by reason of the Waiver in the Devisor shall be sole seised ab initio for the said Elizabeth might have had Dower therof if she would as in the like case it is adjudged in 17 E. 3. 6. and therfore a sole Seisin in the Husband and the descent to the Heir in such a case upon the Waiver shall take away the entry of him who hath right to it And therfore the case now for the Mannor of Hinton is within the very letter of the Statute as well for the sole Seisin which was in the Devisor as for the immediate descent which was from the Devisor to his Heir and therfore remains to the Heir for a good third part of the Inheritance of the Devisor by the very letter of the Statute and if the Letter had not helped it yet it shall be helped by the purport and intent of the Statute which ought to be liberally and favourably construed for the benefit of the Subject who before the Statute of Vses might have disposed of his whole Land by reason of Vses by his Will and the Statute of 27 H. 8. excludes him therof and therfore the Statute of 32. 34 H. 8. are to be liberally expounded as to the Subject for the two parts and the rather because it appeareth by the preamble of the Statute of 32 H. 8. that it was made of the liberality of the King and because that by 34 H. 8. it appeareth that it was made to the intent that the Subject shall take the advantage and benefit purposed by the King in the former Statute by all which it appeareth as they said that the said Statutes shall be liberally expounded for the advantage of the Subject and for his benefit and not so strictly upon the letter of the Law as hath been moved and so they concluded that Iudgment ought to be given for the Plaintiff Popham and Anderson the two chief Iustices and all the other Iustices and Barons held the centrary and that Iudgment ought to be given against the Plaintiff and that by the very letter and purport of the Statutes of 32 34 H. 8. for they said they are to consider what Estate the Devisor hâ—d â—â— the Land at the time of his Devise made without regard to that which might happen by matter Ex post facto upon the Deed of another and if it had beâ—n demanded of any apprised in the Law at the time when the Will wâ—s made what Estate the Devisor then had in the Mannor of Hinton 〈◊〉 is so unlearned to say that he had other Estate in it then joyntly with his Wife And if so it follows that this Mannor was then out of the letter and intent of the Law for he was not then sole seised therof nor seised in coparcenary nor in common and by the words he should be sole seised in Fee-simple or seised in Fee-simple in coparcenary or in common It appeareth that the intent of the Statute was that he shall have full power of himself without the means or aid of another to dispose of the Land of which he is by the Statute to make disposition or to leave it to his Heir and this he hath not for the Mannor of Hinton here And further the words of 32 H. 8. are That the Devisor hath full power at his Will and pleasure to devise two parts of his Land so holden as here and this is to be intended of such Land of which he then had full power to make disposition â—nd this he could not then do for the Mannor of Hinton And further the words of 34 H. 8. are that the devision for the parts shall be made by the Devisor or Owner of the Land by his last Will in writing or otherwise in writing and in default therof by commission c. And can any say with reason that it was the intent of the Statute that he shall make the Devision of other Lands then of those of which he then had full power to devise or to leave to his heir without any future accident to help him or the mean of Anthony by matter Ex post facto It is cleer that reason cannot maintain it And the words following in the Act which are That the King shall take for his third part the Land which descended to the Heir of the â—state tail or of Fee-simple immediatly after the death of the Devisor much enforce the opinion on this side for it cannot be said upon the death before the Waiver that this Mannor of Hinton was immediatly descended ergo it ought not to be taken for the third part And further the words are If the Lands immediatly descended upon the death of the Devisor c. do not amount to a full third part that then the King make take into his hands so much of the other Lands of the Devisor as may make a full third part c. wherby it is cleer that in this case if the wife had not waived her Estate for ten years after the death of the Devisor that for all this time the Queen could not meddle with the Mannor of Hinton and therfore in the mean while she might well have so much of the Mannor of Thoby which might well have made a full third part to her and for so much which she took the Will was alwaies void which shall never be altered nor made good by any Waiver Ex post facto And although the Waiver of the Fame put the Inheritance entirely in the Devisor and in his Heir in relation to divers respects yet as to other respects he shâ—ll not be said in them with such relation and especially upon the Statute in which we now are to respect the power as it was in him at the time of his death before this future Contingent And by Popham If the exposition on the other side shall hold place upon the Statute perhaps a man shall not see by the space of six years or more after the death of a Devisor how his Devise shall work As a Feoffment in Fee is made to I. S. and a Feme Covert and their Heirs of 10 l. Land holden by Knights-service in Capite which I. S. hath 20 l. Land in fee so holden also I. S. makes a Devise of his 20 l. Land the Husband lives 60. years after none will or can deny but that for this time the Devise is not good for two parts now the Husband dies and the Wife waives the Estate made to her this puts the Inheritance therof in the Heir of I. S. with relation to divers respects but not to this respect to make the Will now good for the whole 20 l. Land which therfore was void for the third part therof for the Will which once was void by matter Ex post facto after the death of the Devisor cannot be made good And by him the descent in such a case is not such that it shall take away the entry of him who hath right because
