where the Suit is Tam pro Domina Regina quam pro seipso CXXII Trin. 32 Eliz. In the Exchequer Debt IF Rent-corn be reserved upon a Lease for years and it is behind for two or three years the Lessor may have Debt for the Corn and shall declare of so much Corn and it shall be in the Detinet but yet he shall not have Iudgment to have Corn but so much mony as the Corn was worth every several year being accompted Clark Baron doubted if he shall recover the price of the Corn as it was at the time when it was payable or it was at the time of the Action brought Manwood The Law is clear that the Lessee shall pay according to the price it was at the time of the payment and delivery limited by the Lease Clark said A is bound to pay and deliver to the Obligee 10 Bushels of Wheat and no place is appointed where the payment shall be made the Obligor is not bound to seek the Obligee in what place soever as it is in Case of payment of mony for that the importableness therefore shall excuse him which Manwood granted CXXIII Trin. 27 Eliz. In the Exchequer NOte It was holden by the Barons Fine for Alienation without Licence that for Fines for Alienation without licence not only the Land aliened but the other Lands of the Alienor shall be chargeable Mich. 30 Eliz. In the Exchequer CXXIV Prowses Case IT was holden in the Case of one Prowse by Egerton Solicitor Tythes upon the Statute of 31 H. 8. where an Abbot had a Rectory impropriate and also Land within the same Parish c. and so paid no Tythes because he could not pay them to himself and for no other cause was discharged and after the Dissolution the Rectory is granted to one and the Land to another that in such Case the King nor his Patentees should not be discharged of Tythes for the Lands were not discharged in Right but if the Lands in the hands of the Abbot were discharged in Right as by composition or lawful means there the King and his Patentee should be discharged from payment of Tythes And it was said by Burliegh Lord Treasurer that if the Composition or Custom was that the Abbot and his Successors should be discharged without extending to Farmors or Lessees if the Abbot made a Lease and the Lessee paid Tythes as he ought and after the Reversion cometh to the King the Lessee should pay Tythes during his Lease but after the Lease determined the King and his Patentee should not pay but should be discharged by the said Statute and said the like matter was in the Chancery Trin. 30 Eliz. The Abbot of Tewkesbury having the Rectory impropriate of Tewkesbury 11 H. 7. purchased Lands within the said Parish to him and his Successors Unity no discharge of Tythes after the dissolution the King granted to G. the Rectory and to W. the Lands and if W. should pay Tythes was referred to Manwood and Periam who gave their Resolution that Tythes were payable Trin. 30 Eliz. In the Kings Bench. CXXV Ropers Case ROper was robbed by Smith and within a week after the Robbery he preferred an Indictment against him and within a month after the Robbery he sued an Appeal against Smith and prosecuted it until he was out-lawed and thereupon Cook moved to have Restitution and they of the Crown Office said that the Fresh-suit was not enquired for upon an Appeal one shall not have Restitution without Fresh-suit Restitution Cook The Books are if the Defendant in the Appeal of Robbery be attainted by Verdict Fresh Suit. the Fresh-suit shall be enquired of But here he was attainted by Outlary and not by Verdict and so the Fresh-suit could not be enquired of and here the Indictment is within a week and the Appeal within a month after the Robbery is a Fresh-suit Wray Chief Iustice In our Law he is to pursue the Felon from Town to Town but the suing of the Appeal is no Fresh-suit vide 21 F. 4.16 Restitution grounded upon Outlawry and Appeal of Robbery without Fresh-suit enquired of 1 H. 4. 5. if he confess the Felony and so is 2 R. 3. 13. Trin. 30 Eliz. In the Kings Bench. CXXVI Piers and Leversuches Case IN Ejectione firmae by Piers against Leversuch It was found by Verdict that one Robert Leversuch Grandfather of the Defendant was Tenant in Tail of the Land whereof c. and made Lease for years to Purn who assigned it over to Piers the Plaintiffs Father Robert Leversuch died W. his Son entred upon Piers who re-entred W. demised the Lands without other words to P. for life the remainder to Joan his wife for life the remainder to the Son of P. for life with warranty and made a Letter of Attorney to re-enter and deliver seisin accordingly P. died before that the Livery was executed and afterwards the Attorney made Livery to Joan W. died Edward his Son and Heir entred upon his Wife she re-entred and let the Land to the Plaintiff who upon an Ouster brought the Action Heal Serjeant When P. entred upon W. Leversuch the Issue in Tail he was a Disseisor and by his death the Land descending to his Heir the entry was taken away of W. Leversuch Cook contrary P. by his entry was not a Disseisor but at the Election of W. for when P. accepted such a Deed of W. it appeared that his intent was not to enter as a Disseisor and it is not found that the said P. had any Son and Heir at the time of his death and if not then no descent and there is not any disseisin found that P. expulit Leversuch out of the Land and Iudgment was given against the Plaintiff And Cook cited a Case which was adjudged in the Common Pleas it was Skipwiths Case Grandfather Tenant in Tail Father and Son the Grandfather died the Father entred and paid the rent to the Lessor and died in possession and it was adjudged the same was not any descent for the paying of the rent explained by what title he entred and so shall not be a Disseisor but at the Election of another Trin. 33 Eliz. In the Kings Bench. CXXVII Penhalls Case PEnhall was indicted upon the Statute of 5 E. 6. for drawing his Dagger in the Church against J. S. without saying that he drew it with intent to strike the Party and for that cause the Indictment was holden void as to the Statute It was moved if it should not bee a good Indictment for the Assault so as he should be fined for the same By Sands Clerk of the Crown and the whole Court the Indictment is void in all for the conclusion of the Indictment is contra formam Statuti and then the Iury cannot enquire at the Common Law. Trin. 33 Eliz. In the Kings Bench. CXXVIII Weshbourns Case WEshbourn and Brown were Indicted upon the Statute of 8 H. 6. and exception was
that the Son for a Fine of three years paid should have the Land for his life Hutton said That the Traverse was good for if there was not any such Custom that the Son should have it so for life then ex consequente sequitur that there is not any such Custom that the Son should have it after the death of the Wife or her Surrender and therefore he needed not to Traverse the last Custom alledged But the whole Court was against him and ruled That the Traverse was not good for he ought to have traversed the last Custom because there are several Customs and the one is immediately to him the other not and the Defendant claimed by the Second Custom and therefore the Court awarded That he should amend his Plea. Pasc 12 Jac. In the Common Pleas. CCCCVII Sir Henry Rolls and Osborns Case Hob. Rep. 20. More Rep. 859 2 Brownl 169. SIr Henry Rolls brought a Writ of Warrantia Chartae against Sir Robert Osborn and Katharine his Wife and shewed That the Defendant ought to warrant him a Messuage 40 Acres of Land 700 Acres of Pasture in Kelmarsh and shewed That Sir Robert Osborn and his Wife levied a Fine to him and his Heirs of a Manor and of the Lands aforesaid with warranty to him and his Heirs and further shewed That a Writ of Entre sur disseisin was brought against him of the said Messuage 40 Acres of Land 700 Acres of Pasture and that he had demanded the Warranty of the Defendant or that he would minister to him a Plea which the Defendant hath refused to do to his damage of 1000 l. the Defendant confessed the Fine and Warranty as aforesaid but further pleaded That in the same Term that the Fine was levied a Writ of Entry was brought against Sir Henry Rolls in which Writ he vouched to Warranty the said Defendant who alone entred into the Warranty and vouched over the common Vouchee and so a Recovery was had accordingly And averred That the said Recovery was to the use of Sir Henry Rolls for his life and if there was a Marriage between him and A. S. within 4 years then to the use of the said A. S. for her Ioynture with divers remainders over and averred the life of Sir H. Rolls Vpon which the Plaintiff did demur in Law. Shirley Serjeant argued for the Plaintiff That the Warranty was not destroyed but that the Plaintiff might well mantain his Warrantia Chartae and for the same he vouched 22 H. 6.22 Cliffords Case That there ought to be an alteration of the Estate to which the Warranty is annexed and here is no alteration of the Estate for although the Recovery was had the said Term and a Voucher upon it yet because the uses did not take effect presently but were contingent uses he remained Tenant in Fee-simple as he was before and so the first Warranty remained and was not destroyed Mountague Serjeant contrary and that the Warrantia Chartae was gone and that for four Causes 1. He who comes to an Estate in the Post shall not have a Warrantia Chartae but Sir Hen. Rolls cometh to the Estate in the Post ergo he shall not have Warrantia Chartae And for that vide 29 Ass 34. Lord by Escheat shall not have Warrantia Chartae 22 Ass 57. The Lord of a Villain shall not have a Warrantia Chartae 21 H. 6. Disseisor shall not have Warrantia Chartae and so 19 H 6.25 10 H. 7.10 Tenant by the Courtesie shall not have the Writ because all these come to the Lands in the Post But see Cook 3. part Lincoln Colledge Case they may have peradventure benefit of a Rent or of a Condition but not of a Warranty 27 E. 3. garr ' Statham acc ' 2. Every Warranty ought to have the same Estate continuing to which the Warranty is annexed but Sir Hen. Rolls had not the same Estate continuing ergo he shall not have the Warranty because the Fine was to him and his Heirs with Warranty but this Recovery which was but a further assurance was but to the use of himself for life with divers Remainders over so as the first Estate is altered And 42 E. 3.2 40 E. 3. 14. it is a good Plea in a Warrantia Chartae that the Demandant is not Tenant And 41 Eliz. in Bointon Chesters Case it was adjudged in this Court That if a man makes a Feoffment with Warranty who enfeoffs the first Feoffor upon Condition that that Warranty remains he shall vouch by reason of the first Warranty but if upon that Feoffment he had limited any new use there because the Estate was altered the Voucher was gone Vide F. N. B. 135. 19 E. 3. T. Voucher 12.2 48 E. 3. 18. acc ' And it was Resolved 34 Eliz in Banco Regis in Kempe Henninghams Case That in such Case he should not have several Warrantia Charta's And therefore because in the principal Case he hath once vouched upon this Recovery and upon that the Estate is altered he cannot now have Warrantia Chartae 3. Every Warranty is a Covenant real which consists in privity and therefore destroy the privity and the warranty is gone But now in this Case the first privity is destroyed therefore the warranty is gone And therefore 11 H. 4. 8. if two Ioyntenants be with warranty and one of them maketh a Feoffment in Fee the warranty is destroyed because the first privity is destroyed 21 H. 6. 51. acc ' But Vide 19 E. 3. Statham Garr ' 31. If two Ioyntenants are with warranty and the one Releases to the Feoffor there the warranty remains because the privity remains Vide 2 H. 6. 7. Cook 1 Part Chudleighs Case 125. acc ' And see M. 31 Eliz. in this Court King and Watts Case Land is given to Husband and Wife and to the Heirs of the Body of the Husband and Wife the Husband levies a Fine and dyes without Issue the Wife is impleaded and adjudged that she could not have Aid nor Warrantia Chartae because the Estate was bound by the Fine the Husband being Tenant in special Tail. 4. No warranty can have but one recompence and if there be recompence given the warranty is gone and extinct But here is a recompence made by the Voucher in this Recovery therefore the warranty is extinct 34 Ass pl. 15. 23 E. 3. garr ' 77. acc ' and 15 E. 4. 13. 12 E. 4. 12. If he will not take advantage of the warranty when he may he shall never have it after Vide F. N. B. 134. acc ' And 36 Eliz. it was adjudged in Owens Case That if Tenant in Tail bargains and sells his Lands and suffers a Recovery and afterwards Inrolls the Deed that that Recovery is a good bar to the Estate tail because there is a supposition of recompence and so he prayed Iudgment for the Defendants It was adjourned Vide this Case now Resolved in the Lord Hoberts Reports
the overthrow of an Estate as the Statute which gives That if a Woman consent to a Ravisher that the next Heir shall enter if the Daughter entreth and afterward a Son is born he shall not put out the Daughter because the Statute shall not be drawn to a private intent to the overthrow of an Estate vested before lawfully in the Daughter Therefore neither in our Case the Act shall not be drawn to a private sense for the benefit of the Countess to overthrow the Lease for years and it is not like to the Case which hath been put If he make a Lease for twenty years and for other twenty years the same is not good by the Act which Case I agree for that is a Lease for forty years Egerton Solicitor contrary 1. As to the word Demise from dismission the same is nothing else but a letting of the Land. Lo Lease is from Laiser a French word and such a Demise at a day to come is an Interest of a Lease and not a Lease it self for he hath not let the Land As if I say I let you my Land for 21 years When shall you have my Land Shall you have my Land at a day to come or presently If I fell you Land and Covenant that it is discharged of all other Incumbrances than Leases for 21 years and there is a Lease to begin afterwards for 21 years I have broken my Covenant If I am bound to make you a Lease for 21 years and I say to you I make a Lease to you to begin 200 years after I have forfeited my Obligation If the custom of a Manor be that Dominus pro tempore may make Leases for 21 years may he make a Lease to begin 20 years after Truly not if there be not a Special Custom to make it good If I give authority to my Steward to make Leases of my Lands for 21 years he cannot make a Lease to begin at 100 years hereafter As to the Case of the Duchy there the Condition is that he shall make Leases according to his discretion therefore there he may make such Leases as he pleaseth As to the Statute of Richard 2. which enables Cestuy que use it is not like to our Act or Statute for that is that Feoffments Estates c. therefore he may make such Leases without doubt If I devise that my Executor shall make Leases of my Lands for 21 years he cannot make a Lease for to commence 100 years after and if they do not make them within convenient time the Heir shall avoid their Authority So the Statute Law hath such Exposition that the precise time ought to be observed as the Statute of 14 E. 3. Cap. 18. 1. Receit to Voucher 8. If the Tenant vouch to warranty a dead man and the Demandant will aver that the Vouchee is dead or that there is none such there the Averment shall be received without more delay Vpon that Statute the Case in 21 E. 3. where one vouched to warranty and a Summoneas ad Warrantizandum issued and then came the Demandant and would have averred that the Vouchee is dead the Tenant said he ought to aver the same upon the Voucher to warranty and that now he had surceased his time to take advantage of the time and the Demandant said That the Statute did not bind him to that nor prescribed any time but left the same generally yet by the Court it was awarded that he should have the Averment the time of the Voucher or not at all So the Statute of 11 H. 7. cap 20. If a woman who hath a Ioynture for life or in Tail and suffers a Common Recovery according to the Statute of 11 H. 7. cap. 20. and afterwards the Issue in Tail releaseth all his right by Fine and dieth his Issue may enter for the assent ought to be by Voucher in the same Action and the like for if there be a mean instance between the Recovery and the Assent then any Assent after is nothing to the purpose for the Recovery being once void by the Statute it cannot be made good by assent afterwards Vide Dr. Student 54. and yet the Statute saith Provided that the Act shall not extend to any such Recovery Discontinuance c. if the next heir be assenting to the same Recovery c. so as the same Assent or Agreement is of Record or enrolled and doth not say If the Assent ought to be at one time or at another But to come to Leases upon Statutes Before the Statute of 2 E. 6. cap. 8. if Leases were not found by Offices they should be ousted and put to their Traverse But put case that after that Statute a Lease to begin at a day to come is not found by Office shall it be aided by that Statute No truly and so it is holden in the Court of Wards at this day And the Lord Chief Iustice of England so held in his Reading at Lincolns Inn The Statute of 1 Eliz. of Leases to be made by Bishops is that Leases other then for 21 years from the time that they begin that is when they take effect as a Deed and when they take effect not to be executed for so they might make infinite Leases Quaere the further part of Egertons Argument in this Case And vide in Cooks 1 part of his Reports where this Case is reported to be adjudged that the Lease made in Reversion by the Earl was a void Lease Mich. 29 Eliz. In the Common Pleas. DEbt brought upon an Escape in L. the Defendant said That he suffered him to escape in C. by the commandment of the Plaintiff without that that he escaped in L. It was holden to be no Plea. But in an Action upon a false imprisonment in L. he may justifie That he was Sheriff of C. and took him by force of a Writ without that that he imprisoned him in L. Rodes Iustice One brings an Action upon an Escape in L. and in truth he never was in L. after the Escape in an Action he shall recover Periam and Rhodes Where the matter of Iustification is tied to a place there the place is traversable And Rhodes said There was a Case adjudged in an Action by Davage against the Mayor of Lynn where the Defendant justified as a special Iustice within the Town and traversed the place alledged by the Plaintiff Mich. 29 30 Eliz. In the Kings Bench. CLXI Scot and Scots Case Common Recovery 2 Leon. 128. 3 Leon. 225. 1 Cro. 73. GEorge Scot the Elder sued a Replevin against George Scot the Younger The Case was this One Georgo Scot 20 H. 8. being Tenant in Tail of certain Lands suffered a Recovery to the use of his last Will and 25 H. 8 by his Will declared That he willed that the Recoverers make a good and favourable Lease to Hugh Scot his younger Brother and 25 H. 8. they make a Lease to Hugh Scot for ninety nine years reserving
on the other side That the Estate of the Alien is so weak that a confirmation cannot enure upon it for an Alien cannot take but to the use of the King and cannot be infeoffed to anothers use and if he be such use is void For there is not a sufficient seisin in an Alien to carry an use And it hath been adjudged on Forset Case Where an Alien and the said Forset were Ioynt-Purchasers and the Alien dyed that Forset should not have the whole by Survivour but that upon Office found the Queen should have the moiety Vide 11 Eliz. Dyer 283. Mich. 30 Eliz. In the Common Pleas. CLXXVI Jermine and Arscots Case THe Case between Jermine and Arscot was this A seized of Lands in Fee had Issue six Sons and one Daughter and devised the Manor of c. parcel of his said Lands to J. S. for ninety years if the said J. S. and G. his Wife or any of them should so long live the remainder to P. his eldest Son and the Heirs males of his Body the remainder to his other Sons in tail the remainder to his Daughter Provided That if the said P. his Son or any of the Sons of the Devisor or any of the heirs males of their bodies should endeavour by any Act or Thing to alien bargain or discontinue c. that then after such attempt or endeavour and before such Bargain and Sale c. were executed that the estate of such Person attempting should cease as if he were naturally dead and that then the premises should remain and come to such person to whom the same ought to come remain or be by the intent and meaning of his Will and died P. levied a Fine of the Manor he in the next remainder entred and claimed the Land by force of the Devise This Case was this Term argued by Walmesly Serjeant that an Estate tail cannot cease for it is an Estate of Inheritance and here is not any limitation for the Estate tail by the meaning of the Devisor shall remain revivable upon the death of the Offender but a Limitation determines the Estate utterly which is not here but here it appeareth as well by the meaning of the Devisor as by the words of the Devise that the Estate tail upon such act should be suspended and it cannot be resembled to the Case cited on the other side 22 E. 3. A Rent granted to one in Fee and that it shall cease during the Nonage of every Heir the Rent is but suspended between the Parties and Privies to the Gift as in the Case of Littleton of Re-entry and Retainer quousque but that a Stranger should re-enter and retain quousque that cannot be And in the Case of Scholastica reported by Plowden the Estate tail by such Offence is determined by the limitation But in our Case by the meaning of the Devisor only suspended so our Case is not like to that Case Shuttleworth to the contrary The purpose of the Devisor appeareth to be the continuance of the Land in the name and Family of the Caries and as to the difference of ceasing and suspending of an Estate tail the same is not to the purpose for the Tenant in tail himself may suspend his Estate tail therefore à fortiori the Donor upon the Creation of the Estate tail As by Littleton Tenant in Tail grants totum statum suum the Estate tail is thereby suspended and by Anderson if in such a Case after such a grant Tenant in tail levy a Fine in our Case If Tenant in tail offend and the party to whom the next interest is limited enters and after the Offender levies a Fine to a Stranger there although his Estate was determined by the offence yet the Estate tail is bound by the Fine Ad quod caeteri Justiciarii murmurabant Tenant in tail hath Issue two Sons the eldest in the life of his Father levieth a Fine and after the Father dieth the Estate tail is bound contrary if the Father had survived his eldest Son And afterwards in the end of this Term Iudgment was given against the Plaintiff for by the Will here is a good limitation and an estate to cease upon an act and upon another contingent to be revived is good enough Vide 30 E. 3. 7. A Lease for life rendring rent and if the rent he behind that the Lessor shall return quousque agreement be made so as a Freehold may cease and rise again according as the same is limited And all this was agreed by Rhodes Periam and Windham and afterwards Walmsley for the Plaintiff took an Exception to the Bar for that the Defendant pleaded Quod Petrus Cary tempore levationis finis praedict non habet exitum and doth not say that tempore quo ipse Henricus clamabat reversionem praedict the said Peter had not Issue for he said if Peter had Issue when Henry claimed the Reversion nothing had vested on him by the said claim But all the Court besides Anderson said that needed not be but if the matter had been such the same should come on the part of the Plaintiff Also they said That the Estate was vested in Henry without claim and although after the Offence committed and before claim Peter have Issue yet Henry should retain the Land during the life of the Offender against such Issue born after the Fine levied for by the Fine levied the Reversion vested in Henry without any claim by force of the said limitation CLXXVII Mich. 30 Eliz. In the Common Pleas. Alien suffers a common Recovery 9 Co. 141. LAnd was given to an Alien in tail the Remainder over to another in Fee the Alien suffered a common Recovery and died without Issue All this matter was found by Office. It was moved That this Office should have return so as upon the matter the Alien was not Tenant of the Land at the time of the Recovery suffered But the whole Court held the contrary and that the Recovery was good and should bind him in the Remainder Mich. 30 Eliz. In the Common Pleas. CLXXVIII Seixtbark and Percies Case EJectione firmae of Lands in Knolton and Woodland the Parties were at Issue and the Venire facias was of Knolton only and it was found for the Plaintiff It was shewed in stay of Iudgment that the Venire facias was not well awarded for it ought to have been De vicineto de Knolton Woodland which was granted by the Court And that that defect was not relieved by any Statute for it is a Mis-trial and for that cause Iudgment was stayed and a Venire facias de novo granted 30 Eliz. In the Common Pleas. CLXXIX The Provost of Queens Colledge in Oxfords Case THe Provost Fellows and Scholars of Queens Colledge in Oxford are Guardians of the Hospital and Meason de Dieu in Southampton and they make a Lease of Lands parcel of the Possession of the said Hospital to one Hagel for term of years by the name of
