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
reversion shall be to both of them but if it be by Deed indented the rent shall go to one only according to the literal reservation Vide Litt. 80. 346. But if the Lease had been made by several Limitations as Habendum one Manor for 20 s. and the other Manor for 10 s. then the Lease and the Reversion had been several but here the rent shall not rule the reversion but the reversion the rent and the rent shall be of the same nature as the reversion Tenant for life makes a Feoffment in Fee upon condition and re-enters for the condition broken now by that re-entry the Freehold is reduced to the Lessee for life and the Fee unto the Lessor but the Forfeiture remains Two Ioyntenants one of them makes a Feoffment in Fee of his Moiety upon condition and for the breach of the condition re-enters the Ioynt Estate is revived And he conceived that the Grantee of part of the Estate or part of the Land should not take advantage of the condition and he said that the Bargainor is an Assignee within the Statute If Tenant in Tail makes a Lease for years and afterwards bargains and sells the reversion the Vendee hath a Fee simple determinable and may enter for the condition broken If a reversion be granted to two and to the Heirs of one of them they are Assignees within the Statute and if he who hath but an estate for life surviveth he also is an Assignee for the entire reversion passeth out of the Grantor and that is my Rule Iudgment was given against the Re-entry LXXXIII Pasc 30 Eliz. In the Kings Bench. Surrender LEssee for 21 years took a Lease of the same Lands for 40 years to begin immediately after the death of J. S. It was holden in this case that the same was not any present Surrender of the first term but if J. S. dye within the term then it is a Surrender for it may be that J. S. shall survive the first term Pasc 30 Eliz. In the Kings Bench. LXXXIV Anderson and Heywoods Case Copyholder A Copyholder of an Inheritance of a Manor which is in the hands of the King is ousted of his Copyhold It was holden that he hath not gained any Estate so as he may make a lease for years upon which the Lessee may maintain Ejectione firmae but he hath but a possession against all Strangers And it was holden in this case that if a Copyholder dyeth 1 Leon. 100. Rumny and Eves his heir within age he is not bound to come to any Court during his Nonage to pray admittance or to tender his Fine also if the death of his Ancestor be not presented nor proclamations made he is not at any mischief although he be at full age Pasc 30 Eliz. In the Kings Bench. LXXXV Cook and Songates Case IN Assumpsit Assumpsit the Plaintiff declared whereas Lis controversia had been moved between the Plaintiff Lord of the Manor c. and the Defendant claiming certain Lands parcel of the said Manor to hold the same by Copy c. And both the said parties submitted themselves to the Iudgment and Arbitrement of Mr. Godfrey a man learned in the Law. concerning the said Land and the title of the Defendant to the same The Defendant in consideration that the Plaintiff promised to the Defendant that if the said Mr. Godfrey should adjudge the said Copy to be good and sufficient for the title of the Defendant that then he would suffer the said Defendant to enjoy the said Land accordingly without molestation the Defendant reciprocally promised to the Plaintiff that if the said Mr. Godfrey should adjudge the said Copy not to be sufficient to maintain the title of the Defendant that then he would deliver and surrender the possession of the Land to the Plaintiff without any Suit. And shewed further that the said Mr. Godfrey did award the said Copy utterly to be insufficient c. Yet the Defendant continued the possession of the said Land It was moved that the same was not a good and sufficient consideration to ground an Assumpsit But Gawdy Iustice said it was a good and sufficient consideration because it was to avoid Controversies and Suits And afterwards Iudgment was given for the Plaintiff Trin. 26 Eliz. In the Kings Bench LXXXVI Taylors Case IN Assumpsit the Case was Assumpsit That the Defendant promised to carry certain Apples for the Plaintiff by Boat from Greenwich in the County of Kent to London and the Apples being in the Boat the Boat in which they were by a great and violent Tempest was sunk in the River of Thames so as the said Apples perished c. It was holden to be no Plea in discharge of the Assumpsit by which the Plaintiff had subjected himself to all adventures LXXXVII Trin. 26 Eliz. In the Kings Bench. Devise A. Seized of Lands in Fee and having Issue two Sons Richard and Gilbert by his Will willed That if his Son Richard dye before Issue so that the Land descend to my Son Gilbert then I will that my Overseers shall have the Government of my Lands and of my Son Gilbert Richard took a wife and dyed she being young with Child with a Daughter the Devisor died the Daughter was born It was adjudged in this Case that by this Devise the Daughter was excluded from the Inheritance and that Gilbert should have the Land. Trin. 32 Eliz. In the Kings Bench. LXXXVIII Lukes Case LUke Esq of Tedcaster was Indicted upon the Statute of 13 Eliz. cap 8. for being a Broker in a Vsurious Contract for which he encurred a Praemunire Who pleaded Not Guilty upon which they were at Issue and at the day of the Return of the Distringas the Iurors appeared and the same day that the Iury was to be taken Popham Attorney General sent for the Distringas and for certain causes for the Queen would not proceed Note that the Attorney was informed that the Iury was