Vse may be averred without Deed upon a Fine sur Render And all agreed that if there had been a Deed to have declared the purport of the Fine that the Fine shall not be taken to extend further then is comprised in the Deed. And what is the cause therof the Deed or the intent of the parties and none can say but that it is the intent of the parties and not the Deed and the intent may as well appear without the Deed as with it albeit it be not so conclusive by Parole as by Deed. And therfore suppose I have 100. acres of Land in a Close in D. and I. S. hath another 100. acres in the same Close and Town and I. S. hath a 100. acres of Land in the same Town out of this Close and my intent is to levy a Fine to I. S. of the whole Close by the name of 200. acres of Land with a Render as before and I levy it accordingly shall the Render enure to the Land which I. S. had in the same Town It is cleer that it shall not although it be without Deed why then shall the Fine here be taken to work rather to the Land called Karkian then to any other Lands which any other had in the same Towns when it appeareth plainly that it never was the intent of the parties that the Fine should extend to these Lands called Karkian and it was decreed in Chancery accordingly Hall versus Arrowsmith 4. IN the case between Hall and Arrowsmith it was agreed by the whole Court in the Kings Bench That if a Copyholder for life hath licence to make a Lease for three years if he shall live so long and he makes a Lease for three years without such a Limitation that yet this is no forfeiture of his Estate because the operation of Law makes such a Limitation to the Estate which he made to wit that it shall not continue but for his life and then such an express Limitation in the case where the Law it self makes it is but a meer trifle and yet if a Lessee for life makes a Lease for years and he in the Reversion confirm it it remains good after the death of the Tenant for life but this then shall be as if it had been made by him in the Reversion himself and shall be his Lease But if the Lease there had been made determinâ—ble upon the life of Tenant for life the confirmation therof by him in the Reversion will not help him after the death of him who was Tenant for life Causa patet But in the principall case if the Copyholder had had an Estate in Fee by Copy it had been a forfeiture of his Estate to make an absolute Lease because in that case he does more then he was licensed to do And they agreed that such a licence cannot be made to be void by a Condition subsequent to the execution therof to undo that which was once well executed But there may be a Condition precedent united to it because in such a case it is no licence untill the Condition performed but the licence before mentioned is not a condition all Licence but a Licence with a Limitation and therfore hath not been of force if the Limitation which the Law makes in this case had not been and the Limitation in Law shall be preferred before the Limitation in Deed where they work to one and the same effect and not different Arthur Johnsons Case 5. ARthur Johnson was possessed of a Term for years and so possessed assigned this over to Robert Waterhouse and John Waterhouse being Brothers to the Wife of the said Johnson to the use of the said Wife the said Johnson dies and makes his Wife his Executrix after which the said Wife takes Robert Witham to Husband who takes the Profits of the Land during the life of his said Wife the Wife dies Intestate her said Brothers being next of kin to the said Wife took administration as well of the Goods of the said Wife as of her first Husband And whether the said Waterhouses or the said Witham shall have this Lease or the use therof was the question in the Chancery and therupon put to the two chief Iustices upon which they and the chief Baron and all the other Iustices of Serjeants-Inne in Fleetstreet and Beamont also were cleer in opinion that the said Administrators had now as well the Interest as the Vse also of the said Term as well in Conscience as in Law and that they had the use as Administrators to the said Wife and that the said Witham shall not have it because it is as a thing in Action which the Administrators of the Wife alwaies shall have and not the Husband As if an Obligation had been made to the use of the Wife And this opinion was certified accordingly to the Lord Keeper of the great Seal of England and it was so decreed Taunton versus Barrey 6. IN an Ejectione firmae brought by Giles Taunton Plaintiff in the King Bench against Giles Barrey Defendant the Case was thus Iohn Coles Esquire made a Lease of the Lands in question to the Father of the said Barrey for divers years depending upon the life of the Lessee and of the said Defendant and of the Survivor of them upon condition that the said Father should not alien without the consent of the said Coles his heirs after which the said Father devised the Term to the said Defendant and died making his Executor who assented And the question upon this point found upon a speciall Verdict was whether upon the matter the Condition were broken and by the opinion of the whole Court adjudged that it was for in such a case he ought to have left it to his Executor without making any Devise of it for the Devise is an Alienation against him and therfore it was agreed that the Plaintiff shall recover Term 37 Eliz. Rot. between Roper and Roper Michaelmas Term 38 39. Eliz. Everets Case 1. THis Case was moved by the chief Iustice to the other chief Iustices at Serjeants-Inne in Fleetstreet concerning one Everet who before was attaint for stealing of a Horse reprieved after Iudgment and Indited again for stealing another Horse before this Attainder And the Vicar of Pelton in the County of Somerset was Indited as accessary before this Felony for the procurement of it And Everet being again Indited upon this last Inditement did not plead that he was formerly Indited of another Felony c. but acknowledged the Inditement wherby the Accessary was Arrained tried and found guilty and had his Iudgment also as the principall but the Execution of the Accessary was respited And now moved whether upon this matter it shall be fit to execute the Accessary the principall being executed And it seemed convenient to all the Iustices and Barons that he shall be executed and that the matter was cleer in this case because the principall did not take advantage of his
