house or not When a man maketh a feoffment of a Messuage cum pertinentii he departeth with nothing thereby but that which is parcell of the house as buildings curtelage and gardens If a Lessee for yeares makes a Lease for a certaine Tearme of any parcell and so divides the possession thereof from the residue if of this parcell so severed Liverie be made the possession in the residue by the first lessee is not any impediment to the liverie of this parcell otherwise if a Lessee make a Lease at will of any parcell there his possession of the residue shall hinder the liverie made in this parcell and with this judgement agreed all the other Justices and Serjeants of Serjeants Inne in Fleete-streete Doddingtons Case 27. Eliz. fo 32. KIng H. 8. Ex certa scientia c. granted to A. for 300 l. Omnia illa Messuagia in tenura Johannis Browne Scituate in Well nuper prioratini de W. Spectant ' And in truth the Lands lie in D. in this Case 't was resolved that the grant was voide by the Common Law as well in case of a common person as the King because the grant is generall and is restrained to one certaine Village and the grantee shall not have any Lands out of that Village to which the generallity of the grant is referred for this Pronoune Illa hath his necessary reference as well to the Towne as well as to the Tenure of I. B. for if eyther the one or the other faile the grant is voide And so it was adjudged Per tot cur de Banco Regis Resolved also that this grant was not holpen by the Statute of 34. H. 8. For no grants are holpen by this Statute nor by any act of confirmation but such as comprehend convenient certainty 1. Quia generale nihil certum implicat And here no Tenements are mentioned to be granted because the generall grant being intire was referred to a falsity and therefore it cannot be said that the Towne was misnamed and great inconvenience would follow if c. for the King should be deceived but the Statute helpes when there is a convenient certainty as a Mannor Farme Land knowne by a certaine name or containing so many Acres c. So that it may appeare what things the King intended to passe Note t is the most sure way for the Pattentee to expresse as much as he can in certainty before the generall words SIR Rowland Heywards Case In cur Wardor 37. Eliz. fo 35. SIr Rowland Heyward seised of a Mannor in Demeans and rents in consideration of money doth demise grant Bargaine and sell to A. the said Mannours Lands Tenements and the reversions and remainders with all Rents reserved upon any demise to have and to hold to A. and his asignes after the death of the Lessor for seaventeene yeares rendring a rose the Indenture was inrolled and after the Lessor by Indenture doth Covenant with B. to stand seised of the premises to the use of himselfe and the Heires of his body and no attornment was made to A. The Question was What passed to A and it was resolved by Popham and Anderson chiefe Justices and the Court that A. may have his election eyther to take the same by demise at the common Law or by bargaine and Sale Per Statutum 27. H. 8. without attornment for it was one entire demise and bargaine of one Mannor without any fraction or division thereof and this election remaineth to A. and his Executors and assignes for here is not Election to claime one of two severall things by one Title but to claime one thing by one of the two severall Titles for where the things are severall nothing passeth before Election and the Election must precede but when one thing passeth the Election of the Title may be subsequent For if I. have 3 Horses and doe give to you one of them the property comenceth by Election and must be made in the life of the Parties The Bi of Sarum had a great wood of 1000 Acres called Brerewood and infeoffed another of one House and seaventeene Acres parcell of the Wood and made Liverie in the Wood House nothing passeth of the Wood before Election and the Heire of the feoffee may not make Election Bullocks Case 10. Eliz. Dyer In case where election is given of two several things he which is the primer Agent and that ought to doe the first act shall have alwayes the Election As if a man grant a Rent of twenty Shillings or a Robe the Grantor shall have the Election for he is the primer Agent eyther by paying the one or delivering the other If a man make a Lease rendring twenty shillings or a Robe the Lessee shall have the Election Causa qua supra but if I give unto you one of my Horses in my Stable there you shall have the Election for you are the Primer Agent by taking or seising one of them and so of twenty trees in my Wood. Note for Elections these diversities 1. When nothing passes to the grantee c. before Election there it ought to be made in the life of the Parties but when the Estate passes presently c. the Grantee c his Heire or Executor may elect 2. When the same thing passes and the Donee c. hath Election in what manner c. he will take it the Donee Heire or Executor may elect 3. When Election is given to severall persons the first shall stand 4. When Election is given of two severall things he which ought to doe the first Act shall have Election 5. When the thing granted is annuall and to have continuance there the Election remaines to the Grantor in case where the Law gives him Election as well after the day as before otherwise t is when the thing is to be performed Vnica vice 6. The feoffee c. by his act may forfeit his Election as if A. infeoffe B. of two Acres Habendum the one for life the other in Taile and hee before Election makes a feoffement of both here the feoffor shall enter in which he pleases for the wrong of the feoffee 7. Though the Lessees here enter generally yet they may Elect after so if one be Executor and Devisee of a terme and enters generally c. and after the Lessees in the principall case made Election for to take by bargaine and Sale and had the Rents The Bishop of Winchesters Case 38. El. fo 43. In a prohibition REsolved that at common Law none had capacity to take Tythes but spirituall persons or Persona mixta as the King and regularly no meere Lay man was capable of them except in speciall Cases for he could not sue for them in Court Christian and regularly a lay man had no remedy for them till 32 H. 8. A Lay-Man may be discharged of Tythes at the common Law by grant or by composition but not by prescription for it is commonly said in our Law-Books that a lay man may
the husband had and to the remainder A. tenant in taile the remainder to B. the remainder to C. the remainder to D. A. makes a Feoffement the feoffee suffers a recovery B. is vouched and he vouches the common vouchee A. is not bound but B. and all the remainders are for though the remainders are discontinued and cannot be remitted till the taile be recontinued yet in a common recovery which is the common assurance he which comes in as vouchee shall be in judgement of Law in privity of the estate which he ever had though the precedent estate upon which the estate of the vouchee depends be discontinued so here the husband shall be said in of the taile and 't is the stronger because the estate of the wife was put to a right so that the husband came in as sole tenant in taile and not joyntly with his wife because she is not vouchee and he cannot be in of another estate because once he had a taile but had they had a joynt estate to them and the heires of their two bodies he being onely vouched it might be doubted whether the taile should be barred because the wife had a joynt inheritance with him 8. of the Queene Dyer Knivetons case A Praecipe is brought against tenant for life and the remainder in taile they vouch over it shall not binde the taile for the remainder is not tenant to the Praecipe and the land is recovered against the tenant for life onely and recompence shall not goe to the remainder and the remainder was never seised by force of the taile and so 't was adjudged in Leach and Coles case 41. of the Queene Heydons case 26. of the Queene fo 7. THe Gardians and Cannons Regular of the late Colledge of O. seised of the Mannor of O. granted a Coppihold to Father and Sonne for their lives c. and after they leased it to H. for fourescore yeares rendring the ancient Rent and after surrendred their Colledge Resolved that the lease to H. was voyd the Coppi-hold for life continuing by the Statute of 31. H. 8. For Coppihold is an estate for life and the Statute saith of which any estate or interest for life c. at the making of such grant had continuance reade the Booke at large where you have admirable rules for true interpretation of all Statutes Resolved when a Parliament alters the service tenure interest of the land c. in prejudice of the Lord custome or tenant the generall words shall not extend to Coppi-holds as the Statute of W. 2. de donis conditionalibus doth not extend to them for if the Statute should alter the estate this should also alter the tenure for the donee ought to hold of the donor and to doe such services without speciall reservation as his donor did to the Lord and the intent of the act was not to extend to such base estates which were taken then but tenants at will and the Statute saith Voluntas donatoris observetur in carta c. So that which shall be intailed ought to be such an hereditament which may be given by Charter and great part of the land within the Realme being granted by Coppy it would be inconvenient that Coppi-holds should be intailed yet neither Fine nor Recovery should barre them so that the owner cannot without making a forfeiture by assent of the Lord and a new grant dispose of it for payment of debts advancement of his wife or younger issues wherefore the Statute doth not extend to them by Manwood Ch' Baron which the Court agreed But 't was objected that the Custome and the Statute cooperating might make a taile as if by a custome a remainder had been limitted over and injoyed and plaints in nature of a Formedon in discender brought and the land recovered by it so neither the custome without the Statute nor the Statute without the custome can make a taile And Littleton saith that if a custome hath been that lands c. have been granted c. or in taile c. paulo post that a Formedon in discender lyes of all tenements which Writ was not at common law Manwood answered if the Statute doth not extend to them without question the custome cannot for before the Statute all estates of inheritance were fee simple and no custome can commence after the Statute for this being made 13. E. 1. is made within time of memory and Littleton is to be intended of a fee simple conditionall for he knew well that no custome could commence after the Statute of W. 2. as appeares in his booke 2. ca. 10. and 34. H. 6. and a Formedon in discender in speciall cases lay at the common Law And by the Court another Act made at the same time which gives an Elegit extends not to Coppiholds for the reason aforesaid but other Statutes made at the same time extend to them as ca ' 3. which gives a Cui in vita receite and ca ' 4. which gives to the particular tenant a Quod ei deforceat Resolved that though 't was not found that the said rents were the usuall rents accustomed to be reserved within 20. yeares before yet because 't was found that the accustomed rent was reserved and a custome goes to all times before it shall be so intended without shewing the contrary and judgement was enterd for the Queene The common Law is founded upon the perfection of reason and not according to any private and sudden conceite or opinion Borastons Case 29. of the Queene fo 19. B. Devised land for eight yeares and after to his executors to performe his will till H. his youngest Sonne come to the age of 21. yeares and when H. comes to 21. yeares then that he shall have to him and his heires H. dyed at the age of 9. yeares Objected that till H. attaines to 21. yeares the land descends to the heire and for that he never attained to 21. yeares this remaines in the heire and the intent appeares by the words that he should not have till he come to 21. yeares and this ought to precede the commencement of the remainder and if land were leased till H. comes to 21. yeares H. then being of 9. yeares 't is no absolute lease for 12. yeares for if H dye before 21. the lease shall be determined which the Court agreed 'T was also said that when the particular estate which should support the remainder may determine before the remainder can commence there the remainder doth not vest presently but depends in contingency If one make a Lease to A. for life and after the death of B. the remainder to another in Fee this remainder depends upon contingency for if A. dye before B. the remainder is voyd A Lease is made to A. for life the remainder to B. for life and if B. dye before A. the remainder to C. for life this is a good remainder upon contingency If A. survive B. which case is all one with
rent for though it be parcell of the grange and A. and F. have the reversion of the terme and so it may be said in their tenure yet for that A. then had not H. in his occupation 't is not charged Resolved that the lessee at will is chargeable by 32. H. 8. ca ' 37. for where things are due in right and become remedilesse by the act of God the Parliament which gives remedy for this shall be favourably construed and extend to advance the remedy proportionably to the defect of the Law according to the mind of the makers and therefore the Feoffee of the Feoffee in infinitum shall be charged for otherwise the Statute shall be in vaine c. Resolved if the grantee in fee or for life of a rent service or charge after 't is arreare grants over the tenant attournes the grantor dyes his Executors are not within the Statute for by the grant the arrerages are lost and were not due to the testator tempore mortis as the Statute speakes and after the grant the testator could not distraine for the arrerages and the act gives remedy onely where the arrerages are due and become remedilesse by the act of God Sharpe and Pooles case 17. of the Queene a rent was granted to a woman for life 't is arreare she takes husband 't is arreare the wife dyes the husband brings debt against the heire being terrtenant for all arrerages Resolved that for the arrerages before the marriage he had no remedy at common Law but for the other he had debt Objected that the husband shall not have the arrerages due before by this Statute 1. Because at common Law the Executors of the wife may have an action for them and the Statute gives remedy when Executors cannot have an action and doth not intend to toll the remedy from the common Law 2. The branch says due in the wives life so the arrerages ought to incurre when she is his wife Resolved to the contrary for the Statute says due and unpaid in the wives life and the common Law gives remedy for the arrerages of an estate for life incurred in the life of the wife and therefore the Statute did not intend to extend to these arrerages but to the arrerages due before for Verba accipienda sunt cum effectu Resolved that a Feme covert cannot make an Executor without assent of her husband and the administration of her goods of right belong to the husband And the Statute in naming the woman wife intends noely to describe and designe the condition of the womaln not to imply that the arrerages ought to incurre during coverture Rawlins case 29. 30. of the Queene fo 52. A. Possessed of a house for thirty yeares except a Stable of which B. was possessed for two yeares granted all his interest to C and demised the Stable to B. for sixe yeares by Indenture after the end of the two yeares C. redemises all to A. for twenty one yeares rendring twenty pounds per annum and to pay a Fine of twenty five pounds upon condition for to reenter for non payment of the rent or Fine before the day of payment A. redemises the Stable to C. for ten yeares the rent was behinde the Fine was not paid C. enters not into the Stable nor B. attournes Resolved that where the verdict was entered three termes past and in the Roll the demise to B. for six yeares was not enterd to be by Indenture that the Roll shall be mended because the note of the speciall verdict which the Jury exhibited to the Court remaining with the Secondary purports that the Jury found the demise prout by which it doth appeare to the Court that the demise was shewne in evidence and reference made by the note to it and so 't was in Gomersalls case Resolved though the condition is of two parts in the dis-junctive for non-payment of rent or of the summe in grosse yet if A. had redemised any part of the house to C. and C. enters by which the rent is suspended that all the condition as well for the collaterall summe as for the rent is also suspended because the condition is intire and cannot be divided by the act of the parties Resolved that if A. had redemised any part to C. though C. never enters the rent is suspended and though a stranger occupy it Resolved that the lease by A. to B. for six yeares though he had nothing at the time was good by conclusion by the Indenture and when C. redemised all to A. then was the interest bound with this conclusion then when A. redemises to C. the Stable C. is also concluded for all parties and privies in estate or interest are bound by the Estoppell then the case is no other but that A. demises for six yeares the Stable to B and after demises to C. for twenty yeares which is a good Lease in reversion for fourteene yeares this is no suspension of the rent or condition for 't is no grant of the reversion but a future interest in reversion no terme but an interest of a terme as the pleading is and notwithstanding such grant the reversion is in the grantor without atturnement and he shall have the rent upon the first lease but if there be an atturnement the reversion passes and suspension will follow And therefore 't was agreed if a man leases for twenty one yeares rendring rent and a reentry the lessee leases to the lessor for six yeares to commence two yeares after the rent is arreare and by this he shall defeate the future interest vested in him Resolved that this Estoppell being found by verdict the Court ought to judge upon all the speciall matter according to Law and because they are sworne ad veritatem dicendam they did well to finde the truth of the case and leave it to the Court by Wray chiefe Justice in Pledalls case the Jury was attainted for not finding such a lease by conclusion intending 〈◊〉 they being sworne ad veritatem dicend ' 〈◊〉 not bound to finde it for the Court held that the interest of the land as to parties and privies was bound and no conclusion shall be by such Indenture after the terme ended by Wray Resolved if lessee for twenty yeares leases for two yeares rendring rent and grants all his terme and interest if the lessee attournes the reversion passes and if no attournement be yet the interest in reversion passes for the grant of a man shall not be adjudged voyd if to any intent it may take effect Resolved if lessee for twenty yeares of a house leases part for two yeares and after leases to another all for ten yeares rendring rent so that it inures as a Lease in reversion for part that the rent shall issue out of all and of the interest of the terme though it be not any estate that may be surrendred and though it be conjoyned with land in possession Error was brought upon this
In cur wardo fol. 68. IN a devise of Lands by writing an averment out of the will shall not be received for a Will concerning Lands c. ought to be in Writing and not by any averrment out of the same otherwise it were great inconvenience that not any might know by the written words of the will what construction to make if it might be controuled by collaterall averrment out of the will Cases of Vsury Burtons Case 34. Eliz. banco regis fo 69. A. Lends to T. W. 100. l. 7. July 21. Eliz. in consideration of which T. W. grants to him a rent charge of 20. l. per annum the first payment to be at the Nativity 1580. upon condition of payment of the said 100. l. this is out of the Statute of Usury for he had a 100. l. for a yeare and a quarter without consideration and if he pay it within this Time A. shall not have the rent so that he was not assured of any consideration But if it were agreed betweene them that the 100. l. shall not be payd this is within the meaning of the Statute A Demurrer is a confession of all such matters in fact onely as are well and sufficiently pleaded Claytons Case 37. Eliz. Com' Banco fol. 70. THirty pound was lent for halfe a yeare to have for it thirty-three pound if the sonne of the obligee be then in life if not 27. pound this is within the intent of the Statute of Usury Vsura dicitur ab usu aere quasi usuaera 1. usus aeris Et usura est commodum certum quod propter usum rei mutuatae recipitur Glanvile lib. 7. cap. 16. Hoes Case 34. Eliz. fo 70. A Duty certaine upon a condition subsequent may be released before the day of the performance of the condition but a dutie uncertaine at the first and upon condition precedent to be made certaine after this in the meane time is but onely a meere possibilitie and therefore cannot be released And it was adjudged 4. El. in communi Banco that by a release of all actions suites and quarrels a covenant before breach of it is not released thereby But by a release of covenants the covenantor is discharged before the breach vide Litt ' 170. A release in the time of vacation to the Patron dischargeth an annuitie wherewith the Parson is charged in respect of the parsonage and a warranty may be released before suite because he may have a warrantia chartae St. Johns case 34. El. Banco Regis fol. 71. DAggs Pistolls c. are within the Statute of 33. H. 8. ca ' 6. the same Statute doth prohibite Crosse-bowes and under the same name stone-bowes are forbidden for if a small alteration or addition should defeat the penaltie of the act the Statute should be of small effect And it was resolved that the Sheriffe or any of his Officers for the better execution of Justice may carry handguns or other weapons invasive or defensive and not restreined by the generall prohibition of the said act vide 3o. H. 7. fo 1. Williams case 37. Eliz. Banco Regis fol. 72. ONe man shall not have an action of the case for common Nusans made in the high way because it is a common Nusans and it is not reason that any particular person should have an action for then every particular person might have an action for the same and so thereby one might be punished an hundred times for one cause But if any particular person have more particular damage then another hee may have a particular action upon the case for this particular injury for common Nusances which are equall to all the Kings people the common Law hath appointed other Courts viz. Leets c. A prescription to doe divine service in a Chappell for the Lord and his tenants is remediable onely in the Court Christian but for the Lord and his private family an action of the case lyeth for the Lord onely Case of Orphanes of London 35. El. Banco Regis fol. 73. IF any Orphane of London sue for goods c. in the Court Christian or of Requests a prohibition lyeth because their government by their custome belongs to the Major of L. So if a Will be proved in the Court Christian the probate whereof belongeth to the Lord of a Mannor Wymarkes case 36. Eliz. Banco Regis fol. 74. PLaintiffe in an Ejectione firmae counts of a Lease of R. S. the defendant pleads in barre an Indenture of bargaine and sale and sheweth it by the said R. S. to E. W. who was seised untill disseised by R. S. who leased to the plaintiffe and he as servant to E. W. enters Three Termes after the plaintiffe replies that the bargaine and sale was upon condition which was broken and the bargainor entred and leased to him and did not shew forth the deed of bargaine and sale Judgement given for the defendant 1. Resol When a Deed is shewed to the Court it remaineth in the Court all the Terme in Judgement of Law because the Terme is but one day in Law and this as well to strangers as parties to take advantage thereof without shewing but at the end of the Terme it shall be delivered to the party if it be not denied for then it shall remaine in Court to be damned if it be found not his Deed. 2. The Course in the Kings Bench is that Imparlances to plead in barre are entred but not Imparlances to Reply or rejoyne so that the Replication here although it be three Termes after the Barre yet it shall be intended here the same Terme and so he shall not need to shew the Deed. Cliftons case 35. Eliz. fol. 75. IF a woman tenant for life take an husband which committeth wast and after the wife dyeth the husband is dispunishable of and for such wast for the Writ is Quare cum de communi consilio c. provisum sit quod non liceat alicui vastum venditionem seu destructionem facere de terris c. sibi demissis ad terminum vitae vel annorum c. And in this case the husband hath not any estate for life in this Land but the wife hath estate for life and the husband but onely an estate in her right and so he is not within the Act. Pilkintons case 43. Eliz. in banco le Roy. fo 76. IT was resolved Per tot ' Cur ' that when a distresse is taken for damage fesant that the party may tender amends untill the beasts be impounded but after they be in the pound they are in the custody of the Law and then the tender cometh too late It was also resolved that tender of amends to the Bayliffe or servant that taketh them will not serve for he cannot deliver the distresse once taken no more then change the avoury of his Master or demand rent upon a condition of reentry The Earle of Pembrookes case 36. El. Banco Regis fol. 76. WHere the defendant sheweth a
or Ignominious Signes as Gallowes c. The Punishment is by Indictment as in the Starre-Chamber Palmers Case 8. Jac. fo 126. banco regis THe Gardian in Chivalry shall have the single value of the Marriage of the Heire without tender otherwise the Heire may defeate the Lord by Marriage or goe beyond the Sea and so prevent the Lord of any tender if it were requisite Caudreyes Case 33. Eliz. in Trespasse THe Jury found the Statute of 1. Eliz. cap. 1. and cap 2. and that the Plaintiffe was deprived for Preaching against the Booke of Common Prayer by the Bishop of London una cum assensu c. Resolv 1 The deprivation was good for the first offence because the Act of 1. Eliz. for uniformity of Common Prayer doth not abrogate 1. Eliz. for Ecclesiasticall Jurisdiction without negative words and by an expresse proviso the Jurisdiction of the Bishop is saved Resolv 2. That sentence given by the Bishop by assent of his Collegues ought to be allowed by our Law Resolv 3. The Commissioners shall be intended Subjects borne c. Stabitur praesumptionj c. Also it is found that the King authorized them Secundum formam Statuti Resolv 4. The Act of 1. Eliz. for Ecclesiasticall Jurisdiction was onely declaratory for the King being an absolute Monarch and head of the body politick had plenary power to minister justice to his Subjects in Causes Ecclesiasticall and temporall See Circumspecte agatis 13. E. 1. and Articulj Clerj 9. E. 2. Reges sacro oleo uncti sunt spiritualis jurisdictionis capaces See there diverse judgements Lawes and Acts of Parliament cited to prove the Kings supremacy in Causes Ecclesiasticall The End of the Fifth Booke THE SIXTH BOOK Where Services intire shall be Apportioned Bruertons Case 36. Eliz. In the Court of Wards Fol. 1. LORD and Tenant of three Acres by Homage Fealty a hawke and Suite of Court the Tenant makes a Feoffement of one Acre the Feoffee by the common Law shall hold by all intire services annuall and casuall and the Statute of Quia emptores Terrarum doth not extend to intire services but by the Statute of Marlebr c. 9. the Feoffees shall make but one Suite and he who doth it shall have Contribution against the others if they are severally infeoffed otherwise if jointly 2. Intire services shall be multiplied by the Act of the Tenant and extinct by the Act of the Lord as if he purchase part 3. By Act of the Lord intire service for his private benefite is extinct otherwise if it be for the publick good for works of Charity Devotion or administration of Justice 4. If part comes to the Lord by act in Law yet the intire service remaines except in Case where Contribution is to be made for the Lord shall not contribute 5. If part comes to the Lord by Act in Law and of himselfe as by recovery in a Cessavit all the intire services are gone Where the Paroll shall demurre for the nonage of the Demandant and where the Tenant shall have his Age. Markals case 35. Eliz. com banco fo 3. IN a Formedon in the remainder by an Infant of a remainder limitted to his Father and his heirs the tenant cannot pray that the parol may demur but in a Formedon in the reverter he may In actions auncestrell the Tenant may pray that the parol may demurre because a right onely discends to the Infant and the Law will not suffer him to sue for feare that he may loose for want of understanding but in possessory Actions he cannot because then every one will put Infants out of possession and it would be mischevious if they should not regaine their possession untill full age So it is in all Writs where the cause of action happens in the time of the Infant And as to Actions auncestrell they are of two sorts Droiturell and possessory the first is where a right onely discends from the Auncestor and the Infant ought to lay the explees in the Auncestor and there the Tenant without plea pleaded may pray that the paroll may demurre but if the Auncestor were never in possession as in this case he was not and the Infant himselfe is the first in whom it vests there without plea pleaded hee shall not pray that the Parol may demurre but if a right discend from an auncester who was in possession although the Action doth not discend the Tenant may pray that the parol may demurre as if Non compos mentis alien and dye In actions auncestrell possessory the parol shall not demurre without plea but if at the common Law the Tenant had pleaded a feoffement of the auncestor then he may pray c. but the Statute of Gloucester cap. 2. aideth that in writs of Cosinage Besaiell and aiell but this extends not to other actions in a Formedon in the discender where an Infant recovers but a limitted estate the Parol shall not demurre without plea in an Assize or assize of Mortdauncester the Parol shall not demurr because the Jury is to appeare the first day and try all things The Statute of Westm 1. cap. 46. Age is taken away in entry upon disseisin where fresh suite is made but an Infant shall have his age in all reall Actions where he is in by discent and the Action is not founded upon his owne wrong except in Nuper obijt and Partitione facienda where both are in possession or attaint for the mischiefe of the death of the Petty Jury The Statute of West 2. cap. 40. Ousteth the age of the Vouchee in cuj in vita and Sur cuj in vita although that the Tenant will answer if the parol ought to demurre yet the Court ought to award that the parol shall demurre Sir John Molyns Case 40. Eliz. in Scaccar fo 5. KIng Edward the third Lord Abbot of Westminster Mesne and C. Tenant C is attainted of Treason the King grants to Sir Jo. Mo. Tenendum de nobis álijs capitalibus dominis feodi illius per servitia c. the Mesnalty is revived Obj. 1. That the tenure shall be Per servitia inde debita at which time no service was due to the Mesne 2. An expresse tenure of the King is limitted and it cannot be immediatly holden but of one To the first it was answered that there are sufficient words to renew the Mesnalty because the intention of the King appeares to be so and it is reasonable that the Mesne who offended not should not suffer losse 2. It shall be holden imediatly of the Abbot and mediatly of the King Wheelers Case 43. Eliz. in Scaccario fo 6. THe King grants Land Tenendum by a Rose Pro omnibus servitijs this is Socage in chiefe and the tenure shall be by fealty and a Rose and Pro omnibus is to be intended of other services which the Law doth not implie Resolutions and Diversities when a barre in one action shall be a barre in another Ferrers Case 41. Eliz. Com.