partial It was moved by Cook that the Attorney could not stay the Proceedings the Writ being returned and the Iury appearing he could not stay the Tryal for no President is thereof Popham The Entry shall be in this case Vicecomes non misit breve Cook That is false and the Sheriff is sworn to make a true return but by consent of the Parties such a thing may be done for Consensus tollit Errorem Quaere 33 Eliz. In the Exchequer LXXXIX The Queen and Painters Case Accompt of the King against a Stranger SIr William Pelham was Surveyor of the Ordnance and delivered the money of the King to Painter Clerk of the Ordnance It was holden in this case That for the said money the Queen might have Accompt against Painter although he wanted a privity which cannot be so in case of a common person for if any Receiver make one his Deputy I shall not have an Accompt against him Popham Attorney General If one of
lie Mich. 27 Eliz. In the Kings Bench. XCVII Baspoles Case THe Father seized of Lands is bound in an Obligation 3 Leon. 118. 2 Leon. 10 1. Stiles 148 Devise to his Son and Heir and devised his Land to his Wife until his Son shall come to the age of 21 years the remainder to the Son in Fee and no other Land descends to the Son from his Father It was moved that the Heir in this case at his Election might wave the Devise and take by descent or è contra Vide 9 E. 4. 18. per Needham It was the Opinion of Gawdy and Fenner Iustices that the Son should be adjudged in by descent Clench held the contrary Mich. 27 Eliz. In the Kings Bench. XCVIII Onions Case IN an Action upon the Statute of 5 Eliz. for hunting in his Park the Statute gives treble damages It was the Opinion of the Iustices that notwithstanding that the Statute gives treble damages Costs that the Plaintiff should have Costs also XCIX Mich. 27 Eliz. In the Kings Bench. IN Debt the Plaintiff had Iudgment to recover and a Scire Facias issued against the Bail before any Capias issued against the Principal Bail. and the Bail was taken and now they came and shewed this matter to the Court and prayed to be discharged Wray Iustice said They shall be put to their writ of Error for being but Error in Process we may reverse our own Iudgment C. Mich. 14 Eliz In the Common Pleas. A Man seized of a Pasture within which are two great Groves and Wood known by the name of a Wood leased the same by Indenture for years and also in the same Pasture were certain Hedgrows and Trees there growing sparsim by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses and further that it shall and may be lawful to the Lessee to cut down and carry away the same at all times during the term Harper said the Hedg-rows did not pass by these words for they are not known by the name of Woods 14 H. 8. 2. Manwood held the contrary Mounson contrary to Manwood for the words of the Grant may be supplied by other in it viz. Woods Dyer held that these Hedgrows should pass for the Grant is general It was further moved if by these words the Lessee might again cut them c. or but once Harper Manwood and Mounson three of the Iustices held That he might cut them but once But Dyer held the contrary said so it should be if the words had been growing upon the Premisses and this word growing although it sounds in the present tense yet it shall be taken also in the future tense if not that the word tunc be laid for that is a word of restraint The case which was argued in the Chancery 27 H. 8. where I was present was this The Prior of St. Johns let a Commandry Provided that if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void And it was doubted if that Proviso did extend to the Successor for this word being in the present tense and yet it was holden by Fitzherbert that it should be taken in the future tense and so to extend to the Successor but otherwise if the words had been nunc being 15 Eliz. In the Common Pleas. CI. Conies Case A Man seized of Lands in Fee devised Devises that his wife should take the profits of his Lands until Mary his daughter and Heir should come to the age of sixteen years and if the said Mary died that J.S. should be his Heir Manwood said Tail. That the daughter after she had attained the age of sixteen years should have the Lands in Tail for Devises shall be construed according to the interest of the Devisor if they have any certainty or reason but no intent shall be taken against reason and certainty It is certain the daughter shall not have Fee-simple for that should have descended to her without any Devise and these words if she dye cannot be intended a condition for it is certain that she shall dye but if the words had been If she dye before the age of sixteen years J. S. should be his Heir that had been a condition and if the words had been That after the death of Mary J. S. should be his Heir So as the Estate Tail remains in the daughter Mounson and Harper contrary And that she shall have but for life Mounson said That if Mary had been a Stranger to the Devisor she had taken nothing Devisee who shall first take And this case was put by Barham Serjeant A man devised 100 l. to his youngest daughter and 100 l. to his middle daughter and 100 l. to his eldest daughter and that all these sums should be levied of the Profits of his Lands It was holden by the better Opinion that the youngest daughter should be first paid and then the middle and then the eldest daughter c. and that he said was Conies Case CII 6 Eliz. In the Common Pleas. A Man made a Lease for life and afterwards made a Lease to another for years to begin after the death of the Tenant for life the Lessee for years died intestate the