should vest in his Heir It was further given in Evidence that the Conusor named the said Cook one of the Conusees and willed that the other three Conusees should release to him Gawdy Iustice held That that by nomination the use did vest in Cook for he said it had been adjudged that where before the Statute of 27 H. 8. One infeoffed divers persons to his use Feoffment to Uses and the Feoffor willed that his Feoffees should make estate to such person as his Son and Heir should name and died the Son and Heir named one of the Feoffees that the same was a good nomination c. Wray and Jefferies to the contrary for after this release Cook is in the whole by the Conusor and not by his Co-Feoffees and by this limitation the Conusor ought to name such a person which ought to take the estate and so cannot one Ioyntenant from his Companion c. And also the words are so that they four shall take the estate 14 Eliz. In the Kings Bench. LXXIII The Bishop of Rochesters Case IN Ejectione firmae the Case upon Evidence was Grant of a Reversion by a Bishop Attornment the Bishop of Rochester 4 E. 6. made a lease for years to B. rendring rent and afterwards granted the Reversion to C. for 99 years rendring the ancient rent Habend from the day of the Lease without impeachment of waste which Grant was confirmed by the Dean and Chapter But B. the Lessee did not attorn and in default of Attornment it was holden by the whole Court that the Lease was void for it is made by way of Grant of the Reversion But by Catlin if the Bishop had granted the Reversion and also demised the Land for 99 years it should pass as a Lease to begin first after the former Lease determined And as to the Attornment it was given in Evidence that B. after the notice of the Grant to C. had speech with C. to have a new Lease from him because he had then in his Lease but 8 years to come but they could not agree upon the price And the Iustices conceived that that was an Attornment because he had admitted the said C to have power to make a new Lease Also the said B. being in company with one R. and seeing the said C. coming towards him said to the said R. See my Landlord meaning the said C. Bromely Solicitor Attornment the same is no Attornment being spoken to a stranger Barham contrary because he was present It was holden by the whole Court that it was a good Attornment But if the Attornment was not before the Bishop was translated to Winchester the Lease should be void and although the confirmation of the Dean Chapter was before the Attornment so as no estate was vested in C yet it was good enough for the assent of the Dean and Chapter is sufficient be it before or after by Catlin Southcoat and Whiddar Iustices but Wray held the contrary Pasc 26 Eliz. In the Kings Bench. LXXIV Russels Case Execution where not good upon a Capias without a Scire Facias RUssel was condemned in an Action of Debt and after the year and day the Plaintiff sued a Capias ad Satisfaciend against him and by force thereof he was taken and committed to the Marshal as in Execution It was the Opinion of the Iustices that it was a void Execution and not only voidable by Error and therefore the Defendant was discharged for it is not any Execution at all and the Plaintiff may have a Scire facias when he pleaseth Pasc 26 Eliz. In the Kings Bench. LXXV Bluet and Cooks Case Action for Words IN an Action upon the Case the Plaintiff declared for scandalous words viz. Lambert is a Thief and Bluèt innuendo the Plaintiff is his Partaker It was the Opinion of the whole Court that the words were not actionable because they were too general for it may be that the Plaintiff is his Partaker in other Matters But if the words had been That Bluet knowing Lambert to be a Thief was his Partaker there the Action would have lain Iudgment was given against the Plaintiff Trin. 33 Eliz. In the Kings Bench. LXXVI Hunt and Gonnels Case Bail. HUnt recovered in Debt against Gonnel and procured against him a Capias ad Satisfaciend upon which Non est inventus is returned Execution but the Writ is not filed Hunt sued a Capias against the Mainpernors who are taken in Execution It was the Opinion of the Iustices that they should avoid this Execution by Error and not by Plea or Surmise c. But if the Capias returned against Gonnel had been filed and after imbezelled Quaere of the Error for the Court conceived that the matter shall be examined but Quaere to what intent Wray said to punish the Deceit but not to maintain the Execution against the Mainpernors Trin. 26 Eliz. In the Kings Bench LXXVII Saer and Blands Case SAer Parson of the Church of D. libelled in the Spiritual Court against Bland for Tythes Bland came to the Kings Bench and shewed that within the said Parish of D. there is a Hamlet in which the said Bland inhabited and the said Inhabitants within the said Hamlet time out of mind had had a Chappel of Ease within the said Hamlet because the said Hamlet was distant from the Church of the said Parish and with part of their Tythes have found a Clark to do Divine Service within the said Chappel and also had paid a certain sum of money to Saer Prohibition Prescription and his Predecessors for all manner of Tythes and prayed a Prohibition and had it and it was holden a good Prescription LXXVIII Pasc 29 Eliz. In the Common Pleas. A Copyholder with licence of the Lord made a Lease for years and afterwards surrendred the Reversion with the rent to the use of a Stranger who is admitted accordingly Attornment It was moved if there needed any Attornment It was the opinion of Rhodes and Windham Iustices that the Surrender and Admittance ut supra are in the nature of an Attornment and so amount to an Attornment or at least supply the want of it Mich. 29 Eliz. In the Star-Chamber LXXIX The Lady Newman and Shyriffes Case THe Lady Newman Sister of James Wingfield 3 Leon. 170. lately deceased exhibited a Bill of Complaint in the Star Chamber against one Shyriffe dwelling in Dublin in Ireland and two others complaining That the said Shyriffe had forged a Deed purporting that the said James had by that Deed given unto him all his Goods and also that the said James had by that Deed assigned to the said Shyriffe a Lease for years of Lands in Ireland and also the said Shyriffe had procured the two other Defendants to depose upon their Oaths before the Town-Clerk of London That the said Deed was Sealed and Delivered by the said James as his Deed. It was moved by the Counsel of the
taken to it because in the Margent was written Middlesex and in the Indictment they both were named of London and afterwards in the proceedings the words are That Weshbourn and Brown entred in such manner in Com. praedict and that is incertain what County is intended Middlesex or London but the Exception was not allowed for London before is not expressed to be accounted but only implyed Another Exception was because they had not any addition but it was not allowed for it appeared to the Court. And after it was moved upon the Statute of 31 Eliz. cap. 11 that no Restitution upon such Indictment should be granted if â—he party indeed had had the Occupation or had been in quiet possession for three years next before the day of the Indictment and in the Case at Bar the Master hath been in possession by three years but the Parties indicted being his Servants had been with him but for one year it was thereby holden by the Court that upon the matter Restitution should not be granted for the possession of the Master in this Case takes away all Restitution and that by the Statute Mich. 32 Eliz. In the Common Pleas. CXXIX Canons and Osborns Case A. Seized of a Rent in Fee granted the same by Fine to B. to the use of C. It was moved to whom the Ter-tenant should attorn And by Walmesly Periam and Windham there needs not any Attornment to the Conusee because all the right of the Rent is out of the Conusor Attornment and transferred to Cestuy que use instantly And Walmesly cited this Case to have been lately adjudged A Reversion in Fee upon a Lease for years was granted by Fine to A. to the use of B. B. without Attornment brought an Action of Waste and it was adjudged that the Action did well lye CXXX Mich. 32 Eliz. In the Common Pleas. A Lease for years is made by Deed Indented rendring Rent and the Lessor covenants that the Lessee paying his Rent shall enjoy the Land demised for the whole term the Lessee did not pay the Rent and afterwards is ejected by a Title peramount By Walmesly and Windham Iustices that the Covenant is conditional and that the Lessee should not have advantage of it if he did not perform the Condition which is created by this word paying Periam Iustice was strongly to the contrary viz. that the word paying did not create a Condition Mich. 32 Eliz. In the Common Pleas. CXXXI Thetford and Thetfords Case THe Case was an Action of Debt for Rent reserved upon a Lease for years the Plaintiff declared that Land was given to A. and B. his Wife Leases and the Heirs of their Bodies and that he and his Wife leased for years to the Defendant Baron and Feme and that the Donees were dead and that the Plaintiff as Heir c. for Rent behind c. And upon Non dimiserunt the Iury found that the Husband and Wife dimiserunt by Indenture and that after the Husband died and the Wife entred and within the term died Agreement Disagreement Now upon this matter Anderson Iustice conceived clearly that the Iury have found for the Defendant scil Non dimiserunt for it is now no Lease ab initio because the Plaintiff hath not declared upon a Deed and also the Wife by her disagreement to it and Occupation of the Land after the Death of her Husband had made it to be the Lease of her Husband only Trin. 31 Eliz. In the Common Pleas. CXXXII Acton and Pitchers Case IN a Writ of second Deliverance by Acton against Pitcher Leases within 32 H. 8. It was moved if a Lease made by a Prebendary were within the Statute of 32 H. 8. cap. 28. because the said Statute speaks of men seized in the right of their Churches and a Prebendary is seized in right of his Prebend and not in right of the Church But it is the Opinion of the whole Court that he was within the Equity of the Statute Trin. 32 Eliz. In the Common Pleas. CXXXIII Curtises Case IN a Writ of Error it was holden in the Common Pleas Amendment that if a Writ of Error be brought and delivered to the Chief Iustice de Communi Banco and allowed by him under his hand that afterwards the Record cannot be amended by Prothonotary Attorney or Clerk of the Court although that no Record be entred upon the Roll upon which the Writ of Error is brought Mich. 31 Eliz. In the Common Pleas. CXXXIV Scots Case SCot brought a Formedon against A. who made default after default Resceit Anders 133. and now came B. and surmised to the Court that C. was seized of the Land in Demand and gave the same to A. in Tail the remainder to the said B. in Fee and prayed to be received and afterwards the Court upon advice ousted him of the Resceit 28 Eliz. In the Common Pleas. CXXXV Terrets and the Hundred of c. Case IN an Action upon the Statute of Huy and Cry against the Hundred of c. the Defendants pleaded Not Guilty Action upon Statute of Huy and Cry. And in Evidence the Plaintiff to prove that he was robbed offered to the Iury his Oath in verifying his Declaration which Anderson and Periam utterly refused to accept of but Windham Iustice affirmed that such an Oath had been accepted of in the Case of one Harrington Oaths where the Plaintiff could not have other Evidence to prove the Cause in respect of secresie for those who have occasion to travel about their occasions would not acquaint another what monies or other things which they have in their journey and we see that the Law doth admit of the Oath of the Party in his own cause where the Oath shall make an end of the cause as in Debt where the Defendant wageth his Law. Periam That 's an ancient Law but we will not make new Presidents for if such an Oath be accepted of us in this case by the same reason in all causes where is secrecy and no external proof whereupon would follow great inconvenience and although such an Oath hath been accepted of and allowed here yet the same doth not move us and we do not see any reason to multiply such Presidents The Declaration is that the Plaintiff was robbed of 10 l. de Denariis ipsius querentis and upon the Evidence it appeareth that the Plaintiff was Receivor of the Lady Rich and had received the said mony for the use of the said Lady And Exception was taken to the same by Shuttleworth but it was not allowed of for the Plaintiff is accomptable to the Lady Rich for the said mony And it was agreed that if he which was robbed after he had made Huy and Cry doth not further pursue the Felons yet his Action lyeth Mich. 26 Eliz. In the Kings Bench. CXXXVI Townsend and Pastors Case Feoffment by Coparceners Cestuy que uses NOte It was holden in the Common Pleas by
all the Iustices in the Case between Townsend and Pastor two Coparceners are in the use of a Manor after the Statute of 1 R. 3. the one of them enters and makes a Feoffment in Fee of the whole Manor that this Feoffment is not only of the moiety of the Manor whereof she might lawfully and by the said Statute make a Feoffment but also of another moiety by disseisin Mich. 26 Eliz. In the Kings Bench. CXXXVII Bulwer and Smiths Case BUlwer brought an Action upon the Case against Smith and declared how that H. H. had recovered against the Plaintiff in the Common Pleas 20 l. and before Execution died and that the Defendant knowing that at D. in the County of Norfolk malitiose deceptive machinans to Outlaw the Plaintiff upon the said Iudgment in the name of the said H.H. c. in performance of his said purpose at W. in the County of Middlesex took out a Capias ad satisfaciend in the name of the said H.H. against the now Plaintiff upon the said Iudgment directed to the Sheriff of London and Non est inventus being returned upon that took out an Exigent in the name of the said H.H. which Writ by the procurement of the Defendant was retorned and then the Plaintiff was Outlawed and afterwards the Defendant in the name of the said H. H. took out a Capias utlagatum against the Plaintiff directed to the Sheriff of Norfolk by force of which the Plaintiff was arrested and imprisoned for two months until he had gotten his Charter of Pardon by reason of which Outlawries the Plaintiff had forfeited all his Goods and Chattels and upon the said Declaration the Defendant did demur in Law and the principal cause of the demurrer was because that the Action might have been laid in Middlesex where the wrong began scil the Capias ad satisfaciend the Outlawry for this imagination at D. in the County of Norfolk set forth in the Declaration cannot give to the Plaintiff this Action But if divers conspire in one County for to indite one and they put the same in Execution in another County the Party aggrieved may lay his Action in which of the said two Counties he pleaseth 22 E. 4. 14. for a Conspiracy is more notorious than an imagination imaginatio est unius conspiratio plurimorum And in this Case the Deliverance of the Capias at D. in Norfolk is but accessary and the suing of the Process aforesaid at Westminster is the principal upon the part of the Plaintiff it was said that such an action might be laid in the County where the Plaintiff was wronged and the Plaintiff is not tied to lay his Action in the County where the original matter which was but conveyance to the said wrong was done A imprisoned upon a Capias ad satisfaciend in Middlesex escapes into Surrey the Action upon the escape shall be laid in Surrey Reteiner of a Servant in one County who departs in another County the Master shall lay his Action in which of the said Counties he will 15 E. 4. 18 19. 41 E. 3. 