neither at the time of the Will nor at the time of her death she had nothing of the said Manor of Tremington but the said Rent of one hundred thirty and six pounds Also it may be taken that she who devised was ignorant of the Law and conceived that it was a Manor when she had Rents and Services out thereof notwithstanding that those who are learned in the Law know that a Manor could not pass without there was two Suitors at the least 21 R. 2. Devise 27. Lands are devised to one for life the remainder Ecclesiae Sancti Andreae in Holborn there it is holden in an Ex gravi Querela that the Parson should recover for otherwise the Devise should be void if the Parson should not have the Lands and in Wills shall subserve and give place to the intent of the Party and therefore if a man deviseth that his Lands shall be sold for the payment of his debts his Executors shall sell them and to that intent the naming of them Executors is sufficient Plow Com. 523. in Weldens Case it is vouched to be adjudged that if one after the Statute of 27 H. 8. deviseth that his Feoffees shall be seized to the use of A. in Fee that it was a good Devise of the Lands to A. and yet then he had not nor could have any Feoffees c. But the Party was ignorant of the Statute and his intent to pass the Land was apparent in that Case the words were as much impertinent to the matter as in our Case for there he had not any Feoffees as here she hath not any Manor Br. recites That in 38 H. 8. it was holden by Baldwin Shelly and Morgan that if a man who had Feoffees to his use would after the Statute of 27 H. 8. that his Feoffees should make an Estate to J. S. that the Land should pass to J. S. 26 H. 8. Feoffments Faits 12. Land cannot pass by the Deed of an House for it cannot be parcel of an House but an Acre of Land may be given by the name of a Carve and a Carve of Land by the name of a Manor and yet a Carve can be no more a Manor than this rent yea Rents and Services more resemble a Manor than a Carve of Land. It cannot be intended that her Will was here to pass the Manor it self which was not in her but in another Also she by four years before had the rent and therefore it shall be intended that it was her meaning to pass the same which she her self received and no other thing and although in the Devise the rent be specially named and the Manor also yet the same shall not alter the Case for if a man grant the Reversion upon an Estate for life and by the said Deed grants the Land and the Tenant attorns and the Grantee deviseth all his Land the Reversion shall pass without all question If a man grant the Advowson of D. and in the same Deed the Church and Rectory of D. and the Grantee deviseth the Rectory of D. the Advowson shall pass In Adams Case Plow Com. 195. a man leaseth his Capital Messuage rendring rent there the question is If the Reversion or Rent shall pass It was adjudged That all which he had passed As to that that it cannot be levied out of the Rent for that no place is therein of Distress I say that she did not know whether a lesser rent might be paid out of a greater rent and 1 H 4. Multure was granted reserving rent and the Grant was good The words of the Will are All which Manors Lands and Tenements c. she devised to the Lord Mountjoy and these words expound her meaning for although the word Rent be not within the word Manor yet the words Lands and Tenements do comprehend it and words subsequent in Wills may express the Premisses As 16 Eliz. Dyer 333. Chapman seized in Fee of two Houses having three Brothers devised the House in which A. inhabited to his three Brethren and A. to dwell there and they not to raise the rent and devised the House in which B. his Brother dwelt to him and that he pay to C. his Brother 3 l. for to find him at School and otherwise to remain to the House Proviso that the Houses shall not be sold but shall go to the next of the Name and Blood which are Male and dyed B. his brother dyed without Issue the eldest of the two middle brothers entred and had Issue a Son and dyed It was a Question If the Son or the middle brother should have the House And it was holden that the Son of the eldest should have it in Tail which Exposition was by reason of the words in the Proviso that it should not be Sold and that it should go to the Heirs Males Shuttleworth The rent shall not pass by the Devise for the construction of a Will ought to be according to the words or according to the intent collected out of the words and not by a thing out of the Will for then a stranger shall be the maker of the Will of another And 19 H. 8. if a Will be doubtful it ought to be expounded for the Heir at the Common Law. And if the rent ought to pass it ought to have apt words and not the name of a Manor And thereupon he put the Case that where one deviseth certain Lands to one and afterwards his Goods Leases and other things to another All his Goods and Terms shall pass but not his Lands for that there wanteth apt words to pass them for the word other things shall not pass them and this set order ought to be observed for the avoiding of confusion And the Rent and Services shall not pass for the two parts admitting the words sufficient for they cannot be divided But Periam said That the rent might be divided Anderson said That it should be but a Rent-seck Periam said it was a Rent distrainable of Common Right but Anderson doubted of it but they all agreed that it might be divided but there should not be two Tenures Fenner The Rent should pass by the Devise of the Manor for there is do difference betwixt a Manor and a Seigniory in gross amongst Lay-men and then their intent shall be taken although it was not written by apt words for in Grants a Reversion shall be taken for a Remainder and à Fortiori a Devise And 7 E. 3. a Manor shall pass by the name of a Knights Fee and 19 H. 8. a Wood shall pass by the name of Land and 38 E. 3. by grant of totam terram which A. held in dower the Reversion shall pass Afterwards in Mich. Term the Plaintiff discontinued his Ation And Periam told me I being at his House that the Opinion of the Court was against the Plaintiff and if it had not been discontinued they would have given Iudgment accordingly Now this was the intent of the Lord Mountjoy The
any thing which sounds to the disinheriting of him in the reversion although in truth the same doth not touch the Inheritance yet it is a forfeiture Vid. 39 E. 3. 16. If Tenant for life pleads any thing against the right of him in the reversion it is a forfeiture and by Finchden and Belknap he cannot plead in the right 5 Ass 3. Tenant for life is impleaded in a Praecipe by a stranger and confesseth the Action upon which the Demandant hath Iudgment the Lessor enters against whom the Demandant sueth Execution The Lessor brought an Assise and had Iudgment to recover for it is a forfeiture because the Tenant for life hath admitted the reversion in another because it is an alienation to the disinheriting of the Plaintiff and of the Lessor 12 E. 3. Fitz Resceipt 14. where Tenant for life pleaded in chief or cannot deny or gainsay the Action of the Demandant or makes default by Covin he shall forfeit his Estate But if a rent be demanded against Tenant for life and he rendreth the same it is no forfeiture 12 Ass 31. Tenant for life is impleaded by Covin between him and the Demandant and pleads in chief without aid prayer upon which Iudgment is given he in the reversion enters in a Juris utrum against Tenant for life who pleads feintly traversing the point of the Action he in the reversion shall not be received for in as much as the Tenant hath traversed the Action he is not within the Statute of West 2. 3 5. Default Reddition but he in the Reversion may enter by the Common Law 22 E. 3. 2. In Scire facias to execute a Fine against Tenant for life who pleaded to the Inquest whereas in truth the Land in demand was not comprised within the Fine Iudgment is given for the Demandant in the Scire facias he in the reversion may enter In our principal case here is apparent and manifest Covin for the Tenant for life voucheth without cause and this Recovery is by assent and is to the use of the Vendee who is Tenant for the life of another and therefore by the Common Law he in the Remainder may enter before Execution sued And it is well known that these common Recoveries are used for to dock Remainders in Tail and that was the scope of this Recovery And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat who voucheth a stranger the Demandant counterpleads the Voucher and it is found for him he in the Reversion hath no remedy but by a Writ of Right and if the Vouchee entreth and loseth by Action tryed or default ut supra that Book is to be intended of a Recovery executed for there in such case he in the Reversion hath not an Entry but is put to his Writ of Entry by the Common Law Vide Br. Title Forfeiture 87. 24 H. 8. Tenant for life is impleaded and prays in the Aid of a stranger he in the Reversion may enter but if he doth not enter until the other hath recovered then he cannot enter but is put to his Writ of Entry Ad terminum qui praeteriit vel de ingressu ad Communem Legem and therein he shall falsifie the Recovery and there by Brook Voucher of a stranger is not cause of Forfeiture for it doth not disaffirm the Reversion in the Lessor And he vouched 24 E. 3. 68. where Tenant for life pleaded in the right with aid prayer And so he argued that before Execution he in the Remainder might enter but after Execution is put to his Action But in our Case although that Execution be good yet he in the Remainder may enter for it is found by Verdict that at the time of the Recovery he was within age and that when he dyed that he in the next Remainder was within age and then no Entry shall be imputed and then he shall not be driven to his Action As if Tenant by the Courtesie makes a Feoffment with warranty and dyeth and the same descends to his Heir within age yet he shall enter although he hath not avoided the warranty in the life of his Ancestors Also he said that the Statute of 32 H. 8. extended to this Case for Sir William Pelham the Vendee was but Tenant for life and although that he be but Tenant for the life of another yet he is Tenant for life as fully as if he were Tenant for his own life or otherwise Tenant for life or lives Note this the words of the Statute As upon the Statute of 20 E. 1. which gives Resceipt de defensione juris the words are Cum quis aliquod breve Domini Regis impetret versus Tenentem per Legem Angliae vel feod taliat ' vel sub Nomine Dotis vel alio modo ad terminum vitae upon these words it is holden 11 H. 4. That where Land was given to one and his heirs for the life of another that upon such an Estate he in the reversion should be received by reason of these words vel alio modo ad terminum vitae c. And although he who enters at the time of the recovery was not next in remainder to the particular Estate yet he is within the Statute of 32 H. 8. For he was in remainder at the time of the recovery and at the time of the entry he in the immediate remainder was dead and then he the next in remainder Vide 15 E. 4. 9. by Litt. If I grant my Services to one for life and he in a Praecipe brought against him pleads in the right or grants to another the said Services in Fee it is not a Forfeiture for it is no Discontinuance It will be objected That the words of the Statute of 32 H. 8. are That such recoveries shall be utterly void and if so then he in the reversion cannot be damnified and then no cause of Forfeiture So that it may be easily answered That where Tenant for life doth any thing which sounds to the disinheriting of him in the reversion by matter of record although the same doth not devest or otherwise prejudice the Inheritance yet it is a Forfeiture Cook to the contrary Here in our Case is not any Covin in Sir William Pelham the Bargainee he was deceived by the Bargainor for he did not know but that the Bargainor was seized in tail according to the Covenant in the Indenture by which the Bargainor covenanted that he was seized in tail at the time of the Bargain and also to do any other act for assurance of the Estate of the Bargainee and it was lawful for him to Vouch his Bargainor and although he voucheth a stranger it is not a Forfeiture 39 E. 3. 16. Aid prayer of a stranger is a Forfeiture and the reason of that is because he acknowledgeth the reversion to be in a stranger and that is the cause of Forfeiture Vide Book of Entries 254. Where upon
he is not to have Damages because the Waste was not to his disinheresin and the Land he shall not recover against the Defendant for the Term is not determined and such was the Opinion of the Court. As to the matter in â—aw Shuttleworth said That the Action of Waste ought to be brought against the Lessee himself and not against the Assignee for when he grants over his Term excepting the Trees it is a good Exception for when the Land upon which the Trees grow is leased to another the Trees pass by the Lease as well as the Land and the property of them is in the Lessee during the Term by which when he grants his Land he may well except them as the first Lessor might have done and if the Lessee for years cutteth down the Trees the Lessor cannot take them for that he hath other sufficient remedy scil an Action of Waste Fenner and Walmsley contrary And they conceived that the Lessee had but a special Property in the Trees scil for Fire-bote Plough bote House-bote c. But if he demiseth the Land or granteth his Interest in it he cannot except the Trees nor his special Property in them no more than he who hath Common appendant may grant the Land excepting the Common And in such case the general Property in the Trees remains in the Lessor as parcel of his Inheritance And this appeareth by many cases 27 H. 8. 13. Lessee for life and he in the remainder joyn in a lease for life the Lessee commits Waste the Tenant for life and he in the remainder joyn in an Action of Waste the Tenant for life shall recover the place wasted and he in the reversion all the damages Vide 2 H. 7. 10 H. 7. cited before That the Lessor may licence the Lessee to cut the Trees which proves that the Property is in him And Vide 40 Ass 22. the Lessor shall have the Windfalls And as to that which hath been said That by the Exception of the Trees the Soil it self is also excepted that is true as to the Trees for nourishment and not otherwise for if the Lessor cutteth down the Trees or roots them up he shall not after meddle with the Land where c. but the Soil shall be entirely to the Lessee The Lessor during the Term may grant the Trees so cannot the Lessee therefore the greater and better Property in the Trees is in the Lessor and not in the Lessee and the Trees proprie loquendo are not parcel of the thing demised If this Exception of the Trees or Woods should hold place Inconvenience would follow for as it is holden in 15 H. 7. 11. If the Termor of Wood commits Waste in one corner of the Wood he should not lose all the Wood but that place only But if in the said Wood there are divers Plats of Land in divers places of the Wood if the Termor commits Waste in that Wood he shall lose all the said Plats although he hath not done waste in them for they are parcel of the Wood. Vide Temps E. 1. Fitz. Waste 127. and Vide ibidem Waste 112. 8 E. 2. Waste done in parcel of an House the whole House shall be recovered Vide also 30 E. 3. Fitz. Amendment 67. and 4 E. 3. Waste 10. Now if that be Law and the Exception be good how shall the place wasted be recovered here and against whom It seemed to the Lord Anderson That the Exception was void and that the Action was brought against the Assignee and he said it was a knavish and foolish Demise and if it should be effectual in Law some Mischiefs would follow which he would not remember Windham was of the same Opinion and that the Lessee could not assign his Estate with such Exception for he hath but a special Interest in the Trees scil for Fire-bote Plough-bote c. which should go with the Land. Periam conceived That as to such special Property that none could have it but he who hath the Land and therefore the Exception is void but as to the Fruit-trees such an Exception might be good and although that the Trees are not expresly demised yet quodam modo and after a sort they may be said demised as annexed to the Land and if waste be brought against him who made the Exception scil the Lessee he cannot say they were not let to him and therefore he doubted of the Exception And Rhodes doubted also of the Exception and Anderson said that he was clear of opinion that the Lessor should have the Windfalls and afterwards the Case was adjorned to be further argued c. Temps Roign Eliz. CCLXX. Audleys Case Uses THe Lord Audley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerset and afterwards by Indenture reciting the said Feoffment and the date of it and also that it was to the intent that his Feoffees should perform his Will as followeth in effect viz My Will is that my said Feoffees shall stand seized to the use that the said Hoddy shall receive of the said Lands â—00 l which he had lent to the said Lord Audley and also to stand seized to pay all his Debts upon Bills signed with his hand and after â—he Debts paid that the Feoffees shall make an Estate of the said Lands to him the said Lord Audley and Joan his wife and to the heirs of their Bodies c. with divers Remainders over The said Lord Audley had Issue by the said Joan and also having Issue by a former wife a daughter the Feoffees never made any Estate to the said Lord and his wife and by the opinion of divers Iustices and Sages of the Law upon this matter no use was changed for it is not a last Will but an Intent and although that the Feoffees shall be seized to the use of the Feoffor and his Heirs because no consideration was wherefore they should be seized to their own uses yet the same could not make a new use to the said Lord and his wife in tail without conveying an Estate c. for the wife is a stranger to the Land and the same cannot be a Will or Testament for the Estate mentioned in the said writing ought to be made to the said Lord and his wife who could not take by his own Will and this matter was depending in the Chancery And the advise of the Iustices being there required they delivered their Opinions That by that writing no use was changed nor any use vested in the said Lord and his wife and a Decree was made accordingly until proof was made that such an Estate was made c. Trin. 29 Eliz. In the Common Pleas. CCLXXI. Walgrave and Somersets Case IN Trespass by Walgrave against Somerset the Case was That tenant at will cut down Trees and the Lessor brought Trespass vi armis And the Court was clear of opinion that the Action was well maintainable modo forma and Iudgment
infra Messuagium praedict ' modo forma and thereupon it was demurred in Law for it was said That the Defendant ought to have said Non usurpavit Libertates praedictas nec eorum aliquam for he ought to answer singulum and also he ought to have pleaded as well to the Manor as to the Messuage for if the Defendant hath holden Court within any place of the Manor it is sufficient And the Case 33 H. 8. Br. Travers sans ceo 367. was cited and Information was in the Exchequer That the Defendant had bought Wools of A.B. contrary to the Statute the Defendant pleaded That he had not bought of A. B. and the Plea was not allowed for he ought to have said That he had not bought modo forma for if he had bought of A. B. or J. S. the same is not any matter nor traversable which Cook denied to be Law And he conceived also that the Information upon the Quo Warranto is not sufficient for by the same the Defendant is charged to hold a Court and it is not shewed what Court and it may be it was a Court of Pypowders Turn c. And Vide 10 E. 4. 15 16. a Quo Warranto contains two things 1 Claim 2. Vsurpation And here the Defendant hath answered but to the Vsurpation and it hath said nothing as to the Claim And it hath been holden here heretofore that he ought to make answer to both And it hath been holden in a Reading upon the Statute de Quo Warranto which is supposed to be Frowicks Reading That a Quo Warranto doth not lye of such Liberties which do not lye in Claim as Goods of Felons c. which lyeth only in point of Charter CCCXIX. Temps Roign Eliz. THe Prior of Bath leased his Manor of A. to C. for life rendring rent and afterwards the Priory was dissolved the King leased the whole Manor cum pertinenciis to Sir Walter D. Kt. Dyer The matter depends upon this point If the Demesne be severed from the Services during the life of the Lessee And he conceived That the Lord cannot hold a Court if such a power be not reserved to him upon the Lease Weston The Manor nor is in suspence during the Lease for a Reversion upon an Estate for life and Services in possession cannot be united to make a Manor but contrary if but parcel had been leased Quod Curia concessit Welch The Demesnes are severed from the Services for ever as if they had been granted in Fee but here having regard to the Lessor the Demesnes and Services are united and made one Manor but as to the Lessee and all others the Services are in gross and of that Opinion was also Dyer And he said If a Bishop leaseth his Demesnes of his Manor for life and dyeth the Reversion shall be in his Successor and was in himself for his life in the right of his Church And if Husband and Wife seized of a Manor in the right of his Wife lease the Demesnes of the said Manor for life yet he hath the Reversion in the right of his Wife and in such Case it doth remain a Manor but if the Husband sole had made the Lease he had gained the Reversion to him and so severed it from the Manor CCCXX Temps Roign Eliz. Devises A. Devised that his Wife should take the Profits of his Lands until his daughter should come to the full age of 25 years and if the daughter dyed within the age of 18 years then his wife should have the Land for her life the remainder over to J. S. The daughter became of the age of 18 years and dyed before she came of the age of 20 years and Dyer held clearly That the Remainder was gone for the daughter accomplished and survived the age of 18 years And he said that the case late depending in the Kings Bench was this The Husband devised the Profits of his Lands to his Wife for 25 years and that then his Son should have it in Tail to him and to the Heirs of his Body c. now before the 25 years expired he hath Fee and if he hath Issue then his Estate is changed into Tail But by Carus he hath both Estates scil Fee-tail and Fee-expectant CCCXXI. Temps Roign Eliz. Surrenders A Woman Tenant in Tail made a Lease not warranted by the Statute took a Husband had Issue and dyed the Husband being Tenant by the Courtesie surrendred to the Issue It was holden that he should not avoid the Lease during the life of the Tenant by the Courtesie But yet some held That the Surrender ought to be by Deed as a Lease to A. for life the Remainder to B. for life the Remainder to C. in Fee if B. surrenders to C. it must be by Deed. CCCXXII Temps Roign Eliz. THe Case was this A. leaseth Lands to B. for years Extent rendring Rent with Clause of re-entry and afterwards Debt is recovered against him It was holden That now the Moiety of the Rent and the Reversion was extendable by Elegit and upon such Extent Condition suspended the Condition is suspended during the Extent as well in the Lessor as in the Party who hath the Extent Temps Roign Eliz. CCCXXIII Mitchell and Nordens Case Procedendo upon Aid-Prayer in Dower ELizabeth ' c. Dilectis Jacobo Dyer c. Monstravit nobis Elizabeth ' Mitchell quae fuit uxor c. Quod cum ipsa prosecuta fuit coram vobis sociis vestris c. Breve nostrum de Dote unde nihil habet versus Thomam Norden c. Et praedictus Thomas venit dixit Quod vir praedictae Elizabethae was seized and leased to him for life with warranty and for that cause he vouched to warranty Tristriam ' Mitchell Filium Haeredem dict' Richardi infra aetatem existen ' in Custodia eo quod dictus Richardus die quo obiit c. Et hoc paratus est verificare Unde non intendit quod vos praefati Justiciarii nostri nobis inde inconsultis ulterius procedere velletis Et petiit auxilium de nobis habuit Et super hoc dies datus est tam praefatae Eliz. quam dict Tho. Norden à die Pasc c. Et dictum fuit praefatae Eliz. Quod sequatur penes vos quarum quidem allegatione praetextu vos in placito praedict ulterius procedere distulistis adhuc differtis in ipsius Eliz. dispendium gravamen Et super hoc eadem Eliz. venit hic coram nobis in Cancellaria nostra Et petit Breve nostrum de Procedendo inde in hac parte vobis dirigend ' Super quo quaesita fuit in eadem Curia Cancellariae nostrae à Gilberto Gerrard Attornato nostro generali qui pro nobis in hac parte sequitur si quid dicere scivit aut potuit per quod dict' Tristriamus infra aetatem in custodia nostra
shall be special and shall make special recital of the Estate And so is the Case 26 H. 8. 6. where Cestuy que use makes a lease and the Lessee commits waste there the Action was brought by the Feoffees containing the special matter and it was good although there was not any such Writ in the Register cujus haeredes de Corpore and we are not to devise a new form in such case but it is sufficient to shew the special matter to the Court. And the words of the Writ are true for they are Heirs to Sir Roger Lewknor and the Count is sufficient pursuant and agreeing to their Writ for they are Heirs although they are not special Heirs of the Body and so the Court was of Opinion that the Writ was good notwithstanding that Exception And Anderson and Periam Iustices said That the Case is not to be compared to the Case in Fitz. Nat. Brevium 57. for there he cannot shew by whose demise the Tenant holdeth if he doth not shew the special Conveyance viz that the Land was given to the Husband and Wife and to the Heirs of the Body of the Wife Nor is it like to the Case of 26 H. 8. for the same cause For always the demise of the Tenant ought to be specially shewed and certainly which it cannot be in these two Cases but by the disclosing of the title also to the reversion Another Exception was taken because that the Writ doth suppose Quod tenuerunt which as they conceived is to be meant that tenuerunt joyntly whereas in truth they were Tenants in Common Walmsley contrary because there is not any other form of Writ for there is not any Writ which doth contain two tenuerunts and the words of the Writ are true quod tenuerunt although tenuerunt in Common but although they were not true yet because there is no other form of Writ it is good enough as Littleton If a Lease be made for half a year and the Lessee doth Waste yet the Writ shall suppose Quod tenuit ad terminum annorum and the Count shall be special 40 E. 3. 41 E. 3. 18. If the Lessee doth commit Waste and granteth over his term the Writ shall be brought against the Grantor and shall suppose Quod tenet and yet in truth he doth not hold the Land and the Writ shall not contain two Tenets and such also was the Opinion of the Court. The third Exception was because that the Writ was brought by the two Coparceners and the Heir of the third Coparcener without naming of Tenant by the Courtesie And thereupon Snag cited the Case of 4 E. 3. That where a Lease is made for life the Remainder for life and the Tenant for life doth waste he in the Reversion cannot have an Action of Waste during the life of him in the Remainder So in the like case the Heir of the third Coparcener cannot have waste because there is a mean Estate for life in the Tenant by the Courtesie And to prove that the Tenant by the Courtesie ought to joyn in the Writ he cited the Case of 3 E. 3. which he had seen in the Book at large where the Reversion of a Tenant in Dower was granted to the Husband and to the Heirs of the Husband and the Tenant in Dower did waste and they did joyn in the Action of Waste and holden good And so is 17 E. 3. 37. F. N. B. 59. 22 H. 6. 25. Walmsley contrary for here in our Case there is nothing to be recovered by the Tenant by the Courtesie for he cannot recover damages because the disinherisin is not to him and the term is expired and therefore no place wasted is to be recovered and therefore it is not like to the Books which have been vouched For in all those the Tenant was in possession and the place wasted was to be recovered which ought to go to both according to their Estates in Reversion but so it is not here for in as much as the term is expired the Land is in the Tenant by Courtesie and so he hath no cause to complain And such also was the Opinion of the whole Court that the Writ was good notwithstanding the said Exception Then concerning the principal matter in Law which was whether the Writ was well brought against the second Lessee or whether it ought to have been brought against the first Lessee It was argued by Shuttleworth That it ought to have been brought against the first Lessee for when he granted over his term excepting the Trees the Exception was good ergo c. For when the Land upon which the Trees are growing is leased out to another the Trees pass with the Lease as well as the Land and the profit of them is in the Lessee during the term and therefore when he grants his term he may well except the Trees as well as the Lessor might have done And that is proved by the Statute of Marlbridge for before that Statute the Lessee was not punishable for cutting down the Trees and that Statute doth not alter the property of the Trees but only that the Lessee should render damages if he cut them down c. Also the words of the Writ of Waste proveth the same which are viz. â—n terris domibus c. sibi dimissis And the Lessee might have cut them down for Reparation and for Firewood if there were not sufficient Vnderwood which he could not have done if the Trees had not been excepted And in 23 H. 8. Br. it is holden that the excepting of the Trees is the excepting of the Soil And so is 46 E. 3. â— where one made a Lease excepting the Woods and afterwards the Lessee did cut them down and the Lessor brought an Action of Trespass Quare vi armis clausum fregâ— c. and it was good notwithstanding Exception was taken to it And it is holden 12 E. 4. 8. by Fairfax Littleton That if the Lessee cut the Trees that the Lessor cannot carry them away but he is put to his Action of Waste Fenner and Walmsley Serjeants contrary And they conceived that the Lessee hath but a special property in the Trees viz. for Fire-boot Plough-boot House-boot c. and if he pass over the Lands unto another that he cannot reserve to himself that special property in the Trees no more than he who hath Common appendant can grant the principal excepting and reserving the Common or grant the Land excepting and reserving the Common or grant the Land excepting the Foldage The grand property of the Trees doth remain in the Lessor and it is proved by 10 H. 7. 30. 27 H. 8. 13. If Tenant for life and he in the Reversion joyn in a Leafe and the Lessee doth Waste they shall joyn in an Action of Waste and the Tenant for life shall recover the Free-hold and the first Lessor the damages which proves that the property of the Trees is in him As to
one who had an Estate so determinable to make such a Lease which peradventure could not begin in his Life 2. The Letter of the Act is 21 years or under and the word under strongly expounds the meaning of the Act to be not to extend to such an Estate for hereupon the matter is a Lease for 40 years 3. Because the Land leased is the Inheritance of the Wife and it was said that in the Case of one Heydon such a private Act of Parliament was strictly construed Acts of Parliament It was enacted that all Copies for three Lives granted by the Lord Admiral of the Lands of his Wife which was Queen Katherine should be good The Admiral granted in Reversion for three Lives It was holden that the Grant was void and not warranted by the said private Act of Parliament Dyer The words are general omnes dimissiones therefore not to be restrained to special Leases Manwood A Feme covert by duress joyns in a Lease with her Husband it shall bind her The Case was adjourned LXI Mich. 19 Eliz. In the Common Pleas. THe Queen leased for years rendring 10 l. Rent the Lessee granted the Land over to A. rendring 20 l. Rent A. granted the Land over to B. who surrendred to the Queen and took a new Lease And Manwood said that the first Lessee should have an Action of Debt for the Rent of 20 l. against him Debt for Rent who was possessed of the Land and not against A. his Assignee for it is a Rent issuing out of the Land and he who hath the possession of the Land shall pay it and no other for if any part of the Land be evicted the Rent shall be apportioned and because it is meerly a Rent and ensues the privtiy real viz. the possession of the Land and not the privity personal the Person of him who was party or privy to the Contract and he said If the first Lessee who reserved the Rent entred upon the Land the Rent is suspended Dyer The first Lessee hath Election which of them he will sue 18 H. 6. 1. in Debt against Lessee for years for the Arrearages of Rent reserved upon it he needs not declare that the Lessee had entred for the Contract is the ground of the Action 44 Eliz. 3. 5. Debt against the Lessee notwithstanding the Assignment Mich. 26 Eliz. In the Common Pleas. LXII Bluets Case BLuet granted the next Avoidance to Stell and Brooks and was bound to Brooks in an Obligation that he should enjoy the said Presentment without any disturbance or claim of the said Bluet Stell released to Bluet his Interest on the said Advowson The Church became void Bluet offer'd to joyn with Brook Obligation forfeited in presenting to the Avoydance It was holden in this Case that the Obligation was forfeited although that Bluet had a puisne Title to it after the Obligation was entred into Mich. 32 Eliz. In the Common Pleas. LXIII Shrewsbury and the Inhabitants of Ashtons Case Action upon Statute of Huy and Cry. AN Action was brought by Shrewsbury against the Inhabitants of the Hundred of Ashton in the County of Bucks upon the Statute of Huy and Cry It was moved by Fleetwood Serjeant for the Defendants That if upon such Huy and Cry the Inhabitants do their endeavours as much as in them is to pursue and take the Malefactors and yet they cannot apprehend them that in reason they ought not to be charged But the whole was very strongly against him For Anderson Chief Iustice said that the Inhabitants of the Hundred in which the Robbery is done are bound to apprehend the Felons or to satisfie the Party robbed and the Party robbed is not bound to give notice to the Inhabitants nor to direct them which way the Felons took their flight but the Inhabitants are bound to pursue the Felons without any such instruction And afterwards the Inquest was taken and gave a Verdict in this manner That where the Plaintiff had declared that the Robbery was done in the Parish of D. in the Hundred aforesaid the Iury found that the place where the Robbery was done was a Lane within the said Hundred and that the one side of the said Lane was within the Parish of S. and the other side within the said Parish of D. and that the Robbery was done on the side of the said Lane which was in the Parish of S. and prayed the Opinion of the Court upon the matter And the whole Court was clear of Opinion That notwithstanding the Exception the Plaintiff should have Iudgment for here is the right Hundred which ought to be charged and the mistaking of the Parish was not to the purpose Mich. 32 Eliz. In the Common Pleas. LXIV Josselin and Josselins Case IN Debt the Plaintiff declared That he let certain Lands for years to the Defendant rendring Rent payable at the Feasts of the Annunciation and St. Michael or within forty days after every of the said Feasts and that the Rent was behind at the Feast of St. Michael last past unde actio accrevit The Defendant pleaded Nihil debet upon which they were at Issue It was shewed to the Court that here upon the Pleading is a Ieofail for the Rent is reserved payable at the said Feasts Jeofails or within forty days after and he declares that the said Rent upon which the Action was brought was behind at St. Michael without respect to the forty days after which cannot be for before the forty days after each Feast no Action did lie whereupon the Court awarded a Repleader Mich. 32 Eliz. In the Kings Bench. LXV The Queen and the Earl of Shrewsburies Case THe Queen granted to George Earl of Shrewsbury Grants of the King. Office of Marshal of the Kings Bench. An. 15 Eliz. the Office of Earl Marshal of England and now came the said Earl and prayed that J. N. one of his Servants to whom he had granted the Office of Marshal of the Kings Bench might be admitted to it because that the same is an Office incident to his Office and in his power to grant and that Knowles to whom the Queen had granted the same Office of Marshal of the Kings Bench which she had by the Attainder of Thomas Duke of Norf. might be removed And a President was shewed M. 14 and 15 Eliz. between Gawdy and Verney where it is agreed That the said Office was a several Office from the said great Office and not incident to it And as to the Case of 39 H. 6. 33 34. the truth is that the said Marshal of the Kings Bench was granted expresly to the Duke and so he had it not as incident to his Office of Marshal of England On the other side were three Presidents shewed In the time of Edward 2. That the Office of Marshal of the Kings Bench was appendant to the said Office of Marshal of England And 8 H. 2. when the said Great Office was in the
