the Feoffee and another is not any new thing but the pernancy of the old profits of the Land which well may be limited to the Feoffee and another joyntly But if the use had been onely limited to the Feoffee and his Heirs there because there is not any limitation to another person nec in praesenti nec in futuro he shall be in by force of the Feoffment And it was resolved That Ioynt-tenants might be seised to an use although that they come to it at several times as if a man maketh a Feoffment in Fee to the use of himself and to such a woman which he shall after marry for term of their lives or in tayl or in fee in this case if after he marryeth a Wife she shall take joyntly with him although that they take the use at several times for they derive the use out of the same fountain and Freehold scil the Feoffment See 17 Eliz. Dyer 340. So if a Disseisin be had to the use of two and one of them agreeth at one time and the other at another time they shall be Ioynt-tenants but otherwise it is of Estates which pass by the common Law and therefore if a Grant be made by deed to one man for term of life the Remainder to the right Heirs of A. and B. in Fee and A. hath issue and dyeth and afterwards B. hath issue and dyeth and then the Tenant for life dyeth in that case the Heirs of A. and B. are not Ioynt-tenants nor shall joyn in a Scire facias to execute the Fine 24 E. 3. Joynder in Action 10. because that although the remainder be limited by one Fine and by joynt words yet because that by the death of A. the Remainder as unto the moyety vested in his Heir and by the death of B. the other moyety vested in his Heir at several times they cannot be Ioynt tenants But in the case of a use the Husband taketh all the use in the mean time and when he marryeth the Wife takes it by force of the Feoffment and the limitation of the use joyntly with him for there is not any fraction and several vesting by parcels as in the other case and such is the difference See 18 E. 3. 28. And upon the whole matter it was resolved That because in the principal case the Father and Son were Ioynt-tenants by the original purchase that the Son having the Land by Survivor should not be in Ward and accordingly it was so decreed XXIV Pasc 39 Eliz. Rot. 233. In the Kings-Bench Collins and Hardings Case THe Case between Collins and Harding was A man seised of Lands in Fee and also of Lands by Copy of Court Roll in Fee according to the Custom of the Mannor made one entire Demise of the Lands in Fee and of the Lands holden by Copy according to the Custom to Harding for years rendering one entire Rent and afterwards the Lessor surrendered the Copyhold Land to the use of Collins and his Heirs and at another time granted by Deed the Reversion of the Freehold Lands to Collins in Fee and Harding attorned and afterwards for the Rent behinde Collins brought an Action of Debt for the whole Rent And it was objected That the reservation of the Rent was an entire contract and by the Act of the Lessee the same cannot be apportioned and therefore if one demiseth three Acres rendering 3 s. Rent and afterwards bargaineth and selleth by Deed indented and inrolled the Reversion of one Acre the whole Rent is gone because that the Contract is entire and cannot be severed by the Act of the Lessor Also the Lessee by that shall be subject to two Fealties where he was subject but to one before As to these points it was answered and resolved That the Contract was not entire but that the same by the Act of the Lessor and the assent of the Lessee might be divided and severed for the Rent is incident to the Reversion and the Reversion is severable and by consequence the Rent also for accessorium sequitur naturam sui principalis and that cannot be severed or divided by the assent of the Lessee or express attornment or implyed by force of an Act of Parliament to which every one is a party as by force of the Statute of Inrolments or of Vses c. And as to the two Fealties to that the Lessee shall be subject although that the Rent shall be extinct for Fealty is by necessity of Law incident to the Reversion and to every part of it but the Rent shall be divided pro rata portionis and so it was adjudged And it was also adjudged That although Collins cometh to the Reversion by several Conveyances and at several times yet he might bring an Action of Debt for the whole Rent Hill 43 Eliz. Rot. 243. West and Lassels Case A man made a Lease for years of certain Lands and afterwards deviseth the Reversion of two parts to one he shall have two parts of the Rent and he may have an Action of Debt for the same and have Iudgment to recover Hill 42 Eliz. Rot. 108. in the Common-Pleas Ewer and Moyls Case The Devisee of the Reversion of part shall avow for part of the Rent and such Avowry shall be good and maintainable Note well these Cases and Iudgments for they are given upon great reason and consideration for otherwise great inconvenience would ensue if by severance of part of the Reversion the entire Rent should be lost and the opinion reported by Serjeant Bendloes in Hill 6 and 7 E. 6. to the contrary nihil valet scil That the Rent in such case shall be lost because that no contract can be apportioned which is not Law For 1. A Rent reserved upon a Lease for years is more then a Contract for it is a Rent-service 2. It is incident to the Reversion which is severable 3. Vpon recovery of part in Waste or upon entry in part for a forfeiture or upon surrender of part the Rent is apportionable 25. Note It was adjudged 19 Eliz. in the Kings-Bench That where one obtained a Prohibition upon Prescription de Modo Decimandi by payment of a certain sum of mony at a certain day upon which Issue was taken and the Iury found the Modus Decimandi by payment of the said sum but that it had been payd at another day and the Case was well debated and at the last it was resolved That no Consultation should be granted for although that the day of payment be mistaken yet it appeareth to the Court that no Tythes in kinde were due for which the suit was in the spiritual Court and the Tryal of the Custom de Modo Decimandi belongeth to the Common Law and a Consultation shall not be granted where the Spiritual Court hath not Iurisdiction of the Cause Tanfield chief Baron hath the Report of this Case XXV Mich. 7 Jacobi Regis IN an Ejectione Firmae the Writ and Declaration were of two parts of