E. 6. with the assent of the Dean and Chapter and by Writing indented demised the said Prebend to the said William Sydall for 43. years from the Feast of the Annunciation of our Lady in the year of our Lord 555. at the yearly rent of 361. William Sydall assigned over his term and died making the said Thomas his Executor Henry Sydall also died and afterwards the Plaintiff was made Prebend and for the rent arrear in his time and after the assignment this Action is brought against the Executors in the Debet and Detinet And it was alledged that in Hillary Term 36 Eliz. Rot. 420. in the case between Glover and Humble it was adjudged in the Kings Bench that the Grantee of the Reversion shall not maintain an Action of Debt upon a Lease for years against the Lessee himself for any arrears of Rent incurred after that he had made an assignment of his Term over to another and alledged also that in Hillary 29 Eliz. in a case between it was adjudged that an Action of Debt lyeth for the Lessor himself against the Lessee for arrearages of Rent reserved upon the Lease and accrued after the Lessee had assigned his Term over and both these cases were adjudged accordingly in the Kings Bench and the reason in the first case was because that by the Grant of the Reversion over the privity of contract which was between the Lessor and the Lessee is dissolved and the Grantee of the Reversion as to it but a stranger But in the last case the privity of contract is not dissolved between the Lessor and the Lessee notwithstanding the Lessee hath passed over his Term neither is the contract therby determined between the parties But Fennor said that in this case the privity in Deed is gone by the death of the Lessee and therfore the Executor who is but privy in Law is not subject to this Action unlesse in case where he hath the Term in which case he shall be charged as he who hath Quid pro quo which is not in the case here And he said further that a Lease made by a Prebend is good no longer then his own life but is meerly void by his death and therfore shall not be said to be a contract to bind further then his life and therfore also he said that the Action will not lye in the said case for the Successor But Gawdy said that here the Lease is confirmed and therfore good during the Term but it seemed to him that the Executor who is but in privy in Law shall not be chargable with this action for the arrearages due after the assignment over and yet he agreed that the Heir the Successor and the Executor of the Lessor shall have debt against the Lessee himself for the arrearages which accrues to be due after the assignment over of the Lease But he said that the Action of Debt against the Executor upon a Lease made to the Testator and for the arrearages due in the time of the Executor ought to be in the Debet and Detinet and that for the occupation of the Term wherby he hath Quid pro quo which is not in this case Popham said that for the time that the contract shall bind in nature of a Contract there is not any difference between thâ— Heir the Successor and the Executor of the Lessor and the Executor or Administrator of the Lessee for the one and the other are equally privy to the Contract and a Contract or Covenant especially being by writing binds as strongly the Executor or Administrator as the Testator or the Iâ—testate himself who made it For these are privies indeed to the Contract and as to it represent the person of the Testator or Intestate himself And he agreed that the Action of Debt against the Executors for the arrearages of Rent of a Lease which he occupies as Executor and accrued in their own time shall be in the Debet and Detinet The reason is although they have the Land as Executor yet nothinâ— ther of shall be â—mpâ—â—yed to the Execution of the Will but such Prâ—fits as are above that which wâ—s to make the Rent and therfore so much of the Profits as is to make or answer the Rent they shall take to their own use to answer the Rent and therfore they having Quid pro quo to wit so much of the Profits for the Rent the action ought to be brought against them in such cases where they are to be charged in Debt for Rent upon a Lease made to the Testator and have not the Profits of the Lease it self nor means nor default in them to come to it the action of Debt ought to be against them in the Detinet only and this is the case here and therfore the action being in the Debet and Detmet doth not lye And further he agreed in this case to the opinion of Fennor that the action here doth not lye for the Successor of the Prevend who made the Lease for no more then the Successor in this case shâ—ll be bound by the Contract of his Predecessor no more shall he take advantage by this Contract for it is the consideration which makes him to be bound and not only the Câ—ntract and so the Successor in such cases is but privy in Law and not in Dâ—ed tâ— the Contract of his Predecessor But otherwise it is â—f the Successor of a Bishop and the like which Leases are not void against the Successor but voidable Case of Armes 2. VPon an assembly of all the Iustices and Barons at Sergeants-Inne this Term on Munday the 15. day of April upon this question mâ—ved by Anderson chief Iustice of the Common Bench Whether men may arme themselves to suppresse Riots Rebellions or to resist Enemies and to endeavour themselves to suppresse or resist such Disturbers of the Peace or quiet of the Realm and upon good deliberation it was resolved by them all that every Iustice of Peace Sheriff and other Minister or other Subject of the King where such accident happen may do it And to fortifie this their resolution they perused the Statute of 2 E 3. cap. 3. which enacts that none be so hardy as to come with force or bring forcâ— to any place in affray of the Peace nor to go or ride armed night nor day unlesse hâ— be Servant to the King in his presence and the Ministers of the King in the execution of his Precepts or of their Office and these who are in their company assisting them or upon cry made for Weapons to keep the Peace and this in such places where accident happen upon the penalty in the same Statute contained wherby it appeareth that upon cry made for Weapons to keep the Peace every man where such accidents happen for breaking the Peace may by the Law arme himself against such evill Doers to keep the Peace But they take it to be the more discreet way for every one in such a case
