The question was whether they have an estate for life or an inheritance in taile And it was resolved that if they had children at the time of the Demise made then they had but an estate for life But if they had no children then they had an estate of inheritance in taile Sir Edward Cleeres case 42. Eliz. fol. 17. A Man is seized of three acres of Land houlden in Capite and maketh a Feoffment in Fee of two of them to the use of his wife for her life and after maketh a feoffment by Deed of the third acre to the use of such persons and of such estate and estates as he should limitt and appoint by his last Will in writing And afterwards by his last Will in writing hee Devised the said third acre to one in fee and if this Devise was good for all the third acre or not or for two parts thereof or voyd for all was the question And it was adjudged that the Devise was good For the Feoffor by his last Will limitted the estates according to his power reserved to him upon the Feoffment the estates should take effect by force of the Feoffment and the use is directed by the Will So as in this case the Will is onely directory But if he declared his Will by writing without any reference to his authoritie or power as owner of the Land and to limitt no use according to his power In this case the Land being houlden in capite the Devise is good for two parts and voyd for the third part If a man make a Feoffment in Fee of Lands in capite to the use of his last Will although he Devise the Land with reference to the Feoffment yet the Will is voyd for a third part for a Feoffment to the use of his last Will and to the use of him and his heires is all one In this case when the partie had conveyed two parts to the use of his wife by his act executed hee cannot as owner of the Land Devise any part of the residue by his Will and therefore because he hath not an election as in the case put before whether to limit according to his power or Devise the same as owner of the Land for in the case at Barre as owner of the Land having conveyed two parts to the use of his wife he cannot make any Devise The Devise of necessitie must inure to a limitation of the use otherwise the Devise should be altogether voyd Packmans case 37. Eliz. Banco Regis fol. 18. WIlson brought an action upon the case upon a trover against Packman The case was thus A man dyed intestate and the Ordinary committed the administration to a stranger and after the next of kindred of the Decedent sued out a Citatiō in the Court Christian to have it repealed and pendente lite the administrator to defeate the plaintiffe selleth the goods of the decedent to the defendant and after the Letters of administration were revoked by sentence and the first sentence anulled and made voyd and the administration granted to the plaintiffe And it was resolved that the action did not lie and in this case the diversitie was houlden betweene a suite by Citation for to countermand or revoke the former administration and an appeale which is alwayes a reversing of a former sentence for an appeale doth suspend the former sentence otherwise of a Citation And in this case because the first administrator had the absolute propertie of the goods in him without question he may sell them to whom he will and although the administration be revoked afterwards yet that cannot defeat the Sale But if the sale or gift be by covine it is voyd against Creditors by the Statute of 13. El. but it is good against a second administrator And if an administrator wast the goods and afterwards the administration is granted to another yet every debtor shall charge him in debt An administration may be granted upon condition and whatsoever the administrator doth before the condition broken is good Gregories case 38. El. Banco Regis fol. 20. VErba aequivoca in dubio posita intelliguntur in digniori potentiori sensu secundum excellentiam as if the speech be or writing of J. S. generally it shall be intended of the father where the father and sonne are both of a name and if it be of two Brothers both of a name it shall be intended of the eldest for these are more worthy so where the Statute of 4. 5. Phil. Ma. speaketh in any Court of Record it shall be intended of the foure Courts at Westminster because the Kings Attorney is attendant there Michelbornes case 38. Eliz. Banco Regis fol. 21. THe Court of Marshalsea doth onely hould plea of actions of trespasse within the verge if the one of the parties be of the Kings houshold and in contracts and Covenants where both parties are of the Kings houshold and of none other actions nor persons by the Act of Articuli super Chartas 28. E. 1. Butler Goodalls case 40. El. Banco Regis fol. 21 IT was resolved upon the Statute of 21. H. 8. that a Parson of a Church ought to stay and be Commorant upon his Rectorie viz. upon the Parsonage-house and not in any other house although it be within the Parish but lawfull imprisonment without covine is a good excuse of non-residence also if there be no Parsonage-house for impotentia excusat Legem also sicknesse without fraud if the patient remove by advice of his Councell in Physicke bona fide for better aire and recovery of his health Ambrosia Gorges case 40. El. fol. 22. in Cur. Wardorum IT was resolved that the Father shall have the Wardship of his Daughter and heire apparent so long as shee continueth his heire apparent But when the Father hath issue a sonne then shee shall be in ward to the Queene for then he is heire apparant and not the Daughter Ambrosia was daughter of Sir Arthur Gorge by Douglas Daughter and heire of Vicount Bindon and was married to Francis Gorge which Francis dyed when Ambrosia was of ten yeares of age It was resolved also that the Queene notwithstanding the said marriage should have the Wardship of the said Ambrosia for it was not a compleat marriage because to every marriage there ought to be a consent For consensus non concubitus facis matrimonium consentire non possunt ante annos nubiles And upon conference had with the Civilians it was agreed after such a marriage if the husband and the wife marry again it shall not be counted Bigamie And 30. E. 1. tit Gard. 156. if the ancestor marry his heire infra annos nubiles and dye the Lord shall recover the body of the Infant because the heire may disagree It was agreed that the grandfather shall not have the wardship of the sonne within age the father being dead in his life time Marquesse of Winchester his case 41. Eliz. fol. 23.
land of M. was lost by the Statute of 4. and 5. P. and M. ca ' 8. Resolved that there were two manners of custodies or Gardianships the one by the common law the other by the Statute at common Law foure manner of Gardians viz Gardian in Chivalry Socage Nature by Nurture The first two are fully described in our Bookes but great controversie was at barre for Gardian by Nature Some held that the Father onely shall have the custody of his sonne and heire apparent within age not the Mother Grandfather c. Also that the Father shall not have the custody of his daughter and heire for it ought to be such an heire as shall continue sole and apparent heire as the Father shall not have the custody of the youngest sonne in Borough English for tenure in Chivalry Others affirme that not onely the Father but every auncestor male or female shall have the custody of his heire apparent male or female Trespas quare 〈◊〉 consanguinium haeredem of the plaintiffe cujus maritagium ad ipsum pertinet c. rapuit c. lyes The Mother though she had no land brought ravishment of ward of J. her Sonne and heire against the grandfather who had land that might descend By the Court both erre for 't is true that every auncestor shall have trespas or ravishment of ward against a stranger for his heire male or female and the Writ shall say Cujus maritagium ad ipsum pertinet and good reason for the establishment of his house consists upon providing of a convenient marriage for his heire apparant and it matters not of what age such heire is but such action lyes not against gardian in chivalry by any of his auncestors but the Father So the Court resolved here the Mother could not be gardian in Socage if the land had descended to the daughter nor by nurture because she was above 14. but the common Law gives remedy against a Stranger as aforesaid Resolved here the Mother shall have the custody within the provision of the Act which hath ordained two new manners of custodies 1. By reason of nature 2. By assignation the first the Father after his death the Mother the second by assignation of the Father by his will or any act in his life See the Booke at large for the exposition of this Statute Resolved that the assent of the husband was not materiall for the Statute hath annexed the custody to the person of the Mother jure naturae which is inseperable and by marriage cannot be transferred to the husband the Father shall not forfeit the wardship by outlawry nor shall his Executors have it Resolved though she departed out of the house sixe houres before the contract yet in judgement of Law the Mother had the custody at the time of the contract for 't is inseperably annexed to the person of the Mother Resolved that by this devise the two daughters wete tenants in common in taile by these words equally to be divided though they never make partition in facto and so it hath been often adjudged Resolved that the husband and wife damsell had good title upon this verdict against the other daughter for by these words to the next of kin to whom the inheritance should c. come after her decease during the life of such person who shall so contract c. it seemes the daughter shall not have the forfeiture for though she be of the blood yet if M. dye her issue shall have the land if without issue the Mother in the remainder To the objection that the Mother cannot have it for she is not of the blood of the daughter but econtra Father or Mother are not next to whom administration shall be granted and land shall escheate rather then it shall goe to Father or Mother Resolved often against 5. E. 6. that the Father or Mother are next to whom administration may be granted and Littleton says that the Father is neerer of blood then the Uncle and therefore the Father shall have a remainder limitted to the next of blood of the Sonne but he shall not have an inheritance by discent from the Sonne for a Maxime prohibits it And 't was said at barre if he in reversion had been brother of the halfe blood he might have entered as Proximus de sanguine yet none of the halfe blood could inherit See the Booke at large where is excellent learning of discents as also the learning of Possessio fratris c. Resolved by the Court that it doth not come in question who shall enter for the forfeiture by the Statute for the issue was joyned upon a collaterall point whether the Mother had the custody at the time of the contract and the finding of the Jury is not materiall and therefore though the Plaintiffe who was lessee of the husband of the damsell as appeared had good title against the defendant being lessee of the husband of the other Sister yet because the issue was found against him judgement was given Quod nihil capiat c. Boytons case 35. Eliz. in Banco regis fo 43. A Writ of cap ad satisfaciendum is retornable at Westminster die Lunae prox post Crastin Animarū the partie is arrested the Sheriffe is not bound to bring the prisoner in recta Linea from the place where he was arrested or from the Countie But if he have the prisoner in Court at the day of the returne being never out of his custody in the meane season it is good But if a Sheriffe or a Bayliffe assent that one who is in execution and under their custody to goe out of the Gaole for a time and then to returne yet although he returne at the time it is an escape And so it is likewise if a Sheriffe suffer him to goe with a Bayliffe or a Keeper for the Sheriffe ought to have him in arcta custodia the Statute of Westminster 2. cap. 11. says Quod carceri manucipentur in ferris So as the Sheriffe may keepe him in yron and fetters to the intent that they may sooner satisfie their Creditors The Sheriffe upon a Habeas corpus for one in execution may bring the partie what way he will so as he have his bodie at the day according to the Writ If one in execution escape out of the Gaole and fly into another Countie the Sheriffe upon fresh suite taketh him again before any action brought against the Sheriffe the Judges have adjudged this no escape and if one in execution escape de son tort and be taken againe he shall never have an audita querela because a man shall not take advantage of his own wrong Sir George Brownes case 36. of the Queene fo 50. ISsue in speciall taile the remainder to himselfe in fee in the life of his Mother tenant in speciall taile levies a Fine in truth with Proclamations though they were not found to Sir G. B. the Mother living the Sonne leased for three lives
