goes to issue upon it for if they discend to issue upon such a Plea and it be found against the Defendant it is peremptory and he shall loose the Land but upon demurrer it is not peremptory but onely to answer over Which mark VVOrkley versus Granger Mic. 5. Jacobi An Ejectment brought for two Houses and certain Lands c. And upon a speciall Verdict The case was one Heâ— Wels and his wife nere seised of a parcel of Land to them and the Heirs of their bodies begotten as for the joynture of the wife the remainder to the Heirs of the Husband in Fee the Husband bargains and sels the Land to Stamp and his Heirs in Fee And afterwards the Husband and one Winter leavie a Fine of that Land to another who grants that Land back again to Winter for one month the remainder to the husband and wife and the heire of their bodies to be begotten the remainder to the husband and his heirs The Husband dyes the Wife survives and makes a Lease to the Defendant for ninety nine yeers if she should so long live the woman dyes and the Plaintiffe claims under the bargainee and in this Case two points were debated First what Estate passed to the bargainee and Digges of Lincolnes Inne who argued for the Plaintiffe that the bargainee had a Fee simple determinable which issued out of both the Estates as it was held by Periam in Alton Woods Case And he said that the Proclamations upon the Fine are but a repetition of the Fine as it is held in Bendlones Rep put in the Case of Fines in Cooks 3. Rep. And see Pinslees Case for then for the same cause the Issue in tayl is bound although the Fine be levied by the Husband alone by the Statute of the 4. H. 7. and 32 H. 8. because he cannot claim but as Heir to the Father as well as to the Mother and therefore his Conveyance is bound and see 16. E Dyd 332. Husband and Wife Tenants in speciall tayl The husband is attainted of Treason and executed having Issue the woman dyes the Issue shall never have the Land And if husband and wife Tenants in speciall tayl And the Husband levies a Fine to his own use and devises the Land to his wife for life which remainded over rendring Rent the husband dyes the woman enters pays the Rent and dyes the Issue is barred for two causes first by the Fine which had barred his Conveyance of the intayl secondly by the Remitter waived by the Mother 18 Eli Dyer 531. See 5 H. 7. Assise Thorp and Tirrels Case Secondly the Lease made by the woman was determined by her death and it was said that the woman had not any qualitie of an Estate tayl but onely she might take the profits during her life within the Statute of 11 H. 7. And when she dyes the Estate is denised See Austens Case Doctor Wyat Tenant in tail leased for yeers And dyed without Issue the Lease was determined See first of Eliz title Executors And 31 H. 8. Dyer Where a Bishop made a Lease for yeers and afterwards makes another Lease to one of the Lessees c. And Fleming held that if the woman survived as under Tenant in speciall tayl and made a Lease for 21. yeers it is out of the Statute of 32 H. 8. and so it was adjudged in Wattes and Kings Case LAne versus Alexander Hill 5. Jaco The Plaintiffe declares in Ejectment upon a Lease made to him by Mary Planten for three yeers the Defendant saies c. that the Land is Copihold Land of the Mannor of H. in Norff. whereof the Queen Eliz was seised in Fee and long time before the Lessor had any thing there in Court such a day that J. S. her Steward at the Court c. granted the Land to the Defendant by Copie in Fee according to the custome and so justifies his entry upon the Plaintiffe The Plaintiffe replies and saies that long time before the Copy granted to the Defendant to wit at a Court of the Mannor held such a day the 43. Eliz the Queen by Copy c. granted the Land to the Lessor for life according to the custome by force whereof he entred and made a Lease to the Plaintiffe The Defendant by way of rejoynder maintained his barr and traverses with that the Queen at the Court of the Mannor by J. S. her Steward such a day c. granted the Land to the Lessor and upon this the Plaintiffe demurred in Law generally And Yelverton moved that the traverse was good in this Case upon the day and Steward and the difference is where the act done may indifferently be supposed to be done on the one day or the other there the day is not traversable as in the Case of a Deed made such a day there the day of the Deed is not traversable for it passes by the livery and not by the Deed. And the livery is the substance and the day but a bundance 10 E. 4. And the Law is the same if the day in trespasse wherein the day is not traversable For although it be done upon another day it is not materiall But when a man makes his title by an especiall kinde of Conveyance as in this case the Plaintiffe makes his title by one Copy there all that is concerned in the Copy is materiall and the party cannot depart from it for he claims not the Land by any other Copy but by that which is pleaded as is in the 18 H. 6. 14. where an Action is brought for taking his Servant and counts that he by Deed retained with him his Servant the Monday in one week in such a case it is a good plea for the Defendant to say that the Servant was retained by him such a day after without that that the Plaintiffe did retain him the Monday And the Law seems to be concerning Letters Patents wherein the day and place are traversable being the speciall conveyance of the party from which he cannot depart And also it seems that although the day in the principall case be traversed yet the Statute of 18 Eliz of Demurrers aids it it being but a generall Demurrer and the day being onely matter of form But the whole Court were of opinion that the day was not traversable in this case For the Queen granting an ancienter Copy to the Plaintiffs Lessor then to the Defendant and the traverse should have been without this that the Queen did grant in manner and form c. to the Plaintiffs Lessor and the Case is the same in the Letters Patents for there the traverse should be without this that the Queen granted in manner and form c. And the day and place shall not come into the traverse But Justice Fennor was of a contrary opinion for the Reason delivered by Yelverton before and he also and the Lord cheif Justice held it to be holpen by the Statute of 18 Eliz for it is but
that it was collaterall warrantry where in truth it was a lineall warranty and it was held naught because the warranty was in Law a lineall warranty the Case was that Land was givenby Feoffment made to the use of the Feoffer for life remainder in Tail Tenant for life dies Tenant in Tail had Issue a Son and two Daughters and the Father and Son joyn in a Feoffment with warranty and after the Father and Son die without issue and the Daughters bring a Formedon and this is a lineall warranty PIt versus Staple Trin 14 Jac. rotulo 112. Formedon in le discender against three which plead non-Tenure and issue thereupon joyned and found specially that two of them were Lessees for life the remainder to the third person and whether the three were Tenants as is supposed by the writ was the question and the better opinion was that it was found for the Demandant for the Tenants should have pleaded severall Tenancy and then the Demandant might maintain his writ but by this generall non-Tenure if any be Tenant it is sufficient but in some Cases the Precipe may be brought against one who is not Tenant as a morgagor or morgagee COmes Leicester versus Comit. Clanriccard In Formedon upon a Judgement given in part for the Demandant and part for the Tenant the Tenant brought a writ of Error and had a Supersedeas upon it and afterwards the Demandant prosecuted a writ of Seisin and delivered it to the Sheriff and he executed the writ and immediately afterwards the Tenant delivered the Supersedeas to the Sheriff and the Tenant moved the Court and prayed a writ of restitution and it was granted him because the Tenant had done his indeavour and had not delayed the prosecuting the writ of Error COmes Clanriccard Francisca uxor Ejus Demandants versus R. S. milit vicecomit Lyple for three messuages c. which R. late Earl of Essex and Frances late wife of the said Earl by Fine in the Court of the Lady Elizabeth late Queen of England before her then Justices at Westminster levied and gave to William Gerrard Esquire and F. Mills Gentleman and the Heires of the said W. for ever to the use of Elizabeth Sydney Daughter and Heir of P. S. Milir and the Heirs of the Body of the said E. comming and for default of such issue to the use of the said F. then wife of the said Earl and the heirs of the said Fr. and which after the death of the said Eliz. ought to revert to the said Fr. by form of the gift aforesaid and by force of the Statute in such case provided because the said Eliz. died without Heir of her Body The Tenant pleaded in abatement of the writ because the writ ought to revert to the woman alone and it should have been to the Husband and wife and upon a demurrer Judgement was that he should answer over the writ may be either to revert to the Husband and wife or to the wife alone and herein the Tenant vouch two vouches and one is Essoined and an idem dies given to the other and Serjeant Harris demanded of the Court if he should Fourcher by Essoin because the Statute of Westminster the first is that Tenants Parceners or Joint Tenants shall not fourcher in Essoin therefore they two should not fourcher by Essoin but the Court held that before appearance it could not appear to the Court whether they were Tenants or not and therefore before appearance they shall have severall Essoins and Westminster the first is expounded by Gloucester the tenth which is that two Tenants shall not fourcher after appearance and at the day of the adjournment of the last Essoin the Tenant was Essoined and such Essoin was allowed and adjudged by the whole Court and the reason hereof seemed to some to be because the Tenant might be informed of the Vouchee that he vouched was the same person or no for he might be onother person for if he should be an estranger and demand the place and the Demandant could not hold him to the warranty the Demandant should loose his Land and they held that upon severall Processe to wit upon the view and upon the summons to warranty which are divers Processes the Tenant ought to be Essoined and the Court held that this Essoin was at the Common Law if the Tenant and the vouchee at the day given to the Tenant and the vouchee make default Judgement shall be given against the Tenant to wit a petty Cape and nothing against the vouchee SHotwell versus Corderoy In Formedon the Tenant prayes in aid â—nd the prayee in aid and Tenant vouch and the Vouchee was essoined and adjourned and at that Day the Attorney of the Tenant without the Prayer in aid cast an Essoin and an Idem dies given the Prayee in aid and it was quashed for they shall not have severall Essoines but joynt Essoines A Formedon brought of Lands in A. B. C. The Tenant pleads a Fine of all by the name of the Mannour and Tenements in A. B. And it was objected that he said nothing to the Land in C. but the Courtheld that by the name of the Mannor the Land in all the Villages would pass and the Demandant may if he will plead as to the Land in C. that it was not comprised in the Fine Hill 7. Jacobi rotulo 76. vel 69. Formedon in the Discender the Writ was general that J. L. gave to T. L. and the Heirs Males of his Body upon the Body of D. V. Widow lawfully to be begotten which D. the said T. afterwards took to Wife and which after the Death of the said T. c. Son and Heir Male of the Body of the said T. upon the Body of the said D. lawfully begotten to the said J. L. younger Son and Heir of the said J. L. Son of the said T. ought to descend by form of the Gift aforesaid c. and whereof he saith that the said T. was seised c. and 2 Eliz. of the said Tenements did infeoff the Plaintiff in Fee to the use of the said T. L. and his Heirs c. and note in the Count no mention made of the Marriage If a Gift be made in tail to D. and his Heirs Males the Remainder to A. in tail D. discontinues in the Life of A. and D. dies without Issue and the Heir of A. brought his Writ as the immediate Gift to A. his Ancestor who never was seised in his Life and for that cause the Writ was naught but if A. had been seised of the Land then it had not been necessary to have shewed the first Gift to D. by the opinion of the whole Court Actions upon the Statute of Hue and Cry NEedham versus Inhabitant Hundredi de Stoak Trin. 8. Jac. rotulo 534. Action brought upon the Statute of Hue and Cry by the Servant who was robbed in his own name and part of the Goods
the remainder to John D. bastard in Tail the Remainder to the Defendant Ro. Duckmonton in Fee the woman married with Ro. D. the Defendant the Term expired Jo. D. Tenant in Tail in remainder releases to the Husband and whether this should alter the estate of the Husband he being Tenant at sufferance was the question and adjudged by the whole Court that the Release was void and it was cheifly void because the Release was made to him in the Remainder to take effect as upon the Remainder and there was no privity and he had but a bare possession and no Freehold and 10 Eliz. Dier Lessee for years surrenders and afterwards the Lessor releases to him and held a void Release for the reason aforesaid and 31 and 32 Eliz. it hath been adjudged between Allen and Hill where a Devise was made to the woman for life if she would inhabite and continue in the house and he went and inhabited in Surrey and the Heire released to her and it was held void because she was but Tenant at sufferance and so no privity but Yelverton and Tanfield that such estate for life was not determined without Entry and Yelverton Justice demanded that when the Husband continued in possession after the Lease determined whether he should be in the Right of his Wife and so remain Tenant at sufferance whether he should be in his own Right or be as an intruder Disseisor and then the release made to him was good but no answer was given to him but Judgement was given that the release was void and Fennor put this Case Tenant for life remainder in Tail remainder in Fee he in the remainder in Fee released to Tenant for life a void release because of the mean remainder in Tail and cited 30 E. 3. and no answer was given to it and Yelverton said that if Tenant for life release to him in the remainder in Fee it is void because it shall be void as a surrender and this word release shall not recite as a surrender HOldesden versus Gresill Mich. 5 Jacobi An Action of Trespass brought for breaking the Plaintiffs Close called B. at L. and for taking of two Conies the Defendant to the whole Trespasse but the entring in the Close pleads not guilty and as to the Close justifies because he Common in the Close called B. for five Cowes and because very many Conies were there feeding and spoiling the Common the Defendant in preservation of his Common entred to chase and kill the conies to which the Plaintiff demurred in Law and Judgement was given that the justification was naught for a Commoner cannot enter to chase or kill the Conies for although the owner of the Soil hath no property in the Conies yet as long as they are in his Land he had the possession which is good against the commoner for if the Lord surcharge the common with Beasts the commoner cannot chase them out but the owner may distrain the Beasts of an estranger or dammage feasant or chase them out of the common for the stranger hat no colour to have his Beasts there and also conies are a matter of profit to the owner of the Soil for Housekeeping and therefore because it appears that the cause of Entry was to chase and also to kill which are not lawfull as against the Lord who is Plaintiff therefore the matter of the justification is not good for if the Lord surcharge the Soil with conies the commoner may have an Action of case against him for that particular dammage which is a sufficient remedy against the Plaintiff upon a full and deliberate considera-of all the Judges JEnnings versus Haithwait Mich. 5 Jacobi An Action of Trespass brought to which the Defendant pleaded not guilty the Jury found the Defendant Vicar of D. and that he such a day leased his vicaridg to J. S. for three years rendring rent which J. S. assigned one Acre parcell thereof to the Plaintif and the Defendant was absent severall quarters in one year to wit sixty dayes in every quarter but they did not find the Statute of 13 Eliz. adjudged for the Defendant for the Statute of the 13 Eliz. is a generall Law for although it extends but to those which have cure of Souls yet in respect of the multiplicity of Parsonages and vicaridges in England the Judges must take notice of it as a generall Law and adjudge according to the said Statute and so is the Statute of the 21 H. 8. for non-residence DRewry versus Dennys Mich. 5. Jacobi An Action of Trespass brought against a man and his Wife and the Plaintif declares that they did beat one Mare of the Plaintifs and committed diverse other Trespasses and upon not guilty pleaded the Jury found that the Woman beat the Mare and for the residue they found for the Defendant and the Verdict adjudged naught by the Court for it is altogether imperfect for they have found the Woman guilty of the beating the Mare and have given no Verdict concerning that for the Husband either by way of acquittall or condemnation and the finding the Defendant not guilty as to the residue doth only extend to the other Trespasses contained in the Declaration and not to the beating of the Mare And Williams and Cooke Justices said that where a Battery is brought against Husband and Wife supposing that they both beat the Plaintif or the Mare of the Plaintif and upon not guilty pleaded it is found that the Woman onely made the Battery and not the Husband this Verdict is against the Plaintif for it now appears that the Plaintifs Action was false for the Husband in this case shall not be joyned for conformity onely and there is a speciall Writ in the Register for this purpose and is not like a Battery charged upon I. D. and I. S. for there one may be acquitted and another found guilty and good because they are in Law severall Trespasses SAnds and others versus Scullard and others Mich. 5. Jacobi The Plaintiffs brought an Action of Trespass against the Defendants for entring their Close and Judgement was entred against Dawby one of the Defendants by nil dicit Scullard pleaded not guilty whereupon a Venire facias was awarded upon the Roll between the parties as well to try the Issue as to inquire of the damages And the Plaintiffs took their Venire facias to try the Issue between the two-Defendants and the two Plaintiffs And according to that was the Habeas Corpus and Distringas but the Plaintiffs knowing Dawby to be dead took their Record of Nisi prius against Scullard onely and he was found guilty And Yelverton moved in Arrest of Judgement and shewed the Venire facias and that there was no Issue joyned between the Plaintiffs and Dawby for Judgment was given against him by Nil dicit and the Writ ought to have made mention onely of the Issue between the Plaintiffs and Scullard And their ought to have been
although his Estate be ended And the like if a Lease be granted to a Woman so long as shee shall live sole or shall behave her selfe wel if shee commit Waste the Writ shall be brought in the Tenet ad terminum vite and the Count shall be speciall If Tenant in Dower grants over his Estate to a Stranger and commits Waste yet the Action lyes against the Tenant in Dower but otherwise it is if the Heire grants over his Estate And the like for Tenant by the Curtesie If Waste be brought against two and one appear upon the Distringas and the other make default the Plaintiff shall have a Writ to inquire of the Waste but shall declare against him that appears for a man shall not recover by moities in Waste as one shall recover in a Precipe quod reddat against two for in waste the Land shall not be lost by default by an Action tryed and if a waste be committed between the Judgement and Execution a writ shall be awarded to inquire of the waste but Quaere thereof If a woman while she is sole commits waste and marries the writ shall be that the woman while she was sole committed waste and if Tenant in Tail in remainder brings an Action of waste against Tenant for life the writ may be which he holds of the Tenant in Tail although they hold of him in the Reversion in Fee and so it was adjudged Pasch first James that the writ was good An Action of waste lies against Executors for waste for waste committed by the Testator and if a man have Land in the Right of his Wife and waste is committed and the woman dies now no Action of waste lies against the Husband after the death of the wife In waste if the Term be ended and nothing be recovered but damages there a concord with satisfaction is a good plea and if the Lease for years determines pending the writ the Plaintiff shall recover nothing but damages and not the place wasted The Defendant may disclaim in his Action if he that hath the fee pleads no waste done this is a forfeiture of his Estate the Defendant may plead no waste done and give in Evidence that the Tenements at the time of the Demise were ruinous ancient Demesne is no Plea in Waste If a Guardian in Socage in the Right of his wife commits waste the writ shall be brought against the Husband onely Mich. 27. Ed. 1. rotulo 329. If an Action of waste be brought against the Husband and wife and the Husband appear upon the Distringas and the wife maketh default this shall be the default of both of them Mich. 20. H. 4. rotulo 393. the Plaintif may abridge the waste assigned in part so that he aabridges not the whole as if writ be of waste in houses and wood he may abridge part of the assignment in the houses and woods but not the whole and if Issue be joyned for part and demurrer for another part the Issue may be tryed before the Demurrer adjudged If an Indenture to raise uses upon good consideration be made and he that hath the Estate for life commits waste he to whom the reversion is limited by the same Indenture may have a generall writ of waste by saying generally that he hath demised it or a speciall writ at his pleasure and Mich. 27 H. 7. it was held by all the Judges that it is an ill return for the Sheriff to return upon a writ to inquire that he hath commanded his Bailiff because the Sheriff is both Officer and Judge which power cannot be committed to the Bailif of the Liberty and the writ is a Non omittas in it self but Quaere for there are divers Presidents against it the Lessee may cut down Trees for the repairing of houses when the Lessor is bound by covenant to repair and doth not and it is no good Plea for the Lessee in waste brought against him by his Lessor to say generally that he hath nothing in the Reversion but he must shew how the Reversion is not of him but upon a grant of the Reversion and waste be brought by the Grantee nothing in Reversion is a good Plea Upon no waste pleaded the Defendant cannot give in Evidence that the Tenements were sufficiently repaired before the writ brought If an Issue arises iâ— a forreign County the Jury shall not be examined of the view and if the Jurors be not examined of the View when they should be examined it is Error If my Father leases Land for term of life the writ of Waste shall be of houses c. which the said A. Father to him demised and so in a Writ of waste of a Lease made by my Predecessor but if the Abot or the Son himself bring the writ it shall be of Houses which he holds for a Term c. if waste be made sparsim in a Close or wood the Plaintiff shall recover the whole Close or wood and the treble value shall be levyed by Fieri facias or Elegit and not by Capias because a Capias lies not upon the Originall the Sheriff may take a Posse Comitatus to stay the Tenant from doing of waste upon an estrepment Two Tenants in Common one of them makes a Lease for years to the other An Action was brought against Tenant for years by him in the Reversion the Case was that the Lessorafter the Lease made granted another Lease in Reversion for yeares and this matter pleaded in abatement pretending that the Lease in Reversion was an impediment against the Plaintiff inbringing his Action but otherwise adjudged for if a Lease be made for life the Remainder for years and waste be committedby Tenant for life notwithstandingthe Lease for years in remainder waste lies SKeate against Oxenbridge and his wife Trin. 12 Jac. rotulo 849. waste brought of Lands and Gardens in L. of which E. K. was seised in his Demesne as of Fee and being so thereof seised after the fourth of February 27 H. 8. thereof infeoffed E. S. and others to the use of the said E. S. dead and of the said E. for Term of their lives and the longest liver of them and after the decease of the said E. S. and the said E. then to the use of the Heirs of the body of the said E. S. to be begotten upon the body of the said E. of which said E. S. dead the now Plaintiff is Son and Heir begotten on the body of E. committed waste and in the Declaration he shewed the Feoffment made to the Feoffees and the habend to them and their Heirs and because the word Heirs was omitted in the writ exception was taken but because it was in the Declaration it was adjudged good and note in this Case the woman was received upon the default of the Husband and pleaded to Issue If the Feoffees have but an Estate for life then they cannot convey an Estate in Fee simple over SAunders against Marwood H. 41. El. rot
any private Prison And it seemes if any do against this Statute that an action of false Imprisonment lies For every one ought to be committed to the Common Goal to the intent that he may be dilivered at the next Goale delivery and also if any be committed to any of the Counters in London unlessthat it be for debt that an action of false Imprisonment lieth for that for these are private Prisons for the Sheriffes of London for Debt only Note in Debt for ten pound the Defendant confesseth five pound and for the other five pound pleades that he oweth nothing by the Law and at the day the Plaintiff would have been nonsuited And it was agreed by all that if he be nonsuited that he shall loose all as well the debt confessed as the other Note the yeare of the Reigne of the King was mistaken in the Record of nisi prius but the Record which remaines in the Court was very well and it was amended For insomuch that it was a sufficent and certaine Issue this was sufficent Authority to the Justices of nisi prius to proceed but nothing being mistaken but the yeare of the Reigne this shall be amended for it is only the misprision of the Clark see Dyer 260. 24 25. 9. Eliz. 11. H. 6. Note also if Tenant in Dower be disseised and the Disseisor makes a Feoffment the Tenant in dower shall recover aâ—l their dammages against the Feoffee for she is not within the Statute of Glocester chapter 1. By which every one shall answer for their time Hillary 8. Jacobi 1611. in the Common Bench. Reyner against Poell See Hillary 6. Jacobi fol IN second deliverance for copy-hold in Brampton in the County of Huntington the case was copy-hold Lands were surrendered to the use of a woman and the Heires of her Body and she took a Husband the Husband and the Wife have Issue 2. Sonnes and after Surrenders to themselves for their lives the remainder to the eldest Son and his Wife in fee the Husband and the Wife dye the eldest Son dies the youngest Son enters and Surrenders to the use of a stranger And the sole question upon which they relied if the Wife was Tenant in tayl or if she had fee simple conditionall and it was argued by Nicholls that the Wife was Tenant in tayl and to prove that he cited 2. cases in Littleton where it is expresly mentioned who may be Tenant in tayl see Sect. 73. 79. And who may have a Formedon see in the discender sect 76. And he grounded that upon reason for that that it cannot be denied But that fee simple might be of copy-hold according to the custome and as well as fee simple as well it may be an estate tayl for every greater containes his lesse and he said that this is grounded upon the reason of other cases as if the King grant to one to hold Plea in his Court of all actions of debt and other actions and then one action of debt is given in case where it lieth not at the common Law yet the Grantee may hold Plea of that But if a new action be framed which was not in experience at the time of the grant but is given after by Statute the grant shall not extend to that and to the Objection that copy-hold is no Tenement within the Statute of gifts c. As to that he saith that that shall be very well intended to be within the Statute as it is used and 4. H. 7. 10. A man makes a gift in tayl by deed the Donee hath an estate tayl in the deed as well as in the Land so Morgan and Maxells case Commentaries 26. And so of Office Honour Dignity and copy-hold also and Dyer 2 and 3. Phil And Mary 114. 61. It is found by speciall verdict that copy-hold Lands have been devisable by copy in tayl and so it is pleaded 2 and 3 Eliz. Dyer 192. b. And when a lesser estate is extracted out of a greater that shall be directed and ordered according to the course of the Common Law and for that the Wife shall have plaint in nature of a Cui in vita and 15. H 8. b. Title Tenement by copy of Court Roll it was said for Law that tayl may be of a copy-hold and that Formedon may well ly of that in descender by protestation to sue in nature of a Formedon in descender at the Common Law and good by all the Justices for though that Formedon in descender was not given but by Statute Yet now this Writ lieth at the Common Law and shall be intended that this hath been a custome time out of mind c. And the Demandant shall recover by advise of all the Justices and the like matter in Essex M. 28. H. 8. And Fitz. affirms that in the chamber of the Dutchy of Lancaster afterwards and also he saith that when custome hath created such Inheritances and that the Land shall be descendable then the Law shall direct the discent according to the Maximes and Rules of the Common Law as incident to every estate discendable and for that shall be possessio Fratris of a copy-hold estate 4. Coke 22. a. Brownes Case b. And there 28. a. Gravener and Tedd the custome of the Mannor of Allesley in the County of Warwick was that copy-hold lands might be granted to any one in fee simple and it was adjudged that a grant to one and the Heires of his Body is within the Custome for be that Estate Tayl or Fee simple conditionall that is within the Custome So he may grant for life or for yeares by the same Custome for Estate in Fee simple includes all and it is a Maxime in Law to him that may do the greater it cannot be but the lesse is lawfull and over he said that in all cases where a man was put to his reall action at the Common Law in all these cases a copy-holder may have plaint with protestation to prosecute in â—…re of the same action and to the objection that there cannot be an Estate tayl of copy-hold Land for that that the Tenant in tayl shall hold of him in revertion and shall not be Tenant to the Lord to that he said that this Estate may be created as well by Cepit extra manus Domini as by Surrender and then there is not any reversion or remainder but it is as if Rent be newly granted in tayl but he said there may be a reversion upon an Estate tayl as well as upon an Estate for life and he did not insist upon the Custome but upon this ground that if the Custome warrant the greater Estate which is the Fee simple the lesse shall be included in that And he did not argue but intended that it would be admitted that discent of copy-hold Land shall not take away entry nor Surrender of that nor shall make discontinuance so prayed Judgement and â—…rne Harris the youngest Serjeant argued for the Plaintiff that it shall be
is now out of the Statute for the advancement ought to be continuing until the death of the Father And so he saith also it was adjudged in Butler and Bakers Case that if a man devise Socage Lands and after sell to a stranger for good consideration his Lands held by Knights service this devise is now good for all for hee hath not any Land held by Knights service at the time of his death and so he concluded that the devise was good and prayed Judgement for the Plaintiff Houghton Serjeant for the Defendant he thought the contrary and hee argued that before the statutes of 32. and 34. of H. 8. men were disabled to devise any Land and for that they cannot provide for their Wives Children or for payment of their Debts and for remedy to that Feoffments to uses were invented and then to dispose the use by their Wills and then experience finds that to be inconvenient and then the statute of 27. H. 8. transfers the use into possession and then neither use nor land was deviseable without speciall Custome and then this was found to be mischeivous after five years experience and then was the statute of 32. H. 8. made and where by the statute of Marlebridg of those which did enfeoff their begotten sons a Feoffment by the Father to his son and Heir was void for all Now by this statute this is good for 2. parts and void only for the 3d part that for the good of the Lord but as to the party that is good for all as it is agreed in Mightes case 8 Coke Then to consider in the case here if all things concur that the statute requires and to that here is a person which was actually seised of Land held by Knights service in 12. Eliz. So that it is a person which then was having within the statute 2. If here be such conveyance for advancement of his children as is intended within the statute and to that he seemed that so notwithstanding that it may be objected that here is no execution to the youngest children insomuch that it is first limited to such Farmers and Tenants c. But he intended that this is no impediment Secondly also there is a limitation to the use of his last Will. Thirdly also there is a limitation to the use of such persons to whom he devises any estate by his Will But these are no impediments for the last is no other but a devise to himselfe and his heirs and there is not any other person knowne but meerely contingent and it is not like to a remainder limited to the right heirs of I. S. for there the remainder is in Abeiance but here it is only in contingency and nothing executed in Interest till the contingency happen and the not having of a son at the time shall not make difference as in 38. Edw. 3. 26. in formedon in Remainder where the gift was in one for life the remainder to another in tayle remainder in fee to another stranger and he in remainder in tayle dyes without Issue in the life time of the Tenant for life he in remainder in fee may have formedon in remainder without mentioning the remainder in tayle But here he intends that the devise shall be void in respect of the Lands first conveyed which were held in cheife by Knight service for the words of the statute are by act executed either by devise or by any of them and they are conjoyned and it is not of necessity that the time of the Conveyance shall be respected but the time of the value And notwithstanding that the Testator doth not mention any time But in so much as the provision of the statute is to save primor seisin and livery to the King as if the man had 20 l. by year in Socage and one acre in cheife and makes a conveyance of all that it shall be void first to the livery and priâ—or seisin to the third part So if he make conveyance of the 20 l. by yeare and leave the said acre held in cheife to discend and after that purchase other Lands to the value of the third part of all the conveyance of the 20 l. land notwithstanding which for the advancement of his Wife Children or payment of his Debts for he had a full third part at the time of his death which discended And he supposed that the having of a dry reversion depending upon the estate tall is sufficient having within the words and letter of the Statute and yet he agreed the ease put in Butler and Bakers case that if a man devise his Socage Lands and after alien his Lands held in cheife by Knight service to a stranger bonafide this is good So if he had made a reservation of his Lands held in chiefe to himselfe for his life in so much that his estate in that ended with his life and hee remembred the case cyted in Bret and case Comment That if a man devise a Mannor in which he hath nothing and after hee purchaseth it and dyes the devise is good if it be by expresse name But when a man hath disposed of two parts of his Land the Statute doth not inable him to devise the Residue but he hath done all and executed all the authority which the Statute hath given to him But he agreed also that the reversion is not such a thing of value which might make the third part discend to the Heir but it is uncertaine as a hundred and the other things of uncertain value contained in Butler and Bakers Case And also he intended that the remainder could not take effect insomuch that the condition is precedent and it is not found that the eldest Sonne hath aliened and then dead without Heir male and so he concluded and prayed Judgment for the Defendant In Replevin the Defendant avows for 9 s. Rent the Plaintiff pleads a Deed of feoffment of the same Land made before the Statute of quia emptores terrarum by which 6 s. 8 d. is only reserved and demands Judgment if he shall be received to demand more then is reserved by the Deed See 4 Ed. 2. Avowry 202. 10. H. 7. 20. Ed. 4. 7. Edw. 4. Lung 5 Ed. 4. 22 H. 6. 50. This Deed was without date and it was averred that it was made before the Statute of quia emptores terrarum which was made in the 18. of Edw. 1. And also it ought to be averred to be made after the beginning of the Reign of Richard 1. For a writing after the beginning of his Reign checks prescription But if a man hath a thing by grant before that he may claim by prescription for hee cannot plead the grant insomuch it is before time of memory and a Jury cannot take notice of that and for that the pleading before with the said averments was good If debt be due by Obligation and another debt be due by the same Debtor to the same Debtee of
upon the Estate and to the Livery made after two Rent dayes incurred he intended that Livery is good that notwithstanding for the deferring of the Execution of a letter of Attorney shall not defeat the Lease or other meane act which amounts to a Command for the Lessâ—r takes the profits in the mean time and it is not like to Littletons case that if a man devise his land to his Executors to be sold and they take the profits and do not make Sale that the Heir may enter insomuch that the Executors have not performed the Condition and it was not the intent of the Devisor that they should take the profits in the Interim to their own use and he intended that the declaration was not repugnant for it is of the aforesaid Church and not of the Dean and Chapter aforesayd and also there need not such congruity as it were the Foundation of the Action insomuch that this is only Allegation of the truth of the matter see 1 H. 7. 18. For variance upon shewing in Deed and 17 Ed. 3. 33. b. and here the aforesaid shew that it is the same in substance though it vary in words and though that the name is altered yet are the same persons in substance and the same Body and though that it be as it is intended to be of another part yet it is but name and the Foundation then is not Issuable as if the King H. 8. had been the Founder and made speciall provision in the Foundation that after the Time of Ed. 6. it shall be said to be the Foundation of Ed. 6. this shall be good and so he concluded and prayed Judgment for the Plaintiff see after adjudged Michaelmas 9. Jacobi 1611. In the Common Bench. The Bishop of Ely THE Bishop of Ely granted an Office with the Fee for the exercising of that if it be an ancient office it is a good grant and if the Fee be newly increased yet Foster Justice thought that the Grant shall be good for the Office and for so much of the Fee as hath been anciently granted with the Office Michaelmas 1611. 9. Jacobi in the Common Bench. Holcroft against George French IN an Action upon the Case upon an Assumpsit if the consideration be Executory then the Declaration ought to contain the time and place where it was made and after it ought ro be averred In Facto when it was performed or executed accordingly but if it be by way of Reciprocall agreement then the Plaintiff may count that in consideration that he hath promised for the Defendant the Defendant hath promised to do another thing for him there he need not that the Declaration contain time or place for the consideration or otherwise that it is performed and executed But if in the first case where it is executory that is also an averment that it is executed there if the Defendant plead Non Assumpsit generally and do not plead the speciall matter he cannot after take exception to that Count for the Default aforesayd where he pleads specially to that as in an action of Trover the Conversion ought to be averred to be in a certain place and so in submission and Arbitrement they are contained in the declaration it need not to expresse any time or place certain but if the Defendant pleads that the Arbitrators made no award or that the parties have not submitted themselves to their award there the Plaintiff may reply that the Arbitrement or Submission was made at such a place and this was agreed by all the Justices Michaelmasse 1611. 9. Jacobi in the Common Bench Sir Edward Puncheon against Thomas Legate IT was adjudged in the Kings Bench and affirmed upon a Writ of Errour in the Kings Bench that an action upon the case upon an Assumpsit made by the Testator is very well maintainable against the Executor and this was for Money borrowed and so the Count speciall but not upon generall Indebitatus Assumpsit but is good without any averment that the Executors have assets over the payment of Debts due by specialty and Legacies and he sayd that the Record of the Case of 22 H. 8. with this agrees and that the book in this is misprinted and so Coke cheife Justice who publickly reported this Judgment in the Common place sayd which was adjudged in the 11 H. 8. in this Court Note that Land of which a Writ of Right Close lyeth shall be assetts in a Formedon and it is a Free-hold and not a Copy-hold and so are all Lands in ancient Demesne 3 Ed. 3. 14 H. 4. It is no matter what is known to the Judge if it be not in the form of Judgment Pasche 1611. fol. 50. HAughton Serjeant for the Defendant argued that the entry of him in Remainder is not lawfull insomuch that he intended it is not any forfeiture of the Estate tayle and first he argued that the condition is not good but repugnant to Law and for that voyd and yet he agreed that Tenant in tayl may be distrayned from making unlawfull Acts but here the condition tends to restraine him from doing of things which are lawfull as if a man makes a Gift in tayl upon condition that the Wife of the Donee shall not be indowed or that the Husband of the Donee shall not be Tenant by the Curtesie or that a Feoffee shall not take the profits of the Land though that the profits may be severed from the Land as in 16 Ed. 3. Formedon was brought of the profits of a Mill yet the condition is voyd insomuch that it is against the nature of an Estate tayl or in Fee-simple to be in such manner abridged so if a man makes a gift in tayl upon condition that the Donee shall not make waste the condition is void for the making of wast is a priviledge which is incident to an Estate tayle and for that the condition restraynes the Tenant in tayle of a thing which the Law inables him to do the condition is yoyd so a Donee in tayle upon condition that he shal not make a Deed of Feoffment or Lease for his own life as it is agreed in Mildmayes Case so here when the condition restraynes Tenant in tayl of concluding and agreeing the which in him is not any wrong no more then if a man should make a gift in tayl upon condition that the Donee should not bargaine and sell the Land this is voyd insomuch that he doth not make any wrong or discontinuance So in the case here for the thing which is restrayned that is concluding agreeing is in it self a lawfull act and also this is only the affections and qualities of the minde that they cannot make an Estate conditionall if an open act be not annexed unto it but he agreed that if a man make a gift in tayle or a Lease for life of white acres upon condition that the Donee or Lessee shall not take the profits of Black acre this is
Ed. 2. Counter Plea of voucher 111. 21. Ed. 4. 71. Then he supposed here was generall warranty which is executed and also another warranty which remaines notwithstanding any thing which appears to the Court for he hath not demanded any binding 10. Ed. 3. 15. a. b. Also the warranty in the Fine is the warranty of all the Conusees and the warranty upon which the voucher is is only the warranty of Sir Robert Osborne which cannot be intended the same warranty which is contained in the Fine which is by two as it is resolved in 10. Ed. 3. 52. But admitting that it agrees in all that is the voucher and the warranty in the Fine that is in number of persons and quantity of land and all other circumstances yet it shall be no Barr for the Common Recovery is only as further assurance for it is for forfeiture if it be suffered by Tenant for life as it is resolved in Pelhams Case 1. Coke Also he supposed that notwithstanding that the Fine was levied hanging the Writ of entry and â—o Sir Henry Rowles made Tenant yet this is good being by purchase but not if it be by discent or by recovery upon elder Title And he supposed that if the recovery and the warranty might be together by any possible meanes they shall not be distroied insomuch that this is the common case of assurance and for that shall be taken as in Pattenhams Case 4. and 5. Phil. and Mary Dyer 157. and 2. Coke Cromwells Case 77. b. where a man makes a Feoffment upon condition rendring Rent and after suffers common recovery and yet this notwithstanding the condition and Rent remaines And so it seemes that in this case the warranty remaines notwithstanding the Recovery and so he concluded and praied Judgement for the Plaintiff Nicholls Serjeant for the Defendant and he seemed that the warranty is destroied first insomuch that the Recovery was to other uses and the Fine was when proved that there was no further assurance also he supposed that insomuch that it doth not appeare to what use the Recovery was for the Mannor of Kelmersh that for that it shall be intended to the use of Sir Robert Osborne himselfe and then for that also the warranty is distroied insomuch that part of the Land is re-assured to Sir Robert Osborne as in 40. Ed. 3. 13. The Father enfeoffes the Son with warranty which re-enfeoffes the Father this destroies the warranty So if they make partition by their owne Act as it is agreed in the 34. Ed. 3. Also he supposed that the Tenancy in Sir Henry Rowles is distroied before that the Fine was Levied insomuch that this was Executed by voucher and so he did not purchase hanging the Writ for this is also conveied from him by the Recovery in the value before that the Fine is levied and it is all one with the case where a man recovers upon good Title hanging a Writ and he agreed that the recovery had been for further assurance that then it shall be as it hath been objected by the other party and the warranty had remained but this he supposeth it was not insomuch it was to other uses then the Fine was and he intended that if the Estate to which the warranty is annexed be distroied the warranty also shall be distroied 19. H. 6. 59. 21. H. 6. 45. 22. H. 6. 22. and 27. So if the Estate be avoided the warranty is distroied if it be by the Act of the parties named also he supposed that the warranty is executed and that it shall be intended the same tye upon which the warranty is created as it is 10. Ed. 3. 51. Mauxells case Com if he demand no tye but enter generally into the warranty there shall be execution of all warranties and shall bind all his rights for otherwise all the Estates tayl cannot be bound by that But where the Lieu is demanded as where there are three severall Estates tayl limited to one man and upon voucher he enters generally into the warranty all the tayles shall be bound but if he demand the Lieu's which he hath to bind him to warranty there shall be a Barr of that only upon which the voucher is and the remedy is that if he be impleaded by the party that hath made the warranty he shall be rebutted by his owne warranty But if he be Impleaded by a stranger he shall vouche him that warranted that and if warranty be once executed by voucher and Recovery in value though that the Land recoverd in value be a defeasable Title yet the party shall not voucheat another time by the same warranty as it is 5. Ed. 3. Fitz. voucher 249. and 4. Ed. 3. 36. And for that in this case insomuch that the warranty was once executed he shall not vouche againe upon the same warranty Also it is not alledged in the Count that the Plaintiff was Impleaded by Writ of Entry in the Post but in the Per in which he might have vouched and so shall not have this Action where he might have vouched And also he supposed that Sir Henry Rowles shall not have benefit by this warranty without praying aid of those in remainder insomuch that he is but Tenant for life but he supposed that it was no Remainder but reversion for otherwise they are but as an Estate and he may have advantage of the warranty as it seemes without aid praying But not where there is Tenant for life with the reversion expectant And so he concluded and praied Judgement for the Defendant And he cited one Barons Case where Tenant in tayl levies a Fine with warranty and after suffers Recovery And it was agreed by all the Justices that yet the Recovery shall be a Barr to the Remainder notwithstanding that the Estate tayl be altogether barred and extinct by the Fine but Coke cheife Justice said that Wrayâ— cheife Justice would not suffer that to be argued insomuch that it was of so great consequence being the common course of assurances But it seemes that the Recovery shall not be a Barâ— for the Remainders for the causes aforesaid and he said that he was of councell in Bartons Case and thought this Objection to be unanswerable and of this opinion continued Pasche 1612. 10. Jacobi in the Common Bench. Richard Lampitt against Margeret Starkey EJECTIONE Firme upon speciall verdict the case was this Lessee for five hundred yeares devised that to his Father for life the remainder and residue of that after the death of his Father to his Sister the Devisor dies the Sister which hath a remainder takes a Husband the Husband at the request of the Father grants release and surrenders all his Right Tearme and Intrest to the Father which had the Possession And the question was if by that the remainder of the Tearme should be extinct or not And it was argued by Dodridge for the Plaintiff that the remainder remaines that notwithstanding insomuch that this is
a possibility only which cannot be granted surrendred or released and yet he agreed that if Lessee for life grant or demise the land all his Estate passeth without making of any particuler mention of it as it is agreed in 10. Eliz. Dyer And for that when the Lessee hath devised the Lands to his Father for his life that which remaines is only a possibility for it doth not appeare for what yeares the Sister shall have it and for that meerely uncertaine 7. Eliz. Dyer 244. The King Ed. 6. appropriated a Church to the Bishop to take effect after the death of the present Incumbent the Bishop after that makes a Lease for yeares to begin after the death of the Incumbent and void for the uncertainty for the Bishop hath no perfit Estate but future Interest which is meerely impossibility and with that agreed Locrofts Case in the Rector of Cheddingtons Case 1. Coke where Lessee for yeares makes assignement of so many of the yeares as shall be to come at the time of his death and void for the uncertainty insomuch that it is meerely possibility for that which may be granted or surrendred ought to be Interesse Termini at least And he supposed it could not be released insomuch that he to whom the release is made hath all the Tearme if he lived so long and so he concluded and praied Judgement for the Plaintiff Harris Serjeant for the Defendant argued that the first devisee had two Titles one as Executor and another as a Legatee and before entry and after that he had entred also the Law doth adjudge him in as a Legatee and before that he enter he may that grant over notwithstanding that he hath not determined his Election for the Law vests the property and possession of that in him before any entry but to make an election there ought to be some open Act done as it is agreed in Welden Eltingtons Case where that the first devisee which was Executor also made expresse claime to have the Tearm as Legatee and not as Executor and so vested the remainder also see Com. 519. b. And so in Paramore and Yardlies Case Lessee for years devises his Tearme to his Executor during his life to educate his Issues the which the Executor doth accordingly and this open act was resolved to be a good election and in Mannings case 8 Coke 94. b. The Executor which hath the 1. Estate devised to him saith that he to whom the Remainder was limited shall have it after his Death and this resolved to be a good Execution and election and it is there resolved that such Election made by the particular Devisee is a good Execution for him in remainder but here is not this Election to have this as Legatee nor Executor for there is not any overt Act made by which this may be done Secondly he conceived that this is no remainder but Executory devise as it is agreed in Mannings Case and that this may be done by Devise which cannot be done by the party by act Executed and for that he conceived that there is no possibility but an Estate Executed and vested in him which is Executor though there be no election made nor Execution of the Legacy and admitting that it is but a possibility yet he conceived that it is Propinqua possibilitas insomuch that the Tearme is longer then it may be intended that any man might live insomuch that Adam lived but 950. yeares and this is five thousand yeares which is longer then any man in the world ever lived and he said that it is agreed in Fullwoods Case that possibility may be released to a possession and with this agreed the opinion of Strange in the 9 H. 6. 64. And so warranty may be released which is meerly in contingency as it is agreed in Littleton and power of revocation may be extinct by release of him that hath the possession of the Land and so he concluded and prayed Judgment for the Defendant Nicholls Serjeant for the Plaintiff conceived that the Remainder is in Esse and not determined by the Release And first he conceived that the Remainder was executed insomuch that the Release was made at the Request of the Father which was the first Devisee for this shewes his assent and implies that he took notice of his Remainder and assented to it and he sayd it was adjudged in Doctor Lawrences Case that the speaking of these words by the Executors that is that they were glad of the Devise was a good Execution and assent of the Legacy Secondly He conceived that it is only possibility and for that cannot be released or granted and he saith that the Law hath great respect of possibilities that Estates may revert and for that it is adjudged in the 13 of Richard 2. Dower 55. If Tenant for life grants his Estate to him in remainder in tayl for his owne life the Tenant enters takes a Wife and dies she shall not be Indowed but the Tenant for life shall have it againe and it shall be as it had been let to a stranger and to this purpose also he cited 18. Ed. 3. 8. Counter-Plea of voucher 8. And it was adjudged in Middletons Case 5. Coke 28. a. that an Executor before probate of the Will may release a Debt but not an Administrator before Administration granted see Com. 277 278. Fox and Greisbrookes Case and in 6. Ed. 3. Lessee for anothers life rendring Rent the Rent was behind and the Lessor releases to the Lessee all Debts he For whose life dies and there the Release determines and discharges the arrerages for it is a duty and Debitum is Latine as well for Debt as for duty also release bars the Lord and Writ of deceit for reverser of a Fine levied of land in ancient Demesne as it is 7. H. 4 and yet Littleton saith that release of a futrue thing shall not be a barr and for that if Conusee of Statute Merchant release all his Right in the land yet he may extend the Statute 15. assis And so if a mad man release and after come to his wits and dies Quere if the Heire may have a Writ of non compos mentis And he said that it was adjudged in the 25. of Eliz. If an Infant levie a Fine and after he levies another Fine this shall be a Barr in a Writ of error for the reversing of the first otherwise of a release And here to the principall case to a release made by the Son in the life time of his Father without warranty And so upon all these cases he concluded and prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant argued that the acceptance of Release by the first Devisee shall not be execution of the Devise as it was adjudged in Barramores and Yardleys case by the Education of the Issue or a Devise upon condition to pay money and the Executor pays it this is a good execution
defects and with this agreed the expresse Booke of 11 Edw. 3. Fitz. Ayde 32. and so he concluded that it should not be granted Warburton Justice doubted and insomuch that the granting of ayde where it is not grantable is no error but otherwise of the denying of that where it ought to be granted he would be advised But he conceived that the cause for which ayde is granted is not the feeblenesse of the Estate of him which prays it onely but to the intent that they may joyne together and one defend the other for Tenant for life may plead some Plea which he in reversion may plead saving the joyning of Issue in a Writ of Right and he had a Manuscript of the 11 Rich. 2. where Tenant for life the remainder for life the remainder for life was and the first Tenant for life had ayde of them both in remainder and so concluded Coke cheif Justice that aid ought not to be granted in this Case insomuch that he which is the first Tenant hath greater Estate then he in Remainder for his Estate in Remainder is more Remote and uncertaine and to the Book of 11 R. 2. He agreed that the ayd was granted of all in Remainder but there they in Remainder had Estate tayle and he sayd that ayd is to be granted in two Cases in personall Actions to maintain Issue and when Tenant for life prays in ayd of him in Remainder or Reversion without which they cannot answer nor plead nor Issue cannot be deduced but so it is not here for the first Tenant for life may answer and plead to the Issue as well without him in Remainder for life as with him for if Tenant for life Remainder in tayl Remainder in fee if the first Tenant for life be impleaded he shall have ayd of him in Remainder in tayl otherwise if the Reversion had been to the first Tenant for life with a mesne Remainder in Tayle 41 Ed. 3. 42 Ed. 3. 10 Ed. 3. And 11 Ed. 3. Receit 118. Tenant for life Reversion for life Remainder in fee was he in Reversion for life shall be received upon default of the first Tenant for life and if he will not then he in Remainder in fee shall be received and yet he shall not have Wast as it appears by 24 Ed. 3. for this destroyes the first Estate but the receit maintains and preserves it and he sayd that the 11 Ed. 3. Ayd 32. before cited rules this case and so of 4 H. 6. And so he concluded and insomuch that Warburton doubted of it it was adjourned Trinity 10. Jacobi 1612. In the Common Bench. Yet Rowles against Mason See before 57. WINCH Justice argued that the Defendant is not guilty and that the Plaintiff shall take nothing by his Writ for he conceived that the verdict is uncertaine insomuch that it is not found that Livery and Seisin was made upon the Lease for three lives of the Mannor but onely one Memorandum that it was made in the house of the Lord but it is not found that this House was parcell of the Mannor but after it is found that the Lessee by force of this was seised by which it is implyed that it was very well executed and this being in speciall verdict would be very good he conceived there were two principall matters in the Case First Upon the Bargaine and Sale of Trees if they be re-united to the Mannor or remaine undivided Secondly Upon the two customes the which he conceived depend upon a question for the first warrants the second And to the first When a man devises a Mannor for three lives and by the same Deed in another clause bargaines and sells the Trees and then insues the Habendum and this is of the Mannor only and limits Estate of that for three lives without mention of the Trees hee conceived that the Trees passe before the Habendum absolutely and it is not like to a Bargaine and Sale of a Mannor with Trees or Advowson appendant and here the purpose and intent appeares that they shall pass together and as appendant But in the first case they shall passe as a Chattell immediately upon the delivery of the Deed before any livery made upon this to pass the Mannor and if Livery had never been made yet he shall have the Trees see 23 Eliz. 379. 18 Dyer Where a man devises and grants a mannor and trees Habendum the Mannor for one and twenty yeares without mention of the Trees and yet by Windham Periam and Meade against Dyer the Lessee cannot cut and sell the Trees for there was all in one sentence that is the grant of the Trees and the Demise of the Mannor see the 8 Coke Pexells Case how a Grant shall be construed and where that shall be intended to pass Inheritance and where to pass but a Chattell where a man grants a Chattell and ten pound yearly to be payd and in 7 Ed. 4. If a man hath Inheritance and a Lease in one Town and he by one and the same Deed gives Grants Bargaines and sells all to one Habendum the Inheritance to him and his Heires this is no forfeiture of the Lease insomuch that the Fee doth not passe of that so in the Principall Case Fee-simple passeth in the Trees and Free-hold in the Mannor and he conceived that by the Demise over the Land and Trees are not re-united and this he collected out of Herlackendens Case 4. Coke and 12. Eliz. Bendlowes a man made a Lease for anothers life and bargaine and sold the Trees to him for whose life Lessee dyes he for whose life becometh occupant of the Land he shall have severall Estates one Estate in the Land and another Estate in the Trees and so in Ives Case 5 Coke 11. a. Lessee takes a Lease first of Land except the woods and after takes a Lease of the Woods and Trees and they remaine distinct and though that after there are generall words in the Lease that is of all Meadowes Pastures Profits Commodities c. That is not materiall for these shall be referred to all such things which belong to the Land and so he concluded this point that the Trees remain severall from the Land and do not passe to Hoskins by the Demise of the Copy-hold only and so he cannot take advantage of the forfeiture otherwise he did not doubt but that the particular Sum might take advantage of the forfeiture Secondly for the customes he conceived that the first that is that the Copy-holder for life might nominate his Successor and is good and so for the second that such Copy-holder may cut and sell all the Trees growing upon his Copy-hold and he conceived that the validity of the custome ought to be adjudged by the Judges and the Truth of that by the Jury and when it is found true by a Jury and that it hath such antiquity that exceeds the memory of man then this obtaines such priviledge as the
Chancellor and University of Oxford commanding them that they should remove the University to such a place till the Parliament should be ended And after he sent his Writ to them againe which was directed to the Chancellor and University by which he wild that they should returne againe the Parliament being ended by which Writ he conceived that it appeares that the University was not Locall And this for two reasons First insomuch that this Writ was directed to the Chancellor and University and every Writ is directed to a person and not to a place Secondly the Writ that he should move and remove the University which is a thing impossible to do if it should be a place The other Record was 49. Ed. 3. And this declares that there was contention between the Schollers of Cambridge and the Townesmen there and the Schollers went to Northampton and there they made a Petition to the King that they might erect a University and the King sent his Writ to the Maior commanding him that he would not suffer the Schollers to remaine there and that he would there erect a University which proves that a University may be erected at the Kings pleasure and so cannot a place then admitting that a Corporation may consist upon a place yet the University not being a place that shall not be any prejudice to omit it And he cited a case which was adjudged as he said in the 26. of Eliz. which was thus The Deane and Canons of Winsor made a Lease for years by the name of Deane and Canons of new Winsor And this was adjudged no variance and the case of 5. Ed. 4. 5. of the Abbot of Saint Maries in York which see there and he said the Lord Norths Case was thus That Christ Church in Oxford was incorporate by the name of Deane and Canons of Christ Church in Oxford And they made a Feoffment by the name of the Deane and Canons of Christ Church in the University of Oxford and adjudged a good Feoffment And he said that in the argument of this case it was said by Gaudy that if a corporation were made of Dale and after Dale is made into a City they may make a Lease by the name of a City of Dale and the Lord Popham as he said put these cases That is that if a Corporation be founded of Oxford And that they made a Lease by the name of c. In the Precincts of Oxford this shall be a good Lease yet a thing may be within the Precincts of another place and not in the place and in the 32. Eliz. was the case of one Jermin and Wylles that if a Corporation be made by the name of Deane and Chapter of Saint Maries in Exceter is good But they agreed in this case as he said that if it appeare that they cannot be intended allone otherwise it should be and he conceived in the principall case that it is not necessarily that it should be intended the same place and for that he conceived in all those cases that the Lease shall be good and he said that there were neer two hundred Leases upon the same Title for which c. And after this it was argued in Michaelmasse Tearme 1609. 7. Jacobi by the Justices And the opinion of Crook and Williams Justices was that the Lease was good But Fenner and Yelverton to the contrary and Flemming cheif Justice argued that the Lease was not good but he said this should not be absolutely his opinion but moved a composition betwixt the parties But insomuch that the matter was not compounded in the same Michaelmasse Tearme Judgement was praied And Williams Justice brought into the Court a decree out of the Court of Wards concerning the Case which is put in 7. Eliz. Dyer and 1. Coke Porters Case And upon the decree appeares that an Information being exhibited there against the Master and fellows of Trinity Colledge in Cambridge concerning certain Land they made Title to by a Devise made to them by the name of Masters Fellows and Schollers of Trinity Colledge in Cambridge and this Devise was made four and five of Phil. and Mary and the Decree recyted that upon this were two great Doubts and Questions conceived First If this Devise were good and also by the Statute of 1. and 2. Phil. and Mary which inabled to devise to spirituall Corporations And the second point was That where they were incorporated by the name of Master Fellows and Schollars De sancta and Individua Trinitate in the University and Town of Cambridge if this devise made to them by the name of Master Fellowes and Schollers of Trinity Colledge in Cambridge was good and the Decree rehearsed that the opinion of all the Justices in England was First That it was a good Devise within the Statute of one and two Phillip and Mary as it is reported in the Booke before cited Secondly That this was not such a mis-naming of the Corporation which made the Devise voyd and Williams Justice produced this Record as he sayd to fortify his opinion And he conceived no difference between a Grant and a Devise nor no difference when an Estate or conveyance made unto them and conveiance made by them and for that he cited the Case in the 19 H. 8. in Dyer where if a man devise Land to the Abbey of Saint Peters where the foundation is Saint Paul this is a voyd devise and so in a grant And Crooke Justice to the same Intent Yelverton Justice to that Decree shewed by my Brother Williams I conceive a great Difference First a Will and a grant for in case of a Will it sufficeth if they be described by a name by which the Intent of the Devisor may be sufficiently known and a man is intended to be Inops consilij at the time of the Devise made and for that that he hath not any to instruct him oâ— the precise name of the Corporation for which c. And Fenner Justice to the same intent and if a man devise to one and his Assignes as it is a Fee-simple in case of a Devise so it is not in grant and so devise to one and his Children is an Estate Tayl in case of Devise but not in a grant Flemming cheife Justice to the same intent and to the Decree he sayd that this is as good Law as ever he heard in his life but yet he conceived also that there is a great difference between a Grant and a Devise as if a man devise to a Monke the Remainder over this is a good remainder so devise to one the Remainder over and the particular Tenant refuse this is good in a Devise contrary in grant and to the case which is put by my Brother Williams out of the 19 H. 8. Dyer there is a great difference where there is not any such person at all to take there the Devise shall be void as where the Devise to the Abbot of Saint Peter where
brought against Administrators The breach was for not repairing Houses by the Administrators according to a Covenant made by the Intestate The Administrators plead divers Judgements given against them in Bar of the Covenant and that they have not Assetts over HAre versus Savill Trin. 7. Jac. rotulo Action of Covenant brought upon an Indenture upon a special Covenant to pay Rent at certain Dayes therein specified and reserved The Defendant pleads that no Rent was behinde The Plaintiff demurrs to that Plea and it was held by the whole Court to be a bad Plea in Covenant for by that Plea the Defendant confesses the Covenant broken and that Plea tends but in mitigation of Damages MOrdant versus Wats Pasch 17. Jac. vel 7. Jac. rotulo 1532. Action of Covenant brought for a Rent-charge granted for the life of an Estranger and for half a Year after to be paid at the Feasts of the Annunciation of the Virgin Mary and Saint Michael the Archangel and alledge that the Estranger died in February and that the Rent was not paid at the Feast of the Annunciation and so the Covenant broken the Defendant demurres pretending that the Rent was not due untill half a year after the Death of the Estranger and not at the Feast but the Court held the contrary And if the Grantee had died his Heirs should have had it during the Life of the Estranger because it was payable to him his Heirs and Executors If I grant an Annuity for Life and twenty years after these are two severall Grants and the Executor shall have it after the Death of Tenant for Life And Sir Edward Cook said When an express Covenant is made to pay the Rent at divers Dayes an Action of Covenant will lie before all the Dayes of Payment be past but an Action of Debt will not lie untill all the Dayes be past and that in such case Debt doth properly lie upon a Grant of an Annuity for life or years H. 7. Eliz. rotulo 908. LAm versus Tresham Hill 7 Jac. rotulo 2145. The Indentures of Covenant were made between T. Tresham E. Lord Stourton Meriel T. and the Defendant and the Lord Stourton and Meriel never sealed the Indenture and mention thereof was made in the Count Videlicet which Lord Stourton and Meriel were parties to the said Indenture but never sealed The Case was Sir T. T. conveyed one Lease to the Lord Stourton and he to the said Meriel and by the Indenture brought into the Court it was covenanted that the said T. T. M. and L. or one of them at the time of the ensealing and Delivery of the said Indenture was lawfully possessed of and in the Mannour of c. And covenant that the Defendant his Executors and Assignes might and should quietly have and injoy the said Mannour clearly and absolutely freed and discharged or otherwise upon request saved harmless from all Incumberances and former Bargains by the said T. S. E. M. and the Defendant or any of them and the breach was that the Plaintiff was damnified for that the said M. that had the State did not seal and adjudged good PYot versus Lord Saint-John Mich. 7. Jac. rotulo 3214. The Plaintiff had the Reversion of two Houses one in Fee and the other for years and makes a Lease for years with Covenant for Reparations of both Houses and Question was whether the Plaintiff should have one Action or several Actions and adjudged that he should have a joynt Action for both FIsher versus Ameers Hill 8. Jac. rotulo 1061. Action of Covenant brought against the first Lessee after he had assigned over his terme for not repairing and the Question was if an Action of Covenant would lie against the first Lessee upon a Covenant to repair the Houses c. who had assigned his terme to another whom the Lessor had accepted for his Tenant and received the Rent and he suffered the House to be consumed by fire and if the Covenant by such Acceptance were gone as Debt for the Lessor is barred of his Action of Debt for Rent against his first Lessee after he hath assigned and the Lessor accepted the Rent of the Assignee If I covenant that I my Executors Administrators and Assignes shall pay the Rent if I assigne over my terme and the Assignee pay the Rent to the Lessor yet the Covenant lieth against the first Lessee otherwise it is where Rent is reserved and no Covenant to pay it there if the Lessor accept the Rent of the Assignee the Action will not lie against the Executor of the Lessee and Judgement after a Demurrer for the Plaintiff that the Action would well lie WAlter versus Decanum Capitulum Norwici Trin. 9. Jac. rotulo 1414. Action of Covenant brought upon an express Covenant in a voidable Lease and the Question was whether the Covenant be good the Lease being void and it was adjudged Trin. 10. Jac. that the Action would lie although the Lease were void and Mapes case was cited which was Mapes made a Lease of a Parsonage of D. for seven years and did covenant to save the Lessee harmless against B. the person c. in that case it was held if the person sue the Covenant by right or wrong an Action lies upon the Covenant and Sir E. Cook said that if the Lease were originally void yet the Action of Covenant would lie for else a great mischief might happen for a Dean might as to day make a Lease to one and keep it secret and to morrow make another and covenant to injoy it and so avoid the second Lessee If a Lease be good at the beginning and become void after their terminus is the number of years otherwise where it was void at the first if a Dean and Chapter make a Lease contrary to the Statute and reserve a Rent it shall not be void against them so long as the Dean liveth but against his Successor The Lease in question was not void but voidable A Covenant in Law shall go to lawfull eviction although the Lease be void A Covenant real to Warrant and Defend there must be a Title paramount and a lawfull eviction Covenants for Lessees shall be taken beneficially for the Lessees BRight versus Cowper Trin. 9. Jac. rotulo 638. Action of Covenant brought upon a Covenant made by the Merchant with a Master of a Ship Videlicet that if he would bring his Fraight to such a Port then he would pay him such a summ and shews that part of the Goods were taken away by Pirats and that the residue of the Goods were brought to the place appointed and there unladed and that the Merchant hath not paid and so the Covenant broken and the Question was whether the Merchant should pay the Money agreed for since all the Merchandises were not brought to the place appointed and the Court was of opinion that he ought not to pay the Money because the