be made rendring rent with clause of re-entry The Lessor grants the Reversion for life such a Grantee is an Assignee within the said Statute Jefferies The Condition is gone A. leaseth two Acres for years rendring rent with clause of re-entry the Lessor accepts a surrender of one Acre the whole Condition is gone but the rent shall be apportioned A Parson leaseth land whereof he is seized in his own right and land whereof he is seized in the right of his Church for years rendring rent with clause of re-entry and dieth the rent shall go according to his respective capacity and the Condition divided Condition apâ—â—â—â—â—â—ned So if part of the land so demised be evicted the Rent shall be apportioned and the Condition also And he said that the Bargainee is not an Assignee within the Statute Barham If the Reservation doth not make the lease several yet it shall make the Reversion several c. Mead 6 Eliz The Court was moved in this Case A. leased for years rendring rent with clause of re-entry and afterwards became bound to another by Recognizance the Recognizee extended the moiety of the rent and Reversion in Execution Condition suspended and the clear Opinion of the Court was that the Condition was suspended If A. let lands for years rendring rent with clause of re-entry to a Man and to a Feme sole and afterwards the Lessor intermarries with the Feme the Condition is suspended Mounson Iustice The Demise is joynt although that the Reservation be several Cestuy que use is seized of an Acre in possession and of another in reversion and makes a Lease for years of both rendring rent Severance here are several rents 13 E. 3. A. seized of two Acres of lands before the Statute of Westminster 3. made a Feoffment thereof to hold the one Acre by Knight Service and the other in Socage the Tenancy in such case is several 9 Ass 24. a lease is made of a Mill. and of a Wood rendring for the Mill 10 s and for the Wood 20 s. these are several rents and so here they are several rents and several conditions Two Tenants in Common make a lease for years rendring rent upon clause of re-entry the condition is several according to the reversion for joynt words in the Letter have sometimes as the matter requires constructions in the severalty As A and B covenant by Indenture and are reciprocally bound the one to the other to perform all Covenants contained in the said Indenture the same is to be construed such Covenants which on the part of A. are to be performed and so of the other part B. And he conceived that by the distracting of the reversion the condition was gone a condition by an act in law may be divided but not by the act of the party Conditions by act in Law divided not by act of the Party As a man makes a lease for years rendring rent with clause of re-entry takes a Wife and dyeth The Wife recovers the third part of the land devised for her Dower now that third part is discharged of the condition during the estate in Dower but the residue is subject to the condition and vide F. N. B. 21 the Heir at Common Law shall have a writ of Error for his part and the Heir in Borough English for his part two Ioyntenants make a lease for life upon condition and one releaseth the condition Statute of 32 H. 8. of Conditions taken by Equity the same barred the condition And he conceived that the Bargainee is an Assignee for the Statute of 32 H. 8. shall be taken by Equity c. As if a man leaseth lands for years to begin at Michaelmas next and before Michaelmas he makes a Feoffment and at Mich. the Lessee enters the Feoffee is an Assignee within the Statute two Ioyntenants make a lease for years rendring rent with clause of re-entry and the one releaseth to his companion he is an Assignee within the Statute Manwood He is an Assignee and in by the Bargainor The words of the Statute of 32 H. 8. are Grantees or Assignees to or by any Person or Persons and here the Bargainee is an Assignee to the Bargainor as to the use and for the possession he is an Assignee by him He who is in by a common recovery is not an Assignee although the recovery was to his use for the Writ disaffirms his possession if Tenant for llfe be disseised and he in the reversion confirms the estate of the Disseisor and the Tenant for life re-enters the Disseisor is now an Assignee but otherwise it is if he in the reversion doth release to the Disseisor and he conceived that the Lessor should recover part of the land in an action of Waste or enter in part of the land for a forfeiture for an alienation in fee that the condition remains Harper Several reservations do not make several leases for the reservation is not of the essence of the lease for it is good without any reservation and whereas it hath been said that a Lease is a contract I say Difference between a Reservation and a Contract that there is a great diversity between a reservation and a contract for if I sell to you a Horse for 40 s. and afterwards I take this Horse out of your possession yet I shall have an action of Debt for the 40 s. But if I lease land to you reserving rent and afterwards enter into parcel of the land demised I shall not have the rent and if I lease two Acres for years with several reservations I shall have but one action of waste but several Avowries according to the several reservations And here if any part of any of the said rents be behind the party may re-enter into the whole therefore the lease is but una eadem And I conceive that the Assignee of the Assignee is by the Statute to take advantage of the condition even to the twentieth degree as a warranty to one of his Heirs and Assigns extendeth to the twentieth Assignee But here in our case he is not such an Assignee that shall take advantage c. for he is in by the Statute scil in the Post but not in the Per and here the Bargainee hath but an use by the act of the Party and the possession of the Statute of 27 H. 8. But admitting that he is an Assignee yet he is an Assignee but of part and therefore shall not have advantage Condition suspended in part is suspended in all c. When a condition is suspended in part it is suspended in all A. leaseth lands for years upon condition and afterwards the lessor confirms his Estate in part for life the condition is gone Dyer The Lease is one and entire although there be several reservations for here are not several capacities nor several interests 42 Ass Two Ioyntenants lease for life rendring rent to one of them yet the rent and
reversion shall be to both of them but if it be by Deed indented the rent shall go to one only according to the literal reservation Vide Litt. 80. 346. But if the Lease had been made by several Limitations as Habendum one Manor for 20 s. and the other Manor for 10 s. then the Lease and the Reversion had been several but here the rent shall not rule the reversion but the reversion the rent and the rent shall be of the same nature as the reversion Tenant for life makes a Feoffment in Fee upon condition and re-enters for the condition broken now by that re-entry the Freehold is reduced to the Lessee for life and the Fee unto the Lessor but the Forfeiture remains Two Ioyntenants one of them makes a Feoffment in Fee of his Moiety upon condition and for the breach of the condition re-enters the Ioynt Estate is revived And he conceived that the Grantee of part of the Estate or part of the Land should not take advantage of the condition and he said that the Bargainor is an Assignee within the Statute If Tenant in Tail makes a Lease for years and afterwards bargains and sells the reversion the Vendee hath a Fee simple determinable and may enter for the condition broken If a reversion be granted to two and to the Heirs of one of them they are Assignees within the Statute and if he who hath but an estate for life surviveth he also is an Assignee for the entire reversion passeth out of the Grantor and that is my Rule Iudgment was given against the Re-entry LXXXIII Pasc 30 Eliz. In the Kings Bench. Surrender LEssee for 21 years took a Lease of the same Lands for 40 years to begin immediately after the death of J. S. It was holden in this case that the same was not any present Surrender of the first term but if J. S. dye within the term then it is a Surrender for it may be that J. S. shall survive the first term Pasc 30 Eliz. In the Kings Bench. LXXXIV Anderson and Heywoods Case Copyholder A Copyholder of an Inheritance of a Manor which is in the hands of the King is ousted of his Copyhold It was holden that he hath not gained any Estate so as he may make a lease for years upon which the Lessee may maintain Ejectione firmae but he hath but a possession against all Strangers And it was holden in this case that if a Copyholder dyeth 1 Leon. 100. Rumny and Eves his heir within age he is not bound to come to any Court during his Nonage to pray admittance or to tender his Fine also if the death of his Ancestor be not presented nor proclamations made he is not at any mischief although he be at full age Pasc 30 Eliz. In the Kings Bench. LXXXV Cook and Songates Case IN Assumpsit Assumpsit the Plaintiff declared whereas Lis controversia had been moved between the Plaintiff Lord of the Manor c. and the Defendant claiming certain Lands parcel of the said Manor to hold the same by Copy c. And both the said parties submitted themselves to the Iudgment and Arbitrement of Mr. Godfrey a man learned in the Law. concerning the said Land and the title of the Defendant to the same The Defendant in consideration that the Plaintiff promised to the Defendant that if the said Mr. Godfrey should adjudge the said Copy to be good and sufficient for the title of the Defendant that then he would suffer the said Defendant to enjoy the said Land accordingly without molestation the Defendant reciprocally promised to the Plaintiff that if the said Mr. Godfrey should adjudge the said Copy not to be sufficient to maintain the title of the Defendant that then he would deliver and surrender the possession of the Land to the Plaintiff without any Suit. And shewed further that the said Mr. Godfrey did award the said Copy utterly to be insufficient c. Yet the Defendant continued the possession of the said Land It was moved that the same was not a good and sufficient consideration to ground an Assumpsit But Gawdy Iustice said it was a good and sufficient consideration because it was to avoid Controversies and Suits And afterwards Iudgment was given for the Plaintiff Trin. 26 Eliz. In the Kings Bench LXXXVI Taylors Case IN Assumpsit the Case was Assumpsit That the Defendant promised to carry certain Apples for the Plaintiff by Boat from Greenwich in the County of Kent to London and the Apples being in the Boat the Boat in which they were by a great and violent Tempest was sunk in the River of Thames so as the said Apples perished c. It was holden to be no Plea in discharge of the Assumpsit by which the Plaintiff had subjected himself to all adventures LXXXVII Trin. 26 Eliz. In the Kings Bench. Devise A. Seized of Lands in Fee and having Issue two Sons Richard and Gilbert by his Will willed That if his Son Richard dye before Issue so that the Land descend to my Son Gilbert then I will that my Overseers shall have the Government of my Lands and of my Son Gilbert Richard took a wife and dyed she being young with Child with a Daughter the Devisor died the Daughter was born It was adjudged in this Case that by this Devise the Daughter was excluded from the Inheritance and that Gilbert should have the Land. Trin. 32 Eliz. In the Kings Bench. LXXXVIII Lukes Case LUke Esq of Tedcaster was Indicted upon the Statute of 13 Eliz. cap 8. for being a Broker in a Vsurious Contract for which he encurred a Praemunire Who pleaded Not Guilty upon which they were at Issue and at the day of the Return of the Distringas the Iurors appeared and the same day that the Iury was to be taken Popham Attorney General sent for the Distringas and for certain causes for the Queen would not proceed Note that the Attorney was informed that the Iury was partial It was moved by Cook that the Attorney could not stay the Proceedings the Writ being returned and the Iury appearing he could not stay the Tryal for no President is thereof Popham The Entry shall be in this case Vicecomes non misit breve Cook That is false and the Sheriff is sworn to make a true return but by consent of the Parties such a thing may be done for Consensus tollit Errorem Quaere 33 Eliz. In the Exchequer LXXXIX The Queen and Painters Case Accompt of the King against a Stranger SIr William Pelham was Surveyor of the Ordnance and delivered the money of the King to Painter Clerk of the Ordnance It was holden in this case That for the said money the Queen might have Accompt against Painter although he wanted a privity which cannot be so in case of a common person for if any Receiver make one his Deputy I shall not have an Accompt against him Popham Attorney General If one of
that Reversion shall descend to all the daughters notwithstanding the half blood for the Estate for years which is made by Indenture by license of the Lord is a demise and a Lease according to the order of the Common Law and according to the nature of the demise the Possession shall be adjudged which possession cannot be said possession of the Copyholder for his possession is customary and the other is meer contrary therefore the possession of the one shall not be the possession of the other therefore there shall be no Possessio Fratris in this case Possesso Fratris But if one had been the Guardian by custom or the Lease had been made by Surrender there the Sister of the half blood should not inherit And Mead said the Case of the Guardian had been adjudged Mounson agreed And it was said that if a Copyhold doth descend to the Son he is not a Copyholder before admittance but he may take the profits and punish a Trespass before admittance CIV Pasc 19 Eliz. In the Common Pleas. A Parson let his Rectory for three years and covenanted that the Lessee shall have and enjoy it during the said term without expulsion or any thing done or to be done by the Lessor and is also bound in an Obligation to the Lessee to perform the said Covenant Forfeiture Quaere Afterwards for not reading of the Articles he was deprived ipso facto by the Statute of 13 Eliz. The Patron presented another who being inducted ousted the Lessee wherefore an Action was brought upon the Obligation It was the Opinion of all the Iustices That this matter is not any cause of Action for the Lessee was not ousted by any Act done by the Lessor but rather for Non feasans and so out of the compass of the Covenant aforesaid as if a man be bound that he shall not do any waste permissive waste is not within the danger of it Pasc 26 Eliz. In the Common Pleas. CV King and Cottons Case IN Ejectione firmae the Case was Lessee for years the Remainder for life the Remainder in Tail to Lessee for years Lessee for years made a Feoffment in Fee with warranty and dyed he in the Remainder for life dyed the Issue in Tail entred and made a Lease to the Plaintiff It was clearly resolved by the Court in this Case Entre Congeable That the entry of the Issue in Tail was lawful notwithstanding that the disseisin was done to another Estate than that which was to be bound by the warranty scil to the Estate for life Vide 50 E. 3. 12 13 46 E. 3. 6. Fitz. Garr 28. Pasc 26 Eliz. In the Common Pleas. CVI. Scot and Scots Case BArtholomew Scot brought a Writ of Accompt against Thomas Scot Accompt Thomas Scot sum ' fuit ad respondend Barth Scot quod reddat ei rationabilem computum suum de tempore quo fuit receptor denariorum c. And declared quod cum the said Thomas Scot fuit receptor denariorum c. recepisset so much by the hands of such a one c. Cumque idem Thomas habuisset recepiâ—â—et diversa bona and shewed what ad merchandizand c. Exception was taken to the Declaration because the Writ and Declaration is general against the Defendant as Receiver whereas for such goods as the Defendant had received ad merchandizand he ought to have been charged as Bayliff Quod Curia concessit Vide Book Entries 19. 46 E. 3. 9. and afterwards the Defendant traversed severally both the Charges whereupon several Issues were joyned and both found for the Plaintiff And as to the monies with the Receipt of which he was charged as Receiver the Plaintiff had Iudgment and as to the others Abatement of Writ which he received ad Merchandizandum the Writ abated And it was said by the Court That the Writ should have abated in the whole unless the several Issues had helped the matter because the Plaintiff might have had an Action for part in other manner Vide 9 H. 7. 4. by Brian 17 Eliz. In the Star-Chamber CVII Morgan and Coxes Case MOrgan exhibited a Bill of Perjury in the Star-Chamber against one Cox setting forth that whereas he was bound to his good behaviour by Recognizance acknowledged in the Kings bench and he in discharge of the said Recognizance had obtained a Writ De Fama gestu to enquire of his Conversation and therefore at the Sessions in the County of Devon where the said Morgan was dwelling the grand Iury charged with the said Matter the said Cox gave Evidence to the said grand Iury in maintenance and continuance of the said Recognizance and upon the Evidence given by Cox the said Bill was conceived It was moved by the Counsel of the Defendant That that Bill upon the matter did not lye for that the Evidence in the Bill for the Perjury was given for the Queen in maintenance of the Recognizance and that to the grand Iury which was charged for the Queen But as to that it was said by the Lord Chancellor and both the Chief Iustices that the Writ De fama gestu Brief de Fama gestu is an especial Writ at the Suit of the Party and not of the Queen and the Court cannot deny it to him who asketh it and the grand Iury as to that matter shall be accounted a special Iury c. Mich. 16 Eliz In the Common Pleas. CVIII Jackson and Darcys Case Tail barred by a Fine 3 Leon. 57. IN a Writ of Partition betwixt Jackson and Darcy the Case was Tenant in Tail the Remainder to the King levied a Fine had Issue and dyed it was adjudged that the Issue was barred and yet the Remainder to the Queen was not discontinued for by the Fine an Estate in Fee-simple determinable upon the Estate in Tail passed to the Conusee Trin. 17 Eliz. In the Common Pleas. CIX Stroads Case Tenures IN a Replevin the Case was Lands holden of a Subject came to the possession of the King by the Statute of 1 E. 6. of Chauntries The King granted the Lands over unto another it was holden in this Case that the Patentee should hold of the King according to his Patent and not of the ancient Lord but the Patentee should pay the rent by which the said Land was before holden as a Rent-seck distrainable of Common right to the Lord and his Heirs of whom the Land was before holden CX Mich. 19 Eliz. In the Common Pleas. A. Seized of Lands in Fee devised them to his Wife for life and after her decease Estate she to give the same to whom she will He had Issue two daughters and died Devises Leon. 121â— the wife granted the Reversion to a Stranger and committed waste and the two daughters brought an Action of waste In this Case it was holden that by that Devise the wife had but an Estate for life but she had also an authority
Mildmay had a Commission to make leases for 21 years of the Lands of the Queen because the Queen should not be troubled with it They could not make leases but in possession only by virtue of their Commission but all others which exceed 21 years and in Reversion passed by the hands of the Attorney of the Queen and not by them only by their Commission 2. Because he cannot make a lease upon a lease for by the same reason that he might make one future lease he might also make 20 leases in ruturo and so make void the Act It was Marshals Case upon the Statute of 1 Eliz of leases to be made by Bishops The Bishop of Canterbury made a lease for one and twenty years and afterwards he made another Lease for 21 years to begin at the end of the first Lease It was holden that the second Lease was not good Leases by spiritual persons as Bishops c. But in the great Case upon that point in the Exchequer Chamber there the second Lease was in possession and to begin presently and ran with the other and therefore it was adjudged a good Lease because the Land was not charged with more than with 21 years in the whole and if it had been so done here it had been good Wray said that if the second lease had been made two or three years before the expiration of the first lease then clearly it had been void but because but one two or three days or a month before he doubted if it should be void or not The Statute of 32 H. 8. Leases made for one and twenty years to be good from the day of the date thereof and one makes a lease to begin at a day to come and by two of the Iustices of the Common Pleas it is good but the two other Iustices held the contrary Clench Iustice There is no difference if it be by one Deed or several Deeds and therefore he held that if the Earl had made a lease for one and twenty years and within a year another it is a void Lease whether it be by one Deed or two Deeds for he exceeds his Authority And so in the principal Case If there had been no Proviso he could not have made any lease therefore the Proviso which gave him Authority ought precisely to be performed At another day it was argued by Daniel for the Lessee in Reversion to begin at a day to come and by him words only are not to be taken or considered in a Statute but the meaning of them and they are not to be severed Also Statute Law is to be expounded by the Common Law and by the Common Law if one give Authority to another to make leases of his Lands he may make leases in Reversion because an Authority shall be taken most beneficially for them for whom it was given So if one grant an Authority to make Estates of his Lands by that general word he may make leases for years or life or gifts in tail Feoffments or other Estates whatsoever If one gives a Commission to another to make leases for One and twenty years of his lands he may make a lease in Reversion and that Case was in the Duchy between Alcock and Hicks Leases 2. It is good by Statute Law For the Statute of Richard 2. which gives Authority to Cestuy que use to make leases he may thereby make leases in Reversion The Statute of 27 H. 8. which gives Authority to the chief Officer of the Court of Surveyors to make leases if it had stayed there he might have made leases in Reversion but the said Statute goes further and says Proviso that he shall not make a lease in Reversion vide 19 H. 8. Dyer 357. The Statute of 32 H. 8. of leases to be made by Husbands of the lands of their Wives by the general words of the said Statute they might make Leases in Reversion But the Statute goes further Proviso that there shall not be any former Lease in being above 21 years before the making of the said Leases In all Cases of Statutes which are with Provisoes the Law upon them shall be taken generally if not in such particulars which are restrained by the Proviso as here the Proviso goes to the ancient Rent to be reserved that the Countess shall have remedy against the Lessees for the said Rent c. therefore it is at large in all other points but in these As if the Wife be within age and she and her Husband joyn in a Lease yet this Lease is good by the Statute of 32 H. 8. because the Law is general and doth not restrain these Imperfections expresly So a Feoffment in Fee with warranty Proviso that he shall not Vouch yet that is a restraint as to the Voucher only and he is at large to Rebutt or have warrantia Chartae A Lease for life Proviso he shall not do voluntary waste he is at large to do other waste but otherwise it were if there were no Proviso Therefore a Proviso makes the words precedent to be expounded more liberally The words of the Statute of 33 H. 8. cap. 39. of Surveyors which gives authority to the chief Officer to devise set or let for 21 years he might have made a Lease for 21 years in Reversion if the Proviso had not been But the words of the Act in our Case are demise demises therefore shall be taken most liberally 3. As to the intent of the Act this Lease is within it for the intent is to be collected out of the words and shall not be drawn to any private intent against the words which should be done here for by such Exposition the Earl his Heirs Executors c. should be prejudiced and the Countess only should be benefited Also Remedy is given to the Countess by this Act against such Lessees that she should have the Rent by Debt or Distress as it she had been party or privy therefore it is reason via versa that they have remedy against her for their Leases Also he said that the same remedy should be for them as against the Earl himself if he had lived therefore they shall have remedy against her who might have had it against the Earl in his life Also the Statute is to be expounded according to the words where such Exposition is not rigorous nor mischievous Also private Laws are to be expounded by the Letter and strictly as the Deed of the party as 14 E. 4. 1. Br. Parliament 16. a particular Act was made that the Chancellor calling to him one of the Iustices might award a Subpoena between A. and B. and end the matter between them there by all the Iustices but Littleton he shall not award a Subpoena general but a Subpoena making mention of the Act for he shall pursue the particular Act strictly and a common Act for the common profit shall be construed largely Also a Statute shall not be construed largely by Equity to
upon all that matter it was holden that the said Francis was inheritable 19 Eliz. In the Kings Bench. CCXXIV. Grey and Edwards Case IN an Attaint by Grey against Edwards it was holden by Wray Gaudy and Jeoffries That if one makes a Deed and that by these words Dedi conveyeth Lands to another without any words of Bargain and Sale and that for a sum of mony If the Deed be debito modo enrolled the use shall pass as well as if the words of Bargain and Sale had been in the Deed because that a sum of mony was paid for the Land. 19 Eliz. In the Kings Bench. CCXXV. Webbs Case IN Action upon the Case the Plaintiff declared That whereas Cobham was indebted to J. S. and J. S. to the Defendant the said Defendant in consideration that the Plaintiff would procure the said J. S. to make a Letter of Attorney to the Defendant to sue the said Cobham promised to pay and give to the Plaintiff 10 l. It was objected Here was not any Consideration for to induce the Assumpsit for the Defendant by this Letter of Attorney gets nothing but his Labour and Travel But the Exception was not allowed of For in this Case not so much the Profit which redounds to the Defendant as the Labour of the Plaintiff in procuring of the Letter of Attorney is to be respected Temps Roign Eliz. CCXXVI Heggor and Felstons Case IN Trespass the Case was A Copyholder surrendred to the use of his Wife for Life and after to the use of his Daughter in Fee the Wife is admitted It was holden that the Daughter after the death of the Wife Copyholder Surrender by Attorney might without any admittance surrender the same Land for the first admittance was sufficient And Manwood said that Roper was Steward of a Mannor and one of the Copyholders of the said Manor being in Ireland he made a Commission to one to receive a Surrender from him there and it was holden a good Surrender CCXXVII Trin. 32 Eliz. In the Exchequer NOte by Manwood chief Baron for a Rule to all Counsellors That they do not advise any Collectors of Subsidies or Fifteens to exhibite any Bills in the Exchequer Chamber for the not payment of Subsidies for such Bills shall not be allowed hereafter because they have remedy by Distress Also it was That if any be assessed for the Fifteens which he ought to pay or if two Towns ought to pay together and one Town be taxed more than it ought to be or hath been accustomed those who are grieved by such Assessment may have a Commission out of the Exchequer which is called ad aequaliter taxand and that was put in practice in a case between Bartace and Hind where one of these was Lord of Little Marlow and the other of Hedsore It was also holden That Fifteens are to be levied of Goods and Chattels properly and a Township is sometimes richer than at other times and therefore it is not reasonable they pay their Fifteens always according to the same proportion But Clark Baron held where the Custom hath always been that the Fifteens shall be taxed according to the quantity of Acres then the rate and proportion shall be always on whosoever holdeth the Land. And as to the Commission ad aequaliter taxand Manwood and Fanshaw said That they could shew twenty Presidents of it Trin. 30 Eliz. In the Kings Bench. CCXXVIII Harris Case THe Case of Harris of the Middle Temple was Tenant in tail in remainder upon an Estate for life is attainted of Felony 2 Leon. 122. Hughs Qu. 13. 3 Leon. 185. 1 Inst â— If he hath forfeited his Remainder during his Life Popham Attorney General He hath forfeited it to the Queen for after his attainder the Law will not suffer it to remain in him and it cannot vest in the Lord of whom the Land is holden for the person attainted being Tenant in tail in remainder was not very Tenant to the Lord therefore if in none of them the Queen shall have it and the Law shall punish the offence so sharply that it suffer nothing to remain in him So Tenant in Dower and by the Courtesie And it is a Maxim What a man hath in his own right he may forfeit but it is not a certain rule Whatsoever a man may grant he may forfeit as Guardian in Socage and Executors may grant that which they cannot forfeit 2 Leon. 126. A man seized in the right of his wife is attainted of Felony the Queen shall have but the profits of the Land during the life of the Husband Vide Register 292. Where the husband seized in the right of his wife of certain Lands is outlawed of Felony the King seizeth and hath the Lands during the life of the husband after the death of whom issued a Diem clausit extremum Vide F.N.B. 254. D. Cook Tenant in tail in possession is attainted of Felony the King shall have but the profits but as our Case is being Tenant in tail in remainder upon an Estate for Life nothing shall be forfeited during his life and after the death of the Tenant in tail so attainted of Felony the Issue in tail may enter for the King hath not the Freehold for if the King had the Freehold the Issue in tail could not enter without Office vide Old Natura Brevium in the Writ of Escheat That the King shall have only the profits At another day it was argued by Egerton Solicitor That the Queen hath the Interest of him in the Remainder during his life for a man so attainted cannot be receiv'd against the Queen and if a man attainted of Felony purchaseth Land and dyeth his wife shall not be endowed of it And he said that this Remainder vested in the Queen without Office then not pardoned by 23 Eliz. It hath been objected That if the Remainder be in the Queen without Office by this attainder of Felony by the Common Law then also in case of attainder for Treason and then what need was there that the Statute of 33 H. 8. should be made which enacteth That in cases of Treason it shall vest in the King without Office. As to that I answer That that Statute was made in affirmance of the Common Law and also for other things given to the King by the Statute which were not given by the Common Law as Conditions Rights c. So as the King might grant over without Office and also the Subject have a Petition of Right before Office which was not at the common Law 33 H. 8. 20. in the saving in the end of it And as to the Statute of 18 H. 6 cap. 6. such things were in the King without Offce for by the common Law before Office the King might grant them but he could not grant them if they were not vested in him and the said Statute was made to such intent that the Queen should be fully informed of her Title c. by
