demurred and it was moved that the Traverse was not good but the Defendant ought to say that the Plaintiff did not require him modo forma but the Exception was not allowed but the Traverse was holden good by the whole Court and Iudgment was given for the Plaintiff VI. Elizabeth Dormer 's Case Trinit 32 Eliz. In the King's-Bench ELizabeth Dormer was indicted upon the Statute of 23 Eliz. of Recusancy and Exception was taken to the Indictment 1 Len. 241. because that these words of the Statute were omitted out of the Indictment viz. non habens aliquam rationabilem causam But the Exception was not allowed for Wray chief Iustice said That upon conference betwixt himself and all his companions it was resolved by them That those words need not be put into the Indictment but are to come on the other side Another Exception was taken to the Indictment That she being of the age sixteen years refused to come to any Church contra formam Statut. 1 Eliz. in malum exemplum c. contra formam Statuti in hujusmodi casu editi provisi and the Statute of 1 Eliz. doth not speak of sixteen years but the same is mentioned in the Statute of 23 Eliz. Fenner was of Opinion that the last Contra formam Statuti should be referred to the Statute of 23 Eliz. Wray contrary and that it should be referred to the Statute of 1 Eliz. It was adjourned VII Cranmer 's Case 16 Eliz. In the Common-Pleas THE Case was That Thomas Cranmer 1 Anders 19. More Rep. 100. 1 Len. 196. 3 Len. 20. Dyer 309 310. late Archbishop of Canterbury made a Feoffment in Fee to the use of himself for life without impeachment of Waste and after his decease to the use of his Executors for twenty years and after the twenty years to the use of his Son and Heir in tail And afterward Thomas Cranmer was attainted of Treason and dyed so as he could not make Executors but dyed intestate without any assignment Office Executors 118. Note the limitation was to his Executors and Assigns Queen Mary claimed the term limited as aforesaid and granted the same over the Heir in tail entred and Leased the same for years the Patentee entred and the Lessee of the Heir of the Tenant in tail brought Ejectione firmae Manwood All the doubt of this case is If the said term was in Tho. Cranmer so as he might forfeit it And he conceived that the said term was in Tho. Cranmer and that he had not power onely to dispose of it but also had possession of it 11 H. 4. 186. Scire facias 67. And Br. Annuity 17. Such a Grant is good and effectual and if he do not grant it his Executors shall have it and yet the term was not limited to him but he shall have it by implication of Law. 39 E. 3. A Lease was made to one his Heirs and Assigns during his life and one year after the Executors shall have the said term after the death of the Lessee yet the said term was not limited to him 7 E. 3. A Lease made for term of live and a year after in that case the term is conjoyned unto the Estate for life by the act of the Grantor himself and there is a difference when the Remainder is joyned to the particular Estate by the act of the Grantor and by any Purchase Grant or any act after for in the first case the Remainder shall be executed but in the latter not A Lease for life the Remainder in tail the Remainder to the right Heirs of Tenant for life he in the Remainder in tail dyeth without issue in the life of Tenant for life now the Fee is executed to the Freehold c. and the Heir shall not have a Scire facias where such conveyance is made by Fine See 17 E. 3. 29. In a Cui in vita A. Executor of B. came and said that the Land in demand was Leased to the said B. for the term of his life the Remainder for the term of eight years to his Executors and prayed to be received and they were received See 19 E. 3. A Lease was made for life to A. the Remainder to his Executors for twelve years the Lesse for life died the Executors died there it is agreed that the Executors of the Executors should have an Action of Covenant if they be ousted And see 20 E. 3. Quid juris clamat 31. A Lease is made to A. for life and if A. dieth within twenty years that his Executors shall have the term until the end of such term and in a Quid juris clamat against A. he saved his term by protestation which proves that the term was quodam modo in him 49 E. 3. A Lease for life unto A. the Remainder to his Heirs and Executors for twelve years and afterwards the Lessor confirms the Estate of the Lessee for life to have and to hold the Land to him for life and thirteen years over to his Executors the Lessee deviseth the term and the Devise holden good which proves that the term was in him Harper Iustice contrary Many cases put before may be answered for in the said case the term is limited to begin immediately and not by way of Remainder or after the death of the Lessee and then the Executors in the life of the Testator are not known nor able to seek any thing by the name of Executors and therefore that term shall take its beginning in the life of the Testator But in the Case at Bar the term is limited to the Executors after the death of the Testator Co. 1 Inst 54. b. and the Executor takes the term as a Purchasor and he hath it not as a Chattel of the Testator but as his own Chattel And in the Case of Receipt before cited the Executor shall be received as Executor for the term was limited to him as Executor And here the Statute of 27 H. 8. 1 Cro. 666. is to be considered for it extends as well to Chattels as to Freehold and the Statute doth execute the possession to the use limited for years as for life or in Fee and here the use is limited to the Executors and not to the Testator and therefore it shall not be otherwise transferred And therefore if a man seised in the Right of his Wife discontinueth and afterwards the Discontinuee makes a Feoffment in Fee unto the use of the said Husband and Wife for their lives in that case the Wife shall not be remitted for the Statute doth transfer according to the use and the use was limited for their lives therefore they shall not be in of another Estate Dyer chief Iustice to the same intent The Feoffor i. Thomas Cranmer limits all the uses and therefore he shall not have that which he hath limited and it is in the nature of a Reservation which shall be taken strictly and very strong against him who
that Writ is a Praecipe quod reddat which doth not lie but against a Tenant of the Freehold And such is the opinion of Tilney 7 H. 4. 43. That if the Guardian holds in the Lands at the full age of the Heir or if the Tenant for years after the term expired holdeth over the Lands their Estates shall be adjudged a Fee. And in our Case here he doth not claim to hold in at the will of the Lessor for he hath done an act contrary to the will of the Lessor For he being Lord of the Manor in manner as aforesaid 3 Cro. 302. hath granted Estates by Copy and it is holden 12 E. 4. 12. by all the Iustices That if Tenant at will or Tenant at sufferance at will makes a Lease for years that the same is a Disseisin to the Lessor and the Tenant at will thereby gains the Freehold and the reason of the Book seems to be because he claims to hold a greater Estate than of right belongs unto him The second point was If Tenant at sufferance might grant Copies and he said that he might and such grant should be good because he is in by lawfull means and an Assise doth not lie against him as in the Book of 22 E. 4. 38. before and he is Dominus pro tempore And this Case is not like to the Cases where Copies are made by Abators or Disseisors for the Law doth adjudge that Copies made or granted by them are void and his act here as a Tenant at sufferance of making and granting of the Copies stands with the custome of the Manor which warrants them as in the Case of Grisbrook and Fox if an Administrator made by the Ordinary sells the goods of the Intestate and with the money thereof arising payeth the debts of the Intestate and afterwards he who was made Executor proves the Will he shall not avoid such sale of the goods because he hath made it according to Law and hath done no more than an Executor is compelled to doe So 12 H. 7. 25. b. If a Baily cut down trees to repair an ancient pail the same is good So 4 H. 7. 14. b. If he payeth a Quit Rent it is good And note 4 Mariae Br. Tenant by Copy 27. That the Lessee of a Manor in which there are Copyholds after the death of the Copyholder may admit the Heir of the Copyholder to the Land and so he may doe who hath but an Estate in the Manor durante bene placito and yet it seems by the Book that such a Tenant of the Manor cannot reserve and lessen Rent but he ought to reserve the ancient Rent or more Coke contrary And first he said that he who holdeth over the life of the Cestuy que use doth not gain any Fee where he comes in first by right for that he is but Tenant at sufferance 35 H. 8. Dyer 57. in the Case of the Lord Zouch Cestuy que use for life the remainder over in tail makes Lease for life of the Lessee he dieth the Lessee continueth his Estate and the opinion of the Iustices of the Common-Pleas and of others was that he is but a Tenant at sufferance for the Lease was not any discontinuance of the Remainder because he had authority by the Statute of Rich. 3. to make a Lease and that is intended of such Estate which he might lawfully doe and this is our Case and so it is adjudged already As to the second point I grant that Tenant for years or at will or at sufferance is Dominus pro tempore but there is a difference as unto granting of Copies by them For it was adjudged 25 Eliz. that they might grant Copies which are to be granted upon surrenders made by Copyholders As if a Copyholder doth surrender to the use of another they may accept of such a surrender and grant the Lands by Copy to him to whose use the surrender is made But if a Copyholder dieth they cannot grant voluntary Copies de novo And he said that Popham who argued the said Case in 25 Eliz. That this difference was agreed and so adjudged in one Sleer's Case And so 17 El. in the Case of one Stowley where the Case was That a Manor was devised to one and the Devisee entred and granted Copies and afterwards it was found that the Devise was void and it was there holden that Copies made by such Devisee upon surrenders were good and were not to be avoided but contrary of Copies made after the death of Tenants upon voluntary grants I grant that when Cestuy que use dieth the Estate for life is utterly void and gone and therefore he is in by wrong but he cannot thereby gain so great an Estate as a Disseisor because he came in at the first by right Atkinson put a difference betwixt Tenant at will and Tenant at sufferance for Tenant at will shall have aid but contrary of Tenant at sufferance as the Book is 11 H. 4. a Release to Tenant at will is good contrary to Tenant at sufferance when after the death of Cestuy que use he holdeth over he hath some interest scil to this purpose that he shall not be a wrong doer for he is neither Abator nor Desseisor therefore not a wrong doer and then if he be in by a right or rightfully he is then Dominus pro tempore and then the grants made by him by Copy are good 7 H. 7. 3. Tenant at sufferance was to justifie the distraining the cattel of another damage feasant Coke True it is the beasts of a stranger but not of the Tenant of the freehold Gawdy Iustice The Lessor cannot have Trespass against him before entry not because he is not a wrong doer but because it is his folly that he doth not enter All the Iustices did hold with the Plaintiff against the Copy granted and that he which granted it was but Tenant at sufferance and not a Desseisor nor had gained the Fee because he came in first by right And therefore they awarded that if the Defendant did not shew better cause that Iudgment should be entred for the Plaintiff LX. Trin. 29 Eliz. In the Exchequer IN the Exchequer Chamber there was this Case An Indenture Tripartite was betwixt three A. was one of them and he covenanted with them Et quolibet eorum And the Covenant was that the Land which he had aliened to one of them was discharged of all incumbrances and he to whom the limitation of the Lands was but a Writ of Covenant sole Buckley argued that it was well brought and cited the Case of 6 E. 2. Br. Covenant 49. where one covenanted with twenty to repair the Sea-banks and he did not repair against two of them and they two brought a Writ of Covenant solement and the Writ holden maintainable because they onely were damnified and so he said in this Case But notwithstanding this it was afterwards 5 Co. 18. viz. M. 30 Eliz.
had also bona catalla felonum fugitivorum and at the payment the Lord St. John claimed the money But all the Barons of the Exchequer were clear of Opinion That the Lord St. John could not have the money for the place of payment nihil operatur but the Obligation is the substance which came to the Lord of Northampton within the Isle of Ely. Popham the Queens Attorny claimed the money for the Queen for the Lord of Northampton cannot have it for by the general words of bona catalla felonum things in Action do not pass but by express words they well pass otherwise not And therefore day was given to the Lord of Northampton to shew his Letters Patents LXXXII Ards and Smith 's Case Mich. 30 Eliz. Rot. 2737. In the Common Pleas. 3 Co. 8. EDward Ards brought a Replevin against Smith and Reading the Defendants made Conusance as Bailiffs to Robert Chamberlain and shewed That one A. was seised of the Manor of Keney in Fee whereof the place where is parcel and so seised gave the said Manor to Richard Chamberlain and Sibil Fowler and to the Heirs males of the said Richard Richard and Sibil intermarry and have issue Edward Richard dieth Sibil dyeth Edward hath issue Leonard and dieth Leonard hath issue Francis and dieth Francis hath issue Robert in whose Right the Conusance is made and dieth Robert entreth The Plaintiff in bar of the Conusance sheweth That one B. was thereof seised and thereof enfeoffed one Cottesford then Master of Lincoln College and the Fellows thereof after which the said Leonard Son and Heir male of the said Edward 25 H. 8. did release to the said Master and Fellows with warranty the said Robert in whose Right the said Conusance is made being Heir male of the said Robert and demanded Iudgment if against that warranty c. The Defendants confess the Gift before to the said Richard and Sibil and that they had issue the said Edward but farther shewed That after the death of the said Richard Sibil and Edward her Son leased the said Manor for years to one Mascal who entred and was possessed Edward suffered a common Recovery unto the use of the Recoverors who entred and ousted the Lessee and enfeoffed the said B. who enfeoffed the said Master and Fellows the Lessee re-entred Sibil died Leonard Son and Heir apparent of Edward released to the said Master and Fellows with warranty Edward died Leonard died and thereupon a Demurrer was by the parties and the matter was If this Recovery being suffered by him in the Remainder in tail upon an Estate for life the Recoverors entring upon the Lessee for years of the Lessee for life and putting him out and afterwards the Lessee for years re-entring If now any Estate did remain in the College after the Re-entry which might work a Release Snag Serjeant argued That a sufficient Estate did remain in the College upon which a Release might enure i.e. an Estate to begin after the death of Sibil and the expiration of the term for years and although rei veritate Edward was not Tenant of the Freehold at the time of the Recovery yet such an exception doth not lie for the Issue and to that purpose he cited the Opinion of Fairfax 12 E. 4. 14. Shuttleworth Serjeant contrary This Recovery works nothing but by way of Estoppel and Conclusion and therefore the issue in tail may well disclose the matter and avoid such Recovery and the better Opinion in the Case cited before 12 E. 4. is That such a Recovery against such a person is utterly void which see there by â—ittleton Choke and Brian 14 E. 4. 2. and also 28 Ass 17. and Dyer 8 Eliz. 252 253. Land conveyed to the Husband for life the Remainder to the Wife in tail the Remainder to the Right Heirs of the Husband and Wife The Husband and Wife suffer a common Recovery the Husband hath issue and dieth and afterwards the Wife dieth the issue shall avoid the Lease and Recovery See also the Case betwixt Hare and Snow Plow 20 Eliz. 514. where a common Recovery was had against Tenant in tail and his Wife whereas in truth the Wife had nothing in the Land whereof the Recovery was suffered It was holden that the issue in tail or any other person might shew the truth of the matter for he shall not be bound by any Estoppel which his Father hath admitted by joyning in Voucher with his Wife for he is not subject to the Estoppel and therefore it was holden That if the Wife in such case might sue Execution to have in value yet the Son in tail might oust him of it So 8 H. 4. 122. a Praecipe is brought against Tenant in tail who prays in aid of a stranger as Tenant for life who enters into the aid and bars the Demandant and afterwards the Tenant in tail dieth his issue is at large to claim the estate-Estate-tail although the mouth of his Father was estopped as to it So Tenant in tail brought a Quod ei deforceat and counted upon an especial tail whereas in truth it was a general tail and recovereth and dieth the said Recovery shall not conclude the issue See 33 H. 6. 18. And in our Case when the Recoverors enter by force of the recovery the same is a wrong to the Lessee for years and also to the Tenant for life for the one is ejected and the other disseised and therefore the Re-entry of the Lessee doth defeat all the Estate which was in the College under that Recovery and here the Entry of the Lessee for years shall avoid all the Estate which was conveyed to the College by the Recoverors See 44 E. 3. 30 31. Bassingborn's Assise Land is given to A for life the Remainder to B. for life the Remainder to C. in Fee A. aliens in Fee the Ancestors collateral of him who hath the Fee doth release to the Alienee with warranty B. enters here the whole warranty is lost and all the first Estate is recontinued So in our Case by this Entry of the Lessee the whole Estate of the College under the Recovery is defeated so as nothing remains in the College upon which the Release can enure and then there is no warranty in the Case And as the Case is here Edward who suffered the Recovery dieth before the descent of the warranty by the death of Leonard by whom the Release with warranty was made by the death of which Edward the Interest which the College had in the said Manor by the said Recovery and the Estoppel of it was determined and utterly gone and then the warranty descending afterwards cannot attach upon the possession which was at the time of the warranty made which was by the conclusion which by the death of Edward is determined and removed by an Eign Title i. the Entail As if Tenant in tail doth discontinue the Discontinue is disseised Tenant in tail releaseth with warranty to the
Disseisor the Disseisee entereth in the life of Tenant in tail who afterwards dieth the warranty works nothing for the cause aforesaid And also he put this Case Tenant in tail of Land grants a Rent-charge in Fee and an Ancestor collateral releaseth to the Grantee with warranty and dieth the Tenant in tail dieth now the issue is bound but if Tenant in tail dieth before him who maketh the Release now the Rent is determined by the death of Tenant in tail and then the warranty cannot attach upon it At another day the Case was moved and conceived in these words scil Tenant for life the Remainder in tail Tenant for life leaseth for years a Recovery is had against him in the Remainder in tail living Tenant for life the Recoverors enter and oust the Lessee for years the Son and Heir of him in the Remainder in tail releaseth with warranty to him to whom the Recoverors have assured the Lands the Lessee enters he against whom the Recovery was had dieth the Releasor dieth c. It was holden that the Entry of the Lessee before that the warranty had attached upon the possession which passed had avoided the warranty And the Lord Anderson conceived That the Recovery should not prejudice the issue in tail but that the issue shall Fauxifie the same And if Tenant in tail be disseised and so disseised suffereth a common Recovery his issue shall not be barred quod fuit concessum per omnes And afterwards another matter was moved scil That the Release is pleaded to be made to Lincoln College by the name of Custodi sociis Scholaribus Lincolniensis Collegii in Oxonia where the true name of the College as is confessed by the Record in the Plea pleaded is Custos sive Rector Socii Scholares Lincolniensis Collegii in Oxonia c. It was adjourned See this Case reported 3 part Lincoln College Case LXXXIII Hall and the Bishop of Bath 's Case Mich. 32 Eliz. In the Common Pleas. HAll brought a Quare Impedit against the Bishop of Bath and others The Incumbent pleaded Quod ipse nihil habet nec habere clamat c. nisi de praesentatione Georgii Sidenham militis not named in the Writ and demanded Iudgment of the Writ upon which the Plaintiff did demur in Law And it was argued by Drew Serjeant for the Plaintiff That the Writ was well brought without naming the Patron for if a Quare Impedit be brought against the Patron and Incumbent and the Patron dieth 1 Leon. 45. pendant the Writ the Writ shall not abate 9 H. 6. 30. It might be that the Plaintiff did not know nor could tell who presented the said Incumbent but he findeth the Incumbent a Disturber by his Incumbency and if of necessity such Patron ought to be named then if such a Vsurper should die before the Writ brought he which hath cause of Action should be remediless And by Anderson and Periam the Writ is good enough for the reason aforesaid And Anderson put this case If A. wrongfully by Vsurpation doth present and his Clark is received and afterwards A. having gained the Patronage grants it over to B. Against whom shall the Quare Impedit be brought Walmsley Against B. which Anderson doubted LXXXIV Hughe 's Case Mich. 32 Eliz. In the Common-Pleas IN a Formedon the Writ was That A. Dedit Aliciae filiae suae and to J.S. and to the Heirs of their two bodies begotten and it was shewed in abatement of the Writ That the name of the Wife is put before the name of the Husband To which it was said by the Court that if such a Writ be brought against the Husband and Wife and the name of the Wife be put before the name of the Husband the Writ shall abate and if in the Case at Bar it had appeared That the Donees at the time of the Gift were Husband and Wife upon such a matter disclosed the Writ should abate but that doth not appear plainly to the Court. LXXXV Mich. 32 Eliz. In the Common-Pleas NOTE It was holden by the Court 1 Cro. 567. 3 Cro. 224. Post 189. That if a Writ of Dower be brought against an Infant who loseth by default at the Grand Cape that he may reverse the same by a Writ of Error but where an Infant appeareth by Guardian and afterwards loseth by default there he shall never avoid it for if any default be in the Guardian the Infant shall recover against him in a Writ of Deceit And afterwards the Iudgment in the first case was reversed LXXXVI Mich. 32 Eliz. In the Exchequer-Chamber NOTE In the Exchequer-Chamber before the Lord Chancellour The two chief Iustices and the chief Baron a Writ of Error was cast upon a Iudgment given in the Court of Exchequer and it was agreed Quod propter absentiam Dom. Thesaurarii Angliae They ought not nor could receive the said Writ and the Statute of 31 Eliz. doth not help the matter for that extends but to discontinuances which before the Statute many times hapned for the not coming of the Chancellour or Treasurer and not to give Conusance in a Writ of Error in the absence of the Treasurer c. LXXXVII Lacy and Fisher 's Case Mich. 32 Eliz. In the Common-Pleas IN a Replevin by Lacy against Fisher The Defendant pleaded that the place where c. is called Spicold and holden of the Manor of Easthall by certain Rent and made Conusance as Bailiff of the Lord of the said Manor and issue being joined hereupon It was tried by the Iury of the Visne of Spicold and it was moved in arrest of Iudgment that the issue was mis-tried For the Visne ought to have been of Spicold and Easthall also Web and Richmond's Case And a Case was cited to have been adjudged accordingly betwixt Webb and Richmond M. 31 Eliz. in the same Court. LXXXVIII Corbet 's Case Mich. 32 Eliz. In the Common-Pleas THE Case was That an Action of Debt was brought by original Writ against an Administrator in another County than where the Administrator was dwelling and before notice of that suit he paid divers other debts of the Intestate due by specialties so as he had not Assets to pay the debt in demand having Assets at the day of the Teste of the original and now the Defendant appearing pleads the same special matter and concluded And so nothing remained in his hands And it was holden per Curiam to be a good Plea See 2 H. 4. 21 22. LXXXIX Sir William Pelham 's Case Pasch 31 Eliz. In the Exchequer 1 Co. 41. THE Case short put was this A. Tenant for life of a Messuage c. the remainder in tail to B. with divers remainders over A. by Deed indented and enrolled bargained and sold the Messuage c. so conveyed to Sir William Pelham in Fee who afterwards suffered a common Recovery thereof in which A. is vouched and so a common Recovery is had and executed and
all this was before the Statute of 14 Eliz. And if the said Recovery should bind B. who was in the remainder in tail or if it be a forfeiture was the Question Altham of Gray's-Inn argued that here is a forfeiture First it is to see if a common Recovery suffered hy Tenant for life who is also Bargainor in this case be a forfeiture or not by the Common Law if no Execution be sued upon the same Recovery Secondly If the Recovery be executed if he in the Remainder may enter for the forfeiture When Tenant for life bargaineth and selleth the Messuage Post 65. acc 1 Len. 264. 1 Inst 251. b. acc 1 Inst 330. b. c. although upon it an Estate in Fee be limited yet nothing passeth from him but that which he may lawfully pass and that was the Estate for the life of the Bargainor for such Estate onely might lawfully pass and here the Bargainee is but Tenant for the life of another and when with his own consent he suffers a common Recovery and that without right the same is a forfeiture By matter in fact a particular Tenant may commit a forfeiture as well as by matter of Record By matter in fact he cannot commit a forfeiture if the Reversion be not thereby pulled out of him in the reversion As if Lessee for ten years maketh a Lease for 1000 years the same is no forfeiture for by that the Reversion is not touched but if he in matter of Record doe any thing which sounds to the disinheriting of him in the Reversion although in truth it doth not touch the inheritance yet it is a forfeiture which see 39 E. 3. 16. If Tenant for life plead any thing against the right of him in the Reversion it is a forfeiture And by Finchden and Belknap he cannot plead to the right 5 Ass 3. Tenant for life is impleaded in a Praecipe by a stranger and confesseth the Action upon which the Demandant hath Iudgment the Lessor enters against whom the Demandant sueth Execution and the Lessor brought an issue and had Iudgment to recover for it is a forfeiture because the Tenant for life hath admitted the Reversion in another because it is an alienation to the disinheritance of the Plaintiff i. the Lessor 19 E. 3. t. Receit 14. where Tenant for life pleads in chief or doth not gainsay the Action of the Demandant or makes default by Covin he shall forfeit his Estate but if a Rent be demanded against Tenant for life and he render the same it is no forfeiture 22 Ass 31. Tenant for life is impleaded by Covin betwixt him and the Demandant and pleads in chief without aid prayer upon which Iudgment is given he in the Reversion may enter In a Quid juris clamat against Tenant for life who pleaded faulty traversing the point of the Action he in the Reversion shall not be received for in as much as the Tenant hath traversed the Action he is not within the Statute of West 2. of default Reddition but he in the Reversion may enter by the Common Law 22 E. 3. 2. In a Scire facias to execute a Fine against Tenant for life who pleaded to the Enquest whereas in truth the Land in demand was not comprised within the Fine and Iudgment is given for the Demandant in the Scire facias that he in the Reversion may enter In the principal Case here there is apparent and manifest covin for the Tenant for life is vouched without cause and this Recovery is by assent and is to the use of the Bargainee who is Tenant for the life of another and therefore by the Common Law he in the Reversion may enter before the Execution be sued And it is well known that these common Recoveries are used to dock a Remainder in tail and that was the scope of this Recovery And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat who voucheth a stranger the Demandant counterpleads the vouchee and it is found for him he in the Reversion hath no remedy but a Writ of Right and if such vouchee enters into the Warranty and loseth by Action tried or by default c. That Book is to be intended of a Recovery executed for there in such a case he in the Reversion may not enter but is put to his Writ of Entry by the Common Law vide Br. Tit. Forfeit 87. 24 H. 8. Tenant for life is impleaded and prayes in aid of a stranger he in the reversion may enter but if he doth not enter untill the other hath recovered then he cannot enter but he is put to his Writ of Entry Ad terminum qui praeteriit vel de ingress ad com Legem and therein shall falsifie the Recovery And there by Brook Voucher of a stranger is not a cause of forfeiture for he doth not disaffirm the Reversion to be in the Lessor And he vouched 24 E. 3. 68. where Tenant for life pleaded in the Right without aid prayer and so he argued That before execution he in the Remainder might enter but after execution he is put to his Action but in our Case although Execution be sued yet he in the Remainder may enter for it is found by verdict That at the time of the Recovery he was within age and then no Laches of entry shall be imputed unto him and then he shall not be driven to his Action As if Tenant by the Curtesie maketh a Feoffment with Warranty and dieth and the same descendeth to his Heir within age yet he shall enter although that he had not avoided the Warranty in the life of his Ancestor And he also conceived that the Statute of 32 H. 8. cap. 31. did extend to this Case For Sir William Pelham the Bargainee was but Tenant for life and although that he be but Tenant for the life of another yet he is Tenant for life as fully as if he were Tenant for his own life The words of the Statute are or otherwise for the term of life or lives quo ad nom As upon the Statute of 20 E. 1. which gives receit i. de defensione juris the words are Cum quis aliquod Breve Dom. Regis impetret versus tenentem per Legem Angliae vel feodum talliatum vel sub nomine Dotis vel alio modo ad terminum vitae c. Also although that he who entreth at the time of the recovery was not next in the Remainder to the particular Estate yet he is within the Statute of 32 H. 8. for he was in the Remainder at the time of the Recovery and at the time of the entry he in the immediate Remainder was dead and then he next in Remainder See 15 E. 4. 9. by Littleton If I grant my services to one for life and he in a Praecipe brought against him plead in the Right or granteth unto another the said services in Fee the same is not any
forfeiture because it is not any discontinuance It will be objected That the words of the Statute of 32 H. 8. are That such Recoveries shall be utterly void and if so then he in the Reversion cannot be damnified and then no cause of forfeiture To that it was easily to be answered That where Tenant for life doth any thing which sounds to the disinheriting of him in the Reversion by matter of Record although it doth not devest or otherwise prejudice the Inheritance yet it is a forfeiture Coke contrary Here in our Case there is not any Covin Sir William Pelham the Bargainee he was deceived by the Bargainor for he did not know but that the Bargainor was seised in tail at the time of the Bargain and it was lawfull for him to doe other act in the farther assurance of his bargain and it was also lawfull for him to vouch his Bargainor and although the Bargainor vouched a stranger yet it is not a forfeiture 39 E. 3. 16. Aid prayer of a stranger is a forfeiture and the reason thereof is because he acknowledgeth the Reversion to be in a stranger and that is the cause of the forfeiture See Book of Entries 254. Where upon aid prayer the party to have aid sheweth special matter but in our Case Sir William Pelham hath vouched his Bargainor and that not without cause for he hath a Warranty from him and the Demandant could not counterplead it for he had seisin by force whereof he might make a Feoffment As unto the Case of 14 E. 3. Tit. Receit 135. Lesse for life in a Praecipe against him without aid prayer pleaded to the Enquest at the first day in that case it is said that he in the Reversion may enter It is true that he may enter in the Receit but not into the Land for forfeiture for then Fitz. would have abridged the Case in title of Entry Congeable and not in the Title of Receit and the Book of 5 E. 3. is good Law for there the Tenant doth confess the Reversion to be in another but in our Case the Tenant voucheth which is a lawfull act done and according to the Covenants of his purchase And although the Recovery be by agreement yet it is not therefore a forfeiture for if the Tenant for life voucheth truly it is no forfeiture Before the Statute of West 2. cap. 3. which gave Receit to the Wife and to those in the Reversion where the particular Tenant is impleaded and maketh default vel reddere noluerit there was no remedy in such cases but by Writ of Right but no entry and that was for the reason of the credit which the Law gave to Recoveries for if they might enter wherefore is Receit given but that was in two cases onely But afterwards because it was found that many particular Tenants being impleaded would plead faintly the Statute of 13 R. 2. gave receit in such cases And upon what reasons were these Acts and Statutes made if in such cases the entry was congeable But after these two Statutes another practice was devised for such particular Tenants would suffer Recoveries secretly in such sort that those in the Reversion could not have notice thereof so as they could not before Iudgement pray to be received to remedy which mischief the Statute of 32 H. 8. was made by which all Recoveries had against Tenant by the Curtesie or otherwise for life or lives by agreement of the parties of any Lands whereof such particular Tenant is seised shall be void as Tenant by the Curtesie c. should be void against him in the Reversion and yet there was an evasion to creep out of that Statute for such particular Tenants would make a Feoffment with Warranty and then the Feoffee should be impleaded in a Writ of Entry and he vouch the Tenant for life who would aver and such Recovery was holden to be out of the Statute of 32 H. 8. For the Recovery was not against such particular Tenants c. For the remedy of which mischief the Statute of 14 Eliz. was made by which it is provided That such Recoveries had where such particular Tenants are vouched shall be void if such Recovery be by Covin betwixt them And he conceived That the forfeiture is not in respect of the Recovery it self but of the Plea pleaded by the Tenant And here in our Case there is not any Covin found or that Sir William Pelham knew that he was but Tenant for life but it is found that this Recovery was with their assent and that was lawfull as the case is for they might agree to have such a Recovery for farther assurance and so Sir William Pelham hath not vouched any but his Bargainor and that according to their Covenants and this Bargainor was not a bare Tenant for life but he had also a Remainder in tail although not immediately depending upon the Estate for life which he had cut off there it was not meerly a feigned Recovery See 5 E. 4. 2. and 24 H. 8. br Forfeit 87. where Tenant for life being impleaded in a Praecipe voucheth a stranger the same is no Forfeiture for the same doth not disaffirm the Reversion but contrary of Aid prayer for a stranger may release with warranty to Tenant for life upon which he may vouch And he reported in his Argument That Bromley Chancellor of England sent him to both the chief Iustices to know their Opinions upon this point and they were of Opinion That the Voucher of a stranger was not any Forfeiture and also that after the Recovery was executed he in the Remainder could not enter but they conceided that the Right of him in the Remainder was not bound And he said That after the Recovery was executed that he in the remainder could not enter See 24 H. 8. Br. Forfeit 87. For if Entry in such Cases should be lawfull infinite Suits would follow thereupon which would be much to the Discredit of common Recoveries which are now the Common Assurances of the Land. As to the objection of the Enfancy the same will not help the matter Br. Sav. Default 50. 6 H. 8. A Recovery had against an Infant in which he voucheth and loseth is not erroneous contrary of a Recovery upon a default And if an Infant Tenant in tail suffer a common Recovery the same is a discontinuance for in such Recoveries Infancy is not respected And in a Scire facias upon a Iudgment had against the Father the Heir shall not have his age And he cited a case out of Bendloe's Reports 5 Eliz. Tenant for life the Remainder over to a stranger in Fee Tenant for life is disseised by Covin in a Praecipe quod reddat against the Disseisor he voucheth the Tenant for life who enters into warranty generally and voucheth over the common Vouchee It was adjudged That the Recovery was out of the Statute of 32 H. 8. for the Recovery was not had against the particular Tenant for he
years is out of the Book for by the Statute of 21 H. 8. cap. 15. he may falsifie the Recovery but no Receipt lieth in the case of a common Recovery for that he who recovers cannot put out the Termor As to that which my Brother Clark hath said That the bargain and sale in this case is not any forfeiture but when the bargain and sale is enrolled then it is a forfeiture I am not of such Opinion for although that the Enrolment be of Record yet the Deed is not of Record for against a Deed enrolled a man may plead Infancy although none can plead Non est factum Also he held That although by the bargain and sale and the Enrolment of it the Bargainee had not a fee for by such act the Reversion is not removed yet by the Recovery and the Execution of it the Bargainee hath gained a fee out of the Lessor for the Recovery is to the use of the Bargainee against whom it was had It hath been objected that here is onely a Voucher which paradventure was lawfull in this case by reason of a warranty paramount or of a Release or Confirmation with warranty and two Cases have been vouched to that purpose viz. 5 E. 4. 2. Tenant for life being impleaded in a Praecipe voucheth a stranger the Demandant counterpleads the Voucher which is found for him he in the Reversion hath no remedy but a Writ of Right so if the Vouchee had entred into the warranty and lost c. As to that book we ought not to conceive That every Case reported in our books is Law but let us observe of what authority that case is truly it is the conceit of the Reporter himself for he puts the Case and resolves the case but no Iudge or Serjeant is named in the case c. The other case is 5 E. 4. 2. b. Note by Heydon clearly If my Tenant for life voucheth a stranger who entreth into the warranty generally and doth not know how to bar the Demandant the Tenant shall recover in value and the Reversion of that which he hath in value shall be in me in lieu of my former Reversion as a Release to the Tenant for term of life shall enure to him in the Reversion But that is but the Opinion of one Serjeant c. But I answer to these books If the demandant in such recovery hath a good Title so as the Tenant or the Vouchee as Heydon saith do not know how to bar the Demandant there such Voucher of a stranger is no forfeiture nor such Recovery suffered upon it for against his Will volens nolens he suffered it but if the Tenant hath good matter to bar the Demandant and no good cause of Voucher nor any warranty as the matter is in the case of a common Recovery there the Voucher of a stranger or suffering of a Recovery is a forfeiture of his Estate And here in our case if the Demandant hath not any Title the Tenant or Vouchee hath not any warranty but the Tenant might have barred the Demandant if he would And he said That the Voucher onely doth not make the forfeiture but rather the recovery for when Iudgment is given and Execution is had then the Fee is plucked out of the Reversioner vide 6 R. 2. If Tenant for life claimeth a Fee the same is a forfeiture but here Sir William Pelham hath done more for he hath gained Fee by the Iudgment therefore à fortiori it shall be a forfeiture But let us see a little what meddlings or attempts by the particular Tenants are causes of forfeiture and what not 5 Assis 3. A. brought a Writ of Entry against Tenant for life by Collusion to oust B. of his Reversion supposing that the Tenant for life held of his Lease the Tenant confessed the Action upon which Iudgment is given B. enters and his Entry adjudged lawfull for this Recovery is adjudged in Law but an alienation to the disinheritance of him in the Reversion and there it appeareth that such Recovery by Covin is but an alienation and without any strength of a Recovery And he cited many other cases cited before by Altham 14 E. 3. Recept 135. where Tenant for life pleads in chief and prays in aid of a stranger where he might bar the Demandant and would not the same is a forfeiture Also 2 E. 3. 2. and 27 E. 3. where Tenant for life in a Quid juris clamat attorned to the Conusee upon a Fine levyed by him that had not any thing in the Land the same was a forfeiture and yet the Attornment doth not devest the Reversion out of the Lessor 50 E. 3. 7. and 8. Land was given by Fine in tail the Remainder over to a stranger in fee the Donee took a Wife and died without issue the Wife accepted Dower assigned by a stranger he in the remainder brought a Scire facias against the Wife she is Tenant in Dower of the assignment of a stranger and pleads to the Title the Demandant recovereth she hath lost her Dower for she hath not pleaded as she ought being a particular Tenant c. H. 4. Tenant for life loseth his Land in a Recovery against him against his Will and thereupon brings Quod ei deforceat and declares upon an estate-Estate-tail and recovers the same is a forfeiture because he hath challenged a higher Estate than he had 5 H. 5. Tenant for life joyns the Mise upon the meer right 2 H. 6. Lessee for years being ousted brings an Assise and recovers 1 H. 7. Accepts a Fine of a stranger upon condition come ceo c. all these are forfeitures In the principal Case here the Tenant who suffers his Recovery doth not plead at all to defend the Right but whereas he might have barred the Demandant he giveth strength to his pretended Title and makes it a perfect Title and by suffering this Recovery and Iudgment to pass upon it he hath taken the Reversion out of the Lessor to whom he owed Fealty and therefore he shall forfeit his Estate And without any doubt it is apparent to the Court that the Demandant in this Recovery hath not any Title but the Recoverors in such cases are but as Assignees or Purchasors which appears by the Statute of 7 H. 8. ca. 2. which gives Distress and Avowry to Recoverors c. As to the inventing of Recoveries it was a necessary device for it was to take away Estate-tails which were the causes of great mischiefs and inconveniencies in this Realm and there was great reason for it for Tenant in tail might by the common Law alien his Lands post prolem suscitatam and now he hath an Inheritance and may do Waste But he was so restrained by the Statute of West 2. that all the Realm and the Subjects in it were inveigled thereby Ioyntures of Wives Leases of Fermors Mortgages to Creditors Statutes and other Assurances were defeated by the deaths of Tenants in tail which
