 E. 3. Anuitie 245. And in this case he said that the Parson hath no remedy for the shoulder of the Deer and therefore he prayed a Consultation Hobart Chief Justice said That the Pleading was too short and it was not sufficiently pleaded For it is not pleaded That the Park is so disparked that all the benefit thereof is lost But he agreed it That if a man doth pull down his Park-pale that the same is a disparking without any seisure of the Liberty into the Kings hands by a Quo Warranto But yet all the Court agreed That it doth yet remain a Park in habit And they were all also of opinion That the disparking the Park of the Deer was not any disparking of the Park as to take away the Prescription The Case was adjourned till another day Mich. 11. Iacobi in the Common-Pleas 330. PIGGOT and PIGGOT's Case IN a Writ of Right the Donee in tail did joyn the Mise upon the meer Right and final Judgment was given against the Donee in which case the Gift in tail was given in Evidence Afterwards the Donee in tail brought a Formedon in the Discender and it was adjudged by the whole Court that the Writ would not lie For when final Judgment is given against the Donee in tail upon issue joyned upon the meer Right it is as strong against him as a Fine with Proclamations and the Court did agree That after a year and day where final Judgment is given the party is barred and also that such final Judgment should bar the Issue in tail Mich. 11 Iacobi in the Exchequer-Chamber 331 AN action upon the Case was brought for speaking these words Thou doest lead a life in manner of a Rogue I doubt not but to see thee hanged for striking Mr. Sydenhams man who was murdered And it was resolved by all the Justices in the Exchequer-Chamber That the words were not actionable At the same day in the same Court a Judgment was reversed in the Exchequer-Chamber because the words were not actionable The words
resolved That although the Award was void as to that part yet for the residue it stood good and therefore for not performance of the same the Bond is forfeited As if J. be bounden to perform the Award of J. S. for White-Acre and that he award that I enfeoffe another of White-Acre and that he give unto me Ten pounds If I tender unto him a Feoffment of White-Acre and he refuseth it and will not give to me the 10l. I shall have an Action of Debt upon the Bond as it is adjudged in Osborn's Case C. 10. par 131. The same Law If J. S. and J. N. submit themselves unto the Award of J. D. who awardeth that J. S. shall surcease all suits and procure J. N. to be bounden with a stranger and make a Feoffment of his Mannor of D. which is a thing out of the Submission In that case there are three things enforcing the Arbitrement the first is only good the second is against the Law and the other is out of the Submission yet being in part good it ought to be performed in that otherwise the Bond is forfeited But this Case was put If J. be bounden to stand to the Award of A. ita quod it be made de super premissis and afterwards A. maketh an Award but of part of the premises there it is void in all because it is not according to the authority given unto him And afterwards in the principal Case Judgment was given for the Plaintiffe Pasch 12 Jacobi in the Kings Bench. 353. DOCKWARY and BEAL's Case IN an Essex Jury The opinion of the Court was That Wood will passe by the name of Land if there be no other Land whereby the words may be otherwise supplied Also it was agreed That the Tenant for Years might fell Underwoods of 25 years growth if the same hath used to be felled Pasch 12 Jacobi in the Kings Bench. 354. WROTESIEY and CANDISH's Case ELizabeth Wrotesley did recover Dower 6 Jacobi in the Common-Pleas in which Writ she demanded tertiam partem Manerii de D. eum pertinaciis Nec non tertiam partem quarundam terrarum jacent in Hovelan And upon Ne unque seise que Dower the parties were at issue and the Venire facias awarded de Hovelan And it was found for the Plaintiffe and Judgment was given for her And Candish the Defendant brought a Writ of Error in the Kings Bench and assigned for Error That it was a Mis-trial For that the Venire facias ought to have been de Manerio and not of Hovelan 6 H. 7. 3. 11 H. 7. 20. C. 6 par â 19 H. 6. 19. 19 E. 4. 17. Yet the Councel of the Defendant moved That the Trial was good for the Land in Hovelan And it being found that the Husband was seised of the Mannor of D. that now the Trial was good for the whole Pasch 12 Jacobi in the Kings Bench. 355. COWLEY and LEGAT's Case COwley brought an Audita quaerela against Legat and the Case was this Cowley and Bates bound themselves in a Bond of 200l. jointly and severally to Legat And afterwards 6 Jacobi Legat brought an action of Debt upon the Bond against Bates and had Judgment and 7 Jacobi the said Legat brought Debt against Cowley in the Kings Bench upon the same Bond and obtained Judgment and afterwards he sued forth Execution upon the first Judgment by Elegit and had the Land of Bates who was Tenant thereof only for another mans life in Execution and afterwards he took forth a Capias ad satisfaciendum against Cowley upon the Judgment in the Kings Bench And thereupon Cowley brought an Audita quaerela containing in it all the whole matter And the opinion of all the Justices was That the Audita quaerela was well brought And first it was holden That when a man may plead the matter in bar he shall not have an Audita quaerela upon the matter because it was his lachess that he did not take advantage of it by way of plea. But secondly in this Case it was said That he could not have pleaded the special matter and therefore as to that point the Audita quaerela was well brought But the onely doubt in the Case was Whether Legat the Defendant might have a new Execution by Capias ad satisfaciendum after that he had Execution against one of the Obligers by Elegit and the doubt was because the Judgments upon which he grounded his Executions were given at several times and in several Courts and against several persons For it was agreed by the whole Court That a Capias doth not lie after Execution sued by Elegit against the same person but after a Capias an Elegit is grantable And the reason of the difference is because upon the prayer to have an Elegit it is entred in the Roll Elegit sibi executionem per medietatem terrae so as he is estopped by the Record to have another Execution but upon a Capias nothing at all is entred upon Record Yet Cook Chief Justice said That it is the common practice of a good Attorney to deferre the entry in the Roll of Execution upon an Elegit until the Sheriffe hath retorned it served And in such case it was agreed That if the Sheriffe retorn upon the Elegit That the party hath not Lands c. then the party may take forth a Capias Also the Elegit is in it self a satisfactory Execution and by the Common-Law a man shall have but one Execution with satisfaction And therefore at the Common-Law if after Execution the Land had been evicted the party had no remedy And Cook said If part of the Land be evicted the party shall not have remedy upon the Statute of 32 H. 8. cap. 5. to which Crook Justice agreed And the Court held it to be no difference although that the Judgments were given in several Courts against persons several and at several times and where it is but one Judgment against one person Vide the Case 43 E. 3. 27. where in Debt the Defendant said That the Plaintiffe had another Action for the same Debt depending in the Exchequer by Bill Judgment c. And by Mowbray and Finchden cleerly it is a good plea although it be in another Court And Dodderidge Justice said That in the first case the said Legat might sue the said Cowley and Bates severally and after Judgment he might choose his Execution against which of them he pleased But he could not have Execution by Elegit against them both And therefore he said That although there be an Eviction of the Land or that the Judgment be reversed by Error after that he hath Execution against one by Elegit yet Legat could not have Execution against the other for by the first Execution he had determined his Election and he could not sue the other which Cook agreed Mich. 12 Iacobi in the Kings Bench. 356. FOX and MEDCALF's Case IN a Writ of Accompt brought in
âuaere whether it be a good Plea because it doth amount to the general issue of Not guilty Curia avisare vult And v. Tompsons Case 4 Jac. in the Kings Bench It was adjudged that it was no good Plea Hill 6 Jacobi in the Common Pleas. 370. PAGINTON and HUET'S Case IN an Ejectione Firme the Case was this That the Custome of a Manor in Worcestershire was That if any Copyholder do commit Felony and the same be presented by twelve Homagers That the Tenant should forfeit his âopyhold And it was presented in the Court of the Mannor by the Homage That Hâât the Defendant had committed Felony But afterwards at the Asâises he was acquitted And afterwards the Lord seised the Copyhold And it was adjudged by the Court that it was no good Custom because in Judgment of Law before Attaindor it is not Felony The second point was Whether the special Verdict agreeing with the Presentment of the Homage That the party had committed Felony did entitle the Lord to the Copyhold notwithstanding his Acquital Quaere For it was not resolved Mich. 7 Iacobi in the Common Pleas. 371. THe Custom of a Mannor was That the Heirs which claimed Copy-hold by Discent ought to come at the first second or third Court upon Proclamations made and take up their Estates or else that they should forfeit them And a Tenant of the Mannor having Issue inheritable beyond the Seas dyed The Proclamations passed and the Issue did not return in twenty years But at his coming over he required the Lord to admit him to the Copyhold and proffered to pay the Lord his Fine And the Lord who had seised the Copyhold for a Forfeiture refused to admit him And it was adjudged by the whole Court That it was no Forfeiture because that the Heir was beyond the Seas at the time of the Proclamations and also because the Lord was at no prejudice because he received the profits of the Lands in the mean time Mich. 14 Iacobi in the Kings Bench. 372. A Copyholder in Fee did surrender his Copyhold unto the use of another and his heirs which surrender was into the hands of two Tenants according to the custome of the Mannor to be presented at the next Court. And no Court was holden for the Mannor by the space of thirty years within which time the Surrenderor Surrenderee and the two Tenants all dyed The heir of the Surrenderor entred and made a Lease for years of the Copyhold according to the Custome of the Mannor And it was adjudged per Curiaââ That the Lease was good Mich. 14 Iacobi in the Common-Pleas 373. FROSWEL and WEICHES Case IT was adjudged That where a Copyholder doth surrender into the hands of Copy-Tenants That before Presentment the Heir of the Surrenderor may take the profits of the Lands against the Surrenderee For no person can have a Copyhold but by admittance of the Lord. As if a man maketh Livery within the view although it cannot be countermanded yet the Feoffee takes nothing before his entry But it was agreed That if the Lord doth take knowledge of the Surrender and doth accept of the customary Rent as Rent due from the Tenant being admitted that the same shall amount unto an Admittance but otherwise if he accept of it as a duty generally Mich. 5 Iacobi in the Exchequer 374. IT was adjudged in the Exchequer That where the King was Lord of a Mannor and a Copyholder within the said Mannor made a Lease for three lives and made Livery and afterwards the Survivor of the three continued in possession forty years And in that case because that no Livery did appear to be made upon the Endorsment of the Deed although in truth there was Livery made that the same was no forfeiture of which the King should take any advantage And in that case it was cited to be adjudged in Londons case That if a Copy-Tenant doth bargain and sell his Copy-Tenement by Deed indented and enrolled that the same is no forfeiture of the Copyhold of which the Lord can take any advantage And so was it holden in this Case Pasch 14 Iacobi in the Kings Bench 375. FRANKLIN'S Case LAnds were given unto one and to the heirs of his body Habendum unto the Donee unto the use of him his heirs and assignes for ever In this âase two points were resolved 1. That the Limitation in the Habendum did not increase or alter the Estate contained in the premisses of the Deed. 2. That Tenant in Tail might stand seised to an use expressed but such use cannot be averred Hill 13 Iacobi in the Chancery 376 WINSCOMB and DUNCHES Case VVInscomb having issue two sons conveyed a Mannor unto his eldest son and to the daughter of Dunch for life for the joynture of the wife the Remainder to the ãâ¦ã The son having no issue his Father-in-law Dunch procured him by Deed indented to bargain and sell to him the Manner The Bargâynor being sick who died before enrolment of the Deed within the ãâ¦ã Deed âot being acknowledged And ãâã the ãâã coming to be enrolled the Clark who enrolled the same did proâââe Waââânt from the Master of the Rolls who under-âââ upon the Deââ ãâã the Deed be enrolled upon Affidavit made of the delivery of the Deed by one of the Witnesses to the same And afterwards the Deed was eââââd within the six moneths And the opinion of the Court wasâ That ãâã Conveyance was a good Conveyance in Law And therefore the younger brother exhibited his Bill in Chanchery pretending the Conveyance to be made by practice without any Consideration Mich. 15 Iacobi in the Kings Bench. 377 LUDLOW and STACIâS Case A Man bargained and sold Land by Deed indented bearing date 11 Junii 1 Jacobi Afterwards 12 Junii The same year Common was granted ânto the Bargainee for all manner of Cattell commonable upon the Land 15 Junii theâ Deed of Bargain and Sale was enrolled And it was adjudged a good grant of the Common And the Enrolment shall have Relation as to that although for collaterall things it shall not have relation Hill 15 Iacobi in the Kings Bench. 378. NOte that it was held by Dodderidge Justice and Mountagu Chief Justice against the opinion of Haughton Justice That if Lessee for years covenanteth to repair and sustein the houses in as good plight as they were at the time of the Lease made and afterwards the Lessee assigneth over his Term and the Lessor his Reversion That the Assignee of the Reversion shall maintain an Action of Covenant for the breach of the Covenants against the first Lessee Hill 15 Jacobi in the Common-Pleas 379. SMITH and STAFFORD'S Case A Man promised a Woman That if she would marry with him that if he dyed and she did survive him that he would leave unto her 100â They entermarried and then the husband dyed not performing his promise The wife sued the Executor of her husband upon the said promise And whether the
duty did survive with the wife or were extinguished by the entermarriage was the Question And Hâbart Chief Justice and Warburton were against Winch and Hutton Justices That the marriage was a Release or discharge of the 100â Quaere Hill 15 Jacobi in the Kings Bench 380. PLOT' 's Case AN Enâant brought an Assise in the Kings Bench for Lands in Mich depending which The Tenant in the same Assise brought an Assise for the same Lands in the Common-Pleas which last Writ bore date and was recornable after the first Writ And the Demandant in the second Writ did recover against the Enfant by default by the Aâââse who found the Seisin and Disseisin And upon a Plea in ãâã of the first Assise of that Recovery the Enfant by way of Replication set forth all the special matter And that the Deâandant at the time of the second Writ brought was Tenant of the Land And prayed that he might ãâã the Recovery And it was adjudged That he might falsifie the Recovery For in all Cases where a man shall not have Error noâââtaint he may Falsifie But in this case he could not have Error nor Attaint because the Judgment in the Common-Pleas was not given only upon the Default but also upon the Verdict And it should be in vain for him to bring an Attaint because he shall not be ãâã to give other Evidence then what was given at the first Trial. Also he shall falsifie the Recovery because it was a practise to defeat and take away the Right of the Enfant and to leave him without any remedy whatsoever Pasch 16 Iacobi in the Kings Bench. 381 INGIN and PAYN'S Case LEssee for years was bounden in a Bond to deliver the possession of a house unto the Lessor his heirs and assignes upon demand at the end of the term The Lessor did bargain and sell the Rendition by Deed enrolled to two One of the Bargainees at the end of the term demanded the Delivery of the Possession The Lessee refused pretending that he had no notice of the bargain and sale It was adjudged that the Bond was forfeited Pasch 16 Iacobi in the Common-Pleas 382. JERMYN and COOPER'S Case A Man by Deed gave Lands to A. and to a Feme sole and to their heirs and assigns for ever Habendum to them and to the heirs of their bodies the Remainder to them and the survivor of them for ever And it was adjudged by the Court That they had an Estate in tail with the Fee-simple Expectant Pasch 16 Jacobi in the Kings Bench. 383. A Man was Indicted De verberationem vulnerationem of J. S. and the words vi armis were left out of the Indictment And the same was adjudged to be helped by the Statute and that the Indictment was good Mich. 16 Jacobi in the Kings Bench. 