Pawnage of the Park of H. grants all his Goods and Chattels moveables and immoveables within the said Park It was holden by Weston and Dyer Iustices That the Lease of the Pawnage passeth by these words And it was said by Dyer If a Man hath a Lease for years of a House and grants all his Goods and Chattels being in the same House that as well the Lease of the House as the Goods within it pass by such a Grant. XLVII Pasch 14 Eliz. In the Common Pleas. NOte It was said by Weston and Bendloes That a Retraxit cannot be before a Declaration which Leonard and Filmer Prothonotaries granted And Dyer said That it being before a Declaration it is but a Nonsuit and Wheatley and Filmer affirmed the same and therefore it was adjudged That such a Retraxit in the Court of Hustings before the Sheriff is no Plea in Bar. XLVIII Pasch 14 Eliz. In the Common Pleas. IN Debt brought against Christmas who shewed forth a Protection Quia Profecturus with the Lord Hunsdon to Barwick Dyer doubted If the Protection did lie But said It should be rather Moraturus then Profecturus For a Protection Quia Profecturus to Calleis was never good but super victitation Calicii Harper contrary For Barwick is out of the Realm And he said That he was once of Counsel Where a Bill was exhibited in Parliament to make Hexham part of England and he said That in the time of the Queen that now is One Carre struck a Man who thereof died at Barwick and in an Appeal thereof brought here by the Wife Carre was dismissed XLIX Cranmers Case Hill. 14 Eliz. Rott 938. In the Common Pleas. Dyer 309 310. 2 Len. 5. 1 Len. 196. 1 And. 19. More Rep. 100. Office of Executors 118. 119. TThomas Cranmer Archbishop of Canterbury having a Reversion in Fee of certain Lands upon a Lease for years granted the Reversion to the use of the Grantor himself for his life and after his decease to the use of the Executors and Assignees of the Grantor for 20 years next after the death of the Grantor and after to the use of Thomas his Son in tail and afterwards to the use of the Grantor in Fee The Grantor is attainted of Treason and the Queen gave the said Term of 20 years to the Wife of the Grantor who took to Husband Ed. White-Church who let the Land to A. Thomas the Son entred and leased the same Land to one Kirk who upon an Ouster brought Ejectione Firmae This Case was Argued by the Iustices Manwood the puisne Iustice conceived That the Plaintiff ought to be barred and that the Lessee of White-Church who claimed by the grant of the Queen the said Term of 20 years ought to hold the Land against the Son of the Grantor For the remainder limited to the Son is not yet begun in possession And he insisted much in his Argument upon this point That Vses limited upon any Conveyance are governed and directed according to the Rules of the Common Law As if a Feoffment in Fee be made unto the use of another for life the remainder to the use of the Lessee for life and the Heirs of his body c. now the party hath an estate tail executed in possession and that is according to the Rule of the Common Law. And he cited the Case of 40 E. 3. 20. Where Land was given by Fine to A.B. and C. and to the Heirs of the body of C. and for default of such Issue the remainder to the right Heirs of A. C. died without Issue B. dyed and afterwards A. died his Heir brought a Scire facias out of the said Fine And by Iudgment of the Court the Scire facias did not lie for the Fee was vested in the Father of the Demandant although that ex vi verbi the remainder was limited not to the Father but to his Heirs But where Vses are limited in other manner than according to the Rules of the Common Law there they shall not be ruled and governed by the Rules of the Common Law As if Lands be given to the use of one for life and to the use of such Lessees to whom the Tenant for life shall demise the same for years or life rendring Rent the remainder over to a stranger in tail and afterwards the Tenant for life makes a Lease for years or life and dieth such a Lease shall bind him in the remainder although that the Lessor had not but for life and be now dead for the Vse limited here to the Lessees which would be was limited contrary to the Rules of the Common Law. For by the Common Law such Leases made by Tenant for life are determined by his death And in this Case This Lease for 20 years after the death of the Grantor was limited according to the Rules of the Common Law and therefore it shall take effect accordingly as if it had passed in possession and not in use as if the Conveyance had been of the Land it self and that Land had been granted to the Grantor for 20 years after his death that Interest had been vested in him to sell forfeit or otherwise to dispose at his pleasure and shall not accrue to the Executors as a purchase 19 E. 2. Fitz. Covenant 25. Land was Leased to one for life and after his decease to his Executors and Assigns for 10 years the Lessee assigned the Term And by Herle it is a good Assignment For it is in the Election of the Lessee to Devise that Interest or to assign it in his life-time And see 39 E. 3. 25. A Lease was made to one for life and a year over 17 E. 3. 29. Lessee for life so as after his death the Land remain to his Executors for 8 years Lessee for life died He who had the Freehold of the Land was impleaded who rendred the Land and the Executors of the Lessee for life prayed to be received scil where as Executors do hold the Term which proves that they had the Term as Executors to the use of the Testator and so Assets therefore the same was before in the Lessee for life But by Dyer in his Argument That Case doth not prove it and certainâ—y it is not Assets For although the Executor have the same Term by purchase yet they have it as Executors for that is a good name of purchase which Harper concessit And Manwood argued further and he Cited 19 E. 3. Fitz. Covenant 24. Land was let for life and if the Lessee died within 12 years that his Executors should hold the same until the end of the 12 years The Lessee for life died and the Executors entred and the Executors of the Lessee for life brought Actions of Covenant which proved that the Executors had the Term as a Chatel vested in the Testator and not in their own Rights as Purchasors by the name of Executors See 22 Ass 37. Land demised to A. ad totam vitam suam
Et ulterius concessiâ— that if the Lessee obierit infra 20 annos proxime sequent the said Lessee potuit legare dare praedict tenementa alicui personae usque ad terminum praedict 20 annorum c. and Dyer cited the Case 16 E. 3. Quid juris clamat 22. Land was leased to one for life and if the Lessee died within the Term of 20 years that his Executors or Assigns should have it until the end of the said 20 years and a Quid juris clamat was brought against the Lessee for life without any mention of any other Estate To which the Defendant pleaded the special matter and demanded Iudgment upon that Fine if he should be driven to Attorn where he is supposed Tenant for life only And it is there said That that special matter is but a Protestation to save the Term to his Executors And upon such a Fine such Tenant hath been driven to Attorn And by Dyer If the Lessee doth not make such protestation yet his special interest is not impaired by it yet it is but reason that it be entred for the more manifestation of it 32 E. 3. Quid juris clamat 5. A Lease to W. for life and 20 years over he may grant the same Term or any part of it And he cited the Case between Parker and Gravenor 3. 4 Mar. Dyer 150. Where a Lease for life was made and by the Indenture of Lease Provisum fuit That if the Lessee died within the Term of 60 years that then his Executors and Assigns should have and enjoy the said Lands pro termino totidem annorum which did amount to the number of 60 years to be accompted from the date of the Indenture And it was the Opinion of the Court That that was not any Lease But they all agreed That a Lease for years in remainder might be upon a Lease for life in the same person See 40 E. 3. A Lease was made for life and half a year after the Lessee died and Waste is brought against the Executors supposing that the Testator held for years and the Writ was holden good And there it is said by Kirton That the Executors could not have that Term unless it were in the Testator and there the Term is not limited to any person And see 11 H. 4. 187. Annuity granted to one for life and 20 years after And 50 E. Ass 1. A Lease for life and 3 years over to his Executors And then here in our Case This Vse being limited in Order according to the Rules of the Common Law shall vest in the Grantor to give or forfeit and then by the Attainder it was forfeited to Queen Mary and if so then the Plaintiff shall be barred Harper Iustice to the contrary And that the Interest in the Remainder for years limited to the Executors and Assigns of the Grantor is in abeyance and not in the Grantor and then it cannot be forfeited But if this Vse had been limited to the Grantor himself then all had been in him to give c. But here in our Case the Remainder for years is limited and appointed to the Executors c. Also Vses shall not be ruled in such manner as Lands but the Law shall rule the possession obtained by use in another manner than the possession obtained by the Order of the Common Law As in the Case of Amy Townsend Plow Com. 111 112. Where the Husband seised in the right of his Wife made a Feoffment in Fee to the use of himself and his Wife for life with divers remainders over Now is not the Wife remitted as she should be by Conveyance at Common La as if the Husband discontinueth the Land in the right of his Wife and the Discontinuee giveth the Lands to the Husband and Wife and to a third person she is remitted to the whole and the third person hath not any thing Dyer to the same intent And here we ought to intend and consider That it was the purpose of Cranmer to advance his Executors with this Term unto their own use and benefit and not to leave the same in himself And I do conceive That the use is in abeyance until the Executors are made or an Assignee appointed for he may make an Assignee who shall have the Term For Assignee may be made two ways 1 By grant of an Estate which is in the Grantor before 2 A person nominated and appointed by another to take any thing c. And it shall be also intended That Cranmer was purposed to make other Provision to leave to his Executors Assets to perform his Will and not that that Term should be applyed to that purpose for then he would have shewed it in the Conveyance by words scil as to pay his Legacies and perform his last Will And the Cases put by my Brother Manwood do not go to the Point For I agree Where Lands are given to one for life the remainder for years and doth not say to whom it cannot be intended to any other but to the Lessee for life or otherwise it shall be void And also where Land is given to one for life and for two years after to his Executors or Assigns or Heirs all is in the Lessee for all is as one gift But where it is given to one for life and after his death the remainder to his Executors I do not see any reason that that remainder should be any Assets in the hands of the Executors Or that if the Lessee dieth Intestate that his Administrator should have it and therefore the Executors shall have the same as a purchase But Cranmer might have given the same or appointed one in the mean time to receive it and in the mean time it shall be in abeyance Also if Lands be Leased to B. for life the remainder for years to his Heirs the same remainder for years is in abeyance until the death of the Lessee and then it shall vest in the Heir as a Purchasor and as a Chattel and shall go to the Executor of the Heir c. and the Tenant for life cannot meddle with it for it is not in him Also Vses shall not be raised as Lands i. e at the Common Law but shall be raised by the Statute and as Vses were raised in the Chancery before the Statute And therefore if this Conveyance had been before the Statute he could not have compelled the Feoffees to dispose of that Interest at his pleasure c. And then Cranmer the Son shall have the Land by force of the entail limited unto him For the Estate for years is gone because no assignment of it is made nor any Executors who can take it and the Estate for life is determined by the death of Cranmer and the Feoffee to an Vse cannot have it for there is not any Consideration whereof he should have any Vse for by the Limitation nothing was left in the Feoffee And so I conceive that the Plaintiff shall recover
Parliament 35 H. 8. it was Enacted That the said Lady should hold part of her Inheritance and dispose of the same as a Feme sole and that the Marquess should have the Residue and that he might Lease the same by himself without his Wife for 21 years or less rendring the ancient Rent being Land which had been usually demised c. The Marquess Leased for 21 years and afterwards durante Termino praedict Leased the same Land to another for 21 years to begin after the determination of the first Lease It was moved in this Case That this last Lease was void and that for 3 Causes 1. Because the Marquess had but an Estate for life and then it could not be intended that the Statute did enable one who had but such an Estate determinable to make such a Lease which peradventure might not commence in his life-time 2. The Letter of the Statute is 21 years or under and the word Under strongly expounded the meaning of the Statute to be not to extend to such an Estate For here upon the matter is a Lease for 40 years 3. Because the Land demised is the Inheritance of the Wife And in this Case it was said That in the Case of one Heydon such a private Act was strictly construed which was That it was Enacted That all Copies for 3 Lives granted by the Lord Admiral of the Lands of his Wife should be good The Admiral granted Leases in Reversion for 3 Lives And it was holden That that Grant was not warranted by the Statute Dyer said The words are general Omnes dimissiones and therefore not to be restrained unto special Leases scil to Leases in possession Manwood said A Feme Covert by duresse joyns in a Lease with her Husband the same shall bind her CXI The Queen and Sir John Constables Case Hill. 20 Eliz. In the Kings Bench. 5 Co. Constables Case A Quo Warranto was brought by the Queen against Sir John Constable who claimed certain Wreck in the County of York The Defendant pleaded That Edward Duke of Buck. was seised of such a Mannor to which he had Wreck appendant and that he was de alta proditione debito modo attinctus and that found before the Escheator And shewed further That the said Mannor descended to Queen Mary who granted the same to the Earl of Westmerland who granted the same to the Defendant Vpon which It was demurred And Exception was taken to the Plea because the Attainder is not fully and certainly pleaded It was argued by Plowden That the Attainder was certainly pleaded scil debito modo attinctus And it is shewed That the Wreck is appendant to the Mannor and then if the Defendant hath the Mannor he hath the Wreck also and if he hath the Mannor it is not material as to the Queen how he hath it for the Queen doth not claim the same but impeacheth the Defendant for using there such a Liberty But if the Heir of the said Duke had demanded the Mannor there against him the Attainder ought to have been pleaded certainly And it was said by him That the Interest of the Queen in the Sea extends unto the midst of the Sea betwixt England and Spain But the Queen hath the whole Iurisdiction of the Sea between England and France because she is Queen of England France c. And so it is of Ireland CXII Hill. 20 Eliz. In the Common Pleas. TEnant for life made a Feoffment of White-Acre of which he was seised for life and made a Letter of Attorny to deliver Livery and Seisin secundum formam Chartae before Livery the Tenant purchased the Fee and afterwards Livery was made It was resolved by the Court in this Case That all passed But if the Feoffment had been of all his Lands in D. and the Letter of Attorny accordingly and before Livery made the Feoffee had many Lands there If he purchased one Acre after the Livery should not extend to that Acre because the Authority was satisfied by the other Acre CXIII Banks and Thwaits Case Mich. 21 Eliz. In the Kings Bench. IN an Action upon the Case the Case was That A. had pawned an Indenture of Lease for years of a Messuage and Lands to Banks Thwaits intending to purchase the same required Banks to deliver him the said Lease and he would give Banks 10 l. whether he bought it or no at what time he would request the 10 l. Post 200. And Banks delivered the same to Thwaits accordingly Post 200. And afterwards brought an Action upon the Case and declared upon the whole matter and concluded Licet saepius requisitus c. without alledging a request express in certain and the day and place of it It was said by Cook That here the monies did not grow due before Request nor is payable before Request and therefore a Request ought to be made in facto And so he said It was ruled in this Court in an Action upon the Case betwixt Palmer and Burroughs and he said that the Mony was not due by the Promise but by the Request And it was the Opinion of the whole Court That although it be a duty Yet it is not a duty payable before Request And the Request makes a Title to the Action But if A. selleth to B. a Horse for 10 l. there is a Contract and a Request in facto need not be layed And the Opinion of the Court was also That upon this matter the Plaintiff could not have an Action of Debt for there is not any Contract for the thing is not sold but it is a Collateral promise grounded upon the delivery And by Clench Here the Request is traversable And afterwards Iudgment was given against the Plaintiff And it was said It was so ruled in Alderman Pullisons Case in the Exchequer Post 201. CXIV Segar and Boyntons Case Mich. 21 Eliz. In the Common Pleas. 2 Len. 156. IN Trespass the Case was this King Henry the 8th Anno 27 of his Reign gave the Mannor of D. to Sir Edward Boynton Knight and to the Heirs Males of his body Sir Edward Boynton had Issue Andrew his eldest Son and C. the Defendant his younger Son and died Andrew Boynton Covenanted by Indenture with the Lord Seymore that the said Andrew Boynton would assure the said Mannor to the use of himself for life the Remainder to the said Lord and his Heirs The said Lord Seymore in recompence thereof should assure other Lands to the use of himself for life the remainder to the use of the said Andrew Boynton in tail who 37 H. 8. levyed a Fine of the said Mannor without proclamations to two strangers to the uses according to the said Agreement and before any Assurance made by the said Lord The said Lord was Attainted of Treason and all his Lands were forfeited to the King And afterwards the said Andrew Boynton made a Suggestion to Queen Mary of the whole matter and upon his humble Petition the said
said Accompt the said Robston demanded allowance of 20 Marks by the year for the said 8 years for the Education of the said Arthur which was allowed to him so as now he shall not be received to demand allowance for the said 8 years for the Education of the said Arthur out of the Accompt of the said 100l and that was fully proved to the Iury. It was moved How the Iury should demean themselves in their Verdict For the Issue is That the Defendant had expended the whole 100l in the Education of the said Arthur and Anne And some were of Opinion If the Defendant had expended part in the Education of the said Anne only yet the Iury ought to find for the Plaintiffs For the Issue is entire upon the expending of the said 100l in the Education of the said Arthur and Anne without saying how much for the said Arthur and how much for the said Anne But Periam and Anderson Iustices were clear to the contrary Wherefore they advised the Iury to find specially if they conceived that the Defendant had expended any part of the 100l and to find it and how much And after the Iury found against the Defendant That nothing was expended c. And gave damages 20l. And the Iustices at the first doubted If damages should be given in an Accompt But at length they received the Verdict by the manner de bene esse See 2 R. 2. Fitz. Accompt 45. 2 H. 7. 13. 10 H. 6. 18. 21 H. 6. 26. And the Book of Entries 17. in such case damages were given CC. Tooley and Preston's Case Hill. 29 Eliz. In the Common Pleas. 1 Len. 397. 1 Cro. 206. 2 Len. 105. IN an Action upon the Case by Tooley against Preston which see Mich. 29 Eliz. Reported in Leon. 1. Part fol. 297. Iudgment was given for the Plaintiff And now upon the Retorn of the Writ of Enquiry of Damages It was moved That for as much as the Damages are excessive viz. 200l that the Court de Gratia would abridge the Damages But the whole Court was against it For that they as Iudges cannot know what prejudice and damage the Plaintiff hath sustained by the wrongful detaining of the said Recognizance but the Iury may well have notice of such matter And as the Case is here the damages are but incertain upon the Assumpsit For the Defendant assumed That if he did not redeliver the said Recognizance to the Plaintiff to pay him 1000 l. so as the damages are reduced to certainty by the promise of the Defendant himself And by Anderson If I bail to you an Obligation to rebail the same to me before such a day one 10l now upon not delivery at such a day I shall have an Action of Debt for the 10l contrary by Windham And by Anderson in the principal Case If the Defendant had pleaded Non Assumpsit and the Iury had found the promise they might have given 1000l damages without danger of an Attaint notwithstanding that the Plaintiff could not prove that he was damnified one penny and that by reason of the express Assumpsit of the Defendant CCI. Bingham and Squire 's Case Hill. 29 Eliz. In the Common Pleas. BIngham brought Debt upon an Obligation against Squire 4 Len. 61 The Condition was That if the said Squire procure a Grant of the next Avoidance of the Arch-Deaconry of Stafford to be made to the said Bingham so that the said Bingham at such next Avoidance may present That then c. And the Case was That afterwards by the means and endeavour of Squire the Grant of the said next Avoidance was made to Bingham But before the next Avoidance the present Arch-Deacon was created a Bishop so as the presentment to that Avoidance appertained to the Queen It was adjudged in this Case That the Condition was not performed and that by reason of these words So that Bingham may Present And afterwards the Plaintiff had Iudgment to recover CCII. Rolt's Case Hill. 29 Eliz. In the Common Pleas. THe Case was A Lease is made to two durante vita ipsorum alterius eorum diutius vivent absque impetitione Vasti durante vita ipsorum The one of them dieth Now although some conceived there was a difference between the Limitation of the Estate and of the Liberty c. for the Limitation of the estate seems to be more liberal Yet it was agreed by the whole Court That the Liberty runneth with the Estate and shall endure as long CCIII Farmer and Dorington's Case Hill. 29 Eliz. In the Common Pleas. AN Action upon the Case for these words I will prove Farmer to be a perjured Knave It was moved The words are not Actionable for it is not a meer affirmation But after many motions It was holden by the whole Court That upon those words an Action did well lie CCIV. Allen and Hill's Case Mich. 29 30 Eliz. In the Kings Bench. 1 Cro. 238. IN an Ejection Firme by Allen against Hill of a House in Cornhill in London Vpon Not guilty pleaded The Iury found this special matter viz. That one Francis Beneson was seised of the said House in Fee and 4 Eliz. devised the same to Anne his Wife for life in full satisfaction of all her Thirds in London and after her death to Tho. Beneson his Brother in Fee Proviso That if Anne clearly the words of the Verdict are totaliter depart out of London and dwell in the Country that then she shall have a Rent out of the said House And the Iury found further That Francis died without Issue and that afterwards Thomas died Robert being his next Heir And that 14 Eliz. Anne clearly departed out of London and went to Melton in the County of Suffolk And that afterwards Robert before any Entry released unto Anne and afterwards against his Release entred It was argued for the Defendant That by this Proviso and the departure of Anne out of London the Freehold was not out of her and vested in Robert before the entry of Robert For if it were out of Anne then is she but Tenant at sufferance to whom a Release made cannot enure And the words of the Will are not That her Estate shall cease And here as the case is Anne cannot be Tenant at sufferance to him in the Remainder betwixt whom and her there is not any privity See 18 E. 4. 25 26. Tenant for the term of the life of another the Remainder over in Fee Cestuy que vie dieth The Tenant remained Tenant until he in the Remainder entred upon him And so in our Case although Anne hath clearly departed out of London c. yet the Freehold of the House doth continue in her until the Entry of Robert and then the Release made to her is good Also the Breach of the Condition is not fully found For the Proviso is If she clearly departs out of London but it doth not stay there and dwell in the Country c. And
of Estate of Freehold c. But in our Case the Office is confessed by the Traverse to be true although that the conveyance be not truly found And also Harris at the time of the Office found had not just title but his Interest came to him long time after the Office found Also the traverse is not good for he traverseth the matter of the Conveyance which is not traversable For if the Queen hath title non refert quo modo or by what Conveyance she hath it As to the matter in Law Tenant in tail in remainder is Attainted of Felony If the King during the life of the Tenant in tail shall have the Freehold And he conceived she should For it shall not be in abeyance and it cannot be in any other for when he is attainted he is dead as unto the King The chief Lord cannot have it For the Tenant for life is alive and also he in the remainder in Fee c. The Donor shall not have it for the Tenant is not naturally dead but civilly and the Land cannot revert before the Tenant in tail be naturally dead without Issue But if there were any other in whom the Freehold could vest then the King should not have the Freehold but only the profits So if the Tenant be attainted the Lord shall have the Land presently 3 E. 3. 4 E. 3. The Husband seised in the right of his Wife is attainted of Felony the King shall have but the profits because that the Freehold rests in the Wife and if the Lord entreth the Wife shall have an Assise And Tenant in tail may forfeit for his life as he may grant during his life See Old N.B. 99. If Tenant in tail for Life Dower or by the Curtesie be attaint of Felony the King shall have the Land during their lives and after their decease he in the Reversion shall sue to the King by Petition and shall have the Lands out of the Kings hands And there it is further said That the Lord by Escheat cannot have it for the party attainted was not his very Tenant but he in the Reversion for the term yet endures But now is to see If the Freehold be in the King without Office And I conceive that it is Where the King is entituled to an Action there the King ought to have an Office and a Scire facias upon it As where the King is entituled to a Cessavit Action of Waste c. 14 H. 7. 12. Where entry in the Case of a Common person is necessary there behoves to be an Office for the King. As where the Kings Villain purchaseth Lands or an Alien born c. so is it for a Condition broken Mortmain c. In some Cases an Office is only necessary to instruct the King how he shall charge the Officer for the profits which may be supplyed as well by Survey as by Office As if the King be to take by descent or as the Case is here And it is true That a person attainted of Felony may during his Attainder purchase Lands and yet he cannot keep it against the King. And it is clear That by the Common Law in such Cases the Land was in the King but not to grant For the Statute of 18 H. 6. was an Impediment to that But now that defect is supplyed by the Statute of 33 H. 8. So as now the King may grant without Office. See 26 Eliz. Cook 3 Part Dowty's Case And in our Case Office is not necessary to entitle the King but to explain his Title See 9 H 7. 2. The Lands of a Man attainted of High Treason are in the King without Office so where the Kings Tenant dieth without Heir or Tenant in tail of the gift of the King dieth without Issue See Br. Office before the Escheator 34. See 13 H. 4. 278. A Man Attainted of Treason the King before Office grants his Lands and Goods Things which lie in Grant as Advowsons Rents c. such things upon Attainder are in the King without Office. As to the General Pardon of 23 Eliz. He conceived That the same did not extend to this Case and that this Interest of the Queen by this Attainder did not pass by the Pardon out of the Queen So if the Queen had but a Right and title only Popham Attorny General By this Attainder the Estate of him in the Remainder in tail accrued to the Queen for the life of him in the Remainder For by our Law Felony is punished by the death of the Offendor and the loss of his Goods and Lands for the example of others therefore nothing is left in him Tenant for life is attainted of Felony The King pardons to him his life yet he shall have his Lands during his life for he himself cannot dispose of them for his life And so it is of Tenant in tail c. for he may forfeit all that which he hath and that is an Estate for his life which is the Freehold If Lands be given to one and his Heirs for the life of another and the Donee be attainted of Felony the King shall have the Land during the life of Cestuy que vie for the Heir cannot have it because the blood is corrupt and there is not any Occupancy in the Case For 17 E. 3. the Iustices would not accept a Fine of Lands for the life of another because an Occupant might be in the Case But for a Fine of Lands to one and his He is for the life of another they accepted a Fine for there is no mischief of Occupancy Land is given to A. for life the remainder to B. for life the remainder to the right Heirs of A. who is attainted of Felony A. dieth now the King hath a Fee executed And here in our Case If this Tenant for life had been dead no Praecipe would lie against him in the remainder being in possession but the party who had right was to sue to the King by Petition 4 E. 3. If one seised in the right of his Wife of Lands for life be attainted the King shall have exitus proficua But I conceive that Case is not Law For see F.N.B. 254. D. The Husband seised in the right of his Wife in Fee is Outlawed of Felony the King seiseth the Husband dieth Now shall issue forth a Diem Clausit extremum the words of which Writ are in such case Quia A. cujus terra Tenement quae ipse tenuit de jure haereditate N. uxoris suae adhuc superstites occasione cujusdam utlagariae in ipsum pro quadam felonia inde indictatus fuit c. in manu Domini H. Patris nostri extiterunt c. therefore the King hath not exitus tantum but also the Land it self See to the same purpose the Register 292. b. And see also now in the Book of Pleas of the Crown 186 187. which affirmeth That Tenant in tail being attainted of Felony shall forfeit the
that the Queens Attorny said That it is true that Thomas Robinson was possessed but it is further said That Thomas granted it to Paramour and so the Interest of Thomas is confessed on both sides and therefore the Iury shall not be received to say the contrary But the Opinion of Manwood Chief Baron was That if the parties do admit a thing per nient dedire the Iury is not bound by it but where upon the pleading a special matter is confessed there the Iury shall be bound by it And afterwards the Issue was found against Robinson the Defendant CCLXXIII Trin. 30 Eliz. In the Kings Bench. IN an Action of Debt by A. against B. upon an Obligation the Defendant pleaded tender of the Mony according to the Condition upon which the parties were at Issue And after the Defendant pleaded That after the Darrein Continuance the Debt now in demand was Attached in the Defendants hands according to the Custom of London for the debt of C. to whom the Plaintiff was endebted It was the Opinion of the Court That the Plea was insufficient for it is altogether contrary to the first Plea. And also the Court held That in an Action for the debt depending here in this Court the debt cannot be attached and the Court would not suffer a Demurrer to be joyned upon it but over-ruled the Case without any Argument For it was said by Wray Chief Iustice That it was against the Iurisdiction of the Court and the Priviledge of it CCLXXIV Trin. 30 Eliz. In the Kings Bench. NOte It was holden by the Court That if a Copyholder in Fee dieth seised and the Lord admits a stranger to the Land who entreth that he is but a Tenant at Will and not a Disseisor to the Copyholder who hath the Land by descent because he cometh in by the assent of the Lord c. CCLXXV Trin. 30 Eliz. In the Kings Bench. AN Ejectione firmae was brought de uno Cubiculo and Exception was taken to it But the Exception was disallowed The Declaration was special viz Leas unius Cubiculi per nomen unius Cubiculi being in such a House in the middle story of the said House And the Declaration was holden good enough and the word Cubiculum is a more apt word than the word Camera And such was the Opinion of Wray Chief Iustice And it was said That Ejectione firmae brought de una rooma had been adjudged good in this Court. CCLXXVI Johnson and Bellamy's Case Rot. 824. Mich. 30 31 Eliz. In the Common Pleas. IN an Ejectione firmae It was holden by Special Verdict 1 Cro. 122. That W. Graunt was seised of certain Lands and by his Will devised the same to Joan his Wife for life And further he willed That when Rich. his Brother should come to the age of 25 years that he should have the Land to him and the Heirs of his body lawfully begotten W. Graunt died having Issue of his body who was his Heir Rich. before he attained the age of 25 years levied a Fine of the said Lands with proclamations in the life and during the seisin of Joan to A. sic ut partes finis nihil habuerunt And If this Fine should bar the Estate in tail was the Question And the Iustices cited the Case of the Lord Zouch which was adjudged Mich. 29 Eliz. Where the Case was Tenant in tail discontinued to E. and afterwards levied a Fine to B. That although that partes finis nihil habuerunt yet the said Fine did bind the Estate tail But the Serjeants at the Bar argued That there was a difference between the Case cited and the Case at Bar For in the Case cited the Fine was pleaded in Bar but here it was not pleaded but found by Special Verdict To which it was said by the Court That the same is not any difference For the Fine by the Statute is not any matter of Estoppel or Conclusion but by the Statute binds and extincts the entail and the right of it And Fines are as sufficient to bind the right of the entail when they are found by Special Verdict as when they are pleaded in Bar. And Periam Iustice said A Collateral Warranty found by Special Verdict is of as great force as pleaded in Bar. And afterwards Iudgment was given That the Estate tail by that Fine was utterly barred and extinct CCLXXVII Mich. 30 Eliz. In the Kings Bench. THe Case was A Man made a Lease for life rendring Rent at Michaelmas and further Leased the same to the Executors of the Lessee until Michaelmas after the death of the Lessee It was affirmed by Cook That in that Case it was adjudged That the word Until shall be construed to extend to the Term unto the end of the Feast of St. Michael and so the Rent then due payable by the Executors for without such Construction no Rent should be then due because the Term ended before Michaelmas CCLXXVIII Pasch 30 Eliz. In the Kings Bench. ONe was bounden to stand to the Award of two Arbitrators who awarded That the party should pay to a stranger or his Assigns 200 l. before such a day The stranger before the day died B. took Letters of Administration The Question was If the Obligee should pay the Mony to the Administrator or if the Obligation was discharged It was the Opinion of the whole Court That the Mony should be paid to the Administrator for he is an Assignee And by Gawdy If the word Assigns had been left out yet the payment ought to be made to the Administrator Which Cook granted CCLXXIX Pasch 30 Eliz. In the Common Pleas. THe Defendant in Debt being ready at the Bar to wage his Law was examined by the Court upon the points of the Declaration and the cause of the Debt upon which it appeared that the Plaintiff and Defendant were reciprocally endebted the one to the other And accompting together they were agreed That each of them should be quit of the other It was the Opinion of Periam and Anderson Iustices That upon that matter the Defendant could not safely wage his Law For it is but an agreement which cannot be executed but by Release or Acquittance CCLXXX Pasch 30 Eliz. In the Common Pleas. TEnant in tail Covenanted with his Son to stand seised to the use of himself for life and afterwards to the use of his Son in tail the remainder to the right Heirs of the Father The Father levied a Fine with proclamations and died It was moved by Fenner If any Estate passed to the Son by that Covenant for it is not any discontinuance and so nothing passed but during his life and all the Estates which are to begin after his death are void Anderson Iustice The Estate passeth until c. And he cited the Case of one Pitts where it was adjudged That if Tenant in tail of an Advowson in gross grants the same in Fee and a Collateral Ancestor releaseth with warranty and dieth
