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
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
good will of I.S. which he cannot obtain the same remainder is not good And if one covenant to stand seised to the use of Salisbury plain for the life of I. S. and after the remainder to A it is a plain case That he in the remainder shall take presently 37 H. 6. 36. Cestuy que use willed That his Feoffees should make an estate to A. for life the remainder to C. in fee A. would not take the estate C. shall have a Subpoena against the Feoffees after the death of A. See there the case And if Land deviseable be devised to one for life the Remainder over to another in Fee and the Devisee for life doth refuse Quaere if the Devisee in Remainder shall enter presently See Fitz. Subpoena And also he put the Case where Land is devised to a Monk for life the Remainder over to another in Fee he in the Remainder shall enter presently see the same Case in Perkins 108. for the Monk never took any thing by the devise notwithstanding that there is not any particular estate upon which a Remainder can depend yet the intent of the Devisor shall be observed in as much as it may and the particular estate limited to the Monk is meerly void of which every stranger shall take advantage c. And it was resembled to a Case in Baintons Case where an use in Remainder limited upon good consideration shall be good in Law although the particular use be not grounded upon good consideration so faileth And he urged a Case alleadged by Popham in the Case of the Earl of Bedford that if in Cranmers Case the estate for years limited to the Executors 2 Leâ— 5. 6. had been limited to Administrators it had been meerly void and the use in tail limited in tail should begin presently that was by reason of the interval betwixt the death of Cranmer the taking of the Letters of Administration in which mean time there is not any person capable and therefore the Remainder shall vest presently which is a fit case to prove the Case at Bar And he remembred that in the Argument of Cranmers Case Lovelace Serjeant would have an Occupancy in the Case of such a Term limited to Administrators quod omnes Justiciarii negaverunt and in the said Case of Cranmer it was holden that the Lease for years being void the estate in the Remainder did begin presently without expecting the effluxion of the years c. And truly a Term imports in it self an Interest but if the limitation had been after the Term of twenty four years c. the same implyeth but a bare time And to that purpose he cited the Case 35 H. 8. Br. Exposition 44. A. Leaseth to B. for ten years it is covenanted betwixt them that if B. pay unto A. within the said ten years one hundred pounds that then he shall be seised to the use of B. in Fee B. surrenders his Term to A. and within the said ten years pays the one hundred pounds to A. here B. shall have Fee for the years are certain contrary if the Covenant had been If he pay within the Term. Popham Attorney General Contrary The use shall not go beyond the Contract here the Term doth not vest in that it was Limited for want of sufficient consideration of the Lord Paget the intent was not that his son should have possession of the land before the term of 24. years expired Use what it is A use is a thing in Conscience according to confidence to be guided by the intent of the parties upon such Case at the Common Law W. Paget should not have a Subpoena before the years expired and this word Term doth not alter the Case and there is a great difference betwixt an use raised by Feoffment and an use raised by Covenant For in the first case the Feffor doth dipossess himself utterly if it takes not effect to one purpose it shall take effect to another purpose But in the Case of a Covenant it is otherwise for the use riseth according to the contract not otherwise here the Contract is That W. Paget shall have the Land not immediatly after the death of his Father but after the 24 years expire Owen Serjeant It hath been agreed of both sides That every use shall go according to the intent of the parties and here it appeareth That it was the intent of the Lord Paget to put all the use out of himself and I see not any difference betwixt an use raised by Covenant and a use raised by Feoffment For a use limited utrovis modo to Pauls Steeple for the life of A. and after to the use of B. in Fee the first use is void but the second good and here the meaning of the Lord Paget plainly appears for there is a Proviso in the Indenture That after the said debts and legacies paid the use limited for 24 years shall cease and it is exprestly averred that they are paid 11. H. 4. A. leaseth for life the remainder in tail to himself the Remainder over to a stranger in Fee the mean Remainder limited