Baspoles Case 7. Jac. fo 97. F. And B. put themselves in Arbitrament for all demands Suites so as the aforesaid award be delivered in Writing c. at the Feast of Saint James the Arbitrator awards that B. shall pay 22. l. to F. B. refuseth to pay F. brings Debt upon the bond to stand to the award and good 1. Resolved that the award was of both parts for the one was to pay money and the other to discharge the Debt 2. Resolved that whereas the Plaintiffe saith that the award was made De premissis which untill the contrary be shewed shall be intended of all when the submission is generall an award of part is good for otherwise the parties may conceale one thing and make the award void but if it be of diverse things in speciall Ita quod arbitrium fiat de premissis an award of part is voyd but good without such conclusion so if two of one part and one of the other part submit themselves arbitrament betweene one of the one part and another of the other part is good Sir Richard Lechfords Case fo 99. TEnant by copy in fee where there is a custome that the heire after the death of his auncestor within three Courts and Proclamations made shall be barred if he claimed not dyes his heire beyond the Seas untill three Courts and Proclamations passe and returnes and claimeth to be admitted he is not barred no more then by Non-claime upon a fine Ergo this custome shall be construed if he be within the realm of full age c. but if he goe over the seas after the death of his auncestor he shall be barred as in case of a fine 2. Resolved although he was not in the Kings service this is not to the purpose because by intendment he cannot have notice But a Mulier puisne over the Seas shall be barred by the dying seised of the Bastard Eigne for the right of the Mulier is barred and the Bastard is made Mulier although that a discent of the disseisor of a rent or thing which lyeth in grant barreth not the disseisee yet if a Bastard eigne dye seised of it this barres the Mulier If two Daughters whereof one is a Bastard eigne enters and dyes before or after partition the Mulier is barred Otherwise if two Daughters and one of them had no collour of partition if Bastard eigne dye in the life of his Father having issue who enters after the death of the Father and dyeth seised having issue Quaere if the Mulier be barred mulier is barred by discent before entry of the Sonne of the Bastard eigne as if issue be in Ventre sa mere or the Wife of the Bastard indowed John Talbots Case 7. Jaco in Second deliverance fo 102. LOrd and Tenant by Homage Fealty and Herriot service of 50. acres the Tenant infeoffeth the Lord of three acres and after infeoffeth the Plaintiffs father of three other acres parcell c. who dieth the Lord distreineth for Herriot the Plaintiffe brings replevin and good 1. All intire services to render an intire Chattell of profit or pleasure by alienation of part shall be multiplied and by purchase of part by the Lord extinct 2. Personall services for the publique good which are intire as Chivalry Homage and Fealty shall be multiplyed and not extinct 3. Other personall services as Butler Sewer c. shall not be multiplied but shall be exinct So of a personall office and mannuall labour 2. There is no diversity betweene an intire Chattell be it annuall or not as if it be to render a Horse every five yeare by purchase of part it shall be extinct 3. If the Father of the Plaintiffe had been first infeoffed and then the Lord the Herriot had remained because there the Father of the Plaintiffe held by a severall Herriot before the Lord was infeoffed 4. But Herriot custome by purchase of part is not extinct Doctor Bonhams Case 7. Jacobi fo 114. THe President and Censors of the Colledge of Physitians in L. by colour of Letters Patents of H. 8. and the Statutes of 14. H. 8. and 1. Mar. fined and Imprisoned Doctor Bonham for practising of Physicke in L without their allowance the fine to be paid to them and also for contempt made to the Colledge whereupon he brings false imprisonment and adjudged for the Plaintiffe 1. Whither a Doctor of one University or other be within the act 2. Admitting that he is whither he be within the exception in 14. H. 8. Justice Daniell held that such a Doctor was not within the body of the Act and if he were yet he is within the Exception but Warburton econtra for both points Cooke spake not to them but they all agreed that the Action was maintainable for two other points 1. Whither the Censors have power to fine and imprison 2. Admitting that if they have pursued it The Censors have no power in this case to imprison the Defendant for they have no power to punish by fine and Imprisonment those who practise without their license but those practisers who misadminister physick 1. Because the clause that none shall practise without their License and the clause which giveth to them the said power are distinct clauses 2. The first clause imposeth another penalty and 5. l. every moneth that he practiseth but leaveth the evill administration of Physick to be punished by the Colledge because this is uncerteine 3. To make one punishable by the first Branch he ought to practise by a moneth otherwise it is by the second 4. By this way they shall be both Judges and parties in one cause 5. If Doctor B. shall be punished by 5. l. by the moneth and also at their pleasure he will be often punished for one offence 2. Admitting that they had power yet they have not pursued it 1. Because the President who hath no power joyned with them 2. The fine was imposed for not appearing before the President and Censors and the President had no power 3. Halfe of the fine belongs to the King and here all is to be paid to them 4. The Imprisonment ought to be presently as upon the Statute of W. 2. cap. 12. 5. their authority being by Patent and Statute their proceedings ought not to be by Paroll and the rather because they claime authority to fine and imprison 6. It shall be taken strict because against the liberty of the Subject therefore before 1. Mar. the Gaoler was not bound to receive them and this doth not inlarge their power but that the Gaoler shall forfeite double the Amerciament if he refuse Admitting the replication void although that the Colledge demurre upon it yet the Plaintiffe shall have judgement because in the barre the Defendants have shewed that they have imprisoned him without cause for upon all the pleading it appeareth that he had cause of action but if a barre be insufficient and by the replication it appeares that the Plaintiffe had no cause
accordingly and if no request be made and the Feoffee or Grantee that ought to performe the condition dye the condition is broken Yet this generall rule admits an exception for here in case of an advowson he hath not time during his life though no request be made but upon contingency to wit if no avoydance fallin the meane time for if the Grantee stay till the avoydance fall Ipso facto the condition is broken for B. cannot have all the presentations during his life which was the effect of the grant and the Advowson is come into another plight then t was But where the day is certaine for the performance and the party dye before the condition is discharged because the performance is become impossible by the Act of God and therefore when a day certaine is appointed t is good that the Heire of the feoffee be named in the condition Another diversity was also agreed when t is to be performed to a stranger he ought to request the stranger in convenient time for to limit a time when it shall be done but if it be to the Feoffor himselfe he ought not to performe it before request Another diversity was taken by some when the feoffee dyes and when the feoffor dyes for in the one case the condition is broken in the other not Binghams Case 43. of the Queene fo 91. R. Bingham the Grandfather held the Mannor of B. M. of Sir Jo Horseley as of his Mannor of H. and levyed a fine to the use of him and his Wife for life and after of R. the Father his Sonne and Heire in taile and after to the right Heires of the Grand father R. the Father dyed the remainder in taile discended to R. his Sonne within age Sir I. H. suffered a recovery of the Mannor of H. to the use of himselfe and his Wife in taile and after to Sir R. H. his Sonne and Heire in taile after to the Heires of Sir I. Sir I. and his Wife dyed without issue Sir R. enters R. B. the Grandfather dyes by which the reversion in Fee discended to R. B. the Wife of Robert dyes R. within age enters and Leases c. Resolved that the use limitted to the right Heires of the Grandfather upon the fine is a reversion in the Grandfather expectant upon the taile not a Remainder so t was resolved in Fenwick and Mitfords Case and so t was resolved in the Earle of Bedfords Case Resolved that Sir R. H. shall not have the ward of the Land for the reversion in Fee is holden of him and not the Taile though both discend from the same Ancestor for the taile cannot be drowned and if Tenant in taile grant over the reversion he shall hold the Taile of his Grantee and though the Seigniory of the taile be suspended yet the Donee hath two distinct estates and the reversion is as a Mesne betwixt the Donee and the Lord and the Lord is not defeated for the Law gives no wardship in such cases and if it were admitted that by the unity of Tenure betwixt the Donee and reversion t was determined yet nothing shall be holden of the Lord but the reversion and in some cases the Donee in taile shall hold of no body as a gift in taile the remainder to the King Resolved if the Grandfather were Tenant for life the remainder to the Father in taile the remainder to the Father in fee the Father dyes his Heire within age and Sir I. H. grants the Seigniory to Sir R. H. and the Grandfather dyes that Sir R. H. shall not have the ward of the Heire because R. the Father did not hold of him nor any of his Ancestors the day of his death nor the Taile was not within the see and Seignory of Sir Ra. or any of his Ancestors at the death of R. the Father and the Writ saith Praecipe c. Eo quod terram illam de eo tenuit die quo obijt And though that during the life of Tenant for life the Heire of the remainder shall not be in ward because Tenant for life is Tenant to the Lord yet the death of Tenant for life is not the cause of ward but the removing of an impediment as in Paget and Caries Case Tenant for life commits wast and after Tenant for life in remainder dyes he in remainder in fee shall have wast T was said when two accidents are required to the consummation of a thing and the one happens in the time of one and the other in the time of another neither the one nor the other shall have benefit by it as the Tenant ceases for a yeare the Lord grants his seigniory and then the Tenant ceases for another yeare neither shall have a Cessavit which was agreed So Lacies Case Trin. 25. of the Queene who gave a mortall wound upon the sea of which the party dyed upon the Land yet he was discharged because the stroake was upon the Sea the death upon the Land so that neither the Admirall nor a Jury can inquire of it and t was said when diverse accidents are required to the consummation of a thing the Law more respects the Originall cause then any other A man presents to a Church in time of Warre notwithstanding the party be instituted and inducted Tempore pacis all is voyd So the Law more respects the death of him in the remainder the Originall cause of wardship then the death of Tenant for life which is but Causa sine qua non and rather a removing of an impediment then a cause so t was resolved that neyther the one nor the other shall have the ward Resolved that Sir Ra. should not have the third part of the Land by 32. 34. H. 8. for though R. the Grandfather had limitted the use to the Father which is within the Statute yet when R. the Father dyes in the life of the Grandfather the Statute extends no further for the Heire of the Father who is in by discent shall be in ward by the common Law not by the Statute and if the Statute should extend to the Son and Heire of him in remainder by the same reason it should extend to all the Heires of him in remainder In infinitum THE THIRD BOOK The Marques of Winchesters Case 25. of the Queene fo 1. LIonell Norris and Anne Mills were seised of the Mannor of M. and to the heires of the body of L. a common Recovery is had against L. without naming Anne H. Norris being in remainder in taile is executed for Treason and 't is enacted that he shall forfeit Mannors c. uses possessions offices rights conditions and all other hereditaments L. dyed without issue Anne dyed the Queene brought error against the Marques of Winchester heire of the survivor of the recoverors the error was that the originall Writt of entry wants the defendant pleaded that 14. of the Queene shee gave and restored to the Lord Norris Sonne and heire of H. Norris
