or Ignominious Signes as Gallowes c. The Punishment is by Indictment as in the Starre-Chamber Palmers Case 8. Jac. fo 126. banco regis THe Gardian in Chivalry shall have the single value of the Marriage of the Heire without tender otherwise the Heire may defeate the Lord by Marriage or goe beyond the Sea and so prevent the Lord of any tender if it were requisite Caudreyes Case 33. Eliz. in Trespasse THe Jury found the Statute of 1. Eliz. cap. 1. and cap 2. and that the Plaintiffe was deprived for Preaching against the Booke of Common Prayer by the Bishop of London una cum assensu c. Resolv 1 The deprivation was good for the first offence because the Act of 1. Eliz. for uniformity of Common Prayer doth not abrogate 1. Eliz. for Ecclesiasticall Jurisdiction without negative words and by an expresse proviso the Jurisdiction of the Bishop is saved Resolv 2. That sentence given by the Bishop by assent of his Collegues ought to be allowed by our Law Resolv 3. The Commissioners shall be intended Subjects borne c. Stabitur praesumptionj c. Also it is found that the King authorized them Secundum formam Statuti Resolv 4. The Act of 1. Eliz. for Ecclesiasticall Jurisdiction was onely declaratory for the King being an absolute Monarch and head of the body politick had plenary power to minister justice to his Subjects in Causes Ecclesiasticall and temporall See Circumspecte agatis 13. E. 1. and Articulj Clerj 9. E. 2. Reges sacro oleo uncti sunt spiritualis jurisdictionis capaces See there diverse judgements Lawes and Acts of Parliament cited to prove the Kings supremacy in Causes Ecclesiasticall The End of the Fifth Booke THE SIXTH BOOK Where Services intire shall be Apportioned Bruertons Case 36. Eliz. In the Court of Wards Fol. 1. LORD and Tenant of three Acres by Homage Fealty a hawke and Suite of Court the Tenant makes a Feoffement of one Acre the Feoffee by the common Law shall hold by all intire services annuall and casuall and the Statute of Quia emptores Terrarum doth not extend to intire services but by the Statute of Marlebr c. 9. the Feoffees shall make but one Suite and he who doth it shall have Contribution against the others if they are severally infeoffed otherwise if jointly 2. Intire services shall be multiplied by the Act of the Tenant and extinct by the Act of the Lord as if he purchase part 3. By Act of the Lord intire service for his private benefite is extinct otherwise if it be for the publick good for works of Charity Devotion or administration of Justice 4. If part comes to the Lord by act in Law yet the intire service remaines except in Case where Contribution is to be made for the Lord shall not contribute 5. If part comes to the Lord by Act in Law and of himselfe as by recovery in a Cessavit all the intire services are gone Where the Paroll shall demurre for the nonage of the Demandant and where the Tenant shall have his Age. Markals case 35. Eliz. com banco fo 3. IN a Formedon in the remainder by an Infant of a remainder limitted to his Father and his heirs the tenant cannot pray that the parol may demur but in a Formedon in the reverter he may In actions auncestrell the Tenant may pray that the parol may demurre because a right onely discends to the Infant and the Law will not suffer him to sue for feare that he may loose for want of understanding but in possessory Actions he cannot because then every one will put Infants out of possession and it would be mischevious if they should not regaine their possession untill full age So it is in all Writs where the cause of action happens in the time of the Infant And as to Actions auncestrell they are of two sorts Droiturell and possessory the first is where a right onely discends from the Auncestor and the Infant ought to lay the explees in the Auncestor and there the Tenant without plea pleaded may pray that the paroll may demurre but if the Auncestor were never in possession as in this case he was not and the Infant himselfe is the first in whom it vests there without plea pleaded hee shall not pray that the Parol may demurre but if a right discend from an auncester who was in possession although the Action doth not discend the Tenant may pray that the parol may demurre as if Non compos mentis alien and dye In actions auncestrell possessory the parol shall not demurre without plea but if at the common Law the Tenant had pleaded a feoffement of the auncestor then he may pray c. but the Statute of Gloucester cap. 2. aideth that in writs of Cosinage Besaiell and aiell but this extends not to other actions in a Formedon in the discender where an Infant recovers but a limitted estate the Parol shall not demurre without plea in an Assize or assize of Mortdauncester the Parol shall not demurr because the Jury is to appeare the first day and try all things The Statute of Westm 1. cap. 46. Age is taken away in entry upon disseisin where fresh suite is made but an Infant shall have his age in all reall Actions where he is in by discent and the Action is not founded upon his owne wrong except in Nuper obijt and Partitione facienda where both are in possession or attaint for the mischiefe of the death of the Petty Jury The Statute of West 2. cap. 40. Ousteth the age of the Vouchee in cuj in vita and Sur cuj in vita although that the Tenant will answer if the parol ought to demurre yet the Court ought to award that the parol shall demurre Sir John Molyns Case 40. Eliz. in Scaccar fo 5. KIng Edward the third Lord Abbot of Westminster Mesne and C. Tenant C is attainted of Treason the King grants to Sir Jo. Mo. Tenendum de nobis álijs capitalibus dominis feodi illius per servitia c. the Mesnalty is revived Obj. 1. That the tenure shall be Per servitia inde debita at which time no service was due to the Mesne 2. An expresse tenure of the King is limitted and it cannot be immediatly holden but of one To the first it was answered that there are sufficient words to renew the Mesnalty because the intention of the King appeares to be so and it is reasonable that the Mesne who offended not should not suffer losse 2. It shall be holden imediatly of the Abbot and mediatly of the King Wheelers Case 43. Eliz. in Scaccario fo 6. THe King grants Land Tenendum by a Rose Pro omnibus servitijs this is Socage in chiefe and the tenure shall be by fealty and a Rose and Pro omnibus is to be intended of other services which the Law doth not implie Resolutions and Diversities when a barre in one action shall be a barre in another Ferrers Case 41. Eliz. Com.