use created before the Statute and a use created afterwards for in the first Case they ought to enter and if they be disabled by any Act as in the Case between Gascoign and the Earl of Kent it shall never rise but in the later Case the whole authority and confidence is by the Statute taken out of the Feoffee and the contingent use shall rise without aid of the Feoffees by the operation of the Law for there the Land is bound to the Vses and charged with them As upon a Iudgment in a Warrantia Chartae the Land of the Defendant is bounden pro loco tempore and according to the Common experience in Conveyances for payment of the Kings Debts as in the Case between Proctor and Dennis The Debtor of the King makes a Feoffment in Fee unto the use of himself and his Heirs until he makes default of such a payment to the Queen at such a day and upon default to the use of the Queen and her Heirs Cowper There needs no Entry of the Feoffees and he put the difference put before by Harris betwixt a Vse created before and a Vse created after the Statute and now the Feoffees have not any power to revive or to stand seised to such Vses but are only as Instruments to convey the Vses For the Vse is created upon the Livery and is transferred by the Statute if the person to whom the Vse is limited be capable of it at the time of the limitation but if not the Law preserves it until and it cannot be by any means prevented and he cited the Case 30 H. 8. Br. Feoffments to Vses 50 and there is a great difference betwixt a Vse limited before and after the Statute For now after the Statute the Feoffees by reason of their seisin cannot be vouched for they have not such a Seisin whereof they may make a Feoffment and he put the Case between Cheny and Oxenbridge Cheny leased to Oxenbridge for 50 years and afterwards enfeoffed Oxenbridge to the use of Cheny himself and his Wife for their lives with divers remainders over And it was adjudged in the Court of Wards That by the Feoffment the Term is not extinct and he put the Case of the Lord Pagett adjudged in the Kings Bench. A Feoffment was made to the use of the Feoffee for life the Remainder to him whom the Feoffor should name at his death in Fee and the Feoffor and Feoffees for good Consideration levy a Fine to a Stranger and afterwards the Feoffor nameth and dieth The party named by the Feoffor shall have the Land notwithstanding the Fine c. Beamount the contingent use is here utterly destroyed by the Feoffment aforesaid and it appeareth by the preamble of the Statute of 27 H. 8. of Vses That the motives of that Act did not favour Vses but it was their meaning utterly to root them out And if contingent Vses which are not nor can be executed by the Statute should stand in force the mischief should be that no Purchasor should be secure of his Purchase but should be in danger of a new born Vse not known before And he grounded his further Argument upon the reason of Manwood and Dyer Where a Man makes a Feoffment in Fee to the Vse of himself and his Wife which shall be and afterwards he and his Feoffees and those in Remainder make a Feoffment to divers other new Feoffees and to new Vses and afterwards he takes another Wife and dieth The said Iustices were of Opinion That by the said Feoffment the contingent Vses were destroyed For when the Estates which the Feoffees take is taken away which was the root and foundation of the Vses and the branch and fruit of the said Tree it necessarily followeth that they also be taken away and also because the Feoffees by their Livery are barred for to enter for to re-continue the Estate would continue these Vses they also are gone and extinguished Yelverton I conceive that notwithstanding the Feoffment that the Vse shall rise in his due time according to the limitation of it c. CCCXXXIX The Serjeant's Case Mich. 32 Eliz. In the Common Pleas. TEnant in tail and he in the Remainder in Fee joyn in a Grant of a Rent-charge in Fee to the issue of Tenant in tail a year before the Statute of 27 Eliz. of fraudulent Conveyances and afterwards the Tenant in tail and he in the Remainder sell the Land and afterwards a Praecipe is brought against Tenant in tail who voucheth him in the Remainder who voucheth the Common Vouchee and so a Recovery is had and seisin accordingly The issue in tail dieth without issue Tenant in tail dieth the Vncle distraineth for the Rent Glanvil Serjeant argued That this grant of the Rent is altogether the grant of the Tenant in tail and that nothing passed from him in the Remainder and that it doth enure as one entire Grant and not as several Grants As where Tenant for life and he in the Reversion joyn in a Lease it is one entire Lease and the Lease of them both and they shall both joyn in an Action of Waste But admit that here are several Grants yet the Estate out of which the Rent was granted continuing the Rent shall continue also And now the Recoveror comes in the Post and in the affirmation of the Estate of Tenant in tail and the Remainder is utterly defeated and destroyed by the Recovery and the Rent always issueth out of the particular Estate and he cited Littl. 125. If a Rent-Charge be issuing out of Land and the Tenant of the Land leaseth the same for life and afterwards the Rent is granted over now he who hath the Freehold ought to attorn scil the Tenant for life for a Rent-Charge lieth always upon the possession and if Tenant for life granteth a Rent-Charge and afterwards makes a Feoffment in Fee the Rent shall continue until the possession be recontinued c. Harris Serjeant contrary This Grant is the Grant of them both scil of the Tenant as long he hath issue of his Body and afterwards it is the grant of him in the Remainder Where a Man derives his Interest from two the one being a particular Tenant the other a Recoveror or a Remainder in Fee the Donee takes of each of them that which he may lawfully give and no more and the particular Estate being then ended the Donee shall be then accompted in by him in the Reversion c. See 2 E. 4. 1. And he vouched the Case of the Lord Mountjoy The Lord Mountjoy took to Wife a Woman Enheretrix she had issue and so he was intituled to be Tenant by the Curtesie and acknowledged a Statute and afterwards he and his Wife levyed a Fine and died Now the Conusee shall hold the Land discharged of the Statute for after the death of the Husband the Conusee is in by the Wife only and so paramount the charge Also he said That this Grant of
Rent 11 H. 7. 13. 21 H. 6. 24. 14 H. 8. 35. So where the Successor accepts of a Rent upon a Lease made by the Predecessor 37 H. 6. 4. 8 H. 5. 10. 4 E. 4. 14. The same Law in Exchanges and Partitions If the Wife accepteth of Dower of the Land which her Husband hath taken in Exchange she shall be barred of that Land which her Husband gave in Exchange 6 E. 3. 50. 15 E. 3. tit Bar. 125. 12 H. 4. 12. c. And in all these Cases where there is an Agreement and therein an Agreement implyed scil An Agreement to the Lease and a Disagreement to have the Possession c. And so Agreement to the Land received in Exchange and Disagreement to the Land given in Exchange and all that by word and act in pais And so here in these Cases Estates are affirmed and entred and benefit of the possession waived and refused So it is also of a Right and Title of Action 21 H. 6. 25. The Lord entituled to have a Writ of Right upon Disclaimer accepts a Rent of the Tenant Now he is barred of his Action 13 Ass 3. The Disseisee accepts homage of the Disseisor it is a good bar in an Assise 21 Ass 6. Pendant a Cessavit the Tenant aliened the Lord accepted the Services of the Alienee his Action is gone 11 E. 3. tit Dower 63. A Woman entituled to Dower accepteth Homage of the Ter-Tenant the same is a Bar of her Dower And as it hath been said of Entries and Actions of which a Man may refuse the benefit by word and Acceptance in pais So is the Law also in Cases of Estates vested if the party doth not Enter Husband and Wife Tenants in special tail the Husband levyeth a Fine to his own use and afterwards Deviseth the Land to his Wife for life the Remainder over rendring Rent the Husband dieth The Wife Enters and pays the Rent now she hath waived her Remitter 18 Eliz. Dyer 351. 10 E. 4. 12. The Tenant enfeoffed the Lord and a stranger and made Livery to the stranger although the Freehold vested in them both yet if the Lord disagreeth to the Feoffment in futuro he cannot enter and occupy the Land and he may distrain for the services c. If a Disseisin be made to the use of the Husband and Wife and the Husband agreeth to it the Freehold vests in the Husband and Wife but the Wife is not a Disseisor and after the death of the Husband she may disagree unto the Estate by word 12 E. 4. 7. And also an Agreement shall make her a Dissessisor See to the same intent 7 E. 4. 7. and Litt. 129. Although that in such and the like Cases the Estate vests in some manner yet it shall never vest to the prejudice of the party without an express and actual agreement And that disagreement to an Estate in such manner vested may be in pais and by word seems by a Clause in the Statute of 27 H. 8. cap. 1. Where a Ioynture is made after Marriage there the Wife after the death of her Husband may at her pleasure refuse her Ioynture and have and demand and take her Dower her Writ of Dower or otherwise scil by word and Acceptance in pais And if in a Writ of Dower the Tenant will bar the Demandant by Ioynture made during the Coverture he ought to say Quod intrando agreeavit See Litt. in Dower ad Ostium Ecclesiae If the Wife entreth and agreeth the same is a good Bar in Dower Littl. 8. Now in the principal Case When the Wife agreeth to the Devise of Thoby and the same is executed by entry now the same is a full Disagreement to Hinton It was afterwards Objected That although it be clear That the Wife may waive her Ioynture in Hinton by word and act in pais without matter of Record Yet some conceived That this manner of Devise of Thoby is void by the Statute of 32 34 H. 8. The Statute enables to Devise two parts or so much as amounts to two parts in value at the time of the death of the Devisor for then the Will takes effect which cannot be here in this Case for at the time of his death the Ioynture of Hinton was in force and so continued until the disagreement afterwards Also the words of the Statute are Having a sole Estate in Fee-simple but here the Devisor had but a Reversion in Fee expectant upon an Estate tail c. As to the first Point it was answered That the Disagreement doth relate to the death of the Husband and is now as if no Ioynture had been made ab initio And here the Heir shall have Hinton by descent and he shall be Tenant to every Praecipe and if it be brought against him the same day that the Husband dieth the Writ shall be good by the Disagreement after and the Heir shall have his age c. And if the Father had been a Disseisor and had Conveyed the Land ut supra now by this argeement of the Wife the Heir shall be accounted in by descent and thereby the Entry of the Disseisee taken away And if the Heir in such case taketh a Wife and dieth by this disagreement after the Wife shall have Dower of Hinton and hath such a possession quod faciet sororem esse haeredem And if that the same day that the Husband dieth the Heir levyeth a Fine or acknowledge a Statute or maketh by Indenture enrolled a Bargain and Sale of it by the said agreement Hinton shall be subject to such Acts of the Heir All which Cases prove That the Devisor upon this matter at the time of his death had a sole Estate in Feesimple in the Mannor of Hinton and that the third part in value descended to the Heir and so the Devise of Thoby good It hath been Objected That here is not an immediate descent of which the Statute of 34 H. 8. speaks And here the Mannor of Hinton doth not descend immediatly for there was a mean time between the Death and the Disagreement and so the Will void for Thoby To that it was answered That this word immediatè sumitur dupliciter re tempore and shall be taken here immediatè re statu scil That a Reversion or a Remainder dependant upon a particular Estate in possession which is mean shall not be allowed for the third part descended For a Descent which takes away an Entry ought to be immediate for a mediate descent doth not take away an Entry Litt. 92. as the descent of a Reversion or Remainder And if this word Immediatè had not been in the Statute Then the Statute might have been construed That it should be sufficient to leave the third part to descend in Reversion or Remainder but this word Immediatè makes it clear And therefore the third part which descends ought to descend immediatè in re Statu Yet a Reversion upon a Lease for
to prevent all acts and charges made mean by the Vendor yet it shall not relate to vest the Estate from the time of the delivery of the Deed For the Vendee cannot punish a Trespass Mean And if the Vendee hath a Wife and the Vendee dieth before Enrollment and afterwards the Deed is enrolled she shall not be endowed but here shall be some descent to take away an Entry yet the Heir shall have his age But in our Case it is otherwise for by the Waiver the Ioynture was waived ab initio And he cited Carrs Case 29 Eliz. in the Court of Wards The King granted the Mannor of C. to George Owen in Fee tenend in Socage and rendring 94 l. per annum And afterwards granted 54 l. parcel of the said Rent to the Earl of Huntington in Fee to be holden by Knight-service in Capite and afterwards purchased the said Rent in Fee And afterwards of the same Mannor enfeoffed William Carr who devised the same for the payment of his Debts And it was holden That the devise was good against the Heir And the King was not entituled to Livery or Primer Seisin And therefore the Defendant was dismissed But peradventure the Queen shall have benefit of the Act. See Cook 3 Part 30 31. Butler and Baker's Case The King gives Lands unto A. in Fee to hold by Knights-service during his life and afterwards to hold in Socage He may devise the whole For at the time when the devise took effect he was Tenant in Socage Lands holden in Knight-service are given to J.S. in tail scil to the Heirs Males of his Body the Remainder to the right Heirs of J.S. J.S. deviseth these Lands and afterwards dieth without Issue Male the same is good for two parts yet during his life he had not an Estate in Fee in possession The Father disseiseth his Son and Heir apparent of an Acre of Land holden in Chief by Knight-service in Capite and afterwards purchaseth a Mannor holden in Socage and deviseth the said Mannor and dieth his Heir within age the Devise is good for the whole and the King shall not have Wardship of any part and that in respect of the Remitter and yet it is within the words Having sole Estate in Fee of Lands holden and within the Saving Tenant in tail of an Acre of Land holden of the King in Chief by Knight-service seised of two Acres in Fee holden ut supra makes a Lease for three Lives of the Acre entailed reserving the accustomed Rent and afterwards deviseth the other two Acres in Fee and afterwards dieth seised of the Reversion and Rent The same is a good devise of all the two Acres And here is an immediate descent of the third part for the same is within the words In Possession Reversion or Remainder or any Rent or Service incident to any Reversion or any Remainder See the Statute of 34 H. 8. A Man seised of three Acres of equal value holden by Knight-service in Capite assureth one to his Wife for her Ioynture by Act executed and deviseth another to a stranger And the third to his Wife also The King in this case shall have the third part of every Acre But if the stranger waiveth the devise the King shall have the Acre to him devised and the Wife shall retain the other two Acres and it shall not go in advantage of the Heir So if he deviseth the said three Arces severally to three several persons to each of them one Acre and the one Waives the devise in one Acre The devise of the other two is good Or otherwise the King shall have the third part of every Acre c. CCCLXVII Mich. 35 Eliz. In the Common Pleas. 5 Co. 29. THe Case was An Enfant was made Executor And Admimistration was committed to another viz. A. durante minori aetate who brought an Action of Debt against the Debtor and recovered and had him in Execution and now the Executor came of full age It was moved What should be done in this Case and how the party should be discharged of the Execution for the authority of the Administrator is now determined and he cannot acknowledge satisfaction or make an acquittance Windham Although the authority of the Administrator be determined yet the Record and the Iudgment remain in force But peradventure you may have an Audita Querela But he conceived That an Administrator could not have such Action for that he is rather a Bailiff to the Enfant than an Administrator See Prince's Case 42 Eliz. Cook 5 Part 29. Which Rhodes concessit A. was bounden unto B. in an Obligation of 100 l. upon Condition to pay a lesser sum The Obligee made an Enfant his Executor and died Administration was committed durante minori aetate to C. to whom A. paid the Mony It was doubted If that payment was rightful or If the Mony ought to have been paid to both Windham Doth it appear within the Record That the Enfant was made Executor and that Administration was committed ut supra To which it was answered No. Then Windham said You may upon this matter have an Audita Querela In this Case It was said to be the Case of one Gore 33 Eliz. in the Exchequer in a Scire facias by an Assignee of a Bond against an Enfant Executor He pleaded That the Administration was committed to A. and his Wife during her minority And it was adjudged no Plea. CCCLXVIII Mich. 35 Eliz. In the Common Pleas. NOte It was the Opinion of all the Iustices Jones Rep. 243. That if Lessee for 20 years makes a Lease for 10 years that he may grant the Reversion without Deed but in such case if there be a Rent reserved there ought to be a Deed and also an Attornment if the Rent will be had And it was agreed by them all That if there be Lessee for years and the Lessor granteth the Land to the Lessee and a stranger that the Reversion shall pass without Livery or Attornment and that by the Acceptance of the Deed by him who ought to Attorn But whether he shall take joyntly or in Common or whether in a moyety or in the whole the Iustices were of divers Opinions Ideo Quaere for it was not Resolved FINIS A TABLE of the principal Matters contained in the Third Part of LEONARD'S Reports A. ABatement of Writ Page 2 4 77 92 Ex Officio Curiae p. 93 Accompt p. 38 61 63 Damages given in it p. 150 Damages given in it not expresly but the Court shall give Quoddam Incrementum p. 192 Brought by the Grantee of the King against an Executor where maintainable where not p. 197 Generally brought where good p. 230 Acquittance Must be shewed upon payment of Debts by Executors p. 3 Action upon the Case For stopping of a way p. 13 Against one for proceeding to Judgment and awarding of Execution in an inferiour Court after an Habeas Corpus awarded p. 99 Where lieth
the Enfant Hob. Rep. 281. for the Wife had her said Estate to her own use and then her Husband surviving her should have it and that without any admittance for that he is not in of any new Estate but in the Estate of his Wife as Assignee And it was said by them That if a Copyholder be for years and maketh his Executors and dieth that the Executors should have the Term Co. Case of Copyholders and that without any Admittance Weston contrary in that case as to the Executors XXIII Tindall and Cobbs Case 7 Eliz. In the Common Pleas. WAste was brought by Tindall Knight against Jeoffery Cobbe Esquire and the Plaintiff declared of a Demise of the moyety of the Mannor of Wolverton and of the moyety of a Wood called Wolverton-Wood The Defendant pleaded That Robert Winckfield before the Waste supposed was seised of and in tertia parte alterius Medietatis of the said Mannor and of and in tertia parte alterius Medietatis of the aforesaid Wood and held the same insimul pro indiviso with the Plaintiff and that the said Robert Winckfield by his Deed sold to the Defendant omnes omnimodas arbores subboscos suos crescent in praedict tertia parte alterius medietatis praedicti bosci ad libitum ipsius Galfridi succidend and so justified the cutting down of 300 Oaks in which the Waste is assigned with this that he will aver That the aforesaid 300 Oaks were the third part only in numero precio medietatis omnium arbor subboscorum at the said time when the Waste is supposed to be done and demanded Iudgment if Action And divers Exceptions were taken to the Count 1. He sheweth Vaugh. Rep. 175. that the Demise of the moyety of the Mannor was per nomen c. and doth not shew that the demise was by writing and if not then he cannot plead it by a per Nomen 2. The Waste is assigned in digging of Clay in 100 Acres of Lands parcel Medietatis Maner de Wolverton and hath not shewed in what Town the Land is For he hath shewed before the Demise of the moyety of the Mannor of Wolverton in Wolverton 3. He shews the Demise of the moyety of the Mannor of Wolverton and of other Lands and assigns the Waste in cutting down Oaks in quodam bosco vocat Wolverton Wood parcel praemissorum and that cannot be for this Wood cannot be parcel of the Mannor of Wolverton and of the other Lands also And for these Causes the Count by the whole Court was holden to be insufficient XXIV Stamfords Case 7 Eliz. Dyer In the Common Pleas HUgh Stamford seised in Fee had Issue A. his eldest Son and B. his younger Son A. had Issue George and Elizabeth by divers Women Hugh made a Feoffment in Fee to the use of himself for life and afterwards to the use of George in tail and afterwards to the use of A. in tail and afterwards to the use of the right Heirs of Hugh Hugh dieth A. dieth George levieth a Fine to the use of himself in tail the remainder over to B. in Fee and dyeth without Issue It was holden by Bendloes Carell Kelloway both the Bromleys and Kingsmill That Elizabeth is barred by this Fine by the Statute of 4 H. 7. 32 H. 8. XXV 7 Eliz. In the Common Pleas. THe Case was this Grandfather Father and Son Lands are given to the Grandfather for life the remainder to the Son in tail The Grandfather and Father joyn in a Feoffment with warranty The Feoffee makes a Lease for years and afterwards conveys the Land to the Grandfather for life the remainder to the Father in Fee The Grandfather and Father die The Son entreth and puts out the Lessee Weston was of Opinion That the Entry of the Son was lawful for it was the Feoffment of the Grandfather and the Confirmation of the Father and the Warranty of the Grandfather collateral to the Father and his Estate but when the Land is re-assured as above is said and afterwards the Son entreth after the death of the Grandfather and Father now he is remitted and the warranty gone by taking back the Estate and the Son is now seised of as high an Estate as his Ancestor was at the time that he departed with the Land by which the warranty is determined Dyer contrary Here had not been any discontinuance if the warranty had not been for the Father was never seised by force of the entail And I conceive that against a warranty collateral one cannot be remitted for it binds the Right as a Fine with Proclamation after the Statute of 4 H. 7. And I conceive that during the possession of the Grandfather the Warranty is but suspended and not determined and although that by the death of the Grandfather it be determined yet having respect to the Lessee it is in being for his Estate is derived out of the Estate which was warranted and which descends with the Warranty Bendloes One cannot make Title by a Collateral Warranty only c. XXVI Simonds Case 8 Eliz. In the Common Pleas. IN a Formedom the Tenant vouched Rose Simonds as Daughter and Heir of Henry Simonds Clerk and because she was within age he prayed that the Parol might demur Bendloes recited the Case to be this A Fine was levied of the Lands to Henry Simonds upon Condition c. who rendred back the Land to the Conusor by the same Fine and that the said Henry Simonds never had any possession or seisin but that which he had mean between the Conusans and the Rendee of which possession the Wife should not be endowed And therefore it is a good Counter-plea to say That the said Rose nor any of her Ancestors c. for that was not such a Seisin upon which Warranty might rise and so if a Feoffment in Fee had been made to the said Henry Simonds to the use of another And of that Opinion was Dyer Iustice for Henry Simonds had not any possession by force of which he might be vouched Welsh contrary For the Fine imports in it self that he hath a Fee and that he hath granted and rendred the same Fee and this Fine amounts to a Feoffment Dyer said to Bendloes The best way for you is to plead the Counter-plea generally and if he estop you by the Fine to demur upon it Afterwards Bendloes moved another matter viz. Henry Simonds was a Priest and therefore Rose is a Bastard and if so then she cannot be vouched as Heir But I would not trust the Bishop to Certifie the Bastardy if I should plead it generally and therefore I will plead the special matter and so it shall be tryed by the Country Dyer and Welsh So you may do if you please and yet if you plead general Bastardy it shall be tryed by the Country for Rose is not a party to the Writ and in such case Bastardy shall be tryed by the Country XXVII Mich. 8
Wife the Executrix should be charged for the not Reparations as well in the time of her Husband as in her own time And if she do make the Reparation depending the Suit yet thereby the Suit shall not abate but it shall be a good cause to qualifie the damages according to that which may be supposed that the party is damnified for the not repairing from the time of the purchase of the Reversion unto the time of the bringing of the Action And it was said by Manwood That by the Recovery of the damages that the Lessee should be excused for ever after for making of Reparations so as if he suffer the Houses for want of Reparations to decay that no Action shall thereupon after be brought for the same but that the Covenant is extinct LXXIII Easter Term. 15 Eliz. In the Common Pleas. LOvelace moved the Court that in the Kings Bench this case was argued upon a Demurrer there A Feoffment was made by one Coxley who took back an Estate for life the remainder to him who should be his Heir at the time of his death and to the Heirs males of his body begotten And afterwards the Tenant for life after the Statute of 32 H. 8. suffered a Recovery to be had against him that that Recovery was good as it was at the Common Law Because the Statute doth not speak but that it shall not be a bar to him who hath the Reversion at the time of the Recovery but this remainder was in Abeyance until the death of the Tenant for life and that in the same Court it was adjudged accordingly in an Ejectione firmae and because the same was a discontinuance the Plaintiff had here brought his Formedon in the Remainder and therefore Lovelace prayed That they might proceed without delays because the Plaintiffs Title appeareth without Essoigns and feigned delays Which Dyer Iustice conceived to be a reasonable request and that it should be well so to do because as he said This Court is debased and lessened and the Kings Bench doth encrease with such Actions which should be sued here for the speed which is there And he said That the delays here were a discredit to the Court so as all Actions almost which do concern the Realty are determined in the Kings Bench in Writs of Ejectione firmae where the Iudgment is Quod recuperet terminum and by that they are put into possession and by such means no Action is in effect brought here but such Actions as cannot be brought there as Formedons Writs of Dower c. to the Slander of the Court and to the Detriment and Loss of the Serjeants at the Bar. And Lovelace shewed That divers mean Feoffments were made c. LXXIV Mich. 15 Eliz. In the Common Pleas. NOte This Case was in Court An Heir Female was in Ward of a common person who tendred to her a marriage viz. his younger Son and she agreed to the Tender and the Guardian died The Heir married the younger Son according to the Tender The Executors of the Guardian brought a Writ de Valore Maritagii supposing the Tender by the Lord to be void by his death But the Court was of a contrary Opinion because the Tender of their Testator was executed LXXV Riches Case Mich. 15 Eliz. In the Common Pleas. ELizabeth Rich brought a Writ of Dower against J.S. who pleaded and Iudgment given for the Defendant and afterwards the Iudgment was reversed And she brought a new Writ of Dower and the Tenant pleaded That he always was ready and yet is c. Against which the Demandant pleaded the first Record to estop the Tenant To which the Tenant pleaded Nul tiel Record It was the Opinion of the Court That here the Demandant cannot conclude the Tenant by that Replication to plead Nul tiel Record For the Iudgment is reversed and so no Record and it cannot be certified a Record But if the Tenant had taken Issue upon the plea of the Tenant absque hoc that he was ready the same might well have been given in Evidence against the Tenant Note That the Case was That the Demandant after the death of her Husband entred into the Land in Demand and continued the possession of it 5 years and afterwards the Heir entred upon which she brought Dower It was agreed in that Case That the Tenant needed not to plead Tout temps prist after his re-entry for the time the Demandant had occupied the same is a sufficient recompence for the Damages LXXVI Vavasors Case Mich. 15 Eliz. In the Common Pleas. NIcholas Ellis seised in Fee of the Mannor of Woodhall Leased the same to William Vavasor and E. his Wife for the life of the Wife the remainder to the right Heirs of the Husband The Husband made a Feoffment in Fee to the use of himself and his Wife for their lives the remainder to his right Heirs The Husband died the Wife held the Land and did Waste in a Park parcel of the Mannor It was moved to the Court If the Writ of Waste should suppose that the Wife held ex dimissione Nicholai Ellis or ex dimissione of her Husband It was the Opinion of the Court That upon this matter the Writ should be general viz. that she held de haereditate J.S. haeredis c. without saying any more either ex dimissione hujus vel illius For she is not in by the Lessor nor by the Feoffees but by the Statute of Vses and therefore the Writ shall be ex haereditate It was also the Opinion of the Iustices That the Wife here is not remitted but that she should be in according to the Term of the Feoffment Note in this Case The Waste was assigned in destroying the Deer in the Park And Meade Serjeant conceived That Waste could not be assigned in the Deer unless the Defendant had destroyed all the Deer And of that Opinion also was Dyer Manwood said If the Lessee of a Dove-house destroyed all the old Pigeons but one or two couple the same is Waste And if a Keeper destroy so many of the Deer so as the ground is become not Parkable the same is Waste although he doth not destroy them all See 8 R. 2. Fitz. Waste 97. If there be sufficient left in a Park Pond c. it is enough LXXVII Mich. 15 Eliz. In the Common Pleas. AN Action upon the Case was brought against Executors They were at Issue Vpon nothing in their hands It was given in Evidence on the Plaintiffs part That a stranger was bound to the Testator in 100 l. for performance of covenants which were broken For which the Executors brought Debt upon the Obligation depending which Suit both parties submitted themselves to the Arbitrament of A. and B. who awarded That the Obligor should pay to the Executors 70 l. in full satisfaction c. and that the Executors should release c. which was done accordingly And it was agreed by the Court That by the Release it
Plaintiff ad requisitionem dicti Davidis repararet And the Plaintiff declares That reparavit generally without saying 2 Cro. 404. That ad requisitionem Davidis reparavit And that is not the Reparation intended in the Consideration i. e. reparatio ad requisitionem c. but a Reparation of his own head and at his pleasure And for this Cause the Iudgment was stayed CXXXII Wrennam and Bullman's Case Pasch 26 Eliz. In the Common Pleas. 2 Len. 52. 1 Len. 282. WRennam brought an Action upon the Statute of 1 2 Phil. Mar. against Bullman for unlawful impounding of Distresses and was Nonsuit It was moved by Shuttleworth Serjeant If the Defendant should have Costs upon the Statute of 23 H. 8. And it was Adjudged That he should not And that appears clearly upon the words of the Statute c. for this Action is not conceived upon any matter which is comprised within the said Statute and also the Statute upon which this Action is grounded was made after the said Statute of 23 H. 8. which gives Costs and therefore the said Statute of 23 H. 8. and the remedy of it cannot extend to any action done by 1 2 Phil. Mary And Rhodes Iustice said It was so adjudged in 8 Eliz. CXXXIII Mich. 26 Eliz. In the Kings Bench. 2 Len. 161. Dyer 291. IN a Formedon of a Mannor The Tenant pleaded Ioynt-Tenancy by Fine with J.S. The Demandant averred the Tenant sole Tenant as the Writ supposed and upon that it was found and tryed for the Demandant Vpon which a Writ of Error was brought and Error assigned in this Because where Ioynt-Tenancy is pleaded by Fine the Writ ought to have abated without any Averment by the Demandant against it and the Averment had been received against Law c. Shuttleworth At the Common-Law If the Tenant had pleaded Ioynt-Tenancy by Deed the Writ should have abated without any Averment but that was remedied by the Statute of 34 E. 1. But Ioynt-Tenancy by Fine doth remain as it was at the Common Law For he hath satis supplicii because by his Plea if it be false he hath by way of Conclusion given the moyety of the Land in demand to him with whom he hath pleaded Ioynt-Tenancy And the Law shall never intend that he would so sleightly depart with his Land for the abatement of a Writ As in a Praecipe quod reddat the Tenant confesseth himself to be a Villein of a stranger the Writ shall abate without any Averment Free and of Free estate for the Law intends that the Tenant will not inthral himself without cause Wray to the same purpose But the Demandant may confess and avoid the Fine as to say That he who levied the Fine was his Disseisor upon whom he hath before entred And if Tenant in Feesimple be impleaded and he saith That he is Tenant for life the remainder over to A. in Fee and prayeth in Aid of A. the Demandant shall not take Averment That the Tenant at the time of the Writ brought was seised in Fee. Note In this Formedon Ioynt-Tenancy was pleaded but as to parcel And it was holden by Wray and Southcote That the whole Writ should abate the whole Writ against all the Defendants And so where the Demandant enters into parcel of the Land in demand if the thing in demand be an entire thing the Writ shall abate in all In this Writ the Demandant ought to have averred in his Writ an especial foreprise of the Land parcel of the Land in demand whereof the Ioynt-Tenancy by the Fine is pleaded For this dismembring of the Mannor and distraction of the Land of which the Ioynt-Tenancy is pleaded is paravail and under the gift whereof the Formedon is conceived and therefore in respect of the title of the Demandant it remains in right parcel of the Mannor and therefore ought to be demanded accordingly with a foreprise But if A. giveth unto B. a Mannor except 10 Acres in tail there if after upon any Discontinuance the issue in tail is to have a Formedon in such case there needs not any foreprise for the said 10 Acres for they were severed from the Mannor upon the gift But if Lands in demand be several as 20 Acres except 2 Acres this foreprise is not good See Temps E. 1. Fitz. Brief 866. Praecipe c. unam bovatam terrae forprise one Sellion and the Writ was abated for every demand ought to be certain but a Sellion is but a parcel of Land uncertain as to the quantity in some places an Acre in some more in some less Another Point was Because the Tenant hath admitted and accepted this Averment scil sole Tenant as the Writ supposeth And the Question was If the Court notwithstanding the Admittance of the Tenant ought without Exception of the party Ex Officio to abate the Writ And it was the Opinion of Wray Chief Iustice That it should For it is a positive Law As if a Woman bring an Appeal of Murder upon the death of her Brother and the Defendant doth admit it without a Challenge or Exception yet the Court ought to abate the Appeal 10 E. 4. 7. See the principal Case there Non ideo puniatur Dominus c. And if an Action be brought against an Hostler upon the Common Custom of the Realm and in the Writ he is not named Common Hostler yet the Court shall abate the Writ Ex Officio See 11 H. 4. and 38 H. 6. 42. CXXXIV Mich. 26 Eliz. In the Common Pleas. A. Seised of Lands in the right of his Wife for the Term of the life of the Wife made a Feoffment in Fee to the use of his said Wife for her life It was holden in that Case That the Wife was remitted And it is not like Amy Townsends Case Plow Com. 1 2 Phil. and Mar. 111. For in the said Case the Entry of the Wife was not lawful for she was Tenant in tail which Estate was discontinued by the Feoffment of her Husband And Periam Iustice cited a Case Sidenham's Case Bacon seised in the right of his Wife for the Term of the life of the Wife They both surrendred and took back the Lands to them and a third person And it was holden That the Wife was not presently remitted but after the death of her Husband she might disagree to the Estate CXXXV Harper and Berrisford's Case Mich. 26 Eliz. In the Common Pleas. IN a Writ of Partition The Defendant demanded Iudgment of the Writ because the Writ is Quare-cum A. teneat c. pro indiviso c 4 mille acras whereas it should be Quatuor Mille acrarum And many Grammarians were cited all which agreed That it was good both ways viz. Mille Acras or Mille Acrarum And Rhodes Iustice said That Cowper in Thesauro suo Linguae Latinae saith Quod Mille fere jungitur Genitivo Ergo non semper Wherefore Anderson with the assent of the other Iustices Ruled
Lease for years by the Countess of Oxford to the Queen One Error was assigned because whereas the Issue was joyned upon the Intrusion and the taking of the profits and so two matters put in Issue and the Iury have found Payn guilty of the Intrusion but have said nothing of the taking of the profits and so the Verdict doth not meet fully with the Issue The great matter of the Case was upon this Point The Information is That the Assignment of the Queen was 16 Maii the Intrusion 17 Maii the Inrollment of the Deed of Assignment 18 Maii And so it appeared upon the Record that the Intrusion is supposed to be done before that the Queen had any Interest in the Land in which the Intrusion is supposed for nothing was in the Queen before the Enrollment For the Queen is a Corporation of State of such Prerogative and Excellency That she cannot give or take an Interest in Land without matter of Record And this Lease is a Chattel-real and an Interest in Land. See as to the Inrollment 1 H. 7. 30. 31. 5 E. 4. 7. 7 E. 4. 16. But I agree That if Lessee for years be Outlawed the Lease shall be in the King without Office for the Outlawry it self is a sufficient Record to entitle the King unto it If the Queen makes a Lease for years of Lands rendring Rent with a Clause That if the Rent be behind that the Lease shall cease if the Rent be not paid It was agreed here in Sir Moile Finch's Case That the Lessee continuing his possession shall not be accounted an Intruder before Office thereof found but he shall be Accomptant to the Queen for the profits as Bailiff of his own wrong but here we are charged with Intrusion It hath been doubted If personal things are in the King without Office 37 H. 6. But now it is clear they are As 35 E. 3. Br. Prerogat 113. The Villein of the King purchaseth goods the property thereof is in the King without seisure and so it is of all personal Chattels because they are transitory 1 H. 7. 17. 4 H. 7. 1. 39 H. 6. 26. And here it appeareth upon the Record that this Deed of Assignment was delivered to Baron Clark 16 May at Westm and that was Ascension-day and so non dies Juridicus and so no Court there then holden and then the said Deed was not delivered in Court of Record and then not delivered to him as a Iudge but as a private person although that it was delivered to the use of the Queen But in 37 H. 6. there is some Opinion That if such a Deed be delivered in Court to one of the Barons or be put into the Kings Coffers that then it is a Record Atkins to the contrary And to the first Exception It is to be known That in every Plea where a Contempt is laid to the charge of the Defendant he ought first to excuse his Contempt And therefore here the Exordium of the Plea is Quoad venire vi armis quicquid est in Contemptu Dominae Reginae necnon de tota ulteriore transgressione Contemptu per ipsos supposit Quod ipse in nullo est inde Culpabilis And afterwards plead over And so it is in an Action of Trespass And also upon the Statute of 8 H. 6. of Forcible Entry and here the Issue upon the Contempt doth ensue the other Issue For if the other Issue is found against the Defendant so also is this As to the other point I agree That a Corporation cannot take or speak without writing And the King being a Corporation and who only makes Corporations cannot take but by writing of as high a nature scil by Record And we have here a Record as is granted by the other side being enrolled 18 May which was delivered 16 May and being once enrolled it hath relation to the time of the delivery i. e. to 16 May And then Payn upon the whole matter was an Intrudor 17 May and an Intrudor by his Entry doth not gain any thing against the Queen and therefore the Information of the Intrusion is diversis diebus vicibus intrusit althought it be but one continued possession and therefore every Instant during his possession he is an Intrudor As to the delivery of the Deed of Assignment upon the day of the Ascension which is not dies Juridicus that is not material As 12 E. 4. 8. by Pigot If the day of Retorn of a Writ i. e. 4 to die falls upon a Sunday it is good enough although no Court can then be holden but the day following and the Plea is not discontinued And this delivery of the Deed of Assignment might be made out of Term there upon any day in the Term which is not dies Juridicus Contrary where the thing is of necessity to be done in the Term as in the Case between Fish and Brocket of Proclamations made upon a Fine For a Man may acknowledge a Recognizance or a Deed to be enrolled in the time of Vacation c. Tanfield As to the Interest the Enrollment hath relation not as to the profits for Payn cannot be Intrudor 17 May by any Relation Popham The Queens Attorny When an Information of Intrusion and taking of the profits is here exhibited the Defendant ought to justifie his Entry and if the Entry be found against him so as his Entry is an Intrusion then the illegal taking of the profits is found also And he said That the Deed acknowledged and delivered to the Baron is a Record although not enrolled be the acknowledgment thereof in Court or out of Court. If an Information upon a penal Law be exhibited to a Baron of the Exchequer out of Court and afterwards another Informer exhibits another Information upon the same Statute for the same Offence against the same person and that is exhibited in the Court before the first The first Information shall be preferred and the Defendant shall answer to that and not to the other and for exhibiting the same in Court or out of Court it is not material And the Assignment when it is enrolled hath relation unto the acknowledging of it A Reversion is granted to one for life the Remainder to the King the particular Tenant attorns to the King the Remainder is not in the King by the Attornment but if the Deed be afterwards enrolled it shall be said to be in the King from the time of the Attornment And the King shall have the benefit of all the mean profits from the time of the Attornment A Lease for years is made by the King reserving Rent with a clause That if the Rent be not paid that the Lease shall be void the Rent is not paid 10 years after an Office is found the King shall be answered all the profits from the time of default in payment of the Rent And although no Intrusion can be laid in the Information 17 May yet it shall be good for
