a restraint against any particular person in certeine Vpon a Feoffement without warranty the Feoffee shall have all the Charters which comprize warranty and others though they be not given to him because hee is to defend the Title at his perill Upon a Feoffement with warranty without expresse grant the Feoffee shall not have any Charters which serve for to deraigne the warranty paramount Also the Feoffer shall have all Charters which serve for maintenance of the Title but the Feoffee shall have all which maintaine the possession as Court Rolls and which are concomitant and incident to the possession If A. be seized of a Segniorie rent advowson or other thing that lyeth in grant and grant the same over unto B. with warranty and B. grant that to C. with warranty In this case C. shall have the first deed although B. be bound to warrantie for without that he cannot make any Defence against A. or any claiming by him Pelhams Case 32. El. fo 14. A Tenant for life the remainder in Taile the remainder in fee bargaines and sells the Land to one who before the Statute of 14. El. ca. 8. suffers a recoverie in which A. is vouched and voucheth over and he in remainder enters and the entry is adjudged lawfull for the Recovery is a Forfeiture and the remainder may enter for it is the common Assurance As if Tenant for life had levied a Fine c. and suing of execution doth not toll the entry of the remainder and a Writ of error was sued and the plaintiffe release the errors Porters Case 35. El. fo 22. 32. H. 8. P. devised a house to his wife and her heires upon condition that she by advise c. with all convenient speed after his death should assure it c. for maintenance of a Free School c. for ever and dyes 32. H. 8. the wife enters and 3. E. 6. leases to A. for yeares the heire of P. enters and his entry adjudged lawfull because 23. H. 8. extends not to good uses nor doth it make the conveyance voyd or give entry but makes the use voyd and admit the use voyd yet the condition is not for Counsell may devise c. as to have a Corporation by Pattent and licence to assure and therefore the wife ought to have performed it Any man at this day may give Lands Tenements or hereditaments to any person or persons for the finding of a Preacher maintenance of a Schoole maimed Soulders poore people reparation of Churches High-wayes Bridges marriage of poore maids or any other charitable uses But it is good policy in every such Feoffment or estate to reserve to the Feoffor and his heires any small rent or to expresse some small summe of money for the consideration of the cause before recited Altonwoods Case 42. Eliz. fo 41. H. 8. seised of an estate Taile to him and the heires males of his body and of a Fee expectant grants in Taile and dyes without issue male adjuded that the grant is voyd for the King had an estate Taile in possession by which he might grant a lawfull estate for his own life and a Fee by which he might grant an estate Taile by speciall recitall And these words ex speciali gratia c. shall not produce a strainable construction against the rules of Law or in deceptionem regis Capells Case 23. Eliz. fo 62. A Tenant in Taile the remainder to B. in Taile B. grants a rent charge A. suffers a common recovery and dyes without issue the grantee distraines the Alienee of A. brings a Replevin adjudged for the alienee by all the Justices of England that a common recoverie against a Tenant in Tayle shall binde not onely the remainder and all Leases charges c. granted or made by him in remainder but also the Reversion and all Leases charges c. granted by him in reversion Archers Case 39. 40. Eliz. fo 66. LAnd was devised to the Father for life the remainder to the next heire male of the Father and to the heires males of his body the devisor dyes the Father infeoffes J. S. with warranty First it was resolved by Anderson and Walmeslowe et tot Cur. that the Father had but onely an estate for life for that he had an expresse estate for life demised unto him and the remainder is limitted to his next heire male in the singular number and his right heire male may not enter for the forfeiture in his life for he cannot be heire so long as he liveth Secondly It was resolved that the remainder to his right heire is a good remainder although he cannot have a right heire during his life but it sufficeth that it vesteth eo instanti that the particular estate determineth Dyer 14. Eliz. fo 309. Thirdly it was resolved which was the principall poynt in this case per tot Curiam that by the Feoffment of the Tenant for life the remainder was destroyed for every contingent remainder ought to vest either during the particular estate or at the least eo instanti that the particular estate determineth for if the particular estate be ended or determined in Deed or in Law before the contingency fall the remainder is voyd And in this case by the Feoffment of the Father his estate for life was determined by condition in Law which cannot be revived by any possibilitie for this cause the contingent remainder is voyd for by the Feoffment no right of the particular estate remaineth and the better opinion was that the warranty bindes the remainder though in Abeyance Bredons Case 39 40. Eliz Fol. 76. TEnant for life and the remainder in Taile joyne in a fine Come ceo c. to A. who renders a Rent charge of 40. l. a yeare to Tenant for life the remainder dies without issue the second remainder in taile enters Tenant for life distraines for the Rent adjudged he may and that the rent remaines after the death of Tenant in taile without issue during the life of Tenant for life the fine was no discontinuance for every one gave that which he might lawfully give and t is no forfeiture by Tenant for life for the Law construes this First to be a grant of him in remainder and after the grant of Tenant for life Vt res magis valeat c. If Tenant for life and the first remainder in Taile make a feoffement t is no discontinuance though the first remainder in taile dies without issue nor is it a forfeiture but the feoffee shall hold it during the life of Tenant for life but if it be without deed then t is a surrender of Tenant for life and the feoffement of the remainder Vt res magis valeat c. Corbets Case 42. Eliz Fol. 84. of Perpetuities C. Covenants to stand seised to the use of himselfe for life and after to the use of A. his Eldest Son and the Heires Males of his body the remainder to the use of B. his second Son and the
estate shall be voyd upon tender of 10. l. Tenant in taile suffers a Recovery to the use of himselfe and his heires after the remainder tenders the ten pounds c. Resolved the remainder to the Queene was voyd 1. Because the grantee for life of tenant in taile tooke nothing for 't is a voyd grant for the grantee shall never have any benefit by it but such a grant of a reversion were good for he shall have the services but a lease for life of J. S. the remainder to J. H. for life of J. S. is good for this may take effect by forfeiture of tenant for life and remainder dicitur quasi terra remanens which cannot be here and the remainder must take effect when the particular estate ends vana est illa potentia quae nunquam venit in actum And the possibility for tenant in taile to enter in Religion shall not make the remainder good because 't is remote and it ought to be a common propinqua possibilitas which shall make the remainder good as death coverture dying without issue remainder to a Corporation which is not in esse is voyd though such be erected during the particular estate 2. Because the Law will never adjudge a grant good by reason of such a forraine possibility for 't is potentia remotissima vana and by intendment nunquam venit in actum 3. Because the remainder being tenant in taile granted all his estate for the life of tenant in taile so that there is no remainder left in the grantor but in such case the estate taile is in abeyance Blithmans case 35. of the Queene agreed tenant in taile covenants to stand seised to the use of himselfe for life and after to his eldest Sonne in taile the remainder to the Sonne is voyd for when he had limitted the use to himselfe for his owne life 't was as much as he could limit by Law Resolved admitting the remainder good to the Queene that the common Recoverie hath barred the estate of the first grantee and so the condition during his life for 't is out of the Statute of 34. H. 8. being not of the gift of the Queene c. as Wisemans case is before adjudged A revertioner upon an estate taile grants upon condition a Recovery barres the reversion and condition and as Capels case is before adjudged if the reversionor or he in remainder grant a Lease c. and tenant in taile suffers a recovery the possession shall never be subject to such charges Resolved that the payment to the first grantee cannot devest the remainder out of the Queene 1. Because the condition during the life of the first grantee was discharged 2. Because he that takes benefit of a condition ought to have the intire estate with which he departed which cannot be here for the estate of the first grantee was barred by the recovery 3. The tender to the first grantee was to the intent for to revest his estate which cannot be because 't was barred and therefore the payment cannot devest the remainder out of the Queene Buckleys Case 40. Eliz. in Communi Banc. fo 55. TEnant for life the remainder in Fee tenant for life maketh a Lease for foure yeares in March 20. El. the Lessee entreth tenant for life granteth the tenements aforesaid to C. to hold from the feast of Saint John Baptist next ensuing for life after the said Feast the tenant for yeares attornes the yeares expire C. enters and maketh a Lease at will to D. to whom the tenant for life levieth a Fine he in remainder in Fee entereth and maketh a Lease to Buckler the tenant at will entreth upon him and Buckler the plaintiffe bringeth an ejectione firmae and judgement was given for the plaintiffe In this case divers things were resolved First that the grant to C. was voyd for the Law maketh construction upon the whole grant and an estate of Free-hold may not commence in futuro The office of the premisses of a Writing viz. Feoffment Lease c. is to expresse the grantor the grantee and the thing granted And the office of the habendum is to limit the estate so that the generall implication of the estate which should passe by the premisses is alwayes controlled and qualified by the habendum as a Lease to two habendum to the one for life the remainder to the other for life here the generall implication of joyntenancy is altered and the habendum is not contrary to the premisses for in the premisses no certaine estate is passed and the grant being voyd at the beginning the attornement after Midsommer shall not make the reversion to passe For quod ab initio non valet tractu temporis non convalescet Resolved that when the grantee entered by colour of this voyd grant he was a disseisor but when the grant is good at commencement but is to have its perfection by an act subsequent as livery or attornement and the grantee enters before the perfection c. he is not a disseisor but a tenant at will And if the Fine had been levied to the disseisor come ceo c. He which had the right of the remainder might enter for a forfeiture for a right of a particular estate may be forfeited and entry given to him who hath but a right Resolved the Fine being levied to tenant at will 't is a forfeiture and he which hath the right of the remainder may enter and the tenant for life and at will shall be estopped to say quod partes Finis nihil habuerunt and of such estoppells which are by matter of Record and trench to the dis-inheritance of those in reversion c. they shall take advantage though strangers to the Record for they are privies in estate A disseisee levieth a Fine to a stranger the disseisor shall hould the Land in this case for ever for the disseisee against his owne Fine may not claime the Lands and the counsee may not enter for the right which the conusor had may not be transferred to him but by the Fine the right is extinct whereof the disseisor may take advantage Beckwithes Case 27. Eliz. fo 56. IF the husband and the wife levie a fine of Lands whereof they are seised in right of the wife and the husband solely declare the use of the fine this declaration shall binde the wife if her disascent doe not appeare although her assent to the limitation of the uses doe not appeare for it shall be intended if the contrary doe not appeare that she joyned with him also in the declaration of the uses of the fine But if the husband declare one use and the wife another use they are both voyd the declaration of the use insues the ownership of the land for the one viz. the wife is not sui juris sed sub potestate viri and hath the estate of the Land and the husband is sui juris and hath not the estate and if a
fine be reversed by nonage of the wife all the estate shall be restored to the wife presently for all the estate passed from her by the fine and so it was adjudged Banco regis in Worseleys case Resolved that though the variance of the limitation be onely in one estate and they agree in all the other yet all is voyd But if two joynt tenants or two having severall estates vary 't is good for every of their parts and shall be directed by their interests but if the variance had been in limitation of part of the land and they had agreed in the use it should be voyd for that part and good for the residue Note That though the husband might dispose of the land during coverture yet for the cause aforesaid his declaration was voyd If A. tenant for life and B. in reversion or remainder both levie a fine together generally the use shall be to A. for life the reversion or remainder to B. in fee for either of them grants that which lawfully he may grant and either of them shall have the use which the Law vesteth in them according to the estate which they would convey over Winningtons case 40. of the Queene fo 59. W. Infeoffed B. upon condition to regive to the Feoffor for life the remainder to J. Sonne and heire of the Feoffor the Feoffor enters and takes the profits without agreement or contradiction of the Feoffee and leases to D for 21. yeares and yet continues possession the Feoffee acknowledges a Statute to J. the Feoffor makes a feoffement to the use of himselfe for life the remainder to his second Sonne in taile c. and dyes the Feoffee enters and infeoffes the Sonne and heire upon which the second Sonne enters c. Resolved that though the intention was that the Feoffee should make an estate to him for his life when he hath entered without agreement of the Feoffee 't is a disseisin and the rather because as owner of the land he tooke upon him to make a Lease for yeares Resolved that by the Lease by Indenture he hath dispensed with the condition during the terme Resolved that when the Feoffor disseises the Feoffee upon condition and the Feoffee acknowledges a Statute c. This is no disability to cause the Feoffor to enter for the right of the Feoffee is not subject to the Statute but when the Feoffee in possession takes a wife grants a rent or acknowledges a Statute the land is presently subject c. And though upon entry he may be disabled yet till then he is not because the wife may dye or the Statute be released and then he may enter and performe the condition and the Feoffor by his feoffement hath extinct the condition so that the Feoffee may enter and when he hath infeoffed the eldest Sonne he hath done well Westcots Case in Communi Banco 41. El. fo 60. IF a man make an estate to three and to the heires of one of them one of them in this case hath Fee simple and yet the joynt estate continues for it is all one estate created at one time and therefore the Fee simple cannot drowne the joynture which taketh effect with creation of the remainder in fee but when three joyntenants are for life and after one of them purchase the Fee or else the Fee discends to him there the Fee simple doth drowne the estate for life for the estate for life was in esse before Note by this resolution if tenant for life grant his estate to him in the reversion and a stranger 't is a surrender for the moity and the benefit of survivor not regarded so the doubt in 7. H. 6. well resolved Resolved upon view of three presidents that judgement should be given for the plaintiffe upon a demise made by husband and wife without alledging it to be by Deed. Tookers Case 43. Eliz. fo 66. IOhn Arundell seised of Lands in Fee maketh a Lease thereof to A. and B. for their lives and after grants the reversion to C. for his life to which grant A. doth atturne being joynt tenant with B. and after A. by his Deed doth surrender to C. all his estate title and interest c. and then dyeth C. entereth claiming to hold in common with B. and whether his entree was lawfull or no was the question and judgement was given that it was lawfull for the attornement of the one tenant for life shall vest the entire reversion in the grantee because the estate of the joynt Lessees is entire and every joynt tenant is seised per my pro tout ' and by consequence the reversion which is dependent and expectant upon this estate is entire also and the atturnement of the one joyntenant is the atturnement of both Attournement is a lawfull act if one joyntenant assigne Dower 't is good Also the attornement passes no interest from him that attournes but perfects the grant of another And if one joyntenant give seisure of rent that shall binde the other but in a quid juris clamat or quem redditum reddit or per quae servitia one joyntenant shall not be permitted to attourne without his companion for doing of prejudice to his companion By Popham one joynt-tenant may prejudice another in the personalty but not in the realty if one take all the profits or release a personall action the other hath no remedy because of the privity and trust betweene them and the folly imputed to him to joyne with such a companion Note if a tenant have notice of the grant by a stranger and doe give his assent thereunto it is a good atturnement although it be in the absence of the grantee but disagreement ought to be to the party himselfe or doe atturne for any part it is good for the whole for the intent of an atturnement is but onely an assent to perfect the grant of another and he which atturnes cannot apportion divide or alter the grant Lord Cromwells case 40. of the Queene fo 70. BLunt bargained c. the Mannor of Alexton to which the Advowson of A. was appendant by Indenture to have as after in the same Indenture is mentioned and B. covenanted to suffer a common Recovery to the use of Andrewes and his heires rendring 42. pounds per annum to B. and his heires with a nomine poenae And further 't was covenanted and agreed as well for the assurance of the Mannor to A. as of the rent to B. that B. should levie a Fine c. to A. and his heires and A. by the same Fine should render a rent of 42. pounds per annum c Provided alwayes that A. by Deed should give the Advowson c. to B. during his life and if it did not become voyd during his life one turne to his executors c. And further 't was covenanted and agreed that all assurances afterwards to be made should be to the use of this Indenture c. after a recovery was
pending the Writ Resolv That by the common Law by admission and institution the Usurpor gaines the inheritance of the advowson without regard of the nonage of the Patron because he is in by judiciall act and the Bishop shall be supposed not to doe wrong to the Patron and the incumbent shall not be disturbed to excercise his function but the King shall have a Quare impedit at the common Law Collation doth not put him who hath right to present out of possession but if one have right to Collate it doth an infant by the Act of W. 2. c. 5. shall have a Quare impedit if a man usurp upon an infant who had a Mannor to which c. by discent who at full age infeoffeth B. the Church voideth c. by the usurpation the infant was out of possession and his right passed not and seems the Infant is without remedy If a Clerke commeth in by course of Law this gaineth not the inheritance against the right Patron who was not party to the writ The King shall not recover damages by this Statute for he is not within the first branch Si tempus semestre transierit nor within the second Branch for that depends upon the first yet he shall count to damages An incumbent shall not be moved if he be not named in the writ and if he be not admitted c. pending the writ and lapse shall not incurre if the Bishop be named in the Writ otherwise if he be not If he who is presented pending the Writ be in by rightfull Patron or not yet he who recovereth in a Quare impedit shall have a generall Writ to the Bishop which he must execute of necessity and after that the parties may try their titles as the Law shall determine Countesse of Rutlands Case in the Starre-Chamber 3. Jacobi fo 52. THat the person of a Countesse or a Baronesse may not be arrested for Debt or trespasse for although in respect of their Sex they may not sit in the Parliament yet they are Peers of the Realme and shall be tryed by their Peers Stat. 20. H. 6. Peers of the Realme may not be sworne in any inquest a Countesse in Marrying with a Husband doth loose her Name of a Countesse If a Baronesse c. by Marriage marry againe under the Nobility shee looseth her dignity but if she be Noble by Birth or descent yet whomsoever she Marryeth she remaineth Noble for Birth-right is Character intelebilis and that which is gained by Marriage may also be lost by Marriage A Sheriffe ought not to dispute the Authority of Courts but he ought to Execute the Writs to him directed for thereunto be they Sworne Serjeant at Mace upon a cap. ad satisfaciendum came to the the said Countesse in Cheapside being in her Coach and touched her body with the Mace and said I arrest you Madame at the Suite of S. and those were all the words that were us'd therupon compell'd the Coach man to carry her unto the Counter-gate in Woodstreete and the Sheriffe tooke her into his house In this Case it was resolved that the Sheriffe Bayliffe c. upon the Arrest ought to shew at whose suite out of what Court for what cause it is and when the processe is returnable and that this generall Arrest of the Countesse cannot be said that it was by force of the said Writ of Execution and that this Arrest was of the Serjeants owne head without warrant and against Law and that the said Countesse was falsly imprisoned but she remained in the Sheriffes custody 7. or 8. dayes untill shee paid the Debt but because the Arrest was by a fained Action entered in the Counter the Serjeants were sentenced The Lord Chandos case 4. Jacobi fol. 55. THe King grants to B. in taile and in consideration of the surrender of the Letters Patents by force whereof the King is seised in fee granteth to him and his wife and to the heires of B. the reversion passeth for the recitall that the King was seised in fee was but the Collection of the King and no part of the consideration or suggestion of the party And when the King grants land in posseâ—… if he had but a reversion this shall passe for he is not deceived because lesse passes then he intended Bredimans case 4. Jacobi Com. Banco fol. 56. A Man deviseth a rent for life out of a Mannor and he deviseth the Mannor for yeares the termor enters and pays the rent after the Terme the devisee brings an assize against the Terretenant Resol Payment by lessee for yeares of the rent giveth no seisin to have an assize 1. In respect of the imbecillity of his estate 2. He cannot give seisin because he had not seisin and therefore a Pracipe lyeth not against him because he cannot render seisin but he may take seisin to the use of him in the freehold A disseisor may give seisin of a rent secke because he hath a freehold and it is lawfull 3. A rent secke is caecus siccus therefore it behoveth the first payment which giveth life unto it shall be made by a Tenant of the freehold and in this case being created by devise an Annuity lyeth not thereupon otherwise if it be by grant and Tenant of the freehold ought to attorne to a grant of such a rent over therefore he shall give seisin But seisin by a Bailiffe is good if seisin were had before within sixty yeares and seisin given by Tenant at will is good but it ought to be pleaded as payment by the lessor himselfe If the King hath rent out of a ville to be paid by all the Inhabitants seisin alledged in generall without naming any is good Gatewards case 4. Jac. in Com. Banco fol. 59. TO claime common ratione Commorantiae residen in villa de B. is not good for no man may have interest â—…ommon in respect of a Messuage wherein he hath no interest For custome should alwayes extend to that which hath certenty and continuance and without question tenant in fee simple ought to prescribe in his owne name and tenant for life or yeares by elegit at will c. in the name of him that hath the Fee and he that hath no interest cannot have any common and none that hath any interest although it be but at will and ought to have common but by good pleading he may enjoy the same No improvement might be made in any wasts if this custome viz. in respect of habitation and Comorance should be allowed for tenants for life or yeares at will by elegit by Statute c. of the houses of the Lord should have common in the wasts of the Lord if this prescription were allowed which were inconvenient A Custome that every Inhabitant in B. shall have a way over such grounds either to the Church or Markett c. is a good custome for that is onely easement and no profit and a way or passage may well sequi
make a Lease for yeares and after enter into the Land and make wast and the Lessor recover in an Action of wast against the Lessee for life he shall avoid the Lease for yeares made before the wast committed But if a Lessee for life make a Lease for yeares and after enter and make a feoffement in fee the Lessor shall not avoid the Lease for yeares and so if a Tenant make a Lease for yeares and after is attainted of felony or dyeth without heire the Lord by escheate shall not avoide the tearme But because the feoffement in the case at barre was executed by Letter of Attourney it was resolved to be void and the Land escheated to the Queene Jehu Webbes Case 6. Jacobi com banco fo 45. THe King grants the office of the Kings Tennis plaies at W. to one who being disseised brings an assize The Patent shall have a reasonable construction not onely when the King himselfe playes but when any of his Houshould As if a Commission be made to take Singing-Boys in a Cathedrall-Church for the Kings Chappell those that Sing there for their pleasure cannot be taken but such as get their living by it There were but two manner of assizes at the common Law assizes De libero tenemento and De communia pasturae but for no other common but for this onely there is a Writ in the Register But the Statute of W. 2. c. 25. giveth it De proficuo in certo loco capiendo in lieu of a Quod permittat and although that there offices amongst other things are named yet an assize lay of an office at the common Law and although that no Tenant for life may have a Quod permittat yet an assize did lye for him but that is to be understood of an office of profit for it lyeth not of an office of charge Originall Writs made by Statute cannot be altered without Statute In an assize of a new office it ought to be shewed what profit belongs to it but not for an ancient office because that is sufficiently knowne Syms Case 6. Jacobi fo 51. TEnant in taile levyeth a fine with warranty and dyeth the warranty discends upon the issue of him in the remainder inheritable to the taile and another the issue in taile brings a formedon and is barred for all for the warranty is intire and barreth every one upon whom it discends of all his right as if one seised of three acres maketh a feoffement of one with warranty and dyes having issue two Daughters who make partition the Mother purchaseth the part of one brings dower against the feoffee who Vouches the Daughters shee shall recover all the other acre of the other Daughter if Tenant by the curtesie make a feoffement with warranty and dyes and his Sonne heire of the Feme recovers and assets discends after the feoffee shall have a Scire facias to have the Land first recovered by the Statute of Glouc. c. 3. but if assets descend to the Heire in taile bound with a lyneall warranty after recovery in formedon the Feoffee shall have a Scire facias to have the assets for otherwise if the recoverer alien the assets the issue of him will recover the Land in taile againe but in these cases the discontinuee ought to confesse the title of the Demandant and pray that if assets descend after they may discend unto him for if he plead a warranty and assets this is peremptory unto him if it be found that assets did not discend for the Statute is that a Scire facias shall issue out of the rolls of the Justices and in this case there is no ground for the Scire facias in the Record but in this case if the issue in taile pleads no assets and assets are found but not to the value the tenant shall have a Scire facias to recover the assets discended after for that false plea of the Vouchee Warranty and estoppell discend upon the heire generall and warranty barreth although that he upon whom it discends claimeth not by him that made it but so doth not an estoppell but estoppells with recompence binde the right of one who claimeth not by him that made it Roger Earle of Rutlands Case 6. Jacobi fo 55. THe King grants the pannage and herbage of a Park to M. for life and reciting this grants it to the Earle of Rutland for his life 1. Resolved the King hath three manner of inheritances 1. Some which he cannot excercise himselfe and cannot grant them in reversion or remainder as Corodies and Churches of which he is Patron 2. Others which he cannot excercise himselfe but may grant them in reversion or remainder as offices 3. Others which he may excercise himselfe and may grant as Lands Houses c. 2. The King here is not deceived for when he reciteth here that M. had for life and grants for life this inureth as by Law it may that is as a grant in reversion 3. In this case the grant to the Earle shall commence after the determination of the estate of M. and if the King grants Land to one and his Heires Habendum to him and his Assignes it is good and the Habendum shall be rejected for the honour of the King See the Lord Chandos case in the sixth Booke and when a Charter of the King may be taken to two intents good in many cases it shall be taken to such intent as is most beneficiall for the King but if it may be taken to one intent good and to another void then for the honour of the King and benefit of the Subject then it shall be taken so that it may take effect Beechers Case 6. Jacobi fo 58. B. Plaintiffe in Debt Se retraxit by attourney and by the judgement is not amerced he brings eror 1. Resolved a Retraxit ought to be in proper person for at the common Law every one who appeared ought to come in proper person and make his attorney after by license of the Court but if it be without writ he cannot without a writ of Attornato faciendo In cases where one may make an attourney but for contempt is bound to appeare in person if he appeare by attourney this is not error because the court may dispens with the contempt otherwise where he cannot appeare by Law by attorney as here for if he appeare by attourny this is error 2. B. ought to be amerced if upon a Nonsuite a Fortiori upon a Retraxit and although it is for his advantage yet he may assigne it for error because the judgement is not perfect and because it is for the advantage of the King and it shall not be amended because the act of the Court. 3. Where one disclaimes he shall not have a Writ of error because he hath confessed that he had no right otherwise it is upon a Retraxit for this is but a barre of the action à fortiori here where it wat void done by an attourney
he lost his Common the Jury found that the Defendant did not put in the Beasts but they of themselves depastured there 1. The Jury have found the substance of the issue for the Plaintiffe the depasturing there and it is not materiall if he put them not there 2. This Action lyeth for the Commoner for he may distreine damage feasant and it may be that with strong hand he is hindered to distreine and so if he shall not have this Action he is remedilesse 2. A Commoner who had freehold in the common shall have an Assize Ergo a Copy-holder shall have this Action 3. The wrong ought to be so great that the Commoner loose his Common as a Master shall not have an Action for beating his Servant without losse of his Service and it appeareth not to the Court that there are more Commoners then he and if there be yet an Action lyeth because each had private damage and it is not like to a common Nusans which shall be punished onely in a Leete if there be not speciall damage but be the Trespasse never so little the Lord may have an Action of Trespasse The Lord Sanchars Case 10. Jacobi fol. 117. For procuring the Murther of John Turnor Mr. of Defence 1. REsolv That a Baron of Scotland shall be tried by Commons of England 2. The Indictment of the accessory in one County to a Fellony in another County by the Statute of 2. E. 6. c. 24. shall recite that the fellony was done in the other County for an Indictment is no direct affirmation of the fact 3. The Justices of the Kings Bench are within these words of the Statute Justices of Gaole-delivery or Oyer and Terminer for they are the supreame Judges of Gaole-delivery 4. The Lord Sanchar cannot be in the Terme-time Arraigned in Midd. before Justices of Oyer and Terminer because Justices of Oyer and Terminer shall not sit in the same County where the Kings Bench is but the principalls were Arraigned in L. in the Terme-time because this is another County 5. There needs not be 15. dayes for the returne of the Venire facias upon an Indictment in the same County where the Kings Bench is otherwise in another County 6. Because there is no direct proofe that the Lord S. commanded one of the principalls but that he associated himselfe to one who was commanded the best way is to arraigne him as accessory to him whom he commanded but if he be Indicted as accessory to two and found accessory to one of them this is good The word Appeale in the Statute of W. 1. c. 14. is to be intended generally Viz. By Indictment by Writ or Bill c. and attainders is to be intended upon any such accusation Ergo if upon any such accusation the principall be attainted erroneously the accessory may be arraigned because the attainder is good untill it be reversed but if the Accessory be Hanged and after the Attainder against the principall is reversed the Heire of the Accessory shall be restored to all which his Father lost either by entry or Action By 5. H. 4. cap. 10. none shall be imprisoned by Justices of Peace but in the Common Gaole whereby it appeares that Justices of Peace offend who commit Fellons to the Counters in L. and other Prisons which are not Common Gaoles Cases in the Court of Wards Anthony Lowes Case 7. Jacobi fol. 122. A. L. Tenant of 59. Acres parcell of the Mannor of A. by chivalry and Suite of Court to B. whereof A. was parcell and both A. and B. were parcell of the Duchie of L. out of the County Palatine holden formerly of the King in Chivalry in Capite and of another House there holden of A. by fealty and rent H. 8. grants the rent by release to him and confirmeth his estate in the said Lands by fealty onely and grants to him the Mannor of A. Tenendum by fealty and rent It was Objected that when the King grants the Seigniory to his Tenant the ancient Seigniory is extinct and a new one that is best for the King created Viz. Chivalry 2. When he extinguisheth services parcell of the Mannor of A. this shall be holden as the Mannor of A. is that is by Chivalry But resolved that the 59. acres and house shall be holden by fealty onely and as to the said Objection the release of the King doth not extinguish service which is inseparable to a Tenure that is fealty but all others are gone and true it is when the K. grants and expresseth no tenure it shall be by Chivalry but when the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be as Feoffee of Tenant in Frankalmoigne shall hold by fealty onely and here although they grant the services yet he limits the grantee to doe fealty A Knights fee is not to be taken according to the quantity but the value of the Land as 20. l. per annum and a Hide of Land is as much as a Plough can Plough in a yeare Reliefe is the fourth part of the annuall value that is of a Knight five pound of a Baron a 100. Markes of an Earle 100. l. of a Marques 200. Markes of a Duke 200. l. The Eldest Sonne of E. 3. called the black Prince was the first Duke in England and Robert Earle of Oxford in the Raigne of R. 2. was the first Marques and the Lord Beaumont was the first Viscount created by K. H. 6. Floyers Case 8. Jacobi fol. 125. BAron and Feme seized of Lands holden in Chivalry in right of the Feme in Fee levy a Fine to one who grants and renders to them and the heires of the Baron and levy another Fine to their use for life the remainder to their three Sons in taile one after another the remainder in fee to the heires of the Baron the K. shall have neither wardship of body nor Land 1. Resol That is out of the Statute of 32. H. 8. cap. 2. if he who had the fee dye c. in respect the estate by the first Fine did not continue and this although both the Conveyances are voluntary 2. The King shall not have wardship of the third part because it is not for advancement of the Wife for in the first Fine the Land moved from her and shee had no more by the second Fine then by the first 3. In regard the particuler estate is out of the Statute no wardship accrueth to the King by advancement of him in the remainder but if a revertioner upon an estate for life convey it to the use of his Wife this will give wardship of the body of the heire for he in revertion is tenant if a Lease for life be the remainder to two and to the heires of one he who hath the fee dyeth his heire shall not be in ward if the heire of one joyntenant who had the fee dye of full age living the tenant for