omit to take them every other year I cannot take them in the third year But for Rent and such other things that are in the Render I ought to have it when ever I demand it as it best pleases me And note that in such case one prescribed for eight Loads of Wood to be cut and taken as appertaining to a Messuage which was held naught by the whole Court for the Prescription should be laid for Estovers to be imployed upon Repairs of the said Messuage or to be spent in it for a man cannot prescribe to have a Prescription to come and cut down my Wood which is as much as I that have the Free-hold can do For the claim to take and sell my Wood cannot be good And the Court held it a good Prescription to prescribe to have Common every other year although you shew not the Commencement as to shew what time of the year when it begins If a man hath Common of Pasture in divers Closes and parcels of Ground where he hath some Land of his own there and in all other cases where one is to prescribe he need not to make his Title to every peice but to say he hath Common in loco in quo c. in t alia and need not to speak of the rest of the Land in the residue of the Feild because he hath Land of his own Common appendant belongeth to arrable Land not to Pasture Land If two Issues be joyned and in the awarding the Venire facias these words Videlicet Quoad triandum tam exit istum quam praedictum alium exit superius junct were omitted and after a Verdict such Default was moved in Arrest of Judgement and the Exception over-ruled and held good notwithstanding that omission The whole Court were of opinion that local things shall not be made transitory by laying the Action in a forrain Shire as for Corn growing in one Shire and an Action of Trover brought in another COmes Cumbr. versus Comitem Dorset It was moved by the Defendant that whereas the Plaintiff had prosecuted a Distring Jur. and onely eleven of the Jury appeared and the Inquest remained to be taken for want of Jurors and that at such time neither Plaintiff nor Defendant desired a Tales and afterwards the Defendant in another Terme prayed a Tales of that Writ which the Plaintiff had prosecuted and the Court denied to grant it because he prayed not a Tales when the Distress was retorned and if he would have a Tales he must purchase anew a Plur. distring and if then the Jury fill not the Defendant may pray a Tales and the Court ought to grant it And note upon the first Habeas Corpus the Defendant shall not have a Tales but in Default of the Plaintiff IF the Chamberlain of the County Palatine of Chester make an insufficient Return to the Court of Common Pleas upon a Writ issued out of that Court the Sheriff shall be amerced because the Sheriff is the Officer responsible to the Court. The King hath power to make and create a Leet anew where none was before A Distress is incident of Right but in a Court Baron a Prescription must be laid to distrain J. Rogers versus Powell My Lord Cook held that the Surrender of a Copy-hold in Tail is not any Discontinuance and Justice Foster of the same opinion In Doctor Husseys case in a Ravishment de gard wherein the Judgement is penal the Habeas Corpus was denied by the Court to be amended being a blank Writ after a Verdict but was adjudged Error For the Proviso in the Statute of Jeofailes 18 Eliz. excepts Actions upon penal Statutes One Jury was impannelled of the Town of Southampton and called to the Bar and made Default and the men of that Town shewed to the Court a Grant made to the Inhabitants of that Town that no Return should be made of the men of that Town to be of any Jury and prayed the Allowance of their Charter and the Court appointed them to plead their Charter and it was done accordingly TRier versus Littleton A special Verdict was found whether Fraud or not Fraud and the Jury did not finde the Fraud expresly but they found Circumstances that the Deed might seem thereby to be fraudulent but the Court will not adjudge it Fraud where the Jury do not expresly finde the Fraud for the Judges have nothing to do with matter of Fact and so by the whole Court no Fraud Tenant for Life Remainder for Life Remainder in Tail Remainder in Fee the first Tenant for Life suffereth a Recovery the Remainder in Tail is barred although the second Estate for Life be no party Baron Feme seised of the Wives Land for Life of the Wife Remainder to the Husband and Wife in Tail and afterwards the Husband doth bargain and sell the Land by Deed inrolled and a Precipe is brought against the Bargainee and he voucheth them in Remainder this is a good Recovery to barr the Estate Tail If an Information be brought against three upon the Statute of Maintenance and two of them appear and the third doth not appear the Plaintiff may declare against the two that do appear before the other appears for it is but a Trespass and Contempt as in Trespass and Conspiracy but it is otherwise in Debt upon a joynt Contract for there the Plaintiff cannot declare against one untill the Process be determined against the other by the opinion of the whole Court If Judgement be entred in Trespass of Oct. Hillarii the Writ to inquire of Damages may bear teste of any other Return of that Terme besides of Octab. Hillarii for the Terme is as one Day and so hath been adjudged upon a Writ of Error in the upper Bench but it is otherwise held in the Common Pleas. If a Bargain and Sale be void in part it is void in all If an Officer or priviledged person of the Court of Common Pleas sue another priviledged man of any other Court whatsoever yet he of the Common Pleas that first sued shall force the other priviledged person to answer in the Common Pleas but if a priviledged man be sued with another as Executor no Priviledge lies Summons and Severance lies between Executors Plaintiffs and if one of the Executors be outlawed or excommunicated he may be demanded and if he comes not shall be severed by an award without Process after he hath appeared and the other shall proceed without him but if he had not appeared then Summons and Severance shall issue out against him FLetcher versus Robson An Extent upon a Statute Merchant issued out against Robson the Cognisor and the Sheriff returned that the Cognisor was possessed of divers Goods and seised of Lands which he delivered to the Cognisee and that the Cognisee accepted of the Land and because the Sheriff did not return that he had not any other Lands Goods or Chattels it was
John W. was seised of three hundred Acres of Land in R. aforesayd of which the place in question called G. is parcell and that 30 H. 6. the sayd John Whithing reciting that whereas N. de la moore 31 E. 1. the Plaintiffs Ancestor Son and heire of H. de la Moore grants to William de la Moore Corsum aque which runs from W. thorow the middle of the Land of the sayd M. And shews further that by meane discents it discends to the Defendant c and so justifies The Plaintiff replies if W. S. was seised of the place where c. and made a Lease thereof to him for yeares and traverses that the three hundred Acres of Land were parcell and Issue joyned upon that and found for the Plaintiff and it was moved in Arrest of Judgement that the Defendant had not made any answer to the Plaintiff and so no Issue joyned for the Plaintiff layes the Trespass in G. in L. the Defendant sayes he was seised of three hundred Acres of which the place c. was parcell but he conveys no title to himselfe but by a course of water thorow the middle of the Land of M. but whose Land that was it doth not appeare and is another thing and therefore an Issue upon that which the Defendant doth not claime is voyd and although Issue be joyned yet it is not helped by the Statute of Jeofailes of 18 Eliz. or 32 H. 8. for it is as no Issue when it is of a thing not in question but if the Issue had been of a matter in question although ill joyned yet it is ayded as Nichols Case is 5 Rep. 43. upon payment pleaded without Deed And Doddridge and Crooke Justices agreed to that but Haughton seemed to incline that it was an Issue and so helped by the Statute FVller against Pettesworth Knight Mich. 11. Iacobi Fuller brought an Action of Trespass against Pettesworth and his Servant for breaking his Close and taking one Cow in D. in the County of B. One of the Defendants plead not guilty the Servant pleads that the Plaintiff holds of Sir Peter P. as of c. in the County aforesayd and for services behinde by the command of his Master he seised the Cow c. The Plaintiff traverses c. and one Venire facias was awarded out of both the Villiages and being found for the Plaintiff it was new moved in Arrest of Judgement by Finch of Grays Inne that two Venire facias ought to have been awarded because the Issue is of things in severall places for if there be severall Issues in one place one Jury shall be onely Impannelled but if in severall places for severall things locall severall Juries shall be but the whole Court held that one Jury onely should be impannelled and one Venu onely should be awarded out of both the places and it is all one as if it had been in one place but it had been otherwise if in severall Counties as 41 Eliz. DAme Petts Case Mich. 11. Iacobi In an Action of Trespass brought by the Lady Petts upon not guilty pleaded the Jury being at Bar the matters following came in question upon the evidence by Haughton and the other Justices If A. be seised of a great Close where c. and a Stranger enter and occupy part of the Close yet notwithstanding A. continues the posaession of the residue whether this shall preserve his possession in the residue and he shall be judged to be in possession of that because it is an intire thing 5 E. 4. 2. and 8 E. 3. 13. Seisin of part of the services is the seisin of the whole and so is Bettisworths Case 2. Rep. The possession of the House is the possession of the Land for the Lessee against his Lessor of that which passes by one demise But if a stranger enter and sever part by metes and bounds nothing is wrought by the possession of the residue Another question was this A Lessee for yeares of ten Acres paying twenty shillings Rent the Lessee is outed of parcell yet he payed all the Rent to him in Reversion the Lessor having notice of the enter whether this protects the Reversion so that nothing is gained by the entry but the interest of the Lessee and shall be no disseisin And Yelverton at the Barr was of opinion that it should be no Disseisin Rithen Sect. 590. saith That so long as the particular Tenant continues his possession so long is the reversion in the Lessor for in such case as to the Lessor the Lessee shall be alwayes deemed in possession by force of the Lease and the reason why the Lessee shall be adjudged in posaession of all as to the Lessor is because the Lessor cannot have notice of the alteration of the posaession for when the Lessee by his owne Act or sufferance doth a thing in alteration of the posaession of which by common intendment the Lessor cannot have or take notice there the Law will not prejudice the Lessor And see for that Farmers Case in the third Rep. 79. If Tenant for life levy a Fine having Land in the same Villiage this shall not bind the Lessor if five yeares pass before he take notice of what Land the Fine is levied And the same Law if Tenant for life make a Feofment to one who hath land within the same Village levies a Fine and in this cafe if the Lessee hath continually payd all his Rent the Lessor cannot intend or suspect but that the Lessee is absolute Tenant of the whole and in Farmers Case it is sayd That if the Lessor levy a Fine the Disseisee is barred without claime for it is impossible but he to whom the wrong is done shall presently know it But if he that hath the particular estate by Grant or trust reposed in him shall secretly practice although he pay the Rent and continue posaession yet it is otherwise But the Reporters opinion was that if in the principall case no Rent had been reserved then the Reversion had been devested by the entry for there had been no act done to mislead or hinder the knowledge thereof and also although rent be reserved and all payd yet if he had express notice thereof the reversion had been devested And secondly if it should be a Disseisin a great mischeif would follow for if a discent should be it would take away the Lessors entry and yet no fault in them because in common presumption the Lessee alwayes continued Tenant but Cook of a contrary opinion for he said it could not be denyed but that the Lessee is out of the posaession and then it follows of necessity that the Lessor must be out of his reversion And as to notice to make his claime he must take notice at his perill 4 M. Dyer 143. b. But note that this is when the Law intends that he may take notice which it will not intend in this Case Haughton was of opinion that it was a
shall be said conclusion and agreement within the said Provision and for that as it seemes it is so uncertain as going about but admitting that it is good yet it shall be good but to some purpose but not to restraine the Daughter which was Tenant in taile to do lawfull Acts as to suffer a Recovery or to levy a Fine as it is resolved in Mildmayes case 6 Coke 40. By which it appears that she hath as well power to dispose that by Recovery as of Fee simple notwithstanding that the Reversion remaines in the Giver as it appears by 12 Ed. 4. 3. For all lawfull Acts made by Tenant in taile shall binde the Issue as 44 Ed. 3. Octavian Lumbards Case Grant of Rent for Release of right is good and shall binde the Issue for there are foure incidents to an Estate tayle First That he shall not be punished for Waste Secondly That his Wife shall be indowed Thirdly That the Husband of the Wife Tenant in Tayle shall be Tenant by the Courtisie Fourthly That Tenant in Tayle may suffer common recovery So that a Condition which restraines him so that he cannot suffer a common Recovery is void for it is incident to his act and it is a lawful Act and for the benefit of the Issue as it is intended in respect of the intended recompence and he said that a Feoffment to a woman covert or infant shall be conditionall that they shall not make a Feoffment during their disability is good for that the Law hath then made them disable to make a Feoffment so a Lease for life or years upon condition that he shall not alien is good in respect of the confidence that was reposed in them by the Lessor and so concluded that the Condition in this Case which restraines Tenant in Taile generally from alienation First was uncertain in respect of the words conclude and agree Secondly for that it was against Law so void and for that prayed Judgment for the Defendant Hutton Serjeant for the Plaintiff he argued that the verball agreement of the Wife shall bind her notwithstanding the Coverture for that that this is for her benefit for in performance of the said agreement she suffers a recovery to the use of her selfe and her Heires and so Dockes the remainder and he agreed the cases put by the other part which concerne free-hold but he said in cases of Limitation of Estates as if Limitation be if a Ring be tendred by a woman that the Land shall remaine to her and she takes a Husband and after that she and the Husband tender the Ring this shall be sufficient tender and it shall be intended the Act of the wife and 10. H 7. 20. a. A man devises his Lands to a married woman to be sold she may sell them to her Husband And though that it be not any agreement of the Husband only yet here is an act done in a Precipe brought against the Wife and she vouches over for that is not only an agreement but an Act executed upon which the Estate Limited to the eldest Sister shall take effect and the 2. Coke the 27. a. Beckwiths Case If the Husband and the Wife joyne in a Fine of Land of the Wife the Wife only without the Husband may declare the use of that And he intended it was a Limitation and not a condition and so it might be well at this day in case of devise and then the Act shall be that the Estate is Limited to have beginning being made the Estate of the youngest Daughter which made the Act shall be destroyed and determined for if it be a condition then all the Daughters shall take advantage of that and this was not the intent of the Devisor for they are the parties which should be restrained by the devise from Alienation And also he cited Wenlocke and Hamonds Case cited in Bractons Case 3. Coke 20. b. Where a Copy-holder in fee of Lands devisable in Burrough English having three Sons and a Daughter deviseth his Lands to his eldest Son paying to his Daughter and to his other Sons forty shillings within two yeares after his death the Devisor maketh surrender according to the use of his Will and dieth the eldest Son admitted and doth not pay the money within the two yeares and adjudged that though the word paiment makes a condition yet in this case of devise the Law construes that to a Limitation and the reason is there given to be for that that is it shall be a condition then that shall discend upon the eldest Son and then it stands at his pleasure if the Brothers or Sister shall be paid or not and 29. Assis 17. cytes in Nourse and Scholasticas Case Commentaries 412. b. where a man seised of Lands in Fee devisable deviseth them to one for life and that he should be Chapleine and single for his Soule all his life so that after his decease the sayd tenements should remaine to the Commonalty of the same Towne to finde a Chapleine perpetuall for the same Tenements and dyed and adjudged that this shall not be a condition of which the heir shal take advantage but limitation upon which the remainder shall take effect and also he cyted S. E. Clâ—ers Case 6 Coke 18. a. b. 11 H. 7. 17. Pennants Case 3 Coke 65. a. That if a man makes a Lease for years upon a condition to cease that after the condition is broken grantee of reversion may take advantage of that so he said in the case at the Bar when the first Estate is determined and destroyed by the limitation then he to whom the Remainder is limited shall take advantage of that and not the Heire for as he intended an Estate of Inheritance may as well cease by limitation of devise as tearme as in 15 Ed. 4. Lands are given to one so long as he hath heires of his body the remainder over and if he dye without heires of his body the remainder over shall vest without entry and the Free-hold shall vest in him and 2 and 3. Phil. and Mary Dyer 127. and 56. Fisher and Warrens Case If a man devise Lands to one for life the remainder over upon condition that if he do such an act that his estate shal cease and he in remainder may immediately enter there he in remainder shall take advantage though he be a stranger for that that the Estate determines there without re-entry And he saith that the Case of Wellock and Hamond cyted in Barastons Case was a stronger Case then this for there the limitation was upon Fee-simple and here it is upon an Estate tayle and the Law hath favourable respect to devises as in Barastones Case is alteration of words for the better exposition of that for Shall is altered to Should and also see 16 Eliz. Dyer 335. 29. for the marshalling of absurd words in a Will for the expounding of that and 18 Eliz. Cheekes Case he cyted to be adjudged that
if a man devise his Lands to his Wife and after her death to his Son and the remainder to his sayd Wife in Fee-simple the Husband of the Wife having Issue shall not be Tenant by the Curtesie for alwayes the Judges have made such favourable construction of Wills that if Estates devised by Will might be created by act executed in the life of the party then it should be good by devise and to the objection that conclusion and agreement is uncertaine and so for that shall be voyd he saith that it is not so uncertaine as going about or resolve and determine an attempt or procure as in Corbets Case first of Coke 83. b. or as attempt or endeavour as in Germins and Arscotts Case there cyted fol. 285. a. See 6 Coke 40. a. Mildmayes Case and also the words subsequent are repugnant that the Estate tayle shall cease as if the Tenant in tayle were dead and not otherwise which is absurd and repugnant for the Estate tayle doth not determine by his death if he doe not dye without Issue And also he sayd that it is more reasonable that the perpetuity in Scholasticas Case for here the limitation depends upon agreement which is a thing certaine upon which the Issue may be joyned and also the condition doth stand with the nature of the Estate tayle and for the preservation of it and Recovery is against the nature of it for this destroyes the Estate tayle and is onely a consequent of it and not parcell of the nature of the Estate and this is the reason that Littleton saith That an Estate tayle upon condition that he should not alien is good for that preserves the Estate and also preserves Formedon for him in reversion if there be a discontinuance and with that agreed 13 H. 7. 23. 24. and he sayd that there was a Judgement in the point for his Clyent for another part of the Land and he cyted 31 Edw. 5. Fitz. Feoffment placito the last and Fitzherberts Natura brevium Ex gravi querela last Case and so concluded and prayed judgement for the Plaintiff and this Case was argued againe by Shirley Serjeant for the Defendant and he intended that the agreement is voyd to the Wife and shall be intended the agreement of the Husband onely for a marryed Wife cannot countermand Livery 21 Assis 25. and if a Woman makes a Feoffment upon condition to enfeoff upon request made by her and she takes a Husband she cannot make request after coverture 35 Assisarum So that he intended that this shall be intended the agreement of the Husband onely and not of the Wife and yet he argued that Declaration of a use by a marryed Wife shall be good according to Beckwiths Case But he sayd That the reason of that is for that that she is party to the Recovery which is a matter of Record and as long as the Record remaines in force so long the Declaration of the use shall be good and also he argued that if the condition being that if the Wife conclude or agree to any act to make discontinuance that then c. that that shall be intended unlawfull acts and Recovery is no unlawfull act and for that shall not be within the restraint of the Condition as the Earl of Arundels Case 17 Eliz. Dyer 343. and admitting that it is a limitation yet it shall be of the same nature as a condition and as well as a condition that Tenant in tayle shall not suffer Recovery is voyd So also is such Limitation void and so it was intended before the Statute of Donis Conditionalibus and it appeares by the pleading that the parties did not intend to take advantage of the agreement for it is pleaded that at the time of the Recovery suffered the youngest Daughter was seised of an estate tayl the which could not be if her estate were determined and destroyed by the agreement and conclusion so that the last words make the Forfeyture for the first are not unlawfull and before the execution of the Recovery the estate tayl is determined and so he concluded and praied Judgement for the Defendant Barker Serjeant argued for the Plaintiff It shall be intended a Limitation and not a condition for a Will shall have favorable construction according to the intent of the Devisor for a Joyntenant may devise to his Companion 49. Ed. 3. and Fitz. Na. Bre. Ex gravi querela last case A man devises Land to his Wife for life upon condition that if he marry that it should remain over to his Son in tayl and the Wife marries and the Son in remainder sues Ex Gravi querela by which it appeares that it was a Limitation and not a condition and 34 Ed. 3. devise was to one for life upon condition that if his Sonn disturbed him that then it should remaine over in taile upon disturbance he in Remainder in tail brings Formedon by which it appears it was a Limitation and with that agrees all the Justices in 29 Assisarum 17. And Wellock and Hamonds Case cited in Barastons Case before and 18. Eliz. Dyer If Land be limited to no third person by the Devise then the Heir shall enter for breaking the condition and also he said that it appears by Littleton and 13 H. 7 23. and 24 and 20 H. 7. and 17 Eliz. 343. the Earle of Arundells case which conditioneth that Tenant in taile shall not alien standeth with his Estate but not with Fee simple and so it is adjudged in Nowes and Scholasticas Case which is adjudged in the point which as he saith cannot be answered and the Words of the Condition are not that her Estate taile shall cease as if shee had been dead but as if she had not been named which is not so repugnant or absurd as the other and this compared to 34 Ed 3. Where the Estate was limited till it was disturbed And he also argued that the agreement of the Wife shall be a forfeiture notwithstanding the coverture for when the Estate is granted upon such condition he which hath the estate shall take it subject to the condition as if two Lessees are and one Seals the Counterpart onely yet the other shall be bound by the Covenants contained in it and 33 H. 6. 31. a Woman disavows to be Executor notwithstanding that shee was marryed and if Precipe had been brought against the Husband and Wife the default of the Husband shall binde the Wife and so she shall be punished for waste made during the coverture and so concluded and prayed judgement for the Plaintiff Foster Justice that an Estate of Free-hold shall not cease by agreement or conclusion without entry for it is a matter of Inheritance and Free-hold and it is not like to 33 H. 6. 31. which concerns Chattels and Goods and Walmesley Justice accorded with him Warburton Justice it hath been adjudged in Scholasticas Case that the condition was good and therefore he would not deliver his
condition to re-enfeoff and she with her Husband makes the re-enfeoffment it is good so a Woman being Lessee for Life and with her Husband attorn upon a Grant of Reversion is good and shall binde the Wife after the Death of the Husband 3 Ed. 3. 42. 4 Ed. 3. Attornment 12. 15 Ed. 3. Attornment also this Estate was made to the Wife when she was sole and for that it shall be accounted her folly that she would take such a Husband that would forfeit her Estate but with that agreed the reason of the Booke of 20 H. 6. 28. Where a woman Tenant was bound by the ceasing of her Husband and so he concluded and prayed Judgment for the Plaintiff and so it was adjourned see another argument of this case in Michaelmas Tearm 9. Jacobi 1611. by Haughton and Nicholls Serjeants Pasch 9. Jacobi 1611. In the Common Bench. Pitts against Dowse IN an Ejectione firme upon not guilty pleaded The Case was this A man makes his Will by these words I bequeath all my Lands to my Son Richard except my Chauntery Lands And I devise all my Chauntery Lands to be devided amongst all my Children men and women alike except my Son Richard And if Richard die without Issue the remainder to A. My second Son the remainder to B. My third Son the remainder to C. My fourth Son the remainder to my next of blood and so from Heire to Heire And so likewise I would to be done upon my Chauntery Lands and Tenements in case all my aforesaid Children die without Issue Then I would the one halfe of my Chauntery Lands to remaine to the next of kin and the other half to the Hospitall of M. And the question was what estate the Heire of the eldest Son shall have in the Chauntery Lands and it was argued by Dodridge the Kings Serjeant that the Heire of the eldest Son shall have estate tayl in the Chauntery Lands the Devisor devises no estate to Richard his eldest Son in the Chauntery Lands nor limitts any estate of that in certaine and for that he seemed that the youngest Sons and Daughters shall be Tenants in Common for life and by this manner of Interpretation every part of the Will shall be for first he excludes Richard himselfe so that he shall have nothing in that and then by the Limitation to the younger Children to be equally divided between them makes them Tenants in Common see 28. H. 8. 25. Dyer 155. And he cited Lewin and Coxes Case to be adjudged Michaelmasse 41. and 42. of Eliz. Pasche 42. Eliz. Rot. 207. Where a man devises Lands to his two Sons to be equally divided and adjudged that they are Tenants in Common so devise to two part and part like and equally divided and equally to be divided is all one and for that there is no other words to make an estate of Inheritance it shall be an estate for life and the remainder shall be directed according to the estates limited of the other Land And he seemed that the words in the last sentence all my aforesaid Children shall extend to Richard his eldest Son as well as to the others and so all the Will shall stand in his force which may be Objected that Richard the eldest Son shall be excluded out of the Possession and for that see 6. Eliz. Dyer 333. 29. Chapmans Case and also he cited one case to be adjudged Trinity 37. Eliz. Rot. 632. betweene Bedford and Vernam where a man deviseth all his lands in Alworth and afterwards purchaseth other Lands in the same Town and afterwards one comes to him to take a Lease of this Land newly purchased which the Testator refused to Let. And said that these Lands newly purchased should goe as his other Lands And upon his Death bed adds a Codycell to his Will but saith nothing of his purchased Lands and adjudged that the purchased Lands shall passe and so concluded and praied Judgement Harris Serjeant that it is a new Sentence and Richard is excluded and it shall be a good Estate tayl to the youngest Children and foresayd Children shall be intended them to which the Chauntery Lands are limited see Ratcliffes case 3. of Coke adjudged that they shall be Tenants in Common by the devise to he equally divided and thall not be surviving but every youngest Children shall have his part in tayl though that the first words do not containe words of Inheritance yet the last words in case all my Children die without Issue declares his intent that they should have an estate tayl see the 16. of Eliz. Dyer 339. 20. Claches Case that when he hath disposed of part devised to Richard then disposeth of the residue and the sentence begins with And so likewise and that shall be intended in the same manner as he had disposed of the Lands devised to Richard for he hath devised the remainder otherwise that is to an Hospitall and so concludes and praies Judgement accordingly Coke cheife Justice saith that it was adjudged between Coke and Petwiches 29. Eliz. that if a man devise a house to his eldest Son in tayl and another house to his second Son in tayl and the third house to the third Son in tayl and if any of them die without Issue the remainder to the other two equally this shall be but for life for this enures to the quantity of the Land and not to the quality of the Estate And he said that Richard is excepted without question for it is but a Will and every of the youngest Sons therein shall have the Chauntery Land one after another and Richard shall have no part and the Chauntery shall have nothing till they all are dead and he likened that to Frenchams Case where Lands were given to one and to his Heires Males and if he died without Issue the remainder over the Issues Females shall not take though that it be if they die without Issue for expresse it makes to cease only and so it was adjourned Petoes Case PEto suffers a common Recovery to the use of himselfe for life the remainder to his eldest Son in tayl with diverse remainders over to the intent that such Annuities should be paid as he by his last Will or by grant declares so that they did not exceed the summ of sixty pound and if any of the said Rents be behind then to the use of him to whom the Rent shall be behind till the Rent be satisfied with clause of distresse Rent of twenty pound was granted to his youngest Son for his life the grantee distraines for the Rent and in Replevin avowes the Plaintiffe replâ—es that by the non-paiment the use riseth to the youngest Son by which it was objected that the Rent shall be suspended Quere if without demand or if the distresse shall be demanded or that the use shall not rise till after the distresse and to the distresse well taken and agreed by all that the Plaintiff shall take nothing by
the street shall be devisable and he claimes by force of a Devise made according to that custome and adjudged that the custome is not good for it is inconvenient that in one self same ancient Town one house shall be devisable and another not and upon that the Plea was amended so here custome that a Copy-holder may sell all the Trees is inconvenient for it doth not appeare that this Custome extended to any other but to him Secondly this Custome is against the Common Wealth for every Custome ought to have preservation and maintenance and that shall not be here for when one Copy-holder hath sold all the Trees the Successor shall not have any Boots nor Fire and so by the same reason he may pull down the house And so this tends to destruction and rests in the will of a man if he will distroy or not And this is inconvenient that such power should be given to one which hath but an estate for life as in 14. Ed. 3. Barr 277. Copy-holder pleads Custome of a Mannor that that Copy-holder which comes first after a windfall falne shall have it and resolved to be void Custome for that it rests in the will of a man if he will finde that or not So in 5. H. 7. 9. Custome that if one find Beasts doing Dammage that he may distraine them and have foure pence for his Dammages and adjudged void Custome for the Dammages are nncertaine and for that it is no reason that the Fine shall be certaine and 19. Eliz. Dyer 358. 46. Custome that all Devises and Leases granted for more then six yeares are meerly void forthwith is a void Custome because contrary to common reason and the liberty of one which hath Fee simple So 2 Hen. 4. 24. Custome that the Tenants of the Mannor shall not use their Common till the Lord put in his Beasts is void for it should not depend on the Will of the Lord So in the principall case the Lord cannot grant Copy-hold Estate in reversion for it depends upon the Nomination of his Tenant and for that the Custome shall be void Thirdly The Copy-holder hath prescribed to do a thing which is contrary to his Estate and doth not cohere with his Estate that is that Lessee for life shall cut the Trees for he hath but a speciall property in that and not the â—bsolute property and it is like to a Case in 19 Ed 3. Feoffments 68. and 19 Assise 9. Where Commander of an Hospitall prescribes that he and his Predecessors which have had the same office have used to make Leases for lives and in an Action brought by the Prior it was adjudged that the custome is void and so by consequence the Lease was void for the Commander hath no Estate to make it so in Forsâ— and Hemlings Case 4. Coke and 3 Ed. 3. F. Dat. Custome that a married Wife may make a Will is void for it doth not stand with the quality of her person so here it is not with the quality of the Estate but it may be objected that it is a greater Estate then an Estate for life for it is perpetuall Free-hold to that it may be answered in this case it is no greater Estate then for life for the Copy-holder hath only made nomination but he which was nominated was not admitted so that the Tenant hath no greater Estate nor the Lord hath granted greater Estate then for life but admit that he be Tenant for life with a Remainder for life to him to whom the nomination is made yet he cannot do such an act and for that the cutting down of the Trees shall be a forfeiture of his Estate by custome by which the Estate is created and copy-hold Lands are not as other Lands which if they were let for Life at the common Law the Tenant were dispunishable for wast till the Statute of Glocester for it was the Folly of the Lessor to make a Lease to such a person which would make wast and for that as the benefit and Priviledge of the copy-holder remaines so the benefit of the Lord shall not be abridged and so he prayed Judgment for the Plaintiff Haughton Serjeant seemeth the contrary for the Defendant and he agreed that Customes ought to be reasonable and if they be generally inconvenient they cannot be reasonable and to the first exception to prove that it is a new Custome that is that it is found that he is onely Tenant in possession without saying Without Remainder as it was in the first Case to that he thought if it were true that the Copy-holder hath such priviledge that he might nominate his Successor it is not materiall and to the lessening of the Fine that is found very certaine for he that is nominated at the first requires admittance and if the Lord refuse that he shall be admitted for such a Fine that the Homage Assess and so it is found and that is very certaine and the rather for that that this is a speciall Verdict Also he agreed as before That Custome ought to be reasonable and if it be generally inconvenient though it be not mischeivous yet it shall not be good and to the Case of 40 Assis 37. Custome to devise the Tenements on the South side of the Street is not good for that that Custome cannot be in one particular place certaine and also he agreed the Case of Windfall for that tended to charge the Lord 3 Eliz. Dyer 299. 57. 58. Custome to have Herriot the best Beast and if that be put out of the way before seisure then the Lord may seise and take the Beast of any other mans there arising and lying downe to his owne proper use and the custome held voyd and unreasonable So the custome in 20 H. 7. to have so much for every Pound-breach is voyd but this custome is meerly between the Lord and Tenant and the custome hath made that discendable Inheritance and also may have reasonable beginning and the Lord hath benefit for that that is his Fine for the admittance of him which is nominated and custome hath created other Estates as Grant to him and his is good by the custome and so the Cases of 21 Ed. 4. and 22 Ed. 4. before cyted for the turning of Plough upon the Land of his Neighbour So the custome if the Lord feed the Beasts of his Tenant that he may Fold them and so he concluded that the first custome to make nomination is good and to the second custome he agreed that bare Copy-holder for life could not Prescribe to cut and sell all the Trees no more then custome that Tenant for life may devise as 35 H. 6. But here the Tenant hath perpetuity in his Estate and may nominate his Successor and as well as the Common Law allows Tenant after possibility of Issue extinct to make waste so may custome allow Tenant for life with such nomination power to cut and sell the Trees Also he intended admitting the custome not good
Mannor held in cheife and of other Mannors and Lands held of a Common person in socage and had Issue foure Sonns Thomas William Humphrey Richard And by his Deed 12 Eliz. covenants to convey these Mannors and Lands to the use of himself for his life without impeachment of wast and after his desease to the use of such Farmors and Tenants and for such Estates as shall be contained in such Grants as he shall make them and after that to the use of his last will and after that to the use of VVilliam his second sonn in tayle the Remainder to Humphrey his third Son in tayle the Remainder to Richard the fourth Sonn in tayle the Remainder to his own right Heires with power of Revocation and after makes a Feoflment according to the covenant and after that purchases eight other acres held of another common person in socage and after makes revocation of the said Estates of some of the Mannors and Lands which were not held by Knights service and after that makes his Will and devises the Land that he had purchased as before and all the other Land whereof he had made the Revocation to Thomas his eldest son the Heirs Males of his body for 500. years provided that if he alien and dye without Issue that then it shall remaine to William his second sonne in tayle with the like proviso as before and after dyed and the Jury found that the Lands whereof no revocation is made exceeds two parts of all his Lands Thomas the eldest sonne enters the 8. Acres purchased as before and dyes without Issue male having Issue a Daughter of whom this Defendant claimes these eight Acres and the Plaintiff claims them by William the second Son And Dodridge the Kings Serjeant argued for the Plaintiff intending that the sole question is for the 8. acres purchased and if the devise of that be good or not by the Statute of 34. H. 8. And to that the point is only a man which hath Lands held in cheife by Knights service and other Lands held of a common person in Socage conveys by act executed in his life time more then two parts and after purchases other Lands and devises those if the devise be good or not And it seems to him that the devise is good and he saith that it hath been adjudged in the selfe same case and between the same parties And this Judgment hath been affirmed by writ of Error and the devise to Thomas and the Heirs males of his body for 500. years was a good estate tayle and for that he would not dispute it against these two Judgments But to the other question hee intended that the devise was good and that the Devisor was not well able to doe it by the Statute of 34. H. 8. And hee intended that the statute authoriseth two things 1. To execute estates in the life time of the party for advancement of his Wife or Children or payment of his debts and for that see 14. Eliz. Dyer and that may be done also by the common Law before the making of this statute But this statute restrains to two parts and for the third part makes the Conveyance voyd as touching the Lord But the statute enables to dispose by Will a parts where he cannot dispose any part by the Common Law if it be not by special Custome but the use only was deviseable by the common Law this was altered into possession by the statute of 27 H. 8. and then cometh the statute of 32. and 34. H. 8. and enables to devise the Land which he had at the time of the devise or which he purchased afterwards for a third part of this Land should remain which hee had at the time of the devise made and if a third part of the Land did not remain at the time of the devise made sufficient should be taken out of that but if the Devisor purchase other Lands after hee may those wholly dispose And for that it was adjudged Trin. 26. Eliz. between Ive and Stacye That a man cannot convey two parts of his Lands by act executed in his life time and devise the third part or any part so held by Knights service and also he relyed upon the words of the statute that is having Lands held by Knights service that this shall be intended at the time of the devise as it was resolved in Butler Bakers Case That is that the statute implies two things that is property and time of property which ought to be at the time of the devise But here at the time of the devise the Devisor was not having of Lands held by Knights service for of those he was only Tenant for life and the having intended by the statute ought to be reall enjoying and perfect having by taking and not by retaining though that in Carrs Case cited in Butler and Bakers Case rent extinct be sufficient to make Wardship yet this is no sufficient having to make a devise void for any part Also if the Statute extend to all Lands to be after purchased the party shall never be in quiet and for that the Statute doth not intend Lands which shall be purchased afterwards for the Statute is having which is in the Present tence and not which he shall have which is in the Future tence and 4. and 5 P. and M. 158. Dyer 35. A man seised of Socage Lands assures that to his Wife in joynture and 8. years after purchases Lands held in cheife by Knights service and devises two parts of that and agreed that the Queen shall not have any part of the land conveyed for Joynture for this was conveyed before the purchase of the other which agrees with the principall case and though to the Question what had the Devisor It was having of Lands held in Capite insomuch that he had Fee-simple expectant upon all the estates tayl he intended that this is no having within the Statute but that the Statute intend such having of which profit ariseth and out of which the K. or other Lord may be answered by the receipt of the profits which cannot be by him which hath fee-simple expectant upon an estate tayle of which no Rent is reserved and also the estate tayle by intendment shall have continuance till the end of the world and 40. Edw 3. 37. b. in rationabili parte bonorum it was pleaded that the Plaintiff had reversion discended from his Father and so hath received advancement And it seems that was no plea in so much that the reversion depends upon an estate tayle and upon which no Rent was reserved and so no advancement So of a conveyance within this Statute ought such advancement to the youngest sonne which continues as it is agreed in Binghams Case 2 Coke that if a man convey lands to his youngest sonne and he convey that over to a stranger in the life time of his father for good consideration and after the Father dies this
executed for then it would be too late for then the Estate is transferred to another as it was in the cases put by Anderson in Corbetts Case But here all the Estate limited to him which made the forfeyture shall be determined and also he intended that the Reason that the Replication containes that the parties being in actuall possession are only to satisfie the words of the Condition And so he concluded and praied Judgement for the Plaintiff In dower the Demandant recovered Dower of tenths of Wool and Lamb and how execution shall be made was the question And the Justices intended that the Sheriffe might deliver the tenths of every 3 yard land and assign the Yard Lands in certain Bâ—t after it was conceived that this would be uncertain and unequall and for that the Sheriffe was directed to deliver the third part of all in generall and yet the first was agreed to be good but onely in respect of Inequalities as in dower of a Mill the third Toll dish and of a Villayne the third dayes work as in 23 H. 8. And it was also agreed that the Sheriffe may assign this dower without a Jury It was moved if an Attachment be granted against a Sheriffe for contempt after he is removed out of his Office and the Justices intended that not insomuch that now he is no Officer and for that he cannot be now fyned and without fyne they did not use to Imprison but the Judges would be advised to see the Presidents of the Court in such a case Mâ—chaelmas 1611. 9. Jacobi in the Common Bench. Kemp and Philip his Wife James and Blanch his Wife Plaintiffs against Lawrere and Trollop and the Wife of Gunâ—er Executrix during the minority of the Wives of the Plaintiffs THe case was An Executrix during the nonage for so it was and not Administratrix that is shee was ordained Executrix till the Wives of the Plaintiffs came to their full age or were marryed and then they should be Executrixes And this Executrix during the minority brought an action of Debt and recovered and before Execution the women Executrixes took Husbands and brought Scirefacias upon the Record to have Execution upon the Judgment against these Defendants as Ter-tenants which pleaded specially that they had nothing in the Free-hold nor in the Land but only a lease for yeares and that the free-hold was in another stranger upon which Plea the Plaintiffs demurred in Law And Nicholls Serjeant for the Plaintiffs that there is the difference betwixt this Executor and an Administrator during the minority as in 26 H. 8. 7. a. if an Administrator have Judgment and dyes before Executors or other have sued out their Letters of Administration they shall have no execution of this Judgement insomuch as he comes in paramount the first Administrator and as immediate Administrator to the first Intestate as it is agreed in Shelleys case So the Administrators of one Executor shal not have execution of a Judgment given for the Executor as it is resolved in Brudenels case 5 Coke the 9. b. And in 21 Edw. 4. It is agreed if two are made Joynt-Executors and one of them dies the other shall be sole Executor to the Testator and if hee make his Executor and dyes his Executors shall be Executors to the first Testator And also there is in Fox Gretbrooks Case in the Com that one may be Executor for certain years and another after and this differs from the other cases for in this case all these Executors were in privity one to another but in the other case one comes paramount the other But here they are all made by the first Testator and the Will And he cyted the 2 Case in the Lord Dyer and 18. and 32 Edw. 3. there cyted where a Purchasor brought a Writ of Errour and was not privy to the first Record And Grantee of a Reversion brought a Scire facias against Conusee of a Statute-Merchant alledging that he had received satisfaction So if a Parson of a Church recovers an Annuity and after the Church is appropriate to a house of Religion the Soveraign of the said house shall have a Scire facias And so if union be made of two Benefices and yet in all these cases there was no privity to the first Judgement so he in reversion shall have Errour in Attainâ— upon Judgment against his Lessee for life and the Reason is given in Brudenels Case that is they which may have prejudice may have scire facias and it is not like where two joynt-Joynt-tenants are and one makes a Lease for years and dyes the other shal have the Rent insomuch that he comes in by survivorship and not in privity But here the Executors come in in privity as in case of two Executors are joyntly one â—yes the other which survives shall have Execution of Judgement given for them for Administrator during the nonage is only to the use commodity and profit of an Executor and of a Testator so that he being Executor to the Testator he shall have execution And to the second that is that the Defendants have nothing but for yeares and that the free-hold is to a stranger he intended that this is not good yet he agreed that in scire facias where a free-hold is to be recovered speciall non-tenure is a good plea as in 8 Edw 4. 19. and 8 H. 6. 32. but not of the contrary and there also generall non-tenure is no plea But here where the free-hold is not to be recovered nor one nor the other is a Plea for it may be averred that the Defendant hath a release from him that hath the reversion and as in 14 H. 4. 5. in scire facias to accompt against an Executor who pleads that the Testator was never his Bayliffe to give an accompt and yet it is agreed that this hath been a good plea for the first Defendant and this is the reason that it was not taken nor was allowed for a good plea in the 11 H. 4. 11. Insomuch that this amounts to non-tenure and in 44. and 45. Eliz. Mich. Rot. 834. it was adjudged in Scire facias where the Defendant pleads that he was not Tenant of the Free-hold and adjudged no plea And so he said it was adjudged in the case of All-soules Colledge in Scire facias to have execution of a Judgment in Ejectione firme and the Defendant in the Scire facias pleads that he was but Lessee for years and adjudged no Plea insomuch that nothing was to be recovered but only the tearm and not the Free-hold and so he concluded and prayed Judgement for the Plaintiff in Scire facias Harris Serjeant argued to the contrary and he intended that the Return of the Sheriffe is void insomuch that the Writ commanded him to give notice to the Tenants of the Land in Fee-simple and hee did not return that those which he had returned were Tenants of the Land in Fee-simple and
hath the Copy-hold Estate for life in remainder was the question And it was argued by Harris Serjeant that the Estate of Fines in the body of that binds all persons but onely some which have Infirmities and by the saving Rights Titles Claimes and Interests are saved But Title comes in the conditionall perclose of saving that is so that they pursue their Title Claime and Interest c. By way of Act or lawfull Entry within five yeares next after the said proclamations had and made So that in this case the principall matter to be considered is what thing is operated by the acceptance of the Bargaine and Sale for if by that the remainder of the Copy-holder be turned to right then insues that the Fine shall be a Barr And it seemes that this determines the first Estate for life and he agreed that it cannot be a surrender insomuch that there is a mesene remainder as it is 37. H. 6. 17. b. 4. H. 7. 10. But this Lease to commence at a day to come cannot be a surrender but shall be determined and extinct by acceptance of a new Lease as it is there and in 22. H. 7. 51. a. agreed and so it was adjudged in Hillary 30. Eliz. between Wilmottand Cutlers Case that if a Husband which was seised of a Copy-hold Estate in right of his Wife accept an estate for life this determines the copy-hold Estate which he hath in right of his Wife in possession So if Lessee for yeares accept an estate of one which hath no Estate yet this determines his Tearme as it was adjudged Hillary 31. Eliz. Rot. 1428. b. That if Lessee for yeares of a Lease made by the Ancester accept an estate of Guardian in Soccage this determines his Lease which he had of the Ancestor and upon that he concluded that in this case the acceptance of a Bargaine and Sale turnes the Copy-holder in remainder to a Right and then it appeares by Saffins Case 5. Coke 125. That he shall be bound though that he hath only Interest and so of Title also and he said that it appeares by Kite and Quarintons case 4. Coke 26. a. that a Right or Title may be of Copy-hold Estate for it is there said by Wray cheife Justice that it shall be with in the Statute of 32 H. 8. chapter 9. of buying of Titles and so concluded Dodridge the Kings Serjeant agreed that the sole question is if any thing be here done to turn the Copy-hold-Estate in remainder into a right for then he agreed that this shall be barred otherwise not and to that hee intended that the first Estate for life shall be sayd to be in Esse notwithstanding the acceptance of the Bargaine and Sale as to all estrangers and especially when it is to their prejudice as if Tenant grant Rent and after surrenders his estate now between the parties the Lease shall be extinct by the surrender but to the Grantee of the Rent it shall be sayd to be in Esse and if during his life he in Remainder also grants a Rent hee shall hold the Land subject to both the Rents though that the grants be both to one self sameperson so if he in Reversion grants his Reversion with warranty and after the Tenant for life surrenders and the Grantee be impleaded he shall never vouch during the life of the Tenant for life 5 H. 5. Comment 24 Ed. 3. And here also is a custome which preserves the Copy-hold Estate in Remainder and their particular Tenant cannot that prejudice and for that also it shall not be turned into a right as if a Copy-hold Estate be granted to one for life by one Copy and after the Lord grants another Estate for life by another Copy to another and then the first Copy-holder commits forfeiture he which hath the second estate cannot take advantage of that but the Lord shall hold it during the life of the first Tenant for no act made by the particular Tenant shall prejudice him in Remainder for otherwise many Inconveniencies would insue upon that as by secret conveyances or as if a grantee of a Rent charge grant that to the Tenant of the Land for his life the Remainder over the Remainder shall be good notwithstanding that the particular Estate bee extinct and drowned also he intended that the Copy-hold Estate is another thing then the land it self and for that the Fine shall not be a Barr no more then in Smith and Stapletons Case Com. Where a Fine levied of Land shal not be a Barr of Rent insomuch that it is another thing so in this case he intended that the fine shall not be a Barr of the Copy-hold Estate and concluded c. Wynch Justice was of opinion that the Fine shall not be a Barr to the Copy-hold Estate in Remainder for the acceptance of the Bargaine and Sale doth not determine the first Copy-hold Estate for life as to him in Remainder but only to the first Tenant and the Lord and betweene those he agreed that the Copy-hold Estate is determined as in Heydens Case by acceptance of a Lease for years and for that the Remainder shall not be turned to a Right and by consequence shall not be barred and for that he supposed that the reason that the Fine was a Bar in Saffins Case 5 Coke 123. b. was insomuch that the Lessor entered made a Feoffment and after levied a Fine and it is there agreed that the Feoffment turnes the Estate of the Lessee to a Right and for that the Fine shall be a barr and also there the Lease was by limitation of time to have a beginning but if a man makes a Lease for years to begin at a day to come and before the beginning of that makes a Feoffment or is disseised and Fine with proclamation is levyed yet he which hath future Interest shall not be barred for this is not turned to a Right and it was not the intent of the Statute of Fines to make a Barr of right where there was no discontinuance or Estate at least turned to right and this was the cause that at the Common Law Fine with Non-claime was no Barr but where they make alteration of possession and he cited Palmers case to be adjudged that a Fine of Land shall not be a barr for Rent where the case was Lessee for life Remainder for life of Rent The first Lessee for life of the Rent purchaseth Land and levies Fine of that and adjudged that this shall not binde them in Remainder of the Rent no more if he in remainder levy a fine that shall not prejudice the particular Tenant and so he concluded in this case that the Ramainder shall not be barred and that the Plaintiff shall have Judgment Warburton Justice accordingly and he argued that the Statute of Fines containes two parts The first to barr those which have present right and they ought to make their claim within five yeares after the Fine levied or otherwise they
H. 6. 14. b. Also he conceived that the Feoffment in consideration of marriage naturall love to his Son and that the Wife of the Sonne shall be Indowed and that the Son should redemise that to his Father for forty yeares if he so long lived and that the Father should pay the Rent to the Lord these he intended to be good considerations and for that should be within the said Proviso of the Statute of 13. Eliz. otherwise if it had been to defraud Creditors But if it had been to such intent that is to defraud Creditors this shall not be extended to other intent that is to defraud the Lord of his Harriot And in the 28. of Eliz. it was adjudged in the Kings Bench if a man make a Feoffment in Fee to the use of himselfe for life remainder to his Son in tayl with divers Remainders over with power of Revocation and after bargaines and sells to a stranger upon condition and after performes the Condition that yet the first conveiance remaines fraudulent as it was at the time of the making of it But this is only as to the purchasor and not as to any other And in Goodhers Case 3. Coke 60. a. In debt against Heire which pleads nothing by discent day of the Writ purchased the other joynes Issue and gives in Evidence fraudulent conveiance and upon speciall Verdict adjudged that it was very good See also 4. Coke 4. b. c. Vernâ—ns Case the Collusion to have Dower and Joynture also And so he concluded that Judgement should be given for the Plaintiff Warburton Justice agreed that the fraud shall not be intended if it be not found no more then if a man grant an Annuity to another Quam diu se bene gesserit in Annuity for that he need not to averr that he hath behaved himselfe well for this shall be intended if the contrary be not shewed of the other party So here insomuch that it is not found to be fraudulent it shall be intended to be Bona fide And he agreed that if it had been fraudulent at the first If the Son had made a Feoffment over in the life of the Father as it is agreed in Andrew Woodcocks Case 33 H. 6. 14. that then the fraud is determined So here when the Son hath made a Lease to his Father this determines the fraud if any be and so he concluded that Judgment should be given for the Plaintiff Wynch Justice agreed insomuch that it is expresse consideration found by the Verdict and for that other consideration shall not be intended and also that it shall not be intended that the Conveyance was made to defraud or to deceive the Lord of such a Peccadell as Harriot is which is of small consequence but if it be a fraud within the Statute of 27 Eliz. apparent that is if it containe power of revocation which is declared to be apparent fraud by the Statute the Court may take notice of that without any averrment And he saith That in the 2. and 3. Eliz. Dyer Wainsfords Case 193. a. and 9 Eliz. Dyer 267 268. there is no averrment of fraud but expresse Issue joyned upon the Fraud and for that he need not any other averrment And so he concluded also that judgement should be given for the Plaintiffe and so it was Ruled accordingly if the Defendant did not shew other matter to the contrary at such a day which was not done Trinity 10. Jacobi 1612. In the Common Bench. Strobridge against Fortescue and Barret IN a Replevin the case was this A man seised of Lands in Fee devises Rent out of it with clause of Distress and dies his Son and Heire enters and dyes the Rent is behind the Son of the Son dyes and his Son enters and makes a Feoffment to the Plaintiff and the Devisee of the Rent releases all Actions Debts and Demands to the Feoffor and after distraynes the Beasts of the Feoffee for the Rent behinde before the Feoffment and it seemes the Release is not good insomuch that the Devisee had no cause of Action at the time of the Release made against him to whom the Release is made nor Demand against him otherwise if the Release had been made to the Feoffee for he was subject to the distress and this is a demand Trinity 10. Jacobi 1612 In the Common Bench. Case of Cinque Ports NOTE that Coke said that it hath been adjudged by three Judges against one in a Case of Cinque Ports that the Cinque Ports cannot prescribe to take the Body of a Freeman in Withernam as they use for another for this is against the Statute of Magna Charta Quod nullus liber homo Imprisonetâ—r nisi per Legate Judicium and also against the liberty of a Subject but they more inclined that they might take the Goods of one in Withernam when another is arrested and them retain and this seemes the more reasonable Custome and Prescription The Case was Tenant for life the Remainder for life with warranty the first Tenant for life was impleaded and he vouches him in Reversion but he first prays in aid of him in Remainder and if this aid prayer shall be granted this was the question And it seemes by Nicholls Serjeant that it shall not be granted see 11 H. 4. 63. Where it is agreed that if a man makes a Lease for life Remainder for life Remainder in fee and the first Tenant for life hath ayd of him in remainder for life and he in Fee joyntly and 44 Edw. 3. 20. in Trespasse against a Miller which takes Toll where he ought to grind Toll-free the Defendant saith that J. had the Mill for life and that he is his Deputy the reversion to W. in Fee and prays ayde of the Tenant for life and of the Tenant in reversion and had it of the Tenant for life and not of him in reversion and this for default of Privity as it seems to Brooke Ayde 30. Haughton conceived that it should be granted for Tenant for life notwithstanding that he may plead any Plea yet he doth not know what Plea to plead without him in reversion but by the ayde praying al the Estate shall be reduced into one and the warranty shall come and for that he conceived that the first Tenant for life shall have ayde of him in remainder for life Wynch Justice conceived that ayde shall not be granted against the first Tenant for life against him in remainder for life for he conceived that ayde is alwaies to be granted when the defects of him and his Estate which prays it are to be supplyed by him which is prayed that this is the reason that he may have ayde of his Wife and where there are many remainders the first Tenant may have ayde of them all otherwise where he is Tenant for life the remainder for liâ—e and the reversion expectant for the Tenant for life cannot supply his
Prerogative of a Prince and is part of Law and stands with it and this is reasonable custome and so it hath been adjudged in the Kings Bench the reason is insomuch that the custome is the life of the Copy-hold upon which that depends and the party is but a Conduit to nominate the Tenant and when he is nominated and admitted then he takes by the Lord and that stands with the rules and reasons of the Common Law that is that a man devises that a marryed wife shall sell his Land and she may sell notwithstanding the Coverture for she upon the matter nominates the party and he takes by the Devise and by this reason she may sell to her Husband as it is agreed by the 8 of Assises And also by devise that Executor shall sell Executor of Executor may sell notwithstanding that he is not in Esse at the time of the Devise and so a Lease for life to one Remainder to him that J. S. shall nominate is good after nomination and then he takes by the first Livery as it is agreed in 10 H. 7. and J. S. Only hath the nomination and nothing passes to him and with this also agrees 43 Ed. 3. 19 H. 7. So if a man makes a Feoffment to the use of himself for life with diverse Remainders over and power to himself to make Leases for three lives this is good as it is agreed in Mildmayes Case and Whitlocks Case 8 Coke and yet the Estate doth not passe from him but out of all the Estates and he upon the matter hath only the nomination of the Lessee and of the lives for all the estates apply their forces to make that good and the 2 El. Dyer 192. 23. Custome that the Wife of the Copy-holder for life shall have her Widdows Estate is allowed to be a good custome and there an Estate for life upon the matter is raised out of the estate for life and annexed to it and this is by the Custome and the reason he conceived to be for that that Women should be incouraged to marry with their Tenants and by that the marriage with the Tenant and the custome in this Case doth bind the Lord and so 4 Coke there are divers customes by which the Lord is bound and the 8 Coke Swaines Case where the Copy-holder by custome hath the Trees in Case where the Lord himself hath them not so if the Lord sell the Waste yet the Copy-holder shall not loose his Common in that notwithstanding that the Estate of the Copy-holder be granted after the Wast is severed from the Mannor and it is agreed in Waggoners Case 8 Coke that custome is more available then the Common Law And for that this cnse hath been adjudged in this point between Crab and Varney by three or four Judges he would not further question it And for the second custome he agreed that one bare Tenant for life could not meddle with the Sale or falling of the Trees but here is a Copy-holder for life which hath Aut ority given by the Lord and the Custome to dispose the Trees and he saith that Bracton and the old Laws of England calls Copy-holders Falkland and saith they cannot be moved but in the hands of the Lord they ought to surrender and agreed that this is within the Rules of the Common Law for Consuetudo privat communem legem and the Law doth nor give reason of that for this is as a ground and need not to be proved for the reason of every custome cannot be shewed as it was sayd in Knightly and Spencers Case and he sayd that Mannors are divided into three sorts of Tenures The first holds by Knights Service and this is for the defence of the Lord and they have a great number of Acres of Land and pay less Services The second holds by Socage and this for to plow and manure the Demesnes of the Lord and they shall pay no Rent nor do other services and this was at the first to draw such Tenants to inhabit there and for that they have Authority to dispose and sell the Trees growing upon theit Tenements The third holds by base Tenure and these were at the Will of the Lord and these were to do Services and then these in many Cases have liberty for their Wives in some cases to dispose that for another life and to dispose the Trees and so it is in Ireland at this day where some give more and greater priviledge then others to induce Tenants to inhabite and manure their Land for there every day is a complaint made to the Councell for inticing the Tenants of the Lord and 14 Ed. 3. Bar 277. The Tenant preseribes to have the Windfalls and if the Lord cut the Trees that he may have the Lops and 11 H. 6. 2. The Keeper of the Wood prescribes to have Fee and 46 Ed. 3. is prescription to stint the Lord in his own Soyl and all these are for the Incouragement of Tenants to inhabit upon the Land and time of Ed. 1. Prescription 75. A stranger prescribed to have all the profit of the Land of another for a great part of the yeare and to exclude the giver of the Soyl 6 Ja. It was adjudged in the Kings Bench between Henrick and Pargiter that the Lord may be stinsted for Common in his own Laud and in the Book of Entries 563. It appears that by Custome Copy-hold granted Sibi suis was a good Fee-simple and the reason of all this is shewed in the 4. Coke amongst his Copy-hold Cases where it is agreed that the Life of a Copy-hold Estate is the customes and then if the Custome gives life to the Estate this gives life also to all the Priviledges which are incident to the Estate and the Lord is but the means to convey the Estate from one to another and as in 38 Ed. 3. A man hath a House as Heir to his Mother and after a stranger grants Estovers to him and his Heirs to be burnt in the same House these Estovers shall go to the Heirs of the Mother insomuch that they are incident to the House so of Priviledg incident to a Copy-hold Estate by the Custome and at the Common Law if Tenant for life hath cut the Trees he hath not forfeited his Estate for he was trusted with the Land and was not punishable till the Statute of Glocester and at this day if there be a mesne Remainder for life which remains in Contingency and that shall prevent that the Tenant shal be punished for this waste and to make innovation of this custome will be dangerous and for that he concluded that the Plaintiff shall be barred Warburton Justice agreed And the first Custome that is for the nomination of the Successor he conceived that it is good and that it is good by the Common Law and good by Custome by the Common Law as a Lease for life remainder to him which the Tenant for life shall