one he would pay it where good where not this he may implead him presently Mich 12. Jac Kebles Case A man promiseth to pay so much in consideration of a Lease at Will and it was holden no good consideration for by the same breath that he creates it he may defeat it Pasch 8. Jac. Austins Case A man promise that in consideration he would forbear another he would pay it and no time was limited and therefore it was holden no good consideration Trin. 38. Eliz. Rot. 523. A man promise quod non implacitabit and avers quod non implacitavit and because of the uncertainty it was holden no valuable consideration Doderidge Justice If there be no consideration at the time or no cause of Action the forbearance afterwards will not make it actionable and he said that it had been adjudged in this Court that a consideration to forbear for a little time is not good but by some to forbear for a reasonable time is good But in the principall Case upon the hearing of the Declaration read it appeared that it was that he should never implead him upon the said obligation so that if the Plaintiff brings an Action upon the obligation the Defendant here may have an Action upon the Case against him Also it was non implacitabit and this shall be taken indefinitely quod nunquam implacitabit and therefore the Iudgement was affirmed for otherwise the Plaintiff shall both take advantage of this promise and of the bond also and here he hath in a manner forsaken the benefit of his bond and hath betaken himselfe to the benefit of this Assumpsit By Jones and Whitlock Iustices if A. be bound to me and I enter into bond to him that I will not sue this Obligation I cannot sue him upon the first Obligation without forfeiture of my bond and by Doderidge if an Obligation be forfeited and I say to the Obliger do not sue the Obligor or do not implead him an Action upon the case lies against me The same Term in the same Court. Arnold versus Dichton IN an Action upon the Case and Non-Assumpsit pleaded it was found for the Plaintiff and Noy mooved in arrest of Iudgement that there was no consideration to maintain this Action the Case being thus Arnold having married the Daughter of the Defendents Testator the Testator promised to give him 40 l. and meat â—nd drink for a year and a Featherbed and Bolster and afterwards the Testator in consideration that the Plaintiff would Assumpsit forbear to sue him all his life for it promised that he should have as good a portion at his death as any of his children and the Plaintiff declares that he gave to one Tho. P. one of his Sons 200 l. and that he left him at the time of his death but 30 l. but when he gave to Tho. P. the 200 l. appeares not peradventure it might be in his life time and this promise doth not extend to that which he had given before as if a man be bound to keep a Goale and that no prisoner shall escape this only extends to a future keeping and future escapes and not to other escapes which were before True it is that sometimes the Law will alter the sense as in the Case of 32. H. 6. where a man is bound that his Feoffees c. And at another day Doderidge said that the first promise was but an inducement to the second and the Defendant hath pleaded Non Assumpsit to the last promise and then comes the Plaintiff and shews that he gave to such a one 200 l. and doth not shew when this was given and this may be before the promise and therefore I conceive the Declaration is not good Jones agreed that the Declaration is not good for admit that in this case he had given to all his children but one great portions before the said promise and had given a small portion to one after the promise the Plaintiff now shall have but according to the said promise and it is alledged here that he gave to such a one 200 l. which may be before the promise and therefore the breach not well laid Whitlock contra and that the Plaintiff shall have according to the best gift in this case whether it were before or after the promise and that upon the intention of the promise for the intention is that the Plaintiff should have as good a marriage or portion with his Daughter as any other of his children should have But by Doderidge this construction cannot be made without offering violence to the words for then daret should be for dedisset and for any thing which appeareth he had a portion before and this was but a superaddition Jones put this case I am bound to enfeoff J. S. of so much Land as I will enfeoff J. D. this extends not to a Feoffment which I have made to J. D. before but only to a Feoffment which I shall make to him afterwards which was not denied by Whitlock and it was adjourned The same Term in the same Court. Barker versus Ringrose BArker brought an Action upon the Case against Ringrose and declared that whereas he was of good fame and exercised the Trade of a Wool-winder the Defendant spake these scandalous words of him that he was a Words Thou art a bankrupt Rogue Bankrupt Rogue and it was moved in arrest of Iudgement that those words were not actionable for the words themselves are not actionable but as they concern an Office or Trade c. and it appeareth by the Statute of 27. E. 3 that a Wool-winder is not any Trade but is but in the nature of a Porter so that the Plaintiff is not defamed in his function because he hath not any also it is not averred that he was a Wool-winder at the time of the words speaking Jones Justice If one saith of a Wool-winder that he is a false Wool-winder action upon the Case lieth and it was demanded by the Court A Wool-winder wâ—at he is what a Wool-winder was and it was answered that in the Countrey he is taken to be a Wool-winder that makes up the fleece and takes the dirt out of it and a Wool-winder in London opens the fleeces and makes them more curiously up and in London they belong to the Mayn of the staple Doderidge If one saith of a Sher-man that he is a Bankrupt Action lyes and so it hath been adjudged of a Shoo-maker and note that if one saith of any man who by his Trade may become a Bankrupt within the In what case to call a man Bankrupt is actionable Statutes that he is a Bankrupt an Action lies as of a Taylor Fuller c. And the Court seemed to incline that in this case being spoken of a Wool-winder in London the Action lies But Mich. 3. Car. the Case being moved again the Court was of opinion that the Action could not lye and would not give
