practices should be suffered and go unpunished that no mans life was in safety but in continual jeopardy And therefore in this case it was said that pregnant presumption had been sufficient to have acquited the Plaintiff but here the case was very cleer because the matter was confessed by the parties Defendants themselves And in this case Cook Chief Justice and the Lord Chancellour said that a conspiracy ought not to be onely false but malitiose contrived otherwise it will not be a conspiracy and such malice ought to be proved For if a poor Man travelling upon the High-way be robbed by another Man and he knows not the party if afterwards he do accuse such a one of the Robbery and the party accused be found not Guilty he shall not have an Action of conspiracy against the accuser for although he was falsly accused yet he was not malitiously accused and it might be that he took him to be the Offender because he was like unto him who robbed him Secondly It was said by them that by the Law no Man may Begg the Lands or Goods of another man upon such an accusation until the party be convict of the fact and that for divers causes 1. Because before conviction the King hath not an Interest in them for the goods are not forfeit And 2. Because the party till his conviction ought to have his goods to maintain himself with them And 3. Because the goods cannot be seised upon for the Kings use before conviction although they may be put in salva custodia and therefore they said that this was a very great slander which the Defendants layed upon the Lord Viscount Rochester viz. that he had begged the Plaintiffs goods of the King before he was convicted and it was said that if such goods should be begged before conviction of the party that the same would be a main cause that the Jury will not find the Indictment against the party when they are sure his Lands goods and other estate shall be in anothers person and so by consequence should be a great cause that the King might be defrauded of the forfeiture of the goods of Fellons and further it would be a great cause of Rebellion if such Lands and goods should be seised upon and given away before conviction of the party accused And as the Lord Chancellour said the same was the cause of the great Rebellion in the time of King Henry the sixth because the goods of divers were given away to other men before the parties were convicted And Cook said that it appeareth that this was not onely a scandal of divers Gentlemen of Worship whom the Defendants had abused in this thing But even of the King himself And it was not onely scandalum Magnatum But scandalum Magistr Magnatum And he said that it appears in Britton that if a Rebel or base fellow do strike a Man of Dignity that he shall lose his right hand à fortiori in such case when they defame and scandalize them by such impudent practices that they be grievously punished And it should be a very unhappy estate to be a Rich-Man if such Offences should not severely be punished multi delicti propter inopiam The Sentence against the said Defendants was this Reignolds being an Attorney to be degraded cast over the Common Pleas Barre and both the Defendants to lose their Eares to be marked in the Face with a C. for Conspirators to stand upon the Pillory with Papers of there Offences to be Whipped and each of them fined to the King in 500. pound and according to this Sentence Reignolds the same Mich. Term was cast over the Common Pleas Barre by the Cryers of the Court and the other part of the Sentence executed on them both Mich. 11. Jacobi in the Common Pleas. 294 COOKES Case IN a Writ Quare intrusit maritagio non satisfacto It was found for the Plaintiff but no damages were assessed by the Jury and the value of the Marriage was found to be 500. pound And now the question was whether the same might be supplied by a Writ of Enquire of Damages and the Court primâ facie seemed to doubt of the case For where the party may have an attaintment there no damages shall be assessed by the Court if the same be not found by the Jury and therefore the Court would be advised of it but afterwards in the same Term it was adjudged that no Writ of Enquire of damages should Issue But a venire facias de novo was granted to try the Issue again Vide 44. E. 3. the opinion of Thorpe acc Note this was the last Case that Cook Chief Justice did speak to in the Common Pleas for this day he was removed from that Court and made Chief Justice of the Kings Bench. Mich. 11. Jacobi in the Common Pleas. 295 WEDLOCK and HARDING's Case THE Case was this a Man seised of a Messuage holden in Socage in Fee by his will in Writing devised the same to his Cosen by these words viz. I devise my Messuage where I dwell to my Cosen Harding and her Assignes for eight years And also my Cosen Harding shall have all my Inheritances if the Law will And it was adjudged by the whole Court without argument That this was a devise of the Messuage in Fee by these words and that all his other Inheritances passed by the said Will by those generall words Mich. 11. Jacobi in the Common Pleas. 296 ROSSER against WELCH and KEMMIS IN an Action of Debt brought against the Defendants upon severall Praecipes one Judgement is given and the Plaintiffe takes forth a Capias against one of them and arrests his body and afterwards hee takes a Fieri facias against the others And the question was Whether the severall Executions should be allowed and the Court was of opinion they should not for that a man shall have but one satisfaction And therefore in the principall Case because that upon the Fieri facias twenty five pounds was levied if the other who is in prison upon the Execution will pay the other twenty five pound the whole Judgment being but fifty pound the Court awarded that the prisoner should be discharged and the Court was clear of opinion that the partie cannot have a Fieri facias against one and a Capias ad satisfaciendum against the other But it was agreed That he might have a Capias against them both As if a man hath one Judgement against seven persons he may take all their bodies in execution because the body is no satisfaction but onely a gage for the Debt and therewith agreeth 4. H. 7. 8. 5 E. 4. 4. and C. 5. part Bamfeild's Case Mich. 11. Jacobi in the Common Pleas. 297 JENOAR and ALEXANDER's Case IT was moved for a Prohibition to the Court of Requests because that the Court held plea of an Attornment for the complaint there was to compel a man to attorn upon a Covenant to stand seised to uses
who is out of the Faith of the King shall forfeit his Land for the same à forâ—iori he who is out of the faith of God and that he swore to be Law Whereupon Burgh said Respondes ouster And so saith Fitzherbert Tryal 54. by that Plea and Judgement Miscreancy and Deprivation at Rome shall bee tryed here And there the Venire facias was awarded to the Sheriffe where the Church was and not to the Bishop of Durham and so the Miscreancy and Deprivation shall bee tryed where the Church is The third Point was Whether an Administrator might count of his own Possession although he was never possessed and the whole Court were of Opinion that he might if the Intestate at the time of his death was possessed The Administrator may declare of Goods taken out of his owne Possession although he was never possessed for of transitory things the Law casts upon him a sufficient possession to maintain an Action Possessory as the Lord before seisin may have a Ravishment of Ward c. But otherwise it is if one take the Goods of the Intestate out of his Possession before he dieth for then but only a bare right comes to the Administrator And that is to bee meant when the Goods are taken Transgressivè and not Destrictivè The fourth Point was Whether the Jury might find matter done out of the Realme and if that should abate the Writ or not And they held also cleerly That upon a generall Issue the Jury may find a Forrain matter as a thing done out of the Realme but it shall not abate the Writ if it be not matter of substance and pleaded before But here the finding of the Letters of Administration is more then they had in Issue and also is but matter of Evidence for the substance in this Case was the Possession and not the Administration for he might have an Action of his Possession without shewing the Letters of Administration And afterwards Judgement was given for Carter the Plaintiffe Mich. 27. Eliz. In the Kings Bench. 42. FUTTER aud BOOROMES Case THE Case was that the Queen by her Letters Patents anno 12. of Reign ex certa scientia mero motu c. did grant to B. totam illam portionem decimarum Garbarum in L. in Com. Norf. unà cum omnibus aliis decimis suis cujuscunque generis speciâ—i fuâ—rint in L. nuper in possessione Johannis Corbet or his Assigns nuper Abath dâ— Wenly pertinent c. And in facto the Parsonage of L. was parcell of the Abby of Wenly and out thereof was a portion appertaining to another Church And this Rectorie came unto the Queen by the Statute of dissolution of Abbyes The question was whether the Rectorie do pass by the Grant totam illam portionem there being also words in the Patent viz. Non obstante any misnosmer misrecital or other such things which are recited in the Statute for confirmation of Patents Hamon the Grant is good for this word portion shall not be said a thing severed from the Church and Rectorie And all the Tythes are parcel of the Rectorie for as 44. E. 3. 5. is before the Councel of Lateran a man might give his Tythes to what Church he pleased And when any thing is given to the Church it is a portion belonging to the Church as the Glebe is which is but a clod of Earth which is parcel of the Rectorie and a portion of it And a case in this Court in the time of this Queen was argued and there in a Rectorie there were many Priests and each of them knew his portion so as they were called portionary Priests which was in respect they had each of them interest in the Church and not because their portions were severed each from the other And 22. E. 4. 24. by Pigot it is said If a Parson hath any Tythes in another Parish as appertaining to his Church it is called a portion so as portion is not meant that which is severed by it self as in gross But by portion is meant all the Tythes appertaining to the Rectorie or the Rectorie it self For as 22. Ass 9. is If the King have Tythes of those Lands which lie out of any Parish if he grant totam portionem decimarum c. I conceive that the Tythes shall pass thereby And yet it is a thing severed from other Tythes but it doth contain all the qualitie of Tythes in that place And also if the King grant his Rectorie of D. to J. S. saving to him the Tythes and afterwards grants totam portionem Decimarum c. I conceive cleerly under correction that the Tythes shall pass And in the principal case If the Tythes shall not pass by this word portion yet the Non obstante in the Letters Patents de male nominando c. shall make it to be a good grant and that so the Tythes shall pass thereby We are also to consider if by any words subsequent in the Patent the grant be not good viz. by these words cum omnibus aliis Decimis c. in tenura occupatione Johannis Corbet c. Whereas in truth John Corbet was never Occupier of them And as to that I conceive That the words before cumâ—omnibus c. passe the Tithes And that the words after shall not abridge or controle the largeness of the precedent words and to that purpose is the Case 39. E. 3. 9. of the Grant of the King to the Earle of Salisbury c. In the end of which Grant were these words Quas nuper concessimus patri c. although that the thing granted was never granted to the Father yet the Grant was good and not restreined by those words coming after 2. E. 4. A Release was pleaded of a right which the party had in Lands of the part of his Father c. there although he had the Land from the part of his Mother yet the Release was good In the Case of the Bishop of Bath and Wells which was lately argued in the Exchequer Chamber There it was agreed That if the King grant a Faire in such a place or elsewhere in the County of Somerset if he mistake the County in putting one County for another yet the Grant is good and all that coming after the alibi shall be void He further argued That all the matter appearing by speciall Verdict is not well found for the Jury find That no Tithes were in the Occupation of John Corbet at the time of the Grant and no mention is in it that they were not in his Occupation nor in the Occupation of his Assignes for they might be in the Occupation of his Assigns although that they were not in his own Occupation For in a Verdict if it strongly imply any thing not expressed as in the Case of Trivilian where the Jury found a devise of Land without saying That the Land was holden in Socage it is a good finding of the Jury for no devise
found amongst the Latinists Snag said What then yet one is a word which is received in the Law and is vox artis but the other not and therefore it is not in the same degree Also he said That when the Indictment comes to the Accessories It said Felonicè praesentes abbâ—ttentes assistentes and felonicè cannot be applied to praesenteâ— Also when it comes to the Accessories it doth not say Ex malitia praecogitata abbetâ—entes assistentes c. Cook contrary and he said That if Indictments have sufficient substance they are not to be overthrown for trifles As to the first he said If you will have it to be coram Coronatore de Comitatu perhaps it was a Liberty and then coram Coronatore of the Liberty cannot be coram Coronatore of the County Gaudy Justice said that was no answer But as to this point the Justices desired that Presidents might be searched and said that they would follow the greater number of them Clenche If one say that such a one is a Justice of Peace in Hertfordshire it is all one as if he had said a Justice of Peace of Hertfordshire As to the 2d. Jurati that is no Exception for it is true that it must be so in an Assize but not in an Indictment also no President can be shewed where ex malitia propensa sua shall be applied to every word when it runs in sense to all by Conjunctions copulative As to the Exception that there ought to be the length breadth c. Kempe the Secondary said That it was not worth the standing upon and as to the word Murdredi if it had been left out the Indictment had been sufficient and that shall not make the Indictment void for if it be left out it doth no hurt to it For if many come together to make an Assault ex malitia praecogitata and one of them onely strikes the partie mortally and he dieth it is murder in them all And that was Doctor Ellis case in the Commentaries and the Indictment needs not say that they were praesentes abbettantes auxiliantes and as to the word felonicè it goes to all the words although not particularly applied Note all the Justices did incline that the Indictment was good notwithstanding the Exceptions but yet they said they would advise of it and look upon Presidents Mich. 28 29. Eliz. in the King 's Bench. 79. A Writ of Error was brought against two upon a Recovery in a Precipe quod reddat c. and one of them died The question was Whether the Writ should abate Cook moved that it might not abate for he said That the Writ of Error is but a Commission for to examine the Record and the partie shall recover nothing therby but shall be onely discharged from the first Recovery and he said It is not like unto a Precipe Then the Justices demanded of him if the Recovery were in a reall Action and he said that it was Then they said that 3. H. 7. 1. is That if Error be brought upon a Recovery in a personall Action that death shall not abate the Writ but otherwise if it were upon a reall Action for there the Judgement shall be that he shall be restored to the Land Quere Mich. 28 29. Eliz. in the King 's Bench. 80 AN Appeal of Mayheme was that Percussit super manum dextram viz. inter manum dextram brachium dextrum And Exception was taken to it that it was repugnant for if it was inter brachium manum dextram therefore it could not be super manum dextram for the word inter excludes both Cook It is certain enough because it saith Super manum dextram And an Indictment shall not abate for forme if it be sufficient in substance of matter and also being upon the Wrist it was upon the rising of the hand Mich. 28 29 Eliz. in the Kings Bench. 81 A Man made a Lease for years rendring rent at the Feast of Saint Michael th'Arch-Angel and if it were behind by ten days after being in the mean time lawfully demanded and no sufficient distresse to be found upon the Land that then it might be lawfull for the Lessor to re-enter The last of the ten dayes at the hour of two afternoon the Rent was demanded and there was a sufficient distresse upon the Land before the Demand but not after and whether the Lessor might enter or not was the question Daniel These words Sufficient distresse ought to be referred to the time of the Demand viz. to the last instant at which time the Demand is only materiall Upon a Cessavit if there be a sufficient distresse the last instant of the two years it is sufficient Clenche Justice held That there ought to be a sufficient distresse upon the Land for all the ten dayes But Suit Justice held That it was sufficient if there were a distresse for a reasonable time so as it might be presumed that the Lessor might have knowledge of it But if a distresse be put upon the Land only for an hour or by nights he held it was not a sufficient distresse Mich. 28 29. Eliz. in the Kings Bench. 82 Sir EDWARD HOBBYE'S Case IN this Case the question was Whether the Death of one of the Defendants should abate the whole Writ of Error Cook The Writ shall not abate for no Defendant is to be named in the Writ which see in the forme of the Writ of Error and 2 R. 3. 1. it is holden That the Writ shall not abate for it is in its nature but a Certiorari and Judgement only is to be reversed Atkins Although that the Defendants have not day in Court by the Writ of Error yet by the Scire facias which is sued upon it as in our Case it is they have day and see 3. H. 7. and 14. H. 7. a difference where it is a Writ of Error upon a reall Action and where upon a personall Cook That holds Where the first Writ is abated and so is 3. H. 7. See the Case a little before Gaudy and Clench Justices bring a new Writ of Error for that is the surest way Mich. 28 29. Eliz. in the King 's Bench. 83 LOVELL and GOLSTON'S Case IN a Writ of Error brought upon a Record removed out of the Court of Kingston where the first Judgement was given in an Action of Debt for an Amercement in a Court Baron The first Error which was assigned was That he in the Action of Debt did declare That whereas at a Court holden before William Fleetwood Steward c. whereas it ought to have been holden before the Suitors for they are the Judges The second Error was That the Presentment upon which the Amercement is grounded saith That Golston the Defendant had cut down more Trees quam debuit extra boscum Domini 1. That it is repugnant for he could not cut wood extra boscum but in bâ—sco 2. When it saith many and doth
the time of King Henry the 8. said That if the King should arrest him of High-Treason that he would stab him with his dagger and it was adjudged a present Treason So was it also adjudged in the Lord Stanley's Case in the time of King Henry the 7. who seeing a Young-man said That if he knew him to be one of the Sons of E. 4. that he would aid him against the King In the like manner a woman in the time of Hen. 8. said That if Henry the 8. would not take again his wife Queen Katherine that he should not live a year but should die like a dog So if discontented persons with Inclosures say That they will petition unto the King about them and if he will not redress the same that then they will assemble together in such a place and rebell In these Cases it is a present Treason and he said That in point of Allegiance none must serve the King with Ifs and Ands. Further Cook Chief Justice said That Faux the Gunpowder Traitor being brought before King James the King said to him Wherefore would you have killed me Faux answered him viz. Because you are excommunicated by the Pope How said the King He answered Every Maunday-Thursday the Pope doth excommunicate all Herâ—tiques who are not of the Faith of the Church of Rome and you are within the same Excommunication And afterwards Owen was found guilty and Judgment of Treason was given against him Mich. 13 Jacobi in the Kings Bench. 364. SIMPSON'S Case RIchard Simpson a Copy-holder in Fee jacens in extremis made a Surrender of his Copyhold habendum to an Enfant in ventrefamier and his heirs and if such Enfant die before his full age or marriage then to John Simpson his brother and his heirs The Enfant is born and dieth within two moneths Upon which John was admitted and a Woman as Heir-general to the Devisor and to the Enfant is also admitted and entreth into the Land against whom John Simpson brought an Action of Trespasse and it was adjudged against the Plaintiffe And two points were resolved in this Case 1. That a Surrender cannot begin at a day to come no more then a Livery as it was adjudged 23 Eliz in this Court in Clarks Case 2. That the Remaindor to John Simpson cannot be good because it was to commence upon a Condition precedent which was never performed And therefore the Surrender into the hands of the Lord was void for the Lord doth not take but as an Instrument to convey the same to another And it was therefore said That if a Copy-holder in Fee doth surrender unto the use of himself and his heirs because that the Limitation of the use is void to him who had it before the Surrender to the Lord is void Trin. 13 Jacobi in the Chancery 365. The Lord GERARD'S Case IT was holden in the Chancery in the Lord Gerards Case against his Copyholds of Aâ—dley in the County of Stafford That where by antient Rolls of Court it appeareth that the Fines of the Copyholds had been uncertain from the time of King Hen. the 3 to the 19 of H. the 6. and from thence to this day had been certain Except twenty or thirty That these few antient Rolls did destroy the Custome for certainty of Fine But if from 19 H. 6. all are certain except a few and so incertain Rolls before the few shall be intended to have escaped and should not destroy the Custome for certain Fines Hill 13 Jacobi in the Common-Pleas 366. BAGNAL and HARVEY'S Case IN a Writ of Partition it was found for the Plaintiffe And a Writ was awarded to the Sheriffe that he should make the partition And the Sheriffe did thereupon allot part of the Lands in severalty and for other part of the Lands the Jurors would not assist him to make the partition All which appeared upon the Retorn of the Sheriffe And an Attachment was prayed against the Jurors who refused to make the Partition and a new Writ was prayed unto the Sheriffe And the Court doubted what to do in the Case whether to grant an Attachment or not and whether a new Writ to the Sheriffe might be awarded And took time to advise upon it and to see Presidents in the Case Hill 13 Iacobi in the Kings Bench. 367. BLANFORD'S Case A Man seised of Lands in Fee devised them unto his Wife for life and afterwards to his two Sons if they had not issue males for their lives and if they had issue males then to their issue males and if they had not issue males then if any of them had issue male to the said issue male The wife died the sons entred into the lands and then the eldest son had issue male who afterwards entred and the younger son entred upon the issue and did trespasse and the issue brought an Action of Trespasse And it was adjudged by the whole Court that the Action was maintainable because by the birth of the issue male the lands were devised out of the two sons and vested in the issue male of the eldest Crook Justice was against the three other Justices Hill 13 Iacobi in the Kings Bench. 368. BROOK and GREGORY'S Case IN a Replevin the Defendant did avow the taking of the Cattle damage feasants And upon issue joyned it was found for the Plaintiffe in the Court at Winsor being a Three-weeks Court And the Defendant brought a Writ of Error and assigned for Error That the Entry of the Plaint in the said Court was the 7. day of May and the Plaintiffe afterwards did Declare there of a taking of the Cattel the 25. day of May. And whether the same was Error being in a Three-weeks Court was the Question and 21 E. 4. 66. was alleadged by Harris that it was no Error But the Court held the same to be Error because no Plaint can be entred but at a Court and this Entry of the Plaint was mesne betwixt the Court dayes and so the Declaration is not warranted no â—ustome being alleadged to maintain such an Entry 2. It was holden by the Court in this Case That 〈…〉 est erratum is pleaded the Defendant cannot alleadge Dimâ—â—â—tion because there is a perfect issue before 3. It was holden That a 〈◊〉 cannot alleadge Diminution of any thing which appeareth in the Râ—â—â—d to be 〈◊〉 And because the Defendant â—id alleadge Diminution 〈◊〉 Case of the Record and by the Record it was certified that the 〈◊〉 was entred the 25 day of May the same was not good after issue joyned and after Judgment is given upon the â—â—â— Record upon the first Dâ—â—â—aration and Pleading in the said Court of Winsor And therefore the Judgment was reversed by the opinion of all the Justices Hill 13 Iacobi in the Kings Bench. 369. BISSE and TYLER'S Case IN an Action of Trover and Conversion of goods the Defendant said That J. S. was possessed of the said goods and sold them unto him in open market
duty did survive with the wife or were extinguished by the entermarriage was the Question And Hâ—bart Chief Justice and Warburton were against Winch and Hutton Justices That the marriage was a Release or discharge of the 100â— Quaere Hill 15 Jacobi in the Kings Bench 380. PLOT' 's Case AN Enâ—ant brought an Assise in the Kings Bench for Lands in Mich depending which The Tenant in the same Assise brought an Assise for the same Lands in the Common-Pleas which last Writ bore date and was recornable after the first Writ And the Demandant in the second Writ did recover against the Enfant by default by the Aâ—â—â—se who found the Seisin and Disseisin And upon a Plea in 〈◊〉 of the first Assise of that Recovery the Enfant by way of Replication set forth all the special matter And that the Deâ—andant at the time of the second Writ brought was Tenant of the Land And prayed that he might 〈◊〉 the Recovery And it was adjudged That he might falsifie the Recovery For in all Cases where a man shall not have Error noâ—â—â—taint he may Falsifie But in this case he could not have Error nor Attaint because the Judgment in the Common-Pleas was not given only upon the Default but also upon the Verdict And it should be in vain for him to bring an Attaint because he shall not be 〈◊〉 to give other Evidence then what was given at the first Trial. Also he shall falsifie the Recovery because it was a practise to defeat and take away the Right of the Enfant and to leave him without any remedy whatsoever Pasch 16 Iacobi in the Kings Bench. 381 INGIN and PAYN'S Case LEssee for years was bounden in a Bond to deliver the possession of a house unto the Lessor his heirs and assignes upon demand at the end of the term The Lessor did bargain and sell the Rendition by Deed enrolled to two One of the Bargainees at the end of the term demanded the Delivery of the Possession The Lessee refused pretending that he had no notice of the bargain and sale It was adjudged that the Bond was forfeited Pasch 16 Iacobi in the Common-Pleas 382. JERMYN and COOPER'S Case A Man by Deed gave Lands to A. and to a Feme sole and to their heirs and assigns for ever Habendum to them and to the heirs of their bodies the Remainder to them and the survivor of them for ever And it was adjudged by the Court That they had an Estate in tail with the Fee-simple Expectant Pasch 16 Jacobi in the Kings Bench. 383. A Man was Indicted De verberationem vulnerationem of J. S. and the words vi armis were left out of the Indictment And the same was adjudged to be helped by the Statute and that the Indictment was good Mich. 16 Jacobi in the Kings Bench. 384. BARNWEL and PELSIE'S Case A Parson did Covenant and grant by Deed with one of his Parishioners That in consideration of Six pounds thirteen shillings and four pence per annum be paid unto him that the said Parishioner should be discharged of all Tythes upon condition to be voyd upon default of payment Afterwards the Parson against his grant did sue the Parishioner in the Spirituall Court for Tythes in kind and it was moved for a Prohibition But the Court would not grant it because that the Originall viz. the Tythes do belong to spirituall jurisdiction But it was said that the Parishioner might have an Action of Covenant against the Parson upon the Deed in the Temporall Court 385. Posch 16 Jacobi in the Kings Bench. AN Action upon the Case was brought for speaking of these words viz. J. S. 34 years since had two Bastards and hath paid for the nursing of them And the Plaintiff shewed that by reason of these words contention grew betwixt him and his wife almost to a Divorce And it was adjudged That an Action would not lye for the words And the Chief Justice said That an Action upon the Case doth not lye for every ill word but for words by speaking of which the Plaintiff is damnified and that cannot be in this Case the time being so long past And the causes wherefore a man shall be punished for saying that a man hath a Bastard are twoâ— the one because by the Statute of 14 Eliz. the offender is to be punished for the same And secondly because the party by such means is discredited or hindered in his preferment Hill 16 Iacobi in the Kings Bench. 386 HURLSTON and WODROFS Case HEnry Hurlston was Plaintiff against Robert Wodroffe in an Action of Debt upon a Demise of a Messuage with a Sheep-walk the Latin word being Ovile And it was moved in arrest of Judgement after a verdict found for the Plaintiff That the sheepwalk was not alledged to be appurtenant nor pleaded to be by Grant by Deed. But notwithstanding that it vvas ruled by the vvhole Court because it rested indifferent whether there was a grant by Deed or not That when the Jury find that the Sheep-walk did passe it shall be intended that there was a Deed. Dodderidge Justice in the Argument of this Case did hold That by the word Ovile although it be translated in English a Sheep-walk yet a Sheep-walk did not passe by it but a Sheep-Cote and by that the Land it self did passe Hill 16 Iacobi in the Kings Bench. 387. HILL and WADE'S Case HIll brought an Action upon the Case against Wade and declared upon an Assumpsit to pay mony upon request and did not alleadge the Request certain but issue was joyned upon another point and found for the Plaintiffe That the failing of certain alleadging of the Request in the Declaration made the same insufficient And so it was adjudged by the Court with this difference where it was a duty in the Plaintiffe before and where the Request makes it a duty For in the first case the Plaintiffe need not alleadge the Request precisely but otherwise in the later Dodderidge Justice put this Case If I promise J. S. in consideration that he will marry my daughter to give him 20â— upon request there the day and place of the request ought to be alleadged in the Declaration Montagu Chief Justice cited 18 E. 4. and 5 H. 7. to be contrary viz. That the finding of the Jury made the Declaration which was vitious to be good As if Executors plead That they have nothing in their hands the day of the Action brought it is insufficient But if the Jury find Assets it is good and so by consequence the Verdict shall supply the defect of Pleading But the Court held these books to be good Law and not to be contrary and well reconciled with this difference For there the Plea was naught only in matter of circumstance but otherwise it is where it is vitious in substance as in this case it is And a difference also was taken where the Verdict doth perfect all which is material and ought to be expressed
them and held that the Custom might be good Mich. 17 Jacobi in the Kings Bench. 400. IN an Evidence in an Ejectione firme for Land in the Countie of Hartford the Case was this A man was married unto a woman and died The wife after 40 weeks and 10 days was delivered with child of a daughter and whether the said daughter should be heir to her Father or should be bastard was the Question and Sir William Padde Knight and Dr Montford Physitians were commanded by the Court to attend and to deliver their opinions in the Case who being upon their Oaths delivered their opinions That such a child might be a lawfull daughter and heir to her Father For as wellas an Antenatus might be heir viz. a child born at the end of 7 months so they said might a Postnatus viz. child born after the 40 weeks although that 40 weeks be the ordinary time And if it be objected that our Saviour Christ was born at 9 months and five days end who had the perfection of Nature To that it may be answered That that was miraeulum amplias And they held that by many Authorities and by their own Experiences a child might be Legitimate although it be born the last day of the 10â—h Month after the conception of it accounting the Months per Menses solares non Lunares Hill 17 Iacobi in the Kings Bench. 401. WEBB and PATERNOSTERS Case A Man gave Licence unto another to set a Cock of Hay upon his Medow and to remove the same in reasonable time and afterwards he who gave the Licence made a Lease of the Medow to the Defendant who put his Cattel into the Medow which did eat the Hay And for that the Paintiffe brought his Action of Trespass And upon Demurrer joyned the Court was of opinion against the Plaintiffe For upon the whole matter it appeared That the said Hay had stood upon the said ground or Medow for 2 years which the Court held to be an unreasonable time Mich. 18 Iacobi in the Kings Bench. 402. BROWN and PELL's Case IN an Ejectione firme upon a special Verdict found the Case was this Browne had issue two Sons and devised his Lands to his youngest Son and his Heirs And if it shall happen his said youngest Son to die without issue living his eldest Son That then his eldest Son should have the Lands to him and his Heirs in as ample manner as the youngest Son had them The youngest Son suffered a Common Recovery and died without issue living the eldest Son The Question was whether the eldest Son or the Recoverer should have the â—ands Montague Haughton and Chamberlain Justices The same is a Fee-simple Conditional and no Estate Tail in the youngest Son Doddridge Justice contrarie Mich. 18. Jacobi in the Kings Bench. 403. POLLYES Case IN an Action of Trespass It was agreed by the Court If 2 Tenants in Common be of Lands upon which Trees are growing and one of them felleth the Trees and layeth them upon his Freehold If the other entreth into the â—and and carrieth them away an Action of Trespasse Quaere clausum fregit lyeth against him because the taking away of the Trees by the first was not wrongfull but that which he might well do by Law And yet the other Tenant in Common might have seized them before they were carried off from the Land But if a man do wrongfully take my Goods as a Horse c. and putteth the same upon his Land I may enter into his Land and seize my Horse again But if he put the Goods into his House in such Case I cannot enter into his House and retake my Goods because every mans House is his Castle into which another man may not enter without special Liâ—ence Hill 19 Iacobi in the Kings Bench. 404. THe Case was That two Tenants in Common of Lands made a Lease thereof for years rendring Rent and then one of them died And the Question was who should have the Rent And if the Executor of him who died and the other might joyn in an Action for the Rent And as this Case was The opinion of the whole Court was That the Executor and the other might joyn in one Action for the Rent or sever in Action at their pleasures But if the Lease had been made for life rendring Rent The Court was cleer of opinion that they ought to sever in Actions Trin. 20 Jacobi in the Kings Bench. 405. A Man was bounden in a Bond by the name of Edmond and his true name was Edward And an Action of Debt was brought against the Executors of Edmond upon the said Bond who demanded Oyer of the Bond and then pleaded that it was not the Deed of their Testator and issue being thereupon joyned It was found by Inquest in London to be his Deed viz. the Deed of Edmond And it was moved in Arrest of Judgment Quod querens nihil caperet per Billam and so it was resolved and adjudged by the Court Doddridge only being absent And a Case was vouched by Henage Finch Recorder of London to prove this case That it was so adjudged in a Case of Writ of ErError brought in the Exchequer-Chamber in which Case the party himself upon such a Misnosmer and after a Verdict and Judgment given in the same Case did reverse the Judgment for this Error Mich. 14 Iacobi in the Kings Bench. 406. VESEY's Case VVIlliam Vesey was indicted for erecting of a Dove-house And Serjeant Harvey moved That the Indictment was insufficient the words were That the Defendant erexit Columbare vi armis ad commune nocumentum c. and that he was not Dominus Manerii nes Rector Ecclesiae And the Indictment was quashed because it was not contained in the Indictment that there were Doves in the Dove-cote For the meer erecting of a Dove-cote if there be no Doves kept in it it is no Nusans as it was holden by the Justices Mich. 15 Iacobi in the Kings Bench. 407 Sir WILLIAM BRONKER's Case SIR William Bronker brought an Action upon the Case for slanderous words And he shewed in his Declaration how that he was a Knight and one of the Gentlemen of His Majesties Privy-Chamber And that the Defendant spake of him these scandalous words viz. Sir William Bronker is a Cosening Knave and lives by Cosenage Which was found for the Plaintiffe In arrest of Judgment it was moved that the words were not actionable And so it was adjudged per Curiam Pasch 21 Iacobi in the Kings Bench. 408. YATE and ALEXANDER's Case YAte brought an action upon the Case against Alexander Attorney of the Kings Bench and declared That the Plaintiffe in an action of Debt brought against Alexander the Defendant who was Executor to his Father had Judgment to recover against him as Executor and that he sued forth a Fieri facias to the Sheriffe to have Execution and that before the Sheriffe could come to levy the debt and serve the
puisne or the lesser Debt and although the Debtor be able and sufficient to pay both Debts viz. the Kings Debt and the Debt owing to the Subject yet the Kings Debt is to be first paid Now to apply these cases to the Case in question Here is a Subject who is indebted to the King And I say That the Lands which such a Debtor hath in his power and dispose although he hath not any Estate in the Lands shall be liable to pay the Debt to the King And I say That Sir Christopher Hatton had a Fee in the Mannors and Lands in this case And although he did convey them bona fide yet untill his death by reason of the Proviso of Revocation they were extendable Trin. 24. E. 3. Rot. 4. Walter de Chirton Customer who was indebted to the King for the Customs purchased Lands with the Kings monies and caused the Feoffor of the Lands to enfeoffe certain of his friends with an intent to defraud and deceive the King and notwithstanding he himself took the profits of the Lands to his own use And those Lands upon an Inquisition were found and the values of them and retorned into the Exchequer and there by Judgment given by the Court the Lands were seized into the Kings hands to remain there untill he was satisfied the Debt due unto him And yet the Estate of the Lands was never in him But because he had a power viz. by Subpena in Chancery to compell his Friends to settle the Estate of the Lands upon him therefore they were chargeable to the Debt You will say perhaps there was Covin in that Case But I say that neither Fraud Covin nor Collusion is mentioned in the Report in Dyer 160. C. 11. par 92. And that Case was a harder Case then our Case is For Walter de Chirton in that Case was never seised of the said lands But in our Case Sir Christopher Hatton himself had the lands And when he had the lands he was assured of the Office although he had not the possession of it For he was sure that no other could have it from him and no other could have it but himself And for another cause our Case is a stronger Case then the Case of Walter de Chirton For Chirton had no remedy in Law to have the lands but his remedy was only in a Court of Equity and a remedy in Consc ' onely But in our Case Sir Christopher Hatton had a time in which he might let the land to passe and yet he had a power to pull it back again at his pleasure So as he had the disposition of it but before the alteration of the uses he dyed And if he had been living being indebted to the King the King might have extended the lands because that then he had the possession of them There were two Considerations which moved Sir Christopher Hatton to Convey the Lands the first was honorable viz. For the payment of his Debts the second was natural viz. For the preferment of his Children Although the Conveyance of the Lands for payment of his Debts was but for years yet the same was too short like unto a Plaister which is too short for the sore For the Covenanters were not his Executors and so they were not liable to Debts And although he be now dead and cannot revoke the former uses yet he had the power to revoke the uses during his life And so he was chargeable for the Debt due to the King Tanfield Chief Baron agreed with Justice Dodderidge in all as before And he said That all powerful and speedy courses are given unto the King for the getting in of his Revenues and therefore he said he had the said Prerogatives as have been recited And in 25 E. 3. in libro rubro in the Exchequer there the Foundations of the said Prerogatives do appear If a common person arrest the body in Execution he shall not resort to the lands contr to Blumfields Case C. 5. par The course of the Exchequer makes a Law every where for the King If any Officer be indebted unto the King and dyeth the course of the Exchequer is For to call in his Executors or the Heir or the Terre-Tenants to answer the Debt and if he hath no lands then a Writ issueth out of the Exchequer to know what goods he had and to whose hands they be come All Inquisitions concerning Lands in the like Cases are Habuit vel seisitus and not that he was seised onely The word Habuit is a large word and in it is contained a disposing power But in this Case Sir Christopher Hatton had a power every day to revoke the uses And when he had once revoked them then was he again as before seisitus 7 H. 6. in the Exchequer the Kings Farmor had Feoffees to his use and dyed indebted to the King And upon an Inquisition it was found that Habuit for he had them in his power by compelling his Feoffees by Equity in Chancery and therefore it was adjudged that the King should have the Lands in the Feoffees hands in extent But in this case Sir Christopher Hatton might have had the Lands in him again without compulsion by a Court of Equity for that he had power to revoke the uses in the Conveyance at his pleasure Mich. 30. H. 6. rot in the Exchequer A Clark of the Court was assigned to receive monies for the King who had Feoffees of lands to his use And the lands were found and seised for the Kings monies by force of the word Habuit 32 H. 6. Philip Butler's Case who was Sheriffe of a County being indebted to the King his Feoffees were chargeable to the Kings debt by force of the word Habuit For habuit the lands in his power 6 E. 4. Bowes Case acc ' 34 H. 6. A widow being indebted to the King her Feoffees were chargeable to pay the Kings debt because she had power of the lands It being found by Inquisition that habuit 1 R. 3. the like Case And 24 Eliz. in Morgan's Case it was adjudged That lands purchased in the names of his Friends for his use were extended for a debt due by him to the King Hobart Lord Chief Justice of the Common Pleas argued to the same purpose and agreed with the other Justices and he said in this case it was not material whether the Inquisition find the Deed to be with power of Revocation For he said that the Land is extended and that the extent remains good untill it be avoided And he said that a revocable Conveyance is sufficient to bind the Parties themselves but not to bind the King but the Lands are lyable into whose hands soever they come When a man is said to forfeit his body it is not to be intended his life but the freedom of his body Imprisonment At the Common Law a Common person could neither take the bodie nor the Lands in Execution But yet at the Common Law
thing and shall he be bound by a Conveyance Anno. 16. H. 6. then in the time of Civil War Uses began and of Lands in use the Lord Chief Baron Tanfield in his Argument hath cited diverse cases where the lands in use were subject and lyable to the debt of Cestuy que use in the Kings Case and so was it untill the Statute of 27. H. 8. of Uses was made Babbington an Officer in the Exchequer had lands in the hands of Feoffees upon Trust and a Writ issued out and the lands were extended for the Debt of Babbington in the hands of his Feoffees Sir Robert Dudley having lands in other mens hands upon Trusts the lands were seized into the Kings hands for a contempt and not for debt or damages to the King And in this Case although that the â—nquisition do find the Conveyance but have not found it to be with power of Revocation yet the Land being extended it is well extended untill the contrary doth appear and untill the extent be avoided by matter of Record viz. by Plea as the Lord Chief Baron hath said before Ley Chief Justice of the Kings Bench argued the same day and his Argument in effect did agree with the other Justices in all things and therefore I have forborne to report the same at length And it was adjudged That the Extent was good and the Land well decreed accordingly Pasch 21 Jacobi in the Exchequer Chamber 417. The Lord SHEFFIELD and RATCLIFF'S Case IN a Writ of Error brought to reverse a Judgment given in a Monstrans de Droit in the Court of Pleas The Case was put by Glanvile who argued for Ratcliffe the Defendant to be this 2 E. 2. Malew being seised of the Mannor of Mulgrave in Fee gave the same to A. Bigot in tail which by divers discents came to Sir Ralph Bigot in tail Who 10 Jannarii 6 H. 8. made a Feoffment unto the use of â—is last Will and thereby after his Debts paid declared the use unto his right heirs in Fee and 9. H. 8. dyed The Will was performed Francis Bigot entred being Tenant in tail and 21 H. 8. made a Feoffment unto the use of himself and Katherine his wife and to the use of the heirs of their two bodies Then came the Statute of 26 H. 8. cap. 13. by which Tenant in tail for Treason is to forfeit the Land which he hath in tail Then the Statute of 27 H. 8. of Uses is made Then 28 H. 8. Francis Bigot did commit Treason And 29 H. 8. he was attainted and executed for the same Anno 31 H. 8. a private Act of Parliament was made which did confirm the Attaindor of Francis Bigot and that he should forfeit unto the King word for word as the Statute of 26 H. 8. is saving to all strangers except the Offendor and his heirs c. 3 E. 6. The heir of Francis Bigot is restored in blood Katherine entred into the Mannor and dyed seised 8 Eliz. their Issue entred and married with Francis Ratcliffe and had Issue Roger Ratcliffe who is heri in tail unto Ralph Bigot And they continue possession untill 33. Eliz. And then all is found by Office and the Land seised upon for the Queen who granted the same unto the Lord Sheffield Francis Bigot and Dorothy die And Roger Ratcliffe sued a Monstrans de Droit to remove the Kings hands from off the lands and a Scire facias issued forth against the Lord Sheffield as one of the Terre-Tenants who pleaded all this special matter and Judgment was thereupon given in the Court of Pleas for Roger Ratcliffe And then the Lord Sheffield brought a Writ of Error in the Exchequer-Chamber to reverse the said Judgment And Finch Serjeant argued for the Lord Sheffield that the Judgment ought to be reversed And now this Term Glanvile argued for Roger Ratcliffe that the Judgment given in the Court of Pleas ought to be affirmed There are two points The first If there were a Right remaining in Francis Bigot and if the same were given unto the King by the Attaindor and the Statute of 31 H. 8. Second If a Monstrans de Droit be a proper Action upon this matter which depends upon a Remitter for if it be a Remitter then is the Action a proper Action The Feoffment by Ralph Bigot 6 H. 8. was a Discontinuance and he had a new use in himself to the use of his Will and then to the use of his Heirs Then 9 H. 8. Ralph Bigot dyed And then Francis Bigot had a right to bring a Formedon in the Discendor to recover his estate tail 21 H 8. then the point ariseth Francis Bigot having a right of Formedon and an use by force of the Statute of 1 R. 3. cap. 1. before the Statute of 27 H. 8. by the Feoffment he had so setled it that he could not commit a forfeiture of the estate tail When a man maketh a Feoffment every Right Action c. is given away in the Livery and Seisin because every one who giveth Livery giveth all Circumstances which belongs to it For a Livery is of that force that it excludes the Feoffor not only of all present Rights but of all future Rights and Tytles v. C. 1. par 111. and there good Cases put to this purpose 9 H. 7. 1. By Livery the Husband who was in hope to be Tenant by Courtesie is as if he were never sised 39 H. 6. 43. The Son disseiseth his Father and makes a Feoffment of the lands the Father dyeth the hope of the heir is given away by the Livery It was objected by Serjeant Finch 1. Where a man hath a right of action to recover land in Fee or an estate for life which may be conveyed to another there a Livery doth give away such a Right and shall there bind him But an estate in tail cannot be transferred to another by any manner of Conveyance and therefore cannot be bound by such a Livery given I answer It is no good Rule That that which doth not passe by Livery doth remain in the person which giveth the Livery 19 H. 6. Tenant in tail is attainted Office is found The estate tail is not in the King is not in the person attainted but is in abeyance So it is no good Rule which hath been put When Tenant in tail maketh a Feoffment Non habet jus in re neque ad rem If he have a Right then it is a Right of Entre or Action but he cannot enter nor have any action against his own Feoffment 19 H. 8. 7. Dyer If Discontinuee of Tenant in tail levieth a Fine with proclamations and the five years passe and afterward Tenant in tail dyeth his issue shall have other five years and shall be helped by the Statute for he is the first to whom the right doth accrue after the Fine levied for Tenant in tail himself after his Fine with Proclamations hath not any right But if Tenant in tail be
then the Court is to abate the Petition but after Judgment to find such a fault he must have a Scire facias and not a new Petition and in our Case there was none who gave in such matter for the King Now I come to the Statute of 31. H. 8. The particular Act for the Attainder of Francis Bigot and that he should forfeit all such Lands c. Conditions Rights c. in Fee and Fee tail saving c. and as the lands of Francis Bigott stood stated at the time of the making of this Act of 3. H. 8. the Statute did not extend to him to make him forfeit any thing In the Statute of 33. H. 8. Cap. 20. there were as many words as in this Statute of 31. H. 8. and many Cases upon the Statute of 33. H. 8. are adjudged upon the words shall lose and forfeit There is a difference betwixt an Act of Assurance and an Act of Forfeiture If the words be That the King shall enjoy and have it is then an Act of Assurance and the lands are given to the King without Office but by an Act of Forfeiture the Lands are not in the King without Office found Exceptio firmat regulam but our Case is out of the Rule Savings in Acts of Parliaments were but of late days 1. E. 4. there was a private Act A Petition was preferred against divers in Parliament for sundry misdemeanours and it was Enacted that they should forfeit unto the King and his heirs c. in that Act there was no exception of saving for it was but a forfeiture of their Rights and Savings were but of late times Trin. 8. H. 8. Rot. 4. A Petition of Right in the Chancery upon that was a plea which was after the Attainder of the Duke of Suffolk That the Duke did disseise him it was shewed that the Attainder was by Parliament and he shewed no saving to be in the Statute in the Petition and yet it was well enough Com. 552. Wyat Tenant in tail of the Gift of the King made a Feoffment and by Act of Parliament 2 Mariae was attainted of Treason by which he was to forfeit c. as in our Case I answer That within two years after that Judgment upon solemn argument it was adjudged contrarie Com. 562. It was objected that in that Case a Writ of Error was brought Com. 562. and that the Judgement was affirmed in the Case of Walsingham I answer that the same was by reason of the Plea in Barr And Com 565. there Plowden confesseth that the Judges were not agreed of the matter in Law and the Lands in question in Walsingams Case do remain with Moulton and at this day are enjoy'd contrary to the Judgment given in Walsinghams Case It was objected That although this Act of 31. H. 8. was made after the Attainder yet that it should relate to all the Lands which Francis Bigot had at the time of the Treason committed I answer That this Act of 31. H. 8 is but a description what Lands he shall forfeit viz. all the Lands which he had at the time of the Treason committed The second Point is upon the Remitter of Roger Ratcliff before the Inquisition for there was a discent to Roger Ratcliff When Tenant in Tail is attainted of Treason his blood is not corrupted C. 9. part 10. Lumleys Case And the Statute of 33. H. 8. is the first Statute which vests Lands forfeit for Treason in the King without Office found So as according to the Lord Lumley's Case C. 3. part 10. before this Statute of 33 H. 8. the Land did discend to the issue in tail The Rule of Nullum tempus occurrit Regi is to be meant for the preserving of the Kings Right but not to make the King to do wrong Com. 488. there the Remitter is preferred before the King 49. E. 3. 16. there the Devise of a Common person was preferred before the Right of the King 3. H. 7. 2. the Lord Greistock's Case The Dean of York did recover against him and before Execution the Lord died his heir within age the Dean shall have his Execution notwithstanding that the King hath right to have the Ward A fortiori a Remitter shall be preferred before the Kings Title C. 7. part 28. The Rule Nullum tempus occurrit Regi is to be intended when the King hath an Estate or Interest certain and permanent and not when his Interest is specially limited when and how he shall take it and not otherwise The third Point was Whether Ratcliff hath brought his proper Action The words of the Act of 2 E. 6. cap. 8. which giveth the Monstrans de Droit are to be considered A Remitter is within the words of the Act. Divers Errors were assigned by the other side for matter of Form 1. Because the Venire facias want these words tam milites quam alios Sheffield being a Noble man and a Peer of the Realm It appeareth by the Register 7. that the same was the ancient Form in every common persons Case but of late that Form was left 2. Admit that it were a good Exception then it ought to have been taken by way of Challenge as it appeareth 13. E. 3. Challenge 115. Dyer 107. 208. 3. The Statute of 35. H. 8. Cap. 6. makes a new Law and prescribes a Form Precipimus c. quod Venire facias coram c. 12 Liberos Legales homines c. and then if it ought to be by the Register tam milites quam alios yet here is a new Statute against it And by the Statute of 2. E. 6. Cap. 32. this Statute of 35 H. 8. is made perpetual And by the Statute of 27. Eliz. Cap. 6. the Statute of 35. H. 8. is altered in parvo and augmented in the worth of the Jurors and by the Statute of 18. Eliz. Cap. 14. It is Enacted That after Verdict c. the Judgment thereupon shall not be stayed or reversed by reason of any default in Form or lack of Form or variance from the Register The second Error assigned was because that there are two Venire facias and two Distringas after that Issue was joyned The Lord Sheffield sueth unto the King to have the first Venire facias and first Distringas quashed and it was quashed with Ratcliff's consent Secondly admit there were two Venire facias yet it ought to be intended that the proceedings was but upon one of them and that the best M. 17. Jacobi in the Common Pleas Bowen and Jones's Case In Error upon a Recovery in Debt there were two Originals certified and there the one was good and the other naught the Judges did take it that the Judgment and proceedings were upon the good Original and the Judgment was affirmed in the Kings Bench M. 15 H. 8. Rott 20. the same Case Two Originals one bearing date after the Judgment the other before the Judgment and upon a Writ of Error brought the