384. BARNWEL and PELSIE'S Case A Parson did Covenant and grant by Deed with one of his Parishioners That in consideration of Six pounds thirteen shillings and four pence per annum be paid unto him that the said Parishioner should be discharged of all Tythes upon condition to be voyd upon default of payment Afterwards the Parson against his grant did sue the Parishioner in the Spirituall Court for Tythes in kind and it was moved for a Prohibition But the Court would not grant it because that the Originall viz. the Tythes do belong to spirituall jurisdiction But it was said that the Parishioner might have an Action of Covenant against the Parson upon the Deed in the Temporall Court 385. Posch 16 Jacobi in the Kings Bench. AN Action upon the Case was brought for speaking of these words viz. J. S. 34 years since had two Bastards and hath paid for the nursing of them And the Plaintiff shewed that by reason of these words contention grew betwixt him and his wife almost to a Divorce And it was adjudged That an Action would not lye for the words And the Chief Justice said That an Action upon the Case doth not lye for every ill word but for words by speaking of which the Plaintiff is damnified and that cannot be in this Case the time being so long past And the causes wherefore a man shall be punished for saying that a man hath a Bastard are twoâ the one because by the Statute of 14 Eliz. the offender is to be punished for the same And secondly because the party by such means is discredited or hindered in his preferment Hill 16 Iacobi in the Kings Bench. 386 HURLSTON and WODROFS Case HEnry Hurlston was Plaintiff against Robert Wodroffe in an Action of Debt upon a Demise of a Messuage with a Sheep-walk the Latin word being Ovile And it was moved in arrest of Judgement after a verdict found for the Plaintiff That the sheepwalk was not alledged to be appurtenant nor pleaded to be by Grant by Deed. But notwithstanding that it vvas ruled by the vvhole Court because it rested indifferent whether there was a grant by Deed or not That when the Jury find that the Sheep-walk did passe it shall be intended that there was a Deed. Dodderidge Justice in the Argument of this Case did hold That by the word Ovile although it be translated in English a Sheep-walk yet a Sheep-walk did not passe by it but a Sheep-Cote and by that the Land it self did passe Hill 16 Iacobi in the Kings Bench. 387. HILL and WADE'S Case HIll brought an Action upon the Case against Wade and declared upon an Assumpsit to pay mony upon request and did not alleadge the Request certain but issue was joyned upon another point and found for the Plaintiffe That the failing of certain alleadging of the Request in the Declaration made the same insufficient And so it was adjudged by the Court with this difference where it was a duty in the Plaintiffe before and where the Request makes it a duty For in the first case the Plaintiffe need not alleadge the Request precisely but otherwise in the later Dodderidge Justice put this Case If I promise J. S. in consideration that he will marry my daughter to give him 20â upon request there the day and place of the request ought to be alleadged in the Declaration Montagu Chief Justice cited 18 E. 4. and 5 H. 7. to be contrary viz. That the finding of the Jury made the Declaration which was vitious to be good As if Executors plead That they have nothing in their hands the day of the Action brought it is insufficient But if the Jury find Assets it is good and so by consequence the Verdict shall supply the defect of Pleading But the Court held these books to be good Law and not to be contrary and well reconciled with this difference For there the Plea was naught only in matter of circumstance but otherwise it is where it is vitious in substance as in this case it is And a difference also was taken where the Verdict doth perfect all which is material and ought to be expressed
ought to be pleaded 3. That if a man in his pleading is to set forth the jurisdiction of the Court of Justices in Eyre if he say Curia tent c. he need not set forth all the Formalities of it And Mountagu Chief Justice in this Case said That if a man do justifie for divers causes and some of the causes are not good the same doth not make the whole Justification to be void but it is void for that only and good for the residue Hill 16 Iacobi in the Kings Bench. 393 CULLIFORDS Case CVlliford and his Wife brought an Action upon the Case against Knight for words And declared upon these words viz. Thou art Luscombs Hackney a pockey Whore and a theevish Whore and I will prove thee to be so which was found for the Plaintiffe And in arrest of Judgment it was moved that the words were not Actionable which was agreed by the whole Court quia verba accipienda sunt in mitiori sensâââ And Judgment was staied accordingly Hill 16. Jacobi in the Kings Bench. 371. IN an Action upon the Case for Words The Plaintiffe did relate that he was brought up in the Studie of a Mathematition and a Measurer of Land And that he was a Surveyor and that the Defendant spake these words of him viz. Thou art a Cosener and a cheating Knave and that I can prove And the opinion of the Court was That the words were actionable And Montague Chief Justice said that it was ruled accordingly in 36 Eliz. Rot. 249. betwixt Kirby and Walter And a Surveyor is an Officer of whom the Statute of 5. E. 6. takes notice And he said that Verba de persona intelligenda sunt de Conditione personae And he said that the words are Actionable in regard it is a faculty to be a Measuror of Lands But Dodderidg Justice put it with a difference viz. Betwixt a Measurer of Land by the Pole and one who useth the Art of Geometrie or any of the Mathematicks for he said that in the first Case it is no scandal for that his Credit is not impeached thereby but it is contrary in the other Case because to be a Geometritian or Mathematitian is an Art or faculty which every man doth not attain unto And he put this Case If a man be Bailiffe of my Mannor there no such words can discredit him and by consequence he shall not have an Action for the words because the words do not found in discredit of his Office because the same is not an Office of Skill but an Office of Labour quod nota Hill 16 Jacobi in the Kings Bench. 395. BISHOP and TURNERS Case IN a Prohibition it was holden by the whole Court That for such things as a Church-Warden doth ratione officii no Action will lie by his successor against him in the Spiritual Court and a Churchwarden is not an Officer but a Minister to the Spiritual Court But it was holden that a Churchwarden by the Common Law may maintain an Action upon the Case for defacing of a Monument in the Church Trin. 16 Jacobi in the Kings Bench. 396. BLACKSTON and HEAP'S Case IN an Action of Debt for Rent the Case was this A man possessed of a Tearm for 20 years in the right of his Wife made a Lease for 10 years rendring Rent to him his Executors and assignes and died The Question was whether the Executors or the Wife should have the Rent Haughton and Crook Justices against Montague Chief Justice Doddridg being absent that the Rent was gon But it was agreed by them all that the Executors of the Husband should not have it But Montague held that the Wife should have it But it was agreed that if Lessee for 20 years maketh a Lease for 10 years and afterwards surrendreth his Tearm that the Rent is gon And yet the Tearm for 10 years continues And in the principal Case If the Husband after the Lease made had granted over the Reversion his grantee should not have the Rent But Montague said that in that Case the Wife in Chancery might be Releived for the Rent Mich. 16 Iacobi in the Kings Bench. 397. WAIT and the Inhabitants of STOKE'S Case WAyte a Clothier of Nubery was robbed in the Hundred of Stoke of 50l upon the Saboth day in the time of Divine Service The Question was whether the Hundred were chargeable or not for not making out Hue and Cry And 3 of the Justices were against Montague Chief Justice that they were chargeable For they said that the apprehending of Theeves was a good work and fit for the Saboth day and also fit for the Commonwealth Montague Chief Justice agreed that it was bonum opus and that it might be lawfully done But he said that no man might be compelled upon any penalty to do it upon that day For he said That if he hath a Judgment against I. S. and he comes to the Parish-Church where I. S. is with the Sheriffe and shews unto the Sheriffe I. S. upon the Saboth day and commandeth the Sheriffe to do his Office If the Sheriffe do arrest I. S. in Execution upon that day it is good but if he doth not arrest him it is no escape in the Sheriffe And he took a difference betwixt Ministerial Acts and Judicial Acts for the first might be done upon the Saboth day but Judicial Acts might not But the case was adjudged according to the opinion of the three other Justices Pasch 17 Iacobi in the Kings Bench. 398. SPICER and SPICE'S Case UPon a special Verdict the Case was this A man seised of Gavil-kind Land devised the same to his Wife for life paying out of it 3l per annum to his eldest son and also devised the Land to his second Son paying 3l per annum to his third Son and 20s to such a one his Daughter and whether the second Son had the Land for his life or in Fee was the Question And it was adjudged that he had a Fee-simple in it by reason of the payment of the Collateral Sums of 3l and 20s to his brother and sister which charge to the brother might continue af-after the death of the Devisee and if he should have but an estate for life his charge should continue longer then his own estate And so it was adjudged Mich. 17 Iacobi in the Kings Bench. 399. IN a Habeas Corpora which was to remove two men who were imprisoned in Norwich The Case was this That within Norwich there was a Custom that two men of the said place should be chosen yearly to make a Feast for the Bailiffs and upon refusal for to do it that they should be Fined and imprisoned which two men brought to the Barr by the Habeas Corpra were imprisoned for the same cause It was urged and much stood upon That the Custom was no good Custom for the causes and reasons which are delivered in Baggs Case in C. 11. part But yet at the last the Court did remand
it is not known whether he be guilty or not and in Cuddingtons Case it was a general Pardon and that was the cause that the Action did lie for that it is not known whether he committed the Felony or not But they conceived that if it had been a particular Pardon that then in that case the Action would not have been maintainable For the procuring of a special Pardon doth presuppose and it is a strong presumption that the party is guilty of the offence Note it did not appear in the Case of Fines the principal Case whether the Pardon by which Dr. Spicer was pardoned were a general Pardon or whether it were a particular and special Pardon Pasch 21 Iacobi in the Kings Bench. 415. DAVER's Case IN Davers Case who was arraigned for the death of William Dutton Ley Chief Justice delivered it for Law That if two men voluntarily fight together and the one killeth the other if it be upon a sudden quarrel that the same is but Man-slaughter And if two men fight together and the one flieth as far as he can and he which flieth killeth him who doth pursue him the same is Se defendendo Also if one man assaulteth another upon the High-way and he who is assaulted killeth the other he shall forfeit neither life nor lands nor goods if he that killed the other fled so far as he could Quod nota Pasch 21 Jacobi ân the Court of Wards 416. Sir EDWARD COKE's Case THis Case being of great consequence and concernment The Master of the Court of Wards was assisted by four of the Judges in the hearing and debating of it and after many Arguments at the Barr the said four Judges argued the same in Court viz. Dodderidge one of the Justices of the Kings Bench Tanfield Lord chief Baron of the Exchequer Hobart Lord Chief Justice of the Court of Common Pleas and Ley Lord Chief Justice of his Majesties Court of Kings Bench The Case in effect was this Queen Elizabeth by her Letters Patents did grant to Sir Christopher Hatton the Office of Remembrancer and Collector of the first Fruits for his life Habendum to him after the death or surrender of one Godfrey who held the said Office then in possession Sir Christopher Hatton being thus estated in the said Office in Reversion and being seised in Fee-simple of diverse Mannors Lands and Tenements did Covenant to stand seised of his said lands c. unto the use of himself for life and afterwards to the use of J. Hatton his son in tail and so to his other sons intail with the Remainder to the right heirs of J. Hatton in Fee with Proviso of Revocation at his pleasure during his life Godfrey the Officer in possession died and Sir Christopher Hatton became Officer and was possessed of the Office and afterwards he became indebted to the Queen by reason of his said Office And the Question in this great Case was Whether the Mannors and Lands which were so conveyed and setled by Sir Christopher Hatton might be extended for the said Debt due to the Queen by reason of the Proviso and Revocation in the said Conveyance of Assurance of the said Mannors and Lands the debt due to the Queen was assign'd over and the Lands extended and the Extent came to Sir Edward Coke and the heir of John Hatton sued in the Court of Wards to make void the Extent And it was agreed by the said four Justices and so it was afterwards decreed by Cranfield Master of the Court of Wards and the whole Court That the said Mannors and Lands were liable to the said Extent And Dodderidge Justice who argued first said that the Kings Majestie had sundry prerogatives for the Recovery of Debts and other Duties owing unto him First he had this prerogative ab origine legis That he might have the Lands the Goods and the Body of the Person his Debtor in Execution for his Debt But at the Common Law a common person a common person could not have taken the body of his debtor in execution for his debt but the same priviledg was given unto him by the Statute of 25. E. 3. cap. 17. At the Common Law he said that a common person Debtee might have had a Levari facias for the Recovery of his Debt by which Writ the Sheriffe was commanded Quod de terris Catallis ipsius the Debtor c. Levari faciat c. but in such Case the Debtee did not meddle with the Land but the Sheriffe did collect the Debt and pay the same over to the Debtor But by the Statute of West 2. cap 20. The Debtee might have an Elegit and so have the moyetie of the Lands of his Debtor in Execution for his Debt as it appeareth in C. 3. part 12. in Sir William Harberts Case Secondly He said That the King had another prerogative and that was to have his Debt paid before the Debt of any Subject as it appeareth 41. E. 3. Execution 38. and Pasc 3. Elizabeth Dyer 197. in the Lord Dacres and Lassels Case and in M. 3. E. 6. Dyer 67 Stringfellows Case For there the Sheriffe was amerced because the King ought to have his Debt first paid and ought to be preferred before a Subject vid. 328 Dyer There the words of the Writ of Priviledg shew that the King is to be preferred before other Creditors By the Statute of 33. H. 8. cap. 39. The Execution of the Subject shall be first served if his Judgment be before any Processe be awarded for the Kings debt In the Statute of 25. E. 3. Cap. 19. I find that by the Common Law the King might grant a Protection to his Debtor that no other might sue him before that the King was satisfied his debt See the Writ of Protection Register â 81. B. the words of which are Et quia nolumus solutionem debitorum nostrorum caeteris omnibus prout ratione Perogativae nostrae totis temporibus retroactis usitatae c. But that grew such a Grievance to the Subject that the Statute of 25. E. 3. Cap. 19. was made And now by that Statute a common person may lawfully sue to Judgment but he cannot proceed to Execution and so the Kings Prerogative is saved unless the Plaintiffe who sueth will give security to pay first the Kings Debt For otherwise if the Paty doth take forth Execution upon his Judgment and doth levy the money the same money may be seized upon to satisfie the Kings Debt as appeareth in 45. E. 3. title Decies tantum 13. The third Prerogative which the King hath is That the King shall have the Debt of the Debtor to the Kings Debtor paid unto him v. 21 H. 7. 12. The Abbot of Ramseys Case The Prior of Ramsey was indebted to the King and another Prior was indebted to the Prior of Ramsey and then it was pleaded in Barr that he had paid the same Debt to the King and the Plea holden for a good Plea