prescribe In modo decimandi but not In non decimando And the reason is because he is not except in speciall Cases capable of Tythes at the common Law before the Statute of 32. H. 8. Cap. 7. And therefore without speciall matter shewing it shall not be intended that he hath any Lawfull discharge and in favour of the Holy Church although it may have a lawfull comencement the Law will not suffer this prescription In non decimando to put it to the Tryall of lay men which sooner will straine their conscience for their private benefit then render to the Church the duty which belongeth to it A spirituall person that was capable of Tythes at the common Law in pernancy may prescribe to be discharged of Tythes generally or to have a portion of Tythes in the Land of another Before the Counsell of Lateran every man might give his tythes to any spirituall person that he would and if the Lands of the Bishop were discharged in his hands absolutely by prescription the demising it to a lay man cannot make it chargeable and the Bishop might reserve the greater Rent And in discharge of Tythes the Judges of our Law doe know that the Ecclesiasticall Judges will not allow any such allegation and therefore a Traverse Absque hoc quod judices placitum c. recusarunt is insufficient for the refusall is not materiall for the party might have a prohibition before any plea pleaded by him but in some Cases the refusall is traversable as t was adjudgd in Morris and Eatons Case where t was pleaded that the plaintiffe did not read the Articles c. and that the Ecclesiasticall Judge refused this Plea But the truth is a man may prescribe that hee and all others whose estate he hath in the mannor of D. time out of remembrance have paid to the parson of C. for the time being one certaine pension yearly for the maintenance of Divine service there in contentation of all Tythes renewing or happening within the same Mannor and prescribe in respect of the pension payd c. to have all the Tythes within c. and this was adjudgd good in Banco Regis Mich. 39. Et. 40. El. Rotulo 199. And that a lay-person may sue for the Tythes c. For at the beginning it shall be intended that the Lord was seised of the whole Mannor before any tenancy was derived out of the same and then by composition or other lawfull meanes the Lord had all the Tythes within the Mannor for the said Pension paying to the parson and the Law intends it was for Divine service Et pro bono Ecclesiae the reason of whch intendment is the continuall usage time out of remembrance And upon such speciall matter a man might have Tythes as appurtenant to a Mannor for he prescribes in a Que estate in the Mannor and therefore cannot have them in grosse but t was adjudged Winscombs Case in a prohibition that a man cannot prescribe generally in him and all those c. to have Tythes appurtenant to a Mannor without speciall matter shewne because Tythes are due Jure divino The Arch-Bishop of Canterburies Case 38. Of the Queene fo 46. A Religious house in M. was given to E. 6. by the Statute of 1. E. 6. a Rectory which was impropriated to it was granted to the Arch-Bishop of Canturbury who leased to the Defendant and Land within M. parcell of the said Colledge came to the Lord Cobham and from him to the Plaintiffe who shewes that the Master of the Colledge was seised of the said Land and Rectorie Simul semel as well at the making of 31. H 8. as of 1. E. 6. Resolved that this Colledge came to the King by 1. E. 6. onely for when 31. H. 8. speakes of dissolution renouncing relinquishing forfeiture giving up which are inferior meanes by which c. or by any other meanes cannot be intended of an act of Parliament which is the highest manner of conveyance that can be and the makers would have placed this in the beginning if they had intended it Bishops are not included within 13 of the Queene which begins with Colledges Deanes and Chapters c. Also 1. E. 6. Enacts that all Colledges by this Parliament shall be in actuall possession of the King which last act being of as high nature as the first it cannot come to the King by 31. H. 8. and it was never pleaded that of Colledges which came by 1. E. 6. the King was seised Vigore of the Statute of 31. H. 8. Resolved that neither the Act nor the meaning of 31. H. 8. extends to other Colledges then to those which came to the King by 31. H. 8. for it should be absurd that a Branch of the act of 31. H. 8. should extend to a future Act of which the makers of 31. without a spirit of prophecy could not have foreknowledge and the Act of 31. concludes in as large manner as the late Abbots c. which late as it hath been agreed extends onely to those to be dissolved by 31. Resolved admitting that the Colledge had come to the King by 31. H. 8. that such a generall allegation of unity of possession of the Rectory and the Land with it was not sufficient for no unity shall be sufficient but lawfull and perpetuall unity of possession time out of minde as 't was adjudged in Knightly and Spencers case and that the generall allegation of the plaintiffe that the Master of the Colledge at the making of 1. E. 6. held the Land discharged is not good without shewing how either by prescription composition or other lawfull meanes as 't is adjudged in the Bishop of Winchesters case otherwise if the Land had come by 31. then by force of the said branch of discharge such generall allegation had been good Resolved that no Ecclesiasticall house except religious was within the Statute of 31. H. 8. Resolved that though 1. E. 6. saith that the King shall have the lands of Colledges in as ample and large manner as the said Priests c. enjoyed the same yet these generall words doe not discharge the land of any tythes for they doe not issue out of the land for a Prior had tythes against his own Feoffment of the Mannor and 't is no good cause of prohibition to alledge unity of possession in a Colledge which came to the King by 1. E. 6. as 't is upon 31. H. 8. in Abbyes c. For the Statute of 1. E. 6. hath no such clause of discharge of payment of tythes as 31. hath and therefore such perpetuall unity will not serve upon 1. E. 6. So 't was likewise resolved betwixt Greene and Buffkin Sir Hugh Cholmleys case 39. of the Queene fo 50. TEnant in Taile the remainder in taile the remainder bargaines and sells the Land and all his estate to J. S. to have for the life of Tenant in taile the remainder to the Queene c. upon condition that the
In cur wardo fol. 68. IN a devise of Lands by writing an averment out of the will shall not be received for a Will concerning Lands c. ought to be in Writing and not by any averrment out of the same otherwise it were great inconvenience that not any might know by the written words of the will what construction to make if it might be controuled by collaterall averrment out of the will Cases of Vsury Burtons Case 34. Eliz. banco regis fo 69. A. Lends to T. W. 100. l. 7. July 21. Eliz. in consideration of which T. W. grants to him a rent charge of 20. l. per annum the first payment to be at the Nativity 1580. upon condition of payment of the said 100. l. this is out of the Statute of Usury for he had a 100. l. for a yeare and a quarter without consideration and if he pay it within this Time A. shall not have the rent so that he was not assured of any consideration But if it were agreed betweene them that the 100. l. shall not be payd this is within the meaning of the Statute A Demurrer is a confession of all such matters in fact onely as are well and sufficiently pleaded Claytons Case 37. Eliz. Com' Banco fol. 70. THirty pound was lent for halfe a yeare to have for it thirty-three pound if the sonne of the obligee be then in life if not 27. pound this is within the intent of the Statute of Usury Vsura dicitur ab usu aere quasi usuaera 1. usus aeris Et usura est commodum certum quod propter usum rei mutuatae recipitur Glanvile lib. 7. cap. 16. Hoes Case 34. Eliz. fo 70. A Duty certaine upon a condition subsequent may be released before the day of the performance of the condition