upon the Evidence Notwithstanding that the number set down in the plaint be by the plea of the Defendant quodam modo admitted and the lesser number surmised and the contrary not proved shall go in mitigation of the damages and the Iury shall conform their verdict in the right of damages according to the proof of the number notwithstanding that the number set forth in the plaint be not by the Plea denied by the Defendant and so it was put in ure in this Case for the Plaint was of the taking of one thousand Cattle but the proof extended but to eight hundred sixty five Note also in the same Plea it was holden that whereas one Chock was returned upon several Iuries in two several Courts at Westminster and both the Iuries are adjourned to one day now in which of the said two Courts the said Chock was sworn he shall be discharged of his attendance at the other Court the same day LV. Carters Case Mich. 28 29 Eliz. In the Common Pleas. CArter brought an Action upon the Case against I.S. and declared Assumpsit that A. was possessed of certain Lands for years the Inheritance thereof being in the Wife of the Plaintiff upon which Lease a Rent was reserved The Defendant in consideration that the Plaintiff would procure the said A. to assign the said Lease to the Defendant promised to pay the said Rent to the Plaintiff for all the residue of the Term It was objected that upon this matter the Action doth not lie because that the Plaintiff hath a higher remedy scil an Action of Debt or Distress but the opinion of the whole Court was that the Action did lie for here upon the promise an Action is given to the Husband alone in his own right whereas the Rent is due to the Husband in the right of his Wife in its nature and the Rent is also to be paid for the Land. But upon this Assumpsit it is payable to the person of the Husband And afterwards Iudgment was given for the Plaintiff LVI Kimpton and Bellamyes Case Mich. 28 29 Eliz. In the Common Pleas. GEorge Kimpton brought a Replevin against Wood and Bellamy Replevin who make Conusance as Baylies to George Burgain for Damage Feasance The Plaintiff in Bar of the Conusance sheweth That he himself and all those whose estate he hath in one hundred and forty Acres of Land time out of mind c. have had common for all manner of Cattle in six Acres of Lands whereof the place where c. is parcel and so put in his Cattle c. against which the Defendants say that the Plaintiff c. had common in forty Acres of Land whereof the said six Acres are parcel all lying in Communi campo and that the Plaintiff a long time before the taking had purchased two Acres parcel of the said forty Acres c. upon which there was a demurrer in Law It was argued by Serjeant Shuttleworth that the Replication to the Bar to the avowry is not good for in the Bar to the Avowry the Plaintiff hath shewed that he hath common in six Acres and the same shall be intended common in six acres only for common in forty acres cannot be the common in six acres as 35 H. 6. 38. In Debt for Rent reserved upon a Lease for years the Plaintiff declared that he leased to the Defendant ten acres of Land rendring the Rent in demand the Defendant pleaded that the Plaintiff leased to him the said ten acres and also such a Rectory rendring the same Rent the same is no plea without traverse absque hoc that he leased the ten acres only See Dyer 29 H. 8. 32. And the whole Court was clear of opinion that for want of such traverse Traverse the plea is not good for by Periam the Common supposed in the bar to the Conusans out of the six acres cannot be intended the Common supposed in the Replication scil out of the forty acres And by him if in Trespass the Defendant justifie by reason of Common in six acres of Land upon which the parties are at issue and the Defendant in Evidence shews that he hath common in forty acres whereof the said six acres are parcel the same doth not maintain his title but the issue shall be found against him Post 80 81. But by the Lord Anderson because that this Demurrer is general the other party shall not take advantage of that defect of pleading for the want of the Traverse and that by reason of the Statute of 27 Eliz. For Traverse is but matter of form and the want of the same shall not prejudice the other party in point of Iudgment but the Iudges ought to judge upon the substance and not upon the manner and form of the pleading And as to the matter of the Common Extinguishment the Court was clear of opinion that by the purchase of the said two acres the whole Common was gone LVII Knights Case Mich. 28 29 Eliz. In the Common Pleas. KNight brought Debt against three Executors and now surmised by his Counsel that one of the Executors is dead pendant the Writ Debt and prayed the opinion of the Court if the Writ should thereby abate or not for by some it is not like where a Writ is brought against two Executors Abatement of Writ for there if any of them dieth pendant the Writ it shall abate for now the plural number is gone for there is but one Executor but in our Case the plural number continues But notwithstanding that the Court was clear of opinion that the Writ should abate Wherefore the Plaintiff seeing the opinion of the Court prayed that upon his surmise aforesaid he might have a new Writ by Iourneys Accounts which was granted to him The Queen and Middletons Case Mich. 28 29 Eliz. In the Common Pleas. Quare Imped THe Queen brought a Quare Impedit against Middleton and