Ordinary committed Letters of Administration to A. the Tenant for life and A. joyned in the Purchase of the Fee-simple of the Land demised It was holden by the Iustices in this Case that the Fee was executed for one Moiety for the remainder for years Estate executed was not any impediment to the execution of it Manwood conceived that the Term was not extinct for the same is not properly a term Extinguishment but only an Interest of a Term which cannot be surrendred Mounson He hath the Term in auter droit as Administrator and therefore it cannot be extinct Dyer If an Executor hath a Term and purchaseth the Fee-simple the Term is determined A woman Termor for years takes Husband who purchaseth the Fee the Term is extinct by Manwood for the Husband hath done an act which destroys the Term scil the Purchase But if a woman being a Termor marrieth with him in the Remainder the Term continueth for here it is not the act of the Husband but the act of Law. It was the Opinion of Dyer Tenants in Common that in this case the Tenant for Life and the Administrators should be Tenants in Common of the Fee. CIII Mich. 17 Eliz. In the Common Pleas. THe husband is seized in right of his wife of certain customary lands in Fee and he and his wife by licence of the Lord make a Lease for years by Indenture rendring rent have Issue two daughters and the husband dyeth the wife takes another husband and they have Issue a son and a daughter the husband and wife dye the son is admitted to the Reversion and dyeth without Issue and by Manwood
that Reversion shall descend to all the daughters notwithstanding the half blood for the Estate for years which is made by Indenture by license of the Lord is a demise and a Lease according to the order of the Common Law and according to the nature of the demise the Possession shall be adjudged which possession cannot be said possession of the Copyholder for his possession is customary and the other is meer contrary therefore the possession of the one shall not be the possession of the other therefore there shall be no Possessio Fratris in this case Possesso Fratris But if one had been the Guardian by custom or the Lease had been made by Surrender there the Sister of the half blood should not inherit And Mead said the Case of the Guardian had been adjudged Mounson agreed And it was said that if a Copyhold doth descend to the Son he is not a Copyholder before admittance but he may take the profits and punish a Trespass before admittance CIV Pasc 19 Eliz. In the Common Pleas. A Parson let his Rectory for three years and covenanted that the Lessee shall have and enjoy it during the said term without expulsion or any thing done or to be done by the Lessor and is also bound in an Obligation to the Lessee to perform the said Covenant Forfeiture Quaere Afterwards for not reading of the Articles he was deprived ipso facto by the Statute of 13 Eliz. The Patron presented another who being inducted ousted the Lessee wherefore an Action was brought upon the Obligation It was the Opinion of all the Iustices That this matter is not any cause of Action for the Lessee was not ousted by any Act done by the Lessor but rather for Non feasans and so out of the compass of the Covenant aforesaid as if a man be bound that he shall not do any waste permissive waste is not within the danger of it Pasc 26 Eliz. In the Common Pleas. CV King and Cottons Case IN Ejectione firmae the Case was Lessee for years the Remainder for life the Remainder in Tail to Lessee for years Lessee for years made a Feoffment in Fee with warranty and dyed he in the Remainder for life dyed the Issue in Tail entred and made a Lease to the Plaintiff It was clearly resolved by the Court in this Case Entre Congeable That the entry of the Issue in Tail was lawful notwithstanding that the disseisin was done to another Estate than that which was to be bound by the warranty scil to the Estate for life Vide 50 E. 3. 12 13 46 E. 3. 6. Fitz. Garr 28. Pasc 26 Eliz. In the Common Pleas. CVI. Scot and Scots Case BArtholomew Scot brought a Writ of Accompt against Thomas Scot Accompt Thomas Scot sum ' fuit ad respondend Barth Scot quod reddat ei rationabilem computum suum de tempore quo fuit receptor denariorum c. And declared quod cum the said Thomas Scot fuit receptor denariorum c. recepisset so much by the hands of such a one c. Cumque idem Thomas habuisset recepiâ—â—et diversa bona and shewed what ad merchandizand c. Exception was taken to the Declaration because the Writ and Declaration is general against the Defendant as Receiver whereas for such goods as the Defendant had received ad merchandizand he ought to have been charged as Bayliff Quod Curia concessit Vide Book Entries 19. 46 E. 3. 9. and afterwards the Defendant traversed severally both the Charges whereupon several Issues were joyned and both found for the Plaintiff And as to the monies with the Receipt of which he was charged as Receiver the Plaintiff had Iudgment and as to the others Abatement of Writ which he received ad Merchandizandum the Writ abated And it was said by the Court That the Writ should have abated in the whole unless the several Issues had helped the matter because the Plaintiff might have had an Action for part in other manner Vide 9 H. 7. 