that It was agreed by the Court that that had been a good Exception if the matter had not been relieved by the Statute of 27 Eliz. of Demurrers Another matter was objected upon the Statute of 32 H. 8. cap. 37. upon the words of the said Statute so long as the Lands remain in the possession of the Tenant in Demeasn who ought immediately to have paid the said Rent And it was said by Anderson and Rhodes that the Conusans was good enough and within the relief of that Statute For Lewknor was the immediate Purchaser and although he had let the Lands to another at will that did not make any thing for yet the Estate of the Land is within the words of the Statute for the Land remains in the Seisin of the first Purchaser And note that in this case Bouchier dyed before the Lease expired so as the Rent was not determined in his life And afterwards Iudgment was given for the Defendant Mich. 30 Eliz. In the Kings Bench. CCXXXV Rawlins and Somerfords Case IN Ejectione firmae the Case was Cartwright possessed of a house for the term of 30 years demised a Stall parcel of it to Wartow for two years and afterwards assigned the whole house to Rawlins for all the years Rawlins redemised the same Stall to Cartwright for twenty years but Wartow did not attorn but before the said Redemise Cartwright by Deed indented demised the said Stall to Wartow for six years after the said two years ended and afterwards Rawlins redemised all the house to Cartwright for 21 years rendring rent with clause of re-entry and upon the Indenture of the said Redemise was endorsed that before the sealing and delivery c. it was agreed between the Parties that Wartow should have the said Stall according to the Lease for six years to him made And afterwards Cartwright redemised the said Stall to Rawlins for ten years and afterwards the Rent was behind And if the Rent reserved by Rawlins upon his demise to Cartwright was suspended or not was moved a question Cook argued it was not suspended for Rawlins had in the Estate but an Interest in futuro which cannot suspend the Rent before in possession And he put the Case 31 E. 1. Fitz. Discent 17. Lord and Tenant the Tenant is attainted of Felony and dyeth now the Seignory is not presently extinct For if the Lord takes Fealty of the Son the Seignory doth continue in Esse and Vide Acc. Fitz. N. B. 144. 26 E. 3. 72. Houghton the rent is suspended as if I lease Land and an Advowson rendrint rent and I take back an Estate in the Advowson now the rent is suspended But as to that it was answered That there the party hath a present interest in the Advowson but so it is not in the Case at Bar. And by Cook A. seized in Fee of three Acres makes a Lease of two of them for 21 years rendring rent and afterwards the Lessee leaseth one of the said Acres for years to the Lessor to begin two years after it is not a present suspension of the rent until the Lease come into possession c. And afterwards it was adjudged that by the Lease in futuro the rent was not suspended Pasch 28 Eliz. Rot. 255. Mich. 26 Eliz. In the Exchequer CCXXXVI The Guardians of the Monastery of Otleries Case IN the Exchequer it was found by Special Verdict 1 Leon. 4. That the Guardian and Chanons Regular of Otlery were seized of the Manor of O c. and that 22 H. 7. at a Court holden granted the Lands in question to W. and W. his Son for their lives by Copy according to the Custom of the said Manor and afterwards 30 H. 8. they leased the same Land by Indenture to H. rendring the ancient and accustomed rent and afterwards surrendred their Colledge c. and afterwards W. and W. dyed And if the said Lease so made during the Estate Customary notwithstanding the Statute of 31 H. 8. were good or not that was the Question being within a year before the Surrender c. And it was argued by Egerton Solicitor That the said Lease was void by the Statute the words of which are Whereof or in the which any Estate or Interest for term of Life year or years at the time of the making of any such Lease had his Being or Continuance and was not then determined finished or expired And therefore we are to see if this right or possession which W. and W. had at the time of the making of the said Lease was an Interest or Estate for Life And as to the word Estate est nihil aliud than measure of time for an Estate of Fee-simple is as much as to say an Interest in the Lands for ever and so of the rest and therefore W. and W. had at the time of the making of the Lease an Estate for the thing demised And although such Customary Tenants are termed in Law Tenants at will yet they are not simply so nor meer Tenants at will but Tenants at will secundum Consuetudinem Manerii which Custom warrants his possession here for life and therefore it is a more certain estate than an estate at will for the Copyholder may justifie against his Lord and so cannot a Tenant at will whose estate is determinable at the will and pleasure of his Lessor and although this estate is but by custom and by no conveyance yet it is such an estate which the said Statute intends non refert by what conveyance the estate is raised so it be an estate and this estate being supported by custom is acknowledged in Law to be an estate and so accounted in our Law and the Law hath notably distinguished Copyhold tenancies by the custom and tenancies at will at the Common Law for a Copyholder shall do fealty and have aid of his Lord in an Action of Trespass he shall have and maintain an Action of Trespass against his Lord his wife shall be endowed the husband shall be Tenant by the Curtesie without a new Admittance So customary Tenancies are within the Rules and Maxims of our Law As in the Case of Horewood There shall be a possest o fratris of it without admittance and it was adjudged 8 Eliz in the Kings Bench That if a Copyholder surrender to the use of another for years and the Lessee dyeth his Executors shall have the residue of the term without any admittance M. 14 15 Eliz. A Copyholder made a Lease for years by Indenture warranted by the custom the Lessee brought Ejectione firmae it was adjudged maintainable in the Common Pleas Although it was objected That if it be so then if the Plaintiff recover he should have an Habere facias possessionem and there Copyholds should be ordered by the Common Laws of the Land. 10 Eliz. Lord and Copyholder for Life the Lord grants a Rent-charge out of the Manor whereof the Copyhold is parcel the Copy-holder surrendreth to the use of
A. who is admitted he shall not hold the Land charged and so it was adjudged in the Court of Common Pleas. CCXXXVII Mich. 23 Eliz. In the Common Pleas. IT was holden by all the Iustices in the Common Pleas That the Queen might be put out of possession of an Advowson by two Vsurpations and shall be put to her Writ of Right of Advowson as a common person shall be for it is a thing transitory and if the Queen after such Vsurpations grant the Advowson the Grant is void and so it was adjudged CCXXXVIII Mich. 23 Eliz. In the Common Pleas. THe Case was Tenant in tail the remainder over to another in Fee makes a Lease for life according to the Statute and afterwards dyes without Issue and afterwards he in the Remainder grants his Remainder by Fine before any Entry and by Fenner the Conusee cannot now enter upon Tenant for life nor avoid his lease for by the Livery to the Tenant for life a Freehold passeth which cannot be avoided without an Entry As if a Parson makes a lease for life rendring rent and dyeth the Successor accepteth the rent now the lease is affirmed vide 18 E. 4. 25. and then when before any Entry he in the remainder grants his remainder the Grantee shall have it but as a remainder and so the Estate of the Tenant for life which before was voidable is now made good and so it was holden by Windham and Periam But by Mead and Dyer by the death of Tenant in tail without Issue the lease for life is become void for the Estate out of which the Estate for life is derived is determined by the dying without Issue Ergo c. Vide 21 H. 7. 12. A lease for life is made upon condition That if the Lessor pay to the Lessee at such a day 20 l. that his Estate shall cease now by the performance of the Condition the Estate is determined without any Entry CCXXXIX 32 H. 8. In the Common Pleas. NOte by all the Iustices of the Common Pleas That if a man holds of the King in chief by Knights Service and also holds of another Lord by Knights Service and dyeth his heir within age and the King seizeth the Wardship of the Body and Land and afterwards the heir cometh of full age and before Livery sued the other Lord grants over his Seignory to another and the heir Attorns It is a good Attornment and also Seisin of the Services had by such Lord by the hands of such an heir before Livery sued is good enough and shall bind him afterwards in an Avowry c. Temps H. 8. Vide 31 H. 8. Rot. 420. CCXL Sir William Hollis Case SIr William Hollis brought a Quare Impedit against the Bishop of Coventry Godfrey Fuliamb Kt. and William Waltham Clark The Case was Sir Ralph Langford Kt. was seized of the Manor of D. to which the Advowson was appendant and presented to the same Church one A. his Clark who was admitted c. And afterwards the said Sir Ralph granted the next Avoidance of the same Church to Sir Godfrey Fuliamb James Fuliamb George Fuliamb and William Walton eorum uni conjunctim divisim afterward the said Sir Ralph granted by fine the said Manor with the Advowson to Sir William Hollis in Fee the Church became void the said Sir Godfrey Fuliamb presented the said Waltham his Clark who was admitted c. And upon Argument at the Bar and Bench It was adjudged against the Plaintiff and the Presentment of Sir Godfrey sole without the others was good Notwithstanding also that Waltham the Presentee was one of the Grantees of the next Avoidance Tr. 31 H. 8. Rott 420. Vide 21 E. 4. 66. 35 H. 6. 62. See this Case lately Reported in Sir George Mores Reports by the name of Sir Godfrey Fuliambs Case CCXLI. Temps Roign Eliz. NOte by Hind and Hales the Kings Attorney Iustices of Assize in the County of Essex in the Case of the Bishop of London and one Heron Keeper of Cronden Park if the Keeper of my Park or any of his Servants without his assent of their own heads and without my commandment kill my Deers within the said Park being within his keeping or abateth or pulleth down any house within the Park or Barn for to lay Hay for the Deer there or cutteth any Trees Wood or Vnderwoods there growing and sells the same or gives it to another that in all these cases the Keeper of the Park shall forfeit his Office And it was agreed by them That such a Keeper hath not any estate or possession in the Park or in the Lodge but the possession remains always in the Owner of the Soil of the Park and the Keeper hath but the occupation and keeping and the surveying of the same for such a Keeper cannot justifie the holding of the Lodge with force in a Writ brought upon the Statute of 8 H. 6. by the Owner of the Park but it was agreed that he who hath the inheritance in such an Office shall not forfeit his Office for the causes aforesaid Hil. 29 Eliz. In the Common Pleas. CCXLII. Fitz and Pierces Case IN Ejectione firmae by Fitz against Pierce Pierce was outlawed and now came and shewed by way of Plea that the outlawry was erronious in this videlicet ad Com' meum tent ' 30 Jan. 29 Eliz. whereas the said day was Dies Dominicus and so there was no County Court It was the Opinion of Windham that the same matter did well lye in Plea for it is matter apparent within the Record as in the case of Brecket and Fish Plowd Com. 266. Rhodes and Periam were of a contrary Opinion and said the case cited is not like to the case at Bar for there it appeareth to the Court as Iudges when every Term beginneth and endeth but it is otherwise in our case si 30 die Januarii be dies Dominicus necne for it shall be tryed by the Country c. Trin. 32 Eliz. In the Kings Bench. CCXLIII Keenes Case RAlph Keene Vicar of B. was Indicted for stopping quandam viam valde necessariam Indictment Nusance for all the Kings Subjects there passing Exception was taken to it because it wanted the word Regiam and the word necessariam doth not imply any matter for a Foot way is necessary Addition Also here the Party hath not any addition It is R. K. but it is not said Clarke and for these causes the Party was discharged Trin. 32 Eliz. In the Kings Bench. CCXLIV Peake and Pollorts Case ACtion upon the Case by Peake against Pollort Words upon these words Thou art a malicious and sedicious man and movest the Queens Subjects to Sedition It was the Opinion of the Court that the words were not actionable for they were too general for it may be that the Defendant hath stirred up the Tenants of a Manor to Tumults and Sedition which is not any great Scandal And the Statute of
23 Eliz. is If any Person do any thing to move the People to Sedition the same is Felony but then it must be Sedition against the Queen and of that Opinion was the whole Court. Trin. 32 Eliz. In the Kings Bench. CCXLV Ratcliffe and Shirleys Case THe Lady Ratcliffe brought an Action upon the Case against Shirley for these words Words My Lady Ratcliffe is a beggerly Lady and giveth thread-bare Coats she bought Sheep and cosen'd men of their money and she is as very a Thief as he that robbeth by the High-way Vpon Not Guilty the Iury found that the Defendant spake these words She is a worse Thief than he that robbeth by the High-way It was holden that the words found by the Verdict were actionable as well as if the Defendant had called the Plaintiff Thief generally But it seemed to the Court that upon that Verdict the Plaintiff should not have Iudgment for it may be that the Defendant dixit utrumque at several times and so several Causes of Action And it is not like to the Case 3 Ma. 118. where part of the words is found quoad alia verba non dixit and so expresly acquit him of the remnant so it is not here for this Verdict doth not acquit him of the other words and for that Cause Iudgment was stayed Hil. 26 Eliz. In the Kings Bench. CCXLVI Herne and Crowes Case IN an Action upon the Case by Herne against Crowe and declared that whereas certain Irish Merchants had imported Furs here into England which were offered to be sold in London which Furs the Defendant desired to buy but because he was a Foreigner he could not buy them without peril of forfeiture and then the Plaintiff was in communication with the Merchants to have bought them that the Defendant in consideration that the Plaintiff promised to the Defendant that when he had bought the said Furs the Defendant should have such a quantity of the said Furs as he pleased upon equal price assumed and promised that he would speak no more with the said Merchants for the buying of the said Furs yet that notwithstanding he proceeded in the said bargain and offered to the said Merchants sixty pound more than any other by reason of which the Plaintiff could not have them for such reasonable price as he might have had them before It was holden by Wray Chief Iustice That the Declaration here was insufficient upon which the Defendant might have well demurred Mich. 26 Eliz. In the Common Pleas. CCXLVII. Bakers Case A Writ of Partition by Baker Heir of Gertrudi Marquess of Exeter who devised all his Lands to Blunt by which the third part descend to the Plaintiff Estrepement and prayed a Writ of Estrepement and it was the Opinion of the Court that the Writ is not to be granted for the Plaintiff may have a more proper remedy upon the Statute Cum duo vel tres and in a Writ of Partition no Land is demanded CCXLVIII Mich. Eliz. In the Common Pleas. Conditions A Man was bound in an Obligation that he should release all his right in Black Acre to the Obligor and in the performance of the said Condition he made such a Lease and delivered the same to C. to the use of the Obligor The Opinion of the whose Court was That the Condition was not performed because the Obligor had not the Lease in his own hands to plead but is put to his Writ of Derinue against C. which was not the intent of the Condition Mich. 31 Eliz. In the Common Pleas. CCXLIX Seaman and Brownings Case SEaman brought Debt in an Obligation against Broshnin and others Executors of one Marshall The Condition was That whereas the said Marshall had sold certain Lands to the Plaintiff If the Plaintiff peaceably and quietly enjoyed the said Lands against the said Marshall c and assigned the breach That the said Marshall had entred upon them and cut down five Elms there upon which they were at Issue And it was found that a Servant of the said Marshall had entred and cut them and that in the presence of the said Marshall his Master and by his commandment It was the Opinion of the Court that the Condition was broken and that the Master was the principal Trespasser Trin. 30 Eliz. In the Common Pleas. CCL Babingtons Case HUmphrey Babington brought a Writ of Disceit and counted that T. S. was seized of Land and held the same of the Manor of Rodely which Manor is ancient Demeasn And that the said T. S. being so seized a Writ of Entre sur Disseisin was brought against him in which T. S. pleaded and lost and Iudgment was given against him Et quod ipse Humphridus extitit Dominus Manerii praedicti and concluded ad exhaeredationis ipsius Humphrâ—di periculum manifestum Exception was taken to the Count because the words are quod cum ipse existit Dominus Manerii praedicti where he ought to say further Amendment Et tempore Judicii praedicti existebat for if the Recovery was before he purchased the said Manor his Action doth not lye which Rhodes and Anderson concesserunt wherefore day was given to the Plaintiff to amend his Count. 32 Eliz. In the Exchequer CCLI Sir William Pelhams Case THe Case was A. Tenant for life the remainder in tall to B. c. A by Deed indented and inrolled bargained and sold the Messuage so conveyed to W. P. in fee who suffered a common recovery in which A. is vouched and so a common recovery had and executed and this was before the Statute of 14 Eliz. And if the recovery should bind B. and his remainder in tail was the question or if it be a forfeiture Altham argued that here is a forfeiture 1. It is to see if a common recovery suffered by Tenant for life which here is the Bargainee be a forfeiture or no by the common Law 1 Leon. 264. it s not forfeited 2 Leon. 60 65. if no Execution be sued upon the same Recovery 2. If it be executed then if he in the remainder may enter for the forfeiture When the Tenant for life bargains and sells the Messuage although upon it an estate in fee be limited yet nothing passeth from him but what he may lawfully pass and that was the estate for life of the Bargainor for such an estate only he might lawfully pass and here the Vendee is but Tenant for the life of another and when of his own assent he suffers a common recovery and that without right it is a forfeiture By matter in Fait a particular Tenant may commit a forfeiture as well as by matter of Record By matter in Fait he cannot commit a forfeiture if not thereby the reversion be not pulled out of him in the reversion As if a Lessee for 10 years make a Lease for 1000 years it is not a forfeiture for by that the reversion is not touched but if he by matter of Record do
Aid prayer the Party to have Aid shewed such Special matter But in our Case the Tenant for life hath vouched his Bargainor and not without cause for he hath a warranty from him and the Demandant cannot Counterplead it for he had a Seisin whereof he might make a Feoffment As to the Case 14 E. 3. Fitz. Resceit 135. Lessee for life in a Praecipe against him without Aid prayer pleadeth to the Enquest the first day he in reversion may enter It is true he may enter and enter into the Resceit but not into the Land for a Forfeiture For then Fitzherbert would have abridged that Case in the Title of Entre Congeable and not in the Title of Resceit And the Book in 5 Ass 3. is good Law for there the Tenant doth confess the reversion to be in another but in our Case the Tenant voucheth which is a lawful Act and according to the Covenants of his Purchase And although the recovery was by agreement yet it is not for that a Forfeiture for if the Tenant for life voucheth truly it is not a Forfeiture Before the Statute of West 2. cap. 3. which gave resceit to a woman and to those in reversion where the particular Tenant is impleaded and made default reddere noluerit no remedy for these Cases but a Writ of Right but no Entry and that was for the credit which the Law gave to recoveries car si puissoit then is resceit given but that only in the two Cases aforesaid But afterward because it was found that many particular Tenants being impleaded would plead faintly The Statute of 13 R. 2. gave resceit in such case And upon what reasons were these Acts made if in such cases the Entry was lawful But after these two Statutes another practise was devised for such particular Tenants would suffer recoveries secretly in such sort that those in the reversion could not have notice of it so as they could not ante judicium and prayer to be received for the remedy of which mischief the Statute of 32 H. 8. was made by which all recoveries had against the Tenant by the Curtesie or otherwise for life or lives by agreement of the Parties of any Land whereof such particular Tenant is seized should be void as Tenant by the Curtesie c. should be void against him in the reversion And yet an Evasion was found out of that Statute for such particular Tenant would make a Feoffment with warranty and then the Feoffor should be impleaded in a Writ of Entry and he vouch the Tenant for life who should vouch over and such a Recovery was out of the Statute of 32 H. 8. for the recovery was not against such particular Tenant c. For the remedy of which mischief the Statute of 14 Eliz. was made by which it was provided that such recoveries had where such particular Tenant shall be vouched should ve void if such recovery be had between them by Covin And he conceived That the Forfeiture is not in respect of the recovery it self but of the Plea pleaded by the Tenant And here in our Case there is not any Covin found or that Sir William Pelham knew that he was but Tenant for life but it was found that the recovery was with their assent and that was lawful as this Case is for they may agree to have such recovery for further assurance and so Sir William Pelham hath not vouched any but his Bargainor and that according to their Covenants and this Bargainor was not a bare Tenant for life but had also a remainder in tail although not immediately depending upon the Estate for life which he cut off therefore it was not meerly a feigned recovery And Vide 5 E. 4.2 Br. Forfeiture 87. where Tenant for life being impleaded in a Praecipe voucheth a stranger it is not a Forfeiture for it doth not disaffirm the reversion c. contra of Aid prayer for a stranger may release with warranty to Tenant for life upon which he may vouch And he reported in his Argument That Bromley Chancellor of England sent him to the two chief Iustices to know their Opinions upon these Points and they were of opinion That the Voucher of a stranger was not any Forfeiture and also that after the recovery was executed he in the remainder could not enter but they conceived that the right of him in the remainder was not bound And he said That after the recovery executed he in the remainder could not enter which see Br. Forfeiture 87. 24 H. 8. For if Entry in such Case had been lawful infiniteness of Suits would follow which would be a thing against the credit of recoveries As to the Objection of the Infancy the same will not help the matter 6 H. 8. Br. Saver default 30. Recovery had against an Infant in which he voucheth and loseth is not erronious contrary upon default And if an Infant Tenant in tail suffereth a recovery it is discontinuance for in such Recovery Infancy is not respected And in a Scire Facias upon a Iudgment had against the Father the Heir shall not have his age And he cited a Case out of Bendlowes Reports 5 Eliz. Tenant for life the remainder over to a stranger in Fee Tenant for life is disseized by Covin in a Praecipe quod reddat against the Disseisor he voucheth the Tenant for life who entreth into the Warranty generally and voucheth over the common Vouchee It was adjudged that that recovery was out of 32 H. 8. for the recovery was not had against the particular Tenant but he was but Tenant in Law quia Vouchee and also the recovery is a good bar to him in the remainder notwithstanding that he was within age at the time of the recovery And at another time it was argued by the Barons and Clark said That he conceived that the Entry of him in the remainder was lawful It hath been objected that Pelham did not know that the Bargainor had but for life or that any other person had any remainder in the Land that is to no purpose to excuse him for 42 E. 3. every Purchasor ought at his own peril to take notice of the Estates and Charges upon the Lands which he purchaseth For the Law presumes that none will purchase without advice of Counsel and without knowing the Titles of the Land. And although Statutes have been made to provide against the practises of particular Tenants yet that is no Argument that no other remedy was before And by Littleton If Tenant for life joyneth the Mise upon the meer right it is a Forfeiture And he held strongly That the Iudgment did not take away the Entry a cause of Forfeiture being given before the Iudgment 5 Ass 3. He in the Reversion after Iudgment and Execution may enter See also 22 Ass 31 to the same purpose For where Tenant for life is impleaded he ought to wait upon him in the Reversion and expect Instructions from him in
defence c. and therefore if he maketh default or confesseth the Action it is a Forfeiture And as to the supposed recompence the same doth not help the Case for this common Recovery is no other but an Assurance and Recoverors are but Assignees and they shall take advantage of Conditions by 32 H. 8. and a recoveror shall be seized to the use of him who suffers the recovery if no other use be expressed And he also held that when Tenant for life bargains and sells his Land by Deed inrolled although no Fee passeth 1 Leon. 264. 3 Inst 251. b. Mores r. 212. 2 Leon. 60 65. yet it is a Forfeiture and that by reason of the Inrollment which is matter of Record And he said that if an Infant Tenant for life be disseised the Disseisor dyeth seized and afterwards the Infant dyeth that he in the remainder may enter Gent. to the same intent If Tenant for life c. the same is not simply a Forfeiture for he may have a Warranty or a Release or a Confirmation made to him Attornment doth not give a right but is only a consent yet if he who hath nothing in the reversion will levy a Fine of it to another and afterwards the Conusee bringeth a Quid juris clamat against the tenant of the Land and he Attorns it is a Forfeiture Manwood to the same intent This is a new Case and I have not read the Case in any Book nor seen any President of it And it is a great Case and a general Case and worthy to be argued and I conceive clearly that here is a direct and express Forfeiture at the Common Law without any aid or restraint of any Statute to make it a Forfeiture The dignity of Iudgment in the repute of Law hath been urged which ought to stand in force until they be reversed by Error or Attaint And also Littleton hath been urged 481. where upon the Statute of West 2. cap. 3. he saith that before the Statute aforesaid If a Lease had been made to one for life the remainder to a stranger and afterwards a stranger by feigned Action had recovered against the tenant for life by default and also the tenant for life dyed that he in the remainder had not any remedy But there Littleton doth not report the same as his own Opinion but as an Opinion conceived by a remainder upon the said Statute and it is in truth but a meer conceit And as to the main point he took this diversity Such Recoveries in which the title of the demandant stands indifferently to the Court and Non constat if it be good or not being suffered by tenant for life by default or confession without Aid prayer of him in the reversion do not make any Forfeiture although the tenant for life hath not dealt well with him in the reversion not having prayed in aid of him And in such Case If a Lease be made for life the remainder over in Fee upon such a recovery he in the remainder shall have a Formedon in the remainder or a Writ of Right and shall not oust him who recovered without Action and that by the Common Law. Then came the Statute of West 2. cap. 3. which gave to the Wife Cui in vita upon a Recovery against the Husband by default whereas before she had not any recovery but a Writ of Right and notwithstanding her former recovery ulterius necesse habet ostendere jus suum secundum formam brevis quod prius impetraverat and if his right be not better than the right of him in the Reversion he shall lose the Land notwithstanding the Iudgment given before for him And that Statute gave Resceit or Entry ad terminum qui praeteriit and that Statute is to be intended of such Recoveries where a good or at least an indifferent Title is so as non constat Curiae if it be good or not After that Tenant for life was driven to a near shift and would not make default or lose by nient dedire but would plead but yet faintly for the remedy of which Mischief the Statute of 13 R. 2. was made which gave Resceit in such Case the particular Tenant being restrained by that Statute He jugled yet and practised to suffer a Recover secretly without notice of him in the Reversion To remedy which Mischief the Statute of 32 H. 8. was made and that made such Recovery had against such particular Tenant void against him in the Reversion It hath been objected That the Statute of 32 H 8. doth not give any Forfeiture in that Case but makes that the Recovery be void therefore he in the reversion ought to tarry till after the death of the particular Tenant To that I shall speak after But how our Case is a common Recovery and constat Curiae that the Demandant hath not any right for the Tenant might have barred him and in truth he who recovereth is but a Purchasor Also this recovery is not to the use of the recoverer but to the use of him who was Tenant in it and not paramount as in the Case of a recovery upon a good title a Lease for years made by him who after suffers a recovery is good and shall not be defeated by the recoveree otherwise it is where the recovery is upon a good Title Vide Statute of Gloucest cap. 11. Where upon default of the Tenant resceipt is given for Lessee for years yet if the Tenant vouch upon default of the Vouchee the Lessee for years shall be received and now resceipt of Lessee for years is out of the Book for by the Statute of 21 H. 8. he may falsifie But no resceipt lyeth in the Case of a common recovery for he who recovereth cannot oust the Termor As to that which my Brother Clark hath said That the Bargain and Sale in this Case is not any Forfeiture but when the Deed of Bargain and Sale is inrolled it is a Forfeiture I am not of that Opinion for although that the inrollment be of record yet the Deed is not of record for against the Deed inrolled a man may plead Infancy although none can plead Non est factum to it Also he held that although by the Bargain and Sale and the inrollment of it the Bargainee had not Fee for by such act the reversion is not removed yet by the recovery and the Execution of it the Bargainee had gained the Fee out of the Lessor for the recovery is to the use of the Bargainee against whom it was had c. It hath been objected That he is only a Voucher which peradventure was lawful in this Case by reason of the Warranty paramount or of a release or confirmation with Warranty and two Cases have been vouched to such purpose viz. 5 E. 4. 2. Tenant for life being impleaded in a Praecipe vouched a stranger the Demandant counterpleaded the Voucher which was found for him he in the reversion had no remedy but
by a Writ of Right So if the Vouchee had entred and lost c. As to that Case we ought to consider That every Book reported in our Law is not Law But let us observe of what Authority the Case is truly it is the conceit of the Reporter himself for he puts the Case and resolves it but there is no Iudge or Serjeant named in the Case c. The other Case is 5 E. 4. 2. Note by Hendon clearly If my Tenant for life voucheth a stranger who entreth into the Warranty generally and doth not know how to bar the Demandant the Tenant shall recover in value and the reversion of him who hath in value shall be to me in lieu of my former reversion as release to Tenant for life shall enure to him in the reversion But that is but the Opinion of one Serjeant c. But I answer to these Books If the Demandant in such recovery have a good title so as the Tenant or the Voucher as Hendon saith know not how to bar the Demandant there such a Voucher of a Stranger is not a Forfeiture nor such recovery suffered thereupon for against his will and volens nolens he suffered it But if the Tenant had good matter to bar the Demandant and no good cause of Voucher that the vouching of a stranger or suffering of a recovery is a Forfeiture of his Estate And here in our Case the Defendant had not any title The Tenant or Vouchee had not any Warranty or cause of Voucher But the Tenant might have barred the Demandant if he pleased And he said That the Voucher only doth not make the Forfeiture but much rather the Recovery for when Iudgment is given and Execution had then is the Fee plucked out of him in the reversion 6 R. 2. If Tenant for life claimeth a Fee it is a Forfeiture but here Pelham hath done more for he hath gained Fee by the Iudgment therefore à Fortiori it shall be a Forfeiture But let us a little see what medlings or attempts by the particular Tenant are causes of a Forfeiture and what not 5 Ass 3. Where A. brings an Entry against Tenant for life by collusion to oust B. of his reversion supposing that the Tenant for life held of his Lease The Tenant confesseth the Action upon which Iudgment is given B enters and his entry adjudged lawful for that recovery is adjudged in Law but an Alienation to the disinherisin of him in the reversion and here it appears That such recovery by Covin is but an Alienation and without any strength of a recovery And he cited many other Cases cited before by Altham 14 E 3. Resceit 135. Where Tenant for life pleads in chief or prays in aid of a stranger where he might bar the Demandant and will not it is a Forfeiture And also 22 E. 3. 2. 27 E. 3. where Tenant for life in a Quid juris clamat Attorns unto the Conusee upon a Fine levyed by him who hath not any thing in the Land the same is a Forfeiture and yet that Attornment doth not divert the Reversion out of the Lessor 50 E. 3.7 8. Land was given by Fine in tail the remainder over to a stranger in Fee the Donee took a Wife and dyed without Issue the Wife accepted Dower assigned by a stranger he in the Remainder brought a Scire facias against the Wife that she is Tenant in Dower of the Assignment of a stranger and pleaded to the Title the Demandant recovered she hath lost her Dower for she hath not pleaded dutifully as she ought being a particular Tenant Temps H. 4. Tenant for life loseth his Land in a Recovery against him against his will and thereupon brings Quod ei deforceat and declares upon an Estate tail and recovers the same is a Forfeiture because he hath challenged a higher Estate c. 5 H. 7. Tenant for life joyns the Mise upon the meer Right 2 H. 6. Lessee for years being ousted brings an Assise and recovers 1 H. 7. Accepts a Fine of a stranger sur Conusans c. come ceo que il ad de son done All these are Forfeitures In our principal Case here the Tenant who suffered the Recovery did not plead at all to defend the Right but where he might have barred the Demandant he gave strength to his pretended Title and made it a perfect Title and by suffering the Recovery and Iudgment to pass had taken away the Reversion out of the Lessor to whom he owed Fealty and therefore it is a Forfeiture And without doubt it is apparent to the Court that the Demandant in this Recovery hath not any Title for the Recoverers in such Cases are but Assignees and Purchasors which appeareth by the Statute of 7 H. 8. cap. 4. which gives Distress and Avowry to Recoverers c. As to the inventing of Recoveries it was a necessary Device for it was to take away Estate tails which were the causes of grand Mischiefs and Inconveniencies in this Realm and it was great reason for Tenant in tail might by the Common Law alien his Land post prolem suscitat and then he had an Inheritance and might commit Waste But he was so restrained by the Statute of Westm 2. all the Realm and the Subjects of it were inveigled thereby Ioyntures of Wives Leases of Farmers Mortgages to Creditors Statutes and other Assurances defeated by their deaths which was against the Common Law and all Conscience These matters tending to the knowledge of the Iustices and the Mischiefs thereupon ensuing very frequent and that Tenant in tail was become a perillous Fellow and there was no safe dealing with him Then they taking into consideration that several Warranties and Assets and collateral Warranty without Assets for that in it self implyed Assets did bar him Icil. the Entail upon that consideration they grounded the practice and usage of common Recoveries so that by that means Tenant in tail has potestatem alienandi as he had at the Common Law because his authority was restored to him and injury done to no man But as to Tenant for life he never had potestatem alienandi And as to that which hath been said That the Recovery shall stand in force till after the death of the Tenant for life and in our Case here Tenant in tail is living certainly if the Law should be such great mischief would follow for then greater Ioyntresses the Widows of great Persons having allowed unto them great and sumptuous Houses and Lands furnished with Timber of great value might suffer such Recoveries and so having plucked the Fee out of the Heirs might commit Waste and the same should be dispunishable c. which should be an intolerable Mischief And so he concluded that this suffering of a Recovery was a Forfeiture and Iudgment was given accordingly CCLII Grendon and Albanies Case JOhn Grendon brought Trespass for breaking of his Close against Tho Albany And upon the pleading the Case