but in Francis Bigot which may be regained in due time Dyer 340. there was Scintilla juris as here in our Case 19 H. 8. 7. Where Tenant in tail maketh a Feoffment and the Feoffee levieth a fine and five years pass there it is said that the Issue in tail shall have five years after the death of Tenant in tail who made the Feoffment and the reason is because he is the first to whom the right doth discend This Case was objected against me yet I answer that Tenant in tail in that Case hath right but he cannot claim it by reason of his own Feoffment he cannot say he hath right but another may say he hath right In our Case Francis Bigot cannot say he hath a Right in him but another may say he hath a Right It is like where Tenant in Fee taketh a Lease for years by Deed Indented of his own Lands He during the years cannot say that he hath Fee yet all other may say that he hath the Fee C. 4. part 127. The King shall avoid the Feoffment for the benefit of a Lunatique which Feoffment the Lunatique had made and shall not the King avoid a Feoffment which a Lunatique hath made for his own benefit viz for the benefit of the King himself I conceive that he shall Secondly Admit the right be in the person viz. in Francis Bigot yet they object that it is a right of Action and so not forfeited If this right be in the person at the time of the Attainder it shall be forfeited if it be not in his person but in Nubibus yet it shall be forfeited Tenant in tail makes a Feoffment unto the use of himself and his wife in tail if the old right of entail rest or not in his person it is forfeited to the King 34 Eliz. this very Point was then adjudged Where Tenant in tail before the Statute of 27 H. 8. of Uses made a Feoffment unto the use of himself and his wife in tail It was resolved upon mature deliberation by all the Judges of England that the old Estate tail was in such case forfeited for Treason Set this Judgment aside yet it rests upon the Statute of 26 H. 8. A general Act for forfeiture for Treason and the particular Act of 31 H. 8. which was made for the particular Attaindor of Francis Bigot I will argue argue only upon the Statute 26 H. 8. which hath three clauses First to take away Sanctuary Secondly to provide that no Treason be committed and the Offender punished The third which clause I am to deal with which giveth the forfeiture of Lands of Inheritance c These three clauses do depend upon the Preamble It was high time to make this Statute For when H. 8. excluded the Pope he was to stand upon his guard And that year of 26 H. 8. there were five several Insurrections against the King therefore it was great wisdom to bridle such persons King Ed. 6. and Queen Mary repealed divers Statutes for Treason and Felony yet left this Statute of 26 H. 8. to stand in force Anno 5 E. 6. cap. 5. this Statute of 26 H. 8. somewhat too strict was in part repealed viz. That the Church lands should not be forfeited for the Treason of the Parson This third branch doth insist upon a Purview aâ—d a Saving and both agree with the Preamble The Purview is ample Every Offender and Offenders of any manner of High Treason shall forfeit and lose c. I observe these two words in the Statute shall Forfeit those things which are forfeitable and Lose those things which are not forfeitable But it shall be lost that the heir of the Offender shall not find it shall Forfeit and lâ—se to the King his heirs and successors for ever so it is a perpetual forfeiture shall forfeit all his Lands which includes Use Estate and Right by any right title or means So you have Estate Right Title and Use Here Francis Bigot shal forfeit the Castle and Mannor of Mulgrave unto the King his heirs and Successors and he must forfeit the Land Right Title and Use otherwise it cannot be to the King for ever and what is saved to strangers all shall be saved and what will you not save to the Offender and his heirs all his Lands Right c. as was saved to strangers It was objected that it was not an Act of Assurance but an Act of Forfeiture which is not so strong as an Act of Assurance I do not doubt of the difference but how much will that difference make to this Case doth the Statute goe by way of Escheat it doth not but in case of Petty Treason Land shall Escheat but when the Statute of 25 E. 3. speaketh of High Treason the words of the said Statute are Shall forfeit the Escheat to the King But is the Right devided from the King Truely no the word Forfeit take it in nomine or in natura is as strong a word as any word of Assurance Alienare in the Statute of West 2. cap. 1. Non habeant illi potestatem alienandi so non habent illi potestatem forisfaciendi is in the nature of a Gift Com. 260. Forfeiture is a gift in Law Et fortior est dispositio legis quam hominis and so as strong as any assurance of the partie If a Statute give the Land to the King then there needeth not any Office 27 H. 8. Br. Office Com. 486. The Right vests before Office It was objected that the statute of 26 H 8. doth not extend to a right of Action but to a right of Entrie The purpose of this Act of 26 H. 8. is not to attaint any particular person as the Statute of 31 H. 8. was made for the particular Attaindor of Francis Bigot 5 E. 4. 7. Cestuy que use at the Common Law did not forfeit for Felony or Treason but by this Act of 26. H. 8. Cestuy que use shall forfeit both Use and Lands out of the hands of the Feoffees 4 E. 3. 47. 4 Ass 4. The husband seised in the right of his wife at the Common Law for Treason shall not forfeit but the profits of the lands of his wife during his life and not the Freehold it self but by this Act of 26 H. 8. the Freehold it self is forfeited 18 Eliz. in the Common Pleas Wyats Case C. 10. Lib. Entries 300. And if the Statute of 26 H. 8. had had no saving all had been forfeited from the wife 7 H. 4. 32. there it is no forfeiture yet by this Statute it is a forfeiture A right of Action shall not Escheat 44 E 3. 44 Entre Cong 38 C. 3 part the Marquess of Winchesters Case and Bowtiâ—s Case and C 7. part Inglefieldâ—s Case A right of Action per se shall not be forfeited by the Rules of the Common Law nor by any Statute can a right of Action be transferred to another but by the Common Law a right of Action may
be quashed and exonerated and discharged in the possession of the King For it is out of the Rule which is in C. 10 part 48 for the cause of quieting and repose of the Terre-Tenants otherwise it would be a cause of Suits But all Rights Tythes Actions c. might for the same reasons viz. for the quiet of the Terre-Tenants and the avoidance of Suits and Controversies be released to the Terre-Tennants By the same reason here the right of Action of Francis Bigot shall be discharged and exonerated by this forfeiture viz. for the quiet and repose of the Terre-Tenants for the Law delights in the quiet and repose of the Terre-Tenants If Francis Bigot had granted a Rent the ancient right of the tail had been charged C. 7. part 14. Where Tenant in tail makes a lease for life and grants a Rent charge and Tenant for life dieth he shall not avoid his charge although he be in of another Estate because he had a defeisible possession and an ancient right the which c. so as they could not be severed by way of conveyance and charge and no lawfull act Then I admire how he will sever this from himself by his unlawfull act viz. the Feoffment the discontinuance Lit. 169. If a man commit Treason he shall forfeit the Dower of his wife yet he doth not give the dower of his wife but it goes by way of discharge in those Lands 13 H. 7. 17. Tenant by the Curtesie in the life of his wife cannot grant his Estate of Tenant by the Curtesie to another but yet he for Felony or Treason may forfeit it viz. by way of discharge A Keeper of a Park commits Treason there the King shall not have the Office of Keeper for a forfeiture because it is an Office of trust but if he had been Keeper of the Kings Park and had been attainted there he should forfeit his Office by way of discharge and exoneration This Statute of 26 H. 8. hath been adjudged to make Land to revert and not strictly to forfeit Austin's Case cited in Walsingham's Case Tenant in tail the reversion in the King the Tenant makes a Lease for years and dies the issue accepts of the Rent and commits Treason the Lease is avoided for the King is not in by forfeiture by the Statute of 26 H. 8. but by way of Reveter by the Statute of 26 H. 8. It was objected that if Tenant in tail maketh a Feoffment and takes back an Estate for life and is attainted of Treason that he shall not forfeit his old right I agree that Case For indeed it is out of the Statute of 26 H. 8. which speaks of Inheritance and in that Case the Tenant hath but a Freehold The Statute of 26 H 8. saith that it shall be forfeited to the King his heirs and Successors And if in our Case the old right should remain then it should be a forfeiture but during the life of the Testator When the Common Law or Statute Law giveth Lands it gives the means to keep them as the Evidences So here the King is to have by force of this Statute of 26 H. 8. the Evidences The forfeiture of right is expresly within the Statute of 26 H. 8. as the forfeiture of Estate as by any right title or means for the old Estate tail is the means of Estates since 6 H. 8. And if you will take away the Foundation the Building will fall For all the Estates are drawn out of the old Estate tail The Statute of 26 H. 8. is not an Act of Attaindor for none in particular is attainted by the Act but the Act of 31 H. 8. doth attaint Francis Bigoâ— in particular It was objected that here in this case there needed not to be any express Saving I answer that there are divers Statutes of Forfeitures yet the Statutes have Savings in them so as it seems a saving in such Acts were not superfluous but necessary The Act of 33 H. 8. for the attainder of Queen Katharine there is a saving in the Act and yet an Act of Forfeiture Dyer 100. there the land vested in him in the Remainder by force of a saving in the Act so the saving is not void but operative C. 3. part Dowlies Case vid. the Earl of Arundels Case there the saving did help the wife so it appears savings are in Acts of Parliaments of Forfeiture and Acts of Attaindor Dyer 288 289. The Bishop of Durham had Jura Regalia within his Diocese and then the Statute of 26 H. 8. came now whether the Forfeiture for Treason should be taken away from the Bishop by reason of that Statute and given to the King was the doubt It was holden that of new Treasons the Bishop should not have the Forfeitures for those were not at the Common Law as the Forfeitures of Tenant in tail but that he should have the Forfeitures of Lands in Fee within his Diocese and that he had by force of the saving in the Statute so that a Saving is necessary and operative Com. Nichols's Case there Harpers opinion that there needs no saving to strangers but yet a saving is necessary for the Partie and the Issue if they have any thing as well as strangers vid. C. 3. part Lincoln Colledg Case It is the Office of a good Interpreter to make all the parts of a Statute to stand together Com. 559. By these general words Lose and Forfeit and by excluding of the heir in the saving the heir is bound So the Judges have made use of a Saving for it is operative 2 Ma. Austin's Case cited in Walsinghams Case Tenant in tail the Reversion in the Crown Tenant in tail made a Lease for years and levied a Fine to the King the King shall not avoid the Lease for the King came in in the Reverter but in such Case if he be attainted of Treason then the King shall avoid the Lease So a Statute of Forfeiture is stronger then a Statute of Conveyance By this Statute of 26 H. 8. Church Land was forfeited for so I find in the Statute of Monasteries which excepts such Church Lands to be forfeited for Treason Dyer Cardinal Poole being attained did forfeit his Deanary and yet he was not seised thereof in jure suo proprio for it was jus Ecclesiae 27 E. 3. 89. A writ of Right of Advowson by a Dean and he counteth that it is Jus Ecclesiae and exception that it is not Jus suae Ecclesiae But the Exception was disallowed for the Jus is not in his natural capacitie but in his politique capacitie and yet by this Statute of 26 H. 8. such Church Land was forfeited for Treason this is a stronger Case then our Case Vide C. 9. part Beaumont's Case Land is given to husband and wife in tail and the husband is attainted of Treason the wife is then Tenant in tail yet the Land is forfeited against the issue although it be but a possibility for the whole estate
is in the wife but the cause thereof is because it was once coupled with a possession C. 7. part Nevils Case There was a question whether an Earldom might be entailed and forfeited for Treason which is a thing which he hath not in possession nor use but is inherent in the blood And there resolved that the same cannot be forfeited as to be transferred to the King but it is forfeited by way of discharge and exoneration 12 Eliz. Dyer the Bishop of Durhams Case There if it had not been for the saving the Regal Jurisdiction of the Bishop had been given to the King by the Statute of 26 H. 8. This Statute of 26 H. 8. was made for the dread of the Traitor For the times past saw how dangerous Traitors were who did not regard their lives so as their lands might discend to their issue It was then desperate for the King Prince and Subject For the time to come it was worse The Law doth not presume that a man would commit so horrid an act as Treason so it was cited by Mr. Crook who cited the case That the King cannot grant the goods and lands of one when he shall be attainted of Treason because the Law doth not presume that he will commit Treason If the Law will not presume it wherefore then were the Statutes made against it If the Land be forfeited by the Statute of 26 H. 8. much stronger is it by the Statute of 31 H. 8. But then admit there were a Remitter in the Case yet by the Office found the same is defeated Without Office the Right is in the King Com. 486. c. 5. part 52 where it is said There are two manner of Offices the one which vests the estate and possession of the Land c. in the King where he had but a Right as in the case of Attaindor the Right is in the King by the Act of Parliament and relates by the Office Com. 488. That an Office doth relate 38 E. 3. 31. The King shall have the mean profits The Office found was found in 33 Eliz. and the same is to put the King in by the force of the Attaindor which was 29 H. 8. and so the same devests the Remitter Tenant in tail levieth a Fine and disseiseth the Conusee and dyeth the issue is remitted then proclamations pass now the Fine doth devest the Remitter C. 1. part 47 Tenant in tail suffereth a common Recovery and dyeth before Execution the issue entreth and then Execution is sued the Estate tail is devested by the Execution and so here in our Case it is by the Office C. 7. part 8. Tenant in tail maketh a Lease and dyeth his wife priviment ensient without issue the Donor entreth the Lease is avoided afterwards a Son is born the Lease is revived Com. 488. Tenant in capite makes a Lease for life rendring rent and for non-payment a re-entry and dyeth the rent is behind the heir entreth for non-payment of the rent and afterwards Office is found of the dying seised and that the land is hoâ—den in capite and that the heir was within age In the case the Entry for the Condition broken was revived and the Estate for life revived 3 E. 4. 25. A Disseisor is attainted of Felony the Land is holden of the Crown the Disseisee entreth into the Land and afterwards Office is found that the Disseisor was seised the Remitter is taken out of the Disseisee which is a stronger case then our Case for there was a right of Entire and in our Case it is but a right of Action which is not so strong against the King And for these Causes he concluded That the Judgment given in the Court of Pleas ought to be reversed And so prayed Judgment for the Lord of Sheffield Plaintiffe in the Writ of Error This great Case came afterwards to be argued by all the Judges of England And upon the Argument of the Case the Court was divided in opinions as many having argued for the Defendant Ratcliffe as for the Plaintiffe But then one new Judge being made viz. Sir Henry Yelverton who was before the Kings Sollicitor his opinion and argument swayed the even ballance before and made the opinion the greater for his side which he argued for which was for the Plaintiffe the Lord Sheffield And thereupon Judgment was afterwards given That the Judgment given in the Court of Pleas should be reversed and was reversed accordingly And the Earl Lord Sheffield now Earl of Mulgrave holdeth the said Castle and Mannor of Mulgrave at this day according to the said Judgment Note I have not set here the Arguments of the Judges because they contained nothing almost but what was before in this Case said by the Councel who argued the Case at the Bar. Pasch 21 Jacobi in the Kings Bench. 418. IT was the opinion of Ley Chief Justice Chamberlain and Dodderidge Justices That a Defendants Answer in an English Court is a good Evidence to be given to a Jury against the defendant himself but it is no good Evidence against other parties If an Action be brought against two and at the Assises the Plaintiffe proceeds only against one of them in that case he against whom the Plaintiffe did surcease his suit may be allowed a Witnesse in the Cause And the Judges said That if the Defendants Answer be read to the Jury it is not binding to the Jury and it may be read to them by assent of the parties And it was further said by the Court That if the party cannot find a Witnesse then he is as it were dead unto him And his Deposition in an English Court in a Cause betwixt the same parties Plaintiffe and Defendant may be allowed to be read to the Jury so as the party make oath that he did his endeavour to find his Witnesse but that he could not see him nor hear of him Pasch 21 Iacobi in the Kings Bench. 419. THe Husband a wife seised of Lands in the right of the wife levied a Fine unto the use of themselves for their lives and afterwards to the use of the heirs of the wife Proviso that it shall and may be lawfull to and for the husband and wife at any time during their lives to make Leases for 21 years or 3 lives The wife being Covert made a Lease for 21 years And it was adjudged a good Lease against the husband although it was made when she was a Feme Covert and although it was made by her alone by reason of the Proviso Pasch 21 Jacobi in the Common-Pleas 420. NOte that Hobart Chief Justice said That it was adjudged Mich. 15 Jacobi in the Common-Pleas That in an Action of Debt brought upon a Contract the Defendant cannot wage his Law for part and confesse the Action for the other part And it was also said That so it was adjudged in Tart's Case upon a Shop-book And vide 24 H. 8. Br. Contract 35. A Contract cannot be divided
house and then by his Will deviseth his houses called the Swan The rooms of the Lyon which A. occupied with the Swan shall pass by the Devise although of right those rooms do belong to the Lyon-house Pasc 36 Eliz. Ewer and Heydon's Case A man hath a house and divers lands in W. and also a house and lands in D. And by his Will he deviseth his house and all his lands in W. D. there the house which is in D. doth not pass for his intent and meaning plainly appears that his house in D. doth not pass But if he had devised all his lands in W. and had not spoken of the house the house had passed A Case was in the Common-Pleas betwixt Hyam and Baker The Devisor had two Farms and occupied parcel of one of the Farms with the other Farm and devised the Farm which he had in his possession The part of the other Farm which he occupied with it did pass with the Farm devised Dodderidge Justice The Devise is in the Case at Bar All his Farm called Locks to his eldest Son and all his Farm called Brocks to his younger Son And the Land in question was purchased long after that the Devisor purchased Brocks but that Land newly purchased was not expresly named in the Will and therefore it shall discend to the heir viz. the eldest Son Land is not parcel of a house and in strictness of Law cannot appertain to a house Yet Land is appertaining to the Office of the Fleet and the Rolls but that is to the Office which is in another nature then the Land is For the Land newly purchased the Jury did not find the same to be usually occupied with Brocks it shall not pass with Brocks although it be occupied together with Brocks I do occupie several Farms together and then I devise one of the Farms called D. and all the lands to the same belonging the other Farms shall not pass with it although they be occupied all together Haughton Justice What time will make lands to belong unto a house All the profits of the lands used with the house for a small time will serve the turn Ley Chief Justice There are two manner of belongings One belonging in course of Right and another belonging in case of Occupation To the first belonging there ought to be Prescription viz. time out of mind But in our Case Belonging doth borrow some sense from occupying for a year or a time And then another year to occupie it will not make it belonging in the later sense In strictness of Law Land cannot be said to belong to a house or land but in vulgar reputation it may be said belonging And in such case in case of grant the Land will not pass as appertaining to Land C. 4. part Terringham's Case But in our Case it is in case of a Will Usually occupied is not to be meant time out of mind Here other lands were belonging to Brocks and so the words of the Will are satisfied But it might have been a Question if there had been no other lands belonging to it Dodderidge Justice If the Devisor had turned all the profits thereof to Brocks then it had passed by the Will Ley Chief Justice This occupying of it promiscuously doth make it belong to neither At another day Ley Chief Justice said Here is nothing which makes it appear to us that this Land doth belong to Brocks For the Jury find not that it was occupied either with Brocks or Locks and so this Land belongs to neither of them Dodderidge There is not any Question in the Case It is not found that it doth belong And then we must not judge it belonging The ground of this question ariseth out of the matter of fact and it ought to be found at the least that it is appertaining in Reputation Haughton The Jury find that Knight was seised of Brocks and of lands belonging to it And that he was seised of Locks and of lands belonging to that And lastly they find that he was seised of this Land in question but they do not find that it was any wayes belonging to Brocks or Locks It was adjudged for the Plaintiff and that the Land did not pass by the Devise but that it did discend to the heir Trin. 21 Jacobi in the Kings Bench. 448. SELY against FLAYLE and FARTHING IN an Ejection Firme the Verdict was found for the Defendant Three of the Jurors had Sweet-meats in their pockets and those three were for the Plaintiffe untill they were searched and the Sweet-meats found with them and then they did agree with the other nine and gave their Verdict for the Defendant Haughton Justice It doth not appear that these Sweet-meats were provided for them by the Plaintiffe or Defendant and it doth not appear that the said three Jurors did eat of the Sweet-meats before the Verdict given And so I conceive there is not any cause to make void the Verdict given but the said three Jurors are fineable Dodderidge Justice Whether they eat or not they are fineable for the having of the Sweet-meats with them for it is a very great misdemeanour And now we cannot tell which of the Jurors the three were and because it was not moved before the Jurors departed from the Bar it is now too late to examine the Jurors for we do not know for which three to send for The nine drew the three which had the Sweet-meats to their opinions and therefore there is no cause to stay Judgment But if the three Jurors had drawn the nine other to them then there had been sufficient cause to have stayed the Judgment but as this case is there is no cause And therefore per Curiam Judgment was given for the Defendant according to the Verdict Trin. 21 Iacobi in the Kings Bench 449. NOte It was vouched by George Crook and so was also the opinion of the whole Court That by way of Agreement Tythes may pass for years without Deed but not by way of Lease without a Deed. But a Lease for one year may be of Tythes without Deed. Trin. 21 Iacobi in the Kings Bench. 450. THe Plaintiffe recovered in Debt in the Kings Bench and a Capias ad Satisfaciendum was awarded and immediately upon the awarding of the Capias the Defendant dyed Quaere if in such case an Action of Debt lieth against the special Bail The Executors having nothing a Scire-facias doth not lie against the Bail And in the Common-Pleas in that case the Court was divided two Judges being against the other two Judges Ideo quare Trin. 21 Jacobi in the Kings Bench. 451. LEONARD's Case IN a Scire facias to have Execution of a Recognizance the Case was That a special Supplicavit for the Peace was directed out of the Chancery to A. and B. Justices of the Peace and to the Sheriffe of the County of c. to take a Recognizance of L. M. N. for the Peace and good behaviour and the
certain Farme Lands called Estons and that a Fine was levied of Lands in Eslington Eston and Chilford whereas Eston lay in another Parish appell D. Calthrope argued That the Land in Eston did passe by the Fine although the Parish was not named for that the Writ of Covenant is a personall Action and will lie of Lands in a Hamlet or lieu conus 8. E. 4 6. Vide 4. E. 3. 15. 17. Ass 30. 18. E. 3. 36. 47. E. 3. 6. 19. E. 3. Brev. 767. 2. He said That it was good for that the Plea went only to the Writ in abatement but when a Concord is upon it which admits it good it shall not be avoided afterwards 3. He said That a Fine being a common assurance and made by assent of the parties will passe the Lands well enough 7 E. 4. 25. 38. E. 3. 19. And he vouched Pasch 17. Jacobi in the Kings Bench Rot. 140. Monk and Butlers Case Where it was adjudged that a Fine being but an arbitrary assurance would passe Lands in a Lieu conus and so he said it would do in a common recovery And Richardson said That if a Scire facias be brought to execute such a recovery Nul tiel ville ou Hamlet is no plea and the Fine or recovery stands good Vide 44. E. 3. 21. 21 E. 3. 14 Stone And the opinion of the Court was That the Lands did well passe by the Fine Mich. 8. Caroli in the Kings Bench 509 CAWDRY aud TETLEY's Case CAwdry being a Doctor of Physick the Defendant Praemissorum non ignorans to discredit the plaintiff with his Patients as appeared by the Evidence spake these words to the plaintiffe viz. Thou art a drunken Fool and an Asse Thou wert never a Scholer nor ever able to speak like a Scholer The opinions of Jones and Crook Justices were that the words were actionable because they did discredit him in his Profession and hee hath particular losse when by reason of those words others do not come to him And Palmers Case was vouched Where one said of a Lawyer Thou hast no more Law then a Jackanapes that an Action did lie for the words Contrary if he had said No more Wit And William Waldrons Case was also vouched where one said I am a true Subject thy Master is none that the words were actionable Mich. 4. Caroli in the Kings Bench. 510 The King and BAXTER SIMMON's Case THE Case was this Tenant in tail the Remainder in taile the Remainder in Fee to Tenant in tail in possession Tenant in tail in Remainder by Deed enrolled reciting that he had an estate tail in Remainder Granted his Remainder and all his estate and right unto the King and his Heirs Proviso that if he pay ten shillings at the Receipt of the Exchequer that then the Grant shall be void Tenant in tail in possession suffers a common Recovery and afterwards deviseth the Lands to I. S. and dieth without Issue 18. Jacobi Afterwards 21. Jac. he in the Remainder in tail dieth without issue but no seisure is made nor Offence found that the lands were in the Kings hands Noy who argued for the King The first Point is When Tenant in taile recites his estate and grants all his estate and right to the King and his Heirs what estate the King hath And if by the death of Tenant in tail without issue the estate of the King be so absolutly determined that the Kings possession needs not to be removed by Amoveas manum And he argued That when the Lands are once in the King that they cannot be out of him again but by matter of Record 8. E. 3. 12. Com. 558. And a bare entry upon the King doth not put the King out of possession of that which was once in him And so was it adjudged 34. Eliz. in the Lord Paget's Case as Walter chief Baron said And Noy took this difference 8. H. 5. Traverse 47. and 8. E. 2. Traverse 48. If a particular estate doth determine before that the King seise there the King cannot afterwards seise the Lands But if the King hath once the Lands in his hands or possession there they cannot be devested out of him but by matter of Record So F. Nat. Br. 254. If a man be seised of Lands in the right of his Wife and be outlawed for Felonie for which the Lands come into the Kings hands and afterwards hee who is outlawed dieth there a Writ of Diem clausit extremum shall issue forth which proveth That by the death of the Husband the Lands are not immediately out of the King and setled in the Wife againe 22. E. 4. Fitz. Petition 9. Tenant in taile is attainted of Treason and the Lands seised into the Kings hands and afterwards Tenant in taile dieth without Issue he in the Remainder is put to his Petition which proveth that the Lands are not presently after the death of Tenant in taile without issue out of the King But he agreed the Cases If Tenant in taile acknowledgeth a Statute or granteth a Rent charge and dieth that the Rent is gone and determined by his death as it is agreed in 14. Assisarum The second point argued by Noy was That although that there was not any seizure or Offence found which entituled the King Yet the Deed enrolled in the Chancery which is returned in this Court did make sufficient title for the King as 8. E. 3. p. 3. is The Judges of Courts ought to Judge upon the Records of the same Courts In 8. H. 7. 11. a Bayliff shewed That a Lease was made to T. his Master for life the Remainder to the King in Fee and prayed in Ayd of the King And the Plaintiff in Chancery prayed a Procedendo And it was ruled That a Procedendo should not be granted without examination of the Kings title Thirdly he said That in this case he who will have the Lands out of the possession of the King ought to shew forth his title and in the principall case it doth not appear that the Defendant had any title Vide 10. H. 7. 13. Athowe Serjeant argued for the Defendant he said That in this case the King had an estate but for the life of Tenant in tail And therefore he said That If Tenant in tail grant totum statum suum that an estate but for his own life passeth as Litt. is 145. and 13. H. 7. 10. acc So If Tenant for life the remainder in taile bee and he in the Remainder releaseth to Tenant for life in possession nothing passeth but for the life of Tenant in tail 19. H. 6. 60. If Tenant in tail be attainted of Treason or Felonie and Offence is found and the King seiseth the lands he hath an estate but for the life of Tenant in tail And he cited 35. Eliz. C. 2 part 52. Blithmans case Where Tenant in tail Covenanted to stand seized to the use of himself for his own life and after his death to the use
of his eldest son in tail and afterwards he married a wife and died that the wife should not be endowed for when he had limited the use to himself for his life he could not limit arâ— Remainder over And Edwards Case adjudged in the Court of Wards which was That there was Tenant for life the Remainder in tail he in the Remainder granted his Remainder to I. S. and his heirs and afterwards Tenant for life dyed and then the grantee dyed his heirs within age it was adjudged that the heir of the garntee should not be in ward because the Tenant in tail could not by his Grant grant a greater estate then for his own life But he said That in the principall Case it appeareth That the Tenant in tail in Remainder hath particularly recited his estate And where it appeareth in the Conveyance it self that he hath but an estate in tail a greater estate shall not passe As if Tenant for life granteth a Rent to one and his heirs the same at the first sight seems to be a good Rent in Fee but when it appeareth in the Conveyance that the grantor was but Tenant for life there upon the Construction of the Deed it self it cannot be intended that he granted a Fee but that an estate for life passed only in the Rent Secondly he argued That although the estate in tail in the principall case was an abeyance Yet a Common Recovery would barr such estate tail in abeyance And therewith agreeth C. 2. part Sr Hugh Cholmleys Case 3. He said That the estate was out of the King and vested in the party without any Offence found as 49. E. 3. Isabell Goodcheaps case A man devised houses in London holden of the King in tail and if the Donee dyed without Issue that the Lands should be sold by his Executors The devisee died without Issue The bargain and sale of the Lands by the Executor doth divert the estate out of the King without Petition or Monstrans de Droit So If there be Tenant in tail the Remainder in tail and Tenant in tail â—n Remainder levieth a fine of his Remainder to the King and afterwards dyeth without Issue the Kings estate is determined and there needs no Petition or Monstrans de Droit 4. He said That in the principall case nothing was in the King because it doth not appeare that there was any seisure or Offence found to entitle the King And the Tenant in tail in the Remainder died in the life of King James and then if the Kings estate were then determined as before by the death of the Tenant in taile the King which now is never had any title And hee said that he needed not to shew a greater title then he had And hee took a difference when Tenant in taile doth onely defend or make defence and when he makes title to Lands in the one Case he ought for to shew That the Tenant in taile died without issue and in the other Case not And therefore in the principall case he demanded Judgment for the Defendant The Case was adjourned to another day Mich. 4. Caroli in the Star-Chamber 511 TAILOR and TOWLIN's Case A Bill was preferred against the Defendant for a Conspiracy to Indict the plaintiff of a Rape And the Plaintiff aleadged in his Bill That an Indictment was preferred by the Defendant against the Plaintiff before the Justices of Assise and Nisi prius in the County of Suffolk And did not lay it in his Bill that the Indictment was preferred before the Justices of Oyer and Terminer and Gaole delivery and the same was holden by the Court to be a good Exception to the Bill for that the Justices of Assise and Nisi prius have not power to take Indictments But afterwards upon veiw of the Bill because the Conspiracy was the principall thing tryable and examinable in this Court and that was well layd in the Bill the Bill was retayned and the Court proceded to Sentence And in this Case Richardson Justice said That in Conspiracy the matter must bee layed to be falsè et malitiosè and if it be layed for a Rape It must be layd that there was recens persecutio of it otherwise it will argue a Consent And therefore because the Defendant did not preferre an Indictment of Rape in convenient time after the Rape supposed to be done but concealed the same for half a years time and then would have preferred a Bill of Indictment against the plaintiff for the same Rape he held that the Indictment was false and malitious And Hyde Chief Justice said That upon probable proof a man might accuse another before any Justice of Peace of an Offence and although his accusation be false yet the Accuser shall not be punished for it But where the Accusation is malitious and false it is otherwise and for such Accusation he shall be punished in this Court Trinit 8. Caroli in the King Bench. 513 JONES and BALLARD's Case AN Action upon the Case was brought for these words viz These Jones are proper Witnesses they will sweare any thing They care not what they say They have already forsworn themselves in the Chancery and the Lord keeper Committed them for it Jermyn took Exceptions because it was not said to be in the Court of Chancery nor that it was in any Deposition there taken upon Oath But it was adjudged per Curiam That the Action would lie and Jones Justice said that the Addition in the Chauncery was as much as if he had said he was perjured there And Hâ—msies case was vouâ—hed by him Where one said of a Witness presently after a Tryall at the Guild Hall in London You have now forsworn your self That it was adjudged that the words were actionable Trinit 8. Caroli in the Kings Bench. 513. SYMME's and SMITH's Case A Woman being entituled to copyhold Lands of the Manor of D did covenant upon reasonable request to be made unto her to surrender the Copy-hold Land according to the Custome of the Manor And it was found That the Custome of the Manor is That a surrender may be made either in person or by Letter of Atturney and that the plaintiff did request the woman to make the surrender by a Letter of Atturney which shee refused to do And whether shee ought to surrender presently or might first advise with her Councell was the Question It was argued for the plaintiff that shee ought to do it presently And Munser's Case C. 2. part and 16. Eliz. Dyer 337. Sir Anthonie Cooks Case were vouched that she was to do it at her perill And the Election in this Case was given to the Covenantee and hee might require it to be done either in Court in person or by Letter of Atturney And C. 2. part Sir Rowland Heywards Case and C. 5. part Hallings Case was vouched to that purpose Rolls contrary for the Defendant And he said That the woman was to have convenient time to do it and
171 365 368 369 forfeiture 269 142 365 felling trees 173 174 trespasse brought 174 Corporation 347 dissolved the donor shall have his land again 211 sues 393 Costs 329 345 220 Covenant 38 assignee 162 Executors ibid. 11 12 48 69 70 to build a mill c. there 271 273 175 99 120 333 335 217 to surrender 445 performed 95 The Indenture is void in part 213 Covenant 87 121 cause of things must appear in the Court 401 Countermand 133 County where actions shall be brought 335 of trials 429 Courts-Baron 68 69 Leet 71 Tower Court 145 of Requests 208 216 243 244 Kings Bench and Chancery 357 Acts done in spiritual Courts 33 163 164 181 215 Curia claudenda 127 Custom 5 49 234 140 143 235 267 261 135 of descents 166 127 That the wife may devise to the husband 14 Particular Customes 163 D Day in Court 68 Day materiall to be set down 433 434 Damages recowping in them 53 135 362 jonyt severed 57 assessed 98 343 344 not assessed writ of enquiry 207 not recoverable in account 57 treble 245 to be severed 210 Damage feasan 124 185 Date of a Patent 416 Declaration 251 86 186 in an action upon 1 2. P. M. of distresses 11 upon an Assumpsit 32 Custome 252 particularly 358 insufficient 76 106 343 370 mistakes 345 287 119 160 125 Deed things passe by one deed 129 by deed 354 128 Debt 253 91 336 372 217 210 who liable 294 The Kings debt 289 290 291 292 293 294 295 296 Default 280 Defamation 440 Delivery of deeds 130 of money to anothers use 210 Demand 23 39 67 96 154 337 where to be 331 by writ 74 335 310 the word 398 Demurrer 10 Denizen made 417 Departure 255 122 Depositions 193 Deprivation 259 163 Detaining 8 Detinue 370 Declaration in it 403 Devastation by Executors 30 Devastavit 285 Devise 7 14 15 16 26 40 46 208 266 280 95 99 130 131 299 319 146 351 352 363 to a Colledge c. 394 prevents a remitter c. 411 to a mans heir 412 to one daughter heir of land held by Knights service c. 17 to sell 78 to the Son and heir 94 Dilapidation 259 Diminution 267 alledged 407 Disability the plaintiff cause of it 75 76 Discharge 11 105 ought to shew what 61 Discent 3â—5 312 365 Disclam 25 Discontinuance one issue only found 5 370 within a year 219 Discontinuance by tenant in taile 317 Disseisin 522 of a particular estate 139 Acts of disseisor disseisor sues c. 388 Distresse justified 109 110 187 190 driven out of the Countrey 11 sufficient upon the Land 67 110 Divorce 19 145 Dove-coat a Writ of Right lies of it 259 erected 284 Dower 21 135 145 A Lease is for years 266 Forfeitable by the Husband 323 Averment of seisin of the husband for damage 212 E Ejectione firmae 6 15 18 53 71 72 33â— extra tenet unnecessary 60. lyes 157 Plea 149 Election 258 159 127 140 446 To sue 196 determined ibid. Elegit 257 82 84 Ely jurisdiction there 380 381 Emblements 159 Enclosure in Forrests 167 168 169 170 171 Entry into one house 72 To defeat an estate 9 To fortifie it 25 for forfeiture 175 No trespasse 283 Error 26 258 248 73 80 84 87 372 373 lyes not 261 247. brought 376 377 378 379 439. directed 44. things uncertaine 408. severall 440 Escape 22 27 262 280 125 126 372 403 Fresh suite 177 433 Escheat 78 For Miscreancy 34 Right of action 322 Essoine 235 236 Estates 19 42 51 52 272 A Lease for time 102 103 determined 9 the lesse drowned 52 voidable 9 Estoppel 257 48 147 321 177 384 385 Estranger to a plaint erroneous c. 403 Estovers custome pleaded 235. see 238 97 173 Estrepment 112 164 Estrey 150 151 Eviction 258 Evidence maintaines not the issue 235 see 326 Execution 26 257 258 80 82 83 84 290 295 147 125 126 181 371 372 373 217 Assignment after judgement 161 Taking 372. severall 208 Executors 21 192 See Right Of his own wrong 104 Reteines 217 Order in payment 298 Pleads fully administred 178 Exception in a grant 116 117 118 Time past to take it 100 One releases 431 Exâ—hange 99 100 Exigent 83 217 Excommunication 191. unjust 406 Exposition 16 17 18 36 37 67 71 236 246 198 of Lawes 39 of Statutes 309. and Patents 425 Extent 82 289 311 Extinguishment 24 11 101 314 128 137 211 Lands given by Statute to the King Annuity not extinguished 170 F Falsâ—fying a Recâ—very 271 Falsely imprisoned 124 Fee executed â—â—2 one cannot depend of another â—â—7 Fee-simple 155 Felony not before attainder 267 Cause of arrest for it 406 Feoffments 318 319 320 Fieri facias 276 147 83 Fine for vert c. 277. What Courts may fine c. 381 Fine levied by tenor of it 246 Parish not named 440 Record of it 103 129 307 148 351 179 First fruits 393 Forceable entry 45 Forfeiture of Lessor 105 141. Of a Right 321 See Treason Forgery 62 63 175 Form commanded by Statute must be observed 334 188 189 Formedon 239 302 163 Forrests chases c. 169 Frankalmoigne 396 Franchises 17 262 Usurped 91 Frankmarriage 18 19 20 Franktenement rule of it 9 In an upper chamber 44 Forfeiture 6 318 In case of Treason 34 307 308 310 315 316 Fraudulent conveyances and acts 6 7 285 161 191 192 G. GArdian in soccage 316 Gardens 6 Gavel-kind Plea 55 Grants Words apt 7 Of a common person 8 18 24 25 236 237 270 273 Restriction rule 237 To dig in his waste 18 Generall words 183 One thing passes with another 352 Things passe in grosse 127. By one Deed 129. Of the King 8 35 Where a mistake shall not abridge the fulnesse of words precedent 36 Favoured 37 38 262 136 425. See 414 415 416 417 421 422 423 425 Of a possibility 316 H. HAbeas corpus directed 44. See 198 199 Habendum 51 269 272 Habendum successive 220 Holidayes 218 Heire-speciall 3. Force of the word ib. 4 275 102 312 Homage 320 Husband and Wife acts of both or either 2 5 14 15 312 141 180 Wifes lease good 327 Gives land to her husband 143 Execution of the Wives Lease 26 See Reservation Husband may forfeit the Wives Copy-hold 345 May correct his Wife 215 I. IDeot 302 Jeofailes 56 57 194 Imbracery 240 Imprisonment 158 344 199. See Fine Improvement of common 97 Incidents 359 Ingrossers of corn 144 Innkeepers 345 346 Incroachment 24 411 Inquisitions 294 299 Indictment 45 46 65 67 272 84 157 400 346 For erecting a Cottage 383 For omitting the Crosse in Baptisme 119 Joynt 349 Contra pacem when 59 Infant 60 104 In his mothers belly 319 364 365 366. May grant c. 14 Brings Error to reverse a Fine 20 May release 30 31 Acknowledges a Statute c. 149 Appears c. 382 Promises to pay for his meat c. 219. Sues his Guardian discharges 214 Information 91 131 158
and Slingbyes case 361 Londons case 374 Ludlow and Stacies case 377 Loxe case 345 Lee and Grissels case 442 Leonards case 451 Lone and Hills case 458 Litfield and Melhers case 459 Langley and Stotes case 478 Lancaster and Kigleys case 507 Lovegrave and Brewens case 514 M MOuntjoyes Case 24 Macrowes Case 38 Marsh and Palfords Case 53 Megods Case 77 Miller and Gores Case 122 Mayes Case 173 Mannocks Case 191 Meâ—r and Ridouts Case 241 Marriots Case 248 Morris Case 265 Mounteagle and Pemeddocks Case 266 Meades Case 274 Miller and Reignolds Case 293 Manwoods Case 301 Maior of Yorks Case 360 Mildmays Case 416 Morgans Case 416 Morris and Clarks Case 435 Mellon and Herns Case 435 Mills Case 464 Marshes Case 465 Manns Case 471 Mutle and Does Case 480 Mole and Carters Case 484 Monk and Butchers Case 508 Moor and Hawkins Case 486 N NOrris and Salisburies case 154 Newton and Richards case 240 Newmans case 242 Newman and Babbingtons Case 250 Norton and Lysters case 291 Norton and Symms case 303 O OSborne and Trittels Case 99 Occoulds case 268 Owen alias Collins case 363 Owfield and Sheirts case 430 Ognels case 483 Offlies case 517 P POles case 13 Prideaux case 44 Plymptons case 116 Proctors case 168 Pinders case 185 Peto and Chitties case 193 Perepoints case 217 Piggot and Goddens case 221 Pitts and Wardels case 230 Prrrot and Kebles case 281 Porters case 302 Paynes case 308 Piggot and Pigots case 330 Prat and Lord Norâ—hs case 358 Paginton and Huets case 370 Plotts case 380 Pollyes case 403 Sir Iohn Parkingtons case 416 Pritchard Williams case 423 Philpot and Fielders case 427 Pye and Bonners case 443 Peters case 456 Pits and Horkley's case 458 Proctor and Cliffords case 468 Payn and Colleges case 490 Parks case 502 Palmers case 509 Perpoynt Thimblebys case 513 Pages case 717 Plats case 518 L. Pagets case 510 Q Quodds case 246 R ROots case 139 Rushwels case 186 Royley and Dormes case 260 Read and Hewes case 269 Rosseâ— and Walshes cass 296 Reorsbies and Cuffs case 316 Roe and Gloves case 332 Roberts and Hills case 434 Randal and Harveys case 452 Royden and Moulstons case 458 Roper and Roydons case 491 Roy and Hills case 517 S Skipwiths case 22 Savel and Cordels case 35 Sydenham Worlingtons case 40 Savacres case 47 Stargies case 75 Smith and Smiths case 88 Shotbolts case 91 Stransam and Colborns case 97 Strangden and Barcels case 163 Sayland and Ridlers case 177 Skipwith and Sheffields case 178 Stowels case 182 Sir John Spencer and Poyntz case 203 Stebbings case 239 Stones case 247 Sancford and Havels case 263 Sprat and Nicholsons case 283 Seymors case 307 Stowhridge Archers case 311 Smiths case 317 Sherloes case 347 Sheriff and Bridges case 349 Simpsons case 364 Smith and Staffords case 379 Slyes case 390 Spicer and Spicers case 398 Stewry and Stewryes case 410 L. Sheffield Ratcliffs case 417 Sadlers case 417 Snell and Bennets case 426 Shooter and Emets case 435 Stone and Roberts case 435 Sely and Flayles case 448 Seignior and Wolmers case 453 Stanton and Barneys case 458 Sherrington Worsleys case 465 Suttons case 476 Symmes case 477 Samson and Gatefields case 482 Scots case 487 Sommers case 489 Shortridge and Hills cases 492 Shirtford and Berrowes case 502 Syms and Smiths case 513 Simpsons case 518 Shackbolts 495 Spurlings case 479 T. THrogmorton and Terringhams case 37 Taylor and Ribera's case 90 Taylor and James case 195 Traherns case 321 Totnam and Hoskins case 445 Taylor and Askies case 455 Tollyn and Taylors case 469 Tanfield and Hirons case 486 Treventries case 488 Tucker and Carrs case 491 Taylor and Tomlyns case 511 Tennants case 507 Tompsons case 369 U. VIcar of Pancras case 63 Vernon and Grays case 145 Vaughans case 327 Veseys case 406 Vrry and Bowyers case 479 Vinior and Viniors case 515 W. VVEbb Potters case 25 Windsmore Hulberts Case 64 Wiseman and Wallmyers case 107 Wood and Ashes case 135 Warrens case 138 Widdal sir John Ashtons case 142 Winkefields case 152 Warners case 183 Whitlock and Hartwells case 184 Wilson and Wormels case 226 Woolseys case 249 Wekers case 257 Wright and Wrights case 262 Wetherell and Greens case 280 Wedlock and Hardings case 295 Wheelers case 315 Wormleighton and Hunters case 338 Whorewoods Case White and Moores case 340 Wrotesley Candishes case 354 Winscomb and Dunches case 376 Webb and Tucks case 392 Waite and Inhabitants of Stokes case 397 Webb and Paternosters case 401 Williams and Gibbs case 409 White and Edwards case 412 Wiseman and Denhams case 424 Waterer Montagues case 429 Wheeler Appletons case 434 Waterman and Cropps case 467 Whittie and Westons case 479 VVillis case 483 VVilliams and Floyds case 495 VValdrons case 509 Y. YArram and Bradshawes case 145 Yate and Alexanders case 408 Young and Englesfields case 422 Z. ZOuch and Bramports case 165 Zouch and Mitchels case 225 Zouch and Moores case 491 Mich. 17. Eliz. In the Kings Bench. 1. THis Case was moved to the Court. If an Abby hath a Parsonage appropriate in D. which is discharged of payment of Tithes and afterward the Abbot purchaseth part of the lands in the same Town and Parish where the Parsonage is That this land so purchased is discharged of Tithes in the hands of the Abbot For the Tithes were suspended during the possession of the Abbot in his own hands But after that the Abby was surrendred into the hands of the King Anno 30. H. 8. And afterwards the same possessions c. were given to King H. 8. by the Statute of 31. H. 8. cap. 13. as they were in the hands of the Abbot The question was Whether the Land so purchased by the Abbot before the surrender were discharged of payment of Tithes by the Statute or not And the opinion of Mr. Plowden was That they were not discharged of Tithes by the Statute For that no lands are discharged by the Statute but such lands as were lawfully discharged in right by composition or other lawfull thing And the lands in this case were not discharged in right but suspended during the possession of the Abbot in his own hands And so hee said it is when the Land is purchased by one and the Parsonage by another the right of Tithes is revived and the lands charged as before the purchase of the Abbot And so he said it had been adjudged Pasc 17. Eliz. In the Common Pleas. 2. A Man makes a Lease for Life and afterwards makes a Lease unto another for Years to begin after the death of Tenant for life The Lessee for yeers dieth intestate The Ordinary commits Administration The Administrators and the Tenant for life joyn in the purchase of the Fee-simple Two questions were moved The first was Whether the Fee were executed in the Tenant for life for any part 2. Whether the Term were gone in part or in all And the opinion
24. Eliz. in the Kings Bench. 19. IN an Action upon the Case upon a Promise The consideration was Where I. S. had granted a Term to I. D. That afterwards upon the request of I. S. I. D. did make to W. an Estate for four years upon which W. brought his Action And after Verdict it was moved in stay of Judgement that there was no good consideration and a difference taken where the Promise was upon the Grant and where afterwards If it were before then the Condition was good but if it were afterwards it was not good And it was adjudged That the Plaintiffe Nihil capiat per billam Pasch 24. Eliz. in the Kings Bench. 20. AN Action upon the Case upon a Promise was The Consideration was That in consideration that the Plaintiffe Daret diâ—m solutionis the Defendant Super se assumpsit and because he doth not say in facto that he had given day It was adjudged that no sufficient Consideration was alledged But if the Consideration were Quod cum indebitatus c. the same had been a good Consideration without any more for that implies a Consideration in it self Pasch 24. Eliz. in the Kings Bench. 21. IT was said by Cooke That the Chancellor or any Judge of any of the Courts of Record at Westminster may bring a Record one to another without a Writ of Certiorare because one Judge is sufficiently known one to the other as 5. H. 7. 31. where a Certificate was by the Chancellor alone and to this purpose is 11. H. 4. But that other Judges of base Courts cannot do nor Justices of the Peace as 3. H. 6. where the certificate by Suitors was held void Pasch 25. Eliz. In the Common Pleas. 22. SKIPWITH'S Case IT was found upon a speciall verdict in an Action of Trespass that the place where c. was Copy-hold land And that the Custome is That quaelibet foemina viro cooperta poterit devise lands whereof she is seised in Fee according to the custome of the Manor to her Husband and surrender it in the presence of the Reeve and six other persons And that I. S. was seised of the land where c. and had issue two Daughters and died and that they married husbands and that one of them devised her part to her husband by Will in writing in the presence of the Reeve and six other persons and afterwards at another day shee surrendred to the Husband and he was admitted and she died and her Husband continued the possession And the Husband of the other Daughter brought an Action of Trespasse Rodes Serjeant The Custome is not good neither for the Surrender nor for the Will for two causes One for the uncertainty of what estate shee might make a Devise and because it is against reason that the Wife should surrender to the Husband Where the Custome shall not be good if it be uncertain he vouched 13. E. 3. Fitz. Dum fuit infra aetatem 3. The Tenant saith that the lands are in Dorset where the Custome is that an Enfant may make a Grant or Feoffment when he can number twelve pence And it was holden that because it is uncertain when he can so do the Custome is not good 19. E. 2. in a Ravishment of Ward the defendant pleaded that the custome is that when the Enfant can measure an ell of cloth or tell twelve pence as before that he should be out of Ward and it is holden no good custom for the cause aforesaid 22. H. 6. 51. a. there a man prescribed That the Lord of D. had used to have Common for him and all his Tenants And because it is not shewed what Lord whether the Lord mediate or immediate it is adjudged no good custome And as to the Surrender it is against reason that the Wife should give to the Husband for a Wife hath not any Will but the Will of her Husband For if the Husband seised in the right of his Wife make a Feoffment in Fee and the Wife being upon the land doth disagree unto it saying that shee will never depart with it during her life yet the Feoffment is good and shall binde during the life of the Husband as it is holden in 21. E. 3. And therefore it is holden in 3. E. 3. Tit. Devise Br. 43. That a Feme covert cannot devise to her Husband for that should be the Act of the Husband to convey the land to himself And in the old Natura Brevium in the Additions of Ex gravi quaerela it is holden so accordingly And the Case in 29. E. 3. differs much from this Case For there a woman seised of lands devisable took an Husband and had issue and devised the lands to the Husband for his life and died and a Writ of Waste was brought against him as Tenant by the Courtesie and it was holden that it did lie and that he is not in by the Devise for the reason there is because he was in before by the Courtesie But as I conceive that Case will disprove the Surrender for in as much as he had it in the Right of his wife he could not take it in his own Right Also he took another Exception in the principal Case because that the wife was not examined upon the Surrender but none of the Justices spake to that Exception but when the Record was viewed it appeared that it was so pleaded Further He said That the devise was void by the Statute of 34. H. 8. Cap. 5. where it is said It is enacted That Wills and Testaments made of any Lands Tenements c. by women Coverts or c. shall not be taken to be good or effectual in Law And he said That this Statute doth extend to customary Lands And as to that all the Justices did agree That it is not within the Statute And as to the Statute of Limitations Andâ—rson chief Justice said That if a Lease for years which perhaps will not indure sixty years shall be taken strong this shall Anderson moved That if the Lord Lease Copyhold land by Word Whether the Lessee might maintain an Ejectione firme and he conceived not for in an Ejectione firmâ— there ought to be a Right in Fact And although it be by conclusion it is not sufficient for that the Jury or Judge are not estopped or concluded And he conceived That if Tenant at Will make a Lease for years that it is no good lease betwixt him and the Lessor but that he may well plead that he had nothing in the land Meade contrary but they both agreed That the Book of 14. E. 4. which saith That if Tenant at Will make a lease for years that he shall be a Disseisor is not Law Anderson said That the prescription in the principal Case was not good for it is Quod quaelibet foemina viro cooperta poterit c. and it ought to be that feme Coverts possunt and by the Custome have used to devise to the