nor body were lyable to Execution in Debt or damages recovered but Execution was to be done by Fieri facias or Levari facias of his Goods and Chattells and profits growing upon his Land but in debt brought against one as heire his Land was liable to Execution because the Plaintiffe had no other remedy for the goods belong to the Executors but the body goods and Lands of the K. Debtor or accomptant were ever liable to Execution but such Levari facias or Fieri facias ought to have beene sued within the yeare or otherwise he was chased to his Writ of Debt and now by Westm 2. c. 45. he may have a Scire facias and by the 18º Chapter of that Statute an Elegiâ— is given of the moity of the Land which was the first Act that subjected Land to Execution for Debt or Recognizance and by the Statute of 13. E. 1. de Mercatoribus 27. E. 3. c. 9. 23. H. 8. c. 6. In Statute Merchant and Statute Staple all the Lands of the Conusor at the day of acknowledgement shall be extended into whose hands soever they shall after come But in all Actions Vi armis where a Capias lyeth in Processe there after judgement a capias ad satisfaciendum lyeth the K. shall have a Capias pro fine and in such cases the Law the preserver of peace subjecteth the body to Imprisonment and by Marlebridge c. 23. West 2. c. 11. a Capias was given in an accompt the proces before being a distresse infinite and by 25. E. 3. c. 17. the same proces given in Debt as in account for before this Act the body was not liable to Execution for Debt as aforesaid 2. If Land of the heire be seised in Execution upon a recognizance of his auncestor he shall not have contribution against a purchasor of his Auncestor although he come in without consideration and although the Heire be not charged as Heire but partly as Terretenant but one purchasor shall have contribution against another purchasor and one Heire against another Heire because they are in Aequali jure and therefore the Writ here which issued against the Heires without naming the purchasor is good although he be charged as Terretenant The Heire shall have an Audita quaerela as well as the Conusor himselfe before Execution sued and a Supersedeas but a Stranger shall not If diverse acknowledge a recognizance the charge doth not survive and the Land of one shall not be put in Execution but all their Lands equally so if two are bound to warranty both or their Heires and the survivor and the Heire of the other shall be jointly vouched and the Land of both shall be rendered in value But if Baron and Feme and the Heires of the Feme are bound to warranty and the Feme dye the Land of the Baron may be solely taken in Execution because there are no Moities betweene Baron and Feme So that when Land shall be charged by any Lien the charge ought to be equall but in a Lien personall otherwise it is as if two are bound in an Obligation there the charge shall survive But a Purchasor Bona fide before any Action brought shall not be subject to any charge And three Errors were moved in the record 1. The Scire facias was Haerediterrarum c. which is improper for he is not Heire to the Land but to his auncestor 2. The Writ is Scire facias haeredi terrarum c. and the Retorne is Scire fecit W. H. militi haeredi praedicti M. and every Retorne must answer the point of the Writ 3. The judgement is generall against Sir W. H. where it ought to be speciall for otherwise his owne Land shall be liable where by the Law the Land onely which came to him by his Father ought to be charged and he is charged as Terrtenant as aforesaid but these poynts were not resolved by the Court. Nota the new Writ of Error after entry of the first was not brought Quod coram vobis residet because the Record is not removed out of the keeping of him who had the custody thereof before A Perfect Table of the Principall matters contained in every Case in this Booke WHAT words doe make a generall warranty and to whom the custody of evidences doth belong Page 1 Tenant for life commeth in as Vouchee in a common recovery it is a forfeiture Page 1 2 23. H. 8. Extends not to suppresse good uses the conveyance good and the bad use void any man may give Lands to Charitable uses Page 2 Touching the Exposition of the Kings grants and how the words Ex speciali gratia mero motu c. therein shall be construed Page 3 A common Recovery by Tenant in taile binds them in remainder and reversion and all Leases and charges granted by them ib. A feoffement by Tenant for life destroyeth a contingent remainder Page 4 Conusee of Tenant for life and him in remainder in taile renders a rent to Tenant for life it is good during his life ib. Tenant for life and he in remainder in taile infeoffe I. S. it is no discontinuance or forfeiture otherwise if without deede Page 5 Perpetuities are against Law but the Parliament or Law may make an estate as to one and good to another Page 5 6 Tenant in taile suffers a recovery and dyes before Execution it may be sued against the issuâ— and when a man may enter or claime the Law will not put things in him till entry or claime Page 7 A man may be in by discent and yet not have his â—…ge ib. A future power of revocation may be released Page 8 When any thing Executory is created by consent of all it may be voided Page 8 A feoffement by feoffees devesteth all future uses contingent Page 9 27. H. 8. Transferreth the possession to uses onely In esse ib. When a remainder ought to vest ib. 27. H. 8. Of uses shall not be taken by equity ib. A diversity when Tenant for life infeoffeth the reversioner mediate and when imediate there it is no forfeiture ib. A disseissor may make admittances but not voluntary grants Page 11 A difference when a confirmation is made to one that is in upon an expresse condition and when not there the estate is absolute ib. Every fee simple may be charged one way or other Page 12 A difference betweene Terminus annorum Tempus annorum Page 13 A Termor grants to B. so many yeares as shall be behind Tempore mortis suae it is void otherwise if for a certeine number of yeares ib. A lease cannot comence upon a double contingency Page 14 He who hath a power of revocation may doe it part at one time and part at another time till he hath revoked all Page 15 By the same conveyance the old uses may be revoked and new raised Page 16 Vpon what conveyances uses may be raised upon a generall consideration Page 16 17 An Action of
the Mannor ex speciali gratia c. and all her right estate title claime c. Resolved that the Record was well removed by the Writt of Error which was for to remove the recovery of the Mannor of M. in M. cum pertinentiis and the Recovery was of the Mannor of M. cum pertinentiis Resolved that this Writt of Error was not given to the King by any of the words of the Statute of 28. H. 8. because the terrtenant is in by title and the entry of the person attainted taken away and such a right for which the party hath no remedy but by action is a thing consists in privity which cannot Escheate nor be forfeited by the common law and this word right in the Act shall be satisfied with a right of entry and 't was observed by the Court that by no Act of attainder a right of action was ever given Note a diversitie betwixt inheritances and chattells for Obligations Statutes Recognisances c. are forfeited by attainder or Outlawry By the Court if L. had made a Feoffement without warranty this had been a discontinuance of the moity for the joynture was severed Resolved that H. N. had no right to a moity of the Mannor for though the recovery were erronious for 't was agreed 't was not void yet the recovery being in force the remainder hath no right for the intended recompence if tenant in taile suffers an erronious recovery and disseise the recoveror and dye his issue shall not be remitted for the taile is barred as long as the recovery stands in force and the Court agreed that neither an action without a right with a discent shall make a Remitter as in the principall case nor a right without an action for a man shall never be remitted but when an action lyes if the right and possession were in severall persons Resolved for the one moity the Recovery shall be a barre to the taile and remainder for though that as well L. as the vouchee might have abated the Writt because Anne was joyntly seised not named yet when the vouchee without demanding any Line enters generally into warranty and admits the Writt good and L. recovers in value which shall inure according to his estate with the remainder over 't is barred for by the recovery against L. the joynture was severed but for the other moity the recovery was not a barre to the taile or remainder because for that L. was not tenant to the Praecipe but the recovery is by Estoppell onely Agreed that H. N. at the time of the attainder was not intitled to have error yet 't was agreed that the remainder upon a taile shall have error upon a judgement given against tenant in taile for when W. 2. inables the donor for to limit a remainder over upon the taile all actions which the common Law gave to privies in estate are by the same Act as incident given also as a reversion or a remainder shall have Error upon a judgement given against tenant for life though not privie by aide voucher or receiver But agreed that by the common Law Error doth not lye by c during the life of tenant for life except he were privy to the first Record by aide voucher or receiver for remedy whereof 9. R. 2. ca ' 3. was made which gives an attaint or error during life upon which Statute the Court resolved 1. that though the Statute speakes onely of reversions yet remainders are within the purview 2. That a reversion expectant upon a taile is out for the Statute enumerates these foure estates Life Dowor Courtesie and Tenant in taile after possibility which declares their intentions to exclude reversions upon tailes and this upon great reason for the taile by possibility may continue for ever and here L. survived H. N. and so his possibility of error destroyed and no word of the Act extends to give a possibility Resolved admitting the Writ of Error had been given to the Queene that by this generall grant of the Queene it did not passe for a common person cannot grant it and therefore it ought to passe by Prerogative and ought to have precise words adjudged in Cromers case 8. of the Queene the Queene having a right of a disseisee attainted grants de speciali gratia c. all lands c. The right doth not passe without speciall recitall and words Owen and Morgans case Trin. 27. of the Queene Baron and Feme are seised and to the heires of the body of the husband a recovery is had against the Baron sole without naming of the wife and after the wife dyed Resolved that though the wife were not party to the Writ nor the Conisance for the estate of the husband and wife was by render upon a Fine levied by the husband and though it does appeare within the same Record that she was a stranger yet the render to her is voidable onely Resolved that this recovery against the husband onely shall not binde the remainder for betwixt husband and wife there are no moities and the husband hath no power to sever the joynture or dispose any part and he during the life of the wife is not seised by force of the taile and he can by no Act execute any part so the Praecipe being brought against him onely the recompence cannot enure to the taile or remainder for to all it cannot for the wife hath a joynt estate in possession and for a moity it cannot for there are no moities and the remainder depends upon the entire estate and recompence recovered by the husband onely cannot inure to him who hath a remainder depending upon the undevided estate of the husband and wife and the joyn-tenancy cannot be severed by the judgement against the husband onely and though the husband hath all the inheritance yet because by no possibility it can be executed 't is all one as if the husband had a remainder depending upon an estate for life and then a common recovery shall not binde because not tenant to the Praecipe nor seised by force of the taile but tooke effect by Estoppell onely The issue may say his auncestor was not tenant tempore brevis and though here the husband survived the wife this is not materiall for the Law adjudges as 't was then Copledikes Case 44. of the Queene fo 5. C. And his wife were seised and to the heires males of the body of the husband the husband levies a Fine to A. B. recovers in a Writ of entry against A. who vouches the husband onely the wife living who vouches the common vouchee Resolved that this recovery shall binde the remainder for here was a lawfull tenant to the Praecipe and though the husband were onely vouched and not his wife who had a joynt estate with him yet the husband coming in as vouchee he came in in privity of the estate taile and not of another estate and the recovery in value gives recompence to the taile which
the husband had and to the remainder A. tenant in taile the remainder to B. the remainder to C. the remainder to D. A. makes a Feoffement the feoffee suffers a recovery B. is vouched and he vouches the common vouchee A. is not bound but B. and all the remainders are for though the remainders are discontinued and cannot be remitted till the taile be recontinued yet in a common recovery which is the common assurance he which comes in as vouchee shall be in judgement of Law in privity of the estate which he ever had though the precedent estate upon which the estate of the vouchee depends be discontinued so here the husband shall be said in of the taile and 't is the stronger because the estate of the wife was put to a right so that the husband came in as sole tenant in taile and not joyntly with his wife because she is not vouchee and he cannot be in of another estate because once he had a taile but had they had a joynt estate to them and the heires of their two bodies he being onely vouched it might be doubted whether the taile should be barred because the wife had a joynt inheritance with him 8. of the Queene Dyer Knivetons case A Praecipe is brought against tenant for life and the remainder in taile they vouch over it shall not binde the taile for the remainder is not tenant to the Praecipe and the land is recovered against the tenant for life onely and recompence shall not goe to the remainder and the remainder was never seised by force of the taile and so 't was adjudged in Leach and Coles case 41. of the Queene Heydons case 26. of the Queene fo 7. THe Gardians and Cannons Regular of the late Colledge of O. seised of the Mannor of O. granted a Coppihold to Father and Sonne for their lives c. and after they leased it to H. for fourescore yeares rendring the ancient Rent and after surrendred their Colledge Resolved that the lease to H. was voyd the Coppi-hold for life continuing by the Statute of 31. H. 8. For Coppihold is an estate for life and the Statute saith of which any estate or interest for life c. at the making of such grant had continuance reade the Booke at large where you have admirable rules for true interpretation of all Statutes Resolved when a Parliament alters the service tenure interest of the land c. in prejudice of the Lord custome or tenant the generall words shall not extend to Coppi-holds as the Statute of W. 2. de donis conditionalibus doth not extend to them for if the Statute should alter the estate this should also alter the tenure for the donee ought to hold of the donor and to doe such services without speciall reservation as his donor did to the Lord and the intent of the act was not to extend to such base estates which were taken then but tenants at will and the Statute saith Voluntas donatoris observetur in carta c. So that which shall be intailed ought to be such an hereditament which may be given by Charter and great part of the land within the Realme being granted by Coppy it would be inconvenient that Coppi-holds should be intailed yet neither Fine nor Recovery should barre them so that the owner cannot without making a forfeiture by assent of the Lord and a new grant dispose of it for payment of debts advancement of his wife or younger issues wherefore the Statute doth not extend to them by Manwood Ch' Baron which the Court agreed But 't was objected that the Custome and the Statute cooperating might make a taile as if by a custome a remainder had been limitted over and injoyed and plaints in nature of a Formedon in discender brought and the land recovered by it so neither the custome without the Statute nor the Statute without the custome can make a taile And Littleton saith that if a custome hath been that lands c. have been granted c. or in taile c. paulo post that a Formedon in discender lyes of all tenements which Writ was not at common law Manwood answered if the Statute doth not extend to them without question the custome cannot for before the Statute all estates of inheritance were fee simple and no custome can commence after the Statute for this being made 13. E. 1. is made within time of memory and Littleton is to be intended of a fee simple conditionall for he knew well that no custome could commence after the Statute of W. 2. as appeares in his booke 2. ca. 10. and 34. H. 6. and a Formedon in discender in speciall cases lay at the common Law And by the Court another Act made at the same time which gives an Elegit extends not to Coppiholds for the reason aforesaid but other Statutes made at the same time extend to them as ca ' 3. which gives a Cui in vita receite and ca ' 4. which gives to the particular tenant a Quod ei deforceat Resolved that though 't was not found that the said rents were the usuall rents accustomed to be reserved within 20. yeares before yet because 't was found that the accustomed rent was reserved and a custome goes to all times before it shall be so intended without shewing the contrary and judgement was enterd for the Queene The common Law is founded upon the perfection of reason and not according to any private and sudden conceite or opinion Borastons Case 29. of the Queene fo 19. B. Devised land for eight yeares and after to his executors to performe his will till H. his youngest Sonne come to the age of 21. yeares and when H. comes to 21. yeares then that he shall have to him and his heires H. dyed at the age of 9. yeares Objected that till H. attaines to 21. yeares the land descends to the heire and for that he never attained to 21. yeares this remaines in the heire and the intent appeares by the words that he should not have till he come to 21. yeares and this ought to precede the commencement of the remainder and if land were leased till H. comes to 21. yeares H. then being of 9. yeares 't is no absolute lease for 12. yeares for if H dye before 21. the lease shall be determined which the Court agreed 'T was also said that when the particular estate which should support the remainder may determine before the remainder can commence there the remainder doth not vest presently but depends in contingency If one make a Lease to A. for life and after the death of B. the remainder to another in Fee this remainder depends upon contingency for if A. dye before B. the remainder is voyd A Lease is made to A. for life the remainder to B. for life and if B. dye before A. the remainder to C. for life this is a good remainder upon contingency If A. survive B. which case is all one with
a grant but the common Law requires that he be so instructed that he be not deceived there a Non obstante supplies it and makes the grant good As the King having made a lease for life or yeares grants the land Non obstante that it be in lease for life yeares c. or if he grants the land and further grants the reversion of it depending upon an estate for life yeares c. 't is good See the booke at large Resolved when the words are not sufficient ex vi termini to passe the thing granted but the grant is voyd there a Non obstante will not serve as in the principall case and the Pattents were not holpen by 18. of the Queene ca ' 2. for Pattents of concealement are expressely excepted out of the Act. Terringhams case 27. El. in banco regis fo 36. REsolved that prescription doth not make a thing appendant except the thing which is appendant agree in quality and nature to the thing unto which it should be appendant as a thing incorporate as an advowson to a thing corporate as a Mannor or as a thing corporate as Lands to a thing incorporate as an office these may be appendant but every thing incorporate may not be appendant to a thing corporate as common of turbary may not be appendant to Land but to a Messuage or house as it is holden 5. ass 9. for the thing which is appendant ought to accord with the nature and quality of the thing to which it is appendant and turves ought to be expended in a Messuage The commencement of common appendant by the ancient Law was in this manner viz. When a Lord of a Mannor infeoffed another of arrable Lands to hould of him in Soccage id est per servicium socae the Feoffee ad maintenand ' servicium socae had common in the wasts of the Lord for his necessary beasts that did plowe and ayre his Lands and this common is of common right and commenceth by operation of the Law and in favour of tillage and therefore it needeth not to prescribe in that for so it is houlden 4. H. 6. 22. H. 6. as one ought if it were against common right But it is onely appendant to the ancient arrable Lands and onely for oxen horses kyne and sheepe c. And because it is against the nature of common appendant to be appendant to meadowe or pasture and because that here the prescription was to have common time out of minde to a house meadow and pasture as well as to arrable by which it appeares to the Court that there hath been a house meadow and pasture time out of minde 't was resolved that this common was appurtenant not appendant But if of latter times men have builded upon some part of such arrable Lands and some part thereof is imployed to meadow and pasture and this for maintenance of tillage the originall cause of common the common remaines appendant and it shall be intended in respect of the continuall usage of the common for beasts leavant and couchant upon such lands that at the beginning all was arrable But in pleading he ought to prescribe that the same is appendant to Land for though terra dicitur a terrendo quia vomere territur yet terra includes all and is arrable though converted to meadow c. For it may be plowed A man may prescribe to have common appendant to his Mannor for all the demeanes shall be intended arrable at least in construction of Law redd ' singula singulis it shall be appendant to such demeanes which are ancient arrable c. And when a man claimes common appendant to his Mannor no incongruity appeares of his own shewing as here So common may be appendant to a Carve of land which may containe pasture meadow and wood but it shall be applyed to that which agrees with the nature of the common Resolved that common appendant may be apportioned because 't is of common right for if a commoner purchase part of the Lands in which he hath common yet the common shall be apportioned as well as if the Lord purchase parcell of the tenancy the rent shall be apportioned And if A. a commoner enfeoffe B. of parcell of his ancient Lands the common shall be apportioned and B. shall have common pro rata And 't was agreed that such common which is admeasurable remaines after severance of part of the land to which c. But here for that the common was appurtenant 't was adjudged that by the purchase all was extinct for 't was against common right for by the act of the parties it cannot be in esse for part and extinct for part 'T was said that pertinens is the Latine word as well for appurtenant as appendant and therefore subjecta materia and the circumstances ought to direct the Court to adjudge the common appurtenant or appendant Resolved that unity of possession of the intire land to which c and of the intire land in which c. extinguishes the common appendant By Wray chiefe Justice common for vicinage is not appendant but for that it ought to be by prescription 't is resembled to common appendant but common appurtenant or in grosse may commence at this day by grant or prescription and by him the one may inclose common for vicinage against the other as hath been adjudged in Smith and Redmans case Resolved that a man may chase out beasts that doe him trespasse with a small dog and shall not be compelled to distraine them damage feasant Cases of Appeales and Indictments Brookes case 28. of the Queene fo 39. REsolved that in an appeale of Burglary 't was an insufficient count that the defendant domum c. felâ—… burgaliter fregit for it ought to be burglaâ—… or burgulariter which is vox artis as murdravit â—…it which cannot be otherwise expressed Resolved if the count had been sufficient he being â—…icted once should not be againe impeached but here he was discharged upon the insufficient count By Wray Chiefe Justice if upon accident a man and all his family are out of the house and one in the interim breakes the house and commits felony 't is burglary for the indictment is domum mansionalem fregit and so 't was resolved 38. of the Queene where a man hath two mansion houses servants in both and in the night when the servants are out c. the house is broken 't is burglary Wetherell and Darlys case 35. of the Queene fo 40. IN an appeale of murder the Defendant was found guilty of homicide and had his Clergy after indicted and arraigned for murther pleaded this conviction Resolved that 't is a good barre at common Law and restrained by no Statute the reason is because the life of a man shall not be brought twice in question for the same offence Youngs case 38. of the Queene fo 40. AN Indictment that dedit unam plagam mortalem circiter pectus
rent for though it be parcell of the grange and A. and F. have the reversion of the terme and so it may be said in their tenure yet for that A. then had not H. in his occupation 't is not charged Resolved that the lessee at will is chargeable by 32. H. 8. ca ' 37. for where things are due in right and become remedilesse by the act of God the Parliament which gives remedy for this shall be favourably construed and extend to advance the remedy proportionably to the defect of the Law according to the mind of the makers and therefore the Feoffee of the Feoffee in infinitum shall be charged for otherwise the Statute shall be in vaine c. Resolved if the grantee in fee or for life of a rent service or charge after 't is arreare grants over the tenant attournes the grantor dyes his Executors are not within the Statute for by the grant the arrerages are lost and were not due to the testator tempore mortis as the Statute speakes and after the grant the testator could not distraine for the arrerages and the act gives remedy onely where the arrerages are due and become remedilesse by the act of God Sharpe and Pooles case 17. of the Queene a rent was granted to a woman for life 't is arreare she takes husband 't is arreare the wife dyes the husband brings debt against the heire being terrtenant for all arrerages Resolved that for the arrerages before the marriage he had no remedy at common Law but for the other he had debt Objected that the husband shall not have the arrerages due before by this Statute 1. Because at common Law the Executors of the wife may have an action for them and the Statute gives remedy when Executors cannot have an action and doth not intend to toll the remedy from the common Law 2. The branch says due in the wives life so the arrerages ought to incurre when she is his wife Resolved to the contrary for the Statute says due and unpaid in the wives life and the common Law gives remedy for the arrerages of an estate for life incurred in the life of the wife and therefore the Statute did not intend to extend to these arrerages but to the arrerages due before for Verba accipienda sunt cum effectu Resolved that a Feme covert cannot make an Executor without assent of her husband and the administration of her goods of right belong to the husband And the Statute in naming the woman wife intends noely to describe and designe the condition of the womaln not to imply that the arrerages ought to incurre during coverture Rawlins case 29. 30. of the Queene fo 52. A. Possessed of a house for thirty yeares except a Stable of which B. was possessed for two yeares granted all his interest to C and demised the Stable to B. for sixe yeares by Indenture after the end of the two yeares C. redemises all to A. for twenty one yeares rendring twenty pounds per annum and to pay a Fine of twenty five pounds upon condition for to reenter for non payment of the rent or Fine before the day of payment A. redemises the Stable to C. for ten yeares the rent was behinde the Fine was not paid C. enters not into the Stable nor B. attournes Resolved that where the verdict was entered three termes past and in the Roll the demise to B. for six yeares was not enterd to be by Indenture that the Roll shall be mended because the note of the speciall verdict which the Jury exhibited to the Court remaining with the Secondary purports that the Jury found the demise prout by which it doth appeare to the Court that the demise was shewne in evidence and reference made by the note to it and so 't was in Gomersalls case Resolved though the condition is of two parts in the dis-junctive for non-payment of rent or of the summe in grosse yet if A. had redemised any part of the house to C. and C. enters by which the rent is suspended that all the condition as well for the collaterall summe as for the rent is also suspended because the condition is intire and cannot be divided by the act of the parties Resolved that if A. had redemised any part to C. though C. never enters the rent is suspended and though a stranger occupy it Resolved that the lease by A. to B. for six yeares though he had nothing at the time was good by conclusion by the Indenture and when C. redemised all to A. then was the interest bound with this conclusion then when A. redemises to C. the Stable C. is also concluded for all parties and privies in estate or interest are bound by the Estoppell then the case is no other but that A. demises for six yeares the Stable to B and after demises to C. for twenty yeares which is a good Lease in reversion for fourteene yeares this is no suspension of the rent or condition for 't is no grant of the reversion but a future interest in reversion no terme but an interest of a terme as the pleading is and notwithstanding such grant the reversion is in the grantor without atturnement and he shall have the rent upon the first lease but if there be an atturnement the reversion passes and suspension will follow And therefore 't was agreed if a man leases for twenty one yeares rendring rent and a reentry the lessee leases to the lessor for six yeares to commence two yeares after the rent is arreare and by this he shall defeate the future interest vested in him Resolved that this Estoppell being found by verdict the Court ought to judge upon all the speciall matter according to Law and because they are sworne ad veritatem dicendam they did well to finde the truth of the case and leave it to the Court by Wray chiefe Justice in Pledalls case the Jury was attainted for not finding such a lease by conclusion intending 〈◊〉 they being sworne ad veritatem dicend ' 〈◊〉 not bound to finde it for the Court held that the interest of the land as to parties and privies was bound and no conclusion shall be by such Indenture after the terme ended by Wray Resolved if lessee for twenty yeares leases for two yeares rendring rent and grants all his terme and interest if the lessee attournes the reversion passes and if no attournement be yet the interest in reversion passes for the grant of a man shall not be adjudged voyd if to any intent it may take effect Resolved if lessee for twenty yeares of a house leases part for two yeares and after leases to another all for ten yeares rendring rent so that it inures as a Lease in reversion for part that the rent shall issue out of all and of the interest of the terme though it be not any estate that may be surrendred and though it be conjoyned with land in possession Error was brought upon this
A Man leaseth S. for 10. yeares and C. for 20. yeares and both to another for 40. yeares after the end of the said severall demises ten yeares expire the last Lessee enters into S. and upon ouster brings trespasse and recovereth for the joynt words of the parties shall be taken Respective and the leases shall commence severally upon the severall determination of the said leases Joynt words shall be taken severally 1. In respect of the severall interest of the grantors as if two Tenants in common grant a rent charge 2. In respect of the severall interest of the grantees as a joynt warranty to two severall Tenants 3. In respect that the grant cannot commence at one time as a remainder limitted to the right heires of I. S. and I. N. 4. In respect of the incapacity of the grantees to take joyntly 5. Ratione subjectae materiae as rent granted to two copartners for equality of partition 6. Ne res destruatur ut evitetur absurdum as in Cessavit the tenure is alleadged by homage fealty and rent and quod in faciendo servitia praedicta cessavit it shall be construed to such services onely as of which a man may cease Brudenells Case 34. Eliz. banco regis fo 9. IF a lease be made to A. during the life of B. and C. without saying during the life of the survivor of them if one of them die yet the estate is not determined But A. shall have the land during the life of the survivor for if a man make a lease of Land to two persons during their lives they assigne over their estate now the assignee hath estate for life of them too and if one dye he shall have the land during the life of the Survivor Note two diversities th one a limitation in this Case aforesaid th' other a condition for if a man demyse Land for 100. yeares if A. and B. live so long in this case if th' one of them dye the Lease is determined for the Lease is conditionall and not Determinable by limmitation of estate and the life of a man is collaterall to the Lease which is but onely a Chattle If an administrator have judgement and dye his Executors cannot sue execution of that judgement but he that shall be subject to the payment of the Debts of the first intestate and that are not the Executors of the administrator vide 26. H. 8. fo 7. Hensteads Case 36. 37. Eliz. com banco fo 10. A Feme lessor or lessee at will taketh Husband the will is not determined for it may be prejudiciall to the Husband to have it determined So if one of the Lessees or Lessors at will dye but in case where one of the joynt Lessees at will dyeth nothing surviveth but the others shall pay all the rent Jues Case 39 40. Eliz. com banco fo 11. I. Leaseth a Mannor to S. for thirty yeares excepting Woode and underwood growing upon it and after Leased to him the Woode for 62. yeares without impeachment of wast and leaseth to him the Mannor for thirty yeares after expiration of the first thirty yeares thirty yeares expire S. maketh wast I bringeth an action of wast 1. Resolved by the exception of Wood and Underwood the soile is excepted and the woods growing c. are of abundance 2. The Wood remaines parcell of the Mannor because the Lessor had the intire freehold otherwise if he had leased for life with such an exception so if one lease a Mannor excepting the advowson for life the advowson is in grosse for life but if he grant the advowson for life it remaines appendant 3. By the acceptance of the third lease the said Lease of the Wood for 62. yeares was presently surrendered because the Lessee hath affirmed the Lessor to be able to Lease Saunders Case fo 12.41 Eliz. com banco In an Action of wast IF a man have Land in part whereof there is a Cole-myne appearing and he demise the Land to another for life or yeares the Lessee may dig for cole c. And the reason is for that the Myne is open at the time of the demyse c. and when he demyseth all his Lands it shall be intended that his meaning was that all the profit of the Land should passe c. but if the Myne be not open but within the Bowels of the Earth at the time of the demise 't is otherwise Also if a man have in his Lands hidden or unknowne Mynes and Lease the same Lands and all Mynes therein the Lessee may dig for them Rosses case 41. 42. Eliz. A Lease is made to A. and his Assignes for his life and the life of B. and C. this is a Lease for three lives and the Survivor of them Countesse de Salops Case fo 13.42 43. Eliz. banco regis SHe brought an action of the Case against Crompton and declared that shee demised to him a House at will Et quod ille tam negligenter improvide custodivit ignemsuum quod domus illa combusta fuit the defendant pleaded Non culpa and it was found not guilty And 't was adjudged that for the permissive wast no Action lyeth against the opinion of Brooke in Title wast 52. And the reason of this judgement was for that at the common Law no remedy lyeth for wast either voluntary or permissive against the Lessee for life or yeares because the Lessee hath interest in the Land by the act of the Lessor and it was his folly to make such a Lease and not to restraine him by Covenant condition c. And by the same reason Tenant at will shall not be punished for permissive wast But if Tenant at will commit voluntary wast as pulling downe of houses cutting of Trees a generall action of trespasse lyeth against him for that these doe amount to the determination of the will without the entry of the Lessor but it was agreed that in some Cases where there is confidence put in the party an action of the Case lyeth for negligence although the Defendant commeth to the possession by the act of the Plaintiffe as 12. E. 4.13 If one doe commit his Horse to one to keepe safely the Defendant Equum illum tam negligenter custodivit quod ob defectum bonae custodiae interijt an action upon the Case lyeth for this Breach of trust also 2. H. 7.11 If my Shepheard which I trust with my Sheepe and by his negligence they be drowned or otherwise perish an action upon the case lyeth against him but in this case at the Barre there was a demise at will made to the Defendant and no confidence repos'd in him wherefore it was ordered that the Plaintiffe should not recover by her Bill Case of Ecclesiasticall Persons 43. Eliz. fo 14. In the High Court of Parliament AT a Parliament holden in this Michaelmasterme it was resolved by the two chiefe Justices Popham and Anderson and diverse other Justices Assistants to the Lord of the
Banco fol. 7. IF one be barred by plea to the Writte hee may have the same Writte againe if by plea to the action of the Writte he may have his right action If the plea be to the action and he be barred by Judgement upon demurrer confession or verdict in personall actions it is a barre for ever and in reall actions he is put to a Writte of higher nature as barre in assize barreth one in Entry in nature of an assize but he may have an assize of Mortdaumester c. But barre is not perpetuall if those who are barred have not the meere right therefore the heire in taile who is barred shall have the same action so of the successor of a Parson if he doth not pray in ayde of the Patron and Ordinary He who lost by default before the Statute of Westminster 2. cap. 4. was put to a Writte of right and if he could not have this Writte he was without remedy In case where a Writte of Entry in the post lyeth now no remedy was before the Statute of Marlebridge cap. 29. but a Writte of right See there divers inconveniences which insue upon the breach or alteration of the auncient and fundamentall rules of the Common Law Interest Reipublicae ut sit finis litium Where a Writte shall be brought by Journeys accounts Spencers case 45. Eliz. Com. Banco fol. 9. IF a formedon abate for undue summons the demandant may have another by Journeys accompts 1. Resol If a Writte abate by default of the demandant himselfe he shall not have another Writte by Journeys accompts otherwise it is if by default of the Clerke or Sheriffe as in this case If a Writte abate for nontenure of all he shall not have c. but if a Praecipe abate for non-tenure of parcell he shall have another so if it abate for joyntenancy of part of the demandant he shall not have a new Writte because he had notice otherwise it is of the part of the tenant And this Writte shall be alwayes betwixt the parties to the first Writte and of the same quantity of acres A Judiciall Writte shall never be sued by Journeys accompts because it shall never abate for forme 2. The second Writte is quasi a continuance of the first Writte therefore all pleas which relate to the purchase of the Writte shall be pleaded from the purchase of the first Writte and costs of the first Writte shall be recovered 32. E. 3. Journeys accompts 16. 15. dayes were allowed Jentlemans case 25. Eliz. concerning Judges of Courts fol. 11 IN the Hundred Courts the Sutors are Judges in the Court of Pypowders the Steward is Judge In a Leet the Steward is Judge In a Court Baron the Sutors which are by the common Law are Judges Rex sectatoribus Curiae c. Vobis mandamus c. ad judicium reddendum c. procedatis but in Redisseisin the Sheriffe is Judge by the Statute of Merton cap. 3. and in the Tourne Morrices case 27. Eliz. Com. Banco fol. 12. IT was adjudged that after the act of 28. H. 8. ca. 1. although joyntenants be compellable to make partition by Writte as well as Copartners yet they may not make partition by words as Copartners may doe by the common Law If two joyntenants make partition by Writte the warranty remaineth otherwise it is if it be by deed by Consent Cases of pardon 29. Eliz. fol. 13. BVrton Parson of Isbock in Leic was deprived Anno 12. El. for committing Adulterie and after by the generall pardon 2. Apr. 13. El. the offence of adulterie in t alia was pardoned before the 14. of February then last past And it was said that before the pardon that crimen adulterij praed transivit in rem judicatam and therefore the sentence should remaine in force And therefore untill the sentence were reversed the deprivation was in force But it was resolved that Burton by vertue of the said pardon is become Parson againe without any sentence declaring the said deprivation to be voyde For by the pardon the adultery which was the cause of the sentence is discharged and by consequence all that which did stand or depend upon the same foundation is also discharged vide 20. El. Dier A. was bound in a Statute of 20. li. to B. B. sued Execution and the Lands of A. were delivered in Execution and after B. maketh Defeasance to A. by Indenture that if A. doe pay to B. 8. li. at a certaine day that then the Statute to be voyde And it was adjudged that although the Statute was executed yet the Defeasance of the Statute was sufficient in Law to defeate as well the Statute as the Execution thereof For the Statute is the foundation of all and if that be defeated all that is builded on the same shall be defeated also 20. ass pla 7. Burglary was excepted out of the generall pardon of 28. Eliz. by that the attainder of burglary is excepted for the offence remaines after judgement and is the foundation of it Arundells case 36. Eliz. Banco Regis fol. 14. AN Inditement of murther in King-streete in W. and the visne from W. and it was vitious for it ought to be from the most certaine place that is the Parish for W. being a Citie it shall be intended that it is greater then the Parish and therefore a new Venire facias was awarded Treports case 36. El. Banco Regis fol. 14. A. Tenant for life remainder in fee to B. both by Deed indented joyne in a Lease to Treport the question was whether the same shall be adjudged in Law the Lease of both of them or not And it was resolved that it was the Lease of A. during his life and the confirmation of B. And after the death of A. it was the Lease of B. and the confirmation of A. and because the plaintiffe had declared of a joynt demise of A. and B. it was adjudged against the plaintiffe in an Ejectione firmae If tenant for life and he in remainder joyne in a Lease rendring rent tenant for life shall have the rent during his life Edens case 37. Eliz. Banco Regis fol. 15. RIens passa by Letters patents shall be tryed where the Land is not where the patent beares date for the Patent is not traversed but the effect of the issue is whether the Queene had the said Land to grant or not Colyers case 37. Eliz. Com. Banco fol. 16. ONe demiseth to his daughter for life and after to his brother paying 20. s. to J. S. the brother had fee for the summe to be paid by him for otherwise he may pay the 20. s. and die without satisfaction but if the payment be to be made out of the profits of the Land he shall have but for life for there he can be at no prejudice Wyldes case 41. Eliz. Banco Regis fol. 16. A Man deviseth Lands to the husband and the wife and to the children of their bodies