Court. See 21 Eliz. Dyer 362. If Tenant in Socage dyeth seised in possession his Heir within the age of fourteen years he shall not sue Livery but shall have an Ouster le main una cum exitibus but otherwise it is if the Heir be of the age of fourteen years which is his full age for Socage and therewith agreeth 4 Eliz. Dyer 213. And two presidents were shewed which were decreed in the same Court by the advice of the Iustices Assistants to the Court. One in Trinity Term 16 Eliz. Thomas Stavely the Father enfeoffed William Strelley and Thomas Law of the Mannor of Ryndly in the County of Nottingham upon condition that they re-enfeoff the Feoffor and his Wife for their lives the remainder to Thomas Stavely son and heir apparent of tho Feoffor in Fee which Mannor was holden of Queen Elizabeth in Socage in capite and upon consideration of the saving in the Statute of 32 H. 8. next after the clause concerning Tenure in Socage in chief it was resolved That no Livery or Ouster le main should be sued in such case and the reason was because that the precedent clause giveth liberty to him who holdeth in Socage in chief to make disposition of it either by act executed or by Will at his free will and pleasure and before the said act no Livery or Ouster le main should be sued in such case and the words of the Saving are Saving c. to the King c. all his Right c. of primer seisin and relief c. for Tenure in Socage or of the nature of Tenure in Socage in chief as heretofore hath been used and accustomed But there was no use or custom before the Act that the King should have any primer seisin or relief in such case and the words subsequent in the said Saving depend upon the former words and do not give any primer seisin or relief where none was before Another president was in Pasc 37 Eliz. in the Book of Orders fo 444. where the case was that William Allet was seised of certain Lands in Pitsey called Lundsey holden of the Queen in Socage in chief and by Deed covenanted to stand seised to the use of his Wife for life and afterwards to the use of Richard his younger son in Fee and dyed his Heir of full age and all that was found by Office and it was resolved ut supra That no Livery or Ouster le main should be sued in that case but the doubt in the case at Bar was because that Henry the Feoffor had a Reversion in Fee which descended to the said VVilliam his eldest son XXI Trinity Term anno 7 Jacobi Regis The Case of the Admiralty A Bill was preferred in the Star-Chamber against Sir Richard Hawkins Vice Admiral of the County of Devon and was charged that one William Hull and others were notorious Pirats upon the High Seas and shewed in certain what Piracy they had committed the said Sir Richard Hawkins knowing the same did them receive abet and comfort within the body of the County and for bribes and rewards suffered them to be discharged And what offence that was the Court referred to the consideration of the two chief Iustices and the chief Baron who heard Councel of both sides divers days at Serjeants Inn. And first it was by them resolved that by the Common Law the Admirals ought not to meddle with any thing done within the Realm but onely with things done upon the Sea and that appeareth fully by the Statute of 13 R. 2. cap. 5. by which it appeareth that such was the Common Law in the time of King Edw. the third and therewith agreeth the Statute of 2 H. 4. cap. 11. and the Statute of 15 H. 2. cap. 3. That because the Admirals and their Deputies encroach to themselves divers Iurisdictions and Franchises more then they ought to have Be it enacted that all Contracts Pleas and Complaints and all other things arising within the bodies of the Counties as well by Land as by Water as also of Wreck of the Sea the Admiral Court shall not have any conusance power or jurisdiction c. Nevertheless of the death of a man and of Mayheme done in great Ships being in the main stream of great Rivers onely below the Bridges nigh to the Sea and not in other places of the same Rivers and to arrest Ships in the great Flotes for the great Voyage of the King and of his Realm and by the Statute of 2 H. 5. cap. 6. the Admirals of the King of England have done and used reasonably according to the ancient Law and Custom upon the main Sea See the Statute of 5 Eliz. cap. 5. And all this appeareth to be by the common Law and with that agreeth Stamford fo 51. And if a man be killed or slain within the Arms of the Sea where a man may see from the one part of the Land to the other the Coroner shall enquire of it and not the Admiral because that the Country may well know it and he voucheth 8 E. 2. Coron 399. So saith Stamford the same proves that by the common Law before the Statute of 2 H. 4. cap. 11. the Admiral shall not have Iurisdiction unless upon the High Sea See Pla. Com. 37. 