contract was determined and not in esse at the time of promise But he said it was otherwise upon a consideration of Marriage for that is alwayes a present consideration and alwayes a consideration because the party is alwayes married Windham to the same intent and compared it to the Case of 5. H. 7. If one sell an horse to another and after at another day will warâ—ant him to be good and sound of limb and member it is void warranty for it ought to have been at the same time that the horse was â—old Periâ—m Justice contrary for he said This case is not like to any of the cases which have been put because there is a great difference betwixt Contracts and this Action For in Contracts the consideration and promise and sale ought to concur because a Contract is derived of con trahere which is a drawing together so as in Contracts every thing requisite ought to concur as the consideration of the one side and the promise or sale of the other side But to maintain an Assumpsit it is not requisite for it is sufficient if there be any moving cause or consideration precedent for which cause or consideration the promise was made and that is the common practice at this day For in Assumpsit the Declaration is That the Defendant for and in consideration of ten pounds to him paid postâ—a silicet a day or two after super se assumpsit c. and that is good and yet there the consideration is executed And he said that Hunt and Baker's case which see 10. Eliz. Dyer 272. would prove it The case was this The Apprentice of Hunt was arrested when Hunt was in the Country and Baker one of Hunts neighbours to keep the Apprentice out of the Counter became his Baile and paid the debt Afterwards Hunt returning out of the Country thanked Baker for his neighbourly part and promised him to repay him the said summ Upon which Baker brought an Action upon the Case upon the promise And it was adjudged that the Action would not lie not because the consideration was precedent to the promise but because it was executed and determined long before But there the Justices held That if Hunt had requested Baker to have been surety or to pay the debt and upon that request Baker paid the debt and afterwards Hunt promiseth for that consideration the same is good for the consideration precedes and was at the instance and request of the Defendant So here Sydenham became bail at the request of the Defendant and therefore it is reason that if he be at losse by his request that he ought to satitfie him And he conceived the Law to be cleer that it was a good consideration and that the request is a great help in the Case Rodes Justice agreed with Periam for the same reasons and denyed the Case put by Anderson And he said That if one serve me for a year and hath nothing for his service and afterwards at the end of the year I promise him ten pounds for his good and faithfull service ended he may maintain an Assumpsit for it is a good consideration But if the servant hath wages given him and the Master ex abundantia as he said promiseth him ten pounds after his service ended the same promise shall not maintain an Assumpsit for there is not any new cause or consideration preceding the Assumpsit And Periam agreed to that difference and it was not denyed by the other Justices but they said that the principall Case was a good case to be advised upon and at length after good advice and deliberation had of the cause they gave Judgment for the Plaintiff that the Action would lie And note That they very much relyed upon Hunt and Bakers Case before cited See Hunt and Baker's Case in 10. Eliz. Dyer 272. Pasc 27. Eliz. in the Common Pleas. 41 CARTER and CROST's Case CArter brought an Action of Detinue of a chaine against Crosts and declared That Thomas Carter his brother was thereof possessed and died Intestate for which cause the Bishop of Cork granted him Letters of Administration and that the Chain came to the Defendants hands by Trover c. And declared also That he was as Administrator thereof possessed in London To which the Defendant Crosts pleaded the Generall Issue and the Jury gave a speciall Verdict and found that the Administration was committed to Carter in London by the Bishop of Cork in Ireland here and did not find that Carter was possessed of the chain in London And upon this special Verdict first it was moved That the Bishop of Cork in Ireland being in England might commit administration of things in Ireland And it was held cleerly by the Court That he might of things within his Diocesse in Ireland because it is an Authority Power or Matter that followes his Person and wheresoever his Person is there is his Authority As the Bishop of London may commit Administration being at York but it ought to be alwaies of things within his Diocesse and therefore they held That the Declaration was good in that point That the Bishop of Cork did commit Administration in London although there be no such Bishop of England The second point was If an Aministrator made by a Bishop of Ireland might bring an Action here as Administrator and it was holden That he could not because of the Letters of the Administration granted in Ireland there could be no triall here in England although that Rodes Justice said That Acts done in Spirituall Courts in Forrain places as at Rome or elsewhere the Law saith That a Jury may take notice of them because such Courts and the Spirituall Courts here make but one Court and he proved it by the Case of the Miscreancy in 5. R. 2. Tryall 54. where a Quare Impedit was brought by the King against the Clerk of a Church within the Bishopprick of Durham and counted that the Bishop who is dead presented his Clerk and that the Clerk died and the Chapter collated a Cardinall who for Miscreancy and Schisme was deprived the Temporalties being in the Kings hands Burgh He hath counted of an Avoidance for Miscreancy at the Court of Rome which thing is not tryable here Belknap Chief Justice I say for certain That this Court shall have Conusans of the Plea and that I will prove by Reason for all Spirituall Courts are but one Court and if a man in the Arches be deprived for a Crime and appeal to Rome and is also there deprived that Deprivavation is triable in the Kings Court in the Arches And if a man be adhering unto the Kings enemies in France his Lands are forfeitable and his adherence shall be tryed where his Land is as oftentimes it hath been for adherence to the Kings enemies in Scotland And so by my faith if one be Miscreant his Land is forfeitable and the Lord thereof shall have the Escheat and that is good reason For if a man
could be if it were not of Land holden in Socage and therefore that tenure is implyed Contrary When a man is to plead a Devise but where the Verdict doth not strongly imply a thing it shall not be good as in Scolasticas Case Plo. Com. 411. Exception was taken that the Jury did not find That the Devisor had not any Heir Male alive praeter the said John and Francis for if he had the wife of the Plaintiffe had no cause of Action And it was there holden by Harper That it was not a good Verdict for the incertainty so in our Case Cook contrary 1. The Grant is not good and the Rectory is no part of it nor can they passe by the word Portion 1. By the Etimology of the word for Portion is a thing in grosse by it selfe and cannot passe by that thing which is intended Nomen Collectivum as a Rectory is So of a Manor if a man grant totam illam portionem Manerii hee being seised of a Manor nothing passeth for portio is no more then partio as the Latinists say and then if a man grant all that part of his Manor or part of his Tithes in D. and he be seised of the whole Manor of D. or of the Rectory of D. nothing passeth Also the words after expound the Queens mind for the words precedent are coupled with a Cum after scil Cum omnibus aliis c. So as the first part shews the grant of Tithes and the later part shews what Tithes viz. those which were in the Occupation of John Corbet so as but part is granted and in the Kings Grant a part shall not be taken for the whole and so in no case if not by the Figure Synecdoche which cannot be in cases of Grants at the common Law Also the words are totam illam portionem c. and not totam meam portionem c. and the word illa or that ought to have a word What which is a word shewing in whose possession the portion was Also the Kings Letters Patents ought for the most part be taken according to the meaning of the King for the case was in the Exchequer That where the King granted all his Tenements in D. that nothing passed by that Grant but the Houses Otherwise it is in the case of a common person So 22. Ass where the King grants goods of Felons quorumcunque damnatorum it shall not extend to Treason nor to murder of the Kings Messenger So 8. H. 4. 2. If the Grant be of all the goods of those who pro aliqua transgressione sive delicto c. forisfacere deberent it shall not extend to those who are felo de se Also the Non obstante doth not help the matter For I take this difference When nothing passeth by the words precedent Ex vi termini there nothing is helped by the Non obstante But if any thing passe by the precedent words Ex vi termini there a Non obstante may make the thing good which otherwise should be void As if the King grant to J. S. the Manor of D. Non obstante that he is seised for the term of life thereof it is a void Grant But if the Grant were of the Manor of D. notwithstanding that I. S. hath it for life here the Non obstante makes the Grant good which otherwise should be the ignorance of the King to make a Grant of that of which he is excluded by the Non obstante because thereby he takes knowledg of the particular estate and so he is not deceived As to the matter moved against the Verdict I conceive that it makes against the other side for it was on his part to prove the Occupation and if there be no Occupation at the time of the Lease the Grant is void and he was to prove it being in the affirmative And then in re dubia majus inficiatio quà m affirmatio intelligenda and a May be may be intended in every case And if such construction should be in speciall Verdicts I dare affirm that by such May bees all speciall Verdicts shall be quashed But the Law is to give a favourable construction of them according to the meaning of the Jurours Snagg contrary and by him these words cum omnibus aliis c. are void in the Kings case and vouched the case of 29. E. 3. 9. before vouched Where the King had granted to the Earl of Salisbury the custody of the Lands of the Prior of Mountague being seised into the Kings hands as a Prior Alien and afterwards the Earl died his Heir within age whereby the said Lands and others and Advowsons came to the Kings hand by reason of minority and afterwards the King granted to the Son all the Lands and Advowsons which were Patris sui ac omnes terras ac omnes advocationes of the said Prior which the King had before given to the father of the said son And it was there holden That although that the Advowsons passed not to the Father yet by that grant they did passe and that these woads which he granted to his father were meerly void Clâ—nche Justice Nothing passeth by this word Portion for it is a thing in gross and a thing in gross cannot contain another thing and a word which signifies a thing in grosse cannot passe another thing As if a man grant all his Services in D. it is to be intended Services in grosse and if he have not any Services but those which are parcell of a Manor nothing shall passe by those words But I conceive That those Tithes which are parcell of the Rectory shall passe by these words Cum aliis c. For although that the words are in the tenure of John Corbet yet if they were not in his tenure the Non obstante will help it for it is Non obstante any misnaming of the Tenants or of the quantity or quality of the Tithes so as these words imply as much as if the Grant had been in the tenure of John Corbet or of any other in L. or elsewhere Gaudy Justice If the words Totam illam portionem were left out of the Book the other words Cum omnibus aliis shall passe nothing and those words Totam illam portionem are as nothing to passe a thing not in grosse and by consequence nothing shall passe by the other words And afterwards Judgement was given That nothing passed by the Letters Patents Hill 28 Eliz. in the Kings Bench. 43. CROPP's Case CRopp made a Lease for years reserving rent at Mich. upon Condition That if the rent be behind at Mich. and a Month after that he might enter The Lessee after Mich. and before the Month ended sent his servant to the house of Cropp to pay the money to Cropp the servant coming to Cropps house found him not for he was not at the House the Servant delivered the Rent to one Margery Briggs who was his Daughter in Law to deliver the
a Prohibition And Suit and Clenche Justices He shall have a Prohibition for he claims onely a portion of Tithes and that by prescription and not meerly as Parson or by reason of the Parsonage but by a collaterall cause viz. by Prescription which is a Temporall cause and thing And it is not materiall whether it be betwixt two Parsons Vide 20. H. 6. 17. Br. Jurisdiction 80. and 11. H. 4. and 35. H. 6. 39. Br. Jurisdiction 3. Where in Trespasse for taking of Tithes the Defendant claimed them as Parson and within his Parish and the Plaintiffe prescribed That he and his predecessors Vicars there had had the Tithes of that place time out of minde c. And the opinion of the Court was that the right of Tithes came in debate betwixt the Vicar and the Parson who were Spirituall persons who might try the right of Tithes And therfore there the Temporall Court should not have the Jurisdiction Mich. 28 29 Eliz. In the Kings Bench. 56 IN an Indictment upon the Statute of 8. H. 6. of Forcible Entry the Case was this One was Lessee for yeers and the Reversion did belong unto the Company of Goldsmiths And one was indicted for a forcible Entry and the words of the Indictment were That expulit disseisivit the Company of Goldsmiths quendam I. S. tenentem expulit Cooke took exception to the Indictment and said that a disseisin might be to one although not in possession as to a Reversioner upon a term for yeers or upon a Wardship but he could not be expulsed if he were not in possession for privatiâ— praesupponit habitum And after it saith that the Tenant was expulsed and two cannot be expulsed where one onely was in possession therefore it ought to have said that the Tenant of the Free-hold was disseised and the Termor expelled and it applyes the word expulit to both And Fuller took another Exception that the Cart is set before the horse For he who had the Free-hold could not be disseised if his Termor were not first ousted and the Indictment is That the Tenant of the Free-hold was expulsed and disseised and then the Termor was expelled But Sui Justice as to that said that the later clause scil et quendam I. S. tenentem c. is but surplusage For if one enter with force and expell the Tenant of the Free-hold it is within the Statute of 8. H. 6. Then Fuller moved that the Indictment doth not shew the place where he expelled him But Cleâ—ch Justice said that that was not material for he could not expell him at another place then upon the Land As a man cannot make a Feoffment by livery and seisin at another place but upon the Land unless a Feoffment with Livery within the view And as to the Objection of Cook that the Indictment is that he disseised and expelled the Tenant of the Free-hold out of the possession of the Free-hold To that he answered that the possession of the Termor is the possession of him in the Reversion Mich. 28 29. Eliz. in the King 's Bench. 57 A Man seised of a Copy-hold in Fee made his Will and thereby he devised the same unto his Wife for her life and that after her death his Wife or her Executors should sell the Land He surrendred to the use of his Wife which was entred in hac forma viz. to the use of his Wife for life Secundùm formam ultimae voluntatis The Woman sold the Land during her life The question was Whether she might sell or not Suit Justice said That the intent doth appear that she might sell during her life for when it saith That she or her Executors should sell after her death it is meant the Estate which is to come after her death for the Wife after her death could not sell The second Point was When the surrender is to the Wife for life secundùm formam ultimae voluntatis Whether here she have the Land for life and the Fee also to sell Clenche If she had not the Fee to sell then the words Secundùm formam ultimae voluntatis should be void for the Surrender to the use of the wife for life gives her an Estate for life without any other words Suit If it were ad usum ultimae voluntatis without speaking what Estate the Wife should have no doubt but shee should have for her own use for life and that afterwards she might sell the Land but he said As the Case is put it is a pretty Case And it was adjourned Mich. 28 29. Eliz. in the Kings Bench. 58 THis Case was moved in Court A Copy-holder committed Waste by which a forfeiture accrued to the Lord who afterwards did accept of the Rent The question was Whether by this acceptance he were concluded of his Entrie for the Forfeiture Cook said He was not for it is not as the Case 45 E. 3. where a Lease is made upon Condition that the Lessee shall not do Waste and he commits Waste and then the Lessor accepts the Rent there he cannot enter But otherwise is it of a Copy-hold for there is a condition in Law and here in Fait and a condition in Fait may save the Land by an Acceptance but a condition in Law cannot for by the condition in Law broken the Estate of the Copyholder is meerly void And the Court agreed That when such a Forfeiture is presented it is not to Entitle the Lord but to give him notice for the Copy-hold is in him by the Forfeiture presently without any Presentment A man made a Lease for years upon condition that he should not assign over his Lease and it was reserving Rent and after he did assign it and then the Lessor accepted the rent there he shall not enter for the condition broken Lessee for years upon condition that he should not do Waste and the Lessor accepts of the Rent for the quarter in which the Waste was done yet he may enter but if he do accept of a second payment of the Rent then it is otherwise but if it were upon condition That if he do waste that his Estate shall cease There no acceptance of the Rent by the Lessor can make the Lease good It was adjourned Mich. 28 29. Eliz. in the Kings Bench. 59 THE Lord Admirall did grant the Office of Clark or Register of the Admirall Court to one Parker and Herold for their lives eorum diuâ—ius viventi And Herold bound himself in a Bond of Five Hundred Pound to Parker that the said Parker should enjoy the Office cum omnibus proficuis during his life And afterwards Herold did interrupt the said Parker in his Office upon which he brought an Action of Debt upon the Bond. The Defendant pleaded That such is the custome That the Admirall might grant the same Office for the life of the Admirall only and that he is dead and so the Office void and that he did interrupt him as it was lawfull
Bench. 70 GILE'S Case A Writ of Error was brought to reverse a Judgement given in an Action upon the Case The Action upon the Case was brought against one Quare exaltavit stagnum per quod suum pratum fuit inundatum and he pleaded Not guilty and the Jury found Quod erexit stagnum and if Errectio be Exaltatio then the Jury find that the Defendant is guilty and thereupon Judgement was given for the Plaintiffe Glanvile alledged the generall Error That Judgement was given for the Plaintiffe where it ought to have been given for the Defendant And he said That erigere stagnum est de novo facere Exaltare est erectum majoris altitudinis facere Deexaltare is ad pristinam altitudinem adducere prosternere stagnum est penitus tollere And the precise and apt word according to his Case in an Action upon the Case ought to be observed that he may have Judgement according to his damage and his complaint viz. either Deexaltare or Posternere c. 7. E. 3. 56. An Assize of Nusans Quare exaltavit stagnum ad nocumentum liberi tenementi sui The Defendant pleaded That he had not inhaunced it after it was first levyed And by Trew There is not any other Writ in the Chancery but Quare exaltavit stagnum Herle said That he might have a Writ Quare levavit stagnum and there by that book Levare stagnum exaltare stagnum do differ And therefore he conceived That the Writ should abate for using one word for another 8. E. 3. 21. Nusans 5. by Chauntrell In a Writ of Nusans Quare levavit if it be found that it was tortiously levied the whole shall be destroyed But in a Writ Quare exaltavit nothing shall be pulled down if it be found for the Plaintiffe but the inhauncing shall be abated only So 8. Ass 9. Br. Nusans 17. the same Case and difference is put and 16. E. 3. Fitz. Nusans 11. If the Nusans be found in any other forme then the Plaintiffe hath supposed he shall not recover And in 48. E. 3. 27. Br. Nusans 9. The Writ was Quare divertit cursum aquae c. and shewed that he had put Piles and such things in the water by which the course of the water was streitned wherefore because he might have had a Writ Quare coarctavit cursum qquae the Writ was holden not to be good Cook took another Exception viz. That the Assize of Nusans ought to be against the Tenant of the Free-hold and therefore it cannot be as it was here brought against the Workmen and it is not shewed here that the Defendant was Tenant of the Soil for 33. H. 6. 26. by Moile If a way be streitned and impaired an Action upon the Case lieth but if it be altogether stop'd an Assize of Nusans lieth But Prisoit said If the stopping be by the Terr-Tenant an Assize of Nusans lieth but if it be by a Stranger then an Action upon the Case but for common Nusanses no Action lieth but they ought to be presented in the Leet or Turne Drew We have shewed That he who brought the Assize of Nusans hath a Free-hold in the Land and if the Tenant be named it is sufficient although it be not shewed that he is Tenant of the Free-hold And to that all the Justices seemed to incline But then it was shewed to the Court that one of the Plaintiffes in the Writ of Error had released And if that should bar his Companions was another question And it was holden That the Writ of Error shall follow the nature of the first Action and that Summons and Severance lieth in an Assize of Nusans and therefore it was holden that it did the like in this Action therefore the Release of the one was the Release of the other But then it was asked by Glanvile What should become of the Damages which were entire Note Pasch 29. Eliz. the Case was moved again and Drew held exaltare and erigere all one and that erigere is not de novo facere for that is Levare But the Justices were against him who all held That erigere is de novo facere and exaltare is in majorem altitudinem attollere and at length the Judgment was affirmed That Erectio and Exaltatio were all one For the Chief Justice had turned all his Companions when he came to be of Opinion that it was all one And so the Case passed against Glanviles Client Mich. 28 29. Eliz. in the Kings Bench. 71 THE Lady Gresham was indicted for stopping the High-way and the Indictment was not laid to be contra pacem And Cook said That for a mis-feasance it ought to be contra pacem but for a non-feasance of a thing it was otherwise and the Indictment was for setting up a gate in Osterly Park And Exception also was taken to the Indictment for want of Addition for Vidus was no Addition of the Lady Gresham and also Vi armis was left out of the Indictment And for these causes she was discharged and the Indictment quashed Mich. 28 29. Eliz. in the King 's Bench. 72. IN an Ejectione firme Exception was taken because the Plaintiffe in his Declaration did not say Extratenet For in every Case where a man is to recover a possession he ought to say extra tenet And in Debt he ought to say Debet dâ—tinet And in a Replevin Averia cepit injustè detinet But all the Justices agreed That in an Ejectione firme those words were not materiall For if the Defendant do put out the Plaintiff it is sufficient to maintain this Action And Kempe Secondary said that so were all the ancient Presidents although of late times it hath been used to say in the Declaration Extra tenet and the Declaration was holden to be good without those words Mich. 28 29. Eliz. in the King 's Bench. 73 IN a Case for Tithes the Defendant did prescribe to pay but ob q for the Tithes of all Willows cut down by him in such a Parish Cooke It is no good prescription for thereby if he cut down all the Willows of other men also but ob q. should be paid for them all But he ought to have prescribed for all Willows cut down upon his own land and then it had been good But as the prescription is it is unreasonable and of that opinion was the whole Court Mich. 28 29. Eliz. in the King 's Bench. 74 DEIGHTON and CLARK'S Case IN an Action of Debt upon a Bond the Condition of the Bond was That whereas the Plaintiff was in possession of such Lands If I. S. nor I. D. nor I. G. did disturb him by any indirect means but by due course of Law that then c. The Defendant pleaded That nec I S. nec I. D. nec I. G. did disturb him by any indirect means but by due course of Law Godfrey The plea in Bar is not good for it is a Negative pregnans viz. such a Negative
in the Point But I will put you as strong a Case A Judgement is given upon an Exigent by the Coronor yet by 28. Ass 49. If there be no Returne of the Exigent it is no sufficient Out-lawry and one Pleaded the same in the plainplaintiffe and said that it appeared by the Record and vouched the Record and because the Exigent was not returned it was not allowed And so was the Case of Procter and Lambert 4 5. Philip and Marie adjudged As to the Reports which are not printed vouched by Tanfield eâdem facilitate negantur quâ affirmantur Upon an Elegit if there be goods sufficient the Sheriff is not to meddle with the Lands and if there be not sufficient goods yet hee is not to meddle with the beasts of the plough If a man have an Authoritie and he doth lesse then his Authoritie all is void as here the Return of the Writ is part of his Authority As 12. Ass 24. If a man have a letter of Atturney to make Livery and Seisin to two and he makes it to one all is void and he is a disseisor to the Feoffor So 4. H. 7. If he have a letter of Atturney to make Livery of three Acres and he makes onely Livery of two Acres and not of the third Acre it is void for the whole Also the Elegit is Quod extendi facias liberari quousque the Debt be satisfied and therefore if the land be extended onely and there be no delivery made of the land ut tenementum suum liberum according to the Writ then there is no execution duly done And in the principall Case there was no delivery made of the land It was adjourned Mich. 28 29. Eliz. in the King 's Bench. 97 STRANSAM against COLBURN STransam brought a Writ of Error against Colburne upon a Judgment given in a Writ of Partitione facienda and divers Errors were assigned The first Error assigned was That the party doth not shew in his Writ nor in his Declaration upon what statute of Partition hee grounds his Action And there are two Statutes viz. the Statute of 31. H. 8. chap. 1. and the Statute of 32. H. 8. chap. 32. And yet hee groundeth his Action upon one of the Statutes As 3. H. 7. 5. Where the servants of the Bishop of Lincoln were indicted of Murder eo quod ipsi in Festo Sancti Petri 2. H. 7. felonicè apud D. murdraverunt c. and because there are two Feasts of Saint Peter viz. Cathedrae Ad vincula therefore the Indictment was not good 21. E. 3. One brought a Cessavit by severall Precipes viz. of one Acre in D. and of another in S. and of the third in Villa praedicta and because it was uncertain to which praedict shall be referred it was not good 5. H. 7. Br. Action upon the Statute 47. An Information was in the Exchequer for giving of Liveries and the partie did not declare upon what Statute of Liveries and Exception was taken to it and the Exception was not allowed because that the best shall be taken for the King but if it had been in the Case of a common person it had not been good So if a man bring an Action against another for entry into his Land against the forme of the Statute it is not good because hee doth not shew upon what Statute hee grounds his Action Whether 8. H. 6. which gives treble damages or 2. H. 2. which gives Imprisonment and single damages The second Error which was assigned by Weston was That the Declaration doth shew Quod tenet pro indiviso and doth not shew what estate they held pro indiviso And there is a Statute which gives Partition of an estate of an Inheritance viz. 31. H. 8. Cap. 1. And another which gives partition for years or for life and he doth not shew in which of the Statutes it is As if one claime by a Feoffment of Cestuy que use as 4. H. 7. is he ought to shew that the Cestuy que use was of full age at the time of the Feoffment c. for it is not a good Feoffment if he be not of full age So here he ought to shew that he is seized of such an estate of which by the Statute he may have a Writ of Partition For in many Cases there shall be Joynt-Tenants and yet the one shall not have a Writ of Partition against the other by any Statute As if a Statute Merchant be acknowledged to two and they sue for the execution upon it I conceive that the one shall not have partition against the other So if two Joynt-Tenants bee of a Seignorie and the Tenant dieth without heir so as the Lands escheat to them they are Joynt-Tenants and yet Partition doth not lye betwixt them by any Statute Therefore one may be seised pro indiviso and yet the same shall not entitle him to a Writ of Partition Shuttleworth contrary The Statute doth not give any forme of Writ but the Writ which was at the Common Law before And therefore it is not to be recited what kind of Writ he is to have As to the second point It is not necessary to shew the estate because it cannot be intended that he hath knowledge of the estate of the Defendant For if one plead Joynt-tenancy on the part of the Plaintiffe hee shall not shew of whose gift but if the Defendant or Tenant plead Joynt-tenancy of his part he ought to shew of whose gift and how 7. E. 6. Plo. Com. Partridges case In a Case upon the Statute of Maintenance The Plaintiffe may say That he accepted a Lease and shall not be forced to shew the beginning or the end of it or for what years it is In the Case of the Indictment before and the Case of severall Precipes of severall Acres in severall Towns that lyeth in the Plaintiffs Cognisance But here how can the Plaintiffe know the Defendants estate because he may change it as often as he pleaseth and therefore it is uncertain for if before he had a Fee hee might passe away the same unto another and take back an estate for years Also the Plaintiffe hath appeared and pleaded to the Declaration And therefore he shall not have a Writ of Error Gaudy Justice That is not so Shuttleworth True if there be matter of Error apparant Gaudy Justice Cannot you take notice of your own estate Cook The Declaration is not good therefore the Writ of Error is maintainable By the Common Law No partition lieth betwixt Tenants in common as these are And the Statute of 31. H. 8. gives Partition onely of an estate of Inheritance and prescribes also that the Writ shall be devised in the Chancery there he conceived the Ancient Writ is not to be used I grant for a generall rule That if a Statute in a new Case give an old Writ he shall not say Contra formam Statuti because it is not needfull to recite the Statute
the Person and to that purpose he cited 15 E. 4. 29. And he agreed the Case That if the Lord improve part of the Common that he shall not have common for the Residue because of the same Land newly improved for he cannot prescribe for that which is improved by 5. Ass 2. But here he doth prescribe not in the person or in or for a new thing but that the usage of the Towne hath been That the Inhabitants shall have common and that common is not appendent nor appertinent nor in grosse by Needham 37 H. 6. 34. b. Besides he said That if the house of a Freeholder who hath used to have such common fall down and he build it up again in another place of the Land that he shall have common as before And he put a difference betwixt the case of Estovers and this Case where a new Chimney is set up for that makes a new matter of charge and he much stood upon the manner of the Prescription Gaudy Serjeant contrary and he took Exception to the Prescription for he saith that it is antiqua villa and doth not say time out of mind and such is the Prescription in 15. E. 4. 29. a. and if it be not a Town time out of mind c. he cannot prescribe that he hath used time out of mind c. And he said That if it should be Law that every one who builds a new house should have common it should be prejudiciall to the Ancient Tenants or impaire the common And so one who hath but a little land might build 20 houses and so an infinite number and every house should have common which were not reason Anderson chief Justice He who builds a new house cannot prescribe in common for then a prescription might begin at this day which cannot be and he insisted upon the generall loss to the ancient Tenants Pâ—riam Justice If it should be Law that he should have common then the benefit of improvement which the Statute giveth to the Lord shall be taken away by this means by such new buildings which is not reason So as all the Justices were of opinion That he should not have common but Judgement was respited untill they had copies of the Record And Hillary Term following the Case was moved again and Anderson and Periam were of Opinion as they were before and for the same reasons But Windham Justice did incline to the contrary But they did all allow That he who new bulids an old Chimney shall have Estovers so a house common So if a house fall down and the Tenant build it up again in another place Periam If a man hath a Mill and a Watercourse time out of mind which he hath used to cleanse if the Mill fall down and he set up a new Mill he shall have the liberty to cleanse the Watercourse as he had before And that Terme Judgement was given for the Defendant to which Windham agreed Mich. 28 29. Eliz. in the Common Pleas. 111 IN a Replevin the parties were at Issue upon the Property and it was found for the Plaintiff and Damages intire were assessed and not for the taking by it self and for the value of the Cattell by themselves for the Judgement upon that is absolute and not conditionall and also if the Plaintiffe had the Cattell the Defendant might have given the same in Evidence to the Jury and then they would have assessed Damages accordingly viz. but for the taking Mich. 28 29. Eliz. in the Common Pleas. 112 A. bargaines with B. for twenty Loads of Wood and B. promises to deliver them at D. if he fail an Action upon the Case lieth But Periam Justice said That upon a simple contract for wood upon an implicative promise an Action upon the Case doth not lie Rodes Justice If by failer of performance the Plaintiff be damnified to such a sum this Action lieth Mich. 28 29 Eliz. in the Common Pleas. 113 A Lease of Lands is made excepting Timber-Woods and Under-woods And the question was Whether Trees Sparsim growing in Hedge rowes and Pastures did passe And difference was taken betwixt Timber-wood being one Wood and Timber Woods being severall Words although it bee Arbor dum crescit lignum dum crescere nescit yet in common speech that is said Timber which is fit to make Timber Then it was moved Who should have the Lops and Fruits of them and the Soile after the cutting of them downe and also the Soile after the Under Woods and as to that a difference was taken where the words are generally All woods and where they are his woods growing And in speaking of that case another case was moved viz. If a stranger cut down woods in a Forrest and there is no fraud or collusion betwixt him and the owner of the Land Whether the King should have them or the owner of the Soile And it was holden That the owner of the Soile should have them and yet the owner could not cut them downe but is to take them by the Livery of one appointed by the Statute Mich. 28 29. Eliz. in the Common Pleas. 114. A. makes a Lease of Lands to B. for ten years rendring rent And B. covenants to repaire c. Afterwards A. by his Will deviseth that B. shall have the Lands for thirty years after the ten years under the like Covenants as are comprised in the Lease Fenner moved it as a question If by the Devise those which were Covenants in the first Lease should be Conditions in the second for they cannot bee Covenants for want of a Deed And if they should not be Conditions the heir of the Lessor were without remedie if they were not performed A Devise for years paying ten pounds to a stranger is a Condition because the stranger hath no other remedy Gaudy Justice By the Devise to him to do such things as he was to do by the Lease makes it to be a Condition which was in a manner agreed by all the other Justices Yet Periam and Rodes Justices said That the first Lease was not defeisable for not performance of the Covenants nor was it the intent of the Devisor that the second should be so notwithstanding that his meaning was that he should do the same things Periam The Covenant is in the third person viz. Conventum Aggreatum est And see 28. H. 8. Dyer where the words Non licet to the Lessee to assigne make a Condition Mich. 28 29. Eliz. in the Common Pleas. 115. BARBER and TOPESFEILD'S Case A. being Tenant in taile of certain Lands exchanged the same with B. B. entred and being seised in Fee of other Lands devised severall parcels thereof to others and amongst the rest a particular estate unto his heir Proviso That he do not re-enter nor claim any of his other Lands in the destruction of his Will And if he do that then the estate in the Lands devised to him to cease A. dieth his issue entreth into the Lands in
taile and waives the Lands taken in Exchange and before any other entry the heir of B. enters upon the Land which was given in Exchange and the opinion of the whole Court was That it was no breach of the Condition because that was not the Land of the Devifor at the time of the devise therefore it was out of the Condition Mich. 28 29. Eliz. In the Common Pleas. 116. PLYMPTON'S Case AN Action of Debt was brought by one Plympton and his wife Executors of one Dorrington upon a Bond with Condition to perform Covenants of an Indenture of Lease whereof one Covenant was That he should pay forty shillings yearly at the Feast of the Annunciation or within fourteen days after And the breach assigned was for not payment at such a Feast in such a year The Defendant said That hee paid it at the Feast upon which they were at issue And upon evidence given to the Jury it appeared That the same was not paid at the Feast but in eight dayes after it was paid And the opinion of the Court was That by his pleading that hee had paid it at such a day certain and tendring that for a speciall issue That hee had made the day part of the issue and then the Defendant ought to have proved the payment upon the very day But if the Defendant had pleaded That hee paid it within the fourteen dayes viz. the eighth day c. that had not made the day parcell of the issue but then hee might have given evidence that he paid it at another day within the fourteene dayes Then for the Defendant it was moved That the Plaintiffe had not well assigned the breach in saying that he had not paid it at the Feast without saying Nor within the fourteen dayes But the Court said That the Jury was sworn at the Barre and bid the Councell proceed and give in their evidence for the time to take exception was past Mich. 28 29. Eliz. in the Common Pleas. 117. IT was the opinion of Anderson Chiefe Justice and so entred by the Court That if a Copie-holder doth surrender to him who hath a Lease for years of the Mannor to the use of the same Lessee That the Copie-hold estate is extinct For the estate in the Copie-hold is not of right but an estate at will although that custome and prescription had fortified it And Wray said That it had been resolved by good opinion That if a Copie-holder accept a Lease for years of the Mannor that the Copie-hold estate is extinct for ever Mich. 28 29. Eliz. in the Common Pleas. 118. Anderson Chiefe Justice and Periam Justice being absent in a Commission upon the Queen of Scots Shuttleworth moved this case to the Court. If the Queen give Lands in taile to hold in Capite And afterwards granteth the Reversion how the Donee shall hold Windham Justice and Fenner Serjant The tenure in this case is not incident to the Reversion and the Donee shall hold of the Queen as in grosse and so two Tenures in Capite for one and the same Land And thereupon Windham Justice cited 30. H. 8. Dyer 45 46. That the Queen by no way can sever the tenure in chiefe from the Crown And therefore if the Queen do release to her Tenant in Capite to hold by a penny and not in Capite it is a void Release for the same is meerly incident to the Person and Crown of the Queen But Rodes Justice held the contrary viz. That the Tenure in Capite doth not remain But it was said by Windham That if the Queen had reserved a Rent upon the gift in tail the Grantee of the Reversion should have it Also he said That the Queen might have made the Tenure in such manner viz. to hold of the Mannor or of the Honor of D. Shuttleworth If Lands holden of the Mannor of D. come to the King may he give them to be holden of the Mannor of S that should be hard Windham I did not say That Lands holden of one Mannor may be given to be holden of another Mannor perhaps that may not bee but Lands which is parcell of any Mannor may be given Vt supra Mich. 28 29 Eliz. in the Common Pleas. 119 SErjeant Fenner moved Case If Lands be given to the Husband and Wife and to the heirs of their two bodies and the Husband dieth leaving Issue by his Wife and the Wife makes a Lease of the lands according to the Statute of 32. H. 8. If the Lease be good by the Statute Windham and Rodes Justices conceived that it is a good Lease Fenner The Statute saith that such Lease shall be good against the Lessor and his Heirs and the Issue doth not claim as Heir to the Wife onely but it ought to be Heir to them both and he cited the case That the Statute of R. 3. makes Feoffments good against no heirs but those which claim onely as Heirs to the same Feoffors c. So here Rodes Justice There the word only is a word efficacy And Windham agreed cleerly That the Lease should binde the issue by the said Statute of 32. H. 8. Mich. 28 29. Eliz. In the Common Pleas. 120 WAlmesley Serjeant moved this Case If a man deviseth Lands in taile with divers Remainders over upon condition that if any of them alien or c. that then he who is next heir to him to whom the land ought to come after his decease if the said alienation had not been made might enter and enjoy the land as if he had been dead But Ady of the Temple said That the words of the Devise are viz. That if any of them alien or c. that then his estate to cease and hee in the next Remainder to enter and retain the land untill the aliener were dead Rodes Justice The Devise is good and an estate may cease in such manner so as it shall not be determined for ever but that his Heir after him shall have it And he put the case of Scholastica Plow Com. 408. where Weston fo 4. 14. was in some doubt that if the Tenant in talle had had Issue if the Issue should be excluded from the land or whether hee should have the land by the intent of the Devisor And therefore if it were necessary to shew that the Tenant in taile had not Tssue But Dyer said that the words of the Will were that such person and his Heirs who alien or c. should be excluded presently so as the estate by expresse words is to be determined for ever But it is otherwise in this Case Windham doubted of the Devise Fenner cited the Case 22. E. 3. 19. Where a Rent was granted and that it should ceâ—se during the Nonage of the Heir of the Grantee and it was good Windham When a thing is newly created he who creates it may limit it in such manner as he pleaseth Fenner 30. E. 3. 7. Det. 10. A Feoffment was made rendring Rent upon
Condition that if the Rent be behinde the Feoffor might enter and retain quousque there the estate shall be determined pro tempore and afterwards revived again Windham There the Feoffor shall have the land as a distress and the Free-hold is not out of the Feoffee Fenner The Book proves the contrary for the Feoffor had an Action of Debt for the Rent Mich. 28 29. Eliz. in the Common Pleas. 121 IN a Formedon the Tenant pleaded a Fine with proclamations The Plaintiff replyed No such Record It was moved that the Record of the Fine which remained with the Chyrographer did warrant the Plea and the Record which did remain with the Custos Brevium did not warrant the Plea and both the Records were shewed in Court and to which the Court should hold was the question Shuttleworth To that which was shewed by the Custos Brevium and he cited the Case of Fish and Brocket where the Proclamations were reversed because that it appeared by the Record which was shewed by the Custos Brevium that the third proclamation was alledged to be made the seventh day of June which seventh day of June was the Sunday and yet hee said It appeared by the Record certified by the Chyrographer that it was well done and yet the Judgment reversed Rodes Justice There is no such matter in the same case And 26. El. by all the Justices and Barons of the Exchequer in such case the Record which remains with the Custos Brevium shall be amended and made according as it is in the Record of the Office of Chyrographer Windham agreed And afterwards the said President was shewed in which all the matter and order of proceedings was shewed and contained and all the names of the Justices who made the Order And by the command of the Justices it was appointed that the said President should be written out and should remain in perpetuam rei memoriam And the reason of the said Order is there given because the Note which remains with the Chyrographer is principale Recordum Mich. 28 29. Eliz. in the Common Pleas. 122. AN Infant was made Executor and Administration was committed unto another durante minore aetate of the Executor and that Administrator brought an Action of Debt for money due to the Testator and recovered and had the Defendant in Execution and now the Executour is come of full age Fenner moved that the Defendant might be discharged out of Execution because the Authority of the Administrator is now determined and he cannot acknowledge satisfaction nor make Acquittances c. Windham Justice Although the Authority of the Plaintiffe bee determined yet the Recovery and the Judgement do remaine in force But perhaps you may have an Audita querela But I conceive That such an Administrator cannot have an Action for he is rather as a Bayliff to the Infant Executor then an Administrator Rodes agreed with him and he said I have seen such a Case before this time viz. Where one was bound to such a one to pay a certaine sum of money to him his Heirs Executors or Assignes And the Obligee made an Infant his Executor and administration was committed during his minority and the Obligor paid the money to that Administrator And it was a doubt whether the same was sufficient and should excuse him or not And whether he ought not to have tendred the money to them both Fenner That is a stronger Case then our Case One who is Executor of his own wrong may pay Legacies and receive Debts but he cannot bring an Action Windham Doth it appear by the Record when the Infant was made Executor and that Administration was committed as before Fenner No truely Windham Then you may have an Audita querela upon it Fenner said So we will Note Hil. 33. Eliz. in the Exchequer Miller and Gores Case An Infant pleaded in a Scire facias upon an Assignement of Bonds to the Queen That Saint-Johns and Eley were Administrators during his minority And it was holden by the Court to be no plea. But he ruled to answer as Executor Mich. 28 29. Eliz. in the Common Pleas. 123 SUggestion was made that a Coroner had not sufficient Lands within the Hundred for which a Writ issued forth to choose another and one was chosen It was moved by Serjeant Snag If theâ—eby the first Coroner did cease to be Coroner presently untill he be discharged by Writ Rodes and Windham Justices He ceases presently for otherwise there should be two Officers of one Coronership which cannot be Also the Writ is Quod loco I. S. eligi facias c. unum Coronatorem and he cannot be in place of the first if the first do not cease to be Coroner So if any be made Commissioners and afterwards others are made Commissioners in the same cause the first Commission is determined Snagg said That in the Chancery they are of the same Opinion but Fitz. Nat. Brevium 163. N. is That hee ought to be discharged by Writ Mich. 28 29 Eliz in the Common Pleas. 124 IN an Action of Debt brought against Lessee for years for rent he pleaded That the Plaintiff had granted to him the reversion in Fee which was found against him Walmesley Serjeant moved Whether by that Plea he had forfeited his terme or not Rodes and Windham Justices He shall not forfeit his Term and Rodes cited 33. E. 3. Judgement 255. Where in a Writ of Waste the Tenant claimed Fee and it was found against him that he had but an Estate for life and yet it was no Forfeiture Fenner and Windham It is a strong Case for there the Land it selfe is in demand but not so in our Case Rodes The Tenant shall not forfeit his Estate in any Action by claiming of the Fee-Simple but in a Quid juris clamat Walmesley and Fennèr Where he claimes in Fee generally and it is found against him there perhaps hee shall forfeit his Estate but where he shewes a speciall conveyance which rests doubtfull in Law it is no reason that his Estate thereby should bee forfeited although it be found against him Rodes 6. R. 2. Quid juris clamat 20. The Tenant claimed by speciall conveyance and yet it was a forfeiture But in the principall Case at Bar he and Windham did agree cleerly That it was no forfeiture Mich. 28 29 Eliz. In the Common Pleas. 125 AN Action upon the Case was brought because that the Defendant had spoken these words viz. That the Plaintiffe hath said many a Masse to J. S. c. Anderson Chief Justice Primâ facie did seem to incline That no Action would lie for the words although that a Penalty is given by the Statute against such Masse-Mongers For he said That no Action lieth for saying That one hath transgressed against a Penall Law Periam Justice contrary Anderson If I say to one That he is a disobedient Subject no Action lieth for the words Windham Justice That is by reason of the generality Puckering
it is not shewed that he used any other rite or Ceremony c. for there ought to be some Positive thing 3. He doth not shew the Place or Parish where he persisted in it and that is materiall and issuable The fourth Exception was Because it was Inquisitio câ—pta coram Johanne Peter Waltero Mildmay and so named four of them by vertue of a Commission directed to them and to others and doth not shew what others nec quod illi fuerunt praesentes and then if the Commission were to them all jointly and two only were present then it was coram non judice and so void 5. The Statute saies That if any Parson or Vicar but doth not say being Minister Dei. The sixth was That it was at another Church c. Wray Chief Justice If this Evasion should be allowed the Statute were not to the purpose The seventh was That it doth not shew where the persisting was for that is a speciall thing and materiall and issuable Wray Chief Justice conceived That that only was a materiall Exception and that the other Exceptions were but frivolous and were not good Hill 29. Eliz. In the Kings Bench. 138 WARREN's Case ONE Warren demanded by a Writ of Debt in the Common Pleas Forty Pound and upon his Declaration did confess himselfe satisfied of Twenty Pound and thereupon Error was brought in the King's Bench And the Judgement reversed because by his Declaration he had abated his Writ and he ought to have Judgement according to his Writ and not according to his Declaration The Error assigned was in the Outlawry and it was holden by all the Justices That if the principall Record be reversed for Error that the Outlawry which is grounded upon it shall be reversed also Hill 29. Eliz. in the Kings Bench. 139 ROOTE 's Case THE Case was in a Prohibition touching Tithes and the libell in the Spirituall Court was for Corn and Hay and other things and the Tenant of the land did prescribe to pay in one part of the land the third part of the tenth and in another part the moity of the tenth of Corn for all manner of Tithes And the Court did incline that the same was a good prescription And a Prohibition was granted to the Ecclesiasticall Court Hill 29. Eliz. in the King 's Bench. 140 A Man was possessed for the terme of six years of a Tavern in London and leased the same unto another for three years and it was convenanted betwixt them that during the three years quolibet mense monthly the lessee should give an Account to the lessor of the Wine which he sold and should pay unto him for every Tun sold so much money And afterwards the lessor granted the three years which were remaining of the six years to another and he did request the lessee to account and he would not whereupon he brought an Action of Covenant and the Defendant pleaded That he had accounted to the Assignee of the three years and upon that there was a Demurrer joyned And the better opinion of the Court was that it was no Plea because it was not a Covenant which did go with the land or the Reversion but was a collaterall thing and did not pass by the assignment of the three years Hill 29. Eliz. in the King 's Bench. 141 IT was adjudged That the bringing of a Writ of Error to reverse a Fine by an Infant during his nonage is not sufficient but the Fine by Judgement in the Writ of Error must be reversed during his Nonage Hill 29. Eliz. in the Common Pleas. 142 WIDALL and Sr. JOHN ASHTON's Case A Writ of Error was brought by Widall against Sr. John Ashston because in the other action being an action of Wast The Plaintiff there did declare that he was seised and so seised demisit pro termino annorum c. and did not shew of what estate he was seised And yet he did suppose that it was ad exhaeredationem ejus c. And the same by Beamount was taken for an exception as 7. H. 6. A man pleaded a Feoffment to two haeredibus and doth not say suis it is uncertain And in the principal Case it shall be supposed that he hath but an estate for life for it shall not be intended that he hath an estate of Inheritance without expressing of words to carry an Inheritance As 7. Ass If I grant a Rent to I. S. and do not name what estate he shall have in it he shall have but an estate for life But he said that the Presidents are that if the word seised had been left out it had been good enough For by the Book of Entries a man may say demisit without saying that he was seised demisit But if a man will plead a thing which is not necessary to be pleaded and mistake it it shall make his Plea naught as in Patridges Case Where a suite was upon the Statute of Maintenance It is sufficent to say contra formam Statuti But if he will plead specially the day and place of the Statute and mis-plead it it makes all naught Suit Justice I conceive that that is a fault incurable But upon the other side it was argued that in 21. H. 7. It is holden that he might plead quod demisit without that that he was seised and demisit as there in an Action of Debt And therefore it is but surplusage in the principal Case Vide 15. E. 4. A good Case where surplusage shall not hurt because it is not traversable And he urged that by the Statute of 18. El. the Declaration doth not abate for matter of form And he said that Counts and Declarations shall be taken by Intendment and it shall be intended that if bringeth Wast that he hath such an estate that he may maintain such Action In Adams Case in the Commentaries One shewed that such an Abbot was seised and that the Land came unto the King by Dissolution and that the King being seised did grant the same and did not shew of what estate the King was seised and yet it was holden good See a good Case to this purpose 18. E. 3. Formedon 58. And he said that the Defendant had pleaded Nul wast fait and therefore he had by his Plea affirmed the Declaration to be good Beamount He ought to have said reversione inde sibi haeredibus c. Clenche Justice I conceive that the Statute of 18. El. helps that Suit Justice No truly It was adjourned Hill 29. Eliz. in the Common Pleas. 143 AN Action of Covenant was brought by a Man against another who had been his Apprentize The Defendant pleaded that he was within age The plaintiff did maintain his Action by the Custome of London Where one by Covenant may binde himself within age And Exception was taken to it That that was a Departure Daniel It is no Departure for by 18. R. 2. an Infant brought an Action against Gardian in Socage and the