was both against the common Law and also against all Conscience These matters coming to the knowledge of the Iustices and the mischiefs thereupon following being very frequent and it appearing that the Tenant in tail was a dangerous fellow and that there was no safe dealing with him they took consideration of them and considering also with themselves That Lineal Warranty and Assets and Collateral Warranty without Assets did bar the Entail upon this consideration they grounded the practice and usage of common Recoveries So as by that means Tenant in tail hath Potestatem alienandi as he hath at the Common Law and by this means right was done to the Common Law because its authority was restored and thereby injury was done to no man But as for Tenant for life he never had Potestatem alienandi And as to that which hath been said That the recovery shall stand in force untill after the death of Tenant for life and in our Case here Tenant in tail is alive Truly if the Law should be such great mischiefs would follow For then great Iointresses the Widows of great persons having assurances to them of great and stately Houses and of Lands furnished with Timber of great yearly value might suffer such Recoveries and so having plucked the Fee out of the Heirs might commit waste and the same should be dispunishable which would be an intolerable mischief and so he concluded that the suffering of a Recovery was a forfeiture and Iudgment Trin. 21 Eliz. was given and entred accordingly XC Noon 's Case Trin. 31 Eliz. In the Exchequer DEBT was brought in London against one as Executor and upon fully administred pleaded it was found for the Plaintiff who assigned the same to the Queen whereupon a Scire facias issued out of the Exchequer against the Defendant into the County of Dorset The Serhiff retorned Nulla bona c. which Scire facias was upon a Constat of goods in another County It was agreed by all the Barons that the Debt was well assigned to the Queen And also that the Scire facias might issue forth of another Court than where the Record of the Iudgment remained and that upon a Constat of goods in another County than where the Writ is brought or where the party is dwelling he may well have a Scire facias in another County But the Retorn was challenged because contrary to the verdict As in a Replevin No such beast is not a good Retorn but Averia elongata or Nullus venit ex parte querentis ad monstrand averia And here the Sheriff might have retorned Devastavit which well stands with the Verdict 5 H. 7. 27. But as to that it was said by the Barons That it is true that the Sheriff of the County where the Writ was brought is concluded by the Verdict to make any retorn contrary to it but the Sheriff of another County shall not so be but the Sheriff of the County where the Writ is brought ought to retorn Devastavit c. and thereupon the Plaintiff shall have Process into another County But the Question farther was If a Scire facias upon Testatum shall issue into another County before that the Sheriff of the County where the Writ is brought had retorned a Devastavit for some conceived That a Devastavit where the Writ was brought ought first to be retorned and then upon a Testatum Process should issue forth into any County within England But others were of opinion That without a Devastavit retorned upon a Testatum Process might be sued forth immediately into any other County Williams said If I recover goods by Action brought in Midd. I may upon a Testatum have a Capias into any foreign County XCI Western and Weild 's Case Trin. 31 Eliz. In the Exchequer IN a Writ of Accompt brought in London the Defendant pleaded Never his Receiver c. which was found for the Plaintiff and Iudgement given that the Defendant should accompt Afterwards the Defendant brought his Writ of Privilege and if the same should be allowed after Iudgment was the Question Coke It shall be allowed for the Defendant hath not surceased his time This Iudgement to accompt is not properly a Iudgment for no Writ of Error lieth upon it before the accompt be ended Manwood Regularly after Iudgment no privilege shall be allowed but that is to be intended of a Iudgment ended but here notwithstanding this Iudgment the Action is depending and therefore he conceived that the privilege should be allowed in this case It was objected That then the Plaintiff should be at great mischief for he should lose the advantage of his Trial for he must begin again and plead again and have a new Trial. Clark the Plaintiff shall have benefit of his former Trial by way of Evidence XCII Brian and Cawsen 's Case Trin. 27 Eliz. In the Common-Pleas Rot. 1353. 3 Len. 115. IN an Action of Trespass by Brian and his Wife and others against Cawsen That William Gardiner was seised in Fee according to the custome of the Manor of C. of certain Lands and surrendred them to the use of his last Will by which he devised them in this manner i. I bequeath to John Th. my House and Land in M. called Larks and Sone To Steph. Th. my House and Land called Stokes and Newmans and to Roger Th. my House and Lands called Lakins and Brox. Moreover If the said John Stephen or Roger live till they be of lawfull age and have issue of their bodies lawfully begotten then I give the said Lands and Houses to them and their Heirs in manner aforesaid to give and sell at their pleasure but if it fortune one of them to die without issue of his body lawfully begotten Then I will that the other brothers or brother have all the said Houses and Lands in manner aforesaid and if it fortune the three to die without issue in like manner Then I will that all the said Houses and Lands be sold by my Executor or his Assigns and the money to be given to the poor The Devisor dieth John Stephen and Roger are admitted according to the intent of the Will Roger dieth within age without issue John and Stephen are admitted to his part John comes of full age and hath issue J. and surrenders all his part of the whole and his Estate therein to the use of Stephen and his heirs who is admitted accordingly Stephen comes of full age John the father dieth Stephen dieth without issue John the son as cosin and heir of Stephen is admitted according to the Will and afterwards dieth without issue The Wives of the Plaintiffs are heirs to him and are admitted to the said Lands called Larks and Sone and to the moyety of the Lands called Lakins and Brox parcell of Lands where c. by force whereof they enter into all the Lands where the Trespass is done and it was found That A. sole Executor died intestate and that Cawsen
the Office found Also the Traverse is not good for he traverseth the matter of the Conveyance which is not traversable for if the King hath Title non refert quomodo or by what Conveyance he hath it As to the matter in Law scil Tenant in tail in Remainder is attainted of Felony if the King during the life of Tenant in tail shall have the freehold and he conceived that he should for it shall not be in abeyance and it cannot be in any other for when he is attainted he is dead as unto the King. The chief Lord cannot have it for Tenant for life is alive and also he in the Remainder in Fee c. the Donor shall not have it for the Tenant in Remainder is not naturally dead but civilly and the Land cannot revert before the Tenant in tail be naturally dead without issue but if there were any other in whom the Freehold might vest and remain then the King should not have the Freehold but onely the profits So if the Tenant be attainted the Lord shall have the Lands presently 3 E. 3. 4 E. 3. The Husband seised in the right of his Wife is attainted of Felony the King shall have but the profits for the Freehold vests in the Wife and if the Lord entreth the Wife shall have an Assise And Tenant in tail may forfeit for his life as he may grant for his life See Old N. B. 99. If Tenant in tail for life dower or by the curtesie be attainted of Felony the King shall have the Lands during their lives and after their deceases he in the Reversion shall sue unto the King by Petition and shall have the Lands out of the King's hands and there it is farther said That the Lord by Escheat cannot have it for the party attainted was not his very Tenant nor he in the Reversion for the term yet endures But now it is to see if the Freehold be in the King without Office and he conceived and argued that it was Where the King is entituled to an Action there the King ought to have an Office and a Scire facias upon it as where the King is entituled to a Cessavit Action of Waste c. 14 H. 7. 21. where the Entry in case of a common person is necessary there it is requisite that there be an Office for the King As if a Villain of the King purchaseth Lands or an Alien born c. so for a condition broken Mortmain c. And in some cases an Office is onely necessary to instruct the King how he shall charge the Officer for the profits which may be supplied as well by Survey as by Office as if the King be to take by descent or as the Case is here And true it is that a person attainted of Felony may during his Attainder purchase Lands and yet he cannot hold it against the King and it is clear that by the Common Law in such cases the Land was in the King but not to grant for the Statute of 18 H. 6. was an impediment to it but now that defect is supplied by the Statute of 31 H. 8. cap. 20. So that now the King may grant without Office See Doughtie's Case 26 Eliz. And in our Case an Office is not necessary to entitle the King but for explaining of his Title and see 9 H. 7. 2. The Lands of a man attainted of High Treason are in the King without Office so where the King's Tenant dieth without Heir or Tenant in tail of the Gift of the King dieth without issue See Br. Office before the Escheator 34. and see 13 H. 4. 270. A man is attainted of Treason the King before Office grants his Lands and Goods Things which lie in Grant as Advowsons Rents Remainder such things upon Attainder are in the King without Office. As to the general pardon of 23 Eliz. he said That that doth not extend to this Case and that this interest of the Queen by this Attainder doth not pass by that pardon out of the Queen so if the Queen had but a Right or Title onely Popham Attorney General By this Attainder the Estate of him in the Remainder in tail accrueth unto the Queen for the life of him in the Remainder for by our Law Felony is punished by the death of the Offendor and the loss of his Goods and Lands for the examples of others therefore nothing is left in the party Tenant for life is attainted of Felony the King pardoneth him his life yet he shall have his Lands during his life and he may dispose of the same for his life And so is it of Tenant in tail for he may forfeit all that which he hath and that is an Estate for his life which is a Freehold If Lands be given to one and his Heirs for the term of the life of another and the Donee be attainted of Felony the King shall have the Land during the life of Cestuy que vie for the Heir cannot have it because the bloud is corrupt and there is not any occupancy in the case for 17 E. 3. the Iustices would not accept of a Fine for the life of another because there might be an Occupant in the case But for a Fine of Land to one and his Heirs for the life of another they would take a Fine for there is no mischief of occupancy Land is given to A. for life the Remainder to B. for life the Remainder to the right Heirs of A. who is attainted of Felony B. dieth now the King hath the Fee executed And here in our Case If the Tenant for life had been dead no Praecipe had lien against him in the Remainder being in possession but the party who hath right is to sue unto the King by Petition 4 E. 3. If one seised of Lands in the right of his Wife for life be attainted the King shall have exitus proficua but he conceived that Case not to be Law For see F. N. B. 254 D. The Husband seised in the right of his Wife in Fee is outlawed for Felony the King seiseth the Husband dieth now shall issue forth a Diem clausit extremum the words of which Writ in such case are Quia A. cujus Terr Tenement quae ipse tenuit de jure haereditate N. uxoris suae adhuc superstitis occasione ejusdem Utlagar ' in ipsum pro quadam Felonia unde indictatus fuit c. in Man. Domini H. patris nostri extiterunt c. therefore the King had not the issues onely but also the Lands See to the same purpose the Register 292. b. Stamford's Placita Coronae 186 187. affirms That Tenant in tail being attainted of Felony shall forfeit his Lands during his life And he said that the Estate of Thomas Venables was in the King without Office not to grant for that is restrained by the Statute of 18 H. 6. but it is in him before Office so as he who hath right ought
to sue to the King by Petition if he will have his Land yet he conceived that before the Statute of 18 H. 6. the King might grant the Land before Office as it appeareth by Thirning 13 H. 4. 278. who was before the said Statute So if the King's Tenant makes a Lease for years the Remainder over to another in Fee who dieth without Heir the Remainder is in the King without Office because a common person in such case cannot enter but a claim is sufficient and therefore it shall be in the King without Office. As to the pardon he said That it doth not extend to this Estate for this is a Freehold ergo not within the pardon As if the King's Tenant be attainted of Felony and the King pardons him all offences and all things which he may pardon these words shall not go nor extend to Freeholds but onely unto personal matters and such punishments and peins which do concern Chattels But it may be objected That by this pardon Title of Quare Impedit and Re-entries for Conditions broken are excepted and therefore if they had not been excepted they had been remitted by the pardon and therefore this pardon shall extend to Inheritances and Freeholds As to that I say That such Exceptions were not in use in the time of H. 4. and yet Inheritances and Freeholds were not taken to be within such pardons and such Exceptions did begin 5 Eliz And he said he had been of Council in such Cases where it hath been taken that such pardons did not extend to Freeholds As an Abbat was disseised and afterwards during the Disseisin the Abby is dissolved the King makes such pardon the same doth not transfer the Right of the King and in that Pardon are divers Exceptions of Goods and Chattels in many cases and therefore it cannot be intended that the pardon doth extend to Freeholds And see the said Act of pardon The Queen grants all Goods Chattels Debts Fines Issues Profits Amercements Forfeitures Sums of Moneys which word Forfeiture shall be intended of a personal Forfeiture non aliter for it is coupled with things of such nature And as to the Traverse he said It did not lie in this Case for the Office is not untrue but true in substance although void in circumstance And also the King here is entituled by double matter of Record scil the Attainder and the Office and he said that the Statutes of 34 and 36 E. 3. which gave Traverse are to be intended of Offices found virtute Officii and not virtute Brevis for then Efcheators were very troublesome And the Statute of 2 E. 6. doth not give Traverse but where the Office is untruly found as if Tenant of the King be disseised and the Disseisor be attainted the Queen seiseth the Land Now the Disseisee hath not remedy by Traverse upon the Statute of 2 E. 6. but is put to his Monstrans de Droit for the Office is true But if I be Tenant of the King and seised of Land accordingly and it was found that J. S. was seised of my Land and attainted c. whereas in truth he had not any thing in my Land there Traverse lieth for the Office is false and so in our Case for the Traverse it is at the Common Law and it was true that Venables was seised Coke to the contrary and he said That by the Attainder the Queen hath gained but a Chattel and that notwithstanding this Forfeiture if Venables had been in possession a Praecipe should be brought against him And where it hath been said by Mr. Attorney That Writs set down in the Register are the best Expositours of our Law the same is not so for the Register saith That Waste lieth notwithstanding a Mesn Remainder which is not now Law but it hath been clearly ruled to the contrary and see accordingly 50 E. 3. the Register therefore and the Writs are subject to the Iudgment of our Law and the Writ of Diem clausit extremum is not to the contrary for I confess that in such case the Land shall be seised into the hands of the King but the King shall not have but a Chattel therein It hath been argued It may be granted Roll. Tit. Grant. 4 Len. 112. ac Godb. 351. a. therefore it may be forfeited Nego Consequentiam for a man seised in the right of his Wife may grant but not forfeit Gardian in Socage may grant but not forfeit the Husband may grant a term for years which he hath in the right of his Wife but he cannot forfeit it A woman Inheretrix taketh a Husband who afterwards is attainted of Felony the King pardons him they have issue the Husband shall be Tenant by the curtesie which proveth that the King hath not the Freehold by that Attainder Before the Statute of Westm 2. Tenant in tail post prolem suscitatam might forfeit his Lands but now the Statute hath so incorporated the Estate tail to the Tenant in tail that it cannot be devested even a Fine levied by him ipso jure nullus although as to the possession it be a Discontinuance and that is the reason wherefore Tenant in tail shall not be seised to another's use See Stamford 190. The Husband seised in the right of his Wife is attainted of Felony the King shall have the profits of the Lands of the Wife during the life of the Husband c. So if Tenant in tail be attainted of Felony and that is but a Chattel in the Lands of the Wife and also in the Lands of the Tenant in tail and if the possessions of a Bishop be seised into the Queen's hands for a Contempt in such case the Queen hath the possession and not the profits onely the same Law of the Lands of Tenant in tail or for life being attainted of Felony so of seisure for Alienation without license or of the possessions of Priors Aliens See Brook Reseiser 10. So where the Seisure is for Ideocy And he said That in the principal Case nothing is in the King until Office and as to the Case of 13 H. 4. 6. he confessed the same for at that time many and amongst them Lawyers and Iustices were attainted by Parliament and so was Sir John Salisbury whose Case it was and their Lands by Act of Parliament given expresly to the King and therefore I grant that their Lands were in the King before Office. Tenant in Fee of a common Lord is attainted of Felony his Lands remain in him during his life until the Entry of the Lord and where the King is Lord untill Office be found but in the Case of a common person after the death of the person attainted they are in the Lord before Entry and in the Case of the King before Office for the mischief of abeyances And see the Lord Lovel's Case 17 and 18 Eliz. 485 486. Plow where it is holden That upon Attainder of Treason by Act of Parliament the Lands were
Statute and the penalties thereof And upon a great deliberation it was by them all resolved and agreed That notwithstanding the said Conveyance the said Lands were liable to the said Statute And as to the Iurors who against the Evidence given to them for the Queen gave their Verdict ut supra Process was awarded against them out of the Court of Exchequer for to appear before the Lord Treasurer and the Barons And for their said contempt they were committed to the Fleet and each of them fined 50 l. CLXXVI Moore and Savil 's Case Trin. 27 Eliz. In the Exchequer IN an Ejectione firmae by Moore against Savil the Case was That Tenant in tail leased the Land to the father mother and son for their lives by Indenture in which it was comprehended That forasmuch as the Lessor is but Tenant in tail and so cannot by Law limit these Estates by way of Remainder but jointly in possession and his intent was That because this Lease was procured and obtained at the special suit and costs and charges of the father That the said son should suffer his father and after him his mother to take the profits of the said Lands demised and to occupy and hold the said Lands to their onely profit without interruption of the said son notwithstanding his joint Estate in possession with them Provisum igitur est That if the said son shall challenge claim demand or take any profits of the Lands so demised or enter into the same during the life of his said father or mother That then the Estate to him limited by the said Indenture should cease and be utterly void And it was the clear opinion of the whole Court That this Condition and Proviso was utterly void for it is contrary to the Estate limited before as in the Case cited by Coke at the Bar. If I lease to you my Lands for 20 years Proviso that you shall not occupy the same the two first years the same Proviso is void and contrary and repugnant to the Estate CLXXVII Lord Cromwel and Townsend 's Case Mich. 28 Eliz. In the Star-Chamber HEnry Lord Cromwel exhibited a Bill in the Star-Chamber against Roger Townsend Esquire for that the said Roger Townsend in an Action betwixt James Taverner Plaintiff and James Cromwel Farmor of the said Lord Cromwel Defendant in Trespass in the favour and unlawfull maintenance of the said Taverner did procure a partial Iury to be retorned And upon the hearing of the Cause the matter given in Evidence was That the said Taverner was a Copiholder of the said Lord Cromwel and that the said Lord Cromwel pretending that the said Taverner had forfeited his Copihold caused the said James Cromwel to make an Entry in the right of the said Lord upon the said Taverner upon which Entry Taverner brought an Action of Trespass against the said James Cromwel in which Action the parties were at Issue upon the forfeiture And before any Venire facias issued forth Taverner hearing that one Steward who was Bailiff of the Franchize under the Earl of Arundel and who ought to make the Pannel c. was purposed to have made the said Pannel not duly viz. to retorn therein great Gentlemen of the County who were Lords of Manors in favour of the said Lord Cromwel went unto the said Roger Townsend who was then one of the principal servants and agents of the said Earl and shewed to him that if those great persons and Lords of Manors be retorned for the trial of that Issue peradventure they would not so easily appear for the expedition of the parties as people of lesser condition and also many of them being Lords of Manors and having customary Tenants and therefore not indifferent to try that Issue and prayed his Order to the said Steward for the making of an indifferent Pannel where upon a conference with the said Steward for the making of an indifferent Pannel and shewing to him the making of the said Pannel was not convenient or any equal course to retorn Knights Esquires or Lords of Manors but rather such sufficient persons for the greater expedition of Iustice and indifferency of the trial And afterwards the said Taverner exhibited a Petition shewing all the special matter and praying him to give Order for the making of an indifferent Pannel for the trial of that Cause which Petition was delivered to the said Earl by the said Townsend in the name of the said Taverner Vpon which the Earl did refer the said matter to three of his chiefest agents and Counsellours i. Dicksey Townsend and Carrel and delivered to them the Book of Freeholders within the said Franchise who according to their Commission made a Pannel which was retorned and the Iury passed with the said James Cromwel in the right of the said Lord And if this intermedling of Townsend with this matter as abovesaid c. especially his conference with the Bailiff be maintenance or not was the Question And by the Lord Anderson and the Lord Wray chief Iustices It was delivered for Law That because the said Townsend was in manner a servant of the said Earl who had retorn of Writs and one of his principal Counsellours and agents and hearing Ex insinuatione of the said Taverner the misdemeanour of the Bailiff of his Lord could not do better than to shew to the Bailiff his duty for it concerned the honour of his Lord and also his Inheritance in the Franchise But if the said Townsend had been a mere stranger to the said Earl so as no such privity had been betwixt them it had been clearly maintenance in Townsend as it was lately adjudged in this Court in the Case of one Gifford Gifford's Case where the parties being at Issue and a Venire facias was to the Sheriff to retorn a Iury a stranger wrote to one of the Iurors who was retorned in the Pannel praying him to appear at the day and to doe in the Cause according to his Conscience and that was adjudged Maintenance And afterwards upon the full hearing of the cause the said Townsend by the sentence of the said Court was acquitted of every Maintenance with great allowance and approbation of many Lords of the Council there present Bromley Cancellario tantum exclamante CLXXVIII Sir Moil Finch 's Case 33 Eliz. In the Exchequer 2 Roll 184. 1 Cro. 220. Poph. 25. 1 Roll 215. THE Case was this The King and Queen Philip and Mary leased for seventy years for certain Rent payable at the Feasts of Saint Michael and the Annunciation Proviso that if the Rent be behind and not paid by the space of forty days after any of the Feasts aforesaid that the Lease shall cease and be void At Mich. 9 Eliz. the Rent was not paid according to the Proviso but a Month after the said forty days it was paid and Acquittance given for it and so the Rents due after unto 30 Eliz. were duly paid and Acquittances given for the same
who 37 H. 8. levied a Fine of the said Manor without Proclamations to two strangers to the uses according to the said agreement and before any assurance made by the said Lord the said Lord was attainted of Treason by which all his Lands were forfeited to the King And afterwards the said Andrew Bainton made a suggestion to Queen Mary of all this matter and upon his humble Petition the said Queen by her Letters Patents reciting the said mischief c. Et praemissa considerans annuens Petitioni illius granted to him the Manor aforesaid and farther De ampliori gratia sua did release to the said Andrew Bainton all her right possession c. which came to her Ratione attincturae praed vel in manibus nostris existant vel existere deberent after which 5 Eliz. Andrew Bainton levied a Fine to the Plaintiff with Proclamations and died without issue and the Defendant as issue in tail entred Puckering Serjeant First it is to see if by the words of the Patent of Queen Mary viz. De ampliori gratia c. the Reversion in Fee which the Queen had shall pass or not Secondly Admitting that the Reversion doth not pass then if the Fine levied by Andrew Bainton 5 Eliz. to the Plaintiff the Reversion being in the Queen be a bar unto the issue in tail For as unto the first Fine levied 37 H. 8. which was without Proclamations the same shall not bind the issue in tail neither as to the right nor as to the Entry for it is not any discontinuance because the Reversion is in the King as of things which do not lie in discontinuance as Rent Common c. for such a Fine is a Fine at the Common Law and not within the Statute of 4 H. 7. and such Fine is void against the issue But if such a Fine without Proclamation be levied of a thing which lieth in discontinuance then such a Fine is not void but voidable by Formedon and therefore this Fine in the Case at Bar being levied without Proclamation of Lands entailed whereof the Reversion is in the King at the time of the Fine levied shall not bind the issue and by such Fine the Conusee hath nothing but a Fee determinable upon the life of Tenant in tail which Fee was forfeited to the Queen by the Attainder of the Lord Seymore and that the Queen moved of pity did restore the same to A. B. in recompence for the Indentures of themselves were not sufficient to raise any use See 1 Mariae Dyer 96. As to the first point it seems that nothing passed of the Reversion for the Grant hath reference to the words All her Right Possession c. which came to her ratione attincturae and all the residue of the Grant ought to have reference to that to the ratione attincturae which was the foundation of the whole Grant and here the intent of the Queen was not to any other intent but onely to restore A. B. to the said Manor or to his former Estate in it and nothing appears in the Letters Patents by which it may appear that the Queen was knowing of her Reversion which she had by descent and therefore the same cannot pass by general words If the Queen grants the Goods and Chattels of all those which have done any Trespass for which vitam amittere debent the Goods of him who is attainted of Treason shall not be forfeited to the Grantee by such general words 8 H. 4. 2. The King grants omnia Catalla Tenentium suorum qualitercunque damnatorum the same shall not extend to the Goods of him who is condemned of Treason See 22 Ass 49. So in our Case the Patent shall not serve to two intents but to a restitution of the Manor and then nothing passed by this Patent but the Fee determinable which was conveyed to the Lord Seymore and forfeited by his Attainder Then we are to see how after this grant the said A. B. is seised And he said That he shall be in of the said Fee determinable and not of the Estate tail against his own Fine and then if he be not seised by force of the Entail at the time of the Fine levied 5 Eliz. the same Fine cannot bind the tail But admit that at the time of the second Fine levied he was in of an Estate in tail yet the same Fine shall not bar his issue For first this Fine cannot make any discontinuance because that the Reversion in Fee is in the King which is not touched by the Fine See the Case of Sanders where A. makes a Lease to begin at a day to come and afterwards levies a Fine to a stranger with Proclamations the five years pass and afterwards at the day of the Commencement of the Lease the Lessee enters his entry is lawfull and he shall not be bound by the non-claim And so it was adjudged 21 Eliz between Sanders and Starky After the making of the Statute of 4 H. 7. of Fines it was much doubted if the issues of common Tenants in tail should be bound by a Fine with Proclamation forasmuch as upon the death of their Ancestours they were as new purchasors per formam doni and therefore it was provided by the Statute of 32 H. 8. that the said Statute of 4 H. 7. should extend to such common Entails but there was no doubt of the Estate tail of the Gift of the King and see betwixt Jackson and Darcy Mich. 15 and 16 Elizab. Rot. 1747. in a Partitione facienda the Case was Tenant in tail the Remainder to the King after the Statute of 32 H. 8. levied a Fine with Proclamations and adjudged that that should bind the issues and the Act of 32 H. 8. doth not extend but where the Reversion is in the King but no mention is there of a Remainder because the words of the said Act are general of all Tenants in tail the makers of the said Act perceiving that it might be a doubt that the generality of the said words might exclude Estates tail of the Gift of the King they have restrained the words in a special manner as appeareth by the last words of the same Act Nor to any Fines heretofore levied or hereafter to be levied by any person or persons of any Manors c. before the levying of the said Fine to any of his or their Ancestors in tail by Letters Patents or Act of Parliament the Reversion whereof at the time of the levying of such Fine was in the King and so such Estates are excepted and that in such Cases where such Fines are levied they shall be of such force as they should have been if the said Act had not been made and therefore he conceived it appeared at the said Parliament That such Estate tails of the Gift of the King were not bound bâ— 4 H. 7. for otherwise that Proviso or Exception had been frivolous Walmsley Serjeant to the contrary and he agreed That the
That William Heydon was seised of the lands and enfeoffed him And upon Ne enfeoffa pas the parties were at issue and it was found by special Verdict That the said William Heydon was seised and leased the Lands to the Defendant for years and afterwards he made a Deed of Feoffment to the same Lessee of the same Lands in Fee by the words of Dedi concessi with a Letter of Attorney within the said Deed to make Livery to the Lessee and the Deed of Feoffment was delivered to J. to deliver the same to the said Lessee who delivered the same accordingly The Lessee delivered the same to the Attorney named in the Deed who made Livery accordingly And it was moved by the Council of the Plaintiff That upon all this matter here is not any Feoffment And by Walmesly Serjeant This Deed so delivered took its effect presently as a confirmation and then the Livery and Seisin comes too late for as soon as the said Deed was delivered to the Lessee for years the Law gave to it its operation to this effect To vest the Fee and the Freehold in the Lessee by way of confirmation See for that Littl. 532 533. But the whole Court was of a contrary opinion for it is in the election of the Lessee to take the Conveyance as a Feoffment or as a confirmation And here it appeareth upon the Deed that the intent of both parties was That the Lessee should take by way of Feoffment and not of confirmation for otherwise to what use should be a Letter of Attorney inserted in the Deed And here the Lessee hath liberty to make his election how he will take either by Feoffment or by confirmation which election he hath determined by the acceptance of the Livery And by Anderson If tenant in tail be disseised and makes a Charter of Feoffment and delivers the same to the Disseisor who delivers the same to the Attorney named in the Charter who makes Livery accordingly here is a good Feoffment and a discontinuance and afterwards after many motions made and day given to shew cause Iudgment was given that the Plaintiff should be barred CCXLII. Rooke and Denny 's Case Trin. 28 Eliz. In the Common-Pleas IN an Action upon the Case by Rooke against Dennis for misusing of the Plaintiff's Horse by occasion of which misuse the said Horse became blind of one eye and gall-back'd The Plaintiff counted That the said Horse was stolen by three Felons after whom the Plaintiff made fresh suit and that the Felons were apprehended and attainted at his suit because Iustice Windham Hetley's Rep. 64. Rolls 809. More 572. Hetley's Rep. 64. and that the said Horse came unto the hands of the Defendant who misused it Ut supra The Defendant said that before that and the said Attainder of the said Felons the said Felons had waived the said Horse within his Manor in which Manor he had waife and estray c. And it was holden by the Court that the same was no Plea without traversing the fresh suit whereof the Plaintiff hath declared for by the fresh suit the property of the Plaintiff in the said Horse was preserved and so upon that misuser of the Horse by the Defendant an Action well lyeth and Iudgment was given for the Plaintiff accordingly CCXLIII Pretiman and Cooke 's Case Hill. 29 Eliz. In the King 's Bench. IN Ejectione firmae The Case was Ante 129. 1 Cro. 52. 3 Len. 180. That one Hawkins was seised of three Messuages in Bury and had issue Robert a son and Christian and Joan daughters and by his Will devised his three Messuages to his wife for life the remainder of one of them to Robert his son and his heirs and the remainder of another of them to Christian his daughter and her heirs and the remainder of the third Messuage to Joan his daughter and her heirs And farther willeth That if any of his said three issues should die without issue of his or her body that then the other surviving shall have Totam illam partem betwixt them equally to be divided The Devisor died the wife died one of the daughters died having issue the son died without issue the sister surviving entred into the whole part of Robert the son and died her husband held in the land as tenant by the Curtesie and the question was If the surviving daughter should have all the part of him that died without issue or she and the issue of the other daughter Coke The survivor shall have the whole And he said that the Devisees have an Estate in tail for the Fee doth not vest in them for it is incertain which of them shall survive but when one surviveth then he shall not have for life but in Fee for the words Totam illam partem goe as well to all the Estate as to all the things A. tenant for life the remainder to B. in tail the remainder to the right heirs of A. A. grants Totum statum suum both the Estates pass and the Grant includes the whole See 41 E. 3. Fitz. Br. 541. In Ravishment of Ward supposing the ravishment of two daughters Quarum maritagium ad ipsum pertinet and it was challenged because he doth not say Maritagia but the challenge was not allowed and he said That if a man deviseth his land wholly to A. that he hath a Fee-simple See the Case H. 28 Eliz. the Case between Higham and Harwood And Coke said That they had by this Devise a fee-Fee-tail with a Fee-simple Expectant each of them severally in the Messuage to them limited Golding Each of the Devisees hath an estate-Estate-tail in the Messuage to them devised and but an Estate for life in the Messuage which is to accrue upon the death without issue c. For no Estate is limited expresly nor what Estate the survivor shall have for here are not any words which do import a Fee-simple as according to Littleton imperpetuum or to do what he will with c. See for that 22 E. 3. ad Terminum qui praeteriit but here are onely bare words of which no farther construction can be made but for life And as to the words Totam illam partem the same doth not extend farther than if he said Partem suam And he said that nothing vests in him who survives for there ought to be two to take by the survivor or otherwise nothing shall accrue to the survivor for the words of the Devise are aequaliter inter eos dividend and that which accrues by survivor shall be divided betwixt two otherwise nothing shall accrue And if it cannot survive to two then it shall descend to the issue of the sister who is dead and to the surviving daughter and they shall be tenants in common and not joint-tenants Clench These words Totam illam partem go onely to the house and not to the Estate in it which Shute granted If both the daughters had survived Robert they should have Fee
Legacies c. did promise to pay to the Plaintiff 400 l. at four several days The first day of payment incurred and no money was paid whereupon the Plaintiff brought the Action the Defendant pleaded That he made no such promise and it was found for the Plaintiff and damages were assessed for the default of payment at the first day and that was moved in arrest of Iudgment because the Assumpsit was intire and the Plaintiff ought to have forborn his suit until all the days of payment were past and then to have one entire Action for the whole but the opinion of the whole Court was against that for they said It is not like unto a Debt upon a Contract or a Bill where the debt is to be paid at several days for here no debt is to be recovered but onely damages for the debt and this default of payment is a wrong and therefore the Action will well lie and so it was adjudged CCLXXX Pasch 16 Eliz. In the King's-Bench A. Devised that his lands should descend to his son but he willed 1 Cro. 252. Hob. 285. Dyer 251. a. Dy. 210. a. 3 Len. 9. 79. Yel en Ayleff Choppins Case Vaugh. 184. That his wife should take the profits thereof until the full age of his son for his education and bringing up and died the wife married another husband and died before the full age of the son and it was the opinion of Wray and Southcote Iustices That the second husband should not have the profits of the lands until the full age of the son for nothing is devised to the wife but a confidence and she is as Guardian or Bailiff for to help the Infant which by her death is determined and the same confidence cannot be transferred to the husband but contrary if he had devised the profits of the land unto his wife until the age of the Infant to bring him up and educate him for that is a Devise of the land it self CCLXXXI Bawell and Lucas 's Case Pasch 16 Eliz. In the Common-Pleas IN a Replevin by Bawell against Lucas It was agreed by all the Iustices viz. Mounson Manwood Harper and Dyer That if a man seised of a Manor leased part of the Demeans for years or for life That the reversion doth remain parcel of the Manor but such a Reversion by the Grant of the Manor doth not pass without Attornment of the Lessee And where a Manor is granted by Feoffment unto another and afterwards the Tenants attorn the services pass by the Livery and not by any Grant and although in the first Grant the Lessee doth not attorn but a long time after yet the Reversion is not severed from the Manor for the Attornment as to that intent shall have relation to the Livery to make the Reversion to pass from the time of the Grant but not to charge the Lessee with Waste and Dyer said That if a Feoffment in Fee be made of a Manor with an Advowson appendant and the Tenants do not attorn yet the Feoffee shall have the Advowson for the Advowson is appendant to the principal part of the Manor scil the Demeans and cannot be appendant to the services and Dyer said That if A. maketh a Feoffment in Fee of a Manor part of which is in Lease for years Habendum to the Feoffee and his heirs to the use of the Feoffee and his heirs upon condition that the Feoffee shall pay to the Feoffor within ten days 1000 l. and if he fail then to the use of the Feoffor for life the remainder to the use of his son in tail and the money is not paid the Lessee attorns after the ten days to the Feoffee 2 Leon. 265 266. the same is a good Attornment to raise secondary uses although that the first uses did not take effect for the condition is not annexed to the Estate of the Land but unto the use onely and the meaning was that the Feoffor should never have again the Inheritance A Feoffment is upon condition that the Feoffee shall give the Land in tail to a stranger who refuseth the gift there the Feoffor may re-enter but a Feoffment upon condition to enfeoff a stranger or to grant a Rent-charge if the stranger refuseth there the Feoffor shall not re-enter for his intent was not that the Land should revert c. CCLXXXII Vavasor 's Case Hill. 16 Eliz. In the Common-Pleas THE Case was That Nicholas Ellis seised of the Manor of Woodhall leased the same to William Vavasor and his wife for the life of the wife the remainder to the right heirs of the husband The husband made a Feoffment in Fee to the use of himself and his wife for their lives the remainder to his right heirs the husband died the wife held in and committed waste in a Park parcel of the Manor It was moved If the Writ of Waste shall suppose that the wife holdeth in Ex dimissione Nichol. Ellis or Ex dimissione viri and the opinion of all the Iustices was That the Writ upon this matter ought to be general viz. That she holds in de haereditate J. S. haeredis c. without saying ex dimissione hujus vel illius for she is not in by the Lessor nor by the Feoffees but by the Statute of Uses and therefore the Writ shall be Ex haereditate c. And also the opinion of the Iustices was That the wife in this case is not remitted but that she is in according to the form of the Feoffment Dyer The Formedon brought against Manures rehearsed in the Writ a Will and divers Conveyances by reason of which the Writ was of exceeding length and in such cases the Writ is good yet if the Writ be general it is sufficient Note in this Case That the Plaintiff assigned the waste in destroying of Deer in the Park And Mead Serjeant said That waste cannot be assigned in the Deer unless the Defendant hath destroyed all the Deer and of that opinion was Dyer Manwood If the Lessee of a Pigeon-house destroy all the old Pigeons but one or two couple the same is waste and if the Keeper doth destroy all the Deer so as the ground is become not Parkable the same is waste although he hath not destroyed the whole See 8 R. 2. Fitz. Wast 97. If there be a sufficient store left in a Park Pond c. it is well enough c. CCLXXXIII Mutton 's Case Hill. 16 Eliz. In the Common Pleas. JAne Mutton brought a Writ of Entry Sur disseisin 1 Anders 42. More 96. against Anne Mutton who pleaded That one John Mutton was seised and levyed a Fine to the use of himself and such wife and wives as the said John should after marry by what name or names they should be called for term of their lives and afterwards to the use of the same Jane now Demandant in tail the remainder over to the right heirs of the said John Mutton and afterwards the said
entred upon Ross the Plaintiff and enfeoffed Rockwood who enfeoffed Weston Coke for the Plaintiff The Case is no more but where a man hath issue a son and a daughter by several women and Deviseth his Lands to his son and the heirs of the body of the Father lawfully begotten in which case if the Son dieth without issue the Tail is extinct and the Daughter shall never have the Land for she doth not take by way of Reversion or Remainder and she doth not take in possession because the possession was in Jeofry who was the Heir of Henry c. And these Cases were vouched 1 Roberge's Case 2 E. 3. 1. to Tail John Mandevile took to Wife Roberge and Mandevile gave land to Roberge haeredibus ipsius Johannis quos ipse de corpore praedict Robergiae procreaverit there the Book is That the Formedon was Quae M. dedit Robergiae haeredibus dict Johannis quos ipsae de corpore dictae Robergiae procreaverit Et quae post mortem praefat Robergiae R. filii haeredis dict Johannis Mandevile haeredis ipsius Johannis de corpore dicto Robergiae per dict Johannem procreat c. and the same Writ awarded good which Coke denyed to be Law. And he cited the Case of Dyer 4 and 5 P. and Ma. 156. A. gives Lands to one for life the Remainder thereof rectis haeredibus masculis de corpore dict A. legitime procreat remanere inde rectis haeredibus dict A. who hath issue two Sons and dieth A. dieth the eldest Son hath issue a Daughter and dieth without issue male And he conceived first That in this case the limitation of the Remainder in Tail to the right Heirs of the body of the Donor is void for the Donor cannot make his own right Heir a Purchasor without departing with the Fee-simple of his person But admitting the limitation is good he said we are to consider If this entail to the Son once vested and commenced in the possession of the Son when he dieth without issue male The Estate be spent or that the same shall go to the younger Son And he said that it was the opinion of Dyer in that case That the younger Son was inheritable to the said Estate-tail as in the Case of Littleton 82. where the condition is That the Feoffee shall give the Lands to the Son and Heir of the Husband and Wife and to the Heirs of the body of the Father and Mother lawfully begotten and the Husband and Wife before any such Gift die having issue and afterwards the Feoffee gives the Land to the Son and Heir of the Husband and Wife and to the Heirs of the body of the Father and Mother begotten the condition is well performed and if the eldest Son to whom the Gift is made dieth without issue the youngest Son shall inherit And in a Formedon in the Reverter upon such a Gift the Writ shall be Et quae post mortem of the eldest Son ad ipsum reverti debet because the Husband and Wife obierunt sine haerede de corpor suis inter eos exeunt And such was also the Opinion of Saunders But Brook Brown and Catlin were clear contrary And he said that Bendloes Serjeant who reporteth that Case doth affirm That Iudgment was given in that case That the Estate-tail was spent and that the Daughter should have the Lands and not the second Son and so he said That in the Case at the Bar the Estate-tail was spent But he said That he conceived that in the principal case at Bar there is not any Estate-tail at all because the words upon which the Estate-tail is conceived are incertain and too general viz. secundum antiquam Evidentiam for there might be many ancient Evidences for the words may extend to Evidences which cut off the Estate tail as well as to the Entail of Guntwardy He also argued That the Partition was void and then the Lessee had a good interest for certain parts of the Lands for Partition cannot be made of an Vse and he said that he agreed That Partition betwixt Husband and Wives of Lands if it be equal should bind the makers because they are compellable to make Partition of them but contrary of an Vse for that they are not compellable to do Also in the principal Case the Land entailed is allotted to one of the Coparcenors which is not good but during the Coverture and afterwards void and then the Lease is void but in part and so the Conusance is not good Atkinson contrary and he said I conceive that by words of Relation a Fee may pass without the word Heirs See 39 Ass 12. The Father seised of Lands in fee doth enfeoff his younger Son in fee and the Father continues the possession of the Lands claiming to hold them at the will of the Son and the Son coming into the Town where the Lands do lie in the hearing of his Neighbours saith to his Father You have given to me these Lands naming them As fully as you have given them to me I give them back to you again and the same was holden to be a good Gift to the Father 43 E. 3. 22. The King seised of a Manor to which an advowson is appendant by Escheat or Conveyance gives the said Manor as entirely as such a one held the said Manor before the Escheat or Conveyance the Advowson shall pass without special mentioning of it And so here in our Case at Bar This Will hath reference to the ancient Evidence and it shall be as strong as if he had set down the special words of Entail and to ancient Evidence before the Entail it cannot extend for then a fee should pass and then the Devise should be void because to his Heir and the word Antiqua Evidentia shall have reference to the Charter which was made by Guntwardy for that was an ancient Evidence made two hundred years past and he cited the Case of 40 E. 3. 8. the Provost of Beverley's Case and conceived that the Estate was not spent for that the estate-Estate-tail was in Jeofry as the fee was in him Lands are given to the Father for life the Remainder to the Son in Tail the Remainder to the right Heirs of the Father the Father dieth the Tail and the fee are in the Son but yet after the death of the Son without issue the Lands shall be in the Brother's Son by descent and not as Purchasor And in our Case Jeofry was in in the Tail as right Heir of Henry and if Jeofry dieth without issue his Brother of the half bloud shall have the Lands as in the Case before cited of 40 E. 3. but that shall be in Tail by force of the Devise And he said That in this case here the Partition was made good enough although it were of Lands in use for a man might contract for an Vse without Deed 11 H. 4. Partition 156. Partition of an Advowson without Deed