the husband had and to the remainder A. tenant in taile the remainder to B. the remainder to C. the remainder to D. A. makes a Feoffement the feoffee suffers a recovery B. is vouched and he vouches the common vouchee A. is not bound but B. and all the remainders are for though the remainders are discontinued and cannot be remitted till the taile be recontinued yet in a common recovery which is the common assurance he which comes in as vouchee shall be in judgement of Law in privity of the estate which he ever had though the precedent estate upon which the estate of the vouchee depends be discontinued so here the husband shall be said in of the taile and 't is the stronger because the estate of the wife was put to a right so that the husband came in as sole tenant in taile and not joyntly with his wife because she is not vouchee and he cannot be in of another estate because once he had a taile but had they had a joynt estate to them and the heires of their two bodies he being onely vouched it might be doubted whether the taile should be barred because the wife had a joynt inheritance with him 8. of the Queene Dyer Knivetons case A Praecipe is brought against tenant for life and the remainder in taile they vouch over it shall not binde the taile for the remainder is not tenant to the Praecipe and the land is recovered against the tenant for life onely and recompence shall not goe to the remainder and the remainder was never seised by force of the taile and so 't was adjudged in Leach and Coles case 41. of the Queene Heydons case 26. of the Queene fo 7. THe Gardians and Cannons Regular of the late Colledge of O. seised of the Mannor of O. granted a Coppihold to Father and Sonne for their lives c. and after they leased it to H. for fourescore yeares rendring the ancient Rent and after surrendred their Colledge Resolved that the lease to H. was voyd the Coppi-hold for life continuing by the Statute of 31. H. 8. For Coppihold is an estate for life and the Statute saith of which any estate or interest for life c. at the making of such grant had continuance reade the Booke at large where you have admirable rules for true interpretation of all Statutes Resolved when a Parliament alters the service tenure interest of the land c. in prejudice of the Lord custome or tenant the generall words shall not extend to Coppi-holds as the Statute of W. 2. de donis conditionalibus doth not extend to them for if the Statute should alter the estate this should also alter the tenure for the donee ought to hold of the donor and to doe such services without speciall reservation as his donor did to the Lord and the intent of the act was not to extend to such base estates which were taken then but tenants at will and the Statute saith Voluntas donatoris observetur in carta c. So that which shall be intailed ought to be such an hereditament which may be given by Charter and great part of the land within the Realme being granted by Coppy it would be inconvenient that Coppi-holds should be intailed yet neither Fine nor Recovery should barre them so that the owner cannot without making a forfeiture by assent of the Lord and a new grant dispose of it for payment of debts advancement of his wife or younger issues wherefore the Statute doth not extend to them by Manwood Ch' Baron which the Court agreed But 't was objected that the Custome and the Statute cooperating might make a taile as if by a custome a remainder had been limitted over and injoyed and plaints in nature of a Formedon in discender brought and the land recovered by it so neither the custome without the Statute nor the Statute without the custome can make a taile And Littleton saith that if a custome hath been that lands c. have been granted c. or in taile c. paulo post that a Formedon in discender lyes of all tenements which Writ was not at common law Manwood answered if the Statute doth not extend to them without question the custome cannot for before the Statute all estates of inheritance were fee simple and no custome can commence after the Statute for this being made 13. E. 1. is made within time of memory and Littleton is to be intended of a fee simple conditionall for he knew well that no custome could commence after the Statute of W. 2. as appeares in his booke 2. ca. 10. and 34. H. 6. and a Formedon in discender in speciall cases lay at the common Law And by the Court another Act made at the same time which gives an Elegit extends not to Coppiholds for the reason aforesaid but other Statutes made at the same time extend to them as ca ' 3. which gives a Cui in vita receite and ca ' 4. which gives to the particular tenant a Quod ei deforceat Resolved that though 't was not found that the said rents were the usuall rents accustomed to be reserved within 20. yeares before yet because 't was found that the accustomed rent was reserved and a custome goes to all times before it shall be so intended without shewing the contrary and judgement was enterd for the Queene The common Law is founded upon the perfection of reason and not according to any private and sudden conceite or opinion Borastons Case 29. of the Queene fo 19. B. Devised land for eight yeares and after to his executors to performe his will till H. his youngest Sonne come to the age of 21. yeares and when H. comes to 21. yeares then that he shall have to him and his heires H. dyed at the age of 9. yeares Objected that till H. attaines to 21. yeares the land descends to the heire and for that he never attained to 21. yeares this remaines in the heire and the intent appeares by the words that he should not have till he come to 21. yeares and this ought to precede the commencement of the remainder and if land were leased till H. comes to 21. yeares H. then being of 9. yeares 't is no absolute lease for 12. yeares for if H dye before 21. the lease shall be determined which the Court agreed 'T was also said that when the particular estate which should support the remainder may determine before the remainder can commence there the remainder doth not vest presently but depends in contingency If one make a Lease to A. for life and after the death of B. the remainder to another in Fee this remainder depends upon contingency for if A. dye before B. the remainder is voyd A Lease is made to A. for life the remainder to B. for life and if B. dye before A. the remainder to C. for life this is a good remainder upon contingency If A. survive B. which case is all one with
Deed to the Court the plaintiffe may pray it to be entred in haec verba the same Terme but not after Pagetts case 35. El. in communi banco fol. 76. IT was resolved that if tenant for life the remainder for life the remainder in fee if tenant for life maketh wast in trees and after he in remainder for life dye an action of wast is maintainable for the wast done in the life of him in remainder for life because it was to the disinheritance of him in remainder in fee. And now the impediment which was the meane estate for life is taken away Et remoto impedimento emergit actio It was resolved that when the trees are cut downe the property thereof belongeth to him in remainder in fee. And where it is said in some Bookes That he in remainder or reversion in fee shall not have an action of wast it is to be intended during the continuance of the meane remainder And in other Bookes is said in this case that an action of wast doth lie it is intended after the death of him in remainder for life Boothes case 36. Eliz. in communi Banco fol. 77. GEeorge Booth brought an action of wast against Skevington and declared that Sir William Booth demised for yeares to Ensor who assigned to Skevington The defendant pleaded an assignement to Elizabeth Cave before which assignement no wast was made the plaintiffe replyed and shewed the Statute 11. H. 6. ca. 5. and that the grant to Elizabeth Cave was made to the intent he should not know against whom to bring his action and averred that Skevington did take the profits the defendant rejoyned that Elizabeth Cave granted her estate to A. who demised to the defendant at will and traversed the fraud c. the plaintiffe demurred it was resolved that every assignee of every Lessee mediatly or immediatly is within the said act for the Statute was made to suppresse fraud and deceipt and therefore it should be taken most beneficially Secondly that he in remainder is within the said act as well as he in reversion Thirdly the intent of fraud aforesaid is not traversable but the taking of the profits which is a thing notorious whereof the Country may have knowledge In a formedon the tenant pleaded Non tenure the demandant said that he made a Feoffment to persons unknowne to defraud him of his tenancy and to keepe the profits the pernancy of the profits and not the Feoffment is traversable Samons case 36. Eliz. Banco Regis fol. 77. THe plaintiffe and defendant referred all controversies to the Arbitrement of J. S. who did arbitrate that the defendant shall enter into an obligation to the plaintiffe that the plaintiffe and his wife shall injoy certeine lands which he had not done this is voyde for the incerteinty of what summe the obligation shall be for the award ought to be certeine like a Judgement Also the award was voyde as to the feme for she was a stranger to the submission Grayes case 37. Eliz. Banco Regis fol. 78. Replevin THe plaintiffe intitles himselfe in barre to the avowry to Common c. which was traversed the Jury found that every c. time of minde have used to pay for the Common a henne and five egges the plaintiffe had Judgement for he needs not shew more then makes for him for this is not Modus Communiae paying so much nor parcell of the issue but a collaterall recompence to be paid for the Common for which the Terretenant had remedy but if the Terretenant had no remedy then the Commoner shall have the Common sub modo and may be disturbed by the Terretenant Fitz-Herberts case 37. Eliz. Banco Regis fol. 79. THe father tenant for life the remainder to the sonne in taile leaseth for yeares to A. to the intent to barre the sonne A. infeoffeth J. S. to whom the father releaseth with warranty and dyeth this doth not barre the sonne for although that the disseisin which is made by the feoffment precedes the warranty yet because it was to that intent the Law will adjudge upon the intire act and so a