Eliz. in the Common Pleas. 146 LONDON doth prescribe to have a Custom That after Verdict given in any of the Sheriffs Courts or such like Court there that the Maior may remove any such Suit before himself and as Chancellor secundùm bonam sanam conscientiam moderate it and it was moved whether it were a reasonable custom or not because that after tryal by ordinary course at Law he should thereby stay judgment Gaudy Justice It ought to be before judgment otherwise it cannot be for the Statute of 4. H. 4. is that judgment given in any Court shall not be reversed but by Error or Attaint Vide Rastal Tit. Judgment Mich. 28. Eliz. in the Common Pleas. Rot. 2619. 147 GREENE and HARRIS Case IN an Ejectione firme upon a special Verdict it was found that one John Brenne was seised of a Manor where there were Copyholders for life and by Indenture leased a copyhold called Harris Tenure parcel of the Land in question to Peter and John Blackborow for eight years to begin after the death of Brenne his Wife and by the same Indenture leased all the Manor to them as before The Copyholder did surrender and Brenne granted a copy to hold according to the custom of the Manor Brenne and his Wife died So as the lease of Blackborow was to begin Peter entred and granted all his Interest unto a stranger and died John entred into the whole as Survivor and made a lease thereof to the Plaintiff and the Copyholder entred and he brought the action Shuttleworth for the plaintiff The question is whether the plaintiff shall have Harris Tenure as in gross or as parcel of the Manor and he conceived that because it is named by it self that it shall pass as in gross for so their intent appeareth to be In 33. H. 8. Dyer 48. A Feoffment was made of a Manor to which a Villein was Regardant by these words viz. Dedi unam acram c. And further Dedi concessi Villanum meum and there it was holden that the Villein should pass as in gross and that they were several gifts although there was but one Deed. The same Law shall be of an Advowson appendant 14. and 15. El. Dyers Husband and Wife were joint-tenants in Fee of a Manor out of which the Queen had a Rent of twenty pound per annum and she by her Letters patents in Consideration of Money paid by the Husband did give grant release and remise unto the Husband and his heirs the said twenty pound Rent habendum percipiendum to him and his heirs The Husband did devise the Rent unto another and his heirs and dyed There it is debated whether the Wife should pay the Rent or not and it was holden that she should pay it for the deed having words of grant and release it shall be referred to the Election of the Husband and for his best avail how he will take it and there is no necessity that the Rent be extinguished in his possession for it is a maxime in Law that every grant shall be taken beneficially for the grantee so is it if it contain words of two intents he may take that which makes best for him 21. and 22. H. 6. A deed comprehending Dedi concessi was pleaded as a Feoffment In 5. E. 3. A Rent issuing out of Lands in Fee was granted to Tenant by the courtesie to have and to hold to him and his heirs It shall not be taken as extinct but the Rent shall go to his heires although he himself could not have it Then in our Case because it is more beneficial for the Termor he shall have it in gross And so he shall avoid the Estate of the Copyholder afterwards and here is an Election made by Peter so to have it by the grant of his Interest over Our Case is not like unto the Case of 48. E. 3. 14. Where a Cessavit was brought supposing that the House was holden of the Plaintiff by five Shillings and the Defendant pleaded that the Ancestor of the Plaintiff by his deed which he shewed forth gave the house to him and a shop which are holden by one intire service and demanded judgment c. And there it was holden that that deed did not prove but that the shop might be parcel of the house and not a shop in gross by it self And there Finchdon saith That if a man grant the Manor of F. to which an Advowson is appendant and the Advowson of the Church of F. so as it is named in gross yet it shall pass as appendant I yeild to that for there it is not more beneficial for him the one way or the other as it is in our Case It may be perhaps objected That the Plaintiff here shall not recover at all for the cause alleadged in Plo. Comm. 424. in Bracebridges Case because that the action is brought for a certain number of Acres as one hundred Acres and it is found that the Plaintiff hath right but to a moyty of them But it hath been ruled against that viz. that he shall recover Walmesley Sergeant contrary Notwithstanding that this Copy-hold be twice named yet it shall pass as parcel of the Manor and not as a thing in gross and there is but one Rent one Tenure and one reversion of both 45. E. 3. A Fine was levyed of a Manor unto which an Advowson was appendant wherein a third part was rendred back to one for life with divers Remainders over And so of the other two parts with the advowson of every third part as abovesaid and there it is debated who shall have the first avoidance And it is holden notwithstanding the Division as aforesaid and the naming of one before the other that they are all Tenants in common of it So as if they cannot agree to present that Lapse shall incurre to the Bishop and there no Prerogative is given to him who is first named nor any prejudice to the last named for being by one Deed it shall passe uno flatu 14. H. 8. 10. A Lease was made for a year Et sic de anno in annum c. And there it was debated whether it were a severall Lease for every year and it was ruled That an Action might be brought supposing that he held for one and twenty years if in truth by force of the same Demise the Lessee occupy the Land so long And if I by my Deed grant unto A. and B. the services of I. D. and by the same Deed the services of I. S. are also granted unto them they are Joyn-tenants of the Services or Seignories So if I lease a Manor reciting every parcell of the Land of the Manor for the whole consists in severall parcels In 33. H. 8. before remembred It is said That the Advowson shall be appendant if the whole Manor be granted c. But if it be admitted that there be severall Leases and that it passeth as a thing in grosse
Chief Justice did conceive it might be a good custome and so also was the opinion of Rodes Justice and he vouched 11 H. 7. where the Lord had Three Pound for Pound-breach Fenner It is extortion if the amercement be not for a thing which is a common Nusans and cited 11 H. 4. to prove it Periam Justice said That hee said well Pasch 28 Eliz. In the Common Pleas. Rot. 1962. 159 GILE'S and NEWTON'S Case THE Case was That the Queen seised of the Manor of Gascoigne and of the Graunge called Gascoigne Graunge in D. did grant all her Lands Tenements and Hereditaments in D. and it was adjudged by the whole Court that the Manor did not pass And so Anderson Chief Justice said it is if it were in the Case of a common person but an Advowson shall passe by the Feoffment of the Manor without Deed without the words cum pertinentiis for that is parcell of the Manor which the whole Court granted Pasch 23. Eliz. in the Common Pleas. 160 J. S. was arrested by force of a Latitat out of the King's Bench at the Suit of J. D. and the Sheriffe took an Obligation of him with two Sureties upon condition that he appear such a day in the King's Bench and also that ad tunc ibidem he answer the said J. D. in a Plea of Trespass It was moved by Rodes Serjeant That the Obligation was void by the Statute of 23. H. 6. by which Statute no Obligation shall be said to be good if not for appearance only and this Obligation is for appearance and also that he shall answer to J. D. which is another thing then is contained in the Statute and therefore it is void But all the Justices were of opinion That the Obligation was good notwithstanding that because that the words of the Writ directed to the Sheriffe are Quod capias such a man It a quod habeas corpus ejus hîc such a day ad respondendum tali in a Plea of Trespasse and so nothing is contained in the Bond which is not comprised within the Writ directed unto him but if any other collaterall thing be put into the Obligation then the Bond shall be void for the whole 31. Eliz. in the Common Pleas. 161 BUCKHURST'S Case LEssee for ten years granted a rent charge unto his Lessor for the years Afterwards the Lessor granted the Remainder in Fee to the Lessee It was the opinion of the whole Court that the rent was gone and extinct because the Lessor who had the rent is a party to the Destruction of the Lease which is the ground of the Rent 29. Eliz. In the King 's Bench. 162 ALLEN and PATSHALL'S Case A Copy-holder doth surrender unto the use of a Stranger for ever and the Lord admits the Surrendree to have and to hold to him and his Heirs It was adjudged in this Case That if it were upon a devise that such a one should have the Copyhold in Fee and afterwards a surrender is made unto the Lord to grant the Copy-hold according to the Will and he grants it in Fee to him and his Heirs that the Grant is good But quaere in the first Case for it was there but a bare Surrender only Mich. 27 28. Eliz. in the King 's Bench. 163 STRANGDEN and BARNELL'S Case AN Action of Trover and Conversion was brought of Goods in Ipswich the Defendant pleaded That the Goods came to his hand in Dunwich in the same County and that the Plaintiffe gave unto him the goods which came to his hands in Dunwich absque hoc that he is guilty of any Trover and Conversion of Goods in Ipswich And by the opinion of the Court the same is a good manner of Pleading by reason of the speciall Justification Vide 27. H. 6. But when the Justification is generall the County is not traversable at this day Vide 19. H. 6. 6 7. Mich. 27. Eliz. in the Kings Bench. 164 BARTON and EDMOND'S Case AN Infant and another were bounden in a Bond for the Debt of the Infant The Infant at his full age did assume to save the other man harmelesse against the said Bond afterwards the Infant died It was resolved by the whole Court that upon this Assumpsit an Action upon the Case would lie against the Executors of the Infant But if a Feme Covert and another at her request had been bounden in such a Bond and after the death of her Husband she had assumed to have saved the other harmelesse against such Bond such Assumpsit should not have bound the Wife Trinit 29. Eliz. in the Common Pleas. 165 ZOUCH and BAMPORT'S Case THis Case was moved When the Defendant pleads in Bar to the Action and the Plaintiffe replies and the Defendant doth demur specially upon the Replication and the Bar is insufficient Whether the Justices shall give Judgment upon the Replication or shall resort unto the insufficient Bar the Replication being also insufficient And the opinion of the Court was That when the Action is of such a nature that the Writ and the Count doth comprehend the Title as in a Formedon and the like then because there is a sufficient title for the demandant by the Writ and the Count so as the Judges may safely proceed to Judgement for the Plaintiffe there they shall resort to the Barr. Contrary in Cases where the Title doth commence only by the Replication as in Assize Trespass and the like 40. Eliz. in the Exchequer 166 NOte it was said by Sir Francis Bacon the King's Solicitor That it was adjudged 40. Eliz. in the Exchequer That where the King had made a Lease for life who was ousted by a Stranger that the same should be said a Disseisin of the particular estate against the common ground which is That a man cannot be disseised of lesse estate then of a Fee-Simple 40. Eliz. in the Kings Bench. 167 IT was holden and adjudged by Popham Chief Justice of the Kings Bench That where a Lease was made unto the Husband and Wife for their lives the remainder to the Heirs of the Survivor that the same was a good remainder notwithstanding the uncertainty and that in that Case the Husband after the death of the Wife should have Judgement to recover the Land 33. Eliz. in the Common Pleas. 168 PROCTER'S Case IT was adjudged in this Case That the Lachess of the Clark in not entring of the Kings Silver shall not prejudice the King or the Crowne 30 Eliz. In the Kings Bench. 169 HARDING'S Case IT was holden by the whole Court of Kings Bench as it was reported by Sir Robert Hitcham Knight That if a man make a Lease of Copy-hold land and of Free-hold land rendring Rent and the Copy-hold descends to one and the Free-hold to another that the rent shall be apportioned Trinit 25. Eliz. in the Common Pleas. Rot. 1702. 170 LEONARD and STEPHEN'S Case IN Trespass the issue joyned was Whether it were a Feoffment or not and
condition 3 Jacobi in the Star-Chamber 186 RUSWELL'S Case A Man took away Corne in the night time to which he had a right and was punished for a Riot in the Star-Chamber because of his company only Hillar 3. Jacobi 187 KINGSTON and HILL'S Case AN Action upon the Case was brought for saying these words viz. Thou art an arrant Papist and it were no matter if such were hanged and thou and such as thou would pull the King out of his Seat if they durst Adjudged that the words were not actionable Et quod querens nihil capiat per Billam Pasch 3 Jacobi in the Common Pleas. 188 NOte It was holden by the Court That if a Fierifacias go to the Sheriffe to do Execution and he levieth the money and delivereth the same to the party yet if it be not paid here in the Court the party may have a new Execution and it shall not be any Plea to say That he hath paid the same to the party for it is not of Record without bringing of the money in Court Vide 11. H. 4. 50. ar Pasch 3. Jacobi in the Common Pleas. 189 DUKE and SMITH'S Case NOte That if he in the reversion suffer a recovery to divers uses his Heirs cannot plead That his father had nothing in the Land at the time of the recovery for he is estopped to say That he was not Tenant to the Praecipe And it was agreed â—That it was a good recovery against him by estoppel Quaere this case Mich. 3. Jacobi in the King's Bench 190 BIRRY'S Case BIrry was committed by the High Commissioners and removed by Habeas corpus into the Kings Bench They returned the Writ with a Certificate That they did commit him for certain causes Ecclesiasticall which generall cause the Court did not allow of They certified at another time That it was for unreverent Carriage and sawcie Speeches to Doctor Newman The Court also disallowed of that cause Birry put in Bail to appear de die in diem and was discharged It was holden That if Birry did not put off his Hat to him or not give him the wall the same were not sufficient causes for them to commit him And it was agreed by the whole Court That whereas the said Commissioners took Bonds of such as they cited to appear before them to answer unto Articles before that the party had seen the Articles that such Bonds were void Bonds Mich. 3. Jacobi in the King 's Bench. 191 ANN MANNOCK'S Case ANN Mannock was indicted in Suffolk upon the Statute of 1. El. cap. 2. for not coming to Church twelve Sundayes together which Indictment was removed into the Kings Bench and Exceptions taken unto it 1. That the Statute is That all Inhabitants within the Realme c. and it is not averred in facto that she did inhabit within the Realme and the Exception was disallowed for if it were otherwise it ought to be shewed on the Defendants part The second Exception That by a Proviso of the Statute of 28. Eliz. cap. 6. it is ordained That none shall be impeached for such offence if he be not indicted at the next Sessions and it appears by the Indictment That the Offence was almost a year before the Indictment and in the mean time many Sessions were or debuerunt to have been And that Exception was also disallowed for perhaps the truth is That there was not any Sessions in the mean time although there ought to have been The third Exception That the Indictment was That she was indicted Coram A. B. sociis Justices of Peace and it doth not name them particularly The Exception was disallowed for that it doth not appear that there were any other Justices there and what was their names And therefore it was said That it differs from the Case of 1. H. 7. of a Fine levied Câ—raâ— A. B. â—â—â—iis suis The fourth Exception was That the words of the Statute are Ought to abide in the Church till the end of Common Prayer Preaching or other Service of God in the Disjunctive and the Indictment was in the Conjunctive The Exception was disallowed for although the words are in the disjunctive yet a man cannot depart so soon as the Service is ended if there be preaching but he ought to continue there for the whole time Pasch 4. Jacobi in the King 's Bench. 192 AN Enfant did acknowledge a Statute and during his Nonage brought an Audita querela to avoid the Statute and had judgment The Conusee at the fall age of the Enfant brought a Writ of Error and reversed the judgment given in the Audita querela and the Enfant the Conusor prayed a new Audita querela but it was denyed by the whole Court Mich. 4. Jacobi in the Common Pleas. 193 PETO and CHITTIE'S Case IT was adjudged in the Court of Common Pleas in this Case That concord with satisfaction is a good plea in Barre in an Ejectione firme Mich. 5. Jacobi in the King 's Bench. 194 TWo Men were bound joyntly in a Bond one as principal and the other as surety the principal dyed Intestate the surety took Administration of his goods and the principal having forfeited the Bond the surety made an agreement with the Creditor and took upon him to discharge the Debt In Debt brought by another Creditor the question was upon fully administred pleaded by the Administrator If by shewing of the Bond and that he had contented it with his own proper Mony whether he might retain so much of the Intestates estate and it was adjudged that he might not For Flemming Chief Justice said that by joyning in the Bond with the principal it became his own Debt Pasch 5. Jacobi in the Common Pleas. 195 TAYLOR and JAME'S Case IN a Replevin by John Taylor against Richard James for taking of a Mare and a Colt in Long Sutton in a place called H. in the County of Somerset The Defendant did avow the taking and shewed That Sir John Spencer was seised of the Manor of Long Sutton whereof the place where c. is parcel and that he and all those whose estate he hath in the said Manor c. have had all Estrayes within in the said Manor and shewed that the Bailiff of Sir John Spencer seised the said Mare and Colt as an Estray and proclaimed them in the three next Market Towns and afterwards the Baiâ—iff did deliver them to the Defendant to keep in the place where c. And if any came and challenged them and could prove that the same did belong to him and pay him for their meate that he should deliver them unto him and then shewed how that the Plaintiff came and claimed them for his own and because he would not prove that they did belong unto him nor pay him for their meate c. he would not deliver them upon which plea there was a Demurrer in Law After argument by the Serjeants Cook Chief Justice said that it was a
plain Case for the Plaintiff the reason of Estrayes was because when there is none that can make title to the thing the Law gives it to the King if the Owner doth not claim it within a year and a day and also because the Cattel might not perish which are called Animalia vagantia c. But the Defendants plea is not good because the Defendant is to keep them until proof be made unto him and the Law doth not take notice of any proof but by twelve Men which the Defendant cannot take 7. H. 2. Barre 241. But if the Owner can make any reasonable proof as if he shew the Markes c. it is sufficient and the party suo periculo ought to deliver to him the Estray Secondly It is not sufficient to keep the Estray within the Manor but it ought to be kept in a place parcel of the Manor Thirdly It ought to be in Land in the possession of Sir John Spencer and not of any other and it doth not appear that that Land was in his possession Fourthly If they do go in the Land of Sir John Spencer Yet it is absurd to maintain that the Bailff might delegate his power to another to keep them until he be satisfied Walmesley Justice agreeeth for when it is spoken generally of proof it shall be taken for judicial proof which needeth not in his Case for these Vagrant Beasts and the party shall not be his own Judge but as it hath been remembred upon the Statute of Wrecke si docere poterit if he can instruct him and give him any reason wherefore the Estray doth appertain unto him he ought to deliver it suo periculo Also it is cleer that agreement ought to be made with the party for the victual and the quantity thereof shall be tryed in this Court if it come in question as the quantity of Amends in a Replevin Warbarton agreed and said That an Estray ought not to be wrought but the party must agree for his meate also the Lord cannot put the Owner to his Oath but if the party doth tell the Marks it is sufficient and he ought to deliver it at his peril and if he require more then belongs to him for the Meate it is at his peril for this Court shall jugde of that Daniel agreed and said That the Lord ought to proclaim them and in his Proclamation ought to shew of what kinde the Estray is whether sheep Oxe Horse c. and ought to tell his name who seised them so as the Owner might know whither he might resort for his Cattel and then it ought to be kept within the Lordship and Manor which may extend into several Counties Cook said that the Owner ought not to be pressed to his Oath Pr. Cases 217. Pasch 5. Jacobi in the Common Pleas. 196 LANGLEY and COLSON'S Case AN Action upon the Case was brought by Langley against Colson for these words viz. Richard Langley is a Bankrupt Rogue I may well say it for I have payed for it and it was adjudged for the Plaintiff for by all the Justices the first words are Actionable although the word Bankrupt be spoken adjectivè because they scandalize the Plaintiff in his Trade At the same time another Action was brought by another Man for speaking these words viz. Thou art a Bankruptly Knave and canst not be trusted in London for a Groat and it was adjudged that the words were not Actionable because the words were spoken adjectivè and adverbialitèr and are not so much as if he had called him Bankrupt Knave but Bankruptly viz. like a Bankrupt Pasch 5. Jacobi in the Common Pleas. 197 BALLET and BALLE'TS Case AWarrantia Charta was brought by Thomas Ballet the younger against Thomas Ballet the elder and the Writ was of two Messuages and the moytie of an Acre of Land unde Chartam habet c. and declared whereas himself and the Defendant and one Francis Ballet were seised in the new Buildings and of one piece of Land adjoyning c. in the Tenure c. containing from the East to the West twenty foot by assize and from the North part to the South thirty foot and the said Thomas the elder and Francis did release unto him all their Right in c. the said Thomas the elder for him and his heirs did Warrant tenementa praedict ' to the said Thomas the younger and his heirs The Defendant did demand Oyer of the deed and thereby it appeared that the said Thomas and Francis and one R. did release to him all their Right in c. And that Thomas the elder for him and his heirs did Warrant tenementa praedict ' to Thomas the younger his heirs and that Francis by another clause for him and his heirs did Warrant tenementa praedict ' to Thomas the younger and his heirs upon which it was Demurred in Law and after Argument by the Serjeants some matters were unanimously agreed by all the Justices First that upon such a release with Warranty contra omnes gentes a Writ of Warrantia Charta lyeth Secondly although that every one passeth his part onely viz. a third part yet every one of them doth Warrant the whole and because they may so do and the words are general without restraint by themselves the Law will not restrain them The words are that they do Warrant tenementa praedict ' which is all the premisses Thirdly For the reason aforesaid It needs not to be shewed how they hold in jointure Fourthly that the Writ is well brought against one onely because the Warranties are several But if they had been joint Warranties then it ought to have been brought against them both so against the Survivor the heir of one of them and if they had both dyed against both their heirs so as it differs from an Obligation personal which onely binds the Survivor Fifthly that the Writ was well brought for the things as they are in truth without naming of them according to the Deed. Sixthly that if there be new Buildings of which the Warranty is demanded which were not at the time of the Warranty made and after the Deed is shewed the Defendant shall not have any benefit by Demurring upon it But if he will be aided he ought for to shew the special matter and enter into the Warranty for so much as was at the time of the making of the Deed and not for the residue Vide Fitz. Warrantia Charta 31. Seventhly that a Warrantia Charta doth not lye of a piece of Land no more then a Praecipe quod reddat nor of a Selion of Land Mich. 5. Jacobi in the Kings Bench. 198 AN Action upon the Case was brought for these words viz. Thou hast spoken words that are treason and I will hang thee for them It was adjudged by the whole Court that the words were actionable Mich. 5. Jacobi in the Kings Bench. 199 A Man was bound to pay twenty pound to another when he should
be out of his Apprentiship and he died within the time the Executors shall not have the money otherwise if the Bond had been to pay money after the expiration of ten years Adjudged Mich. 5. Jacobi in the Kings Bench. 200 GAGE and PEACOCK's Case IT was adjudged in this case That if Lessee for years of a Manor take a Lease of the Bailiwick of the Manor that it is no surrender of his term because it is of a thing which is collaterall Mich. 5. Jacobi in the Common Pleas. 201 IF a Parson have a Benefice above the yearly value of eight pound and afterwards he taketh another Benefice with a dispensation and afterwards he taketh a third Benefice his first Benefice is onely void Adjudged per Curiam Mich. 5. Jacobi in the Common Pleas. 202 A Man in consideration of Marriage doth assure and promise to do three severall things For the not performance of one of them the party to whom the promise is made bringeth an Action upon the case and to enable him to the Action sayes That the Defendant in consideration of Marriage did promise him to performe the said thing for which the Action is brought without speaking of the other two things The Defendant by plea in barre said Non assumpsit modo formâ And the opinion of the Court was that it was a good issue For the Contract being entire if it be not a good plea the Defendant might be charged for the severall things which cannot be being but one contract by word But it is otherwise of severall contracts in writing Trinit 5. Jacobi in the Kings Bench. 203 Sir JOHN SPENCER and POYNT's Case SIr John Spencer made a Lease for years unto Sir John Poynts rendring rent by Indenture The Lessee covenants that if the rent be behind at any time of payment according to the forme of the Indenture that the Lessor shall have two hundred pound Nomine poenae for such default The rent is behind Sir John Spencer brought Debt for the Nomine poenae The Question was Whether without Demand of the rent debt did not lie for the Nomine poenae And the better opinion of the Court was that the Action of Debt did not lie Vide Fitz N. B. 120. seems contrary 5. Jacobi at the Sessions at Newgate 204 IT was adjudged upon the Statute of 1 Jacobi of desperate Stabbing to be Felony without Clergy That because that the party had a cudgell in his hand That that was a weapon drawn within the intent of the Statute And the party was thereupon arraigned of Felony and not of Murder and admitted to his Clergy Mich. 5 Jacobi in the Kings Bench. 205 NOte It was holden by the whole Court That if a man appeareth upon a Scire facias That he shall not have an Audita Quereba because he had notice in facto otherwise if he had appeared upon the 2. Nichil returned which amounts to a Scire feci for there he hath not notice in fact But it was said That the course is otherwise in the Common Pleas. Mich. 6. Jacobi in the Kings Bench. 206 JOHNSON's Case IN an Accompt the Defendant was adjudged to account and the parties were at issue before Auditors and the Plaintiffe was Non-suit The Question was Whether he should have a Scire facias against the Defendant to account upon the first Originall and the better opinion of the Court was That he should not but should be put to a new Writ of Account according to the opinion of Townsend in 1. H. 7. against 21. E. 3. and 3. H. 4. Mich. 6. Jacobi in the King 's Bench. 207 NOte It was holden by Justice Williams and not denied by any other of the Justices That if Lands be given to one and his heir that the same is a Fee-simple because the word Heir is Collectivum Mich. 6. Jacobi in the Kings Bench. 208 HARLOW and WOOD's Case IN an Action of Trover and Conversion the Case was A stranger delivered the Horse of Harlow to an Inholder Harlow came to him and demanded his horse who refused to deliver it to him if hee would not save him harmelesse and indamnified But because the pleading was Quod quidem homo did deliver to him and did not shew his name certain The Plea was adjudged not to be good Mich. 6. Jacobi in the Kings Bench. 209 Sir ROBERT BARKER and FINCHE'S Case A Man made a Lease for years rendring Rent at Michaelmas and the Annunciation of our Lady he in the reversion bargained and sold the same to a Stranger who gave notice thereof to the Lessee The day of the payment came the Lessee paid the rent to the Bargainor and then the Deed was enrolled The question was Whether the Bargainee should have the rent by relation so as the Bargainor should be charged in account to the Lessee for the rent first paid And the Court was of opinion That the Bargainee should not have the rent Dodderidge Serjeant If the rent be paid to an administrator who hath right for a time and afterwards a Will is found and proved so as it appeareth upon the matter that there was an Executor and by consequence no administration could be the rent shall be paid by him again to the Executors Quaere Mich. 6. Jacobi in the Kings Bench. 210 Grissell and Sir Christopher Hodsdens Case IN this Case it was agreed for Law That if two Lords be Tenants in Common of a Waste and each of them hath a Court in which are divers By-lawes made it ought to be presented by the Homage That such a one hath not any thing in the Common ad exhaeredationem Domini and no Dominorum notwithstanding that they are Tenants in common Mich. 6. Jacobi in the Kings Bench. 211 LEE and SWAN'S Case AN Action upon the Case was brought for speaking of these words viz. The Plaintiffe being a Town Clark took forty shillings for a Bribe And by the whole Court the words adjudged Actionable Mich. 6. Jacobi in the King 's Bench. 212 BRIGG'S Case ACtion for the Case for words You have bought a Roan stollen Horse knowing him to be stollen It was adjudged That the words were Actionable Mich. 6. Jacobi in the Kings Bench. 213 IT was adjudged in this Court That an Ejectione firme doth lie de aquae cursu Mich. 6. Jacobi in the Kings Bench. 214 A Man was indicted for a common Barrator Anno Regni Domini nostri Jacobi sexto and the word Regis was left out of the Indictment and for that cause the Indictment was quashed It was Nelson and Toyes Case Mich. 6. Jacobi in the Kings Bench. 215 IT was adjudged in this Court That if the Wife of a Lessee for years doth assent a to Livery made of the house in the absence of her Husband although that the servants and children be and continue in the house that it is a good Livery Quaere If the wife notwithstanding her assent doth continue in the house But if a man doth
commit his house to his servants and the one doth assent to the Livery and departeth the house if the other do continue there and Livery be made it is no good Livery of Seisin Mich. 6. Jacobi in the Kings Bench. 216 IT was holden for Law in this Court That if a man do offend against any Penal Law the Informer ought to begin his Suit within one year after the Offence done otherwise he shall not have the moity of the Penalty And if the Informer hath put in his Information although that the party be not served with Process to answer it yet the same doth appropriate the Penalty unto him Hill 6. Jacobi in the Common Pleas. 217 PEREPOYNT'S Case PErepoynt procured one to convey the daughter of a Gentleman and to marry her to a Ploughman in the night and procured a Priest to marry them and was there present for which matter he was excommunicate by the Ordinary of the Diocess and after absolution he was for the same committed to Prison by the High Commissioners It was holden by the Court That matters concerning Tithes Marriage or Testaments are not examinable before them yet because that he had suffered imprisonment for such things and that neither the Statute of 23. H. 8. nor the Cannon doth extend to the High Commissioners it was resolved That if upon submission to the Commissioners they would not set him at liberty that this Court would do it Mich 6. Jacobi in the Star-Chamber 218 IT was resolved by the whole Court of Star-Chamber That if a man doth assist one who is a Plaintiffe in that Court that it is not maintenance because that it is for the benefit and advantage of the King But if a man do assist an Informer in another Court in an Information upon a Penall Law the same is such a Maintenance for which he may be punished in this Court 6. Jacobi in the Common Pleas. 219 IT was adjudged in this Court That if Land which was sowed be leased to one for life the Remainder to another for 〈◊〉 That if the Tenant for life dieth before the severance of the Corn 〈…〉 in the Remainder shall have the Corn. Mich. 6. Jacobi in the King 's Bench. 220 THE Lessee of a Copy-holder was distrained for rent behind in the time of his Lessor and the Lessee did assume and promise That he would satisfie the Lord his rent if he would surcease the suing of him It was adjudged by the whole Court That it was a good Assumpsit and a good consideration Mich. 7. Jacobi in the King 's Bench. 221 PIGGOT and GODDEN's Case NOte It was in this Case agreed by the whole Court and so adjudged That in an Ejectione firme a man shall not give colour because the Plaintiffe shall be adjudged in by title Mich. 7. Jacobi in the King 's Bench. 222 TWo Tenants in Common brought an Action upon the Case for stopping of a water course against a Stranger whereby the profits of their Lands were lost and it was shewed in pleading that the water had run time out of minde ante diem Obstructionis and Judgment was given for the Plaintiffs And two Exceptions were taken by Coventry First that Tenants in Common ought to have several Actions and not have joyned Secondly that the Custom ought to have been pleaded to continue ante usque die Obstructionis and both the Exceptions were dissallowed by the Court and it is not like the Case of Falsefails in which Action they must join because the same is in the Realty Mich. 7. Jacobi In the King 's Bench. 223 CROSSE and CASON's Case AN Action of Debt was brought upon due Obligation the condition of which was that the Obligee the 18. of August anno 4. Jacobi should go from Algate in London to the Parish Church of Stow-Market in Suffolk within 24. hours and the Obligee shewed that he went from Algate to the said place and because he did not shew in his Declaration in what Ward Algate was It was holden not to be good Mich. 7. Jacobi in the King 's Bench. 224 NOte That it was adjudged to be Law by the whole Court that if a man bail goods to another at such a day to rebail and before the day the Bailee doth sell the goods in market overt Yet at the day the Baylor may seise the goods for that the property of the goods was alwaies in him and not altered by the Sale in market overt Mich. 7. Jacobi in the Common Pleas. 225 ZOUCH and MICHIL's Case AN Enfant Tenant in tail did suffer a Recovery by his Gardian It was holden by the Court that the same should binde him because he might have remedy over against the Gardian by Action upon the Case But otherwise if he suffer a Recovery by Attorney for that is void because he hath not any remedy over against him as it was adjudged 4. Jacobi in Holland and Lees Case Pasch 8. Jacobi In the Common Pleas. 226 WILSON and WORMAL's Case IN an Evidence given to a Jury it was admitted without Contradiction that if judgment in an action of Debt be given against Lessee for years and afterwards the Lessee alieneth his Term and after the year the Plaintiff sueth forth a Scire facias and hath Execution That the Terme is not lyable to the Execution if the Assignement were made bona fide Also in that Cook Chief Justice said that if Lessee for years assignee over his Terme by fraud to defeat the Execution And the Assignee assigneth the same over unto another bona fide that in the hands of the second Assignee it is not lyable to Execution Also in this Case it was said for Law That if a Man who hath goods but of the value of 30. pound be endebted unto two Men viz. to one in 20. pound and to another in 10. pound and the Debtor assignes to him who is in his debt 10. pound all the goods which are worth 30. pound to the intent that for the residue above the 10. pound debt he shall be favourable unto him This Assignement is altogether void because it is fraudulent in part But Foster Justice said that it shall not be void for the whole but onely for the surplusage as Twynes Case C. 3. part 81. Quaere Pasch 8. Jacobi in the Common Pleas. 227 BRISTOW and BRISTOWE's Case IN an Action of Covenant the Case was this Lessee for 90. years made an Assignement for part of the Term viz. for 10. years and the Assignee covenated to repair c. The first Lessee devised the Reversion of the Term and dyed the Devisee of the Reversion brought an Action of Covenant against the Assignee for 10. years and the question was If the Devisee of the Reversion being but a Termor were within the Statute of 32. H. 8 of Conditions Secondly whether the Action would lye because no notice was given of the grant of the Reversion Dodderidge Serjeant to the first point said that this
Statute to enclose For the Statute is When any man fels trees in his proper soile so that he not being owner of the ground he is not within the Statute and that was the effect of his argument And as to the other point he did not speak at all Cook chief Justice I hold that the plaintiffe ought to have judgment all the matter doth consist upon the Statute of 22. E. 4. which is to be considered And first is to be considered what was the common Law before that Statute and that was That one who had a Wood within a Forrest might fell it as it appeareth by the Statute de Forresta and the Statnte of 1 E. 3. 2. by licence and also he might enclose it for three yeers as it appeareth by the Statute of 22. E. 4. but the enclosure was to be cum parvo fossato haia bassa as it appeareth by the Register in the Writ of Ad quod damnum so as before that Statute there was an enclosure But the Law is cleer That before that Statute by the enclosure the Commoner shall not be excluded Then wee are to consider of the Statute And first Of the persons to whom the Statute doth extend and that appeareth by the preamble to be betwixt the King and other owners of Forrests and Chases and the owners of the Soil so as a Commoner is not any person within the meaning of the Statute And for the body of the Statute you ought to intend that the sentence is continued and not perfected untill the end of the Statute and the words Without licence c. prove That no persons were meant to be bounden by the statute but the Owners of the Forrests and Chases and not the Commoners Like the case in Dyer And although you will expound the words of the bodie of the Statute generally yet they shall be taken according to the intent of the preamble and therefore the Case of 21. H. 7. 1. of the Prior of Castleacre although it be not adjudged in the Book yet Judgment is entred upon the Roll which Case is Pasch 18. H. 7. Rot. 460. By which case it appeareth that although that a Statute be made which giveth Lands to the King yet by that statute the Annuity of a stranger shall not be extinguished And the Case which hath been put by Justice Foster upon the Statute of 18. Eliz. was the case of Boswel for the Parsonage of Bridgwater That although that one who hath a lease for years of the King which was void for misrecitall might by the said Statute hold it against the King yet the Patentee in Fee shall not be prejudiced by the said Statute So I conclude That the Commoner is not a person within this Statute of 22. E. 4 Secondly It is to be considered if a Wood in which any one hath Common be within the Statute and I hold it is not but onely severall Woods For as I have said the Wood which before the Statute might be enclosed for three years was onely a severall Wood and not such a Wood in which any one had common And the statute of 22. E. 4. doth extend onely to such Woods which might be felled and enclosed for three yeers and I conceive contrary to my Brother Warburton That the Deer of the Forrest shall well enough be said to be beasts and cattell And whereas by the common Law before this statute the enclosure was onely to be as I have said cum parvo fossato haia bassa by which the Deer were not excluded now by this statute I hold that they may make great hedges to exclude aswell the Deer as other beasts And I agree with Justice Foster that if he will take advantage of the Statute that hee ought to have pleaded that first hee felled and afterwards enclosed and è contrà upon the Statute of 35. H. 8. scil that hee ought first to divide and afterwards to fell c. And also I agree with him that in that point the Statute of 35. H. 8. being contrary doth repeal the Statute of 22. E. 4. if by that Statute the Commoner shall be excluded But I am of opinion with my Brother Warburton cleerly That hee is a Vendee of the Trees and so within the Statute for it is not neeessary that in the Grant there be the word Sell or that money by given nor that it be a contract for a time onely and not to have cantinuance as it is in our case But he who hath the Trees to him and his heirs shall be said to be a Vendee well enough As to the other matter which hath been moved Whether the Statute of 22. E. 4 be a generall law or not I hold cleerly that we are to take knowledg of it although it be not pleaded because it concerneth the King for it is made for the Kings Forrests and of all the Acts made between the King and his subjects wee ought to take knowledg for so was Stowel's Case And also it was adjudged that wee ought to take knowledg of the act concerning the Creation of the Prince because it concerneth the King And Cook in his argument said That if there had not been a speciall proviosin for the Commoner in the Statute of 35. H. 8. the Commoner had not been excluded by that Statute And afterwards Judgment was entred for the plaintiffe Pasch 8. Jacobi in the Common Pleas. 236 NOte That it was holden by three of the Justices viz. Walmâ—sley Warburton and Foster Cook and Daniel being abâ—ent for law cleerly That a Tenant at will cannot by any custome make a Lease for life by licence of the Lord and that there cannot be any such custome for a lease for life as there is for a lease for years Pasch 8. Jacobi In the Common Pleas. 237 BERRY's Case NOte That upon an Evidence given to a Jury in a Case betwixt Berry and New Colledg in Oxford it was ruled by Walmesley Warburton Foster Justices in an Action of Trespass If it appear upon the Evidence that the plaintiff hath nothing in the land but in common with a stranger yet the Jury ought to finde with the Plaintiff and if the Defendant will have advantage of the Tenancy in common in the plaintiff he ought to have pleaded it Nichols Serjeant was very earnest to the contrary and took a difference where the Plaintiffe and Defendant are Tenants in common and where the Plaintiff is tenant in common with a stranger But he was over-ruled the action was an action of Trespass Quare clausum fregit c. Cook and Daniel were absent Pasch 8. Jacobi in the Common Pleas. 238 IT was holden by Walmesley Warburton and Foster Justices That if a Rent be granted to one and his heirs for the life of another man and the grantee dieth that his heir shall not be an occupant of the Rent And Foster said that the reason was because he cannot plead a Que estate of a Rent
intend to entermarry with Alice S. by Indenture did covenant with J. D that he would marry the said Alice being then of the age of seventeen years and that after the marriage had betwixt them that they would levy a Fine of divers Lands which said Fine should bee unto the use of the said J. D. and his Heirs and accordingly after the entermarriage the said J. S. and Alice his Wife did levy a Fine unto the said J. D. and his Heirs without any other use implied or expressed but what was contained in the said Indenture before marriage and according to the said Fine the Conusee continued the possession of the said Lands for a long time viz. for thirty years Cook Chiefe Justice said That this continuance of possession was a strong proofe and could not otherwise be intended but that the Conusee came to the possession of the said Lands by the said Fine which was so levied to him and his heirs And he said That it was adjudged in this Court in the Case betwixt Claypoole and Whestone That in a Recovery the Covenant did not lead the use of the Recovery for that it was but an evidence that such was the intent of the parties And in this Case it was agreed by the whole Court and was so said to be resolved in Clogat and Blythes case 30. Eliz. That when no use is expressed or implyed by Indenture or other agreement that it shall be to the ancient use viz. to the use of the Conusor As if Husband and wife be seised of one moytie of the Land in the right of the wife and the Husband of the other moytie by himselfe and they joyne in a Fine generally the Conusee shall be seised to the former uses as it is agreed in Beckwiths case C. 2. part And so it was agreed That if the Husband doth declare the use and the wife doth not disagree or vary from it that the declaration of the Husband shall bind the wife And Cook said That it is not alwayes necessary that the wives name be set to the Indenture which doth declare an use And further Cook said That if a Fine be levied of Lands yet the uses may be declared by subsequent Indentures And it was said Obiter in this Case That if a man for valuable consideration doth purchase a Lease for years and hee nameth two of his servants as joynt-purchasers with him in the Deed and afterwards the Master would sell the Lands alone and the servants do interrupt the sale or will not joyne with him that he hath no remedy to compell them to do it but by a Bill of Chancery Trinit 8. Jacobi in the Common Pleas. 254 A Vicar was endowed in the time of King Henry the 3d. of divers Tithes and afterwards he libelled for those Tithes in the spirituall Court The Defendant alledged a Mâ—dus Decimandi and prayed a Prohibition and day was given to the party to shew cause why the same should not be granted and at the day the Deed of Endowment was produced and shewed in Court By which it did appear That the Vicar was endowed of Hay viz. of the tenth part of it and so of the remnant of the Tithes for which he libelled whereupon the Court refused to award a Prohibition Quaere Causam For as I conceive a Modus Decimandi may accrue after the Endowment Trinit 9. Jacobi in the Common Pleas. 255 Sir W. DETHICK and STOKE's Case STokes libelled against Sir William Dethick in the spirituall Court for calling of him Bald Priest Rascally Priest and for striking of him and for those offences he was fined by the spirituall Court an hundred pound and imprisoned And the opinion of the whole Court was That neither the Fine nor Imprisonment were justifiable because the Statute of Articuli Cleri is Non imponant poenam pecuniariam nisi propter redemptionem c. And Cook said They might onely excommunicate and thereupon a Writ de Excommunicatâ— capiendo might be awarded and that is their onely course and then the Party may have his Cautione admittenda And the Court said That if the spirituall Court would not enlarge the party upon sufficient Caution offered them that then the Sheriffe should deliver him Trinit 8. Jacobi in the Common Pleas. 256 IT was the opinion of the whole Court That if a man have a Judgment against two men upon a joynt Bond That he cannot have severall Executions viz. a Capias ad satisfaciendum against the one and an Elegit against the other for he ought to have but unicam satisfactionem although he sue them by severall Actions And if he sue forth severall Executions an Audita Querela will lye Mich. 9. Jacobi in the Common Pleas. 257 CARLE'S Case NOte it was adjudged in this Case That if a man say of another that he hath killed a man an Action upon the case will not lie for those words for he may do it as Executioner of the Law or se defâ—ndeâ—do So if one say of another That he is a Cutpurse an Action will not lie for that a Glover doth and a man may cut his own purse and the same Term it was holden in the Kings Bench That an Action will not lie for calling one Witch Mich. 9. Jacobi in the Common Pleas. 258 IT was holden by the whole Court That a Commoner cannot generally justifie the cutting and taking away of Bushes off from the Common but by a speciall prescription he may justifie the same So he may say That the Commoners have used time out of mind to dig the Land to let out the water that he may the better take his Common with his cattell and it was agreed That if the Lord of the Waste doth surcharge the Common that the Commoner cannot drive his cattell off the Common or distraine them damage feasance as he may the cattell of a stranger But the remedy against the Lord is either an Assize or an Action upon the Case Mich. 9. Jacobi in the Common Pleas. 259 IT was agreed by the whole Court That if a man deviseth unto his daughter an hundred pound when she shall marry or to his son when he shall be of full age and they die before the time appointed that their Executors shall not have the money otherwise if the devise were to them to be paid at their full ages and they die before that time and make Executors there the Executors may recover the Legacy in the spirituall Court Hill 9. Jacobi in the Kings Bench. 260 ROYLEY and DORMER's Case TWo Boyes did contend and fight near unto their houses and the one stroke the other so as he did bleed who went and complained to his father who having a rod with him came to the other boy and beat him upon which he died And the opinion of the whole Court was That it was not murder Mich. 9. Jacobi in the King 's Bench. 261 EDWARDS and DENTON's Case UPon a special Verdict the Case was
was adjudged against the Plaintiffe as in a Valore Maritagii if the Defendant will shew that hee tendered a mariage whereas it is not needfull for him so to do yet if the same be not true and issue be taken upon it Judgement shall be given against him wherefore hee concluded for the Plaintiffe The principall Case was adjourned Trinit 10 Jacobi in the Common Pleas. 270 GOODMAN and GORE 's Case GOodman brought an Assize against Gore and others for erecting of two houses at the West end of bis Wind-Mill per quod ventus impeditur c. And it was given in Evidence That the said houses were situate about eighty feet from the said Mill and that in height it did extend above the top of the Mill and in length it was twelve yards from the Mill and notwithstanding this neernesse the Court directed the Jury to find for the Defendant And in that Evidence it appeared by a Deed procured by the Plaintiff himself That his Wife was Joint-tenant with him and therefore it was holden by the Court That the Assize brought in his own name alone was not well brought And Cook Chief Justice also said That the Count was not good by reason of these words viz. Per quod ventus impeditur for he said That these were the words of an Action upon the Case and not of an Assize But the Clarks said That such was the usuall forme ad quod non fuit responsum and in that Case it was said obiter by Cook Chief Justice That if the Husband and Wife be Joint-tenants and the Husband sowes the Land and dieth and the Wife doth survive that she shall have the embleements Trinit 10. Jacobi in the Common Pleas. 271 HARDINGHAM's Case IN an Action of Trespass Quare clausum fregit the Defendant did justifie That he did enter and distrain for an Amercement in the Sheriffs Torne which was imposed upon the Plaintiffe for enchroaching upon the Kings High-way without shewing that the same was presented before the Justices of Peace at their Sessions as the Statute of 1. E. 4. cap. 2. requireth Haughton Serjeant for stay of Judgement in this Case said That the Statute is That the Justices of Peace shall award Process against the person who is so indicted before the Sheriffe which was not done in this Case And he said That the Statute did not extend to Amercements only in Trespasses Quare vi armis but to every other Trespass for the Statute speaks of Trespasses and other things which shall be extended to all Trespasses Cook Chief Justice said That the Statute of 1. E. 4. cap. 2. did not extend to Trespasses which were not contra pacem as the encroachment in this Case is for otherwise the Lord of a Leet could not distrain for an amercement without such presentmennt before Justices of the Peace And although the Statute speaks of Felony Trespass c. the same is to be meant of other things of the same nature which is proved by the clause in the Statute viz. That they shall be imprisoned which cannot be in the principall Case at Bar. Warburton and Winch Justices agreed in opinion with Cook Chief Justice Trinit 10. Iacobi in the Common Pleas. 272 FRAUNCES and POWELL's Case IT was moved for a Prohibition to the Spirituall Court for citing the Plaintiffe out of his Diocess upon the Statute of 23. H. 8. and by the Libel it appeared That Powell the Defendant had complained against the Plaintiffe in the Court of Arches for scandalous words spoken in the Parish of Saint Sepulchers London Cook Chief Justice held That a Prohibition would lie unlesse the Bishop of London had given liberty to the Arch-Bishop of Canterbury to entermeddle with matters within London for he said that in the Statute of 23. H. 8. there is a clause of exception in case where such liberty is given by the inferior Diocesan and therefore a day was given by the Court to procure a certificate of the opinion of the Civilians whether such authority given by the Inferiour Ordinary to the Arch-Bishop were Warranted by there Law or not for the Statute of 23. H. 8. is so and then if the authority be lawfully granted no prohibition will lye And Cook said that the Statute of 23. H. 8. was made but in affirmance of the common Law as appears by the books of 8. H. 6. and 2. H. 4. For there it is said that if one be excomenge in a forrain Dioces that the same is void coram non judice and he said that the principal cause of making of the said Statute was to maintain the Jurisdiction of Inferiour Diocesses But it was holden that if the Plaintiff had defamed the Defendant within the Peculiar of the Arch-Bishop that in such case he might be punished there although that he did inhabit within any remote place out of the Peculiar of the Arch-Bishop and in this Case it was said that the Arch-Bishop had in thirteen Parishes in London Peculiar Jurisdiction It was adjorned Trinit 10. Jacobi in the Court of Wards 273 COTTONS Case SIR John Tirrel Tenant in Capite made a Lease unto Carrel for 1000. years and further covenanted with Carrel and his Heirs that upon payment of five Shillings that he and his heirs would stand seised of the same Lands unto the use of Carrel and his Heirs And in the Deed there were all the ordinary clauses of a conveyance bona fide viz. That the Lessee should enjoy the Lands discharged of all Incumbrances and that he would make further assurance c. Carrel assigned this Lease to Cotton who died in possession his Heir within age and in two Offices the Jury would not find a Tenure because it was but a Lease for years And in a que plura the matter came in question in the Court of Wards And Cook Chief Justice of the Common Pleas and Tanfeild Chief Baron of the Exchequer were called for Assistants to the Court of Wards and they were of opinion that because it was found by the Offices that Cotton died in possession that the same was sufficient to entitle the King to Wardship of the Lands But before the Judges delivered there opinions the Lessee was compelled to prove the Sealing of the Lease by witnesses which was dated 12. years before For if they have no sufficient witnesses to prove the Sealing of the Lease without all doubt there was sufficient matter found to entitle the King viz. that the party died in possession which shall be intended of an estate in Fee simple till the contrarie be proved But the two Justices moved the Attorney That he would not trouble himself with the proof of a matter in fact For they said It was confessed on all sides that there was such a Lease and that the Assignee of it died in possession of the Land and therefore they said that they were cleer of opinion that the Heir of such a Lessee who died in possession should be
tail because the first words were indefinite and the later words were certain by which his intent did appeare to pass but an estate in tail He also cited 4. E. 4. 29. B. The words of an Obligation were Noverint universi per praesentes me I. S. teneri c. W. B. in ten pound solvendum eidem I. And it was holden by the whole Court that the same did not make the Bond to be void because it appeared by the promises of the Bond to whom the mony was in Law to be paid and the intent so appearing the Plaintiff might declare of a solvendum to himself and the word I should be surplusage And 22. E. 4. 9. A. B. The Abbot of Selbyes case Where the Abbot of Selby did grant annualem pensionem to B. ad rogatum I. E. illam scilicet quam I. E. habuit ad terminum vitae suae solvendum quousque sibi c. de beneficio provisum fuerit and it was holden by the whole Court in a Writ of annuity brought that sibi did referre to B. the grantee and not to I. E. And Cook Chief Justice said that the original Contract doth leade the measure in this Case and to that purpose he cited Kiddwellies case in the Commentaries where a Lease was made rendring Rent at Mich. at D. and if it were behind by a month after demand that the Lessor might reenter the demand must be at the first place which is in that case alledged to be certain viz. at D. The case was adjorned Trinit 10. Jacobi in the Common Pleas. 285 Sir Henry Lea and Henry Leas Case SIR Henry Lea was committed to the Fleet for the disobeying of a Decree made in the Court of Requests and having Suits depending in the Court of Common Pleas he prayed a Writ of habâ—as Corpus which was granted and upon the return of the Writ the cause of his Commitment appeared to be for a contempt for not performing of the said Decree and no other cause appeared in the return and the Court were of opinion that they could not deliver him because that no cause appeared in the return to warrant their delivery of him And the Court said that if the return be false yet they cannot deliver the party But the party may have his Action of false Imprisonment if the Imprisonment be not Lawfull But then it was shewed by Mountague Serjeant to the Court that the Decree was made in the Court of Requests upon a Bill containing this matter viz. That Henry Lea pretending Title unto Lands which Sir Henry Lea held by descent from his Unkle Sir Henry Lea shewed his Title to the Kings Majestie and thereupon the King upon the Petition of Henry Lea sends for Sir Henry Lea and had speech with him that he would give unto the said Henry Lea some recompence for his Title which he pretended to have to the said Lands And that thereupon the said Sir Henry Lea at the instance of the Kings Majestie did promise the King that if the said Henry Lea would not molest him for any of the said Lands which he had by descent from his said Unkle that then he the said Sir Henry Lea would give unto the said Henry Lea two hundred pound per Annum And for not performance of this promise made to the King Henry Lea Exhibited his Bill in the Court of Requests upon which the said Decree was grounded The said Sir Henry Lea answered that he did not know of any such promise he made to the Kings Majestie and pleaded to the Jurisdiction of the Court But upon a Certificate made by the Kings Majestie that he made such a promise unto him the Court of Requests made the said Decree which Certificate was mentioned in the body of the said Decree And Mountegue prayed that because it appeared that the said Henry Lea had remedy by way of Action upon the case at the common Law upon the said promise That this Court would grant a Prohibition in this case unto the Court of Requests and deliver the party from his Imprisonment But the Court said that they would advise of the Case because they never had heard of the like case But Cook Chief Justice advised Sir Henry Lea to agree the matter betwixt Him and his Kinsman Henry Lea For he said that he had learned a Rule in his youth which was this viz. Cum pare luctare dubium cum Principe stultum est Cum puero poena cum Muliere pudor Trinit 10. Jacobi in the Common Pleas. 286 GARVEN and PYM's Case GArven libelled against Pym for a Seat in the Church before the Bishop of Exeter in the spiritual Court there which by Appeal was removed into the Court of Arches And the Defendant did surmise in the Court of Common Pleas That he and his Ancestors have used time out of mind c. to have an Isle with a seat in the said Church for himself and his family and thereupon prayed a Prohibition But because it did appear upon Examination of the party himself That the Parish have alwayes used to repair the said Isle and seat the Court would not grant a Prohibition in this case for that proves that his Ancestors were not the Founders of the said Isle and Seat Also another man hath alwayes used to sit with him in the same seat which also proves that it doth not belong to him alone Cook chief Justice said That if a Gentleman with the assent of the Ordinary hath built an Isle juxta Ecclesiam for to set convenient Seats for him and his family and hath alwayes repaired the same at his own costs and charges In such case if the Ordinary place another man with the Founder without his consent in the same Seat that he may have his Action upon the Case against the Ordinary And if he be impleaded in the spirituall Court for such Seat that a Prohibition will lie And he said That the Heydons in Norfolk have built such an Isle next to the Church and placed convenient Seats there for them and their family But he said That if a man with the assent of the Ordinary set up a Seat in navi Ecclesiae for himselfe and another man doth pull up the same or defaceth it Trespas vi armis will not lie against him because the Freehold is in the Parson and he hath no remedy for the same but to sue the party in the Ecclesiastical Court And 9. E. 4. 14. the Dame Wiches Case was vouched where she brought an Action of Trespasse against the Parson for taking away her Husbands Coat-armour which was fixed to the Church at his Funerall and it was adjudged that the Action would lie and so will an Action in such case brought by the heir And Cook said That the Ordinary hath the onely disposing of Seats in the Body of the Church with which agrees the opinion of Hassey in 8. H. 7. And if the Ordinary long time past hath granted to a