15 E. 4. 29. And he agreed the Case That if the Lord doth improve part of the common that he shall not have common in the residue of the Land for the Lands improved because That he cannot prescribe for that which is improved as the Book is in 5 Ass But here in the principal Case he doth not prescribe in any person certain or in or for any new thing but he sets forth that the use of the Town hath always been that the inhabitants should have common there And this common is not common appendent or appertinent but common in gross See Needham 37 H. 6. 34. b. And he said That if the house of a Freeholder which hath used to have such common doth fall down and he erecteth a new house in another place of the Land that he shall have common to that new erected house as he had before And he took a difference betwixt the case of Estovers where a new Chimney is erected and this Case and he stood much upon the manner of the prescription Gawdy Serjeant contrary And he took exception to the prescription For he said that it is said therein That it is Antiqua Villa but he doth not say that it hath been so time out of mind c. and so it ought to be said as the Book is in 15 E. 4. 29. a. And then if it be not an ancient Town time out of mind the parties cannot prescribe as Inhabitants of the said Town to have common time out of mind c. And he said That if such a prescription as is said in this Case be good in Law viz. That every one who erected a new house within the said Town should have common to his said new house the same should be prejudicial to the ancient Town and to the utter overthrow and manifest impairing of the common there and it might so happen that one who had but little Lands in the said Town might erect twenty new houses there and so an infinite number of houses might be newly erected there and there should be common allowed to every Inhabitant within the said new erected houses which should be inconvenient and unreasonable Anderson chief Iustice He who erects a new house cannot prescribe in the common for then a prescription might begin at this day which cannot be and he insisted much upon the general loss which should happen to the ancient Tenants if such a prescription for new erections should be good Periam If it should be Law That he should have common in this Case That all the benefit which the Statute gives to the Lord for improvement should be taken away by such new edifications and erection of new houses which were not reasonable And such was the opinion of the other Iustices and therefore they all agreed that in the principal Case the Plaintiff should not have common to this new erected house but the entry of the Iudgment was respited untill the Court had seen the Record and after they had seen and considered upon the Record Anderson and Periam were of opinion as before But Windham did not encline to the contrary but they all agreed That he who set up again a new Chimney where an old one was before should have Estovers to the said new Chimney and so if he build a new house upon the foundation of an old house That he should have common to his said house new erected So if a house falleth down and the Tenant or Inhabitant sets up a new house in the same place Also if a man hath a Mill and a Water-course to it time out of mind which he hath used time out of mind to cleanse if the Mill falleth and he erecteth a new Mill there he shall have the Watercourse and liberty to cleanse it as it had before and afterwards the same Term Iudgment was given for the Defendant to which Windham Iustice agreed LIX Rous and Artois Case Hill. 29 Eliz. In the King's-Bench THE Case was large but the points in this Case were but two Owen Rep. 27. 4 Co. 24. The first was If Tenant per auter vye after the death of Cestuy que vye holdeth over If he be a Disseisor or not The second point was If Tenant at will or at sufferance be such a Tenant of the Manor as he may grant Copyhold Estates to Copyholders For the first point It was agreed by Godfrey and he held that the principal Case was That if Tenant pur auter vye holdeth over the life of Cestuy que vye that he thereby gaineth the Fee But he granted the Cases That where a man holdeth at the will of another that after the Estate determined if he holdeth over he hath not thereby gained fee for he is Tenant at sufferance and as Littleton saith in his Chapter of Releases 108. Tenant at sufferance is where a man of his own head occupieth the Lands and Tenements at the will of him who hath the Freehold and such an occupier claims nothing but at will But he said That in the principal Case he otherwise claimed than at the will of the Lessor for that it appeareth that he hath granted Copy and he said that this difference doth give answer to the Case which is t. H. 8. br t. per Copy 18. where it is said for Law That none is Tenant at sufferance but he who first enters by authority of Law As if a man makes a Lease for years or for the life of another and he holdeth the Lands after his term expired or after the death of Cestuy que vye If he claim nothing but at the will of him who hath the Freehold he is a Tenant at sufferance But if he holdeth in the Lands against the will of his Lessor then he is a Disseisor and so if he do act after such continuance of possession contrary to the will of his Lessor he is a Disseisor 10 E. 4. If an Infant maketh a Lease at will and the Lessor dieth and the Lessee continueth in possession and claims Fee the Heir shall have Mortdancester 18 E. 4. If Cestuy que vye dieth and the Tenant hold in and was impleaded The Lessor shall not be received and he conceived the reason of the Case to be because that the reversion was not in him but that the Fee was gained and rested in the other 22 E. 4. 39. g. by Hussey If a Termor holdeth over his term there an Estate in Fee is confessed to be in him because he holdeth the possession of the Lands by wrong but there is a Quaere made of it if he be a Disseisor or not but I conceive that he is for Trespass doth not lie against him before the Lessor hath made his entry and therefore if the Lessee doth continue in the possession of the Lands by reason of the first entry that is the reason as I conceive that the Writ of Entre ad terminum qui praeteriit lieth against such a Termor who holds so over his Term and
was but Tenant in Law because Vouchee and also that the Recovery was a good bar to him in the remainder notwithstanding that he was within age at the time of the Recovery And afterwards at another day the Case was argued by the Barons and Clark Baron conceived That the Entry of him in the remainder was congeable It hath been said That Sir William Pelham did not know that the Bargainor had an Estate but for his life or that any other person had any remainder therein the same is not to any purpose to excuse him for 42 E. 3. Every Purchasor ought at his own peril take notice of the Estates and charges which are upon the Lands of which he is Purchasor and the Law presumes that none will purchase Lands without advice of Councel and without knowing the Titles to the Lands And although divers Statutes have been made to provide against the practices of particular Tenants yet it is no argument that no other remedy was before And by Littleton If Tenant for life joyneth the Mise upon the mere right it is a forfeiture And he held strongly That the Iudgment did not take away the Entry cause of forfeiture being given before the Iudgment See 5 Ass 3. and 22 Ass 31. to that purpose For where Tenant for life is impleaded he ought to attend upon him in the reversion and to expect instructions from him in defence of his Title c. And therefore if he maketh default or confesseth Action the same is a forfeiture And as to the supposed recompence the same shall not help this Case for this is a common recovery and nothing else but an Assurance And Recoverors they are but Assignees and they shall take advantage of Conditions by 32 H. 8. and a Recoveror shall be seised to the use of him who suffereth the Recovery if no other use be expressed And he also held That when Tenant for life bargains and sells his Lands by Deed enrolled although no Fee passeth yet it is a forfeiture and that by reason of the Enrolment which is matter of Record And he said that if an Infant Tenant for life be disseised and the Disseisor dieth and afterwards the Infant dieth that he in the Remainder might enter Gent Baron argued to the same intent and he said That if Tenant for life suffereth a Recovery the same is not simply a forfeiture for he may have a warranty upon a Release or Confirmation made to him Attornment doth not give a Right but is onely a Consent yet if he who hath not any thing in the Reversion will levy a Fine thereof unto another and afterwards the Conusee brings a Quod juris clamat against the Tenant of the Land and he attorn it is a Forfeiture Manwood Baron to the same intent this is a new Case and I have not seen nor read the Case in any Book nor seen any presidents and it is a great case and a general case and worthy to be argued And I conceive clearly That here is a direct and express forfeiture the Dignity of Iudgments in reputation of Law hath been urged which ought to stand in force until they be reversed by Error or Attaint And also Littleton 481. hath been urged where upon the Statute of West 3. he saith That before the Statute aforesaid if a Lease had been made to one for life the remainder to a stranger and afterwards a stranger by faint Action hath recovered against Tenant for life by default and afterwards the Tenant for life died he in the Remainder had not any remedy But there Littleton doth not report the same as his own Opinion but as an Opinion conceived by a Reader upon the said Statute and in truth it is but a meer conceit And as to the main point he took this difference Such Recoveries in which the title of the Demandant stands indifferent to the Court and non constat if it be good or not being suffered by Tenant for life by default or confession without aid-prayer of him in the Reversion do not make any forfeiture although that the Tenant for life hath not dealt with him in the Reversion not having prayed in aid of him And in such case if a Lease be made for life the Remainder over in Fee upon such Recovery he in the remainder shall have a Formedon in the remainder or a Writ of Right and shall not put out him who recovered without any Action and that by the common Law. Then came the Statute of West 2. c. 3. which gave unto the Wife a Gui in vita upon a Recovery had against the Husband by default where before she had not any remedy but onely Writ of Right and notwithstanding si ulterius quaeratur si necesse habet ostendere jus suum secundum formam brevis quod prius impetraverat And if his Right be not better than the right of him in the Reversion he shall lose it notwithstanding the Iudgment given before for him and that Statute gave Receipt or Writ of Entry ad terminum qui praeteriit and that Statute is to be intended of such Recoveries where a good Title or indifferent is so as non Constat Curiae if it be good or not After that Tenant for life was driven unto a new shift and would not make default or lose for not pleading but he would plead but that faintly for the remedy of which mischief the Statute of 13 R. 2. which gave Receipt in such case the particular Tenant being restrained by this Statute he jugled yet and practised to suffer a Recovery secretly without notice of him in the Reversion for the remedying of which mischief the Statute of 32 H. 8. was made and that makes such Recovery had against such a particular Tenant void against him the Reversion It hath been objected That the said Statute of 32 H. 8. did not give any forfeiture in this case but makes the Recovery void and therefore he in the Reversion ought to stay until after the death of the particular Tenant To that I shall speak after But here our case is of a common Recovery and it doth appear to the Court that the Demandant hath not right for the Tenant might have barred him Also this Recovery is not to the use of the Recoveror but to the use of him who was Tenant in it and in truth it is nothing else but an assurance and in these feigned Recoveries the Recoveror comes in under the Title of the Tenant to it and not paramount as in case of a Recovery upon a good Title A Lease for years made by him who after suffers a Recovery is good and shall not be defeated by the Recovery otherwise it is where the Recovery is upon a good Title See Statute of Glocest cap. 11. where upon default of the Tenant Receipt is given for Lessee for years yet if the Tenant vouch upon default of the Vouchee the Lessee for years shall be received and now Receipt of Lessee for
Son living his Father cannot take as heir i. by limitation as Heir to his Father because that none can be said or held Heir to his Father as long as the Father be alive yet by way of Devise the Law shall favour the intention of the party and the intent of the Devisor shall prevail But all the Court was strongly against it and held that as well in Case of Devise as of Grant all is one Whereupon the Tenant produced Witnesses who affirmed upon their Oaths That the Devisor declared his meaning concerning the said Will That as long as his eldest Son had issue of his body that the Daughters should not have the Land but the Court utterly rejected the matter and Iudgment was given for the Plaintiff XCV the Countess of Linnox Case 29 Eliz. In the Exchequer IN this Case it was said by Manwood chief Baron That whereas the Cistercians c. had a Privilege that they should not pay Tithes for their Lands quas propriis manibus excolant but their Fermors should pay Tithes and now by the Statute of 31 H. 8. they are dissolved That the Queen and her Fermors should be discharged of such Tithes as the spiritual persons were for the Queen cannot excolere ergo her Fermors shall be discharged and so long as the Queen hath the Freehold her Fermors shall have such Privilege although she Leaseth for years or at Will But if the Queen granteth over the Reversion then the Fermors shall pay Tithes More Rep. 915. XCVI Golding 's Case Mich. 29 Eliz. In the King's-Bench IN an Action upon the Case against Gloding the Case was 1 Len. 296. 1 Cro. 50. Noy 18. A Feme sole being Tenant for life by Devise of Lands Leased the same for years to begin after her death and afterwards made another Lease 18 Octob. for twenty one years to the same Lessee to begin at Michaelmas before and the Pleading was Virtute cujus quidem dimissionis and the Lessee entred Crast Sanct. Mich. which was before the making of the Lease And upon the Grant of these two Leases the consideration of Assumpsit was grounded in an Action of the Case thereupon and six hundred pounds damages given And now this was moved in Arrest of Iudgment Coke for the Plaintiff Where two Considerations are laid down in the Declaration although that the one be void yet if the other be sufficient the Action upon the Assumpsit lieth and damages shall be taken accordingly And the Grant upon the Assumpsit was That both the Leases should be assigned to the Defendant and the Plaintiff hath declared accordingly although that one of the Leases be void And the Agreement was That the Plaintiff should assign totum statum titulum interesse suum quae habet in c. It appears here in the Pleading That the Lease was made the eighteenth of October and the Lessee did enter and was thereof possessed Crast Mich. which was before and so the Lessee then entering was a Disseisor But by Coke the same is not a Disseisin although that the Lessee entreth before the Lease made for there was a communication of a Lease although the Lease was not made before the eighteenth of October and peradventure it was by assent of the Lessor in which case it cannot be a Disseisin but be it a Disseisin yet in as much as he hath assigned all his interest quod ipse tunc habuit the Consideration is answered and he hath also delivered both the Indentures of Demise and hath granted all that which he might grant be such Grant void or good it is good Consideration enough as to us Egerton Solicitor contrary In every Action upon the Case upon a Promise there are three things considerable Consideration Promise and Breach of Promise As to the Consideration in our Case the Grant of the Lease which is to begin after the death of the Lessor is merely void And as to the second Consideration it appeareth That the Lessor at the time of the making of the Lease had but a Right for he was disseised for he who was afterwards the Lessee entred before he had any Lease made unto him and so here is not any consideration to ground the Assumpsit upon But admit that there be a consideration yet the Action doth not lie For 19 Eliz. a difference was taken by the Iustices scil When in the Declaration in an Action upon the Case two or more considerations are laid and are not collateral but pursuant As if I owe you an hundred pounds and I say That in consideration that I owe you 100 l. and in consideration that you shall give me 10 l. I promise to pay unto you the said hundred pounds which I owe you If you bring an Action upon the Case against me for the hundred pounds and lay in your Declaration both considerations although you do not pay me the ten pounds yet the Action lieth But where the considerations are not pursuant but meerly collateral and do not depend the one upon the other As in consideration that you are of my Councel and you shall ride with me to York I promise to give to you an hundred pounds there both considerations ought to be performed or otherwise the Action doth not lie and so here in the principal Case the considerations being collateral they both ought to be performed Afterwards upon consideration had of the Case by the Court Iudgment was given for the Plaintiff and it was said by Coke That there was not any Disseisin in the Case but he who entred was Tenant at sufferance by reason of the precedent communication XCVII Curtise and Cottel 's Case Trin. 28 Eliz. In the King's-Bench THE Case was this That one Bonham was seised of a Manor within which there were divers Customary Lands demisable by Copy for three lives The Lord of the Manor did demise some of those Lands to three Sisters Habendum to them for their lives successive for the Fine of 100 l. by them paid and they being seised accordingly the eldest Sister who was Tenant in possession took to Husband one Chapman after which the said Lord by Indenture leased the same Land to the eldest Sister the Remainder to the Husband the Remainder to the second Sister and no Agreement was made thereunto by the second Sister by Deed before or after the making of the Indenture but four days after the Lease made she agreed to it in the Country and then took to Husband Curtise and they entred claiming the said Land upon which Entry the Action was brought The point was That when the Lease by Indenture was made to the eldest Sister at which time no agreement was made by the second Sister who was in Remainder yet when after she agreed If by that Agreement her Right to the Copihold were extinct or not so as the interest of the eldest Sister being gone by the acceptance of the Estate by the Indenture the second Sister might come and claim
take effect by way of use in the Bargainee and after the Statute to draw the possession to the use But the Court utterly rejected that Exception was dangerous Note Pasch 30 Eliz. it was adjudged for the Plaintiff in the Replevin scil the Conveyance of the Prioress was not well pleaded for it ought to be plead as a Bargain and Sale and not as a grant and Judgment was given accordingly for such was the Conveyance of the greater part of the possessions of Monasteries And by Shuttleworth Serjeant Although such a Corporation cannot take an Estate to the use of another yet they may charge their possessions with an use to another CLXIX Venable 's and Serjeant Harris 's Case Mich. 28 29 Eliz. In the King 's Bench. Quaeries Hughs R. 13. 3 Len. 185. 4 Len. 112. THE Case was a Lease was made to A. and B. for their lives the Remainder to Thomas Venables in tail who 3 Eliz. was attainted of Felony 23 Eliz. was a general pardon Thomas Venables 24 Eliz. levied a Fine and suffered a common Recovery to the use of Harris Serjeant An Office is found Harris traverseth the Office and upon that there is a demurrer Leke argued That traverse doth not lie in this Case 4 H. 7. 7. where the King is entitled by double matter of Record the party shall not be admitted to traverse nor to his Monstrans de Droit but is put to his Petition which see 3 E. 4. 23. in the Case of the Earl of Northumberland 3 Len. 75. where the Tenant of the King is attainted of Treason and the same found by Office See also 11 H. 4. in the Case of the Duke of Suffolk and that is not helped by the Statute of 2 E. 6. cap. 8. For the words are untruly found by Office but here the Office is true By this Attainder Thomas Venables is utterly disabled to do any Act for by Bracton a person attaint shall forfeit Patriam Regnum Haereditatem suam 11 H. 4. one was attainted of Felony and before Office found the King granted over his Lands Also he is not helped by the general pardon for before the general pardon he had a special pardon so as the general pardon non operatur But the Iustices said The forfeiture did remain untill the general pardon Harris contrary And he put the case of Sir James Ormond 4 H. 7. 7. where the King is entitled by matter of Record and the subject confesseth the King's title and avoids it by matter of as high nature as that is for the King Traverse in that case lieth and if the King be entitled by double matter of Record if the party doth avoid one of the said Records by another Record he shall be admitted to his traverse and so here we have the pardon which is a Record and that shall avoid the Record of the King See 3 E. 4. 24. in the Earl of Northumberland's Case and here the pardon hath purged the forfeiture in respect of the offence and he said Tenant in tail being attainted of Felony shall not lose his lands but the profits onely for he hath his Estate by the Will of the Donor and there is a confidence reposed in him as in Walsingham's Case he cannot grant his Estate over and see Wrothe's Case An annuity granted pro Consilio impendendo cannot be granted over or forfeited for there is confidence And see Empson's Case and Dyer 2. 29 Ass 60. If the issue in tail be outlawed of Felony in the life of his father and getteth his Charter of pardon in the life of his father after the death of his father he may enter but by Thorp If the issue in tail getteth his Charter of pardon after the death of his father then the King shall have the profits of the lands during the life of the issue And the Case of Cardinal Pool was debated in the Parliament Cardinal Pool's Case 27 Eliz. That he being Dean of Exeter was seised of Lands in the right of his Church and was attainted of Treason It was holden That he should forfeit the profits of such Lands But admit that by this Attainder the Land be forfeited yet the party hath the Freehold until Office found See Nicols's Case on the Commentaries and see also the Case of the Dutchy in the first Commentaries And here the Pardon hath dispensed with the Forfeiture Tenant of the King alieneth in Mortmain before Office found the King pardons it this is good The Lord Poynings conveyed all his Lands to Sir Adrian Poynings who was an Alien and afterwards is made a Denizen and the King pardons him and releaseth unto him all his right in the said Lands without any words of Grant and it was adjudged the same shall bind the King. And he said that he had found a good precedent 14 H. 7. where a general pardon before seisure into the King's hands was allowed contrary after seisure without words of Grant. See Br. 29 H. 8. Charter of Pardon 52. If a man be attainted of Felony and the King pardons him all Felonies executiones eorundem the same shall not serve for life and Land if no Office be found but it shall serve for the Goods without words of Restitution and Grant for the King is entituled to them by Outlawry without Office but the King is not entituled to the Lands untill Office be found See ibid. 33 H. 8. 71. The Heir intrudes and before Office found the King pardons now the Heir is discharged as well of the issues and profits as of the Intrusion it self and also of Livery But a pardon given after Office is available for the Offence but not for the issues and profits And he cited the Case of Cole in the first Commentaries where a pardon was granted Mesne betwixt the stroke and the death See 35 H. 6. 1. 1 E. 4. 1. 8 Eliz. Dyer 249. Brereton's Case 11 Eliz. Dyer 284 285. Egerton Solicitor to the contrary This Traverse is not good for he that traverseth hath not made Title to himself as he ought upon which the Queen may take Issue for it is at the Election of the Queen to maintain her own Title or traverse the Title of the party At the Common Law no Traverse lay but where the Livery might be sued but that is helped by the Statute of 34 E. 3. cap. 14. but where the King is entituled by double matter of Record as in our case he is no Traverse is allowed until 2 E. 6. cap. 8. And in such case two things are requisite 1. That the Office be untruly found 2. That the party who is to be admitted to his Traverse have just Title or Interest of Estate of Freehold c. But in our case The Office is confessed by the Traverse to be true although that the Conveyance be not truly found Also Harris at the time of the Office found had not just Title but an interest came unto him long time after
the Case of making this Statute it was not to overthrow a foundation as it hath been said but it was rather a gratuity of the Subjects to the King for his bounty towards them for whereas by the Statute of Vses Vses were executed in possession so as the Subjects could not dispose of their Lands by their Wills as before the Vses Now by this Statute the King was pleased to give his Royal assent to an Act by which Lands might become devisable in respect of which the Subjects added to this Act the last clause to give him Wardship where it did not lie before by the Common Law and that as a recompence from the Subjects for the King's bounty and therefore it ought to be construed beneficially for the King. And to prevent covin and fraud was not the scope of this Statute For if three purchase Lands unto them and to the heirs of two of them now it is uncertain whose heirs shall inherit for non constat which of them shall survive and therefore no covin is averrable in such case and yet if the survivor of two to whom the Fee is limited dieth his heir within age such heir shall be in Ward So if such Lands be given to two and to the heirs of him of those two who shall first come to the Church of Paul Now it is uncertain which of them shall first come to the Church of Paul yet if he who first cometh to the Church of Paul dieth his heir within age he shall be in Ward which Cases prove that covin and fraud were not the cause of making this Statute but onely the thankfulness of the Subjects unto the King for his bounty as abovesaid for if this Act had not been made the Subjects should not have power to dispose of their Lands for the advancement of their children but all should descend So as now the King hath lost the Wardship and Primer seisin of two parts of the Lands of his Tenant and hath also lost the averment of covin which he had by the Common Law where Estates were made by the King's Tenant for advancement of their children In respect of which losses the Subjects gave unto the King Wardship in case where the Lands continue in jointure as to that which hath been said That this Statute shall not be taken by equity I conceive the contrary the words of the Statute are In every such case i. e. In every like case not onely where two or more persons hold jointly to them and the heirs of one of them but also in every the like Case as the Case now in question and in every Case where the life of him who hath the Freehold is the sole impediment quo minus the heir hath not the Land by descent in Demesne And it may be resembled unto the Statute of Marlbridge of Collusion which speaks of Leases for years Quas tradere voluerint ad terminum annorum and yet a Lease for life or Lease for years is within the said Statute for the Statute was made in restraint of an ill liberty that the Tenants had by the Common Law in prejudice of their Lords which see 4 E. 6. 53. Plow 59. And as to the word otherwise that may be construed for payment of his Legacies And as to equity enlarging the Statute speaks where many hold and to the heirs of one yet if two hold to them and the heirs of one of them the same is within the Statute And as to Equity restraining he puts this case Land is given to the Husband and Wife and the heirs of the body of the Wife who have issue the Wife dieth the issue within age he shall not be in Ward and yet he is within the Letter of the Statute but because that other matter That the Estate for life in the Husband is an impediment Quo minus he shall be in Ward It is a maxim of the Common Law That the father shall have the Wardship of the son and heir apparent therefore he shall not be within the meaning although he be within the Letter of the Statute So if Lands be given to my Villain and to another and to the heirs of my Villain who dieth seised his heir within age I seise the Villain and claim the remainder he shall not be in Ward and yet he is within the Letter of the Statute But I conceive in our Case the King shall have two Wards Simul semel the heir general of Wiseman and the issue in tail the heir general by the Common Law by reason that his father was the King's Tenant who disposed of his Lands for the advancement of his children and therefore the Queen shall have the third part in Ward And also the heir special shall be in Ward for that part of the Statute And it is no new thing to have two Wardships for one and the same Lands As 14 H. 8. of the heir of Cestuy quae use and also of the Feoffee and if the Tenant dieth seised having issue a daughter who is his heir the Lord seiseth the daughter and marrieth her and afterwards a son is born he shall have the Wardship also of him So of the heirs of the Disseisor and Disseisee and he said If Lands holden in chief be leased for life the remainder to A. in Fee A. dieth his heir within age he shall be in Ward and that by reason of these words in the Statute In every such case it is not the same Case but the like Case for if he who hath the Fee dieth so as the Freehold survives to the other now the Estate becomes as an Estate for life the remainder over It was adjourned CLXXXIV The Lord Howard and the Town of Walden 's Case 24 Eliz. In the Exchequer More Rep. 159. Post 162 163. BEtwixt the Lord Howard and the Town of Walden the Case was That the King made a Feoffment in Fee of Lands parcel of his Dutchy of Lancaster Tenend in feodi forma reddend inde sibi haeredibus suis aut illi cui de jure reddi debet 10 l. The question was How and of whom the Tenure should be It was argued by Plowden That it should be holden of the King as of his Dutchy he said The King is not bounden by the Statute of Quia emptores terrarum but here upon this Feoffment the Feoffee shall hold of the King as of his Dutchy All Grants of the King notwithstanding that they be of Lands yet they savour of the person of the King and his Prerogative being wrapt up in his person shall guide the disposition of the land and he said that this Tenure shall be implyed by reason and in respect of his person And the Statute of Quia emptores terrarum extends to Tenants onely Libere tenentes magnatum aliorum but the King is not Libere tenens alicujus magnat 32 H. 6. 21 22. The King hath an Advowson in the Right of his Dutchy to which
according to the custome of the Manor granted a Rent-charge to Sir William Cordel 2 Roll 157. Pro concilio impendendo for the term of his life and afterwards conveyed the Manor to Sir William Clifton in tail The Rent is behind 12 Brownl 208. Sir William Cordel dieth Sir William Clifton dieth the Manor descends to John Clifton who grants a Copihold to Hempston the Executors of Sir William Cordel distrain for the Rent It was agreed by the whole Court Antea 109. That the Copyholder should hold the land charged Windham Iustice It hath been adjudged that the wife of the Lord shall not be endowed against the Copyholder Dyer 270. which Periam granted but gave the reason of it for the Title of the Dower is not consummated before the death of the husband so as the Title of the Copyholder is compleated before the Title of Dower More 94. but the Title of the Grantee of the Rent is consummated before the Dower Fenner conceived That the Executors could not distrain upon the possession of the Copyholder and he argued that this case is not within the Statute of 32 H. 8. of Wills For by the preface of the said Statute he conceived That the said Statute did extend but to those cases for which by the Common Law no remedy was provided but in this case the Executors by the Common Law might have an Action of debt ergo But Periam and Windham contrary For this Statute doth intend a farther remedy for that mischief scil not onely an action of debt but also distress and avowry See the words of the Statute Distrain for the arrearages c. upon the lands c. which were charged with the payment of such rents and chargeable to the Distress of the Testator or in the seisin or possession of any other person or persons claiming the said lands onely by and from the same Tenant by purchase gift or descent in like manner and form as their Testator might or ought to have done in his life time And it was moved by Fenner That here the said land charged doth not continue in the seisin or possession of the Tenant and here Sir John Clifton was issue in tail and therefore he doth not claim onely by the father but per formam Doni and therefore he is not liable therefore neither his Copyholder Shuttleworth Serjeant contrary That Sir John Clifton was chargeable and he claims onely from them who immediately ought to have paid the Rent and the Copyholder claims by purchase from Sir John Clifton so he claims from Sir William Clifton the Tenant c. although he doth not claim immediately from him For if the Tenant ought to have paid it and dieth and the land descendeth to his heir and the Heir maketh a Feoffment in Fee the Feoffee shall be charged within this Statute although he doth not claim immediately so where land descends from the Tenant which ought to have paid it and so from Heir to Heir The Statute of 1 R. 3. wills that all grants c. shall be good against the Donor his Heirs c. claiming onely as Heirs to Cestuy que use c. Yet if Cestuy que use granteth a Rent-charge and the Feoffees are disseised the Grant shall be good against the Disseisor and yet he doth not claim onely by Cestuy que use And although Sir John Clifton be Tenant in tail and claims per formam Doni Yet because the Estate tail cometh under the Estate of him who grants the Rent he shall be subject to the charge And this Statute extends not onely to him who claims by the Tenant but also to the Heir of him who grants c. And by Windham and Rhodes The Copyholder doth not claim onely by the Lord but he claims also by the custome but the custome is not any part of his Title but onely appoints the manner how he shall hold c. The possession continues here in Sir John Clifton for the possession of his Copyholder is his possession so as if the Copyholder be ousted Sir John Clifton shall have an Assise And so the strict words of the Statute are observed for the seisin and possession continues in Sir John Clifton who claims onely by Sir William Clifton who was the Tenant in demean who ought to pay the Rent But Fenner said to that that the seisin and possession intended in the Statute is the very actual possession scil Pedis dispositio and such a possession in which the distress may be taken and that cannot be taken in a Freehold without an actual possession CLXXXVI 19 Eliz. In the Common-Pleas 3 Len. 65. A. Seised of land in Fee by his Will in writing granted a Rent-charge of 5. l. per an out of it to his younger son towards his Education and bringing up in Learning and if in pleading the Devisee ought to aver that he was brought up in Learning was the Question And it was holden by Dyer Manwood and Mounson that such averment needs not for the Devise is not conditional and therefore although he be not brought up in Learning yet he shall have the Rent and the words of the Devise are Towards his bringing up and he well knew that 5 l. per an would not nor could extend to maintain a Scholar in Learning Dy. 329. a. in diet apparel books c. and this Rent although it be not sufficient to such purpose yet he shall have it And Dyer said That such a case was here Two were bound to stand to the award of certain persons who awarded that the one of them should pay unto the other 20 s. per an during the term of six years towards the education and bringing up of such a one an Infant and within the two first years of the said term the Infant died so as now there needed not any supply towards his education yet it was adjudged that the yearly sum ought to be paid for the whole term after for the words toward his education are but to shew the intent and consideration of the payment of that sum and no word of condition c. CLXXXVII West and Stowel 's Case Mich. 20 Eliz. In the Common Pleas. 1 Cro. 870. Townsend 17. 1 Roll 28. More 549. Sty 353. a. IN an Action upon the Case by Thomas West against Sir John Stowell The Plaintiff Declared That the Defendant in consideration that the Plaintiff promised to the Defendant that if the Defendant shall win a certain match at shooting made between the Lord of Effingham and the Defendant then the Plaintiff should pay to the Defendant 10 l. and promised to the Plaintiff That if the said L. Effingham shall win the same match of the Defendant that then the Defendant would pay to the Plaintiff 10 l. And farther declared That the Lord Effingham won the match for which the Action is brought It was moved that here is not any sufficient consideration for the promise of the Plaintiff to
against a general Statute of which every one ought to take notice Periam When the Case was in the Common Pleas it was moved If of a sentence given by the high Commissioners an Appeal did lie and it was certified by Clark Doctor of the civil Law that it did for the Commissioners are as the Delegates of the Queen And as by the Canon Law one might appeal from the Delegates of the Pope unto the person of the Pope so now one may appeal from the high Commissioners to the person of the Queen See for that 24 H. 8. 12. Another Error was assigned because that the Commission gave authority to the Commissioners to adjudge upon confession of the party or upon the witnesses but here none of these two ways is found by the Verdict but sentence was given upon his Plea That he was sued in the Arches for the same cause and so they have not pursued their authority for the Act is That such Commissioners shall have authority by vertue of the said Act and of the said Letters Patents to exercise c. And they are directed by the Letters Patents that they shall proceed upon due proof had by confession or true witness to give sentence Periam Although they have not observed the due form prescribed unto them by the Letters Patents yet such sentence is not void Anderson If the party appeareth and will not answer it shall be taken pro confesso and he shall be condemned CCXVII Sir John Sand 's and Packsal Brocas 's Case Trin. 38 Eliz. In the Common Pleas. SIR John Sands brought an Action upon the Case against Packsal Brocas upon a Trover of goods and houshold-stuff The Defendant pleaded as to parcel that they were fixed to his Freehold in S. in Hampshire Absque hoc that he found them in other manner as to the part that the Plaintiff gave them to him at D. in Hampshire and as to the other part he pleaded Not guilty For the first part the Plaintiff caused it to be entred Non vult ulterius prosequi and took issue upon the two other and it was found for the Plaintiff by several Iuries in several Counties and damages and costs assessed by the Iuries and now the Defendant brought Error and assigned Error i. because the Plaintiff as to the first had entred Non vult ulterius prosequi which is a Non-suit and Non-suit in part is Non-suit in all Anderson It is a Question if this be a Non-suit The entry is Querens venit gratis concessit that as to the goods mentioned in the first Pleas Non vultulterius prosequi Ideo consideratum est quod nihil de iisdem versus the Defendant fiat est ille pleg in miseric the Defendant eat inde sine die Periam A Non-suit is when the Plaintiff is demanded and doth not appear but when he comes into Court and saith Quod non vult ulterius prosequi the same is a Retraxit Nelson Prothonotary Non-suit is upon default but here the Plaintiff appears and this is the usual form of entry of a Retraxit Another Error was assigned because both Iuries have assessed costs and Iudgment given according whereas the last Verdict ought to do it And where two Iuries are to try the issue the form of the entry after the first Verdict is Cesset executio untill the other issue be tryed Vid. 21 H. 6. 51. 36 H. 6. 13. Anderson Several issues cannot sever the costs although they may the damages for it is but one suit therefore but one costs and that is the reason that Iudgment shall not be given untill the last issue be tryed because that costs shall be but once assessed which was granted by the whole Court And by Periam The first Iury may assess costs for the whole suit Quod fuit concessum Coke Here are several Iudgments for the costs and although it be void for the later issue yet it is good for the first Periam How shall it appear unto us which Verdict was the first and which the last although that the one Verdict be entred of Record before the other the same doth not make that it was first given wherefore the whole shall be reversed CCXVIII Mich. 31 Eliz. In the Common Pleas. 2 Len. 224. A Man 30 Eliz. made a Feoffment in Fee to the use of himself for life and afterwards to the use of his first son and his heirs The father and the Feoffees before issue for money by Deed give grant and enfeoff J. S. and his heirs who hath not notice of the use The Tenant for life hath issue and dieth the issue entreth Glanvile The use limited to the first son is destroyed for without regress of the Feoffees it cannot rise and that the same is gone by their Livery See Plowden's Com. 340. And also he vouched the case of the Earl of Kent whereby the release of the surviving Feoffee a sleeping use was destroyed and could not afterwards be revived Harris The use may rise without entry of the Feoffees And he put a difference between uses created before the Statute and uses created after for in the first case they ought to enter and if they be disabled by any Act as in the case betwixt Gascoign and the Earl of Kent they shall never rise but in the later case all the authority and confidence is by the Statute out of the Feoffees and the uses contingent shall rise without aid of the Feoffees by the operation of the Law for the land is bound to the uses and charged with them As upon a Recovery in a Warrantia Chartae the land of the Defendant is charged pro loco tempore and according to the common experience in Conveyances for the payment of the Debts of the King as in the case betwixt Breden and Dennis The Debtor of the King makes a Feoffment in Fee to the use of himself and his heirs untill he makes default of payment of such a sum unto the King at such a day and upon default to the use of the King and his heirs Cooper There needs no entry of the Feoffees and he put the difference put before by Harris betwixt an use created before and an use created after the Statute And now the Feoffees have not any power to revive or destroy such cases but are onely as instruments to convey the uses for the use is created upon the Livery and is transferred by the Statute if the person to whom the use is limited be capable thereof at the time of the limitation thereof but if not the Law shall preserve the same and it cannot by any means be prevented And he put the case of Bro. Feoff to Uses 50. 30 H. 8. And there is a great difference betwixt an Vse limited before the Statute and after the Statute for now after the Statute the Feoffees have not any seisin whereof they may make a Feoffment And he put the case between Cheney and Oxenbridge Cheney leased to Oxenbridge for
