and Slingbyes case 361 Londons case 374 Ludlow and Stacies case 377 Loxe case 345 Lee and Grissels case 442 Leonards case 451 Lone and Hills case 458 Litfield and Melhers case 459 Langley and Stotes case 478 Lancaster and Kigleys case 507 Lovegrave and Brewens case 514 M MOuntjoyes Case 24 Macrowes Case 38 Marsh and Palfords Case 53 Megods Case 77 Miller and Gores Case 122 Mayes Case 173 Mannocks Case 191 Meâ—r and Ridouts Case 241 Marriots Case 248 Morris Case 265 Mounteagle and Pemeddocks Case 266 Meades Case 274 Miller and Reignolds Case 293 Manwoods Case 301 Maior of Yorks Case 360 Mildmays Case 416 Morgans Case 416 Morris and Clarks Case 435 Mellon and Herns Case 435 Mills Case 464 Marshes Case 465 Manns Case 471 Mutle and Does Case 480 Mole and Carters Case 484 Monk and Butchers Case 508 Moor and Hawkins Case 486 N NOrris and Salisburies case 154 Newton and Richards case 240 Newmans case 242 Newman and Babbingtons Case 250 Norton and Lysters case 291 Norton and Symms case 303 O OSborne and Trittels Case 99 Occoulds case 268 Owen alias Collins case 363 Owfield and Sheirts case 430 Ognels case 483 Offlies case 517 P POles case 13 Prideaux case 44 Plymptons case 116 Proctors case 168 Pinders case 185 Peto and Chitties case 193 Perepoints case 217 Piggot and Goddens case 221 Pitts and Wardels case 230 Prrrot and Kebles case 281 Porters case 302 Paynes case 308 Piggot and Pigots case 330 Prat and Lord Norâ—hs case 358 Paginton and Huets case 370 Plotts case 380 Pollyes case 403 Sir Iohn Parkingtons case 416 Pritchard Williams case 423 Philpot and Fielders case 427 Pye and Bonners case 443 Peters case 456 Pits and Horkley's case 458 Proctor and Cliffords case 468 Payn and Colleges case 490 Parks case 502 Palmers case 509 Perpoynt Thimblebys case 513 Pages case 717 Plats case 518 L. Pagets case 510 Q Quodds case 246 R ROots case 139 Rushwels case 186 Royley and Dormes case 260 Read and Hewes case 269 Rosseâ— and Walshes cass 296 Reorsbies and Cuffs case 316 Roe and Gloves case 332 Roberts and Hills case 434 Randal and Harveys case 452 Royden and Moulstons case 458 Roper and Roydons case 491 Roy and Hills case 517 S Skipwiths case 22 Savel and Cordels case 35 Sydenham Worlingtons case 40 Savacres case 47 Stargies case 75 Smith and Smiths case 88 Shotbolts case 91 Stransam and Colborns case 97 Strangden and Barcels case 163 Sayland and Ridlers case 177 Skipwith and Sheffields case 178 Stowels case 182 Sir John Spencer and Poyntz case 203 Stebbings case 239 Stones case 247 Sancford and Havels case 263 Sprat and Nicholsons case 283 Seymors case 307 Stowhridge Archers case 311 Smiths case 317 Sherloes case 347 Sheriff and Bridges case 349 Simpsons case 364 Smith and Staffords case 379 Slyes case 390 Spicer and Spicers case 398 Stewry and Stewryes case 410 L. Sheffield Ratcliffs case 417 Sadlers case 417 Snell and Bennets case 426 Shooter and Emets case 435 Stone and Roberts case 435 Sely and Flayles case 448 Seignior and Wolmers case 453 Stanton and Barneys case 458 Sherrington Worsleys case 465 Suttons case 476 Symmes case 477 Samson and Gatefields case 482 Scots case 487 Sommers case 489 Shortridge and Hills cases 492 Shirtford and Berrowes case 502 Syms and Smiths case 513 Simpsons case 518 Shackbolts 495 Spurlings case 479 T. THrogmorton and Terringhams case 37 Taylor and Ribera's case 90 Taylor and James case 195 Traherns case 321 Totnam and Hoskins case 445 Taylor and Askies case 455 Tollyn and Taylors case 469 Tanfield and Hirons case 486 Treventries case 488 Tucker and Carrs case 491 Taylor and Tomlyns case 511 Tennants case 507 Tompsons case 369 U. VIcar of Pancras case 63 Vernon and Grays case 145 Vaughans case 327 Veseys case 406 Vrry and Bowyers case 479 Vinior and Viniors case 515 W. VVEbb Potters case 25 Windsmore Hulberts Case 64 Wiseman and Wallmyers case 107 Wood and Ashes case 135 Warrens case 138 Widdal sir John Ashtons case 142 Winkefields case 152 Warners case 183 Whitlock and Hartwells case 184 Wilson and Wormels case 226 Woolseys case 249 Wekers case 257 Wright and Wrights case 262 Wetherell and Greens case 280 Wedlock and Hardings case 295 Wheelers case 315 Wormleighton and Hunters case 338 Whorewoods Case White and Moores case 340 Wrotesley Candishes case 354 Winscomb and Dunches case 376 Webb and Tucks case 392 Waite and Inhabitants of Stokes case 397 Webb and Paternosters case 401 Williams and Gibbs case 409 White and Edwards case 412 Wiseman and Denhams case 424 Waterer Montagues case 429 Wheeler Appletons case 434 Waterman and Cropps case 467 Whittie and Westons case 479 VVillis case 483 VVilliams and Floyds case 495 VValdrons case 509 Y. YArram and Bradshawes case 145 Yate and Alexanders case 408 Young and Englesfields case 422 Z. ZOuch and Bramports case 165 Zouch and Mitchels case 225 Zouch and Moores case 491 Mich. 17. Eliz. In the Kings Bench. 1. THis Case was moved to the Court. If an Abby hath a Parsonage appropriate in D. which is discharged of payment of Tithes and afterward the Abbot purchaseth part of the lands in the same Town and Parish where the Parsonage is That this land so purchased is discharged of Tithes in the hands of the Abbot For the Tithes were suspended during the possession of the Abbot in his own hands But after that the Abby was surrendred into the hands of the King Anno 30. H. 8. And afterwards the same possessions c. were given to King H. 8. by the Statute of 31. H. 8. cap. 13. as they were in the hands of the Abbot The question was Whether the Land so purchased by the Abbot before the surrender were discharged of payment of Tithes by the Statute or not And the opinion of Mr. Plowden was That they were not discharged of Tithes by the Statute For that no lands are discharged by the Statute but such lands as were lawfully discharged in right by composition or other lawfull thing And the lands in this case were not discharged in right but suspended during the possession of the Abbot in his own hands And so hee said it is when the Land is purchased by one and the Parsonage by another the right of Tithes is revived and the lands charged as before the purchase of the Abbot And so he said it had been adjudged Pasc 17. Eliz. In the Common Pleas. 2. A Man makes a Lease for Life and afterwards makes a Lease unto another for Years to begin after the death of Tenant for life The Lessee for yeers dieth intestate The Ordinary commits Administration The Administrators and the Tenant for life joyn in the purchase of the Fee-simple Two questions were moved The first was Whether the Fee were executed in the Tenant for life for any part 2. Whether the Term were gone in part or in all And the opinion
Lord Dyer said So in the principall Case and therefore the later Use was utterly void and shall not be raised by intendment But otherwise it had been if it had been by devise Pasch 23. Eliz. in the Common Pleas. 10. IT was holden by all the Justices of the Common Pleas That the Queen might be put out of her Possession of an Advowson by two Usurpations And she shall be put to her Writ of Right of Advowson as a common person shall be because it is a transitory thing and that the Grant of that Advowson made by the Queen after the two Usurpations should be void and that was so adjudged upon a demurrer in the point And so it is holden in 47 E. 3. 4. b. Psch 23. Eliz. in the Common Pleas. 11. AN Indenture of Covenant was made betwixt I. S. and I. D. in which I. S. did Covenant to Enfeoffe I. D. of his Manor of D. In consideration of which I. D. by the same Indenture did Covenant with the said I. S. to pay him 100 li. The Question is If I. S. will not make the Feoffment whether I. D. be bound to pay the money It was holden by the Lord Dyer Chief Justice and Justice Mead That he is not because the money is Covenanted to be paid Executory to have the Feoffment made and therefore if he will not make the Feoffment he shall not have the money As if I Covenant with one That I will marry his Daughter and he Covenants with me That for the same cause he will make an Estate to me and his Daughter and to the Heirs of our two bodies begotten of his Manor of D he shall not make it untill we are married But if I Covenant with a man That I will marry his Daughter and he Covenants with me To make an Estate to me and his Daughter if I marry another woman or if the Daughter marryeth another man yet I shall have an Action of Covenant to compell him to make the Estate because in this later Case the Covenant was made for another Cause And this difference was so taken by the whole Court 15 H. 7. 10. So if A. grant to B. all the ancient Pale and for that B. grants That he will make a new Pale it is holden in 15. E. 4. 4. by Catesby and affirmed by Littleton That if B. cannot have the ancient Pale that he shall be excused from making the new Pale But if two things are given by two Persons one for the other there if one of them detain the one the other cannot detain the other as is 9 E. 4. 20. and 15 E. 4. 2. It is holden That if one grant Tithes in Fee by one Deed and by the same Deed for the same Grant the Grantee grant to the same Person an Annuity of 20 li That if the Grantor of the Tithes enter into the Tithes yet the Grantee cannot detaine the Annuity because the grant of the Tithes is executed in him and he may have an Action for them if the other enter upon them But in the principall Case The Covenant was but Executory for the other and then if one be not performed the other shall never be performed Windham and Periam Justices conceived the contrary and therefore the case was adjourned and a demurrer in law upon it Pasch 23 Eliz. in the Common Pleas. 12. TEnant in taile the Remainder in Fee the Tenant in taile makes a Lease for life according to the Statute of 32 H. 8. and afterwards dieth without issue and before any entrie he in the remainder grants his Remainder by Fine Whether the Conusee of the Fine may enter upon the Tenant for life and avoid his Lease was the question Fenner Serjeant Hee cannot because when a Free-hold is given by Livery it cannot be defeated without Entrie As If a Parson make a Lease for life rendring rent and dieth and his successor accept the rent the lease is affirmed as it is holden in 11. E. 3. and 18. E. 4. The Case was That a man made a Lease for life the remainder in Fee Tenant for life granted over his estate and then a Formedon was brought against the Grantee and then the first Tenant for life died And by all the Justices except Littleton and divers Serjeants the Writ shall not abate if he in the Remainder hath not entred So in the principall case When he had made a Lease for life and afterwards died without issue living the Tenant for life his estate is not defeated before entrie of him in the Remainder And then when before entrie he in the Remainder grants his Remainder the Grantee shall have it but as a Remainder for so is his grant and so the estate of Tenant for life which was but voidable is made good And so was it holden by Windham and Periam Justices but Meade and Dyer Chief Justice did conceive that by the death of Tenant in taile without issue his Lease made to him for life was void and not voidable because by the death of Tenant in tail his estate out of which the estate of the Tenant for life was derived is determined and therefore the estate for life is determined also Et cessante causâ cessat effectus And Meade compared it to the Case of 21. H. 7. 12 where it was holden That if a man do make a Lease for life upon condition that if he pay unto the Lessee ten pounds at such a day that his estate shall cease Now by the performance of the Condition the estate is determined without entrie Mich. 24. Eliz. In the Common Pleas. 13. POLES Case THomas Pole one of the Clerks of the Chancery married a woman who was Executrix to her Husband and in an Action of Debt brought against them in the Common Pleas the said Pole brought a writ of Priviledg to have removed the said Action into the Chancery And by all the Justices the Writ was disallowed and the defendants ruled to answer there because the Wife was joyned in the Action with the Husband and she could not have the priviledg and therefore not the Husband And so it is adjudged by the whole Court 34. H. 6. 29. and 35. H. 6. 3. But see 27. H. 8. 20. where the case was That a man brought an Action in the Common Pleas against Husband and at the pluries returned he and his Wife were arrested into an inferiour Court veniendo to Westminster and because the Husband hath priviledg therefore his Wife shall be in the same condition But Dyer said That the reason there was because the Wife came in aid of her Husband to follow his suit And therefore it is not like the principall Case at the Bar. Mich. 24. Eliz. in the Common Pleas. 14. IN Debt upon a Bond of Forty pound for the Payment of Twenty pound at a Day and Place certain The Defendant pleaded That he had paid the said Twenty pound according to the Condition upon which they are at Issue and at
agree in the Services Walmesley He shall have the traverse for the mischief which otherwise would follow for if he should traverse the seisin thereby he should confesse the Tenure Periam concessit and said That the difference which is commonly taken in our Books is That where they agree in the Tenure there the Seisin is traversable but where they do not agree in the Tenure there the Tenure is traversable So is 26. H. 8. 6. 7. E. 4. 27. 12. E. 4. 7. 20. E. 4. 16. And he conceived here that the payment at two dayes doth alter the tenure so as now it is another tenure then before Also he said That if Wh. acre and Bl. acre be adjoyning and are holden the one of I. S. and the other of I. D. and I. S. distrein and avow for both acres that he may well traverse the tenure Meade 8. H. 7. 5. a. It is said by Brian That if avowry be made for a tenure of two acres by twenty shillings and the Plaintiffe saith that he holdeth these two and two other acres by twelve shillings without that that he holdeth the two acres by twenty shillings that that is good for that he cannot do otherwise And it is no reason that for a false avowry the Plaintiffe should be at a mischief But the Book is not ruled for Keble is contrary Vide Librum Trinit 26 Eliz. in the Kings Bench. 35 SAVELL and CORDELL's Case HEnry Savell Lessee for years of the Manor of M. grants the same Manor Habendum for so many years which should be to come after his death to Cordell Master of the Rolls if Dorothy his Wife so long should live And afterward Henry Savell and he in the Reversion levied a Fine The Case went by many Conveyances further But two points were here moved 1. If it were a good Grant for so many yeers c. Shuttleworth argued that it was But Cooke contrary And Cooke said to that which hath been said That Leases which have uncertain beginning may be by act of matter ex post facto made certain and so good As a lease for so many years as I. S. shall name if he name it is a certain lease but if the Lessor die before I. S. name and after hee name all is void as it is in the Commentaries put by Weston and granted by Dyer 273. And the reason is that it behoves that the interest passe out of the Lessor during his life and the Deed ought to have its perfection in the life of the Lessor But in our case here the Lessor or Grantor is dead before the certaintie of the beginning is known and before any perfection of interest out of him and therefore the reason in the common case 40 Ass and 16. E. 3. that there behoveth to be Attornment in the life of the Lessor proves our case for the reason of that is that it behoveth that some interest passe out of the Lessor or Grantor during his life and that perfection of his Grant be in his life or else the Grant is void Vide 31. E. 3. alb 20. and 33. E. 3. Confirmation 22. If the Chapter confirm the Grant of the Bishop after his death it is void for it ought to have perfection in the life of the Bishop otherwise it is void And upon that reason is the case put by Popham Com. 520. b. That where a man grants all his term which shall be to come after his death that it is a void Grant because no interest passeth during the life of the Grantor And to this purpose is 7. E. 6. Br. Leases 66. Temps H. 8. 339. If a man will take by Livery within the view it behoves the Feoffee to enter during the life of the Feoffor and yet that is a more strong case for by the Livery being a ceremony of the Law it is presumed that the land passed and yet there ought to be an entry to fortifie the Grant otherwise it is void The second point was If by the Fine levyed the possibilitie aswell as the right of possession of the term did passe And I conceive that it doth therefore we see in many cases a man may grant by his Deed a possibility to come As 19. H. 7. 1. where a man seised in the right of his Wife made a Feoffment in see and after they had issue and the Wife died that he should not be Tenant by the Courtesie and yet the Wife was remitted but by his own Grant he had granted from him the possibility he might have had to be Tenant by the courtesie And here If Cordell had entered and made a Feoffment in fee or levied a Fine the possibility which he had to have the term had been cleerly gone 39. H. 6. 43. If I disseise my Eather and make a Feoffment in fee and afterwards my Father dieth although that a new Right descends unto me yet I shall be barred of this possibilitie which I had at the time of the Grant But otherwise it had been if this discontinuance or grant had been defeated by entry or otherwise in my life by my Father or any other in that case I may shew the speciall matter as 15. E. 4. 5. is and so avoid my own Deed. And 44. E. 3. 4. is That tenant for years and he in the Reversion disclaim and it is holden a good Disclaimer which proves that a possibility may also pass by Disclaimer And 21. E. 3. and 35. H. 6. is That if he who hath cause to have a Writ of Error if he enter into the Land and make a Feoffment the Writ of Error is gon for ever so by these Cases it is proved and appeareth That a Possibility may passe by grant And so in the Principall Case the Possibility to have the terme is by this Fine granted and the Grant is a good Grant And it was adjourned Pasch 26. Eliz. in the Kings Beneh 36. LUDDINGTON and AMNER'S Case Intratur Mich. 25. Eliz. Rott 495. IN a Writ of Error the Case was this Perepoynt possessed of a Lease for 99 years devised the same unto his Wife for Life and that after her Decease that it should go to his Children unpreferred the Wife took Sir Thomas Fulster to her Husband and the Lease was put in Execution by Fiery facias for the Debt of Sir Thomas Fulster and afterwards Sir Thomas died and the Wife died The Administrators of Sir Thomas Fulster did reverse the Judgement upon which the Lease was taken in Execution And afterwards A. the Daughter of Perepoynt entred supposing her selfe to be the only Daughter of Perepoynt alive unpreferred by her Father in his life time And the Pleading was That the Wife of Perepoynt was his Executrix and that she entred into the Lease after the death of Perepoynt Virtute legationis donationis praedict Cook There is a difference in our Books That the Devise of the Occupation of a Term may be with the Remainder over but not a Devise
in tail may have a Formedon against the Bishop But in our Case it is otherwise Tenant in tail maketh a Feoffment and takes back an estate unto himself in tail the remainder in Fee to his right heirs The Bishop in such case shall not have the land forfeited for Treason because that the Bishop cannot have the estate tail but in such case the King shall have the Land by the Statute of 26 H. 8. cap. 13. And the Bishop in such case shall not have the Fee because it is one estate and the King shall not wait upon the Subject viz the Bishop The Right waits upon the possession For 11 H. 7. 12. If the son and a stranger disseiseth the father and the father dyeth this right infuseth it self into the possession and changeth the possession And it is a Release in fact by the father to the son 9 H. 7. 25. Br ' Droit 57. A Disseisor dyeth seised and his heir enters and is disseised by A. The first Disseisee doth release unto A. all his right All the right is now in the second Disseisor viz. A. because the right and the possession meet together in A. 40 E. 3. 18. b. Tenant in tail makes a Lease for life with warranty If Tenant for life be impleaded by the heir to whom the warranty doth discend he shall rebut the right in tail being annexed with the possession for that is in case of a saving of the land by that right But where one demands land there all the Right ought to be shewed 11 H. 4 37. If a man be to bring an Action to recover then he ought to make a good title by his best right if he hath many rights But if a man be in possession and an Action be brought against him then he may defend himself by any of his rights or by all his rights 11 H. 7. 21. Tenant in tail maketh a Feoffment to his use upon Condition and afterwards upon his Recognisance the land is extended and afterwards the Condition is performed yet the interest of the Conusee shall not be avoided For although the Extent come upon the Fee and not upon the Tail yet when the Extent was it was extracted out of all the rights C. 7. part 41. A Tenant in tail makes a Lease for life now he hath gained a new Fee by wrong and afterwards he makes a Lease for years and Tenant for life dyeth He shall not avoid his Lease for years although he be in of another estate because he had a defeicible title and an ancient right the which if they were in several hands shall be good as the Lease of the one and the Confirmation of the other And being in one hand it shall be as much in Law as a saving of the Right In our Case the Right and Possession both were in Francis Bigot And Ratcliffe is entitled to the old estate tail and to the new also There is a difference betwixt him who claims the land so forfeited to the King and the heir of the body of the person attainted Littâ—719 Land is given to A and the issue males of his body the remainder to the heirs females of his body If the Father commit Treason both heir male and female are barred for they both claim by the Father but if the heir male after the death of his Father be attainted of Treason the King shall have the lands as long as he hath issue male of his body and then the heir female shall have the lands for she shall not forfeit them because she claimeth not by the brother but by the father Com. in Manxels case A man hath three several rights of estate tails and comes in as Vouchee If the Recovery pass it shall bar all his Rights for one Recompence and they shall be all bound by one possession There is a difference where the Kings title is by Conveyance of the party and where for forfeiture for Treason by this Statute of 26 H. 8. cap. 13. v. the Abbot of Colchesters Case The Abbot seised in the right of his house did commit Treason and made a Lease for years and then surrendred his house to the King after the Statute of 26 H. 8. The question was whether the King should avoid the Lease It was adjudged That the King was in by the surrender and should not avoid the Lease and not by the Statute of 26 H. 8. But if the King had had it by force of the Statute then the King should have avoided the Lease Com. 560. Tenant in tail the reversion to the King Tenant in tail maketh a Lease for years and is attainted of Treason The King shall avoid the Lease upon the construction of the Statute of 26 H. 8. which gives the lands unto the King for ever The third point is upon the Remitter This point had been argued by way of Admittance For as I have argued The ancient right is given away unto the King and then there is no ancient right and so no Remitter There is a difference where the issue in tail is forced to make a Title and where not In point of defence he is not so precisely forced to make his Title as he is in case of demand Whereas the Defendant demands the lands from the King the Discent will not help him because the Attaindor of the Ancestor of Ratcliffe hinders him in point of title to make a demand Dyer 332 b. In this case he ought to make himself heir of the body of Francis Bigot and Katharine C. 8. part 72. C. 9. part 139 140. There Cook couples the Case of Fine levied and the Case of Attaindor together C. 8. part 72. Land is given to husband and wife and to the heirs of their two bodies The husband alone levies a Fine with proclamations Or is attainted of Treason and dyeth The wife before Entry dyeth The issue is barred and the Conusee or King hath right unto the land because the issue cannot claim as heir to them both viz. father and mother for by the father he is barred 5 H. 7. 32 33. C. 9. part 140. Husband and wife Tenants in tail If one of them be attainted of Treason as it was in our Case the lands shall not discend to the issue because he cannot make title And there Cook puts the Case That if lands be given to an Alien and his wife they have a good estate tail and yet it is not discendable to the issue The Consequence then of all this is That if Ratcliffe cannot take advantage of the discent by reason of the disability by Attaindor à fortiori he shall not be remitted And yet I confess that in some Cases one may be remitted against the King Com. 488 489 553. But that is where the King is in by matter of Law by Conveyance but in this Case the King is in by an Act of Parliament and there shall be no Remitter against a matter of Record Another reason is because that
Cestuy que use when he entreth and maketh a Lease he hath no reversion nor shall punish waste And as it is in the Creation so is it in the Continuance 4 H. 7. 18. If Cestuy que use for life or in tail maketh a Lease for life it is warranted during his own life by the Statute of 1 R. 3. but if Tenant for life at the Common Law maketh a Feoffment or a lease for life there the first Lessor ought to avoid this forfeiture by entrie and it is not void by the death of the second Lessor viz. the Tenant for life 27 H. 8. 23. A Feme Covers is Cestuy que use the husband maketh a Feoffment and dieth the Feoffment is void by his death Br. Feoffments to Uses 48. If Cestuy que use for life levieth a fine it is no forfeiture but good by the Statute of 1 R. 3. during his own life And if in such case Proclamations pass there needeth no claim nor entrie within five years but the Law is contrarie of Tenant for life by the Common Law for if Tenant for life at the Common Law levieth a fine it is a forfeiture Dyer 57. Cestuy que use for life or in tail maketh a Lease for life the Lease is determined by the death of Cestuy que use and the Lessee is become Tenant at sufferance but a Lease for life by Tenant for life at the Common Law is not determined by the death of Lessee for life who was Lessor and his Tenant is tenant for life and not at sufferance as in the Case before and the first Lessor ought to avoid it by entrie Br. Feoffments to Uses 48. A Recovery by Cestuy que use in tail or in fee is ended by his death By these Cases appears a main difference betwixt the validitie of a Feoffment by Cestuy que use and the Feoffment at the Common Law The Statute of 27 H. 8. of Uses doth not execute Uses which are in abeyance C. 1. part Chudleigh's Case 9 H. 6. by the Common Law the Devise to an Enfant in ventre samier is good but by the Statutes of 32 and 34 H. 8. of Wills such a Devise is not good for the Statute Law doth not provide for the putting of lands in abeyance By the Statute of 1 R. 3. All Feoffments and Releases c. shall be good and effectual to those to whom they are made to their uses And this Feoffment in our Case was not made to a man in Nubibus Cestuy que use by this Statute of 1 R. 3. makes a lease for years the remainder over to the right heirs of I. S. the remainder is not good for the Statute doth not put it in abeyance for the remainder ought to be limited to one in esse 21 H. 8. cap. 4. giveth power to Executors to sell that Executor who proveth the Will shall sell and when he selleth if he have any right to the land the right of the said Executor is not gone by that Statute So if Commissioners upon the Statute of Bankrupts sell the Lands of the Bankrupt and one of the Commissioners hath right to the land so sold his right is not extinct And so in this Case the Statute limits what shall pass Upon the Statute of â—3 Eliz. cap. 4. which makes the lands of Receivers liable for their debts if the King selleth the right of the Accomptant passeth but not the Kings right 17 E. 3. 60. An Abbot having occasion to go beyond the Seas made another Abbot his Procurator to present to such Benefices which became void in his absence That Abbot presents in the name of him who made him Procurator to one of his own Advowsons the right of his own Advowson doth not pass but yet it is an usurpation of the Abbot which went beyond sea to that Church What is the nature of this right All rights are not giâ—en away by Feoffments at the Common Law Lit. 672. Land is given unto husband and wife in tail the husband maketh a Feoffment and takes back an Estate to him and his wife both of them are remitted Which Case proveth that the husband hath left in himself a right notwithstanding the Feoffment 41 E. 3. 17. 41 Ass 1. John at Lee's Case So at the Common Law a Feoffment doth not give away all the right This right doth stick so fast in the issue as the Statute of West 2. cap. 1. can back it unto him 2 E. 3. 23. 22 E. 3. 18. At the Common Law if Tenant in tail had offered to levie a fine the Judges ought not to receive it but ought to have refused it if it had appeared unto them that the Conusor was Tenant in tail the same was before the Statute of 4 H. 7. which gave power to Tenant in tail to levie a fine for the Statute of West 2. Cap. 1. saies Quod finis sit nullus 2. E. 2. age 77. 2 E. 3. 33. 3 E. 3. 1. 24 E 3. 25. If Donee in tail levieâ—h a Fine yet there is no remedie against his Tenant for he shall not be compelled to attorn for that the right is in the Donor â— E. 2. Avowry 181. 48 E. 3. 8. Avowry was made upon the Donee in tail notwithstanding that he made a Feoffment and Avowry is in the realtie and right 4 E. 3. 4. 4 H. 6. 28. 10 H. 7. 14. In a Replevin ancient Demesne is a good plea because the Avowry is in the realtie The Donor shall know for homage upon the Donee after that the Donee hath made a Feoffment 7 E. 4. 28. the Donee shall do homage And Litt. 90. saith That none shall do homage but such as is seised in his own right or in the right of another 2 E. 2. Avowry 85. 7 E 54. 28. 15 E. 4. 15 Gard. 116. the issue shall be in Ward notwithstanding a Feoffment by Tenant in tail Com. 561. Tenant in tail maketh a Feoffment yet the right of the tail doth remain in the Tenant in tail 21 H. 7. 40. Tenant in tail of a Rent grants the same in Fee if an Ancestor collateral releaseth with Warranty the same bindeth the Tenant in tail There is a common Rule That a Warranty doth not bind when a man hath not a right The Cases cited in C. 1. part Albonies Case where Feoffments give Rights I agree Barton and Ewers Case A man made a Feoffment of Land of which he had cause to have a Writ of Error he gave away his Writ of Error by the Feoffment I agree all those Cases for that is in Cases of Feoffments at the Common Law but in our Case the Feoffment is by the Statute of 1 R. 3. In our Case there is Jus habendi possedendi recuperandi It is like unto a plant in Winter which seemeth to be dead yet there is in it anima vegitativa which in due time brings forth fruit So the right in our Case is not given away nor is it in abeyance