but a dutie uncertaine at the first and upon condition precedent to be made certaine after this in the meane time is but onely a meere possibilitie and therefore cannot be released And it was adjudged 4. El. in communi Banco that by a release of all actions suites and quarrels a covenant before breach of it is not released thereby But by a release of covenants the covenantor is discharged before the breach vide Litt ' 170. A release in the time of vacation to the Patron dischargeth an annuitie wherewith the Parson is charged in respect of the parsonage and a warranty may be released before suite because he may have a warrantia chartae St. Johns case 34. El. Banco Regis fol. 71. DAggs Pistolls c. are within the Statute of 33. H. 8. ca ' 6. the same Statute doth prohibite Crosse-bowes and under the same name stone-bowes are forbidden for if a small alteration or addition should defeat the penaltie of the act the Statute should be of small effect And it was resolved that the Sheriffe or any of his Officers for the better execution of Justice may carry handguns or other weapons invasive or defensive and not restreined by the generall prohibition of the said act vide 3o. H. 7. fo 1. Williams case 37. Eliz. Banco Regis fol. 72. ONe man shall not have an action of the case for common Nusans made in the high way because it is a common Nusans and it is not reason that any particular person should have an action for then every particular person might have an action for the same and so thereby one might be punished an hundred times for one cause But if any particular person have more particular damage then another hee may have a particular action upon the case for this particular injury for common Nusances which are equall to all the Kings people the common Law hath appointed other Courts viz. Leets c. A prescription to doe divine service in a Chappell for the Lord and his tenants is remediable onely in the Court Christian but for the Lord and his private family an action of the case lyeth for the Lord onely Case of Orphanes of London 35. El. Banco Regis fol. 73. IF any Orphane of London sue for goods c. in the Court Christian or of Requests a prohibition lyeth because their government by their custome belongs to the Major of L. So if a Will be proved in the Court Christian the probate whereof belongeth to the Lord of a Mannor Wymarkes case 36. Eliz. Banco Regis fol. 74. PLaintiffe in an Ejectione firmae counts of a Lease of R. S. the defendant pleads in barre an Indenture of bargaine and sale and sheweth it by the said R. S. to E. W. who was seised untill disseised by R. S. who leased to the plaintiffe and he as servant to E. W. enters Three Termes after the plaintiffe replies that the bargaine and sale was upon condition which was broken and the bargainor entred and leased to him and did not shew forth the deed of bargaine and sale Judgement given for the defendant 1. Resol When a Deed is shewed to the Court it remaineth in the Court all the Terme in Judgement of Law because the Terme is but one day in Law and this as well to strangers as parties to take advantage thereof without shewing but at the end of the Terme it shall be delivered to the party if it be not denied for then it shall remaine in Court to be damned if it be found not his Deed. 2. The Course in the Kings Bench is that Imparlances to plead in barre are entred but not Imparlances to Reply or rejoyne so that the Replication here although it be three Termes after the Barre yet it shall be intended here the same Terme and so he shall not need to shew the Deed. Cliftons case 35. Eliz. fol. 75. IF a woman tenant for life take an husband which committeth wast and after the wife dyeth the husband is dispunishable of and for such wast for the Writ is Quare cum de communi consilio c. provisum sit quod non liceat alicui vastum venditionem seu destructionem facere de terris c. sibi demissis ad terminum vitae vel annorum c. And in this case the husband hath not any estate for life in this Land but the wife hath estate for life and the husband but onely an estate in her right and so he is not within the Act. Pilkintons case 43. Eliz. in banco le Roy. fo 76. IT was resolved Per tot ' Cur ' that when a distresse is taken for damage fesant that the party may tender amends untill the beasts be impounded but after they be in the pound they are in the custody of the Law and then the tender cometh too late It was also resolved that tender of amends to the Bayliffe or servant that taketh them will not serve for he cannot deliver the distresse once taken no more then change the avoury of his Master or demand rent upon a condition of reentry The Earle of Pembrookes case 36. El. Banco Regis fol. 76. WHere the defendant sheweth a
accordingly and if no request be made and the Feoffee or Grantee that ought to performe the condition dye the condition is broken Yet this generall rule admits an exception for here in case of an advowson he hath not time during his life though no request be made but upon contingency to wit if no avoydance fallin the meane time for if the Grantee stay till the avoydance fall Ipso facto the condition is broken for B. cannot have all the presentations during his life which was the effect of the grant and the Advowson is come into another plight then t was But where the day is certaine for the performance and the party dye before the condition is discharged because the performance is become impossible by the Act of God and therefore when a day certaine is appointed t is good that the Heire of the feoffee be named in the condition Another diversity was also agreed when t is to be performed to a stranger he ought to request the stranger in convenient time for to limit a time when it shall be done but if it be to the Feoffor himselfe he ought not to performe it before request Another diversity was taken by some when the feoffee dyes and when the feoffor dyes for in the one case the condition is broken in the other not Binghams Case 43. of the Queene fo 91. R. Bingham the Grandfather held the Mannor of B. M. of Sir Jo Horseley as of his Mannor of H. and levyed a fine to the use of him and his Wife for life and after of R. the Father his Sonne and Heire in taile and after to the right Heires of the Grand father R. the Father dyed the remainder in taile discended to R. his Sonne within age Sir I. H. suffered a recovery of the Mannor of H. to the use of himselfe and his Wife in taile and after to Sir R. H. his Sonne and Heire in taile after to the Heires of Sir I. Sir I. and his Wife dyed without issue Sir R. enters R. B. the Grandfather dyes by which the reversion in Fee discended to R. B. the Wife of Robert dyes R. within age enters and Leases c. Resolved that the use limitted to the right Heires of the Grandfather upon the fine is a reversion in the Grandfather expectant upon the taile not a Remainder so t was resolved in Fenwick and Mitfords Case and so t was resolved in the Earle of Bedfords Case Resolved that Sir R. H. shall not have the ward of the Land for the reversion in Fee is holden of him and not the Taile though both discend from the same Ancestor for the taile cannot be drowned and if Tenant in taile grant over the reversion he shall hold the Taile of his Grantee and though the Seigniory of the taile be suspended yet the Donee hath two distinct estates and the reversion is as a Mesne betwixt the Donee and the Lord and the Lord is not defeated for the Law gives no wardship in such cases and if it were admitted that by the unity of Tenure betwixt the Donee and reversion t was determined yet nothing shall be holden of the Lord but the reversion and in some cases the Donee in taile shall hold of no body as a gift in taile the remainder to the King Resolved if the Grandfather were Tenant for life the remainder to the Father in taile the remainder to the Father in fee the Father dyes his Heire within age and Sir I. H. grants the Seigniory to Sir R. H. and the Grandfather dyes that Sir R. H. shall not have the ward of the Heire