a Capias lay upon a force although it did not lie in case of Debt Agreement c. The King is Parens Legum because the Laws flowed from him he is Maritus Legum For the Law is as it were under Covert Baron he is Tutor Legum For he is to direct the Laws and they desire aid of him And he said that all the Land of the Kings Debtor are liable to his Debt The word Debitor is nomen equivocum and he is a Debtor who is any ways chargeable for Debt Damages Dutie Rent behind c. The Law amplifies evry thing which is for the Kings benefit or made for the King If the King releaseth all his Debts he releases only debts by Recognizance Judgment Obligation Specialtie or Contract Every thing for the benefit of the King shall be taken largely as every thing against the King shall be taken strictly and the reason why they shall be taken for his benefit is because the King cannot so nearly look to his particular because he ãâã intended to consider ardua regni pro bono publico The Prerogative Laws is not the Exchequer Law but is the Law of the Realm for the King as the Common Law is the Law of the Realm for the Subject The Kings Bench is a Court for the Pleas of the Crown The Common Pleas is for Pleas betwixt Subject and Subject and the Exchequer is the proper Court for the Kings Revenues 13. E. 4. 6. If the King hath a Rent-charge he by his Prerogative may distrein in any the Lands of the Tenant besides in the Lands charged with the Rent 44. E. 3. 15. although that the partie purchaseth the Lands after the Grant made to the King but then it is not for a Rent but as for a dutie to the King And the King in such case may take the Body Lands and Goods in Execution See the Lord Norths Case Dyer 161. where a man became Debtor to the King upon a simple Contract N. When he was Chancellor of the Augmentation received a Warrant from the Privy Councel testifying the pleasure of King E. 6. That whereas he had sold to R. c. That the said Chancellor should take Order and see the delivery of c. and should take Bond and Sureties for the King for the payment of the money By force of which Warrant he sent one T. his Clark to take a Bond of W. for the payment of the money and he took Bond for the King accordingly and brought the same to the Chancellor his Master and delivered the same to him to the Kings use and presently after he deliverd the same back to T. to deliver over to the Clark of the Court who had the charge of the keeping of all the Kings Bonds and Specialties And when T. had received the same back he practised with R. and W. to deliver them the Bond to be cancelled and so it was done and cancelled And it was holden in that Case because that the said Bond was once in the power and possession of N. that he was chargeable with the Debt But the Queen required the Debt of R. and W. who were able to satisfie the Queen for the same In Mildmay's Case cited before there it was holden That the Queen might take her Remedy either against the Parties who gave the insufficient Warrant or against Mildmay himself at her Election So a man he said shall be lyable for damages to the King for that is taken to be within the word Debita In Porters Case cited before there was neither Fraud Covin nor Negligence and yet the persons who presented Porter to the King to hold the Office were chargeable for his negligence whom they preferred to be Master of the Mint But in that Case The Bodie and goods of Porter were delivered to his Sureties as in Execution to repay them the monie which the King had levied of them These Cases prove that the word Debitor is taken in a large sence That the King shall have for the Debts due to him the Bodie Goods and Lands in Execution The word Goods doth extend to whatsoever he hath 11. H. 7. 26. The King shall have the Debt which is due to his Debtor upon a simple Contract and therein the Debtor of the Debtor shall not wage his Law For after you say that you sue for the King it is the Kings Debt and the King if he please may have Evecution of it An Ejectione firme was brought in the Exchequer by Garraway against R. T. upon an Ejectment of Lands in Wales and it was maintainable in the Exchequer as well as a Suit shall be maintainable here for an Intrusion upon Lands in Wales upon the King himself and the King shall have Execution of the thing and recover Damages as he shall in a Quo minus in satisfaction of a Debt which is due by his Debtor to the King 8. H. 5. 10. There the Kings Debtor could not have Quo minus in the Exchequer The Case there was That a man Indebted to the King was made Executor and by a Quo minus sued one in the Exchequer who was indebted unto his Testator upon a simple Contract as for his proper debt and the Quo minus would not lie because the King in that Case could not sue forth Execution and every Quo minus is the Kings Suit and is in the name of the King 38. Ass 20. A Prior Alien was arrear in Rent to the King The Prior brought a Quo minus in the Exchequer against a Parson for detaining of Tythes here is a variance of the Law and the Court for the Right of Tythes ought to be determined by the Ecclesiastical Law and it was found by Verdict for the Prior. A Serjeant moved That the Court had not jurisdiction of the Cause To whom it was answered that they had and ought to have Jurisdiction of it For that when a thing may turn to the advantage of the King and hasten his business that Court had Jurisdiction of it and divers times the said Court did hold jurisdiction in the like Case and thereupon issue was joyned there and the Reporter made a mirum of it But it seems the Reporter did not understand the Kings Prerogative For it is true That such Suit for Tythes doth not fall into the Jurisdiction of the Kings Bench or Common Pleas but in the Exchequer it is otherwise And if the Suit be by Quo minus it is the Kings Suit At a common persons Suit the Officer cannot break the house and enter but at the Kings Suit he may And a common person cannot enter into a Liberty but the King may if it be a common Liberty But for the most part when the King granteth any Liberty there is a clause of Exception in the Grant That when it shall turn to the prejudice of the King as it may do in a special Case there the King may enter the Liberty and a house is a Common Liberty and the
Cestuy que use when he entreth and maketh a Lease he hath no reversion nor shall punish waste And as it is in the Creation so is it in the Continuance 4 H. 7. 18. If Cestuy que use for life or in tail maketh a Lease for life it is warranted during his own life by the Statute of 1 R. 3. but if Tenant for life at the Common Law maketh a Feoffment or a lease for life there the first Lessor ought to avoid this forfeiture by entrie and it is not void by the death of the second Lessor viz. the Tenant for life 27 H. 8. 23. A Feme Covers is Cestuy que use the husband maketh a Feoffment and dieth the Feoffment is void by his death Br. Feoffments to Uses 48. If Cestuy que use for life levieth a fine it is no forfeiture but good by the Statute of 1 R. 3. during his own life And if in such case Proclamations pass there needeth no claim nor entrie within five years but the Law is contrarie of Tenant for life by the Common Law for if Tenant for life at the Common Law levieth a fine it is a forfeiture Dyer 57. Cestuy que use for life or in tail maketh a Lease for life the Lease is determined by the death of Cestuy que use and the Lessee is become Tenant at sufferance but a Lease for life by Tenant for life at the Common Law is not determined by the death of Lessee for life who was Lessor and his Tenant is tenant for life and not at sufferance as in the Case before and the first Lessor ought to avoid it by entrie Br. Feoffments to Uses 48. A Recovery by Cestuy que use in tail or in fee is ended by his death By these Cases appears a main difference betwixt the validitie of a Feoffment by Cestuy que use and the Feoffment at the Common Law The Statute of 27 H. 8. of Uses doth not execute Uses which are in abeyance C. 1. part Chudleigh's Case 9 H. 6. by the Common Law the Devise to an Enfant in ventre samier is good but by the Statutes of 32 and 34 H. 8. of Wills such a Devise is not good for the Statute Law doth not provide for the putting of lands in abeyance By the Statute of 1 R. 3. All Feoffments and Releases c. shall be good and effectual to those to whom they are made to their uses And this Feoffment in our Case was not made to a man in Nubibus Cestuy que use by this Statute of 1 R. 3. makes a lease for years the remainder over to the right heirs of I. S. the remainder is not good for the Statute doth not put it in abeyance for the remainder ought to be limited to one in esse 21 H. 8. cap. 4. giveth power to Executors to sell that Executor who proveth the Will shall sell and when he selleth if he have any right to the land the right of the said Executor is not gone by that Statute So if Commissioners upon the Statute of Bankrupts sell the Lands of the Bankrupt and one of the Commissioners hath right to the land so sold his right is not extinct And so in this Case the Statute limits what shall pass Upon the Statute of â3 Eliz. cap. 4. which makes the lands of Receivers liable for their debts if the King selleth the right of the Accomptant passeth but not the Kings right 17 E. 3. 60. An Abbot having occasion to go beyond the Seas made another Abbot his Procurator to present to such Benefices which became void in his absence That Abbot presents in the name of him who made him Procurator to one of his own Advowsons the right of his own Advowson doth not pass but yet it is an usurpation of the Abbot which went beyond sea to that Church What is the nature of this right All rights are not giâen away by Feoffments at the Common Law Lit. 672. Land is given unto husband and wife in tail the husband maketh a Feoffment and takes back an Estate to him and his wife both of them are remitted Which Case proveth that the husband hath left in himself a right notwithstanding the Feoffment 41 E. 3. 17. 41 Ass 1. John at Lee's Case So at the Common Law a Feoffment doth not give away all the right This right doth stick so fast in the issue as the Statute of West 2. cap. 1. can back it unto him 2 E. 3. 23. 22 E. 3. 18. At the Common Law if Tenant in tail had offered to levie a fine the Judges ought not to receive it but ought to have refused it if it had appeared unto them that the Conusor was Tenant in tail the same was before the Statute of 4 H. 7. which gave power to Tenant in tail to levie a fine for the Statute of West 2. Cap. 1. saies Quod finis sit nullus 2. E. 2. age 77. 2 E. 3. 33. 3 E. 3. 1. 24 E 3. 25. If Donee in tail levieâh a Fine yet there is no remedie against his Tenant for he shall not be compelled to attorn for that the right is in the Donor â E. 2. Avowry 181. 48 E. 3. 8. Avowry was made upon the Donee in tail notwithstanding that he made a Feoffment and Avowry is in the realtie and right 4 E. 3. 4. 4 H. 6. 28. 10 H. 7. 14. In a Replevin ancient Demesne is a good plea because the Avowry is in the realtie The Donor shall know for homage upon the Donee after that the Donee hath made a Feoffment 7 E. 4. 28. the Donee shall do homage And Litt. 90. saith That none shall do homage but such as is seised in his own right or in the right of another 2 E. 2. Avowry 85. 7 E 54. 28. 15 E. 4. 15 Gard. 116. the issue shall be in Ward notwithstanding a Feoffment by Tenant in tail Com. 561. Tenant in tail maketh a Feoffment yet the right of the tail doth remain in the Tenant in tail 21 H. 7. 40. Tenant in tail of a Rent grants the same in Fee if an Ancestor collateral releaseth with Warranty the same bindeth the Tenant in tail There is a common Rule That a Warranty doth not bind when a man hath not a right The Cases cited in C. 1. part Albonies Case where Feoffments give Rights I agree Barton and Ewers Case A man made a Feoffment of Land of which he had cause to have a Writ of Error he gave away his Writ of Error by the Feoffment I agree all those Cases for that is in Cases of Feoffments at the Common Law but in our Case the Feoffment is by the Statute of 1 R. 3. In our Case there is Jus habendi possedendi recuperandi It is like unto a plant in Winter which seemeth to be dead yet there is in it anima vegitativa which in due time brings forth fruit So the right in our Case is not given away nor is it in abeyance
but in Francis Bigot which may be regained in due time Dyer 340. there was Scintilla juris as here in our Case 19 H. 8. 7. Where Tenant in tail maketh a Feoffment and the Feoffee levieth a fine and five years pass there it is said that the Issue in tail shall have five years after the death of Tenant in tail who made the Feoffment and the reason is because he is the first to whom the right doth discend This Case was objected against me yet I answer that Tenant in tail in that Case hath right but he cannot claim it by reason of his own Feoffment he cannot say he hath right but another may say he hath right In our Case Francis Bigot cannot say he hath a Right in him but another may say he hath a Right It is like where Tenant in Fee taketh a Lease for years by Deed Indented of his own Lands He during the years cannot say that he hath Fee yet all other may say that he hath the Fee C. 4. part 127. The King shall avoid the Feoffment for the benefit of a Lunatique which Feoffment the Lunatique had made and shall not the King avoid a Feoffment which a Lunatique hath made for his own benefit viz for the benefit of the King himself I conceive that he shall Secondly Admit the right be in the person viz. in Francis Bigot yet they object that it is a right of Action and so not forfeited If this right be in the person at the time of the Attainder it shall be forfeited if it be not in his person but in Nubibus yet it shall be forfeited Tenant in tail makes a Feoffment unto the use of himself and his wife in tail if the old right of entail rest or not in his person it is forfeited to the King 34 Eliz. this very Point was then adjudged Where Tenant in tail before the Statute of 27 H. 8. of Uses made a Feoffment unto the use of himself and his wife in tail It was resolved upon mature deliberation by all the Judges of England that the old Estate tail was in such case forfeited for Treason Set this Judgment aside yet it rests upon the Statute of 26 H. 8. A general Act for forfeiture for Treason and the particular Act of 31 H. 8. which was made for the particular Attaindor of Francis Bigot I will argue argue only upon the Statute 26 H. 8. which hath three clauses First to take away Sanctuary Secondly to provide that no Treason be committed and the Offender punished The third which clause I am to deal with which giveth the forfeiture of Lands of Inheritance c These three clauses do depend upon the Preamble It was high time to make this Statute For when H. 8. excluded the Pope he was to stand upon his guard And that year of 26 H. 8. there were five several Insurrections against the King therefore it was great wisdom to bridle such persons King Ed. 6. and Queen Mary repealed divers Statutes for Treason and Felony yet left this Statute of 26 H. 8. to stand in force Anno 5 E. 6. cap. 5. this Statute of 26 H. 8. somewhat too strict was in part repealed viz. That the Church lands should not be forfeited for the Treason of the Parson This third branch doth insist upon a Purview aâd a Saving and both agree with the Preamble The Purview is ample Every Offender and Offenders of any manner of High Treason shall forfeit and lose c. I observe these two words in the Statute shall Forfeit those things which are forfeitable and Lose those things which are not forfeitable But it shall be lost that the heir of the Offender shall not find it shall Forfeit and lâse to the King his heirs and successors for ever so it is a perpetual forfeiture shall forfeit all his Lands which includes Use Estate and Right by any right title or means So you have Estate Right Title and Use Here Francis Bigot shal forfeit the Castle and Mannor of Mulgrave unto the King his heirs and Successors and he must forfeit the Land Right Title and Use otherwise it cannot be to the King for ever and what is saved to strangers all shall be saved and what will you not save to the Offender and his heirs all his Lands Right c. as was saved to strangers It was objected that it was not an Act of Assurance but an Act of Forfeiture which is not so strong as an Act of Assurance I do not doubt of the difference but how much will that difference make to this Case doth the Statute goe by way of Escheat it doth not but in case of Petty Treason Land shall Escheat but when the Statute of 25 E. 3. speaketh of High Treason the words of the said Statute are Shall forfeit the Escheat to the King But is the Right devided from the King Truely no the word Forfeit take it in nomine or in natura is as strong a word as any word of Assurance Alienare in the Statute of West 2. cap. 1. Non habeant illi potestatem alienandi so non habent illi potestatem forisfaciendi is in the nature of a Gift Com. 260. Forfeiture is a gift in Law Et fortior est dispositio legis quam hominis and so as strong as any assurance of the partie If a Statute give the Land to the King then there needeth not any Office 27 H. 8. Br. Office Com. 486. The Right vests before Office It was objected that the statute of 26 H 8. doth not extend to a right of Action but to a right of Entrie The purpose of this Act of 26 H. 8. is not to attaint any particular person as the Statute of 31 H. 8. was made for the particular Attaindor of Francis Bigot 5 E. 4. 7. Cestuy que use at the Common Law did not forfeit for Felony or Treason but by this Act of 26. H. 8. Cestuy que use shall forfeit both Use and Lands out of the hands of the Feoffees 4 E. 3. 47. 4 Ass 4. The husband seised in the right of his wife at the Common Law for Treason shall not forfeit but the profits of the lands of his wife during his life and not the Freehold it self but by this Act of 26 H. 8. the Freehold it self is forfeited 18 Eliz. in the Common Pleas Wyats Case C. 10. Lib. Entries 300. And if the Statute of 26 H. 8. had had no saving all had been forfeited from the wife 7 H. 4. 32. there it is no forfeiture yet by this Statute it is a forfeiture A right of Action shall not Escheat 44 E 3. 44 Entre Cong 38 C. 3 part the Marquess of Winchesters Case and Bowtiâs Case and C 7. part Inglefieldâs Case A right of Action per se shall not be forfeited by the Rules of the Common Law nor by any Statute can a right of Action be transferred to another but by the Common Law a right of Action may