shall take effect by Livery where by Jurolist 49 Grants of the King  Where voyd 61 H HEire Where he shall be charged where not 152 153 I JMparlance  Not before a Declaration is entred 150 Imprisonment  Where justifiable 13 Indictments 107 134 210 taken before Coroners Where quashed 202 Upon the Statute of 8. H. 9. of forcible entry of copy-hold Lands 205 Inn-keepers 128 179 may detain a Horse untill he be satisfied for his meat 127 Inquisition  by the Coroner in case of death must bee Super visum corporis per sacramentum proborem legatum hominum where not hood 210 Indiciments  for stopping a Church-way where good 206 For being a Night-walker where good 208 If good in one part shall not be quashed  Joyâ—ture  where it may be waived 88 Joynt-tâ—nants â—6 Justâ—fication 13. 161 Justices of Peace of Gaol delivery and Nisiprius and their power 17 Judgmâ—nts 211. 212 by Nihil dicit 153 Where a Judgment reversed without Errour brought where noâ— 181 Entred in the Book as a Memorandum stayed by a subsequent order of Court 181 L. Lâ—ases 99. 106. 57 Void by Acceptance 9 Where in Reversion good 9 By Tenants for life or years to begin after his death 96 By a Copyholder upon a License 105 Where determined without entry 27. 53. 64. Lessce for life without impeachment â—f Wast may make a Lease excepting the Trees 193 What interest he hath in them ib. Leeâ— 141 Libels  Where a privaâ—e Letter is punishable aâ— a Libell 139 Legacies not payable but upon demand 104 Livery of Seâ—sin 103 Where words spâ—ken upon the 〈◊〉 do amount to a Livery 47 49 Liâ—â—se  〈◊〉 couâ—termandable 151 〈◊〉 a Copâ—holder to make Leaâ—es 150 〈◊〉  〈…〉 by Bargain and Sale by word 48 Lunatick  The Action must be brought in his name 141 M. MAgis dignum continet in se minus 35 Mayhem 115 Market Overt  Where the Sale shall be good where not 48 In a Scriviners Shop of Plate void 84 What kind of Sale alters the property 84 Monstrans of Deeds 113 Melius Inquirendum  Where it shall issue where not and what to be found upon it 54 55 Misnosme 151 In Grains 57 Of a Corporation 58 N. NOtice 37. 151. Of a condition of payment where to be given 12 Taken strongly against the Party 12 Of one Sheriff to another Sheriff of the persons in Execution 85. 86 Where requisite 136. 164 Nusance 166 Errecting a Dove-coat by a Freeholder no Nusance 141 O. OBligation 165. discharged by the act of God 98 not to be avoided by the act of the Obligor himself 40 To the use of a Feme Covert shall go to her Administrator not to the Husband 106 One forfeited revived and good 16 Office and Officers  Where an Office is void Ipso facto 28 Forfeited and by what act 117 Of his own wrong 149 Office Trove 25 26 Where Lands shall be in the King without Office 19 Relates 20 helps the King to the meane profits 30 Countervailes an Entry And where no entry is requisite in case of a common person There needs no Office found for the King 53 Where an Estate shall be devested out of the King without Office 63 Where not 64. without Returne or Monstrans de droit 64 Oyer  Where of a condition where not 202 P. PAtents 16 Where the Patentee shall take advantage of a condition to avoid a Lease 27 Void for the generality in the Grant 61 Void notwithstanding the words Ex certa sciaentia 61 Perjury where not punishable 144 Pleadings 28. 42. 101. 109. 152. 150. 160. 163. 206. Void because double Plea 113. 114 Nul tiel in rerum natura no Plea in appeal of Mayhem 115 Perpetuities 97. not tollerable 80 Plenarty by Induction of a Lay-man 37. Binds not the King 133 Proviso How to be construed 27 For a Limitation 53. 117. 118 119 Where repugnant and void 87 Possessio fratris 35 Principall Accessare 107 Prisoners Must be delivered over at the Gaol 85. 86 Presentation 132 Proofs What Proofs are to be allowed in the Ecclesiasticall Court 59 Priviledges  Grant by the Pope not allowable 157 Prescription 169 For Common for Vicinage good 101 Difference betwixt it and Custome and how to be taxed 201 â—roperty 38 What kind of Sale alters the property 84 â—rohibition 59. 126. 159. 197 For a Seat in the Church 140 Severall Prohibitions in one Cause 156 Prerogative 26 Q. QViâ— juris clamat 63 〈◊〉 warrantâ— 150. 180 Quare Impedit by an Executor for a disturbance in vite Testator 189. 190 191 R. RAvishment of Ward by an Executor 190. 191 Recovery 6. 5 Releaâ—es 28. 132 Exâ—cuted where avoided by Proviso 16 Of all demands will dischaâ—ge a rest in â—uturo 136 Relation 12 Of a Baâ—l 132 Of Entry of Judgement 132 Return of the Sheriff of a Capias upon a day not Dies faci good 205 Request 160. 211. 212 Upon payment upon a Contract is not necessary 211. 212 Remainder 97 in Fee not good upon a Lease for years 4. 82 Must take effect when the particular Estate determines for life wiâ—hout impeachment of Wast whether he may cut Trees duâ—ing the life of Tenant for life 196. 74 Rents  Rent and Pension all one in a Demand in a â—ecovery 23 Where the Executor shall have the rent upon a Lease of the Wâ—ves land 145 Restitution  Of an Alderman to his place 134 Of one put out of his Office 176 Reservatâ—on 145 195. how construed 17 Revivor 167 S. SAvingâ— in an Act of Paâ—liament how construed 17 Scire 〈◊〉  Lâ—es â—â—t against the Bail till a Capiaâ— be awarded of the Principall 186 Seals 161 Scandalum Magnatum 66 Sheriffs Oâ—e Sheriff must deliver over the Prisoners to the other by Indeâ—ture 85. 86 Surplusage  shall not abate a Writ 24 Surrender 9. 31. 84. 110. 125 129 Of the Husband of the land of the Wife no discontinuance 38 39 Of an Infant Copyholder void 39 Of an Alderman of his place 134 Of Tenant for life in remainder good without Deed 137 138 T. TAles  where awarded of Aliens 36 Tender  where not good to avoid a condition 20 Title  where must be made 1 2 Trusts not abridged 8 Their difference from Uses 77 Traverse 1. 101. 103. not necessary where there are two Affirmatives but where they do not agree 67 Traverse upon a Traverse 101 Circumstances not traversable 161 Treason 122 Triall  Of the same person upon another Indictment after Attainder upon a former Indictment 107 Transporting Corn 149 Trespasse 161 Where Vi armis e contr 192 Tithes 140 Where discharged by Prescription or Priviledge 156 De animalibus inutilibus animalibus utrilibus and the difference 197 Of Sheep and their pasturing wool c. 157 V. VErdict 19 void 202 Found for thâ— Deâ—endants because no 〈…〉 â—â—tred for one of them 145 Volenti non fit injuria 9 Use and Uses  What a Use is 71 How to be construed 3 Not to be abridged 8 Void upâ—n a tender 18 Raised by word upon a good consideration where good where not 47 49 Raiâ—ed upon Contracts 48 Considerations to raise Uses 48 49 A bare Covenant writing without consideration will not raise an Use 50 What persons cannot stand seised to Uses 72 Uses contingent not executed by the Statute of 27. H. 8. 72 Uâ—es contingent destroyed by a Feoffment 72 Uses grounded upon fraud 77 Use cannot râ—â—e out of a Uâ—e 81 Uses in contingency barred by a Release of the Feoffees 83 Use upon a Bargain and Sale for years passeth without inrolement of the Deed 38 Use amerced upon a Fine upon render without a Deed 105 W. WAger of Law 127 Words  Where the King shall have a third part of the Land of the Ward and of other land setled upon a marriage 54 Wast 24. 25 47 Damages in Wast 24 Warrants  When a Warrant is returned upon Record in case of the King it is as strong as an Office found 20. 28 29 Warranty  doth bind an Infant if his Entry is not lawfull 71 cannot enlarge an Estate 138 Wills 152 Words which make a condition in Wills 8 Writ  of enquiry of damages 24 Where not abated 24 Originall shall be taken as they are written 101 FINIS