by A. to himself is void and the remainder over shall be immediate to the estate for life Egerton The words of the Indenture and the intent of the parties are the rules of uses The first use is void For the intent of the Lord Paget was void because contrary to the Law and Eusal to whom the use for years was limited could not take presently for his estate is limited to begin after the death of the Lord Paget and there is a great difference betwixt uses raised by Covenant and by Feoffment For when a use is raised by Feoffment there all is out of the Feoffor the land is gone the use is gone the trust is gone nothing remaineth but a bare authority to raise uses out of the possession of the Feoffees being new uses there although some of them be void yet the other shall stand but where a use is raised by way of Covenant there the covenantor continues in possession there the uses limited if they be according to Law shall raise draw the possession out of him but if not the possession shall remain in him until a lawful use shall arise which before its time shall not rise for any defect in the precedent use And here is no Term therefore no end for that which hath not a begining hath no ending And if there be no estate then no Term if there be so then it is to be taken for the time of 24. years which is not as yet expired and then was there in the Lord Pawlet an estate descendable for 24 years which by the Attainder doth accrue unto the Queen And he cited the Case of 13 Eliz. Dyer 300. Feoffment to the use of himself for life and afterwards to the use of a woman which he entendeth to marry until the issue which he
depending the Writ shall not abate it vid. 21 H. 6. 8. 2 R. 3. 20. Another matter was moved by Anderson because the Defendant had pleaded a Recovery by confession had against her without Averment that it was a true Debt in which Case Covin is presumed Windham and Periam were of opinion that the matter of Covin ought to come in on the part of the Plaintiff which Anderson denyed vid. 9 E. 4. 13 14. 33. tâ—e Cardinalls Case XCII Basset and Kerns Case Roll. Tit. Election Debt by Executors 1 Cro. 819 In Communi Banco Intrat Mich. 26 27 Eliz. Rot. 12. BAsset the Executor of Moris Sheppheard brought debt upon a bond against Kerne the Case was That Kerne was bound to Moris in a Obligation upon Condition that the said Kerne should pay to the said Morris his Executors 1 Roll. 446. Tit. Condition c. at the choice and election of the said Morris within a month after the death of the Lady Kerne thirty pounds or twenty Kine Election to which the Defendant pleaded that the Plaintiff within the month after the death c. did not make any choice or election upon which the Plaintiff did demur in Law And the Court was clear of opinion that it was a good Plea in Bar for the Obligor is not bounden to make a tender of both viz. of the mony and the Riâ—e but the Obligee himself is bounden at his peril to make election within the time limited As if I be bounden to you to make unto you such further assurance within such a time by Fine or Feoffment as you shall chuse it behoveth you to make election of your assurance Fine or Feoffment and in the principal Case the election of the Plaintiff ought to precede the tender of the Defendant vid. the Lord Lisles Case 18 E. 4. 15. 17. 20. 21. Where the Defendant was bound to the said Lord to shew his Evidences touching such a House to the said Lord or his Council the election was to the Defendant to whom he would shew them and there by Brian if I be bound to you to marry your Daughter or to go to York on your Businesses upon request before you require me to marry your Daughter I may do it or go to York which Coke granted vid. 13 E. 4. 4. Where the condition is in the disjunctive before the day of performance the Election is to the Defendant but if at the day he make default the Election is to the Obligee vid. 9 E. 4. 36 37. And by Windham if I be bound unto you in an Obligation of ten pounds to pay to you such a day ten pounds in Gold or Silver if you do not make your election before the day yet the duty remains payable for the thing to be paid is parcel of the penalty quod fuit concessum And as to the principal Case the Court was clear of opinion that upon this matter the Plaintiff should be barred See before this Term Forteleyes Case XCIII Searches Case Mich. 29 30 Eliz. In Communi Banco Antea 68. Habeas Corpus A Habeas Corpus issued forth out of the Court of Common Pleas to the Steward and Marshal of the House c. for one Wil. Search which was returned in this manner viz. quod Domina Regina per litteras suas Patentes suscepit in protectionem suam regiam Johannem Mabbe and his sureties and of her further grace by the said Letters voluit that if any person should arrest or cause to be arrested