4. by Brian 17 Eliz. In the Star-Chamber CVII Morgan and Coxes Case MOrgan exhibited a Bill of Perjury in the Star-Chamber against one Cox setting forth that whereas he was bound to his good behaviour by Recognizance acknowledged in the Kings bench and he in discharge of the said Recognizance had obtained a Writ De Fama gestu to enquire of his Conversation and therefore at the Sessions in the County of Devon where the said Morgan was dwelling the grand Iury charged with the said Matter the said Cox gave Evidence to the said grand Iury in maintenance and continuance of the said Recognizance and upon the Evidence given by Cox the said Bill was conceived It was moved by the Counsel of the Defendant That that Bill upon the matter did not lye for that the Evidence in the Bill for the Perjury was given for the Queen in maintenance of the Recognizance and that to the grand Iury which was charged for the Queen But as to that it was said by the Lord Chancellor and both the Chief Iustices that the Writ De fama gestu Brief de Fama gestu is an especial Writ at the Suit of the Party and not of the Queen and the Court cannot deny it to him who asketh it and the grand Iury as to that matter shall be accounted a special Iury c. Mich. 16 Eliz In the Common Pleas. CVIII Jackson and Darcys Case Tail barred by a Fine 3 Leon. 57. IN a Writ of Partition betwixt Jackson and Darcy the Case was Tenant in Tail the Remainder to the King levied a Fine had Issue and dyed it was adjudged that the Issue was barred and yet the Remainder to the Queen was not discontinued for by the Fine an Estate in Fee-simple determinable upon the Estate in Tail passed to the Conusee Trin. 17 Eliz. In the Common Pleas. CIX Stroads Case Tenures IN a Replevin the Case was Lands holden of a Subject came to the possession of the King by the Statute of 1 E. 6. of Chauntries The King granted the Lands over unto another it was holden in this Case that the Patentee should hold of the King according to his Patent and not of the ancient Lord but the Patentee should pay the rent by which the said Land was before holden as a Rent-seck distrainable of Common right to the Lord and his Heirs of whom the Land was before holden CX Mich. 19 Eliz. In the Common Pleas. A. Seized of Lands in Fee devised them to his Wife for life and after her decease Estate she to give the same to whom she will He had Issue two daughters and died Devises Leon. 121â— the wife granted the Reversion to a Stranger and committed waste and the two daughters brought an Action of waste In this Case it was holden that by that Devise the wife had but an Estate for life but she had also an authority
on the other side That the Estate of the Alien is so weak that a confirmation cannot enure upon it for an Alien cannot take but to the use of the King and cannot be infeoffed to anothers use and if he be such use is void For there is not a sufficient seisin in an Alien to carry an use And it hath been adjudged on Forset Case Where an Alien and the said Forset were Ioynt-Purchasers and the Alien dyed that Forset should not have the whole by Survivour but that upon Office found the Queen should have the moiety Vide 11 Eliz. Dyer 283. Mich. 30 Eliz. In the Common Pleas. CLXXVI Jermine and Arscots Case THe Case between Jermine and Arscot was this A seized of Lands in Fee had Issue six Sons and one Daughter and devised the Manor of c. parcel of his said Lands to J. S. for ninety years if the said J. S. and G. his Wife or any of them should so long live the remainder to P. his eldest Son and the Heirs males of his Body the remainder to his other Sons in tail the remainder to his Daughter Provided That if the said P. his Son or any of the Sons of the Devisor or any of the heirs males of their bodies should endeavour by any Act or Thing to alien bargain or discontinue c. that then after such attempt or endeavour and before such Bargain and Sale c. were executed that the estate of such Person attempting should cease as if he were naturally dead and that then the premises should remain and come to such person to whom the same ought to come remain or be by the intent and meaning of his Will and died P. levied a Fine of the Manor he in the next remainder entred and claimed the Land by force of the Devise This Case was this Term argued by Walmesly Serjeant that an Estate tail cannot cease for it is an Estate of Inheritance and here is not any limitation for the Estate tail by the meaning of the Devisor shall remain revivable upon the death of the Offender but a Limitation determines the Estate utterly which is not here but here it appeareth as well by the meaning of the Devisor as by the words of the Devise that the Estate tail upon such act should be suspended and it cannot be resembled to the Case cited on the other side 22 E. 3. A Rent granted to one in Fee and that it shall cease during the Nonage of every Heir the Rent is but suspended between the Parties and Privies to the Gift as in the Case of Littleton of Re-entry and Retainer quousque but that a Stranger should re-enter and retain quousque that cannot be And in the Case of Scholastica reported by Plowden the Estate tail by such Offence is determined by the limitation But in our Case by the meaning of the Devisor only suspended so our Case is not like to that Case Shuttleworth to the contrary The purpose of the Devisor appeareth to be the continuance of the Land in the name and Family of the Caries and as to the difference of ceasing and suspending of an Estate tail the same is not to the purpose for the Tenant in tail himself may suspend his Estate tail therefore à fortiori the Donor upon the Creation of the Estate tail As by Littleton Tenant in Tail grants totum statum suum the Estate tail is thereby suspended and by Anderson if in such a Case after such a grant Tenant in tail levy a Fine in our Case If Tenant in tail offend and the party to whom the next interest is limited enters and after the Offender levies a Fine to a Stranger there although his Estate was determined by the offence yet the Estate tail is bound by the Fine Ad quod caeteri Justiciarii murmurabant Tenant in tail hath Issue two Sons the eldest in the life of his Father levieth a Fine and after the Father dieth the Estate tail is bound contrary if the Father had survived his eldest Son And afterwards in the end of this Term Iudgment was given against the Plaintiff for by the Will here is a good limitation and an estate to cease upon an act and upon another contingent to be revived is good enough Vide 30 E. 3. 