counted that W. Lord Say was seised of the Manor of Bedington in the County of Hertford to which Manor the advowson of the Church was appendant ad Ecclesiam praedict praesentavit Coo Clericum suum and afterwards died seised having issue two Daughters Mary married to the Earl of Essex and Ann to the Lord Mountjoy who make partition and the said Manor of Bedington inter alia was allotted to the said Mary for her part and afterwards the said Earl and Mary died having issue Ann who took to Husband the Marquess of Northampton and afterwards 33 H. 8. a Fine was levyed of the said Manor inter c. Querent and the said Marquess and Ann Deforceants by which Fine the said Manor was granted and rendred to the said Marquess for term of his life the remainder to the said Ann his Wife in tail the remainder over to Hen. the eighth in Fee the Marquess is attainted of High Treason by which the King seised and afterwards Ann died without issue after which
petit quod inquiratur per patriam praedict Brett similiter It was moved that the parties should replead for this matter upon which they are at Issue scil the appearance is not triable by Iury but by the Record And the Court was clear of opinion that the parties should replead for the cause aforesaid And it was moved by the Lord Anderson that if A. be bound to appear in the Kings Bench at such a day and A. at the said days goe to the Court but there no process is returned then the party may go to one of the chief Clerks of the Court and pray him to take a Note of his appearance And by Nelson we have an acient form of entry of such Appearance in such Cases Ad hunc diem venit I. S. propter indemnitatem suam Manucaptorum suorum petit quod comparentia sua in Curia hic recordetur And see for the same 38 H. 6. 17. And afterwards the Lord Anderson inspecto Rotulo ex assensu sociorum awarded a Repleader And so by Nelson it hath been done oftentimes here before and put in ure The same Law is where at the day of appearance no Court is holden or the Iustices do not come c. he who was bound to appear ought to have an Appearance recorded in such manner as it may be and if the other party pleadeth Nul tiel Record it behoveth that the Defendant have the Record ready at his peril for this Court cannot write to the Iustices of the Kings Bench for to certifie a Record hither CXV Baxter and Bales Case Mich. 29 30 Eliz. In the Common Pleas. Debt not extinct by administration BAxter brought Debt upon a Bond as Executor of I. against Bale who pleaded that the Plaintiff after the death of the Testator was cited to appear before the Ordinary or his Commissary to prove the Will of the said I. and at the day of his appearance he made default upon which the Ordinary committed Letters of Administration to the Defendant by force of which he did administer so the debt is extinct c. but the whole Court was clear of opinion that the debt was not extinct for now by the probate of the Will the administration is defeated and although the Executor made default at the day which he had by the Citation before the Ordinary yet thereby he is not absolutely debarred but that he may resort to the proving of the Will whensoever he pleaseth But if he had appeared and renounced the Executorship it had been otherwise and the debt is not extinct by the Administration in the mean time CXVI Mich. 29 30 Eliz. In the Common Pleas. IN a Franchise the parties are at Issue upon a matter triable out of the Franchise And it was moved if now the Record should be sent into the Common Pleas and there tryed and after trial sent back into the Franchise Which Periam and Anderson utterly denied and by Periam there is no reason that we should be their Ministers to try Issues joyned before them And it is not like 2 Len. 37. where in a Liberty or Franchise a Forrein Voucher is to warrant Lands in such cases we shall determine the Warranty but that is by a special Statute of Glocester cap. 12. And Nelson Prothonotary said that such an Issue was tryed here of late Quod nota CXVII The Earl of Arundel and the Lord Dacres Case Mich. 29 30 Eliz. At Serjeants Inne PHilip Earl of Arundel and the Lord William Howard his Brother marryed the Daughters and Co-heirs of the late Lord Dacres And now came Francis Lord Dacres as heir male of the said Family and claimed the Inheritance c. And after long sute betwixt both parties they submitted themselves to the award of Gilbert Lord Talbot and of Arthur Lord Grey of Wilton and Windham and Periam Iustices And before them at Serjeants Inne the matter was well debated by the Council learned on both sides and as unto Greistock Lands parcel of the Lands in question the Case was That Tenant in tail makes a Feoffment in fee unto the use of himself for his life the Remainder in tail to his eldest Son with divers Remainders over with a Proviso that if any of the Entailees do any act to interrupt the course of any entail limited by the said Conveyance that then the use limited to such person should cease and go to him who is next inheritable And afterwards Tenant in tail dieth his eldest Son to whom the use in tail was first limited entreth and doth an Act against the said Proviso and yet held himself in and made Leases the Lessees enter the Lessor dieth seised his Heir being within age and in ward to the Queen It was holden by Shutleworth Serjeant Yelverton Godfrey Owen and Coke who were of Council with the Heirs general of the Lord Dacres that here is a Remitter for