the Statute of 33 H. 8. gives to the King Conditions yet it doth not give the performance of them or ability to the King to perform them And there are three Reasons wherefore this Condition cannot pass to the King 1. There is a Condition in the Proviso which precedes the Condition of the Tender viz. If the said Francis my Nephew be given to intolerable Vices then if the said Sir Francis deliver or offer c. and in the whole pleading it is not averred that the Nephew was given to intolerable Vices therefore the precedent Condition not being performed the second Condition is not ripened nor in season 2. The substance of this Condition consists in the will and pleasure of Sir Fr. Englefield therefore it cannot be given to the Queen 3. The prejudice which should come to Francis the Nephew if this Condition should come to the Queen Vide Br. Temps H. 8. A Foundership cannot Escheat or be forfeited by Attainder of Felony or Treason for it is a thing annexed to the Blood which cannot be separated and he said also that the Condition was gon before that tender for the Conveyance by which the Condition was granted was made void by the Act of 29 H. 8. cap. 3. by which it is Enacted That every person within two years after the last day of this Session shall openly shew and bring forth into the Exchequer his Conveyance and there in the Term time in open Court shall Exhibit the same to be entred and inrolled of Record and here the end of the Session was such that all the Terms of the said two years were passed before the tender made by the Queen and although the two years were not past yet all the Terms were past and the Conveyance ought to be shewed in Term time therefore the true time is incurred before the Tender and then the Conveyance is void and by that the Condition gon When the Queen was Tenant for the life of Sir Francis and makes a Lease for years and afterwards by the Condition hath the Inheritance if now she shall avoid the Lease made by her when she was Tenant for life A Disseisor makes a Lease or grants a Rent-charge and afterwards the Disseisee releases unto him he shall not avoid his own Act. A man seized in the right of his Wife makes a Lease for years hath Issue and so is intitled to be Tenant by the curtesie the Wife dyeth he shall not avoid his Lease Feoffor and Feoffee upon condition joyn in a Lease for years the Condition is performed on the part of the Feoffor he shall not avoid his Lease And the Prerogative of the Queen shall not alter the matter against aequum bonum As to the Statute of 29 Eliz. it was not the intent of that to avoid Estates claimed for or by the Queen for the Estate was made for the benefit of the Queen As to the words of the Statute every person or persons which hath or claimeth to have c. the Queen is not within the words If a Statute ordains attendance or restraint of any Liberty which was before at the Common Law there the Queen shall not be within it As to attendance the Queen is not bound to make claim upon a Fine levied As to re-grant the Queen is not bound by the Statute of Westm 3. Quia emptores terrarum also where matter of penalty is imposed Also here is an Oath to be taken c. the Queen being Tenant for the life of another leaseth the Woods and grants to the Lessee power to cut the Woods and convert them to his own use Now if after the Inheritance cometh to the Queen if the Queen may impeach her Grantee truly the property of the Woods and Trees was in the Queen at the time of the Grant and although the Inheritance came to the Queen afterwards yet the same shall not overthrow the first Interest of the Grantee Lessee for life or for years before the Statute of Gloucester could not be impeached for Waste therefore as I conceive the property of the Trees was in him for there was no remedy for them against him See the reason of that in Dr. and Student Quasi the property of the Trees pass to the Lessee with the Demise which shall be taken strongly against the Lessor If the Lessee cutteth the Trees the Lessor shall not have Trespass against him nor Detinue for the Trees Lessee without impeachment of Waste cutteth the Trees and leaves them upon the Land and dyes his Executors shall have them and not the Lessor The Lessor grants omnes boscos arbores suas nothing passeth for they pass to the Lessee if they be not excepted The Lessor against his own Lease cuts the Trees without the agreement of the Lessee Trespass lyeth 5 H. 4. 56. The Heir being in Ward cut Trees in his Lands in the possession of his Guardian who brought an Action against the Heir it was adjudged maintainable although the Free-hold was in the Heir Egerton Solicitor to the contrary Admit the use in Sir Francis be the ancient use yet it is but for life and then when the Queen having the Estate of Sir Francis makes a Lease for 40 years with the grant of the woods the said Lease was void for the Queen was deceived in her Grant Sir Francis was punishable for Waste therefore the Queen having his Interest ought not in Iustice to have cut the great Wood. And it is to be presumed That if the Queen had known the smallness of her Estate she would not have made so great a Lease nor such a Grant of the Wood. The King seized of Land in his own right reciting by his Letters Patents that he hath it by Attainder of J. S. gives the same to another the Gift is void The King licenceth one to appropriate an Advowson without being informed that the same is holden in chief it is void A licence to alien whereas in truth the Land is holden in tail the Reversion or Remainder in the King is also void and here in our case the Queen hath but a particular Estate for the life of another and here out of that petty Estate is drawn a Lease for 40 years where Lessee for life was 60 years of age at the least and also a Grant of all the Trees If the Queen hath a particular Estate and grants totum Statum suum without reciting of such particular Estate the Grant is void the Queen hath the Profits of the Lands of one who is Outlawed in a personal Action and grants to another the Land it self it is void for it is a wrong to a third person which the King cannot do But here the Special Interest of the Queen ought to be recited Now when the Queen being Tenant for the life of another makes Leases ut supra and afterwards the Fee cometh to the Queen the Estate out of which the Leases are derived being determined the Leases also are determined scil
of that which she her self hath done The Queen makes a Lease for years upon Condition that the Lessee surrender to her the Manor of B here for the not doing of it no Office is requisite Tenant of the King in Capite aliens by Fine that needs no Office for that appears upon Record so here And although the Condition be returned in the Exchequer after the Term yet it is well enough for the Exchequer is never shut as to take and receive Money Certificates made to be Inrolled although it be shut as to all Iudicial Acts. And although no tender at all be certified it is not to the purpose for the tender makes the Estate void without any other thing And it is not like to a Capias ad satisfaciendum for that is Ita quod Habeas Corpus c. therefore the Arrest is not sufficient by it self but the same ought to be remembred with an Ita. quod c. But as to that which hath been said That the Queen shall not avoid her own Lease the same is not so nor in case of a common Person As if Tenant in tail enfeoffeth his Heir within age who makes a Lease for years at his full age Tenant in tail dyes Now the Issue shall avoid his own Lease for he is remitted A Disseisor levies a Fine to a stranger the Disseisee enters upon the Conusee and enfeoffs the Disseisor now he shall avoid his own Fine à multo fortiori in the Case of the King. Now it is to see If the Grant of the Wood by the Queen being Tenant for the term of anothers life be good or not He conceived it was not for she was deceived in her Grant not knowing that she was but a particular Tenant It was Objected That the Queen hath property and right in the Trees and Woods forasmuch as no Waste or Trespass lyeth against her if she cast them down Certainly the Lessee if the Trees and Woods be not excepted hath the property in them but not the absolute property for the Writ of Waste shall say ad exhaered ' Qâ—erentis for he cannot cut them Id enim tantum possumus quod de jure possumus perhaps the Lessee shall have the Wind-falls because they are severed from the Inheritance by the act of God not of the Lessee himself and see 27 H. 6. Waste 8. and also in Statham titulo Waste A. leaseth to B. for life without impeachment of Waste a stranger cuts Trees and the Lessee brings Trespass he shall not recover damages for the value of the Trees for the property of the Body and the Tree is in him who hath the Reversion he may give it by which it appeareth that the Lessee is not to recover but only for the cropping and the breaking of his Close à fortiori in case where the Lease is made without the clause absque impetitione vasti as the Case at bar is And therefore when the Queen having so feeble an Estate makes such a Grant scil Grants all the Woods c. the Grant is void for she was deceived in her Grant by which if it should be good she should wrong her Subject A Grant to the Queen shall have a reasonable construction as the Grant of a common Person A. grants to the Queen Common in all his Lands the Queen by that Grant shall not have Common but in Lands commonable not in his Land where his Corn is growing or in his Orchard or Gardens Tenant for life grants all the Wood upon his Land nothing passeth but that which he may lawfully grant So in Cases of Grants of the King 22 Ass 49. the King grants to one bona catalla tenent ' suorum fugitivorum qualitercunque dampnorum the Grantee shall not have the Goods and Chattels of one who hath killed the Kings Messenger So in Grants of Amercements the Grantee shall not have a Special Amercement c. So here the Grant of all Woods ought to be intended of such Woods as Vnderwoods which the Queen might lawfully grant without wrong to another And he said That when the Queen hath granted the Land and the Woods for 40 years that Grant cannot be divided and the words of the Grant are That it shall be lawful to cut the Woods during the space of 43 years Now forasmuch as the Lease is surrendred ut supra the liberty of cutting the Woods is gon also A man bargains and sells his Manor with all Woods upon it growing the Deed is not Inrolled so as the Manor doth not pass the Woods shall not pass in gross for the Grant shall not be divided See more after Sect. 276. Trin. 31 Eliz. In the Kings Bench. CCLIV Brown and Peters Case PHilip Brown Executor of Eliz. Brown brought an Action upon the Case against John Peter as Executor of W. Brown and declared That the said William Brown was indebted to the said Eliz. in 80 l. Cumque ad specialem instantiam of the said William Brown It was agreed that the said William Brown should retain the said Sum in his hands until the said Eliz. should come of full age In consideration thereof he promised to give her 100 l. It was found for the Plaintiff who had Iudgment to recover and now the Defendant brought Error and assigned for Error because the place of the Agreement was not shewed Sed non allocatur for that is the Consideration which is not traversable also it is not shewed certain that Brown retained the 80 l. for so long time Sed non allocatur for he shews in his Declaration That the said Sum was in the hands of the said William Brown and it shall be intended that so it there continued Trin. 31 Eliz. In the Kings Bench. CCLV. Higham and Cookes Case EJectione firmae by Higham against Cooke The Plaintiff declared upon a Lease for years to have and to hold to him from the Sealing and Delivery of it and declared that the Sealing and Delivery was 1 Maij and the Ejectment the same day And this matter was moved in Arrest of Iudgment that the Ejectment could not be supposed the same day for the Lease did not begin till the next day ensuing the Sealing Ejectment c. But the Exception was not allowed by the Court for where the Lease is to begin from the time of the Sealing and Delivery or by these words for 21 years next following the Ejectment may be well supposed to be the same day for the beginning of the Lease is presently upon the Sealing and Delivery and such a Lease shall end the same time and hour as it began CCLVI. Trin. 28. Eliz. In the Kings Bench. IN an Action upon the Case upon Assumpsit the Case was Land was devised to a Feme-sole for term of her life and she let the same to the Plaintiff for 5 years to begin after the death of the said Woman and afterwards by Deed bearing date 18 October leased the same Land to the same Plaintiff
holden by the Iustices that the Fee was executed for a Moiety for the Remainder for years was not any impediment unto the Execution thereof Manwood conceived that the Term was not extinct for it is not properly a term but as an interest of a term which cannot be surrendred Mounson He hath the term in auter Droit viz. as Administrator therefore it cannot be extinct Dyer If an Executor hath a term and purchaseth the Fee-simple the term is determined A Woman Tenant for years taketh a Husband who purchaseth the Fee the term there is extinct Manwood True there for the Husband doth an act which destroyeth the term viz the purchase But if a Woman being a termor marrieth with him in the reversion the term continueth for here is no act of the husband but the act of the Law. Dyer was of Opinion That the Tenant for life and the Administrator should be Tenants in Common of the Fee. The Case was adjourned CCCXLIV Mich. 20 Eliz. In the Common Pleas. THe Case was The Husband is seized in the right of his Wife of certain customary Lands in Fee. He and his Wife by Licence of the Lord makes a Lease for years by Indenture rendring rent have Issue two Daughters the Husband dyeth the Wife takes another Husband and they have Issue a Son and a Daughter the Husband and Wife dye the Son is admitted to the reversion and dyes without Issue And by Manwood the said reversion shall descend to all the Daughters notwithstanding the half blood for the Estate for years which is by Indenture by licence of the Lord is a Demise or Lease according to the order of the Common Law and according to the nature of the Demise the possession shall be adjudged which possession cannot be said the possession of the Copyholder for his possession is customary and the other is contrary and therefore the possession of the one shall not be the possession of the other and so no Possessio Fratris in this case But if there had been a Guardian by the custom or this Lease had been made by surrender then the Sister of the half blood should not inherit And by Mead the case of the Guardian hath been so adjudged Mounson to the same intent And if a Copyhold descend to the Son he is not a Copyholder before admittance but he may take the profits of the Lands and punish a Trespasser CCCXLV. Mich. 15 Eliz. In the Common Pleas. THe Case was A man seized of Lands in Fee devised that his Wife should take the profits of his Lands until Mary his Daughter and Heir should come to the age of 16 years and if the said Mary shall dye that J. S. should be his Heir Manwood The Daughter after she hath attained the age of 16 years shall have the Land in tail for Devises ought to be construed according to the intent of the Devisor as near as it may be collected but no intent shall be taken against all reason and certainty It is certain that the Daughter shall not have the Fee-simple for the same should have descended to her without any Devise and these words if she dyed cannot be intended a Condition for it is certain that she shall dye But if the words had been before the age of 16 years That after her death J. S. should be his Heir in such case it had been a Condition And when it is said That J. S. should be his Heir it shall be intended his Collateral Heir so as the Estate tail remains in the Daughter Mounson and Harper contrary And that she should have but for life And by Mounson if J. S. had been a Stranger to the Devisee she should take nothing And this case was put by Barham Serjeant A man devised 100 l. to his youngest daughter 100 l. to his middle daughter and 100 l. to his eldest daugher and that all these Sums should be levied out of the profits of his Lands And it was the better Opinion of the Court that the youngest daughter should be first paid and then the middle and then the eldest daughter and that was one Coniers Case Mich. 16 Eliz. In the Common Pleas. CCCXLVI The Archbishop of Yorks Case 3 Leon. 159. THe Case was The King granted to the Archbishop of York the Toll of Corn sold in the Market of Rippon and afterwards the King granted to the Mayor and Citizens of York to be discharged of Toll through the whole Realm and afterward the Archbishop exchanged his Manor of Rippon with the King for another Manor It was moved if now the Citizens of York should be discharged of Toll for the Grant to the Archbishop was eigne to the Grant to the Citizens of York to be discharged of Toll in Rippon Dyer conceived that they should not be discharged for the King had no right and when the King grants over the Manor of Rippon the Grantee shall have the Toll notwithstanding the Grant made to the Citizens for the Grant made to them was void as to discharge them of Toll at Rippon for the Grant to the Citizens shall not take effect after the Exchange for the Grant was void ab initio But if the Grant of the King to the Archbishop had been but for life then the Grant afterwards made to the Citizens should have taken effect after the Estate for life determined And the better Opinion of the Court was that Toll should be paid Mich. 29 Eliz. In the Exchequer CCCXLVII The Bishop of Londons Case THe Case was The King Lord Mesne and Tenant the Mesnalty is holden in Chief and the Tenancy by Service the Mesnalty Escheats by Attainder now if the Tenancy shall be holden in Chief Manwood It hath been holden that no Tenure in Capite may be if not by the making of the King And he said That if before the Statute of West 3. the Tenant of the King had made a Feoffment to hold of him so that now there is Lord Mesne and Tenant and afterwards the Mesnalty comes to the King by Attainder and if by the said Mesnalty to the Crown the Seigniory paramount be extinct then the Tenancy is not holden in Chief but if the Mesnalty be drowned in the Seignory it is otherwise Some held That there was a difference where the Mesnalty comes to the Seigniory and where the Seigniory comes to the Mesnalty Quaere Trin. 26 Eliz. In the Kings Bench. CCCXLVIII Burgess and Fosters Case IN Ejectione firmae the Case was That the Dean and Chapter of Ely were seized of the Manor of Sutton whereof the place c. is parcel demised and dimisable by Copy according to the custom And that the said Dean and Chapter by their Deed granted the Stewardship of the said Manor to one Adams to execute the said Office per se vel legitimum suum deputat ' eis acceptabilem After which the said Adams made a Letter of Deputation to one Mariot ad Capiend ' unam sursam redditionem of
Eliz. In the Common Pleas. THe Prior of Bath let his Manor of A. to C. for life rendrint Rent and after the Priory dissolved the King let the whole Manor with the appurtenances to J. S. Dyer The matter depends upon this point If the Demesus be severed from the Services during the life of the Lessee And he conceived that the Lord could not hold a Court if such power were not reserved upon the Lease contrary if but parcel had been leased quod fuit concessum Welch The Demesns are severed from the Services for ever as if they had been granted in Fee but here having regard to the Lessor the Demesns and Services are united and make one Manor But as unto the Lessee and all others the Services are in gross and such also was the Opinion of Dyer And he said That if a Bishop Leases the Demesns of his Manor for life and dyeth the Reversion shall be in his Successor and was in him in his life time in the right of his Church and if Husband and Wife seized of a Manor in the right of the Wife let the Demesns of the said Manor for life yet he hath the Reversion in the right of his Wife and in such Case it remains a Manor but if the Husband alone had let it he had gained the Reversion to him and severed it from the Manor CCCLXVIII Trin. 33 Eliz. In the Common Pleas. THe Case was 3 Leon 252. A man 30 Eliz. made a Feoffment in Fee to the use of himself for life and after to the use of his first Son and his Heirs The Father and the Feoffees before Issue For mony by Deed gave granted and enfeoffed J. S. and his Heirs who had no notice of the use the Tenant for life had Issue and dyed the Issue entred Glanvill The use limited to the first Son is destroyed for without regress of the Feoffees it cannot rise and it is gone by the Livery Vide Plow Com. 347. And also he put the Case of the Earl of Kent who by the Release of the surviving Feoffees a dormant use was destroyed and could not afterwards be revived Harris The use might rise without the entry of the Feoffees and he put a difference betwixt an use created before the Statute and created after for in the first case they ought to enter and if they be disabled by any Act as in the case of Gascoign and the Earl of Kent it shall never rise but in the latter case all the authority and confidence is by the Statute taken out of the Feoffees and the use contingent shall rise without aid of the Feoffees by the operation of the Law for the Land is bound to the uses and charged with them as upon a Recovery in a Warrantia Chartae the Land of the Defendant is charged pro loco tempore and according to the common Experience in Conveyances for payment of the Kings Debts as in the case of Bowden and Dennis the Debtor of the King made a Feoffment in Fee unto the use of himself and his Heirs until he should make a default of payment of such a Sum to the Queen at such a day and for default to the use of the Queen and her Heirs Cooper There needs no entry of the Feoffees and he put the difference before put by Harris between an use created before and an use created after the Statute and now the Feoffees have not any power to revive or destroy such uses but are only as instruments to convey the uses for the use is created upon the Livery and is transferred by the Statute if the person to whom the use is limited be capable thereof at the time of the limitation and he put the Case of Feoffments to uses 30 H 8. and there is a great difference betwixt uses limited before and after the Statute for they have not such a Seisin whereof they may make a Feoffment And he put the Case of Cheny and Oxenbridge Cheny let to Oxenbridge for 60 years and afterwards enfeoffed Oxenbridge to the use of Cheny himself and his Wife for their lives with divers Remainders over and it was adjudged in the Court of Wards that by that Feoffment the term was not extinct And he put the Case of the Lord Paget adjudged in the Kings Bench A Feoffment was made to the use of the Feoffor for life the Remainder to him whom the Feoffor should name at his death in Fee the Feoffor and the Feoffees for good consideration levy a Fine to a stranger and afterwards the Feoffor names one and dyes the party named by the Feoffor shall have the Land notwithstanding the Fine Beaumount The contingent use here is utterly destroyed and it appears by the preamble of the Act of 27 H. 8. that the makers of the said Act did not favour Vses but their intent was utterly to root out Vses and if contingent Vses which are not nor can be executed by the Statute should stand in force the mischief would be That no Purchasor would be secured of his Purchase but should always be in danger of a new born use not before known And he grounded his further Argument upon the reason of Manwood and Dyer Where a man makes a Feoffment in Fee to the use of himself and his Wife that shall be and afterwards he and his Feoffees and those in remainder make a Feoffment to divers new Feoffees and unto new Vses and afterwards takes another wife and dyes it seemed to the said 2 Iustices that by that Feoffment ut supra the contingent Vse was destroyed for when the Estate which the Feoffees accepted of is taken away which is the root and foundation of the Vses which are the Branches and Body of the said Tree it necessarily follows that they also be taken away And forasmuch as the Feoffees by their Livery are barred to enter for to recontinue the Estate which should yield the said Vses they also are gone and extinguished Yelverton conceived that notwithstanding the Feoffment that the use did rise in its due time according to the limitation of it Quaere the Case was not Resolved but Adjourned CCCLXIX Trin. 33 Eliz. In the Common Pleas. IN a Replevin the Defendant avowed for Damage feasant the Plaintiff in bar of the Avowry shewed That he is inhabitant of such a Town and shewed that every inhabitant in every Messuage in the said Town had used to have Common in the place where c. Glanvill The Prescription is not good for want of capacity in the party who pretends interest for it is not certain but applyed to a multitude and he put divers cases to prove the same as 22 H. 6. 21 H. 7. 1. Mariae Dyer 100. The King grants a Rent probis hominibus de Islington the same is void for they are not capable Harris The Prescription is good and he agreed that a confused multitude could not prescribe in matter of Interest but in an Easement or Discharge as
in a way to the Church and that by reason of the custom of the Land and not in their Person Vide 7 E. 4. 26. Where it is pleaded That all the Inhabitants within such a Town have used to have Common there and for a Township to have a way to the Church and by Danby it is good and Littleton said it ought to be pleaded by way of Vsage and 18 E. 4. 3. All the Inhabitants of such a Town time out of mind have used to have Common c. Where a difference was taken where the Prescription is in the Person and where in the Land. 15 E. 4. 29. Cooper Inhabitants of a Town may well prescribe and he vouched Bracton 222 223. Quando acquiritur ex longo usu sive constitutione cum pacifica possessione continua non interrupta ex scientia negligentia patientia Dominorum Et etiam omitti potest per negligentiam and he vouched Britton 144. Common is obtained by long sufferance and also may be lost by long negligence c. The Case was adjourned CCCLXX Mich. 5 Jac. In the Common Pleas. TEnant for life of a Rent acknowledgeth a Statute and releaseth to the terr-Terr-tenant the Statute is forfeited It was holden by Cook and two other of the Iustices in Communi Banco That the Rent as to the Conusee was in esse CCCLXXI IT was holden by Yelverton in his Reading That if a man makes a Lease for two years and confirms the Estate of the Lessee for 20 years it is a good confirmation for 20 years because that all is but a Chattel CCCLXXII IF 2 Ioyntenants are for life and the one grants his Estate for the life of his Companion it was holden to be a Forfeiture for first it is a Severance of the Ioynture and then a Lease for the life of another CCCLXXIII Mich. 5 Jac. In the Common Pleas. TWo men were joyntly bound in an Obligation the one is Principal the other is Suerty the Principal dyed the Suerty took Administration and the Principal having forfeited his Obligation the Suerty made an Agreement with the Creditor and took upon him by Bond to discharge the Debt In Debt brought by another Creditor of the Intestate upon fully Administred pleaded by the Administrator it was a Question if upon shewing of the Obligation and that he had satisfied it and contented it in his proper Debt he should be relieved upon that Plea. It was adjudged he should not because by the joyning with the Principal the Debt became his own Debt CCCLXXIV IF Land be given to A. and B. for the life of C. the remainder to the right Heirs of A. or B. who shall survive It was holden That if A do release to B that the remainder was destroyed And if Land be given to one in Tail and if J. S. comes to Westminster such a day the remainder to J. S. in Fee if the Estate-tail descends to two Coparceners who make Partition now if J. S. come to Westminster the Fee shall not accrue because the particular Estate is not in the same plight as it was before CCCLXXV Mich. 5 Jac. In the Common Pleas. IT was resolved That a Copyholder was not within the Statute of Wâ—â—ls CCCLXXVI Mich. 5 Jac. In the Common Pleas. A Man makes a Feoffment with warranty If the Feoffee brings a Warrantia Chartae against the Heir who pleads riens per discent at the time of the Voucher and it is found for the Tenant It was holden That the Plaintiff should never after have Execution of Lands which after descend for that it is peremptory for the Demandant CCCXXLVII Mich. 5 Jac. adjudge acc ' THe Queen hath the Isle of Garnsey and cognisance of Pleas within it for her Ioynture A man within Garnsey being disturbed to present to a Church which is void brings a Quare Impedit in Communi Banco It was holden in this Case That Garnsey is an Island where our Law runneth not but it is otherwise of the Isle 〈◊〉 Man c. And it was said That if the King grants cognisance of Pleas a man shall not have cognisance of Quare Impedit Assise Redisseisin c. CCCLXXVIII Mich. 5 Jac. In the Common Pleas. NOte It was resolved by the Iustices That if a Parson takes a Benefice above the value of 8 l. with a Dispensation and afterwards takes a 3 l. Benefice that the first Benefice is void by the Statute of 21 H. 8. cap. 13. CCCLXXIX 44 Eliz. In the Kings Bench. NOte It was said that it was adjudged 44 Eliz. in Banco Regis That if Lessee for life granteth his interest to his Lessor that the same shall not enure as a Surrender because there wants words of Surrender but shall enure by way of Grant only CCCLXXX Hil. 5 Jac. In the Kings Bench by Cook. IT was holden by Cook Chief Iustice 1 Roll. 844. Syderf 445. If a man seized in Fee deviseth that after the death of his Son without issue that J. S. shall have his Lands that in that case the Son hath an Estate in Fee determinable and that the Remainder is good Mich. 5 Jac. In the Kings Bench. CCCLXXXI Balls Case A Copyholder pleaded That the Custom of the Manor was that every Copyholder for life might appoint in the presence of two others that such a man should have his Copy-hold after his death without any Surrender to his use and that the two Tenants should assess for his Fine what Sum they pleased so as it was not lesser than had used to be paid where the Lord would assess a reasonable Fine and it was adjudged that it was a good Custom Pasc 6 Jac. In the Common Pleas. CCCLXXXII Glascocks Case A Copyholder alledges the custom to be That all the Tenants within such a Manor in Essex had used to cut down Trees to repair their Copyhold and Freehold Tenements within the Manor and also to sell their Trees at their pleasure And adjudged a good custom Mich. 1 Jac. In the Common Pleas Rot. 854. CCCLXXXIII Sapland and Ridlers Case IT was adjudged after long Argument That where the custom of a Copyhold Manor was to admit for life and in remainder for life at any time when there is but one Copyholder for life in possession And during the minority of the Heir within the age of 14 years his Guardian in Soccage in his own name admits a Copyholder in remainder for life that it was a good Admittance according to the custom and he was Dominus pro tempore well enough as to that purpose although it was objected by Walmsley That the Guardian is but a Servant and not Dominus but because it was agreed that he had a lawful interest the admittance was good And so it was adjudged Pasc 3 Jac. In the Common Pleas. CCCLXXXIV Duke and Smiths Case IT was agreed That if he in the Reversion suffereth a Common Recovery to Vses his Heir cannot plead that his Father had not any thing at the