1. A Writ of Disceit was brought in the County of York and the Case was that in a Praecipe quod reddat of Land the Tenant shewed forth a Protection at Westminster the which was allowed for a year and within the year the Tenant stayed in the County of York upon his own occasions the said Writ of Disceit was holden to be well laid for there the wrong began notwithstanding that the Original i. e. the casting of the Protection was in Middlesex for the disceit is that the Tenant contrary to the pretence of the Protection continued at York for the Protection was quia Moraturus And always where the cause of the Action consists of two things whereof the one is matter of Record and the other is matter of Fact there the Action shall be laid in such County where the matter in fact may be more properly tried Vide 11 R. 2. Fitz. Action sur le Case 36 Br. Lieu 84. in the principal Case at Bar the Court was of Opinion that the Action was well brought in the County of Norfolk Another Exception was taken to the Declaration because the Plaintiff hath there set forth whereas his true name is John Bulwer by which name he now sues he was sued and outlawed by the name of John Buller and then the now Plaintiff upon that matter was never sued nor outlawed and then is not grieved by the Defendant but John Buller for here in his Declaration there is not any averment that John Bulwer and John Buller are one and the same and not divers Persons But the Exception was disallowed for the whole Court held that for As much as the Plaintiff hath declared that he by the name of John Buller was sued and Outlawed the same is an averment in Law c. and amounts to so much Another matter was objected because it appeareth in the Declaration that H. H. was dead before this Process was sued and then the Outlawry was erronious and so the Plaintiff is not at any mischief but that he may reverse the Outlawry by Error as in Conspiracy the Defendant pleads that the Indictment upon which the Plaintiff is arraigned is vitious and erroneous and so his life was never in jeopardy But as to that it was said by the Court that the erronious proceedings of the Defendant shall not give advantage to himself but because the Plaintiff was vexed by colour and reason of the Outlawry and put to his Writ of Error which cannot recompence the loss and damage by him sustained by reason of the Outlawry aforesaid it is reason that the Plaintiff have his Action wherefore Wray Chief Iustice ex assensu Sociorum gave Iudgment for the Plaintiff CXXXVIII Mich. 27 Eliz. In the Kings Bench. Upon the Statute of 23 Eliz. of Recusancy CErtain Persons were indicted upon the Statute 23 Eliz. for refusing to come to the Church and upon the same were Outlawed and now they came to the Kings Bench ready to make their submission and to conform themselves according to the said Statute and thereupon they prayed to be discharged But the Court would not receive such Submission but advised them to purchase their Pardon for the Outlawry and then to tender their Submission which they did accordingly and at another day came again and shewed to the Court their Pardon whereupon the Clerk of the Court asked them if they would conform themselves according to the said Statute who said they would wherefore they were discharged Mich. 27 Eliz. In the Kings Bench. CXXXIX Christian and Adams Case Action for words AN Action upon the Case was brought for speaking these scandalous words of the Plaintiff scil the Plaintiff did conspire the death of the Defendant it was found for the Plaintiff and moved in Arrest of Iudgment that upon the matter the Action did not lye for the bare conspiring of the death of a man
is not punishable by the Law of the Land no more than if many conspire to indict one but do not put it in Execution it is not punishable but if A. saith that B. lyeth in wait to kill him or rob him there an Action lyeth for insidiatores viarum are punishable But the Opinion of the whole Court was that because these words sound in great discredit of the Plaintiff it is reason he have his Action and so Iudgment was given for the Plaintiff Mich. 27 Eliz. In the Kings Bench. CXL The Lord Stafford and Sir Rowland Heywoods Case THe Lord Stafford brought an Action upon the Case against Sir Rowland Heywood Kt. Abatement of Writ Exception was taken to the original Writ viz. ad respondend c. Quare colloquium quoddam habebatur inter Dominum Stafford Row. Heywood de assurando Castrum to the said Lord Stafford by the said Sir Rowland c. Dictus Rowlandus Castrum illud non assuravit c. where the said Writ said cum colloquium quoddam habebatur for the cause of the Action is not colloquium habitum but the not assurance of the Castle according to the promise made super colloquium praedictum and for that cause the Writ was abated CXLI Mich. 27 Eliz. In the Kings Bench. NOte by the Court If one who is not a common Informer be barred in any Information or Action upon a penal Statute he shall pay costs notwithstanding the Preamble of the Statute of 18 Eliz. cap. 5. be for the redressing of divers Disorders in common Informers but if pars gravata be barred in such case he shall not pay costs Trin. 32 Eliz. In the Exchequer CXLII Robinsons Case GEorge Robinson Lessee for years of the Manor of Drayton Basset the Reversion to the King devised his term to his wife as long as she should keep her self a Widow with the Remainder over if she married or died and made his Wife and his Son William his Executors the said William being within age and therefore the administration was committed to the Wife alone and she only proved the Will and afterwards the Wife granted all her Interest to the said William and dyed And by Cook nothing passed by this Grant for William had the same before for every Executor hath the whole Interest Popham contrary for at the time of the Grant the Son was within age and had not administred nor proved the Will therefore in effect the wife was sole Executrix and by Egerton Solicitor if during the said Executorship by the wife one doth trespass upon the Lands the wife only shall have the Action of Trespass without naming her Co-Executor which Cook denied and he cited the Case 10 H. 7. 4 where two Executors are and the one only is possessed of goods of the Testator and a Stranger takes them our of his Possession to whom the other Executor releaseth and after the Executor out of whose possession the goods were taken brings an Action of Trespass against the Trespasser who pleads the Release of the other Executor and it was holden a good Plea for the possession of the Plaintiff was also the possession of his Companion The Case was further that Thomas Robinson in pleading shewing that G. Robinson was possessed and the same devised to his wife who granted to William Robinson who devised it to the Defendant And the other side shewed that the said Thomas granted the said term to Paramour and upon that grant they were at Issue if now against his own pleading Thomas might give in evidence that Thomas could not grant for that he had not any thing to grant for if the gift made by the wife to William was void and he had the term as Executor then he could not devise it but his devise to Thomas was void and then Thomas could not grant it and so Ne grant pas It was also shewed that the said Thomas granted the same to Paramour by Indenture if now against that Indenture he might give in evidence such special matter ut supra and if the Party shall be concluded if the Iury shall be concluded to give the Verdict Secundum veritatem facti for they are sworn to say the truth and by Popham and Egerton as well the Iurors as the Parties are bound and concluded by the confession of the Parties on the Record and here all confess that William devised to him virtute cujus he was possessed The Queens Attorney to that said That true it is that Thomas Robinson was possessed but further said that the said Thomas granted it to Paramour and so the Interest of Thomas is confessed on both sides Therefore the Iury shall not be received to say the contrary And by Manwood Chief Baron if the Parties admit a thing by not gainsaying it Jurors where bound by confession of the parties where not the Iury is not bound by it but where upon the pleading a special matter is confessed the Iury shall be bound thereby And afterwards the Issue was found against Robinson the Defendant 33 Eliz. In the Kings Bench. CXLIII Applethwait and Nertleys Case IN an Action upon the Case the Plaintiff declared that the Defendant promised in consideration that the Plaintiff at the request of the Defendant would marry his Daughter to give to the Plaintiff 40 l. and said he had married his Daughter and yet the Defendant Licet saepius requisitus would not pay it It was moved by Cook in stay of Iudgment that the Declaration is vitious because there is not set forth the place and time when the request was made for the Assumpsit being general it is by Law to be paid upon request Fenner If the promise was expresly to be paid upon request the Declaration was not good And afterwards Iudgment was given for the Plaintiff Hil. 30 Eliz. In the Common Pleas. CXLIV Wats and Kings Case SAmuel Wats Plaintiff in Ejectione firmae against W. King upon a Special Verdict it was found that W. Wallshot was seized in Fee and he with one Oliver Shuttleworth Octab. Mich. 3 4 Phil. Mary levied a Fine Sur Conusans de droit c. to John Hooper who granted and rendred by the same Fine to Oliver for a month the remainder to the said W. Wallshot and to one Anne Cook and the heirs of their bodies c. the remainder to the right heirs of the said W. Wallshot in Fee and that with Proclamation William and Anne intermarry have issue John now alive W. Wallshot 4 5 Phil. Mary levy a Fine with Proclamation to Edward Popham Esq to the use of the said Edward and his heirs W. Wallshot 18 Eliz. died Anne took to husband Richard Stephens and they in the right of the said Anne entred and by Indenture demised the said Land to Richard Hoose the Father Richard the Son and Mary his wife for the term of their lives rendring to the said Richard Stephens and Anne his wife and to the heirs of the body
of Debt amounting to the sum of 80 l. Solubiles eidem querenti to be received by the Defendant at Roan in Normandy to his own use the Defendant promised to pay to the Plaintiff 60 l. and upon this matter Iudgment was given and now a Writ of Error was brought and assigned for Error because it is not shewed in the Declaration that the Bills were sealed or that they were made to the Plaintiff and here is not any consideration for the Defendant hath not any remedy to compel the Parties to pay the said debts if they refuse Godfrey If the mony be not paid at Roan to the Defendant he shall have an Action upon the Case for this is an Assumpsit in Law which Wray concessit for it is a mutual promise and agreement And it was argued to the contrary that here is not any sufficient consideration for it doth not appear that the Defendant hath any remedy for to recover the mony And 13 Eliz. it was holden that where the Plaintiff declared in an Action upon the Case that in consideration that he had delivered a Bill of Debt to the Defendant and hath made a Letter of Attorney upon it c. the Defendant promised to pay to the Plaintiff 20 l. and because that the Plaintiff notwithstanding that might release the debt or revoke the Letter of Attorney and so defeat the Defendant of the whole profit c. that the Action upon the matter did not lye Also for another cause the consideration is not sufficient for it is illegal because maintenance but if it was upon the consideration precedent it had been good enough As if J be indebted to A. and B. is indebted to me J. may assign to A. the debt which B. oweth me Golding Although the consideration be but of small value yet it is good enough And if A. in consideration B will assure to him the Manor of D. promise to pay to B. 100 l. although the Party hath not any interest or title to it yet it is good and also though the consideration be Executory yet it is valuable for if the mony be not paid at Roan the Defendant shall have an Action upon the Case against the Plaintiff It was also objected that upon the Declaration it doth not appear that the Defend if the two Bills be not paid may have an Action upon the Case against the Plaintiff for there is not any express Assumpsit on the Plaintiffs part that the monies due by the Bills to the Plaintiff shall be paid to the Defendant for if it had been so then it had been good for then there had been a reciprocal promise which is not here nor can be collected by any words in the Declaration Cook It doth not appear upon the Declaration by whom nor to whom the mony due by the two Bills shall be paid for it may be that they are due to the Defendant and then the delivery of the two Bills is not any consideration Quod Clench Gawdy concesserunt The Case was adjourned CCIV. Temps Roign Eliz. THe Case was A. enfeoffed B upon Condition that if he pay ten pound to the Feoffee his Executors and Assigns within three years next ensuing that then c. The Feoffee hath Issue three Sons whom he makes his Executors and dyeth before the day of payment The Ordinary commits Letters of Administration to J. S. during the minority of the Executors It was the Opinion of Dyer that it was the surest way for A. to pay the monies to the Executors no withstanding the administration committed to another for the Administrator in such Case is but a Bailiff or Receiver to the Executors and shall be accountable to them which Harper concessit And Manwood said That if in that Case the monies be paid to one of the Executors it is sufficient and the monies to be paid upon that conditional Feoffment are as a sum in gross and not in the nature of a Debt quod caeteri Justiciarii concesserunt CCV Temps Roign Eliz. A Lease is made of certain Lands for years Proviso that the Lessee shall not put his Cattel upon the Land from Michaelmass to St. Andrews Tide the Question was If this Proviso and Restraint shall reach for the whole Term or but to the first year Dyer Conditions are stricti juris and ought not to have liberal constructions therefore he conceived that the condition should be restrained to the first year and should not further extend Manwood If I be bound that I will not go to London between Easter and Michaelmas it shall not extend only to the first year after the date of the Obligation but for my whole life Hil. 32 Eliz. In the Common Pleas. CCVI. Doughty and Prideaux Case ACtion upon the Case by Doughty against Prideaux upon these words Thou art a wicked and perjured Fellow 3 Leon. 269. and art forsworn in the Court of Star-Chamber as it appeareth by an Exemplification here under the Seal of that Court The Defendant justified by reason of a Bill exhibited in the said Court by one Brooks against the now Plaintiff for conspiring with another to endite the said Brook of certain Felonies and the Defendant now Plaintiff in his answer to his said Bill denied upon Oath the said Conspiracy and Sentence was given in the said Court against the now Plaintiff ubi revera such Conspiracy was The Plaintiff by Replication said That the said Brook was arraigned and endicted upon the said Indictment and prayed his Clergy whereupon it appeared that the said Brook was not legitimo modo acquiet ' and the same can be no Conspiracy in the now Plaintiff to prove the said Brook to be indicted And by Walmesley and Periam the Replication is not good for it may be that Brook was acquitted and yet that the Plaintiff conspired upon which a Writ of Conspiracy perhaps will not lye but an Action upon the Case without doubt for the Replication doth not prove that the Plaintiff did not conspire but that the Plaintiff was not punishable for such Conspiracy CCVII. Pasc 33 Eliz. In the Common Pleas. AN Abbot made a Lease to three men for eighty years and in the end of the said Lease there was a clause Proviso That if they dyed within the said Term that then the Lessor might enter The Possessions of the Abby came to the King who granted the Reversion to J. S. who made a new Lease to J. D. for twenty and one years to begin after the Expiration Determination or Surrender of the former Lease The three Lessees dyed within the term If J. D. might enter before J. S. had entred was the Question It was the Opinion of the Iustices that he could not for it is in the Election of J. S. if he will take advantage of the Condition and defeat the Lease but that ought to be by Entry and none can make such Entry but the Lessor himself or by his express direction Trin. 31 Eliz. In