of the body of the Husband and he said a Scire facias did lye upon the Fine well enough for the Fine is not void but only erroneous and being in its force this Writ doth well lye And he cited to this purpose 7 E. 3. Fitz. Sc. fac 136. where upon such a Fine levied and such Exception ut supra taken to it To which it was said by Herle that forasmuch as the Fine is excepted and yet in its force we ought to grant Execution and also 30 H. 6. none can take the first Estate in the Fine but he who is named in the Writ of Covenant but every Stranger may take by way of Remainder and such was the Opinion of the whole Court As to the matter in Law all the Court agreed That notwithstanding the Recovery the Demandant should have Execution for here the Land which by pretence of the said Recovery shall be Recoverd in value cannot go to the Estate which is given for the Estate given was to the Husband and Wife and the Heirs of the body of the Husband and then the Tenant against whom the Recovery was had was impleaded as sole Tenant in which Case the Vouchee when he comes in is to warrant a sole Estate but not another but now the Land to be recovered in value shall go to the Husband alone and the Wife shall have nothing so as the true Estate is not warranted and so not answered And he cited the Case of 38 E. 3. 5. in a Formedon the Tenant vouched himself for to save the tail and shewed that one A. was seized and gave the Land in Demand to the now Tenant and to E. his Wife in tail which E. is now alive and by award the Voucher was disallowed Because it was there said by Knevyt the Recovery in value cannot be according to the gift 45 E. 3. 18. Tenant in tail discontinues and takes back an Estate in Fee is impleaded and voucheth the Donor he shall be ousted of the Voucher for that he is in of another Estate and afterwards the Plaintiff had Iudgment to have Execution Mich. 33 Eliz. In the Common Pleas. CXCIII Foles and Griffins Case DEbt upon Obligation by Foles against Griffin the Condition was That if the Obligee may enjoy certain Tythes demised to him by the Defendant during his Term against all Persons paying yearly the Rent of three pound that then c. To which the Defendant said that the Plaintiff did not pay the said Rent c. Beaumont Serjeant moved that the Plea is not good but he ought to say that the Plaintiff enjoyed the Tythes until such a Feast at which time such Rent was due which Rent he did not pay for which c. Quod Curia concessit Mich. 33 Eliz. In the Kings Bench. CXCIV Young and Taylors Case IN Debt upon an Obligation upon Condition to perform the Arbitrament the Obligation was laid to be made in the Parish of Bow in London and the submission was of all things depending between them so that they made an Award of the premisses before such a day and said further that no Arbitrament was made The Plaintiff Replicando said that the Arbitrators made an Award in the Parish of Pancras in Warda praedict and layed a breach c. The Defendant rejoyned that 300 l. was depending in Controversie between them for a certain thing of which no Arbitrament was made upon which they were at Issue and tryed by a Visne of the Parish of Bow only which passed for the Plaintiff It was moved in stay of Iudgment That the Trial was not good for no place is alledged where the Controversie of 300 l. is depending for which cause it shall be tried where the Bond and Arbitrament was made to which it was said That the alledging the place where the Arbitrament was made is superfluous for which Cause the Trial is good And also the Submission being conditional the Award ought to be of all things submitted or else it is void contrary if it be no Condition Vide Cook 8 Part Baspoles Case Mich. 32 Eliz. In the Common Pleas. CXCV. The Queen and the Bishop of Lincolns Case THe Queen brought a Quare Impedit against the Bishop of Lincoln and others And the Case was That F. Bishop of Lincoln Predecessor of the Defendant was Patron of the Church and presented to the same being void one Garth who being inducted took another Benefice by which by reason of the Statute of 21 H. 8. the first Benefice became void and remained void by the space of seventeen years whereupon the Queen was entituled to present to the same by Lapse The said F. then Bishop presented to the same and afterwards was translated to Winchester and the Defendant now Bishop was suffectus And he certified into the Exchequer that the Incumbent presented by the said F refused to pay his Subsidy upon which he was deprived and if now the Queen shall present by reason of her Title by Lapse notwithstanding the plenarty after or if the Title by Lapse of that Presentment of the Bishop was c. was a great Question And the Case late adjudged between Beverly and Cornwel was cited but there the Case was that the Clark presented where the Presentment appertained to the Queen by Lapse died but here he is deprived which may be the Covin betwixt the Ordinary and him Fenner argued to the contrary and put divers Cases to prove that the Prerogative of the Queen did not alter the right of the Parties As the Queen hath a Seignory consisting of Homage Fealty and Rent and the Queen grants the Seignory to a Stranger reserving the Rent and afterwards the Tenancy Escheats the Rent is gone The Queen leases for years rendring rent to a Stranger upon Condition who enters upon the Lessee the Condition of the Queen is suspended The Queen purchaseth Lands in Borough English hath Issue a Son and dyeth seized he hath the Land now by descent afterwards a younger Son is born that Land shall be divested out of the possession of the King and the Royalty of his person doth not alter the right of descent And afterwards forasmuch as the same deprivation is the act of the Incumbent the refusal the act of the Ordinary himself the sentence and not the act of God in the case before cited It was the Opinion of the Court That Iudgment should be given for the Queen CXCVI. Windham and Meads Case WIndham brought an Action upon the Case upon the Common Law of England concerning Hostlers The Case was That the Servant of Windham brought his Masters horse to the Inn and there it was stollen To which the Defendant said That the said Servant brought the said Horse to the said Inn to be put to Pasture and thereupon the said Horse was put to grass and was there stollen it was ruled in that Case that the Inn-keeper should be excused but if the Inn-keeper of his own head without direction of the Owner
or his Servant had put the Horse to grass and afterward the Horse is stollen there an Action upon the Case doth lye Trin. 29 Eliz. In the Common Pleas. CXCVII Neals Case IN a false Imprisonment by Neal against the Mayor Sheriffs Citizens and Commonalty of the City of Norwich the Original Writ was directed to the Coroners of the said City And Exception was taken to the Writ because it was not directed to the Sheriffs of the said City but to the Coroners Sed non allocatur for the Sheriffs are parcel of the Corporation as it is to see by the name by which they of Norwich are incorporated And also it hath been adjudged That a Sheriff cannot summon himself and therefore by the Award of the Court the Writ was allowed to be good Trin. 29 Eliz. In the Common Pleas. CXCVIII. Sir John Bromes Case SIr John Brome 33 H. 8. acknowledged a Fine of certain Lands the Kings Silver was entred and the Conusans taken but the Fine was never engrossed and now he who claimed under the Fine came in Court and prayed that the Fine might be engrossed and the Court examined them upon their Oaths to what use the Fine was levied and in the Seisin and Possession of what persons the Lands whereof the Fine was levied had been after the Fine Vpon which Examination it appeared fully to the Court that the Party to whom the Fine was levied was seized after the Fine and suffered a Common Recovery of the Land and that the said Land had been enjoyed according to the said Fine at all such times since c. Whereupon the Court commanded that the Fine be ingrossed Vide Acc. 8 Eliz. Dyer 254. Trin. 29 Eliz. In the Exchequer CXCIX The Lord Dacres and Philip Fines Case THe Case between the Lord Dacres and Fines was Tenant in Tail in remainder upon an Estate for Life of Lands holden in Capite levied a Fine thereof without Licence 3 Leon. 261. and Process issued against the Tenants for Life It was holden by all the Barons that by Plea he should be discharged it was holden That if the Conusor had any other Lands ubicunque in Anglia the Fine for Alienation should be levied upon them But it was moved If the Tenant should be driven to plead it because it appears upon Record that the Conusor was but Tenant in Tail in Remainder and that was in an Office containing such matter which was pleaded by another in another Cause before by which Office it appeared that the Lord Dacres was Tenant in Tail the Remainder in Tail to Philip Fines and now Fines had levied a Fine sur Conusans de droit c. and because the same appeared on Record Manwood awarded that the Process against the Tenants of the Lord Dacres should be stayed Trin. 29 Eliz. CC. Paston and Townsends Case IN Trespass by Paston against Townsend The Defendant pleaded that Tindal was seized in Fee by protestation and dyed seized and the Land descended To which the Plaintiff replyed and said c absque hoc that Tindal was seized in Fee upon which they were at Issue On the part of the Defendant to prove the Issue it was given in Evidence to prove the Issue in his right that the said Tindal long time before his death was seized and aliened and never after was seized It was said that that Evidence did not prove the Issue for the Defendant for the Seisin in Fee intended in the Issue is in the nature of a dying seized and so Periam conceived that the Defendants Plea did not intend any other Seisin a dying seized and the dying seized is taken by Protestation to avoid the doubleness So as the Seisin upon which the Issue is taken ought to be intended a Seisin continuing until the time of the death of Tindal and Seisin at large or a general Seisin at any time during the life of Tindal quod Anderson concessit Trin. 29 Eliz. In the Kings Bench. CCI. Griffith and Prices Case ERror by Griffith against Price upon a Iudgment in Chester in Ejectione firmae and the Error assigned was because the Original bore date 16 April 28 Eliz. and the Plaintiff declared of an Ejectment 17 April 28 Eliz. So as it appeareth that the Action was brought before there was any cause of Action and that was holden to be Error And also Ejectione firmae is not a personal Action and afterwards the Iudgment was Reversed Trin. 30 Eliz. In the Kings Bench. CCII. Harris and Caverleys Case A Iudgment was given in London between Harris and Caverley upon the Statute of 5 E. 6. for buying of Woolls and upon that Error was brought in the Kings Bench quod nota For this Writ of Error upon a Iudgment given in London ought to be sued before the Maior Vide â— N. B. 22 23. And Wray asked Wherefore the Writ of Error was brought here To which it was answered by Dodding Clark that the Record was removed by Certiorari out of the Kings Bench at the Suit of the Defendant to the purpose to bring a Writ of Error quod coram vobis residet And the Error was assigned in this that by the Statute of 18 Eliz. cap. 5. it is enacted that upon every Information that shall be exhibited a special Note shall be made of the Day Month and Year of the exhibiting of the same into any Office or to any Officer who lawfully may receive the same And here upon this Information there is not any such Note according to the said Statute And in truth no Information may be exhibited for there is not any Officer there appointed for that matter for the entry in such Cases in that Court is Talis venit deliberavit hic in Curia Miloni Sands c. But in the Case at Bar the Entry is Talis venit deliberavit in Curia but without shewing to whom But note that the words of the said Statute of 18 Eliz. are in the disjunctive into any Office or to any Officer and that such Information shall not be of Record but from that time forwards and not before wherefore here this Information is not upon Record and then no Iudgment can be given upon it Cook This Information may be well sued in London for the words of the said Statute of 5 E. 6. give Suit in any Court of Record of the King And the Court in London is a Court of Record of the King and every Court of Record hath an Officer to receive Declarations and Pleas and if it be delivered into the Office it is good enough 2. The Offence is laid in the Parish of Bow in Warda de Cheap alibi in Civitate London and so there is not any place laid where the Offence shall be tryed Cook This Alibi is a Nugation Trin. 31 Eliz. In the Kings Bench. CCIII Peuson and Higbeds Case IN Assumpsit the Plaintiff declared that in consideration that he by his Servant had delivered to the Defendant two Bills
Aid prayer the Party to have Aid shewed such Special matter But in our Case the Tenant for life hath vouched his Bargainor and not without cause for he hath a warranty from him and the Demandant cannot Counterplead it for he had a Seisin whereof he might make a Feoffment As to the Case 14 E. 3. Fitz. Resceit 135. Lessee for life in a Praecipe against him without Aid prayer pleadeth to the Enquest the first day he in reversion may enter It is true he may enter and enter into the Resceit but not into the Land for a Forfeiture For then Fitzherbert would have abridged that Case in the Title of Entre Congeable and not in the Title of Resceit And the Book in 5 Ass 3. is good Law for there the Tenant doth confess the reversion to be in another but in our Case the Tenant voucheth which is a lawful Act and according to the Covenants of his Purchase And although the recovery was by agreement yet it is not for that a Forfeiture for if the Tenant for life voucheth truly it is not a Forfeiture Before the Statute of West 2. cap. 3. which gave resceit to a woman and to those in reversion where the particular Tenant is impleaded and made default reddere noluerit no remedy for these Cases but a Writ of Right but no Entry and that was for the credit which the Law gave to recoveries car si puissoit then is resceit given but that only in the two Cases aforesaid But afterward because it was found that many particular Tenants being impleaded would plead faintly The Statute of 13 R. 2. gave resceit in such case And upon what reasons were these Acts made if in such cases the Entry was lawful But after these two Statutes another practise was devised for such particular Tenants would suffer recoveries secretly in such sort that those in the reversion could not have notice of it so as they could not ante judicium and prayer to be received for the remedy of which mischief the Statute of 32 H. 8. was made by which all recoveries had against the Tenant by the Curtesie or otherwise for life or lives by agreement of the Parties of any Land whereof such particular Tenant is seized should be void as Tenant by the Curtesie c. should be void against him in the reversion And yet an Evasion was found out of that Statute for such particular Tenant would make a Feoffment with warranty and then the Feoffor should be impleaded in a Writ of Entry and he vouch the Tenant for life who should vouch over and such a Recovery was out of the Statute of 32 H. 8. for the recovery was not against such particular Tenant c. For the remedy of which mischief the Statute of 14 Eliz. was made by which it was provided that such recoveries had where such particular Tenant shall be vouched should ve void if such recovery be had between them by Covin And he conceived That the Forfeiture is not in respect of the recovery it self but of the Plea pleaded by the Tenant And here in our Case there is not any Covin found or that Sir William Pelham knew that he was but Tenant for life but it was found that the recovery was with their assent and that was lawful as this Case is for they may agree to have such recovery for further assurance and so Sir William Pelham hath not vouched any but his Bargainor and that according to their Covenants and this Bargainor was not a bare Tenant for life but had also a remainder in tail although not immediately depending upon the Estate for life which he cut off therefore it was not meerly a feigned recovery And Vide 5 E. 4.2 Br. Forfeiture 87. where Tenant for life being impleaded in a Praecipe voucheth a stranger it is not a Forfeiture for it doth not disaffirm the reversion c. contra of Aid prayer for a stranger may release with warranty to Tenant for life upon which he may vouch And he reported in his Argument That Bromley Chancellor of England sent him to the two chief Iustices to know their Opinions upon these Points and they were of opinion That the Voucher of a stranger was not any Forfeiture and also that after the recovery was executed he in the remainder could not enter but they conceived that the right of him in the remainder was not bound And he said That after the recovery executed he in the remainder could not enter which see Br. Forfeiture 87. 24 H. 8. For if Entry in such Case had been lawful infiniteness of Suits would follow which would be a thing against the credit of recoveries As to the Objection of the Infancy the same will not help the matter 6 H. 8. Br. Saver default 30. Recovery had against an Infant in which he voucheth and loseth is not erronious contrary upon default And if an Infant Tenant in tail suffereth a recovery it is discontinuance for in such Recovery Infancy is not respected And in a Scire Facias upon a Iudgment had against the Father the Heir shall not have his age And he cited a Case out of Bendlowes Reports 5 Eliz. Tenant for life the remainder over to a stranger in Fee Tenant for life is disseized by Covin in a Praecipe quod reddat against the Disseisor he voucheth the Tenant for life who entreth into the Warranty generally and voucheth over the common Vouchee It was adjudged that that recovery was out of 32 H. 8. for the recovery was not had against the particular Tenant but he was but Tenant in Law quia Vouchee and also the recovery is a good bar to him in the remainder notwithstanding that he was within age at the time of the recovery And at another time it was argued by the Barons and Clark said That he conceived that the Entry of him in the remainder was lawful It hath been objected that Pelham did not know that the Bargainor had but for life or that any other person had any remainder in the Land that is to no purpose to excuse him for 42 E. 3. every Purchasor ought at his own peril to take notice of the Estates and Charges upon the Lands which he purchaseth For the Law presumes that none will purchase without advice of Counsel and without knowing the Titles of the Land. And although Statutes have been made to provide against the practises of particular Tenants yet that is no Argument that no other remedy was before And by Littleton If Tenant for life joyneth the Mise upon the meer right it is a Forfeiture And he held strongly That the Iudgment did not take away the Entry a cause of Forfeiture being given before the Iudgment 5 Ass 3. He in the Reversion after Iudgment and Execution may enter See also 22 Ass 31 to the same purpose For where Tenant for life is impleaded he ought to wait upon him in the Reversion and expect Instructions from him in