Grantor at his Election provided then afterwards that he shall charge his person is not good Causa patet And all agreed that upon a Rent granted upon equality of partition or for allowance of Dower or for recompence of a Title an Annuity doth not lye because it is in satisfaction of a thing reall and therfore shall not fall to a matter personall but alwaies remains of the same nature as the thing for which it is given And afterwards the same Term Iudgment was given in the Common Bench that the Plaintiff shall recover which is entred c. And in the same case Clark vouched that it was reported by Benloes in his Book of Reports where a Rent was granted out of a Rectory by the Parson who after wards resigned the Parsonage that it was agreed in the Common Pleas in his time that yet a Writ of Annuity lies against the Grantor upon the same Grant to which all who agreed on this part agreed that it was Law Butler versus Baker and Delves 3. IN Trespasse brought by John Butler against Thomas Baker and Thomas See this case in Cookes 3. Report foâ— 25 Delves for breaking his Close parcell of the Mannor of Thoby in the County of Essex upon a speciall Verdict the Case was thus William Barners the Father was seised in his Demesne as of fee of the Mannor of Hinton in the County of Glocester holden of the King by Knights-service in Capite and being so seised after the Marriage had between William his Son and heir apparant and Elizabeth the Daughter of Thomas Eden Esquire in consideration of the same Marriage and for the Joynture of the said Elizabeth assured the said Mannor of Hinton to the use of the said William the Son and Elizabeth his Wife and the Heirs of their two bodies lawfully begotten and died by whose death the Reversion also of the said Mannors descended to the said William the Son whâ—rby he was seised therof accordingly and being so seised and also seised of the Mannor of Thoby in his Demesne as of Fee holden also of the Queen by Knights-servivice in chief and of certain Lands in Fobbing in the said County of Essex which Land in Fobbing with the Mannor of Hinton were the full third part of the value of all the Land of the said William the Son and he made his Will in writing wherby he devised to his said Wife Elizabeth his said Mannor of Thoby for her life in satisfaction of all her Joynture and Dower upon condition that if she take to any other Joynture that then the Devise to her shall be void and after her decease he devised that the said Mannor shall remain to Thomas his Son and the Heirs Males of his body and for default of such Issue the remainder to Thomas brother of the said William for his life the remainder to hir first second and third Son and to the Heirs Males of their bodies and so to every other Issue Male of his body and for default of such Issue the remainder to Leonard Barners his brother and to the Heirs Males of his body the remainder to Richard Barners and the Heirs Males of his body the remainder to the right Heirs of the Devisor William the Son dies having Issue Thomas his Son and Grisell his Daughter Wife to the said Thomas Baker the said Elizabeth by Paroll in pais moved her Estate in the said Mannor of Hinton and after this entred into the said Mannor of Thoby after which the said Elizabeth died and Thomas the Son and Thomas the Uncle died also without Issue Male after which the said Leonard took one Mary to Wife and died having Issue Anthony Barners after which the said Mary took the said John Butler to Husband and after this the said Anthony assigned to the said Mary the said Mannors of Thoby in allowance for all her Dower wherby the said John Butler as in the right of his Wife entred into the said Mannor of Thoby wherby the said Thomas Delves by the commandment of the said Baker entred into the said Close of which the Action is brought as in right oâ— the said Grisell And whether this entry were lawful or not was the question which was argued in the Court in the time of the late Lord Wray and he and Gawdy held strongly that the entry of the said Delves was lawfull but Clench and Fennor held alwaies the contrary wherupon it was adjourned into the Exchequer Chamber But they all agreed that the Waiver made by the said Elizabeth by parole in pais was a sufficient Waiver of her Estate in Hinton and the rather because of the Statute of 27 H 8. cap. 10. the words of which are That if the Joynture be made after the Marriage that then the Wife surviving her Husband may after his death refuse to take such Joynture And now it was moved by Tanfield that Iudgment ought to be given for the Plaintiff for by the Waiver of the Wife the Inheritance of Hinton is now to be said wholly in the Husband ab initio and therfore that with Fobbing being a whole third part of the whole Land which now is to be said to be left to discend to the Heir of the Devisor as to Thoby is good for the whole and if so then no part therof descends to Grisell and therfore the entry of the said Delves in her right is wrongfull Coke Attorney-general to the contrary for he said That it is to no purpose to consider what Estate the Devisor had in the Mannor of Hinton by reason of this Waiver made by his Wife Ex post facto after his death But we are to see what Estate the Devisor had in it in the view of the Law at the time of his death before the Waiver and according to it the Law shall adjudge that he had power to make his Devise by means of the Statute and at this time none can adjudge another Estate in him but joyntly with his wife of which Estate he had no power to make any disposition or to devise it or to leave it for the third part to his Heir for the Statute which is an explanatory Law in this point saies that he ought to be sole seised in such a case And further the Statute of 34 H. 8. at the end is that the Land which descends immediatly from the Devisor shall be taken for the third part and this Land did not descend immediatly for it survived to the Wife untill she waived it and therfore this Land is not to be taken for any third part which the Statute purposed to have been left to the Heir and therfore so much shall be taken from Thoby as with Fobbin shall be a third part to descend wherbâ— Grisell the Heir hath good right yet to part of Thoby and therfore the entry of the said Delves in her right by commandment of her husband not wronfull Periam chief Baron Clench Clark Walmsley and Fennor That now