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
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
for 21 years to begin at Michaelmas before and in pleading it was shewed That virtute cujus dimissionis posterioris the Plaintiff entred fuit possess crastino Michaelis which was before the making of the Lease and the Plaintiff in his Declaration declared That the Defendant in consideration that the Plaintiff had assigned to him the said Leases had promised to pay to him 630 l. It was found for the Plaintiff Cook For where the Plaintiff in an Action upon the Case declares upon two Considerations in such Case although the one be void yet if the other be good and sufficient the Action is maintainable but the Damages shall be given without respect had to the Consideration insufficient and the Plaintiff was to declare upon both Considerations for the Assumpsit upon which the Action is conceived was in consideration that both the Leases were assigned to the Defendant and our Declaration ought to be according to the Assumpsit and it was not material although that one of the Considerations was utterly void Another Exception was taken Because the Lease is set forth to be made 18 October and that by virtue thereof the Plaintiff entred Cro. Mich. Then the Plaintiff entring Cro. Mich. was a Disseisor and then being in by disseisin he could not assign his Interest to another and that appears clearly to the Court upon the whole matter But Cook said That shall not hurt us for it is but matter of surplusage to say Virtute cujus c. As 20 H. 6. 15. the Plaintiff in Trespass supposed by his Declaration that the Trespass for which the Action was brought commenced 10 H. 6. with a Continuando until the day of the Action brought viz. idem 14 Febr. 17 H. 6. where the Writ bore date 12 die Octobris Anno 17 H. 6. And Exception was taken to the Declaration because the continuance of the time was not put in certainty But the Exception was not allowed for it is certain enough before the viz. the day of Writ brought and so the viz is void and all that which follows upon it And so here this Clause Virtute cujus est totum sequitur est omnino void 7 H. 4.44 Br. Action upon the Case 37. The Writ was Quare Toloniam asportavit illud solvere recusavit Exception was taken to the repugnancy for it would not be carried away if it were not paid before yet the Writ was awarded good and the first word Toloniam asportavit holden void So here in the principal Case As to the other Exception it is clear That here is not any Disseisin upon this Entry of the Plaintiff before the making of the said Lease for there was a Communication betwixt the Parties of such a Lease to be made or of such an Assignment and peradventure the Entry was by assent of the other part and then no Disseisin And posito it should be a Disseisin yet the Plaintiff hath assigned all the Interest quod ipse tunc habuit according to the consideration and delivered to the Defendant both the Indentures of Demises and so he hath granted all that which he might grant And if it be a void Assignment or not is not material for quacunque via data the Consideration is good and then the Assumpsit good also Egerton Solicitor contrary In every Action upon the Case upon Assumpsit three things ought to concur Consideration Promise and breath of Promise and in this Case the Assignment of the Lease to begin after the death of the Lessor is void being but Tenant for life and no Consideration upon the confession of the Plaintiff himself And upon the second Consideration it appeareth the Lessor viz. the Wife who held for life had but a right to the Land demised for she was disseised for he to whom the Land was after let entred before the Lease was made for it doth not appear that he entred by force of any agreement made before the Lease therefore by his Entry he was a Disseisor It was also moved That here was not any sufficient consideration for by a bare or naked delivery Nihil operatur and here is not any word of Give or Grant. To which it was answered That the delivery of the Indenture was not a bare Bailment but a Delivery to the use in the Indenture and so it is pleaded and therefore thereby an Interest passed for such a delivery cannot be countermanded An Indenture with an Averment shall never make an Estoppel Clench Iustice If I deliver any thing to one for his proper use an Interest passeth but if it be to the use of another no Interest passeth The party may have usum but not proprietatem CCLVII Mich. 18 Eliz. In the Kings Bench. Contract IF a Contract be made betwixt two here in England scil that one of them shall carry certain Goods of the others to Burdeux in France and sell them there and with the mony thereof coming shall buy other Goods for the use of him who was the owner of the first Goods and safely them deliver to him in London If now the party sell them in Burdeux and buyeth others with the monies thereof and brings them into England and there converts them to his own use upon this matter an Action lyeth at the Common Law for the Contract and the Conversion being the cause of the Action was made in England But if the Contract only was in England and the Conversion beyond the Seas the Party at his Election may sue at the Common Law or in the Court of Admiralty And if a Merchant here write to his Factor in France to receive certain Merchandizes which he hath sent to him and to Merchandize with them for his use if the Factor receiveth them and converts them to his own use the Father shall be sued in the Admiralty 25 Eliz. CCLVIII. The Earl of Huntington and the Lord Mountjoyes Case IT was agreed by the two Lord Chief Iustices 1 And. 308. upon conference had with the other Iustices in the Case between the Earl of Huntington and the Lord Mountjoy That where the Lord Mountjoy by Deed indented and inrolled bargained and sold the Manor of Camford to Brown in Fee in which Indenture a Clause was Proviso semper and the said Brown covenants and grants cum and with them the Lord Mountjoy his Heirs and Assigns That the said Lord his Heirs and Assigns might dig for Ore in the Wasts of Camford And also to dig Turf there to make Allom and Copperice without any contradiction of Brown his Heirs and Assigns that now here is a new Grant of an Interest to dig to the said Lord and his Heirs in the Lands aforesaid and not a bare Covenant and it was holden also that the said Lord could not divide the Interest granted to him in form aforesaid viz. To grant to another to dig one part of the said Waste c. But they were of Opinion That Brown his Heirs and Assigns notwithstanding
the said Grant to the said Lord Owners of the Soil there might dig there It was further moved in this Case That the said Lord had demised the said Interest to one Laycott who assigned it over to A. and B. and if the said Assignment to two were good or not was a further question for if to two so he might do to twenty and so a surcharge might be to the Tenant of the Soil And as to that the said Iustices were of Opinion That the said Assignment to two was good But the two Assignees ought not to work severally but together with one Stock and with such Workmen as belonged to them two And Note it was holden in this Case That this word Proviso being coupled with other words of Covenant and Grant did not create a Condition but should be of the same nature as other words of Grant. CCLIX Pasc 25 Eliz. In the Common Pleas. IT was found upon a Special Verdict in Trespass that the place where c. was Copyhold Land and that the Custom there is That every Feme covert there might devise her customary Lands to her Husband and surrender the same in the presence of the Reeve and six other persons and it was further found That A. was seized of certain Copy Land having Issue B. and C. his Daughters and dyed they both took Husbands and B. devised her part by her Will to her Husband in the presence of the Reeve and six other persons and afterwards at another day she surrendred to the use of her Husband who was admitted accordingly the Wife dyed the Husband continued the possession and the Husband of the other Daughter brought Trespass Rhodes Serjeant The Custom is not good neither for the Surrender nor for the Will for it is not certain what Estate she might devise by the Custom and also it is against reason that a Feme covert surrender to the use of her Husband And he cited the Case in Fitz. 13 E. 3. Dum fuit intra Aetatem 3. where Custom is pleaded in the City of Gloucest That every person might alien his Land when he knew how to tell 12 d. and to measure an Ell of Cloath and that Custom was disallowed for the incertainty for he ought to have shewed the certainty of the time scil at what age and the certain number of years Vide also 19 E. 2. Fitz. Gard. 127. That an Infant should be out of Ward when he could do as aforesaid And as to the Surrender it is against reason that a Feme covert should give to her Husband for the Wife hath not any will but the will of her Husband and the Statute of Wills utterly excepts Feme coverts as an unreasonable thing to suffer them to make Devises and although the Statute doth not extend to Customary Lands yet the like reason the like Law. But by Anderson the Equity of that Act extends to Copyholds as also doth the Statute of Limitations And it was said by some of the Serjeants that because the Husband was admitted Trespass did not lye against him for his Entry was continued with a lawful Ceremony In this case it was moved by Anderson If a Copyholder maketh a Lease for years by word if the Lessee might maintain Ejectione firmae and he conceived not for that ought to be a Title in facto and not by conclusion for neither the Iudge nor the Iury are estopped And he said that if the Tenant at will makes a Lease for years that it is not a good Lease between the parties to it but that the Lessee might well say that he had nothing c. Mead contrary And Anderson said The Book of 12 E. 4. 12. is not Law scil If Tenant at will makes a Lease for years it is not Disseisin but the said Book is contrary Also Anderson said That in the principal Case the Presciption is not well laid Quod quaelibet foemina cooperta viro poterit c. whereas there should be also words scil Et usae fuerunt c. And it was said That if the Devise be good then the Plaintiff and Defendant are Tenants in Common and the Action not maintainable Pasc 30 Eliz. In the Kings Bench. CCLX Jeroms Case JErome made an Affray of which complaint being made to the Mayor the said Mayor sent the Defendant being Constable to bring the said Jerome to him by virtue of which they went to the house of the Plaintiff and signified to him the command of the Mayor and would have brought the Plaintiff to him and the Plaintiffs Wife assaulted them and they gently lay their hands upon the Wife which is the said Assault Battery and Wounding c. upon which it was demurred Cooke for the Plaintiff Customs The Custom is not good nor reasonable vide Magna Charta 29. Nullus liber homo capiatur nec imprisonetur c. nisi c. per legale judicium parium suorum vel per legem terrae Ergo shall not be taken and imprisoned upon a bare suggestion Vide 24 E. 3. Br. Commissions 3. That where a Commission issued to apprehend all who were notoriously suspected for Felons and Trespassors although they were not Indicted it was holden against Law and therefore was revoked Vide the Statute of 1 E. 3. cap. 9. 25 E. 3. 4. 28 E. 3. 3. Justice of Peace not by Prescription 37 E. 3. 18. 42 E. 3. 33. 2. To be a Iustice of Peace doth not lye in Prescription for no Iustice of Peace was before the Statute of 1 E. 3. and the beginning of them being known Prescription cannot be 3. Admit that the Mayor was a Iustice of the Peace yet he cannot determine any thing out of Sessions 4. The Prescription is That the Mayor may send for him and doth not say within the City and it shall be an unreasonable Prescription to say that the Mayor may send for him for in such case in any place within England may he send 5. It is not shewed that they had a Corporation which might prescribe 6. The Wounding is not answered for Molliter injicere manus cannot be taken for a Wounding nor for an answer to the Battery Fleetwood Serjeant and Recorder of London If the Statute of Magna Charta should be observed no Felon is duly handled at Newgate and here we have not pleaded by way of Prescription but of Vsage Consuetudo and Vsage are all one And afterwards Iudgment was given for the Plaintiff for the Plea in bar was holden to be naught because the Wounding was not answered and the Custom is too general and also for the fourth Exception Mich. 32 Eliz. In the Kings Bench. CCLXI Goram and Fowks Case Prohibition THe Case was The Defendant libelled in the Spiritual Court that whereas he was Administrator to one A. and was bound in the Spiritual Court to bring in a true Inventory of all the Goods of the Intestate that the Plaintiff detained Jura Credita by reason of which
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
the whole matter is not any sufficient demand and so Wray Chief Iustice said CCLXXVIII Trin. 29 Eliz. In the Common Pleas. ACtion upon the Case was brought for these words Thou wouldst have stoln my Cloak if J.S. had not come in the way and thou art a Thief and I will prove it After Verdict it was found for the Plaintiff It was objected in Arrest of Iudgment That these words were not actionable For the first words Thou wouldst have stoln my Cloak c. do not by Law give any cause of Action and when the words subsequent Thou art a Thief are depending apon the said former words and to be construed as spoken in respect of them and upon that intent But the Opinion of the whole Court was to the contrary And that the said latter words should be taken and construed in abstracto by themselves as in gross and not as dependant upon the former words and afterwards Iudgment was given that the Plaintiff should recover Mich. 26 Eliz. In the Common Pleas. CCLXXIX Hungerford and Watts Case HUngerford brought an Action upon the Case againts Watts Words for that the Defendant had said That the Plaintiff had caused the Defendant to be arrested with forged Writs It was objected That the words were not actionable for it might be that the Writs were forged by strangers without the privity of the Plaintiff and that the Plaintiff not knowing them to be forged procured the Arrest But the Opinion of the Court was That the words were actionable for the word Caused extends as well to the Forgery as to the Arrest and so amounts to the slander of Forgery CCLXXX Mich. 19 Eliz. In the Common Pleas. Costs IN an Action upon an Escape the Plaintiff is Nonsuited It was holden that the Defendant should not have Costs Note The words of the Statute upon an Action upon the Statute of 23 H. 8. for any offence or tort personal to be supposed to be done immediately to the Plaintiff Notwithstanding this Action is quodam modo an Action upon the Statute 1. by Equity of the Statute of West 2. cap. 11. which giveth it expresly against the Warden of the Fleet Yet properly it is not an Action upon the Statute for in the Declaration in such an Action no mention is made of the Statute which see in the Book of Entries 169 171. and also here is not supposed any immediate personal offence or wrong to the Plaintiff And an Action upon the Case it is not for then the Writ ought to make mention of the Escape and that it doth not here and yet at the Common Law before the Statute of Westm 2. an Action upon the Case lay for an Escape and so by Dyer Manwood and Mounson Costs are not given in this Case And