by this Act against the Proviso the use Remitter and so the possession doth accrue to the enfant Son of him to whom the use in tail was limited by the Tenant in tail Then when the Tenant in tail after his said Feoffment holds himself in this is a disseissin for a Tenancy by sufferance cannot be after the cesser of an estate of Inheritance But admit that he be but a Tenant at sufferance Hâ—b 255. Dy. 54. yet when he makes Leases for years the same is clearly a disseisin and then upon the whole matter a Remitter and although the Enfant taketh by the Statute yet the right of the tail descending to him afterwards by the death of his Father doth remit him as if Tenant in tail maketh a Feoffment in fee to the use of himself for life the Remainder in tail to his eldest Son inheritable to the first intail notwithstanding that the eldest Son takes his Remainder by the Statute and so be in â—â— force thereof yet when by the death of his Father the right of the Entail descends to him he is remitted CXVIII Butler and Ayres Case Mich. 29 30 Eliz. In the Common Pleas. Dower BUtler and his Wife brought a Writ of Dower against Thomas Ayre Son and Heir of Bartholmew Ayre first Husband of the said Margaret Wife of the Plaintiff and demanded Dower of Lands in A. and B the Tenant pleaded never seised que Dower and the Iury found that the said Bartholmew was seised during the Coverture de omnibus tenementis infra script preterquam the Tenements in sic ut dicta Margareta dotari potuit Exception was taken to this Verdict because that this preterquam c. doth confound the Verdict To which it was said by the Court that the preterquam is idle and surplusage for it is of another thing than that which is in demand and the seisin of the first Husband of Lands in A. and B. is confessed and the preterquam works nothing Another matter was objected because here the Iury have assessed damages
and Pinfolds case 24 p Lodge and Luddingtons case 26 p Lassels case 28 p Lepur and Wrothes case 44 p Lewknor and Fords case 62 p Leigh and Hamwers case 67 p Liveseys case 106 p Littleton and Perns case 186 p Lee and Maddox case 235 p L. Lumley and Fords case 263 p Long and Hemmings case 289 p Lancasters case 291 p Linacres case 313 p Lancaster and Lucas case 316 p Lacies case 363 p Lodges case 376 p Lees case 387 p Lee and Curetons case 412 p Lacy and Fishers case 413 p Loves case 421 p Lemons case 427 p Leigh and Okeleys case 438 p M. 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LOrd Norris and Braybrooks case 28 p Nash and Edwards case 155 p Nash and Mollins case 325 p Norwood and Dennis case 455 p O. OLdfeild and Wilmers case 194 p Osbon and Kirtons case 258 p Offley and Sattingstons case 321 p Ognel and Underwoods case 339 p Ognel and Sheriffs of London 374 p Oglethorp and Hides case 430 p P. LOrd Paget and Sir Walter Ashtons case 4 p Lord Paget and the Bishop of Coventries case 9 p Punsany and Leaders case 14 p Parmort and Griffins case 47 p Partridge and Patridges case 48 p Pendleton and Gunstons case 60 p Potter and Steddals case 66 p Parson of Facknams case 67 p Prowse and Caries case 131 p Pearl and Edwards case 134 p Pawlet and Lawrences case 138 p Peirce and Leversuches case 163 p Page and Jordans case 165 p Piers and Hoes case 171 p Pierce and Howes case 179 p Palmer and Smalebrooks case 180 p Provost of Queens Colledge case 183 p Park and Mosses case 200 p Pexhals case 156 p Palmer and Thorps case 239 p Palmer and Knowles case 247 p Petty and Trivilians case 276 p Pagets case 284 p Palmes and Bishop of Peterboroughs case 312 p Pet and Basdens case 318 p Page and Fawcets case 328 p Pendleton and Haw's case 175 p Pawley and Siers case 370 p Penruddock and Newmans case 378 p Perry and Alleins case 420 p Pett and Callys case 422 p Piggot and Harringtons case 445 p Q. QUeen and Lord Vaux case 49 p Queen and the Bishop of Londons case 50 p Queen and Middletons case 58 p Queen and Lewes and Greens case 162 p Queen and Bishop of Canterburies case 190 p Queen and Buckberds case 207 p Queen and the Bishop of Canterburie and Fanes case 280 p Queen and the Bishop of Yorks Case 307 p Queen and Braybrooks case 364 p Queen and the Dean of Christchurch case 399 p R. REaresby and Rearesbies case 16 p Richards and Bertletts case 23 p Rumney and Eves case 128 p Rivet and Rivets case 159 p Read and Nashes case 205 p Read and Johnsons case 217 p Rockwood and Rockwoods case 275 p Rigden and Palmers case 277 p Russel and Pratts case 278 p Randal and Browns case 339 p Russell and Handfords case 368 p Rotchesters case 380 p Rolston and Chambers case 382 p Ruddoll and Millers case 409 p Rawlins case 416 p Rider and Cobbams case 447 p S. STonely and Bracebridges case 10 p Sutton and Dowses case 13 p Smith and Peazes case 21 p Stacie and Carters case 30 p Lord Sturtons case 33 p Searches case 93 p Smith and Kirfoots case 97 p Savell and Woods case 122 p Sulhard and Everets case 126 p Stebbs and Goodlacks case 127 p Saint John and Pettits case 129 p Staffords case 151 p Samford and Wards case 152 p Stamp and Hutchins case 153 p Stone and Withypolls case 156 p Smith and Smiths case 159 p Stretton and Taylors case 161 p Skipwiths case 163 p Severen and Clarks case 164 p Leonard Sturtons case 171 p Stransham and Medcalfes case 177 p Stephens case 188 p Smith and Bustards case 198 p Schollers of All-souls and Tamworths case 212 p Seaman and Brownings case 223 p Slywright and Pages case 231 p Same 's and Paines