is in the wife but the cause thereof is because it was once coupled with a possession C. 7. part Nevils Case There was a question whether an Earldom might be entailed and forfeited for Treason which is a thing which he hath not in possession nor use but is inherent in the blood And there resolved that the same cannot be forfeited as to be transferred to the King but it is forfeited by way of discharge and exoneration 12 Eliz. Dyer the Bishop of Durhams Case There if it had not been for the saving the Regal Jurisdiction of the Bishop had been given to the King by the Statute of 26 H. 8. This Statute of 26 H. 8. was made for the dread of the Traitor For the times past saw how dangerous Traitors were who did not regard their lives so as their lands might discend to their issue It was then desperate for the King Prince and Subject For the time to come it was worse The Law doth not presume that a man would commit so horrid an act as Treason so it was cited by Mr. Crook who cited the case That the King cannot grant the goods and lands of one when he shall be attainted of Treason because the Law doth not presume that he will commit Treason If the Law will not presume it wherefore then were the Statutes made against it If the Land be forfeited by the Statute of 26 H. 8. much stronger is it by the Statute of 31 H. 8. But then admit there were a Remitter in the Case yet by the Office found the same is defeated Without Office the Right is in the King Com. 486. c. 5. part 52 where it is said There are two manner of Offices the one which vests the estate and possession of the Land c. in the King where he had but a Right as in the case of Attaindor the Right is in the King by the Act of Parliament and relates by the Office Com. 488. That an Office doth relate 38 E. 3. 31. The King shall have the mean profits The Office found was found in 33 Eliz. and the same is to put the King in by the force of the Attaindor which was 29 H. 8. and so the same devests the Remitter Tenant in tail levieth a Fine and disseiseth the Conusee and dyeth the issue is remitted then proclamations pass now the Fine doth devest the Remitter C. 1. part 47 Tenant in tail suffereth a common Recovery and dyeth before Execution the issue entreth and then Execution is sued the Estate tail is devested by the Execution and so here in our Case it is by the Office C. 7. part 8. Tenant in tail maketh a Lease and dyeth his wife priviment ensient without issue the Donor entreth the Lease is avoided afterwards a Son is born the Lease is revived Com. 488. Tenant in capite makes a Lease for life rendring rent and for non-payment a re-entry and dyeth the rent is behind the heir entreth for non-payment of the rent and afterwards Office is found of the dying seised and that the land is hoâ—den in capite and that the heir was within age In the case the Entry for the Condition broken was revived and the Estate for life revived 3 E. 4. 25. A Disseisor is attainted of Felony the Land is holden of the Crown the Disseisee entreth into the Land and afterwards Office is found that the Disseisor was seised the Remitter is taken out of the Disseisee which is a stronger case then our Case for there was a right of Entire and in our Case it is but a right of Action which is not so strong against the King And for these Causes he concluded That the Judgment given in the Court of Pleas ought to be reversed And so prayed Judgment for the Lord of Sheffield Plaintiffe in the Writ of Error This great Case came afterwards to be argued by all the Judges of England And upon the Argument of the Case the Court was divided in opinions as many having argued for the Defendant Ratcliffe as for the Plaintiffe But then one new Judge being made viz. Sir Henry Yelverton who was before the Kings Sollicitor his opinion and argument swayed the even ballance before and made the opinion the greater for his side which he argued for which was for the Plaintiffe the Lord Sheffield And thereupon Judgment was afterwards given That the Judgment given in the Court of Pleas should be reversed and was reversed accordingly And the Earl Lord Sheffield now Earl of Mulgrave holdeth the said Castle and Mannor of Mulgrave at this day according to the said Judgment Note I have not set here the Arguments of the Judges because they contained nothing almost but what was before in this Case said by the Councel who argued the Case at the Bar. Pasch 21 Jacobi in the Kings Bench. 418. IT was the opinion of Ley Chief Justice Chamberlain and Dodderidge Justices That a Defendants Answer in an English Court is a good Evidence to be given to a Jury against the defendant himself but it is no good Evidence against other parties If an Action be brought against two and at the Assises the Plaintiffe proceeds only against one of them in that case he against whom the Plaintiffe did surcease his suit may be allowed a Witnesse in the Cause And the Judges said That if the Defendants Answer be read to the Jury it is not binding to the Jury and it may be read to them by assent of the parties And it was further said by the Court That if the party cannot find a Witnesse then he is as it were dead unto him And his Deposition in an English Court in a Cause betwixt the same parties Plaintiffe and Defendant may be allowed to be read to the Jury so as the party make oath that he did his endeavour to find his Witnesse but that he could not see him nor hear of him Pasch 21 Iacobi in the Kings Bench. 419. THe Husband a wife seised of Lands in the right of the wife levied a Fine unto the use of themselves for their lives and afterwards to the use of the heirs of the wife Proviso that it shall and may be lawfull to and for the husband and wife at any time during their lives to make Leases for 21 years or 3 lives The wife being Covert made a Lease for 21 years And it was adjudged a good Lease against the husband although it was made when she was a Feme Covert and although it was made by her alone by reason of the Proviso Pasch 21 Jacobi in the Common-Pleas 420. NOte that Hobart Chief Justice said That it was adjudged Mich. 15 Jacobi in the Common-Pleas That in an Action of Debt brought upon a Contract the Defendant cannot wage his Law for part and confesse the Action for the other part And it was also said That so it was adjudged in Tart's Case upon a Shop-book And vide 24 H. 8. Br. Contract 35. A Contract cannot be divided
afterward the Husband suffers the wood to grow five and twenty yeers and afterwards hee dieth The question was Whether the Wife being Tenant for life might cut that Underwood And it was moved What shall be said seasonable Underwood that a Termor or Tenant for life might cut Dyer Chief Justice and all the other Justices held That a Termor or Tenant for life might cut all Underwood which had been usually cut within twenty yeers In 11. H. 6. 1. Issue was taken If they were of the age of twenty yeers or no. But in the Wood-Countries they may fell seasonable wood which is called Sylva caedua at six and twenty eight and twenty thirty years by the custome of the Country And so the Usage makes the Law in severall Countries And so it is holden in the books of 11. H. 6. and 4. E. 6. But they agreed That the cutting of Oakes of the age of eight yeers or ten years is Waste But by Meade Justice the cutting of Hornbeams Hasels Willows or Sallows of the age of forty yeares is no Waste because at no time they will be Timber Another question which was moved was That at the time of the Feoffment it was seasonable Wood and but of the growth of fourteen or fifteen yeers If this suffering of the Husband of it to grow to 25 years during the Coverture should bind the Wife so as she cannot cut the Woods Gaudy Serjeant said That it should not bind the Wife For if a Warranty descend upon a Feme Covert it shall not bind her So if a man seized of Land in the Right of his Wife be disseised and a Descent be cast during the Coverture it shall not bind the Wife but that she may enter after the death of the Husband But by Dyer Chief Justice and all the other Justices This Permission of the Husband shall bind the Wife notwithstanding the Coverture for that the time is limited by the Law which cannot be altered if it be not the custome of the Country As in the case of 17. E. 3. Where a man makes a Lease for years and grants that the Lessee shall have as great commoditie of the Land as hee might have Notwithstanding these words he cannot dig the land for a Mine of Cole or Stone because that the Law forbids him to dig the land So in the principall Case The Wife cannot fell the Wood notwithstanding that at the time of her estate she might and afterwards by the permission of the Husband during the coverture the time is incurred so as she cannot fell it because the Law doth appoint a time which if it be not felled before such time that it shall not be felled by a Termor or a Tenant for life but it shall be Waste Hill 23. Eliz. In the Common Pleas. 7. A Man makes a Lease of a Garden containing three Roodes of Land and the Lessee is ousted and he brings an Ejectione firme and declares that he was ejected of three Roods of Land Rodes Serjeant moved That by this Declaration it shall be intended that he was ejected of the Garden of which the Lease was made and so the Ejectione firme would lie And it was holden by the Lord Chief Justice Dyer That a Garden is a thing which ought to be demanded by the same name in all Precipes as the Register and Fitz. N. Brevium is And this Action is greater then an Action of Trespasse because by Recovery in this Action he shall be put into Possession But Meade and Windham Justices contrary And they agreed that in all reall Actions a Garden shall be demanded by the name Gardinum otherwise not But this Action of Ejectione firme is in the nature of Trespasse and it is in the Election of the Party to declare as here he doth or for to declare of the Ejectment of a Garden for a Garden may be used at one time for a Garden and at another time be ploughed and sowed with Corn. But they conceived that the better order of pleading had been if he had declared that he was ejected of a Garden containing three Roodes of Land as in the Lease it is specified Hill 23. Eliz. In the Common Pleas. 8. SErgeant Fenner moved this case That Land is given to the Wife in tail for her Joynture according to the Statute of 11. H. 7. The Husband dieth the Wife accepts a fine Sur conusans de droit come ceo c. of a Stranger And by the same fine grants and renders the Land to him for an Hundred years whether this acceptance of a Fine and Render by the Wife were a forfeiture of her estate so as he in the Reversion or Remainder might enter by the Statute Mead and Dyer Justices it is a forfeiture and Mead resembled it to the Case in 1 H. 7. 12. where it is holden That if Tenant for life do accept of a Fine Sur conusans de droit come ceo c. that it is a forfeiture and the Lessor may enter But Fenner asked their opinions what they thought of the principall case But haesitavernut because they said it was a dangerous case and is done to defraud the Statute of 11. H. 7. Pasch 23. Eliz. in the Common Pleas. 9. A Man made a Feoffment in Fee to two to the use of himself and his wife for the term of their lives without impeachment of waste during the life of the Husband the remainder after their decease to the use of I. his son for the term of his life And further by the same Deed Vult concedit that after their three lives viz. of the Husband Wife and Son that I. S. and I. D. two other Feoffees shall be seized of the same Land to them and their heirs to the use of the right Heirs of the body of the Son begotten It was moved That by this deed the two later Feoffees should be seized to the use of the right Heirs of the body of the Son begotten after the death of the Husband Wife and the Son But it was holden by all the Justices That the second Feoffees had not the Fee because by the first part of the Deed the Fee-Simple was given to the first Feoffees and one Fee-Simple cannot depend upon another Fee-Simple Notwithstanding that after the determination of the former uses for life the Fee-Simple should be vested again in the Heires of the Feoffer and that the words That the second Feoffees should be seized should be void But Dyer Chief Justice and the other Justices were against that because there wanted apt words to raise the later use As if a man bargain and sell his Reversion of Tenant for Life by words of Bargain and Sale only and the Deed is not Enrolled within the six months but afterwards the Tenant for Life doth attorne yet notwithstanding that the Reversion shall not passe because Bargain and Sell are not apt words to make a Grant And that Case was so adjudged in the Common Pleas as the
any remedy in this Court. Also he saith That he hath paid but doth not shew where and the other may say nâ—n solvit and so an issue shall be and no place from whence the Visne shall come Godfrey contrary If one be a lay man and the other a spirituall man then the tryall shall be at the common Law as it is holden 31. H 6. and 2. E. 4. And the defendant here is a lay man who makes prescription of a Modus decimandi for the discharge of Tithes in kind As to that which Cook said That he prescribes that he hath used to pay to the Parson and doth not say That it was due to the Parson and if he pay the Vicars Tithes to the Parson he doth wrong to the Vicar He saith That he hath paid and used to pay 4d. to the Parson in full satisfaction c. and reddâ—ndo singula singâ—lis it is good enough As to the doublenesse or repugnancy of the Prescription he said That the prescription is set forth according to the truth of the matter As to the place for that no issue can be taken upon it he answered That he conceived the issue will bee upon the Custome or Modus decimandi And Gawdy Justice agreed to that Suit Justice There is no Modus decimandi alledged for when he saith That he hath paid to the Parson that which the Vicar demands that is no answer Gaudâ— Justice The prescription is repugnant as Cook said and he said That the herbage is for all Kine as well for those which have Calves as those which have not No Prohibition granted Mich. 28 29. Eliz. in the Kings Bench. 64. WINDSMORE and HULBORD's Case THe Case was this A man gave lands to J. S. Habendum to him and to three other for their lives â—t eorum diutius viventi successivè The question was What estate J. S. had and if after his life there were any occupancy in the Case Cooke That J. S. had an estate but for his life onely because he cannot have an estate for his life and for the life of another where the interest commenceth both in praesenti but he may have an estate for his own life in present interest and the remainder thereof for anothers life But this Habendum by no means can create a Remainder And he said that as a Lease to one for life Habendum to him primogâ—nito filio suo was no Remainder primogenito filio although some held to the contrary So a Lease for years Habendum to him and to another was no Remainder to the other Also the word successivè doth not make a Remainder as 30. H. 8. Br. Joynâ—ts 53. where a Lease for life to three or for yeers to three Habendum successivè yet they have a joynt estate and successivè is void for he said It is uncertain who shall have it first and who secondly Also one cannot have an estate for his own life and for the life of another at the same time in present interest for the greater will drown the lesser But if the greater be in praesenti and the lesse in futuro as a lease for his own life the Remainder to him for another mans life it is otherwise As a lease for his own life the Remainder for yeers is good But if I make a lease to you for your own life and 100 years both to begin at the same time the Lease for yeers is drowned and an estate for his own life is greater then an estate for anothers life and shall drown the estate for anothers life Vide 19. E. 3. Surr. 8. where Tenant for life of a Manor did surrender to Tenant for life in Reversion And 12. H. 7. 11. and Perkins 113. That if there be a Lease for life to one the Remainder to another for life and the Lessee for life doth surrender to him in the Remainder it is good So Dyers Reports A lease is made to one for the term of another mans life without impeachment of Waste the Remainder to him for his own life he is now punishable for waste for the first estate is surrendred Gaudy Justice If a lease be made to one for his life and so long as another man shall live quaere what estate he hath 2. If there can be any Occupancy in the Case for if the estate be void the limitation upon the estate is void therefore if the estate for the other mans life be drowned in the estate for his own life that can be no Occupancy Also the Occupancy is pleaded That such a one entred and doth not say claiming as occupant For if one come hawking upon the land he shall not by such entry be an Occupant and in the book of Entries it is pleaded that he entred clayming as Occupant Clenche Justice Every Occupancy ought to be in possession for otherwise the Law casts the interest of it upon him in the Reversion But Gaudy and Suit Justices were utterly against him in that for then they said there should be no occupancy if the party were not in by Lease or such like means Mich. 28 29. Eliz. in the Kings Bench. 65. DIKE and DUNSTON'S Case IN an Action of Trespasse brought the defendant did justifie as Lessee to the Lord Mountagu and said that the Lord Mountagu for him and his Farmors had used to have a way over the land in which the trespass is supposed to be done And that by rooting of a cart wheel the way was so digged and drowned that he could not so wel use his way as before and that therefore he did fill up the cart roots and digged a trench to let out the water upon which the plaintiffe did demur in law For 15. H. 7. is that a Commoner cannot meddle with the soil so is 12. 13. H. 8. So he who hath Warren in the land of another man cannot meddle with the soile and as to that that he could not use his way so well as before it is not good for he ought to have said That he could not use his way at all otherwise the plea is not good As 6. E. 4. One is to lop his tree and he cannot do it unless it fall upon the Land of another there he may well justifie the felling of it upon the others Land because otherwise he could not lop it at all So if I give to one all the fish in my Pond he cannot dig a Trench to draw out the water unlesse he cannot otherwise take the fish as with Nets c. Also he justifies by reason that the Lord Mountagu for him and his Farmors c. And he was a Lessee and paid no rent therefore no Farmor Cowper contrary He shall not have an Action of Trespass for it is no losse or hinderance unto him but it is for his profit for the Land is the worse being drowned with water If a man do disseise me and fells trees upon the Land and doth repair the houses in an
which implyes an Affirmative which yet seems to be repugnant to a Negative as in 21. H. 6. 19. In a Writ of Entrie the Defendant pleaded the deed of the Demandant after the darrein Continuance The Demandant said It was not his deed after the darrein Continuance And that was holden a Negative pregnans wherefore he was compelled to plead and say he made it by dures before the darrein Continuance such a day absque hoc that he made it after the darrein continuance and then Issue was taken upon it The same Case is in 5. H 7. 7. But there it is said That in Debt upon a Bond to perform an Arbitrement Non fecerunt Arbitrementum per diem is no Negative pregnans The same Law that non deliberavit arbitrium in Script 38. H 6. in Formedon Ne dona pas in taile is a Negative pregnans Vide 39 H. 6. The Case of the Dean and Chapter The second Exception was That he hath pleaded neque such nor such nor such had disturbed him by any indirect means but onely by due course of Law And that cannot be tryed neither by Jury nor by the Judges Not by the Jury because it is not to be put to them whether they had disturbed him by indirect means or by due course of Law for they shall not take upon them the construction What is an indirect means and what is the due course of Law for it appertaineth to the Justices to adjudg that Not by the Judges because hee hath not put it certain that it was a due course of Law by which he disturbed him As 22. E. 4. 40. In Debt upon a Bond the Defendant saith that it is upon condition That if the Defendant or any for him came to Bristow such a day and there shewed to the Plaintiff or his Councell a sufficient Discharge of an Annuity of forty shillings per annum which the Plaintiff claims out of two Messuages of the Defendant in D that then c. The Defendant said that A. and B. by the assignement of the Defendant came the same day to Bristow and tendered to shew to N and W. of the Plaintiffs Councell a sufficient Discharge of the Annuity and that they did refuse to see it and demanded judgment of the Action The Plaintiff did demur upon the Plea And after a long argument it was adjudged by all the Justices to be no Plea c. because it lay in the judgment of the Court to judg of it and he did not shew in certain what discharge he tendered as a Release Unitie of possession c. If a man be bound to plead a sufficient plea before such a day in Debt upon such a Bond it is no plea to say That he hath pleaded a sufficient plea before the day but hee ought to shew what plea he hath pleaded For the Court cannot tell whether it be a sufficient plea or not if it do not appear what manner of plea it is 35 H. 6. 19. The Condition of a Bond was That where the Plaintiff was indebted to J. S. in one hundred pounds If the Defendant acquit and discharge the Plaintiffe that then c. The Defendant pleaded That hee had discharged him c. and the Plaintiffe did demurre upon the plea because hee did not shew how and it was holden no good plea. So 38. H. 8. Br. Condition 16. per curiam in the Kings Bench where a man pleaded That he had saved him harmlesse it was no Plea without shewing how because he pleaded in the Affirmative contrary if he had pleaded in the Negative as Non damnificatus est Suit and Clenche Justices said That if he had pleaded That he was not disturbed by any indirect means it had been good enough Gaudy If he had said That he was not disturbed contra formam conditionis praedict ' it had been good as upon a pleading of a Statute Ne entra pas contra formam Statuti Clench If I be bound to suffer I. S. to have my house but not I. D. I ought to answer That I have suffered the one and not the other to have it Suit Justice They are both severall issues and one shall not be repugnant to the other Mich. 28 29 Eliz. In the Kings Bench. 75 STURGIE'S Case A Case was moved upon the Statute of 5. Eliz. Cap. 14. The Case as I conceive was thus Grandfather Father and Daughter Land descended from the Grandfather to the Father who made a Lease for one hundred years the Father died and the Daughter forged a Will of the Grandfather by which he gave the Land to the Father for life the Remainder to the Daughter in Fee and the same was forged to have avoided an Execution of a Statute Staple the Lease being defeated and if it were within the Statute of 5. Eliz. was the question Solicitor That it was within the statute and within the first Branch viz. If any shall forge any deed c. to the intent that the Estate of Free-hold or Inheritance of any person c. in or to any Lands Tenements or Hereditaments Freehold or Copyhold or the right Title or Interest of any c. of in or to the same or any of them shall or may be molested c. Lessee for years hath a Title hath an Interest hath a right therefore within the words of the Statute and those words shall be referred to the words Lands Tenements c. But Cook said They shall be referred to the words precedent viz. Estate of Freehold or Inheritance and then a Lease for years is not within them Also by the Solicitor A Testament in writing is within the words of the Statute and therefore he recited a clause in the end of the Statute viz. and if any person plead publish or shew forth c. to the intent to have or claime thereby any Estate of Inheritance Freehold or Lease for years And also he said a Statute Staple is an estate for years although it be not a Lease for years because it is not certain Cook If she should be within both branches then she should be twice punished which Law will not suffer And the Statute is whereby any Estate for years shall be claimed and she would not claim but defeat an Estate for years and a Statute Staple is not a Lease for years and the Statute is not to be taken by Equity because it is a Penall Law Solicitor When the Statute is extended then it is an Estate for years although it be uncertain If a man forge a Lease for years it is directly within the Statute But if a man have a Lease and another is forged to defeat it it is a question whether it be within the Statute And all the doubt of this Case is upon the reference of these words Right Title Interest And it was adjourned Mich. 28 29. Eliz. in the Kings Bench. 76 THE Vicar of Pancras Case was argued again by Godfrey And he said That no Plea shall be