but a labour to the Obligor or a stranger there he had time during his Life Fitz-Williams Case 2. Jacobi banco regis fol. 32. BAron and Feme Tenants for life and to the heires of the body of the Baron the Baron sole is vouched in a common recovery the taile is barred Copledicks Case 3. Report 2. Resol If Tenant in taile suffer a recovery to his owne use the remainder to his wife with diverse remainders over with power of revocation and limittation of new uses by any such writing he revoketh all the remainders except that to his Wife and by the same deede limits new uses this is good for by any such writing shal be intended the same or any such and it may be by the same deede for first it takes effect as a revocation 2. By limittation of new uses and there are not more instances then one in it See there Leaper Wroths Case cited 30. El. to prove that powers whereby the interest of Strangers shall be changed shall be taken strictly as a power to make leases for twenty one yeares he cannot make a Lease for 21. yeares to commence in Futuro The Bishop of Bathes Case 3. Jacobi com banco fo 34. THe B. 18. H. 8. Leaseth to E. and R. for sixty yeares proviso if they dye within the terme that the B. and his Successors shall reenter E. dyes the B. dyes the Successor Leases to C. Cum post sive per mortem c. praedict R. acciderit vacare for sixty yeares with confirmation R. dyeth Resolv every Lease ought to have a certaine beginning and the continuance ought also to be certaine eyther by expresse number of yeares or by reference to an expresse certeinty or where a Lease may be reduced to a certeinty by matter Ex post facto Agreed the second Lease vests presently in poynt of interest to take effect in possession at the end of the first Terme if by none of the accidents the first Lease become voyd in the meane time and then the Lease shall commence at the first accident which doth happen and the Lessee hath no Election The Deane and Chapter of Worcesters Case 3. Jacobi fo 37. THe D. and Ch. seised of a Mannor in Fee in which were Copy-holds grantable for three lives for 8. s. 8. d payable quarterly and herriotable grant a copy-hold for the Life of three reserving the old rent halfe yearely this is not voyd by 13. Eliz. cap. 1. Resolved the grant of a copy-hold for the life of 3. is good for although there may be an occupancy yet it is not inconvenient for an occupant shall be punished in wast 2. Grant of a Copy-hold is a demise by the intent of the Statute for in Law it is a Lease at will 3. The omission of Herriot doth not make it voyd because the annuall rent is reserved 4. It is sufficient that the yearely rent be reserved twice in the yeare for the Statute saith yearly which maketh a difference betweene this Case and the Lord Mountjoyes Case in the fifth Report Bellamyes case 3. Jacobi com banco fol. 38. A Lease upon condition that the Lessee shall not alien without License Assignee of the Lessee pleads that the Assignement was with License and shewed not forth the Deede of License 1. Because he did not claime by it 2. Because the License was Ex provisione hominis and not Ex institutione legis 3. Because it was executed and good Henry Finches Case 3. Jacobi banco regis fol. 39. A Grant of a rent charge out of diverse Mannors c. in the Parishes of E. and W. Aut alibi dictis marerijs spectantur and out of Lands which is not parcell of any of the Mannors these are not charged with the distresse for Alibi doth not charge more Land then is parcell of those Mannors but all parcells of the said Mannors out of the said Parishes Sir Anthony Mildmayes Case 3. Jacob. banco regis fol. 40. 1. REsolved a perpetuity is against the rules and pollicy of the common Law 2. It is impossible that an estate tayle shall cease before that Tenant in taile dyes without issue and an estate cannot be made to continue as to one and determine as to another except by Statute 3. A gift in taile upon condition that he shall not suffer a common recovery is voyd because he had power by the Law 4. It is a voyd saying that his estate shall cease if he goe about c. for Non officit conatus nisi sequatur effectus Also many ambiguities will arise thereupon because the Law doth not define it and it is so uncertaine that is not traversable Blakes Case 3. Jacobi com banco fo 43. AN accord with satisfaction is a good barre in a Writ of Covenant because the duty accrueth not meerly by the deede but by a torte subsequent together with the deed and it is a good barre in an attaint because this is not founded upon the record onely but upon the false Oath also In all cases where an arbitrament is a good Plea an accord with satisfaction is also and so generally in all Actions where damages onely are to be recovered Higgins Case 3. Jacob. com banco fo 44. IF a man have judgement upon an Obligation so long as this judgement is in force he may not have a new action upon the same Obligation For Interest reipublicae ut sit finis litium infinitum in jure reprobatur A Statute Staple is but an Obligation recorded and one Obligation cannot drowne another although they be both for one Debt and the Obligee may choose upon whither he will bring his Action 11. H. 4. and 2. Jac. Sir William Cornewalles Case and Branthwaytes Case and in every judgement the Defendant is amerced and so he shall be amerced in Infinitum Dowdales Case 3. Jac. com banco fol. 46. IN Debt against an Executor the Defendant pleads fully administred the Plaintiffe saith that he hath assets at E. the Jury found assets in Ireland 1. Resol when the place is materiall the poynt in issue cannot be found in another place 2. Where the place is named but for conformity assets may be found in another County 3. In a generall issue the Jury shall finde all materiall locall things in another County 4. The Jury by a meane shall trie locall things in another County as a release in a forreigne County the Jurors shall assesse damages for the profits of the Land in the other County Multa conceduntur per obliquum quae non c. but in case of felony the Tryall shall be where the offence was done 5. The finding of assets is the substance and that it is in Ireland is surplusage A thing done beyond the Sea shall be tryed here if the foundation of the Action be here Boswells Case 3. Jac. banco regis fol. 48. IN a Quare impedit judgement was given to remove the incumbent of the Queene not party to the Writ who was presented
a Retraxit ought to be when the party is supposed to be present therefore it shall not be when he imparleth Swaynes Case 6. Jac. fo 63. 1. REsolved the King grants a Mannor for life except Timber Trees the Lessees grant copy-hold the Grantees may shrowde Timber Trees because they come in by custome Paramount the exception 2. If Copyholders prescribe to take profit in any part of the Mannor if the Lord aliens it a Copy-holder admitted after shall have it because he is in paramount the severance but he shall prescribe and plead specially that is untill such a time Viz. Before the severance Talis habebatur c. consuetudo c. and then shew the severance Sir William Fosters Case 6. Jac. fo 64. C. F made a feoffement 4. E. 6. reserving a rent charge which rent descends to T. F. who dyes intestate his administrators avow for it and alleadge no seisin within 40 yeares yet good for the Statute of 32. H. 8. c. 3. that none shall avow for rent if he had not seisin within 40. yeares is to be intended when it was necessary to alledge as upon rent betwixt very Lord and Tenant for this may be had by incroachment and perhaps the comencement of the Seigniory was before time of memory but where rent is by deede or reservation as here or upon an estate taile the seisin is not materiall for the deed or reservation is the Title and incroachment shall not hurt and they shall not have a Ne injuste vexes but shall avoide it in an avowry and Magna Charta c. 10. Quod nullus distringatur ad faciendum majus servitium c. doth not extend to donee in taile Lessee for life c. but is intended betweene very Lord and very Tenant Lovedayes Case 6. Ja. fo 65. IF a Jury who appeareth to try a certaine issue give a verdict which is accepted be it perfect or imperfect they are discharged and shall not trie the same issue upon a new Nisi prius but a Venire facias de novo shall issue otherwise it is of the Recognitors of an assize they shall trie all the issue because they are not to trie any certeine issue and because they come in upon an Originall the Court will not award a new Originall but the Plaintiffe shall have a Certificate of assize to trie the imperfections the Plaintiffe sueth a Venire facias against diverse the Sheriffe returneth no Writ the Plaintiffe shall not have severall Venire facias after for he cannot vary from the first Crogates Case 6. Jacobi fo 66. THe Defendant pleads in barre to trespasse that the B. of N. leased by Copy to W. M. to which copyhold there is common in B. and justifieth as Servant to the said W. the Plaintiffe replies De injuria sua propria c. this is an insufficient replication for De injuria c. hath reference to all the plea in barre and not to the Commandement Ergo if the Defendant in false Imprisonment justifie for that a Capias was awarded to the Sheriffe who made a warrant to him to take the Plaintiffe De injuria c. is no plea because it referreth to all and so Record shall be tried by Jury but he shall traverse the Warrant which is matter in fact but this had beene a good plea if the proceeding be in a Court which is not of Record 2. De injuria c. is to be pleaded where the plea is matter of excuse and not where he claims an interest in his owne right or in the right of his Master for there he shall traverse the Commandement 3. Where authority is derived from the Plaintiffe himselfe or is given by Law as to fee if wast the Plaintiffe ought to answer to it although no interest be claimed and he shall not plead De injuria c. 4. If this plea be admitted here all parts of the plea in barre shall be tried and the issue will be full of multiplicity Trollop Case 6. Jacobi fo 68. THe Defendant in error pleads excommunication c. and sheweth the Certificat of the Vicar generall de D. the words of which were Vniversis clericis literatis per totam diocesim D. the Plaintiffe pleads the generall pardon 3. Jac. 1. Resolved the officiall cannot certifie excommunication for none shall doe that but he to whom the Court may Write to assoile the party as the Bishop and Chancellour of C. or O. and for that if a Bishop certifie and dye Before the returne of the Writ it shall not be received but the Successor shal doe it and one Bishop shall not certifie an Excommunication made by a Bishop in another Court but a Bishop after Election before Consecration may and so may the Vicar generall if it appeare that the Bishop is in Remotis agendis 2. The Certificat is insufficient because by the particular direction to the Clerks of D. the Kings Court and all others are excluded and so a protection in one Court serveth not in another and Excommunication is such a thing as the Court of the King hath conusance and therefore the Suite and the Cause are to be expressed in the Certificat that the Kings Court may judge of the sufficiency and if it be insufficient as if a Bishop certifie an excommunication made by himselfe in his owne Cause the Court may write to absolve him If the Certificat had beene good the point was whither the generall pardon dischargeth an excommunication or not Whitlocks Case 6. Jacobi fo 69. A Revertioner upon an estate for life levys a fine to the use of himselfe untill Marriage of his Sonne and then to the use of himselfe for life with power to make Leases so that they exceede not 21. yeares or three lives reserving the ancient rent the remainder to his Sonne in fee the Sonne is Marryed the Father maketh a Lease for 99. yeares if two shall so long live reserving rent to him his heires and the reversioners this is a good Lease 1. Resolved he had pursued his authority for if he had a perticular power to make Leases for 21. yeares or three lives he cannot make leases determinable upon lives but having a generall power to make Leases so that they doe not exceede 21. years or three lives he may 2. The rent reserved goeth to the Sonne although that he who reserved it had but for life because the Lease for yeares hath no being out of the Lease for Life but out of the Fee and in judgement of Law preceedeth both in construction upon the limitation of uses but the most safe way here had beene to reserve the rent generally and lest it to the distribution of the Law Greenelyes Case 7. Jacobi fo 71. BAron and Feme Tenants in speciall taile the Baron infeoffeth P. G. and dieth the Feme dyes the Sonne enters and Leaseth to the Plaintiffe 1. Resolved if Baron joyntenant in speciall taile with his Wife had made a Feoffement or had beene
disseissed at the common ley and dyed and the Feme before entry dyed this is a discontinuance to the Sonne because he cannot enter as Heire to both but if the Feme enter the discontinuance is purged 2. The estate which the Feme had jointly with her Baron is within the purviewe of the Statute of 32. H. 8. c. 28. That no fine levyed by the Baron sole of Lands of the Feme shall hurt her and within the Statute of West 2. c. 3. 3. The entry of the Sonne is lawfull although he claimes not as heire to the Feme as the Statute speakes but as heire to both because he is within these words or to such as have right by the death of such Wife and this is to be intended of discontinuances made by the Baron and not of a rightfull barre of the issue for they cannot avoide it and the Statute is that they may enter which they cannot doe where they are barred and if the Feme enter within 5. yeares as shee may after a Fine levyed by the Baron this doth not take away the future barre of the issue and if shee enter not within 5. yeares shee also is barred Baron tenant in taile the remainder to the Feme in taile makes a feoffement the Feme may enter after his death by this Statute but if the Baron suffer a recovery she shall not enter in the Case at barre the son may have a Formedon at the common Law and where before this Statute a Cuj in vita or Sur cuj in vita did lye entry is given by this Statute and not otherwise The Lord Staffords Case 7. Jacobi fo 73. THe Queene revertioner upon an estate taile grants the revertion to T. T. in taile upon condition is to have Praedictam reversionem in fee the condition is performed the Lord Stafford Tenant in taile levyeth a fine his issue is barred 1. Resolved that a condition of accruer may be annexed to a thing which lyeth in grant and to an estate taile as if Lessee for life be the remainder for life with condition of accruer to the first this is good and yet no Merger of estate 4. things are requisit to an accruer 1. A particular estate as the Foundation Ergo a Lease at will shall not be 2. The estate ought to continue in the Grantee untill accruer therefore if the Grantee alien and repurchase the condition is Tolled but Quaere if the Tenant alien upon condition which is broken if the fee shall accrew but grantee may grant part of his estate as if Lessee for life make a Lease for yeares he may performe the condition after so may Tenant in speciall taile after he is become tenant in taile after possibility c. so may the surviving jointenant and the heire of Tenant in taile An instant is sufficient to support an accruer as if the condition be if the Lessee be ousted Eo instante that the ouster is the fee accrueth but if Lessee for yeares accept a confirmation for life the condition is gone but it is not necessary that the estate of the grantor or Lessor continue because by his owne act he shall not defeate his grant 3. It ought to vest at the time of the condition performed or never and for that rather that it shall not vest at this time by performance of the condition the fee without office or other ceremony shall be devested out of the King 4. It is necessary that the particular estate and the condition be in one deede or two deeds delivered at the same time for in Law they are but one grant and by the condition performed he had fee from the delivery Resolved Praedict reversionem signifies the reversion which the Queene had Viz. That which depends upon both the estates taile and so was the intent also shee granted Omnia praemissa which maketh it cleere Resolved also that these words Will and Declare doe amount to a grant and are so used in Patents of Liberties and things to take effect in Futuro Tenant in taile the remainder in taile the remainder to the King Tenant in taile suffers a recovery this doth not barre the remainder in taile because the issue in raile is not barred and therefore the revertions and remainders in taile are preserved by the Statute of 34. H. 8. c. 20. Lastly Resolved if the reversion in fee had remained in the Crowne that the fine levyed by Ed Lord Stafford the Father had not barred the Lord that now is Notlyes Case 31. Eliz. com banco Wiat Wields Case 7. Jacobi 78. W. W. seised of Land to which he had common appurtenant aliens 5. acres to one who in replevin counts that he and those whose estate he had in the said 5. acres have had common there c. and good 1. Resolved although by purchase of part of the Land in which c. the common appurtenant is destroyed in all yet it is not so by alienation of part of the Land to which but all remaines without damage to the Tenant of the Land 2. That the pleading of it was sufficient Vinyors Case 7. Jacobi fo 80. ONe was bound to stand to the award of W. R. and revokes the submission the Obligee brings Debt 1. Resolved the Countermand is good for an authority Countermandable by the Law cannot by any way be made irrevocable 2. Although that the Plaintiffe doth not show that the Defendant had given notice to the arbitrator yet it is good because this is implied for without notice the revocation is void 3. The Obligation by the Countermand is forfeited because he doth not stand to c. when he Countermands it 2. By his owne act he had made the condition impossible Ergo the Obligation is single if one bindes himselfe to give License to carry Wood c. for a certaine time if he give it and disturbe him the Obligation is forfeited Sir Richard Pexhalls Case 7. Jacobi fo 83. SIr R. P. seised of Lands part whereof is houlden in Capite deviseth 100. Sheepe 10. Bullocks and 10. l. quarterly to one with clause of distresse and that the Grantee shall hold his Courts for his life for rent arreare for 2. yeares the grantee avoweth 1. Resolved a devise of rent out of all is good and taketh effect out of two parts and as to the third is void 2 The grantee shall have an estate for life in rent and so he shall if it be granted by Deede also by the Intent of the Devisor it appeares that the Grantee shall hold Courts and have 10. l. per annum for his wages and quarterly here had relation to rent onely because the word Et disjoyneth it from Sheep and Bullocks and judgement given for the Avowant Buckmers Case 7. Jac. fo 86. T. B. gave a House in Gavellkinde to M. his Eldest Daughter in taile the remainder of one Moity to J. a second Daughter in taile the remainder of the other Moity to K. a third Daughter in
aforesaid an Assumpsit without specialty is no more personall then a Covenant by specialty and therefore dyeth not with the person William Banes Case in banco regis 9. Jacobi fol. 93. UPon an Action of Assumpsit against Executors the Plaintiffe needeth not to averr that the Executors have assets in their hands of the goods of the Testator to the value of the said Debt for it shall be intended Prima facie that they have Assets for the Law doth presume that the Testator will not leave a greater charge upon his Executors then he will leave benefit to discharge If a Stranger doe say unto a man to whom a Debt is owing I pray â—ou forbeare your Debt and doe not sue the Partie untill Michaelmas c. and then I will pay you the Debt This is a good consideration although it be no benefit to him that made the promise for it It is a damage to the Creditor to forbeare his Suite or debt hee may have his Action of assumpsit against such a Stran-ger after the day Sir George Reynells Case 9. Jacobi fol. 95. In Chancery IT was found by Office by Commission under the great Seale That the Marshall of the Kings Bench had committed diverse Forfeitures of his Office by suffering voluntary escapes of Prisoners That Office and such like may not be granted for yeares because it is an Office of trust and personall and he must continually attend and be Sworne in Court Two matters of record amount to an Office as in the Case of Sir John Savage who was Sheriffe of the County of Worcester for life by Letters Patents under the Great Seale and was Indicted of two voluntary escapes of Fellons and the King may seize his Office into his owne hands without suing forth any Scire facias 5. Mar. Dyer The Abbot of Saint Albones had a Gaole and detained Prisoners therein and because he would not be at charges to sue forth a Commission for the Gaole delivery the King caused his Franchise and Liberty thereof to be seised into his owne hands The Abbey of Crowland had a Gaole and Prisoners and for that hee once deteined men that were quit of Fellony the King reseised the Gaole for ever If a man grant an Office to another for life or for yeares and he will not doe his Office or otherwise misuse his Office the Grantor may reseize the said Office 39. H. 6. fo 34. If a Gaoler commit voluntary escapes or permit them this is a forfeiture of his Office Cooke Lib. 9. in the Countee of Salops Case The King may grant the custody of the Gaole to one in fee and also to the Sheriffe of a County to one and his Heires which estate in fee simple includes all other estates and it is true that these grants may be made by Law for in these Cases there is not any intermission for presently after the death of the Ancestor the Office discends to the Heire 2. This Office cannot be forfeited by Outlary as if it were granted for yeares it might grants of these Offices in fee or for life have beene allowed and approved but such grants for yeares were never allowed or approved Et periculosum existimo quod bonorum virorum non comprobatur exemplo He that hath the custody of the Gaole whither by right or wrong shall be charged with escapes of Prisoners untill he be actually removed Margaret Podgers Case 10. Jacobi fol. 104. I. P. Copy-holder for life the remainder for life the Lord bargained and sould and levyed a fine to I. P. this discended to M. P. who levyed a fine five yeares passe without claime of them in remainder adjudged no barre 1. Resolved that Copy-hold estates are within 4. H. 7. by the word Interest but if the Fine be by covin this barreth not the issue if Lessee for yeares or Copy-holder be ousted the Lord shall not have five yeares after a fine levyed by the disseissor after their estate determined because he may presently have an assize otherwise where Lessor for life is ousted A meer Stranger cannot enter to avoyd a fine without Commandement or assent of the party who hath right but a Gardian in socage or Lessor for life or Lord of a Copyholder may for the privity betweene them and the Infant or Lessees 2. A Fine barreth not any by Non-claime who is not put to a right therefore here they in remainder are not barred because the bargaine and sale and Fine to the Tenant in possession putteth them not to a right 1. Because it is a lawfull act 2. Tenant in possession devesteth not the remainder by acceptance as if Lessee for life accept a fine Corne ceo although it be a forfeiture 3. Because he is in by 27. H. 8. of uses which doth no wrong 3. After the bargaine and sale he in the next remainder shall not enter for by the custome his estate was to commence after the death of the Tenant in possession so if Tenant in possession forfeite the Lord and not he in remainder shall enter but thereby without a speciall custome the remainder is not destroyed If a Copy-holder in fee surrenders to the use of one for life no more passeth then serveth the estate limitted and he shall pay no fine for admittance after the death of Tenant for life It seemed to the Chiefe Justice that if the Lord here had charged the Land I. P. shall not hold it charged for the estates in remainder preserve him from incumbrances of the Lord. Meriel Treshams Case 10. Jacobi Communi Banco fol. 108. AN Administratrix Defendant in Debt pleads that the Testator and his Sonne acknowledged a recognizance to the King of a hundred pound and another of 800. l. to B. and another of a 1000. l. to M. and diverse others over and about which she had not assets and after said she had not sufficient assets the Plaintiffe replieth that the recognizance to B. was for payment of 400. l. which is paid and the other to M. is to performe Covenants whereof none is broken and the recognizance remaineth in force by Covin of the Defendant 1. Resolved that the barre is insufficient for shee first confesseth that shee had sufficient assets to pay the said recognizances and after denyeth it 2. She saith she had assets but not sufficient this is too generall but shee must confesse how much she had because she had knowledge thereof 3. The pleading by the Plaintiffe that the Obligation was made to performe Covenants is good without more certainty because he is a Stranger 4. The generall allegation of Covin is good without shewing of refusall to release c. and fraud may be in one onely also the barre is insufficient because the intestate was bound in the recognizances with another and the Defendant had not averred that the other had not satisfied them Robert Marys Case 10. Jacobi fol. 111. A Commoner being Copy-holder brings an Action of the Case for putting Beasts into the Common whereby
life his heire shall not be in ward although he be within age by that Statute because he is not immediate heire Sondayes Case 8. Jacobi fol. 127. M. S. deviseth to his Wife for life the remainder to W. S. and if he shall have issue that then his issue shall have it the remainder to S. the remainder to T. c. Totidem verbis upon condition that if any of them or this heires of their bodies goe about to alien that he in the next remainder to enter after the death of M. W. and S. T. suffereth a common recovery to his owne use in fee he in the next remainder enters 1. Resol Every one of the Sonnes hath an estate taile 1. These words if he dye without issue Male are sufficient to create an estate taile 2. The generall clause if any of his Sons or heires of his body doe it maketh it manifest 3. The condition proveth it for they cannot alien if they have but for life for this would be a forfeiture 2. The restraint of tenant in taile to suffer a common recovery is voyd See Mildmayes Case in the sixth Book Quicks Case 9. Jacobi fol. 129. THe King Lord I. N. and Tho. Q. mesnes of a Mannor which they hold in common in Capite and tenant of three Acres holden in Chivalry T. Q. maketh a feoffment of his moity to the use of himselfe for life the remainder to I. Q. his Son in taile the tenant infeoffeth I. Q. who infeoffeth T. Q. to defraud I. N. of the wardship of his Sonne within age and dyes I. N. seiseth the Son T. Q. dyeth the King shall not have wardship of the body and moity of the three Acres 1. Resol By the death of I. Q. it was a Chattell vested in I. N. and the King had but a possibility to have it if T. Q. dye during the minority of the ward which possibility shall not devest the wardship out of I. N. 2. When the tenant infeoffeth a stranger to defraud the Lord of wardship the Lord shall not have ravishment of ward before recovery of the Land in a right of ward and although the title of I. N. be but in action yet it shall not be devested by a descent after See the Statute of 34. H. 8. in Case of collusion Bewleys Case 9. Jacobi fol. 130. THe King Lord mesne by Socage and tenant the tenant is attainted of Treason the King grants to one tenendum by Chivalry and Rent and to doe his services to other Lords the tenant shall hold by Socage of the mesne and he by Socage of the King because the intent of the King was to revive the mesnalty which cannot be by any other way and the reviving of the ancient tenure shall be in construction preferred before the reservation of a new and the honour of the King shall be preferred before his profit and there was no default in the mesne Thomas Holts Case 9. Jacobi fol. 131. GRandfather tenant in Chivalry in Capite Father and Son the Grandfather conveyeth part of his Lands to the use of the Father and his Wife the remainder to the Son in taile c. the remainder to the right heires of the Grandfather and conveys other Lands to his younger Children for life with diverse remainders over and dyeth the Father tenders livery and before he sueth it dyeth 1. Resol By the death of the Father before livery sued and after tender the King loseth the primer seisin but not meane rates if any be due 2. The Son shall not pay primer seisin nor sue livery because the Father and not he was within the Statute of 32. H. 8. 3. If the King had had one primer seisin he shall not have another of the Lands conveyed to the younger Children but that ought to be an effectuall seisin Ergo here because the King had not the effect of the primer seisin of the Father he shall have primer seisin of the Lands conveyed to the younger Children as if hee had the grant of a prochein avoidance and presents and his Clerk dyeth before Induction he shall present again and before the Statute of Donis If tenant in taile the revertion to the King had aliened post prolem suscitatam with warranty which descends upon the King it is no barr without assets the effect of the warranty 4. The King shall not have primer seisin in regard of a secke revertion which descends to the Son otherwise if a rent be reserved the King may have that for a yeare So note for a fruitlesse revertion there shall be wardship but no primer seisin Matthew Menes Case 9. Jacobi fol. 133. TEnant of the King of a Messuage in Capite who holds other Gavelkinde Land deviseth all to his 4. Sons equally 1. Whether the King shall have a third part of the Messuage onely 2. Whether out of the part of the heire onely because Praerogativa Regis cap. 1. Rex habebit c. De quocunque tenuerint c. is intended if the Land descend to the same heire to whom the Land holden did discende 1. Resolved if no Will had beene made the King shall not have the Lands holden of others in socage but when by the Will to which he is inabled by the Statute he deviseth it to his Sonnes there the saving in 32. H. 8. giveth to the King ward and primer seisin So if Lands in chivalry devisable by custome are devised to the Feme although the devisee be good for all without aide of the Statute yet the King shall have a wardship of a third part 2. The King shall have his third part out of all their Estates equally Ascoughs Case 9. Jacobi fol. 134. THe King Lord Mesne in Capite and Tenant in socage the Mesne grants to the use of himselfe for life the remainder to the Tenant in taile if the remainder suspends the Mesnalty during the life of the Mesne Resolved that during his life the Mesnalty is not suspended 1. Not as to the Mesne because he remaineth Tenant to the Lord nor by reason of the remainder for the avoâ—ding of Fractions otherwise if the remainder be liimitted in fee for then he hath as high an estate in the Mesnalty as in the Tenancy and this can never be revived and otherwise a Seigniory in fee shall issue out of a Mesnalty for life and there will be Lord and Tenant in fee and Mesne for life but if the Lord Grant his Seigniory for yeares the remainder for life to the Tenant the Mesnalty is suspended A Mesnalty or Seigniory cannot be suspended in part and in esse for part by the Act of the party but they may by act of Law or of a third party As if the Lord take a Lease of part of the Tenancy all the Seigniory is suspended but if a Gardian indow the Feme the Seigniory is in esse for that part and suspended for the residue If two Coparceners are of a Seigniory and one commeth to the Tenancy by
defeasible Title the other shall distraine for the moity of the Seigniory and the Act of the Coparcener shall not prejudice her There are foure manner of Avowries 1. Upon his very Tenant 2. Upon his very Tenant by the manner where the Tenant had but a particular estate 3. Upon his Tenant by the manner when the Lord had but a particular estate 4 Upon the matter in the Land as within his fee but the Lord hath liberty to Avow according to the Common Law Thoroughgoods Case 9. Jacobi fol. 136. TEnant in fee infeoffeth one by Deed indented and delivereth it upon the Land in the name of seisin this is good and hath a double operation at one instant Viz. to deliver the Writing as a Deed and to deliver seisin of the Land according to the Deede 1. Resolved this is his Deed although he doth not say so but delivers it in the name of seisin for delivery is good without any words if one deliver a Deed to one as an escrow to be his Deed upon performance of conditions this is his Deed presently otherwise if he deliver it to a stranger so words are good without actuall delivery as if he saith take it like to a livery within view If the Obligee deliver the Obligation to the Obligor to redeliver the Obligor may retaine it for the words to redeliver are void 2. Delivery of the deede upon the Land amounteth not to livery and seisin but it doth if delivered in the name of seisin so of any other thing or if he saith I deliver you seisin without delivering any thing this is good also Beaumonts Case 10. Jacobi fol. 138. I. B. and E. his Wife Tenants in speciall Taile the remainder to the Heires of the Baron I. B. levies a Fine to K. E. 6. who grants to the Earle of H. in fee I. B. dyeth E. enters the Earle of H. confirmes her estate to have to her and the Heires of the body of I. B. E. dyeth seised having issue F. B. who accepts a fine Sur conusans de droit tantum with Proclamations and dyes having issue Sir H. and I. Sir H. in Ward to the K. after full age and before livery Covenanteth to stand seised to the use of himselfe and his heires Males of his body and dyes having issue onely a Daughter in Ward whether shee or I. B. shall have the Land c. 1. Resolved that E. had an estate taile and the Statute of 4. H. 7. c. 24. which inableth the Baron to barre the issue saveth the right of the Feme if shee enter or c. and one may have an estate taile which cannot discend as if the Sonne in the life of the Father levyeth a fine the Father remaineth Tenant in taile still although it cannot discend and E. here hath an estate taile so long as shee liveth or the Heires in taile remaine 2. The Confirmation is void for he who did confirme had but a possibility which passeth not by the confirmation and if he had a reversion in fee yet it should be void 1. Because the taile which the Feme had was confirmed which cannot descend 2. The confirmation doth not add a descendible quallity where he who should have it is disabled to receive by discent 3. This would in effect repeale 4. H. 7. 32. H. 8. two of the principall Pillars of the Law 4. 5. If Tenant in Dower grants her estate there is a discendible quality in the Heire to bring wast against Tenant in Dower and although the Heire confirme her estate for life and after shee assigneth it to I. S. who committeth wast yet the action of wast is maintainable against her Pari ratione in the Case at Barre in regard the confirmation doth not inlarge the estate of E. it cannot add unto it a discendible quallity 6. There are but three manner of Confirmations Viz. Perficiens Crescens aut diminuens and the Confirmation in this Case is none of them and if E. had no power to levy a fine or suffer recovery the reason is because she cannot barre that which was barred before by her Husband but this point was not now in Question The End of the Ninth Booke THE TENTH BOOK The Case of Suttons Hospitall Baxter Plaintiffe Sutton and Law Defendants in Trespasse in the Kings Bench and adjourned into the Exchequer Chamber and judgemet given against the Plaintiffe 1. Obj. BY the Parliament 7. Jacobi the Hospitall was Founded at H. in Essex Ergo the incorporation made after by the Kings Letters Patents is void and the Charterhouse is not given by the said Statute because S. purchased it after 2. Sutton who had License to Found an Hospitall before the Foundation dyed 3. The K. cannot name the House and Lands of S. to be an Hospitall because in Alieno solo 4. Every Corporation ought to have a place certaine but here the License is to found an Hospitall at or in the Charterhouse Ergo before that S. had made it certaine there was no incorporation also the place of Corporation ought to be certaine by Meates and Bounds and a place knowne will not serve 5. The King intended to make an incorporation presently which cannot be before that S. name a Master 6. Governors cannot be untill there be poore in the Hospitall Ergo S. calleth it in his Will his intended Hospitall 7. The Foundation cannot be without the words Fundo erigo c. and before such Foundation a Stranger cannot give Lands unto it 8. The Master was named at will where he ought to be for life and have freehold in the Lands also the Hospitall must be Founded before a Master be named 9. The bargaine and sale made by S. is void 1. Because the Money paid by the Governours in their private capacity shall not inure to them in their politick capacity 2. The Habendum is to them upon trust which cannot be in a Corporation 3. Because as before no Hospitall was Founded 10. The King cannot make Governours of a thing not in Esse To the first it was answered that the Letters Patents recite the preamble of the Act whereby and in many parts of the Act it appeareth that the incorporation was to be In futuro when it shall be erected and the Statute doth not give any Lands unto it but power to give without License of alienation and mortmaine and it appeareth by the Letters Patents that the erection precedes the License 2. The License is to him his Heires Executors c. at any time hereafter and the words of incorporation are in the present and so the incorporation precedeth the execution of this License 3. Although the King gave the name yet S. devised it and assented to it and the K. did it at his Suite 4. The K. makes an Hospitall of all the premises so that it is certaine and as to that which was said that a place uncertaine cannot be an Hospitall It was answered that a Mannor may be which is