7. A Lease for life rendring rent and if the rent he behind that the Lessor shall return quousque agreement be made so as a Freehold may cease and rise again according as the same is limited And all this was agreed by Rhodes Periam and Windham and afterwards Walmsley for the Plaintiff took an Exception to the Bar for that the Defendant pleaded Quod Petrus Cary tempore levationis finis praedict non habet exitum and doth not say that tempore quo ipse Henricus clamabat reversionem praedict the said Peter had not Issue for he said if Peter had Issue when Henry claimed the Reversion nothing had vested on him by the said claim But all the Court besides Anderson said that needed not be but if the matter had been such the same should come on the part of the Plaintiff Also they said That the Estate was vested in Henry without claim and although after the Offence committed and before claim Peter have Issue yet Henry should retain the Land during the life of the Offender against such Issue born after the Fine levied for by the Fine levied the Reversion vested in Henry without any claim by force of the said limitation CLXXVII Mich. 30 Eliz. In the Common Pleas. Alien suffers a common Recovery 9 Co. 141. LAnd was given to an Alien in tail the Remainder over to another in Fee the Alien suffered a common Recovery and died without Issue All this matter was found by Office. It was moved That this Office should have return so as upon the matter the Alien was not Tenant of the Land at the time of the Recovery suffered But the whole Court held the contrary and that the Recovery was good and should bind him in the Remainder Mich. 30 Eliz. In the Common Pleas. CLXXVIII Seixtbark and Percies Case EJectione firmae of Lands in Knolton and Woodland the Parties were at Issue and the Venire facias was of Knolton only and it was found for the Plaintiff It was shewed in stay of Iudgment that the Venire facias was not well awarded for it ought to have been De vicineto de Knolton Woodland which was granted by the Court And that that defect was not relieved by any Statute for it is a Mis-trial and for that cause Iudgment was stayed and a Venire facias de novo granted 30 Eliz. In the Common Pleas. CLXXIX The Provost of Queens Colledge in Oxfords Case THe Provost Fellows and Scholars of Queens Colledge in Oxford are Guardians of the Hospital and Meason de Dieu in Southampton and they make a Lease of Lands parcel of the Possession of the said Hospital to one Hagel for term of years by the name of
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
he is not to have Damages because the Waste was not to his disinheresin and the Land he shall not recover against the Defendant for the Term is not determined and such was the Opinion of the Court. As to the matter in â—aw Shuttleworth said That the Action of Waste ought to be brought against the Lessee himself and not against the Assignee for when he grants over his Term excepting the Trees it is a good Exception for when the Land upon which the Trees grow is leased to another the Trees pass by the Lease as well as the Land and the property of them is in the Lessee during the Term by which when he grants his Land he may well except them as the first Lessor might have done and if the Lessee for years cutteth down the Trees the Lessor cannot take them for that he hath other sufficient remedy scil an Action of Waste Fenner and Walmsley contrary And they conceived that the Lessee had but a special Property in the Trees scil for Fire-bote Plough bote House-bote c. But if he demiseth the Land or granteth his Interest in it he cannot except the Trees nor his special Property in them no more than he who hath Common appendant may grant the Land excepting the Common And in such case the general Property in the Trees remains in the Lessor as parcel of his Inheritance And this appeareth by many cases 27 H. 8. 13. Lessee for life and he in the remainder joyn in a lease for life the Lessee commits Waste the Tenant for life and he in the remainder joyn in an Action of Waste the Tenant for life shall recover the place wasted and he in the reversion all the damages Vide 2 H. 7. 10 H. 7. cited before That the Lessor may licence the Lessee to cut the Trees which proves that the Property is in him And Vide 40 Ass 22. the Lessor shall have the Windfalls And as to that which hath been said That by the Exception of the Trees the Soil it self is also excepted that is true as to the Trees for nourishment and not otherwise for if the Lessor cutteth down the Trees or roots them up he shall not after meddle with the Land where c. but the Soil shall be entirely to the Lessee The Lessor during the Term may grant the Trees so cannot the Lessee therefore the greater and better Property in the Trees is in the Lessor and not in the Lessee and the Trees proprie loquendo are not parcel of the thing demised If this Exception of the Trees or Woods should hold place Inconvenience would follow for as it is holden in 15 H. 7. 