Banco fol. 7. IF one be barred by plea to the Writte hee may have the same Writte againe if by plea to the action of the Writte he may have his right action If the plea be to the action and he be barred by Judgement upon demurrer confession or verdict in personall actions it is a barre for ever and in reall actions he is put to a Writte of higher nature as barre in assize barreth one in Entry in nature of an assize but he may have an assize of Mortdaumester c. But barre is not perpetuall if those who are barred have not the meere right therefore the heire in taile who is barred shall have the same action so of the successor of a Parson if he doth not pray in ayde of the Patron and Ordinary He who lost by default before the Statute of Westminster 2. cap. 4. was put to a Writte of right and if he could not have this Writte he was without remedy In case where a Writte of Entry in the post lyeth now no remedy was before the Statute of Marlebridge cap. 29. but a Writte of right See there divers inconveniences which insue upon the breach or alteration of the auncient and fundamentall rules of the Common Law Interest Reipublicae ut sit finis litium Where a Writte shall be brought by Journeys accounts Spencers case 45. Eliz. Com. Banco fol. 9. IF a formedon abate for undue summons the demandant may have another by Journeys accompts 1. Resol If a Writte abate by default of the demandant himselfe he shall not have another Writte by Journeys accompts otherwise it is if by default of the Clerke or Sheriffe as in this case If a Writte abate for nontenure of all he shall not have c. but if a Praecipe abate for non-tenure of parcell he shall have another so if it abate for joyntenancy of part of the demandant he shall not have a new Writte because he had notice otherwise it is of the part of the tenant And this Writte shall be alwayes betwixt the parties to the first Writte and of the same quantity of acres A Judiciall Writte shall never be sued by Journeys accompts because it shall never abate for forme 2. The second Writte is quasi a continuance of the first Writte therefore all pleas which relate to the purchase of the Writte shall be pleaded from the purchase of the first Writte and costs of the first Writte shall be recovered 32. E. 3. Journeys accompts 16. 15. dayes were allowed Jentlemans case 25. Eliz. concerning Judges of Courts fol. 11 IN the Hundred Courts the Sutors are Judges in the Court of Pypowders the Steward is Judge In a Leet the Steward is Judge In a Court Baron the Sutors which are by the common Law are Judges Rex sectatoribus Curiae c. Vobis mandamus c. ad judicium reddendum c. procedatis but in Redisseisin the Sheriffe is Judge by the Statute of Merton cap. 3. and in the Tourne Morrices case 27. Eliz. Com. Banco fol. 12. IT was adjudged that after the act of 28. H. 8. ca. 1. although joyntenants be compellable to make partition by Writte as well as Copartners yet they may not make partition by words as Copartners may doe by the common Law If two joyntenants make partition by Writte the warranty remaineth otherwise it is if it be by deed by Consent Cases of pardon 29. Eliz. fol. 13. BVrton Parson of Isbock in Leic was deprived Anno 12. El. for committing Adulterie and after by the generall pardon 2. Apr. 13. El. the offence of adulterie in t alia was pardoned before the 14. of February then last past And it was said that before the pardon that crimen adulterij praed transivit in rem judicatam and therefore the sentence should remaine in force And therefore untill the sentence were reversed the deprivation was in force But it was resolved that Burton by vertue of the said pardon is become Parson againe without any sentence declaring the said deprivation to be voyde For by the pardon the adultery which was the cause of the sentence is discharged and by consequence all that which did stand or depend upon the same foundation is also discharged vide 20. El. Dier A. was bound in a Statute of 20. li. to B. B. sued Execution and the Lands of A. were delivered in Execution and after B. maketh Defeasance to A. by Indenture that if A. doe pay to B. 8. li. at a certaine day that then the Statute to be voyde And it was adjudged that although the Statute was executed yet the Defeasance of the Statute was sufficient in Law to defeate as well the Statute as the Execution thereof For the Statute is the foundation of all and if that be defeated all that is builded on the same shall be defeated also 20. ass pla 7. Burglary was excepted out of the generall pardon of 28. Eliz. by that the attainder of burglary is excepted for the offence remaines after judgement and is the foundation of it Arundells case 36. Eliz. Banco Regis fol. 14. AN Inditement of murther in King-streete in W. and the visne from W. and it was vitious for it ought to be from the most certaine place that is the Parish for W. being a Citie it shall be intended that it is greater then the Parish and therefore a new Venire facias was awarded Treports case 36. El. Banco Regis fol. 14. A. Tenant for life remainder in fee to B. both by Deed indented joyne in a Lease to Treport the question was whether the same shall be adjudged in Law the Lease of both of them or not And it was resolved that it was the Lease of A. during his life and the confirmation of B. And after the death of A. it was the Lease of B. and the confirmation of A. and because the plaintiffe had declared of a joynt demise of A. and B. it was adjudged against the plaintiffe in an Ejectione firmae If tenant for life and he in remainder joyne in a Lease rendring rent tenant for life shall have the rent during his life Edens case 37. Eliz. Banco Regis fol. 15. RIens passa by Letters patents shall be tryed where the Land is not where the patent beares date for the Patent is not traversed but the effect of the issue is whether the Queene had the said Land to grant or not Colyers case 37. Eliz. Com. Banco fol. 16. ONe demiseth to his daughter for life and after to his brother paying 20. s. to J. S. the brother had fee for the summe to be paid by him for otherwise he may pay the 20. s. and die without satisfaction but if the payment be to be made out of the profits of the Land he shall have but for life for there he can be at no prejudice Wyldes case 41. Eliz. Banco Regis fol. 16. A Man deviseth Lands to the husband and the wife and to the children of their bodies
in Banco Regis BY the Law it is not sufficient that the testator be of memory when he makes his Will to answer to ordinary and usuall questions but he ought to have a disposing memory so as he is able to make disposition of his Lands with understanding and reason And this is such a memory which is called safe and perfect memory otherwise a Prohibition lyeth at the common Law generally to stay all the proceedings in the spirituall Court as the probate of the Will c. untill this Suggestion be tryed at the common Law Reades Case 42. Eliz. banco regis fo 24. IN trespasse the Defendant makes Title for that A. W. was seised in fee and leased to him the Plaintiffe maketh title by discent and traverseth the Lease and good for it may be true that A. W. was seised and yet that a discent was cast to the Plaintiffe therefore the Lease is most materiall to be traversed Helyars Case 41. Eliz. banco regis fo 24. IN a Replevin the Defendant avoweth by grant of a terme by I. A. to S. from whom he claimeth the Plaintiffe pleads in barre that I. A. married T. who by a former deed granted the terme to the plaintiffe and traverseth the grant made to S. and vitious for he who claimeth by the first assignement shall not traverse the second but he who claimes by the second shall traverse the first But the first Feoffee shall traverse the last feoffment and the last feoffee shall not traverse the first feoffement because fee may be gained by disseisin after the first feoffement but a Lease for yeares caanot Ruddocks case 41. Eliz. banco regis fo 25. IN replevyn against six the Plaintiffe recovers the Defendants bring error the Plaintiffe pleads the release of one of them not good Where diverse are to recover a personall thing the release or default of one barres all but not where they are to discharge themselves of a personalty if they are compelled to joyne as in error and attaint otherwise in Outlary because not compellable to joyne for where they are to discharge themselves they have no joynt interest and although they shall have their damages againe it shall be intended that they paid them of their severall goods otherwise it may be doubted if Execution had beene made of goods which they have joyntly Sharps case 42. Eliz. fo 26. com banco IF a man make a feoffement in Fee or a Lease for life and say to the Feoffee being eyther on the Lands of within the view Enter into this Land and enjoy the same according to this deed c. this is a good livery but the delivery of the deede upon the Lands without any further ceremony or saying doth not amount to a livery Throughgoods Case 9. Jacob in the nineth Booke The actuall delivery of a Writing sealed to the party without any words is a good livery but not a livery of seisin although the Party be upon the ground If I deliver a deede unto the feoffee or Lessee of the Messuage mentioned in the deede in the name of seisin of the said Messuage and of all the Lands tenements c. in the same contained or other such like words without any ceremony or act done this is a good seisin The Case of Souldiers 43. Eliz. fo 27. THe Statutes of 7. H. 7. cap. 1. and 3. H. 8. cap. 5. against Souldiers who run away are acts perpetuall for the word King includeth all his succession and a gift to the King inureth to his Successors Vicount Mountagues Case 43. Eliz. in Scaccar fol. 27. VIcount M. with License of the K. suffers a recovery to B. and D. to uses with power of revocation and limitting of new and revokes and limits new uses the King shall have no fine for alienation 1. Resolved if the King doth license to alien to one and alienation is made to the use of another the King shall not have a fine for although that the King was not informed of his Tenant yet the use is executed by the Statute of 27. H. 8. which can doe no wrong and the proviso in the Statute that a fine shall be paid for executing of uses is to be intended of uses raised by Covenant or declared upon a Fine Feoffement c. when no License of alienation is obtained 2. Although that by revocation and new limittation of uses the tenant of the King be altered yet no fine is due because all ariseth out of the estate of B. and D. which was made with License Greenes Case 44. Eliz. banco regis fol. 29. TEnant for life of a Mannor to which an advowson is appendant the remainder in Fee to I. S. presenteth one who at the suite of the Tenant for life is deprived for not reading the Articles but no notice is given to the Patron the Queene by lapse presents the Defendant Tenant for life and his incumbent die he in the remainder presents the Plaintiffe Greene who recovereth 1. Resolv Although the Patron were party to the Suite and so had notice yet lapse shall not incurre without notice given by the ordinary as the Statute speakes and the notice ought to be speciall that he did not reade the Articles and therefore was deprived and generall notice is not sufficient 2. The Church is voyd Ipso facto by the Statute of 13. Eliz. without deprivation 3. If the Queene present Ratione Lapsus where shee is Patron this is voyd A fortiori when shee had no title at all 4. The Patron is not put to a Quare impedit by presenting him who read not the Articles nor by Collation but by Collation of him who had right to Collate the Patron is put out of possession 5. The Queene may be put out of possession of an advowson because it is transitory but shee cannot be put to a Writ of right of advowson for none can gaine the Inheritance from her by wrong Boothies Case 3. Jacobi com banco fol. 30. THe condition of an Obligation is to deliver an Obligation to the Obligee and to acknowledge satisfaction it must be done in convenient time for acts transitory to be done to the Obligee although a place be appointed shall be done in convenient time and acts of their nature locall ought to be performed in convenient time if concurrence of the Obligor and Obligee be not requisite Also here the delivery of the bond being transitory and the acknowleding satisfaction such an act as may be performed in the absence of the Obligee they ought to be done in convenient time without request but if the Act be locall and their concurrence necessary the Obligor had time during his Life if not hastened by request If the concurrence of the Obligor and a stranger be necessary it ought to be done in convenient time if concurrence of the Obligee and a stranger it ought to be hastened by request And alwaies if the Act to be done is not for the benefit of the Obligee
if it appeare to the Court that an action is not maintainable without the doing of it there the doing of it must be averred as if an Abbot sole grants an annuity to J. S. Pro Consilio c. in action brought against the successor he must averre that he had given Counsell c. to the use of the House otherwise if against the grantor Englefields case 34. Eliz. in Scaccario fol. 11. SIr F. E. covenanted to stand seised to the use of himselfe for life the remainder to his Nephew Proviso that it shall be voyde upon tender of a Ring by him after he was attainted of Treason and all his inheritances forfeited by Statute the Queene leaseth to the defendant for forty yeares by Statute it was inacted that every one who had a patent of land of a person attainted shall exhibit it into the Exchequer within two yeares to be Inrolled one authorized by Letters patents in the name of the Queene tenders the Ring in the life of Sir Fr. the Queene bringeth Intrusion 1. Resol When the Q. tenant pur auter vie leaseth for yeares this is good without recitall of her estate for it is lesse then her estate as if she grant Totum statum suum for there is no torte and she is not deceived 2. That this condition is given to the Q. but object 1. That it was inseparable from Sir Fr. for his intent was the substance of it and his intent cannot be transferred over 2. Naturall affection is made the Judge whether the Nephew deserve that the use shall be revoked and in so much that naturall affection cannot be transferred no more can this condition which was created by naturall affection and naturall affection determineth the estate 3. Although the benefit of this collaterall condition be given to the Q. the performance is not As to the first and second It was answered that the condition is onely the substance and all the residue is but a flourish and that is not an inseparable condition for any one may tender a Ring as well as he As to the third The performance is given to the Q. as incident to the Condition 4. It was objected that the estate of Sir Fr. was not subject to the condition because he was not possessed by limitation of use and by 27. H. 8. but he was seised of his auncient inheritance ergo the lease shall not be avoyded in the life of Sir Fr. It was answered that Sir Fr. was seised by limitation of use and that the lease shall be avoyded 5. It was objected that the Q. having made this lease being seised pur auter vie by her owne act she shall not defeate it after It was answered that the Q. shall avoyde it for her grant shall not inure to two intents 1. to make the lease c. 2. to suspend the condition and when the Q had two rights she shall not loose both without speciall words 6. It was objected that this tender ought to be found by office because matter in paijs and if it be false the party hath no remedy because the certificat is not traversable It was answered that Certificats which informe the Q. of her title are traversable but Certificats which are in nature of Trialls are not also by the Tender the uses are determined and by the attainder and the act of 33. H. 8. the land is vested in the Q. 7. It was objected that the conveyance was voyd because it was not inrolled within two yeares as the Statute requires and so Sir Fr. was seised in fee and the lease unavoydable It was answered that it was tendred in the Exchequer to be inrolled within two yeares which is all the Statute requireth the forfeiture was established by a speciall act 35. Eliz. The Case of Swannes 34. Eliz. fol. 15. A Game of Swannes in a common River are seised into the Queenes hands upon office found I. Y. pleads that Abbas c. gavisi fuerunt totoproficuo omnium cignorum in aestuaria praedict indificantium and makes her selfe title to them prayeth an ouster Le manie All White Swannes in a common River who have gained their naturall liberty may be seised for the King because they are Volatilia regalia but a Subject may have them in his owne River and if they escape into a common River he may take them againe upon fresh persuite Cignets shall be divided betweene the owners of the Swannes equally but upon the Thames the owner of the Land shall have the third by the custome whosoever hath a Swan-marke must have it by grant of the King or prescription and he may grant it over and he ought to have freehold of five Marks per annum by the Statute of 22. E. 4. c. 6. A man may prescribe to have Wyld Swannes but not as here but that the Abbot c. have used to take of them to their owne use and therefore adjudged against I. Y. A Swanne may be an estray and so cannot any other fowle Sir Thomas Cecils Case 40. Eliz. in Scaccario fol. 18. SIr T. C. entered into an obligation to the Queene to performe Covenants and shewed in the Exchequer-Chamber matter of equity to discharge him of the said Debt according to the Statute of 33. H. 8. c. 39. 1. Resol that Branch of the Statute which giveth liberty to the Subject to plead matter in equity in barre of Debt due unto the King extendeth to Debts due at the common Law as well as by this Statute because this Statute gives more speedy remedy for them and so within the purview thereof and so the other proviso of equall charging of Lands Subject to Deb. t s of the King is generall 2. The Court of Exchequer-Chamber in this case may decree upon English bill although that Processe be in the Exchequer at the common Law because to that purpose they are as one Court 3. An obligation to performe Covenants after Breach of them is within the Statute The Lord Andersons Case 41. Eliz. in Scaccar fo 21. TEnant in taile is bound by recognizance to I. S. who is attainted Tenant in taile dyes his issue aliens Bona fide the King shall not extend these Lands by the Statute 33. H. 8. c. 39. 1. Before that Statuâ—e the King could not extend Lands in the hands of the issue in taile for the Debt of his auncestor because he was bound by W. 2. De Donis 2. By that Statute Lands are extendable in the hands of the issue in taile for Debt due to the King by judgement recognizance obligation or other specialty and other cases are out of the Statute 3. The Alienee Bona fide is not within the Statute because favoured as a purchasor and he is a stranger to the Debt and comes in upon good consideration and benefit is given against the issue in taile which was not before 4. Debts due to a Subject and forfeited to the King are not within the Statute for they are not due originally
the King dyes the Father is King and the Son Duke by the said Statute against the rules of Law 2. The Lands cannot be so annexed to the Duchie that they cannot be severed without Statute 3. The estate is limitted to cease when the King hath no first begotten Son and to revive when he hath which cannot be without Statute 4. It should be absurd that six being then created Earles that their creation should be firme and the Creation of the Prince void 5. In the Charter there is De communi consilio Praelatorum c. and in the end Per ipsum Regem totum concilium in Parliamento such an Act as beginneth Rex Statuit and alwayes reputed for a Statute shall not be drawne in question but if it be Rex ex assensu the Commons or Lords omitting the other part it is voide 2. The said Charter having the force of a Statute is good without aid of any other Statute and although the King in his Scire facias recite another Act for thâ—s surplus the writ shall not abate 3. The Prince had the Dukedome in Fee for it is an inheritance because 21. E. 3. 41. the Princesse was indowed and it is no estate taile because it is not limitted of what body it shall come but onely that they shall be Heires to the black Prince 4. Against a generall Statute Nul tiel recorde shall not be pleaded for although it be lost yet the Judges ought to take notice of it and this is such an one which concernes the Prince and the Statute of confirmations doth not extend unto it 1. Because this hath a speciall relation to certeine defects as Misnosiner c. 2. Patents are made good onely against the King saving the right of others therefore the Princes right is saved In a Scire facias the King or Prince may reply but the most formall way is for the Attourney to replie as here he did No Sonne of the King but his first begotten shall be Duke of C. although he be Heire apparent to the Crowne Calyes Case 26. Eliz. Banco regis fo 32. 1. REsolved that to maintaine an action against an Inkeeper for goods lost c. it ought to be a common June 2. He ought to be a Passenger therefore a Neighbour shall not 3. An inholder shall not answer for any thing but that which is Infra hospitium therefore if a Passenger require that his Horse be put to grasse the inholder shall not answer if he be stollen otherwise if he require it not 4. There ought to be a default in the Inholder or his Servants therefore if a Guest bring one with him who stealeth the goods the Inholder shall not be charged otherwise if the Hostler appoint one with him in his Chamber who doth it But an inholder shall not be charged if he require the Guest to put his goods in a Chamber and he leaves them in the Court but it is no excuse to the Inholder that he delivered the Key of the Chamber to the Guest or that no goods were delivered to him 5. The Hostler shall answer for Charters if they be stollen but not if a Guest be beaten and all this appeares by the Writ and the words of it Paynes Case 29. Eliz. com banco fo 34. A Feme Tenant in taile taketh Baron and hath issue who is heard to cry and dyeth the Feme dyeth without issue the Husband shall be Tenant by the courtesie for although the state of the Feme be determined yet it is Tacite implied in the guift that every Husband of a Feme inheritable to the said estate shall have the Land for his life after the death of the Feme if he be intitled to be Tenant by the courtesie If a Feme be delivered of a Monster this doth not intitle the Husband to be Tenant by the curtesie otherwise it is if the issue had humane shape but is blemished if a Feme be ripped and the issue taken out of her Wombe the Baron shall not be Tenant by the curtesie otherwise it is if the issue which they had dyes and Lands discends after A man shall not be Tenant by the courtesie but where his issue may inherit as heire to the Feme therefore he shall not be of a possession in Law because there he makes title from the auncester of the Feme and not from the Feme Barretry 30. Eliz. fol. 36. A common Barretor is a common maintainer of Suites or quarrells in Courts or in the Countrey As first in disturbance of the peace Secondly in taking and keeping of possession with force or deceite Thirdly by false calumniation and sowing of Quarrells but to indite him of it it ought not to be that he hath done so twice or thrice but that he is a common doer of them Grieslies Case 30. Eliz. com banco fo 38. BY the custome one is chosen in a Leete to be Constable who refuseth and departeth out of the Court the Steward imposeth a Fine of 5. l. upon him for which the Bailiffes of the Lord distreine and he brings a replevin 1. Resolved every Judge of record may assesse a reasonable fine upon any man who makes contempt or disturbance to the Court but a Judge who is not of record cannot 2. This fine heeds not to be afferred because the Statute of Mag. Ch. speakes of Amerciaments and not of Fines for a fine is imposed by the Court and an Amerciament by the Jury therefore the Judgement in an Amerciament is generall Quod sit in misericordia and after upon estreits directed to the Coroners they are afferred and the Statute is that a Noble man shall be Amerced by his Peers which is not used at this day because it is reduced to a certeinty Viz. A Duke to 10. l. and others to 5. l. but an Amerciament of an Officer of the Court or he who hath execution of Writs shall be afferred by the Court so of any who is Judge as Suitors If a Juror appeare and is adjourned to a day of which he makes default this shall be inquired by his Companions for he shall be fined to the value of his Land per annum which the Court cannot know 3. A distresse may be taken for a fine without custome or for an Amerciament which is lesse Whittinghams Case 45. Eliz. fo 42. IT was resolved that if there be Lord and Tenant an Infant and the Infant make a feoffement in fee and execute the same by livery of seisin by his owne hands and after dye without heires in this case the Lord shall not have the benefit of the escheate and the Feoffement is unavoidable There be three manner of privities Viz. privity in blood 2. Privity in estate 3. Privity in Law Privities in blood as heires in blood privity in estate as joyntenants Baron and Feme Donor and Donee Lessor and Lessee c. privities in Law as Lord by escheate Lord of a Villaine c. If a Lessee for life
make a Lease for yeares and after enter into the Land and make wast and the Lessor recover in an Action of wast against the Lessee for life he shall avoid the Lease for yeares made before the wast committed But if a Lessee for life make a Lease for yeares and after enter and make a feoffement in fee the Lessor shall not avoid the Lease for yeares and so if a Tenant make a Lease for yeares and after is attainted of felony or dyeth without heire the Lord by escheate shall not avoide the tearme But because the feoffement in the case at barre was executed by Letter of Attourney it was resolved to be void and the Land escheated to the Queene Jehu Webbes Case 6. Jacobi com banco fo 45. THe King grants the office of the Kings Tennis plaies at W. to one who being disseised brings an assize The Patent shall have a reasonable construction not onely when the King himselfe playes but when any of his Houshould As if a Commission be made to take Singing-Boys in a Cathedrall-Church for the Kings Chappell those that Sing there for their pleasure cannot be taken but such as get their living by it There were but two manner of assizes at the common Law assizes De libero tenemento and De communia pasturae but for no other common but for this onely there is a Writ in the Register But the Statute of W. 2. c. 25. giveth it De proficuo in certo loco capiendo in lieu of a Quod permittat and although that there offices amongst other things are named yet an assize lay of an office at the common Law and although that no Tenant for life may have a Quod permittat yet an assize did lye for him but that is to be understood of an office of profit for it lyeth not of an office of charge Originall Writs made by Statute cannot be altered without Statute In an assize of a new office it ought to be shewed what profit belongs to it but not for an ancient office because that is sufficiently knowne Syms Case 6. Jacobi fo 51. TEnant in taile levyeth a fine with warranty and dyeth the warranty discends upon the issue of him in the remainder inheritable to the taile and another the issue in taile brings a formedon and is barred for all for the warranty is intire and barreth every one upon whom it discends of all his right as if one seised of three acres maketh a feoffement of one with warranty and dyes having issue two Daughters who make partition the Mother purchaseth the part of one brings dower against the feoffee who Vouches the Daughters shee shall recover all the other acre of the other Daughter if Tenant by the curtesie make a feoffement with warranty and dyes and his Sonne heire of the Feme recovers and assets discends after the feoffee shall have a Scire facias to have the Land first recovered by the Statute of Glouc. c. 3. but if assets descend to the Heire in taile bound with a lyneall warranty after recovery in formedon the Feoffee shall have a Scire facias to have the assets for otherwise if the recoverer alien the assets the issue of him will recover the Land in taile againe but in these cases the discontinuee ought to confesse the title of the Demandant and pray that if assets descend after they may discend unto him for if he plead a warranty and assets this is peremptory unto him if it be found that assets did not discend for the Statute is that a Scire facias shall issue out of the rolls of the Justices and in this case there is no ground for the Scire facias in the Record but in this case if the issue in taile pleads no assets and assets are found but not to the value the tenant shall have a Scire facias to recover the assets discended after for that false plea of the Vouchee Warranty and estoppell discend upon the heire generall and warranty barreth although that he upon whom it discends claimeth not by him that made it but so doth not an estoppell but estoppells with recompence binde the right of one who claimeth not by him that made it Roger Earle of Rutlands Case 6. Jacobi fo 55. THe King grants the pannage and herbage of a Park to M. for life and reciting this grants it to the Earle of Rutland for his life 1. Resolved the King hath three manner of inheritances 1. Some which he cannot excercise himselfe and cannot grant them in reversion or remainder as Corodies and Churches of which he is Patron 2. Others which he cannot excercise himselfe but may grant them in reversion or remainder as offices 3. Others which he may excercise himselfe and may grant as Lands Houses c. 2. The King here is not deceived for when he reciteth here that M. had for life and grants for life this inureth as by Law it may that is as a grant in reversion 3. In this case the grant to the Earle shall commence after the determination of the estate of M. and if the King grants Land to one and his Heires Habendum to him and his Assignes it is good and the Habendum shall be rejected for the honour of the King See the Lord Chandos case in the sixth Booke and when a Charter of the King may be taken to two intents good in many cases it shall be taken to such intent as is most beneficiall for the King but if it may be taken to one intent good and to another void then for the honour of the King and benefit of the Subject then it shall be taken so that it may take effect Beechers Case 6. Jacobi fo 58. B. Plaintiffe in Debt Se retraxit by attourney and by the judgement is not amerced he brings eror 1. Resolved a Retraxit ought to be in proper person for at the common Law every one who appeared ought to come in proper person and make his attorney after by license of the Court but if it be without writ he cannot without a writ of Attornato faciendo In cases where one may make an attourney but for contempt is bound to appeare in person if he appeare by attourney this is not error because the court may dispens with the contempt otherwise where he cannot appeare by Law by attorney as here for if he appeare by attourny this is error 2. B. ought to be amerced if upon a Nonsuite a Fortiori upon a Retraxit and although it is for his advantage yet he may assigne it for error because the judgement is not perfect and because it is for the advantage of the King and it shall not be amended because the act of the Court. 3. Where one disclaimes he shall not have a Writ of error because he hath confessed that he had no right otherwise it is upon a Retraxit for this is but a barre of the action à fortiori here where it wat void done by an attourney