because R. the Father did not hold of him nor any of his Ancestors the day of his death nor the Taile was not within the see and Seignory of Sir Ra. or any of his Ancestors at the death of R. the Father and the Writ saith Praecipe c. Eo quod terram illam de eo tenuit die quo obijt And though that during the life of Tenant for life the Heire of the remainder shall not be in ward because Tenant for life is Tenant to the Lord yet the death of Tenant for life is not the cause of ward but the removing of an impediment as in Paget and Caries Case Tenant for life commits wast and after Tenant for life in remainder dyes he in remainder in fee shall have wast T was said when two accidents are required to the consummation of a thing and the one happens in the time of one and the other in the time of another neither the one nor the other shall have benefit by it as the Tenant ceases for a yeare the Lord grants his seigniory and then the Tenant ceases for another yeare neither shall have a Cessavit which was agreed So Lacies Case Trin. 25. of the Queene who gave a mortall wound upon the sea of which the party dyed upon the Land yet he was discharged because the stroake was upon the Sea the death upon the Land so that neither the Admirall nor a Jury can inquire of it and t was said when diverse accidents are required to the consummation of a thing the Law more respects the Originall cause then any other A man presents to a Church in time of Warre notwithstanding the party be instituted and inducted Tempore pacis all is voyd So the Law more respects the death of him in the remainder the Originall cause of wardship then the death of Tenant for life which is but Causa sine qua non and rather a removing of an impediment then a cause so t was resolved that neyther the one nor the other shall have the ward Resolved that Sir Ra. should not have the third part of the Land by 32. 34. H. 8. for though R. the Grandfather had limitted the use to the Father which is within the Statute yet when R. the Father dyes in the life of the Grandfather the Statute extends no further for the Heire of the Father who is in by discent shall be in ward by the common Law not by the Statute and if the Statute should extend to the Son and Heire of him in remainder by the same reason it should extend to all the Heires of him in remainder In infinitum THE THIRD BOOK The Marques of Winchesters Case 25. of the Queene fo 1. LIonell Norris and Anne Mills were seised of the Mannor of M. and to the heires of the body of L. a common Recovery is had against L. without naming Anne H. Norris being in remainder in taile is executed for Treason and 't is enacted that he shall forfeit Mannors c. uses possessions offices rights conditions and all other hereditaments L. dyed without issue Anne dyed the Queene brought error against the Marques of Winchester heire of the survivor of the recoverors the error was that the originall Writt of entry wants the defendant pleaded that 14. of the Queene shee gave and restored to the Lord Norris Sonne and heire of H. Norris
the wrong but that the said Bill shall remaine alwayes of record to their infamy and here no murther or piracy can be punished upon any Bill exhibited in English but he ought to have beene indicted and therefore he hath not onely mistaken the Court but also the nature of exhibiting the Bill hath not appearance of any ordinary course of justice but no action lyes upon an appeale of murder returnable in the Common Bench for though the Writ is not returned before competent Judges who may doe justice yet 't is in nature of a lawfull Suite namely by Writ of appeale wherefore judgement was given for the Plaintiffe And in a Writ of error in the Chequer Chamber brought by Wood 't was resolved that Sir R. B. might have had a good action but here because the action was not upon the Bill exhibited at Westminster but because he said in the County of S. that his Bill was true In auditu quamplurimorum without expressing the said matters in particular so that it was not any Slaunder judgement was reversed Stanhopp and Bliths Case 27. of the Queene fo 15. MAster Stanhopp who was a surveyor of the Dutchy and had divers Offices and was a justice of peace Hath but one Mannor and that he hath gotten by swearing and forswearing Resolved that the action doth not lye for they are too generall and words which charge any one in an action in which damages shall be recovered ought to have convenient certainty and he doth not charge the Plaintiffe with swearing c. and he may recover a Mannor by swearing c. yet not procuring or assenting to it Resolved if one charge another that he hath forsworne himselfe no action lyes First because he may be forsworne in usuall communication Quia benignior sensus in verbis generalibus seu dubijs est praeferenda Secondly it is an usuall word of passion and choller as also to call another a Villaine a Rogue or Varlet these and such like will not mayntaine Action Boni judicis interest lites derimere But if one say to another that he is perjured or that he hath forsworne himselfe in such a Court c. For these words an Action will lye Hext Justice of Peace against Yeomans 27. of the Queene fo 15. FOr my ground in H. Hext seekes my life and if I could finde one J. H. I doe not doubt but within two dayes to arrest Hext for suspicion of felony Adjudged that no action lyes for the first words 1. Because he may seeke his life lawfully upon just cause and his land may be holden of him 2. 'T is too generall and the Law inflicts no punishment for seeking of his life but adjudged that the action lyes for the last words for for suspicion of felony he shall be imprisoned and his life in question Birchleys case 27. 28. of the Queene fo 16. THe Defendant said to B. Clerke of the Kings Bench and sworne to deale duely without corruption you are well knowne to be a corrupt man and to deale corruptly Adjudged that the action lyes 1. Because the words Ex causa dicendi imply that he hath dealt corruptly in his profession Et sermo relatus ad personam intelligi debet de conditione personae 1. This touches the Plaintiffe in his oath 2. The words Scandalize him in the duty of his profession by which he gets his living Skinner of London said that Manwood was a corrupt Judge adjudged actionable Resolved in this case that if the precedent parlance had beene that B. was a usurer or executor of another and would not performe the will and upon this the Defendant had spoken the words following no action would lye Weaver and Caridens case 37. of the Queene fo 16. AAjudged that no action lyes for saying that the Plaintiffe was detected for perjury in the Starre-chamber for an honest man may be detected but not convicted Stuckley and Bulheads case 44. and 45. of the Queene fo 16. ADjudged that an action lyes for saying Master St. he was a Justice of peace covereth and hideth felonies and is not worthy to be a Justice of peace for this is against his oath and his office and a good cause to put him out of Commission and for that he may be indicted and fined Snagg and Gees case 39. of the Queene fo 16. THou hast killed my wife and art a traytor Adjudged that the action will not lye for the wife was in life as appeared in the Declaration and so the words vaine and no scandall otherwise if shee had beene dead Eaton and Allens case 40. of the Queene fo 16. HE is a brabler and a quarreller for he gave his Champion counsell to make a Deed of gift of his goods to kill me and then to fly out of the Country but God preserved me Resolved that the action will not lye for the purpose without act is not punishable and though he may be punished for such conspiracy in the Star-chamber yet this is by the absolute power of the Court not by ordinary course of Law Observe well this case and the cause and reason of this Judgement Anne Davies case 35. of the Queene fo 16. THe Defendant said to B. a Suitor to the Plaintiffe and with whom there was neare an agreement of marriage I know Davies daughter well she did dwell in Cheapside and a Grocer did get her with childe and the Plaintiffe declared that by reason thereof the said B. refused to take her to wife Resolved the action lyes for a woman is punishable for a Bastard by 18. of the Queene ca. 3. And though that fornication c. is not examinable by our Law because done in secret and uncomely openly to be examined yet the having a Bastard is apparant and examinable by the said Act. Resolved if the Plaintiffe had been charged with nude incontinency onely the action lyes for the ground of the action is temporall viz. the defeating of her advancement in marriage By Popham an action lyes for saying that a woman Inholder had a great infectious disease by which shee loses her guests Banister and Banisters case 25. of the Queene Resolved that an action lyes for saying to the sonne and heire that he was a Bastard for this tends to his disinherison but resolved if the Defendant pretend that the Plaintiffe is a Bastard and he himselfe right heire no action lyes and this the Defendant may shew by way of barre Jeames case 41. 