warranty by disseisin 2. Although the disseisin was made to the father yet because he consented unto it the warranty commenceth by disseisin but if the father had made a feoffment in fee and dyed this shall binde the sonne if it be with warranty Foordes case 37. Eliz. Com' Banco fol. 81. A Prebend leaseth for 70. an Patron Deane and Chapter confirme dimissionem praedictam in forma praedicta fact ' for 51. yeares non ultra this is a confirmation for all the Terme for when they confirme dimissionem c. for 51. yeares it is repugnant but if they had recited the Lease and confirmed the land for 51. yeares this had been good for they have an authority coupled with an interest otherwise if onely a bare authority but by what words soever they confirme a lease for life or a gift in taile for part this is a confirmation of all because they are intire so if the estate of the disseisor or his lessee for life be confirmed for an houre yet all is confirmed Cases of Customes Snellings case 37. Eliz. Com' Banco fol. 82. S. Brings Debt upon an Obligation against an Administrator who pleads there is a custome in L. that an Administrator shall pay debts upon contract to a Citizen as well as upon Obligation and that J. S. upon a Contract had recovered and good 1. Resol Although that debt is given against an Administrator by the Statute of 31. E. 3. yet because they were charged as Executors before so that onely the name is changed the custome generally alledged is good 2. The ordinary by taking the goods was chargeable at the Common Law 3. This custome bindeth strangers The case of Markett overt 38. Eliz. fo 83. SHopps in L. are Marketts overt for things to be sold there by the trade of the owner therefore if plate be sold there in a Scriveners shop the property is not altered otherwise if in a Goldsmiths shop if he who passeth in the street may see it Nota the reason of this case extends to all Marketts overt in England Perimans case 41. Eliz. Com. Banco fol. 84. IT is a good Custome of a mannor that all sales of lands within that mannor be presented at the Court of the Mannor Obj. What remedy if the Steward will not accept the presentment Resp What remedy if the Clerke will not Inrolle a deede of bargaine and sale and therefore Caveat Emptor 2. Obj. That Interest is by the feoffment vested in the feoffee which shall not be devested by the Custome Resp That livery was ordained to give notice and a Custome which addeth more solemnity and notice is good Sir Henry Knivets case 38. Eliz. Banco Regis fol. 85. TEnant for life the remainder in fee leaseth for yeares the Termor is ousted the disseisor leaseth for yeares his lessee sowes the land tenant for life dyes he
personam The Lord cannot claime common in his owne soyle A diversitie was taken and agreed upon between a prescription and a custome a prescription is alwayes alledged in the person and a custome ought alwayes to be alledged in the Land for every prescription ought to have by common intendment a lawful commencement but otherwise of a custome for that ought to be reasonable and ex certa causa rationabili usitata as Littleton saith But it needeth not to have intendment of a lawfull commencement as custome to have Land Devisable or of the nature of Gavelkinde or Borough English These and such like customes are reasonable but by common intendment these cannot have lawfull commencement by grant or act or agreement but onely by Parliament and the custome in the case at barre was repugnant for it was alledged that the Custome of the Towne was that every Inhabitant had used to have common within a place in the Towne of H. which was another Towne Catesbyes Case 4o. Jac. fol. 61. SIx moneths being halfe a yeare semestre is given to the Patron of an advowson to present and according to the Kalander and not after 28. dayes to a Moneth and the Statute saith Si tempus semestre non transierit adjudicentur damna ad valorem c. per dimidium anni and being ambiguous it shall be construed for the benefit of the Patron Sir Moyle Finches case 4. Jac. Com. Banco fol. 63. THe Lady M. tenant for life of the Mannor of B. the remainder in fee to the Lady Finch shee and S. her husband and D. levyed a fine to one of the demesnes who grants and renders to D. for 50. yeares the reversion to S. and his wife and her heires with proviso in the Deedes which directed the fine that the reversioner shall enter and hould Courts And it was averred that this was knowne by the name of the Mannor of B. D. maketh his sonne of three yeares of age executor and administration was committed to R. T. S. and his wife levy a fine of all the lands of the wife in K. except the Mannor of B. to the use of the feme for life the remainder to Sir M. F. R. T. demiseth to P. L. for ten yeares Dame M. dyeth P. L. entreth by vertue of a power of revocation and limitation of new uses S. with the assent of the Lady F. his wife limitteth the uses to one who ousteth P. L. and maketh a feoffment to the use of the La F. for life the remainder to H. F. in taile P. L. reenters Dame F. dyeth H. F. for rent arreare distraineth 1. Resol By the grant and render of the demesnes the Mannor is destroyed because in an instant the services and demesnes are severed by act of the party but otherwise it is if by act in Law as upon partition so it is of an advowson appendant c. and upon partition many Mannors may be made of one but not by the act of the party 2. B. is excepted by the name of a Mannor 1. Because the intent of the parties is so 2. Exception of misnosmer shall not be favoured in Law 3. It is sufficient in Law in many cases that a thing be reputed as it is named as if a remainder be limitted to a Bastard by the name of sonne of J. S. and as to that was objected that this reputation is not time out of minde this needs not if it be of convenient time as this was for it was a Mannor revera before to levy a fine and continue the name after so that this reputation is stronger having such a ground and reputation serveth in Writts amicable although not in adversarie 3. The lease made by the administrator durante minori aetate is good because the administration is generall and not speciall to the benefit of the Infant but howsoever this is good during the administration 4. P L. in the life of the Lady M. had but interesse Termini so that attornement cannot be in his life but after the death of the La. Mo. by entry of the lessee the reversion is in S. and his wife without attornement because attornement needs not because the reversion is setled and he hath no meanes to compell c. otherwise it is where an attornement may be had and although that P.L. lessee of a lessee of part cannot make an expresse attornement yet his reentry shall be an attornement in Law so he who hath interesse termini may make a surrender in Law but no expresse surrender and a man of non-sane memory may make an attornement in Law but not an expresse attornement The Lord Darcies Case 4. Jacobi Com. Banco fol. 70. TEnder is not necessary to have the single value of the heire male or female but the heire female shall not forfeit the double value because the Statute of Merton is si se mavitaverit at the age of 14. yeares c. at which time the heire female is out of Ward and where by the Statute of Westm 1. cap. 22. it is provided that the Lord shal have two yeares to make a Tender it giveth not the double value but if he waive the two yeares he shall have the value without Tender quia de mero Jure c. Burrells case 5. Jac. Com. Banco fol. 72. IF the father make a lease by fraud and dyes the sonne sells the land knowing or not knowing of it the vendee shall avoyd it 2. If the father makes a lease to the sonne who assigneth it over by fraud the father dyes the sonne sells the land the vendee shall avoyd it Sir Drue Druries case 5. Jac. Cur. Wardor fol. 73. E. 1. granted to the Towne of Y. Quod omnes de villa oriundi licet terras c. extra libertatem villae c. te nuerint in Capite se maritare possint juxta libertates villae praedictae R. D. dyed seised of a house parcell of a Monasterie dissolved in the time of H. 8. houlden in Capite the King grants the wardship of his sonne to the plaintiffe and makes the Ward Knight the plaintiffe brings a valore Maritagij The Charter doth not discharge the defendant 1. Because it is juxta libertates villae praedict ' and the liberties are not shewed 2. This Charter cannot extend to a Tenure created in the time of H. 8. 3. It is not shewed that the defendant was borne within the Towne 1. Resol If the heire in Ward be made a Knight he is out of Ward for his body because by intendment he is able to doe Knights service otherwise if made a Nobleman 2. By the death of the tenant the value of the marriage is vested in the Lord and cannot be devested by Knighthood c. 3. If he be Knighted in the life of his auncestor he shall not be in Ward at all 4. If making of the heire in ward Knight shall devest the value it will be prejudiciall to the Subject and to the King for
from an auncestor a Subject but not where it discends from an auncestor who was King except in speciall cases 3. The issues of the King at the time of the levying of the fine are subjects therefore within the Statute and it seemd to them that there ought to be Letters Patents to give power to the Conisee to enter into the Land Nevills Case 2. Jacobi fo 33. THe dignity of an Earle intailed is forfeitable for treason 1. Resolved this is within the Statute of W. 2. De donis and experience is to give dignities in taile with remainders over also this was an office anciently and offices may be intailed 2. A dignity may be forfeited at the common Law by a condition in Law for the Office of Earle was Ad consulendum Regem tempore pacis defendendum Regem tempore belli therefore he forfeits it when he takes Councell and Armes against him 3. If it were not forfeited by the common Law yet it is by 26. H. 8. cap. 13. by this word Hereditament and the words use or possession which are added are to shew that every Hereditament shall be forfeited at the common Law Donee in taile had Potestatem alienandi post prolem suscitatam but if hee reteine the Land himselfe he hath no absolute fee for none shall inherit but the heire Per formam doni so it is now in case of annuity and other things out of the Statute Penall Statutes 2. Ja. fo 36. WHen a Statute is made by Parliament the King cannot give the penalty benefit or dispensation of the same to any Subject but the King may make a Non obstante to dispense with any perticular person that he shall not incurre the penalty of a Stature and the King after a forfeiture or penalty of a Statute by judgement and recovery may grant the same to any of his Subjects by way of reward and all the Judges of England subscribed to this the 8. Day of November 1604. Lillingstons Case 5. Jacobi fo 38. TEnant in fee grants a rent charge proviso that the person of the grantor shall not be charged the grantee acknowledgeth a recognizance according to 23. H. 8. and after releaseth to the grantor the conisee sueth an extent and brings debt against the grantor Terretenant 1. Resolved the rent is extendable for notwithstanding the release it is In esse as to the Conisee and cannot be discharged by the act of the Conisor also the extent relateth to the judgement at which time it was extendable See the Lord Aburgavenies Case in the sixth Report 2. Debt lyeth not so long as the extent indureth for so long the rent hath continuance although that by the release the freehold be determined if a rent charge be granted for life with proviso as above-said if the rent be determined debt lyeth against the grantor because he had no other remedy Bedels Case 5. Jacobi fo 40. R. B. Covenants in consideration of paternall love c. to stand seised to the use of himselfe for life the remainder to his Wife for life the remainder over 1. Resolv although the consideration in the deed runneth not to the Wife yet another consideration may be averred which stands with the Deed. The limittation of an use to the Wife importeth a consideration in