the prochein avoidance be within the tearme the grant is good for yeares cannot determine but the effluxion of time and the Law implyes this limitation if the Church doe come voyd during the tearme For expressio eorum quae tacite insunt nihil operatur Likewise if a lessee for yeares grant a rent charge and after surrender yet for the benefit of the grantee the tearme hath continuance although in rei veritate it is determined and the grantor himselfe shall not derogate from his owne grant to make it voyd at his pleasure The six Carpenters Case 8. Jacobi fol. 146. IT was resolved when entry authority or license is given to any by the Law and he abuse the same in this case hee shall be a trespassor ab initio But where entry authority or license is given by the party and he abuse the same there he shall be punished for this abuse but he shall not be sayd to be a trespassor ab initio and the diversity is this because the Law doth judge by the act subsequent quo animo or to what intent hee enters acta exteriora judicant interiora secreta But when the partie giveth authority c. to doe a thing he cannot for any subsequent cause punish the same 1. The Law doth give authority of entry into a common Inn Taverne c. 2. To a Lord to enter and distreine 3. To an owner of the soyle to enter and distreine dammage feasant 4. To him in reversion to view if waste be committed 5. To a commoner to enter into his Land to view his Cattell c. But if hee that enters into an Inn c. doe trespasse or take any thing away or if the Lord that distreines for rent or owner for dammage feasant labour or kill the distresse or he that enters to view wast bruse the house or stay there all night or if a commoner sell Tymber in these cases and such like the Law judgeth that hee entred for the same purpose and therefore the act that doth demonstrate this is to be a trespasse and he shall be a trespassor ab initio It was resolved that the non-seasons or not doing of a thing is not any trepasse where the Law giveth license or authority to enter viz. to deny to pay for Wine in a Taverne is not a trespasse but the Taverner may have an action of debt 12 E. 4.8 If a Taylor overvalue the making of a Garment and the necessaries thereunto he shall not have an action of debt for his owne values unlesse it be specially agreed upon before but he may detaine the Garment untill he be payd or satisfied and if the party sue for the same the Jury shall set downe the value and the Taylor shall have no more but be barred for the rest Likewise an Ostler may deteine an Horse c. Tender of sufficient amends for dammage fesant befor the distresse taken is good and the taking of a distresse afterwards is wrong tender after the taking of a distresse and before the impounding maketh the detaining wrong but not the taking but tender after the impounding commeth too late for then the cause is put to the tryall of the Law Edward Althams Case 8. Jacobi fol. 159. In dower and pleaded N. Seised in fee of Lands in W. and G. deviseth the Lands in G. to his younger Son for life it was agreed betweene the eldest Son and the Widow of T. N. that shee should release her dower in W. shee releaseth unto him omnes actiones demand c. necnon omnem dotem titulum dotis c. de aliquibus terris in W both the Sons dye shee brings dowre of the Lands in G. and judgement given for the demandant 1. Resol A release of all actions to him in the reversion barreth not dowre because shee had no cause of action against him but against the tenant of the free hold but a release of all her right to him in the reversion extinguisheth dowre for a release of right beareth actions but a release of actions barreth not a right if there be other meane to come to it otherwise not as if the disseisee release all actions to the heire of the disseisor the right is extinct otherwise it is if the release be to the disseisor and a discent after or if the release be to the lessee for life of the heire a release of all actions reall and personall is no barr in a Writ of errour but a release of a Writ of errour is a release of actions is no barr to have execution if he be not put to a Scire facias a release of a thing due before the time of payment thereof is good Quaerela is more then an action for by that the cause of action is released by release of suites executions are barred for none shall have execution without suite for it so it is of all duties but a release de quaerelis infectis in that case barreth not dowre by release of titles dowre is barred and by release of demands which is the most ample release of all 2. The collaterall agreement is not of any force or effect but generall words ought to be qualified by apt words contained in the same Deed as in this case mihi contingent per mortem dicti T. viri mei de aliquibus terris in W. c. and so extends not to any Lands in G. but restraineth the generall words to the Lands in W. onely Quando carta continet generalem clausulam posteaque descendit ad verba specialia quae clausuâ—ae generali sunt consentaneae interpretanda est carta secundum verba specialia As if a man grants a rent in manerio de D. precipiendum in 100. Acres parcel thereof with clause of distresse in the 100 Acres the rent shall issue out of the 100. Acres onely Arthur Blackamores Case 8. Jacobi fol. 156. THe Defendant is named Gent. in the originall Writ but by negligence of the Cursitor hee is outlawed by the name of Knight this is amendable at the common Law but in case of the King default of the Court was amendable at the Common Law as erroneous entrance of the continuance essoyne c. and any part of the Record the same Terme and therefore diverse Statutes of amendments were made one of the last whereof was 8. H. 6. cap. 12. which was more large and extends to processe and to seven other things to Records Pleas Parolls Warrants of Attorney to Writs originall and judiciall Pannels and Returnes that is where it was the misprision of the Clerke and onely the default of the Clerke by negligence is amendable but not by his nescience as if an action be brought against executors in the debet and detinet or if it be false Latine but if a word which is not Latine be written for a Latine word this is amendable as Imaginavit for Imaginatus est In a Writ of trespasse against diverse if it abate for default against one it
lyeth against Executors for the Testators Debt Page 352 VVhere a man may wage his Law Page 353 VVhat words shall be adjudged a good consideration Page 354 VVhat Offices grantable for yeares and by what Acts Offices may be forfeited and where the King may seise without Scire facias Page 355 356 Copy-hold estates are within 4. H. 7. of fines Page 356 Disseissor of Copy-hold levyes a fine what time the Lord hath ib. VVho may enter without command to avoid a fine Page 356 357 A plea by an administratrix of fully administred must be certeine Page 358 VVhere an Allegation generally of Covin is good ib. A commoner Copy-holder may have an Action of the Case for the losse of his Common so he may distreine damage feasant ib. A Baron of Scotland shall be tried by Commons of England Page 359 See the diverse Resolutions of difficulties arising upon the Indictment of the Lord Sanchar and others Page 359 360 Cases in the Court of Wards The Kings release doth not extinguish a service inseparable Page 361 VVhen the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be ib. VVhere the particular estate is out of 32. H. 8. no wardship accrueth to the King by advancement of him in remainder otherwise of a reversion for he is Tenant Page 362 VVhat words are sufficient to create an estate taile Page 363 The Kings possibility shall not devest a VVardship vested Page 364 The reviving of an ancient Tenure preferred before the reservation of a new ib. By death of the father before livery sued after tender The King looseth primer seisin but no meane rates Page 365 Of a fruitlesse reversion a wardship but not primer seisin ib. Where the saving in 32. H. 8. giveth ward and primer seisin Page 366 A Mensnalty cannot be suspended in part and in esse for part by the act of the party but it may by Act of Law or a third person ib. There are foure manner of Avowries Page 367 What Act is a good delivery of a Deed or of seisin of Land ib. One may have an estate taile which cannot discend Page 368 Three manner of Confirmations Page 369 THE TENTH BOOKE WHat things requisite to the Founding of an Hospitall see at large Page 371 An estate taile barred by recovery in value without recompence Page 374 A Feme Covert shall not loose her Land by any conclusion without examination upon a Writ in Court ib. Tenant for life suffers a recovery and he in remainder in taile is vouched the reversion in fee is barred Page 375 The devise of a terme to one for life the remainder to another for life is good as an Executory devise Page 376 The first Devisee cannot barre him who hath the Executory devise ib. Assent to the first devise is an assent for all ib. Such an executory devise not grantable over ib. but it may be extinguished by release to the first Devisee ib. Qui destruit medium destruit finem Page 377 If a Recusant grant the next avoidance before conviction it is void by 3. Jacobi for he is disabled from the beginning of the Session c. Page 378 Covin shall not be presumed if it be not averred ib. A private Act shall be taken as it is Pleaded ib. What grants of Offices by a Bishop are void by 1. Eliz. except for twenty one yeares or three lives and what Circumstances requisite Page 380 Praerogativa Regis c. 15. excepts Knights fees and advowsons and indowments all other appendants now passe by grants and so doe they in Case of Restitution Page 381 A Corporation aggregate may make a surrender in Law not in Deed Page 382 The Jurisdiction of the Marshalsea and the reasons thereof Page 382 383 About 4. E. 3. the Court of Kings Bench became resident Page 383 A good diversity where the Court hath Jurisdiction but proceed In verso ordine and where they have not Jurisdiction there all they doe is Coram non judice and void Page 383 384 Diverse abstruse points resolved some at the common Law and severall upon the Statutes of 32. 34 H. 8. of wills Page 385 386 VVhat Colour is and where it must be given Page 388 VVhere a privy interest although he claime but part must shew the first Deed except he claim meerly by Law Page 388 389 VVhere a man may have a freehold discendible Page 390 A warranty barres no estate which is not displaced at the time of c. ib. A warranty cannot inlarge an estate where it may be given in evidence Page 391 VVhat Obligations made to Sheriffes are within the Statute of 23. H. 6. Page 391 Forma verbalis Forma legalis or Essentialis Page 392 393 The time of granting a Tales and when it is well granted Page 396 397 The proper place of a reservation is after limitation of the estate Page 397 Increase of services is betweene very Lord and very Tenant Page 398 VVhen Lands shall be said to be concealed from the K. 398 399 A man shall have costs in all cases where hee recover dammages Page 400 Where a man shall recover damages and costs also ib. Where to the writ of Inquiry and to the verdict and judgement ib. Where insufficient verdict may be supplyed by a writ of Inquiry and where it cannot a good difference Page 401 A difference between auncient Corporations and new in matter of Misnosmer Apices Juris non sunt Jura Page 401 402 Which is the legall time of payment of Rent Page 402 If payment be in the morning and the lessor dye at noone this is satisfactory against the heire but not against the King ib. Where the lessee shall hold rent free for a quarter Page 402 Where Damages may be assessed intirely and where not Page 403 404 What words passe under the name of Latine Page 404 Where by death of one of the Plaintiffes after summons and severance the writ abateth divers good diversities Page 404 405 A Qu. impedit praesentare ad medietatem Ecclesiae where good ib. Cases upon the Commissions of Sewers Where the Commissioners may subvert a Cawsey and where not Page 406 If a wall be subverted by a sodaine inundation the Commissioners may taxe all equally who have damage thereby ib. Otherwise if it come by neglect of him who ought to doe it ib. If the Commissioners have power to make a new River and a generall taxe so much upon every Towne for doing thereof Page 407 What is a good revocation of old uses and limitation of new Page 409 THE ELEVENTH BOOK A Difference between a disability absolute and temporary or personall Page 411 The grant of the office of Auditor to two is good Page 412 What offices grantable in reversion ib. Where the Jurors may assesse damages severally Page 413 Where one shall have an attaint that is a stranger to the issue ib. Where a writ of Enquiry shall issue Page 414 The plaintiffe shall have judgement de melioribus damnis ib. The conclusion of a plea is not traversable Page 415 In every issue there must be an affirmative and a negative ib. The Impropriation sufficient in the life of the Incumbent ib. VVhere the witnesses are not punishable for perjury Page 416 Perpetuall unity a discharge and what requisite thereunto ib. VVhat prescription for tithes of houses is good ib. A customary Mannor may be holden of another Mannor Page 417 VVhat variance in the name of a Corporation doth vitiate Page 418 VVhat devise of socage by tenant is Capite is good Page 419 An Ejectione firmae of tithes without shewing their kinds not good ib. If a deed be rased the obligor may plead Non est factum Page 420 A diversity where it is rased by the obligee himselfe and where by another ib. VVhere Clergy allowable at the Common law and where at this day copious and excellent matter Page 421 VVhere an Errour lyeth not before the finall Judgement Page 423 A fine by the Stewart of a Mannor where it is well assessed Page 425 VVhere the Lord may destreine for it without prescription ib. VVhere an action shall abate in part and where for the whole Page 426 Notwithstanding the exception trees remaine parcell of the Inheritance ib. A thing in possession cannot be parcell of a reversion upon an estate for life Page 427 None may be prohibited by the common law to use any trade Page 428 An ordinance by a Corporation against law is void ib. How an Ejectione firmae must be brought Page 429 Although the dammages are not well assessed yet the Plaintiffe may have judgement ib. Much variety of Learning touching Recusancy and upon the severall Statutes concerning them Page 429 430 Master and Fellowes of a Colledge restrained to grant by 13. Eliz. what statutes doe binde the King Page 432 Some grants to the King void and some voidable Page 433 VVhere acceptance of Rent doth barre and where not Page 434 Tenant in taile after possibility of c. hath a greater estate in quality then tenant for life not in quantity Page 434 435 VVhat priviledges belong to his estate Page 435 A lease without impeachment of wast what passeth thereby ib. A monopoly is against law and hath three incidents against the weale publique Page 436 What fees belong to the office of Master of the Ordnance Page 427 In the Kings Case the law maketh a privity to be accomptable ib. For what causes a Citizen may be disfranchised Page 438 The 3. Book fol. 9. Dowties Case A Difference where the first certainty is false in a grant and where the first is true and the second false Page 439 Where lands are in the Q. by 33. H. 8. c. 20. without seisure ib. Fol. 11. Sir William Harberts Case What remedy for debts at the common law and when the body and lands became liable thereunto Page 440 44â— In all actions vi et armis the body was subject unto Imprisonment and so for debt at the Kings suite Page 441 The heirs of the conâ—isâ—ser shall not have contribution against a purchasor ib. Changes reall doe not survive but personall doe Page 442 Three Errours there moved but not resolved ib. FINIS
Lands to the use of himselfe and of the heires males of his body And for default thereof to the use of the Queene her heires and successors After the Tenant in tayle in possession suffereth a common recoverie with voucher And whether it was a barre to the issue in tayle was the question And it was adjudged that the issue in tayle was barred for good considerations are too general to raise any use without speciall averment that valuable or other good consideration was given Resolved that the Land should continue in his name and bloud is not a consideration to raise a use to the Queene though the limitation to her were for the preservation of the tayle against discontinuances and barres for there wants quid pro quo Resolved if he had said in consideration that the Queene is the head of the weale publique and hath the care and charge as well to preserve peace as for to repell hostility yet 't is no good consideration for Kings ex officio ought to governe their Subjects in tranquillity which is implyed in the word King And admit the consideration had been sufficient to raise a use to the Queene yet that would not preserve the estate tayle by force of the Act 34. H. 8. for no estate tayle is preserved by the said Act except the same estate tayle be of the creation or provision of the King and not where the estate tayle is given or created of a common person without provision of the King as may appeare by the preamble of the Act. Resolved that before the Statute of 34. H. 8. a common recovery barred a tayle created by the King Lanes Case 29. Eliz. fo 16. THe Queene seised of a Mannor in right of her Crowne by her Steward granted coppie-hold Lands parcell thereof to one by coppie according to the custome in Fee And after the Queene under the Exchequer Seale made a Lease of the same Lands to another for 21. yeares who granted the same Tearme to the coppie-holder and after the Queene reciting the Lease for yeares granted the reversion thereof in Fee the Tearme of 21. yeares expired The Patentee of the reversion entreth upon the coppie-holder and the entrie was adjudged good Resolved that the Lease under the Exchequer Seale was good by the usage there for the course of every Court is as a law of which the common law takes notice without alledging of it in pleading and every Court at Westminster is bound to take notice of the Customes of other Courts otherwise of Courts in the Countrey and the order of Exchequer is to make Leases by Committimus such land Resolved that the estate of the Coppie-holder was determined by the acceptance of the Lease for yeares And so it was adjudged against the Coppie-holder for notwithstanding that the Coppie-holders estate is taken to be but an estate at will yet the custome hath so established the estate of the Coppieholder that he is not removeable at the will of the Lord so long as he performes his customes and services and by the same reason the Lord cannot determine his interest by any act that he can doe And so it hath been adjudged many times And the aceptance of this Lease was the proper act of the Coppie-holder Resolved that by the severance of the free-hold from the Mannor the Coppiehold estate is not extinguished Baldwyns Case 31. Eliz. fo 23. THings which lye in grant and take their essence and effect by delivery of a Deed without other ceremony as rent or common out of Lands c. by the premisses of the Deed to one and his heires habendum to the grantee for yeares or life this habendum is repugnant to the premisses for the Fee passeth by the premises by the delivery of the Deed and therefore the habendum is voyd And when a man giveth Lands by Deed in Fee by the premisses habendum to the Lessee for life there the habendum is voyd and when livery is made the effect of the Deed shall be taken the most strongly against the Feoffor and the best for the Feoffee When a ceremony is requisite to the perfection of an estate in the premisses limitted and to the estate limitted in the habendum no ceremony is requisite but onely the delivery of the Deed although the habendum be of meaner estate then the premisses the habendum shall stand good and qualifie the generalitie of the premisses as a Fee granted in the premisses habendum for yeares it is for yeares and no inheritance Note There is a diversity betwixt the estate implied in the premisses and expressed as if A. grant a rent to B. this is an estate for life but if the habendum be for yeares this is good and qualifies the implication of the premisses Case of Bankrupts 31. Eliz fo 25. REsolved that a grant or assignement of goods by a Bankrupt after the Commission awarded which is matter of Record of which every one ought to take notice and though to a Creditor in satisfaction of his debt is voyd and that a sale of such goods by the Commissioners is good Which sale by the Statute of 13. of the Queene ought to be equall to every one rate and rate like according to the quantity c. And the Court resolved that the proviso in the said Statute concerning gifts bona fide doth not make any gift good but excludes them out of the penalty c. Commissioners may sell by Deed without Inrollment and though they have not seene the goods agreed that the distribution ought to be severall not joynt for the one debt may be greater then the other and in this case the Jury found that the Commissioners sold the goods to three Creditors joyntly but further that the Bankrupt was indebted to them in 273. pounds which shall be intended a joynt debt and so good Resolved that the act giveth benefit to such as will come and not to them that refuse vigilantibus non dormientibus jura subveniunt and every Creditor may take notice of the Commission being matter of Record Bettisworths Case 33. Eliz. in communi Banco fo 31. A Lease for yeares was made of one Messuage one Close called Raynolds and of divers other Lands in Dale and afterwards the Lessee being in the house the Lessor entred into the same Close and maketh a Feoffment of the Messuage and of the Lands therewith demised and maketh livery in the same Close and afterwards the Lessee reentreth into the said Close And if this was a good Feoffment and livery of seison of the said Close the Lessee nor any for him being in the said Close was the question And it was adjudged that the livery and seison was voyd as well for the Close as for the Messuage and the other Land therewith demised For the Possession of the Messuage which is his Castle is a good possession of the Lands therewith demised and it matters not whether livery be made on the Land within view of the
prescribe In modo decimandi but not In non decimando And the reason is because he is not except in speciall Cases capable of Tythes at the common Law before the Statute of 32. H. 8. Cap. 7. And therefore without speciall matter shewing it shall not be intended that he hath any Lawfull discharge and in favour of the Holy Church although it may have a lawfull comencement the Law will not suffer this prescription In non decimando to put it to the Tryall of lay men which sooner will straine their conscience for their private benefit then render to the Church the duty which belongeth to it A spirituall person that was capable of Tythes at the common Law in pernancy may prescribe to be discharged of Tythes generally or to have a portion of Tythes in the Land of another Before the Counsell of Lateran every man might give his tythes to any spirituall person that he would and if the Lands of the Bishop were discharged in his hands absolutely by prescription the demising it to a lay man cannot make it chargeable and the Bishop might reserve the greater Rent And in discharge of Tythes the Judges of our Law doe know that the Ecclesiasticall Judges will not allow any such allegation and therefore a Traverse Absque hoc quod judices placitum c. recusarunt is insufficient for the refusall is not materiall for the party might have a prohibition before any plea pleaded by him but in some Cases the refusall is traversable as t was adjudgd in Morris and Eatons Case where t was pleaded that the plaintiffe did not read the Articles c. and that the Ecclesiasticall Judge refused this Plea But the truth is a man may prescribe that hee and all others whose estate he hath in the mannor of D. time out of remembrance have paid to the parson of C. for the time being one certaine pension yearly for the maintenance of Divine service there in contentation of all Tythes renewing or happening within the same Mannor and prescribe in respect of the pension payd c. to have all the Tythes within c. and this was adjudgd good in Banco Regis Mich. 39. Et. 40. El. Rotulo 199. And that a lay-person may sue for the Tythes c. For at the beginning it shall be intended that the Lord was seised of the whole Mannor before any tenancy was derived out of the same and then by composition or other lawfull meanes the Lord had all the Tythes within the Mannor for the said Pension paying to the parson and the Law intends it was for Divine service Et pro bono Ecclesiae the reason of whch intendment is the continuall usage time out of remembrance And upon such speciall matter a man might have Tythes as appurtenant to a Mannor for he prescribes in a Que estate in the Mannor and therefore cannot have them in grosse but t was adjudged Winscombs Case in a prohibition that a man cannot prescribe generally in him and all those c. to have Tythes appurtenant to a Mannor without speciall matter shewne because Tythes are due Jure divino The Arch-Bishop of Canterburies Case 38. Of the Queene fo 46. A Religious house in M. was given to E. 6. by the Statute of 1. E. 6. a Rectory which was impropriated to it was granted to the Arch-Bishop of Canturbury who leased to the Defendant and Land within M. parcell of the said Colledge came to the Lord Cobham and from him to the Plaintiffe who shewes that the Master of the Colledge was seised of the said Land and Rectorie Simul semel as well at the making of 31. H 8. as of 1. E. 6. Resolved that this Colledge came to the King by 1. E. 6. onely for when 31. H. 8. speakes of dissolution renouncing relinquishing forfeiture giving up which are inferior meanes by which c. or by any other meanes cannot be intended of an act of Parliament which is the highest manner of conveyance that can be and the makers would have placed this in the beginning if they had intended it Bishops are not included within 13 of the Queene which begins with Colledges Deanes and Chapters c. Also 1. E. 6. Enacts that all Colledges by this Parliament shall be in actuall possession of the King which last act being of as high nature as the first it cannot come to the King by 31. H. 8. and it was never pleaded that of Colledges which came by 1. E. 6. the King was seised Vigore of the Statute of 31. H. 8. Resolved that neither the Act nor the meaning of 31. H. 8. extends to other Colledges then to those which came to the King by 31. H. 8. for it should be absurd that a Branch of the act of 31. H. 8. should extend to a future Act of which the makers of 31. without a spirit of prophecy could not have foreknowledge and the Act of 31. concludes in as large manner as the late Abbots c. which late as it hath been agreed extends onely to those to be dissolved by 31. Resolved admitting that the Colledge had come to the King by 31. H. 8. that such a generall allegation of unity of possession of the Rectory and the Land with it was not sufficient for no unity shall be sufficient but lawfull and perpetuall unity of possession time out of minde as 't was adjudged in Knightly and Spencers case and that the generall allegation of the plaintiffe that the Master of the Colledge at the making of 1. E. 6. held the Land discharged is not good without shewing how either by prescription composition or other lawfull meanes as 't is adjudged in the Bishop of Winchesters case otherwise if the Land had come by 31. then by force of the said branch of discharge such generall allegation had been good Resolved that no Ecclesiasticall house except religious was within the Statute of 31. H. 8. Resolved that though 1. E. 6. saith that the King shall have the lands of Colledges in as ample and large manner as the said Priests c. enjoyed the same yet these generall words doe not discharge the land of any tythes for they doe not issue out of the land for a Prior had tythes against his own Feoffment of the Mannor and 't is no good cause of prohibition to alledge unity of possession in a Colledge which came to the King by 1. E. 6. as 't is upon 31. H. 8. in Abbyes c. For the Statute of 1. E. 6. hath no such clause of discharge of payment of tythes as 31. hath and therefore such perpetuall unity will not serve upon 1. E. 6. So 't was likewise resolved betwixt Greene and Buffkin Sir Hugh Cholmleys case 39. of the Queene fo 50. TEnant in Taile the remainder in taile the remainder bargaines and sells the Land and all his estate to J. S. to have for the life of Tenant in taile the remainder to the Queene c. upon condition that the
the common Case which is many times agreed on in our Books a lease is made to one for life the remainder to the right Heires of I. S. this remainder is good upon contingency viz. If the Lessee for life survive I. S. otherwise not and by the same reason if a man have issue a Son of 9 yeares of age maketh a Lease untill the Sonne shall accomplish his full age the remainder to another in Fee as in this case nothing vesteth in him in remainder presently Quod fuit concessum per tot Cur. vide Chudleyes Case Libr. 10. Answered that in Wills the intent of the devisor is to be considered for when the devisor in his life by apt words by good advise might have made his Will sufficient in Law there though he makes it in disordered manner and in barbarous and unapt words the Law will order those words which want order according to his intent as in Wellock and Hamonds Case Coppy-holder in Borough English devises to his Eldest Son paying 40. shillings within c. to every of his other Sonnes c. surrenders according and dyes the Eldest Son did not pay within c. the youngest enters and adjudged lawfull and resolved First That he had a fee for the recompence and consideration though it be not to the value makes a fee in construction of a will Secondly That though paying in a Will makes a condition yet here 't is a limittation otherwise it would discend upon the Eldest Son who is to take advantage of it and then it should be at his pleasure for to pay or not and therefore it shall be as if he had devised to the Eldest Quousque he failes in payment So here the devisor hath computed what profits of his Land during the nonage of his Son will suffice for payment of his Debts c. and that he did not intend that the tearme of the Executors should end by death of H. for so his Debts should remaine unsatisfied and his Will unperformed and therefore the Law sayth it shall be construed that the Executors shall have till H. should have come to 21 yeares of age and therefore the Executors have a terme for twelve yeares which the Court agreed And though when and then are Adverbes of time yet when they referre to a thing which must of necessity happen they make no contingency and t is certaine that H. did accomplish or might have accomplished the age of 21 yeares and here if the tearme should be ended by death the remainder should be voyd and the Court agreed that in Wilis and grants the remainder ought to vest in possession Eo instanti the particular estate ends but here the Terme did not end c. Walkers Case 29. Eliz. in Banco regis WAlker Leased certaine Lands to Harries for yeares the Lessee assigned all his interest to another Walker brought an action of Debt against Harries for Rent arreare after the assignement and if the action be maintainable or not was the Question and upon great deliberation and conference with others it was adjudged per Wray chiefe Justice Sir Thomas Gawdy and Tot. Cur. that the Action did lye and was maintainable in the argument whereof many things were resolved If a man Lease a stock of Cattle or other goods rendering a Rent at severall dayes he shall not have an Action of Debt untill all the dayes be expired Likewise if a man make an obligation or other contract to pay severall summes of money at severall dayes he shall not have an action of Debt untill all the dayes be expired for these are personall contracts and not reall but in case of a Lease for yeares which is a reall contract the Lessor shall have an action of Debt after every day By the Court Debt doth well lye in this case against the Lessee there are three privities 1. In respect of the estate onely 2. Of contract onely 3. Of estate and contract together The first betweene the Grantee of the reversion or Lord by escheate and the Lessee so betwixt the Lessor and the Assignee of the Lessee the second betwixt the Lessor and the Lessee as here for notwithstanding the assignement and the privity of estate removed by the act of the Lessee himselfe the privity of contract remaines First because the Lessee himselfe cannot prevent the Lessor of his remedy but when the Lessor grants his reversion against his owne grant he shall not have remedy because the Rent is incident to the reversion Secondly the Lessee might grant it to a poore man not able to manure the Land or for malice will suffer it to lye fresh so the Lessor shall be without remedy if Debt should not lye against the first Lessee Thirdly there is privity of contract and estate together as betwixt the Lessor and the Lessee If a Tenant in Dower or Tenant by curtesy assigne over their estate yet the privity of the action remaineth betweene the Heire and them and he shall have an action of wast against them for wast done after the assignement but if the Heire grant over his reversion then the privity of the action is destroyed and the Grantee may not have any Action of wast but onely against the assignee for betweene them is a privity of Estate and betweene the Grantee and the Tenant in Dower c is no privity at all If a lessor enter for condition broken or if a lessee surrender to the lessor yet the lessor may have an action of Debt for arrerages due before the condition broken or the surrender and this is in respect of the contract betweene the lessor and the lessee 36. of the Queene Vngle and Glovers Case adjudged the lessee assignes his interest the lessor bargaines c. the reversion the bargainee shall not have Debt against the lessee but agreed that the lessor himselfe might 37. Eliz. in Banco regis Int. Overton et Siddall Two points were resolved First if an Executor of a Lessee for yeares assigne over his interest that an Action of Debt doth not lye against him for Rent due after the Assignement If a Lessee for yeares assigne over his interest and dye the Executor shall not be charged for rent due after his death for by the death of the Lessee the personall privity of the contract as to the Action of Debt in both these cases were determined 40. of the Queene Brome and Hores Case A. Lessee of three acres rendring Rent assignes one to B. the Lessor suffers a recovery to the use of C. in fee who brought Debt against the first Lessee adjudged it lyes for the Lessee assigned his interest but for part for the privity of Estate remaines because he assigned but part 41. of the Queene Marrow and Turpins Case in Debt against two administrators upon a Lease made to their Testator the Defendants plead that before the tren areare the one of them had assigned all his interest to I. S. of which the Plaintiffe had notice