6. If the Marshal holdeth Plea out of the Verge or the Admiral within the body of the County the same is voyd See 2 R. 3. 12. 30 H. 6. 6. by Prisoit 2. It was resolved that the said Statutes are to be intended of a power to hold Plea and not of a power to award execution scil de jurisdictione tenendi placiti non de jurisdictione exequendi For notwithstanding the said Statutes the Iudg of the Admiralty may do execution within the body of the County and therefore in 19 H. 6. 7. the case was W. T. at Southwark affirmed a Plaint of Trespass in the Court of Admiralty before the Steward of the Earl of Huntington against J. B. of a Trespass done upon the High Sea upon which issued a Citation to cite the said J. B. to appear before the Steward aforesaid at the common day then next ensuing directed to P. who served the said Citation at which day the said J. B. made default and the usage of the Court is that if the Defendant maketh default he shall be amerced by the discretion of the Steward to the use of the Plaintiff The which J. B. for his default aforesaid was amerced to twenty marks whereupon command was made to the said P. as Minister of the Court aforesaid to take the goods of the said J. B. to make agreement with the beforesaid W. T. by force of which he for the said twenty marks took five Cows and an hundred sheep in execution for the mony aforesaid in the County of Leicester And there it is holden by Newton and the whole Court that the Statutes restrain the power of the Court of Admiralty to hold Plea of a thing done
his Deed indented dated the 22 of December in the first year of King James made between him of the one part and the said John Sammes and George Sammes Son and Heir apparent of the said John of the other part did bargain sell grant enfeoff release and confirm unto the said John Sammes the said Mead called Grany Mead to have and to hold the said Mead unto the said John Sammes and George Sammes and their Heirs and Assigns to the onely use and behoof of the said John Sammes and George Sammes their Heirs and Assigns for ever and by the same Indenture Sir Thomas did covenant with John and George to make further assurance to John and George and their Heirs to the use of them and their Heirs and Livery and Seisin was made and delivered according to the true intent of the said Indentures of the within mentioned premisses to the uses within mentioned John Sammes the Father dyeth George Sammes his Son and Heir being within age the Question was Whether George Sammes should be in Ward to the King or no And in this case three points were resolved 1. For as much as George was not named in the premisses he cannot take by the Habendum and the Livery made according to the intent of the Indenture doth not give any thing to George because the Indenture as to him is voyd but although the Feoffment be good onely to John and his Heirs yet the use limited to the use of John and George and their Heirs is good 2. If the Estate had been conveyed to John and his Heirs by the Release or Confirmation as it well may be to a Tenant by Copy of Court Roll the use limited to them is good for upon a Release which creates an Estate a use may be limited or a Rent reserved without question but upon a Release or Confirmation which enures by way of Mitter le droit an use cannot be limited or a Rent reserved But the third was of greater doubt If in this case the Father and Son were Ioynt-tenants or Tenants in common For it was objected when the Father is onely enfeoffed to the onely use of him and his Son and their Heirs in the Per that in this case they shall be Tenants in common By the Feoffment the Father is in by the common Law in the Per and then the limitation of the use to him and his Son and to their Heirs cannot devest the Estate which was vested in him by the common Law out of him and vest the Estate in him in the Post by force of the Statute according to the limitation of the use and therefore as to one moyety the Father shall be in by force of the Feoffment in the Per and the Son as to the other moyety shall be in by force of the Statute according to the limitation of the use in the Post and by consequence they shall be Tenants in common But it was answered and resolved That they were Ioynt-tenants and that the Son in the Case at Bar should have the said Grange by the Survivor for if at the common Law A. had been enfeoffed to the use of him and B. and their Heirs although that he was onely seised of the Land the use was joyntly to A. and B. For a use shall not be suspended or extinct by a sole seisin or joynt seisin of the Land and therefore if A. and B. be enfeoffed to the use of A. and his Heirs and A. dyeth the entire use shall descend to his Heir as it appeareth in 13 H. 7. 