42. of the Queene fo 17. THe Defendant said to B. Hang him innuendo praedict J he is full of the pox innuendo the French pox c. Resolved two things are requisite to have an action for slander 1. That the person scandalized be certaine 2. That the scandall be apparent by the words themselves And therefore if a man says that one of the servants of B. is a notorious felon or traytor an action lyes not if he have more servants and innuendo cannot make it certain
his warrant to bring the party before himselfe and it is good and sufficient in Law for it is most like that he hath the best knowledge of the matter and therefore most fit to doe Justice in that matter upon refusall to finde surety the Constable may commit him without a new warrant Gooches case 32. El. in banco le roy fol. 60. WRay chiefe Justice said that if A. make a fraudulent conveyance of his Lands to deceive a purchasor against the Statute of 27. El. and continueth in possession and is reputed as owner B entereth in communication with A. for the purchase and by accident B. hath notice of this fraudulent conveyance Notwithstanding he concludes with A. and takes his assurance In this case B. shall avoide the said fraudulent conveyance by the said Act notwithstanding the notice for the Act by expresse words hath made the fraudulent conveyance voyde as to the purchasor And for as much as that is within the expresse provision of the Statute it ought to be taken and expounded in suppression of fraud Resolved that fraud may be given in Evidence because the estate is voyde by the Act of 13. Eliz. and fraud is hatched in secret in arbore cava opaca And according to this opinion it was resolved Per tot ' Cur ' in communi banco Pasche 3o. Jac. where one Bullock had made a fraudulent estate of his Lands within the Statute of 27. El. to A. B. and C. and after offred to sell the same to one Standen and before the assurance by Bullock Standen had notice thereof and notwithstanding proceeded and tooke the assurance from Bullock Standen avoyded the former assurance of fraud by the said act for the notice of the purchasor cannot make that good which an Act of Parliament hath made voyde as to him And it is true Quod non decipitur qui scit se decipi But in this case the purchasor is not deceived for the fraudulent conveyance whereof he had notice is made voyde as to him by the Statute and therefore he knew it could not hurt him Sparries case 33. Eliz. in Scaccar fol. 61. IN action of Trover and convertion the defendant pleads that there is another action depending in the Kings Bench for the same Trover and good for in actions which comprehend no certeinty as assize or trespas this is no plea before a Count because thereby it is made certeine and then it is a good plea and not before but in this action and debt and detinue it is a good plea at the first because they are certeine that an action is depending in an inferiour Court is no plea. Cases of By-Lawes Chamberlaine de Londons case 32. El. in Banco le roy fol. 66. THe Inhabitants of a village without any custome may make Ordinances or By-Lawes for reparation of the Church or of high-wayes or any such thing which is for the publicke weale generally and in this case the consent of the greater part shall binde all without any custome vide 44. E. 3.19 But if it be for their owne private profit for that Towne as for their well ordering of their common of pasture or such like then without custome they cannot make by-Lawes And if it be a custome yet the greater part shall not binde all if it be not warranted by the custome for as custome hath created them so they ought to be warranted by the custome 8. E. 2. tit ass As pontage murage Tolle and such like as appeareth in 13. H. 4.14 In which cases the summes for reparations of the Bridge walls c. ought to be so reasonable that the Subject may have more benefit thereby then charge Clerks case 38. Eliz in communi banco fol. 64. KIng Edward 6. did incorporate the Towne of St. Albones and granted them to make Lawes and Ordinances c. The Tearme was kept there and the Major c. by assent of the plaintiffe assessed every Inhabitant for the charges in erecting of the Courts there and if any did refuse to pay c. to be imprisoned c. the plaintiffe being Burges refused to pay c. and the Major justified c and it was adjudged no plea c. For this Ordinance is against Magna Charta ca. 29. Nullus liber homo imprisonetur which act hath been confirmed divers times viz. thirty times and the assent of the plaintiffe cannot alter the Law in this case But it was resolved that the Major c. might inflict reasonable penaltie but not imprisonment which penaltie ought to be Levied by Distresse for which offence an action of Debt lyeth and the plaintiffe in this case had judgement Jeffrays case Michaelis 31 32. en Bank le Roy. fol. 66. WIlliam Jeffray Gent. brought a prohibition against Abraham Kenshley and Thomas Forster Churchwardens of Haylesham in Com' Sussex for that they sued him in Court Christian before Doctor Drury for certaine money imposed upon him without his assent for repaire of the Church That the Church-wardens with the assent of the greatest part of the Parishioners juxta quantitatem qualitatem possessionum reddit ' infra dict' parochiam existent Determined and agreed to make a taxation for repaire of the said Church and that notice of such assembly was given in the Church at which day the Church-wardens and greater part of the Parish which were there assembled made a taxation viz. every occupier of Land for every acre 4. d. c. Geffray dwelt in another Parish and declared that the Parishioners of every Parish ought to repaire their Church and not the Church of another Parish Cooke of councell with the defendant demurred in Law and after many arguments a Writ of consultation was granted And it was resolved that the Court Christian hath conusans de reparatione corporis sive navis Ecclesiae Britton who writ in 5. E. 1. And in the Statute of Circumspecte agatis but in Rebus manifestis errat qui authoritates legum allegat quia perspicuè vera non sunt probanda It was also resolved that although Geffray did dwell in another Parish yet for that he had Lands in the said Parish in his proper possession he is in the Law Parochianus de Haylesham But it was resolved that where there was a Farmor of the same Lands the Lessor that receiveth the rent shall not be charged but the Inhabitant is the Parishioner and the receipte of the rent doth not make the Lessor a Parishioner Diverse of the civill Lawyers certified the Court that the Church Wardens and a greater part of the Parishioners upon a generall warning assembled may make a Taxation by their Law and the same shall not charge the Land but the Person in respect of the Land for equality and indifferency and this was the first leading case that was adjudg'd reported in Our Bookes touching these matters and many causes after were adjudged thus and now it is generally received for Law The Lord Cheneys Case 33. Eliz.