case 233 p Salloway and Lusons case 236 p Smith and Lanes case 237 p Sherly and Albanies case 240 p Sweeper and Randalls case 250 p Slugge and the Bishop of Landaffs case 255 p Smith and Edmunds case 291 p Steed and Courtneys case 265 p Smalwood and the Bishop of Lichfeilds case 284 p Sutton and Hallowaies case 286 p Somes case 297 p Sheldens case 326 p Sly and Mordants case 333 p Strait and Braggs case 338 p Sherewood and Nonnes case 339 p Sybthorp and Turners case 206 p Smith and Hitchcocks case 340 p Shaw and Nortons case 362 p Lord Staffords case 396 p Short and Shorts case 389 p Southcotes case 395 p Symms and VVestcotes case 410 p Stile and Millers case 411 p Scovel and Cavells case 446 p Stevensons case 457 p Sovers case 461 p Sutton and Danses case 467 p T. TReshams case 11 p Tringe and Lewes case 20 p Taylor and Moores case 41 p Troublefield and Troublefields case 46 p Tacker and Elmers case 90 p Toff and Tompkins case 172 p Tempest and Mallets case 246 p Thetford and Thetfords case 274 p Thetford and Thetfords case 283 p Tillocks and Holts case 323 p Trupenies case 330 p Thomas and VVards case 331 p Tedcastel and Halliwells case 344 p Tooly and Prestons case 406 p Trivilians case 414 p Tracy and Ives case 431 p Trussels case 460 p U. VPton and Wells case 202 p Vandrink and Archers case 304 p Vaughan and Alcocks case 305 p Underhil and Savoyes case 442 p W. WAde and Bemboes case 3 p Withy and Sanders case 29 p Wates and Jourdains case 37 p Watkins and Astwichs case 43 p Wilshalge and Davidges case 52 p VVood and Fosters case 54 p VValker and Nevills case 71 p Wiseman and Wisemans case 73 p Wakefords case 135 p VVilks and Prestons case 140 p VVheeler and Twogoods case 160 p VVaynemans case 172 p VVignal and Brookes case 177 p VVooden and Hazells case 184 p VVard and Blunts case
of the said Manor of Hockley seased the same to Edmund Terrel for years exceptis Reservat grossis arboribus super praemissis crescentibus existentibus Proviso Conditions that if the said Lessee his Executors or Assigns shall do any voluntary Wast in any of the Premisses before demised that then the said demise shall be void and accounted none in Law the said King and Queen after that lease grant the Reversion to the Lord Rich and his Heirs the Lessee cuts down certain great Trees which at the time of the demise were not great but little Trees but after tractu temporis became great and at the time of the cutting down were great upon whom the Lady Rich Wife and Widow of the said Lord Rich being Tenant in Dower the said Manor inter alia being assigned to her in Dower did enter for the condition broken It was moved If the exception did extend to the trees which at the time of the demise were but little trees but afterwards at the time of their cutting down were become great for if the exception do extend to such Trees then upon the matter they were not demised and if so then wast cannot be assigned in the cutting down of them and then by the cutting of them the condition is not broken But if the exception shall be construed to extend to such Trees only which were great Tempore dimissionis then those Trees in which c are demised and by the cutting down of them the condition is broken And the Lord Anderson was of opinion that the exception did extend to Trees which at any time dimissionis praedict became great Where the Tenant in Dower shall take advantage of a condition although at the time of the demise they were but little so as upon the matter such Trees were never demised and so the condition doth not extend to them otherwise it should be if the words had been modo crescentibus existentibus Another matter was moved because if the Lady Rich being Tenant in Dower and so in by the Law not by the party and so not privy nor as Assignee could enter for the condition broken And the Court was clear of opinion that because that the words of the condition are Quando dimissio praedict erit vacua c. and no clause of reentry is reserved so that privity is not requisite the Lady Rich shall take advantage of the condition 11 H. 17. Where the words of a Lease are that upon the not going to Rome that the Lease shall cease it was holden that the Grantee of the Reversion by the common Law should take advantage of such a condition contrary where the condition is conceived in words of re-entry 21 H. 7. 12. It was moved further that here is not any voluntary wast in the Lessee as to the condition Dyer 281. Owen 93. because done by a stranger and not by the Lessee himself and for that the condition is not broken only the Lessee is subject unto an Action of Wast otherwise if the Lessee had expresly commanded the Vendee to cut them down or had given to him express authority The sale was All his Woods growing c. LXXX Gill and Harewoods Case Pasch 29 Eliz. In the Common Pleas. GIll brought an Action upon the Case against Harewood and declared Assumpsit that where the Defendant was endebted to the Plaintiff in such a â—um and shewed how the Defendant in consideration that the Plaintiff per parvum tempus deferret diem solutionis c. did promise to pay And upon Non Assumpsit pleaded it was found for the Plaintiff and it was moved in arrest of Iudgment that here is not any consideration for no time is limited for the forbearance but generally parvum tempus which cannot be any commodity to the Defendant for the same may be but punctum temporis c. But the exception was not allowed for the Debt in it self is a sufficient consideration LXXXI Pasch 29 Eliz. In the Common Pleas. 