Common Law mâ—â— be done by Custome and that an Estate may be created by such nomination it appeares by the case where a Remainder is Limited to him which the first Tenant for life shall nominate and it is very good and to prove that the Custome is good he remembred the custome of Millam in Norfolke where he was borne that is that if any Copy-holder will sell his Land and agree of the price that at the next Court when a surrender is to be made the next of his blood and if he will not any other of his blood may have the Land and so every one shall be preferred according to the neerenesse of his blood and with this also agreed the Leviticall Law as it appeares Leviticus 25. chap. verse 15. which appoints this to be at the yeare of Jubile and the Common Law within one yeare after the Alienation and upon this he infers that if Custome may appoint Heire in the life of the party then a Fortiore he may appoint Successor after his death and he conceived that at the beginning the Copy-holders might have had absolute Fee-simple of the Lord and they rather made choice to have such Estate insomuch that they did not know if their Children would be towardly or not and for that content themselves with the nomination of a Successor only and so is the Custome at Hamm also in Middlesex if any Copy-holder will sell the next Cleivener which is he that dwelleth next unto him shall have the refusall giving so much as another will and he which Inhabits one the East part first and the South and the West and last the North shall be preferred is the only way in his course and there the Successor is nominated by the Heavens and by the quarters of the Earth and so is the custome in Glocester And if any Husband hath an Estate for twelve yeares his Wife shall have it for twelve years also and so ad Infinitum and this makes nomination and so of Free-hold and so if it be good without nomination it shall be good by nomination And if the Estate determine by the Death of the Tenant without nomination when the Lord revives the Copy-hold Estates the priviledge also shall be revived But he conceived that the Tenant cannot nominate part to one and part to another nor that divided in fractions And he saith that this point hath been adjudged in the Kings Bench by foure Judges against Popham 5. Jacobi between Ball and Crabb And so he concluded this point and to the second custome he said he would speake to that Transitive but not Definitve and that it hath been adjudged 45. Eliz. between Powell and Peacock that bare Copy holder for life could not prescribe to cut and â—ell the Trees otherwise of Tenant in Fee-simple for he hath them cherished and fostered And it is against common reason incongruent and against the Common Law that a Copy-holder for life may cut and sell the Trees and custome ought to have reason and congruence for 10. Ed. 3. 5. Leete cannot be belonging to a Church insomuch that it is Incongruent and so in Writes Case 2. Coke Tythes cannot be appurtenant to a Mannor insomuch that it is incongruent and a spirituall thing shall not be pertinent to a temporall and so è Converso And so in the 5. Assis 9. and Hill and Granges Case Com. Turbary cannon be appurtenant to Land insomuch that it is incongruent but it ought to be to a house so in time of Ed. 2. Tenant of the Mannor prescribes to have free Bull and Bare and it is not good for the reason aforesaid otherwise it is of the Lord of a Mannor and 9 H. 5. 45. custome in Leete to present common and adjudged that it it is not good insouuch that it wants congruity for it is not proper to the Court and upon this he concluded that bare Tenant for life cannot prescribe to cut Trees for it is not congruent that such an Estate shall have such a priviledge and this for three reasons First insomuch that Trees growing are parcell of the Inheritance Secondly in respect of the perdurablenesse of them for it shall be intended that they will indure forever and so will not his Estate for this is as a shadow as Job said and 't is absurd that shadow should cut downe the Tree And also it is for necessity of habitation and Plow and Husbandry And it is for the Common Wealth that Copy-holder of Inheritanc might cut them by such custome for otherwise he would not be incurraged to plant and preserve them And notwithstanding that in this Case the custome be generall that the Copy-holder may cut down all yet that shall have a reasonable construction avd that this notwithstanding he leave sufficient for House-boot as if a man grants Common without number yet the Grantor shall not be excluded but shall have his Common there for excesse shall not be allowed As if a man which distraines another for Rent he shall not take excessive distress the Lessee for life excessive Tallage of villaines nor upon excessive Fines of Copy-holders and so it was adjudged in Heyden and Sir John Lenthorps Case that the Lord shall not take all but leave sufficient for reparations and so was the opinion of Wray cheife Justice in the 33 of Eliz. In evidence to a Jury but here he is in nature of Tenant in Fee-simple and it shall be intended that he hath cherished the Timber and every Copy-holders Estate granted is as a new Grant and hath affinity with Tenant in Fee-simple and he agreed that if Lessee for life the Remainder for years Remainder for life be and the first Lessee for life makes a forfeiture he in Remainder for years shall take advantage of that and that it hath been adjudged that the Lord of the Mannor shall take advantage of forfeiture made by the Copy-holder without presentment made by the Homage and in one Bacon and Flotsims Case and so Lessee for yeares of a Mannor shall take advantage of Forfeiture notwithstanding the Imbicillity of his Estate but the principall matter upon which he relyed was that the Trees were severed from the Free-hold and if the Lessee dy his Executors shall have them insomuch that they are meer Chattells and this First in respect of the Words of the Lease that is demise and to farm let the Mannor but bargain sell give and grant the Timber Trees to be felled and carried away at his Will As if a man makes a Lease for years except the Wood and after grants the Trees the Lease determines the Lessor shall not have the Trees again Secondly They are in two divided Sentences and also in respect of divided properties for the Executor of the Lessee shall have them and Quando duo Jura concurrunt in una persona equum est ac si esset in diversis also past at severall times for the Trees pass by the delivery of the Deed and the Land
doth not pass till Livery and Seisin be made Also the intent of the parties is not that they shall pass together for if the intent were otherwise the Law would not devide them as it was adjudged Hillary 15. Eliz. in the Lord Cromwells case where Tenant in Tayl was of a Mannor with the Reversion to his right Heirs and he by his Deed gives and grants the Mannor and the Reversion of that and includes Letter of Attorney within the Deed to make Livery but Livery was not made and yet the Reversion doth not pass for his intent appeares that it should pass by Livery and Seisin and not by grant and also in Androwes case the Advowson appendant to a Mannor shall not pass without inrolment of Bargaine and Sale yet there were words there that that might passe by Grant for this was against their intent otherwise if a man makes a Lease for life or years of a Mannor and grants the Inheritance of the Advowson by the same Deed and so of the case of 23 Eliz. Dyer 374. Lessor deviseth Grants and to farm lets the Mannor and the Trees and they passe joyntly and the Reason is insomuch that it is but a Joynt sentence and not severall as it is here also he intended that the life of the Lessee for life is not averred and for that he shall be intended to be dead and for that it is a severall grant of the Trees of the Free-hold for the Interest of them is setled in his Executors for if he had made Sale of them before that the Copy-holder had cut them down then that had not been forfeiture see 5. H. 7. 15 Ed. 4. 14 Eliz. Dyer And then the Case is this Tenant for anothers life of a Mannor makes a Lease for yeares of the Free-hold of which an Estranger hath a Copy-hold Estate for life in Esse Lessee dies and he conceived that the Copy-holder shall not be an occupant for it ought to be Vacua Possessio and this was the reason of the judgment in Adams Case in 18 Eliz. Where a man makes a long Lease for years and after intending to avoyd this Lease makes a Lease to another old man for anothers life to the intent that the Lessee for yeares should be occupant when the old Lessee died and so drowned his Tearm and after the Lessee died and resolved that the Lessee for years shall not be an occupant insomuch that there was not Vacua Possessio and for this it seems to him that if Lessee for anothers life makes a Lease for years and dyes that the Lessee for yeares shall not be an occupant notwithstanding that he made speciall claim and that for the reason aforesaid but he agreed that a Lessee for anothers life makes a Lease at will and dies there the Lessee at Will shall be an Occupant insomuch that his Estate is determined and yet there is not Vacua Possessio according to 38 H. 6. 27. But he did not say there should be an occupant in these cases but cyted Bracton fol. 8. that if the Sea leave an Island in the midst of that the King shall have it and not Occupanti conceditur and so he concluded that the Plaintiff shall be barred and that Judgment shall be entred for the Defendant which was done accordingly and it was afterwards agreed upon motion in this case whether it would not make difference if the Trees were cut by the Copy-holder before that he hath made his nomination or not notwithstanding it was objected that when he hath made his nomination then he was only bare Tenant for life and the Priviledge executed and he in Remainder was also Tenant for life only for he cannot nominate till he comes to be Tenant in possession but this notwithstanding insomuch that they had power to make nomination that is the first Tenant again if the second died in his life time and the second if the first died in his life time and so the Peiviledge continues all the Justices continued of their opinions and according to that Judgment was entred for the Defendant and that the Plaintiff should be barred and should take nothing by his Writ Trinity 8. Jacobi 1610. in the Kings Bench. The Lord Rich against Franke. THE Lord Rich brought an action of Debt against Franke Administrator of one Franke and this was for a rent reserved upon a Lease for yeares made to the Intestate and the Action was brought in the Debet and Detinet for rent due in the time of the Administrator and verdict for the Plaintiff and after moved in Arrest of Judgement by the Councell of the Defendant that this Action ought to be brought in the Detinet only and not in the Debet and Detinet and Chibborn of Lincolnes Inne conceived that the Action was well brought in the Debet and Detinet and to that he sayd that Hargraves case 5 Coke is so reported to be adjudged but he saith that he hath heard the councell of the other part insisted upon that that this Judgment was reversed and for that he would under favour of the Court speake to that And hee conceived that the Action so brought is well brought for three Reasons The first shall be drawn from the nature of the Duty and to that the Case rests upon this doubt that is if the Administrator is now charged for this Rent as upon his own duty or as Administrator and it seems to him not as Administrator but as upon his own duty for he saith that it is not Debt nor duty till the day of payment as Littleton takes the diversity in his Chapter of Release between Debt upon an obligation and a Rent and the day not being incurred in time of the Intestate this cannot be his duty therefore that ought to be duty in the Administrator and to the cases of 19 H. 8. 8. Where the Executor of a Lessee for twenty years which had made a Lease for ten years rendring Rent brought action of Debt against the Lessee for ten years for rent incurred in the time of the Executor and this is in the Detinet only and the Case of 20 H. 6. 4. Where an Executor brings an action of Debt upon Arrerages of Account of an Assignement of Auditors by themselves in the Detinet only and he sayd that in these Actions the Executors were Plaintiffs and in all actions brought by Executors where they are Plaintiffs and the thing recovered shall be Asset the Action shall be brought in the Detinet but in our case they are Defendants and so the diversity and to the Objection that may be made to this Contract out of which this duty grows and arises it was made by the Intestate and not by the Administrator himself and so this is a duty upon the first Privity of the contract he answered that there is great difference when a thing comes due by the Contract of the Testator alone and ought to be payed in his time in
Thirdly The third point was that after the disseisin of the Tenant for life he that had future Interest of a Tearme to begin after the death of the Lessee for life during the disseisin assignes over all his Interest if this assignement be good or not and he argued that not for by him the disseisin of the Tenant for life the future Interest to commence after the death of the Tenant for life is converted into a Right and Right of a Tearme cannot be transferred over for though that Lessee for years to begin presently may grant over his Interest before his Entry and it is well for that that it is an Interest forth with yet if before his Entry the Lessor be disseised by a stranger yet by him now he cannot grant his Interest over for that it is converted into a Right of a Tearme but he ought to re-enter before that the Lessee may grant over his Tearme so in our case though that before the disseisin of the Lessee for life the future Interest was transferrable over for that that it was Interest though that it was not a Lease in posaession yet when the Tenant for life was disseised then his Interest of a Tearme was turned into a Right of a Tearme and then it is not transferable over till the re-entry by the Lessee for life and he said that it was resolved by the 2. cheif Justices in the Star-chamber as he hath heard that if Lessee for years be and before his entry a stranger enters and disseises the Lessor that now the Lessee cannot grant his Tearme before that the Lessor hath entred or he himselfe hath gained the Tearme in posaession And so it seemes to him that the future Tearme doth not passe by this assignement and then it is extinguished by the purchase which commeth after and then the Justification of the Defendant as Servant to the Assignees not good And so upon all the matter he praied Judgement for the Plaintiff Williams Justice said that it was cleer if a man have a Lease for years to begin after the death of a Lessee for life as is the case at the Barr that though that the Lessee for life be disseised yet the Interest remaines good Interest to the Lessee and is not turned into a Right of a Tearme and for that he may grant it over notwithstanding the disseisin and so is Sapphins case 5. Coke 104. Otherwise if the Lessee for years had been any time in posaession by force of his Lease and it is Adjourned At another day the same Tearme the case was argued againe by Yelverton of Grayes Inne of the other part that is for the Defendant and first he said that the Plaintiff which claimes under the Wife of Hlobeame hath not any right to one Moytie cleerely for the Husband and the Wife were Joynt-Tenants before the coverture So that they take by Moyties and not by Intirities and when the Husband bargaines and sells all that is a seperation of the Joyntenancy and his Moytie is gone for ever as it appeares by 3. M. Dyer 149. 82. So that for one moytie it is cleer that the Plaintiff hath not any right any way how ever the case prove for the other Moytie and this Moytie which was conveied by the Husband is discended to the Defendant which hath no speciall outer found by the Verdict But only that he entered which he well might having the other halfe and then no Trespasse found by the Jury and also the Damages found by the Jury are Intire and then being no cause of Damages for part there shall be no Judgement for the residue And the first point that he moved was if after this disseisin and feoffment over the Feoffor might tender the money to cease the first Estate and it seemes that not for the Free-hold cannot accrue as it seemes to him by any tender after his disseisin and so it hath been agreed to him as he said by the Councell of the other part and then by him this condition consisting of two parts this is Disseisin of one Estate and Accruing of the other Estate if by this desseisin the condition be distroied for the accruing of the Estate it seemes also that it shall be distroied as to the ceasing of the first Estate for if a condition be distroied in part it shall be distroied in all for it is Intire and cannot be apportioned and by consequence if one Estate cannot accrue the other shall not cease And he resembled it to the cafe in the 14. H. 8. 17. And Perkins condition being in the Coppulative one part being dispenced with the other was a discharge so when a man hath election to do one of two things if one be discharged though that it be by the Act of God as by death c. Yet the other shall be discharged by the Law as it was in Langtons Case 5. Coke 22. a Fortiore when one is discharged by the Act of the party also by him if he had made any Feoffment after this desseisin yet the very disseisin would destroy the accruing of the Estate for though that he do not gaine Fee by the disseisin but only Estate for life and retaines his old reversion in him according to 9. H. 7. 25. Yet the Fee and the Free-hold are so conjoyned by discent of that Estate alters an entry as it appeares by 3. Ed. 3. Entry Congeable 58. And if he in reversion disseise Tenant for life the Contingent uses shall never rise by Chidleys Case first of Coke 158. Condition that he retaine his old remainder no more of the accruing of the Fee in our Case for by him it appeares by 10. Assis and Nicholls Case Com. That Estate ought to accrue upon posaession or at least upon an Estate in being and not upon a right of an Estate only And for that he cited 6. R. 2. Pleasingtons Case Lease for years upon condition that if the Lessee be outed he shall have Fee though that he be outed yet he shall not have Fee for that that at the time of the condition performed he had but a right of Tearme and no Tearme in posaession so is our case after the disseisin he having but right the Estate cannot accrue Secondly if the Grantee or he to whose use may performe the Condition either by the Common Law or by Statute Law And he conceived that none of these might performe that for first at the common Law though that Grantees of reversions may take advantage of a Condition by way of cesser of Estates upon the condition performed yet this is only when the condition was to be performed of the part of the Lessee and so was the case cited by Serjeant Nicholls of 11 H. 7. but if the condition were of the part of the Lessor otherwise it was as the Book is in 26 H. 6. Entries And then a Fortiori here the Assignee of a Disseisor cannot performe the condition which may be performed of the part
the foundation is of Saint Paul and where it is a person certain but all the name is not so precisely recyted and to that which is sayd by my Brother Williams that no difference between conveiance made to them and by them I agree to him with this difference that is if conveyance be made to them of what by presumption in Law they are knowing and are parties as a Fine levied to them and such like but of a Devise it is not presumed that they have knowledge of that till the Death of the Devisor and he conceived that the Lease is voyd and this Decree shewed hath not changed his opinion but he moved the parties again to an agreement and would not as yet give Judgment Hitcham the Queens Attorney moved the Court for a Prohibition and the case was this two Merchants covenanted by Deed with their Factor to allow him ten pound a Moneth for his Wages and one Merchant sealed the Deed in England and the other sealed that upon the Sea and the Factor came and sued the Merchants in the Admiralty for his wages and by the Court insomuch that one of them sealed it upon the Land this is not any thing done upon the Deepe Sea and for that Prohibition was granted to him Upon a Motion made by Wincolt of the Middle Temple to dissolve a Prohibition granted to the spirituall Court upon a Libel for Tithes there the Court took this rule that when a Consultation is lawfully granted there a new Prohibition shall not be granted upon the same Lâ—bell and yet they qualified that with this difference that is when a Consultation is granted upon any fault of the Prohibition in form by the Mâ—sprision of the Clark or by mis-pleading of any Statute in that or such like there a new Prohibition may be granted upon the same Libell but if Consultation be granted upon the right of the thing in question there a new Prohibition shall not be granted upon the same Libell see the Statute of 5 Ed. 3. Pasch 9. Jacobi 1609. In the Kings Bench. BRomehead and Spencer Plaintiffs Rogers Defendant where an Action of Debt was brought by the Plaintiffs against the Defendant as Administrator during the minority of one J. S. and the Plaintiffs shew in their count that the said J. S. at the time of the Writ brought was and yet is within age of one and twenty years and verdict passeth against the Defendant and Crewe moved in arrest of Judgment that the Declaration was insufficient for they have declared that the Executor was within the Age of one and twenty years and the Administration during the nonage shall cease when the Infant comes to the Age of seventeen years so that he may be of the age of 17. 18. 19. or 20. years and yet the Administration ceaseth and so of Action against Administrator and so was the Opinion of all the Justices and the Judgment was stayed upon that according to the resolution of Piggotts Case 15. Coke 29. a. PLomer against Hockhead the Plaintiff declares in Ejectione firme upon a Lease made to him by three Husbands and their wives and that the Defendant ejected him and at the Issue upon not guilty and in evidence to prove this Lease and the delivery of that was shewed a Letter of Attorney made by the Husbands and their wives and the councel of the Defendant takes exception to the Declaration for they have declared upon a Lease by three Husbands and their Wives with a Letter of Attourney to make delivery and a married Wife cannot make a Letter of Attorney And so this is not a Lease of the Wives and so the Plaintiff had declared upon no Lease And the opinion of all the Court was that a married Wife could not make a Letter of Attorney And Williams Justice compared this to the case of an Infant as if an Infant makes a Feoffment or a lease and delivers that with his hand this is not but voidable But if it be executed by Letter of Attorney that is a disseisin to him but by Flimming and Williams if the Plaintiffs had declared upon a Lease made by the Husbands only this had been very good Thomas Malin Plaintiff in Replevin against Thomas Tully the case was The Queen Mary was seised of a Park called Eestwood Park in her Demesne as of Fee as in Right of her Crown and so being seised by her Letters Patent's let the said Park to two for their lives and after died And the Queen Elizabeth by her Letters Patents recyting the said Lease for lives and that the said Lessees were alive granted the said Park to Humphrey Lord Stafford and his Wife and to the Heires of the said Lord Stafford of the Body of the said Wife lawfully begotten And by the said Patent the same Queen by these words Ac de Ampliori et Vberiori Gracia Nostris Volumus et Declaramus quod si Predictus Dominus Stafford Solvat seu Solvi faciat prefacto Dominae Reginae 20 s. ad talâ—m Diem Tunc Concedimus quod predictus Dominus Stafford habebit revertionem predictam sibi et Heredibus suis And the Lord Stafford paid the said sum of twenty shillings according to the said Letters Patents and if he shall have Fee-simple or not was the question And it was objected that he shall not have it for the words of the Patent are that if the Lord Stafford paies the money Tunc concedimus the which words seeme that the Grant shall take effect in futuro and it was not a present Grant but when the money shall be paid then shee granted but it seemes to the Justice that it was a good Grant immediatly to take effect upon the payment of the money and the condition was precedent till that be performed the reversion remaines in the Queen Eliz. And the Queen might grant by one selfe same Patent as by diverse See 10. Assise 13. 7. Ed. 3. 8. Ed. 2. Feoffments and that the reversion shall not extinguish the Estate Tayl but they may well be together but otherwise it is of an Estate for yeares or for life Warburton Justice that the King is specially favoured in the Law and for that he shall not be inforced to attend in case as other persons ought to make attendance And for that in case where a common person may make a good Grant the King also may make a good Grant and in the case at the Barr if the Grant had been made by a common Person it had been good without question But the first objection that hath been made was that where a man hath made a Lease for life or for years upon condition to have Fee there the particuler Estate shall be drowned upon the increasiing of the Estate but the Statute of Westminster 2. preserves the Estate tayl that it shall not be drowned and that the Fee in this case doth not vest till the condition be performed for if the
then it shall never vest and if it do not vest without Office in this case it shal never vest at all but it is for the Honour of the King that his grant shall have his effect and 49 Ed. 3. 16. Isabell Goodcheaps case she devised her Lands to her Executors to be sold and dyes without Heir the King hath that by Escheat yet the Executors may sell it and for that divest the Estate out of the King and so was the Lord Lâ—vells Case and the reason is for the necessity for the Prerogative of the King shall do no wrong and there need no continuance of the Estate of the part of the Lessor but of the part of the Lessee and for that if the Feoffor make a Feoffment or grant his Estate this shall not make prejudice or alteration of the Estate and for that if the King refuse to receive the Money yet if it be tendered the Fee-simple shall vest in the Patentee and the simple upon that shall shall increase see 31 Ed. 1. Feoffments and Deeds B. 32. Quid Iuris Clamat be And to the fourth it seems also that both the Estates ought to be created and granted by one self same Deed or by divers delivered at one time Quia quae in continenti fiunt pro uno habeantur reputentur as if a man makes a Lease for years upon Condition to have in tayl upon condition to have in Fee this second condition is void for it ought to be all one Crant and cannot be intire upon the privity of the first grant and it is not material though that the first Estate be drowned upon the performance of the condition as if the King makes a Lease for life the Remainder in tayl upon condition that if the Tenant for life pay twenty shillings that he shall have Fee this shall be a good Grant and the Fee well vested by the performance of the condition though that the particular Estate for life shall not be drowned And to the second point that is that the Grant of the King shall not be good for that that it is by the words Reversion aforesaid he agreed that if the King makes a Grant to one intent that shall not enure to another intent But this shall enure to the intent for which it is made Vt res magis vale et quam periat and it is for the dishonor of the King to make an unconscionable Grant And to the Objection which is made that the King is not understanding of Law to that he answered that the King is Caput Legis and for that shall not be intended to be ignorant of it and for that if a grant may have two intendments one to make the Grant good the other to make the Grant voyd it shall be intended and expounded in the better sense that is to make the Grant Good and not to make the Grant voyd for this was Iniquae expositio and also he sayd that the Grant shall be good for the first word Concedo though it had not been subsequent also as if a man grant a Rent charge and if it be behinde that the Grantee may distrain for the first Grant and the Grant is not of a Reversion In futuro but grant that if the condition be performed that then the Fee doth pass In futuro and it seemed to him that it was a good devise to prevent that the Estate tayl should not be discontinued by Fine nor otherwise untill the Condition were performed and so of recovery also for if the King grant an Estate tayl and after grants the Reversion in tayl this second intayl is within the intent of the Statute and when the Issue of the first Tenant in tayl shall not be barred the Estate of the Tenant in tayl in Remainder shall not be barred see the Lord Barkleys case in the Com. fol and 7 Ed. 4. and as to the pleading he sayd that when the Issue is offered which depends upon matter in Law there is no necessity to take travers upon the matter in Law for it doth not belong to lay men to decide the matter in Law and for that he concludes that the Grant in substance is good and in form exquesite and that the Issue in tayl in Reversion shall not be barred for Quod non in principio valet non valebit in accessario and that Judgment ought to be for the Plaintiff which was done accordingly IN Ejectione firme against Gallop after Verdict and Judgment for the Plaintiff a Writ of Habere facias Possessionem was awarded and executed and returned and fyled and after the same Defendant re-entred and outed the Plaintiff and Attachment was awarded and it seems that if the Writ had not been returned that then a new Writ shall be awarded and the Attachment was awarded upon Affidavit IN Action upon the case against Trotman the words were Thou sayest thou art an Attorney but I think thou art no Attorney but an Attorneys Clark in some Office but if thou be an Attorney I will have thee pickt over the Barr the next Tearme and thy Eares nailed to the Pillory and it seems that these words are not Actionable IN waging of Law of Summons in Dower In petit Cape there ought to be two summons only and if it be Grand Cape then there ought to be two Summoners and two Veiwers and Summons upon the Land is sufficient to give notice of the Demandant of the thing demanded and the day in Court That in Waging Law the Lord Coke sayd that the Defendant himself ought to swear De fidelitate and elevâ—n others which are named in the Statute of Magna Charta chapter Testes fideles ought to swear De credulitate IF Tenant for life be the Remainder in tayl to another the Remainder in Fee to the Tenant for life and the Tenant for life releases to the Tenant in Tayl the Release is good to passe the Remainder in Fee to the Tenant in Tayl for to this purpose the Tenant in tayl hath sufficient possession upon which the Release may enure but it shall not be good to pass the Estate for life and 19 H. 6. and 9 H. 7. If Tenant in Tayl in Remainder Disseise Tenant for life he doth not gain Fee-simple by Fulthorp but if there be Grand-Father Father and Sonn and the Father makes a Feoffment the Grand-Father dies the Father dies the Sonn is barred so if the Sonn had levied a Fine being Tenant in tayl 33 and 39 H. 6. 43. a. 21 Ed. 4. Discontinuance Pasch 7 Jacobi 1609. In the Common Bench. Warbrooke and Griffin BEtween Warbrooke and Griffin a Guest brought a Horse into an Inne in London to be kept the which stayed there so long till he had eaten out his Worth and then the Inn-Keeper caused the said Horse to be prysed and then sold him according to the custome of London and it seems well he might do it and that the Sale was
is appurtenant or appendant the Grantee shall have Common Pro Rata but if a commoner purchase parcell of the Land in which he hath Common appurtenant that this extincts all his Common And it was agreed that Common may be appendant to a Carve of Land as it appeares by the 6 Ed. 3. 42. and 3. Assise 2. as to a Mannor but this shall he intended to the Demesnes of the Mannor and so a Carve of Land consists of Land Meadow and Pasture as it appeares by Tirringhams case 4. Coke 37. b. And Common appendant shall not be by prescription for then the Plea shall be intended double for it is of common Right as it appeares by the Statute of Morton chap. 4. And the common is mutuall for the Lord hath Right of Common in the Lands of the Tenant and the Tenant in the Lands of the Lord And it was urged by Nicholls Serjeant that the Common shall be apportioned as if it were Rent and that the Lessee shall have Common for his Lease and then the Lessor hath no Common appurtenant or appendant to the two Virgats of Land and for that the Prescription was not good Coke cheife Justice if it had been pleaded that he had used to have Common for the said Beasts Levant and Couchant upon the said Land there had been no question but it should be apportioned for the Beastes are Levant and Couchant upon every part as one day upon one part and another day upon another part and for that extinguishment or suspention of part shall be of all as if a man makes a Leafe of two Acres of Land rendring Rent and after bargaines and sells the reversion of one Acre there shall be an apportionment of the Rent as well as if it had been granted and attornment And he agreed that if a man have Common appurtenant and purchase parcell of the Land in which he hath Common all the Common is extinct but in this case common appendant shall be apportioned for the benefit of the Plow for as it is appendant to Land Hyde and gain And in the principall case there was common appendant for it was pleaded to be belonging to two Virgats of Land and for commonable Beastes And he conceived also that the prescription being as appertaining to such Land that this shall be all one as if it had been said Levant and couchant for when they are appurtenant they shall be intended to Plow Manure Compester and Feed upon the Land And also he conceived that the right of Common remaines in the Lessor and for that he may prescribe for after the end of the Tearme shall be returned and in the intermin he may Bargain and sell and the Vendee shall have it and shall have common for his Portion And Walmesley Justice agreed to that and that during the Tearme the Lessor shall be excluded of his Common for his proportion Foster Justice agreed and that the possession of the Lessee is the possession of the Lessor but he conceived when the Lessor grants to the Lessee six acres of Land in such a feild where the Land lies and then the Beasts were taken in another feild And so they agreed for the matter in Law and also that the pleading was ill and so confesse and avoid the prescription But upon the traverse as it is pleaded the Jury shall not take benefit of it and Judgement was given accordingly Termino Pasche 7. Jacobi 1609 In the Common Bench. THOU art a Jury man and by thy false and subtill means hast been the Death and overthrow of a hundred men for which words Action upon the case for slander was brought and it seemed to Coke cheife Justice that it did well lye if it be averred that he was a Jury man and so of Judge and Justice for Sermo relatus ad personam intelligo debet de qualitate persone as Bracton saith and in the like Action brought by Butler it was not averred that he was a Justice of Peace and resolved that an Action upon the case doth not lye But Walmesley Justice conceived that an Action doth not lye for one Juror only doth not give the Verdict but he is joyned with his Companions and it is not to be intended that he could draw his Companions to give Verdict against the truth and false and subtill means are very generall Warburton Justice agreed with Coke and conceived that the Action well lies being averred that he was a Jury man as if one calls another Bankrupt Action well lies if it be alledged that the Plaintiff was a Tradesman and it is common speaking that one is a Leader of the Jurors and a man may presume that other Jurors will give Verdict and may take upon him the knowledge of the Act. Walmesley conceived that the Action did not lye for that the words are a hundred men which is impossible and for that no man will give any credit to it and for that it is no slander and for that Action doth not lye no more then if he had sayd that he had kild a thousand men But Coke Warburton Daniell and Foster agreed that the number is not materiall for by the Words his malice appears and for that they conceived that the Action doth well lye Pasch 7. Jacobi 1609. In the Common Bench. Denis against More ANthony Denis Plaintif in Replevin William More Defendant the case was this Two joynt Lessees for life were the Remainder or Reversion in Fee being in another person he in Reversion grants his Reversion Habendum the aforesaid Reversion after the death surrender or forfeiture of the Tenant for life it hapneth that the Lease determines for the life of the Grantee and Remains to another for life and resolved that this shall be a good grant of the Reversion to the first effect of Possession after the Deaths of the Tenants for life according to the 23 of Eliza. Dier 377. 27. And it shall not be intended to passe a future interest as if it were void of the other party and so was the opinion of all the Court see Bucklers case 2. Coke 55. a. and Tookers case 2. Coke 66. Upon a Fine the first Proclamation was made in Trinity Tearm 5. Jacobi And the second in Michaelmas Tearm 5. Jacobi And the third in Hillary Tearm 6. Jacobi where it should be in Hillary Tearm 5. Jacobi And the fourth and fifth in Easter Tearm 6. Jacobi And this was agreed to be a palpable Errrour for the fourth Proclamation was not entered at all and the fifth was entered in Hillary Tearm 6. Jacobi where it should have been in Hillary Tearm 5 Jacobi and it shall not be amended for that it was of another Tearm and the Court conceived that this was a forfeiture of the Office of the Chirographer for it was an abusing of it and the Statute of 4. H. 4. 23. and Westminster 2. Are that Judgement given in the Kings Court shall stand untill
Plaintiff SMith versus Bolles Sheriff of London Pasc 9. Jac. rotulo 1353. In case for that the name of the Sheriffs were omitted on the venire fac And for that cause one Judgement given for the said Smith was reversed by Writ of Error And for that Misprision Smith brought such Action of the Case HArris versus Adams If thou hadst had thy Right thou hadst been hanged for breaking of Paches House the words not actionable Thou art a Thief thou hast stollen the Town-beam meaning the Town of Wickham Serjeant Hutton of opinion the Action would lie STephens Attourney versus Battyn for words Thou hast cozened M. Windsor of his Fee and I will sue thee for it in the Star-chamber for that thou didst not come for Windsor Judgement for the Plaintiff Trin. 11. Jac. BRadley versus Jones Trin. 11. Jac. rotulo 3390. The Plaintiff brings his Action upon the Case for unjust vexation The Defendant had exhibited Articles against the Plaintiff to have the good Behaviour against him and took his Oath before Doctor Cary one of the Masters of the Chancery and afterwards the Defendant ceased prosecution there and obtained from the Kings Bench a Supplicavit to have the good Behaviour there And the Court was of opinon that the Action would lie because he prosecuted in the Kings Bench and not in the Chancery But the Court said that if he had prosecuted in the Chancery though the Articles had been scandalous yet no Action would have lyen for a man shall not be punished for mistaking the Law for he may be misadvised by his Counsel BRooks versus Clerk Pasch 11. Jac. rotulo 307. Action brought for these words His Son Brooks hath deceived me in a Reckoning for Wares And his Debt-book which he keepeth for Sale of Wares in his Shop is a false Debt-book and I will make him ashamed of his Calling Hubbart and Nichols against the Plaintiff and Warburton for the Plaintiff Pasch 11. Jac. rotulo 2147. Action of the Case brought for a Nusance for building the Defendants House so near the Plaintiffs that a great part of it superpends And the Plaintiff in the conveying his Title shews a Lease for years made to him if the Lessor should so long live and doth not aver the Life of the Lessor but saith that by vertue of the Demise the Plaintiff hath been and then was thereof possessed and adjudged sufficient MOrton versus Leedell Hill 10. Jac. rotulo 1783. Action of the Case for these words He meaning the Plaintiff is a lying dissembling Fellow and a mainsworn and forsworn Fellow And Judgement for the Plaintiff after divers motions THomas Attourney versus Axworth Pasch 11. Eliz. rotulo 352. Action of the Case for these words This is John Thomas his writing and he hath forged this Warrant meaning a Warrant made by Buller Sheriff of that County upon a Capias prosecuted out of the Court of Common Pleas by M. H. against the Defendant and directed to the Sheriff ROw versus Alport Mich. 11. Jac. rotulo 1527. Action upon the Case brought for suing in the Admiral Court for a thing done upon the Land and not upon the high Sea BRay versus Ham Trin. 13. Jac. rotulo 1994. Action of the Case for these words Thou art a cozening Knave and thou hast cozened me in selling false Measure in my Barley and the Countrey is bound to curse thee for selling with false Measure and I will prove it and thou hast changed my Barley which I bought of thee And the Plaintiff sets forth in his Declaration that he was Bayliff to W. C. and H. C. of certain Lands in P. for three years and during the said time had the care and selling of divers Corn and Grain growing upon the same Land and after Triall and Verdict for the Plaintiff it was moved in Arrest of Judgement that the Action would not lie but the Court were of a contrary opinion and Judgement was given for the Plaintiff BRown versus Hook Pasch 13. Jac. rotulo 234. Action of the Case for these words Brown is a good Attourney but that he will play on both sides And it was moved in Arrest of Judgement that those words would not bear an Action but the Court held they were actionable but did not give Judgement because the Plaintiff did not shew in his Declaration that the words were spoken of himself STober versus Green Mich. 11. Jac. rotulo 1â—91 Action of the Case for these words Thou didst keep and sell by false Weights and in 24. s. bestowing thy Weights were false two Ounces and thy Man will be a Witness against thee and I will prove it The Defendant pleaded that the Plaintiff occupied one Shop and kept unlawfull Weights and by such Weights sold by reason whereof he said these words Videlicet Thou didst keep and sell by unlawfull Weights and in 24. s. bestowing thy Weights were false an Ounce and three quarters and thy Man c. And traversed the words in the Declaration and it was adjudged a naughty Traverse for that the words in the Bar and justified by the Defendant are actionable AGar versus Lisle Mich. 11. Jac. rot 318. Action of Trover brought in York-shire the Defendant justifies for Toll at Darnton in Durham and traverse c. The Court doubts of his Traverse being onely for the County of York whereas it ought to be any where else generally And Hobart said the Bar was nought because in the justification no conversion was sufficiently alleadged And note that if a man doth a thing which is allowable by the Law as to distrain Cattle and impound them that is no conversion but if he work them it is a conversion AVstin versus Austin Trin. 10. Jac. rotulo 3558. In Troyer the Defendant pleads that before the time that the Plaintiff supposes the Goods to come to the Defendants hands one S. A. was possessed of the Goods and amongst other Goods sold them to the Defendant but kept them in his own hands and afterwards sold them to the Plaintiff by reason whereof the Plaintiff was possessed and afterwards looses them and they came to the Defendants hands who converts them as it was lawfull for him to do The Plaintiff demurs and it was held a naughty Bar for it amounts to a Non cul And Cook doubted whether the Court should compell the Defendant to plead Non cul or award a Writ of Injury And a Writ of Inquire was awarded ALlyns versus Sparkes al. Trin. 8. Jac. rotulo 1606 Action of the Case brought for stopping up the Plaintiffs way and the Plaintiff declares that one H. B. was seised of the Mannour of M. of which two Acres were customary Land and that the Lord of the Mannour had for himself and his customary Tenants for the said two Acres a certain high-way in by and thorow c. And that the Lord of the Mannour granted the said two
agreement was not by him performed CRockhay versus Woodward Hill 15. Jac. rotulo 2001. An Action of Covenant brought upon this Writing Videlicet Memorandum that I John Woodward do promise and assume unto B. C. to pay to him such Moneys or other Goods as Josias my son shall imbessell mispend or wrongfully detain of his during the time of his being Apprentice with him within three Moneths next after request to me in that behalf made and due proof made of such imbesselling or wrongfull detaining in witness c. and the Plaintiff shews that the Defendants son did imbessell Goods of his Masters and shewed what Goods and left out in his Declaration these words Videlicet and due proof likewise made of such imbesselling or wrongfull detaining The Defendant demands Oyer of the Writing and pleads that he did not imbessell and it was tried for the Plaintiff and after Triall Exception taken because the Plaintiff did not alleadge any proof made and for that reason Judgement was arrested BRagg Assignee of Bragg versus Wiseman Executor of Fitch Mich. 12. Jac. rotulo 538. Action of Covenant brought and the case was this that Fitch and his Lady were seised of Land in right of his Wife for terme of her life and joyn together in a Lease by Deed indented in which were these words demise and grant and afterwards Fitch dieth the Lady enters and avoids the Lease and maketh a new Lease to a stranger whereupon an Electione firme is brought against the first Lessee and Judgement thereupon and the first Lessee put out of Possession whereupon the first Lessee brings his Action of Covenant against the Executors of Fitch upon the words demise and grant The Defendant demurrs The words were have demised granted and to farm letten for years if the Wife should so long live and Judgement for the Difendant A Covenant in Law shall not be extended to make one do more then he can which was to warrant it as long as he lived and no longer The Law doth not binde a man to an inconvenience If Tenant for Life make a Lease for twenty years and covenant that the Defendant shall injoy it during the terme that shall be during his Life for the terme endeth by his Death but otherwise it is if the Covenant be during the terme of twenty years by the word Demise an Action of Covenant lieth although he never enter and this word Demise implieth as much as Dedi concessi An Action of Covenant brought for that the Defendant covenants to bring again a Ship Perils and Damages of Sea onely excepted and he to excuse himself saith that the Hollander in a warlike manner by force and armes took the Ship and much doubt was where the Issue should be tried and the opinion of the Court was that the Action should be tried where it was laid COwling versus Drury Action of Covenant brought for that the Defendant did not pay a Rent with which the Land was charged the Defendant replies he was to injoy the Land sufficiently saved harmless and answers not the Breach and adjudged a naughty Bar by the whole Court SElby versus Chute Trin. 11. Jac. rotulo 3804. Action of Covenant brought and the Breach was alleadged that the Plaintiff should quietly injoy the Land demised to him and he shews that Chute exhibited a Bill in Chancery against him pretending the Lease was made in trust and it was decreed to be otherwise and whether the exhibiting this Bill was a Breach of Covenant there being no Disturbance at Common Law was the Question and the Court were of opinion that it was no Breach of Covenant for it was no Disturbance at Common Law nor Entry and the Law could not take notice of it and Judgement for the Defendant HOlder versus Tailor Pasch 11. Jac. rotulo 1358. An Action of Covenant brought upon this Covenant that the Lessee should repair the House provided alwayes and it was agreed that the Lessee should have such necessary Timber to be allowed and delivered by the Lessor and the Breach was that the House wanted Reparations and that so many Loads of Timber were necessary and that the Lessor allowed them according to the form and effect of the Indenture and a general Request laid and Exception was taken to the Declaration for that the Plaintiff did not alleadge a special request to the Defendant and that it was laid in the Declaration that a stranger brought the Timber which was held to be naught by the whole Court for it amounted to an Entry upon the Lessees Possession Exception taken to a Breach laid in Covenant for Repairs because it was generally alleadged and not shewed in what but being after a Verdict it was helped by the opinion of the whole Court TIsdale versus Essex Trin. 12. Jac. rotulo 2131. Action of Covenant brought upon these words covenant promise and agree that the Lessee should quietly occupy and injoy the Lands demised for and during the terme of seven years and the Plaintiff shews that an Estranger entred upon the Land and shews not that he entred by Title and the Court was of opinion that it was naught because it did not appear that he had a good Title to enter Dedit concessit imply a Warranty for Life and Judgement was given for the Defendant because the Breach was naught HIcks versus Action of Covenant brought and the Land alleadged to be in Weston alias Weston Vnderwood and the Venn was de visu de VVeston Vnderwood and it was alleadged by the Defendant that the Venn was mis-awarded because it was not of VVeston onely but the Court was of a contrary opinion that it was well awarded and Judgement for the Plaintiff CAstilion al. versus Smith Exec. Smith Trin. 17. Jac. rotulo 1849. Action of Covenant brought against the Defendant and the breach of Covenant alleadged to be in the time of the Executor and the Judgement was entred of the Goods of the Testators the Breach was for plowing of Land contrary to Covenant RIdent versus Took Hill 13. Jac. rotulo 3516. Action of Covenant brought to discharge the Plaintiff of a single Bill in which he was bound for the Debt of the Defendant and he alleadges for Breach non-payment and a Suit and recovery at Law for the Money which remained in force The Defendant pleaded that he paid the Money at the Day and thereof gave the Plaintiff notice before the purchasing his Writ the Plaintiff demurs and the Court held the Plea naught and Judgement for the Plaintiff Actions upon Account WIlloughby against Small An Action of Account brought against the Defendant as Receiver of the Plaintiffs Money The Defendant pleads that he never was Receiver where he hath a Release from the Plaintiff whereby he shall lose the benefit of his Release for that he cannot give that in Evidence upon such Issue The Process herein is Summons Pone Distress and upon a Nichil returned
Damages c. An Assise brought and the Grant was of the Herbage and Pannage c. and whether this were good or no some held it void for the incertainty of the Grant when it should begin Sir Edward Cook held the Grant good for if the King make a Lease for Life and granteth the Land without reciting the state to one for life this is a good Grant for Life of the Reversion to begin immediately after the Death of the Tenant for Life Trin. 7. Jacobi rotulo 35. An Assise brought for the Office of a Harald at the Funeral of the Earle of Exceter and the great Question was where the view should be made and it was alledged that it should be made in the place where he exercised his Office but the Court doubted of that but they were examined of the view made in the Abbey of Westminster being the place where the Funeral was performed and the Court were of opinion that in Dower where Tithes are demanded no view lies for of things that are invisible no view lies but the Tenant in such case shall be denied it SIr William Saint Andrew brought an Assise de Darrein Presentment against the Arch-bishop of York the Countess of Shrewsbury and F. H. for the Church of O. in the County of Nott. The Archbio p and H. appeared and the Countess did not appear and though the Countess made Default yet the Assise was not taken against her by Default but a re-summons was awarded against the Countess and the same Day given to the Arch-bishop and H. and a Habeas Corpora against the Recognisors And note the Tenants that appeared pleaded in abatement that a Writ of Quare impedit for the said Church was hanging in such a Court between the same parties and the Assise was brought afterwards and with this agrees the Register and it was adjudged a good Plea The Writ was returned in this manner Pleg de prosequend John Doo Richard Roo The within named Arch-bishop and Countess are attached and either of them is attached per Pleg H. S. N. J. And the within named H. hath nothing in the Sheriffs Bailywick by which he may be attached nor hath a Baily within his Liberty nor is therein found and the residue of the Execution c. and Judgement given that the Writ should abate and the like was in the Earle of Bedfords case where two Quare impedits were brought one after another and the last Writ abated J. Lovelace versus Baronissam Despencer R. Harvey Clericum Trin. 12. Jac. rotulo 74. de Darrien Presentment for the Church of M. And the said H. being solemnly exacted came not and the Sheriff made a Return that he was summoned by J. O. and W. C. and therefore the Assise was to be taken against him by Default but the said Baromsh by T. her Attourney faith the Assise ought not to be so taken and confesses the said J. was the person last presented but conveys a Title to her self of the Mannour to which the presentation belongs and that being so seised the Plaintiff in the Assise by usurpation presents the Clerk in the Count whereupon the Defendant brought a Quare impedit and hanging the Writ the Clerk in the Count dies and the Plaintiff presented the Clerk that made Default who by vertue of that presentation is yet Parson of the said Church by which she is seised of the Advowson as in her former Estate and so she saith that the Presentation of the said J. by the said L. made ought not to prejudice her and a Demurrer upon this Plea and that the Assise should remain to be taken c. for want of Recognisors and the Sheriff was commanded to distrain them c. and Judgement given that the Plea was good but quaere of the Declaration whether sufficient because it was not alleadged that he that presented was seised of the Advowson Pasch 8. Jac. rotulo 31. An Assise brought for the Office of Clock-keeper of and it was held that it must be an ancient Office and because they could not prove that it was an ancient Office the Plaintiff was non-suit and the Plaintiff shewed a Grant of the same in E. 6. time but that was held no ancient time Pasch 6. Jacobi It was held by the whole Court that an Assise of Sadler to the Queen would not lie being granted to one by the King but was held void by the whole Court for the King cannot make an Officer to the Queen and by the Patent no place was expressed where he should injoy and exercise his Office and take the Profits and therefore the Jury could not have the view and for that cause an Assise cannot be taken and if the King should grant the Office of Usher to his Son the Prince an Assise would not lie An Assise brought against Demetrius the Plaintiff was non-suit and Demetrius moved to have Cost and it was denied by the whole Court because an Assise is not within the words of the Statute Audita Quaerela BIrd versus Kirton Trin. 13. Jacobi rotulo 3118. An Audita Quaerela brought and the case was this Bird and Milles were bound to Kirton and Kirton makes a Bond to Milles in the summ of 100. l. that if Milles be not sued upon the first Bond then that shall be void and it was alleadged that Kirton did both sue Milles and Bird and that he had no notice of the second Bond that he might have pleaded it and so pretends that the second Bond should be a Defeasance of the first and Judgement was given for the Defendant BEck brought an Audita Quaerela and surmises the matter following that Boon Administrator of C. brought his Action of Debt upon an Obligation and before Judgement that Administration was revoked and Administration granted to another and notwithstanding the Revocation he procured Judgement and the second Administrator released and the rest brought an Audita Quaerela upon that Release and the Court would not grant a Supersedeas because the Revocation was but matter in fait for that Revocation was not under Seal and the first Administrator might appeal Cases in Law and Notes IF a Writ of Covenant be brought against two and if one acknowledge the Fine before one of the Justices and the other acknowledge by Dedimus or before another Justice that Fine cannot be proceeded upon these two acknowledgements by the opinion of the Court. A Writ of Covenant was brought against three men and their Wives and onely two men and their Wives acknowledged the Fine and the other Husband and Wife never acknowledged and the Fine was sued as a Fine acknowledged by all and it was desired the Fine might be amended and the Man and Wife that did not acknowledge might be put out but the Court would not grant it If I make a Lease for years reserving Rent during the Life of A. and B. if one of them die
the Rent is gone If I make a Lease for Life reserving a Rent to me and my Executor neither the Executor nor the Heir shall have the Rent Justice Walmsley held this difference in making a Lease to two during their Lives if one die the other shall have it otherwise it is if it be made to one during the Life of two and one of them die in this case the Lease is ended and there is difference between a reservation of Rent and Lease for Reservation is according to the will and pleasure of the Lessor and Justice Walmsley said if a Lessee for years granteth a Rent to A. during the Life of B. and C. this Reservation is good although one should die which Sir Edward Cook denied and Judgement was given for the Plaintiff in Hills case If I make a Lease for years reserving a Rent and then I grant demise and to farm let Reversionem domus for years and the Rent to have and to hold the Reversion and the Rent from a time past if the Lessee cannot get an Attornement yet it is a good Lease in Reversion and shall take effect after the end of the first Lease habendum terram habendum reversionem est terra revertens and no difference If the Husband with his own money purchaseth for his Wives Joynture Land to them and the Heirs of their two Bodies the Remainder in Fee to the Wife and they have Issue two Sons and the Husband dieth and the Wife suffereth a Recovery to the use of the youngest Son the eldest Son notwithstanding shall have the Land by the Statute of Joyntures Hill 6. Jac. If I set-out my Corn and after take it away the Parson may sue me in the Spiritual Court or bring an Action of Trespass against me but if the Parson sue in the Spiritual Court a stranger for taking away the Tithes which were set out this is a Praemunire in the Parson Tenant at will shall pay his Rent when he holdeth over his terme but Tenant at sufferance shall not pay any Rent if a man hold over his terme and pay his old Rent he shall be accounted Tenant at will For one joynt Debt for one Contract you cannot plead Nil debet for part and demur for the rest for he pleads Nil debet and the matter in Law is reserved Licet saepius requisit is a sufficient Request upon a Bond because it is a Debt Unto an Action brought against a man upon a Bond pleads Denis age the case was this that when the Obligation was sealed and delivered the Defendant was of full age but at the time when the Bond bore Date he was under age and at the Assises the Judge there ruled that at the time of making the Bond was when the Bond was sealed and not when it bore Date The Court were of opinion that where a Bishop holds Land discharged of Tithes and he makes a Feofment of the Land the Feoffee shall be discharged of Tithes and the like if the King hath ancient Forest-land discharged of Tithes and the King grants this Land the Grantee is discharged of Tithes and it is a general Rule that he which may have Tithes may be discharged of Tithes If I let Land for years reserving Rent if I command one to put his Cattle into the Land I cannot distrain them for my commandement is a wrong and an Action of case will lie against the commandor If I make a Lease and bid the Tenants cut down the Trees yet I may have an Action of waste against my Lessee In Sir Cheydens case the commandment to take Possession was void unless he had commanded him to expell the Tenant and then he might joyn either to distrain or bring an Action of Debt for the Lease was made by him and two more 28 H. 8. If I make a Lease to the Husband and Wife covenant to do no waste or repair Houses and the Husband dieth and the Wife surviveth and holdeth in if the Wife commit waste or not repair the House no Action lieth against the Wife but to such a Lease the Wife is tied to pay the Rent or to perform a condition made by the part of the Lessor but not observe or perform Covenants of the Lessee Pasch 10. Jacobi The Court much doubted whether one that had a Park and was used to pay one Shoulder of Deer for all manner of Tithes and the Park is dis-parked should now pay Tithes in kinde or not For Wooll and Lamb no Action upon the Statute for not setting out of Tithes for they are no predial Tithes and no Action lies upon this Statute for small Tithes An Administration granted durand minori aetate execut is not within the Statute of 21 H. 8. And by the Civil Law the Judge may after Administration by him granted revoke it and grant it to another And if an Administration be granted to a Feme Covert yet she shall sue in their Court as a Feme sole One Briefly married an Administratrix and entred into Bonds for the Intestates Debts and afterwards the Wife leaveth her Husband and refuseth the Administration and it was granted to another and now B. prayeth a Prohibition for that he may be sued for Debts and denied by the Court untill he be sued This Administration was first granted by Doctor B. and after by him revoked and a new granted by him to the Wives Brother and afterwards he revoked that and established the first Administration and the Appeal A Feofment in Fee by Deed indented Rent reserved it is good but without Deed cannot reserve Rent If Land be devised by three upon condition to pay them 100. l. equally to be divided and one of them dieth his Executor or Administrator shall have the Money and so it is if one were bound to pay Money The Commissary granted Administration of the Intestates Goods to the Wife and did make a Divident of his Estate to some of the rest of his Kindred and this was-held not to be warranted by Law and more then the Ordinary could do because the Administratrix is chargeable to pay all Debts and Promises of the Intestate and to bring up his Children which she cannot do if the Goods be taken away Vbi delinquit ibi punietur If a Copy-holder of Inheritance accept a Lease for years of his Copy-hold the Copy-hold is gone by the opinion of the whole Court If a Legacy be granted of Land this shall not be sued for in the Spiritual Court but if one by Will devise Land to be sold for payment of Legacies this shall be sued for in the Spiritual Court by the opinion of the whole Court If two Fulling-mils be under one Roof and a rate-tithe paid for the Mils and after you alter these Mils and make one a Corn-mill your Rate is gone and you must pay Tithes in kinde or if you have but one
pair of Stones in your Mill and pay a Rate for them then if you put on another pair of Stones new Tithes must be paid in kinde If one in Fee make a Lease for Life and after granteth a Rent-charge if the Grantors Cattle come upon the Ground I may distrain them although I cannot distrain the Tenant in Possession but the Grantor cannot avoid it If the condition of a Bond be to discharge a Messuage of all Incumberances then one may plead generally that he did discharge it of all Incumberances but if it be to discharge it of such a Lease then I must shew how If a man devise his Trees to his Executors to pay his Debts the Executor must in convenient time cut down the Wood. And so if a man sell his Trees the Vendee must sell them in a convenient time If I grant you out of my Mannour 10. l. per ann and recite but five pounds the Recitall shall not diminish the Grant And so if I grant you ten pounds out of my Mannor and recite 20. l. this shall not inlarge it If I infeoff two of Land habendum to me in Fee and habendum to the other in Fee they are Tenants in common In the Court of Wards one Dymack was a Purchasor by Bargain and Sale and before inrolment D. dies and after his Death the Indenture was inrolled the Question was whether his Son shall be in Ward for the Land and it was adjudged that he is Heir to the Land and is in by the Statute of 27 Eliz. of Bargains and Sales and not by the Statute of Uses My Lord Hobard held that if an Executor pay a Bond made upon a usurious Contract it shall be a Devastavit in the Executor and if he be bound to present one to a Church and he present one upon a Simonaical Contract the Bond is broken Hill 10. Jac. Resolved if one make a Lease of a Mannour reserving Rent and afterwards the Lessor grants the Reversion of forty acres thereof now if an Action of Debt be brought by the Grantee he may aver the rate of the Acre and if the Defendant plead Nil debet per patriam the Jury shall rate the value and although the value be found less by the Jury then the Plaintiff surmiseth yet the Plaintiff shall recover after the proportion For Acts in Law no Attornement is necessary as if a Lease made for years reserving a Rent which is assigned to a Woman for Dower she shall have the Rent without Attornement In Cambels case upon an Elegit returned that the Lessor was seised in Fee and that by vertue of the Judgement the moity was delivered to the Plaintiff and for the Rent reserved upon the Lease for years before Judgement If a man top a Tree under the growth of 21. years and suffer the body to grow and afterwards when the boughes are grown out again he doth lop and top it again I shall pay no Tithes although the Tree was not priviledged at the first cutting by the opinion of the whole Court If a Debt be recovered in a Court of Record that Debt cannot be assigned over to any man by the opinion of the whole Court Mich. 10. Jac. Pasch 14. If Money be to be paid upon proof made there the triall shall be the proof to be made before but if it be to pay Money within 3. Moneths after proof there proof must be made first but if it be upon proof before A. then proof being made before A. this extending proof shall tie the party but Warburton held the contrary and he resembled this to a surmise to have a prohibition which is no binding proof for the Jury may pass against the proof in the surmise when a Bond is to pay Money upon proof this is a legal proof by Law if it be laid generally to be paid by proof if it were by proof before two Justices or two Aldermen this shall be intended a sufficient proof when the Action shall be brought upon the Bond and if the Defendant say that due proof was not made then they shall say that before the two Justices c. it was proved by testimony before them and then the Judges shall judge whether it be a sufficient proof or not If I devise Lands to my Executors for three years for the payment of my Debts this is Assetts in the Executors hands but if I devise my Land to be sold for the payment of my Debts it is no Assets before it be sold Mich. 9. Jacobi It was held in the Common Pleas by the whole Court that in the Kings case the consideration of the Money paid is never to be proved Likewise in a common case of Bargain and Sale in consideration of Money paid where in truth none was paid yet it is good and the Bargainee is not tied to prove the Payment for the Bargainer may have an Action of Debt If a Legacy be granted out of Leases and a Suit in the Spiritual Court for this shall not be prohibited but otherwise it is if it were out of Fee Simple Lands HE le versus Frettenden Resolution upon two Cases upon the Statute of E. 6. for not setting forth of Tithes Videlicet A man possessed of Corn sels it and before two Witnesses sets out his Tithes and afterwards privately takes away his Tithes and the Parson sues him upon the Statute of treble Damages for not setting forth of Tithes and the Defendant proves by Witnesses that he set forth his Tithes yet this Fraud is helped for the words are without fraud or deceit In the second case one secretly sels his Corn to one who was not known and afterwards the Vendee commands the Vendor to cut the Corn which he doth and takes away the whole Corn without setting forth his Tithes and the Question was who should be sued for the Tithes and the Court held the first Vendor should be sued for it was fraudulent If a man be found guilty of Felony and after receives his Pardon he shall not be Legalis home to pass upon a Jury If a Venire facias be against an Arch-bishop the Venire facias shall be Tam milites quam alios liberos c. because he is a Lord of the Parliament If a man be obliged in a Statute staple his Copy-hold Land is not extendable but it is upon a Statute of Bankrupt If a man have Common in three Acres and purchase one of the three Acres his Common is extinct If a man of the Cinque Ports shall come to London he may be there arrested and shall not have the Priviledge of the Cinque Ports Difference between those things which are in the Prender and such things that are in the Render for if I take not such things as are in Prender according to my Prescription it is void If I have Estovers in Woods to be taken every other year if I