is in the wife but the cause thereof is because it was once coupled with a possession C. 7. part Nevils Case There was a question whether an Earldom might be entailed and forfeited for Treason which is a thing which he hath not in possession nor use but is inherent in the blood And there resolved that the same cannot be forfeited as to be transferred to the King but it is forfeited by way of discharge and exoneration 12 Eliz. Dyer the Bishop of Durhams Case There if it had not been for the saving the Regal Jurisdiction of the Bishop had been given to the King by the Statute of 26 H. 8. This Statute of 26 H. 8. was made for the dread of the Traitor For the times past saw how dangerous Traitors were who did not regard their lives so as their lands might discend to their issue It was then desperate for the King Prince and Subject For the time to come it was worse The Law doth not presume that a man would commit so horrid an act as Treason so it was cited by Mr. Crook who cited the case That the King cannot grant the goods and lands of one when he shall be attainted of Treason because the Law doth not presume that he will commit Treason If the Law will not presume it wherefore then were the Statutes made against it If the Land be forfeited by the Statute of 26 H. 8. much stronger is it by the Statute of 31 H. 8. But then admit there were a Remitter in the Case yet by the Office found the same is defeated Without Office the Right is in the King Com. 486. c. 5. part 52 where it is said There are two manner of Offices the one which vests the estate and possession of the Land c. in the King where he had but a Right as in the case of Attaindor the Right is in the King by the Act of Parliament and relates by the Office Com. 488. That an Office doth relate 38 E. 3. 31. The King shall have the mean profits The Office found was found in 33 Eliz. and the same is to put the King in by the force of the Attaindor which was 29 H. 8. and so the same devests the Remitter Tenant in tail levieth a Fine and disseiseth the Conusee and dyeth the issue is remitted then proclamations pass now the Fine doth devest the Remitter C. 1. part 47 Tenant in tail suffereth a common Recovery and dyeth before Execution the issue entreth and then Execution is sued the Estate tail is devested by the Execution and so here in our Case it is by the Office C. 7. part 8. Tenant in tail maketh a Lease and dyeth his wife priviment ensient without issue the Donor entreth the Lease is avoided afterwards a Son is born the Lease is revived Com. 488. Tenant in capite makes a Lease for life rendring rent and for non-payment a re-entry and dyeth the rent is behind the heir entreth for non-payment of the rent and afterwards Office is found of the dying seised and that the land is hoâden in capite and that the heir was within age In the case the Entry for the Condition broken was revived and the Estate for life revived 3 E. 4. 25. A Disseisor is attainted of Felony the Land is holden of the Crown the Disseisee entreth into the Land and afterwards Office is found that the Disseisor was seised the Remitter is taken out of the Disseisee which is a stronger case then our Case for there was a right of Entire and in our Case it is but a right of Action which is not so strong against the King And for these Causes he concluded That the Judgment given in the Court of Pleas ought to be reversed And so prayed Judgment for the Lord of Sheffield Plaintiffe in the Writ of Error This great Case came afterwards to be argued by all the Judges of England And upon the Argument of the Case the Court was divided in opinions as many having argued for the Defendant Ratcliffe as for the Plaintiffe But then one new Judge being made viz. Sir Henry Yelverton who was before the Kings Sollicitor his opinion and argument swayed the even ballance before and made the opinion the greater for his side which he argued for which was for the Plaintiffe the Lord Sheffield And thereupon Judgment was afterwards given That the Judgment given in the Court of Pleas should be reversed and was reversed accordingly And the Earl Lord Sheffield now Earl of Mulgrave holdeth the said Castle and Mannor of Mulgrave at this day according to the said Judgment Note I have not set here the Arguments of the Judges because they contained nothing almost but what was before in this Case said by the Councel who argued the Case at the Bar. Pasch 21 Jacobi in the Kings Bench. 418. IT was the opinion of Ley Chief Justice Chamberlain and Dodderidge Justices That a Defendants Answer in an English Court is a good Evidence to be given to a Jury against the defendant himself but it is no good Evidence against other parties If an Action be brought against two and at the Assises the Plaintiffe proceeds only against one of them in that case he against whom the Plaintiffe did surcease his suit may be allowed a Witnesse in the Cause And the Judges said That if the Defendants Answer be read to the Jury it is not binding to the Jury and it may be read to them by assent of the parties And it was further said by the Court That if the party cannot find a Witnesse then he is as it were dead unto him And his Deposition in an English Court in a Cause betwixt the same parties Plaintiffe and Defendant may be allowed to be read to the Jury so as the party make oath that he did his endeavour to find his Witnesse but that he could not see him nor hear of him Pasch 21 Iacobi in the Kings Bench. 419. THe Husband a wife seised of Lands in the right of the wife levied a Fine unto the use of themselves for their lives and afterwards to the use of the heirs of the wife Proviso that it shall and may be lawfull to and for the husband and wife at any time during their lives to make Leases for 21 years or 3 lives The wife being Covert made a Lease for 21 years And it was adjudged a good Lease against the husband although it was made when she was a Feme Covert and although it was made by her alone by reason of the Proviso Pasch 21 Jacobi in the Common-Pleas 420. NOte that Hobart Chief Justice said That it was adjudged Mich. 15 Jacobi in the Common-Pleas That in an Action of Debt brought upon a Contract the Defendant cannot wage his Law for part and confesse the Action for the other part And it was also said That so it was adjudged in Tart's Case upon a Shop-book And vide 24 H. 8. Br. Contract 35. A Contract cannot be divided
pay the money there he shall recover damages besides the dutie Here the Action was brought before the request made and so no damage to the Plaintiff and the Judgment was that the Plaintiff recuperet damna predict viz. the damages laid in the Declaration Dodderidge Justice The Judgment ought to be Consideratum est quod Gleede recuperet damna quae sustinuit and not damna predict which are mentioned in the Declaration and then a Writ is awarded to enquire of the damages quae sustinuit The Judgment was reversed per Curiam Mich. 1 Caroli in the Kings Bench. Rot. 189. 455. TAYLOR and HODSKIN's Case IN an Ejectione firme upon a special Verdict it was found That one Moyle was seised of divers Lands in Fee holden in Socage and having issue four daughters viz. A B C D. A. had issue N. and died And afterwards Moyle devised the said Lands unto his wife for life and after her decease then the same equally to be divided amongst his daughters or their heirs Moyle died and afterwards his wife died and Hodskins in the right of B C D. three of the daughters did enter upon the Lands N. the daughter of A. married F. who entred and leased the Lands to the Plaintiff Taylor Whitfield for the Plaintiff The only point is Whether N. the daughter of A. one of the sisters shall have the fourth part of the lands or not by reason of the word Or in the Will It is apparent in our books C. 10. part 76 the Chancellor of Oxfords Case C. 3. part Butler and Bakers Case That Wills shall be construed and taken to be according to the intent of the Devisor And therefore Br. Devise 39. A devise to one to sell to give or do with at his will and pleasure is a Fee-simple And in our Case if N. shall not take a fourth part the word heirs should be of no effect C. 1. part in Shellies Case All the words in a Deed shall take effect without rejecting any of them and if it be so in a Deed à fortiori in a Will which is most commonly made by a sick man who hath not Councell with him to inform or direct him In this Case the three sisters who were living at the time of the Devise took presently by way of remainder and the word heirs was added only to shew the intent of the Devisor That if any of the three sisters had died before his wife that then her heir should take by discent because her mother had taken by purchase And by reason of the word heirs the heir of A. shall take by purchase and the disjunctive word or shall be taken for and as in Mallories Case C. 5. part A reservation of a Rent to an Abbot or his Successors there the word or shall be taken for and reddendo singula singulis Trin. 7. Jacobi in the Common Pleas Arnold was bound in a Bond upon Condition that he suffer his wife to devise Lands of the value of 400l to her son or her daughter and she devised the Lands to her son and her daughter And it was resolved that it was a good performance of the Condition And there the word or was taken for and And there Justice Warburton put this Case If I do devise all my goods in Dale or Sale it shall be a Devise of all my goods in both places and or shall be taken for and. In this Case the word heirs was not added of necessity for the heir of any of the sisters to take by purchase but only to make the heir of A. to take part of the Lands The Court was of opinion that it was stronger for the Plaintiff to have it or in the disjunctive For they said that if it were and then it would give the three sisters the Fee and not give the heir of A. a fourth part but being or there is more colour that she shall take a fourth part by force of the Devise It was adjourned Trin 2 Caroli Rot 913. in the Kings Bench. 456. ASHFIELD and ASHFIELD's Case THe Case was An Enfant Copyholder made a Lease for years by word not warranted by the Custome rendring Rent The Enfant at his full age was admitted to the Copyhold and afterwards accepted of the Rent The question was Whether this Lease and the acception of the Rent should bind or conclude the Enfant Crawley Serjeant argued That it was a void Lease and that the acception should not bar him It is a ground in Law That an Enfant can do no Act by bare contract by word or by writing can do any Act which is a wrong either to himself or unto another person or to his prejudice In this Case if the Lease should be effectual it were a wrong unto a stranger viz. the Lord and a prejudice unto himself to make a forfeiture of the Inheritance If an Enfant commandeth A. to enter into the land of I. S. and afterwards the Enfant entreth upon A. A is the Disseisor and Tenant and the Enfant gaineth nothing So if A entreth to the use of the Enfant and the Enfant afterwards agreeth to it in this Case here is but a bare contract and an agreement will not make an Enfant a Disseisor No more shall he be bound by a bare Deed or matter in writing without Livery 26 H. 8. 2. An Enfant granteth an Advowson and at full age confirmeth it all is void Br. Releases 49. Two Joynt-Tenants one being an Enfant releaseth to his Companion it is a void Release 18 E. 4. 7. An Enfant makes a Lease without reserving Rent or makes a Deed of grant of goods yet he shall maintain Trespass nay though he deliver the goods or Lease with his own hand the same will not excuse the Trespass nor will it perfect the Lease or make the grant of the goods good If the Contract have but a mixture of prejudice to the Enfant it shall be void â Jacobi in the Kings Bench Bendloes and Holydaies Case An Obligation made by an Enfant with a Condition to pay so much for his apparel because the Bond was with a penaltie it was adjudged void If Tenant at Will make a Lease for years he was a Disseisor at the Common Law before the Statute of West 2. cap. 25. 12 E. 4 12. Tenant at Will makes a Lease for years 10 E. 4. 18. 3 E. 4. 17. But if an Enfant be Tenant at will and he maketh a Lease he is no Disseisor In our Case if he had made Livery then I confess it had been a defeisible forfeiture and he mignt have been remitted by his entrie upon the Lord. Farrer for the Plaintiff The Lease is not void but voidable 7 E. 4. 6. Brian 18 E. 4. 2. 9 H. 6. 5. An Enfant makes a Lease for years and at full age accepts of the Rent the Lease is good because the Law saith that he hath a recompence Com. 54. A Lease for years the remainder
Statute of West 2. First they said That Copyholds are not within the letter of the Statute which speaks onely de tenementis per chartam datis c. Secondly they are not within the meaning of it 1. Because they were not untill 7 E. 4. 19. of any accompt in Law because they were but Estates at will 2. The Statute of West 2. provides against those who might makeâ a dissen heresin by Fine or Feoffment which Copyholders could not do 3. Because if Copyholders might give lands in tail by the Statute then the Reversion should be left in themselves which cannot be 4. The Makers of the Statute did not intend any thing to be within the Statute of Donis whereof a Fine could not be levied For the Statute provides Quod sinis ipso jure sit nullus 5. Great mischiefs would follow if Copyholds should be within the Statute of West 2. because there is no means to dock the estate and no customary conveyance can extend to a Copyhold created at this day 37 Eliz Lane and Hills case adjudged in the Common-Pleas was cited by Justice Harvey where a Surrender was unto the use of one in tail with divers remainders over in tail The first Surrenderee dyed without issue And first it was agreed and adjudged That it was no discontinuance 2. If it were a discontinuance yet a Formedon in the Remainder did not lie because there ought to be a Custom to warrant the Remainder as well as the first Estate tail For when a Copyholder in Fee maketh such a gift no Reversion is left in him but only a possibility And the Lord ought to avow upon the Donee and not upon the Donor And there is a difference when he maketh or giveth an estate of inheritance and when he maketh a Lease for life or years for in the one case he hath a Reversion in the other not 2. A Recovery shall not be without a special custom as it was agreed in the Case of the Mannor of Stepney because the Warrantie cannot be knit to such an Estate without a Custom And for express authority in the principal Case he cited Pits and Hockleâ's ase which was Ter Pasc 35 Eliz. rot 334. in the Common-Pleas where it was resolved That Copyholds were not within the Statute of Donis for the weakness and meanness of their estates For if they were within the Statute of West 2. the Lord could not enter for Felony but the Donor and the Services should be done to the Donor and not to the Lord of the Mannor And so and for these mischiefs he conceived That neither the meaning nor the words of the said Statute did extend to Copyholds Hill 34 Eliz. Rot. 292. in the Kings Bench Stanton and Barney's Case A Surrender was made of a Copyhold within the Mannor of Stiversden unto one and the heirs of his body and after issue he surrendred unto another And it was agreed by all the Justices That the issue was barred And Popham did not deny that Case but that it was a Fee conditional at the Common-Law and that post prolem suscitatam he might alien And so it was agreed in Decrew and Higdens case Trin. 36. Eliz. rot 54â in the Kings Bench and in Erish and Ives case 41 42 Eliz. in the Common-Pleas in an Evidence for the Mannor of Istleworth That no Estate tail might be of Copyhold without a Custom to warrant it Mich. 36 37 Eliz. in the Kings Bench it was adjudged That a Copyholder could not suffer a common Recovery and the reason was because that the Recovery in value is by reason of the Warrantie annexed to the Estate at the Common-Law which could not be annexed to a Customary estate And another reason was given because that he who recovers in value shall be in by the Recovery and the Copy of the Court-Roll only should not be his Evidence as Littleton and other books say it ought to be And Crook said That the Statute of Donis was made in restraint of the Common-Law And it should be very disadvantagious to the Lord if Copyhold should be construed to be within that Statute And therefore he conceived that the said Statute did not extend to Copyholds by any equitable construction And such difference was taken by Popham Chief Justice 42 Eliz. in the Kings Bench rot 299. in Baspool and Long 's Case For he said That a Custom which did conduce to maintain Copyholds did extend to them But a Statute or a Custom which did deprave or destroy them did not As if one surrender to the use of one for life the Remainder in Fee where the Custom is to surrender in Fee the Custom doth not extend thereunto because a Custom which goes in destruction of a Copyhold shall be taken strictly But if a man be Copyholder in Fee he may grant a Fee conditional Harvey Justice put some Cases to prove the small account the Law had of Copyholds at the time of the making of that Statute as 40 E. 3. 28. 32 H. 6. br Copyhold 24. And he said That there is not any book in the Law but only Mancels case in Plow Comment That the Statute of West 2. doth extend to Copyholds Hill 2 Caroli rot 235 in the Kings Bench. 459. LITFIELD and his Wife against MELHERSE A Writ of Error was brought upon a Judgment given in an Action upon the Case brought by Husband and Wife in the Common-Pleas for words spoken of the Plaintiffs wife And the Judgment in the Common-Pleas was That the husband and wife should recover And that was assigned for Error in this Court because the Husband only is to have the damages and the Judgment ought to be That the Husband alone should recover But notwithstanding this Error assigned the Judgment was affirmed by the opinion of the whole Court Pasch 2 Caroli rot 362. in the Kings Bench. 460 HOLMES and WINGREEVE's Case A Writ of Error was brought to reverse a Judgment given in the Court at Lincoln in an Action of Trespass there brought for taking away a Box with Writings And four Errors were assigned 1. Because the Plaintiffe did not appear by Attorney or in person at the retorn of the Attachment against the Defendant so as there was a discontinuance for the Plaintiffe ought to appear de die in diem 2. Because in his Declaration there he saith That the Defendant took a Box with Writings and doth not make any title to the Box nor shews that the same was lockt nailed or sealed 2 H. 7. 6. a. The certainty of the writings ought to be shewed that a certain issue may be taken thereupon Com. 85. 22 H. 6. 16. 14 H. 6. 4. 21 E. 3. He ought to shew the certainty of the writings 18 H. 1. Charters in a Box sealed C. 9. part Bedingfields case C. 5. part Playters case The Declaration was insufficient because the Plaintiffe therein did not name the certain number of the Fishes 3. He pleaded That he made a