haeredes de corpore and we are not to devise a new form in such case but it is sufficient to shew the speciall matter to the Court. Also the words of the Writ are true for they are Heirs to Sir Roger Lewknor and the count is sufficient pursuant and agreeing to their Writ for they are Heirs although they are not speciall Heirs of the body and so the Court was of opinion that the Writ was good notwithstanding that Exception And Anderson and Periam Justices said That the case is not to be compared to the case in F. Nat. Br. 57. c. for there he cannot shew by whose Demise the Tenant holdeth if he doth not shew the speciall conveyance viz. that the land was given to the Husband and Wife and the Heirs of the body of the Wife Nor is it like unto the case of 26. H. â— 6. for the same cause for alwayes the demise of the Tenant ought to be especially shewed and certainly which it cannot be in these two cases but by the disclosing of the Title also to the Reversion Another Exception was taken because that the Writ doth suppose quod tenuerunt which as they conceived is to be meant that tenuerunt joyntly whereas in truth they were Tenants in common Walmesley contrary because there is not any other form of Writ for there is not any Writ which doth contain two Tenuerunts And the words of the Writ are true quod tenuerunt although tenuerunt in Common But although they were not true yet because there is no other form of Writ it is good enough As Littleton If a lease be made for half a year and the Lessee doth waste yet the Writ shall suppose quod tenet ad terminum annorum and the count shall be speciall 40. Ed. 3. 41. E. 3. 18. If the Lessee doth commit waste and granteth over his term the Writ shall be brought against the Grantor and shall suppose quod tenet and yet in truth he doth not hold the Land 44. Ed. 3. and Fitz. If one make divers leases of divers lands and the Lessee doth waste in them all the Lessor shall have one Writ of waste supposing quod tenet and the Writ shall not contain two Tenets And such was also the opinion of the Court The third Exception was because that the Writ was brought by the two coparceners and the Heir of the third coparcener without naming of the Tenant by the Courtesie And thereupon Snagg cited the Case of 4. Ed. 3. That where a Lease is made for life the Remainder for life and the tenant for life doth waste he in the Reversion cannot have an Action of waste during the life of him in the Remainder So in this case the Heir of the third coparcener cannot have waste because the mean estate for life is in the Tenant by the courtesie And to prove that the Tenant by the courtesie ought to joyn he cited 3. E. 3. which he had seen in the Book it self at large where the Reversion of a tenant in Dower was granted to the Husband and to the Heirs of the Husband and the tenant in Dower did waste and they did joyn in an Action of waste and not good And so is 17. E. 3. 37. F. N. B. 59. f. and 22. H. 6. 25. a. Walmesley contrary for here in our case there is nothing to be recovered by the tenant by the courtesie for he cannot recover damages because the disinheresin is not to him and the term is expired and therefore no place wasted is to be recovered and therefore it is not like unto the Books which have been cited for in all those the tenant was in possession and the place wasted was to be recovered which ought to go to both according to their estates in reversion But it is not so here for in as much as the term is expired the land is in the tenant by the courtesie and so he hath no cause to complain And such also was the opinion of the whole Court viz. that because the term was ended that the Writ was good notwithstanding the said Exception Then concerning the principall matter in Law which was Whether the Writ were well brought against the second Lessee or whether it ought to have been brought against the first Lessee It was argued by Shuttleworth that it ought to have been brought against the first Lessee for when he granted over his term excepting the trees the Exception was good Ergo c. For when the Land upon which the trees are growing is leased out to another the trees passe with the Lease as well as the Land and the property of them is in the Lessee during the term and therefore when he grants his term hee may well except the trees as well as the first Lessor might have done And that is proved by the Statute of Marlebridge Cap. 23. for before that Statute the Lessee was not punishable for cutting downe the trees and that Statute doth not alter the properties of the trees but onely that the Lessee shall render damages if he cut them down c. Also the words of the Writ of Wast proveth the same which are viz. in terris domibus c. sibi dimissis Also the Lessee might have cut them down for reparations c. and for fire-wood if there were not sufficient underwoods which he could not have done if the trees had been excepted And in 23. H 8. in Brooke It is holden that the excepting of the trees is the excepting of the Soile And so is 46. E. 3. 22. Where one made a Lease excepting the woods and afterwards the Lessee did cut them down and the Lessor brought an Action of Trespasse quare vi armis clausum fregit c. and it was good notwithstanding that Exception was taken to it And it is holden in 12. E. 4. 8. by Fairfax and Littieton That if the Lessee cut the trees that the Lessor cannot carry them away but he is put to his Action of Waste Fenner and Walmesley Serjeants contrary and they conceived that the Lessee hath but a speciall property in the trees viz. for fire-boot plough-boot house-boot c. And if he passe over the Lands unto another that he cannot reserve unto himselfe that speciall property in the trees no more then he who hath common appendant can grant the principall excepting and reserving the Common or grant the Land excepting the foldage The grand property of the trees doth remain in the Lessor and it is proved by 10. H. 7. 30. and 27. H. 8 13. c. If Tenant for life and he in the reversion joyne in a Lease and the Lessee doth wast they shall joyne in an Action of Wast and Tenant for life shall recover the Free-hold and the first Lessor the damages which proves that the property of the trees is in him As to that that he was dispunishable at the common law that was the folly of the Lessor and although it was so at the
afterwards he granted the Reversion for eighty years reserving the ancient rent The question was Whether he had pursued his Authority because by the meaning of the Proviso a Power was That the Conusor should have the rent presently or when the Term did begin But the opinion of the Court was That he had done lesse then by the Proviso he might have done for this Grant of the Reversion doth expire with the particular estates for life But if he had made a Lease to begin after the death of the Tenants for life the same had been more then this grant of the Reversion And Cook chief Justice said That the Grantor may presently have an Action of debt against the Grantee of the Reversion for the rent But because it was not averred that any of the Cestuy que viei were alive at the time when the Grantor did distrain for the rent Judgement in the principall case was respited Trinit 10. Jacobi in the Common Pleas. 282 UPon the Statute of Bankrupts this Case was moved to the Court If a Bankrupt be endebted unto one in Twenty Pounds and to another in Ten Pounds and he hath a Debt due to him by Bond of Twenty Pounds Whether the Commissioners may assigne this Bond to the two Creditors jointly or whether they must divide it and assigne Twenty Marks to the one and Twenty Marks to the other And the Court was of opinion That it was so to be divided as the words of the Statute are viz to every Creditor a portion rate and rate like c. And then it was moved How they might sue the Bond whether they might joine in the Suit or not ad quod non fuit responsum by Cook Warburton Justice said That when part of the Bond is assigned to one and part to another that now the Act of Parliament doth operate upon it and therefore they shall sue severally for he said That by the custome of London part of a debt might be attached And therefore he conceived part might be sued for Trinit 10. Jacobi In the Common Pleas. 283 SPRAT and NICHOLSON's Case SPrat Sub-Deacon of Exeter did libel in the Spiritual Court against Nicholson Parson of A. pro annuali pensione of Thirty Pound issuing out of the Parsonage of A. and in his Libel shewed How that tam per realem compositionem quam per antiquam laudabilem consuetudinem ipse predecessores sui habuerunt habere consueverunt praedictam annualem penfionem out of his Parsonage of A. Dodderidge Serjeant moved for a Prohibition in this Case because he demands the said Pension upon Temporall grounds viz. prescription and reall composition But Cook Chief Justice and the other Justices were of opinion That in this Case no Prohibition should be granted for they said That the party had Election to sue for the same in the Spirituall Court or at the common Law because both the parties were Spirituall persons but if the Parson had been made a party to the Suit then a Prohibition should have been granted Vide Fitz. Nat. Brev. 51. b. acc And they further said That if the party sueth once at the common Law for the said Pension that if he afterwards sue in the Spirituall Court for the same that a Prohibition will lie because by the first Suit he hath determined his Election And Cook cited 22. E. 4. 24. where the Parson brought an Action of Trespass against the Vicar for taking of Under-Woods and each of them claimed the Tithes of the Under-Woods by prescription to belong unto him and in that Case because the right of the Tithes came in question and the persons were both of them Spirituall persons and capable to sue in the Spirituall Court the Temporal Court was ousted of Jurisdiction But he said That if an issue be joined whether a Chappel be Donative or Presentative the same shall be tryed by a Jury at the common Law And in this case it was said by the Justices That the Statute of 34. H. 8. doth authorize Spiritual persons to sue Lay-men for Pensions in the Spiritual Courts but yet they said That it was resolved by all the Judges in Sir Anthony Ropers case That such Spiritual persons could not sue before the High Commissioners for such Pensions for that Suits there must be for enormious Offences only And in the principall case the Prohibition was denyed Trinit 10. Jacobi in the Common Pleas. 284 Sir BAPTIST HIX and FLEETWOOD and GOT's Case FLeetwood and Gots by Deed indented did bargain and sell Weston Park being three hundred Acres of Lands unto Sir Baptist Hix at Eleven Pound for every Acre which did amount in the whole to Two thousand five hundred and thirty Pounds and in the beginning of the Indenture of Bargain and Sale it was agreed betwixt the parties That the said Park being much of it Wood-land should be measured by a Pole of eighteen foot and a halfe And further it was covenanted That Fleetwood and Gots should appoint one Measurer and Sir Baptist Hixe another who should measure the said Park and if upon the measuring it did exceed the number of Acres mentioned in the Indenture of Sale that then S. Baptist Hixe should pay to them acording to the proportion of 11l. for every Acre and if it wanted of the Acres in the deed that then Fleet ' and Gots should pay back to S. Baptist the surplusage of the mony according to the proportion of 11. l. for every Acre And upon this Indenture Sir Baptist Hixe brought an Action of Covenant against Fleetwood and Gots and assigned a Breach that upon the measuring of it it wanted of the Acres mentioned in the Deed 70 Acres And upon the Declaration the Defendants did demurre in Law and the cause of the Demurrer was because the Plaintiff did not shew by what measure it was measured And therefore Sherley Serjeant who was of Councel with the Defendants said that although it was agreed in the beginning of the Deed that the measure should be made by a Pole of 18 feet and a half Yet when they come to the covenants there it is not spoken of any measure at all and therefore he said it shall be taken to be such a measure which the Statute concerning the measuring of Lands speaks of viz. a measure of sixteen foot and a half to the Pole and he said that by such measure there did not want any of the said three hundred Acres mentioned in the Deed. Dodderidge Serjeant contrary for the Plaintiff and he layed this for a ground That if a certainty doth once appeare in a Deed afterwards in the same Deed it is spoken indefinitely the same shall be referred to the first certainty and to that purpose he vouched the case in Dyer Lands were given by a Deed to a man haeredibus masculis and afterwards in the same Indenture it appeared that it was haeredibus masculis de Corpore and therefore it was holden but an estate in
them and held that the Custom might be good Mich. 17 Jacobi in the Kings Bench. 400. IN an Evidence in an Ejectione firme for Land in the Countie of Hartford the Case was this A man was married unto a woman and died The wife after 40 weeks and 10 days was delivered with child of a daughter and whether the said daughter should be heir to her Father or should be bastard was the Question and Sir William Padde Knight and Dr Montford Physitians were commanded by the Court to attend and to deliver their opinions in the Case who being upon their Oaths delivered their opinions That such a child might be a lawfull daughter and heir to her Father For as wellas an Antenatus might be heir viz. a child born at the end of 7 months so they said might a Postnatus viz. child born after the 40 weeks although that 40 weeks be the ordinary time And if it be objected that our Saviour Christ was born at 9 months and five days end who had the perfection of Nature To that it may be answered That that was miraeulum amplias And they held that by many Authorities and by their own Experiences a child might be Legitimate although it be born the last day of the 10â—h Month after the conception of it accounting the Months per Menses solares non Lunares Hill 17 Iacobi in the Kings Bench. 401. WEBB and PATERNOSTERS Case A Man gave Licence unto another to set a Cock of Hay upon his Medow and to remove the same in reasonable time and afterwards he who gave the Licence made a Lease of the Medow to the Defendant who put his Cattel into the Medow which did eat the Hay And for that the Paintiffe brought his Action of Trespass And upon Demurrer joyned the Court was of opinion against the Plaintiffe For upon the whole matter it appeared That the said Hay had stood upon the said ground or Medow for 2 years which the Court held to be an unreasonable time Mich. 18 Iacobi in the Kings Bench. 402. BROWN and PELL's Case IN an Ejectione firme upon a special Verdict found the Case was this Browne had issue two Sons and devised his Lands to his youngest Son and his Heirs And if it shall happen his said youngest Son to die without issue living his eldest Son That then his eldest Son should have the Lands to him and his Heirs in as ample manner as the youngest Son had them The youngest Son suffered a Common Recovery and died without issue living the eldest Son The Question was whether the eldest Son or the Recoverer should have the â—ands Montague Haughton and Chamberlain Justices The same is a Fee-simple Conditional and no Estate Tail in the youngest Son Doddridge Justice contrarie Mich. 18. Jacobi in the Kings Bench. 403. POLLYES Case IN an Action of Trespass It was agreed by the Court If 2 Tenants in Common be of Lands upon which Trees are growing and one of them felleth the Trees and layeth them upon his Freehold If the other entreth into the â—and and carrieth them away an Action of Trespasse Quaere clausum fregit lyeth against him because the taking away of the Trees by the first was not wrongfull but that which he might well do by Law And yet the other Tenant in Common might have seized them before they were carried off from the Land But if a man do wrongfully take my Goods as a Horse c. and putteth the same upon his Land I may enter into his Land and seize my Horse again But if he put the Goods into his House in such Case I cannot enter into his House and retake my Goods because every mans House is his Castle into which another man may not enter without special Liâ—ence Hill 19 Iacobi in the Kings Bench. 404. THe Case was That two Tenants in Common of Lands made a Lease thereof for years rendring Rent and then one of them died And the Question was who should have the Rent And if the Executor of him who died and the other might joyn in an Action for the Rent And as this Case was The opinion of the whole Court was That the Executor and the other might joyn in one Action for the Rent or sever in Action at their pleasures But if the Lease had been made for life rendring Rent The Court was cleer of opinion that they ought to sever in Actions Trin. 20 Jacobi in the Kings Bench. 405. A Man was bounden in a Bond by the name of Edmond and his true name was Edward And an Action of Debt was brought against the Executors of Edmond upon the said Bond who demanded Oyer of the Bond and then pleaded that it was not the Deed of their Testator and issue being thereupon joyned It was found by Inquest in London to be his Deed viz. the Deed of Edmond And it was moved in Arrest of Judgment Quod querens nihil caperet per Billam and so it was resolved and adjudged by the Court Doddridge only being absent And a Case was vouched by Henage Finch Recorder of London to prove this case That it was so adjudged in a Case of Writ of ErError brought in the Exchequer-Chamber in which Case the party himself upon such a Misnosmer and after a Verdict and Judgment given in the same Case did reverse the Judgment for this Error Mich. 14 Iacobi in the Kings Bench. 406. VESEY's Case VVIlliam Vesey was indicted for erecting of a Dove-house And Serjeant Harvey moved That the Indictment was insufficient the words were That the Defendant erexit Columbare vi armis ad commune nocumentum c. and that he was not Dominus Manerii nes Rector Ecclesiae And the Indictment was quashed because it was not contained in the Indictment that there were Doves in the Dove-cote For the meer erecting of a Dove-cote if there be no Doves kept in it it is no Nusans as it was holden by the Justices Mich. 15 Iacobi in the Kings Bench. 407 Sir WILLIAM BRONKER's Case SIR William Bronker brought an Action upon the Case for slanderous words And he shewed in his Declaration how that he was a Knight and one of the Gentlemen of His Majesties Privy-Chamber And that the Defendant spake of him these scandalous words viz. Sir William Bronker is a Cosening Knave and lives by Cosenage Which was found for the Plaintiffe In arrest of Judgment it was moved that the words were not actionable And so it was adjudged per Curiam Pasch 21 Iacobi in the Kings Bench. 408. YATE and ALEXANDER's Case YAte brought an action upon the Case against Alexander Attorney of the Kings Bench and declared That the Plaintiffe in an action of Debt brought against Alexander the Defendant who was Executor to his Father had Judgment to recover against him as Executor and that he sued forth a Fieri facias to the Sheriffe to have Execution and that before the Sheriffe could come to levy the debt and serve the
the possession is bound by the Judgment of Attaindor and the Act of Parliament 5 H. 7. 31. 7 H. 7. 15. 16 H. 7. 8. A discent of land shall not make a title against the King or any other who hath the land by an Act of Parliament But then in our Case If there should be a Remitter yet the same is overreached by the Office 〈◊〉 part 10. before the Statute of 33 H. 8. cap. 20. there ought to have been an Office found in the Case of Attaindor of Treason Br. Cases 103. Brook Office Devant c. 17. I do not mean an Office of intitling but an Office declaratory of a conspicuous title C. 5. part 52. There are two manner of Offices One which vesteth the estate and possession of the land c. in the King Another which is an Office of Instruction and that is when the estate of the land is lawfully in the King but the particularity thereof doth not appear upon record And the Office of Instruction shall relate to the time of the Attaindor not to make Queen Elizabeth in our Case in by discent but to avoid all meâ—ne Incombrances And is not this Remitter an Incombrance And for that purpose the Office shall relate For in things of Continuance Nullum tempus occurrit Regi C. 7. part 28. For so the rule of Nullum tempus c. is to be understood of a thing of Continuance and not a thing unica vice v. Fitz. Entre Congeable 53. Trav. 40. where it is said Where the King hath cause to seise for the forfeiture of Tenant for life if the Tenant for life dyeth the Reversion may enter for in that case Tempus occurrit Regi and the King cannot seize after the death of the Tenant for life 35 H. 6. 57. There is no discent against the King and if there be no discent then there is no Remitter The consequence of all this is That the Office doth relate to the Right And that the Monstrans de Droit doth not lie And the want of Office found for all this time was the fault of the Kings Officers and shall not prejudice the King But if the Office should not relate then the Monstrans de Droit would lie because then the King was in but by one single matter of Record We shew in the Office 33 Eliz. That there issued forth a Commission directed to certain of the Privy-Councel to enquire of the Treason and if Francis Bigot upon the Treason were Indicted And in our Case we shew immediately another Commission was directed to the Lord Chancellor and the two Chief Justices c. to arraign Francis Bigot And all that is confessed by Ratcliffe himself viz. modo forma And therefore the Objection which Glanvile made was frivolous viz. That it did not appear that Francis Bigot was attainted by Verdict by Confession or by Outlawry And so he concluded That for these causes the Judgment given in the Court of Common-Pleas ought to be reversed George Crook argued for Ratcliffe and he prayed that the Judgment might be affirmed I will argue only these points following 1. That Francis Bigot had not so much as a right of Action at the time of his Attaindor for he had not any right at all 2. Admit that he had a right of Action If this right of Action be given to the King by the said Statutes of 26 31 H. 8. It was objected That the right being clothed with a possession that the same is given to the King But I will prove the contrary 3. When Francis Bigot being Tenant in tail and being attainted and executed for Treason and then Katherine his wife dyeth being one of the Donees in tail 21 H. 8. and the lands discend to Ratcliff If the Office afterwards found shall relate to take away the Remitter I say it doth not but that his Remitter doth remain to maintain his Monstrans de Droit and he is not put to his Petition The chief point is What right Francis Bigot had at the time of his Attaindor 1. When Ralph Bigot being Tenant in tail 6 H. 8. made a Feoffment in Fee what right remained in Francis his Son The right is in abeyance viz. in nubibus that is in custodia Legis And then Francis Bigot had no right of that entail 21 H. 8. when he made the Feoffment Com. 487. There Jus is divided viz. Jus recuperandi Jus in randi Jus habendi Jus retinendi Jus percipiendi Jus possedendi but here Francis Bigot had not any of these rights Com. 374. if the Discontinuee of Tenant in tail levieth a Fine with proclamations and five years passe and Tenant in tail dyeth the issue in tail shall have other five years because he is the first to the right 19 H. 8. 7. C. 7. part 81. If Donee in tail maketh a Feoffment in Fee in rei veritate the Donee hath not jus in re neque ad rem C. 3. part 29. Litt. 649. There it appeareth that the right to an estate tail may be in abeyance Com. 552. Walsinghams Case There the King gave land in tail to Wyat who made a Feoffment unto Walsingham Afterwards Wyat was attainted of Treason and there the estate tail of Wyat was forfeited but the cause there was because that the reversion was in the Crown and so no discontinuance by his Feoffment because that the reversion was in the Crown In our Case no right of the estate tail was in Francis Bigot after the Feoffment unto his own use but the right is in abeyance It was objected That the Writ of Formedon is Discendit jus and the Monstrans de Droit was so I answer It is so in point of form in the Writ but not in substance C. 7. part 14. Tenant in tail makes a Lease for life and Tenant for life dyeth Now he hath an ancient right and the Donor may avow upon the Tenant in tail notwithstanding his Feoffment but that is by reason of privity and not by reason of any right he hath Jus recuperandi did discend to the issue in tail viz. Francis Bigot 21 H. 8. He who hath a right of Action giveth the same away by his Livery and Feoffment as appeareth by the Cases put in C. 1. part 111. It was objected That Cestuy que use was an Attorney or Servant therefore he doth not passe his own right for he cannot make an Attorney to make Livery and 9 H. 7. 26. was cited to be adjudged so But it is adjudged to the contrary M. 25 H. 8. in the Kings Bench rot 71. betwixt the Bishop of London and Kellet as it appeareth in Dyer 283. and Bendloe's Reports and C. 9. part 75. For there it is expresse that Cestuy que use may make a Letter of Attorney to make Livery which proves that he makes not the Feoffment as a Servant but as Owner of the Land It was objected That Cuesty que use was as an Executor but that I deny 49
of his eldest son in tail and afterwards he married a wife and died that the wife should not be endowed for when he had limited the use to himself for his life he could not limit arâ— Remainder over And Edwards Case adjudged in the Court of Wards which was That there was Tenant for life the Remainder in tail he in the Remainder granted his Remainder to I. S. and his heirs and afterwards Tenant for life dyed and then the grantee dyed his heirs within age it was adjudged that the heir of the garntee should not be in ward because the Tenant in tail could not by his Grant grant a greater estate then for his own life But he said That in the principall Case it appeareth That the Tenant in tail in Remainder hath particularly recited his estate And where it appeareth in the Conveyance it self that he hath but an estate in tail a greater estate shall not passe As if Tenant for life granteth a Rent to one and his heirs the same at the first sight seems to be a good Rent in Fee but when it appeareth in the Conveyance that the grantor was but Tenant for life there upon the Construction of the Deed it self it cannot be intended that he granted a Fee but that an estate for life passed only in the Rent Secondly he argued That although the estate in tail in the principall case was an abeyance Yet a Common Recovery would barr such estate tail in abeyance And therewith agreeth C. 2. part Sr Hugh Cholmleys Case 3. He said That the estate was out of the King and vested in the party without any Offence found as 49. E. 3. Isabell Goodcheaps case A man devised houses in London holden of the King in tail and if the Donee dyed without Issue that the Lands should be sold by his Executors The devisee died without Issue The bargain and sale of the Lands by the Executor doth divert the estate out of the King without Petition or Monstrans de Droit So If there be Tenant in tail the Remainder in tail and Tenant in tail â—n Remainder levieth a fine of his Remainder to the King and afterwards dyeth without Issue the Kings estate is determined and there needs no Petition or Monstrans de Droit 4. He said That in the principall case nothing was in the King because it doth not appeare that there was any seisure or Offence found to entitle the King And the Tenant in tail in the Remainder died in the life of King James and then if the Kings estate were then determined as before by the death of the Tenant in taile the King which now is never had any title And hee said that he needed not to shew a greater title then he had And hee took a difference when Tenant in taile doth onely defend or make defence and when he makes title to Lands in the one Case he ought for to shew That the Tenant in taile died without issue and in the other Case not And therefore in the principall case he demanded Judgment for the Defendant The Case was adjourned to another day Mich. 4. Caroli in the Star-Chamber 511 TAILOR and TOWLIN's Case A Bill was preferred against the Defendant for a Conspiracy to Indict the plaintiff of a Rape And the Plaintiff aleadged in his Bill That an Indictment was preferred by the Defendant against the Plaintiff before the Justices of Assise and Nisi prius in the County of Suffolk And did not lay it in his Bill that the Indictment was preferred before the Justices of Oyer and Terminer and Gaole delivery and the same was holden by the Court to be a good Exception to the Bill for that the Justices of Assise and Nisi prius have not power to take Indictments But afterwards upon veiw of the Bill because the Conspiracy was the principall thing tryable and examinable in this Court and that was well layd in the Bill the Bill was retayned and the Court proceded to Sentence And in this Case Richardson Justice said That in Conspiracy the matter must bee layed to be falsè et malitiosè and if it be layed for a Rape It must be layd that there was recens persecutio of it otherwise it will argue a Consent And therefore because the Defendant did not preferre an Indictment of Rape in convenient time after the Rape supposed to be done but concealed the same for half a years time and then would have preferred a Bill of Indictment against the plaintiff for the same Rape he held that the Indictment was false and malitious And Hyde Chief Justice said That upon probable proof a man might accuse another before any Justice of Peace of an Offence and although his accusation be false yet the Accuser shall not be punished for it But where the Accusation is malitious and false it is otherwise and for such Accusation he shall be punished in this Court Trinit 8. Caroli in the King Bench. 513 JONES and BALLARD's Case AN Action upon the Case was brought for these words viz These Jones are proper Witnesses they will sweare any thing They care not what they say They have already forsworn themselves in the Chancery and the Lord keeper Committed them for it Jermyn took Exceptions because it was not said to be in the Court of Chancery nor that it was in any Deposition there taken upon Oath But it was adjudged per Curiam That the Action would lie and Jones Justice said that the Addition in the Chauncery was as much as if he had said he was perjured there And Hâ—msies case was vouâ—hed by him Where one said of a Witness presently after a Tryall at the Guild Hall in London You have now forsworn your self That it was adjudged that the words were actionable Trinit 8. Caroli in the Kings Bench. 513. SYMME's and SMITH's Case A Woman being entituled to copyhold Lands of the Manor of D did covenant upon reasonable request to be made unto her to surrender the Copy-hold Land according to the Custome of the Manor And it was found That the Custome of the Manor is That a surrender may be made either in person or by Letter of Atturney and that the plaintiff did request the woman to make the surrender by a Letter of Atturney which shee refused to do And whether shee ought to surrender presently or might first advise with her Councell was the Question It was argued for the plaintiff that shee ought to do it presently And Munser's Case C. 2. part and 16. Eliz. Dyer 337. Sir Anthonie Cooks Case were vouched that she was to do it at her perill And the Election in this Case was given to the Covenantee and hee might require it to be done either in Court in person or by Letter of Atturney And C. 2. part Sir Rowland Heywards Case and C. 5. part Hallings Case was vouched to that purpose Rolls contrary for the Defendant And he said That the woman was to have convenient time to do it and