Statute is recited which needs not and therefore being misrecited made the Indictment insufficient but here the Statute is well recited and therefore as unto that matter the Indictment is sufficient As to the second exception the Iustices were of opinion That the Indictment in that respect Antea 184. was too general and incertain The third exception was not allowed for the latter words i. e. in Putney do refer to the whole and extend as well unto the house as unto the lands But as to these words Lands to the said house belonging See the Case between Partridge and Croker 7 E. 6. 85. where it is good enough because that the number of the acres is set incertain And it was holden by the Court That a Schoolmaster is a good addition for it is a mystery as a Scrivener and afterward the Indictment for the house onely was holden good CCXXXIII Gray a Bencher of the Temple 's Case Mich. 32 Eliz. In the Chancery GRay a Bencher of the Temple's Case was this It was found by Office That one H. was seised in Fee of certain lands called Drayners and Codred alias Codreth in the County of Hertford in his Demesne as of Fee and thereof enfeoffed certain persons unto the use of himself and Anne Capel with whom he afterwards intermarried and of the heirs of their two bodies begotten and of such Estate died seised and farther it was found that the said H. was also seised of other Lands in Barmesden in his Demesne as of Fee and therefore died seised and now came Gray into the Chancery and shewed that the said H. was seised of the said Land called Drayners in his Demesne as of Fee and thereof enfeoffed certain persons unto the use of himself and the said Anne Capel for the term of their lives and afterwards by his Indenture dated the 23. of Decemb. and enrolled bargained and sold the Reversion thereof to the said Gray c. by force whereof c. Absque hoc that he was seised in tail and absque hoc that he thereof died seised in his Demesne as of Fee-tail as it is found by the said Office and for the Land in Barmesden he said that the Lady Judde was seised thereof for the term of her life the Reversion to the said H. in Fee who granted to him the said Reversion in Fee c. absque hoc that he died seised in his Demesne as of Fee c. And upon that the Queen's Attorney joined issue and the Venire facias issued De Cottred Barmesden and the Iury found That H. did not make the Feoffment to the use of himself and Anne his Wife in tail and farther found for Gray in all c. And it was objected here That the same is not a good and lawfull trial For the Land is alledged to be in Codrett and the Venire facias is of Codred c. And although the Venire facias be well awarded as unto Barmesden yet being naught in part it is naught in all which was granted by the whole Court And then a new Venire facias shall issue forth for the whole Another Objection was because he pleads that the Lady Judde was seised of that Land for the term of her life in which Case Gray who is in Reversion ought not to be admitted to this Traverse because that Tenant for life for any thing that is pleaded to the contrary is yet alive and it is clear that none shall be put to his Traverse but the party grieved and here he in the Reversion upon an Estate for life cannot be restored to the possession and by consequence shall not have Traverse See for that 6 H. 7. 15. and 37. Ass 11. c. 2. The seisin in tail ought to be traversed and not the descent or dying seised for if they were seised and disseised and so died the Queen shall have the Ward Coke contrary For Codred and Cottered idem sonant c. And although that it be found by Office that H. was seised of Lands in Codred alias Codreth yet the Defendant supplies the said matter for he saith thus as unto the Land in Codred praedicta which words import that the said Land was known by the one name or the other for this word praedicta is as an Averment which see 33 H. 8. Br. Averm 42. And so here this word praedicta is an Averment that Cottered and Codred are one And if so then the Venire facias is well awarded The Statute of 18 H. 6. gives Traverse to those who find themselves grieved by such Offices or which are put out of their Lands or Tenements and we are within the words of it for upon the whole matter we are out of possession as it was ruled in the Case of one Stukely in the Court of Wards the last Term. If it be found by Office That A. died seised of my Manor and that he held the said Manor of the Queen Now I am out of possession and for that cause the bargain and sale of Dorrel to Sir Francis Walsingham was holden void by the whole Court And 4 H. 6. 12. Traverse is given in lieu of Petition but he in the reversion may have Petition therefore he shall be also admitted to Traverse and this Case may be resembled to the Case of 2 E. 3. 23. where a Praecipe was brought against Tenant for life and he in the Reversion for life prayed to be received It was said by Thorp That is not within the Case of the Statute for he is Tenant onely in the Remainder and it is possible that neither shall have any thing and the Statute speaks onely of Reversion and yet it was awarded That he should be received otherwise great prejudice would follow And here we are at prejudice for now by reason of this Office we cannot have our Action of Waste Also here we need not to Traverse the dying seised in tail but it is sufficient to Traverse the gift in tail for if there be not a gift in tail it is not possible that he should die seised in tail which see 2 E. 4. 15. by Laicon Gawdy Iustice conceived that the trial is not good for the Venire facias is not from the place where the Land is and this word praedicta doth not amount to an Averment and the Case cited before is but the opinion of Brook. Wray said That as to the first exception that it was good enough for both the names idem sonant and as to the Office by that the Queen hath gained possession so as he who traverseth cannot have an Action of Waste and so he is prejudiced by the Office c. CCXXXIV Perchall 's Case Mich. 32 Eliz. In the King's-Bench PErchall was Indicted upon the Statute of 5 E. 6. cap. 4. for drawing of his Dagger in the Church against J. S. without saying That he drawed it to the intent to stick the Plaintiff and therefore the Indictment was holden void as to the
to the eldest child then the said eldest child shall have it de novo by the later conveyance And as to the Warranty of the Fine because the possession of the Conusees is removed by the Statute of 27 H. 8. to the daughter she shall not have the benefit of the Warranty as to vouch but she shall Rebutt as 22 Ass 37. 69. Where a Feoffment in Fee is made to my Villein with Warranty and before that the Feoffor dieth I enter upon my Villein so as the Warranty upon the death of the Warrantor is not attached upon the possession of my Villein I shall not have advantage of that Warranty A Disseisor makes a Feoffment in Fee upon Condition the Disseisee re-leaseth the Feoffee with Warranty the Disseisor entreth for the condition broken now the Disseisor shall Rebutt by that Warranty but not vouch And here in our Case the Fine is a discontinuance so as the son is put to his Action if he had right and then the Warranty shall bind him but contrary if his entry be lawfull And as to the Lease made by the Infant he conceived that it being made without Rent it was meerly void for it was without consideration Wray chief Iustice As to the first point he was of opinion That the Recoverers shall be seised to their own use untill they make the Estate for that was the use implied for all uses are directed and ruled by the intent implied or expressed of him to whom the land is and his intent was that such Estates should be made and to such purpose the Recovery was suffered As if I enfeoff A. unto the use of B. for his life there it is implied That B. shall be seised of the Fee to my use I covenant That J. S. shall take the profits of my lands for his life this is a good use of the lands for his life and he held that the Recoverors should be seised to their own use untill c. And the Recoverers ought to make the Estates within convenient time or otherwise the use should be revested again in him who suffered the Recovery and here the Estate was made within convenient time And he said That in every Case where a remainder is limited in abeyance to one by a proper name the same is not good but by a general name it is good enough if the party be in esse when the remainder falls as a remainder limited upon an Estate for life unto the first son or daughter of J. S. where J. S. at the time hath not any son or daughter the same is good if such person shall be in esse at the time of the death of the Tenant for life 17 E. 3. A remainder limited Filio primo genito c. and 3 E. 3. Fitz. Tail. 8. Land given to J. S. Et uxori quam primo matrimonio duxerit in uxorem and afterwards he taketh a wife she shall take by the same Conveyance And as to the Warranty This Fine with Warranty was levyed to C. and B. unto the use of himself for life the remainder to the use of the eldest child c. and he intended That the daughter should not have the benefit of this Warranty for by the Statute the possession is removed and transferred in the Post before the Warranty could attach and therefore the same shall not bind the son neither by Voucher nor by Rebutter But Tenant by the Curtesie shall have benefit of the Warranty for although he be in the Post yet he continueth the Estate which was made to the wife And as to the point in question we ought to consider that the Statute of 27 H. 8. of Vses is That Cestuy que use shall have the lands in such plight as he had the use which was without Warranty and therefore it shall be transferred into possession without Warranty As to the Lease made by the Infant without rent profit or other recompence he conceived the same to be utterly void as if he grant a Rent or an Advowson he may say that he did not grant c. for the thing included in the Deed doth not pass although he delivereth the Deed of Grant with his own hand Two ioynt-tenants within age one makes a Lease of years and dieth the other shall avoid it for the Lease is utterly void of which every stranger may take advantage but of acts voidable it is otherwise As two Infants joynt-tenants the one Leaseth for life and makes Livery in person and dieth the other shall not avoid it Two joynt-joynt-tenants the one maketh a Feoffment upon condition and dieth the other shall not take benefit of the condition But here the Lease is meerly void of which every stranger shall take advantage and therefore upon this point the Plaintiff shall be barred And also he was of opinion That this remainder in abeyance limited Seniori puero was not destroyed by the Fine for it is in the consideration of the Law and so preserved by the Law and therefore a descent in the time of vacation of an Abbat shall not bind the successor and so where the party is beyond the seas for such persons and their estates the Law privilegeth and preserveth So a remainder limited to the right heirs of J. S. And where the King seiseth by reason of a Ward and during such seisin of the King a descent is cast the same shall not bind him who hath right for he could not enter upon the possession of the King and by the Statute of 32 H. 8. A Recovery had against Tenant for life the remainder unto the right heirs of J. S. who is alive at the time of the Recovery is not helped by the Statute of 32 H. 8. For the words of the Statute are To whom the reversion or remainder shall then appertain See 11 R. 2. Fitz. Detin 46. and so he concluded because that this remainder is in the custody of the Law and not in esse it is privileged and preserved and not destroyed by the Fine and upon issue had the remainder shall be executed notwithstanding the said act done by the father and without any entry to be made by the Conusees to raise the use for the remainder limited Seniori puero neither was nor could be discontinued As to the principal point of the Case viz. How these words Seniori puero shall be expounded although divers authorities have been cited out of Latine Authours That this word puer shall be taken for the Male or Female yet I conceive That more commonly it shall be taken for the Male than for the Female and we ought to judge according to the intent of the parties and not according to the strict signification of the word in Latine especially where it is doubtfull how it shall be expounded 9 H. 7. 16. A. was bound in a Bond upon condition to pay decem libras auri puri although there be not any such phrase in Latine yet because it appeareth so to be the
John Mutton took to wife the now Tenant upon which Bar the Demandant did demur in Law. And it was argued by Jeofries Serjeant 13 Co. 48 49 54 55 56. 1 Co. 101. 3 Len. 253. That here the wife taketh nothing by this limitation because she was not capable thereof at the time of the limitation But if the use had been limited especially to John Mutton untill he took a wife and then unto the use of him and his wife for their lives the same had been a good use to the wife But in our Case the use is limited to the wife in praesenti and not upon a contingent and because the wife at the time of the limitation was not capable she shall never take after and yet it may be said That a joynt Estate may be in esse and yet to begin at several times as 18 E. 4. 12. A Feoffment is made to three and Livery is made to one of them and first one of them agrees to the Livery and a year after another agreeth and afterwards the third although they take nothing untill agreement yet when they have agreed the agreement shall have relation to the time of the Livery but in truth the reason thereof is because the Freehold shall be adjudged in them all untill they have disagreed And if a disseisin be to the use of A. B. and C. And first A. agrees to it and afterward B. and after C. although they took nothing untill agreement yet when they have agreed their agreement shall have relation to the time of the first disseisin and if in such case the Disseisor had made a Lease before agreement the party to whose use after agreeing shall avoid such Lease CCLXXXIV Stamford 's Case Hill. 16 Eliz. In the Common Pleas. THE Case was A. took a wife and afterwards married Elizabeth Stamford living his first wife and by Deed gave part of his goods to the said Elizabeth and as to the residue of his goods being but of small value he made the said Elizabeth his Executrix and died she refused the Executorship for which the Ordinary committed Adminstration to B. Gawdy Serjeant asked the advice of the Court against whom the Action of Debt should lie for if the Creditor impleadeth the Administrator he hath not Assets if the Executrix her self she will plead that she hath renounced the Cxecutorship and that Administration is committed to B. And the opinion of Dyer Iustice was That the Gift is void by the Common Law and also by the Statute of 13 Eliz. and then if the Gift be void any way the Creditor may have an Action of Debt against the said Elizabeth as Executor of her own wrong And see that such a Gift is void by the Common Law 43 E. 3. 2. And by Manwood Iustice He who takes the goods of the dead shall not be charged as executor of his own wrong unless he doth something as Executor as to pay Debts make Acquittances c. See 41 E. 3. 31. 32 H. 6. 7. Dyer If one takes the goods of the dead and converteth them to his own use he is chargeable as Executor and so it hath been adjudged in the time of this Queen in the Case of one Stokes which was affirmed by Bendloes and Harper See now Co. 2 Part. 53. Reade's Case where no lawfull Executor or Administrator is there if a stranger takes the goods of the dead into his possession the same is a good Administration to charge him as Executor of his own wrong CCLXXXV Hill. 19 Eliz. In the Common-Pleas Ante 178. THE Case was A man made a Feoffment in Fee to the use of himself for life and afterwards to the use of his eldest son in tail and after to the use of his right heirs not having at the time of the Feoffment any son afterwards he suffered a common Recovery had issue a son who died in the life of his father having issue a son and afterwards he himself died It was holden by the Iustices in this Case That the son and heir of the son should not avoid this Recovery by the Statute of 32 H. 8. for there was not any remainder in him at the time of the Recovery had and the words of the said Statute are That such Recovery shall be void against such persons to whom the reversion or remainder shall then appertain i. e. at the time of such Recovery And it was said by one of the Serjeants at Bar That if lands be given to E. for life the remainder to B. in tail the remainder to C. in Fee B. dyeth his wife young with child with a son a Recovery is had against E. with the issue of C. and afterwards the son is born he shall not be helped by this Statute of 32 H. 8. for that remainder was not in esse at the time of the Recovery But it was holden in the principal Case That the heir might avoid the said Recovery by the Common Law for the recompence cannot extend to such a remainder which is not in esse CCLXXXVI Sidenham and Worlington 's Case Pasch 27 Eliz. In the Common Pleas. 1 Cro. 42. IN an Action upon the Case upon a Promise the Plaintiff declared That he at the request of the Defendant was surety and bail for J. S. who was arrested in the King's Bench upon an Action of 30 l. and that afterwards for the default of J. S. he was constrained to pay the 30 l. after which the Defendant meeting with the Plaintiff promised him for the same consideration That he would repay that 30 l. which he did not pay upon which the Plaintiff brought the Action the Defendant pleaded Non assumpsit upon which issue was joyned which was found for the Plaintiff Walmsley Serjeant for the Defendant moved the Court That this consideration will not maintain the Action because the consideration and promise did not concur and go together for the consideration was long before executed so as now it cannot be intended that the promise was for the same consideration As if one giveth me a Horse and a Month after I promise him 10 l. for the said Horse he shall never have Debt for the 10 l. nor Assumpsit upon that promise for there is neither contract nor consideration because the same is executed Anderson This Action will not lie for it is but a bare agreement nudum pactum because the contract was determined and not in esse at the time of the promise But he said it is otherwise upon a consideration of marriage of one of his cosins for marriage is always a present consideration Windham agreed with Anderson and he put the Case in 3 H. 7. If one selleth a Horse unto another and at another day he will warrant him to be sound of limb and member it is a void warrant for that such warranty ought to have been made or given at such time as the Horse was sold Periam Iustice conceived That the Action
Corbets Case SECT 88 Challoner Bowyers Case SECT 94 Countess of Linox Case SECT 95 Curtise and Cattells Case SECT 97 Cony and Chomleys Case SECT 157 Collet and Robstons Case SECT 160 Crop and Hamledens Case SECT 173 Cony and Beveridges Case SECT 181 Crabdels Case SECT 199 Case of the Town of Leicester SECT 240 Courtney and Killoways Case SECT 249 Coopers Case SECT 253 Coniers and Hollands Case SECT 270 D Dormers Case SECT 6 Devered and Ratcliffs Case SECT 33 Daws and Mollins Case SECT 105 Dogheads Case SECT 156 Davies and Percies Case SECT 164 Dean and Chapter of Windsors Case SECT 180 Dunns Case SECT 188 Dighton and Clarks Case SECT 248 E Edwards and Hallinders Case SECT 116 Executors of Sir William Cordell and Cliftons Case SECT 185 Edgar and Crispes Case SECT 215 F Farrington and Fleetwoods Case SECT 78 Firrell and the Hundred of Bs. Case SECT 109 Foskews Case SECT 114 Forster and Walkers Case SECT 198 Frankwels Case SECT 216 Freeman and Drews Case SECT 223 Farnams Case SECT 232 Frenches Case SECT 253 Fosters Case SECT 265 Fuller and Trimwells Case SECT 274 G Gregorie's Case SECT 11 Green and Everards Case SECT 58 George ap Rices Case SECT 54 Goddards Case SECT 80 Goldings Case SECT 96 Gower and others against Daubeny SECT 100 Griffins Case SECT 102 Gray and Constables Case SECT 155 Gerings Case SECT 163 Grove and Sparrs Case SECT 166 Gerrards Case SECT 205 Gittinson and Tyrrells Case SECT 208 Giles Case SECT 222 Gray a Bencher of the Temples Case SECT 233 Gomersall and Gomersals Case SECT 245 H Hynde and Sir John Lions Case SECT 16 Hartford and Gardiners Case SECT 35 Hall and the Bishop of Baths Case SECT 83 Hughs Case SECT 84 Herring and Badlocks Case SECT 107 Hunt and Somes Case SECT 137 Hoopers Case SECT 143 Heals Case SECT 154 Holland and Bonis Case SECT 168 Hawkins Case SECT 171 Harris and the Lord Mountjoys Case SECT 209 Helyards Case SECT 213 Hoopers Case SECT 226 Hore and Wridlesworths Case SECT 230 Hurlestons Case SECT 244 Holland and Drakes Case SECT 250 Hampers Case SECT 262 Humphrestons Case SECT 275 Highams Case SECT 287 J Johnson and Bellamyes Case SECT 48 Joyes Case SECT 49 Inchley and Robinsons Case SECT 57 Sir John Savages Case SECT 140 Sir John Southwells Case SECT 175 Sir John Sands and Packsall Brocas Case SECT 217 K Kirkman and Reignolds Case SECT 2 Knevet and Taylors Case SECT 144 Kingwell and Chapmans Case SECT 189 L Lovelesses Case SECT 24 Lord Cromwels Case SECT 39 Lightfoot and Butlers Case SECT 27 Leonard Lovelaces Case SECT 54 Lucas and Picrofts Case SECT 55 Lord of Northampton and Lord Saint Johns Case SECT 81 Lacy and Fishers Case SECT 87 Lawson and Hares Case SECT 98 Larges Case SECT 110 Linacre and Rhodes Case SECT 117 Lord Howard and the Town of Waldens Case SECT 184 Lodges Case SECT 190 Lord Awldeys Case SECT 194 Litchfield Cages Case SECT 203 Lord Norths Case SECT 219 Lennards Case SECT 241 M Machel and Duntons Case SECT 40 Martin Van-Henbecks Case SECT 52 Mounsel and Vernons Case SECT 64 Morgan and Chandlers Case SECT 67 Mery and Lewes Case SECT 72 Mecok and Broughton and Davies Case SECT 77 Moore and Sir John Savages Case SECT 108 Moueing and Worleys Case SECT 122 Marsh and Rainsfords Case SECT 146 Mingay and Earles Case SECT 150 Marsh and Joans Case SECT 156 Moore and Savils Case SECT 176 Sir Moil Finches Case SECT 178 Morris and Webbers Case SECT 207 Mead and Cheneys Case SECT 230 Manwood and Burstons Case SECT 255 Moultons Case SECT 263 Muttons Case SECT 293 N Nevil and Cokes Case SECT 5 Norris Case SECT 37 Noones Case SECT 90 O Ognel and Pastons Case SECT 112 Offley and Johnsons Case SECT 202 Ordway and Parrots Case SECT 269 P Perry and Somes Case SECT 30 Povies Case SECT 56 Penruddock and Newmans Case SECT 65 Partridge and Pooles Case SECT 104 Parker and Burtons Case SECT 127 Piggot and Russels Case 139 Parker and Harrolds Case 153 Phillips and Stones Case 162 Pleadalls Case 192 Paschals Case 220 Perchalls Case 234 Pretiman and Cookes Case 243 Paynes Case 256 Partriges Case 266 Q The Queen and Partriges Case 31 Queen and Jordans Case 42 Queen and Lord Lumleys Case 106 R Rosse and Morrices Case 29 Robinson and Robinsons Case 38 Rous and Artois Case 58 Rolson and Chambers Case 70 Ralph Morris Case 74 Rymersly and Ropers Case 120 Ropers Case 138 Rushtons Case 167 Sir Richard Buckleys Case 225 Rooke and Dennys Case 242 Russel and Brokers Case 258 Richmond and Butchers Case 271 S Savacres Case 4 231 Stewards Case 21 Salway and Lusons Case 47 Sands and Scagnards Case 50 Spittle and Davies Case 51 Smalman and Lanes Case 76 Seckford and Wolderstons Case 103 Sir John Southwells Case 132 Stainsby and Hales Case 141 Sands and Hempstons Case 142 Scot and Scots Case 170 Sleds Case 179 Segar and Baintons Case 191 Seots Case 204 Shrewsbury and the Inhabitants of the Hundred of Ashdon 212 Scragg and Griffius Case 273 Stamfords Case 284 Sidenham and Worlingtons Case 286 T Thatcher and Damports Case 2 Thurkettell and Teyes Case 26 Taylor and Brounsalls Case 63 Sir Thomas Bacons Case 128 Trusto and Ewers Case 130 Toley and Windhams Case 133 Thorp and Tomsons Case 165 Tomson and Traffords Case 236 V Veale and Roberts Case 134 Venables and Serjeant Harris Case 169 Vicountess Bindons Case 201 Vavasors Case 282 W Werdman and Yates Case 3 Wingfield and Seckfords Case 14 Woodward and Buggs Case 32 Wrenn and Bulmans Case 71 Sir William Pelhams Case 89 Western and Weilds Case 91 Wellocks Case 98 Sir William Walkers Case 101 Webb and Mainards Case 118 Willis and Jermins Case 119 Walter against Pery and Spring 125 Weshbourn and Mardants Case 129 Williams and Linfords Case 147 Wellock and Hammons Case 152 Willoughbys Case 159 Wye and Throgmortons Case 173 Wisemans Case 183 West and Stowels Case 187 Wood and Averies Case 237 Wiggon and Arscots Case 267 Winter and Lovedays Case 268 Y Yates Case 161 Somers and Sir Richard Buckleys Case 224 THE SECOND PART OF Reports and Cases OF LAW Argued and Adjudged in the time of Queen ELIZABETH from the Eighteenth to the Three and thirtieth Year of her Reign I. Kirkman and Reignold 's Case Mich. 30 Eliz. In the Common Pleas. Rot. 30. THE Case was That a Lease was made unto two Leases 1 Cro. 182. Habendum to them and to two others for four lives and the longer liver of them It was resolved by the whole Court That the two named in the Habendum did not take any thing and that if the first two in the Premisses of the Deed die that there shall be no occupancy For the lives of the two in the Habendum was intended an Estate to them and not a limitation of the Estate of the first two And so it was resolved 28 Eliz. in the King's Bench
made the Reservation and he relied much upon the last Reason urged by Harper upon the Statute of 27 H. 8. that this was limited to the Executors Co. 13. Rep. and not to him who limited it and therefore the possession shall be executed to the Executors to whom the use was limited and this term shall not be Assets in the hands of the Executors And he said That he had seen a Record 2 H. 8. setting forth That A. having Feoffees to his use devised that his Feoffees should sell his Lands who did accordingly now the money coming by the sale shall be Assets c. but it is not so limited in our case therefore it shall not be Assets A Lease is made to A. for life the Remainder to the right Heirs of B. B. purchaseth the Estate of A. the Estate in Remainder is not executed for it is not conveyed by the Grant of the first Grantor but by the Act of another person after the Grant. A Lease for life to A. the Remainder to a Feme sole for years they entermarry Waste is committed the Lessor brings an Action of Waste he shall recover as well the Estate for years as for life A. Leaseth unto B. for life the Remainder unto the Executors of A. for years the Remainder over in Fee to a stranger the Remainder for years is good for the Lessor cannot limit such an Estate to himself and the Executors shall take the Estate as Purchasors and the term shall be in abeyance untill the death of A. There was a case before the Lord Brook in the time of Queen Mary viz. A Lease was made for life Proviso that if the Lessee dieth within the term of sixty years that the Executors shall have the Lands as in the Right and Title of the Lessee pro termino totidem annorum which do amount to the number of sixty years to be accounted from the said Indenture The Opinion of the Iustices of the Common Pleas upon the Case was That the term was not in the Lessee for life So this future term in the principal Case was not in Tho. Cranmer But see that Case cited by Dyer reported by himself 4 Ma. 150. and there the opinion of the Court was That the same was not a Lease but a Covenant And afterwards in the principal Case Iudgment was given for the Plaintiff That the future term was not forfeited by the Attainder of Cranmer VIII 7 Eliz. In the Common Pleas. THE Case was Dyer 317. b. 318. a. J. S. is seised of a Close adjoyning to the Close of J. D. and J. S. ought to enclose against J. D. J. S. leaseth his Close to another for years rendring Rent J. D. puts in his cattle into his own Close who for want of enclosure escape into the Close of J. S. and before that they be levant and couchant Distress for Rent J. S. distrains them for his Rent It was said by Manwood Iustice that the distress was not well taken Doctor Student 150. 1 Inst 476. Brown 1 part 170. Roll Tit. Distress 1 part in toto for there is a difference when the cattel come upon the Lands of another in the default of the owner of the cattel as by escape or stray and where in the default of another For in the first case the Lord may distrain them before they be levant and couchant but in the latter case not Also a Rent reserved upon a Lease for years is a new Rent and not like unto an ancient Rent due upon an ancient Tenure betwixt the Lord and the Tenant For for a Rent reserved upon a Lease for years Roll 1 part 672. acc Hob. 265. Brown part 2 170. or for a Rent charge a man cannot distrain the cattel before they be levant and couchant upon the Lands although they come upon the Lands by escape estray c. Dyer The Lord cannot distrain the cattel which escape into the Land of his Tenant for want of enclosure of his Tenant before they be levant and couchant and yet the seignory is favoured for the antiquity of it But here is new Rent not in respect of any seignory but of reservation upon a Lease for years and therefore no distress before the cattel be levant and couchant upon the Lands Quod Harper Mounson concesserunt and Iudgment was given accordingly IX 17 Eliz. In the Common Pleas. Writ of Entry in the Per. THE Case was In a Writ of Entry in the Per against A. and B. A. pleaded several tenancy It was holden by Dyer chief Iustice that it is not any plea. Harper Iustice In Assise it is no plea for here the Land is not in demand Several Tenancy where no good Plea. but here it is a good plea and the Demandant ought to maintain his Writ Manwood In no action founded upon disseisin is this good For although the Demandant by policy will bring his Writ against the Tenant of the Land and another who he will name in the Writ upon trust and confidence and that he will not agree with the Tenant of the Lord in Dilatories for the Tenant of the Lands shall not be received to plead Dilatories Yet in that case several Tenancy is no plea for the Tenant but in a Formedon or other such like action which is not grounded upon disseisin if the Writ be brought in such manner as above the Tenant by policy that he may have the view and other reasonable delay may plead several Tenancy and so enforce the Demandant to maintain his Writ but contrary in the Case at Bar and so it was adjudged per Curiam X. Creswell and Cokes Case 19 Eliz. In the Common Pleas. Dyer 351. CReswell brought Debt against Coke and demanded 200 Marks upon the Statute of 13 Eliz. of fraudulent Deeds Gifts c. upon the second clause of the Statute Debt viz. That all parties or privies to such fraudulent Deed willingly putting in ure avowing c. as true simple Custome and given bona fide shall forfeit c. And shewed that one A. held of the Plaintiff 12 acres of customary Lands and died seised And that by the custome of the Manor Heriot the Lord was to have for a Heriot the best beast whereof his Tenant died possessed and farther shewed that the said A. in his life time and a little before his death being possessed of 30 Horses of the value of 200 Marks gave the said Horses to the Defendant with intent to defraud the Plaintiff and other Lords of their Heriots and that he went to the Defendant's house to seise his Heriot and the Desendant then strained the said Horses by reason of the Gift aforesaid for which the Action is brought To which the Defendant pleaded that the Plaintiff had seised one of the Horses nomine Herioti and as to the rest he did demurr in Law. Mounson Iustice was of opinion that the Plaintiff should recover the whole 200 Marks
of the Hundred upon this Statute and it seemed hard to the Inhabitants there that they should answer for the Robberies done at Gadds Hill because Robberies are there so frequent that if they should answer for all of them that they should be utterly undone And Harris Serjeant was of Councill with the Inhabitants of Gravesend and pleaded for them that time out of mind c. Felons had used to rob at Gadds Hill and so prescribed and afterwards by award they were charged And note That the Case was that three men were robbed and they three joined in the Action against the Inhabitants XX. Colshil and Hasting 's Case 20 Eliz. In the Common-Pleas AN Extent was sued forth upon a Statute-Merchant by Colshil against Hastings for Lands in his possession in the County of Southampton The Sheriff put the Plaintiff the Conusee in possession of parcel of a House and of Lands and suffered Hastings to continue in the rest of the House Execution executed 1 Leon. 145. by reason whereof Hastings kept the possession of the whole and held the Conusee out The Conusee to the intent that he might have full and perfect possession of the whole caused the Sheriff that he did not retorn the Writ of Extent upon which it is entred on the Roll Quod Vice-Comes nihil inde fecit nec misit breve Whereupon issued an Alias extendi facias upon which the new Sheriff did retorn That in the time of the old Sheriff a Writ of Extent issued forth c. and that the said Sheriff had extended the Lands by reason whereof the now Sheriff could not extend them upon the new Writ It was moved for the Conusee That the retorn was not good For although that the Lands be extended by the first Writ Yet because it is not retorned it is not any Execution in Law nor could the Conusee have an Assise which Manwood Iustice denied Loare Preignothory Our course is when no retorn of such Writ is made to grant an Alias at the prayers of the party and to enter upon the Roll That the Sheriff upon the first Writ Nihil inde fecit nec misit breve And that was taken by the Court to be a good and lawfull course in such Case for upon such surmise that no Execution hath been done and that upon such entry on the Roll an Alias Breve might be well awarded And afterwards this second Writ of Extent was not filed by order of the Court And note that the new Sheriff was examined upon his Oath by the Court of the Action and he said that he made the retorn by the advice of Master Plowden who told him that he might safely retorn that the Land was formerly extended and although that the said Extent was not retorned yet it is an Execution for the Party Manwood Certainly this is an insufficient retorn But perhaps Master Plowden did not know of this entry in the Roll as aforesaid for now it appeareth upon Record that no Execution was done If this entry had not been I should well agree with Master Plowden that the same is an Execution for the party although it be not retorned XXI Steward 's Case 19 Eliz. In the Common-Pleas THE Case was A. seised of certain Lands in Fee granted a Rent-charge out of the same to another and afterwards aliened the Lands to a stranger The Grantee in a Replevin did avow for the Rent and the other party pleaded that nothing passed by the Deed It was holden by the whole Court to be no plea nor can any issue be joined upon it but the Plaintiff ought to have said That he did not grant by the Deed For the same is a Rent newly created and which had not his essence before the grant and it cannot properly be said That nothing passed by the Deed but not of a thing that is in esse but of things not in esse That he did not grant is the most natural issue for a thing not in esse non potest transire XXII 19 Eliz. In the King's-Bench IN an Action upon the Case upon a Trover and Conversion to his own use per venditionem quibusdam hominibus ignotis Trover and Conversion the Defendant pleaded That the goods were bailed to him to bail over to J. S. to whom he had delivered them absque hoc that he did convert them to his own use per venditionem hominibus ignotis It was moved by Egerton that that matter is not traversable quod Wray concessit for the conversion to his own use is the cause and ground of the Action and not the selling of the goods c. XXIII Mich. 19 and 20 Eliz. In the Common-Pleas A Man was outlawed in the Court of Hustings of London and the Hustings in which the Iudgment of Outlawry was given Outlawry was holden two Weeks next after the last Hustings so as there was but two Weeks betwixt the two Hustings whereas commonly the Hustings is holden but every three Weeks and now the Sheriffs of London were in doubt if they might safely retorn the Outlawry without danger of an Action upon the Case brought against them by the party outlawed It was holden by Dyer and the whole Court that they ought and might safely retorn the said Outlawry for the Lord Dyer said That there is a Record in the time of R. 2. whereby it appeareth that in London they might hold their Hustings every Week if they pleased and afterwards he commanded Mosley and Christopher Secondaries to retorn the Outlawry which was done accordingly XXIV Lovelesse 's Case 19 Eliz. In the Common-Pleas Debt upon Recognizance 1 Cro. 608. 817. LOvelesse Serjeant brought a Scire facias upon a Recognizance and had Iudgment upon default Quod habeat Executionem and afterwards he brought an Action of Debt upon the said Iudgment and exception was taken to the Action for that he ought to proceed upon the Iudgment given upon the Scire facias and ought to sue Execution according to the said Iudgment by Elegit or Scire facias but not by Capias but the Exception was not allowed For the Recognizance is a Iudgment in it self and an Action of Debt will lie upon it without any Iudgment in the Scire facias And Debt lieth as well upon the Iudgment as upon the Recognizance it self and so was the opinion of the whole Court. XXV Eliz. In the Common-Pleas Brent 's Case Dyer 340. b. THE Case was That Robert-Brent being seised of Lands in Fee made a Feoffment thereof unto the use of himself and Dorothy his Wife for their lives and if he do survive his said Wife then to the use of him the said Robert and such a Woman as he should after marry for the Iointure of such Wife the Remainder over to a stranger in Fee And afterward with the privity and assent of the Feoffor he in the Remainder and the Feoffees join in a Feoffment to divers persons Note both Feoffments were
B. for life and if A. before such a day shall pay 10 l. to the Feoffor then to the use of the said A. for life the same is a good use to begin upon the said condition and yet if it had been limited in possession it had been otherwise and that an Vse may begin upon a contingency see the case 27 H. 8. 5. A Covenant is made by Indenture betwixt A. and B. that the Son of A. shall marry the Daughter of B. upon which B. pays 100 l. to A. and the said A. doth covenant that if the said marriage doth not take effect that then the Feoffees of the said A. shall suffer the said B. his Executors and Assigns to have the issues and profits of certain Lands until B. his Executors and Assigns shall be contented and satisfied of the sum aforesaid by the said A. his Executors or Assigns there if the marriage doth not take effect upon such contingent the use shall rise to B. And see 30 H. 8. Br. Feoffs to Uses 50. A. covenants with B. that then B shall enfeoff A. of the Manor of D. then B. and his Heirs shall be seised of the Manor of D. to the use of the said A. and his Heirs Now if A. enfeoffeth B. ut supra then c. vide librum And here in our case the second Wife doth not hold joyntly with her Husband for their Estates do not begin together for the Husband is in of his ancient Estate which he had during the first marriage notwithstanding the words of limitation to the said Husband and his second Wife but she shall take by way of Remainder Harper Iustice Vses began about 18 E. 2. after which time there was such a general liking of them that they were anew used but they did not come into common practice before the time of King Henry the sixth when the great contention fell out betwixt the two great Houses of York and Lancaster at which time Vses were in great estimation for the safety of Inheritances Afterwards Vses by practices became mischievous and prejudicial to the publick Iustice of the Realm and to many particular persons for some timentes implacitari conveyed their Lands secretly to uses so as he who had right knew not against whom to bring his action and for that divers Statutes have been made to enable the Subject to implead the pernor of the profits 4 H. 4. 7. 11 H. 6. 4. 1 H. 7. And as to the making of the Statute of 27 H. 8. the truth is that the King was displeased for the loss of Wardships and other injuries done to him for which cause he complained to the Iudges of the defect of the Law in that case who therefore shewed unto the King the causes of those injuries and losses to the King and farther shewed to the King That if the possession might be joyned to the use all would go well and all the injuries wrong and loss which came to the King by reason of such Vses Wills and secret Feoffments would be avoided For which the King commanded his Council to frame a Bill to that purpose and present it to the House of Commons in the 24 year of his Reign but it was then rejected and the King at that time would have been contented that the fourth part of the Land onely should descend and from that time the King stayed farther proceedings in the said cause until 27 H. 8. at which time it took effect And their cure was to pen the Statute so precisely that nothing should be left in the Feoffees but that the whole Estate should be executed by the Statute so as the said Statute did utterly take out all from the Feoffees Whereas it hath been said That a Vse hath been as long as any Marriage hath been and so conceived upon the Writ Causa Matrimonii prolocuti the same is not any reason for in that Case there is not any Confidence or Trust for if the marriage doth not take effect the woman shall have her Writ de Causa Matrimonii prolocuti In Conveyances we are to respect two things the form and the effect of it and in all cases where the form and the effect cannot stand together the form shall be rejected and the effect shall stand A Lease for life is made to a Feme sole she takes Husband the Lessor confirms to both of them the Husband cannot take any Estate presently according to the words of the Confirmation but because the Will of the Lessor is that an estate shall accrue to the Husband he shall have it as the Law will by way of Remainder So Lands are given to an Abbat and a secular man the form of the words purport a joynt Estate but that by Law cannot be and therefore they shall take as the Law will rather than not at all In our case here The limitation of the Vse cannot be pursued precisely according to the words which are viz. If the Husband over-live his said first Wife then to the use of the said Husband and his Wife which shall be which in words is a joynt Estate and therefore the words shall be construed After the death of the first Wife unto the use of the Husband until he marrieth and afterwards to the use of him and his second Wife in which case they shall take joyntly Dyer chief Iustice As to the beginning of Vses See Bacon's Reading upon this Stat. he conceived that the same was immediately after the Statute of Mortmain at which time all their shifts then in practice were found out which see the Statute of Mortmain 7 E. 1. Stat. de Religiosis for which cause they were after driven to find out other shifts not provided for by the Statute which were espyed by the making of the Statute of 15 R. 2. cap. 5. and in that Statute these words Behoof and Use are used which is the first place those words have been used in our Law and yet long time before that Statute Uses had been in practice as appeareth in the Exchequer 34 E. 3. the which in the time of Queen Mary when the said Record was shewed in the Exchequer to the Iustices the effect of which Record was That Walter de Chirton who was Customer of the King became indebted to the King in the sum of 18000 l. and with that the King's money had purchased in the name of his friends to defraud the King many Lands and took the profits of them those Lands so purchased were extended to the use and for the King in payment of his Debt as well as if Walter de Chirton himself had been seised of them and that by the advice of the Chancellor and the chief Iustices Now Vses by tract of time have grown in credit so as Cestuy que use have been sworn in Inquests and by the Law they might justifie the maintaining of their Feoffees when they had been impleaded which they could not have done if they had not more
interest in the Lands than strangers and they Uses have been in such reckoning and account since that an Vse hath obtained the name of an Inheritance and is now reputed amongst the Estates of Lands in our Law and therefore we say in Speeches and in penning of Statutes Estates in possession and Estates in use and a Vse cannot be limited to Parishioners no more than the Land it self so as there is a great affinity betwixt the words Lands and Use It is to be granted That the Statute of 27 H. 8. doth devest all out of the Feoffees yet it doth not devest it before that the use be vested in Cestuy que use for the words of the Statute are That the possession shall be executed in such manner quality and degree as was the Vse therefore the vesting of the Vse ought to precede the execution of the possession to it And he was of opinion That this future Vse in the principal Case limited to the second Wife did remain in the Feoffees at the first but that they had destroyed it by their Feoffment for the second Wife at the time of the Feoffment was not known and therefore it shall now accrue and he was also of opinion That this limitation to the second Wife was void at the beginning for the second Wife was not a person able to take when the Estate and Vse limited to the first Wife was determined and therefore she shall not take at all and if such an Estate had been limited in possession it should not have vested no more than now Mounson Iustice When the Feoffor and the Feoffees joyn in a Fine of that Land within which the use in future is wrapped he conceived That the Vse being in abeyance and consideration of the Law could not be touched by the Fine It is to be confessed That an Vse may be discontinued See 4. H. 7. 18. A Feoffment made to the use of A. for life and after to the use of B. in tail c. A. makes a Feoffment in Fee and dieth the same is a discontinuance of the other Vses and see 27 H. 8. 29. And in our Case the Vse might arise without any Entry of the Feoffees for the Vse is not discontinued but the Feoffees are barred by the Fine And he was also of opinion That this Vse might take effect without any Entry and take effect according to the limitation Manwood This Estate which is limited in use to the second Wife because it cannot vest in her because not known the Feoffees are yet content with it and this Vse is to grow out of their Estates at the seasonable time Then when they joyn in a Feoffment their Estate which was the root of the Conveyance and the Vses which are the branches spring not till she dieth and therefore if the Estate of the Feoffees which is the root of the Vses be destroyed by alienation of the Land before the Vses have their being as in our Case it is because that then the second was not known no use can afterwards rise for by the Feoffment they are destroyed and also every possibility of them But if the Vses had been in esse so as the persons to whom they are limited are known then the Statute shall execute the possession to such uses And as to that which hath been objected by my Brother Mounson That the Law shall keep and preserve the Vse and that notwithstanding any thing done by the Feoffees at its due time it shall rise That cannot be for the Statute of 27 H. 8. doth not speak of such Vses as this in our Case but of such Vses onely of which one may say such a use is limited to such a person and such to such a person c. and such Vses are onely executed by the Statute It may be demanded What Estate the Feoffees have in the Lands until such uses be executed It may be answered A Fee simple determinable as the Lord hath when he entereth upon his Villein Donee in tail And I conceive That this use was not in Custodia Legis quia de minimis non curat Lex and the use was such a thing of which the Law took no knowledge and in case of an Estate in possession such an use in abeyance should be bound As a Lease for life unto A. the Remainder to the right Heirs of B. A. suffers a common Recovery in the life of B. who afterwards dieth and afterwards A. dyeth the Heir of B. is bound for he had not right at the time of the Recovery This Fine levied by the manner shall not destroy the uses limited to the second Wife for as to the Feoffees they have nothing to doe with the Lands to transfer any Estate against the former limitation for the Statute leaves nothing in the Feoffees but vests all in Cesty que use and that which cannot vest in him to whom it is limited shall return to the Feoffor As if I make a Feoffment in Fee to the use of my self for life and after to the use of my second Wife all the Fee is now in me and when I take a second Wife then the Feoffees shall be seised to the use of such Wife in Remainder for her life but in the Case at Bar the Feoffees at the time when this second Wife was in esse had not any thing in the Lands for they had departed with all their Interest before by their Feoffment and Fine Note That by the first Feoffment the use was limited to D. the first Wife of the Feoffor for term of her life the Remainder in tail to A. Brent the Remainder in Fee to one Broughton and all these uses were executed by the Statute but these persons were not parties to the Livery but onely the Feoffees which had not any thing Then when they make their Letter of Attorney to make Livery of seisin not being seised of the Land the Attorney onely is a Disseisor and so nothing passed from the Feoffees if any right had been in them and for another reason nothing passed by this last Conveyance out of the Feoffees for the parties to the latter Conveyance had notice of the use and so it appeareth by the second Indenture the which makes mention of the first uses c. Dyer Here in our Case the Founders of these uses i. the Feoffor and the Feoffees have an intent to overthrow these uses for at the Common Law the Feoffees might doe it of themselves As if the Feoffees had made a Feoffment in fee in consideration of Money to others who had not notice of the uses now the uses are gone and the second Feoffees in such Cases were seised to their own uses I well know That by this Feoffment all is devested out of the Feoffees which might vest in the person to whom the use is limited but here this use which was limited to the second Wife could not upon the limitation of it vest in any person and therefore it shall