he be Lord or Free-holder The best badge of truth is the usage of taking the profit of the Trees 11 H. 4. rot 80. Where the Court ex officio should inquire and that omitted the Court may supply it but where an Attaint lyeth that is not to be supplied as in a Valore Maritagii the value is the point of the Writ and if that be omitted by the Jury never to be supplied by Writ Cheyneys case Valore Maritagii and intrusion were at the Common Law before the Statute and the Statute doth but inlarge the Common Law for by the Statute the Judgement is otherwise then at the Common Law It is vain to plead the Execution of a Writ of Seisin upon a Recovery but to plead that he did enter MIch 10. Jac. If I purchase Land by a name and alleadge it to be in a wrong Parish or Shire it is good notwithstanding the mistake by the Court. A stranger shall be bound by a Law made for the publique good but he must come within the place where it was made The King cannot grant precedency in publique things as to go by Water or by passage on the Land as by Coach if a Bond bear Date Super altum mare then it must-be sued onely in the Admiral Court otherwise it cannot be sued there Every Bishop hath his Cathedral and Councel and the Councel and Bishop there decide matters of Controversie the Prebends have their names from their affording of help to the Bishop and in time of the vacancy of the Bishop the Arch-bishop is Guardian of the Spiritualties and not the Dean and Chapter TRin. 14. Jac. rotulo 1810. Birtbrook versus Battersby Exception raken after Triall The Action was laid in Westmerland and the Jurata written at the end of the Record was Ebor. ss ura Inter c. and recites the Day of Triall in the County of York and the place where the Triall was at York and prayed that it might be amended and it was granted to be amended by the whole Court INt. Bullen Jarvis The Venire facias was made in this Form Videlicet Liberos legales homines de B. and it should have been De vicineto de B. and it was notwithstanding held good and amendable by the Roll for it shall be intended that the Jurors are inhabiting in the Town of B. although the Sheriff returns the Jurors of other places and none of them be named of B. and the Venire facias was returned by A. B. Ar. without naming him Vic. and it was amended by the Court. GRiffin versus Palmer Trin. 15. Jac. rotulo 924. Issue taken whether the Lands contained in the Fine were ancient Demesne or not pretending they were parcell of the Mannour of Bowden in the County of Northampton which was pretended to be ancient Demesne and the Doomesday Book was brought into the Court and by that Book it appeared that the Mannour of Bowden was in the County of Leicester and not in the County of Northampton but the Councel affirmed that the Mannour was both in the County of Leicester and Northampton but it valued not for the Doomsday Book was against the Plaintiff The Court was moved to amend a Venire facias which was Album Breve but the Court would not grant it although the Sheriffs name was put to the Pannell but if the Sheriff upon the Venire facias had returned that the Execution of that Writ did appear in a certain Pannell annexed to that Writ and had not put his name to the Writ of Venire facias but to the Pannell in such case the Court would have amended the Venire facias Lessee at will cannot grant one his Estate if one occupy with Tenant at will this is no Disseisin to the Lessor If a Tenant for seven years suffer Trees to grow above the age of 21. years they are Timber and it is waste to cut them Tenant at will shall pay his Rent when he holdeth over his terme but Tenant at sufferance shall not pay any Rent If a man holdeth over his terme and pay his old Rent he shall be accounted Tenant at will If one being sick giveth Notes to make his Will and after by infirmity of sickness he becometh so weak that his memory faileth him and these Notes are made into a Will this is a good Will otherwise it is if he become lunatique after the Notes given MIch 15. Jacobi One Warter was committed to the Fleet by the Lord Treasurer of England and the Prisoner was brought to the Common Pleas by Habeas Corpus which was returned and no cause of the Commitment expressed and for that cause the Prisoner was set at liberty and bailed TRinity Terme 15. Jacobi Hanson one of the Attorneys of the Common Pleas delivers a Note to the Sheriffs Clerk of the names of divers Jurors that were to be returned and of divers others that were not to be returned in a case concerning one Butler and for this Offence he was put out of the Roll of Attorneys In Spilmans case if I have Estovers in Land and cut down Estovers and a stranger taketh away the Estovers I shall have an Action against him that taketh them away although he have there Common of Estovers also If the Husband sow the Ground and die the Executors and not the Heir shall have the Corn but if the Father sow the Land and dieth or the Heir sow the Land and the Wife recover Seisin in Dower she shall have the Corn. The setting open a Shop on the Sabbath day is punishable by Statute Law and so is a House of Bawdry and not to be dealt with by the high Commissioners So long as the Land is occupied by him that hath the Fee-simple which did formerly belong to the Order of the Cistercians it shall pay no Tithes but if he let it for years or life the Tenant shall pay Tithes HIll 11. Jac. rotulo 90. A Recovery was had upon a Writ of Entry in le post for a common Recovery between Hartley and Towers in the County of Bucks the Attorney who prosecuted the Recovery by negligence did not file the Writ of Entry which was prosecuted orderly and all Fees paid when the Recovery was passed And in Easter Terme 14. Jac. it was moved that the Writ of Entry might be filed and it was granted although the Tenant was dead the Writ of Entry was returnable Octabis Purificationis MIch 14. Jacobi My Lord Hubbard Justice Warburton and Winch held that when there were but three Judges of the Common-Pleas they might argue Demurrs and if two of them were of one minde and one of the other the Judgement should be given according to their opinions My Lord Cook said that for the Body of the Church the Ordinary is to place and displace in the Chancell the Freehold is in the Parson and it is parcell of his Gleab Tpespass will
Arbitrator for else the Bond remaines as single and so in this Case the Defendant pleads that the Arbitrator made an Award and that it was delivered by the Arbitrator but whether it was delivered in writing or under his hand according to the Submission is not pleaded and therefore it is no Answer to the Plaintiff for he hath not pleaded an Award made according to the Condition and therefore the Bond is single Yea Cook argued for the Defendant and said that the Plaintiff by the Demurrer had confessed that the Arbitrator had made no Award as the Defendant had pleaded and then he shal never have Judgement for if it may judicially appear to the Court that the Plaintiff had no Cause of Action he shall never have Judgement and that the Plaintiff ought to have averred and joyned with a Traverse of that the Defendant pleaded to wit that the Arbitrator had made an Award and delivered it in writing under his hand and seal without that c. and as to the other matter of the Trespasse the same Day and so he might have demanded Judgement for his Plea doth but amount to the general Issue that the Arbitrators made no Award but Yelverton answered that it could not be pleaded in any other manner then he had pleaded it because he could not traverse it because the Defendant himself had pleaded that he made an Award and although the Demurrer confesse all matters in Deed yet they are such onely as are well pleaded as Burtons Case 5. Rep. 69. And also although the Award pleaded cannot be intended the same Award specified in the Condition yet the Plaintiff had good cause of Action and all the Court Fleming being absent were of opinion that the Plaintiff ought to recover for the Reasons before alleadged but as for that point whether the Controversie that grew in the morning should be arbitrated because there cannot be a fraction of Dayes it was not argued nor any opinion of the Court delivered onely Cook cited 5 E. 4. 208. that the Arbitrator ought to arbitrate of that because the Condition was of all matters untill the making the Obligation WHeeler versus Hayden Trin. 11. Jacobi W. Parson of the Church of A. brought an Action of Debt against the Defendant for Arrerages of Rent and declared upon a Lease made to the Defendant for four years if the Plaintiff did so long live and continue Parson c. and upon a Non demisit pleaded the Jury found an especial Verdict to wit that the Plaintiff had leased it to the Defendant for four years if the Plaintiff shall so long live onely and whether this Verdict was found for the Plaintiff or Defendant was the Question and Cook Serj. seemed that it was found for the Plaintiff for the main matter was that he should lease it if he so long lived and the subsequent words are of no effect because they contained no more then by the Law was before spoke of for the Law sayes that if he be non-resident or if he resign or be deprived that the Lease shall be determined like to the 30. Ass 8. A Lease to two and the longest Liver of them and the 17 E. 3. 7. A. A Lease to one of Land and a House for years and that the Lessee may make good profit of it this last Clause in both is idle and Dallidge was of the same opinion but Yelverton against them for the Plaintiff had intituled himself to the Action by such a Cause and if he fail in that it is his folly and shall not recover for the Lease upon which he declared had two Determinations the first by Death the second by removing and the Jury had found the Lease onely upon the first Determination and therefore various in substance and therefore the Jury have found against the Plaintiff as if a Lease be made by Baron and Feme if they shall so long live continue married both of them ought to be found Haughton to the same purpose for when a Parson makes a Lease if he shall so long live he doth take upon himself that he will do no Act by which the Lease shall be determined but onely by his Death for otherwise an Action of Covenant will lie against him but if the other Clause be added to wit and shall so long continue Parson then he may resign or be non-resident without danger and so there is great difference between the Verdict and Declaration and it was adjourned the Court being divided in opinion Dower MIch 6. Jacobi Dower may be brought as well against the Heir himself as against the Committee of the Ward but if an Infant be in Ward to a Lord in Chivalry the Dower shall be brought against the Guardian in Chivalry If Dower be brought against one who is not Tenant of the Free-hold the Tenant before Judgement shall be received and upon Default of the Tenant and after Judgement he may falsifie MIch 9. Jac. Dower demanded of the third part of Tithes of Wooll and Lamb in three several Townes and it was demanded of the Court how the Sheriff should deliver Seisin and the Court held it the best way for the Sheriff to deliver the third part of the tenth part and the third tenth Lamb Videlicet the thirtieth Lamb. In Dower against the Lord Morley the Tenant at the Day of taking of the Inquest after the Jury had appeared and before the Jury were sworn made Default and a Pety Cape was awarded and the Tenant at the Day in Banck informed the Court that the Tenant is but Tenant for Tenant for Life and that the Reversion is in one P. who at the Return in Banck ought to be received to save his Title and the Court appointed him at the Return of the Pety Cape to plead his Plea HIH. 13. Jacobi Allen and his Wife Demandants versus Walter in Dower of a Free-hold in Munden Magna Munden Parva B. the Sheriff returned Pleg de prosequend J. D. R. R. And the Names of the Summoners J. D. R. F. And after the Summons made and by the space of fourteen Dayes and more before the Return of the said Writ at the most usual Church Door of Munden Magna where part of the Tenements lay upon the 27. of October being the Lords Day immediately after Sermon ended in that Church he publikely proclaimed all and singular things contained in that Writ to be proclaimed according to the Form of the Statute in that behalf made and provided L. P. Ar. Vic. And Exception was taken to the Return because Proclamation was not made at the Doors of the Churches where the Lands lay and the Court held it not necessary but it was sufficient to make Proclamation at any of the Churches but the Return was insufficient because he said that he had caused to be proclaimed all and singular in that Writ contained and sayes not what and the Demandant released his Default upon the grand Cape CLefold versus
Carr. The Tenant in Dower before the value inquired of and Damages found brought a Writ of Error and by the opinion of the whole Court a Writ of Error would not lie for the Judgement is not perfect untill the value be inquired upon The Demand in Dower was of the third part of two Messuages in three parts to be divided and the Judgement was to recover Seisin of the third part of the Tenements aforesaid with the Appurtenances to hold to him in severally by Meets and Bounds and adjudged naught because they are Tenants in common and the Judgement ought to be to hold to him together and in common but if it had been in three parts divided it had been good Actions in Ejectment ALlen versus Nash Hill 5. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and a special Verdict upon a Surrender of Copy-hold Land which was to the use of the second Son for Life after the Death of the Tenant and his Heirs and it was adjudged not to be good in a Surrender for though it be good in a Will yet Implication is not good in a Surrender and in Copy-hold Cases a Surrender to the use c. this no use but an Explanation how the Land shall go if the Lord grant the Land in other manner then I appoint it is void if there be found Joynt-tenants and one Surrender to the use of his Will it was a Breach of the Joinder and the Will good EYer versus Bannaster Trîn 16. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and declared upon a Lease made by Ed. Kynaston to which the Defendant pleads not guilty and the Plaintiff alleadges a Challenge that the Wife of the Sheriff is Cosin to the Plaintiff and desires a Venire facias to the Coroners and the Defendant denied it and so a Venire was made to the Sheriff and at the Assises the Defendant challenges the Array because the Pannell was arrayed by the Sheriff who married the Daughter of the Wife of the Lessor and note the first Challenge was made after the Issue joyned and at the Assises the Defendant challenged as above and a demurrer to it and Hutton held that a Challenge could not be after a challenge except it were for some cause that did arise after the challenge made and that the party ought to rely upon one cause of challenge though he had many causes observe the Defendant could not challenge the Array untill the Assises but Husband held that a Challenge might be upon a Challenge but this challenge was adjudged naught by all the Judges HIll versus Scale Trin. 16 Jacobi rotulo 5. 18. the Plaintiff brought an Ejectione firmae and declares upon a Demise made to the Plaintiff by J. C. bearing date the first of January anno 15. and sealed and delivered the twelfth of January following to hold from Christmasse then last past for two years the Jury found a speciall Verdict and found the Lease and a Letter of Atturney to execute the Lease in this manner that the Lessor was seised of the Land in Fee and being so seised he made signed and sealed an Indenture of a Demise of the said Tenements and found it in haec verba this Indenture c. and they further found that the Lessor the said fifth day of January did not deliver the said Indenture of Demise to the Plaintiff as his Deed but that the Lessor the said fifth day of January by his writing bearing Date the same Day gave full power and authority to one C. to enter into all the premises and to take possession thereof in the name of the Lessor and after possession so taken to deliver the said Indenture of Demise to the Plaintiff upon any part of the premises in the name of the Lessor and find the Letter of Atturney in haec verba To all c. whereas I the said J. C. by my Indenture of Lease bearing date with these Presents have demised granted and to Farm let c. for and during the Term of two years c. and they further find that the said C. such a day as Atturney to the Lessor by vertue of that writing did enter into the Tenements aforesaid and took possession thereof to the use of the Lessor and immediately after possession so taken the said C. did deliver the said Indenture of Demise upon the Tenements as the Lessors Deed to the Plaintiff to have c. and the doubt was because the Lessor in the Letter of Attorney and said that whereas he had demised and if it were a Demise then the Letter of Attorney was idle but notwithstanding the Court gave Judgement for the Plaintiff WEeks versus Mesey An Ejectione firmae brought against two and one of them was an estranger and was in the house and the principall would not appear and the other appeared and pleaded non informat and the Court was acquainted with the proceedings and the Plaintiff prayed an habere facias possessionem and the Court told the Plaintiff that by that Writ and recovery he could not remove him that had Right when a Lease is made to bring an Ejectment of Land in divers mens hands then they must enter into one of the parcells and leave one in that place and then must he go unto another and leave one there and so of the rest and then after he hath made the last Entry there he sealeth and delivereth the Lease and then those men that were left there must come out of the Land and this is a good executing of the Lease and Pasch the ninth of James the Court held that an Ejectment would not ly of Common pasture or of Sheep-gate BEamont versus Cook Trin. 13 Jacobi An exception taken in Ejectment because the Originall was teste the very same day that the Ejectment was made and adjudged good by the whole Court and one Goodhall brought an originall in Ejectment against Hill and three others and the Plaintiff counts against three of the Defendants and no simulcum against the fourth and this matter was moved in arrest of Judgement And the Judgement was stayed by the whole Court COronder versus Clerk Hill 10 Jacobi rotulo 3315. Action upon an Ejectment brought the Jury found it specially upon a Devise the words of the Will were to my right Heires Males and posterity of my name part and part like the question was who should have the Land and the Court held the Land must go to the Heire at the Common Law and not according to the words of the Will because they cannot consist with the grounds of Law a Will must be construed in all parts the brother cannot have it by the Devise because he is not Heir and the Daughters cannot for they are not Heirs and posterity and therefore neither of them could have it because they are not Heirs and posterity because they that take it must be Heir and posterity
A special Verdict in an Ejectione firme the Question was upon the words of the Will which were that her Husband had given all to her and nothing from her and whether these words imply a consent and so an Agreement to the Devise of the Husband or no. And Foster Warburton and Walmsley that it was an Assent but Sir Edward Cook was of a contrary opinion and note she was made sole Executrix and she proved the Will and Justice Foster held it to be an Assent in Law The property of Goods cannot be in obayance they must be in the Executor Administrator or Ordinary and Warburton held that the words made an Assent and said that when the Bond is delivered to one to the use of another untill he dis-assent it is his Deed but when he dis-assenteth then it is not his Deed Ab initio if a Lease be given by Will to divers and made one of them his Executor in this Case the Executor must make his special Claime else he must have it as Executor and Sir Edward Cook held that the general Entry and proof of the Will is no Assent she must first have it as an Executor before she can have it as a Legatee a Legacy is waiveable but if the Law work it in me whether I will or no then I cannot waive it and therefore he held she should enter specially ROlles versus Mason Hill 6. Jacobi rotulo 2613. An Ejectment brought and the Question grew upon two Customes one was that the Copy-holder for Life may name to the Lord of the Mannour who should be his Successor in the Copy-hold and the other that the Copy-holder for Life may cut down all the Trees of wrong upon the customary Land and the third Question was whether the second Lessee of the Mannour may take advantage of the pretended Forfeiture for cutting down the Trees by the Law a Copy-holder shall have house-boot free-boot and hedge-boot and common of Turbary to burn in his house but he cannot sell them A Copy-holder by Custome may name his Successor and if the Lord refuse to admit him the Homage may set a reasonable Fine and so he shall be admitted The Lessee of the Mannour may take advantage of the Forfeiture but in this Case it is no Forfeiture and the Copy-holder may cut downe Trees for he hath a greater Estate then a sole Tenant for Life because he shall name his Successor APrescription goeth to one man and a Custome to many and Judgement for the Defendant MAson versus Strecher alios Pasch 7. Jacobi rotulo 606. An Ejectment brought for the Mannour of P. it was held by the Court that the consent of a Servant in the absence of him who is possessed of the Terme shall not out his Master of the Possession because the Servant hath no interest in the Land CRamporne versus Freshwater Pach 8 Jacobi rotulo 2742. An action of Debt brought upon an Ejectment the Plaintiff was non-suit upon his own Evidence because he declared upon a Devise made for three years and it was confessed by the Plaintiff that the Lands were Copy-hold Land and that the Plaintiff had not license to demise them for three years neither could he prove that by any custome he could demise them for three years without a license and so the Lessor was taken for a Disseisor by the opinion of the Court. CAffe versus Randall Trin. 9. Jac. rotulo 3299. An Ejectment brought against Randall and his Wife the Ejectment made by the Wife and not guilty pleaded and tried and it was moved in Arrest of Judgment because the Issue was pleaded in this manner Et dicunt quod ipsi in nullo sunt culpabiles c. And the Ejectment was made by the woman alone and ought to have been that she was not guilty and upon examination of the Plea Rol and Record of Nisi prius it appeared to the Court that the Plea Roll was right but the Record of Nisi prius mistaken but Serjeant Barker said that at the time when the Record of Nisi prius was tried the Plea roll agreed with the Record and was afterwards amended and Waller the prothonotary confessed that he amended the plea rol as upon his private examination of the roll but without notice that there was a Record sent down to try that Issue and therefore the Court ordered that the Record of Nisi prius should be amended according to the Plea roll which was done accordingly PAts versus Chitty Trin. 9. Iac. rotulo 2151. vel 2151. An Action of ejectment brought the Defendant pleads a concord with satisfaction in Bar the Plaintiff demurs and it was held by Winch and Foster a good Plea because the Action is not only in the realty for he recovers damages and possession which are meer Chattells Secondly Because the Defendant pleads the satisfaction as in discharge of that Action and all others and ten shillings for rests Warburton of the same opinion and he vouched the like case satisfaction is good Plea in a Quare impedit wherein a man recovers the presentation And Cook said that in all Actions wherein money or Damages are recoverable as well wherein the Defendant might wage his Law as wherein he might not it is a good Plea Pasc 3. Jacobi rotulo 1033. Eden and Blake but in matters where one Free-hold or Inheritance is recoverable concord is no Barr and in dower recompence in other Lands or Rent is no Barr. But by petition in Chancery but Rent Issuing out of the same Land demanded is a good Barr and in all Actions Quare vi armis wherein process of Outlary lies by the common Law concord or an Award is a good Barr 38 H. 6. title Barr satisfaction in trespass by an Estranger is a good Barr although it be without notice of the trespassor by the opinion of the whole Court CRaddock versus Iones Trin. Iacobi rotulo 2284. An Ejectment brought and declares upon a Lease made by W. Cotton Knight the Defendant pleads not guilty and makes a challenge and praies a venire facias to the Coroners because the Sheriff is Cozen to the Lessors Wife which is not a principle challenge but by favour and after a Triall and Verdict it was amended in arrest of the Judgment because it was mistried and Barker vouched a case in the Exchequer Chamber in 43 El. upon a Writ of Error between Higgins and Spicer upon a Venire facias awarded in the like manner and it was adjudged to be mistryed and it was then agreed that misconveyance of process is where one Writ is awarded in place of another to an Officer which of right ought to execute that process and he returns it this is helped after a Verdict by the Statute But if a writ be awarded to an Officer who ought not to execute that process and he returns it this is a mistriall and not helped by the Statute and Warburton said that Dyer
folio 367. To the contrary is not Law two Tenements in Common joyne in a Lease for years to bring an Ejectment and declare that whereas they did demise the Tenements and it was held nought for it is a severall Lease of moities and if they had declared that one of them had demised one moity and the other another moity it had been good WIlson versus Rich Pasch 44. Eliz. The Husband and Wife joyn in a Lease by Indenture to A. rendring Rent and this is for years and make a Letter of Attorney to seal and deliver the Lease upon the Land which is done accordingly A. brings an Ejectmentand declares upon a Demise made by the Husband and Wife and upon Evidence to the Jury ruled by Popham Fenner and Yelverton that the Lease did not maintain the Declaration for a Woman covert could not make a Letter of Attorney to deliver a Lease upon the Land although Rent was reserved by the Lease and so the Warrant of Attorney is meerly void and the Lease is onely the Lease of the Husband which is not made good by the Declaration by the opinion of the Court. STretton versus Cush Pasch 1. Jacobi J. L. leased a House for fourscore years in which Lease there is one Condition that the Lessee his Executors and Assignes should keep and maintain the House in reparation and if upon lawfull warning given by the Lessor his Heires and Assignes c. to enter the Lessee for fourscore years leases the House to A. for thirty years and A. leases it to Wilmore for fifteen years the Assignee of the Reversion came to the House and seeing it in decay gave warning to Wilmore then possessed of that House to repair it which was not done within six Moneths by reason whereof the Assignee entred for the Condition broken and upon a Not guilty pleaded the matter before recited was found by a special Verdict and adjudged against Sir William Wade the Assignee of the Reversion for the warning given to Wilmore to repair who was but an under tenant was not good for he was not Assignee of the terme nor had but a pety interest under the grand Lease upon whom no Attorney could be made for the Rent nor any Action of Waste brought against him for there wanted the immediate privity and in this Case there is a difference to be taken between a rent and a Condition for reparations for the Condition is meerly collateral to the Land and meerly personal and therfore warning is not of necessity to be given at the House but notice of Reparations ought to be given to the person of the Lessee who had the grand interest And a Difference is to be taken between a time certain in which a thing is to be done and a time incertain for in the Case of Rent reserved at a Day certain Demand thereof must be made upon the Land onely because the Land is the Debtor for Popham said that if the Lessor should come and demand his Rent and there should meet with J. S. a stranger and should say to J. S. Pay me my Rent this is no good Demand of the Rent having mistaken the person who is chargeable with it but in this Case one general Demand of Rent without reference to any person who is not chargeable is good And he was of opinion that if a man lease Land rendring Rent for a year whensoever the Lessor should demand it in this Case the Lessor come and demand it before the end of the year his Demand upon the Land is not good except the Lessee be there also for the time being incertain when the Lessor will demand it he ought to give notice to the Lessee of it And if the Lessor come to the Lessee in person and demands the Rent yet it is not sufficient for although notice is to be given the Lessee in person yet the Land is the Debtor and therefore the Law ties the Lessee to the Land as to the place in which he shall be paid but if the Lessor stay nntill the eud of the year then the Lessee at his peril ought to attend upon the Land to pay it for the end of the year is time of payment prescribed by the Law which was granted and Judgement was given for the Plaintiff CLerk versus Sydenham Pasch 4. Jacobi An Ejectment brought by the Plaintiff of a Lease made of Land by P. and B. and Not guilty pleaded and the Evidence of the Defendants part was by reason of a Lease of the Land in Question made by the Abbot of Cleeve before the Dissolution to W. D. and Jo. his Wife and F. their Daughter for their Lives by Indenture and by the same Indenture the Abbot covenants grants and confirmes to the three Lessees that the land should remain to the Assignee of the Survivor of them for ninety years Fr. survived and took to Husband one Hill who the 20 Eliz. grant their Estate for life to J. S. and all their interest in the Remainder and all their power for all the term and this by mean Assignements came to the Defendant and whether any interest passed in Remaindor by the Lease of the Abbot was the Question and by all the five Judges it was held to be a good interest in possibility and to be reduced into a certainty in the person of the Survivor as where Land is given to three and the right Heirs of the Survivor this is a good limitation of the Inheritance presently but it is in expectancy untill the Survivor be known for then the Fee is executed in him And Popham vouched a Case in his experience 17 Eliz. in which Serjeant Baker was of Counsel and it was a Lease was made to Husband and Wife for life and for forty years to the Survivor of them the Husband and Wife joyn in Grant of this Interest and although it be certain one of them shall survive yet the Grant is void because at the time of the Grant there was not any interest but onely a possibility in either of them and although in the Case in Question the Remainder is not limited to any of the three Lessees but to the Assignee of the survivor yet the Court was of opinion that this was not a bare nomination in the survivor to appoint what person he pleased but a terme and an interest and Popham took this difference if a Lease be made to J. S. for life and after his death to the Executors and Assignes of J. S. this is an interest in J. S. to dispose of it but if it had been limited to J. S. for life and afterwards to the Executors and Assignes of J. D. here this is a bare power in J. D. and his Executors because they are not parties or privies to the first interest which was agreed and it was also agreed that whether it was an interest or a word of nomination it was all saved to the party by the Statute of
Exchequer where the Record was would not award the Venire Facias of all the three Villages named in the Record if it did not appear judicially to them that the Close did extend in all the Villages and it doth not appear for parcell if the premises doth not necessarily extend to all the Villages but may well be and so presumed in one Village onely and therefore it is matter of substance And the Judges had not power after their Commission determined to amend the Plea DAvis versus Pardy Mich. 8. Jacobi The Plaintiffe declared of a Lease made by one Cristmas the sixth of May Anno 7. of one Messuage c. In D. by reason whereof the Plaintiffe entered and was possessed untill the Defendant afterwards to wit 18. of the same month Anno sexto supradicto did eject him And not guilty being pleaded a verdict was found against the Plaintiffe And Yelverton moved in Arrest of Judgement to save Costs that the Declaration was insufficient For that Action was grounded upon two things first upon the Lease secondly upon the Ejectment and both those ought to concur one after the other And in this case the Ejectment is supposed to be one year before the Lease made for the Lease is made Anno 7. and the Ejectment supposed to be done Anno 7. 6. And therefore the Declaration naught And Yelverton vouched the case between Powre and Hawkins Anno septimo Termino Pasch Where the Plaintiffe declared upon the Lease of Edw. Ewer 27. April Anno sexto and laid the Ejectment to be 26. April Anno 6. And the Court held then that the Declaration was naught yet in the case in question the Declaration was adjudged good And the word sexto to be void for the day of the Ejectment being the 18. of the same month of May it cannot be intended but to be the same year in which the Lease is supposed to be made by the opinion of the whole Court AYlet versus Chippin Mich. 8. Jacobi The Plaintiffe declares upon a Lease made by John Aylet for one year of certain Land in C. in the County of E. by vertue whereof he entred and was possessed untill the Defendant did eject him The Defendant pleads that the Copihold Land is parcell of the Mannor of D. c. of which one Jo Aylet the Lessors Father was seised in Fee according to the Custome and that he made a surrendor thereof to the use of his Will and by his will devised the Land in question to John the lessor and H. Aylet his sons and to their Heirs Males of their Bodies and willed that they should not enter untill their severall ages of 21 years And further willed that W. B. and H. B. his Executors should have the Lands to perform his Will untill his said Sons Jo and H. came to their severall Ages of one and twenty years c. To which Plea the Plaintiffe replies and confesses the Will but shews further how that such a day and year before the Lease Jo his Lessor attained to his full Age of one and twenty years and entred and made a Lease thereof to him c. To which Plea the Defendant demurred and adjudged for the Plaintiffe For although the Estate to Jo and H. precede in words and the devise to the Executors insues in construction yet the estate to Io Executors precedes in possession And is as if he should have demised the Land untill his Sons Io and H. should attain to their severall Ages of one and twenty years And afterwards to them and their Heirs Males c. to be enjoyed in possession at ther severall Ages so that the Executors have onely a limited estate determinable in time when either Son severally should attain to his full age for his part For so it appears the Devisors intent was that either Son might enter when he attained to the age of one and twenty years And although it was objected by Justice Williams that the two Brothers are joyntenants by the Will and if one should enter when he comes to his full Age the other Brother being under age that would destroy the intent of the devise for then they should not take joyntly but the Court as to that said that the entry of him that attained to his full age doth not destroy the juncture but that they are joyntenants notwithstanding For that entry in the intent of the Devisor was only as to thâ— taking of the the profits and the possession and not as to the estate in joyntenancy and this is proved by 30 H. 6. Devise 12. where a devise was to foure in Fee and that one of them should have all during his life and this was adjudged good and it was as to the taking of the profits onely which observe by the whole Court but Williams RIce versus Haruiston Pasch 10. Jacobi The Plaintiffe declares of a Lease made by Jo. Bull c. The Defendant pleads that the Land is Copihold Land parcel of the Mannor of c. Whereof the King was seised and is seised and that the King by his Steward such a day granted the Land in question to him in Fee to hold at will according to the custome of the Mannor by vertue whereof he was admitted and entred and was seised untill the lessor entred upon him and outed him and made a Lease to the Plaintiffe and then he entred and did eject him c. The Plaintiffe replies that long before the King had any thing in the Mannor Queen Eliz. was thereof seised in Fee in right of her Crown and before the Ejectment supposed by the Defendant by her Steward at such a Court did grant the Land in question by Copy to him in Fee to hold at Will according to the custome of the Mannor who was admitted and entred and further shewed the descent of the Mannor to the King and how the Lesser entred and made a Lease to the Plaintiffe who entred and was thereof possessed untill the Defendant did eject him Upon which Plea the Defendant did demurr because he supposed that the Plaintiffe ought to traverse the grant alledged by the copy of the Defendant in his Barr. But the Court held the replication good for the Plaintiffe had confessed and avoided the Defendant by a former Copy granted by Queen Eliz under whom the King that now is claimed and so the Plaintiffe need not traverse the grant to the Defendant but such a traverse would make the Plea vitious for which see Hilliais Case 6. Rep. And 14 H. 8. Dotknis Case 2 E. 6. Dyer And Brooks title confesse and avoid for as no man can have a Lease for years without assignment no more can a man have a Copy without grant made in Court Which observe SHecomb versus Hawkins Pasc 10 Jacobi The case was in an especial verdict in Ejectment that one Mrs. Luttrel Tenant in fee of the Mannor of L. leavied a Fine to the use of her self for life and after death to
the use of her eldest Son in tayl c. With power to her self at any time to make Leases for one and twenty years and before the Lease in being expired she made another Lease to B. for one and twenty years to commence after the determination of the first Lease And as to the third part of the Land she made a Lease of that for one and twenty years after the death of one Carn who in truth never had any estate in the Land and afterwards she dyes the first Lease expires And I the Son enters and makes a Lease to the Plaintiffe And the Defendant claims under B. the Lessee And adjudged for the Plaintiffe for by such a power she could not make a Lease to comence at a day to come but it ought to be a Lease in possession and not in interest to comence in future nor in reversion after another estate ended but the Law will judge upon the generall power to make Leases without saying such ought to be Leases in Possession for if upon such power she might make Lease upon Lease she might by infinite Leases detain those in Reversion or Remainder out of the Possession for ever which is against the intent of the parties and against reason and adjudged accordingly Trin. 30 Eliz. Earle of Sussex case 6 Rep. 33. And Justice VVilliams said that when he was a Serjeant it was so adjudged in the Common Pleas in the Earle of Essex Case and Judgement by the the whole Court BRasier versus Beal Trin. 10 Jacobi Upon an especial Verdict in Ejectment the Case was that a Copy-holder in Fee of the Mannour of B. in the County of Oxford by license of the Lord lease the Land in question for sixty years to M. if he should live so long rendring Rent with a Condition of re-entry the Copy holder surrenders to the Lessor of the Plaintiff in Fee who demands the Rent upon the Land which being not paid he entred and made a Lease to the Plaintif without any Argument the Court seemed to be of opinion that the Entry of the Lessor was not congeable for Copy-hold land is not within the Statute of 32 H. 8. of Conditions nor the Lessor such an Assignee that the Statute intends for at the Common Law a Copy-holders Estate is but an Estate at will custome hath onely fixed his Estate to continue which Custome goes not to such collateral things as Entries upon Condition for such an Assignee of a Copy-holder being onely in by Custome is not privy to the Lease made by the first Copy-holder nor onely by him but may plead his Estate immediately under the Lord by the opinion of the whole Court ODingsall versus Jackson Mich. 10. Jac. In Ejectment the Declaration was that the Defendants intraverunt and that he did eject expulse and amove in the singular number and after a Verdict for the Plaintiff upon Not guilty pleaded the Defendant shewed this matter to the Court in Arrest of Judgement for the Declaration is incertain in that point because it cannot be known which of the Defendants did eject the Plaintiff for by his own shewing it appears that the Ejectment was but against one and upon that Declaration the Jury could not finde all the Defendants guilty for by the Plaintiffs supposal one onely did eject him but the Court gave Judgement for the Plaintiff that the Declaration should be amended in that point for it was but the Clerks fault and so it was and upon an Evidence in an Ejectment by the Lessees of Cresset and Smith Yelverton said that if a man comes into a Copy-hold tertiously and is admitted by the Lord and afterwards he makes a Lease for three Lives which is a Forfeiture of his Estate yet if he that hath the pure Right to the Copy-hold release to the wrong-doer that it is good for untill the Lord enter he is Tenant in fait and if the rever as Copy-holder 4 Rep. 15. But Walter seemed of another opinion and therefore quaere what benefit he shall have by the Release In an Ejectment the Plaintiff declared of an Ejectment of decem acris pisar and upon the general Issue it was found for the Plaintiff and it was moved in Arrest of Judgement because the Plaintiff had declared de decem acris pisar which is not good for Pease are not known by the Acre and therefore he should have declared de decem acris tene pisis seminaris as if a man will demand Land covered with water he must say decem acras terrae aqua co opertas but the whole Court held it good for in a common acceptance ten Acres of Pease or ten Acres sowed with Pease is all one and so is the opinion of Catesby 11 E. 4. 1. And the man the Secondary said that so it had been adjudged in the Exchequer Chamber upon a Writ of Error MEerton versus Orib Trin. 11. Jacobi Orib brought an Ejectment against Meerton in the Common Pleas 6 Jacobi of a Cole-mine in Durham in the County Palatine there the Defendant pleaded not guilty and it was found for the Plaintiff before the Justices Itinerantes there upon which Judgement the Defendant brought a Writ of Error and assigned for Errour that the Plaintif appeared by an Attourney whereas it ought to have been by Guardian being under age And upon an Issue that he was of full age was tryed at Durham and found that he was within age but the Plaintif had license to discontinue his Writ of Errour and brought a new Writ of Errour Quod coram nobis residat And declared that M. was inhabiting at Westminster in the County of Middlesex and being within age appeared by an Attorney the Defendant in the Writ of Errour confessed that he was inhabiting at Westminster but that he was at full age at the time And upon the tryall in Middlesex it was found that M. was under age And it was alleadged in Arrest of Judgement and it depended a long time that it was a mistryall and the doubt and question was onely whether the tryall at Westminster in this Case was good And Davenport and Yelverton were of opinion that it was not good for the Errour assigned was done at Durham and because they there have the best notice of it it ought to have been there tryed As if Errour be in a Record it shall be tryed where the Record is 19 H. 6. 79. Secondly This is a reall Action in which the Land shall be recovered and therefore though the Issue be upon a collaterall matter yet it shall be tryed where the Land lyes because it concernes the realty but if it had concerned the person onely it had been otherwise and this difference is taken by Montham 19 H. 6. 10. And therefore if a Feoffment be made upon payment c. If upon an Assise brought the Defendant plead payment in another place yet it shall be tryed where the Land lyes And so likewise if the Issue should be which
is the eldest Son although they alleadge their births in severall Counties yet it shall be tryed where the Land lyes and so in that Case a Release of all his right was pleaded against him and he pleaded that he was within age and borne in another County yet it shall be tryed where the Land lyes and so adjudged 7 H. 4. 8. and 17 E. 3. 36. b. 19 H. 6. 15. Nay though the Espousals be alleadged to be in another County yet it shall be tryed where the Land lyes and adjudged 7 H. 4. 8. And Davenport inferrs from 36 H. 6. 9. A grand Cape against one he comes and pleads that he was within age at the time of the first Cape which shall be tryed where the Land lyes And another exception was taken because the Venire facias was not well awarded for it was directed to the Sheriff of Middlesex that he should cause to come twelve Coram nobis apud westmonasterium which is not good for that Court follows the King and may be removed to any place and therefore it ought to have been Vbicunque fuerimus in Anglia but all the Judges Fleming being absent after mature deliberation held the tryall at Middlesex good for they took this difference in their answer to the rule layd downe that what concernes the realty it shall be tryed where the Land lyes for when nonage or the birth are alleadged to intitle one to the Land demanded as if in an Assise the Tenant pleads a discontinuance the Demandant sayes he was within age at the time or to debarr another of Land that he was borne before marriage in these Cases because the Inheritance of the Land depends upon it although they be alleadged in another place yet they shall be tryed where the Land lyes 19 H. 6. And so it is 39 H. 6. 49. b. to be intended but if nonage or birth be pleaded as matter dehors and not to the disabling of the title to the Land but to another purpose as here it is to the person because he could not appeare by Attorney in this Case it shall be tryed where the Infancy is alleadged As if in a Formedon in the Remainder the Tenant pleads nonage in the Plaintiff and prayes that the Plea may stay untill his full age if Issue be taken upon it it shall be tryed in the place where it is alleadged And as to the Exception to the Venire facias the Roll is right which warrants the Writ and therefore they held it was but the Writers fault and should be amended and Doddridge and Cook held the Triall good if Infancy be alledged the Triall shall be by inspection during his Nonage as it is 17 E. 3. Account 121. and 11 H. 4. 115. 25. Ass 2. and 48 E. 3. 11. and the 11. Rep. f. 30. but if his Age upon inspection remains doubtfull then the Judges may swear the party and examine Witnesses And 25 E. 3. 44. and 50 E. 3. 5. but if the Infant come to full Age it shall be tried by the Countrey 33 H. 8. and they took this Difference in what place it should be tried for if the Action be reall it shall be tried where the Land lies as it is 21 E. 3. 28. 28 E. 3. 17. 44 Assis 10. 46 E. 3. 7. 13 H. 4. 3. and if both places be in one County then the venire facias shall be of both 22 E. 3. 11. H. 4. 75. but if nonage be alledged in a personall Action the Triall shall be where the writ is brought 43. H. 6. 40. in Debt the Defendant pleaded infancy and that he was born in such a place yet the Venire facias was awarded of that place where the Action was brought and 43 H. 6. 40. Prisot was of the same opinion and the Law is the same when it concerns the person as in misnomer or that he is not the same person and so in the Case in question although the Action be brought in one place and the nonage pleaded in another County yet it shall be tried where the Action was brought and therefore the Action being brought in Midd. the triall of Midd. is good for a writ of Error is of the nature of an Originall which is personall and they held the Venire facias should be amended being but a matter of Form and that it was no mistriall it being awarded at a right place and likewise the will is right which warrants it and therefore it is but a misprision and no mistriall and the Venire facias shall be amended according to the will and Judgement was given for the Plaintiff in the writ of Error Formedon BRigham versus Godwin The Formedon did abate by the death of one of the Demandants and upon a new writ brought by Journes accounts the Tenant was Essoined and it was moved by the demanded that the Essoin should be quashed because the Tenant was Essoined upon the first writ but the Essoin was allowed by the Court but it was held by the Court that if the Tenant had the view upon the first Writ he should never have the view again at the Common Law we might have had a new Essoin upon view as often as he brings a new writ and Husband held that if by the Common Law it is to be granted the Statute doth not abridge it two views do not ly upon one writ at the common Law and if this shall be accounted but one Writ the view lieth not but in this case the Tenant did relinquish the view because he had day to plead NEvill versus Nevil Mich. 15 Jac. rotulo 77. Formedon in le Discender the writ was generall and the Count was upon a Feofment made after the Statute of uses and a speciall verdict whether the Deed warrant the Count the verdict is whether upon the whole matter the said A. N. gave the moity of the third part of the Mannor c. for default of Issue of the Bodies of either the said G. and D. to the use of either of them surviving and of the Heires males of his Body to be begotten or no the Jury are wholly ignorant the writ was to the use of G. and D. and of the Heirs males of the Bodies of the said G. and D. lawfully to be begotten and for default of such issue male of the Body of either of them then to the use of either of them having issue male of his Body lawfully begotten and for default of such issue male of both the Bodies of the said G. D. or either of them lawfully to be begotten then to the use c. By Deed an implication cannot be intended if there be not apt words otherwise it is in a Will for this is but a gift to a man and his Issue for this gift is but to both of them for life and severall inheritances Bishop al. versus Cossen Trin. 16 Jac. rotulo 62. In Formedon the Tenant pleaded a warranty and pretends
Winch held that the Plaintiffe should not be barred for the Misnomer and for the second he held that his house was within the Statute of Chaunterys and so the interest in the King H. 6. And so the Lease made by the Master of the Hospitall void Dyer 246. 287. And Warburton held the Plaintiffe should be barred upon both points SWynerton versus Mills Hill 14 Jacobi rotulo 2049. In a Replevin the Defendant a vows for a rent charge reserved by a Copiholder who is seised in Fee and made a Lease by the license of the Lord reserving Rent at foure Feasts or within one and twenty days being lawfully demanded and afterwards the Copiholder surrendred one moity in Fee to a stranger and afterwards surrendred the reversion of the other moity to another to which the Termer atturned and so avowed for Rent The Plaintiffe pleaded in Barâ— that he was seised of a Close adjoyning to the place in which c. and put therein his Cattell and that they escaped by fault of inclosure and issue taken upon that And after a Verdict by default those exceptions were taken to the Avowry in Arrest of Judgement First because it appeared by the Advowry that the Copiholder had surrendred a Reversion which could not be because a Copiholder is a Tenant at will and so could not have a reversion for he cannot make a Lease for yeers without the license of the Lord but this exception was over-ruled by the Couâ—t Secondly because there was no Atturnment alledged in the first surrender And it was held no exception because the Rent for which he avowed was reserved by the Copiholder by the second surrender to which the Termer had atturned And also the Court said that an Atturnment is not necessary for a Copiholder because there is no time when the Terme should atturn For before the surrender he cannot atturn and after the surrender and admittance it is too late And the Copihold estate is like an estate raised by uses or devise in which an Atturnment is not necessary As also in an estate raised by Fine and the like an Atturnment is not necessarie for if the Termer will not atturn he is compellable by Law as by a Quid juris clamat but a Copiholder hath no means to make the Termer atturn if he refuse And thirdly in the conclusion of the Advowry he doth not say that the Rent was behind such a day and one and twenty dayes after at least and this exception was disallowed because the distresse is a sufficient demand of the Rent and it appears that the day of the taking of the distresse was one and twentie dayes after the Feast at which the Rent was due and Judgment was given for the Advowant and note that a Covenant to distrain is idle for a man may distrain of common right HOwell versus Sambay Mich. 13 Jacobi rotulo 2009. In Replevin the Defendant a vows for a Rent charge and a Nomine pene granted by Tenant in tail generall and one Fine levied afterwards and the use expressed the Plaintiffe replies and saies that the Grantor had only an interest for life and so makes inducement and traverses the use of the Fine The Defendant demurrs And held by the Court that the Grantee was not seised in tail nor to the use of the Fine And it was said that in this case that it was necessary for the Advowant to plead the Fine with the estate tail for if the Tenant in tail grant a Rent charge and dye no Fine being levied and the estate tail discends the issue in tail is not chargable with the Rent And note the Advowry was as well for the Rent as for the Nomine pene and no speciall demand was alledged in pleading the Rent and it was adjudged by the Court a naughty advowry as to the Nomine pene but good for the Rent as it hath been adjudged in one Mildmaies Case COtterell versus Harrington Pasch 6. Jacobi rotulo 545. In a Replevin the Defendant avows for an Annuity for 20 d. granted for yeers payable upon demand and alledges a demand the Plaintiffe demands either of the Deed and by the Deed it appeared that for a hundred and ten pound one Rent of twenty pound was granted for eight yeers and another for 20 l. for two yeers if E. R. and T. should so long live the Plaintiffe pleads the Statute of Usury and sets forth the Statute and a speciall usurious Contract If it had been layed to be upon a loan of Money then it was Usury but if it be a bargain an Annuity it is no usury But this was alledged to be upon a lending VVOod versus Moreton Hill 6 Jacobi rotulo 1802. In Replevin the Defendant advows to have Common Appendant out to his house and Land the Plaintiffe saith that he had Common Appendant to his House and Land And the Defendant to avoid the Common saith that the Commoner sold to the Plaintiffe five Acres of the Land to which the Common is appendant pretending that he should not have Common for that Land being but parcell of the Land to which the Common was appendant Common Appurtenant cannot be to a House alone purchasing of part of Common Appendant doth not extinguish the Common otherwise it is of Common Appurtenant And it was pretended to be Common Appurtenant because it is to a House and Land whether by severance his Common is gone and held to be common Appendant and Judgment given for the Plaintiffe MOrse versus Well Replevin for Common of Pasture the casewas that the Father was seised of two yard Land with Appurtenances and had Common of Pasture for four rother Beasts three Horses and sixty Sheep and he demised part of the said two yard Lands in being And whether the Common should be apportioned and if it should be apportioned whether the Prescription failed because the issue was taken that he and all those c. had Common in the said two yard Land A Release of Common in one Acre is a Release of all If I have Common Appurtenant and purchase part the Common is gone but otherwise it is of Common Appendant And note this Common was Common Appendant and the purchasing of Common Appendant doth not extinguish the Common and Judgment was given for the Commoner by the whole Court HVghes versus Crowther Trin. 6 Jacobi rotulo 2220. In a Replevin a Lease for years made to Charles H. and the said A. T. to have and to hold from c. for sixty years if they live so long Charles dyed in this case Judgment was given that the Lease was ended by the death of Charles but otherwise it had been if it had been for life BIcknall versus Tucker Trin. 9 Jacobi rotulo 3648. in a Replevin the case was whether a Fine with five years will bind the Copy-holder in remainder there was a Copy-hold granted to three for lives to have and to hold successively the
an inquiry of damages between the Plaintiffs and Dawby according to the Award upon the Roll which is the warrant for the Venire facias and it was shewed that the Jury knew nothing of the matter for which they were warned for they ought to have onely given their Verdict against Scullard and not against Dawby and it was likened where two matters are in Issue and they give a Verdict for one and nothing for the other it is naught for all And this was the opinion of the whole Court except Justice Williams who relyed upon 9. Eliz. Dyer Sir Anthony Cook and Wottons Case in partition against two one confessed the Action and the other pleaded to Issue and the Venire facias was to try the Issue between the Plaintifs and the two Defendants and it was amended by the opinion of the Court But marke the difference for no damages are to be recovered in partition but it is otherwise in Trespass and therefore in Cooks Case it was found by the Court that it was as if a meer stranger to the Record had been named in the Venire facias WInckworth against Man Mich. 5. Jacobi The Plaintiff declares for a Trespass in one Acre of Land in D. and abuts that East West North and South and upon not guilty pleaded the Jury found the Defendant guilty in halfe an Acre within written and moved in Arrest of Judgment because upon the matter no Trespass had been found for there is no such moity bounded as the Plaintiff had declared for the whole Acre is onely bounded by the Plaintiff containing his Trespass within those bounds and the Defendant ought to be found a Trespassor within those bounds for otherwise it is not good and it is impossible for the moity of one Acre to be within those bounds But the whole Court except Fenner were of opinion that the Plaintiff should have his Judgement for if the Plaintiff layeth his Action for a Trespass committed in one Acre and the Jury find that onely to be in one foot of it it is good and here they have found the Trespass in the moity of the Acre bounded which is sufficient in this Action where damages onely are to be recovered but if it had been in Ejectment the Verdict had been naught for it is incertaine in what part he should have his Writ of Habere facias possessionem BVckwood against Beale Mich. 5. Jacobi In an action of Trespass it was sayd by the Court That if a Sheriff execute a Capias and there is no Originall to warrant it he is excused it for he is not to examine whether the Originall be sued out or no and for this Trewyrmards Case 38 H. 8. And so if a Bailiff execute a Process made to him by the Steward for damages recovered in the Mannor in a thing in which they had no authority to hold Plea The Bailiff is excused and shall not be punished because he is not to examine the jurisdiction of the Court 7 H. 4. 27. 22 Ed. 3. 22. Ass But if Process come to the Sheriff to arrest J. S. and he arrest J. N. or to make execution of the Goods of J. S. and he make execution of the Goods of I. N. he is a Trespassor for in this Case he must take notice at his perill of the Person and the Goods for when he arrests I. N. or does execution upon his Goods he doth it without warrant And so if I. S. sue a Replevin to the Sheriff to replevin his Cattell and I. S. comes to the Sheriff and shews him the Cattell of I. N. and saith they are his Cattell and he makes replevin of the Cattell he is a Trespassor to I. N. and the Sherif may have an Action of Trespass against I. S. for his false information for the Sherif must at his owne perill take notice whose Cattell they be 3 H. 7. 14 H. 4. but if there be any fraud in the matter he may averr that MOnrey versus Johnson An Action of Trespass brought for entring into a mans House The Defendant pleads that he was a Constable c. And it was held by the whole Court that a Constable may justifie his entry into the House of any man for Felony or Treason STrickland against Thorpe Pasch 6. Jacobi Thorpe brought an Action of Trespass against Strickland wherefore he broke his close the 20. of June 3 Jacobi with a continuance thereof untill the sixth of November after and upon a not guilty pleaded it was found for the Plaintif and Judgment entred but it was entred nothing of the Fine because it is pardoned And upon a Writ of Errour brought he assigned for Errour that the Judgment should have been entred with a Capiatur because the King and Parliament pardoned all offences before the 25. of September and therefore the Trespass being alleadged to have been continued untill the sixth of November following onely part of the Trespass was pardoned and therefore as to that it should have been a Capiatur but the whole Court were of opinion that the Judgment was well entred for the first Trespass which was by force and Armes being pardoned all that depends on that was pardoned and the continuance of the Trespass being onely as to the entring and consuming the Grasse is for increase of damages onely but not for the Kings Fine for the first entry being only with force and Arms makes the Trespass REpps against Bonham Trin. 6. Jacobi The Case in Trespass was that a Feofment was made of three Acres to R. Repps and Mary his Wife for their lives and afterwards to the first second and third Son of the body of the sayd Mary and after to the heirs of the body of the said Mary by the said Richard to be begotten and they had no Son but one Daughter Richard levies a Fine of the Land and Mary dyes the Plaintif enters and the Defendant pleads Richards Fine and adjudged that the Plaintif is not barred by the Fine for Richard had onely an Estate for life and the Estate tayle was in the woman only by the opinion of the five Justices for they said that the Husband is only named to declare what heir of the body of the woman should inherit and not any Heir but such an Heir as Richard her present Husband should beget And if the limitation had been to the Heirs of the body of the woman by her Husband and by I. S. to be begotten the Inheritance had been only in the woman but by the last words for if shee had no Heirs by her Husband and afterwards marries I. S. the Heirs that shee should have by I. S. should inherit And they were all of opinion that the Inheritance was only in the woman because the word Heir which makes the estate of inheritance is annexed only to the body of the woman but if it had been to the Heirs which the Husband should have got of the body of the woman there the
time out of mind to repair the Fence and Hedges betweene Catley Close Fursey Close which Fursey Close doth next adjoyn to the Close called M. where the Cattel were chased and shews that the Plaintiff put his Cattell in Catley Close to feed the Grass there which by default of inclosure escaped into Fursey Close as above but he said that between Catley Close and Fursey Close there is a little Brook which Brook at the side of Catley close had a banck next adjoyning to it which banck the Lessor of the Plaintiff and those whose Estate they have c. have used time out of mind c. to repair And that the Brook at the side of Fursey Close had another Brook next adjoyning which the Defendant used to repair and shews because the Plaintiff had not repaired the banck on the side of Catley Close the Cattell did escape into Fursey Close and stayed in the Close called M. By reason whereof the Defendant chased them as it was lawfull for him to doe whereupon the Plaintiff demurres and adjudged for the Plaintif for the Defendant had pleaded a good Barre and the Plaintif had replyed a good replication and had removed the fault from himselfe and laid it upon the Defendant by his negligent inclosure between Catley and Fursey and the rejoynder doth not confess and avoid the replication but perplexes the matter by adding one point of prescription on the Plaintiffs part that he ought to repair one banck between Catley and Fursey upon which an issue could not be taken for then two prescriptions should be an issue together which cannot be no more then two affirmatives as the 5. H. 7. 12. And also the matter contained in the Records doth not answer the matter contained in the Replication but by way of Argument only And whether that be true is no matter in evidence against the Plaintiff who is bound to prove his Replication true For the Plaintiff saith that Catley and Fursey doe lye together that is without any space between them And the Defendant in his Rejoynder saith there is a banck between Catley and Fursey which if it be so they do not lye together but the Defendant ought to have traversed the prescription alledged by the Plaintiff which had made an end of all the matter which observe was by the opinion of the whole Court SVtcliffe against Constable Trin. 10. Jac. Ch. Constable 32. Eliz. was seised in fee of the Mannor of East-hatfield in the County of Yorke and by his Indenture infeoffes H. Remingham paying for certain Lands parcell of the Mannor 60 l. at two Feasts with a clause of Distresse if it be behind by the space of 14. days Ch. 43. Elizab. by Indenture bargains and sells the 60 l. Rent to the Plaintiff which was inrolled by reason whereof he was seised of the Rent for the life of Ch. and being so seised loses that part of the Identure sealed by Remingham which the said day to wit the 24. Novemb 44. Eliz. came to the hands of the Defendant who by Force and Armes teared the seale of the Indenture against the Peace c. to his damage of 400 l. The Defendant pleads that Ch. hath not granted the Mannor of E. to Remingham paying the rent c. in manner and form and the Plaintiff demurres upon this Plea And it was argued that the Bar was good which is a direct traverse to the title of the Plaintiff to destroy the ground of the Plaintiffs action for if no rent were granted then the Indenture concerning which the Plaintif complains did not belong to the Plaintiff for it passes not to the Plaintiff but as an incident to the second Grant of necessity to make good his title As the Lord Buckhursts Case Co. 1. 7. E. 4. 30. in assize of rent the Plaintiff made his title by deed of a rent charge it was a good plea to say that nothing passed by the grant because the issue is taken upon the speciall matter and not the generall but in an Assize brought of an Office it is no plea to say there is no such Office for that amounts to no more but that he hath not disseised him 45. E. 3. In trespass for taking away of writing it is no plea to say that he never had such a writing but must plead not guilty So in an Action of Trespass for Goods it is no Plea to say that the property of them was to an Estranger and not to the Plaintif because by that plea hee denies not but that the Plaintif was in posaession which is sufficient to maintain the Action 20. H. 8. 28. which books prove that the Plea in Bar is not good for the Defendant destroys the Plaintifs Action but by way of Argument And the rent by such Action is not demanded but damages for tearing the Indenture and so the Title of Rent is not in question and exceptions were taken to the Declaration First the Action was brought for tearing the Counter-part by which the Rent was not created And the Indenture is not expresly granted to the Plaintif but the rent of 60 l. only is bargained and sold and by that the counter-part that pertains to Remingham doth not pass to the Plaintif as an incident for it is not the Originall Deed by which at first the rent was reserved which was granted by all but the Cheife Justice for he said that the counter-part waited upon the interest and was good evidence for that Secondly the Plaintif had not averred that Ch. for whose life the Rent was granted was alive at the time of tearing the Indenture and if C. was dead the Indenture pertained to the Defendant of right as Heir of Ch. for so much appeared by the Plaintifs own shewing which was granted And thirdly the Plaintiff shewed not that ever hee was posaessed of the Deed but by way of Argument to wit that he casually lost it which is not sufficient for none shall have trespass but he who is in actuall posaession which was also granted by the Court. Fourhly the counter-part whereof the Plaintif complains by the Plaintifs own shewing contained as well a warranty as the rent reserved And therefore without a special gift made of that Deed by Ch. to the Plaintiff that Deed doth not pass by Law to the Plaintiff as it is adjudged in Lord Buckhursts Case Fifthly if Ch. the Father be dead then the writing hath lost his force as to the rent for by his death the rent is determined and therefore of necessity the Plaintiff ought to averre the life of Ch. For no Action lies for a Deed that is determined and for these reasons the Plaintiff did discontinue his Action An Action of Trespass was brought for entring into a mans House and continuing there divers dayes c. And after a Tryall and verdict for the Plaintiff Yelverton moved in Arrest of Judgment and shewed for cause that the Plaintiff had declared with a continuando for breaking
Disseisin and Doddridge sayd It would be mischeivous if it should Hill 6. Iac. In the Common Pleas that if in the Common Barre in Trespass the place in the Common Barre is alledged to be Blackacre the Plaintiff may plead that it is his Free-hold and then it was held by the whole Court that an abuttall of one side is sufficient without alledging it of every side SWaine against Becket An Action of Trespass brought for cutting down of Trees And upon a speciall verdict the question was that whereas there is a Mannor wherein are Copi-holders for life which have used to lopp Trees growing upon the Copy-holds for their necessary fire and repairing of their customary Tenements the Lord of the Mannor maketh a Lease of the Mannor for yeares excepting the Trees the Lessee of the Mannor granteth a copy for life the Copy-holder loppeth the Trees growing on his Copy-hold whether by law he might do it or no was the doubt of the Jury And it was held by all the Court that the Copy-holder might lopp the Trees because he is in by the custome which is above the Lords Estate after he is admitted and that the copy-hold doth not depend upon the Lords interest And that the Trees excepted and the Soil remained parcell of the Mannor because the Lease was but for years but if the Lease had been for life it had been otherwise because it had been severed from the Mannor And whereas it was objected that the Tenant should not be in a better condition then his Author it was answered that a Lord of a Mannor at will may grant a copy for life or in fee and it is good If the Lord cut down all the Trees so that the Copy-holder can have no lopping he may have his Action upon the Case against the Lord as it was adjudged in Gosnolds case If the Lord sell away his waste and the Copy-holder dye and the Lord grant a new copy he shall have his Common If the Lord sell away the Trees so that the Copy-holder cannot have Estovers because the Bargainee felleth down the Trees the Copy-holder shall have his Action against the Bargainee Common and lopping are incident to the copy-hold Judgment for the Defendant HArris against Ap-John An Action of Trespasse brought the Defendant pleads not guilty and verdict found for the Plaintif And in Arrest of Judgment it was alledged that the venire facias was de placito debiti and so also was the habeas corpus and it should have been de placito transgressionis And it was amended by the whole Court MYnwinnock against Bligh Trin. 16. Jacob. rotulo 1697. An action of Trespasse brought for breaking the Plaintiffs Close done Septemb. in the 13. year of King James The Defendant pleads as to part of the Trespasse in award and that the Defendant submits himself to the award the 15. yeare and that the Arbitrators in the 13. yeare which was before the submission made the Award and traverses that he was guilty of the Trespasse after the award made And the Plaintiff replies that the Arbitrators the said day in the 13. year made not any award c. And after Tryall exception was taken that the issue was ill joyned being of a thing that was void yet notwithstanding Judgment was given for the Plaintiff and they resembled to a payment upon a single Bond and conditions performed at a Feast not contained in an Obligation Trin. 15. Jac. rotulo 3044. An Action of Trespass brought wherfore by force and armes his Goods and Chattels to wit a thousand posts and forty railes took and caryed away and damages given intire and after a verdict exception taken because Rales was pretended to be no Latine word nor to have any exception but Judgment was given for the Plaintiff DVncomb against Randoll Hil. 9. Jac. rotulo 2267. Three issues in Trespasse One issue was upon a prescription to wit that they had accustomed to have for himselfe his Farme and Tenants of the same Mannor common of pasture in the said c. for all his Sheep which are levant and couchant in and upon the Demesne Lands of W. which lye and are in A. aforesaid every yeare And exception was taken for the uncertainty because it did not appear that those were demesne Lands which lye in A. for it was ill pleaded and ought to be averred but notwithstanding it was held good after a tryal and Judgment was given for the Plaintiff and in this case an exception was taken to the venire facias because it was of A. and of the Mannor of C. and because it was made in this manner to wit de visu de A. and de visu manerij de C. but it was disallowed because against the form used in the Common Pleas. DOwnes against Skrymsher Trin. 9. Iac. rotulo 334. An Action of Assault and Battery brought and there was a Demurrer upon the Evidence And the case was that the Defendant the day specified in the Declaration said that the Plaintiff assaulted the Defenant and in defence of himselfe justifies the beating the Plaintiff replies that he did it of his own wrong without any such cause and in the Evidence the Defendant maintained that the Plaintiff beate him the day mentioned in the Declaration and in the same place And the Plaintiff perceiving that gave in evidence that the Battery was made another day and place to wit c. which was the cause of the speciall verdict for if there be two Batteries made between the Plaintiff and Defendant at divers times the Plaintiff is bound to prove the Battery made the same day in his Declaration and shall not be admitted to give another day in evidence by the opinion of the whole Court HEydon against Mich. 8. Jac. rotulo 839. An Action of Battery brought against three two of them pleaded not guilty and Judgment by non sum informat against the third and the two were found guilty for all And the Jury gave damages severally against one a 100 l. and against the other a 100 s. and what Judgement should be given was the question and at first the Court was of opinion that the Plaintiff should not have Judgment at all for where the Defendants are found guilty of all the Trespass in this case the damages shall be intire but if one shall be found guilty of part or at another time in this case the damages shall be severall otherwise not And they thought a Venire de novo ought to issue out because the Jury had mis-behaved themselves in severing the damages but afterwards it was resolved that the damages that were given by the first Jury to wit one 100 l. should be recovered against all the Defendants in that Writ named and that in Trespass the first Jury taxes the damages for the whole Trespass and that shall bind all the Defendants and therefore execution was given against all the Defendants for the hundred pounds Trin. 9. Jam. rotulo 1835.