more uncertaine then the Charterhouse To the essence of a Corporation five things are requisite 1. Lawfull authority to incorporate and that may be foure wayes by the common Law as the King himselfe by authority of Parliament by the K. Chartar and by prescription 2. The persons either naturall or politicall 3. A name by which c. 4. A place 5. Words sufficient but not restrained to a strict forme 5. A Corporation may be without head as if the K. incorporate a Towne and give to them power to choose a Maior they are a Corporation before Election 6. It is a sufficient incorporation that there be an Hospitall potestate for the Temple was a Corporation in the time of H. 1. and yet was not built till H. 2. time but here the House was built before 7. The first Donor is in Law the Founder and when the K. giveth a name and designes the place and the persons the Founder hath nothing to doe but the Donation but if the K. leaveth the nomination to the party there many times although not of necessity he useth the words Fundo erigo c. But in truth the incorporation is made by the K. Chartar and the Founder is but an instrument 8. The Master may be at will for by the Letters Patents S. had power to name one at his will and pleasure 9. The money paid by some of the Governours in their private Capacity is good but the payment was as Governours and so they are acquitted 2. A rent was reserved which is a good consideration 3. A bargaine and sale may be upon confidence and trust 10. They may plead that they are seised In jure incorporationis although then it be not In esse In Answer to the presidents some are Explanatory some Nugatory Ex consuetudine clericorum Sir Thomas Fleming Chiefe Justice of England became sick whereof he after died so that he never argued the Case See there his severall advancements and commendations Mary Portingtons Case 11. Jacobi fol. 35. AFter many things said concerning Perpetuities in this Case it was said that a recovery in value barreth an estate taile although no recompence be had because it is by judgement as if issue in taile be barred in a formedon by warranty and assets but if the issue before judgement given alien the assets his issue shall recover the Land in taile if Tenant in taile suffer a recovery and die before Execution the issue is barred It is absurd that one may barre one of going about to suffer a recovery when he cannot bare the recovery it selfe but if such a condition had beene good a Feme Covert by that shall not loose her Land for she shall not loose her Land by any conclusion without examination upon Writ in Court and if shee acknowledge a recognizance this is void although it be with her Husband because there is no Writ to examine her if an Infant levy a fine this is voidable and shall be tried by inspection but a fine levyed by a Feme Covert is void if the Husband enter otherwise not Jennings Case 38. ElIz Banco regis fol. 43. Tenant for life suffers a common recovery in which he in remainder in taile is vouched who dyeth the reversion in fee is barred 1. Resolved that at the common Law a recovery against Tenant for life upon a true warranty and recovery in value binds him in the remainder 2. No Statute was made to provide for him who had a reversion or remainder upon an estate taile and the Statute of W. 2. c. 3. which giveth receite to a revertioner upon default of him who holds Per donum is to be intended of Tenant after possibility of issue extinct and 32. H. 8. c. 31. provides onely for a reversion or remainder upon a Lease for life 3. There have beene diverse evasions out of the Statute of 32. H. 8. as if Lessee for life Lease for yeares to one who infeoffeth one who in recovery Vouches Lessee for life this was out of the Statute because the Lessor and Lessee were put to a right whereupon 14. Eliz. c. 8. was made 4. 14. Eliz. extends not where Lessee for life vouched him in remainder in taile because it is in the power of him in remainder to dock the reversion c. and the course is that Tenant in taile bargaines and sells to one who suffers a recovery in which Tenant in taile is Vouched and yet the bargainee had but for life judgement affirmed in Error Lampets Case 10. Jacobi fol. 46. LEssee for 5000. yeares deviseth for life to one whom he makes Executor the remainder to his Sister and the Heires of her body and dyes the Sister taketh Husband they release to the Executor who demiseth for ten yeares to the Defendant the Baron dyes the Executor dyes the Feme takes another Baron who demise to the Plaintiffe judgement against the Plaintiffe 1. Resolved a devise of the use of a Tearme to one for life the remainder to another for life is good as an Executory devise 2. A devise of the tearme it selfe in such manner is good 3. The first Devisee cannot barre him who had the Executory devise 4. Assent of the Executor to the first devise is an assent for all 5. If such a devise be made to the Executor and he enter generally he shall have it as Executor 6. Such an Executory devise cannot be granted over 7. Such an Executory devise may be extinguished by release to the first devisee Object That the first devisee had all the interest in him and the other but a possibility which cannot be released as if Conisee of a Statute release his right in the Land yet he may sue Execution It was answered that a thing in Action cannot be granted to a Stranger neither by the Act of the party nor of Law but it may be released to the Terre-tenant and here to him who had the present interest 1. Because as it may be easily created being a Chattell so it may be easily determined 2. Every right as well present as future by joyning all who have interest one way or other may be extinguished so if the Executor and the Sister here had joined in an assignement this had beene good 3. When many things are requisite to the perfection of any thing the Law respects the Originall Act and here the fundamentall acts were the devise death of the devisor the assent of the Executor and death of the first devisee and shee hath a right that may be released and the death of the Executor is but a meanes to bring it into possession as a Feme Covert barreth her selfe of Dower by joyning in a Fine with her Husband but if the Baron sole levy a fine and dyeth and five yeares passe the Feme is not bound so if Tenant in ancient demesne levy a fine he had possibility to have the Land againe if the Lord bring a Writ of desceit but he may release that possibility but
in any Court of Record it shall be intended of the foure Courts of Westminst propter excellentiam Page 249 Of what actions the Marshalsea holdeth plea ib. A Parson must be resident and what is a good excuse of it Page 250 Where the Father shall have the wardship of his daughter ib. If the daughter be marryed infra annos nubibiles and the Baron dye yet she may be in warde to the Queen ib. By the law the Testator must have a disposing memory Page 251 Where the lease and not the seisin must be traversed ib. He who claimeth by the first assignment shall not traverse the second Page 252 Where the Release of one Plaintiffe barreth the rest ib. VVhat act shall amount to a livery of seisin ib. The word King includeth all his Successors Page 253 Where the King shall have a fine for alienation ib Where Lapse shall not incur without notice Page 254 If the Q. present Ratione lapsus where she is Patron it is void ib. Acts transitory and locall must be done in convenient time Page 255 Where they must be hastened by request ib. What is a good revocation of uses Page 256 Every Lease must have a certaine beginning and continuance ib. Grant of a Copy-hold for three lives by Deane and Chapter good by 13. Eliz. Page 257 Where an Assignee may plead a Deed of License without shewing ib. The Construction of Alibi in a grant of rent charge Page 258 A condition of an intaile not to suffer a recovery is void ib. Where an accord with satisfaction is a good plea ib. So long as judgement in Debt is in force no new action lyeth Page 259 When the place is materiall the issue cannot be found elsewhere ib. Where a thing done beyond the Sea is triable here Page 259 260 Where the Vsurpor gaineth the inheritance against an Infant Page 260 Where collation putteth a man out of possession ib. An Incumbent shall not be moved if not named in the VVrit ib. A Peere cannot be Arrested for Debt Page 261 A difference betweene nobility by discent and by Marriage ib. The duty of the Officer upon an arrest ib. The K. grant good if he be not deceived Page 262 Payment of rent by a Termor giveth no seisin to have an Assize ib. In the Kings Case generall alleadging of seisin is good Page 263 To claime common Ratione commorantiae is not good ib. Tenant for life or yeares must prescribe in his name who hath fee ib. A custome for every inhabitant to have a way is good ib. The difference betweene a prescription and a custome Page 264 Six Moneths given to present according to the Kalender ib. By grant and render of the Demesnes the Mannor is destroyed Page 265 But otherwise it is if by act in Law as upon partition ib. Who may surrender and where it is requisit Page 266 The heire Female shall not forfeite the donable value ib. Where the purchasor shall avoid a Lease by fraud Page 267 If the Heire be Knighted in the life of his Auncestor no wardship Page 268 Where the Heire shall forfeite the double value ib. VVhat shall be collusion within Marlebridge c. 6. ib. Excellent Resolutions upon 32. H. 8. of VVills ib. The Lord may have a certeine summe Pro certo letae Page 269 Judgement in Debt against a jointenant who releaseth to his Companion that Moity is liable to the Judgement ib. Executors though not named are within diverse Statutes Page 270 THE SEAVENTH BOOKE SIx demonstrative conclusions resolved why Calvin the Postnatus ought to be answered Page 271 VVhere the Plaintiffe may choose in what County to bring his Action Page 273 The Common in Norfolke called Shack is good Page 274 Cases upon the Statute of 13. E. 1. of VVinchister for Hue and Cry and what alteration is made therein by 27. Eliz. c. 13. Page 275 VVhat acts a Gardian shall avoid but not the Lord by escheate Page 276 If one be to have a thing in consideration of an act to be done by him he must shew the performance of it Page 277 The Q Tenant Pur auter vie leaseth for yeares good without recitall Page 278 VVhat conditions are given to the Q ib. VVhat kind of Certificats are traversable Page 279 All wild Swannes in a Common River may be seised for the K. ib. A Swan-marke must be by grant of the K. or prescription ib. And he must have five Marks per annum by 22. E. 4. c. 6. ib. To what Debts the Statute of 33. H. 8. c. 39. extendeth Page 280 Processe in one Court and decree in another Bond for Covenants is within it ib. In what Cases Lands are extendable by the K. within 33. H. 8. Page 281 VVhat debts are not within that Statute ib. A rent issueth out of one acre and the other liable to the distresse ib. A rent may be seck and charge at severall times Page 282 Cases of Quare impedit VVhere a Quare impedit may be without naming the Patron Page 282 283 If the Plaintiffe in a Q. I. after appearance be Non-suite where it is peremptory and where not Page 283 VVhen the King hath a transitory title onely it may be lost ib. VVhere a demand of rent must be made precisely on the day Page 284 Discontinuance of Proces and what is revived by generall resummons and what by speciall ib. VVhat fine levyed by the King barreth the taile Page 285 VVhat Statutes bind the King ib. A dignity may be intailed and forfeited Page 286 The King cannot grant the penalty of a Statute to a Subject ib. A rent extinct shall be in esse to some purposes Page 287 A consideration may be averred which stands with the Deed ib. VVhere an estate taile may be with the words Of the body of Page 288 The sentence of Divorce being in force the issue before is a Bastard Page 288 Such sentence may be repealed after death of the parties ib. One Bill of reviver upon another not sufferable Page 289 THE EIGHTH BOOKE THe Charter of Creation of the Prince Duke of C. 11 E. 3. is an act of Parliament Page 291 The grant to the Patentees is not aided by the Statute of Confirmations Page 292 Five things requisit to maintaine an Action against an Inkeeper for Goods lost Page 293 VVhere the Husband shall be Tenant by the courtesie ib. VVho shall be said a common Barretor Page 294 VVho may assesse a fine for a contempt and what remedy for it Page 294 295 VVho shall avoid a feoffement by an Infant Page 295 Three manner of Privities ib. Lessor for life shall avoid a Lease for yeares made by Tenant for life ib. There were but two manner of Assizes at the Common Law Page 296 In an assize of a new Office the profit thereof must be shewed Page 296 297 A warranty is intire and barreth all upon whom it discends Page 297 Good matter upon the Statute of Glouc. c. 3. ib. The King hath three
Heires Males of his Body c. And if A. or his issue c. shall attempt c. to alien c. by which any estate shall be barred c. that after such attempt and before any act executed the use and Estate of him so attempting c. shall cease onely as to him so attempting in the same degree as if he were naturally dead and not otherwise and that then it shall be immediately to such persons to whom it should come by the intent of the Indenture c. C. dyes A. suffers a recovery B. enters c. adjudged he could not for this proviso is repugnant impossible and against Law for the death of Tenant in taile is not a cesser of the Estate taile but death without issue Males and by this reason the issue should have it in the life of the Father c. And for every discent c. Death naturall or civill is requisite and t is not materiall though Tenant in taile had no issue at the time of the breach for t was repugnant at the beginning and the estate taile doth not commence by the having of issue and a gift in taile upon condition that if the Donee dyes his estate shall cease is a void condition Also the proviso is void for the incertainty as a gift to two Et haeredibus is voide though a Warranty be made to them and their Heirs in Jermine Arscotts Case the like proviso was adjudg'd voide for be the proviso a condition or a limitation the intire estate ought to be defeated by it and an Estate in Land cannot cease for part and continue for the residue nor cease for one person and continue for another nor cease for a time and revive after The like judgement was betwixt Chomly and Humble but the Parliament or Law may make an estate voide as to one and good to another as Tenant in speciall taile levies a fine the issue is barred not the wife so a release by the demandant to the vouchee is good not by a stranger so if an Executor surrender a tearme to one respect t is extinct to another t is assetts c. And uses are within the Statute De donis though it speakes onely of Lands and Tenements and there shall be a Possessio fratris c. of them for they are guided by the Rules of the common Law Richill in the time of R. 2. and Thirning in the time of H. 4. Justices intended for to make a perpetuity but could not Shelleyes Case 23. Eliz Fol. 94. EDward Shelley leased for yeares and after Covenanted to suffer a recovery which should be to the use of himselfe and after to the use of A. for 24. yeares and after to the Heires Males of the body of the said E S. and the Heires Males of the said Heires Males c. E. S. dyes 9 of Octob. the first day of the Terme in the morning betwixt five and six a clock the recovery passes the same day and an Habere facias seisinam awarded the recovery was executed the 19 of Octob. 4 Decemb. the Wife of the Eldest Son before dead of E. S. was delivered of a Son named Henry Richard the second Son of E. S. entered and made a Lease c. Henry entred upon the Lessee who brought an Eject firmae and Judgement was given for the Defendant and t was resolved that if Tenant in taile suffer a common recovery and dye before execution that execution may be sued against the issue for the intended recompence in favour of the common assurance resolved that the revertion in judgement of Law is not in the recoveror before execution sued for the judgement is Quod recuperet seisinam which cannot be executed till entry or claime as 't is of a Common c. granted upon condition for when a man may enter or claime the Law will not put things in him till entry or claime The third and great point resolved was that the Uncle is in as by discent though he shall not have his age nor be in ward 1. Because the recovery being the Originall act had its Essence in the life of E. S. to which the execution hath retrospect 2. Because the use might have vested in E. S. if he were in life 3. Neither the recoverors by their entry nor the Sheriffe by making execution may make an Inheritance to whom they please 4. Because the Uncle claimed the use by the recovery and Indenture and by words of limitation not purchase Albanies Case 28. Eliz Fo. 111. A By Indenture infeoffed B. of two Acres to the use of A. for life the remainder in taile to C. the remainder in fee to D. with a proviso if E. dye without issue that A. at any time by indenture sealed c. in the presence of foure c. may alter c. any use c. A. of the one acre infeoffes F. and for the other Acre A. by Indenture renounces surrenders releases c. to B. C. and D. the said power condition authority c. E. dyes without issue A. by Indenture in presence of foure revokes the first uses and limits new resolved that by the feoffement the power to revoke as to limit new uses was extinct and by Wray chiefe Justice the future power may be released as a condition subsequent though the performance or breach cannot be done without an act precedent but as to this poynt the Court did not give their resolution but the whole Court agreed that if the power had beene present as t is usuall this might be extinct to any one who hath a free hold in possession reversion or remainder 'T was moved if the future power could not be released whether it might be defeated by the words of defeasance both being executory and 't was said that in all cases when any thing executory is created by a deed that the same thing by consent of all parties to the creation by their deed may be nullified as a warranty recognizance rents charge annuities covenant c. And of the same opinion was Wray chiefe Justice and the whole Court and judgement given according Chudleighs Case Or the Case of perpetuities Fo. 120. SIr Richard Chudleigh was seised in fee of the Mannor of D. and had issue foure Sonnes A. B. C. D. and 26º Aprill the third and fourth of Phillip and Mary infeoffed E. F c. in fee to the use of himselfe and his Heires of the body of G. then Wife of H. and after to the use of the performance of his Will for ten yeares immediately after his death and after to the use of the feoffes and their Heires during the life of A. the Eldest Sonne the remainder to the use of the first issue Male of the body of A. and the Heires of the body of the first issue Male and so to the second issue Male the remainder to the use of B. the second Sonne and the Heires of his body the remainder to C.
c. the remainder to D. c the remainder to the right Heires of himselfe Sir Richard Chudley died without issue of the body of G. 1º of the Queene the feoffees C. living by deed infeoffed A. in fee without consideration he having notice of the first uses A. hath issue a Sonne named S. and after I. and after infeoffes Sir I. C. with warranty S. died without issue c. I. enters c. agreed by all the Justices and Barons but two that the feoffement made by the feoffees which had an Estate for life devests all the estates and the future contingent uses also and though A. had notice of the first use 't is not materiall because the ancient uses were devested and this new estate cannot be Subject to the ancient uses which rose out of the ancient estate agreed that 27 H. 8. doth not extend to destroy uses otherwise then by execution and transferring the possession to them agreed by the most that 27. H. 8. doth not transferre the possession to any use but onely to uses In esse which doth appeare by the Statute for there ought to be a person In esse seised and also a use In esse for if there be onely a possibility of a use there cannot be an execution of the possession to the use the Statute sayes That the estate shall be out of the feoffees and that the estate shall be in such person which hath the use So that no Estate of the feoffees shall be transferred in abeyance and upon this t was concluded that contingent uses or in possibility may be destroyed or discontinued before that they come In esse as they might at common Law so the remainders limitted in use here shall follow the rule and reason of Estates executed in possession by the common law and if the estate for life here had beene determined by death before the birth of the Sonne the remainder in future should be voide though the Sonne were borne after for a remainder ought to vest during the particular estate or Eo instanti when it ends And t was holden by all that if the contingent use here had come In esse without alteration of the estate of the Land it should be executed by the Statute of 27. H. 8. Also it was holden by most that 27. H. 8. against the expresse Letter of it shall not be taken by equity because by preservation of contingent uses mischeives intended to be prevented shall be preserved and greater introduced Popham chiefe Justice said that by 27. H. 8. some uses in esse are executed presently uses in futuro agreeable to Law are executed if they come In esse in due time but uses not agreeable to Law are extirpated for the intention of the Statute was to restore the ancient common Law Five other points adjudged besides the principall matter 1. When Tenant for life the remainder being in taile to A. infeoffes the reversioner t is a forfeiture for it devests the estate in remainder so if there be Tenant in taile the remainder in taile ctc. and the diversity is when the privity and estate is sole and immediate when not 2. If A. hath issue B. and C. infants and a lease is made to A. for life the remainder to B. in taile the remainder to C. in taile A is diseised and releases to the disseisor with warranty and dyes this discends upon B. within age B. dyes the warranty discends upon C. within age C. comes to full age and three yeares after enters his entry is lawfull for he might enter in the life of his Ancestor and if he doth not enter yet the warranty shall not binde him otherwise it is when he is put to action and Caveat that after his full age he doth not suffer a discent before entry 3. If a disseisor c. who hath a defeasible title in a Mannor grant a voluntary estate by Coppy being forfeited or escheated to him this grant shall not binde him that hath right after a recontinuance of the Mannor but admittances which a disseisor c. makes to Coppy holds are good for they are in a manner judiciall acts and shall binde the disseisee 4. That an estate made to one and his Heires during the life of B. is but an Estate for life upon which a remainder may depend 5. That an Estate made to A. and his Heires of the body of Jane S. is an Estate taile against the opinion of Ascugh 20. H. 6. 36. Anne Maiowes Case 35. Eliz. fo 146. FEeoffor and Feoffee upon condition by Deed joyne in a grant of a rent charge to C. the condition is broken the Feeoffor reenters the grantee distraines the Feoffor brings a Replevin Resolved that the rent remaines to the objection that 't is the grant of the Feoffee and the confirmation onely of the Feoffor and a confirmation cannot make a conditionall estate absolute nor alter the quality of it except it inlarge it as if a Feoffor confirme the estate of the Feoffee upon condition before the condition broken it doth not make it absolute Answered and agreed by the Court that there is a diversity when the estate of him to whom the confirmation is made is upon an expresse condition there the confirmation doth not toll the condition but if such feoffee infeoffe another without condition there a confirmation to the second feoffee extincts the condition Feoffee upon condition grants a rent in fee the feoffor confirmes it to him and his heires and after enters for condition broken yet the rent remaines and by Littleton every fee simple land may be charged one way or other Concurrentibus his c. and the case 11. H. 7. is all one with our case and here 't is the stronger because the grant and confirmation were by the same Deed so that the rent was never subject to any condition The Rector of Chedingtons case 40. Eliz. fo 153. 2. E. 6. the Rector of Ched demised the Rectory to El Elderker for fourescore yeares if she should live so long and if she dyed within the said terme or aliened that then her estate should cease and then by the same Indenture demises the premises to R. E. for so many yeares as shall remaine unexpired after the death or alienation of El. for the residue of the terme of fourescore yeares if he shall live so long without alienation c. And if he dye or alien within the said terme then his estate shall cease and then by the same Indenture he grants the premisses to W. for so many yeares of the said terme of fourescore yeares as remaine if he lives without alienation and if W. dyes or aliens within the said terme that his estate shall cease and then he grants c. during so many of the fourescore yeares which shall be unexpired to T. his executors and assignes which Indenture and estate was confirmed by the Patron and Ordinary the Rector dyes T. dyes W. dyes and 17. Eliz. Ellerker
Lands to the use of himselfe and of the heires males of his body And for default thereof to the use of the Queene her heires and successors After the Tenant in tayle in possession suffereth a common recoverie with voucher And whether it was a barre to the issue in tayle was the question And it was adjudged that the issue in tayle was barred for good considerations are too general to raise any use without speciall averment that valuable or other good consideration was given Resolved that the Land should continue in his name and bloud is not a consideration to raise a use to the Queene though the limitation to her were for the preservation of the tayle against discontinuances and barres for there wants quid pro quo Resolved if he had said in consideration that the Queene is the head of the weale publique and hath the care and charge as well to preserve peace as for to repell hostility yet 't is no good consideration for Kings ex officio ought to governe their Subjects in tranquillity which is implyed in the word King And admit the consideration had been sufficient to raise a use to the Queene yet that would not preserve the estate tayle by force of the Act 34. H. 8. for no estate tayle is preserved by the said Act except the same estate tayle be of the creation or provision of the King and not where the estate tayle is given or created of a common person without provision of the King as may appeare by the preamble of the Act. Resolved that before the Statute of 34. H. 8. a common recovery barred a tayle created by the King Lanes Case 29. Eliz. fo 16. THe Queene seised of a Mannor in right of her Crowne by her Steward granted coppie-hold Lands parcell thereof to one by coppie according to the custome in Fee And after the Queene under the Exchequer Seale made a Lease of the same Lands to another for 21. yeares who granted the same Tearme to the coppie-holder and after the Queene reciting the Lease for yeares granted the reversion thereof in Fee the Tearme of 21. yeares expired The Patentee of the reversion entreth upon the coppie-holder and the entrie was adjudged good Resolved that the Lease under the Exchequer Seale was good by the usage there for the course of every Court is as a law of which the common law takes notice without alledging of it in pleading and every Court at Westminster is bound to take notice of the Customes of other Courts otherwise of Courts in the Countrey and the order of Exchequer is to make Leases by Committimus such land Resolved that the estate of the Coppie-holder was determined by the acceptance of the Lease for yeares And so it was adjudged against the Coppie-holder for notwithstanding that the Coppie-holders estate is taken to be but an estate at will yet the custome hath so established the estate of the Coppieholder that he is not removeable at the will of the Lord so long as he performes his customes and services and by the same reason the Lord cannot determine his interest by any act that he can doe And so it hath been adjudged many times And the aceptance of this Lease was the proper act of the Coppie-holder Resolved that by the severance of the free-hold from the Mannor the Coppiehold estate is not extinguished Baldwyns Case 31. Eliz. fo 23. THings which lye in grant and take their essence and effect by delivery of a Deed without other ceremony as rent or common out of Lands c. by the premisses of the Deed to one and his heires habendum to the grantee for yeares or life this habendum is repugnant to the premisses for the Fee passeth by the premises by the delivery of the Deed and therefore the habendum is voyd And when a man giveth Lands by Deed in Fee by the premisses habendum to the Lessee for life there the habendum is voyd and when livery is made the effect of the Deed shall be taken the most strongly against the Feoffor and the best for the Feoffee When a ceremony is requisite to the perfection of an estate in the premisses limitted and to the estate limitted in the habendum no ceremony is requisite but onely the delivery of the Deed although the habendum be of meaner estate then the premisses the habendum shall stand good and qualifie the generalitie of the premisses as a Fee granted in the premisses habendum for yeares it is for yeares and no inheritance Note There is a diversity betwixt the estate implied in the premisses and expressed as if A. grant a rent to B. this is an estate for life but if the habendum be for yeares this is good and qualifies the implication of the premisses Case of Bankrupts 31. Eliz fo 25. REsolved that a grant or assignement of goods by a Bankrupt after the Commission awarded which is matter of Record of which every one ought to take notice and though to a Creditor in satisfaction of his debt is voyd and that a sale of such goods by the Commissioners is good Which sale by the Statute of 13. of the Queene ought to be equall to every one rate and rate like according to the quantity c. And the Court resolved that the proviso in the said Statute concerning gifts bona fide doth not make any gift good but excludes them out of the penalty c. Commissioners may sell by Deed without Inrollment and though they have not seene the goods agreed that the distribution ought to be severall not joynt for the one debt may be greater then the other and in this case the Jury found that the Commissioners sold the goods to three Creditors joyntly but further that the Bankrupt was indebted to them in 273. pounds which shall be intended a joynt debt and so good Resolved that the act giveth benefit to such as will come and not to them that refuse vigilantibus non dormientibus jura subveniunt and every Creditor may take notice of the Commission being matter of Record Bettisworths Case 33. Eliz. in communi Banco fo 31. A Lease for yeares was made of one Messuage one Close called Raynolds and of divers other Lands in Dale and afterwards the Lessee being in the house the Lessor entred into the same Close and maketh a Feoffment of the Messuage and of the Lands therewith demised and maketh livery in the same Close and afterwards the Lessee reentreth into the said Close And if this was a good Feoffment and livery of seison of the said Close the Lessee nor any for him being in the said Close was the question And it was adjudged that the livery and seison was voyd as well for the Close as for the Messuage and the other Land therewith demised For the Possession of the Messuage which is his Castle is a good possession of the Lands therewith demised and it matters not whether livery be made on the Land within view of the
prescribe In modo decimandi but not In non decimando And the reason is because he is not except in speciall Cases capable of Tythes at the common Law before the Statute of 32. H. 8. Cap. 7. And therefore without speciall matter shewing it shall not be intended that he hath any Lawfull discharge and in favour of the Holy Church although it may have a lawfull comencement the Law will not suffer this prescription In non decimando to put it to the Tryall of lay men which sooner will straine their conscience for their private benefit then render to the Church the duty which belongeth to it A spirituall person that was capable of Tythes at the common Law in pernancy may prescribe to be discharged of Tythes generally or to have a portion of Tythes in the Land of another Before the Counsell of Lateran every man might give his tythes to any spirituall person that he would and if the Lands of the Bishop were discharged in his hands absolutely by prescription the demising it to a lay man cannot make it chargeable and the Bishop might reserve the greater Rent And in discharge of Tythes the Judges of our Law doe know that the Ecclesiasticall Judges will not allow any such allegation and therefore a Traverse Absque hoc quod judices placitum c. recusarunt is insufficient for the refusall is not materiall for the party might have a prohibition before any plea pleaded by him but in some Cases the refusall is traversable as t was adjudgd in Morris and Eatons Case where t was pleaded that the plaintiffe did not read the Articles c. and that the Ecclesiasticall Judge refused this Plea But the truth is a man may prescribe that hee and all others whose estate he hath in the mannor of D. time out of remembrance have paid to the parson of C. for the time being one certaine pension yearly for the maintenance of Divine service there in contentation of all Tythes renewing or happening within the same Mannor and prescribe in respect of the pension payd c. to have all the Tythes within c. and this was adjudgd good in Banco Regis Mich. 39. Et. 40. El. Rotulo 199. And that a lay-person may sue for the Tythes c. For at the beginning it shall be intended that the Lord was seised of the whole Mannor before any tenancy was derived out of the same and then by composition or other lawfull meanes the Lord had all the Tythes within the Mannor for the said Pension paying to the parson and the Law intends it was for Divine service Et pro bono Ecclesiae the reason of whch intendment is the continuall usage time out of remembrance And upon such speciall matter a man might have Tythes as appurtenant to a Mannor for he prescribes in a Que estate in the Mannor and therefore cannot have them in grosse but t was adjudged Winscombs Case in a prohibition that a man cannot prescribe generally in him and all those c. to have Tythes appurtenant to a Mannor without speciall matter shewne because Tythes are due Jure divino The Arch-Bishop of Canterburies Case 38. Of the Queene fo 46. A Religious house in M. was given to E. 6. by the Statute of 1. E. 6. a Rectory which was impropriated to it was granted to the Arch-Bishop of Canturbury who leased to the Defendant and Land within M. parcell of the said Colledge came to the Lord Cobham and from him to the Plaintiffe who shewes that the Master of the Colledge was seised of the said Land and Rectorie Simul semel as well at the making of 31. H 8. as of 1. E. 6. Resolved that this Colledge came to the King by 1. E. 6. onely for when 31. H. 8. speakes of dissolution renouncing relinquishing forfeiture giving up which are inferior meanes by which c. or by any other meanes cannot be intended of an act of Parliament which is the highest manner of conveyance that can be and the makers would have placed this in the beginning if they had intended it Bishops are not included within 13 of the Queene which begins with Colledges Deanes and Chapters c. Also 1. E. 6. Enacts that all Colledges by this Parliament shall be in actuall possession of the King which last act being of as high nature as the first it cannot come to the King by 31. H. 8. and it was never pleaded that of Colledges which came by 1. E. 6. the King was seised Vigore of the Statute of 31. H. 8. Resolved that neither the Act nor the meaning of 31. H. 8. extends to other Colledges then to those which came to the King by 31. H. 8. for it should be absurd that a Branch of the act of 31. H. 8. should extend to a future Act of which the makers of 31. without a spirit of prophecy could not have foreknowledge and the Act of 31. concludes in as large manner as the late Abbots c. which late as it hath been agreed extends onely to those to be dissolved by 31. Resolved admitting that the Colledge had come to the King by 31. H. 8. that such a generall allegation of unity of possession of the Rectory and the Land with it was not sufficient for no unity shall be sufficient but lawfull and perpetuall unity of possession time out of minde as 't was adjudged in Knightly and Spencers case and that the generall allegation of the plaintiffe that the Master of the Colledge at the making of 1. E. 6. held the Land discharged is not good without shewing how either by prescription composition or other lawfull meanes as 't is adjudged in the Bishop of Winchesters case otherwise if the Land had come by 31. then by force of the said branch of discharge such generall allegation had been good Resolved that no Ecclesiasticall house except religious was within the Statute of 31. H. 8. Resolved that though 1. E. 6. saith that the King shall have the lands of Colledges in as ample and large manner as the said Priests c. enjoyed the same yet these generall words doe not discharge the land of any tythes for they doe not issue out of the land for a Prior had tythes against his own Feoffment of the Mannor and 't is no good cause of prohibition to alledge unity of possession in a Colledge which came to the King by 1. E. 6. as 't is upon 31. H. 8. in Abbyes c. For the Statute of 1. E. 6. hath no such clause of discharge of payment of tythes as 31. hath and therefore such perpetuall unity will not serve upon 1. E. 6. So 't was likewise resolved betwixt Greene and Buffkin Sir Hugh Cholmleys case 39. of the Queene fo 50. TEnant in Taile the remainder in taile the remainder bargaines and sells the Land and all his estate to J. S. to have for the life of Tenant in taile the remainder to the Queene c. upon condition that the
accordingly and if no request be made and the Feoffee or Grantee that ought to performe the condition dye the condition is broken Yet this generall rule admits an exception for here in case of an advowson he hath not time during his life though no request be made but upon contingency to wit if no avoydance fallin the meane time for if the Grantee stay till the avoydance fall Ipso facto the condition is broken for B. cannot have all the presentations during his life which was the effect of the grant and the Advowson is come into another plight then t was But where the day is certaine for the performance and the party dye before the condition is discharged because the performance is become impossible by the Act of God and therefore when a day certaine is appointed t is good that the Heire of the feoffee be named in the condition Another diversity was also agreed when t is to be performed to a stranger he ought to request the stranger in convenient time for to limit a time when it shall be done but if it be to the Feoffor himselfe he ought not to performe it before request Another diversity was taken by some when the feoffee dyes and when the feoffor dyes for in the one case the condition is broken in the other not Binghams Case 43. of the Queene fo 91. R. Bingham the Grandfather held the Mannor of B. M. of Sir Jo Horseley as of his Mannor of H. and levyed a fine to the use of him and his Wife for life and after of R. the Father his Sonne and Heire in taile and after to the right Heires of the Grand father R. the Father dyed the remainder in taile discended to R. his Sonne within age Sir I. H. suffered a recovery of the Mannor of H. to the use of himselfe and his Wife in taile and after to Sir R. H. his Sonne and Heire in taile after to the Heires of Sir I. Sir I. and his Wife dyed without issue Sir R. enters R. B. the Grandfather dyes by which the reversion in Fee discended to R. B. the Wife of Robert dyes R. within age enters and Leases c. Resolved that the use limitted to the right Heires of the Grandfather upon the fine is a reversion in the Grandfather expectant upon the taile not a Remainder so t was resolved in Fenwick and Mitfords Case and so t was resolved in the Earle of Bedfords Case Resolved that Sir R. H. shall not have the ward of the Land for the reversion in Fee is holden of him and not the Taile though both discend from the same Ancestor for the taile cannot be drowned and if Tenant in taile grant over the reversion he shall hold the Taile of his Grantee and though the Seigniory of the taile be suspended yet the Donee hath two distinct estates and the reversion is as a Mesne betwixt the Donee and the Lord and the Lord is not defeated for the Law gives no wardship in such cases and if it were admitted that by the unity of Tenure betwixt the Donee and reversion t was determined yet nothing shall be holden of the Lord but the reversion and in some cases the Donee in taile shall hold of no body as a gift in taile the remainder to the King Resolved if the Grandfather were Tenant for life the remainder to the Father in taile the remainder to the Father in fee the Father dyes his Heire within age and Sir I. H. grants the Seigniory to Sir R. H. and the Grandfather dyes that Sir R. H. shall not have the ward of the Heire because R. the Father did not hold of him nor any of his Ancestors the day of his death nor the Taile was not within the see and Seignory of Sir Ra. or any of his Ancestors at the death of R. the Father and the Writ saith Praecipe c. Eo quod terram illam de eo tenuit die quo obijt And though that during the life of Tenant for life the Heire of the remainder shall not be in ward because Tenant for life is Tenant to the Lord yet the death of Tenant for life is not the cause of ward but the removing of an impediment as in Paget and Caries Case Tenant for life commits wast and after Tenant for life in remainder dyes he in remainder in fee shall have wast T was said when two accidents are required to the consummation of a thing and the one happens in the time of one and the other in the time of another neither the one nor the other shall have benefit by it as the Tenant ceases for a yeare the Lord grants his seigniory and then the Tenant ceases for another yeare neither shall have a Cessavit which was agreed So Lacies Case Trin. 25. of the Queene who gave a mortall wound upon the sea of which the party dyed upon the Land yet he was discharged because the stroake was upon the Sea the death upon the Land so that neither the Admirall nor a Jury can inquire of it and t was said when diverse accidents are required to the consummation of a thing the Law more respects the Originall cause then any other A man presents to a Church in time of Warre notwithstanding the party be instituted and inducted Tempore pacis all is voyd So the Law more respects the death of him in the remainder the Originall cause of wardship then the death of Tenant for life which is but Causa sine qua non and rather a removing of an impediment then a cause so t was resolved that neyther the one nor the other shall have the ward Resolved that Sir Ra. should not have the third part of the Land by 32. 34. H. 8. for though R. the Grandfather had limitted the use to the Father which is within the Statute yet when R. the Father dyes in the life of the Grandfather the Statute extends no further for the Heire of the Father who is in by discent shall be in ward by the common Law not by the Statute and if the Statute should extend to the Son and Heire of him in remainder by the same reason it should extend to all the Heires of him in remainder In infinitum THE THIRD BOOK The Marques of Winchesters Case 25. of the Queene fo 1. LIonell Norris and Anne Mills were seised of the Mannor of M. and to the heires of the body of L. a common Recovery is had against L. without naming Anne H. Norris being in remainder in taile is executed for Treason and 't is enacted that he shall forfeit Mannors c. uses possessions offices rights conditions and all other hereditaments L. dyed without issue Anne dyed the Queene brought error against the Marques of Winchester heire of the survivor of the recoverors the error was that the originall Writt of entry wants the defendant pleaded that 14. of the Queene shee gave and restored to the Lord Norris Sonne and heire of H. Norris