remain in the Feoffees who are put in Trust with it and therefore have interest in the Lands until all the Trusts be performed and therefore the second Wife was advised by her Council to make her Entry in name of the surviving Feoffee and the interest which the Feoffees have in the interim untill the execution of all the uses is a Fee-simple determinable for the whole interest is not devested or driven out of the Feoffees untill the whole Trust be accomplished i. untill all the uses limited upon the Feoffment are executed and have their full perfection And whereas it hath been alledged on the other side That upon the second Feoffment nothing passed out of the Feoffees for which it shall not be said in Law their Livery but that the Attorney shall be said the sole Disseisor As to that I conceive That whatsoever was lost in the Feoffees passed by that Livery If he in Reversion upon an Estate for life makes a Charter of a Feoffment and a Letter of Attorney to make Livery of seisin without words ad expellendas omnes c. if Livery be made by force thereof the Fee-simple shall pass And he cited a Case which was argued before all the Iustices of England reported by himself 2 and 3 Ma. 131. Divers Leases for years were made of the Demeans of an Abby after which the Reversion was granted to the Countess of Richmond for life after which King Edw. 6. granted the Reversion in Fee to the Earl of Warwick who made a Feoffment of all to certain persons to the use of his eldest Son and his Wife for her Iointure with a Letter of Attorney to make Livery and seisin the Attorney made Livery accordingly and by that Feoffment and Livery it was adjudged that the Fee-simple did pass So in our Case upon this second Feoffment a Disseisin is done to D. the first Wife and yet the right of the Feoffees doth pass thereby and although it shall not be taken in Law their Livery yet it shall be adjudged their confirmation because they have joined in the Deed and that shall bind their right to establish the same in the new Feoffees as if the Disseisee join in a Feoffee by Deed with the heir of the Disseisor And as to that which hath been objected that because at the time of the Feoffment the Feoffees had not any thing c. and therefore nothing shall pass and they have likened to the Case where the Father is disseised and the Son and heir doth release to the Disseisor the same shall not bind the heir after the death of his Father The same is not like our Case for there is a great difference betwixt a Release and a Feoffment for if the Son disseise the Father and maketh a Feoffment in Fee in the life of his Father notwithstanding that he had not any right at the time of the Feoffment yet he is bound XXVI Thurkettell and Tey 's Case Trin. 29 Eliz. In the King's-Bench Rot. 342. 1 Cro. 110 111. IN Debt by John Thurkettell against Edw. Tey and Mary his Wife Executrix of Robert Thurkettell the Case was That Agnes Thurkettell Mother of Robert the Testator devised certain Lands to Robert and afterwards devised 40 l. to the Plaintiff John upon condition that the said John Cum requisitus esset acquietaret retaxaret praedict Roberto omnes actiones reales personales querelas c. praedict 40 l. per dict voluntat legatis tantummodo exceptis Agnes died Robert made two Bonds to John The first was endorsed to pay 20 l. parcell of the said Legacy within a year after the death of the said Agnes so as the Plaintiff release according to the will of the said Agnes The second Obligation was with the same condition to pay 20 l. residue of the said Legacy within two years after the death of the said Agnes upon condition to release ut supra and all this matter was pleaded in barr And farther That Robert required the said John to make the Release c. which he refused and they were at issue upon the request and it was found for the Plaintiff i. Quod dict Robert. non requisivit c. upon which Verdict Iudgment was given for the Plaintiff upon which the Defendants brought Error because it appeareth upon the Record here quod Billa praedict prosecuta fuit infra duos annos post mortem dict Agnet sic ante diem solutionis For the second Bond see 46 E. 3. 28. by Finchden and Persay and see there by Persay That if my Writ be brought before the day of payment and doth depend in suit till after the day of payment that my Writ is made good for at all times the Defendant was my Debtor And afterwards in the principal Case the Iudgment was affirmed in the Exchequer-Chamber and note that the day of payment did incurr pendent the Writ XXVII Lightfoot and Butler 's Case 29 Eliz. In the Exchequer IT was said in this Case by the Solicitor General That if one holdeth of the Queen as of her Manor he shall not have the privilege of the Exchequer for that cause But if the King grants Tithes and thereupon reserveth a Rent nomine decimae and a Tenure of him there he shall have the privilege The principal Case was Co. 4. Inst 118 119. that one of the parties claimed the Lands in question as his Freehold but holden of the Queen as of such a Manor and the other claimed it as Copyhold holden of the same Manor And the Freeholder did suggest in the Exchequer That the demands of the Manor are not indifferent Clark Baron If it be so this Court shall have jurisdiction Manwood If the matter pass against you wrongfully wherefore may you not have an Assise And the Case of Beaumorris was cited but I remember not to what purpose i. The Mayor and Commonalty of Beaumorris were Patrons of a Chantry and they and the Chantry Priest made a Lease for years by Indenture in the end of which was this Clause In cujus rei testimonium tam the Priest quam the Mayor and Commonalty have put their common seal and it was moved that there was not any seal for the Priest for he could not have a common seal with the Mayor and Commonalty Clark Twenty men may seal with one seal and they may also seal with one seal upon one piece of Wax onely and that shall serve for them all if they all lay their hands upon the seal together Manwood They may all seal with one seal but upon several pieces of Wax Gent when many are parties to a Deed the words are Sigilla omnia which cannot be aptly said in this Case where all seal upon one piece of Wax XXVIII Barns and Smith 's Case 29 Eliz. In the Exchequer EManuel Barns Executor of Barns late Bishop of London 3 Len. 171. brought Debt for arrerages of Rent reserved upon a Lease for years of certain Mines demised
Inhabitants had used to till and sowe their Lands c. and they had used to be discharged of their Tithes of rakings after that the shocks were carried away And Coke who was of Council with the Parson durst not demurr upon it but traversed the Prescription Wray Chief Iustice The want of Meadow and Pasture in the Parish is the great matter here and there is not any mischief here as if they had surmised that for want of Meadow and Pasture they had eaten their Meadows with their Cattel And it was held by the whole Court that it was a good Prescription XXXI The Queen and Partridge 's Case Trin. 30 Eliz. In the King's-Bench 1 Cro. 125. IN a Quo Warranto brought against Partridge It was holden by all the Iustices That a man might prescribe to hold a Leet oftner than twice in a year and at other days than are set forth in the Statute of Magna Charta Cap. 35. because the said Statute is in the affirmative But Popham Attorney General said That one cannot prescribe against a Statute And it was moved by him If a general Pardon be granted with general Exception in it he which will have advantage of it ought to plead it and shew that he is not any person excepted for otherwise the Iudges cannot allow him the benefit of it because they do not know if he be a person excepted or not But if there be special persons excepted by name and no others excepted but so many persons there he need not to plead it for the Court may discern J. D. from J. S. 8 E. 4. 7. vide 26 H. 8. 7. If a man commits Felony and also Treason and afterwards comes a general pardon for Felony but Treason is excepted and the party is arraigned for Felony By Coke he shall have the benefit of the pardon Popham contrary For he is disabled by the Treason See Coke's Case 13 Eliz. Plowd 401. he pleaded to the Felony the general pardon by Act of Parliament and added that neither himself nor the said offence was excepted And it was agreed by the whole Court That in a Quo Warranto it is not sufficient for the Defendant to say That such a Subject hath lawfull interest to hold Leets without making title to himself for the Writ is Quo Warranto he claims them And afterwards Iudgment was given for the Queen XXXII Woodward and Bugg 's Case Trin. 30 Eliz. In the King's-Bench WOodward libelled in the Spiritual Court against Bugg and Nelson for Tithes of certain Lands called Christian-Hill 1 Cro. 188. Owen Rep. 103. 2 Roll. 63. 3 Len. 257. The Defendant sued a Prohibition and surmised That one Prettiman was seised of the said Land and in consideration of 5 l. by him paid to the said Parson it was agreed betwixt them That the said Prettiman and his assigns should be discharged of the Tithes of the said Lands during his life And afterwards the said Prettiman leased the same to the Defendants upon which a Prohibition was granted and it was holden that the party need not to make proof thereof within six months for it is not within the Statute because a composition with the Parson But now a consultation was granted in the same Cause because the agreement is shewed but no need of it the which cannot be any discharge but if it had been for a time i. Unica vice it had been good but contrary being for life Also there is not any express Grant of Tithes but onely a Covenant and agreement that he should be discharged upon which he may have an Action but no Prohibition It was said on the other side That although without Deed Tithes cannot pass in point of interest yet by way of discharge they well may Coke It was holden betwixt Pendleton and Green That upon such words of Covenant and agreement the party should hold the Lands discharged of Tithes which was denied For if the Grantee of a Rent-charge will grant it to the Lands without Deed it is not good And there was of late a Case betwixt Westbed and Pepper where it was agreed betwixt the Parson and one of his Parish that for twenty shillings Rent per ann the Parishioner should be discharged of Tithes for twenty years if he lived so long and it was holden that no Prohibition did lie thereupon a Fortiori where the Estate is for life Gawdy In a Case of grant of Tithes for life a Deed is requisite but here it is but a Covenant for money See 21 H. 6. 43. Wray If it had been for years it had been good but here it is not any Contract but onely a discharge for life which cannot be during his life without Deed And afterwards the Record was read which was Concordatum agreatum fuit between the two parties pro omnibus decimis during the time that one should be Parson and the other occupier of the said Lands that in consideration of 5 l. the said Prettiman and his assigns should hold the said Lands discharged of Tithes Wray The same is not a Contract but Promise for he doth not grant any Tithes c. XXXIII Devered and Ratcliff 's Case Pasch 32 Eliz. In the King's-Bench IN Debt the Plaintiff declared 1 Cro. 185. That he himself had brought an Action in London against one A. and had Iudgment to remove and a Capias was awarded and issued forth to take the said A. in execution upon which Non est inventus was returned upon which one of the sureties of A. being in prison in London under the custody of the Defendant upon a Plaint against him was detained in Prison for the said Debt so recovered against A. Secundum consuetudinem Civitatis praedict prout per record ejusdem Curiae apparet and after the Defendant suffered the surety to escape upon which there was a demurr The matter was If the said surety was a Prisoner in Law for the said Debt as surety of A. for in the Declaration it is not expresly laid that there was such a custom in London ut supra but onely Secundum consuetudinem c. And secondly there were two sureties of A. and the one of them onely is detained in execution Also the custome as it is here laid is not reasonable For a Scire facias ought to issue out against the sureties and they ought not to be taken or detained in execution presently For the condition of the Recognizance of sureties is That they bring in the Defendant if he be condemned or to pray the Debt and now by this custome the party who is surety being taken cannot plead the release of the Plaintiff or the death of the Defendant in his discharge as he might upon a Scire facias which was agreed per Curiam and adjudged accordingly XXXIV Clark and Green 's Case Trin. 30 Eliz. In the King's-Bench AN Action upon the Case was brought for these words He liveth by Charming Sorcery and Witchcraft It was moved
14. but contrary in a Writ of Habere facias seisinam or in a Liberate for in these Writs there are not such words and therefore although they be not retorned Execution done by virtue of them is good enough See 11 H. 4. 212. If the Sheriff by force of an Elegit doth deliver the moyety of the Land and doth not retorn the Writ if the Plaintiff will plead a new Action of Debt the Defendant may plead in Bar the Execution aforesaid although the Writ be not retorned nor doth remain upon Record and it is not like unto the Case of Partition made by the Sheriff for that must be retorned because that after the Retorn of it a secondary Iudgment is to be given scil Quod Partitio praedict firma stabilis remaneat in perpetuum firma stabilis in perpetuum tenetur says the Book of Entries 114. And Egerton the Solicitor-General cited a Case to be lately adjudged betwixt the Earl of Leicester and the Lady Tanfield Earl of Leicester and Tanfields case That such an Execution was well enough although the Liberate was not retorned The second point was Admitting that it be a good Execution If the Executors being in possession of the Manor and suffering the Conusor to hold a Court there and saying the words aforesaid in the presence of the Lord who is Conusor if the same do amount unto a Surrender or not And it was the Opinion of Wray chief Iustice That it was not a Surrender for that here the words are not addressed to the Conusor who was capable of a Surrender but to other persons And it is not like unto the Case of 40 E. 3. 23 24. Chamberlains Assise where Tenant for life saith to him in the Reversion That his Will is that he enter upon the Land the same is a good Surrender because here is a person certain who may take the Land But in our case it is but a general speech and therefore it shall not be a Surrender LXVI Baskervile and Bishop of Hereford 's Case Mich. 29 Eliz. In the Common Pleas. IN a Quare Impedit brought by Walter Baskervile against the Bishop of Hereford and others the Plaintiff counted That Sir Nicholas Arnold Knight was seised of the Advowson in gross and granted the same to the said Baskervile and others to the use of himself for life and afterwards to the use of Richard Arnold his Son in tail Proviso That if the said Nicholas died his Heir being within the age of twenty three years that then the Grantees and their Heirs should be seised to themselves and their Heirs until the said Richard had accomplished the said age Sir Nicholas died Richard being but of the age of fourteen years by force whereof the Grantees were possessed of the said Advowson c. and afterwards the Church became void and so it appertained to them to present Exception was taken to the Count by Serjeant Gawdy because the Plaintiff had not averred the life of Richard upon whose life the interest of the Plaintiff did depend and he compared the same to the Case of the Parson which had been adjudged where the Lessee of a Parson brought an Ejectione Firmae and it was found for him and in Arrest of Iudgment Exception was taken to the Declaration because the life of the Parson was not averred and for that cause the Iudgment was stayed Anderson Vpon the dying of Sir Nicholas Richard being but of the age of fourteen years an absolute Interest for nine years vested in the Grantees not determinable upon the death of Richard or rather they are seised of a Fee determinable upon the coming of Richard to the age of 23 years Rhodes and Windham Iustices contrary and that here is an Interest in the Grantees determinable upon the death of Richard within the term for if Richard dieth without issue within the term the Remainder is limited over to a stranger And as to the Exception to the Count it was argued by Puckering Serjeant That the Count was good enough for although the life of Richard be not expresly added yet such an averment is strongly implied and so supplyed For the Count is Quod dictus Nich. obiit dicto Richardo being of the age of fourteen years non amplius by force of which the Plaintiff was possessed of the said Advowson quo quidem Nich. sic possessionato existente the Church voided and possessed he could not be if not that the said Richard had then been alive and that is as strong as an Averment See 10 E. 4. 18. In Trespass for breaking of his Close the Defendant pleaded That A. was seised and did enfeoff him to which the Plaintiff said That long time before A. had any thing B. was seised and leased to the said A. at will who enfeoffed the Defendant upon whom B. re-entred and leased to the Plaintiff at will by force whereof he was possessed untill the Defendant did the Trespass and that was allowed to be a good Replication without averring the life of B. who leased to the Plaintiff at will for that is supplied by the words scil virtute cujus the Plaintiff was possessed untill the Defendant did the Trespass See also 10 H. 7. 12. In an Assise of Common The Defendant made Title that he was seised of a House and a Carve of Land to which he and all those whose Estate he hath c. had common appendant and doth not say That he is now seised of the House but the exception was disallowed for seisin shall be intended to continue untill the contrary be shewed LXVII Morgan and Chandler 's Case Trin. 29 Eliz. In the King's-Bench IN Debt for Arrerages of Rent by Morgan against Chandler It was found by special Verdict That the Land out of which c. was assured by an Act of Parliament to the Marchioness of Northampton for the term of her life the remainder to the Lady Bourcher her daughter and the heirs males of her body the remainder to King H. 8. in Fee And it was ordained by the same Act Quod omnes concessiones dimissiones Anglice Grants and Leases factae vel in posterum fiendae by the said Marchioness of the Lands aforesaid per script Indentat dict Marchio bonae validae in Lege erunt durante termino c. The Marchioness made a Lease for 21 years to Kenelm Throgmorton rendring 10 l. Rent who assigned the same to the Defendant The Lady Bourcher died without Issue the Marchioness died and if the Lease should now bind the Queen was the Question And it was moved by Clark of Lincoln's-Inn That it should for the King was party to the Act of Parliament and those Estates for life in Tail and in Fee are all as one Estate and derived out of one Estate and the Estate of the King is bound with the Lease and it was moved by Broughton That the Lease should not bind the Queen and so by consequence not her Patentee and he
in execution it was adjudged in this Case that the Conusee should have the Corn sowed The same Law in case of a Recognizance LXXVI Smalman and Lane 's Case Trin. 29 Eliz. In the Common-Pleas THE Case was a Capias upon an original Process was delivered to the new Sheriff of Warwick against Lane at the suit of Smalman And the Sheriff informed the Court that before that the Process was directed to him That the said Lane was taken in Execution by the old Sheriff upon a judgment given against him in the King's-Bench and that the said old Sheriff had imprisoned the said Lane by force of the Execution in his own house and there he remained and prayed the advice of the Court what retorn he should make upon that matter because the said Lane was never in his possession for all the other prisoners which were in the Gaol and in the ordinary Prisons were delivered to him and the old Sheriff would not bring Lane to the place where the other Prisoners were delivered And it was the opinion of all the Iustices That by the Law the old Sheriff ought to deliver the body of him who is in his custody by view to the new Sheriff and such Prisoners ought to be brought unto him to view and from that time the Law shall adjudge such Prisoners to be in the possession of the new Sheriff and not before for he is not bound to go to them not being in the ordinary Prison of the County Anderson The new Sheriff may retorn That the said Lane is in Execution in custodia sua and so charge himself For although the Office of the old Sheriff be determined yet it is not an escape so long as the party be in custodia and not at large Periam contrary It is an escape in the old Sheriff as soon as his authority is determined the Prisoner not delivered See now C. 3. part 71. Wesby's Case LXXVII Megot and Broughton and Davie 's Case Mich. 29 Eliz. In the King's-Bench 1 Cro. 105. IN an Action upon the Case upon Assumpsit it was found by Nisi prius for the Plaintiff and afterwards before the day in Bank one of the Defendants died and after Iudgment given the other Defendant brought a Writ of Error in the same Court where the Iudgment was given and assigned an Error in fact scil the death of one of the Defendants pendant the Writ Roll 798. b. 3 Len. 96. Vide 2 E. 3. 21. It was said that the Case is not like the Case of an Action of Trespass for every Trespass done by many is several by each of them but every Assumpsit is joint and not several Another point was moved If the Court could reverse their own Iudgement Quaere LXXVIII Farrington and Fleetwood 's Case Trin. 29 Eliz. In the Exchequer THE Case upon the Statute of 31 H. 8. of Monasteries was this 3 Len. 164 165. ante 333. Plus The Abbat and Convent of A. c. 29 H. 8. made a Lease of certain Lands for three lives to begin after the death of one F. if they so long live and afterwards 30 H. 8 within a year before the dissolution they make another Lease to Fleetwood If the first Lease in the life of the said F. be such an Estate and Interest as by virtue of the said Statute shall make the second Lease void was the Question for it was not in esse but a future Interest Manwood All the reason that hath been made for the second Lease is because the first Lease is but a possibility for F. by possibility may survive all the said three and so it shall never take effect But notwithstanding be it a possibility or otherwise it is such a thing which may be granted or forfeited and that during the life of F. And note the words of the Statute If any Abbat c. within one year next before the first day of this present Parliament hath made or hereafter shall make any Lease or Grant for years life or lives of any Manors c. whereof and in which any Estate or Interest for life or years at the time of the making of any such Lease or Grant then had his being or continuance and hereafter shall have his being or continuance and then was not determined c. shall be void c. And here is an Interest and that not determined at the time of the making of the Lease to Fleetwood And of such Opinion were all the Barons and divers other Iustices and therefore a Decree was made against the Lease c. LXXIX Beaumont 's Case Trin. 29 Eliz. In the Exchequer NOte it was holden by all the Barons in the Exchequer Owen Rep. 46. That a Duty which is not naturally a Debt but by circumstances onely as Debt upon a Bond for performance of Covenants or to save harmless may be assigned over to the Queen for a Debt but in such case a present Extent shall not issue but a Scire facias shall issue forth to know if the party hath any thing to plead against such Assignment LXXX Goddard 's Case Trin. 29 Eliz. In the Exchequer IT was moved in the Case of Goddard concerning the Manor of Staple in Hampshire 11 Leon. 8. If the Tenant of the King of Lands holden in Capite be disseised and the Disseisor aliens the Lands and afterwards the Disseisee doth re-enter Manwood said That the Land shall not be charged with a Fine for alienation without licence because the Title of the Alienee grew under the wrong of the Disseisor but the person of the Disseisor shall be charged with such Fine Tenant of the King in Capite makes a Lease for life the Lessee for life makes a Feoffment in Fee without licence the Lessor re-entreth neither his person nor the Land shall be charged But if my Feoffee upon Condition maketh a Feoffment without license and I re-enter for the Condition broken now my Land shall be charged with the Fine upon Alienation for the Feoffee was in by me by good and lawfull Title because he had power to make a Feoffment over although subject to the Condition So if Tenant in tail or the Husband seised in the Right of his Wife make a Feoffment in Fee and afterwards the Land is recontinued the Fine accruing for Alienation without licence shall bind the Land And if Tenant for life loseth issues and dieth the Lands shall be charged with the same LXXXI The Lord of Northampton and Lord St. John 's Case Trin. 29 Eliz. In the Exchequer 2 Roll. 195. Co. 12. 1 2. Co. 4. 95. Dyer 262. THE Lord of Northampton had by ancient Letters Patents bona catalla felonum fugitivorum within the Isle of Ely and one dwelling within the Island was attainted of Felony to whom another was indebted by Obligation and the money by the Condition of the Bond was to be paid at a Manor of the Lord St. John's who within his Manor
case Tithe shall not be paid but of the other part If the most part of the Wood be Sallows c. and here and there sparsim groweth an Oak c. and the Owner cuts down all the Wood and makes Faggots as before Tithes in such case shall be paid of them CVI. The Queen and Lord Lumley 's Case Trin. 26 Eliz. In the Exchequer Hob. 304. 3 Len. 101. BEtwixt the Queen and the Lord Lumley it was moved in the Exchequer Queen Mary seised of the Rectory of D. granted advocationem Ecclesiae de D. If now by this Grant the Advowson passeth as now disappendant or the Rectory it self passeth as appropriate or nothing at all passeth was the Question And by Manwood chief Baron the Advowson doth not pass but doth remain appropriate as it was before for the Church as it was appropriate by a judicial act so without such an act it cannot be disappropriate And he said That by the Grant of the Advowson the Rectory did not pass for by the Appropriation the Advowson is gone and is not in esse and so by consequence cannot be granted And it is not within the Statute of 4 and 5 Ph. and Ma. of Confirmation of Grants of the King for the said Statute doth onely help misrecital misnaming mistaking c. but here there is no such thing in rerum natura as the Patentee pretendeth to be passed by the Patent and if it were in the case of a Subject nothing would pass Sand's Case as it was adjudged in one Sand's Case 11 Eliz. And he said that at this day a Parsonage may be disappropriated but that ought to be by a judicial act as by Presentment and not by any other private act of the Proprietor Roll. 240. Tit. Appropriat And so he said a Church was disappropriated by the Lord Dyer by Presentment which of late he made unto it CVII Herring and Badlock 's Case Trin. 26 Eliz. In the King 's Bench. 3 Len. 94. A Replevin was brought by Herring against Badlock who avowed for damage-feasant and shewed That the Lady Jerningham was seised of such a Manor whereof the place where c. and Leased the same to the Defendant for years c. The Plaintiff said That long time before King Henry the eighth was seised of the said Manor and that the place where c. is parcel of the said Manor demised and demiseable by Copy c. And that the said King by such a one his Steward demised and granted the said parcel unto the Ancestor of the Plaintiff whose Heir he is by Copy in Fee c. and upon that there was a Demurrer because that by that bar to the Avowry the Lease set forth in the Avowry is not answered for the Plaintiff in the bar unto the Avowry ought to have concluded And so was he seised by the Custome until the Avowant praetextu of the said term for years entred And so it was adjudged CVIII Moor and Sir John Savage 's Case Trin. 28 Eliz. In the King 's Bench. IN an Action upon the Case by Moor against Sir John Savage and his Wife for that the said Lady had reported That Moor was a lying Knave and a perjured Knave The Defendant justified That where an Estate for life absolute was devised to the said Lady by her former Husband the Plaintiff had deposed that the said Land was devised to the said Lady if she kept her self sole Postea 102 103. To which the Plaintiff replicando said Of his own wrong without such cause Egerton Solicitor did demur upon it for he said The Plea goeth to all the justification before for where part of a Plea scil the justification is matter of fact and part is matter of Record there Of his own wrong c. is no good Plea but there ought to be a special Traverse absque hoc that he so deposed or absque hoc that the Devise was absolute And this Plea here Of his own wrong c. goes to matters in fact onely and such which lie in the notice of the Iury See 5 H. 7. 6. Although that divers matters are alledged in the bar yet this Plea Of his own wrong without such cause c. extends to all where no matter of Record is alledged in the Plea As in false Imprisonment a Capias is directed to the Sheriff being Defendant to arrest the Plaintiff in such case such general Plea is not good but there he may plead Nul tiel Record See also 13 H. 7. 3. 21 H. 6. 5. And here a principal matter in the justification is matter of Record and therefore such a Plea here is not good Altham contrary If the principal matter in such justification be matter of Record then such a Plea is not sufficient but if the matter of Record be but inducement then the Plea is good enough And he vouched 45 E. 3. 7. In Trespass the Defendant saith That he is Forester of the said Forest of B. and at a Swanmoot it was presented by the Foresters Verderors Regardors and Agistors That the Plaintiff had taken Deer in the said Forest upon which the Defendant came to the Plaintiff and prayed him to find Pledges to answer before Iustices in Eyre c. and he refused so to do for which cause he kept the Plaintiff until he made agreement and demanded Iudgment if any wrong c. and the Plaintiff replicando said Of his own wrong c. and the issue was accepted of by the Court yet he said the Presentment in the Swanmoot was not matter of Record but onely inducement and the Request to find Sureties which he would not for which cause he took and imprisoned him the same was the principal matter and but matter in fact and therefore he said that the Plea was good and he said that in this case the Oath is not on Record And Coke said That in the Cases put by Altham Of his own wrong without such cause is a good Plea with an absque hoc unto the matter of Record See the Book of Entries 320. see 30 H. 8. Action upon the Case 104. without that that he swore modo forma It was adjourned CIX Firrell and the hundred of B 's Case Trin. 28 Eliz. In the Common Pleas. IN an Action upon the Statute of Hue and Cry by Firrell against the Hundred of B. The Defendants pleaded Not guilty and in Evidence the Plaintiff to prove that he was robbed as he had declared offered to the Iury his oath in making good his Declaration which Anderson and Periam Iustices utterly refused But Windham affirmed That such an oath had been accepted in the Case of one Harrinton where the Plaintiff could not have other Evidence to prove his Cause in respect of secrecy For those who have occasion to travel about their business will not acquaint others what money or other things they have with them in their journies And we see that in some causes the
Law doth admit the oath of the party in his own cause as in Debt the Defendant shall wage his Law Periam That 's an ancient Law but we will not make new Presidents for if such oath be accepted in this Case by the same reason in all cases where is secrecy and no external proof upon which would follow great inconveniencies and although such an Oath hath been before accepted of and allowed here yet the same doth not move us and we see no reason to multiply such Presidents The Declaration is that the Plaintiff was robbed of 10 l. de denariis ipsius querentis and upon the Evidence it appeareth That the Plaintiff was the Receiver of the Lady Rich and had received the said money for the use of the said Lady and exception was taken to it by Shuttleworth but it was not allowed for the Plaintiff is accomptable to the Lady Rich the said money And it was agreed that if he who was robbed after he hath made Hue and Cry doth not farther follow the thieves yet his Action doth remain CX Large 's Case Mich. 29 Eliz. In the King's-Bench 3 Len. 182. THE Case was A. seised of Lands in Fee devised the Lands to his wife until William his son should come to the age of 22 years and then the Remainder of part of the Lands to his two sons A. and John The Remainder of other part of his Lands to two others of his said sons upon condition That if any of his said sons before William should come to the age of 22 years shall go about to make any sale of any part c. he shall for ever lose the Lands and the same shall remain over c. And before his said son William came to the age of 22 years one of the other sons Leased that which to him belonged for 60 years and so from 60 years to 60 years until 240 years ended c. Bois A. and J. are joynt-tenants of the Remainder and he said That the opinion of Audley Lord Chancellor of England is not Law scil where a man deviseth Lands to two and to their heirs they are not joynt-tenants as to the survivor but if one of them dieth the survivor shall not have the whole but the heir of his that dieth shall have the moyety See 30 H. 8. Br. Devise 29. And he said That this Lease although it be for so many years is not a sale intended within the Will and so is not a Ioynture 46 E. 3. One was bounden that he should not alien certain Lands and the Obligor did thereof enfeoff his son and heir apparent the same was held to be no alienation within the Condition of the Obligation Of the other side it was argued The remainder doth not vest presently for it is incertain if it shall vest at all for if William dieth before he cometh to the age of 22 years it was conceived by him that the Remainder shall never vest for the words of the Will are Then the Lands shall remain c. 34 E. 3. Formedon 36. Land is devised to A. for life and if he be disturbed by the heir of the Devisor that then the Land shall remain to D. Here D. hath not any remainder before that A. be disturbed It was farther argued that here is a good Condition and that the Devisee is not utterly restrained from sale but onely untill a certain time scil to the age of William of 22 years And it was said that this Lease is a Covenous Lease being made for 240 years without any Rent reserved As such a Lease made for 100 years or 200 years is Mortmain as well as if it had been an express Feoffment or Alienation But it was said by some Antea 36 37. that here is not any sale at all nor any lease for the Lessor himself hath not any thing in the Land demised As if a man disseiseth a Feme sole and seaseth the Lands and afterwards marrieth the disseisee he shall avoid his own Lease 5 E 3. One was bound that he should not alien such a Manor the Obligor alieneth one Acre parcell of it the Obligation is forfeit See 29 H. 8. Br. Mortgage 36. A. leaseth to a religious house for 100 years and so from 100 years to 100 years untill 800 years be encurred the same is Mortmain Vide Stat. 7 E. 1. Colore termini emere vel vendere And in the principal Case if the Devisee had entred into a Statute to the value of the Land leased by the intent of the Will the same had been a sale and such was the opinion of the whole Court and by the Court the word in perpetuum shall not be referred to the words precedent but unto the words following scil in perpetuum perdat the Lands And if a custome be in the case that the Infant of the age of 15 years may sell his Lands if he make a Lease the same is not warranted by the custome And afterwards it was adjudged by the whole Court that the Lease made as before was a sale within the intent of the Will of the Devisor CXI Brooke 's Case Hill. 29 Eliz. In the King's-Bench APpeal of Burglary was brought against Brooke who was found guilty and before Iudgment given the Plaintiff died And now Egerton moved that Iudgment should be given for the Queen upon that verdict or at least that the Declaration in the Appeal should be in lieu of an Indictment and that the Appealee be thereupon arraigned and put to answer the same For if the Appellant had been Nonsuit or released the Defendant should be arraigned at the suit of the Queen Coke God hath now by the death of the party delivered the Defendant and it is not like where the Plaintiff releaseth for there it is the default of the Act of the party but here it is the Act of God and he held it for a rule That where auterfoits acquit is a good Plea there also auterfoits convict shall be a good Plea And it was holden in Sir Tho. Holcroft's Case Sir Thomas Holcroft's Case That where the party is convicted at the suit of the Queen there the Appeal doth not afterwards lie Wray If the Appellant dieth before Verdict the Defendant shall be arraigned at the suit of the King But if his life hath been once in jeopardy by Verdict he conceived that it shall not again be drawn into danger and some were of opinion that the Defendant should be arraigned at the suit of the Queen upon the whole Record and plead auterfoits acquit and that they said was the surest way CXII Ognel and Paston 's Case 29 Eliz. In the Exchequer .. 1 Cro. 64. CLement Paston was Defendant in an Action of Debt brought against him by George Ognel upon an Escape and the Case was this Francis Woodhouse was bound in a Recognizance to the said Ognel Whereupon Ognel sued forth a Scire facias and upon two Nihils retorned had
also of Statutes We cannot deny but that we have Lands of the Conusor and of the Gift of the Conusor our Ancestor whose Heir we are who was indebted to the Queen and yet we are not within this Statute Was or shall be indebted shall not be intended after the Gift made for if he first convey his Land and afterwards becomes indebted the same is not within the Statute and where a mischief is to be remedied by a Statute the remedy in exposition of the Statute is to be applied according as the mischief doth require Shall be is to be intended of future Debts after the Statute and in our case the Father was not Receivor or other Officer to the Queen And if this Statute should be so construed the Father might take 10000 l. for the Marriage of his son and assurance of Lands unto him and then if he will acknowledge a Debt to the Queen he should defeat the whole which should be a very great mischief The words are By Gift after the Debt acknowledged to the Queen And he cited the Case 19 Eliz. Plow 191. betwixt Ludford and Gretton upon the Statute of 18 H. 6. the words of which are That whatsoever Warrant hereafter to the Chancellor of England addressed the day of the delivery of the same it be entred of Record in the Chancery and that the Chancellour make Letters Patents upon the same Warrants bearing date the day of the said delivery in the Chancery and not before and all Letters Patents made to the contrary shall be void And the Case was That a Warrant was directed to the Chancellour for the making of Letters Patents and delivered to him before the making of them but the day of the delivery was not entred of Record c. And it was holden that notwithstanding that the Letters Patents were good for the mischief at the Common Law intended to be reformed by that Act was not the post-dating of the Letters Patents but the ante-dating and therefore that ought to be principally taken into consideration which mischief being understood the words of the said Statute are to be applied to it ipsae etenim Leges cupiunt ut jure regantur i. with an Equity according to the Mischief and not always according to the precise words and in that case it is sufficient if the Letters Patents bear date after and not before the delivery of the Warrant and that was the matter intended to be reformed Also as our Case here is we are not within this Statute for the words are Of the Gift of his Ancestour but here the Son hath not the Lands of the Gift of his Ancestour but rather by the Statute of Vses and so he is in the Post and not in the Per by his Ancestour for here the Fine was levied to divers persons unto the Vses aforesaid and here the Gift was not a mere gratuity to his Son but in consideration that he should marry the Daughter of Sir Edw. Huddleston and also the Father was the King's Debtor after the Gift and not before Popham Attorney-General to the contrary The letter of the Statute is with us for he comes in of the Gift of his Ancestour who was indebted to the Queen and although that the Gift was by way of use yet the precedents in the Common-Pleas and other Courts are That he may declare of the Feoffment of such a one although it was by way of use and he said If A. be bound to enfeoff B. of such Lands if he maketh a Feoffment to the use of B. and his Heirs he hath well enough performed the Condition and if the Case should not be within the Statute then should that branch of the Statute be idle and to no purpose For if the Ancestour be seised and becometh indebted to the Queen and after makes a conveyance ut supra the same is provided for by the first branch of the Statute For the Land is liable to the Recognizance or Obligation made to the King and that they shall be as effectual as a Statute Staple and reason requires that the son who comes in by mere gratuity of his Ancestour should be charged And it was a common practice before the making of that Statute That the King's Officers would convey their Lands to their children and then become the King's Debtors for the remedy of which mischief the Statute was made and the Statute of 27 Eliz. doth not respect the Heir because he is Heir but as a purchasor onely and that upon good consideration Coke If any fraud can be found in our Case then without doubt we should be within the Statute but being upon good consideration it is out of the Statute nor was there any purpose in the father when he made the said Conveyance to become the King's Debtor or Officer to him for if there were then he is within the Statute also the Gift had been a mere gratuity c. And afterwards at another day the Case was moved by Coke and he said That here is not any Gift because it was in consideration of Marriage and then no gift for it is an old Proverb What is freer than gift Egerton The father giveth to his son and heir the same is within the Statute and yet here is consideration scil of blood Coke contrary Where the father giveth to his younger son or to his daughter which is not his heir and of that opinion was Manwood chief Baron And afterwards as Coke reported the son and his Lands were discharged CXV Amner and Luddington 's Case Mich. 26 Eliz. In the King's-Bench Error 3 Len. 89. 8 Co. 96. ERror was brought in the King's-Bench by Amner against Luddington Mich. 25 and 26 Eliz. Rot. 495. The Case was That one Weldon was seised and leased unto Pierpoint for ninety nine years who devised the same by his Will in this manner I bequeath to my Wife the Lease of my House during her life and after her death I will that it go amongst my Children unpreferred Pierpoint died his Wife entred and was possessed virtute legationis praedict and took Husband one Fulshurst against whom one Beswick recovered in an Action of Debt 140 l. upon which Recovery issued forth a Fieri facias and upon that a Venditioni Exponas upon which the Sheriff sold the said term so devised to one Reynolds Fulshurst died his Executor brought Error to reverse the Iudgment given against the Testator at the Suit of Beswick the Wife did re-enter and sold the Land and died Alice an unpreferred Daughter of Pierpoint did enter and upon that matter found by special Verdict in the Common-Pleas the entry of Alice was adjudged lawfull upon which Iudgment Error was brought in the King's-Bench And it was argued upon the words of the Devise because here the House is not devised but the Lease it self scil all his interest in the thing devised And it is not like unto the Case betwixt Welchden and Elkington 20 Eliz. Plow 519.