it was resolved that when one hath a power of revocation yet if he suffer any thing to be lawfully executed as touching that he cannot make any revocation as if a man make a Letter of Attourney to another to doe any thing before Execution he may revoke it but after Execution lawfully done it cannot be revoked if one to whom another is indebted be Outlawed and he that oweth the money payeth it to the King and the Outlary is after reversed yet the Creditor shall recover his Debt against the party if the goods of an Outlawed person be sold by the Sheriffe upon a cap. utlagat ' after the Outlary is reversed by Error the Defendant shall have restitution of his goods for the Sheriffe or Escheator is not compellable to sell the goods but he may keepe them to the use of the King agreeing to the Booke 20. Eliz. Dyer 363. but if a Sheriffe by vertue of a Fieri facias sell the goods and after the judgement be reversed by error the Defendant shall not have restitution of the goods but the value of them for which they were sould And the reason is the Sheriffe is compellable to Levy the Debt of the goods of the Defendant and therefore great reason that the Sale should stand Semaynes case 2. Jac. fo 91. Banco regis THat the House of every man is to him as his Castle and Fortresse as well for his defence against injuries and violence as for his repose that if a man kill another in his defence or permisfortune without any intent yet it is felony and he should loose his goods and Chattells for the great regard that the Law hath to the life of a man But if Theeves come to the House of a man to rob or murther and the owner or his servant kill any of the Theeves in defence of him or his House this is not felony neyther shall he loose any thing any man may assemble his Neighbours or friends to Guard his House against violence but he may not assemble them to goe with him to the Market or abroad to safe-gaurd him against violence and the reason of all this is Domus sua cuique est tutissimum refugium It is resolved that when any House is recovered by any reall Action or by Ejectione firmae the Sheriffe may breake the House and deliver seisin or possession It was also resolved that in all cases where the King is party the Sheriffe may breake the House if the Doores be shut and make Execution of his Writ but before he breake the House he ought to signifie the cause of his comming and make request to have the Doores opened West 1. ca. 17. which Act is but an affirmance of the common Law but if the Officer breake the House when he might have the Doores opened he is a Trespassor 41 Ass pl. 35. For fellony or suspition of fellony the Officer may breake open the Doore in all Cases where the Door is open the Sheriffe may enter and make Execution of his writ either for body or goods at the suite of a subject or the Lord may distraine for his rent But it was resolved that the Sheriffe at the Suite of a common person upon request made to open the Doors and denyall thereof ought not to breake open the Doore or the House to Execute any processe at the Suite of any Subject or to execute a Fieri facias being a Writ of Execution but he is a Trespassor yet if he doe Execution in the House it is good in the Law being done it was also resolved that the house of a man is not a Castle or defence for any other person but for the owner his Family and goods and not to protect another that flyeth into the same or the goods of another for then the Sheriffe upon request and denyall may breake the House and doe Execution And this is proved by the Statute of West 1. ca. 17. whereby is declared that the Sheriffe may breake the House or the Castle to make replevin when the goods of another that he hath destrayned are conveyed away to prevent the owner but in this case the Sheriffe must demand the goods first Barwicks Case 39. Eliz. in Exchequer fo 93. THe Queene 28. Die Julij Anno. 26. demised the Mannor of Sutton to Humfrey Barwicktenend sibi a die confectionis It was resolved that the same 28. day of July is excluded and the demise began the 29. of July It was also resolved that an estate of freehold cannot commence In futuro but ought to take effect presently in possession Reversion or Remainder A Lease for yeares may commence in future but not a Lease for life and the reason is for that a Lease for yeares may be made without livery and seisin but an estate of freehold may not be made without livery eyther in deed or in Law and therefore when a man maketh a Lease for Life to commence at a day to come he cannot make a present Livery to a future estate and therefore in this case nothing passeth and it is all one whither it commenceth at a day to come or yeares to come for the distance of the times doth not make alteration in this Case but in the case of two joynt Lessees the Livery made to one is good in the name of both for they have an interest in the Land before their entry and livery to one in the name of both maketh an actuall possession in both which is sufficient to support the remainder to a third person in Fee Vide Claytons ' Case in the Fifth Booke Lycense to occupy Land for one yeare is a Lease for one yeare 5. H. 7. 1. in consideration of a former demise to be surrendered which was false and void is a void consideration as to the Queene Goodalls case 40. El. Banco Regis fol. 95. COnditions for payment of money touching inheritance ought to be truly performed and not covenous if they concerne a third person The Law doth not finde an assignee in Law where there is an assignee in fact Expressum facit cessare tacitum affirmed in the Exchequer chamber upon Error there brought Countesse of Northumberlands case 40. El. Communi Banco fol. 97. FItton and the Countesse of Northumberland his wife Sir Thomas Cecill Knight and Dorothie his wife William Cornewalleys and Lucy his wife and the Lady Davers Daughters and heires of the Lord Latimer brought a Quare impedit against Hall who pleaded a release of William Cornewalleys pendente breve and it was adjudged that this should but goe in barre onely against William Cornewalleys and his wife and the Writt should stand for others and all shall vest in the others because intire and in the realty presentment of the lessor and lessee is not double for the lessors onely traversable Buries case 40. El. in communi banco fol. 98. BEtween Whebster and Burie in Ejectione firmae a speciall verdict was given upon divorce between Burie and his wife
pending the Writ Resolv That by the common Law by admission and institution the Usurpor gaines the inheritance of the advowson without regard of the nonage of the Patron because he is in by judiciall act and the Bishop shall be supposed not to doe wrong to the Patron and the incumbent shall not be disturbed to excercise his function but the King shall have a Quare impedit at the common Law Collation doth not put him who hath right to present out of possession but if one have right to Collate it doth an infant by the Act of W. 2. c. 5. shall have a Quare impedit if a man usurp upon an infant who had a Mannor to which c. by discent who at full age infeoffeth B. the Church voideth c. by the usurpation the infant was out of possession and his right passed not and seems the Infant is without remedy If a Clerke commeth in by course of Law this gaineth not the inheritance against the right Patron who was not party to the writ The King shall not recover damages by this Statute for he is not within the first branch Si tempus semestre transierit nor within the second Branch for that depends upon the first yet he shall count to damages An incumbent shall not be moved if he be not named in the writ and if he be not admitted c. pending the writ and lapse shall not incurre if the Bishop be named in the Writ otherwise if he be not If he who is presented pending the Writ be in by rightfull Patron or not yet he who recovereth in a Quare impedit shall have a generall Writ to the Bishop which he must execute of necessity and after that the parties may try their titles as the Law shall determine Countesse of Rutlands Case in the Starre-Chamber 3. Jacobi fo 52. THat the person of a Countesse or a Baronesse may not be arrested for Debt or trespasse for although in respect of their Sex they may not sit in the Parliament yet they are Peers of the Realme and shall be tryed by their Peers Stat. 20. H. 6. Peers of the Realme may not be sworne in any inquest a Countesse in Marrying with a Husband doth loose her Name of a Countesse If a