11. If the Termor of Wood commits Waste in one corner of the Wood he should not lose all the Wood but that place only But if in the said Wood there are divers Plats of Land in divers places of the Wood if the Termor commits Waste in that Wood he shall lose all the said Plats although he hath not done waste in them for they are parcel of the Wood. Vide Temps E. 1. Fitz. Waste 127. and Vide ibidem Waste 112. 8 E. 2. Waste done in parcel of an House the whole House shall be recovered Vide also 30 E. 3. Fitz. Amendment 67. and 4 E. 3. Waste 10. Now if that be Law and the Exception be good how shall the place wasted be recovered here and against whom It seemed to the Lord Anderson That the Exception was void and that the Action was brought against the Assignee and he said it was a knavish and foolish Demise and if it should be effectual in Law some Mischiefs would follow which he would not remember Windham was of the same Opinion and that the Lessee could not assign his Estate with such Exception for he hath but a special Interest in the Trees scil for Fire-bote Plough-bote c. which should go with the Land. Periam conceived That as to such special Property that none could have it but he who hath the Land and therefore the Exception is void but as to the Fruit-trees such an Exception might be good and although that the Trees are not expresly demised yet quodam modo and after a sort they may be said demised as annexed to the Land and if waste be brought against him who made the Exception scil the Lessee he cannot say they were not let to him and therefore he doubted of the Exception And Rhodes doubted also of the Exception and Anderson said that he was clear of opinion that the Lessor should have the Windfalls and afterwards the Case was adjorned to be further argued c. Temps Roign Eliz. CCLXX. Audleys Case Uses THe Lord Audley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerset and afterwards by Indenture reciting the said Feoffment and the date of it and also that it was to the intent that his Feoffees should perform his Will as followeth in effect viz My Will is that my said Feoffees shall stand seized to the use that the said Hoddy shall receive of the said Lands â—00 l which he had lent to the said Lord Audley and also to stand seized to pay all his Debts upon Bills signed with his hand and after â—he Debts paid that the Feoffees shall make an Estate of the said Lands to him the said Lord Audley and Joan his wife and to the heirs of their Bodies c. with divers Remainders over The said Lord Audley had Issue by the said Joan and also having Issue by a former wife a daughter the Feoffees never made any Estate to the said Lord and his wife and by the opinion of divers Iustices and Sages of the Law upon this matter no use was changed for it is not a last Will but an Intent and although that the Feoffees shall be seized to the use of the Feoffor and his Heirs because no consideration was wherefore they should be seized to their own uses yet the same could not make a new use to the said Lord and his wife in tail without conveying an Estate c. for the wife is a stranger to the Land and the same cannot be a Will or Testament for the Estate mentioned in the said writing ought to be made to the said Lord and his wife who could not take by his own Will and this matter was depending in the Chancery And the advise of the Iustices being there required they delivered their Opinions That by that writing no use was changed nor any use vested in the said Lord and his wife and a Decree was made accordingly until proof was made that such an Estate was made c. Trin. 29 Eliz. In the Common Pleas. CCLXXI. Walgrave and Somersets Case IN Trespass by Walgrave against Somerset the Case was That tenant at will cut down Trees and the Lessor brought Trespass vi armis And the Court was clear of opinion that the Action was well maintainable modo forma and Iudgment
of the first disturbance for that presentment did not pass to him being a thing in Action without mention thereof in his Grant. And if the Patentee brings a Quare Impedit of a second avoidance he shall make his presentment by the presentment of the King not making mention of the Vsurpation Yet if a Bishop present for Lops in the case of a common person he ought to make mention of it for that is a title to the Patron CCCXL Trin. 28 Eliz. In the Kings Bench adjudged NOte In the Case of one Manning it was adjudged That where an Infant Executor sold the Goods of his Testator for a lesser price than they were worth and afterwards brought an Action of Detinue against the Vendee upon that Detinue in retardatione executionis Testamenti that the said Sale was good and should bind the Executor notwithstanding his Nonage 28 Eliz. In the Chancery CCCXLI The Lord Awdleys Case THe Lord Awdley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerset and afterwards by Indenture reciting the said Feoffment and the date of it and also that it was to the intent that his Feoffees should perform his Will as followeth in effect viz. My Will is That my said Feoffees shall stand seized to the use that the said Hoddy shall receive of the profits of the Lands 100 l. which he had sent to the said Lord Awdley and also stand seized to pay all his debts upon Bills signed with his hand and after the debts paid that the said Feoffees shall make Estate of the said Lands unto him the said Lord Awdley and Jone his Wife and to the Heirs of their two Bodies with divers Remainders over The said Lord had Issue by the said Jone and also had Issue by a former Wife a daughter the Feoffees never made any Estate to the said Lord and his Wife And by the Opinion of divers Iustices and Sages of the