here it is found That she clearly departed out of London but they have not found that she dwelt in the Country c. but only that she went to Melton but she ought to do doth before her Estate shall cease It was argued by Towse for the Plaintiff That the Defendant ought to be found guilty of the Ejectment For it is found That the Defendant entred before the Commandment of Anne but they have not found that Anne was alive Fenner Iustice the same is well enough and so it was holden 18 Eliz. in this Court for although her life be not found yet it shall be intended that she was alive For the Iury did not doubt of it and the Conclusion of the Verdict is That if it shall seem to the Court that his Entry is lawful Then the Defendant is not guilty So as the doubt of the Iury is only upon that point Which Wray concessit Gawdy Iustice If one Deviseth Land to one for life upon Condition That his Estate shall cease which is all one with the Case at Bar and after the breach of the Condition he continueth in possessions he is not Tenant for life but Tenant at sufferance Wray Chief Iustice Tenant for the life of another continues in possession after the death of Cestuy que vie he hath not any Freehold remaining in him for if he dieth nothing descends And so it was lately adjudged by all the Iustices of England upon a Conference had between them And the Book of 18 E. 4. is not Law. Which Gawdy Iustice concessit See 35 H. 8. 57. acc And he said That the same shall be as a Limitation by which the Estate shall cease without an Entry And here in this Case because they have not found That Anne had dwelt in the Country here is no breach of the Condition in the Case And afterwards by the Advice of the whole Court Iudgment was given for the Defendant Quod querens nihil Capiat per Billam CCV Cadee and Oliver's Case Mich. 29 30 Eliz. In the Kings Bench. IN an Ejectione Firmae by Cadee against Oliver 1 Cro. 152. Roll. Tit. Grant. 48. of a House in Holborn c. The Case was The Lord Mountjoy and the Lady Katherine his Wife seised of the said House and of other Lands in Fee in the right of the Wife 6 Eliz. acknowledged a Statute-Staple of 1200 l. to Sir Lyonel Ducket Afterwards 9 Eliz. the said Lord Mountjoy and his said Wife Leased the said House to Hoskins for 21 years And afterwards by Indenture 11 Eliz. they Leased the same to Sir Tho. Cotton for 99 years to begin at Michaelmas last past 12 Eliz. Sir Lyonel Ducket extended his Statute and the Land extended was delivered to him at 53 l. 7 s. per annum who held the same until 22 Eliz. Anno 23 Eliz. the Lord Mountjoy and his Wife levied a Fine to Perry to the use of Perry and his Heirs 27 Eliz. Sir Thomas Cotton not being upon the Land granted omnia tunc bona catalla sua to Robert Cotton his Son 28 Eliz. the Lady Mountjoy died Mich. 29 Eliz. the Lease to Hoskins expired Perry entred and Leased the House to Oliver the Defendant for 21 years And afterwards Robert Cotton entred and Leased the House c. to the Plaintiff It was first moved by Brantingham and argued by him If this Lease for 99 years which was made to begin after the Lease made to Hoskins should pass to Robert Cotton by the words aforesaid But the Court eased him from arguing of that point for it was holden That it passed notwithstanding the word tunc 1 Cro. 386. Another matter argued by him was because at the time of the Grant the Lands were in extent and so the said Sir Thomas Cotton had but a possibility If therefore the said Grant made during the Extent was good And he argued That it was for it is more than a bare possibility for it is an Interest vested And in some Cases a possibility may be granted As 19 H. 6. 2. The King granted to a Prior That when any Tenth is granted to the King by the Clergy his House shall be discharged of it c. And 19 E. 2. Avowry 224. The Lord grants to his Tenant That if he dieth his Heir within age that such Heir shall not be in Ward So 21 E. 4. 44. A Grant unto an Abbot to be discharged of the Collectorship of Tenths when it shall be granted by the Clergy It hath been Objected That the Term for 99 years is suspended therefore it cannot be granted during the suspension But the same is not so for a thing suspended may be granted As 15 Eliz. Dyer 319. Husband and Wife Ioynt-Tenants of Lands in Fee The Queen having a Rent out of it in Fee giveth the Rent to the Husband and his Heirs now the Husband Deviseth the said Rent and dieth the same is good a Devise notwithstanding the suspension And he cited the Cases 16 E. 3. Quid juris clamat 22. And 20 E. 3. ibid. 31. A Lease is made to one for life and if he dieth within 20 years that his Executors and Assigns shall hold the Land until the expiration of the 20 years the said Interest may be granted Which Wray Chief Iustice denyed See Gravenors Case 3 4 Ma. Dyer 150. such Interest is void It was further moved by him and argued If the Conusee of the Fine might avoid the Lease made to Sir Thomas Cotten And he said He could not for he is in under the Lessors So is 34 E. 1. Recovery in value 36. see the Case there And here although the Wife after the death of her Husband may affirm or disaffirm the Lease at her Election yet this Election is not transferred to the Conusee by the Fine but the Conusee shall be bound by the Fine See 33 H. 8. Dyer 51. As Tenant in tail makes a Lease for years not warranted by the Statute and dieth the Issue alieneth the Land by Fine before affirmation or disaffirmation of the Lease by acceptance or Entry the Conusee cannot avoid this Lease for the Liberty is not transferred Which Gawdy Iustice concessit And Election cannot be transferred over to the prejudice of another person As if a Rent de novo be granted to the Father in Fee who dieth before Election the Heir cannot make it an Annuity to defeat the Dower of the Wife quod Curia concessit It was also moved by Brantingham If the Lessee might enter upon the Conusee of the Statute after his Extent expired without suing forth a Scire facias But the Court discharged him from arguing that Point for that by the Death of the Lady Mountjoy the Extent was void and therefore the Feoffee or Conusee might avoid it by Entry And so Wray Chief Iustice said it had been adjudged in the Court of Common Pleas. At another day the Case was argued by Stephens on the part of
was not so for it became void by matter of later time scil by the descent of the Feesimple For if one of the Daughters had died without Issue before the death of Robert so as the House of such Daughter had come to Robert and the other Sister there had been no Coparcener for the Son had all the Fee and the moyety of it is executed and the moyety expectant and the Sister hath the moyety for life and then the Devise is not good Also here are two survivors so as nothing is to be divided and therefore the Law shall say That the House of Robert is descended scil the Fee of it to the Daughter of Christien and Joan. And so Iudgment was given against the Husband who claimed to be Tenant by the Curtesie of the whole Land and Messuage CCXXXIII Large's Case Mich. 29 Eliz. In the Kings Bench. 2 Len. 82. IN an Action upon the Case the Case was this A. seised of Lands in Fee Devised the same to his Wife till William his younger Son should come to the age of 22 years the remainder when the said William should come to such age of his Lands in D. to his two Sons Alexander and John the remainder of his Lands in C. to two other of his Sons upon Condition Quod si aliquis dictorum filiorum suorum circumibit vendere terram suam before his said Son William should attain his said age of 22 years imperpetuum perderet eam And before such age two of his Sons Leased their parts which accrued to them by the Will of their Father for 60 years and so from 60 years to 60 years till 240 years were expired It was Argued by Bois That Alexander and John are Ioynt-Tenants and not Tenants in Common notwithstanding the Opinion of Audley 30 H. 8. Br. Devises 29. And he argued also That the said Leases from 60 years to 60 years is not within the Condition of the Devise for it is not a sale from which they only are restrained and so is it of a Ioynture made by any of the Sons to their Wives On the contrary It was argued because this remainder doth not vest presently for it is incertain if it shall vest or not For if William should die before he came to the age aforesaid it was conceived that the remainder was void 34. E. 3. Fitz. Formedon 68. A Man deviseth Land to his Wife for life so that if the said Wife be disturbed that the Land shall remain over in Fee scil to D. here is not any remainder until the Wife be disturbed So a Devise unto a Woman so long as she shall remain sole and that then it shall remain to B. here this remainder shall not begin till the marriage And this Condition of restraint of Alienation is good for he is not altogether restrained but for a time scil until his Son shall come to the age of 22 years As a Feoffment upon Condition That he shall not alien to J.S. See 29 H. 8. Br. Mortmain 39. A Lease made for 100 years and so from 100 years to 100 years until 800 years be expired is Mortmain And see the Statute de Religiosis The words are emere praesumat vendere A Lease for years is within such words emere vendere Also by this Lease the Will is defrauded and where the Statute of Gloucester Cap. 3. Wills That if a Man aliens Tenements which he holdeth by the Law of England with warranty the Son shall not be barred and yet if Tenant by the Curtesie be disseised to whom he releaseth with warranty the same is within the said Statute and yet a Release and an Alienation are not the same because they are in the like mischief and if the Sons might make a Lease for 240 years they might make a Lease for 2000 years So if the Sons had acknowledged a Statute of such a sum as amounted to the value of the Land it had been within the Condition It was holden That where the words are Circumibit vendere terram imperpetuum perdert this word imperpetuum should be referred to perdere and not to vendere Fenner This Lease is not within the word Sell For if the Custom be That an Enfant of the age of 15 years may sell his Land yet by that he cannot devise it Note That afterwards the words of the Condition set down in the Will in English were read viz. Shall go about to sell his part shall for ever lose the same And then it is clear that this word imperpetuum shall be referred in Construction to perdere and not to vendere for this word Shall is inserted betwixt both CCXXXIV Mich. 29 Eliz. In the Common Pleas. IN a Formedon The Tenant pleaded a Fine with proclamations The Demandant replyed Nul tiel Record And the truth of the Case was That the Record of the Fine which remained with the Chirographer did warrant the Plea but that which remained with the Custos Brevium did not warrant it and both these Records were shewed to the Court. And Rhodes Iustice cited a President 26 Eliz. Where by the advice of all the Iustices of England where such Records differ the Record remaining with the Custos Brevium was amended and made according to the Record remaining with the Chirographer Which Windham concessit And afterwards the said President was shewed in which was set down all the proceedings in the amending of it and the names of all the Iustices by whose direction the Record was amended were set down in it And that the said President was written and the amendment of the said Record recorded by the Commandment and appointment of the said Iustices in perpetuam rei memoriam And the reason which induced the said Iustices to make such Order is here written because they took it That the Note remaining with the Chirographer est principale Recordum CCXXXV Sir Gervase Clifton's Case Mich. 29 Eliz. In the Kings Bench. 4 Len. 199. IN a Quo Warranto against Sir Gervase Clifton It was shewed That the said Sir Gervase was seised of a Mannor and of a House in which he claimed to have a Court with View of Frank-Pledge and that he without any Grant or other authority usurpavit Libertates praedictas The Defendant pleaded Quod non usurpavit Libertates praedictas infra Messuagium praedict modo forma And upon that there was a Demurrer in Law For the Defendant ought to have said Non usurpavit Libertates praedictas nec eorum aliquam for he ought to answer singulatim And also he ought to have pleaded as well to the Mannor as to the House For if the Defendant hath holden Court within any place within the Mannor it is sufficient See 33 H. 8. Br. Franc. sans ceo 364. An Information was in the Exchequer That the Defendant had bought Wooll of A.B. contra Statutum The Defendant pleaded That he had not bought of A. and B. The Plea was not allowed but he
ad Beneficium Ecclesiasticum pertinet Examinatio ad Judicium Ecclesiasticum 40 E. 3. 25. And see the Statute of 18 Eliz. that Pars gravata in the Case of Maintenance is not tyed to a year And this suit is conceived to be in such Quality being a private grievance to the party himself the King not being party but only the party grieved But where the penalty is expresly given to the King and him that shall sue there all the proceedings ought to be in both their names And Manwood Chief Baron said That this Issue shall be tryed by the Country Which see in the Book of Entries 396. CCCXXVII Owen Morgan's Case Mich. 32 33 Eliz. In the Exchequer OWen Morgan Exhibited an Information upon the Statute of Usury for an usurious Mortgage made and charged the Defendant That Cepit ultra 10 l. in Cl. for the forbearance for one year and that was out of the Issues Rents and Profits which he took in Middlesex of Lands in Glamorganshire in Wales Mortgaged to the Defendant Manwood Chief Baron said That one might take the Rents of Lands in Wales in the County of Middlesex but a Man cannot take the Issues and Profits of the Lands but where the Lands are And Leak 's Case was cited Where an Information was brought for cutting down of Wood and converting it into Coals And Leak the Informer laid the cutting to be in the County where the Wood grew but the Conversion of it into Coals in the County of Middlesex And Manwood said in the principal case That the taking of the Issues and Profits ought to have been layed where the Land was And such was the Opinion of the whole Court. CCCXXVIII Curson's Case Mich. 32 33 Eliz. In the Exchequer CUrson acknowledged a Statute to Starkey 4 Len. 10. Ante 239. Alderman of London and afterwards he acknowledged another Statute to one Hampden who assigned the same to Fitton who assigned the same to the Queen Starkey sued forth Execution upon his Statute and thereupon the Land is extended of Curson and he hath a Liberate of it It was agreed by all the Barons That if Starkey had execution upon the Statute before the Queen his Execution should stand against the Queen and the Queen should not put him out And it was further agreed by them That if A. recovers a Debt in the Common Pleas so as he hath title to sue forth Execution by Elegit and the Defendant sells his Lands and afterwards A. assigns his Execution to the Queen That the Queen should not have prerogative against the Feoffee to have execution of the whole Land. And it was also holden by Manwood Chief Baron That if Execution be had upon a puisne Statute and the same is afterwards avoided by more ancient Statute and afterwards the ancient Statute is satisfied That now the puisne Recognisee may re-enter without suing forth any new Execution CCCXXIX Butler and Lightfoot's Case Mich. 32 33 Eliz. In the Exchquer IN this Case It was holden by the Barons 4 Len. 9. That if Tenant for life be of a Copyhold the Remainder over in Fee to another he in the Remainder may surrender his Estate if there be not any particular Custom to the contrary for the Estate of Tenant for life and him in the remainder are but one Estate and the admittance of the particular Tenant is the admittance also of him in the Remainder CCCXXX Knight and Norton's Case Mich. 32 Eliz. In the Common Pleas. IT was holden in this Case That duress of Imprisonment is not intended but where the party is wrongfully imprisoned until he make the Bond and not where a Man is lawfully imprisoned for another cause and for his delivery he makes a Bond for that is not per duritiam imprisonamenti And if in such Case duresse be pleaded the other may say of his own accord sine duritia imprisonamenti without saying absque hoc that it was per duritiam imprisonamenti And so it was also holden in the Kings Bench. See 4 E. 4. 17. 12 E. 4. 7. CCCXXXI Hungate and Hall's Case Trin. 32 Eliz. In the Exchequer Ante 239. 4 Len. 10. THe Case was Curson acknowledged a Statute to Alderman Starkey and afterwards acknowledged another to Hampdem which was assigned to the Queen Afterwards the Lands of Curson were extended for Starkey and a Liberate thereof It was holden by the Court That the same was a good Execution and that the Queen should not avoid it But if the Land had been extended at the suit of the Queen then the Execution of the Queen should hold place although it were a Statute of a puisne date And by Clark Baron If a Recognizance acknowledged by a Subject be assigned to the Queen It hath been a Question If all the Lands of the Conusor shall be extended or but the moyety as it shall be at the suit of the Conusee himself It was holden That all the Lands should be extended CCCXXXII The Lord Gray's Case Trin. 32 Eliz. In the Exchequer THe Lord Gray Tenant of the King of Lands holden in Capite by Licence of the King made a Feoffment of the Lands in Fee and afterwards levied a Fine for further assurance And upon Process the party came into the Court and shewed this matter And the party was advised by the Court to aver That the said Fine was for further assurance And then upon such averment he should be discharged without any Pardon sued forth for the Fine c. CCCXXXIII Sir Walter Waller's Case Trin. 32 Eliz. In the Exchequer IN Sir Walter Waller's Case It was holden in the Court of Exchequer That a Debt of Record as upon a Iudgment c. could not be attached by the Custom of London 1 Len. 29. And so it was holden in the Case of Sir John Perrot in the Common Pleas. 4 Len. 44. And it was said by Cook That such a debt could not be assigned upon the Statute of Bankrupts CCCXXXIV Sir Brian Tucke's Case Mich. 32 Eliz. In the Exchequer IN this Case It was holden by all the Barons clearly Office of Executors 232. Roll. 920. Savile 40. That the Executor of an Executor should not be charged with a Devastavit made by the Executor of the first Testator no not in the Case of the King because it is a personal wrong only CCCXXXV Fines and the Lord Dacre's Case Mich. 32 Eliz. In the Exchequer THe Case was Tenant in tail Post 261. 4 Len. 97. the Remainder of Lands in chief levyed a Fine of them without Licence of the King and if the Tenants of the Lord Dacres should be charged for the Fine was argued For the Case was That the Lord Dacres was Tenant in tail the Remainder in tail to Philip Fines And it was holden by all the Barons That the Tenants Lands should be discharged But it was holden That if the Conusor had any other Lands within England the Fine might be levyed
the Rent by the Father to the Son is fraudulent and so shall be intended if the contrary be not shewed and averred And so it was of late adjudged in the Court of Wards Where a Man alieneth to his Son and Heir for Mony and Mony in truth is paid yet notwithstanding it shall be intended fraudulent unless the contrary be shewed and averred Hanham Serjeant This Grant shall enure first as the Grant of Tenant in tail and after the death of the Tenant in tail without Issue it shall be the Grant of him in the Remainder And to this purpose he put Newdegate's Case 7 Eliz. Dyer 234. Lessee for life and he in the Reversion Lease for years by Indenture That during the life of Lessee for life is his Demise only and the Confirmation of him in the Reversion but after the death of the Lessee for life it is the Lease and Demise of him in the Reversion and he shall have an Action of Waste ex dimissione sua propria without shewing the special matter in the Count. And if Tenant in tail granteth a Rent in Fee and he in the Reversion confirm the Grant it is good See Litt. 121. And he said That the Recoveror is in the Per for it was holden in Winter's Case That if a Man makes a Lease for years rendring Rent with clause of Re-entry and afterwards suffereth a Common Recovery That such a Recoveror is an Assignee within the Statute of 32 H. 8. to take benefit of a Condition and Recoveries are now common Conveyances And if Tenant for life be the Remainder over in Fee and Tenant for life grants a Rent-Charge and afterwards ceaseth and the Lord recovereth in a Cessavit he shall hold the Land charged And as to the Collusion it is not shewed in the pleading That the Grant was made by Collusion for if the Collusion be not apparent the Iustices without averment of it are not bounden to take Notice of it Cowper Serjeant Here are two several Grants and one Grant intire in the Letter may enure as several Grants as if two Tenants in Common grant a Rent of 10 s. here are several Grants and he shall have several Rents of 10 s. And if A. disseiseth B. of Black-Acre and C. disseiseth B. of White-Acre and afterwards by one Deed releaseth to A. and C. the same shall enure as several releases upon their several possessions And he in his Argument relied much upon the Collusion and this Grant shall be taken by the Iustices to be fraudulent for it was made 20 Eliz. and the Recovery was 21 Eliz. and in 27 Eliz. came the Statute Beamount Serjeant This Grant shall enure as several Grants i.e. as a Grant of Tenant in tail and afterwards as of him in the Reversion Two Ioynt-Tenants Enfants make a Feoffment They shall have several Writs of Dum fuit infra aetatem as upon several Feoffments 19 H. 6. 43. Two Coparceners take Husbands who discontinue and die their Wives shall have several Writs of Cui in vita and yet the Discontinuance was joynt And 15 H. 7. 14. If 3 Coparceners be and upon partition one of them granteth to the two others Rent of 20 s. per annum for equality of partition that Rent shall be in the nature of Coparceners and so shall descend and shall not go to the Survivour but by descent See 21 E. 3. 50. Also admit that it is the Confirmation of him in the Remainder yet after the death of the Tenant in tail without Issue now it is become the Grant of him in the Remainder And to that purpose he cited Newdegate's Case 7 Eliz. Dyer before cited But posito that it be the sole Grant of the Tenant in tail yet here is not any Covin apparent for Covin apparent ought to be averred and proved otherwise the Iudges of our Law cannot adjudge upon it for they cannot judge upon probabilities as the Iudges of the Civil Law do for so they should many times minister Injustice in the place of Iustice And that the same is not Covin apparent although it be made to his Son he vouched 19 H. 6. 30. and 47 E. 3. 16. Where such a Feoffment to re-enfeoff the Heir of the Feoffor when he cometh of full age is not in it self Covin apparent but it ought to be expresly averred And he cited also Warnford's Case 3 Eliz. Dyer 193. And also he cited 17 Eliz. Dyer 341. upon the Statute of 27 H. 8. of Monasteries Where there is a Proviso Forasmuch as some of the Chief Governours of such Religious Houses have lately fraudulently and craftily made Leases c. to the great decay and diminution of their Houses That all such Leases c. made within one year before the making of this Act shall be void c. And also there is a Proviso That such persons as have Leases whereupon the old Rent is reserved shall enjoy their Leases c. The Case was That an Abbot made a Lease for 60 years 47 days before the making of the said Act upon which the ancient Rent was not reserved It was holden there That although the Lease was within the words of the Statute because made within a year yet it shall not be intended Covinous without an express averment of it for it may be it was made bona fide See Librum Yelverton Serjeant This is a joynt Grant but yet it shall charge the several Estates when they come into possession Also he put this Case Cestuy que Use and the Feoffees after the Statute of 1 R. 3. and before 27 H. 8. joyn in a grant of a Rent It shall enure as several Grants in respect of their several authorities scil one by the Statute of 1 R. 3. and the other by the Common-Law And as to the Covin he conceived Tat it is Covin apparent and needed not to be averred and that appeareth by the suffering of the Common Recovery CCCXL Brokesby and Wickham's Case Hill. 32 Eliz. In the Common Pleas. 1 Len. 167. 3 Cro. 173. Owen Rep. 85 86. A Quare Impedit was brought by Bartholomew Brokesby against the Bishop of Lincoln and Wickham Pasch 30 Eliz. Rot. 1815. The Case was That Robert Brokesby was seised of the Mannor of Sholby in Fee to which the Advowson was appendant and the Church being full granted to Humphrey Brokesby and the Plaintiff his two Sons the next Avoidance of the said Church Afterwards the Church became void Humphrey by Deed released all his right estate and interest which then he had of and in the Advowson of the Church aforesaid for the said Avoidance Bartholomew sole presented and the Defendants did disturb him The Bishop pleaded That he claimed nothing but as Ordinary Wickham pleaded a Lease made of the Mannor with the appurtenances by the said Bartholomew to one Starkey for years before the Grant made ut supra to Humphrey and Bartholomew which Starkey presented him Vpon which they were at Issue and found for
where shall be good where not p. 147 Of intrusion where there is no Record to prove it if the error lieth upon it p. 147 Issues joyned A not joyning in it is helped by the Statute of Jeofails not a mis-joyning in it p. 66 Upon a Plea which is tryed in a foreign County and found for the Plaintiff in what Court the Judgment shall be p. 137 Jure Patronatus Where the awarding of it is necessary where not p. 98 Jurors Where upon pain of Attaint they are to take notice of a transient thing done in another County p. 77 K. KING Not bound to take notice of a Condition made by a common person p. 126 Cannot take an interest in Land without matter of Record p. 155 L. LAchess In pleading where it shall turn to the prejudice of the Parties p. 63 Leases For certain years habendum to his Executors if good and what interest passeth and to whom it passeth p. 32 Power to make Leases not to extend to Leases to be made in reversion p. 132 Where Leases are void by the Statute of 31 H. 8. of Monasteries p. 164 Made by Dean and Chapter where void by the misrecital of their name of Corporation p. 220 Livery Of Lands in Ward not to be sued by parcels p. 25 M. MAintenance Where a Grant made shall be said to be for maintenance within the Statute of 32 H. 8. p. 79 Misnosmer Where shall not prejudice a Devise p. 19 N. NOnsuit If after a Demurrer p. 28 O. OBligation By what words good by what not p. 19 Where the word Quemlibet in an Obligation shall make it joynt and not several p. 206 Taken by one Blacksmith of another Blacksmith that he shall not exercise his Trade in such a Town void p. 207 To be good although not made after the usual form p. 223 May be assigned to the King without Deed enrolled p. 234 Office Trove Personal things are in the King without Office found p. 145 Where an Estate shall be setled in the King without Office found where not p. 186 187 188 Outlawry Where a Man is to annul an Outlawry his person shall not be disabled by another Outlawry p. 232 P. PArtition The Writ was Quare teneant Quatuor mille acras where it ought to be 4 Mille acrarum yet good p. 94 Where it is not necessary to shew and settle forth the Estate particularly in the Writ p. 231 Petition Where an Entry is not lawful upon the King without suing a Petition p. 15 Plenarty Returned by the Bishop where not good p. 138 Pleadings and Pleas Where not good for incertainty p. 8 A Conveyance cannot be pleaded unless it be sealed p. 94 Of Non Damnificatus generally where good p. 118 In a Writ of Right upon a Custom to hold a Court of the Plea must be shewed before whom the Plea is to be holden by the Customs p. 148 Of Letters Patents and not saying Sigillo Angliae sigillat not good p. 193 Of the general Issue in Wast viz. Null wast fait where dangerous p. 203 Of Outlawry in the Plaintiff after Imparlance in Trover and Conversion good p. 215 Praemunire Where the not prosecuting of it by the Attorny-General shall take away the suit of the Informer p. 139 Prescription Of every Inhabitant to have Common if good p. 202 Of what good and where and of what not p. 202 To have Estovers at liberty in cutting down Wood in a Forest unless in Fawning-time where good p. 218 Priviledge Of the Exchequer not granted to him who pays First-fruits and Tenths p. 258 Possibility Not allowed to the Kings servants in the Exchequer who is sued in B.R. p. 22 Not grantable or demiseable p. 157 Prohibition Not grantable upon a suggestion that Tythe had been paid to the Vicar c. and time out c. p. 203 Proviso Where a Condition where a Covenant where a Limitation p. 225 Q. QVo Warranto Of Liberty Plea in it what good what not p. 73 184 R. REcital The not recital of the names of the Occupiers of a Lease of Lands do not avoid the Demise thereof p. 235 Records A Deed acknowledged to the King and delivered to the Barons of the Exchequer is a Record though not mentioned p. 146 Of a Fine remaining with the Custos Brevium amended and made according to the Record made and remaining with the Chyrographers p. 183 Recusants Where Lands conveyed by a Recusant shall be subject to the Statute of 23 Eliz. concerning Recusants and the penalties thereof p. 148 Release To a Tenant at sufferance where not good p. 152 By the Feoffees of Cestuy que use to his Lessee for years how it shall enure p. 196 Receit By a Termor for years to save his Term Remitter p. 2 10 93 Rents Where upon a Fine levied of the Land the Rent passeth without Attornment p. 103 Payment of it upon an extent of it and of the reversion saves the danger of a Condition supposed to be broken p. 113 Where apportioned where not p. 125 126 Granted by Fine varyeth from the Indenture yet shall pass p. 136 Suspended yet grantable p. 154 Where it passeth by the name of a Mannor p 168 Reserved to be paid at two Feasts and not said by what portions the Lessee hath the liberty to pay it in what portions he pleaseth p 235 Repleader After Issue joyned where granted p. 90 Request Licet saepius requisitus good and where it must be special p. 73 206 S. SAle By an Enfant Executor of goods where binds him p. 144 Scire Facias Where it lyeth upon an Extent supposed to be satisfied p. 155 Where upon an Alienation of an Advowson without Licence by matter of Record not by matter of Fact p. 175 Statute Merchant and Staple Acknowledged when void by the death of the party p. 157 Surrender Of a Copyhold to uses p. 4 Cannot be of a Lease for years to begin at a day to come p. 95 Tenant for life remainder in Fee of a Copyhold he in the remainder may surrender in the life of the Tenant for life if there be no Custom to the contrary p. 259 T. TAil p. 87 Tender Of Rent how and where to be made p. 4 Tenancy In Common where must be pretended and not given in evidence p. 94 Traverse Where good where not p. 97 Trespass Quare clausum fregit not maintainable by him that hath but the Ear-grass after the first mowing p. 213 Tryal If Tythes lie in such a Parish or in such a Parish tryable at the Common Law p. 128 V. VAlue Of Lands what value shall be intended p. 114 Venire facias Where the place must be mentioned in it p. 171 172 Where from the place where from the Mannor p. 193 Upon every Original must contain the issue in it p. 269 Verdict Not good because too general p. 64 Not Good because it doth not extend to all the points of the Declaration p. 95 Given and found after a Supersedeas
Appendant or in gross A. 323. A Curtilage and Garden are Appurtenant to a House and pass by or without the word Appurtenant C. 214. Apportionment If the Lessor grant part of the Land the Grantee shall have no Rent A. 252. C. 1. Upon devise of Lands rendring Rent part being Capite Lands A. 310. If a Rent reserved upon a Lease of a Warren may be apportioned C. 1. None of a relief because intire C. 13. If a condition of Re-entry upon several Reddend may be apportioned C. 124 to 127. Rent may be apportioned in the Kings Case which cannot in the Case of a common person C. 124 to 127. Arbitrement Debt lieth upon it although void until it so appear A. 73 170. In such Action the Plaintiff needs shew no more than makes for him A. 73. To find sufficient Sureties to pay c. void A. 140. Without Deed cannot dispose of a Free-hold A. 228. To do one thing or another one being void yet the award is good A. 304 305. C. 62. To pay Mony to a Stranger is good A. 316. C. 62. That one Party shall have a Term for years gives the interest of the Term contra where it is that the one shall permit the other c. B. 104. Award to become bound it is a good performance if the Bond be delivered to a Stranger and after tendred to the Plaintiff B. 111 181. To do an Act to a Stranger who will not accept thereof the Bond is not forfeit C. 62. To do an Act to a Stranger not void C. 62. 212. Award that the Defendant and a Stranger become bound is good as to the Defendant though void in part C. 226. Ayd Copy-holder shall have Ayd of his Lord in Trespass A. 4. Grantee of Tenant in tail after possibility shall have Ayd yet the Grantor should not A. 291. Tenant at Will shall have it but not Tenant at Sufferance B. 47. Verdict upon an Issue upon a Counter-plea of Ayd is peremptory to the Defendant B. 52. Alien If the Kings Confirmation of a Feoffment to an Alien do avail A. 47. If the Grant of an Office to him by the King be a denization C. 243. Assent and Consent If the Conuzee of a Statute c. taken by Capias be discharged by Assent of the Conusee his Lands are also discharged A. 230 231. Assets Mony received by Executors for Lands devised to be sold to pay Portions if it be Assets A. 87 224 225. B. 119. What other things shall be Assets A. 225. B. 7. Lease for life and after his death to his Executors for 10 years if this Term be Assets C. 21 22. If Mony received by the Heir for Redemption of a Mortgage be Assets to pay Debts C. 32. Executors by Award receive 50 l. and release a Bond of 100 l. the whole 100 l. is Assets C. 53. Assignee If Assignee of parcel may have covenant against Lessee for years A. 251 252. Who is a sufficient Assignee A. 252. Executors or Administrators A. 316. Assize Of a Rent rendred in Fee by Fine A. 254. The manner of adjorning and giving Judgment where the Disseisor pleads Foreign Pleas B. 41. Of fresh-force in London C. 169 170. Attachment Of Goods in a Carriers hands 189. A Debt by Judgment Stat. Recogn c. cannot be attached A. 29 30. No Mony taken in Execution A. 264. What is a good Plea for him in whose hands Mony is attached A. 321. If the Plaintiff shall recover costs against him in whose hands c. A. 321. Mony for which an Action is depending cannot be attached C. 210. One cannot attach Mony for a Debt before the Debt be due C. 236. Corn is not attachable C. 236. A Debt upon Record cannot be attached C. 240. Attainder A person attainted cannot be charged with Actions A. 326 327. If a person attainted may be put to answer in personal Actions A. 330. What is forfeited to the King by Attainder of Tenant for life or in Tail in Remainder B. 122 123 to 126. Differences of Attainder and Conviction B. 161. If one attainted of Robbery shall answer in criminal Cases C. 220. Attaint What Heir shall have it A. 261. Upon the Statute of 23. H. 8. 3. A. 279. If it lie where the Plaintiff might avoid the Judgment by Error A. 278. Attornment To whom and how it must be made A. 58. Quoad part is good for all A. 129 130 234. Upon a Lease for years in Reversion A. 171. C. 17. An Abator may Attorn A. 234. The definition thereof A. 234. By the first Lessee binds the Tenant in remainder for years or life A. 265. Good by the Tenants of the Land to him in remainder after the death of Tenant for life A. 265 To the surviving Grantee of a Reversion good A. 265. To the Grantee of the Reversion of a Mannor by Lessee for year of the Mannor passes the Mannor and binds the Tenants A. 265. After condition broken is good to vest the Estate by the breach of the Condition A 265. The Relation of an Attornment A. 265. B 222. Who is compellable by a Quid Juris clamat to attorn A. 290 291 B. 40. C. 241 242. No Attornment is necessary upon selling a Reversion of Copyhold A. 297. C. 197. In what cases necessary A. 318. C. 103. Lease of Demesnes by Grant of the Mannor the Reversion passeth not without Attorment B. 221 222. An Advowson appendant to a Mannor shall vest without Attornment of the Tenants B. 222. What Words or Consent amount to an Attornment C. 17. Lessor levies a Fine to the use of himself and his Heirs Lessee must Attorn C. 103 104. If it be necessary where the Grantee is in by Statute of Uses C. 104. It is necessary to pass Services of a Mannor C. 193. Tenant of the Land must attorn upon granting over a Rent-charge C. 252. Reversion of a Term a Lease of part of the Term being first made cannot pass the Term and Rent reserved upon the first Lease without Attornment but a Term without Rent reserved he may C. 279. Lessor grants the Reversion to Lessee and A. B. no other Attornment necessary C. 279. Attorny J.S. Praesens hic in Cur. in propria persona sua per A.B. Attorn suum how construed A. 9. Lessee for years cannot surrender by Attorny A. 36. How to make a Deed by Attorny Ibid. B. 192 200. May essoign for a Copyholder but not do services A. 104. To three conjunctim divisim to deliver Seisin A. 192 193. How Attorny must make Livery where the Lands lie in several Counties A. 306 307. In an Indenture C. 16. Audita Querela Upon a Statute Merchant the Suit shall be in the Kings Bench But upon Statute-staple in the Chancery A. 140 141 228. contr 303 304. Process therein is either Venire facias or Scire facias A. 140 141. Upon a Statute Staple upon payment of the Mony in the Court of C. B. quod nota the party is bailed A.