and before the 13 Weeks past the Lessor dyed and the Plaintiff his Executor brought Debt for the Rent It was adjudged by Cook and the other Iustices That the Action did not lye forthe Rent For the Rent being to be paid at Mich. or within 13 Weeks after the Lessee hath Election to pay it at any of the days and before the last day it is not due and when the Lessor dyeth before that day his Executors have not any right to the Rent but after the death of the Lessor having but an Estate for life the Rent is gone But if the Lessor had had a Fee-simple in the Land and had dyed before the last day the Heir should have had the Rent as incident to the Reversion But if the Lessor had survived both days the Rent had been a thing vested in him and his Executors should have had it but if the Rent had been reserved at Mich. and if it be behind by 13 Weeks that then it should be lawful for the Lessor to enter if the Lessor survive Mich his Executors shall have Debt for the Rent for then the Rent is due and the 13 Weeks are but a Dispensation of the Entry of the Lessor until that time And in this case as well as where the Rent is reserved at two days in the disjunctive it is sufficient that the Rent be demanded at the latter day without demanding of it at the first day Mich. 10 Jac. In the Common Pleas. CCCCIV Sir Baptist Hix and Fleetwood and Gotts Case Roll. tit Condition THe Case was Fleetwood and Gotts bargained and sold Weston Park being 300 Acres of Land to Sir Baptist Hix for 11 l. for every Acre which did amount to 25 30 l. and in the premises of the Indenture of Bargain and Sale it was agreed by the parties That the said Park being Wood-Land should be measured by a Pole of 18 Foot and a half And further it was covenanted That Fleetwood and Gotts should appoint one Surveyor and Hix another who should measure the said Park and if it by the measure should exceed the Number of Acres mentioned in the Indenture that then Hix should add to them according to the proportion of 11 l. for every Acre and if it wanted of the Measure then the said Fleetwood and Gotts should repay to Hix the Surplusage of that Mony according to the proportion of 11 l. the Acre And upon the Indenture Hix brought Covenant and Assigned a Breach because upon Measure it wanted 70 Acres and the Defendants did demur upon the Declaration because the Plaintiff had not therein shewed by what measure it was measured for they said by Shirley That although it was agreed in the first part of the Indenture that the measure should be by a Pole of 18 Foot and a half yet when they come to the Covenants there they do not speak of any Measure for which cause it shall be taken for such a Measure as the Statute speaks of scil a Measure of 16 Foot and a half the Pole and by such Measure there wants not any part of the Acres Dodderidge contr And he put this ground That if certainty once appeareth in a Deed and afterwards in the same Deed it is spoken indifferently Reference shall be unto the certainty which appeareth And therefore if by an Indenture Lands be given to a man Haeredibus masculis and afterwards in the same Deed it appears it is Haeredibus de Corpore suo It shall be an Estate-tail because the first words were indefinite and the last certain by which it appeared that he passed but an Estate in Tail And 4 E. 4. 9. b. the words of a Declaration was Noverint universi per praesentes nos J. S. teneri c. W. B. in 20 l. solvendum eidem J.S. It was holden by the Court the same did not make the Obligation void because it appeared by the first part of the Obligation that he should be bound to the Plaintiff and therefore the intent being so the Plaintiff might declare of a Solvendum to himself And the words J. S. should be Surplusage And 22 E. 3. 4. the Abbot of Selby granted quandam annuam pencionem 〈◊〉 ad rogatum J.E. illam scilicet quam idem J. E. habuit ad terminum vitae suae Et solvendam quousque sibi de beneficio Competo provisum fuerit It was holden by the Court in a Writ of Annuity brought That the word sibi should have reference to B. the Grantee and not to J. E. And Cook said That the original Contract did leave the Measure in this Case and for that he vouched Redwellys Case in Plowd Comment A Lease rendring Rent at Mich. at D. and if it be behind for a month after demand that the Lessor shall re-enter it shall be demanded at the first place Trin. 12 Jac. In the Star-Chamber CCCCV. Sir Richard Egertons Case IN this Case the Wife of Sir John Townsend being sentenced in 1000 l. and in Execution in the Fleet for the Costs of the Plaintiff these Points were resolved by the Court 1. If a man be Sentenced in the Star-Chamber to pay a Fine and to Imprisonment and the Delinquent renders his Body to Prison that notwithstanding the Body continues in Prison the King shall be satisfied the Fine out of the Profits of the Delinquents Lands 2. If a Feme Covert be sentenced there and she renders her Body to Prison and there abides That the Lands of her Husband shall be sequestred and the Profits thereof for the Fine of his Wife And that now upon the Statute of Recusancy the Lands of the Husband for the Recusancy of his Wife if he do not render her to Prison and discharge the same 3. If a man be Sentenced in the Star Chamber to pay a Fine and to have Imprisonment and he yield himself to Prison That before his Fine be also paid he shall not proceed in any Action at the Common Law against the Party in the same Suit. Pasc 12 Jac. In the Common Pleas. CCCCVI Crane and Parkins Case IN Trespass The Defendant pleaded that the Land in which was parcel of the Manor of Broughton Astley demisable by Custom and shewed That the Custom of the Manor was that if any Tenant for life dyed that the Lord for three years Fine ought to grant the same to his Heir and pleaded a Grant of the Manor to the Lord Grey of Grooby And also pleaded another Custom of the said Manor That if any Tenant for life of the said Manor had a Wife and dyed that the Wife shall have in the Land her Widows Estate And that after the death of the Wife that the Son for a Fine of three years paid to the Lord should have it for his life and that the Defendant claimed as Son according to that Custom The Plaintiff made Title as Lessee for years to the Lord Gray of the Manor and traverseth that there was not any such Custom
the contrary for the Estate of Tenant for life and he in the Remainder are but one Estate and the admittance of the particular Tenant is the admittance of him in the Remainder XXXIX Mich. 33 Eliz. In the Exchequer IN an Information upon the Statute of 5 Eliz. cap. 4. Upon Statute of 5 Eliz. Apprentices against one for exercising the Trade of a Chandler not having been an Apprentice to the same by the space of 7 years It was holden by the Iustices That for as much as he had been Apprentice to a Taylor for 7 years which is one of the Trades mentioned in the said Statute that the penalty thereof did not extend to him but Iudgment was given against the Informer For it was holden clearly upon the said Statute That if one hath been an Apprentice for 7 years at any Trade mentioned within the said Statute he may exercise any Trade named in the said Statute although he hath not been an Apprentice to it Mich. 33 Eliz. In the Exchequer XL. Sir John Hawkins and Chapmans Case IF A. be bounden to B. by Obligation with Condition for the performance of Covenants although the Covenants Assignment of Bonds to the Queen or some of them be for payment of money yet the assignment of such Bonds to the Queen shall not be received and if it be assigned it shall be put out of the Court For no Bonds shall be assigned ut supra but such which are made for payment of money XLI Mich. 33 Eliz. In the Exchequer A. Lessee for years the remainder to B for years the term of A. came to the Queen and afterwards the Reversion Clark Baron said That the Lease of B. should begin presently and cited the Case 1 Eliz between Wortesly and Adams where a Lease for years is made to A. and afterwards a Lease in Reversion is made to B. for years A. obtains an Estate for life from him in the reversion the Lease of B. shall begin presently But Manwood Chief Baron held that the first Lease was not extinct XLII Mich. 33 Eliz. In the Exchequer Upon Stat. 31 Eliz. of Inmates UPon the Statute 31 Eliz. cap. 7. the Case was this A Woman having a great Messuage viz. a Brewhouse alotted to her for her Dower let the same to another reserving to her self two or three Rooms of it and now an Information was exhibited against the Lessee upon the said Statute Clark Baron A Cottage proprie loquendo is where a poor man inhabits and this being a great Messuage cannot be said a Cottage Inmates are where there are more Families than one Manwood Be it a Messuage or a Cottage for more Families than one makes a Messuage a Cottage as to this Statute Gent. The words of the Statute are There shall not be more Families than one in any Cottage made or to be made and I conceive it ought to be a Cottage accounted in Law before the inhabitations of the Inmates Clark If I grant to you all my Cottages in D. my Messuages shall not pass If I marry my Daughter and she and her Husband inhabit with me in the same house are these Inmates Manwood An Inmate is such an one who is at his own finding and therefore if the Husband and Wife are entertained there at the charge of the Father of the Daughter they are not Inmates And if in our Case any Inmate be the same is the Woman for she hath the lesser part of the Messuage Mich. 33 Eliz. In the Exchequer XLIII Cursons Case 3 Leon 239. Execution of a Statute binds the King. CUrson acknowledged a Statute to Alderman Starkey of London and afterwards he acknowledged another Statute to one Hampden who assigned the same to Fitton who assigned the same to the Queen Starkey sued forth Execution upon his Statute and the Lands of Curson are Extended and he hath a Liberate of it Assignment to the Queen It was agreed by all the Barons if Starkey had Execution upon his Statute before the Queen the Execution shall stand against the Queen and the Queen should not put him out A. recovers Debt in the Kings Bench so as he hath Title to sue Execution by Elegit The Defendant sold his Lands and afterwards A. assigned his Execution to the Queen It was holden that the Queen should not have Prerogative against the Feoffee to have Execution of the whole Land and it was holden by Manwood Chief Baron If Execution be had upon a puisne Statute and that is afterward avoided by an elder Statute and the elder Statute is satisfied by the Execution now the younger Recognizee shall enter without suing forth a new Execution Trin. 26 Eliz. In the Kings Bench. XLIV Clarks Case IN Ejectione firmae The Case was the Master Brothers Leases by Corporations Misnosm and Sisters of the Hospital of the blessed Mariae Virginis by Indenture by the name of the Hospital Beatae Mariae c. leaving out the word Virginis leased the Land It was resolved that notwithstanding the want of the word Virginis that the Lease was good Then it was moved that the words of the Indenture are Haec Indentura inter Magistrum Fratres Sorores Hospital Beatae Mariae c. Testatur that the said Master with the assent of the Brothers and Sisters aforesaid had leased to A. in cujus rei testimonium the said Master with the assent of the Brothers and Sisters aforesaid had put their common Seal Ayliffe and Clench Iustices held that the Lease was void for here the Brothers and Sisters being one entire Body with the Master are not parties to the Indenture but give their consent only And it is not like to the Case where Abbot or Prior makes a Lease for years with the assent of their Covent for the Monks and Friers being dead persons in Law cannot be parties to the Lease but here in the Case at Bar the Brothers and Sisters are persons able in Law And it is not like to the Case of Parson Patron and Ordinary where the Parson with the assent of the Patron and Ordinary grant a Kent-charge for there the Parson is the principal Grantor and the others have not any express interest in the Land charged Gawdy Iustice contrary It is more honourable for Iudges to maintain Leases made by Corporations than for to permit them to avoid the same And he said for law If two Ioyntenants be of Lands and they make the like Indenture viz. Testatur that one of them with the assent of the other deviseth the Land Leases in witness whereof he with the assent of the other hath put his Seal it is a good demise by them both But Clench said that is not like our Case for the two Ioyntenants are distinct persons and the one of them may assent to the other but in our Case the Master Brothers and Sisters are but one person in Law and a Body cannot be distinct so as one can consent to the other
King he granted the said Office of Marshal of the Kings Bench But 26 R. 2. both Offices were rejoyned by Parliament as they were in ancient time before and there was also shewed one Patent of 4 E. 4. and another of 19 H. 8. by which it appeared that the said inferiour Office had ever been part of the Grand Office Then it was moved That when the said Office is in the Kings hands and the King grants the said Vnder Office If the same was for ever severed from the Grand Office. Wray Chief Iustice It is a severance of it for the chief Office is an Office of Dignity which remains in the King but the under Office is an Office of Necessity and the King himself cannot execute it wherefore of necessity he ought to grant it Another matter was moved Recital in Grants of the King. If the Grant of the King to the Earl of Shrewsbury was good because in the Grant to Verney of the Vnder Office it is not recited according to the Statute of 6 H. 8. cap. 9. As 20 Ass 6. the King seized of the Honor of Pickering to which a Forrest was appendant The Bailywick of which Forrest he granted in Fee rendring Rent and afterwards he granted the Honor with the Appurtenances and afterwards the Baily committed a forfeiture and the same was found in Eyre for which the Office of Bailywick was forfeited the Grantee of the Honor seized it yet it was holden that the King should have the Rent And here in this Case the Earl of Shrewsbury shall have this Office in his power to grant it and so much the rather for that it was granted but for life Mich. 32 Eliz. In the Kings Bench. LXVI Conies Case Roll. Abrig 894. Sale of Goods by the Sheriff upon Execution where good where not IN Debt It was holden that if the Sheriff upon the Fieri facias makes sale of the Goods of the Party and afterwards doth not return his Writ yet the Sale is good The Case went further That upon the Fieri facias the Sheriff returned That he had seized Goods of the Party to such a value Sed non invenit Emptores and afterwards before sale of them he is discharged and afterwards a Distringas issued to the new Sheriff to cause the ancient Sheriff to sell the said Goods who did so It was holden that the said sale of them was void for the new Sheriff ought to have sold them Vide 34 H. 6. 36. A Distringas to the old Sheriff to sell and deliver the Goods to the new Sheriff Mich. 19 Eliz. In the Common Pleas. LXVII NOte by Dyer and Manwood A. leaseth to B for years Remainder where void the remainder to the right Heirs of the said B. and makes Livery That the remainder is void because there is not any person in esse who can take presently by the Livery and every Livery ought to have its operation presently But where a Lease is made to B. for life the remainder to his right Heirs there he hath a Fee executed and it shall not be in Abeyance for there he takes the Freehold by the Livery Mich. 19 Eliz. In the Common Pleas. LXVIII Hindes Case UPon an Habeas Corpus for one Hinde Habeas Corpus the Warden of the Fleet returned That Hinde was committed to the said Prison by the commandment of the Commissioners in Causes Ecclesiastical It was holden that the Warden in his return Cause of commitment where must be returned where not ought to certifie the cause for which he was committed and then upon the return the Court ought to examine the cause if it be sufficient or not But if one be committed to Prison by the commandment of the Queens Privy Council there the cause needs not to be shewed in the return because it may concern the state of the Realm which ought not to be published LXIX Hil. 31 Eliz. In the Common Pleas. IN a Writ of Dower the Demandant recovered by default Whereupon a Writ issued to Enquire if the Husband died seised and of the damages and the Sheriff took an Enquest of Office by which it was found that the Baron did not die seised prout eis constare poterit and that Inquisition was returned by the Sheriff and filed It was moved Return of the Sheriff where void That the said Inquisition and Office was not good for the Office ought to find expresly that the Husband died seised or not and not doubtfully as it is here prout eis constare poterit and for that cause the Award of the Court was That the return should be taken off the File because it was insufficient and a new Writ was awarded Mich. 19 Eliz. In the Common Pleas. LXX The Lord St. John and Sir John Grays Case Grants of Omnia bona by an Executor what passeth NOte by Dyer and Manwood upon an Evidence unto a Iury in Debt brought against the Defendant as Executor of his own wrong That if an Executor gives omnia bona sua the Goods which he hath as Executor shall not pass which vide 10 E. 4. 1. by Danby But the contrary of that was holden by Wray Chief Iustice of the Kings Bench And Plowden in the Case of Bracebridge 18 Eliz. and they said that the said Case of 10 E. 4. was not Law for by such grant made by Executors the Goods of the Testator should pass Mich. 18 Eliz. In the Common Pleas. LXXI Taylors Case Outlawry how to be avoided TAylor was Outlawed in debt where a Supersedeas of Record was delivered to the Sheriff before the awarding of the Exigent It was holden that the Party should avoid the same by Plea Then it was moved if the Plea should be pleaded by Attorney or in Person to which it was said by Manwood Iustice that where Matter in Fact is pleaded in avoiding of an Outlawry it ought to be pleaded in person but a matter of Record might be by Attorney And so it was said by Ford Prothonotary it was agreed in Sir Tho. Chamberlains Case 7 Eliz. and so it was agreed in the Principal Case 18 Eliz. In the Kings Bench. LXXII Bettuans Case IN Ejectione firmae The Case was A Fine was levied to Cook and three others and by an Indenture between the Parties to the Fine it was declared that the said Fine was levied ea intentione That the Conusees should make an Estate of the said Land to such a person which the Conusor should name and in the end of the said Indenture was a Proviso that the Conusees should not be seized to any other use but to that which was specified before and that the Conusees should not incumber the said Lands And the Opinion of all the Iustices of the Kings Bench was Fines levied to uses That upon the said Indenture the Conusees are seized to their own use until the Conusor hath made nomination and if he dieth without any nomination then the use
lie Mich. 27 Eliz. In the Kings Bench. XCVII Baspoles Case THe Father seized of Lands is bound in an Obligation 3 Leon. 118. 2 Leon. 10 1. Stiles 148 Devise to his Son and Heir and devised his Land to his Wife until his Son shall come to the age of 21 years the remainder to the Son in Fee and no other Land descends to the Son from his Father It was moved that the Heir in this case at his Election might wave the Devise and take by descent or è contra Vide 9 E. 4. 18. per Needham It was the Opinion of Gawdy and Fenner Iustices that the Son should be adjudged in by descent Clench held the contrary Mich. 27 Eliz. In the Kings Bench. XCVIII Onions Case IN an Action upon the Statute of 5 Eliz. for hunting in his Park the Statute gives treble damages It was the Opinion of the Iustices that notwithstanding that the Statute gives treble damages Costs that the Plaintiff should have Costs also XCIX Mich. 27 Eliz. In the Kings Bench. IN Debt the Plaintiff had Iudgment to recover and a Scire Facias issued against the Bail before any Capias issued against the Principal Bail. and the Bail was taken and now they came and shewed this matter to the Court and prayed to be discharged Wray Iustice said They shall be put to their writ of Error for being but Error in Process we may reverse our own Iudgment C. Mich. 14 Eliz In the Common Pleas. A Man seized of a Pasture within which are two great Groves and Wood known by the name of a Wood leased the same by Indenture for years and also in the same Pasture were certain Hedgrows and Trees there growing sparsim by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses and further that it shall and may be lawful to the Lessee to cut down and carry away the same at all times during the term Harper said the Hedg-rows did not pass by these words for they are not known by the name of Woods 14 H. 8. 2. Manwood held the contrary Mounson contrary to Manwood for the words of the Grant may be supplied by other in it viz. Woods Dyer held that these Hedgrows should pass for the Grant is general It was further moved if by these words the Lessee might again cut them c. or but once Harper Manwood and Mounson three of the Iustices held That he might cut them but once But Dyer held the contrary said so it should be if the words had been growing upon the Premisses and this word growing although it sounds in the present tense yet it shall be taken also in the future tense if not that the word tunc be laid for that is a word of restraint The case which was argued in the Chancery 27 H. 8. where I was present was this The Prior of St. Johns let a Commandry Provided that if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void And it was doubted if that Proviso did extend to the Successor for this word being in the present tense and yet it was holden by Fitzherbert that it should be taken in the future tense and so to extend to the Successor but otherwise if the words had been nunc being 15 Eliz. In the Common Pleas. CI. Conies Case A Man seized of Lands in Fee devised Devises that his wife should take the profits of his Lands until Mary his daughter and Heir should come to the age of sixteen years and if the said Mary died that J.S. should be his Heir Manwood said Tail. That the daughter after she had attained the age of sixteen years should have the Lands in Tail for Devises shall be construed according to the interest of the Devisor if they have any certainty or reason but no intent shall be taken against reason and certainty It is certain the daughter shall not have Fee-simple for that should have descended to her without any Devise and these words if she dye cannot be intended a condition for it is certain that she shall dye but if the words had been If she dye before the age of sixteen years J. S. should be his Heir that had been a condition and if the words had been That after the death of Mary J. S. should be his Heir So as the Estate Tail remains in the daughter Mounson and Harper contrary And that she shall have but for life Mounson said That if Mary had been a Stranger to the Devisor she had taken nothing Devisee who shall first take And this case was put by Barham Serjeant A man devised 100 l. to his youngest daughter and 100 l. to his middle daughter and 100 l. to his eldest daughter and that all these sums should be levied of the Profits of his Lands It was holden by the better Opinion that the youngest daughter should be first paid and then the middle and then the eldest daughter c. and that he said was Conies Case CII 6 Eliz. In the Common Pleas. A Man made a Lease for life and afterwards made a Lease to another for years to begin after the death of the Tenant for life the Lessee for years died intestate the Ordinary committed Letters of Administration to A. the Tenant for life and A. joyned in the Purchase of the Fee-simple of the Land demised It was holden by the Iustices in this Case that the Fee was executed for one Moiety for the remainder for years Estate executed was not any impediment to the execution of it Manwood conceived that the Term was not extinct for the same is not properly a term Extinguishment but only an Interest of a Term which cannot be surrendred Mounson He hath the Term in auter droit as Administrator and therefore it cannot be extinct Dyer If an Executor hath a Term and purchaseth the Fee-simple the Term is determined A woman Termor for years takes Husband who purchaseth the Fee the Term is extinct by Manwood for the Husband hath done an act which destroys the Term scil the Purchase But if a woman being a Termor marrieth with him in the Remainder the Term continueth for here it is not the act of the Husband but the act of Law. It was the Opinion of Dyer Tenants in Common that in this case the Tenant for Life and the Administrators should be Tenants in Common of the Fee. CIII Mich. 17 Eliz. In the Common Pleas. THe husband is seized in right of his wife of certain customary lands in Fee and he and his wife by licence of the Lord make a Lease for years by Indenture rendring rent have Issue two daughters and the husband dyeth the wife takes another husband and they have Issue a son and a daughter the husband and wife dye the son is admitted to the Reversion and dyeth without Issue and by Manwood
or his Servant had put the Horse to grass and afterward the Horse is stollen there an Action upon the Case doth lye Trin. 29 Eliz. In the Common Pleas. CXCVII Neals Case IN a false Imprisonment by Neal against the Mayor Sheriffs Citizens and Commonalty of the City of Norwich the Original Writ was directed to the Coroners of the said City And Exception was taken to the Writ because it was not directed to the Sheriffs of the said City but to the Coroners Sed non allocatur for the Sheriffs are parcel of the Corporation as it is to see by the name by which they of Norwich are incorporated And also it hath been adjudged That a Sheriff cannot summon himself and therefore by the Award of the Court the Writ was allowed to be good Trin. 29 Eliz. In the Common Pleas. CXCVIII. Sir John Bromes Case SIr John Brome 33 H. 8. acknowledged a Fine of certain Lands the Kings Silver was entred and the Conusans taken but the Fine was never engrossed and now he who claimed under the Fine came in Court and prayed that the Fine might be engrossed and the Court examined them upon their Oaths to what use the Fine was levied and in the Seisin and Possession of what persons the Lands whereof the Fine was levied had been after the Fine Vpon which Examination it appeared fully to the Court that the Party to whom the Fine was levied was seized after the Fine and suffered a Common Recovery of the Land and that the said Land had been enjoyed according to the said Fine at all such times since c. Whereupon the Court commanded that the Fine be ingrossed Vide Acc. 8 Eliz. Dyer 254. Trin. 29 Eliz. In the Exchequer CXCIX The Lord Dacres and Philip Fines Case THe Case between the Lord Dacres and Fines was Tenant in Tail in remainder upon an Estate for Life of Lands holden in Capite levied a Fine thereof without Licence 3 Leon. 261. and Process issued against the Tenants for Life It was holden by all the Barons that by Plea he should be discharged it was holden That if the Conusor had any other Lands ubicunque in Anglia the Fine for Alienation should be levied upon them But it was moved If the Tenant should be driven to plead it because it appears upon Record that the Conusor was but Tenant in Tail in Remainder and that was in an Office containing such matter which was pleaded by another in another Cause before by which Office it appeared that the Lord Dacres was Tenant in Tail the Remainder in Tail to Philip Fines and now Fines had levied a Fine sur Conusans de droit c. and because the same appeared on Record Manwood awarded that the Process against the Tenants of the Lord Dacres should be stayed Trin. 29 Eliz. CC. Paston and Townsends Case IN Trespass by Paston against Townsend The Defendant pleaded that Tindal was seized in Fee by protestation and dyed seized and the Land descended To which the Plaintiff replyed and said c absque hoc that Tindal was seized in Fee upon which they were at Issue On the part of the Defendant to prove the Issue it was given in Evidence to prove the Issue in his right that the said Tindal long time before his death was seized and aliened and never after was seized It was said that that Evidence did not prove the Issue for the Defendant for the Seisin in Fee intended in the Issue is in the nature of a dying seized and so Periam conceived that the Defendants Plea did not intend any other Seisin a dying seized and the dying seized is taken by Protestation to avoid the doubleness So as the Seisin upon which the Issue is taken ought to be intended a Seisin continuing until the time of the death of Tindal and Seisin at large or a general Seisin at any time during the life of Tindal quod Anderson concessit Trin. 29 Eliz. In the Kings Bench. CCI. Griffith and Prices Case ERror by Griffith against Price upon a Iudgment in Chester in Ejectione firmae and the Error assigned was because the Original bore date 16 April 28 Eliz. and the Plaintiff declared of an Ejectment 17 April 28 Eliz. So as it appeareth that the Action was brought before there was any cause of Action and that was holden to be Error And also Ejectione firmae is not a personal Action and afterwards the Iudgment was Reversed Trin. 30 Eliz. In the Kings Bench. CCII. Harris and Caverleys Case A Iudgment was given in London between Harris and Caverley upon the Statute of 5 E. 6. for buying of Woolls and upon that Error was brought in the Kings Bench quod nota For this Writ of Error upon a Iudgment given in London ought to be sued before the Maior Vide â— N. B. 22 23. And Wray asked Wherefore the Writ of Error was brought here To which it was answered by Dodding Clark that the Record was removed by Certiorari out of the Kings Bench at the Suit of the Defendant to the purpose to bring a Writ of Error quod coram vobis residet And the Error was assigned in this that by the Statute of 18 Eliz. cap. 5. it is enacted that upon every Information that shall be exhibited a special Note shall be made of the Day Month and Year of the exhibiting of the same into any Office or to any Officer who lawfully may receive the same And here upon this Information there is not any such Note according to the said Statute And in truth no Information may be exhibited for there is not any Officer there appointed for that matter for the entry in such Cases in that Court is Talis venit deliberavit hic in Curia Miloni Sands c. But in the Case at Bar the Entry is Talis venit deliberavit in Curia but without shewing to whom But note that the words of the said Statute of 18 Eliz. are in the disjunctive into any Office or to any Officer and that such Information shall not be of Record but from that time forwards and not before wherefore here this Information is not upon Record and then no Iudgment can be given upon it Cook This Information may be well sued in London for the words of the said Statute of 5 E. 6. give Suit in any Court of Record of the King And the Court in London is a Court of Record of the King and every Court of Record hath an Officer to receive Declarations and Pleas and if it be delivered into the Office it is good enough 2. The Offence is laid in the Parish of Bow in Warda de Cheap alibi in Civitate London and so there is not any place laid where the Offence shall be tryed Cook This Alibi is a Nugation Trin. 31 Eliz. In the Kings Bench. CCIII Peuson and Higbeds Case IN Assumpsit the Plaintiff declared that in consideration that he by his Servant had delivered to the Defendant two Bills
the Estate for the life of another by the accession of the Fee-simple and the Queen is in by a new right It was adjudged 29 Eliz. here That where the Queen had the Land of a Fugitive for the life of another and leased the same to another Quam diu in manibus nostris fore contigerit and after the Fee-simple of the Fugitive came to the Queen by his Attainder the same Lease was void King E. 6. gave to his Sister Mary Manerium de B. for her life secundum tenorem effectum Testamenti sive ultimae voluntatis of King Hen. 8. whose Will was that she should have it as long as she remained unmarried she granted a Rent-charge King E. 6. dyed by which the Fee descended to the said Mary being Queen of England and afterwards she married He made it a Quaere if the Rent be not gone Dyer 3 4 Phil. Mary 240. But Bendloes Reports the same Case to be adjudged That the Rent was gone Sir Francis Englefield 1 Eliz. with leave of the Queen went beyond Sea his Licence expired the Queen directed to him a Privy Seal with her Commandment to return which he received but did not return but adhered to the Queens Enemies there upon which the Queen seized his Lands and 8 Eliz. granted a Manor parcel thereof and all profits thereof quam diu in manibus nostris fore contigerit afterwards by Act 14 Eliz. for there was some doubt if the Queen might make Leases grant Copyholds or usual Woodfalls of such Lands or only take the ordinary profits thereof as vesturam terrae it is explained that during the Interest of the Queen she might do ut supra as Tenant for the life of another might do upon which a new Seizure was made for the Queen and a Steward appointed by the Queens Letters Patents who held a Court and took Surrenders in the hand of the Queen and granted Admittances c. And it was resolved by the two Chief Iustices That the two Seizures gave not the Queen any other or better Seisin in the said Manor than she had before by the first Seizure at the Common Law notwithstanding both the said Statutes and so the Courts holden by the Queen void and all Surrenders and Admittances also And so it is adjudged 23 Eliz. Dyer 375. upon which it may be concluded That if by the said Statutes or any of them had had a new right the last Copy had been good notwithstanding the Grant of the Manor before Also for 8 Ass the King grants Custodiam terrae haeredis quam diu in manibus nostris fore contigerit the Heir being a Daughter and after a Son is born now the Grant of the King is void Tenant in tail the Reversion in the King discontinues the Discontinuee is attainted the King seizeth and leaseth for years Tenant in tail is attainted of Treason now the Queen shall avoid her own Lease So if the Disseisor be attainted upon which the Queen seiseth and leaseth and afterwards the Disseisee is attainted And he cited the Case of the Abbot of Colchester 13 Eliz. The Abbot committed Treason and afterwards by the Statute or by Surrender the Abby came to the Crown who leased the Land for years the Abbot is attainted of the said Treason now the King shall be seized by force of the Attainder and shall avoid his Lease As to the Leases made to the Defendant by the Queen one was made after the Statute of 29 Eliz. and the same is not saved by the saving there for the words are of Estates then in esse 1. Such Estate as they had before the making of the Act As to Leases made before they are drowned in the Fee-simple which accrued to the King by the Attainder c. and here by this Statute the Estate of the Queen for the life of another is not saved by the Statute and then the Leases derived out of it are not saved The Queen is not bound by the said Statute to exhibit any Conveyance for she shall not take any Oath according to the Statute and if the Queen be not within the Body of the Act she is not within the saving Now as to the Condition The Statute of 33 H. 8. gives to the Queen Vses Rights Conditions It hath been Objected That such Conditions are intended to be given to the King which are to be performed on the part of the Donee Lessee Grantee Covenantee but not on the part of the Grantor c. For it was in the will of the Grantor if he would perform them or not and a Will cannot be transferred over But as to that it may be answered That a Will by Parliament may be transferred over for Parliamentum omnia potest It hath been Objected If that shall be said the Will of Sir Francis which now is the Will of the Queen it shall be a great prejudice to Francis Englefield the Nephew for now he shall be doubly bridled by his Vncle and by the Queen It hath been Objected That here is a Conditional Condition 1. If the Nephew shall be given to intolerable Vices and it is not added to enable the Queen to take advantage of the Condition that he is otherwise than of good behavior and conversation but the words of the Proviso clear the matter 1. Lest he should be given to intolerable Vices and not if he be given c. So as it is not a Condition to a Condition but a Motive to a Condition And the Statute of 29 Eliz. by which Sir Francis was attainted gives to the King all conditions It hath been objected that in the said Statute of 29 Eliz. is a saving by which Leases made by the Queen are preserved But if that Proviso be well observed it doth not extend to our case 1. That Act extends to make void any Grant Lease c. made by the Queen after the Treason committed c. but that shall be of such force as if the said Act had not been made As to that I say That this Statute doth not add or detract from such Leases but leaves them as it found them for the Statute gives to the Queen the Condition which Condition avoids the said Leases for it avoids the Estate of the Queen out of which the said Leases are derived And although that the Conveyance as to the benefit of Sir Francis or his Nephew be void by the Statute for not Inrollment of them yet it is not utterly void as to the Queen also The Statute of 1 Eliz. Enacts That Leases made by Bishops against the Form of the Statute shall be void Yet they shall not be void against the Bishop himself or against the Lessor Exception hath been taken for that the tender of the King is not found by Office But he needs no Office for the tender is the Act of the Queen her self there she ought not to be informed of it for to what purpose shall the Queen be certified