by a Writ of Right So if the Vouchee had entred and lost c. As to that Case we ought to consider That every Book reported in our Law is not Law But let us observe of what Authority the Case is truly it is the conceit of the Reporter himself for he puts the Case and resolves it but there is no Iudge or Serjeant named in the Case c. The other Case is 5 E. 4. 2. Note by Hendon clearly If my Tenant for life voucheth a stranger who entreth into the Warranty generally and doth not know how to bar the Demandant the Tenant shall recover in value and the reversion of him who hath in value shall be to me in lieu of my former reversion as release to Tenant for life shall enure to him in the reversion But that is but the Opinion of one Serjeant c. But I answer to these Books If the Demandant in such recovery have a good title so as the Tenant or the Voucher as Hendon saith know not how to bar the Demandant there such a Voucher of a Stranger is not a Forfeiture nor such recovery suffered thereupon for against his will and volens nolens he suffered it But if the Tenant had good matter to bar the Demandant and no good cause of Voucher that the vouching of a stranger or suffering of a recovery is a Forfeiture of his Estate And here in our Case the Defendant had not any title The Tenant or Vouchee had not any Warranty or cause of Voucher But the Tenant might have barred the Demandant if he pleased And he said That the Voucher only doth not make the Forfeiture but much rather the Recovery for when Iudgment is given and Execution had then is the Fee plucked out of him in the reversion 6 R. 2. If Tenant for life claimeth a Fee it is a Forfeiture but here Pelham hath done more for he hath gained Fee by the Iudgment therefore à Fortiori it shall be a Forfeiture But let us a little see what medlings or attempts by the particular Tenant are causes of a Forfeiture and what not 5 Ass 3. Where A. brings an Entry against Tenant for life by collusion to oust B. of his reversion supposing that the Tenant for life held of his Lease The Tenant confesseth the Action upon which Iudgment is given B enters and his entry adjudged lawful for that recovery is adjudged in Law but an Alienation to the disinherisin of him in the reversion and here it appears That such recovery by Covin is but an Alienation and without any strength of a recovery And he cited many other Cases cited before by Altham 14 E 3. Resceit 135. Where Tenant for life pleads in chief or prays in aid of a stranger where he might bar the Demandant and will not it is a Forfeiture And also 22 E. 3. 2. 27 E. 3. where Tenant for life in a Quid juris clamat Attorns unto the Conusee upon a Fine levyed by him who hath not any thing in the Land the same is a Forfeiture and yet that Attornment doth not divert the Reversion out of the Lessor 50 E. 3.7 8. Land was given by Fine in tail the remainder over to a stranger in Fee the Donee took a Wife and dyed without Issue the Wife accepted Dower assigned by a stranger he in the Remainder brought a Scire facias against the Wife that she is Tenant in Dower of the Assignment of a stranger and pleaded to the Title the Demandant recovered she hath lost her Dower for she hath not pleaded dutifully as she ought being a particular Tenant Temps H. 4. Tenant for life loseth his Land in a Recovery against him against his will and thereupon brings Quod ei deforceat and declares upon an Estate tail and recovers the same is a Forfeiture because he hath challenged a higher Estate c. 5 H. 7. Tenant for life joyns the Mise upon the meer Right 2 H. 6. Lessee for years being ousted brings an Assise and recovers 1 H. 7. Accepts a Fine of a stranger sur Conusans c. come ceo que il ad de son done All these are Forfeitures In our principal Case here the Tenant who suffered the Recovery did not plead at all to defend the Right but where he might have barred the Demandant he gave strength to his pretended Title and made it a perfect Title and by suffering the Recovery and Iudgment to pass had taken away the Reversion out of the Lessor to whom he owed Fealty and therefore it is a Forfeiture And without doubt it is apparent to the Court that the Demandant in this Recovery hath not any Title for the Recoverers in such Cases are but Assignees and Purchasors which appeareth by the Statute of 7 H. 8. cap. 4. which gives Distress and Avowry to Recoverers c. As to the inventing of Recoveries it was a necessary Device for it was to take away Estate tails which were the causes of grand Mischiefs and Inconveniencies in this Realm and it was great reason for Tenant in tail might by the Common Law alien his Land post prolem suscitat and then he had an Inheritance and might commit Waste But he was so restrained by the Statute of Westm 2. all the Realm and the Subjects of it were inveigled thereby Ioyntures of Wives Leases of Farmers Mortgages to Creditors Statutes and other Assurances defeated by their deaths which was against the Common Law and all Conscience These matters tending to the knowledge of the Iustices and the Mischiefs thereupon ensuing very frequent and that Tenant in tail was become a perillous Fellow and there was no safe dealing with him Then they taking into consideration that several Warranties and Assets and collateral Warranty without Assets for that in it self implyed Assets did bar him Icil. the Entail upon that consideration they grounded the practice and usage of common Recoveries so that by that means Tenant in tail has potestatem alienandi as he had at the Common Law because his authority was restored to him and injury done to no man But as to Tenant for life he never had potestatem alienandi And as to that which hath been said That the Recovery shall stand in force till after the death of the Tenant for life and in our Case here Tenant in tail is living certainly if the Law should be such great mischief would follow for then greater Ioyntresses the Widows of great Persons having allowed unto them great and sumptuous Houses and Lands furnished with Timber of great value might suffer such Recoveries and so having plucked the Fee out of the Heirs might commit Waste and the same should be dispunishable c. which should be an intolerable Mischief And so he concluded that this suffering of a Recovery was a Forfeiture and Iudgment was given accordingly CCLII Grendon and Albanies Case JOhn Grendon brought Trespass for breaking of his Close against Tho Albany And upon the pleading the Case
Bayliff of his Lord could not do better than admonish the said Bayliff of his duty for it concerned the Honour of his Master and also his Inheritance in the said Liberty But if the said Townsend had been a meer stranger to the said Earl so as no such privity had been betwixt them the same had been clearly Maintenance in Townsend as it was lately adjudged in that Court in the case of one Gifford where the parties being at Issue and a Venire Facias to the Sheriff to retorn a Iury a stranger wrote to one of the Iurors who was retorned in the Pannel praying him to appear at the day and to do in that cause according to his Conscience and the same was adjudged Maintenance And afterwards upon full hearing of the cause the said Townsend by the Sentence of the Court was acquitted of any Maintenance with great allowance and approbation of many Lords of the Counsel there present Bromley Cancellario tantum exclamante CCCXXVII Mich. 15 16 Eliz. In the Common Pleas. IN a Writ of Partition the Defendant prayed in Aid the Plaintiff counterpleaded the Aid upon which Issue was joyned and found for the Plaintiff It was the Opinion of the Court That it was peremptory for the Defendant And the Plaintiff shall have the Partition scil Quod fiat Partitio and the reason thereof is for the delay of the Plaintiff and for the vexation of the Country who are to try it otherwise it had been if it had been adjudged against the Defendant upon a Demurrer CCCXXVIII Mich. 21 Eliz. In the Kings Bench. IN a Formedon of a Manor the Tenant pleaded Ioynt-tenancy by Fine with J. S. The Demandant averred the Tenant sole Tenant as the Writ supposed and upon that Issue was joyned and found for the demandant Vpon which a Writ of Error was brought and Error assigned in this That whereas upon Ioyntenancy pleaded by Fine the Writ ought to abate without any Averment by the Demandant against it the Averment hath been received against the Law And by Southcote at the common Law If the Tenant plead Ioyntenancy by Deed the Writ should abate without any Averment but that was remedied by the Statute of 34 E. 1. but Ioyntenancy by Fine doth remain as it was by the common Law for he hath punishment enough in that because by that Plea if it be false he hath by way of conclusion given away the Moiety of the Land in demand to him with whom he hath pleaded Ioyntenancy and the Law doth not intend that he will so slightly depart with his Land for the abatement of a Writ Else in a Praecipe quod reddat the Tenant confesseth himself to be Villain to a Stranger the Writ shall abate without any Averment of Frank-estate for the Law intends that the Tenant will not enthrawl himself without cause Wray to the same intent But the Demandant may confess and avoid the Fine as to say That he who levied the Fine was his Disseisor upon whom he hath before entred c. And if Tenant in Fee-simple be impleaded and he saith he is Tenant for life the Remainder over to A. in Fee and prayeth in Aid of A. the Demandant shall not take Averment That the Tenant the day of the Writ brought was seized in Fee. Note That in this Fine Ioyntenancy was pleaded but for parcel and it was holden by â—ray and Southcote That the whole Writ should abate as in a Writ against many the misnosmer of the one shall abate the whole Writ against all the Defendants and so where the Demandant enters into parcel of the Land in demand if the Land in demand be one entire thing it shall abate the Writ in all In this Case the Demandant ought to have in his Writ a Foreprise of the Land parcel of the Land in demand whereof the Ioynt-tenancy by Fine is pleaded for this dismembring of the Manor and destruction of the Land whereof the Ioyntenancy is pleaded is peravail and beneath the Gift whereof the Formedon is conceived and therefore in respect of the title of the Demandant it remains in right parcel of the Manor and therefore it ought to be demanded accordingly with a Foreprise But if A. gives to B a Manor except 13 Acres in Tail there if after upon any Discontinuance the Issue in Tail is to have a Formedon in such Case there needs not any Foreprise for the said 10 Acres were never severed from the Manor upon the Gift But if Land in demand be several as 20 Acres but two this Foreprise is not good Vide Temps E. 1. Fitz. Br. 866. Praecipe unam bovat ' terrae except a Selion and the Writ was abated for every demand ought to be certain but a Selion is a parcel of Land uncertain as to the quantity in some places it is an Acre in some more and in some less Another point was That because that the Tenant hath admitted and accepted this Averment scil Sole Tenant as the Writ supposeth if the Court notwithstanding the admittance of the Tenant ought without exception of the party ex Officio abate the Writ And Wray conceived that it might for it is a possitive Law As if a Woman bring an Appeal of Murder upon the death of her Brother and the Defendant doth admit it without Challenge or Exception yet the Court shall abate the Appeal 10 E. 4. 7. And Vide the principal Case there Non ideo puniatur Dominus And if an Action be brought against an Hostler upon the common Custom of the Realm and in the Writ he is not named Common Hostler and the Defendant doth accept of such a Writ without any Exception unto it yet the Court shall abate the Writ ex Officio Vide 38 H. 6. 30. CCCXXIX Mich. 21 Eliz. In the Kings Bench. NOte this Case A. makes a Feoffment in Fee to B. and binds himself only to warranty without more B. is impleaded and voucheth A. who enters into the Warranty and loseth so as Iudgment is given against B. and also to recover in value against A. who before Execution dyeth It was the opinion of the Court that B. should have Execution in value against the Heir of A. CCCXXX Mich. 21 Eliz. In the Common Pleas. A. Seized of Lands in the right of his Wife for the term of the life of the Wife made a Feoffment in Fee to the use of his said Wife for her life In that case the wife is remitted and it is not like Townsends Case Plowd Com. 111. for in that case the Entry of the Wife was not congeable for she was Tenant in tail which Estate was discontinued by the Feoffment of her Husband Periam Iustice cited Siâ—enhams case Baron seized in the right of his Wife for the term of the life of the Wife They both surrendred and took back the Land to them and a third person And it was holden that the Wife was not presently remitted but after the death of her Husband
Tenants and therefore ought not to joyn c. It was Adjourned Temps Roign Eliz. In the Kings Bench. CCCLVII The President of Corpus Christi Colledge Case NOte It was holden by Cholmley Serjeant Plowden and many others in the Case of the President of Corpus Christi Colledge in Oxford That if the said Master or President of any such Colledge by his Will deviseth any Land to his Colledge and dyeth such Devise is void For at the time when the Devise should take effect the Colledge is without a Head and so not capable of such Devise for it was then an imperfect Body And so it was holden by the Iustices upon good advice taken thereof CCCLVIII Temps Roign Eliz In the Kings Bench. IN a Warrantia Chartae the Defendant said that the Plaintiff had not any thing in parcel of the Land the day of the Writ brought If in a Praecipe quod reddat the Tenant aliens and afterwards vouches the Vouchee is not bound to enter into the Warranty But here in this Case it may be That at the time that the Plaintiff requested the Defendant to warrant he was Tenant of the Land in which Case the warranty is attached and then if ever the Land be recovered against him he shall have this Writ and of this Opinion was Brown Iustice For the Land which the Defendant had at the time of the request is bound by the request but if he alieneth after the request he shall not have the Warranty CCCLIX Mich. 9 Eliz. In the Kings Bench. A Man seized of a Manor in which there are divers Copy-holds and the Custom there is That if any Copyholder leaseth his Land above the term of one year that he shall forfeit his Copyhold A Copyholder committed such a Forfeiture and afterwards the Lord leased the Manor for years and the Lessee entred for the Forfeiture and Weston said that his Entry was not lawful for although that the Heir may enter for a Condition broken in the time of his Ancestor because he is privy in blood yet the Lessee or Feoffee cannot do so for he is a Stranger such a one of whom an Estranger shall not take advantage Dyer If this forfeiture be preserved by Homage and enrolled in the Court Rolls the Lessee may well afterwards enter for by the forfeiture the Copyhold Estate is void and determined as if a Leafe for years be made rendring Rent upon Condition to cease if the Rent be not paid here presently by the not payment the Interest of the term is determined and of that the Grantee of the Reversion shall have advantage CCCLX Mich. 10 Eliz. In the Common Pleas. AN Action upon the Case was brought for stopping of a way The Plaintiff declared that the Duke of Suffolk was seized of a House in D. and let the same to the Plaintiff for life and that the said Duke and all those whose Estate c. have used time out of mind c. to have a way over the Land of the Defendant to the Park of D. to carry and recarry Wood necessary for the said House from the said Park to the same House and further declared That the Defendant Obstupavit the way It was moved by Carus That upon that matter no Action upon the Case lay because the Freehold of the House is in the Plaintiff and also the Freehold of the Land over which c. is in the Defendant But if the Plaintiff or the Defendant had but an Estate for years then an Action upon the Case would lye and not an Assize and it is not material If the Plaintiff had but an Estate for years in the Park quod fuit concessum per totam Curiam It was also holden That this word Obstupavit is sufficient without any more without shewing any special matter of the stopping as the erecting of any Gate Hedge Ditch c. for Obstupavit implyes a Nusance continued and not a personal disturbance as forestalling or saying to the Plaintiff upon the Land where c. that he should not go over or use the said way for in such case upon such a disturbance an Action upon the Case lyeth But as to a local and real disturbance the word Obstupavit amounts to Obstruxit and although in the Declaration is set down the day and year of the stopping yet it shall not be intended that it continued but the same day for the words of the Declaration are further By which he was disturbed of his way and yet is and so the continuance of the disturbance is alledged and of that Opinion was the whole Court. Leonard Prothonotary He hath declared of a Prescription habere viam tam pedestrem quam equestrem pro omnibus omnimodis Carriagiis and upon that Prescription he cannot have a Cart-way for every Prescription est stricti juris Dyer That is well observed and I confess that the Law is so and therefore it is good to prescribe habere viam pro omnibus Carriagiis without speaking either of a Horse or a Foot-way CCCLXI. A. Enfeoffed B. to the intent that B. should convey the said Land to such person as A. should sell it A. sold it to C. to whom B. refused to convey the Land and thereupon he brought an Action upon the Case against B. And by Wray Chief Iustice and Gawdy Iustice here is a good consideration for here is a trust and that which is a good consideration in the Chancery is in this case sufficient Shute Iustice was of a contrary Opinion And afterwards Iudgment was given for the Plaintiff Mich. 29 Eliz. In the Common Pleas. CCCLXII Sir Richard Lewknors Case SIr Richard Lewknor seized of Wallingford Park Ante 162. made a lease thereof for years and dyed the Lessee granted over his term to another excepting the Wood the term expired and an Action of Waste was brought against the second Lessee by the Coparceners and the Husband of the third Coparcener being Tenant by the Courtesie Shuttlewood and Snag Serjeants did argue That the Action would not lye in the form it was brought and the first Exception which was taken by them was because the Action was general viz. Quod fecit vastum in terris quas Sir Roger Lewknor pater praedict ' of the Plaintiff cujus haeredes ipsae sunt praefat ' Defendent demisit And the Count was that the Reversion was entailed by Parliament unto the Heirs of the Body of Sir Richard Lewknor and so they conceived that the Writ ought to have been special cujus haeredes de Corpore ipsae sunt For they said that although there is not any such Writ in the Register yet in novo Casu novum est apponendum remedium And therefore they compared the Case to the Case in Fitz. N. B. 57. 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 dyeth and the Husband committeth waste the Writ in that case and the like
Copy-hold 88 Not within the Statute of Wills. 236 If a Copyholder in possession surrender the Reversion of his Land post mortem suam to the Lord to an use nothing is thereby passed 8 Tenant for Life of a Copyhold remainder in fee he in the remainder may surrender his Estate if there be no Custom to the contrary 9 In what Case a Copyholder ousted cannot make a Lease for years upon which the Lessee may maintain Ejectione firmae 30 If a Copyholder dyeth his Heir within age he is not bound to come to any Court during his Non-age to pray admittance or tender his Fine 31 If the death of his Ancestor be not presented nor proclamations made he is not at any mischief although he be at full age ibid. A Copyholder may surrender by Attorny 111 241 Costs The Plaintiff shall have Costs upon 5 Eliz. for hunting in his Park notwithstanding the Statute gives treble damages 36 If the Plaintiff be Non suited in an Action upon an Escape the Defendant shall not have Costs 182 Debt SHall not be brought against the Husband upon a Contract by the Wife 42 For Rent 18. For Rent-Corn reserved upon a Lease for years shall be brought in the Detinet 47 Upon a Concessit solvere according to the Law Merchant and Custom of the City of Bristol 105 Devise To a Colledge in Vacancy of a Head. 223 If one possessed of a Term deviseth that his Son shall have the same when he comes to the age of 18 years and that his Wife whom he makes Executrix shall enjoy it in the mean time and dye and the Wife take Husband she shall have the Term as Executrix till the Son accomplish the age of 18 years 1 Of Lands part to the eldest Son in Tail and part to the younger Son in Tail with this clause That if any of the Sons dyed without Issue the whole Land to remain to a Stranger in Fee the Sons entred respectively and the younger dyed without Issue the Stranger entred but his Entry was not lawful for the eldest Son shall have the Land by the implicative Devise 14 By a Father to his Son and Heir 35 200 237 Who shall first take by a Devise 37 Emblements WHere by Law they belong to the Executors 1 Entry If a Disseisor of 100 Acres le ts the same to divers for years the Entry in one Acre by the Disseisee is an Entry against them all 8 And if one makes a Lease for years rendring 10 l. for the first two years and afterwards 30 l. every year with Condition to Re-enter if the Rent of 30 l. or any part be behind the Lessor enters for Non-payment of the 10 l. his Entry is lawful for it was but one Rent of which the 10 l. was parcel ibid. Entry Congeable 39 Error He who is special Heir by the Custom as of Burrough English shall have the Writ of Error and not the Heir at Common Law. 5 Estate Executed 37 Estrepement In Partition ought not to be granted and why 60 Evidence Maybe good enough to maintain a Declaration though it vary from it 14 Execution An Infant once discharged out of Execution shall never be in Execution again 6 Execution of a Statute shall bind the King. 10 Where not good upon a Capias without a Scire Facias 24 If the Bail be taken in Execution before the Capias ad Satisfaciend against the Defendant be filed they may avoid this Execution by Error but not by Plea or Surmise 24 If the Plaintiff takes out Execution within a year and a day after Judgment obtained although he doth not prosecute it in two or three years yet when he pleaseth he may proceed upon it and shall not be put to a Scire Facias 44 Exposition of Words The words sub Conditione ea Intentione in a Feoffment be not a Condition but an Estate executed presently according to the intent 2 Domus est nomen collectivum and contains many Buildings as Barns Stables c. 16 Omnes Dimissiones being general words shall not be restrained to special Leases 17 The word growing though it sound in the Present Tense yet it shall be taken also in the Future Tense 36 So the word being but otherwise if the words had been tunc being 37 The word paying if it creates a Condition or not Quaere 50 Proviso semper put on the part of the Lessee upon the words of the Habendum makes a Condition but contrary of a Proviso on the part of the Lessor 71 The Provost Fellows and Scholars of Queens Colledge in Oxford as Guardians of the Hospital c. in S. make a Lease of Lands parcel of the Possession of the said Hospital by the name of Praepositus Socij Scholares Collegij Reginalis in Oxonia Gardianus Hospitalis c. and good without saying Gardiani in the Plural Number 85 Extinguishment If Lessee for 10 years grant a Rent-Charge to his Lessor for the same years and the Lessor grant the Remainder in Fee to the Lessee for years by this the Rent is extinguished 2 Felo de se IF the Queen grants to A. Catalla Felonum de se within such a Precinct where one indebted to the Queen having Goods is Felo de se the Queen shall have the Goods to satisfie her Debt 6 Feoffment To Uses 23 By one Coparcener cestuy que use of the whole is not only a Feoffment of that moiety she might lawfully dispose of but also of the other moiety by disseisin 52 Fines of Lands Where a Fine levied by the Husband of Lands whereof he and his Wife are Donees in Special Tail shall bar the Issue and where not 2 Fine by the Husband where avoids a Lease e contra 15 Fines levied to Uses 22 Issue of a Tenant in Tail the Remainder to the King shall be barred by a Fine 40 Fine for Alienation Not only the Land aliened but the other Lands of the Alienor shall be chargeable for the Fine for Alienation without Licence 47 Forfeiture If Lessee for years being sued for Rent claims Fee in the Land and hath none it is a Forfeiture 3 Of an Obligation with Condition That the Grantee of the next Avoidance of an Advowson should enjoy the same without any disturbance or claim of the Grantor 18 An Obligation to perform a Covenant that the Lessee of a Term shall enjoy it without expulsion or any Act done or to be done by the Lessor shall not be forfeited by Non-fesance 38 39 Of an Obligation conditioned to perform an Award 190 If Tenant for life joyn the Mise upon the meer Right it is a Forfeiture 128 Where Tenant for life is impleaded if he maketh default or confesseth the Action it is a Forfeiture ibid. If Tenant for life bargains and sells his Land by Deed inrolled although no Fee passeth yet it is a Forfeiture 129 contra 124 Grant. BY the King of the Office of the Kings Bench. 19 Recital in Grants of the King.