Executor shall sell who dies his Executor cannot sell B. 69. To the Heirs of the Body of his Eldest Son is void B. 70. I give my Lease to my Wife for life and then to my Children unpreferred B. 90. To the Heir in see is void and he is in by descent B. 101. C. 18. That his Executor shall pay a Debt this is no Legacy B. 119 120. Devise shall be taken according to the Common not Legal construction B. 120. C. 18 19. Devise of three Closes to three and if any die that the other shall have all his part to be divided between them B. 129. That A. shall pay yearly 10 l. out of a Mannor is a good Devise of the Mannor to A. B. 165. They shall be construed favourably but not against Law B. 165. If the Devisor be distrained and dies before re-entry nothing passeth B. 165. All his Lands called Jacks in the occupation of J S. what passes if not in the occupation of J.S. B. 226. Like Case C. 18 19 132. Of a Mannor to B. and of a third part thereof to C. they are joynt Tenants C. 11. Words in a Devise shall never be judged repugnant if by any rational Construction they may consist C. 11 28 29 Devise of Lands to his Wife for life and after that she may give them to whom she will C. 71. Lands called H. in two Vills A. and B. Devise of H. in A. for life remainder of Hayes Land to L. No Land passes in remainder but Lands in A. C. 77. To J. for thirty one years to pay Debts remainder after the Term expired to his Heirs Males and if he die within the Term that G. shall have it and be Executor J. dies his Issue enters G. evicts him C. 110. Devise that the eldest Son shall take the profits until the younger be of Age and the remainder to the younger Son the elder hath see conditional C. 216. Devise that his Feoffees to Uses shall be seised to other Uses who are accounted Feoffees C. 262. Diminution The manner of alledging it A. 22. With what time it must be alledged B. 3. Disceit Fine reversed by such a Writ because the Land is Ancient Demesne A. 290. C. 3 12 117 120. Not abated by death of one Defendant C. 3. Upon a Recovery in a Quare Impedit A. 293. The manner of proceeding therein A. 294. For an Infant against his Guardian who lost the Land by default in Dower B. 59. Where Estate of the Conusee remains after the Fine reversed C. 12 120. Whom it shall bind without summons C. 120. Discent Takes not away the entry of him who claims by Devise condition broken c. A. 210. B. 192. cont B. 147. Disclaimer He who hath disclaimed shall not have a Writ of Error C. 176. Discontinuance de Process c. Vide Continuance Discontinuance de Terre Remainder in fee after a Lease for life where not discontinued by Fine by the Tenant for life A. 40. B. 18 19. None of Copyholds A. 95. Nor upon a Covenant to stand seised made by Tenant in tail A. 110 111. By Feoffment of Tenant in tail A. 127. B. 18 19. Quid operatur if the Feoffees joyn in the Discontinuance B. 18 19. Lease for years by Cestuy que use pur vy is no Discontinuance but warranted by the Stat. of 32 H. 8. B. 46. None if the Reversion be in the King B. 157. C. 57. Nor by Bargain and Sale by Deed enrolled without Livery C. 16. Disseisin and Disseisor Where a Man shall be a Disseisor at the election of another A. 121. B. 9. If Tenant per auter vy hold over after the death of Custuy que vie if he be a Disseisor B. 45 46. The like if Tenant for years holds over B. 45 46. If the younger Brother enter if he be a Disseisor or Tenant at sufferance B. 48. If Disseisee may give licence to put in Cattle before Entry C. 144. He who Disseiseth a Copyholder gains no Estate C. 221. Disseisin to the use of Baron and Feme he only agrees the Estate vests in both but the Feme is no Disseisor C. 272. Distress Cannot distrain upon the Kings Lands A. 191. Where and who may distrein the Cattle of a Stranger though not Levant and Couchant where and who not B. 7. If one as Bailiff may say he takes a Distress for one cause and carry it away for another B. 196. Dower The Wife not Dowable if the Husband be attaint of Treason although pardoned A. 3. Of what age the Feme must be A. 53. Inquiry of Damages where the Baron died seised A. 56 92. In such an Inquiry the Jury may find above the value of the Dower A. 56. By Custom of Gavel-kind whether demandable as by Common Law A. 62 133. How a Grand-Cape in D. must be executed A. 92. Wife Dowable of a Seisin in Fee defeasible by a Condition A. 168. The Wife shall be endowed at Common Law where the King is to have Primer Seisin A. 285. If a conditional Estate be a good Joynture to bar Dower A. 311. Bar that the Heir granted to the Wife a Rent in satisfaction c. he ought to shew what Estate he had in the Land B. 10. An Infant cannot lose by default in Dower unless per Gardian B. 59 189. Notwithstanding what divorces the Wife shall be endowed B. 169 170. If the Wife shall be endowed where the Husband takes a Fine and renders back presently C 11. If she be barred by Fine and Non-claim if she brings her Writ within five years and desists prosecution six years after C. 50. Touts temps prist a render Dower where necessary to plead it or to give Judgment by default C. 50 52. If the Wise of the Lord shall be endowed of Demeine Lands grantable and granted by Copy by the Lord B. 153. C. 59. Of a Presentation to a Church C. 155. It is a good Bar in Dower that the Feme accepted Homage from the Tenant C. 272. Pleading of agreement to a Joynture made during Coverture C. 272. Divorce If it be causa frigiditatis in the Man who hath Issue by another if the first Marriage be good or the Divorce good until avoided by Sentence B. 169 170 171 172. The several kinds of Divorce B. 169. In pleading of Divorce the Judges name Coram quo must be precisely pleaded B. 170 171. Droit The form of a Writ of Right and what is demandable therein A. 169. B. 36. Whether it lies of an Office Stat. W. 2 cap. 25. A. 169. B. 36. The manner of arrayment of the twelve Recognitors by four Knights A. 303. Droit of an Advowson where it lies A. 316. No challenge to the Polls after the Array made A. 303. Where a Man hath no remedy but by this Writ B. 62 63 65. A Writ of Droit Close directed to the Bailiff and procceeded coram Sectatoribus good C. 63 64. In such Writ twelve Recognitors retorned suffice in an Inferior Court
185. If a pain set in a Court-Baron may be mitigated by afferrors C. 8. The remedy for a Grantee of the King to recover a Post-Fine C. 56 234. Fine for alienation without Licence may be levied upon any Lands of the Vendor C. 241. Fine of Land. See more C. 74. Partes finis nihil habuer where Executors sell by vertue of a Devise that they shall sell A. 31. Not receiveable if made to two heredibus suis A. 62. A Fine levied of two parts of a Mannor sans dire in tres partes dividend good in a Fine but ill in a Writ A. 115. How to be pleaded upon the Statutes of 4 H. 7. 1 H. 3. 32 H. 8. A. 75 76 77 78. B. 36 37. Quod partes finis nihil habuer how and in what cases to be pleaded A. 78 83 185. B. 36 37. C. 37 119. Where it shall be reversed in part or in the whole A. 115. C. 120. Levied in Exeter City and reversed because it was de duobus Tenementis A. 188. Who shall be bound and how by a Fine and Non-claim after five years A. 212 213 214 259 260 261. B. 18 19 36 37. C. 10. What remainder and contingent Uses are barred by Fine A. 244. B. 18 19 36 37. C. 10. With render of a Rent in Fee and the Lands to the same persons for life how the Law construes this render A. 255. In pleading of it it is not necessary to say that the Conusor was seised A. 255. Dangerous to plead a Fine inter alia A. 255. By Baron and Feme Come ceo que il ad del done le Baron does not bar the Feme of Dower A. 285. Of Ancient Demesne Lands avoided by a Writ of Disceit A. 290. C. 220. For life without the word Heirs is not to be received for fear of occupancy B. 124. The force of a Fine without proclamation such Fine is not void but avoidable by Formedon B. 157. An Infant may declare the Uses and it binds B. 159. Where it must be pleaded and conclude Si actio and where by Estoppel B. 160. Forfeiture Baron and Feme makes a Feoffment of the Wives Joynture to one and his Heirs to the use of the Feoffee for the life of the Feme and adjudged a Forfeiture A. 125 126. Tenant for life forfeits his Estate by levying a Fine A. 40 212 214 262 264. If a remainder which is to vest upon a contingency may be forfeited before it vest A. 244 245. What distress or acceptance shall bar a Lessor to enter for a forfeiture for non-payment A. 262. If Bargain and Sale by Tenant for life be a forfeiture A. 246. It is no forfeiture B. 60 65. What Aid Prayers Vouchers Attornments and Pleadings by Tenant for life and years in real Actions is a forfeiture of his Estate B. 61 62 63 64 65 66. C. 169 170. If Tenant for life and the Reversioner joyn in a Fine and the Reversioner reverse the Fine for his Nonage yet he cannot enter for forfeiture B. 108. If Cestuy que vie die and the Tenant hold over if he be Tenant at Will Sufferance or a Disseisor C. 151 152. Form. Want of Traverse is but Form A. 44. Pleading to a Condition performance of Covenants generally is but form A. 311. Want of shewing a Deed is but Form B. 74. C. 193. Want of shewing a place is substance C. 200. What other matter is but Form C. 235. Formedon After the Tail spent the Plaintiff may suppose all to be dead without Issue A. 286. C. 103. Gavel-kind Land no Assets to bar a Formedon A. 315. In Reverter upon a Gift to the Heirs of the Body of Baron and Feme remainder to their Heirs B. 25. Upon a Gift in Tail remainder to Coparceners the Heir of the Survivor must bring a Formedon for that they claim as purchasers C. 14. Forrest Lex Forestae is but a private Law and must be pleaded B. 209 210. Fraud Fraud shall not be presumed but must be averred C. 255. G. Gardian GArdian in Soccage may grant the Ward though he cannot forfeit C. 190. Gardian in Soccage may enter for Condition broken and make Leases A. 322 323. The Court refused to appoint one for an Infant retorned Tenant in Dower unless in Court in person B 189. Gavel-kind Dower of such Lands is by custom a moiety quamdiu sola c. A. 133. Such Lands are not Assets to bar a Formedon A. 315. Grant. Of Estovers pro Easiamento A. B. heredum suor ' how construed A. 2. Lease at will 10 l. Rent The Lessor grants eundem reditum for life A. 151. Of the next avoidance does not give the then present avoidance A. 167. Of a Vicaridge does not pass the Presentation thereunto A. 191. If an Executor bona sua the Testators Goods pass A. 263. All my Goods and Chattels in such a Town a Lease of the Pawnage of a Park passes C. 19. All Wood upon such Land to be cut and carried away in 30 years does not grant any but what was then growing C. 29 30. A Grant cannot be but of a thing in esse C. 29 30. The force of the word Grant in a Lease C. 33. Grant of all Woods and Underwoods C. 59. Grant of a Rent-Charge to begin when J. S. dies without Issue who had Issue which died without Issue C. 103. All my now Goods and Chattels if the interest or possibility of a Term pass C. 153 to 158. Of the third avoidance c. the Wife is endowed of it the Grantee shall have the fourth C. 155. What interest of a Term or possibility may be granted C. 157 158. Of the Ear-grass of a Meadow C. 213. That the Grantee may take a Load of Hay yearly out of his Meadow the Grantee cannot take no Hay in one year and take two the next C. 226. What shall be sufficient certainty to describe what Lands are granted though part of the description be false A. 119. B. 226. C. 18 19 162 235. Grant of Common in all my Lands the Grantee shall have no Common in the Orchards Gardens c. C. 250. Divers good Cases where Grants of Tenant in Tail and he in Reversion or of Coparceners Joynt-Tenant and Tenant in Common shall be adjudged joynt or several Grants or the confirmation of one C. 254 255 256. Grant of the King and Patents Of a Mannor cum pertin Another Mannor which holds of it passes A. 26. Of an Acre in a great Field not specifying where is void Secus in the case of a common person A. 30. By his Grant Omnium bonorum catallorum Felonum what passes A. 99 201 202. B. 56. Shall be taken according to the true meaning A. 119 120. B. 80. Of a Chose en Action must be very strictly penned N. 271. C. 17 18 196 198. By the Statute of 31 H. 8. cap. 20. the King may grant Lands forfeited before Office B. 124. The force of a Non obstante in
Middlesex may inquire by inquest of Office of the Customs in London C. 127. Inrollments If a Lease enrolled be lost the Jur. is not of any effect A. 329. Where a Deed may operate both by the Statute of Inrollment and of Uses C. 16. What is a good Plea against a Deed enrolled A. 183 184 B. 121. How the time is accompted for the six Months A. 183 184. If it be enrolled non refert if it were acknowledged C. 84. How a Corporation must acknowledge a Deed C. 84. Intendment Where two several quantities of Acres shall not be intended all one A. 44. Where the intent of a Man is traversable ib. 50. Where issuable B. 215. Where and how the Law construes the Intent of one who enters in Land A. 127. Where mentioning a Rent of 8 l. and after saying 8 l. Rent is intended the same Rent without the word praedict ' A. 173. How far the Law takes matters by Intendment in Wills Deeds c. A. 204 210 211. St. Martins and St. Michaels day what Feasts by Intendment A. 241. Where want of an Averment is aided by Intendment A. 281. C. 42 43. Where Baron and Feme are vouched it is intended to be in right of the Feme A. 291. If a Service be reserved according to the value of the Land it is intended the then present value B. 117. C. 114. Seisin in Fee is intended to continue until the contrary appear C. 42 43 96. Intrusion Bar therein by Grant of the King A. 9. Into the Rectory and receiving the Tithes A. 48. Disceit is no Bar therein for nullum tempus occurrit Regi B. 31 32. The Information is prout patet per recorda If the Defendant plead a Title If he need to traverse nul tiel record B. 30 31. If every continuance is a new Intrusion where the first Entry was lawful B. 206 207. Joynt-Tenants and Tenants in Common One Joynt-Tenant of the next avoidance to a Church Ecclesia vacante releases to his Companion nihil operatur A. 167. Cannot sue one the other in Trespass for their Lands A. 174. C. 228 229. Where two shall be Joynt-Tenants or Tenants in Common of an Estate tail A. 213 214. Two Joynt-Tenants are disleised by two to one of whom one Joynt-Tenant releaseth the other enters he is Tenant in Common to the Relessee A. 264. One Joynt-Tenant cannot grant to or enfeoff his Companion A. 283. If a Joynt-Tenant and a Tenant in Common may joyn in debt for Rent and make a general Count where one is to have a greater share B. 112. Devise to two to be equally divided if it be an Estate in Common or a Joynt B. 129. C. 9. If one Joynt-Tenant accept a Lease of the Land from his Companion he is estopt to claim by Survivor B. 159. Pleading of Joynt-Tenancy in abatement by Fine or Deed Stat. 34 E. 1. 8. B. 161 162. Joynder en Action Action Plea. Three Tenants in a Praecipe cannot vouch severally A. 116. Two Defendants justifie severally and the Plaintiff says joyntly de injuriis suis propr ' c. and good A. 124. Tenant for life and he in remainder in tail joyn in prescription A. 177. Where two joynt-Joynt-Tenants or Tenants in Common shall joyn in one Formedon A. 213 214. In what real Actions who shall joyn or sever A. 293 294 317. In a Writ of Error the like A. 293 294. Who shall joyn in a Writ of Error or in Conspiracy or Attaint A. 317. Three joyn in Action upon the Statute of Hue-and-Cry and adjudged good Quod est mirum A. 12. Covenant to two quolibet eorum both must joyn B. 47. C. 161. If one is obliged to account to three he may do it to any one B. 75 76. Debt upon a Judgment against three cannot be brought against one only B. 220. Two Infants Joynt-Tenants cannot joyn in a Dum fuit infra aetatem C. 255. Ioynture What alienation of a Feme of her Joynture is within the Statute 11 H. 7. 20. A. 261 262. Iourneys Accompts If Error lies for the Heir upon death of his Ancestor by Journeys Accounts Quaere A. 22. Issues joyn One joynt replication de injuriis suis propriis to two justifications adjudged good A. 124. Is called in the Civil Law Lis contestata A. 278. If an Advowson be appendant or in gross A. 323. How it shall be joyned upon pleading Ancient Demesne A. 333. Upon special Bastardy A. 335. Issue in an Inferior Court triable out of their Jurisdiction not triable in the Courts at Westm B. 37. Mis-joyn for that the Plaintiff in Covenant altered a word from the Covenant B. 116. In Replevin upon absque hoc that he took them as Bailiff B. 215. Iudgment Upon the Defendant rendring himself in discharge of his Bail A. 58. The Defendant pleads a frivolous Plea which is found for the Plaintiff Judgment shall be entred as by Nihil dicit Nullo habito respectu c. A. 68. In a Sur cui in vita for part of the Messuage demanded A. 152. In Ejectment Quod quer recuperet possessionem is as good as Termin A. 175. Quod Capiatur well enough although pardoned by Act of Oblivion A. 167 300. Shall not be for the Plaintiff if by the Record it appears the Plaintiff hath no cause of Action or that the Action is brought before the Debt due A. 186 187. B. 99 100. C. 86 87. Entred as of a day past where the Defendant dies while after Verdict the Court takes time to consult of the Law A. 187. In what cases the Judges may give Judgment by sight of an Almanack A. 242. Judgment for the Plaintiff in Trespass although the Defendant died before the Writ of Inquiry returned A. 236. In Forcible Entry for treble Costs and Damages A. 282. Nihil de fine qui a pardonatur not good because the Defendant does not plead the Pardon A. 300 301. In Trespass or Case may be arrested after the first Judgment A. 309. Arrest of Judgment shewed in writing in the Exchequer B. 40. Judgment final upon a Verdict in a Counter-plea in Aid B. 52. Where it shall be reversed in part or in all B. 177 178. Against the Heir where his Plea is found against him is general against all Lands C. 3. Iurisdiction The Spiritual Court hath Jurisdiction where right of Tithes comes in question between two Parsons A. 59. In what Cases the Spiritual Court may have Jurisdiction for Slanders B. 53. If the Court hath not Jurisdiction of the Action all is void but other faults make the proceedings only voidable B. 89. One cannot plead to the Jurisdiction of the Court after Imparlance C. 214 215. Iour in Court dies Iuridicus What things may be done upon day extrajudicial B. 206 207. Iustices and Iudges Whether Justice of Peace in a Vill may be by Prescription A. 106. In what Inferior Courts who are Judges A. 217 228 242 316. B. 34. If a Judge may take
the acknowledgment of a Deed to himself A. 184. No Action or Indictment lies against one for an offence done as Judge A. 295 323 324. Upon a Justicies the Sheriff in person is Judge else all is coram non Judice B. 34. If Justices of Assise and Gaol-Delivery can take an Indictment of Trespass B. 117. A Justice of Peace cannot commit one for making a Contract against Law B. 210. What Indictment cannot be taken before Judges of Assise and Gaol-Delivery C. 216. Iusticies None but the Sheriff himself can hold Plea thereby B. 34. No Capias in Execution thereupon B. 86. Iustification By a Constable in false Imprisonment for that the Plaintiff would leave her Child to the Parish A. 327. By Prescription for a Way the Defendant must shew a quo ad quem locum certain the Way leads B. 10. By the Bailiffs of a Corporation to imprison any Subject at their pleasure for a misbehavior not good B. 34 35. If the Constable plead that he set one in the Stocks for not Watching he must aver that the party dwells in his Parish C. 208 209. K. King. See Prerogative WHat is given to the King by a Statute of Attainder which gives all rights c. A. 272. Not necessary to summon the King for matter in the Kings Bench for he is there always present A. 325. Quid operatur by assignment of a Debt to the King B. 31 55 67. C. 234. A Bond for performance of Covenants may be assigned to the King but no Execution before the party be warned B. 55. The Kings Widow cannot Marry without the Kings consent B. 141. If he may alter the Tenure notwithstanding the Stat. Quia emptores terrarum B. 151 163. C. 58. Takes nothing but by Record B. 206 207. No usurpation puts the King out of possession of an Advowson C. 17 18. What Debts may be assigned to the King B. 55. C. 234. L. Law. LEX Idumaea quid C. 264. Lex mercatoria is a publick Law and the Judges take notice so of it C. 264. Lex non praecipit inutilia If it appear the Plaintiff cannot have the thing demanded the Writ shall abate A. 330 331. Leases Power to make Leases by Stat. not pursued C. 72. Made be vertue of a power reserved to make Leases for 21 years shall not be to commence post â—xpirationem c. A. 35. Of Sheep and a Farm A. 42. What kind of property the Lessee hath in the Trees A. 49. Without Impeachment of Wast how construed Ibid. Excepting Woods Timber-Trees c. if the Soil it self is excepted A. 116 117 247. Where a Licence to occupy amounts to and shall be pleaded as a Lease A. 129. Covenant that the Covenantee shall enjoy c. is a good Lease Contra that a Stranger shall c. A. 136. For years may commence in futuro A. 171. Upon a Lease for years in remainder there must be Attornment Ibid. What words amount to a Lease A. 178. By Baron and Feme not good without Deed A. 204. For years if the Lessee so long live and if he die within the Term the remainder to J. S. The remainder is void A. 218. C. 154. Where an uncertain commencement may be ascertained by the entry or election of the Lessee A. 227. B. 1. Must have an end and beginning certain A. 245. C. 86. Lease for life cannot commence in futuro unless by way of remainder A. 275 276. None can take by it but those who are party to the Deed A. 287 288. What are void what only voidable A. 307. One Man exposuit ad culturam his Land to two the two have no Estate A. 315. To commence after a former if the former were void ab initio or since the first shall begin presently B. 11. What is a Lease for years or at will B. 78. By a several Habendum to commence after the expiration of several former Leases whether the new Lease begin till all the other be expired B. 106. Lease for so many years as J. S. shall name is good if he name in the life of both parties C. 86. Lease out of a Lease for so many years as shall be to come at the Lessors death Ibid. Lease of Lands by Lessee for years worth 8 l. per annum until the Lessee levy 100 l. what interest is left in the Lessee C. 157. Lease for 60 years and if the Lessee die within the Term that then his Executors shall have until the end of the Term C. 196 197. Leet Who is Judge there and what things are incident to a Leet A. 217 218. When to be holden by the Common Law and by the Statute B. 74. Legacy What is a good assent by an Executor to a Legacy A. 129 130. C. 6. Not payable without demand A. 17. Where and what election shall make one who is Executor and Legatee to be in by the Devise or as Executor A. 216. Payable to an Infant at his full age his Executor may sue for it before the time of his age A. 278. What Devise is a Legacy what not B. 119 120. Lieu and County Where Plea shall be ill after Verdict for want of alledging a place B. 22 76 77 146 147. C. 10. Where necessary in an Indictment B. 183. No place necessary where a Feoffment or Lease for life was made B. 31 32. Where the taking of the profits of Lands is alledged it must be said to be done at the Vill where the Lands lie N. 238. Limitation of Estates To A. and B. his Wife for years if they or any of their Child or Children live so long A. 74. What words make a Condition what a Limitation A. 167 168 244 245 298 299. B. 38 114. To the Feoffor for life and after his death to his Executors for 20 years in whom the Term is vested B. 5 6. C. 21 22. To A. for life and if A. die within 20 years to his Executors for so many years B. 6 7. C. 21 22. One having Issue a Son and a Daughter by several venters Devised to his Son and the Heirs of the Body of the Father how adjudged B. 24 25 26. Mannor of O. in S. use limited of all Lands in O yet the Mannor passeth not B. 47. The moiety of Lands to his Wife for years and his eldest Daughter to enter into the other moiety and the Daughter married and died without Issue having another Sister C. 25 26. To J.S. and his Issue imposterum procreand the present Issue take nothing C. 87. Lands given to A. for the Life of C. and B. the death of either determines the Estate C. 103. Grant to two habend moiety to one and moiety to the other good But grant of two Acres habend to two habend one to one and the other to the other is void C. 126. Limitation of Time. If a Corporation must alledge Seisin within the time limited by the Statute in real Actions A. 153. Livery of Seisin Made before enrolment
lies immediately upon a Recognizance in Chancery B. 84 to 89 220. If Debt lies upon it before or after Judgment upon the Scire facias B. 84 to 88 220. Debt brought upon a Recognizance but non constat where it was acknowledged C. 58. Record Of an Assise brought into the Common Bench by Error how to be remanded to the Judges of Assise for Error lies not in C. B. A. 55. Pleading of a Record in the same Court A. 63 65. Where and for whom Averment lieth against a Record A. 183 184. Removed by a vicious Writ of Error or before Judgment given the Record is still in the first Court B. 1 2. A Recordatur made per Car. of a Record mistaken B. 120. Recovery The form thereof where the Vouchee comes in by Attorny A. 86. Against an Infant per Gardianum A. 211. A Recovery by one Joynt-Tenant binds only his own moiety A. 270. The execution thereof necessary in some cases B. 48. By Estoppel B. 57. Recoveror is seised to the use of him who suffers it until other Uses are limited B. 63 64 66. See Stat. 21 H. 8. who may falsify a Recovery For what reasons Recoveries do dock remainders after an Estate tall B. 66. Recovery to the intent that the Recoverors shall make Estates if such Estates be not made in convenient time in whom the Freehold is B. 216 217 218. What issue is bound thereby per Stat. 32 H. 8. B. 224. Recouper If the Lessor covenant to repair the House and do not Lessee may do it and recouper out of his Rent A. 237. Recusant If Copyhold Lands were liable to seisure for Recusancy before the Stat. 35 Eliz. 2. A. 98 99. Within what time Action upon the Stat. 23 El. 1. must be brought A. 239. The Indictment needs not name the offender of a Parish but a Vill B. 167. Redisseisin Whether the Plaintiff may have it after Entry the Judgment therein A. 69. Relation Of a Participle of the present Tense without the word adtunc A. 61 172. Of an Attornment A. 265 266. B. 222. Of words in an Indictment B. 5. Of a Deed enrolled to vest Lands in the King B. 206 207. Of agreement to a Disseisin Feoffment c. B. 223. Release Where a Covenant in the same Deed shall release other part of the same Deed A. 117. C. 113. Of a chose en action nihil operatur A. 167. C. 256. If an Heir release to the Disseisor and after his Ancestor dies it does not bind the Heir B. 47 56 57. A promise may be released by Parol B. 76. See where a release to a Stranger may discharge a Bond C. 45. Release of Covenants before any broken discharges the Bond for performance C. 69. To what Tenant in possession it is available C. 152 153. One Grantee of a prochein avoidance cannot release to his Companion A. 167. C. 256. Relief The Heir of one Coparcener shall pay none because it is an intire thing C. 13. Remainder and Reversion In Fee after a Lease for life where not discontinued by a Fine levied by Tenant for life A. 40. Cannot vest in the right Heirs of one in the Feoffors life unless it begin first in the Feoffor A. 101 102. Where an Estate shall vest as a remainder where as a reversion A. 182. B. 33 34. A Reversion after an Estate for life passeth by Devise of all Lands and Tenements A. 180 181. When a Remainder limited upon an Estate which is void as a Gift to a Monk for life remainder over shall take effect A. 195 196 197. Lease for nine years determinable upon death of the Lessee and if he die within the Term the remainder of the Term to his Wife a void remainder A. 218. The difference between a remainder limited upon a contingency which may never happen and one that must and will happen A. 244. B. 82 83. Devise to J.S. haered to Uses in tail after the Estate tail spent The Devisor shall have the fee A. 254. If one of two Disseisees release to one of two Disseisors and the Tenant who released not do enter the Reversion is revested pro toto A. 264. If a remainder may be limited upon a Condition A. 283. Feoffment to J.S. primogenito filio suo If the Son be born after the Feoffment he shall take by remainder B 15. If the remainder of a Term for years be good B. 69. C. 110 111 197 199. Remainder executed by moieties upon a Gift to a Feme for life remainder to their Heirs C. 4. Grantee of a Reversion shall recover Damages only for breach of Covenant made since the Grant C. 51. What acts as Extents Grants c. do take a Reversion forth of him that had it C. 156. Remitter Where it shall be A. 6 7 37. C. 93 94. Tenant in tail creates a new intail upon condition which his issue breaks yet he is remitted after his Fathers death A. 91. Land given to Husband and Wife in tail before Marriage and the Baron aliens and takes back an Estate to him and his Wife for life both are remitted A. 115. C. 93 94. The Father enfeoffs the Heir who never agrees and dies the Heir is remitted B. 73. Father enfeoffs his younger Son who dies his Wife priviment enseint of a Son the elder Son enters he is remitted Quaere C. 2. If one may be remitted against a Warranty C. 10. Waived by the Wife who was Tenant in tail with her Husband her payment of Rent which was reserved upon a Devise C. 272. Rent What is a Rent what a sum in gross A. 137 138 269 333 334. C. 103. Rent reserved by a Lease for years becomes seck if it be granted over A. 315. Divers ways of suspending Rents and how they are revived 334. To what remainder or reversion it shall be incident B. 33 34. If a Rent may be divided to equal a devise of Soccage and Capite Lands B. 42 43. Shall follow the Reversion although reserved to Executors B. 214. Contrary to a sum reserved to Executors upon a Mortgage of Land C. 103. Rent payable at two Feasts is to be paid by equal portions C. 235. By destroying a Reversion a Rent which followed it is extinguished C. 261. Repleader None after Demurrer A. 79. After an unapt issue A. 90. Replevin and Avowry Avowry for Rent reserved upon a Feoffment in fee and for sult of Court A. 13. Bar by non Cepit and what is good evidence therein A. 42. By property in a Stranger Ibid. Where the Plaintiff or Avowant may vary from the number of the Cattle A. 43. Plaintiff cannot discontinue without leave of the Court A. 105. Avowry for Damage Feasant in Customary Lands leased to the Avowant A. 288. Avowry by the Stat. 21 H. 8. cap. 19. A. 301. Avowry for a Leet Fee B. 74. Bar to an Avowry made by a Bailiff that he took the Cattle de injuria c. and traverse that he took them as Baily B. 215.