it selfe so if it be to any of his blood but if he Covenant in consideration of a 100. l. to stand seised to the use of his Sonne nothing passeth untill inrollment Quia expressum facit cessare tacitum Beresfords Case 5. Jacobi fo 41. AN use is limitted to A B. and of the heires Males of the said A. lawfully begotten this is fee taile notwithstanding the words of the Body be wanting and that lawfully begotten are implied for no heire shall inherit who is not lawfully begotten Resolved that to create an inheritance the word Heires is necessary but the words De corpore are not necessary to make an estate taile if there be words which Tantamount and here the sence according to the intent of the Donor is of or by the said A. lawfully begotten A gift to a man haeredibus de se exeuntibus or Haeredibus suis de prima uxore sua are estates taile Kenns Case 4. Jacobi fo 42. C. K. had issue by E. S. M. K. and they are divorced and the Marriage sentenced void C. K. marrieth F. they have issue E. K. C. dyeth E. K. is found by office to be Heire M. and W. her Baron preferre a bill in the Court of wards to traverse the Office to which the Committees of the wardship answer one of the Committees dyeth M. and W. sue a Bill of Reviver and M. having issue E. dyeth E. her issue and R. her Baron bring a new Bill of Reviver 1. Resolved so long as the sentence stands in force the issue of the first feme is a Bastard because the spirituall Judge hath jurisdiction thereof and our Law giveth faith unto it Sentence of divorse may be repealed after the death of the parties but no divorse can be after their dearh for that will Bastardise the issue and the Court of the King hath triall of it originally not being hindered by any Sentence 2. The Plaintiffe shall not have a traverse without an office found for her for the King being sure of wardship shall not be ousted by one before that he be sure to have benefit by him and 2. E. 6. cap 8. doth not extend to give a traverse without office but if by two offices two are found Heires whereof one is within age by that Statute the other may traverse immediatly 3. A bill of reviver upon a bill of reviver shall not be suffered for the infinitnesse no more then a Writ by Journeys accompts By all the last bill was absurd which prayeth that the first bill be revived because M. was dead but it ought to be that her Heire may traverse The End of the Seaventh Booke THE EIGHTH BOOK The Princes Case 3. Jacobi in Chancery fo 1. THE Queene 37. Eliz. grants three Mannors parcell of the Duchee of C. to H. L. and G. M. the King at the supplication of the Prince brings a Scire facias against the said H. L. and S.H. to make Livery to the Prince by force of the Statute of 11. E. 3. H. L. pleads Null tielum recorde S. H. pleads the Patents with a Non obstante 32. H. 8. whereby these Mannors were made parcell of c. and the Act of Confirmation 43. Eliz. As to the plea of H. L. the Atturney sheweth an Inspeximus and demurreth upon the plea of the other two who joyne and as Amici curiae repeate part of the Statute of 1. H. 7. touching the Duchie H. L. demurreth 1. Resolv the Charter of creation of the Prince Duke of C. 11. E. 3. is an Act of Parliament for such a limittation to the first-begotten Son is void without Statute for if Grandfather King the Father Duke and Sonne be if
the King dyes the Father is King and the Son Duke by the said Statute against the rules of Law 2. The Lands cannot be so annexed to the Duchie that they cannot be severed without Statute 3. The estate is limitted to cease when the King hath no first begotten Son and to revive when he hath which cannot be without Statute 4. It should be absurd that six being then created Earles that their creation should be firme and the Creation of the Prince void 5. In the Charter there is De communi consilio Praelatorum c. and in the end Per ipsum Regem totum concilium in Parliamento such an Act as beginneth Rex Statuit and alwayes reputed for a Statute shall not be drawne in question but if it be Rex ex assensu the Commons or Lords omitting the other part it is voide 2. The said Charter having the force of a Statute is good without aid of any other Statute and although the King in his Scire facias recite another Act for thâ—s surplus the writ shall not abate 3. The Prince had the Dukedome in Fee for it is an inheritance because 21. E. 3. 41. the Princesse was indowed and it is no estate taile because it is not limitted of what body it shall come but onely that they shall be Heires to the black Prince 4. Against a generall Statute Nul tiel recorde shall not be pleaded for although it be lost yet the Judges ought to take notice of it and this is such an one which concernes the Prince and the Statute of confirmations doth not extend unto it 1. Because this hath a speciall relation to certeine defects as Misnosiner c. 2. Patents are made good onely against the King saving the right of others therefore the Princes right is saved In a Scire facias the King or Prince may reply but the most formall way is for the Attourney to replie as here he did No Sonne of the King but his first begotten shall be Duke of C. although he be Heire apparent to the Crowne Calyes Case 26. Eliz. Banco regis fo 32. 1. REsolved that to maintaine an action against an Inkeeper for goods lost c. it ought to be a common June 2. He ought to be a Passenger therefore a Neighbour shall not 3. An inholder shall not answer for any thing but that which is Infra hospitium therefore if a Passenger require that his Horse be put to grasse the inholder shall not answer if he be stollen otherwise if he require it not 4. There ought to be a default in the Inholder or his Servants therefore if a Guest bring one with him who stealeth the goods the Inholder shall not be charged otherwise if the Hostler appoint one with him in his Chamber who doth it But an inholder shall not be charged if he require the Guest to put his goods in a Chamber and he leaves them in the Court but it is no excuse to the Inholder that he delivered the Key of the Chamber to the Guest or that no goods were delivered to him 5. The Hostler shall answer for Charters if they be stollen but not if a Guest be beaten and all this appeares by the Writ and the words of it Paynes Case 29. Eliz. com banco fo 34. A Feme Tenant in taile taketh Baron and hath issue who is heard to cry and dyeth the Feme dyeth without issue the Husband shall be Tenant by the courtesie for although the state of the Feme be determined yet it is Tacite implied in the guift that every Husband of a Feme inheritable to the said estate shall have the Land for his life after the death of the Feme if he be intitled to be Tenant by the courtesie If a Feme be delivered of a Monster this doth not intitle the Husband to be Tenant by the curtesie otherwise it is if the issue had humane shape but is blemished if a Feme be ripped and the issue taken out of her Wombe the Baron shall not be Tenant by the curtesie otherwise it is if the issue which they had dyes and Lands discends after A man shall not be Tenant by the courtesie but where his issue may inherit as heire to the Feme therefore he shall not be of a possession in Law because there he makes title from the auncester of the Feme and not from the Feme Barretry 30. Eliz. fol. 36. A common Barretor is a common maintainer of Suites or quarrells in Courts or in the Countrey As first in disturbance of the peace Secondly in taking and keeping of possession with force or deceite Thirdly by false calumniation and sowing of Quarrells but to indite him of it it ought not to be that he hath done so twice or thrice but that he is a common doer of them Grieslies Case 30. Eliz. com banco fo 38. BY the custome one is chosen in a Leete to be Constable who refuseth and departeth out of the Court the Steward imposeth a Fine of 5. l. upon him for which the Bailiffes of the Lord distreine and he brings a replevin 1. Resolved every Judge of record may assesse a reasonable fine upon any man who makes contempt or disturbance to the Court but a Judge who is not of record cannot 2. This fine heeds not to be afferred because the Statute of Mag. Ch. speakes of Amerciaments and not of Fines for a fine is imposed by the Court and an Amerciament by the Jury therefore the Judgement in an Amerciament is generall Quod sit in misericordia and after upon estreits directed to the Coroners they are afferred and the Statute is that a Noble man shall be Amerced by his Peers which is not used at this day because it is reduced to a certeinty Viz. A Duke to 10. l. and others to 5. l. but an Amerciament of an Officer of the Court or he who hath execution of Writs shall be afferred by the Court so of any who is Judge as Suitors If a Juror appeare and is adjourned to a day of which he makes default this shall be inquired by his Companions for he shall be fined to the value of his Land per annum which the Court cannot know 3. A distresse may be taken for a fine without custome or for an Amerciament which is lesse Whittinghams Case 45. Eliz. fo 42. IT was resolved that if there be Lord and Tenant an Infant and the Infant make a feoffement in fee and execute the same by livery of seisin by his owne hands and after dye without heires in this case the Lord shall not have the benefit of the escheate and the Feoffement is unavoidable There be three manner of privities Viz. privity in blood 2. Privity in estate 3. Privity in Law Privities in blood as heires in blood privity in estate as joyntenants Baron and Feme Donor and Donee Lessor and Lessee c. privities in Law as Lord by escheate Lord of a Villaine c. If a Lessee for life
taile with crosse remainders to J. and K. M. discontinueth and dyeth without issue J. dyeth without issue K. dyeth and her issue brings a Formedon in the remainder and good although severall remainders for they depend upon one estate and commence by gift at one time In actions reall in which title is expressed a man shall not have one Writ for Lands to which he had severall Titles as in escheate cessavit Writ of Mesne c. but he may have a Writ of ward of Land onely although it be by severall Tenures nor one formedon upon two distinct gifts where the foundation is severall but he shall have it if there be one gift although it take effect at severall times because the foundation was joynt and single as upon a gift in taile to Brother and Sister who dye without issue or if the Brother dye without issue and the Sister dye having issue who dyes without issue he to whom the remainder limitted shall have one formedon although it vest at severall times so in an estate taile to Father and Sonne and so here In actions reall founded upon Torte a man shall have one Writ to recover Lands to which he had severall Titles as in an assize a Writ of entry c. but in a Writ of entry upon disseisin made to my Mother and her Sister Coperceners because there title is in the Writ it appeareth he ought to have severall actions but in personall actions one may comprehend severall torts and causes of actions as trespasse for trespasse made at severall dayes and places wast upon severall Leases and so of Debt Nota if a remainder be executed issue in remainder shall not have a formedon in remainder but in the discender and Count of an immediate gift but if there be a Lease for life to one the remainder in taile to A. the remainder in taile to B. A. dyes without issue if B. be chased to his formedon he shall not count of an immediate remainder but shall shew the first remainder to A. and that he is dead without issue 2. In formedon in the remainder or reverter omission of issue inheritable in the pedigree of the demandant abates the Writ but not upon the part of the perticular Tenant 3. The Demandant must make mention of the Sonne who survived the Father to which Son the Land discended but was not seised by force of the taile but he shall name him Sonne but not heire 4. The Demandant in a formedon in the Discender must make himselfe heire to him that was last seised and he to the Donee Note here because K. was