land of M. was lost by the Statute of 4. and 5. P. and M. ca ' 8. Resolved that there were two manners of custodies or Gardianships the one by the common law the other by the Statute at common Law foure manner of Gardians viz Gardian in Chivalry Socage Nature by Nurture The first two are fully described in our Bookes but great controversie was at barre for Gardian by Nature Some held that the Father onely shall have the custody of his sonne and heire apparent within age not the Mother Grandfather c. Also that the Father shall not have the custody of his daughter and heire for it ought to be such an heire as shall continue sole and apparent heire as the Father shall not have the custody of the youngest sonne in Borough English for tenure in Chivalry Others affirme that not onely the Father but every auncestor male or female shall have the custody of his heire apparent male or female Trespas quare 〈◊〉 consanguinium haeredem of the plaintiffe cujus maritagium ad ipsum pertinet c. rapuit c. lyes The Mother though she had no land brought ravishment of ward of J. her Sonne and heire against the grandfather who had land that might descend By the Court both erre for 't is true that every auncestor shall have trespas or ravishment of ward against a stranger for his heire male or female and the Writ shall say Cujus maritagium ad ipsum pertinet and good reason for the establishment of his house consists upon providing of a convenient marriage for his heire apparant and it matters not of what age such heire is but such action lyes not against gardian in chivalry by any of his auncestors but the Father So the Court resolved here the Mother could not be gardian in Socage if the land had descended to the daughter nor by nurture because she was above 14. but the common Law gives remedy against a Stranger as aforesaid Resolved here the Mother shall have the custody within the provision of the Act which hath ordained two new manners of custodies 1. By reason of nature 2. By assignation the first the Father after his death the Mother the second by assignation of the Father by his will or any act in his life See the Booke at large for the exposition of this Statute Resolved that the assent of the husband was not materiall for the Statute hath annexed the custody to the person of the Mother jure naturae which is inseperable and by marriage cannot be transferred to the husband the Father shall not forfeit the wardship by outlawry nor shall his Executors have it Resolved though she departed out of the house sixe houres before the contract yet in judgement of Law the Mother had the custody at the time of the contract for 't is inseperably annexed to the person of the Mother Resolved that by this devise the two daughters wete tenants in common in taile by these words equally to be divided though they never make partition in facto and so it hath been often adjudged Resolved that the husband and wife damsell had good title upon this verdict against the other daughter for by these words to the next of kin to whom the inheritance should c. come after her decease during the life of such person who shall so contract c. it seemes the daughter shall not have the forfeiture for though she be of the blood yet if M. dye her issue shall have the land if without issue the Mother in the remainder To the objection that the Mother cannot have it for she is not of the blood of the daughter but econtra Father or Mother are not next to whom administration shall be granted and land shall escheate rather then it shall goe to Father or Mother Resolved often against 5. E. 6. that the Father or Mother are next to whom administration may be granted and Littleton says that the Father is neerer of blood then the Uncle and therefore the Father shall have a remainder limitted to the next of blood of the Sonne but he shall not have an inheritance by discent from the Sonne for a Maxime prohibits it And 't was said at barre if he in reversion had been brother of the halfe blood he might have entered as Proximus de sanguine yet none of the halfe blood could inherit See the Booke at large where is excellent learning of discents as also the learning of Possessio fratris c. Resolved by the Court that it doth not come in question who shall enter for the forfeiture by the Statute for the issue was joyned upon a collaterall point whether the Mother had the custody at the time of the contract and the finding of the Jury is not materiall and therefore though the Plaintiffe who was lessee of the husband of the damsell as appeared had good title against the defendant being lessee of the husband of the other Sister yet because the issue was found against him judgement was given Quod nihil capiat c. Boytons case 35. Eliz. in Banco regis fo 43. A Writ of cap ad satisfaciendum is retornable at Westminster die Lunae prox post Crastin Animarū the partie is arrested the Sheriffe is not bound to bring the prisoner in recta Linea from the place where he was arrested or from the Countie But if he have the prisoner in Court at the day of the returne being never out of his custody in the meane season it is good But if a Sheriffe or a Bayliffe assent that one who is in execution and under their custody to goe out of the Gaole for a time and then to returne yet although he returne at the time it is an escape And so it is likewise if a Sheriffe suffer him to goe with a Bayliffe or a Keeper for the Sheriffe ought to have him in arcta custodia the Statute of Westminster 2. cap. 11. says Quod carceri manucipentur in ferris So as the Sheriffe may keepe him in yron and fetters to the intent that they may sooner satisfie their Creditors The Sheriffe upon a Habeas corpus for one in execution may bring the partie what way he will so as he have his bodie at the day according to the Writ If one in execution escape out of the Gaole and fly into another Countie the Sheriffe upon fresh suite taketh him again before any action brought against the Sheriffe the Judges have adjudged this no escape and if one in execution escape de son tort and be taken againe he shall never have an audita querela because a man shall not take advantage of his own wrong Sir George Brownes case 36. of the Queene fo 50. ISsue in speciall taile the remainder to himselfe in fee in the life of his Mother tenant in speciall taile levies a Fine in truth with Proclamations though they were not found to Sir G. B. the Mother living the Sonne leased for three lives
which was not warranted by 32. H. 8. upon which Sir G. B entered Resolved that the lease for three lives though without warranty was within 11. H. 7. which saith discontinue alien release or confirme with warranty for the intent of the Statute was to prohibit not onely every barre but every manner of discontinuance which puts the heire to his reall action and because a release or confirmation is no discontinuance without warranty the warranty referres to them to make them equivalent to an estate which passeth by livery Note the title of the Act Discontinuance of right or estate also in the Act 't is said If no such discontinuance warranty nor recovery had been so that discontinuance stands in equall degree with warranty Resolved that if the issue had granted his remainder in fee onely and not barred his taile he might have entered by the words of the Act for the forfeiture which saith Every person to whom the interest c. title or inheritance after the decease of the woman should appertaine may enter and enjoy c. As if no such discontinuance had been made and if no such had been the land should discend to the issue Resolved that in this case Sir G. B. shall enter for if no discontinuance had been he should injoy it against Anthony the issue and all the heires of his body though the Fine be levied in the life of the auncestor for 32. H. 8. says In any wise intailed to the person so levying the Fine or to any of his auncestors and though it worke part by conveyance part by conclusion yet ' the taile being extinct by the Fine Sir G. B. in remainder shall enter The same Law in this case though the Fine were without Proclamations for the issue against his Fine cannot enter but the entry of the conusee is lawfull Anderson said where 't was invented to make an evasion out of this Act that a woman should accept a Fine come ceo c. and render for a thousand yeares pretending this not within the words discontinue alien release with warranty c. that this was an alienation within the intent of the Act or otherwise the Statute should serve for nothing and so it hath been resolved Rigewaies Case 36. El. in Banco regis fol. 52. IT was resolved pro tot Cur. although the prisoner in execution escape out of view yet if fresh suite be made and he be taken againe in recenti insecutione he shall be in execution otherwise at the turning of a corner or by entring into a house or other meanes the prisoner may be out of view And although he fly into another Countie yet because the escape was of his own wrong whereof he may not take advantage the Sheriffe upon fresh suite may take him there and he shall be in execution But if the Plaintiffe bring his action against the Sheriffe upon the escape before that the Sheriffe take him or if the Sheriffe doe not make fresh suite yet in both these cases the Sheriffe may take him and keepe him in his custody untill he make agreement with him or he may have an action of the case for his wrongfull escape And although the defendant be taken upon a cap ad satisfaciendum and escape yet if the Writ be not returned and filed the Plaintiffe may have a new cap ad satisfaciendum against him and take him againe and he shall not take advantage of his owne wrong But if the Plaintiffe will he may charge the Sheriffe with the escape if he did not take him againe in fresh suite before the action brought and when the prisoner escapes of his owne wrong and be taken againe he shall never have an audita querela against the Sheriffe But it is otherwise if he escape with the consent of the Gaoler then he may not take him againe and if he doe then he may have an audita querela Resolved that the barre was insufficient for the plaintiffe counted of an escape in London and the defendant justifies the retaking in Devonshire so that the escape at London was not answered but the plaintiffe not denying the fresh suite but by Protestation relying upon this that he was out of view 't was adjudged against him but if he had demurred upon the barre he should have had judgement Resolved that after Demurrer there shall not be a Repleader for the parties by mutuall consent have put themselves upon the judgement of the Court and therefore without their consent they cannot repleade and so severall times adjudged Lincolne Colledge case 37. 38. of the Queene fo 59. HUsband seised to him and to his wife for life and to the heires of the body of the husband dyed the issue in the life of the wife then tenant of the freehold for so the pleading was which shall be intended by disseisin for no surrender or forfeiture was alledged 4. H. 8. Suffered a recovery with single voucher by agreement that the recoverors should infeoffe L c. to divers uses and that the wife should release to them with warranty which was done according 11. H. 8. The wife dyed after the issue dyed after his issue in the third degree entered the question was whether the collaterall warranty should binde the recovery did not come in question for by the pleading it shall be intended that he was seised by other title then by the taile so the single voucher not materiall Resolved that though the first branch of the Statute of 11. H. 7. says that the warranty shall be voyd yet the clause following and that it shall be lawfull c. to enter being annexed to the first expounds the generality of it and though he to whom the interest c. after the death of the wife appertaines may avoyde it by entry yet 't is in force against all others and so the Judges have expounded other Statutes 8. H. 6. All Outlawries shall be voyd except a Capias be awarded against the party in the County where c. yet this ought to be avoyded by error The Statute of 1. of the Queene ordaines that all grants c. by a Bishop in other manner then c. shall be utterly voyd but 32. 33. of the Queene betwixt Sale and the Bishop of C. and L. a grant of a next avoydance of a Church not warranted c. was not voydable against the Bishop himselfe but onely against his Successors And with this resolution agrees 27. H. 8. upon the same Statute of 11. H. 7. Resolved that this warranty was out of the intent of the Act which onely restraines warranty which prejudices the heire in taile or those in remainder but when the warranty c. of the wife is but for to perfect and corroborate the estate assured by the issue himselfe c. 't is not restrained by the Act for it shall be intended to the benefit of the heire which is the reason that a common recovery is not restrained by W. 2.
for the intended recompence and if the wife and the issue had joyned in a Fine this had barred the taile so if the wife had surrendered the issue might have suffered a recovery H. 39. of the Queene the case was that the younger Sonne tenant in taile by devise was vouched in a recovery suffered by a woman tenant for life by the same devise and this was to the use of the vouchee and his heires who dyed and 't was adjudged that the Sister of the vouchee by the intire bloud shall have it not the elder brother that the recovery was not within 14 of the Queene though suffered by tenant for life and the Statute says that it shall be utterly voyd for 't was not the intent that the Act should extend to a recovery in which he in remainder in taile was vouched who had an estate that might continue for ever and had the power to docke all the remainders so here this Statute doth not extend to this warranty because c. Resolved when the first issue disables himselfe for to take advantage of the forfeiture and dyes his issue shall never take benefit of it because he was not in rerum natura nor had the immediate interest at the time and this was Sir George Brownes case before where the issue in taile in the life of his Mother tenant in speciall taile levied a Fine without proclamations and here if error were in the recovery the warranty barres him of his action because he himselfe by his own act hath barred his entry But here if the wife had released c. after the death of the issue his issue might have avoyed the warranty Note Reader it seemes to me if in such case a woman levies a Fine or suffers a recovery though the daughter enters or not and though she joynes in the Fine or is vouched in the recovery or by any other act disables her selfe yet the Sonne borne after shall take advantage of it for entry upon this Act of 11. H. 7. is not like entry upon the Statute of 6. R. 2. ca ' 6. For there the daughter by expresse words hath it as a perquisite but upon 11. H. 7. per formam doni Resolved if tenant in taile in of another estate suffer a common recovery and a collaterall auncestor releases with warranty to the recoveror after the recoveror makes a Feoffement to uses which are executed by the Statute of 27. H. 8. and the auncestor dyes though the estate be transferred in the post before the discent of the warranty yet it shall binde and the terr-tenants shall Rebutt See excellent learning upon this point where an estate transferred in the post before discent of the warranty shall binde where not and where there shall be Rebutter in such case where not Pennants case 38. of the Queene fo 64. LEase for yeares upon condition that the lessee shall not assigne c. without assent of the lessor he assignes c. the lessor not having notice of the assignement accepts the rent due after and enters it was adjudged for the lessor his entry lawfull for that the condition being collaterall the breach whereof may be so secretly contrived that it is not possible for the lessor to have notice thereof and notice in this case is materiall and issuable for otherwise the lessee might take advantage of his owne fraud But if a man make a Lease for yeares rendring rent upon condition if the rent be not paid to reenter In this case if the Lessor demand the rent and the same is not paid if after he accept the rent before the reentry made due at another day he hath dispensed with the condition for there the condition is annexed to the rent and he having made demand of the rent well knew the condition was broken but although in this case that he accept the rent due at that day for which he made the demand yet he may reenter for as well before as after his reentree he may have an action of debt for the rent upon the contract between the Lessor and the Lessee If the Lessor distraine for the rent for which the demand was made he hath affirmed the Lease for after the determination of the Lease he may not distraine for rent It was also resolved that as well in case of the condition annexed to the rent as in case of a condition annexed to any collaterall act if the conclusion of the condition be that then the Lease for yeares shall be voyd there no acceptance of the rent due at any day after the breach of the condition will make the voyd Lease good Resolved that as a voidable Lease cannot be affirmed by word for money c. so the acceptance of a rent which is not In esse nor due to him which accepts it doth not affirme the Lease as a gift to a Husband and Wife and to the Heires of the body of the Husband the Husband dyes the issue accepts the rent of the Lessee of the Husband during the life of the Wife the Wife dyes yet the issue shall avoyd the Lease for no rent was due And there is a diversity betweene a Lease for life and for yeares in case of a lease for life though the conclusion of the condition be that it shall be voyd yet acceptance of a rent due after the breach shall affirme it for the freehold being created by livery cannot be determined before entry If the successor accept the rent upon a Lease for yeares of a Parson Vicar Prebend 't is worth nothing for 't is voyd by death otherwise of a Lease for life But if the successor of a Bishop Abbot or Prior accept the rent upon a Lease for yeares he shall never avoyd it for 't was voydable onely Note Reader it seemes to me if upon a Lease for life the Lessor accepts the same rent which was demanded he hath affirmed the Lease for he cannot accept it as due upon any contract as upon a Lease for yeares for when he accepts it he cannot have an action of Debt for it but his remedy was by Assise if he had seisin or by distresse but after reentry he may have an action of Debt If he that hath a rent service or rent charge accepts the rent due at the last day and therfore makes an acquittance all the arrerages due before are thereby discharged and so it hath beene adjudged In Hopkins Mortons Case 10. El. Dyer A man is not bound to pay an annuity without an Acquittance but a rent service or rent charge he is If the Lord accepts the rent or service of the Feoffee he loses the arrerages in the time of the Feoffor though he makes no acquittance for after such acceptance he shall not avow upon the Feoffor at all nor upon the Feoffee but for the arrerages which incurred in his time otherwise where the Feoffor dyes and there is such an acceptance But acceptance of rent or service by
House and Tenant at will of Land and Tenant by coppy of other Land within the Mannor of S. to Fermor leased all for life to I. S. and also seised of other Land there in Fee levyed a fine with Proclamations of all Messuages and Lands which comprehends all those leases and also his inheritance by covin to dissinherit his lessor and after the fine alwayes continues in possession and payes the severall rents to F. The lessee for life dyes the yeares expire S. claimes the inheritance Resolved that the Lord of the Mannor was not barred by the said fine 1. The makers of the Statute of 4. H. 7. never intended that a fine levyed by Tenant at will yeares or Coppy which pretend no Inheritance nor title to it but intend the disherison of the Lord c. should barre them of their inheritance and where the Statute sayth That Fines ought to be of greatest strength to avoyd strife and debate This Feoffement and fine by the Lessee shall be the cause of strife where none was before 2. The Statute doth not intend that those who of themselves without such fraud could not levy a fine to barre those which had the freehold and inheritance should be inabled to levy a fine by making of an estate to another by practise and fraud 3. If doubt be conceived upon an act of Parliament 't is to be construed by the reason of the common Law and that so abhorres fraud and covin that all acts as well judiciall as others and which of themselves are lawfull and just yet being mixt with fraud and deceit are tortious and illegall If a Woman intituled to have Dower which is favoured in Law by covin causes a stranger to disseise the terretenant to the intent to bring Dower against him and recovers accordingly 't is all voyd So if a Feme covert or Infant much favoured in Law of covin causes another to disseise the discontinuee and infeoffe them they are not remitted Sale in Market overt shall not binde if the Vendee had notice that the property was to another or if the Sale be by covin the Law hath ordained the common Bench as a Market overt for assurance of Land by fine for it sayth Finis finem litibus imponit yet covin shall avoyd them A Vacat was made in Banco of a recovery had by covin 33 34. of the Queene adjudged where Tenant for life levyed a fine with Proclamations and five yeares passed and he dyed that the Lessor shall have five yeares after his death for though the Statute saves the right which First shall grow and the right first accrued to the Lessor by the forfeiture yet because the Lessor by covin of the Lessee might be barred for he expected not to enter till after the death of the Lessee 't is no barre and namely when the Lessee hath Land of Inheritance in the same Towne as in this case so 't was agreed in the same case if the Feoffee of the Lessee for life hath Lands in the same Towne and levys a fine c. the Lessor shall have five yeares after the death of the Lessee for he knew not of what land the fine was levyed not being party to the Indenture or agreement c. So the Judges have construed the act against the Letter for Salvation of the Inheritance of him in reversion And 't was said if the Feoffee of a Lessee for yeares who made a feoffement by practise hath Land in the same Ville and levy a fine and the Lessee payes the rent to the Lessor it shall not binde and in the principall case the payment of the rent after the fine makes the fraud apparant for by this the Lessor was secure and not cause of any doubt of fraud But 't was resolved if the Bargainee or Feoffee of A. perceiving that C. hath right levies a fine or takes a fine of a Stranger to the intent to barre C. this fine levyed by consent shall binde for nothing was done in this that was not lawfull and the intent of the act was to avoyd strife So if A. pretending title disseise B. and to the intent to barre the disseissee levies a fine for the desseisor Venit tanquam in arena and 't is not possible but the disseisee had knowledge of it and if he doth not enter 't is his folly But in the case at barre every one will presume that the fine is levyed of his owne Land because that he might lawfully doe and though this conteines more acres then his owne Land this is usuall almost in all fines and the covin of the Lessee is the cause of non-claime of the Lessor and a man shall not take advantage of his owne covin and here the fraud is the more odious because of the great trust viz. Fealty To the objection that it should be mischievous to avoyd fines upon such nude averments 't was answered that it should be a greater mischiefe principally if fines levyed by such covin should binde And an averrment of fraud may be taken by the Statute of 27. of the Queene against a fine leavyed to secret uses by fraud for to deceive Purchasors So by the Statute of 13. of the Queene an averrment may be taken against a fine levyed upon an usurious contract Twynes Case 44. Eliz in Cam. Stel. fo 80. IN an Information per Cooke Atturney Generall against Twyne of Hampshire for contriving and publishing of a fraudulent Deed made of goods The case upon the Statute 13. Eliz. ca. 5. was thus Pierce was indebted unto Twyne in 400. l. and to one C. in 200. l. C. brought an action of Debt against Pierce and hanging the Writ Pierce being possessed of goods and Chattells to the value of 300. l. in secret made a deed of all his goods and Chattells to Twyne in satisfaction of his Debt yet Pierce continued in possession of the same some of them he sold and his Sheepe he marked with his owne marke after C. had judgement a Fier fac to the Sheriff by vertue thereof Bayliffs came to make execution of the goods and divers persons by the commandement of Twyne with force resisted them claiming them to be the goods of Twyne by vertue of the same deed and whether this deed was fraudulent or no was the Question and 't was resolved by Sir Thomas Egerton Keeper of the Great Seale of England and by the chiefe Justices Popham and Anderson and all the Court of Star-chamber that this deed was fraudulent and within the Statute of 13. El. And in this Case divers things were resolved First That this Deed had the markes of fraud it was generall and without exception of his apparell or any thing of necessitie for dolosus versatur in generalibus Secondly The Donor continueth in the possession Thirdly It was made in secret Et dona clandestina semper sunt suspiciosa Fourthly it was made hanging the Writ Fifthly there was trust betweene the parties for
the Donor was in possession and used them and fraud is alwayes apparelled with trust and trust is the cover of fraud Sixthly it was contained in the deed that it was honesty truely and bona fide Et clausulae inconsuetae semper juducunt suspitionem and it was resolved although it was a due debt to Twyne and a good consideration of the deed yet it was not within the proviso of the said Act of 13. Eliz. By which it is provided that the said Act doth not extend to any estate or interest in Lands c. goods and chattells made upon good consideration and Bona fide for although it be upon good and true consideration yet it is not Bona fide for no deed shall be deemed to be made Bona fide within the said proviso that is accompanied with any trust for the proviso saith upon good consideration and Bona fide so as good consideration doth not serve if it be not also Bona fide Therefore good Reader if any deed be made to thee in satisfaction of any debt by one that is indebted unto others also First let it be in publick manner before Neighbours Secondly valued-by good men to a true value Thirdly take them out of the possession of the Donor presently for continuance of possession in the Donor is a marke of trust There are two considerations Viz. Consideration of blood or nature and valuable consideration And if one that is indebted to five severall persons every one 20. l. in consideration of naturall affection doth give all his goods unto his Sonne or Cosen The intention of the Statute was that the consideration in this case should be valuable for equity requires that this deed that defeates others shall be made of as high a consideration as the things are that are so defeated thereby for it is to be presumed that the Father if he had not beene indebted unto others would not dispossesse himselfe of all his goods and subject himselfe to his Cradle And therefore it shall be intended that it was to defeate his Creditors And if a consideration of nature or blood should be a good consideration within this proviso the Statute would serve for little or nothing and no creditor should be sure of his Debt A feoffment made solely in consideration of nature or blood shall not take away the use raysed upon valuable consideration but it shall take away a use raised in consideration of nature for both considerations are in Equali jure and of the same nature Many men marvaile the reason that so many acts and Statutes are dayly made this Verse answereth Queritur ut crèscunt tot magna volumina legis In promptu causa crescit in orbe dolus And because fraud abounds in these dayes more then in former times it was resolved that all Statutes made against fraud shall be liberally expounded for to suppresse the fraud and according to this see severall resolutions in the Booke at large It was resolved that no purchasor may avoyd a precedent conveyance made by fraud but he that is a purchasor for money or other valuable consideration paid for consideration of blood is a good consideration but not such a consideration as is intended by the Statute 27. El. ca 4. for valuable consideration is onely good consideration by the same act Anderson chiefe Justice of the common banck said That a man who is of small capacity and not able to governe his Lands that discends unto him and being disposed to ryot and disorder by the mediation of his friends by open Act conveyes his Lands to them upon trust and confidence that he shall take the profits for his maintainance and that he shall have no power to wast or consume them And after he being seduced by deceitfull and covetous persons bargained for small summes his Lands of great value this bargaine although it were for money was holden to be out of this Statute for this act was made against all fraud and deceit and shall not ayd any purchasor that commeth not to the Lands for good considerations lawfully without fraud or deceit And in this case Twyne was convicted of fraud and he and all the others of a ryot Resolutions P. 44. of the Queene upon the Statutes of Fines fo 84. A. Tenant for life the remainder to B. in taile the remainder to B. and his heires B. levies a Fine hath issue and dyes before all the Proclamations passed the issue then beyond the Sea the Proclamations are made the issue retournes and upon the land claimes the remainder Resolved that the estate which passed was not determined by the death of tenant in taile so if tenant in taile of a rent Advowson Tythes Common c. grants by Deed and dyes for if the issue brings a Formedon for the rent he makes the grant voidable if he distraines or claimes it upon the land he by this determines his election And there is no diversity betwixt tenant in taile of a rent c. and tenant in taile of a reversion or a remainder upon an estate for life though in the first case the issue may have a Formedon presently after the death of tenant in taile Holden by Popham and divers other Justices that the Statute of 32. H. 8. hath inforced the case that the estate which passes by the Fine of tenant in taile shall not be determined by his death for by this 't is provided that Fines levied of any lands c. intailed immediatly after the Fine ingrossed and Proclamations made shall be a barre if the Fine cannot be a barre without continuance the Statute hath provided that the estate shall continue for it provides for all necessary incidents to the perfection and consummation of it Every Fine shall be intended with Proclamations for 't is most beneficiall for the conusee and all Fines being the generall assurance of land are levied according Resolved that though by the death of tenant in taile a right of the estate taile descends to the issue for that the tenant in taile dyed before all the Proclamations passed yet when they are passed without claime this right is barred by the Statute of 32. H. 8. Resolved by all the Judges and Barons but three that the issue in this case being heire and privy cannot by any claime save the right of the taile which is descended to him but that after the Proclamations he shall be barred for 't is provided that every Fine after the ingrossing of it and Proclamation had and made shall be a finall end and conclude as well privies as strangers And if no saving had been all strangers had been barred also and all the exceptions extend onely to Strangers but the issue is privy To the objection if by the equity of the Statutes the issue cannot claime c. to what purpose are the Proclamations with such solemnities Answered 32. H. 8. being an Act of explanaiton of 4. H. 7. as to the Fine by tenant in taile shall
of the intire blood shall have it not the younger sonne Resolved though a Copy-holder in judgement of Law hath but an estate at will yet custome hath so established and fixed his estate that by the custome of the Mannor 't is descendable to his heires and is not meerely ad voluntatem Domini but c. secundum consuetudinem manerij so the custome is the soule and life of Copy-holds See the booke at large of what antiquity Copy-holds are and some generall learning concerning them Resolved when custome hath created such inheritances the Law shall direct the descent according to the Maximes and rules of the common Law as incident to every estate descendable When uses had gained a reputation of inheritances the Law directed the descent and of them there shall be a possessio fratris But resolved that such customary inheritances shall not have any collaterall qualities which doe not concerne descent of inheritance which other inheritances have and therefore they shall not be assets to the heire upon an obligation nor there shall not be Dower nor tenancy by the Curtesie nor a descent shall toll entry c. For as without custome they cannot descend so without custome they cannot have a collaterall quality for Copy-holders have inheritances secundum quid viz. to descend to the heires and not to be determined by the will of the Lord not simplicitèr to a collaterall quality Resolved that the heire before admittance may take the profits and may surrender to the use of another before admittance but this shall not prejudice the Lord for his Fine upon the descent and he is a tenant by Copy of Court-roll for the roll made to his auncestor belongs to him and admittance of tenant for life shall serve for the remainder yet it shall not prejudice the Lord for his Fine And though 't was objected that every admittance amounts to a grant and so may be pleaded and therefore nothing vests before admittance yet 't was resolved that as after admittance the heire may in pleading alledge this as a grant and this to avoyde inconveniences for if he should be compelled to shew the first grant it was before time of memory and so not pleadable or if within memory then the custome failes yet he may alledge the admittance of his auncestor as a grant and shew the descent to him and that he enterd and this without admittance but he cannot plead that his Father was seised c. by Copy c. and dyed seised and that this descended c. For in truth 't is but a particular estate at will in judgement of Law though descendable by custome Ryvets case 24. of the Queene fo 22. A Greed that a husband shall not be tenant by the Curtesie of a Copy-hold without speciall custome Deale and Rigdens case 36. of the Queene fo 23. ADjudged that if a recovery be in plaint in nature of a reall action against tenant in taile admitting Copy-hold may be intailed that this is a discontinuance for in as much as plaints are warranted by custome 't is incident that it should make a discontinuance The like judgement was between Clun and Pease Bullock and Dibleys case 35. of the Queene fo 23. REsolved that a surrender by the husband is no discontinuance to the wife nor her heires And if a Copy-holder for life surrender to the use of another in fee this is no forfeiture for it doth not passe by livery And Copy-holders have not such quality without speciall custome so also adjudged in severall cases Gravenus and Teds case 35. of the Queene fo 23. REsolved that the descent of a Copyhold doth not toll entry and that where the custome was that he may grant in fee simple that he may by the same custome grant to a man and the heires of his body for be it a fee simple conditionall or a taile 't is within the custome so of a grant for life or yeares for fee simple includes them Fitch and Huckleys case 36. of the Queene fo 23. REsolved that admittance of a Copyholder for life is an admittance of him in remainder but not to prejudice the Lord for his Fine And that upon a surrender to the use of himselfe for life and after to the use of his last will that the fee remaines in the Copy-holder not in the Lord. Clarke and Pennifathers case 26. of the Queene of 23. REsolved that the heire of a Copyholder may enter and have trespas before admission and if the heire as the principall case was dye before admission his heire may take the profits and have trespas And Wray said that 't was adjudged that there shall be possessio fratris of it Resolved that where H. 8. granted a Mannor to the Queene for life that the Queene was a sole person exempted by common law and may make a lease or grant without the King and may plead and be impleaded and that 32. H. 8. is but a declaration of the common Law Adjudged that a grant of a Copyhold in fee escheated to her by the Queene tenant for life bindes the King his heires and successors for she was domina pro tempore and the custome of the Mannor bindes the King And that every one who hath a lawfull interest in a Mannor c. though but at will may grant Copyholds escheated c. rendring the auncient rent customes and services and this shall binde the Lord for he is dominus pro tempore For a Copyholder derives not his interest out of the estate of the Lord onely but out of the custome and the grantee is in by that without regard to the estate or person of the grantor and therefore such a grant by the husband shall binde the wife so of Infants non compos mentis Bishop Prebend Parson shall binde for ever for the custome is that the tenements are parcell of the Mannor and demised and demisable c. But the Lord must have a lawfull estate for if a disseisor or Feoffee of a disseisor c. makes such grants this shall not binde him that hath right after a recontinuance of the Mannor but admittances by such upon a surrender or of the heire shall binde c. for they are lawfull quodam modo judiciall acts which to doe he may be compelled in a Court of equity P. 26. of the Queene fo 24. ADjudged if a Lord takes wife and a Copyholder for life according to the custome dyes and the Lord regrants for lives and dyes that the wife in Dower shall not avoyde these grants for though the grant were after the title of Dower yet the custome was before If a Feoffee upon condition makes a voluntary grant the condition is broken the Feoffor reenters the grant shall stand Rous and Arters case 29. of the Queene fo 24. ADjudged that if tenant pur auter vie of a Mannor after the death of cestuy que vie continues in and holds Courts and makes voluntary grants this shall not