So I know one neare about B. that is a notorious thiefe But if two speake of B. and the one says he is a notorious thiefe an action lyes and B. may reduce this to a certainty by innuendo praedict B. for the office of an innuendo is for to designe the person that was named in certaine before and in effect stands in place of praed but innuendo cannot make that certaine which was incertain before and subject to a deceivable conjecture But if one says to B. Thou art a traytor an action lyes for constat de persona So here when two speake of the Plaintiffe and one says Hang him there innuendo will denote the person but innuendo cannot extend for to make the intent to be the French pox by imagination which is not apparent by the precedent words and the words themselves shall be taken in mitiori sensu Oxford and his wife against Crosse 41. of the Queene fo 18. THe Plaintiffes brought an action in London for calling the wife of the plaintiffe whore the defendant removed this out of London by habeas corpus a Procedendo was prayed because the action was maintainable in London though not at common Law denied by the Court for such custome to maintaine an action for brabling words is against Law Sir G. Gerrard Master of the Rolls against Mary Dickinson 32. 33. of the Queene fo 18. THe Plaintiffe counts that he was in communication with R. E. for to demise to him the Mannor c. The Defendant said Praemissorum non ignara I have a lease of 90 yeares of the Mannor and then shewed and published a Demise made by the Lord Audley grandfather of the Lord A from whom the plaintiffe claimes where in truth the defendant knew this to be counterfeit by reason of which c. R. E. did not proceed c. The Defendant pleaded Quod talis Indentura qualis in the count came to his hands by trover and traversed that he knew of the forgery Resolved if the defendant affirme and publish that the plaintiffe had not right but that she her selfe had no action lyes though she hath no right because she pretends title for if an action should lye how could any one claime or sue or seeke counsell for any land Banisters case before resolved according and therefore 't was here resolved that no action lyes for saying I have a Lease c. though it be false And though it appeares by the barre that she had not title but is a Stranger yet because the matter in the count doth not maintaine the action the barre shall not make it good Resolved that there was other matter in the count sufficient to maintaine the action viz. that the Defendant knew of the communication and that the Lease was forged and yet published it by which the Plaintiffe lost his bargaine Resolved that the barre was insufficient for the knowing of the Defendant of forgery is not traversable as in an action for that the Dogge of the Defendant had bit the beasts of the Plaintiffe Ipse sciens canem suum ad mordendas oves consuetum Sciens is not traversable but it ought to be proved upon the generall issue for sciens is not a direct allegation nor alledged in any place And talis indentura qualis is no direct answer to the Indenture mentioned in the count for talis non est eadem and no simile est idem Barhams case 44. 45. of the Queene fo 20. MAster Barham did burne my barne innuendo a barne with corne with his own hands and none but he Moved in arrest of judgement that the words were not actionable for 't is not felony to burne a barne if it be not parcell of a mansion house or full of corne and in such case agitur civilitèr not criminalitèr verba accipienda sunt in mitiori sensu And the innuendo will not serve when the words are not slanderous Britteridges case 44. 45. of the Queene fo 19. B. Is a perjured old knave and that is to be proved by a stake parting the land of A. and B. Resolved that the action lyes for the first words And adjective words will maintaine an action when they presume an act committed as here or when they scandalize a man in his office or function or trade by which he acquires his living Philips Batchelor of Divinity brought an action against B. for saying Thou hast made a seditious Sermon and moved the people to sedition this day adjudged the action lyes because though the first part of the words were meerely adjective they scandalized him in his function So if a man says to a Merchant that he is a bankruptly knave or a bankrupt knave as 't was adjudged in Mittons case or that he will be a bankrupt within two dayes but an action lyes not when these adjective words import not an act done but an inclination which doth not scandall him in his function c. Resolved in the case at barre that upon all the words together no action lyes for the last words explaine his intent to be of no judiciall perjury And 't is not possible that a stake can prove a man perjured as it hath been adjudged Thou art a thiefe for thou hast stollen my apples out of my Orchard or robbed my hop-ground Dobbins and Francklins case 43. 44. of the Queene But if the counsell of the Plaintiffe had disclosed the truth of the case in the count an action would lye for in truth there was a controversie betwixt two whether the stake stood upon the land of the one or the other or as an indifferent boundary and the Plaintiffe was deposed in an action for this as a witnesse and by the pretence of the Defendant had perjured himselfe in his Deposition Palmer and Thorpes case 25. of the Queene fo 20. touching defamations in the Ecclesiasticall Court REsolved that such defamation ought to have three incidents 1. That the matter be meerely spirituall and determinable in the Ecclesiasticall Court as for calling Heretique Schismatique advowterer fornicator 2. It ought to concerne matter meerely spirituall onely for if it concerne any thing determinable at common Law the Ecclesiasticall Judge shall not have conusance of it See for this 22. E. 4. 20. the Abbot of St. Albanes case 3. Though the thing be meerely spirituall yet he which is defamed cannot sue there for amends or damages but the suite there ought to be onely for punishment of the offender Pro salute animae For this see Articulis cleri circumspectè agatis and Fitz 51 52 53. But the Plaintiffe shall recover costs there and there if the Defendant to redeeme his pennance agree to pay a certaine summe the party may sue for this there and no Prohibition lyes Copy-hold Cases Brownes case 23. 24. of the Queene fo 21. COpy-holder in fee by licence leases for yeares and dyes the eldest Sonne dyes before admittance adjudged that the daughter
of the intire blood shall have it not the younger sonne Resolved though a Copy-holder in judgement of Law hath but an estate at will yet custome hath so established and fixed his estate that by the custome of the Mannor 't is descendable to his heires and is not meerely ad voluntatem Domini but c. secundum consuetudinem manerij so the custome is the soule and life of Copy-holds See the booke at large of what antiquity Copy-holds are and some generall learning concerning them Resolved when custome hath created such inheritances the Law shall direct the descent according to the Maximes and rules of the common Law as incident to every estate descendable When uses had gained a reputation of inheritances the Law directed the descent and of them there shall be a possessio fratris But resolved that such customary inheritances shall not have any collaterall qualities which doe not concerne descent of inheritance which other inheritances have and therefore they shall not be assets to the heire upon an obligation nor there shall not be Dower nor tenancy by the Curtesie nor a descent shall toll entry c. For as without custome they cannot descend so without custome they cannot have a collaterall quality for Copy-holders have inheritances secundum quid viz. to descend to the heires and not to be determined by the will of the Lord not simplicitèr to a collaterall quality Resolved that the heire before admittance may take the profits and may surrender to the use of another before admittance but this shall not prejudice the Lord for his Fine upon the descent and he is a tenant by Copy of Court-roll for the roll made to his auncestor belongs to him and admittance of tenant for life shall serve for the remainder yet it shall not prejudice the Lord for his Fine And though 't was objected that every admittance amounts to a grant and so may be pleaded and therefore nothing vests before admittance yet 't was resolved that as after admittance the heire may in pleading alledge this as a grant and this to avoyde inconveniences for if he should be compelled to shew the first grant it was before time of memory and so not pleadable or if within memory then the custome failes yet he may alledge the admittance of his auncestor as a grant and shew the descent to him and that he enterd and this without admittance but he cannot plead that his Father was seised c. by Copy c. and dyed seised and that this descended c. For in truth 't is but a particular estate at will in judgement of Law though descendable by custome Ryvets case 24. of the Queene fo 22. A Greed that a husband shall not be tenant by the Curtesie of a Copy-hold without speciall custome Deale and Rigdens case 36. of the Queene fo 23. ADjudged that if a recovery be in plaint in nature of a reall action against tenant in taile admitting Copy-hold may be intailed that this is a discontinuance for in as much as plaints are warranted by custome 't is incident that it should make a discontinuance The like judgement was between Clun and Pease Bullock and Dibleys case 35. of the Queene fo 23. REsolved that a surrender by the husband is no discontinuance to the wife nor her heires And if a Copy-holder for life surrender to the use of another in fee this is no forfeiture for it doth not passe by livery And Copy-holders have not such quality without speciall custome so also adjudged in severall cases Gravenus and Teds case 35. of the Queene fo 23. REsolved that the descent of a Copyhold doth not toll entry and that where the custome was that he may grant in fee simple that he may by the same custome grant to a man and the heires of his body for be it a fee simple conditionall or a taile 't is within the custome so of a grant for life or yeares for fee simple includes them Fitch and Huckleys case 36. of the Queene fo 23. REsolved that admittance of a Copyholder for life is an admittance of him in remainder but not to prejudice the Lord for his Fine And that upon a surrender to the use of himselfe for life and after to the use of his last will that the fee remaines in the Copy-holder not in the Lord. Clarke and Pennifathers case 26. of the Queene of 23. REsolved that the heire of a Copyholder may enter and have trespas before admission and if the heire as the principall case was dye before admission his heire may take the profits and have trespas And Wray said that 't was adjudged that there shall be possessio fratris of it Resolved that where H. 8. granted a Mannor to the Queene for life that the Queene was a sole person exempted by common law and may make a lease or grant without the King and may plead and be impleaded and that 32. H. 8. is but a declaration of the common Law Adjudged that a grant of a Copyhold in fee escheated to her by the Queene tenant for life bindes the King his heires and successors for she was domina pro tempore and the custome of the Mannor bindes the King And that every one who hath a lawfull interest in a Mannor c. though but at will may grant Copyholds escheated c. rendring the auncient rent customes and services and this shall binde the Lord for he is dominus pro tempore For a Copyholder derives not his interest out of the estate of the Lord onely but out of the custome and the grantee is in by that without regard to the estate or person of the grantor and therefore such a grant by the husband shall binde the wife so of Infants non compos mentis Bishop Prebend Parson shall binde for ever for the custome is that the tenements are parcell of the Mannor and demised and demisable c. But the Lord must have a lawfull estate for if a disseisor or Feoffee of a disseisor c. makes such grants this shall not binde him that hath right after a recontinuance of the Mannor but admittances by such upon a surrender or of the heire shall binde c. for they are lawfull quodam modo judiciall acts which to doe he may be compelled in a Court of equity P. 26. of the Queene fo 24. ADjudged if a Lord takes wife and a Copyholder for life according to the custome dyes and the Lord regrants for lives and dyes that the wife in Dower shall not avoyde these grants for though the grant were after the title of Dower yet the custome was before If a Feoffee upon condition makes a voluntary grant the condition is broken the Feoffor reenters the grant shall stand Rous and Arters case 29. of the Queene fo 24. ADjudged that if tenant pur auter vie of a Mannor after the death of cestuy que vie continues in and holds Courts and makes voluntary grants this shall not
binde the lessor otherwise of admittances upon surrenders or descents for he was tenant at sufferance who hath no lawfull interest and a Writ of entry ad terminum qui praeteriit lyes against him and so he is a deforceor Murrell and Smiths case 33. and 34. of the Queene fo 24. THe Queene grants a Copyhold in fee and after grants the inheritance of the Copyhold to a stranger the Copyholder devises to M. and after surrenders to the use of his will Resolved that custome hath so established the estate of a Copyholder that by severance of the inheritance of the Copyhold from the Mannor the Copyhold is not destroyed for being the Lord himselfe could not ouste the Copiholder no more can another claiming in by him Objected that every Copyhold ought to be parcell of the Mannor and to be demised or demisable time out of memory Resolved that because once this had both the incidents aforesaid and its perfection the severance made by the Lord shall not destroy it Resolved that notwithstanding the surrender and devise the Copyhold descended to the heire for after the severance of the inheritance from the Mannor the surrender was utterly voyd for the land was not parcell of the Mannor at the time and the devise onely cannot transferre such a customary estate but it ought to be by surrender into the hands of the Lord c. Resolved that after severance the Copyholder shall pay his rent to the Feoffee and shall pay and do other services which are due without admittance or holding of a Court as to plough the demeanes of the Lord Heriot c. but suite of Court and Fine upon alienation or admittance are gone for now the land cannot be aliened for though the Copyholder hath some benefit by the severance as appeares before so he hath great prejudice for now he cannot surrender or alien his estate nor the Feoffee cannot make an admittance for he is not dominus pro tempore Resolved that such forfeitures remaine as were before the severance as Feoffement lease wast denier of rent So if the land were of the nature of Borough English or Gavelkind and other customes which run with the land remaine And 't was said that such Copyholder hath no other meanes to alien but by Decree in Chancery against him and his heires but by this the interest of the land is not bound but the person onely Kite and Queintons case 31. of the Queene fo 25. COpyholder in fee surrenders out of Court by the custome to the hands of certaine Copyhold tenants to the use of another and his heires upon certaine condition at the next Court the surrender was presented but the condition omitted he to whose use c. dyes the Lord admits his heire he that made the surrender releases to the heire being in possession and after enters Resolved that the presentment of the surrender was voyde for that the condition was omitted for the surrender that the Copiholder made was not presented but if the surrender the condition had been presented and the Steward in entring of it omits the condition upon sufficient proofe of it the surrender shall not be avoyded but the roll amended for the roll doth not conclude the party for to plead or give in evidence the truth of the matter Resolved if a Copyholder be ousted by wrong a release by him to the disseisor doth not transferre his right because he hath not any customary estate upon which the release of the customary right may inure and this should be prejudiciall to the Lord for by this he shall lose his Fine and services but a release made to him which is admitted by the Lord and in possession is good and a release of a customary right may inure to him and the Lord not prejudiced and the release shall inure by way of extinguishment And Littleton speaks of an alienation by surrender onely which ought to be into the hands of the Lord but a release cannot be done to the Lord and Littleton says He which claimes a Copihold by surrender hath no other evidence but he which claimes an extinguishment of a right may have it by release by Deed and 't is no perill to purchasors for if the Copiholder in possession sels it he will shew the release and he which is out of possession cannot sell till he hath regained the possession caveat emptor By Wray if he which hath a pretensed title c. to a Copihold bargaines c. this is within 32. H. 8. for the Statute says any right or title and great part of the land within the Realme is in Copy and therefore the intention was to include them to avoyde maintenance and champerty Melwich and Luters case 30. of the Queene fo 26. REsolved that the lessee of a copiholder for a yeare shall maintaine an Ej ' Firmae for his terme being warranted by Law by force of the generall custome of the Realme 't is reason that he should have remedy by Ej ' Firmae And this is a speedy course against a Stranger Resolved that the Copiholds are not destroyed by severance of the inheritance of them from the Mannor but remaine in force So Murrels case before adjudged Resolved that when the Lord of a Mannor having many ancient Copiholds in a Towne grants the inheritance of all the Copiholds the grantee may hold a Court for the customary tenants and accept surrenders and make admittances and grants for every Mannor which consists of Freeholders and Copiholders comprehends in effect two severall Courts the one the Court Baron for Freeholders and in this the Suitors viz. the Freeholders are Judges and the other Court for the Copiholders and in this the Steward or the Lord himselfe is Judge and though this is not a Mannor in Law because it wants Freeholders yet the grantee may hold such Court as aforesaid for Copiholders onely as the grantor himselfe might So if all the Freeholds escheate or the Lord releases the tenure and services yet he may hold a customary Court for the Copiholds Note Reader though the Lord by his own act cannot make of one and the same Mannor at common Law divers severall Mannors consisting of Demeanes and Freeholders yet he may make a customary Mannor of Copiholders Resolved that the Lord himselfe may make a grant or admittance of a Copiholder out of the Mannor at what place he pleases but if the Steward at any Court holden out of the Mannor shall make grants or admittances they are voyd Neales case 37. of the Queene fo 26. ADjudged that where the Lord of a Mannor demises all his lands granted by Copy for two thousand yeares that the lessee may hold Courts for Copiholders as Melwiches case is before and 't was said so to be resolved in C. Hattons case Note Reader a good diversity where the number of the Copiholders may support the custome and a singular case of a Copiholder as in Murrels case before in which case the
had common in such a place for him and his Tenants at will but when he claimes this in the soile of the Lord he cannot prescribe in the name of the Lord for the Lord cannot prescribe to have common c. in his owne soile and therefore he ought to alledge that within the Mannor there is such a custome Note a good diversity betweene a prescription which is personall and alwayes made in the name of a certaine person or his auncestors or those whose estate c. and a custome which is locall and alleadged in no person but that within the Mannor there is such a custome this shall serve for those who cannot prescribe in their owne name nor in the name of any person certaine as the Inhabitants of a Towne Also the allegation of a custome shall serve when 't is referred to a thing insensible Viz. that all such Lands are devisable And for that in the principall case the custome may have a lawfull commencement that one copy-holder onely shall have common estovers or other profit in the land of the Lord and that in many Mannors some Copiholders have common in one wast of the Mannor and others in another severally so that the custome cannot be applied to all and because that all the other Copiholds may be determined and extinct 't was adjudged the custome was well alledged So to have common of estovers in the wood of his Lord parcell of the Mannor c. was adjudged good 10. of the Queene as 't was said Myttons case 26. Eliz. QUeene Elizabeth by Letters Patents did grant the office of the Clerkship of the County Court of Somerset to Mytton with all fees c. for life Arthur Hopton Esquire Sheriffe of the same Shire interrupted him because it was incident to his office Mytton complained to the Lords of the Councell and it was referred to the two chiefe Justices Wray and Anderson And after many arguments concerning the validity of the grant and conference had with all the other Justices It was resolved by all the Justices Nullo contradicente aut reluctante that the said Letters Patents were voyd And their reasons were that the office of the Sheriffe was an ancient office before the Conquest and of great trust and authoritie for the King committeth unto him Custodiam Comitatus And though the King may determine the office ad beneplacitum yet he cannot determine this in part as for one Towne or Hundred nor abridge him of any incident to his office for the office is entire and ought to continue so without any fraction or diminution without by Parliament and the County Court and the entring of all proceedings therein are incident to the Sheriffes office c. And though 't was granted when the office of the Sheriffe was voyd yet the new Sheriffe shall avoyde it as Scroges case in the time of vacation of the office of the Chiefe Justice of the Common Bench Queene Mary granted the office of the Exigenter of London resolved that the next Chiefe Justice shall avoyd it for 't was incident to his office Also in all Writs directed to the Sheriffe concerning the County Court the King says in comitatu tuo and in retourne of exigents made by him he says ad comitatum meum tent c. and the style of the Court proves it and by the Statute of 33. H. 8. the Sheriffe of Denbigh shall keepe his Shire Court at c. In a false judgement 't is said in pleno com' tuo recordari facias c. and in a precept of Tolt 't is said summoneas c. quod sit ad comitatum meum And it should be very inconvenient that another should have the custody of the entries and Rolls of Court which may be imbesilled and the Sheriffe responsable for them And it was resolved that the custody of all the Gaoles within every County belongs to the Sheriffe by right and are annexed and incident by the Law to the Sheriffes office vid. stat An. 14o. E. 3. ca. 10. Bozouns case 26. 27. of the Queene fo 34. A. Portion of tythes in L. appertained to the Rectory of G. which was presentable and the Queene was seised of the Rectory of L. jure coronae which was appropriated to the Monastery of W. and grants to B. ex gratia speciali c. totam illam portionem decimarum c. in L. c. Cum omnibus alijs decimis suis quibuscunque in L. tunc vel nuper in occupatione J. C. and that the pattents shall be of force non obstante aliquibus defectibus in non nominando male recitando c. alicujus occupatoris And J. C. never had any tythes in L. Resolved that in the occupation of J. C referres to all the sentence and not onely to cum omnibus alijs decimis c. 1 Because illam demonstrates fully that there ought to be words subsequent to explaine and reduce in certainty what portion by the intention of the Queene should passe viz. that which was in the occupation of J. C. and 't is not satisfied till it be come to the full end of the sentence 2. This conjunction cum omnibus alijs c. couples the last words to the former and makes the words subsequent to referre to all the sentence 3. If all the tythes in L. of the said Rectory should passe the addition of the occupation of J. C. should be vaine maledicta expositio c. Resolved that by grant of portionem decimarum c. the tythes parcell of the Rectory of L. doe not passe for portion properly signifies a part or portion in grosse divided and not parcell of the Rectory and the Queene had not any portion in grosse but all were parcell of the Rectory And ex gratia speciala c. shall not extend by any strained constructiō to make a thing passe against the intention of the Queene expressed in her grant and against the apt proper and usuall signification of the words of his grant Resolved that because J. C. had not any tythes there nothing passes for admit that a portion should be taken for a part then the effect of the grant is totam illam portionem decimarum in occupatione J. C. and in truth he never had any part nothing without question passes in case of a common person a fortiori not in the case of the Queene As to the point when a clause of Non obstante shall make the grant of the Queene good when not Resolved when the King by the common Law cannot in any manner make a grant there a Non obstante of the common Law will not make the grant good against the reason of the common Law as the King grants a protection in an Assise or Quare Impedit notwithstanding any Law to the contrary 't is voyd for protection lyes not in these cases for the losse which may come to the parties by such great delay But when the King may lawfully make
a grant but the common Law requires that he be so instructed that he be not deceived there a Non obstante supplies it and makes the grant good As the King having made a lease for life or yeares grants the land Non obstante that it be in lease for life yeares c. or if he grants the land and further grants the reversion of it depending upon an estate for life yeares c. 't is good See the booke at large Resolved when the words are not sufficient ex vi termini to passe the thing granted but the grant is voyd there a Non obstante will not serve as in the principall case and the Pattents were not holpen by 18. of the Queene ca ' 2. for Pattents of concealement are expressely excepted out of the Act. Terringhams case 27. El. in banco regis fo 36. REsolved that prescription doth not make a thing appendant except the thing which is appendant agree in quality and nature to the thing unto which it should be appendant as a thing incorporate as an advowson to a thing corporate as a Mannor or as a thing corporate as Lands to a thing incorporate as an office these may be appendant but every thing incorporate may not be appendant to a thing corporate as common of turbary may not be appendant to Land but to a Messuage or house as it is holden 5. ass 9. for the thing which is appendant ought to accord with the nature and quality of the thing to which it is appendant and turves ought to be expended in a Messuage The commencement of common appendant by the ancient Law was in this manner viz. When a Lord of a Mannor infeoffed another of arrable Lands to hould of him in Soccage id est per servicium socae the Feoffee ad maintenand ' servicium socae had common in the wasts of the Lord for his necessary beasts that did plowe and ayre his Lands and this common is of common right and commenceth by operation of the Law and in favour of tillage and therefore it needeth not to prescribe in that for so it is houlden 4. H. 6. 22. H. 6. as one ought if it were against common right But it is onely appendant to the ancient arrable Lands and onely for oxen horses kyne and sheepe c. And because it is against the nature of common appendant to be appendant to meadowe or pasture and because that here the prescription was to have common time out of minde to a house meadow and pasture as well as to arrable by which it appeares to the Court that there hath been a house meadow and pasture time out of minde 't was resolved that this common was appurtenant not appendant But if of latter times men have builded upon some part of such arrable Lands and some part thereof is imployed to meadow and pasture and this for maintenance of tillage the originall cause of common the common remaines appendant and it shall be intended in respect of the continuall usage of the common for beasts leavant and couchant upon such lands that at the beginning all was arrable But in pleading he ought to prescribe that the same is appendant to Land for though terra dicitur a terrendo quia vomere territur yet terra includes all and is arrable though converted to meadow c. For it may be plowed A man may prescribe to have common appendant to his Mannor for all the demeanes shall be intended arrable at least in construction of Law redd ' singula singulis it shall be appendant to such demeanes which are ancient arrable c. And when a man claimes common appendant to his Mannor no incongruity appeares of his own shewing as here So common may be appendant to a Carve of land which may containe pasture meadow and wood but it shall be applyed to that which agrees with the nature of the common Resolved that common appendant may be apportioned because 't is of common right for if a commoner purchase part of the Lands in which he hath common yet the common shall be apportioned as well as if the Lord purchase parcell of the tenancy the rent shall be apportioned And if A. a commoner enfeoffe B. of parcell of his ancient Lands the common shall be apportioned and B. shall have common pro rata And 't was agreed that such common which is admeasurable remaines after severance of part of the land to which c. But here for that the common was appurtenant 't was adjudged that by the purchase all was extinct for 't was against common right for by the act of the parties it cannot be in esse for part and extinct for part 'T was said that pertinens is the Latine word as well for appurtenant as appendant and therefore subjecta materia and the circumstances ought to direct the Court to adjudge the common appurtenant or appendant Resolved that unity of possession of the intire land to which c and of the intire land in which c. extinguishes the common appendant By Wray chiefe Justice common for vicinage is not appendant but for that it ought to be by prescription 't is resembled to common appendant but common appurtenant or in grosse may commence at this day by grant or prescription and by him the one may inclose common for vicinage against the other as hath been adjudged in Smith and Redmans case Resolved that a man may chase out beasts that doe him trespasse with a small dog and shall not be compelled to distraine them damage feasant Cases of Appeales and Indictments Brookes case 28. of the Queene fo 39. REsolved that in an appeale of Burglary 't was an insufficient count that the defendant domum c. felâ—… burgaliter fregit for it ought to be burglaâ—… or burgulariter which is vox artis as murdravit â—…it which cannot be otherwise expressed Resolved if the count had been sufficient he being â—…icted once should not be againe impeached but here he was discharged upon the insufficient count By Wray Chiefe Justice if upon accident a man and all his family are out of the house and one in the interim breakes the house and commits felony 't is burglary for the indictment is domum mansionalem fregit and so 't was resolved 38. of the Queene where a man hath two mansion houses servants in both and in the night when the servants are out c. the house is broken 't is burglary Wetherell and Darlys case 35. of the Queene fo 40. IN an appeale of murder the Defendant was found guilty of homicide and had his Clergy after indicted and arraigned for murther pleaded this conviction Resolved that 't is a good barre at common Law and restrained by no Statute the reason is because the life of a man shall not be brought twice in question for the same offence Youngs case 38. of the Queene fo 40. AN Indictment that dedit unam plagam mortalem circiter pectus