being sown the Executors of A. take the Corn it was holden the Obligation was not forfeited for that by the Laws the Corn did belong to the Executors II. Pasc 23 Eliz. A Man possessed of a Term devised the same to his Son when he came to the age of 18 years Devise and that his Wife should have it in the mean time and made his Wife his Executrix and died before the Son came to the age of 18 years the Wife took Husband It was holden that she should have the Term as Executrix till the Son came of the age of 18 years III. Mich. 23 Eliz. A Man made a Feoffment in Fee sub Conditione ea intentione that his Wife should have the Land for her life the remainder to his younger Son in Fee The Feoffee died without making such an Estate the Heir of the Feoffor entred it was resolved that it was not a Condition but an Estate which was executed presently according to the intent Trin. 8 Eliz. IV. Manning and Andrews Case Vide 1 Leon. 256. 1 Leon. 345. Fine levied a Bar. HVsband and Wife Donees in special tail the Husband levied a Fine of the Lands It was holden if the proclamations pass in his life time or before the Wife by her entry had avoided the Fine the Issue should be barred otherwise if the Husband had died before the proclamation had passed 27 Eliz. In the Common Pleas. V. Buckhursts Case Extinguishment LEssee for 10 years granted a Rent Charge to his Lessor for the said years the Lessor granted the remainder in Fee to the Lessee for years It was the opinion of the Iustices that the rent was gone because the Lessor who had the rent was Party to the destruction of the Lease which is the ground of the rent 26 Eliz. VI. Pulmants Case Assumpsit ONe who is indebted promiseth to pay it upon request in an Action upon the Case upon that Promise the Party needs not to express the Assumpsit with the request it being an old debt but otherwise it is where there is such a promise without any duty precedent VII Hill. 26 Eliz. In the Kings Bench. Assumpsit A Man in consideration of 20 l. paid him promiseth to assign to J. S. the Lease of a Stranger It was adjudged that an Action would lie upon such a promise because the Assumor might purchase the House and then assign it Hil. 26 Eliz. In the Kings Bench. VIII Rawson and Browns Case A. Being in prison at the suit of B upon an account Assumpsit and in custodia Marescalli The Marshal suffers him to escape A. being at liberty promiseth to B. that if he will permit him to be at large and further if he do such an act that he will pay to him 10 l. which he doth not pay whereupon B. brings Assumpsit against him it was adjudged that the Action would not lie for that both the considerations ought to be proved and A. was at large before 31 Eliz. In the Kings Bench. IX Strangborough and Warners Case NOte Assumpsit That a Promise against a Promise will maintain an Action upon the Case as in consideration that you do give to me 10 l. on such a day I promise to give you 10 l. such a day after 31 Eliz. X. Escrigs Case IF an Executor promiseth to a Creditor Assumpsit that if he will forbear to sue him until such a time that then he will satisfie the Creditor his debt in that case the Execuor is liable to pay the debt of his own goods adjudged 30 Eliz. In the Kings Bench Rot. 30. XI Kirkman and Reignotts Case A Lease was made to two Habendum to them Occupant and to two others for their four lives and the longer liver of them It was resolved that the two named in the Habendum should not take any thing and that if the two first die there should be no Occupancy for the lives of the two in the Habendum was intended an Estate to them and not a Limitation of the Estate of the first two Pasc 30 Eliz. XII Barkhouse Case DEbt against Lessee for years for rent Forfeiture The Defendant claimed Fee in the Land whereas he had no Fee It was resolved that it was a forfeiture XIII Pasc 31 Eliz. In the Common Pleas. Avowry IT was resolved by the Iustices that an Avowry might be for part of a Rent Mich. 28 Eliz. In the Kings Bench. XIV Strangden and Burnets Case IN an Action of Trover and Conversion of Goods to his proper use in Ipswich The Defendant pleaded that the Goods came to hands in Dunwich in the same County and that the Plaintiff gave unto him all Goods which came to his hands in Dunwich Pleadings absque hoc that he is guilty of any Trover or Conversion in Ipswich It was ruled to be a good manner of pleading by reason of the special Iustification Vide 27 H. 6. But where a Iustification is general the County is not traversable at this day Vide 19 H. 6 7. 24 Eliz. In the Common Pleas. XV. Infant AN Infant made a Lease for years rendring rent and when he came to his full age he said to his Lessee God give you joy of it It was holden by Mead Iustice that thereby the Lease was affirmed and made good Pasc 25 Eliz. XVI Fullers Case ONe is bound to pay his rent at a day certain payment before the day adjudged doth not discharge him 29 Eliz. In the Kings Bench. XVII Carter and Martens Case Payment TWo are bound for a Debt the Principal makes the Surety his Executor who pays the Debt generally Quaere if it shall be as Executor or as Obligor XVIII Pophams Case Bargain and Sale. LAnd was bargained and sold the Bargainee levies a Fine of the Lands and afterwards within the six months the Deed is enrolled It shall pass by the Fine and the Conusee shall have the Land for the Enrollment shall relate to the time of the bargain and sale 18 Eliz. XIX Henninghams Case IT was adjudged in this Case that he who is special Heir by the Custom as of Borough English Land shall have the Writ of Error and not the Heir at the Common Law. Hil. 19 Eliz. Adjudge XX. Parry and Herberts Case LEssee for years upon Condition that he shall not grant over the Land by Will or otherwise Condition and he deviseth the same to his Executors who except it only as Executors and not as Devisees It was holden that the Condition was broken because he had done as much as in him lay to have granted it over In the Exchequer XXI Sir Thomas Hobbies Case A Man hath issue two Sons and is attainted Heirs the eldest Son purchaseth Land and dyeth without issue the second Son shall inherit the Land as Heir to him notwithstanding the attainder of the Father because the blood is not corrupted between the two Sons
Mich. 29 Eliz. In the Kings Bench. XXII Barton and Edmunds Case AN Infant and another were bound for the debt of the Infant Infant the Infant at his full age promised to save the other harmless the Infant died It was adjudged that upon this Assumpsit Assumpsit an Action upon the Case did lie against his Executors XXIII Mich. 36 Eliz. In the Kings Bench adjudged IF an Executor promise to pay a Debt when he hath not Assets It was the Opinion of all the Iustices that no Action upon the Case lieth against him but if he hath assets then it is otherwise And the Heir if he hath nothing by descent is not subject to an Action upon such a promise Mich. 28 Eliz. XXIV The Lord Pagets Case Indictments AN Indictment was Quare vi armis clausam A. B. apud D. fregit whereas A. B. then had a Lease at Will of the land the matter was for digging of Turfs the Indictment was holden to be good XXV 25 Eliz In the Kings Bench. Indictments INdictment De uno Equo where it was a Gelding holden not good But otherwise it is where Trespass was brought de Equo castrato and the Iury found a Gelding and adjudged for the Plaintiff 26 Eliz. XXVI Tucker and Nortons Case Execution AN Infant in Execution upon condemnation in Debt sued a Writ of Error his Father and Brother bailed him It was said the Recognisance shall be by them two only that the Infant shall appear and if the Iudgment be affirmed that they pay the mony and not that they shall render his body to prison for when he is once discharged out of Execution he shall never be in Execution again XXVII Mich. 29 Eliz. In the Common Pleas. Nobleman Recognizance IT was holden by the Iustices That a Nobleman shall be bounden with his bail in a Recognizance that he shall render his body and that upon the Statute of 13 E. 1. If he hath not goods or lands his body shall be taken in execution for the Law in such case excepts only Clarks XXVIII Hil. 26 Eliz. In the Exchequer Felo de se THe Queen granted to one Catalla utlagatorum felonum de se within such a Precinct One indebted to the Queen having Goods is felo de se within the Precinct Resolved the Queen should have the Goods to satisfie her debt 26 Eliz. In the Kings Bench. XXIX King and Cottons Case LEssee for life the remainder in tail the remainder in fee Disseisin Lessee for life makes a Deed of Feoffment of the Land and delivers it and makes a Letter of Attorney to another to deliver Seisin who enters and makes Livery accordingly adjudged that the Attorney is a Disseisor 26 Eliz. In the Kings Bench. XXX Gerrards Case THe Owner of the Lands severed his Tythes Prohibition and a stranger took them and carried them away The Parson libelled in the Spiritual Court against the Owner of the Land for the Tythes who thereupon prayed a Prohibition It was adjudged no Prohibition should issue in this Case for that he might plead the same matter in Bar in the Spiritual Court. Hil. 31 Eliz. XXXI Willet and Wilkinsons Case NOte it was adjudged Surrender that if Lessee for years take another Lease from the Guardian in Soccage that the same is a Surrender of his first Lease Note the second Lease was made in the name of the Guardian Trin. 26 Eliz. XXXII Ould and Conyes Case IT was adjudged Commoner Conies that a Commoner cannot kill Conies which destroy his Common though he hath not any other remedy Trin. 29 Eliz. In the Kings Bench. XXXIII Mayes Case ONe sent a Letter by a Carrier to a Merchant for certain Merchandizes to send them to him receiving a certain sum of mony the Merchant sent the Merchandizes by the Carrier without receiving the mony It was the opinion of the Iustices that the Buyer should not be charged for the mony for it was a conditional bargain and it was the folly of the Merchant to trust the Carrier with the Wares Mich. 30 Eliz. XXXIV Haltons Case A Recognizance was acknowledged before Sir N. Read one of the Masters of the Chancery Recognizance Inrollment and the Recognizor died before it was enrolled it was doubted if it might be enrolled at the Petition of his Executors it was agreed by the Iustices that it might be well enough for it is like to a Conusans of a Fine before a Iudge which may be removed out of the hands of the Iudge by Certiorari and yet it is not a Record till the perfection of it At the same time it was doubted also if the Chancery would aid a man when there wanted the words Heirs in a Deed where the land was sold for mony Chancery compel Attornment But it was agreed that after a Fine levied the Chancery might compel the Tenant to Attorn Hil. 27 Eliz. XXXV Holland and Hopkins Case IN Ejectione firmae it was agreed by the Court that if a Disseisor be of an 100 Acres and he lets the same to divers for Years that the entry into one Acre by the Disseisee is an entry against them all but if they had been Tenants for life Quaere for that then he might have his Action against them And it was said Entre congeable that if one makes a Lease for years rendring for the first two years 10 l. and afterwards 30 l. every year with condition if the rent of 30 l. or any part of it be behind that the Lessor enter The Lessor enters for not payment of the 10 l. that his entry is lawful for the 10 l. was parcel of the rent for it was but one rent Trin. 29 Eliz. In the Kings Bench. XXXVI Clamp and Clamps Case Copyholder Surrender A Copyholder in possession surrendred the Reversion of his land post mortem suam to the Lord to an use c. It was adjudged that thereby nothing passed XXXVII Trin. 21 Eliz. In the Common Pleas. A Lease was made of a Mannor with all Gardens Orchards Yards c. and with all the profits of a Wood except to the Lessor forty Trees to take at his pleasure It was a Question if the Lessee should have the Wood It was the opinion of Dyer That the Wood was not comprised within the Lease but the Lessee should only have the profits as pawnage Leases herbage c. And he said it was a Case adjudged a man made a Lease of a Wood ad faciendum maximum proficuum meliori modo quo poterit that the Lessee thereby could not cut the Trees nor do waste Mich. 33 Eliz. In the Exchequer XXXVIII Butler and Lightfoots Case IT was holden by the Barons Copyholder Surrender 3 Leon. 239. That if Tenant for life be of a Copyhold the Remainder over in Fee to another he in the Remainder may surrender his Estate if there be no custom to
which Ayliffe concessit Wray Chief Iustice was absent in the Star-Chamber Trin. 26 Eliz. In the Kings Bench. XLV Harvey and Harveys Case Suit for Legacies Prohibition CLare Harvey libelled against Sebastian Harvey the Executor of Sir James Harvey their Father for a legacy bequeathed to him by his Father in his Will. By which he willed that after his death his Goods should be divided and parted betwixt his Children according to the laudable custom of London and averred in his libel that the Goods and Chattels whereof the Testator died possessed amounts to such a sum and that it belonged unto him being one of his children to demand so much Virtute Legationis praedict The Defendant came and prayed a Prohibition and Wray Chief Iustice conceived he ought to have it for here is not any legacy but the Testator setteth forth his meaning that his pleasure is that the custom of London should be observed in the disposition of his Goods and the said Clare is put to his Writ de rationabili parte Bonorum But yet afterwards a special Consultation was granted Pasc 27 Eliz. In the Common Pleas. XLVI Sandersons Case Leet NOte It was adjudged by the Court that Pound-breach is not inquirable in a Leet for it is not a common Nusans But Rhodes Serjeant said that excessive Toll is inquirable in a Leet Vide Book of Entries 390. XLVII Pasc 37 Eliz. In the Common Pleas. Abatement of Writ IN a Quare Impedit by the Queen exception was taken to the Writ because the words were quod permittat ipsam praesentare ad Rectoriam de D. where it ought to be ad Ecclesiam the Court awarded that the Writ should be openly amended in Court by a Clerk of the Chancery Amendment XLVIII Pasc 27 Eliz. In the Common Pleas. Pleadings IN a Writ of Entry for Disseisin the Tenant said that the House in demand is within the City of London and that the said City is an ancient City and that King Henry 3. concessit Civibus Civitatis praedict quod non implacitentur de terris tenementis suis c. extra Muros Civitatis praedict and said that he himself is a Citizen of London and demanded judgment of the Writ and to the Pleading he further said Sed illis rectum teneatur infra Civitatem praedictam secundum Consuetudinem Civitatis praedict Exception was taken to the Plea because the Tenant did not shew before that by their custom they ought to be impleaded And by the Opinion of the whole Court the Tenant ought to have shewed that the Citizens for their lands there ought to be impleaded in the Hustings c. And the general words in the Plea Sed illis rectum reneatur infra Civitatem praedictam secundum consuetudinem Civitatis praedict do not supply the defect aforesaid And afterwards it was awarded that the Tenant plead Ouster Mich. 21 Eliz. In the Common Pleas. XLIX Hunt and Sones Case AN Action upon the Case by W. Hunt against W. Sone Assumpsit 2 Leon. 107. Owen 42. 3 Cro. 118. 1 Roll. 29. 30. ibid. The Plaintiff declared Quod cum idem Hunt was seised in his Demesn as of Fee of certain lands and shewed the same in certain praedict Sone in consideration that the said Hunt permit the said Sone occupare terras praedict ab eodem die 20 Julij 27 Eliz. usque ad secundum diem Novembris which should be in Anno 1589. assumed and promised that he the said William Sone ad festum omnium Sanctorum proxime sequend 10 l. 2 s. 6 d. ac ab inde annuatim durante dict termino 20 l. 5 s. ad festa Annunciationis Beatae Mariae ac omnium Sanctorum per aequales portiones solvend eidem Hunt bene fideliter contentare vellet at licet praedict W. Hunt permisit praefat Sone occupare terras praedict a dict 20 die Julij 27 Eliz. Usque ad secundum diem Novemb. 28 Eliz. Licetque etiam post dict 20 diem Julij 27 Eliz. ante praedict diem secund Novemb. An 28 Eliz. dict fest omnium Sanctorum An. 27. Supradict ac fest Annunciationis Beatae Mariae Virginis ac fest omnium Sanctorum 28 Eliz. praeterierunt praedict tamen W. Sone dict 10 l. 2 s. 6 d. ad praedict fest omnium Sanctorum proxime sequend post permissionem assumptionem praedict ac aliam 10 l. 2 s. 6 d. ad fest Annunciationis 28 Eliz. ac alia 10 l. 2 s. 6 d. ad fest omnium Sanctorum An. 28. Eliz. superdict nondum solvit The Defendant pleaded that the Plaintiff entred into parcel of the Premises 6 October 28 Eliz. eadem occupare eundem Sone non permisit upon which they were at Issue and it was found for the Plaintiff it was moved in stay of Iudgment that the Plaintiff had no cause of Action before that all the Term was expired for it is an entire Assumpsit and cannot be severed by action and therefore it was said that if I promise to pay you 10 l. viz. at such a Feast 5 l. and at such a Feast other 5 l. there before the last day of payment no Action lieth for the sum of 20 l. is one sum entire But if I promise to pay another at Easter next 10 l. and at Midsummer as much here they are several Assumpsits and upon default of payment of the first sum an Action will lie without excepting the latter payment But at last the Court agreed That Iudgment notwithstanding that exception should be given for the Plaintiff and that the Declaration was good enough as well in respect of the Exception aforesaid as also that the word Licet was effectual enough to set forth the permission L. Hil. 31 and 32 Eliz In the Common Pleas. A. Disseised B. of two Acres of Land and leased one of them to C. at will and the other Acre to D. at will and they entred accordingly B the Disseisee by Lease leased both Acres to E. for years and entred into one of the Acres in the name of both and sealed and delivered the Lease to E. It was holden by the Court to be a good Lease to maintain an Ejectione firmae of both Acres LI. Mich. 32 Eliz. In the Common Pleas. 2 Cro. 655 656 plus 2 Roll. 416. Johnson versus Smart cont A. Seised of certain Lands and having two Sons devised part of his Lands to his eldest Son in tail and the other part of his Lands to his younger Son in tail with this clause in the Will that if any of his Sons dyed without Issue that then the whole Land should remain to a stranger in Fee and dyed the Sons entred into the Lands devised to them respectively and the younger Son died without issue and he to whom the Fee was devised entred It was adjudged That this Entry was not lawful and that the eldest Son should have the Land by the implicative devise Mich. 32 Eliz. In the