Laws that upon that matter no use was changed for it is not any last Will but an Intent And although that the Feoffees shall be seized to the use of the Feoffor and his Heirs because that no consideration was by which they should be seized to their own uses yet the same cannot make any Vse unto the said Lord and his Wife in tail without containing an Estate for the Wife is a Stranger to the Land And also it cannot be a Will for the Estate mentioned in the said writing ought to have been made to the said Lord and his Wife who cannot take the same by his Will. This matter depended in the Chancery And the advice of the Iustices being there required they delivered their Opinions That by the said Writing no Vse was changed nor any Estate vested in the said Lord and his Wife And a Decree was there made accordingly until proof be made that such an Estate was made CCCXLII Mich. 26 Eliz. In the Kings Bench. THe Case was in the Kings Bench in Debt It was found by Special Verdict That the Testator being possessed of divers Goods in London where he dyed and also at the time of his death the Queen being indebted unto him in the Sum of 4 l. 10 s. she then residing at Whitehall the Archbishop as Metropolitan granted licence of Administration to the Queen and the Bishop of London afterwards granted licence of Administration to J.S. The Court sent to the Civilians to appear in Court and to deliver their Opinions in this case And thereupon Lloyd Doctor of Law appeared and argued to this effect viz. That in ancient times in such cases the several Ordinaries committed several Administrations for the Goods in their Diocess respecive In which case the mischief was very great for the Creditor was driven to bring several Actions of the Administrators of the several Ordinaries Vide H. 7. 13 R. 2. Administrators 21. But afterwards upon a Decree upon a Composition in such cases the Metropolitan committed the Administration He further argued That debts cannot be said Bona Notabilia for they cannot be said within or without any County or Diocess and are things transitory and therefore called aes alienum And he said That the Administration granted by the Archbishop was void for as Archbishop he had not to intermeddle within the Diocess of another but as Legatus Papae And in the time of Hen. 2. Becket Archbishop of Canterbury was stiled Legatus Natus but now that power Legantine is determined and therefore the authority to commit Licences of Administration in another Diocess but in case of Bona Notabilia is determined And he said That by the Civil Law Jones Rep. 225. if a man deviseth all his Goods in such a County by that debts do not pass and yet by especial words a man may devise his debts Awbrey Doctor argued to the contrary and he confessed that in ancient times every Ordinary in such cases committed licences of Administration But he denied that the Prerogative which is now practised in such cases by the Metropolitan was given upon any Composition but that it began by Prescription If a man in his Iourney dyed in another Diocess notwithstanding that he had out with him but his necessary and ordinary Apparel in such case the Metropolitan committed the Administration and he said That as he conceived debts are Bona Notabilia secundum fictionem Legis they are local and he said to make Bona Notabilia it is sufficient if the Intestate have 3 l. in one Diocess and 2 l. in another Diocess But he said That posito that Bona Notabilia are not in the case yet the Administration granted by the Metropolitan is not void until it be revoked For although that the Metropolitan on the right of his Bishoprick hath not to intermeddle in another Diocess yet in this case because the Archbishop of Canterbury is a Patriarch For in Christendom there are four great Patriarchs and eight lesser Patriarchs whereof the Archbishop of Canterbury is one and by reason thereof he hath general Iurisdiction through all England Ireland c. But now by the Statute his Authority is restrained For he cannot cite any other out of other Diocess by any Process But notwithstanding he may do many great Acts by himself or his Chancellor in every Diocess and he argued very much upon the Prerogative of the Archbishop of Canterbury The Iustices did not then deliver any Opinion in this case Quaere If Letters of Administration of the Goods of a common person be committed to the Queen if good The case was adjourned Vide Cook 5 part Ucre and Jeffreys Case and Cook 8 part in Sir John Needhams Case for the Resolution of this Case CCCXLIII Pasc 17 Eliz. In the Common Pleas. A Man made a Lease for life and afterwards made a Lease to another for years The Ordinary committed Licences of Administration to A. the Tenant for life and A. joyned in the purchase of the Fee-simple of the Land demised It was