by Dyer upon Nonsuit in an Action upon the Statute of 8 H. 6. the Defendant shall not have Costs for it is not a personal wrong for the Writ is quod disseisivit which is a real wrong Mich. 29 Eliz. In the Common Pleas. CCLXXXI Hollingshed and Kings Case HOllingshed brought Debt against King and declared That King was bound to him in a Recognisance in 200 l. before the Mayor and Aldermen of London in interiori Camera of Guildhall in London Vpon which Recognizance the said Hollingshed before brought a Scire Facias before the said Mayor c. in exteriori Camera and there had Iudgment to recover upon which Recovery he had brought this Action and upon the Declaration the Defendant did demur in Law because that the Plaintiff in the setting forth of the Recognizance had not alledged That the Mayor of London had authority by Prescription or Grant to take Recognizances and if he had not then is the Recognizance taken coram non Judice and so void and as to the Statute of Westm 2. cap. 45. the same cannot extend to Recognizances taken in London which see by the words De his quae recordata sunt coram Cancellario Domini Regis ejus Justiciariis qui recordum habent in rotulis eorum irrotulantur c. and also at the time of the making of that Statute the City of London had not any Sheriffs but only Bayliffs And the Statute ordains That upon Recognizance Process shall go to the Sheriffs c. therefore not to them But the whole Court was clear to the contrary for we well know that they of London have a Court of Record and every Court of Record hath authority incident to it to take Recognizances for all things which do concern the Iurisdiction of that Court and which arise by reason of the matters there depending Another matter was Objected for that the Recognizance was taken in interiori Camera but the Court was holden in exteriori Camera therefore it was not well taken But as to that Anderson Chief Iustice said Admit that the Recognizance was not well taken yet because that in a Scire Facias sued upon it the Defendant shall not take any advantage he shall be now bound by that admittance As if one sues a Scire Facias as upon a Recognizance whereas in truth there is not any such Recognizance and the party pleads admitting such Record and thereupon Iudgment is given against him the same is not void but voidable And Fleetwood Recorder of London alledged many Cases to prove the Courts of the King ought to take notice that those of London have a Court of Record for if a Quo Warranto issueth to the Iustices in Eyre it doth not belong to them of London to claim their Liberties for all the Kings Courts have notice of them And at the last after many Motions the better Opinion of the Court was That the Plaintiff should recover Periam aliquantum haesitavit And it was said by Anderson and in a manner agreed by them all That if dependant this Demurrer here the Iudgment in London upon the Scire Facias is reversed yet the Court here shall proceed and take no notice of the reversal CCLXXXII Mich. 20 Eliz. In the Common Pleas. A Man seized of a Barn in which the Tythes of certain Lands have used to be inned let the same by these words Demises .. Demise and to Farm-let the Barn with all Tythes belonging to the same It was holden That by that Demise the Tythes did not pass but Tythes which had usually been demised with the Barn passed by such words as by the Demise of an House Cum omnibus terris eidem pertinent ' all the Lands pass which have used to be demised with the said House for the demising usually of the Tythes with the Barn makes the Tythes belonging to the Barn but not the Inning Mich. 30 Eliz. In the Common Pleas. CCLXXXII Haltons Case Recognisance Inrollment A Recognizance was acknowledged before J. S. who was one of the Masters of the Chancery and before the same was Inrolled the Conusee dyed the point was whether at the request of the Executors
Tenants and therefore ought not to joyn c. It was Adjourned Temps Roign Eliz. In the Kings Bench. CCCLVII The President of Corpus Christi Colledge Case NOte It was holden by Cholmley Serjeant Plowden and many others in the Case of the President of Corpus Christi Colledge in Oxford That if the said Master or President of any such Colledge by his Will deviseth any Land to his Colledge and dyeth such Devise is void For at the time when the Devise should take effect the Colledge is without a Head and so not capable of such Devise for it was then an imperfect Body And so it was holden by the Iustices upon good advice taken thereof CCCLVIII Temps Roign Eliz In the Kings Bench. IN a Warrantia Chartae the Defendant said that the Plaintiff had not any thing in parcel of the Land the day of the Writ brought If in a Praecipe quod reddat the Tenant aliens and afterwards vouches the Vouchee is not bound to enter into the Warranty But here in this Case it may be That at the time that the Plaintiff requested the Defendant to warrant he was Tenant of the Land in which Case the warranty is attached and then if ever the Land be recovered against him he shall have this Writ and of this Opinion was Brown Iustice For the Land which the Defendant had at the time of the request is bound by the request but if he alieneth after the request he shall not have the Warranty CCCLIX Mich. 9 Eliz. In the Kings Bench. A Man seized of a Manor in which there are divers Copy-holds and the Custom there is That if any Copyholder leaseth his Land above the term of one year that he shall forfeit his Copyhold A Copyholder committed such a Forfeiture and afterwards the Lord leased the Manor for years and the Lessee entred for the Forfeiture and Weston said that his Entry was not lawful for although that the Heir may enter for a Condition broken in the time of his Ancestor because he is privy in blood yet the Lessee or Feoffee cannot do so for he is a Stranger such a one of whom an Estranger shall not take advantage Dyer If this forfeiture be preserved by Homage and enrolled in the Court Rolls the Lessee may well afterwards enter for by the forfeiture the Copyhold Estate is void and determined as if a Leafe for years be made rendring Rent upon Condition to cease if the Rent be not paid here presently by the not payment the Interest of the term is determined and of that the Grantee of the Reversion shall have advantage CCCLX Mich. 10 Eliz. In the Common Pleas. AN Action upon the Case was brought for stopping of 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. have used time out of mind c. to have a way over the Land of the Defendant to the Park of D. to carry and recarry Wood necessary for the said House from the said Park to the same House and further declared That the Defendant Obstupavit the way It was moved by Carus That upon that matter no Action upon the Case lay because 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 or the Defendant had but an Estate for years then an Action upon the Case would lye and not an Assize and it is not material If the Plaintiff had but an Estate for years in the Park quod fuit concessum per totam Curiam It was also holden That this word Obstupavit is sufficient without any more without shewing any special matter of the stopping as the erecting of any Gate Hedge Ditch c. for Obstupavit implyes a Nusance continued and not a personal disturbance as forestalling or saying to the Plaintiff upon the Land where c. that he should not go over or use the said way for in such case upon such a disturbance an Action upon the Case lyeth But as to a local and real disturbance 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 By which he was disturbed of his way and yet is and so the continuance of the disturbance is alledged and of that Opinion was the whole Court. Leonard Prothonotary He hath declared of a Prescription habere viam tam pedestrem quam equestrem pro omnibus omnimodis Carriagiis and upon that Prescription he cannot have a Cart-way for every Prescription est stricti juris Dyer That is well observed and I confess that the Law is so and therefore it is good to prescribe habere viam pro omnibus Carriagiis without speaking either of a Horse or a Foot-way CCCLXI. A. Enfeoffed B. to the intent that B. should convey the said Land to such person as A. should sell it A. sold it to C. to whom B. refused to convey the Land and thereupon he brought an Action upon the Case against B. And by Wray Chief Iustice and Gawdy Iustice here is a good consideration for here is a trust and that which is a good consideration in the Chancery is in this case sufficient Shute Iustice was of a contrary Opinion And afterwards Iudgment was given for the Plaintiff Mich. 29 Eliz. In the Common Pleas. CCCLXII Sir Richard Lewknors Case SIr Richard Lewknor seized of Wallingford Park Ante 162. made a lease thereof for years and dyed the Lessee granted over his term to another excepting the Wood the term expired and an Action of Waste was brought against the second Lessee by the Coparceners and the Husband of the third Coparcener being Tenant by the Courtesie Shuttlewood and Snag Serjeants did argue That the Action would not lye in the form it was brought and the first Exception which was taken by them was because the Action was general viz. Quod fecit vastum in terris quas Sir Roger Lewknor pater praedict ' of the Plaintiff cujus haeredes ipsae sunt praefat ' Defendent demisit And the Count was that the Reversion was entailed by Parliament unto the Heirs of the Body of Sir Richard Lewknor and so they conceived that the Writ ought to have been special cujus haeredes de Corpore ipsae sunt For they said that although there is not any such Writ in the Register yet in novo Casu novum est apponendum remedium And therefore they compared the Case to the Case in Fitz. N. B. 57. viz. If Land be given to Husband and Wife and to the Heirs of the Body of the Wife and the Wife hath Issue and dyeth and the Husband committeth waste the Writ in that case and the like
A TABLE OF THE Principal Matters Contained in this BOOK Abatement of a Writ IN Account the Writ abated for part and for part the Plaintiff had Judgment 39 In Action upon the Case and why 55 Account Of the King against a Stranger 32 Actio personalis moritur cum persona Trover is an Action personal for it is grounded upon a personal wrong and ariseth upon a disceit and wrong and if there was no Conversion then an Action of Detinue should lye 44 Where one takes my Horse and dyes I shall not charge his Executor 46 If a Smith pricks my Horse my Executors shall not have an Action for it ibid. Action upon the Case Assumpsit Where it is requisite for the party in an Action upon the Case to express the Assumpsit with the Request and where not 2 If one promise in consideration c. to assign to J. S. the Lease of a Stranger for this an Action will lye Adjudged 2 If A. Prisoner at the Suit of B. escapes and being at liberty promiseth to B. that if he will permit him to be at large c. that he will pay to him 10 l. for this no Action will lye Adj. 3 A Promise against a Promise will maintain an Action upon the Case ibid. By an Executor to a Creditor upon forbearance to pay his Debt makes him lyable to pay it of his own Goods Adj. 1. ibid. Will lye against the Executors of A. upon his Promise at full Age to save one harmless who was bound with him for his Debt when he was an Infant 5 Will not lye against an Executor if he promises to pay a Debt and hath not Assets ibid. Nor is an Heir subject to an Action upon such a promise if he hath nothing by Descent 6 An intire Assumpsit cannot be severed by Action ibid. To avoid Controversies and Suits is a good and sufficient Consideration to ground an Assumpsit upon 31 The Defendant exhibited a Bill to the Justices of Peace complaining that the Plaintiff is a disquieter of his Neighbours c. and served a Process upon J. S. on a Sunday and the Justices to whom it was exhibited awarded Process against the Plaintiff to find Suerties for his good Behaviour by virtue of which he was taken and imprisoned For this an Action of the Case will not lye 35 Action upon the Case for Words What words are actionable and what not 24 54 121 181 Action upon the Statute Upon 5 Eliz. of Apprentices holden clearly That if one hath been an Apprentice for seven years at any Trade mentioned within that Statute he may exercise any Trade named in the said Statute although he hath not been an Apprentice to it 9 Action upon the Statute of Hue and Cry. 18 Upon the Statute of 5 Eliz. of Perjury 25 Upon the Statute of 5 Eliz. of Usury 43 Upon the Statute of Hue and Cry 51 Upon the Statute of 23 Eliz. of Recusancy 54 Upon the Statute 4 Eliz. of Perjury 105 Upon the Statute of 1 Eliz. of Leases made by Bishops 61 Upon the Statute of Hue and Cry 85 Upon the Statute 5 E. 6. for buying of Woolls 103 Upon the Statute of 31 H. 8. of Partition 106 Upon the Statute of Hue and Cry 191 Alien Purchaser 82. suffers a Common Recovery 84 Amendment If a Writ of Error be brought and delivered to the Chief Justice of the Common Pleas and allowed by him under his hand the Record cannot afterwards be amended 50 Day given by the Court to amend the Count in Disceit 123 Of a Writ of Quare Impedit openly in Court by a Clerk of the Chancery 12 Amercement Of the Sheriff for making a Retorn contrary and repugnant in it self 57 Appeal If Robbery may be brought 20 years after the Robbery committed and the party robbed shall not be bound to bring it within a year and a day 16 If the Defendant be attainted by Verdict in an Appeal of Robbery the fresh Suit shall be inquired of but otherwise if he be attainted by Outlary 48 Assignment Of Debts to the King. 80 No Bonds shall be assigned to the Queen but such as are made for payment of Mony. 9 Attaint Where the King is sole party against the Subject and the Jury find for the King no Attaint lyeth 46 But where the Suit is tam pro Domino Rege quam pro seipso contrary ibid. Attornment What shall be a good Attornment what not 23 Surrender of a Copyhold Reversion with the Rent to the use of a Stranger and his admittance thereupon are in the nature and so amount to an Attornment 25 If A. seized of a Manor Lease the same for years rendring Rent with Clause of Re-entry and afterwards levy a Fine sur Cognizance de droit c. to the use of himself and his Heirs and the Rent being demanded is behind he cannot re-enter nor avow for the Rent but is without remedy for the same without Attornment 34 If A. seized of a Rent in fee grants the same by Fine to B. to the use of C. there needs no Attornment to the Conusee because all the right of the Rent is out of the Conusor and transferred to Cestuy que use instantly 50 Attornment doth not give a right but is only a consent 129 Bargain and Sale. IF the Bargainee levies a Fine and within six months the Deed be inrolled the Land shall pass by the Fine 4 Bayl. If a Scire Facias issue against them before a Capias issue against the Principal and they be taken they shall be put to their Writ of Error 36 Bills The King may exhibit one Bill in the Exchequer for several causes arising within several Counties and it shall be good 26 Carrier SEnt with a Letter by one to a Merchant for Merchandizes to send them to him receiving a sum of Mony the Merchant sent them by the Carrier without mony the Buyer shall not be charged for the mony the Bargain being conditional and it was the Merchants folly to trust the Carrier with those Wares 7 Chancery May compell a Tenant to Attorn 8. 184. Common and Commoner A Commoner cannot kill Conies which destroy his Common 7 In what Case Common appurtenant by Prescription sans number is improveable by the Lord of the Waste 41 Condition Broken by Lessee for years 5 Destroyed in part good in part 27 Divided ibid. Grantee of parcel of the Reversion is an Assignee within 32 H. 8. of Conditions 28 Apportioned ibid. Suspended ibid. Conditions by Act in Law divided not by Act of the Party ibid. Statute of 32 H. 8. of Conditions taken by Equity 29 Condition suspended in part is suspended in all ibid. Shall be taken favourable for him who is to perform it 70 Consultation Was granted because the Prohibition was general where it ought to have been special 16 Conversion In Trover is Traversable and therefore ought to be certainly alledged 45 Conveyance By the Heir upon Intrusion 60 Copyholder Baron Surrenders Femes