removed but if the VVrit of Error want only form but is sufficient for the matter in substance the VVrit shall not abate but the partie may have a new VVrit of Error coram vobis residet c. Trin. 3 Caroli in the Kings Bench. 464. MILL's Case ACtion upon the Case for these words Thou hast Coyned Gold and art a Coyner of Gold Adjudged the Action will not lie for it may be he had Authority to Coyn and words shall be taken in mitiori sensu Pasch 3 Car in the Kings Bench. 465. BROOKER's Case THe question was VVhether the Feoffee of the Land might maintain a VVrit of Error to reverse an Attaindor by Vtglary and the Case was this William Isley seised in Fee of the Mannor of Sundridge in Kent had issue Henry Isley who was Indicted of Felony 18 Eliz. and 19. Eliz. the Record of the Indictment was brought into this Court and thereupon 20 Eliz. Henry Isley was outlawed William Isley died seised Henry Isley entred into the Mannor and Land as son and heir and being seised of the same devised the Mannor and Lands to C. in Fee who conveyed the same to Brooker and Brooker brought a Writ of Error to reverse the Outlawry against Henry Isley Holborn argued for the King and said that Brooker was no way privy to the attaindor of Henry Isley but a meer stranger and therefore could not maintain a Writ of Error And first he said and took exception that he had not set himself down Terre-Tenant in possession Secondly he saith in his Writ of Error That the Mannor and Lands descended to Henry Isley as son and heir when as he was attainted The third exception was That he saith that Henry Isley did devise the Lands and that he could not do because he was a person Attainted Fourthly he said that Brooker was not Tenant so much as in posse 4 H. 7. 11. If it were not for the words of Restitution the partie could not have the mean profits after the Judgment reversed 16 Ass 16. Lessee for years pleaded to a Precipe and reversed it the question was whether he should be in statu quo vi Librum for it is obscure If this Attaindor of Henry Isley were reversed yet it cannot make the devise good For there is a difference betwixt Relations by Parliament which nullifie Acts and other Relations Vi. 3 H. 7. Sentlegers Case Petition 18. The violent Relation of Acts of Parliament If a Bargain and Sale be the Inrollment after will make Acts before good but a Relation by Common Law will not make an Act good which was before void C. 3. part Butler and Bakers Case A gift is made to the King by Deed enrolled and before the enrollment the King granteth away the Land the Grant is void yet the enrollment by Relation makes the Lands to pass to the King from the beginning Admit in this Case that Brooker were Terre-Tenant yet he is not a party privy to bring a Writ of Error to reverse the Attaindor of him who was Tenant of the Land and I have proved That although the Attaindor were reversed yet he hath nothing because the Devise was void and is not made good by Relation It is a rule in our Books that no man can bring a VVrit of Error but a partie or privy 9 E. 4. 13. 22 E. 4. 31 32. 9 H. 6. 46. b. Ass 6 C. 3. part in the Marquiss of Winchesters Case The heir of the part of the mother cannot have the VVrit of Error but the heir of the part of the father may So if erronious Judgment be given in the time of profession of the eldest son and afterwards he is dereigned he shall have the Writ of Error In 22 H. 6. 28. The heir in special taile or by Custom cannot have Error But yet M. 18 Eliz. in Sir Arthur Henninghams Case it was adjudged That the special heir in tail might have a Writ of Error The Baile cannot maintain a Writ of Error upon a Judgment given against the Principal because he was not privy unto the Judgment therefore it shall be allowed him by way of plea in a Scire facias I never find that an Executor can have Error to reverse an Attaindor but for the misawarding of the Exigent Marshes Case was cited C. 5. part 111. Fitz 104. Feoffee at the Common Law could not have an Audita Quaerela in regard he was not privy 12 Ass 8. 41. Keâlaway 193. There the Terre-Tenant brought a Writ of Error in the name of the heir and not in his own name 24 H. 8. Dyer 1. There it is said That he who is a stranger to the Record shall have Error To that I answer That he in the Reversion and the particular Tenant are but one Tenant for the Fee is demanded and drawn out of him But in the principal Case at Barr no Land is demanded but a personal Attaindor is to be reversed Also there it is put That if the Conusee extend before the day there it is said that the Feoffee may have Error 17 Ass 24. 18 E. 3. 25. Fitz. 22. To that I answer That the Feoffee is privy to that which chargeth him for the Land is extended in his hands and if the Feoffee there should not have a Writ of Error the Law should give him no manner of remedy for there the Conusor himself cannot have Error because the Lands are not extended in his hands Also it is there said that the Feoffee brought a Scirefacias against him who had execution of the Land To that I answer That that is by special Act of Parliament Also there it is said That if the Parson of a Church hath an Annuity and recovereth and afterwards the Benefice is appropriated to a Religious house the Soveraign of the house shall have a Scirefacias I answer That in that Case he is no stranger for that he is perpetual Parson and so the Successor of the Parson who recovered 12 H. 8. 8. There a Recovery was against a Parson and there Pollard said that the Patron might have Error I answer That Pollard was deceived there for it is said before that the Parson hath but an Estate for life and then he viz. the Patron is as a Recoverer who shall have a Writ of Error Dyer 1. But the Parson hath the Fee and therefore Pollard was mistaken as it appeareth by Brook Fauxi fier de Recovery 51. 19 H. 6. 57 Newton A false verdict is had against a Parson the Patron cannot have an Attaint There is a difference if one be partie to the Writ although not partie to the Judgment Error 72. A Quare Impedit was brought by the King against the Patron and the Incumbent and Judgment only was had against the Patron and the Incumbent Parson brought a Writ of Error but if he had not been partie to the Writ he could not have maintained Error So in Attaint the partie to the Writ though not to the Judgment shall
being made at Dunkirk but to be performed in England The second If Tookley being the Attorney be such a party prosecutor as is within the Statutes The ancient Law of the Admirals Jurisdiction appears in our Books 8 E. 2. Corone 399. Staunton Justice It shall not be accounted the Sea where a man may see the land over the water And the Coroners were to do their office in such case and the County was to take notice thereof 40 Ass 25. Stamford 11. This Commission was at the Common-Law before the Statutes of Pyracie 46 E. 3. tras 38. Statham It is pleaded that the Defendant took the goods as Pyracie c. I infer thereupon that it was a good Justification 7 R. 2. tras 54. Statâam Trespass was brought for a Ship and Merchandises taken upon the Sea and holden good which proves that the Common-Law had jurisdiction upon the Sea and not the Admiral 6 R. 2. Protection 46. Protection quia profecturus super altum mare Belknap The Sea is within the Kings jurisdiction and the Sea is as well in the Kings protection as is the Land It may be objected That the Contract was made at Dunkirk and so out of the body of the County and so our Law cannot take notice of it and if the Admiral shall not have jurisdiction in such case it should remain undetermined To that I answer If all the matter were to be done at Dunkirk then all were a Marine case and the Admiral should have jurisdiction but if any part were to be done in England then it is otherwise M. 30 31 Eliz. C. 6 part 47. in Dowdalos case In an Action upon the Case upon Assumpsit the Plaintiff did declare That the Defendant at London did assume that such a ship should sail from Melcomb Regis in Suffolk to Abvile in France The issue was tryed in London because the Contract was made in England Pasch 28 Eliz. Gynne and Constantines Case there because it was part upon the Sea and part upon the Land the tryal was at the Common-Law and not in the Admiral Court 48 E. 3. 2. One did retein three Esquires to serve in France there because the Reteiner was here the tryal was here If a Mariner contract with me for wages to sail in such a ship he shall demand his wages at the Common-Law and not in the Admiral Court vi 39 H. 6. 39. There a Protection super vetilationem Calisiae c. cannot be moraturus because that the Sea is ever ebbing and flowing and doth not stand still So that if any part of the Contract be to be done upon the Land then Common-Law shall have the jurisdiction Wreck of the Sea shall be tryed at the Common-Law because it is cast upon the Land Dyer 326. t' E. 1. Avowry 192. A Replevin was brought of a ship taken upon the coast of Scarborough and carried into Norfolk and it was alleadged to be within the Statute of Malebridge for taking a Distress in one County and carrying of it into another County Bereford The King wills that the Peace be kept as well upon the Sea as upon the Land And our Case differs from Lacy's case C. 2. part Foâ in that case of Felony it is meer local but Contracts are not so local The second point Whether this be a prosecution within the Statutes because it was done by vertue of a Letter of Attorney from Mullibeck 32 E. 3. barr 264. Annuity 51. Qui per alium facit per seipsum facere videtur The Statute of Merton cap. 10. gave power to make Attorneys in any Court Com. 236. but the Attorney must look at his peril that that which he doth be a lawful act Here Mullibeck himself could not have justified this prosecution nor shall his Attorney â H. 7. 24. 28 H. 8. 2. Quod per me non possum per alium non possum If an Enfant make a Letter of Attorney to make Livery and Seisin and the Attorney maketh Livery accordingly he is a Disseisor C. 10. part 76. If the Court have not jurisdiction of the Cause the Minister must look to it at his peril otherwise he is punishable Tras 253. One may do that himself which he cannot do by Attorney The Lord may beat his villein but a stranger cannot do it for the Lord the Lord may distrein for Rent when it is not behind and the Tenant shall not have trespass but if the Bailiff distrein when no Rent is arrear trespass lieth against him 2 H. 4. 4. 9 H. 7. 14. In Trespass all are Principals Then the Attorney here and Mullibeck are both Trespassors against the Statutes And the doing of the Attorney at the command of the Master shall not avail him vi Dyer 159. doth conduce to the reason that the Attorney shall be punished It seems this suing in the Court of Admiralty is a Contempt for it is malum prohibitum and so either Mullibeck or the Attorney are punishable And in this case the Plaintiff hath his Election to sue Mullibeck or the Attorney and therefore having sued the Attorney the Action brought against him will well lie Calthrop for the Defendant It was objected That the Court of Admiralty did begin but in the time of King Edw. 3. But Dyer 152. proves the contrary For there in an Assise brought of the Office of Admiralty the Plaintiff doth declare the same to be an Office time out of mind c. which proves it to be a more ancient Office And in the Statute of 2 H. 5. cap. 6. There the words are to enquire of all offences c. as the Admirals after the old custom which proves that it is an ancient Office It 's true Avowry 192. makes against me but the Notes of that Case in writing proves that the book is misprinted I confess if part of the thing be to be done here upon the Land that it is triable at the Common-Law The Defendant in this our Case is not liable to the penalty because at the time of the making of these Statutes it was not known that any Charter-partie was made beyond the Seas 2 E. 3. Oblig 15. Debt was brought upon an Obligation made at Barwick where becaus this Court had not jurisdiction It was adjudged That the Plaintiff nihil capiat per breve Testament 16. A Testament bore date at Cane in Normandy which was proved in England Pole Upon an Obligation which bears date in Normandy a man shall not have an Action here but it is good in case of a Will proved here 6 E. 3. 17 18. The Abbot of Crowband granted an Annuity and the Deed was made in Scotland If the Deed had been the ground of the Action then the Action would not have lien but because the Deed bore date before time of memory the Annuity did lie for the Action was not brought upon the Deed but upon the Prescription 1 E. 3. 1. 18. 8 E. 3. 51. It is ruled where the title is made by a
and for these causes he prayed Judgment for the Defendant Observe Reader the Argument of Calthrope he doth not speak to the point where part of the thing or Contract is upon the Sea and part upon the Land as it was urged by Andrews who argued on the other side The Case was adjourned Pasch 3 Caroli rot 362. in the Kings Bench. 475. IT was cited to be adjudged That if a man purchase the next Avoidance of a Church with an intent to present his son and afterwards he present him that it is Symony within the Statute Pasch 3 Caroli in the Kings Bench. 476. SUTTON the Chancellor of Gloucester's Case IN the Case of Sutton who was Chancellor of Gloucester and put out of his place for insufficiency in the Ecclesiastical court Trotman moved for a Prohibition to the Spiritual Court and said that the Bishop had power to make his Chancellor and he only hath the Examination of him and the allowance of him as it is in the Case of a Parson who is presented to the Bishop and said that if his sufficiency should be afterwards reexamined it would be very perilous Doddridg Justice If an Office of Skill be granted to one for life who hath no skill to execute the Office the grant is void and he hath no Frank-tenement in it A Prohibition is for two causes First to give to us Jurisdiction of that which doth belong unto us And secondly when a thing is done against the Law and in breach of the Law then we use to grant a Prohibition Jones Justice Brook had a grant of the Office of a Herald at Arms for life and the Earl Marshal did suspend him from the execution of his Office because he was ignorant in his profession and full of Error contrary to the Records and it was the opinion of the Justices that because he was ignorant in such his Office of Skill that he had no Freehold in the Office In the Principall Case the Prohibition was denyed And afterwards Sutton was put out of his Office by Sentence in the Spiritual Court for his insufficiency Pasch 3 Caroli in the Kings Bench. 477. SYMM'S Case TWo men having speech together of John Symms and William Symms one of them said The Symmses make Half-crown peeces and John Symms did carrie a Cloak-bag full of clippings And whether the Action would lie was the Question because it was incertain in the person For he did not say these Symmses but The Symmses Like unto the Case where one Farrer being slain and certain persons being Defendants in the Star-Chumber one having speech of them said These Defendants did murder Farrer and it was adjudged that the Action would not lie for two causes First because the words These was uncertain in the person And secondly it was incertain in the thing For it might be that they had Authority to do it as in Mills Case 13 Jac. in the Kings Bench Thou hast Coyned Gold and art a Coyner of Gold Thirdly a Cloakbag of clippings that is also uncertain for it might be clippings of Wooll or other things or it might be clippings of Silver from the Goldsmith For the Goldsmith that maketh Plate maketh clippings And fourthly It is not shewed any certain time when the words were spoken And for these causes it was adjudged that the Action would not lie Pasch 3 Caroli in the Kings Bench. 478. WHITTIE and WESTON'S Case AN Action of Debt was brought upon the Statute of 2 E. 6. and the Plaintiff declared That at the time of the Action brought he was Parson of Merrel and that Weston the Defendant did occupie such Lands and sowed them with corn Anno 21 Jac. and that he did not fet forth his Tythe-corn c. The Defendant pleaded in barr of the Action That W. W. Prior of the Hospital of St John of Jerusalem was of the Order of Hospitalers c. and that he held the said Lands free from the payment of Tythes and that the Priory came by the Statute of 32. H. 8. to the King By vertue of which Statute the King was seised thereof and that the same descended to Queen Elizabeth who granted the Lands unto Weston to hold as amply as the late Prior held and that he was seised of the Lands by vertue of that grant Et propriis manibus suis excolebat Upon this Plea the Plaintiff did demurr in Law Noy argued for the Plantiff There are three points in the Case First If these Lands the possessions of the Hospitalers of St John which they held in their own hands were discharged of Tythes Secondly If there be any thing in the Statute of 32 H. 8. by which the Purchasor of the King should be discharged Thirdly Admitting that it shall be a discharge if the Defendant hath well entitled himself to such discharge or Priviledg First it is not within the Statute of 31 H. 8 cap. 13. for that Statute did not extend to the Order of St John Secondly the Statute of 31 H. 8. cap. 13. doth not discharge any but what was then dissolved Thirdly The Statute of 32 H. 8 cap. 24. gives the possessions of the Hospitalers of St Johns to the King and not the Statute of 31 H. 8. Note that the Defendant did recite the branch of the Statute of 31 H. 8. cap 13. That as well the King his heirs and successors as all and every such person and persons their heirs and assignes which have or hereafter shall have any Monasterie c. or other Religious or Ecclesiastical houses or places shall hold c according to their Estates and Titles discharged and acquitted of the payment of Tythes as freely and in as large and ample manner as the said Abbots c. had or used Also he recited the Statute of 32 H. 8. cap. 7 which Enacts that none shall pay Tythes who by Law Statute or Priviledg ought to be discharged The Statute of 31 H. 8. recites that divers Abbies c. and other Religious and Ecclesiastical houses and places have been granted and given up to the King The Statute enaâts that the King shall have in possession for ever all such late Monasteries c. and other Religious houses and places c. And also enacts that the King shal have not only the said Monasteries c. but also all other Monasteries c. and all other Religious and Ecclesiastical houses which hereafter shall happen to be dissolved suppressed renounced relinquished forfeited given up or by any other means come to the King and shall be deemed adjudged vested by Authority of this present Parliament in the very actual possession and seisin of the King for ever in the state and condition they now be Vi. The Statute And shall have all priviledges c. in as ample manner and form as the late Abbots c. had held or occupied c. The Question then is Whether the men of the Hospital of St John at Jerusalem are intended to be within the