Lord doth not grant tacitly any customary Court Clifton and Molineux case 27. 28. of the Queene fo 27. REsolved if a Steward hold Court out of the Manner all grants and admittances there made are voyd for the Court ought to be holden within the Mannor not out of the jurisdiction of it as Melwich case is before but resolved that by custome the Court may be holden out of the Mannor and grants c. shall be good as Abbots c. used for to hold Courts at one Mannor for divers severall Mannors Resolved that if a woman Copiholder for life takes husband who commits wast and dyes the Copihold is forfeited otherwise if a stranger does wast without the assent of the husband Taverner and Cromwells Case 26 of the Queene fo 27. REsolved if a copiholder seised of three severall copiholds of three severall acres makes wast in part of one c. all that is forfeited but not the others for though they are all in one hand yet every one is severally holden and a severall condition in Law annexed and the severall conditions follow the severall tenures So resolved if the coppyholder surrender them to the use of A. and the Lord admits A. Tenendum per antiqua servitia inde prius debita dejure consueta and A. makes a forfeiture in one he shall forfeite that onely for the Tenendum red dendo singula singulis continues the severall tenures so that 't is not materiall if the copiholds are in one or severall copies So if diverse severall copiholds escheate to the Lord he grants them Tenendum per antiqua servitia they shall be severally holden as they were before though he grants them to one man Resolved that when he to whose use a surrender is made is admitted he is in by him that surrendered and in a plaint in the nature of an entry in the Per shall be supposed in by him for the Lord is but an instrument to make the admittance and his charge shall not binde him that is admitted So Reader where before 't is said that by the forfeiture of the Husband all the estate of the Wife shall be forfeited 't is to be intended all the copihold under the same tenures Hubbard and Hamonds Case 42. and 43. of the Queene fo 27. REsolved that if the fines of copiholders upon admittances be incertaine the Lord cannot exact excessive and unreasonable fines if he does the copiholder may deny to pay it without forfeiture and it shall be determined before the Judges upon a Demurrer or evidence upon proofe of the value of the Land what fine was reasonable to be demanded for if it should be otherwise great part of the Copy-holds should be destroyed at the will of the Lord and so was Hodesons Case adjudged Resolved if the Lord assesse a reasonable fine and require the Copy-holder to pay it he is not bound to pay it presently because he could not know what the Lord would assesse nemo tenetur divinare and he shall have a convenient time to pay it if the Lord limits no time otherwise of a fine certaine Resolved if a Copy-holder hath severall Copy-holds by severall services the Lord ought to assesse and demand fines severally for every parcell and the tenant may refuse to pay his fiine for one and forfeit that onely and every severall tenure hath severall conditions in law tacitely annexed to it So if all the severall Copy-holds are surrendered to the use of another and the Lord admits him Tenendum per antiqua servitia c. the tenures are severall and fines severall Taverners ca ' before Resolved that no fine is due to the Lord till admittance for admittance is the cause of the fine and if after the tenant deny to pay it 't is a forfeiture Bacon and Flatmans Case and Sands Case so resolved Westwick and Wyers Case 43. of the Queene fo 28. A Woman Copy-holder in Fee surrenders to the use of W. her Sonne in fee and at the next Court the entry was Ad hanc curiam venit W. and I uxor ejus ceperunt c. W. dyed I. his Wife survived and surrendered to the use of I. S. in fee. Resolved when the Lord hath the Copy-hold by surrender to the use of another he hath but a customary power to make admitance Secundum formam effectum sursum redditionis and 't is not like to the Feoffee at common Law and though the Lord grant this by Copy to another 't is without warrant and notwithstanding he might make an admittance according to the surrender and he which is admitted shall be in by him that surrendered as Taverners Case is before and the Court agreed if the Lord grant to Cestuy que use and a stranger all shall inure to Cestuy que use or if he admits him upon condition the condition is voyd As Executors agree that the legatory and I. S. shall have c. or that the legatory shall have upon condition the legatory shall have onely and absolutely for after the assent of the Executors he is in by the Devisee And 't was said that 't was adjudg'd in Buntings Case that where the Lord admits one to hold to him and his Heires where the surrender was for life onely that he hath but for life Resolved that without speciall custome or other speciall matter the admittance shall inure onely to the Husband and judgement was given according Buntang and Lepingwells Case 27. and 28. of the Queene fo 29. REsolved that though T. who was Husband of the Wife De facto was not party to the Libell for I. S. Libelled against the Wife without naming her Husband for a divorse upon a precontract betwixt him and the Wife nor the sentence in the Spirituall Court which dissolved the Marriage betwixt him and his Wife yet the sentence against the Wife onely being but declaratory shall binde the Husband De facto and for that the conusance of the right of Marriages belongs to the spirituall Court and they have given sentence in it the Judges of the common Law though it be against the reason of the Law shall give faith and credence to their proceedings and sentences as consonant to the Law of holy Church for Cuilibet in sua arte perito est credendum So 't was adjudg'd that the Plaintiffe borne in the second Marriage was legitimate Resolved when a Copyholder surrenders to the Lord to the use of his Wife and his younger Sonne without limitting any estate they have for life onely for as well estates as discents shall be directed by the rules of Law as necessary consequents upon the custome except there be a speciall custome within the Mannor that Sibi suis or Sibi assignatis may create an estate of inheritance And 't was observ'd that the Estates limitted upon surrenders are always annexed to the estates of him to whom the surrender is made and alwayes the surrender to the Lord is generall without
limitation of any estate Resolved that when the Lord admits Cestuy que use for life the reversion is in him that surrendered not in the Lord for he is but an instrument Resolved that a man may surrender to the use of his Wife though that Cestuy que use is in by him that surrendered because the Husband did not doe this immediatly to the Wife but by a second meanes Viz. By surrender to the Lord and by admittance of the Lord. Resolved that when B. surrendered out of Court and before that 't was presented in Court he dyes yet after being presented according to the custome 't is good otherwise if it had not beene presented according to custome so if the Tenants in whose hands c. dyes yet if it be proved 't is good enough so Queintons Case before if Cestuy que use c. dyes before admittance his Heires shall be admitted Downe and Hopkins Case 36. of the Queene fo 29. REsolved that where the custome of a Mannor was to grant Coppies for one two or three lives that a grant to a Woman during her viduity is within the custome for 't is an estate for life but every grant for life is not Durante viduitate issue was whether the custome was that the Wife of a Copy-holder after the death of the Husband should have for life and 't was given in evidence that she should have during her viduity and adjudged that the evidence did not maintaine such custome for 't is a lesse estate then for life But in the principall Case 't is a greater estate which is warranted by the custome and therefore a lesse is within it according to Graveners Case before 'T was said that a Lord may retaine a Steward by word to hold Courts c. as a Bayliffe and this retainer shall serve till he be discharged Harris and Jayes Case 41. of the Queene fo 30. REsolved that a Lord may retaine one to be Steward of his Mannor and to hold Courts by word as in the Case before Resolved that where a Copy-hold escheates by attainder of felony of a Copy-holder of the Queene that the Steward may grant it over Ex officio without speciall warrant for the custome warrants the Steward to grant it and this shall binde the Queene and her Heires c. But yet his duty is before to informe the Lord Treasurer Chancellor or Barons of the Exchequer or any of them for his better direction Resolved that the Auditor or Receiver of the Queene hath no power to retaine a Steward to hold courts c. But it behooves that the Steward who makes such voluntary grants upon escheats or forfeitures to be good to have Letters Pattents of the Stewardship of the same Mannor And 't was said that 't was adjudged in the Lady Holcrofts Case that where one was retained generally by word to be Steward of a Mannor and to hold Courts that he may take surrenders of customary tenants out of Court Shaw and Thompsons Case 33. of the Queene fo 30. REsolved that a Woman shall not be indowed of Copy-hold without speciall custome and that when a Woman is to be indowed by custome she shall have all incidents to Dower and shall recover damages by the Statute of Merton because her Husband dyed seised and therefore the recovery of damage of 50. l. in the Court of the Mannor was allowed though this exceeded 40 s Resolved that no Action of Debt lyes for these damages at common Law for upon such judgement no error or false judgement lyes but the remedy is in the Court of the Mannor or Chancery Fenner Justice said That he had seene a Record 36. H. 8. where the Lord by Petition to him had for certaine errors in the proceeding reversed such a judgement and upon this the Defendant maintained an Audita quaerela to be restored to the damages recovered against him See 14. H. 4. cited before in Brownes Case And 7. E 4. 29. Hoe and Taylors Case 37. of the Queene fo 30. REsolved that Underwood growing upon parcell of the Mannor may by custome be granted by Copy of Court roll and 't is a thing of perpetuity to which a custome may extend for after every cutting the underwood growes Ex stipitibus So 't was resolved that Herbage or any profit of any parcell of the Mannor may by custome be granted by Copy and 't was said that a faire appendant to the Mannor of C. in S. is granted by Copy and this explaines the reason of the first pillar in Murrels Case Frenches Case 18. 19. of the Queene fo 31. REsolved if the Lord Lease for yeares life or make any other estate by deed or without deed of Copy-hold Land forfeited escheated c. to him that this Land can never be granted againe by Copy for the custome is destroyed for during these estates the Land was not demised nor demisable by Coppy So if the Lord make a feoffement and enter for condition broken but if the Lord keepe it in his hands a long time or leases it at will he his heires or assignes may regrant it So if the interruption be tortious as by disseisin and discent false verdict or erroneous judgement for Non valet impedimentum quod de jure non sortitur effectum quod contra legem fit pro infecto habetur But if it be extended upon a Statute or recognizance acknowledged by the Lord or if the Wife of the Lord hath this Land assigned to her in Dower though these impediments are by act in Law yet for that the interruptions are lawfull the Land cannot be after granted by Copy If a Copy-holder accept a Lease for yeares of the Lord of his Copy-hold 't is destroyed for ever If a Copy-holder take a Lease for yeares of the Mannor his Copy-hold hath not continuance Hides Case adjudged 17. of the Queene But there 't was resolved that such Lessee might regrant the Copy to whom he would for the Land was alwayes demised or demisable If a Coppy-hold be surrendered to the Lessee his Executors or assignes may regrant it If a Copy-hold escheate to the Lord his alienee by fine feoffement c. may regrant it Foiston and Crachroodes Case 29. and 30 of the Queene fo 31. ADjudged that where a Copy-holder in pleading alledges Quod infra Man praed talis habetur nec non a toto tempore cujus c. habebatur consuetudo Viz. quod quilibet tenentes praedictorum tenement vocat C. have used to have common in such a place parcell of the Mannor and that he is a Copy-holder of the said Tenement that this custome as well for the matter as the forme was good for the Copy-holder cannot prescribe in his owne name for the exility and basenes of his estate and if he had claimed common in the soile of another he ought to prescribe in the name of the Lord Viz. That the Lord and all his ancestors and all those whose estate c. have
had common in such a place for him and his Tenants at will but when he claimes this in the soile of the Lord he cannot prescribe in the name of the Lord for the Lord cannot prescribe to have common c. in his owne soile and therefore he ought to alledge that within the Mannor there is such a custome Note a good diversity betweene a prescription which is personall and alwayes made in the name of a certaine person or his auncestors or those whose estate c. and a custome which is locall and alleadged in no person but that within the Mannor there is such a custome this shall serve for those who cannot prescribe in their owne name nor in the name of any person certaine as the Inhabitants of a Towne Also the allegation of a custome shall serve when 't is referred to a thing insensible Viz. that all such Lands are devisable And for that in the principall case the custome may have a lawfull commencement that one copy-holder onely shall have common estovers or other profit in the land of the Lord and that in many Mannors some Copiholders have common in one wast of the Mannor and others in another severally so that the custome cannot be applied to all and because that all the other Copiholds may be determined and extinct 't was adjudged the custome was well alledged So to have common of estovers in the wood of his Lord parcell of the Mannor c. was adjudged good 10. of the Queene as 't was said Myttons case 26. Eliz. QUeene Elizabeth by Letters Patents did grant the office of the Clerkship of the County Court of Somerset to Mytton with all fees c. for life Arthur Hopton Esquire Sheriffe of the same Shire interrupted him because it was incident to his office Mytton complained to the Lords of the Councell and it was referred to the two chiefe Justices Wray and Anderson And after many arguments concerning the validity of the grant and conference had with all the other Justices It was resolved by all the Justices Nullo contradicente aut reluctante that the said Letters Patents were voyd And their reasons were that the office of the Sheriffe was an ancient office before the Conquest and of great trust and authoritie for the King committeth unto him Custodiam Comitatus And though the King may determine the office ad beneplacitum yet he cannot determine this in part as for one Towne or Hundred nor abridge him of any incident to his office for the office is entire and ought to continue so without any fraction or diminution without by Parliament and the County Court and the entring of all proceedings therein are incident to the Sheriffes office c. And though 't was granted when the office of the Sheriffe was voyd yet the new Sheriffe shall avoyde it as Scroges case in the time of vacation of the office of the Chiefe Justice of the Common Bench Queene Mary granted the office of the Exigenter of London resolved that the next Chiefe Justice shall avoyd it for 't was incident to his office Also in all Writs directed to the Sheriffe concerning the County Court the King says in comitatu tuo and in retourne of exigents made by him he says ad comitatum meum tent c. and the style of the Court proves it and by the Statute of 33. H. 8. the Sheriffe of Denbigh shall keepe his Shire Court at c. In a false judgement 't is said in pleno com' tuo recordari facias c. and in a precept of Tolt 't is said summoneas c. quod sit ad comitatum meum And it should be very inconvenient that another should have the custody of the entries and Rolls of Court which may be imbesilled and the Sheriffe responsable for them And it was resolved that the custody of all the Gaoles within every County belongs to the Sheriffe by right and are annexed and incident by the Law to the Sheriffes office vid. stat An. 14o. E. 3. ca. 10. Bozouns case 26. 27. of the Queene fo 34. A. Portion of tythes in L. appertained to the Rectory of G. which was presentable and the Queene was seised of the Rectory of L. jure coronae which was appropriated to the Monastery of W. and grants to B. ex gratia speciali c. totam illam portionem decimarum c. in L. c. Cum omnibus alijs decimis suis quibuscunque in L. tunc vel nuper in occupatione J. C. and that the pattents shall be of force non obstante aliquibus defectibus in non nominando male recitando c. alicujus occupatoris And J. C. never had any tythes in L. Resolved that in the occupation of J. C referres to all the sentence and not onely to cum omnibus alijs decimis c. 1 Because illam demonstrates fully that there ought to be words subsequent to explaine and reduce in certainty what portion by the intention of the Queene should passe viz. that which was in the occupation of J. C. and 't is not satisfied till it be come to the full end of the sentence 2. This conjunction cum omnibus alijs c. couples the last words to the former and makes the words subsequent to referre to all the sentence 3. If all the tythes in L. of the said Rectory should passe the addition of the occupation of J. C. should be vaine maledicta expositio c. Resolved that by grant of portionem decimarum c. the tythes parcell of the Rectory of L. doe not passe for portion properly signifies a part or portion in grosse divided and not parcell of the Rectory and the Queene had not any portion in grosse but all were parcell of the Rectory And ex gratia speciala c. shall not extend by any strained constructiō to make a thing passe against the intention of the Queene expressed in her grant and against the apt proper and usuall signification of the words of his grant Resolved that because J. C. had not any tythes there nothing passes for admit that a portion should be taken for a part then the effect of the grant is totam illam portionem decimarum in occupatione J. C. and in truth he never had any part nothing without question passes in case of a common person a fortiori not in the case of the Queene As to the point when a clause of Non obstante shall make the grant of the Queene good when not Resolved when the King by the common Law cannot in any manner make a grant there a Non obstante of the common Law will not make the grant good against the reason of the common Law as the King grants a protection in an Assise or Quare Impedit notwithstanding any Law to the contrary 't is voyd for protection lyes not in these cases for the losse which may come to the parties by such great delay But when the King may lawfully make
judgement and this error assigned for that R. the plaintiffe was an Infant and was admitted by his Gardian and no Record made of it as 't is used in Banco but onely recited in the Count J. R. per A. B. gardianum suum ad hoc per curiam specialiter admissum queritur Which was disallowed by all the Justices upon search and view of many presidents which make a Law in this Court yet some presidents were as in Banco Note Reader according to the opinion of Wray 't was resolved in Londons case that if a man takes a lease by Indenture of his own land this is an Estoppell but during the terme and then both parts of the Indenture belong to the lessor Wardens and Commonalty of Sadlers case 30. of the Queene fo 54. BY Mandamus 't was found before B. Mâ—yor of London Escheator of the City and thâ— inquisition was returned in Chancery that T. C. held of the King c. and dyed seised without heire the Wardens c. shewed their right that R. M. was seised in fee and devised to them in fee and that they were seised till by C. disseised and shew the custome of London that a Citizen and Freeman may devise in Mortmaine and averred that R. M. was c. Tempore mortis and upon this great question was whither a Monstrans de droit lyes or it ought to be by Petition See the Case at large for this Learning Bereblock and Redes Case was cited to be adjudg'd if A. be bound in a recognizance Statute c. and after a recovery in Debt is had against him and he dyes his Executors ought first to pay the Debt upon the Recovery though it be puny to the Statute c. for though both be Records yet the judgement in the Court upon judiciall and ordinary proceeding is more notorious and conspicuous and of more high and eminent degree then a Statute c. taken in private by the consent of Parties Forse and Hemblings Case 37. Eliz. in com Banc fo 60. ALice Allen seised of certaine Messuages in Fee maketh her will in Writing and thereby demiseth that if James Amynd doth survive her that then she doth demise and bequeatheth the same messuage to him and his Heires And afterwards the said Alice did Intermarry with the said James and during her coverture she said often the said James should never have the said Messuage by her said Will Alice dyed without issue and James survived and the Question was whither the Will was countermanded by the said Marriage or not and if not whither by the words of revocation after the Marriage was a Countermand and it was adjudged upon great deliberation that the taking of a Husband and the coverture at the time of her death was a countermand of the Will For the making of a Will is but an inception thereof and it doth not take any effect untill the death of the Devisor For Omne testamentum morte consummatum est voluntas est ambulatoria usque extremum vitae exitum And it should be against the nature of a Will to be so absolute that he that made the same being of sane memory may not countermand the same And therefore the taking of her Husband being her owne proper act doth amount to a countermand in Law Also 't was said that after Marriage all the will of the Wife in judgement of Law is subject to the will of her Husband and a Feme Covert hath no Will and therefore the Countermand after Marriage was of no force Quod fuit concessum per tot Cur. Harlakendens Case 31. El. In banco regis fo 62. THe Earle of Oxford leased to A. B. and C. except the Trees for 21. yeares C. assigned to D. the Earle sells the Trees to A. B. and D. they leased to E. and after sell the Trees the Vendee cuts them the Lessee brings Trespasse When a man maketh a Lease for life or yeares the Lessee hath but onely a speciall interest or property in the Trees being Timber as things annexed to the Land but if the Lessee or another severs them the property and interest of the Lessee is determined and the Lessor may take them as things which were parcell of his Inheritance It was also resolved that this clause without impeachment of wast doth not give to the Tenant for life any greater interest in the Trees then he had by the demise of the Land but onely that it will serve that he shall not be impeached in any action of Wast or to recover damages or the place wasted * This is adjudged otherwise by all the Judges of England in Lewes Bowles Case in the 11. Report It was also resolved that if an House fall by tempest or other act of God the Lessee for life or yeares hath a speciall interest to take Timber to reedifie the same if he will But if the Lessee suffer the House to fall or take it downe the Lessor may take his Timber as parcell of his Inheritance and the interest of the Lessee is determined and he may have wast and treble damages Resolved that the Lessee by the grant had an absolute property in the Trees so that by the Lease of the Land they did not passe and he hath not equall ownership in both and it should be a prejudice to him if they should be joyned to the Land for then he could not cut during the terme without wast and after he shall not have them and the Lessor shall not have them against his owne act And here A. B. and D. were Tenants in common of the Land and joyntenants of the Trees and so their interest of severall qualities and therefore cannot be a union betwixt them but upon a feoffement if the Feoffor accept the Trees they are in property divided though In facto they remaine annexed to the Land for it is not felony to cut them c. and if the Feoffor grants them to the Feoffee they are reunited in property as well as De facto and the Heire shall have them not the Executors for the feoffee hath an absolute ownership in both and it is more benefit to him that they are reunited It was resolved That if Tymber Trees be blowne downe with the winde the Lessor shall have them for they are parcell of his inheritance and not the Tenants for life or yeares but if they be Dotards without any Timber in them the Tenant shall have them It was adjudged that wast may be committed in glasse in the Windowes for it is parcell of the house and discends as parcell of the inheritance to the Heire and the Executors shall not have them although the Lessee put the glasse in the Windowes at his owne cost and if he take them away he shall be punished in wast And 42. Eliz. in com Banco It was resolved that Wainscote whither it be annexed to the house by the Lessor or the Lessee is parcell of the House and there
construed shall or might be leavyed and so 't was holden of a Lease or limittation of a use otherwise he which is to leavy the Summe by deferring to doe it may exclude the reversioner for ever see the Booke at large Resolved when the heire or reversioner c. enters and expulses him to whom the Land is limitted he hath election to recover the Mesne profits in an action or reentry and retainer till he leavyes the inteir Summe and the other shall not have advantage of his owne wrong and if a stranger had entered and occupied the Devisee ought to have taken notice at his perill for Vigilantibus non c. and none is bound to give notice but here the Heire himselfe concealed the will and the Devisee had no remedy for the Mesne profits after the death of the heire Resolved that a Gardian shall not ouste Tenant for life nor yeares of the Tenement Resolved that admitting the Gardian shall ouste Tenant for yeares yet he shall not hold over because his terme is certaine in the commencement continuance and end otherwise of Tenant by Elegit Statute c. they shall hold over because the terme is uncertaine Southcots Case 43. Eliz. in banco regis fo 83. IF A. doe deliver goods to B. for to keepe the goods be purloyned away yet B. shall be charged in a Writ of detinue For to keepe and to keepe safely is all one but if B. doe take them to keepe as his owne goods he shall not be charged with them And if A. doe pledge or Guage goods unto B. in this Case B. shall not answer for them if they be purloyned for he had some property in them and not a custody onely but a ferryman a common Inkeeper or a Carrier which taketh hyre they ought to keepe the goods safely and they shall not be discharged if they be stollen or purloyned But a Factor or a Servant although he have wages doing his indeavour shall not be charged Luttreles Case 43. Eliz. in banco regis fo 86. IF a man have estovers eyther by grant or prescription to his house although he alter the Rooms and Chambers in his House it seemeth that the alteration of the qualities so as it be not of the house it selfe and without making new Chimnyes by which no prejudice accrewes to the owners of the Wood is not any destruction of the prescription and though he make new Chimnyes or make a new addition to his old house he shall not loose his prescription thereby but he may imploy or spend any of his new estovers in the Chimnyes or in that part newly added It was also resolved that if a House or Milne doe fal or be taken downe by the act of the owner or by wrong of another yet for that the perdurable part which includes all doth remaine which is the Land whereupon the Fabrick is built he may reedifie the same againe without any Losse of his apendant or apurtenant but it ought to be upon the same place which was the Foundation of the old House for as it did support and in judgement of Law included the ancient house when it was standing so it supports and includes the new house so as it is in a manner a continuance of the ancient house Diverse Tenants doe hold of another as of his Mannor by fealty and suite to the Lords Milne the Lord doth alien his Milne with the suite of his Tenants and after the vendor dyeth and his Sonne entereth and buildeth a new Milne upon the other part of his demeane he shall have the suite to his owne Milne which the Vendee had before for the suite belongeth to him that hath the Mannor for no man may have suite to his milne by reason of a Tenure If it be not of Corne growing upon the Lands within the Seigniory or Mannor and the Lord may erect a new Milne within any part of the Mannor and the Tenure is due to the same and not to any particular Milne Druries Case 43. Eliz. Error in Banco Regis fo 84. A Countesse being a Widdow retaineth three Chaplaines he who is last reteined is not capable of a dispensation for the Statue of 21. H. 8. c. 13. is executed by reteining of two and the reteining of the third shall not devest the capacity which was in the first two but if the reteiner had beene at one time he who is first promoted shall be first preferred because in Aequali jure c. 2. Resolved if the two first die the third is not capable of dispensation without a new reteiner because he was reteined at the common Law and not according to the Statute Quod ab initio non valet c. As if the Sonne and Heire of a Baron reteineth a Chaplaine and giveth him Letters under his Seale and after the Father dyeth And it was said that the said Act shall be taken strictly as if a Baron be made Gardian of the 5. parts he shall reteine no more Chaplains then before and if a Baron retaine two Chaplaines who are promoted he cannot discharge them and reteine others during their lives Slades Case 44. Eliz. fo 92. IT was resolved that every contract executory imports in it selfe an assumpsit For when one doth agree to pay money or to deliver any thing by that he doth assume and promise to pay or to deliver the things and therefore when he selleth any goods to another and agreeth to deliver them at a day to come and the other in consideration thereof agreeth to pay so much money at such a day in this case both parties may have an Action of Debt or Action upon the case upon the assumpsit for the mutuall executory agreement of both parties import in themselves as well a reciprocall Action upon the Case as an action of debt and a recovery or barr in an action of debt is a good Barre in an action upon the Case brought upon the same contract and so likewise in an Action upon the Case a recovery or Barre in the same is a good plea in an Action of Debt upon the same contract The Defendant in an Action of the Case upon the assumpsit may not wage his Law as he may doe in an action of Debt If a Summe of money be promised in Marriage to be paid at severall dayes an Action upon the assumpsit lyeth for non payment of the first although no Action of Debt lyeth untill all the dayes be past Multitudo errantium non parit errori patrocinium and if the Debtor of the King sueth by Quo minus in the Exchequor the defendant shall not have his Law for the benefit of the King Adams and Lamberts Case 44. and 45. Eliz. in banco Regis in Ejectione firmae fo 104. UPon consideration of the Statute of 1 E. 6. cap. 14. it was resolved 1. That if one demise to any of his Kindred to superstitious uses although he limit them to pay certaine Summes of
his consent and after the other two did alien without license and it was adjudged 28. Eliz. that in this case the condition being determined as to one person by the license of the Lessor it was determined in all for when the Lessee alieneth any part of the residue the Lessor may not enter into any part aliened with license and therefore the condition being determined in part is determined in all for the condition being entire may not be apportioned and 16. Eliz. Dyer 334. fuit deny per Popham Chiefe Justice Vide lit 80. b. 4. and 5. Ph. and M. Dyer 152. Bustards Case 1. Jac. fo 121. IN every lawfull exchange of Land this word Excambium imports in it selfe Tacite a condition and a warranty and the other a Voucher and recompence and all in respect of reciprocall consideration the one land being given in exchange for the other but that is a speciall warranty for upon the voucher he shall not recover other Lands in value but those onely which were given in Exchange and this warranty followes onely in privity for none may vouch by force thereof but the parties to the Exchange and their heires and no assignes If A give in Exchange three acres of Land to B. for other three acres and after one Acre is evicted from B. in this Case all the exchange is defeated and B. may enter into all his Lands Beverleys Case de non compos mentis in banco regis 1. Jac. fo 123. EVery act that a man De non compos mentis doth eyther concerning his Lands life or goods eyther done in Court of record or out of Court of record all acts that he doth in any Court of record eyther concerning his Lands or goods shall bind himselfe and all others for ever and those acts which he doth out of Court of record shall binde himselfe during life and in some Cases shall binde all others for ever so as the party himselfe shall not be admitted to stultifie himself or disable himself but an ideot a nativitate may not make Feoffment Gift Lease or Release but it may be avoyded during his Life by office at the Kings suite which shall have relation a tempore Nativitatis to avoyd all acts done by him and after his death the King shall deliver his Lands Rectis Haeredibus foure manner of men de non compos mentis 1. An ideot or foole naturally 2. One which was of good and perfect memory and by the visitation of God hath lost the same 3. Lunaticus qui gaudet lucidis intervallis who somtimes is of good and perfect memory and some other times Non compos mentis 4. He that is so by his owne act as a Drunkard All acts which a Lunatick during the time of his Lunacy doth and all acts which a mad man doth who once was of perfect memory and by the act of God hath lost his understanding are equivalent to the act done by an Ideot but the act which a man doth Qui Gaudet lucidis intervallis at such time as he is of good and perfect memory shall binde him and are good And a Drunkard who for the time of his Drunkenesse is Non compos mentis yet his drunkennesse shall not extenuate his act or offence but doth aggravate his offence and doth not derogate from the act which he doth during the time of his drunkennesse and that as well touching his Life Lands and goods as any other thing that concernes him The King shall have the custody of the Land goods Chattells c. of one non compos mentis to the use of him his Wife Children and Family a man non compos mentis shall not loose his life for felony or murder for no felony or murder can be committed without a felonious intent and purpose and he is deprived of reason understanding and intentions Dicta est fellonia quia fieri debet felleo animo furiosus non intelligit quid agit animo ratione caret non mulum distat a brutis as Bracton saith and stultus dicitur a stupore The End of the Fourth Booke THE FIFTH BOOK Claytons Case 37. Eliz. in Com. Banco fo 1. AN Indenture of demise dated 26. May 25. Eliz. to hold for three yeares from henceforth it was delivered at foure a clock in the afternoone of the twentieth of June after The Question was when the Lease should begin from henceforth shall be taken the day of the delivery inclusive idefi from the making or delivery Traditio loqui facit cartam this Lease must end the nineteenth of June in the third yeare after The day of the delivery is parcell of the tearme but a Die confeccionis or a Die datus the terme beginneth the day after the date from the date and from the day of the date is all one because that in judgement of Law the date includes all the day of the date c. Elmers Case 30. Eliz. Banco Regis fo 2. 1. REsolved that the Statute of 1. El. is a private act whereof the Court shall not take notice without pleading of it 2. Whereas the Bishop ousted his Lessee for yeares and made a Lease for three lives this is voidable by the successor for first the Statute giveth him power to make a Lease for twenty one yeares or three lives and therefore cannot make both 2. Lessee for lives shall have the rent reserved upon the Lease for yeares and shall not pay rent to the Bishop untill the terme determined and so hospitality will decay in the meane time and where 32. H. 8. ca ' 8. provided that the old Lease be surrendered before the making of a new illusory surrender upon condition is not within the act but judgement given against the Plaintiffe for not pleading of the said act of 1. Eliz. Jewells Case 30. Eliz. banco regis fo 3. LEase of a faire reservaing rent is not within the Statute of 1. Eliz. for although the rent be due by reason of the contract yet it is not incident to the reversion and 't is also without remedy by assise or distresse Lord Mountjoyes Case 31. 32. El. banco regis fol. 3. TEnant in tayle according to the Statute with power to make Leases c. reserving the ancient rent maketh a Lease of two distinct farmes reâ—erving the ancient rents in one summe out of both sthe farmes this is a new rent and not the accustomed rent and if he reserve a lesser rent during his life and after his death then the ancient rent the Lease is not good If Tenant in tayle be seised of three acres of Land every one of them of equall annuall value and all have beene demised for 3. shil per annum in this case he may not demise one of them for 12. d. per annum or two of them for 2. shil per annum and so Pro rata Justice Windams Case fo 31. 32. Eliza. Banco Regis in a Writ of Error fo 7
Deed to the Court the plaintiffe may pray it to be entred in haec verba the same Terme but not after Pagetts case 35. El. in communi banco fol. 76. IT was resolved that if tenant for life the remainder for life the remainder in fee if tenant for life maketh wast in trees and after he in remainder for life dye an action of wast is maintainable for the wast done in the life of him in remainder for life because it was to the disinheritance of him in remainder in fee. And now the impediment which was the meane estate for life is taken away Et remoto impedimento emergit actio It was resolved that when the trees are cut downe the property thereof belongeth to him in remainder in fee. And where it is said in some Bookes That he in remainder or reversion in fee shall not have an action of wast it is to be intended during the continuance of the meane remainder And in other Bookes is said in this case that an action of wast doth lie it is intended after the death of him in remainder for life Boothes case 36. Eliz. in communi Banco fol. 77. GEeorge Booth brought an action of wast against Skevington and declared that Sir William Booth demised for yeares to Ensor who assigned to Skevington The defendant pleaded an assignement to Elizabeth Cave before which assignement no wast was made the plaintiffe replyed and shewed the Statute 11. H. 6. ca. 5. and that the grant to Elizabeth Cave was made to the intent he should not know against whom to bring his action and averred that Skevington did take the profits the defendant rejoyned that Elizabeth Cave granted her estate to A. who demised to the defendant at will and traversed the fraud c. the plaintiffe demurred it was resolved that every assignee of every Lessee mediatly or immediatly is within the said act for the Statute was made to suppresse fraud and deceipt and therefore it should be taken most beneficially Secondly that he in remainder is within the said act as well as he in reversion Thirdly the intent of fraud aforesaid is not traversable but the taking of the profits which is a thing notorious whereof the Country may have knowledge In a formedon the tenant pleaded Non tenure the demandant said that he made a Feoffment to persons unknowne to defraud him of his tenancy and to keepe the profits the pernancy of the profits and not the Feoffment is traversable Samons case 36. Eliz. Banco Regis fol. 77. THe plaintiffe and defendant referred all controversies to the Arbitrement of J. S. who did arbitrate that the defendant shall enter into an obligation to the plaintiffe that the plaintiffe and his wife shall injoy certeine lands which he had not done this is voyde for the incerteinty of what summe the obligation shall be for the award ought to be certeine like a Judgement Also the award was voyde as to the feme for she was a stranger to the submission Grayes case 37. Eliz. Banco Regis fol. 78. Replevin THe plaintiffe intitles himselfe in barre to the avowry to Common c. which was traversed the Jury found that every c. time of minde have used to pay for the Common a henne and five egges the plaintiffe had Judgement for he needs not shew more then makes for him for this is not Modus Communiae paying so much nor parcell of the issue but a collaterall recompence to be paid for the Common for which the Terretenant had remedy but if the Terretenant had no remedy then the Commoner shall have the Common sub modo and may be disturbed by the Terretenant Fitz-Herberts case 37. Eliz. Banco Regis fol. 79. THe father tenant for life the remainder to the sonne in taile leaseth for yeares to A. to the intent to barre the sonne A. infeoffeth J. S. to whom the father releaseth with warranty and dyeth this doth not barre the sonne for although that the disseisin which is made by the feoffment precedes the warranty yet because it was to that intent the Law will adjudge upon the intire act and so a warranty by disseisin 2. Although the disseisin was made to the father yet because he consented unto it the warranty commenceth by disseisin but if the father had made a feoffment in fee and dyed this shall binde the sonne if it be with warranty Foordes case 37. Eliz. Com' Banco fol. 81. A Prebend leaseth for 70. an Patron Deane and Chapter confirme dimissionem praedictam in forma praedicta fact ' for 51. yeares non ultra this is a confirmation for all the Terme for when they confirme dimissionem c. for 51. yeares it is repugnant but if they had recited the Lease and confirmed the land for 51. yeares this had been good for they have an authority coupled with an interest otherwise if onely a bare authority but by what words soever they confirme a lease for life or a gift in taile for part this is a confirmation of all because they are intire so if the estate of the disseisor or his lessee for life be confirmed for an houre yet all is confirmed Cases of Customes Snellings case 37. Eliz. Com' Banco fol. 82. S. Brings Debt upon an Obligation against an Administrator who pleads there is a custome in L. that an Administrator shall pay debts upon contract to a Citizen as well as upon Obligation and that J. S. upon a Contract had recovered and good 1. Resol Although that debt is given against an Administrator by the Statute of 31. E. 3. yet because they were charged as Executors before so that onely the name is changed the custome generally alledged is good 2. The ordinary by taking the goods was chargeable at the Common Law 3. This custome bindeth strangers The case of Markett overt 38. Eliz. fo 83. SHopps in L. are Marketts overt for things to be sold there by the trade of the owner therefore if plate be sold there in a Scriveners shop the property is not altered otherwise if in a Goldsmiths shop if he who passeth in the street may see it Nota the reason of this case extends to all Marketts overt in England Perimans case 41. Eliz. Com. Banco fol. 84. IT is a good Custome of a mannor that all sales of lands within that mannor be presented at the Court of the Mannor Obj. What remedy if the Steward will not accept the presentment Resp What remedy if the Clerke will not Inrolle a deede of bargaine and sale and therefore Caveat Emptor 2. Obj. That Interest is by the feoffment vested in the feoffee which shall not be devested by the Custome Resp That livery was ordained to give notice and a Custome which addeth more solemnity and notice is good Sir Henry Knivets case 38. Eliz. Banco Regis fol. 85. TEnant for life the remainder in fee leaseth for yeares the Termor is ousted the disseisor leaseth for yeares his lessee sowes the land tenant for life dyes he