of the Justices was That the Fee was executed for a moitie Manwood If the Land be to one for life the Remainder for yeers the Remainder to the first Tenant for life in Fee there the Fee is executed so as if he lose by default he shall have a Writ of Right and not Quod ei deforceat for the term shall be no impediment that the Fee shall not be executed As a man may make a lease to begin after his death it is good and the Lessor hath Fee in possession and his wife shall be endowed after the Lease And I conceive in the principall case That the term shall not be extinct for that it is not a term but interesse termini which cannot be granted nor surrendred Mounson If he had had the term in his own right then by the purchase of the Fee the Term should be extinct But here he hath it in the right of another as Administrator Dyer If an Executor hath a term and purchaseth the Fee the term is determined So if a woman hath a term and takes an husband who purchaseth the Fee the term is extinct Manwood The Law may be so in such case because the Husband hath done an act which destroyes the term viz. the purchase But if the woman had entermarried with him in the Reversion there the term should not be extinguished for the Husband hath not done any act to destroy the term But the marriage is the act of Law Dyer That difference hath some colour But I conceive in the first case That they are Tenants in common of the Fee Manwood The Case is a good point in law But I conceive the opinion of Manwood was That if a Lease for yeares were to begin after the death surrender forfeiture or determination of the first lease for yeares that it shall not begin in that part for then perhaps the term in that part shall be ended before the other should begin Pasc 20. Eliz. in the Common Pleas. 3. A Man seised of Copyhold land descendable to the youngest Son by Custome and of other Lands descendable to the eldest Son by the common Law leaseth both for yeers The Lessee covenanteth That if the Lessor his wife and his heirs will have back the land That then upon a yeers warning given by the Lessor his wife or his heirs that the Lease shall be void The Lessor dieth the Reversion of the customary Land descends to the younger son and the other to the eldest who granteth it to the younger and he gives a yeers warning according to the Covenant Fenner The interest of the term is not determined because a speciall heir as the youngest son is is not comprehended under the word Heir but the heir at common Law is the person who is to give the warning to avoid the estate by the meaning of the Covenant But Manwood and Mounson Justices were cleer of opinion That the interest of the term for a moity is avoyded for the Condition although it be an entire thing by the Descent which is the act of Law is divided and apportioned and the warning of any of them shall defeat the estate for a moity because to him the moity of the Condition doth belong But for the other moity he shall not take advantage by the warning because that the warning is by the words of the Condition appointed to be done by the Lessor his wife or his heirs And in that clause of the Deed the Assignee is not contained And they agreed That if a Feoffment of lands in Borough-English be made upon condition That the heir at common Law shall take advantage of it And Manwood said that hee would put another question Whether the younger son should enter upon him or not But all Actions in right of the Land the younger son should have as a Writ of Error to reverse a Judgment Attaint and the like quod nota Pasc 22. Eliz. in the Common Pleas. 4 IT was holden by Meade and Windham Justices of the Common Pleas That a Parsonage may be a Mannor As if before the Statute of Quia emptores terrarum the Parson with the Patron and Ordinary grant parcel of the Glebe to divers persons to hold of the Parson by divers Services the same makes the Parsonage a Manor Also they held That a Rent-Charge by prescription might be parcel of a Manor and shall passe without the words cum pertinentiis As if two Coparceners be of a Manor and other Lands and they make partition by which the eldest sister hath the Manor and the other hath the other Lands and she who hath the Lands grants a Rent-charge to her sister who hath the Manor for equality of partition Anderson and Fenner Srjeants were against it Hill 23 Eliz. In the Common Pleas. 5. THis Case was moved by Serjeant Periam That if a Parson hath Common appendant to his Parsonage out of the lands of an Abby and afterwards the Abbot hath the Parsonage appropriated to him and his Successors Whether the Common be extinct Dyer That it is Because he hath as high an estate in the Common as he hath in the Land As in the case of 2 H. 4. 19. where it is holden That if a Prior hath an Annuity out of a Parsonage and afterwards purchaseth the Advowson and then obtains an Appropriation thereof that the Annuity is extinct But Windham and Meade Justices conceived That the Abbot hath not as perdurable estate in the one as in the other for the Parsonage may be disappropriated and then the Parson shall have the Common again As if a man hath a Seignorie in fee and afterwards Lands descend to him on the part of the Mother in that case the Seignory is not extinguished but suspended For if the Lord to whom the Land descends dies without issue the Seignorie shall go to the heir on the part of the Father and the Tenancy to the heir on the part of the Mother And yet the Father had as high an estate in the Tenancy as in the Seignory And in 21 E. 3. 2. Where an Assize of Nusance was brought for straightning of a way which the plaintif ought to have to his Mill The defendant did alledg unity of possession of the Land and of the Mill in W. and demanded Judgment if c. The plaintif said that after that W. had two daughters and died seised and the Mill was allotted to one of them in partition and the Land to the other and the way was reserved to her who had the Mill And the Assize was awarded And so by the partition the way was revived and appendant as it was before and yet W. the Father had as high an estate in the Land as he had in the Way Hill 23 Eliz. In the Common Pleas. 6. A Man makes a Feoffment in Fee of a Manor to the use of himself and his Wife and his heirs In which Manor there are Underwoods usually to be cut every one and twenty yeers and
the Nisi Prius the Defendant gave in Evidence That he had paid the Money to the Plaintiff before the day and that the Plaintiff had accepted of it all which Matter the Jury found specially and referred the same to the Justices And it was said by the whole Court That that payment before the day was a sufficient Discharge of the Bond but because the Defendant had not pleaded the same Specially but Generally that he had paid the Money according to the Condition the Opinion was That they must find against the Desendant for that the Speciall Matter would not prove the Issue and the Lord Dyer Chief Justice said That the Plaintiffs Councel might have demurred upon the Evidence Mich. 24. Eliz. in the Common Pleas. 15 AN Action was brought upon the Statute of 1 2 Phil. Mar. And the Statute is That no Distresse shall be driven out of the Rape Hundred Wapentake or Laith where such distresse is or shall be taken except it be to the Pound Overt within the said County not exceeding three Miles distant from the place where the Distresse was taken and the Plaintiff declared of a Distresse taken in a Hundred in such a County and that he drove it six miles out of the County and because a Hundred may be in diverse Counties and the Statute is That the driving ought not be more then 3 miles out of the Hundred and that it might be that the driving was six miles from the place where the Distresse was taken in another County and yet not three miles from the Hundred where the taking was for that Cause it was not adjudged against the party And that was after Verdict in arrest of Judgment Pasch 24. Eliz. in the Common Pleas. 16. A Feme sole seized of a Manor to which there were Copyholds One of the Copyholders did entermarry with the woman and afterwards he and his wife did suffer a Recovery of the Manor unto the use of themselves for their lives and afterwards to the use of the heires of the wife The Question was Whether the Copyhold were extinct And Anderson the Chief Justice said That if a Copyholder will joyn with his Lord in a Feoffment of the Mannor that thereby the Copy-hold is extinct The same Law is if a Copyholder do accept a Lease for years of his Copyhold which was agreed by the whole Court Pasc 24. Eliz. in the Common Pleas. 17. I. N. Doth Covenant with I. S. by Indenture to pay him forty pounds yearly for one and twenty years and afterwards I. S. doth release to I. N. all Actions The Question was Whether the whole Covenant were discharged And it was holden by all the Justices that only the Arrerages were discharged because the Covenant is executory yearly to be executed during the Term of one and twenty years for he may have several Actions of Covenant for every time that it is behind and if it be behind the second year he may have a new Action for that and so of every year during the Term several Actions for nothing shall be discharged by the release of all Actions but that which was in Action or a Dutie at the time of the release made As in 5. E. 44. and L. 5. E. 4. 41. In debt for Arrerages of an Annuity the defendant pleaded a release of all Actions which bore date before any arrerages were behind And the opinion of the Justices was there That it was no Plea and so it was adjudged for it is not a thing in Action nor a Duty untill the day of paiment comes And it is there holden by Arden That if a man make a Lease for two years rendring Rent and that the Tenant shall forfeit twenty shillings nomine poenae for not paiment at the day there a release of all Actions personals made to the Tenant before the penalty be forfeited is no Bar for it is neither Duty nor thing in Action before the failer of paiment And in 42. E. 3. 33. A man did release to his Tenant for term of life all his Right for the Term of the life of the same Tenant for life And that he nor his heirs might any right demand nor challenge or claim for the life of the Tenant for life in the said Land and afterwards he died and the Tenant committed Waste and the heir brought an Action of Waste and the Tenant pleaded the same Release and it was holden no Plea for nothing was extinct by the same Release but that which was in Action at the time of the Release made and that the Waste was not Rhodes Serjant put a Case which he vouched to be adjudged 4. Eliz. which was That if a man Covenant with I. S. that if he will marry his daughter that then he will pay him twenty pounds If a Release were made by I. S. before the marriage the same will not determine the twenty pounds if he marry her afterwards because it was not a Duty before the marriage So in the principal Case notwithstanding that the Covenant was once broken for the non-paiment at the first day yet because a several Action of Covenant lieth for every day that it was arreare the Release shall extinguish but only that which was Arreare at the time of the Release made And so Note That a Release doth not discharge a Covenant which is not broken Pasch 24. Eliz. in the Common Pleas. 18. UPon a special Verdict in an Action of Debt The Case was this I. S. and I. N. did submit themselves to the Award Order Rule and Judgemant of A. and B. for all Matters Quarrels and Debates and the Bond was made to perform the Award Order Rule and Judgement ment made by them And they Award Order Rule and Adjudge That I. S. shall pay to W. N. who was a Stranger twenty shillings The first Question was Whether the Award were good And it was holden by Anderson Chief Justice Meade and Periam Justices That the Award was void because it was out of their Submission for they cannot Award a man to do a thing which doth not lye in his power for in this Case W. N. to whom the money is to be paid is a Stranger and it is in his Election if he will accept of the money or not And so it is holden in 22. H. 6. 46. and 17. E. 4. 5. but vid. cont 5. H. 7. 2. Then if the Award be void The second Question was If yet the Bond to performe it be good or not And it was holden by the whole Court that it was void also against the Book of 22. H. 6. 46. because that the Condition was to performe that which was against the Law Quaere that Case for it seemes not to be Law at this day And it was then holden That Awards concerning Acts to be performed by them which have not submitted are void And in all Cases where each of the parties which submit have not some thing the Award is void Pasch
24. Eliz. in the Kings Bench. 19. IN an Action upon the Case upon a Promise The consideration was Where I. S. had granted a Term to I. D. That afterwards upon the request of I. S. I. D. did make to W. an Estate for four years upon which W. brought his Action And after Verdict it was moved in stay of Judgement that there was no good consideration and a difference taken where the Promise was upon the Grant and where afterwards If it were before then the Condition was good but if it were afterwards it was not good And it was adjudged That the Plaintiffe Nihil capiat per billam Pasch 24. Eliz. in the Kings Bench. 20. AN Action upon the Case upon a Promise was The Consideration was That in consideration that the Plaintiffe Daret diâ—m solutionis the Defendant Super se assumpsit and because he doth not say in facto that he had given day It was adjudged that no sufficient Consideration was alledged But if the Consideration were Quod cum indebitatus c. the same had been a good Consideration without any more for that implies a Consideration in it self Pasch 24. Eliz. in the Kings Bench. 21. IT was said by Cooke That the Chancellor or any Judge of any of the Courts of Record at Westminster may bring a Record one to another without a Writ of Certiorare because one Judge is sufficiently known one to the other as 5. H. 7. 31. where a Certificate was by the Chancellor alone and to this purpose is 11. H. 4. But that other Judges of base Courts cannot do nor Justices of the Peace as 3. H. 6. where the certificate by Suitors was held void Pasch 25. Eliz. In the Common Pleas. 22. SKIPWITH'S Case IT was found upon a speciall verdict in an Action of Trespass that the place where c. was Copy-hold land And that the Custome is That quaelibet foemina viro cooperta poterit devise lands whereof she is seised in Fee according to the custome of the Manor to her Husband and surrender it in the presence of the Reeve and six other persons And that I. S. was seised of the land where c. and had issue two Daughters and died and that they married husbands and that one of them devised her part to her husband by Will in writing in the presence of the Reeve and six other persons and afterwards at another day shee surrendred to the Husband and he was admitted and she died and her Husband continued the possession And the Husband of the other Daughter brought an Action of Trespasse Rodes Serjeant The Custome is not good neither for the Surrender nor for the Will for two causes One for the uncertainty of what estate shee might make a Devise and because it is against reason that the Wife should surrender to the Husband Where the Custome shall not be good if it be uncertain he vouched 13. E. 3. Fitz. Dum fuit infra aetatem 3. The Tenant saith that the lands are in Dorset where the Custome is that an Enfant may make a Grant or Feoffment when he can number twelve pence And it was holden that because it is uncertain when he can so do the Custome is not good 19. E. 2. in a Ravishment of Ward the defendant pleaded that the custome is that when the Enfant can measure an ell of cloth or tell twelve pence as before that he should be out of Ward and it is holden no good custom for the cause aforesaid 22. H. 6. 51. a. there a man prescribed That the Lord of D. had used to have Common for him and all his Tenants And because it is not shewed what Lord whether the Lord mediate or immediate it is adjudged no good custome And as to the Surrender it is against reason that the Wife should give to the Husband for a Wife hath not any Will but the Will of her Husband For if the Husband seised in the right of his Wife make a Feoffment in Fee and the Wife being upon the land doth disagree unto it saying that shee will never depart with it during her life yet the Feoffment is good and shall binde during the life of the Husband as it is holden in 21. E. 3. And therefore it is holden in 3. E. 3. Tit. Devise Br. 43. That a Feme covert cannot devise to her Husband for that should be the Act of the Husband to convey the land to himself And in the old Natura Brevium in the Additions of Ex gravi quaerela it is holden so accordingly And the Case in 29. E. 3. differs much from this Case For there a woman seised of lands devisable took an Husband and had issue and devised the lands to the Husband for his life and died and a Writ of Waste was brought against him as Tenant by the Courtesie and it was holden that it did lie and that he is not in by the Devise for the reason there is because he was in before by the Courtesie But as I conceive that Case will disprove the Surrender for in as much as he had it in the Right of his wife he could not take it in his own Right Also he took another Exception in the principal Case because that the wife was not examined upon the Surrender but none of the Justices spake to that Exception but when the Record was viewed it appeared that it was so pleaded Further He said That the devise was void by the Statute of 34. H. 8. Cap. 5. where it is said It is enacted That Wills and Testaments made of any Lands Tenements c. by women Coverts or c. shall not be taken to be good or effectual in Law And he said That this Statute doth extend to customary Lands And as to that all the Justices did agree That it is not within the Statute And as to the Statute of Limitations Andâ—rson chief Justice said That if a Lease for years which perhaps will not indure sixty years shall be taken strong this shall Anderson moved That if the Lord Lease Copyhold land by Word Whether the Lessee might maintain an Ejectione firme and he conceived not for in an Ejectione firmâ— there ought to be a Right in Fact And although it be by conclusion it is not sufficient for that the Jury or Judge are not estopped or concluded And he conceived That if Tenant at Will make a Lease for years that it is no good lease betwixt him and the Lessor but that he may well plead that he had nothing in the land Meade contrary but they both agreed That the Book of 14. E. 4. which saith That if Tenant at Will make a lease for years that he shall be a Disseisor is not Law Anderson said That the prescription in the principal Case was not good for it is Quod quaelibet foemina viro cooperta poterit c. and it ought to be that feme Coverts possunt and by the Custome have used to devise to the
husband and therefore the prescription is not good that Potest ponere retes upon the land of another upon the Custome of the Sea for prescription must be in a thing done also by him the devise is not good according to the Custome for that is that she may devise and surrender and that ought to be all at one time and that in the presence of the Reeve and six other persons as well as the Surrenderer and the words of a Custome shall be so far performed as they may be Meade contrary And that these Witnesses shall be referred to the surrender onely for a devise may be without Witnesses And he said that sometimes the latter clause shall not refer to all the precedent matter but unto the latter onely as 7. H. 7. is Where a Praecipe was brought of lands in A. B. and C. in Insula de Ely the Clause in Insula de Ely is referred onely to C. And it was said That if in the principal Case the Will were good that then the husbands are Tenants in common and then the Action of Trespass is not maintainable Pasch 25. Eliz. in the Common Pleas. 23. THis Case was moved by Serjant Gawdy Thomas Heigham had an hundred Acres of lands called Jacks usually occupied with a house and he leased the house and forty Acres parcel of the said hundred Acres to I. S. for life and reserved the other to himself and made his Will by which he doth devise the house and all his lands called Jacks now in the occupation of I. S. to his wife for life and that after her decease the remainder of that and all his other lands pertaining to Jacks to R. who was his second son Whether the wife shall have that of which her husband died seised for her life or whether the eldest son should have it and what estate he shall have in it Meade The wife shall not have it for because that he hath expressed his Will that the wife shall have part it shall not be taken by implication that she shall have the whole or the other part for then he would have devised the same to her And therefore it hath been adjudged in this Court betwixt Glover and Tracy That if Lands be devised to one and his heirs males and if he die without heirs of his body that then the land shall remain over that he had no greater estate then to him and his special heirs viz. heirs Males and the reason was because the Will took effect by the first words Anderson Chief Justice It was holden in the time of Brown That if lands were devised to one after the death of his wife that the wife should have for life but if a man seised of two Acres deviseth one unto his wife and that I. S. shall have the other after the death of the wife she takes nothing in that Acre for the Cause aforesaid For the second matter If the Reversion shall pass after the death of the wife to the second son we are to consider what shall be said land usually occupied with the other and that is the land leased with it But this land is not now leased with it and therefore it cannot pass Windham The second son shall have the Reversion for although it doth not pass by these words Usualy Occupied as Anderson held yet because the devise cannot take other effect and it appeareth that his intent was to pass the land the yonger son shall have it Anderson Jacks is the intire name of the house and lands And that word when it hath reference unto an intire thing called Jacks and is known by the name of Jacks shall pass to the second son for words are as we shall construe them And therefore If a man hath land called Mannor of Dale and he deviseth his Mannor of Dale to one the land shall pass although it be not a Mannor And if I be known by the name of Edward Williamson where my name is Edward Anderson and lands are given unto me by the name of Edward Williamson the same is a good name of purchase And the opinion of the Court was that the Reversion of the land should pass to the second son Pasc 25. Eliz. in the Common Pleas. 24. The Lord MOUNTJOY and the Earle of HUNTINGTON'S Case NOte by Anderson Chief Justice and Periam Justice If a man seised of any entrie Franchises as to have goods of Felons within such a Hundred or Mannor or goods of Outlaws Waifes Strares c. which are causual There are not Inheritances deviseable by the Statute of 32. H. 8. for they are not of any yearly value and peradventure no profit shall be to the Lord for three or four years or perhaps for a longer time And such a thing which is deviseable ought to be of annual value as appeareth by the words of the Statute And also they agreed that the said Franchises could not be divided and therefore if they descend to two coparceners no partition can be made of them And the words of the Statute of 32. H. 8. are That it shall be lawful c. to divise two parts c. and then a thing which canot be divided is not diviseable And they said That if a man had three Manors and in each of the three such Liberties and every Manor is of equal value that yet he cannot devise one Mannor and the Liberties which he hath to it Causá quâ supra but by them an Advowson is deviseable because it may be of annual value But the Lord Chancellor smiling said That the Case of the three Manors may be doubted And there also it was agreed by the said two Justices upon Conference had with the other Justices That where the Lord Mountjoy by deed Indented and Inrolled did bargaine and sell the Manor of â—amford to Brown in Fee and in the Indenture this Clause is contained Provided alwayes And the said Brown Covenants and Grants to and with the Lord Mountjoy his Heirs and Assigns that the Lord Mountjoy his Heirs and Assigns may digg for Ore within the land in Camford which was a great Waste and also to digg Turffe there to make Allome and Coperess without any contradiction of the said Brown his Heirs and Assigns They agreed That the Lord Mountjoy could not devide the said Interest viz. to grant to one to digg within a parcel of the said Waste And they also agreed That notwithstanding that Grant That Brown his Heirs and Assigns owners of the Soile might digg there also like to the Case of Common Sans number The Case went further That the Lord Mountjoy had devised this Interest to one Laicott for one and twenty years and that Laicott assigned the same over to two other men And whether this Assignment were good or not was the Question forasmuch that if the Assignement might be good to them it might be to twenty and that might be a surcharge to the Tenant of the soile And as to that