the case which implyed their opinions to be for the Universitie And 21. H. 7. was vouched That the Patronage was only matter of favour and was not a thing valuable And in this case Cook chief Justice said That Apertus haereticus melius est quam fictus Catholicus Mich. 11. Jacobi in the Common Pleas. 310 BOND and GREEN's Case AN Action of Debt was brought against an Administrator the Defendant shewed how that there were divers Judgments had against him in 〈◊〉 Aâ—d â—â—so that there was another Debt due by the Testator which was assigned over unto the Kings Majesty and so pleaded That he had fully Administred Barker Serjeant took Exception to the pleading because it was not therein shewed that the King did assent to the Assignment and also because it was not shewed that the Assignment was enrolled The Court said nothing to the Exceptions But whereas he Defendant as Administrator did alledge a Retayner in his own hands for a debt due to himselfe The opinion of the whole Court was that the same was good and that an Administrator might retayne to satisfie a debt due to himselfe But it was agreed by the Court That an Excecutor of his own wrong should not Retayne to satisfie his own debt See to this purpose C. 5. part Coulters Case Mich. 11. Jacobi in the Common Pleas. 311 STROWBRIDG and ARCHERS Case IN An Action of debt upon a Bond the Defendant was Outlawed And the Writ of Exigent was viz. Ita quod habeas corpus ejus hîc c. whereas it ought to be coram Justiciariis nostris apud Westminster And for that defect the utlagary was reversed and it was said that it was as much as if no Exigent had been awarded at all And upon the Reversall of the utlagary a Supersedeas was awarded and the party restored to his goods which were taken in Execution upon the Capias utlagatum It was also resolved in this Case That if the Sheriffe upon a Writ of Execution served doth deliver the mony or goods which are taken in Execution to the Plaintiffs Atturney it is as well as if he had delivered the same to the Plaintiff himself for the Receipt by his Atturney is in Law his own Receipt But if the Sheriff taketh goods in Execution if he keep them and do not deliver them to the paâ—â— at whose suit they are taken in Execution the party may have a new Execution as it was in the principal Case because the other was not an Execution with Satisfaction Mich. 11. Jacobi in the Common Pleas. 312 CHAVVNER and BOVVES Case BOwes sold three Licences to sell Wine unto Chawner who Covenanted to give him ten pounds for them and Bowes Covenanted that the other should enjoy the Licences It was moved in this Case whether the one might have an Action of Covenant against the other in such Case And the opinion of Warburton and Nichols Justices was That if a Man Covenant to pay ten pound at a day certain That an action of Debt lyeth for the money and not an action of Covenant Barker Serjeant said he might have the one or the other But in the principall Case the said Justices delivered no opinion 313 Note That this Day Cooke Chief Justice of the Common Pleas was removed to the Kings Bench and made Lord Chief Justice of England And Sir Henry Hobart who was the Kings Aturney generall was the day following made Lord Chief Justice of the Court of Common Pleas. Sir Francis Bakon Knight who before was the Kings Solicitor was made Atturney Generall And Mr Henry Yelverton of Grays-Inn was made the Kings Solicitor and this was in October Term. Mich. 11 Jacobi 1613. Mich. 11. Jacobi In the Common Pleas. 314 THis Case was put by Mountague the Kings Serjeant unto the Lord Chief Justice Hobart when he took his place of Lord Chief Justice in the Common Pleas viz. Tenant in tail the Remainder in taile the Remainder in Fee Tenant in tail is attainted of Treason Offence is found The King by his Letters Patents granteth the lands to A who bargaineth and selleth the land by Deed unto B. B. suffers a common Recovery in which the Tenant in tail is vouched and afterwards thâ— Deed is enrolled And the question was Whether it was a good Bar of the Remainder And the Lord Chief Justice Hobart was of opinion That it was no barre of the Remainder because before enrollment nothing passed but only by way of conclusion And the Bargainee was no Lawfull Tenant to the Precipe Mich. 11. Jacobi in the Common Pleas. 315 WHEELER's Case IT was moved for a Prohibition upon the Statute of 5. E. 6. for working upon Holy days and the Case was That a man was presented in the spirituall Court for working viz. carriage of Hay upon the feast day of Saint John the Baptist when the Minister preached and read divine service and it was holden by the whole Court of Common Pleas That the same was out of the Statute by the words of the Act it self because it was for necessity And the Book of 19 H. 6. was vouched That the Church hath authority to appoint Holy days and therefore if such days be broken in not keeping of them Holy that the Church may punish the breakers therof But yet the Court said That this day viz. the Feast day of Sr John the Baptist was a Holy day by Act of Parliament and therefore it doth belong unto the Judges of the Law whether the same be broken by doing of such work upon that day or not And a Prohibition was awarded Mich. 11 Jacobi in the Common Pleas. 316 REARSBY and CUFFER's Case IT was moved for a Prohibition to the Court of Requests because that a man sued there by English Bill for money which he had layd out for an Enfant within age for his Meat drink necessary apparel and set forth by his Bill that the Enfant being within age did promise him to pay the same And a Prohibition was awarded because as it was said he might have an action of Debt at the common Law upon the contract for the same because they were things for his necessary livelihood and maintenance And it was agreed by the Court That if an Infant be bounden in an Obligation for things necessary within age the same is not good but voidable Quaere for a difference is commonly taken When the Assumpsit is made within age and when he comes to full age For if he make a promise when he cometh of full age or enters into an Obligation for necessaries which he had when he was within age the Law is now taken to be that the same shall binde him But see 44. Eliz. Randals Case adjudged That an Obligation with a penaltie for money borrowed within age is absolutely void Mich. 11. Jacobi in the Common Pleas. 317 SMITH's Case SMith one of the Officers of the Court of Admiralty was committed by the Court of Common Pleas to the prison of
the Fleet because he had made Return of a Writ contrary to what he had said in the same Court the day before and 11. H. 6. was vouched by Warburton Justice That if the Sheriff do return that one is languidus in prisona whereas in truth he is not languidus the Sheriff shall be sued for his false Return which was agreed by the whole Court Quod nota Mich. 11. Jacobi in the Common Pleas. 318 WArburton Justice asked the Pronothories this question If in Trespass the plaintiff might discontinue his action within the yeer To which the Pronothories answered That if it be before any plea be pleaded that he might But the Justices were of a contrary opinion that he could not because then costs which are given by the Statute should be lost Mich. 11. Jacobi In the Common Pleas. 319 LAISTON's Case IN Trespass for a Wâ—y the Defendant pleaded a plea in bar which was insufficient and afterwards the plaintiff was Non-suit yet it was resolved by the Court that the defendant should have his costs against the plaintiff But if a default be in the originall Writ and afterwards the plaintiff is Non-suit there the defendant shall not have costs because that when the Original is abated it is as if no suit had been And so was the opinion of the whole Court Mich. 11. Iacobi in the Common Pleas. 320 HILL and GRUBHAM's Case THe Case was this A Lease was made unto Grubham by a deed paroll Habendum to him his wife and his daughter successivè sicut scribuntur et nominantur in ordine Afterwards Grubham dyed and then his wife dyed And if it were a good estate in Remainder to his daughter was the Question Harris Serjeant The Remainder is void and not good by way of Remainder for the incertainty C. 1. part in Corbets case In all Contracts and bargains there ought to bee certainty And therefore 22. H. 6. is That if a Feoffment be made to two et haeredibus it is void although it be with warranty to them and their heirs Vide 9. H. 6 35. Where renunâ—iavit totam communiam doth not amount unto a Release because it is not shewed to whom the Release is and so in 29. Eliz. in the Kings Bench in Windsmere Hulbards case Where an Indenture was to one Habendum to him and to his wife and to a third person Successive it was holden that it was void by way of Remainder to any of them And there it was Resolved 1. That they did not take presently 2. That they could not take by way of Remainder And 3. that They could not take as Occupants because that the intent of the Lessor was that they should take but as one estate But the Court was of opinion against Harris And Resolved That the daughter had a good estate in Remainder and that the same did not differ from the Case in Dyer Where a Lease was made by Indenture to one Habendum to him to another successivè sicut nominantur in Charta for that those words Sicut nominantur in Charta maketh the estate to be certain enough And so they said in this Case Sicut scribuntur et nominantur in Ordine is certain enough and shall be taken to be Sicut scribuntur et nominantur in eadem charta But they agreed according to the Case in Brooks Cases That a Lease to three Habendum 〈…〉 Mich. 11. Jacobi in the Common-Pleas 321. TRAHERNS Case AN Assize of Nusans was brought against the Defendant because that Levavit quandam domum ad nocumentum c. And the Plaintiff shewed how that he had a Windmil and that the Defendant had built the said house so as it hindred his Mill And the Jury found that the Defendant levavit domum and that but two feet of it did hinder the Plaintiffs Mill and is ad nocumentum And how Judgment should be given was the question And the Court was of opinion That Judgment should be that but part of the house should be abated viz. That which was found to be ad nocumentum And it was said by some That the Assise is such a Writ which extends to the whole house and therefore that the whole house should be abated according to the Writ But a difference was taken betwixt the words Erexit and Levavit For Erexit is but when parcel of a house is set up ad nocumentum but Levavit is when an entire house is levied from the ground And it was said by Hobart Chief Justice That if the Defendant had not levied the house so high by two yards it had been no Nusans for the Jury find that the two yards only are ad nocumentum And therefore he conceived that the Writ was answered well enough and that but part of the house should be abated For the Writ is Quod levavit quandam domum c. And the Verdict is Quod levavit domum But that but two yards of it is ad nocumentum And therefore he said the Writ is answered well enough and that the Judgment should be given That that only should be abated which was ad nocumentum c. Quaere for the Case was not resolved And vid. Batten Sympsons Case C. par 9. to this purpose Mich. 11. Jacobi in the Common-Pleas 322. BAGNALL and POTS Case IT was resolved by the Court in this Case That when an Issue is joyned upon Non concessit that the Issue shall be tryed where the Land is But if a Lease be in question and Non concessit be pleaded to it it shall be tryed where the Lease was made 2. It was resolved That if Copy-hold land be given to superstitious uses and the same cometh unto the King by the Statute That the Copyhold is destroyed and the Uses shall be accompted void But it was resolved That in such Case by the Statute which giveth this Land so given to superstitious uses to the King that the King hath not thereby gained the Freehold of the Copyhold but that the same remaineth in the Lord of the Mannor Mich. 11. Jacobi in the Common-Pleas 324. JUCKS Sir CHARLS CAVENDISH's Case A Parson sued for the substraction of Predial Tythes upon the Statute of 2 E. 6. in the Spiritual Court The Defendant made his suggestion That for such a Farm upon which the Tythes did arise there was this custom That when the Tythes of the Lands were set forth that the Owners of the said Lands had used time out of mind to take back thirty sheafs of the Tythe-corn and shewed that he was the Owner of the said Farm and that according to the said custom after the Tythes were set forth that he did take back thirty sheafs thereof and thereupon prayed a Prohibition And in this Case it was said by the Court That it ought to be averred that the Farm was a great Farm for otherwise it should be the impoverishing of the Church and would take away a great part of the profit of the Parson
resolved That although the Award was void as to that part yet for the residue it stood good and therefore for not performance of the same the Bond is forfeited As if J. be bounden to perform the Award of J. S. for White-Acre and that he award that I enfeoffe another of White-Acre and that he give unto me Ten pounds If I tender unto him a Feoffment of White-Acre and he refuseth it and will not give to me the 10l. I shall have an Action of Debt upon the Bond as it is adjudged in Osborn's Case C. 10. par 131. The same Law If J. S. and J. N. submit themselves unto the Award of J. D. who awardeth that J. S. shall surcease all suits and procure J. N. to be bounden with a stranger and make a Feoffment of his Mannor of D. which is a thing out of the Submission In that case there are three things enforcing the Arbitrement the first is only good the second is against the Law and the other is out of the Submission yet being in part good it ought to be performed in that otherwise the Bond is forfeited But this Case was put If J. be bounden to stand to the Award of A. ita quod it be made de super premissis and afterwards A. maketh an Award but of part of the premises there it is void in all because it is not according to the authority given unto him And afterwards in the principal Case Judgment was given for the Plaintiffe Pasch 12 Jacobi in the Kings Bench. 353. DOCKWARY and BEAL's Case IN an Essex Jury The opinion of the Court was That Wood will passe by the name of Land if there be no other Land whereby the words may be otherwise supplied Also it was agreed That the Tenant for Years might fell Underwoods of 25 years growth if the same hath used to be felled Pasch 12 Jacobi in the Kings Bench. 354. WROTESIEY and CANDISH's Case ELizabeth Wrotesley did recover Dower 6 Jacobi in the Common-Pleas in which Writ she demanded tertiam partem Manerii de D. eum pertinaciis Nec non tertiam partem quarundam terrarum jacent in Hovelan And upon Ne unque seise que Dower the parties were at issue and the Venire facias awarded de Hovelan And it was found for the Plaintiffe and Judgment was given for her And Candish the Defendant brought a Writ of Error in the Kings Bench and assigned for Error That it was a Mis-trial For that the Venire facias ought to have been de Manerio and not of Hovelan 6 H. 7. 3. 11 H. 7. 20. C. 6 par â— 19 H. 6. 19. 19 E. 4. 17. Yet the Councel of the Defendant moved That the Trial was good for the Land in Hovelan And it being found that the Husband was seised of the Mannor of D. that now the Trial was good for the whole Pasch 12 Jacobi in the Kings Bench. 355. COWLEY and LEGAT's Case COwley brought an Audita quaerela against Legat and the Case was this Cowley and Bates bound themselves in a Bond of 200l. jointly and severally to Legat And afterwards 6 Jacobi Legat brought an action of Debt upon the Bond against Bates and had Judgment and 7 Jacobi the said Legat brought Debt against Cowley in the Kings Bench upon the same Bond and obtained Judgment and afterwards he sued forth Execution upon the first Judgment by Elegit and had the Land of Bates who was Tenant thereof only for another mans life in Execution and afterwards he took forth a Capias ad satisfaciendum against Cowley upon the Judgment in the Kings Bench And thereupon Cowley brought an Audita quaerela containing in it all the whole matter And the opinion of all the Justices was That the Audita quaerela was well brought And first it was holden That when a man may plead the matter in bar he shall not have an Audita quaerela upon the matter because it was his lachess that he did not take advantage of it by way of plea. But secondly in this Case it was said That he could not have pleaded the special matter and therefore as to that point the Audita quaerela was well brought But the onely doubt in the Case was Whether Legat the Defendant might have a new Execution by Capias ad satisfaciendum after that he had Execution against one of the Obligers by Elegit and the doubt was because the Judgments upon which he grounded his Executions were given at several times and in several Courts and against several persons For it was agreed by the whole Court That a Capias doth not lie after Execution sued by Elegit against the same person but after a Capias an Elegit is grantable And the reason of the difference is because upon the prayer to have an Elegit it is entred in the Roll Elegit sibi executionem per medietatem terrae so as he is estopped by the Record to have another Execution but upon a Capias nothing at all is entred upon Record Yet Cook Chief Justice said That it is the common practice of a good Attorney to deferre the entry in the Roll of Execution upon an Elegit until the Sheriffe hath retorned it served And in such case it was agreed That if the Sheriffe retorn upon the Elegit That the party hath not Lands c. then the party may take forth a Capias Also the Elegit is in it self a satisfactory Execution and by the Common-Law a man shall have but one Execution with satisfaction And therefore at the Common-Law if after Execution the Land had been evicted the party had no remedy And Cook said If part of the Land be evicted the party shall not have remedy upon the Statute of 32 H. 8. cap. 5. to which Crook Justice agreed And the Court held it to be no difference although that the Judgments were given in several Courts against persons several and at several times and where it is but one Judgment against one person Vide the Case 43 E. 3. 27. where in Debt the Defendant said That the Plaintiffe had another Action for the same Debt depending in the Exchequer by Bill Judgment c. And by Mowbray and Finchden cleerly it is a good plea although it be in another Court And Dodderidge Justice said That in the first case the said Legat might sue the said Cowley and Bates severally and after Judgment he might choose his Execution against which of them he pleased But he could not have Execution by Elegit against them both And therefore he said That although there be an Eviction of the Land or that the Judgment be reversed by Error after that he hath Execution against one by Elegit yet Legat could not have Execution against the other for by the first Execution he had determined his Election and he could not sue the other which Cook agreed Mich. 12 Iacobi in the Kings Bench. 356. FOX and MEDCALF's Case IN a Writ of Accompt brought in
â—uaere whether it be a good Plea because it doth amount to the general issue of Not guilty Curia avisare vult And v. Tompsons Case 4 Jac. in the Kings Bench It was adjudged that it was no good Plea Hill 6 Jacobi in the Common Pleas. 370. PAGINTON and HUET'S Case IN an Ejectione Firme the Case was this That the Custome of a Manor in Worcestershire was That if any Copyholder do commit Felony and the same be presented by twelve Homagers That the Tenant should forfeit his â—opyhold And it was presented in the Court of the Mannor by the Homage That Hâ—â—t the Defendant had committed Felony But afterwards at the Asâ—ises he was acquitted And afterwards the Lord seised the Copyhold And it was adjudged by the Court that it was no good Custom because in Judgment of Law before Attaindor it is not Felony The second point was Whether the special Verdict agreeing with the Presentment of the Homage That the party had committed Felony did entitle the Lord to the Copyhold notwithstanding his Acquital Quaere For it was not resolved Mich. 7 Iacobi in the Common Pleas. 371. THe Custom of a Mannor was That the Heirs which claimed Copy-hold by Discent ought to come at the first second or third Court upon Proclamations made and take up their Estates or else that they should forfeit them And a Tenant of the Mannor having Issue inheritable beyond the Seas dyed The Proclamations passed and the Issue did not return in twenty years But at his coming over he required the Lord to admit him to the Copyhold and proffered to pay the Lord his Fine And the Lord who had seised the Copyhold for a Forfeiture refused to admit him And it was adjudged by the whole Court That it was no Forfeiture because that the Heir was beyond the Seas at the time of the Proclamations and also because the Lord was at no prejudice because he received the profits of the Lands in the mean time Mich. 14 Iacobi in the Kings Bench. 372. A Copyholder in Fee did surrender his Copyhold unto the use of another and his heirs which surrender was into the hands of two Tenants according to the custome of the Mannor to be presented at the next Court. And no Court was holden for the Mannor by the space of thirty years within which time the Surrenderor Surrenderee and the two Tenants all dyed The heir of the Surrenderor entred and made a Lease for years of the Copyhold according to the Custome of the Mannor And it was adjudged per Curiaâ—â— That the Lease was good Mich. 14 Iacobi in the Common-Pleas 373. FROSWEL and WEICHES Case IT was adjudged That where a Copyholder doth surrender into the hands of Copy-Tenants That before Presentment the Heir of the Surrenderor may take the profits of the Lands against the Surrenderee For no person can have a Copyhold but by admittance of the Lord. As if a man maketh Livery within the view although it cannot be countermanded yet the Feoffee takes nothing before his entry But it was agreed That if the Lord doth take knowledge of the Surrender and doth accept of the customary Rent as Rent due from the Tenant being admitted that the same shall amount unto an Admittance but otherwise if he accept of it as a duty generally Mich. 5 Iacobi in the Exchequer 374. IT was adjudged in the Exchequer That where the King was Lord of a Mannor and a Copyholder within the said Mannor made a Lease for three lives and made Livery and afterwards the Survivor of the three continued in possession forty years And in that case because that no Livery did appear to be made upon the Endorsment of the Deed although in truth there was Livery made that the same was no forfeiture of which the King should take any advantage And in that case it was cited to be adjudged in Londons case That if a Copy-Tenant doth bargain and sell his Copy-Tenement by Deed indented and enrolled that the same is no forfeiture of the Copyhold of which the Lord can take any advantage And so was it holden in this Case Pasch 14 Iacobi in the Kings Bench 375. FRANKLIN'S Case LAnds were given unto one and to the heirs of his body Habendum unto the Donee unto the use of him his heirs and assignes for ever In this â—ase two points were resolved 1. That the Limitation in the Habendum did not increase or alter the Estate contained in the premisses of the Deed. 2. That Tenant in Tail might stand seised to an use expressed but such use cannot be averred Hill 13 Iacobi in the Chancery 376 WINSCOMB and DUNCHES Case VVInscomb having issue two sons conveyed a Mannor unto his eldest son and to the daughter of Dunch for life for the joynture of the wife the Remainder to the 〈…〉 The son having no issue his Father-in-law Dunch procured him by Deed indented to bargain and sell to him the Manner The Bargâ—ynor being sick who died before enrolment of the Deed within the 〈…〉 Deed â—ot being acknowledged And 〈◊〉 the 〈◊〉 coming to be enrolled the Clark who enrolled the same did proâ—â—â—e Waâ—â—â—nt from the Master of the Rolls who under-â—â—â— upon the Deâ—◠〈◊〉 the Deed be enrolled upon Affidavit made of the delivery of the Deed by one of the Witnesses to the same And afterwards the Deed was eâ—â—â—â—d within the six moneths And the opinion of the Court wasâ— That 〈◊〉 Conveyance was a good Conveyance in Law And therefore the younger brother exhibited his Bill in Chanchery pretending the Conveyance to be made by practice without any Consideration Mich. 15 Iacobi in the Kings Bench. 377 LUDLOW and STACIâ—S Case A Man bargained and sold Land by Deed indented bearing date 11 Junii 1 Jacobi Afterwards 12 Junii The same year Common was granted â—nto the Bargainee for all manner of Cattell commonable upon the Land 15 Junii theâ— Deed of Bargain and Sale was enrolled And it was adjudged a good grant of the Common And the Enrolment shall have Relation as to that although for collaterall things it shall not have relation Hill 15 Iacobi in the Kings Bench. 378. NOte that it was held by Dodderidge Justice and Mountagu Chief Justice against the opinion of Haughton Justice That if Lessee for years covenanteth to repair and sustein the houses in as good plight as they were at the time of the Lease made and afterwards the Lessee assigneth over his Term and the Lessor his Reversion That the Assignee of the Reversion shall maintain an Action of Covenant for the breach of the Covenants against the first Lessee Hill 15 Jacobi in the Common-Pleas 379. SMITH and STAFFORD'S Case A Man promised a Woman That if she would marry with him that if he dyed and she did survive him that he would leave unto her 100â— They entermarried and then the husband dyed not performing his promise The wife sued the Executor of her husband upon the said promise And whether the
and where not For in the principal Case notwithstanding that the Jury find the Assumpsit yet the same doth not reach to the Request and without that the Assumpsit is void Dodderidge Justice cited 5 E. 4. That if the Declaration be vitious in a point material and issue is taken upon another point there the finding of it by the Jury doth not make the Declaration to be good And so in the principal Case Judgment was given for the Defendant In this Case it was agreed That if a man bring an Action of Trover and Conversion and not alleadge a place where the Conversion was Although the issue for the Trover be found for the Plaintiff yet he shall not have Judgment Hill 16 Iacobi in the Kings Bench. 388. GODFREY and DIXON'S Case COrnelius Godfrey brought an Action of Debt upon a Lease against Dixon and declared That Cornelius Godfrey his Father being an Alien had issue Daniel Godfrey born in Flanders the Father is made a Denizen and hath issue the Plaintiffe his second son born in England The Father dieth Daniel is Naturalized by Act of Parliament and made the Lease to Dixon for years rendring Rent and dyed without issue And the Plaintiffe his brother brought an Action of Debt for the Arrearages as heire and upon that it was demurred in Law And George Crook in his Argument said That Inheritance is by the Common-Law or by Act of Parliament And that three persons cannot have heirs in travnsersali linea but in recta linea viz. 1. A Bastard 2. A person Attainted 3. An Alien see for that 39 E. 39. Plow Dom. 445. 17. E. 4. 1. 22 H. 6. 38. 3 E. 1. sitz t' Cousinage 5. Dr. Student And he said That Denization by the Kings Charter doth not make the heir inheritable 36 H. 8. Br. to Denizen and C. 7. part 77. And he said That he who inheriteth ought to be 1. Next of blood 2. Of the whole blood and 3. He ought to derive his Pedigree and discent from the stock and root Bracton lib. 2. fol. 51. And he said That if a man doth covenant to stand seised to the use of his brother being an Alien that the same is not good and the use will not rise But that was denyed by the Court. And he said That an Alien should not have an Appeal of the death of his brother And he took a difference betwixt an Alien and a person Attainted and said that the one was of corrupt blood the other of no blood and cited 9 E. 4. 7. 36 Eliz. Hobby's Case Dodderidge upon the argument of this Case said That if a man claim as Cousin and Heir he must shew how he is Cousin and Heir but not when he claims as Brother or Son and Heir The Case was adjourned Hill 16 Iacobi in the Kings Bench 389 GRAY'S Case AN Action of Debt was brought upon a Bond with Condition to stand to an Arbitrement and also that he should not begin proceed in or prosecute any suit against the Obliger before such a Feast The Obliger did continue a Suit formerly brought George Crook said That the Bond was forfeited because it is the act of the Obliger to continue or discontinue a suit and profit accrues to him therefore it shall be adjudged his act But it is otherwise of an Essoin because that that may be cast by a stranger And he cited the books of 36 H. 6. 2. 5 H. 7. 22 14 E. 41. 18 H. 6. 9. And he held That it was a good Award to continue or discontinue a suit because it is in the power of the party to do it or not Hill 16 Jacobi in the Kings Bench. 390 SLYE'S Case IN a Scire facias to have Execution the Sheriffe retorned That by vertue of a Writ of Fieri facias he took the goods in Execution ad valentiam of 11l. which remained in his custody for want of buyers and that they were rescued out of his possession Mountagu Chief Justice and Dodderidge Justice The Plaintiffe shall have an Execution against the Sheriff relyed upon the book of 9 E. 4. 50. 16 E. 4. Faulconbridge Case 7 Eliz. Dyer 241. 5 E. 3. t' Execution C. 5. par Pettifers Case And Dodderidge said That by this Retorn he had concluded himself and was liable to the value of 11l. And he took this difference where the Sheriffe by vertue of the Writ Venditioni exponas sels the thing under the value there he shall be discharged but otherwise where he sels the goods ex officio Crook and Haughton Justices The Plaintiffe shall not have a Scire facias against the Sheriffe but where he hath the money in his purse And they said That the Plaintiffe must have a Distringas directed to the new Sheriffe or a Venditioni exponas Note the Court was divided in opinion But the Law seems to be with Crook and Haughton and the books before cited prove their difference and warrant it Hill 16 Iacobi in the Kings Bench. 391 Sir JOHN BRET and CUMBERLAND'S Case IN an Action of Covenant brought by Sir John Bret against Cumberland Executor of I. C. the Case was this Q. Eliz. by her Letters Patents did demise a Mill unto the Testator for 30 years reserving Rent and these words were in the Letters-Patents viz. That the Lessee his Executors and Assignes should repair the Mill during the Term. The Lessee assigned over all his interest unto Fish who attorned Tenant and paid the Rent to the Queen and afterwards the Queen granted the Reversion to Sir John Bret and Margaret his wife The Assignee is accepted Tenant the Mill came to decay for want of Reparations and Sir John Bret brought an Action of Covenant against the Executor of the first Lessee And it was adjudged for the Plaintiffe And Dodderidge Justice gave the reasons of the Judgment 1. Because that by the Statute of 32 H. 8. all the benefit which the Queen had was transferred to the Grantee of the Reversion 2. It might be parcel of the Consideration to have the Covenant against the Lessee For a Mill is a thing which without continual Reparations will be ruinous and perish and decay And he said That the Assignee had his election to bring his Action against the Lessee or against the Assignee because it was a Covenant which did run with the Land Mountagu Chief Justice said That the reason of the three Cases put in Walkers Case is in respect of the Interest And took a difference where there is privity of Contract and where not It was adjourned Hill 16 Jacobi in the Kings Bench. 392. WEBB and TUCK'S Case IN an Action of False Imprisonment it was agreed That a Fine may be assessed for Vert and Venison And it was said in this Case by the Justices That a Regarder is an Officer of whom the Law takes knowledge and so are Justices in Eyre 2. It was agreed That such things of which the Law takes notice
it is not known whether he be guilty or not and in Cuddingtons Case it was a general Pardon and that was the cause that the Action did lie for that it is not known whether he committed the Felony or not But they conceived that if it had been a particular Pardon that then in that case the Action would not have been maintainable For the procuring of a special Pardon doth presuppose and it is a strong presumption that the party is guilty of the offence Note it did not appear in the Case of Fines the principal Case whether the Pardon by which Dr. Spicer was pardoned were a general Pardon or whether it were a particular and special Pardon Pasch 21 Iacobi in the Kings Bench. 415. DAVER's Case IN Davers Case who was arraigned for the death of William Dutton Ley Chief Justice delivered it for Law That if two men voluntarily fight together and the one killeth the other if it be upon a sudden quarrel that the same is but Man-slaughter And if two men fight together and the one flieth as far as he can and he which flieth killeth him who doth pursue him the same is Se defendendo Also if one man assaulteth another upon the High-way and he who is assaulted killeth the other he shall forfeit neither life nor lands nor goods if he that killed the other fled so far as he could Quod nota Pasch 21 Jacobi â—n the Court of Wards 416. Sir EDWARD COKE's Case THis Case being of great consequence and concernment The Master of the Court of Wards was assisted by four of the Judges in the hearing and debating of it and after many Arguments at the Barr the said four Judges argued the same in Court viz. Dodderidge one of the Justices of the Kings Bench Tanfield Lord chief Baron of the Exchequer Hobart Lord Chief Justice of the Court of Common Pleas and Ley Lord Chief Justice of his Majesties Court of Kings Bench The Case in effect was this Queen Elizabeth by her Letters Patents did grant to Sir Christopher Hatton the Office of Remembrancer and Collector of the first Fruits for his life Habendum to him after the death or surrender of one Godfrey who held the said Office then in possession Sir Christopher Hatton being thus estated in the said Office in Reversion and being seised in Fee-simple of diverse Mannors Lands and Tenements did Covenant to stand seised of his said lands c. unto the use of himself for life and afterwards to the use of J. Hatton his son in tail and so to his other sons intail with the Remainder to the right heirs of J. Hatton in Fee with Proviso of Revocation at his pleasure during his life Godfrey the Officer in possession died and Sir Christopher Hatton became Officer and was possessed of the Office and afterwards he became indebted to the Queen by reason of his said Office And the Question in this great Case was Whether the Mannors and Lands which were so conveyed and setled by Sir Christopher Hatton might be extended for the said Debt due to the Queen by reason of the Proviso and Revocation in the said Conveyance of Assurance of the said Mannors and Lands the debt due to the Queen was assign'd over and the Lands extended and the Extent came to Sir Edward Coke and the heir of John Hatton sued in the Court of Wards to make void the Extent And it was agreed by the said four Justices and so it was afterwards decreed by Cranfield Master of the Court of Wards and the whole Court That the said Mannors and Lands were liable to the said Extent And Dodderidge Justice who argued first said that the Kings Majestie had sundry prerogatives for the Recovery of Debts and other Duties owing unto him First he had this prerogative ab origine legis That he might have the Lands the Goods and the Body of the Person his Debtor in Execution for his Debt But at the Common Law a common person a common person could not have taken the body of his debtor in execution for his debt but the same priviledg was given unto him by the Statute of 25. E. 3. cap. 17. At the Common Law he said that a common person Debtee might have had a Levari facias for the Recovery of his Debt by which Writ the Sheriffe was commanded Quod de terris Catallis ipsius the Debtor c. Levari faciat c. but in such Case the Debtee did not meddle with the Land but the Sheriffe did collect the Debt and pay the same over to the Debtor But by the Statute of West 2. cap 20. The Debtee might have an Elegit and so have the moyetie of the Lands of his Debtor in Execution for his Debt as it appeareth in C. 3. part 12. in Sir William Harberts Case Secondly He said That the King had another prerogative and that was to have his Debt paid before the Debt of any Subject as it appeareth 41. E. 3. Execution 38. and Pasc 3. Elizabeth Dyer 197. in the Lord Dacres and Lassels Case and in M. 3. E. 6. Dyer 67 Stringfellows Case For there the Sheriffe was amerced because the King ought to have his Debt first paid and ought to be preferred before a Subject vid. 328 Dyer There the words of the Writ of Priviledg shew that the King is to be preferred before other Creditors By the Statute of 33. H. 8. cap. 39. The Execution of the Subject shall be first served if his Judgment be before any Processe be awarded for the Kings debt In the Statute of 25. E. 3. Cap. 19. I find that by the Common Law the King might grant a Protection to his Debtor that no other might sue him before that the King was satisfied his debt See the Writ of Protection Register â— 81. B. the words of which are Et quia nolumus solutionem debitorum nostrorum caeteris omnibus prout ratione Perogativae nostrae totis temporibus retroactis usitatae c. But that grew such a Grievance to the Subject that the Statute of 25. E. 3. Cap. 19. was made And now by that Statute a common person may lawfully sue to Judgment but he cannot proceed to Execution and so the Kings Prerogative is saved unless the Plaintiffe who sueth will give security to pay first the Kings Debt For otherwise if the Paty doth take forth Execution upon his Judgment and doth levy the money the same money may be seized upon to satisfie the Kings Debt as appeareth in 45. E. 3. title Decies tantum 13. The third Prerogative which the King hath is That the King shall have the Debt of the Debtor to the Kings Debtor paid unto him v. 21 H. 7. 12. The Abbot of Ramseys Case The Prior of Ramsey was indebted to the King and another Prior was indebted to the Prior of Ramsey and then it was pleaded in Barr that he had paid the same Debt to the King and the Plea holden for a good Plea
And if Rent be due and payable unto me by my Lessee for years the same may be taken for the Kings Debt and the special matter shall be a good barr in an Avowry for the Rent 38. E. 3. 28. A Prior Alien was indebted to the King for his Farm Rent And being sued for the same he shewed That there was a Parson who held a certain portion of Tythes from him which were part of the Possessions of the same Priory which he kept in his hands so as he could not pay the King his Farm-Rent unlesse he might have those Tythes which were in the Parsons hands Wherefore a Writ was awarded against the Parson to appear in the Exchequer and to shew cause why he should not pay the same to the King for the satisfying of the Kings Rent And there Skipwith Justice said That for any thing which toucheth the King and may turn to his advantage to hasten the Kings business that the Exchequer had jurisdiction of it were it a thing Spiritual or Temporal V. 44 E. 3. 43 44. the like Case but there it is of a Pension And the Case of 38 Ass 20. was the Case for Tythes See also 12 E. 3. Swalds Case to the same purpose If two Coparceners be in ward to the King upon a suggestion that one of them is indebted to the King the staying of his Livery shall be for his moytie untill the King be satisfied his debt but the other sister shall have Livery of the other moytie which belongs unto her Fitz. N. 5. 263. a. Mich 19 E. 3. and Hill 20. E. 3. which was one and the same Case The Kings Debtor brought a Quo minus in the Exchequer against his Debtor the Defendant appeared And the Plaintiffe afterwards would have been Nonsuit but the Court would not suffer him so to be And it was there said That a Release by the Kings Debtor unto his Debtor would not discharge the Kings Debtor as to that Debt In a Quo minus in the Exchequer upon a Debt upon a simple Contract the Defendant cannot wage his Law because the King is to have a benefit by the suit although the King be no party to the suit C. 4. par 95. The fourth Prerogative which the King hath is That the King shall have an Accompt against Executors because the Law there maketh a privity it being found by matter of Record that the Testator was indebted to the King which Record cannot be denied But in the Case of a common person an Accompt will not lie against Executors for want of privity The Accompt which the King brings is ad computandum ad Dominum Regem c. without setting forth how the party came liable to accompt But a common person in his accompt brought ought to shew how that the party was Receiver Bailiff c. If a man doth entermeddle with the Kings Treasure the King pretending a title to it he shall be chargeable for the same to the King C. 11. part 89. the Earl of Devonshire's case The Master of the Ordnance pretending that the old broken and unserviceable Ordnance belonged unto him by reason of his Office procured a Privy-seal c. and afterwards disposed of them to his own use and dyed And his Executor was forced to accompt for them Sir Walter Mildmay's Case Mich. 37. 38 Eliz. Rot. 312. in the Exchequer Sir Walter Mildmay was Chancellor of the Exchequer and suggested unto the Lord Treasurer of England That his Office was of great attendance and desired the Lord Treasurer that he would be pleased to allow unto him 100l. for his dyet and 40l. per annum for his attendance which the Lord Treasurer did grant unto him and he enjoyed it accordingly and afterwards dyed and his Executors were forced to accompt for it and to pay back the mony for all the time that their Testator received it C. 11. part 90 91. there is cited That Sir William Cavendish was Treasurer of the Chamber of King H. 8. E. 6. and Queen Mary and that he was indebted to K. E. 6. and to Q. Mary and that being so indebted he purchased divers lands and afterwards aliened them and took back an estate therein to himself and his wife and afterwards dyed without rendring any Accompt the Terre-Tenants of the land were charged to answer to Q. Elizabeth for the monies to which they pleaded the Queens special Pardon and it was in conclusion said That the Pardon was a matter of grace ex gratia but in Law the Terre-Tenants were chargeable to the said Queen for the monies v. Com. 321. 5 Eliz. Dyer 244 245. in the Exchequer Mich. 24. E. 3. Rot. 11. ex parte Rememb Regis Thomas Farel Collector of the Fifteenths and Tenths being seised of lands in Fee and being possessed of divers goods and chattels at the time when he entred into the said Office being then indebted to the King did alien them all and afterwards dyed without heir or Executor And a Writ went out unto the Sheriffe to enquire what lands and tenements goods and chattels he had at the time he entred into the said Office and Processe issued forth against the Terre-Tenants and the Possessors of his goods and chattels ad computand pro collectione predict ad respondendum satisfaciendum inde Domino Regi V. Dyer 160 50 Ass 5. A notable Case to this purpose Mich. 30. E. 3. rot 6. William Porter Mint-Master did covenant with the King by Indenture enrolled That for all the Bullion which should be delivered ad Cambium Regis pro Moneta faciend that mony should be delivered for it within eight dayes which Covenant he had broken and therefore the King paid the Subject for the Bullion And afterwards because John Walweyen and Richard Piccard duxerunt praesentaverant dict William Porter in officium illud tanquam sufficientem and that they offered to be Sureties for him but were not accepted of which they did confesse Ideo consideratum est quod predict Walweyen Piccard onerentur erga Dominum Regem And they afterwards were charged to satisfie the King for all the monies which the King had paid for the said Porter And although that none of the Kings treasure came to their hands nor they had not any benefit as appeared by any matter in the Case yet because they were the means and causers that the King sustained damage and losse they were adjudged to be chargeable to the King C. 11. par 93. this Case is there cited Upon these Cases vouched by me I make divers Observations 1. I observe That from Age to Age what care the Judges had for the Advancing and the recovering of the Kings Debts because Thesaurus Regis est vinculum Pacis Bellorum nervus And it is the slowing fountain of all bounty unto the Subject 2. I observe That the King hath a Prerogative for the Recovery of Debts due unto him 3. I observe That although the Debt due to the King be
a Capias lay upon a force although it did not lie in case of Debt Agreement c. The King is Parens Legum because the Laws flowed from him he is Maritus Legum For the Law is as it were under Covert Baron he is Tutor Legum For he is to direct the Laws and they desire aid of him And he said that all the Land of the Kings Debtor are liable to his Debt The word Debitor is nomen equivocum and he is a Debtor who is any ways chargeable for Debt Damages Dutie Rent behind c. The Law amplifies evry thing which is for the Kings benefit or made for the King If the King releaseth all his Debts he releases only debts by Recognizance Judgment Obligation Specialtie or Contract Every thing for the benefit of the King shall be taken largely as every thing against the King shall be taken strictly and the reason why they shall be taken for his benefit is because the King cannot so nearly look to his particular because he 〈◊〉 intended to consider ardua regni pro bono publico The Prerogative Laws is not the Exchequer Law but is the Law of the Realm for the King as the Common Law is the Law of the Realm for the Subject The Kings Bench is a Court for the Pleas of the Crown The Common Pleas is for Pleas betwixt Subject and Subject and the Exchequer is the proper Court for the Kings Revenues 13. E. 4. 6. If the King hath a Rent-charge he by his Prerogative may distrein in any the Lands of the Tenant besides in the Lands charged with the Rent 44. E. 3. 15. although that the partie purchaseth the Lands after the Grant made to the King but then it is not for a Rent but as for a dutie to the King And the King in such case may take the Body Lands and Goods in Execution See the Lord Norths Case Dyer 161. where a man became Debtor to the King upon a simple Contract N. When he was Chancellor of the Augmentation received a Warrant from the Privy Councel testifying the pleasure of King E. 6. That whereas he had sold to R. c. That the said Chancellor should take Order and see the delivery of c. and should take Bond and Sureties for the King for the payment of the money By force of which Warrant he sent one T. his Clark to take a Bond of W. for the payment of the money and he took Bond for the King accordingly and brought the same to the Chancellor his Master and delivered the same to him to the Kings use and presently after he deliverd the same back to T. to deliver over to the Clark of the Court who had the charge of the keeping of all the Kings Bonds and Specialties And when T. had received the same back he practised with R. and W. to deliver them the Bond to be cancelled and so it was done and cancelled And it was holden in that Case because that the said Bond was once in the power and possession of N. that he was chargeable with the Debt But the Queen required the Debt of R. and W. who were able to satisfie the Queen for the same In Mildmay's Case cited before there it was holden That the Queen might take her Remedy either against the Parties who gave the insufficient Warrant or against Mildmay himself at her Election So a man he said shall be lyable for damages to the King for that is taken to be within the word Debita In Porters Case cited before there was neither Fraud Covin nor Negligence and yet the persons who presented Porter to the King to hold the Office were chargeable for his negligence whom they preferred to be Master of the Mint But in that Case The Bodie and goods of Porter were delivered to his Sureties as in Execution to repay them the monie which the King had levied of them These Cases prove that the word Debitor is taken in a large sence That the King shall have for the Debts due to him the Bodie Goods and Lands in Execution The word Goods doth extend to whatsoever he hath 11. H. 7. 26. The King shall have the Debt which is due to his Debtor upon a simple Contract and therein the Debtor of the Debtor shall not wage his Law For after you say that you sue for the King it is the Kings Debt and the King if he please may have Evecution of it An Ejectione firme was brought in the Exchequer by Garraway against R. T. upon an Ejectment of Lands in Wales and it was maintainable in the Exchequer as well as a Suit shall be maintainable here for an Intrusion upon Lands in Wales upon the King himself and the King shall have Execution of the thing and recover Damages as he shall in a Quo minus in satisfaction of a Debt which is due by his Debtor to the King 8. H. 5. 10. There the Kings Debtor could not have Quo minus in the Exchequer The Case there was That a man Indebted to the King was made Executor and by a Quo minus sued one in the Exchequer who was indebted unto his Testator upon a simple Contract as for his proper debt and the Quo minus would not lie because the King in that Case could not sue forth Execution and every Quo minus is the Kings Suit and is in the name of the King 38. Ass 20. A Prior Alien was arrear in Rent to the King The Prior brought a Quo minus in the Exchequer against a Parson for detaining of Tythes here is a variance of the Law and the Court for the Right of Tythes ought to be determined by the Ecclesiastical Law and it was found by Verdict for the Prior. A Serjeant moved That the Court had not jurisdiction of the Cause To whom it was answered that they had and ought to have Jurisdiction of it For that when a thing may turn to the advantage of the King and hasten his business that Court had Jurisdiction of it and divers times the said Court did hold jurisdiction in the like Case and thereupon issue was joyned there and the Reporter made a mirum of it But it seems the Reporter did not understand the Kings Prerogative For it is true That such Suit for Tythes doth not fall into the Jurisdiction of the Kings Bench or Common Pleas but in the Exchequer it is otherwise And if the Suit be by Quo minus it is the Kings Suit At a common persons Suit the Officer cannot break the house and enter but at the Kings Suit he may And a common person cannot enter into a Liberty but the King may if it be a common Liberty But for the most part when the King granteth any Liberty there is a clause of Exception in the Grant That when it shall turn to the prejudice of the King as it may do in a special Case there the King may enter the Liberty and a house is a Common Liberty and the
Execution of Justice is no wrong when it is for the King The King hath the precedency for the payment of his Debts to him as it appeareth in Stringfellows Case cited before by Justice Dodderidge And when Lands are once lyable to the payment of the Kings debts let the Lands come to whom you will yet the Land is lyable â—o his debt as it appeareth in Cavendishes Case Dyer 224 225. which was entred Pasc â— Eliz. Rot. 111. in the Exchequer 50. Ass 5. A man bindeth himself and his heirs and dieth and the heir alieneth the Land the Land is discharged of the Debt as to the Debtee But in the Kings Case if at any time the Land and Debt meet together you cannot sever them without payment of the Kings debt Vid. Littleton Executors and soe Administrators are chargeable in an Account to the King and the Saying of Mr Littleton are adjudged for Law and are Judgments A sale in Market over nor a Fine and Nonclaim shall not bind the King and so it is of things bought of the Kings Villeyn because Nullum tempus occurrit Regi A common person in London by Custom may attach a Debt in anothers hands As he may come into Court and shew that his debtor hath not any thing in his hand to satisfie his debt but only that debt which is in the hands of another man and that Custom is allowable and reasonable And if it shall be reasonable for a Subject so to attach a Debt will you have it unreasonable for the King Before the Statute of 25. E. 3. cap. 19. The King might protect his Debtor as it appeareth by the Register 281. and Fitz. 28. 6. But the Statute of 25. E. 3. gave the Partie a liberty to proceed to Judgement but doth barr him from taking forth of Execution upon the Judgment untill the King be satisfied his Debt In Dyer 296 297. a man condemned in the Exchequer for a Debt due to the Queen was committed to the Fleet and being in Execution he was also condemned in the Kings Bench at the Suit of a Subject upon a Bill of Debt in Custodia Mariscalli Marisâ—alciae Afterwards upon prayer of the Partie a Habeas Corpus cum causa was awarded out of the Kings Bench to the Warden of the Fleet who retorned the Cause ut supra and he was remanded to the Fleet in Execution for the Debt Afterwards a Command was given by the Lord Treasurer upon the Queens behalf to suffer the Prisoner to go into the Countrie to collect and levie monie the sooner to pay the Queen her Debt In that Case the Subject brought an Action of Debt against the Warden of the Fleet upon the Escape who justified the Escape by the said Commandment It was holden in that case That although the Partie was in Execution for both the Debts yet before the Queen was satisfied the Execution for the Subject did not begin For the King cannot have equall to have interest in the Body of the Prisoner Simul cum illo But if the Case were as Lassels case 3. Eliz Dyer then he might be in Execution for the King and for the Subject Lassels was taken in Execution at the Suit of a Subject and before the Writ was retorned a Writ for the Queen came to the Sheriffe and Lassels was kept in Execution for the Queen In that case Lassels was in Execution for them both viz. the Queen and the Subject So there is a difference where the Partie is first taken for the King and where he is first taken for the Subject Now I will consider of the Case at Barr Whether the Land might be extended notwithstanding the Conveyance made The Kings Debt is to be taken largely and so Goods in such case are to be taken largely and so is it likewise of Lands viz. any Land be it Land in Use upon Trust by Revocation By the Law Debts are first to be paid then Legacies then childrens preferments There is a difference where the Land was never in the man and where it was once in him C. 8. Part. 163. Mights Case Might Purchased lands to him and to his heir It was resolved that this original Purchase could not be averred to be by Collusion to take away the Wardship which might accrue after the death of Might for they were Joynts and the survivor shall have the whole Note that there was no fraud for that it was never in him but if it had once been the Lands only of Might and then Might had made the conveyance to him and his heir then it would have been fraud to have deceived the King of the Wardship In the Case at Barr Hatton hath not aliened the land For an Alienation is alienum facere and here he hath not made it the land of another having a power of Revocation Sir John Packington Mortgaged his lands for 100l The Mortgagee enfeoffed W. and within the time of Redemtion Packington and he to whom the money was to be paid agreed that Packington should pay him 30l of the said 100l and no more and yet in appearance for the better performance of the Condition it was agreed that the whole 100l should be paid and that the residue above 30l should be repaid back to Packington which was done accordingly It was resolved in that Case that the same was no performance of the Condition because it was not a payment animo solvendi And so in this Case there was not any allienation animo 〈◊〉 For Sir Christopher Hatton gave the Lands but yet he kept the possession and received the profits of them And if Sir Christopher Hatton had given the land with power of Revocation or reserving as in this Case he did an Estate for his own life it had been all one If a man deviseth the profits of such lands the lands themselves do pass And a Conveyance of lands upon Condition not to take the profits is a void condition in Law Lit. 462 463. A Feoffment is made upon confidence and the Feoffor doth occupie the land at the will of the Feoffees and the Feoffees do release unto the Feoffor all their right Litt. 464. there it was said that such a Feoffor shall be sworn upon an Inquest if the lands be of the value of 40s per annum and that by the Common Law Therefore it seemeth that the Law doth intend That when a man hath Feoffees in Trust that the lands are his own and then if in such case the Commonwealth shall be served shall not the King who is Pater reipublicae be served so as he may be satisfied his debts If the Case of Walter de Chirton had never been yet I should now have the same opinion of the Law in such Case as the Judges then had The King is not bound by Estopels nor Recoveris had betwixt strangers nor by the fundamental Jurisdiction of Courts as appeareth 38. Ass 20. where a Suit was for Tythes in the Exchequer being a meer spiritual