tender more then he is bound to pay it is good Omne majus continet in se minus That the tendring of 250. li. in bags without shewing or numbering the same is good tender if the truth be that there was so much vide Winters case if there be any counterfeit money in the same yet if the partie then accept the same he cannot compell the partie to change it or if it be a rent or for non-payment a reentree yet the once acceptance is good and the lessor may not reenter Foliambes Case 43. Eliz. fo 115. IN a writ of Estrepement the Sheriffe may resist them that will make wast or cut downe Trees and if he cannot otherwise he may Imprison them and may make warrants to others and he may take Posse comitatus for his aide A writ of Estrepement lyeth in an Action of wast as well before judgement as after Olands Case 44. Eliz. Banco regis fo 116. A Feme Copy holder Durante viduitate sowes the Land and taketh Husband the Lord shall have the Corne for although her estate was incertaine yet it was determined by her owne act so if Lessee at will sowe the Land and determine the will but if Baron and Feme are Lessees during the coverture and the Baron sowe the Land and they are after Divorsed Causa praecontractus the Baron shall have the Emblements because this is the Act of the Court. Pynnells Case 44. Eliz. fo 117. com banco PYnnell brought an Action of Debt upon an Obligation against Cole of 16. l. for payment of 8. l. 10. s. on the 11. of Nov. 1600. The Defendant pleaded that at the instance of the Plaintiffe before the sayd day he paid him 5. l 10. s. and it was resolved by all the Court that the payment of a lesser summe in satisfaction of a greater summe cannot be satisfaction for all so that by no possibility a meaner summe may satisfie the Plaintiffe of a greater but the Gift of an Horse Cowe Robe c. in satisfaction is good But in this case it was resolved That the payment of a parcell and acceptance thereof before the day in satisfaction of all is a good satisfaction in respect of the circumstance of time for paradventure parcell of that before the day may be more beneficiall unto him then the whose summe of money at the day and the value of satisfaction is not materiall for if I be bound to pay you 10. l. at Westminster and you request me to pay 5. l. at Yorke and you will accept the same in full satisfaction of the 10. l. this is a good satisfaction in respect of the place but in this case the Plaintiffe had judgement for the insufficient pleading for he did not pleade that he had paid 5. l. 10 s in full satisfaction as by Law he ought but pleaded the payment of part generally and the Plaintiffe accepted the same in full satisfaction and alwayes the manner of the tender and of the payment shall be directed by him that maketh the tender and payment and not by him that accepteth it Edriches Case 1. Jacobi com banco fo 118. A Rent charge is granted to B. for the life of C. the Grantor leaseth for life to D. the remainder in Fee to E. C. and D. dyes B. distraines E. for all arreares this is good by the Statute of 32. H. 8. cap. 37. Whelpdales Case 2. Jacobi com banco fo 119. IN Debt brought against one joint Obligor the Defendant pleads Non est factum adjudged for the Plaintiffe 1. Resolved he may pleade in abatement of the Writ but not Non est factum for every one is obliged in the intirety therefore if Debt be brought against both and one is outlawed the other who appeares shall be charged with all 2. If a Deede be avoidable by plea he shall not pleade Non est factum 3. If a Deede be made voyd by Statute he shall not pleade Non est factum but shall avoide it by plea but if a deede by matter Ex post facto become not his deede he may pleade Non est factum as if one deliver a deede to deliver over to I. S. who refuseth c. Longs Case 2. Jacobi banco regis fo 120. EXception to the Inditement of Murder the Inditement was taken Infra libertatem villae de C. and C. where the Torte is done is not said to be within the Liberty Response that to Inditements certainty to a certaine intent in generall sufficeth and not to every particular intent for that is Nimia subtilitas and it shall be intended that the Ville of C. is within the liberty of C. the Indictment is Quod dedit vulnus super anteriorem partem corporis subter mamillam where it should be Mammillam Resolved that false Latine shall not quash an Indictment if the word be sensible and these two words are good Latine also this is superfluous for Super anteriorem partem corporis is sufficient and shall be intended the Trunke betwixt the Neck and Thighs 3. Vulnus where it should be Plaga over-ruled because Synonima 4. Le depthe is not shewed it was said that it did penetrate all his body whereby it appeareth that it was mortall 5. It is said that the wound did penetrate his body and not the Bullet this is significant enough 6. Percussit wanteth and for this cause the Indictment was quashed for in all cases of death this ought to be except in case of poysoning and for this last error the Outlary was reversed and H. D. was discharged Saffins Case 3. Jacob. fo 123. com banco A Man maketh a Lease for yeares to commence after the end or determination of a former Lease In esse The first Lease endeth the second Lessee doth not enter but he in reversion entereth and maketh a Feoffement and levyeth a fine with Proclamations and five yeares passe without entry or claime of the second Lessee If this fine be a Bar was the Question and it was resolved to be a Bar for the Statute of 4. H. 7. c. 24. speakes of interest and a Lease for yeares is an interest within the Statute so oâ— tenant by Elegit c. De Libellis famosis 3. Jac. fo 125. A Libell may be made as well against a private man as against a Magistrate Non refert whither the Libell be true or whither the party be of good fame or ill fame for it inciteth all the same Family Kindred or Society to revenge and so tendeth by consequence to the effusion of blood It was resolved in the Starre-Chamber 44. Eliz. Hallywoods Case that if any finde a Libell and would preserve himselfe out of danger if it be against a private man the finder may eyther burne it or presently deliver it to a Magistrate but if it concerne a Magistrate or publick person then he ought to give it to a Magistrate A Libell may be as well by words Verbis aut cantilenis as Writings and by Pictures
in Banco Regis BY the Law it is not sufficient that the testator be of memory when he makes his Will to answer to ordinary and usuall questions but he ought to have a disposing memory so as he is able to make disposition of his Lands with understanding and reason And this is such a memory which is called safe and perfect memory otherwise a Prohibition lyeth at the common Law generally to stay all the proceedings in the spirituall Court as the probate of the Will c. untill this Suggestion be tryed at the common Law Reades Case 42. Eliz. banco regis fo 24. IN trespasse the Defendant makes Title for that A. W. was seised in fee and leased to him the Plaintiffe maketh title by discent and traverseth the Lease and good for it may be true that A. W. was seised and yet that a discent was cast to the Plaintiffe therefore the Lease is most materiall to be traversed Helyars Case 41. Eliz. banco regis fo 24. IN a Replevin the Defendant avoweth by grant of a terme by I. A. to S. from whom he claimeth the Plaintiffe pleads in barre that I. A. married T. who by a former deed granted the terme to the plaintiffe and traverseth the grant made to S. and vitious for he who claimeth by the first assignement shall not traverse the second but he who claimes by the second shall traverse the first But the first Feoffee shall traverse the last feoffment and the last feoffee shall not traverse the first feoffement because fee may be gained by disseisin after the first feoffement but a Lease for yeares caanot Ruddocks case 41. Eliz. banco regis fo 25. IN replevyn against six the Plaintiffe recovers the Defendants bring error the Plaintiffe pleads the release of one of them not good Where diverse are to recover a personall thing the release or default of one barres all but not where they are to discharge themselves of a personalty if they are compelled to joyne as in error and attaint otherwise in Outlary because not compellable to joyne for where they are to discharge themselves they have no joynt interest and although they shall have their damages againe it shall be intended that they paid them of their severall goods otherwise it may be doubted if Execution had beene made of goods which they have joyntly Sharps case 42. Eliz. fo 26. com banco IF a man make a feoffement in Fee or a Lease for life and say to the Feoffee being eyther on the Lands of within the view Enter into this Land and enjoy the same according to this deed c. this is a good livery but the delivery of the deede upon the Lands without any further ceremony or saying doth not amount to a livery Throughgoods Case 9. Jacob in the nineth Booke The actuall delivery of a Writing sealed to the party without any words is a good livery but not a livery of seisin although the Party be upon the ground If I deliver a deede unto the feoffee or Lessee of the Messuage mentioned in the deede in the name of seisin of the said Messuage and of all the Lands tenements c. in the same contained or other such like words without any ceremony or act done this is a good seisin The Case of Souldiers 43. Eliz. fo 27. THe Statutes of 7. H. 7. cap. 1. and 3. H. 8. cap. 5. against Souldiers who run away are acts perpetuall for the word King includeth all his succession and a gift to the King inureth to his Successors Vicount Mountagues Case 43. Eliz. in Scaccar fol. 27. VIcount M. with License of the K. suffers a recovery to B. and D. to uses with power of revocation and limitting of new and revokes and limits new uses the King shall have no fine for alienation 1. Resolved if the King doth license to alien to one and alienation is made to the use of another the King shall not have a fine for although that the King was not informed of his Tenant yet the use is executed by the Statute of 27. H. 8. which can doe no wrong and the proviso in the Statute that a fine shall be paid for executing of uses is to be intended of uses raised by Covenant or declared upon a Fine Feoffement c. when no License of alienation is obtained 2. Although that by revocation and new limittation of uses the tenant of the King be altered yet no fine is due because all ariseth out of the estate of B. and D. which was made with License Greenes Case 44. Eliz. banco regis fol. 29. TEnant for life of a Mannor to which an advowson is appendant the remainder in Fee to I. S. presenteth one who at the suite of the Tenant for life is deprived for not reading the Articles but no notice is given to the Patron the Queene by lapse presents the Defendant Tenant for life and his incumbent die he in the remainder presents the Plaintiffe Greene who recovereth 1. Resolv Although the Patron were party to the Suite and so had notice yet lapse shall not incurre without notice given by the ordinary as the Statute speakes and the notice ought to be speciall that he did not reade the Articles and therefore was deprived and generall notice is not sufficient 2. The Church is voyd Ipso facto by the Statute of 13. Eliz. without deprivation 3. If the Queene present Ratione Lapsus where shee is Patron this is voyd A fortiori when shee had no title at all 4. The Patron is not put to a Quare impedit by presenting him who read not the Articles nor by Collation but by Collation of him who had right to Collate the Patron is put out of possession 5. The Queene may be put out of possession of an advowson because it is transitory but shee cannot be put to a Writ of right of advowson for none can gaine the Inheritance from her by wrong Boothies Case 3. Jacobi com banco fol. 30. THe condition of an Obligation is to deliver an Obligation to the Obligee and to acknowledge satisfaction it must be done in convenient time for acts transitory to be done to the Obligee although a place be appointed shall be done in convenient time and acts of their nature locall ought to be performed in convenient time if concurrence of the Obligor and Obligee be not requisite Also here the delivery of the bond being transitory and the acknowleding satisfaction such an act as may be performed in the absence of the Obligee they ought to be done in convenient time without request but if the Act be locall and their concurrence necessary the Obligor had time during his Life if not hastened by request If the concurrence of the Obligor and a stranger be necessary it ought to be done in convenient time if concurrence of the Obligee and a stranger it ought to be hastened by request And alwaies if the Act to be done is not for the benefit of the Obligee
if it appeare to the Court that an action is not maintainable without the doing of it there the doing of it must be averred as if an Abbot sole grants an annuity to J. S. Pro Consilio c. in action brought against the successor he must averre that he had given Counsell c. to the use of the House otherwise if against the grantor Englefields case 34. Eliz. in Scaccario fol. 11. SIr F. E. covenanted to stand seised to the use of himselfe for life the remainder to his Nephew Proviso that it shall be voyde upon tender of a Ring by him after he was attainted of Treason and all his inheritances forfeited by Statute the Queene leaseth to the defendant for forty yeares by Statute it was inacted that every one who had a patent of land of a person attainted shall exhibit it into the Exchequer within two yeares to be Inrolled one authorized by Letters patents in the name of the Queene tenders the Ring in the life of Sir Fr. the Queene bringeth Intrusion 1. Resol When the Q. tenant pur auter vie leaseth for yeares this is good without recitall of her estate for it is lesse then her estate as if she grant Totum statum suum for there is no torte and she is not deceived 2. That this condition is given to the Q. but object 1. That it was inseparable from Sir Fr. for his intent was the substance of it and his intent cannot be transferred over 2. Naturall affection is made the Judge whether the Nephew deserve that the use shall be revoked and in so much that naturall affection cannot be transferred no more can this condition which was created by naturall affection and naturall affection determineth the estate 3. Although the benefit of this collaterall condition be given to the Q. the performance is not As to the first and second It was answered that the condition is onely the substance and all the residue is but a flourish and that is not an inseparable condition for any one may tender a Ring as well as he As to the third The performance is given to the Q. as incident to the Condition 4. It was objected that the estate of Sir Fr. was not subject to the condition because he was not possessed by limitation of use and by 27. H. 8. but he was seised of his auncient inheritance ergo the lease shall not be avoyded in the life of Sir Fr. It was answered that Sir Fr. was seised by limitation of use and that the lease shall be avoyded 5. It was objected that the Q. having made this lease being seised pur auter vie by her owne act she shall not defeate it after It was answered that the Q. shall avoyde it for her grant shall not inure to two intents 1. to make the lease c. 2. to suspend the condition and when the Q had two rights she shall not loose both without speciall words 6. It was objected that this tender ought to be found by office because matter in paijs and if it be false the party hath no remedy because the certificat is not traversable It was answered that Certificats which informe the Q. of her title are traversable but Certificats which are in nature of Trialls are not also by the Tender the uses are determined and by the attainder and the act of 33. H. 8. the land is vested in the Q. 7. It was objected that the conveyance was voyd because it was not inrolled within two yeares as the Statute requires and so Sir Fr. was seised in fee and the lease unavoydable It was answered that it was tendred in the Exchequer to be inrolled within two yeares which is all the Statute requireth the forfeiture was established by a speciall act 35. Eliz. The Case of Swannes 34. Eliz. fol. 15. A Game of Swannes in a common River are seised into the Queenes hands upon office found I. Y. pleads that Abbas c. gavisi fuerunt totoproficuo omnium cignorum in aestuaria praedict indificantium and makes her selfe title to them prayeth an ouster Le manie All White Swannes in a common River who have gained their naturall liberty may be seised for the King because they are Volatilia regalia but a Subject may have them in his owne River and if they escape into a common River he may take them againe upon fresh persuite Cignets shall be divided betweene the owners of the Swannes equally but upon the Thames the owner of the Land shall have the third by the custome whosoever hath a Swan-marke must have it by grant of the King or prescription and he may grant it over and he ought to have freehold of five Marks per annum by the Statute of 22. E. 4. c. 6. A man may prescribe to have Wyld Swannes but not as here but that the Abbot c. have used to take of them to their owne use and therefore adjudged against I. Y. A Swanne may be an estray and so cannot any other fowle Sir Thomas Cecils Case 40. Eliz. in Scaccario fol. 18. SIr T. C. entered into an obligation to the Queene to performe Covenants and shewed in the Exchequer-Chamber matter of equity to discharge him of the said Debt according to the Statute of 33. H. 8. c. 39. 1. Resol that Branch of the Statute which giveth liberty to the Subject to plead matter in equity in barre of Debt due unto the King extendeth to Debts due at the common Law as well as by this Statute because this Statute gives more speedy remedy for them and so within the purview thereof and so the other proviso of equall charging of Lands Subject to Deb. t s of the King is generall 2. The Court of Exchequer-Chamber in this case may decree upon English bill although that Processe be in the Exchequer at the common Law because to that purpose they are as one Court 3. An obligation to performe Covenants after Breach of them is within the Statute The Lord Andersons Case 41. Eliz. in Scaccar fo 21. TEnant in taile is bound by recognizance to I. S. who is attainted Tenant in taile dyes his issue aliens Bona fide the King shall not extend these Lands by the Statute 33. H. 8. c. 39. 1. Before that Statuâ—e the King could not extend Lands in the hands of the issue in taile for the Debt of his auncestor because he was bound by W. 2. De Donis 2. By that Statute Lands are extendable in the hands of the issue in taile for Debt due to the King by judgement recognizance obligation or other specialty and other cases are out of the Statute 3. The Alienee Bona fide is not within the Statute because favoured as a purchasor and he is a stranger to the Debt and comes in upon good consideration and benefit is given against the issue in taile which was not before 4. Debts due to a Subject and forfeited to the King are not within the Statute for they are not due originally
to the King by any of the said foure wayes mentioned in the Act. Butts Case 42. Eliz. in com banco fo 23. A. Seised of black acre in fee and of white acre for yeares grants a rent charge to B. for life with distresse in both B. distreines and avowes in white acre and good 1. Resol white acre is charged during the terme and life of B. 2. All the rent issueth out of black acre for as an estate of freehold it cannot issue out of white acre nor as freehold out of black acre and a chattell out of white acre because intire it cannot be construed to be two rents contrary to the intent of the parties and therefore an acceptance of a Lease of white acre doth not suspend it and in an assize black acre onely shall be put in view 3. Although the rent issueth onely out of black acre yet white acre is charged with a distresse If a rent be granted out of three acres with clause of distresse in one this is a rent seck for all yet the grantee shall distreine in the third acre for it so if a rent be granted to two with clause of distresse to one of them but a rent may be seck and charge at severall times and therefore if a rent be granted in fee with distresse for life it is a rent charge for life and seck after but if the Clause of distresse be for yeares it is a rent seck for all because the freehold is seck The avowry was insufficient 1. Because he said the rent issued out of white acre where it issued out of black acre and although the Plaintiffe had disclosed the truth in his plea in barre this doth not salve the matter in substance vitious in the avowry 2. He deriveth the rent but of white acre Virtute cujus he was seised for life which is repugnant to have a freehold out of a Chattell and so judgement given against him for insufficient pleading Cases of Quare Impedit Halls Case 31. Eliz. fo 25. A Quare impedit against the Bishop and incumbent without naming the Patron the writ shall abate 1. It is not reason the Patron shall loose his Patronage without being named in case where he may be named as here 2. The incumbent at the common Law could not pleade to the Patronage and therefore it is no reason that he who cannot pleade be named and he who can omitted but now the incumbent may pleade to the patronage by the Statute of 25. E. 3. cap. 7. which inableth the possessor to counterpleade the title of the King and by equity against a common person in the one case after induction in the other after institution But in case where the Patronage shall not be recovered or that the Patron cannot be named as in the Kings Case a Quare impedit shall be against the incumbent sole or against him and the ordinary so if a Bishop disturbe and die it shall be against the incumbent sole if a Patron be named and die if the writ shall not abate he shall be out of possession and if it shall abate the torte shall not be punished but if the Patron be put out of possession he hath remedy by writ of right and if it shall abate the Plaintiffe is without remedy therefore the writ shall stand Sir Hugh Portmans Case 40. Eliz. fol. 27. IF the Plaintiffe in a Quare impedit after appearance be non-suite or discontinue or be made a Knight pending the writ this is peremptory because it is his owne act otherwise if the writ abate for default of forme or by misnosmer for this may be the default of the Clerke Baskervills Case 27. Eliz. fo 28. TItle devolveth to the King to present by lapse the Patron presents one who dyeth the King hath lost the presentation for he having the first presentation he shall not have the second otherwise the King may suffer Strangers to present one after another and take his turne when he pleaseth and by that meanes the Patron shall be in a manner disinherited and the Statute of Praerogativa Regis nullum tempus occurit Regi is to be intended when the King hath a permanent Title and not transitory when time is the substance of his Title Maunds Case 43. Eliz. fo 28. IN case of a reentry for non-payment of rent or when any summe Nomine penae is to be forfeite in both the cases demand ought to be made precisely on the day a convenient time before the setting of the Sunne in the one case in respect of a condition and in the other in respect of the penalty but in case of a distresse he that hath the rent may demand the same at what time pleaseth him for no Losse or penalty insueth thereupon but onely a remedy to come by his rent and if demand be made any time after the day and before the distresse it sufficeth Discontinuance of Processe c. by the Death of the Queene Trin. 〈◊〉 Jacobi fol. 29. UPon a generall resummons the originall and the issue are revived and not the meane processed or Voucher nor Garnishment but all the Processe is revived upon a speciall resummons but not in ayde prayer or if a Verdict be given and the King dieth before the day in banck because there summons lyeth not therefore he shall not have resummons but in case of Verdict he for whom it is given may have his judgement upon Scire facias But now by the Statute of 1. E. 6. an action suite bill or plaint shall not be discontinued if they are returned otherwise if not because the Statute saith Depending If one deliver an appeale to the Sheriffe within the yeare and the King dyeth for necessity the Plaintiffe shall have a Certiorari and reattachment so if a formedon be brought within a yeare against the pernor of the profits offices of Sheriffes not being of inheritance or by Charter are determined by the death of the King Suites depending in inferiour Courts are out of the Statute if the King dye after information preferred by him all the proceeding is lost but the information shall stand 1. Because this is a record for the King which shall not abate 2. Because informations upon certeine Statutes are to be preferred within certeine time but if the King bring an originall and dye this is lost if one plead to an Indictment and the King dye he shall plead De novo but if he be convicted judgement may be given in the time of another King by the said Statute and noâ—… Case of a Fine levyed by the King tenant in taile fo 32 Michaelmas 2. Jacobi A Fine levyed by the King tenant in taile by gift of his auncestor who was a subject barreth the taile 1. It is reason that as the King is bound by the Statute of W. 2. De donis that he should have benefit of the Acts of 4. H. 7. 32. H. 8. 2. A generall Statute bindeth the King of Lands discended
from an auncestor a Subject but not where it discends from an auncestor who was King except in speciall cases 3. The issues of the King at the time of the levying of the fine are subjects therefore within the Statute and it seemd to them that there ought to be Letters Patents to give power to the Conisee to enter into the Land Nevills Case 2. Jacobi fo 33. THe dignity of an Earle intailed is forfeitable for treason 1. Resolved this is within the Statute of W. 2. De donis and experience is to give dignities in taile with remainders over also this was an office anciently and offices may be intailed 2. A dignity may be forfeited at the common Law by a condition in Law for the Office of Earle was Ad consulendum Regem tempore pacis defendendum Regem tempore belli therefore he forfeits it when he takes Councell and Armes against him 3. If it were not forfeited by the common Law yet it is by 26. H. 8. cap. 13. by this word Hereditament and the words use or possession which are added are to shew that every Hereditament shall be forfeited at the common Law Donee in taile had Potestatem alienandi post prolem suscitatam but if hee reteine the Land himselfe he hath no absolute fee for none shall inherit but the heire Per formam doni so it is now in case of annuity and other things out of the Statute Penall Statutes 2. Ja. fo 36. WHen a Statute is made by Parliament the King cannot give the penalty benefit or dispensation of the same to any Subject but the King may make a Non obstante to dispense with any perticular person that he shall not incurre the penalty of a Stature and the King after a forfeiture or penalty of a Statute by judgement and recovery may grant the same to any of his Subjects by way of reward and all the Judges of England subscribed to this the 8. Day of November 1604. Lillingstons Case 5. Jacobi fo 38. TEnant in fee grants a rent charge proviso that the person of the grantor shall not be charged the grantee acknowledgeth a recognizance according to 23. H. 8. and after releaseth to the grantor the conisee sueth an extent and brings debt against the grantor Terretenant 1. Resolved the rent is extendable for notwithstanding the release it is In esse as to the Conisee and cannot be discharged by the act of the Conisor also the extent relateth to the judgement at which time it was extendable See the Lord Aburgavenies Case in the sixth Report 2. Debt lyeth not so long as the extent indureth for so long the rent hath continuance although that by the release the freehold be determined if a rent charge be granted for life with proviso as above-said if the rent be determined debt lyeth against the grantor because he had no other remedy Bedels Case 5. Jacobi fo 40. R. B. Covenants in consideration of paternall love c. to stand seised to the use of himselfe for life the remainder to his Wife for life the remainder over 1. Resolv although the consideration in the deed runneth not to the Wife yet another consideration may be averred which stands with the Deed. The limittation of an use to the Wife importeth a consideration in it selfe so if it be to any of his blood but if he Covenant in consideration of a 100. l. to stand seised to the use of his Sonne nothing passeth untill inrollment Quia expressum facit cessare tacitum Beresfords Case 5. Jacobi fo 41. AN use is limitted to A B. and of the heires Males of the said A. lawfully begotten this is fee taile notwithstanding the words of the Body be wanting and that lawfully begotten are implied for no heire shall inherit who is not lawfully begotten Resolved that to create an inheritance the word Heires is necessary but the words De corpore are not necessary to make an estate taile if there be words which Tantamount and here the sence according to the intent of the Donor is of or by the said A. lawfully begotten A gift to a man haeredibus de se exeuntibus or Haeredibus suis de prima uxore sua are estates taile Kenns Case 4. Jacobi fo 42. C. K. had issue by E. S. M. K. and they are divorced and the Marriage sentenced void C. K. marrieth F. they have issue E. K. C. dyeth E. K. is found by office to be Heire M. and W. her Baron preferre a bill in the Court of wards to traverse the Office to which the Committees of the wardship answer one of the Committees dyeth M. and W. sue a Bill of Reviver and M. having issue E. dyeth E. her issue and R. her Baron bring a new Bill of Reviver 1. Resolved so long as the sentence stands in force the issue of the first feme is a Bastard because the spirituall Judge hath jurisdiction thereof and our Law giveth faith unto it Sentence of divorse may be repealed after the death of the parties but no divorse can be after their dearh for that will Bastardise the issue and the Court of the King hath triall of it originally not being hindered by any Sentence 2. The Plaintiffe shall not have a traverse without an office found for her for the King being sure of wardship shall not be ousted by one before that he be sure to have benefit by him and 2. E. 6. cap 8. doth not extend to give a traverse without office but if by two offices two are found Heires whereof one is within age by that Statute the other may traverse immediatly 3. A bill of reviver upon a bill of reviver shall not be suffered for the infinitnesse no more then a Writ by Journeys accompts By all the last bill was absurd which prayeth that the first bill be revived because M. was dead but it ought to be that her Heire may traverse The End of the Seaventh Booke THE EIGHTH BOOK The Princes Case 3. Jacobi in Chancery fo 1. THE Queene 37. Eliz. grants three Mannors parcell of the Duchee of C. to H. L. and G. M. the King at the supplication of the Prince brings a Scire facias against the said H. L. and S.H. to make Livery to the Prince by force of the Statute of 11. E. 3. H. L. pleads Null tielum recorde S. H. pleads the Patents with a Non obstante 32. H. 8. whereby these Mannors were made parcell of c. and the Act of Confirmation 43. Eliz. As to the plea of H. L. the Atturney sheweth an Inspeximus and demurreth upon the plea of the other two who joyne and as Amici curiae repeate part of the Statute of 1. H. 7. touching the Duchie H. L. demurreth 1. Resolv the Charter of creation of the Prince Duke of C. 11. E. 3. is an Act of Parliament for such a limittation to the first-begotten Son is void without Statute for if Grandfather King the Father Duke and Sonne be if
the King dyes the Father is King and the Son Duke by the said Statute against the rules of Law 2. The Lands cannot be so annexed to the Duchie that they cannot be severed without Statute 3. The estate is limitted to cease when the King hath no first begotten Son and to revive when he hath which cannot be without Statute 4. It should be absurd that six being then created Earles that their creation should be firme and the Creation of the Prince void 5. In the Charter there is De communi consilio Praelatorum c. and in the end Per ipsum Regem totum concilium in Parliamento such an Act as beginneth Rex Statuit and alwayes reputed for a Statute shall not be drawne in question but if it be Rex ex assensu the Commons or Lords omitting the other part it is voide 2. The said Charter having the force of a Statute is good without aid of any other Statute and although the King in his Scire facias recite another Act for thâ—s surplus the writ shall not abate 3. The Prince had the Dukedome in Fee for it is an inheritance because 21. E. 3. 41. the Princesse was indowed and it is no estate taile because it is not limitted of what body it shall come but onely that they shall be Heires to the black Prince 4. Against a generall Statute Nul tiel recorde shall not be pleaded for although it be lost yet the Judges ought to take notice of it and this is such an one which concernes the Prince and the Statute of confirmations doth not extend unto it 1. Because this hath a speciall relation to certeine defects as Misnosiner c. 2. Patents are made good onely against the King saving the right of others therefore the Princes right is saved In a Scire facias the King or Prince may reply but the most formall way is for the Attourney to replie as here he did No Sonne of the King but his first begotten shall be Duke of C. although he be Heire apparent to the Crowne Calyes Case 26. Eliz. Banco regis fo 32. 1. REsolved that to maintaine an action against an Inkeeper for goods lost c. it ought to be a common June 2. He ought to be a Passenger therefore a Neighbour shall not 3. An inholder shall not answer for any thing but that which is Infra hospitium therefore if a Passenger require that his Horse be put to grasse the inholder shall not answer if he be stollen otherwise if he require it not 4. There ought to be a default in the Inholder or his Servants therefore if a Guest bring one with him who stealeth the goods the Inholder shall not be charged otherwise if the Hostler appoint one with him in his Chamber who doth it But an inholder shall not be charged if he require the Guest to put his goods in a Chamber and he leaves them in the Court but it is no excuse to the Inholder that he delivered the Key of the Chamber to the Guest or that no goods were delivered to him 5. The Hostler shall answer for Charters if they be stollen but not if a Guest be beaten and all this appeares by the Writ and the words of it Paynes Case 29. Eliz. com banco fo 34. A Feme Tenant in taile taketh Baron and hath issue who is heard to cry and dyeth the Feme dyeth without issue the Husband shall be Tenant by the courtesie for although the state of the Feme be determined yet it is Tacite implied in the guift that every Husband of a Feme inheritable to the said estate shall have the Land for his life after the death of the Feme if he be intitled to be Tenant by the courtesie If a Feme be delivered of a Monster this doth not intitle the Husband to be Tenant by the curtesie otherwise it is if the issue had humane shape but is blemished if a Feme be ripped and the issue taken out of her Wombe the Baron shall not be Tenant by the curtesie otherwise it is if the issue which they had dyes and Lands discends after A man shall not be Tenant by the courtesie but where his issue may inherit as heire to the Feme therefore he shall not be of a possession in Law because there he makes title from the auncester of the Feme and not from the Feme Barretry 30. Eliz. fol. 36. A common Barretor is a common maintainer of Suites or quarrells in Courts or in the Countrey As first in disturbance of the peace Secondly in taking and keeping of possession with force or deceite Thirdly by false calumniation and sowing of Quarrells but to indite him of it it ought not to be that he hath done so twice or thrice but that he is a common doer of them Grieslies Case 30. Eliz. com banco fo 38. BY the custome one is chosen in a Leete to be Constable who refuseth and departeth out of the Court the Steward imposeth a Fine of 5. l. upon him for which the Bailiffes of the Lord distreine and he brings a replevin 1. Resolved every Judge of record may assesse a reasonable fine upon any man who makes contempt or disturbance to the Court but a Judge who is not of record cannot 2. This fine heeds not to be afferred because the Statute of Mag. Ch. speakes of Amerciaments and not of Fines for a fine is imposed by the Court and an Amerciament by the Jury therefore the Judgement in an Amerciament is generall Quod sit in misericordia and after upon estreits directed to the Coroners they are afferred and the Statute is that a Noble man shall be Amerced by his Peers which is not used at this day because it is reduced to a certeinty Viz. A Duke to 10. l. and others to 5. l. but an Amerciament of an Officer of the Court or he who hath execution of Writs shall be afferred by the Court so of any who is Judge as Suitors If a Juror appeare and is adjourned to a day of which he makes default this shall be inquired by his Companions for he shall be fined to the value of his Land per annum which the Court cannot know 3. A distresse may be taken for a fine without custome or for an Amerciament which is lesse Whittinghams Case 45. Eliz. fo 42. IT was resolved that if there be Lord and Tenant an Infant and the Infant make a feoffement in fee and execute the same by livery of seisin by his owne hands and after dye without heires in this case the Lord shall not have the benefit of the escheate and the Feoffement is unavoidable There be three manner of privities Viz. privity in blood 2. Privity in estate 3. Privity in Law Privities in blood as heires in blood privity in estate as joyntenants Baron and Feme Donor and Donee Lessor and Lessee c. privities in Law as Lord by escheate Lord of a Villaine c. If a Lessee for life
