c. But if a man be convict in the Star-Chamber for Forgery upon the Stat. 5 Eliz. In that Case for the double Costs and Damages an English Writ shall be made directed to the Sheriff c. reciting the Conviction and Statute for levying the said Costs and Damages c. and to bring the money into Star-Chamber and the Writ shall be sealed with the Great Seal and the Teste of the King The like Resolution was in Langdale's Case in that Court Hill 7 Jac. Regis In the Common-Pleas Morse and Webb's Case In a Replevin brought by John Morse against Robert Webb of the taking of two Oxen the last day of Novemb. 3 Jac. regis nunc in a place called the Downfield in Luddington in the County of Worcester The Defendant as Bayliff to William Sherington Gent. made Conuzance because the place where is an Acre of Land which is the Freehold of the said William Sherrington and for Damage feasants c. In Bar of which Avowry the Plaintiff said That the said Acre of Land is parcel of Downfield and that he himself at the time and before the taking c. was and is yet seized of two Yard-Land with the Appurtenances in Luddington and that he and all those whose Estate he hath in the said 2 Yard-Land time out of mind c. have used to have Common of Pasture per totam contentam of the said Place called the Downfield whereof c. for 4 Beasts called Rother-Beasts and two Beâ—sts called Horse-Beasts and for 60 Sheep at certain times in the Year c. And that he put in the said two Oxen to use his Common c. And the Defendant maintained his Avowry and traversed the Prescription upon which the Parties were at Issue and the Jury found a special Verdict That before the taking one Richard Morse Father of the said John Morse now Plaintiff whose Heir he is was seized of the said two Yard-Land and had Common of Pasture c. as is before alleadged and so seized the said Richard Morse 20 Eliz. demised to William Thomas and John Fisher divers parcels of the said two Yard-Land to which c. viz. the four Butts of Arable with the Common and Inter-Common to the same belonging for 400 years By force whereof the said William Thomas and John Fisher entred c. so seized dyed whereby the Possession and Reversion of the said two Yard-Land descended to John Morse now Plaintiff And if upon the whole Matter John Morse now hath and at the time of the taking c. had Common of Pasture c. for c. as to the said two Acres of Land with the Appurtenances in Law or not the Jury pray the Advice of the Court. Note This Plea began Trin. 5 Jac. Rot. 1405. and upon Argument at the Bar and Bench 1. It was Resolved by the whole Court That it ought to be found against the Defendant who had traversed the Prescription For though all the two Yard-Lands had been demised for years yet the Prescription made by the Plaintiff is true But if he would take advantage of the matter in Law he ought confessing the Common to have pleaded the said Lease but when he traverseth the Prescription he cannot give the same in Evidence 2. Resolved That if the said Lease had been pleaded that the Common during the Lease for years is not suspended or discharged for each of them shâ—ll have Common rateable and in such manner that the Land in which c. shall not be surcharged 3. Resolved That Common appendant to Land is as much as to say for Cattel leuant and couchant upon the Land in which c. 4. There is no difference when the Prescription is for Cattel leuant and couchant and for a certain numbâ—r of Cattel leuant and couchant But when the Prescription is for Common appurtenant to Land there a certain number of the Cattel ought to be expressed which are intended by the Law to be leuant and couchant Hill 7 Jac. Regis In the Common-Pleas Hughes and Crowther's Case In a Replevin between Robert Hughes Plaintiff and Richard Crowther Defendant which began Trin. 6. Jac. Rot 2220. The Case was Charles Fox was seized of 6 Acres of Meadow in Bedston in the County of Salop in Fâ—â— and 10 Octob. 9 Eliz. leased the same to Charles Hibbens and Arthur Hibbens for 60 years if the said Charles and Arthur should so long live and afterwards Charles dyed and if the Lease determine by his death was the Question And it was adjudged That by his death the Lease was determined For the life of a man is meer collaterall unto the Estate for years otherwise if a Lease be made to for the Lives of J. S. and J. N. See Brudnel's Case in the 5th Part of my Reports which Case was affirmed for good Law by the whole Court Pasch 8 Jac. Regis In Communi Banco Heydon and Smith's Case Richard Heydon brought an Action of Trespass against Michael Smith and others of breaking his Close called the Moor in Ugley in the County of Essex the 25 day of June 5 Jac. Et quandam arborem suam ad valentiam 40 s. nuper crescen succiderunt The Defendants said