Defendant that these Matters of Forgery were not within the Statute of 5 Eliz. nor also the Perjury or the procurement thereof upon which the Lords of the Council there Upon the Statute of 5 Eliz. of Perjury referred the consideration of the said Statute to both the Chief Iustices who at the next day in Court declared their Opinions upon the said Matters i. e That the said Matters did not extend to the Forgery of a Deed containing a gift of Chattels personals which see clearly by the Statute which as to that purpose extends but to Obligations Bills Obligatorie Acquittances Releases or other Discharges and that also a Deed of Assignment of a Lease of Lands in Ireland is not within the said Statute and also they were of opinion that the said Perjury and the procurement of it was not punishable by the said Statute because the Oath was taken coram non Judice for the Town-Clerk of London could not take an Oath in such a case Note no more than a private person But because that the Bill in the perclose and conclusion of it was contrary to the Laws and Statutes of this Realm the two Chief Iustices were of Opinion That the said Court might punish these Offences as Misdemeanors at the Common Law but not according to the Statute and afterwards Shyriffe was fined and by Order of the Court to stand upon the Pillory Mich. 29 Eliz. In the Exchequer Chamber LXXX The Queen and Lord Vauxes Case Bills IN the Exchequer Chamber before the Chancellor c. the Lord Vaux brought a Writ of Error upon a Iudgment given against him in the Court of Exchequer and assigned for Error that a Bill was exhibited against him that the Lord Vaux had taken certain goods of the Queen at Westminster in the County of Middlesex and also had intruded into the Rectory of Ethelborough in the County of Northampton whereas the Queen ought to have brought several Bills being for several causes arising within several Counties But it was resolved by the whole Court That the Bill of the Queen was good enough and here is no mischief for if the Defendant will plead Not Guilty two several Venire Facias shall be awarded one into Middlesex the other into the County of Northampton Mich. 27 Eliz. In the Common Pleas. LXXXI Owen and Morgans Case GEorge Owen brought a Scire Facias against Morgan to have Execution of a Fine levied 8 Eliz. by which Fine the land was given to the Conusee and his heirs the Conusee rendred the same to the husband and wife and to the heirs of the body of the husband Note that the husband was the Conusor the remainder in Fee to the now Demandant and note that the Writ of Covenant was between the Conusee Plaintiff and the husband Deforceant without naming the wife And afterwards the husband suffered a common Recovery without naming of the wife Common Recovery the hushand and wife died without Issue and now Owen to whom the remainder was limited by the Fine brought a Scire Facias in bar of which the Recovery was pleaded It was argued by Shuttleworth Serjeant That the said Recovery had against the husband was a good bar Feme not party to the Writ of Covenant not bound by a Recovery and should bar the remainder and the wife ought not to be named in or party to the Recovery for that nothing accrued to her by the Fine because she was not party to the Writ of Covenant and to the Conusans vide 32 H. 8. Fines 108. None can take by the Fine but those who are named in the Writ of Covenant but every Stranger may take by way of Remainder Vide etiam 7 E. 3. Br. Fines 114. 6 E. 3. Fitz. Fines 117. 7 E. 3. Fitz. Scire Facias 136. It is said by Herle if such a Fine ut supra be taken it is good as long as it is in force LXXXII Sir Richard Lee and Arnolds Case Post 93. SIr Richard Lee Kt. seized of three Manors made a lease of them to Sir Nicholas Arnold for certain years reserving for the one Manor 5 l. and for the other Manor 10 l. and for the third Manor 10 l. upon condition that if the said rents or any of them or any part c. be behind a re-entry into all the Manors and afterwards he bargained and sold the reversion of one of the said Manors to William Winter in Fee and afterwards by Deed indented and inrolled bargained and sold the two other Manors and for the rent of one of the said Manors the Vendee did re-enter into all the Manors Manwood Here are several reservations Reservation of Rents upon a joynt Lease several rents and several leases for although that the words are joynt yet by construction they are become several as Land given to an Abbot and a Secular man although here be joynt words yet they are Tenants in Common Litt. 296. And if I sell to you two Horses the one for 5 l. and the other for 5 l. here are two several contracts the Parties to whom these reversions are assured ut supra are Assignees within the Statute of 32 H. 8. by which it is enacted that Assignees may take advantage of Conditions for such an Assignee is not meerly in by act of law as the Lord by Escheat and he is not such an Assignee but is in by conveyance The Lessor enters upon his Lessee Assigns and makes his Feoffment and the Lessee re-enters now the Feoffee is an Assignee and this condition is destroyed in part and continued in part Condition destroyed in part good in part If one hath Common in the land of another for 20 beasts and releases his Common for 10 beasts the Common for the residue remains but if he purchaseth part of the land in which he hath Common the whole Common is destroyed A Feoffment to two with warranty and one of them releases the warranty all the warranty is gone As to the condition for as much as it is not collateral but incident to the reversion it may be severed and is of the same nature as the rent and reversion A man possessed of lands for 20 years and seized of other lands in Fee Conditions divided leaseth all the land for 10 years reserving rent with clause of re-entry and dieth now the Heir hath a reversion for the land in fee and the executor for the other land so the condition is divided according to the reversion so if lands were given to one in general tail and others in special tail he thereof makes a lease rendring rent and dieth having several Issues inheritable to each tail now the condition shall go according to the rent and he conceived that the Grantee of parcel of the reversion is an Assignee within the said Statute Grantee of parcel of the Reversion is an Assignee within 32 H. 8. Of Conditions as if a Lease for years
the Exchequer lend unto another 500 l. of the Queens money and takes a Bond for it in his own name yet the Queen shall have an Accompt against the Borrower Mich. 29 Eliz. In the Exchequer XC Pelhams Case IN the Exchequer Chamber before the Chancellor Treasurer Savile Rep 43. Grant of Office of Sheriff and Barons there in the Case of Pelham the Case was That the Queen had granted by her Letters Patents that Pelham should not be Bailiff Constable nor other Officer or Minister Licet eligatur yet it was holden that the Queen might make him Sheriff for that Grant doth not extend to Officers Royal as Grants of Amercements do not extend to Amercements Royal and also the Office of Sheriff doth not lye in Election but if the words had been Licet eligatur per nos then it should have been otherwise And such was the Opinion of Bromley then Lord Chancellor Trin. 19 Eliz. In the Kings Bench XCI Godbolts Case IN the Case of one Godbolt It was agreed Sales that the sale of a Bailywick of a Hundred was not within the Statute of 5 E. 6. cap. 16. For such an Office doth not concern the Administration of Iustice nor is it an Office of Trust XCII In Temps Eliz. A. Granted to B. a Rent-charge out of his Lands to begin when J. S. died without Issue of his Body J. S. dyes having Issue which Issue dyes without Issue Dyer held that the Grant shall not take effect for J. S. at the time of his death had Issue and therefore from thence the Grant shall not begin and if not then then not at all And Manwood said that if the words had been to begin when J. S. is dead without Issue of his Body then such a Grant shall take effect when the Issue of J. S. dies without Issue c. If Donee in Tail hath Issue which dies without Issue the Formedon in the Reverter shall suppose that the Donee himself died without Issue for there is an Interest Difference between an Interest and a Limitation and there is a diversity between an Interest and a Limitation for if I give Land between A. and B. for term of their lives if any of them dye the Survivor shall hold the whole but if I give Lands to A. for the lives of B. and C. now if B. and C dye the whole Estate is determined because it is but a Limitation and B. and C. have not any Interest Vide to this purpose 34 Eliz. Brudnels Case in Cook 5. p. 9. XCIII Temps Roign Eliz. In the Common Pleas. A. Seized of a Manor leased the same for years rendring rent with clause of re-entry and afterwards levied a Fine Sur Conusans de droit c. to the use of himself and his Heirs the rent being demanded is behind Dyer A. cannot re-enter for although the rent in right passeth without Attornment yet he is without remedy for the same without Attornment and it would be hard without Attornment to re-enter It was here moved further if the Conusor be an Assignee within the Statute of 32 H. 8. Manwood The reversion of a Termor is granted by Fine there wants Privity for an Action of Debt Waste and Re entries But if the Conusee dieth without Heir although that in right it was in the Conusee yet the Lord by Escheat shall make Avowry and yet the Conusee by whom he claims could not And in the Case at Bar the Conusee himself could not but the Conusor being Cestuy que use who is in by Act of Law shall Avow and re-enter without Attornment for the Conusor is in by the Statute of 20 H. 8. Harper The Heir of the Conusee shall Avow and re-enter before Attornment Dyer 13 H. 4. The Father leaseth for years rendring rent with clause of re-entry the Father demands the rent which is not paid the Father dyeth the Son cannot re-enter for the rent doth not belong unto him and therefore in the Case at Bar the Conusor cannot Avow for the rent before Attornment therefore not re-enter And in Case of Bargain and Sale the Bargainee is Assignee within the Statute but not the Conusor in this Case Temps Roign Eliz. XCIV 15 Eliz. Sir Francis Leak and Sir Walter Hollis Upon Attainder of Treason who shall seize the Goods for the Queen AT the Assizes the Opinion of Dyer and Stamford was demanded upon this matter One seized of Lands and Tenements and possessed of Goods within the Duchy of Lancaster was Attainted of High Treason and a great Question arose between Sir Francis Lake Kt. Bailiff of the Duchy and Sir Walter Hollis Sheriff which of them ought to seize for the Queen and their Opinion then was that the same did appertain to the Office of the Sheriff if in the Patent of the Sheriff there were not special words to the contrary XCV 15 Eliz. In the Common Pleas. TEnant at Will made a Lease from year to year Lease by Tenant at Will if a Disseisin Dyer conceived that it was not a Disseisin but the Lease was void and he said that the Book of 12 E. 4. 12. was not Law. For he who disseiseth a man ought to claim Inheritance in the land whereof the disseisin is done Harper conceived that the said Book of 12 E 4. 12. was good Law for a Lease at Will is a Lease at the will of both parties and therefore when the Lessee makes a Lease for years his will is determined and he will not hold at will. Manwood agreed with Dyer for if Tenant at Will lease for years rendring rent before that the Lessee for years entreth the Tenant at Will shall not have any rent for it was not a perfect contract otherwise it is where a man seized of Lands leaseth the same ut supra If one entreth into my land and occupieth the same of his own head claiming to hold the same at my will and afterwards I demand of him a certain rent for the occupation of my land he is now my Tenant at Will which all the Iustices granted Mich. 30 Eliz. In the Kings Bench. XCVI Cutter and Dixwels Case ACtion upon the Case for that the Defendant exhibited a Bill to the Iustices of Peace against the Plaintiff containing and complaining That the Plaintiff is an enemy to all quietness seeking by all means to disquiet his neighbours and hath used himself as a lawless person and having Process to serve upon one in the Parish scil J. S. did keep the Process and would not serve it but on the Sunday in the time of divine Service not having regard to her Majesties laws or the quiet of his neighbors Vpon which Bill the Iustices to whom it was exhibited awarded Process against the Plaintiff to find Sureties for his good behaviour by virtue of which he was taken and imprisoned It was the Opinion of all the Iustices in this Case that upon this Matter an Action upon the Case would not
that Reversion shall descend to all the daughters notwithstanding the half blood for the Estate for years which is made by Indenture by license of the Lord is a demise and a Lease according to the order of the Common Law and according to the nature of the demise the Possession shall be adjudged which possession cannot be said possession of the Copyholder for his possession is customary and the other is meer contrary therefore the possession of the one shall not be the possession of the other therefore there shall be no Possessio Fratris in this case Possesso Fratris But if one had been the Guardian by custom or the Lease had been made by Surrender there the Sister of the half blood should not inherit And Mead said the Case of the Guardian had been adjudged Mounson agreed And it was said that if a Copyhold doth descend to the Son he is not a Copyholder before admittance but he may take the profits and punish a Trespass before admittance CIV Pasc 19 Eliz. In the Common Pleas. A Parson let his Rectory for three years and covenanted that the Lessee shall have and enjoy it during the said term without expulsion or any thing done or to be done by the Lessor and is also bound in an Obligation to the Lessee to perform the said Covenant Forfeiture Quaere Afterwards for not reading of the Articles he was deprived ipso facto by the Statute of 13 Eliz. The Patron presented another who being inducted ousted the Lessee wherefore an Action was brought upon the Obligation It was the Opinion of all the Iustices That this matter is not any cause of Action for the Lessee was not ousted by any Act done by the Lessor but rather for Non feasans and so out of the compass of the Covenant aforesaid as if a man be bound that he shall not do any waste permissive waste is not within the danger of it Pasc 26 Eliz. In the Common Pleas. CV King and Cottons Case IN Ejectione firmae the Case was Lessee for years the Remainder for life the Remainder in Tail to Lessee for years Lessee for years made a Feoffment in Fee with warranty and dyed he in the Remainder for life dyed the Issue in Tail entred and made a Lease to the Plaintiff It was clearly resolved by the Court in this Case Entre Congeable That the entry of the Issue in Tail was lawful notwithstanding that the disseisin was done to another Estate than that which was to be bound by the warranty scil to the Estate for life Vide 50 E. 3. 12 13 46 E. 3. 6. Fitz. Garr 28. Pasc 26 Eliz. In the Common Pleas. CVI. Scot and Scots Case BArtholomew Scot brought a Writ of Accompt against Thomas Scot Accompt Thomas Scot sum ' fuit ad respondend Barth Scot quod reddat ei rationabilem computum suum de tempore quo fuit receptor denariorum c. And declared quod cum the said Thomas Scot fuit receptor denariorum c. recepisset so much by the hands of such a one c. Cumque idem Thomas habuisset recepiâ—â—et diversa bona and shewed what ad merchandizand c. Exception was taken to the Declaration because the Writ and Declaration is general against the Defendant as Receiver whereas for such goods as the Defendant had received ad merchandizand he ought to have been charged as Bayliff Quod Curia concessit Vide Book Entries 19. 46 E. 3. 9. and afterwards the Defendant traversed severally both the Charges whereupon several Issues were joyned and both found for the Plaintiff And as to the monies with the Receipt of which he was charged as Receiver the Plaintiff had Iudgment and as to the others Abatement of Writ which he received ad Merchandizandum the Writ abated And it was said by the Court That the Writ should have abated in the whole unless the several Issues had helped the matter because the Plaintiff might have had an Action for part in other manner Vide 9 H. 7. 4. by Brian 17 Eliz. In the Star-Chamber CVII Morgan and Coxes Case MOrgan exhibited a Bill of Perjury in the Star-Chamber against one Cox setting forth that whereas he was bound to his good behaviour by Recognizance acknowledged in the Kings bench and he in discharge of the said Recognizance had obtained a Writ De Fama gestu to enquire of his Conversation and therefore at the Sessions in the County of Devon where the said Morgan was dwelling the grand Iury charged with the said Matter the said Cox gave Evidence to the said grand Iury in maintenance and continuance of the said Recognizance and upon the Evidence given by Cox the said Bill was conceived It was moved by the Counsel of the Defendant That that Bill upon the matter did not lye for that the Evidence in the Bill for the Perjury was given for the Queen in maintenance of the Recognizance and that to the grand Iury which was charged for the Queen But as to that it was said by the Lord Chancellor and both the Chief Iustices that the Writ De fama gestu Brief de Fama gestu is an especial Writ at the Suit of the Party and not of the Queen and the Court cannot deny it to him who asketh it and the grand Iury as to that matter shall be accounted a special Iury c. Mich. 16 Eliz In the Common Pleas. CVIII Jackson and Darcys Case Tail barred by a Fine 3 Leon. 57. IN a Writ of Partition betwixt Jackson and Darcy the Case was Tenant in Tail the Remainder to the King levied a Fine had Issue and dyed it was adjudged that the Issue was barred and yet the Remainder to the Queen was not discontinued for by the Fine an Estate in Fee-simple determinable upon the Estate in Tail passed to the Conusee Trin. 17 Eliz. In the Common Pleas. CIX Stroads Case Tenures IN a Replevin the Case was Lands holden of a Subject came to the possession of the King by the Statute of 1 E. 6. of Chauntries The King granted the Lands over unto another it was holden in this Case that the Patentee should hold of the King according to his Patent and not of the ancient Lord but the Patentee should pay the rent by which the said Land was before holden as a Rent-seck distrainable of Common right to the Lord and his Heirs of whom the Land was before holden CX Mich. 19 Eliz. In the Common Pleas. A. Seized of Lands in Fee devised them to his Wife for life and after her decease Estate she to give the same to whom she will He had Issue two daughters and died Devises Leon. 121â— the wife granted the Reversion to a Stranger and committed waste and the two daughters brought an Action of waste In this Case it was holden that by that Devise the wife had but an Estate for life but she had also an authority
of the said Anne and of the right heirs of the same W. Wallshot Anne died and if this Lease should bind the Conusee was the question for it was agreed by all that the Issue in Tail was bound by the Fine Quaere the Case was only put but not resolved CXLV Trin. 30 Eliz. In the Common Pleas. UPon a recovery in a writ of Entry sur disseisin of two Acres of Lands an Habere facias seisinam was awarded the Sheriff as to one Acre returned Habere feci and as to the other tarde And that return was shewed to the Court Amercement of the Sheriff and all the Iustices but Periam held that the Sheriff should be amerced for that return being contrary repugnant in it self but Periam said it may be that the Acre of which no seisin is had was so distant from the other Acre whereof the seisin was had that the Sheriff in time could not make execution of both being so remote the one from the other To which it was answered That if the truth of the case was such Then might the Sheriff make Execution in one Acre in the name of both Acres And if upon a Capias ad satisfaciend against two the Sheriff retorn as to one a Cepi and as to the other Tarde he shall be amerced for his several retorns cannot stand together Mich. 29 Eliz. In the Common Pleas. CXLVI Lees and Lord Staffords Case COmpton made Conusans as Bayliff to Edward Lord Stafford and shewed that Henry Lord Stafford Father of the said Edward and Ursula his Wife were seized of the place where and let the same for years to Edward Lees the Plaintiff Robert Lees and Elizabeth Atwood upon Condition they nor any of them should alien the said Term nor any part of the same without the leave of the Lord or his Heirs Henry Lord Stafford and Ursula died and that the Reversion thereof descended to Edward Lord Stafford and shewed further that the said Edward Lees the Plaintiff had aliened To which the Plaintiff in bar of the Conusans said that the said Edward now Lord Stafford gave License that the said Edward Lees Robert or Elizabeth might alien and that was without Deed. It was conceived by some that this Licence was not of any force to dispense with the Condition because it is uncertain and doubtful in the disjunctive and it was resembled to the Case of 11 H. 7. 13. where a man gives a thing to J. S. or A. B. it is void for the incertainty But all the Court was to the contrary For here the thing which is given is but a Liberty and is not to be resembled to a Gift or Interest and the intent of the Lord Stafford was that one of them might alien but not all of them and afterward Iudgment was given for the Plaintiff Trin. 31 Eliz. In the Kings Bench. CXLVII Limver and Evories Case LImver as Administrator of one A. brought Debt against Evory and the case was F. made G. his Executor and G. made H. an Infant his Executor and died and during the minority Administration was granted to the Plaintiff who as Administrator of G brought an Action of Debt upon a Bond made to the first Testator and that was assigned for Error for the Plaintiff ought to bring his Action as Administrator of the first Testator vide 10 E. 4. 1. 26 H. 8. 7. and for that Cause the Iudgment was reversed Mich. 33 Eliz. In the Kings Bench. CXLVIII Knevit and Copes Case KKnevit brought Ejectione firmae against Cope and declared 3 Leon. 266. whereas John Hopkins by his Deed bearing date the 20 of May 32 Eliz. had let to him a House and two yard Lands containing forty Acres of Land Meadow and Pasture at Tithingham de forecomb in the Parish of Steep c. and upon Not Guilty the Visne was of Tithingham de Forecomb Exception was taken by Cook that the Declaration had not certainty for it is not shewed certain how much Meadow Land and how much Pasture is contained in the said two yard Lands and the Iury may find the Defendant Guilty as to so much Land but not to the residue also he hath not shewed in the Declaration when the Lease was made but only saith that by Indenture bearing date 20 May c. but doth not shew any day of delivery of the Indenture for then is the demise To which Exception it was said by the Iustices That the Declaration as to that was good enough for it shall be intended to be delivered at the day of the date Another Exception was taken to the Visne because that the Visne ought to have been from the Parish and not from Tithingham 11 H. 7. 23 24. Forcible Entry in the Manor of B. in B. the Visne shall not be from the Manor of B. but of B. Gawdy You shall never have a Visne of the Parish for divers Towns may be in one Parish but here the Visne is well of Tithingham for it may be that it is a Town Cook It is but a Vill conus from which a Visne cannot come CXLIX Trin. 28 Eliz. In the Common Pleas. Rot. 1027. MIlbourn brought an Action upon the Statute of Winchester against the Inhabitants within the Hundred of Dunmow in the County of Essex it was found by Special Verdict that the Plaintiff was robbed 23 Aprilis inter horam secundam matutinam tempore nocturno ante Lucem ejusdem diei and the Opinion of the Court was clear that the Plaintiff should be barred for the said Statute provided for ordinary Travel as in the Case of Archpool who came to his Inn post Sunset ante noctem in tempore diurno which is an usual time for travelling to come to his Inn but the Law doth not receive any in protection of this Stat. who travel in extraordinary hours for it is the folly of the Traveller to take his journy so out of season and the Inhabitants are not bound to leave their Houses and to attend the ways tempore nocturno and another reason was alledged by the Iustices because the said Statute appoints watch to be kept in the time of night à Festo Ascensionis usque ad Festum Sancti Michaelis and this Robbery was done the 23 of April so as it was out of that time and afterwards Iudgment was given against the Plaintiff Mich. 26 Eliz. In the Common Pleas. CL. Barkers Case Estrepement in Partition A Writ of Partition by Barker heir of Gertrude Marquess of Exceter who devised all her Lands to Blunt by which the third part was descended to the Plaintiff and he prayed a Writ of Estrepement and it was the Opinion of the Court that the Writ ought not to be granted for that the Plaintiff might have a more proper remedy upon the Statute cum duo tres c. and in a Writ of Partition no Land is demanded Trin. 29 Eliz. In the Kings Bench. CLI Megot and Davies Case