he could not put in a true Inventory and upon that the Plaintiff prayed a Prohibition surmising that he himself claimed Property in the said Goods and the Ecclesiastical Court would not allow of it and the Trial of the said Goods did belong to the Common Law And a Prohibition was granted Trin. 33 Eliz. In the Kings Bench. CCLXII Mountjoyes and Andrews Case IN Scire Facias upon a Iudgment in Debt The Defendant pleaded that heretofore a Fieri Facias at the Suit of the now Plaintiff issued directed to the Sheriff of Leiceâ—â—er by force of which the said Sheriff took divers Sheep of the Defendant Execution adhuc doth detain them Retorn of Writ It was holden by the Court a good Plea although he doth not say that the Writ was returned for the Execution is lawful notwithstanding that and the Plaintiff hath remedy against the Sheriff CCLXIII Vide this Case reported by Cook 1 Part by the name of Capells Case THe Case between Hunt and Gately in the Exchequer Chamber was now argued by Fenne That the Rent granted by him in the Remainder upon an Estate tail is good and shall bind the Land after the Estate tail determined notwithstanding the common Recovery suffered by the Tenant in tail in possession Before the Statute of Westm 2. of Donis Condic c. no Remainder could be limited upon an Estate tail for that which remained in the Donor was but a possibility and therefore then a Formedon in Remainder did not lye But the said Statute which provided a Formedon in the Descender provided also by Equity a Formedon in the Remainder for a Formedon in the Reverter as appeareth by the said Statute was in use in Cancellaria And now here in our case is a Remainder lawfully vested in the Grantor which he may dispose of as he sees good and therefore when he grants a Rent-charge out of it the same is a thing vested in the Grantee and by no subsequent act can be divested and although the Estate which was charged be now charged by the Recovery yet it is the same Land which was charged and therefore the charge shall continue as if a gift in tail be rendring Rent and the Donee levieth a Fine yet the Rent remaineth and the Donor shall distrain 48 E. 3. 3 9. So here If after the grant of this Rent Tenant in tail in possession levies a Fine by which the Remainder which was charged is discontinued and afterwards the Conusor dyes without Issue the Grantee shall distrain upon such possession which passed by the Fine As if A. lease to B. for life and afterwards grants a Rent out of the same Land to C. B. aliens in Fee and dyes although that A. cannot re-enter but suffers the said torcious Estate gained de novo by wrong to continue yet B upon such possession shall distrain for the Rent for it is the same Land which was charged and by Law a thing in abeyance may be charged As if a Parson grant a Rent-charge to begin after his death and the Patron and Ordinary confirm it it shall bind although the Grant doth not take effect in the life of the Grantor but when the Freehold is in abeyance So if the Patron and Ordinary in the time of Vacation grant a Rent-charge out of the Parsonage the same is good and shall bind the Successor and yet at the time of the Grant the Freehold of the thing granted is in abeyance Vide 5 E. 6. Dyer 69. That a Rent which is not in esse shall be bound by a Iudgment 22 E. 3. 19. 5 E. 3. Fitz. Dower 343. By Bracton Jus concerning a real thing is threefold 1. Jus terrae scil the Ownership of the Land. 2. Jus in terra as a Rent Common c. 3. Jus ad terram scil Right permanent And by this Common Recovery in our case Jus terrae shall be bound but not Jus in terra And he said That if Land be given to A. in tail the Remainder to the Kings Villain in Fee and before any claim by the King A. suffers a common Recovery and dyes without Issue this Recovery shall not bind the King. And as to the Case of 26 H. 8. 2. which hath been Objected against the falsifying of the Recovery where a Parson made a Lease for years and afterwards in a Quare Impedit brought against him and the Patron they pleaded faintly to the intent to make the Lessee lose his Term now such a Lessee cannot falsifie in such case the Parson by another way might have defeated the Lease as by Resignation but in our case the Grantor of this Rent by no way might defeat his Grant And he said a common recovery did not bind Dower therefore nor this rent And if Tenant in tail in possession grants such a rent and after suffers a common recovery the rent shall stand why not also in the case of a remainder for upon them both as well the remainder as the possession the recovery operatur And recoveries shall always bind the possession and no farther and shall not disprove the right but the possession And the recovery by it self doth not bind the possession but in respect of the Voucher without which no recovery shall bar and that in respect of the recompence which the Law presumes c. which recompence cannot extend to this Rent-charge and then there is no reason that he to whom it was granted should be prejudiced by this recovery and always in case of recompence the Law is very precise As if I grant unto you an Annuity of 30 l. per Annum until you be presented to a competent Benefice a litigious Benefice is not a recompence intended nor shall determine the Annuity nor a Benefice of 15 l. If two make an exchange for their Lives and one of them dyeth the exchange is not determined but the Heir of him who dyeth shall enter and retain the Land as long as the other shall live Ad quod Manwod Chief Baron subsidebat And there is a great difference between a Lease for years and a Rent-charge for at the Common Law upon such Recovery the Lessee for years was bound contrary of a Rent-charge for it was unreasonable that a thing not demanded by the recovery should be bound by it especially because that the Land rendred in value shall not be charged with the rent Walmesley Serjeant contrary A remainder upon an Estate tail is debile fundamentum and cannot uphold with assurance a Rent-charge against a common recovery and it cannot be found in any Book but in 5 E. 4. 2. That a remainder upon an Estate-tail expectant may be charged for an Estate-tail is in Law presumed to be perpetual and therefore what Lands are entailed by Fee the words of the Fine are Sibi haeredibus de Corpore suo exeuntibus imperpetuum And it is the common learning in our Books that every Estate of Inheritance be it Fee-simple or Fee-tail shall be
was given accordingly Vide Litt. 25. that Trespass lyeth but he doth not speak of vi armis See for that 12 E. 4. 8. by Fairfax and Genny 22 E. 4. 5. CCLXXII Mich. 30 Eliz. In the Common Pleas. IN Debt upon an Obligation the Defendant said that the Obligation was endorced with a Condition for the performance of Covenants contained in an Indenture c. The Plaintiff assigned the Breach in this that the Defendant himself by the same Indenture that the said House was discharged of all former Estates and Incumbrances c. And further shewed that the Defendant had made a former Lease of the said House to one A. B. in the County of Warwick to which the Defendant said that tempore dimissionis he was within age upon which they were at Issue and it was tryed in the County of Warwick where it ought to be tryed where the Writ was brought But the whole Court held the contrary Trial. that the tryal was well enough as if in an Assise the Tenant pleadeth a Release of the Plaintiff in a foreign County to which the Plaintiff pleads that at the time of the Release he was within age upon which they are at Issue the Issue shall be tryed in the County where the Release is pleaded to be made and not where the Writ is brought CCLXXIII Temps Roign Eliz. ACtion upon the Case was brought for stopping a way The Plaintiff declared that the Duke of Suffolk was seized of a House in D. and let the same to the Plaintiff for life and that the said Duke and all those whose Estate c. had used time out of mind c. to have a way over the Land of the Defendant to the Park of D. to carry and re-carry necessary wood for the said House from the said Park to the said House And further declared That the Defendant Obstupavit viam It was moved that upon the matter no Action upon the Case did lye but an Assise because that the Freehold of the House is in the Plaintiff and also the Freehold of the Land over which c. is in the Defendant But if the Plaintiff had had but an Estate for years then an Action upon the Case would lye and not an Assise And it is not material if the Plaintiff have but an Estate for years in the Park Qâ—od fuit concestum per totam Curiam It was holden also that this word Obstupavit was good enough without any more scil without shewing any special matter of disturbance Nusance Obstupavit as the erection of some Gate Hedge Ditch c. for Obstupavit implyeth a Nusance continued and not a personal disturbance as Forestaller or saying upon the Land c. that he shall not go over or use that way But as to a local and real Nusance the word Obstupavit amounts to Obstruxit And although in the Declaration is set down the day and year of the stopping yet it shall not be intended that it continued but the same day for the words of the Declaration are further That he was disturbed in the way and yet is and so the continuance of the disturbance is alledged and of that Opinion was the whole Court. Action upon the Câ—se Prescription Leonard Prothonotary He hath declared of a Prescription habere viam tam pedestrem quam equestrem pro omnibus omniâ—odis cariagiis and by that Prescription he cannot have a Cart-way for every Prescription is stricti juris Dyer That is well observed and I conceive that the Law is so and therefore it is good to prescribe habere viam pro omnibus cariagus without speaking of Horse or Foot-way 16 Eliz. In the Common Pleas. CCLXXIV The Archbishop of Yorks Case Toll THe King granted to the Archbishop of York the Toll of Corn sold in the Market of Rippon And afterwards the King granted to the Mayor and Citizens of York to be discharged of Toll through all the Realm and afterwards the Archbishop exchanged his Manor of Rippon with the King for another Manor It was moved If now the Citizens of York should be discharged of Toll within the Mannor of Rippon Dyer said that they are not discharged of Toll for the Grant to the Archbishop was eigne to the Grant made to the Citizens and by the exchange the King had new Right And when the King grants over the Manor of Rippon the Grantee shall have the Toll notwithstanding the Grant made to the Citizens for the Grant made to them was void as to discharge them of Toll at Rippon and the Grant of the King to the Citizens shall not take effect after the exchange for the Grant was void ab initio But if the Grant of the King to the Archbishop had been made for life then the Grant of the King made to the Citizens should take effect after the Estate for life determined And the better Opinion was That Toll should be paid Hil. 16 Eliz. In the Common Pleas. CCLXXV William Wallers Case WIlliam Waller seized in Fee 26 H. 8. made a Feoffment to the use of his last Will and by that devised his Manor of Russels to Rich. Waller his Son in Tail and dyed Rich. Waller entred and was seized by force of the Statute 27 H. 8. and afterwards 2 E. 6. by his Deed in consideration of a Marriage to be had between him and one Eliz. A. enfeoffed Worsley and others to the use of himself and the said Eliz. for their lives and after the use of the said Rich. Waller and his Heirs and dyed Eliz. took to Wife Clavell they both by Fine granted the said Mannor to Tho. Lamb Habend ' eidem Thomae haeredibus suis tota vita ipsius Eliz. Tho. Lamb entred and dyed seized Tho. his Son and Heir entred against whom Thomas Waller Son and Heir of Rich. brought a Formedon the said Eliz. being alive the Tenant said he is within age and prayed that the paroll might demur but Non allocatur for he was but as an Occupant during the life of Eliz. CCLXXVI Residuum of Sir Francis Englefields Case THe Case of Sir Francis Englefield was argued by Popham and he said That this Condition was not such a private Condition or so running in privity but that it might be transferred by 33 H. 8. or 29 Eliz. to the Queen for although that the consideration which moved and induced Sir Francis to create the Condition be private and particular yet that notwithstanding the Condition it self is general for the private cause of the Condition doth not make the Condition private but as in other Cases and he put the Cases before of Ransom But if the Condition had been conceived in these Terms scil If my Nephew shall be given to intollerable Vices then if I tender c. there it had been otherwise Vide the Statute of 33 H. 8. cap. 20. by which it is enacted That if any Subject is attainted of High Treason by the course of the
of the Conusee it might now be Inrolled It was the Opinion of all the Iustices That upon the request aforesaid it might be Inrolled like as it was of a Conusance of a Fine taken before a Iudge which may be removed out of his hands by a Certiorari although it be not a Record before that it be certified in the speaking of that Case It was made a question whether the Court of Chancery might help a man who purchased Lands for valuable Consideration where there wanted the words Heirs in the Deed of Purchase or not but the point was not resolved But in that Case it was agreed by all the Iustices That after a Fine is levied of Land Chancery Attornment that the Chancery may compel the Tenant of the Land to Attorn And so where an Annuity or Rent is granted to one for life or in Fee and the Deed is Executed Sealed and Delivered but no Seisin is given to the party of the Rent or Annuity the Court of Chancery may decree a Seisin of the Rent to be given and the Rent to be paid to the Grantee and that was said to have been often times decreed in the said Court of Chancery CCLXXXIV Mich. 30 Eliz. In the Common Pleas. Intrusion Trespass NOte by Anderson Chief Iustice If one intrude upon the Possession of the King and another man entreth upon him that he shall not have an Action of Trespass for that Entry for that he who is to have and maintain Trespass ought to have a Possession But in such Case he hath not a Possession for every Intruder shall answer to the King for his whole time and every Intrusion supposeth the Possession to be in the King which all the other Iustices agreed except Periam who doubted of it And Rhodes Iustice said and vouched 19 E. 4. to be that he cannot in such Case say in an Action of Trespass Quare Clausum suum fregit CCLXXXV Mich. 29 Eliz. In the Common Pleas. NOte It was holden by Popham Chief Iustice Remainder and so said by him to have been resolved upon a Special Verdict in the County of Somerset 20 Eliz. That where a Lease was made unto Husband and Wife for their Lives the remainder to the Heirs of the Survivor of them that the same was a good remainder notwithstanding the incertainty and that in that case after the death of the Wife he should have Iudgment to recover the Land. But if a man be possessed of a term for 20 years in the right of his Wife and he maketh a Lease thereof for 10 rendring rent to him his Executors and Assigns and dyeth that in such case though the Wife surviveth yet he shall not have the rent because that she cometh in paramount the Lease But if a man be possessed of a term in the right of his Wife Mortgage and Mortgageth for payment of a certain Sum of Money at a day certain and before the day the Wife dyeth and the Husband payeth the Money at the day and then dyeth whether his Executors or the Administrators of the Wife should have the term was not then resolved Ideo Quaere that Case Trin. 32 Eliz. In the Exchequer CCLXXXVI Bartase and Hinds Case NOte Manwood Chief Baron gave it for a general Rule for all Counsellors at Law That they did not advise any Collectors of Subsidies or Fifteens to exhibit Bills in the Exchequer Chamber for the Non-payment of Subsidies c. for such Bills should not be allowed hereafter because they had remedy by Distress Also it was holden That if any be assessed for the Fifteen which he ought to pay or if two Towns are to pay together and the one Town be taxed more than it ought to be or had been accustomed those which are grieved by such Sesment may have a Commission out of the Exchequer which is called Ad aequaliter taxand ' and that was put in ure in a Case between Bartase and Hind where one of them was Lord of the Town of Little Marloe and the other of Hedford And it was also holden That Fifteens are to be levied of Goods and Chattels properly and one Township sometimes is richer than another and therefore it is not reason that they pay their Fifteen always according to the same proportion But by Clark Baron where the Custom hath been that the Fifteen should be taxed according to the quantity of Acres there the Rate and Purport shall be always one whosoever holds the Land and as to the Commission Ad aequaliter taxand ' Manwood and Fanshaw said That they could shew above twenty Presidents of it Mich. 17 18 Eliz. In the Kings Bench. CCLXXXVII Barnard and Tussers Case Debt BArnard recovered in a Scire Facias upon a Recognizance against Tusser and afterwards brought an Action of Debt upon the same Recovery and it was adjudged maintainable notwithstanding that it was Objected That the Iudgment in such Scire Facias is not to recover Debt but to have Execution of the Iudgment And by Wray Chief Iustice If in a Scire Facias to have Execution of an Annuity the Plaintiff hath Iudgment upon such Iudgment he shall have an Action of Debt Mich. 17 18 Eliz. In the Kings Bench. CCLXXXVIII The Earl of Arundel and Bradstocks Case THe Case was The Earl of Arundel let Lands to Bradstock for years upon condition that the Lessee should not do any Act by which his Goods and Chattels might be forfeited Bradstock committed Felony and before any Attainder he obtained his Charter of Pardon It was holden in this case That the Earl might lawfully enter but if the words of the Condition had been Whereby the Goods ought to be forfeited chen it had been otherwise for before Attainder they ought not to be forfeited Mich. 17 18 Eliz. In the Kings Bench. CCLXXXIX Taylors Case Outlawry How avoided by Plea in Person TAylor was Outlawed in Debt and a Supersedeas of Record was delivered to the Sheriff before the awarding of the Exigent It was holden that the party should avoid the same by Plea then it was moved if the Plea should be pleaded by Attorney or in Person To which it was said by Manwood That where matter in fait is pleaded in avoidance of an Outlawry it ought to be pleaded in Person but matter of Record by Attorney And Ford Prothonotary said It was so agreed in Sir Thomas Chamberlains Case in 7 Eliz. and so it was adjudged in this Case CCXC. Mich. 17 18 Eliz. In the Kings Bench. THe Case was The Prior of Norwich made a Lease for life by Indenture by which the Lessee covenanted to find Victuals to the Cellerer at all times when the Cellerer came thither to hold Court the Priory was dissolved and the Possessions given to the Dean and Chapter newly erected It was holden in this case That the Lessee should perform that covenant to him who supplyed the Office of Cellerer scil the Steward And
and a Writ de novo awarded CCXCVIII A. Is bound to B. upon Condition to stand to the Arbitrement of certain persons who award that B shall make a Release to A. of all Actions Debts Duties and Demands at the request of A. and afterwards A. comes to B. and requires him to make him a Release who said to him That he was unlearned and that he would go to one to make it and the next day after the request he seals and delivers it to A. who accepts of it It was holden by Windham and Mead That notwithstanding that Acceptance the Obligation was forfeited for they said That presently after request he ought to have done it in the speediest manner that might be Vide acc ' 15 E. 4. 31. Vide also Wottons Case 16 Eliz. Dyer 338. Mich. 26 Eliz. In the Common Pleas. CCXCXI The Dean and Chapter of Christ Church and Parotts Case Grants of the King. NOte in the Common Pleas in a Case between the Dean and Chapter of Christ Church in Oxford and Parott It was holden by the Iustices that if the King grants Lands unto a Corporation by another name than that which they were named before yet the Land shall pass and the Letters Patents shall be to them as a new Incorporation c. Mich. 19 Eliz. In the Common Pleas. CCC Beechers Case Jurors BEecher being a Gentleman of the Middle-Temple was Retorned in an Attaint and before the Retorn of the Pannel he became a Minister of the Church and now at the day of the Retorn he appeared and prayed to be discharged according to the Priviledge of those of the Ministry But the Court would not allow of his prayer because that at the time of the Pannel made he was a Lay-man Wherefore he was sworn one of the Iury. Hil. 19 Eliz. In the Kings Bench. CCCI. Vernon and Sir Thomas Staveleys Case TEnant in Tail made a Lease for the life of the Lessee according to the Statute of 32 H. 8. Discontinuance and by Wray and Gawdy Iustices the same was not a Discontinuance But if Tenant in Tail levyeth a Fine which bindeth his Issue by the Statute of 4 H. 7. 32 H. 8. that same is a Discontinuance Look upon the Statute of Leases and of Fines the words in the former are scil Such Fines shall be good and effectual in the Law but in the other scil Such Fines shall be a bar against the Conusor and his Heirs And if Tenant in Tail after such a Fine dyeth without Issue the Donor cannot enter but is put to his Formedon And as to the principal Case Dyer agreed in opinion with Wray and Gawdy Trin. 28 Eliz. Rot. 1027. CCCII Milborne and the Inhabitants of Dunmowes Case MIlborne brought an Action upon the Statute of Winchester against the Inhabitants within the Hundred of Dunmow in the County of Essex It was found by Special Verdict Upon Statute of Hue and Cry. That the Plaintiff was robbed the 23 of April inter horam secundam Matutinam tempore Nocturno ante Lucem ejusdem diei and the Opinion of the Court was clear That the Plaintiff should be barred for the said Statute provides for ordinary Travel as in the case of Archpole who came to his Inn after Sun-set ante Noctem in tempore diurno which is an usual time for Travellers to come to their Inn but the Law doth not receive any in protection of this Statute which travel in extraordinary hours for it is the folly of the traveller to take his journey so out of season and the inhabitants are not bound to leave their houses and attend the high-ways tempore Nocturno And another reason was alledged by the Iustices because that the said Statute appoints Watch to be kept in the time of night à festo Assensionis usque festum Sancti Mich. and this Robbery was done the 23 of April so out of the said time And afterwards Iudgment was given against the Plaintiff CCCIII. Hil. 29 Eliz. In the Common Pleas. Devises SErjeant Fenner demanded the Opinion of the Court upon this Case A. devised Lands to his Wife for life and afterwards to B. his Son and his Heirs when he should come to the age of 24 years and if his Wife dyed before that his said Son should attain to the said age of 24 years that then J S. should have the said Lands until the said age of the said Son A dyed J. S. dyed the Wife dyed the Son being within the age of 24 years If the Executors of J. S. should have the Lands after the death of J. S. until the said age of the Son was the question Anderson and Periam conceived that he should not for this Interest limited by the Will to J. S. was but a possibility which was never vested in him and therefore could not by any means come to his Executors Rhodes and Windham doubted of it And Fenner put the Case 12 E. 2. Fitz. Condition 9. where Land is Mortgaged to J. S. upon payment of Money to the said J. S. or his Heirs such a day and before the said day J. S. by his Will deviseth That if the Mortgagor pay the Money that then A. B. shall have them that this Devise of that possibility is good which Case all the Iustices denied And Windham put the Case between Welden and Elkington 20 Eliz. Plowd 519. where Lessee for years devised his term to his Wife for so many of the years of the said term as she should live and if she dyed within the term that then his Son Francis should have the residue of the years not incurred Francis dyed intestate the Wife dyed within the term the Administrator of Francis had the residue of the term and yet nothing was in Francis the intestate but a possibility A Lease was made to one Hayward his Wife and one of his Children Habendum to Hayward for 99 years if he so long live and if he dye within the said term that then the said Wife should have the said term for so many of the years as should be to come at the time of the death of her Husband and if she dyed also within the said term that then the Child party to the Demise should have the same for so many of the years of the said term as should be not expired at the time of the death of the Wife And the case of Cicell was cited Dyer 8 Eliz. 253. A Lease was made to William Cecill pro termino 41 annorum si tam diu vixerit Et si obierit infra praedictum terminum extunc Eliz. uxor praedict Will Cicell habebit tenebit omnia singula praemissa pro residuo termini praedict incompleti si tam diu vixerit Et si praedict Eliz. obierit infra terminum praedict Tunc Willielmus Cicell the Son c. shall have and hold it pro residuo termini praedict completi And it was holden by Catlin and
Dyer that these Remainders were void for the term is determinable upon the death of William Cecill the Father and the residue of the said term cannot remain And by the Lord Anderson the Remainders of the term limited ut supra are utterly void for every Remainder ought to be certain but here is no certainty for it may be that the first possessioner of the term may live longer so as he in the Remainder cannot know what he shall have And such was also the Opinion of Rhodes And he put the Case between Gravenor and Parker 3 4 Phil. Ma. Dyer 150. A Lease was made to A. for life by Indenture Et provisum fuit by the same Indenture That if the Lessee dyed within the term of sixty years then next ensuing that then his Executors should have in right of the Lessee so many of the years as should amount to the number of sixty years to be accounted from the date of the Indenture and it was holden That that secondary Interest to the Executors was void and that the words concerning the same did sound in Covenant CCCIV. Trin. 31 Eliz. In the Common Pleas. THe Case was A made B. and C. his Executors Executors Action they took upon them the charge of the Administration and afterwards B. dyed and now an Action of Debt was brought against the surviving Executor and the Executor of the other Executor and the Writ was abated because against the surviving Executor it ought only to be brought Pasc 30 Eliz. In the Common Pleas. CCCV Smith and Babbs Case SMith brough an Action upon the Case against Babb for stopping of Water incessanter decurrent by his Land Action upon the Case Stopping of Water by which his Land was drowned and his Grass rotted Exception was taken to it because it is not alledged That the Water had so run time out of mind Gawdy Iustice If the Water hath run there but for one year if the Defendant hath diverted it so as he hath drowned the Plaintiffs Land the Action will lye well enough Trin. 26 Eliz. In the Common Pleas. CCCVI Basil Johnsons Case BAsil Johnson one of the Clerks of the Chancery Priviledge of a Clerk in Court. was impleaded in the Common Pleas by Bill of Priviledge by an Attorney of the said Court and now Basil came into Court and shewed that he is one of the Clerks ut supra and prayed his Priviledge but the whole Court was against it because the Plaintiff is as well priviledged in this Court as the Defendant is in the Chancery and was first interessed in his Priviledge by the bringing of his Writ but the Defendant was not entituled to his Priviledge before the Arrest and afterwards by the award of the Court the said Basil was ousted of his Priviledge 32 Eliz. In the Common Pleas. CCCVII Collier and Colliers Case Prohibition BEtween Collier and Collier the Case was That the Plaintiff was Sued for Incontinence in the Spiritual Court and there they would have him Answer upon his Oath if he ever had Carnall Knowledge of such a Woman upon which he prayed a Prohibition Vide inde F. N. B. 41. a. Register 36. Et nemo tenetur seipsum prodere But the Court would advise of it 32 Eliz. In the Common Pleas. CCCVIII Mountney and Andrews Case Execution IN a Scire Facias by Mountney against Andrews of Grays-Inn upon a Iudgment in Debt the Defendant pleaded That heretofore a Fieri Facias at the Suit of the now Plaintiff issued to the Sheriff of Leicester by force of which the said Sheriff took divers Sheep of the Defendants and that as yet he doth detain and keep them It was holden by the whole Court to be a good Plea although he did not say That the Writ was retorned for the Execution is lawful notwithstanding that and the Plaintiff hath his remedy against the Sheriff Hil. 29 Eliz. In the Common Pleas. CCCIX Dawbney and Gores Case BEtween Dawbney Plaintiff and Gore and Gon Defendants in a Writ of Disceit In Arrest of Iudgment it was moved That two are accountable to one and the one of them accounts without the other that that is not any account and then no account can be assigned in that As to that it was said by Popham Attorney-General That notwithstanding that one be not compellable to account without his Companion and by way of Action of Account the one shall not account without the other unless the Process be determined against him and then he who appeareth hath accounted and the other against whom the Process is determined hath purchased his Charter of Pardon the account made by his Companion shall bind him Vide inde 41 E. 3. 13. Yet if one of the Accomptants will account willingly the same is a good account And in account if one confesseth and the other pleadeth in bar the confession of the one shall bind the other and such was the Opinion of the Court. Another matter was moved in this case because that one Tedcastell and Swinnerton being accountable to the said Gores and Dawbney they have accounted to Dawbney only and he alone hath accepted of the account and that is not any account therefore no desceit but the Action of Account doth remain To which it was answered by Popham That the same was a good account being accepted by Dawbney and should bind the Gores for an Account is a personal thing as an Obligation which may be released by one of the Obligees Vide 14 E. 4. 2. Where one was accountable to two and the one of them did assign Auditors before whom the Accountant is found in Arrearages and thereupon both of them brought Debt upon Account and well And so none of the Exceptions were allowed by the Court. Mich. 33 Eliz. In the Common Pleas. CCCX Trivilians Case THo Trivilian Tenant in tail of White Acre Black Acre and Green Acre leased White Acre for years to B. and Black Acre to C. and afterwards made a Feoffment of all three Acres to F. and others by Deed in which Deed was comprised a Letter of Attorney in which he ordained Harris and three others his Attorneys joyntly and severally to enter in the Premises and every part thereof in the name of the whole and possession in his name to receive and afterwards to make Livery c with other ordinary and usual words and it was expressed in the said Deed of Feoffment that the Feoffment should be to the intent to perform his last Will and afterwards one of the said Attorneys entred into the Land demised for life and expelled the Tenant for life and made Livery and Seisin to the Feoffees accordingly and afterwards the said Harris another of the Attorneys scil one of the Ioynt Lessees being one of the three Attorneys made Livery of the Land demised for years and after the Feoffor in the time of Queen Eliz. by his last Will devised That the Feoffees should be seized of the