Judgement was affirmed for by intendment the Judgment was given upon the first Original which bore date before the Iudgment Another Error was assigned because the Plea was That such a one was seised of the Castle and Mannor of Mulgrave predictis in the plural number I answer that there is not any colour for that Error for the word predictis doth shew that the Mannor and Castle are not one and the same thing So upon the whole matter I pray that the Iudgment given in the Court of Pleas may be affirmed Sir Henry Yelverton argued for the Lord Sheffield that the Iudgment might be reversed There are three things considerable in the Case First If any right of the ancient estate tail was in Francis Bigot who was attainted at the time of his Attainder Secondly admit that there was an ancient right if it might be forfeited being a right coupled with a Possession and not a right in gross Thirdly Whether such a Possession discend to Francis Bigot that he shall be remitted and if this Remitter be not overreached by the Office First If by the Feoffment of Francis Bigot 21. H. 8. when he was Cestuy que use and by the Livery the right of the ancient entail be destroyed And I conceive it is not but that the same continues and is not gone by the Livery and Seisin made There is a difference when Cestuy que use makes a Feoffment before the Statute of 1 R 3. and when Cestuy que use makes a Feoffment after the said statute of 1 R 3 For before the statute hee gives away all Com 352. but after the statute of R. 3. Cestuy que use by his Feoffment gives away no Right In 3 H. 7 13. is our very case almost For there the Tenant in Tail made a Feoffment unto the use of his Will so in our Case and thereby did declare that it should be for the payment of his debts and afterwards to the use of himself and the heirs of his body and died the heir entred before the debts paid but in our Case he entred after the debts paid there it is said that the Feoffment is made as by Cestuy que use at the Common Law for his entrie was not lawfull before the debts paid But when Francis Bigot made a Feoffment 21 H. 8. he was Cestuy que use in Fee and then is the Right of the Estate tail saved by the Statute of 1. R. 3. And by the Statute of 1. R. 3. he gives the Land as Servant and not as Owner of the Land and so gives nothing but a possession and no Right 5 H. 7. 5. Cestuy que use since the Statute of 1 R. 3. is but as a Servant or as an Executor to make a Feoffment And if an Executor maketh a Feoffment by force of the Will of the Testator he passeth nothing of his own Right but only as an Executor or Servant 9 H. 7. 26. proves that Cestuy que use since the Statute of 1 R. 3 hath but only an Authority to make a Feoffment For Cestuy que use cannot make a Letter of Attorney to make Livery for him for he hath but a bare Authority which cannot be transferred to another Cestuy que use hath a Rent out of Land and by force of the Statute of 1 R. 3. he maketh a Feoffment of the Land yet the Rent doth remain to him for he giveth but a bare possession So in our Case the right of the Estate Tail doth remain in Francis Bigot notwithstanding his Feoffment as Cestuy que use by the Statute of 1 R. 3. If Cestuy que use by force of the Statute of 1 R. 3. maketh a Feoffment without Warranty the Vouchee shall not Vouch by force of that Warranty For as Fitzherbert saith Cestuy que use had no possession before the Statute of 27. H. 8. Cap. 10. 27 H. 8. 23. If Feoffees to Use make a Letter of Attorney to Cestuy que use to make a Feoffment he giveth nothing but as a Servant The Consequent of this Point is That the right of the old Estate Tail was in Francis Bigot at the time of his Attainder and was not gone by the Feoffment made 21 H. 8. The second Point is Whether a right mixt with a possession of Francis Bigot might be forfeited by the Statutes of 26. H. 8. and the private Act of 31. H. 8. The Statute of 31. H. 8. doth not save this Right no more then the Statute of 26. H. 8. For they are all one in words I say that he hath such a right as may be lost and forfeited by the words of the Statute of 26. H. 8. Cap. 13. For that Statute giveth three things First It gives the Forfeiture of Lands and not of Estates Secondly How long doth that Statute give the lands to the King For ever viz. to the King his Heirs and Successors Thirdly It gives the lands of any Estate of Inheritance in Use or Possession by any Right Title or means This Estate Tail is an Estate of Inheritance which he hath by the Right by the Title and by the means of coming to the Right it is forfeited These two Statutes were made for the punishment of the Child For the Common Law was strict enough against the Father viz. he who committed the Treason And shall the same Law which was made to punish the Child be undermined to help the Child The ancient Right shall be displaced from the Land rather then it shall be taken from the Crown which is to remain to the Crown for ever And this Statute of 26 H. 8. was made pro bonoâ— publico and it was the best Law that ever was to preserve the King and his Successors from Treason for it is as it were a hedg about the King For before this Statute Tenant in Tail had no regard to commit Treason For he forfeited his Lands but during his own life and then the Lands went to the issue in Tail But this Statute doth punish the Child for the Fathers offence and so maketh men more careful not to offend least their posterity may beg I take two grounds which are frequent in our Law First That the King is favoured in the Exposition of any Statute Com. 239 240. The second That upon the construction of any Statute nothing shall be taken by equity against the King Com. 233 234. Here in this Case although the Right were not in possession yet it was mixed with the possession from Anno 13. E. 1. untill 26. H. 8. Tenant in Tail feared not to commit Treason For the Statute of West 2. did preserve the Estate Tail so as the Father could not prejudice his issue per factum suum And therefore the Commonwealth considering that a wicked man did not care what became of himself so as his issue might be safe provided this Statute of 26. H. 8. Cap. 13. although the Statute of 16. R. 2. Cap. 5. which giveth the Premunire doth Enact that all Lands and
Tenements of one attainted in a Premunire shall be forfeited to the King Yet Tenant in Tail in such Case did not forfeit his Lands C. 11. part 63. b. as the Statute of West 2. Cap. 1. saith in particular words That Tenant in Tail shall not prejudice his issue Therefore the Statute of 26. H. 8. in particular words saith That Tenant in Tail shall forfeit his Lands for Treason The Right of Francis Bigot is not a right in gross but a Right mixed with a possession The Statute of West 2. Cap. 1. brought with it many mischiefs For by that Statute the Ancestor being Tenant in Tail could not redeem himself out of prison nor help his wife nor his younger children and that mischief continued untill 12. E. 4. Taltaram's Case and then the Judges found a means to avoid those mischiefs by a common Recovery and this Invention of a common Recovery was a great help to the Subject Then came the Statute of 32. H. 8. Cap. 36. which Enacted That Fines levied by Tenant in Tail should be a good barr to the issue of any Estate any way entailed If the Son issue in tail levieth a Fine in the life of his Father who is Tenant in tail it shall be a barr to him who levieth the Fine and to his issues And both these viz. the Common Recovery and the said Statute did help the Purchaser And shall not this Statute of 26. H. 8. help the King The Statute of 26. H. 8. Cap. 13. hath not any strength against the Ancestor but against the Child For the Construction of Statutes I take three Rules First When a Case hapneth which is not within the Letter then it is within the intent and equity of the Statute Com. 366. 464. Secondly All things which may be taken within the mischief of the Statute shall be taken within the Equity of the Statute 4. H. 6. 26. per Martin Thirdly When any thing is provided for by a Statute every thing within the same mischief is within the same Statute 14. H. 7. 13. The Estate tail of Francisâ— Bigot and Katharine his wife is forfeited by the Statute of 26 H. 8. There is a difference when the Statute doth fix the forfeiture upon the person As where it is enacted that J. S. shall forfeit his lands which he had at the time of his Attaindor The Judges ought expound that Statute only to J. S. But the Statute of 26 H. 8. doth not fix the forfeiture upon the person but upon the land it self And Exposition of Statutes ought to extend to all the mischiefs 8 Eliz. Sir Ralph Sadler's Case in B. R. where an Act of Parliament did enact That all the lands of Sadler should be forfeited to the King of whomsoever they were holden Sadler held some lands of the King in that case the King had that land by Escheat by the Common-Law and not by the said Statute Com. 563 The Law shall say that all the rights of the tail are joyned together to strengthen the estate of the King Tenant in tail before the Statute of 1 E. 6. cap. 14. of Chauntries gave lands to superstitious uses which were enjoyed five years before the said Statute of 1 E. 6. made Yet it was adjudged that the right of the issue was not saved but that the land was given to the Crown for the issue is excluded by the saving in the said Statute If Tenant in tail give the lands to charitable uses the issue is barred For the saving of the Statute of 39 Eliz. cap. 5. excludes him And he is bound by the Statute of Donis So the Statute of 26 H. 8. cap. 13. and the private Act of 31 H. 8. do save to all but the heirs of the Offenders The third Objection was That Ratcliffe was not excluded by the saving for it was said That the same doth not extend but to that which is forfeited by his Ancestors body And here Ratcliffe had but a Right and that was saved And the Statute doth not give Rights I answer first The Statute of 26 H. 8. is not to be expounded by the letter for then nothing should be forfeited but that only which he had in possession and use Tenant in tail is disseised and attainted for treason By the words of the said Statute of 26 H. 8. he forfeits nothing yet the issue in tail shall forfeit the lands for the issue in tail hath a right of Entrie which may be forfeited 6 H. 7. 9. A right of Entrie may escheat and then it may be forfeited Secondly The Statute is not to be construed to the possession but if he hath a mixt right with the possession it is forfeited but a right in grosse is not forfeited Tenant in tail of a Rent or Seignorie purchaseth the Tenancie or the Land out of which the Rent is issuing and is attainted He shall forfeit the Seignorie and Rent or the Land for the King shall have the Land for ever And then the Seignorie or Rent shall be discharged for otherwise the King should not have the Land for ever For the King cannot hold of any Lord a Seignorie 11 H. 7. 12. The heir of Tenant in tail shall be in Ward for a Meanaltie descended unto him the Meanaltie not being in esse and yet it shall be said to be in esse because of the King C. 3 part 30. Cars Case Although the Rent was extinguished yet as to the King it shall be in esse The difference is betwixt a Right clothed with a possession and a right in grosse viz. where the Right is severed from the possession there it is in grosse For there the Right lieth only in Action and therefore neither by the Statute of 26 H. 8. nor by the private Act of 31 H. 8. such a Right is not forfeited C. 3. part 2. C. 10. part 47 48. Right of Action by the Common-Law nor by Statute-Law shall escheat and therefore it is not forfeited For no Right of Action is forfeitable because the right is in one and the possession in another Perkins 19. A Right per se cannot be charged 27 H. 8. 20. by Mountague A man cannot give a Right by a Fine unless it be to him who hath the possession C. 10. part Lampits Case Sever the possibility from the right and it doth not lie in grant or forfeiture but unite them as they are in our Case and then the Right may be granted or forfeited for that Right clothed with a possession may be forfeited A Right clothed with the possession 1. It tastes of the possession 2. It waits upon the possession 3. It changes the possession The Bishop of Durham hath all Forfeitures for Treason by the Common-Law within his Diocess viz. the Bishoprick of Durham And if Tenant in tail within the Bishoprick commits Treason and dyeth the Issue in tail shall enjoy the land against the Bishop Dyer 289 a. pl. 57. For the Bishop hath not the land for ever but the Issue
in tail may have a Formedon against the Bishop But in our Case it is otherwise Tenant in tail maketh a Feoffment and takes back an estate unto himself in tail the remainder in Fee to his right heirs The Bishop in such case shall not have the land forfeited for Treason because that the Bishop cannot have the estate tail but in such case the King shall have the Land by the Statute of 26 H. 8. cap. 13. And the Bishop in such case shall not have the Fee because it is one estate and the King shall not wait upon the Subject viz the Bishop The Right waits upon the possession For 11 H. 7. 12. If the son and a stranger disseiseth the father and the father dyeth this right infuseth it self into the possession and changeth the possession And it is a Release in fact by the father to the son 9 H. 7. 25. Br ' Droit 57. A Disseisor dyeth seised and his heir enters and is disseised by A. The first Disseisee doth release unto A. all his right All the right is now in the second Disseisor viz. A. because the right and the possession meet together in A. 40 E. 3. 18. b. Tenant in tail makes a Lease for life with warranty If Tenant for life be impleaded by the heir to whom the warranty doth discend he shall rebut the right in tail being annexed with the possession for that is in case of a saving of the land by that right But where one demands land there all the Right ought to be shewed 11 H. 4 37. If a man be to bring an Action to recover then he ought to make a good title by his best right if he hath many rights But if a man be in possession and an Action be brought against him then he may defend himself by any of his rights or by all his rights 11 H. 7. 21. Tenant in tail maketh a Feoffment to his use upon Condition and afterwards upon his Recognisance the land is extended and afterwards the Condition is performed yet the interest of the Conusee shall not be avoided For although the Extent come upon the Fee and not upon the Tail yet when the Extent was it was extracted out of all the rights C. 7. part 41. A Tenant in tail makes a Lease for life now he hath gained a new Fee by wrong and afterwards he makes a Lease for years and Tenant for life dyeth He shall not avoid his Lease for years although he be in of another estate because he had a defeicible title and an ancient right the which if they were in several hands shall be good as the Lease of the one and the Confirmation of the other And being in one hand it shall be as much in Law as a saving of the Right In our Case the Right and Possession both were in Francis Bigot And Ratcliffe is entitled to the old estate tail and to the new also There is a difference betwixt him who claims the land so forfeited to the King and the heir of the body of the person attainted Littâ—719 Land is given to A and the issue males of his body the remainder to the heirs females of his body If the Father commit Treason both heir male and female are barred for they both claim by the Father but if the heir male after the death of his Father be attainted of Treason the King shall have the lands as long as he hath issue male of his body and then the heir female shall have the lands for she shall not forfeit them because she claimeth not by the brother but by the father Com. in Manxels case A man hath three several rights of estate tails and comes in as Vouchee If the Recovery pass it shall bar all his Rights for one Recompence and they shall be all bound by one possession There is a difference where the Kings title is by Conveyance of the party and where for forfeiture for Treason by this Statute of 26 H. 8. cap. 13. v. the Abbot of Colchesters Case The Abbot seised in the right of his house did commit Treason and made a Lease for years and then surrendred his house to the King after the Statute of 26 H. 8. The question was whether the King should avoid the Lease It was adjudged That the King was in by the surrender and should not avoid the Lease and not by the Statute of 26 H. 8. But if the King had had it by force of the Statute then the King should have avoided the Lease Com. 560. Tenant in tail the reversion to the King Tenant in tail maketh a Lease for years and is attainted of Treason The King shall avoid the Lease upon the construction of the Statute of 26 H. 8. which gives the lands unto the King for ever The third point is upon the Remitter This point had been argued by way of Admittance For as I have argued The ancient right is given away unto the King and then there is no ancient right and so no Remitter There is a difference where the issue in tail is forced to make a Title and where not In point of defence he is not so precisely forced to make his Title as he is in case of demand Whereas the Defendant demands the lands from the King the Discent will not help him because the Attaindor of the Ancestor of Ratcliffe hinders him in point of title to make a demand Dyer 332 b. In this case he ought to make himself heir of the body of Francis Bigot and Katharine C. 8. part 72. C. 9. part 139 140. There Cook couples the Case of Fine levied and the Case of Attaindor together C. 8. part 72. Land is given to husband and wife and to the heirs of their two bodies The husband alone levies a Fine with proclamations Or is attainted of Treason and dyeth The wife before Entry dyeth The issue is barred and the Conusee or King hath right unto the land because the issue cannot claim as heir to them both viz. father and mother for by the father he is barred 5 H. 7. 32 33. C. 9. part 140. Husband and wife Tenants in tail If one of them be attainted of Treason as it was in our Case the lands shall not discend to the issue because he cannot make title And there Cook puts the Case That if lands be given to an Alien and his wife they have a good estate tail and yet it is not discendable to the issue The Consequence then of all this is That if Ratcliffe cannot take advantage of the discent by reason of the disability by Attaindor à fortiori he shall not be remitted And yet I confess that in some Cases one may be remitted against the King Com. 488 489 553. But that is where the King is in by matter of Law by Conveyance but in this Case the King is in by an Act of Parliament and there shall be no Remitter against a matter of Record Another reason is because that
the possession is bound by the Judgment of Attaindor and the Act of Parliament 5 H. 7. 31. 7 H. 7. 15. 16 H. 7. 8. A discent of land shall not make a title against the King or any other who hath the land by an Act of Parliament But then in our Case If there should be a Remitter yet the same is overreached by the Office 〈◊〉 part 10. before the Statute of 33 H. 8. cap. 20. there ought to have been an Office found in the Case of Attaindor of Treason Br. Cases 103. Brook Office Devant c. 17. I do not mean an Office of intitling but an Office declaratory of a conspicuous title C. 5. part 52. There are two manner of Offices One which vesteth the estate and possession of the land c. in the King Another which is an Office of Instruction and that is when the estate of the land is lawfully in the King but the particularity thereof doth not appear upon record And the Office of Instruction shall relate to the time of the Attaindor not to make Queen Elizabeth in our Case in by discent but to avoid all meâ—ne Incombrances And is not this Remitter an Incombrance And for that purpose the Office shall relate For in things of Continuance Nullum tempus occurrit Regi C. 7. part 28. For so the rule of Nullum tempus c. is to be understood of a thing of Continuance and not a thing unica vice v. Fitz. Entre Congeable 53. Trav. 40. where it is said Where the King hath cause to seise for the forfeiture of Tenant for life if the Tenant for life dyeth the Reversion may enter for in that case Tempus occurrit Regi and the King cannot seize after the death of the Tenant for life 35 H. 6. 57. There is no discent against the King and if there be no discent then there is no Remitter The consequence of all this is That the Office doth relate to the Right And that the Monstrans de Droit doth not lie And the want of Office found for all this time was the fault of the Kings Officers and shall not prejudice the King But if the Office should not relate then the Monstrans de Droit would lie because then the King was in but by one single matter of Record We shew in the Office 33 Eliz. That there issued forth a Commission directed to certain of the Privy-Councel to enquire of the Treason and if Francis Bigot upon the Treason were Indicted And in our Case we shew immediately another Commission was directed to the Lord Chancellor and the two Chief Justices c. to arraign Francis Bigot And all that is confessed by Ratcliffe himself viz. modo forma And therefore the Objection which Glanvile made was frivolous viz. That it did not appear that Francis Bigot was attainted by Verdict by Confession or by Outlawry And so he concluded That for these causes the Judgment given in the Court of Common-Pleas ought to be reversed George Crook argued for Ratcliffe and he prayed that the Judgment might be affirmed I will argue only these points following 1. That Francis Bigot had not so much as a right of Action at the time of his Attaindor for he had not any right at all 2. Admit that he had a right of Action If this right of Action be given to the King by the said Statutes of 26 31 H. 8. It was objected That the right being clothed with a possession that the same is given to the King But I will prove the contrary 3. When Francis Bigot being Tenant in tail and being attainted and executed for Treason and then Katherine his wife dyeth being one of the Donees in tail 21 H. 8. and the lands discend to Ratcliff If the Office afterwards found shall relate to take away the Remitter I say it doth not but that his Remitter doth remain to maintain his Monstrans de Droit and he is not put to his Petition The chief point is What right Francis Bigot had at the time of his Attaindor 1. When Ralph Bigot being Tenant in tail 6 H. 8. made a Feoffment in Fee what right remained in Francis his Son The right is in abeyance viz. in nubibus that is in custodia Legis And then Francis Bigot had no right of that entail 21 H. 8. when he made the Feoffment Com. 487. There Jus is divided viz. Jus recuperandi Jus in randi Jus habendi Jus retinendi Jus percipiendi Jus possedendi but here Francis Bigot had not any of these rights Com. 374. if the Discontinuee of Tenant in tail levieth a Fine with proclamations and five years passe and Tenant in tail dyeth the issue in tail shall have other five years because he is the first to the right 19 H. 8. 7. C. 7. part 81. If Donee in tail maketh a Feoffment in Fee in rei veritate the Donee hath not jus in re neque ad rem C. 3. part 29. Litt. 649. There it appeareth that the right to an estate tail may be in abeyance Com. 552. Walsinghams Case There the King gave land in tail to Wyat who made a Feoffment unto Walsingham Afterwards Wyat was attainted of Treason and there the estate tail of Wyat was forfeited but the cause there was because that the reversion was in the Crown and so no discontinuance by his Feoffment because that the reversion was in the Crown In our Case no right of the estate tail was in Francis Bigot after the Feoffment unto his own use but the right is in abeyance It was objected That the Writ of Formedon is Discendit jus and the Monstrans de Droit was so I answer It is so in point of form in the Writ but not in substance C. 7. part 14. Tenant in tail makes a Lease for life and Tenant for life dyeth Now he hath an ancient right and the Donor may avow upon the Tenant in tail notwithstanding his Feoffment but that is by reason of privity and not by reason of any right he hath Jus recuperandi did discend to the issue in tail viz. Francis Bigot 21 H. 8. He who hath a right of Action giveth the same away by his Livery and Feoffment as appeareth by the Cases put in C. 1. part 111. It was objected That Cestuy que use was an Attorney or Servant therefore he doth not passe his own right for he cannot make an Attorney to make Livery and 9 H. 7. 26. was cited to be adjudged so But it is adjudged to the contrary M. 25 H. 8. in the Kings Bench rot 71. betwixt the Bishop of London and Kellet as it appeareth in Dyer 283. and Bendloe's Reports and C. 9. part 75. For there it is expresse that Cestuy que use may make a Letter of Attorney to make Livery which proves that he makes not the Feoffment as a Servant but as Owner of the Land It was objected That Cuesty que use was as an Executor but that I deny 49
E. 3 17 a. Persay Executors cannot make a Feoffment but they ought to make a Sale and the Vendee viz. the Bargainee is in without Livery and Seisin But if they do make a Feoffment by the Livery all their right is given away But if an Attorney giveth Livery in the name of his Master nothing of his own right to the same Land is given away by the Livery and Seisin but if he maketh Livery in his own name then he giveth away his own right and the Statute of 1 R. 3. cap. 1. maketh the Feoffment good which is made by Cestuy que use against him and his heirs C. 1. pt 111. By Livery and Seisin his whole right is given away Com. 352. The Feoffees of Cestuy que use are disseised the Disseisor enfeoffeth Cestuy que use who enfeoffs a stranger And the Question was If by this Feoffment made by Cestuy que use the right of the first Feoffees were determined and extinct Fitzherbert held that the right was gone and in that case the Uses were raised after 1 R. 3. and before 27 H. 8. cap. 10. Although Yelverton held that it was meant of a Feoffment before the Statute of 1 R. 3. Jus recuperandi was in Francis Bigot Then the question is Whether this Right were given away by the Statutes of 26 31 H. 8. The Statute of 26 H. 8. 31 H. 8. are several and distinct Statutes The words of the Statute of 26 H. 8. are That the party offending shall forfeit all his Possession and Vse but there is no word of Right in the Statute and that Statute doth not extend to give any land but that which was in possession or use And the cause was because before that Statute of 26 H. 8. Uses were not given unto the King for Attaindor for Treason they being but a Trust and Confidence C. 11. part 36 b. The Statute sayes By any wayes title or means But observe when this Statute was made It is a penal Statute and therefore shall be taken strictly Stamford 129 b. C. 11. part 36 b. The Statute of 5 6 E. 6. takes away Clergy but if a stranger be in the house by licence of the Owner the party shall have his Clergy because out of the words and being a penal Law it shall be taken strictly The Statute of 33 H. 8. cap. 20. forfeits for Treason Right to the Land viz. right of Entry but the Statute of 26 H 8. giveth not any Right Before the Statute of 33 H. 8. a right of Entry was not given to the King for Treason à fortiori a right of Action was not forfeited to the King It is the Statute of 31 H. 8. the private Act which hurteth us which expresly gave Rights But this Right in our Case is not forfeited by this Statute which giveth Rights which a man hath But in our Case Francis Bigot had not the Right but the Right was in abeyance Statutes in points of Forfeiture forfeit no more then a man hath But yet a Statute may give to the King that which a man hath not C. 11. part 13. The statute of Monasteries gave that to the King which was not viz. Monasteries in reputation saving to none but strangers no not to the Donors Hussies Case Tenant in tail doth bargain and sell to the King and a statute gave it to the King saving to strangers but neither the Donor nor his issue were within the saving Old Entries 423. b c d. It was enacted That the Duke of Suffolk should forfeit for Treason all his Lands Rights and Tenements and all such Rights and Titles of Entry which he had But thereby rights of Action were not given to the King but only rights of Entries The statutes of 31 33 H. 8. are alike in words If Tenant in tail the Remainder over forfeit c. the Remainder is saved without words of saving But if the statute giveth the land by name unto the King then the Remainder is not saved but is destroyed If a Right of Action be given unto the King the statutes of Limitation and Fines are destroyed for he is not bound by them C. 485 486. in point of forfeiture Stamf. 187 188. There is a difference betwixt real and personal Rights given to the King C. 3. part 3. A right of Action concerning Inheritances are not forfeited by Attaindor c. But Obligations Statutes c. are forfeited by Attaindor C. 7. part 9. A right of Action is not given to the King by general words of an Act because it lieth in privity And it would be a vexation to the subject if they should be given C. 4. pt 124. Although that a Non compos mentis cannot commit Felony yet he may commit Treason for the King is Caput salus reipublicae If Non compos mentis maketh a Feoffment and then committeth Treason the King shall not have an Action to recover the Land of the Non compos mentis as the party himself may have But if Non compos mentis be disseised and then be attainted of Treason then the King may enter into the Lands because the party himself had a right of Entry which is given to the King It was objected That a right of Action clothed with a possession might be given to the King Tenant in tail discontinues and takes back an estate and is attainted of Treason This right of Action shall not be forfeited to the King for his right of Action was to the estate tail In our Case the right of Action was to Katherine for she was Tenant for life The Attaindor was 29 H 8. and the Act which forfeited the Right was made 31 H. 8. and then the right and possession were divided 30 H. 6. Grants 91. The King may grant the Temporalties of a Bishop before they happen to be void And so he may grant a Ward But the King cannot grant the Lands of J. S. when he shall be attainted of Treason for the Law doth not presume that J. S. will commit Treason The Devise of a Term the Remainder over is good But if the Devise be of a Term to one in tail the Remainder over the Remainder is void because the Law doth presume that an estate in tail may continue for ever C. 8. part 165 166. The Law did not presume that Digby at the time of the Conveyance intended to commit Treason It was objected That whatsoever may be granted may be forfeited I deny that C. 3. part 10. by Lumley's Case If the issue in tail in the life of his Father be attainted of high Treason and dyeth it is no forfeiture of the estate tail But if the issue in tail levieth a Fine in the life of his Father it is a bar to his issues C. 3. part 50. Sir George Brown's Case 10 E. 4. 1. there Executors may give away the goods of the Testator but they cannot forfeit the goods of their Testator Com. 293. Osborns Case Guardian in
Soccage may grant the Ward but he cannot forfeit him C. 3. part 3. Right of Actions reals because they are in privity by general words of a Statute are not given to the King v. Dyer 67. String fellow's Case That which is in custodia Legis cannot be taken as a Distress in a Pound overt cannot be taken out of the Pound upon another Distress The third Point is If he were remitted And I conceive that he was remitted When Tenant in tail is attainted of Treason the issue at the Common Law should inherit as if he had not been attainted Lit. 747. C. 1. part 103. for as to the Estate tail there was no corruption of blood C. 10. part 10. If Tenant in tail before the Statute of 26. H. 8. commit Treason the land shall discend to his issue for the issue doth not claim by the Father but per formam doni◠C. 8. part 166. such a discent shall take away entrie But in our Case Ratcliff had both possession and right and therefore is remitted the speciall Verdict finds that he was remitted and the Judgment given in the Court of Pleas in the Exchequer was that he was remitted It was objected that the Remitter was destroyed by the relation of the Office but the same is not so for the Office relates only to avoid Incombrances viz. acts done by himself but to devest the Freehold and to settle the same in the King the Office shall not relate And if it should relate then the King should lose many Lands which he now hath Com. Nichols Case Tenant for life upon condition to have Fee c. If the Office shall relate then the same takes away the Freehold out of the person attainted à principio and then the Fee cannot accrue and so by that means the King should lose the lands A Remitter is no incombrance for it is an ancient right and the Act of the King cannot do wrong C. 1. part 44. b. 27 Ass 30. There Tenant for life with clause of re-entrie is attainted the reversioner entreth the Office shall not relate to take the Freehold out of the reversioner C. 3. part 38. Relatio est fictio juris and shall never prejudice a third person and the Office found in the life of Katherine shal not prejudice him C. 9. part Beamounts Case the husband and wife are Tenants in tail the husband is attainted of Treason and dyeth yet the wife is tenant in tail when it is not to the damage or prejudice of the King there tempus occurrit Regi C. 7. part 28. Baskervile's Case From 29 H. 8. untill 33 H. 8. Katherine and afterwards Ratcliff had the possession and then the Law was taken to be that Ratcliff had a lawfull possession For these reasons he concluded that the Judgment ought to be affirmed In Trinity Term following viz. Trin. 21. Jacobi Regis the Case was argued again and then Coventry the Kings Attorney general argued for the Lord Sheffield That the Judgment given in the Court of Pleas in the Exchequer ought to be reversed He said I will insist only upon the right of the Case Whether upon the right of the Case Ratcliff may maintain a Monstrans de Droit First If by the Attainder the right of the old Estate tail as well as of the new Estate tail be forfeited Secondly Admitting that the old right of entail be not forfeited then if the Office do overreach the Remitter for then a Monstrans de Droit doth not lie but a Petition for the reason of the discontinuance First it is evident that when Ralph Bigot Tenant in tail in possession 6 H. 8. made a Feoffment that that was a discontinuance and it is as clear that the right of the old Estate tail vested in Francis Bigot The Feoffment made by Francis Bigot 21 H. 8. did not devest the right of the old tail First for the weaknesse of the Feoffment Secondly for the inseparableness of the Estate tail which is incommunicable and not to be displaced by weak assurance That Feoffment was made according to the Statute of 1 R. 3. and not by the Common Law but only by force of the said Statute The Feoffment is without Deed and so nothing passeth but only by way of Livery or else nothing at all Also at the time of the Feoffment in 21 H. 8. the Feoffees were in seisin of the Lands and Ratcliff shews in his Monstrans de Droit that Francis Bigot did disseise the Feoffees and so the Feoffment had no force as a Feoffment at the Common Law but only by the Statute of 1 R. 3. For at the Common-Law if Cestuy que use had entred upon the Feoffees and made a Feoffment nothing had passed There is a difference betwixt a Feoffment at the Common Law and a Feoffment according to the Statute of 1 R. 3. which operates sub modo Feoffments are the ancient Conveyances of Lands but Feoffments according to the Statute of 1 R. 3. are upstarts and have not had continuance above 150 years In case of Feoffments at the Common Law the Feoffor ought to be seised of the lands at the time of the Feoffment but if a Feoffment be according to the Statute of 1 R. 3. in such Case the Feoffor needeth not be in possession Feoffments at the Common Law give away both Estates and Rights but Feoffments by the Statute of R. 3 give the Estates but not the Rights In case of Feoffment at the Common Law the Feoffee is in the Per viz. by the Feoffor but in case of Feoffments by the Statute of R. 3. the Feoffees are in in the Post viz by the first Feoffees 14 H. 8 10. Brudnel says that a Feoffment by Cestuy que use by the Statute of 1 R. 3 is like to fire out of a flint so as all the fire which cometh out of the flint will not fasten upon any thing but tinder or gunpowder So a Feoffment by Cestuy que use by force of the Statute of 1 R. 3 will not fasten upon any thing but what the Statute requires 5 H. 7. 5. 21 H. 7. 25. 8 H. 7 8. 27 H. 8. 13. 23. by these books it appeareth that if Cestuy que use maketh a Leafe for life during the Lease he gaines nothing and after the Lease he gains no reversion for the Lessee shall hold of the Feoffees and of them he shall have aid and unless it be by deed Indented in such a Case a Reservation of Rent is void and the Lessor in such a Case cannot punish the Lessee for waste for he makes the Lease meerly by the power which the Statute gives him 8. H. 7. 9. Cestuy que use makes the Feoffment as servant to the Feoffees and if not as servant to the Feoffees yet at least as servant to the Statute of 1 R. 3. If a man entreth upon another and maketh a Lease for life he gains a reversion to himself and shall maintain an Action of Waste but
Cestuy que use when he entreth and maketh a Lease he hath no reversion nor shall punish waste And as it is in the Creation so is it in the Continuance 4 H. 7. 18. If Cestuy que use for life or in tail maketh a Lease for life it is warranted during his own life by the Statute of 1 R. 3. but if Tenant for life at the Common Law maketh a Feoffment or a lease for life there the first Lessor ought to avoid this forfeiture by entrie and it is not void by the death of the second Lessor viz. the Tenant for life 27 H. 8. 23. A Feme Covers is Cestuy que use the husband maketh a Feoffment and dieth the Feoffment is void by his death Br. Feoffments to Uses 48. If Cestuy que use for life levieth a fine it is no forfeiture but good by the Statute of 1 R. 3. during his own life And if in such case Proclamations pass there needeth no claim nor entrie within five years but the Law is contrarie of Tenant for life by the Common Law for if Tenant for life at the Common Law levieth a fine it is a forfeiture Dyer 57. Cestuy que use for life or in tail maketh a Lease for life the Lease is determined by the death of Cestuy que use and the Lessee is become Tenant at sufferance but a Lease for life by Tenant for life at the Common Law is not determined by the death of Lessee for life who was Lessor and his Tenant is tenant for life and not at sufferance as in the Case before and the first Lessor ought to avoid it by entrie Br. Feoffments to Uses 48. A Recovery by Cestuy que use in tail or in fee is ended by his death By these Cases appears a main difference betwixt the validitie of a Feoffment by Cestuy que use and the Feoffment at the Common Law The Statute of 27 H. 8. of Uses doth not execute Uses which are in abeyance C. 1. part Chudleigh's Case 9 H. 6. by the Common Law the Devise to an Enfant in ventre samier is good but by the Statutes of 32 and 34 H. 8. of Wills such a Devise is not good for the Statute Law doth not provide for the putting of lands in abeyance By the Statute of 1 R. 3. All Feoffments and Releases c. shall be good and effectual to those to whom they are made to their uses And this Feoffment in our Case was not made to a man in Nubibus Cestuy que use by this Statute of 1 R. 3. makes a lease for years the remainder over to the right heirs of I. S. the remainder is not good for the Statute doth not put it in abeyance for the remainder ought to be limited to one in esse 21 H. 8. cap. 4. giveth power to Executors to sell that Executor who proveth the Will shall sell and when he selleth if he have any right to the land the right of the said Executor is not gone by that Statute So if Commissioners upon the Statute of Bankrupts sell the Lands of the Bankrupt and one of the Commissioners hath right to the land so sold his right is not extinct And so in this Case the Statute limits what shall pass Upon the Statute of â—3 Eliz. cap. 4. which makes the lands of Receivers liable for their debts if the King selleth the right of the Accomptant passeth but not the Kings right 17 E. 3. 60. An Abbot having occasion to go beyond the Seas made another Abbot his Procurator to present to such Benefices which became void in his absence That Abbot presents in the name of him who made him Procurator to one of his own Advowsons the right of his own Advowson doth not pass but yet it is an usurpation of the Abbot which went beyond sea to that Church What is the nature of this right All rights are not giâ—en away by Feoffments at the Common Law Lit. 672. Land is given unto husband and wife in tail the husband maketh a Feoffment and takes back an Estate to him and his wife both of them are remitted Which Case proveth that the husband hath left in himself a right notwithstanding the Feoffment 41 E. 3. 17. 41 Ass 1. John at Lee's Case So at the Common Law a Feoffment doth not give away all the right This right doth stick so fast in the issue as the Statute of West 2. cap. 1. can back it unto him 2 E. 3. 23. 22 E. 3. 18. At the Common Law if Tenant in tail had offered to levie a fine the Judges ought not to receive it but ought to have refused it if it had appeared unto them that the Conusor was Tenant in tail the same was before the Statute of 4 H. 7. which gave power to Tenant in tail to levie a fine for the Statute of West 2. Cap. 1. saies Quod finis sit nullus 2. E. 2. age 77. 2 E. 3. 33. 3 E. 3. 1. 24 E 3. 25. If Donee in tail levieâ—h a Fine yet there is no remedie against his Tenant for he shall not be compelled to attorn for that the right is in the Donor â— E. 2. Avowry 181. 48 E. 3. 8. Avowry was made upon the Donee in tail notwithstanding that he made a Feoffment and Avowry is in the realtie and right 4 E. 3. 4. 4 H. 6. 28. 10 H. 7. 14. In a Replevin ancient Demesne is a good plea because the Avowry is in the realtie The Donor shall know for homage upon the Donee after that the Donee hath made a Feoffment 7 E. 4. 28. the Donee shall do homage And Litt. 90. saith That none shall do homage but such as is seised in his own right or in the right of another 2 E. 2. Avowry 85. 7 E 54. 28. 15 E. 4. 15 Gard. 116. the issue shall be in Ward notwithstanding a Feoffment by Tenant in tail Com. 561. Tenant in tail maketh a Feoffment yet the right of the tail doth remain in the Tenant in tail 21 H. 7. 40. Tenant in tail of a Rent grants the same in Fee if an Ancestor collateral releaseth with Warranty the same bindeth the Tenant in tail There is a common Rule That a Warranty doth not bind when a man hath not a right The Cases cited in C. 1. part Albonies Case where Feoffments give Rights I agree Barton and Ewers Case A man made a Feoffment of Land of which he had cause to have a Writ of Error he gave away his Writ of Error by the Feoffment I agree all those Cases for that is in Cases of Feoffments at the Common Law but in our Case the Feoffment is by the Statute of 1 R. 3. In our Case there is Jus habendi possedendi recuperandi It is like unto a plant in Winter which seemeth to be dead yet there is in it anima vegitativa which in due time brings forth fruit So the right in our Case is not given away nor is it in abeyance
then the tender is good But if he be not there but at another place the notice is sufficient Dodderidge The Law requires certainty in a Declaration and the matter cannot be taken by intendment so we ought to have a certainty set forth otherwise no certain Judgment can be given It was adjourned for Dodderidge and Haughton Justices were against Ley Chief Justice But as I have heard the Case was afterwards adjudged for the Plaintiffe There quaere the Record of the Judgment Trin. 21 Iacobi in the Kings Bench. 425. A Man made a Lease for life and covenanted for him and his heirs That he would save the Lessee harmless from any claiming by from or under him The Lessor dyed and his wife brought a Writ of Dower against the Lessee and recovered and the Lessee brought an Action of Covenant against the heir And it was adjudged against the heir because the wife claimed under her husband who was the Lessor But if the woman had been mother of the Lessor who demanded Dower the Action would not have layen against the heir because she did not claim by from or under the Lessor And so it was adjudged v. 11. H. 7. 7. b. Trin. 21 Iacobi in the Kings Bench. 426. SNELL And BENNET'S Case A Parson did contract with A. his Executors and Assigns That for ten shillings paid to him every year by A. his Executors and Assigns that he his Executors or Assigns should be quit from the payment of Tythes for such Lands during his life viz. the life of the Parson A. paid unto the Parson ten shillings which the Parson accepted of And made B. an Enfant his Executor and dyed The mother of the Enfant took Letters of Administration durante minori aetate of the Enfant and made a Lease at Will of the Lands The Parson libelled in the Ecclesiastical Court for Tythes of the same Lands against the Tenant at Will who thereupon moved for a Prohibition Dodderidge During the life of the Parson the Contract is a foot but the Assignee cannot sue the Parson upon this Contract yet he may have a Prohibition to stay the suit in the Ecclesiastical Court and put the Parson to his right remedy and that is to sue here This agreement is not by Deed and so no Lease of the Tythes The Parson shall have his remedy against the Executor for the ten shillings but not against the Tenant at Will and the Executor hath his remedy against the Tenant at Will Crook 21 H. 6. A Lease of Tythes without Deed is good for one but not for more years v. 16 H. 7. And afterwards a Prohibition was granted Trin. 16 Jacobi in the Kings Bench. 427. PHILPOT and FEILDER'S Case THe Parties are at issue in the Chancery and a Venire facias is awarded out of the Chancery to try the issue and the Venire facias was Quod venire facias coram c. duodecim liberos legales homines de vicineto de c. quorum quilibet habeat quatuor lib. terrae tenementorum vel reddituum per annum ad minus per quos rei veritas melius sciri poterit c. And it was moved in arrest of Judgment That the Venire facias is not well awarded for it ought to be Quorum quilibet habeat quadraginta solidos terrae tentorum vel reddit per an ad minus according to the Statute of 35 H. 8. cap. 6. which appoints that every one of the Jurors ought by Law to expend forty shillings per annum of Freehold and it ought not to be quatuor libras terrae c. according to the Statute of 27 Eliz cap. 6. which Statute of Elizabeth doth not speak of the Chancery but only of the Kings Bench Common-Pleas and the Exchequer or before Justices of Assise Before the Statute of 35 H. 8. no certain Land of Jurors was named in the Venire facias but since the Statute of 35 H. 8. it was quadragint solidos untill the said Statute of 27 Eliz. and now it is quatuor libras in the Kings Bench Common-Pleas and Exchequer It was adjourned At another day the Case was moved again That the Venire facias ought to be 40 solidos c. according to the Statute of 35 H. 8. cap. 6. And 10 H. 7. 9. 15 were vouched That if a Statute appoint that the King shall do an act in this form the King ought to do it in the same form and manner So if a Letter of Attorney be to make a Bill in English and the same is made in Latine it is not good although it be the same in form and matter Cook lib Entries 578. Waldrons Case is That in the Chancery the Venire facias was but 40 but that Case was between 35 H. 8. and 27 Eliz. cap 6. Dodderidge and Haughton Justices It is a plain case For the Venire facias ought to be according to 35 H. 8. cap. 6. because the Statute of 27 Eliz. cap. 6. speaks nothing of the Chancery Quod nota Trin. 21 Iacobi in the Kings Bench. 428. HEWET and BYE'S Case IN an Ejectione Firme of a house in Winchester the Ejectment was laid to be of a house which was in australi parte vici Anglice the High-street Ley Chief Justice If it had been ex australi parte vici then the South part had been but a Boundary but here it is well laid Then it was moved That the Venire facias is Duodecim liberos legales homines de Winton and doth not say of any Parish in Winton But notwithstanding it was holden good For Dodderidge Justice said That it is not like unto Arundels Case C. 6. part 14. For there the Offence was laid to be done in paroechiae Sanctae Margaret de Westminster therefore the visne ought to be of the Parish but in this case it being laid generally in Winton it is sufficient that the visne come out of Winton Judgment was given for the Plaintiffe Trin. 21 Iacobi in the Kings Bench. 429 WATERER and MOUNTAGUE'S Case A Man made a Lease for six years and the Lessor covenanted That if he were disposed to lease the said lands after the expiration of the said term of six years that the Lessee should have the refusal of it The Lessee within the six years made a Lease thereof to J. S. for 21 years Dodderidge Haughton and Ley Chief Justice The Covenant is not broken because it is out of the words of the Covenant But Dodderidge said Temp. E. 1. Covenant 29. The Lessee covenanted to leave the houses trees and woods at the end of the term in as good plight as he found them and afterwards the Lessee cut down a tree that in that case the Covenant was broken and the Lessor shall not stay untill the end of the term to bring his action of Covenant because it is apparant that the tree cannot grow again and be in as good plight as it was when he took the Lease Trin. 21
Iacobi in the Kings Bench. 430. OWFIELD against SHIERT A Writ of Error was brought to reverse a Judgment given in an Action of Debt The Action of Debt was upon a Concessit solvere c. pro diversis summis pecuniae and the opinion of the Court was That Debt doth not lie upon Concessit solvere pro diversis summis c. because it is incertainty But the same Term in another Case viz. Stacies Case That by Custom of London it was holden that Debt doth lie upon a Concessit solvere pro diversis summis And it was then said That in an Action upon the Case it was good to say That in consideration de diversis summis Concessit solvere and so it hath been adjudged Trin 21 Jacobi in the Kings Bench. HAWKSWITH and DAVIES Case Intratur 431. Pasch 19. Jur. Rot. 83. LEssee for years of divers parcels of Lands reservant Rent and for not payment a reentrie The Lessee assignes part of the Land to A. and other part to B. and keeps a part to himself afterwards the Lessee levies a Fine of all the Lands unto the use of the Conusee and his heirs afterwards the Lessee paies the Rent for the whole unto the Conusee and afterwards the Rent becomes behind and the Conusee enters for the Condition broken and made a Lease to the Plaintiffe who thereupon brought an Ejectione firme and all this matter was found by special Verdict and it was moved that by the assigning of the Lessee of part of the lands to one and part to another that the Condition was gone and destroyed but notwithstanding it was agreed by all the Justices that the Condition did remain and was not gone nor destroyed And they said that this Case was not like unto Winters Case in Dyer 308 309. where the Lessor did assigne over part of the Reversion to one and part unto another for that in that Case the Lessor by his own Act had destroyed the Condition but in this Case it is the Act of the Lessee and therefore no colour that the Condition be gone and destroyed And so it was resolved for the Plaintiffe and Judgment given accordingly Trin. 21 Jacobi in the Kings Bench. 432. KILLIGREW and HARPER'S Case HArper in consideration of 100l. doth assume and promise to Killigrew That the Lady Weston and her Son shall sell to Killigrew such Lands Proviso that Killigrew such a day certain pay to the said Lady and her Son 2000l At which time the Lady and her Son shall be ready to assure and convey to Killigrew the said lands And for want of payment of the said 2000l at the said day that Killigrew shall lose the said 100l. and that the Contract for the Land shall be void Killigrew brought an Action upon the Case sur Assumpsit against Harper and all this matter was found by special Verdict Athow Serjeant argued that the Action would lie because the Lady and her Son were to do the first act viz. to make the Assurance 22 H. 6. 57. Rent is reserved upon a Lease for years in which are divers Covenants and a Bond is given for the performance of all the Covenants within such Indenture of Lease the Rent is behind the Bond is not forfeited unlesse the Lessor doth make a demand of the Rent because the Lessor is to do the first act viz. to demand the Rent Yelverton contr ' That the Action will not lie The question is Of whose part is the breach The Assumpsit is grounded upon the Consideration and not upon the Promise The Jury find that Killigrew was not ready to pay the 2000l. and that the Lady and her Son were not ready to assure the land The Agreement was for which not time is expressed That the Lady and her Son should convey such lands Then the Agreement was That Killigrew should pay at such a day certain at which day the Lady should be ready c. and if Killigrew made default of the payment of the 2000l. then he was to lose the said 100l. which he gave to Harper to procure the Bargain and also that the Bargain should be void Ley Chief Justice If Killigrew had paid or tendred the 2000l. at the said day and the Lady and her Son had not been ready at that time to have assured the lands Killigrew should have had an Action upon the Case for the 100l. and recovered damages If the Lady had been to have done the first action then the Action would have been maintainable but in this Case Killigrew is to do the first act and therefore the Action will not lie Dodderidge If it had been indefinite then the Assurance and Conveyance is to be before the Payment but here the bargain is to pay the mony first Harper promiseth to Killigrew in consideration of 100l. that Killigrew shall buy such lands then comes the time of payment and assurance of the land at that time shall be made Proviso that if he do not pay the 2000l then Killigrew to lose the 100l. and the Contract to be void so there are two penalties so as of necessity the 2000l must first be paid for otherwise how can the Contract be void for not payment For if the Conveyance shall be first made then it was present before the mony paid and so the clause viz. Then the Contract to be void should be of no effect Haughton Justice agreed Chamberlain Justice You have bound your self with a penalty and the bargain ought to be performed as it was made And so being made that the mony should be first paid at which time the conveyance shall be made and for want of payment that Killigrew should lose the 100l. and also the Contract to be void The opinion of the whole Court was against the Plaintiffe that the Action would not lie and so Judgment was given Quod nihil capint per Billam Trin. 21 Jacobi in the Kings Bench. 433. Sir ARTHUR GORGE and Sir ROBERT LANE'S Case AN Action of Debt was brought upon a Bond for not performance of Covenants The Case was Lane did marry with the daughter of Gorge and in consideration of marriage and also of 3000l portion given in marriage by Gorge Lane did covenant That he within one year would make a Jointure of lands within England then of the value of 500l per annum over and above all Reprises to his said wife so as Sir Henry Yelverton and Sir John Walter Councellors at Law should devise and advise In Debt for the breach of these Covenants Lane pleaded That he did inform Gorge of lands which he was determined should be for her Jointure but neither Yelverton nor Walter did devise the Assurance Paul Crook did demur upon the Plea and first shewed That Lane did not give notice to Yelverton and Walter as he ought to have done by law For in this case it is not sufficient to give notice to Gorge but the notice ought to be to the Councellors otherwise how could