upon the floor there so as vi ponderis it fell down To which the Defendant hath said That the walls were ruinous in occultis partibus and doth not answer to the surcharging scil Absque hoc that he did surcharge it Clark Baron It is a general Rule That every material thing alledged in the pleading ought to be traversed confessed and avoided which the Defendant hath not done here but he would excuse himself through the default of another and answer nothing to that with which he himself is charged And afterwards Iudgment was given in the Court of Exchequer for the Plaintiff Whereupon afterwards the Defendant brought a Writ of Error in the Exchequer Chamber where the Case was argued again But there the Iudgment given in the Court of Exchequer was affirmed See this Case reported short in Popham's Reports lately published CXVII Linacre and Rhode 's Case Trin. 31 Eliz. In the Common Pleas. Co. Rep. Blomfield's Case 3 Len. 230. THE Case was That Linacre was bound in a Statute and his body taken in Execution and the Sheriff voluntarily set him at large and afterwards the Conusee sued Execution of the Lands of the Conusor who thereupon brought an Audita Querela It was moved by Yelverton Serjeant That by that voluntary discharge of him by the Sheriff the whole Execution was discharged for the Execution is intire See 15 E. 4. 5. Where the Conusee in a Statute Merchant hath the body and lands of the Conusor in Execution and afterwards the Conusee surrendreth his Estate which he hath by Extent now the Execution of his body is discharged and the Conusor shall have a Scire facias or Audita Querela to discharge his body So if three Conusors be in Execution and the Conusee doth discharge one of them the same is a discharge of them all and in the principal Case the body is the principal and therefore the discharge of the principal part of the Execution is the discharge of the whole Hammon Where the Conusee himself dischargeth the Execution in part it is good for the whole but where discharged by the Sheriff Nihil operatur Anderson If the Conusor dieth in Execution yet the Conusee shall have Execution against his Heir of his land for the having of the body in Execution is not any satisfaction to the party for his body is but a pledge untill the money be paid and there is no reason that the act of the Sheriff should discharge the Execution Windham to the same intent And if the Conusee sueth Execution and hath the body of the Conusor in Execution this day he may the next day sue Execution of the lands and the next day after of the goods and if the Conusee doth discharge the body the whole Execution is discharged and it is true That if A. recovereth against B. in an Action of Debt and B. is taken by a Capias ad satisfaciendum and afterwards the Sheriff permitteth B. voluntarily to escape here B. is discharged although it be not the act of the party for there the Plaintiff had a full Execution which is not here for in Case of Execution upon a Statute-Merchant the Execution by the body is not the full Execution and therefore although the Sheriff hath discharged the body yet the Conusee may have Execution of the goods and lands but not of the body and afterwards Iudgment was given against the Plaintiff That the Audita Querela did not lie and that Execution might be sued of the goods and lands but not of the body CXVIII Webbe and Mainard 's Case Trin. 32 Eliz. In the Common Pleas. IN Ejectione firmae The Case was Walter Goldsmith seised of certain lands made a Feoffment to the use of himself for life and after to the use of John his eldest son in Fee Proviso That after his death his said son shall pay unto his younger son William 30 l. by 3 l. per ann at the Feast of St. Michael untill the entire sum be paid and if he fail of payment then to the use of the said William and his heirs Will. Goldsmith the Feoffor dieth the money is not paid but afterwards the said younger son makes an Acquittance and thereby acknowledgeth the Receipt of the said money according to the Proviso John dieth Now if the younger son may enter And first if the younger son be concluded by that Acquittance to say that the 30 l. was not paid And if he be not concluded Then if because that the words are but words of limitation the younger brother hath Title of Entry and then if this Entry be bound by the descent from John to his Heir or if John by continuance of the possession after the breach of the Proviso be a Dissesor or not were Questions propounded to the Court which the Court took time to consider of yet it was then said That the use was settled in William and the possession executed unto it but not such a possession upon which an Assise or Trespass lieth CXIX Willis and Jermine 's Case Hill. 31 Eliz. In the King's Bench. Rot. 647. IN Ejectione firmae It was found by special Verdict 1 Cro. 167. Roll Tit. Estate 830. That the Dean and Chapter of Exeter Leased the Land where c. to Jermine rendering Rent to be paid at their Chapter-house at Exeter and for default of payment that such Lease shall be void and cease and that the said Jermine conveyed his interest to the Defendant and afterward the Rent was demanded at the Chapter-house but not paid and afterwards The Dean and Chapter by the name of Dean and Chapter of St. Mary of Exeter where they are incorporate by the name of Dean and Chapter of St. Mary in Exeter make an Indenture of Lease for forty years in their Chapter-house to Willis and thereunto put their seal in the Chapter-house and made a Letter of Attorney to another to enter and to make Livery of the said Deed which was done accordingly it was moved by Harris Serjeant That this Lease made in manner c. is not good for the Corporation is misnamed i. of Exeter for in Exeter but the Court disallowed that Exception for there is not any material variance and so it was said it hath been ruled And he said that for another cause the Lease is not good for when the Dean and Chapter in their Chapter-house make this Indenture of Lease Davis Rep. 42. and set their Chapter-seal to it It was their Deed presently without other delivery and then Jermine being in possession at the time of the putting of the seal to it they were out of possession thereof and so the new Lease void because they were not in possession at the time of the making of it for no delivery is necessary to the Deed of a Corporation but the date of the sealing of it makes it a perfect Deed and then the delivery of the same by the Attorney is of no effect Wiat to the
's Case Mich. 31 Eliz. In the King 's Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 291. 1 Len. 247. 3 Len. 174. That whereas he was possessed of a parcel of Land called the Parsonage lying adjoyning to a certain River from the 29 of May 29 Eliz. untill the day of the bringing of this Writ the Defendant had the said twentieth day of May stopt the said River with certain Loads of Earth and so it continued untill the fourteenth day of February by which his land was drowned and so he had lost the profit of it by that time And it was moved in Arrest of Iudgment That upon the Declaration there doth not appear any cause of Action for the Plaintiff hath made Title to the Land drowned from the twentieth of May so as that day is excluded and the Nusance is said to be made the twentieth day and so it appeareth the Nusance was before the possession of the Plaintiff and if it were so then cannot he complain of any wrong done before his time To which it was answered That although the stopping was made before his possession yet the continuance of the same is after and a new wrong for which an Action lieth as 5 H. 7. 4. It was presented That an Abbat had not cleansed his Ditch c. by reason of which the Highway is stopt The Successor shall be put to answer to the said Indictment by reason of the continuance of it And see that continuation of a Nusance is as it were a new Nusance 14 and 15 Eliz. 320. And it may be that the Plaintiff was not damnified untill long time after the twentieth day of May scil after the stopping And the words of the Writ here are satisfied and true And afterwards Iudgment was given for the Plaintiff CXXX Trusto and Ewer 's Case Pasc 31 Eliz. In the King's-Bench 1 Cro. 23. IN this Case it was agreed for Law That if a Controversie be betwixt two for the Title of a Lease for years and they submit the matter to Arbitrement and the Arbitrators award that one of them shall have the term the same is a good Gift of the interest of the term See 12 Ass 25. 14 H. 4. 19. 24. But if the Award be that the one shall permit the other to enjoy the term the same is no Gift of the interest therein See as to the Arbitrement 9 E. 4. 44. CXXXI Andrew 's Case Pasc 32 Eliz. In the King 's Bench. 1 Cro. 214. IN the Case of Andrews of Grays Inn it was holden by Gawdy and Fenner Iustices That if a Lease for years be made by Deed indented with these words demisi ad firmam tradidi That upon that Writ of Covenant lieth against the Lessor if he himself entreth upon the Lessee but contrary if a stranger enter if it hath not clause of Warranty For by Fenner when Covenant is brought upon that word Demisi the Plaintiff shall recover the term it self but not damages and that cannot the Plaintiff do when a stranger entreth and that was holden for clear Law See 9 Eliz. Dyer 257. A covenant against the Heir in such case CXXXII Bigg and Clark 's Case Hill. 32 Eliz. Rot. 549. In the King 's Bench. IN an Action upon the Case in the Court of Hertford the Plaintiff declared How that the Defendant hired a Horse of the Plaintiff to carry three Bushels of Coals from Ware to his House in Hertford and that the Defendant in consideration thereof did promise the Plaintiff quod ipse in via praedicta nollet onerare the said Horse aliter than with the said three Bushels of Coals And the Plaintiff said That the Defendant had loaded the said Plaintiff's Horse with a greater weight than with the said Coals and so had hurt his Horse upon which the Plaintiff recovered And Error was brought and the Error assigned was this That it is not specially shewed how the Defendant aliter loaded the said Horse with what thing As 19 H. 6. In Debt against Executors they plead That they have onely expended such a sum of the Goods of the Testator in Funeral expences absque hoc that they have administred aliter vel alio modo the Plaintiff cannot Reply and say that they have administred aliter vel alio modo without shewing how Another Error was assigned because it is not certainly shewed how the Horse was hurt but that Exception was not allowed for it is not the point of the Action but for the first matter the Iudgment was reversed CXXXIII Toley and Windham 's Case Trin. 32 Eliz. In the King 's Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 206. 3 Len. 150. That whereas certain controversies were betwixt the Plaintiff and Defendant for the profits of certain Lands which the Father of the Defendant had taken in his life time and whereas he had brought a Writ of Subpoena out of the Chancery against the Defendant for the said profits taken by the Father of the Defendant in his life intending to put in a Bill against the Defendant in the said Court The Defendant in consideration that the Plaintiff would stay his intended Suit promised That if the Plaintiff can prove that the Father of the Defendant took the profits or had the possession of the said Land under the Title of the Father of the Plaintiff that he should pay to him for all the said profits And farther declared That he had proved that his Father had taken the profits under the Title of the Father of the Plaintiff Coke took up Exception to the Declaration because it is not shewed How and by what means under the Title of the Father of the Plaintiff he took the profits as by Lease for that is traversable Gawdy Iustice The Son hath not any cause of Action or Suit for the profits taken in the time of the Father therefore the staying of Suit arising from such matter is not any consideration But as to the other Exception because it is not shewed how and by what Title he took the profits it is well enough As unto the other Exception it was moved at another day that there was a Case betwixt Stone and Withypool An Infant promiseth to pay a simple Contract Stone and Withypool's Case and thereupon there was a Suit in the Chancery but it was holden that it was not maintainable for the promise was void because there was no consideration And it was agreed by all the Iustices that this Action would not lie for the Plaintiff hath declared That where certain Controversies were betwixt the Father of the Defendant and him scil the Plaintiff himself for the profits of certain Lands which the Father of the Defendant had taken in the time of the Father of the Plaintiff c. and he doth not shew that he himself is Heir or Executor of his Father and therefore the Chancery cannot give him any remedy And on the other
Case Hill. 29 Eliz. In the Common-Pleas IN an Action upon the Case the Plaintiff declared Owen Rep. 42. 1 Cro. 118. 1 Roll. 30. 4 Len. 13. That whereas the said Plaintiff was seised in his Demesn as of Fee of certain Land and shews the certainty of them the Defendant Sone in consideration that the said Plaintiff permitteret the said Sone occupare terras praedictas ab eodem die scil 20 Julii 27 Eliz. usque ad secundum diem Novembris quod esset in Anno Dom. 1589. super se assumpsit quod ipse idem W. Sone ad festum omnium Sanctorum proxime sequen 10 l. 2 s. 6 d. ac abinde annuatim durante termino dicto 20 l. 5 s. at festa Annunciationis beatae Mariae ac omnium Sanctor per aequales portiones solvend eidem Hunt the Plaintiff bene fideliter contentare vellet Ac licet praedict W. Hunt permisit praefat Sone occupare terras praedict à dict 20 die Julii 27 Eliz. usque ad secundum diem Novemb. 28 Eliz. Licetque post dictum 20 diem Julii 27 Eliz. ante praedict diem 2 Novemb. Anno 20 Eliz. dictum festum omnium Sanctor Anno 27 Eliz. supradict ac festum Annunciationis beatae Mariae Virginis ac festum omnium Sanctor 28 Eliz. praeterierunt praed tamen W. Sone dict 10 l. 2 s. 6 d. ad praed festum omnium Sanctor proxime sequent post permissionem assumptionem praed ac aliud 10 l. 2 s. 6 d. ad festum Annunciationis 28 Eliz. ac alia 10 l. 2 s. 6 d. ad fest omnium Sanct. Anno 28 Eliz. supradict nondum solvit c. The Defendant pleaded That the Plaintiff entred into parcel of the premisses ultimo Octob. 28 Eliz. eadem occupare eidem W. Sone non permisit upon which they were at issue and it was found for the Plaintiff And now it was moved in Arrest of Iudgment That the Plaintiff had not cause of Action before the whole Term be expired for it is an intire Assumpsit and cannot be by Action severed and therefore it was said That if I promise to pay you 20 l. viz. at such a Feast 5 l. and at such a Feast other 5 l. c. there before the last day of payment no Action lieth for the sum of 20 l. is one and entire but if I promise to another at Easter next 10 l. and at Midsummer as much c. here are several Assumpsits and upon default of payment of the first sum Actio oritur without respecting the last payment But at the last the Court was agreed That Iudgment notwithstanding the said Exception should be given for the Plaintiff and said That the Declaration was well enough as well in respect of the Exception aforesaid as also that this word licet is effectual enough for the setting down the permission CXXXVIII Roper 's Case Trin. 30 Eliz. In the King's-Bench Stamf. 166 167. Terms of the Law 75 76. Inst 131. ROper was robbed by Smith and within a Week after the Robbery he preferred an Indictment against him and within a Month after the Robbery he sued an Appeal against Smith and prosecuted the same untill he was out-lawed and thereupon Coke moved to have restitution of the Goods taken And B. of the Crown-Office said That the Fresh-suit was not enquired for upon an Appeal one shall not have restitution without Fresh-suit Coke The Books are That if the Defendant in an Appeal of Robbery be attainted by Verdict the Fresh-suit shall be enquired of but here he was attainted by Outlawry and not by Verdict and so the Fresh-suit cannot be enquired and here the Indictment within a Week and the Appeal within a Month after the Robbery is a Fresh-suit Wray Fresh-suit in our Law is to persue the Felon from Town to Town but the suing of an Appeal is not any Fresh-suit See 21 E. 4. 16. Restitution granted upon an Outlawry in an Appeal of Robbery without Fresh-suit enquired 1 H. 4. 5. if he confess the Felony See 2 R. 3. 13. CXXXIX Piggot and Russel 's Case Trin. 30 Eliz. In the Common-Pleas 1 Cro. 124. 1 Co. English his Case NOTE it was agreed per Curiam in this Case That if Tenant for life being of full age and he in the Remainder within age levy a Fine and afterwards the Infant reverseth the Fine as to him for the Inheritance he shall not enter for forfeiture because he joined in the Fine and so assented to it CXL Sir John Savage 's Case Trin. 29 Eliz. In the King's-Bench IN Trespass the Defendant justified because Sir John Savage was seised of the Manor of D. within which Manor the custome is That if any man taketh to Wife any customary Tenant of the said Manor and hath issue and shall overlive his Wife he shall be Tenant by the Curtesie and pleaded farther That he took to Wife one Ann to whom during the said coverture Postea 208. a customary Tenement of the said Manor did descend and that he had issue by the said Ann and that she is dead and so c. and it was adjudged That the Husband by this custome upon this matter should not be Tenant by the Curtesie for Ann was not a customary Tenant of the said Manor at the time of the marriage CXLI Stainsby and Hales 's Case Trin. 29 Eliz. In the King's-Bench IN a second Deliverance by Stainsby against Hales Challenge was taken for the Hundred and it was shewed and confessed That the Hundred of Feversham in Kent was and is within the Lathe of Seray and that there is not nor ever had been any Court holden in the said Hundred of Feversham but that all the Inhabitants within the said Hundred have used to go to the Court of the Lathe of Seray and it was holden by all the Iustices that in this Case Challenge ought to be taken for the Lathe and not for the Hundred for no Court had been holden in the Hundred See 2 H. 4. 6. 11 H. 4. 2. A Iuror was challenged for the Hundred and the Triors said That the party challenged was not of the said Hundred where c. but they farther said that there were six Hundreds all which came to one Court and the same was holden a good answer to the challenge and the party challenged was sworn CXLII Sands and Hempston 's Case Trin. 27 Eliz. Rot. 1201. In the King's-Bench IN a Replevin The Case was That Henry Earl of Westmerland Dy. 270. 2 Brownl 26. 3 Len. 59. 1 Leon. 4. 16. Postea 15. 2 Roll. 157. was seised of the Manor of Kennington in Fee and granted a Rent-charge to William Cordel afterwards Master of the Rolls for life and afterwards made a Feoffment thereof to Sir John Clifton who granted a Copihold to Sands for life according to the custome of the said Manor the same being an ancient Copihold Sir John died seised the Rent is behind Sir William Cordel died
And the Statute doth not respect the way of carriage but that altogether and to all intents it be the distance of four miles betwixt the place where c. and the said Town of Rye and here it is not material which is the common and usual way to Rye for carriages but the nearness of the place where c. Quomodocunque is the matter and therefore the Defendant ought to have pleaded That the place where c. is every way distant four miles from Rye and as to that that he hath answered four miles with 4000 paces the same is well enough for although he doth not answer the direct the words yet if he doth answer in effect it is well enough for 1000 paces and a mile are all one in substance Wray The distance shall be accounted the nearest way not as a Bird may fly CLII. Wellock and Hammon 's Case Trin. 31 Eliz. In the King's-Bench 3 Co. 20. 1 Cro. 204 205. THis Case is reported by Sir Edw. Coke in his 3 Reports See the principal case there Here is a Limitation and not a Condition for if it should be a Condition it should descend to the Heir at the Common Law which is the Devisee and so shall be extinct in his person and then the restraint is of no effect for there shall be then no means to compell the Heir who hath the Land to pay the Legacies nor have the Legatories any remedy to compell the son to pay the Legacies which shall not have effect if it be not taken by way of Limitation and to that intent Scholasticas Case was cited 15 Eliz. Dyer 317. And this word paying in a Devise shall never be construed to be a Condition And it was holden by the Iustices That where a man deviseth lands to his younger son paying such a sum unto such the Devisee hath a Fee-simple and if he do not pay the monies accordingly his Estate shall determine by the same Limitation and shall go to the heir without any other limitation and the quantity of the monies be it great or small is not material And they were of opinion also that here the monies were not payable but upon request Coke 2 Cro. 56 57. 1 Roll 439. If a man be bound to perform Covenants and one Covenant is to pay Legacies there he needs not pay them without a demand But where one is expresly bounden to pay such a Legacy there he must pay it at his peril And he said That the Case 28 H. 8. Dyer 33. is not Law for there it is holden by Fitz-herbert and Baldwin That where land was devised unto the Prior and Convent of S. Barthol Ita quod reddant annuatim Decano Capitulo Sancti Pauli 5 l. and they fail of payment of it that their Estate shall cease and the Dean and Chapter c. shall have c. such conditions void And that upon one Fee-simple another Fee-simple cannot be limited For by Coke Common experience is otherwise That upon a Fee-simple determinable another Fee-simple may be limited which Gawdy Iustice granted And as to the principal Case Iudgment was given with the limitation CLIII Parker and Harrold 's Case Pasc 28 Eliz. Rot. 485. In the King 's Bench. 3 Len. 142. IN Debt upon an Obligation The Condition was That whereas the Plaintiff and Defendant be now joyntly seised of the Office of the Register of the Court of Admiralty If the Defendant shall permit the Plaintiff to use the said Office and take the profits of it wholly to his own use during his life without lett or interruption done by him that then c. The Defendant Pleaded That the custome of the Realm of England is That the Lord Admiral for the time being might grant the said Office and that such grant should be good but for the life of the Grantor antea 103. and shewed farther That the Lord Clinton Lord Admiral granted the said Office unto the Plaintiff and the Defendant and died and that the Lord Howard was appointed Lord Admiral and that he 27 Eliz. granted the said Office to one Wade who ousted and interrupted him before which time the Defendant did suffer the Plaintiff to enjoy the said Office and to take the profits of it upon which the Plaintiff did demur in Law Coke argued for the Plaintiff That the Plea of the Defendant is not good for he hath not entitled the Lord Admiral to grant the Office for he hath said That the custome of the Realm of England is and that cannot be good for it cannot be tried for a Visne cannot be from the Realm of England Also if it lie through all the Realm then the same is Common Law and not custome which see Br. Custome 59. and see 4 5 Ph. Ma. 152 153. an express Case of the same Office and there he prescribed Per consuetudinem in Curia c. and also that such grant is good but during the life of the Admiral who granteth it Also he doth not answer to any time after the grant of the Admiral Howard for if we were lawfully put out by Wade yet the Defendant against his Bond shall not put us out or interrupt us As 5 E. 4. 115. In a Quare Impedit against an Abbat and the Incumbent who make default upon the distress upon which a Writ was awarded to the Bishop for the Plaintiff upon which the Bishop retorned That the Incumbent had resigned of which he hath given notice to the Prior and lapse incurred and the Bishop collates the former Incumbent and then this Writ came to him Now although the Incumbent be in by Title yet he is bound by the Iudgment So here although the Defendant hath another Title and the former Title of the Plaintiff be determined yet against his own Bond and Deed he shall not put out the Plaintiff c. And the Court was clear of opinion That Iudgment should be given for the Plaintiff but afterwards the Cause was compounded by order of the Lord Chancellour CLIII Bedel's Case Trin. 32 Eliz. In the King's-Bench THE Case was 3 Len. 159. That A. leased to B. certain Lands for 40 l. per ann and a stranger covenanted with A. that B. should pay unto him the 40 l. for the Farm and occupation of the said Lands A. brought an Action of Covenant the Defendant pleaded That before the day of payment the Plaintiff ousted B. of his Farm It was moved by Godfrey that it was no Plea because this is a collateral sum and not for Rent issuing out of Land Also the Defendant is a stranger to the Contract for the Farm But the opinion of the Court was to the contrary for the Defendant hath covenanted that the Lessee shall pay for the said Farm and occupation 40 l. so it is as a conditional Covenant and here is Quid pro Quo and here the consideration upon which the Covenant is conceived scil the Farm and the occupation
extend ad onerand personam of the Grantor for here the Proviso is rather an Exception than a Condition A Lease for years without impeachment of Wast Proviso that he shall not do voluntary Wast the same is a Qualification of the liberty for doing Wast Grant of a Manor Proviso that it shall not extend to wood growing upon the Manor the same is an Exception not a Condition See the Bishop of York's Case 5 Eliz. Dyer 222. The said Bishop made a Lease for certain years of certain Lands Proviso quod tempore vacationis the Rent shall be paid to the Chapter It was holden that the Proviso was not a Condition And here in this Case the Will of George Scott was That the Recoverors should make to the said Hugh a favourable Lease which cannot be if it be a conditional Lease Another point was because the Rent is not well demanded for he hath demanded the whole Rent of the year whereas but half a years Rent was onely due Coke contrary where the Proviso is parcel of one sentence which contains a Covenant or abridgeth the Covenant there it shall not amount to a Condition but to an Exception as a Grant of a Rent-charge Proviso that he shall not charge the person abridgeth the force of the Grant so a Lease without impeachment of Wast Proviso that the Feoffee shall not do voluntary Wast the same abridgeth the liberty But in our Case this Proviso makes a Condition and not a Qualification of the sentence or of any Covenant contained in the sentence nor doth it participate altogether with the sentence but stands substantively for it was a full sentence before A Feoffment in Fee with Warranty Proviso that when he is impleaded he shall not vouch J. S. the same is a good Condition for J. S. is a stranger contrary that he shall not vouch the Feoffor And a Proviso never makes a Covenant and therefore it shall be either a Condition or void And he said That by the devise Hugh Scott had a Lease without any Lease to be made by the Recoverors As unto the demand of the whole Rent where but half a years Rent was due the same is good enough And so was it adjudged in a Case betwixt Andrew's and the Lord Cromwell for he is at his peril to pay the one moyety and in as much as he denieth the whole he denieth every part It was adjorned CLXXI. Hawkins 's Case Mich. 29 Eliz. In the King's-Bench ONE Hawkins was seised of three Messuages in Bury in his Demesit as of Fee and had issue Robert Christian and Joan Postea 193. 1 Cro. 53. 3 Len. 180. and devised all his said Messuages to his wife for life the remainder of one of the said Messuages to his son Robert and his heirs the remainder of another of his said Messuages to his daughter Christian and to her heirs and the remainder of the third Messuage to Joan and her heirs And farther by his Will devised That if any of his said issues die without issue of his body that then the other surviving shall have totam illam partem c. between them equally to be divided The Devisor dieth the wife of the Devisor dieth Joan dieth having issue Robert dieth without issue Christian entreth into all the house of Robert and dieth and her husband holds in as Tenant by the Curtesie Coke The surviving child shall have the whole and the issue of Joan shall have nothing and he said That by this Devise they have an Estate in tail for the Fee doth not vest in any of them for it is written Who shall survive But when one overlives he shall have in Fee for these words totam illam partem go to the whole Estate as well as to the whole Land. I devise my Land wholy to one he hath Fee thereby And he said that the three Devisees have Fee-tail and Fee expectant each severally as to the Messuage to him limited Golding contrary Each hath an Estate tail in the house devised to him and but an Estate for life expectant upon the death of the other without issue for there are no words by which it may appear what Estate he shall have by the survivorship I grant the Case which Perkins denies but Littleton affirms scil A Devise to one of lands in perpetuum for there the intent appeareth But where there are not words of Inheritance nor words amounting to so much then it shall be but an Estate for life And as to the words totam partem illam the same is all one as if he had said partem illam without the word totam And also he said That where one onely survives no farther the Estate vests for there ought to be two to take by the survivor for the words are Equally to be divided betwixt them And then if it cannot accrue by survivor then it shall descend and if it had accrued to two by the survivor they shall be thereof Tenants in common not Ioynt-tenants by reason of these words Equally to be divided Clench Iustice The words Totam illam partem go to the house and not to the Estate in it Shute Iustice accordingly and he said If both daughters had survived they should have Fee in the house of Robert but not by the Will but by descent in coparcenary Also when two are dead the son and one daughter then it cannot be divided therefore the Will as to that is void and then the common Law shall take place and put the house to the issue of one daughter and of the other daughter surviving Gawdy Iustice Here is but an Estate for life in the survivor It hath been objected That then having but an Estate for life the same Estate is drowned by the descent of the Fee-simple so as now the Estate limited by the Will is void To which it may be answered That although now upon the matter it be void yet Ab initio it was not so for it became void by matter of later time scil by the descent of the Fee-simple for if one of the daughters had died without issue before the death of Robert so as the house of such daughter should have come to the said Robert and the other sister there is no coparcenary for the son hath all the Fee and the moyety of the same is executed and the other moyety expectant and the sister hath a moyety for life and then the Devise not void Also here are not two survivors so nothing is to be divided and therefore the Law shall say that the house of Robert is descended scil the Fee of it to the daughter of Christian and Joan and so Iudgment was given against the husband who claims to be Tenant by the Curtesie of the whole Messuage CLXXII Wye and Throgmorton 's Case Pasc 27 Eliz. In the Common Pleas. IN Debt upon a Bond by Wye against Throgmorton The Condition of the Obligation was to perform Covenants in a pair of Indentures And the
Covenant wherein the breach was assigned was That if R. W. Brother of the Plaintiff should say Make assurance of such a Manor to the Defendant as the Council learned of the said Defendant should advise Then if the Defendant pays unto the Plaintiff 50 l. the Obligation to be void The Defendant by advice of Council demanded a Release with Warranty c. And by Periam and Windham The same is not any Assurance but a means to recover in value Anderson contrary That it was a Collateral Warranty c. CLXXIII Cropp and Hambleden 's Case Hill. 28 Eliz. In the King 's Bench. 1 Cro. 48. IN Trespass by Cropp against Erasmus Hambleden upon the special Verdict the Case was That one Martin Hastings was seised of the lands where c. in the right of his wife for the life of the wife and that they both did Lease unto the Defendant for years rendring Rent payable at the Feast of S. Michael and the Feast of the Annunciation c. with clause of re-entry if the Rent be behind by a Month after any of the said Feasts and after the feast of S. Michael 26 Eliz. and before the Month expired the Lessee the now Defendant sent his servant unto the house of the Lessor for to pay to him the Rent then due the servant went unto the house of the Lessor and there asked for him to whom it was answered by one Mary Briggs daughter of the wife of the Lessor who there dwelt in the said house with her mother that the Lessor was not at home for which the said servant delivered the said Rent to the said Mary requiring her to deliver the same over to the Lessor upon his retorn to the house in the name of his servant Mary reserved the said Rent and upon the retorn of the Lessor at his house told him all the matter aforesaid and that the servant of the Lessor the Defendant had required her to tender the said Rent to the Lessor in the name of the Defendant and thereupon offered and tendered to him the said Rent and the Lessor refused it And the Iury found That the third half year before the tender mentioned before the Lessor commanded the said Mary to receive the Rent then due who did accordingly and that the next half year then following the said Mary did receive the said Rent without commandment of the Lessor but after the Lessor agreed unto it and that the immediate half year before this tender in question the Defendant paid the Rent then due to the Lessor himself who received it And it was the opinion of Wray chief Iustice that this tender was good and it is not like unto the case of an Obligation for there the Obligee cannot have an Action of Debt before the last day but here the Lessor might have distrained or have had an Action of Debt before the Month expired and so the Lessor is bound by this tender and by Gawdy Iustice This tender cannot be said a tender by a stranger for here Mary came in privity of the servant of the Lessee and as it is found by Verdict Mary tendered it to the Lessor as being requested by the servant of the Lessee And afterwards upon consideration had betwixt the Iustices themselves the Iustices viz. Clench Gawdy and Wray for Shute was then sick it was clearly resolved against the Plaintiff and that the said tender as it is found in the Verdict is a good and sufficient tender and the Lord Wray delivered the reason as before and farther said That if the said Rent had been reserved payable at the feasts aforesaid or within a Month after each of them there the tender as above had not been good nor should bind the Lessor for in such case the Lessor could not distrain or have an Action of Debt for the said Rent before the Month expired And this is a case of extremity and deserves no favour and here is no mischief to the Lessor for he might have had his Rent in due time if he would and his captious refusal shall not avail him And Iudgment was given accordingly CLXXIV Bostock and Covert 's Case Trin. 33 Eliz. In the Common-Pleas BOstock and his Wife brought a Writ of Dower against Covert son and heir of her former Husband who pleaded That the Husband of the Demandant was seised of Lands amounting to the number of 300 Acres and held the same by Knights-service and died seised after whose death by virtue of the Statute of 34 and 32 H. 8. he entred into 100 Acres of the said Lands as the third part of the said Lands descended and held the same in severalty being the third part of the clear yearly value of the whole discharged of a Dower and that the Wife ought to have all her Dower out of the two parts devised And Anderson said That the Plea was not good for the heir who will take advantage of the Statute in that point ought to enter generally as Tenant in common with the Devisee and then in a Writ of Dower it is a good Plea so if after his entry as Tenant in common Partition be made betwixt him and the Devisee such a Plea is good but here he hath entred severally into a third part distinct from the residue and so hath ousted the Devisee of a third part severally for which cause he cannot have advantage of this Plea To which the rest of the Iustices Non contradixerunt CLXXV Sir John Southwel 's Case Pasch 37 Eliz. In the Exchequer 3 Len. 147. SIR John Southwel of the County of Lancaster 7 Julii 19 Eliz. made a Conveyance of his Lands to divers Feoffees and their Heirs upon condition that they should find him and his Wife and so many persons in his house c. prefer his Daughters in marriage pay his debts c. And if there fell out at the years end upon accompt made by the Feoffees any surplusage that then at the end of every such year they should answer such surplusage as should then remain in their hands unexpended of the Rents and profits of his said Lands with clause of revocation c. Afterwards the said Conveyance being in force came the Statute of 23 Eliz. concerning Recusants upon which Statute the said Southwel is now endicted and afterwards upon a Commission issuing out of the Exchequer to the Sheriff of Lancaster to enquire of the Lands of the said Southwel although against the said Conveyance it was given in Evidence That after the said Conveyance the said Sir John Southwel had granted Trees from off the said Lands and had received Fines and Incomes for Leases c. yet the Iurors charged to enquire would not find that the said Sir John Southwel had any Lands c. And by special command from the Queen it was referred out of the Exchequer to all the Iudges of England If the Lands of the said Sir John Southwel conveyed as aforesaid were subject to the said
The Queen gave and granted the Reversion in Fee to Sir Thomas Henage c. and after it was found by Office that the Rent was arrear ut supra Sir Thomas Henage entred and leased for years to Sir Moil Finch who being ejected brought a Quo minus in the nature of an Ejectione Firmae c. It was argued by Coke That this Lease upon the matter aforesaid is avoidable by the Patentee and that without Office for the conclusion of the Proviso is not that the Queen shall re-enter but that the Lease shall cease and be void and the Queen is not driven to demand her Rent as in such case a Subject is tied And he compared it to the Case of a common person If a common person leaseth for years upon condition that if the Lessee doth not build upon the Land demised a House within a year after that the Lease shall be void and afterwards grants the Reversion to a stranger the Grantee shall have advantage of this Condition be it broken before or after the Grant for the Lease in such case is void not onely voidable and the reason is because the Condition is collateral which see 11 H. 7. 17. A Lease for years is made upon Condition that if the Lessee doth not go to Rome before such a day that the Lease shall be void the Lessor grants the Reversion over the Lessee attorns and doth not go to Rome within the time appointed the Grantee may re-enter contrary if the conclusion of the Condition had been by way of re-entry for then it should run in privity by the Common Law But where a Lease with such Condition was made for life with this conclusion of the Condition that the Lease shall be void the Grantee shall not take advantage of that by the Common Law for there the Estate is not void untill re-entry for there is a Freehold which ought to be avoided by Entry But in our Case the Condition is upon the matter collateral for no demand is requisite to take advantage of the Condition And he said it is a general Rule where in the Case of a common person an Estate may be devested without Entry there in the Case of the Queen there needs not any Office but here in our Case if it had been a Case of a common person the Estate should be devested without Entry therefore in the Case of the Queen without Office See Stamford for the Major Proposition 55. but it doth not vest to have Trespass before Entry and he vouched the Case of Browning and Beston Plow 136. where such Lease after such Condition broken is merely void and dissolved And he said That it was the Opinion of the Iustices of the Common Pleas now late That by a Release to such Lessee after the condition broken nihil operatur for after the Condition broken he is but Tenant at sufferance and a Lease for years being but a Cattel may begin without ceremony and end without ceremony 2 H. 7. 8. If the King make a Lease for years with clause of Re-entry for not payment of the Rent although the Rent be behind yet the King shall not re-enter before Office found and there ought to be a Seisure for the Lease is not void by the non-payment of the Rent but onely voidable but if the Lease be void for not payment as in our case it is to what purpose shall an Office be for by the mere contract the Lease ceaseth without re-entry or without Office But admit that the Lease shall not cease without Office and before Office the Queen grants the Reversion over yet an Office found after the Grant shall avoid the Lease as well as if it had been found before the Grant. A Lease is made upon condition that if the Lessor build a House upon the Land leased and pay to the Lessee 20 l. that then the Lease shall be void the Lessor builds the House and afterwards grants the Reversion the Grantee pays the 20 l. now the Lease is void although the Condition be partly performed in the time of the Lessor and partly in the time of the Grantee So here although the Grant of the Queen be Mesn between the non-payment of the Rent and the Office for the Queen is not entitled by the Office to the Land but by the Condition broken and the Office is onely to inform the Queen of her Title and when the Office is once found it shall relate unto the time of the Condition broken and shall be of such force as if then it had been found H. 3. H. 7. f. 3. Cro. 221. and here in our case an Office was necessary for to entitle the Queen to the mean profits due betwixt the Rent arrear and the Grant of the Queen with which the Queen by her Grant hath not dispensed and without Office he could not have them for the arrearages of the Rent do not pass to the Patentee no more than if the Queen be seised of an Advowson and the Church become void if the Queen Grant the Advowson unto another the avoidance shall not pass The King seised of a Rent which is arrear grants the said Rent the arrearages shall not pass So here of the mean profits for they are flowers faln from the stalk c. Godfrey contrary and he said That the Lease is in being not impeached by the Condition or the Office and he said That notwithstanding that the words of the Lease are That the Lease shall be void yet before that an Office be found the Lease shall not be avoided In all cases where the Queen is entitled to any thing or to defeat the Estate of another an Office is necessary and that ground is taken in the case of the Lord Berkley Plow Com. 229. by Brown therefore here it ought to be found by Office See also the case of the Bishop of Chichester Fitz. Abridg. Forfeiture 18. 46 E. 3. The Bishop leased for life certain Lands given by the Progenitors of the King as parcel of the Barony of the Bishoprick rendring 30 l Rent and afterwards by assent of the Dean and Chapter released a great part of the said Rent the Lease and the Rent ought to be found by Office. So an Alienation in Mortmain ought to be found by Office because the interest of another is to be defeated So where the King's Tenant ceaseth c. the Villein of the King purchaseth Lands or but a Lease for years So where the King is but to have annum diem vastum Waste committed by the Committee of the King Lessee of the King for years makes a Feoffment in Fee in all these cases the King without Office shall not be entitled The same Law is in case of a Condition broken which see 2 H. 7. 8. Plow 213. Frowick in his Reading puts this case A Subject leaseth for years upon condition which is afterwards broken and afterwards the Lessor becomes King here needs no Office for at the time