not shew what trees nor how many he might cut and that he hath cut down more then he ought and also he doth not shew when the cutting of them was Vide 6. E. 4. By prescription they may prescribe to hold a Court before the Steward but if there be no custome or Prescription to warrant it then as 4. H. 6. is it is coram Senescalio Sectatoribus Gaudy Every Court Baron is to be holden before the Suitors if there be no Prescription to the contrary But a Leet alwayes before the Steward The Action of Debt was upon the Presentment and the Error is brought upon the defects in the Presentment for if that be not good all is naught Notwithstanding it was said by one at the Bar That the forme of pleading in the book of Entries is That the Court was holden before the Steward if the Action be for debt or Trespass for Amercements or such personall things But if the Action be brought for reall things then it is before the Suitors But notwithstanding that the Judgement for the Causes aforesaid was reversed Mich. 28 29. Eliz. in the Kings Bench. 84 BARKER and FLETWEL'S Case BArker of Ipswich brought an Action of Covenant against the Assignee of his Lessee for years one Fletwell And set forth That whereas he had made a Lease for years reserving Rent with re-entry for non-payment of the Rent and that the Lessee did covenant to build a house upon the Land within the first ten years and that he assigned over his terme And he brought the Action against the Assignee who pleaded That the Lessor did enter and had the Possession for part of the ninth year and if thereby the Covenant were discharged was the demurrer in Law Godfrey Who argued for the Lessor said That by this entrie of the Lessor the Covenant was not suspended As 20. E. 4. 12 BY. Extinguishment 34. The Abbot of D. did grant to W. S. a Corrodie viz. so much bread c. for the term of his life faciend ' talia servitia prout J. N. alii usi sunt focere The Grantee leased back again the Corrodie unto the Abbot for 10. years rendring 3â— rent per annum and he brought Debt for the rent and the Abbot said That he did not the Services and the Grantee said That he was not bound to do them for that by the Lease the Corrodie was suspended And it was holden that it was not suspended Godfâ—â—y held the reason to be because that the service is a Collaterall thing And therefore he said He ought to do it notwithstanding that the Abbot had the Corrodie So in 8. H. 7. 7. Br. Conditions 134. Where Tenant in taile makes a Feoffment in Fee and takes back an estate in Fee and afterwards was bounden in a statute Merchant and then made a Feoffment in Fee upon Condition and died his Issue within age who enters for the Condition broken he was remitted notwithstanding that execution upon the statute was sued against the Father in his life So if Lease be made of a Manor except Herriots Fines and Amercements and that the Lessee shall collect them during the Term although that the Lessor entreth yet the Lessee ought to collect them during the term Also he pleades here That Barker did enter and that generall pleading is doubtfull and the Plea shall be taken strictly against him that pleadeth it and it may be that he entred by wrong and so it may be that he entred by right viz. for not payment of the Rent as in truth his entry was And if Barker did enter lawfully then it was no suspension or extinguishment of the Covenant As 19. R. 2. If Lessee for life commit waste and afterwards alieneth and the Lessor entreth for the Alienation yet after his entry he shall have an Action of Waste against the Lessee So 8. H. 6. 10. Waste 8. but with this difference If the Lessor enter wrongfully there although Waste be done before he shall not have Waste to punish it but otherwise if he enter for the Forfeiture done by the Tenant Also if the Covenant was suspended it was only for the time that the Lessor had the Possession and the Party hath not answered for the time before or after As 16. H. 7. If one be bound to find a Chaplain to say Divine Service within such a Chappel and the Chappel fall down it is a good excuse for the time but if it be built again he must find a Chaplain there Clarke contrary If Lessee for years covenanteth to repair the houses I grant that the same shall charge his Assignee But a Collateral thing as if the Lessee covenant to pay such a sum in gross or to enfeoffe him of the Manor of D the same shall not charge the Assignee no more shall a Covenant to build a new house But here it was said That he had time to build it both before and after the entry of the Lessor Barker To that he answered Not so for if he once disturbed the Covenant is destroyed Godfrey This Case was this Terme in the Common Pleas. Lessee for five years covenanted to build a Mill within the terme and because he had not done it the Lessor brought an Action of Covenant and the Defendant pleaded That within the last three years the Lessor forcibly held him out c. so as he could not build it and by the Opinion of all the Justices he ought to plead That the Lessor with force held him out otherwise it would be no Plea Cook As amicus curiae vouched 35. H. 6. Tit. Barr. If one be bounden to enfeoffe me of such land before Michaelmas there the Obliger in Debt brought upon the Bond pleaded That the Obligee before the day had entred with force into the land so as he could not enfeoffe him and there it was holden That he ought to prove that he was holden out by force Gaudy In the principall Case he ought to have shewed That he would not suffer him to build And the other Justices seemed to be of the same Opinion but yet they said That they would advise upon the Case Mich. 28 29. Eliz. in the Kings Bench. 85 OWen took Exception to a Declaration in an Ejectione firme because it was à Possessione sua ejecit where it ought to be according to the supposal of the Writ Quod à firma sua ejecit Also it was of three closes naming them with a Videlicet containing by estimation 30. Acres and that he said did contain no certainty where he ought to have alledged in Fact that they did contain so many Acres But it was holden by all the Justices That although he doth not put in the Declaration the certainty of the Acres if he give a certain name to them as Green-Close c. that it is good And as to the other Exception viz. Ejecit à Possessione inde that the word inde had relation to the Farme and shall be as much as
Condition that if the Rent be behinde the Feoffor might enter and retain quousque there the estate shall be determined pro tempore and afterwards revived again Windham There the Feoffor shall have the land as a distress and the Free-hold is not out of the Feoffee Fenner The Book proves the contrary for the Feoffor had an Action of Debt for the Rent Mich. 28 29. Eliz. in the Common Pleas. 121 IN a Formedon the Tenant pleaded a Fine with proclamations The Plaintiff replyed No such Record It was moved that the Record of the Fine which remained with the Chyrographer did warrant the Plea and the Record which did remain with the Custos Brevium did not warrant the Plea and both the Records were shewed in Court and to which the Court should hold was the question Shuttleworth To that which was shewed by the Custos Brevium and he cited the Case of Fish and Brocket where the Proclamations were reversed because that it appeared by the Record which was shewed by the Custos Brevium that the third proclamation was alledged to be made the seventh day of June which seventh day of June was the Sunday and yet hee said It appeared by the Record certified by the Chyrographer that it was well done and yet the Judgment reversed Rodes Justice There is no such matter in the same case And 26. El. by all the Justices and Barons of the Exchequer in such case the Record which remains with the Custos Brevium shall be amended and made according as it is in the Record of the Office of Chyrographer Windham agreed And afterwards the said President was shewed in which all the matter and order of proceedings was shewed and contained and all the names of the Justices who made the Order And by the command of the Justices it was appointed that the said President should be written out and should remain in perpetuam rei memoriam And the reason of the said Order is there given because the Note which remains with the Chyrographer is principale Recordum Mich. 28 29. Eliz. in the Common Pleas. 122. AN Infant was made Executor and Administration was committed unto another durante minore aetate of the Executor and that Administrator brought an Action of Debt for money due to the Testator and recovered and had the Defendant in Execution and now the Executour is come of full age Fenner moved that the Defendant might be discharged out of Execution because the Authority of the Administrator is now determined and he cannot acknowledge satisfaction nor make Acquittances c. Windham Justice Although the Authority of the Plaintiffe bee determined yet the Recovery and the Judgement do remaine in force But perhaps you may have an Audita querela But I conceive That such an Administrator cannot have an Action for he is rather as a Bayliff to the Infant Executor then an Administrator Rodes agreed with him and he said I have seen such a Case before this time viz. Where one was bound to such a one to pay a certaine sum of money to him his Heirs Executors or Assignes And the Obligee made an Infant his Executor and administration was committed during his minority and the Obligor paid the money to that Administrator And it was a doubt whether the same was sufficient and should excuse him or not And whether he ought not to have tendred the money to them both Fenner That is a stronger Case then our Case One who is Executor of his own wrong may pay Legacies and receive Debts but he cannot bring an Action Windham Doth it appear by the Record when the Infant was made Executor and that Administration was committed as before Fenner No truely Windham Then you may have an Audita querela upon it Fenner said So we will Note Hil. 33. Eliz. in the Exchequer Miller and Gores Case An Infant pleaded in a Scire facias upon an Assignement of Bonds to the Queen That Saint-Johns and Eley were Administrators during his minority And it was holden by the Court to be no plea. But he ruled to answer as Executor Mich. 28 29. Eliz. in the Common Pleas. 123 SUggestion was made that a Coroner had not sufficient Lands within the Hundred for which a Writ issued forth to choose another and one was chosen It was moved by Serjeant Snag If theâ—eby the first Coroner did cease to be Coroner presently untill he be discharged by Writ Rodes and Windham Justices He ceases presently for otherwise there should be two Officers of one Coronership which cannot be Also the Writ is Quod loco I. S. eligi facias c. unum Coronatorem and he cannot be in place of the first if the first do not cease to be Coroner So if any be made Commissioners and afterwards others are made Commissioners in the same cause the first Commission is determined Snagg said That in the Chancery they are of the same Opinion but Fitz. Nat. Brevium 163. N. is That hee ought to be discharged by Writ Mich. 28 29 Eliz in the Common Pleas. 124 IN an Action of Debt brought against Lessee for years for rent he pleaded That the Plaintiff had granted to him the reversion in Fee which was found against him Walmesley Serjeant moved Whether by that Plea he had forfeited his terme or not Rodes and Windham Justices He shall not forfeit his Term and Rodes cited 33. E. 3. Judgement 255. Where in a Writ of Waste the Tenant claimed Fee and it was found against him that he had but an Estate for life and yet it was no Forfeiture Fenner and Windham It is a strong Case for there the Land it selfe is in demand but not so in our Case Rodes The Tenant shall not forfeit his Estate in any Action by claiming of the Fee-Simple but in a Quid juris clamat Walmesley and Fennèr Where he claimes in Fee generally and it is found against him there perhaps hee shall forfeit his Estate but where he shewes a speciall conveyance which rests doubtfull in Law it is no reason that his Estate thereby should bee forfeited although it be found against him Rodes 6. R. 2. Quid juris clamat 20. The Tenant claimed by speciall conveyance and yet it was a forfeiture But in the principall Case at Bar he and Windham did agree cleerly That it was no forfeiture Mich. 28 29 Eliz. In the Common Pleas. 125 AN Action upon the Case was brought because that the Defendant had spoken these words viz. That the Plaintiffe hath said many a Masse to J. S. c. Anderson Chief Justice Primâ facie did seem to incline That no Action would lie for the words although that a Penalty is given by the Statute against such Masse-Mongers For he said That no Action lieth for saying That one hath transgressed against a Penall Law Periam Justice contrary Anderson If I say to one That he is a disobedient Subject no Action lieth for the words Windham Justice That is by reason of the generality Puckering
the Land unto another Shuttleworth moved it to the Court Whether the Patentee ought to shew the Letters Patents and he conceived He need not because he hath not any interest in them but the same do belong only to the Earle As if a Rent be granted to one in Fee and he taketh a wife and dieth and the Wife bringeth a Writ of Dower she is not bound to shew the first Deed by which the Rent was granted to her Husband because the Deed doth not belong unto her So hee who sues for a Legacie is not tied to shew the Will because the same belongs to the Executor and not him Periam Justice The Cases are not alike for they are Strangers and not Privies but the Lessee in the principall Case deriveth his interest from the Letters Patents and therefore he ought to shew them Rodes Justice remembred Throgmorton's Case Com. 148. a. where a Lease was made by an Abbot to J. S. and afterwards the same Abbot made a Lease unto another to begin after the determination of the first Lease made to J. S. and exception was taken That he ought to have shewed the Deed of the first Lease and the Exception was disallowed by the Court Periam That case is not like this case and he said That as he conceived the Lessee in this case ought to shew forth the letters Patents and if any Books were against his Opinion it was marvellous Mich. 28 29 Eliz. in the Common Pleas. 134 ONE intruded after the death of Tenant for life and died seised and the land descended to his Heire and a Writ of Intrusion was brought in the Per against the Heir and Gawdy Serjeant prayed a Writ of Estrepment against the Tenant And first the Court was in doubt what to do but afterwards when they had considered of the Statute of Gloucester Cap. 1. in the end of it Anderson said If the Writ be in the Per take the Writ of Estrepment but if the Writ be not in the Per we doubt whether a Writ of Estrepment will lie or not Mich. 28 29 Eliz. In the Common Pleas. 135 WOOD against ASH and FOSTER CErtain Lands with a Stock of Sheep was leased by Indenture and the Lessee did covenant by the same Indenture to restore unto the Lessor at the end of the Terme so many Sheep in number as he took in Lease and that they should be betwixt the age of two and four years Afterwards the Lessee granted the same Stock unto a Stranger viz. to Elizabeth Winsor who was the wife of Ashe whereas in truth all the ancient Stock was spent And it was holden by all the Justices upon an Evidence given unto a Jury at the Bar That when such a Stock of Sheep is leased for years the principall Property doth remain in the Lessor as long as those Sheep which were in esse at the time of the Lease should live but if any of them do die and other come in their roomes then the property of those new Sheep doth belong to the Lessee and therefore they held that the second Lessee should have so many of the Sheep as were left and did remaine at the end of the Lease and no other And yet it was objected by Walmesley That the Stock was entire and that as soon as any other came in the room of the ancient Sheep which were dead that they were accounted part of the same stock and although they be all dead and so changed successively two or three times yet he said it shall be said the same stock And he resembled the same to the case of a Corporation which although all the Corporation die and other new men come in their places it shall be said the same Corporation But notwithstanding his Opinion all the Justices were of opinion as before Walmesley said That agreeing with his opinion was the opinion of all the civill Lawyers but the Court was angry and rebuked him that he did in such manner crosse their opinions and that he cited the opinion of Civilians in our Law and they resolved the contrary and they said there is a difference betwixt the Lease of other Goods and a lease of live Cattel for in the first Case if any thing be added for mending repairing or otherwise by the Lessee at the end the Lessor shall have the additions for of them he hath alwayes the property and they are annexed to the principall but Lambs Calves c. are severed from the principall and are the Profits arising of the Principall which the Lessee ought to have else he should pay his Rent for nothing And as to the issue upon the Cepit by Foster it was shewed That he did but stay the Sheep in his Manor where he had Fellons Goods Waifes and Strayes and that the Sheep were stayed upon a Huy and Cry and that he had taken Bond of one to whom he had delivered the Sheep to render them to him who had the right of them And that stay was holden by the Court to be out of the point of the Issue For that he who doth stay doth not take Mich. 28 29. Eliz. in the Common Pleas. 136. The Heirs of Sir ROGER LEWKNOR and FORD's Case Intratur Pasch 28. El. Rot. 826. SIR Roger Lewknor seised of Wallingford Park made a lease thereof unto Ford for years and died the Lessee granted over his term to another excepting the Wood the term expired and now an action of Waste was brought against the second lessee by the two Coparceners and the Heir of the third Coparcener her Husband being tenant by the courtesie And Shuttleworth and Snag Serjeants did argue that the action would not lie in the form as it was brought And the first Exception which was taken by them was because the action was generall viz. Quod fecit Vastum in terris quas Sir Roger Lewknor pater praedict ' the plaintiffs cujus haeredes ipsae sunt praefat ' defend ' demisit c. and the Count was that the Reversion was entailed by Parliament unto the Heirs of the body of Sir Roger Lewknor and so they conceived that the Writ ought to have been speciall viz. cujus haeredes de corpore ipsae sunt For they said that although there is not any such form in the Register yet in novo casu novum remedium est apponendum And therefore they compared this case to the case in Fitz. Nat. Brevium 57. c. viz. If land be given to Husband and Wife and to the Heirs of the body of the Wife and the Wife hath issue and dieth and the Husband committeth Waste the Writ in that case and the like shall be speciall and shall make speciall recitall of the estate And so is the case 26. H. 8. 6. where Cestuy que use makes a lease and the lessee commits Waste the action was brought by the Feoffees containing the speciall matter and it was good although there were not any such Writ in the Register cujus
commit his house to his servants and the one doth assent to the Livery and departeth the house if the other do continue there and Livery be made it is no good Livery of Seisin Mich. 6. Jacobi in the Kings Bench. 216 IT was holden for Law in this Court That if a man do offend against any Penal Law the Informer ought to begin his Suit within one year after the Offence done otherwise he shall not have the moity of the Penalty And if the Informer hath put in his Information although that the party be not served with Process to answer it yet the same doth appropriate the Penalty unto him Hill 6. Jacobi in the Common Pleas. 217 PEREPOYNT'S Case PErepoynt procured one to convey the daughter of a Gentleman and to marry her to a Ploughman in the night and procured a Priest to marry them and was there present for which matter he was excommunicate by the Ordinary of the Diocess and after absolution he was for the same committed to Prison by the High Commissioners It was holden by the Court That matters concerning Tithes Marriage or Testaments are not examinable before them yet because that he had suffered imprisonment for such things and that neither the Statute of 23. H. 8. nor the Cannon doth extend to the High Commissioners it was resolved That if upon submission to the Commissioners they would not set him at liberty that this Court would do it Mich 6. Jacobi in the Star-Chamber 218 IT was resolved by the whole Court of Star-Chamber That if a man doth assist one who is a Plaintiffe in that Court that it is not maintenance because that it is for the benefit and advantage of the King But if a man do assist an Informer in another Court in an Information upon a Penall Law the same is such a Maintenance for which he may be punished in this Court 6. Jacobi in the Common Pleas. 219 IT was adjudged in this Court That if Land which was sowed be leased to one for life the Remainder to another for 〈◊〉 That if the Tenant for life dieth before the severance of the Corn 〈…〉 in the Remainder shall have the Corn. Mich. 6. Jacobi in the King 's Bench. 220 THE Lessee of a Copy-holder was distrained for rent behind in the time of his Lessor and the Lessee did assume and promise That he would satisfie the Lord his rent if he would surcease the suing of him It was adjudged by the whole Court That it was a good Assumpsit and a good consideration Mich. 7. Jacobi in the King 's Bench. 221 PIGGOT and GODDEN's Case NOte It was in this Case agreed by the whole Court and so adjudged That in an Ejectione firme a man shall not give colour because the Plaintiffe shall be adjudged in by title Mich. 7. Jacobi in the King 's Bench. 222 TWo Tenants in Common brought an Action upon the Case for stopping of a water course against a Stranger whereby the profits of their Lands were lost and it was shewed in pleading that the water had run time out of minde ante diem Obstructionis and Judgment was given for the Plaintiffs And two Exceptions were taken by Coventry First that Tenants in Common ought to have several Actions and not have joyned Secondly that the Custom ought to have been pleaded to continue ante usque die Obstructionis and both the Exceptions were dissallowed by the Court and it is not like the Case of Falsefails in which Action they must join because the same is in the Realty Mich. 7. Jacobi In the King 's Bench. 223 CROSSE and CASON's Case AN Action of Debt was brought upon due Obligation the condition of which was that the Obligee the 18. of August anno 4. Jacobi should go from Algate in London to the Parish Church of Stow-Market in Suffolk within 24. hours and the Obligee shewed that he went from Algate to the said place and because he did not shew in his Declaration in what Ward Algate was It was holden not to be good Mich. 7. Jacobi in the King 's Bench. 224 NOte That it was adjudged to be Law by the whole Court that if a man bail goods to another at such a day to rebail and before the day the Bailee doth sell the goods in market overt Yet at the day the Baylor may seise the goods for that the property of the goods was alwaies in him and not altered by the Sale in market overt Mich. 7. Jacobi in the Common Pleas. 225 ZOUCH and MICHIL's Case AN Enfant Tenant in tail did suffer a Recovery by his Gardian It was holden by the Court that the same should binde him because he might have remedy over against the Gardian by Action upon the Case But otherwise if he suffer a Recovery by Attorney for that is void because he hath not any remedy over against him as it was adjudged 4. Jacobi in Holland and Lees Case Pasch 8. Jacobi In the Common Pleas. 226 WILSON and WORMAL's Case IN an Evidence given to a Jury it was admitted without Contradiction that if judgment in an action of Debt be given against Lessee for years and afterwards the Lessee alieneth his Term and after the year the Plaintiff sueth forth a Scire facias and hath Execution That the Terme is not lyable to the Execution if the Assignement were made bona fide Also in that Cook Chief Justice said that if Lessee for years assignee over his Terme by fraud to defeat the Execution And the Assignee assigneth the same over unto another bona fide that in the hands of the second Assignee it is not lyable to Execution Also in this Case it was said for Law That if a Man who hath goods but of the value of 30. pound be endebted unto two Men viz. to one in 20. pound and to another in 10. pound and the Debtor assignes to him who is in his debt 10. pound all the goods which are worth 30. pound to the intent that for the residue above the 10. pound debt he shall be favourable unto him This Assignement is altogether void because it is fraudulent in part But Foster Justice said that it shall not be void for the whole but onely for the surplusage as Twynes Case C. 3. part 81. Quaere Pasch 8. Jacobi in the Common Pleas. 227 BRISTOW and BRISTOWE's Case IN an Action of Covenant the Case was this Lessee for 90. years made an Assignement for part of the Term viz. for 10. years and the Assignee covenated to repair c. The first Lessee devised the Reversion of the Term and dyed the Devisee of the Reversion brought an Action of Covenant against the Assignee for 10. years and the question was If the Devisee of the Reversion being but a Termor were within the Statute of 32. H. 8 of Conditions Secondly whether the Action would lye because no notice was given of the grant of the Reversion Dodderidge Serjeant to the first point said that this
And Warburton held that the heir should have the Rent as a Freehold descended and for that he cited 26. H. 6. Statham Recognizance But Foster said that he should not have the Rent at all Warburton and Walmesley doubted whether the Rent were devisable by the Statute and they said that although the heir should have it by descent yet it should not be in the nature of a descent of Inheritance for he should not have his Age. Cook and Daniel were absent Pasch 8. Iacobi in the Common Pleas. 239 HEYDON and SMITH's Case IN an Action of Trespass the Plaintiff declared of breaking of his Close and cutting down of a Tree viz. an Oak The Defendant pleaded that it was his Free-hold The plaintiff in his Replication shewed that he held of the Defendant by Coppy of Court Roll a Tenement whereof the place in question is parcell And that the Custome of the Manor is That all the Copy-holders within the Manor have used to take wood for house-bote hay-bote c. et pro ligno combustibili in dicto tenemento And said that he had alwayes preserved the wood and trees growing upon the said Tenement And that he had nourished and fostered the said Oake And that sufficient wood was not left upon the said Tenement for house-bote c. upon which the Defendant did demurre in Law Foster Justice Judgment ought to bee given for the plaintiff I hold that a Copy-holder of common right without any Custome shall have wood for Reparations and for fire-bote and so is 9. H. 4. Fitz. Wast 59. the opinion of Hall And I hold that the plaintiff hath an Interest in the Trees according to Palmers Case C. 5. part And 2. H. 4. 12. is That a Coppy-holder may bring An Action of Trespass for the Trees And I hold That without a Custome the Lord cannot fell the trees growing upon the Copy-hold no more then upon a Lease for years But in this Case by Implication of Custome the Lord may take the Trees if he leave sufficient for Reparations c. For the Custome is That a Copy-holder shall have sufficient for Reparations by which is implyed that he shall not have more and then the Rest the Lord shall have And I am of opinion that in this Case and in case where the trees are excepted upon a Lease that the Lord and the Lessor may enter and take the Trees although there be not any clause of ingresse or regresse But in the principall Case because there are not more Trees then are sufficient for Reparation the Lord cannot take them but Trespasse lieth against him Warburton Justice The matter of prescription is not materiall in this case for of common right a Copyholder ought to have Trees for Reparations and to that purpose he hath a speciall propertie But the onely question in this Case as I conceive is If one who hath a speciall property may bring an Action of Trespasse against him who hath the generall propertie And I conceive that he may well enough As if I lend my horse for a week and within the week I take him again Trespasse lieth Walmesley Justice For the substance I am of opinion for the Plaintiff but I doubt For I would not that Copyholders have so great libertie and he hath prescribed to take all trees and to take them ad libitum is too great a liberty And I hold that a Copyholder hath no greater property then one who ought to have Estovers And in this case hee ought to have said quando opus fuerit and he ought to have shewed that the houses were in decay for want of Reparations for which cause opus fuerat c. And so for the pleading I hold that it is not sufficient Cook chief Justice The Plaintiff ought to have Judgment For I hold cleerly That the Lord cannot take trees without leaving sufficient for Reparations no more then he can pull down or overthrow the house of the Copyholder For of common right without Custome or prescription the Trees do belong unto the Copyholder for Reparations and for that purpose hee may take them without any Custome and the Lord cannot take the Trees without leaving sufficient for the Copyholder if there be not a speciall Custome so to do But I hold that without any custome the Lord may take the Trees if he leave sufficient to the Copyholder for the Reparations Mich. 25. 26. Eliz Doylies Case A Copyholder who hath used to take Timber for Reparations brought an action of Trespasse Trinit 26. Eliz. An action of Trespasse was brought by a Copyholder against the Lord. Pasch 37. Eliz. the Case of Mutford Wood. Trinit 40. Eliz. Stebbings Case but there the action was an action upon the Case To the Exceptions taken by Justice Walmesley that the Plaintiff ought to have shewed that the houses wanted Reparations I hold as hee said That if the action had been brought against him and hee justifie the cutting hee ought to have shewed that the houses wanted Reparations But in our Case he brings the Action against another which lyeth although that the houses were not then in decay And for the signification of the word House-boot c. Bote is an ancient Saxon word which signifies in some case Recompence and in some case Reparatio For the manner of prescription That all the Tenants may take wood pro ligno combustibili in dicto Tenemento the same is no good prescription That all shall take to burn in that Tenement But for the reasons beforesaid Judgment was given for the Plaintiffe Pasch 8. Jacobi in the Common Pleas. 240 NEWTON and RICHARD's Case IT was ruled by the whole Court in an Action of Trespasse Quare clausum fregit cuniculos suos vel ipsius A. c. cepit c. was good Pasch 8. Jacobi In the Common Pleas. 241 MEERES and KIDOUT's Case UPon an Evidence to a Jury in this Case it was Ruled by the whole Court That if there be Copyholder for life and the Lord leaseth for years and the Copy-holder commit a forfeiture that the Lessee may enter for the forfeiture And Cooke Cheife Justice said That if there be Tenant for life the Remainder for life If the Tenant for life committeth a forfeiture he in the Remainder for life may enter and that the Case 29. Ass 64. is not Law For the particular estate in possession is determined by the forfeiture And if hee in the Remainder could not enter then it should be at the will of the Lessor whether hee should ever have it The same Law is if the Remainder be for yeers Foster Justice The reason that is given for an Entrie for a forfeiture is because that the Reversion or Remainder is devested by the Feoffment But in this Case because it is but interesse termini nothing is devested For notwithstanding the Feoffment the Interesse termini may be granted to which Cook agreed But Foster said that hee did agree in opinion with Cook