by prescription have used to have and dig clay there The first point is found for the Defendant and the last issue is found against the Defendant and damages are given generally All the question is upon the Declaration Coepit asportavit the clay which implies a propertie and interest in the clay to be to the Plaintiffe It is not said that the clay was carried over the land I conceive that the property of the clay is in issue and the Commoner hath nothing to do with that So damages being given to him for that which doth not belong unto him I hold the Judgment to be Erroneous and that it ought to be reversed Dodderidge The Declaration is well enough and of necessity it cannot be otherwise Here the Plaintiffe challengeth nothing but Common In an Action upon the Case there ought to be injurie and damage which is the consequent upon injurie For an Action upon the Case will not lie for an injurie without damage Here Bullen doth not complain for any thing but the loss of his Common which is the first wrong The second wrong is the digging of the pit in the which his cattel may fall and perish The third wrong is for carrying away of six loads of clay over the Common which is a great detriment to the Common to carrie it either by Carts or otherwise and for these three wrongs he concludes his damages ratione cujus he could not have his Common in as ample manner as before he was used to have it and he doth not conclude any damage for the clay Every one of these injuries doth increase the damages and so it would have been if he had left the clay to lie upon the land by the pit for thereby so much Common would have been lost Here he makes himself title only to the Common and these Acts do increase the damages only 2. E. 4. 7 E. 4. Where one was unlawfully and falsly imprisoned and being imprisoned compelled to levie a Fine or make a Feoffment or other Deed. In an Action of false Imprisonment the Jurie gave damages by reason of his restraint of his Liberty and increased them by reason of the levying of the Fine or making the Feoffment or other Deed which he then made The Jurie found that he is not to have any clay and coepit asportavit doth not alter the Case for that is a special Action of trespass And by three of the Justices against Haughton the Judgment given in the Court of Common Pleas was affirmed Trin. 21 Iacobi in the Kings Bench. 438. CAlthrope Councellor cited this Case to have been adjudged 25 Eliz. The husband seised in the right of his wife of Copyhold Land made a Lease for years and it was holden by the Court then That by the death of the husband the forfeiture of the Copyhold was purged and that the wife should have the land again notwithstanding this forfeiture by the husband by making a Lease for years without Licence And the Court seemed to allow of the said Case to be Law And afterwards this very Term the like Case came in question in this Court betwixt Severn and Smith where in an Ejectione firme a special Verdict found That a Copyholder seised in the right of his wife made a Lease for years and it was a question whether it were a forfeiture of the inheritance of the wife Hitcham Serjeant said it was no forfeiture Dodderidg Justice took this difference Where a Feme Sole is a Copyholder and she takes a husband who makes a lease for years without licence the same is a forfeiture because it is her folly to take such a husband as will forfeit her Land But where a Copyhold is granted to a Feme Covert and the husband maketh a Lease without Licence in such case it is no forfeiture and so in the Case of a Feme Lessee for life at the Common Law against Whitinghams Case C. 8. part 44. It was adjourned Trin. 21 Iacobi in the Kings Bench. 439. NOte It was the opinion of all the Justices and so declared That if the Plaintiffe in an Ejectione firme doth mistake his Declaration That the Defendant in such Case shall have his Costs of the Plaintiffe by reason of his unjust vexation Trin. 21 Iacobi in the Kings Bench. 440. FOur several men were joyntly Indicted for erecting and keeping of four several Inns in Bathe It was moved that the Indictment was insufficient because the offence of the one is not the offence of the other like unto the Case in Dyer 19. Where two joyn in an Action upon the Case for words 't is not good but they ought for to sever in their Actions because the wrong to the one is no wrong to the other Dodderidge Iustice One Indictment may comprehend several offences if they be particularly laid and then it is in Law several Indictments It may be intended that the Inns were lawfull Inns for it is not laid to be ad nocumentum and therefore not punishable but if they be an anoyance and inconvenient for the Inhabitants then the same ought particularly to appear otherwise it is a thing lawfull to erect an Inn. An Action upon the Case lyeth against an Inn-keeper who denies lodging to a Travailer for his money if he hath spare lodging because he hath subjected himself to keep a common Inn. And in an Action upon the Case against an Inn-keeper he needeth not to shew that he hath a Licence to keep the Inn. If an Inn-keeper taketh down his Signe and yet keepeth an Hosterie an Action upon the Case will lie against him if he do deny lodging unto a Travailer for his money but if he taketh down his Signe and giveth over the keeping of an Inn then he is discharged from giving lodging The Indictment in the principal case is not good for want of the words ad Nocumentum Haughton and Ley Iustices argreed Ley If an Indictment be for an Offence which the Court ex Officio ought to take notice to be ad Nocumentum there the Indictment being general ad Nocumentum contra Coronam dignitatem is sufficient without shewing in what it is ad Nocumentum But for Inns it is lawfull for to erect them if it be not ad Nocumentum c. and therefore in such Indictments it ought to be expressed that the erecting of them is ad Nocumentum c. and because in this Case there wants the words ad Nocumentum the Indictment was quashed Vi. The Lord North and Prat's Case before to this purpose Trin. 21 Iacobi in the Kings Bench. 441. BRIDGES and NICHOLS's Case THey were Indicted for the not repairing of such a Bridg and the Indictment was debent solent reparare pontem c. It was moved that the Indictment was insufficient because it is not alledged in the Indictment that the the Bridg was over a Water and no needfull that it be amended Secondly It did not appear in the Indictment that
the Kings Bench by the opinion of the whole Court the Judgment was reversed Trin. 21 Jacobi Intratur Hill 20 Jac. Rot. 137. in the Kings Bench. 444. KITE and SMITH's Case ONe Recovered by Erronious Judgment and the Defendant did promise unto the Plaintiffe That if he would forbear to take forth Execution that at such a day certain he would pay him the debt and damages And Action upon the Case was brought upon that Promise And now it was moved by the Defendants Councel That there was not any Consideration upon which the Promise could be made because the Judgment was an Erronious Judgment It was adjourned But I conceive that because it doth not appear to the Court but that the Judgment is a good Judgment that it is a good Consideration Otherwise if the Judgment had been reversed by a Writ of Error before the Action upon the Case brought upon the Promise for there it doth appear judicially to the Court that the Judgment was Erronious Trin. 21 Jacobi in the Kings Bench. 445. TOTNAM and HOPKIN's Case AN Action upon the Case was brought upon an Assumpsit And the Plaintiff did declare That in Consideration of c. the Defendant 1 Martii did promise to pay and deliver to the Plaintiffe 20 Quarters of Barley the next Seed-time Upon Non Assumpsit pleaded it was found for the Plaintiffe It was moved for the Defendant That the Plaintiffe ought to have shewed in his Declaration when the Seed-time was which he hath not done But it was answered That he needeth not so to do because he brings his Action half a year after the Promise for not payment of the same at Seed-time which was betwixt the Promise and the Assumpsit Dodderidge Justice If I promise to pay you so much Corn at Harvest next If it appeareth that the Harvest is ended before the Action brought it is good without shewing the time of the Harvest for it is apparent to the Court that the Harvest is past And here the Action being brought at Michaelmas it sufficiently appears that the Harvest is past And Judgment was given for the â—laintiffe Trin. 21 Iacobi Iatratur Hill 1â— Iacobi Rot. 652. inter Hard Foy in the Kings Bench. 446. KELLAWAY's Case IN an Ejectione Firme brought for the Mannor of Lillington upon a Lease made by Kellaway to Fey It was found by a special Verdict That M. Kellaway seised of the Mannor of Lillington in Fee holden in Soccage did devise the same by his Will in writing in these words viz. For the good will I bear unto the name of the Kellawayes I give all my Lands to John Kellaway in tail the Remainder to my right Heirs so long as they keep the true intent and meaning of this my Will To have to the said John Kellaway and the heirs of his body untill John Kellaway or any of his issues go about to alter and change the intent and meaning of this my Will Then and in such case it shall be lawfull to and for H. Kellaway to enter and have the Land in tail with the like limitation And so the Lands was put in Remainder to five several persons the Remainder to the right heirs of the Devisor M. Kellaway dyed without issue John Kellaway is heir and entred and demised the same to R. K. for 500 years and afterwards granted all his estate to Hard. Afterwards John Kellaway did agree by Deed indented with W. K. to levy a Fine of the Reversion to W. and his heirs H. Kellaway entred according to the words of the Proviso in the Will and made the Lease to Foy who brought an Ejectione Firme against Hard. And whether H. Kellaway might lawfully enter or no was the Question It was objected That in the Case there is not any Forfeiture because the Fine was without proclamations and so it was a Discontinuance only The first Question is If the Remainder doth continue The second is If it be a Perpetuity or a Limitation John Kellaway is Tenant in tail by Devise untill such time as John Kellaway or any of his issues agree or go about to alter or change the estate tail mentioned in the Will with Proviso to make Leases for 21 years 3 lives or to make Jointures Then his Will is That it shall be lawfull for H. K. to enter and to have the Land with the same limitations If it be a Perpetuity then it is for the Plaintiffe but if it be but a Limitation then it is for the Defendant The Fine was levied without proclamations and H. K. entreth for the Forfeiture Damport It is no Perpetuity but a Limitation which is not restrained by the Law as Perpetuities are Untill such time as c. shall discontinue c. The Jury find an Agreement by Indenture The act which is alleadged to be the breach is Conclusivit agreavit not to levy a Fine with proclamations but to levy a Fine without proclamations which is but a Discontinuance Yelverton If the Fine had been with proclamations then without doubt he in the Remainder during the life of him who levied it had been barred The Devise was To have to them and to the heirs of their bodies so long as they and every of their issues do observe perform fulfill and keep the true meaning of this my Will touching the entailed Lands in form following and no otherwise And therfore I M. Kellaway do devise unto John Kellaway the issue of his body the Remainder c. â—o have to the said John Kellaway and the issue of his body untill he or any of his issue shall go about to conclude do or make any act or acts to alien discontinue or change the true meaning of this my Will That then my Will is and I do give and bequeath to H K in tail And that it shall be lawfull for him the said H. K. or his issue to enter immediately upon such assent conclusion or going about to conclude c. And that H. K. and his issue shall leave it untill he or any of them go about c. C. 9 part Sundayes Case 128. where it was resolved That no Condition or Limitation be it by act executed or by limitation of an Use or by a Devise can bar Tenant in tail to alien by a common Recovery v. C. 3. part acc The Case was not resolved but it was adjourned to another day to be argued and then the Court to deliver their opinions in it Trin. 21. Intratur Trin. 20 Jacobi Rot. 811. in the Kings Bench. 447. KNIGHT's Case IN this Case George Crook said That Land could not belong to Land yet in a Will such Land which had been enjoyed with other might pass by the words cum pertinaciis As where A. hath two houses adjoyning viz. the Swan and the Red-Lyon and A. hath the Swan in his own possession and occupieth a Parlour or Hall which belongs in truth to the Red-Lyon with the Swan-house and then leaseth the Red-lyon
Commission was to A. B. and the Sheriff cuilibet eorum The Supplicavit was delivered to the two Iustices who took a Recognizance from L. but M. N. could not be found The Sheriffe was afterwards out of his Office because his year of Sheriffwick expired The new Sheriffe made a Retorn That M. N. non sunt inventi in balliva mea And also Retorned That A. B. had taken a Recognizance of L. as appeareth per quandam schedulam huic annex in haec verba c. This Case was argued and 21 H. 7. 20. 21. vouched That if the Writ be first delivered to the Sheriffe then he only is for to execute the Writ and retorn the Supplicavit But if it be first delivered to the Iustices then they ought to execute it and retorn it 9 E. 4. 31. A Supplicavit is a Iudicial Writ and cannot be executed by a Deputy but a Ministerial Writ may be executed by a Deputy In this case the succeeding Sheriffe did retorn the Writ and it was not directed unto him And the same being delivered to the Chancellor whether the same should be a Record or not was the Question 4 H. 7. 17. Debt was brought upon an Obligation The Kings Serjeant prayed the Bond for the King because that the Plaintiffe was a person Outlawed Bryan Iustice You ought to bring a Writ of Detinue to recover the Bond which is a legal course for the King And so in this case here is no Record for the King because the Recognizance comes not in by a legal course viz. a lawful Retorn for it was retorned by the new Sheriffe and also by him who did not execute the Commission Heath said cleerly There was no Record for the King and vouched 21 H. 7. 20 21. Note the whole Case there 1. Where it is said In casu superiori ipse Justiciarius qui primo illud breve de Supplicavit recepit tota executione ejusdem Brevis tantummodo tenetur reliqui sociorum suorum tangent dictum Breve exonerentur Justiciarius hanc recipiens nomine suo proprio illud retornabit And in our Case it was directed to the Sheriffe and Iustices and being delivered to the Iustices the Sheriffe had not to do to make Certificate of it and in this case he is but as a private man This suit is a Scire facias to have Execution upon the said Recognizance A Dedimus potestatem is directed to two and one of them doth execute it the other cannot certifie it for the Execution of it ought to be upon his own knowledge A Record taken by one cannot be certified by another for if it be it is not any Record upon which a Scirefacias can be awarded In our Case the Justices made the Record and the Sheriffe did certifie it Ley Chief Justice When the Recognizance is put to writing or Notes of Remembrance taken of the Recognizance before the Commissioners it is immediately a Record One takes Notes of a Recognizance and dyeth He to whose hands the Notes come may certifie the same for it is a perfect Record by the taking of the Notes of Remembrance But that is to be understood when no Writ is directed to Commissioners but when a Justice takes is In our Case the Sheriffe may retorn the Writ ex officio and also retorn That executio istius brevis patet in quadam schedula annexa And it doth not appear but that the now Sheriffe was at the Execution of this Commission But admit that he was not yet now the Writ being retorned into the Chancery your pleading and taking issue upon another matter hath made it a good Record And therefore I hold that the Judgment ought to be given for the King according to the Verdict Haughton Justice Judgment cannot be for King If the Record doth not come duly into the Chancery according to course of Law it is not any Record upon which there can be any Procution If a Judge take a Fine and dyeth before it be certified a Certiorari ought to be directed to the Executors of the Judge v. 2 H. 7. 10. but the Certiorari ought not to be to a stranger If two Iustices of Peace have Commission to take a Recognizance and one of them taketh it and dyeth the Certiorari must be to his Executors and not to the other Iustice In this Case the Record came into the Chancery by undue course The Commission was several Cuilibet eorum and those who took upon them the Execution thereof are now made Officers by the express words of the Writ and it is not so here retorned and therefore Iudgment ought to be against the King A Dedimus potestatem is directed to four to take a Fine of Lands in several Counties Two of them take it in one County and they certifie it and the two other take it in another County and they certifie it None of the Certificates are good Dodderidge Iustice Iudgment ought to be against the King There are two Questions in the Case 1. Whether the Sheriffe as this Case is may onely make the Retorn 2. Admitting that he cannot but the same being retorned and the Chancery accepting of it and sending it to this Court whether we can damn the Record 1. This is a special Recognizance upon the grievance of the party and by the Kings Commission they are made especial Iudges in this case And when the party who sues delivers the same to the two Justices the Sheriff cannot entermeddle therewith for then the Justices ought to retorn the Recognizance by vertue of that Commission 21 H. 7. 20 21. there the Case is direct in the point That they to whom the Writ is first delivered they only are to execute it and retorn it for they only have power by vertue of the special Commission The Writ was against three and two of them are not to be found The Sheriff cannot retorn Non sunt inventi for the two by force of this Commission and he is not to make his Retorn as a Minister or Officer to the other because the Writ is Judicial If a Challenge be to the Sheriff and Coroners and process is directed to Esliors they are to execute the process as particular Officers by vertue of the Writ and they are to retorn the same and not the Sheriff because their authority is by vertue of a special Writ To the 2. point it hath been said That the Record is in the Chancery and the partie hath pleaded to it to issue and it is now sent into this Court and now fault is found with it but not before Though all this be so yet we cannot accept of it here if it have not due proceedings If process be directed to the Coronors for Challenge to the Sheriff and then a new Sheriff is made against whom there is no cause of challenge yet the Coronors must execute and finish the process and not the new Sheriff for the Law will not endure that Offficers do
pay the money there he shall recover damages besides the dutie Here the Action was brought before the request made and so no damage to the Plaintiff and the Judgment was that the Plaintiff recuperet damna predict viz. the damages laid in the Declaration Dodderidge Justice The Judgment ought to be Consideratum est quod Gleede recuperet damna quae sustinuit and not damna predict which are mentioned in the Declaration and then a Writ is awarded to enquire of the damages quae sustinuit The Judgment was reversed per Curiam Mich. 1 Caroli in the Kings Bench. Rot. 189. 455. TAYLOR and HODSKIN's Case IN an Ejectione firme upon a special Verdict it was found That one Moyle was seised of divers Lands in Fee holden in Socage and having issue four daughters viz. A B C D. A. had issue N. and died And afterwards Moyle devised the said Lands unto his wife for life and after her decease then the same equally to be divided amongst his daughters or their heirs Moyle died and afterwards his wife died and Hodskins in the right of B C D. three of the daughters did enter upon the Lands N. the daughter of A. married F. who entred and leased the Lands to the Plaintiff Taylor Whitfield for the Plaintiff The only point is Whether N. the daughter of A. one of the sisters shall have the fourth part of the lands or not by reason of the word Or in the Will It is apparent in our books C. 10. part 76 the Chancellor of Oxfords Case C. 3. part Butler and Bakers Case That Wills shall be construed and taken to be according to the intent of the Devisor And therefore Br. Devise 39. A devise to one to sell to give or do with at his will and pleasure is a Fee-simple And in our Case if N. shall not take a fourth part the word heirs should be of no effect C. 1. part in Shellies Case All the words in a Deed shall take effect without rejecting any of them and if it be so in a Deed à fortiori in a Will which is most commonly made by a sick man who hath not Councell with him to inform or direct him In this Case the three sisters who were living at the time of the Devise took presently by way of remainder and the word heirs was added only to shew the intent of the Devisor That if any of the three sisters had died before his wife that then her heir should take by discent because her mother had taken by purchase And by reason of the word heirs the heir of A. shall take by purchase and the disjunctive word or shall be taken for and as in Mallories Case C. 5. part A reservation of a Rent to an Abbot or his Successors there the word or shall be taken for and reddendo singula singulis Trin. 7. Jacobi in the Common Pleas Arnold was bound in a Bond upon Condition that he suffer his wife to devise Lands of the value of 400l to her son or her daughter and she devised the Lands to her son and her daughter And it was resolved that it was a good performance of the Condition And there the word or was taken for and And there Justice Warburton put this Case If I do devise all my goods in Dale or Sale it shall be a Devise of all my goods in both places and or shall be taken for and. In this Case the word heirs was not added of necessity for the heir of any of the sisters to take by purchase but only to make the heir of A. to take part of the Lands The Court was of opinion that it was stronger for the Plaintiff to have it or in the disjunctive For they said that if it were and then it would give the three sisters the Fee and not give the heir of A. a fourth part but being or there is more colour that she shall take a fourth part by force of the Devise It was adjourned Trin 2 Caroli Rot 913. in the Kings Bench. 456. ASHFIELD and ASHFIELD's Case THe Case was An Enfant Copyholder made a Lease for years by word not warranted by the Custome rendring Rent The Enfant at his full age was admitted to the Copyhold and afterwards accepted of the Rent The question was Whether this Lease and the acception of the Rent should bind or conclude the Enfant Crawley Serjeant argued That it was a void Lease and that the acception should not bar him It is a ground in Law That an Enfant can do no Act by bare contract by word or by writing can do any Act which is a wrong either to himself or unto another person or to his prejudice In this Case if the Lease should be effectual it were a wrong unto a stranger viz. the Lord and a prejudice unto himself to make a forfeiture of the Inheritance If an Enfant commandeth A. to enter into the land of I. S. and afterwards the Enfant entreth upon A. A is the Disseisor and Tenant and the Enfant gaineth nothing So if A entreth to the use of the Enfant and the Enfant afterwards agreeth to it in this Case here is but a bare contract and an agreement will not make an Enfant a Disseisor No more shall he be bound by a bare Deed or matter in writing without Livery 26 H. 8. 2. An Enfant granteth an Advowson and at full age confirmeth it all is void Br. Releases 49. Two Joynt-Tenants one being an Enfant releaseth to his Companion it is a void Release 18 E. 4. 7. An Enfant makes a Lease without reserving Rent or makes a Deed of grant of goods yet he shall maintain Trespass nay though he deliver the goods or Lease with his own hand the same will not excuse the Trespass nor will it perfect the Lease or make the grant of the goods good If the Contract have but a mixture of prejudice to the Enfant it shall be void ◠Jacobi in the Kings Bench Bendloes and Holydaies Case An Obligation made by an Enfant with a Condition to pay so much for his apparel because the Bond was with a penaltie it was adjudged void If Tenant at Will make a Lease for years he was a Disseisor at the Common Law before the Statute of West 2. cap. 25. 12 E. 4 12. Tenant at Will makes a Lease for years 10 E. 4. 18. 3 E. 4. 17. But if an Enfant be Tenant at will and he maketh a Lease he is no Disseisor In our Case if he had made Livery then I confess it had been a defeisible forfeiture and he mignt have been remitted by his entrie upon the Lord. Farrer for the Plaintiff The Lease is not void but voidable 7 E. 4. 6. Brian 18 E. 4. 2. 9 H. 6. 5. An Enfant makes a Lease for years and at full age accepts of the Rent the Lease is good because the Law saith that he hath a recompence Com. 54. A Lease for years the remainder
removed but if the VVrit of Error want only form but is sufficient for the matter in substance the VVrit shall not abate but the partie may have a new VVrit of Error coram vobis residet c. Trin. 3 Caroli in the Kings Bench. 464. MILL's Case ACtion upon the Case for these words Thou hast Coyned Gold and art a Coyner of Gold Adjudged the Action will not lie for it may be he had Authority to Coyn and words shall be taken in mitiori sensu Pasch 3 Car in the Kings Bench. 465. BROOKER's Case THe question was VVhether the Feoffee of the Land might maintain a VVrit of Error to reverse an Attaindor by Vtglary and the Case was this William Isley seised in Fee of the Mannor of Sundridge in Kent had issue Henry Isley who was Indicted of Felony 18 Eliz. and 19. Eliz. the Record of the Indictment was brought into this Court and thereupon 20 Eliz. Henry Isley was outlawed William Isley died seised Henry Isley entred into the Mannor and Land as son and heir and being seised of the same devised the Mannor and Lands to C. in Fee who conveyed the same to Brooker and Brooker brought a Writ of Error to reverse the Outlawry against Henry Isley Holborn argued for the King and said that Brooker was no way privy to the attaindor of Henry Isley but a meer stranger and therefore could not maintain a Writ of Error And first he said and took exception that he had not set himself down Terre-Tenant in possession Secondly he saith in his Writ of Error That the Mannor and Lands descended to Henry Isley as son and heir when as he was attainted The third exception was That he saith that Henry Isley did devise the Lands and that he could not do because he was a person Attainted Fourthly he said that Brooker was not Tenant so much as in posse 4 H. 7. 11. If it were not for the words of Restitution the partie could not have the mean profits after the Judgment reversed 16 Ass 16. Lessee for years pleaded to a Precipe and reversed it the question was whether he should be in statu quo vi Librum for it is obscure If this Attaindor of Henry Isley were reversed yet it cannot make the devise good For there is a difference betwixt Relations by Parliament which nullifie Acts and other Relations Vi. 3 H. 7. Sentlegers Case Petition 18. The violent Relation of Acts of Parliament If a Bargain and Sale be the Inrollment after will make Acts before good but a Relation by Common Law will not make an Act good which was before void C. 3. part Butler and Bakers Case A gift is made to the King by Deed enrolled and before the enrollment the King granteth away the Land the Grant is void yet the enrollment by Relation makes the Lands to pass to the King from the beginning Admit in this Case that Brooker were Terre-Tenant yet he is not a party privy to bring a Writ of Error to reverse the Attaindor of him who was Tenant of the Land and I have proved That although the Attaindor were reversed yet he hath nothing because the Devise was void and is not made good by Relation It is a rule in our Books that no man can bring a VVrit of Error but a partie or privy 9 E. 4. 13. 22 E. 4. 31 32. 9 H. 6. 46. b. Ass 6 C. 3. part in the Marquiss of Winchesters Case The heir of the part of the mother cannot have the VVrit of Error but the heir of the part of the father may So if erronious Judgment be given in the time of profession of the eldest son and afterwards he is dereigned he shall have the Writ of Error In 22 H. 6. 28. The heir in special taile or by Custom cannot have Error But yet M. 18 Eliz. in Sir Arthur Henninghams Case it was adjudged That the special heir in tail might have a Writ of Error The Baile cannot maintain a Writ of Error upon a Judgment given against the Principal because he was not privy unto the Judgment therefore it shall be allowed him by way of plea in a Scire facias I never find that an Executor can have Error to reverse an Attaindor but for the misawarding of the Exigent Marshes Case was cited C. 5. part 111. Fitz 104. Feoffee at the Common Law could not have an Audita Quaerela in regard he was not privy 12 Ass 8. 41. Keâ—laway 193. There the Terre-Tenant brought a Writ of Error in the name of the heir and not in his own name 24 H. 8. Dyer 1. There it is said That he who is a stranger to the Record shall have Error To that I answer That he in the Reversion and the particular Tenant are but one Tenant for the Fee is demanded and drawn out of him But in the principal Case at Barr no Land is demanded but a personal Attaindor is to be reversed Also there it is put That if the Conusee extend before the day there it is said that the Feoffee may have Error 17 Ass 24. 18 E. 3. 25. Fitz. 22. To that I answer That the Feoffee is privy to that which chargeth him for the Land is extended in his hands and if the Feoffee there should not have a Writ of Error the Law should give him no manner of remedy for there the Conusor himself cannot have Error because the Lands are not extended in his hands Also it is there said that the Feoffee brought a Scirefacias against him who had execution of the Land To that I answer That that is by special Act of Parliament Also there it is said That if the Parson of a Church hath an Annuity and recovereth and afterwards the Benefice is appropriated to a Religious house the Soveraign of the house shall have a Scirefacias I answer That in that Case he is no stranger for that he is perpetual Parson and so the Successor of the Parson who recovered 12 H. 8. 8. There a Recovery was against a Parson and there Pollard said that the Patron might have Error I answer That Pollard was deceived there for it is said before that the Parson hath but an Estate for life and then he viz. the Patron is as a Recoverer who shall have a Writ of Error Dyer 1. But the Parson hath the Fee and therefore Pollard was mistaken as it appeareth by Brook Fauxi fier de Recovery 51. 19 H. 6. 57 Newton A false verdict is had against a Parson the Patron cannot have an Attaint There is a difference if one be partie to the Writ although not partie to the Judgment Error 72. A Quare Impedit was brought by the King against the Patron and the Incumbent and Judgment only was had against the Patron and the Incumbent Parson brought a Writ of Error but if he had not been partie to the Writ he could not have maintained Error So in Attaint the partie to the Writ though not to the Judgment shall
The want of a letter out of a word is out of the Statutes C. 8. part You should have alleadged some place The Statute of 21 Jacobi is not of any Venire facias which is misawarded generally but the Statute helpeth when there are two places and the visne ought to come from both places and the visne comes but from one place and when there is but one place and the visne comes from two places If Enfancie be to be tryed sc If he were at such a time within age it ought to be tryed by the Country This matter is collateral to the first Record and it is a new Record sc upon Error The whole Court was of opinion that it was out of the Statute and a Repleader was granted Whitlock Justice There is no Trial at all for there is no Venire facias at all Dodderidge Justice If the Defendant in Error plead an ill plea he shall replead But if in this Action he had alleadged a place of his Enfancie sc at Dale and the Venire facias had been of Sale there it had been good trial and there he should not replead for that he hath pleaded well but there he shall have a Venire facias de novo Pasch 3 Caroli in the Kings Bench. 470. DAY 's Case DAY was Indicted for erecting of a Cottage It was moved that the Indictment was insufficient for that the words of the Statute of 31 Eliz. cap. 7 are Shall willingly uphold maintain and continue And the Indictment is only That he continued and so wants the words voluntarily upheld according to the Statute 2. It did not appear in the Indictment that it was newly erected for it is only that he continued but not that he erected The Indictment was quashed because being a penal Law it was not pursued Pasch 3 Caroli in the Kings Bench. 471. MAN's Case MAN was Indicted That he fuit adhâ—â—c est a common Barrettor and no place is expressed where he was a Barrettor so as no trial can be Dodderidge Justice If he be a Barrettor in one place he is a Barrettor in all places The Indictment was Per quod he did stir up contentions Jurgia And no place alleadged where he did stir up Jurgia contentions And it was said that in that case the place was very material And so the Indictment was quashed for want of setting forth the place where he did stir up many Contentions Jurgia c. Pasch 3 Caroli in the Kings Bench. 472. GREEN and MOODY'S Case AN Action of Debt was brought for Rent and it was found for the Plaintiff Thyn Serjeant moved in arrest of Judgment and set forth the Case to be That a Lease was made for years to begin at Michaâ—lmaâ— after And the Plaintiff in the Action of Debt for the Rent did declare Virtuâ—e cujus the Lessee did enter and did not shew what day according to Cliffords Case 7 E. 6. Dyer 89. But the Court said It is said in this Case Virtute cujus dimissionis he did enter and was possessed and that must be intended at Michaelmas Alexander and Dyer's Case 33 Eliz. was resolved accordingly And Cliffords Case Dyer 89. is not virtute cujus dimissionis And the Court held a difference betwixt Debt and Ejectione firme Cliffords case was an Ejectione firme but here it is Debt Jones Justice If he did enter before Michaelmas yet Debt will lie for the Rent upon the privity of contract for the Lessee cannot destroy the contract unless he make a Feoffment It was adjudged for the Plaintiff Quaere If when the Lessor in the case which Jones put hath brought his action and recovered when the Lessee hath entred before the day If the Lessor shall put him out as a Disseisor by reason of the Recovery in the action of Debt in which he hath admitted him to be Lessee for years Or if the Lessor after he hath recovered in Debt dyeth whether his heir shall be estopped by the Record to say otherwise then that he is in by the Lease Or whether the Recovery in Debt hath purged the wrong Like unto the Case 14 H. 8. 12. by Carret If one entreth into my lands and claims 20 years therein and I suffer him to continue there and accept of the Rent and afterwards he committeth Waste I shall maintain an action of Waste and declare upon the special matter If one entreth into my Land claiming a Lease for years per Curiam he is a Disseisor and he cannot qualifie his own wrong Dyer 134. Traps case But Sir Henry Yelverton said That I may admit him to be Tenant for years if I accept of the Rent or bring Waste as Carret said 14 H. 4. But he hath not but for years in respect of his claim But I am concluded by acceptance of the Rent or by bringing of the action of Waste So here by the bringing of the action of Debt the Lessor is concluded But Quaere if it shall bind his heir It was conceived it shall because it is by Record the strongest conclusion that is Pasch 3 Caroli in the Kings Bench. 473. SMITH's Case A Lease for years was made of Lands in Middlesex and the Lessor brought Debt in London against the Assignee The opinion of the whole Court was that it was not well brought but the Action ought to have been brought in Midd. Jones Justice Debt for Rent upon the privity of Contract may be brought in another County but if it be brought upon the privity of Estate as by the Grantee of the Reversion or against the Assignee of the Lessee then it ought to be brought in the County where the Land is Quod nota Pasch 3 Caroli in the Kings Bench. 474. CREMER and TOOKLEY's Case AN action of Debt was brought for suing in the Court of Admiralty against the Statutes of 13 R. 2. cap. 5. 15 R. 2. cap. 3. whereby it is enacted That of manner of Contracts Pleas and Complaints arising within the body of the Counties as well by land as by water the Admiral shall in no wise have conusans And the Statute gives damages part to the party and part to the King And the Plaintiff in the action of Debt did declare That the Defendant Tookley did implead Cremer the Plaintiff in the Court of Admiralty And in his Declaration set forth That one Mullâ—beck was Master of a Ship c. and that the Contract was made in London And that Tookley the Defendant did force the Plaintiff to appear and prosecuted the suit upon the Contract in the Admiral Court And by special Verdict it was found That a Charter-party was made betwixt Mullibeck and Cremer at Dunkirk And that Tookley did prosecute Cremer in the Admiral Court by vertue of a Letter of Attorney and so that he as Attorney to Mullibeck did prosecute the suit there The Case was argued by Andrewes for the Plaintiff There are two points The first upon the Jurisdiction of the Admiralty the Contract
and for these causes he prayed Judgment for the Defendant Observe Reader the Argument of Calthrope he doth not speak to the point where part of the thing or Contract is upon the Sea and part upon the Land as it was urged by Andrews who argued on the other side The Case was adjourned Pasch 3 Caroli rot 362. in the Kings Bench. 475. IT was cited to be adjudged That if a man purchase the next Avoidance of a Church with an intent to present his son and afterwards he present him that it is Symony within the Statute Pasch 3 Caroli in the Kings Bench. 476. SUTTON the Chancellor of Gloucester's Case IN the Case of Sutton who was Chancellor of Gloucester and put out of his place for insufficiency in the Ecclesiastical court Trotman moved for a Prohibition to the Spiritual Court and said that the Bishop had power to make his Chancellor and he only hath the Examination of him and the allowance of him as it is in the Case of a Parson who is presented to the Bishop and said that if his sufficiency should be afterwards reexamined it would be very perilous Doddridg Justice If an Office of Skill be granted to one for life who hath no skill to execute the Office the grant is void and he hath no Frank-tenement in it A Prohibition is for two causes First to give to us Jurisdiction of that which doth belong unto us And secondly when a thing is done against the Law and in breach of the Law then we use to grant a Prohibition Jones Justice Brook had a grant of the Office of a Herald at Arms for life and the Earl Marshal did suspend him from the execution of his Office because he was ignorant in his profession and full of Error contrary to the Records and it was the opinion of the Justices that because he was ignorant in such his Office of Skill that he had no Freehold in the Office In the Principall Case the Prohibition was denyed And afterwards Sutton was put out of his Office by Sentence in the Spiritual Court for his insufficiency Pasch 3 Caroli in the Kings Bench. 477. SYMM'S Case TWo men having speech together of John Symms and William Symms one of them said The Symmses make Half-crown peeces and John Symms did carrie a Cloak-bag full of clippings And whether the Action would lie was the Question because it was incertain in the person For he did not say these Symmses but The Symmses Like unto the Case where one Farrer being slain and certain persons being Defendants in the Star-Chumber one having speech of them said These Defendants did murder Farrer and it was adjudged that the Action would not lie for two causes First because the words These was uncertain in the person And secondly it was incertain in the thing For it might be that they had Authority to do it as in Mills Case 13 Jac. in the Kings Bench Thou hast Coyned Gold and art a Coyner of Gold Thirdly a Cloakbag of clippings that is also uncertain for it might be clippings of Wooll or other things or it might be clippings of Silver from the Goldsmith For the Goldsmith that maketh Plate maketh clippings And fourthly It is not shewed any certain time when the words were spoken And for these causes it was adjudged that the Action would not lie Pasch 3 Caroli in the Kings Bench. 478. WHITTIE and WESTON'S Case AN Action of Debt was brought upon the Statute of 2 E. 6. and the Plaintiff declared That at the time of the Action brought he was Parson of Merrel and that Weston the Defendant did occupie such Lands and sowed them with corn Anno 21 Jac. and that he did not fet forth his Tythe-corn c. The Defendant pleaded in barr of the Action That W. W. Prior of the Hospital of St John of Jerusalem was of the Order of Hospitalers c. and that he held the said Lands free from the payment of Tythes and that the Priory came by the Statute of 32. H. 8. to the King By vertue of which Statute the King was seised thereof and that the same descended to Queen Elizabeth who granted the Lands unto Weston to hold as amply as the late Prior held and that he was seised of the Lands by vertue of that grant Et propriis manibus suis excolebat Upon this Plea the Plaintiff did demurr in Law Noy argued for the Plantiff There are three points in the Case First If these Lands the possessions of the Hospitalers of St John which they held in their own hands were discharged of Tythes Secondly If there be any thing in the Statute of 32 H. 8. by which the Purchasor of the King should be discharged Thirdly Admitting that it shall be a discharge if the Defendant hath well entitled himself to such discharge or Priviledg First it is not within the Statute of 31 H. 8 cap. 13. for that Statute did not extend to the Order of St John Secondly the Statute of 31 H. 8. cap. 13. doth not discharge any but what was then dissolved Thirdly The Statute of 32 H. 8 cap. 24. gives the possessions of the Hospitalers of St Johns to the King and not the Statute of 31 H. 8. Note that the Defendant did recite the branch of the Statute of 31 H. 8. cap 13. That as well the King his heirs and successors as all and every such person and persons their heirs and assignes which have or hereafter shall have any Monasterie c. or other Religious or Ecclesiastical houses or places shall hold c according to their Estates and Titles discharged and acquitted of the payment of Tythes as freely and in as large and ample manner as the said Abbots c. had or used Also he recited the Statute of 32 H. 8. cap. 7 which Enacts that none shall pay Tythes who by Law Statute or Priviledg ought to be discharged The Statute of 31 H. 8. recites that divers Abbies c. and other Religious and Ecclesiastical houses and places have been granted and given up to the King The Statute enaâ—ts that the King shall have in possession for ever all such late Monasteries c. and other Religious houses and places c. And also enacts that the King shal have not only the said Monasteries c. but also all other Monasteries c. and all other Religious and Ecclesiastical houses which hereafter shall happen to be dissolved suppressed renounced relinquished forfeited given up or by any other means come to the King and shall be deemed adjudged vested by Authority of this present Parliament in the very actual possession and seisin of the King for ever in the state and condition they now be Vi. The Statute And shall have all priviledges c. in as ample manner and form as the late Abbots c. had held or occupied c. The Question then is Whether the men of the Hospital of St John at Jerusalem are intended to be within the
by vertue of the Act of 31 H. 8. A Feoffment in Fee is made unto the use of A. in Tail he hath the Use by the Statute of West â— cap. 1. Now when the Statute of 27 H. 8. cap. 10. came he hath the possession by force of that Act viz. of 27 H. 8. and not by force of the Statute of West 2. If the King be not in by the Statute of 3 H. 8. then he shall not have every of the Priviledges which the Act of 31 H. 8. giveth C. 2. part The Bishop of Canterburies Case The Colledg of Maidstone was Religious but not Ecclesiastical and it was adjudged that the Purchasors of the Lands of the said Colledg were not discharged from the payment of Tythes because the Colledg was not Ecclesiastical but Religious only and Religious and not Ecclesiastical came not to the King by the Statute of 31 H. 8. 18 Jacobi in the Common Pleas Wrights Case The Priory of Hatfield being of small value viz. not having Lands of the value of 200l per annum was dissolved by the Statute of 27 H. 8. and the Lands were not Tythe-free in the hands of the Purchasors because the Priory came not to the King by the Statute of 31 H. 8. and yet they were Tythe-free in the hands of the Prior himself The second point upon the Statute of 32 H. 8. The words are That the King shall have all Rights Interests and Priviledg as it was in the hands of the Abbots Priors c. It is objected To be free from payment of Tythes is a Priviledg I answer That neither Right Interest nor Priviledg do free him from the payment of Tythes First there is no discharge of Tythes by the word Interest in the Statute for that is plain Then the question is if the word Priveledg will discharge the Lands from the payment of Tythes and if that word would have sufficed to have discharged the Tythe what need was there of the special Clause to discharge Tythes The Statute of 27 H. 8. dissolves Chaunteries and there it is said That the King shall have and enjoy c. and there also all Priviledges are given then the Statute of 1 E. 6. came and gave all Chauntries to the King and there the word Priviledg was not in the Act yet by those words the Lands were not discharged from the payment of Tythes The Statute of 31 H. 8. is Conditions and Rights of Entrie yet there was another Act made to give Conditions to the King But admit that the King himself be discharged yet his Patentees are not discharged The Priviledg was personal and personal Priviledges are not transferrable 35 H. 6. 56. A Statute dissolveâ— the Templers and gives the Lands to the Hospitalers to hold by the same service as the Templers did which was Frankalmoign yet the Grantee held by Fealty for that Frankalmoign is a personal priviledg and cannot be transferred by general words The King it's true shall have the priviledg for he is a priviledged person for of his goods he shall not pay Tythes if he do not grant them over and the Grants prove That unless he had granted them he should have paid no Tythes The Statute of 31 H. 8. sayes All Conditions which the Abbots c. have yet untill the Statute of 32 H 8. no Purchasor could take advantage of a Condition Hill 44. Eliz. in the Common Pleas Rot. 1994. Spurlings Case The Purchasors of Lands of the Hospital of St Johns of Jerusalem were not priviledged from the payment of Tythes Pasch 8. Jacobi in the Common Pleas Vrry and Bowyers Case In a Prohibition it was holden by Cook and Nichols That the Purchasor of St Johns of Jerusalem should pay Tythes but Winch and Warburton cont 18 Jacobi in the Common Pleas All the Judges but Warburton held that the Purchasor should pay Tythes 10 Eliz. Dyer There it doth not appear whether they were of the Order of Templers or Cistertians The third point in this Case The Defendant doth make no title to the Discharge for he hath not averred that the Priory were Ecclesiastical persons If a man plead that A. is professed the Court cannot take notice of it that he is a dead person in Law But if he saith that he was of such an Order he ought to set forth of what Rule the Order is Secondly The manner of their discharge was when they did Till and sow their Lands propriis sumptibus manibus If they grub up Roots and make the Lands fit for Tillage but if their Tenants sow the Lands they shall pay Tythes for they had the priviledg in respect they should not be idle unless all these do concur they shall pay Tythes viz. plough sow reap and carrie the Corn. These Priviledges are to be taken stritly because they are to defeat the Church of her endowment and therefore in this Case the Defendant doth not well entitle himself to the Discharge unless he do shew that he did occupie the Land for one whole year before and that he did plow sow and â—eap the corn But he ought for to have shewed that such time he plâ—â—ed the Land such a time he sowed it and such a time he reaped the 〈◊〉 Otherwise the Court will intend that another man did plow and sow the land and that he only reaped it For if Lessee of the Hospital doth plow the Land and sow it and afterwards doth surrender to the Prior of the Hospital who reaps the same he shall pay Tythe of the same for the Priviledge was granted unto them who were Labourers And the Defendant perhaps might have the Lands to halfs that is to say to have half the Corn growing upon the Lands The pleading is not good When you plead two Bars each Bar must stand of it self and the surplusage of the one Bar shall not help the defect of the other Bar. The word Priviledge in the Act of 32 H. 8. doth not extend to Tythes If it doth yet the Purchasor shall not have the Priviledge Dodderidge Justice The Statute of 32 H. 8. was made because that those of S. Johns of Jerusalem said that they could not surrender their Hospital because they had a Supreme Head over them viz. their great Master the Pope Crawley Serjeant argued for Weston the Defendant The pleading was over-ruled to be good the last day the Case was argued We have well entitled our selves to the Discharge For we have pleaded that we had the occupation of the Lands for one whole year and that Weston the Defendant plowed sowed and reaped the Corn upon the lands at his own costs and charges And the Plaintiff hath not shewed that any other plowed sowed or reaped the same Our title is by prescription which is confessed This Society was erected in the time of King Henry the 1. and it continued untill 32 H. 8. 44 Eliz. in Spurlings case there were two reasons of the Judgment 1. There the Statute of 31 H. 8.
for the Judgment was not given upon the verdict Pasch 25 H. 8. Rot. 25. Plot and his wife against Treventry in a Writ of Error after the Record removed Diminution of the Original was alledged and there it was pretended that the Judgment was given upon another Original and one of the Originals was before and the other after the Judgment and there the Judgment was reversed because it cannot appear to the contrary but that the Judgment was given upon the later Original Trin. 18 Jacobi Rot. 1613. Bowen and Jones's Case In an Action upon the Case brought upon Assumpsit Error assigned was because that no place was limited where the payment should be made The Original was That the promise was in consideration that the Plaintiff did lend to the Defendant so much he at London did promise to pay the same to him again There were two Originals which bore date the same day Judgment was in that Case for the Plaintiff And the Defendant brought a Writ of Error and alledged Diminution of the Original then the other Original was certified The Defendant in the Writ of Error said That the Original upon which the Recoverie was grounded was an Original which had a place certain The Judges did affirm the same to be the true Original which did maintain the Judgment and agree with the proceedings otherwise great mischief would â—ollow George Crook contrarie and recited the Case viz. Hayns brought a Writ of Error against Crouch and the Writ of Error is to reverse a Record upon a Judgment which was given in the Common Pleas The Original which is certified bears date Trin. 18 Jacobi and the Ejectione firme is brought Trin. 18 Jacobi for an Ejectment which is made in September following and now upon this Errour assigned the partie had a Certiorari to remove the Record upon which you alledge Diminution For you say That the Originall upon which the Judgment was given bore date in September 18. Jacobi which was after the Ejectment The bodie of the Record is Trin. 18. Contrary to this Record you say that there was an Originall Mich. 18 Jacobi and so that is contrary to the Record Error 2. upon the Record The Originall is not part of the Record but you ought to assigne Errour in that which is alledged in Diminution 6 H. 7. 4 Fitz. 21 a. To alledge any thing against a Record is void The Ejectment was after the Originall which warrants the Record and it was after the Action brought They alledge that the Originall was not truely certified and that then after an Imparlance an Originall Writ is made to Warrant the Action Jones and Bowâ—ns Case before cited There a vitious Originall was certified and then upon the Complaint of the Defendant the true Originall was certified both were retornable at the same day And in the Case before cited of Plott and Treventris The Originall which was first certified did not bear date according to the Record which was certified But in our Case the last Originall doth not agree with the Record but the first But in the Case of Plott the Judgement was reversed for another Error The Diminution when it stands with the Record shall be allowed but when it differs from the Record then it shall not be allowed The Ejectment was layed after the first Originall purchased which agrees with the Record and after the Action brought Quod nota It was adjuorned till another Terme viz. Mich. 21. Jacobi Trin. 21. Jacobi in the Kings Bench. 489. SOMMERS Case THe Case was between Sommers and Mary his Wife Plaintiffs who Traversed an Office found after the death of one Roberts The parties were at Issue upon one point in the Traverse and it was found against the King Henden Serjeant moved The Office finds That Roberts dyed seised of two Acres in Soccage and four foot of Lands holden in Capite which was alledged Roberts had by Encroachment Sommers and his Wife pleaded That Roberts in his life time did enfeoffe them of one of the Acres Absque hoc that that Acre did discend And for the other Acre they pleaded and entitled themselves by the Will of Roberts Absque hoc that Roberts was seised thereof That I take to be an insufficient Traverse First it is found by the Office That Roberts dyed seised and that the same discended to four Daughters and One of the Daughters is the Wife of Sommers And hee and his Wife traverse the Office and confesse that the Ancestor died seised Absque hoc that the same discended The Traverse is repugnant in it self for if he did Devise it then untill Entry by the Devisee it doth discend but if they had pleaded the Devise only and Entry by force thereof it might have been a good Traverse The Office findes that it did discend to four Daughters and the Wife of Sommers is one of the four Daughters and he and his Wife Traverse the discent and that is not good for one cannot Traverse that which makes a Title to himself 37 Ass 1. The Rule there put is That a Man cannot Traverse the Office by which he is intitled but in point of Tenure he may Traverse it wherewith agrees Stamford Prerogat 61. 62. 42 Ass 23. One came and Traversed an Office and thereby it appeared that Two there had occasion to Traverse it and it was holden that they all ought to joyne in the Traverse Finch Recorder of London contr ' The Office found generally That Roberts had four Daughters and had two Acres and four Foot of Lands and that the same discended to four Daughters Sommers and his Wife Traverse the Office and plead That as to one Acre Roberts made a Feoffment thereof unto them Absque hoc that he died seised thereof 2. That Roberts devised the other Acre to them Absque hoc that the same did discend 5 Eliz. Dyer 221 Bishops Case There it is resolved That a Devise doth prevent a Remitter and then by consequent it shall prevent a Discent 49 E. 3 16. There a Devise did prevent an Escheat to the King As to the four Foot gained by Encroachment which is holden of the King in Capite They traverse Absque hoc that Roberts was seised thereof I agree that where their Title is joynt there all must Traverse but in our Case we Traverse for our selves and deny any thing to be due to the three other Sisters The four Foot of Waste was part of the Mannor of Bayhall and the Venire facias was out of that Mannor and the Towns where the other lands lay 9 E. 4. A. disseises B. of a Mannor and A. severs the Demeasnes from the Services Now B. shall demand the Mannor as in Truth it now is Henden contr ' It is no part of the Mannor of Bayhall for it is encroached out of it therefore the Venire facias ought not to be of the Mannor of Bayhall The Jury finde that he had encroached four Foot Ex vasto Manerii c.