Assumpsit MEgot brought an Action upon the Case against Broughton and Davy upon Assumpsit and it was found by Nisi Prius for the Plaintiff and afterwards before the day in Bank Broughton dyed and after Iudgment given Davy the other Defendant brought a Writ of Error in the said Court scil in the Kings Bench where Iudgment was given and assigned an Error in fact scil the death of Broughton depending the Writ vide 2 R. 3. 21. and this Case is not like to Trespass for Trespass done by many are several Trespasses but every Assumpsit is joynt If the Court may reverse their own Judgment and if the Court upon this matter might reverse their own Iudgment was the Question the Case was not resolved but adjourned CLII. Trin. 31 Eliz. In the Common Pleas. IT was found by Office that J. S. held by the Queen and dyed without Heir whereas in truth he had an Heir scil A. S. who leased the Lands for an hundred years and afterwards traversed the Office Office trove and had an Ouster le mayne le Roy. Now the matter was moved in the Common Pleas by Fenner in behalf of the Sheriffs of London before whom the matter depended to whom it was said by Anderson Chief Iustice Conveyance by the Heir upon Entrusion That where the King is entituled by an Office to a Chattel as to a wardship c. there if the Heir without any intrusion bargain and sell levy a Fine or lease for years during the possession of the King it is void against the King but shall bind the Heir but where the King is intituled to the Fee-simple as in this Case such a Conveyance is meerly void Hil. 31 Eliz. In the Kings Bench. CLIII Samuel Starkeys Case HOmine replegiando by Samuel Starkey to the Sheriffs of London Who returned that the said Starkey was indicted to be de mala fama deceptione Domini Regis with divers other general words and namely that he had deceived J. S. a Clothier and that he was a common Cozener and thereof being found guilty Iudgment was given by the Mayor and Recorder That he should be disfranchized of his Freedom and should be fined and imprisoned for a year and further said that he had not paid his Fine nor the year expired Cook Such Return hath not been seen and it is directly against the Statute of Magna Charta Wray Chief Iustice gave a Rule that the Sheriffs should make their Return at their perils before such a day Hil. 31 Eliz. In the Kings Bench. CLIV. Bushy and Milfeilds Case IN Error brought by Bushy and Milfeild It was assigned for Error that where in the first Action the Iury gave four pence Costs and the Court gave de incremento three and twenty shillings that in the Iudgment the four pence was omitted Error It was the Opinion of the Court That for that Cause the Iudgment should be reversed although it be for the advantage of the Party so where the Iudgment is quod sit in misericordia where it ought to be Capiatur Hil. 29 Eliz. In the Common Pleas. CLV Bingham and Squires Case BIngham brought Debt upon an Obligation against Squire Obligation 3 Leon. 151. The Condition was If Squire did procure a Grant of the next Avoidance of the Archdeaconry of Stafford to be made to the said Bingham so as the said Bingham at the said next Avoidance may present that then c. The Case was That afterwards by the means and endeavour of Squire the Grant of the next Avoidance was made to Bingham but before the next Avoidance the present Archdeacon was created a Bishop so as the presentment of that Avoidance belonged to the Queen It was adjudged in this Case that the Condition was not performed and that by reason of these words scil So that Bingham may present And afterwards Iudgment was given that the Plaintiff should recover Hil. 26 Eliz. In the Common Pleas. CLVI Mansors Case A. Man bound himself in an Obligation to make an Assurance of Lands the first day of Jan. and the last day of December he to whom the Assurance was to be made scil the Obligee the said last day before Sun-setting came to the Obligor with a Deed ready to be sealed and prayed him to seal it who said to him that he was a man unlearned and said he would shew the same to his Counsel and then he would seal it And if the Obligation was forfeited or not because he did not seal it presently was the question And Fenner argued that it was not for when a thing is to be done upon request then he who makes the request ought to give sufficient and convenient time to perform the Condition I agree That where the Condition is absolute there if the Condition be not performed he shall not be excused by the default of another As if a man be bounden to marry A.S. and she will not marry him or to enfeoff J. S. and he refuseth as 3 H. 6. is the Obligation is forfeited Yet in these Cases if the Obligee himself be the cause that J. S. will not take the Feoffment or he will not marry A. S. the Obligation is not forfeited So in our Case for by his late request it is impossible for me to perform the condition for before my Counsel shall have perused it the time will be past If a man be bound to enfeoff one of Lands in Barwick request ought to be made so long time before that after that he may go to Barwick So if one be bounden to pay 1000 l. to J.S. he ought to make his Tender so long time before the last instant of the last day that the mony may conveniently be told This Case was in question A man made a Feoffment of the Manor of D. with the Appurtenances to which an Advowson was appendant and covenanted that the Manor upon request should be discharged of all manner of Incumbrances and before that the Feoffor had granted the next Avoidance to J. S. the Incumbent died the Clark of the Grantee was instituted and inducted the Feoffee requested the Feoffor to discharge the Incumbrance The opinion of many Sages of the Law was that he had not made his request within convenient time So if a man be bounden to infeoff the Obligee to have and to hold to him and his Heirs as long as J. S. shall have Issue of his Body If the Obligee demand Assurance after the death of J. S. without Issue yet the Obligation is not forfeited In 22 E. 4. if Lessee for the life of another continues possession for two or three weeks after the death of Cestuy que use where he could not have more speedy notice of his death he shall not be a Trespassor In 15 Eliz it was holden in Wottons Case That where he was bound to make a Feoffment to J. B. and J. B. came to him in Westminster Hall and tendred to him a Writing
several Declarations the Declaration of the Feoffees shall stand for that the Land passeth from them So if Cestuy que use and his Feoffees make a Feoffment in Fee 21 H. 7. And to that purpose he put the Case reported by Plowden 15 Eliz. 464. Husband and Wife seized in right of the Wife they levy a Fine sur Conusans de droit come ceo c and the Conusee renders the Land to the Husband and Wife and to the Heirs of the Husband the Husband dieth the Wife discontinues the Land the same is not within the penalty of the Statute of 11 H. 7. For notwithstanding the Wife be now in by the purchase of her Husband yet that purchase is not within the meaning of that Statute because the Law respects the original Seisin which was in the Wife and so it was adjudged Vide Term. Mich. 30 Eliz. Pasc 25 Eliz. In the Kings Bench. CLXXXVIII The Earl of Northumberlands Case THe Earl of Northumberland brought Debt for Arrearages upon Account The Defendant shewed that before the said Account the Plaintiff of his own wrong imprisoned the Defendant and he so imprisoned assigned Auditors and so the Account was made by Duress It was holden a good Plea by the Iustices of both Benches Pasc 25 Eliz. In the Common Pleas. CLXXXIX Clark and Kemptons Case IN Ejectione firmae the Case was 1 Leon. 141. Smith and Burds Case Co. 10 Rep. 129. b. Payment of Rents The Defendant leased for years to the Plaintiff rendring rent payable at Michaelmas and the Annunciation or fourteen days after Et si contingat the said rent to be behind post aliquod terminorum vel festorum praedictorum in quo solvi debet by the space of 14 days post aliquod festum praedict that then c. It was adjudged in this Case that the Lessee had fourteen days after the said fourteen days mentioned in the Reservation without danger of the penalty of the condition and the last words post aliquod Festorum praedict for the contrariety shall be rejected Pasc 31 Eliz. In the Kings Bench. CXC Harris and Whitings Case DEbt upon an Obligation by Harris and his Wife as Executors of Giles Capel against Whiting the Condition was that if the Obligor before the Feast of Pentecost pay such a sum so as the Obligee be ready at the payment thereof to enter into a Bond of 200 l. with Sureties to purchase such Land c. that then c. The Defendant pleaded that he was ready to pay c. and that the Obligee was not ready to enter into such Bond ut supra The Plaintiff Replicando said that he was ready absque hoc that the Defendant was ready to pay It was moved that the Traverse was not good for the first Act here was to be done by the Obligee viz. to enter into the Bond ut supra for otherwise the Obligor had not any means to compel the Obligee to enter into it But by Wray Chief Iustice the first Act is to be done by the Obligor and at the Payment the other party is to do that which to him belongs to do Trin. 29 Eliz. In the Kings Bench. CXC Ralph Morris Case RAlph Morris and his wife libelled against one in the Ecclesiastical Court for that the Defendant called the Wife of the Plaintiff Veneficam Sortilegam Incantatricem Daemoniorum And now came the Defendant into the Kings Bench surmising that the matter of the Libel is determinable by the Law of the Land and thereupon prayed a Prohibition and it was holden that although the Offence of Witchcraft be in some cases punishable in our Law yet the same doth not take away the Iurisdiction of the Ecclesiastical Law and to call one Witch generally an Action doth not lye in our Law as it hath been adjudged But to say He hath bewitched such a one an Action doth lye And by Wray Witchcraft which is made Felony by any Statute is not punishable by the Ecclesiastical Law but in case of Slander upon such a Witchcraft such slanderous words are of Ecclesiastical Iurisdiction and for Witchcraft which is not Felony the Ecclesiastical Court shall punish the party and afterwards in the principal Case a Consultation was awarded Trin. 29 Eliz. In the Common Pleas. CXCI. Tyrrels Case TYrrel Warden of the Fleet of an Estate of Inheritance let the said Office for years and afterwards is condemned in London in many Actions of Debt and is there detained in Execution for the sum of fourteen hundred pounds and now one Iden sued the said Tyrrel in the Common Pleas in an Action of debt for 50 l. and had Iudgment to recover and thereupon the said Tyrrel is brought to the Bar and Iden prays he be committed to the Fleet in Execution for his Debt It was first moved by the Court if there was not a practize between Iden and Tyrrel for to deliver him out of the Compter in London to a more easie Prison c. But it was moved by Fenner who was of counsel with the Creditors in London that it should be very dangerous to commit Tyrrel Prisoner to the Fleet because he had the Inheritance of Custody of the said Prison and if the Lessee under whose guard he shall be surrenders his Interest or if he doth not pay his Rent so as in default thereof Tyrrel re-enter or if that the Term expire before that the Creditors of Tyrrel be satisfied then here is an Escape and discharge of Execution and we are without remedy But as to that it was said by Rhodes Windham and Anderson That if the Lessee surrender it shall be an Escape in him and he shall answer for the same Afterwards by Order of the Court Tyrrel was committed to the Fleet in Execution and the Sheriffs of London discharged Mich. 29 Eliz. In the Common Pleas. CXCII Owen and Morgans Case THe Case between Owen and Morgan which was agreed Trin. 29 Eliz. was this Richard Owen was seized of Ante 26. Post 222. c. and levied a Fine to Owen and Morgan and to the Heirs of Owen and they granted and rendred the said Land to the said Richard and Lettice his Wife not Party to the said Writ of Covenant nor to the Conusans and to the Heirs of the body of the said Richard the Remainder over to the said Owen now Demandant in Fee The Husband alone without the Wife suffered a Common Recovery the Wife died the Husband died without Issue If this Recovery by the Husband only should bind the Remainder was the Question And now the Lord Anderson declared openly in Court for himself and in the name of his Companions the other Iustices that the Demandant ought to have Iudgment that the said Recovery should not bind the Remainder But first he spake to the Fine it self for the Wife is not named in the Writ of Covenant nor the Conusans but in the Render the Land is rendred to the Husband and Wife and the Heirs
that the same is not any Claim to avoid the said Fine upon the Statute of 4 H. 7. Pasc 29 Eliz. CCXIII. The Queen and Sir John Savells Case A Bill of Intrusion was exhibited by the Queen in the Exchequer against Sir Robert Savell Kt. who pleaded in bar her pretence and upon Issue joyned the matter was tryed by the Records and thereupon Iudgment was given for the Queen and an Injunction for the Possession awarded accordingly Sir Robert dyed and now Sir John Savell Son and Heir of the said Sir Robert brought a Writ of Error in the Exchequer Chamber upon the Statute of 31 E. 3. The perclose of which Writ was ad grave damnum ipsius Johannis Savell filii haeredis dicti Roberti It was objected against the Writ That no Writ of Error upon the said Statute of 31 E 3. lay upon such proceedings which at the time of the making of the said Statute was not in force For tryal of an Issue in the Exchequer by Record was enacted by the Statute of 33 H. 8. and the Statute of 31 E. 3. extended to give a Writ of Error upon such Iudgments which were given by Verdict Confession or Demurrer and not upon tryal by Records which was given but of late times But to this objection it was answered by the Lord Chancellor and the other Iudges That long time before the said Stat. of 33 H. 8. Issues joyned in the Exchequer have been tryed by the Records and he when he was the Queens Solicitor had seen divers Presidents to that intent in the time of Hen. 6. Mich. 29 Eliz. In the Kings Bench. CCXIV. Houtiers Case DEbt was brought upon a Concessit Solvere according to the Law of Merchants and Custom of the City of Bristol Exception was taken because he did not mention the Custom in his Declaration And because in the end of his Plea he saith Protestando se sequi querelam secundum Consuetudinem Civitatis Bristol the Plea was awarded good and the Exception disallowed CCXV Mich. 29 Eliz. In the Kings Bench. A Man was indicted upon the Statute of 4 Eliz. of Perjury in a Court-Leet And the Indictment was That he at the Leet of the Earl of Bath super Sacramentum suum coram Senescallo c. Exception was taken to it because it saith at the Leet of the Earl of Bath whereas every Leet is the Kings Court although that another hath the profit or commodity of it And it was said that the Steward of a Leet is not an Officer of Record and also his Oath was If he had done a Rescous or not with which he was charged And by Drew It is not within the Statute for it ought to be either before a Iury in giving Evidence or upon some Article But the Iustices in that were of opinion against him Mich. 25 Eliz. In the Common Pleas. CCXVI Howen and Gerrards Case IT was adjudged in this Case That Partition of Lands made by the Bayliff of a Franchize was not good within the Statute of 31 H. 8. of Partition but it ought to be done by the Sheriff himself Mich. 28 Eliz. In the Kings Bench. CCXVII Strangder and Burnells Case AN Action upon the Case of Trover of Goods and converting them to his own use in Ipswich The Defendant pleaded That the Goods came to his hands in Dunwich in the same County and that the Plaintiff gave to him all Goods which came to his hands in Dunwich absque hoc that he is guilty of any Trover or Conversion in Ipswich It was holden to be a good manner of pleading by reason of the special Iustification Vide 27 H. 6. But where a Iustification is general the County is not traversable at this day Vide 19 H. 6 7. 