never seised the Writ shall say Remanere not descendere and the Writ was Remansit jus because a discontinuance otherwise it should be Tenementa remanserunt Fraunces Case 7. Jac. fo 89. THe Plaintiffe pleads in barre of avowry that R. F. devised to I. his Sonne who leased to him the avowant replyeth that after the devise R. F. made a Feoffement to the use of the said I. upon condition that he shall suffer his Executors to take away his goods and the estate limitted to him was for sixty yeares if he should so long live with diverse remainders over and that after the death of F. I. hindered the Executors to carry away the goods whereupon T. in remainder entered and judgement given for the Plaintiffe 1. Resolv Although the condition be taken strictly the uses to I. onely and to his Heires are onely avoided by it 2. A disturbance by paroll is no Breach of the condition and because the avowant did not shew a speciall disturbance his replication was void 3. I. ought to have notice of the condition being a Stranger to it or otherwise he cannot breake it as a Copy-holder shall not forfeite for denyall of rent to him to whose use a Mannor is transferred before notice but he who bindes himselfe to doe any thing must take notice at his perill because he hath taken it upon him 4. Although that the Title which the Plaintiffe had made in barre to the avowry be destroyed yet he shall have judgement because his count is good and another Title that is to have the Land for sixty yeares by force of the uses declared upon the feoffement is given unto him by the Replication although that the title which he made for himselfe be destroyed yet the Court must adjudge upon all the record and judgement was entered for him accordingly Edward Foxes Case 7. Jacobi fo 93. A Revertioner upon a Lease for life the remainder for life in consideration of 50. l. demiseth granteth c. his reversion for 99. yeares rendering rent this is a bargaine and sale and there needs no attornement for the words of bargaine and sale are not necessary if there are words which tantamount as if at the common Law one had sould his Land an use had beene raised to the Vendee because their intent so appeared so here but if it appeare that their intent was to passe it at the common Law as if a Letter of Attorney be made to make livery the use had not risen and here appeareth their intent to passe it as a bargaine and sale because rent is reserved presently therefore it is reason that he shall have the rents of the particular Tenants presently which cannot be if it passe not by bargaine and sale and inrollment is not necessary because a tearme for yeares onely passeth in this case and â—o freehold See Sir Rowland Heywards Case 2. Report fo 35. Matthew Mannings Case 7. Jacobi fo 94. LEssee for yeares is bound in 200. Markes to W. C. and deviseth to his Wife for life and after her death to M. M and makes his Wife Executrix who agrees and dyeth intestate M. M. enters and takes administration of the goods not administred W. C. brings Debt against him Resolved that M. M. takes by Executory devise and not as a remainder and the estate limmitted to him in construction precedeth the limittation to the Wife as if he had devised that if the Wife die within the terme that then M. M. shall have the residue and also devised it to his Wife for life 2. This case is most strong because a Chattell which may vest and revest at pleasure of the Devisor without mischiefe to the Praecipe 2. A devise of the Terme and Occupation thereof all one Viz. So many yeares as the Feme shall live the remainder to M. M. 4. After the Executrix had agreed the first devisee cannot barre the Executory devise 5. A man may devise an estate which he cannot convey by act executed as to his Executors untill his Debts shall be paid the remainder over they have a Chattell determinable upon payment of the Debts which cannot be at the common Law If a Sheriffe sell a Terme upon a Fieri facias and judgement is reversed the sale shall stand otherwise none will buy any thing upon Execution and judgement was given for the Plaintiffe and affirmed in Error
shall abate against all but if it be for matter in fact onely as for misnaming one Defendant it shall abate onely against him omission or addition which doth not alter the forme is amendable as if Dei gratia be omitted Voluntary or negligent keeping of Records by the Clerke is amendable by other parts of the Record or by exemplification Count or plea in barr c. which wanteth substance shall not be amended in another Terme but default in the colour because this is the default of the Clerke shall be a Record shall be amended in another Terme by the paper Booke and a thing apparent to be the fault of the Clerke shall be amended in another Terme as rien luydoit de hoc c. predictus defend pro quaerent Nisi prius shall be amended by this Statute if power be given to the Justices to proceed otherwise not as if issue joyned in the Record be mistaken in the Nisi prius it shall not be amended but misprision of dammages shall be because this is not materiall to the issue and it is the default of the Clerke Warrant of attorney and returnes are amendable by this Statute but if there be none at all it is out of the Statute and because this Statute leaveth many cases without remedy the Statutes of 32. H. 8. cap. 30. and 18. Eliz. cap. 14. were made Ten misprisions as yet not remedied 1. Variance materiall betweene the originall and the Count. 2. Want of substance in the originall or Count. 3. Insufficient tryalls 4. If a Coroner returnes the Jury where the Sheriffe ought 5. Lack of name of the Sheriffe to the returne 6. Where no returne is indorced upon the Venire facias 7. When one who is not returned giveth a Verdict 8. Pleas of the Crowne 9. If it appeare to the Court that he who hath a Verdict had no cause of action 10. Errour in Law Cases in the Court of Wardes Myghts Case 7. Jacobi fol. 163. 1. REsolved if J. M. purchase Lands to him and an Infant in fee it cannot be averred that this was to take away the wardship because he never was sole Tenant to the King 2. No feoffement that I. M. can make of his moity can be aver'd to be by collusion c. because without feoffement no wardship shall be and also the Statute speakes of sole seisin 3. A feoffement to the wife or younger Child cannot be averred to be by covin c. upon construction of the Statute of 32. 34. H. 8. where collusion cannot be averred by the Statute of Marlebridge it cannot be now to seize all the Land but it may be for the third part which belongs to the King If a third part be left to the King no averrement of covin may be for the other two parts the Father makes a feoffement to diverse uses the remainder to his second Sonne and dyeth his Eldest Sonne dyes the second Sonne shall not be in ward by averment of covin Digbies Case 7. Jacobi fo 165. TEnant of the King conveys his Lands to the use of himselfe for life the remainder to his Sonne and Heire in taile and after is attainted of Treason the King shall have no wardship of any part of the Land by 32. 34. H. 8. because there is no Heire and livery must be sued in the name of the Heire but the King shall have wardship in such a case before 26. H. 8. because there was an Heire The Earle of Cumberlands Case 7. Jacobi fol. 166. E. 2. granted the Castle and Mannor of S. in taile to R. C. H. 6. granted the reversion to T. C. if the taile be good if not he grants it in possession this is good one way or other and so are many Patents from time to time Paris Stoughters Case 7. Jacobi fol. 168. BY Mandamus it was found that P. S. dyed seised 40. El. and held of the Queen in common socage 7. Jacobi a Melius inquirendum was awarded whither he held of the King by common socage or in chivalry and it is found that he held of the Queene by chivalry This Writ of Melius c. is repugnant and giveth no authority to find this office because a Tenure cannot be of the King in the time of Queene Elizabeth and therefore a new Writ shall be awarded but if the first Melius be good no other shall issue 1. For avoiding Infinitnesse 2. A Diem clausit c. shall not issue upon a Diem c. Nor Mandamus upon a Mandamus so a Melius c. shall not issue upon a Melius 3. If an Office be found against a Subject he shall have a traverse and if upon that it be found against him he hath no remedie So the King shall have but one office and a Melius and no more although that a Tenure be found of two Subjects or one hath an Ouster le maine the King shall not reseise without a Scire facias Toursons Case 8. Jacobi fol. 170. IF Tenant of the King commit Fellony Ao 1. Jaco and after is attainted Ao 3. for the same and after in Ao 4. all is found by office Now this office shall have relation to the time of the Fellony to avoid all meane alienations and incumbrencies but for the meane profits it shall have relation to the time of the Attendor for their the Kings Title appeared of Record and the like Law is of an Ideot But in case of a ward within age the King shall have the meane profits from the death of the Auncestor because he hath it by reason of his Seigniory and he looseth the rent and services in the meane time the difference is when the King seiseth jure protectionis regae or Nomine destrictionis and when Ratione Prioris recti seu tituli Sir Gerrard Fleetewoods Case 8. Jacobi fol. 171. SIr William Fleetewood receiver of the Revennues of the Court of Wards in Anno. 35. Eliz. was possessed of a Messuage and certaine Lands in Harrow in Com Mid for a tearme of yeares in Anno. 36. Eliz. he became Receiver generall and was bound in 20. Obligations of 200. l. a peece to make true account c. And after upon severall accounts he became indebted in great Summes of money to the Queene and being so indebted in consideration of 1100. l. did bargaine and sell the said Lease to James Pemberton which by meane conveyance came to Sir Gertard Fleetwood Question Whither this Lease c. was extendable and lyable to the Kings Debt c. and it was resolved that the said sale of the tearme was good against the King because the tearme was but a Chattell and the sale of Chattells after judgement Bona fide is good but not after Execution awarded And Cooke Chiefe Justice said that a Receiver or other accomptant which is indebted shall not be in worse case then a Fellon or a Traytor that may after Fellony or Treason and before conviction sell Bona fide for his