For an amerciament for not appearing at a Leet C. 14. If the Plaintiff be nonsuit the Court may assess Damages without a Writ of Inquiry if the Avowry be for Rent C. 213. Reputation The signification of the word in Grants reputat fore parcel A. 15. Request When needful C. 73. In Assumpsit where it must be special A. 118 123 221 287. B. 22 215. C. 73 200 201. The like in Covenant A. 124 125 169. Promise to pay Mony at a certain day No request necessary A. 221. Is traversable in Covenant where the Covenant is to be performed upon Request B. 5. Want thereof where necessary not aided by Verdict B. 117. If a Joynt Request be good of several distinct Contracts C. 206. Resceit The Wife shall not be received if her right be not bound A. 86. Cont. B. 9. One in remainder received although he might falsifie the recovery A. 86. If Tenant for life do not pray to be received he in remainder may do it A. 262. By Executors where the Term was limited to the Testator for life remainder to his Executors for years B. 6. Stat. W. 2. c. 3. 13 R. 2. of Resceit B. 62. Stat. Glouc. of Resceit of Tenant for years B. 65. C. 169. In what cases the Tenant by Receit shall have day to plead or plead presently C. 168 169. Upon Resceit of one for a moiety the Plaintiff shall not have Judgment for a moiety C. 169. Where a Termor prays to be received if he must aver the Writ to be brought against the Tenant by fraud C. 168 169. Restitution Utlary in Felony against the Testator reversed by Error by the Executor and restitution de bonis A. 326. Upon a Forcible Entry he in Reversion shall be restored and then Lessee may enter A. 327. Goods sold by Fieri facias not to be restored if the Judgment be reversed B. 90. Of Goods stolen upon an Utlary in Appeal of Robbery B. 108. Retorn of Sheriffs Upon a Capias pro fine ret Cepi Corpus and upon the Cap. ad satisf ret non est invent and fined for contradictory A. 51. Upon a Writ of Hab. Corp. amended A. 145. Where an Averment shall be against it and for whom where not A. 183 184. Upon Elegit that there was a former Writ executed in the same case if good B. 12 13. What is a good retorn in a Writ of Replevin or retorno habendo B. 67. Upon a Fieri facias against Executors after Verdict upon plene administr the Sheriff cannot retorn nulla bona B. 67. Cont. C. 2. Cannot retorn tarde as to part B. 175. Retraxit Cannot be before a Declaration so as to make a perpetual Bar C. 19. S. Saver de default SIckness is no cause as the fall of a Flood or Imprisonment are C. 2. Scire Facias For the King against his Tenant in Capite for alienation without Licence A. 8. For the King against the Ter-Tenant of one Attainted A. 21. In London ad discutiendâ—m debitum A. 52. For the King to gain a Presentation for that the Patron is utlawed A. 63. For the Tenant by Elegit who was ousted by the King for a Debt against the Defendant to shew cause why the Plaintiff should not have the Land the King being satisfied A. 272. Upon reversal of a Fine or Recovery no restitution before a Scire facias against the Ter-Tenant A. 290. For the King against a Debtor in what case necessary B. 55 56. In what case it may issue out of another Court than where the Record is B. 67. Bail not chargeable by any Custom without a Scire facias B. 30 87. Payment no good Plea unless pleaded by Record B. 213. If an Execution were continued no Scire facias is necessary B. 77 78 87. C. 259. Sea. The Queens Interest therein extends to the midst thereof betwixt England and Spain C. 71. Seal The Kings Privy Seal and the force thereof A. 9. Second Deliverance After Withernam B. 174. C. 235 236. None after Verdict but after Nonsuit at the Nisi Prius it lies C. 49. Seisin What is a sufficient Seisin of Services A. 266. What Actions an Heir may have upon a Seisin in Law without entry A. 273. Servant What is a discharge of one retained pro consilio c. for life or otherwise A. 209. If an Action lies for retaining the Plaintiffs hired Servant A. 240. Services Vide Mannor Severance Lieth in Partition A. 55. And in a Writ of Error where A. 317. In case in the Kings Bench of an Executor B. 112. Sheriff His power in executing a Grand Cap. in Dower A. 92. May make a special Warrant and take an engagement to secure himself for Escapes A. 132. May execute a Fieri facias after the Defendants death A. 144. Where he justifies by an Execution he must plead that he retorned the Writ Secus of a Bailiff A. 144. Caveat how he discharge a Prisoner in a Court unless the cause be legal A. 145. Examined upon Oath about a retorn of an Extent B. 12 13. Must hold Plea in person upon a Justicies not the Under-Sheriff B. 34. Must execute Process without questioning the legality of them B. 84 85 93. Action against the Under-Sheriff for proceeding in an Hundred Court after an Habeas Corpus C. 99. Slander Did procure suborn and bring in false Witnesses adjudged actionable A. 101. Forsworn in the Court of Request adjudged actionable A. 127 128. Taken a false Oath in a Court Christian adjudged actionable A. 131 132. Thou art not the Queens Friend A. 336. Words spoken of a Peer or Bishop may bear Action though they will not if spoken of a common Subject A. 336. Corrupt Man spoken of a Judge or Attorny Ibid. Bankrupt will not bear Action unless the Plaintiff be a Tradesman Ibid. J. S. executes false Warrants spoken of a Bailiff Ibid. Liveth by Witchcraft and Sorcery B. 30. For calling one Witch B. 53. If it lies for calling one a Forsworn Man if no legal Oath was given B. 98. Of Title lies though the words were not spoken to any who was buying the Land B. 112. I will prove F. to be perjured actionable C. 151. You live by swearing and forswearing not actionable C. 163. Cousened me of 40 s. not actionable C. 171. Of Title what lies C. 177. Thou hast forged my Hand Thou art a Forger Thou didst forge a writing not actionable C. 231. He went about to kill me actionable Ibid. He forged my Lord of L's Hand to a Letter against the Bishop of L. for which he was committed not actionable Ibid. Statute-Staple Merchant c. If the Conusors Body be taken and let at large by the assent of the Conusee the Land is thereby discharged A. 230 231. If the Conusor sow the Land the Conusee shall reap B. 54. If Debt lies thereupon B. 112. The Body of a Lord is liable to Execution B. 173 174. Statutes Magna Charta cap. 35. When Leets are to be holden
Bar for no person is named there Manwood If a Lease be made made to J.S. except Green-Close to J.D. who is a stranger the Exception is good and J.D. shall have it The Principal Case was Adjourned LXI The Lord Windsors Case Mich. 15 Eliz. In the Kings Bench. UPon an Evidence given to a Iury in the Kings Bench in an Ejectione Firmae the Case appeared to be thus That Sir Roger Lewknor Knight being seised in Fee of the Mannor of South Myms made an Indenture Anno 11. H. 8. by which Indenture he Leased the said Mannor to 20 persons to the use of Andrew Windsor afterwards Lord Windsor and Henry his Son and the Survivor of them as long as any of the said persons named in the said Indenture should live And further Covenanted by the same Indenture To stand seised of the said Mannor To the use of the said Andrew and Henry and the Survivor of them during the lives of any of the said Feoffees named in the same Indenture which Deed was made without Livery and Seisin and reserved upon it an yearly Rent and afterwards the Son died And in 22 H. 8. A Fine was levied by a stranger upon a Release to Andrew Lord Windsor And afterwards 34 of Henry 8 Andrew Lord Windsor made a Lease to one for years and died and made William and Edmond his Sons his Executors And afterwards William his eldest Son being Lord Windsor 2 3 Phil. Mary made a Lease of the same Land unto another to begin after the first Lease ended Which William died and the Lord Windsor that now is accepted the Rent and of late time agreed with one Vaughan who had married the Heir of Sir Roger Lewknor for the Reversion in Fee and afterwards the Lease made by Andrew Lord Windsor 34 H. 8. ended in the 4th year of the Reign of the Queen that now is Whereupon the second Lessee that is to say the Lessee of William Lord Windsor entred and being ousted he brought the Ejectione firmae And then and yet one of the 20 Feoffees of Sir Roger Lewknor is alive so as the Estate of Cestuy que Vie is not as yet determined And now the Question upon the first part of the Evidence is If this later Lease made by William Lord Windsor be a good Lease or not And who shall be said Occupant For when the Lord Andrew died then the Lessee as Catline said shall not be said in otherwise than according to his Lease when his occupation by Lease was lawful before And he who shall be said Occupant shall have a Freehold and if he should be Occupant he should be in by a new title Then we are to see If the Executors of the Lord which have the Rent and to whom the same is paid by the Lessee shall be said Occupant And he conceived That they should not although that they enter unless they claim the Freehold at the time of their entry for if they enter generally it shall be intended according to the Will as Executors and if he had granted his Estate to another there after his death the Grantee shall be said to be in by reason of his Grant and not as Occupant And so if he would devise his Estate the Devisee shall be in by reason of the Devise and not as Occupant Which Case of Devise Southcote denyed That he should not be in by reason of the Devise when his Estate determines with his death But if the Devisee entreth by force of the Devise he shall be in as an Occupant And also Southcote denyed that which had been said That the Lessee for years who holdeth the Lands after the death of Andrew Lord Windsor should not be an Occupant For as he said the Lessee being in possession after the death of the Lord Andrew should be said Occupant and no other for the Executors of the Lord could not be Occupant by the having of the Rent because they had not the possession of the Land for none shall be Occupant but he who is in possession Whiddon said That if the first Lease made by Andrew Lord Windsor was now in esse and that an Ejectione Firmae was brought upon that that the Lessee ought to aver That some of the Feoffees for whose lives c. were then living Southcote If a Praecipe quod reddat shall be brought against whom shall it be brought against him in the Reversion or against him in possession And if it shall be brought against the Tenant in possession then he ought to have the Freehold for it cannot be brought but against one who hath a Freehold at the least And then if the Lord William Windsor had nothing in the Land then how could he make this Lease to the Plaintiff that now is when the first Lessee continueth Occupant after the death of the Lord Andrew during the life of Cestuy que Vye And as to the Fine the Question did further arise If the Lord Andrew Windsor should have a Feesimple by that Fine For being levied as Catline said It cannot be to the first Vses because a Fine upon a Release cannot be intended to the use of any other but to him to whom it is levied unless an use be expressed in the Fine or by another Deed And upon a Fine levied upon a Release made unto Tenant life by a stranger the same is not a forfeiture of his Estate But if Tenant for life taketh a Fine Sur Conusans de droit come ceo c. the same is a forfeiture And although a Fine levied by those who have not any thing in the Lands be void Yet here it is not so and it ought to be pleaded specially and shewed that he had not anything in the Land at the time the Fine was levied as Anderson said And Catline said That this Fine was not without good advice for the Lord Brook and others who were learned in the Law were of Counsel with the Lord Windsor in the levying of this Fine so as the intent was to settle the Feesimple in himself by the Fine and not that the first Vses should stand after that And thereupon he put the Case of Putnam and Duncomb which hath much Resemblance to this Case which he argued when he was Serjeant and held the same Opinion as he holdeth now And therefore he said That although the Purchase was but of late time of Vaughan and his Wife yet the Fee was in the Lord Windsor before and this manner of purchase was to no other end but to discharge the Lands of Incumbrances as appeareth by the small sum which was paid the Land being of a great yearly value And as Vaughan confessed he took this sum of Mony because that his Council informed him that the Feesimple was in the Lord Windsor before and that otherwise he would not have sold it at such a price And he said That before that agreement the Lord Windsor told him that he had the Feesimple in himself
Whereupon Vaughan asked him Wherefore he paid the Rent To whom the Lord Windsor answered That he paid the same during the lives of the Feoffees but after their deaths he paid nothing but notwithstanding that payment that the Feesimple remained in him and that his Counsel advised him to pay the Rent to the Heirs of Lewknor who was the Wife of the said Vaughan And Catline said That if a Fine be levied upon a Release in a Scire facias against the Conusor he shall not plead that the Conusor had not any thing in the Land at time of the Fine levied And he said further That if a Disseisor be and the Disseisee levieth a Fine upon a Release that thereby his Right is gone And Note That as to the principal Case Southcote was of Opinion That the Fee was not gained by the Fine levied by a stranger to him who had the Vse before the Statute of 27 H. 8. and that if no Feesimple was in the Lord Windsor at the time of the Lease made by him that the Lease could not be good nor the Action maintainable And because the Court was divided in Opinions in both Points Catline commanded the Iury to find a Special Verdict LXII Mich. Eliz. In the Kings Bench. NOte That it was said by the whole Court That if a Man delivereth Mony to another Man to buy Cattel or to Merchandise with although that the Mony be sealed up in a Bag yet the property of the Mony is to the Bailee and the Bailor cannot have an Action for the Mony but only an Accompt against the Bailee although that he never buyeth the Cattel or other things for the Auditors upon the Accompt shall allow him the sum and such other allowances as they shall think fit And that a stranger takes away the Mony after the death of the Bailee or in his life-time the Bailor shall not have an Action against the stranger but the Executors of the Bailee or the Bailee himself during his life And yet if the Bailee dieth no Action of Accompt lieth against his Executors because the Testator had the property of the Monies And therefore if he who takes the Mony from the Bailee promiseth the Bailor to pay him the like sum of Mony as the Bailee had received of him in his life and as should be truly proved by the Bailor there upon that Promise an Action upon the Case doth not lie against him who took away the Mony as Catline said In an Action upon the Case brought by the Master of the Rolls and another who supposed that they delivered 100 l. to one Moore and that he is dead and that the Mony came unto the hands of the Defendant and that thereupon he promised to pay the like sum which might be proved that Moore had of the Plaintiffs It was holden That the Action upon the Case did not lie Southcote Iustice said That although the property of the Mony be changed as before and that no Accompt lieth against a stranger Yet when he hath the Mony and for that cause promiseth to pay it as before it is reason that an Action upon the Case should lie upon his promise although the Law will not charge him nor the Executors upon an Accompt LXIII The Lord Cromwells Case Mich. 15 Eliz. Dyer 321 322. 2 Roll. 560 561. JEffery recited That a Replevin was brought by Franklin The Defendants made Conusans as Bailiffs of the Lord Cromwell because that the said Lord was seised of the Mannor of North-Elmes and that the Custom of the said Mannor is That the Homagers have used to make By-Laws when necessity shall be within the same Mannor and upon a pain and forfeiture and that the Lord of the Mannor for the time being might distrain in the Land of any for the Forfeiture And further saith That in Anno 6 of Ed. the 6th the Homage then whereof Franklin the Plaintiff was one made By-Law That none should put his Sheep to feed in the Pasture or Lands of the Lord upon a pain c. And that the said Franklin in the 13th year of the Reign of the Lady the Queen that now is had put his Sheep into the Pasture and Lands of the Lord to feed and for that they avow the taking in the right of the Lord Cromwell for not payment of the said Forfeiture And Jefferies of Council with the Plaintiff said That the Avowry nor the Conusans were not good For the Custom is as they themselves have shewed That the By-Law shall be made when necessity requireth and without necessity a By-Law cannot be And it is not alledged here That there was a necessity at the time of this By-Law made and then if there be no necessity they cannot make the By-Law Also it is not alledged that there were any Sheep there And when a Custom is pleaded it shall be pleaded stricti juris And at the Common Law you may see divers Cases That when a Man is to have one thing for the cause of another that he must alledge the thing for which he must have it As in 9 H. 6. Where an Abbot had granted to one That he should have Common wheresoever the Cattel of the Abbot should go there if the Commoner will justifie or make Avowry for his Common he must aver that the Beasts of the Abbot went then in such a place Field or Pasture for if they did not go there at the time that he justifieth or avoweth his Iustification or Avowry shall not be good And there it was said by Babbington Chief Iustice That if a Man grants Common whensoever his Cattel shall go in such a Pasture If the Grantor doth never put his Cattel into the Pasture the Grantee shall not have Common there and therefore he must say That he put his Beasts into the Pasture And in 15 H. 7. in the Case of an Annuity granted until he be promoted to a Benefice in a Writ of Annuity brought he must say That he is not promoted c. And if an Obligation be made to you to you my Lord for Mony when J.S. shall return from Rome you shall not have an Action upon the Bond for not payment of the Mony without alledging that J.S. is retorned See 33 H. 6. Hillary 's Case And before the Statute of Quia Emptores terrarum If a Man had made a Feoffment to hold by Fealty and the Guarding of his Castle In an Avowry for the Castle Guard that there was then War and so cause of necessity for in time of Peace he shall not be bound to Guard it And so it appeareth 34 H. 8. Where a Feoffment was made before the Statute to hold by Fealty and every year to marry a poor Maiden within the Mannor if he doth avow for not marriage he ought to alledge that there was a poor Maid that year within the Mannor So if the Tenure be to repair a Bridge that is for the Common wealth and he and all others
are to have advantage of it yet the Lord shall not avow for not repairing of it without alledging that the Bridge was in decay And so when the Tenure is to Cover his Hall he shall not Avow without alledging that his Hall needed Reparations And so in the principal Case here he ought to alledge that there was a present necessity for making of the By-Law for it may be that there was not any Sheep within the Mannor when the By-Law was made and then there was no cause that it should be made And in the like manner as it hath been said of the Common Law That certainty ought to be shewed so shall it be by the Statute Laws As if Tenant for life makes default if one prayeth to be received for the default of the Tenant for life he ought to shew that he hath the Reversion and that he bringeth his Action by reason thereof And as it hath been said of the Common Law and Statute Law so it shall be said of Custom As in 44 E. 3 where the Parishioners prescribe to make By-Laws and that they made such an Ordinance That for every Acre of Land or for every Beast every one should pay for the Reparations of the Church c. there it may be said in Avowry that the Church wanted Reparation And so where a Tax and Levy is to make a Wall against the See there if the party will justifie the levying of the Tax or Levy he must say That there was need of it otherwise the same cannot be levied But as to the ability of a person he shall be enabled by Intendment As if an Obligation be made by a Man or a Woman in an Action brought upon the Bond he shall not be compelled to say That the Man was of full age or that the Woman was a single Woman for that shall be intended until the contrary be shewed But by Statute Law if a Man pleads a Grant it shall be otherwise As upon the Statute of 1 R. 3. If he plead a Feoffment or a Grant of Cestuy que Use he must plead That he was of full age out of prison of sound memory and within the 4 Seas And so where a Pardon was made in the time of King Ed. the 14th to all but to those who were with Queen Margaret there if he will take advantage of the Pardon he must plead That he was not with the said Queen And if a Man plead a Feoffment of J.S. at the Common Law it shall be good and if he were within age it shall be shewed on the other side But if a Man pleadeth a Feoffment by Custom and the other saith that the Feoffor was within age and the Plaintiff replyeth That an Enfant by the Custom may make a Feoffment the same is not good but a Departure for he ought to have shewed that at the beginning in his Declaration And in 37 H. 6. Where a Man pleaded a Devise and it was shewed that the Devisor was within age there the Plaintiff need not say that the Custom is That an Enfant may devise for that is a Departure Another matter of the Custom which they have alledged is That they may make By-Laws for the better Ordering and they have not taken averment that this Ordinance was either better or worse and if it be not better then they have no cause to make the By-Law If a Feoffment be made causa Matrimonii praeloquuti it shall not be intended that the Feoffment was for any other cause than Marriage And if a Woman brings a Writ of Dower and the Defendant pleads a Lease for life made by the Husband it shall not be intended that that Lease was in allowance of her Dower according to the Statute if it be not expresly shewed And so If Cestuy que Use in tail makes a Lease for life it shall not be intended that Cestuy que Vie is alive unless a special Averment be taken That he is yet alive And so here it doth not appear that this is the better Order nor that the Lands are several or lie in Common so as by no means or Circumstance it can appear if it be the better or not Another cause wherefore the pleading is not sufficient is Because he saith Vpon a pain of Forfeiture to the Lord for the time being and he hath not alledged in fact that the Lord Cromwell who was Lord of the Mannor in Anno 6 E. 6. was Lord in the 13th year of the Reign of the Queen that now is and without shewing that shall not be intended As in 7 H. 7. A Man pleads a Feoffment and that J.S. was seised and did enfeoffe him that is not good but he ought to plead that he being so seised made the Feoffment for it shall not be intended that his seisin continued until the time of the Feoffment without shewing of it And so where a Man pleads That J.S. was seised of a Reversion granted it he ought to plead And that he being so seised granted it And so where an Attornment is pleaded for if he was not seised at the time of the Attornment the Attornment was not good And so where a Man will plead a Surrender he shall shew that he who Surrendreth and he to whom a Surrender is made were seised Quaere If the one or the other were not seised one of the Term and the other of the Reversion whether the Surrender be not good And 31 H. 6. If a Man will plead a Lease by Feoffees to use he shall say And that so seised they made the Lease And see 6 7 10 11 H. 7. Where Cestuy que Use makes a Feoffment averment shall be taken that at the time of the Lease that the Feoffees were seised to the use of the Lessor And because that here it is not shewed nor alledged that the Lord Cromwell is now Lord of the Mannor it shall not be so intended Also for divers other causes I conceive that the Avowry is insufficient For he hath shewed that a By-Law was made but doth not shew when it was made nor for what time it was to continue And it is not shewed Whether the same were made for the better ordering of the Lands which the Lord held joyntly or in common with others or which he held in his own Right alone And as to the Prescription I conceive that the same is not good because it is against reason and not ex rationabili causa For if one Man keeps the Law and another Man breaks the Law yet according as they have alledged this Custom to be he may be distrained who hath not offended and his Cattel taken for the Offence done by the Cattel of another Man and it is against reason that any one should be punished for the default or offence of another But the Custom of Borough English is good and so is the Custom of Gavelkind because that every Son is as good a Gentleman as the eldest and therefore those
shall be taken in Iudgment of Law That the Executors have Assets to the value of the whole 100 l. And although the Executors were compelled by the Award to make the release yet it was their own act to submit themselves to the Arbitrament LXXVIII Mich. 15 Eliz. In the Court of Wards NOte It was Ruled by Kellaway and Wilbraham in the Court of Wards That where the Kings Tenant of Lands holden by Knight service in Capite made a Feoffment of the same Land to the use of himself for life and after to the use of his younger Son in tail the remainder to the right Heirs of the Feoffor and died the eldest Son within age That the Queen should have the Wardship of his body and of the third part of the Land and when the eldest cometh at full age the younger shall sue Livery and pay Primer Seisin according to the rate of the value of the whole Land viz. of the third part as in possession and of the two parts as a Reversion For the remainder to the right Heirs of the Feoffor is in truth a Reversion For the Feesimple was never out of him because there was not any Consideration as to that nor any use expressed And also because that Livery shall not be by parcels the younger Son shall not be suffered to sue Livery of the third part presently and respite the residue as to the two parts in Reversion until the Reversion fall but shall sue Livery presently as well of the two parts in reversion as of the third part in possession And if the eldest Son had been of full age at the time of the death of his Father the younger Son should pay Primer Seisin as to the third part of the full value of it for one year as in possession and as to the two other parts the moyety of the value of a year as a Reversion And at that time Breers Case was vouched which was Oliver Breers Tenant in Chief by Knights Service made a Feoffment in Fee to the use of himself for life and after to the use of A. his Son and Heir for life and after to the use of the first begotten Son of A. in tail and after to the use of the second Son of A. c. and for default of such Issue to the right Heirs of the Feoffor Oliver died the said A. his Son being of full age It was ruled by the said Council of the said Court of Wards That he should pay for his Primer Seisin a third part of the Land in possession and two parts as a Reversion LXXIX Mich. 15 Eliz. In the Common Pleas. Post 56. THe Case was A Man was seised of a Pasture in which was two great Groves and a Wood known by the name of a Wood And also in the same Pasture were certain Hedge-Rowes and Trees there growing Sparsim Leased the same by Indenture for years And by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses And further That it should and might be lawful to the Lessee to cut down and carry away the same at all times during the Term. Harper Iustice The Hedge-Rowes did not pass by these words Hedge-Rowes sparsim Dyer The Hedge-Rowes shall pass for the Grant is general All Woods Mounson contrary For the words of the Grant may be supplyed by other words It was moved further If by these words the Lessee may cut them oftner than once And by Harper Manwood and Mounson He can cut them but once Dyer contrary And so it should be if the words had been Growing upon the Premisses And this word Growing although it sounds in the present Tense yet it shall be also taken in the future Tense if the word tunc had not been alledged for it is a word of restraint The Case which was argued in the Chancery 27 H. 8. where I was present was such The Prior of St. John of Jerusalem Leased a Commandry Provided That if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void It was doubted If that did extend to the Successors for the word Being is in the present Tense And yet it was holden by Fitzherbert That it should be taken in the future Tense and so extend to the Successors Otherwise if the words had been Nunc Being LXXX Mich. 15 Eliz. In the Common Pleas. A Man seised of Lands in Fee devised 1 Len. 101. That his Wife should take the profits of his Lands until Mary his Daughter and Heir came to the age of 16 years And if the said Mary died That J.S. should be her Heir Manwood The Daughter after she hath attained the age of 16 years shall have the Land in tail For Devises ought to be construed according to the intent of the Devisor so far forth as any certainty with reason may be collected but no intent shall be taken against all reason and certainty It is certain That the Daughter shall not have the Land in Fee for that shall descend to her without any Devise And these words If she dieth cannot be intended a Condition for it is certain she shall die But if the words had been That after the death of Mary J.S. should be his Heir in such case Mary had had but an Estate for life for there it is limited what Estate she should have And when it is said J.S. shall be his Heir it shall be meant his Collateral Heir so as the Estate tail remains in the Daughter Mounson and Harper to the contrary and that she shall have but for life And by Mounson If Mary had been a stranger to the Devise she should take nothing And this Case was put by Barham Serjeant A Man deviseth 100 l. to his youngest Daughter 100 l. to his middle Daughter and another 100 l. to his eldest Daughter and that all these sums shall be levied of the profits of his Lands It was holden by the better Opinion of the Court in this Case That the youngest Daughter should be first paid and then the middle and then the eldest Daughter and that was said to be Coniers Case LXXXI Mich. 15 Eliz. In the Common Pleas. THe Case was The King granted to the Bishop of Salisbury That he should have Catalla felonum fugitivor ' and Fines and Amercements of all Tenants and Resiants within the Mannor of D. which Mannor the Bishop Leased for years and that the Lessee should have all profits and hereditaments within the same Mannor Manwood Iustice conceived That the Lessee should have the Post Fines For all things have a being somewhere although they be not visible As Rents Fines have their being in the Lands out of which they are issuing and that is in the Son of a Fine levied of the Land within the Mannor which is due by Land of him who ought to pay the Fine And this Fine is due be reason of the
the Mannor descended to Sir John Clifton who granted a Copy-hold to Hempston The Executors of Sir William Cordell distrain for the Rent And it was agreed by the whole Court That the Copyholder should hold his Copy-hold charged Vide inde 10 Eliz. Dyer 270. Windham It hath been adjudged That the Wife of the Lord shall not be endowed against the Copyholder which Periam granted and shewed a reason thereof For the Title of Dower is not consummated before the death of the Husband so as the Title of the Copyholder was compleated before the Title of Dower But the Title of the Grantee of the Rent is consummated before the Dower Fenner conceived That the Executors could not distrain upon the Possession of the Copyholder and he argued That this Case is not within the Statute of 32 H. 8. For by the Preface of the said Statute he conceived That the Statute extended but to those Cases for which by the Common Law no remedy was provided but in this Case the Executors by the Common Law might have had an Action of Debt Ergo. But Periam and Windham held the contrary For this Statute intends a further remedy for that mischief viz. not only an Action of Debt but also Dissress and Avowry See the words of the Statute viz. distrain for the Arrearages c. Vpon the Lands c. which were charged with the payment of such Rents and chargeable to the distress of the Testator so long as the said Lands continue remain and be in the seisin or possession of the said Tenant in Demesne who ought immediately to have paid the said Rent so being behind to the said Testator or in the seisin or possession of any other person or persons claiming the said Lands only by and from the said Tenant by purchase gift or descent in like manner and form as their Testator might or ought to have done in his life time It was moved by Fenner That here the Land charged doth not continue in the seisin or possession of the Tenant And here Sir J. Clifton was issue in tail and therefore he doth not claim only by the Father but per formam Doni and therefore he is not lyable Ergo nor his Heir Shuttleworth contrary Sir J. Clifton was chargeable and he claims only from them who immediately ought to have paid the Rent And the Copyholder claims by purchase from Sir J. Clifton so he claims from Sir William Clifton the Tenant although he doth not claim immediately For if the Tenant ought to have paid it and he dieth and the Land descendeth to his Heir and the Heir maketh a Feoffment the Feoffee shall be charged within this Statute although he doth not claim immediately So where Land discharged descends from the Tenant who ought to have paid it and so from Heir to Heir The Statute of 1 R. 2. is That all Grants c. shall be good against the Donor c. his Heirs c. claiming the same only as Heirs to Cestuy que Use Yet if Cestuy que Use grants a Rent-charge and his Feoffees are disseised the Grant shall be good against the Disseisor and yet he doth not claim only by Cestuy que Use And although Sir J. Clifton be Tenant in tail and so claims per formam Doni yet forasmuch as the Estate tail comes under the Estate of him who grants the Rent he shall be subject to the charge And this Statute extends not only to him who claims by the Tenant but also to the Heir of him c. And by Windham and Rhodes The Copyholder doth not claim only by the Lord but he claims in also by the Custom but the Custom is not any part of his Title but only appoints the manner how he shall hold The possession here is continued in Sir J. Clifton for the possession of his Copyholder is his possession so as if the Copyholder be ousted Sir J. Clifton shall have an Assise And so the strict words of the Statute are observed for the seisin and possession continue in Sir J. Clifton who claims only by Sir William Clifton who was the Tenant in Demesne who ought to pay the Rent But Fenner said to that That the seisin and possession intended in the Statute was the very actual possession i. e. pedis dispositio and such a possession in which a distress might be taken and that could not be taken in a Freehold without actual possession LXXXVIII Owen and Sadlers Case Hill. 18 Eliz. In the Common Pleas. 10 Co. 96. A Lease was made to A. for life the remainder to B. in tail the remainder to the right Heirs of B. who bargains and sells all his Estate or levies a Fine with Proclamations of it to D. A. commits Waste It was holden by the Court That D. shall not punish him in an Action of Waste for nothing passeth to him but during the life of the Grantor scil as to the remainder in tail in respect of which Estate the Action of Waste is only maintainable for although that the Feesimple passeth to the Grantee or Conusee yet in respect of that an Action of Waste is not maintainable until the Estate tail be spent LXXXIX Mich. 18 Eliz. In the Common Pleas. THe King seised of a Mannor 2 Cro. 53 123. Yel 90 91. 1 Cro. 240. 2 Roll. 371. Hob. Rep. 242. to which an Advowson is appendant A stranger presents and his Clerk is in by 6 months The King grants the Mannor with all Advowsons appendant to it to B. The Incumbent dieth In this case It was holden by the Court That the Grantee might present For the Advowson was always appendant and the Inheritance of the same passed to the Grantee for it was not made disappendant by the Vsurpation But the Patentee shall not have a Quare Impedit of the first disturbance for that presentment did not pass unto him being a thing in Action without mention of it in his Grant And if the Plaintiff brings a Quare Impedit of the second Avoydance he shall make his Title by the presentment of the King not making mention of the Vsurpation Yet if the Bishop present by Lapse in the case of a common person he ought to make mention of it XC Mich. 18 Eliz. In the Kings Bench. IN an Ejectione firmae upon an Evidence the Case was this The Bishop of Rochester 4 E. 6. Leased to B. for years rendring Rent and afterwards granted the Reversion to C. for 99 years rendring the ancient Rent Habendum from the day of the Lease without impeachment of Waste which Grant was confirmed by the Dean and Chapter but B. did not attorn And in default of Attornment It was holden by the whole Court That the Lease was void For it was made by way of grant of the Reversion and to pass as a Reversion But by Catline If the Bishop had granted the Reversion and also demised the Land for 99 years It should pass as a Lease to begin first after the