Baronesse c. by Marriage marry againe under the Nobility shee looseth her dignity but if she be Noble by Birth or descent yet whomsoever she Marryeth she remaineth Noble for Birth-right is Character intelebilis and that which is gained by Marriage may also be lost by Marriage A Sheriffe ought not to dispute the Authority of Courts but he ought to Execute the Writs to him directed for thereunto be they Sworne Serjeant at Mace upon a cap. ad satisfaciendum came to the the said Countesse in Cheapside being in her Coach and touched her body with the Mace and said I arrest you Madame at the Suite of S. and those were all the words that were us'd therupon compell'd the Coach man to carry her unto the Counter-gate in Woodstreete and the Sheriffe tooke her into his house In this Case it was resolved that the Sheriffe Bayliffe c. upon the Arrest ought to shew at whose suite out of what Court for what cause it is and when the processe is returnable and that this generall Arrest of the Countesse cannot be said that it was by force of the said Writ of Execution and that this Arrest was of the Serjeants owne head without warrant and against Law and that the said Countesse was falsly imprisoned but she remained in the Sheriffes custody 7. or 8. dayes untill shee paid the Debt but because the Arrest was by a fained Action entered in the Counter the Serjeants were sentenced The Lord Chandos case 4. Jacobi fol. 55. THe King grants to B. in taile and in consideration of the surrender of the Letters Patents by force whereof the King is seised in fee granteth to him and his wife and to the heires of B. the reversion passeth for the recitall that the King was seised in fee was but the Collection of the King and no part of the consideration or suggestion of the party And when the King grants land in posseâ—… if he had but a reversion this shall passe for he is not deceived because lesse passes then he intended Bredimans case 4. Jacobi Com. Banco fol. 56. A Man deviseth a rent for life out of a Mannor and he deviseth the Mannor for yeares the termor enters and pays the rent after the Terme the devisee brings an assize against the Terretenant Resol Payment by lessee for yeares of the rent giveth no seisin to have an assize 1. In respect of the imbecillity of his estate 2. He cannot give seisin because he had not seisin and therefore a Pracipe lyeth not against him because he cannot render seisin but he may take seisin to the use of him in the freehold A disseisor may give seisin of a rent secke because he hath a freehold and it is lawfull 3. A rent secke is caecus siccus therefore it behoveth the first payment which giveth life unto it shall be made by a Tenant of the freehold and in this case being created by devise an Annuity lyeth not thereupon otherwise if it be by grant and Tenant of the freehold ought to attorne to a grant of such a rent over therefore he shall give seisin But seisin by a Bailiffe is good if seisin were had before within sixty yeares and seisin given by Tenant at will is good but it ought to be pleaded as payment by the lessor himselfe If the King hath rent out of a ville to be paid by all the Inhabitants seisin alledged in generall without naming any is good Gatewards case 4. Jac. in Com. Banco fol. 59. TO claime common ratione Commorantiae residen in villa de B. is not good for no man may have interest â—…ommon in respect of a Messuage wherein he hath no interest For custome should alwayes extend to that which hath certenty and continuance and without question tenant in fee simple ought to prescribe in his owne name and tenant for life or yeares by elegit at will c. in the name of him that hath the Fee and he that hath no interest cannot have any common and none that hath any interest although it be but at will and ought to have common but by good pleading he may enjoy the same No improvement might be made in any wasts if this custome viz. in respect of habitation and Comorance should be allowed for tenants for life or yeares at will by elegit by Statute c. of the houses of the Lord should have common in the wasts of the Lord if this prescription were allowed which were inconvenient A Custome that every Inhabitant in B. shall have a way over such grounds either to the Church or Markett c. is a good custome for that is onely easement and no profit and a way or passage may well sequi
the prochein avoidance be within the tearme the grant is good for yeares cannot determine but the effluxion of time and the Law implyes this limitation if the Church doe come voyd during the tearme For expressio eorum quae tacite insunt nihil operatur Likewise if a lessee for yeares grant a rent charge and after surrender yet for the benefit of the grantee the tearme hath continuance although in rei veritate it is determined and the grantor himselfe shall not derogate from his owne grant to make it voyd at his pleasure The six Carpenters Case 8. Jacobi fol. 146. IT was resolved when entry authority or license is given to any by the Law and he abuse the same in this case hee shall be a trespassor ab initio But where entry authority or license is given by the party and he abuse the same there he shall be punished for this abuse but he shall not be sayd to be a trespassor ab initio and the diversity is this because the Law doth judge by the act subsequent quo animo or to what intent hee enters acta exteriora judicant interiora secreta But when the partie giveth authority c. to doe a thing he cannot for any subsequent cause punish the same 1. The Law doth give authority of entry into a common Inn Taverne c. 2. To a Lord to enter and distreine 3. To an owner of the soyle to enter and distreine dammage feasant 4. To him in reversion to view if waste be committed 5. To a commoner to enter into his Land to view his Cattell c. But if hee that enters into an Inn c. doe trespasse or take any thing away or if the Lord that distreines for rent or owner for dammage feasant labour or kill the distresse or he that enters to view wast bruse the house or stay there all night or if a commoner sell Tymber in these cases and such like the Law judgeth that hee entred for the same purpose and therefore the act that doth demonstrate this is to be a trespasse and he shall be a trespassor ab initio It was resolved that the non-seasons or not doing of a thing is not any trepasse where the Law giveth license or authority to enter viz. to deny to pay for Wine in a Taverne is not a trespasse but the Taverner may have an action of debt 12 E. 4.8 If a Taylor overvalue the making of a Garment and the necessaries thereunto he shall not have an action of debt for his owne values unlesse it be specially agreed upon before but he may detaine the Garment untill he be payd or satisfied and if the party sue for the same the Jury shall set downe the value and the Taylor shall have no more but be barred for the rest Likewise an Ostler may deteine an Horse c. Tender of sufficient amends for dammage fesant befor the distresse taken is good and the taking of a distresse afterwards is wrong tender after the taking of a distresse and before the impounding maketh the detaining wrong but not the taking but tender after the impounding commeth too late for then the cause is put to the tryall of the Law Edward Althams Case 8. Jacobi fol. 159. In dower and pleaded N. Seised in fee of Lands in W. and G. deviseth the Lands in G. to his younger Son for life it was agreed betweene the eldest Son and the Widow of T. N. that shee should release her dower in W. shee releaseth unto him omnes actiones demand c. necnon omnem dotem titulum dotis c. de aliquibus terris in W both the Sons dye shee brings dowre of the Lands in G. and judgement given for the demandant 1. Resol A release of all actions to him in the reversion barreth not dowre because shee had no cause of action against him but against the tenant of the free hold but a release of all her right to him in the reversion extinguisheth dowre for a release of right beareth actions but a release of actions barreth not a right if there be other meane to come to it otherwise not as if the disseisee release all actions to the heire of the disseisor the right is extinct otherwise it is if the release be to the disseisor and a discent after or if the release be to the lessee for life of the heire a release of all actions reall and personall is no barr in a Writ of errour but a release of a Writ of errour is a release of actions is no barr to have execution if he be not put