6. in Stoners Case and by the Statute of 27 H. 8. cap. 10. of Vses it appeareth That when several persons are seised to the use of any of them that the Estate shall be executed according to the use And as to that which was said That the Estate of the Land which the Father hath in the Land as to the moyetyof the use which he himself hath shall not be devested out of him To that it was answered and resolved That that shall well be for if a man maketh a Feoffment in Fee to one to tho use of him and the Heirs of his body in this case for the benefit of the issue the Statute according to the limitation of the uses devests the Estate vested in him by the common Law and executes the same in himself by force of the Statute and yet the same is out of the words of the Statute of 27 H. 8. which are Where any person c. stand or be scised c. to the use of any other person and here he is seised to the use of himself and the other clause is Where divers and many persons c. be joyntly seised c. to the use of any of them c. and in this case A. is sole seised But the Statute of 27 H. 8. hath been always beneficially expounded to satisfie the intention of the parties which is the direction of the uses according to the Rule of the Law So if a man seised of Lands in Fee-simple by Deed covenant with another that he and his Heirs will stand seised of the same Land to the use of himself and the Heirs of his body or unto the use of himself for life the remainder over in Fee in that case by the operation of the Statute the Estate which he hath at the common Law is devested and a new Estate vested in himself according to the limitation of the use And it is to be known that an use of Land which is but a pernency of the profits is no new thing but part of that which the owner of the Land had and therefore if Tenant in Borrough-English or a man seised of the part of his Mother maketh a Feoffment to another without consideration the younger Son in the one case and the Heir on the part of the Mother on the other shall have the use as they should have the Land it self if no Feoffment had been made as it is holden in 5 E. 4. 7. See 4 and 5 Phil. and Mar. Dyer 163. So if a man maketh a Feoffment unto the use of another in tayl and afterwards to the use of his right Heirs the Feoffor hath the Reversion of the Land in him for if the Donee dyeth without isse the Law giveth the use which was part of the Land to him and so it was resolved Trinity 31 Eliz. between Fenwick and Milford in the Kings-Bench So in 28 H. 8. Dyer 11. the Lord Rosses Case A man seised of one Acre by Priority and of another Acre by Posteriority and makes a Feoffment in Fee of both to his use and it was adjudged that although both pass at one instant yet the Law shall make a Priority of the uses as if it were of the Land it self which proves that the use is not any new thing for then there should be no Priority in the Case See 13 H. 7. b. by Butler So in the Case at Bar The use limited to
certain Lands in Hetherset and Windham in Norfolk and doth not say in two parts in three parts to be divided and yet it was good as well in the Declaration as in the Writ for without question the Writ is good de duabus partibus generally and so is the Register See 4 E. 3. 162. 2 E. 3. 31. 2 Assis 1. 10 Assis 12. 10 E. 3. 511. 11 Ass 21. 11 E. 3. Bre. 478. 9 H. 6. 36. 17 E. 4. 46. 19 E. 3. Bre. 244. And upon all the said Books it appeareth that by the intendment and construction of the Law when any parts are demanded without shewing in how many parts the whole is divided that there remains but one part not divided As if two parts are demanded there remains a third part and when three parts are divided three remains a fourth part c. But when any demand is of other parts in other form there he ought to shew the same specialty as if one demandeth three parts of five parts or four parts of six c. And according to this difference it was so resolved in Jourdens Case in the Kings-Bench and accordingly Iudgment was given in this Term in the Case at Bar. XXVI Mich. 7 Jacobi Regis In the Common-Pleas Muttons Case AN Action upon the Case was brought against Mutton for calling of the Plaintiff Sorcerer and Inchantor who pleaded Not-guilty and it was found against him to the damages of 6 d. And it was holden by the whole Court in the Common-Pleas that no Action lieth for the said words for Sortilegium est rei futuri per sortes exploratio Et Sortilegus sive Sortilegista est qui per sortes futura praenunciat Inchauntry est verbis aut rebus adjunctis aliquid praeter naturam moliri whereof the Poet saith Carminibus Circes socios mutavit Ulyssis See 45 E. 3. 17. One was taken in Southwark with the Head and Visage of a Dead man and with a Book of Sorcery in his Mail and he was brought into the Kings-Bench before Knevet Iustice but no Indictment was framed against him for which the Clarks made him swear that he should never after commit any Sorcery and he was sent to prison and the Head and the Book were burned at Tuthill at the charges of the Prisoner And the ancient Law was as it appeareth by Britton that those who were attainted of Sorcery were burned but the Law is not such at this day but he who is convicted of such imposture and deceit shall be fined and imprisoned And it was said that it was adjudged That if one calleth another Witch that an Action will not lie for it is too general Et dicitur Latine Venefica But if one saith She is a Witch and hath bewitched such a one to death an Action upon the Case lieth if in truth he be dead Conjuration is derived of these words Con and juro Et propria dicitur quando multi in alicujus pernitiem jurant And in the Statute of 5 Eliz. cap. 16. it is taken for Invocation of any evil and wicked Spirits i. est conjurare verbis conceptis aliquos malos iniquos spiritus the same is made Felony But Witchcraft Inchantment Charm or Sorcery is not felony if not by them any person be killed or dyeth So that Conjuration est verbis conceptis compellere malos iniquos spiritus aliquod facere vel dicere c. But a Witch who works any thing by any evil spirit doth not make any Conjuration or Invocation by any powerful names of the Devil but the wicked spirit comes to her familiarly and therefore is called a Familiar But if a man be called