offence but here his life was not in jeopardy So if a man be convicted by verdict or confession upon an insufficient indictment and no judgement given he may be againe indicted and arraigned for the law wants its end but if upon such insufficient indictment the felon hath judgement quod suspendatur per collum and so attainted which is the end of the Law he cannot be indicted againe c. till this judgement be reversed and upon such acquittall no conspiracy lyes Wrote and Wigges case 33. 34 of the Queene fo 45. THe defendant in an appeale of murder pleads that auter foits by inquisition taken before the Coronor of the Queenes houshold and B. one of the Coronors of M. he was indicted of Manslaughter which inquisition was certified to N. at the Goale delivery and the defendant upon this was arraigned confessed the felony and had his Clergy and it appeares the arraignement c. was after the purchase of the Writ of appeale and before the retourne Resolved that auter foits convict of man-slaughter and Clergy is a good barre in an appeale of murder as 't was adjudged in Holcrofts case In which it was likewise resolved that an inquisition taken before B. Coronor of the houshold c. and one of the Coronors of M. is well taken and within the Statute of articuli super chartas though the Statute requires two persons for the intent of the Act was performed and the mischiefe recited avoyded for though the Court removes yet he may proceed as Coronor of the County Resolved also upon the Statute of 3. H 7. ca ' 1. that this case was out of the Statute for if the defendant had his Clergy the appeale lyes not a fortiori when he is convicted onely and prayes his Clergy and the Act of the Court to be advised as to the allowance of Clergy so the case was shall not prejudice the party in case of life And 't was resolved that attaint of murder in the Act extends to a person convicted by confession or verdict as to a person attaint for he which is attainted is convicted and more And Agnes Gainsfords case adjudged that where 3. H. 7. is That the wife or heire of him so slaine shall have appeale that the heire of a woman c. shall have it against him who was acquitted of the same murder So resolved here an indictment and conviction or acquittance of manslaughter is a barre to an indictment of the same death for all is the same felony though the circumstance alter it Resolved that at common law the Coronor of the houshold had an exempt jurisdiction within the Verge and the Coronor of the County could not meddle as appeares by Articuli super Chartas and Swifts case adjudged where a Coronor of the County tooke an inquisition within the Verge 't was avoyded by plea the one cannot meddle within the power of the other But Justices of the Kings Bench of oyer and terminer c. may inquire heare and determine all murders c. within the Verge for their authority is generall through all the County so resolved in Holcrofts case Resolved that the indictment was insufficient for it doth not appeare that D where the stroke and death was was within the Verge and though in truth it were within yet it ought to be found by the oath of the indictors and cannot be supplied by nude averrement and it shall not be voyd coram non judice as to the Coronor of the houshold and good before the Coronor of the County for the Record is intire and taken intirely before them c. And the defendant in his plea hath averred that D. was within the Verge so the Coronor of the County could not take the indictment onely Resolved for that the indictment upon which he was convicted was insufficient that he may be newly indicted c. for his life never was in jeopardy Resolved that where the stroke was one day the death another the conclusion ought to be that he was murdered the day of his death otherwise 't is nought for 't was not murder before and 't was resolved that the finding of the stroke and the death were not sufficient of it selfe without conclusion and so T. W murdered the said R. W. Resolved that though the conviction were pending the appeale yet if it had been lawfull and before that the defendant was compelled to plead it had been a good barre Waits case 45. of the Queene fo 47. REsolved that where a woman brought seaven severall appeales against severall persons as principalls all ought to abate but the first for all the principalls and the accessories before the murder and after and before the Writ purchased against whom the plaintiffe will bring an appeale ought to be named in the Writ for if all make default except one yet the plaintiffe ought to count against all therefore he ought to bring the appeale against all And the defendant shall not have damages by the Statute of W. 2. for it is out of it because the Writ abated And the Statute of Magna Charta says appellum in the singular number Hill ' 30. of the Queene fo 48. AN indictment upon 8. H. 6. was quashed Quia fuit inquisitio capta ad sessionem pacis in Com' S. tent ' die Martis die Mercurij though the sessions may indure two or three dayes yet the Record ought to mention that they were holden at a day certaine as also for that the Statute was misrecited in a point materiall Note because misrecitall is fatall the sure way is to draw the indictment with conclusion contra formam statuti and with no recitall of the Act. Ognels case 29. of the Queene fo 48. AN Executor possessed of a grange consisting of divers parcels demises all the grange except H. to A. for 23. yeares and H. to F. for 23. yeares and grants all the residue of his terme in the intire grange to A. F. B. the revertion or grants a rent charge in fee out of all his lands c. called C. grange quondam in tenura B. the testator and now in tenura occupatione de A. The rent is areare the intire terme expires the reversionor makes a Feoffement the grantee dyes the Feoffee leases at will the Executors distraine for arrearages Resolved that at common law in some case debt lyes for arrearages of an Annuity in fee though it continues as if a Parson or Prebend resigne or dyes because the Parson is chargeable otherwise of a rent service charge or secke when the Freehold continues and for a rent there is a diversity when a rent in fee is extinct by the act of the party and when of the Law and when particular estates expire see the booke at large But 't was resolved in the case at barre that the arrerages due in the life of the grantee were lost at common Law Resolved that H. was not charged with the
rent without limitting any place or to whose hands the Lessee may pay it at the Exchequer or to the Bayliffes or Receivers of the Queene and when shee so appoints it by expresse words 't is no more then the Law appointed and though the words be Ad receptum scacc ' apud Westm it needs not that the receite be holden at Westminster the Law would have implied that And when a common person appoints no place the Law appoynts the payment upon the Land Palmers Case 39. Eliz. in Banco regis fo 74. THe Sheriff by vertue of a Fier Faci may sell a Lease of the Defendant and in his Writing the true commencement and terme of the Lease must be expressed or else if he selleth all the interest that the defendant hath in the Lands he needeth not to make any mention in the returne but generally Quod fieri fecit de bonis catallis c. But an inquisition found that the Debtor of the King was possessed Pro termino quorundam annorum c. 't was void for a terme cannot be extended without shewing the certainty of the commencement for after the Debt satisfied he is to have the remainder Resolved for that the case at Barre was an execution by Elegit which ought to be made by inquisition the sale here was voyd for the terme was mistaken in the inquisition and so mistaken was apprised by the inquisition and the Sheriffe cannot sell any terme but that onely which was apprised by the Jurors Hollands Case 39. of the Queene fo 75. REsolved that before 21. H. 8. ca ' 13. if he which had a benefice with cure accept another with cure the first is void but this was no avoydance by the common Law but by constitution of the Pope of which the Patron might take notice if he would and present without deprivation but because the avoydance accrued by the Ecclessiasticall Law no Lapse incurred without notice as upon a deprivation or resignation so that the Church was voyd for the benefit of the Patron not for his disadvantage But now if the first benefice be of the value of 8. l. per annum the Patron at his perill ought to present for to an avoydance by Parliament every one is party but if not of 8. l. 't is voyd by the ecclesiasticall Law of which he needs not take notice Resolved that 21. H. 8. is such a generall Act of which the Judges Ex officio though it be not pleaded ought to take notice See the Booke at large upon this Learning what act shall be said a generall act Of which the Judges are bound to take notice what not The Case of Corporations 40. and 41. of the Queene fo 77. REsolved that where diverse Citties c. are incorporated by the name of Mayor and communalty Mayor and Burgesses c. and in the Charters 't is prescribed that the Mayors Bayliffs c. should be chosen by communalty and Burgesses c. which is as much as to say as by all the Burgesses or all the communalty that yet the ancient and usuall Election by a certaine selected number of the principall of the communalty c. Commonly call'd the Common-Councell and not by all of the communalty or so many of them as will come to the Election was good in Law and warranted by their Charter for in every Charter they have power given to them to make Lawes Ordinances and constitutions for the better government and ordering of their Citties and Boroughes by force of which and to avoyd popular confusion they by their common assent have instituted c. that the election shall be by such a select number And though this ordinance cannot be now shewne yet it shall be presumed that such ordinance and constitution was made at first Digbyes Case 41. Eliz. fo 78. IT was adjudged that when a man hath a benefice with cure above 8. l. and afterwards taketh another with cure and is presented and instituted and before induction procure the Letters of dispensation that this dispensation commeth too late for by the institution Ecclia plena consulta existit against all persons but the King for every rectory consisteth upon spirituallty and temporallty And as to the spiritualty Viz. Cura animarum hee is compleat Parson by the institution for when the Bishop upon examination had admitteth him able then he doth institute him and saith Jnstituo te ad tale beneficium habere curam animarum of such a Parish accipe curam tuam c. Vide 33. H. 6.13 But touching the temporallties as the Glebe Lands c. hee hath no freehold in them untill induction for by the generall councell of Lateran Anno. Dom. 1215. it appeareth that by the acceptance of two benefices the first is voyd Aperto jure for upon this Councell are our Bookes in this case founded And 't was resolved that this was an acceptance of a benefice Cum cura within the Statute of 21. H. 8. Institution is an acceptance by our Law and 't was lately adjudged that if before induction the Clerke be inducted to another the first is void by 21. H. 8. which saith Accept and take another and for that now the avoidance is declared by 21. H. 8 he is bound to take notice but till after induction c. Nokes case 41. Eliz. fo 80. A Man maketh a Lease by these words Viz. Demise c. Grant c. and Covenants that the Lessee shall injoy without eviction by the Lessor or any claiming under him and was bound to performe all covenants c. the Lessee assignes his terme a stranger enters upon the Assignee and recovers in an Ej firmae after ouster the first Lessee brings Debt This is a covenant in Law and the assignee shall have a writ of covenant 9. Eliz. 257. Dyer And if a man be bound by obligation to performe all covenants grants c. This doth extend as well to covenants in Law as to Covenants in Fact Resolved though the recovery were by verdict yet he ought to shew that the Plaintiffe in this recovery had an elder Title for otherwise the Covenant in Law is not broken It was holden that an expresse Covenant doth qualify the generallity of the Covenant in Law and restraineth that by the mutuall consent of both parties but a warranty in Law and an expresse warranty the party may choose whither he will have for this word Dedi importeth a warranty Sir Andrew Corbets Case 41. and 42 of the Queen fo 81. A Devises Land to B. c. to have c. till 800. l. shall be paid by them of the profits to marry his Daughters and dyes the Heire conceales the Will takes all the profits and dyes the will is found by office the Devisee enters and hath leavyed 640. l. and imployes it accordingly whither the profits taken by the Heire shall be parcell of the 800. l. was the Question Resolved that the words shall be leavyed shall be
his warrant to bring the party before himselfe and it is good and sufficient in Law for it is most like that he hath the best knowledge of the matter and therefore most fit to doe Justice in that matter upon refusall to finde surety the Constable may commit him without a new warrant Gooches case 32. El. in banco le roy fol. 60. WRay chiefe Justice said that if A. make a fraudulent conveyance of his Lands to deceive a purchasor against the Statute of 27. El. and continueth in possession and is reputed as owner B entereth in communication with A. for the purchase and by accident B. hath notice of this fraudulent conveyance Notwithstanding he concludes with A. and takes his assurance In this case B. shall avoide the said fraudulent conveyance by the said Act notwithstanding the notice for the Act by expresse words hath made the fraudulent conveyance voyde as to the purchasor And for as much as that is within the expresse provision of the Statute it ought to be taken and expounded in suppression of fraud Resolved that fraud may be given in Evidence because the estate is voyde by the Act of 13. Eliz. and fraud is hatched in secret in arbore cava opaca And according to this opinion it was resolved Per tot ' Cur ' in communi banco Pasche 3o. Jac. where one Bullock had made a fraudulent estate of his Lands within the Statute of 27. El. to A. B. and C. and after offred to sell the same to one Standen and before the assurance by Bullock Standen had notice thereof and notwithstanding proceeded and tooke the assurance from Bullock Standen avoyded the former assurance of fraud by the said act for the notice of the purchasor cannot make that good which an Act of Parliament hath made voyde as to him And it is true Quod non decipitur qui scit se decipi But in this case the purchasor is not deceived for the fraudulent conveyance whereof he had notice is made voyde as to him by the Statute and therefore he knew it could not hurt him Sparries case 33. Eliz. in Scaccar fol. 61. IN action of Trover and convertion the defendant pleads that there is another action depending in the Kings Bench for the same Trover and good for in actions which comprehend no certeinty as assize or trespas this is no plea before a Count because thereby it is made certeine and then it is a good plea and not before but in this action and debt and detinue it is a good plea at the first because they are certeine that an action is depending in an inferiour Court is no plea. Cases of By-Lawes Chamberlaine de Londons case 32. El. in Banco le roy fol. 66. THe Inhabitants of a village without any custome may make Ordinances or By-Lawes for reparation of the Church or of high-wayes or any such thing which is for the publicke weale generally and in this case the consent of the greater part shall binde all without any custome vide 44. E. 3.19 But if it be for their owne private profit for that Towne as for their well ordering of their common of pasture or such like then without custome they cannot make by-Lawes And if it be a custome yet the greater part shall not binde all if it be not warranted by the custome for as custome hath created them so they ought to be warranted by the custome 8. E. 2. tit ass As pontage murage Tolle and such like as appeareth in 13. H. 4.14 In which cases the summes for reparations of the Bridge walls c. ought to be so reasonable that the Subject may have more benefit thereby then charge Clerks case 38. Eliz in communi banco fol. 64. KIng Edward 6. did incorporate the Towne of St. Albones and granted them to make Lawes and Ordinances c. The Tearme was kept there and the Major c. by assent of the plaintiffe assessed every Inhabitant for the charges in erecting of the Courts there and if any did refuse to pay c. to be imprisoned c. the plaintiffe being Burges refused to pay c. and the Major justified c and it was adjudged no plea c. For this Ordinance is against Magna Charta ca. 29. Nullus liber homo imprisonetur which act hath been confirmed divers times viz. thirty times and the assent of the plaintiffe cannot alter the Law in this case But it was resolved that the Major c. might inflict reasonable penaltie but not imprisonment which penaltie ought to be Levied by Distresse for which offence an action of Debt lyeth and the plaintiffe in this case had judgement Jeffrays case Michaelis 31 32. en Bank le Roy. fol. 66. WIlliam Jeffray Gent. brought a prohibition against Abraham Kenshley and Thomas Forster Churchwardens of Haylesham in Com' Sussex for that they sued him in Court Christian before Doctor Drury for certaine money imposed upon him without his assent for repaire of the Church That the Church-wardens with the assent of the greatest part of the Parishioners juxta quantitatem qualitatem possessionum reddit ' infra dict' parochiam existent Determined and agreed to make a taxation for repaire of the said Church and that notice of such assembly was given in the Church at which day the Church-wardens and greater part of the Parish which were there assembled made a taxation viz. every occupier of Land for every acre 4. d. c. Geffray dwelt in another Parish and declared that the Parishioners of every Parish ought to repaire their Church and not the Church of another Parish Cooke of councell with the defendant demurred in Law and after many arguments a Writ of consultation was granted And it was resolved that the Court Christian hath conusans de reparatione corporis sive navis Ecclesiae Britton who writ in 5. E. 1. And in the Statute of Circumspecte agatis but in Rebus manifestis errat qui authoritates legum allegat quia perspicuè vera non sunt probanda It was also resolved that although Geffray did dwell in another Parish yet for that he had Lands in the said Parish in his proper possession he is in the Law Parochianus de Haylesham But it was resolved that where there was a Farmor of the same Lands the Lessor that receiveth the rent shall not be charged but the Inhabitant is the Parishioner and the receipte of the rent doth not make the Lessor a Parishioner Diverse of the civill Lawyers certified the Court that the Church Wardens and a greater part of the Parishioners upon a generall warning assembled may make a Taxation by their Law and the same shall not charge the Land but the Person in respect of the Land for equality and indifferency and this was the first leading case that was adjudg'd reported in Our Bookes touching these matters and many causes after were adjudged thus and now it is generally received for Law The Lord Cheneys Case 33. Eliz.
but a labour to the Obligor or a stranger there he had time during his Life Fitz-Williams Case 2. Jacobi banco regis fol. 32. BAron and Feme Tenants for life and to the heires of the body of the Baron the Baron sole is vouched in a common recovery the taile is barred Copledicks Case 3. Report 2. Resol If Tenant in taile suffer a recovery to his owne use the remainder to his wife with diverse remainders over with power of revocation and limittation of new uses by any such writing he revoketh all the remainders except that to his Wife and by the same deede limits new uses this is good for by any such writing shal be intended the same or any such and it may be by the same deede for first it takes effect as a revocation 2. By limittation of new uses and there are not more instances then one in it See there Leaper Wroths Case cited 30. El. to prove that powers whereby the interest of Strangers shall be changed shall be taken strictly as a power to make leases for twenty one yeares he cannot make a Lease for 21. yeares to commence in Futuro The Bishop of Bathes Case 3. Jacobi com banco fo 34. THe B. 18. H. 8. Leaseth to E. and R. for sixty yeares proviso if they dye within the terme that the B. and his Successors shall reenter E. dyes the B. dyes the Successor Leases to C. Cum post sive per mortem c. praedict R. acciderit vacare for sixty yeares with confirmation R. dyeth Resolv every Lease ought to have a certaine beginning and the continuance ought also to be certaine eyther by expresse number of yeares or by reference to an expresse certeinty or where a Lease may be reduced to a certeinty by matter Ex post facto Agreed the second Lease vests presently in poynt of interest to take effect in possession at the end of the first Terme if by none of the accidents the first Lease become voyd in the meane time and then the Lease shall commence at the first accident which doth happen and the Lessee hath no Election The Deane and Chapter of Worcesters Case 3. Jacobi fo 37. THe D. and Ch. seised of a Mannor in Fee in which were Copy-holds grantable for three lives for 8. s. 8. d payable quarterly and herriotable grant a copy-hold for the Life of three reserving the old rent halfe yearely this is not voyd by 13. Eliz. cap. 1. Resolved the grant of a copy-hold for the life of 3. is good for although there may be an occupancy yet it is not inconvenient for an occupant shall be punished in wast 2. Grant of a Copy-hold is a demise by the intent of the Statute for in Law it is a Lease at will 3. The omission of Herriot doth not make it voyd because the annuall rent is reserved 4. It is sufficient that the yearely rent be reserved twice in the yeare for the Statute saith yearly which maketh a difference betweene this Case and the Lord Mountjoyes Case in the fifth Report Bellamyes case 3. Jacobi com banco fol. 38. A Lease upon condition that the Lessee shall not alien without License Assignee of the Lessee pleads that the Assignement was with License and shewed not forth the Deede of License 1. Because he did not claime by it 2. Because the License was Ex provisione hominis and not Ex institutione legis 3. Because it was executed and good Henry Finches Case 3. Jacobi banco regis fol. 39. A Grant of a rent charge out of diverse Mannors c. in the Parishes of E. and W. Aut alibi dictis marerijs spectantur and out of Lands which is not parcell of any of the Mannors these are not charged with the distresse for Alibi doth not charge more Land then is parcell of those Mannors but all parcells of the said Mannors out of the said Parishes Sir Anthony Mildmayes Case 3. Jacob. banco regis fol. 40. 1. REsolved a perpetuity is against the rules and pollicy of the common Law 2. It is impossible that an estate tayle shall cease before that Tenant in taile dyes without issue and an estate cannot be made to continue as to one and determine as to another except by Statute 3. A gift in taile upon condition that he shall not suffer a common recovery is voyd because he had power by the Law 4. It is a voyd saying that his estate shall cease if he goe about c. for Non officit conatus nisi sequatur effectus Also many ambiguities will arise thereupon because the Law doth not define it and it is so uncertaine that is not traversable Blakes Case 3. Jacobi com banco fo 43. AN accord with satisfaction is a good barre in a Writ of Covenant because the duty accrueth not meerly by the deede but by a torte subsequent together with the deed and it is a good barre in an attaint because this is not founded upon the record onely but upon the false Oath also In all cases where an arbitrament is a good Plea an accord with satisfaction is also and so generally in all Actions where damages onely are to be recovered Higgins Case 3. Jacob. com banco fo 44. IF a man have judgement upon an Obligation so long as this judgement is in force he may not have a new action upon the same Obligation For Interest reipublicae ut sit finis litium infinitum in jure reprobatur A Statute Staple is but an Obligation recorded and one Obligation cannot drowne another although they be both for one Debt and the Obligee may choose upon whither he will bring his Action 11. H. 4. and 2. Jac. Sir William Cornewalles Case and Branthwaytes Case and in every judgement the Defendant is amerced and so he shall be amerced in Infinitum Dowdales Case 3. Jac. com banco fol. 46. IN Debt against an Executor the Defendant pleads fully administred the Plaintiffe saith that he hath assets at E. the Jury found assets in Ireland 1. Resol when the place is materiall the poynt in issue cannot be found in another place 2. Where the place is named but for conformity assets may be found in another County 3. In a generall issue the Jury shall finde all materiall locall things in another County 4. The Jury by a meane shall trie locall things in another County as a release in a forreigne County the Jurors shall assesse damages for the profits of the Land in the other County Multa conceduntur per obliquum quae non c. but in case of felony the Tryall shall be where the offence was done 5. The finding of assets is the substance and that it is in Ireland is surplusage A thing done beyond the Sea shall be tryed here if the foundation of the Action be here Boswells Case 3. Jac. banco regis fol. 48. IN a Quare impedit judgement was given to remove the incumbent of the Queene not party to the Writ who was presented
to the King by any of the said foure wayes mentioned in the Act. Butts Case 42. Eliz. in com banco fo 23. A. Seised of black acre in fee and of white acre for yeares grants a rent charge to B. for life with distresse in both B. distreines and avowes in white acre and good 1. Resol white acre is charged during the terme and life of B. 2. All the rent issueth out of black acre for as an estate of freehold it cannot issue out of white acre nor as freehold out of black acre and a chattell out of white acre because intire it cannot be construed to be two rents contrary to the intent of the parties and therefore an acceptance of a Lease of white acre doth not suspend it and in an assize black acre onely shall be put in view 3. Although the rent issueth onely out of black acre yet white acre is charged with a distresse If a rent be granted out of three acres with clause of distresse in one this is a rent seck for all yet the grantee shall distreine in the third acre for it so if a rent be granted to two with clause of distresse to one of them but a rent may be seck and charge at severall times and therefore if a rent be granted in fee with distresse for life it is a rent charge for life and seck after but if the Clause of distresse be for yeares it is a rent seck for all because the freehold is seck The avowry was insufficient 1. Because he said the rent issued out of white acre where it issued out of black acre and although the Plaintiffe had disclosed the truth in his plea in barre this doth not salve the matter in substance vitious in the avowry 2. He deriveth the rent but of white acre Virtute cujus he was seised for life which is repugnant to have a freehold out of a Chattell and so judgement given against him for insufficient pleading Cases of Quare Impedit Halls Case 31. Eliz. fo 25. A Quare impedit against the Bishop and incumbent without naming the Patron the writ shall abate 1. It is not reason the Patron shall loose his Patronage without being named in case where he may be named as here 2. The incumbent at the common Law could not pleade to the Patronage and therefore it is no reason that he who cannot pleade be named and he who can omitted but now the incumbent may pleade to the patronage by the Statute of 25. E. 3. cap. 7. which inableth the possessor to counterpleade the title of the King and by equity against a common person in the one case after induction in the other after institution But in case where the Patronage shall not be recovered or that the Patron cannot be named as in the Kings Case a Quare impedit shall be against the incumbent sole or against him and the ordinary so if a Bishop disturbe and die it shall be against the incumbent sole if a Patron be named and die if the writ shall not abate he shall be out of possession and if it shall abate the torte shall not be punished but if the Patron be put out of possession he hath remedy by writ of right and if it shall abate the Plaintiffe is without remedy therefore the writ shall stand Sir Hugh Portmans Case 40. Eliz. fol. 27. IF the Plaintiffe in a Quare impedit after appearance be non-suite or discontinue or be made a Knight pending the writ this is peremptory because it is his owne act otherwise if the writ abate for default of forme or by misnosmer for this may be the default of the Clerke Baskervills Case 27. Eliz. fo 28. TItle devolveth to the King to present by lapse the Patron presents one who dyeth the King hath lost the presentation for he having the first presentation he shall not have the second otherwise the King may suffer Strangers to present one after another and take his turne when he pleaseth and by that meanes the Patron shall be in a manner disinherited and the Statute of Praerogativa Regis nullum tempus occurit Regi is to be intended when the King hath a permanent Title and not transitory when time is the substance of his Title Maunds Case 43. Eliz. fo 28. IN case of a reentry for non-payment of rent or when any summe Nomine penae is to be forfeite in both the cases demand ought to be made precisely on the day a convenient time before the setting of the Sunne in the one case in respect of a condition and in the other in respect of the penalty but in case of a distresse he that hath the rent may demand the same at what time pleaseth him for no Losse or penalty insueth thereupon but onely a remedy to come by his rent and if demand be made any time after the day and before the distresse it sufficeth Discontinuance of Processe c. by the Death of the Queene Trin. 〈◊〉 Jacobi fol. 29. UPon a generall resummons the originall and the issue are revived and not the meane processed or Voucher nor Garnishment but all the Processe is revived upon a speciall resummons but not in ayde prayer or if a Verdict be given and the King dieth before the day in banck because there summons lyeth not therefore he shall not have resummons but in case of Verdict he for whom it is given may have his judgement upon Scire facias But now by the Statute of 1. E. 6. an action suite bill or plaint shall not be discontinued if they are returned otherwise if not because the Statute saith Depending If one deliver an appeale to the Sheriffe within the yeare and the King dyeth for necessity the Plaintiffe shall have a Certiorari and reattachment so if a formedon be brought within a yeare against the pernor of the profits offices of Sheriffes not being of inheritance or by Charter are determined by the death of the King Suites depending in inferiour Courts are out of the Statute if the King dye after information preferred by him all the proceeding is lost but the information shall stand 1. Because this is a record for the King which shall not abate 2. Because informations upon certeine Statutes are to be preferred within certeine time but if the King bring an originall and dye this is lost if one plead to an Indictment and the King dye he shall plead De novo but if he be convicted judgement may be given in the time of another King by the said Statute and noâ—… Case of a Fine levyed by the King tenant in taile fo 32 Michaelmas 2. Jacobi A Fine levyed by the King tenant in taile by gift of his auncestor who was a subject barreth the taile 1. It is reason that as the King is bound by the Statute of W. 2. De donis that he should have benefit of the Acts of 4. H. 7. 32. H. 8. 2. A generall Statute bindeth the King of Lands discended