because the first taker hath devested the property out of the Owner The Defendant in this justified the taking of the Mare as a stray and did not alledg that he came as an estray and the Plea was held insufficient and the Court held they could not tye them together And the Defendant said that the Hayward took the Mare and delivered her to the Defendant this was but not guilty and Judgment for the Plaintiff LVttrell against Wood and other Defendants Pasch 40. Eliz. An Action of Trespasse brought wherefore by Force and Armes he broke the Plaintiffs Close and cut down his Trees The Defendant in Barre to the new assignment alledges that he is a Copy-holder for life of the Mannor of Mynehead in the County of Somerset and that in that Mannor there was a Custome that every Copy-holder for life had used at his pleasure to cut downe all the Elmes growing upon his customary Lands and to convert them to his own use when and as often as hee would and so justifies and a Demurrer upon the Barre And the question was whether the Custome was good and reasonable and the later opinion was that it was a good and reasonable Custome but now it is otherwise held Actions of Waste IN Waste the Writ shall be brought where the Waste was committed And the Processe in this Action is Summons Attachment and Distresse peremptory by the Statute of Westminst 2. But at the Common Law the Distresse was infinite And if the Defendant doth not appear upon the Distresse although a Nihil be returned yet the Plaintiff shall have Judgment and a Writ to inquire of damages of the Waste and an Essoine lies as in a Quare Impedit and the Processe shall be executed as in a Quare Impedit and returned from 15 dayes to 15 dayes and the Plaintiff in this Action shall not recover costs but the value of the Waste found by the Jury shall be trebled by the Court for costs shall not be recovered in such Actions as are given by the Statute as in this Action a Decies tantum and Quare impedit And so Judgment is to recover the place wasted and severance lies in this Action Mich. 9. H. 4. rot 104. And note in the tryal of the issue in Waste if the Defendant by his Plea doth not confess the Waste six of the Jury which are impannelled to try the Waste must have the view of the place wasted to the intent that the Plaintiff may be put in possession of the place wasted by the view of the Jury And if the Defendant confesse the Waste the Jury ought only to inquire of the value of the Waste but not who committed the Waste But upon a default upon the grand Distress the Sheriff in his proper person shall repair to the place wasted and there inquire what waste and spoile is done And if he doth not return that he was there in his proper person it is naught But upon a Judgment by non sum informat nil dicit or in a Plea by which the Defendant confesses the waste the Sheriff shall inquire only of the damages And he is not bound to return upon that Writ that he in proper person went to the place wasted And when the Judgment is by default the challenge lies against the Sheriff and if it be denyed it is Errour And if the Plaintiff do not take jungment upon the first distress being returned executed but takes another distress it is Error And no receit lies by the VVife upon the default upon the Distress at the return of the VVrit to inquire of the wast Trin. 6. H. 6. rotulo 133. For if the VVoman at the Assize before verdict doth not pray to be received she shall never be received afterwards in the Court at the return of the Nisi prius And note that the Jury may give severall values and one joynt value of the place wasted but severall values is the better way If a Lessee for yeares makes a Lease of one moity to one man and of the other moity to another man and one of them commit Waste the Action shall be brought against the two for the Waste of one is the Waste of the other if a Lease be made by three to one for life and afterwards two release to the third and the Lessee commits wast he alone shall have a Writ of Waste supposing that hee demised onely If Waste be committed in two Villiages and the Sheriff hath executed his Office naughtily in one Villiage and well in another all shall be inquired of De novo because the whole in Inquisition was but one Inquest at one time but if the Plaintiff assigne the Waste in the Houses and Woods and it doth not appeare by the Count that the Houses were demised and upon a Nihil dicit a Writ to inquire of the damages issues out and the Jury find c. the Plaintiff shall have his of the Houses BEdell against Bedell Trin. 8. Jacobi rotulo 3052. An Action of Waste brought the Case was There is a devise to two for one and twenty yeares the Father and Son and made the Son Executor and he refuses to prove the Will and take the terme and so no Waste committed And if Lessee for life and his Lessor joyne in a Lease for yeares by Indenture and the Lessee for life dye and waste is committed the surviving Lessor shall have the Action of Waste and shall count that he did demise it alone If a Lease be made to Husband and Wife for life and for twenty yeares after their deaths and the Wife dye and Waste is committed the Wife shall not be named in the Wriâ— nor the terme after her death If Husband and Wife during the Coverture make a Lease and Waste is committed they both shall joyne in the Action of Waste And if a Lease be made but for one yeare or for halfe a yeare onely yet the Writ shall be for a terme of years but the Count shall be speciall if a Lessee for yeares or life grants Rent out of the Land he had for yeares and afterwards commits Waste if the Lessor recover the place wasted the Land shall be charged If a Lessee for a hundred yeares grants part of his terme to another and be commits Waste the Action shall be brought against the first Lessee If Tenant for life commits waste and afterwards grants his estate to another waste shall be brought against him in the Tenet and after Judgement a Scire facias shall issue to the Grantee to shew cause wherefore the Plaintiff shall not have Execution of the place wasted and the like if Lessee for yeares commit waste and grants over his Estate Waste shall be brought against him in the Tenet And if a Lease be made for life upon condition that if the Lessee shall do such an Act his Estate shall cease and he doth commit such an Act the Writ shall be brought against the Lessee in the Tenet
of the King for the Plaintiff and day given for the argument of that till the next tearm Hillary 8. Jacobi 1610. in the Common Bench. Tresham against Lambe LEwes Tresham was Plaintiff in waste against John Lambe the Plaintiff supposed the Defendant had made waste in sowing and plowing ancient meadow the which he had let to the Defendant for years in Rushton in the county of Northampton and sowed it with Woade and prayed Estrepement upon the Statute of Glocester chapter 13. And upon examination it appears that the Lands let was pasture and Meadow the Pasture was Ridge and furrow but had been mowed and used for meadow for diverse years and that the Defendant plowed and sowed that with Woade but this which had been ancient meadow he used that as Meadow and did not convert that to Arable Land but the Judges would not grant any Estrepement to the Pasture for that it was Ridge and furrow and it was no ancient meadow although that had been mowed time out of minde c. But to the ancient Meadow they granted a writ of Esterpement but Foster seemed to be of another opinion for that that it was to sow Woade for that that it is against common Right and the fume and smell of that is offensive and infectious but if it had been to sow Corne he agreed as above and for the executing the Writ of Estrepement they all agreed that the Sheriff ought to take if need be the power of the County against those which made the waste hanging the Action and may commit them if they will not obey him for the words of the Statute are that you shall cause to keep which shall be intended in safety But if Lessee for years trench or draine that is no Wast as it was now of late times adjudged where if the Lessee takes any of the reasonable Bootes that the Law allowes that it shall be no Waste nor Estrepement shall be granted see Fitzherberts Natura Brevium 59. m. If a man devise Land to his Executors for years this is assetts but if he devise that his Executors shall sell his Lands or devise his Lands to his Executors to be sold this shall be no assets untill the Lands are sold and the money for which the land shall be sold shall be assetts A Record of Nisi prius in an Action of Debt upon an obligation with condition to pay such a sum of Money at such a Feast next after the date of the obligation and the day of the date of the obligation was omitted in the Record of the Nisi prius so that it doth not appear which shall be the next Feast at which the mony ought to be paid after the date and by all the Justices that was no perfect Issue and for that the Justices of Nisi prius have no power to proceed upon it and for that it shall not be amended otherwise if it had been a good Issue though that another thing had been mistaken see Dyer 9. Eliz. 260. 24. And see before the same Tearm here The King pardoned a man attaint for giving a false verdict yet he shall not be at another time impannelled upon any Jury for though that the punishment were pardoned yet the Guilt remaines Hillary 8. Jacobi 1610. In the Common Bench. James versus Reade THE case was the King was seised of a Mannor where there were diverse Copy-holders for life and was also seised of eight Acres of Land in another Mannor in which the Copy-holders have used time out of minde c. To have common and after the King grants the Mannor to one and the eight Acres to another and a Copy-holder puts in his beasts into the eight Acres of Land and in trespasse brought against him by the Patentee of the eight Acres he prescribes that the Lord of a Mannor and all those whose estate he hath in the Mannor have used time out of minde c. For themselves and their Copy-holders to have Common in the said eight Acres of Land and further pleaded that he was Copy-holder for his life by grant after the said unity of possession in the King and so demanded judgment if action against which the said unity of possession was pleaded upon which the Defendant demurrs and all the Justices seemed that though that prescription was pleaded that the common was extinct but it seems also to them that by speciall pleading he might have beene helped and save his common for this was common Appendant see 4. Coke Tirringhams Case 37. 6. Hillary 8. Jacobi 1610. In the Common Bench. Cartwright against Gilbert IN Debt upon an obligation with condition to be and perform an Arbitrement to be made the Arbitrators award that the Defendant should make Submission and should acknowledge himself sorry for all transgressions and words at or before the next Court to be held in the Mannor of P. And for the not performance of that Award the Plaintiff brought this Suit and the Defendant in Barr of this pleads that at the said next Court he went to the Court to make his submission and to acknowledge himself greived according to the Award and was there ready to have performed it but further he saith that the Plaintiff was not there to accept it upon which the Plaintiff demurred and it seemes to Coke and Foster that the Defendant hath done as much as was to be done of his part and for that that the Plaintiff was not there ready to accept the Defendant was discharged for this submission is personall and to the intent to make them freinds and for that both the parties ought to be present But Walmesley and Warburton seemed that it might have been very well made in the absence of the Plaintiff as well as a man may submit himself to an Arbitrement of a man which is absent for this is only to be made to the intent to shew himself sorrowfull for the Trespasses and words which he hath made and spoken and it was not argued but adjourned till the next tearme and the Justices moved the parties to make an end of that for that it was a trifling Suit Hillary 8. Jacobi 1610 In the Common Bench. Sir Edward Ashfeild SIR Edward Ashfeild was bound in an obligation by the name of Sir Edmund and subscribed that with the name of Edward and in Debt brought upon that he pleads it is not his Deed and it seemes to all the Justices that he might well plead that for it appears to them that he is not named Edmund and the originall against him was Command Edward otherwise Edmund and this was not good for a man cannot have two Christian names and if judgment were given against him by the name of Edmund and the Sheriff arrest him by Capias that false imprisonment lies against him But if he have a name given to him when he was christened and another when he was confirmed he shall be called and known by the name given unto him at the time
of his confirmation and not by the first see 11. R. 2. Grants 9. Ed. 3. 4. 12. R. 2 Feoffments 58. See Perkins fol. 8. b 9. a. Grants 10. Eliz. Dyer 279. 4. Hillary 8. Jacobi 1610 In the Common Bench. Styles against Baxter STyles brought an Action upon the case against Baxter for calling him perjured man the Defendant justified that he was perjured in such a Court in such a deposition and so pleaded that certainly and it was found for the Defendant at the Nisi prius and Judgment was given accordingly and the Defendant afterwards published the same words of the Plaintiff upon which he brought a new Action for the new publication in which the Defendant pleaded in Barr the first Judgment upon which the Plaintiff demurred and it was adjudged without any Contradiction that it was a good Barr. Hillari 8. Jacobi 1610. In the common Bench. Andrewe against Ledsam in the Star Chamber ANdrewe exhibited his bill in the Star Chamber against Ledsam the matter Andrew being a rich Usurer delivered to Ledsam being a Scriâ—ener one thousand pound to be imployed for him for Interest that is for ten pound for the use of every hundred pound for every yeare Ledsam being a Prodigall man as it seemes spent the Money and delivered to Andrewe diverse severall obligations every of them containing three severall persons well known to be sufficient being some of them Knights others Gentlemen and Esquires of great Estates and the other good Citizens without exceptions were bound to Andrewe in two hundred pound for the payment of one hundred sixty pound to Andrew at a day to come within six Moneths then next comming as Andrew had used before to lend his Money and delivered the Obligations with Seales unto them and the names of the parties mentioned to be bound by that subscribed and his own name also subscribed as witnessing the sealing and delivery of them as a publique Notary aâ— the good and lawfull obligations of the Parties which were mentioned in them where indeed the parties mentioned in them had not any notice of any of them But Ledsam had forged and counterfeited them as he hath confessed upon his Examination upon Interrogatories administred by the Plaintiff in this Court and at the hearing of the Cause and sentence of that it was moved if Ledsam shaâ—l loose both his Eares or but one for if it be but one forgery then by the Statute of 5. Eliz. Admitting that the Bill is grounded upon this Statute he shall loose an Eare and pay the double dammageâ— and cost to the party greeved And also if Andrew being but the Obligee and not any of the parties in whose names the Obligations were forged if he be such a party greived which shall have double costs and dammages and these doubts were resolved by Coke cheife Justice of the Common Bench where they were moved and Flemming cheif Justice of the Kings Bench that Ledsam should loose but one eare for that shall be taken as one forgery for that it was made at one time and also that Andrew was the party greived within the Statute but Coke said that the Bill was generall that is against the Lawes and Statutes of the Realme and not precisely upon the Statute of 5. Eliz. For he said that when a Bill is founded upon an Act of Parliament that this ought to containe all the branches which are mentioned in the Act the which wants in this Bill but insomuch that it was adjudged in Parliament what punishment such offenders shall have they inflicted the same punishment which is appointed by the Statute and added to that that he should be Imprisoned till he found good Suerties for his good behaviour and also that hee shall be brought to every one of the Kings Courts at Westminster with great Papers in his hatt containing his offence in Capitall letters but the Lord Chancellor expounded the double dammages in such manner that is that they shall not be intended double Interest but only the Principall Debt Note that if Execution be directed to a Sheriffe to Arrest any man or to make Execution within a Liberty And the Sheriffe direct his Warrant to a Bayliffe of the Liberty for to make Execution of the Processe which makes it and after is a Fugitive and not able to answer for that the Lord of the Franchise shall answer for that and shall be liable to answer for his Bayliffe by all the Justices Burdett against Pix IN Debt upon a single Bill by Burdett against John Pix as administrator of Freewen the case was this that is Freewen was bound in an Obligation of thirty four pound to Burdett the Plaintiff and was also bound to one William Pix in 80. l. Freewen dyed Intestate and the Letters of Administration of his Goods were Committed after his Death to the said John Pix the Defendant and the said William Pix also made the said John Pix the Defendant his Executor and died and the Defendant in this Action pleads that the said Freewen was indebted to the said William Pix and that he was his Executor and that he had Goods of the said Freewens sufficient to satisfie the said debt the which he retained for the satisfaction of that and that over that he hath not of his to satisfie him upon which the Plaintiff Demâ—…or that that the Defendant doth not plead that he hath â—…is election to retaine the said goods for the satisfaction of â—…own said Debt before the Action brought and by all the Justices he ought to make his election before the bringing of the Action otherwise he shall be charged with the other Debt See Woodward and Darcyes Case Commentaries 184. a. and 4. Cook 30. Coulters Case Hillary 8. Jacobi 1610. in the Common Bench. Bone against Stretton THe case was this A man seised of two Acres of Land makes a Lease for years of one Acre to one and another Lease for yeares of the other Acre to another and then he enters and makes a Feoffment and severall Liveryes upon the severall Acres and one of the Lessees being present doth not assent to the said Livery and the use of the said Feoffment was not the use of his last Will and then he declares his last Will and by that recites the said Feoffment and then declares the use of that to be to the use of himself for life the remainder over to a stranger and after the Tenant for years which did not assent to the Livery grants his Estate to the Feoffor and the Feoffor dies and Nicholls Serjeant moved first That this enures as a grant of a reversion and that the grant of the perticuler Tenant enures first as an Attornement and then as a surrender of his Estate as if it had been an expresse surrender and all the Justices agreed that this doth not enure to make Attornement and surrender as expresse surrender will for an expresse surrender admits the reversion to be in the Grantee to whom the surrender is made
Cletherwoods Case of the Middle Temple but he said that Prescription to have all the Vesture of the Land is good for such a time and at the first day of the Argument of this Case Foster Justice seemed that the prescription was good and might have reasonable beginning that is by Grant as if they have Common together and they agree that one shall have all for one part of the yeare and the other for another part of the year and that shall be good to which Coke answered that that cannot be by Prescription to have that as Common and at another day Coke cited Shirland and Whites Case to be adjudged 26 of Eliz. in the Kings Bench to be prescription to have common in the Waste of the Lord and to exclude the Lord to have common in the place and adjudged to be void prescription and also he cited a case between Chimery and Fist where prescription was to have common in the Soile of the Lord and that the Lord shall have feeding but for so many cattell and adjudged that the Prescription was not good to exclude the Lord but a man may prescribe to have the first Crop or the first Vesture of anothers Land and it is good and with that agrees the resolution in Kiddermisters Case in the Star-Chamber Warburton justice said that this prescription is not for the excluding of the Lord but for their good ordering of their Lands according to the Book of 46 Ed. 3 25. before cited that the great Cattell should have the first feeding and after that the sheep Coke said that if it had appeared by the pleading that all the Demesnes of the Lord ought to be common and in consideration that the Lord had inclosed part and injoyed that in severall the Free-holders and Tenants of the Mannor which have Common over all the Residue and exclude the Lord and this shall be good by prescription and it is adjourned see 15 Ed. 2. Fitzherbert Prescription 51. And afterwards in Trinity Tearme 1612. 10. Jacobi this case was moved againe and all the Justices agreed as this Pleading is Judgment shall be given for the Plaintiff and they moved the parties to replead Pasch 9. Jacobi in the Common Bench. Portington against Rogers Trin. 8. Jacobi Rot. 3823. MARY Portington brought a Trespasse against Robert Rogers and others Defendants for the breaking of her house and Close upon not guilty pleaded and speciall Verdict found the Case was this A man had Issue three Daughters and made his Will in writing and by that devised certain Land to the youngest Daughter in taile the Remainder to the Eldest Daughter in taile the Remainder to the middlemost daughter in taile with Proviso that if my sayd daughters or any of them or any other Person or persons before enamed to whom any estate of Inheritance in possession or Remainder of in or to the said Lands limited or appointed by this my last Will and Testament or to the Heires before mentioned of them or any of them shall joyntly or severally by themselves or together with any other willingly apparently and advisedly conclude and agree to or for the doing or execution of any Act or Devise whereby or wherewith the said Premises so to them intailed as aforesaid or any part or parcell thereof or any estate or Remainder thereof shall or may by any way or means be discontinued aliened or put away from such person or persons and their Heires or any of them contrary to mine intent and meaning in this my Will otherwise then for a Joynture or shall willingly or advisedly commit or do any act or thing whereby the premises or any part thereof shall not or may not discend remaine or come to such persons and in such sort and order as I have before limited and appointed by this my last Will and Testament then I will limit declare and appoint that then my said Daughter or Daughters or other the said person or persons before named and every of them so concluding and agreeing to or for the doing or execution of any such act or Devise as is aforesaid shall immediately from and after such concluding and agreeing loose and forfeit and be utterly barred and excluded of and from all and every such Estate Remainder and benefit as shee or they or any of them should might or ought justly to have claime Challenge and demand of in or to so much thereof as such conclusion or agreement shall extend unto or concern in such manner and forme as if she or they or any of them had not been named nor mentioned in this my last Will and Testament and that the Estate of such person c. shall cease and determine c. And after that the youngest Daughter tooke a Husband and then shee and her Husband concluded and agreed to suffer a Recovery and so to barr the Remainder and upon that the Plaintiff being the eldest Daughter entred and upon the Entry brought this Action And Harris Serjeant argued for the Defendant that this shall be a condion and not a limitation and he said that Mews and Scholiasticas Case is not adjudged against him see the Commentaries 412. b. And it shall be taken strictly for that that it comes in Defesans of the Estate and then admitting it is a condition it is not broken for this conclusion and agreement is only the agreement of the Husband and though that the Wife be joyned yet be that for her benefit or prejudice that shall be intended only the Act of the Husband and he only shall be charged as in the 48 Ed. 3 18. Husband and Wife joyne in Contract and the Husband only brings Action upon that and 45 Ed. 3. 11. Husband and Wife joyne in Covenant and the Action was brought against them both and it was abated for that shall charge the Husband only 24 Ed. 3. 38 The Husband and the Wife joyne in an Action upon the Statute of Laborers and the Writ abated and so in cases of Free-hold as 15 Ed. 4. 29. b. The Husband and the Wife being Tenants for life joyne in praying aid of a stranger and this shall be no forfeiture of the Estate of the Wife and 48 Ed. 3. 12. a. Statute Merchant was made to the husband and Wife and they joyned in Defeasans that shall not be Defeasans of the Wife and 28 H. 8. Dyer 6. The Husband of the Wife Executrix aliens the Tearme which was let to the Testator upon condition that he or his Executors should not alien and by Baldwin by the alienation of the Husband the Condition was not broken for it was out of the words so here the agreement and conclusion being made by Husband and Wife shall be intended the Act of the Husband only and so out of the Words and by consequence out of the intent of the Condition and shall be taken strictly but he seemed that the Condition shall be void for the Words conclude and agree are words uncertain for what
opinion without argument Coke cheif Justice that the agreement is void to a Woman married for then she was married to a Husband whom in her life she could not contradict and a Devise upon Condition that if she conclude or agree as this Case is is void for it is a bare communication upon which the Inheritance doth not depend and so he said it hath been twice adjudged 6 in Corbets Case and Germins Case and Arscots Case and Richells Case in Littleton it was upon condition that he should not alien and this was adjudged to be void but yet if the condition were if he alien and not if go about or intend or conclude or agree as in the case at the Bar for there is no such case in all our Bookes as this Secondly For that that the Words are if they do any act that then the Estate shall cease and this is repugnant for when the Act is done then the Estate tayle is Barred and cannot cease but if it had been but a Feoffment then the right had remained and he said that such a condition had been void before the Statute of Donis Conditionalibus when it was but Fee simple Conditionall be it a Condition or a Limitation and he said that Scholasticas Case is of Fine which is only discontinuance till the Proclamations are past and if dead before may be avoided by Remitter in Germins and Arscotts Case the Condition was that if he go about or indeavour and this was adjudged to be void though that it be in devise in respect of the uncertainty and he said that the agreement or conclusion is so uncertain and may be well compared to that for here the Estate shall cease by the agreement as well as it may cease by the going about also he seemed that the Freehold cannot cease without entry for if use cannot cease without entry as he intends much lesse a Free-hold cannot though it be by Devise and he seemed that it shall be no limitation but a Condition and Judgment accordingly if cause be not shewed the next Tearm and in Trinity Tearme then next insuing this Case was argued againe by Dodridge Serjeant of the King for the Plaintiff and he said that there are three questions to be disputed First If it be a good limitation Secondly If the recovery be a breach of that Thirdly Admitting that it may be broken if the agreement of the Husband and the wife shall be said to breake it and to the first he seemed that it is a limitation and not a condition and such a Limitation that well might be with the Law and that it is a Limitation it is agreed in Scholasticas Case Commentaries and the reason of the Judgment there is that if the intent of the Devisor appears that another shall take benefit of that and not the Heire that then it shall be but a limitation and not a Condition and he in remainder shall take benefit of that and for that in the principall case Mary the Eldest Daughter to whom the Remainder was limited shall take benefit of that and with this agrees the case of Fitz. Na. Bre. Ex gravi querela last case that if a man devises Lands to his Wife for life upon condition that if she marry that the Land shall remain over and after she marryes and he in Remainder sues by Gravi querela by which it appears that it is a limitation and not a condition and with this agrees 2. and 3. P. and M. 127. Dyer Jasper Warrens Case where a man devises land to his Wife for life upon condition to bring up his Sonn Remainder over and agreed to be a limitation and not a condition and so he concluded this first point that it is a limitation and not a condition Secondly that it is a lawfull limitation for there is not any repugnancy in that as it is in Corebts before cited for there are no words of going about for he agreed that this is absolutely uncertain and void and so is Germin Arscots case where ther is not only a going about but repugnant going about for he ought to go about and before discontinuance and then his Estate shall be void from the time of the going about and before discontinuance but here it is upon conclude and agree plainly and apparently and conclude and agree is issuable and a Jury may try that and it will not invegle any man but the Law will not suffer Issue upon such uncertainty as going about or purposing but Attornements and Surrenders are but agreements and yet are Issuable And so in the principall case and in Mildmayes Case 6 Coke it is agreed that a condition that a Tenant in taile shall not suffer a Recovery is void for Recovery is not restrained by the Statute of Westminster 2. but here it is not so but in generall that he shall not conclude or agree to alien or discontinue but that which cannot be a condition good in the particular may be good in the generall as Littletons Case gift in taile upon condition that he should not alien is good otherwise of Fee simple with which 10 H. 7. 11. and 13 H. 7. 23. 24. accordingly Thirdly That it is a breach of the limitation Condition that alienation and discontinuance be by Recovery which is a lawfull act and it is a priviledge incident to the Estate taile and though that the agreement was made by the Husband and the Wife during the Coverture and so should be if the Husband and the Wife had levied a Fine see 10 H. 7 13. Condition that if the condition had been expressed that they should not levy a Fine had been void and here this verball agreement betwixt the Husband and the Wife and the third person shall be for Forfeiture of their Estates for this is the agreement of the Wife as well as of the Husband as it appears by Becwithes Case 2. Coke before cited where the Husband and the Wife agree to levy a Fine and that the Fine shall be to the use of the Connusee this is good declaration of the use though that it be of the Land of the Wife and during the Coverture and cannot be avoided by the Wife after the death of her Husband for it was the agreement of the Wife though it be not by any Indenture to declare the use of the Fine so many acts in the Country made by the Husband and the Wife shall be intended the act of the Wife as well as of the Husband as in the 17 Ed. 3. 9. The Abbot of Peterboroughs Case the Husband and Wife granted Rent for equality of partition and this shall binde the Wife after the death of the Husband for it is her act as well as the act of the Husband and shall be intended for her benefit and so here by the Recovery the Wife shall be Tenant in Fee simple which was Tenant in taile before and 34 Ed. 3. 42. feoffment to a married Wife upon
brings an action of Trespasse and the first Nonsuit pleaded in Barr and adjudged a good Barr 12 Edw. 4. accordingly Foster Walmesley and Warburton agreed without any doubt but they sayd that if the first execution had been had by Covin then it should have been otherwise In Debt upon buying of diverse severall things the Defendant confesseth part and for the residue the action being brought by an Executor in the Detinet onely the Defendant pleads he oweth him nothing and upon this Tryall was had and Verdict for the Plaintiff and after Verdict it was moved that this misjoyning of Issue was ayded by the Statute of Jeofailes but it was resolved by all the Justices that it was not ayded for it was no misjoyning of the Issue but no Issue at all but if there had been Issue joyned though that it were not upon the direct matter yet this shall be ayded and at the end the Plaintiff remitted the part that the Issue was joyned and prayed Judgment for the residue and this was granted but if the Plaintiff had been nonsuited that would go to all Administrators during the minority had Judgment in debt and before execution sued the Executor came to his age of seventeen yeares and how this execution shall be sued comes the question for the power of the Administrator was determined by the attaining of age of 17. yeares by the Executor and the Executor was not party to the Record and for that he could not sue execution but it seems that the Executor may sue speciall Scire facias upon the Record and so sue execution in his owne name See 27 H. 8. 7. a. Action upon the Case for these words He hath stolne forty Staure of Lead meaning Lead in Stauce from the Minster and resolved by all that action doth not lye for it shall be intended that the Lead was parcell of the Minster and the Innuendo shall not helpe that Pasche 9. Jacobi 1611. In Common Bench Crane against Colepit THomas Crane Plaintiff in Replevin against Bartholemew Colepit the only question was if Tenant by discent of the age of twenty years and more ought under one and twenty yeares to attorn to a Grant of the signiory or not and it was adjudged that the Attornement is good for three reasons First For that he gives no Interest and for that it cannot be upon condition for it is but a bare assent Secondly His Ancestors held the same Land by the payment of the Rent and making of their Services and it is reason that the Rent should be payd and the Services performed and for that though that he shall have his age for the Land yet for the Rent he shall not have his age and though that it is agreed in 32 Ed. 3. That he shall have his age In per que servitia yet after his full age the Grantee shall distraine for all the arrerages due from the first so that the Attornement is no prejudice for this Infant and he is in the number of those which shall be compellable to attorn see 41 Ed. 3. age 23. 26 Ed 3. 32. 32 Ed. 3. and 31 Ed. 3. Per que servitia 9 Ed. 3. 38. 32 Ed. 3. Infant of the age of three years attorned and good and 3 Ed. 3. 42. Husband attornes and that shall bind the Wife 12 Ed. 4. 4. 18 H. 6. Attornement of an Infant is good to binde him for that it is a lawfull act Thirdly The Attornement is a perfect thing of which the Law requires the finishing that is the grant of the signiory which is not perfect till the Tenant attorn and Foster Justice said that so it had been adjudged in this Court in the time of the Reigne of Elizabeth in which Judgment all the Justices agreed with one voyce without any contradiction See 26. Ed. 3. 62. Pasch 9. Jacobi 1611. In the Common Bench. As yet Rowles against Mason see the beginning Michaelmas 8. Jacobi DOdridge Serjeant of the King argued for the Plaintiff he saith that there are two Copies first that a Copy-holder for life under a 100. l. may nominate his Successor Secondly That such Copy-holder after such nomination may cut down all the Trees growing upon his Copy-hold and sell them and he saith that it hath been adjudged that the custome that Copy-holder for life may sell the Trees growing upon his Copy-hold is void between Popham and Hill Hillary 45 Eliz. in this Court so if the first custome doth not make difference by the nomination the second is resolved to be void and it seemes to him that the first custome doth not make difference and to the objection that the first custome hath been adjudged to be good between Bale and Crab he saith that the custome adjudged and this custome as it is found differs in many points First It was found that every Copy-holder for life solely seised without Remainder but here is sole Tenant in possession and this may be where there is a Remainder so that uncertainty in this makes the custome void as in 6 Ed. 3. custome that an Infant at the age of discretion may alien is void for uncertainty also in the case here it is found that the Copy-holder may name who shall be next Tenant to the Lord and doth not say to whom the nomination shall be made but in the first case the custome is found to be that the nomination ought to be to the Lord in the presence of two Copy-holders also in the first it is found that if they cannot agree of the Fine that the Homage shall assess it but in this custome here found there is not any mention of that he ought to seek to be admitted and doth not say at what court the which ought to be shewed in certain as it is resolved in Penimans Case 5 Coke 84. Where custome that a Feoffment ought to be inrolled is expressed shall be inrolled at the next court also in the first case to be found that after the Fine is payd or offered he which is named shall be admitted and here is not any mention of that so that he concluded that this is a new custome and not the same custome which was in question between Bayle and Colepit also it is found that the trees were cut immediately after nomination of a new Tenant and before any admittance or Fine payd for him so that insomuch that the Benefit was not equall as well as to the Lord as to the Tenant as in 2 Ed. 4. 28. and 22 Ed. 4. 80. For plowing and turning upon the Land of another for that the custome shall be void And to the second custome also it seems that that is voyd and unreasonable First for that when any is alledged in the custome that is inconvenient though that it be not mischeivous yet the custome shall be void as in 4. Assisarum 27. in Assise brought against an Abbot which pleads custome that all the houses of the South side of
that yet the Copy-holder hath nor forfeited his Estate for the Trees and the Mannor are granted by severall Grants and for that though that they are by one selfe same Deed yet by that the Trees are severed from the Mannor and the Trees are the cause of the forfeiture and they are no parcell of the Mannor as in 31 Edw. 3. Assis 441. by sale of a Castle the services are extinct So here the forfeiture cannot accrue to the Mannor when that commeth by reason of Trees which are severed by reason of severall Grants and he thought that the Grant shall be taken more strong against him which made it as if a man in the Premises give Fee-simple to have in tayl the Estate tayl shall be precedent and the Fee-simple depending upon that so if a man have the next avoydance of a Church and the Church becomes voyd and after he purchase the Advowson yet the Presentation remaines as it was before for that is the best thing and so it is resolved in Herlackendens Case 4 Coke 63. b. That if a man makes a Lease for yeares of Land except the Trees and after grants the Trees to the Lessee that the Trees are not reunited to the Land and so he concluded that it shall be no forfeiture and prayed Judgment for the Defendant and this Case was argued againe Michaelmas 9 Jacobi by Shirley for the Plaintiff that the first custome was voyd insomuch that he claimed to doe a greater thing then his Estate would warrant as in 35 H. 6. Custome that if one Pawne the Goods of another that he which hath them Pawned may keep them whosoever they were is not good as Custome that the Tenant in tayle may devise is voyd for his Estate will not warrant it and it is prejudice to the Tenant in reversion So Custome that Copy-holder shall have Common and another Custome that none shall put in his Beasts till the Lord put in his 2. H. 4. 24. Also there is no Fine Limited to be tendred by the Tenant or to be demanded by the Lord And if a Copy-holder refuse to pay his Fine it is a Forfeyture and if the Custome do not provide for the Fine of the Lord as for the Copy-holder the Custome shall be void Also here cannot be admittance for Littleton saith that the sole meanes to transfer Copy-hold is by Surrender And here if the Custome should be good the copy-hold should be transferred by Nomination only and so the Lord should be Defeated of his Fine and it seemes also that the second Custome is void for it is contrary to the Estate of a copy-holder to sell all the Trees but he agreed that he might have Estovers for houseboote and hedgboote as it was adjudged in Swayne and Becketts Case and he cited the 19. assis Where a Commoner made a Lease for life and void for that that the Estate would not support it 9. H. 6. 56. and 11. H. 6. 40. Prescription to sell Estovers is void for Estovers are appropriate to a house And also it was adjudged in this Court between Poltocke and Powell that a copy-holder for life cannot prescribe to sell the Trees for it is contrary to his Estate as if a Custome be that if a Feoffor die his Heire within age that he shall be in Ward as 8. H. 6. And he thought that the Nomination was no alteration for he to whom the Nomination is made hath only an Estate for life when the Nomination is made and that doth not warrant the sale of the Trees and to the third it seemes that the Lord of the Mannor bargaine and sells the Trees and after lets the Mannor to the bargainee for years and then copy-holder makes wast he thought that the Trees were not severed from the Mannor as in 33. H. 8. 48. Dyer 2. if a man bargaine and sell a Mannor and after in the same Deed makes a bargaine and sale of an Advowson appendant this remaines appendant So if a man bargaine and sell a Mannor and also the Trees do not passe till Livery be made of the Mannor So if Lessee for yeares gives and grants the Land and makes a Letter of Attorney to make Livery the tearme passes without Livery and then it is a Forfeyture And here the Lessee shall have the benefit of Shade and Burrough and the Trees themselves during the Tearme as parcell of the Land and then when the copy-holder hath done more then his Estate will warrant this is a forfeyture and the Lessee shall take the advantage of it and so he praied Judgement for the Plaintiff Harris for the Defendant that the Customes are good but admitting that so yet the Plaintiff shall not take advantage of it and he argued that Custome ought to have two properties first reasonable secondly ought to have time to make that perfect and then shall be good as it appears by the examples of Littleton f. 37. of Burrough English and Gavelkind and custome may be against common right but not against common reason which is the common Law 8 Ed. 4. 18. 21 Ed. 3. 4. And he intended here that the second custome is good if the first be good for then it is perpetuall Free-hold and Copy-hold Estate of Inheritance is but an Estate at will at the Common Law and yet such Copy-holder may dispose the Trees as well as custome may create the Estate as well may it give such priviledge as custome may warrant the taking of Toll for passing over the soile of another 22 Assise 58. And so custome to have the Foldage of the Beasts which feeds upon his soil is good but custome for paying the Goods of another is not good for there is not any recompence but fishing in the Sea and to dig the soile adjoyning for landing of his Nets is good for this is for the publick good 8 Ed. 4. 23. So the custome for turning upon head-land of another is good and is for the preservation of Tilling and also it is between Lord an Tenant and shall be intended to have a reasonable beginning for consideration c. That this continues for he hath Fines and other Services and yet 3 Eliz. 199. Dyer If the Lord claim Harriot of his Tenant and if it be Esloyned alledge custome that he may take the Beasts that he found upon the Land in Withernam and this was adjudged unreasonable custome so 20 H. 7. 13. Custome to have three shillings of a stranger for pound-breach is void but of a Tenant is otherwise for it shall be intended to be a lawfull beginning 11 H. 7. 40. So here the beginning shal be intended to be lawfull and for valuable consideration and for this it shall be good and to the second custome it follows by consequence to be a good custome if the first should be good and then to the third he agreed that Copyholder cannot make wast and if he do it shall be a forefeiture of his Estate as it is said
that the Husband was subject to that then by consequence it was intended that all persons which were chargeable by the common Law shall be chargeable by the Statute and by the action which is formed upon that and by the common Law the Husband was chargeable and by consequence shall be chargeble by the Statute and he intends that there would be difference between actuall wrongs and others which are come by omission and if the VVife be the person which did the wrong then she shall be punished as well by Statute as she was before by the common Law also she shal be out-lawed and it hath been agreed that Ravishment of Ward shall be maintainable against the Husband and the wife if they both are Ravishers and also if the wife be Ravisher before marriage and after takes a Husband the Husband shall be charged with the damages and his Body shall be imprisoned and by consequence shall be abjured also shee may make an Executor by the consent of her Husband but admitting that she could not then the remedy is given against the Heir and she shall be within this Statute as well as other Statutes made in the time of the said King as the Statute of Westminster 1. 37. And shall be a Disseisor with force and shall be imprisoned whether the Husband joyn with her or not as it is adjudged 16 Assise 7. for all Statutes which provide for actuall wrong a married VVife shall be intended within them as it is 9 H. 4. 6. But the pleading of Joyntenancy there the Plea is the act of the Husband and so fayling of Record upon the Statute of 34 Ed. 3. as it is 16 Assise 8. for the Husband propounds the exception but if the VVife propounds the exception then she shall be within the Statute and shall be imprisoned 21 Assise So if a married VVife make actuall disseisin with force she shall be imprisoned 9 H. 4. 7. b. 8 Ed. 3. 52. 22 Ed. 2 Damages 20. 27 H. 6. Ward 118. And so the President Trinity 33 H. 8. Rot. 347. in a case between Thomas Earle of Rutland against Lawrence Savage and his VVife in Ravishment of Ward at the Nisi prius the Defendants make default and the Judgment was that the Husband and the VVife should be taken and upon that he inferred that the Husband should be subject and charged with the damages and so it is taken upon the statute of 35. Eliz. That the Husband shall be charged with Debt for the Recusancy of the VVife and shall be imprisoned for the not payment of it as to the verdict it seems that this is good and it shall be intended the VVard was marryed by the Defendants as in 33 Ed. 3. Verdict 48. It is found by verdict that Mulier enters and resolved that this shall be intended in the life of the Bastard or otherwise it is nothing worth and in Fulwoods case 4 Coke the Jury found that the Defendant acknowledged himself to be bound and that shall be intended according to the statute of 23 H. 8. and so here though that it be not found that the VVard was married by these Defendants yet it shall be so intended notwithstanding that nothing is found but only that he appeared married and so he concluded and prayed Judgment for the Plaintiff This case was sollemnly argued this Tearme by all the Justices that is Coke and Walmesley Warberton and Foster and upon their selemn arguments Coke and Walmesley were of opinion that a married wife is not within the statute and Warberton and Foster were of the contrary opinion and so by reason of their contrariety in opinion the Judgment was staid Trinity 9. Jacobi 1611. in the Common Bench. Burnham against Bayne THE case was A Man seised of divers Lands the halfe of them were extended by Elegit and before Judgement was had against him a new Elegit Awarded and if all the halfe which remaines or but the halfe of that which was the fourth part of all should be extended was the question And it was agreed by all the Justices that but the halfe of that which remaines and not the halfe of all which he had at the time of the Judgement But the halfe of that which he had at the time of the Elegit And if all which remaines be extended the Extent shall be void by all the Justices see 10. Ed. 2 Execution 137 16. E. 2. Execution 118. And here the principall case was A man hath a Rent of forty pound reserved upon a Lease for years and two Judgments in Debt were had against him at the Suit of Sir Thomas Cambell and three Judgments at the Suit of the Plaintiff the halfe was first extended by Elegit upon the first Judgment had at the Suit of Sir Thomas Cambell and after upon the Judgment had at his Suit the halfe of the residue was extended and after upon the Judgment at the Suit of the Plaintiff all the residue was extended and all the Justices agreed that the Extent was void for they ought to extend but the halfe of that which remaines and that was but the fourth part Trinity 9. Jacobi 1611. In the Common Bench. Trobervill against Brent THE Case was A man makes a Lease for yeares rendring Rent and after grants the Reversion for life to which Grant the Lessee for years attornes the Grantee acknowledgeth a statute and after surrenders his Estate the Conusee extends the Statute and distraines for the Rent and in Replevin avowes for the cause aforesaid and adjudged that the Avowry was good Agreed that Creditor may sue the Executors and the Heir of the Debtor also but he shall have but one Execution with satisfaction see the Statute of 23 H. 8. for such course in the Exche quer Note that no Court of Equity may examine any matter of Equity after Judgment which was precedent the Judgment see the Statute of 4 H. 4. chapt 23. Trinity 9. Jacobi 1611. In the Common Bench. Hamond against Jethro THe case was this Edward Hamond was Plaintiff in Debt upon a Bill against VVilliam Jethro and the Bill was made in this manner Memorandum that I VVilliam Jethro do owe and am indebted unto Edward Hamond in the Sum of ten pound for the payment whereof I binde my self c. In witnesse and after the in witnesse it was thus subscribed Memorandum that the said VVilliam Jethro be not compelled to pay the said ten pound untill he recovers thirty pound upon an obligation against A. B. c. And in the Count was no mention made of this Subscription but this appears when the Defendant prayes hearing of the Bill the which was then entered Verbatim of Record and upon that the Defendant demurred in Law Harris Serjeant for the Plaintiff agreed that if it had been in the Body of the Bill it ought to have been contained in the Count to inable the Plaintiff to his action but that which is after in witnesse