Dodderige Justice the encroachment doth not make it to be no parcell of the Mannor Ley chief Justice it is not layed to be a Disseisin but an Encroachment and therefore it is not so strong as a Disseisin with a Discent but in Right it belongs to the Mannor Tenant in Tail makes a Feoffment to the use of himself and deviseth the Lands to A. the Devise doth prevent the Remitter Haughton Justice the Discent is Traversed The Father dieth seised and hath issue two Sons and that the Lands discended to him the other may say That the Land is borough English and that the Lands discend unto him Absque hoc that they discended to the Eldest Dodderidge Justice Regularly you shall not Traverse the Discent but by the dying seised but in this Case it ought to be of necessity sc â— in case of a Devise the Traverse must be of the Discent for here they cannot traverse the dying seised for if they traverse the dying seised then they overthrow their own Title sc the Devise but here in Case of a Will the partie shall traverse the Discent for he cannot say that it is true that the Lands did discend and that he Devised it c. The heir cannot traverse that which entitles him by Discent but here his Title is by the Devise and not as heir Finch Recorder the Devise is not of the four Foot for if we confess the dying seised of the four Foot which was holden in Capite then we should overthrow our own Devise The Office finds that he died seised of the whole and therefore of the four foot He being never seised we traverse the dying seised thereof and we deny that he ever had it so the Traverse is good without making of us any Title unto it for we desire not to have it Dodderidge Justice If a man deviseth to his heir it is a void Devise for the discent shall be preferred But if one hath Issue four daughters and he deviseth to one of them it is good for the whole Land so devised to her and no part of the Land so devised shall discend to the other the Lands being holden in Socage Ley Chief Justice and the whole Court did agree That they might deny and traverse the four Foot if the Ancestor had no Title unto it and Judgment was given accordingly against the King quod nota Trin. 21 Jac. in the Kings Bench. 490. PAYNE and COLLEDGES Case AN Agreement was made between Payne and Colledg That if Payne being Chirurgion did Cure Colledg of a great Disease viz. A Noli me tangere That then he should have 10l and that if he did not cure him That then for his pains and endeavours Colledg would give him 5l In an Action upon the Case brought by Payne he doth not shew in his Declaration in what place he used his endeavour and Industry And there is a difference where the Plaintiff is to do any thing of Skill and Industry for there he may do the same at several times and in several places and so this Case differs from the Cases in our books 15 H. 6. Accord 1. is expresly in the point There the Defendant pleaded an Accord That if the Defendant by his Industry c. And exception was taken because that he did not shew a place 3 E. 4. 1. Debt brought by a Servant and declares that he was reteined by the predecessor of the Defendant c. and that he had performed his Service c. It was moved in Arrest of Judgment and Exception taken as in our Case because he did not shew where he did the Service for that is issuable and Denly there said That he need not shew the place because he might do it in several places Bridgeman Serjeant contrarie If the issue had been upon a Collateral matter it had been good enough but here the issue is taken upon an endeavour and you ought to alleadg a place for the tryal of it Dodderidge Justice The Jury was from the place where the Agreement was made the verdict will not make good the Declaration although the Jury have found the whole matter of fact for it doth not appear to us That that was the Jury which could try his endeavour The Case of 3 E. 4. of the Servant was to serve him seaven years and there he need not shew any place where he did his Service but only that he obeyed his Master in his Service for the seaven years If the Plaintiff in this Case had shewed but any one place of doing his endeavour in it had been sufficient but here he sheweth no place at all And therefore Judgment was given That Querens nihil Capiat per Billam Trin. 21 Jacobi in the Kings Bench. 491. The Lord ZOUCH and MOORES Case IN an Action of Trespass for cutting down of Trees in Odiham Park in Hampshire It was found by special Verdict That King Henry the eighth was seised of the Mannor and Park of Odiham And by his Letters Patents 33 of his Reign did grant unto Genny the Office of Stewardship of the said Mannor and the Office of Parkership of the said Park with reasonable Herbage and by the same Letters Patents did grant unto him the Mannor of Odiham cum pertinaciis and 100. Loads of Wood excepting the Park the Deer and the Wood for fifty years if he should so long live Then they found That after that Genny did surrender and restore the Letters Patents in the Chancery to be cancelled and that in truth they were cancelled and that the said Surrender was made to the intent to make a new Lease thereof unto Pawlet and that this Lease of 33 H. 8. being surrendred That King Henry the 8. Anno 36. of his Reign reciting the Letters Patents made to Genny to be dated anno 32 H. 8. whereas in truth they were dated 33 H. 8. and that they were surrendred and that the intent of the Surrender was to make a new Lease to Pawlet Did grant the same to Pawlet as before they were granted to Genny excepting as before They further found That King Philip and Queen Mary 5 6 of their Reigns being seised of the said Mannor and Park in jnro Coronae reciting that Henry the 8. anno 36 of his Reign had granted unto Paulet as before omitting the Proviso which was for 50 years if he should so long live and the Exceptions before And reciting that those Letters-Patents were surrendred ea intentione to make a new Lease in forma sequente They in consideration of good service and 200l paid did grant the Office as before and by those Letters-Patents did grant Herbage generally whereas the first Patent was reasonable Herbage And by these Letters-Patents did grant to him the Mannor cum pertinaciis except the grand trees and woods in the Park and Felons goods which were granted by the first Letters Patents for 50 years And here was a Rent reserved and a Proviso that for doing of Waste that the
Letters-Patents should be be void And there was no such Proviso in the first Letters-Patents 27 Eliz. Queen Elizabeth reciting the Letters-Patents of 5 6 Phil. Mary verbatim and truly did grant the Parkership unto Secretary Walsingham and Leased the Mannor unto him with the Appurtenances with power to take 100 loads of wood Excepting the Deer Habendum from the end of the Lease to Pawlet either by surrender or forfeiture for 21 years rendring rent and for not payment a Re-entry Walsingham granted the same to H. who granted to the same to Moor and others Defendants King James anno 1. of his Reign granted the said Mannor and the Offices of Stewardship and Parkership all by one Letters-Patents to the Lord Zouch who thereupon entred Moore entred upon him and cut down the Trees and the Lord Zouch brought the Action of Trespass Sir Henry Yelverton argued for the Plaintiff and said 1. The Lease made unto Pawlet 36 H. 8. is a void Lease in Law 2. The second Lease unto Pawlet made by King Philip and Queen Mary 5 6. is also void in Law 3. The Lease made by Queen Elizabeth to Walsingham anno 27 of her Reign is also void in Law And that the Lease made by King James is good in Law and the Action of Trespass brought by him will well lie The first Lease is void For it is granted upon a false suggestion made by Genny scil a supposed Surrender For the Lease which he did surrender did not bear date 32. but 33 H. 8. and the Surrender to the King was false for the Lease supposed to be surrendred by Genny beareth date 32 H. 8. whereas there was no such Lease made to Genny And therefore both being the suggestions of the party the King was deceived For what Lease Genny had the King could not know but by the suggestion of Genny and upon his information the King was contented to accept of a Surrender which was but a shew of a Surrender The King could not know with what Genny treated him but by his Information and in both the King was deceived For it was not the Kings intent to charge the lands but with one Lease C. 6. part The Lord Shandoe's Case The reason of the Judgment there proves our Case For there all which grew by the Information of the party was true and then the King made a wrong Collection thereupon but that which he collected was not upon the Information of the party And there it was agreed That if in any part the party had mis-informed the King that the whole had been void Dyer 35â— Lessee for 6â— years of the Queen made Lease for 80 years The 60 years expire the Assignee doth surrender unto the Queen his Lease for 80 years ea intentione that the Queen shall make unto him a new Lease for 20 years The Queen reciting that the said Lessee did surrender a Lease for 80 years did grant to him a Lease for 20 years The Lease for 20 years was adjudged void For he did surrender no Lease unto the Queen And there Dyer said That it is all one where the Consideration is false and where the Information is false there and here is but a shew of a surrender And it was not the Queens intent to pass more then she took by the Surrender Henry the 8. recites That Genny hath surrendred up the Patent which bore date 32 H 8. And there was not any such Patent Genny suggested that he had given up the Patent dated 32 H. 8. when he had not any such Patent So the King was deceived in the suggestion A difference hath been taken betwixt Consideration and Information Here the Consideration was Service and Two hundred pounds paid And it was objected That he took here by the Consideration and not by force of the Information But I say that the Information was the ground upon which the Patent was made For it was not the Kings intent to charge the lands with two leases C. 2. part 17. there it is cited That in a Patent of King Henry the 7. four Letters viz. H R. F. H. of the first words were left out intending afterwards propter honorem to be set out with gold but the great Seal was put to the Patent leaving out the said four letters and yet the Patent was adjudged good being referred to the Inrollment Privy-seal c. For thereby it appeareth that it was the grant of the King If Queen Elizabeth recite That whereas her Father made such a Lease and doth not recite it by the name of Henry the 8. her Father it is good enough if Henry the 8. made such a Lease But in such case if Henry the 7. made the Lease then the Lease of the Queen had not been good for that she mistook her Ancestor for Henry the 7. was her Grandfather 10 H. 7. 20. 20 H. 7. 7 8. The Kings Patent may be without Date for he may resort to the Inrolment and Privy-Seal and so help it But in such case if he doth surmise a false Date the same makes the Patent void 21 E. 4. 45. Misrecital of the year of the Reign of the King will make void a Patent And in our Case by the misrecital of the year of the King there is a year gained It was objected That it shall be helped by the Statute of 34 H. 8. which helps Mis-recital and Non-recital But in our case it is not a Mis-recital For Mis-recital is when part of that which is recited is true and part false but Non-recital is when nothing at all is recited But in our Case it is a false Recital of the subject in the thing which is surrendred Genny surrendred nothing and the King took nothing Trin. 9 Jacobi Roper and Roden's Cases Henry the 8. reciting by his Grant That where he had a Reversion expectant upon a Demise made unto M. whereas in truth it was made unto N He granted the Reversion unto Roden It was adjudged That that recital was not helped by the Statute of 34 H. 8. for that the King had not any such Reversion 19 Jacobi Tucker and Carr's Case was adjudged upon the same point Doddington's Case C. 2. part There a general Grant is not helped by the Statute of 34 H. 8. In our Case here is a mistaking of the thing it self If he had recited the same to be 33 H. 8. and then had mistaken any thing in it it had been helped by the Statute of 34 H. 8. Dyer 195. Kemp was Nonsuit there 32 H. 8. was mistaken for 33 H. 8. There the Surrender was of a Patent bearing date 32 H. 8. whereas in truth it bore date 33 H. 8. And there it is adjudged That the Patent of 32 H. 8. cannot be the Patent of 33 H. 8. by which the Office was granted to him And therefore it was adjudged void notwithstanding the Act of 34 H. 8. and other Statutes of Misrecital So in our Case 33 H. 8. is mistaken
with reference to a misrecited Patent is not helped by the Act of 34. H. 8. But when the thing granted is particularized with reference to a thing which is determined in a misrecited Patent then the Statute of 34. H. 8. will help it but in our Case the misrecitall is of a thing which needed not to be recited The second Objection which hath been made is That the King is deceived by reason of the false suggestion And then the Letters Patents made by reason thereof are void I answer That if the false Suggestion tendeth to the detriment of the Crowne and to the apparant prejudice of the King then the Letters Patents may bee avoided But where the Suggestion is of a thing not materiall and doth not tend either to the deceit of the Crowne or to the Kings prejudice neither in his profit nor his Inheritance there it shall not make void the Letters Patents Dyer 352. Where an Abbot Lessee for sixty years of the Queen made a Lease for eighty yeares the sixty years expired the Lessee for eighty years surrendred to the Crown and in consideration of that Surrender to have a new Lease there the second Patent was void for the King was deceived in the reall consideration And Dyer there said That it was but the Suggestion of the party and the Collection of the Queen C. 5. part 93. 94. Where Lessee for yeares of the King did assigne part of his Terme and Land to another and then surrendred the surrender there was the consideration and that was not good If the recital be made of a thing which needeth not to be recited and the Patent is made upon another consideration there the misrecital shall not hurt it C. 1. part 41. where Henry the seventh reciting cum pâ—st c. virtute cujâ—s c. the estate is recited as determined the Reversion shall passe for the King was certified of the estate And in our Case it is determined Where the falsitie of the suggestion is not in deceit nor to the prejudice of the King If the thing misrecited be not materiall it shall not make void the Patent C. 10 part 110. Legates Case Quae quidem c. the false suggestion shall make void the Patent for the King did not intend to abate his Revenue Fitz. Nat. Brev. Grants 58. Falsitie of Tenure of the King shall make void the Kings Licence For the falsitie of suggestion which came from the party did tend to the prejudice of the King in his Tenure C. 10. part 110 Quod quidem manibus c. ratione Escheatae c. It shall make void the grant by this suggestion of the party which doth prejudice the King in his title But where the Suggestion is not to the prejudice of the King in his revenue tenure nor title it shall not make the Letters Patents void C. 10. part 113. MARKHAM's case The King grants the office of Parker quod quidem Officium the Earle of RUTLAN'D late had And the said Earl never had it the Suggestion was of a thing not materiall to the second Patentee nor to the Kings prejudice therefore it was good 10. H. 6. 2. Quod quidem Manerium seisitus fuit in manus nostras the false suggestion there shall not make void the Patent because it was not of a thing materiall If the King grant a Manor quod quidem Manerium nuper fuit in tenura I. S. and in truth it was not in the Tenure of I. S. yet it was adjudged good For Nuper is a Recitall of the thing that was and not of a thing that is For if it had not been in the possession of I. S. whereas in truth he was not seised or possessed thereof there it had not been good It is found in our Case That the Lease is actually surrendred and so the misrecitall is of a thing that was scil nuper and not of a thing that is or in esse The next Exception is to the Letters Patents of Philip and Mary First because thereby the Lease of 36. H. 8. is not fully recited For there was a Proviso That if he did not pay a summe in grosse that it should be void And that it should determine by the Death of Pawlet the Patentee The misrecitall of that Collaterall matter by the Common Law shall not make void the Grant There are three things necessary in Recitalls First The Certainty of the particular estate in esse with the Limitations Secondly The Tenant to whome the particular estate was made or the Tenant which then is in possession Thirdly The thing granted by the same name as it is granted in the first Patent But Covenants Reservations Provisions Conditions and the like need not to be recited The Recitall ought to be of a thing in esse Avowry 112. A Towne was granted by the King And afterwards he granted unto another a Leet in the same Towne the King in this case needed not to recite the grant of the said Towne Secondly The Recitall ought to bee in the same name as it was granted in the first Patent And cannot be helped by averment if it be misrecited Thirdly the Tenant of the Land or the Tenant which was before the grant ought to be recited scil that such a man habuit to whom the first Patent was granted Or that he now hath the Lands or lately had the thing granted in possession Brook Pat. 96. Such things ought to be recited as ought to be pleaded against the King in an Information of Instruction In our Case the misrecitall being of a thing determined and not materiall and not to be the guide of the second Patent doth not make void the Grant to Pawlet It was objected That Queen MARY was deceived for the Grant was de â—isdem praemissis And in the former Patent the Park was excepted but so it was not in the Letters Patents to Pawlet In the first Patent reasonable Herbage was granted but in the second to Pawlet the Grant was of Herbage generally If the King except the Deer as hee doth in this case then hee ought to have sufficient herbage for his Deer The Jury finde That the Letters Patents of 36. H. 8. were absolutely surrendred eâ intentione that the King might make a new Lease in forma sâ—quente which is not de praemissis sed de praementionatis Now the King for two hundred pounds Fine is pleased to grant tam in consideration of the Surrender quà m for the Fine of two hundred pounds And here the King took knowledg that it ought to be in forma sequente and then by reason of the Fine and Surrender hee is pleased to vary from the former Patent and it is to the prejudice of the Patentee The first was reasonable Herbage and here it is Herbage and in the Kings Case it amounts to as much as if hee had said Reasonable Herbage for because the King excepts the Deer it is implyed That the Patentee is but to have
reasonable Herbage Here the Grant is not De omnibus grossis arboribus bonis catellis Felonum and of the Goods of Felons themselves and in the former Patent these were granted and so the Grant is for the Kings benefit and to the prejudice of the Patentee Also this Patent is ad proficuum Domini Regis For here is a Rent reserved and here is a Proviso for the committing of Waste in the premisses which were not in the first Letters Patents and in these Letters Patents there are divers Covenants which were not in the former Patents and so it is in forma sequente And so the Lease of Philip and Mary is good The King seised of a Manor to which he hath a Park doth grant the Stewardship of the Manor and the Custodie of the said Park with reasonable Herbage Afterwards in the same Letters Patents hee grants the said Manor of O. and all the Lands in O. excepting grosse trees in the Park If this Grant be not good for the Manor it is not good for the Park that was the Objection It is good for the Manor and also for the Park It was objected That the King grants the custody of the Park and so not the Park it selfe for how can the King grant the custody of the Park if he grant the Park it selfe it is dangerous that upon an implication in one part of a Patent the expresse words which follow should be made void the subsequent words in this Case are The King grants the Manor and all the Lands to the same belonging now the Park doth belong to it and the King excepts only the Deer C. 10 part 64. The King at this day grants a Manor unto a man as entirely as such a one held the same before it came into his hands c. the Advowson doth passe without words of grant of the Advowson for the Kings meaning is That the Advowson shall passe The meaning of the King is manifest in our Case C. 3. Part 31 32. Carr's Case There the Rent was extinct betwixt the Parties yet for the benefit of the King for his tenure it hath continuance for a thing may be extinct as to one purpose and in esse as to another purpose 38. Ass 16. a Rent extinct yet Mortmain Dyer 58 59. The Exception ought to be of the thing demised In our Case the Park doth passe but the King shall have the liberties in it and so here the Park shall passe and the Exception is of the liberties Com. 370. the Exception ought to be of that which is contained in the former words in the former Patents the Offices were first granted and in the same Letters Patents the Manor was afterwards granted But now King James grants the Manor first and then the Offices Construction of Statutes ought to be secuncundùm intentionem of the makers of them and construction of Patents secundùm intentionem Domini Regis C. 8. part 58. You ought to make such a construction as to uphold the Letters Patents C. 8. part 56. Auditor Kings Case There the Letters Patents were construed secundùm intentionem Domini Regis and adjudged good But to make void the Patent they shall not be construed secundùm intentionem but to make a Patent good they shall be construed secundùm intentionem Domini Regis The Case was adjourned till Michaelmas Terme next Note I have heard Sir Henry Yelverton say That it was the opinion of the Judges in this Case That he had but the custody of the Park and not the interest of the Park for that by the acceptance of the custody of the Park when he had a Lease of the Park before it was a surrender of his Lease Trinit 21. Jacobi in the Kings Bench. 492 SHORTRIDGE and HILL's Case SHortridge brought an Action upon the Case against Hill for ravishing of his Ward and the Writ was contra pacem without the words Vi armis Lib. Dent. 366. where three Presidents are of Actions upon the Case without Vi armis An Action upon the case for doing of any thing against a Statute must be contra pacem Ley Chief Justice Recovery in this Action may be pleaded in Barre in a Writ of Ravishment of Ward brought Dodderidge Justice The Action of Trespasse at the common Law is only for the taking away of the Ward and here he hath elected his Action at the common Law and then he shall not have an Action upon the Statute viz. a Ravishment of Ward but here the Action upon the Case is brought for the taking and detaining of the Ward so as he cannot preferr him in marriage and upon this speciall matter the Action upon the Case lieth without the words Vi armis A Writ of Ravishment of Ward ought to be brought in the Common Pleas but yet you may bring a Writ of Ravishment of Ward in this Court if the Defendant be in the custody of the Marshal of the Marshalsey for in such special Case it shall be brought in this Court if there be an extraordinary matter besides the Trespass then an Action upon the Case lieth as when A. contracts with B. to make an estate unto B. of Bl. Acre at Michaelmas if C. enter into Bl. Acre A. may have an Action upon the Case against C. for the speciall damage which may happen to him by reason that he is not able to perform that contract by reason of the entry of C. and he shall declare contra pacem but not Vi armis Trinit 21. Jacobi in the King 's Bench. 493 BAKER and BLAKAMORE's Case IN Trespass the Defendant pleaded That J. S. being seised in Fee gave the Lands unto Baker and the Heirs of his body and conveyed the Lands by descent to four Daughters and Blakamore the Defendant as servant to one of the Daughters did justifie The Plaintiff did reply That the said J. S. was seised in Fee and gave the same to Baker and the Heirs Males of his Body and conveyed the Land by descent to himself as Heir Male absque hoc that J. S. was seised in Fee Henden Serjeant did demur in Law upon the Replication and took Exception to the Traverse for that here he traverseth the Seisin of J. S. whereas he ought to have traversed the gift in tail made by J. S. for the being seised is but an inducement not traverseable and therefore he ought to have traversed the gift in taile for then he had traversed the seisin for he could not give the Lands in tail if that he were not seised thereof in Fee L. 5. E. 4 9. there in Formedon the Tenant would have traversed the Seisin of the Donor but the book is ruled that the Traverse ought to be of the gift in tail and that includes the Seisin Bridgment for the Plaintiffe and said That the Serjeant is of opinion contrary to the Books when he saith positively that you ought to traverse the gift in tail and not the seisin of the Donor
taking be before the Action brought R. is excused We say That postea antè the purchasing of the Bill and I suppose we need not lay down any day but the postea antè makes it certain enough If the viz. be repugnant to our allegation it is surplusage 41. Eliz. in Communi Banco Bishops Case Trespass is brought for a Trespass supposed to be done 4. Maii 39. El. It is ruled in that Case That the videlicet doth not vitiate the premises because it is surplusage Trinit 34. El. in the Kings Bench Garford and Gray's Case In an Avowry it was shewed That such an Abbot surrendred 32. H. 8. and that the King was seised of the possessions of the said Abby and that postea scilicit 28. H. 8. the King did demise and that the same descended to King Ed. 6. there it was ruled that postea had been sufficient though he had not shewed the year of the demise of the King so here postea ante do expresse that he was taken before the Bill brought Dodderidge Justice If the day had been certain at the first and then he cometh and sueth that postea videlicet such a day and alledgeth another day which is wrong there the videlicet is not material but if the first day be uncertain then the videlicet ought to be at a certain day otherwise it is not good Curia If you had left out your time your videlicet it had been good for you must expresse a certain time for when the time is material it ought to be certain If you had layed down a certain day of the purchase of his Bill then the ante would have been well enough Dodderidge Justice If a thing is alledged to be done in the beginning of the Term quaere if that shall be intended the first day of the Term if you can make it appear that it must be intended of necessity of the first day of the Term then you say somewhat and then the videlicet is void and surplusage Judgement was given for the Plaintiff Pasch 3. Caroli in the Kings Bench. 498 DEAN and STEELE's Case AN Action upon the Case for words was brought for words spoken in the Court of Sudbury and it was layed That he did speak the words at Sudbury but did not say Infra jurisdictionem curiae 2. The Judgement in the Action upon the Case was capiatur And for these two Errors the Judgement was reversed Pasch 3. Caroli in the Kings Bench. 499 GOD and WINCHE's THIS Case was put by Serjeant Astley A Lease is made for life by Husband and Wife and the Covenants were That he should make such reasonable assurance as the Counsel of the Lessee should advise and the Counsel advised a Fine with warranty by the Husband and Wife with warranty against the Husband and his Heirs and the Defendant did refuse to make the assurance in an Action of Covenant brought it was moved That it was not a reasonable assurance to have a Fine with Warranty because the Warranty did trench to other Land But the Court did over-rule it and said That it is the ordinary course in every Fine to have a Warranty and the party may rebut the Warranty Pasch 3. Caroli in the Kings Bench. 500 IT was cited to be adjudged That if a man purchase the next avoidance of a Church with an intent to present his son and afterwards he doth present his son that it is Symony within the Statute of 31. Eliz. Ter. Mich. 4. Caroli in the King 's Bench. 501 HILL and FARLEY's Case IN Debt brought upon a Bond the Case was A man was bound in a Bond That he should perform observe and keep the Rule Order and finall end of the Councel of the Marches of Wales And in Debt brought upon the Bond the Defendant pleaded That the Councel of the Marches of Wales nullum fecerunt ordinem The Plaintiffe replied That Concilium fecerunt ordinem that the Defendant should pay unto the Plaintiffe an hundred pound The Defendant did demurre in Law upon the Replication And the only Question was If the Plaintiffe in his Replication ought to name those of the Councel of Wales who made the Award by their particular names Jermyn who argued for the Plaintiffe said That he ought not to name the Councellors by their proper names and therefore he said That if a man be bounden to perform the Order that the Privy Councel shall make or the Order which the Councel should make That in Debt upon the same Bond If the Defendant saith that he hath performed Consilium generally of the Councel without shewing the particular names of the Councellors it is good And he vouched 10. H. 7. 6. 10. E. 4. 15. and Com. 126. Sir Richard Buckleys case That the number of the Esliors ought not to be particularly shewed But in an Action brought upon the Statute of 23. H. 6. he may declare generally that he was chosen per majorem numerum and that is good And 10. E. 4. 15. In debt upon a Bond That the Defendant shall serve the Plaintiffe for a year in omnibus mandatis suis licitis The Defendant said That he did truely serve the Plaintiff untill such a day as he was discharged And it is there holden that he is not compellable to shew the certainty of the services Banks contrary and said That he ought to name the Councel by their particular names And therefore in this case he ought to have pleaded specially as in 9. E. 4. 24. If a man will plead a Divorce Deprivation or a Deraignment he ought to shew before what Judge the Divorce Deprivation or Deraignment was So 1. H. 7. 10. If a man will plead a Fine he must shew before what Judges the Fine was levied although they be Judges of Record And he took this difference That the Judges ought to take notice of the Jurisdiction of generall Courts which are Courts of Record and of the Customes of those Courts but of particular Courts which have but particular Jurisdictions and particular Customes the Judges are not to take notice of them nor of the Lawes and Customes of such Courts if they be not specially shewed unto them And therefore although it was alledged That it was the generall usage to plead Awards or Orders made before the Councel of the Marches of Wales as in the principall Case yet he held that the Judges were not to take notice thereof And therefore the Councellors who made the Order ought to be particularly named 2. He said that the Replication was not good because the Plaintiffe in his Replication doth not shew that the Order was made by the President and the Councel for by the Statute of 34. H. 8. it ought to be made by the President and the Councel 3. He said That the Replication was not good because the Plaintiffe doth not shew within the Record that the matter of which the Order was made was a matter which was within their
Inrollment 7 270 142 Intent Intendment 130 121 381 Common 332 Interest not dividable 18 77 78 Interesse termini 2 3 175 Interruption 22 48 Joyning in action 43 283 90 116 160 345. Husband and Wife 10 Joint-charge 56. 57. Joint-tenants 129. Joinâ—ture forfeited by 11 H. 7. 6. 339. Issue lâ—giâ—tim are born after ten moneths c. 281. Issue not proved by the special matter 10. Of Issues see 23. 286. 92. 100. 108. 154. A thing in Issue not in the verdict 57. Mâ—â— joyned no issue 56. Several issues 57. Repugnant 62. Negative and affirmative 194. tried 233. Jury 334. their finding things 33. 34. 65. 274. 88. 171. 359. Examined sworn 209. Forein matter ibid. Strongly imply a thing 36. Three with Sweet-meats in their pockeâ—s 364. Returned 370. Judges sworn to procure the Kings profit 201. Judgment in a Writ of Error 27 66. in Account 258. Husband and wife 369 80. False 176. depending on another 176. staid 177. joint 448. voidable 96. entred Concessum est 399. Justification 277. 137. Jurisdiction of Courts 45. 240. 427. 163. 196. 197. shewing how 380 381. K. KIng usurped upon 7. 8. adhering to his enemies in France 34. To direct the lawes 237. his Prerogatives 290. 291. 292. 293. 294. 295. 296. 297. 298. 299. Prerogative-law Common-law 295. Lands once in the King 441. 442. devest without Office 443. Intrusion upon the King 133. Knights of S. Johns of Jerusalem 393. Lay 394. their possessions Ecclesiastick 393. 395. 396. 397. 398. 399. Templars 394. L. LAches in not entring the Kings silver 139. Laps 129. Lâ—w against the rule of the Common-law to meddle with blood 393. The Law preserves things in its custody 316. Not alterable by grant 201. Leases Term extinguished 2. 3. 5. 268. 129. on Continge â—ie rule 419. 420. Exception of timber-woods and underwoods 98 99. In certain beginning 24. 25. 166. may be avoided 323. 324. and revive 325. within 32 H. 8. 102. Joining to Lease 211. Lease for life by Copyholder 171. of an infant Copyholder 364. of a stock of sheep 113. windfals 117 118. by a Parson 302. by Tenant in tail 9. wants a beginning 419. Legacies for children security to be given 243. A verbal Legacie after the will made 246. 247. To be paid at full age 182. Suit for them 41. Liberty to cleanse a Water-course 98 Licence to erect Dove-cotes 259. 82. 93 93. Limitation by Law statute 5. Limitation of an Estate 19. 103. Of time for actions according to 21. Jac. 437. Livery 9. 25. 84. 93. 301. 158. Right extinguished by it 314. London insolency of the Common-Councel 106 107. Custome there 127. Lunatick M MAâ—hem 67 Maintenance 81 159. 450. hem Mannor 3. 135 Market 131. Marshaâ—sey Judgment there 184. Marriage 2 Is a Release 271. Master and Servants acts of and to the Servant 361 Mines 5. 28. Misnaming 35. 38. 283. Mirâ—cital 36. 170. in the Kings Grant 416 417. 420 421 422. of a Statute 178. Mistake of the day 125 126. of the date 433. Monasteries 1. 392 393. what houses within the Stat. 31 H. 8. there 394 Monstrance of Deeds c. 85. 111 112 114 115. How things are done 61. 126. Of the Place 187 188. 359. 412 413. time 391. Of Letters of Administration 34. Of a Bond must be 39. In what Ward c. 160. Of more then needs and that false 189. That the place is within the Jurisdiction c. that he ought to be priviledged c. 402. Inducement to a matter need not be showne precisely 404. Number and names to be shown 436. before whom c. 437. Monstrance of right 301. 304. Mortmain 192. Murder Manslaughter se defendendo 288 289. within the Stat. of King James 154. N NAme 17. in a Writ 40. 379. 398. Nihil dicit 135 Nisi prius 10. 328. Nomine poenae 12. 154. Non compos 302. 316. 321. Non obstante in the Kings Grants 37. Nonsuit 328. 220. Non use 235. No such Record See Record Notice 23. 162. 339 Nusance 4. 259. 58 59. 183. then when an Action upon the Case when an Assise of Nusance part of an house in Assise abated 233 O OAth putting to a mans Oath 151. Obligation the Condition against Law 13. see 152. 177. see 192. to save harmless 212. not within 13 Eliz. 29. by the High Commissioners 148. Bond to deliver Possession the Assignee of Reversion demands it 272. taken by the Sheriff 136. 212 213. to pay when out of his apprenticeship c. 153. Occupant occupancy 52 172. 220. Offices Officers 21. 47 48. Insufficient 390 391. Coroners 64 89. 105. Regarder 277. Steward of the Leet 71. Office found 312 313. 322. Rights vest without Office 325. void if in deceit of the King 192 Omission of word in a Certificate 407. Ordinarie 30. 191. Ordinances 253. 106 107. Over-sea 268 Outlawry 83. 119. Oyer of a Record not to be denied 186. P PAyment before the day 10 Parceners 3. 129 130. Parceney 3. Park-keeper for what things accountable 419 Forfeits 419. Parker forfeits not his Office by Attainder 418. Parks 237. 425. Chasing 169. beasts of it there 171. Pardon 378. Parliament Summoned at the Kings pleasure only 250. held at the Kings pleasure Writ of Error there must be the Kings Licence 247 by Petition 250 Parsons heretofore Knights 399 Parsonage 34 Partition 3 4. 265. 14 84 85 86. by word 94 Partners in Trade 244. 90. Patents 21. 37. Exposition of them 418. void 254 Perjury 88 89. 179. Perpetuity by devise 102. 350 351. Perquisite 27. Petition of Right 304. Place to be alleadged 48. 187 188 189. 382 384. Plaint entred 266. Pleas 6. 43. 91. 95 96. 145. 121. Certainty 93. in debt 359 360. Amount to a general issue 374. General where they should be specially 10. taken strictly 70. mistaken 121 not entred new Plea 176. Plwalitâ—es 23. 153. Portiâ—n of Tythes 35. Pâ—ssâ—ssion unity 4 Possibility 20. 25. may pass by a grant 26 146 325. Premunire 308 389. Praecipe 6 16. 87. 152. Preâ—ogative see King Presentation 265 179. as Precurator 319. Pâ—â—seâ—â—mentsâ—n â—n Courts c. 59. 〈◊〉 14 15 16. 262. 54 Rules of it there and 237. â—7 184. in a Court 48. one against another 183. Principal and accessory Prâ—vily 19. to sue 377. 379. Prviledg 10. 81. 286. 90 372. Priviledges not transferrable 396 397. of discharge 398. Pleaded 398. time to pray it 404. Probate of Wills Exception of the 23 H 8. 214. Proceedings of Law the form must be kept 201. Procedendo 442. Proclamation 107. Proces 73. Erronious 371. Judicial 328. A Summons for an Attachment 400. Proof 254. Profession trial of it 393. Prohibition 260. 259. 45. 51. 63. 216. 234. 243. 246. 273. 163. 164. 196. 200. 301. 446. 447. Promise 13. 32 271. 94. 134. 349. 350. 216. Property 26 27 117. 118. 193. Changed by tender 330. 331. in things 〈◊〉 naturae 123. Protection 299. 366. Proviso 18. gives power to lease 195. No proper place for it 418. Purchase by
Jurisdiction It was adjourned Mich. 4. Caroli in the King 's Bench. 502 SHUTFORD and BOROUGH's Case IN an Action upon the Case upon a Promise the Case was this The Defendant had a dog which did kill five of the Plaintiff's sheep and the Defendant in consideration the Plaintiffe would not sue him for the said sheep and also in consideration that the Plaintiff would suffer the Defendant to do away the sheep promised to give him recompence for the said sheep upon request and the Plaintiffe alledged the promise to be made 18. Jacobi and that afterwards 2. Caroli he did request so much of the Defendant for the said sheep The Defendant pleaded in Bar the Statute of 21. Jacobi cap 16. of Limitation of Actions and alledged That the Action was not brought within six years after the cause of action accrued which was the promise And it was adjudged that the plea in Bar was not good for it was resolved That where a thing is to be done upon request that there untill request there is no cause of Action and the time and place of the request is issuable And so was resolved 1. Caroli in the Kings Bench in Peck's Case and Hill 16. Jacobi in the same Court in Hill and Wades Case and in the principall Case the request was 2. Caroli and that was within the time limited by the Statute of 21. Jacobi And the meaning of the Statute was but to barre the Plaintiffe but from the time that he had compleat cause of Action and that was not untill the request made And when divers things are to be done and performed before a man can have an Action there all these things ought to be compleated before the Action can be brought And therefore If a man promise to pay I. S. ten pound when he is married or when he is returned from Rome and ten years after the promise I. S. marrieth or returneth from Rome because the marriage or the Returne from Rome are the causes of the Action that the party shall have six years after his marriage or return to bring his Action although that the promise was made ten years before And in the principall Case the cause of Action is the breach and that cannot be untill after the Request made and where a Request is material it ought to be shewed in pleading And so it was resolved by the whole Court nemine contradicente that the Action was well brought and within the time limited by the Statute And Judgement was entred for the Plaintiffe Mich. 4. Caroli in the Star-Chamber 583 FLOYD and Sr THO. CANNON's Case IT was agreed by the Lord Keeper Coventry and the whole Court in this Case That if a man did exhibite a Bill against another for oppression and layeth in this Bill That the Defendant did oppress A. B. and C. particularly and an hundred men generally That the Plaintiffe by his witnesses must prove that the Defendant hath oppressed A. B. and C. particularly and shall not be allowed to proceed against the Defendant upon the oppression of the others layed generally before his particular oppression of A. B. and C. be proved But if the charge layed be generall and not particular as if the Plaintiffe in his Bill saith That the Defendant hath oppressed an hundred men generally there he may proceed and examine the oppression of any of them And Richardson Chief Justice of the Common Pleas said That if a man exhibiteth a Bill against another for extortion there the Sum certaine which he did extort must be laid particularly in the Bill And he cannot say that the Defendant did extort divers sums from divers men generally And so was it adjudged in Reignolds Case in this Court. Also in every oppression there ought to be a threatning of the party for the voluntary payment of a greater sum where a lesser is due cannot be said extortion And afterwards the Bill of Sir Thomas Cannon was dismissed for want of proofs ex parte Querentis Mich. 4. Caroli in the Star-Chamber 504 HUET and OVERIE's Case IN a Ryot for cutting of corn It was agreed by the whole Court That if a man hath title to corn although that he cometh with a great number to cut it with Sickles it is no Riot but if he hath not any title although that he doth not come with other Weapons then with Sickles and cutteth down the Corn it is a Riot And it was agreed by the whole Court in this Case That Witnesses which were Defendants and which are suppressed by order of the Court although that afterwards there he no proceedings against them yet they shall not be allowed of at the hearing of the Cause in that Court. And this was declared to be the constant rule of that Court. Trinit 5. Caroli in the Kings Bench. 505 The Earle of PEMBROKE and BOSTOCK's Case IN a Quare Impedit Judgment was given and the same Term a Writ of Error is delivered to the same Court before a Writ to the Bishop is awarded to admit the Clark It was holden by the whole Court That the Writ of Error ought to have been allowed without any other Supersedeas because a Writ of Error is a Supersedeas in it self Whitlock Justice If in this Writ of Error the Judgement be affirmed the Defendant in the Writ of Error shall have damage 506 The Bailiffs Aldermen Burgesses and Commonalty of Yarmouth and COWPER's Case IN a quo Warranto brought against the Bailiffs Aldermen c. they did appear by Warrant of Atturney and one of the Bailiffs named in the Warrant did not appear nor agree to it It was holden by the whole Court That the appearance of the major or greater part being recorded was sufficient And it was also holden per curiam that although the Warrant of Atturney was under another Seal then their common Seal yet being under Seal and recorded it cannot be annulled Vide 14. H. 4. If two Coroners be and one maketh a return the same is good but if the other doth deny it then it is void Mich. 8. Caroli in the Kings Bench. 507 LANCASTER's Case against KIGHTLEY and SINEWS JUdgement was given in a Scire facias against the Bail A Writ of Error was brought by the Defendant in the principall Action and the Bail And the opinion of the Court was That a Writ of Error would not lie hecause the Judgements against them were severall but they ought to have severall Writs of Error And the books of 3. H. 7. 14. 3. E. 4. 10. and 2. Eliz. Dyer 180. were vouched And so was it adjudged Hill 11. Jacobi Rot. 1377. in the Exchequer Chamber in Doctor Tennants Case Where a Writ of Error was brought by the Defendant and the Bail and it was adjudged that they could not joine in an Writ of Error but ought to have severall Writs Mich. 8. Caroli in the Kings Bench. 508 EVELEY and ESTON'S Case IN Trespass It was found That a man was Tenant in tail of
to Thomas Spence and his Wife and the Survivor the Rent of seventeen Pounds yearly and every year during the terme Proviso that if the Rent be arrere by forty daies that Thomas and his Wife or the Survivor of them should enter Thomas Spence died his Administrator did demand the Rent and being denied entred for the Condition broken Calthrope argued That the reservation to the Wife was void because she had not any interest in the Land and also never sealed the Indenture of Assignment but was as a stranger to the Deed and so he said that the Wife could not enter for the condition broken nor make any demand of the Rent The 2l l Point was Admitting that the wife could not enter nor demand the Rent Whether the Administrator of the Husband might demand it and enter for the condition broken because the words are Yeilding and paying to Thomas Spence and Jane his Wife and the Survivor of them during the term and no words of Executors or Assigns are in the Case and he conceived the Administrator could not and so he said it had been resolved in one Butcher and Richmonds Case about 6. Jacobi Banks contrary and he said It was a good Rent and well demanded and the reservation is good during the Term to the Husband and Wife and although the word Reddendo doth not create a rent to the Wife because the Husband cannot give to the Wife yet the Solvendo shall gain a good rent to the Wife during the life of the Wife and the reservation shall be a good reservation to him and his Administrators during the Survivor Vide C. 5. part Goodales Case 38. E. 3. 33. 46. E. 3. 18. and admitting that the rent shall be paid to the Wife yet the condition shall go to the Administrator 2. The word Solvendo makes the Rent good to the Wife and amounts to an agreement of the Lessee to pay the Rent to them and the Survivor of them and that which cannot be good by way of reservation yet is good by way of grant and agreement and many times words of reservation or preception shall enure by way of grant Vide 10 E. 3 500. 10. Ass 40. 8. H. 4. 19. Richard Colingbrooks Case 41. E. 3. 15. 13. E. 2 Feasts and Fasts 108. Richardson Justice The Reservation being during the term is good and shall go to the Administrator Jones Justice contrary It is good only during the life of the Lessor and so was it adjudged in Edwyn and Wottons Case 5. Jacobi Crook Justice accorded The Administrator hath no title and the Wife is no party to the Deed and therefore the Rent is gone by the death of the Husband If it had been durante termino generally perhaps it had been good but durante termino praedicto to him and his Wife it ceaseth by his death And the words durante termino couple it to him and his Wife and the Survivor and it cannot be good to the Wife who is no party nor sealed the Deed neither can it inure to the Wife by way of Grant And the words Reddendo and Solvendo are Synonima and the Administrator is no Assignee of the Survivor for she cannot assign because she hath no right in the Rent Barkley Justice The intention of the parties was That it should be a continuing Rent and Judges are to make such Exposition of Deeds as that the meaning of the parties may take effect I do agree That the Wife could not have the Rent neither by way of Reservation nor by way of Grant if she were not a party to the Indenture but here she is a party to the Deed for it is by Deed indented made by the husband and wife and the husband hath set his Seal to it And 2. The Solvendo doth work by way of Grant by the intent of the parties The Reddendo shall go and relate as to the husband and the Solvendo to the wife and he agreed the Case 33. H. 8. Br. Cases because there expressum facit cessare tacitum but in case of a Lease for years the words Reserving Rent to him shall go to the Executor who represents the person of the Testator and 27. El. it was adjudged in Constables Case and Littleton agrees with it That the Executor shall be possessed and is possessed in the right of his Testator And therefore if an alien be made an Executor in an Action brought by him the Tryal shall not be per medâ—â—tatem lâ—nguae And this Case is the stronger because the Reservation is during the Term. And C. 3. part in Malleries Case That the Law shall make such a construction Upon reservation of Rent upon a Lease as may stand with the intent and meaning of the parties and therefore in that where an Abbot and Covent made a Lease for years rendring Rent yearly during the Term to the Abbot and Covent or to his Successors it is all one as if it had been to him and his Successors and although the words be joint or in the Copulative yet by construction of Law the Rent shall be well reserved during the terme for if the reservation had been only Annually during the terme it had been sufficient and his Successors should have had the Rent Quaere the principall Case for the Judges differed much in their opinions Hill 8. Caroli in the Kings Bench. 517 The KING against HILL AN Information was by the Kings Atturney against Hill and others upon the Statute of 32. H. 8. of Maintenance Where the Point was A man was out of Possession and recovered in an Ejectione firme in May 2. Car. and Habere Possessionem was awarded and 29. Sept. 4. Car. he sold the Land And whether he might sell presently or not was the Question And it was determined That he being put in possession by a Writ of Habere facias possessionem that he might sell presently Vide Com. Crookers Case and C. Littl. acc and so was it holden in Sir John Offley's Case 7. Car. in this Court Barkley Justice If a Disseisor doth recover in an Ejectione firme if he afterwards sell the Land it is a pretended Title Jones Justice It was adjudged 36. El. in the Common Pleas in Pages Case in the Case of a Formedon That if a man be out of Possession for seven years and afterwards he recover that he may sell the Lands presently Crook Justice There is a difference where the recovery is in a reall Action and where it is in an Ejectione firme It was Master Browneloes Case in the Star-Chamber resolved by all the Judges of England That a Suit in Chancery cannot make a Title pretended nor Maintenance Barkley Justice put this Case If Husband and Wife bargaineth and selleth whereas the Wife hath nothing in the Land and afterwards a Fine is levied of the same Lands by the Husband and Wife it shall have a relation to conclude the Wife and to make the Wife to have a Title ab initio It was
adjourned Pasch 10. Caroli in the Kings Bench. 518 BARKER and TAYLOR's Case IN an Ejectione firme the Case upon the Evidence was this Two Coparceners Copy-holders in Possession the one did surrender his reversion in the moity after his death Charles Jones moved That nothing did passe because he had nothing in Reversion Vide C. 5. part Saffyns Case If a man surrendreth a Reversion the Possession shall not passe 2. It is not good after his death so was it adjudged in C. 2. part Buckler and Harvey's Case Curia The Surrender is void and the same is all one as well in the Case of Copy-hold as of Free-hold and so was it adjudged 26. El. in Plats Case and so also was it adjudged in this Court 3. Caroli in Simpsons Case Pasch 13. Caroli in the Kings Bench. 519 HUMFREYS and STUDFIELD's Case IN an Action upon the Case for words the Plaintiff did declare That he was Heir apparant to his Father and also to his younger Brother who had purchased Lands but had no Issue either Male or Female and that the Defendant with an intent to bring him in disgrace with his Father and also with his younger brother and thereby to make the Father and younger Brother to give away their lands from the Plaintiff did maliciously speak these words to the Plaintiff Thou art a Bastard which words were spoken in the presence of the Father and younger Brother by reason of speaking which words the Father and younger Brother did intend and afterwards did give their Lands from the Plaintiff And by the opinion of the whole Court it was adjudged That the words were Actionable and Judgement entred accordingly FINIS I have perused this Collection of Reports and think them fit to be printed Per me JOHANNEM GODBOLT Unum Justiciar ' de Banco 18. Jun. 1648. An Alphabetical TABLE A ABatement of Writs 9 34 64 By Death 66 68 For Surplusage 380 Abeyance 313 314 319 443 Accâ—ptance 47 39 384 385 425 When a man is bound to accept c. 39 Accessary 65 Accusation before a Justice 444 Acts which purge the wrong before 384 Act subsequent where lawfull 28 29 First Act 337 Action 337 Another Action hanging 258 In what County 42 See County there where it bears date 388 Possessory 34 Before Seisin c. Special 186 Accord see Arbitrament Account 30 43 56 90 291 155 122 123 210 As Baiâ—y ad Merchandizandum 58 Against Executors 291 292 Acquittal 19 Acquittance 104 Addition de Parochia 203 Administrator is found to be an Executor 26 Surety in debt is Administrator c. 149 Administrator counts of his own Possession before he be possessed 34 see 40 Retains for his own debt 217 Administration 33 34 2 Durante minori c. 30 Sues to Execution the Executor comes of age 104 Admiralty upon a stipulation or bill there the body of the stipulators who are for the most part Masters of ships and Merchants transeuntes may be taken no execution can be upon lands It s jurisdiction 260 261 Admiralty Court its jurisdiction things partly done on land 386 387 388 389 390 Advâ—wson 17 38 128 129 passes in Grants 425 Equity in Statutes 308 Agreement disagreement 180 After an arâ—est 360 After Assumpsit 361 Alien 275 Amendment 57 286 103 Amercement 49 135 Distress for it without Presentment 190 Annuity 4 144 Ancient Demesn pleaded 64 320 Appeal 275 Appendant Appurtenant 40 352 353 Apportionment of rent 95 118 139 Apprentices bound by Covenants though Infants 122 Appropriation 1â—4 Approvement of common 116 Arbitrement 13 241 25 276 165 185 in part good 256 Arreers 12 Array triers of it 429 430 Arrests 125 358 lawful 360 Assault and battery 251 Assent of parties 429 430 Assets 29 30 31 averred 176 Assignment 18 of Debts 81 c. Assignee 3 16 70 271 277 120 162 Assize 4 for erecting houses 189 Assurance as counsel shall advise 435 bound to assure 445 446 Assumpsit 13 31 274 72 73 94 159 the arrest is void 360 337 338 350 138 144 358 to the servant 361 Attachment of Debts by custome 297 196 401 402 403 404 Attainder 267 275 303 325 376 Attaint 271 378 279 Atturnment 19 25 320 142 Atturney for livery 39 Atturney must not do acts unlawful 387 what he may do 389 Receipt by him 217 Audita querela 257 104 155 377 Averment of uses 269 214 in a devise 131 432 that Cestuy que vie is alive 195 Avowry 24 302 320 upon whom 368 Authority must be persued 39 84 195 389 naked 307 to recover a debt without more 358 359 Ayde 318 B BAil 148 339 Debt against them 354 Bailment of Goods 160 403 Bankrupts one Commissioner hath right to the land 319 division where but one bond 195 196 Bargain and sale 270 156 Bar Pleas in Bar 253 434 Insufficient 138 two bars 397 Barretor 384 Bastard 275 281 Battery a base fellow strikes a man of dignity 207 Benches 246 247 Bill Suits by bill 389 Bill for oppression or extortion 438 By-Lawes 50 Bishops their Acts 342 Borough English 3 C CApias 39 257 83 372 373 Case Action of c. 13 40 54 55 58 64 240 241 73 285 98 155 160 381 412 liâ—s 329 330 338 344 346 137 176 200 362 426 against an Inn-keeper 42 See Slander Vi armis c. 426 Trover c. 267 274 Challenge 234 110 193 428 429 to the Sheriff and Coronets 357 Chancery 262 Chaplains 41 Charge 3 Charters 370 Things in point of Charter 93 Church-Wardens 279 Cessavit 84 Certainty incertainty 14 93 336 220 once in a deed 198 Certiorari Certificate 14 356 404 Citation out of the Diocess 190 Claim 333 389 of the Lessee 105 Clark of a Parish 163 Colledges are Corporations 394 Collusion Covin 78 298 Colour 159 Commission Commissioners 105 193 High Commissioners 58 Common 4 21 96 97 185 168 169 170 171 Surcharged 182 Digging in the Common c 343 344 making Coney Boroughs 327 Where woods are inclosed 267 What the Commoner may do upon the ground 123 12â— Conclusion by the word praetextu 344 Condition assignee 162 c. 3 9 29 38 39 75 99 101 against Law 250 void 293 Lessee assignes Rent 336 broken acceptance by rent after 47 performance 299 that neither A. B. or C. shall disturb c. 60 61 not to implead A. 72 to assure lands as Councel shall advise 338 339 360 Confession 80 to save harmlesse c. 134 Confirmation 25 Consideration 13 31 32 94 134 159 437 against Law 251 to forbear a debt 303 306 See assumpsit 428 Conspiracy 76 206 447 Consultation 446 447 Contract 31 98 176 intire 154 Continuance to some intents 309 in Courts 195 Contribution for one surety against another 243 Conviction before it lands not to be begged 206 nor seised there 365 366 Copy-hold 2 11 47 233 268 129 130 140 Admittance 269 143 extinguished 101 Statutes extend to it 15 369 tailed 20 21 367 Fines 265 Leases