parcel of it for in the one Case the Visne shall be of the Manor in the other not Vide 9. Eliz. Dyer ar But it was said That in this Case the Modus did extend only to things in Stangrave and therefore the Visne should be of Stangrave only Nichols Justice said That although the Parish be a Town and of one name yet the Visne shall be from the Parish to which the Court agreed And in the principall Case the Pleading was That the Manor was in Parochia and the Modus alledged to be in Parochia and the Prohibition de Parochia and therefore the Venire facias ought to be de Parochia and not de Manerio or de Villâ—â— Cook cited 4. E. 4. and 23. E. 4. that in Trespass de Parochia is a good addition for it shall not be intended that there are two Towns in one Parish And it was said by the Court in this Case That before the Statute of 2. E. 6. all Prohibitions to the Spirituall Court were quia secutus est de Laico feodo for when a man had a Modus dicimandi the Corn and other things were lay things Then it was moved by a Serjeant at Bar That at the Assizes where the tryall of the Modus decimandi was one of the principal Panel did appear only upon the Venire facias and the question was If in such Case a tales might be awarded de circumstantibus And it was holden by the Court that such tales might be well awarded and 10. Eliz. Dyer vouched to prove the same It was also said by the Court That at the common Law if not in appeal the tales might be of odd number as quinque tales or novem tales but now since the Statute of 35. H. 8. the tales may be even or odd as pleaseth the party But it was adjudged in this Case That in no Case where a triall is at the Bar shall any Tales de circumstantibus be awarded And so are all the Presidents Mich. 11. Jacobi in the Common Pleas. 292 LEIGHTON against GREEN and GARRET THomas Leighton an Administrator durante minori 〈◊〉 of J. S. did libell in the Court of Admiralty against the Defendants and shewed in the Libel That there were Covenants made betwixt them by a Charter party they being Owners of the Ship called the Mary and John of Lynn that the Defendants should victuall the said Ship for a Voyage into Denmark and that the Ship should be staunch and without leak And shewed in his Libel that the Ship being upon the Seas did spring a leak by reason of which the Plaintiff did lose a great part of the Freight of the said Ship consisting in divers Commodities viz. Coney skins The Defendant pleaded That the Covenants were made infra Portum de Lynn And further pleaded That the Plaintiffe had before that time brought an Action of Covenants against the same Defendant upon the same Deed in which Action the Plaintiffe was Non-suit and it was adjudged That it was a good Plea in Bar and thereupon a Prohibition was awarded to the Court of Admiralty Cook Chief Justice in this Case said That charter party est charta partita and is all one in the Civil Law as an Indenture is in the Common Law And in this Case it was adjudged That the Triall should be there where the contract was made and so was it adjudged in Constantine and Gynns Case Where the Originall Act was in England and the subsequent matter upon the Sea the Tryall shall be where the Originall Act is done And so it was agreed in this Case that the Tryal should be Mich. 11. Jacobi in the Star-Chamber 293 MILLER against REIGNOLDS and BASSET SIr Henry Mountagu the Kings Serjeant did informe the Lords in the Star-Chamber How that the Defendants had conspired and practised Malitiosè to draw the Plaintiffs life in question being a man of One thousand Pounds per annum and otherwise very rich The Case was shortly thus Basset the Defendant was Tenant unto the Plaintiffe of a house in R. in Kent rendring a Rent the rent was behind and the Plaintiff demanded his Rent of him the Defendant told him That he was not able to satisfie him the Rent but he promised to give unto the Plaintiffe all his Goods in satisfaction of the Rent or so many of them as should countervaile the Rent and it was agreed betwixt the Plaintiff and the Defendant Basset that the Goods should be apprised by two men which was done accordingly and the Plaintiff came to the Defendants house at the time the said Goods were apprised but it was deposed and proved did not go out of the room where the apprisement was made at the time he was in the said house which was the 10 of May 7. Jacobi ar Afterwards the Defendants Reignolds being an Atturny at Law and Basset did conspire to accuse the Plaintiffe because that when he came to the Defendant Bassets house at the time of the apprising of the said Goods that the Plaintiffe went up into an upper Chamber in the said house and broke up a Chest and out of the same took a Gold Ring 10. s. in Money and the Defendant Bassets Lease of his house and thereupon brought the Plaintiff before divers Justices of the Peace who upon Examination of the matter found no ground of suspicion against the Plaintiff and therefore they did not bind him over to the Sessions to answer the same Accusation After this the Defendants made severall motions to the Plaintiff that he would give unto them 300l. and so he should be acquitted and there should be no proceeding against him and because the Plaintiffe refused so to do they told him that divers Courtiers had begged his Estate of the King and that the same was granted unto them when as in truth there was not any thing moved to any Courtier of any such matter but all this was said in a shew only to the end they might get great sums ef mony from him And in that matter they layed the scandall upon S. Rob. Car then Viscount Rochester that he was made privy to it who then was the Kings Maj. great Favorite And when all this could not prevail to gain any Composition from the Plaintiff the Defendants did prefer a Bill of Indictment at the Assizes in Kent against the Plaintiff and there upon Evidence given unto the Grand Jury they found an Ignoramus upon the Bill and divers other plots and divises were contrived by the Defendants all to the end the Plaintiff might lose his life his estate And this matter came to Sentence before the Lords and the Bill proved in every point and circumstance as well by the confession of the Defendants themselves as by divers writings depositions of witnesses and letters read and shewed in open Court and it was said by the whole Court of Lords in this case that this was a very great offence and an offence in Capite and that if such
thing and shall he be bound by a Conveyance Anno. 16. H. 6. then in the time of Civil War Uses began and of Lands in use the Lord Chief Baron Tanfield in his Argument hath cited diverse cases where the lands in use were subject and lyable to the debt of Cestuy que use in the Kings Case and so was it untill the Statute of 27. H. 8. of Uses was made Babbington an Officer in the Exchequer had lands in the hands of Feoffees upon Trust and a Writ issued out and the lands were extended for the Debt of Babbington in the hands of his Feoffees Sir Robert Dudley having lands in other mens hands upon Trusts the lands were seized into the Kings hands for a contempt and not for debt or damages to the King And in this Case although that the â—nquisition do find the Conveyance but have not found it to be with power of Revocation yet the Land being extended it is well extended untill the contrary doth appear and untill the extent be avoided by matter of Record viz. by Plea as the Lord Chief Baron hath said before Ley Chief Justice of the Kings Bench argued the same day and his Argument in effect did agree with the other Justices in all things and therefore I have forborne to report the same at length And it was adjudged That the Extent was good and the Land well decreed accordingly Pasch 21 Jacobi in the Exchequer Chamber 417. The Lord SHEFFIELD and RATCLIFF'S Case IN a Writ of Error brought to reverse a Judgment given in a Monstrans de Droit in the Court of Pleas The Case was put by Glanvile who argued for Ratcliffe the Defendant to be this 2 E. 2. Malew being seised of the Mannor of Mulgrave in Fee gave the same to A. Bigot in tail which by divers discents came to Sir Ralph Bigot in tail Who 10 Jannarii 6 H. 8. made a Feoffment unto the use of â—is last Will and thereby after his Debts paid declared the use unto his right heirs in Fee and 9. H. 8. dyed The Will was performed Francis Bigot entred being Tenant in tail and 21 H. 8. made a Feoffment unto the use of himself and Katherine his wife and to the use of the heirs of their two bodies Then came the Statute of 26 H. 8. cap. 13. by which Tenant in tail for Treason is to forfeit the Land which he hath in tail Then the Statute of 27 H. 8. of Uses is made Then 28 H. 8. Francis Bigot did commit Treason And 29 H. 8. he was attainted and executed for the same Anno 31 H. 8. a private Act of Parliament was made which did confirm the Attaindor of Francis Bigot and that he should forfeit unto the King word for word as the Statute of 26 H. 8. is saving to all strangers except the Offendor and his heirs c. 3 E. 6. The heir of Francis Bigot is restored in blood Katherine entred into the Mannor and dyed seised 8 Eliz. their Issue entred and married with Francis Ratcliffe and had Issue Roger Ratcliffe who is heri in tail unto Ralph Bigot And they continue possession untill 33. Eliz. And then all is found by Office and the Land seised upon for the Queen who granted the same unto the Lord Sheffield Francis Bigot and Dorothy die And Roger Ratcliffe sued a Monstrans de Droit to remove the Kings hands from off the lands and a Scire facias issued forth against the Lord Sheffield as one of the Terre-Tenants who pleaded all this special matter and Judgment was thereupon given in the Court of Pleas for Roger Ratcliffe And then the Lord Sheffield brought a Writ of Error in the Exchequer-Chamber to reverse the said Judgment And Finch Serjeant argued for the Lord Sheffield that the Judgment ought to be reversed And now this Term Glanvile argued for Roger Ratcliffe that the Judgment given in the Court of Pleas ought to be affirmed There are two points The first If there were a Right remaining in Francis Bigot and if the same were given unto the King by the Attaindor and the Statute of 31 H. 8. Second If a Monstrans de Droit be a proper Action upon this matter which depends upon a Remitter for if it be a Remitter then is the Action a proper Action The Feoffment by Ralph Bigot 6 H. 8. was a Discontinuance and he had a new use in himself to the use of his Will and then to the use of his Heirs Then 9 H. 8. Ralph Bigot dyed And then Francis Bigot had a right to bring a Formedon in the Discendor to recover his estate tail 21 H 8. then the point ariseth Francis Bigot having a right of Formedon and an use by force of the Statute of 1 R. 3. cap. 1. before the Statute of 27 H. 8. by the Feoffment he had so setled it that he could not commit a forfeiture of the estate tail When a man maketh a Feoffment every Right Action c. is given away in the Livery and Seisin because every one who giveth Livery giveth all Circumstances which belongs to it For a Livery is of that force that it excludes the Feoffor not only of all present Rights but of all future Rights and Tytles v. C. 1. par 111. and there good Cases put to this purpose 9 H. 7. 1. By Livery the Husband who was in hope to be Tenant by Courtesie is as if he were never sised 39 H. 6. 43. The Son disseiseth his Father and makes a Feoffment of the lands the Father dyeth the hope of the heir is given away by the Livery It was objected by Serjeant Finch 1. Where a man hath a right of action to recover land in Fee or an estate for life which may be conveyed to another there a Livery doth give away such a Right and shall there bind him But an estate in tail cannot be transferred to another by any manner of Conveyance and therefore cannot be bound by such a Livery given I answer It is no good Rule That that which doth not passe by Livery doth remain in the person which giveth the Livery 19 H. 6. Tenant in tail is attainted Office is found The estate tail is not in the King is not in the person attainted but is in abeyance So it is no good Rule which hath been put When Tenant in tail maketh a Feoffment Non habet jus in re neque ad rem If he have a Right then it is a Right of Entre or Action but he cannot enter nor have any action against his own Feoffment 19 H. 8. 7. Dyer If Discontinuee of Tenant in tail levieth a Fine with proclamations and the five years passe and afterward Tenant in tail dyeth his issue shall have other five years and shall be helped by the Statute for he is the first to whom the right doth accrue after the Fine levied for Tenant in tail himself after his Fine with Proclamations hath not any right But if Tenant in tail be
Tenements of one attainted in a Premunire shall be forfeited to the King Yet Tenant in Tail in such Case did not forfeit his Lands C. 11. part 63. b. as the Statute of West 2. Cap. 1. saith in particular words That Tenant in Tail shall not prejudice his issue Therefore the Statute of 26. H. 8. in particular words saith That Tenant in Tail shall forfeit his Lands for Treason The Right of Francis Bigot is not a right in gross but a Right mixed with a possession The Statute of West 2. Cap. 1. brought with it many mischiefs For by that Statute the Ancestor being Tenant in Tail could not redeem himself out of prison nor help his wife nor his younger children and that mischief continued untill 12. E. 4. Taltaram's Case and then the Judges found a means to avoid those mischiefs by a common Recovery and this Invention of a common Recovery was a great help to the Subject Then came the Statute of 32. H. 8. Cap. 36. which Enacted That Fines levied by Tenant in Tail should be a good barr to the issue of any Estate any way entailed If the Son issue in tail levieth a Fine in the life of his Father who is Tenant in tail it shall be a barr to him who levieth the Fine and to his issues And both these viz. the Common Recovery and the said Statute did help the Purchaser And shall not this Statute of 26. H. 8. help the King The Statute of 26. H. 8. Cap. 13. hath not any strength against the Ancestor but against the Child For the Construction of Statutes I take three Rules First When a Case hapneth which is not within the Letter then it is within the intent and equity of the Statute Com. 366. 464. Secondly All things which may be taken within the mischief of the Statute shall be taken within the Equity of the Statute 4. H. 6. 26. per Martin Thirdly When any thing is provided for by a Statute every thing within the same mischief is within the same Statute 14. H. 7. 13. The Estate tail of Francisâ— Bigot and Katharine his wife is forfeited by the Statute of 26 H. 8. There is a difference when the Statute doth fix the forfeiture upon the person As where it is enacted that J. S. shall forfeit his lands which he had at the time of his Attaindor The Judges ought expound that Statute only to J. S. But the Statute of 26 H. 8. doth not fix the forfeiture upon the person but upon the land it self And Exposition of Statutes ought to extend to all the mischiefs 8 Eliz. Sir Ralph Sadler's Case in B. R. where an Act of Parliament did enact That all the lands of Sadler should be forfeited to the King of whomsoever they were holden Sadler held some lands of the King in that case the King had that land by Escheat by the Common-Law and not by the said Statute Com. 563 The Law shall say that all the rights of the tail are joyned together to strengthen the estate of the King Tenant in tail before the Statute of 1 E. 6. cap. 14. of Chauntries gave lands to superstitious uses which were enjoyed five years before the said Statute of 1 E. 6. made Yet it was adjudged that the right of the issue was not saved but that the land was given to the Crown for the issue is excluded by the saving in the said Statute If Tenant in tail give the lands to charitable uses the issue is barred For the saving of the Statute of 39 Eliz. cap. 5. excludes him And he is bound by the Statute of Donis So the Statute of 26 H. 8. cap. 13. and the private Act of 31 H. 8. do save to all but the heirs of the Offenders The third Objection was That Ratcliffe was not excluded by the saving for it was said That the same doth not extend but to that which is forfeited by his Ancestors body And here Ratcliffe had but a Right and that was saved And the Statute doth not give Rights I answer first The Statute of 26 H. 8. is not to be expounded by the letter for then nothing should be forfeited but that only which he had in possession and use Tenant in tail is disseised and attainted for treason By the words of the said Statute of 26 H. 8. he forfeits nothing yet the issue in tail shall forfeit the lands for the issue in tail hath a right of Entrie which may be forfeited 6 H. 7. 9. A right of Entrie may escheat and then it may be forfeited Secondly The Statute is not to be construed to the possession but if he hath a mixt right with the possession it is forfeited but a right in grosse is not forfeited Tenant in tail of a Rent or Seignorie purchaseth the Tenancie or the Land out of which the Rent is issuing and is attainted He shall forfeit the Seignorie and Rent or the Land for the King shall have the Land for ever And then the Seignorie or Rent shall be discharged for otherwise the King should not have the Land for ever For the King cannot hold of any Lord a Seignorie 11 H. 7. 12. The heir of Tenant in tail shall be in Ward for a Meanaltie descended unto him the Meanaltie not being in esse and yet it shall be said to be in esse because of the King C. 3 part 30. Cars Case Although the Rent was extinguished yet as to the King it shall be in esse The difference is betwixt a Right clothed with a possession and a right in grosse viz. where the Right is severed from the possession there it is in grosse For there the Right lieth only in Action and therefore neither by the Statute of 26 H. 8. nor by the private Act of 31 H. 8. such a Right is not forfeited C. 3. part 2. C. 10. part 47 48. Right of Action by the Common-Law nor by Statute-Law shall escheat and therefore it is not forfeited For no Right of Action is forfeitable because the right is in one and the possession in another Perkins 19. A Right per se cannot be charged 27 H. 8. 20. by Mountague A man cannot give a Right by a Fine unless it be to him who hath the possession C. 10. part Lampits Case Sever the possibility from the right and it doth not lie in grant or forfeiture but unite them as they are in our Case and then the Right may be granted or forfeited for that Right clothed with a possession may be forfeited A Right clothed with the possession 1. It tastes of the possession 2. It waits upon the possession 3. It changes the possession The Bishop of Durham hath all Forfeitures for Treason by the Common-Law within his Diocess viz. the Bishoprick of Durham And if Tenant in tail within the Bishoprick commits Treason and dyeth the Issue in tail shall enjoy the land against the Bishop Dyer 289 a. pl. 57. For the Bishop hath not the land for ever but the Issue
E. 3 17 a. Persay Executors cannot make a Feoffment but they ought to make a Sale and the Vendee viz. the Bargainee is in without Livery and Seisin But if they do make a Feoffment by the Livery all their right is given away But if an Attorney giveth Livery in the name of his Master nothing of his own right to the same Land is given away by the Livery and Seisin but if he maketh Livery in his own name then he giveth away his own right and the Statute of 1 R. 3. cap. 1. maketh the Feoffment good which is made by Cestuy que use against him and his heirs C. 1. pt 111. By Livery and Seisin his whole right is given away Com. 352. The Feoffees of Cestuy que use are disseised the Disseisor enfeoffeth Cestuy que use who enfeoffs a stranger And the Question was If by this Feoffment made by Cestuy que use the right of the first Feoffees were determined and extinct Fitzherbert held that the right was gone and in that case the Uses were raised after 1 R. 3. and before 27 H. 8. cap. 10. Although Yelverton held that it was meant of a Feoffment before the Statute of 1 R. 3. Jus recuperandi was in Francis Bigot Then the question is Whether this Right were given away by the Statutes of 26 31 H. 8. The Statute of 26 H. 8. 31 H. 8. are several and distinct Statutes The words of the Statute of 26 H. 8. are That the party offending shall forfeit all his Possession and Vse but there is no word of Right in the Statute and that Statute doth not extend to give any land but that which was in possession or use And the cause was because before that Statute of 26 H. 8. Uses were not given unto the King for Attaindor for Treason they being but a Trust and Confidence C. 11. part 36 b. The Statute sayes By any wayes title or means But observe when this Statute was made It is a penal Statute and therefore shall be taken strictly Stamford 129 b. C. 11. part 36 b. The Statute of 5 6 E. 6. takes away Clergy but if a stranger be in the house by licence of the Owner the party shall have his Clergy because out of the words and being a penal Law it shall be taken strictly The Statute of 33 H. 8. cap. 20. forfeits for Treason Right to the Land viz. right of Entry but the Statute of 26 H 8. giveth not any Right Before the Statute of 33 H. 8. a right of Entry was not given to the King for Treason à fortiori a right of Action was not forfeited to the King It is the Statute of 31 H. 8. the private Act which hurteth us which expresly gave Rights But this Right in our Case is not forfeited by this Statute which giveth Rights which a man hath But in our Case Francis Bigot had not the Right but the Right was in abeyance Statutes in points of Forfeiture forfeit no more then a man hath But yet a Statute may give to the King that which a man hath not C. 11. part 13. The statute of Monasteries gave that to the King which was not viz. Monasteries in reputation saving to none but strangers no not to the Donors Hussies Case Tenant in tail doth bargain and sell to the King and a statute gave it to the King saving to strangers but neither the Donor nor his issue were within the saving Old Entries 423. b c d. It was enacted That the Duke of Suffolk should forfeit for Treason all his Lands Rights and Tenements and all such Rights and Titles of Entry which he had But thereby rights of Action were not given to the King but only rights of Entries The statutes of 31 33 H. 8. are alike in words If Tenant in tail the Remainder over forfeit c. the Remainder is saved without words of saving But if the statute giveth the land by name unto the King then the Remainder is not saved but is destroyed If a Right of Action be given unto the King the statutes of Limitation and Fines are destroyed for he is not bound by them C. 485 486. in point of forfeiture Stamf. 187 188. There is a difference betwixt real and personal Rights given to the King C. 3. part 3. A right of Action concerning Inheritances are not forfeited by Attaindor c. But Obligations Statutes c. are forfeited by Attaindor C. 7. part 9. A right of Action is not given to the King by general words of an Act because it lieth in privity And it would be a vexation to the subject if they should be given C. 4. pt 124. Although that a Non compos mentis cannot commit Felony yet he may commit Treason for the King is Caput salus reipublicae If Non compos mentis maketh a Feoffment and then committeth Treason the King shall not have an Action to recover the Land of the Non compos mentis as the party himself may have But if Non compos mentis be disseised and then be attainted of Treason then the King may enter into the Lands because the party himself had a right of Entry which is given to the King It was objected That a right of Action clothed with a possession might be given to the King Tenant in tail discontinues and takes back an estate and is attainted of Treason This right of Action shall not be forfeited to the King for his right of Action was to the estate tail In our Case the right of Action was to Katherine for she was Tenant for life The Attaindor was 29 H 8. and the Act which forfeited the Right was made 31 H. 8. and then the right and possession were divided 30 H. 6. Grants 91. The King may grant the Temporalties of a Bishop before they happen to be void And so he may grant a Ward But the King cannot grant the Lands of J. S. when he shall be attainted of Treason for the Law doth not presume that J. S. will commit Treason The Devise of a Term the Remainder over is good But if the Devise be of a Term to one in tail the Remainder over the Remainder is void because the Law doth presume that an estate in tail may continue for ever C. 8. part 165 166. The Law did not presume that Digby at the time of the Conveyance intended to commit Treason It was objected That whatsoever may be granted may be forfeited I deny that C. 3. part 10. by Lumley's Case If the issue in tail in the life of his Father be attainted of high Treason and dyeth it is no forfeiture of the estate tail But if the issue in tail levieth a Fine in the life of his Father it is a bar to his issues C. 3. part 50. Sir George Brown's Case 10 E. 4. 1. there Executors may give away the goods of the Testator but they cannot forfeit the goods of their Testator Com. 293. Osborns Case Guardian in