any satisfaction in tender to satisfaction Insomuch that this is only the fruit of Tenure and not like to cutti ng of Trees nor to digging of Cole or other Ore And so Coke cheife Justice that it hath been adjudged and with this agreed the booke of 21. Ed. 3. 1. The manner to make Summons in Dower if the Land lieth in one County and the Church in another County Then upon the Statute the Sheriffe ought come to the next Church though it be in another County and there make Proclamation asthe Auditors in Accompt ought to commit the Accomptants found in arrerages to the next Gaole and there ought to be committed though that they are in another County The words of a Patent of a Judge of the Common Bench are as follows that is to say James by the grace of God c. Know that we have constituted Humphrey Winch Serjeant at Law one of our Justices of the Common Bench during our good pleasure with all and singuler Vales and Fees to the same office belonging and appertaning In Witnesse of which c. Michaelmasse 1611 9. Jacobi in the Common Bench. Jacob against Stilo Sowgate IN an Action upon the Case for slanderous words The declaration was that the Defendant said of the aforesaid Plaintiff that he is perjured to which the Defendant pleads that the Plaintiff another time hath brought an Action in the Kings Bench against the same Defendant for that that he the said Plaintiff was perjured and had cozened John Sowgate and that the Defendant had pleaded to all besides these words Thou art perjured not guilty and to the words thou art perjured he Justifies that the Plaintiff was perjured in making an Affidavit in the Star-chamber and this Issue was Joyned and it was found for the Defendant but it was not pleaded that any Judgement was given upon it And Haughton Serjeant for the Plaintiff which had Demurred upon the Defendants Plea Argued that the Plea is insufficient for if it shall be intended by that that the Plaintiff was afore times barred if it be in a reall Action it ought to be averred that it is for the same Land and if it be in a personall Action it ought to be averred that it is the same Debt or Trespasse and if it be pleaded by way of Justification then he ought to have averred also that the Plaintiff hath taken a false and untrue Oath upon which Issue might have been taken But here nothing is pleaded but the Record and nothing averred in Facto So that the Issue cannot be taken upon it for the pleading is only of Record and that the Defendant for the cause aforesaid in the Record afore said mentioned spoke the said words and this is not good for there is not contained any cause of Justification as in Quare Impedit in the 15. and 16 H. 6. The Defendant pleads that he was Incumbent by the cause aforesaid and without that But this was no good Plea for he ought to plead his Title specially And also it is not pleaded as Estoppell for then he ought to have relied upon that precisely as 35. H. 6. in Replevin the avowant relies upon discent 30. assis 32. 2. H. 7. 9. Also Estoppell it cannot be insomuch that Judgement was not given in the first Action Also it is not pleaded as Estoppell for the Plea is concluded Judgement if Action where he ought to have relied upon the Estoppell and peradventure also the Triall was voyd by unawarding of Venire Facias or other Error So that without Judgement it can be no Estoppell and so he concluded and praied Judgement for the Plaintiff Barker Serjeant argued for the Defendant that the Declaration is very good and notwithstanding that the words are generall that is he is perjured yet this may be supplyed very well by the Innuendo as it appeares by James and Alexanders Case 4. Coke 17. a. And also that Estoppell by the Verdict is good without Judgement as in Action of Debt release was pleaded and Issue joyned upon that and found for the Defendant and after another Action was brought for the same Debt and agreed that the first Virdict was Estoppell 2. Ed. 3. 19. b. c. And he cited Baxter and Styles Case to be adjudged in the point that the Estoppell is good and also Vernons Case 4. Coke where the bringing of a Writ of Dower Estopped the Wife to demand her Joynture and so concluded and prayed Judgement for the Defendant Coke the Count is good being of the aforesaid Plaintiff and may after be supplyed by Innuendo though that the words after are generall But if the words were generall that is He is perjured without saying that the Defendant spoke of the aforesaid Plaintiff these English words following Videlicet he Innuendo the Plaintiff is perjured this is not good and shall not be supplied by Innuendo and he said that another time convicted is a good Plea in case of life without Judgement but this is in favour of life but in trespasse it ought to be averred that it is the same Trespasse and also there ought to be Judgement and the Defendant ought to relye upon that as an Estoppell and agreed by all that Judgement should beâ—given for the Defendant if cause be not shewed to the contrary such a day c. Michaelmass 1611. 9. Jacobi in the Common Bench. Hall against Stanley IN Trespass for Assault and Imprisonment the Defendant justifies insomnch that the Action upon the case was begun in the Marshalsey for a Debt upon an Assumpsit made by the Plaintiff and that upon that Capias was awarded to this Defendant being a Minister of the said Court to Arrest the Plaintiff to answer in the said Action and that he by force of that Arrested the Plaintiff and him detained till the Plaintiff found suerties to answer to the said Action which is the same assault and Imprisonment To which the Plaintiff replied that none of the parties in the said Action were of the Kings houshold and so demanded Judgement upon which the Defendant Demurred in Law And Dodridge the Kings Serjeant for the Defendant that the Court of Marshalsey may hold Plea of Actions of Trespasse by the parties or any of them of the Kings house or not and he intended that the Jurisdiction at the Common Law was generall and then they have Jurisdiction of all Actions as well reall as personall and though that their Jurisdiction be in many cases restrained yet in an Action of Trespasse there is not any restraint but at this day they have two Jurisdictions That is in Criminall cases and also in Civill causes within the Virge See Fleta book the second and third where he discribes the Jurisdiction of all Courts and amongst them the Jurisdictions of this Court and also Britton which wrote in the time of Ed. 1. lib. 1. chap. 2. which saith it was held before Bygott who was then Earle
against the surviving Donee of houses and Lands to him demised and agreed that the Writ was good but it was a question if the Count shall be generall or of a halfe only notwithstanding that both the parties were Tenants in Common of the reversion Michaelmas 1611. 9. Jacobi in the Common Bench. Ralph Bagnall against John Tucker after 83. TRINITY 9. or Micaelmasse 8. Jacobi Rot 3648. The Case was Copy-holder for life remainder for life purchaseth the Frehold and levies a Fine with Proclamations made five yeares-passe and then he died if the remainder were bound by the Fine or not was the question and it seemes that it shall not be Barr for he is not turned out of possession in right So if a man hath a Lease for remainder for yeares and the first Lessee for yeares purchase the free-hold and levie a Fine with Proclamations and five yeares passe this shall not barr the remainder for yeares insomuch that this was Interest of a Tearme and remaines an Interest as it was without any alteration and it was not turned to a Right And yet it was agreed that the Statute of buying of pretenced rights extends to Copy-holds See Lessures Case 5. Coke 125. See Pasche 1612. for the Judgement Note if an Attorney of this Court be sued here by Bill of Priviledge he ought not to find Bayle But if he be sued by Originall and comes in by Capias then he ought to find Bayle In covenant upon a Lease made by the Dean of Norwich Predecessor to the Dean that now is and the then Chapter of the Foundation of Ed. 6. King for injoying of Land devised to the Plaintiff for three Lives discharged of all incumbrances and also to accept surrender of the same Lease and to make a new and for breaking of covenant the same Dean and Chapter in such a yeare of the Raine of H. 8 had made a lease for years not determined by which the lands devised were incumbred upon which the Defendant demurred And Hutton Serjeant for the Defendant argued that the Lease was by the Statute of 13 of Eliz. as to the successor of the Dean which made it for that it was a Lease for years in being at the time of the making of that as it is resolved in Elmers Case upon the Statute of 1 Eliz. if a Bishop makes a Lease for years and after makes a Lease for life the Lease for life is void to the Successor and so it is in the case of Dean and Chapter and though that the words of the Statute are generally that such a Lease shall be void to all intents purposes and Constructions yet he intended that it shall not be voyd against the Bishop himselfe as it was resolved in the case of the next Advowson by the Bishop in Singletons Case cyted in Lincolne Colledge Case 3. Coke 59. b. And he intended if the Lease be voyd against the Successors that then the covenants also are void as it is agreed in the 28 H. 8. 28. Dyer 189. 190. and he cited one Mills case to be adjudged in the 29 and 30. Eliz. in the Kings Bench that if a Parson make Lease and avoid by non-Residence the Covenants also are void as well as the Lease and also he intended that the Lease for life was void insomuch that it was to be executed by a Letter of Attorney and the Attorney had not made livery till after two Rent dayes were past and for that the Livery was not good for when a man makes a Lease for life rendring Rent with Letter of Attorney to make livery here is an implyed condition that Livery shall be made before any day of payment be incurred and it is as much as if a man had made a Lease for life without any Letter of Attorney to make Livery before such a day there if the Attorney do not make Livery before the day but after the Livery is void insomuch as it is contrary to the Condition so in the case here for if Livery made be after a Rent day it may be made after twenty and so immediately before the end of the Tearme and if the Rent be void for this cause the Covenants also are void and if a man bargain and sell his Mannor and the Trees growing upon it the Trees do not passe without Inrollment insomuch that it was the intent of the parties that it should so passe and for that they do not passe without the Mannor also he intended that the Count is repugnant insomuch that that containes that the last Lease for life was made in the time of Ed. 6. and after by the Dean and Chapter of the foundation of Ed. 6. and after that containes that the same Dean and Chapter have made a former Lease in the time of H. 8. Which cannot be if the Dean and Chapter were of the Foundation of Ed. 6. and for that the Count ought to have contained the alteration of the foundation as in case of prescription as in Tringhams case 4. Coke 38. Wyat Wilds Case 8 Coke 79. 2. and 3. Phil. and Mary Dyer 124. A good Case and he intended that a declaration ought to have precise certainty as in 8. and 9. Eliz. 254. Dyer for a thing which cannot be presumed shall not be intended as it is agreed in Pigotts Case 5 Coke 29. a. otherwise of Plea in Barr for that is sufficient if it be good to common intent also he intended that there is variance between the Count and the Covenant for the declaration is that the Dean and Chapter covenanted with the Plaintiffs the Covenant is generall that is that the Dean and Chapter covenant and doth not say with who and for that the Count also shall not be good and so he concluded and prayed Judgment for the Defendant Haughton Serjeant for the Plaintiff intended that the Covenants shall not be voyd notwithstanding that the Lease it self be voyd he intended that a lease made by a Parson shal be good against himself but it shall be voyd by his death to the Successor but a Lease made by a Dean and Chapter shall be void to the Dean himself and the Covenant shall be in force notwithstanding that the Lease be void insomuch that the Covenants are collaterall and have not any dependance upon the Lease but to the inherent Covenants which depend upon the Lease and the Estate as for Reparations and such like shall be voyd by the avoidance of the Lease but he intended that Covenant to discharge the Land from incumbrances doth not depend upon the Interest but it is meerly collaterall and for that it shall not be void and with this difference he agreed all the Cases put of the other part as in 45 Ed. 3. 3. Lease was made to the Husband and Wife the Husband dies the wife accepts the Land and shall not be charged with collaterall Covenants notwithstanding that shee agrees to the Estate insomuch that they do not depend
a good condition for this doth no wrong nor is repugnant to the Estate given or leased And secondly he argued that admitting it is a good condition yet here is no act done to operate conclusion or agreement which might make a forfeiture for he sayd that Mildmayes case was an expresse condition that Tenant in tayl should not suffer common recovery the which he might lawfully do at the common Law and he was not restrayned by the Statute of Donis conditionalibus which was doubted till 12 Ed. 4. but here he intends that the agreement and conclusion in this case shall make no forfeiture in respect that the Wife in whom the Estate was marryed at the time of the making and then when her Husband joynes with her it shall be sayd the agreement of the Husband and not the agreement of the Wife and yet he aagreed the case in 20 H. 8. b. Dyer 1. that if a man makes a Lease for yeares upon condition that the Lessee his Executor or Assignes shall not alien and there if the Wife executrix and her second husband alien that this shall be forfeiture insomuch that there the condition followes the Estate and is inherent to it but here the agreement is collaterall and personall and this depends upon the Estate as if condition be that a woman shall not beate J. S. and she takes a Husband which beats him this shall not be forfeiture for the condition is annexed to the person of the wife and for that the beating of the Husband shall be no breach of the condition but the wast of the Husband is the Wast of the Wife also for that followes the Estate and is not personall so he agreed that acts made by a Wife married the which she is compellable to do are good as partition between Coparceners as it is sayd by Littleton or Administration of Goods by Executor or Administrator or to make attornement so of things made for her benefit as accepting an Obligation or the bringing of an action of Wast upon a Lease made by him are also good but here the agreement and conclusion made by her and her Husband are for the disadvantage of the Wife and for that they are meerly voyd as to the Wife as in 3 H. 6. 19. 50. Contract is made with the Husband and Wife and they joyne in debt upon that and the writ abated insomuch that the contract to the Wife is void and shall be intended to be made with the Husband only and so in Russells case 5 Coke 27. b. It is agreed that a marryed Wife cannot do any thing as Executrix to the prejudice of her Husband so in 45 Ed. 3. 11. Lease was made by Husband and wife and they covenanted to make suerties and after the Husband dies and the Wife accepts the Rent and she shall not be bound by her Covenant insomuch that this was Colaterall to the Estate and if it be so that the agreement made by the married Wife is void to her then it is no agreement and by consequence no forfeyture of the Estate Also he intended that the conclusion of the condition for the words of the condition depends only upon the agreement and conclusion and not upon any Act made So that the suffering of any Act doth not make any matter in the case nor is to the purpose and also the Replication relies only upon the agreement so that the Recovery is not materiall And he intended that it is a condition and that it cannot be Limitation insomuch that the words are that the Estate shall cease as if such person had not been named in the Will and so that the Estate shall cease as if he had been dead which are words of Defeazance only and not of Limitation for he doth not appoint the Estate to continue so long And also the words are repugnant for it cannot make the Estate void as if he had not been named for this is only the office of an Act of Parliament to make a man to be dead to one and to be alive to another purpose and so he concluded and praied Judgement for the Defendant Nicholls Serjeant for the Plaintiff argued that it is a matter sufficient upon which Judgement shall be given for the Plaintiff and he first considered the words of the Condition that is if the devisees by themselves or by any other shall make any conclusion or agreement c. This shall be a forfeyture as in 28 H. 8. 13. Dyer 65. Where a Lease was made to the Husband and Wife Proviso that if they are disposed to sell and alien the Tearme that the Lessor shall have the first offer and agreed that if that be a Condition and the Wife survive the Husband notwithstanding that it was not her Deed but the Act of the Husband she shall be bound by that insomuch that her Estate is bound with that and this was the pleasure of the Lessor and she cannot hold it otherwise then it was given and 47. Ed. 3. 12. If a man makes a Lease for yeares to the Husband and Wife and after outs them they shall joyne in a Covenant and so 48. Ed. 3. 18. They joyne in a Fine yet there the Husband only brings Debt for the money notwithstanding that it be the Land of the Wife which was sold and 38. Ed. 3. 9. If the Husband and the Wife joyne in Covenant See 45. Ed 3. 11. b. Where they joyne in Lease and also to make further assurance and the Husband and the Wife also charged with that and so in the 20. H. 6. 25. Feoffment was made to a woman sole upon condition and after she takes a Husband which breakes the Condition so in 35. assis 11. A woman sole makes a Feoffment upon condition to re-enfeoff upon request and after takes a Husband and then makes request and good and if it be so in these cases then in this case the Wife shall not be received to say the agreement was made against her will and for this see the Statute which gives Cui in vita to the Woman where the words are to whom she in her life could not contradict And after this agreement if the Husband give warrant of Attorney to suffer Recovery this is sufficient as it is agreed in 4. Ed. 3. and in 6. Coke 41. Mildmayes Case is agreed That if a man make a Feoffment to a Husband and a Wife upon condition that they shall not alien it is good to restraine alienation by which it apeares that if they Joyne in Feoffment that this shall be forfeyture and yet this is the Feoffment of the Husband only So here the agreement of them notwithstanding it is the Act of the Husband yet insomuch that it is against the expresse words of the Condition this shall be breach of the Condition and he intended that the words of the Condition amount to as much as if he had said that neither the Daughter sole nor the Daughter with another
Daughter or with another person shall make agreement and the other person of necessity shall be intended her Husband and so this agreement by the Husband and the Wife is within the words of the Condition And also he saith that it is argued in Becwiths Case 2. Coke that a married Wife may declare a use of a Fine which is levied of her Inheritance and if the Husband declare uses the Wife may controlle them And if an Estate be conveyed with power that the Husband with the assent of his Wife may revoke that the assent of the Wife to such revocation is good So if Proviso be that a married Wife only without her Husband may make revocation of uses and declare new this is good and revocation made by the Wife and declaration of new uses are very good and he agreed that in matters of Record the Husband cannot prejudice the Wife without her consent as Warrant of Attorney upon a Quid Juris Clamat or Per que servitia or other Act which concernes her Inheritance as in 9. H. 6. 52. 46. Ed. 3. 11. 43. Ed. 3. 5. and 27. H. 8. If a married Wife joyne with her Husband in a Feoffment of her owne Land rendring Rent and after the Husband dies and the Wife accepts the Rent this shall bind her which proves that it was her Feoffment as well as the Feoffment of the Husband Secondly he considered the words of the Condition which are Conclude and agree c the which he intended not to be so uncertaine as going about but they are Issuable and triable as it is agreed in 5. Ed. 4. 6. Com. 56. a. Wyrbish and Taylbois Case consent to a Ravishment within the Statute of 6. R. 2. is Issuable and triable so of consent and agreement within this Condition for though that the words are consent and agree yet it ought to be otherwise an Act subsequent that is reconvey suffer or other such Act or agreement shall not be forfeyture for to make Elopment which shall be a forfeyture of Dower there ought first to be consent but that is not sufficient but there ought to be also departure from the Husband and then the Law adjudges upon all the Act So here when it is an agreement and another Act subsequent which is executed then the Law shall judgeupon altogether and for that this agreement consists of two parts first when the Wife upon the motion of the Husband concludes and agrees to do the Act which is the beginning of the agreement and then when the Husband and the Wife upon that joyne in Deed indent as in this case this is a consummation and makes a breaking of the condition and this is not like the condition in Myldmaies Case where every going about ought to breake that as if he goe to Councell to be advised upon his Estate Thirdly he intenâ—ed that the condition is not repugnant to the Estate in respect that an other thing is to be done before the forfeyture and after the concluding and agreeing for the Wife remaines in Seisin after the agreement till the Recovery or other Act be executed And also he argued that before the Statute of 4. H. 7. of Fynes Tenant in tayl might be restrained of alienation of his Estate for untill that he could not Barr the Issue in tayl So at this day he intended that a gift in tayl upon condition that he shall levie a Fine without proclamations this is good and out of the power which is given to Tenant in tayl to Barr the Estate tayl by the levying of a Fine And levying of a Fine without proclamations is only a discontinuance and so tortious so when a Condition doth not extend to all acts but only to all unlawful acts and for that it doth not extend to a Recovery for that is a lawfull Act as it is agreed in Scholasticas Case 10. H. 7. 10 11. H. 7. 6 7. 21. H. 7. and 28 H. 8. Leomans Case If an ecclesiasticall person hath a Tearme with this condition that he shall not alien and after comes the Estate which inflicts punishment upon him for keeping of a Farme and yet it seemes it is a good condition But so upon the Statute of 4. H. 7. of fines If aman hath agift in tayl with condition that he shal not alien And after the Statute of 4. H. 7. is made which inables him to barr the Estate tayl by fine yet he intended that the condition should restraine him from all unlawfull Alienations And he intended as well as such a condition annexed to a Lease for life is good so is it being annexed to an Estate tayl for as well as it is in one case for the preservation of the reversion So is this in the other case and as in 6. Eliz. Dyer 227. Grant of Rent Proviso that it shall not charge the person of the Grantor shall not extend to the Executors of the Grantor but shall be determined by the death of the Grantor And so as a condition that a married Wife or an Infant shall not alien is good insomuch that this is wrong so he intended that if this were a good condition at the Common Law that Tenant in tayl shall not alien the Estate by 4. H. 7. and 37. H. 8. doth not inable Tenant in tayl to make alienation against such condition And it hath been agreed that if a man make a Feoffment in fee of the Mannor of D. And after makes a gift in tayl of the Mannor of S. upon condition that the Donee shall not alien the Mannor of D. this is a a good condition and in the 21. H. 7. 12. it is agreed that if a man make a Feoffment Causa Matrimonij Prolâ—cuti and after Divorce is sued there the free-hold shall be devested out of the Husband without entry And also he intended that a man might make a thing by devise the which he could not make by Act executed as Authority to sell his Lands to his Executors it good and yet in all cases of Authorities by Acts executed the Authority shall cease with the life of the party And for that there shall be one Law of devises and another Law of Acts executed by the party in his life as 29. assis 17. and Fitz. Na. Bre. in ex gravi querela last case the particuler Estate being created by devise ceases and remainder takes effect And then to the exception that the estate shall cease and remaine to him which had the next remainder the which is repugnant as it was intended and so is Jermy and Arscotts Case But here the words are that the Estate shall cease as if the party to which that is limited were dead without Issue from the time of the Contract and agreement and the remainder to him which hath the next remainder and not the Issue of him which made the forfeyture and also this Remainder from the time of the agreement and conclusion and not from the time of the Act
that Sir Thomas Fitzherbert had the possession by acceptance of the surrender of the estate conveyed to William Fitzherbert and his Wife notwithstanding it was admitted by pleading that he had that by Disseisin And all the Justices agreed that the Jury shall not be concluded by the pleading of the parties insomuch that they are sworn to speake the truth Pasche 1612. 10. Jacobi in the Common Bench. Brook Plaintiff against Cobb IN Wast the Plaintiff assignes waste in cutting down of 20. Oaks in such a Close and 40. Oaks in such a Close c. Upon the Evidence it appears that the said Oaks were remaining upon the Land for standils according to the statute at the last felling of that and they were of the growth of 16. or 20. years and that tithes were paid for it And it was agreed by the Lord Coke and all the Justices that this was no Waste insomuch it was felled as Acre wood And it was said by the Lord Coke that though it be of the age of 20. or 24. yeares yet if the use of the Parties be to fell such for seasonable Wood this shall not be Waste and if Tithes be paid for that it appears that it is no Timber Doctor Mannings Case in the Star-chamber ONe Golding as an Informer and not as party greived exhibits his Bill in the Star-chamber against Doctor Manning Chancellor to the Bishop of Exeter for Extortion Oppression and other offences It was resolved that when a Bill contains any particular offences and after the same Bill contains generall words which includes many offences of the same kind And the Plaintiff proves the particular offences he may examine other particular offences also included within these generall words in supplement and aggravation of the particular offences contained in the Bill and if they be proved the Court will give the greater and high sentence against the Defendant in respect of them notwithstanding that they be not particularly expressed in the Bill But if the Plaintiff hath not proved any of the offences particularly expressed in the Bill the Defendant shall not be censured by the particulars grounded upon the generall words of the Bill And if a man which is not party greived exhibite Bill for offence made to another person as against whom the offence was committed he shall not be allowed as Witnesse insomuch as he is party greived and by that he should be a witnesse in his own Cause Pasche 1612. 10. Jacobi in the Common Bench. William Peacock Plaintiff against Sir George Raynell IN the Sar-chamber the Plaintiff exhibits his Bill against the Defendant for Libelling and Infamous Letters the which was in this manner The Plaintiff being Heire generall to Richard Peacock which was of the age of eighty six yeares and had Lands of Inheritance to the value of 8. or 900. pound per annum and the Defendant had married the Daughter of Sir Edward Peacock which was a yonger brother of the said Richard Peacock and the said Defendant perceiving that the said Richard Peacock had purpose to settle his Inheritance upon the said Plaintiff and intending to remove the affection of the said Richard from the Plaintiff and to settle that in himselfe writes a Letter to the said Richard Peacock containing that the Plaintiff was not the Son of a Peacock and was a hunter of Tavernes and that divers women had followed him from London to the place of his dwelling and that he did desire to heare of the death of the said Richard and that all his Inheritance would not be sufficient to satisfie his Debts and many other matters concerning his Reputation and Credit to that subscribed his name this ensealed directed to the said R. Peacock And it was agreed that this was a Libell and for that the Defendant was Fined to two hundred pound and Imprisonment according to the course of the Court And the Plaintiff let loose to the Common Law for his recompence for the Damages he hath sustained But if the Letter had been directed to the Plaintiff himselfe and not to the third person then it should not have been a Libell or if it had been directed to a Father for Reformation of any Acts made by his Children it should be no Libell for it is not but for Reformation and not for Defamation for if a Letter containe scandalous matter and be directed to a third person if it be Reformarory and for no respect to himselfe it shall not be intended to be a Libell for with what mind it was made is to be respected As if a man write to a Father and his Letter containe scandalous matter concerning his Children of which he gives notice to the Father and adviseth the Father to have better regard to his Children this is only Reformatory without any respect of profit to him which wrote it But in the first case the Defendant intended his profit and his owne benefit and this was the difference Pasche 1612. 10. Jacobi In the Common Bench. Randall Crewe against Vernon IN the Star-chamber it was resolved That if the Defendant do not performe the Sentence of the Court as here he was to make acknowledgement of his offence committed against the Court of Exchequer at Chester and this acknowledgement was to be made at the great Assises at Chester and he did nor performe the Sentence and yet the Defendant could not be fined for this contempt but only Imprisonment and for that he was committed close Prisoner till he performed it But he could not be fined insomuch there was not any Bill upon which this Sentence should be founded Pasche 1612. 10. Jacobi in the Common Bench. Charnocke against Corey See before IN Debt against Administrator The Defendant pleades two Recognisances acknowledged by the Intestate which were not satisfied and that he had not any Goods or Chattells of the said Intestate unlesse Goods and Chattells which did amount to the Debts due by the said Recognisances And it seemed to all the Justices that the Plea was not good But that the Defendant ought to plead according to the Common forme that is that he hath no Goods besides or beyond the Goods to satisfie the two Recognisances or that he hath no Goods to such value which do not amount to the said Sums due by the two Recognisances And in these cases this manner of pleading is Implied confession that he hath Goods of such a value and so they should be assets if the Recognisances be discharged or remaine of Covin and fraud to deceive Creditor Pasche 1612. 10. Jacobi in the Common Bench Bicknell against Tucker see before 75. THE Case was A Copy-hold Estate was granted to one for life remainder to another for his life the first Copy-holder for life accepts a Bargaine and Sale of the free-hold from the Lord and after that levies a Fine with proclamations and five yeares passe and then he dies and if this Fine shall be a Barr to him which
shall be barred And the second those which have Right title or interest accrued after the Fine levied by reason of any matter which preceded the Fine and in both cases the Estate which is barred ought to be turned into a right or otherwise it shall not be barred the which cannot be here for the estate is given by the Custome and it is to have his beginning after the Death of the first Tenant and though that the first Tenant commit Forfeiture yet he in remainder cannot enter for his time is not yet come as in 45 Ed. 3. is a collaterall Lease with warranty to the Tenant for life in possession this shall not be a barr insomuch that it is made to him which hath possession so if a man make a Feoffment upon condition and the Feoffee levy a Fine with proclamations and five yeares passe and the condition is broken the Feoffee may enter at any time otherwise if the Fine had been levied after the condition broken and so if the Lord be intituâ—ed to have Cessavit and Fine is levied by the Tenant and five yeares passe he shall be barred and this was the cause of the Judgment in Saffins case insomuch as the Lessee had present interest to enter and this was altered into a Right by the Feoffment and then the Fine was a Barr but here he in Remainder hath no right till after the Death of him which was the first Tenant and then his right to the possession begins and then if a Fine had been levied with proclamation this shall be a Barr and so he concluded that Judgment should be entered for the Plaintiffe Coke cheife Justice accordingly and he agreed also that the sole question is if by acceptance of a Bargaine and sale by the first Tenant for life the Remainder be turned into a right and he sayd that right sometimes sleepeth but it never dyes but this shall be intended the right of the Law and not right of Land for that may be barred by Writ of Right at the Common Law and he intended that Copy-holdes are within the Statutes of Fines be they Copy-hold for life yeares in tayl or in fee for the third part of the Realme is in Copy-holdes and two parts in Lease for yeares and if these shall not be within the Statute then this doth not extend to three parts of the Realme and it is agreed in Heydons case 3 Coke 8. a. That when an act of Parliament doth not alter the Tenure Service Interest of Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act of Parliament shall extend to Copy-holds and also it is resolved to be within the Statute of 32 H. 8. Of Maintenance and also it is within the expresse Letter of this which containes the word Interest and Copy-holder hath interest and so also of Tenant by Statute Merchant then the question will be if the acceptance of a Bargaine and sale turnes that to a right and he intended that his Estate for life remaines though that it is only passive in acceptance of Bargain and sale and for that it shall not be prejudice more then if Tenant at will accepts a Bargaine and Sale for his Estate at will this notwithstanding remaines but if Lessee for years or life accepts a Fine upon conusance of right this is a forfeiture insomuch that it is a matter of record and it shall be an estoppel to say that he did not take Fee by that doth not admit the Reversion to be in another also insomuch that the Bargain and sale was executed by the Statute for this cause it shall not be prejudice as it was adjudged in the Lady Greshams case in the Exchequer 28 Eliz. Where two severall conveyances were made with power of Revocation upon tender of ten pound and adjudged by act of Parliament that a revocation was good and also that no license of alienation shall be made insomuch that it was by act of Parliament which doth no wrong and it is for the Trespasse for which the party ought to have license and if it be not Trespasse there need no license before hand nor pardon afterwards So if a man makes a Lease for yeares remainder for yeares the first Lessee accepts Bargaine and Sale this shall not turn these in remainder to prejudice Thirdly it seemes to him also that notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for life remains in Esse and is not determined For this differs from an Estate of Land for it shall not be subject to a Rent granted by the Lord the first Estate remaines till all the remainders are determined for the first tenant for life cannot surrender to the Lord also it is customary estate for by the Common Law this being granted to three successively this shall be determined and extinct for the third part for they three take into possession and the word successively shal be taken as void but here the Custome appoints that the remainder shall not have his beginning till the death of the first-Tenant and that they should take by succession and for that there is a difference between this customary Estate and other Estates at the Common Law and other surrenders for if a Copy-holder surrender to the use of another for life nothing passeth but for life only the Lord hath not any remainder by this Surrender and if this Tenant for life commits forfeiture he in reversion shall not take advantage of that and if at the Common Law Tenant for life remainder for life or in fee be and the first Tenant for life makes a Feoffment and after levies a Fine and resolved that he in reversion should not be bound till 5 years are incurred after the death of the 1. Tenant for life for then his title of Entry first accrues in apparancy and before that is in secrecy of which he in remainder is not held to take notice and so in this case he in remainder shall not be bound till five yeares are incurred after the death of the first Tenant and the rather insomuch as the first Estate remaines for that that the first Tenant was only passive and not active and so he concluded that Judgement shall be given for the Plaintiff insomuch that the Fine was no Bar and upon this concordance of all the three Justices in opinion no other Justices being present this Tearm Judgment was entered accordingly Pasche 1612. 10. Jacobi in the Common Bench. Danyell Waters against the Deane and chapter of Norwich IN covenant The case was this in 37 H. 8. the then Deane and Chapter of Norwich made a Lease to one Twaits for fifty yeares which ended 35 Eliz. in time of Ed. 6. The then Dean and Chapter surrendred all their possessions to the King which those newly endowed and incorporated by the name of Deane and Chapter of the foundation
of Ed. 6. and in the 8. Eliz. Salisbury then Deane and the then Chapter made a Lease to Thimblethorpe for 99. yeares to begin after the said Lease for fifty yeares made to Twaits And it doth not appeare by the pleading that Thimblethorpe entred But the succeeding Deane and Chapter in the 42. Eliz. made another Lease to Waters the Plaintiff for three lives rendring the ancient Rent quarterly with warrant of Attorney to make livery and it was not executed till after the end of three quarters of a yeare after the Sealing of it and when the time of three rent daies were Incurred And in this Lease the Deane and Chapter covenanted with Waters to acquit and save harmelesse the Lessee and the premises during the Tearme c. By reason of any Lease made by them or any of their Predecessors or by the Bishop And then the Plaintiff in his Court conveys the Lease made by Thimblethorpe to Doylye and that he intered and disturbed the Plaintiff and so assigned breach of covenant upon which this Action was founded upon which the Defendants demurr in Law And this was agreed by Dodridge the Kings Serjeant for the Defendants First that the Lease made to Waters was void and then the Covenants do not extend to charge the Defendants And he supposed the Lease to be void insomuch that the Attorney did not make Livery untill three Rent daies were incurred and the Lease was made as well for the benefit of the Lessor as for the Lessee for if the Lessee is to have the profits and the Lessor is to have the Rent And insomuch that the Livery was not made before a Rent incurred this tends to the prejudice of the Lessor and for that the Authority is countermanded and the Livery made after void for when a man hath a Letter of Attorney to make Livery he ought to make that in such manner as the Feoffer himselfe would make it and the Lessor cannot make that after a rent incurred for then he should loose that Rent Also Authority ought to be strictly pursued as in 36. H. 8. Dyer 62. 24. Letter of Attorney was made to three joyntly and severally to make Livery and reâ—…ved that two cannot do it see 11. H. 4. For it ought to be made joyntly or severally so here the Attorney ought to make the Livery as his Master will and that ought to be made before any Rent incurred And for this cause he intended the Lease to be void And then as to a Collaterall Covenant which is in effect no other but that the Plaintiff shall injoy the Land during the Tearme which is of an Estate which is nothing for if the Lease be void the Estate is nothing and the Lessee hath not any Tearme or Estate in the Land And he agreed that in the Record of Chedingtons Case 1 Coke 153. b. And in the Commentaries Wrotsleys Case 198. And 2. Eliz. Dyer 178. There is a difference betweene Tirminum Annorum and the time or space of yeares or the life of such a man but there is not any difference between a Tearme and an Estate Also he supposed that the words of the Covenant extend only to save the Plaintiff harmelesse of Leases made by these Defendants or any of their predecessors and this Lease was made to Twaits in time of H 8. Which was before their Corporation for they have been but named a Corporation in the time of Edward 6. and not before And then a Lease made in the time of H. 8. is not made by them nor by their Predecessors and so the Covenant doth not extend to that as it appeares by 8. Ed. 4. in case of prescription if Corporation be changed in manner and forme and the substance of their name remaine yet they ought to make speciall prescription then a fortiori in this case where the substance is changed and so he concluded and praied Judgement for the Defendants Nichols Serjeant for the first argued that the Livrey was well made for these Defendants shall be intended Occupiers and to have the profits of the Land till the Lessee entred or they waved the possession and so no prejudice and the Lessee shall not be charged with Rent till he enters or the Lessor wave the posaession as it was resolved in Bracebridges Case Com. 423. b. and in the Deane and Chapter of Canterburies Case there cited And for that the Livery shall be good and the Lessor not prejudiced by the deferring of it and then to the second that is the Covenant he agreed that if the Estate be created and Covenant in Law annexed to it if the Estate cease the Covenant also shall cease But if expresse Covenant be annexed then the Covenantor ought to have regard to performe it or otherwise an Action of Covenant lies against him notwithstanding that the Estate be avoided But here he intends it against him notwithstanding that the Estate be void But here he intends the Estate continues till Thimblethorp entred But admitting that he had entred yet the covenant shall bind the Covenantor as in 12. H. 4. 5. a. Parson makes a Lease for yeares and after is removed an Action of covenant lies against him and 47. Ed. 3. and 3. Ed. 3. If Tenant in 〈…〉 makes a Lease with expresse covenant and dies and the Issue outs the Lessee the Lessee shall have an Action of Covenant against the Executors of the Tenant in tayl and 9. Eliz. Dyer 257. 13. Tenant for life the Remainder over in Fee by Indenture makes a Lease without any expresse covenant and dies Lessee cannot have an Action of covenant against his Executors otherwise if there had been an expresse covenant See the booke and many Authorities there cited to this purpose and also he cited one Rawlinsons Case to be here adjudged that if a man which hath nothing in land makes a Lease and an expresse covenant for the injoying of that if he which hath right enters by which the covenant is broken Action of covenant lies upon the expresse covenant So that admitting that the Lease is void yet the covenant is good and shall bind the successors and so he concluded and praied Judgement for the Plaintiff and this case was argued at another day by Dodridge the Kings Serjeant by speciall appointment of the Judges and now he supposed that the Count containes that the same Dean Chapter which made the lease to Twaits in 37 H. 8. also made the Lease to Thimblethorp in the 18 El. w ch cannot be insomuch that the corporation was changed in the time of E. 6. for that cannot be the same Deane and Chapter for if a Prior Covent be translated into a Dean and Chapter and the Dean and Chapter will make prescription they ought to make that in speciall manner and not generally as Deane and Chapter as it is resolved 39. H. 6. 14. 15. and in 7. Ed. 4. 32. In Trespasse against the Abbot of Bermondsey it is
H. 8. makes Leases being in the hands of Spirituall persons void this avoids these Covenants also which depend upon the Lease So if a Parson make a Lease and Covenant that he will not be non-resident and binds himselfe for the performance of that if the Covenants be released the Obligation also is released So if the Lease be avoyded the Covenants also are avoyded And as an action of Covenant doth not lye for the not injoying of Land after a surrender so Covenant doth not lye after the estate is avoyded see 4 H. 7. And to the case put by Wynch of counter-bond where the Principall was void by the staiute of Usury he said that there the Obligation was not void but voidable by plea. But here it is the estate is made void by the express words of the statute and he intended that this difference between expresse Covenant and Covenant in Law but that the one determines with the estate as well as the other and yet he agreed that express Covenant shall extend to charge the Covenanter upon Entry by a stranger which hath no title but yet this doth not charge the Lessor after the estate determined and so he concluded that Judgment ought to be given for the Plaintiff Coke cheif Justice accorded with Wynch that Judgment shall be given for the Plaintiff And he supposed that the livery was well executed by the Attorney after the 3 Rent dayes incurred and yet he agreed that it had been a probable objection made against that But he supposed that the Lessor was not prejudiced insomuch that the Law intends that they had the possession and the profits of the Land till livery made and the Attorney is only as a servant to the Lessor And he said that this is not like to Cromwels and Andrews Case of grant of a Mannor upon Condition to re-grant Advowson or Rent in which cases the Advowson or Rent ought to be re-granted before that the Church becommeth void or the Rent day be incurred insomuch that they are followers of the thing granted notwithstanding that the Feoffee hath time during his life to make the re-grant if it be not hastned upon Request 2. He supposed that the express Covenant shall bind the Lessor though it be referred to the tearm for tearm includes Estate and Interest but this is when it is Tearm but when it is no Estate then it shall be intended during the continuance of the years as it appears by the Rector of Chedingtons Case and this he held clear and so of promise also as if a man makes a Lease for years and before that the Lessee enters makes a lease to another and promises that the second Lessee shall enjoy during the tearm if the first Lessee enter the second Lessee may have an action upon the promise and he said that it was adjudged in the Kings Bench Hill 35 Eliz. between Foster and Wilson Plaintiffs and Mayes Defendant where the case was A man made a Lease of a Rectory for years and covenanted with the Lessee to save him harmlesse against one Blunt Parson of Dole which entered and outed the Lessee which brought Covenant against the Lessor and resolved that it lyes notwithstanding that it doth not appear whether he had Interest or no So that be the Lease good or void yet when there is an Eviction Covenant lyes though the Lease be originally void yet till it be avoided it shall be intended a good Lease And if a Covenant of Dean and Chapter doe not bind them none will take Lease of them so they shall be compellable to plow the Land themselves and also he supposed that the Lease was good against the succeeding Dean and Chapter till it be avoyded by Entry as it was adjudged Trin. 30 Eliz. between Elmer and Page where a Bishop made a Lease for years and dyes the Successor makes a Lease for 3 lives the Lease for years not determined And it was resolved that the Lease for 3 lives was void notwithstanding that the Bishop might make a concurrant Lease for years which is not made void by the Statute of 1 Eliz. insomuch that the Statute is in the definitive that is Leases for 3 lives or 21 years and so they cannot make both for then the Lessee for life should have the Rent reserved upon the Lease for years which is setled in the Lessee for 3 lives by the regress of the Lessee for years and so he said also notwithstanding that the statute of 18 Eliz. made void all Leases made by Deane and Chapters where there are more then 3 years in being he agreed that a Lease for years where there are so many years in being is good but if there be but two years in being that makes the Lease for life void And he agreed that notwithstanding the statute yet any Lease shall be good against the Deane himselfe insomuch that he is party to that and hath a negative voyce in the making of that And he seemed that the Proviso in the statute of 18 Eliz did not extend to Leases in possession but to Leases in reversion which are dormant of which a stranger cannot take notice insomuch that they are invisible and for that if a Dean and Chapter procure surrenders of them and within 3 years that shall make another Lease good and so they shall save their Covenant and for that the Lease here made to the Plaintiff had been good if the Defendants had procured the Lease made to Thimblethorp to be surrendred within 3 years after the taking of that Also he cyted the Case betwixt the Bishop of Lychfield and Coventry and Sale to be adjudged Michaelmass 32. and 33. Eliz. That a grant of the next avoydance is good against a Bishop himself that granted it and not made void by the Statute of 1 Eliz. as to him but to all Successors only And so in this case he said they all agreed that the Lease was not void which is made to Waters against the Deane himself which made it but only against the Successor And he said also Covenant in Law extends to lawfull Evictions and to estates in being and not where an estate is determined as if Lessee for life makes a Lease for years and dyes the Lessee shall not have an action of Covenant upon Covenant in Law as it is agreed in 9 Eliz. Dyer and 38 H. 6. before cyted So also he supposed to express reall Covenants which extends to Free-hold or Inheritance as Warrant and Defend upon which a man cannot have an action if he be not outed by one which hath title and as in 3 Edw. 3. 7. and 21. A man makes a Feoffment with warranty nonfeoffavit is a good Plea for if the Feoffment be avoided the Warranty also is avoided for that depends upon the Feoffment But if a man makes a Lease for years and covenants that he will warrant and defend the Land to the Lessee if the Lessee be outed by one which hath title or
and before the originall purchased the Indentnre was by the assent of the Plaintiff and the Defendant cancelled and avoyded and so demands Judgment if action and it seemes by Coke cleerly that the Plea is not good without averment that no Covenant was broken before the cancelling of the Indenture Pasch 12. Jacobi 1612. In the Common Bench. Barde against Stubbing IT was moved in arrest of Judgment that the Venire facias wants these words Et habeas ibidim nemina Juratorum but the words Venire facias duodecim c. were incerted and it seems by all the Justices that it was good and that the first words are supplyed in the last and they are aided by the statutes of Jeofai es after verdict and so it was adjourned In Audita querela sued by the sureties upon an escape made by the principall they being in execution offered to bring the Money into the Court or to put in sufficient Sureties to the Court and so prayed that they might be bayled and it was agreed that if Audita querela be grounded by specialty or other matter in writing or upon matter of Record Supersedeas shall be granted before that the party be in Execution and if he be in execution he shall be bayled but if it be founded upon a matter in Deed which is only surmise he shall not have Supersedeas in one case nor shall be bayled in the other case and so was the Opinion of all the Justices In an Action of Waste for digging of earth to make Brick Estrepement was awarded and upon Affidavit that the Writ of Estrement was delivered to the Sheriff and that he gave notice of that to the party and he notwithstanding that continues to make waste attachment was awarded Pasch 12 Iacobi 1612. In the Common Bench. Fetherstones Case Trinity 1612. IN Ejectione firme The Plaintiff had Judgment and an Habere facias possessionem to the Sheriff of Coventry which returnes that he had offered possession to the Plaintiff and he refused to accept it and it seems that the Plaintiff cannot have Habere facias possessionem insomuch that it appeares by the Record that he hath refused to have the possession The case was A Dean and Chapter being Lord of a Maunor parcell of the Demesnes of the Mannor being severall adjoyned to the Common which was parcell of the wast of the Mannor and one Copy-holder which had Common in the sayd Wast puts his Beasts into the sayd waste to take his Common and they for default of inclosure escape into the sayd Demesnes by which the Lord brings his action of Trespass and upon this the Defendant pleads the speciall matter and that the Lord and all those whose Estate he had in the said place where the trespass is supposed to be made have used to fence the said place which is parcell of the Demesnes of the sayd Mannor against the Commoners which have Common in the sayd Common being parcell of the waste and also of the demesnes of the sayd Mannor and that the Beasts of the sayd Defendant escaped into the sayd place in which c for default of inclosure and so demands Judgment upon which the Plaintiff demurrs in Law In the agreement of which it was agreed by Hutton and Haughton the Serjeants which argued it whether a man by prescription is bound to make fence against Commoners as it is agreed in the 22 H. 6. 7. 8. 21 H. 6. 33. But the doubt which was made in this case by Haughton which demurred was for that that the Lord which by the prescription ought to inclose is owner of the soyle also against which he ought to inclose and so he ought to inclose against himself and for that he supposed that the pleading should have been that there is such a custome there and of time out of minde that the Lord shall inclose against the Common insomuch that by that the Copy-holder would bind the Lord and upon that it was adjourned c. Pasch 12 Jacobi 1612. In the Common Bench. Sir Henry Rowles against Sir Robert Osborne and Margeret his Wife IN Warrantia Charte the case was Sir Robert Osborne and his Wife levyed a Fine of the Mannor of Kelmersh with other Lands in Kelmersh to Sir Henry Rowles against all persons and this is declared for the Lands in Relmersh to be to the use of Sir Henry Rowles for life with diverse Remainders over and for the Mannor no use was pleaded to be declared at all and then a Writ of Entry in the Post was sued against the sayd Sir Henry Rowles which vouched Sir Robert Osborne and his sayd wifeâ— and this was declared for the sayd Lands to be to the use of the sayd Sir Henry Rowles for his life with other Remainders over which were declared upon the Fine of the Lands in Kelmersh only and of the Mannor of Kelmersh no uses were declared upon the Recovery also and upon this Recovery pleaded in barr the Plaintiffe demurred and it was argued by Dodridge Serjeant of the King for the Plaintiffe that the Plea in Barr was not good insomuch that it doth not appeare that the warranty which was executed by the Recovery was the same warranty which was created by the Fine and also the Fine was taken for assurance against the Issue in tayle and the Recovery to Barr the remainders and so one shall not destroy the other and for the first he sayd that a man may have of another severall warranties and severall causes of Voucher and all shall be together for warranty is but Covenant reall and as well as a man may have severall Covenants for personall things as well he may have severall reall Covenants for one self same Land as if the Father infeoff one with warranty and the Sonn also releases to the same Feoffee with warranty or if the Father infeoff one with warranty against him and his Heires and the Sonn release with warranty against all men the Feoffee may vouch one and Rebut against the other so of Warranty of Tenant in tayle and release of an Ancestor collaterall with warranty in Law and expresse warranty as it is agreed in 31 Ed. 1. Fitzh Voucher 289. And upon that he concluded that a man may have severall warranties of one selfe same man and the one may be executed and the other remaine notwithstanding that it be for one selfe same Land and he supposed the effect of these warranties are as they are used for if that may vouch generally and bind himselfe upon the Fine or upon his owne warranty or upon the warranty of his Ancestor notwithstanding that the voucher be generally as it is 31. Ed. 3. Warranty of Charters 22. So if he be vouched as Heire though that it were speciall but if he be Heire within age otherwise it is for that is a good Counter Plea that he was within age and so praied that the word might demur during his nonage 17.