62 Eliz. In the Common Pleas. CCXVIII Hodges Case IF one enfeoffeth his Son and Heir apparent and no use is expressed nor Consideration it was said It should be to the use of the Son and so hath the Law been taken and so it is in Case of a Covenant to stand seized to the use of the Son. The Court said that there was a difference betwixt the Cases or in the Case of Feoffment they seemed to be of Opinion that the Deed should have no operation but in the other Case it may be otherwise upon construction of the Result of the Vse to the Father 28 Eliz. In the Kings Bench. CCXIX. Mark Stewards Case AN Assumpsit before Action brought may be discharged by word otherwise after Action brought Mich. 30 Eliz. In the Common Pleas. CCXX Verney and Verneys Case IN Dower by Verney against Verney The Case was That Lessee for years by Fine to whom the Land was rendred by Fine for years upon the Default of the Tenant prayed to be received and it was Counter-pleaded because the Statute of Gloucester gave no Receit but where the Termor might have Recovery by Writ of Covenant but where the Lease as in our Case doth commence by render by Fine there cannot be any recovery by Covenant But it was the Opinion of the Lord Anderson That such a Termor shall be received CCXXI Mich. 32 Eliz. In the Exchequer Chamber IN the Exchequer Chamber before the Chancellor Treasurer c. A Writ of Error was cast upon the Statute of 31 E. 3. cap. 12. It was moved by Egerton Solicitor to the Queen for the Defendant That the Writ of Error ought to abate for false Latine for the Writ is Pertenet where it ought to be Pertinet But by Manwood Anderson and Wray The same is no Exception but notwithstanding that the Court may proceed to the Examination of the Errors For the same is not properly a Writ but rather a Commission to the Chancellor Treasurer c. and therefore it was ordered that the Party should proceed to the assignment of the Errors Mich. 31 Eliz. In the Exchequer CCXXII The Queens Fanes and the Archbishop of Canterburies Case THe Queen brought a Quare Impedit against Fane 1 Leon. 201. the Archbishop of Canterbury the Bishop of Chichester and Hudson Incumbent and counted that John Ashburnham was seized of the Advowson of Burwash and was Outlawed in an Action of Debt during which Outlawry in force the Church voided by which it did appertain to the Queen to present The Archbishop and Bishop pleaded that they claimed nothing but as Metropolitan and Ordinary Fane pleaded That King E. 4. ex gratia sua speciali c. and in consideration fidelis servic c. granted to the Lord Hastings the Castle and Barony of Hastings and Hundred c. Et quod ipse haberet omnia Bona Catal. Tenentium residentium non residentium aliorum resident quorumcunque hominum de in Castro Baronia c. seu infra eadem pro numero debit c. tam ad sectam Regis c. quam c. utlagatorum Et quod ipsi liceret per se vel ministros suos c. and from him derived to
the Office. Vide Stanford Prerogat 54 55. and Vide 20 E. 4. 11. A. seized of a Mannor with an Advowson appendant is attainted of Treason the Church void the King without any Office shall have the presentment But admitting that it is not in the King without Office yet the Pardon of 23 Eliz. doth not extend to it For the words of the Pardon are Treasons Felonies Offences Contempts Trespasses Entries Wrongs Deceits Misdemeanors Forfeitures Penalties and Sums of Moneys and if by any of these words the matter be helped is to be considered and if any thing shall help it it is the word Forfeiture But I conceive that the same doth not extend to this matter for although it be an ample word yet it shall be construed to extend beyond the words accompanied with it which concern only personal things as Contempts Wrongs Trespasses as the Statute of 13 Eliz. cap. 10. which is penned by general words as Colledges Deans and Chapters Parsons Vicars and others having Spiritual Promotions that Statute doth not extend by construction to Bishops and they have Spiritual Promotion yet the Statute shall be construed to extend to the Parties named and other Inferiour Orders and Degrees and shall not be extended higher So in the Commission of the Peace ad diversas Felonias alia Malafacta c. those general words do not extend to Treason c. Vide for the Residue of this Case Venable and Harris's Case which was the same Case and is Reported in Leonard 2 Part fol. 122. Placito 169. Pasc 33 Eliz. In the Common Pleas. CCXXIX Downhall and Catesoy's Case IN a Formedon by Downhall against Catesby 3 Leon. 267. the Parties were at Issue and it was tryed by Nisi prius It was moved in Bank because that some of the Iury did eat and drink before they gave their Verdict that the Court would not receive the Postea Curia that we cannot do for we not know whether your Information be true or not and this matter ought to be examined by the Iustices of Assize or Nisi prius before whom the Trial was and they are to certifie thereof and then we shall have good cause to stay the Entry of the Postea In that Case it was said If any of the Iurors eat and drink before their Verdict at their own Costs it doth not make the Verdict void but if at the Costs of the Plaintiff or Defendant it is otherwise CCXXX Hil. 29 Eliz. In the Common Pleas. THe Sheriff took an Obligation of a Prisoner bailable upon condition that he should personally appear in the Kings Bench c. It was holden a good Condition not against the Statute of 23 H. 6. So if the Condition had been that he should appear for to answer contrary that he shall appear and answer for in the principal Case the word personally is not of substance for although he appears by Attorney yet the Condition is well performed and Iudgment was given for the Plaintiff Anderson reclamante Vide 27 Eliz. B. R. Sedford and Cutts Case 32 Eliz. In the Common Pleas. CCXXXI Haselwoods Case THe Case of Haselwood A seized of Land is indebted to the King by Obligation and enfeoffed B. of his Land And the Case of Fleetwood 15 Eliz. was vouched where it was holden That in purchase the debtor of the King was lyable But by Pigot who was of Counsel with Haselwood the Obligation in this Case was made before the Statute of 33 H. 8. or otherwise he should be charged 32 Eliz. CCXXXII Sir William Pelhams Case SIr William Pelham was Surveyor of the Ordinances and delivered of the Kings money to Painter Clerk of the Ordnance It was holden That for that money the Queen might have Account against Painter See this Case before Sect. 81. Trin. 29 Eliz. In the Common Pleas. CCXIV. Ognell and Vnderhills Case IN Replevin the Case was as appeared upon the pleading That Rob. Bouchier was seized of a certain Farm called Cruchefield Grange and leased the same to Sir William Raynsford for thirty years who dyed thereof possessed by reason of which the Interest thereof came to Raynsford as Executor of the said Sir William Raynsford who assigned the said Farm except a parcel of it called Hobbes to Sir Henry Bear for parcel of the term and afterwards assigned the said parcel called Hobbes for part of the term to Frekington and others and afterwards granted the residue of the said term not expired to the said Bear and Frekington and afterwards the said Rob. Bouchier granted a Rent-charge of 40 l. per annum percipiendum de omnibus terris renementis quibuscunque vocat the Grange of Cruchefield in the Parish of Stoneleigh in the County of Warwick nuper in tenura occupatione William Raynsford milit nunc in tenura occupatione Hen. Bear. Bouchier granted the reversion of Hobbes to Lewknor in Fee to whom Scarre releaseth all his right estate and demand in the said Land called Hobbes the Lease expired the rent behind Lewknor leased at will to R. the first Question was If the said Rent-charge shall be said issuing out of the said Lands called Hobbes for if c. then by that Release the rent is gone But the whole Court was clear of Opinion That the rent was not issuing out of Hobbes but out of the Lands then in the possession of Bear and not out of the Lands in the possession of Frekington Although it was objected by Walmesley Serjeant That the words in the Grant of the rent in tenura occupatione Bear shall be construed in the disjuncive quasi sive and then the Close called Hobbes although it was not in the Occupation yet it was in tenura of Bear. The Matter was at another day argued by Fenner Serjeant for the Plaintiff and he much relyed upon the word quibuscunque in the Grant of the Rent de omnibus terris quibuscunque commonly called Cruchefield Grange As if I grant to you all my Trees my Apple-trees shall not pass but if the Grant was omnes arbores meas quascunque they pass and that by the Emphasis of this word Quibuscunque So if I grant you Common for your Cattel in such a place none shall have Common but those which are Commonable shall have Common there contrary where the Grant is pro averiis quibuscunque And it was adjudged in the Chancery in the Case of the Bishop of Ely That where the said Bishop leased all the Demeasns of a Manor for years that by the said Lease the Park within the said Manor should not pass But perhaps if such a Lease had been Omnes singulas terras dominicales quascunque the Park would have passed And afterwards the Counsel of the Plaintiff seeing that the Court was of Opinion with the Defendant took Exception to the pleading The Defendant made Conusans ut Ballivus Administratoris of the Grantee of the Rent and doth not shew the Letters of Administration And as to
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
was 100 years since Quod mirum videbatur Curiae hic Audita Querela pleaded And afterwards the Court said to Walter Sue your Audita Querela and upon that you shall have a Supersedeas Mich. 29 Eliz. In the Common Pleas. CCLXIX Sir Richard Lewknors Case Post 225. SIr Richard Lewknor seized of Willingford Park leased the same for years and dyed the Lessee assigned over his term excepting the Woods and Vnderwoods standing growing and being in and upon the premises the Assignee committed Waste the term expired the daughters and heir of Sir Rich. and the husband of the third daughter Coparceners being dead as tenant by the Curtesie brought an Action of Waste against the Assignee and the opinion of the Court was that the husband ought not to joyn in that Action for he can recover nothing for damages he cannot have for the waste was not done to his disinheresin and the Land he cannot have because the term is expired Snag Serjeant I conceive that the exception in the Assignment is good for an Exception of Trees by the Lessor himself in his Lease is good and by reason thereof the Lessee shall not have Fire-bote Hey-bote c. which otherwise he should have and the property of the Trees is in the Lessor and also the Soil 14 H 8. 1 2. 28 H. 8. Dyer 19 vide 46 E. 3. 22 a Lease for years was made with such Exception and the Lessor brought an Action for the Trees cut Qâ—are clausum tregit and that proves that the Soil also is excepted and then the Action of Waste lyes against the Lessee who hath excepted to himself the Wood and the Soil and not against his Assignee Walmsley Serjeant to the contrary And he said where Land is demised the absolute property of the great Trees is in the Lessor and the Lessee hath in such case a qualified property And he cited 2 H. 7. 14. the Lessor commands the Lessee to dig gravel in the Land demised or licenseth him so to do such commandment or licence is not good for the lessor hath nothing to do with the Gravel nor hath any property in it but such licence to cut Trees had been good and Vide 10 H. 7.2 3. Waste is assigned in the breaking de uno muro lapideo the Defendant pleaded the licence of the Plaintiff to break it and upon that they were at Issue And he said If the lessor cutteth trees upon which the lessee brings an Action of Trespass he shall not recover damages according to the value of the trees cut down but for the Trespass to the Soil and for the loss of the Shadow and the Acorns c. and if the lessee cutteth down trees the lessor cannot take them because he hath other remedy Where a reversion is granted to A. and B. and to the Heirs of B. Waste is done A. and B bring an Action of Waste B. shall recover all the damages and A. nothing which proves that all the Interest in the Land demised is in B and not in A. therefore here in the principal Case the Exception is void for that which the Law allows to the former is only House-bote Hedge-bote Plough-bote Fire-bote And he said that the lessee fells the trees and the vendee cuts them down that waste lyeth against the lessee which proves that in that case the Soil doth not pass with the trees by the exception of the trees the Soil is also excepted as a servant to the trees viz. to nourish the trees and if he who excepts the trees cuts them down or roots them up the lessee shall have the Soil And he said that for the property that the lessor hath in the trees if he cuts them down the rent shall not be apportioned And if the lessor granteth the trees to one and his heirs there shall be no Attornment which had been requisite if the Soil had passed At another day it was argued by Shuttleworth Serjeant and exception taken because it is too general scil Quod fecit vastum in terris quas Sir R. Lewknor pater duarum querentium cujus Haeredes ipsae sunt praefato Ford dimisit c. And the Plaintiffs counted the Reversion was entailed by Act of Parliament to the said Sir R. Lewknor and so the Writ ought to be special scil Cujus Haeredes de corpore ipsae sunt for although there be not any such form in the Register yet that is to no purpose for in novo casu novum est remedium apponendum And he compared it to the Case in F. N. B. 57. where Land is given to husband and wife and the heirs of the body of the wife the wife dyeth the husband commits waste the Writ shall be Idem A. de domibus in B. quas tenet ad vitam suam ex dimissione quam inde fecit praefato A. M. quondam uxori ejus haeredibus de corpore ipsius M. matris dicti R. cujus haeres ipse est exeuntibus And Vide 26 H. 8. 6. Cestuy que use leaseth for years the lessee commits waste the Feoffees bring an Action of waste the Writ containeth the special matter although there was not any such Writ in the Register Fenner and Walmsley contrary for there is not any such form in the Register Cujus haeredes de corpore c. and we are not to devise a new form in this case but it is sufficient to shew the special matter in the Count also the words in the Writ are true for the Plaintiffs are Heirs to Sir R. Lewknor and the Count is well pursuant and agreeing to the Writ for they are Heirs although they are but Heirs special of his Body And the Court awarded the Writ good and said that the case is not like the case in Fitz. N. B. 57. nor to 26 H 8. before cited for in the first case the Plaintiffs cannot shew of whose Demise the Tenant holdeth unless that he also shew the special Conveyance scil That the Land was given to the Husband and Wife and to the Heirs of the Body of the Wife for always the Demise to the Tenant ought to be shewed certain which cannot be in both these cases if not by disclosing also the Title to the Inheritance and the Estate in it Another Exception was taken to the Count That where the two Defendants were Tenants in Common of the said Lands demised the Writ is tenuerunt which is intended a Ioynt-tenure But this Exception was not allowed And Vide 44 E. 3. in Waste the Plaintiff counted upon divers Leases and Fitz. N. B. 60. F. and the Writ shall suppose one Tenet and not divers Tenets Another Exception was taken to the Writ because the two Coparceners and the Heir of the third joyned in the Writ whereas the Husband of the third Sister being Tenant by the Curtesie was alive Vide 22 H. 6 21 22. But that Exception for the Tenant by the Curtesie joyns to no purpose for