it was not an immediate descent in Deed but upon the operation of Law which gave Wardship and the like but not to prejudice any third person And he said that although the Queen or other Lord upon eviction of the Land descended or the determination of the Estate therof may resort to Lands devised or assured and take a third part therof yet therby the Devise or Assurance remains effectuall against the Heir but this is by a speciall clause in the Statute of 34 H. 8. which gives it to them but no such remedy is given to the Devisee to help him if his part be abridged or evicted And the words are precise to wit If the part left or assigned to the King or to any Lord at any time during their Interest therin be evicted c. that they shall have so much oâ— the two parts residue as shall make a full third part of the remainder not evicted c. Wherby it appeareth that this is given only for the benefit of the Lords and not of the Heir nor of the Devisee fâ—r if after the Interest of the Queen or other Lord be determined this which was left he evicted from the Heir it shall not be helped against the devise but the Devise remains good to the Devisee against the Heir for the whole Land devised wherby it appeareth that it was the very purport and intent of the Statute that the Devise remain as it was at the time of the death of the Devisor without having regard to that which hapneth Ex post facto unlesse for this point helped by this speciall clause of the Statute and this is for the Lord and his Interest only and for no other And by him also cleerly the Statute which is an explanatory Law shall never be taken by equity in the precise point explained to impugne the point of explanation as here the Statute wills that the Estate of Inheritance comprised in the former Statute shall be explained to be Fee-simple it cannot now by any equity be as to the power to make a Devise which is meerly given by the authority of the Statute said to be of any other Estate then Fee-simple of which a Devise may be made And therfore if Land be given to another and his Heirs for the term of another mans life a Devise cannot be made of this because it is not an Inheritance in Fee-simple but only the limitation of a Free-hold And where the Statute saith having a sole Estate we cannot by any equity that it shall be taken of any joynt Estate as to make any disposition of that which she had in Ioynture and therupon the greater part resolved that Iudgment shall be given against the Plaintiff for the Defendants Southwell versus Ward 4. IN a second deliverance between Richard Southwell Esquire Plaintiff and Miles Ward Avowant by Demurrer upon the Avowry the Case appeared to be this That Iohn Prior of the Church of Saint Faiths in Horsham in the County of Norfolk was seised in his Demesne as of fee in the right of his said Priory of 8. Messuages 300. acres of Land 30. acres of Meadow 60. acres of Pasture and 200. acres of Wood with their Appurtenances in Horsham aforesaid And so seised the said Prior with the assent of his Covent by their Deed indented shewn forth bearing date the first day of Ianuary 13 E. 4. and by licence of the King aforesaid granted to William then the Master of the Hospitall of St. Giles in Norwich and to the Brothers of the same Hospitall and to their Successors 200. Fagots and 200. Focalls called Astle-wood yearly to be taken of all the Lands and Tenements of the said Prior and Covent in Horsham aforesaid by the Servants of the said Prior and Covent and their Successors yearly to be carried to the said Hospitall at the costs and expences of the said Prior and Covent and their Successors at the Feast of St. Michael or 20 s. of lawfull money for them at the election of the said Master and Brethren and their Successors to take yearly in the same Lands and Tenements in Horsham to the use of the poor and infirm persons there being or coming So that if it happen the said Fagots and Focalls or the said 20 â— for them to the said Master and Freres in form aforesaid to be arrear in alâ—o part c. then they may distrain in the said Lands and Tenements and the Distresse detain until they be fully satisfied of the said Fagots and Focals or of the said 20 s. for them as is aforesaid with this Proviso further That if at any one or more times the said Master and Brethren have chosen to have the Fagots and Focals yet at any other time they make the 20 s. for them and although they have taken the 20 s. for them once or oftner yet at any other time they may take the Fagots and Focals themselves and that they may so vary tâ—ties quâ—ties and dâ—strain for them accordingly reasonable notice being given of their Election in form aforesaid And the said Master and Brethren granted by the same Deed to the said Prior and Covent and their Successors that they or others sufficiently warranted by them would give sufficient notice of their election yearly the first Sunday of April in the Church of the said Hospital to some Officer of the said Prior and Covent and their Successors if they send any thither for this cause By force of which Grant the said Master and Brethren were seised of the said yearly rent of the said 200. Fagots and 200. Facals called Astlewood accordingly and so being seised they by their sufficient Writing enrolled of Record in the Chancery in the first year of the late King Ed. 6. gave and granted to the same King the said Hospitall all the Lands Tenements and Hereditaments of the said Hospitall To have and to hold to him and his Heirs and Successors for ever wherby the said King was therof and of the said annuall Rent seised accordingly and so seised the 7. day of May in the same year the said King Edw. by his Letters Patents bearing date the same day and year granted the said Hospitall and the rent of the said Fagots and Focals and other the Premisses to the Major Sheriff Citizens and Commons of the City of Norwich and to their Successors for ever and for 1600. Fagots and 1600. Focals of the said annuall rent of 200. Fagots and 200. Focals being arrear at the Feast of S. Michael the Arch-angel 23 Eliz. the said Ward took the Distresse and made Conusance as Bailiff to the said Major Sheriff c. And it was moved that the Avowry was not good first because it being matter of Election which was granted to the Master and Brethren and their Successors to wit the Fuell or the 20 s. it doth not appear that they ever made any election of the one or the other and untill it appeareth that they have