a Conjurer or a Witch he shall not have any Action upon the Case unless that he saith That he is a Conjurer of the Devil or of any evil or wicked spirit or that one is a Witch and that she hath bewitched any one to death as is before said And note that the first Statute which was made against Conjuration Witchcraft Sorcery and Inchantment was the Act of 33 H. 8. cap. 8. and by it they were Felony in certain cases special but that Act was repealed by the Statute of 1 E. 6. cap. 12. XXVII Mich. Term 7 Jacobi Regis In the Court of Wards Sir Allen Percies Case SIr John Fitz and Bridget his Wife being Tenants for life of a Tenement called Ramshams the remainder to Sir John Fitz in tail the remainder to Bridget in tail the Reversion to Sir John and his Heirs Sir John and Bridget his Wife by Indenture demised the said Tenement to William Sprey for divers years yet to come except all Trees of Timber Oaks and Ashes and liberty to carry them away rendering Rent and afterwards Sir John dyed having issue Mary his daughter now the Wife of Sir Allen Percy Knight and afterwards the said William Sprey demised the same Tenement to Sir Allen for seven years The Question was Whether Sir Allen having the immediate inheritance in the right of his Wife expoctant upon the Estate for the life of Bridget and also having the possession by the said Demise might cut down the Timber Trees Oaks and Ashes And it was objected that he might well do it for it was resolved in Saunders Case in the fifth part of my Reports fo 12. That if Lessee for years or for life assigns over his term or Estate unto another excepting the Mines or the Trees or the Clay c. that the exception is voyd because that he cannot except that which he cannot lawfully take and which doth not belong unto him by the Law But it was answered and resolved by the two chief Iustices and the chief Baron That in the Case at Bar the Exception was good without question because that he who hath the Inheritance joyns in the Lease with the Lessee for life And it was further resolved That if Tenant for life Leaseth for years excepting the Timber Trees the same is lawfully and wisely done for otherwise if the Lessee or Assignee cutteth down the Trees the Tenant for life should be punished in Waste and should not have any remedy against the Lessee for years and also if he demiseth the Land without exception he who hath the immediate Estate of Inheritance by the assent of the Lessee may cut down all the Timber Trees which when the term ended all should be wasted and then the Tenant for life should not have the Boots which the Law giveth him nor the pawnage and other profits of the said Trees which he lawfully might take But when Tenant for life upon his Lease excepteth the Trees if they be cut down by the Lessor the Lessee or Assignee shall have an Action of Trespass Quare vi armis and shall recover damages according to his loss And this case is not like to the said case of Saunders which was affirmed to be good Law for there the Lessee assigned over his whole interest and therefore could not except the Mines
of Iustice And this was the end of these three days consultations And note That Dr. Bennet in his discourse inveighed much against the opinion in 8 E. 4. 14. and in my Reports in Wrights Case That the Ecclesiastical Iudg would not allow a Modus Decimandi and said That that was the mystery of iniquity and that they would allow it And the King asked for what cause it was so said in the said Books To which I answered that it appeareth in Linwood who was Dean of the Arches and of profound knowledg in the Canon and Civil Law and who wrote in the Reign of King Henry the sixth a little before the said Case in 8 E. 4. in his title de Decimis cap. Quoniam propter c. fo 139. b. Quod Decimae solvantur c. absque ulla diminutione and in the gloss it is said Quod Consuetudo de non Decimando aut de non bene Decimando non valet And that being written by a great Canonist of England was the cause of the said saying in 8 E. 4. that they would not allow the said plea de Modo Decimandi for always the Modus Decimandi is lesse in value then the Tithes in specie and then the same is against their Canon Quod decimae solvantur absque diminutione quod consuetudo de non plene Decimando non valet And it seemed to the King that that Book was a good Cause for them in the time of King Edward the fourth to say as they had said but I said That I did not relie upon that but upon the grounds aforesaid scil The common Law Statute-Laws and the continuall and infinite judgements and judiciall proceedings and that if any Canon or Constitution be against the same such Canon and Constitution c. is void by the Statute of 25. H. 8. Cap. 19. which see and note For all Canons Constitutions c. against the Prerogative of the King the common Laws Statutes or Customs of the Realm are void Lastly the King said That the high Commission ought not to meddle with any thing but that which is enormious and exorbitant and cannot permit the ordinary Proces of the Ecclesiasticall Law and which the same Law cannot punish And that was the cause of the institution of the same Commission and therefore although every offence ex vi termini is enormious yet in the Statute it is to be intended of such an offence is extra omnem normam as Heresie Schisme Incest and the like great offences For the King said That it was not reason that the high Commission should have conusance of common offences but to leave them to Ordinaries scil because that the party cannot have any appeal in case the high Commisson shall determine of it And the King thought that two high Commissions for either Province one should be sufficient for all England and no more XV. Mich. 39 and 40 Eliz. in the Kings Bench. Bedell and Shermans Case MIch 39 and 40 Eliz. which is entred Mich. 40 Eliz. in the com-Pleas Rot. 699 Cantabr the Case was this Robert Bedel Gent. and Sarah his wife Farmors of the Rectory of Litlington in the County of Cambridge brought an Action of Debt against John Sherman in the custody of the Marshall of the Marshalsey and demanded 550 l. And declared that the Master and Fellows of Clare-Hall in Cambridge were seised of the said Rectory in fee in right of the said Colledge and in June 10. 