2 Co. 74. 5 Co. 38. 8 Co. 155. FEnner Serjeant would have drawn a Fine which was by Dedimus Potestatem and the Fine was to two and their heirs but the Court would not receive such Fine for the incertainty of the Inheritance which always in case of Fine ought to be reposed in a person certain and not left to uncertainty of the Survivor and the said Serjeant prayed presently that the said Fine be received at the peril of the Conusees but the same was denied him by the whole Court. LXXXII Mascals Case Mich. 29 30 Eliz. In Communi Banco Covenant 2 Cro. 644. MAscal leased a House to A. for years by Indenture by which A. covenanted with Mascal to repair the House Leased and that it should be lawful for Mascal his Heirs and Assigns to enter into the House to see in what plight for matter of Reparation the said House stood and if upon any such view any default should be found in the not repairing of it and thereof warning be given to A. his Executors c. Then within four months after such warning such default should be amended the House in the default of the Lessee became ruinous Mascal granted the Reversion over in Fee to one Carre who upon view of the House gave warning to A. of the default c. which is not repayred upon which Carre as Assignee of Mascal brought an Action of Covenant against A. It was moved by Fenner Serjeant that the Action did not lye because the House became ruinous before his interest in the Reversion But the opinion of the whole Court was against him for that the Action is not conceived upon the ruinous estate of the House or for the committing of Waste but for the not repayring of it within the time appointed by the Covenant after the warning so as it is not material within what time the House became ruinous but within what time the warning was given and the default of the Reparation did happen LXXXIII Mich. 29 30 Eliz. In Communi Banco Dower IN a Writ of Dower brought by a Woman of the third part of certain Lands c. The Tenant pleaded That the Lands of which Dower is demanded are of the nature of Gavel-kind and that the custom of such Land is that Dower ought to be demanded of the moity of it and not of the third part upon which the Demandant did demur And the opinion of Windham and Anderson Iustices was That such a Woman of such Land might at her pleasure demand her Dower either according to the Custom 1 Cro. 825. Poph. 133. or according to the common Law for by Anderson the common Law was before the Custom quod quaere And by Windham if the Demandant here recover her Dower according to the common Law yet if she taketh another Husband she shall lose her Dower as if she had been endowed according to the Custom Coke an Apprentice
Fisher and Boys A Colledge in Oxford was by Act of Parliament incorporated by the Name of Warden and Scholars Domus sive Collegii Scholarium de Merton in universitate Oxoniae and they make a Lease by the Name Custos Domus sive Collegii de Merton in Oxonia and Scholares ejusdum Domus and the variance in that point because in the very name of the Foundation Domus five Collegii Scholarium de Merton and in the usurped Name in the Lease Domus sive Collegii de Merton was holden material and the true name was de Merton in universitate Oxoniae but in the Lease in Oxonia only leaving out the word Vniversity and the same was holden a variance in substance For Oxford doth contain in it self the Vniversity which is a thing of it self and also the City is a thing by it self and it may be that there is a Colledge in the City called Merton Colledge and also a Colledge which is called by such Name in the Vniversity and so in our Case it may be that there is an Hospital which is called the Savoy and also another which is Le Savoy and then the Court shall be enveigled c. And in the end of the Argument the Lord Treasurer which was the Lord Burleigh put this Case which was adjudged in his time The Guild of Boston in Lincolnshire was incorporated by the Name of the Guild of St. Nicholas and our Lady the Virgin Mary c. and they made a Lease for years by the Name of the Guild of our Lady the Virgin and St. Nicholas Religione quadam motus ut nomen Virginis Mariae in charta dimissionis proponeretur nomini Sancti Nicholai and it was adjudged a void Lease for the variance aforesaid And afterwards at another day the matter was argued by Atkinson on the part of the Defendant Starkey 21 E. 4. 56. saith That the Name of the Corporation by which it is incorporated is as properly the Name of a Corporation as the Name of Baptism is the Name of a single and individual person and yet there is a great difference in the misprision of them for the Name of Baptism doth consist of one word and therefore it cannot admit of any variance but the name of a Corporation doth consist of many words in which case variance in words which are supplyed by other words and not in matter of substance shall not hurt and that hearing is notably discussed in the case of the Cooks of London cited before by Godfrey Four things are to be considered in the Name of a Corporation which are of the Essence and Substance of it First the persons incorporated of which the Corporation doth consist as here the Master and Chaplains de Savoy Secondly The quality of the Corporation as Dean and Chapter Mayor and Commonalty Thirdly the Patron or Founder as Merton Colledge Fourthly The Place whereupon the Corporation is founded As to this last point see 31 E. 3. 