sustenance c. his Chattells eyther reall or personall Hales Case 8. Jacobi fol. 172. THe Heire Ward comes to full age and tenders his livery and bargaines and sells and dyes the interest of the King is determined and the Bargainee shall not answer for the meane profits for the Heire had done all that he could doe and no default in him otherwise if he had not tendered it Sir Henry Constables Case 8. Jacobi fol. 173. THe Sonne of the Tenant of the King is made a Knight in the life of his Father the Father dyes the Sonne within age tenders his livery by that the meane profits are saved and the King shall not have the rates within age Virgill Parkers Case 8. Jacobi fol. 173. VIrgill Parker seised of the Mannor of Fushell in fee houlden of the King in Chivalry of his Dutchie of Lancaster maketh a feoffement of the one halfe to the use of himselfe for life and after to the use of Mary Coney whom he intended to Marry for her life for her joynture and after he Married her and then Leased the other halfe to I. C. for yeares for payment of his Debts and Legacies and dyed his Heire within age Question whither the King should have the third part out of the Mannor so Leased onely or out of the whole and it was resolved that it shall be out of the whole Mannor although the estate of the Wife was precedent that is equally out of both parts The End of the Eighth Booke THE NINETH BOOK Dowmans Case 28. Eliz. Communi Banco fol. 7. An Assize pleaded THe Defendant in an Assize makes Title by a recovery suffered by P. V. to certaine uses the Plaintiffe confesseth the recovery and saith That it was to the use of the said P. in fee and traverseth that it was to the uses mentioned by the Defendant the Jury found that it was suffered as the Defendant had alleadged and that by Indenture subsequent the intent of the parties was declared by them to be as the Defendant had alleadged adjudg'd for the Defendants 1. Resolved that this subsequent Indenture directs the uses of the precedent recovery by estoppell against the Recoveree and his Heires and although that it be granted that a deede is requisit to the priviledge without impeachment of wast yet the estate without deede is good No averrment can be taken that the recovery was to other uses then are mentioned in a precedent indenture otherwise in an Indenture subsequent because if uses were declared by a precedent indenture no Declaration after shall devest them So if P. V. had charged the Land and then had made such a Declaration this shall not devest estates of grantees c. but no declaration being the uses by Declaration subsequent be devested 2. In all actions betweene all persons and in all issues the Jury may give a Verdict at large and the Statute of W. 2. cap. 30. which giveth it in Assize is but an affirmance of the Common Law but a Jury cannot find a thing impertinent to the issue The death of Sir James Dyer Chiefe Justice of the Common Pleas with an ample and memorable Encomium of him by Sir Edward Cooke c. Vivit post funera virtus Anna Bedingfeilds Case 28. Eliz fol. 15. In dower A Common essoyne is allowable in dowre and the Statute of 12. E. 2. is to be intended of an essoyne in the Kings service for the Statute saith in prorogation of the right which is properly this essoyne which is for a yeare and a day 2. If tenant of the King dyeth seized of diverse Mannors and it is found by office that he dyed seized of one in dowre brought against the Heire of full age he sueth a Circumspecti agatis this extends not to more then is in the Office for this Writ is in the nature of an ayde praier and the King hath no right to seise more then is in the Office and as to this Mannor it was objected that it shall be allowed as well as if the Heire be within age for in this Case by the Statute of Praerogat Regis cap. 4. that the Feme may be indowed in Chancery It was answered that by the Statute of Bigamis cap. 4. ayde shall not be granted of the King in that Case and therefore before the Statute of Praerogat the King nor other Lord could not indow the Feme if the Heire were of full age because he is not then Gardian and the Statute of Praerogat giveth power to the King to indow the Wife in such case if shee will and not otherwise Where the Heire pleads to Dower detinue of Charters they ought to concerne the same Land and this Plea is to be allowed because the Feme who deteineth Chartars is not worthy to have Dower and also for the privity which is betweene the Heire and her 2. The Heire ought to shew the certeinty of the Charters or that they were in a Chest 3. None but the Heire himselfe shall have this plea nor the Heire himselfe if he commeth in by purchase or if the Feme had them by his delivery nor if he comes in as Vouchee having no Lands in the same County or as Tenant by resceite because in these Cases he cannot pleade as he ought that he is ready to render Dower 4. A Gardian shall not pleade it because the Charters doe not belong unto him but he may pleade detinue of the Ward and if be be not restored unto him unmarried the Feme shall loose her Dower and after the Tenant waived this plea and pleaded Vnques accouple in loyall Matrimony and the Bishop of N. certified that they were lawfully married where upon the Demandant had judgement Case of Avowry fol. 20. IF there be Lord and Tenant by fealty and rent and the Tenant make a Lease for yeares and the Lessee hath done his fealty and paid his rent continually and yet the Lord distreineth the Beasts of the Lessee for the rent and avowed upon a meere stranger as upon his very Tenant Question whither the Lessee be without remedy for it is a position in Law that a stranger to the avowry shall not plead but Hors de son fee c. But it was resolved that the Lessee shall be releeved and he must alledge that the Lessor is seised of the Tenancy c. and the Lord shall be compelled to avow upon the Tenant and the false avowry of the Lord upon a stranger which is not very Tenant shall not hurt the Lessee against the verity of the Case Quia veritas nihil veretur nisi abscondi If one come to distreine for damage Fesant and seeth the Beasts and the owner chase them out the party may not distreine them damage feasant but is put to his Action of Trespasse for the beasts must be damage feasant at the time of the distresse taken he who distreines for services upon fresh suite may avow upon the Land by the equity of 21. H. 8. c. 19. if
life his heire shall not be in ward although he be within age by that Statute because he is not immediate heire Sondayes Case 8. Jacobi fol. 127. M. S. deviseth to his Wife for life the remainder to W. S. and if he shall have issue that then his issue shall have it the remainder to S. the remainder to T. c. Totidem verbis upon condition that if any of them or this heires of their bodies goe about to alien that he in the next remainder to enter after the death of M. W. and S. T. suffereth a common recovery to his owne use in fee he in the next remainder enters 1. Resol Every one of the Sonnes hath an estate taile 1. These words if he dye without issue Male are sufficient to create an estate taile 2. The generall clause if any of his Sons or heires of his body doe it maketh it manifest 3. The condition proveth it for they cannot alien if they have but for life for this would be a forfeiture 2. The restraint of tenant in taile to suffer a common recovery is voyd See Mildmayes Case in the sixth Book Quicks Case 9. Jacobi fol. 129. THe King Lord I. N. and Tho. Q. mesnes of a Mannor which they hold in common in Capite and tenant of three Acres holden in Chivalry T. Q. maketh a feoffment of his moity to the use of himselfe for life the remainder to I. Q. his Son in taile the tenant infeoffeth I. Q. who infeoffeth T. Q. to defraud I. N. of the wardship of his Sonne within age and dyes I. N. seiseth the Son T. Q. dyeth the King shall not have wardship of the body and moity of the three Acres 1. Resol By the death of I. Q. it was a Chattell vested in I. N. and the King had but a possibility to have it if T. Q. dye during the minority of the ward which possibility shall not devest the wardship out of I. N. 2. When the tenant infeoffeth a stranger to defraud the Lord of wardship the Lord shall not have ravishment of ward before recovery of the Land in a right of ward and although the title of I. N. be but in action yet it shall not be devested by a descent after See the Statute of 34. H. 8. in Case of collusion Bewleys Case 9. Jacobi fol. 130. THe King Lord mesne by Socage and tenant the tenant is attainted of Treason the King grants to one tenendum by Chivalry and Rent and to doe his services to other Lords the tenant shall hold by Socage of the mesne and he by Socage of the King because the intent of the King was to revive the mesnalty which cannot be by any other way and the reviving of the ancient tenure shall be in construction preferred before the reservation of a new and the honour of the King shall be preferred before his profit and there was no default in the mesne Thomas Holts Case 9. Jacobi fol. 131. GRandfather tenant in Chivalry in Capite Father and Son the Grandfather conveyeth part of his Lands to the use of the Father and his Wife the remainder to the Son in taile c. the remainder to the right heires of the Grandfather and conveys other Lands to his younger Children for life with diverse remainders over and dyeth the Father tenders livery and before he sueth it dyeth 1. Resol By the death of the Father before livery sued and after tender the King loseth the primer seisin but not meane rates if any be due 2. The Son shall not pay primer seisin nor sue livery because the Father and not he was within the Statute of 32. H. 8. 3. If the King had had one primer seisin he shall not have another of the Lands conveyed to the younger Children but that ought to be an effectuall seisin Ergo here because the King had not the effect of the primer seisin of the Father he shall have primer seisin of the Lands conveyed to the younger Children as if hee had the grant of a prochein avoidance and presents and his Clerk dyeth before Induction he shall present again and before the Statute of Donis If tenant in taile the revertion to the King had aliened post prolem suscitatam with warranty which descends upon the King it is no barr without assets the effect of the warranty 4. The King shall not have primer seisin in regard of a secke revertion which descends to the Son otherwise if a rent be reserved the King may have that for a yeare So note for a fruitlesse revertion there shall be wardship but no primer seisin Matthew Menes Case 9. Jacobi fol. 133. TEnant of the King of a Messuage in Capite who holds other Gavelkinde Land deviseth all to his 4. Sons equally 1. Whether the King shall have a third part of the Messuage onely 2. Whether out of the part of the heire onely because Praerogativa Regis cap. 1. Rex habebit c. De quocunque tenuerint c. is intended if the Land descend to the same heire to whom the Land holden did discende 1. Resolved if no Will had beene made the King shall not have the Lands holden of others in socage but when by the Will to which he is inabled by the Statute he deviseth it to his Sonnes there the saving in 32. H. 8. giveth to the King ward and primer seisin So if Lands in chivalry devisable by custome are devised to the Feme although the devisee be good for all without aide of the Statute yet the King shall have a wardship of a third part 2. The King shall have his third part out of all their Estates equally Ascoughs Case 9. Jacobi fol. 134. THe King Lord Mesne in Capite and Tenant in socage the Mesne grants to the use of himselfe for life the remainder to the Tenant in taile if the remainder suspends the Mesnalty during the life of the Mesne Resolved that during his life the Mesnalty is not suspended 1. Not as to the Mesne because he remaineth Tenant to the Lord nor by reason of the remainder for the avoâ—ding of Fractions otherwise if the remainder be liimitted in fee for then he hath as high an estate in the Mesnalty as in the Tenancy and this can never be revived and otherwise a Seigniory in fee shall issue out of a Mesnalty for life and there will be Lord and Tenant in fee and Mesne for life but if the Lord Grant his Seigniory for yeares the remainder for life to the Tenant the Mesnalty is suspended A Mesnalty or Seigniory cannot be suspended in part and in esse for part by the Act of the party but they may by act of Law or of a third party As if the Lord take a Lease of part of the Tenancy all the Seigniory is suspended but if a Gardian indow the Feme the Seigniory is in esse for that part and suspended for the residue If two Coparceners are of a Seigniory and one commeth to the Tenancy by