the Lord distreine when no rent is arreare the Tenant or Lessee may make rescons and so releive himselfe The Abbot of Strata Mercella his Case 34. Eliz. fol. 23. IN a Quo warranto for claiming Waifes c. and Fellons goods c. the Defendant pleaded as to the Fellons goods that the Abbot of S. M. Licite habuit gavisus fuit them untill the Abbey was granted to the King by 27. H. 8. and pleads also 32. H. 8. c. 20. of reviving of priviledges of Abbies and that the K. granted a Mannor parcell of the Abbey tot talia tanta privilegia as the late A. had to one by whom he claimed by feoffement and pleaded not the feoffement by deede Judgement against the Defendant for the Queene it was said that the Charter of the Defendant was void 1. Because it appeares not what estate the Abbot had 2. Because the Defendant claimeth Catalla felonum appendant to a Mannor because he pleaded a feoffement of the Mannor and had not pleaded it by deed without which the priviledges doe not passe To the first the Court answered that it shall be intended a seisin in fee untill the contrary be shewed To the second no resolution but it was resolved that if the K. grant a Mannor bona catalla felonum dicto Manerio spectant these passe although they cannot be appendant But for the third exception judgement was given against the Defendant In this Case foure things worthy of consideration 1. What ancient franchises ought to have allowance as to that some may be claimed by prescription without record and some by record onely and a Charter of the latter shall not be allowed if it be before time of memory if it be not allowed within time of memory as allowance in Eyre or confirmation by the K. but usage will not serve and no more shall be allowed then are confirmed Obscure words in these ancient Charters shall be construed according to ancient usage and not according to usage at this day 2. A man may prescribe in Franchises lying in poynt of Charter with aide of allowance in Eyre without shewing the Originall Charter 3. If a Patent of priviledges whereby they are granted in fee referre to a grant made before to one for life onely this is good for the relation is to the quality and not to the quantity of the estate See there what trialls shall be allowed by Law such priviledges as are ancient flowers of the Crowne as Bona catalla felonum fugitivorum c. if these come againe to the K. they are merged in the Crowne but not those which were erected and created by the K. as Faires Markets Parkes Warren and the like Bucknalls Case 42. Eliz. Com. banco fol. 33. IF the Lord avow for other services then the Tenure is traversable if for more services of the same nature the seisin is traversable for he may incroach and it cannot be avoided in an avowry if it be not for an outragious distresse but seisin binds not in Ne injuste vexes Cessavit Assize Rescons or Trespasse but in them he shall traverse the Tenure but issue in taile successor of a Bishop c. shall avoide seisin in an avowry and every one may that can shew a deed of the tenure but none shall have a Contraformam feoffamenti but the feoffee or his Heires and incroachment hurteth not where there is no Tenure and if an incroachment be of payment at more dayes if they agree in the Sum it doth not prejudice Seisin in an avowry is not traversable generally as never seised of the services because by that meanes he leaveth no remedy to the Lord by avowry but in such a Case he shall disclaime or pleade out of his fee and so traverse the Tenure He who denyeth seisin after the limittation must first acknowledge a Tenure that the Lord may have his Writ of Customes and Services as if the Avowry be for rent fealty and suite Henslowes Case 42. Eliz fol. 36. AN Action of Debt was brought against Gage and others as Executors one of the Executors refused before the ordinary the probate and the rest of the Executors proved the Testament it was adjudged that notwithstanding that refusall he may administer the will afterwards at his pleasure for when many are named Executors and some of them refuse and other some prove the Testament those which refused may afterwards administer notwithstanding the refusall before the Ordinary but if all refuse before the Ordinary and the Ordinary commit the administration to another then they cannot prove at any time and the Executor that proveth the will ought to name every other of the Executors that refused in every action for recovery of Debts of the Testator and they may release the debts duties c. and they which refused may have an Action by survivor and after that Executors have administred and have once taken upon them the charge of the Executor-ship they cannot refuse at any time after It is holden in 2. R. 3. tit testament 4. that it is but of late times that the Church had the probate of Testaments in this Land for 't was given by an act c. and in all other Nations it is not so but in England and in many places of England the Stewards in their Courts Baron have probate of Testaments in their temporall Courts at this day Lynwood who was Deane of the Arches and writ in Anno. Dom. 1422. did confesse the probate of Testaments to belong to the Ordinaries De consuetudine Angliae non de communi jure and that in other Realms the Ordinaries have not so and in another place he affirmeth that the power of the Bishop in probate of Testaments is Per consensum regni suorum procerum ab antiquo And I have seene a Booke in Latine published 1573. by the Reverend Father Matthew Parker Arch Bishop of Canterbury who was very Learned in matters of Antiquity in these words Rex Angliae olim erat consiliorum Ecclesiasti orum praeses vindex temeritatis romanae propugnator Religi nis nec ullam habebant Episcopi authoritatem praetam eam quam à rege acceptam referebant jus testamenta probandi non habebant administrationis potestatem cuique delegare non poterant It was resolved by Littleton Newton and Danby in 7. E 4. 14. that if all the Executors refuse before the Ordinary they may prove the Testament afterwards but I think this is before the Ordinary hath committed the administration for afterwards they cannot The Executors have their Title by their Testament which is temporall But to the suing of Actions in the Kings Courts the Judges will not admit the Executors for to sue except that they shew the Testament proved under the seale of the Ordinary duely but alwayes the Kings Courts have used to allow the probate of any of the Executors to inable them all to sue actions but the probate of the Testament doth not
such a possibility as may be released ought to be Propinqua and not Remota and it is more then a common possibility that an Executor will dye before 5000. yeares and the person who releaseth it ought to have it in certeine therefore if a remainder be limitted to the right Heires of I. S. his Eldest Sonne cannot release it because he is not certeine whither he shall be Heire at the death of his Father so if a Lease be made to Baron and Feme the remainder to the survivor of them for 21. yeares the Baron cannot grant this Tearme 4. This by her death goeth to her Executors therefore it may be extinguished by her if the disseissee release all actions to the disseissor who dyes the disseissee shall have a Writ of entry against his Heire or if Bailor release all Actions to the Bailee he shall have adetinue against his Executors 5. It is a present Legacy although the interest be In futuro and therefore the Legacy may be discharged and consequently the interest it selfe For Qui destruit medium destruit finem and this may be before assent of the Executor 6. Otherwise there would be a perpetuity of Chattells 2. By this release the Executor had a perfect estate for 5000. yeares absolutely 3. The request and acceptance of the release by the Executor amounteth to an agreement The Case of the Chancellour Masters and Schollers of the Vniversity of Oxford 11. Jacobi fol. 53. THe Statute of 3. Jacobi giveth presentments of Churches which belong to Recusants convicted to the Chancellour and Schollers of O. and makes grants of such Recusants void One indicted of recusancy grants a prochein avoidance and is after convicted the Church becommeth voyd the Chancellour Masters and Schollers bring a Quare impedit and averr that he remained a Recusant 1. Resol The grant of the next avoydance betwixt the Indictment and conviction is void for the Statute is that a Recusant convicted shall be disabled c. from the time of the Session of the Parliament so a grant of the next avoidance by an Abbot before surrender and after the Statute of 31 H. 8. cap. 13. of Monasteries is void so if an Officer of the King purchase Land and alien it and become indebted to the King this Land is lyable to the debt 2. Covine shall not be presumed if it be not averred and if the Jury finde that Covine was to one intent that shall not be taken to another intent therefore because it is not sayd that this grant was by Covine it shall not be intended 3. Although the Statute giveth the avoydances to the Chancellour and Schollers of O. yet they may bring a Quare impedit in the name of their Corporation and the misnaming of the Corporation doth not avoyd the act when it appeareth what Corporation is intended 2. It was pleaded that the Statute giveth it to the Chancellour Master and Schollers and the Defendant had demurred upon it 3. This being a private act it shall be taken as it is pleaded 4. The University must shew that the Grantor was a Recusant convicted at the time of the avoydance but not that he continued so because it is a Chattell vested in them which shall not be devested by his conformity after Judgement for the Plaintiffs The Bishop of Salisburies Case 11. Jacobi fol. 58. THe Defendant in a second deliverance pleads a grant of the Bishop of S. to E. G. and himselfe of the office of Surveiorship of his Mannors with a rent charge of twenty Nobles per annum with confirmation of the Deane and Chapter and that it is Antiquum officium used to be granted in such manner to such person and persons as the Bishop and his Predecessors shall please The Plaintiffe pleads the Statute of 1. Eliz. and that the sayd Office hath not beene used to be granted but for the life of one whereby the grant is voyd Et hoc paratus est verificare It was excepted to the Barr that the avowant had pleaded that the Bishop and his Predecessors have used to grant the said Office to such person or persons c. And the Plaintiffe pleads in barr that it had not been used to be granted but for one life and concludeth hoc paratus est c. where it ought to have been quod inquiratur per c. yet it is good because the avowry is in the disjunctive 2. It is not averred that the Bishop is dead and if he be not the grant is good during his life it is good for it appeareth by the words nuper Episcopum that he was dead or removed exceptions to the avowry that to say this is an ancient Office is too generall because hee made title to the Office it selfe but it had been good if he had claimed another thing by reason of the Office and the exception holden good It was objected that this grant was out of the Statute of 1. Eliz. because no parcell of the possessions of the Bishoprick as the Statute speaketh 2. Such things are restrained by the Statute whereof a rent may be reserved 3. If it had been an Office parcell of the Bishoprick which the Bishop might exercise this had been within the Statute but this is not so 4. If it be restrained for two lives then also for one life But it was Resolved that the sayd grant for two lives was voyd against the successor by the Statute of 1. Eliz. 1. Resol This grant had been good at the Common Law by confirmation of the Deane and Chapter 2. The Act of 32. H. 8. cap. 28. inableth the Bishop to make a Lease for 21. yeares or three lives observing the limitations of the Statute without the Deane and Chapter 3. The Statute of 1. Eliz. restraineth the Bishop to grant any parcell of his possessions or any thing belonging to his Bishoprick but for 21. yeares or three lives c. but against the Bishop himselfe it is good and this Office may be sayd belonging to his Bishoprick because he had an inheritance in the disposition of it and the intent of the Statute was to avoyd diminutions and dilapidations therefore a grant of such an ancient Office of service and necessity for one life as was accustomed is out of the Statute but more then that he cannot doe because it is not of necessity and the death of one of them in the life of the Bishop is not to the purpose for the grant was voyd against the successor and it shall not be made good by accident after 4. Such a grant for one life without confirmation of the Deane and Chapter is voyd because it is out of the Statute of 1. Eliz. and resolved also that although the Bishoprick be new yet a grant of a necessary Office with a reasonable Fee of which the Court shall judge bindeth the successor Nota Where there was a clause in 1. Eliz. that Bishops may grant to the Queene c. 1. Jacobi by Parliament restraineth
in the Kings Bench betweene Frampton and Frampton Tr 2. Jacobi Quia non refert an quis intentionem suam declaret verbis an rebus ipsis vel factis and when he limits new uses he signifieth his purpose to determine the uses before The End of the Tenth Booke THE ELEAVENTH BOOK The Lord de la Wares Case 39. Eliz. in Parliament fol. 1. THOMAS la Ware great Grandfather of the now Lord in 3. H. 8. was summoned to the Parliament by Writ and by 3. E. 6. it was enacted that William the Father of the now Lord Thomas shall be disabled to claime any dignity during his life notwithstanding W. was called to Parliament by Q. Elizabeth and sat as Puisne Lord and dyed and Thomas now Lord sued in Parliament to the Q. to be restored to the place of his Great-Grandfather that is betwixt the Lord Barkly and the Lord Willoughby of Eresby and resolved that he should be restored for his Fathers disability was not absolute by attainder but onely temporary and personall during his life and the acceptance of the new Dignity shall not hurt the Petitioner the Father being then disabled and an Esquire onely so that when the old and new Dignity descend together the old shall be preferred which resolutions by the Judges was well approved of by the Lords Committees and after confirmed by the Queene Auditor Curles Case 7. Jacobi fol. 2. QUeene Elizabeth grants Officium unius Auditorum Curiae Wardorum to W. T. and W. C. for life eorum diutius viventi the K. grants it in reversion to I. C. I. T. I. C. dyeth the K. grants it in reversion to R. P. W. T. dyeth 1. Resolved the grant of the Office Vnjus auditorum c. is good to two and the survivor of them for 32. H. 8. c. 46. maketh the two Auditors one Officer and the word Vnjus is not numerative but denoteth the unity of the Office 2. In such a grant the words eorum diutius viventi are not void for otherwise by the death of one of them the interest of both would be ended but now the survivor remaines auditor and another shall be added to him and till another is added to him his voice in Court is suspended because by the Statute there must be two so if the K. grant by a Patent to one and by another to another this is good and untill the second is added the first hath no voice in Court 3. The Nomination of Auditors ought to be under the Great Seale 4. This Office cannot be granted in reversion 1. Because it is judiciall and one cannot be Judge in futuro and perhaps he was sufficient at the time of the grant but not when it takes effect 2. Although it be in part judiciall and in part ministeriall yet it is intire and although ministeriall Offices may be granted in futuro yet this cannot because it is inseparably judiciall also for the K. cannot grant the judiciall part to one or two and the ministeriall to others 3. If the grant be good as to the ministeriall part yet it shall not take effect now because one of the ancient Officers is living and if he should exercise the ministeriall part with the survivor there would be three Offices 5. He who surviveth remaines Auditor yet had no voice in Court untill the King add another to him 6. The grant to P. is void 1. Because in reversion 2. Because it reciteth a void grant to I. C. and I. T. as good and so the K. is deceived in his grant Sir John Heydons Case 10. Jacobi fol. 5. SIr J. H. brings trespasse against F. C. T. C. I. C. F. C. appeareth against whom the Plaintiffe declareth with Simul cum c. who pleads Non culp so doth T. C. which issues were tried severally and the issue betweene the Plaintiffe and F. C. was first tried and damages assessed to 200. l. and the other against T. C. 50. l. I. C. appeares and confesseth the Action a Writ of inquiry of damages is awarded but none issued judgement for the Plaintiffe and affirmed in Error 1. Resolved in trespasse against diverse who plead Non cul or severall Pleas which are found in all for the Plaintiffe damages shall not be assessed severally although one did more wrong then another because the trespasse is intire and the Act of one is the Act of all but if they be found guilty at severall times they may and if the Plaintiffe confesse the trespasse to be at severall times the Writ shall abate 2. If two trespassors pleade severally both shall be bound with the damages taxed by the first Jury and the other shall have an attaint although he be a Stranger to the issue because he is privy to the charge if one of them after appearance make default a Writ of inquiry shall be awarded to save a discontinuance but none shall issue because he shall be contributory to the damages taxed by the Jury who tryed the other issue and the other shall not be charged in damages assessed upon a Writ whereupon he can have no attaint but if the other issue be found against the Plaintiffe then it shall issue 3. Although there was a discontinuance against I. C. because in the common place where the Action was brought there is no continuance after a Writ of inquiry otherwise it is in the Kings Bench yet it is aided by the Statute of 32. H. 8. c. 30. 4. If two Juries give a Verdict at one time the Plaintiffe shall have judgement De melioribus damnis if he will but fiat nisi unica executio in trespasse against diverse who plead severall pleas triable by the same Jury if the Jury sever the damages all is vitious Priddle and Nappers Case 10. Jacobi fol. 8. THe Plaintiffe in a prohibition declareth that the Prior of M. was seised of 22. acres and of a rectory time out of mind c. untill the dissolution c. and so for all that time held them discharged of Tithes and conveys the said 22. acres from the King to himselfe and that the Defendant Proprietarius rectoriae praedict sued the Plaintiffe for Tithes the Defendant traverseth the prescription of discharge the Jury found that the Prior time out of c. was seised of the said 22. acres and of the advowson of the Rectory and did appropriate it by License 20. H. 8. the Incumbent then being living who dyeth and that the Prior held it united to the dissolution judgement for the Plaintiffe 1. Resolved although that every Church parochiall is supposed to be presentative yet the Plaintiffe may plead that the Prior c. time out of c. were Rectors of it for this amounts to so much that it was impropriated but he needs not shew how because before time of memory but the conclusion of the prescription of unity Viz. Ratione cujus he was discharged of tithes was not good for Land is not discharged of Tithes by unity
Indictments The Statute of 3. Jacobi inflicteth Imprisonment upon a feme Covert yet it taketh not away the forfeiture before where a new person is designed by a new Statute this taketh away the ancient Statute if they cannot stand together and although there are exclusive words concerning Courts yet the Court of K. Bench is not excluded because it is Coram Rege 6. A Recusant may pleade Auterfoits convict or other collaterall barre as pardon submission c. out of the Indictment for 3. Jacobi c. 4. extends onely to defects within the Indictment or other proceedings and the informer cannot charge any who is convicted before at the suite of the Queene upon 23. or 35. Eliz. or 3. Jacobi and upon 23. the Informer must sue within a yeare and a day Nota if after a popular action comenced the K. Attorney will not prosecute the Informer may for his part and condemnation or acquittall at his suite is a barre against the K. and all others yet the K. may pardon it before an Action commenced and if the informer die the Attorney may prosecute the suite and the Information shall serve for the King The Case of the Maisters and Fellowes of Magdalen Colledge in Cambridge 13. Jacobi fol. 66. DOctor K. Master of M. Colledge and the Fellows 17. Eliz. grant to the Queene reserving rent upon condition to grant over which is done accordingly the Jury find 13. Eliz. of Deanes and Chapters and 18. Eliz of Confirmations a fine with Proclamations is levyed and five yeares passe Doctor K. dyeth the successor accepts the rent and within five yeares after his Election enters and he and the Fellowes demise to the Defendant And judgement given for the Defendant 1. Resolved the Master and Fellowes are restrained by the Statute of 13. Eliz. to grant to the Queen for the Q. is a Parson within the letter of the Statute and if he should be exempted this should be by construction of Law which cannot be 1. Because a generall Statute for maintainance of Religion and good literature and releife of the poore binds the K. although he be not named and it appeareth by the Statute of 1. Eliz. that the K. is included within the words Person or Persons for there he is exempted 2. Because the Statute is made to suppresse a tort therefore the Statute of Donis binds him 3. A Statute made to performe the intent of the Donor binds the K. without being named as the Statute of Donis 4. The Master and Fellowes are disabled to grant therefore the K. cannot purchase of them 5. The intent is to be observed which was to convey by the Queene to a Subject and so to make her an instrument of wrong as one who holdeth of the Bishop grants to the Queene to regrant to a Corporation by Covin to take away the Seigniory of the Bishop by extinguishment and to make an evasion out of the Statute of Mortmaine this Patent shall be repealed Jure regio so here and this Act extends to a Corporation not incorporate by such names as are in the Statute 2. The Statute of 18. Eliz. c. 2. doth not confirme this grant for it is out of the words of the Statutes because it is not made upon consideration and here the reversion of the rent is not considered because the Queene was to grant it before the rent be due 2. grants to the E. may be void or voidable 1. In respect of the Grantor as if an infant grant unto him 2. In respect of the thing granted as if a Foundership be granted 3. In respect of the estate as taile 4. In respect of the grant if it agree not with the rules of Law 5. In respect of omission of any circumstance as Inrollment this Statute aideth not grants of the first sort for it doth not inable persons disabled by the Law to grant as here nor of the second sort but confirmeth grants of Tenant in taile because he was able to grant but aides not grants of the fourth sort For Quae malo sunt inchoata principio vix est c. but it aideth grants of the fifth sort 3. At the time of the said Statute this grant needed no confirmation because Doctor K. the Master was living 3. The fine and Non-claime doth not barre them 1. Because although it was not a conveyance made by them yet it was suffered by them within the words of the Statute 2. Doctor K. nor any in his time cannot make his claime and claime was made within 5. yeares after his death 4. Acceptance of the rent doth not barre them because it is a body agregate of many and acceptance by the Master sole doth not barre all and the rather being without deed And judgement given Quod querens nil caperet per billam Lewis Bowles Case 13. Jacobi fol. 79. in Trover and Conversion T.B. Covenants to stand seised to the use of himselfe and his Wife for life without impeachment of wast the remainder to their first second and third Sonne successively in taile the remainder to the heires of their two bodies the remainder over they have issue I. T. B. dyes the issue dyes the Winde bloweth downe a Barne parcell of c. and the Timber in the Count mentioned was parcell of that Barne the Feme carryeth the Timber out of the Mannor he in remainder assignes by fine to the Plaintiffe the Feme dyeth the Plaintiffe brings an Action of trover and conversion against the Executors of the Feme and judgement given against the Plaintiffe 1. Resolved untill the birth of the issue T. B. and his Wife have an estate taile executed but after this it is divided and they have for life the remainder to the issue in taile 2. Tenant in taile after possibility had a greater estate as to the quallity then Tenant for life Therefore 1. He shall not be punished for wast 2. He shall not be compelled to attorne 3. He shall not have aide 4. Upon his alienation a Consimili casu lyeth not 5. After his death intrusion lyeth not 6. He may joine the mise upon the meere right 7. He shall not be named in an Action for or against him Tenant for life but not as to the quantity therefore his feoffement is a forfeiture resceit lyeth upon his default and exchange by him and Tenant for life is good 3. The Feme is not Tenant in taile after possibility c. for this must be a remainder of an estate taile by act of God and not by limitation of the party and although she be Tenant in taile after possibility of the remainder this doth not extinguish the estate for life because it is not a greater estate 4. She shall have the priviledges of Tenant in taile after possibility for the inheritance which was in her and because she is Tenant in taile after possibility of the remainder although she cannot claime it in possession 5. If Tenant for life or yeares cut Trees or prostrate Houses the
manner of inheritances grantable in him Page 298 VVhen the Kings Charter shall be taken to two intents good how it shall be expounded ib. A Retraxit must be in proper person and where one may appeare by Attorney Page 299 No writ of Errour lyeth after disclaimer it doth after Retraxit ib. The copiholder commeth in by custome paramount Page 300 Where seisin of a rent needeth not to be alleadged within forty yeares ib. If the Jury try an Issue they shall not try it again by new nisi prius Page 301 Where de Injuria sua propria is a good plea and where not Page 301 302 Who may certifie excommunication and when it rightly done ib. VVhen a power to make leases for 21. yeares or 3. lives rendring the ancient rent is well pursued Page 303 Baron and Feme tenants in speciall taile she is within 32. H. 8. c. 28. Page 304 To what things a condition of accruer may be annexed Page 305 Foure things requisite to an accruer ib. By purchase of part of the land in which c. common appurtenant destroyed Page 306 An authority is countermandable but then the bond is forfeited Page 307 A devise of rent out of all the Capite land is good out of 2. parts ib. VVhere one formedome lyeth upon two distinct gifts Page 308 In actions reall founded upon tort one writ lyeth upon severall Titles ib. In personall actions one may comprehend severall torts ib. The demaundant must make himselfe heire to the party last seized Page 309 A disturbance by parol is no breach of a condition Page 310 VVhere the Plaintiffe shall have judgement although his title destroyed ib. VVhat words with consideration amount to a bargaine and sale ib. An Inrollment not necessary where a chattell only passeth Page 311 VVhere a will inureth by way of executory devise ib. A man may devise an estate which he cannot doe by act executed ib. What shall be said a good awarde Page 312 Where the heire of a copy-holder beyond the seas shall be barred c. ib. Mulier prisne over the seas barred by the death of bastard eigne Page 313 What manner of services multiplyed and what extinct ib. Herriot custome by purchase of part is not extinct Page 314 What power the Censors of Physicians Colledge have ib. Where a count may be made good by the barre and that by Replication Page 316 Many things good by custome which cannot be by Charter ib. The improvement shall be employed to the former charitable uses Page 317 Nothing accompted administred but the money paid by Composition Page 318 Where the plaintiffe shall have judgement the Replication being evill ib. Fully administred pleaded the Jury find assetâ—s for part what judgement ib. The force of a Repeale and where the ordinary may commit administration Page 319 A difference where obligor is made administrator and where executor ib. A commoner in a forrest where he may enclose within the stat of 22. E. 4. c. 7. ib. If A. be in execution upon an erroneous judgement and escape and the judgement is reversed the action against the Sheriffe is gone Page 320 But if judgement and execution be against the Sheriffe before that it shall stand good against him ib. Tenant for yeares grants the next avoidance and surrenders how it worketh Page 321 Where a man abusing his License hee shall be Trespasser ab initio ib. Tender of sufficient amends for damage feasant when good Page 322 What is barred by a Release of diâ—…ctions Quarrells Suites c. ib. What Errors in a Record are amendable much good matter Page 324 325 See there ten Misprisions not yet remedied Page 326 Cases in the Court of Wards Where Collusion may be averred to defraud the King of Wardship ib. The King shall have no wardship where there is no heire Page 327 Where a Patent shall he good Quacunque via data ib. If the first Melius inquirendum be good no other shall issue Page 328 To what severall times an Office shall have relation ib. A sale of Chattells after judgement Bona is good not after Execution Page 329 A Bargaine and Sale by the heire after livery tendered is good ib. The Heire Knighted in the Life of the Father who dyeth the Heire tenders livery the mean rates are saved ib. Where the King shall have his third part out of the whole Page 330 THE NINTH BOOKE WHere a subsequent Indenture may direct uses in a precedent recovery Page 331 Where an averrment of other uses may be made ib. A common essoyne is allowable in Dower Page 332 In a Writ of Dower who may plead deteinment of Chartars Page 333 The Beasts of the Termor are distreined and an avowry made upon a meere Stranger what remedy for the Termor Page 334 No distresse for damage feasant if the Cattell be chased out ib. What ancient Franchises ought to have allowance Page 335 What priviledges are extinct if they returne to the Crowne ib. Where the Tenure and where the seisin is traversable Page 336 A difference when one Executor refuseth and when all doe Page 337 They can bring no actions before probate Page 338 What power the Ordinary hath over the goods of the intestate ib. See 21. H. 8. c. 5. touching granting administrations Page 339 The grant of the Stewardship of the Mannor of D. good without naming the County where it lyeth ib. Where such a Grantee may make a Deputy without expresse power Page 339 Where Non user is a forfeiture of an Office Page 340 What Writs Vi armis are good Causa causans and Causa causata ib. What words amount to a Release Page 341 If it appeare that the Nusans is to the damage of the Plaintiffe he needs not shew it he may abate the Nusans if he will ib. Westm 2. c. 24. extends not to the Alienee of the alienee ib. How conspirators may be punished before acquitall Page 342 Conspiracies punishable before Execution must have foure incidents ib. What Act shall be said to be a Nusans as a Lime-pit c. Page 343 What things requisite to convict a man of Libelling ib. A man needs not to shew that which lyeth not properly in his notice Page 344 Much noteable matter touching Indictments and a Serjeants duty Page 344 c. Commissioners to examine witnesses are not bound strictly to the Letter Page 346 What the duty of a Commissioner is and how he must demeane himselfe Page 347 Whither a Feme Covert be within the Sâ—… of Westm 2. c. 35. ib. What Marriage is within that Statute Page 348 A surrender made by a Copy-holder by Letter of Attorney is good ib. What authorities may be Executed by Attorney ib. VVhere the Act must be done in the name of the authorizor Page 349 VVhere an accord is a good plea and what is requisite thereunto Page 349 350 VVhat Act shall be adjudged murder Ex eventu Page 351 VVhere an Attornement shall bind an Infant ib. An action of the Case
lyeth against Executors for the Testators Debt Page 352 VVhere a man may wage his Law Page 353 VVhat words shall be adjudged a good consideration Page 354 VVhat Offices grantable for yeares and by what Acts Offices may be forfeited and where the King may seise without Scire facias Page 355 356 Copy-hold estates are within 4. H. 7. of fines Page 356 Disseissor of Copy-hold levyes a fine what time the Lord hath ib. VVho may enter without command to avoid a fine Page 356 357 A plea by an administratrix of fully administred must be certeine Page 358 VVhere an Allegation generally of Covin is good ib. A commoner Copy-holder may have an Action of the Case for the losse of his Common so he may distreine damage feasant ib. A Baron of Scotland shall be tried by Commons of England Page 359 See the diverse Resolutions of difficulties arising upon the Indictment of the Lord Sanchar and others Page 359 360 Cases in the Court of Wards The Kings release doth not extinguish a service inseparable Page 361 VVhen the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be ib. VVhere the particular estate is out of 32. H. 8. no wardship accrueth to the King by advancement of him in remainder otherwise of a reversion for he is Tenant Page 362 VVhat words are sufficient to create an estate taile Page 363 The Kings possibility shall not devest a VVardship vested Page 364 The reviving of an ancient Tenure preferred before the reservation of a new ib. By death of the father before livery sued after tender The King looseth primer seisin but no meane rates Page 365 Of a fruitlesse reversion a wardship but not primer seisin ib. Where the saving in 32. H. 8. giveth ward and primer seisin Page 366 A Mensnalty cannot be suspended in part and in esse for part by the act of the party but it may by Act of Law or a third person ib. There are foure manner of Avowries Page 367 What Act is a good delivery of a Deed or of seisin of Land ib. One may have an estate taile which cannot discend Page 368 Three manner of Confirmations Page 369 THE TENTH BOOKE WHat things requisite to the Founding of an Hospitall see at large Page 371 An estate taile barred by recovery in value without recompence Page 374 A Feme Covert shall not loose her Land by any conclusion without examination upon a Writ in Court ib. Tenant for life suffers a recovery and he in remainder in taile is vouched the reversion in fee is barred Page 375 The devise of a terme to one for life the remainder to another for life is good as an Executory devise Page 376 The first Devisee cannot barre him who hath the Executory devise ib. Assent to the first devise is an assent for all ib. Such an executory devise not grantable over ib. but it may be extinguished by release to the first Devisee ib. Qui destruit medium destruit finem Page 377 If a Recusant grant the next avoidance before conviction it is void by 3. Jacobi for he is disabled from the beginning of the Session c. Page 378 Covin shall not be presumed if it be not averred ib. A private Act shall be taken as it is Pleaded ib. What grants of Offices by a Bishop are void by 1. Eliz. except for twenty one yeares or three lives and what Circumstances requisite Page 380 Praerogativa Regis c. 15. excepts Knights fees and advowsons and indowments all other appendants now passe by grants and so doe they in Case of Restitution Page 381 A Corporation aggregate may make a surrender in Law not in Deed Page 382 The Jurisdiction of the Marshalsea and the reasons thereof Page 382 383 About 4. E. 3. the Court of Kings Bench became resident Page 383 A good diversity where the Court hath Jurisdiction but proceed In verso ordine and where they have not Jurisdiction there all they doe is Coram non judice and void Page 383 384 Diverse abstruse points resolved some at the common Law and severall upon the Statutes of 32. 34 H. 8. of wills Page 385 386 VVhat Colour is and where it must be given Page 388 VVhere a privy interest although he claime but part must shew the first Deed except he claim meerly by Law Page 388 389 VVhere a man may have a freehold discendible Page 390 A warranty barres no estate which is not displaced at the time of c. ib. A warranty cannot inlarge an estate where it may be given in evidence Page 391 VVhat Obligations made to Sheriffes are within the Statute of 23. H. 6. Page 391 Forma verbalis Forma legalis or Essentialis Page 392 393 The time of granting a Tales and when it is well granted Page 396 397 The proper place of a reservation is after limitation of the estate Page 397 Increase of services is betweene very Lord and very Tenant Page 398 VVhen Lands shall be said to be concealed from the K. 398 399 A man shall have costs in all cases where hee recover dammages Page 400 Where a man shall recover damages and costs also ib. Where to the writ of Inquiry and to the verdict and judgement ib. Where insufficient verdict may be supplyed by a writ of Inquiry and where it cannot a good difference Page 401 A difference between auncient Corporations and new in matter of Misnosmer Apices Juris non sunt Jura Page 401 402 Which is the legall time of payment of Rent Page 402 If payment be in the morning and the lessor dye at noone this is satisfactory against the heire but not against the King ib. Where the lessee shall hold rent free for a quarter Page 402 Where Damages may be assessed intirely and where not Page 403 404 What words passe under the name of Latine Page 404 Where by death of one of the Plaintiffes after summons and severance the writ abateth divers good diversities Page 404 405 A Qu. impedit praesentare ad medietatem Ecclesiae where good ib. Cases upon the Commissions of Sewers Where the Commissioners may subvert a Cawsey and where not Page 406 If a wall be subverted by a sodaine inundation the Commissioners may taxe all equally who have damage thereby ib. Otherwise if it come by neglect of him who ought to doe it ib. If the Commissioners have power to make a new River and a generall taxe so much upon every Towne for doing thereof Page 407 What is a good revocation of old uses and limitation of new Page 409 THE ELEVENTH BOOK A Difference between a disability absolute and temporary or personall Page 411 The grant of the office of Auditor to two is good Page 412 What offices grantable in reversion ib. Where the Jurors may assesse damages severally Page 413 Where one shall have an attaint that is a stranger to the issue ib. Where a writ of Enquiry shall issue Page 414 The plaintiffe shall have judgement de melioribus damnis ib. The conclusion of a plea is not traversable Page 415 In every issue there must be an affirmative and a negative ib. The Impropriation sufficient in the life of the Incumbent ib. VVhere the witnesses are not punishable for perjury Page 416 Perpetuall unity a discharge and what requisite thereunto ib. VVhat prescription for tithes of houses is good ib. A customary Mannor may be holden of another Mannor Page 417 VVhat variance in the name of a Corporation doth vitiate Page 418 VVhat devise of socage by tenant is Capite is good Page 419 An Ejectione firmae of tithes without shewing their kinds not good ib. If a deed be rased the obligor may plead Non est factum Page 420 A diversity where it is rased by the obligee himselfe and where by another ib. VVhere Clergy allowable at the Common law and where at this day copious and excellent matter Page 421 VVhere an Errour lyeth not before the finall Judgement Page 423 A fine by the Stewart of a Mannor where it is well assessed Page 425 VVhere the Lord may destreine for it without prescription ib. VVhere an action shall abate in part and where for the whole Page 426 Notwithstanding the exception trees remaine parcell of the Inheritance ib. A thing in possession cannot be parcell of a reversion upon an estate for life Page 427 None may be prohibited by the common law to use any trade Page 428 An ordinance by a Corporation against law is void ib. How an Ejectione firmae must be brought Page 429 Although the dammages are not well assessed yet the Plaintiffe may have judgement ib. Much variety of Learning touching Recusancy and upon the severall Statutes concerning them Page 429 430 Master and Fellowes of a Colledge restrained to grant by 13. Eliz. what statutes doe binde the King Page 432 Some grants to the King void and some voidable Page 433 VVhere acceptance of Rent doth barre and where not Page 434 Tenant in taile after possibility of c. hath a greater estate in quality then tenant for life not in quantity Page 434 435 VVhat priviledges belong to his estate Page 435 A lease without impeachment of wast what passeth thereby ib. A monopoly is against law and hath three incidents against the weale publique Page 436 What fees belong to the office of Master of the Ordnance Page 427 In the Kings Case the law maketh a privity to be accomptable ib. For what causes a Citizen may be disfranchised Page 438 The 3. Book fol. 9. Dowties Case A Difference where the first certainty is false in a grant and where the first is true and the second false Page 439 Where lands are in the Q. by 33. H. 8. c. 20. without seisure ib. Fol. 11. Sir William Harberts Case What remedy for debts at the common law and when the body and lands became liable thereunto Page 440 44â— In all actions vi et armis the body was subject unto Imprisonment and so for debt at the Kings suite Page 441 The heirs of the conâ—isâ—ser shall not have contribution against a purchasor ib. Changes reall doe not survive but personall doe Page 442 Three Errours there moved but not resolved ib. FINIS