28. and fo 15 by Knivet and see 6 Eliz. Dyer King H. 8. erected the Dean and Prebend of Chester by these words scil Decanus et Capit. Cathedralis Ecclesiae Christi et Sanctae Mariae Virginis Cestriae And afterwards by Letters Patents gave to the said Dean and Chapter certain Manors Decano et Capitulo Ecclesiae Cathedralis Christi et Sanctae Mariae Virginis by us before erected and that grant was holden void because that the place where c. is not expressed in the said Letters Patents for Cestria is the local place of the Incorporation And as to the Objection made upon the word de that this word de goeth only to part and vocat goes to the whole and so here is a great difference the same is not any reason for this word de extends as well to the whole as to part As a Rent granted percipiend de Manerio de D. the same shall go to the whole Mannor 5 E. 4 5. ad respondendum I. Abbati Monasterii Sanctae Mariae Ebor. where the Obligation was Abbati Monasterii Sanctae Mariae Virginis extra Muros Ebor. and yet the Writ was well enough notwithstanding such variance a fortiori in the case of a conveyance and Interest And I conceive that it appeareth in the Record That the Lease given in evidence of the part of the Defendant is a Lease made by the Master and Chaplains of the Hospital of the Savoy for it is found by verdict That King Henry the eighth upon the Site of the Manour of Savoy betwixt the house of the Bishop of Worcester and the house of the Bishop of Carlisle and that it was incorporated by the Name c. and that afterwards Q. Mary by her Letters Patents reciting the foundation of the said Hospital called the Savoy and lamenting the Ruin of it being surrendred in the time of E. 6. did restore it by which it appeareth That the Hospital of the Savoy and Hospital called the Savoy is one and the same in respect of the Bounds Foundation and Situation And in the whole course of our Books no case can be found That any Corporations have avoided their own acts by such cause of Misnosmer nor of such matter is any question moved in our Books And as to that which hath been objected That although the Iudges in their private knowledge well know That the House de le Savoy and the House vocat the Savoy be all one yet they ought not to judge according to such their private knowledge but according to their judicial knowledge which they have out of the Record I conceive That the Iudges of necessity ought to use in such cases their private knowledge as where Misnosmer of a Colledge was objected viz. Trinity Colledge in Cambridge where it was incorporated by the Name of Masters Fellows and Scholars Collegii Sanctae individuae Trin. and they made a Lease by the Name of Master Fellows and Scholars of the Colledge of Trinity the same was holden a good Lease for the Iudges knew well enough That this word Trinity doth imply in it self Sancta individua but by what knowledge not by their judicial knowledge but by their private knowledge So in our case Egerton the Queens Sollicitor to the contrary It is a clear and plain Rule in our Law That the name of a Corporation is as a name of Baptism to a natural man and if there be any difference I conceive that the Law requires more strict certainty in the name of a Corporation than in the Name of any particular person For a name is more necessary to a Corporation than to another for when an infant is born he is presently a perfect creature before any name given him and the giving of the Name is not a matter of necessity but of policy for distinction c. but in the case of a Corporation The Name is the substance and essence of it and it is not a Body before a Name be imposed upon it and therefore in the
but not the use wherefore the use descends after to the Son and Heir And in our case if the Wife and Son had died without issue in the life of the Father all should be in the Father and his Heirs And if a man make a Feoffment in Fee unto the use of his last Will it shall be unto the use of the Feoffor and his Heirs and in our case this limitation to the Right Heirs of the Conusor is as if no mention had been made of it and then it should be to the Father and his Heirs And afterwards it was adjudged That it was a Reversion and no Remainder Co. Inst 22. b. Post 88. and by Gawdy This Limitation To his Right Heirs is meerly void Wray As if he had made a Feoffment to the use of one for life without further Limitation CCLVII Holland and Franklins Case Hill. 31 Eliz. Rot. 723. In the Kings Bench. IN a Replevin Replevin Owen 138 1â—9 2 Len. 121. 3 Len. 175. the Defendant made Conusans as Bailiff to Thomas Lord Howard and shewed How that the Prioress of Holliwel was seised oâ— the Manor of Prior in her demesâ—e as of Fee c. and 4 Nov. 19 H. 8. by Deed enrolled sold unto the Lord Audley the said Manor who died having issue a Daughter who took to Husband Thomas late Duke of Norfolk who had issue the said Lord Howard and that after their death the said Manor descended c. The Plaintiff in bar of the Conusans shewed That the said Deed was primo deliberatum 4 Nov. 30 H. 8. And that mean betwixt the date and the delivery scil 12 October The said Prioress leased the said Manor to one A. for ninety nine years and conveyed the Term to the Plaintiff absque hoc that the Prioress bargained and sold the said Manor to the Lord Audley ante dimissionem praedict dicto A. fact upon which there was a Demurrer Cook Averment This Averment of another delivery than the Deed doth purport against the Deed enrolled shall not be received no more than a man may aver That a Recognizance was acknowledged at another day c. for every Record imports a truth in it and express averment shall not be received against it but a man may confess and avoid See 7 H. 7. 