disseissed at the common ley and dyed and the Feme before entry dyed this is a discontinuance to the Sonne because he cannot enter as Heire to both but if the Feme enter the discontinuance is purged 2. The estate which the Feme had jointly with her Baron is within the purviewe of the Statute of 32. H. 8. c. 28. That no fine levyed by the Baron sole of Lands of the Feme shall hurt her and within the Statute of West 2. c. 3. 3. The entry of the Sonne is lawfull although he claimes not as heire to the Feme as the Statute speakes but as heire to both because he is within these words or to such as have right by the death of such Wife and this is to be intended of discontinuances made by the Baron and not of a rightfull barre of the issue for they cannot avoide it and the Statute is that they may enter which they cannot doe where they are barred and if the Feme enter within 5. yeares as shee may after a Fine levyed by the Baron this doth not take away the future barre of the issue and if shee enter not within 5. yeares shee also is barred Baron tenant in taile the remainder to the Feme in taile makes a feoffement the Feme may enter after his death by this Statute but if the Baron suffer a recovery she shall not enter in the Case at barre the son may have a Formedon at the common Law and where before this Statute a Cuj in vita or Sur cuj in vita did lye entry is given by this Statute and not otherwise The Lord Staffords Case 7. Jacobi fo 73. THe Queene revertioner upon an estate taile grants the revertion to T. T. in taile upon condition is to have Praedictam reversionem in fee the condition is performed the Lord Stafford Tenant in taile levyeth a fine his issue is barred 1. Resolved that a condition of accruer may be annexed to a thing which lyeth in grant and to an estate taile as if Lessee for life be the remainder for life with condition of accruer to the first this is good and yet no Merger of estate 4. things are requisit to an accruer 1. A particular estate as the Foundation Ergo a Lease at will shall not be 2. The estate ought to continue in the Grantee untill accruer therefore if the Grantee alien and repurchase the condition is Tolled but Quaere if the Tenant alien upon condition which is broken if the fee shall accrew but grantee may grant part of his estate as if Lessee for life make a Lease for yeares he may performe the condition after so may Tenant in speciall taile after he is become tenant in taile after possibility c. so may the surviving jointenant and the heire of Tenant in taile An instant is sufficient to support an accruer as if the condition be if the Lessee be ousted Eo instante that the ouster is the fee accrueth but if Lessee for yeares accept a confirmation for life the condition is gone but it is not necessary that the estate of the grantor or Lessor continue because by his owne act he shall not defeate his grant 3. It ought to vest at the time of the condition performed or never and for that rather that it shall not vest at this time by performance of the condition the fee without office or other ceremony shall be devested out of the King 4. It is necessary that the particular estate and the condition be in one deede or two deeds delivered at the same time for in Law they are but one grant and by the condition performed he had fee from the delivery Resolved Praedict reversionem signifies the reversion which the Queene had Viz. That which depends upon both the estates taile and so was the intent also shee granted Omnia praemissa which maketh it cleere Resolved also that these words Will and Declare doe amount to a grant and are so used in Patents of Liberties and things to take effect in Futuro Tenant in taile the remainder in taile the remainder to the King Tenant in taile suffers a recovery this doth not barre the remainder in taile because the issue in raile is not barred and therefore the revertions and remainders in taile are preserved by the Statute of 34. H. 8. c. 20. Lastly Resolved if the reversion in fee had remained in the Crowne that the fine levyed by Ed Lord Stafford the Father had not barred the Lord that now is Notlyes Case 31. Eliz. com banco Wiat Wields Case 7. Jacobi 78. W. W. seised of Land to which he had common appurtenant aliens 5. acres to one who in replevin counts that he and those whose estate he had in the said 5. acres have had common there c. and good 1. Resolved although by purchase of part of the Land in which c. the common appurtenant is destroyed in all yet it is not so by alienation of part of the Land to which but all remaines without damage to the Tenant of the Land 2. That the pleading of it was sufficient Vinyors Case 7. Jacobi fo 80. ONe was bound to stand to the award of W. R. and revokes the submission the Obligee brings Debt 1. Resolved the Countermand is good for an authority Countermandable by the Law cannot by any way be made irrevocable 2. Although that the Plaintiffe doth not show that the Defendant had given notice to the arbitrator yet it is good because this is implied for without notice the revocation is void 3. The Obligation by the Countermand is forfeited because he doth not stand to c. when he Countermands it 2. By his owne act he had made the condition impossible Ergo the Obligation is single if one bindes himselfe to give License to carry Wood c. for a certaine time if he give it and disturbe him the Obligation is forfeited Sir Richard Pexhalls Case 7. Jacobi fo 83. SIr R. P. seised of Lands part whereof is houlden in Capite deviseth 100. Sheepe 10. Bullocks and 10. l. quarterly to one with clause of distresse and that the Grantee shall hold his Courts for his life for rent arreare for 2. yeares the grantee avoweth 1. Resolved a devise of rent out of all is good and taketh effect out of two parts and as to the third is void 2 The grantee shall have an estate for life in rent and so he shall if it be granted by Deede also by the Intent of the Devisor it appeares that the Grantee shall hold Courts and have 10. l. per annum for his wages and quarterly here had relation to rent onely because the word Et disjoyneth it from Sheep and Bullocks and judgement given for the Avowant Buckmers Case 7. Jac. fo 86. T. B. gave a House in Gavellkinde to M. his Eldest Daughter in taile the remainder of one Moity to J. a second Daughter in taile the remainder of the other Moity to K. a third Daughter in
give to them any interest or Title eyther to the things in action or possession for they have all their title and interest by the Testament and not by the Probate Power to grant administrations was granted to the Ordinary by the act of 31. Ed. 3. ca. 11. for before that time when a man died intestate the King who is Parens patriae was accustomed by his Ministers to seize his goods to the intent they might be preserved and bestowed for the Buriall of the dead for payment of his debts for advancement of his Wife and Children if he had any otherwise to his Kindred as appeareth in Rot. Claus de 7. H. 3. in ib. bona intestatorum capi solebant in manus regis c. And after this care and trust was committed to the Ordinaries and it was resolved Per totam Cur. M. 8. and 9. Eliz. Dyer that the Ordinary himselfe hath not any authority to sell any goods of the intestate although they be in danger of perishing neither can he release any debt due unto the intestate by a statute in Ao 31. Ed. 3. ca. 11. the Ordinary shall depute the next and most lawfull friends of the dead person intestate to administer his goods And the Statute in Ao 21. H. 8. ca. 5. is that the Ordinary shall grant the administration to the widdow of the same person so deceast or to the next of his Kin or to both as by the discretion of the Ordinary shall be thought good c. Reade this latter Statute to whom administrations shall be granted The Earle of Shrewsburies Case 8. Jacobi fol. 46. 1. REsolved that the grant of the Stewardship of the Mannors of M. and B. without naming the County in which c. is good as if the K. grants all the Lands of priors aliens without naming the County but the party in pleading must name the County and upon Non concessit pleaded it will appeare by the evidence and by circumstances what Mannor was granted but if he had demanded oyer and demurred it will be adjudged against him for it is matter in fact and the acts of confirmations extend not where the County is omitted but where the County is misnamed 2. The grant from a day past is good and the intent was that the Earle shall have the fees from that day but if that cannot be it shall be good for the time to come 3. The Earle had no power to make Deputies for three offices passe by these Letters Patents severally whereof this is the middle and to the first power is annexed to make Deputies but not to the second the words are Habendum offic praed with such a contraction To that the Court answered that this Habendum shall have relation to this office for it is intended that the Earle shall excercise this base office by Deputy for if a Sheriffe shall doe it a Fortiori an Earle 2. Admitting that he cannot make a Deputy this Non user is no cause of forfeiture for true it is when an office toucheth administration of Justice Non user without request is cause of forfeiture but if he be not bound to exercise it without request otherwise it is as here he is not bound by the Letters Patents to hold Courts untill he be required if an office be private and not for administration of Justice Non user without damage or request is no forfeiture 4. Resolved that the Writ and count were good although they were Vi armis and the difference is betweene Non feasans or negligence and mis-feasance that may be Vi armis therefore if one bring an Action upon the Case Quare vi armis he hindered men from comming to his Fayre which is Causa causans whereby he lost his toll which is Causa causata and the point of the Action this is good 5. The office not being meinorable it is in his election to have an Action of the Case or an assize otherwise it is of Land See five Exceptions taken to the Verdict Falsa Orthographia Non vitiat concessionem and the difference is betweene Writs and Grants Ille numerus sensus abbreviationum accipiendus est ut concessio non sit in anis and judgement was given for the Earle of R. Hickmots Case 8 Jacobi Com. banco fol. 52. IN Debt upon an Obligation the Defendant pleads a release which is in these words The Obligee confesseth himselfe to be discharged of all bonds c. and that he will deliver all but one bond whereupon the action is brought which was made by the Plaintiffe and another 1. Resol These words that the Obligee confesseth himselfe to be discharged of all bonds is a release and amounteth to that that the bonds are discharged 2. The exception extends to all the premises and not onely to the delivery 3. The Plaintiffe by confessing that the Obligation was made by another and the Defendant against whom onely he brought the Action had abated his owne Writ and after the Plaintiffe was Non-suited Batens Case 8. Jacobi fol. 53. A Quod permittat to abate a House levyed Ad nocumentum liberi tenementi I. P. and now of the Plaintiffe and Counts that the House of the Defendant doth juttie over the House of the Plaintiffe and judgement given for the Plaintiffe 1. Resolved the Plaintiffe needs not shew how he had the estate of I. P. 2. The Writ is Ad nocumentum liberi tenementi I.P. and now of the Plaintiffe and counts to the Nusans of the Plaintiffe onely it is good for the levying in the time of I. P. imployeth a Nusans to him and he must shew a Nusans to himselfe to maintaine the action 3. If it appeare to the Court that the Nusans is to the damage of the Plaintiffe he needs not shew it specially as if the House of the Defendant hangeth over the House of the Plaintiffe as here for it appeareth that the light was stopped and that the raine discended Quod constat clare non debes Verificare and the Plaintiffe may abate the Nusans if he will the Statute of Westm 2. c. 24. which giveth the Quod permittat against the alienee of him who levyed the Nusans extends not to the alienee of the alienee The Poulters Case fol. 55. IF one were taken for the death of a man he was not bailable at the Common Law without a Writ De Odio acia which serveth not if he be appealed or indicted 2. If he be found not guilty upon the said Writ he was not bailable without a Writ De ponendo in ballivum 3. A Writ of conspiracy lyeth not before acquittall but the conspirators may be indicted or censured in the Starre-Chamber Confedracies punishable by Law before Execution ought to have 4. incidents 1. They must be declared by some manner of prosecution as was in this Case 2. They ought to be malicious and for revenge 3. They ought to be false against an innocent 4. They ought to be out of
truth but J.H. a Commissioner for the Plaintiffe held him strictly to the Interr so as the truth could not appeare and this was holden by the Lord Chancellour and the two Chiefe Justices the Chiefe Baron and all the Court of Starre-Chamber a great Misdemeanour c. as the Statute of Exceter saith Per quod institia veritas suffocantur and Commissioners to examine ought to be indifferent and by all meanes to express the Truth And they are not bound strictly to the Letter of the Interr but to every thing also that ariseth necessarily for manifestation of the truth Also the said J. H. when he was in Examination of Peacock went forth of the place to the Plaintiffe being in another Roome and had secret conference with him And it was holden by all the Court that a Commissioner before publication of the depositions ought not to discover to any of the parties the matter thereof nor after that he beginneth to examine Interr to conferre with the parties to take new instructions to examine further then he knew before and if he did they were great misdemeanours and punishable by Fine and Imprisonment for if such things should be suffered perjury would abound I. H. was put forth of the Commission of the Peace and the Attourney generall was required to prefer an Information against him for the said misdemeanours Doctor Husseys Case 9. Jacobi fol. 71. IN Ravishment of Ward against a Feme Covert and others they were found guilty and the Baron Non culp and the Age of the Infant above sixteene and Married Foster and Warberton a Feme Covert is within the Statute because the Action lay at the common Law and the Statute gives but greater punishment and so shee is within the Statute of Merton cap. 6. De Malefactoribus in parcis of forcible entry and redesseissin Cooke and Walmsley to the contrary the Statute of Westm 2. c. 35. hath made these alterations this extends to Heires Females which the Statute of Merton did not 2. It extends to Heires Ravished after yeares of consent so doth not the Statute of Merton 3. It extends to the Clergy the Statute of M. doth not 4. M. giveth a light of Ward this giveth ravishment of Ward 5. This giveth more speedy processe and the death of the Plaintiffe or Defendant abateth not the Writ 6. It giveth greater punishment 2. A Feme Covert is not within this Statute for it is Si haeredem maritaverit satisfacere non potuerit abjuret regnum or be perpetually imprisoned and because the Law disableth the Feme to satisfy shee shall not therefore be exiled nor perpetually imprisoned and the Baron being innocent shall not be punished for the punishment is personall and he shall not have judgement at the Common Law the Action being brought upon the Statute nor judgement upon the Statute where the Action is brought at the Common Law 3. The Verdict is insufficient because no Case is within the Statute except the Ravishor marry the Infant so that if the Infant Marry himselfe or be Married by another it is out of the Statute and the Verdict found that he was Married and did not say by whom 4. Damages shall be recovered upon this Statute and where the Statute saith that he shall be banished or perpetually imprisoned the Election is in the Court Combes Case 9. Jacobi fol. 75. Vpon a speciall Verdict A Copy-holder in fee where there is no custome to that purpose maketh two his Attorneys to surrender to the use of I. N. in fee they in Court shew the Letter of Attorney and by the said Letter of Attorney surrender 1. Resolved surrender by Letter of Attorney is good for a surrender may be by the common Law without custome and may be by Attorney as incident to it If one have a bare authority coupled with a confidence he cannot doe it by Attorney as Executors cannot sell by Attorney but if he had authority to dispose as owner of the Land he may as Cestuy que use by the Statute of 1. R. 3. but if one had particular personall power to dispose as owner of the Land he cannot doe it by Attorney as if Lessee for life had power to make Leases for 21. yeares There are personall things which cannot be done by Attorney as homage Fealty beating his Villeine admittance of him to whose use the surrender is made may be by Attorney if the Lord will and yet he may upon the admittance compell the Tenant to doe fealty A fortiori here and otherwise it would be a mischiefe for it may be he is beyond the Sea or sick and cannot be present to surrender for payment of his debts or preferment of his Children but if a custome be that an Infant may make a feoffement at 15. yeares he cannot doe it by attorney 2. The Attorneys have pursued their authority although they have not done it in the name of the Authorizor for they did shew the Letter of Attorney and surrendered by authority thereof which is all one but if it be to make a Lease by Indenture this shall be in the name of him who gave the authority but Executors must sell Land in their owne name for necessity and yet the Vendee is in by the Devisor Henry Peytoes Case 9. Jacobi Com. banco IT was resolved Per tot curiam that accord in all Actions wherein is supposed the Tort to be made Vi armis where cap. and the exigent lyeth at the Common Law is a good plea as in Trespasse and Ejectione firmae detinue of Charters house or other goods for where the certainty is to be recovered an Action is a good plea when the condition in a Deede by the Originall contracts of the parties is to pay money yet by accord and agreement betweene the parties any other thing may be given in satisfaction of the money Res per pecuniam estimatur non pecuniae per rem And in this sense the saying is true Quod pecuniae obediunt omnia Every Accord ought to be plaine perfect and compleat for if diverse things are to be observed and performed by the accord the performance of part is not sufficient 17. E. 4. 2. 6. H. 7. 10. Pl. com 5. If a man be bound in an Obligation in one hundred Quarters of Wheate upon condition to pay 58. Quarters he cannot give money or other thing in satisfaction thereof because the contract Originally was not for money but for a collaterall thing Also if the things to be performed be at a day to come tender and refusall is not sufficient without actuall satisfaction and acceptance If a man be bound in a Statute Recognizance or Obligation and after a defeasance is made to pay a lesse Summe now this Summe in the defeasance is collaterall and therefore if the Obligor render the same at the day and it be refused the Obligee shall loose the same for ever as is holden in 33. H. 6. fol. 2. and yet
in this Case the obligor by accord betweene the parties may give any Horse or other thing in satisfaction of the money in the defeasance for the Contract originally was for money But if a man by Contract or assumpsit without Deede be to deliver an Horse or to build an House or to doe any collaterall thing money may be paid by accord in satisfaction of such contract for as a contract in consideration may commence by word so by accord by words for any valuable consideration the same may be dissolved Agnes Gores Case 9. Jacobi fol 81. WHerein was resolved that if A. put poyson into a Pot to the intent to poyson B. and set the same in a place where he supposeth B. will come and drinke thereof and by accident one C. unto whom A. had no malice commeth and of his owne will taketh the Pot and drinketh thereof of which poyson he dyeth this is murther in A. for the Law coupleth the event with the intention and the end with the cause But if one prepare Rats-Bane to kill Rats or Mice and lay the same in certaine hidden places to this purpose and with no ill intent and another person finding the same doth eat thereof and dyeth this is no Fellony But when one prepareth poison with a Fellonious intent to kill any reasonable Creature whatsoever reasonable Creature is killed thereby he that had the fellonious intent shall be punished Resolved by all the Justices of England Coneys Case 9. Jacobi fol. 84. in banco THe Lord of a Mannor and Tenant within the age of 21. yeares by Fealty and rent the Lord infeoffeth a Stranger to which feoffement the Tenant attourneth Question whither the attournement of an Infant will binde him to the payment of the services or not and by Cooke Walmsley Warberton and Foster it shall binde for he is compellable in a Per quae servitia and shall not have his age but he may avoide any prejudice thereby at his full age and if a fine here had beene levyed he had beene compellable and the rather because it is but a bare assent Pinchons Case 9. Jacobi fol. 86. IT was adjudged that an Action of the Case will lye against Executors for a Debt due by the Testator upon a simple contract An Action upon assumpsit made by the Testator was maintainable against the Executors upon a contract for Corne. Norwood Reades Case plow com 181. Debts upon simple contracts ought to be paid before Legacies and reasonable part of the goods of the Wife or Infant which proveth that they still remaine the Spirituall Court doth give remedy for payment of Legacies and the reason of all this is for that the Testator in his life time upon his action of the case upon the assumpsit might not wage his Law as he might have done upon his action of debt for no action is maintainable against Executors where the Testator might have waged his Law in his life time If a Prisoner doe eate and drinke with his Goaler and dye the Goaler shall have an action of debt against his Executors for the meate and drinke of the Testator and the reason is for that in this case the Testator might not wage his Law as is adjudged 27. H. 6. fol. 46. in Thomas Bodulgates Case and the reason that no wager of Law in this Case is because that every Goaler ought to keep his Prisoner in salva arcta custodia and thereby the Goaler is in a manner compelled to finde Victualls for his prisoners and therefore the Prisoner may not wage his Law but if A. contract with B. for his commons for a moneth c. there in an action of debt brought against A. he may wage Law If a Victualer or common Innkeeper bring an action of debt for victualls delivered to his Guest the Guest may wage his Law for the Victualler or Host is not compellable to deliver Victualls untill he be paid for them in hand 10. H. 7 8. in Anno. 4. H. 6. R. G. brought an Action of Debt for 10. Markes against Thomas Timberhull and others Executors of William Webb and declared that the Testator had detein'd the Plaintiffe to be with him for a yeare in the Art of Limming of Books paying per annum 10. Markes And Martin did hold opinion that the Action was not maintainable against Executors and he tooke diversity between this Case of a Limmer and of a common Labourer for the Labourer may be compelled in spight of his head to serve and his wage is put in certeinty by the Statute and it is no reason the Servant should loose his wages by the death of their Master whom he was bound by the Law to serve but in case of a Limmer he is not bound by the Law to serve so when he makes a Covenant it is his owne Act and folly and not the Act of the Law for he might have taken a specialty and the opinion of Martin in this Case is good Law But the true reason of this diversity is because that in this Case of the common Labourer the Testator might not wage his Law as he might against the Lymmer and this appeareth in 11. H. 6. fol. 48. where the Gardian of Freres Minors in Coventry brought an Action of Debt against John Burton of Coventry Executor of John Goate and declared that the said John Goate retain'd at Coventry Frere John Bredon a Brother of the said House by License of the said Gardian to Sing for him Masses for one whole yeare and to say Saint Gregories Trentalls in the next yeare after and shewed in certainty upon what services Saint Gregories Trentall did consist taking for this xl s. per annum and within foure dayes John Goate dyed and the Defendant his Executor and the said John Burton granted to the said Frere to pay him the said Summe for doing the said services according to the Reteinor of the Testator which Divine services the Frere did performe according to the reteinor and all his wages were Arr. And in this Case the diversity was taken that a Labourer may have an Action of Debt against Executors without specialty because that he may be compelled to serve by the Statute and the Testator shall not wage his Law in this Case But the Priest or Frere is not bound to Sing Masses by the Law against his will And in every Case where the Testator might have waged his Law the Action is not maintainable against his Executors without specialty for Executors may not wage the Law upon the contract of another In 2. H. 4. fol. 16. Lawr. Saint Martin retained one for Tearme of his life in the time of peace and Warres for 100 s. per annum which service hee as his Servant did doe for two yeares for which he brought his Action of Debt against John Belton and others Executors of the said Lawr. And judgement was given against the Plaintiffe for the reason and upon the same diversity as is
more uncertaine then the Charterhouse To the essence of a Corporation five things are requisite 1. Lawfull authority to incorporate and that may be foure wayes by the common Law as the King himselfe by authority of Parliament by the K. Chartar and by prescription 2. The persons either naturall or politicall 3. A name by which c. 4. A place 5. Words sufficient but not restrained to a strict forme 5. A Corporation may be without head as if the K. incorporate a Towne and give to them power to choose a Maior they are a Corporation before Election 6. It is a sufficient incorporation that there be an Hospitall potestate for the Temple was a Corporation in the time of H. 1. and yet was not built till H. 2. time but here the House was built before 7. The first Donor is in Law the Founder and when the K. giveth a name and designes the place and the persons the Founder hath nothing to doe but the Donation but if the K. leaveth the nomination to the party there many times although not of necessity he useth the words Fundo erigo c. But in truth the incorporation is made by the K. Chartar and the Founder is but an instrument 8. The Master may be at will for by the Letters Patents S. had power to name one at his will and pleasure 9. The money paid by some of the Governours in their private Capacity is good but the payment was as Governours and so they are acquitted 2. A rent was reserved which is a good consideration 3. A bargaine and sale may be upon confidence and trust 10. They may plead that they are seised In jure incorporationis although then it be not In esse In Answer to the presidents some are Explanatory some Nugatory Ex consuetudine clericorum Sir Thomas Fleming Chiefe Justice of England became sick whereof he after died so that he never argued the Case See there his severall advancements and commendations Mary Portingtons Case 11. Jacobi fol. 35. AFter many things said concerning Perpetuities in this Case it was said that a recovery in value barreth an estate taile although no recompence be had because it is by judgement as if issue in taile be barred in a formedon by warranty and assets but if the issue before judgement given alien the assets his issue shall recover the Land in taile if Tenant in taile suffer a recovery and die before Execution the issue is barred It is absurd that one may barre one of going about to suffer a recovery when he cannot bare the recovery it selfe but if such a condition had beene good a Feme Covert by that shall not loose her Land for she shall not loose her Land by any conclusion without examination upon Writ in Court and if shee acknowledge a recognizance this is void although it be with her Husband because there is no Writ to examine her if an Infant levy a fine this is voidable and shall be tried by inspection but a fine levyed by a Feme Covert is void if the Husband enter otherwise not Jennings Case 38. ElIz Banco regis fol. 43. Tenant for life suffers a common recovery in which he in remainder in taile is vouched who dyeth the reversion in fee is barred 1. Resolved that at the common Law a recovery against Tenant for life upon a true warranty and recovery in value binds him in the remainder 2. No Statute was made to provide for him who had a reversion or remainder upon an estate taile and the Statute of W. 2. c. 3. which giveth receite to a revertioner upon default of him who holds Per donum is to be intended of Tenant after possibility of issue extinct and 32. H. 8. c. 31. provides onely for a reversion or remainder upon a Lease for life 3. There have beene diverse evasions out of the Statute of 32. H. 8. as if Lessee for life Lease for yeares to one who infeoffeth one who in recovery Vouches Lessee for life this was out of the Statute because the Lessor and Lessee were put to a right whereupon 14. Eliz. c. 8. was made 4. 14. Eliz. extends not where Lessee for life vouched him in remainder in taile because it is in the power of him in remainder to dock the reversion c. and the course is that Tenant in taile bargaines and sells to one who suffers a recovery in which Tenant in taile is Vouched and yet the bargainee had but for life judgement affirmed in Error Lampets Case 10. Jacobi fol. 46. LEssee for 5000. yeares deviseth for life to one whom he makes Executor the remainder to his Sister and the Heires of her body and dyes the Sister taketh Husband they release to the Executor who demiseth for ten yeares to the Defendant the Baron dyes the Executor dyes the Feme takes another Baron who demise to the Plaintiffe judgement against the Plaintiffe 1. Resolved a devise of the use of a Tearme to one for life the remainder to another for life is good as an Executory devise 2. A devise of the tearme it selfe in such manner is good 3. The first Devisee cannot barre him who had the Executory devise 4. Assent of the Executor to the first devise is an assent for all 5. If such a devise be made to the Executor and he enter generally he shall have it as Executor 6. Such an Executory devise cannot be granted over 7. Such an Executory devise may be extinguished by release to the first devisee Object That the first devisee had all the interest in him and the other but a possibility which cannot be released as if Conisee of a Statute release his right in the Land yet he may sue Execution It was answered that a thing in Action cannot be granted to a Stranger neither by the Act of the party nor of Law but it may be released to the Terre-tenant and here to him who had the present interest 1. Because as it may be easily created being a Chattell so it may be easily determined 2. Every right as well present as future by joyning all who have interest one way or other may be extinguished so if the Executor and the Sister here had joined in an assignement this had beene good 3. When many things are requisite to the perfection of any thing the Law respects the Originall Act and here the fundamentall acts were the devise death of the devisor the assent of the Executor and death of the first devisee and shee hath a right that may be released and the death of the Executor is but a meanes to bring it into possession as a Feme Covert barreth her selfe of Dower by joyning in a Fine with her Husband but if the Baron sole levy a fine and dyeth and five yeares passe the Feme is not bound so if Tenant in ancient demesne levy a fine he had possibility to have the Land againe if the Lord bring a Writ of desceit but he may release that possibility but