But here the thing which makes the execution is only release which enures as Release And for that the accepting of the release it cannot be execution of a Legacy But if the Executor to whom the first Devise was made had had any Co-executor and he would not have suffered him to joyn in occupation with him that had been full Declaration of his Intent that he took it as a Devise and not as an Executor as it is agreed in the 10 El. 277. Dyer 50. And he said also that it hath been agreed to him that it is such a possibility that cannot be granted as it is agreed in Fulwoods case 4 Coke 66. b. And he said it is not like to Harveys Bartons case where two Joynt-tenants for life were and one made a Lease for years to begin after his death and dyed and his companion survived him and agreed to be a good Lease against the Survivor notwithstanding the Contingency And he conceived that this might be released and that it is not like to contingent actions insomuch that it is a release of right in Lands see 5 H. 7. 31. b. Colts Assise where it is said if Lord Mesne and Tenant are and the Mesne is forejudged by the Tenant and after the Lord releases to the Tenant and after by Parliament it is enacted that the fore-judger shall be void yet the release shall be good against the Lord and so of actions by Executor before Probate and 14 Ed. 3. Barr Release of Dower by Fyne doth extingush it and Althams case 8 Coke if it be made to the Tenant of the Land that shall be a Barr. And 21 H. 7. fol. the last Release to a Patron in time of Vacation shall be a Barr in annuity brought against the Incumbent and if the Lessee for years be outed and the Disseisor makes a Lease for years to a stranger and the first Lessee release to them both this is good as it is 9 H. 6. and yet regularly such release is not good without privity But insomuch that it is of right to the Land and to one which hath possession it is very good So Release by Copy-holder extincts his Copy-hold right as it is resolved 4 Coke amongst the Copy-hold cases and yet hee agreed that some possibilities cannot be released as in Albayns case power of Revocation if it be not to the Tenant of the Land insomuch that this is a meer possibility So if an annuity depend upon a condition precedent but where the returning of the estate is to the party himselfe as in Diggs case 1 Coke 174. a. And also the release in this case is the more strong insomuch that the estate in this is recited as in the case of 44 Ed. 3. in release of Ayde And so he concluded that admitting there be no election and execution of the Legacy by the acceptance of the Release then the title of the Defendant is good and if it be a good election execution Yet he conceived that all the tearm remains in the first Devisee and that the remainder is destroyed by the release and so prayed Judgment for the Defendant and so it was adjourued Pasche 1612. 10. Jacobi In the Common Bench. Manley against Jennings IN Debt upon an Obligation with Condition to performe observe fulfil and keep all Covenants Grants Articles Payments contained in a Lease c. The Lessee doth not pay the Rent at the day and the Plaintiff without making of any request begins a Suit upon the Obligation and upon this matter pleaded in Barr the Plaintiff replyed that he was not demanded and upon this the Defendant demurred And Harris Serjeant for the Defendant argued that when any penalty is annexed to a payment of the Rent be that annexed to the estate or otherwise yet it ought to be requested and without request to pay it no penalty shaâ—l be incurred as in 22 H. 8. 57. a. b. by Newton Ashton and Port where a difference is taken between an Obligation taken for payment of Rent generally without any relation to a Lease and where it is only for performance of Covenants and Issue taken upon the request and after demurrer joyned and the question if the Lessee ought to tender it 14 Edw. 4. 4. accordingly And in 21 Edw. 4. 6. a. b. Pigott and Bryan agreed that there shall be no penalty nor Obligation forfeited without request where the Obligation is for performance of Covenants and not precisely for the payment of Rent and so he concluded and prayed Judgment for the Defendant Nichols Serjeant for the Plaintiff conceived that the Lessee ought to make tender upon the Land to save the penalty and this shall be sufficient and the Lessor need not to make request and this is the Obligation for performance of Covenants for this doth not alter the nature of the Rent but if it be for payment of Rent precisely there the Lessee ought to seek the Lessor or otherwise for not payment he shall forfeit his Obligation for there tender upon the Land shall not excuse him And for that if a man makes a Lease for years rendring Rent at Michaelmass with nomine poene if it be not payed within 10 dayes after Michaelmass and within the 10. dayes and these differences appear and are agreed in 22 H. 6. 57. and 6 Edw. 6. Brooke tender 20. And he conceived that the Books of 14 Ed. 4. 4. 20. Ed. 4. 6. and 11 Ed. 4. 10. depends upon these differences that is that a man shall not distrain for Rent charge without Request insomuch that it is as a Debt which is due upon Request and admit that the case were that a man made a Lease for yeares the Lessee covenants to pay the Rent at the day with a nomine pene in default of payment of that and after the Lessee assignes his Interest to one which Covenants to pay the Rent and performe all the Covenants in the Lease he demanded in this case who shall make the request that is the first Lessor or the Lessee insomuch that it is penall to the Assignee of them both and so many Suits may arise upon that and also he sayd that it was ruled here upon a motion in arrest of Judgment that in Debt upon an Obligation to performe Covenants there need not to be alledged demand upon Solvit or non Solvit put in Issue for it may be pleaded that it was tendered or payd and so he sayd it is confessed by the Demurrer that the Obligation is forfeited and for that he prayed Judgment for the Plaintiff Coke cited Myles and Dragles Case where a man was bound for performance of a Will he need not to pay Legacy devised by that for which is no day assigned without request so if the Obligation be for payment of Legacy expresly and no day assigned and so it was adjourned Trinity 1612. 10. Jacobi in the Common Bench. Gravesend Case IN Debt the case was this that is the
appears by 9 Edw. 4. 33. 37 H. 6. 32 H. 6. 1. Ed. 4. 2. 50. Ed. 3. And he conceived that the burying is not any Administration nor the taking of the goods into his custody to preserve them no more then in Trover and Conversion when a man takes the goods for to preserve them And he agreed that where a man intitles himselfe to goods by Administration committed by any but by the Bishop he ought to pleade specially that he which committed it had power to doe it But here it is not so but only conveiance and for that need not here such precise pleading of that insomuch it is only execution of Administration and for that it is good without intitleing the Arch-Deacon And he agreed that an Executor of his owne wrong may pay Debts due to another and shall be discharged And he agreed also that the Confession of one Executor shall bind his Companion and that Judgement shall be given upon that for the Plaintiff And they all agreed that the pleading that the Defendant hath no goods besides the goods which do not amount c. it was not good and for these causes they all agreed that Judgement ought to be given to the Plaintiff Trinity 10. Jacobi in the Common Bench. Tyrer against Littleton 9. Jacobi Rot. 299. IN Trespasse for taking of a Cow c. Upon not guilty pleaded by the Defendant the Jury gives speciall Verdict as it followes that is that the Husband of the Plaintiff was seised of eighty Acres of Land held of the Defendant by Harriot service that is the best Beasts of every Tenant which died seised that he had at the time of his death and that the Husband of the said Defendant long time before his death made a Feoffment of that Land in consideration of marriage and advancement of his Son to the use of his Son and his Heires with such agreement that the Son should redemise to his Father for forty yeares if he so long lived and that after the marriage was had and the Son redemised the Land to his Father and the Father injoyed that accordingly and paied the Rent to the Lord and after died and that the Plaintiff had no notice of his Feoffment and that the Husband at the time of his death was possessed of the said Cow and that the Defendant took it as the best Beast in name of Harriot and also found the Statute of 13. Eliz. of fraudulent conveiances to deceive Creditors and so praied the direction of the Court and this was agreed by the Plaintiff aforesaid Nicholls Serjeant first that all conveiances made upon good consideration and Bona Fide are by speciall Proviso exempted out of the Statute of 13. Eliz. chap. And he conceived that this is made upon good consideration and Bona Fide and for that it is within the said Proviso and also he said that as upon the Statute of Marlebridge there is fraud apparent and fraud averrable as it appeares 12. H. 4. 16. b. Where in ward the Tenant pleads that his Father levied a Fine to a stranger the Lord replies that this was by Collusion to re-enfeoff the Heire of the Tenant at his full age and so averred that to be by Collusion to out the Lord of his Ward and this is fraud averrable But if the Tenant had enfeoffed his Tenant immediately in Fee-simple this is apparent without any averment and the Court may adjudge upon it And so upon the Statute of 27. Eliz. chap. 4. it appears by Burrells Case that the Fraud ought to be proved in Evidence or confessed in pleading or otherwise this shall not avoid conveiance for it shall not be intended 6 Coke 78. a. and see 33. H. 6. 14. b. Andrew Woodcocks case upon which he inferred that this is but a fraud averrable if it be a fraud at all and of this the Court could not take notice if it be not found by the Jury and he said upon the Statute of 32 H. 8. Of Devisees as it appeares by Knights Case 8 Coke and 12. Eliz. Dyer 295. 8 9 10 10 11 12 13 14 15 16 17. And so he concluded and praied Judgement for the Plaintiff Harris Serjeant for the Defendant argued that the Circumstances which are found in the speciall Verdict are sufficient to satisfie the Court that it is fraud for as well as the Court may give direction to the Jury upon Evidence that it is fraud and what not as well may the Court Judge upon the special matter being found by special Verdict at large as in 9 El. Dyer 267. and 268. that is the special matter being found by special verdict at large as in 9 El. Dyer 267. 268. that is the speciall matter is found by Inquisition upon Mandamus and leave to the Court to adjudge if it be fraud or not and in 12 El. 294. and 295. 8. the speciall matter was found by Jury upon Eligit directed to the Sheriffe and by him returned to the Court And in Trinity 27. Eliz. between Saper and Jakes in Trover the Defendant pleades not guilty and gives in Evidence as assignement of a Tearme to him with power of revocation And the Court directed the Jury that this was fraudulent within the Statute of 27. Eliz. to defraud a purchasor and in Burrells Case 6. Coke 73. a. before the fraud to the Court upon Evidence to the Jury and the Court gave direction to the Jury that it was fraud and that upon the Circumstances which appeares upon the speciall Evidence And so in this case he conceived that insomuch the circumstances appear by the Verdict that the Jury may very well adjudge upon it and so he concluded and praied Judgement for the Defendant Coke cheife Justice that the Statute of 13. Eliz. Doth not aid the Defendant insomuch that the Feoffment was made for good consideration and for that shall be within the said Proviso for if that shall be avoided at all that shall be avoided by the Statute of Marlebridge which is ouly affirmance of the Common Law and this is the reason that not withstanding the Statute speakes only of Feoffment by the Father to his Son and Heire apparent yet a Feoffment to a Cosin which is Heire apparent is taken to be within the Statute and in the 24. of Eliz. in Sir Hamond Stranges Case It was adjudged that if the Son and Heire apparent in the life time of his Father purchase a Mannor of his Father for good consideration this is out of the Statute and so it was adjudged in Porredges Case also he said that the Law is an Enemie to fraud and will not intend it being a conveiance made for consideration of a marriage to be fraudulent no more then if the Father had made a Feoffment to the use of a stranger for life the remainder in Fee to his Son and Heire the which is not within the Statute of Marlebridge as it is agreed in Andrew Woodcocks Case 33.
name So by Custome as the Custome that if a Copy-holder will sell his Copy-hold Estate that he which is next of blood to him shall have the refusall and if none of his blood then he which Inhabits in the neerest part of the part of the ground shall have it before a stranger giving for that as much as a stranger would and the Lord shall have him for his Tenant whether he will or no for it shall be intended that so it was agreed at the first and it is reasonable and if it had not been ruled and adjudged before yet he conceived it might now be a rule and adjudged insomuch that it is so reasonable and good and for the second custome that is for the custome of cutting of Trees by such Copy-holder which hath such priviledge he conceived also that it was good But he agreed that a bare Tenant for life cannot be warranted by custome to do such an Act as it was here adjudged between Powell and Peacock But here he had a greater Estate then for life for he hath power to make another Estate for life and shall have as great priviledge as Tenant after possibility c. which is in respect of Inheritance which once was in him and he may do it for the possibility which he hath to give to another Estate as it is agreed in 2. Ed. 4. that a Lease fo a hundred yeares is Mortmain in respect of the continuance of it so here for the Estate may continue by such power of nomination for many lives in perpetuity and that as when at the Common Law they have in reputation and opinion of Law a greater Estate may cut and sell Trees so here insomuch that the Estate comes so neere to Inheritance he conceived that he might cut the Trees by the custome and that the Custome is good and so he concluded that Judgement should be given that the Plaintiff should be barred in respect of Customes and then to the third that is when a man lets Land and by the same Deed grants the Trees to be cut at the will and pleasure of the grantee there the Lessee hath distinct Interest But if the Lessor by one selfe same clause had demised the Land and the Trees there the Intendment is But notwithstanding that there are severall clauses and that he hath distinct Interests yet he conceiveth that the Trees remaine parcell of the Inheritance and free-hold till they are cut and are severed only in Interest that is that may be felled and devided by the Axe for Tythes shall not be paid for them if they exceed the growth of twenty yeares not it shall not be Felony for to cut those and burn them And it is not like to an Advowson for that may be severed and for that he conceived that if the Custome had not warranted the Cutting and Selling that the Copy-holder had forfeited his Estate and that the Lord might very well have taken advantage of it and 29. assis 29. A man sells Trees to be cut at Michaelmasse insuing and before Michaelmasse Haukes breed in them the seller shall have them by which it appeares that the property is not altered So that though they are not parcell of the Mannor yet they are parcell of the Free-hold insomuch that they are not severed in Facto And he agreed that Lessee for yeares of a Mannor shall take advantage of Forfeiture and need not any presentment by the Homage and Littleton fol. 15 saith that the Lord may enter as in a thing Forfeited unto him and so for attainder of Felony And if a Copy-holder makes a Lease for yeares by which he forfeits his Copy-hold Estate And after the Lord grants the Mannor for yeares the Lessee of the Mannor shal take advantage of this Forfeiture made before he had any Estate in the Mannor without any presentment by the Homage But here in this case the Custome warrants the cutting of the Trees by the Copy-holder and for that he concluded all the matter as above that the Plaintiff should take nothing by his Writ Coke cheife Justice agreed and he said that Fortescue and Littleton and all others agreed that the Common Law consists of three parts First Common Law Secondly Statute Law which corrects abridges and exp'aines the Common Law The third Custome which takes away the Common Law But the Common Law Corrects Allows and Disallows both Statute Law and Custome for if there be repugnancy in Statute or unreasonablenesse in Custome the Common Law Disallowes and rejects it as it appeares by Doctor Bonhams Case and 8 Coke 27. H. 6 Annuity And he conceived that there are five differences between Prescription and a Custome And all those as pertenent to this cause First in the beginning Pugnant ex Diametro for nothing may be good by prescription but that which may have beginning by grant and also prescription is incident to the Person and Custome to some place and holds place in many Cases which cannot be by grant as in 11 H. 4. Lands may be devised by Custome and so discent to all the Sons as in Gavelkind and to the youngest Son in Eurrough English and others like which cannot have their beginning by Grant but prescription and Custome are Brothers and ought to have the same age and reason ought to be the Father and Congruence the Mother and use the Nurse and time out of memory to Fortifie them both Secondly they vary in quality for prescription is for one man only and Custome is for many if all but one be not dead Thirdly they vary in extent and latitude for prescription extends to Fee-simple only but Custome extends to all Interests and Estates whatsoever as appeares by pleading for Tenant in tayl for life or yeares cannot prescribe in what Estate nor against the Lord in his Demesnes but they ought to alledge the Custome and against a stranger they ought to prescribe in the name of the Lord and for that prescription b. Copy-holder of Inheritance may sell the Trees is not good but such Custome is good and 5. Ed. 3. 24. And the old Reports 196. One Tenant being a Free-holder prescribes to have Windfalls and all Trees-which are withered in the Top and if the Lord makes them in Cole to have so much in money And so if they sell and this for Sale and this was not-good insomuch that it is alledged in the person as prescription but if it had been alledged as Custome and to be burnt in his house then it shall be good as appendant and 14. Ed. 3. Barr 227. Wilby saith to be adjudged that prescription to have Turbary to be burnt in his house is good but not to sell and 11. H. 6. 17. accordingly by which it appeares that this may be very well by Custome and cannot be by prescription Thirdly he conceived that where a man may create an Estate without nomination there he may create that by nomination And also that which may be done by the
awarded good because it comes in Lieu of Goods which they had as Executors and shall be Assets in their hands as the Goods should have been and for that it is well brought in the Detinet only And they said that in the principall case it shall be mischeivous if the Action shall be brought in the Debet and Detinet for it may be the Rent reserved is of more worth then the Profits of the Land will amount unto and that the Executors or Administrators have no other Assets now shall be the Executor or Administrator be charged with his own proper Goods which shall be mischeivous and the case of 10. H. 7. 5. and 6. that is direct in the point was often times cited and all these three things which were of councell with the Defendant informed the Court that they were of Councell with Hargrave when the Judgement given in the Kings Bench was reversed for Error in this very point and for this cause because the Action was brought in the Debet and Detinet where it should be in the Detinet only And so they praied that the Judgement should be hindered But by the whole Court except Yelverton And so it was adjudged that the Action was well brought as it is and especially for the reasons given in Hargraves Case 5. Coke 31. And to that which hath been said by Yelverton Justice that in all cases where Executors are charged by the name of Executors or Administrators that there the Action shall be against them in the Detinet only Flemming cheife Justice answered that â—rue it is in all personall things where they are named as Executors Action shall be in the Detinet But as it is an Action of Debt for Rent reserved upon a Chattell reall and an Executor is as an Assignee in Law and so charged as privy in Estate and not meerely as Executor and if he have no more Assets then the Rent which he is to pay he may plead nothing in his hands against all the World and to that that hath been said that the Executor hath been charged of his own Goods If the profits be not more then the Rent or the Rent more then the profits to this he said that in this case where the Executor hath the Tearme and hath not any other Assets that they may wave this Tearme And in Action of Debt brought against him for the Rent may plead to the occupation and that recover The reason of the diversity between this case and the case of 28. H. 8. Dyer 14. is plain for in an Action of Debt against the Termor himselfe Non habuit nec occupavit is no Plea for there was a contract between them and for this privity of contract is the Lessee charged though he did not occupy But in the case of an Executor the privity of the contract is gone and so may be a difference But yet it seemes if he have Assets sufficient to pay the Rent he cannot wave it And to the case 14. H. 4. 28. that hath been cited that doth speake nothing how the Action should be brought And the Justices have seen the record of Hargraves case and the Reversall of that And they said the same error which was in Hargraves case is in this case and for that bring your Writ of Error in the Exchequer chamber if you will for we so adjudge And then it was moved that the Lord Rich was Tenant in Tayle of part of the reversion and Tenant in Fee-simple of the other part and so it seemes that he ought to have two Actions because he hath as two reversions But it was resolved by all the Court that if a man have a reversion of part in Fee-simple and of the other part in tayl and makes a Lease for yeares rendring a Rent he shall have but one Action both being in the hands of one But otherwise it had been if the reversion had been in severall hands they should not Joyne in Debt and for that Fenner put this case two Coparceners are of a reversion and they make partition now the Rent is apportioned and they shall sever in Debt But if one dies without Issue and the part discends to the other Parcener now he shall have but one Action of Debt againe and so it is if a man makes a Lease of two Acres rendring Rent and after grants the reversion of one Acre to J. S. and of the other Acre to J. N. now they shall sever in Debt for this Rent but if J. S. and J. N. Grant their reversions againe to the first Lessor he shall have but one Action of Debt and so the exception dissalowed by all the Court and the Judgement given for the Plaintiff according to the Verdict Yates and Rolles THe case was this J. S. covenants by Indenture with J. N. I. D. and A. B. to enter Bond to pay ten pound to J. N. and J. N. dies and his Administrator brings a Writ of covenant and the question was insomuch that this ten pound was to be paid to J. N. if his Administrator shall have Action of Covenant or if the Action shall survive to the other two and it was moved by Stephens that the Action shall be well brought by the Administrator for this shall be taken as a severall covenant and this now is in nature of a Debt and enures only to him which shall have it also the payment of the money which is the effect of the covenant shall be to him only Ergo the Damages for the not performing of it shall goe to him also and by consequence to his Administrator But it was adjudged insomuch that this was a joynt covenant that this shall survive to the others and not well brought by the Administrator So also resolved that insomuch that the words are that he would enter Bond and doth not say to whom that this shall be intended to the Covenantees and though that the Solvendo is but to one of them yet that is very good as an Obligation made to three Solvendum to one of them is good by Fenner and by Williams Obligation to two Solvendum ten pound to one and ten pound to another both ought to joyne in Debt upon this Obligation and Judgement for the Defendant Sammer and Force THe Case was this The Lord of a Copy-hold Mannor where Copy holders are for life grants Rent-charge out of all the Mannor one Copy-hold Escheats the Lord grants that againe by Copy the question was If the Grantee shall hold it charged or not and by the whole Court but Fenner he shall not hold it charged because he comes in above the Grant that is By the custome the same Law of Statutes Recognizances or Dowers but the 10. of Eliz. Dyer 270. by the whole Court that he shall hold it charged but this hath been denyed for Law in a Case in the Common Bench between Swaine and Becket which see Trinity 5. Jacobi But to Coke Justice it seemed that
if a Copy-holder be of twenty Acres and the Lord grants Rent out of those twenty Acres in the tenure and occupation of the sayd Copy-holder and name him There if this Copy hold Escheat and be granted againe the Copy-holder shall hold it charged for this is now charged by expresse words Trinity 8. Jacobi 1610. In the Kings Bench. Goodyer and Ince GOodyer was Plaintiff in a Writ of Error against Ince and the Case was this Ince brought an Action of Debt upon an Obligation in the Common Bench against Goodyer and had Judgment to recover and by his execution prayed an Elegit to the Sheriff of London and another to the Sheriff of Lancaster and his request was granted and entred upon the Roll after which went out an Elegit to the Sheriff of Lancaster upon a Testatum supposing that an Elegit issued out to the Sheriff of London which returned Nulla bona and Quod Testatum sit c. That the Defendant hath c. in your County c. upon which Elegit upon this Testatum the Sheriff of Lancaster extended a forme of the Defendants in a grosse sum of a hundred pounds and delivered this to the party himselfe which sold that to another and now the Defendants brought a Writ of Error and assigned for Error that this Elegit issued upon a Testatum where no Writ of Elegit was directed to the Sheriff of London and so this Writ issued upon a false supposall and upon that two points were moved in the Case First As this Case is if this were Error in the Execution or not Secondly Admit that it were Error if the Plaintiff shall be restored to the tearme againe or if to the value in Money and it was moved by Davenport of Grayes Inne that this was no Error and to that he took this difference That true it is when a man brings an Action of Debt in London and hath Judgment that without request of the Plaintiff he is to have his Elegit to the Sheriffs of London where originally the Action was brought and in such Case he cannot have Elegit to the Sheriff of another County without surmise made upon the returne of the first Elegit and the surmise ought to be true or otherwise it is Error but where upon the request the Elegit is granted to both Counties at the first and so entred upon the Roll It seems to him that insomuch that he may have both together that if the surmise be false that this is but a fault of the Clarke which shall be amended and shall be no Error and to that he cyted the Case of 44 Edw. 3. 10. Where an Elegit issued upon a Recognizance of a hundred Markes and the Writ of Extent was a hundred pounds and the Sheriff extended accordingly of the Land of the Defendant and he came and shewed this to the Court and praied that the Writ should abate and a new Writ to the Sheriff that he might have restitution of his Tearme and Thorp said this is but a misprison of the Clark and the Roll is good and he shall have the Land but till the hundred markes are Levied and after this you shall have restitution of the Land which case proves as he conceives that if the Roll warrant a writ in one manner and the Clark makes it in another manner that this shall not be Error and so in this case the Roll warrants an Elegit originally to the Sheriff of Lancaster and though that this is made upon a Testatum this shall not be Error because warranted by the Roll And to the second point he would not speake for if that were no Error the second point doth not come in question Hillary 7. Jacobi 1609. in the Kings Bench. Marsam against Hunter IN Trespasse the case was this Copy-holder of a Mannor within which Mannor the custome was that the Copy-holders should have Common in the wast of the Lord The Lord by Deed confirmes to a Copy-holder to have to him and his Heires with the appurtenances and the point was insomuch that his Copy-hold was now distroied whether he shall have his Common or not And Davyes of Linclones Inne argued the Common is extinct and his reason was that this Common was in respect of his Tenure and the Tenure is distroid Ergo the Common and he cited the case of 5 Ed. 4. fol. ult Where the office of the King of Herraulds was granted to Garter with the Fees and profits Ab Antiquo and also ten pound for the office and there it is resolved if the office be determined the Annuity is determined also and the case in 7. Ed. 4. 22. b. Where an Annuity was granted to John Clark of the Crown and for Tearme of life and after he was discharged of the office and the oppinion of the Justices then was that the annuity was determined and in 19. Ed. 3. Assis 83. 12 Assis 22. A man gives Land to his Daughter and I. S. within the years of marrying in frank-marriage the Husband sues Divorce the marriage being dissolved the Wife from whom the Land first moved shall have the Land againe so in the principall case insomuch that this common was in respect of Tenure the Tenure being distroied the common is gone and this was all his argument and he prayed Judgement for the Plaintiff and another day Brautingham of Grayes Inne seemed that the common remaines for three reasons First of the nature of a prescription and to that there are three manner of prescriptions First personall prescription and in that Inhabitants may prescribe as for a way or matter of ease as it is said in 7. Ed. 4. 15. Ed. 4. and 18. Ed. 4. and 6. Coke Gatwoods case Secondly reall prescription and this is Inherent to the Estate and this is where a man prescribeth that he and all those whose Estate he hath c. Thirdly locall prescriptions an that is where a man prescribes to have a thing appendant or appurtenant to his Mannor and this is so fixed to the Land that whether soever the Land goes the prescription is concommitant unto it and it seemes to him that this common is annexed to the Land by prescription and so locall and cannot be seperated but alwaies shall go with the Land into who soever hands that comes but Dixit non Probant And for this he supposed that the custome of Copy-hold is that the Copy-hold shall discend to the youngest Son if the Copy holder purchase the Free-hold and the Fee-simple of the Copy-hold so that this is made Free-hold this shall discend to the youngest Son so if a Copy-holder by custome is discharged of payment of Tythes in kind so the office of the master of the Rolles hath many liberties pertaining to it and this is granted but Durante placito yet if the King grant that in Fee as he may yet he shall have all the Fees and Priviledges annexed to that and so it seemes to him that
Michaell then it is cleer that the Lessor hath no remedy by way of distress for the Tearm is ended before and by Action of Debt upon the Contract he hath no remedy as it seems as this case is for the Contract is that the Rent shall be paid yearly during the Tearm then when the Tearm is ended the contract is determined and for that the cheife Justice sayd That if a man makes a Lease at Michaelmas for a yeare rendring Rent yearely at our Lady day and the ninth of October which is after Michaelmas that the Lessor hath not any remedy for the Rent of the last halfe yeare for that is not reserved to be payd yearly according to the contract And Yelverton Justice agreed that the Lessee hath election as above but he saith when that is behinde the tenth day after Michaelmas then the Lessor shall bring his Action of Debt and declare that the Rent was behinde at the Feast of Saint Michaell and shall not make mention of the ten dayes after and Coke Justice sayd That it seems to him that the Lessee shall not have the benefit of these ten dayes after the last Feast for the words of the Lease are rendring Rent yearly during the tearme at the Feasts aforesayd or ten dayes after so that the Lessee shall have the benefit of these ten dayes during the tearme but not after then he shall not have these after the last Feast of Saint Michaell for then shall the tearme be ended And after in Trinity Terme 8 Jacobi The Case was moved againe and then Flemming cheife Justice conceived That the Lessee shall not have ten dayes after the last Feast and this upon construction to be made reasonably for otherwise the Tearm being ended the Contract should be determined with the Tearm and so the Lessor should be without remedy for his Rent and he sayd that reservations are not taken so strictly according to the letter And for that he cited the case of Hill and Granger in the Com. fol. 171. Where a man makes a Lease for a year And the Lease was made in August rendring Rent yearely at the Annunciation of our â—ady and Michaelmasse upon condition of Re-entry In this case the first payment shall be at the next Michaelmasse after the making of the Lease and not at the Annunciation of our Lady though this is first in words and this by reasonable construction for otherwise this word Yearely shall not be supplied and of this see the Action and so he said in this case Rent is reserved yearely during the Tearme at the Feasts of the Annunciation of our Lady or Michaelmasse or ten daies after he shall not have ten daies after the last Feast But Williams held his old opinion that the Lessor hath no remedy for the last halfe years Rent and it was adjourned Hillary 7. Jacobi in the Kings Bench. Grymes against Peacocke IN Terspasse for his Close broken The Defendant justifies that it was used within the Mannor of D. that every Farmer of such a house and averred that that had been allwaies let to Farme had Common in the Lords wast The house came into the hands of the Lord in Possession And he granted the house and the wast to J. S. in Fee J. S. Bargaines and Sells the house to J. N. with all Commons Profits and Commodities used occupied and pertaining to the same And after grants the wast to another If the Grantee of the house shall have Common in the wast was the question And Yelverton argued that the Common was gone for if he shall have Common this shall enure as a new Grant of a Common but this cannot so enure for two reasons First when a man will grant a Common he ought to shew the place in certaine where the Grantee shall have this Common or otherwise the Grant is void But here no place is shewed and for that it cannot enure as a new Grant of a Common Secondly If that be a new Grant yet this hath reference to the usage that is Quod Vsitatum est c. And this Vsitatum is void for it seemes to him that Lessee for yeares cannot alledge a usage for every Vsitatum ought to go in one selfe same currant not interrupted as in ths case of a Coppy-hold But here every new Lease is a new contract and so the usage is interrupted and then the Grant having the reference to the usage and that is void usage nothing shall passe by this Grant and for that in Long 5. Ed 4. 40. If a custome be against Law And that is confirmed by the Act of Parliament this is void confirmation for it hath reference to a void custome so here this Grant hath reference to the usage and for that it seemes to him that the Common is gone Hutton Serjeant to the contrary and that the Grantee of the Messuage shall have common for this usage is not a thing by strictnesse in Law appertaining to the Land but this hath gained his reputation that that shall passe very well in a conveiance by apt words And for that it will not be denied but if a man makes a Lease for years to one and grants him Common for all his Kine c. And after this Lease expires and he makes a new Lease and grants such Commons as the first Lessee had that this shall be a good grant of Common to the Lessee So he said in this case this grant of the house with all profits and commodities used occupied and appertaining to the said Messuage shall be said a grant of such Common which other Lessees of this Manner have used and this by reasonable construction in Law to make good the conveiances of Lay-men according to the common speaking for Benigne sunt Faciende Interpritationes Chartarum c. and for that he cited the case of Hill and Grange in the Comment Where the case was That a man made a Lease for yeares of a house and a hundred Acres of Land appertaining to that though the Land be not appurtenant to the house yet insomuch that this hath been usually occupied with the house this shall passe as appertaining to it and so 26. Assis 38. A man makes a Lease for life rendring Rent and after grants over the Rent to J. S. and dies The Heire grants and confirmes to the Grantee and his Heires the same Rent with clause of distresse and the Tenant for life dies now is the Rent reserved upon the Estate for life determined and yet this shall enure as a new grant of another Rent in quantity So in Sir Moyle Finches Case the case of uses and Durham in Ejectione Firme A Lease was pleaded of a Mannor whereof the feilds in which c. Were parcell And Issue was joyned Quod non Demiset Manerium And upon this Issue found it was that there were not any Free-holders but diverse Copy-holders and this was allwaies knowne by the name of a Mannor and it was adjudged that
this shall passe for him which pleads the demise of the Mannor Then if in Judiciall proceeding the Law makes such favourable construction to make that passe by a Mannor which is no Mannor in truth because it hath been usually known by the name of a Mannor then it seemes to him a Fortiore that no more beneficiall construction shall be made in conveiances which allwaies shall be construed to the intent and meaning of the parties and so it seemes to him that the Common remaines and Crooke Yelverton and the cheife Justice Flemming conceived that in reason he shall have the Common but they did not give any absolute opinion as to that But Williams Justice to the contrary and that the Lessee for yeares cannot have more then he contracted for in his Lease and then the Vsitatum void and the Lessees have taken that by wrong And this Grant having reference to a void and wrongfull usage is not good and it is adjourned Hillary 7. Jacobi 1609. In the Kings Bench. Stydson against Glasse Stydson brought an Ejectione Firme against Glasse and upon speciall Verdict the case was this that is That one Holbeame was seised of the Land in question in Fee and made a Lease for life to Margret Glasse and after covenanted with John Glasse Husband of the said Wife Lessee that before such a day he would Levie a Fine to A. B. and to the Heires of A. of the same Lands which Fine should be to the use of the said Glasse for sixty yeares to begin after the death of the said Margeret Glasse with Proviso within the same Indentures that if the said Holbeame at a certaine day should pay to the said John Glasse a hundred pounds that then the Lease should cease and then of that the Conusees should stand seised to the use of the said John for his naturall life and after the said Holbeame disseised the said Margeret Glasse the Lessee and made a Feoffment to the use of himselfe and one Alice with whom he intended to marry and to the Heire of their two bodyes begotten the remainder to the right Heires of the Feoffor and after the sayd Feoffor and Alice intermarried and after the said Holbeam tendred a hundred pound to the sayd John Glasse the Lessee for years and after the sayd John Glasse assigned over his Tearme and after the sayd Holbeam by Deed indented and inrolled bargained and sold the said Land to the said John Glasse and his Heir and after Iohn Glasse dyed and the Inheritance discended to the said Margeret Glasse Lessee for life the Conusor dies his Wife enters and lets to the Plaintiff the Defendant enters upon him and the Plaintiff re-enters and brings Trespass against the Defendant which justifies as servant to the Assignees of the Tearm and if upon all the matter c. And it was argued by Nicholls Serjeant for the Plaintiff and he moved three points in the case First if by this feoffment upon such condition as this is had been Extinct at the Common Law or remaines to the Feoffor notwithstanding the feoffment for if he have interest in the Land then it is extinct by the Livery for it is given of the Feoffor and past out of him and yet the Feoffee cannot have and for that it is extinct but if it were but Authority as in 15 H. 7. Authority to sell the land of the Devisor then the Authority remaines and is not extinct by the Feoffment of the land so power of Revocation to a stranger which is but authority is not extinct by a feofment Albaines case Coke 112. a. But if it be right in Interest then it is extinct by the feofment as power of revocation to the Party himself resolved to the point in Albains case so of Title to a Writ of Deceit 38 Ed. 3. So of a title to be Tenant by the Curtesie 9 H 7. 1. But by 42 Edw. 3. by a Feoffment made by a Parson of Land of his Rectory the Tythes of that Land are not extinct but remaines notwithstanding the Feoffment for that it was collaterall to the title of the Land as the Cases of Authority are which were put before then if this power to alter a Lease by payment of a hundred pound be not any right nor Interest but a collaterall power and the authority not extinct by the Feoffment but remaines but admitting that it is in nature of an ordinary Condition and that before the Statute it should be extinct by the Feoffment for that it is the gift of the Feoffor and yet it is not transferable to the Feoffee If now by the Statute of 32 H. 8. which inables Grantees of reversions to take advantage of Conditions if the condition be not transferred to the Feoffees and so over to he to whose use that then by consequence this remaines to the Feoffor which was the he to whose use and then the tender of the money after well may alter the Lease it seems that so for before the Statute if a Lease for yeares had been made upon condition to cease and after the Lessor enters upon the Lessee and makes a Feoffment and the Lessee re-enter and breakes the condition the Feoffee shall take advantage of that condition being by way of ceasing of an Estate so after the Statute the Feoffee of the Lessor shall take advantage of the condition of Re-entry and of every other condition annexed to the reversion as well as of one condition to cease before the Statute and as well that every Grantee shall doe since the Statute for though that he comes in by Feoffment which is wrong to the Lessee yet after the re-entry the Lessee is in nature of a Grantee And he cyted the Case of Clyfford Error 7. Ed. 6. to be that Lessor entred upon his Lessee and made a Feoffment if the Lessee re-enter the Rent and the Condition are revived againe and the Feoffee shall have both see Cliffords Error 7. Ed. 6. Dyer the last case and 1. M. Dyer 96. 43. but there is not any such matter and for that it seemes that he hath another report of this case of Cliffords Error or otherwise he meant some other case and not Cliffords Error so is our case the condition being inherent to the reversion shall passe with the reversion be that by grant or feoffment and when the reversion is revived by the entry of the Lessee the condition shall be revived also and it is the more strong insomuch that the Condition is that upon the payment of the money the Lease for years shall cease and not that the Lessor shall re-enter that such Feoffee shall take advantage of a condition by way of ceasing of that at the Common Law 2. point and for the second point he would not argue against that that he took to be cleer and for that he conceived the Law to be against his Clyent in this point though that after the Disseisin and Feoffment the free-hold could not accrue
of the Lessor But he agreed the case of Littleton that an Assignee of an Estate may perform a condition in preservation of an Estate otherwise of an Assignee of a Reversion in destruction of an Estate so at the Common Law it is clear that the Feoffee cannot perform the condition and by him it is cleerly out of the Statute of 32 H. 8. for this Statute doth not extend to a collaterall condition as it appears by Spencers case 5. Coke and so hath been many times after this adjudged and this is a collaterall condition Ergo c. And so concluded and prayed Judgment for the Defendant Nicholls Serjeant to the contrary and that this Disseisin hath not suspended the condition but that he may pay the Money and make the Estate to cease notwithstanding the Disseisin for-that that the condition is collaterall like to the 20 of Ed. 4. and 20 H. 7. That where a Feoffee upon a collaterall condition takes back an Estate for years yet this shall not suspend the condition but it may be performed or broken notwithstanding the Lease for that that it is collaterall so in our case for suppose that the condition had been if he marry Mistris Holbeam that then his Estate shall cease and as well it shall be upon the Tender of the Money here and he said that this case was late in the Common Bench. This feoffment was made to the use of the Feoffor for life Remainder to another for life the Remainder to the third in tayl the Remainder to the right Heirs of the Feoffor in fee with power of Revocation and after the Feoffor lets for years and during the Tearm he revokes the mesne Remainders and it seems to the Justices that well he may for that that the Lease for years goes only out of the Estate for life as he sayd and for that the power of Revocation as to the Mesne Remainders was not suspended Quere of the truth of this case in the common Bench for perchance it is not truly collected but so entred and so he prayed Judgment for the Plaintiff Flemming cheife Justice sayd that the point of the principall case would be if by the wrong of the Lessor the Estate of the Lessee shall be prevented to accrue then he might perform the condition to determine the ancient Estate that is the Lease for years and it is adjourned Pasch 8. Jacobi 1610. In the Kings Bench. Earle of Shrewsbury against the Earle of Rutland IN a Writ of Errour the Earle of Rutland brought an Assise of Novel Disseisin against the Earle of Shrewsbury and four others and the Plaint was of the office of the keeping of the Park of Clepson and of the vailes and fees of the sayd Parke and of the Herbage and Paunage of the same and the Demandant made his title and alledged that the Queen Eliz. was seised of Clepsam Park in fee in right of her Crown and that she being so seised by her Letters Patents under the great Seal granted unto one Markham the keeping of the Park of Clepson with the vailes and fees and the Herbage and Paunage of the same Park for his life after the Queen Eliz. reciting the Grant made to Markham and that Markham was alive gave and granted by her Letters Patents to the Earl of Rutland the Office of the keeping of the sayd Clepson Parke with the Fees and Wages to that appertaining to have and to hold to him for his life after the death of Markham or after the surrender or forfeiture of his Letters Patents and further granted the Herbage and Paunage to the sayd Earle of Rutland for his life and doth not say when this shall begin after which the Queen Eliz. died and the Eee-simple discended to our Lord the King which-now is as lawfull Heir to the Crown of England which granted that to the Earle of Shrewsbury after which Markham dyed and the Earle of Rutland entered and was seised till the Earle of Shewsbury with four others entered upon him and dissersed him and to that the Tenants alledged no wrong no disseisin and when the Assise was to be taken in the Country the Array was challenged by the Tenants for that that one of the Tenants in the Assise had an Action of Trespasse hanging against the Sheriff and this challenge was not allowed and the Assise being perused at large for the Herbage and Paunage they found that the said Queen Eliz. was seised of Clepson Park as aforesaid and by her Letters Patents as afore is rehearsed granted the Keeping of this to Markham for his life and further by the same Letters Patents granted to him the Fees and Wages to that belonging and further granted by Letters Patents and doth not say Easdem to him the Herbage and Paunage of the sayd Park and that the Queen after the reciting the Grant made to Markham and that Markham was alive granted to the Earle of Rutland the keeping of the sayd Park and vailes and fees to have and to hold after the death surrender or forfeiture of the Letters Patents of Markham for his life And further by the sayd Letters Patents shee granted the Herbage and Paunage of the same Park to him for his life as more fully appears by the Letters Patents and it was not expressed as to the Herbage and Paunage when that began and they found the death of Markham and that the Earle of Rutland put two Horses into the sayd Park to take seisin of the sayd Herbage and Paunage and they found further the grant of the King to the Earle of Shrewsbury of the fee-simple and of that prayed the advise of the Court and to the keeping of the Park they found the seisin and disseisin of that and of the fees and wages to the Dammages c. And this being adjourned into the Common Bench was remanded into the Country and there Judgment was given for all for the Demandant and after this it came into the Kings Bench by Writ of errour and the Errours assigned by the councell of the Tenants and argued at the Barr were foure The first was that the Earle of Rutland himself between the verdict and the Judgment hunted in the Park and kild a Buck and took a shoulder of that for his fee and so he hath abated his Assise and so the Judgment was given upon a Writ abated and therefore they cannot plead that in abatement insomuch that it was mesne betwixt the Judgment and the verdict they assigned that for errour The second was because the principall challenge was not allowed where that ought to have beene allowed and the challenge was that one of the Tenants had an Action or Trespasse hanging against the Sheriff before the Assise The third was Because the Jury have found the Letters Patents made to Markham and that the Queen granted to him by her Letters Patents the custody of the Parke of Clepson in Clepson And further by the same Letters Patents granted the vailes
Actions of Trespasse Pedibus Ambulando and vexation plainly appeares when Actions are begun upon such slight occasions and in Actions of Trespasse there issueth a Capias for a Fine and so the Defendant shall be Fined and Imprisoned and sure to be deprived of his liberty is a thing distastefull And it cannot be but that displeasure shall be between them which endeavour to restraine one the other of their liberty and so he concluded that this was a principall challenge and not being allowed this is error and so for this cause he reversed the Judgement Also it seemed to him as this case is there is no seisin found of the Paunage for the Jury have found that the Earle of Rutland hath put in two Horses and it seemes to him that Horses cannot take seisin of Paunage which is properly meate for Hoggs and so for this reason also insomuch that there is no seisin found of the Paunage and the Jury ought to find of necessity a Seisin and Desseisin it seemes to him that this is error and so the Judgement ought to be reversed and at the same day Williams Justice rehearsed the case as before and in his argument he spake First to Grants Secondly to the challenge Thirdly to the abatement of the Writ And it seemes to him that none of these matters were sufficient to reverse the Judgement but yet he conceived for two other causes that the Judgement shall be reversed And first concerning Markhams Patent that the Jury have found very good though that they have not said by the same Letters Patents but he said that it had been more proper if they had found that the King had granted that by the same Letters Patents and for that he cited the case of Information of Mines in the Com. And the pleadings before the case there the Letters Patents of the King are pleaded and where the King grants divers things it is there said that the King by the same Letters Patents granted and so the case of Grendon against the Bishop of Lincolne where the King by his Letters Patents granted to a Deane and Chapter that they should hold an Advowson to their proper use and further granted by the same Letters Patents c. And so he said in this case that this had been more properly found if it had been found that the King Per Easdem Litteras Patentes granted yet this is very good as it is and this as he said by the Intendment for it cannot be otherwise intended and for that he cited the book of Entries in Title Covenant That where a man brings a Writ of covenant and counts upon an Indenture that is that the Defendant covenanted to do such a thing and further covenanted and doth not say by the same Indenture yet this is very good because it cannot be otherwise intended but when that is by the same Indenture and where things shall be taken by Intendment he cited the case of 5. Assis 2. Where in Assise of Common the Plaintiff made him Title that is that he was seised after the Coronation of King H. this shall be intended H. 3. See Brooke Limitation 4. and the Case of 17. Eliz Dyer 342 Where these Letters H. R. A. F. shall be intended Henricus Rex Angliae Franciae c. And he cited the case of 21. H. 7. 32. Where a man pleads a release made in Villa de West the County of Middlesex and doth not say secondarily In Predicta Villa And there these Justices held that good and it shall be intended the same Town so he said in this case this shall be intended that Grant by the same Letters Patents though that Easdem be left out And to the Grant to the Earle of Rutland he held that good also though that it is not expressed as concerning the Herbage and Paunage when that should begin and he said that this is also for the intent and also he said that this is not in prejudice of the King nor in deceit of the King nor to the double Intendment and for that good And he put the case where the King made a Lease for one and twenty years rendring Rent and doth not shew when that shall begin That shall begin from the Date of the Letters Patents because it cannot be otherwise intended so in the principall case the grant of the Herbage and Paunage depends upon another Grant That is the custody of the Parke which was to begin after death surrender or c. of Markham and having relation to that by this word Vlterius that shall be necessarily intended to begin at the same time and he well agreed the bookes of 3. H. 7. fol. the last and 6. H. 7. 14. 8. H. 7. 1. 9. Eliz. 259. 7. Ed. 6. Dyer 80. That there is no reversion of an office But yet the King may grant an office after the first Grant determined and this shall be good And so shall be in our case of the Herbage and Paunage and he cited the case of 8 H. 7. 12. 13. where the King was Founder of an Abbey and he had granted a Corody to another for life and after he released that and granted it to the Abbot this shal not be a good release presently because another hath the possession for present of it but this shall be good after the death of him which hath this granted for his life And he cited the case of the Lord Chaundois 6. Coke where the King grants the Mannor of Dale in tayl and after grants the Mannor to another this shall passe the reversion for this is all that the King can passe So he said in this case this shall passe in such manner as it may passe by which he concluded the Grant to the Earle of Rutland good Also to the challenge it seemed to him it is no principall challenge and for authority he cited the case in 11. H. 4. That hath been cited of the other part which was for him as he said for this takes the difference between Debt and Battery and 38. H. 6. a. Juror was challenged because one of the parties had an Action of Trespasse hanging against him and this was not any principall challenge unlesse it be Trespasse of Battery and to the booke of 20. Assis 11. Where a Juror was challenged because he had Trespasse against him before the Assis he said it did not appeare by the book what Trespasse that was So it shall be intended Battery and he concluded with this difference that if such an Action be hanging which tends to the utter undoing of him against whom it is brought then if the Defendant in such Action make the array this shall be a principal challenge but if it be but such an Action in which a man shal recover but his Debt or Damages or such lawfull duties there to say that such Action is hanging between them at the time of the array made shall be no principall challenge And for that he
cited the book of 24 Ed. 3. Where a Tales was returned by the Sheriff of Middlesex and the party challenged the Jury because he sued the Sheriff for the death of his Servant and this was a principall challenge for in such case his life was in question the same Law in case of Maintenance and Champerty for the Law hath inflicted great punishment upon such Offences so these matters tend to utter subversion of his Estate and life but otherwise in Actions of Trespasse and so he concluded no principall challenge To the abatement of the Writ it seemes no Error First he conceived that there is no entry and for the reason that Crooke had given before that is because he entred to hunt and not to keep possession and hath not shewed any Warrant to kill the Buck and he cited the book of the 5. of Ed. 4. fol. 60. Where Babington brought an Assise of the house of the Fleete and hanging the Assise Babington came to the Jury within the house when they had the View with his Councell to shew Evidence for the view and this was not any entry to abate the Writ and so the entry to hunt is an entry for another purpose then an entry to keep possession not being by warrant as it is not found and for that no entry to abate the Writ But admitting that this had been an entry to abate the Writ yet being a thing which doth not abate the Writ without Plea and that cannot be pleaded as the case is he conceived was no Error but if it had been a thing which abated the Writ in Facto without Plea then to give Judgement upon a Writ abated is Error As if the party die hanging the Writ or if a woman sole brings an Assise and takes a Husband hanging the Assise or if the Plaintiff in a Assise be made Judge of Assise as the 15. of Assise in all these cases the Writ is abated in Facto without Plea But entry shall not abate the Writ without Plea and so it seemes to him no error But he conceived that there were two other errors for which he reversed the Judgement The first was that this Assise was de Libero Tenemento in Clepson and the plaint was of the keeping of the Park of Clepsom and of the Herbage and Paunage of the Parke aforesaid called Clepsom and made his Title for Herbage and Paunage of the Park of Clepsom and so he conceived that there is variance between the Plaint and the Title and Park of Clepsom and Clepsom cannot be intended one without speciall averment and for that he conceived it to be errour And to that he cited the case of twelve Assises two Where in attaint the first originall was of the Mannor of Austy and the Attaint was of the Mannor of Auesty and yet for that that the Attaint is founded upon the Record and not upon the Originall and the Record was of the Mannor of Auesty this was very good but the Booke saith that this variance between the Originall and the Record was sufficient to reverse the Record for errour and the case in 42 of Ed. 3. Where Scire facias was brought of Tenements in Eastgrave and the Fine was of Tenements in Deepgrave and for the variance the Writ abated and in the case of 5 Coke 46. Formedon was brought of the Mannor of Isfeild and the Tenant pleads in barr a recovery of the Mannor of Iffeild and this shall not be amended unlesse it appear that this is a misprision of the Clark or by other averment he cited also the case of 3 H. 4. 8. Scire facias upon garnishment in a Writ of Detinue of writings the Originall name John Scripstead and the Scire facias was made Iohn Shiplow and therefore agreed that he shall sue a new Scire facias so he said in the Principal case the Plaint being of Herbage and Paunage of Clepson Parke aad the title being at Clepsom Parke these shall not be intended to be the same Parke without averment and there in no averment in our case and for that such variance is such errour that shall reverse the Judgment The second errour for which he reversed the Judgment was that which was moved by Justice Crook that the Jury have not found any seisin of the Paunage for it seemed to him that a Horse could not take Seisin of paunage and for that he defined paunage and he sayd that Linwood title-Tithes saith the Paunagium est pastus Porcorum as of Nuts and Akornes of trees in the wood and Crompton saith that this is Pastus Porcorum and he saith that Paunagium is either used for Paunage or the Paunage it self and the Statute of Charta de Foresta saith that every Freeman may drive his Hoggs into our royall Wood and shall have there Paunage but he doth not say Horses or other Beasts but he conceived that if the Earle of Rutland had right in the Park that this had been sufficient seisin of Herbage and Paunage also for Hoggs will feed upon grass as well as upon Akornes and he cited the Book of 37 H. 6. saith that Seisin to maintain an Assise ought not to be of a contrary nature to the thing of which seisin is intended to be given but in one case only and that is where the Sheriff gives seisin of a Rent by a Twig or by a Clod of Earth and this is in case of necessity for the Sheriff cannot take the Money out of the purse of the Tenant of the Land and deliver seisin of that and for that he cited the case in 45 Ed. 3. Where Commoner comes to the Land where he ought to have Common and enters into the Land and the Lord of the Waste or the Grantor of the Common outs him he cannot have an Assise of his Common upon this outing for this was not any seisin of the Common so it is in this case the Horses cannot take Seisin of the Paunage and so there is no seisin or disseisin found by the Jury and then no Assise and this being after Judgment no abridgment may be of the Plaint and so for these last reasons he reversed the Judgment And at another day the case was rehearsed again and argued by Yelverton and Fenner Justices but I did not hear their Arguments insomuch that they spake so low but their opinions were declared by the cheife Justice and Yelverton affirmed the Judgment in all First he held that this entry shall not abate the writ Secondly admit that it is abated yet being between Verdict and Judgment shall not be assigned for errour Thirdly he held that no principall challenge Fourthly he held both the grants good Fifthly that Clepsam and Clipsam are all one and not such variance that shall make Errour And lastly that a Horse may well take Seisin of Paunage and Fenner agreed in all but he held that this was a principall challenge and not being allowed this
taken to the title because he saith that he was seised and not saith that he is and yet good by this word Fuit for that shall be intended that he continues seised so he sayd that things which are necessarily to be intended though they be not so particularly expressed yet shall be good by Implication and so he concluded that this is no Error for which the Judgment shall be reversed And to the challenge he conceived that this is not any principall challenge and to that he put this difference that if a man brings an Assise of certain Land and hath an Action of Trespass hanging against the Sheriff for entring into the same Land there shall be a principall challenge to the Array but if it be for entry into other Land not in demand otherwise it is and what is principall challenge and what not he cyted the Bookes of 3 Ed. 4. 12. 6 Ed. 4. 1. 21 Ed. 4. 67. 14 H. 7. 1. 21. Ed. 4. 10. And to the point in question he cyted the Bookes before remembred by Crooke and Williams and no others and for that I omit to recite them and he agreed also that in actions which concern life Honesty Mayme Battery to say that he hath such action hanging against the Sheriff shall be a principall challenge but Trespass for entring into Land not for in Trespass there is no Land to be recovered also no damages but to the value of the Trespass And in Debt a man shall recover more then in Trespasse And yet it is agreed that this is no principall Challenge to say that he hath an Action of Debt hanging against the Sheriff as the Book of 11 H. 4. is which hath been remembred and for this I conceive it no principall challenge And to the seisin of the Paunages if a Horse may take seisin of that it seemes that yea for I conceive that the taking of seisin doth not consist in the eating or not eating of that of which the seisin is to be taken and for that he cited that if a man grant to me the Herbage and Paunage of his Parke and I come into the Parke and take the Grasse and Herbs into my hands or if I gather Akornes this is sufficient seisin for me to have Assise though that I do not eate the Grasse nor the Akornes and for that let us put the case that a man hath Herbage granted to him and he puts in his Beasts and before that they eate the grasse they are driven out none will deny but that that shall be good seisin for so is the Book of the 22. Assise 84. Where a man hath Common granted to him and he takes the Beasts of a stranger and puts them in and them forthwith drive out that shall be a good seisin of the Common to have Assise so that he said that the eating is not to purpose also he said Horses will eate Akornes as well as Cowes And he saith that in the Country where he inhabits being a Wood-land Country they will not suffer the Beasts to go into the Woods at a certaine time of the yeare and this is when Crabs are ripe for then their Beasts will eate Crabs and set their teethes an edge and then not being able to chew Akornes do swallow them whole and then those Ackornes being swallowed whole will grow in the Mawe of the Beast and so kill them And he saith that though that Horses be not so proper Beasts to take seisin of Paunage as Porkes are yet being put in for the same purpose if they are disturbed that shall be Seisin and Disseisin and it seemes to him that when things are granted to one that it shall not be strange to say that seisin of one shall be seisin of both and for that if a man grants all his arrable Land all his Meadow and all his Wood Livery and Seisin in one suffices for all but I conceive that this is in respect of the soyle which passeth and so are all of one self same nature and so he conceives that this is sufficient Seisin and Disseisin found to have Assise And lastly to the Title of the Earle of Rutland he said that this was good and to the Grants of the King he said two things are necessary in all Grants of the King that is a Recitall and a certainty and when a recitall shall be necessary and when not and he said that in all cases when a common person makes a Lease for years or for life and the reversion is conveied to the King if the King will make Estate to another he shall not recite this Lease for this not being of Record the King cannot take notice of it and so he shall not recite But in all cases when the King makes a Lease for life or for years and after will make a Grant to another he ought to recite the first Estate because that is of Record And Justice Yelverton as I heard of those which were next unto him put this case That if the King grants a Lease for yeares rendring Rent and after the King reciting the Lease grants that to another for years or grants the reversion to another and doth not recite the Rent which was reserved upon the first Lease that this second Grant shall be void for the not recitall And the cheife Justice cited one Phillpotts Case to be adjudged in the 2. of Eliz. That where the King made a Lease for one and twenty yeares and after reciting the said Lease grants the reversion to another and before that the second Letters Patents were sealed the first Lessee surrendred And said that the second Grant was adjudged void for the King intended to passe a reversion and now he shall have a Possession and all that which is said to be in case of Land Now let us see how it shall be in case of office and for that if a common person hath â—n office in Fee and grants that for life and after grants the Fee simple to the King and the King will grant that to another there he ought to recite the common persons Grant as well as if it had been his one Grant for there is not properly a reversion of an office as the Book cited by my Brother Williams sayd Secondly if the office be recited in Esse and be not in Esse the Grant is void as Blanyes Case is in the Lord Dyer 3 Eliz. 197. 47. And this sufficeth for recitalls Then for certainty of the Kings Grant it is said in the 2. R. 3. it is said that the Grants of the King ought to be made in certaine and for that where the King there Grants to Sir John Spencer that he shall not be Sheriff this was void for the incertainty of the place But if the Grant had been of such a County or such a County the Grant should be good Also there ought to be certainty of Estates as it is in 18. H. 8. Where the King gives Lands to