that the Close and at the time of the Trespass was the Freehold of Siâ— John Leventhrop Knight c. and that the said Oak was a Timber-Tree of 30 years growth and more and justifies the cutting down of the Tree by his Command The Plaintiff replyes and saith That the said Close and a House and 28 Acres of Land in ugley are Copy-hold and parcel of the Mannor of Ugley c. Of which Mannor Edward Leventhrop Esq Father of Sir John Leventhrop was seized in Fee and granted the said House Lands and Close to the said Richard Heydon and his Heirs by the Rod at the Will of the Lord according to the Custome of the said Mannor and that within the Mannor there is such a Custome Quod quilibet teneres Customar ejusdem Manerii sibi haeredibus suis ad voluntat Dom. c. a toto tempore supradicto usus fuit ad ejus libitum amputare ramos â—mnimodum arborum called Pollingers or Husbords super terris tenement suis Customar crescen pro ligno combustibili c. and also to cut down and take all manner of Trees called Pollingers and Husbords and all other Timber Trees c. for reparation of their Houses and also for Plough-boot and Cart-boot and that all the Trees c. hitherto growing upon c. were not sufficient for the necessary uses aforesaid And that the said Richard Heydon from the time of the said Grant had preserved c. all Treas c. growiâ—g upon the said Lands to him granted and that after the said Edward Leventhrops death the Mannor descended to the said Sir John and that at the time of the Trespass the aforesaid Messuage of the said Richard Heydon was in decay c. upon which the Defendant demurred in
holden That if one were to sit in the Chancel and hath there a place his Carpet Livery and Cushion the Parson cannot claim them as Oblations for that they were hanged there in honour of the Deceased the same Reason of a Coat-Armour c. And the Chief Justice said the Lady might have a good Action during her Life in the Case aforesaid because she caused the things to he set up there and after her death the Heir shall have his Action they being in the nature of Hire-looms which belong to the Heir And with this agrees the Laws of other Nations Bartho Cassanâ—us sol 13. Coâ—cl 29. Actioâ— dat si aliquis arma in aliquo loco posita deleat aut abrasit c. and in 21 Ed. 3. 48. in the Bishop of Carlisle's Case Note That in Easter Term 10 Jacob. it was Resolved in the Star-Chamber in the Case between Hussâ—y and Katharine Leyton that if a man have a house in any Parish and that he and all those whose Estate he hath have used to have a certain Pew in the Church that if the Ordinary will displace him he shall have a Prohibition but where there is no such Prescription the Ordinary shall dispose of common and vulgar Seats Earl of Shrewes buryes Case Sir Humphry Winch Sir James Ley Sir Anthony St. Leger and Sir James Hullesâ—on certified the Lords of the Councel by Command from them by Letters dated 28. Martii 1612. of the Claim of Gilbert Earl of Shrewesbury to the Earldome of Waterford and Barony of Dungarvan in Ireland as followeth King Henry the Sixth by Letters-Patents in the 20th year of his Reign did Grant to his Cosin John Earl of Shrewsbury in consideration of his Loyal Services in the City and County of Waterford pro se c. ipsum in Comitem Waterford una cum stilo et titulo ac nomine ac honore eisdem debitis ordinamus creamus habendum to the said Earl and his Heirs-males of his Body and further did Grant the Castles Lordships c. of Dungarvan to the said Earl and the Heirs-males of his Body To hold c. of the King and his Heirs by Homage and Fealty and by the Service of being his Majesties Seneschal in Ireland After in the Parliament called Des Absentees holden at Dublin in Ireland 10. Maii 28 H. 8. It was enacted by reason of the long absence of George Earl of Shrewesbury out of the said Realm That the King his Heirs c. shall enjoy in right of his Crown of England all Honors Mannors Castles c. and all and singular possessions c. as well Spiritual as Temporal which the said George Earl of Shrewesbury and VVaterford or any other Persons had to his Use c. King Henry the 8th by his Letters Patents dated 29th of his Reign reciting the said Statute Nos praemissa Considerantes c. did Grant to the said Earl and his Heirs the Abbey of Rufford with the Lands thereunto c. in the County of Nottingham and the Lordship of Rotheram in the County of York the Abbeys of Chestersteld Shirbrook and Glossaâ—dale in Derbyshire with divers other Lands c. to be holden in Capite And the Questions were as followeth 1. Whether by the long absence of the Earl of Shrewsbury out of Ireland the Title of the Honor be lost and forfeited he being a Peer of both Realms and refiding here in England 2. Whether by the Act Des absentâ—es 28 H. 8. the Title of Dignity