Soccage may grant the Ward but he cannot forfeit him C. 3. part 3. Right of Actions reals because they are in privity by general words of a Statute are not given to the King v. Dyer 67. String fellow's Case That which is in custodia Legis cannot be taken as a Distress in a Pound overt cannot be taken out of the Pound upon another Distress The third Point is If he were remitted And I conceive that he was remitted When Tenant in tail is attainted of Treason the issue at the Common Law should inherit as if he had not been attainted Lit. 747. C. 1. part 103. for as to the Estate tail there was no corruption of blood C. 10. part 10. If Tenant in tail before the Statute of 26. H. 8. commit Treason the land shall discend to his issue for the issue doth not claim by the Father but per formam doni◠C. 8. part 166. such a discent shall take away entrie But in our Case Ratcliff had both possession and right and therefore is remitted the speciall Verdict finds that he was remitted and the Judgment given in the Court of Pleas in the Exchequer was that he was remitted It was objected that the Remitter was destroyed by the relation of the Office but the same is not so for the Office relates only to avoid Incombrances viz. acts done by himself but to devest the Freehold and to settle the same in the King the Office shall not relate And if it should relate then the King should lose many Lands which he now hath Com. Nichols Case Tenant for life upon condition to have Fee c. If the Office shall relate then the same takes away the Freehold out of the person attainted à principio and then the Fee cannot accrue and so by that means the King should lose the lands A Remitter is no incombrance for it is an ancient right and the Act of the King cannot do wrong C. 1. part 44. b. 27 Ass 30. There Tenant for life with clause of re-entrie is attainted the reversioner entreth the Office shall not relate to take the Freehold out of the reversioner C. 3. part 38. Relatio est fictio juris and shall never prejudice a third person and the Office found in the life of Katherine shal not prejudice him C. 9. part Beamounts Case the husband and wife are Tenants in tail the husband is attainted of Treason and dyeth yet the wife is tenant in tail when it is not to the damage or prejudice of the King there tempus occurrit Regi C. 7. part 28. Baskervile's Case From 29 H. 8. untill 33 H. 8. Katherine and afterwards Ratcliff had the possession and then the Law was taken to be that Ratcliff had a lawfull possession For these reasons he concluded that the Judgment ought to be affirmed In Trinity Term following viz. Trin. 21. Jacobi Regis the Case was argued again and then Coventry the Kings Attorney general argued for the Lord Sheffield That the Judgment given in the Court of Pleas in the Exchequer ought to be reversed He said I will insist only upon the right of the Case Whether upon the right of the Case Ratcliff may maintain a Monstrans de Droit First If by the Attainder the right of the old Estate tail as well as of the new Estate tail be forfeited Secondly Admitting that the old right of entail be not forfeited then if the Office do overreach the Remitter for then a Monstrans de Droit doth not lie but a Petition for the reason of the discontinuance First it is evident that when Ralph Bigot Tenant in tail in possession 6 H. 8. made a Feoffment that that was a discontinuance and it is as clear that the right of the old Estate tail vested in Francis Bigot The Feoffment made by Francis Bigot 21 H. 8. did not devest the right of the old tail First for the weaknesse of the Feoffment Secondly for the inseparableness of the Estate tail which is incommunicable and not to be displaced by weak assurance That Feoffment was made according to the Statute of 1 R. 3. and not by the Common Law but only by force of the said Statute The Feoffment is without Deed and so nothing passeth but only by way of Livery or else nothing at all Also at the time of the Feoffment in 21 H. 8. the Feoffees were in seisin of the Lands and Ratcliff shews in his Monstrans de Droit that Francis Bigot did disseise the Feoffees and so the Feoffment had no force as a Feoffment at the Common Law but only by the Statute of 1 R. 3. For at the Common-Law if Cestuy que use had entred upon the Feoffees and made a Feoffment nothing had passed There is a difference betwixt a Feoffment at the Common Law and a Feoffment according to the Statute of 1 R. 3. which operates sub modo Feoffments are the ancient Conveyances of Lands but Feoffments according to the Statute of 1 R. 3. are upstarts and have not had continuance above 150 years In case of Feoffments at the Common Law the Feoffor ought to be seised of the lands at the time of the Feoffment but if a Feoffment be according to the Statute of 1 R. 3. in such Case the Feoffor needeth not be in possession Feoffments at the Common Law give away both Estates and Rights but Feoffments by the Statute of R. 3 give the Estates but not the Rights In case of Feoffment at the Common Law the Feoffee is in the Per viz. by the Feoffor but in case of Feoffments by the Statute of R. 3. the Feoffees are in in the Post viz by the first Feoffees 14 H. 8 10. Brudnel says that a Feoffment by Cestuy que use by the Statute of 1 R. 3 is like to fire out of a flint so as all the fire which cometh out of the flint will not fasten upon any thing but tinder or gunpowder So a Feoffment by Cestuy que use by force of the Statute of 1 R. 3 will not fasten upon any thing but what the Statute requires 5 H. 7. 5. 21 H. 7. 25. 8 H. 7 8. 27 H. 8. 13. 23. by these books it appeareth that if Cestuy que use maketh a Leafe for life during the Lease he gaines nothing and after the Lease he gains no reversion for the Lessee shall hold of the Feoffees and of them he shall have aid and unless it be by deed Indented in such a Case a Reservation of Rent is void and the Lessor in such a Case cannot punish the Lessee for waste for he makes the Lease meerly by the power which the Statute gives him 8. H. 7. 9. Cestuy que use makes the Feoffment as servant to the Feoffees and if not as servant to the Feoffees yet at least as servant to the Statute of 1 R. 3. If a man entreth upon another and maketh a Lease for life he gains a reversion to himself and shall maintain an Action of Waste but
be quashed and exonerated and discharged in the possession of the King For it is out of the Rule which is in C. 10 part 48 for the cause of quieting and repose of the Terre-Tenants otherwise it would be a cause of Suits But all Rights Tythes Actions c. might for the same reasons viz. for the quiet of the Terre-Tenants and the avoidance of Suits and Controversies be released to the Terre-Tennants By the same reason here the right of Action of Francis Bigot shall be discharged and exonerated by this forfeiture viz. for the quiet and repose of the Terre-Tenants for the Law delights in the quiet and repose of the Terre-Tenants If Francis Bigot had granted a Rent the ancient right of the tail had been charged C. 7. part 14. Where Tenant in tail makes a lease for life and grants a Rent charge and Tenant for life dieth he shall not avoid his charge although he be in of another Estate because he had a defeisible possession and an ancient right the which c. so as they could not be severed by way of conveyance and charge and no lawfull act Then I admire how he will sever this from himself by his unlawfull act viz. the Feoffment the discontinuance Lit. 169. If a man commit Treason he shall forfeit the Dower of his wife yet he doth not give the dower of his wife but it goes by way of discharge in those Lands 13 H. 7. 17. Tenant by the Curtesie in the life of his wife cannot grant his Estate of Tenant by the Curtesie to another but yet he for Felony or Treason may forfeit it viz. by way of discharge A Keeper of a Park commits Treason there the King shall not have the Office of Keeper for a forfeiture because it is an Office of trust but if he had been Keeper of the Kings Park and had been attainted there he should forfeit his Office by way of discharge and exoneration This Statute of 26 H. 8. hath been adjudged to make Land to revert and not strictly to forfeit Austin's Case cited in Walsingham's Case Tenant in tail the reversion in the King the Tenant makes a Lease for years and dies the issue accepts of the Rent and commits Treason the Lease is avoided for the King is not in by forfeiture by the Statute of 26 H. 8. but by way of Reveter by the Statute of 26 H. 8. It was objected that if Tenant in tail maketh a Feoffment and takes back an Estate for life and is attainted of Treason that he shall not forfeit his old right I agree that Case For indeed it is out of the Statute of 26 H. 8. which speaks of Inheritance and in that Case the Tenant hath but a Freehold The Statute of 26 H 8. saith that it shall be forfeited to the King his heirs and Successors And if in our Case the old right should remain then it should be a forfeiture but during the life of the Testator When the Common Law or Statute Law giveth Lands it gives the means to keep them as the Evidences So here the King is to have by force of this Statute of 26 H. 8. the Evidences The forfeiture of right is expresly within the Statute of 26 H. 8. as the forfeiture of Estate as by any right title or means for the old Estate tail is the means of Estates since 6 H. 8. And if you will take away the Foundation the Building will fall For all the Estates are drawn out of the old Estate tail The Statute of 26 H. 8. is not an Act of Attaindor for none in particular is attainted by the Act but the Act of 31 H. 8. doth attaint Francis Bigoâ— in particular It was objected that here in this case there needed not to be any express Saving I answer that there are divers Statutes of Forfeitures yet the Statutes have Savings in them so as it seems a saving in such Acts were not superfluous but necessary The Act of 33 H. 8. for the attainder of Queen Katharine there is a saving in the Act and yet an Act of Forfeiture Dyer 100. there the land vested in him in the Remainder by force of a saving in the Act so the saving is not void but operative C. 3. part Dowlies Case vid. the Earl of Arundels Case there the saving did help the wife so it appears savings are in Acts of Parliaments of Forfeiture and Acts of Attaindor Dyer 288 289. The Bishop of Durham had Jura Regalia within his Diocese and then the Statute of 26 H. 8. came now whether the Forfeiture for Treason should be taken away from the Bishop by reason of that Statute and given to the King was the doubt It was holden that of new Treasons the Bishop should not have the Forfeitures for those were not at the Common Law as the Forfeitures of Tenant in tail but that he should have the Forfeitures of Lands in Fee within his Diocese and that he had by force of the saving in the Statute so that a Saving is necessary and operative Com. Nichols's Case there Harpers opinion that there needs no saving to strangers but yet a saving is necessary for the Partie and the Issue if they have any thing as well as strangers vid. C. 3. part Lincoln Colledg Case It is the Office of a good Interpreter to make all the parts of a Statute to stand together Com. 559. By these general words Lose and Forfeit and by excluding of the heir in the saving the heir is bound So the Judges have made use of a Saving for it is operative 2 Ma. Austin's Case cited in Walsinghams Case Tenant in tail the Reversion in the Crown Tenant in tail made a Lease for years and levied a Fine to the King the King shall not avoid the Lease for the King came in in the Reverter but in such Case if he be attainted of Treason then the King shall avoid the Lease So a Statute of Forfeiture is stronger then a Statute of Conveyance By this Statute of 26 H. 8. Church Land was forfeited for so I find in the Statute of Monasteries which excepts such Church Lands to be forfeited for Treason Dyer Cardinal Poole being attained did forfeit his Deanary and yet he was not seised thereof in jure suo proprio for it was jus Ecclesiae 27 E. 3. 89. A writ of Right of Advowson by a Dean and he counteth that it is Jus Ecclesiae and exception that it is not Jus suae Ecclesiae But the Exception was disallowed for the Jus is not in his natural capacitie but in his politique capacitie and yet by this Statute of 26 H. 8. such Church Land was forfeited for Treason this is a stronger Case then our Case Vide C. 9. part Beaumont's Case Land is given to husband and wife in tail and the husband is attainted of Treason the wife is then Tenant in tail yet the Land is forfeited against the issue although it be but a possibility for the whole estate
pay the money there he shall recover damages besides the dutie Here the Action was brought before the request made and so no damage to the Plaintiff and the Judgment was that the Plaintiff recuperet damna predict viz. the damages laid in the Declaration Dodderidge Justice The Judgment ought to be Consideratum est quod Gleede recuperet damna quae sustinuit and not damna predict which are mentioned in the Declaration and then a Writ is awarded to enquire of the damages quae sustinuit The Judgment was reversed per Curiam Mich. 1 Caroli in the Kings Bench. Rot. 189. 455. TAYLOR and HODSKIN's Case IN an Ejectione firme upon a special Verdict it was found That one Moyle was seised of divers Lands in Fee holden in Socage and having issue four daughters viz. A B C D. A. had issue N. and died And afterwards Moyle devised the said Lands unto his wife for life and after her decease then the same equally to be divided amongst his daughters or their heirs Moyle died and afterwards his wife died and Hodskins in the right of B C D. three of the daughters did enter upon the Lands N. the daughter of A. married F. who entred and leased the Lands to the Plaintiff Taylor Whitfield for the Plaintiff The only point is Whether N. the daughter of A. one of the sisters shall have the fourth part of the lands or not by reason of the word Or in the Will It is apparent in our books C. 10. part 76 the Chancellor of Oxfords Case C. 3. part Butler and Bakers Case That Wills shall be construed and taken to be according to the intent of the Devisor And therefore Br. Devise 39. A devise to one to sell to give or do with at his will and pleasure is a Fee-simple And in our Case if N. shall not take a fourth part the word heirs should be of no effect C. 1. part in Shellies Case All the words in a Deed shall take effect without rejecting any of them and if it be so in a Deed à fortiori in a Will which is most commonly made by a sick man who hath not Councell with him to inform or direct him In this Case the three sisters who were living at the time of the Devise took presently by way of remainder and the word heirs was added only to shew the intent of the Devisor That if any of the three sisters had died before his wife that then her heir should take by discent because her mother had taken by purchase And by reason of the word heirs the heir of A. shall take by purchase and the disjunctive word or shall be taken for and as in Mallories Case C. 5. part A reservation of a Rent to an Abbot or his Successors there the word or shall be taken for and reddendo singula singulis Trin. 7. Jacobi in the Common Pleas Arnold was bound in a Bond upon Condition that he suffer his wife to devise Lands of the value of 400l to her son or her daughter and she devised the Lands to her son and her daughter And it was resolved that it was a good performance of the Condition And there the word or was taken for and And there Justice Warburton put this Case If I do devise all my goods in Dale or Sale it shall be a Devise of all my goods in both places and or shall be taken for and. In this Case the word heirs was not added of necessity for the heir of any of the sisters to take by purchase but only to make the heir of A. to take part of the Lands The Court was of opinion that it was stronger for the Plaintiff to have it or in the disjunctive For they said that if it were and then it would give the three sisters the Fee and not give the heir of A. a fourth part but being or there is more colour that she shall take a fourth part by force of the Devise It was adjourned Trin 2 Caroli Rot 913. in the Kings Bench. 456. ASHFIELD and ASHFIELD's Case THe Case was An Enfant Copyholder made a Lease for years by word not warranted by the Custome rendring Rent The Enfant at his full age was admitted to the Copyhold and afterwards accepted of the Rent The question was Whether this Lease and the acception of the Rent should bind or conclude the Enfant Crawley Serjeant argued That it was a void Lease and that the acception should not bar him It is a ground in Law That an Enfant can do no Act by bare contract by word or by writing can do any Act which is a wrong either to himself or unto another person or to his prejudice In this Case if the Lease should be effectual it were a wrong unto a stranger viz. the Lord and a prejudice unto himself to make a forfeiture of the Inheritance If an Enfant commandeth A. to enter into the land of I. S. and afterwards the Enfant entreth upon A. A is the Disseisor and Tenant and the Enfant gaineth nothing So if A entreth to the use of the Enfant and the Enfant afterwards agreeth to it in this Case here is but a bare contract and an agreement will not make an Enfant a Disseisor No more shall he be bound by a bare Deed or matter in writing without Livery 26 H. 8. 2. An Enfant granteth an Advowson and at full age confirmeth it all is void Br. Releases 49. Two Joynt-Tenants one being an Enfant releaseth to his Companion it is a void Release 18 E. 4. 7. An Enfant makes a Lease without reserving Rent or makes a Deed of grant of goods yet he shall maintain Trespass nay though he deliver the goods or Lease with his own hand the same will not excuse the Trespass nor will it perfect the Lease or make the grant of the goods good If the Contract have but a mixture of prejudice to the Enfant it shall be void ◠Jacobi in the Kings Bench Bendloes and Holydaies Case An Obligation made by an Enfant with a Condition to pay so much for his apparel because the Bond was with a penaltie it was adjudged void If Tenant at Will make a Lease for years he was a Disseisor at the Common Law before the Statute of West 2. cap. 25. 12 E. 4 12. Tenant at Will makes a Lease for years 10 E. 4. 18. 3 E. 4. 17. But if an Enfant be Tenant at will and he maketh a Lease he is no Disseisor In our Case if he had made Livery then I confess it had been a defeisible forfeiture and he mignt have been remitted by his entrie upon the Lord. Farrer for the Plaintiff The Lease is not void but voidable 7 E. 4. 6. Brian 18 E. 4. 2. 9 H. 6. 5. An Enfant makes a Lease for years and at full age accepts of the Rent the Lease is good because the Law saith that he hath a recompence Com. 54. A Lease for years the remainder
have Attaint 44 E. 3. b. 7. But if he be not partie to the Writ he shall not maintain Attaint as if he pretend Joynt-Tenancy with a stranger who is not named and the verdict pass against him he shall not have attaint But Jones Justice said that he might have Attaint Admit the first Feoffee viz. C. might have a Writ of Error yet Brooker in this case cannot because he is the second Feoffee and a Writ of Error is a thing in Action and not transferable over C. 3. part The Marquiss of Winchesters Case C. 1. part Albanies Case One recovers against A. who makes a Feoffment to B. neither the Feoffee nor Feoffor shall have Error for he viz. B. comes in after the title of Error and the Feoffor shall not have the Writ of Error because he is not a partie griev'd 34 Eliz. in the Common Pleas. Sherrington and Worsleys Case Sherrington had Judgment against Worsley and afterwards acknowledged a Statute to B. Sherrington sued forth Execution B. brought Error upon the Judgment and it was adjudged that it would not lie First because he was a stranger Secondly because he came in under and after the title of Error See the reason C. 3. part the Marquiss of Winchesters Case where it is said that a Writ of Error is not transferrable This Attaindor doth not work upon the Land and so it doth not make the Terre-Tenant privy but it works upon the person and blood of Henry Isley the Land is not touched For Henry Isley was attainted in the life of his Father and so it did not touch the Land For if Henry Isley had died without issue in the life of his father the youngest son should have had the Land by discent which proves that it works not upon the Land but upon the person Bankes for the Plaintiff and he desired that the Outlawrie might be reversed As this Case is there is no other person who can maintain Error Henry Isley had his pardon before the Outlawrie but he came not in to plead it and now having enjoyed it so long a time we hope a Purchasor shall be favoured before him who beggs a concealed title The first Exception was taken To the Devise by a person attainted I answer That that is but the conveyance to the Writ of Error Secondly it was said that none but privies or parties could maintain Error and the adverse partie would disable the heir on the part of the Mother and by Custome Thirdly he would disable the Feoffees and make them as strangers First the Outlawrie was 20 Eliz. against Henry Isley which was after the seisin of the Land and Brooker is a party able to bring a Writ of Error being the heir of the purchasor Error and Attaint go with the Land 13 H. 4 19. Dyer 90. Br. Cases 337. But Estopels and Conditions go to the heir Fitz. 21. Error brought by a special heir It is not necessary that alwaies the heir and partie to the Record have the Writ of Error but sometimes he who is grieved by the Record A Scirefacias is a Judicial Writ founded upon a Record and hath as much in privity is Error and yet a stranger to the Record shall have it 16 H. 7. 9. The heir of the purchasor brought a Scirefacias to execute a Fine It was objected that he was not a partie to the Record but it was resolved in respect he was to have the benefit that he was a sufficient person to maintain the Writ 17 Ass 24. 18 E. 3. 25. Execution was upon a Statute before the time that it ought to have been and a Feoffee brought Error It was objected that he was not partie nor privie to the Record yet because he was was grieved by the Execution he did maintain the Writ of Error Trin. 34 Eliz. in the Kings Bench Sherrington and Worsleys Case not rightly remembred Sherrington did recover in debt against Worsley who aliened the Land to Charnock afterwards an Elegit is awarded upon the Roll and Charnock brought Error and it was admitted good and Sherrington forced to plead to it Now in the principal Case we are the partie grieved by the Outlawrie and therefore may maintain the Writ 21 H. 6. 29. A Reversioner or he in the Remainder without aid prayer or Resc ' shall have a Writ of Error because they are damnified although they be not parties to the Record I agree that where one is not grieved by the Judgment there a stranger shall not have Error 21 E. 4. 23. A Recovery is in Debt and the Defendant is taken and escapes the Sheriff shall not have a Writ of Error for he is not grieved by the Record but by the escape 2 R. 3. 21. The Principal is Outlawed in Felony afterwards the Accessory is condemned he shall not have a Writ of Error to reverse the Outlawrie of the Principal for he is not grieved by that Outlawrie but by his own Condemnation Another Objection was because here was an Outlawrie against him and therefore he shall be disabled to sue I answer Our Writ of Error is brought to reverse that Outlawrie and we shall not be rebutted by that Outlawrie when we are to reverse it 7 H. 49 40. Error brought to reverse an Outlawrie the Defendant would have disabled the Plainfiff by another Outlawrie and it was not allowed because he seeks to avoid it 10 H. 7. 18. For the Mastership of an Hospital Exception was taken to the Writ because the Assise is brought to undoe the name of Master and therefore he ought not to name him Master 22 H. 6. 26. Abbot and Covent the Abbot is preferred and the Covent elected another Abbot And the Patron brought a Quare Impedit to defeat the Election It was ruled because he goes about to overthrow the Election he need not name him Abbot Garranty 29. and 18 E. 3. 8. â—o the same purpose The matter of devise is but conveyance to the Writ of Error and the Writ shall not be abated for surplusage 9 E. 4. 24. 7 E. 4. 19. Surplusage is no barr nor Estopel The Outlawriâ— was against Henry Isley and Peckham and wants these words Nec eorum alter comparuit Dodderidge Justice To say where a Feoffee shall have a Writ of Error is a large field If this Feoffee bring Error and reverse the Judgment he must restore the heir in blood and who can have a Writ of Error to restore blood but he who is privie in blood and that is the heir Jones Justice Marshes Case C. 8. part 111. was never adjudged There an Executor could not reverse an Attaindor by Outlawrie because it doth restore the blood The Case of Sherrington and Charnock was to reverse the Execution and not the Judgment An Executor shall have a general Writ of Error to reverse an Outlawrie It was adjourned Pasch 3. Car. in the Kings Bench. 466. GUNTER and GUNTER's Case A Writ of Error was brought to reverse a Judgment in the Court
for the Judgment was not given upon the verdict Pasch 25 H. 8. Rot. 25. Plot and his wife against Treventry in a Writ of Error after the Record removed Diminution of the Original was alledged and there it was pretended that the Judgment was given upon another Original and one of the Originals was before and the other after the Judgment and there the Judgment was reversed because it cannot appear to the contrary but that the Judgment was given upon the later Original Trin. 18 Jacobi Rot. 1613. Bowen and Jones's Case In an Action upon the Case brought upon Assumpsit Error assigned was because that no place was limited where the payment should be made The Original was That the promise was in consideration that the Plaintiff did lend to the Defendant so much he at London did promise to pay the same to him again There were two Originals which bore date the same day Judgment was in that Case for the Plaintiff And the Defendant brought a Writ of Error and alledged Diminution of the Original then the other Original was certified The Defendant in the Writ of Error said That the Original upon which the Recoverie was grounded was an Original which had a place certain The Judges did affirm the same to be the true Original which did maintain the Judgment and agree with the proceedings otherwise great mischief would â—ollow George Crook contrarie and recited the Case viz. Hayns brought a Writ of Error against Crouch and the Writ of Error is to reverse a Record upon a Judgment which was given in the Common Pleas The Original which is certified bears date Trin. 18 Jacobi and the Ejectione firme is brought Trin. 18 Jacobi for an Ejectment which is made in September following and now upon this Errour assigned the partie had a Certiorari to remove the Record upon which you alledge Diminution For you say That the Originall upon which the Judgment was given bore date in September 18. Jacobi which was after the Ejectment The bodie of the Record is Trin. 18. Contrary to this Record you say that there was an Originall Mich. 18 Jacobi and so that is contrary to the Record Error 2. upon the Record The Originall is not part of the Record but you ought to assigne Errour in that which is alledged in Diminution 6 H. 7. 4 Fitz. 21 a. To alledge any thing against a Record is void The Ejectment was after the Originall which warrants the Record and it was after the Action brought They alledge that the Originall was not truely certified and that then after an Imparlance an Originall Writ is made to Warrant the Action Jones and Bowâ—ns Case before cited There a vitious Originall was certified and then upon the Complaint of the Defendant the true Originall was certified both were retornable at the same day And in the Case before cited of Plott and Treventris The Originall which was first certified did not bear date according to the Record which was certified But in our Case the last Originall doth not agree with the Record but the first But in the Case of Plott the Judgement was reversed for another Error The Diminution when it stands with the Record shall be allowed but when it differs from the Record then it shall not be allowed The Ejectment was layed after the first Originall purchased which agrees with the Record and after the Action brought Quod nota It was adjuorned till another Terme viz. Mich. 21. Jacobi Trin. 21. Jacobi in the Kings Bench. 489. SOMMERS Case THe Case was between Sommers and Mary his Wife Plaintiffs who Traversed an Office found after the death of one Roberts The parties were at Issue upon one point in the Traverse and it was found against the King Henden Serjeant moved The Office finds That Roberts dyed seised of two Acres in Soccage and four foot of Lands holden in Capite which was alledged Roberts had by Encroachment Sommers and his Wife pleaded That Roberts in his life time did enfeoffe them of one of the Acres Absque hoc that that Acre did discend And for the other Acre they pleaded and entitled themselves by the Will of Roberts Absque hoc that Roberts was seised thereof That I take to be an insufficient Traverse First it is found by the Office That Roberts dyed seised and that the same discended to four Daughters and One of the Daughters is the Wife of Sommers And hee and his Wife traverse the Office and confesse that the Ancestor died seised Absque hoc that the same discended The Traverse is repugnant in it self for if he did Devise it then untill Entry by the Devisee it doth discend but if they had pleaded the Devise only and Entry by force thereof it might have been a good Traverse The Office findes that it did discend to four Daughters and the Wife of Sommers is one of the four Daughters and he and his Wife Traverse the discent and that is not good for one cannot Traverse that which makes a Title to himself 37 Ass 1. The Rule there put is That a Man cannot Traverse the Office by which he is intitled but in point of Tenure he may Traverse it wherewith agrees Stamford Prerogat 61. 62. 42 Ass 23. One came and Traversed an Office and thereby it appeared that Two there had occasion to Traverse it and it was holden that they all ought to joyne in the Traverse Finch Recorder of London contr ' The Office found generally That Roberts had four Daughters and had two Acres and four Foot of Lands and that the same discended to four Daughters Sommers and his Wife Traverse the Office and plead That as to one Acre Roberts made a Feoffment thereof unto them Absque hoc that he died seised thereof 2. That Roberts devised the other Acre to them Absque hoc that the same did discend 5 Eliz. Dyer 221 Bishops Case There it is resolved That a Devise doth prevent a Remitter and then by consequent it shall prevent a Discent 49 E. 3 16. There a Devise did prevent an Escheat to the King As to the four Foot gained by Encroachment which is holden of the King in Capite They traverse Absque hoc that Roberts was seised thereof I agree that where their Title is joynt there all must Traverse but in our Case we Traverse for our selves and deny any thing to be due to the three other Sisters The four Foot of Waste was part of the Mannor of Bayhall and the Venire facias was out of that Mannor and the Towns where the other lands lay 9 E. 4. A. disseises B. of a Mannor and A. severs the Demeasnes from the Services Now B. shall demand the Mannor as in Truth it now is Henden contr ' It is no part of the Mannor of Bayhall for it is encroached out of it therefore the Venire facias ought not to be of the Mannor of Bayhall The Jury finde that he had encroached four Foot Ex vasto Manerii c.