Plaintiff had acquitted and discharged him of the Reparations Vpon which the Plaintiff demurred in Law. Manwood The same is an Acquittal and Discharge of the Reparations as well for the time past as for the time to come by force of the said Covenant and amounts to as much as if he had Released the Covenant And it was moved If the Covenant being broken for want of Reparations If now that Acquital and Discharge or Release of the Covenant should take away the Action upon the Obligation which was once forfeited before And it was the Opinion of Manwood That it should not For if one be bound in an Obligation for the performance of Covenants and before the breach of any of them the Obligee releaseth the Covenants and afterwards one of the Covenants is broken the Obligation is not forfeited for there is not now any Covenant which may be broken and therefore the Obligation is discharged But if the Release had been after the Covenant broken otherwise all which Dyer and Mounson Concesserunt CVI. Mich. 20. Eliz. In the Common Pleas. HVsband and Wife seised in the right of his Wife of certain Customary Lands in Fee he and his Wife by Licence of the Lord make a Lease for years by Indenture rendring Rent have Issue two Daughters The Husband dieth The Wife takes another Husband and they have issue a Son and a Daughter The Husband and Wife die The Son is admitted to the Reversion and dieth without Issue It was holden by Manwood That this Reversion shall descend to all the Daughters notwithstanding the half-blood For the Estate for years which is made by Indenture by Licence of the Lord is a Demise and Lease according to the Order of the Common Law and according to the nature of the Devise the possession shall be adjudged which possession cannot be said possession of the Copyholder For his possession is Customary and the other is meer contrary therefore the possession of the one shall not be said the possession of the other and therefore there is no possessio fratris in this Case But if he had been Guardian by the Custom or this Lease had been made by surrender There the Sister of the half-blood should not inherit And Meade said That the Case of the Guardian had been so adjudged Mounson to the same intent And if the Copyhold descend to the Son he is not Copyholder before admittance 1 Len. 174 175. but he may take the profits and punish Trepass c. CVII Hinde and Lyons Case Hill. 20 Eliz. In the Common Pleas. 2 Len. 11. Dyer 124. Ante 64. DEbt by Hinde against one as Son and Heir of Sir John Lyon who pleaded Nothing by descent but the third part of the Mannor of D. The Plaintiff replyed Assets And shewed for Assets That the Defendant had the entire Mannor of B. by descent Vpon which they were at Issue And it was given in Evidence to the Iury That the Mannor was holden by Knights-Service and that the said Sir John the Ancestor of the Defendant by his Will in writing devised the whole Mannor to his Wife until the Defendant his Son and Heir should come to the age of 24 years And that at the age of the Son of 24 years his Wife should hold the third part of the said Mannor for the Term of her life and his Son should have the residue And if his Son do die before he come to the age of 24 years without Heir of his body that the Land should remain over to J.S. the Remainder over to another The Devisor died the Son came to the age of 24 years Dyer and Mounson Iustices conceived That here was not any Estate tail and then for two parts he is not in by descent For no Estate tail shall rise unless that the Son dieth before his said age and therefore the Tayl never took effect and the Feesimple descends and remains in the Son if not that he dieth before the age of 24 years and then the whole vests with the Remainder over but now having attained the said age he hath a Fee and that by descent of the whole Mannor and then his Plea is false that but the third part descended And a general Iudgment shall be given against him as of his own debt And an Elegit shall issue forth of the moyety of all his Lands as well those which he hath by descent from the same Ancestor as of his other Lands And a Capias lieth also against him But Manwood Iustice conceived That if a general Iudgment be given against the Heir by default in such case a Capias doth not lie although in case of a false Plea it lieth But Dyer held the contrary And the Writ against the Heir is in the debet detinet which proves That in Law it is his own Debt And he said That he could shew a President where such an Action was maintainable against the Executor of the Heir CVIII Hill. 20 Eliz. In the Common Pleas. A Seised of Lands in Fee Devised them to his Wife for life and after her decease she to give the same to whom she will Latch 9,39 had issue two Daughters and died The Wife granted the Reversion to a stranger and committed Waste And the two Daughters brought an Action of Waste It was holden by the Iustices That by that Devise the Wife had but an Estate for life but she had gained authority to give the reversion by his Will to whom she pleased And such a Grantee should be in by A. and his Will For A. had given expresly to his Wife for life and therefore by Implication she should not have any further Estate But if an express Estate had not been appointed to the Wife by the other words an Estate in Feesimple had passed CIX Hill. 20 Eliz. In the Common Pleas. THe Lessor Covenanted with his Lessee That the Lessee should enjoy the Lands demised without any lawful Eviction And afterwards upon a Suit depending in Chancery by a stranger against the Lessor for the Land demised The Chancellor made a Decree against the Lessor and that the stranger should have the Land. It was moved If that Decree were a lawfull Eviction by which the Covenant was broken It was holden by the Lord Dyer That the same was not any Eviction For although that in Conscience it be aequum that the said stranger have the possession yet the same is not by reason of any right paramount the title of the Lessor which was in the party for whom it was decreed CX The Marquess of Northamptons Case Hill. 20 Eliz. In the Common Pleas. PArre Marquess of Northampton took to Wife the Lady Bouchier the Heir of the Earl of Essex 1 Roll. 430. who levied a Fine of the Land of the said Lady Sur Conusans de droit c. with a Grant and render to them for life the Remainder to the right Heirs of the body of the Lady And afterwards by Act of
him any other surety for his Debt he is contented so to do And John Stampe offered to the said P. the said B. and C. and he accepted the same and at the request of the said John Stampe granted his Interest to them 2 Feb. 22 Eliz. P. having notice of the Grant before made to the said G. Vpon which G. enformed against P. upon the Statute of 32 H. 8. It was holden in this Case by Periam and Meade Iustice That P. was not within the penalty of the Statute For P. granted his Interest to B. and C. at the suit and at the request of John Stampe who was the Mortgager for assurance of his Debt which he ought to them And therefore it shall not be intended that that Grant was made for any maintenance or for any unlawful cause against the Statute And also John Stampe who granted unto P. had possession and received the Issues and Profits of the said Lands for a whole year before the Grant notwithstanding that he was not in possession by a whole year next before the day of the date of the Grant. Godb. 450. As if a Man be in possession or hath received the Issues and Profits for a whole year and afterwards a stranger enters upon him and hath the possession for the space of a Quarter of a year or half a year yet he who was in possession by a year before may grant his Interest without danger of the Statute c. CXX Pasch 24 Eliz. In the Kings Bench. NOte Per totam Curiam 2 Len. 35. A man made his Will in this manner scil I Will and Bequeath my Land to A. And the name of the Devisor is not in the whole Will Yet the Devise is good enough by Averment of the name of the Devisor And for proof that the same is his Will If one lying in extremis having an intent to devise his Lands by Word makes such devise but doth not command the same to be put in writing but another without the knowledge or Commandment of the Devisor putteth it in writing in the life-time of the Devisor the same is a good Devise For it is sufficient if the Devise be reduced into writing during the life of the Devisor CXXI Pepy's Case Pasch 25 Eliz. In the Common Pleas. WAste was brought by F. and his Wife against Pepy and declared That the said Pepy was seised and enfeoffed certain persons to the use of himself for life and afterwards to the use of the Wife of the Plaintiff and her Heirs The Defendant pleaded That the said Feoffment was to the use of himself and his Heirs in Fee c. absque hoc that it was to the uses as in the Count Vpon which they were at Issue And it was found by Verdict That the said Feoffment was to the uses contained in the Count but further found That the Estate of the Defendant by the Limitation of the use was priviledged with the impunity of Waste scil without Impeachment of Waste It was moved If upon that Verdict The Plaintiff should have Iudgment Anderson and Rhodes Iustices conceived That he should for that the matter in Issue is found for the Plaintiff and that is the Feoffment to uses contained in the Count and this impunity of Waste is a Forreign matter not within the Charge of the Iury and therefore the finding of the same is but matter of surplusage As if I plead a Feoffment of J. S. to which the other pleads That he did not enfeoff and the Iury find a Conditional Feoffment the Court shall not respect the finding of the Condition for it was not in Issue and no advantage shall be ever had of such a Liberty if it be not pleaded 30 H. 8. Dyer 41. In Dower the Tenant pleaded Ne unque seisi que Dower c. The Tenant pleaded That before the Coverture of the Demandant one A. was seised and gave the Land whereof Dower is demanded to the Husband of the Demandant in tail who made a Feoffment A stranger took the Demandant to Wife took back an Estate in Fee and died seised having Issue inheritable Now although upon the truth of the matter she is nâ—t Dowable de jure yet forasmuch as the parties were at Issue upon a point certain no forrein nor strange matter not in Question betwixt the parties shall be respected in the point of Iudgment But if the Defendant had pleaded it in Bar he might have foreclosed the Demandant of her Dower See 38 Ass 27. 47 E. 19. In a Praecipe quod reddat upon the default of the Tenant came one and shewed How that the Tenant who made default was but Tenant for life of the Lands in demand the Reversion in Fee to himself and prayed to be received The Demandant counterpleaded the Resceit Dicendo That the Tenant had Fee c. Vpon which Issue was taken And it was found That neither the Tenant nor he who prayed to be received had any thing in the Land. And in that Case The Court did not regard the matter which was superfluous in the Verdict For they were at Issue upon a point certain scil whether the Tenant was seised in Fee For it is confessed of the one side and of the other that he had an Estate for life and of that matter the Iury was not charged and they are not to enquire of that And so it is found against the Demandant by which the Resceit was granted See 7 H. 6. 20. The parties were at Issue upon a Dying seised which is found by Verdict but the Iury find further That the other party made continual Claim The said continual Claim shall not be respected in point of Iudgment because it was not pleaded in Avoidance of the Disceit c. Windham Iustice to the contrary because it appeareth to us upon the Verdict That the Plaintiff hath not cause of Action and therefore he shall not have Iudgment As in Detinue the Plaintiff declares upon a Baylment by his own hands The Defendant pleads Ne Detinue pas the Iury find the Detinue but upon Baylment by another hand In that case notwithstanding that the Detinue be found yet the Plaintiff shall not have Iudgment But Anderson Rhodes and Periam conceived That in the principal Case Iudgment should be given for the Plaintiff For in no case the party shall have advantage of that liberty of impunity of Waste if he doth not plead it And the Iurors are not to meddle with any matter which is not in issue and if they do It is but matter of surplusage and to no purpose and afterwards Iudgment was given for the Plaintiff See the Number Roll Pasch 25 Eliz. Rot. 602. CXXII Skipwith's Case Pasch 20 Eliz. In the Common Pleas. IN an Action of Trespass It was found by a special Verdict Godbolt 14 143. Co. of Copy-holds 94. That the Lands were Copy-hold Lands That the Custom of the Mannor was That Quaelibet Foemina Viro Co-operta poterit
he might be disseised But because the words of the Indictment were Expulit disseisivit which could not be true if the party expelled and disseised had not Freehold the Exception was disallowed Another Exception was taken to the Indictment For these words In unum tenementum intravit and this word Tenementum is too general and an uncertain word and therefore as to that the party was discharged But the Indictment was further In unum Tenementum decem acras terrae eidem pertinent And therefore as to the 10 Acres the party was enforced to Answer CL. Pasch 26 Eliz. In the Common Pleas. A. Granted to B. a Rent-charge out of his Lands to begin when J.S. died without Issue of his body J.S. died having Issue which Issue died without Issue Dyer said The Grant shall not take effect For J.S. at the time of his death had Issue and therefore then the Grant shall not begin and if not then then not at all And by Manwood If the words had been To begin when J.S. is dead without Issue of his body then such a Grant should take effect when the Issue of J.S. dieth without Issue c. Dyer If the Donee in tail hath Issue and dieth without Issue The Formedon in Reverter shall suppose that the Donee himself died without Issue For there is an Interest and there is a difference betwixt an Interest and a Limitation For if I give Lands to A. and B. for the Term of their lives if any of them dieth the Survivor shall have the whole But if I give Lands to A. for the life of B. and C. now if B. or C. die all the Estate is determined because but a Limitation and B. and C. had not any Interest See Cook 5 Part Bradnell's Case CLI Pasch 26 Eliz. In the Common Pleas. A. Enfeoffed B. upon Condition That if he pay 10. l. to the Feoffee his Executors or Assigns 4 Len. 232. 1 Len. 285 286. Hill. 12. Car. 2 B.R. Goodyer and Clarks Case within 3 yeares next ensuing that then it should be lawful for him and his Heirs to re-enter The Feoffee hath Issue two Sons whom he makes his Executors and dieth before the day of payment The Ordinary commits â—etters of Administration to J.S. during the minority of the Executors Manwood conceived That it is a most sure way for A. to pay the Monies to the Executors for they remain Executors notwithstanding the Administration committed to another For the Administrator in such case is but as Bailiff or Receivor to the Executors and shall be accomptable to them Which Harper and Dyer Concesserunt And Manwood said If in this Case the Monies be paid to one of the Executors it is sufficient and the same well paid but that Conditional Feoffments are as a Sum in gross and not in nature of a Debt Which the rest of the Iustices granted CLII. Pasch 26 Eliz. In the Common Pleas. A. Seised of a Mannor seased the same for years rendring Rent with Clause of re-entry and afterwards levied a Fine Sur Conusans de Droit to the use of himself and his Heirs The Rent being demanded is behind Dyer A. cannot re-enter for although in right the Rent passeth without Attornment yet he is without remedy for it is without Attornment and it would be hard without Attornment to re-enter c. It was moved further If here the Conusor be Assignee within the Statute of 32 H. 8. Manwood The Reversion of a Termor is granted by Fine there wants privity for an Action of Debt Waste and Re-entry But if the Conusee dieth without Heir although that in right it was in the Conusee yet the Lord by Escheat shall make Avowry and yet the Conusee by whom he claimeth could not And in the Case at Bar the Conusee himself could not but the Conusor being Cestuy que use who is in by the Act of Law 1 Inst 309. shall avow and shall re-enter without Attornment For the Conusor is in by the Statute of 27 H. 8. Harper The Heir of the Conusee shall avow and re-enter before Attornment Dyer 13 H. 4. The Father leaseth for years rendring Rent with Clause of re-entry the Father demands the Rent which is not paid the Father dieth the Son cannot re-enter For the Rent doth not belong unto him And therefore in the Case at Bar the Conusee cannot avow for the Rent before Attornment therefore not re-enter CLIII Trin. 26 Eliz. In the Common Pleas. IT is Enacted by the Statute of 5 Eliz. Cap. 8. That no person shall cut down any Oak Trees but between the first day of April and the last day of June but Timber imployed and bestowed in or about Buildings or Reparations of Houses c. And upon an Information upon that Statute the Defendant pleaded That he cut down the said Oak Trees and thereof made Laths to be bestowed in building and that he had sold them to J.S. who had imployed part of them in building and is imploying the residue in the same manner Windham The intent of the Defendant in cutting down the Oaks was not to have them imployed in building but to sell them Although it is not necessary for the satisfaction of that Statute that the Oaks presently after the cutting be imployed about building For if the Lessee of a Messuage who is to have House-bote seeing that his Messuage will want reparation cutteth down a Tree for such intent although there be not such urgent occasion at present that it ought to be presently repaired the same shall not be said Trespass for it is good Husbandry to have such Timber to be seasonable which cannot be without some reasonable time between the cutting down and the imployment Periam If at the time of the cutting the Vendor or Vendee had an intent to employ them about building it is good enough And it is a strong Case here because the Defendant imploys the Timber himself in Laths which is not of any use but for building and cannot be made but of Timber CLIV. Eve and Finch's Case Trin. 26 Eliz. In the Kings Bench. PEter Eve and John Finch brought an Action of Trespass against Nathaniel Tracy and Margaret his Wife and upon the pleading the Case was that John Finch Father of J.F. the Plaintiff seised of the Mannor of St. Katherines held the same of the Queen by Knight service in Chief and was also seised of the Land where the Trespass was done being holden in Socage and so seised 6 Junij 20 Eliz. for the preferment of the said Margaret then his Wife enfeoffed of the said Mannor A. and B. unto the use of himself and the said Margaret and their Heirs And that the said John the Father had not any other Land but that before mentioned and that the said Mannor at the time of the said Feoffment and at the death of the said John the Father attingebat ad duas partes of all the Lands and Tenements of the said
been Objected that J. cannot be said to die within the Term because by the descent of the Fee the Term is extinct or suspended and so not in esse at the time of the death of J. therefore nothing did accrue to G. because J. did not die within the Term but that is but a Conceit for the intent of Vincent was that the Heir should not meddle with the Land Devised as Heir until the 31 years be expired and words During or Within the Term extend unto the time of the Term and not unto the Estate And although that the Term as to J. be extinct yet the right or possession of G. shall stand and shall be expectant upon the death of J. before the expiration of the said 31 years As A. leaseth for life to B. and afterwards granteth the Reversion with Warranty to C. who releaseth to B. in Fee who is impleaded in a Praecipe although now B. hath a Feesimple yet during his life he shall not recover in value And in the principal Case This further Interest limited to G. cannot be extinct or prevented See Plow Com. Welden and Elkingtons Case Beaumont contrary And that the Term is extinct because he hath the said Term in his own right and not as Executor but as a Man trusted with payment of Debts and Legacies But the same Term which J. had G. cannot have for some of the years are expired and the words of the Will are He shall have such Term but here the Term is utterly extinct As where a Rent Common or Way c. descendeth upon the Ter-Tenant 2 H. 4. A Prior had an Annuity out of a Parsonage and afterwards he purchaseth the Advowson which is afterwards appropriated to his House now the Annuity is extinct and although the Prior afterwards presenteth to the Advowson yet it is-not revived Br. Extinguishment 54. A Man hath a Lease for years as Executor and purchaseth the Inheritance his Term is extinct yet it is Assets c. And it is said in Bracebridges Case Plow Com. 419. 14 Eliz. that Parson Patron and Ordinary Lease for years the Glebe Lands of the Parsonage the Parson dieth the Lessee for years becomes Parson and dieth his Executors shall not have the residue of the said Term for the Term is extinct 1 Inst 338. b. 2 Roll. 472. although he had the Term in his own right and the Freehold in the right of his Church and so in several Capacities And it was holden by some that if the Term for years comes to the Lessor as Executor who dieth the Term is revived Manwood Chief Baron asked this Case of those who Argued A Lease is made for 21 years Proviso That the Lessee shall suffer the Lessor to enjoy the same or to take the profits thereof during the life of the Lessor or so long as the Lessor shall live if the same were a good Proviso or not Pigot Conceived that the Devise to G. was a new Devise and not dependant upon the first Devise to J. nor any parcel of it but this second Devise to G. did take away the absolute Devise to J. before and qualified it so as it determined with his death The words Such Estate shall be intended an Estate to G. to be granted from the death of the Testator Land is Devised to A. and his Heirs and he if dieth without Heir that it shall remain to another the same is no good Devise But a Devise to one and his Heirs and if J.S. dieth living the Devisee B. shall have it the same is good for it is a new Devise and an Estate created de Novo and doth not depend as a Remainder upon the first Devise or upon the first Estate devised as the Case is 29 Ass 17. Br. Condition 111. and Devise 16. So here are several Estates limited one to J. and another to G. which Estate of G. cannot be extinct by unity of possession in J. These words If he die within the Term shall be construed for Effluxion of the time of 31 years and not for the Termination of the Term. Cooper Serjeant to the contrary J. took this Term as purchasor and not as Executor for that no Term was in the Testator See 14 Eliz. Dyer 309. Granmer's Case G. shall have such Term and Interest as before I have willed unto J. Manwood Such Term that is to say The Residue of the Term. Now at another day the Barons delivered their Opinions that the Plaintiff should recover and that was now G. to whom the second Term was devised And by Manwood in Construction of Wills all the words of the Will are to be compared together so as there by not any repugnancy between all the parts of the Will or between any of them so that all may stand And the Intent of the Testator was That his Son J. should have the Lands for 31 years if he so long lived and if he died within the Term That G. his Son should have such Term. And he held That the same was in J. an Estate by Limitation and he could not sell it nor could it be extinct by Act in Law or of the Law. It was a Lease determinable by his death and so shall be the Lease of G. determinable upon his own death and G. upon the death of J. within the Term shall have the residue of the number of the years limited by the former Devise scil so many in number as were not expired in the life of J. who was first Executor to that special purpose Gent Baron to the same intent here he hath the same Term as Executor and it is not like a-Term devised which the party hath as Legatee but in our Case he hath only authority in this Lease as Executor and the Land was tied to the time and the Authority and when the same determines in his person then the Land departs from him to G. who was a special Executor to that purpose as J. was before And G. had not the same Term which J. had but such a Term. Clerk Baron acc And he said that the Will was further that if G. died before his Debts paid and his Will performed and the Iury finding all the special matter concluded that if the Term limited to J. be extinct then they find for the Defendant And he held clearly that J. had this Term of 21 years as Executor and that by the discent of the Inheritance to J. the Term as to himself was gone But as to Creditors and to the Legatees it shall be said in esse and be Assets in his hands And because that the Term as to that purpose shall be said in esse he died within the Term within the intent of the said Will. And this word Term is Vox polysema Terminus status Terminus temporis Terminus loci And in our Case the word Term hath reference to time and not to estate for the Testator did respect the time in which his Will might be performed
Cantarista And it hath always been adjudged That a Chauntry by Reputation is within the Statute of 1 E. 6. CLXV Brian and Cawsen's Case Trin. 27 Eliz. In the Common Pleas. IN Trespass by Brian and his Wife and others against Cawsen It was found by Special Verdict 2 Len. 68. That W. Gardiner was seised in Fee according to the Custom of the Mannor of C. of certain Lands and surrendred them to the use of his last Will by which he Devised them in this manner scil I Bequeath to Jo. Th. my House and Lands in M. called Lacks and Stone To Ste. Th. my House and Lands called Stokes and Newmans And to Roger Th. my House and Lands called Lakins and Brox. Moreover If the said Jo. Ste. or Roger live till they be of lawful age and have Issue of their bodies lawfully begotten Then I give the said Houses and Lands to them and their heirs in manner aforesaid to give and sell at their pleasure But if it fortune one of them to die without Issue of his body lawfully begotten Then I will that the other Brothers or Brother have all the said Houses and Lands in manner aforesaid And if it fortune the Three to die without Issue in like manner Then I Will That all the said Houses and Lands be sold by my Executor or his Assignee and the Mony to be given to the Poor The Devisor dieth Jo. Ste. and Roger are admitted according to the intent of the Will Roger dieth within age without Issue John and Ste. are admitted to his part John comes of full age and hath Issue J. and surrenders his part of the whole and his estate therein to the use of Ste. and his Heirs who is admitted accordingly Ste. comes of full age John the Father dieth Ste. dieth without Issue J. the Son as Cosen and Heir of Ste. is admitted according to the Will and afterwards dieth without Issue The Wives of the Plaintiffs are Heirs to him and are admitted to the Lands called Lacks and Stone and to the moyety of the Lands called Lakins and Brox parcel of the place where c. praetextu quorum they enter into all the Lands where the Trespass is done And it was found that A. the Executor died Intestate And that Cawsen the Defendant is Cosen and Heir to the said Devisor and that he as Heir entred and did the Trespass First It was agreed by all That by the first words of the Will the 3. Devisees had but an Estate for life But Fenner and Walmesley who argued for the Plaintiffs Conceived That by force of the later words scil If the said John Stephen and Roger live till they be of lawful age and have Issue of their body lawfully begotten Then I give the said Lands and Houses to them and their Heirs in manner aforesaid c. They have Fee and the words In manner aforesaid are to be referred not unto the Estate which was given by the first words which was but for life but to make them hold in severalty as the first Devisor willed and not joyntly as the words of the second Devise purported And Fenner said It hath been Resolved by good Opinions That where a Fine was levied unto the use of the Conusor and his Wife and of the Heirs of the body of the Conusor with divers Remainders over Proviso That it shall be lawful to the Survivor of them to make Leases of the said Lands in such manner as Tenant in tail might do by the Statute of 32 H. 8. although those Lands were never Demised before the Fine yet the Survivor might demise them by force of the Proviso notwithstanding the words In manner c. So if Lands be given to A. for life upon Condition the Remainder to B. in manner aforesaid these words In manner aforesaid refer unto the Estate for life limited unto A. and not unto the Condition nor unto any other Collateral manner The words If they live until they be of full age and have Issue are words of Condition and shall not be construed to such purpose to give to them by Implication an estate tail For the words subsequent are That they shall have them to them and their Heirs to give and sell at their pleasure By which it appeareth That his intent was not to make an estate tail For Tenant in tail cannot alien or dispose of his estate c. And as unto the last words And if it fortune they three to die without Issue c. these words cannot make an estate tail and the express Limitation of the Fee in the first part of the Will shall not be controverted by Implication out of the words subsequent As if Lessee for 40 years Deviseth his Lands to his Wife for 20 years and if she dieth the remnant of the Term unto another although that she survive the 20 years she shall not hold over and here the second sale appointed to be made by the Executor shall not take away the power of the first sale allowed to the Devisee's after-Issue Snagg and Shuttleworth Serjeants to the contrary And they Conceived That the Defendant hath right to two parts for no express Inheritance vests in the Devisees until full age and issue and because two of the Devisees died without Issue they never had any Inheritance in their two parts and so those two parts descended to the Defendant as Heir to the Devisor no sale being made by the Executor These words If John Stephen and Roger are to be taken distributive viz. If John live c. are to be taken distributive If John live until c. he shall have the Inheritance in his part and so of the rest As if J. have right unto Land which A. B. and C. hold in Common and J. by a Deed release to them all the same shall enure to them severally 19 H. 6. And here these later words If these three do die without Issue by that they conceived The same to be but an estate in tail And see to that purpose 35 Ass 11. 37 Ass 15. For a Man cannot declare his intent at once but in several parts all which make but one sentence And so it is said by Persay 37 Ass 15. We ought to have regard upon the whole Deed and not upon parcel And see Clark's Case 11 Eliz. Dyer 330 331. And it was said If I give Lands to one and his Heirs so long as he hath Heirs of his body it is a Feesimple determinable and not an estate in tail Quaere of that Then here the Feesimple is determined by the death of the Devisees without issue and therefore the Land ought to revert to the Heir of the Devisor especially being no person in rerum natura who can sell for the Executor before sale by him made died Intestate and if he had made an Executor yet the Executor of the Executor could not sell Which see 19 H. 8 9 10. And afterwards Resolved That no estate tail is