29 Eliz. by Indenture demised to Christopher Phesant the said Rectorie for 21 years rendering 17 l. 15 s. 5 d. and reserving Rent-corn according to the Statute c. which Rent was the ancient Rent who entred into the said Rectory and was possessed and assigned all his interest thereof to one Matthew Batâ— who made his last Will and Testament and made Sarah his wife his Executrix and died Sarah proved the Will and entred and was thereof possessed as Executrix and took to husband the said Robert Bedel by force whereof they in the Right of the said Sarah entred and were possessed thereof and that the Defendant was then Tenant and seised for his life of 300 acres of arable Lands in Litlington aforesaid which ought to pay Tithes to the Rector of Litlington and in anno 38 Eliz. the Defendant grano seminavit 200 acres parcel c. And that the Tithes of the same did amount to 150 l. and that the Defendant did not divide nor set forth the same from the 9 parts but took and carried them away against the form and effect of the Statute of 2 E. 6 c. And the Defendant pleaded Nihil debet and the Iury found that the Defendant did owe 55 l. and to the residue they found Nihil debet c. and in arrest of Iudgement divers matters were moved 1. That grano seminata is too generall and incertain but it ought to be expressed with what kinde of corn the same was sowed 2. It was moved If the Parson ought to have the treble value the forfeiture being by expresse words limited to none by the Act or that the same did belong to the Queen 3. If the same did belong to the Parson if he ought to sue for the same in the Ecclesiasticall Court or in the Kings Temporall Court 4. If the husband and wife should joyn in the Action or the husband alone should have the Action and upon solemn argunent at the Barre and at the Bench the Iudgement was affirmed XVI Trinity Term 7 Jocob in the Court of Wards John Bailies Case IT was found by Writ of Diem clausit extremum That the said John Bailie was seised of a Messuage or Tenement and of and in the fourth part of one acre of land late parcel of the Demesne lands of the Mannor of Newton in the County of Hereford in his Demesne as of fee and found the other points of the Writ and it was holden by the two chief Iustices and the chief Barons 1. That Messuagium vel Tenementum is uncertain for Tenementum is nomen collectivum and may contain land or any thing which is holden 2. It was holden that is was void for the whole because that no Town is mentioned in the Office where the Messuage or Tenement or the fourth part of the acre lieth and from the Visne of the Mannor upon a Traverse none can come because it is not affirmed by by the Office that they are parcel of the Mannor but Nuper parcel of the Mannor which implieth that now they are not and it was holden by them that no Melius inquirendum shall issue forth because that the whole Office is incertain and void XVII Trinity 7 Jacobi Regis in the Court of Wards THe Attorney of the Court of Wards moved the two chief Iustices and chief Baron in this Case That a man seised of lands in fee-simple covenants for the advancement of his son and of his name and blood and posterity that he will stand seised
of them to the use of himself for the term of his life and after to the use of his eldest sonne and to such a woman which he shall marry and to the heirs males of the body of the son and afterwards the father dieth and after the son taketh a wife and dieth if the wife shall take an Estate for life and the doubt was because the wife of the son was not within the Considerations and the use was limited to one who was capable scil the son and to another who was not capable and therefore the son should take an estate in tail executed But it was resolved by the said two chief Iustices and chief Baron That the Wife should take well enough and as to the first Reason they resolved That the Wife was within the consideration for the consideration was for the advancement of his posterity and without a Wife the Son cannot have posterity also when the Wife of the Son is sure of a Ioynture the same is for the advancement of the Son for thereby he shall have the better marriage And as to the second it was resolved That the Estate of the Son shall support the use to the Defendant and when the contingent happeneth the Estate of the Son shall be changed according to the limitation scil to the Son and the woman and the Heirs of the body of the Son And so it was resolved in the Kings-Bench by Popham chief Iustice and the whole Court of the Kings-Bench in the Reign of Queen Eliz. in Sheffields Case for both points XVIII Trinit 7 Jacobi Regis In the Court of Wards Sparies Case JOhn Spary seised in fee in the right of his Wife of Lands holden of the Crown by Knights service had issue by her and 22 Decemb. anno 9 Eliz. aliened to Edward Lord Stafford the Wife dyed