devise of Land purchased after 2. The statute doth not regard this seck reversion but inheritances of annuall value Resp To the first that this reversion shall hinder the devise by the words of the Statute for he had a reversion of Lands holden but although the Statute saith that he may alien two parts by act executed or will if he alien to one of the three uses by act executed he may devise the reversion for the Statute is to be intended of an intire Alienation and where the Statute saith in reversion or remainder it is to be intended that the devisor be seised of such a remainder which drawes wardship To the second it was answered that things which of their nature are seck are out of the Statute but not things which of their nature are of annuall value but are not of value in respect of some Lease or gift Absque abliquo inde reddendo and therefore seck reversions are devisable by the said Statutes but if they be not yet they shall hinder the devises of other Lands To make one able to devise by those Statutes the time of Having Holding and disposing must concurre and therefore if a grant to the second Sonne here had beene in fee although with power of revocation the devise had been good because he had no Lands In Capite at the time of the devise if the Father conveyeth his Land to the use of his younger Sonne the eldest being within age after the death of his Father he shall be in ward although nothing discend A true Child and not in reputation is within the Statute and if the Sonne purchase Land Bona fide of his Father this is out of the Statute because it is not for his advancement If Tenant in socage devise and after purchase Land in Chivalry the devise is void for a third part but if Tenant in Chivalry and socage devise all and after aliens the Land holden this is good To make division that the King shall have a third part holden the Lands shall be taken according to their value at the time of the death of the Devisor The time of provision that a third part must discend needs not concurre with the time of alienation but it is sufficient that he had it at the time of his death The estate to any of the three purposes ought to continue to the time of death and the Tenure must till after death to make it within the Statute and the estate also of Lands holden ought to continue after death therefore if Tenant in taile in Capite devise socage Land and dye without issue this is good so privity must continue after death therefore if he who made the conveyance be attainted this is out of the Statute The uses to the second Sonne are in contingency and not executed by 27. H. 8. by the power to make Leases and devise reserved to the feoffor and therefore the fee is in the feoffor in the meane time so that having disposed of it and being seised of it he cannot devise the Land purchased after It was Objected that the Statute saith lawfully executed in his life but here no use was to be executed in the second Sonne untill after his death It was Answered that after his death the uses were derived out of the feoffement and so are as it were executed in his life It was holden by the Chiefe Justice that the remainder to the second Sonne is contingent in regard no alienation is found to be made by the Eldest and if there had been then it would be repugnant that after alienation the Land should remaine to the second Sonne and so Quacunq via data the remainder as this Case is cannot vest in him but this point was not resolved by the Court. 2. The revocation is good although the Indenture precedeth the feoffement and that the uses are in contingency and that the revocation is but in part and the Chiefe Justice held that the Eldest Sonne had but a terme determinable and the second an estate taile But in this the Kings Bench and Common pleas differ in Opinion and that if Lands be devised to one and the Heires of his body for 500. yeares the Executors shall have it and not the Heire and the devisee may alien it for it cannot be intailed and so in Peacocks Case 28. Eliz. Banco Regis was it resolved Doctor Leyfields Case 8. Jacobi fol. 88. in Trespasse IN Trespasse for Corne taken at O. C. the Defendant pleads that Q. Eliz. granted the Rectory of O. C. to C. P. without shewing the Letters Patents who demised to G. P. for 8. yeares if the said C. P. so long live and that he as servant of G. P. tooke the Corne and avers the life of C. the Plaintiffe demurreth because the plea amounteth to the generall issue and it was adjudged in the K. Bench that the barre was insufficient because the Defendant shewed not the Letters Patents and Error was brought in the Exchequer-Chamber because the plea amounts to the generall issue because the Defendant gave no colour wherein judgement ought not to be given against the Defendant but onely to answer over 2. Because he is not bound to shew the Letters Patents It was answered that colour shall not be given for colour shall not be given where the plea goeth to the barre of the right for it would be in vaine to give colour of right and to barre him if he had right as if a collaterall warranty fine Statute be pleaded or if he claimes by a waife otherwise where he pleads a discent for this doth not barre the right but the possession he who claimes by sale in a Market overt shall not give colour if he pleads generally but if he pleads that I. S. was possessed as of his owne goods and sold them in a Market overt or waived them there he shall give colour because he confesseth no interest in the Plaintiffe 2. If the Defendant claimes by the Plaintiffe he shall not give colour 3. If the plea be to the Writ or action of the Writ no colour shall be given 4. Colour shall not be given in case of Tithes for to whomsoever the Lands belong the Tithes belong to the Parson 1. Colour ought to be a doubt to the Laygents 2. It must have continuance 3. It must be such a colour that if it be effectuall will maintaine the Action 4. It ought to be given by the first conveyance 2. Resolved Lessee for yeares of Lessee for life of the K. must shew the Letters Patents for he who is privy in estate or interest or who justifieth in right of a Party or privy although he claime but part must shew the first deed and the reason that deeds are shewed to the Court is that the Judges and Jury that which respectively to them belongs shall judge of the sufficiency thereof therefore a deed shall not be suffered to be given in evidence by Witnesses or Copy except it be burned
or some such inconvenience but a Copy of a record is good evidence if a release be made to Tenant for life this inureth to the reversioner yet he cannot pleade it without shewing a Fortiori here because the Lessee may contract with the Lessor to suffer him to have the deed to shew but Strangers who claime not the thing granted nor interest out of it need not to shew the deed otherwise if he claimes the thing granted or interest out of it Ergo the second grantee of a rent charge must shew the first grant but he who claimes as Gardian or meerly by the Law without privity or power of providing the deed need not to shew it But Tenant by the courtesie must shew it because the deed was in his power living the Wife otherwise of Tenant by Statute c. 3. The not shewing of the deed is matter of substance therefore judgement shall be given against the Plaintiffe in the Writ of Error although it was not shewed as Cause of Demurrer And judgement was affirmed Nota when a plea amounts to a generall issue if the Plaintiffe demurre specially upon 27. Eliz. and the Defendant joyne judgement shall be given for the Plaintiffe Edward Seymors Case 10. Jacobi fol. 95. THe Lord Cheyny Tenant in taile the remainder in taile to I. C. the reversion to the Lord C. bargaines and sells and levyes a fine to the bargainee with warranty to him and his Heires the bargainee nfeoffeth the Lord S. who infeoffeth E. S. I. C. dyes having issue T. the Lord C. dyeth without issue Edward Lord S. leaseth to the Plaintiffe the Defendant by the command of T. ejected him and judgement was given for the Defendant and affirmed in Error 1. Resolved the bargainee had an estate discendible during the life of the bargainor whereof his Wife shall have Dower and also the reversion in fee expectant upon the remainder in taile 2. The fine after bargaine and sale is not discontinuance of the remainder for this operates upon the estate passed by bargaine and sale and corroborateth that and maketh it determinable onely upon the death of the bargainor without issue otherwise if the fine had preceded the bargaine and sale 3. It was Objected that the feoffement of the bargainee displaceth the remainder so that the warranty which discends upon him barreth him But resolv that the warranty doth not bind him 1. Because it was annexed to an estate determinable by the death of Tenant in taile without issue and to the reversion in fee granted by bargaine and sale and fine and not to the remainder in taile and the Conisee by his owne Act cannot make it to extend any further therefore the estate taile being determined the warranty ceaseth 2. A warranty barreth not an estate which is not displaced at the time of the warranty annexed as if the Father maketh a feoffement of Land out of which his Sonne hath a rent with warranty this binds not the Sonne as to the rent 3. The feoffement was lawfull because he had fee therefore he cannot make discontinuance 4. A warranty cannot enlarge an estate the remainder in taile to I. C. was not discontinued for the feoffor was not then seised by force of the taile 5. A collaterall warranty may be given in evidence if it be not pleaded for although it giveth not a right yet it barreth anothers right and the rather in an Ejectione firmae and other personall actions because in them it cannot be pleaded by way of barre Note there are some Titles to which a warranty extendeth not as in case of Mortgage Mortmaine consent to a Ravishor for in these cases no Action lyeth in which Voucher or Rebutter can be neither shall a discent take away an entry Bewfages Case 10 Jacobi Common Pleas. fol. 99. THe Sheriffe upon a Fieri facias executed did take an Obligation of the Defendant to pay the money in Court at the returne of the Writ and this was adjudged good notwithstanding the Statute of 23. H. 6. Before this Statute the Sheriffe could not let any person to baile which was taken Ad respondend as may appeare Fitz. Na. br 25. a b. and in 34. Eliz. in Debt by Dawson Sheriffe of B. against Burnam upon an Obligation the Defendant pleaded the Statute 23. H. 6. and shewed that one K. recovered Debt and damages against him and pursued one Writ of Fieri facias against him directed to the Sheriffe of B. and that he made the Obligation to the Plaintiffe for the Execution and that the Obligation was void by the Statute whereupon the Plaintiffe demurred and it was resolved First that the Obligation was not within the Statute because that the Statute extended onely to such Obligations which any who is in their ward did make unto him Secondly that the same Obligation was not void at the Common Law whereupon the Plaintiffe had judgment and another judgement 28 El. Inter Burwey Kett upon an Obligation taken by the Sheriffe Pro solutione pecuniae debitae dominae reginae upon extent out of the Exchequer Now it is said in the later clause of the Act that if any of the Sheriffs or other Officers or Ministers aforesaid take any Obligation in other forme by colour of their Offices that it should be void c. There are two manner of formes Viz. Forma verbalis forma legalis for Verbalis stands upon the Letters and Sillables of the Act Forma legalis is Forma essentialis and stands upon the substance of the thing to be done and upon the sence of the Statute Quia notitia ramorum hujus Statuti non in sermonum folijs sed in rationis radice posita est and according to this distinction this Branch of this Statute is to be expounded and therefore in 37. H. 6. 1. If the Sheriffe take a single Obligation of one in his ward that was bailable this was void for this Obligation wants essentiall forme prescribed by the Statute for the condition prescribes the fault which is part of the substance And there Moyle said that if the Sheriffe let one to Baile or Mainprise that is excepted in the Statute and not mainpernable and take a simple Obligation that the same is void Quod alij Justiciarij concesserunt for by the exception it appeareth that it was not the intention of the Statute that such should be let to Baile and therefore the Obligation is taken in another sence then the Statute intends And it seemeth to me that as well in the same Case of 37. H. 6. as in the principall Case of Dive and Manningham plow 67. the Obligation which hath the condition to save the Sheriffe harmelesse when the Sheriffe against the Law letteth one to Baile who is not Baileable is against the Law and void by the Common Law And with this accordeth William Wishams Case 15. Eliz. Dyer 324. in 7. E. 4. One was in custody of the Sheriffe by force of a Capias upon an