4. It cannot be assigned for Error that in a Redisseisin the Sheriff non accessit ad tenementa as he hath retorned for that is against his Retorn which is Recorded and the date of the Record is the principal part of it which see 37 H. 6. 21. by all the Iustices That matter of Record hath always relation to the date and not to the Delivery contrary of a Deed which is not of Record for the same shall have relation always to the delivery and see 39 H. 6. 32. by all the Iustices Relation of Records and Deeds averment against a Deed enrolled that it was not delivered shall not be received so in the Case betwixt Ludford and Gretton 19 Eliz. Plowd 149. It is holden by all the Iustices That the Kings Charter hath relation to the time of the date because that matters of Record carry in them by presumtion of Law for the Highness of them truth and therefore one cannot say That such a Charter was made or delivered at another day than at that at which it bears date So of a Recognizance Statute c. but against Letters Patents a man may say Non concessit for perhaps nothing passeth thereby Averment and then it is not contrary to the Record Atkinson contrary I confess that the party himself whose Deed it was cannot take a direct averment against a Deed enrolled but he may confess and avoid it so as he leave it a Record as if a Fine were levyed by another in my name of my Land I am bound by it but if the Fine were levyed by another in my name I am not bound for I may confess and avoid it and yet leave the Record good but here the Plaintiff is a stranger to his Deed enrolled And some Records shall bind all persons as Certificates of Bastardy c. for all may give evidence in such case 2 H. 5. Estoppel 91. A. makes a Feoffment in Fee Co. 3 Inst 230 231. and afterwards before the Coroner confesseth a Felony supposed to done before the Feoffment the Feoffee shall have an averment against it Egerton the Queens Solicitor contrary Matter of Record cannot be gainsaid in the point or in matter of implication and therefore against that he cannot say Non est factum 16 E. 3. Abb. 13. A Deed enrolled in pais cannot be denyed 24 E. 3. 64. A Deed enrolled is not a Record but a thing recorded which cannot be denyed And here this plea is a violent averment against the Deed for it amounts to as much as if he had said Not his Deed at the time of the enrollment but I confess that such a Deed may be avoided by a thing which stands with the Deed by matter out of the Deed. It hath been objected That this acknowledging of the Deed ought to be made by Actornâ—y and therefore made in person it is not any acknowledgment and so against such acknowledgment Non est factum may be pleaded and a Fine or confession in a Writ of annuity upon prescription or in assise shall bind the house See 16 E. 3. Abb. 13. That a fine Recognizance and Covenant of Record shall bind the House in such case And the acknowledgment of the Prioress alone will serve in this Case for the Nuns are as dead persons And posito that a Master of the Chancery comes into the Chapter-house and receives such an acknowledgment I conceive that it is good enough It hath been objected That here the Plaintiff is not estopped to take the averment because we have not pleaded our matter by way of Estoppel certainly the same needs not here for the Record it self carries the Estoppel with it and the truth appeareth by the Record and the Court ought to take hold of it Godfrey contrary A Deed enrolled may be avoided by matter which is not contrary to the Record as 19 R. 2. Estoppel 281. in sur cui in vita a Release of the Mother of the Demandant with warranty was pleaded in Bar and that enrolled To which the Demandant said That at the time of the Release supposed to be made our mother had a husband one F. and so the Deed was void and so avoided the Deed by matter dehors scil Coverture so of enfancy but not by a general averment A man no lettered shall avoid a Deed enrolled by such special matter so an obligation made against the Statute of 23 H. 6. and these special matters shall utterly avoid the Deeds against whom they are pleaded but in our case we do confess the Deed to be good to some intent 1 Len. 84. scil after our Lease expired for which our case is the better
covenanteth and granteth to the others eorum utrique to make assurance and there it was holden that the word uterque doth amount to quilibet Wray Admit it shall be so taken in a Bond yet it shall not be so taken in an Indictment As if a man make a Lease for years rendring Rent payable at the day of St. Martin although there be two days of St. Martin in the year yet the reservation is good and the Rent shall be taken payable at the most usual day of St. Martin there in the Country But in an Indictment if an offence he laid to be done on St. Martins day without shewing which in certain it is not good Fenner The word uterque is matter of surplusage and therefore shall not hurt the Indictment CCCXXVII Blunt and Whiteacres Case Mich. 32 33 Eliz. In the Kings Bench. Error A Writ of Error was brought upon a Iudgment given in the Common Pleas in a Replevin where the Defendant did avow as Fermor