of Earl of VVaterford be taken from the said Earl as well as the Land c. Afterwards by other Letters Patents dated 27th of Sept. 1612. the two Chief Justices and Chief Baron were required to consider of the Case and to certifie their Opinions which Case being argued by Councel learned in the Law in behalf the said Earl and they having taken great advisement It was unanimously Resolved by them all as followeth 1. As to the fiâ—st Resolved That since it does not appear what defence was requisite and that the Consideration Executory was not found by Office to be broken in that Point the said Earl of Shrewsbury notwithstanding does remain Earl of Waterford 2. As to the second It was Resolved That the said Act 28 H. 8. Des Absenteâ—s does not onely take away the Possessions given him at his Creation but also the Dignity it self for though one may have a Dignity without Possession yet is it very inconvenient that Dignity should be cloathed with Poverty and so it was resolved in the Lord Ogles Case in Edw. 6. Reign as the Baron of Burleigh 35 Elâ—z did report The cause of Degradation of George Nevil Duke of Bedford is worth observation which was done by Act of Parliament 16 June 17 Ed. 4. which Act reciting the making the said George Duke sets forth the cause of his Degradation in these words And for so much as it is openly known that the said George hath not or by Inheritance may have any livelyhood to support the said Name Estate and Dignity c. Therefore the King by Advice of his Lords Spiritual and Temporal and Commons c. Enacteth c. That from henceforth the same Creation of the said Duke and all Names of Dignity given to the said George or to John Nevil his Father be void and of none effect Wherein are to be observed 1. That though the Duke had not Possessions to maintain his Dignity yet it could not be taken from him but by Act of Parliament 2. Great Inconveniencies follow where there is great State and Dignity and no means to maintain it 3. It is good reason to take away such Dignity by Act of Parliament and then the Act shall be expounded to take away such Inconvenience And though the Earl of Shrewsbury be of great Honour Vertue and Possessions in England yet it was not the Intention of the Act to continue him Earl in Ireland when his Possessions there were taken away And where it was objected that the general words Honours and Hereditaments are explained and qualified by the said Relative subsequent which the said George or any to his use hath Now in regard no man can be seized of the said Digniâ—y therefore the Act doth not extend to it 'T is answered that is to be understood Reddendo singula singulis and these words which the said G. E. hath are sufficient to pass the Dignity and with this agrees all the Judges Opinions in England in Nevils Case upon the like in the Statute 28 H. 8. in 7th Part of my Reports sol 33 and 34. Hill 2 Jacob. Regis Jurisdiction of the Court of Common-Pleas In the last Term by the King's Commands the Justices of the Kings Bench and Barons of the Exchequer were assembled before the Lord Chancellor Ellesmere at York-house to deliver their Opinion Whether there was any Authority in our Books that the Justices of the Common-Bench may grant Prohibitions or whether every Plea ought to be pending
found by Office as appears by the Books 11 H. 4. 52. Ass 31. 30. Ass 28. 46 Ed. 3. bre 618. 9 H. 7. 24. c. 1 As to the first it was Resolved That the Wife should be endowed and that the Fine with Proclamations was not a Bar to her and yet it was Resolved That the Act 4 H. 7. c. 24. shall barre a Woman of her Dower by such a Fine if the Woman bring not her Writ of Dower within five years after the Husbands death as was adjudged Hill 4 H. 8. Rot. 344. in the Common-Pleas and 5 Eliz Dyer 224. For by the Act the Title of Feâ—e-Covert iâ— saved by taking Action in 5 years after she is uncovert c. But it was Râ—solved That the Wife was not to be aâ—dâ—d by that saving for in respect of her Husbands Attainder she had not any Right of Dower at his death nor could sue for the same after his death But it was Resolved That the Wife was to be aided by another former saving in the same Act viz. And saving to all other persons viz. who were not Parties to the Fine such Action Right c. as shall first grow or come c. to them after the Fine ingrossed and Proclamations made by force of any Gift in Tail or other Cause or Matter before the Fine levyed so that they take their Action and pursue their Title within 5 years after such Right come to them c. And in this Case the Action and Right of Dower accrewed to the Wife after the Reversal of the Attainder by reason of a Title of Record before the Fine by reason of the Seizin in Fee had and Marriage made before the Fine levyed according