the said John Mabbe or any of his sureties that then the Marshal of her House or his lawful Deputy might arrest every such person and detain them in Prison until such person should answer before the Privy Council for the contempt And that the said William Search caused one John Preston one of the said sureties of the said John Mabbe to be arrested c. And upon that return the said William Search was discharged And also because that after the said discharge the parties caused the said William Search to be arrested again for the same cause that is by colour of the said protection An Attachment was granted against them Note that the same Term Mich. 29 30 Eliz. Another Habeas Corpus was directed to the Steward and Marshal of the Marshalsey for one Howel Habeas Corpus who made return that the said Howel was committed to his custody per mandatum Francisci Walsingham Militis Principalis Secretarij unius de privato concilio Dominae Reginae and that return was by the Court holden insufficient because the cause upon which he was committed was not set down in the return and therefore day was given to amend the return and now they returned the Writ in this manner ss infra nominatus Johannes Howel commissus fuit c. ex sententia mandato totius concilii privati Dominae Reginae Ita quod corpus ejus habere non possumus c. And that return was also holden by the Court to be insufficient for by whatsoever person or by what means soever he was committed the conclusion of the return ought to be Corpus tamen ejus paratum habeo and if it shall seem good to the Court that the Prisoner shall have his Priviledge and shall be dismis't he shall be discharged but if not then he shall be remanded And the Court took a difference where one is committed by one of the Privy Council for in such case the cause of the committing ought to be set down in the return But contrary where the party is committed by the whole Council there no cause need to be alleadged XCV Bret and Audars Case Mich. 29 30 Eliz. In Communi Banco BRet brought Debt upon an Obligation against Audar Debt upon a Bond to perform Award Owen 7. the Condition of which Obligation was that the Defendant should stand to the Award c. And the Arbitrator awarded that the Defendant should pay unto the Plaintiff ten pounds without naming day or place And as to that the Defendant pleaded that he was always ready and yet is c. without shewing any tender And it was moved That although that would have been a good Plea in debt upon an Arbitrament as the Case is 7 H. 4. 97. See 21 E. 4. 40 41 42. Yet now by the Obligation and the Condition of it the sum is payable in another manner than it was before see the pleading of the Case 21 E. 4. In Debt upon an Obligation to perform the Award That the Award was made between the Terms of Pasch and Trinity and he the eighth of September after tendred the twenty pounds and the Plaintiff refused it And the Lord Anderson put a difference between the Case in 22 H. 6. 57. Tender and the Case at the Bar for in our Case the Obligation doth precede the duty which accrueth by the Award subsequent but in the former Case the duty did precede
Plaintiff for certain Beasts which he wrongfully took from the Plaintiff that then c. And he said in facto That the said I. S. had stolen the said Beasts from the Plaintiff Condition against Law. and thereof he was endicted c. and so the condition being against the Law the Obligation was void upon which the Plaintiff did demurr in Law. And it was argued by the whole Court That where the condition of an Obligation shall be said against the Law and therefore the Obligation void the same ought to be intended where the condition is expresly against the Law in express words and in terminis terminantibus Post 103. and not for matter out of the condition as it is in this case And Iudgment was given for the Plaintiff C. Hawks against Mollineux Mich. 29 30 Eliz. In Communi Banco IN a Replevin by Hawks against Mollineux who avowed for Damage-fesant The Plaintiff in Bar of the Avowry pleaded that Sir Gervase Paston Knight was seised of a Messuage and twenty Acres of Land And that always those whose estate Repleviâ— Yelv. 185. Prescription c. have used to have Common in the place where c. for all their Cattel commonable in this manner viz. If the said Land be sowed by assent of the Commoner then no Common until the Corn be mowed and when the Corn is mowed then Common until the Land shall be sowed again by assent of the Commoners And this Prescription was found by Verdict and exception was taken to this prescription because against common right so as a man cannot sow his Land without the leave of another But the exception was disallowed by the Court for the prescription was holden to be good by the whole Court for by the Law of the Land the Owner of the Land cannot plow the Land where another hath Common but here is a benefit to each party as well for the Owner of the Land against the Commoner as for the Commoner against the Tenant of the Land for each of them hath a qualified Interest in the Land. CI. Baldwin and Cocks Case Intr. Pasch 29 Eliz. Rot. 1410. In Communi Banco Replevin Owen 52. Post 225. 