Mildmay had a Commission to make leases for 21 years of the Lands of the Queen because the Queen should not be troubled with it They could not make leases but in possession only by virtue of their Commission but all others which exceed 21 years and in Reversion passed by the hands of the Attorney of the Queen and not by them only by their Commission 2. Because he cannot make a lease upon a lease for by the same reason that he might make one future lease he might also make 20 leases in ruturo and so make void the Act It was Marshals Case upon the Statute of 1 Eliz of leases to be made by Bishops The Bishop of Canterbury made a lease for one and twenty years and afterwards he made another Lease for 21 years to begin at the end of the first Lease It was holden that the second Lease was not good Leases by spiritual persons as Bishops c. But in the great Case upon that point in the Exchequer Chamber there the second Lease was in possession and to begin presently and ran with the other and therefore it was adjudged a good Lease because the Land was not charged with more than with 21 years in the whole and if it had been so done here it had been good Wray said that if the second lease had been made two or three years before the expiration of the first lease then clearly it had been void but because but one two or three days or a month before he doubted if it should be void or not The Statute of 32 H. 8. Leases made for one and twenty years to be good from the day of the date thereof and one makes a lease to begin at a day to come and by two of the Iustices of the Common Pleas it is good but the two other Iustices held the contrary Clench Iustice There is no difference if it be by one Deed or several Deeds and therefore he held that if the Earl had made a lease for one and twenty years and within a year another it is a void Lease whether it be by one Deed or two Deeds for he exceeds his Authority And so in the principal Case If there had been no Proviso he could not have made any lease therefore the Proviso which gave him Authority ought precisely to be performed At another day it was argued by Daniel for the Lessee in Reversion to begin at a day to come and by him words only are not to be taken or considered in a Statute but the meaning of them and they are not to be severed Also Statute Law is to be expounded by the Common Law and by the Common Law if one give Authority to another to make leases of his Lands he may make leases in Reversion because an Authority shall be taken most beneficially for them for whom it was given So if one grant an Authority to make Estates of his Lands by that general word he may make leases for years or life or gifts in tail Feoffments or other Estates whatsoever If one gives a Commission to another to make leases for One and twenty years of his lands he may make a lease in Reversion and that Case was in the Duchy between Alcock and Hicks Leases 2. It is good by Statute Law For the Statute of Richard 2. which gives Authority to Cestuy que use to make leases he may thereby make leases in Reversion The Statute of 27 H. 8. which gives Authority to the chief Officer of the Court of Surveyors to make leases if it had stayed there he might have made leases in Reversion but the said Statute goes further and says Proviso that he shall not make a lease in Reversion vide 19 H. 8. Dyer 357. The Statute of 32 H. 8. of leases to be made by Husbands of the lands of their Wives by the general words of the said Statute they might make Leases in Reversion But the Statute goes further Proviso that there shall not be any former Lease in being above 21 years before the making of the said Leases In all Cases of Statutes which are with Provisoes the Law upon them shall be taken generally if not in such particulars which are restrained by the Proviso as here the Proviso goes to the ancient Rent to be reserved that the Countess shall have remedy against the Lessees for the said Rent c. therefore it is at large in all other points but in these As if the Wife be within age and she and her Husband joyn in a Lease yet this Lease is good by the Statute of 32 H. 8. because the Law is general and doth not restrain these Imperfections expresly So a Feoffment in Fee with warranty Proviso that he shall not Vouch yet that is a restraint as to the Voucher only and he is at large to Rebutt or have warrantia Chartae A Lease for life Proviso he shall not do voluntary waste he is at large to do other waste but otherwise it were if there were no Proviso Therefore a Proviso makes the words precedent to be expounded more liberally The words of the Statute of 33 H. 8. cap. 39. of Surveyors which gives authority to the chief Officer to devise set or let for 21 years he might have made a Lease for 21 years in Reversion if the Proviso had not been But the words of the Act in our Case are demise demises therefore shall be taken most liberally 3. As to the intent of the Act this Lease is within it for the intent is to be collected out of the words and shall not be drawn to any private intent against the words which should be done here for by such Exposition the Earl his Heirs Executors c. should be prejudiced and the Countess only should be benefited Also Remedy is given to the Countess by this Act against such Lessees that she should have the Rent by Debt or Distress as it she had been party or privy therefore it is reason via versa that they have remedy against her for their Leases Also he said that the same remedy should be for them as against the Earl himself if he had lived therefore they shall have remedy against her who might have had it against the Earl in his life Also the Statute is to be expounded according to the words where such Exposition is not rigorous nor mischievous Also private Laws are to be expounded by the Letter and strictly as the Deed of the party as 14 E. 4. 1. Br. Parliament 16. a particular Act was made that the Chancellor calling to him one of the Iustices might award a Subpoena between A. and B. and end the matter between them there by all the Iustices but Littleton he shall not award a Subpoena general but a Subpoena making mention of the Act for he shall pursue the particular Act strictly and a common Act for the common profit shall be construed largely Also a Statute shall not be construed largely by Equity to
Marchioness had devised all her Lands and had not left any thing to her Heir for which Case the Heir of the Marchioness entred into the third part of the Manor of Cauford of which the Lease upon which the Ejectione firmae was brought was made by the Lord Mountjoy to Insley and into the third part of the residue of the whole land now his meaning was That if the rent was not well passed by the name of the Manor then the same descended to the Heir which was sufficient for him For the Special Verdict found also That the rent was the third part of the value of the whole Land of the Marquess So that thereupon it may be collected That if a man hath three Manors some of them holden in Capite and of equal value and he deviseth two of them and suffereth the third to descend that the Devise is good for every part of the two Manors and the Heir shall not have the third part of each Manor Pasc 28 Eliz. In the Common Pleas. CLXIII Spring and Lawsons Case ONe recovered in an Ejectione firmae and afterwards the Defendant made a new Lease for years and he who recovered ousted him and he brought an Ejectione firmae and the other pleaded the former Recovery It was holden a good bar by all the Iustices but Windham and Periam and by them the same is no Estoppel for the Conclusion shall be Iudgment if Action and not Iudgment if he shall be answered And although that it be an Action personal and in the nature of a Trespass yet the Iudgment is quod habeat possessionem termini sui during which Term the Iudgment is in force it is not reason that he should be ousted by him against whom he recovered for so Suits should be infinite and by Rhodes an Entry pendent the Writ shall abate it CLXIV Hil. 29 Eliz. In the Kings Bench. AN Action of Covenant was brought against one who had been his Apprentice The Defendant pleaded that he was within age The Plaintiff maintained his Action by the Custom of London where one by Covenant may bind himself within age Exception was taken to it that that was a Departure For 18 R. 2. an Infant brought an Action against his Guardian in Socage who pleaded that the Plaintiff was within age The Plaintiff did maintain his Declaration That by the Custom of such a place an Infant of 18 years might bring accompt against his Guardian in Soccage and it was there holden to be no departure Wray Chief Iustice was of Opinion that it was no departure for he said It should be frivolous to shew the whole matter in his Declaration viz. That he was an Infant and that by the Custom he might make a Covenant which should bind him But Quaere of the Matter and of his Opinion for that many learned Lawyers doubted much of it And vide the Case in 19 R. 2. of the Guardian in Soccage Mich. 29 30 Eliz. In the Kings Bench. CLXV Savage and Knights Case ERror was brought upon a Iudgment given in Leicester in Debt Tanfeild assigned Error because in that Suit there was not any Plaint for in all Inferior Courts the Plaint is as the Original at the Common Law and without it no Process can Issue forth and here upon this Record nothing is entred but only that the Defendant Summonitus fuit c. and because the first entry ought to be A. B. Queritur versus C. Clench a Plaint ought to be before any Process issueth and the Summons which is entred here is not a Plaint and for that Cause the Iudgment was reversed It was said That after the Defendant appeared a Plaint was entred But it was answered That that did not help the matter for there ought to be a Plaint out of which Process shall issue as in the Soveraign Courts out of the Original Writs 28 Eliz. In the Common Pleas. CLXVI Grindal Bishop of Yorks Case GRindal Archbishop of York made a Lease for one and twenty years another Lease for years of the same Land being in being not expired by four years and dyed and in time of vacation the Dean and Chapter confirmed it Clench It is a good confirmation A Bishop makes a Lease for years reserving the ancient rent but where it was payable at four Feasts of the year it is now reserved payable once in the year the same is within the Letter of the Statute but not within the intent the same Law if the Rent before was usually reserved to be paid upon the Land now it is reserved to be paid at any far remote place And he said that although his lease was in possession yet not to take effect before the four years of the former Lease are expired cannot be said an Estate within the Statute of 1 Eliz. whereby any Estate may pass before the commencement of it for he to whom it was made had but a right to have the Land and he could not surrender And he held that the second Lessee should pay the rent as well by the Contract as by the Estoppel Periam At the Common Law a Bishop with the Confirmation of the Dean and Chapter might have made a Feoffment Gift in Tail and a Lease for any Term of years and he spake much What shall be said the Possessions of a Bishop And therefore if a Bishop disseiseth another of certain Lands and makes a Lease thereof under the Seal of his Bishoprick it shall be now his Seal and it shall be his election in what capacity he will take and then this Land is to be reputed parcel of the Possession of his Bishoprick Mich. 29 Eliz. In the Common Pleas. CLXVII Hoo and Hoes Case JOhn Hoo brought a Writ of Intrusion against Richard Hoo depending which Writ the Demandant prayed Estrepement and had it and declared upon it scil That the Tenant after the Prohibition fecit Vastum Estrepementum in prosternendo c. To which the Tenant pleaded Not Guilty But the Plea was not allowed by the Court for there is no Issue in this Case but he might to plead Quod non fecit vastum c. after the Prohibition 29 Eliz. In the Common Pleas. CLXVIII Clinton and Bridges Case DEbt The Condition was for performance of an Award which was to pay 10 l. to the Plaintiff and to do divers other things The Defendant pleaded Quod perimplevit Arbitrium and shewed how the Plaintiff assigned for a Breach that the Defendant had not paid the 10 l. The Defendant rejoyned that he rendred it to the Plaintiff and he refused it It was the Opinion of Dyer that the same is a Departure for in the Bar the Defendant pleads that he hath performed the Award and shews how and now in the Rejoynder a Tender and Refusal which is not a performance of the Award although it is not any Breach of it 29 Eliz. In the Exchequer CLXIX The Bishop of L's Case Tenures THe Case of the Bishop of
the Covenant shall enure to defeat and determine the Warranty And afterward Iudgment was given against the Plaintiff CCLXXIII Sir Francis Englefields Case Vide this Case Reported by Cook in Rep. 7. and by Popham 18. THe Case to recite at large was this Sir Francis Englefield Kt. being seized in Fee of the Manor of Englefield in the County of Berks and of divers other Lands in the first year of Queen Eliz. departed out of the Realm by Licence of the Queen for a time and remained out of the Realm in the parts beyond the Seas above the time of his Licence whereby the Queen by her Warranty under her Privy Seal required him to return upon which he was warned but did not come whereupon the Queen seized his Lands for his contempt After which the Statute of Fugitives was made 13 Eliz. upon which by Commissions found upon this Statute all his Lands were newly seized and afterwards 17 Eliz. by Indenture made between him and his Nephew and Sealed by the said Sir Francis at Rome the said Sir Francis covenanted with his said Nephew upon consideration of Advancement of his Nephew and after consideration to raise an use that he and his Heirs and all others seized of the said Manor c. shall hereafter stand and be seized of them to the use of himself for the term of his life without impeachment of Waste and afterwards to the use of his Nephew and of the Heirs Males of his Body and for default of such Issue to the use of the right Heirs and Assigns of the Nephew for ever with a Proviso that if the said Sir Francis shall have any Issue Male of his Body that then all the said Vses and Limitations shall be void and that the said Manors c. shall be as before Afterwards the said Sir Francis was attainted of Treason supposed to be committed by him 18 Eliz. at L. in partibus transmarinis and the Attainder was first by Outlary and afterwards by Act of Parliament 28 Eliz. by which the Forfeiture of the said Condition was given to the Queen and at the same Parliament it was Enacted That all and every Person and Persons which had or claimed to have any Estate of Inheritance Lease or Rent they not entred of Record or certified into the Court of Exchequer of into or out of any Manors Lands c. by or under any Grant Assurance or Conveyance whatsoever had or made at any time after the beginning of her Majesty by any persons attainted of any Treasons mentioned in the said Act after the 8 day of Feb. 18 Eliz. or within two years next ensuing the last day of the Session of the said Parliament shall openly shew in the Court of the said Exchequer or cause to be openly shewn the same his or their Grant Conveyance or Assurance and there in the Term time in open Court the same shall offer and Exhibit upon his or their Oath affirming that they have not the same nor can come by it or that it was never put in writing then the Effect thereof to be entred and inrolled of Record or else every such Assurance should be void and of none Effect to all intents and purposes saving to every person and persons other than the parties and privies to such Conveyance and such as shall not Exhibit the said Conveyance according to the true meaning of this Act all such rights c. Whereupon the said Francis the Nephew the 20 day of November 30 Eliz. in his own person affirmed upon his Oath that he had not the said Conveyance nor knew not how to come by it but delivered the Effect of the Assurance omitting the time when it was made otherwise than that it was made after the beginning of the Queens Reign and before the Treason committed by Sir Francis and before the Statute of 13 Eliz. against Fugitives and omitting also the last clause of the tender of the King and this he offered openly in the Court of the Exchequer the same day After which the Queen being moved with the said Condition made a Warrant by Letters Patents under the Great Seal dated 17 Martii 13 Eliz. to Rich. Broughton and Henry Bourcher Esquires for her and in her place and stead to deliver or tender to the said Francis the Nephew a Ring of Gold to the intent to make void the uses and limitations limited by the said Indenture and to return their proceedings upon it into the Court of Exchequer whereupon they made a tender of a Ring of Gold to the said Francis the Nephew the 18 day of November 31 Eliz. which he refused to receive And the two years after the said Session of Parliament was the 13 day of March 31 Eliz. and the said Broughton and Bourcher returned all this that they had done as before with their Commission out of the Exchequer And this Case being a great case and consisting of many doubts and questions was often argued And this Term scil 33 Eliz. It was argued by Moor of Counsel on the part of Francis Englefield and he said when Sir Francis Englefield covenanted to stand seized to the use of himself for life c. this was not any new use but part of the ancient use which was in Sir Francis before for there was no Consideration to raise a new use to himself for a Consideration is a cause or an occasion meritorial requiring a mutual recompence in fait or in Law Dyer 16 Eliz 33. b. mutual 1. of each part and here this ancient use remaineth For Sir Francis cannot simul semel agree and suffer and here is a bare Covenant without any Consideration on the part of Sir Francis which see Dr. and Student 100. cited by Br. Feoffments to Uses 46. A man cannot limit an use to himself to be a new use upon an Estate executed as upon a Feoffment but it shall be the ancient use much less upon a Covenant And that was Milfords Case Pasch 31 Eliz. Rot. 154 in the Kings Bench where an use limited to the right Heirs of the Feoffor was holden the ancient use quod vide also in the case of the Earl of Bedford and there is no difference between our case and the said cases unless in the said cases the use is limited in the end and in our case in the beginning of the Conveyance But perhaps it will be Objected That the particular Estate shall be good for necessity for to support the Estate limited in the Remainder which is limited upon good consideration for otherwise the Remainder shall be distrained That is not any reason for that conceit in Bayntons case in Plow Com. 307. 8 Eliz. hath been over-voted to be no Law in the case of the Lord Paget in this Court very lately And he said That the condition conceived in the Proviso is not given to the King. By the Common Law in case of Escheat the party comes in the Post but a Condition runs in privity And although