no case where the party useth but the means of the Law by the Kings Writ without any Corruption or Covin of the party he shall be amerced only pro falso clamore and no Action lieth against him because he hath not used but the means of the Law. Which see 2 R. 3. 9. by all the Iustices But yet in an Appeal because it toucheth the life of a Man the Defendant shall have his damages against the Plaintiff but not in any other Action which is a vexation by suit if no Corporation or Covin be in the party who prosecutes such suit See such matter justifiable in Conspiracy 35 H. 6. 13 14. Afterwards the principal Case was adjourned CXCI. Parker and Howard's Case Pasch 28 Eliz. In the Kings Bench. 2 Len. 102. IN Debt upon an Obligation the Condition was That whereas the Plaintiff and Defendant be now joyntly seised of the Office of the Register of the Court of Admiralty If the Defendant shall permit the Plaintiff to exercise the said Office and take the profits of it wholly to his own use during his life without let or interruption done by him That then c. The Defendant pleaded That the Custom of the Realm of England is That the Lord Admiral for the time being might grant the said Office and that such Grant should be good but for the life of the Grantor And further shewed 1 Len. 103. That the Lord Clynton Lord Admiral granted the said Office to the Plaintiff and the Defendant and died And that the Lord Howard was appointed Lord Admiral And that he 27 Eliz. granted the said Office to one Wade who put him out and interrupted him before which time the Defendant suffered the Plaintiff to enjoy the said Office and to take the profits of it Vpon which the Plaintiff demurred in Law. Cook argued for the Plaintiff That the Defendant's Plea was not good for he hath not entituled the Lord Admiral to grant the Office For he saith That the Custom of the Realm of England is which he hath pleaded in such manner as no Issue can be taken upon it for it is pleaded Quod usitatum est quod Admirals pro tempore existens Non potest Concedere Officium praedict nisi pro termino vitae suae and that cannot be for it cannot be tryed for the Venire facias cannot be Of the Realm of England Also if it be Through the whole Realm of England then the same is the Common Law and not Consuetudo Which see Br. Custom 39. And see 4 5 Mar. Dyer 152 153. An express case of this Office And there he prescribes in Consuetudine in Anglia c. And also that such Grant is good but during the life of the Admiral who granted it Also he doth not answer to any time of the Grant of the Admiral Howard For if he were lawfully put out by Wade yet the Defendant against his own Obligation cannot put us out or interrupt us As L. 5 E. 4. 115. In a Quare Impedit against an Abbot and the Incumbent who make default upon the distress upon which a Writ to the Bishop was awarded for the Plaintiff Vpon which the Bishop retorned That the Incumbent resigned of which the Bishop gave notice And afterwards Lapse encurred and the Bishop collated the said former Incumbent and then that Writ came to him Now although the Incumbent be in by a new title yet he is bound by the Iudgment So here although the Defendant had another title and the former title of the Plaintiff be determined yet against his own Deed and Obligation he shall not put out the Plaintiff And the Court was clear That the Iudgment should be given for the Plaintiff But afterwards the Cause was Compounded by the Order of the Lord Chancellor CXCII Mannings Case Mich. 28 Eliz. In the Kings Bench. NOte It was agreed by the Iustices in this Case That where an Enfant Executor sold the Goods of his Testator at less undervalue than they were worth And afterwards brought an Action of Detinue against the Vendee upon it in retardatione executionis Testamenti That this sale of the Enfant Executor was good and should bind him notwithstanding his Nonage CXCIII Mich. 28 Eliz. In the Common Pleas. THe Case was A Man made a Feoffment in Fee to the use of himself for life and afterwards to the use of his eldest Son in tail and afterwards to the use of his right Heirs not having at the time of the Feoffment any Son Afterwards he suffered a Common Recovery had Issue a Son who died in the life of his Father having Issue a Son and afterwards he himself dieth It was holden in this Case That the Son and Heir of the Son should not avoid this Recovery by the Statute of 32 H. 8. For there was not any remainder in him at the time of the Recovery had but the remainder then was in abeyance for then the Son was not born And the words of the said Statute are That such Recovery shall be void against such person to whom the Reversion or Remainder shall then appertain i. e. at the time of the Recovery And it was said That if Lands be given to E. for life the Remainder to B. in tail the Remainder to C. in fee B. dieth his Wife with Child with a Son A Recovery is had against E. with the assent of C. and afterwards the Son is born he shall not be helped by this Statute for that the Remainder was not in esse at the time of the Recovery But it was holden in the principal Case That the Heir might avoid this Recovery by the Common Law For the Recompence could not extend to such a Remainder which was not in esse CXCIV The Countess of Sussex and Wroth's Case Hill. 28 Eliz. In the Common Pleas. IT was moved in this Case by Gawdy Serjeant If the Disseisee Licence J.S. to put his Cattle into the Land whereof he was disseised If it were a good Licence And If by the Execution of the said Licence the Freehold should be revested in the Disseisee so as if the Disseisor distrain the Cattel of J.S. for Damage-feasant and in a Replevin avow the Plaintiff may plead That the Freehold was in the Disseisee who so Licensed him Periam Iustice The Licence is void For at the time of the grant of it the Disseisee had but a Right before he had recontinued the Land by re-entry Windham If the Disseisee make a Lease for years of the Land whereof he is Disseised it is a void Lease Anderson If the Disseisee command one to enter into the Land and he doth accordingly the same is good The Case was adjourned CXCV. Payn 's Case Mich. 28 Eliz. In the Exchequer 2 Len. 205. A Writ of Error was brought by Payn Treasurer of the Records in the Kings-Bench in the Exchequer-Chamber upon a Iudgment given in the Court of the Exchequer for the Queen upon an Assignment of a
Land during his life And he conceived That this Estate of Tho. Venables was in the King without Office not to grant for he is restrained by the Statute of 18 H. 8. but it is in him so before Office that he who hath right ought to sue to the King by Petition if he will have the same Yet he conceived That before the said Statute of 18 H. 6. the King might grant it before Office as it appeareth by Thirning 13 H. 4. 278. which was before the Statute So if the Kings Tenant makes a Lease for years the remainder over to another in Fee who dyeth without Heir the said remainder is in the King without Office because a common person in such case cannot enter but a Claim is sufficient and therefore it shall be in the King without Office. As to the Pardon He conceived That it did not extend to this Estate For the same is a Freehold therefore not within the Pardon As if the Kings Tenant be attainted of Felony and the King pardons him all Offences and all which he may pardon these words will not go or extend to Freehold but only to personal matters and such punishments and pains which do concern Chattels But it may be Objected That in this Pardon title of Quare Impedit and Re-entries for Conditions are excepted and therefore if they had not been excepted they had been released by the Pardon And therefore this Pardon doth extend to Inheritances and Freeholds As to that I say That such Exceptions were not in use in the time of King Ed. 4. and such Inheritances and Freeholds were not taken to be within such Pardons And such Exceptions began 5 Eliz. And he said he had been of Counsel in such Cases where it had been taken That such Pardons did not extend to Freeholds As an Abbot was disseised and during the Disseisin the Abby was dissolved the King made such a Pardon the same did not transfer the Kings right And in this Case there are divers Exceptions of Goods and Chattels in many cases and therefore it cannot be intended that this Pardon doth extend to Freeholds And see the said Act of Pardon There the Queen gave and granted all Goods Chattels Debts Fines Issues Profits Amercements Forfeitures and Sums of Mony which word Forfeiture shall be intended personal forfeiture and not otherwise for it is coupled with things of such nature And as to the Traverse he conceived That it did not lie in this Case For the Office is not untrue in substance although it be void in Circumstances And also the King here is entituled by double matter of Record i. e. the Attainder and the Office. And he said That the Statutes of 34 36 E. 3. which gave Traverse are to be meant of Offices found virtute Officii and not virtute Brevis for then Escheators were very troublesome And 2 E. 6. doth not give traverse but where the Office is untruly found As if the Kings Tenant be disseised and the Disseisor be Attainted The Queen seiseth the Land Now the Disseisee hath no remedy by traverse upon the Statute of 2 E. 6. but is put to his Monstrans de Droit for that the Office is true But if I be the Kings Tenant and seised of Lands accordingly and it is found that J.S. was seised of my Land and attainted c. whereas in truth he had not any thing in my Land there Traverse lieth For the Office is false And so our Case for the Traverse is at the Common Law. And it is true that Venables was seised c. Cook to the contrary And he conceived That by the Attainder the Queen had gained but a Chattel And that notwithstanding this Forfeiture If Venables had been in possession a Praecipe should be brought against him And whereas it hath been said by Mr. Attorny That the Writs set down in the Register are the best Expositors of our Law the same is not so For the Register saith That Waste lieth notwithstanding a mean Remainder which is not now Law but it hath been clearly ruled to the contrary See acc 50 E. 3. The Register therefore and the Writs are subject to the Iudgments of our Law. And the Writ of Diem clausit extremum is not to the contrary For I confess that in such case Hob. Rep. 342. the Land shall be seised into the Kings hands but the King shall have but a Chattel in it It hath been argued He may grant therefore he may forfeit Nego Consequentiam For a Man seised in the right of his Wife may grant but not forfeit Gardian in Socage may grant but not forfeit The Husband may grant a Term for years which he hath in the right of his Wife but he cannot forfeit it A Woman enheritrix taketh Husband and afterwards is attainted of Felony the King pardons him they have Issue the Woman dieth the Husband shall be Tenant by the Curtesie which proveth that the King hath no Freehold by this Attainder Before the Statute of West 2. Tenant in tail post prolem suscitatam might forfeit the Land but now the Statute hath so incorporated the Estate tail to the Tenant in tail that it cannot be devested yea a Fine levied ipso jure est nullus although as to the possession it be a discontinuance And that is the reason wherefore Tenant in tail shall not be seised to another's use See Stamford 190. b. The Husband seised in the right of his Wife is attainted of Felony the King shall have the Issues of the Land of the Wife during the life of the Husband c. So if Tenant in tail be Attainted of Felony that is but a Chattel in the Lands of the Wife and also in the Lands of the Tenant in tail and if the possessions of a Bishop be seised into the Kings hands for a Contempt In such case the King hath possession and not only the profits The same Law of Lands of Tenant in tail or for life being attainted of Felony So seisure for alienation without Licence or of the possessions of Poor Aliens See Br. Reseisure 10. So where the seisure is for Idiocy And he conceived That nothing is in the King without Office. And as to the Case of 13 H. 4. 6. I confess it For all that time many and amongst them Lawyers and Iustices were attainted by Parliament And so was Sir John Salisbury whose Case it was and their Lands by Act of Parliament given expresly to the King and therefore I grant that their Lands were in the King without Office. Tenant in Fee of a Common Lord is attainted of Felony his Lands remain in him during his life till the entry of the Lord and where the King is Lord until Office be found but in the case of a Common person after the death of the person attainted it is in the Lord before Entry and in the Case of the King before Office for the Mischief of Abeyance And see the Lord Lovell's
hic in Curia prolat is but form And afterwards the Iudgment was reversed for default of the said matter Magno sigillo Angliae sigillat And by Anderson Iustice Patents are good without Inrollment and that was adjudged in Hungate's Case CCXLI. Mich. 29 Eliz. In the Exchequer Chamber DEbt brought upon an Obligation Post 266. The Defendant pleaded payment apud Lockington in the Parish of Killmerston And the Venire facias was awarded de Lockington And that was assigned for Error in the Exchequer Chamber upon a Iudgment given in the Kings Bench That the Venire ought to be de Killmerston See 6 H. 7. 3. 11 H. 7. 23 24. 9 E. 4. 3. Trespass for Entry in the Mannor of D. in S. the Visne shall come de Vicineto de S. and not from the Mannor Contrary if it be for the entry into the Mannor of D. only for there it shall be de Vicineto Manerii Cook said There was a Case very late adjudged in the Kings Bench A Lease was pleaded to be made at Ramridge End in Luton and that he himself was of Opinion That the Venire ought to have been of Ramridge End and not of Luton But the Court Over-Ruled the same against him It was said in the principal Case That Lockington shall be intended a Town as this Case is For a Parish may contain many Towns. And afterwards the Iudgment was affirmed CCXLII. Mich. 29 Eliz. In the Common Pleas. IN Trespass for breaking his Close The Defendant pleaded That heretofore he himself brought an Ejectione Firmae against the now Plaintiff of the same Land in which the Trespass is supposed to be done and had Iudgment to recover c. and demanded Iudgment if against c. It was moved That the Bar was not good 1 Len. 313. because that the Defendant had not averred his title And the Recovery in one Action of Trespass is no Bar in another c. Quod Curia concessit But as to the matter the Court was clear That the Bar was good And by Periam Who ever pleaded it it was well pleaded For as by Recovery in an Assise the Freehold is bound so by Recovery in an Ejectione firmae the possession is bound And by Anderson A Recovery in one Ejectione Firmae is a Bar in another Especially as Periam said if the party relyeth upon the Estoppel And afterwards Iudgment was given That the Plaintiff should be barred CCXLIII Peter's Case Mich. 29 Eliz. In the Common Pleas. WIlliam Peters being Plaintiff in an Action of Debt in the Common Pleas came to London this Term to prosecute his Action And afterwards he was committed to the Marshalsey by the Lord Hunsdon Chamberlain of the Queens houshold and one of her Privy Council And now an Habeas Corpus issued out to the Keeper of the Marshalsey to have the body of the said Peters in Court And at the day the Keeper retorned the said Writ That the said Peters was committed to the said Prison by the said Lord and shewed the Warrant for it there to remain and to Answer before the Lords of her Majesties Council to such matters c. Causa vero detentionis mihi omnino incognita est The Court examined the said Peters upon his Oath If he came to London to prosecute his said Cause Who answered That he did And the Court also examined the said Keeper If he had acquainted the said Lord with the said Writ Who said That he had so done but he shewed him not any Cause Wherefore by the Award of the Court Peters was discharged of his Imprisonment CCXLIV Hill. 29 Eliz. In the Common Pleass SErjeant Fenner demanded the Opinion of the Court in this Case A. Devised Lands to his Wife for life 1 Co. 155. and afterwards to B. his Son and his Heirs when he should come to the age of 24 years and if his Wife died before his said Son should attain his said age of 24 years that then J.S. should have the said Land until the said age of the said Son A. died J.S. died the Wife died the Son being within the age of 24 years If the Executors of J.S. should have the Land after the death of J.S. until the said age of the Son was the Question Anderson and Periam conceived That he should not For this Interest limited to J.S. by the Will was but a possibility which was never vested in him and therefore could not by any means come to his Executor Rhodes and Windham doubted of it Fenner put the Case in 12 E. 2. Fitz. Condition 9. Where Land is mortgaged to J.S. upon payment of Mony to J.S. such a day or his Heirs and before the said day J.S. by his Will deviseth That if the Mortgagor pay the Mony that then A. B. should have them That this Devise of this possibility is good Quod omnes Justiciarii negaverunt And Windham put the Case between Weldon and Elkington Plow Com. 20 Eliz. 519. Where Lessee for years devised his Term to his Wife for so many years of the said Term as she should live And if she died within the Term that then his Son Francis should have the Residue of the Term not encurred Francis died Intestate the Wife died within the Term The Administrator of Francis had the residue of the Term and yet nothing was in Francis the Intestate but a Possibility A Lease was made to one Hayward his Wife and one of his Children Habendum to Hayward for 99 years if he should so long live and if he die within the said Term that then his said Wife should have the said Term for so many years which should be to come at the time of the death of her Husband And if she died also before the said Term That then the Child party to the Devise should have it for so many years of the said Term as should not be expired at the time of the death of the Wife And the Case of Cicill was vouched 8 Eliz. Dyer 253. A Lease was made to William Cicill pro termino 41 annorum si tam diu vixerit Et si obierit infra praedictum terminum extunc Uxor praedicti William Cicill habebit tenebit omnia singula praemissa pro residuo termini praed incompleto si tam diu vixerit Et si the said Eliz. obierit infra praedict terminum tunc William Cicill filius c. And it was holden by Catlyn and Dyer That these remainders were void For the Term is determinable upon the death of William Cicill the Father and the Residue of the said Term cannot remain And by Anderson The remainders of the Term limited ut supra are void For every remainder ought to be certain but here is no certainty for it may be that the first possessor of the Term may live longer or die sooner so as he in the remainder doth not know what thing he shall have And so also conceived Rhodes Iustice And he put the Case between
the first Lessee and so by acceptance of this new Lease the first Lease is determined And now we are to see if the things in the former Grant are necessary to be recited the Estate in the Land and the Tenant not necessary The Reservation Condition Covenant and the Date The reason wherefore the Estate ought to be recited is to this purpose that the King might know and be enformed how far the Land is encumbred with other Estates c. but that reason is of no effect in our Case when the second Patent is made to the first Lessee for by the acceptance of the new Estate the first Interest is gone wherefore of that there needs no recital The second reason wherefore such former Lease ought to be recited is to the intent That the new Patentee may not have colour or countenance by reason of his Patent to do wrong to the first Patentee who hath the present possession by disturbing of him by Entry or Suit for all the truth of the matter appears in his own Letters Patents and the true Estate of the Tenant in possession But that reason hath not any force in our Case for the second Estate is made to him who hath the former Estate The reason wherefore the present Tenant ought to be mentioned in the second Letters Patents is so as the Queen may be ascertained what manner of person he is who is the present possessor for it may be he is such to whom the Queen hath given such Estate upon special favour for his good Service and in recompence thereof and that she will not disgrace the party so much as to give his Farm to another over his head which might be much to the discomfort and prejudice of him in possession which the Queen peradventure would not do if she had full intelligence of it but rather advantage him with it and not let it to any other person But in our Case here there is not any such matter of mischief But it is good to consider what Tenant ought to be specified in the Recital Assuredly the most sure way is the Patentee himself to whom the Lease was originally made although he be dead or hath assigned his Interest over For it may be dangerous to rely upon the Tenant who hath the possession for it may be that another hath the Interest although he hath the possession and then the recital is false wherefore it is best to say by way of recital Cum dimisimus c. And as to the Land the same also ought to be recited by the same name in such form and by the same words as it was granted before in the former Grant and yet if the name was mis-recited in the former Grant it ought not to be so in the second As if the King Grant the Mannor of Little-Court by the name of the Mannor of Litt-cote or the Mannor of Wellington by the name of the Mannor of Welton the same is good by the Statute But if a new Grant is to be made of the same in which the first Grant is to be recited now the former mis-recital shall not be put in ure but the very name but in this special manner that is where the King hath demised the Mannor of Little-cote by the name of the Mannor of Litt-cote c. So where a Mannor is known by two names and the Queen leaseth the same by one of the said Names and afterwards Grants the same by the other name The Recital ought to be That whereas the Queen hath demised the Mannor of D. by the name of the Mannor of S. c. And as to the recital of the Estate the Habendum in the first Patent ought to be recited and all that which preceeds the Reddendum for in that the Estate is fully contained But here in our Case such recitals are not necessary for it is impertinent to make recital of the same which is determined eo instante that the new Patent is made and that by reason of a matter precedent although that all be done eodem instanti and as to an Instant the same is not to be considered in Law as it is in Logick as a point of time and no parcel of time But in our Law things which are to be done in an instant have in consideration of law a priority of time in them As Lessee for life makes a Lease for years they both Surrender to him in the Reversion the same Surrender which is made in an instant shall in Law be understood to have degrees The Surrender of Lessee for years to the Tenant for life and then the Surrender of Tenant for life So in our Case the determination of the first Lease shall be first 1 E. 3. 6. The Tenant took the Seignioresse to Wife had Issue the Wife died the Husband shall not be Tenant by the Curtesie for although the Seigniory was in him at the time of the Marriage yet by priority in Law it ceased so as no seisin of the Seigniory was during the Coverture So in our Case eo instante that this new Patent is made the first Estate is determined yet in construction of Law the Surrender shall be said precedent and then the said Estate needs not to be recited For if there had been an express Surrender in fact there had not been any doubt that recital was not necessary Ergo neither in the Case of a Surrender in Law. As to that which hath been Objected That the Grant of the Queen cannot enure to two Intents scil to make a Surrender and also to make a new Lease The same Rule is true where both Intents enure and work against the King But whereas the one Intent serves and works for the benefit of the King it is otherwise As in our Case This Surrender is for the benefit of the King therefore it shall be taken c. as 6 H. 8. The King Grants Land to another durante beneplacito and afterwards the same Patentee purchaseth a new Estate from the King here needs not any recital of the former for the second Estate is made to the first Patentee and the first Estate is determined by the acceptance of the second 3 Eliz. The Case of the Earl of Arrundel was this The Lord John Gray being Lessee for years of a House called Hull-rake of the Lease of the Queen afterwards took a Grant from the Queen of the Custody of the same Messuage with a Fee for it and that was without recital of the former Lease and the Grant holden good and yet it did enure to two Intents to a Surrender of the Lease and a Grant of the Custody but both the Intents were not against the Queen for the Surrender was for Her benefit As to the Lease made 13 Eliz. it is utterly void for mis-reciting of the date of the former Lease made 2 Mar. for the very date of the said Lease was the 11th of May and in the Recital it is the 21 of May. For
Demands or Grants Omnia terras tenementa sua But general words qualified with a restraint where the Limitations are effectual As if the King Grants Omnia terras tenementa sua in D. which he hath by the Attainder of J.S. or which were the possessions of such dissolved Monasteries such Grants are good And where the Case is That Queen Mary hath the Lands in possession of the annual value of 19 l. and other Land there in Reversion of the annual value of 6 l. and then she Grants Omnia terras tenementa nostra rendring 19 l. per annum I conceive That upon these words the Land in possession only passeth because that the said general words may be aptly served and satisfied with the Lands in possession if no other Lands pass And I agree That this word Nostra extends as well to the Lands in Reversion as to Lands in possession but most properly to Lands in possession for Land in Reversion cannot dici simpliciter Nostra but quodam modo tanquam terra revertens and not to take the natural profits of it for the Termor hath such properly that he shall have an Action of Trespass Quare clausum fregit But the intent and meaning of the Queen is to be regarded and that is the surest way to have right intelligence of the Grants of the King For here the Queen hath reserved but 19 l. Rent which is the proper and ancient Rent of the Lands in possession and if Lands in Reversion should also pass the Rent of which was 6 l. per annum then upon the whole Grant but 19 l. being reserved the Queen should lose 6 l. per annum of her ancient Rent which should be contrary to the intent and meaning of the Queen and the intent of the Grantor even in the Case of a Subject shall direct the construction of Grants As 9 H. 6. Br. Grants 5 by Babington A Man grants Common in his whole Lands he shall not have Common in his Orchards Gardens or Meadows for such was the meaning of the Grantor a fortiori in the Case of the King. It hath been argued That the former Lease ought not to be recited because that after the first Lease made by King Henry the 8th the Inheritance hath been in a Subject that is the Bishop of Bath and Wells but the same is not so For if the King makes a Lease for years and afterwards Grants the Reversion upon Condition which after is broken and so found by Office by which the Reversion is reduced to the King If now the King will make a new Lease he ought to recite the former Estate notwithstanding the mean grant of the Reversion or else such second Lease is void Another matter hath been Objected wherefore the former Lease ought not to be recited and that is because it is determined by surrender in Law before that the new Lease takes effect Sir the same is not so for the former Lease is in being as the Case betwixt Fulmerston and Steward 1 Mar. Plow Com. 106. upon the Statute of Monasteries 31 H. 8. See the words of the Statute whereof and wherein any Estate or Interest for years at the time of the making of any such Lease had his being or continuance And an Abbot made such a Lease to one who had a term for years of a former Grant although here be a Surrender yet this Case is within the said Statute and the said former Lease shall be said to have his being at the time of the making of the later Lease and the Surrender shall not be said so to preceed the making of the Lease but that the former Lease shall be said in Esse at the time of the making of the later Lease And in our Case it shall not be taken for any Surrender for then the Queen shall lose 6 l. of her ancient Rent and Revenue and always when the Title of the King and of the Subject concur the Title of the King shall be preferred as 43 E. 3. The King Lord Mesne and Tenant The Tenant pays his Rent at the day to the Mesne before Noon and then the same day before Night the Mesne dieth his Heir within age the King shall be paid the Rent again for here the Title of the King and the Subject concur together at one time and in that the King shall be preferred and so he prayed Iudgment for the Defendant And afterwards at another day the Iustices declared their Opinions and by Wray Chief Iustice We all agree That the first Lease ought to be recited and the reason which hath been urged against that point hath reduced us to be of that Opinion scil That the second Lease was made to the first Patentee and the King doth not make the recital but the party ought to inform the King of all former Estates of the said Lands and that he might well do for he is well knowing of them and although that the Reversion after the first Lease made hath been conveyed to a Subject the same is not material here forasmuch as the second Estate is made to him who had the first Estate and might know whether the first Estate were determined or not Also by the re-purchase the King is in Statu quo prius Gawdy Iustice although that the former Term be drowned by the taking of the second Lease yet it was in being at the time of the taking of it as it is holden by Bromley in the Case of Fulmerston and Steward It is determined by the second Lease and yet it was in being at the time of the making of it Fenner Iustice to the same intent Clench Iustice If the Grant of the Queen shall enure to two intents then the Queen should lose 6 l. per annum of her ancient Revenue It was agreed by all the Iustices That the general words in as much as they are restrained to a certainty would pass the thing si caetera essent paria contrary if they had remained in the generalty and afterwards Iudgment was given Quod querens nihil Capiat per Billam CCCXXXVIII Trin. 32 Eliz. In the Common Pleas. 4 Len. 233. A Man 30 Eliz. made a Feoffment in Fee to the use of himself for life and afterwards to the use of his Son and his Heirs The Father and the Feoffees before issue for Mony by Deed granted and enfeoffed J.S. and his Heirs who hath not notice of the first use The Tenant for life hath issue and dieth the issue entreth Glanvil the use limited to the first Son is destroyed for without regress of the Feoffees it cannot rise and it is gone by their Livery See the Case in Plowden 349. and also he vouched the Case of the Earl of Kent where by the Release of the surviving Feoffee 2 Roll. 797. Plow 347. a Sleeping-Vse was destroyed and could not after be revived Harris the use may rise without entries of the Feoffees and he put a difference between an
Eliz. Leon. 166. Lib. 1. was this Term adjudged upon the Devise That the Survivour shall be each others Heir It was holden That all the surviving Brothers are Ioynt-Tenants and although this word Survivour be in the singular number yet in sense upon the whole matter it shall be taken and construed as for the plural number Survivour shall be each others Heir i. e each Survivour i.e. every Survivour i.e. All the Survivours and then in this case The Plaintiff and the Defendant being Ioynt-Tenants cannot maintain an Action of Trespass one against the other CCCLIII Mich. 32 Eliz. In the Common Pleas. BY the Statute of 32 H. 8. cap. 37. The Executors of a Grantee of a Rent-Charge may distrain for the Arrearages of the said Rent in the life of the Testator so long as the Land charged doth continue in the seisin or possession of the Tenant in Demesne who ought immediately to have paid the said Rent or in the seisin of any other person or persons claiming the said Lands only by and from the said Tenant by purchase gift or descent in like manner as the Testator might or ought to have done in his life-time It was now moved If A. grant a Rent-charge to B. the Rent is behind B. dieth A. enfeoffeth C. in Fee who divers years after enfeoffeth D. who divers years after enfeoffeth E. It was holden in this Case by Walmesley Periam and Windham Iustices That E. should be chargeable with the Arrearages to the Executors Anderson Chief Iustice held the contrary But they all agreed That the Lord by Escheat Tenant in Dower or by the Curtesie should not be chargeable for they did not claim by the Party only but also by the Law. CCCLIV. Leverett and Townsend's Case Trin. 32 Eliz. In the Kings Bench. IN an Action upon the Case for disturbing him of hs Common 3 Cro. 198. 2 Len. 184. The Plaintiff declared That he was seised in Fee of a Messuage and certain Lands And that he and all those whose Estate he hath have Common of Pasture in 16 Acres of Lands called D. from the time that the Corn is reaped until it be sowen again And also Common of Pasture in Land called R. omni tempore anni as appendant to the said Messuage and Land and that the Defendant had plowed the said Lands and so disturbed him of his Common It was moved in stay of Iudgment That it appeareth here that the Plaintiff was seised in Fee and so he ought to have an Assise and not an Action upon the Case But the Exception was disallowed by the Court. Vide inde Ante 13. 2 H. 4. 11. 8 Eliz. Dyer 250. 11 R. 2. Tit. Action upon the Case 36. CCCLV. The Chamberlain of London's Case Mich. 33 Eliz. In the Kings Bench. THE Chamberlain of London brought an Action of Debt in the Mayors Court in Guild-hall 5 Co. grounded upon an Act of Common Council See C. 5 Part The matter was removed into the Kings Bench by Corpus cum causa Fleetwood Recorder of London prayed a Procedendo It was Objected That they of London could not make Ordinances to bind the Subjects as an Act of Parliament To which It was said by Fleetwood That the Custom of the City is That the Mayor and Aldermen and four persons chosen out of each Ward by the Communalty may make Ordinances which they call Acts of Common Council and they shall bind every Citizen and Free-man and all their Customs are confirmed by Act of Parliament and by Magna Charta which hath been confirmed 52 times and also by the Statute of 7 R. 2. For that King seised their Liberties and drove them to pay for the Redemption of them 100000 Marks and then the said King confirmed them unto them for ever and therefore this Ordinance being made according to our Custom ought not to be impeached As in Case of matters of the Forrest If one be punished for offending against an Ordinance made for the governing of the Affairs of the Forrest you cannot remove the matter before you So is the Law called Lex Idumaea concerning Rivers and Fishing in which are divers Ordinances That none shall kill Salmons at certain Seasons of the year and so of other Fishes If one be punished by force of such Law he shall not be relieved here for the Law of the Land hath always allowed such particular Customs And see F. B. If two Merchants put their Stocks together and so Traffick together and the one dieth The Survivor shall not have the whole Stock as the Common Law is but the Executor of him that dieth shall have an Accompt against the other and that is per Legem mercatoriam Cook to the same intent This Act of Common Council is good and according to the Law that is of Common Right There are divers Statutes made for the true making of Cloth and to take away the abuses and deceit in the making of it and this Act of Common Council is for the well executing of the said Statutes and I conceive there is a difference in making of Laws by a Corporation A Corporation may make an Act for the better executing of any Law established at the Common Law but new Laws they cannot make As those of a Town who have used to have Common in certain Lands they cannot make a By-Law That such a one in such a Town shall not have Common there but that none shall use his Common but at such a time such a By-Law made is good See 15 H. 7. 21 H. 7. 40. See 8 E. 2. tit Assise 413. A Town had Common of Turbary in a Marsh and divers of the Inhabitants of the Town had made Trenches in the said Marsh and some had not a full Foot of Land in the Town and such persons by their Trenches which they had made there used to carry Turffs out of the said Marsh by Boats and sell them unto the value of 20 Marks per annum to their great private profit and to the great grievance of the others For which cause It was provided by common assent of the Freeholders of the Lord of the said Town That all the Trenches in the said Marsh should be stopped so as from thenceforth no Turffs be carried in Boats by the Trenches And there it was holden That if the greater part of the Commoners assent the same shall bind the others who have not assented for ubi major pars ibi totum And then if such Towns may make Laws a fortiori The City of London Secondly This Law is good by Custom for they have used to make such Acts and Ordinances time out of mind c. and these Customs are confirmed by Act of Parliament and also they may appoint a penalty for to what purpose otherwise should they make an Act Oderunt peccare mali formidine poenae Also this Action is maintainable for an Amercement in a Court Baron an Action of Debt lieth Gawdy Iustice 44 E. 3. 19.