The Case shortly is A. being seised in Fee makes a gift in tail to B. and that descends to four daughters c. And the Plaintiff replies That A. was seised in Fee and gave the Lands to B. and to his Heirs Males and the Plaintiffe claimes the entail as Heir Male and the Defendants under the generall tail absque hoc that A. was seised in Fee 27. H. 8. 4. by Englefield If in Trespass the Defendant plead the Feoffment of a stranger and the Plaintiff saith That he was seised in Fee and made a Lease for years to the said stranger who enfeoffed the Defendant he need not to traverse absque hoc that he was seised in Fee C. 6. part 24. The seisin in Fee is traversable Br. Travers 372. acc Dodderidge Justice The seisin in this Case is traverseable Ley Chief Justice Take away the Seisin and then no gift and therefore the Seisin here is Traverseable Haughton and Chamberlain Justices agreed The Court resolved That either the Seisin in Fee or the gift in tail is traverseable Dodderidge Justice If you both convey from one and the same person then you must traverse the conveyance It is a rule C. 6. part 24. there the Books are cited which warrants the traverse of either Quod nota It was adjudged for the Plaintiff Trinit 21. Jacobi In the Kings Bench. 494 Sir EDWARD FISHER and WARNER's Case THE Testator being indebted unto Fisher made Warner his Executor and Warner in consideration that Fisher would forbear suing of him upon the Assumpsit of the Testator did promise to pay him Fifty Pounds and in an Action upon the Case upon this promise Warner pleaded Non Assumpsit in the Common Pleas and it was found for the Plaintiff And a Writ of Error was brought in this Court because it was not shewed for what consideration the Testator did promise 2. Because it was not shewed That Warner the Executor had Assets in his hands It was said by the Councel of Sir Edward Fisher That they need not shew that he hath Assets because the Defendant Warner was sued upon his own promise C. 9. part 94. The Testator made a promise to pay to Fisher fifty pound and died The Executor in consideration of the forbearance of a Suit upon that promise of the Testator doth assume to pay c. The Jury find for the Plaintiff The Error is that no time is limited nor no place where the promise was made and also it is not shewed when the Testator died and so it is not shewed whether the promise were made in the life time of the Testator or not for if it were in the life time of the Testator then the promise was void Nor is the time of the forbearance shewed and so no good consideration Hill 5. Jacobi a consideration to forbear paululum tempus is no good consideration by Cook And the like case was adjudged 36. Eliz. Rot. 448. Sackbdos case We do alledge de facto that we have forborn our Suit and that the Defendant hath not paid us the money Dodderidge Justice It is alledged that the Plaintiff paid money to the Testator upon which he promised And the Action now brought is upon the promise of the Executor Part of the promise is That he paid the fifty pound to the Testator and that ought to be proved in evidence to the Jury C. 6. part Gregories case if it be not specially named how he shall prove it Haughton to forbear to sue him is for all his life time and not paululum tempus Dodderidge Justice Exception was taken that he doth not shew that the Testator was dead at the time of the promise by the Executor It was shewed That after the death of the Testator that he took upon him the Execution of the Will and then promised and that of necessity must be after the death of the Testator Trinit 21. Jacobi in the King 's Bench. 495 WILLIAM's and FLOYD's Case IN an Ejectione firme The Array was challenged because it was made at the Nomination of the Plaintiffe And by consent of the parties two Atturneys of the Court did try the Array The question was Whether the Triall of the Array was good It was said by the Councel which argued for the Defendant That it was not good If one of the four Knights be challenged the three other Knights shall try that challenge and if he be found favourable he shall be drawn and if another of the Knights be challenged hee shall be tried by the other two and if one of the two be challenged then a new Writ shall issue forth to cause three Knights to appear 9. E. 4. 46. The two which quash the Array ought to try the Array of the Tales for that they are strangers to them The assent of the parties in this case is to no purpose for the consent of the parties cannot alter the Law neither can the King alter the Law but an Act of Parliament may alter the Law 29. Ass 4 19. H. 6. 9. by Newton 27. H. 8. 13. Where a triall cannot be out of the County by the assent of the parties and if it be it is errour By the Councel of the other side contrary This triall of the Array is much in the discretion of the Judges for sometimes it is tried by the Coroners and they are strangers to the Array 21. Ass 26. 20. Ass 10. there the Judges at their discretion appointed one of the Array and the Coroners to try it 27. Ass 28. there upon such a challenge it was tried by the Coroners and Shard said That the triall by any of them was sufficient and by Forriners de Circumstantibus 31. Ass 10. so as it rests much in the discretion of the Judges 29. Ass 3. there it was denied But note That that was in Oyer and Terminer and there it did not appear that the Array was made at the Nomination of one of the parties but in other challenges it may be tried by one of the Panell But in our case they were all challenged was the objection 9. E. 4. 20. Billing For if one of the parties will nominate all of the Jurours to the Sheriffe it is presumed that they are all partiall and 〈◊〉 â—his case the whole Array is challenged but in other cases he may challenge one or two of the Array and yet the others may be indifferent But admit it had been errour yet being by the assent of the parties it is no errour Baynams case in Dyer A Venire facias by assent of the parties was awarded to one of the Coroners and good Dyer 367. 43. E. 3. Office of Court 12. One of the twelve doth depart If the Justices do appoint one of the panell to supply his place it is erroneus but yet if it be with the assent of the parties it is good So in our case 21. E. 4. 59. Brian saith That he hath not seen more then two to try the Array yet by assent of the
certain Farme Lands called Estons and that a Fine was levied of Lands in Eslington Eston and Chilford whereas Eston lay in another Parish appell D. Calthrope argued That the Land in Eston did passe by the Fine although the Parish was not named for that the Writ of Covenant is a personall Action and will lie of Lands in a Hamlet or lieu conus 8. E. 4 6. Vide 4. E. 3. 15. 17. Ass 30. 18. E. 3. 36. 47. E. 3. 6. 19. E. 3. Brev. 767. 2. He said That it was good for that the Plea went only to the Writ in abatement but when a Concord is upon it which admits it good it shall not be avoided afterwards 3. He said That a Fine being a common assurance and made by assent of the parties will passe the Lands well enough 7 E. 4. 25. 38. E. 3. 19. And he vouched Pasch 17. Jacobi in the Kings Bench Rot. 140. Monk and Butlers Case Where it was adjudged that a Fine being but an arbitrary assurance would passe Lands in a Lieu conus and so he said it would do in a common recovery And Richardson said That if a Scire facias be brought to execute such a recovery Nul tiel ville ou Hamlet is no plea and the Fine or recovery stands good Vide 44. E. 3. 21. 21 E. 3. 14 Stone And the opinion of the Court was That the Lands did well passe by the Fine Mich. 8. Caroli in the Kings Bench 509 CAWDRY aud TETLEY's Case CAwdry being a Doctor of Physick the Defendant Praemissorum non ignorans to discredit the plaintiff with his Patients as appeared by the Evidence spake these words to the plaintiffe viz. Thou art a drunken Fool and an Asse Thou wert never a Scholer nor ever able to speak like a Scholer The opinions of Jones and Crook Justices were that the words were actionable because they did discredit him in his Profession and hee hath particular losse when by reason of those words others do not come to him And Palmers Case was vouched Where one said of a Lawyer Thou hast no more Law then a Jackanapes that an Action did lie for the words Contrary if he had said No more Wit And William Waldrons Case was also vouched where one said I am a true Subject thy Master is none that the words were actionable Mich. 4. Caroli in the Kings Bench. 510 The King and BAXTER SIMMON's Case THE Case was this Tenant in tail the Remainder in taile the Remainder in Fee to Tenant in tail in possession Tenant in tail in Remainder by Deed enrolled reciting that he had an estate tail in Remainder Granted his Remainder and all his estate and right unto the King and his Heirs Proviso that if he pay ten shillings at the Receipt of the Exchequer that then the Grant shall be void Tenant in tail in possession suffers a common Recovery and afterwards deviseth the Lands to I. S. and dieth without Issue 18. Jacobi Afterwards 21. Jac. he in the Remainder in tail dieth without issue but no seisure is made nor Offence found that the lands were in the Kings hands Noy who argued for the King The first Point is When Tenant in taile recites his estate and grants all his estate and right to the King and his Heirs what estate the King hath And if by the death of Tenant in tail without issue the estate of the King be so absolutly determined that the Kings possession needs not to be removed by Amoveas manum And he argued That when the Lands are once in the King that they cannot be out of him again but by matter of Record 8. E. 3. 12. Com. 558. And a bare entry upon the King doth not put the King out of possession of that which was once in him And so was it adjudged 34. Eliz. in the Lord Paget's Case as Walter chief Baron said And Noy took this difference 8. H. 5. Traverse 47. and 8. E. 2. Traverse 48. If a particular estate doth determine before that the King seise there the King cannot afterwards seise the Lands But if the King hath once the Lands in his hands or possession there they cannot be devested out of him but by matter of Record So F. Nat. Br. 254. If a man be seised of Lands in the right of his Wife and be outlawed for Felonie for which the Lands come into the Kings hands and afterwards hee who is outlawed dieth there a Writ of Diem clausit extremum shall issue forth which proveth That by the death of the Husband the Lands are not immediately out of the King and setled in the Wife againe 22. E. 4. Fitz. Petition 9. Tenant in taile is attainted of Treason and the Lands seised into the Kings hands and afterwards Tenant in taile dieth without Issue he in the Remainder is put to his Petition which proveth that the Lands are not presently after the death of Tenant in taile without issue out of the King But he agreed the Cases If Tenant in taile acknowledgeth a Statute or granteth a Rent charge and dieth that the Rent is gone and determined by his death as it is agreed in 14. Assisarum The second point argued by Noy was That although that there was not any seizure or Offence found which entituled the King Yet the Deed enrolled in the Chancery which is returned in this Court did make sufficient title for the King as 8. E. 3. p. 3. is The Judges of Courts ought to Judge upon the Records of the same Courts In 8. H. 7. 11. a Bayliff shewed That a Lease was made to T. his Master for life the Remainder to the King in Fee and prayed in Ayd of the King And the Plaintiff in Chancery prayed a Procedendo And it was ruled That a Procedendo should not be granted without examination of the Kings title Thirdly he said That in this case he who will have the Lands out of the possession of the King ought to shew forth his title and in the principall case it doth not appear that the Defendant had any title Vide 10. H. 7. 13. Athowe Serjeant argued for the Defendant he said That in this case the King had an estate but for the life of Tenant in tail And therefore he said That If Tenant in tail grant totum statum suum that an estate but for his own life passeth as Litt. is 145. and 13. H. 7. 10. acc So If Tenant for life the remainder in taile bee and he in the Remainder releaseth to Tenant for life in possession nothing passeth but for the life of Tenant in tail 19. H. 6. 60. If Tenant in tail be attainted of Treason or Felonie and Offence is found and the King seiseth the lands he hath an estate but for the life of Tenant in tail And he cited 35. Eliz. C. 2 part 52. Blithmans case Where Tenant in tail Covenanted to stand seized to the use of himself for his own life and after his death to the use
Inrollment 7 270 142 Intent Intendment 130 121 381 Common 332 Interest not dividable 18 77 78 Interesse termini 2 3 175 Interruption 22 48 Joyning in action 43 283 90 116 160 345. Husband and Wife 10 Joint-charge 56. 57. Joint-tenants 129. Joinâ—ture forfeited by 11 H. 7. 6. 339. Issue lâ—giâ—tim are born after ten moneths c. 281. Issue not proved by the special matter 10. Of Issues see 23. 286. 92. 100. 108. 154. A thing in Issue not in the verdict 57. Mâ—â— joyned no issue 56. Several issues 57. Repugnant 62. Negative and affirmative 194. tried 233. Jury 334. their finding things 33. 34. 65. 274. 88. 171. 359. Examined sworn 209. Forein matter ibid. Strongly imply a thing 36. Three with Sweet-meats in their pockeâ—s 364. Returned 370. Judges sworn to procure the Kings profit 201. Judgment in a Writ of Error 27 66. in Account 258. Husband and wife 369 80. False 176. depending on another 176. staid 177. joint 448. voidable 96. entred Concessum est 399. Justification 277. 137. Jurisdiction of Courts 45. 240. 427. 163. 196. 197. shewing how 380 381. K. KIng usurped upon 7. 8. adhering to his enemies in France 34. To direct the lawes 237. his Prerogatives 290. 291. 292. 293. 294. 295. 296. 297. 298. 299. Prerogative-law Common-law 295. Lands once in the King 441. 442. devest without Office 443. Intrusion upon the King 133. Knights of S. Johns of Jerusalem 393. Lay 394. their possessions Ecclesiastick 393. 395. 396. 397. 398. 399. Templars 394. L. LAches in not entring the Kings silver 139. Laps 129. Lâ—w against the rule of the Common-law to meddle with blood 393. The Law preserves things in its custody 316. Not alterable by grant 201. Leases Term extinguished 2. 3. 5. 268. 129. on Continge â—ie rule 419. 420. Exception of timber-woods and underwoods 98 99. In certain beginning 24. 25. 166. may be avoided 323. 324. and revive 325. within 32 H. 8. 102. Joining to Lease 211. Lease for life by Copyholder 171. of an infant Copyholder 364. of a stock of sheep 113. windfals 117 118. by a Parson 302. by Tenant in tail 9. wants a beginning 419. Legacies for children security to be given 243. A verbal Legacie after the will made 246. 247. To be paid at full age 182. Suit for them 41. Liberty to cleanse a Water-course 98 Licence to erect Dove-cotes 259. 82. 93 93. Limitation by Law statute 5. Limitation of an Estate 19. 103. Of time for actions according to 21. Jac. 437. Livery 9. 25. 84. 93. 301. 158. Right extinguished by it 314. London insolency of the Common-Councel 106 107. Custome there 127. Lunatick M MAâ—hem 67 Maintenance 81 159. 450. hem Mannor 3. 135 Market 131. Marshaâ—sey Judgment there 184. Marriage 2 Is a Release 271. Master and Servants acts of and to the Servant 361 Mines 5. 28. Misnaming 35. 38. 283. Mirâ—cital 36. 170. in the Kings Grant 416 417. 420 421 422. of a Statute 178. Mistake of the day 125 126. of the date 433. Monasteries 1. 392 393. what houses within the Stat. 31 H. 8. there 394 Monstrance of Deeds c. 85. 111 112 114 115. How things are done 61. 126. Of the Place 187 188. 359. 412 413. time 391. Of Letters of Administration 34. Of a Bond must be 39. In what Ward c. 160. Of more then needs and that false 189. That the place is within the Jurisdiction c. that he ought to be priviledged c. 402. Inducement to a matter need not be showne precisely 404. Number and names to be shown 436. before whom c. 437. Monstrance of right 301. 304. Mortmain 192. Murder Manslaughter se defendendo 288 289. within the Stat. of King James 154. N NAme 17. in a Writ 40. 379. 398. Nihil dicit 135 Nisi prius 10. 328. Nomine poenae 12. 154. Non compos 302. 316. 321. Non obstante in the Kings Grants 37. Nonsuit 328. 220. Non use 235. No such Record See Record Notice 23. 162. 339 Nusance 4. 259. 58 59. 183. then when an Action upon the Case when an Assise of Nusance part of an house in Assise abated 233 O OAth putting to a mans Oath 151. Obligation the Condition against Law 13. see 152. 177. see 192. to save harmless 212. not within 13 Eliz. 29. by the High Commissioners 148. Bond to deliver Possession the Assignee of Reversion demands it 272. taken by the Sheriff 136. 212 213. to pay when out of his apprenticeship c. 153. Occupant occupancy 52 172. 220. Offices Officers 21. 47 48. Insufficient 390 391. Coroners 64 89. 105. Regarder 277. Steward of the Leet 71. Office found 312 313. 322. Rights vest without Office 325. void if in deceit of the King 192 Omission of word in a Certificate 407. Ordinarie 30. 191. Ordinances 253. 106 107. Over-sea 268 Outlawry 83. 119. Oyer of a Record not to be denied 186. P PAyment before the day 10 Parceners 3. 129 130. Parceney 3. Park-keeper for what things accountable 419 Forfeits 419. Parker forfeits not his Office by Attainder 418. Parks 237. 425. Chasing 169. beasts of it there 171. Pardon 378. Parliament Summoned at the Kings pleasure only 250. held at the Kings pleasure Writ of Error there must be the Kings Licence 247 by Petition 250 Parsons heretofore Knights 399 Parsonage 34 Partition 3 4. 265. 14 84 85 86. by word 94 Partners in Trade 244. 90. Patents 21. 37. Exposition of them 418. void 254 Perjury 88 89. 179. Perpetuity by devise 102. 350 351. Perquisite 27. Petition of Right 304. Place to be alleadged 48. 187 188 189. 382 384. Plaint entred 266. Pleas 6. 43. 91. 95 96. 145. 121. Certainty 93. in debt 359 360. Amount to a general issue 374. General where they should be specially 10. taken strictly 70. mistaken 121 not entred new Plea 176. Plwalitâ—es 23. 153. Portiâ—n of Tythes 35. Pâ—ssâ—ssion unity 4 Possibility 20. 25. may pass by a grant 26 146 325. Premunire 308 389. Praecipe 6 16. 87. 152. Preâ—ogative see King Presentation 265 179. as Precurator 319. Pâ—â—seâ—â—mentsâ—n â—n Courts c. 59. 〈◊〉 14 15 16. 262. 54 Rules of it there and 237. â—7 184. in a Court 48. one against another 183. Principal and accessory Prâ—vily 19. to sue 377. 379. Prviledg 10. 81. 286. 90 372. Priviledges not transferrable 396 397. of discharge 398. Pleaded 398. time to pray it 404. Probate of Wills Exception of the 23 H 8. 214. Proceedings of Law the form must be kept 201. Procedendo 442. Proclamation 107. Proces 73. Erronious 371. Judicial 328. A Summons for an Attachment 400. Proof 254. Profession trial of it 393. Prohibition 260. 259. 45. 51. 63. 216. 234. 243. 246. 273. 163. 164. 196. 200. 301. 446. 447. Promise 13. 32 271. 94. 134. 349. 350. 216. Property 26 27 117. 118. 193. Changed by tender 330. 331. in things 〈◊〉 naturae 123. Protection 299. 366. Proviso 18. gives power to lease 195. No proper place for it 418. Purchase by
Tenant for life and the administrator of Lessee for years where the term was to begin after death of Tenant for life 1 2. Two named as Joint-purchasers 180. Taking by purchase 363. Q. QVare impedit 263. Quae plura 191. Que estate 172. Quod ei deforceat 2. 448. Quo minus 291 296 297 Quo warranto 91 92 93. R. RApe the Indictment must be preferred in convenient time 444. Raâ—â—shment of Ward 14. 34. 426. Rebutter 310. by that which is sued to be reversed 379. Recognisance 142. Notes only taken 356. for good behaviour 22. 311. Recital of a Statute 86. of the particular estate c. 423. Recâ—rd 103. 356. No such record pleaded there 178. 373. Removed well or not 375. Brought from one Court to another 14. 249. Transcript in Parliament 247. see 328. Recovery common an invention of the Judges found out in Ed. 4 his time 308. All the rights barred 311. before inrolment of the bargain 218. Estoppes 147. by an Infant 161 Recovery in actions 6. Baâ—s 19. 134. Erronious 27. Rectory Glebe c. 35 Recusancie 148. Recusant convict his advowson 216. Relation 270. 313. 317 325. 140. 388. To avoid mean acts 312 Makes acts good before 376. Release of all actions 11. 12. of all his right ibid. where a Covenant is not broken ibid. 29. 30. 310. 220. with Warranty 158. Relief Remainder 19. 51. 52. 265 319. 220. Acts by him in remainder 9. good yet incertain 139. of a term 26. 316. Remitter 69. 312. 320. 326. Rent 3. 279. 146. 156. to cease during minority c. paid to one who has but a right for a time 156. to A. and his heirs for life of B. 172. the word 〈◊〉 449. Replevin 96. 124. 187. Replication 96 insufficient 138. Reputation 17. 353. Request 49. 274. 144. 40â— 438. in an action of the case upon promise 362. Resceit Rescuous 276. 126. Plea in it 91. Reservation 19. 283. 101. Husband leases his wifes Lease reserving rent 279. reservation to the wife 448 449. Restitution upon a Iudgment reversed 27. 376. Retraxit Retorn 217 265. 276. 82. 355. 357. 389. by Coroners one denies 439. general retorn of a Record 408. Reviving 4. of estates and rights 326. Revocation 133 289. Riot 146 438. Rights 301. 313. 314. forfeited 310. 322. 323. given away by conveyance 319. 320. see Livery Executor sels the land hath right c. 31. Robbery on Sunday no Hue and cry 280. S SAle 244. by Executors 77. in a market 160. 349. of goods taken by Pyrats 193. Satisfaction acknowledged 79. 80 Scire fac 79. 83. 155. 371. 379. Seats in a Church 200. sin to be shown 347. 121. Seigniâ—ry services 4â— 28. 38. Sheriffe collects Fines c. after a pardon 178. Simony 390. 202. 435. Slander 40. 43. 239. 241. 242. malitiously spoken there 152. 273. 278. 88. 284. 287. 88. 89. 90. 106. 147. 151. 157. 167. 327. 328. 304. 341. 181. 375. 391. 202. 214. Of a Physitian Lawyer c. 441. Forâ—sworn your self 444. 445. Calling one Bistard 451 Statute-Merch c. General Statutes particular Interests 168. a third person there Statutes 11 H 7. of Jointures forfeiâ—ed 6. 1 2. P and M. of Distresses 11. the Statute of Wiâ—â—es 38 H. exâ—ends not to Copyholds 15 34 H. 8. of Mistakes 416. 32 of H. 8 17. 32 H. 8. of Leases 102. 13 Eliz. of Covenants c. for enjoying spiritual Livings 29 2 M. concerning Preachers 245 4 H 7. Heir of Cestuy que use 79 2 West 1. of Feoffments there 5 Eliz. of Per jury 89 26. H. 8. of Estates tail forfeited for Treason 307 308 309. 27 H. 8. Statuâ—e of Fermors 145 22 E. 4 35 H. 8 of inclosure of Woods 167 Statutes extend not to Superiors unnamed 395 General Statutes bind insants 80 Some particular in 160 Some points 169 Construction where the King is concerned 308 Such Statutes are general 171 of Penal Statutes 315 Savings in Statutes 304. 324 Steward of a Mannor-Court 142 Surety in Debt 149 to pay the Condemnation c. 372 Suit for part 196. in Temporal and Spiritual Courts 447 Sumâ—oâ—s and Severance Sunday 280 Supersedâ—â—s 249 250 Supplicavit for the Peace 355 Surpâ—usâ—ge 248. 73. 434. Surrender 14 15 16. 52. 265. 268. 153. 425 Surrender to the use of A. for ever the Lord admits him in Fee 137 Surrender c. after his death 451 Suspension 4â—9 T TAil-Tenant his Acts Leases 9. 301 302. 308. 323. could not levie a Fine at the Common Law 300 Estate-Tail without the word Heirs 19 Tenant grants Rent acknowledges a Statute 442 Tenant in Tail the remainder in Tail to another who grants his Estate to the King c. 441. 543. tot Stat. suum 442 Forfeited for Treason 307 308 309 321 shewing that the Tenant died without issue 443 the Tenant cannot be barred to alien by common Recovery 351 Tales de circumstantib 204. tried 430 Tenant in common 2. 16. 282 283. 129. Two Lords Tenants in Common of a Waste 156 Tenant by Curtesie 15. 25 cannot grant his Right living his wife 323 In Dower see Dower In Tail after possibility c. at Will Leases c. 15 319. 364. Tender 39. 330 331 332 Tenure 20. 101 Things in action 12 in grols 38 Trade 25 254 Travers 24. 43 56 57 of a Debt 402. to an Office 410. of Discents 411. Rule 253. 111. of Seisin in Fee or the gift in Tail 427 Treason a Papist who after refussing to take the Oath of Allegiance spake these words It is lawfull for any man to kill the King c. 263 264. in the point of Allegiance none must serve the King with ifs and ands ibid. Forfeitures for Treason 322 323 324 a mad man may commit Treason 316 presumed in Law no man will commit Treason 325 Trespass 6. 16. 33. 133. 200. 270 271. barr 134 by one who has special property 173 for taking Conies 174 medling with the Soil 52 53 Pleas 55 Rule 53 Troâ—er 210 Trust not conveyed 64. joynt 77 78 Feoffment in trust 299 broken 432 Tryal 33. 257. 50 51. 196 197. 433 things done in a forrein Port 193 of things done beyond sea 76. 204. see Admiralty Tythes Lands discharged by the Statute 31 H. 8. L. 392. 211. 395 396 discharged by grant 273. 35. 44 45 50 51. 329 330 331. 333 Modus 63. the Parson to have all where 64 Prescription 60. 237 238. 120 after Tythes set out that the owner may carry away 30 sheafs 234 Substraction 245 Leased 333 by Deed 354 not 374 Modus after endowment 180. s 194 of lopping 175 The King to pay no Tythes priviledges of discharge to be taken strictly 396 397 398 V VAâ—iance 248. 88. 362 Valore maritagii 189 Writ of Error 249. 375 Venditioni exponâ—s 276 Venire facias 257. 251. 305. 328. 334 335. 381 382 203. 411 none 194 Verdict 126. 354 Vnperfect 27 incertain 36 special favoured 37 Villein presented to a Benefice by the Lord 179 Visâ—e 48. 54 335. 381 382 383 Void Acts and voidable 311. 318 319 161 Vou 307 Vsage 5 Vse 7. 265 Acts of Cestu que use 303. 306 307. 318 319 makes attorney to make livery 314 Tenant in tail cannot stand seised to an use expressed 269 Superstitious 233 Vsurpation 7 8. 263 W WAger of law 244 79 296 not for part 327 Waife Waining estates 79 100 Wales what Process runs into Wales 214 the Marches 243 President and Councel 437 Ward 79 320 Warreâ— 124 184 Warrant of Attorney 73 74 apparence by it 439 Warrant to receive mony c. 358 Warranting an horse sold 31 a Lease 48 Warranty 5 130 320 368 entring into it 152 Warrantia chartae 152. lies there Waste 5 28 52 70 114 115 116 117 118 132 164 209. When done must be shewn 347 Way drowned 52 Wills 15 construed 363 Witnesses 16 288 326 327 439 Woods underwoods 5 256 inclosed in Forrests according to Statutes 167 168 1â—9 190 171 Words for a grant 7 17 the word portio 35 36. successive 51 Ovile 274 89. omitted in a Writ 286 or 363 Writs not formal divertit for coarctavit 58 the true words not used 64 admitted good 87 demands in them 6 insufficient 347 Two originals 306 408 409 Trespas after the first purchased 407 409. of Right c. 239 Writ mistakes the time of one King for another 399 Of right of advowson 6 263 Writ untrue yet good 115 Writing scandalous words under pretence of a Petition delivered to the King 405. FINIS