of the breach of the Condition the Lessor was not King. Forbisher and Bunny's Case The Case betwixt Sir Martin Forbisher and one Bunny was that the Queen made a Lease of Dutchy Land upon Condition which was broken It was holden that here there needs not any Office for the Queen had those Lands severed from the Crown by Parliament and they passed by the Dutchy Seal by Livery and attornment of the Tenants The Queen leaseth for years Proviso that the Lessee shall not alien such alienation against such a Condition ought to be found by Office and therefore at this day where a Forfeiture is given to the King c. by Statute the words are That the King shall be seised without Office And as to the Relation of an Office he said That an Office may have a Relation as to mean profits but not as to vest the interest from the time of the Title accrued And although that in the Grant of the Queen to Sir Thomas Henage there be these words Non obstante the not finding any Office yet in this case an Office is necessary for the Queen cannot dispense with the Law so to alter or change the Law as to make Lands in Borough-English descendable at the common Law So if the King make a Lease for years with clause of re-entry and afterwards grants the Reversion over to a Subject and farther grants that if the Rent be behind that the Lessor may re-enter without demand yet the Grantee ought to demand the Rent And as our case is here there needs not any Office to entitle the Queen to the Mean profits for although that the Rent was not paid at the day yet it was paid after and all Rent due afterwards and Acquittances given for the same which matter we have specially pleaded to the intent aforesaid upon which the other side have demurred and thereby have confessed it c. But this Office doth not give any interest to the Queen in the thing leased for she hath granted them over before by which she hath disabled her self to take advantage of the Condition aforesaid for she hath surceased her time 8 H. 5. Traverse 47. Tenant for life forfeits his Estate and before the King seiseth The Tenant for life dieth he in the Reversion may enter and the King shall not seise for the King hath surceased his time And if the Queen should have advantage of this Condition she should avoid her own Grant which should be a great inconvenience The Queen leaseth for years Proviso that the Lessee shall not do Waste the Queen grants over the Reversion after Waste done Office is found the Queen gains nothing by it It was agreed in the Case betwixt Knight and Beech 28 Eliz. That the Grant of the Queen Mesn between the award of the Commission and the Retorn of it was good for the Title of the Queen appeareth of Record although that the Commission was not retorned before the Grant made And if an Office should relate unto the time of the Condition broken it should be in vain to argue that point for in the said case it was holden a Record when the Iurors had put their Seals to it before that it be enrolled The acceptance of the Rent and the Acquittances thereof are pleaded 1. To prove that there is no cause to find an Office in this case for the Queen is answered the Mean profits 2. To prove that the Queen hath waved and refused to take the benefit of the Condition but not to conclude the Queen and then you cannot force her to take the benefit of the Condition As the King Lord and Tenant the Tenant dieth his Heir within age the King accepteth of the Services of the Heir and afterwards grants over the Seignory after Office is found the King shall not have the Wardship c. At another day it was argued by Popham Attorny General for the Plaintiff and he said That upon not payment of the Rent the Lease is ipso facto void without any Office found thereof and that by reason of these words shall not be void for he said it is not a Condition but rather a limitation As if the King make a Lease to three for eighty years si tam diu vixerint one of them dieth the Lease is determined without Office So a Lease made vy the Queen for years so long as the Lessee shall pay the Rent reserved or so long as the Lessee shall there inhabit In these cases upon a Lease made by a common person the Lessor before Entry might grant over and the Grantee shall have advantage of it for it is a limitation and by the limitation the Lease is determined before the Grant contrary if it had been by words of re-entry A Lease for sixty years Proviso that if the Lessee shall die within the term that the Lease shall cease the Lessor grants the Reversion over the Grantee shall take advantage thereof by the common Law See the Case 11 H. 7. 17. it is a limitation and not a Condition And he said in this case an Office is necessary not to avoid the Lease for that was void before nor to punish the Lessee as a Trespassor or to fine him for the continuance of his wrongfull possession but to make him responsable as an Accountant In the Lease of a common person where the clause is That the Lease shall cease If after the Rent behind the Lessee continueth his possession yet the Lessor shall not punish the Lessee as a Trespassor before his Entry for the Lessee by his continuance is but Tenant at sufferance for his first Entry was lawfull And he agreed the Books 14 H. 8. and 2 H. 7. That such advantages that a common person cannot have without Entry the Queen cannot have without Office But a common person before Entry cannot punish another by way of Trespass therefore neither the Queen without Office shall punish one as an Intruder And as to the Case now lately adjudged betwixt Knight and Beech the same doth not extend to our Case Knight and Beech's case for there an Office was requisite before the Grant of the Queen because the per-close of the Condition was That the Prior should re-enter and it is very clear That Chattels vest in the Queen without Office. And in this Case an Office is necessary for two purposes 1. To make the Grant good 2. To make the Occupier accountable for the Mean profits and to give recompence which the Queen is not enabled unto without Office. And here the Patentee shall have advantage of the cesser of this Lease For 1. He hath the Inheritance lawfully and 2. The Lease is determined If there were no Non obstante in the Letters Patents the said Lease ought to have been recited if it had not been determined and if it be determined as this case is it ought to be recited if there were not a Non obstante for non constat to the Queen if it
in fact so as he might have an Assise or an Action of Trespass Antea 210 1 Cro. 920. Ow. 96. So the Law is now taken A. deviseth his Lands to B. and dieth and a stranger entreth and dieth seised before any Entry by the Devisee now is the Devisee without remedy And here in our Case the Intruder hath not gained any possession in the Lands by his intrusion no more than if the King gives Lands to one in Fee and before the Patentee enters a stranger enters now cannot the Patentee grant it over if he doth not reduce the Estate by Entry See Dyer 9 and 10 Eliz. 266. P. 20 Eliz. in Curia Ward Garbery's Case acc The Queen seised of the Manor of Beverley a stranger erected a Shop in a vacant plat of the Manor and afterwards took the profits of it without paying any Rent for the same to the Queen and afterwards the Queen granted the Manor to the Earl of Leicester and he never entred into the said Shop nor took any Rent for the same and afterwards the Occupier of the Shop died in possession and his Son and Heir entred and the better opinion was that the same was not a descent against the Patentee because at the first it was not a disseisin against the Queen Another Question was moved as to a path-way then in question And the Iury found that one side of the path-way was the Land of the Parson of the Church and the other side the Church-yard and prayed the opinion of the Court therein to whom the interest of the path-way did belong to which it was said by the Court That that ought to be found by the Verdict For although that both be the Freehold of the Parson yet the soil of the path-way might be conveyed by an express Grant unto another But the Court seemed to incline that the soil of the path-way did belong to him who had the Lands on both sides and that is the Case as well of a high-way as of a path-way And it is also good Evidence to prove such matter Who hath used to cut down the Trees or to cleanse the way CLXXXIII Wiseman 's Case 24 Eliz. In the Court of Wards 6 Co. Weeden Baldwin's Case IN the Court of Wards before the Lord Treasurer Master of the Wards Wray chief Iustice Anderson and Periam Assistants to him the Case was That Wiseman was seised of certain Lands holden by Knight's-service in Capite had issue by a former Wife who died and made a Feoffment in Fee to the use of her who should be his Wife for life and afterwards to the use of himself and of his issue of the body of such Wife to be begotten the remainder over Wiseman took a Wife and had issue and died If now living the Wife the issue shall be in Ward was the question It was argued by Coke That he shall not be in Ward And first it was agreed of both sides and also by the Iustices That it was a remainder and not a reversion and that at the Common Law the descent of a remainder during the Estate for life doth not entitle the King unto Wardship and there we are to see if upon the Statute of 32 H. 8. the last branch of it where two or more persons hold any Lands of the King by Knights-service jointly to them and the heirs of one of them and he that hath the Inheritance thereof dieth his heir being within age in every such Case the King shall have the Ward and marriage of the body of such heir so being within age the life of the Freeholder or Freeholders of such Lands notwithstanding See 33 H. 6. 14. That the father to prevent Wardship may alien and take to him and his son and the heirs of the father which mischief was intended to be remedied by the said Statute But these words shall not in construction thereof extend farther than the words especially because they cross the Common Law and go to charge the Inheritance of others and therefore they shall be taken strictly and not by equity as the Statute of West 2. cap. 40. Cum quis alienat jus uxoris suae concordat est Quod de cetero secta mulieris aut ejus haeredis non differatur propter minorem aetatem haeredis qui warrantizare debuit that Statute is taken strictly for if the Vouchee voucheth over the second Vouchee shall have his age Quod vide 18 E. 4. 16. Also the Stat. of West 1. enacts That where the Disseisor dieth seised the Disseisee shall have his Writ upon the Disseisin against the heir of the Disseisor of what age soever he be So the heirs of the Disseisee yet it is holden 9 E. 3. If the Disseisor leaseth for life and dieth and the Lessee be impleaded and makes default after default upon which the heir of the Disseisor prayeth to be received being within age he shall have his age notwithstanding the said Statute which shall be taken strictly because it controlls the Common Law and chargeth the Inheritance of the Subject So upon the Statute of West 1. cap. 39. That none shall vouch out of the line upon that Statute although the Tenant to the Action against whom the Praecipe is brought is bound by the Statute yet Tenant by receit is at large and he may vouch at the Common Law 2 H. 7. 2. 16 H. 7. 1. for these Statutes go in abridgment of the Common Law and therefore shall be taken strictly Now according to this Statute it is of the same nature as the other before remembred and therefore shall not be extended in construction beyond the Letter As Sir Rowland Hill's Case Grandfather father and son the grandfather seised of Land ut supra makes a Feoffment in Fee to the use of himself for life and afterwards to the use of the son in Fee The grandfather dieth the father dieth the son shall not be in Ward Causa qua supra For this Statute shall not be construed by equity and by it the words thereof Preferment of children shall not extend unto the childrens children but to the children onely of the King's Tenant who makes the Conveyance And the words in this Statute or otherwise shall not be intended to other persons than are remembred in the Statute There was a Case late where the Statute was construed in such a manner Quod vide 18 Eliz. 345. Thornton's Case A Lady seised of Lands in chief made Conveyance of her Lands for the advancement of her bastard-daughter the same Conveyance is not within the Statute See also the Lord Powes's Case 14 Eliz. Dyer 313. So in the Case of Sir Hugh Calverley the Law was taken That where the Husband dieth seised in the right of his Wife and they levy a Fine unto the use of the Husband and Wife for the advancement of the Husband such Conveyance and disposition is not within the Statute of 32 H. 8. Popham contrary And as to
being void he presents he may repeal his presentment and he vouched divers presidents of Grants of the King of such lands to hold of him as of his Dutchy and sometimes of others And the King by his Dutchy seal may give lands in Mortmain and the King under his Dutchy-seal hath made divers Corporations within his Dutchy And although this Rent be a new thing never parcel of the Dutchy yet because it is issuing out of the Dutchy lands and reserved thereout shall be of the same nature and accounted parcel of the possessions of the Dutchy If before the Statute of West 3. one seised of lands on the part of his mother made a Feoffment in Fee Tenend by such services and died the Seignory should go to the heir on the part of his mother and should be descendable as the land it self in lieu of which it came And if Tenant in tail now after the Statute of 32 H. 8. makes a Lease for years according to the Statute rendring Rent to him and his heirs it shall be expounded such heirs which are inheritable to the land according to the entail Manwood chief Baron Demanded of Plowden this Question The King makes a Feoffment in Fee of lands of his Dutchy Is the same a matter of Record who answered yes Manwood Truely no for then there needed not any livery Egerton Solicitor argued to the contrary and he argued much upon the Statute of 1 H. 4. and 1 H. 7. of the separation of the Dutchy of Lancaster from the Crown which see in the Comment 215. in the Case of the Dutchy of Lancaster by which Acts the possessions of the Dutchy were devested out of the body Politick of the King and vested in his body natural and are as their corporal holding in the King as they were in the Duke of Lancaster being a Subject who if he had made a Feoffment the Feoffee should not hold of him but of the King Ergo so shall it be in the case where the King himself makes a Feoffment and he cited a Case put in the end of the Dutchy Case 4 Eliz. 223. The Queen made a Feoffment of lands of the Dutchy out of the County Palatine to hold of her in Capite the Feoffee shall hold of her in Capite as of her Crown of England The case went farther the King after this Feoffment granteth the Fee-farm the Question is If the Rent reserved upon this Feoffment shall pass by such grant or not and he said That this Rent is not parcel of the Fee-farm but rather a collateral charge upon the land for in all cases where there is a Tenure expressed in fait or implyed in Law there the rent reserved after shall not be parcel of the Tenure but a Rent in gross by it self As in our case Tenend in feod firm makes a Tenure therefore the Reddend after shall not make the sum reserved parcel of it 33 E. 3. Annuity 52. before the Statute of Quia Emptores terrarum a man makes a Feoffment in Fee Tenend de Dominis Capital rendring the rent of 20 l. that Rent is a Rent in gross and not parcel of the Tenure King E. 6. granted to Cranmer Archbishop and his heirs Tenend by the fifth part of a Knight's-fee Reddend 6 l. per ann Cranmer in Feoffment in Fee to the use of himself for life the remainder to the use of his son in tail the remainder to the use of the right heirs of Cranmer made a Fee who is attainted of Treason by which the remainder to his right heirs Escheats to the King and so the Seignory is extinct but it was adjudged That the Rent was in esse and not extinct by the Escheat of the remainder for it was not parcel of the Seignory So here in our case Another matter was moved If this Rent being a new thing created de novo and not parcels of the possessions of the Dutchy 1 H. 4. nor 1 H. 7. shall be accounted in Law in the right of the Crown or of the Dutchy and if of the Crown then it cannot pass by the Dutchy-seal and the Statute of 1 H. 4. speaks of such Lands and Tenements which were to his Ancestors Dukes of Lancaster but this Rent never was in them c. and the Queen cannot enlarge the possessions of her Dutchy by her own Act and therefore if J. S. being Tenant in Fee-simple be impleaded in a Praecipe quod reddat and saith that he holdeth for life the remainder to the King in Fee in the right of his Dutchy now this remainder is vested in the King in the right of his Crown and not in the right of his Dutchy for it is onely an Estoppel So the Villein of the King in the right of his Dutchy purchaseth lands the King seiseth he shall have the lands in the right of his Crown and not in the right of the Dutchy If the King giveth Common out of his lands parcel of his Dutchy and afterwards makes a Feoffment in Fee of the lands out of which the Common is granted and afterwards the Commoner dieth without heir the King shall have the same in the right of his Crown and not in the right of the Dutchy So although the rent doth follow the nature of the lands out of which it is issuing yet it is not so to all intents and he said That by the Statute of 2 3 Phil. Ma. the King could not enlarge the possessions of the Dutchy and therefore by the said Act authority is given for to annex possession unto the Dutchy by Letters Patents And there is another clause in the said Statute That if any part of the possessions of the Dutchy have been aliened or granted unto any subject and are reverted to the Crown by Escheat attainder forfeiture purchase c. they shall be deemed and accepted parcel of the Dutchy which case proves That if the King makes a Feoffment of such lands the same is a Tenure in chief for if it were a Tenure of the Dutchy then upon Escheat it should be parcel of the Dutchy again without the help of that Statute Now this Rent being a Rent in gross and not parcel of the Seignory Reddendo Domino Regi haeredibus successoribus suis aut Domino aut Dominis feodi when the King grants the Seignory to the Lord Audley it hath been moved that it was in the Election of the Feoffee to pay the Rent to the King or to the Lord Audley but that is not so for although the Law be so betwixt Subjects yet in case of the King it is otherwise for the King shall never be over-reached by an Election and therefore he shall pay the Rent to the King. It was adjourned CLXXXV The Executors of Sir William Cordel and Clifton 's Case Hill. 18 Eliz. In the Common Pleas. 3 Len. 59. THE Case was The Earl of Westmerland seised of a Manor whereof the Demeans were usually let for three lives by Copy
for the abatement of a Writ As in a Praecipe quod reddat the Tenant acknowledgeth himself to be Villein to a stranger the Writ shall abate without any averment if Frank and of Frank Estate for the Law presumes that the Tenant would not enthral his condition Wray to the same intent But the Demandant may confess and avoid the Fine as to say That he that levyed the Fine was his disseisor upon whom he had before entred c. And if Tenant in Fee-simple be impleaded and he saith that he is Tenant for life the remainder over to A. in Fee and prayes in aid of A. the Demandant shall not take averment that the Tenant the day of the Writ purchased was seised in Fee. Note that in this fine Ioynt-tenancy was pleaded but to parcel It was holden by Wray and Southcot that the whole Writ should abate As in a Writ the misnosmer of one shall abate the whole Writ against all the Defendants and so where the Demandant enters into parcel of the land in demand if the thing in demand be one intire thing it shall abate the whole Writ In this Case the Demandant ought to have in his Writ de Forsprise of the land in demand whereof the Ioynt-tenancy by Fine is pleaded per availe and under the gift of which the Formedon is conceived and therefore in respect of the title of the Demandant it remains in right parcel of the Manor and therefore ought to be demanded accordingly with an Exception But if A. give to B. a Manor except ten acres in tail there if after upon any discontinuance the issue in tail have a Formedon in such case there needs no exception for the said ten acres were never after the gift parcel of the Manor which was given in tail for they were severed from the Manor upon the gift but if land in demand was several as twenty acres except two an exception is not good for he might demand eight acres See E. 1. F. N. B. 866. Praecipe unam bovat terrae except a Seleon and the Writ was abated for every demand ought to be certain but a Seleon is a parcel of land uncertain as to quantity in some places an acre in some more in some less Another point was That because the Tenant hath admitted and accepted this averment scil sole Tenant as the Writ doth suppose If the Court notwithstanding the admittance of the Tenant ought without exception of the party Ex officio to abate the Writ and Wray conceived that they should for it is a positive Law as if a woman brings an appeal of murther upon the death of her brother and the Defendant doth admit it without challenge or exception yet the Court shall abate the appeal 10 E. 4. 7. And see the principal Case there Non ideo puniatur Dominus and if an Action be brought against an Hostler upon the common custome of the Realm and in the Writ he is not named common Hostler and the Defendant doth accept of such Writ without exception to it yet the Court shall abate the Writ Ex officio 11 H. 4. 198. and 38 H. 6. 30. CXCVII 24 Eliz. In the King 's Bench. Antea 150. More Rep. Saffron Walden's Case THE Case was this King Henry the 8. seised of certain lands in the right of his Dutchy of Lancaster Granted them unto another Tenend in Fee-farm Reddend dicto Dom. Regi haeredibus suis aut illi cui de jure reddi debet 10 l. And if this land should be holden of the King in Capite or holden of the Dutchy was the question Egerton Solicitor general argued much upon the Statute of 1 H. 4. by which the Dutchy and possessions thereof were severed from the Crown See Plowden in the Case of the Dutchy of Lancaster 213. And see ibid. the Statute of 1 H. 4. Entituled Charta Regis Hen. 4. 1. De separatione Ducatus Lancastr à Corona by which it is enacted That the Dutchy of Lancaster taliter tali modo deducatur gubernetur pertractetur c. ac si ad culmen dignitatis Regiae assumpti minime fuissemus So as by that Act the Dutchy is dis-joined from the Crown and in such point as to possession as it was in a common person But the possession of the Dutchy doth not bind the person of the King as 10 H. 4. 7. The King brings an Action for certain Lands to him descended from his Vncle the Duke of Lancaster and the Writ was Non omittas propter aliquam libertatem and exception was taken to the Writ because that such clause ought not to be in the King 's Writ but where the King sueth as King but that Writ he sueth as Duke of Lancaster but the exception was not allowed The King cannot sue otherwise but as King for the person of the King ought not to be measured according to his possession so as it was a severance in order survey government and process and not in respect of the person But after the Statute of 1 H. 4. The said Act of Separation was repealed and farther enacted that the said King should hold the said Dutchy to him and his heirs Kings of England so as thereby the Dutchy is settled in the politick Body of the King afterwards came the Statute of 1 H. 7. by which it is enacted That the King shall hold the said Dutchy and the possessions thereof in such manner and form and so separated from the Crown as King Henry the fourth and King Henry the fifth did hold the same so as the Dutchy was devested out of the Body politick of the King where it was setled 1 H. 4. and vested in the Body natural of the King so as the possession of the Dutchy as to their government c. are in the King as they were in the Duke of Lancaster before he was King and if the Duke of Lancaster had made a Feoffment c. the Feoffee should not hold of him but of the King So if the King himself maketh a Feoffment of Lands of the Dutchy the Feoffee shall hold of the King c. which see in the Dutchy of Lancaster's Case in the end of it And he conceived That notwithstanding the union of the Crown and the Dutchy yet the privity of the Tenure doth remain being preserved by the said Act of 1 H. 4. Another matter was That here the Tenure reserved is Tenend in feodi firma Reddend 10 l. c. And he said that this Rent is not parcel of the Tenure but rather a Rent-charge collateral to the Tenure For in all Cases where there is a Tenure expressed in suit or implied in Law before there Reddendo following shall not make the thing rendred parcel of the Tenure 3 Cro. 210 211. but it shall be a Rent in gross and here Tenend in feodi firma makes the Tenure c. and the Reddendo after shall not make the Rent reserved parcel of the Tenure See the
Case 33 E. 3. Annuity 52. before the Statute of Quia Emptores terrarum a man makes a Feoffment in Fee Tenend de Dom. Capital Feod c. Reddend 10 s. Rent here because that the Tenure was reserved Capital Dom. feodi illius this Rent reserved is not parcell of the Tenure but a Rent in gross King Edward the sixth gave certain Lands to Cranmer Archbishop of Canterbury Tenend by the fifth part of a Knight's Fee Reddend inde 6 l. per ann Cranmer made a Feoffment in Fee to the use of himself for life and afterwards to the use of his eldest son in tail the remainder to the right heirs of Cranmer who is attainted of Treason by which the remainder in Fee escheated to the King by which the Seignory is gone But it was adjudged that notwithstanding that escheat the Rent did remain for the Rent was not parcel of the Seignory Now this Rent being a thing newly created and not parcel of the possessions of the Dutchy in 1 H. 4. nor ever descended from any Ancestor of the King being Duke of Lancaster shall be accounted to be in the King in the right of his Crown and so cannot pass by the Dutchy-seal See the said Statute of 1 H. 4. and the King cannot enlarge the said Dutchy nor the possessions thereof beyond the possessions which were of the Dutchy at the time of the making of the said Acts As if J. S. seised in Fee is impleaded and he saith that he holds the Lands in demand for life the remainder to the King in the right of his said Dutchy now the said remainder is vested in the King not in the right of the said Dutchy but in the right of his Crown The Villain of the King in the right of his Dutchy of Lancaster purchaseth Lands the King seizeth he shall be seised thereof in the right of his Crown and not of the Dutchy The King grants Common out of certain Lands parcel of his said Dutchy and afterwards makes a Feoffment of the said Lands to another the Grantee of the Common dieth without heir so as the Common escheats to him now he shall have the Common in the right of the Crown and not of the Dutchy so although it is said That the Rent shall follow the nature of the Land out of which c. yet the same is but to some intents and not to every intent See the Statute of 2 and 3 Phil. Ma. cap. 20. by which it is enacted That all the Lands which have been granted or severed from the Dutchy to any person or persons and after such grant have come or reverted to the King in possession reversion or remainder or otherwise by attainder escheat forfeiture c. shall for ever be united to the said Dutchy and shall be adjudged and esteemed as part and member of the same which proves that such Lands were not holden of the King as Duke of Lancaster but as King for if they had been holden of the Dutchy upon the escheat they should be parcel of the Dutchy again without help of that Statute See the special Reservation Reddendo Domino Regi haeredibus suis aut illi cui de jure reddi debet c. Now when the King grants the Seignory to the Lord Audley it was in the Election of the Ter-tenant to whom he would pay the Rent if it had been in the Case of a common person but it is otherwise in the Case of the King As if A. holdeth of two several Lords by owel Feoffment and dieth his heir within age the Lord which first gets the Ward shall have him but in the Case of the King it is otherwise Plowden The King is not bound by the Statute of West 3. But in this Case in the making of this Feoffment with this Tenend Reddend the Feoffee shall hold of the King as of his Dutchy for all grants of the King savour of the person of the King and then his Prerogative wrapt in the person shall guide the same and see the Statute of West 3. extends to all who make Feoffments Tenend de Feoffatoribus but the King is not Tenant to any one And if the King be seised of an Advowson in the right of his Dutchy and the same becomes void and the King presents to the same he may repeal his presentation and he vouched divers precedents of Patents made to many great Lords to hold of the Dutchy and also to hold of others And the King by his Dutchy-seal may give Lands in Mortmain And he argued That this Rent although newly created yet in so much as it came and accrued in respect of the Land which was parcell of the Dutchy it should be accounted also parcel of the Dutchy as if before the Statute of West 3. A. seised of Lands in Fee of the part of his father makes a Feoffment in Fee Tenend by such services c. the same Seignory shall go to the heirs of the part of the father in lieu of which the Seignory is come Tenant in tail after the Statute of 32 H. 8. makes a Lease for years according to the said Act rendring Rent to him and his heirs it shall be intended heirs in tail It was adjourned CXCVIII. Forster and Walker 's Case Pasch 26 Eliz. In the King's-Bench IN an Ejectione firmae by Foster against Walker the Case was 3 Cro. 106. Shepherd's Touch-stonâ— of Conveâ—…ances 416. That Richard Meager was seised of a house in London and 6 E. 6. he devised the same to his Wife for life the remainder to John his son in tail the remainder to the Master and Wardens of the Cordwaynors in London and died the Wife entred and died John died The Master Wardens and Commonalty of the Cordwaynors entred and leased the Plaintiff upon whom the heir general of the Devisor did enter The onely question was inasmuch as the Cordwaynors of London are incorporated by the name of Master and Wardens and Commonalty of Cordwaynors If this devise made to them by the name of Master and Wardens of the Cordwaynors of London be good or not It was argued by Daniel that the Devise by the manner was good enough and he insisted much upon the favour which the Law gives to Wills and to Legatees in the Devises and construction of them even in Devises and Grants to Corporations and as to Grants to Corporations he cited the Case of the Dean and Chapter of Norwich Decanus Capitulum sanctae individuae Trinit and they make a Lease leaving out these words sanctae individuae and yet held the Lease was good notwithstanding that for the words left out are not words of substance of the name but for the beauty and ornament of it But in the Case of Devise if the name be mistaken in matter of substance yet if upon the Devise the intent of the Devisor sufficiently appeareth it is good enough for the intent of the Devisor shall guide the Devise and
60 years and afterwards enfeoffed Oxenbridge to the use of the said Cheney and his wife for their lives with divers remainders over and it was adjudged in the Court of Wards that by the Feoffment the term was not extinct And he put the case of the Lord Paget in the King's Bench adjudged A Feoffment was made unto the use of the Feoffor for life the remainder to him whom the Feoffor should name at his death in Fee the Feoffor and the Feoffees for good consideration levied a Fine unto a stranger and afterwards the Feoffor named one and died the party named by the Feoffor shall have the land notwithstanding the Fine Beamount The contingent use here is utterly destroyed by the Feoffment aforesaid and it appeareth by the preamble of the Act of 27 H. 8. That the makers of the Act did not favour Vses but their intent was utterly to extirpate Vses And if contingent Vses which are not nor cannot be excused by the Statute should stand in force The mischief would be That no purchasor should be secured and safe in his purchase but should always be in danger of a new born Vse not known before and he grounded his farther argument upon the reason of Manwood and Dyer Where a man makes a Feoffment in Fee to the use of himself and his Wife which shall be and afterwards he and the Feoffees and those in remainder make a Feoffment to divers new Feoffees and to new Vses and afterwards he takes another Wife and dieth It was the opinion of the said two Iudges That by that Feoffment ut supra the contingent Vses are destroyed For when the Estate which the Feoffees accept is taken away which was the root and foundation of the Vses which are the branches and fruit of the body of the said Tree it necessarily followeth That they be also taken away and because the Feoffees by their Livery are barred to enter to recontinue the Estate which should yield such Vses they also are gone and extinguished Yelverton was of opinion that notwithstanding the said Feoffment that the Vse should rise in his due time according to the limitation of it It was adjourned CCXIX. The Lord North 's Case Trin. 30 Eliz. In the King's-Bench THE Queen granted unto the Lord North and his heirs the Fines pro licentia concordandi and one would not pay him the Fine for which cause the Lord North brought an Action upon the Case against him and declared upon Indebitatus assumpsit c. Godfrey moved this matter to the Court to know their opinion if such Action would lie for the matter or not Fenner For a Fine in a Court-Baron or Court-Leet debt lieth but as he conceived 1 Leon. 249 250. 3 Len. 56. 234. here this Action doth not lie for it is a real Fine and there is no contract betwixt the parties but the same is given by the Law and some were of opinion that debt lieth for a relief for there is a contract by Fealty Gawdy conceived That the Action doth well lie for it is not any casual profit and therefore debt lieth for it although it be an inheritance And see Dyer 28 H. 8. 24. The heir shall have an Action of Debt upon a Nomine poenae reserved by his Ancestour Wray I do not see that he hath any other remedy and therefore I am of opinion that this Action will lie CCXX Mrs. Paschall 's Case Trin. 31 Eliz. In the Exchequer MIstress Paschall was bound with sureties for her appearance before the high Commissioners that she should not depart without licence under the hands of three of them and she pleaded the general Pardon at the last Parliament in which there is an Exception of all Bonds and Recognizances except onely such Bonds and Recognizances as are for appearance And Atkinson argued That she ought to be discharged by the Exception for although the departure without licence be not specially named yet it is within the sense for the not departure without licence is no other thing than to continue her appearance Popham contrary For The Non departure without licence was set down in the Condition to this purpose That she should not go into the Countrey to be corrupted there or to corrupt other and receive Seminaries c. therefore it is another thing than appearance Between Hore and Hare the Case was One was bound to make his appearance at such a day and in the mean time thrice every Month to repair unto such a Preacher to be better informed in Religion although the Non appearance was pardoned yet the other point i. the resorting to the Preacher is to be answered Atkinson There the resorting to the Preacher is collateral and a several point from the appearance But in the Case at Bar the not departure is pursuant to the appearance And the opinion of all the Barons was That the pardon did not extend to the same CCXXI Trin. 31 Eliz. In the Common-Pleas 1 Len. 205. AN Action was brought against an Executor who pleaded That he refused the Executorship upon which the parties were at issue The Bishop certified Quod non recusavit whereas in truth he had refused before the Commissary of the Bishop Fenner Serjeant moved to have the advice of the Court upon this matter and argued That the Court ought to write to the Commissary which was denied by the Court for he is not the Officer to this Court as to that purpose but the Bishop himself is our Officer and the party cannot have an Averment against the Certificate of the Bishop no more than against the Retorn of the Sheriff And the Court also held That the onely remedy for the Defendant was by an Action upon the Case against the Bishop for his false Certificate But it was moved That the issue joined upon the refusal ought to be tried by the Countrey and not by the Certificate of the Bishop and such was the opinion of Windham and Walmsley Periam Where the issue is that the Executor refused before such a day or after there the issue shall be tried by the Countrey contrary Where the issue is upon the refusal generally for the refusal is before him as Iudge as also resignation is CCXXII Giles 's Case Mich. 28 and 29 Eliz. In the King's-Bench A Writ of Error was brought in the King's-Bench to reverse a Iudgment given in an Action upon the Case in the Court of Common-Pleas where the Writ brought against the Defendant there in that Case was Quare exaltavit stagnum per quod pratum of the Plaintiff was inundatum The Defendant in the Action there pleaded Not guilty and the Iury found That the Defendant Erexit stagnum and they said That if the Court shall judge That Erectio and Exaltatio be all one then they find that the Defendant is guilty and afterwards Iudgment was given in the said Court of Common-Pleas for the Plaintiff Whereupon this Writ of Error is brought And Glanvile Serjeant who
such a pasture but so many beasts that such a prescription is a void prescription It was argued on the other side That the owner of the soil hath not the true property of the Conies in him but a kind of property And see F.N. B. 86 and 87. Quare clausum fregit 20 Cuniculos cepit Against a stranger he may have an Action but not against the commoner because he hath wrong in his common by the feeding of the Conies there for although he hath not an interest in the soil yet he hath an interest in the profits of it and a commoner may distrain the beasts of him who hath not right of common for damage-feasance as the books are 4 H. 7. 3. 15 H. 7. 15. and there the commoner hath not any remedy if he cannot enter and kill the Conies for he cannot take them damage-feasance nor can impound them for no Replevin lyeth of them if the owner of the soil ploweth the lands yet the commoner may put in his cattel claiming his common and he may well justifie the same because the wrong beginneth in the owner of the soil At another day the Case was moved again and then it was argued by Coke and he said The point is Whether a commoner having common of pasture may kill the Conies which are upon the ground and he argued That he might not And first he said It is to be considered what interest he who hath the Freehold may have in such things as are Ferae naturae and then what authority a commoner hath in the ground in which he hath common As to the first point he said That although such beasts are Ferae naturae yet they are reduced to such a property when they are in my ground by reason of my possession which I then have of them that I may have an Action of trespass against him who taketh them away as in the book in 42 E. 3. If one hath Deer in his Park and another taketh them away he may have an Action of Trespass for the taking of them See 12 H. 8. If a Keeper or Forrester follow a Buck which is chase out of the Park or Forrest although he who hunteth him killeth the Buck in his own ground yet the Keeper or Forrester may enter into his ground and seize the Deer because the property and possession of the Deer is yet in them by their persuit In 7 H. 6. It is holden That if a wild beast doth go out of the Park the owner of the soil hath lost his property in it but upon the said book it may be well collected that whilest it remains in the Parke That the owner of the Park hath property in it for 18 E. 4. 14. It is doubted whether a man can have property in such things which are Ferae naturae But in 10 H. 7. 6. it is holden That an action of Accompt lyeth for things which are Ferae naturae and see 14 H. 8. 1. In the Bishop of London's Case and 22 H. 6. 59. That as long as such things are in the parties ground they are in his possession and he hath a property in them and in an Action brought for them The Writ shall be Quare damas suas cepit by Newton And see in the Register fol. 102. where an Action was brought Quare ducent Cuniculos suos pretii c. cepit It hath been objected on the other side That the Defendant hath common there To that I answer Admit he hath common yet he hath not an interest in the soil for he cannot meddle with the wood grass or other profit arising of the soil but the interest which the commoner hath is onely the feeding of the grass with â—he mouths of his cattel and if he who hath the Freehold in the ground doth bring an Action against the commoner for entring into his land If the Defendant pleads Not guilty he cannot give evidence that he hath common there for such evidence will not maintain the issue See 22 Ass A commoner cannot take in the cattel of a stranger to agist upon the common and therewith agreeth the book of 12 H. 8. and so it hath been adjudged in this Court. Godfrey contrary And he argued That it is lawfull for the commoner to kill the Conies feeding in the common And he agreed all the cases which were put by Coke and farther he said That the owner of the ground had not an absolute but a kind of a qualified property in the Conies and therefore see the Book of 3 H. 6. and F.N. B. If a Writ of Trespass be brought Quare Cuniculas suas cepit the Writ shall abate and yet he hath a kind of property or a possession rather in them I grant that against a stranger the Plaintiff might have his Action for killing of his Conies but not against the commoner because the commoner hath a wrong done unto him by the Conies eating of his common and therefore he may kill them and although the commoner may not meddle with the land because he hath not an interest in it yet in some cases he may meddle with the profits of it and he may distrain the cattel of a stranger there damage-feasance as the Book is in 15 H. 7. I grant that it is not lawfull for Tenant for life to kill the Conies of him who hath free-warren in the land For if a man bringeth an Action of Trespass Quare warrenam suam intravit Cuniculos suos cepit It is no Plea for the Defendant to say That it is his Freehold See 43. E. 3. accordingly In L. 5 E. 4. In Trespass Quare clausum fregit Cuniculos suos cepit The Defendant said That the Plaintiff made a Lease at will to J. S. of the land and that he as servant to the said J. S. did kill the Conies there and it was holden a good Plea and yet it is there said That by the grant of the land the Conies do not pass but the reason of the book might be as I conceive because the feeding on the land with the Conies is to his damage and therefore that he might justifie the killing of them and so are the Books of 2 H. 7. and 4 E. 4. If I have common of pasture in lands and the Tenant ploweth up the land I shall have an action upon the Case in the nature of a Quod permittat And in 9 E. 4. If one hath lands adjoyning to my land and levyeth a Nusance I may enter upon the land and abate the Nusance So if a man taketh my goods and carrieth them unto his own lands I may enter therein and seize my goods So if a Tenant of the Freehold plows the land and soweth it with corn the commoner may put in his cattel and therewith eat the corn growing upon the land So if a man do falsly imprison me and put me in his house I may justifie the breaking open of his house to get forth In 21 H.