to a Scire facias a release of a thing due before the time of payment thereof is good Quaerela is more then an action for by that the cause of action is released by release of suites executions are barred for none shall have execution without suite for it so it is of all duties but a release de quaerelis infectis in that case barreth not dowre by release of titles dowre is barred and by release of demands which is the most ample release of all 2. The collaterall agreement is not of any force or effect but generall words ought to be qualified by apt words contained in the same Deed as in this case mihi contingent per mortem dicti T. viri mei de aliquibus terris in W. c. and so extends not to any Lands in G. but restraineth the generall words to the Lands in W. onely Quando carta continet generalem clausulam posteaque descendit ad verba specialia quae clausuâ—ae generali sunt consentaneae interpretanda est carta secundum verba specialia As if a man grants a rent in manerio de D. precipiendum in 100. Acres parcel thereof with clause of distresse in the 100 Acres the rent shall issue out of the 100. Acres onely Arthur Blackamores Case 8. Jacobi fol. 156. THe Defendant is named Gent. in the originall Writ but by negligence of the Cursitor hee is outlawed by the name of Knight this is amendable at the common Law but in case of the King default of the Court was amendable at the Common Law as erroneous entrance of the continuance essoyne c. and any part of the Record the same Terme and therefore diverse Statutes of amendments were made one of the last whereof was 8. H. 6. cap. 12. which was more large and extends to processe and to seven other things to Records Pleas Parolls Warrants of Attorney to Writs originall and judiciall Pannels and Returnes that is where it was the misprision of the Clerke and onely the default of the Clerke by negligence is amendable but not by his nescience as if an action be brought against executors in the debet and detinet or if it be false Latine but if a word which is not Latine be written for a Latine word this is amendable as Imaginavit for Imaginatus est In a Writ of trespasse against diverse if it abate for default against one it
shall abate against all but if it be for matter in fact onely as for misnaming one Defendant it shall abate onely against him omission or addition which doth not alter the forme is amendable as if Dei gratia be omitted Voluntary or negligent keeping of Records by the Clerke is amendable by other parts of the Record or by exemplification Count or plea in barr c. which wanteth substance shall not be amended in another Terme but default in the colour because this is the default of the Clerke shall be a Record shall be amended in another Terme by the paper Booke and a thing apparent to be the fault of the Clerke shall be amended in another Terme as rien luydoit de hoc c. predictus defend pro quaerent Nisi prius shall be amended by this Statute if power be given to the Justices to proceed otherwise not as if issue joyned in the Record be mistaken in the Nisi prius it shall not be amended but misprision of dammages shall be because this is not materiall to the issue and it is the default of the Clerke Warrant of attorney and returnes are amendable by this Statute but if there be none at all it is out of the Statute and because this Statute leaveth many cases without remedy the Statutes of 32. H. 8. cap. 30. and 18. Eliz. cap. 14. were made Ten misprisions as yet not remedied 1. Variance materiall betweene the originall and the Count. 2. Want of substance in the originall or Count. 3. Insufficient tryalls 4. If a Coroner returnes the Jury where the Sheriffe ought 5. Lack of name of the Sheriffe to the returne 6. Where no returne is indorced upon the Venire facias 7. When one who is not returned giveth a Verdict 8. Pleas of the Crowne 9. If it appeare to the Court that he who hath a Verdict had no cause of action 10. Errour in Law Cases in the Court of Wardes Myghts Case 7. Jacobi fol. 163. 1. REsolved if J. M. purchase Lands to him and an Infant in fee it cannot be averred that this was to take away the wardship because he never was sole Tenant to the King 2. No feoffement that I. M. can make of his moity can be aver'd to be by collusion c. because without feoffement no wardship shall be and also the Statute speakes of sole seisin 3. A feoffement to the wife or younger Child cannot be averred to be by covin c. upon construction of the Statute of 32. 34. H. 8. where collusion cannot be averred by the Statute of Marlebridge it cannot be now to seize all the Land but it may be for the third part which belongs to the King If a third part be left to the King no averrement of covin may be for the other two parts the Father makes a feoffement to diverse uses the remainder to his second Sonne and dyeth his Eldest Sonne dyes the second Sonne shall not be in ward by averment of covin Digbies Case 7. Jacobi fo 165. TEnant of the King conveys his Lands to the use of himselfe for life the remainder to his Sonne and Heire in taile and after is attainted of Treason the King shall have no wardship of any part of the Land by 32. 34. H. 8. because there is no Heire and livery must be sued in the name of the Heire but the King shall have wardship in such a case before 26. H. 8. because there was an Heire The Earle of Cumberlands Case 7. Jacobi fol. 166. E. 2. granted the Castle and Mannor of S. in taile to R. C. H. 6. granted the reversion to T. C. if the taile be good if not he grants it in possession this is good one way or other and so are many Patents from time to time Paris Stoughters Case 7. Jacobi fol. 168. BY Mandamus it was found that P. S. dyed seised 40. El. and held of the Queen in common socage 7. Jacobi a Melius inquirendum was awarded whither he held of the King by common socage or in chivalry and it is found that he held of the Queene by chivalry This Writ of Melius c. is repugnant and giveth no authority to find this office because a Tenure cannot be of the King in the time of Queene Elizabeth and therefore a new Writ shall be awarded but if the first Melius be good no other shall issue 1. For avoiding Infinitnesse 2. A Diem clausit c. shall not issue upon a Diem c. Nor Mandamus upon a Mandamus so a Melius c. shall not issue upon a Melius 3. If an Office be found against a Subject he shall have a traverse and if upon that it be found against him he hath no remedie So the King shall have but one office and a Melius and no more although that a Tenure be found of two Subjects or one hath an Ouster le maine the King shall not reseise without a Scire facias Toursons Case 8. Jacobi fol. 170. IF Tenant of the King commit Fellony Ao 1. Jaco and after is attainted Ao 3. for the same and after in Ao 4. all is found by office Now this office shall have relation to the time of the Fellony to avoid all meane alienations and incumbrencies but for the meane profits it shall have relation to the time of the Attendor for their the Kings Title appeared of Record and the like Law is of an Ideot But in case of a ward within age the King shall have the meane profits from the death of the Auncestor because he hath it by reason of his Seigniory and he looseth the rent and services in the meane time the difference is when the King seiseth jure protectionis regae or Nomine destrictionis and when Ratione Prioris recti seu tituli Sir Gerrard Fleetewoods Case 8. Jacobi fol. 171. SIr William Fleetewood receiver of the Revennues of the Court of Wards in Anno. 35. Eliz. was possessed of a Messuage and certaine Lands in Harrow in Com Mid for a tearme of yeares in Anno. 36. Eliz. he became Receiver generall and was bound in 20. Obligations of 200. l. a peece to make true account c. And after upon severall accounts he became indebted in great Summes of money to the Queene and being so indebted in consideration of 1100. l. did bargaine and sell the said Lease to James Pemberton which by meane conveyance came to Sir Gertard Fleetwood Question Whither this Lease c. was extendable and lyable to the Kings Debt c. and it was resolved that the said sale of the tearme was good against the King because the tearme was but a Chattell and the sale of Chattells after judgement Bona fide is good but not after Execution awarded And Cooke Chiefe Justice said that a Receiver or other accomptant which is indebted shall not be in worse case then a Fellon or a Traytor that may after Fellony or Treason and before conviction sell Bona fide for his