holden by the Iustices that the Fee was executed for a Moiety for the Remainder for years was not any impediment unto the Execution thereof Manwood conceived that the Term was not extinct for it is not properly a term but as an interest of a term which cannot be surrendred Mounson He hath the term in auter Droit viz. as Administrator therefore it cannot be extinct Dyer If an Executor hath a term and purchaseth the Fee-simple the term is determined A Woman Tenant for years taketh a Husband who purchaseth the Fee the term there is extinct Manwood True there for the Husband doth an act which destroyeth the term viz the purchase But if a Woman being a termor marrieth with him in the reversion the term continueth for here is no act of the husband but the act of the Law. Dyer was of Opinion That the Tenant for life and the Administrator should be Tenants in Common of the Fee. The Case was adjourned CCCXLIV Mich. 20 Eliz. In the Common Pleas. THe Case was The Husband is seized in the right of his Wife of certain customary Lands in Fee. He and his Wife by Licence of the Lord makes a Lease for years by Indenture rendring rent have Issue two Daughters the Husband dyeth the Wife takes another Husband and they have Issue a Son and a Daughter the Husband and Wife dye the Son is admitted to the reversion and dyes without Issue And by Manwood the said reversion shall descend to all the Daughters notwithstanding the half blood for the Estate for years which is by Indenture by licence of the Lord is a Demise or Lease according to the order of the Common Law and according to the nature of the Demise the possession shall be adjudged which possession cannot be said the possession of the Copyholder for his possession is customary and the other is contrary and therefore the possession of the one shall not be the possession of the other and so no Possessio Fratris in this case But if there had been a Guardian by the custom or this Lease had been made by surrender then the Sister of the half blood should not inherit And by Mead the case of the Guardian hath been so adjudged Mounson to the same intent And if a Copyhold descend to the Son he is not a Copyholder before admittance but he may take the profits of the Lands and punish a Trespasser CCCXLV. Mich. 15 Eliz. In the Common Pleas. THe Case was A man seized of Lands in Fee devised that his Wife should take the profits of his Lands until Mary his Daughter and Heir should come to the age of 16 years and if the said Mary shall dye that J. S. should be his Heir Manwood The Daughter after she hath attained the age of 16 years shall have the Land in tail for Devises ought to be construed according to the intent of the Devisor as near as it may be collected but no intent shall be taken against all reason and certainty It is certain that the Daughter shall not have the Fee-simple for the same should have descended to her without any Devise and these words if she dyed cannot be intended a Condition for it is certain that she shall dye But if the words had been before the age of 16 years That after her death J. S. should be his Heir in such case it had been a Condition And when it is said That J. S. should be his Heir it shall be intended his Collateral Heir so as the Estate tail remains in the Daughter Mounson and Harper contrary And that she should have but for life And by Mounson if J. S. had been a Stranger to the Devisee she should take nothing And this case was put by Barham Serjeant A man devised 100 l. to his youngest daughter 100 l. to his middle daughter and 100 l. to his eldest daugher and that all these Sums should be levied out of the profits of his Lands And it was the better Opinion of the Court that the youngest daughter should be first paid and then the middle and then the eldest daughter and that was one Coniers Case Mich. 16 Eliz. In the Common Pleas. CCCXLVI The Archbishop of Yorks Case 3 Leon. 159. THe Case was The King granted to the Archbishop of York the Toll of Corn sold in the Market of Rippon and afterwards the King granted to the Mayor and Citizens of York to be discharged of Toll through the whole Realm and afterward the Archbishop exchanged his Manor of Rippon with the King for another Manor It was moved if now the Citizens of York should be discharged of Toll for the Grant to the Archbishop was eigne to the Grant to the Citizens of York to be discharged of Toll in Rippon Dyer conceived that they should not be discharged for the King had no right and when the King grants over the Manor of Rippon the Grantee shall have the Toll notwithstanding the Grant made to the Citizens for the Grant made to them was void as to discharge them of Toll at Rippon for the Grant to the Citizens shall not take effect after the Exchange for the Grant was void ab initio But if the Grant of the King to the Archbishop had been but for life then the Grant afterwards made to the Citizens should have taken effect after the Estate for life determined And the better Opinion of the Court was that Toll should be paid Mich. 29 Eliz. In the Exchequer CCCXLVII The Bishop of Londons Case THe Case was The King Lord Mesne and Tenant the Mesnalty is holden in Chief and the Tenancy by Service the Mesnalty Escheats by Attainder now if the Tenancy shall be holden in Chief Manwood It hath been holden that no Tenure in Capite may be if not by the making of the King And he said That if before the Statute of West 3. the Tenant of the King had made a Feoffment to hold of him so that now there is Lord Mesne and Tenant and afterwards the Mesnalty comes to the King by Attainder and if by the said Mesnalty to the Crown the Seigniory paramount be extinct then the Tenancy is not holden in Chief but if the Mesnalty be drowned in the Seignory it is otherwise Some held That there was a difference where the Mesnalty comes to the Seigniory and where the Seigniory comes to the Mesnalty Quaere Trin. 26 Eliz. In the Kings Bench. CCCXLVIII Burgess and Fosters Case IN Ejectione firmae the Case was That the Dean and Chapter of Ely were seized of the Manor of Sutton whereof the place c. is parcel demised and dimisable by Copy according to the custom And that the said Dean and Chapter by their Deed granted the Stewardship of the said Manor to one Adams to execute the said Office per se vel legitimum suum deputat ' eis acceptabilem After which the said Adams made a Letter of Deputation to one Mariot ad Capiend ' unam sursam redditionem of