said day was Dies Ascentionis sic non juridicus and so no Court there then holden and then the said Deed was not delivered in Court of Record and then not delivered unto him as a Iudge but as a private person although it was delivered to the use of the Queen But in 37 H. 6. there is some opinion That if such a Deed be delivered in Court to one of the Barons or be put into the King's Coffers that then it is a Record Atkinson contrary And as to the first Exception It is to be known That in every Plea where a contempt is laid to the charge of the Defendant he ought first to excuse or clear the contempt and therefore here the Exordium of the Plea is Quoad venire vi armis quicquid est in contemptum dominae Reginae nec non de tota ulteriore transgressione contemptu per ipsos fieri supposit ipse in nullo est inde culpabilis and afterwards plead over and so it is in an Action of trespass and also upon the Statute of 8 H. 6. of Forcible entry and here the issue upon the contempt follows the other issue for if the one issue be found against the Defendant so also is the other As to the other point I grant That a Corporation cannot take or speak without writing And the King being the Corporation of Corporations and the chief of Corporations and who makes all Corporations cannot take without a writing of as high a nature scil Record And we have a Record here as it is granted of the other side being inrolled the 18. of May which was delivered the 16. of May and then Payne upon the whole matter was the 17. of May an intruder by relation of the Deed to the time of the first delivery And an intruder by his entry cannot gain any thing out of the Queen and therefore the information upon the intrusion is diversis diebus vicibus intrusit although it be but one continued possession and therefore at every instant during his possession he is an intruder As unto the delivery of the Deed of Assignment upon the day of the Ascention which is not dies juridicus the same is not material as is 12 E. 4. 8. by Pigot If the day of the Retorn of a Writ i. e. quarto die falls out in die Dominica yet it is good enough although no Court can then be holden but the day following and the Plea is not discontinued And this delivery of the Deed of Assignment might be out of Term and therefore at any day within the Term which is not dies juridicus but contrary of a thing which is necessarily to be done within the Term as in the Case between Fish and Broket of Proclamations made upon a Fine for a man may acknowledge a Recognizance or a Deed to be inrolled in the time of Vacation c. Tanfield As to the interest the inrolment hath relation but not as to the profits for Payne cannot be an intruder the 17 of May by any relation Popham the Queens Attorney When an information upon intrusion and taking of the profits is here exhibited the Defendant ought to justifie his entry and if the entry be found against him so as his entry is an intrusion then the unlawfull taking of the profits is found also and he said That the Deed acknowledged and delivered to the Baron is a Record although it be not enrolled be the acknowledgment thereof either out of Court or in Court If an information upon a Penal Statute be exhibited unto a Baron of the Exchequer out of Court and afterwards another informer exhibits another information upon the same Statute for the same offence against the same person and that is brought into the Court before the first the first information shall be preferred and the Defendant shall answer to that and not to the other and for the exhibiting of it in Court or out of Eourt it is not material And the Assignment when it is inrolled hath relation unto the acknowledgment of it A Reversion is granted to one for life the Remainder to the King the particular Tenant Attorns the Remainder is not in the King by the Attornment but if the Deed be afterwards inrolled it shall be said to be in the King from the time of the Attornment and the King shall have the benefit of the whole mean profits from the time of the Attornment A Lease for years is made by the King reserving Rent with clause of distress That if the Rent be not paid that the Lease shall be void the Rent is not paid ten years after an Office is found the King shall be answered all the profits from the time of the default of payment of the Rent and although no intrusion can be laid on the information 17 Maii yet it shall be for the 18 day of May. Coke The Iudgment for the Queen upon an information of intrusion Quod defend de intrusione transgressione contemptu praedict convincantur c. and afterwards a Commission shall issue forth to enquire of the mean profits and there the Defendant may shew the matter for to mitigate the damages and if the intrusion be at any time in the information it is well enough to have Iudgment and in our Case the continuance is laid 18 Maii. Egerton Solicitor General The Record doth warrant the Iudgment given upon it for possession laid in the Queen is sufficient to maintain this information and here Payne doth not answer to the title of the Queen but traverseth the intrusion and therefore being found an intruder by Verdict Iudgment ought to be given upon it for the Iury have found the intrusion generally and not specially the 17 of May and that cannot be assigned for Error for it is part of the Verdict of which Error doth not lye but attaint for if any Error was the same was in the Iury and not in the Court which Manwood granted Tanfield As unto the Case of continuance of an intrusion it is clear that every continuance ought to have a beginning for a thing which hath not a beginning cannot be continued and here is not any beginning for the beginning which is laid in the information is pretended to be 17 Maii and that cannot be for the Cause aforesaid Popham If an information be brought of intrusion as appears in many Memorandums in the Exchequer where in truth there is not any Record to prove it and the Iury find the intrusion Will you have a Writ of Error upon it And every continuance of intrusion is intrusion Anderson The same matter had been good evidence Sed non habet locum hic CCLVII Beale and Langley 's Case Trin. 29 Eliz. In the Common Pleas. Int. Hil. Rot. 1544. JOhn Beale was Plaintiff in a Replevin against Robert Langley and Roger Hill The Case was That Henry Earl of Arundel was seised of the Manor of Bury in his Demesn as of Fee whereof the place
meaning of the Obligee to have fine gold it was so taken 39 H. 6. 10. and 11. The word uterque id est quilibet pro parte sua See the Book so it was lately adjudged in the Court of Common-Pleas where three were bounden Et eorum uterque which was construed to be Quilibet for we ought always in construction of Deeds to have regard to the meaning of the parties and not to argue the aptness of the Latine word And I conceive That if a Lease be made for life the remainder puero of J. S. who hath a son and a daughter the son shall have the land c. for the most worthy shall be preferred and therefore if a Freeman marrieth a Neife she is enfranchised for ever according to the opinion of Fitzherbert which I hold to be good Law for the husband is the more worthy So if the Lease for life be made 〈◊〉 J. S. the remainder to the right heirs of A. B. who hath issue three daughters and dieth the eldest shall have the remainder and not the other with her because she is the more worthy and so a remainder upon an Estate for life of lands in Gavelkind limited to the right heirs of J. S. who hath issue two sons the eldest shall have it So here in the principal Case Puer shall be expounded son because he is the more worthy But here are other circumstances which give occasion of another construction for this doubtfull word Puer is explained by the English Indenture which the father W. Humphreston caused to be made Unto the use of the eldest Child which is a good exposition of the former Conveyance and I am of opinion that the same ought to be meant of the daughter for so soon as she is born the remainder vests in her and by the birth of the son after shall not be devested Land is leased to A. for life the remainder to T. son of A. who hath two sons of the same name the eldest shall have it because the more worthy but if afterwards the Donor declares his meaning to the contrary the same shall stand c. And afterwards Iudgment was given against the Plaintiff and that the daughter should have the Lands CCLXXVI Pasch 16 Eliz. In the King's-Bench Poph. 182. Hughs Abr. Tit. Devise 657. Case 5. Savile 72 73. Dy. 371. b. Shep. Touch. 449. 15 H. 7. 12. Ante 43. Perk. 547. A Man devised his Lands to his Wife for life and because he was in doubt whether he should have issue or no he farther willed by his Will That if he should not have any issue by his Wife that then after the death of his Wife the lands should be sold and the money thereof coming distributed to three of his bloud and made his Wife and another his Executors and died The Executors proved the Will The other Executor died and the Wife sold the lands and it was the opinion of Wray and Southcote Iustices That the sale was good although it be not expressed in the Will by whom the Lands should be sold for the moneys coming of the sale are to be distributed by his Executors to persons certain as Legacies and it appertains to Executors to pay the Legacies and therefore they shall sell c. As if a man willeth That his lands shall be sold and that the moneys coming thereof shall be disposed of for the payment of his debts now the Executors shall sell the Lands for to them it belongs to pay debts Also they held 3 Cro. 278. 3. More 341. 1 Inst 113. a. 1 And. 145. that the Lands should be sold in the life of the Wife otherwise it could never be sold and also the surviving Executor shall sell the lands because the authority doth survive CCLXXVII Pasch 16 Eliz. In the King's-Bench THree men were bounden by Recognizance jointly and severally against all which the Conusee sued forth Execution by Scire facias and upon issue joined it was found for the Plaintiff in the King's-Bench and Execution awarded by Capias ad Satisfaciend And because the same erronicè emanavit being upon a Recognizance it was drawn off the File and now the Conusee brought an Action of debt upon the Iudgment against one of them and the opinion of the whole Court was that it would not lie because the Iudgment was joint against them all three CCLXXVIII Pasch 16 Eliz. In the King's-Bench A. Brought an Action upon the Case and declared That the Dean and Chapter of Westminster did lease unto him a house for years by Deed indented of which Indenture he was possessed and afterwards lost it and by Trover it came to the hands of the Defendant who sold it and converted the money thereof coming to his own use The Defendant pleaded Not guilty and the Plaintiff gave in evidence That the said Lease was made to him and to one B. and that the said Indenture was delivered to the said B. And that was agreed to be the possession of them both and afterwards B. died and afterwards A. the Plaintiff was the sole owner of it and that was holdden to be good Evidence on the part of the Plaintiff and if the Plaintiff can prove the other part of his Declaration i. e. that the Indenture came unto the hands of the Defendant and that he sold it that then he should recover But it was given in Evidence on the Defendants parts that the said B. sold to the said Defendant his part and interest in the said Lease and also the said indenture so as now he is become Tenant in common with the Plaintiff and then his sale doth not give any cause of Action to the Plaintiff and that was holden by the whole Court to be good evidence without pleading of it The Case went farther That A. being within age his father leased the lands for 20 years and afterwards the son at his full age upon the back of the Indenture did release to the Defendant all his right and it was holden by Wray Iustice That when the father leased he did it as Guardian to his son and it was not any Ejectment of the son but it was a Lease in the behalf of the son although the son might avoid it and then when the endorsment is ut supra the same is a good assignment and afterwards the Plaintiff was Nonsuit CCLXXIX Pasch 16 Eliz. In the King's-Bench IN an Action upon the Case the Plaintiff declared That B. by his Will did devise to each of his daughters he having two daughters 200 l. and that the survivor should have the whole and shewed farther that one of his two daughters died and that B. made his Wife his Executrix and that the said wife took to husband the Defendant and farther declared That the Defendant in consideration of all that and that the Defendant should take the surviving daughter to wife and in consideration that the Defendant had Assets to pay all Debts and
after the Statute of 27 H. 8. and afterwards Robert Brent the Husband levyed a Fine to the same uses and took a second Wife and died The second Wife by the assent and commandment of the first Feoffees after the five years past after the Fine entered to raise the uses mentioned in the first Feoffment limited to the second Wife This Case was argued by all the Iustices of the Court of Common-Pleas and Mounson Iustice conceived that the Entry of the Wife was lawfull and that without the assent or commandment of the Feoffees An use may be limited to one who is in esse or in posse and the second Wife here was in esse when the use was limited and she was also in posse for by possibility the first Wife might die and also by possibility the Feoffor might take to Wife this Woman A Gift to one who is not in esse or in posse is void A Gift to J. S. primogenito filio suo if he have a Son alive at the time of the Gift he shall take jointly with his Father but if not Co. 1 Rep. Shelley's Case yet after his death he shall take by way of Remainder A use is nothing else but a trust and confidence and was not any Inheritance by the course of the Common Law for no mention is made of uses in our ancient Books when the Common Law greatly flourished as in the time of E. 1. and E. 3. and also uses are not subject to the grounds of Law And although divers Statutes have been made for the avoiding of divers policies for the gaining of Lands in Mortmain yet the makers of the said Statutes could not find out any such conveyances to uses See the Statute of Religiosis 7 E. 1. and see 29 H. 8. tr Mortmain 39. There is a glance at uses 44 E. 3. 25. b. the words are En foy demist c. and the Feoffees sued Livery And the first mention of Vses in our Books is 30 H. 6. Br. Title to Uses 49. and the same case Devise Fitz. 22. In the time of E. 4. Vses were more frequent for 5 E. 4. 8. divers cases concerning Vses are there put c. and afterwards 1 R. 3. a new Statute was made for the benefit of Cestuy que use and afterwards the Statute of 4 H. 7. for the Wardship of Cestuy que use and afterwards the Statute of 27 H. 8. which made an end of Vses These Vses at the first were of no value but afterwards by continuance Communis error fecit jus so as they were taken and esteemed as Inheritances And they cannot be more fitly resembled to any thing as to Copyholds which at beginning were but Tenures at will and were not known at the Common Law but now they are in the same reputation in Law as Inheritances and they are not guided by the Rules of the Common Law but by the intent of the parties which appeareth in this Case at Bar to be That she who should be the second Wife of Robert Brent the Feoffor should have the Lands ut supra and therefore this Vse shall rise and the Statute of 27 H. 8. shall draw the possession after it Manwood Iustice As to the commencement of Vse it hath been as long as mankind hath been guided by Reason and although no mention is made of Vses in our ancient Books yet that is no argument that Vses have been but of late times Vses were not common therefore were not at all is a Non sequitur As long as Wills have been Trust and Confidence hath been and also as long as Marriage hath been See the Writ of Causa Matrimonii prolocuti and see the Statute of Marlbridg cap. 6. there is mention of falsa Feoffamenta And note by other words of the said Statute there was a Trust but it was a false trust to deceive another and therefore such a mis-shapen Trust is not called a Trust by the said Statute but a Collusion And Mr. Littleton saith That Cestuy que use shall be sworn upon Enquests which was not enacted by any Statute but practised and put in ure by reason of Common Law. And I have seen divers ancient Deeds of Vses and in ancient time you shall not find that any would purchase Lands to himself alone but had two or three joint Feoffees with him and he who was first named in the Charter of Feoffment was Cestuy que use although that no Vse was declared unto him upon the Livery and so it was known by the occupation of the Lands And the reason why no mention is made in our ancient Books of Vses is because men were then of better Consciences than now they are so as the Feoffees did not give occasion to their Feoffors to bring Subpoena's to compell them to perform the Trusts reposed in them As to that which hath been said That Vses have taken their beginning after the Statute of West 3. For before the said Statute if a man had made a Feoffment in Fee without declaring any use it should be to the use of the Feoffee because there is a sufficient consideration betwixt the Feoffor and Feoffee to raise the use i. the Seignory created by the Law betwixt them but now by the said Statute such consideration is taken away and then upon such Feoffment without consideration or declaration of use it is to the use of the Feoffor himself the same is no reason against them for although that an Vse implied was not before the said Statute of West 3. yet a Vse expressed was and if before the said Statute the Feoffor had declared an Vse the same had been good as at this day a Gift in tail or a Lease for life is made to another use yet notwithstanding that the Law doth create a Tenure upon the Lease or Gift yet the use expressed shall be good And although Vses are of such Antiquity yet they are not directed by the Rules of the common Law but by the Will of the Owner of the Lands For the Vse is in his hands as clay is in the hands of the Potter which he in whose hands it is may put into what form he pleaseth And notwithstanding that now the possession be executed to the Vse yet the property and quality as abstracted from the possession shall not be drowned in the possession and so for as much as Vses were by permission of Law guided at the wills of the parties so also shall be the possessions And so because That an use as abstracted from the possession might have been well limited to the Wife which should be notwithstanding that at the time of such limitation such a one was not in esse in the same manner it shall be now when the possession is presently executed to the use and so in this case the second Wife shall be capable of this use according to the will and direction of the Owner If a Feoffment in Fee be made to the use of
that the words were not actionable for the words might be construed as if the life of the party were preserved by that means And it was holden 30 Eliz. in the Case betwixt Smith and Morrice that the word Witch is not actionable And therefore if a man be sued in the Spiritual Court for defamation for calling one Witch a Prohibition doth not lie It hath been holden that upon these words He went to destroy a child in a woman's belly were actionable and yet it is not Felony but a great discredit and these words Thou usest Witchcraft are not actionable And afterwards in the principal Case Iudgment was given Quod nihil capiat per Billam And by Gawdy It might be that the Plaintiff had the forfeiture of those who are convicted of offences and so liveth thereby XXXV Harford and Gardiner 's Case Trin. 30 Eliz. In the King's-Bench IN an Action upon the Case The Plaintiff declared that the Defendant in consideration that the Father of the Plaintiff had imployed his service about the business of the Testator of the Defendant to the great profit of the Testator and in consideration of love and affection that the Testator bore to the Plaintiff promised to give unto him 100 l. Curia Love is not a consideration upon which an Action can be grounded 3 Cro. 756. 1 Len. 94. the like of friendship Wray If the Plaintiff declares That the Defendant in consideration that he was indebted unto the Plaintiff in divers summs of money and promised to pay him 100 l. it is not good for the incertainty Also the consideration here was past and executed before the promise made and nothing is done by the Son. And afterwards Iudgment was given against the Plaintiff XXXVI Clark 's Case Mich. 31 Eliz. In the Exchequer Post 89. BRidget Clark was indebted to Archdell by Obligation and afterwards she delivered to one Andrews certain Hogsheads of Wine to satisfie the said Archdell de debito praedicto afterwards the Obligation of Clark was assigned to the Queen for the Debt of Archdel and if the property of the said Hogsheads of Wine were altered by the delivery of them to Andrews before the assignment was the question Egerton Solicitor General The property is not altred for the Bailor might have an Action of Account against Andrews before he hath delivered them over according to the Bailment but if he hath delivered them over the same is a good bar in Account But if one be accountable to me upon a Bailment and afterwards I require him to bail the goods over to A. the same is not in bar of the Account but is a good Plea in discharge of Account before Auditors for that is matter after the Bailment not upon the Bailment If Goods be bailed to bail over upon a consideration precedent on the part of him to whom they ought to be bailed the Bailor cannot countermand it otherwise it is where it is voluntary and without consideration but where it is in consideration of a Debt not countermandable contrary if to satisfie the Debt of another Manwood chief Baron Where the Debtor of the King is sufficient there a Debt due to him ought not to be assigned to the King but onely where the Debt is doubtfull and that was the ancient course but now at this day many seem and are accounted to be rich who are not and therefore omnis ratio tentanda est to recover the Debts of the King. But as to the Case before us Briget is Executrix to her Husband who was indebted to Archdel and she delivered the Goods to Andrews to satisfie Archdel and all that before the Assignment And I conceive that the property of the said Goods is altered for as the case is here Andrews was Surety for Clark and had a Counter-Bond of Clark to save him harmless If I borrow Money and deliver Plate for the security of it the general property is in me yet the Bailee hath a special interest in it till the Money is paid If Goods be delivered to A. to pay to B. A. may sell them An Executor hath Goods of the Testator and he with his own Monies pays the Debts of the Testator he shall retain the Goods and the property is altered And here in our Case Andrews might by virtue of the Bailment sell the Goods and with the Money pay the said Archdel And afterwards Iudgment was given That the property of the Goods was altered XXXVII Norris Case 31 Eliz. In the Exchequer IN an Information upon Intrusion against Norris and others concerning Folly John Park the Defendants pleaded in Bar a descent It was holden clearly by the Court That against the Queen a Descent is no Plea nor any Title against the Queen because nullum tempus occurrit Regi neither shall Lachess be imputed to her for the possessions of the Queen are large and it is not reason that she should be bound or tyed to look to her affairs concerning her possessions or to incur any damage in default thereof for she is to intend and manage the publick affairs of the Kingdom and State. It was also held by the Court That in pleading of a Lease for life or Feoffment the party needs not to shew the place where the Lease or Feoffment was made Popham the Queens Attorny took Exception to the Bar to the Information That whereas in the Information Title is made to the Queen and concludes prout patet per plurima Recorda memoranda Scaccarii the Defendants have not Traversed it by saying Absque hoc quod habetur aliquod tale Recordum To which it was said by Harris and Savil Serjeants That if a special Record had been alledged in certainty then we ought to have taken such Traverse but here it being in the generalty we ought not to traverse at all Manwood Because the Information is general i. ut patet per plurima Recorda so the Traverse ought to be also Another Exception was taken to the Bar because in the Information the Title of the Queen is set forth and the Defendants plead That long before the Intrusion A. was seised in Fee and enfeoffed B. who died seised c. where it might be that the Title of A. was mean betwixt the Title of the Queen and the Intrusion whereas by Manwood and Popham they ought to have said Diu antequam the Queen was seised A. was seised c. Savil and Harris If which should so plead we should confess that the Queen once had a Title and that is not true which Manwood denied for by such Plea nothing is confessed And it was said by some That where in the Bar the Title of the Queen is confessed and avoided there the Defendant shall say Diu antequam the Queen had any thing c. otherwise not And it was holden by all That in such case a Feoffment might be an induction unto a Traverse but not a Descent And by Manwood it is a general Rule as
AN Information was exhibited in the Exchequer for the Queen against the Executors of William Jordan Surveyor of the Ordinance c. and the Executors of John Bowland Deputy of Ambrose Earl of Warwick Master of the Ordinance c. In which was set forth for the Queen That certain Powder Pellets and other furniture of War came unto the hands of the said Jordan and Bowland in respect of their said Offices to the value of 400000 l. and shewed how much came to each of them and the special charge incertain per quod onerabiles computabiles Dominae Reginae devenerunt nec tamen computum unquam inde reddiderunt nec reddere voluerant sed bona catalla praedicta ad usus suos proprios converterunt in deceptionem dictae Dominae Reginae c. The Defendants pleaded Not guilty upon which the Queen's Attorny did demur in Law because the Defendants have answered onely to the Conversion in which case although they have not converted yet if the said Goods have come to the hands of their Testator it is sufficient for the Queen and the Defendants are chargeable to the Queen for the same And the Opinion of all the Barons was clear that the Defendants ought to answer to the Charge c. XLIII Collet and the Bailiffs of Shrewsbury 's Case Pasc 29 Eliz. In the Common Pleas. IN a false Imprisonment the Defendants justified by Prescription scil that they have used if any person within their Town contemptuose se gesserit against the Bailiffs of the said Town or any Warden of any Trade there to commit such a person to Prison for the space of a day or more at the least at their discretions And shewed farther That the Plaintiff did mis-behave himself tam factis quam verbis against the Wardens of such a Mystery in the said Town c. And when the Bailiffs super Querimoniam eis inde factam sent for the Plaintiff he would not come to them but mis-behaved himself against them tam dictis quam factis for which they did commit him to Prison c. upon which there was a Demurrer And afterwards Iudgment was given for the Plaintiff because their Prescription is not good for it is too large to imprison Subjects at their discretion Also they have set forth the offence of the Plaintiff generally i. Misbehaviour tam factis quam dictis without alledging any special Misdemeanor in certain XLIV Pasch 29 Eliz. In the Common-Pleas 3 Leu. 79. IT was holden by the whole Court That where a man makes his Will in this manner I will and bequeath my Land to A. and the name of the Devisor is not in the whole Will yet the Devise is good by averment of the name of the Devisor 1 Cro. 100. 1 Leo. 113. and by proof that it was his Will. And if one lying sick in extremis having an intent to devise his Land by word makes such a Devise but doth not command the same to be put in writing but another without his knowledge or command puts the same in writing in the life of the Devisor it is a good Devise for it is sufficient if the Devise be reduced in writing during the life of the Devisor XLV Leonard Lovelace 's Case Trin. 27 Eliz. In the Common-Pleas IN Waste the Case was 1 Anders 132. More Rep. 371. Savile Rep. 75. 1 Cro. 40. That Lands were devised to the Father of the Defendant and to his eldest Issue male de corpore suo exeunti And upon Demurrer it was adjudged That by this Devise no Estate passed but an Estate for life unto the Father of the Defendant the Remainder to his eldest Son for life so as no Estate of Inheritance passed thereby and therefore punishable for Waste XLVI Cobb and Prior 's Case Postea 48. Hill. 33 Eliz. In the Common-Pleas THE Case was A man deviseth his Lands to his Wife during the minority of his Son upon condition That she shall not doe Waste during the minâ—â—â—â—y of her said Son and dieth The Wife takes a Husband aâ—â— dieth the Husband commits Waste It was holden by the whole Court That the same is not any breach of the Condition XLV Salway and Luson 's Case Mich. 30 and 31 Eliz. In the Common-Pleas 1 Leon. 169. MAtthew Salway brought a Writ of Right against Luson and the Writ was Messuagium 200 acr jampnor bruerae and exception was taken to the Writ because that jampnor bruerae were coupled together where they ought to be distinctly severed and so many acr jampnor and so many acr bruerae although it was objected on the part of the Demandant in maintenance of the Writ That in the Register fol. 2. the Writ of Right is Redditu unius librae Mac. Obed. i. Mace and Cloves together without distinction or severance And it was said in a Writ of Right we ought to follow the Register and therefore a Writ of Right was abated because the word Pomarium was put in the Writ for in the Register there is no such Writ and the word Gardinum comprehends it But in other Writs as Writs of Entry c. it is otherwise See the Case of the Lord Zouch 11 Eliz. 353. In a Writ of Entry Sur Disseisin mille acr jampnor bruerae But the exception was not allowed for it may be that jampnorum bruerae lie so promiscuously that they cannot be divided And see 16 H. 7. 8. and 9. The respect which the Iustices there had to the Register so as they changed their opinions conformable to the Register Another exception was taken to the Writ because the Demandant demands duas partes custodiae de Hay in the Forest of C. and the opinion of the whole Court was that the Writ ought to be Officium custodiae duarum partium de Hay and not duas partes custodiae As Advocatio duarum partium Ecclesiae not duas partes advocationis another exception was because the Writ was duas partes c. in three to be divided whereas it should be divisus non dividend for dividendum is not in any Writ but a Writ of Partition And by Windham the parts of this Office are divided in right Quod Curia Concessit another exception was taken because in the Writ it is not set down in what Town the Forest of C. is so as the Court doth not know from whence the Visne should come for no Venire shall be de vicineto Forestae as de vicineto Hundredi Manerii and that was holden to be a material exception Another exception was taken because a Writ of Right doth not lie of an Office for at the Common Law an Office did not lie of it but now it doth by the Statute of West 2. For it was not liberum tenementum but the party grieved was put to his Quod permittat And of this opinion was the whole Court. XLVIII Johnson and Bellamy 's Case Hillar 31 Eliz. In the Common-Pleas
Postea 82 83. IN Ejectione firmae It was found by special Verdict That Mr. Graunt was seised of the Lands c. and by his Will devised the same to Joan his Wife for life and farther he willed That when Richard his brother shall come to the age of 25 years he should have the Lands to him and the heirs of his body lawfully begotten Mr. Graunt died having issue of his body who is his heir Richard before he had attained the age of 25 years levied a Fine of the said Lands with Proclamations in the life and during the seisin of Joan to A. Sic ut partes ad finem nihil habuerunt and if this Fine should bind the Estate-tail was the Question And the Iustices cited the case of the Lord Zouch which was adjudged M. 29 and 30 Eliz. Tenant in tail discontinues to E. and afterwards levieth a Fine to B. although the partes ad finem nihil habuerunt yet the Fine shall bind the entail But the Serjeants at Bar argued That there is a great difference betwixt the Case cited and the Case at Bar for in that Case the said Fine was pleaded in Bar but here the Fine is not pleaded but found by special Verdict To which it was said by the Court that the same was not any difference For the Fine by the Statute is not any matter of Estoppel or conclusion but by the Statute doth bind and extinguish the Estate-tail and the right of it and Fines are as effectual to bind the right of the entail when they are found by especial Verdict as when they are pleaded in Bar And by Periam Collateral Warranty found by Verdict is of as great force as if it were pleaded in Bar And afterwards Iudgment was given That the Estate-tail by the Fine was utterly destroyed and extinct XLIX Jay 's Case Trin. 29 Eliz. In the Common-Pleas JAY brought an Action of Debt before the Mayor of Shrewsbury c. and declared upon an Obligation which was upon condition to pay money at London and issue was there joined upon the payment And it was moved how this issue should be tried viz. 4 Inst 205. If it may be removed by Certiorare into the Chancery and thence by Mittimus into the Common-Pleas and from thence sent into London to be tried and when it is tried to be remanded back to Shrewsbury to have Iudgment See 21 H. 7. 33. Vpon voucher in the County Palatine of Lancaster the Law is such in matters real for real actions cannot be sued but in the said County Palatine but in personal matters it is otherwise for such actions may be sued elsewhere at the pleasure of the party And thereunto agreed the whole Court and although such matters have been removed before yet the same were without motion to the Court or opposition of the other party and so not to be accounted Precedents See 3 H. 4. 46. abridg'd by Brook Cause de remover Plea 41. Where he saith That a Foreign Plea pleaded in London in Debt goes to the jurisdiction but upon a Foreign Voucher in a Plea real the Plea shall be removed in Bank by the Statute to try the Warranty and afterward shall be remanded L. Sands and Scagnard 's Case Trin. 29 Eliz. In the Common Pleas. IN an Action upon the Case The Plaintiff declared that he was possessed of certain Chattels which came to the Defendant by Trover The Defendant pleaded That heretofore the Plaintiff brought Debt against the now Defendant and demanded certain moneys and declared that the Defendant bought of him the same goods whereof the Action is now brought for the summ then in demand to which the then Defendant waged his Law and had his Law by which Nihil Capiat per breve c. was entred And demanded Iudgment if c. And by Windham and Rodes Iustices The same is no bar in this Action for the waging of the Law and the doing of it utterly disproves the Contract supposed by the Declaration in the said Action of Debt and then the Plaintiff is not bound by the supposal of it but is at large to bring this Action and so Iudgment was given for the Plaintiff LI. Spittle and Davie 's Case Trin. 29 Eliz. In the Common-Pleas Owen Rep. 8 55. IN a Replevin the Case was That one Turk was seised of certain Lands in Fee and by his Will devised parcell of his said Lands to his eldest Son in tail and the residue of his Lands to his younger Son in Fee Provided that neither of my said Sons shall sell or make Leases of the Lands given or bequeathed unto them by this my Will or doe any Act with any of the said Lands to the hindrance of their children or mine by any devise or means before they come to the age of 30 years and if any of my Sons doe so then my other Son shall have the portion of my Lands so devised to his Brother the eldest Son before his age of 30 years leased the Lands to him devised ut supra for years against the intent of the said Proviso The younger Son entred 2 Cro. 398. and he leased the same Land for years before his age of 30 years Vpon which the eldest Son did re-enter and the opinion of the Court was that here is a Limitation and not a Condition and here the re-entry of the eldest Son was holden unlawfull for this Proviso did not extend but to the immediate Estate devised expresly to them and not to any new Estate which did arise upon the limitation and when the younger Son enters upon the eldest Son by the said Limitation he shall hold his Estate discharged of the Proviso or any limitation contained in it LII Martin Van Henbeck 's Case Trin. 30 Eliz. In the Exchequer AN Information was exhibited in the Exchequer against Martin Van Henbeck Merchant-stranger upon the Statute of 18 H. 6. Cap. 17. concerning the gaging of vessels of Wine and shewed That the Defendant had sold to such a one so many pipes of Wine and that none of them did contain as they ought 126. gallons and although they were so defective yet the Defendant had not defalked the price c. according to the want of measure for which he had forfeited to the Queen all the value of all the Wine so defective Exception was taken to the Information because there is not set down how much in every pipe was wanting as one or two gallons c. To as a ratable defalcation might be made according to the proportion of the want of measure But if the Informer had set forth in his Information that no defalcation was at all such general allegation of want of measure without other certainty had been good And the Case was cited 32 E. 4. 40. Lysle's Case Where the plea wants certainty or where he pleads that he was ready to shew to the Council of the Plaintiff his discharge of an Annuity c. and doth not shew
not in the King without Office in the life of the party attainted upon the words of the Act shall forfeit See Stamford Prerogat 54 55. acc He said That this interest which came unto the King by this Attainder is but a Chattel and then it is remitted by the Pardon and so he conceived if it be a Freehold For the words of the general Pardon are large and liberal Pardon and release all manner of Treasons c. and all other things Causes c. and here Forfeitures are pardoned and this word things is a transcendent c. and although it be a general word yet by the direction of the Act of general Pardon it ought to be beneficially expounded and extended as if all things had been specially set down Also the words are Pardon them and their Heirs therefore the Pardon extends to Inheritance for otherwise there is no use of that And he conceived That by the first branch of this Act that the same extends to Inheritances and to acquit the Lands of all incumbrances for every Offence not excepted for there is the word Heirs and the third branch concerns onely Chattels and that is by the word Grant where the first is by words of acquittal See 33 H. 8. br Charter of Pardon 71. Tenant of the King dieth seised the Heir intrudes Office is found by Pardon of Parliament all Intrusions are pardoned in that case the Offence is pardoned but not the issues and profits of the Lands but by a Pardon before all is pardoned But here in our case the Office is not void for the Statute makes all Precepts Commissions c. void being awarded upon such forfeiture See also in the second branch Vexed or inquieted in Body Goods or Lands and see also among the Exceptions That persons standing indicted of wilfull Murther and Forfeiture of Goods Lands Tenements grown by any offence by such person By which he said that if such Exception had not been the Land of such person if he had been attainted upon such Indictment should be forfeited as to the Traverse he said That because the Office is true our Plea is in the nature of Monstrans de Droit although it concludes with a Traverse We vary from the Office in number of the persons and in the day of Feoffment and every circumstance in case of the King is to be traversed and our Plea in substance confesseth and avoideth the Offence Although that here the King be intituled by double matter of Record scil the Attainder and the Office yet one of the said Records scil the Attainder is discharged by another Record scil the Pardon and then but one Record remains scil the Office and therefore our Traverse well lieth And he said that by the common Law there was a Traverse as where it was found by Office that the Lessee of the King had committed Waste or had cessed for two years and that in such case the Lessee and Tenant in an Action brought against them may traverse the Offence therefore there was a Traverse at the common Law where the King was entitled by single matter of Record So upon Office finding Alienation without Licence there was a Traverse by the common Law See Traverse in such case in the Case of William de Herlington 43 Ass 28. See Br. Traverse of Office 54. Petition is by the common Law and Traverse by the Statute Frowick in his Reading See Stamf. Prerogat 60. That Traverse in case of Goods was at the common Law but for Lands by Office by 34 E. 3. 14. for before the remedy was by Petition See Co. 4. part the Sadler's Case 55 56. Traverse was at the common Law concerning Freehold and Inheritance but that was in special Cases scil when by the Office the Land is not in the King's hands nor the King by that is in possession but onely by the Office is entitled to an Action and cannot make a Seisure without Suit for there in a Scire facias brought by the King in the nature of such Action to which he is entitled the party may appear to the Scire facias and traverse the Office by the common Law. It was adjourned CLXX Scott and Scott 's Case Mich. 29 Eliz. In the King 's Bench. 1 Cro. 73. 3 Len. 225. 4 Len. 70. IN a Replevin betwixt Scott and Scott the Case was George Scott 2 H. 8. being Tenant in tail of certain lands suffered a common Recovery to the use of his last Will and 15 H. 8. made his Will by which he did declare That the Recoverors should make a good and favourable Lease to Hugh Scott his younger brother and 25 H. 8. they make a Lease of the same land to the said Hugh for 199 years according to the Will of the said George Scott rendring Rent 11 l. 6 s. 8 d. payable at the Feast of the Annunciation and S. Michael by equall portions and that to the Recoverors their Heirs and Assigns and there was a Covenant that after the death of the Recoverors the said Rent should be paid to Cestuy que use his Heirs and Assigns any thing in the said Indenture notwithstanding Proviso That if the Lesse make his Heir male his Assignee of that term that then he shall pay the said Rent to the Recoverors their Heirs and Assigns and the Lessee shall not pay the Rent to the Heirs of Cestuy que use upon which a Distress is taken and thereupon a Replevin brought Drew argued for the Plaintiff When a Condition is created the Law saith That it shall be taken and construed favourably in the behalf of him who is to perform it As if one be bounden to appropriate such a Church to such a house before such a day at his own costs and the Obligor grants a Pension out of the said Parsonage and afterwards appropriates the said Church it was holden that the Condition was well performed 3 H. 7. 4. A Lease for years upon condition to scowre the Ditches if the Lessee scowreth them once it is well enough And as to this word Proviso It is to see If here it be a word conditional In some Cases this word Pro makes a Condition as 45 E. 3. 8. Grant of a Ward pro bono servitio if the Grantee departeth out of his service the Grant is void So if an Annuity be granted unto a Physician pro consilio impendendo the same is a Condition 41 E. 3. 6. For the Grantor hath not means to compell the Grantee to give his Council but in some Cases this word Pro doth not make a Condition As if before the Statute of West 3. Land was given pro homagio suo there if the Homage be not done the Feoffor could not re-enter but he ought to distrain And I conceive that in our Case Proviso doth not make a Condition 7 H. 6. 44. A Feoffment in Fee with Warranty Proviso that the Feoffee shall not vouch So a Grant of a Rent-charge Proviso that the Grant shall not