Bayliff of his Lord could not do better than admonish the said Bayliff of his duty for it concerned the Honour of his Master and also his Inheritance in the said Liberty But if the said Townsend had been a meer stranger to the said Earl so as no such privity had been betwixt them the same had been clearly Maintenance in Townsend as it was lately adjudged in that Court in the case of one Gifford where the parties being at Issue and a Venire Facias to the Sheriff to retorn a Iury a stranger wrote to one of the Iurors who was retorned in the Pannel praying him to appear at the day and to do in that cause according to his Conscience and the same was adjudged Maintenance And afterwards upon full hearing of the cause the said Townsend by the Sentence of the Court was acquitted of any Maintenance with great allowance and approbation of many Lords of the Counsel there present Bromley Cancellario tantum exclamante CCCXXVII Mich. 15 16 Eliz. In the Common Pleas. IN a Writ of Partition the Defendant prayed in Aid the Plaintiff counterpleaded the Aid upon which Issue was joyned and found for the Plaintiff It was the Opinion of the Court That it was peremptory for the Defendant And the Plaintiff shall have the Partition scil Quod fiat Partitio and the reason thereof is for the delay of the Plaintiff and for the vexation of the Country who are to try it otherwise it had been if it had been adjudged against the Defendant upon a Demurrer CCCXXVIII Mich. 21 Eliz. In the Kings Bench. IN a Formedon of a Manor the Tenant pleaded Ioynt-tenancy by Fine with J. S. The Demandant averred the Tenant sole Tenant as the Writ supposed and upon that Issue was joyned and found for the demandant Vpon which a Writ of Error was brought and Error assigned in this That whereas upon Ioyntenancy pleaded by Fine the Writ ought to abate without any Averment by the Demandant against it the Averment hath been received against the Law And by Southcote at the common Law If the Tenant plead Ioyntenancy by Deed the Writ should abate without any Averment but that was remedied by the Statute of 34 E. 1. but Ioyntenancy by Fine doth remain as it was by the common Law for he hath punishment enough in that because by that Plea if it be false he hath by way of conclusion given away the Moiety of the Land in demand to him with whom he hath pleaded Ioyntenancy and the Law doth not intend that he will so slightly depart with his Land for the abatement of a Writ Else in a Praecipe quod reddat the Tenant confesseth himself to be Villain to a Stranger the Writ shall abate without any Averment of Frank-estate for the Law intends that the Tenant will not enthrawl himself without cause Wray to the same intent But the Demandant may confess and avoid the Fine as to say That he who levied the Fine was his Disseisor upon whom he hath before entred c. And if Tenant in Fee-simple be impleaded and he saith he is Tenant for life the Remainder over to A. in Fee and prayeth in Aid of A. the Demandant shall not take Averment That the Tenant the day of the Writ brought was seized in Fee. Note That in this Fine Ioyntenancy was pleaded but for parcel and it was holden by â—ray and Southcote That the whole Writ should abate as in a Writ against many the misnosmer of the one shall abate the whole Writ against all the Defendants and so where the Demandant enters into parcel of the Land in demand if the Land in demand be one entire thing it shall abate the Writ in all In this Case the Demandant ought to have in his Writ a Foreprise of the Land parcel of the Land in demand whereof the Ioynt-tenancy by Fine is pleaded for this dismembring of the Manor and destruction of the Land whereof the Ioyntenancy is pleaded is peravail and beneath the Gift whereof the Formedon is conceived and therefore in respect of the title of the Demandant it remains in right parcel of the Manor and therefore it ought to be demanded accordingly with a Foreprise But if A. gives to B a Manor except 13 Acres in Tail there if after upon any Discontinuance the Issue in Tail is to have a Formedon in such Case there needs not any Foreprise for the said 10 Acres were never severed from the Manor upon the Gift But if Land in demand be several as 20 Acres but two this Foreprise is not good Vide Temps E. 1. Fitz. Br. 866. Praecipe unam bovat ' terrae except a Selion and the Writ was abated for every demand ought to be certain but a Selion is a parcel of Land uncertain as to the quantity in some places it is an Acre in some more and in some less Another point was That because that the Tenant hath admitted and accepted this Averment scil Sole Tenant as the Writ supposeth if the Court notwithstanding the admittance of the Tenant ought without exception of the party ex Officio abate the Writ And Wray conceived that it might for it is a possitive Law As if a Woman bring an Appeal of Murder upon the death of her Brother and the Defendant doth admit it without Challenge or Exception yet the Court shall abate the Appeal 10 E. 4. 7. And Vide the principal Case there Non ideo puniatur Dominus And if an Action be brought against an Hostler upon the common Custom of the Realm and in the Writ he is not named Common Hostler and the Defendant doth accept of such a Writ without any Exception unto it yet the Court shall abate the Writ ex Officio Vide 38 H. 6. 30. CCCXXIX Mich. 21 Eliz. In the Kings Bench. NOte this Case A. makes a Feoffment in Fee to B. and binds himself only to warranty without more B. is impleaded and voucheth A. who enters into the Warranty and loseth so as Iudgment is given against B. and also to recover in value against A. who before Execution dyeth It was the opinion of the Court that B. should have Execution in value against the Heir of A. CCCXXX Mich. 21 Eliz. In the Common Pleas. A. Seized of Lands in the right of his Wife for the term of the life of the Wife made a Feoffment in Fee to the use of his said Wife for her life In that case the wife is remitted and it is not like Townsends Case Plowd Com. 111. for in that case the Entry of the Wife was not congeable for she was Tenant in tail which Estate was discontinued by the Feoffment of her Husband Periam Iustice cited Siâ—enhams case Baron seized in the right of his Wife for the term of the life of the Wife They both surrendred and took back the Land to them and a third person And it was holden that the Wife was not presently remitted but after the death of her Husband
she might disagree CCCXXXI Mich. 21 Eliz. In the Common Pleas. A. B. and C. three Brothers A. hath issue and dyeth the middle Brother Purchaseth Land and deviseth the same to his Son in Tail and if he die without Issue that the Land shall remain to the King and Lineage of the Father sc of the middle Brother and if the Son of the eldest Son or the youngest Brother should have the Land was the Question and it was the opinion of the Lord Dyer That the Son of the eldest Brother should have it CCCXXXII Mich. 21 Eliz. In the Common Pleas. A Lease for life was made to B the Remainder to C. and D. in Tail It was holden that in this case C. and D. cannot disagree to that Remainder without matter of Record for they are Tenants in Common but if the Remainder had been limited to them in Fee so as they took joyntly it had been otherwise for then by the disagreement of the one the other shall take the whole Land. Mich. 32 Eliz. In the Kings Bench. CCCXXXIII Waite and Coopers Case IN Ejectione firmae between Waite and Cooper It was found by Verdict That Cranmer late Archbishop of Canterbury was seized of the Manor and Borough of Southwark in the right of his Bishoprick and that the Prior of Morton was seized of the House in which the Ejectment is supposed and held the same of the said Archbishop as of his said Manor and Borough after which 30 H. 8. the said Archbishop gave to the King the said Manor and Borough with confirmation of the Dean and Chapter and that the same year the said Prior surrendred by which the said King was seized as well of the said Manor and Borough as of the said House and afterwards the King by his Letters Patents gave the said House and other Lands in Middlesex and Essex to Curson and Pope in Fee tenend in Libero Burgagio per fidelitatem tantum non in Capite pro omnibus serviciis demandis And afterwards King Edw. 6. gave the said Manor and Borough to the Mayor and Commonalty of London Curson and Pope covey the said House to Welsh in Fee who dyed without Heir All the Question was What Tenure is here reserved upon the Words and Grant made by King Hen. 8. to Curson and Pope It was said It could not be a Tenure in Burgage because here is not any Rent reserved which see by Littleton 162 163 164. And the Lord Anderson at the first very strongly insisted upon that Another matter was because here is reserved for all the Lands and Tenements but one Tenure so that if the Court should adjudge the Tenure reserved to be Burgage then Lands at the Common Law out of Boroughs should be holden in Burgage Also a Tenure in Burgage cannot be created without these words ut de Burgagio And to that purpose Shute Iustice agreed Vide Br. Tenures 94. Mich. 29 Eliz. In the Kings Bench. CCCXXXIV Fullers Case NOte It is holden by the whole Court in Fullers case That if one give 300 l. to another to have an Annuity of 50 l. assured to him for 100 years if he his Wife and four of his Children so long shall live That this is not within the Statute of Vsury So if there had not been any Condition but care is to be taken that there be no Communication of borrowing of any Money before Trin. 30 Eliz. In the Kings Bench. CCCXXXV Goore and Winkfields Case 3 Leon. 223. DEbt upon an Obligation by Goore against Winkfield the Obligation was written in this Form Know all by these Presents That I H. Winkfield am bound to William Goore in the Sum of c. for the payment of which Sum I give full power and authority to the said Goore to keep the said Sum upon the Profits of the Bayliwick of Swinstall from year to year until the same be paid To which the Defendant pleaded That the Plaintiff had levied parcel of the said Sum c. and did not shew how much and therefore the pleading was holden not good And it was clearly agreed by the whole Court That the Plaintiff was at Liberty either to bring his Action upon the said Obligation or to levy the Debt according to the Clause aforesaid Pasc 26 Eliz. In the Kings Bench. CCCXXXVI Powley and Siers Case POwley brought Debt against Sier Executor of the Will of one A. The Defendant demanded Iudgment of the Writ For he said That one B. was Executor of the said A. and that the said B. constituted the said Defendant his Executor so as the Writ ought to have been brought against the Defendant as Executor of an Executor and not as immediate Executor of the said A. The Plaintiff replyed That the said B. before any probate of the Will or any Administration dyed and so maintained his Writ upon which the Defendant demurred Wray was for the Writ for although here be not any Probate of the Will of A. or any other Administration yet when B. makes his Will and the Defendant his Executor it is an acceptation in Law of the Administration and Execution of the first Will. Gawdy and Ayliff Iustices that the Writ was not good Vide 23 Eliz. Dyer 372. Mich. 19 Eliz. In the Kings Bench. CCCXXXVII Taylors Case TAylor was Outlawed in Debt where a Supersedeas upon Record was delivered to the Sheriff before the award of the Exigent It was holden that the Party should avoid the same by Plea Then it was moved If the Plea should be pleaded by Attorney or in Person To which it was said by the Iustices That where matter in fact is pleaded in avoiding of an Outlawry he ought to plead it in Person but matter of Record by Attorney And so Ford Prothonotary said it was agreed in the Case of Sir Thomas Chamberlain 7 Eliz. and so it ought to be in the principal Case here CCCXXXVIII Mich. 18 Eliz. In the Kings Bench. NOte It was agreed for Law in the Kings Bench if Lessee for years grant all his Estate and Interest to A rendring rent by Indenture and for default of payment a re-entry And the Grantor demandeth the rent and A. demands an Acquittance but the Lessee for years refuseth in such case A. may refuse to pay such rent for the rent is to be paid in this nature without an Acquittance but contrary if Lessee for years had leased parcel of his Estate rendring Rent with Clause of Re-entry c. CCCXXXIX Mich. 18 Eliz. In the Kings Bench. THe King seized of a Manor to which an Advowson is appendant a Stranger presented and his Clerk in by 6 Months It was holden that in such case the Grantee may present for the Advowson was always appendant and the Inheritance thereof passed to the Grantee for it was not made disappendant by the usurpation as in the case of a common person for the King cannot be put out of possession But the Patentee shall not have Quare Impedit
of the first disturbance for that presentment did not pass to him being a thing in Action without mention thereof in his Grant. And if the Patentee brings a Quare Impedit of a second avoidance he shall make his presentment by the presentment of the King not making mention of the Vsurpation Yet if a Bishop present for Lops in the case of a common person he ought to make mention of it for that is a title to the Patron CCCXL Trin. 28 Eliz. In the Kings Bench adjudged NOte In the Case of one Manning it was adjudged That where an Infant Executor sold the Goods of his Testator for a lesser price than they were worth and afterwards brought an Action of Detinue against the Vendee upon that Detinue in retardatione executionis Testamenti that the said Sale was good and should bind the Executor notwithstanding his Nonage 28 Eliz. In the Chancery CCCXLI The Lord Awdleys Case THe Lord Awdley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerset and afterwards by Indenture reciting the said Feoffment and the date of it and also that it was to the intent that his Feoffees should perform his Will as followeth in effect viz. My Will is That my said Feoffees shall stand seized to the use that the said Hoddy shall receive of the profits of the Lands 100 l. which he had sent to the said Lord Awdley and also stand seized to pay all his debts upon Bills signed with his hand and after the debts paid that the said Feoffees shall make Estate of the said Lands unto him the said Lord Awdley and Jone his Wife and to the Heirs of their two Bodies with divers Remainders over The said Lord had Issue by the said Jone and also had Issue by a former Wife a daughter the Feoffees never made any Estate to the said Lord and his Wife And by the Opinion of divers Iustices and Sages of the Laws that upon that matter no use was changed for it is not any last Will but an Intent And although that the Feoffees shall be seized to the use of the Feoffor and his Heirs because that no consideration was by which they should be seized to their own uses yet the same cannot make any Vse unto the said Lord and his Wife in tail without containing an Estate for the Wife is a Stranger to the Land And also it cannot be a Will for the Estate mentioned in the said writing ought to have been made to the said Lord and his Wife who cannot take the same by his Will. This matter depended in the Chancery And the advice of the Iustices being there required they delivered their Opinions That by the said Writing no Vse was changed nor any Estate vested in the said Lord and his Wife And a Decree was there made accordingly until proof be made that such an Estate was made CCCXLII Mich. 26 Eliz. In the Kings Bench. THe Case was in the Kings Bench in Debt It was found by Special Verdict That the Testator being possessed of divers Goods in London where he dyed and also at the time of his death the Queen being indebted unto him in the Sum of 4 l. 10 s. she then residing at Whitehall the Archbishop as Metropolitan granted licence of Administration to the Queen and the Bishop of London afterwards granted licence of Administration to J.S. The Court sent to the Civilians to appear in Court and to deliver their Opinions in this case And thereupon Lloyd Doctor of Law appeared and argued to this effect viz. That in ancient times in such cases the several Ordinaries committed several Administrations for the Goods in their Diocess respecive In which case the mischief was very great for the Creditor was driven to bring several Actions of the Administrators of the several Ordinaries Vide H. 7. 13 R. 2. Administrators 21. But afterwards upon a Decree upon a Composition in such cases the Metropolitan committed the Administration He further argued That debts cannot be said Bona Notabilia for they cannot be said within or without any County or Diocess and are things transitory and therefore called aes alienum And he said That the Administration granted by the Archbishop was void for as Archbishop he had not to intermeddle within the Diocess of another but as Legatus Papae And in the time of Hen. 2. Becket Archbishop of Canterbury was stiled Legatus Natus but now that power Legantine is determined and therefore the authority to commit Licences of Administration in another Diocess but in case of Bona Notabilia is determined And he said That by the Civil Law Jones Rep. 225. if a man deviseth all his Goods in such a County by that debts do not pass and yet by especial words a man may devise his debts Awbrey Doctor argued to the contrary and he confessed that in ancient times every Ordinary in such cases committed licences of Administration But he denied that the Prerogative which is now practised in such cases by the Metropolitan was given upon any Composition but that it began by Prescription If a man in his Iourney dyed in another Diocess notwithstanding that he had out with him but his necessary and ordinary Apparel in such case the Metropolitan committed the Administration and he said That as he conceived debts are Bona Notabilia secundum fictionem Legis they are local and he said to make Bona Notabilia it is sufficient if the Intestate have 3 l. in one Diocess and 2 l. in another Diocess But he said That posito that Bona Notabilia are not in the case yet the Administration granted by the Metropolitan is not void until it be revoked For although that the Metropolitan on the right of his Bishoprick hath not to intermeddle in another Diocess yet in this case because the Archbishop of Canterbury is a Patriarch For in Christendom there are four great Patriarchs and eight lesser Patriarchs whereof the Archbishop of Canterbury is one and by reason thereof he hath general Iurisdiction through all England Ireland c. But now by the Statute his Authority is restrained For he cannot cite any other out of other Diocess by any Process But notwithstanding he may do many great Acts by himself or his Chancellor in every Diocess and he argued very much upon the Prerogative of the Archbishop of Canterbury The Iustices did not then deliver any Opinion in this case Quaere If Letters of Administration of the Goods of a common person be committed to the Queen if good The case was adjourned Vide Cook 5 part Ucre and Jeffreys Case and Cook 8 part in Sir John Needhams Case for the Resolution of this Case CCCXLIII Pasc 17 Eliz. In the Common Pleas. A Man made a Lease for life and afterwards made a Lease to another for years The Ordinary committed Licences of Administration to A. the Tenant for life and A. joyned in the purchase of the Fee-simple of the Land demised It was
against the Inhabitants of the Hundred of Everingham It was argued by Serjeant Shuttleworth for the Hundred and he insisted upon this That the Robbery for which the Suit was brought was committed in the night and Vide Stamford 33 38. If a man be robbed in the day and the Chief escape and be not taken the Town or Hundred shall answer for it as if he should have said If the Robbery was not done in the day the Town or Hundred should not answer for it and by 11 H. 7 5. the Lord cannot distrain in the Night for Rent arrear for the Tenant is not bound to tender his rent in the night time And although there are no express words in the Statute of Winchester that Huy and Cry shall be made by the party robbed yet in reason it is to be presumed that the same was intended by the Statute Vide that by these words in the Statute it may be implyed viz. That no pain as yet hath been appointed for their Concealments and Lachess which Lachess imports That none ought to be charged in such case but here there was a defalt and no defalt can be where there was not notice and all the course is Hutesiam clamorem fecit notitiam inhabitantibus dedit and also this word Concealment amounts to as much for none can be said to conceal that whereof he had no notice And vide Stamford 35 36. if the Felon escape the Hundred shall answer to the party robbed who hath made Huy and Cry But the whole Court was clear that Huy and Cry or Notice to the Inhabitants was not requisite by the Statute for as it was said by the Lord Anderson it might be that the party robbed was bound so as he could not give notice or make Huy and Cry or it may be he was killed by the Thieves and b. 28 E. 3. 11. Fresh suit is to be made from Town to Town and from Country to Country and that Fresh suit is to be made by the Inhabitants of the Hundred and not by the party robbed for no mention is made of such Fresh suit And that will more clearly appear if we take to the Common Law before the Statute of Winchester for before the said Statute the Law was That every Town and City should be guarded by the Inhabitants c. so that if any suspected persons did resort to such Town or City he should be stayed until the next Sessions in which Case he should have deliverance according as he could acquit himself And if any Town or City failed therein and then a Robbery had been done the County should answer for it for at their own peril they were bound to guard the Country But there was some difference betwixt Robberies committed in the day time and Robberies done in the night which see 3 E. 3. so Corone 293. Where a man killed another in the day and the Felon was not taken but escaped in the night and the Town was amerced for the same because there the Adventurers came in the day time and the Felon was not taken And as to that which is found by the Verdâ—ct That the Robbery was done post occasum solis per lucem diurnam the Opinion of all the Iustices was That with such a Robbery the Hundred should be charged for that at such time of the day Travellers are commonly drawing to their Lodgings And afterwards Iudgment was given for the Plaintiff Pasc 29 Eliz. In the Kings Bench. CCCLIII Neals Case IN a false Imprisonment by Neal against the Mayor Sheriffs and Commonalty of the City of Norwich The Writ was directed to the Coroners of the said City and Exception was taken to the Writ because it was not directed to the Sheriff of the same City but to the Coroners But the Exception was disallowed by the Court for the Sheriff was part of the Corporation And also it hath been adjudged That a Sheriff cannot summon himself The Writ was holden good CCCLIV. JOhn Grendon brought Trespass for breaking of his Close against Thomas Albany and upon the pleading the Case was That Francis Bunney was seized and 1 Maij 20 Eliz. by Deed indented enfeoffed M. H. to the use of the said Francis Bunney for the term of his life the remainder to D. in tail the remainder to E. in tail the remainder over to F. in Fee In which Deed of Feoffment there was a Proviso That if it should happen one P. P. to dye without Issue Male of his Body that then it should be lawful for the said Francis Bunney at all times during his life by his Deed indented to be sealed and delivered in the presence of three credible Witnesses to alter change diminish or amplifie any Vse or Vses limited by the said Deed or any Vse or Vses thereof to any person or persons and to limit after the death of the said Francis to begin After which the said Francis Bunney 1 Aprilis 23 Eliz. by his Deed indented did renounce relinquish and surrender to the said M. H. D. E. F. all such liberty power and authority of revocation which he had after the death of the said P. P. without Issue c. and further did remise release and quit-claim to them the said Condition Promise Covenant and Agreement aforesaid and all his said Power Liberty and Authority and further granted to them and their Heirs that at all times then after the said power liberty and authority should cease and to all intents and purposes should be void After which P. P. dyed without Issue Note that in this Case Francis Bunney being but Tenant for life enfeoffed one T. upon whom the said D. entred for a Forfeiture 1 Maij 23 Eliz. after which 20 Maij 24 Eliz. the said Francis Bunney by Indenture between him and the said D. sealed and delivered as abovesaid altered the former Vses and covenanted and agreed with the said D. that from thenceforth the said M. H. and his Heirs should be seized to the use of the Plaintiff and his Heirs It was argued by Altham That by that Feoffment made by the said Francis Bunney to the said F. the liberty and power aforesaid was not extinct or lost for the liberty and power was not then a thing in esse because then P. P. was alive and also the liberty is collateral to the Land whereof the Feoffment is made 39 H. 6. 43. The Son and Heir apparent disseiseth his Father and hereof enfeoffeth a Stranger the Father dyeth now against his own Livery the Son doth not enter but if the Father dyeth then the Son shall enter which proveth that the Livery is not so violent as to destroy a future Right but that afterwards it may be well revived à fortiori in our case where the thing pretended to be extinct is meerly collateral 34 E. 3. Fitz. Garr 69. In Assize of Common the Release of the Father with Warranty of the Land is no bar because it is of
time of the Recovery for he is estopped to say that his Father was not Tenant to the Praecipe and therefore it is a good Recovery against him by way of Estoppel CCCLXXXV Mich. 6 Jac. In the Kings Bench. IN a Writ of Error brought upon a Iudgment given in Communi Banco in an Ejectione firmae upon a Lease of a Running Water it was agreed by the Court That no Livery could be made of Running Water because it is fugitive but otherwise it is of Water in a standing Pool for that is certain and peramount and of that Livery ought to be with a dish of part of the Water CCCLXXXVI Duncombs Case In the Common Pleas. THe Grantee of a Rent-charge for life acknowledgeth a Statute and afterwards he released to the terr-Terr-tenant It was the Opinion of Cook Chief Iustice in Communi Banco that the Rent after the Release should be put in Execution upon the Statute CCCLXXXVII The Opinion of Popham Chief Justice in the Kings Bench. IT was the Opinion of Popham Chief Iustice That if a man covenant to stand seized to the use of himself for life the remainder to the use of his Executors that in that Case the Executors shall take to the use of their Testator But if a man covenant upon good consideration to stand seized to the use of the Executors of a stranger that the word Executors is a word of Purchase and they shall take to their own use CCCLXXXVIII Mich. 7 Jac. In the Common Pleas. COok Chief Iustice put this case If the custom of a Manor is that every Tenant at his death shall pay his best Beast for a Heriot if a Feme sole who is Tenant for life of this Manor taketh a Husband and afterwards dyeth if the Lord shall have a Heriot Dodderidge the Kings Serjeant said that he should not because that the Wife had not Goods Mich. 7 Jac. In the Common Pleas. CCCLXXXIX Wards Case AN Information was against Ward and his Wife for his Wives not coming to the Church upon the Statute of 28 35 Eliz. It was said by Cook Chief Iustice That the Husband is chargeable for the Recusancy of his Wife and he said there needed no Conviction but before an Information the Husband shall not be chargeable for his Wife but where he is named with the Wife and he said That the King had a Fee-simple in their Lands for he hath it to him and his Heirs and Successors until conformity with satisfaction of the Arrearages Vide Statut. 28 Eliz. Rastal Tit. Corone Mich. 3 Jac. In the Common Pleas. CCCXC Wheelers Case A Copyhold custom is That a Woman shall have a Free Bench quam diu se bene gesserit and live chaft and she is incontinent of which the Lord hath not notice and the Lord admits her Tenant It was holden it should bind the Lord although he had not notice of the Incontinency Mich. 5 Jac. In the Star-Chamber CCCXCI Edwards and Wattons Case NOte for Law in the Star-Chamber If a man write a scandalous Letter unto another and put his name to it if the party who writ it publisheth the same either before or after the delivery an Action upon the Case lyeth against him at the Common Law But if the party who writes it doth not publish it yet he may be sued for the same in the Star-Chamber And it was said in this Case That he who receives Books which are written against the Religion established in the Kingdom and shews them to others with Comments of them he runs into a Praemunire by the Statute of 4 Eliz. CCCXCII Rolls tit Waste THe Case was A. made a Lease of White Acre to B. upon condition he should do no Waste in which there was a Fish-pond stored with Carps Pikes and their Fry C. destroys all the Fish B. being upon the Land for which A. enters 1. If the destruction of all the Fish and their Fry be Waste within the Statute of Gloucester It was said that it was for they are parcel of the Inheritance as are Deer within a Park enclosed But it was adjudged 29 Eliz. in Communi Banco in Moyle and Ewers Case That where a Lease of a Manor was in which was a Warren of Conies and the Lessee destroyed the Conies that it was not waste for they were ferae naturae and the Land bettered by them and such was the Opinion of Walmsley Iustice although the Conies were in a Warren paled and enclosed with a Wall but the destroying of Doves in a Dove-house is Waste And it was adjudged in Sir Francis Palmers Case 9 Jac. in B.R. That although the cutting of Vnderwood was not Waste yet the eradicating of it was Waste The other matter was If the destruction of the Fish by a Stranger the Lessee being upon the Land were waste it was said it was waste for qui non vetat peccare cum possit jubet and it was said That if a man commit waste or suffer another to do it he did incur the penalty in the Statute But in this case it was said That a Condition to defeat an Estate should be taken strictly As if a Custom be that if a Copyholder for waste done shall forfeit his Estate if a stranger doth the waste it is no Forfeiture for three things in Law shall be taken strictly Conditions Customs Penal Laws As if the Custom be That an Infant at the age of 15 may make a Feoffment he cannot make it by Attorney And it was adjudged 1 Jac. in Communi Banco in Woodleys Case So the Statute of 5 E. 6. a Penal Law is That a man shall not buy any Victual to sell the same again Yet it was adjudged That where a man buys Meal and makes the same into Starch and sells it he may well justifie the sale thereof and it is out of the Statute because it is not the same thing Pasc 8 Jac. In the Kings Bench. CCCXCIII Wards Case IT was adjudged in this Court That if a Mill be set upon Posts that no waste lyeth for it and that a Copyhold might be of a Mill as it was adjudged in Green and Harris's Case Also it was said That there is a real and personal Forfeiture of Copyhold Lands Real is not necessary to be found by the Homages as was resolved in Brocks Case but otherwise it is of a Personal Forfeiture And Hil. 8 Jac. a Woman Copyholder built a new House upon the Land and it was agreed to be a Forfeiture Pasc 8 Jac. In the Common Pleas. CCCXCIV Brown and Tuckers Case IF a man have Estovers to such a House 4 Co. 84. and he enlargeth his House or buildeth more Houses or Chimneys the Estovers remain to all the Houses and Chimneys which were there before and not to those added or new builded as it was adjudged Pasc 8 Jac. In the Common Pleas. CCCXCV Batcliffe and Chaplins Case 1 Roll. 623. IN an Ejectione firmae between Ratcliffe and Chaplin upon not
guilty pleaded it was given in Evidence That time out of mind a Custom had been used and that proved by Witnesses that the eldest Heir be it Male or Female should inherit the Land and that it appeared in the Court Rolls of the said Manor of which the Land in question was parcel two Presidents to prove that the eldest Sister ought to inherit and that the youngest Sister should have nothing in the Land the one President was 8 Eliz. and the other 18 Eliz. In the other side in disaffirmance of the custom it was given in Evidence divers Court-Rolls 6 H. 4. and especially one President That both Sisters should inherit as Coparceners did by the common Law notwithstanding which the Iury found for the custom in regard they upon their own knowledge knew the usage of the Country and that in divers places it had been so used in the Hundred within which this Manor was But in this case it was agreed by the Court That if the custom had been that the eldest Sister only should inherit yet by that custom the eldest Aunt or the eldest Neece should not inherit the Land And so it is in the case of Borough English where the custom is That the youngest Son shall have the Land it doth not give it to the youngest Vncle for customs shall be taken strictly and Foster Iustice said That so it was adjudged in one Totnams case And in the Argument of this case it was said by Cook Chief Iustice That there are two Pillars of Custom one the common usage the other that it be time out of mind and therefore upon the Evidence given to the Iury the Court enforced the parties which maintained the custom to shew Presidents in the Court-Rolls to prove the usage and he said that without such proof and that it had been put in ure although it had been deemed and reported to have been the true custom yet the Court could not give credit to the promise by Witnesses Pasc 8 Jac. In the Common Pleas. CCCXCVI Arden and Goads Case IN an Action of Trespass upon the Case for divers Goods the Declaration was of Trover and Conversion of them to the Defendants use Vpon Not Guilty pleaded they were at Issue and there an Inventory of the Goods was given in Evidence to the Iury as the Goods were apprised by Vpholsterers And in this Evidence another Point did arise These Goods were taken in Execution and delivered to the Defendant by the Sheriff and afterwards the Owner of the Goods against whom the Execution was awarded made a Deed of Gift of them to the Plaintiff by these words scil He granted all those Goods which were late put in Execution Cook Chief Iustice said That Quacunque via data that Deed could not entitle the Plaintiff to the Goods for it is a Dilemma for Posito that the Goods were put in Execution then they did not pass and admit that they were not put in Execution he did not grant but only those Goods which were in Execution and so there is an opposition and afterward Iudgment was given for the Defendant Pasc 8 Jac. In the Common Pleas. CCCXCVII The Earl of Rutland and Spencers Case THe case was 8 Co. 55. The late Queen Elizabeth granted to the Earl of Rutland the Office of Parkership and Constable of c. Habendum from the time of his full age for life and also by the same Patent she granted him the Stewardship of a Manor Habend ' praedict ' Officia pro termino vitae per Deputatum suum vel Deputatos suos c. eidem Officio pertinent ' in tam amplis modo forma c. Volentes quod subditi nostri sint auxiliantes assistentes to him And after that one as Steward to that Court came and made Proclamations and also did the Deputy of the Earl of Rutland And thereupon the Earl of Rutland brought an Action upon the Case against the other In this case three Points were moved by Nicholls Serjeant 1. If a Stewardship granted by the King might be exercised by a Deputy without such authority given him in his Patent And he took a Difference between an Office of Trust and other Offices as in 28 H. 8. of a Carver c. and 11 E. 4. 1. the Office of the Chancellor of the Exchequer and such Offices cannot without special Authority be assigned over 39 H. 6. 34. Of the Office of Marshal per se vel sufficient ' Deputatum c. Nevills Case in the Commentaries Offices of trust which are inheritances may be executed by Deputy 8 Eliz. Dy. 248. A Steward may be retained by word and he said There is a difference between a Deputy and an Assignee for an Assignee can forfeit but his own Estate but a Deputy shall forfeit the Estate of his Master and therefore if a Steward grant his Office for life who hath the Office in Fee the Grantee shall forfeit no more than his Estate for life 2 E. 6. Br. If the under Steward make Admittances it is good and yet he is but a Deputy but if it be out of Court then it ought to be by a special Custom Vide 2 Eliz. Dyer The Office of Chyrographer granted for life and exercisable by a Deputy And he said That in these Letters Patents the intent shall be taken beneficially for the Subject and that for the Honour of the King if the King be not deceived in his Grant. Vide 6 E. 6. Dyer 77. Dodderidge to the contrary and he took a difference between Offices of Trust granted for life and those which are granted in Fee for he who hath it but for life cannot assign them over for the Grantor did not intend that another person should have the Office unless express mention were made in the Grant of Assignees But when the Office is granted in Fee there is no such confidence put in the person of the Grantee for his heir shall have it who is a person not known to the Grantor But in all cases the Grantee is elected for his skill I agree 10 E. 4. 10. he may make a Deputy by special words but then that Deputy by those words cannot make a Deputy That a Steward is an Officer of trust is proved for he enters Plaints in the Court and Surrenders and although he hath not a Iudicial Place yet he hath a Ministerial Place and the Lord and Tenants repose their trusts in him And it is also an Office of Skill Vide 21 E. 4. 20. That the Office of the Keeper of a Park Steward c. cannot be assigned without special words of Assignees And as to the Case which was put by Nicholls 8 Eliz. That one may make a Steward by word and therefore an Assignee for life by word it is a Non sequitur And he said That for another cause in the Patent it self no Deputy in this case could be made for although the words are Habendum Gaudendum c.