another 20. H. 6. 15. And a scilicet is but an Exposition of that which is once before and it shall not destroy the precedent matter but if it be contrary to it it is voyd Co. lib. 5. Knights case A scilicet shall not make an alteration of that which went before 15. Jac. B. R. Desmond and Iohnsons Case In a Trover and Conversion the Plaintiffe declared that he was possessed of the said goods 1 Jan. 15. Jac. and that Postea scil the first day of May hee in the yeare aforesaid lost them and that they came to the hands of the Defendant and upon issue joyned it was found for the Plaintiffe and this was moved in arrest of Judgement and by the Court the scil was agreed to be void and the Postea good and the like case was 17. Jac. in Debt The second Question is a man makes Conusance for Rent for him in remainder in taile and does not alledge the precise time when the Lessee for life died but onely that he died and I conceive that it is well enough 1. Because an Avowry which is in lieu of an action is a reall action and in reall actions no precise day need to be alledged 2. Because he avows for 4 s. rent due and the arreare to the remainder which implies that the Lessee for life is dead See 14. Eliz. Dyer The case of a person in one Arundalls case a man was Lessee for ninty years if the Lady Morley should so long live in an action brought by him as Lessee for years in his Declaration he did not averre that the Lady Morley was alive and yet awarded good Trin. 12. Jac. in Hord and Paramores case the defendant avowed as Heir of Sir John Arundell and alledged no time incertaine of the death of Sir John Arundell and yet awarded good for the reason aforesaid and therefore he prayed Judgment for the Avowant The same Terme in the same Court. Jenkin versus Vivian IN trespas Jermy for the Plaintiff took some exceptions to the Plea of the Intr. Hill 1. Car. Rot. 331. Defendant 1. That the Defendant claim common in Trigemore Moore ratione Vicinagii and doth not say a tempore cujus contrarium memoria hominum non existit 2. The Defendant alledgeth that he and all his Occupiers of Down-close had used to have common in the said Tridgemore Moore c. whereas he ought to have shown what estate they had in Down-close who have used to have this coÌ„mon Rol. there néed no prescriptioÌ„in this case no more then in a coÌ„mon appendant which case of a coÌ„mon appendaÌ„t was agreed by the whole Court for it is mixt 6. E. 4. 55. Co. lib. Intr. 625. tit trespas For the 2. exception I agree that if it be by way of prescription then it is not good as it is alledged here but if it be by way of custome as here it is then it is good for a custome goes to Land and a Prescription to persons Hill 11. Jac. Higgs brought an Action upon the Case for erecting of a new Mill and alledged a Custome that he and all the Inhabitants c. an exception was taken to it and it was there ruled that it was good because alledged by way of custome Co. lib. 6. Gatewards case and also Mich. 14. Jac. it way be alledged by way of custom as our case is and 15. E. 4. when it is by way of discharge it may be alledged in all Occupiers Jermy for the Plaintiff It cannot be a custom here for as it is in 23. Eliz. Dyer A custom cannot extend to a particular place and this was agreed by the whole Court But there is another exception he clayms common in Tridgemore Moore for cattle levant and couchant in Down-close and does not aver that these beasts were levant and couchant upon Down-close and per totam Curiam this ought to be averred and it was also agreed that in this case he ought to have prescribed But for the exception of all occupiers it was doubted but for the other exceptions Iudgment was given for the Plaintiff The same Term in the same Court. Chambers Case IT was said in this case that in debt upon a Recognizance acknowledged in Chancery or in any other Court the Defendant cannot demand Oyer of the condition for the Recognizance is not in Court as an obligation is when debt is brought upon it But if Debt be brought upon a Recognizance acknowledged in this Court then the Defendant may demand Oyer of the Recognizance The same Term in the same Court Harison versus Errington IN Error to reverse an Inditement of rescous and Riot taken in the County Palatine of Durham Bankes assigned the Errors whereof one was therâ— was a Warrant to three conjunctim divâ—sim to arrest the sayd Harison and two of them arrest him and therefore the Arrest was not well done for it ought to have been by one or all three and the reason is because it is a ministeriall act otherwise if it had been a judiciall act 14. H. 4. 34. 2. The Inditement of Riot was against three and the Iury found only one of them guilty of the â—â—â—ot this is a voyd verdict for one alone cannot make a riot like to the case in 11. H. 4. 2. Conspiracy against two and only one of them is found guilty it is voyd for one alone cannot conspire And at another day in the same Term Noy took other exceptions 1. Because the Inditement is Jurator pro Domino Rege presentant c. and doth not say that 12. Iurors presentant and peradventure but 11. did present 2. The names of the Iurors ought to have been certified for peradventure they are not probe legales homines but Villains and Outlawes 15. H. 4. 41. 3. It is sound that Rolson the Sheriff by vertue of a Writ directed to him came c. and upon this rescous was made by Harrison c. and it doth not appear what manner of Writ it was scilicet Elegit Capias ad satisfaciend on c. and if there were no Writ there can be no rescous and albeit he had a Writ yet if execution were done by vertue of another Writ which he had the Party may disobey it as if upon an habere facias seisinam the Sheriff makes a Warrant as upon a Capias the party is not bound to obey the Bayliffe if hee bee not a Bayliffe knowne but in case it appeares they were only Bayliffs pro hac Vice Nota that an Inditement before Coronâ—rs which found that the Earl of B. was felo de se was quasht because it did not appear that it was per sacramentum probor legal hominum And in the case of Sarum this Term an Inditement was quasht for the same cause The same Term in the same Court. Rochester versus Rickhouse IN a writ of Error to reverse a Judgement given in Ejectione firmae in Newcastle Banks assigned these errors 1. The Plaintiffe declares of