them and after Judgement was given for the Plaintiffs Whistlers Case 10. Jacobi fol. 62. Vpon a speciall Verdict BEfore the Statute of Praerogativa Regis cap. 15. by the grant of the King of a Mannor all appendants without naming them passe and the Statute excepteth Knights Fees Advowsons and Indowments but all other appendants now passe without naming them and so doe Advowsons passe in case of restitution for the Statute speaketh of Grants and in Grants also without expresse mention by the words Adeo plené integré c. See other good matter there touching this Subject The Church Wardens Case of Saint Saviours in Southwark fol. 66. QUeene Elizabeth leased the rectory to the Church-Wardens of St S. for 21. yeares and after leased to them for 50. yeares in consideration of the payment of 20. l. and surrender of the Letters Patents by the Church-Wardens Modo habentes ad presens possidentes and the speciall Verdict found that they paid the 20. l. and that they delivered the Charter in Court to be cancell'd and that they paid the Fees but that no Vacat was made yet the grant is good for it appeares that the intent was not to make a surrender in deed because he saith Modo possidentes but a surrender in Law by acceptance of the second Letters Patents and although a Corporation cannot make a surrender in deed yet they may make a surrender in Law 2. Although an actuall surrender is requisit they have done all which belongs to them by delivery of the Chartar and payment of the fees and the Cancelling belongs to the Court. 3. Although it was recited that 20. l. was paid yet it needs not to be found for it is but in the personalty and is affirmed by the King to be paid and is also executed See Barwicks Case 5. Report 93. The Case of the Marshalsea 10. Jacobi fol. 68. In false Imprisonment AN Action upon the Case upon an assumpsit is brought in the Marshalsea whereas no party was of the Kings House the Plaintiffe recovered the Defendants arrested the Plaintiffe by a precept in the nature of a Capias ad satisfaciendum and he brings false Imprisonment and judgement given against the Defendants 1. Resolved the Steward and Marshall at the Common Law hath two Authorities One generall as Vicegerents of the Chiefe Justice in his absence within the Verge Another as Judges of the Marshalsea This last was limitted to Debt and Covenant where both are of the House and to trespasse Vi armis where one is but not if it concerne Land and because they have the generall authority at will and the other for life they draw many cases to the Marshalsea which ought to be in other Courts Their Jurisdiction by Fleta Lib. 2. cap. 2. Infra metas hospitij continentes 12. Leucas in circuitu And the Statute of 13. R. 2. c. 3. limits the 12. miles to be accounted about the Kings Tonnell 2. The reasons wherefore this speciall authority was given them were 1. Because the Suite there is by Bill by reason of their Priviledge which cannot be elsewhere 2. In respect of the necessity of attendance of the Kings Servants 3. If Strangers shall be suffered to sue there one Carman would sue another Carman there In aula Regis which were undecent but the generall authority vanished by the Act of 28. E. 1. c. 5. which Ordained that the Chancellour and Justices of the King should follow him therefore in Praesentia Majoris cessat c. and about 4. E. 3. the Court of K. Bench became Resident 3. The Statute of Articuli super Chartas is as much as an explanation of the great Charter and the Charter of the Forrest and not introductory of a new Law and the third Chapter of that act explaines the Jurisdiction of the Marshalsea as before and if he hold plea otherwise a prohibition lyeth and the party shall have an Action upon the Case as a consequent upon the Statute 4. That part of the Statute which giveth them Jurisdiction in trespasse shall be intended trespasse Vi armis 5. This action lyeth against the Defendants because the Court had not Jurisdiction and so have not done it by command of the Judge otherwise if the Court had Jurisdiction but proceedeth Inverso ordine or erroneously as if a Capias be awarded against an Earle c. one who is Indicted before Justices of the Peace cannot approve 1. Because he cannot assigne a Coroner 2. Because it is out of their Commission if a Court Leete be holden at another day then it ought to be the proceeding is Coram non judice otherwise it is of a Court Baron 6. R. 2. Action upon the Statute Plac. ultimo in the point that judgement in the Marshalsea when none of the parties is of the K. house may be avoided by plea without any Writ of Error which proveth that it is void Leonard Loveis Case 11. Jacobi fol. 78. In ejectione firmae for 8. acres c. L. L. seised of diverse Mannors in socage and in chivalry In Capite maketh a feoffement to diverse uses in an Indenture precedent whereby he limits to himselfe for life without impeachment of wast and to the use of his Lessees and devisees the remainder to his second Sonne in taile c. the reversion to himselfe with power of revocation after he purchaseth 8. acres in socage and revoketh as to certaine Mannors holden in socage and deviseth them and the 8. acres to his Eldest Sonne and the heires Males of his body for 500. yeares provided that if he alien otherwise then for yeares determinable upon the deaths of three persons or lesse number rendring the old rent or die without issue Male then to his second Sonne in taile with proviso to make Leases according to 32. H. 8. onely L.L. dyeth the Eldest Sonne enters into the 8. acres and dyeth leaving one Daughter who Marrieth R.D. who enters into the 8. acres c. second Sonne dyeth having L. L. who enters upon R. D. and leaseth to the Plaintiffe who enters upon whom the Defendant enters and ejecteth c. and if the entry of L L. the Lessor was congeable or not was the Question and it was adjudged that his entry was not lawfull and judgement was given against the Plaintiffe in this Case diverse points resolved some at the common Law and some upon 32 and 34. H. 8. of Wills 1. Resolv if a man seised of three acres of equall value one holden in Capite and giveth that and one of the other to his younger Sonne in taile he cannot devise any part of the third Acre because he had executed his power and if he purchase other Land in socage he can devise but two parts of that by reason of his reversion in Capite expectant upon the estate taile Object that the K. was once satisfied of the wardship by the Statute in respect of the Acre holden and the reversion thereupon shall not hinder the
or some such inconvenience but a Copy of a record is good evidence if a release be made to Tenant for life this inureth to the reversioner yet he cannot pleade it without shewing a Fortiori here because the Lessee may contract with the Lessor to suffer him to have the deed to shew but Strangers who claime not the thing granted nor interest out of it need not to shew the deed otherwise if he claimes the thing granted or interest out of it Ergo the second grantee of a rent charge must shew the first grant but he who claimes as Gardian or meerly by the Law without privity or power of providing the deed need not to shew it But Tenant by the courtesie must shew it because the deed was in his power living the Wife otherwise of Tenant by Statute c. 3. The not shewing of the deed is matter of substance therefore judgement shall be given against the Plaintiffe in the Writ of Error although it was not shewed as Cause of Demurrer And judgement was affirmed Nota when a plea amounts to a generall issue if the Plaintiffe demurre specially upon 27. Eliz. and the Defendant joyne judgement shall be given for the Plaintiffe Edward Seymors Case 10. Jacobi fol. 95. THe Lord Cheyny Tenant in taile the remainder in taile to I. C. the reversion to the Lord C. bargaines and sells and levyes a fine to the bargainee with warranty to him and his Heires the bargainee nfeoffeth the Lord S. who infeoffeth E. S. I. C. dyes having issue T. the Lord C. dyeth without issue Edward Lord S. leaseth to the Plaintiffe the Defendant by the command of T. ejected him and judgement was given for the Defendant and affirmed in Error 1. Resolved the bargainee had an estate discendible during the life of the bargainor whereof his Wife shall have Dower and also the reversion in fee expectant upon the remainder in taile 2. The fine after bargaine and sale is not discontinuance of the remainder for this operates upon the estate passed by bargaine and sale and corroborateth that and maketh it determinable onely upon the death of the bargainor without issue otherwise if the fine had preceded the bargaine and sale 3. It was Objected that the feoffement of the bargainee displaceth the remainder so that the warranty which discends upon him barreth him But resolv that the warranty doth not bind him 1. Because it was annexed to an estate determinable by the death of Tenant in taile without issue and to the reversion in fee granted by bargaine and sale and fine and not to the remainder in taile and the Conisee by his owne Act cannot make it to extend any further therefore the estate taile being determined the warranty ceaseth 2. A warranty barreth not an estate which is not displaced at the time of the warranty annexed as if the Father maketh a feoffement of Land out of which his Sonne hath a rent with warranty this binds not the Sonne as to the rent 3. The feoffement was lawfull because he had fee therefore he cannot make discontinuance 4. A warranty cannot enlarge an estate the remainder in taile to I. C. was not discontinued for the feoffor was not then seised by force of the taile 5. A collaterall warranty may be given in evidence if it be not pleaded for although it giveth not a right yet it barreth anothers right and the rather in an Ejectione firmae and other personall actions because in them it cannot be pleaded by way of barre Note there are some Titles to which a warranty extendeth not as in case of Mortgage Mortmaine consent to a Ravishor for in these cases no Action lyeth in which Voucher or Rebutter can be neither shall a discent take away an entry Bewfages Case 10 Jacobi Common Pleas. fol. 99. THe Sheriffe upon a Fieri facias executed did take an Obligation of the Defendant to pay the money in Court at the returne of the Writ and this was adjudged good notwithstanding the Statute of 23. H. 6. Before this Statute the Sheriffe could not let any person to baile which was taken Ad respondend as may appeare Fitz. Na. br 25. a b. and in 34. Eliz. in Debt by Dawson Sheriffe of B. against Burnam upon an Obligation the Defendant pleaded the Statute 23. H. 6. and shewed that one K. recovered Debt and damages against him and pursued one Writ of Fieri facias against him directed to the Sheriffe of B. and that he made the Obligation to the Plaintiffe for the Execution and that the Obligation was void by the Statute whereupon the Plaintiffe demurred and it was resolved First that the Obligation was not within the Statute because that the Statute extended onely to such Obligations which any who is in their ward did make unto him Secondly that the same Obligation was not void at the Common Law whereupon the Plaintiffe had judgment and another judgement 28 El. Inter Burwey Kett upon an Obligation taken by the Sheriffe Pro solutione pecuniae debitae dominae reginae upon extent out of the Exchequer Now it is said in the later clause of the Act that if any of the Sheriffs or other Officers or Ministers aforesaid take any Obligation in other forme by colour of their Offices that it should be void c. There are two manner of formes Viz. Forma verbalis forma legalis for Verbalis stands upon the Letters and Sillables of the Act Forma legalis is Forma essentialis and stands upon the substance of the thing to be done and upon the sence of the Statute Quia notitia ramorum hujus Statuti non in sermonum folijs sed in rationis radice posita est and according to this distinction this Branch of this Statute is to be expounded and therefore in 37. H. 6. 1. If the Sheriffe take a single Obligation of one in his ward that was bailable this was void for this Obligation wants essentiall forme prescribed by the Statute for the condition prescribes the fault which is part of the substance And there Moyle said that if the Sheriffe let one to Baile or Mainprise that is excepted in the Statute and not mainpernable and take a simple Obligation that the same is void Quod alij Justiciarij concesserunt for by the exception it appeareth that it was not the intention of the Statute that such should be let to Baile and therefore the Obligation is taken in another sence then the Statute intends And it seemeth to me that as well in the same Case of 37. H. 6. as in the principall Case of Dive and Manningham plow 67. the Obligation which hath the condition to save the Sheriffe harmelesse when the Sheriffe against the Law letteth one to Baile who is not Baileable is against the Law and void by the Common Law And with this accordeth William Wishams Case 15. Eliz. Dyer 324. in 7. E. 4. One was in custody of the Sheriffe by force of a Capias upon an
the Lord Dyer made a Quaere of that if one of the Jurors die before Verdict be given a Tales shall be granted he who is meerly a Defendant cannot pray a Tales untill default be made by the Plaintiffe the number ought to be under the number in the principall pannell except in an appeale because there the Defendant may challenge peremptorily the number shall be diminished in every new Tales and they ought to be of the same quality with the former as if the principall pannell were Per medietatem linguae so shall the Tales be Justices of Assize shall not award a Tales de circumstantibus in an Assize for the Statute of 35. H. 8. c. 6. speaketh where the Triall is Habeas corpora distringas or Nisi prius for an Assize cannot be taken by Nisi prius but must be taken in the proper County and after by advice of all the Justices of the common place and Barons of the Exchequer the judgement was affirmed Humphrey Lofields Case 10. Jacobi fol. 106. In debt upon Bond. D. Leased for a yeare to H. L. and if the parties shall please to renue the terme at the end of that yeare that he shall have for three yeares rendring 40 l. per annum H. L. bindeth himselfe to performe Covenants and faileth of payment of 20 l. at Christmas Quarter D. bringeth debt It was resolved for the Plaintiffe It was objected against the action 1. That the reservation was upon a contingency if the terme shall revive 2. Because the reservation is durante termino praedicto Viz. the last terme 3. The reservation shall be taken strictly because the words of the Lessor But it was resolved that the reservation extendeth to the first yeare for the proper place of a reservation is after the limitation of the estate as if a Lease be made with diverse remainders over reserving Rent this goeth to all and although the second terme be in contingency yet the first is certaine and Termino praedicto signifieth both the termes for it is Nomen collectivum and the reservation shall be taken reasonably according to the intent of the parties Tenant in taile of an Acre in borough English and of another by the Common Law by an Oxe dyeth having issue two Sons the service shall not be increased And Increase is onely betweene very Lord and very Tenant for there may be an increaser but not where there is a reservation or if the Seigniory be by Deed and services are reserved within time of memory for he shall have no more then he himselfe reserved In the Case at Barre in respect the obligation was forfeited the Court moved the Plaintiffe to take his arrerages costs and damages with which he was contented and so no judgement was given Arthur Legats Case in subversion of pestilent Patents of theevish Concealors 10. Jacobi fol. 109. in Communi Banco THe King ex certa scientia c. grants fifteene Acres as concealed which were parcell of a Mannor of the profits whereof the King was answered Nothing passeth 1. Resol If the King were answered of the old Rent of the Mannor and the Fermors c. suffer one to intrude in part this is not concealed 2. The grant is voyd for quae quidem c. is the suggestion of the party 2. This is a clause of restraint and nothing passeth which is not concealed 3. The King did not intend to diminish his Revenue which will be if the grant be good 4. The clause quae quidem hath a double conjunctive concelata detenta and Land cannot be detained from the King 3. Ex mero motu c. aydeth it not 4. If the Officers of the King may by matter of Record have notice of putting the Land in charge in Court of Record and doe it not yet this is not concealed and if the clause quae quidem be added for more certainty the grant shall not be vicious by it if it be false as if a Mannor be granted quod quidem was in the tenure of I. S. where it was not this is good If one substract or take the Kings Rents this is not concealed for the King may charge him as Baily and the Law will make a privity See the Statute of 4. H. 4 cap. 4. called in the Rolle Brangwyn in English White Crow And it was sayd that Perpetuities Monopolies and Patents of concealement were borne under one unfortunate constellation for as soone as they came in question judgement was ever given against them and none ever for them and they have all two inseperable qualities Viz. to be troublesome and fruitlesse Robert Pilfolds Case 10. Jacobi fol. 115. THe Plaintiffe in trespasse counts to damages of 40 l. and at the Nisi prius the Jury assessed for damages 49 l. and 20 s. costs at the day in banke hee released 9 l. parcell of the damages and had judgement of 40 l. and 10 l. for costs de incremento the defendant brings error because the damages and costs surmount the summ in the Count but judgement was affirmed for in reall actions before the Statute of Glocester 6. E. 1. cap. 1. no damages were recoverable but in personall actions and mixt they were and by that Statute a man shall have costs in all cases where he recovers damages Viz. before or by the same Statute therefore if after this damages are given where they were not at the Common Law costs shall not be recovered as in a Quare impedit but if a Statute after this give double or treble damages where damages and costs were by the common Law there the Plaintiffe shall recover the damages increased and costs also but in waste against tenant for life costs shall not be recovered for although that this Statute was at the same Parliament yet it was an act of Creation and therefore no costs And true it is that damages include costs in a generall sense but in the count it is taken for damages before the action brought in a relative signification therefore expensae litis may be added to it although he count not of them as a man shall doe in reall actions without counting of them because he shall recover them pending the Writ In entrie sur disseisin the Plaintiffe shall recover damages from the disseisin to the Writ of Inquiry c. and if the issue be tryable by verdict c. to the verdict but in a Praecipe of Rent of his owne possession hee shall recover all arreares to the judgement Judgement affirmed by all Cheyneyes Case 10. Jacobi fol. 118. IN a Valore maritagij issue is joyned upon the tenure and found for the Plaintiffe but the Jury did not inquire of the value Adjudged the verdict is insufficient and shall not be supplyed by a Writ of Inquiry 1. In this Writ three things are to be recovered the value damages and costs and although the issue be joyned upon the tenure yet as a consequent upon the issue and their charge they ought to
devise is good for two parts for the reasons reported in Loveyes Case 5. Although the consideration of advancing his Wife and their issues extends not to the Brothers yet the use is well raised to them because the Law implyeth a consideration and it is not to the purpose that they are found Brothers because it appeareth in the Deed. 6. For the Mannor of G. the estate tayle vanisheth by the death of Sir H. without issue male and therefore that estate is no cause to restraine the devise for any part but the reversion in fee is for a third part So resolved that the Plaintiffe shall have judgement for two parts Exceptions to the count and Visne 1. The Ejectione firmae is of Tithes without shewing the kinds of them Ergo not good for a certaine judgement and execution cannot be made 2. It may be it is in a modus decimandi for which an Ejectione firmae lyeth not 2. Capella is demanded which ought to be demanded by the name of a house 3. The Venire facias is not well awarded for it appeares that there are two B. one a Ville the other a Parish and W. a Ville in the Parish of B. and the Tithes are alleadged to be in W. in parochia de B. so the Visne must be out of B. and W. because there is the most certainty so that by reason of these exceptions no Judgement was entred but it was sayd that the Court of Wards where a Bill depends for this matter will take order for the possession accordingly Henry Pigots Case 12. Jacobi fol. 26. B. W. brings debt upon Obligation made to him when he was Sheriffe omitting the name of his Office but it was after interlined by a stranger the Defendant pleads Non est factum without Oyer of the Deed and judgement was given for the Plaintiffe 1. When a Deed is rased the Obligor may plead Non est factum 2. If a Deed be rased by the Obligee himselfe in a place not materiall it is voyd but not if done by a stranger except in a place materiall and here it was in a place not materiall because it appeareth not to the Court that he was Sheriffe If a Deed consist of diverse parts whereof one doth not depend upon the other and some of them are against Law the Deed is good in part but if any of them be rased it is voyd in all so if the Seale of one be debrused all is voyd See Matthewsons Case in the fifth Booke Alexander Powlters Case 12. Jacobi fol. 29. Indictment A. P. felleo animo burned a House in New-market whereby the greatest part of that Towne was burned Resol He shall not have his Clergy for this was felony by the Common Law and so haynous that he was not replevishable no more then for Treason as appeares by Westminst 1 cap. 15. but he shall have his Clergy at the Common Law for impediments to have Clergy were first disability to be a member of holy Church as a blind man or woman 2. Heresie 3. Infidelity as a Saracen or Jew but a man excommunicated or outlawed shall have it 5. Confession before the Statute of Articuli Cleri cap. 15. because he cannot make his purgation 6. High Treason or petty Treason before 25. E. 3. cap. 4. So of Sacriledge and of insidiatores viarum depopulatores agrorum See the Statute of 4. H. 4. cap. 2. but the Statute of 23. H. 8. cap. 1. taketh away Clergy where one is found guilty of burning of Houses but that is to be intended by verdict or confession for if hee stand mute or challenge more then he ought or be outlawed these are out of the Statute or if he commit Burglary and not Robbery he shall have his Clergy by 25. H. 8. cap. 3. hee who is found guilty of any of the sayd offences shall loose his Clergy and if he stand mute or challenge above his number but that extends to the principall onely in case of indictment and not to the accessory before the fact nor to appeales or approvements nor to outlary but these two Statutes were taken away by 1. E. 6. cap. 12. but 25. H. 8. was revived by 5. 6. E. 6. cap. 10. Obj. That the sayd Statute was not revived in all but as to stealing of Goods in one County and flying into another for so is the stile of the Act. 2. If it be revived this takes not away Clergy where one is found guilty by Verdict but the Statute of 23. H. 8. which is not revived But it was Reâ—olved that the intire Act is revived 1. Although the Statute of 5. E. 6. reciteth these offences solely and reviveth the Act as to Clergy touching such offences that shall be intended such in mischeife so Westminster 2. cap. 5. is expounded touching Infants having advowsons whether they be in ward or not and the stile is not to the purpose for many Statutes are of greater extent then the stile as 27. H. 8. of uses concerning Joyntures yet the preamble is of transferring uses into possession also otherwise these words and every clause c. shall be surplusage if it extend not to all the Act for there is but one clause in it which concerneth the offences in 5. 6. E. 6. also it is that every Article concerning Clergy as to such offences shall be revived and there is but one which concernes these offences and many times penall Statutes are taken by Equity as 8. H. 6. cap. 12. ordaineth that the imbezelling or withdrawing a Record whereby a Judgement may be reversed shall be Felony and by Equity making of a badd Judgement good is Felony so 25. E. 3. for killing of a Master extends to the Mistris 2. 25. H. 8. takes away Clergy where one is found guiltie by Verdict because it takes away if he stand mute or challenge c. in like manner as if he were guilty after the Lawes of the Land which are affirmative words And 4. 5. Phil. Mary cap. 4. takes away Clergy from the accessory before which they would not have done if they had not thought that it was taken away from the principall by the other Act. By 18. Eliz. cap. 7. Clergy is taken away in case of Burglary where hee is found guilty by Verdict confession or Outlary but if he be indicted at the Common Law and stand mute or challenge over c. he shall have it and not if hee be indicted by 23. H. 8. or 5. E. 6. of Burglary and put them who were in the House in feare with Robbery or upon 1. E. 6. without Robbery 4. 5. Phil. Mary takes away Clergy where one is accessory before to a Robbery in a dwelling House Ergo before that such an accessory shall have it Breaking of a House in the night without Robbery is no Burglarie and if he doth robb he shall have his Clergy if none were put in feare or that any of the Family and not
4. In this Case by grant of the reversion generally or of the Tenements the Trees passe for the inheritance of all the Land passeth and thereby the Trees annexed to it the disseisee by his entry shall have the Corne upon the ground as well as the Grasse by relation of continuance of possession but this relation is not of effect to have a trespasse against any but the first disseisor for in fictione juris semper aequitas existit and the emblements shall be recovered in damages 5. In the Case at Barr by exception of the Trees power is reserved to the lessor or his servants to enter and show the Trees to the Vendee Cuicunque aliquis quid concedit concedere videtur id c. 6. The plea in Barr is insufficient for he showeth that there was another joyntenant for life not named in the Writ and demands Judgement if action which is an unapt conclusion 2. The Plea is double one to the Writ another to the Action 3. He pleads the entry of the lessees for life which is surplusage 4. Hee averreth not that the Trees which were sold were nor Dotards which are excluded out of the exception but that they de jure pertinebant to R. L. which is not formall but upon all the matter there appeared sufficient cause to give Judgement against the Plaintiffe and therefore by the rule of the Court Quaerens nil capiat per billam The Case of the Taylors of Cloaths c. of Ipswich 12. Jacobi fol. 53. THe Taylors of I. make an Ordinance that none shall exercise the Trade in I. if he have not been an Apprentice for seven yeares and if hee doe not appeare before them to be approved upon forfeiture of five Marks and for breach of it bring debt the Defendant pleads that he was reteined by A. P. to be a domestick Servant and that he made Garments by his command 1. Resol At the Common Law none may be prohibited to exercise any Trade although he hath never been an Apprentice and be ignorant but if he misdoe any thing an action of the Case lyeth 2. This Ordinance for so much as is not prohibited by the Statute of 5. Eliz. is against Law for after seven yeares Apprentiship he may exercise his Trade without allowance of any 3. The Statute of 5. Eliz. doth not prohibite the private exercise of any Trade in a Family therefore this is out of the said Ordinance 4. The Statute of 19. H. 7. cap. 7. doth not corroborate any Ordinance against Law if it be allowed but the allowance dischargeth the penalty of 40 l. for putting in use any ordinances which are against the Prerogative of the King or the common profit of the people and Judgement was given Quod querentes nil caperent per billam Edward Savells Case 12. Jacobi fol. 55. AN Ejectione firmae lyeth not of a Close but it must be of a certaine number of Acres and the nature of them must be shewed A Writ shall not abate for want of order Viz. Of a House before Land c. and judgement was stayed Benthams Case 12. Jacobi fol. 56. IF damages or costs are omitted or not well assessed by the Jury if the Plaintiffe release them he may have his judgement and it shall not for that be reversed Insufficient assessement of damages and no assessing is all one Doctor Fosters Case concerning Recusants 12. Jacobi fol. 56. AN Information was preferred against a Recusant by an Informer Tam pro domino rege quam pro seipso before the recusant was convicted for 220. l. that is 20. l. a Moneth for a 11. Moneths absence from the Church c. And judgement given against the Defendant 1. Resolved that he may be convicted to satisfie the Statute of 23. Eliz. in this same Suite and convicted shall be taken for attainted for he shall forfeit nothing before judgement 2. The Branch of distribution in the Act of 23. Eliz. extendeth as well to the clause of penalty for recusancy as to that of hearing or saying Masses for it is all one to say shall forfeite and shall forfeite to the King 2. Diverse acts of Parliament give the penalty to the King and yet after make a distribution thereof to another who will sue as 3. H. 6. cap. 3. 3. H. 7.3 3. He against whom judgement is given upon demurrer or default or otherwise is convicted within the Statute for he is attainted which implieth it for it is so found by the Judges so by the Statute of 8. H. 6. treble damages are given where a disseisin is found to be with force this extends to a judgement by Nihil dicit or default 4. The Statute of 28. Eliz. doth not take away the Statute of 23. which giveth liberty to the informer c. for 1. It is made for more speedy execution of it 2. It doth not alter the suite of the party but of the King and leaveth the Informer as he was before 3. The Act of 28. giveth not the penalty to any new person for it was given to the K. by 23. Eliz. 4. The Statute of 28. extends onely to Indictments and toucheth not informations 5. The Defendant is not within 28. Eliz. if he be not convicted at the suite of the K. Ergo this is left as before 6. Because the Statute is in the affirmative and they may stand together but the Statute of 28. alters the Statute of 23 in this that it confineth Suites against Recusants in the K. Bench or Assizes c. which clause extends as well to the suite of the informer as of the Queene and the Statute of 35. Eliz. and 3. Jacobi inlarge the Jurisdiction as to Suites of the K. and touch not the suite of the party 5. The Statute of 35. taketh not away the Action popular given by 23. for it was made to give more speedy remedy and not to take it away a feme Covert is within the Statute of 23. and 1. Eliz. but before the Statute 35. Eliz. if a Feme Covert had been indicted of recusancy the forfeiture should not have been levyed of the goods of the Husband because he was not party thereunto otherwise in an Information or Debt brought by the informer and in that that the Statute of 35. is that the K. shall recover all the paines c. in such sort c. this alters the remedy onely as to the Queene for now shee may proceede by action as for recovery of any other Debt by the Common Law in such manner as 1. H. 7. c. 1. giveth a Formedon against Parnor of the profits c. also 35. Eliz. is in the affirmative and although it giveth the penalty of 20. l. by the Moneth yet it taketh not away 1. Eliz. which giveth 12. d. for every Sonday and Holy day and where this Statute saith that the conviction shall be in the K. B. or at the Assizes yet the Justices of Peace and others authorized by 23. may take