the Land be holden of the Queen and so Nature cannot be transferred therefore neither this Proviso And so is the Tenure of Frankalmoigne 35 H. 6. 58. and it should be a great rigour to take the bridle out of the hands of the Natural Vncle into the hands of Iustice which is Manus regia And he cited the Case of the Lord Norris where it was rul'd That where the Act of Attainder of Norris gave to the King all Rights Titles c. yet a Writ of Error was not given thereby Manwood Actions are not expresly given by the said Act of Attainder As to the second point I conceive that the Coveyance is become void when the terms within the two years are passed and shall not expect until the two years be expired for the Inrollment ought to be within the term so that if all the terms of the two years be past it is now impossible for to inroll the Deed within the time limited by the Statute and then by 29 H. 8 the Conveyance is void and then is the Queen seized in Fee at the time of the making of the Lease by the Attainder of Sir Francis As to the Certificate without Office it is not sufficient to entitle the Queen to the Land and I deny the difference put by Popham between a Condition to be performed on the part of the Patentee and on the part of the King I confess that a Certificate to inform the Queen or her Councel of the quantity quality value c. of the Land is good without Office but not to entitle the Queen de novo to the Inheritance of another I grant that the Commission is of Record but the tender of the King is matter in pais and not of Record Three things ought to be observed in every Certificate to make it a good and lawful Certificate according to the course of the common Law unless it be in cases of necessity as in case of Ouster le mere c. 1. It ought not to be in the absence of the party 2. It ought to be pendente placito convocatis in ea parte convocandis 3. It ought to be directed to a known Officer but a thing certified by a private person being no Officer cannot be good Also a Certificate according to the course of the common Law being good is not traversable At another day the Case was argued by Egerton Solicitor for the Queen The Condition is given to the Queen by 33 H. 8. and also by 29 Eliz. and this Condition in it self is a general and ordinary Condition and rests not in privity and such an Act as may be made by any stranger as well as by Sir Francis himself scil the tender of the King. The reasons which moved Sir Francis to knit this Condition to the Conveyance were natural but the Proviso and the performance of it not tryed to Nature and therefore all the cases of privity are here out of Seisin As to the Lord Brays Case the same was not any Wardship but only an Order for the government or his Son and Heir for the Wardship of the Father in the Son is not a Chattel in him As to the Case of the Lord Norris the Writ of Error could not accrue to the Queen for by the Act of Attainder no Actions were given to the King And here is not any such privity as hath been pretended for by the words of the Proviso the Ring might be tendred to his Executors or Administrators therefore the Condition might be tendred when he is dead therefore without privity Title for alienation in Mortmain of Lands purchased by a Villain of the King or for a Condition broken are not in the King before Office But here the Condition is to be performed on the part of the Queen which her Royal Majesty cannot perform and therefore Commissioners are appointed to do it which they have done and upon the Commission retorned have informed the Queen of all the performance of it and all is now upon Record And there is a great difference between Certificates as in our case and Certificates which have been cited on the other side which are used to make Tryals upon Issues joyned betwixt party and party and in such Certificates I confess the Law as Cook hath argued The Sheriff is not known to be such an Officer but by his Commission under the Great Seal he upon a Writ of the King to him directed Summons Disseisins Attaches c. these are matters in fait but when the Sheriff hath retorned his Service then it is become matter of Record So in our case the retorn of the tender c. where the Queen is to be informed of the Lands of the Subject which she is to have there ought to be an Office but here the Queen is to do an act and that she hath done under the Great Seal by Commission by the Retorn of which she is in the whole matter therefore there needs not an Office to inform her of that which she her self hath done by another Authorized by her to do it And he said that the Leases made by the Queen being Tenant pur auter vie were not void ab initio but from the time of the two years but now the Estate of the Queen for life is determined therefore also the Leases derived out of it Exception hath been taken to the Information scil Praedictus Franc ' per Indenturam suam factam inter c. without saying sigillo suo sigillat ' that is good enough for facta esse non potuit nisi etiam sit sigillat ' therefore facta includes sigillat ' And afterwards Trin. 33. Eliz. this Case was argued by the Barons Clark puisne Baron said That Iudgment ought to be given for the Queen And first he said I conceive that here upon this Indenture is no use created in Sir Francis for he shall pay for a Licence of Alienation if the Lands be holden in chief and they themselves in pleading the uses say Virtute cujus the said Sir Francis was seized in his Demesne as of Freehold for his life the remainder thereof c. Although this Condition be tyed to Nature and rests in privity as hath been objected and so inseparable yet by Act of Parliament it may be transferred Impropriations Frankalmoign Frankmarriage Guardianship in Socage cannot be given away regularly but by Act of Parliament they may which vide for Impropriations by the Statute of 31 H. 8. Impropriations of Abbies and Priories dissolved nam Parliamentum omnia potest It may alter the nature of Lands make Gavelkind discendable according to the course of the common Law and so of Borough-English Attaint Error Disceit c. are Actions which lye in privity yet by Act of Parliament they may be transferred And in the case of the Lord Norris If the Act of Attainder had given to the Queen all Actions she might have had a Writ of Error And we see by experience That the
But all the Court held the contrary and that the Copy should bind the Feoffee and the ceremony of admittance was not necessary For otherwise every Copyholder in England might be defeated by the sole act of the Lord viz. his Feoffment But the Lord by his own act which shall be accounted his folly hath lost his advantages viz. Fines Heriots and such other Casualties Mich. 29 Eliz. In the Common Pleas. CCCLXV Boxe and Mounslowes Case THomas Boxe brought an Action upon the Case against John Mounslowe That the Defendant slandred him in saying That the said Thomas Boxe is a perjured Knave and that he would prove the said Thomas Boxe had forsworn himself in the Exchequer c. and supposed the said words to be spoken in London 4 Feb. 28 Eliz. Et praedict ' Johannes Mounslowe per Johannem Lutrich Attornatum suum venit defendit vim injuriam quando c. Et dicit quod praedict ' Tho. Boxe actionem suam versus eum habere non debet quia dicit quod praedict ' Thomas Boxe being one of the Collectors of the Subsidies before the speaking of the said words viz. 27 28 Eliz. in Curia Scaccarij apud Westm ' did Exhibt a Bill against the said John Mounslowe containing That the said John being assessed in ten pounds in Goods the said Thomas Boxe came to him and demanded of him sixteen shillings eight pence which the said John Mounslowe did refuse to pay and that demand and refusal was supposed to be in London in Breadstreet Et pro verificatione praemisiorum adâ—unc ibid ' Sacramentum Corporale per Barones praefat ' Thomae Boxe praestitit The said Thomax Boxe swore the said Bill in substance was true ubi revera the said John Mounflowe did not refuse per quod the said John Mounslowe postea viz. praedict tempore quo c. dixit de praefat ' Thoma Boxe praedict verba c. pâ—out ei bene Leuit The Plaintiff replyed that the Defendant spake the words de injuria sua propria absque causa per praefat Johannem Mounslowe superius allegata Et hoc petit quod inquiratur per Curiam praedict defendens similiter And a Venâ—re Facias was awarded to the Sheriffs of London and it was found for the Plaintiff and damages 400 l. And now it was moved in Arrest of Iudgment that there was no good Trial nor the Issue well joyned for the Issue doth consist upon 2 points triable in several Counties viz the Oath which was in the Exchequer and that ough to have been tryed in Middlesex and the matter which he affirmed by the Oath viz the demand and the refusal to pay the subsidy and that was alledged to be in London and is there to be tryed and the Issue viz. de 〈…〉 propria goeth to both for the ubi revera will not amend the Case as Penam Iustice said and both are material For the Defendant ought to prove that the Plaintiff made such Oath and also that the substance and matter of the Oath was not true for otherwise the Plaintiff cannot be proved perjured And therefore the Counties here if they might should have joyned in the Tryal And the Opinion of the Court was against the Plaintiff For Anderson and Wincham said That if this Issue could have been tryed by any one of the Counties without the other it should most properly and naturally have been tried in Middlesex where the Oath was made for the Perjury if any were was in the Exchequer But they said The Issue here was ill joyned because it did arise upon two points triable in several Counties which could not joyn whereas the Plaintiff might have taken Issue upon one of them well enough for each of them did go to the whole and if any of them were found for the Plaintiff that he had sufficient cause to recover Gawdy moved that it should be helped by the Statute of Ieofails which speaks of mis-joyning of Issues Anderson The Issue here is not mis-joyned For if the Counties could joyn the Issue were good but because that the Counties cannot joyn it cannot be well tryed But the Issue it self is well enough Windham and Rhodes were of the same Opinion but Periam doubted it Anderson said That if an Issue tryable in one Court be tryed in another and Iudgment given upon it it is Error And afterwards Lutrich the Attorney said That it was awarded that they should re-plead Nota quod mirum For first the Statute of 32 H. 8. cap. 30. speaks of mis-joyning of Process and not mis-joyning of Issues and admit that this Case is not within any of those Clauses each of them being considered by it self yet I conceive it is contained within the substance and effect of them being considered together Also I conceive it is within the meaning of both Statutes viz. 32 H. 8. cap. 30. 18 Eliz. cap. 14. for I conceive the meaning of both Statutes was to waste delays circuits of Actions and Molestations and that the party might have his Iudgment notwithstanding any defect if it were so that notwithstanding that defect sufficient title and cause did appear to the Court. And here the Plaintiff hath sufficient cause to recover if any of the points of the Issue be found for him For if it be found that the matter and substance of the Oath be found true which might be tryed well enough by those in London the Plaintiff had cause to recover Wherefore I conceive that the Verdict in London is good enough and effectual And note that Rhodes said that he was of Counsel in such a case in the Kings Bench betwixt Nevil and Dent. CCCLXVI Mich. 19 Eliz. In the Common Pleas. 3 Leon. 103. THe Case was A. granted B. a Rent-charge out of his Lands to commence when J. S. dyes without Issue of his Body J. S. dyes having Issue and the Issue dyeth without Issue Dyer said That the Grant shall not take effect for J. S. at the time of his death had Issue and therefore the Grant shall not then commence and if he dyeth then not at all by Manwood And Dyer and Manwood said If the words had been to begin when J. S. is dead without Issue of his Body then such a Grant should take effect when the Issue of J.S. dyes without Issue c. And they said That if the Donee in tail hath Issue which dyeth without Issue the Formedon in Reverter shall suppose that the Donee himself dyed with Issue for there is an Interest And there is a difference betwixt an Interest and a Limitation For if I give Lands to A and B. for the term of their lives if either of them dyeth the Survivor shall hold the whole But if I give Lands to A. for the lives of B. and C. now if B. or C. dyeth the whole Estate is determined because it is but a Limitation and B. and C. have not any Interest CCCLXVII Temps Roign
which Ayliffe concessit Wray Chief Iustice was absent in the Star-Chamber Trin. 26 Eliz. In the Kings Bench. XLV Harvey and Harveys Case Suit for Legacies Prohibition CLare Harvey libelled against Sebastian Harvey the Executor of Sir James Harvey their Father for a legacy bequeathed to him by his Father in his Will. By which he willed that after his death his Goods should be divided and parted betwixt his Children according to the laudable custom of London and averred in his libel that the Goods and Chattels whereof the Testator died possessed amounts to such a sum and that it belonged unto him being one of his children to demand so much Virtute Legationis praedict The Defendant came and prayed a Prohibition and Wray Chief Iustice conceived he ought to have it for here is not any legacy but the Testator setteth forth his meaning that his pleasure is that the custom of London should be observed in the disposition of his Goods and the said Clare is put to his Writ de rationabili parte Bonorum But yet afterwards a special Consultation was granted Pasc 27 Eliz. In the Common Pleas. XLVI Sandersons Case Leet NOte It was adjudged by the Court that Pound-breach is not inquirable in a Leet for it is not a common Nusans But Rhodes Serjeant said that excessive Toll is inquirable in a Leet Vide Book of Entries 390. XLVII Pasc 37 Eliz. In the Common Pleas. Abatement of Writ IN a Quare Impedit by the Queen exception was taken to the Writ because the words were quod permittat ipsam praesentare ad Rectoriam de D. where it ought to be ad Ecclesiam the Court awarded that the Writ should be openly amended in Court by a Clerk of the Chancery Amendment XLVIII Pasc 27 Eliz. In the Common Pleas. Pleadings IN a Writ of Entry for Disseisin the Tenant said that the House in demand is within the City of London and that the said City is an ancient City and that King Henry 3. concessit Civibus Civitatis praedict quod non implacitentur de terris tenementis suis c. extra Muros Civitatis praedict and said that he himself is a Citizen of London and demanded judgment of the Writ and to the Pleading he further said Sed illis rectum teneatur infra Civitatem praedictam secundum Consuetudinem Civitatis praedict Exception was taken to the Plea because the Tenant did not shew before that by their custom they ought to be impleaded And by the Opinion of the whole Court the Tenant ought to have shewed that the Citizens for their lands there ought to be impleaded in the Hustings c. And the general words in the Plea Sed illis rectum reneatur infra Civitatem praedictam secundum consuetudinem Civitatis praedict do not supply the defect aforesaid And afterwards it was awarded that the Tenant plead Ouster Mich. 21 Eliz. In the Common Pleas. XLIX Hunt and Sones Case AN Action upon the Case by W. Hunt against W. Sone Assumpsit 2 Leon. 107. Owen 42. 3 Cro. 118. 1 Roll. 29. 