1 Inst 225. 2. BAldwin was Plaintiff in a Replevin against Cocks and upon the pleading the Case appeared to be this That Sir Richard Wayneman was seised of the place where c. and leased the same to one Truepeny and one Eliz. Reade for term of 21 years if the said Truepeny and Eliz. or any child or children betwixt them begotten should live so long Eliz. within the term died without issue If now the term for 21 years be determined was the Question And the Lord Anderson conceived that the estate for years is not determined by the death of Elizabeth And it was argued by Shuttleworth Serjeant that upon the matter the term is determined And he put the Case of the Lord Bray 3 Eliz. Dyer 190. Where the Lord Bray sold unto four great Lords the marriage of his Son and Heir to the intent to be married at the appointment and nomination of the said Lords the Lord Bray died one of the said Lords before any marriage 5 Co. 9 1 Brown. 31. 46 47. 80. 101. 2 Br. 83. 148. or appointment or nomination died the Son is married by the appointment c. of the surviving Lords That marriage is not within the intent of the Covenant and adjudged that upon that marrriage no use shall accrue And also he cited this Case adjudged in the Kings Bench. The administration is committed to one durante minore aetaâ—e of two Infants one of them becomes of full age the power of the Administration is determined which Walmesley Serjeant granted for it is but an authority but here in the Case at Bar is a matter of interest And by Anderson all the construction of this lease and grant rests upon this point if this word Or either shall be taken as disjunctive as it is in its nature or as a conjunctive and if it be taken as a disjunctive if it make the whole sentence in the disjunctive as if the limitation had been if the Husband or Wife or any Child c. And Fenner put this Case out of 17 E. 3. as he cited it Land is given to I. S. in Fee so long as A. B. hath issue of his body A. B. dieth without issue his Wife priviment enâ—â—ent Now the estate is determined and upon birth of the issue after shall not revive which Rhodes and Anderson denied for in many Cases the Law shall respect the existency of the child in the mothers belly And see 7 Eliz. Plow 289. where a Copulative shall be taken in the disjunctive as a covenant with B. to make a lease for years of such Lands to the said B. and his Assigns Exposition of words in deeds 244. Post 251. 1 Roll. 444. the same shall be construed or his Assigns And it was clearly agreed by the other parties that if the words had been If Truepeny Elizabeth or any child or children c. so long c. upon the death of any of them the interest is determined And by Rhodes Periam and Windham in the principal Case the lease shall endure as long as any of the persons named in the Proviso shall live and so seemed to be the meaning of the parties And Anderson haesitavit in the words of the limitation i. the Habendum to the said Truepeny and Eliz. for 21 years a festo Sancti Johannis Baptist post terminum annorum the expiration of a former term if the said Truepeny and Elizabeth or any child c. And he conceived that the limitation did go to the commencement of the lease only and not to the expiration or determination as if the lease should not begin if they all were not alive at the commencement of the lease And all the other Iustices were clear of the contrary opinion for by them this limitation shall go and shall be referred to the determination of the Lease and not to the commencement of it Anderson If any cause should be for which the lease should endure untill the years be encurred notwithstanding the death of the Husband or Wife it was because the lease was intended a common advancement to both for it should be in vain to name the Wife in the lease if the lease should cease by the death of the Husband And afterwards after many arguments on both sides it was adjudged that by the death of Elizabeth the lease was not determined for the disjunctive before Child makes all the limitation in the disjunctive CII Zouch and Bamfields Case Mich. 29 30 Eliz. In Communi Banco THe Case between the Lord Zouch and Bamfield was now argued by the Iustices And Rhodes the puisne Iustice argued 1 And. 165. 3 Co. 88. that the Lord Zouch the Demandant should be barred Four Exceptions have been taken to the bar First because it is not shewed in
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