said Statute of 31 H. 8. And I conceive that they are not It doth not appear in the pleading that the Priory of St John was an Ecclesiastical House therefore it ought to have been averred It is true to plead that such a man hath entred into Religion is intended that he is a person dead in Law They were never Ecclesiastical nor so accounted they must be both Religious and Ecclesiastical who are within the Statute of 31 H. 8. For the said Statute doth not extend to Religious houses unless they be Ecclesiastical Tryal 99. proves that they were Religious 21 H. 7. 7. And the Statute of Templers 17 E. 2. do shew that they were Canonized which is admitted unto a Rule of their own Law and not that they were made Saints or that they were Ecclesiastical 1 E. 3. 7. Nonability 4. They were dead persons in Law Feoffments 68. proves that they were religious but whether they were Lay or Ecclesiastical I have not read In the difference of Summons to Parliaments unto the Templers the Summons is Vobis mandamus in fide legeantiâs but the Summons to a Spiritual Lord is in fide electione and so was the Summons to the Prior of St Johns of Jerusalem but that was because he held in Frankalmoign but that doth not prove him to be Ecclesiastical for first they exercised themselves in Arms It was part of their Order armis se exercere and that is against the Rule of the Common Law to meddle with blood Secondly They used no Imposition of hands but only a Robe nor had they so much Ceremony as a Knight of the Bath and yet the Knights of the Bath are not Ecclesiasticall So there is nothing in their Creation or Order that makes them Ecclesiastical For they were Lay-Monks of the Order of St Anthony The Jesuites have Lay-Brethren and not Ecclesiastical 44. Ass 9. There the Defendant pleaded in barr That the Prior was a Lay-man and so not under any Rule and it is there admitted that he was a Lay-man and yet that he might be Prior and bring the Action in his own name and not as Prior with his brethren which proves that the residue were dead persons in Law If there be professions alledged in one of the Hospitals of St John of Jerusalem how shall it be tryed By the Country Tryal 99. Profession was alleadged in the Plaintiff who was a Knight of the Order of the Templers and it was commanded to certifie it And the Bishop could not enquire of it because the Order of a Knight Templer was exempted by the Pope But Tryal 98. there it was certified by the Bishop yet all our books are contrary to it 2. R. 3. 4. Si profissio allegata sit in quodam militi Sancti Johannis Jerusalem quia immediate sub Papa sunt non habere cuiscribere possunt c. 21 H. 7. 7. Selden 1 21. in his History of Tythes that they were accounted no part of the Clergy but meerly Lay. With us they were accounted Lay and therefore it is not material what they were accounted of in other places A Colledg is a Lay Corporation If they be disseised an Assise must be brought The Statute of 1. and 2. Philip and Mary is That men might devise to spiritual Corporations notwithstanding the Statute de terris ad manum mortuum nonpoâând ãâã or any other Statute to the contrary Dyer 254. There a Devise was unto a Colledg and Grammar-School and holden a good Devise because the Statute of Philip and Mary ought to be favourably expounded being for the benefit of the Corporation I take another reason from the manner of payment of Tythes Ecclesiastical persons payed Tythes but no Tythes were paid by the Hospitalers of St Johns of Jerusalem The Statute of 27 H. 8. dissolves Abbies c. but doth not relate to any formerly given up c. and the reason was because they were but petty Abbies The Statute of 31 H. 8. dissolves none but recites that whereas divers have given up c. or were to be given up but shews no reason for divers inquisitions issued forth to enquire of their Lands but the Statute of 32 H. 8. doth not shew any such reasons but other reasons because that Rodes was taken away and that they held of the Pope And if they were dissolved by the Statute of 31 H. 8. then what need a Statute the next year after viz 32 H. 8. to dissolve the Corporation By the Statute of 26 H. 8. cap. 3. the King hath the first Fruits and Tenths of all that shall be promoted to any Benefice or promotion spiritual This doth not extend to St John of Jerusalem and therefore afterwards in the same Statute it is Enacted That every one which shall be elected or by other means appointed to the Dignity of the Prior of St Johns of Jerusalem shall before their real and actual entrie into the Dignity or medling with the profits satisfie the King c. Now if they were intended in the words Spiritual promotion it was in vain a new to enact for them The Act of 32. H. 8. extends to Ireland and so doth not the Statute of 31 H. 8. the Statute of 31 H. 8. extends only to Eccelesiastical and Religious so they were not intended within the Statute of 31 H. 8. Next If they were intended within the Statute of 31 H. â then the Statute of 32 H. 8. gives them absolutely by name to the King The Statute of 31 H. 8. gives nothing to the King but those that are or were to be given up forfeited surrendred or otherwise given up but gives nothing to the King but by the help of some other Act viz. forfeiture surrender or otherwise given up The word Otherwise never intended Dissolution by Act of Parliament for that is paramount the particulars recited The Statute of Malebridg cap. 30. n. Provisum est quod si depredationes vel rapini aliqui fiânt Abbatibus c. vel aliis Prelatis Ecclesiasticis c. That Statute never intended to extend to Bishops who are paramount and superior to Abbots The word aliis will bear no such sense to make the superior to be intended when as the inferior is recited The Statute of 13 Eliz. recites That no Colledg Dean and Chapter Parsons Vicars c. may make a new Lease unless within a year of the end of the Lease in being Now a Bishop is superior and above these particularly named and may make concurrant Leases so here the word Otherwise doth not intend that Otherwise to be by Act of Parliament and to extend to greater then the particulars recited The Statute of 32 H. 8. sayes that the Corporation shall be dissolved and void but the Statute of 31 H. 8. doth not say that the Corporation shall be dissolved and void The Statute of 32 H. 8. sayes that the Corporation and possessions shall be in the King by vertue of that Act then not in the King
39 H. 6. 9. is ruled in the point there the Attachment is in his own hands there the other pleaded there was no debt It is there ruled that the debt is not traversable for if there be no debt then he shall have restitution in London upon the pledges It was objected That he is to swear his debt to be a true debt I answer It ought to be so intended and then if he lay a Custom to swear the Debt and we say we have sworn our Debt then we have pursued the Custom 3. It was objected that it is not shewed where the goods were whether within the jurisdiction of the City 4 E. 4. 36. there the place came not in question But in our Case we lay That the Custom is that the goods must be in London Old Entries 155 156. there it is not alleadged that the goods were within the City of London at the time of the Attachment If a Precept be awarded to the Officer who retorns that he hath not any thing within the City and upon the allegation of the Plaintiff that such a one hath goods of the Defendant in his hands was the Objection I answer If we have not proceeded well yet the Process is well enough for here is a Judgment against him in London then so long as the Judgment is in force against him he cannot have the goods 21 E. 4 23. b. It is a Rule That a stranger unto a plaint shall not be received to alleadge discontinuance in the process So the Sheriff shall not excuse himself upon an Escape that there was Error in the Judgment nor a privy shall not take advantage of it Ognels Case Trim. 31 Eliz. there lies no process of Capias by the Law upon a Recognisance but Extent or Levari facias Yet there a Capias was awarded and if the party taken escape the Sheriff shall not take advantage of the Erronious process So I desire Judgment for the Defendant And he took an Exception to the Declaration In Detinue if the Declaration be general it is good sc Licet sepius requisitu c. But here he shews that he delivered the Cloak to be redelivered upon Request and he doth not shew any particular Request but sayes generally Licet sepius requisitus Ward There is a difference betwixt Detinue and Action upon the Case For in an Action upon the Case he ought to shew a particular Request 26 H. 6. If I bail goods to redeliver upon request yet I may seise them without request Dodderidge Justice The reseisure of the goods is a Request in Law a Request with a witness a Request with effect and untill Request he hath just cause to keep them Jones Justice In Debt and Detinue the very bringing of the Action and demand of the Writ is a demand and request And if he appear at the first Summons then he excuses himself otherwise he shall be subject to damages but the Request ought not to be so precisely alleadged But if a collateral thing be to be done upon Request there to say sepius requisitus is not sufficient So if I sell a horse for 10â to be paid upon Request there the Request must be precisely laid for it is parcel of the Contract And in Action upon the Case and upon Debt you must lay a Request Dodderidge Justice The Request is no part of the Debt for the Debt is presently due but if I make the Request to be part of the Contract there it is otherwise As if I deliver goods to redeliver to me there needeth no precise Request but if it be to redeliver upon Request there the Request ought to be alleadged for there the Request is part of the Contract The Case was adjourned till the next Term. Pasch 3 Caroli in the Kings Bench. 484. MOLE and CARTER'S Case IN an Action upon the Case upon an Assumpsit it was moved in arrest of Judgment That the Plaintiff declares that he was possessed of certain Goods viz. such c. at London And that in consideration of two shillings That the Defendant at London did promise to carrie the said Goods aboard such a Ship if the Plaintiff would deliver the Goods to him And he shewed that he did deliver the Goods to him and that he had not carried them aboard He shewed that he was possessed of the Goods but did not shew when or where he delivered the said Goods to the Defendant but said only deliberavit c. And then the Law saith that they were not delivered Jones Justice The same is but matter of Inducement to the promise and ought not to be shewed so precisely Pasch 3 Caroli in the Kings Bench. 485. FRYER and DEW'S Case DEW being sued prayed his Priviledg because he is a Commoner in Exeter Colledg in Oxford and brought Letters under the Seal of the Chancellor of Oxford certifying their Priviledg and he certifies that Dew is a Commoner as appeareth by the Certificate of Doctor Prideaux Rector of the said Colledg Whereas he ought to certifie that he is a Commoner upon his own knowledg and not upon the Certificate of another But afterwards Certificate was made of his own knowledg and then it was allowed as good The Declaration came in Hill 2 Caroli The Certificate bore date in the Vacation and he prayed his Priviledg this Easter Term. After Imparlance he comes too late to pray his Priviledg The Certificate is not that at the time of the Action brought he was a Commoner in Exeter Colledg but that now he is a Commoner And the Certificate bears date after the Action brought He ought to have said that at the time of the Action brought and now he is a Commoner in Exeter Colledg The Priviledg was allowed per Curiam Trin. 21 Jacobi in the Kings Bench. 486. TANFIELD and HIRON'S Case THe Plaintiff brought an Action upon the Case against the Defendant for delivering of a scandalous Writing to the Prince and in his Declaration he set forth what place he held in the Commonwealth and that the Defendant seeking to extenuate and draw the love and favour of the King Prince and Subjects from him did complain that the Plaintiff did much oppress the Inhabitants of Michel Tue in the County of Oxford and that he did cause Meerstones to be digged up which might be a cause of great contention amongst the Inhabitants of Tue. The Plaintiffe denyed the oppression alledged against him and the Defendant did justifie and said that I. S. being seised of the Mannor of Tue did demise certain Lands parcel thereof unto I. F. for eighty years who made a Lease of the same at Will and afterwards I. S. did Enfeoff Tanfield the Plaintiff of the said Mannor to whom the Tenants did attorn Tenants And the Defendant shewed That time out of mind the Inhabitants of the Town of Tue had Common in the Waste of the said Mannor and that a great part of the said Mannor was inclosed and the Meerstones removed
lease had not any beginning and therefore was void and so the three limitations End Surrender or Forfeiture cannot happen Dyer 197 198. From the death of the Father the lease which is made to the Son shall begin the Father being dead it is a void lease to the Son C. 6 part 35. Enumeration of particular times if it do not happen within the particular then it shall never begin And so it is of this lease to Walsingham in our Case Note it was said by Sir Henry Yelvertor That it was the opinion of the Judges in this Case That he had but the custody of the Park and not the interest of the Park for by the acceptance of the custody of a Park when he hath a lease of the Park it selfe before it is a surrender of his lease Davenport argued for the Defendant More The question which is made of the lease of 27. Eliz. rests upon the lease made to Genny 33. H. 8. which was determined upon the surrender of the lessee 2. It rests upon the lease made to Pawlet 36. H. 8. which was for fifty years determinable by two Provisoes the one for not payment of a sum in gross 3. It rests upon the lease made to Pawlet 5 6. Ph. M. for 50 years from Mich last past upon the death of Pawlet or committing of Waste The lease of 27. Eliz. is a lease in reversion for 31 years to begin after the surrender forfeiture or expiration of the lease made 4 5 Ph. M. to Pawlet Exception is taken to the lease 36. H 8. because it hath two falsities the first Because it mis-recites the lease of 33 H. 8. reciting the same to be dated 32 H. 8. whereas in truth it was dated 33 H. 8. and that varies the term of years and that lease is not good at the common law nor as they objected is it helped by the Statute of 34. H. 8. of Mis-recitalls Secondly Because it is upon a false suggesstion of the Patentee and therefore it is void It was also obejected That the lease of 5 6 Philip and Mary was void for two causes first Because that that recites the lease of 36. H. 8. to bee for fifty years without the Proviso of determination by the death of Pawlet 2. The King is deceived in his Grant for they objected That it was recited to be surrendred ãâã intentione to regrant eadem praemissa and there are other things granted which were not surrendred They say That the Lease is said to be of the Parkership and not of the Park for that doth not passe by the generall words cum pertinentiis for by expresse words the Parkership is granted and then not the Park it selfe The Lease of 33. H. 8. was truly surrendred But the King reciting that the Patent bearing date 32. H. 8. was surrendred in consideration of service did grant the office of Parkership c. And insuper the Manor for fifty years c. The question is If this misrecitall be helped by the Common Law if it be not then if the Statute of 34. H. 8. doth help it The Lease which was mis-recited was not in esse and there is a difference when the Lease which is recited is not in esse but determined and when former Leasus are recited as Leases in esse There are three things in which misrecitall is materiall and doth vitiate the Patent 1. Misrecitall of the Tenant to whom the Lease was made or of the Tenant which was last possessed 2. Misrecitall of the thing demised 3. Of the Estate in esse and the Limitation If in such case of misrecitall there be not a Non obstante then the Patent is void at the Common Law C. 4. part 35. The King by the Law ought to be truely informed of estates in esse and also of his Rents and Revenue But by the Common Law if the former Leases be recited to be determined and in truth they are and the new grant is upon another consideration then it is not materiall if they be misrecited for that it is not any part of the consideration Vide 38. H. 6. 