the issue of full age the Lands continue in the hands of the Alienee or his Assigns and ten years after the death of the Father and twelve years after the death of the Mother Office is found 7 Jacobi finding all the special matter after the death of the Mother the Question was Whether the mean profits are to be answered to the King and it was resolved by the said two chief Iustices and the chief Baron That the King should not have the mean profits because that the Alienee was in by title and until Entry the Heir hath no remedy for the mean profits but that the King might seise and make Livery because that the Entry of the Heir is lawful by the Statute of 32 H. 8. XIX Trinit 7 Jacobi Regis In the Court of Wards IT was found by force of a Mandamus at Kendal in the County of VVestmerland the 21 of December 6 Jacobi Regis That George Earl of Cumberland long before his death was seised in tayl to him and to the Heirs males of his body of the Castles and Mannors of Browham Appleby c. the Remainder to Sir Ingram Clifford with divers Remainders over in tayl the Remainder to the right Heirs of Henry Earl of Cumberland Father of the said George and that the said George Earl so seised by Fine and Recovery conveyed them to the use of himself and Margaret his Wife for their lives for the Ioynture of the said Margaret and afterwards to the Heirs males of the body of George Earl of Cumberland and for want of such issue to the use of Francis now Earl of Cumberland and to the Heirs males of his body begotten and for want of such issue to the use of the right Heirs of the said George and afterwards by another Indenture conveyed the Fee-simple to Francis Earl By force of which and of the Statute of uses they were seised accordingly and afterwards 30 Octob. anno 3 Jacobi the said George Earl of Cumberland dyed without Heir male of his body lawfully begotten and further found that Margaret Countess of Cumberland that now is was alive and took the profits of the premisses from the death of the said George Earl of Cumberland until the taking of that inquisition and further found the other points of the Writ And first it was objected that here was no dying seised found by Office and therefore the Office shall be insufficient But as to that it was answerod and resolved That by this Office the King was not entitled by the common Law for then a dying seised or at first a dying the day of his death was necessary But this Office is to be maintained upon the Statute of 32 and 34 H. 8. by force of which no dying seised is requisite but rather the contrary scil If the Land be as this case is conveyed to the Wife c. And so it was resolved in Vincents case anno 23 Eliz. where all the Land holden in Capite was conveyed to the younger Son and yet the eldest Son was in Ward notwithstanding that nothing descended The second Objection was It doth not appear that the Estate of the Wife continued in her until the death of the Earl for the Husband and Wife had aliened the same to another and then no primer seisin shall be as it is agreed in Binghams case As to that it was answered and resolved That the Office was sufficient prima facie for the King because it is a thing collateral and no point of the Writ and if any such alienation be which shall not be intended then the same shall come in of the other part of the Alienee by a Monstrans de droit and the case at Bar is a stronger case because it is found that the said Countess took the profits of the premisses from the death of George the Earl until the finding of the Office XX. Trinity Term 7 Jacobi In the Court of Wards Wills Case HEnry Wills being seised of the fourth part of the Mannor of Wryland in the County of Devon holden of Queen Elizabeth in Socage-tenure in capite of the said fourth part enfeoffed Zachary Irish and others and their Heirs to the use of the said Henry for the term of his life and afterwards to the use of Thomas Wills his second son in tayl and afterwards to the use of Richard Wills his youngest son in tayl and for default of such issue to the use of the right Heirs of the said Henry and afterwards the said Henry so seised as abovesaid dyed thereof seised William Wills being his Son and Heir of full age Thomas the second son entered as into his Remainder All this matter is found by Office and the question was If the King ought to have primer seisin in this case and that Livery or Ouster le main shall be sued in this case by the Statutes of 32 and 34 H. 8. And it was resolved by the two chief Iustices and the chief Baron that not if in this case by the common Law no Livery or Ouster le main shall be sued and that was agreed by them all by the experience and course of the
same but they estreat the same into the Exchequer which hath power by the Law to writ forth Proces to the Sheriff to levy the same But if a man be convicted in the Star-Chamber for Forgery upon the Statute of 5 Eliz. that in that case for the double costs and damages that an English Writ shall be made directed to the Sheriff c. reciting the conviction and the Statute for the levying of the said costs and damages of the goods and chattels and profits of the Lands of the Defendant and to bring in the mony into the Court of Star-Chamber and the Writ shall be sealed with the great Seal and the Test of the King For the Statute of 5 Eliz. hath given Iurisdiction to the Court of Star-Chamber and power to give Iudgment amongst other things of the costs and damages which being given by force of the said Act of Parliament by consequence the Court by the Act hath power