he could not put in a true Inventory and upon that the Plaintiff prayed a Prohibition surmising that he himself claimed Property in the said Goods and the Ecclesiastical Court would not allow of it and the Trial of the said Goods did belong to the Common Law And a Prohibition was granted Trin. 33 Eliz. In the Kings Bench. CCLXII Mountjoyes and Andrews Case IN Scire Facias upon a Iudgment in Debt The Defendant pleaded that heretofore a Fieri Facias at the Suit of the now Plaintiff issued directed to the Sheriff of Leiceâ—â—er by force of which the said Sheriff took divers Sheep of the Defendant Execution adhuc doth detain them Retorn of Writ It was holden by the Court a good Plea although he doth not say that the Writ was returned for the Execution is lawful notwithstanding that and the Plaintiff hath remedy against the Sheriff CCLXIII Vide this Case reported by Cook 1 Part by the name of Capells Case THe Case between Hunt and Gately in the Exchequer Chamber was now argued by Fenne That the Rent granted by him in the Remainder upon an Estate tail is good and shall bind the Land after the Estate tail determined notwithstanding the common Recovery suffered by the Tenant in tail in possession Before the Statute of Westm 2. of Donis Condic c. no Remainder could be limited upon an Estate tail for that which remained in the Donor was but a possibility and therefore then a Formedon in Remainder did not lye But the said Statute which provided a Formedon in the Descender provided also by Equity a Formedon in the Remainder for a Formedon in the Reverter as appeareth by the said Statute was in use in Cancellaria And now here in our case is a Remainder lawfully vested in the Grantor which he may dispose of as he sees good and therefore when he grants a Rent-charge out of it the same is a thing vested in the Grantee and by no subsequent act can be divested and although the Estate which was charged be now charged by the Recovery yet it is the same Land which was charged and therefore the charge shall continue as if a gift in tail be rendring Rent and the Donee levieth a Fine yet the Rent remaineth and the Donor shall distrain 48 E. 3. 3 9. So here If after the grant of this Rent Tenant in tail in possession levies a Fine by which the Remainder which was charged is discontinued and afterwards the Conusor dyes without Issue the Grantee shall distrain upon such possession which passed by the Fine As if A. lease to B. for life and afterwards grants a Rent out of the same Land to C. B. aliens in Fee and dyes although that A. cannot re-enter but suffers the said torcious Estate gained de novo by wrong to continue yet B upon such possession shall distrain for the Rent for it is the same Land which was charged and by Law a thing in abeyance may be charged As if a Parson grant a Rent-charge to begin after his death and the Patron and Ordinary confirm it it shall bind although the Grant doth not take effect in the life of the Grantor but when the Freehold is in abeyance So if the Patron and Ordinary in the time of Vacation grant a Rent-charge out of the Parsonage the same is good and shall bind the Successor and yet at the time of the Grant the Freehold of the thing granted is in abeyance Vide 5 E. 6. Dyer 69. That a Rent which is not in esse shall be bound by a Iudgment 22 E. 3. 19. 5 E. 3. Fitz. Dower 343. By Bracton Jus concerning a real thing is threefold 1. Jus terrae scil the Ownership of the Land. 2. Jus in terra as a Rent Common c. 3. Jus ad terram scil Right permanent And by this Common Recovery in our case Jus terrae shall be bound but not Jus in terra And he said That if Land be given to A. in tail the Remainder to the Kings Villain in Fee and before any claim by the King A. suffers a common Recovery and dyes without Issue this Recovery shall not bind the King. And as to the Case of 26 H. 8. 2. which hath been Objected against the falsifying of the Recovery where a Parson made a Lease for years and afterwards in a Quare Impedit brought against him and the Patron they pleaded faintly to the intent to make the Lessee lose his Term now such a Lessee cannot falsifie in such case the Parson by another way might have defeated the Lease as by Resignation but in our case the Grantor of this Rent by no way might defeat his Grant And he said a common recovery did not bind Dower therefore nor this rent And if Tenant in tail in possession grants such a rent and after suffers a common recovery the rent shall stand why not also in the case of a remainder for upon them both as well the remainder as the possession the recovery operatur And recoveries shall always bind the possession and no farther and shall not disprove the right but the possession And the recovery by it self doth not bind the possession but in respect of the Voucher without which no recovery shall bar and that in respect of the recompence which the Law presumes c. which recompence cannot extend to this Rent-charge and then there is no reason that he to whom it was granted should be prejudiced by this recovery and always in case of recompence the Law is very precise As if I grant unto you an Annuity of 30 l. per Annum until you be presented to a competent Benefice a litigious Benefice is not a recompence intended nor shall determine the Annuity nor a Benefice of 15 l. If two make an exchange for their Lives and one of them dyeth the exchange is not determined but the Heir of him who dyeth shall enter and retain the Land as long as the other shall live Ad quod Manwod Chief Baron subsidebat And there is a great difference between a Lease for years and a Rent-charge for at the Common Law upon such Recovery the Lessee for years was bound contrary of a Rent-charge for it was unreasonable that a thing not demanded by the recovery should be bound by it especially because that the Land rendred in value shall not be charged with the rent Walmesley Serjeant contrary A remainder upon an Estate tail is debile fundamentum and cannot uphold with assurance a Rent-charge against a common recovery and it cannot be found in any Book but in 5 E. 4. 2. That a remainder upon an estate-Estate-tail expectant may be charged for an estate-Estate-tail is in Law presumed to be perpetual and therefore what Lands are entailed by Fee the words of the Fine are Sibi haeredibus de Corpore suo exeuntibus imperpetuum And it is the common learning in our Books that every Estate of Inheritance be it Fee-simple or Fee-tail shall be
intended to be continued till the contrary be shewed And the Authority which the Owner of a Remainder hath upon it is but conditional scil If the Tenant in tail in possession doth not countermand it by a recovery c. And also the possession upon which the Avowry is made is not the same possession which was charged but is a Foreign possession gained by the recovery and therefore before the proper possession be recontinued there can be no Distress nor Avowry for the Land is not reduced in the privity of Estate which was charged and if he in Reversion upon such Estate tail would grant his reversion rendring rent and afterwards the Tenant in tail in possession suffers a common recovery and dyeth without Issue Now the reversion being destroyed the rent is gone And he put this Case Tenant in tail grants a Rent-charge to begin after his death without Issue and afterwards suffers a common recovery and dyes without Issue it is a good rent and shall bind the Recoveror c. At another day in the Exchequer Chamber the Case was argued again by Snagg Serjeant for the Defendant and he was very long in proving that a remainder might be charged as in this case But the Court discharged him of that and directed him to argue to this Point If this recovery did discharge the rent c. wherefore he argued That these common recoveries are false and feigned things false in the Title and covenous in the Proceedings and all in prejudice of a third person And Vide 14 H. 8.3 such common recoveries are holden fraudulent and therefore by fraud and covin being so odious in our Law we ought not to give and allow unto them so much force as is due to unfeigned recoveries for these common recoveries do not go in disaffirmance of the former possession nor in any eviction of it but for the most part in affirmance and the Estate gained by this recovery is under the Estate of him against whom the recovery was had and he is in by him for common Recoveries are no other but common Assurances And in our Case the imagined Recompence cannot come to him who hath by the recovery lost his rent and therefore it is not reason that the recovery should bind as to this rent Vide 12 E. 4. 19 20. Tenant in tail discontinueth and takes back an Estate to him in Fee and afterwards a common recovery is had against him it shall not bind the tail for the presumed recompence shall go to the Estate which he hath lost scil the Estate in Fee and not to the Estate tail whereof at the time of the recovery he was seized So in our Case the Land which by Fiction of Law is to be yielded in value upon this Voucher shall not extend to the benefit or recompence of the Grantee of the Rent-charge but only to H. who hath lost his remainder and his new remainder which comes in lieu of the former shall not be charged with this rent And therefore the remainder which by this recovery is drawn out of H. transit cum suo onere cum acciderit shall answer and shall yield the rent according to the purport of the Grant. As 33 H. 6. 4 5. two Ioyntenants are The one grants a Rent-charge and afterwards releases to his Companion he shall hold the Land charged notwithstanding that he be now fully in by the Feoffor And if there be Lord and Tenant and the Tenant grants a Rent-charge in Fee and dyeth without Heir so as the Land goes to the Lord in point of Escheat yet the Lord shall hold the Land charged And as to the Statute of Fraudulent Conveyances 27 Eliz. cap. 4. the same cannot extend to this Grant for here this Grant is upon consideration of Nature made to his own Son for his advancement Popham Attorney General to the contrary And that neither the Grantee of this Rent nor he who makes Conusans in his right shall falsifie this recovery And he put a difference where the party who leaseth or chargeth a remainder is bound by the recovery voluntarily and where involuntarily for where the recovery is suffered voluntarily there the Grantee or Lessee shall not be bound by that recovery but they shall falsifie But where as our Case is there the Party who chargeth or leaseth is bound involuntarily by such recovery there all Interests are bound and the charge is subject to the same mischief as the remainder it self out of which it is issuing Vide 7 H. 7. 12. He in the remainder in Fee shall not satisfie a recovery had against the Tenant for life but he is put to his Writ of Entry ad terminum qui praeteriit in which he shall falsifie and not by Entry much less he in the remainder upon an Estate tail shall not falsifie and falsifier lyes properly where the Party who grants or leaseth against his Grant or Lease practiseth by such recovery to avoid or defeat his own Estate and by consequence the Interest of his Grantee or Lessee But in our Case there is not any such matter for the Grantor H. was not party or privy to this recovery nor Tenant nor Vouchee and therefore no Covin and then no Voucher and all the Cases in our Law of falsifying of recoveries are upon such matter And he put the Case of 19 E. 2. Fitz. Title Assise 82. where the Conusee of a Statute Merchant having sued Execution one who had no right impleaded the Conusor and by Covin recovered against him and by Execution upon that recovery ousted the Conusee it was holden he should have an Assise and falsifie for here he who party to the recovery Donee in tail the remainder over in Fee upon condition suffers a common recovery the Condition is gone And as to the Statute of 21 H. 8. cap. 15. Falsifying is not given in our Case by the said Statute the words of which are Where divers Men have leased their Land to Farm and afterwards after such Leases made the Lessors their Heirs and Assigns have suffered Recoveries Within which words our Case is not for he against whom the recovery was had was not our Grantor his Heir or Assign So if there be Tenant in tail the remainder over to another in Fee he in the remainder makes a Lease for years and afterwards Tenant in tail in possession suffers a common recovery the Lessee shall not falsifie for that Lease was not made by him against whom the recovery was had And it is clear that by the Common Law the Grantee of a Rent-charge cannot falsifie against the Grantor his Heirs or Assigns But it was a doubt as it appeareth 7 H. 7.11 If upon a faint pleader the Lessee for years might be received for the Statute of Gloucester extends but to default or re-disseisin but now by the Statute of 21 H. 8. cap. 11. in three Cases Default Reddition and Faint pleading such Resceipt lyes which proves that in case of rent
he is not to have Damages because the Waste was not to his disinheresin and the Land he shall not recover against the Defendant for the Term is not determined and such was the Opinion of the Court. As to the matter in â—aw Shuttleworth said That the Action of Waste ought to be brought against the Lessee himself and not against the Assignee for when he grants over his Term excepting the Trees it is a good Exception for when the Land upon which the Trees grow is leased to another the Trees pass by the Lease as well as the Land and the property of them is in the Lessee during the Term by which when he grants his Land he may well except them as the first Lessor might have done and if the Lessee for years cutteth down the Trees the Lessor cannot take them for that he hath other sufficient remedy scil an Action of Waste Fenner and Walmsley contrary And they conceived that the Lessee had but a special Property in the Trees scil for Fire-bote Plough bote House-bote c. But if he demiseth the Land or granteth his Interest in it he cannot except the Trees nor his special Property in them no more than he who hath Common appendant may grant the Land excepting the Common And in such case the general Property in the Trees remains in the Lessor as parcel of his Inheritance And this appeareth by many cases 27 H. 8. 13. Lessee for life and he in the remainder joyn in a lease for life the Lessee commits Waste the Tenant for life and he in the remainder joyn in an Action of Waste the Tenant for life shall recover the place wasted and he in the reversion all the damages Vide 2 H. 7. 10 H. 7. cited before That the Lessor may licence the Lessee to cut the Trees which proves that the Property is in him And Vide 40 Ass 22. the Lessor shall have the Windfalls And as to that which hath been said That by the Exception of the Trees the Soil it self is also excepted that is true as to the Trees for nourishment and not otherwise for if the Lessor cutteth down the Trees or roots them up he shall not after meddle with the Land where c. but the Soil shall be entirely to the Lessee The Lessor during the Term may grant the Trees so cannot the Lessee therefore the greater and better Property in the Trees is in the Lessor and not in the Lessee and the Trees proprie loquendo are not parcel of the thing demised If this Exception of the Trees or Woods should hold place Inconvenience would follow for as it is holden in 15 H. 7. 11. If the Termor of Wood commits Waste in one corner of the Wood he should not lose all the Wood but that place only But if in the said Wood there are divers Plats of Land in divers places of the Wood if the Termor commits Waste in that Wood he shall lose all the said Plats although he hath not done waste in them for they are parcel of the Wood. Vide Temps E. 1. Fitz. Waste 127. and Vide ibidem Waste 112. 8 E. 2. Waste done in parcel of an House the whole House shall be recovered Vide also 30 E. 3. Fitz. Amendment 67. and 4 E. 3. Waste 10. Now if that be Law and the Exception be good how shall the place wasted be recovered here and against whom It seemed to the Lord Anderson That the Exception was void and that the Action was brought against the Assignee and he said it was a knavish and foolish Demise and if it should be effectual in Law some Mischiefs would follow which he would not remember Windham was of the same Opinion and that the Lessee could not assign his Estate with such Exception for he hath but a special Interest in the Trees scil for Fire-bote Plough-bote c. which should go with the Land. Periam conceived That as to such special Property that none could have it but he who hath the Land and therefore the Exception is void but as to the Fruit-trees such an Exception might be good and although that the Trees are not expresly demised yet quodam modo and after a sort they may be said demised as annexed to the Land and if waste be brought against him who made the Exception scil the Lessee he cannot say they were not let to him and therefore he doubted of the Exception And Rhodes doubted also of the Exception and Anderson said that he was clear of opinion that the Lessor should have the Windfalls and afterwards the Case was adjorned to be further argued c. Temps Roign Eliz. CCLXX. Audleys Case Uses THe Lord Audley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerset and afterwards by Indenture reciting the said Feoffment and the date of it and also that it was to the intent that his Feoffees should perform his Will as followeth in effect viz My Will is that my said Feoffees shall stand seized to the use that the said Hoddy shall receive of the said Lands â—00 l which he had lent to the said Lord Audley and also to stand seized to pay all his Debts upon Bills signed with his hand and after â—he Debts paid that the Feoffees shall make an Estate of the said Lands to him the said Lord Audley and Joan his wife and to the heirs of their Bodies c. with divers Remainders over The said Lord Audley had Issue by the said Joan and also having Issue by a former wife a daughter the Feoffees never made any Estate to the said Lord and his wife and by the opinion of divers Iustices and Sages of the Law upon this matter no use was changed for it is not a last Will but an Intent and although that the Feoffees shall be seized to the use of the Feoffor and his Heirs because no consideration was wherefore they should be seized to their own uses yet the same could not make a new use to the said Lord and his wife in tail without conveying an Estate c. for the wife is a stranger to the Land and the same cannot be a Will or Testament for the Estate mentioned in the said writing ought to be made to the said Lord and his wife who could not take by his own Will and this matter was depending in the Chancery And the advise of the Iustices being there required they delivered their Opinions That by that writing no use was changed nor any use vested in the said Lord and his wife and a Decree was made accordingly until proof was made that such an Estate was made c. Trin. 29 Eliz. In the Common Pleas. CCLXXI. Walgrave and Somersets Case IN Trespass by Walgrave against Somerset the Case was That tenant at will cut down Trees and the Lessor brought Trespass vi armis And the Court was clear of opinion that the Action was well maintainable modo forma and Iudgment
she might disagree CCCXXXI Mich. 21 Eliz. In the Common Pleas. A. B. and C. three Brothers A. hath issue and dyeth the middle Brother Purchaseth Land and deviseth the same to his Son in Tail and if he die without Issue that the Land shall remain to the King and Lineage of the Father sc of the middle Brother and if the Son of the eldest Son or the youngest Brother should have the Land was the Question and it was the opinion of the Lord Dyer That the Son of the eldest Brother should have it CCCXXXII Mich. 21 Eliz. In the Common Pleas. A Lease for life was made to B the Remainder to C. and D. in Tail It was holden that in this case C. and D. cannot disagree to that Remainder without matter of Record for they are Tenants in Common but if the Remainder had been limited to them in Fee so as they took joyntly it had been otherwise for then by the disagreement of the one the other shall take the whole Land. Mich. 32 Eliz. In the Kings Bench. CCCXXXIII Waite and Coopers Case IN Ejectione firmae between Waite and Cooper It was found by Verdict That Cranmer late Archbishop of Canterbury was seized of the Manor and Borough of Southwark in the right of his Bishoprick and that the Prior of Morton was seized of the House in which the Ejectment is supposed and held the same of the said Archbishop as of his said Manor and Borough after which 30 H. 8. the said Archbishop gave to the King the said Manor and Borough with confirmation of the Dean and Chapter and that the same year the said Prior surrendred by which the said King was seized as well of the said Manor and Borough as of the said House and afterwards the King by his Letters Patents gave the said House and other Lands in Middlesex and Essex to Curson and Pope in Fee tenend in Libero Burgagio per fidelitatem tantum non in Capite pro omnibus serviciis demandis And afterwards King Edw. 6. gave the said Manor and Borough to the Mayor and Commonalty of London Curson and Pope covey the said House to Welsh in Fee who dyed without Heir All the Question was What Tenure is here reserved upon the Words and Grant made by King Hen. 8. to Curson and Pope It was said It could not be a Tenure in Burgage because here is not any Rent reserved which see by Littleton 162 163 164. And the Lord Anderson at the first very strongly insisted upon that Another matter was because here is reserved for all the Lands and Tenements but one Tenure so that if the Court should adjudge the Tenure reserved to be Burgage then Lands at the Common Law out of Boroughs should be holden in Burgage Also a Tenure in Burgage cannot be created without these words ut de Burgagio And to that purpose Shute Iustice agreed Vide Br. Tenures 94. Mich. 29 Eliz. In the Kings Bench. CCCXXXIV Fullers Case NOte It is holden by the whole Court in Fullers case That if one give 300 l. to another to have an Annuity of 50 l. assured to him for 100 years if he his Wife and four of his Children so long shall live That this is not within the Statute of Vsury So if there had not been any Condition but care is to be taken that there be no Communication of borrowing of any Money before Trin. 30 Eliz. In the Kings Bench. CCCXXXV Goore and Winkfields Case 3 Leon. 223. DEbt upon an Obligation by Goore against Winkfield the Obligation was written in this Form Know all by these Presents That I H. Winkfield am bound to William Goore in the Sum of c. for the payment of which Sum I give full power and authority to the said Goore to keep the said Sum upon the Profits of the Bayliwick of Swinstall from year to year until the same be paid To which the Defendant pleaded That the Plaintiff had levied parcel of the said Sum c. and did not shew how much and therefore the pleading was holden not good And it was clearly agreed by the whole Court That the Plaintiff was at Liberty either to bring his Action upon the said Obligation or to levy the Debt according to the Clause aforesaid Pasc 26 Eliz. In the Kings Bench. CCCXXXVI Powley and Siers Case POwley brought Debt against Sier Executor of the Will of one A. The Defendant demanded Iudgment of the Writ For he said That one B. was Executor of the said A. and that the said B. constituted the said Defendant his Executor so as the Writ ought to have been brought against the Defendant as Executor of an Executor and not as immediate Executor of the said A. The Plaintiff replyed That the said B. before any probate of the Will or any Administration dyed and so maintained his Writ upon which the Defendant demurred Wray was for the Writ for although here be not any Probate of the Will of A. or any other Administration yet when B. makes his Will and the Defendant his Executor it is an acceptation in Law of the Administration and Execution of the first Will. Gawdy and Ayliff Iustices that the Writ was not good Vide 23 Eliz. Dyer 372. Mich. 19 Eliz. In the Kings Bench. CCCXXXVII Taylors Case TAylor was Outlawed in Debt where a Supersedeas upon Record was delivered to the Sheriff before the award of the Exigent It was holden that the Party should avoid the same by Plea Then it was moved If the Plea should be pleaded by Attorney or in Person To which it was said by the Iustices That where matter in fact is pleaded in avoiding of an Outlawry he ought to plead it in Person but matter of Record by Attorney And so Ford Prothonotary said it was agreed in the Case of Sir Thomas Chamberlain 7 Eliz. and so it ought to be in the principal Case here CCCXXXVIII Mich. 18 Eliz. In the Kings Bench. NOte It was agreed for Law in the Kings Bench if Lessee for years grant all his Estate and Interest to A rendring rent by Indenture and for default of payment a re-entry And the Grantor demandeth the rent and A. demands an Acquittance but the Lessee for years refuseth in such case A. may refuse to pay such rent for the rent is to be paid in this nature without an Acquittance but contrary if Lessee for years had leased parcel of his Estate rendring Rent with Clause of Re-entry c. CCCXXXIX Mich. 18 Eliz. In the Kings Bench. THe King seized of a Manor to which an Advowson is appendant a Stranger presented and his Clerk in by 6 Months It was holden that in such case the Grantee may present for the Advowson was always appendant and the Inheritance thereof passed to the Grantee for it was not made disappendant by the usurpation as in the case of a common person for the King cannot be put out of possession But the Patentee shall not have Quare Impedit