of the Manor of F. in the County of Berks to St. Johns Colledge in Oxford and laid a Prescription there in him and his Fermors to distrain for all Amercements in the Court of the said Manor Amercement and shewed that the Plaintiff in the Replevin was presented by the Homage for not repairing of a House being a customary Tenant of the said Manor according to a pain imposed upon him at a former Court for which he was amerced by the Steward to ten shillings and was also presented for not ringing of his Swine for which he was amerced three shillings four pence and for these Amercements he distrained And upon Nihil dicit Iudgment was given for the Avowant to have return upon which a Writ of Error was brought And Error assigned in that there is not any Prescription laid in the Avowry for the Lord to amerce the Tenants and of common Right he cannot do it See 48 E. 3. And such Amercement is Extortion for the Lord cannot be his own Iudge and therefore he ought to enable himself to distrain by Prescription Another Error because the Fine is laid to be assessed by the Steward 1 Cro. 748. 886. whereas by the Law it ought to be by the Suitors for they are Iudges and not the Steward Another because that in the Avowry it is set down quod praesentatum fuit that he had not repaired a certain House but he doth not say in facto categorice c. that he had not repaired for that is matter traversable 4. Here is no offence for a Copy-holder is not bound to repair by the Common Law if it be not by Prescription for he cannot have House-boot upon the Land as a Termor may if it be not alledged a custom Fenner The Steward may assess Fines for a contempt but not Amercements if not by Prescription Gawdy The Lord of a Mannor cannot assess Amercements for a Trespass done to himself upon his own Lands but otherwise it is of a common Trespass or a Trespass done in the Land of another but for the Distress he ought to prescribe and the Iudgment was reversed CCCXXVIII Page and Fawcets Case Pasch 29 Eliz. Rot. 121. In the Kings Bench. Error 3 Cro. 227. ERror was brought upon a Iudgment given in Lyn where by the Record it appeareth that they prescribe to hold Plea every Wednesday and it appeared upon the said Record that the Court was holden 16 Feb. 26 Eliz. which was dies Dominicus and that was not assigned for Error in the Record but after in Nullo est erratum pleaded it was assigned at the Bar And Almanacks were shewed to the Court in proof of it and it was holden clearly to be Error but the doubt was if it should be tried by Iury or by the Almanacks and it was said that the Iustices might judicially take notice of Almanacks and be informed by them and that was the Case of one Robert in the time of the Lord Catline and by Coke so was the Case betwixt Galery and Bunbury and afterwards the Iudgment was reversed CCCXXIX Geofries and Coites Case Trin. 33 Eliz. In the Kings Bench. IT was found by special Verdict 1 Cro. 25â— that one Avice Trivilian was Tenant for life the Remainder to her Son in tail the Remainder over Tenant for life and he in the Remainder in tail make a Lease for life the Remainder for life rendring Rent Tenant for life dieth he in the Remainder dieth and his Son accepteth of the Rent of the Tenant for life in possession who dieth The Issue in tail entreth he in the Remainder for life entreth c. And it was conceived that this acceptance of the Rent of the Lessee for life doth affirm also the Remainder See Litt. Sect. 521. and such was the opinion of Gawdy and Fenner Iustices CCCXXX The Lord Mordant and Vaux Case Pasch 33 Eliz. In the Kings Bench. THe Lord Mordant brought an Action of Trespass against George Vaux and declared of a Trespass done in quodam loco 1 Inst 225. 1 Cro. 269. called N. parcel of the Manor of Hawarden The Case was William Lord Vaux was seised thereof and thereof levied a Fine to the use of the Lord Vaux which now is for life and after his decease to the use of Ann and Muriel Daughters of the Lord Vaux and their Assigns until Ambrose Vaux should return from the parts beyond the Seas and should come to the Age of 21 years or dye if they should so long live And after the return of Ambrose from beyond the Seas and the age of 21 years or death whichsoever of the said days or times should first happen to the use of the said Ambrose and the Heirs of his body begotten with divers Remainders over Ambrose returned Plow Com. 376. 2. Ante 18. 76. and 31 Eliz. before he came of full age for it is not pleaded that he was of full age levied a Fine to the use of George Vaux the Defendant in tail with divers Remainders over Afterwards the Lord Vaux being Tenant for life enfeoffed the Lord Mordant in Fee upon whom the said George Vaux entred for a forfeiture upon which Entry the Lord Mordant brought the Action Buck argued for the Plaintiff Amb. Vaux had nothing in the Lands in question until his return from beyond the Seas and his full age and the estate doth not begin until both be past and he said that no use did arise to Ambrose until the time incurred for the time of the beginning is uncertain and upon a Contingent as 13 Eliz. Dyer 301. A. makes a Feoffment in fee to the use of himself for life and after to the use of B. who he intendeth to marry until the Issue which he shall beget on her shall be of the age of 21 years and after the Issue shall come of such age then unto the use of the said B. during her Widowhood the Husband dieth without Issue the Wife entreth and her