to grant Execution Quia quando aliquid conceditur ei omnia concedi videntur per quod devenitur ad illud And it was resolved That the giving of the damages to the Plaintiff was begun but of late times and although that one or two Presidents were shewed against this Resolution they being against the Law the Iudges had not any regard to them The like Resolution was in the Case of Langdale in that Court XXXI Hillary Term 7 Jacobi Regis In the Common-Pleas Morse and Webbs Case IN a Replevin brought by John Morse against Robert Webb of the taking of two Oxen the last day of November in the third year of the Reign of the King that now is in a place called the Downfield in Luddington in the County of Worcester The Defendant as Bayliff to William Sherington Gent. made Conusance because that the place where is an Acre of Land which is the Freehold of the said William Sherington and for damage-feasants c. In Bar of which Avowry the Plaintiff said That the said Acre of Land in parcel of Downfield and that he himself at the time and before the taking c. was and yet is seised of two yard Land with the appurtenances in Luddington aforesaid And that he and all those whose Estate he hath in the said two yards of Land time out of minde c. have used to have Common of pasture per totam contentam of the said place called the Downfield whereof c. for four Beasts called Rother Beasts and two Beasts called Horse-beasts and for sixty Sheep at certain times and seasons of the year as to the said two yards Lands with the appurtenances appertaining and that he put in the said two Oxen to use his Common c. And the Defendant did maintain his Avowry and traversed the Prescription upon which the parties were at issue and the Iury gave a special Verdict That before the taking one Richard Morse Father of the said John Morse and now Plaintiff whose Heir he is was seised of the said two yards Lands and that the said Richard Morse c. had the Common of Pasture for the said Cattel per totum contentum of the said Downfield in manner and form as before is alledged and so seised The said Richard Morse in the twentieth year of Queen Elizabeth demised to William Thomas and John Fisher divers parcels of the said two yards Lands to which c. viz. the four Buts of arable with the Common and intercommon to the same belonging for the term of four hundred years by force of which the said William Thomas and John Fisher entered and were possessed and the said Richard so seised dyed thereof seised by which the said two yards Lands in possession and Reversion descended to the said John Morse the now Plaintiff And if upon the whole matter the said John Morse now hath and at the time of the taking c. had Common of Pasture c. for four Beasts called Rother Beasts and two Beasts called Horse-beasts and for sixty Sheep c. as to the said two Acres of Land with the appurtenances belonging in Law or not the Iury prayed the advice of the Court. Note that this Plea began Trin. 5 Jacobi Rot. 1405. And upon Argument at the Bar and at the Bench it was resolved by the whole Court that it ought to be found against the Defendant who had traversed the Prescription For although that all the two years Lands had been demised for years yet the Prescription made by the Plaintiff is true for he is seised in his Demesn as of Fee of the Freehold of the two yards of Land to which c. And without question the Inheritance and Freehold of the Common after the years determined is appendant to the said two yard Lands and therefore clearly the issue is to be found against the Defendant But if he would take advantage of the matter in Law he ought confessing the Common to have pleaded the said Lease but when he traverseth the Prescription he cannot give the same in evidence 2. It was resolved That if the said Lease had been pleaded that the Common during the Lease for years is not suspended or discharged for each of them shall have Common Rateable and in such manner that the Land in which c. shall not be surcharged and if so small a parcel be demised which will not keep one Ox nor a Sheep then the whole Common shall remain with the Lessor so always as the Land in which be not surcharged 3. It was resolved That Common appendant unto Land is as much as to say Common for Cattel levant and couchant upon the Land in which c. So that by the severance of part of the Land to which c. so prejudice can come to the Ter-tenant in which c. 4. See the Case of in the fourth part of my Reports fo was affirmed for good Law and there is no difference when the Prescription is for Cattel levant and couchant and for a certain number of Cattel levant and couchant But when the Prescription is for Common appurtenant to Land without alledging that it is for Cattel levant and couchant there a certain number of the Cattel ought to be expressed which are intended by the Law to be levant and couchant XXXII Hill 7 Jacobi Regis In the Common-Pleas Hughes and Crowthers Case IN a Replevin between Robert Hughs Plaintiff and Richard Crowther Defendant which began Trin. 6 Jacobi Rot. 2220 The Case was that Charls Fox was seised of six acres of Meadow in Bedston in the County of Salop in Fee and 10 Octob. 9 Eliz. leased the same to Charls Hibbens and Arthur Hibbens for 60 years if the aforesaid Charls Hibbens and Arthur Hibbens should so long live and afterward Charls died and if the Lease determine by his death was the Question and it was adjudged That by his death the Lease was determined for the life of a man is meer collaterall unto the Estate for years otherwise it is if a