37. Darby If the misrecitall be in any thing not materiall which need not to be recited and no part of the consideration of the new Lease then it shall not make void the Patent for that the misrecitall was not of any thing materiall If the misrecitall be of a thing determined and the second Patent depend thereupon then the second Patent is void for if the King recite a Lease made to I. S. which is determined and demise tenementa praedict ' sic ut praefertur and in truth the Lease recited was made to I. D. the second Lease is void 38. H. 8. Br. Patents 10l The King Tenant in taile makes a Lease for life the successour King may make a new Lease without recitall and if he do misrecite the lease which is determined it is not materiall If our Lease should be void at the Common Law yet it is helped by the Statute of 34. H. 8. cap. 21. by expresse words the same extends to all Leases with or without consideration notwithstanding misrecitall or non-recitall yet all misrecitals are not helped by that Statute if the misrecitall be of Leases which are not the guide of the second Patent and need not to be recited such misrecitall is helped by the Statute But if the former Patent begetteth the later then the Statute doth not extend unto it for then the last is void for that the King is deceived and not by reason of the misrecitall Dyer 194. 195. The Case there is direct to prove our Case for there the recitall was of the grant of an Office 33. H. 8. whereas it was dated 32. H. 8. Et quia omnia c. And there was not any surrender for in truth it was not surrendred to the Master of the Rolls who died before it was entred There it is resolved That it is not helped by the Statute of Queen Mary for in that Act there is an expresse clause that it extend not to the grant of an Office as in the Case of Dier it was and then it was left at the Common Law and the Queen was deceived because the surrender was not good The defect of the second Patent was That it was not in the Crown by the surrender but if it had been well surrendred the misrecitall had been helped by the Statute of 34. H. 8. for it was the misrecitall of the year that the Patent bore date â 2. part Doddingtons Case Dyer 129. upon the Statute of 34. H. 8. The misrecitall of the Town is not helped for it doth not appear unto the Court what Land was intended to be granted But if the thing had been certainly and particularly named so as it might appear to the Court what Land was intended to passe then the mis-recitall of the Town had been helped by the Statute of 34. H. 8. A thing granted generally
with reference to a misrecited Patent is not helped by the Act of 34. H. 8. But when the thing granted is particularized with reference to a thing which is determined in a misrecited Patent then the Statute of 34. H. 8. will help it but in our Case the misrecitall is of a thing which needed not to be recited The second Objection which hath been made is That the King is deceived by reason of the false suggestion And then the Letters Patents made by reason thereof are void I answer That if the false Suggestion tendeth to the detriment of the Crowne and to the apparant prejudice of the King then the Letters Patents may bee avoided But where the Suggestion is of a thing not materiall and doth not tend either to the deceit of the Crowne or to the Kings prejudice neither in his profit nor his Inheritance there it shall not make void the Letters Patents Dyer 352. Where an Abbot Lessee for sixty years of the Queen made a Lease for eighty yeares the sixty years expired the Lessee for eighty years surrendred to the Crown and in consideration of that Surrender to have a new Lease there the second Patent was void for the King was deceived in the reall consideration And Dyer there said That it was but the Suggestion of the party and the Collection of the Queen C. 5. part 93. 94. Where Lessee for yeares of the King did assigne part of his Terme and Land to another and then surrendred the surrender there was the consideration and that was not good If the recital be made of a thing which needeth not to be recited and the Patent is made upon another consideration there the misrecital shall not hurt it C. 1. part 41. where Henry the seventh reciting cum pâst c. virtute cujâs c. the estate is recited as determined the Reversion shall passe for the King was certified of the estate And in our Case it is determined Where the falsitie of the suggestion is not in deceit nor to the prejudice of the King If the thing misrecited be not materiall it shall not make void the Patent C. 10 part 110. Legates Case Quae quidem c. the false suggestion shall make void the Patent for the King did not intend to abate his Revenue Fitz. Nat. Brev. Grants 58. Falsitie of Tenure of the King shall make void the Kings Licence For the falsitie of suggestion which came from the party did tend to the prejudice of the King in his Tenure C. 10. part 110 Quod quidem manibus c. ratione Escheatae c. It shall make void the grant by this suggestion of the party which doth prejudice the King in his title But where the Suggestion is not to the prejudice of the King in his revenue tenure nor title it shall not make the Letters Patents void C. 10. part 113. MARKHAM's case The King grants the office of Parker quod quidem Officium the Earle of RUTLAN'D late had And the said Earl never had it the Suggestion was of a thing not materiall to the second Patentee nor to the Kings prejudice therefore it was good 10. H. 6. 2. Quod quidem Manerium seisitus fuit in manus nostras the false suggestion there shall not make void the Patent because it was not of a thing materiall If the King grant a Manor quod quidem Manerium nuper fuit in tenura I. S. and in truth it was not in the Tenure of I. S. yet it was adjudged good For Nuper is a Recitall of the thing that was and not of a thing that is For if it had not been in the possession of I. S. whereas in truth he was not seised or possessed thereof there it had not been good It is found in our Case That the Lease is actually surrendred and so the misrecitall is of a thing that was scil nuper and not of a thing that is or in esse The next Exception is to the Letters Patents of Philip and Mary First because thereby the Lease of 36. H. 8. is not fully recited For there was a Proviso That if he did not pay a summe in grosse that it should be void And that it should determine by the Death of Pawlet the Patentee The misrecitall of that Collaterall matter by the Common Law shall not make void the Grant There are three things necessary in Recitalls First The Certainty of the particular estate in esse with the Limitations Secondly The Tenant to whome the particular estate was made or the Tenant which then is in possession Thirdly The thing granted by the same name as it is granted in the first Patent But Covenants Reservations Provisions Conditions and the like need not to be recited The Recitall ought to be of a thing in esse Avowry 112. A Towne was granted by the King And afterwards he granted unto another a Leet in the same Towne the King in this case needed not to recite the grant of the said Towne Secondly The Recitall ought to bee in the same name as it was granted in the first Patent And cannot be helped by averment if it be misrecited Thirdly the Tenant of the Land or the Tenant which was before the grant ought to be recited scil that such a man habuit to whom the first Patent was granted Or that he now hath the Lands or lately had the thing granted in possession Brook Pat. 96. Such things ought to be recited as ought to be pleaded against the King in an Information of Instruction In our Case the misrecitall being of a thing determined and not materiall and not to be the guide of the second Patent doth not make void the Grant to Pawlet It was objected That Queen MARY was deceived for the Grant was de âisdem praemissis And in the former Patent the Park was excepted but so it was not in the Letters Patents to Pawlet In the first Patent reasonable Herbage was granted but in the second to Pawlet the Grant was of Herbage generally If the King except the Deer as hee doth in this case then hee ought to have sufficient herbage for his Deer The Jury finde That the Letters Patents of 36. H. 8. were absolutely surrendred eâ intentione that the King might make a new Lease in forma sâquente which is not de praemissis sed de praementionatis Now the King for two hundred pounds Fine is pleased to grant tam in consideration of the Surrender quà m for the Fine of two hundred pounds And here the King took knowledg that it ought to be in forma sequente and then by reason of the Fine and Surrender hee is pleased to vary from the former Patent and it is to the prejudice of the Patentee The first was reasonable Herbage and here it is Herbage and in the Kings Case it amounts to as much as if hee had said Reasonable Herbage for because the King excepts the Deer it is implyed That the Patentee is but to have
releaseth A Will is made and A. is made Executor and no trust is declared in the Will and at his death the Testator declares That his Will is for the benefit of his children May not this intent be averred there is nothing more common Dodderidg Justice For the making of an Estate you cannot averre otherwise then the Will is but as to the disposition of the estate you may averre Jones Justice There are two Executors one commits wast or releaseth c. the other hath no remedy at the common Law for that breach of Trust The reason of Chenyes case C. 5. part is Whosoever will devise Lands ought to do it by writing and if it be without the writing it is out of the Will although his intent appeareth to be otherwise Before the Statute of 34. H. 8. cap. 26. The Marches of Wales held plea of all things for things were not then setled But the said Statute gave them power and authority to hear and determine such causes and matters as are or afterwards shall be assigned to them by the King as heretofore had been used and accustomed Now if it be assigned by the King yet if it be not a thing accustomed and used to be pleaded there it is not there pleadable So if it be within the Instructions made by the King yet if it be not used and accustomed it is not pleadable there but it ought to be within the Instructions and also accustomed and usuall Adultery Symony and Incontinency are within their Instructions and are accustomed The things being accustomed to be pleaded there have the strength of an Act of Parliament but by the Instructions they have no power to proceed in case of Legacy Then let us see if the same be included within the generall words things of Equity within the Instructions And then I will be tender in delivering of my opinion If a Legacy be pleadable there or not Whitlock Justice The Clergy desired that they might forbear to intermeddle with Legacies Five Bishops one after the other were Presidents of the Marshes there and they draw into the Marches spirituall businesse but originally it was not so their power was larger then now it is for they had power in criminall causes but now they are restrained in that power There is a common Law Ecclesiasticall as well as of our common Law Jus Commune Ecclesiasticum as well as Jus Commune Laâcum The whole Court was of opinion That the Kings Atturney in the Marches being out we ought to have priviledge there In the Chancery there is a Latine Court for the Officers of the Court and the Clarks of the Court for to sue in But in the principal Case a Prohibition was not granted because there was much matter of Equity concerning the Legacy It was adjourned Pasch 3. Caroli in the Kings Bench. 497 HARLEY and REYNOLD's Case HArvey brought an Action of Debt upon an Escape against Reynolds Hill 1. Car. Reynolds pleaded That before the day of Escape scil the twentieth day of January 1. Car. That the Prisoner brake Prison and escaped and that he afterwards viz. before the bringing of this Action viz. 8. die Maii 2. Car. took the Prisoner again upon fresh Suit Anderws for the Plaintiff Reynolds is bound to the last day viz. 8. Maii and not the day before the bringing of the Action for the Bill bears date Hill 1. Car. and the terme is but one day in Law c. 4 part 71. and so no certain day is set for the Jury to find The day which Reynolds sets that he retook the Prisoner is the eighth day of May and he shall be bound by that Com. 24. a. 33. H. 6. 44. Where a day is uncertain a day ought to be set down for a day is material for to draw things in issue C. 4. part 70. the Plaintiff shewed That 7. Maii 30. Eliz. by Deed indented and inrolled in the Common Pleas Ter. Pasc in the said thirtieth year within six monthes according to the Statute for the consideration of One hundred Pounds did bargain and sell But he further said That after the said seventh day of May in the said thirtieth year he levied a Fine of the Lands to the now Plaintiff after which Fine viz. 29. Aprilis in the said thirtieth year the said Deed indented was enrolled in the Common Pleas. Note That another day more certain was expressed therefore the mistaking of the day shall not hurt And there it was helped by Averment 8. H. 6. 10. Repleader 7. In Waste the Defendant said That such a day before the Writ brought the Plaintiff entred upon him before which entry no Waste was done c. Strange It might be that he entred again wherefore the Court awarded that he should recover Co. Entries 178. In Dower the Tenant vouched a stranger in another County who appeared and there the Replication is viz. die Lunae c. so the day ought to be certain 19. H. 6. 15. In a Formedon If the Defendant plead a thing which by the Law he is not compelled to do and the Plaintiffe reply That she is a Feme sole and not Covert it is good but if he plead That such a day year and place there the Trial shall be at the particular place otherwise the Trial shall be at the place where the Writ bears date C. 4 part Palmers Case If the Sheriff sell a Term upon an Extent and puts a Date to it scil recites the Date and mistakes it the sale is not good for there is no such Lease Dyer 111. Then it is said 31. Octobris and there by the computation of time it was impossible and so here the time is impossible scil that 8. Maii 2. Car. should be before Hill 1. Caroli for the taking is after the Action brought and so naught to bar the Plaintiff it is the substanre of his bar upon which he relieth and so no matter of form 20. H. 6. there upon an Escape the Defendant said That such a day ante impetrationem billae in this Court scil such a day he retook him and the day after the scilicet is after the purchase of the Writ there the scilicet and the day expressed shall be void and it shall be taken according to the first day expressed if the Sheriff had retaken him before the filing of the Writ it had been a good plea in Bar otherwise not Calthrope contrary H. brought debt Hill 16. Jacobi against Cropley and 9. Junii 19. Jacobi Cropley was taken in Execution and delivered in Execution to R. by Habeas Corpus afterwards 1. Caroli Cropley escaped and H. brought debt against R. who pleaded a special Plea and shewed That 20. Januarii 1. Caroli Cropley brake prison and escaped and that he made fresh Suit untill he took him and that before the purchase of the Bill scil 8 Maii 2. Caroli he was retaken 16. E. 4. If he retake him before the Action brought it is a good bar so if the