Offic ' praedict ' per Deputarum suum sive deputatos suos the same had been good if there had been no Habendum before There was an Habendum before in the Patent But here are three several Habendums which are as three several Grants and the defect of the one shall not be supplyed by the other 22 H. 6. 11. 2. Assises are maintainable for two Offices although they be by one and the self same Grant And those words Volentes c. in the Patent are nothing to the purpose for the Grant it self is determinable by the Body of the Grant and the Clause de Assistantes shall not supply that Vide 20 H. 6. 1. Land given to two Haeredibus with warranty Haeredibus suis Vide 13 E. 3. Grants 63. Throgmorton and Tracies Case Plow Com. 18 H. 8. Br. Lovels Case and so in our Case the clause of Assistantes makes nothing to the matter for reddendo singula singulis it extends to no more than passed and was granted before in the body of the Grant. The second Point which Dodderidge argued was If there was a sufficient Disturbance and he held that there was not and therefore the finding of the Iury not good And the Iury hath not found the vi armis and he said That when the Writ is vi armis there ought to be some violence and taking of something and some actual thing is to be done Vide F. B. 86. 92. 43 E. 3. 20. 8 R 2. Title Office. 48 E. 3. 25. 16 E. 4. 11. 2 E. 3. 40. But in this Case there is but a threatning at the most but no force is used and there the Writ is ill and there is no sufficient Disturbance to maintain this Action The Case was adjourned Trin. 11 Jac. In the Common Pleas. CCCXCVIII Cookes Case IN a Writ of Intrusit Maritagio non satisfacto It was found for the Plaintiff but no damages were assessed by the Iury and the value of the Marriage was found to 50 l. and now the Question was If the same might be supplyed by a Writ of Enquiry of Damages and prima facie the Court seemed to be of opinion it could not for where a man may have an Attaint there no damages shall be assessed by the Court if they be not found by Iury and the Court would advise of it but afterwards the same Term it was adjudged That no Writ of Enquiry should Issue forth But a Venire facias de novo was granted Vide 44 E. 3. Thorp acc ' CCCXCIX MOuntague Serjeant demanded of the Iustices their opinions in a Case upon the Statute of 3 Jacobi of Recusants in the behalf of the Vniversity of Oxford The Case was If a Recusant Convict to avoid the said Statute grants his Patronage for years to one of his Friends in trust if the Grant was void or not within the said Statute The Iustices refused to deliver their Opinions in this Case for they said That this Point might judicially come in question before themselves and such they said was the Answer of Hussey in 1 H. 7. in Humphrey Staffords case When King Hen. 7. came in Banco and demanded a question of them but yet tacite they seemed to agree that such a lease of the Patronage was void by the said Statute and they said That they would not have the Vniversity to be discouraged in the case which implyed their Opinions to be accordingly And 21 H. 7. was vouched that the Patronage was only matter of favour and not valuable And in this Case Cook said Quod apertus Haereticus melior est quam fictus Catholicus Trin. 11 Jac. In the Common Pleas. CCCC Grubhams Case THe Case was this Grubham made a Lease to one by Deed-poll Habendum to him and his Wife and to his Daughter successive sicut scribuntur nominantur in ordine and afterwards dyed his Wife dyed and if it was a good remainder to the Daughter was the Question Harris Serjeant It was void and not a good remainder for the incertainty Et vide Cook 1 part Corbets Case In all Contracts and Bargains there ought to be certainty and therefore in 22 H. 6. If a Feoffment be made to two Haeredibus it is void although it be with warranty to them and their Heirs Vide 9 H. 6. 35. Where renunciavit totam Communiam doth not amount to a Release because it is not shewed to whom he released And so in 29 Eliz. in Banco Regis in Windsmore and Halbards Case where an Indenture was to one Habendum to him and his Wife and a third person and it was holden that it was void by way of Remainder to any of them But the Court was of Opinion in the principal Case That the Daughter had a good Estate in Remainder and that the Case did not differ from the Case in the Lord Dyer where a Lease was made by Indenture to one Habendum to him and to another sicut nominat in Charta and that those words made the Grant certain enough and so in this Case sicut scribuntur nominantur in ordine shall be sicut scribuntur nominantur in eadem Charta But they agreed That a Lease made to three Habendum successive was not good for the incertainty Hil. 9 Jac. In the Kings Bench. CCCCI Price and Atmores Case IN an Ejectione firmae it was agreed by the Iustices Where a man possessed of a term for 60 years by his Will made his Wife his Executrix and devised all his term and interest to her and if she dyed before the term ended that the same should remain to his Son and the Heirs Males of his Body the Son dyed the Executrix entred and claimed as Legatee and assigned the term over the Executor of the Son entred that his Entry was not lawful for the Son had but a Possibility and no Interest for by the devise of the whole term the whole Interest was in the Wife and when it was in her it could not remain over otherwise if the Land had been granted to her for life and if she dyed that it should remain as before And note that 25 Eliz. it was adjudged in Communi Banco that such a Possibility could not be released And 29 Eliz. in Hammingtons case that it could not be granted Trin. 11 Jac. In the Common Pleas. CCCCII. The Bishop of Exeter and Sir Henry Wallops Case NOte in this case it was adjudged That the King by a special Proviso in the Statute of 21 H. 8. of Plurality might give to any of his Chaplains as many Benefices as he pleased But otherwise it is of a common person for they are stinted by the Statute Mich. 12 Jac. In the Kings Bench. CCCCIII Glover and Archers Case THe case was Tenant for life made a Lease for 21 years 10 Co. 127 128 2 Cro. 127. 309. ib. rendring Rent at Mich. and the Annunciation or within 13 Weeks of any of the said Feasts After Mich.
that the Son for a Fine of three years paid should have the Land for his life Hutton said That the Traverse was good for if there was not any such Custom that the Son should have it so for life then ex consequente sequitur that there is not any such Custom that the Son should have it after the death of the Wife or her Surrender and therefore he needed not to Traverse the last Custom alledged But the whole Court was against him and ruled That the Traverse was not good for he ought to have traversed the last Custom because there are several Customs and the one is immediately to him the other not and the Defendant claimed by the Second Custom and therefore the Court awarded That he should amend his Plea. Pasc 12 Jac. In the Common Pleas. CCCCVII Sir Henry Rolls and Osborns Case Hob. Rep. 20. More Rep. 859 2 Brownl 169. SIr Henry Rolls brought a Writ of Warrantia Chartae against Sir Robert Osborn and Katharine his Wife and shewed That the Defendant ought to warrant him a Messuage 40 Acres of Land 700 Acres of Pasture in Kelmarsh and shewed That Sir Robert Osborn and his Wife levied a Fine to him and his Heirs of a Manor and of the Lands aforesaid with warranty to him and his Heirs and further shewed That a Writ of Entre sur disseisin was brought against him of the said Messuage 40 Acres of Land 700 Acres of Pasture and that he had demanded the Warranty of the Defendant or that he would minister to him a Plea which the Defendant hath refused to do to his damage of 1000 l. the Defendant confessed the Fine and Warranty as aforesaid but further pleaded That in the same Term that the Fine was levied a Writ of Entry was brought against Sir Henry Rolls in which Writ he vouched to Warranty the said Defendant who alone entred into the Warranty and vouched over the common Vouchee and so a Recovery was had accordingly And averred That the said Recovery was to the use of Sir Henry Rolls for his life and if there was a Marriage between him and A. S. within 4 years then to the use of the said A. S. for her Ioynture with divers remainders over and averred the life of Sir H. Rolls Vpon which the Plaintiff did demur in Law. Shirley Serjeant argued for the Plaintiff That the Warranty was not destroyed but that the Plaintiff might well mantain his Warrantia Chartae and for the same he vouched 22 H. 6.22 Cliffords Case That there ought to be an alteration of the Estate to which the Warranty is annexed and here is no alteration of the Estate for although the Recovery was had the said Term and a Voucher upon it yet because the uses did not take effect presently but were contingent uses he remained Tenant in Fee-simple as he was before and so the first Warranty remained and was not destroyed Mountague Serjeant contrary and that the Warrantia Chartae was gone and that for four Causes 1. He who comes to an Estate in the Post shall not have a Warrantia Chartae but Sir Hen. Rolls cometh to the Estate in the Post ergo he shall not have Warrantia Chartae And for that vide 29 Ass 34. Lord by Escheat shall not have Warrantia Chartae 22 Ass 57. The Lord of a Villain shall not have a Warrantia Chartae 21 H. 6. Disseisor shall not have Warrantia Chartae and so 19 H 6.25 10 H. 7.10 Tenant by the Courtesie shall not have the Writ because all these come to the Lands in the Post But see Cook 3. part Lincoln Colledge Case they may have peradventure benefit of a Rent or of a Condition but not of a Warranty 27 E. 3. garr ' Statham acc ' 2. Every Warranty ought to have the same Estate continuing to which the Warranty is annexed but Sir Hen. Rolls had not the same Estate continuing ergo he shall not have the Warranty because the Fine was to him and his Heirs with Warranty but this Recovery which was but a further assurance was but to the use of himself for life with divers Remainders over so as the first Estate is altered And 42 E. 3.2 40 E. 3. 14. it is a good Plea in a Warrantia Chartae that the Demandant is not Tenant And 41 Eliz. in Bointon Chesters Case it was adjudged in this Court That if a man makes a Feoffment with Warranty who enfeoffs the first Feoffor upon Condition that that Warranty remains he shall vouch by reason of the first Warranty but if upon that Feoffment he had limited any new use there because the Estate was altered the Voucher was gone Vide F. N. B. 135. 19 E. 3. T. Voucher 12.2 48 E. 3. 18. acc ' And it was Resolved 34 Eliz in Banco Regis in Kempe Henninghams Case That in such Case he should not have several Warrantia Charta's And therefore because in the principal Case he hath once vouched upon this Recovery and upon that the Estate is altered he cannot now have Warrantia Chartae 3. Every Warranty is a Covenant real which consists in privity and therefore destroy the privity and the warranty is gone But now in this Case the first privity is destroyed therefore the warranty is gone And therefore 11 H. 4. 8. if two Ioyntenants be with warranty and one of them maketh a Feoffment in Fee the warranty is destroyed because the first privity is destroyed 21 H. 6. 51. acc ' But Vide 19 E. 3. Statham Garr ' 31. If two Ioyntenants are with warranty and the one Releases to the Feoffor there the warranty remains because the privity remains Vide 2 H. 6. 7. Cook 1 Part Chudleighs Case 125. acc ' And see M. 31 Eliz. in this Court King and Watts Case Land is given to Husband and Wife and to the Heirs of the Body of the Husband and Wife the Husband levies a Fine and dyes without Issue the Wife is impleaded and adjudged that she could not have Aid nor Warrantia Chartae because the Estate was bound by the Fine the Husband being Tenant in special Tail. 4. No warranty can have but one recompence and if there be recompence given the warranty is gone and extinct But here is a recompence made by the Voucher in this Recovery therefore the warranty is extinct 34 Ass pl. 15. 23 E. 3. garr ' 77. acc ' and 15 E. 4. 13. 12 E. 4. 12. If he will not take advantage of the warranty when he may he shall never have it after Vide F. N. B. 134. acc ' And 36 Eliz. it was adjudged in Owens Case That if Tenant in Tail bargains and sells his Lands and suffers a Recovery and afterwards Inrolls the Deed that that Recovery is a good bar to the Estate tail because there is a supposition of recompence and so he prayed Iudgment for the Defendants It was adjourned Vide this Case now Resolved in the Lord Hoberts Reports
Copy-hold 88 Not within the Statute of Wills. 236 If a Copyholder in possession surrender the Reversion of his Land post mortem suam to the Lord to an use nothing is thereby passed 8 Tenant for Life of a Copyhold remainder in fee he in the remainder may surrender his Estate if there be no Custom to the contrary 9 In what Case a Copyholder ousted cannot make a Lease for years upon which the Lessee may maintain Ejectione firmae 30 If a Copyholder dyeth his Heir within age he is not bound to come to any Court during his Non-age to pray admittance or tender his Fine 31 If the death of his Ancestor be not presented nor proclamations made he is not at any mischief although he be at full age ibid. A Copyholder may surrender by Attorny 111 241 Costs The Plaintiff shall have Costs upon 5 Eliz. for hunting in his Park notwithstanding the Statute gives treble damages 36 If the Plaintiff be Non suited in an Action upon an Escape the Defendant shall not have Costs 182 Debt SHall not be brought against the Husband upon a Contract by the Wife 42 For Rent 18. For Rent-Corn reserved upon a Lease for years shall be brought in the Detinet 47 Upon a Concessit solvere according to the Law Merchant and Custom of the City of Bristol 105 Devise To a Colledge in Vacancy of a Head. 223 If one possessed of a Term deviseth that his Son shall have the same when he comes to the age of 18 years and that his Wife whom he makes Executrix shall enjoy it in the mean time and dye and the Wife take Husband she shall have the Term as Executrix till the Son accomplish the age of 18 years 1 Of Lands part to the eldest Son in Tail and part to the younger Son in Tail with this clause That if any of the Sons dyed without Issue the whole Land to remain to a Stranger in Fee the Sons entred respectively and the younger dyed without Issue the Stranger entred but his Entry was not lawful for the eldest Son shall have the Land by the implicative Devise 14 By a Father to his Son and Heir 35 200 237 Who shall first take by a Devise 37 Emblements WHere by Law they belong to the Executors 1 Entry If a Disseisor of 100 Acres le ts the same to divers for years the Entry in one Acre by the Disseisee is an Entry against them all 8 And if one makes a Lease for years rendring 10 l. for the first two years and afterwards 30 l. every year with Condition to Re-enter if the Rent of 30 l. or any part be behind the Lessor enters for Non-payment of the 10 l. his Entry is lawful for it was but one Rent of which the 10 l. was parcel ibid. Entry Congeable 39 Error He who is special Heir by the Custom as of Burrough English shall have the Writ of Error and not the Heir at Common Law. 5 Estate Executed 37 Estrepement In Partition ought not to be granted and why 60 Evidence Maybe good enough to maintain a Declaration though it vary from it 14 Execution An Infant once discharged out of Execution shall never be in Execution again 6 Execution of a Statute shall bind the King. 10 Where not good upon a Capias without a Scire Facias 24 If the Bail be taken in Execution before the Capias ad Satisfaciend against the Defendant be filed they may avoid this Execution by Error but not by Plea or Surmise 24 If the Plaintiff takes out Execution within a year and a day after Judgment obtained although he doth not prosecute it in two or three years yet when he pleaseth he may proceed upon it and shall not be put to a Scire Facias 44 Exposition of Words The words sub Conditione ea Intentione in a Feoffment be not a Condition but an Estate executed presently according to the intent 2 Domus est nomen collectivum and contains many Buildings as Barns Stables c. 16 Omnes Dimissiones being general words shall not be restrained to special Leases 17 The word growing though it sound in the Present Tense yet it shall be taken also in the Future Tense 36 So the word being but otherwise if the words had been tunc being 37 The word paying if it creates a Condition or not Quaere 50 Proviso semper put on the part of the Lessee upon the words of the Habendum makes a Condition but contrary of a Proviso on the part of the Lessor 71 The Provost Fellows and Scholars of Queens Colledge in Oxford as Guardians of the Hospital c. in S. make a Lease of Lands parcel of the Possession of the said Hospital by the name of Praepositus Socij Scholares Collegij Reginalis in Oxonia Gardianus Hospitalis c. and good without saying Gardiani in the Plural Number 85 Extinguishment If Lessee for 10 years grant a Rent-Charge to his Lessor for the same years and the Lessor grant the Remainder in Fee to the Lessee for years by this the Rent is extinguished 2 Felo de se IF the Queen grants to A. Catalla Felonum de se within such a Precinct where one indebted to the Queen having Goods is Felo de se the Queen shall have the Goods to satisfie her Debt 6 Feoffment To Uses 23 By one Coparcener cestuy que use of the whole is not only a Feoffment of that moiety she might lawfully dispose of but also of the other moiety by disseisin 52 Fines of Lands Where a Fine levied by the Husband of Lands whereof he and his Wife are Donees in Special Tail shall bar the Issue and where not 2 Fine by the Husband where avoids a Lease e contra 15 Fines levied to Uses 22 Issue of a Tenant in Tail the Remainder to the King shall be barred by a Fine 40 Fine for Alienation Not only the Land aliened but the other Lands of the Alienor shall be chargeable for the Fine for Alienation without Licence 47 Forfeiture If Lessee for years being sued for Rent claims Fee in the Land and hath none it is a Forfeiture 3 Of an Obligation with Condition That the Grantee of the next Avoidance of an Advowson should enjoy the same without any disturbance or claim of the Grantor 18 An Obligation to perform a Covenant that the Lessee of a Term shall enjoy it without expulsion or any Act done or to be done by the Lessor shall not be forfeited by Non-fesance 38 39 Of an Obligation conditioned to perform an Award 190 If Tenant for life joyn the Mise upon the meer Right it is a Forfeiture 128 Where Tenant for life is impleaded if he maketh default or confesseth the Action it is a Forfeiture ibid. If Tenant for life bargains and sells his Land by Deed inrolled although no Fee passeth yet it is a Forfeiture 129 contra 124 Grant. BY the King of the Office of the Kings Bench. 19 Recital in Grants of the King.
Mich. 29 Eliz. In the Kings Bench. XXII Barton and Edmunds Case AN Infant and another were bound for the debt of the Infant Infant the Infant at his full age promised to save the other harmless the Infant died It was adjudged that upon this Assumpsit Assumpsit an Action upon the Case did lie against his Executors XXIII Mich. 36 Eliz. In the Kings Bench adjudged IF an Executor promise to pay a Debt when he hath not Assets It was the Opinion of all the Iustices that no Action upon the Case lieth against him but if he hath assets then it is otherwise And the Heir if he hath nothing by descent is not subject to an Action upon such a promise Mich. 28 Eliz. XXIV The Lord Pagets Case Indictments AN Indictment was Quare vi armis clausam A. B. apud D. fregit whereas A. B. then had a Lease at Will of the land the matter was for digging of Turfs the Indictment was holden to be good XXV 25 Eliz In the Kings Bench. Indictments INdictment De uno Equo where it was a Gelding holden not good But otherwise it is where Trespass was brought de Equo castrato and the Iury found a Gelding and adjudged for the Plaintiff 26 Eliz. XXVI Tucker and Nortons Case Execution AN Infant in Execution upon condemnation in Debt sued a Writ of Error his Father and Brother bailed him It was said the Recognisance shall be by them two only that the Infant shall appear and if the Iudgment be affirmed that they pay the mony and not that they shall render his body to prison for when he is once discharged out of Execution he shall never be in Execution again XXVII Mich. 29 Eliz. In the Common Pleas. Nobleman Recognizance IT was holden by the Iustices That a Nobleman shall be bounden with his bail in a Recognizance that he shall render his body and that upon the Statute of 13 E. 1. If he hath not goods or lands his body shall be taken in execution for the Law in such case excepts only Clarks XXVIII Hil. 26 Eliz. In the Exchequer Felo de se THe Queen granted to one Catalla utlagatorum felonum de se within such a Precinct One indebted to the Queen having Goods is felo de se within the Precinct Resolved the Queen should have the Goods to satisfie her debt 26 Eliz. In the Kings Bench. XXIX King and Cottons Case LEssee for life the remainder in tail the remainder in fee Disseisin Lessee for life makes a Deed of Feoffment of the Land and delivers it and makes a Letter of Attorney to another to deliver Seisin who enters and makes Livery accordingly adjudged that the Attorney is a Disseisor 26 Eliz. In the Kings Bench. XXX Gerrards Case THe Owner of the Lands severed his Tythes Prohibition and a stranger took them and carried them away The Parson libelled in the Spiritual Court against the Owner of the Land for the Tythes who thereupon prayed a Prohibition It was adjudged no Prohibition should issue in this Case for that he might plead the same matter in Bar in the Spiritual Court. Hil. 31 Eliz. XXXI Willet and Wilkinsons Case NOte it was adjudged Surrender that if Lessee for years take another Lease from the Guardian in Soccage that the same is a Surrender of his first Lease Note the second Lease was made in the name of the Guardian Trin. 26 Eliz. XXXII Ould and Conyes Case IT was adjudged Commoner Conies that a Commoner cannot kill Conies which destroy his Common though he hath not any other remedy Trin. 29 Eliz. In the Kings Bench. XXXIII Mayes Case ONe sent a Letter by a Carrier to a Merchant for certain Merchandizes to send them to him receiving a certain sum of mony the Merchant sent the Merchandizes by the Carrier without receiving the mony It was the opinion of the Iustices that the Buyer should not be charged for the mony for it was a conditional bargain and it was the folly of the Merchant to trust the Carrier with the Wares Mich. 30 Eliz. XXXIV Haltons Case A Recognizance was acknowledged before Sir N. Read one of the Masters of the Chancery Recognizance Inrollment and the Recognizor died before it was enrolled it was doubted if it might be enrolled at the Petition of his Executors it was agreed by the Iustices that it might be well enough for it is like to a Conusans of a Fine before a Iudge which may be removed out of the hands of the Iudge by Certiorari and yet it is not a Record till the perfection of it At the same time it was doubted also if the Chancery would aid a man when there wanted the words Heirs in a Deed where the land was sold for mony Chancery compel Attornment But it was agreed that after a Fine levied the Chancery might compel the Tenant to Attorn Hil. 27 Eliz. XXXV Holland and Hopkins Case IN Ejectione firmae it was agreed by the Court that if a Disseisor be of an 100 Acres and he lets the same to divers for Years that the entry into one Acre by the Disseisee is an entry against them all but if they had been Tenants for life Quaere for that then he might have his Action against them And it was said Entre congeable that if one makes a Lease for years rendring for the first two years 10 l. and afterwards 30 l. every year with condition if the rent of 30 l. or any part of it be behind that the Lessor enter The Lessor enters for not payment of the 10 l. that his entry is lawful for the 10 l. was parcel of the rent for it was but one rent Trin. 29 Eliz. In the Kings Bench. XXXVI Clamp and Clamps Case Copyholder Surrender A Copyholder in possession surrendred the Reversion of his land post mortem suam to the Lord to an use c. It was adjudged that thereby nothing passed XXXVII Trin. 21 Eliz. In the Common Pleas. A Lease was made of a Mannor with all Gardens Orchards Yards c. and with all the profits of a Wood except to the Lessor forty Trees to take at his pleasure It was a Question if the Lessee should have the Wood It was the opinion of Dyer That the Wood was not comprised within the Lease but the Lessee should only have the profits as pawnage Leases herbage c. And he said it was a Case adjudged a man made a Lease of a Wood ad faciendum maximum proficuum meliori modo quo poterit that the Lessee thereby could not cut the Trees nor do waste Mich. 33 Eliz. In the Exchequer XXXVIII Butler and Lightfoots Case IT was holden by the Barons Copyholder Surrender 3 Leon. 239. That if Tenant for life be of a Copyhold the Remainder over in Fee to another he in the Remainder may surrender his Estate if there be no custom to
Defendant that these Matters of Forgery were not within the Statute of 5 Eliz. nor also the Perjury or the procurement thereof upon which the Lords of the Council there Upon the Statute of 5 Eliz. of Perjury referred the consideration of the said Statute to both the Chief Iustices who at the next day in Court declared their Opinions upon the said Matters i. e That the said Matters did not extend to the Forgery of a Deed containing a gift of Chattels personals which see clearly by the Statute which as to that purpose extends but to Obligations Bills Obligatorie Acquittances Releases or other Discharges and that also a Deed of Assignment of a Lease of Lands in Ireland is not within the said Statute and also they were of opinion that the said Perjury and the procurement of it was not punishable by the said Statute because the Oath was taken coram non Judice for the Town-Clerk of London could not take an Oath in such a case Note no more than a private person But because that the Bill in the perclose and conclusion of it was contrary to the Laws and Statutes of this Realm the two Chief Iustices were of Opinion That the said Court might punish these Offences as Misdemeanors at the Common Law but not according to the Statute and afterwards Shyriffe was fined and by Order of the Court to stand upon the Pillory Mich. 29 Eliz. In the Exchequer Chamber LXXX The Queen and Lord Vauxes Case Bills IN the Exchequer Chamber before the Chancellor c. the Lord Vaux brought a Writ of Error upon a Iudgment given against him in the Court of Exchequer and assigned for Error that a Bill was exhibited against him that the Lord Vaux had taken certain goods of the Queen at Westminster in the County of Middlesex and also had intruded into the Rectory of Ethelborough in the County of Northampton whereas the Queen ought to have brought several Bills being for several causes arising within several Counties But it was resolved by the whole Court That the Bill of the Queen was good enough and here is no mischief for if the Defendant will plead Not Guilty two several Venire Facias shall be awarded one into Middlesex the other into the County of Northampton Mich. 27 Eliz. In the Common Pleas. LXXXI Owen and Morgans Case GEorge Owen brought a Scire Facias against Morgan to have Execution of a Fine levied 8 Eliz. by which Fine the land was given to the Conusee and his heirs the Conusee rendred the same to the husband and wife and to the heirs of the body of the husband Note that the husband was the Conusor the remainder in Fee to the now Demandant and note that the Writ of Covenant was between the Conusee Plaintiff and the husband Deforceant without naming the wife And afterwards the husband suffered a common Recovery without naming of the wife Common Recovery the hushand and wife died without Issue and now Owen to whom the remainder was limited by the Fine brought a Scire Facias in bar of which the Recovery was pleaded It was argued by Shuttleworth Serjeant That the said Recovery had against the husband was a good bar Feme not party to the Writ of Covenant not bound by a Recovery and should bar the remainder and the wife ought not to be named in or party to the Recovery for that nothing accrued to her by the Fine because she was not party to the Writ of Covenant and to the Conusans vide 32 H. 8. Fines 108. None can take by the Fine but those who are named in the Writ of Covenant but every Stranger may take by way of Remainder Vide etiam 7 E. 3. Br. Fines 114. 6 E. 3. Fitz. Fines 117. 7 E. 3. Fitz. Scire Facias 136. It is said by Herle if such a Fine ut supra be taken it is good as long as it is in force LXXXII Sir Richard Lee and Arnolds Case Post 93. SIr Richard Lee Kt. seized of three Manors made a lease of them to Sir Nicholas Arnold for certain years reserving for the one Manor 5 l. and for the other Manor 10 l. and for the third Manor 10 l. upon condition that if the said rents or any of them or any part c. be behind a re-entry into all the Manors and afterwards he bargained and sold the reversion of one of the said Manors to William Winter in Fee and afterwards by Deed indented and inrolled bargained and sold the two other Manors and for the rent of one of the said Manors the Vendee did re-enter into all the Manors Manwood Here are several reservations Reservation of Rents upon a joynt Lease several rents and several leases for although that the words are joynt yet by construction they are become several as Land given to an Abbot and a Secular man although here be joynt words yet they are Tenants in Common Litt. 296. And if I sell to you two Horses the one for 5 l. and the other for 5 l. here are two several contracts the Parties to whom these reversions are assured ut supra are Assignees within the Statute of 32 H. 8. by which it is enacted that Assignees may take advantage of Conditions for such an Assignee is not meerly in by act of law as the Lord by Escheat and he is not such an Assignee but is in by conveyance The Lessor enters upon his Lessee Assigns and makes his Feoffment and the Lessee re-enters now the Feoffee is an Assignee and this condition is destroyed in part and continued in part Condition destroyed in part good in part If one hath Common in the land of another for 20 beasts and releases his Common for 10 beasts the Common for the residue remains but if he purchaseth part of the land in which he hath Common the whole Common is destroyed A Feoffment to two with warranty and one of them releases the warranty all the warranty is gone As to the condition for as much as it is not collateral but incident to the reversion it may be severed and is of the same nature as the rent and reversion A man possessed of lands for 20 years and seized of other lands in Fee Conditions divided leaseth all the land for 10 years reserving rent with clause of re-entry and dieth now the Heir hath a reversion for the land in fee and the executor for the other land so the condition is divided according to the reversion so if lands were given to one in general tail and others in special tail he thereof makes a lease rendring rent and dieth having several Issues inheritable to each tail now the condition shall go according to the rent and he conceived that the Grantee of parcel of the reversion is an Assignee within the said Statute Grantee of parcel of the Reversion is an Assignee within 32 H. 8. Of Conditions as if a Lease for years
of giving the Reversion by her Will to whom she pleased and such a Grantee shall be in by A. and his Will for A. hath given expresly to his wife for life and therefore by Implication she shall not have any further Estate But if an express Estate had not been appointed to the wife by the other words an Estate in Fee should have passed Mich. 19 Eliz. In the Common Pleas. CXI Sir Thomas Kemp and Windsors Case SIr Thomas Kemp was outlawed at the Suit of one Windsor who had against him four Capias utlagat ' and none of them were served and afterwards he sued out a fifth Capias It was moved by Mead that the said Sir Thomas keepeth open House and yet the Sheriff had not served the Capias Dyer The Sheriff may justifie to break the House to take his body and seize his Goods for the Queen for this Process is in Law at the Suit of the Queen but contrary where the Process is sued at the Suit of a Subject And the Iustices commanded Ford Prothonotary to make a special Capias for Body and Goods and a pain in the Writ of 100 l. upon the Sheriff to execute the Writ accordingly CXII Mich. 19 Eliz. In the Common Pleas. THis Case was moved by Anderson Serjeant at Law Improvement of Common if in case of Common appurtenant by Prescription without number the Lord of the waste might improve for it is not admeasurable therefore not improveable for the Common being without number the sufficiency cannot be proved Dyer and Manwood Iustices although it be without number yet it may be reduced to a certainty being by Prescription as the number of the Cattel and the best and most substantial Tenant of the said Tenement at any time within time of memory had kept upon the said waste and then the Plaintiff the Lord might improve leaving sufficient according to such Rate Mich. 19 Eliz. In the Common Pleas. CXIII The Earl of Derbys Case Debt not against the Husband upon a Contract by the Wife DEbt by a Merchant of London against the Earl of Derby and his Wife and declared upon a Contract for Silks and it appeared upon the Evidence that the Countess during the Coverture had bought of the Plaintiff certain Silks for her own wearing and for the mony which the Countess agreed to pay for the same the Action was brought It was the Opinion of Dyer Manwood and Mounion that the contract by the Wife during the Coverture should not bind the Husband but admit that the Husband should be bound yet this Action is not well brought against the Wife for she ought not to be mentioned in the Writ CXIV Mich. 19 Eliz. In the Kings Bench. Indictments ONe was indicted in the Country because he commanded J.S. to take up a Bridge being in Regia via leading from such a Town to such a Town and also the said J. S. was indicted for executing the command of the other Exception was taken to the first Indictment because no place of the commandment is alledged in the Indictment and for that cause the Indictment was taken insufficient although Mr. Plowden strongly insisted upon the contrary as in Trespass the Defendant justifies by the commandment of J. S. the same is good without any place of the commandment for in the first Case the commandment is traversable but contrary put by Mr. Plowden Vide 3 H. 7. 11. Markenfields Case Another Exception was taken to the Indictment because it is not there alledged that the Bridge was a common Bridge but because there was other words in the Indictment which supplyed the same scil in via Regia the Indictment was holden good enough CXV 19 Eliz. In the Common Pleas. IN a writ of Partition between Tenants in common upon the Statute of 20 Acres of Land the Defendant as to part scil 10 Acres pleaded Non tenet pro indiviso and as to the residue confessed the Partition and by Manwood and Ford chief Prothonotary the confession ought to be in the beginning of the Plea and Non tenet pro indiviso in the second place last so as that part of the Plea which agrees with the Demand ought to preceed the part which denies demand And the truth of the Case was that the Defendant had but 10 Acres in all and of them was sole seized Manwood If your Case be such you may safely plead to the whole Non tenet pro indiviso 20 Eliz. In the Common Pleas. CXVI Duffams Case A Man made a Lease by Deed indented for 20 years to begin after the expiration of a former Lease thereof made to one Duffam in an Action brought by the second Lessee against the Lessor the Lessor said there was no such Duffam in rerum natura at the time of the supposed Lease made to Duffam It was said that such a Plea did not lye for the Lessor Estoppel for he is estopped to say against the Indenture that no such Duffam was c. And also if no such person was then the first Lease was void and the second Lease should begin presently which Mounson and Manwood concesserunt And Manwood said that the Defendant should be estopped by the recital of the first Lease to say that no such Duffam was and although that the common ground is that a recital is not any estoppel yet where the recital is not material as it is here for the second Lease is to be begun upon the expiration of the Lease recited there is an estoppel Recital Trin. 29 Eliz. In the Common Pleas. CXVII Brown and Fulsbyes Case UPon the Statute of 5 Eliz. of Vsury the Case was this Stat. 5 Eliz. of Usury A. borrowed of B. 80 l. and was bound in an Obligation to pay to him 90 l. at the end of the year It was the Opinion of the Iustices that although the 90 l. was tendred and B. the Lender did tell the same yet if he take and except but of 80 l. it is not Vsury within the Statute to make a treble forfeiture but yet in that Case the Obligation it self is void CXVIII Trin. 29 Eliz. In the Exchequer NOte in the Case of the Tenants of Owning and Northmaston It was holden by Manwood Chief Baron That he who hath vesturam terrae cannot dig the Land. And Gent Baron said where many have Lot-Meadow to be divided every year by lot who shall have the Grass of such an Acre and who of such an Acre c. and so change every year according to Lots they have not any Freehold therein but only Vesturam terrae Trin. 32 Eliz. In the Exchequer CXIX Sir Walter Wallers Case 3 Leon. 259. Execution a Leon. 77. IN the Case of Sir Walter Waller it was moved if one hath Iudgment in Debt and thereupon within the year and day sueth a Capias ad satisfaciend although he doth not prosecute the same in two or three years yet when he pleaseth he may proceed