one and his Heires Males this is void for uncertainty of the Estate then it is so averred in our case if there be not sufficient recitall and certainty and to the recitall that is good without question for she recites that she hath granted that to Markham for ifâ— and Markham is yet alive and so the recitall good Then for the certainty he said that the rule is that if the certainty be declared by expresse words or if the King may reduce that to a certainty the Grant of the King shall not be defeated and for that he cited the case of Information of Mines Comment But if the King grant to me all Mines in the Land of J. S. There I shall have all Mines Royall for the Law saith the King cannot have other Mynes in the Soil of a Subject but Mines Royall and so there the Law supplies the Grant so that they be Mines Royall though not expressed in the Grant in certaine so he said in the principall case that the Queen hath expresly recited that she hath granted the Herbage and Paunage for life to Markham and that Markham was yet alive and after grants that to the Earle of Rutland and doth not say when that shall begin the Law saith that shall begin after the death of Markham for before that it cannot begin But if the Queen had exprest in the Letters Patents that this shall begin forthwith then this had been void as the Lord Gaudy said in Altonwoods Case 1 Coke fol. 51. And so he concluded the Title of the Earle of Rutland good So he affirmed the Judgement in all But Williams was very peremtory for the conceit of Paunage that it was not good Seisin But after Crooke Justice recanted his opinion of that and insomuch that there were three which concluded for the reversing of the Judgement And yet for every point there were three against two It was doubted if this Judgement should be reversed or not And they said that they would advise with the rest of the Judges and after that it was moved againe by Serjeant Nicholls in the next Trinity Tearme and Yelverton and the cheife Justices would have the Judgement affirmed but Williams Fenner and Crooke to be reversed and note well this President where Judgement was reversed and yet for every point there were three Contra two or foure Contra one see the first Judgement in the Common Bench Michaelmasse 6. Jacobi afterwards Termino Pasche 7. Jacobi 1609. In the Kings Bench. Trinity Colledge Case THE Case was this King Henry the eight Incorporated the Schollers of Trinity Colledge in Cambridge by the name of Masters Fellowes and Schollers Collegij Sanctae et Individuae Trinitatis in the Town and University of Cambridge and in the 6. Ed. 6. They made a Lease by the name of Master and Fellowes of Trinity Colledge in Cambridge leaving out the University And if this Lease were good or not was the question And Yelverton argued that this was not a good Lease and that for the misnaming of the Corporation And to that he said to every Corporation two things were incident That is name and place and if any of those fayl and be not certainly recited in a Lease the Lease shall not be good And he conceived that this Corporation is founded upon two places and that one of them That is the University is left out and for that cause the Lease is nothing worth for if a Corporation hath two names one of them cannot be omitted as it is in the first of Mary Dyer 96 97. and 4. Mary 140. and 150. 11. Eliz. Dyer 278. 35. H. 6. 5. and 6. No more then when it consists of two places one of them may be left out And for that if they had been incorporated by the name of Master and Fellowes of Trinity Colledge in Norfolke and Suffolke in a Lease they could not leave out Norfolke or Suffolke but both the places ought to be incerted And by him in the principall case if the Lease had been made by the name of the Master and Fellowes of Trinity Colledge in the Town and leave out the University of Cambridge without question this shall be void so here this being impliedly omitted shall be as strong as if it had been by expresse words excluded so in the making of every Corporation the intent of the Founder is to be considered and for that it seemes the intent of the King in placing that in both places was first to erect a Colledge and that to grace the Town and then he hath placed them in the University and this was for the instruction in good Arts and Learning and so for these benefits they have of both these places nor one nor the other may be left out And if the King had been incorporated by the name of Master and Fellowes of Trinity Colledge in Cambridge and in the Market place of Cambridge There though that the Market place was parcell of the Town of Cambridge yet it seemes to him that this cannot be left out for peradventure the Founder hath a speciall reason to place that there that is to have all things necessary for them more neer unto them Also where any stranger demands any possession of them in Precipe Quod Reddat or such like he ought to ensue them certainly and precisely Then a Fortiore where they depart with their possessions by their own Act there they shall not be unknowing of their one names And Walter of the inner Temple argued to the contrary and he conceived that the Lease is good and first he argued the ground which hath been taken of the other part that is that every corporation ought to be in a certain place and he conceived that there is a certaine place in this place that is the Town of Cambridge And to that that is said that this Corporation is founded upon two places he denied that all together for no more then one materiall Body may be but in one place Simul and Semel no more may it be in a Body Corporate which hath allwaies his resemblance to a Body naturall and for that he denied the case which hath been put of the other part of Norfolk and Suffolk And he cyted the opinion of the Lord Popham in Buttons Case in which the Lord North was Interested that a Corporation cannot be limited to a County as Probos Homines of such a County or Trinity Colledge in such a County but it ought to be restrained to some certaine place or one County or a Town But admit that the Corporation may be founded upon two places yet he faith that a University is not Locall but Personall And to this purpose he cyted two Records one in 48 H. 3. Which was this King H. 3. Intending to keep a Parliament at Oxford and knowing that the place was not sufficient to contain all those which should be there assembled and the Schollers together sent his Writ which was directed to the
every Knight and that diverse of those Fees were received and this office being litigious were delivered to be detained in Deposito and to be delivered to him which was Officer and the plaintiff brought an Action by the name of Chester as Officer and recovered those Fees and this was resolved good Seisin and also that Seisin after the grant of the Office and before the investing of the Patentee by the Marshall was good for the Investing was but a ceremony it was also resolved that where an office extends to all the parts of England and that here an Assise doth not lie in any County though that the dissesin were made in one County but the Assise be brough for the profit of the office in one County and not for the office it selfe 43. Ed. 3. Feoffments and Deeds That by Grant of the profits of a Mill and Livery the Mill it selfe passes so that taking of the profits is dissesin of the office also it was objected that the Demandant was no officer for though that he hath a Patent of it yet he was not Invested nor Installed in the office which appeares to the Marshall and for that he was no Officer and so hath no cause to have Action And that this is an office which is incident and annexed to the office of Earle Marshall and though that he be not Earle Marshall yet there are Commissioners have his power and authority and for that the Investing and Instalment of the Plaintiff in the said office appeares to the said Commissioners but it was resolved cleerely by all the Justices that the Demandant was Officer by the Kings Grant without any Installation or Investing and that this without that all the Fees and Profits of the office appertayning to him and that the Investing and Installation was but a ceremony in the same manner as if the King hath a Donative and gives that to another the Donee shall be in actuall possession by the gift without any Induction or other ceremony But admitting that the office were annexed to the office of Earle Marshall then it was agreed that the Commissioners cannot give it as the cheife Justice of the Common â—ench hath divers offices appertaining to his place and he may dispose of them But if he die the King in time of vacancy nor the most ancient Judges cannot give or dispose of any of them being void as it appeares by Serrogates Case Eliz. Dyer And so the cheife Justice is made and allwaies hath been made by Patent and so are the other Justices and for that they cannot be made by Commissioners and so the cheife Justice of England hath all times been made by Writ and for that cannot be made by Patent nor by Commission And so in the case at the Barr though that the Commissioners have the power and authority of the Earle Marshall yet they are not Earle Marshall it was also objected that the Fees were not due to the Plaintiff for that he did not attend But to that it was answered and resolved that the Fees were due to the office and for that non attendance of the office was no forfeyture of the Fees And upon these resolutions the Recognitors found for the Demandant according to the direction of the Court. Trinity 7. Jacobi 1609. In the Kings Bench. Godsall GODS ALL and his Wife The Proclamations of the Fyne were well and duly entred in the Originall remaining with the Chirographer But in the Transcript with the Custos brevium was error and it seemeth that this notwithstanding the Fyne was good but the Transcript was amended Trinity 7. Jacobi 1609. In the Kings Bench The Town of Barwicke THE King which now is by his Letters Patents Incorporated the Mayor Bayliffs and Burgesses of Barwicke and granted to them the execution of the Returne of all Writs And after a Writ of Extendi facias was directed to them and they made no returne of that and upon this was the question if that shall be executed by them or by the Sheriff of Northumberland And it seemed to Nicholls Serjeant that argued for the Plaintiff in the extent that desired execution and the returne of that that they ought to make execution and returne for it seemes to him that this was English and that this appeares by the Act of Parliament by which the Incorporation was confirmed and so it appeares also by the Letters Patents of the King by which the Incorporation is made for if it were not English neither the Letters Patents nor the Act of Parliament are sufficient to make Incorporation of that and also they certified Burgesses to the Parliament of England And the Kings Bench sent Habeas Corpus to it and for the not returne of that inflicted a Fyne upon the Corporation See 21. Ed. 3. 49 and 1. Ed. 4 10. But Hutton Serjeant seemed to the contrary and that they ought not to make execution for he said it is a part of Scotland and not part of England and it was conquered from that and it was a Sherifwicke and hath the same priviledges of ancient times which they now have by their new Grant See 24 Ed. 1. and 2. Ed. 2. Obligation c. That one Obligation dated there shall not be tryed in England and also that it is not within the County of Northumberland nor part of it nor the Sheriff of Northumberland cannot meddle in it see 2. H. 7. 31. 26. H. 6. 23. and it is adjourned It seemes that Jacob and James are all one name for Jacobus is-Latine for them both but Walmesley conceived that if he be Christened Jacob otherwise it is as if one be Christened Jacob and another James then they are not one selfe same name Note that Coke cheife Justices said that if Commissioners by force of Dedimus potestatem take a Fine of an Infant that they are Fynable and ransomable to the value of their Lands and that this shall be sued in the Star chamber Trinity 7. Jacobi 1609 In the Common Bench. Robinson RObinsons Case A man devises Lands to his Wife for life the remainder to his Son and if his Son dies without Issue not having a Son that then it should remaine over and it seemed that this it a good Estate tayl and it was adjudged accordingly If a man makes a Lease for three yeares or such a small Tearme to his Son or Servant to try an Ejectione Firme or if it be made to another Inferion by a Superior which cannot countenance the Suit it shall not be intended Maintenance nor buying of Tytles which shall be punished Trinity 7 Jacobi 1609. In the Common Bench. NOte an Attorney of the Common Bench was cited before the High Commission and committed to the Fleet for that he would not swear upon Articles by the Commissioners ministred and Habeas Corpus was awarded to deliver him and a Prohibition to the Court of high Commission see 1. and 2. Eliz. Scroggs case
against three Executors two of them are out lawed and the third pleads and Verdict against him and it was resolved that the Judgement shall be against all by the Statute of 9. Ed. 3. for they all are but one Executor and the Cost shall be against him which pleades if the others confesse or suffer Judgement by default And there shall be but one Judgement and not diverse see 17 Ed. 3. 45. b. 11 H. 6. Upon a Venire Facias awarded the Sheriff returnes but 21. and the Habeas Corpora was against 21. only and this was also returned and upon that ten appeared and upon this Tales was awarded and triall had and but ten of the principall Pannell sworne And this was Error but if twelve of the principall Pannell had appeared and served it seemes that it shall not be error for so it was resolved in Graduers case where twenty three were returned but twelve appeared and tryed the Issue and this was resolved to be good and no error Michaelmasse 7 Jacobi 1609. In the common Bench. Buckmer against Sawyer A Man seised of Land in Gaelvelkind hath Issue three Daughters that is A. B. and C. deviseth all his Land to A. in tayl the remainder of one halfe to B. in tayl the remainder of the other halfe to C. in tayl and if B. died without Issue the remainder of her Moytie to C. and her Heires and if C. died without Issue the remainder of her Moytie to B. and her Heires the Devisor dies A. and B. dies And the question was if C. shall have a Formedon in remainder only or severall Formedons for this Land And it seemed to all the Justices that one Formedon lieth well for all for that that it was by one selfe same conveiance though that the Estate come by severall deaths and this Action was to be brought by the Heire of C. after the death of C. See the three and four Phil. and Mary Dyer Note that after appearance of a Jury and after that divers of them were sworn others were challenged so that it could not be taken by reason of default of Jurors But a new Distringas awarded and at the day of the returne of that these which were sworn before appeared and then were challenged But no challenge shall be allowed for that that they were sworn before if it be not of after time to the first appearance Michaelmasse 7. Jacobi 1609 In the Common Bench. Baylie against Sir Henry Clare BAYLIE against Sir Henry Clare the Writ was of two parts without saying in three parts to be divided And it seemed to Nicholls Serjeant which moved this that it was not good but error But the opinion of the Court was that it was good See 17. Ed. 3. 44. 19. Ed. 3 breife 244. 17. Assise with this difference that if there are but three parts and two are demanded there it is good without saying in three parts to be devided for when parts are demanded it is intended all the parts but one and that it is only one which remaines see the Register fol. 16. 12. Assise And it was adjudged in the Kings Bench in the case of one Jordan that demand of two parts where there are but three parts is good see 39. H. 6. Salford against Hurlston in Formedon which demanded two parts where there is but three and so of three parts where there is but four it is good without saying in three or four parts to be divided But if a man grant his part this shall be intended the halfe for Appellatio partis dimidium partis contenetur and a Writ of Covenant ought to be of two parts without saying in three parts to be divided for so is the forme and if in such case in three parts to be divided be incerted the Writ shall abate see Thelwell in his digest of Writs 146. and by Coke if a man bring Ejectione Firme for ten Acres and by evidence it appeares that he hath but the halfe Ex vigore Juris it shall not be good but he said he would submit his opinion to the Judgement of ancient Judges of the Law which have often time used the contrary Note that the Husband may avoid his Deed that he hath Sealed by the duresse of Imprisonment of his Wife or Son But not of his Servant and so Mayor and Commonalty may avoid a Deed sealed by duresse of Imprisonment of the Mayor for it is Idemptity of person between the Husband and the Wife See 21. Ed. 4. and 7. Ed. 4. A man may avoid Seâ—sin for payment of Rent by coersion of distresse but not his Deed. Michaelmasse 7. Jacobi 1609. In the Common Bench. Payn and Mutton IN an Action upon the case by Payne against Mutton the Plaintif counts that the Defendant called him Sorcerer and Inchantor And agreed by all the Justices that Action doth not lie for Sorcerer and Inchantor are those which deale with charmes or turning of Bookes as Virgill saith Carminibus Circes socios mutavit ulissis which is intended Charmes and Inchantments and Conjuration is of Con et nico that is to compell the Divell to appeare as it seemes to them against his will but which is that to which the Devill appeares voluntarily and that is a more greater offence then Sorcery or Inchantment which was adjudged that Action doth not lie for calling a man Witch and said that he bewitched his Weare that he could not take any Fishes Dodridge the Kings Serjeant saith that an Action lieth for calling a woman gouty pockye Whore and said that the Pox had eaten the bottome of her Belly out and so it was adjudged that it lieth well for these words get thee home to thy pokey Wife the Pox hath eaten off her Nose But for the Pox generally Action doth not lie But if he saiâ—h that he was laid of the Pox then Action well lieth for then it shall be intended the great Pox. Note that in Prohibition and Replevin the Defendant may have nisi prius by Proviso without default of the Defendant for he himselfe is re vera Defendant and there are two Actors that is the Plaintiff and Defendant But the Court appointed that Presidents should be searched the Plaintiff is not bound to prosecute Cum Effectu in this Court as he is in the Kings Bench And it was agreed that the manner of Pleading was agreement as for Returno Habendo in the Replevin and Pro consultatione habenda in the Prohibition Michaelmas 7. Jacobi 1609. In the Common Bench Miller and Francis MYLLER Plaintiff in Replevin against Thomas Francis the case was Richard Francis was seised of Land held in Socage and deviseth that to John his eldest Son for a hundred yeares the Remainder to Thomas his second Sonn for his life and made his four other youngest Sonns his Executors and after made a Feoffment to the sayd uses the Remainder to the sayd John his eldest Son in tayl
charge to the King and to the Common Wealth and the execution of Writs may be prejudicall and penall to the Sheriff himselfe And for that he may well provide that he shall have notice of every execution which are most Penall And also in all the Indenture now made he doth not constitute him to be his under Sheriff but only for to execute the Office and for these reasons he seemed the Obligation is good and demands Judgement for the Plaintiff But it seemes to all the Court that the Covenant is void and so by consequence the Obligation as to the performance of that void but good to the performance of all other Covenants And Coke cheif Justice said that the Sheriff at the Common Law was elligible as the Coronor is and then by the death of the King his Office was not determined and also it is an intire Office and though the King may countermand his Grant of that intirely yet he cannot that countermand by parcells and also that the under Sheriff hath Office which is intire and cannot be granted by parcells and this Covenant will be a meanes to nourish bribery and extortion for the Sheriff himselfe shall have all the benefit and the under Sheriff all the payn for he is visible the under Sheriff and all the Subjects of the King will repaire to him and the private contracts between the Sheriff and him are invisible of which none can have knowledge but themselves And Warburton sayd that in debt upon escape c. are against the Sheriff of Notingham he pleaded Nihil debet and gives in evidence that the Bayliff which made the Arrest was made upon condition that he should not meddle with such executions without speciall warrant of the Sheriff himselfe and his consent but it was resolved this notwithstanding that the Sheriff shall be charged in and in the principall case Judgement was given accordingly that is that the Covenant is void Note that the Sheriff of the County of Barkes was commited to the Fleete for taking twenty shillings for making of a warrant upon a generall Capias utlagatum for all the Justices were of opinion that the Sheriff shall not take any Fees for making of a warrant or execution of that Writ but only twenty shillings and foure pence the which is given by the Statute of 23. H. 6. for it is at the Suit of the King But upon Capias utlagatum unde convictus est which is after Judgement it seemes it is otherwise A man grants a Rent to one for his life and halfe a yeare after to be paid at the Feasts of the Anunciation of our Lady and Michaell the Archangell by equall portions and Covenants with the Grantee for the payment of that accordingly the Grantee dies 2. Februarâ—… and for twenty pound which was a moyity of the Rent and to be payd at the anunciation after the Executors of the Grantee brings an Action of Covenant and it seems it is well maintainable And Coke cheife Justice sayd That if a man grants Rent for anothers life the Remainder to the Executors of the Grantee and Covenant to pay the Rent during the Tearm aforesayd this is good Collective and shall serve for both the Estates and if the Grantee of the Rent grant to the Tenant of the Land the Rent and that he should distrain for the sayd Rent this shall not be intended the same rent which is extinct but so much in quantity and agreed that when a Rent is granted and by the same Deed the Grantor covenants to pay that the Grantee may have annuity or Writ of Covenant at his Election Michaelmas 7. Jacobi 1610. In the Common Bench. Waggoner against Fish Chamberlain of London JAMES Waggoner was arrested in London upon a Plaint entered in the Court of the Maior in Debt at the suit of Cornelius Fish Chamberlain of the sayd City and the Defendant brought a Writ of Priviledge returnable here in the Common Pleas and upon the return it appears that in the City of London there is a custome that no forrainer shal keep any shop nor use any Trade in London and also there is another Custome that the Maior Aldermen and Commonalty if any custome be defective may supply remidy for that and if any new thing happen that they may provide apt remedy for that so if it be congruae bonâ— fidei consuetudo rationi consentiae pro communi utilitate Regis civium omnium aliorum ibidem confluentium and by Act of Parliament made 7 R. 2. All their customes were confirmed and 8 Ed. 3. The King by his Letters Patents granted that they might make By-Laws and that these Letters Patents were also confirmed by Act of Parliament and for the usage certified that in 3 Ed. 4. and 17. H. 8. were severall acts of Common Councell made for inhibiting Forrayners to hold any open shop or shops or Lettice and penalty imposed for that and that after and shewed the day in certain was an Act of Common counsell made by the Mayor Aldermen and Commonalty And for that it was enacted that no Forrayner should use any Trade Mistery or occupation within the said City nor keep any Shop there for retayling upon payn of five pound and gives power to the Chamberlain of London for the time being to sue for that by Action c. in the Court of the Mayor in which no Essoyn nor wager of Law shall be allowed and the said penalty shall be the one halfe to the use of the said Chamberlain and the other half to the poor of Saint Bartholomewes Hospitall And that the Defendant held a shop and used the Mistery of making of candles the seventh day of October last and for that the Plaintiff the ninth day of the same month then next insuing levied the said plaint And upon this the Defendant was Arrested and this was the cause of the taking and detaining c. And upon argument at the Bar by Serjeant Harris the younger for the Defendant and Hutton for the Plaintiff and upon sollemne arguments by all the Justices Coke Walmesley Warburton Danyell and Foster it was agreed That the Defendant shall be delivered and not remanded And the case was devided in to five parts The first the custome Secondly the confirmation of that by Act of Parliament Thirdly the grant of the King and the confirmation of that by Act of Parliament Fourthly the usage and making of Acts of common councell according to this Fiftly the Act of common councell upon which the Action is brought and upon which the Defendant was Arrested And to the first which is the custome it was also said that this consists upon three parts That is first if any custome be difficult Secondly if it be defective Thirdly if Aliquid de novo emergit The Mayor Aldermen and Commonalty Possunt opponere remedium and that there are foure incidents to that remedy First it ought to be Congruum Retione
but hath nothing in the Soyl according to the 14. H. 2. and 3. H. 6. 45. Ives case 5. Coke 11. So if a man make a feoffment of land except the Woods all woods are except by that and if Woods be cut and after grow againe in the same place this is also excepted But if woods after grow in another place this shall not be excepted for it was no wood in Esse at the time of the feoffment so if a man grants to another to dig Coles in his Soyl this is but to take profit and the Soyl doth not passe as it is agreed in 11. Eliz. Dyer 245. And it was said by Hutton Serjeant that he had seen an Ejectione Firme brought upon a Lease of Vsura terra But it was agreed by Coke cheife Justice and Foster that the Statute of 22. Ed. 4. chap. 7. was repealed by the Statute of 35. H. 8. for this is the negative and for that is repeal of a former Statute but if the last had been in the affirmative otherwise it should be and it was also agreed that this was not within the Statute of 35. H. 8. for that appoints of what age the wood shall be when it shall be inclosed and by this recompence is given to the Commoner but here it is not averred by pleading of what age this wood was which was inclosed and for that it was adjudged that the Action is not maintainable against the Commoner see Pasche 8. Jacobi for another argument at the Bar and also by the Judges Hillary 7. Jacobi 1609. In the Common Bench. Vivion against Wilde A Man was bound in an Obligation to another with Condition to stand to abide and performe the award of two Arbitrators and before the award by his writing the Obligor revoked the authority of one of the Arbitrators And it was agreed by all that this Obligation is become single without Condiion and yet it was not pleaded that the Arbitrator had notice of the revocation before the award made And yet for that it was pleaded that Revocavit it was agreed that that implies notice for without notice it is no revocation But it was agreed that if a man submit himselfe to the award of another and after he revokes his authority But before the Arbitrator had notice of that he makes the award the award is good and shall be performed so if a man make a Feoffment and Letter of Attorney to make Livery And before Livery made he revokes the power of the Attorney But before notice the Attorney makes Livery this is good but if the Feoffor makes a Lease or feoffment to another before the Livery made by the other this is a Countermand in Law and shall be good without notice for Fortior est dispositio legis quam hominis But where a man makes actuall revocation of the authority and before notice the other executes his authority and in pleading the other pleades Quod revocavit the other party may reply Quod non revocavit and give in evidence that he hath no notice of that before the execution of his authority and this is good for without notice it is no revocation where revocation is the act of the party The case is entred Trinity 7. Jacobi Rotulo 2629. Vivion against Wild. Hillary 7. Jacobi 1609. In the Common Bench. Smallman against Powys A Man made a Lease for life rendring Rent and after the Lessor by Indenture in consideration of fifty pound deviseth and granteth the Reversion to have from the day of the date for 99. yeares rendring a Rent also which was lesse then the first Rent and the Grantee of the reversion destraines for the rent reserved upon the Lease for life being behind and the sole question in this case was if the reversion shall passe without Attornment and it was said that in all cases where a use may be raised by the Common Law and that it shall be performed by order of Chancery that in these cases the use shall be executed by the Statute of 27. H. 8. of uses and one case was cyted by Harris Serjeant 14. and 15. Eliz. where the Brother was Tenant in tayl the remainder to his Sister in tayl the Brother by Deed which was Indented in parchment but made in the first person and no mention of Indenting in the Deed and the Deed was Inrolled withâ—… three moneths and after Livery and Seisin was made and it wâ—… adjudged that the Deed enures as a Bargaine and Sale and that nothing passes by the feoffment so that it was no discontinuance but that the Sister might enter after the death of her Brother without Issue Coke cheife Justice said that it was a good Bargain and Sale though that the words Bargain and Sell were not in the Deed but he conceived if a Letter of Attorney be incerted in the Deed so that it may appear that the intent of the parties is that it should not enure as a Bargain and Sale but as a feoffment there it is otherwise so if a man covenants to stand seised to a use if it be in consideration of money and the Deed is inrolled there this shall enure well as Bargain and Sale as it was adjudged in Bedels case 7. Coke 40. a. but the Statute of 27. H. 8. of inrollments doth not extend to a Tearme for the words of the Statute are that no freehold shall passe c. But it seemes in the principall case that the Statute of uses executes the use which is raised by this Grant and that the Grantor shall stand seised c. And all the Justices insisted strongly upon the Limitation of the Estate from the day of the date of the Grant and the Reservation of the Rent immediatly and upon this concluded that it was the intent of the parties that the Grantee should have the Rent reserved upon the first Lease and should pay the Rent reserved upon his estate and that when words of diverse natures are incerted in one conveiance the Grantee hath election to use which of them that he will as it appeares by Sir Rowland Haywards case and by Danyel if a man makes a Bargain and Sale in english and makes Livery Secundum forma Chartae this shall not be good But if it be in Latine otherwise it is for this word Vendo is compounded of Do and it is an apt word for Sur. that Livery might be made And agreed all that the reversion passes well without Attornment and that these words Demise and Grant shall be taken and enure to a Bargain and Sale and Judgement was given accordingly A man made a Lease for yeares to two if they lived so long and it was resolved by the Court that this determines by the death of one of them according to the resolution in Bradwells Case 5. Coke 9. a. and Judgement was given accordingly and there the case of Trupenny was recited which was this Lands was let to one for one and
to viewers and searchers this doth not abridge the power of the Alneger for this is but an addition of greater care and diligence and by the statute of 39. and 43. Eliz. If upon a search they find any forfeyture they shall have it but if they do not find the Alneger may find it and then the King shall have it And to the Second he answered that true it is for every 64. of clothes the Alneger ought to have foure pence for his Fee and though that some peeces of cloth are more broade then others yet the lobour of the Alneger to measure them is all one So he concluded and demanded Judgement for the plaintiff Hillary 7. Jacobi 1609. In the Common Bench. Rutlage against Clarke IN Account the Plaintiff declares that the Defendant hath received of his money by the hands of a stranger to give an account The Defendant pleades in Bar that he received to deliver over to a stranger the which he hath done accordingly without that that he received it to make any of account otherwise then in this manner and it was resolved that the Plea in Bar was good without traverse for when he received the money he is to deliver it over or to give an account of it to the Plaintiff so that he is accountable Conditionally but the traverse is repungnant to the Plea though it be otherwise or another way against the Book of 9. Ed. 4. 15 See 41. Ed. 3. 7. 1. Ed. 5. 22. H. 6. 49 21 Ed. 4. 4. 66 1. Ed. 5. 2. that it is a good Bar without traverse But Brooke in abridging the case of 21. Ed. 4. 66 in Title of account saith that it seemes that the traverse ought to be without that that he was his receiver in other manner and there and in the Book at large are that Justices that is Coke Nele and Vavasor against Bryan that it ought to be traversed But here in the principall case it was adjudged that the traverse made the Plea ill Hillary 7. Jacobi 1609. In the Common Bench. Dunmole against Glyles THE case was this Grand-Father Father and Son the Grand-Father was possessed of a Tearme for two and twenty yeares to come devised to the Son the Land for one and twenty yeares and that the Father should have it during the Mynority of the Son and makes the Son his Executor and dies the Son being within the age of one and twenty yeares the Father enters into the Land and makes a Lease for seven yeares by Indenture untill the Son came to full age the Father makes his Son his Executor and dies The Son enters by force of the devise made by the Grand-Father And the question was if the Son shall avoid the Lease made by his Father and it was agreed that he might in proofe of which a Judgement was cyted which was in the Kings Bench Mich. 5. of Eliz. Rot. 459. or 499. In the Prioresse of Ankoresse Case where a Tearme was devised to one and if he died within the Tearme then to such of the Daughters of the Devisor which then should not be preferred the Devisor dieth the Tearme was extended for the Debt of the first Devisee and then he died the extent was avoided by the Daughters not preferred and they grounded their Judgement upon the former Judgements in Weltden and Eltingtons case and Paramores and Yardleys case in the Comment and for that the Law intends that a Devisor is Inops consillij and for that his devise shall have favourable construction according to his intent appearing within the devise and it was said by Coke that in many cases a man may make such an Estate by devise that he cannot make by an Act executed in his life time as it was adjudged in Graveners case where a man devises his Lands to his Executors for payment of his Debts that there the Executors have Interest that there the Executor of Executors shal have that and such Estate cannot be executed by Act in the life of the Devisor and so it was concluded by them all that the Son shall avoid the Lease made by the Father for the Devise was Executory and doth not vest till the full age of the Son and then Executor and shall avoid all Acts made by the Father by which Judgement was given accordingly Freeman against Baspoule See 9. Coke 97. b. THE case was this A. was indebted to B. and they both died the Heire of A. for good consideration assumed to the Administrator of B. that he would pay to the said Administrator the said Debt and for the not payment of that according to the Assumption the Administrator after brought an Action and then the said Heire and the Administrator submitted themselves to the award and arbitrement of C. and became bound one to the other to stand to the award accordingly so that the said Arbitrator makes his award of all the matters and controversies between them before such a day C. the Arbitrator before the day recyted the Assumpsit and the debt as aforesaid and agreed that the Heire should pay the Administrator so much money and that published according to their submission And in Action upon the case Nullum fecit Arbitrium was pleaded and upon demurrer it was objected that the award was void First For that it was for one party only and nothing was arbitrated of the other and to prove this the Book of 7. H. 6. 6. was cited and 39. H. 6. 9. see 2 R. 3. 18. b. And this also appeares by the pleading of an award for he which pleades it that he hath performed all things which are to be performed of his part And that the other pleades performance of all thing which are to be performed of his part by which it appeares that there ought to be performance of both parts and by consequence one award to both parties according to 22. H. 6. 52. Secondly that the award was void for that that the submission was of all controversies so that the Arbitrator delivered his award of all controversies c. And there was no award of the said Suit between the parties and for that he hath not made an Arbitrement of all controversies and by that the award was void and to prove that the Bookes in 4 Eliz. Dyer 216. Pumfreies award and 19. Eliz. Dyer 356. 39. and 39. H. 6. 9. Where it is said that if the submission were of all things and the Arbitrement of one only that is a void Arbitrement Thirdly For that it was not limited within the award at what day nor at what place the money should be paid by the Heire to the Administrator and for this cause also it shall be void for it ought to be payd immediatly and if the Heire cannot find the Administrator he forthwith hath forfeyted his Obligation and for that in this point it is uncertain and for that shall be void as it is in Samons case 5. Coke 77. b. Where
action is well maintainable Vi armis as Quare Impedit for disturbance by word or presentment by word And it is also found that the Defendants did take all the profits and that the Deputy of the Plaintiff came to the usual place where the Court was kept and that could not be intended to be out of the Mannor And so for these reasons he concluded that Judgement should be given for the Plaintiff And Coke cheife Justice argued to the same intent that is that the Plaintiff ought to have Judgment And first he conceived that the Patent is good notwithstanding the uncertainty that the Mannors are not named in what Counties they are either in England France or Ireland for the Mannor is named very certain by which it may be granted though it be in the Kings case as it appears by 32 H. 6. 20. where the King grants all Mannors Messuages c. which were parcell of the possessions of I. S. attaint and good And such grant was made to Charles Brandon Duke of Suffolke and adjudged good though that the person of a man is more incertain then the Mannor yet Id certum est quod certum reddi potest And 39 Ed. 3. 1. in the Abbot of Reddings case where a grant was made to the Abbot and his Successors that the Prior and Covent shall take the profits in time of vacation Fitz. Na. Bre. 33. b. And 23 Ed. 3. 20. The King grants to the Queen the Barrony and all Mannors c. till Iohn of Gaunt be able to govern himselfe and that shall be intended till the Law intends him able to govern himself and Mannor is very certain of which a view shall be awarded The second exception which was taken to the grant was for that that it was to take effect at the ful age of the Earl And after it is recyted in the Patent that he was of full age before the making of the Patent and so by consequence the Patent is to take effect from the time that it was past And to that he said that it shall be intended to the profits of the Office only for it appeares by the Patent that the Queene had granted it to another during his Minority That is the office And to the third mattter That is if hee cannot make a Deputy then he hath forfeited the said Office by the not using of it And to that he said it appeares by Waltons case 10 Eliz. Dyer fol. 270. That if a man grants a Fee pro concilio impendendo or keeping of Courts the Fee shall not be forfeited without speciall request to the Patentee to give Councell or to hold his Courts for hee doth not know if the Grantor will have his Courts held or not and so it is 39 H. 6. 22. Brewens case where it is also agreed that it shall be no forfeiture of an office without speciall request to hold the Courts or to give Councell But in the case of the Queen otherwise it is for she ought not to make demand in case of Rent nor Condition though that it be within the Statute of 32. H. 8. And yet it was argued in Sir Thomas Hennages case that if the King make a Lease for years upon condition to cease this shall cease without office upon the breaking of the Condition but a Lease for life shall not cease without office though that the Condition be broken And so if the King grants an Office for life this shall not be avoided without Office And he doubted the case of the Lease for yeares And also he agreed that the Grantee of a Stewardship cannot make Deputy to exercise his Office without speciall words in the Patent But if the Office be granted to him and his Heires or to him and his assignes it is sufâ—â—cient without other words to make a Deputy And also he sayd that the word Steward is the name of an Office and is derived of Steed and Ward which are Saxon words and intend the Keeper of the place which the party himselfe ought to hold and it appeares by Cambdem and Lambert And so the word Senescalls also signify for this is but a Custos sive officiarius loci See Fleta liber 2. chap. 72. Senescallum providebit Dominus circumspectum fidelem Modestum pacificum qui in consuitudinibus c. Jura Domini sui teneri c. Quique balivos suos instruere potest Cujus officium est curia maneriorum c. And a Deputy is a person authorised by the Officer in the name and right of the Officer and for all that he doth the Officer shall answer for he is but as a shaddow of the Officer But assignee is in his own right and he shall answer for himselfe and forfeiture by assignee of Tenant for life shall not be forfeiture of the reversion 39. H. 6. And he agreed that a Marshall Steward Constable Bayliff and such like cannot make Deputies without speciall wordes in the Grant as it appeares 39. H. 6. 11. Ed. 3. 10. Ed. 4. 14. 17. and 7. 21. Ed. 4. Nevills case in the Com. and Littleton And to the exceptions which have been taken to the Writ and Count he saith that an Action of Trespasse which is founded upon the case doth not lye Vi et armis where the point and cause is Action is supposed to be made Vi et armis and for that he takes difference between Causa causans and Causa causata for where the matter which is supposed to be done Vi armis is not the point of the Action But the cause of the Action there lies very well Vi armis But wherein the point of Action is supposed to be made Vi armis there the Writ shall abate As if a man brings an Action of Trespasse for casting dung into a River by which his Land is drowned in this case an Action of Trespasse upon the case Vi armis lyeth very well for here the casting in of the Dung is but Causa causans And the drowning of the Land is Causa causata 8. R. 2. And so disturbance to hold a Leet by which he hath lost his offerings 19. R. 2. 52. And the Earle hath election to have Trespasse or Assise though it be not Manurable As if a man prescribe to have seven pence of every Brewer which sells strong Beer for disturbance to have the seven pence Action upon the case lyes for this disturbance is Dissesin 15. Ed. 4. 8. 14. Ed. 3. 4. 1. Ed. 5. 5. 19. R. 2. Action upon the case 51. And to the objection which hath been made that disturbance found by the Jury is not the same disturbance which is mentioned in the Count for in the Count the disturbance is supposed to be made Vi Armis but the Jury do not find any distubance to be made Vi Armis But this notwithstanding it seemes that the Count is good As if a Sheriff enters a Franchise and executes
a man off an action of a higher nature 219 Vsage its exposition 222 Usitatum whom it doth advantage ibid Variance what 239 Valuable consideration out of the statute 102 Vnity of possession 26 Uoluntas donatores how to be taken 77 Vexation unjust remediable how 100 Vniversity of Oxford was removed for a certain time 244 Vniversity not locall ibid Variance what 245 W WAles councell and presidents Jurisdiction 29 Wast 46 150 168 Wittall who 37 Westminster 2 chap 35 expounded 92 93 94 95 Writs 147 Warrantia chartae 169 Warranty to a tenant pur view 191 Warrantia chartae not upon two deeds 56 Writ of error 137 208 Wife joyn with her husb in feoff what shall bind 141 Wager of law 255 FINIS Case for words You are a Bastard tried by the Countrey Judgement arrested because the Plaintiff did not averr that he was an Attonrney at the time of the words spoken Case for words which dâ—d amount to but petty Larceny For calling one Witch no Action will lie If Felony be committed good cause to arrest one for it but not to speak words to defame one A Feme covert cannot convert Action upon the casebrought upon a collateral consideration and good Judgement reversed by Writ of Error because Sheriffs name was omitted on the venire fac Case for words not actionable Gase for words A man shall not be punished for mistaking the Law Case for words The like The like for Words Judgement arrested because the Plaintiff omitted to shew in his Declaration the words were spoken of himself The Defendants Justification adjudged naught because he justified for words that were actionable To do a thing allowable by Law is no conversion The Defendants Justification amounted but to Noguilty and adjudged naught Judgement arrested for want of certainty in the Count. Judgement arrested for that the consideration was not valuable Case forwords for calling an Attourney Bribing Knave Judgement arrested being mis-tried An inuendo will not maintain an Action Difference between a promise executory and executed quod nota Non cul pleaded where Non assumpsit should have been pleaded and adjudged a good Issue Action of case for words upon the statute of 1. Jac. against Invocation of Spirits Ehe Imparlannce role supplied by the Issue being perfect Judgement arrested for not shewing the Letters of Administration Judgement arrested for that the Communication did not appear but by the Inuendo Action of the Case for calling a man mainsworn fellow Moved in Arrest of Judgement because no Demand alleadged but not allowed Judgement arrested for incertainty in the Declaration By a general Pardon both Punishment and Fault taken away Promise upon condition notice not necessary Nota. Judgement arrested for incertainty in the Count and for that the promise was made by an Infant Justification for calling a man perjured dis-allowed because he was t convicted Action of the Case will not lie for calling a Currier Barretor For this word Papist no Action will lie unless spoken of a Bishop Nota. Action of the Case for double prosecution of a fieri sac Upon a non est invent returned upon an Outlary where the party escaped the Plaintiff hath his Election where to bring his Action Judgement arrested for want of an Averment Judgement arrested for the incertainty of the Count. For collateral matters which are not Duties a Request is necessary The word Witch will not bear an Action An implied promise where it is upon the reality will not lie except upon a collateral cause An Indebitat assumpsit for money ruled good without expressing for what Action against the Sheriffs of London for discharging one who was arrested coming to defend a suit depending there The Court cannot discharge one arrested except he be arrested in the face of the Court. Judgement stayed for variance between the Count and Writ to inquiry Release by the Husband pleaded in Bar to an Action brought by the Wife after his Death for money to be allowed her after his Death and adjudged no Bar. Action for calling an Attourney Champertor The Roll mended after the Record was certified by Writ of Errour it being the Clarks misprision He is a forging Knave spoken of an Attourney actionable Implyed words will not beare an action Trover brought by Administrator as of his owne goods and adjudged good Demand and demall makes a Conversion The Sheriff justifies by vertue of a Process out of the Exchequer to levy of the Occupiers of S. Lands 59. s. arrear upon the said Lands Common appurtenant cannot be divided Mis-triall the Venn being mistaken Judgement arrested for a mistake of the Jury In consideration the Plaintiff would agree the Testators son should marry the Plaintiffs daughter adjudged a good consideration Rents arrear no Plea in Covenant Difference between Covenant and Debt to bring an Action Difference between Covenant and Debt to bring an Action Breach assigned in default of the Party that never sealed the Indenture of Covenants Covenant lies against the first Lessee upon breach of Covenant made by the Assignee Difference between Covenant and Debt Covenant upon a void Lease is good Action would not lie because if the Covenant was not performed Piracy is no excuse to perform a Covenant Judgement arrested for default in the Declaration A Covenant in Law shall not be extended to make a man do more then he can A Suit in Chancery no Disturbance Judgement arrested for defects in the Declaration Breach that one entred and shews not by what Title and naught Release cannot be given in Evidence upon a Plea that the Defendant was never a Receiver of the Plaintiffs Money In Account the Process are sum Attaint and Distress In Account two Judgements and upon a Nichil Process of Vlamy lies Account against a Baily local The Defendant may wage his Law if the Receit be per manus proprias Nota. In Account the Writ abates the Death Nota. Nota. Nota. Matter in discharge of the Actions shall not be pleaded in Bar. Nota. Nota. Judgement in Account upon a special Verdict Misprision of the Clerk amended after Verdict No Tenant at the time of the Writ purchased nor afterwards and if c. no Disseisin Note upon the Kings Grant View to be there where the Office is performed Another Writ brought and hanging a good Plea in abatement Assise taken by default against Harvey and the other Tenant pleaded in abatement of the Assise that there was a Quare impedit depending Nota. The King cannot create an Office to the Queen who may bring an Assise No Costs in a non-suit in Assise The Court was denied a Supersedeas the surmise being onely matter in suit Nota. A Writ of Covenant brought against more then acknowledged and prayed to be amended and denied Lease made to one during the life two if one die the Lease is ended Nota. A case of Jointure Nota bene Difference between Tenant at will and sufferance Joynt Debt and Contract cannot have several Pleas. Nota. Nota.
a Book that ought not be given in evidence the Court above cannot remedie it except it be returned with the Postea A release to Tenant at sufferance void Commoner cannot chase the Lords Cattell if the surcharge be Common The Statute of 13 Eliz. for non-residence a generall law Where Husband and Wife shall be joyned and where severed in Action The Venire facias vicious no damages in Partition If the Jury find a man guilty in Trespass for a foot where it is layd in an Acre good enough and so in all Actions where damages onely are to be recovered Nota. Error assigned because in trespass nothing was entred of the Fine c. where it was a continued trespass and part of it was layd to be after the Pardon Nota. Nota. If the verdict find the tenure in substance though not in manner and form it is good intrespasse Difference between Replevin and Trespass In a writ to enquire of damages the Plaintif is not bound to prove the property of goods but the value only Where of his own wrong without such cause shall be a good issue and where not The Defendant prescribed for a passage over Land and naught it should have been for a way Nota. If the Lord cut the Wood in which the Commoner hath Estovers he shall have an Action of the Case but not an Assise Nota. Nota. Nota. An action will not lie for the counter-part of an Indenture without a speciall grant Nota. A man cannot Justifie the digging of a mans ground in hunting a Badger Nota. Nota. One Venu out of two places in the same County Whether a Copyholder may lop the trees growing upon his Copy-hold and held he might The Copy-holder is in by custome which is above the Lords estate The Copy-holder shall have trespas upon the Case against the Lord for cutting down of trees Nota. Nota. Nota. Nota. Nota. Nota. Waste in the Tenuit for digging of Sea coals Custodes Brev. Capital Prothon Sedi ' Prothon Try ' Prothon Cliri ' Warr. Cliri argenti Regi Cliri Error Cic. lib. 1. de Invent. Rhet. Prohibition upon the statute of 23. H. 8. Chap. 9. Prohibition to the High Commissioners High Commission Prohibition Joynt prohibitions and severall Counts Prohibition upon the statute of Symony upon the stat of 31. Eliz. Prohibition upon the Statute of 32 H. 8. for the dissolution of the Hospitall of Saint Johns of Jerusalem For not setting forth Tythes Husband sue only Prohibition to the Cort of Requests Against Forreiner for Ornaments for the Church and for Sextons wages Admiralty Contract for retaining of Tithes Admiralty Prohibition At the Archess discussed in right of Office Prohibition Admiralty for staying ships for Ballast High Commissioners and their power in Ministring Oâ—th and taking obligation High Commission Clandestine marriage Admiralty Coâ—rt if a thing done beyond Sea shall be there tried Agreement by word â—…p back tithes Where a Prohibition shall be granted without Action hanging High Commissioners Alimony Adultery Houghton Shirley Barker Court of Admiralty's Jurisdiction Admiralty Prohibition Modus decimandi Prohibition to a Court Baron Replevin 2. Executors one refuses Waste 2. Executors one refuses Bargaine and sale upon Condâ—… Ravishment of Ward Mich. 〈◊〉 Jacobi Rot. 213. Common of Pasture Trespasse Ejectione firmae Common Recovery Judgement in Debt Accompt See the beginning fol. Debt by Executor Administrators during the minority of the Executor Action upon the Case for words Replevin Attornement of Tenant being under age of 21. yeares Shirley Harris Harris Montague Hutton Surrender after Statute acknowledged Executors sued and also the Heire Court of Equity Debt upon a Bill Harris Shirley Fealty gives Seisin of all annuall Services Atturney brings Action of Debt for Fees Survivor doth not hold amongst Merchants to have all Award void Action upon the Case for words Devise that Executors shall sell Land A Towne incorporated with the consent of the greater part Action on the Case for slander Action upon the Case for suing one in a Court which hath no Jurisdiction Prescription for Common for Beasts without number Priviledge out of higher Court Fine amended Feoffinent to a Son and Heir for a valuable consideration Avowry Teste of a Venire facias amended after verdict Ejectione firme Ejectione firme Dodridge Houghton Replevin Grant without date Obligation Accompt Information Dodridge Hanghton Montague Dodridge Dower Debt against Administrator Commission to the Councell in Wales Caveat to a Bishop If administraon to the next of blood cannot be repealed Action for words Trespasse for breaking a House and taking a Cow Haughton Barker Barr not good Copy-hold intailed Extent upon a Statute Summons in Dower Patent of a Judge of the Common bench Action upon the case for slander Haughton Barker Periured Actionable Trespasse for imprisonment Dodridge Hutton Coram non judice Judgement void Shirley Wynch Foster Arbitrement Lease by the Dean and Chapter of Norwich Hutton Haughton Office granted by a Bishop Assumpsit Wilt of Right Haughton Nicholls Dower of titâ—e of Wooll Attachment Executrix during nonage Nicholls Harris Copy-holder Harris Dodridge Coke Replevin Waste Informer Lybell Debt against Administrator Copy-hold Coke Revocation of Uses Dodridge Nicholls Dodridge Nichols Wynch Warburton Coke Common Recovery Obligation to perferme Covenants Arrest of Judgment Audita querela Wast Estrepement awarded Ejectione firme Refusall Lord of a Mannor inclose the Demesnes adjoyning to the Common Warrantia Charte Dodridge Nicholls Devise of a Lease Dodridge Harris Assent to a Legatee Remainder of a Chattell Sherley Debt by Obligation Request is necessary for his Rent though that he have a bond for performing Covenants Nichols Debt Wynch Warburton Debt against Executors Davis What acts doe make an Executor De son tort what not Barker Warburton Wynch Trespasse Harriot Nicholls Harris Coke 253 Eliz. Dyer 193. a. Wrensfords case accordingly Warberton Wynch Release Cinque Ports Tenant for life with warranty Nicholls Haughton Wynch Warburton Ayd granted Coke Wynch Verdict uncertaine Falkland What is so called Warburton Coke Quod non occupantur conceditur Debt against Administrator for Rent in the Debet and Detinet Chibborne Detinet onely 2. Heire charged in Debet and Detinet 3. Towse Crook and Harris Joynt Covenant shall survive Copy-holder shall hold charge Error Elegit Testatum where no Writ had issued Confirmation to a Copy-holder destroys Common Expresse Covenant qualifies Covenant in Law Prohibition Defendant re-enters after Possession delivered by Habere facias possessionem Custome among Copy-holders Nonsuit after Verdict Reservation of Rent Michaelmasse or ten dayes after Grant of Common extinct Exposition of Usage Ejectione firme Errour Abatement of a Writ by entry Markhams Grant Earle of Rutlands Patent Challenge Earl of Rutlands Patent Challenge Abatement Errour Variance Seisin Abridgment of the Plaint in Assise Yelverton Fenner Challenge prin Flemming What matter shall be assigned for Error after Judgement Variante Challenge Seisin Misnaming of a Corporation Walter Yelverton Fenner Flemming Prohibition Prohibition A married Wife cannot make a Letter of Attorney Replevin Warburton Justice Walmesley Re-entry after possession executed Slander of Attorney Grand Cape Petit Cape Waging Law Release Inn-Keeper in London Action of false Imprisonment Serieant Harris the younger Walter Walmesley Coke Priviledge Assise View Coke Walmesley Challenge Errour in a Fine Barwick Returne of Writs Idemptitas nominis Fine Infant Tayle Maintenance Habeas Corpus Prohibition Trespasse for Slander Party Jury of two Counties Action upon the Case for Slander Errour Covenant for Rent Continuance Assumpsit Consideration Debt against Executors Errour Ve. fa. hab Carpus Formedon in Remainder Challenge Partition Dures Action upon the case for slander Prohibition Will. Devise Priviledge Postea 218. Adjournment of Tearm Infant levies Fine brings Errour Action upon the Case Action upon the Case Debt for Obligation Hutton Dodridge Court Sheriff committed to the Fleet. Grant of a Rent Priviledge of London Harris Hutton Where the Owner of Wood may Inclose Hutton Arbitrement Submissior Revocation Devise and grant â—enures to bargaine and Sale Harris Lease to determine upon Limitation Grant of the King that the Burrough should be incorporated Bayle Suit begun hanging another Writ Casuall intire Services Harris Nicholls Foster Dauiell Warburton Walmesley Coke Trade with Infidels without License Prohibition to the Court of Requests Approvement of Common Walmesley Foster Action upon the Case for Slander Bankrupt actionable Grant of Reversion Error in Proclamation Forfeiture of Office of a Chiroghapher Release Error in a Writ of Dower Copy-hold Certificate of the Bishop Minister Arrested Grant of the King of Alnage Haughton Dodridges Statutes how to be understood c. Account Devise of a Teerme Award Submission Arbitrement Where the death of the Defendant in Execution shall be satisfactory Dodridge Certiorari Outlawry Hutton Foster Debt upon escape against whom Warburton Land extended at too high rate Walmsley Coke Harris Haughton Foster Justice Warburton Walmsley Coke Charta de Foresta Assise Office Trespasse Estovers Boote its signification c. Nicholls Walmesley Coke Fee when forfeited Trespass Grant le Roy.
Lessee for years or life surrender before the performance of the condition the Fee doth never increase as it is 14. H. 8. 20. and the Lord Chandois Case 6 Coke But the Estate tayl remaines after the condition performed and then hath the Fee dependant upon the Estate tayl and that there is a necessity that there shall be an office as it was in Nicholls Case in the Com because of the right and that after the condition performed then the Fee shall vest Ab Initio and this corporates together partly by the Letters Patents and partly by the performance of the condition and so it is in Butler and Bakers case that it is not a Grant in futuro but one immediate Grant to take effect In futuro see 2. H. 7. for the execution of Chantrey and Grendons Case in the Com. and 2. H. 7. If the King grant Land to J. S. for life the remainder to the right Heires of J. R. which is in life the remainder is good as well as in case of a common person and so he seemed that Judgement shall be given for the Plaintiff Walmesley Justice agreed that it shall be remainder and not reversion as if Lands begin to the Husband and the Wife and to the Heires of the Body of the Husband the Husband dies this is a remainder in the Heires Males and not a reversion for it cannot grow higher and it was not in the King as one distinct Estate before the Grant and Formedon in remainder lieth for it and though it be misrecited yet it shall be good and ayded by the Statute of Misrecitalls and grant of a thousand is suffered to convey the reversion of a thousand by the common Law and if the recitall were that it was a reversion depending upon the Estate tayl it was good without question and the King may grant five hundred reversions if he will and that the last Damus is ex certa scientia et mêre motu nostris Damus et concedimus that if the Patentee pay twenty shillings Tunc sciatis quod nos de ampliori gracia ea certa scientia et mero motu nostris concedimus c. and that the word Volumus will amount to a Covenant or a Release as 32. H. 6. The King by his Patent by these words Nolent that he shall be impleaded and this amounts to a release and so words which intends expresly words of Covenant may be pleaded as a Grant in case of the King as it is 25 Ed. 4 So is a common person license another to occupy his Land this amounts to a Lease of Land if the time be expressed so if a man grants to another that he shall have and injoy his Land to him and his Heires that by that Fee passeth And if the King grant reversion to begin at Michaelmasse the Grant is void for that it is to begin totally at Michaelmasse and doth not looke back to any precedent thing But if it relate to any precedent Act then that shall be good by relation and shall passe ab Initio see Com. Walsinghams Case 553. b. that in such case the performance of the condition divests the Estate out of the King and there is no difference in this case betwixt the King and a common person and agreed in the case of Littleton Where a man makes a Lease for yeares upon condition to have Fee that the Fee shall not passe till the condition be performed and with this agrees 2. R. 2. But if a man makes a Charter of Feoffment upon condition that if the Feoffee injoy the Land peaceably for fifteen years that the Feoffment shall be void In this case the Fee-simple determineth by the performance of the Condition and in this case the Fee passeth ab Initio by the Livery as in 10. Assise 18. Assise 1. 44. Assise 49 Assise And he agreed that the words Habeat et Teneat the Reversion passes and this is good Fee-simple and this refers to the first Damus et Concedimus and so concluded that he seemed that Judgement shall be given for the Plaintiff Coke cheife Justice accordingly and he conceived that there are two questions upon the substance of the Grant And to the first objection that hath been made that is that reversion was granted and increase of an Estate cannot be of a reversion and in all these cases which have been put they are of an Estate in possession and so is the case of Littleton also and he agreed that it shall not be good if it be not good ab Initio that though there be not other words then Reversionem predictam That it shall be good And to the second point upon the former He conceived that the Grant is but a Grant and that the condition is but precedent Limitation when the Estate of Fee-simple shall begin and so it is said by Montague in Colthurst and Brinskins Case in the Com. And further he saith that there are four things necessary for increasing an Estate First that it ought to be an Estate upon which the increasing Estate may increase Secondly the particular Estate ought to continue for otherwise it is grant of a reversion in Futuro Thirdly That the Estate which is to increase ought to vest by the performance of the Condition for if there be disturbance that it cannot then vest then it can never vest Foutthly that both the Estates as well the particular Estate as the Estate which is to increase ought to have their beginning by one self same Deed or by diverse Deeds delivered at one self same time And to the first and to prove that he cyted 44 Ed. 3. Attaint 22. Lessee for yeares upon condition to have Fee granes his Estate the Fee doth not increase upon the performance of the condition for then it shall passe as a Reversion and so the particular Tenant surrenders his Estate as it is sayd 14. H. 8. For if the Privity be destroyed the Fee will never increase but there is no such â—ycity but that if the substance of the Estate remains though it doth not remain in such form as it was at the first Reversion the Estate may well increase as if Lands be given to the Husband and wife and to the Heirs of the Husband upon the Body of the Wife to be begotten the Wife dies and the Husband is Tenant after possibility of Issue extinct yet he may well perform the condition for the Estate remaines in substance and with this agrees 20 H. 6. Ayd and so it is if a Lease be made to two for years upon condition to have fee one dies the other may perform the Condition and shall have Fee-simple as it is agreed by 12. Assise 5. the reason is that the privity remaines and the Estate also in substance Thirdly As to that also it seems that it ought to vest upon the performance of the condition which is the time limited for the beginning of the Estate and if it do not vest
twenty yeares if the Husband and wife and the Issue male of their Bodies so long live and it was there adjudged that the Lease doth not determine during the lives of any of them for in this disjunctive it is referred to an Intiâ—e Sentence and is as much as if he had sayd if the Husband or the Wife or the Issue of their Bodies so long live Hillary 7. Jacobi 1609. In the Common Bench. Borough of Yarmouth THE King John by his Letters Patents granted that the Burrough of Yarmouth should be incorporated and the grant is made Burgensibus without naming of their Successors and also he granted Burgensibus teneri placita coram balivis and in pleading it was not averred that there were Bailiffs there and it was objected that the Burrough cannot be incorporated but men which inhabite in that but to that it was resolved that the Grant is good and the Lord Coke sayd that he had seen many old Grants to the Citizens of such a Town and Good and so that the Grant Burgensibus that the Bâ—rrough should be incorporated being an old Grant should have favorable construction but the doubt was for that that it was not averred that there were Bailiffs of Yarmouth and if a Grant to hold Pleas and doth not say before whom the Grant is voyd according to 44 Ed. 3. 2 H. 7. 21 Ed. 4. and for that it was adjourned But the opinion of all the Court was that the Grant made Burgensibus was good without naming of their Successors as in the case of Grant civibus without more Note that Executors or Administrators shall not finde speciall Bail for the Debt of the Testator though that the debt be for a great sum as three thousand pound or more for it is not their Debt nor his Body shall not be lyable to execution for that 43 Ed. 3. Suit was commenced hanging another Writ it is a good Plea though that the Writ was returnable in the Common Bench and the last Suit was begun in a Base Court but if so be and doth not appeare to this Court that the Plaintiff begun suit in a base Court for the same Debt for which the Suit is here begun Attachment shall be awarded see 2 H. 6. 9 H. 6. but this ought to appear to the Court by Affidavit c. Hillary 7 Jacobi 1609. In the Common Bench. Chapman against Pendleton IN second deliverance the case was this A man seised of a house and fifty Acres of Land held by Rent fealty and Harriot service enfeoffs the Lord of three Acres parcell of the Land and after infeoffs the plaintiff in this Action of three other Acres and upon this rhe sole question was if by this Feoffment to the Lord of parcell Harriot service is extinct or not Harris Serjeant conceived that the Harriot remaines for he sayd that it is reserved to the Reversion of the Tenure but it is not as anuall Service but casuall and it is not like to rectify for that it is incident to every service And by 43 Ed. 3. 3 It is no part of the service but Improvement of the service And Bracton in his Tractate De Relevijs 2 Booke 2 7. saith that Est alia prestatio vocata Harriot c. Que magis fit de gratia quam ex Jure and it is not like to a releife see the Booke at large and he agreed that if the Tenant had made fifty severall Feoffments to fifty severall men that every of them shall pay a severall Harriot as it appears by Bruertons Case 6 Coke 1. a 34. Ed. 3. Harriot 1. 2 Ed. 2 Avowry 184. 〈◊〉 Ed. 2. Ibidim 206. 11 Ed. 3. Avowry 101. 24 Ed 3. 73. a 34 Assise 15. 22. Ed. 4. 36. 37. 29 H. 8. Tenures 64. But he grounded his Argument principally upon Littleton 122. 223. Where it is sayd that the reason why Homage and Fealty remaine if the Lord purchase part of the Tenancy is for that that they are of annuall Services and it seemed to him that Littleton is grounded upon 7 Ed. 4. 15. Extinguishment 2. 8 Ed 3. 64. 24. Ed 3 B. Apportionment last case which accords the reason and upon this he concluded that for that that the Harriot is not annuall it shall not be extinct by the Feoffment but remaines but he agreed if a man makes a Lease for years rendring Rent and parcell of the Land comes to the Lord the Rent shall be apportioned if it be by Lawfull means as it appears by 6 R. 2. F. Quid Juris clamat 17. Plesingtons Case and 24 H. 8. Dyer 4. 1. Rushdens case by which c. Nicholls Serjeant that it hath been agreed that it is intire service and that then he concluded upon that that it shall be of the nature of other intire services as it apperrs by 2 Ed. 2. Avowry 184. and 34 Ed. 3 F. Harriot 1. 5. Ed. 2. Avowry 206. And he agreed that in the case of Littleton the Homage and Fealty remain and the escuage shall be apportioned but this is not for the reason alledged in Littleton that is for that that they are not annuall services but for that that the Homage is incident to every Knights service and as the Lord Coke sayd fealty is incident to every service in generall and the Tenant shall make Oath to be faithfull and loyall to his Lord for all the Tenements which he holds of him and the reason for which the Escuage shall be apportioned is for that that it is but as a penalty which is inflicted upon the Tenant for that that he did not make his services as it appears by the pleading of it and shall be apportioned according to the Assesment by Parliament and by 22 Ed 4. It appears that this purchase by the Lord is as a release and if the Lord release his services in part this extincts the services in all and he sayd there is no difference where an intire service is to be payd every third or fourth year and where it is to be payd every year as to that purpose and yet in one case it is annuall and in the other it is casuall and yet in both cases if the Lord purchase parcell of the Land of the Tenant all the intire services shall be extinct and gone though that they are to be performed every third or fourth year by which c. Foster Justice that the Harriot is entire service and for that though that it be not annuall it shall be extinct by purchase of parcell of the Tenancy by the Lord as if a man makes a Feoffment with warranty and takes back an Estate of part the warranty is extinct as it appears by the 29. of Assise so if a man hold his Land by the service to repaire parcell of the fence of a Park of the Lords and the Lord purchase parcell of the Tenancy the Tenure is extinct as it appears by 15 Ed. 3. And it is