to Thomas Spence and his Wife and the Survivor the Rent of seventeen Pounds yearly and every year during the terme Proviso that if the Rent be arrere by forty daies that Thomas and his Wife or the Survivor of them should enter Thomas Spence died his Administrator did demand the Rent and being denied entred for the Condition broken Calthrope argued That the reservation to the Wife was void because she had not any interest in the Land and also never sealed the Indenture of Assignment but was as a stranger to the Deed and so he said that the Wife could not enter for the condition broken nor make any demand of the Rent The 2l l Point was Admitting that the wife could not enter nor demand the Rent Whether the Administrator of the Husband might demand it and enter for the condition broken because the words are Yeilding and paying to Thomas Spence and Jane his Wife and the Survivor of them during the term and no words of Executors or Assigns are in the Case and he conceived the Administrator could not and so he said it had been resolved in one Butcher and Richmonds Case about 6. Jacobi Banks contrary and he said It was a good Rent and well demanded and the reservation is good during the Term to the Husband and Wife and although the word Reddendo doth not create a rent to the Wife because the Husband cannot give to the Wife yet the Solvendo shall gain a good rent to the Wife during the life of the Wife and the reservation shall be a good reservation to him and his Administrators during the Survivor Vide C. 5. part Goodales Case 38. E. 3. 33. 46. E. 3. 18. and admitting that the rent shall be paid to the Wife yet the condition shall go to the Administrator 2. The word Solvendo makes the Rent good to the Wife and amounts to an agreement of the Lessee to pay the Rent to them and the Survivor of them and that which cannot be good by way of reservation yet is good by way of grant and agreement and many times words of reservation or preception shall enure by way of grant Vide 10 E. 3 500. 10. Ass 40. 8. H. 4. 19. Richard Colingbrooks Case 41. E. 3. 15. 13. E. 2 Feasts and Fasts 108. Richardson Justice The Reservation being during the term is good and shall go to the Administrator Jones Justice contrary It is good only during the life of the Lessor and so was it adjudged in Edwyn and Wottons Case 5. Jacobi Crook Justice accorded The Administrator hath no title and the Wife is no party to the Deed and therefore the Rent is gone by the death of the Husband If it had been durante termino generally perhaps it had been good but durante termino praedicto to him and his Wife it ceaseth by his death And the words durante termino couple it to him and his Wife and the Survivor and it cannot be good to the Wife who is no party nor sealed the Deed neither can it inure to the Wife by way of Grant And the words Reddendo and Solvendo are Synonima and the Administrator is no Assignee of the Survivor for she cannot assign because she hath no right in the Rent Barkley Justice The intention of the parties was That it should be a continuing Rent and Judges are to make such Exposition of Deeds as that the meaning of the parties may take effect I do agree That the Wife could not have the Rent neither by way of Reservation nor by way of Grant if she were not a party to the Indenture but here she is a party to the Deed for it is by Deed indented made by the husband and wife and the husband hath set his Seal to it And 2. The Solvendo doth work by way of Grant by the intent of the parties The Reddendo shall go and relate as to the husband and the Solvendo to the wife and he agreed the Case 33. H. 8. Br. Cases because there expressum facit cessare tacitum but in case of a Lease for years the words Reserving Rent to him shall go to the Executor who represents the person of the Testator and 27. El. it was adjudged in Constables Case and Littleton agrees with it That the Executor shall be possessed and is possessed in the right of his Testator And therefore if an alien be made an Executor in an Action brought by him the Tryal shall not be per medââtatem lânguae And this Case is the stronger because the Reservation is during the Term. And C. 3. part in Malleries Case That the Law shall make such a construction Upon reservation of Rent upon a Lease as may stand with the intent and meaning of the parties and therefore in that where an Abbot and Covent made a Lease for years rendring Rent yearly during the Term to the Abbot and Covent or to his Successors it is all one as if it had been to him and his Successors and although the words be joint or in the Copulative yet by construction of Law the Rent shall be well reserved during the terme for if the reservation had been only Annually during the terme it had been sufficient and his Successors should have had the Rent Quaere the principall Case for the Judges differed much in their opinions Hill 8. Caroli in the Kings Bench. 517 The KING against HILL AN Information was by the Kings Atturney against Hill and others upon the Statute of 32. H. 8. of Maintenance Where the Point was A man was out of Possession and recovered in an Ejectione firme in May 2. Car. and Habere Possessionem was awarded and 29. Sept. 4. Car. he sold the Land And whether he might sell presently or not was the Question And it was determined That he being put in possession by a Writ of Habere facias possessionem that he might sell presently Vide Com. Crookers Case and C. Littl. acc and so was it holden in Sir John Offley's Case 7. Car. in this Court Barkley Justice If a Disseisor doth recover in an Ejectione firme if he afterwards sell the Land it is a pretended Title Jones Justice It was adjudged 36. El. in the Common Pleas in Pages Case in the Case of a Formedon That if a man be out of Possession for seven years and afterwards he recover that he may sell the Lands presently Crook Justice There is a difference where the recovery is in a reall Action and where it is in an Ejectione firme It was Master Browneloes Case in the Star-Chamber resolved by all the Judges of England That a Suit in Chancery cannot make a Title pretended nor Maintenance Barkley Justice put this Case If Husband and Wife bargaineth and selleth whereas the Wife hath nothing in the Land and afterwards a Fine is levied of the same Lands by the Husband and Wife it shall have a relation to conclude the Wife and to make the Wife to have a Title ab initio It was
171 365 368 369 forfeiture 269 142 365 felling trees 173 174 trespasse brought 174 Corporation 347 dissolved the donor shall have his land again 211 sues 393 Costs 329 345 220 Covenant 38 assignee 162 Executors ibid. 11 12 48 69 70 to build a mill c. there 271 273 175 99 120 333 335 217 to surrender 445 performed 95 The Indenture is void in part 213 Covenant 87 121 cause of things must appear in the Court 401 Countermand 133 County where actions shall be brought 335 of trials 429 Courts-Baron 68 69 Leet 71 Tower Court 145 of Requests 208 216 243 244 Kings Bench and Chancery 357 Acts done in spiritual Courts 33 163 164 181 215 Curia claudenda 127 Custom 5 49 234 140 143 235 267 261 135 of descents 166 127 That the wife may devise to the husband 14 Particular Customes 163 D Day in Court 68 Day materiall to be set down 433 434 Damages recowping in them 53 135 362 jonyt severed 57 assessed 98 343 344 not assessed writ of enquiry 207 not recoverable in account 57 treble 245 to be severed 210 Damage feasan 124 185 Date of a Patent 416 Declaration 251 86 186 in an action upon 1 2. P. M. of distresses 11 upon an Assumpsit 32 Custome 252 particularly 358 insufficient 76 106 343 370 mistakes 345 287 119 160 125 Deed things passe by one deed 129 by deed 354 128 Debt 253 91 336 372 217 210 who liable 294 The Kings debt 289 290 291 292 293 294 295 296 Default 280 Defamation 440 Delivery of deeds 130 of money to anothers use 210 Demand 23 39 67 96 154 337 where to be 331 by writ 74 335 310 the word 398 Demurrer 10 Denizen made 417 Departure 255 122 Depositions 193 Deprivation 259 163 Detaining 8 Detinue 370 Declaration in it 403 Devastation by Executors 30 Devastavit 285 Devise 7 14 15 16 26 40 46 208 266 280 95 99 130 131 299 319 146 351 352 363 to a Colledge c. 394 prevents a remitter c. 411 to a mans heir 412 to one daughter heir of land held by Knights service c. 17 to sell 78 to the Son and heir 94 Dilapidation 259 Diminution 267 alledged 407 Disability the plaintiff cause of it 75 76 Discharge 11 105 ought to shew what 61 Discent 3â5 312 365 Disclam 25 Discontinuance one issue only found 5 370 within a year 219 Discontinuance by tenant in taile 317 Disseisin 522 of a particular estate 139 Acts of disseisor disseisor sues c. 388 Distresse justified 109 110 187 190 driven out of the Countrey 11 sufficient upon the Land 67 110 Divorce 19 145 Dove-coat a Writ of Right lies of it 259 erected 284 Dower 21 135 145 A Lease is for years 266 Forfeitable by the Husband 323 Averment of seisin of the husband for damage 212 E Ejectione firmae 6 15 18 53 71 72 33â extra tenet unnecessary 60. lyes 157 Plea 149 Election 258 159 127 140 446 To sue 196 determined ibid. Elegit 257 82 84 Ely jurisdiction there 380 381 Emblements 159 Enclosure in Forrests 167 168 169 170 171 Entry into one house 72 To defeat an estate 9 To fortifie it 25 for forfeiture 175 No trespasse 283 Error 26 258 248 73 80 84 87 372 373 lyes not 261 247. brought 376 377 378 379 439. directed 44. things uncertaine 408. severall 440 Escape 22 27 262 280 125 126 372 403 Fresh suite 177 433 Escheat 78 For Miscreancy 34 Right of action 322 Essoine 235 236 Estates 19 42 51 52 272 A Lease for time 102 103 determined 9 the lesse drowned 52 voidable 9 Estoppel 257 48 147 321 177 384 385 Estranger to a plaint erroneous c. 403 Estovers custome pleaded 235. see 238 97 173 Estrepment 112 164 Estrey 150 151 Eviction 258 Evidence maintaines not the issue 235 see 326 Execution 26 257 258 80 82 83 84 290 295 147 125 126 181 371 372 373 217 Assignment after judgement 161 Taking 372. severall 208 Executors 21 192 See Right Of his own wrong 104 Reteines 217 Order in payment 298 Pleads fully administred 178 Exception in a grant 116 117 118 Time past to take it 100 One releases 431 Exâhange 99 100 Exigent 83 217 Excommunication 191. unjust 406 Exposition 16 17 18 36 37 67 71 236 246 198 of Lawes 39 of Statutes 309. and Patents 425 Extent 82 289 311 Extinguishment 24 11 101 314 128 137 211 Lands given by Statute to the King Annuity not extinguished 170 F Falsâfying a Recâvery 271 Falsely imprisoned 124 Fee executed ââ2 one cannot depend of another ââ7 Fee-simple 155 Felony not before attainder 267 Cause of arrest for it 406 Feoffments 318 319 320 Fieri facias 276 147 83 Fine for vert c. 277. What Courts may fine c. 381 Fine levied by tenor of it 246 Parish not named 440 Record of it 103 129 307 148 351 179 First fruits 393 Forceable entry 45 Forfeiture of Lessor 105 141. Of a Right 321 See Treason Forgery 62 63 175 Form commanded by Statute must be observed 334 188 189 Formedon 239 302 163 Forrests chases c. 169 Frankalmoigne 396 Franchises 17 262 Usurped 91 Frankmarriage 18 19 20 Franktenement rule of it 9 In an upper chamber 44 Forfeiture 6 318 In case of Treason 34 307 308 310 315 316 Fraudulent conveyances and acts 6 7 285 161 191 192 G. GArdian in soccage 316 Gardens 6 Gavel-kind Plea 55 Grants Words apt 7 Of a common person 8 18 24 25 236 237 270 273 Restriction rule 237 To dig in his waste 18 Generall words 183 One thing passes with another 352 Things passe in grosse 127. By one Deed 129. Of the King 8 35 Where a mistake shall not abridge the fulnesse of words precedent 36 Favoured 37 38 262 136 425. See 414 415 416 417 421 422 423 425 Of a possibility 316 H. HAbeas corpus directed 44. See 198 199 Habendum 51 269 272 Habendum successive 220 Holidayes 218 Heire-speciall 3. Force of the word ib. 4 275 102 312 Homage 320 Husband and Wife acts of both or either 2 5 14 15 312 141 180 Wifes lease good 327 Gives land to her husband 143 Execution of the Wives Lease 26 See Reservation Husband may forfeit the Wives Copy-hold 345 May correct his Wife 215 I. IDeot 302 Jeofailes 56 57 194 Imbracery 240 Imprisonment 158 344 199. See Fine Improvement of common 97 Incidents 359 Ingrossers of corn 144 Innkeepers 345 346 Incroachment 24 411 Inquisitions 294 299 Indictment 45 46 65 67 272 84 157 400 346 For erecting a Cottage 383 For omitting the Crosse in Baptisme 119 Joynt 349 Contra pacem when 59 Infant 60 104 In his mothers belly 319 364 365 366. May grant c. 14 Brings Error to reverse a Fine 20 May release 30 31 Acknowledges a Statute c. 149 Appears c. 382 Promises to pay for his meat c. 219. Sues his Guardian discharges 214 Information 91 131 158
adjourned Pasch 10. Caroli in the Kings Bench. 518 BARKER and TAYLOR's Case IN an Ejectione firme the Case upon the Evidence was this Two Coparceners Copy-holders in Possession the one did surrender his reversion in the moity after his death Charles Jones moved That nothing did passe because he had nothing in Reversion Vide C. 5. part Saffyns Case If a man surrendreth a Reversion the Possession shall not passe 2. It is not good after his death so was it adjudged in C. 2. part Buckler and Harvey's Case Curia The Surrender is void and the same is all one as well in the Case of Copy-hold as of Free-hold and so was it adjudged 26. El. in Plats Case and so also was it adjudged in this Court 3. Caroli in Simpsons Case Pasch 13. Caroli in the Kings Bench. 519 HUMFREYS and STUDFIELD's Case IN an Action upon the Case for words the Plaintiff did declare That he was Heir apparant to his Father and also to his younger Brother who had purchased Lands but had no Issue either Male or Female and that the Defendant with an intent to bring him in disgrace with his Father and also with his younger brother and thereby to make the Father and younger Brother to give away their lands from the Plaintiff did maliciously speak these words to the Plaintiff Thou art a Bastard which words were spoken in the presence of the Father and younger Brother by reason of speaking which words the Father and younger Brother did intend and afterwards did give their Lands from the Plaintiff And by the opinion of the whole Court it was adjudged That the words were Actionable and Judgement entred accordingly FINIS I have perused this Collection of Reports and think them fit to be printed Per me JOHANNEM GODBOLT Unum Justiciar ' de Banco 18. Jun. 1648. An Alphabetical TABLE A ABatement of Writs 9 34 64 By Death 66 68 For Surplusage 380 Abeyance 313 314 319 443 Accâptance 47 39 384 385 425 When a man is bound to accept c. 39 Accessary 65 Accusation before a Justice 444 Acts which purge the wrong before 384 Act subsequent where lawfull 28 29 First Act 337 Action 337 Another Action hanging 258 In what County 42 See County there where it bears date 388 Possessory 34 Before Seisin c. Special 186 Accord see Arbitrament Account 30 43 56 90 291 155 122 123 210 As Baiây ad Merchandizandum 58 Against Executors 291 292 Acquittal 19 Acquittance 104 Addition de Parochia 203 Administrator is found to be an Executor 26 Surety in debt is Administrator c. 149 Administrator counts of his own Possession before he be possessed 34 see 40 Retains for his own debt 217 Administration 33 34 2 Durante minori c. 30 Sues to Execution the Executor comes of age 104 Admiralty upon a stipulation or bill there the body of the stipulators who are for the most part Masters of ships and Merchants transeuntes may be taken no execution can be upon lands It s jurisdiction 260 261 Admiralty Court its jurisdiction things partly done on land 386 387 388 389 390 Advâwson 17 38 128 129 passes in Grants 425 Equity in Statutes 308 Agreement disagreement 180 After an arâest 360 After Assumpsit 361 Alien 275 Amendment 57 286 103 Amercement 49 135 Distress for it without Presentment 190 Annuity 4 144 Ancient Demesn pleaded 64 320 Appeal 275 Appendant Appurtenant 40 352 353 Apportionment of rent 95 118 139 Apprentices bound by Covenants though Infants 122 Appropriation 1â4 Approvement of common 116 Arbitrement 13 241 25 276 165 185 in part good 256 Arreers 12 Array triers of it 429 430 Arrests 125 358 lawful 360 Assault and battery 251 Assent of parties 429 430 Assets 29 30 31 averred 176 Assignment 18 of Debts 81 c. Assignee 3 16 70 271 277 120 162 Assize 4 for erecting houses 189 Assurance as counsel shall advise 435 bound to assure 445 446 Assumpsit 13 31 274 72 73 94 159 the arrest is void 360 337 338 350 138 144 358 to the servant 361 Attachment of Debts by custome 297 196 401 402 403 404 Attainder 267 275 303 325 376 Attaint 271 378 279 Atturnment 19 25 320 142 Atturney for livery 39 Atturney must not do acts unlawful 387 what he may do 389 Receipt by him 217 Audita querela 257 104 155 377 Averment of uses 269 214 in a devise 131 432 that Cestuy que vie is alive 195 Avowry 24 302 320 upon whom 368 Authority must be persued 39 84 195 389 naked 307 to recover a debt without more 358 359 Ayde 318 B BAil 148 339 Debt against them 354 Bailment of Goods 160 403 Bankrupts one Commissioner hath right to the land 319 division where but one bond 195 196 Bargain and sale 270 156 Bar Pleas in Bar 253 434 Insufficient 138 two bars 397 Barretor 384 Bastard 275 281 Battery a base fellow strikes a man of dignity 207 Benches 246 247 Bill Suits by bill 389 Bill for oppression or extortion 438 By-Lawes 50 Bishops their Acts 342 Borough English 3 C CApias 39 257 83 372 373 Case Action of c. 13 40 54 55 58 64 240 241 73 285 98 155 160 381 412 liâs 329 330 338 344 346 137 176 200 362 426 against an Inn-keeper 42 See Slander Vi armis c. 426 Trover c. 267 274 Challenge 234 110 193 428 429 to the Sheriff and Coronets 357 Chancery 262 Chaplains 41 Charge 3 Charters 370 Things in point of Charter 93 Church-Wardens 279 Cessavit 84 Certainty incertainty 14 93 336 220 once in a deed 198 Certiorari Certificate 14 356 404 Citation out of the Diocess 190 Claim 333 389 of the Lessee 105 Clark of a Parish 163 Colledges are Corporations 394 Collusion Covin 78 298 Colour 159 Commission Commissioners 105 193 High Commissioners 58 Common 4 21 96 97 185 168 169 170 171 Surcharged 182 Digging in the Common c 343 344 making Coney Boroughs 327 Where woods are inclosed 267 What the Commoner may do upon the ground 123 12â Conclusion by the word praetextu 344 Condition assignee 162 c. 3 9 29 38 39 75 99 101 against Law 250 void 293 Lessee assignes Rent 336 broken acceptance by rent after 47 performance 299 that neither A. B. or C. shall disturb c. 60 61 not to implead A. 72 to assure lands as Councel shall advise 338 339 360 Confession 80 to save harmlesse c. 134 Confirmation 25 Consideration 13 31 32 94 134 159 437 against Law 251 to forbear a debt 303 306 See assumpsit 428 Conspiracy 76 206 447 Consultation 446 447 Contract 31 98 176 intire 154 Continuance to some intents 309 in Courts 195 Contribution for one surety against another 243 Conviction before it lands not to be begged 206 nor seised there 365 366 Copy-hold 2 11 47 233 268 129 130 140 Admittance 269 143 extinguished 101 Statutes extend to it 15 369 tailed 20 21 367 Fines 265 Leases