to the meaning of the said Act. And as to the Point of Relation it was Resolved That sometimes by construction of Law a thing shall relate ab initio to some intent and to some not for relatio est fictio Juris to do a thing which was and had essence to be adnulled ab initio betwixt the same Parties to advance a Right but not to advance a Wrong which the Law hates or to defeat Collateral Acts which are lawful and chiefly if they concern Strangers for true it is as hath been said that as to the mean profits the same shall have relation by construction of Law till the time of the first Judgment given and that is to favour Justice and advance his Right that hath Wrong by the Erroneous Judgment But if a Stranger hath done a Trespass upon the Land in the mean time he who recovereth after the Reversal shall have an Action of Trespass against the Trespassors and if the Defendant pleads there is to such Record the Plaintiff shall shew the Special Matter and maintain his Action And for the better apprehending the Law on this Point it is to know That when any man recovers any Possession or Seizin of Land in any Action by Erroneous Judgment and afterwards the Judgment is reversed as is said before and thereupon the Plaintiff in the Writ of Errour shall have a Writ of Restitution and that Writ reciâ—es the first recovery and the Reversal of it in the Writ of Errour is That the Plaintiff in the Writ of Errour shall be restored to his Possession and Seizin Una cum exitibus thereof from the time of the Judgment c. Tibi praecipimus quod cadem A. ad plenariam seizinam tenementor praed c. restitui facias per Sacramentum proborum c. diligâ—nter inquiras ad quantum exitus proficua tenementor illor c. a tempore falsi Judicii c. usque ad Oct. Sanct. Mich. anno c. quo die Judicium illu c. revocat fuit c. et quâ—liter hoc praecept c. in Octâ—b c. By which it appears that the Plaintiff in the Writ of Errour shall have Restitution against him who recovereth of all the mean Profits without any regard by them taken for the Plaintiff in the Writ of Erâ—our cannot have Remedy against a Stranger and therefore the words of the said Writ command the Sheriff to inquire of the Issues and Profits generally c. And therefore the Plaintiff in the Writ of Errour after the Reversal shall have any Action of Trespass for a Trespass mean and therewith agreeth Brian Chief Justice 4 H 7. 12. a. See Butler and Baker's Case in the third Part of my Reports good matter concerning Relations So as it was Resolved in the Case at Bar though to some intent the Reversal hath relation yet to bar the Wife of her Dower by fiction of Law by the Fâ—ne with Proclamations and five years past after the Husbands death when in truth she had not cause of Action nor any Title so long as the Attainder stood in force should be to do a Wrong by a fiction in Law and to bar the Wife who was a meer stranger and could have no Relief till the Attainder was reversed As to the other Objection That the Demandant on the Petition ought to have an Office found for hâ—r It was Resolved That it needed not in this Case because the Title of Dower stood with the Queens Title and affirmed it Also in this Case the Queen was not intitled by any Office that the Wife should be driven to traverse it for then she ought to have had an Office But in case of Dower though that Office had been found for the Queen which doth not disaffirm the Title of Dower in such Case the Wife shall have her Petition without Office See Sâ—dlers Case in the Fourth Part of my Reports And the Case put on the other side was utterly denied by the Court for it was Resolved That if a man seized of Lands in Fâ—e take a Wife of eight years of Age and alien his Lands and after the Wife attains to the Age of nine years and afterwards the Husband dyeth that she shall be endowed because the Title of Dower being not consummate till the death of the Husband and there being Marriage Seizin in Fee age of 9 years and the Husbands death for that cause she shall be endowed it being sufficient that the Marriage Seizin and Age happen during the Coverture So if a man seized of Lands in Fee take a Wife and after she elopes from her Husband now she is barrable of her Dower if during the elopement the Husband alien and after the Wife is reconciled she is Dowable So if a man hath Issue by his Wife and the Issue dyeth and afterwards Land discends to the Wife or she purchase Lands in Fee and dyes without other Issue the Husband for the Issue which he had before the Discent or Purchase shall be Tenant by the Courtesie But if a man taketh an Alien to Wife and afterwards he aliens his Lands and after that she is made a Denizen she shall not be endowed for she was not by her Birth capable of Dower but by her Denization it began But