30. ibid. The Plaintiff declared Quod cum idem Hunt was seised in his Demesn as of Fee of certain lands and shewed the same in certain praedict Sone in consideration that the said Hunt permit the said Sone occupare terras praedict ab eodem die 20 Julij 27 Eliz. usque ad secundum diem Novembris which should be in Anno 1589. assumed and promised that he the said William Sone ad festum omnium Sanctorum proxime sequend 10 l. 2 s. 6 d. ac ab inde annuatim durante dict termino 20 l. 5 s. ad festa Annunciationis Beatae Mariae ac omnium Sanctorum per aequales portiones solvend eidem Hunt bene fideliter contentare vellet at licet praedict W. Hunt permisit praefat Sone occupare terras praedict a dict 20 die Julij 27 Eliz. Usque ad secundum diem Novemb. 28 Eliz. Licetque etiam post dict 20 diem Julij 27 Eliz. ante praedict diem secund Novemb. An 28 Eliz. dict fest omnium Sanctorum An. 27. Supradict ac fest Annunciationis Beatae Mariae Virginis ac fest omnium Sanctorum 28 Eliz. praeterierunt praedict tamen W. Sone dict 10 l. 2 s. 6 d. ad praedict fest omnium Sanctorum proxime sequend post permissionem assumptionem praedict ac aliam 10 l. 2 s. 6 d. ad fest Annunciationis 28 Eliz. ac alia 10 l. 2 s. 6 d. ad fest omnium Sanctorum An. 28. Eliz. superdict nondum solvit The Defendant pleaded that the Plaintiff entred into parcel of the Premises 6 October 28 Eliz. eadem occupare eundem Sone non permisit upon which they were at Issue and it was found for the Plaintiff it was moved in stay of Iudgment that the Plaintiff had no cause of Action before that all the Term was expired for it is an entire Assumpsit and cannot be severed by action and therefore it was said that if I promise to pay you 10 l. viz. at such a Feast 5 l. and at such a Feast other 5 l. there before the last day of payment no Action lieth for the sum of 20 l. is one sum entire But if I promise to pay another at Easter next 10 l. and at Midsummer as much here they are several Assumpsits and upon default of payment of the first sum an Action will lie without excepting the latter payment But at last the Court agreed That Iudgment notwithstanding that exception should be given for the Plaintiff and that the Declaration was good enough as well in respect of the Exception aforesaid as also that the word Licet was effectual enough to set forth the permission L. Hil. 31 and 32 Eliz In the Common Pleas. A. Disseised B. of two Acres of Land and leased one of them to C. at will and the other Acre to D. at will and they entred accordingly B the Disseisee by Lease leased both Acres to E. for years and entred into one of the Acres in the name of both and sealed and delivered the Lease to E. It was holden by the Court to be a good Lease to maintain an Ejectione firmae of both Acres LI. Mich. 32 Eliz. In the Common Pleas. 2 Cro. 655 656 plus 2 Roll. 416. Johnson versus Smart cont A. Seised of certain Lands and having two Sons devised part of his Lands to his eldest Son in tail and the other part of his Lands to his younger Son in tail with this clause in the Will that if any of his Sons dyed without Issue that then the whole Land should remain to a stranger in Fee and dyed the Sons entred into the Lands devised to them respectively and the younger Son died without issue and he to whom the Fee was devised entred It was adjudged That this Entry was not lawful and that the eldest Son should have the Land by the implicative devise Mich. 32 Eliz. In the
the now Earl of Huntington as heir c. and the said Earl being so seized and the said Ashburnham seized of the said Advowson as appendant to the Mannor of Ashburnham holden of the said Barony the said Church during the Outlary in force became void For which cause the said Thomas Fane ad Ecclesiam praedict usurpando praesentavit the said J. H. who was admitted and instituted and demanded Iudgment If c. with this that the said Tho. Fane will aver that the said Church of B. is and at the time of the said Grant was infra praecinct libertatis franchesiae praedict quod praedict Manerium de Ashburnham tempore concessionis praedict was holden of the said Barony And the Incumbent pleaded the same Plea and if by that Grant of King E. 4. to the Lord Hastings scil Bona Catalla the presentment to the Church passed or not was the Question Shuttleworth of Counsel for the Queen he said and confessed That the Queen might grant such a Presentment but it ought to be by special and sufficient words or such words so as it might appear to the Court by them that the intent of the Queen was to grant such a thing for the general words Omnia Bona Catalla would not pass such a special Chattel in the Kings Grant. And he said he conceived that by the words subsequent that no Goods and Chattels should pass by such Grant but such which might he seized the which the Advowson of a Church could not be Et quod ipsi liceret per se vel Ministros suos ponere se in seisinam 8 H. 4. 114 115. The King granted to the Bishop of London that he should have Catalla Felonum Fugitivorum de omnibus hominibus tenent de in terris feodis praedict de omnibus residentibus infra terr feoda praedict ita quod si praedicti homines tenentes resident de in terris feodis praedict seu aliqui eorundem seu aliquis alius infra eadem terras feoda pro aliqua transgressione sua seu quocunque alio delicto vitam vel membrum debeat vel fugerit judicio stare noluerit seu aliquam aliam transgressionem fecerit pro qua ipse Catalla sua perdere debeat in quocunque loco justitia de ea fieri debeat Ipsa Catalla sint ipsius Episc per Ministros Episc fn manus ipsius Episc sesiri possint Tirwhit The Goods of those that are put to penance do not pass so the Goods of a Felo de se Vide 42 Ass 5. where one being impanelled upon the Grand Inquest before the Iustices of Oyer and Terminer pleaded the Kings Charter of Exception from Inquests and because in the said Charter there was not this Clause Licet tangit nos haeredes nostros without challenge it was rejected and he charged and sworn And if the King grant to me to appropriate an Advowson which in truth is holden of the King such a Grant is void So if there be not special words by which it may appear that the King hath notice of it and that his intent was that the Grant should extend to the same it doth not pass 16 E. 3. Fitz. Grants 58 and 33 E. 3. Grants 103 So here this Presentment is a special Chattel and it is not usually intended or thought upon when a man speaks generally of Goods and Chattels but that it passeth yet the Presentment doth not lye for the Defendants for they do not derive any interest under that Grant but are meer strangers to it and therefore they shall not take any advantage in laying this Grant in the Queens way for the Queen hath good title against all persons but those which claim under the said Grant but that is nothing to the Defendants For one cannot cross the title of the King if he doth not make a title to himself As 39 Ass 18. 17 Ass 11. if the title of the King be found by a false Office the party grieved cannot traverse the title of the King without making a title to himself and then the King may choose whether he will maintain his own title found by the Office or traverse the title of the other Walmesley to the contrary this title of Presentment is a Chattel Rex habebit omnia Catalla felonum c. Terminus Annorum is a Chattel so Exitus proficua terrarum utlagatorum pro felonia so a right of Action for Goods so it is of an Obligation made to the party delinquent therefore also a title to present therefore if a title to present shall accrue to the King by such general words it shall pass also from the King by such words and as to that which hath been objected That the Grant of King E. 4. extends only to such Goods and Chattels which may be seized He cited the Case 39 H. 6. 35. where the Grantee of a Rent-charge for a term of years granted Omnia Bona Catalla sua tam viva quam mortua the Rent passed and yet the Grantee could not put him in Seisin of it when he would but ought to expect the day of payment And this title to present is not a thing in action for if no disturbance be made the Party may have the benefit of it without any Action Anderson held that this title to present could not pass by these general words Bona Catalla for they do not extend to a Right or things in Action but to such things only which are commonly known and understood by such words By grant of Goods Chattels real do not pass For when men speak of Goods Houshold-stuff Mony and the like personal things only are understood So a man cannot be said to have a Chattel but where he is possessed of it and here this Interest is but Jus praesentandi Periam This Interest is a Chattel for if the Church became void and before Presentment the Patron dyeth his Executors shall have the Presentment for that it was a Chattel vested in their Testator c. 19 Eliz. In the Kings Bench. CCXXIII. Hide and Hills Case IN Ejectione firmae by Hide against Hill The Case was Nicholas Throgmorton Tenant in Tail without licence of the King went beyond Sea into Italy and there married an English Woman and there continued in the Service of Cardinal Pool and their practised traiterously against the State here and against his Allegiance within which time he had Issue a Son named Francis It was holden that the said Son was not inheritable to the Tail for if a Subject goeth beyond Sea with the Licence of the King and there continueth longer than his appointed time by that he loseth the benefit of a Subject It was further given in Evidence That the said Nicholas was attainted of Treason in the time of Henry 8. and afterwards went beyond Sea ut supra and returned in the time of Queen Mary and was restored by Act of Parliament And
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.
to it because it ought to be Liberam Elemosinam without puram perpetuam Also it ought to be with a double ee and not Elemosinam sed non allocaturâ— for as to the first Exception it is but Surplusage and as to the other it is the common course Another Exception was taken to the Writ because that the words are Quod clamat este jus haereditat ' sua without saying in jure Collegij Anâ—erâ—on The Writ is good enough If a Parson pleads that he is seized he shall say in jure Ecclesiae for he hath two Capacities and without those words he shall be intended to be seized in his own right But if an Abbot plead that he was seized he needs not such words for that he hath not any other capacity And so of Dean and Chapter Mayor and Commonalty and afterwards the Writ was awarded good and that the Tenant should answer over Vide Liber Entries 236 237. It was also moved If the Colledge should count of his Seisin within 30 years because that the Corporation never dyes and then if he count upon his own possession And it was holden That if the Warden of the Colledge that now is was ever Seised he ought to count upon a Seisin within 30 years But upon the Seisin of his Predecessor he ought to count of a Seisin within 60 years as another common person For the change of the Head if such Seisin is as the dying seized and descent of a common person Mich. 15 Eliz. In the Kings Bench. CCLXXVIII Wood and Chivers Case IN Ejectione firmae between Wood and Chivers the Case was That the Bishop of Salisbury let the same Chivers the Manor of Lanington for 80 years for 40 l. rent payable at four usual Feasts upon Condition that if the rent be behind by the space of three Months after any of the Feasts in which c then a re-entry The Bishop dyed after confirmation J. S. was created Bishop who granted to R. the Office of Receiver of all his Revenues c. exercend ' per se vel Deputat suum and afterwards the Bishop made a special Letter of Attorney to the said R. to demand the rent and if it were behind to re-enter R. at the last day of the three Months came to the Capital Messuage of the said Manor an hour before the setting of the Sun for to demand the rent due at Midsummer then last past but none was there on the part of Chivers the Lessee to pay the rent for which R. left his Servant in the Hall of the said Messuage commanding him to stay there and if any came to pay the said rent that he give to him Notice thereof and afterwards he went out of the same House and walked in a Lane which was within the Gate of the House and did not return into the House until the Sun was set and then he returned and because the rent had not been paid he digged a Clod of the Land in the Name of the Bishop and so re-entred And afterwards the Bishop let the said Manor to W. for three years by Deed signed and Sealed and because Câ—â—vers continued his possession notwithstanding the re-entry he made also a Letter of Attorney to M. to enter into the said Manor in the Name of the Bishop and to deliver the said Deed of the said Lease to the said W. upon the Land as his Deed and these two Deeds the Bishop in his Chamber delivered to the said W. but not as his Deed But he said unto him Here is the Lease and a Letter of Attorney to M. and he shall enter in my name and deliver to you the Deed of his upon the Land as my Deed upon the Land Whereupon he took the two Deeds and delivered them over to M. who by force thereof entred upon the Land c. An Exception was made because it doth not appear here that the Bishop delivered the Letter of Attorney to M. himself nor to the use of M. and then it may be taken that the Deed of Letter of Attorney was delivered to M. to keep only and not as his Deed. But that Exception was now allowed For it was holden that the Livery in the Manor was good enough and so the Letter of Attorney sufficient for in all Deeds of Feoffments in which Letters of Attorney are contained the Livery of the Deed is to the Feoffee only and no mention made of any delivery to the Attorney for by such Letter of Attorney no Interest is to pass but only an Authority And note It was resolved by all the Iustices That in the computation of these three Months there ought to be allowed to every Month 28 days And now we are to see if this Rent be well demanded because the demand was made an hour before Sun-setting and then the party went out and walked in the Lane till the setting of the Sun without any other demand And it was moved that this walking in the Lane which was not a common High-way but a private way and that the House of the said Farm was of the one side of the Lane and the Farm-land on the other and so the Land parcel of the Farm and then his walking there is a continuance of the demand quod Catlin concessir was the Lane a High-way or not for the Manor is on both side And it was agreed by all the Iustices That if the Lessor cometh to the Land before the last hour viz. in the Morning or in the Afternoon and demands the Rent and afterwards goes off the Land and is not there at the last instant of the day the same is not a sufficient demand although that return be presently after the Sun is set And by Gerrard Attorney General If the Lessor cometh upon the Land at the last day before the last instant as in the morning c. and demands the Rent and continues there upon the Land till the Sun be set without making any other demand yet the demand for the Manor is good enough for his presence there is the continuance of the demand Quod fuit concessum per totam Curiam And by Catlin If the Lessor after his demand in the Morning departeth off the Land and before the last instant returneth and stays upon the Land till Sun-setting there is the continuance of a demand without any further demand which Wray Chief Iustice concessit And it was holden in this case That where R. left his Servant in the House to stay there and to signifie to him that if any person came to pay the Rent that that was not any continuance of the demand for R. himself was but a Servant and he in that business could not make a Servant And Catline said That the Bishop himself might by word command his Servant to demand a Rent and to make a Re-entry Quod fuit concessum but in our Case R. had not commanded his Servant to make any demand And so here upon