returned the Court cannot mitigate the damages p. 150 A second Writ of enquiry of damages where not grantable p. 177 The Plaintiff in Replevin is Non-suit the Court may assess damages without a Writ of Enquiry p. 213 Debt Lachess in pleading it where turn to his prejudice p. 63 Against the Heir a general judgment shall be given in it against him by reason of his false Plea p. 70 Lyeth not by an Inn-keeper for Dyet and Lodging in the Inn where there is not a price agreed for it certain p. 161 Where must be in the Debet where in the Detinet and of what p. 206 260 Declaration In Trespass against the Defendant Simul cum J.S. Out-lawed ad Sectam Querentis not good p. 202 Where void for the incertainty of the thing demanded by it p. 228 Deeds Of Assignment made to the King out of Term upon a day in Term which is not dies juridicus if good p. 146 Demurrer Difference between drawing up of a Demurrer upon a Plea and upon a Challenge p. 222 Deprivation Where pleadable specially where generally p. 199 Devastavit Executor of an Enfant not charged with a Devastavit made by the Executor of the first Testator p. 241 Devises Construction of them p. 25 181 Words equally divided in it amount to a Tenancy in Common p. 19 Of Rent of Lands towards education of the Son how to be expounded p. 65 Made good by Averment p. 79 Where void by the Statute of 32 H. 8. p. 105 That his Sons in Law shall sell his Lands how to be construed p. 106 Of a possibility where not good nor shall go to Executors p. 195 Of a Messuage cum pertinentiis the Curtilage and Garden passeth p. 214 Distress Upon the Glebe-Lands for Tenths and First-Fruits and where the Lessee of the Cattel shall be distrained for the same p. 259 E. EJectione Firmae De uno Cubiculo good p. 210 Election Where not transferrable over p. 211 Where the Party hath election to take by Grant or Confirmation p. 127 Entry Of a Stranger upon the Farmer of the Kings Lessee for years he hath gained the Term p. 206 Error Matter not within the Record not to be assigned for Error p. 96 If it lieth to reverse a Judgment given for the King without a Petition first sued p. 155 Lieth to reverse a Judgmene in Covenant because all the Covenanters joyned not in the Action though the Covenant was in quolibet qualibet p. 161 Where lieth not in C. B. upon a recovery had before Justices of Assise p. 159 Eviction Where a Decree in Chancery shall not be said a lawful Eviction by which a Condition shall be broken p. 71 Evidence In a Writ of Right the Tenant shall begin to give Evidence because he is in the affirmative p. 162 Evidence given where shall conclude the Party but not the Jurors ad dicendam veritatem p. 209 Executors Where their Distress for the Arrearages of a Rent Charge is good by the Statute of 32 H. 8. of Rents p. 263 Where they might satisfie Debts due upon Judgments before Debts due upon Statutes or otherwise p. 271 Executions Sued forth upon a Statute to A. shall be served before a private Statute to B. though the Statute to B. be assigned to the King p. 239 240 By Capias ad Satisfaciendum sued out within the year though not prosecuted for two or three years after together yet the Party may proceed upon it without a Scire Facias p. 259 Debt is recovered by an Administrator durante minore aetate and Execution had and when the Executor comes of age how the Party shall be discharged p. 278 F. FEoffments Livery and Seisin made by Attorny where good to pass the Lands where not p. 37 Of a Mannor An Advowson Appendant shall pass but not the Services if there be no Attornment p. 193 To divers Persons to the use of his Will and afterwards wills the Feoffees shall stand seised till they have levied 100 l. good although in Feoffees at the time of the Devise p. 262 Fines levied Upon a Release not enure to an use p. 36 Where shall make a discontinuance where not p. 74 Where a Bar where not p. 74 Remainder is limited in tail to J. S. and the Heirs of his Body to begin after the death of the Tenant for life If a Fine be levied by him with Proclamation in the life of the Tenant for life shall bar the Issue p. 211 Where a Bar to a Woman in Dower because she pursued not her Claim within five years p. 221 Forfeiture What shall be a forfeiture within the Statute of 11 H. 7. Lessee for years in debt for rent claimed fee by bargain and sale of his Lessor which was traversed by the Lessor yet a forfeiture p. 169 Forprise Where needful to be mentioned where not p. 93 G. GRants of the King p. 10 Void because the King is deceived in them p. 5 119 Not to enure to a double intent p. 75 By the King of Bona Catalla felonum utlagatorum yet the King shall have the Goods of Felo de se p. 113 Where the Church is void by the grant of the King of the Mannor with the Advowson appendant the Advowson shall not pass p. 196 Of Fines pro licentia concordandi doth not extend to Post-Fines p. 234 How to be construed p. 242 to 253 Grants of common persons Where shall enure by way of confirmation Of all Goods and Chattels passeth a Lease for years Restrained and not to extend to things in future p. 29 Of the Office of Register by a Bishop where good where not p. 30 Of a Rent-charge out of his Lands after J. S. dies without issue of his body J.S. dies having issue which issue dies without issue if a good Grant p. 103 Where the mistaking and misrecital in them shall not make void their Grants p. 136 H. HAbeas Corpus Where granted for one committed to the Marshalsey by the Chamberlain of the Houshold one of the Privy Council p. 194 Heir Where he shall be adjudged in by descent notwithstanding a Devise to him p. 118 Of a Copyholder within age not bound to come to any Court during his Non-age to pray admittance or render a Fine p. 221 I. INdictments Upon the Statute of 8 H. 6. Quare Intravit in unum Tenementum not good for the incertainty but if a Tenementum with divers Acres good for the Acres p. 102 Certified and found to be taken before Justices of Assise and Goal-delivery where not good p. 216 Upon the Statute of 5 El. of Perjury question'd because it wanted the word voluntary p. 230 Against three persons for extortion that they colore officiorum suorum had malitiously extorted excessive Fees good though their offences were several p. 268 Informations Upon the Statute of 5 Eliz. cap. for cutting down of Trees being a penal Law how to be expounded p. 104 Of intrusion upon the Possession of the King
rebuild B. 189. For saving harmless the Defendant must shew how he saved harmless B. 198. Difference where one is to do an act to a Stranger who refuses to accept it and where it is to be done to the Plaintiff who refuseth B. 222. If the words Yielding and Paying make a Condition C. 58. Provided that the Lessee shall not Grant the Land who devised the same to his Executor C. 67. To procure a Grant of the next Avoidandce so as the Plaintiff may present what is a breach C. 151. Upon a Condition to pay Corn the Obligor not bound to seek the Obligee if no place be appointed C. 260 261. Confirmation If one Chapter where there are two may confirm a Lease A. 234. What acceptance and by whom of Rent confirms the Lease of the Tenant A. 243. Tenant for life and he in remainder in Fee joyn in a Feoffment this is the Confirmation of him in remainder C. 10. Abbot and Covent Lease to J.S. at Will and after by Deed for life C. 15. Of a Dean and Chapter of a Bishops Lease in what time it must be made C. 17. Consideration in Assumpsit Assumpsit in cosideration the Defendant will prove such a thing c. when the proof is to be A. 93 94. Past and executed and yet continuing good to make a promise A. 102. B. 111. 224 225. That the Plaintiff will perform an Award the Defendant would perform it also good A. 102. To forbear a Suit in Chancery if good A. 114. B. 105. Of forbearance to sue the Execution of an Infant not good if the Debt were not due A. 114. B. 105. To stay a Suit in Court Christian good A. 118. In consideration of Goods delivered promised to pay the Debt due for them for if no sale no debt A. 157. If there be two if both must be found A. 173 300. B. 71 72. In consideration of the doing of an illegal Act A. 180. C. 208 236. To forbear a Suit ought to shew in what Court the Suit depended A. 180. In consideration of the Plaintiffs promise A. 180. B. 154. What is a good Consideration to make an Assumpsit A. 192 275 276 397. B. 29 30 C. 105 129. Not to execute a Fieri Facias upon Goods good though the Goods were not liable to the Execution A. 220 221. In Consideration the Obligor would pay the Mony the Obligee promised to deliver up his Bond quaere A. 238. Against the Wife of an Intestate in Consideration of forbearance not good unless she administers A. 240. In Consideration of the arrears of Rent-charge for life were unpaid good A. 293. If one of two Considerations be good and the other void yet the Action is maintainable A. 296 300. In Consideration the Plaintiff will assign his interest where he hath none at all B. 71. To forbear per Paululum tempus good C. 200. Where though the Consideration be past and executed being done at the Defendants request yet is good B. 111 224 225. C. 164 236. Ought to be matter of benefit to the Defendant C. 88. 129. Void Consideration per Stat. 23 H. 6. 10. being to let a Prisoner escape C. 208. Where there are two Considerations whereof one is void the whole is void C. 108. Copyhold and Copyholder Relieved by the Lord per Petition in a matter of equity A. 2. Where he shall do Fealty and have Aid of his Lord in Trespass c. and shall have an Ejectione Firme A. 4. How a person absent must make his surrender A. 36. If the Custom be to grant them in Fee it warrants a Grant for life A. 56. An Action in nature of a Dum fuit infra aetatem lies where an Infant surrenders A. 95. Where Statutes speak generally of Lands c. given to the King as forfeited Copyhold Lands are not intended A. 98 99. An Heir by descent may Lease or bring Trespass without any admittance A. 100. And also enter A. 174 175. C. 70. In pleading such Lease it need not be averred to be warranted by the Custom but must be challenged on the other part A. 100. An Heir within age not bound to tender his Fine while within age A. 100. Surrender to a Stranger for life remainder to the right Heirs of the Surrenderer the Heir is in by purchase Secus where an Estate is limitted to the Surrenderer himself A. 101. Surrender to the use of his right Heirs cannot vest during the Ancestors life A. 102. Lord sells and Copyholder releases the tenure is extinct A. 102. Release of a Copyholder to a Disseisor nihil operatur A. 102. What is a reasonable matter to excuse the Tenants not appearing at the Lords Court A. 104. To whom and where notice of a Court day must be given A. 104. Copyhold Estates may be entailed A. 174 175. Such Estate forfeited to the Lord and by him sold by Bill A. 191. Copyholder accepts a Lease of his Copyhold from the Lord this determines his customary Estate A. 170. What Steward may take Surrenders our of or in Court A. 227 228 288 289. Trespass lies by the Tenant against the Lord for cutting down Trees not being Timber A. 272. If the Lords agreement to avoid Admittance makes it good A. 289. A Court to admit Copyholders may be held out of the Mannor A. 289. The mis-entry of the day of holding the Court does not hurt the Copies but may be averred against A. 289 290. No Attornment necessary upon selling a Reversion of Copyhold Lands A. 297. If Tenant at will or sufferance may grant Copies B. 45 46 47. What Estates accepted by a Copyholder from the Lord does extinguish the customary Estate B. 72 73 208. Copyholders Estate not liable to a Rent-charge granted by the Lord B. 109. Secus of Demesnes grantable by Copy B. 153. C. 59. What refusal of a Copyholder to do his service pay his Rent or to make Presentments is a forfeiture of his Estate C. 108 109. What false Pleas Feoffments or Forgeries of Deeds is a forfeiture c. C. 108 109. He who disseiseth a Copyholder gains no Estate C. 221. No Escheat for want of an Heir until proclamation in Court C. 221. A Reversioner may surrender if no Custom to the contrary C. 239. Conspiracy If it lies if the Indictment were void A. 279. C. 140 141. Constable See False Imprison Iustification If he may imprison and how A. 327. Needs not dispute the legality of a Justices Warrant B. 84. May set one in Stocks for refusing to Watch C. 208 209. Continual Claim May be made though the Lands come to the hands of the King A. 191. What is a good Claim to avoid a Fine by the Statute of 4 H. 7. B. 53. Continuance Death of one Defendant after the Assises and before the Term cannot be pleaded for that the Defendant hath no day in Court to plead it C. 5. The difference between it and a dies datus silicet upon a dies datus and default thereupon
Lease cont of Lands proper to the Dean only B. 176. Debt For foreign Mony may be demanded either by Foreign or English Names A. 41. Upon a Recognizance in nature of a Statute A. 52. B. 14. Upon a void Award is good if the Defendant do not shew that part that makes it void A. 72 73. For a nomine poenae A. 110. For a pain set in a Court Leet A. 203 204 217 218. Upon the words Covenant and Grant lieth A. 208. Where it lies before the last day of payment A. 208. For the surplusage of an Account A. 219. Lies by an Administrator against an Executor for Arrearages of an Annuity A. 224 225. Lies upon a Recognizance made before the Mayor of London A. 284. If Debt lies by the Grantee of a Rent reserved by a Lease to which Grant the Lessee attorned A. 315. Under 40 s. in the Kings Bench for Costs in a Hundred Court A. 316. Against an Heir shall be in the Debet Detinet B. 11. Debt lies upon a Judgment or Recognizance although the Plaintiff have Judgment upon a Scire Facias B. 14. For Rent lies although in the Declaration it be alledged that he entred before the commencement of his Lease B. 98. Lies for the Grantee of Post-Fines and for a Nomine poenae by the Heir B. 179. cont A. 249 250. This Action lies not but where a certain sum is agreed on C. 161. Against Baron and Feme for a Debt of the Feme must be in the Debet Detinet C. 206. For Corn in the Detinâ—t and the Plaintiff shall recover the value of the Corn C. 260. Deed. Where the Habend ' may controul the Premisses A. 11 281 318. B. 105. What is a good delivery thereof what not A. 140 152. If a primo deliberat ' or non est factum may be pleaded of a Deed enrolled A. 183 184 C. 175 176. Where in the Premisses of the Deed two things are granted Habend ' the one for years what Estate the Grantee hath A. 281 282. Raisure of a Deed does not avoid it if it be in a part not prejudicial to the party who would avoid it A. 282. Indenture between A. of one part and B. and C. his Wife and their Children A. 287 288. Must be pleaded sealed and delivered or by words tantamount A. 310. In Indentures the intention of the parties may be argued Deeds Poll shall be taken strongest against the Grantor A. 318. B. 47 192. None can take by Indenture but those who are party to it A. 287 288. B. 1. C. 34. The effect and meaning of them regarded where the words are doubtful B. 17 219 151. Where a Deed may have quasi two deliveries B. 192. A Deed once perfectly executed as by enrolment c. cannot pass any thing by Livery C. 16 125. Actual indenting and both parties Seals mentioned to be put makes an Indenture C. 16. Where a Deed in the Premisses leaseth Lands to one Habendum to his Executors and Assigns for 40 years what Estate the Lessee hath C. 32 33 34. The date of a Deed not material C. 100. Demand See Request The King need not demand a Rent to avoid a Lease A. 12. B. 134. C. 125. A Legacy not payable without demand A. 17. Rent payable at Michaelmas or within the space of 12 days prox post aliquod festorum vel dierum when it is demandable A. 142. The difference of demand in a Writ De advocatione duarum partium Ecclesiae duabus partibus Advoc Ecclesiae A. 169. What is demandable in a Writ of Entry A. 169 170. Whether demand at one day for Rent due several days before be good A. 190 191 305. Whether a sum in gross must be demanded as Rent A. 269. The manner to make a demand of a Rent A. 305. He who demands Rent as Attorny need not tell his name nor shew his authority C. 224. Demurrer To Evidence in Ejectione Firme A. 269. All matters well pleaded are confessed by Demurrer C. 200. Upon Demurrer to a Challenge there neeeds no Serjeants hands C. 222. Departure What is what is not A. 32. Count of a Lease without Deed no Departure by Replication to say the Lease was made by Deed A. 156 204. C. 203. Ejec vers 5. One pleads to the Issue the others plead specially no Departure for the Plaintiff to deduce a Title to himself and say that he was seised until by the 4 disseised B. 199. First to make a Title by Common Law and reply a Custom to uphold it is a Departure C. 40. Devastavit What Sheriff may retorn it and what Sheriff is estopped to retorn it B. 67. C. 2. If Executors release a forfeited Bond of 100 l. and receive only 50 l. the whole is Assets C. 53. It is a personal Tort and the Executors of the Executors shall not be chargeable with the first Executors Devastavit C. 241. Devise See Legacy That Executors shall sell Lands who sell by Fine A. 31. C. 119. If such Executors may â—ell by parcels A. 34 60 260. The construction of an Habendum in a Devise A. 57 58. What shall be a Devise in tail for life or in see A. 57 58. B. 69. C. 55. That his Son and an Executor shall take the profits until another comes of Age gives the Son see A. 101. C. 55. To the discretion of the Devisee A. 156 224 283. B. 69. That Executors shall sell a Reversion who sell by Parol yet good and the Devisee is in by the Will A. 148. C. 119. To three Sons and if any die the Survivor to be his Heir how adjudged A. 166 258 259. C. 262. All my Lands and Tenements if it passeth a Reversion after a Lease for life A. 180 181. If by the Stat. of Wills an Estate pur auter vy may be devised A. 252. A Use may be raised by Devise and the Consideration is presumed by Law A. 254 257. If the Devisee die in the life of the Devisor the Heir of the Devisee shall take nothing A. 254. Of Capite Land and Soccage A 267. B. 41 42. C. 267. Vide the Statutes 32 34 H. 8. To A. if she do not Marry Remainder in tail A. 283. That if my Son A. die without Issue that then my Sons in Law shall sell how adj A. having a Son who dies without Issue A. 285 286. Feoffment to the Uses in his Will which deviseth that his Feoffees shall be seised to Uses a good Devise A. 313. That Lessee for years shall hold after the Devisors death for 30 years accounting the Remainder of the first Term how adj B. 33 34. Devise to A. may be helped by Averment B 35. C. 79. To the Father and his eldest Issue Male B. 35. Things individual cannot be devised within the Statute of Wills If part be Soccage and part Capite B. 41 42. That his Lands shall be sold for payment of his Debts the Executor shall sell 43 220. Devise that his
and when Notice must be given to a Patron of a Voidance A. 32. C. 46 47. Where necessary to perfect an Assumpsit A. 105 123. Where Notice of a Surrender of a Lease must be given to him who hath the subsequent Estate C. 96. Nusance See Action sur case Where an Action lieth for stopping of new made Lights where not A. 168. Action on the Case lies for it by Tenant of the Freehold although he may have an Assise C. 263. B. 184. A. 247. Con. C. 13. Where it lies for turning a Water-Course from a Mill new erected on an old Foundation A. 44 45. Every continuance thereof is a fresh Nusance B. 103. C. 174. The difference of exaltare erigere stagnum in such Actions B 180 181. It is enough to say obstupavit viam without shewing how C. 13. For stopping a Water Course so that the Plaintiffs Land was drowned C. 174. O. Obligation GOod without words Obligatory or In cujus rei testimonium A. 25. C. 119. To perform Covenants If the Deed be void the the Obligation is single A. 282. Obligation to pay Mony within a Mannor where J.S. hath bona felonum if the Obligee be attainted J.S. shall not have the Debt B. 56. What words in the Condition make the Obligation void by 23 H. 6. cap. 10. B. 78. With a Condition against the Law is void Cont. if the Condition be only impossible B. 189. Conditioned that one shall not use his Trade in such a Parish is void B. 210. One is bound for the faithful Service of an Apprentice A Release made to the Apprentice is a discharge of the Bond C. 45. Where a Bond is I am content to pay Debt or Covenant lies C. 119. What Bond is joynt what joynt and several C. 206. Bond taken of one not bailable is void per Stat. 23 H. 6. C. 208. Obligation in ten Pounds to be levied by the Obligee of the profits of a Baillwick yet the Obligee may bring Debt C. 223. Made in France may be sued here C. 232. Occupancy Who shall be a special Occupant A. 310. C. 36. He who disseiseth Tenant pur auter vy who dies is a dispensor still and no occupant B. 121. None shall be an occupant but he in possession C. 36. It it shall be of a Use pur auter vy C. 35. Offices and Officer If a Steward of a Court may be deputed by Parol without Deed A. 228. What other Officer may be so deputed Ibid. Of what Office an Assise lieth Ibid. Vicar General of the Spiritualty Chancellor of A. Bishop what A. 312. The Office of Marshal of the Kings Bench and Marshal of England and who hath the Grant of them A. 320 321. If an Office ministerial may be granted in Reversion by any but the King C. 31 32. Office for the King. What Lands or Chattels shall be in the King by Attainder without Office found A. 21. B. 122 to 126 135 to 139 206 207. Or by alienation without licence A. 40. B. 126 135. C. 175. Must be pleaded under the Great Seal A. 65. To what purposes an Office is good not finding who is Heir Ibid. Upon Extent of Lease for years must find the certainty of the Term. B. 121. C. 204. In what case it may be traversed B. 122 to 126 187. C. 185 to 191. What Lands shall revest in the King by a Condition of re-entry before Office found of the Condition broken B. 134 to 145. C. 125 127. What a Common cannot have but by re-entry the King shall not without Office found B. 137. Of what force an Office is which is found after the King hath granted away all the Estate B. 138 to 145. C. 125 126 127. Upon assignment of a Debt to the King the Office must find but Goods since the Assignment C. 197. The Ter-Tenant shall not render recompence to the King for the profits of the Lands before Office found C. 242. P. Pardon IN what case a general Pardon not to be regarded unless specially pleaded A. 300 301. B. 28. Where the Kings General Pardon will not avail without words of Giant B. 123 124. C. 186 187. Parson and Patron What a Vicar is A. 182. They and the Ordinary joyn in a Lease of the Gleab if this bind the Successor A. 234 235. What an Arch-deacoury is A. 316. Partition Between Tenants in Common and Joynt-Tenants where good where bad without Deed A. 103. The form of the second Judgment A. 280. B. 50. Against whom it must be brought A. 291. If it may be made of a Use B. 25 26 27. The pleading thereof B. 24. What part is void what only voidable B. 25 26. Form of the Writ and where it must shew de qua haereditate B. 118. C. 231. If it lies by a Corporation upon the Stat. 32 H. 8. C. 162. Patent See Grant of the King. Perjury See Stat. 5 Eliz. May be punished at Common Law though the Jury give a Verdict against the false Testimony C. 170 230. Petition of Right See Monstrans Plaint In all Inferior Courts there ought to be a Plaint entred before the Defendant be summoned A. 185 186 302. Pleading and Pleas. Vide Bar and Iustification Of a Lease at will it 's good to aver the life of the Lessor A. 14. Of an Averment that the Rent c. was parcel of a Mannor A. 15. Of a Fine and Non-claim not needful to aver Infra Regnum sanae memoriae c. A. 18 76. What things must be shewed by the Plaintiff to enable his Action or must be pleaded by the Defendant A. 18 76 131 306. B. 5. C. 40 41 42 43. Of a Recovery in an Affise in Bar to Trespass A. 24 193. That a Rectory was appropriated to a Colledge A. 38. The Election of a Bishop Ibid. Where Ne unques accouple c. shall be pleaded and where Non fuit uxor A. 53. B. 170 171. Of an Utlary to entitle the King A. 63. Where Nient damnify is a good Plea to an Award which was That the Defendant should discharge and save the Plaintiff harmless from a Bond A. 71. The performance of a Condition to convey the Defendant must shew by what Conveyance c. A. 72. Of a Fine with Proclamation upon the Statute of 4 H. 7. 1 H. 3. and 32 H. 8. A. 76 77 78. Of an Agreement to an Estate Legacy c. A. 129. What matter ought to be shewed by the party who pleads or to come in on the other side A. 18 76 100 131 306. B. 5. C. 40 to 43. Of performance of a negative Covenant A. 136. To two Bars there must be several Replications or Demurrers A. 139. Of a Bargain and Sale must alledge a Consideration A. 170. Where it is not necessary to shew the beginning of a particular Estate nor to aver the life of Tenant for life A. 66 139 176 255. B. 50 94 95. Of a Recovery in a real Action it must be shewed that the Tenant was
68. Who shall have the priviledge of the Exchequer and who not B. 146. Where the priviledge of Attornies of the Courts in Westminster is preferred before a Custom of London B. 156 166 167. How the Warden of the Fleet must be sued in the Common Pleas B. 173. No priviledge by Writ out of the Exchequer for one of the Kings Houshold C. 223. Prohibition For that the party hath remedy by the Common Law A. 10. Prohibition as to part Quatenus non agatur c. A. 20. To the Spiritual Court upon suit there for a Legacy suggesting that the Testator was indebted to the Executor Ibid. Lies not upon surmise that Mony ought to be paid to the Parish Clark in lieu of Tithes A. 94. Lies not where the doubt is only Cui solvendae A. 94 128. C. 203. It seemeth the contrary C. 265 Lies not upon surmise that the Parson hath used to take the Corn growing upon every tenth Land for the Custom is unreasonable A. 99 100. Cont. B. 70. Attachment sur Prohibiton upon the Parsons Libelling de novo for the same cause A. 111. In Attachment sur Prohibition it is Error if the Count vary from the Suggestion A. 128. Upon a Suit in Court Christian for not bringing in an Inventory A. 129. For the Plaintiff in Court Christian to stay the adjudging of Costs there against him A. 130. Where Prohibition lies and upon what composition with the Owner or Rector A. 23 151. B. 29 73. C. 257. If the suggestion be apparently vicious the Court does over-rule it and not put the Defendant to demur A. 181. To stay a Suit for a Legacy given in satisfaction of Dower upon a mutual Agreement A. 235 236. Lies upon suggestion that the Lands are discharged as they were in the hands of a Prior c. A. 240 241 331 332. Consultation quoad part of a Legacy and quod non agatur de validitate facti A. 278. Lies against the Kings Farmor A. 286. Prohibition must be several if the Libels be several Ibid. The suggestion may be given into Court by Attorny Ibid. Lies upon surmise that there not being sufficient Herbage for the Cattle of the Plough the Owners have used to depasture in green Tares Tithe-free B. 27 28. Consultation granted to the Spiritual Court for calling one Witch and Inchantress B. 53. Lies upon surmise that the Owners have used to have the Hay on the Balks for cutting down the Corn B. 70. Lies upon surmise that the Lands where the Cistertians and the Plaintiff is immediate Farmer to the King B. 71. Upon refusal of a Plea in Court Christian B. 101. If the Spiritual Court call in question the right of Presentation Prohibition lies B. 168. If Prohibition lies upon surmise that the Parson who sues for Tithes is deprived B. 212 213. Prohibition granted for that the Spiritual Court refused to take a Plea that the Plaintiff there was not Incumbent C. 265. Proof Where an Act is to be done upon proof generally how it must be done and when A. 256. B. 215. What suggestions must be proved per Stat. 2 H. 6. B. 212 213. C. 257. Property What kind of property the Lessee hath in the Trees A. 49. What bailment shall alter the property of Goods what not B. 30 31. C. 38. If the property of a Deer be lost by his going forth of the Park B. 201. C. 219. What property one hath in a Greyhound Conies c. C. 219. Protection In Debt Quia in obsequio Regis A. 185. Quia profecturus with the Kings Officer into Scotland C. 20. Q. Quando duo Jura concurr in uno aequum est ac si essent in diversis If one Man be Coroner of Middlesex and of the Verge if he may take an Inquisition per Stat. Artic. super cart cap. 3. Where a thing is to be done by a Bishop and a Judge and one is both if c. B. 160. Quare Impedit See Stat. 25 E. 3. 7. Bar by a Bishop for Lapse A. 31. Against whom it must be brought A. 45. Brought by the Queen for that the Patron is Utlawed A. 139 201. If the King shall recover Damages post tempus Semestre per W. 2. cap. 5. A. 149 150. Where the Seisin in Gross Appendency or the Presentation are traversable A. 154. For Executors and the form thereof A. 205. Of what it lies Ibid. What Presentments shall put the King to his Droit de Advowson what not A. 226. C. 17 18. The difference between a Collection and Presentment as to making a Plenarty A. 226. Plenarty no Plea against the King Ibid. What is good cause for the Bishop to refuse a Clerk A. 230. What makes a disturbance in the Bishop A. 230. Tenant for life need not Count of a Presentment in the Tenant in Fee-simple Ibid. The Patron must not of necessity be named in the Writ B. 58. In what case a Jure Patronatus lies B. 168. If the Ordinary be not at leisure to examine the Clerk and the Clerk comes again ten days after and in the interim the Lapse incurs C. 46 47. Whosoever be admitted pendente placito unless by the Title of one paramount the Plaintiffs Title must be removed C. 138 139. If the Plaintiff claim to present by turn if he must shew how the Estate commenced C. 163 164. If the Bishop pleads that he claims nothing but as Ordinary if he must joyn in a Writ of Error C. 176. If the Ordinary refuse a Clerk he must make a certain retorn of the Cause C. 199 200. Quid Iuris clamat See Attornment If the Tenant may appear by Attorny or must do it in person A. 290 291. Attornment thereupon saving his Term for years B. 6. C. 22. What execution is awarded thereupon to force the Defendant to attorn B. 40. C. 241 242. Who are compellable thereby to attorn A. 290 291. B. 40. C. 241 242. For the Grantee of one Coparcener C. 6. Quo Warranto No plea thereto to say that a Stranger hath such Liberties B. 28 212. The King thereby gains nothing but only redresses an Injury C. 72. Of what Liberties it lies C. 184. How to plead non usurpavit Libertates Ibid. R. Ravishment de Gard. BY the Plaintiff as Prochein Amy A. 111. Recital Mis-recital in a Deed that leads the uses of a Fine C. 135 136. In Articles of Agreement that the Lessor was possessed by lawful Title binds to performance A. 122. Want thereof in the Lease of the King A. 12. Stat. 6 H. 8. 15. A. 12 321. C. 5 6 242 243 244 to 250. A void Lease or one expired needs not be recited in the Kings Grant C. 243 244. Recital in Patents ought to be very strict C. 246 247. No recital necessary where the second Patent determines the first C. 247. Recognizance Cannot be taken by any by prescription A. 131. Upon Recognizance by Custom in London Debt lies only in their own Courts A. 130 131. If a Capias
Commission Court A. 176 177. 1 El. Of Leases in reversion by Bishops c. A. 148 159. 1 El. Of administring the Sacrament A. 295. 5 El. cap. 2. Of Tillage A. 274. 5 El. cap. 8. If the Defendant cut down Timber and make Laths to sell C. 104. 5 El. 9. To force Witnesses to appear by Subpoena A. 122. 5 El. Of Perjury lies only for the party grieved B. 12. C. 68 78. An Action lies though the Defendant do not depose directly to the Issue but to encrease Damages B. 198. No Action lies for a false Presentment in a Leet C. 201. 8 El. 2. Of Costs A. 105. 13 El. 5. Of Fraudulent Gifts A. 47 308. B 9 223. 13 El. 12. Of making Ministers A. 230. 13 El. 20 Of Leases by Parsons c. C. 102. 13 El. 4. Of Debts due by Accomptants c. to the King extends not to Copyholds A. 98. 13 El. 10. Of Leases by Colledges c. A 307 330. 18 El. 10. Of the same matter A. 307 333. 14 El. 8. Of Recoveries by Tenant for life B. 60 61 62 63. 18 El. 14. Of Jeofails A. 30 31 175 329. Doth not remedy want of an Original in some cases A. 30 31. If it aideth the want of an Attornies Christian Name A. 75. 14 El. 11. Of Leases made by Curates A. 100. It aideth the want of 15 days between the Teste and retorn of the Venire facias A. 329. If it aideth the want of producing a Deed in Court B 74. 18 El. Which gives Costs against an Informer in popular Actions extends not to the party grieved if he sue B. 116. 23 El. c. 1. Of Recusants who perswade others to Popery A. 239. Upon the branch of it for not coming to Church A. 241. B. 5. 27 El. 5. Of Jeosails A. 44 80 193 238. 27 El. 6. Of Challenges A. 55. 27 El. 5. Of special Demurrers A. 311. 23 El. c. 1. Of Recusants what Fraudulent Conveyances shall not evade that Law B. 132. 18 14 El. 11. What Leases are within that Statute B. 188. Statutes How far a Statute in the affirmative shall alter a former or change the Common Law A 76. B. 160 161. C. 215. The like of a negative Statute A. 323. What Statute must be pleaded what not A. 307 308 309 333. Who may avoid Conveyances made voidable by Statute A. 308. A Statute which concerns the King his Revenue is always held no private Statute A. 333. Statutes bind the King he being party to them B. 51. Where Statutes shall be taken by Equity and not by the express words B. 90 91 160 161. Where very strictly and literally B. 148 149 161. A Statute gives power to one to make Leases for 21 years If he may make Leases in reversion C. 131 to 135. Private Statute shall be construed strictly C. 133. Where an Action is given by a Statute which was before at Common Law the Plaintiff may choose which way to proceed C. 140 141 170. Steward If the Steward of a Court-Baron deputed by Parol may make surrenders out of Court A 228. If he may be made without Deed Ibid. If an Assise lie of his Office Ibid. If he may make a Deputy and that Deputy depute another A. 288 289 290. If he may be discharged by Parol and lose thereby his Fee B. 76. Subpena In the Common Pleas upon an Information C. 48. Surety of the Peace If a voluntary Escape from a Constable be a breach of the Recognizance B. 166. Suggestion See Proof Supersedeas In Dower Rege inconsulto A. 284 285. To stay a Tryal by Nisi prius quia erronice c. B. 167. Surplusage Where it shall make void a Writ where not A. 73 153. Where it shall not hurt in a Verdict See Verdict B. 100. C. 86. Where in pleading B. 102. C. 86. Where all after a Videlicet is void and Surplusage and doth no hurt B. 102. Surrender What words amount to a Surrender A. 178 280 B. 50. C. 224. One Tenant for years cannot Surrender to anothere Tenant for years A. 303. If a second Lease made to the same Lessee by Gardian in Soccage be a Surrender A. 323. The like of the Lessors Lease B. 188. What Acts which are no Surrender may determine a Lease A. 322 323. Pleading thereof C. 96. Acceptance of what second Leases is a Surrender in Law of the first C. 244. Survivor Where the surviving Obligee brings an Action he must declare specially A. 322. Where a Gift in tail was made to two the Heir of the Survivor must bring a Formedon solely C. 14. Does not hold place betwixt joynt Merchants C. 264. Suspension See Extinguishment T. Tail. TEâ—ant in tail Covenants to stand seised to the use of himself for life remainder to his Son in tail quid operatur A. 212. If a Gift to J.S. primogenito filio haeredi be a good Estate tail A. 212 213 214. What are good words to make such Estate Ibid. B. 11 25. C. 5. In a Will B. 35. C. 55. After possibility of Issue extinct the priviledges thereof A. 290 291. B. 40. C. 241 242. Cannot begin in futuro B. 11. Tenant in tall post prolem suscitatam is dispunish for Wast B. 66. And after Common Recovery suffered may alien B. 66 67. The Issue of Tenant in tail barred by a Fine though the Reversion be in the King C. 57. Lessee of Tenant in tail shall hold his Lease free from a Statute acknowledged by the Lessor before the Lease C. 156. Tenant for Life See. Forfeiture Tenant at Will and at Sufferance Who is accounted Tenant at Will and who Tenant at Sufferance B. 45 46. C. 233. Who Tenant at Sufferance or a Disseisor C. 152 153. Tenant at Will shall have aid and a release to him is good Secus of a Tenant at Sufferance B. 47. C. 152 153. No Tenant at Sufferance to the King B. 141 143. If the Lord admits a Stranger he is but Tenant at Will of the Copyhold C. 210. Tender uncore prist Where a Condition is to pay 20 l. or to deliver Cows at the choice of the Obligee the Obligor must tender both A. 68. Where a Touts temps prist c. may be pleaded without a Tender and where a Tender without a uncore prist c. A. 71. What is a good Tender of a Rent to prevent a Re-entry B. 130 131. C. 4. What is good upon a Mortgage what not B. 213. Tenure What shall be a Tenure la Capite what not A. 66. By Knight-Service of the King A. 157. Testament What is a good Will in writing A. 113. B. 35. C. 79. Who may make a Will who not A. 326. Shall be construed favourably that all parts if possible of the words may be satisfied B. 42 43. Time. How six Months shall be accounted as to a Lapse A. 31. C. 46 47. Condition to pay the 29 Feb. not payable until a Leap year happen A. 101. The time in trespass
Gravenor and Parker 3 4 Mar. Dyer 150. A Lease was made to A. for life by Indenture and by the said Indenture a Proviso was That if the Lessee died within the Term of 60 years then next ensuing that then his Executors should have it in right of the Lessee for so many of the years as should amount to the number of 60 years to be accounted from the date of the Indenture And it was holden That the secondary Interest to the Executor was void And that the words concerning the same went only in Covenant CCXLV The Lord Compton's Case Trin. 29 Eliz. In the Common Pleas. 2 Len. 211. Kellow 41. 4 Inst 85. NOte It was holden by the Lord Anderson Chief Iustice in this Case That if Cestuy que Use after the Statute of 1 R. 2. Leaseth for years and afterwards the Feoffees Release to the Lessee and his Heirs having notice of the Vse that that Release is to the first Vse But where the Feoffees are disseised and they Release to the Disseisor although that they have notice of the use yet the same is to the use of the Disseisor And no Subpoena lieth against the Disseisor See 11 E. 4. 8. CCXLVI Sir Thomas Gorge and Dalton's Case Trin. 29 Eliz. In the Common Pleas. SIr Thomas Gorge and the Lady Helene his Wife brought a Quare Impedit against Francis Dalton Who pleaded That the Queen was seised of the Mannor of D. to which the Advowson c. was appendant and so seised the Church became void And that afterwards the Queen granted the said Mannor with the Advowson to J.S. who presented the Defendant It was the clear Opinion of the Court That by that Grant of the Queen the Advowson did not pass although that the King by his Prerogative may grant a thing in Action Quod vide Dyer 13 Eliz. 300. against F.N.B. 33 16 H 7. CCXLVII. Hill. 29 Eliz. In the Common Pleas. A Copyholder with the leave of the Lord Leased for years 1 Len. 297. Hob. Rep. 177. and afterwards surrendred the Reversion with the Rent to the use of a stranger who was admitted accordingly It was moved If in this case there needed any Attornment either to settle the Reversion or to create a privity It was holden in this Case by Rhodes and Periam Iustices That the surrender and admittance ut supra are in the nature of an Inrollment and so amount to an Attornment or at the least do supply the want of it CCXLVIII Carter and Marten's Case Mich. 29 Eliz. In the Kings Bench. TWo Men made an Obligation joyntly for Debt The principal in the Obligation made him who was surety only for him in the said Obligation for payment of the Mony his Executor who payed the Mony generally And whether it shall be said that he paid it as Executor or as an Obligor was a Quaere not resolved by the Court. CCXLIX Mich. 29 Eliz. In the Exchequer A. Was endebted to B. who was endebted to the Queen B. assigned his Debt unto the Queen By all the Barons Process shall be awarded out of the Exchequer to enquire what Goods A. had at the time of the Assignment and not what he had tempore Scripti praedict facti c. CCL Hill. 30 Eliz. In the Exchequer A. Was accomptable to J.S. and afterwards J.S. was Out-lawed in an Action personal A. died The Queen by her Letters Patents granted unto B. omnia bona catalla exitus proficua forisfactur advantagia quaecunque which came to her or accrued by reason of the Outlawry of the said J.S. And now B. brought an Action of Accompt against the Executors of the said A. as Executors of their own wrong The Defendants pleaded That they had Letters of Administration committed to them by the Ordinary and demanded Iudgment of the Writ The Plaintiff in maintenance of his Writ Replyed That the Defendants did Administer of their own wrong before that Administration was granted unto them Vpon which the Defendants did demur in Law. It was the Opinion of some of the Iustices That the wrong is urged by taking of Letters of Administration and now they are to be charged as Administrators only and not otherwise See 50 E. 3. 9. 20 H. 6. 1. And see the Case of the Cardinal of Canterbury 9 E. 4. 33. If one Administreth of his own wrong and afterwards takes Letters of Administration he shall be sued not as Executor but as Administrator See 21 H. 6. 8. But Gawdy Iustice conceived That the Defendants might be charged as Executors As to the Grant of the Queen of this Action of Accompt See Br. Pat. 98. 32 H. 8. that the King may grant a thing in action which is personal as debt and damages or the like Or a thing mixt as the Wardship of the body but not a thing real as an Action concerning Lands Rights Entries But it was agreed on all sides That if this Action had been granted specially it had been clearly good And it was Observed That in the principal Case the Accomptant was dead before the Grant so that his Executors were chargeable to the Queen to render an Accompt and the Queen was entituled to it It hath been Objected That this Action of Accompt came to the King by reason of his Prerogative Royal and in vertue thereof the Executors are accomptable to her and therefore the Queen cannot grant the same over to a Subject Certainly the same is not an Incident inseparable from the Crown nor a Flower of the Crown as the King cannot grant over to a Subject power to pardon Felons for that is proper and peculiar to the person of the King nor that a Subject may have a Court of Chancery And although this matter of Accompt is at the first i. e. at the time of the Grant uncertain yet by matter ex post facto it may be reduced to certainty i.e. by the Accompt and although the Accompt be not expresly named in the Letters Patents yet the words of the Grant ut supra do amount to as much And Gawdy Iustice conceived That this Accompt ought to be brought in the name of the Queen And all the Iustices were of Opinion That if the said A. had been living at the time of the said Grant of the Queen the Grant had not been good for then the Action against the Executors which is the matter of Prerogative had not been vested in the Queen CCLI Specot's Case Mich. 30 Eliz. In the Common Pleas. 5 Co. 57. HUmphry Specot and Elizabeth his Wife brought a Quare Impedit against the Bishop of Exceter c. of the Church of Tedcole in the County of Devon The Bishop pleaded That the Plaintiffs presented to him one John Holmes quem super Examinationem invenit Scismaticum inveterat ' and so non habilem to be instituted vel ad acceptandum aliquod Beneficium cum Cura Animarum for which he refused him and of such Refusal gave notice to