of the first disturbance for that presentment did not pass to him being a thing in Action without mention thereof in his Grant. And if the Patentee brings a Quare Impedit of a second avoidance he shall make his presentment by the presentment of the King not making mention of the Vsurpation Yet if a Bishop present for Lops in the case of a common person he ought to make mention of it for that is a title to the Patron CCCXL Trin. 28 Eliz. In the Kings Bench adjudged NOte In the Case of one Manning it was adjudged That where an Infant Executor sold the Goods of his Testator for a lesser price than they were worth and afterwards brought an Action of Detinue against the Vendee upon that Detinue in retardatione executionis Testamenti that the said Sale was good and should bind the Executor notwithstanding his Nonage 28 Eliz. In the Chancery CCCXLI The Lord Awdleys Case THe Lord Awdley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerset and afterwards by Indenture reciting the said Feoffment and the date of it and also that it was to the intent that his Feoffees should perform his Will as followeth in effect viz. My Will is That my said Feoffees shall stand seized to the use that the said Hoddy shall receive of the profits of the Lands 100 l. which he had sent to the said Lord Awdley and also stand seized to pay all his debts upon Bills signed with his hand and after the debts paid that the said Feoffees shall make Estate of the said Lands unto him the said Lord Awdley and Jone his Wife and to the Heirs of their two Bodies with divers Remainders over The said Lord had Issue by the said Jone and also had Issue by a former Wife a daughter the Feoffees never made any Estate to the said Lord and his Wife And by the Opinion of divers Iustices and Sages of the Laws that upon that matter no use was changed for it is not any last Will but an Intent And although that the Feoffees shall be seized to the use of the Feoffor and his Heirs because that no consideration was by which they should be seized to their own uses yet the same cannot make any Vse unto the said Lord and his Wife in tail without containing an Estate for the Wife is a Stranger to the Land And also it cannot be a Will for the Estate mentioned in the said writing ought to have been made to the said Lord and his Wife who cannot take the same by his Will. This matter depended in the Chancery And the advice of the Iustices being there required they delivered their Opinions That by the said Writing no Vse was changed nor any Estate vested in the said Lord and his Wife And a Decree was there made accordingly until proof be made that such an Estate was made CCCXLII Mich. 26 Eliz. In the Kings Bench. THe Case was in the Kings Bench in Debt It was found by Special Verdict That the Testator being possessed of divers Goods in London where he dyed and also at the time of his death the Queen being indebted unto him in the Sum of 4 l. 10 s. she then residing at Whitehall the Archbishop as Metropolitan granted licence of Administration to the Queen and the Bishop of London afterwards granted licence of Administration to J.S. The Court sent to the Civilians to appear in Court and to deliver their Opinions in this case And thereupon Lloyd Doctor of Law appeared and argued to this effect viz. That in ancient times in such cases the several Ordinaries committed several Administrations for the Goods in their Diocess respecive In which case the mischief was very great for the Creditor was driven to bring several Actions of the Administrators of the several Ordinaries Vide H. 7. 13 R. 2. Administrators 21. But afterwards upon a Decree upon a Composition in such cases the Metropolitan committed the Administration He further argued That debts cannot be said Bona Notabilia for they cannot be said within or without any County or Diocess and are things transitory and therefore called aes alienum And he said That the Administration granted by the Archbishop was void for as Archbishop he had not to intermeddle within the Diocess of another but as Legatus Papae And in the time of Hen. 2. Becket Archbishop of Canterbury was stiled Legatus Natus but now that power Legantine is determined and therefore the authority to commit Licences of Administration in another Diocess but in case of Bona Notabilia is determined And he said That by the Civil Law Jones Rep. 225. if a man deviseth all his Goods in such a County by that debts do not pass and yet by especial words a man may devise his debts Awbrey Doctor argued to the contrary and he confessed that in ancient times every Ordinary in such cases committed licences of Administration But he denied that the Prerogative which is now practised in such cases by the Metropolitan was given upon any Composition but that it began by Prescription If a man in his Iourney dyed in another Diocess notwithstanding that he had out with him but his necessary and ordinary Apparel in such case the Metropolitan committed the Administration and he said That as he conceived debts are Bona Notabilia secundum fictionem Legis they are local and he said to make Bona Notabilia it is sufficient if the Intestate have 3 l. in one Diocess and 2 l. in another Diocess But he said That posito that Bona Notabilia are not in the case yet the Administration granted by the Metropolitan is not void until it be revoked For although that the Metropolitan on the right of his Bishoprick hath not to intermeddle in another Diocess yet in this case because the Archbishop of Canterbury is a Patriarch For in Christendom there are four great Patriarchs and eight lesser Patriarchs whereof the Archbishop of Canterbury is one and by reason thereof he hath general Iurisdiction through all England Ireland c. But now by the Statute his Authority is restrained For he cannot cite any other out of other Diocess by any Process But notwithstanding he may do many great Acts by himself or his Chancellor in every Diocess and he argued very much upon the Prerogative of the Archbishop of Canterbury The Iustices did not then deliver any Opinion in this case Quaere If Letters of Administration of the Goods of a common person be committed to the Queen if good The case was adjourned Vide Cook 5 part Ucre and Jeffreys Case and Cook 8 part in Sir John Needhams Case for the Resolution of this Case CCCXLIII Pasc 17 Eliz. In the Common Pleas. A Man made a Lease for life and afterwards made a Lease to another for years The Ordinary committed Licences of Administration to A. the Tenant for life and A. joyned in the purchase of the Fee-simple of the Land demised It was
But all the Court held the contrary and that the Copy should bind the Feoffee and the ceremony of admittance was not necessary For otherwise every Copyholder in England might be defeated by the sole act of the Lord viz. his Feoffment But the Lord by his own act which shall be accounted his folly hath lost his advantages viz. Fines Heriots and such other Casualties Mich. 29 Eliz. In the Common Pleas. CCCLXV Boxe and Mounslowes Case THomas Boxe brought an Action upon the Case against John Mounslowe That the Defendant slandred him in saying That the said Thomas Boxe is a perjured Knave and that he would prove the said Thomas Boxe had forsworn himself in the Exchequer c. and supposed the said words to be spoken in London 4 Feb. 28 Eliz. Et praedict ' Johannes Mounslowe per Johannem Lutrich Attornatum suum venit defendit vim injuriam quando c. Et dicit quod praedict ' Tho. Boxe actionem suam versus eum habere non debet quia dicit quod praedict ' Thomas Boxe being one of the Collectors of the Subsidies before the speaking of the said words viz. 27 28 Eliz. in Curia Scaccarij apud Westm ' did Exhibt a Bill against the said John Mounslowe containing That the said John being assessed in ten pounds in Goods the said Thomas Boxe came to him and demanded of him sixteen shillings eight pence which the said John Mounslowe did refuse to pay and that demand and refusal was supposed to be in London in Breadstreet Et pro verificatione praemisiorum adâ—unc ibid ' Sacramentum Corporale per Barones praefat ' Thomae Boxe praestitit The said Thomax Boxe swore the said Bill in substance was true ubi revera the said John Mounflowe did not refuse per quod the said John Mounslowe postea viz. praedict tempore quo c. dixit de praefat ' Thoma Boxe praedict verba c. pâ—out ei bene Leuit The Plaintiff replyed that the Defendant spake the words de injuria sua propria absque causa per praefat Johannem Mounslowe superius allegata Et hoc petit quod inquiratur per Curiam praedict defendens similiter And a Venâ—re Facias was awarded to the Sheriffs of London and it was found for the Plaintiff and damages 400 l. And now it was moved in Arrest of Iudgment that there was no good Trial nor the Issue well joyned for the Issue doth consist upon 2 points triable in several Counties viz the Oath which was in the Exchequer and that ough to have been tryed in Middlesex and the matter which he affirmed by the Oath viz the demand and the refusal to pay the subsidy and that was alledged to be in London and is there to be tryed and the Issue viz. de 〈…〉 propria goeth to both for the ubi revera will not amend the Case as Penam Iustice said and both are material For the Defendant ought to prove that the Plaintiff made such Oath and also that the substance and matter of the Oath was not true for otherwise the Plaintiff cannot be proved perjured And therefore the Counties here if they might should have joyned in the Tryal And the Opinion of the Court was against the Plaintiff For Anderson and Wincham said That if this Issue could have been tryed by any one of the Counties without the other it should most properly and naturally have been tried in Middlesex where the Oath was made for the Perjury if any were was in the Exchequer But they said The Issue here was ill joyned because it did arise upon two points triable in several Counties which could not joyn whereas the Plaintiff might have taken Issue upon one of them well enough for each of them did go to the whole and if any of them were found for the Plaintiff that he had sufficient cause to recover Gawdy moved that it should be helped by the Statute of Ieofails which speaks of mis-joyning of Issues Anderson The Issue here is not mis-joyned For if the Counties could joyn the Issue were good but because that the Counties cannot joyn it cannot be well tryed But the Issue it self is well enough Windham and Rhodes were of the same Opinion but Periam doubted it Anderson said That if an Issue tryable in one Court be tryed in another and Iudgment given upon it it is Error And afterwards Lutrich the Attorney said That it was awarded that they should re-plead Nota quod mirum For first the Statute of 32 H. 8. cap. 30. speaks of mis-joyning of Process and not mis-joyning of Issues and admit that this Case is not within any of those Clauses each of them being considered by it self yet I conceive it is contained within the substance and effect of them being considered together Also I conceive it is within the meaning of both Statutes viz. 32 H. 8. cap. 30. 18 Eliz. cap. 14. for I conceive the meaning of both Statutes was to waste delays circuits of Actions and Molestations and that the party might have his Iudgment notwithstanding any defect if it were so that notwithstanding that defect sufficient title and cause did appear to the Court. And here the Plaintiff hath sufficient cause to recover if any of the points of the Issue be found for him For if it be found that the matter and substance of the Oath be found true which might be tryed well enough by those in London the Plaintiff had cause to recover Wherefore I conceive that the Verdict in London is good enough and effectual And note that Rhodes said that he was of Counsel in such a case in the Kings Bench betwixt Nevil and Dent. CCCLXVI Mich. 19 Eliz. In the Common Pleas. 3 Leon. 103. THe Case was A. granted B. a Rent-charge out of his Lands to commence when J. S. dyes without Issue of his Body J. S. dyes having Issue and the Issue dyeth without Issue Dyer said That the Grant shall not take effect for J. S. at the time of his death had Issue and therefore the Grant shall not then commence and if he dyeth then not at all by Manwood And Dyer and Manwood said If the words had been to begin when J. S. is dead without Issue of his Body then such a Grant should take effect when the Issue of J.S. dyes without Issue c. And they said That if the Donee in tail hath Issue which dyeth without Issue the Formedon in Reverter shall suppose that the Donee himself dyed with Issue for there is an Interest And there is a difference betwixt an Interest and a Limitation For if I give Lands to A and B. for the term of their lives if either of them dyeth the Survivor shall hold the whole But if I give Lands to A. for the lives of B. and C. now if B. or C. dyeth the whole Estate is determined because it is but a Limitation and B. and C. have not any Interest CCCLXVII Temps Roign
Offic ' praedict ' per Deputarum suum sive deputatos suos the same had been good if there had been no Habendum before There was an Habendum before in the Patent But here are three several Habendums which are as three several Grants and the defect of the one shall not be supplyed by the other 22 H. 6. 11. 2. Assises are maintainable for two Offices although they be by one and the self same Grant And those words Volentes c. in the Patent are nothing to the purpose for the Grant it self is determinable by the Body of the Grant and the Clause de Assistantes shall not supply that Vide 20 H. 6. 1. Land given to two Haeredibus with warranty Haeredibus suis Vide 13 E. 3. Grants 63. Throgmorton and Tracies Case Plow Com. 18 H. 8. Br. Lovels Case and so in our Case the clause of Assistantes makes nothing to the matter for reddendo singula singulis it extends to no more than passed and was granted before in the body of the Grant. The second Point which Dodderidge argued was If there was a sufficient Disturbance and he held that there was not and therefore the finding of the Iury not good And the Iury hath not found the vi armis and he said That when the Writ is vi armis there ought to be some violence and taking of something and some actual thing is to be done Vide F. B. 86. 92. 43 E. 3. 20. 8 R 2. Title Office. 48 E. 3. 25. 16 E. 4. 11. 2 E. 3. 40. But in this Case there is but a threatning at the most but no force is used and there the Writ is ill and there is no sufficient Disturbance to maintain this Action The Case was adjourned Trin. 11 Jac. In the Common Pleas. CCCXCVIII Cookes Case IN a Writ of Intrusit Maritagio non satisfacto It was found for the Plaintiff but no damages were assessed by the Iury and the value of the Marriage was found to 50 l. and now the Question was If the same might be supplyed by a Writ of Enquiry of Damages and prima facie the Court seemed to be of opinion it could not for where a man may have an Attaint there no damages shall be assessed by the Court if they be not found by Iury and the Court would advise of it but afterwards the same Term it was adjudged That no Writ of Enquiry should Issue forth But a Venire facias de novo was granted Vide 44 E. 3. Thorp acc ' CCCXCIX MOuntague Serjeant demanded of the Iustices their opinions in a Case upon the Statute of 3 Jacobi of Recusants in the behalf of the Vniversity of Oxford The Case was If a Recusant Convict to avoid the said Statute grants his Patronage for years to one of his Friends in trust if the Grant was void or not within the said Statute The Iustices refused to deliver their Opinions in this Case for they said That this Point might judicially come in question before themselves and such they said was the Answer of Hussey in 1 H. 7. in Humphrey Staffords case When King Hen. 7. came in Banco and demanded a question of them but yet tacite they seemed to agree that such a lease of the Patronage was void by the said Statute and they said That they would not have the Vniversity to be discouraged in the case which implyed their Opinions to be accordingly And 21 H. 7. was vouched that the Patronage was only matter of favour and not valuable And in this Case Cook said Quod apertus Haereticus melior est quam fictus Catholicus Trin. 11 Jac. In the Common Pleas. CCCC Grubhams Case THe Case was this Grubham made a Lease to one by Deed-poll Habendum to him and his Wife and to his Daughter successive sicut scribuntur nominantur in ordine and afterwards dyed his Wife dyed and if it was a good remainder to the Daughter was the Question Harris Serjeant It was void and not a good remainder for the incertainty Et vide Cook 1 part Corbets Case In all Contracts and Bargains there ought to be certainty and therefore in 22 H. 6. If a Feoffment be made to two Haeredibus it is void although it be with warranty to them and their Heirs Vide 9 H. 6. 35. Where renunciavit totam Communiam doth not amount to a Release because it is not shewed to whom he released And so in 29 Eliz. in Banco Regis in Windsmore and Halbards Case where an Indenture was to one Habendum to him and his Wife and a third person and it was holden that it was void by way of Remainder to any of them But the Court was of Opinion in the principal Case That the Daughter had a good Estate in Remainder and that the Case did not differ from the Case in the Lord Dyer where a Lease was made by Indenture to one Habendum to him and to another sicut nominat in Charta and that those words made the Grant certain enough and so in this Case sicut scribuntur nominantur in ordine shall be sicut scribuntur nominantur in eadem Charta But they agreed That a Lease made to three Habendum successive was not good for the incertainty Hil. 9 Jac. In the Kings Bench. CCCCI Price and Atmores Case IN an Ejectione firmae it was agreed by the Iustices Where a man possessed of a term for 60 years by his Will made his Wife his Executrix and devised all his term and interest to her and if she dyed before the term ended that the same should remain to his Son and the Heirs Males of his Body the Son dyed the Executrix entred and claimed as Legatee and assigned the term over the Executor of the Son entred that his Entry was not lawful for the Son had but a Possibility and no Interest for by the devise of the whole term the whole Interest was in the Wife and when it was in her it could not remain over otherwise if the Land had been granted to her for life and if she dyed that it should remain as before And note that 25 Eliz. it was adjudged in Communi Banco that such a Possibility could not be released And 29 Eliz. in Hammingtons case that it could not be granted Trin. 11 Jac. In the Common Pleas. CCCCII. The Bishop of Exeter and Sir Henry Wallops Case NOte in this case it was adjudged That the King by a special Proviso in the Statute of 21 H. 8. of Plurality might give to any of his Chaplains as many Benefices as he pleased But otherwise it is of a common person for they are stinted by the Statute Mich. 12 Jac. In the Kings Bench. CCCCIII Glover and Archers Case THe case was Tenant for life made a Lease for 21 years 10 Co. 127 128 2 Cro. 127. 309. ib. rendring Rent at Mich. and the Annunciation or within 13 Weeks of any of the said Feasts After Mich.