206 Lord Cheneys case Cases of Usury fol. 208 Buttons case Claytons case fol. 208 Hoes case St. Johns case fol. 209 Williams case Case of Orphanes of London Wymarks case fol. 210 Cliftons case fol. 211 Pilkintons case Earl of Pembrooks case Pagets case fol. 212 Boothes case fol. 213 Samons case Grayes case Fitz Herberts case fol. 214 Fords case Case of of customs Snellings case fol. 215 Case of Market Overt Perimans case Sir Henery Knevits case fol. 216 Pennrins case Cases of Executions Blumfields case fol. 217 Garnons case fol. 218 Frosts case fol. 219 Hoes case fol. 220 Semaynes case fol. 221 Barwicks case fol. 223 Goodalls case Countesse of Northumberl case Buries case fol. 224 Flowers case Rookes case fol. 225 Penruddocks case fol. 226 Windsors case Hungats case fol. 227 Bakers case Boulstons case fol. 228 Aldens case Sir Henry Constables case fol. 229 Foxleyes case fol. 230 Malaries case Wades case fol. 232 Foliambs case Olands case Pynners case fol. 233 Edriches case fol. 234 Whelpdales case Longs case fol. 235 Saffins case De libellis Famosis fol. 236 Palmers case Caudreys case fol. 237 The Sixth Booke BReuertons case fol. 239 Markals case fol. 240 Sir John Molins case fol. 241 Wheelers case Ferrers case fol. 242 Spencers case fol. 243 Gentlemans case Morrices case Cases of Pardon fol. 244 Arundels case fol. 245 Treports case Edens case Colyers case fol. 246 Wildes case Sir Edward Cleers case fol. 247 Packmans case fol. 248 Gregories case Michelborns case fol. 249 Butler and Goodalls case Ambrosia Gorges case fol. 250 Marquesse of Winchester his case Reades case Helyars case fol. 251 Ruddocks case Sharps case fol. 252 The case of Souldiers Vicont Mountagues case fol. 353 Greenes case fol. 254 Boothies case Fitz Willams case fol. 255 Bishop of Baths case fol. 256 Dean and Chapter of Worcesters case fol. 257 Bellamyes case Henery Finches case fol. 257 Sir Anthony Mildmay Blakes case fol. 258 Higgins case Dowdales case fol. 259 Boswels case fol. 260 Countesse of Rutlands case fol. 261 Lord Chandows case Bredimans case fol. 262 Gatewards case fol. 263 Catesbies case fol. 264 Sir Moyle Finches case fol. 265 Lord Darcies case fol. 266 Burrels case Sir Drue Druries case fol. 267 Sir Gorge Cursons case fol. 268 Bullens case Lord Abergavennies case Sir Edward Phittons case fol. 269 The Seventh Booke CAlvins case fol. 271 Bulwers case fol. 273 Sir Miles Corbets case fol. 274 Gendils case fol. 275 Milbornes case Earle of Bedfords case Oghtreds case fol. 276 Englefields case fol. 277 Case of Swannes fol. 279 Sir Thomas Cecills case Lord Andersons case fol. 280 Butts case fol. 281 Cases of Quare Impedit Halls case fol. 282 Sir Hugh Portmans case Baskervills case fol. 283 Mauds case Discontinuance of processe by the death of the Queen fol. 284 Case of a Fine levied by the King fol. 285 Nevils case Penall Statutes fol. 286 Lillingtons case Bedels case fol. 287 Beresfoeds case Kenns case fol. 288 The Eighth Booke THe Princes case fol. 291 Calyes case Paynes case fol. 293 Barretry Greysleyes case fol. 294 Whittinghams case fol. 295 Jehu Webbs case fol. 296 Sims case fol. 297 Roger Earl of Rutlands case fol. 298 Beechers case fol. 299 Swaines case Sir William Fosters case fol. 300 Lovedayes case Crogates case fol. 301 Trollops case fol. 302 Whitlocks case Greenlyes case fol. 303 Lord Staffords case fol. 305 Wiat Weilds case fol. 306 Vinyors case Sir Richard Pexals case fol. 307 Buckmers case fol. 308 Frauncis case fol. 309 Foxes case fol. 310 Mannings case fol. 311 Baspoles case Sir Richard Lechfords case fol. 312 Talbots case fol. 313 Doctor Bonhams case fol. 314 Case of the City of London Case of Thetford Schoole fol. 316 Turnors case fol. 317 Shiplyes case Sir John Nedhams case fol. 318 Sir Francis Barringtons case fol. 319 Doctor Druries case fol. 320 Davenports case The Six Carpenters case fol. 321 Edwards Althams case fol. 323 Arthur Blackamores case fol. 324 Cases in the court of wards Myghts case fol. 326 Digbies case Earl of Cumberlands case Paris Stoughters case fol. 327 Toursons case Sir Gerard Fleetwods case fol. 328 Hales case Sir Henry Constables case fol. 329 Virgill Parkers case fol. 336 The Ninth Booke DOwmans case fol. 331 Anna Beddingfields case fol. 332 Case of Avowry fol. 333 The Abbot of Strata Marcella his case fol. 334 Bucknals case Henslowes case fol. 336 Earle of Shrewsburies case fol. 339 Hickmots case fol. 340 Batens case fol. 341 The Poulters case Aldreds case fol. 342 Lambs case fol. 343 Bradshawes case Mackallies case fol. 344 Peacocks case fol. 346 Doctor Husse case fol. 347 Combs case fol. 348 Petoes case fol. 349 Agnes Gores case Coneys case fol. 351 Pinchons case fol. 352 Banes case fol. 354 Sir George Reynels case fol. 355 Podgers case fol. 356 Treshams case fol. 357 Marys case fol. 358 Lord Sanchars case fol. 359 Cases in the Court of wards Lawes case fol. 360 Floyers case fol. 362 Sondayes case Quicks case fol. 363 Bewleys case Holts case fol. 364 Menes case fol. 365 Ascoughs case fol. 366 Thorogoods case fol. 367 Beaumonts case fol. 368 The Tenth Book THe case of Suttons Hospitall fol. 371 Portingtons case fol. 374 Lampets case fol. 375 Case of the Chancellor Masters Scholars of the University of Oxford fol. 378 Bishop of Salisburies case fol. 379 Whistlers Case Church-wardens Case of St. Saviours in Southwark fol. 381 The Case of the Marshalsea in false imprisonment fol. 382 Loveis Case in Ejectione ferme fol. 384 Doctar Leyfields Case fol. 387 Seymors Case fol. 389 Bewfages Case fol. 391 Denbawds Case in Error fol. 396 Lofields case in debt upon bond fol. 397 Legats Case fol. 398 Pilfolds Case fol. 399 Cheyneyes Case fol. 400 Case of the Major and Burgesse of Lin fol. 401 Cluns Case fol. 402 Osborns Case fol. 403 Read and Redmans case fol. 404 Richard Smiths Case fol. 405 Cases upon the Commissions of Sewers Case of Chester Mille Keighleys case fol. 406 The Case of the Isle of Elie fol. 407 Scroops Case fol. 409 The Eleventh Book THe Lord Delawares case fol. 411 Auditor Curles case fol. 412 Sir John Heydons case fol. 413 Priddle and Nappers case fol. 414 Doctor Grants Case fol. 416 Sir Henry Nevils case fol. 417 Doctor Ayrays Case fol. 417 Henry Harpurs case fol. 418 Henry Pigots case fol. 420 Alexand. Poulters case fol. 420 Metcalfes case fol. 423 Richard Godfreyes case fol. 425 Richard Lifords case fol. 426 The Taylors of Ipswich case fol. 428 Edward Savels case fol. 429 Benthams case fol. 429 Doctor Fosters case fol. 429 Magdalen Colledge case fol. 432 Lewis Bowles case fol. 34 The Case of Monopolies fol. 436 The Earle of Devonsh case fol. 437 James Bagges case fol. 438 THE FIRST BOOK The Lord Buckhursts Case 40. El. fo 1. IF a man for him and his heires do warrant Land to one and his heires this is a generall warrantie because there is not
a restraint against any particular person in certeine Vpon a Feoffement without warranty the Feoffee shall have all the Charters which comprize warranty and others though they be not given to him because hee is to defend the Title at his perill Upon a Feoffement with warranty without expresse grant the Feoffee shall not have any Charters which serve for to deraigne the warranty paramount Also the Feoffer shall have all Charters which serve for maintenance of the Title but the Feoffee shall have all which maintaine the possession as Court Rolls and which are concomitant and incident to the possession If A. be seized of a Segniorie rent advowson or other thing that lyeth in grant and grant the same over unto B. with warranty and B. grant that to C. with warranty In this case C. shall have the first deed although B. be bound to warrantie for without that he cannot make any Defence against A. or any claiming by him Pelhams Case 32. El. fo 14. A Tenant for life the remainder in Taile the remainder in fee bargaines and sells the Land to one who before the Statute of 14. El. ca. 8. suffers a recoverie in which A. is vouched and voucheth over and he in remainder enters and the entry is adjudged lawfull for the Recovery is a Forfeiture and the remainder may enter for it is the common Assurance As if Tenant for life had levied a Fine c. and suing of execution doth not toll the entry of the remainder and a Writ of error was sued and the plaintiffe release the errors Porters Case 35. El. fo 22. 32. H. 8. P. devised a house to his wife and her heires upon condition that she by advise c. with all convenient speed after his death should assure it c. for maintenance of a Free School c. for ever and dyes 32. H. 8. the wife enters and 3. E. 6. leases to A. for yeares the heire of P. enters and his entry adjudged lawfull because 23. H. 8. extends not to good uses nor doth it make the conveyance voyd or give entry but makes the use voyd and admit the use voyd yet the condition is not for Counsell may devise c. as to have a Corporation by Pattent and licence to assure and therefore the wife ought to have performed it Any man at this day may give Lands Tenements or hereditaments to any person or persons for the finding of a Preacher maintenance of a Schoole maimed Soulders poore people reparation of Churches High-wayes Bridges marriage of poore maids or any other charitable uses But it is good policy in every such Feoffment or estate to reserve to the Feoffor and his heires any small rent or to expresse some small summe of money for the consideration of the cause before recited Altonwoods Case 42. Eliz. fo 41. H. 8. seised of an estate Taile to him and the heires males of his body and of a Fee expectant grants in Taile and dyes without issue male adjuded that the grant is voyd for the King had an estate Taile in possession by which he might grant a lawfull estate for his own life and a Fee by which he might grant an estate Taile by speciall recitall And these words ex speciali gratia c. shall not produce a strainable construction against the rules of Law or in deceptionem regis Capells Case 23. Eliz. fo 62. A Tenant in Taile the remainder to B. in Taile B. grants a rent charge A. suffers a common recovery and dyes without issue the grantee distraines the Alienee of A. brings a Replevin adjudged for the alienee by all the Justices of England that a common recoverie against a Tenant in Tayle shall binde not onely the remainder and all Leases charges c. granted or made by him in remainder but also the Reversion and all Leases charges c. granted by him in reversion Archers Case 39. 40. Eliz. fo 66. LAnd was devised to the Father for life the remainder to the next heire male of the Father and to the heires males of his body the devisor dyes the Father infeoffes J. S. with warranty First it was resolved by Anderson and Walmeslowe et tot Cur. that the Father had but onely an estate for life for that he had an expresse estate for life demised unto him and the remainder is limitted to his next heire male in the singular number and his right heire male may not enter for the forfeiture in his life for he cannot be heire so long as he liveth Secondly It was resolved that the remainder to his right heire is a good remainder although he cannot have a right heire during his life but it sufficeth that it vesteth eo instanti that the particular estate determineth Dyer 14. Eliz. fo 309. Thirdly it was resolved which was the principall poynt in this case per tot Curiam that by the Feoffment of the Tenant for life the remainder was destroyed for every contingent remainder ought to vest either during the particular estate or at the least eo instanti that the particular estate determineth for if the particular estate be ended or determined in Deed or in Law before the contingency fall the remainder is voyd And in this case by the Feoffment of the Father his estate for life was determined by condition in Law which cannot be revived by any possibilitie for this cause the contingent remainder is voyd for by the Feoffment no right of the particular estate remaineth and the better opinion was that the warranty bindes the remainder though in Abeyance Bredons Case 39 40. Eliz Fol. 76. TEnant for life and the remainder in Taile joyne in a fine Come ceo c. to A. who renders a Rent charge of 40. l. a yeare to Tenant for life the remainder dies without issue the second remainder in taile enters Tenant for life distraines for the Rent adjudged he may and that the rent remaines after the death of Tenant in taile without issue during the life of Tenant for life the fine was no discontinuance for every one gave that which he might lawfully give and t is no forfeiture by Tenant for life for the Law construes this First to be a grant of him in remainder and after the grant of Tenant for life Vt res magis valeat c. If Tenant for life and the first remainder in Taile make a feoffement t is no discontinuance though the first remainder in taile dies without issue nor is it a forfeiture but the feoffee shall hold it during the life of Tenant for life but if it be without deed then t is a surrender of Tenant for life and the feoffement of the remainder Vt res magis valeat c. Corbets Case 42. Eliz Fol. 84. of Perpetuities C. Covenants to stand seised to the use of himselfe for life and after to the use of A. his Eldest Son and the Heires Males of his body the remainder to the use of B. his second Son and the
the estate of the land which all the Court agreed 5. If the Fine had not been the auncient uses were determined without entry or claime because he himselfe was tenant for life of the land and the act of revocation is as strong as claime and this point was agreed in the Earle of Salops case 6. By the same conveyance that the auncient uses are revoked others may be raised without claime or other act and the Law adjudges a priority of operation Whites case adjudged according Maildmayes Case 24. Eliz. fo 175. A Use cannot be raised by any covenant proviso or bargaine c. upon a generall consideration and therefore if a man by Deed indented and inrolled c. for divers good causes considerations bargaine and sell his Land to another and his heires nihil operatur inde for no use shall be raised upon such generall considerations for it doth not appeare to the Court that the bargain or had quid pro quo But the bargainee may averre that money or other valuable consideration was paid or given if in truth it was so and the bargaine and sale is good It was resolved that when uses are raised by covenant in the consideration of advancement of any of his bloud and after in the same Indenture a Proviso that the Covenantor may make Leases for yeares c. that the Covenantor in this case may not make Leases for yeares to his sonne daughter or any of his bloud much lesse to any other person because that the power to make Leases for yeares was voyd when the Indenture was sealed and delivered For the covenant upon this generall consideration will not raise any use and no particular averment in this case may be taken but if the uses be limitted upon a recoverie fine or feoffment there needeth not any consideration to raise any of the uses Resolved that the words other consideration cannot comprise any consideration expressed in the Indenture before the proviso for other ought to be in quality nature and person different and advancement of his daughter is a consideration mentioned before Anthonie Mildmay brought an action of the case against Roger Standish for saying that Lands were lawfully assured to John Talbott for 1600. yeares and that he was lawfully possessed of the same tearme whereas in truth the said Lands were not lawfully assured for the said tearme nor the said John Talbott was lawfully possessed of the interest thereof And so for slaundering of the title by speaking of the words Mildmay brought an action Standish justified the words and shewed the title of Talbott and it was adjudged that the action was maintaineable and good although that Talbott had a limitation of the Land by will which was the reason that Standish being a man not learned in the Lawes affirmed the words yet because he tooke upon him the notice of the Law and medled in a matter that did not concerne him Judgement was given for Mildmay Et ignorantia juris non excusat THE SECOND BOOK Of Sir Edward Cooke Lord c. Mansers Case 26. Eliz. fo 3. IF a man be unlearned and cannot read and be bound to doe an act of sealing assurances writings c. upon tender c. he is not bound to seale and deliver any such writing if there be not some ready which may read the Deed if the party so require it and in the same language and tongue that he understandeth Ignorantia duplex est facti juris and ignorance in reading or of the language Quae sunt ignorantia facti may excuse but ignorantia juris non excusat and if it be read unto him he may not have a reasonable time to shew it to his Councell learned to see whether it agree with his bond or covenant for he must seale it at his perill or if the same be truly expounded to him it is good enough But if it be read amisse or declared contrary to what it is and thereby the illiterated man is deceived he may very well plead non est factum For the Law saith it is not his Deed and so it was adjudged in Throughgoods case being the third case in this second Booke Resolved that if a man be bound that a stranger shall doe an act in such case he takes upon him that he shall doe it at his perill for he which is bound takes more upon him for a stranger then for himselfe in many cases If a man plead that he hath kept a man indemnified c. he ought to shew how otherwise where he pleads in the negative Non fuit damnificatus Goddards Case 26. El. fo 4. AN obligation dated the fourth of Aprill Anno 24. El. and delivered as the Deed of the partie 30. July An. 23. El. adjudged the Deed of the partie for though the plaintiffe in pleading cannot alledge the delivery before the Date because he is estopped yet a Jury which are sworne to speake the truth shall not be estopped The Date of a Deed is not the substance of the Deed. For if it want date or have an impossible Date as the 30. February the Deed is good For there are three things of the essence or substance of a Deed viz. writing in paper or parchment sealing and delivery And if it have these three although it want In Cujus rei testimonium Sigillum suum apposuit c. yet the Deed is good and when a Deed is delivered it takes effect by the delivery not by the date Throughgoods Case 26. Eliz. fo 9. REsolved that 't is not materiall whether the party to whom the Deed is made or another by his procurement or a Stranger of his owne head reades the writing in other words then the writing is so that he that seales it be a lay man and without covin in him deceived and the pleading of it is alwayes generall without shewing by whom 't was read and A. shall voyde an obligation to B. by pleading that he did it â—y menace of C. Resolved that such a lay-man is not bound to deliver a Deed if no body be present that can reade it in such language as he can understand and if it be read in other words it shall not binde him and 't is at the perill of him to whom 't is made that the very effect and purport of it be declared if it be required but if he doe not request it he shall be bound by it though it be made contrary to his meaning Resolved that it shall not binde if the effect be declared in other words then it is as if the Deed had been read in other words Two Justices a Feoffement of two acres is read as of one it shall not binde see Mansers case before Wisemans Case 27. Eliz. fo 15. TEnant in tayle of certaine Lands the remainder to another in Fee he in remainder by Deed indented and inrolled in consideration of bloud c. as for other good considerations doth covenant to stand seized of the said
estate shall be voyd upon tender of 10. l. Tenant in taile suffers a Recovery to the use of himselfe and his heires after the remainder tenders the ten pounds c. Resolved the remainder to the Queene was voyd 1. Because the grantee for life of tenant in taile tooke nothing for 't is a voyd grant for the grantee shall never have any benefit by it but such a grant of a reversion were good for he shall have the services but a lease for life of J. S. the remainder to J. H. for life of J. S. is good for this may take effect by forfeiture of tenant for life and remainder dicitur quasi terra remanens which cannot be here and the remainder must take effect when the particular estate ends vana est illa potentia quae nunquam venit in actum And the possibility for tenant in taile to enter in Religion shall not make the remainder good because 't is remote and it ought to be a common propinqua possibilitas which shall make the remainder good as death coverture dying without issue remainder to a Corporation which is not in esse is voyd though such be erected during the particular estate 2. Because the Law will never adjudge a grant good by reason of such a forraine possibility for 't is potentia remotissima vana and by intendment nunquam venit in actum 3. Because the remainder being tenant in taile granted all his estate for the life of tenant in taile so that there is no remainder left in the grantor but in such case the estate taile is in abeyance Blithmans case 35. of the Queene agreed tenant in taile covenants to stand seised to the use of himselfe for life and after to his eldest Sonne in taile the remainder to the Sonne is voyd for when he had limitted the use to himselfe for his owne life 't was as much as he could limit by Law Resolved admitting the remainder good to the Queene that the common Recoverie hath barred the estate of the first grantee and so the condition during his life for 't is out of the Statute of 34. H. 8. being not of the gift of the Queene c. as Wisemans case is before adjudged A revertioner upon an estate taile grants upon condition a Recovery barres the reversion and condition and as Capels case is before adjudged if the reversionor or he in remainder grant a Lease c. and tenant in taile suffers a recovery the possession shall never be subject to such charges Resolved that the payment to the first grantee cannot devest the remainder out of the Queene 1. Because the condition during the life of the first grantee was discharged 2. Because he that takes benefit of a condition ought to have the intire estate with which he departed which cannot be here for the estate of the first grantee was barred by the recovery 3. The tender to the first grantee was to the intent for to revest his estate which cannot be because 't was barred and therefore the payment cannot devest the remainder out of the Queene Buckleys Case 40. Eliz. in Communi Banc. fo 55. TEnant for life the remainder in Fee tenant for life maketh a Lease for foure yeares in March 20. El. the Lessee entreth tenant for life granteth the tenements aforesaid to C. to hold from the feast of Saint John Baptist next ensuing for life after the said Feast the tenant for yeares attornes the yeares expire C. enters and maketh a Lease at will to D. to whom the tenant for life levieth a Fine he in remainder in Fee entereth and maketh a Lease to Buckler the tenant at will entreth upon him and Buckler the plaintiffe bringeth an ejectione firmae and judgement was given for the plaintiffe In this case divers things were resolved First that the grant to C. was voyd for the Law maketh construction upon the whole grant and an estate of Free-hold may not commence in futuro The office of the premisses of a Writing viz. Feoffment Lease c. is to expresse the grantor the grantee and the thing granted And the office of the habendum is to limit the estate so that the generall implication of the estate which should passe by the premisses is alwayes controlled and qualified by the habendum as a Lease to two habendum to the one for life the remainder to the other for life here the generall implication of joyntenancy is altered and the habendum is not contrary to the premisses for in the premisses no certaine estate is passed and the grant being voyd at the beginning the attornement after Midsommer shall not make the reversion to passe For quod ab initio non valet tractu temporis non convalescet Resolved that when the grantee entered by colour of this voyd grant he was a disseisor but when the grant is good at commencement but is to have its perfection by an act subsequent as livery or attornement and the grantee enters before the perfection c. he is not a disseisor but a tenant at will And if the Fine had been levied to the disseisor come ceo c. He which had the right of the remainder might enter for a forfeiture for a right of a particular estate may be forfeited and entry given to him who hath but a right Resolved the Fine being levied to tenant at will 't is a forfeiture and he which hath the right of the remainder may enter and the tenant for life and at will shall be estopped to say quod partes Finis nihil habuerunt and of such estoppells which are by matter of Record and trench to the dis-inheritance of those in reversion c. they shall take advantage though strangers to the Record for they are privies in estate A disseisee levieth a Fine to a stranger the disseisor shall hould the Land in this case for ever for the disseisee against his owne Fine may not claime the Lands and the counsee may not enter for the right which the conusor had may not be transferred to him but by the Fine the right is extinct whereof the disseisor may take advantage Beckwithes Case 27. Eliz. fo 56. IF the husband and the wife levie a fine of Lands whereof they are seised in right of the wife and the husband solely declare the use of the fine this declaration shall binde the wife if her disascent doe not appeare although her assent to the limitation of the uses doe not appeare for it shall be intended if the contrary doe not appeare that she joyned with him also in the declaration of the uses of the fine But if the husband declare one use and the wife another use they are both voyd the declaration of the use insues the ownership of the land for the one viz. the wife is not sui juris sed sub potestate viri and hath the estate of the Land and the husband is sui juris and hath not the estate and if a
had and after B. and A. levie a Fine to Perkins and he renders a rent of 42. pounds to B. and the Mannor with the Advowson to A. A. dyes without granting the Advowson and B. did not request it B. enters for condition broken and by Indenture inrolled bargained c. to the Lord Cromwell by which he entered and upon the reentry of the Sonne and heire of A. brought an Assise In this Case is shewed when this word proviso or provided maketh a condition and when not which upon long debate was judged by all the Justices of England It was adjudged that the Law hath not appointed any place in a deed or instrument proper or particular to a condition but in what place it pleaseth the parties and this word proviso or provided is as apt a word to make an estate conditionall as Sub conditione or any other word of condition but notwithstanding when this word proviso maketh an Estate or interest conditionall three things are to be observed First that the proviso doe not depend upon another sentence nor participate thereof but stand originally of it selfe Secondly that the proviso be the word of the bargainor Feoffor Donor Lessor c. Thirdly that it be compulsory to enforce the barganee Feoffee Donee Lessee c. to doe an act and where these concurre it was resolved that it was a condition in what place soever it be placed for Cujus est dare ejus est disponere And although words of Covenant be contained in the same clause of the proviso it selfe yet the proviso being in judgement of Law a word of condition it shall not loose his force and so it hath beene judged In Symson et Titterell 26. El. Serjeant Bendlowes demysed to Titterell certaine Lands in Essex for forty yeares provided alwayes and it is Covenanted and agreed betweene the said Parties That the Lessee c. should not alien and this was adjudged a condition by force of the proviso and a Covenant also by force of th' other words Also it was adjudged in Banco Regis 36. El. betweene the Earle of Pembrooke Plaintiffe and Sir Henry Barkely Defendant The Earle granted the Office of the Lievtenant-ship of the West part of the Forrest of Fronslewood in Com. Somerset to Sir Mawrice Barkely Father of the said Sir Henry in Taile provided alwayes and the said Sir Mawrice Barkeley for him c. doth Covenant to and with the said Earle that neyther he the said Earle nor any of his Heires Males c. shall cut downe any Wood growing upon any part of the premises And it was resolved by all the Justices of England upon argument before them at Serjants Inne that although the proviso was coupled with the expresse Covenant of the Grantee and every condition ought to be created by the words of the Grantor Donor Feoffor c. yet in judgement of Law this word provided was a condition created by the Grantor although all the residue of the sentence be the words of the Grantee for proviso being an apt word of a condition the same sentence containeth the words of the Grantor purporting a condition and the words of the Grantee comprehending a Covenant This word proviso when it dependeth upon another sentence or hath reference to another part of the deed doth not make a condition but a qualification or limitation of the sentence or part of the deed to which it is referred As in a Lease without impeachment of wast provided that he shall not doe voluntary wast grant of a Rent charge provided that the Grantee shall not charge the Grantor c. Resolved that B. shall have the Rent notwithstanding that before the Reddendum the use in Fee was vested by the recovery in A. and notwithstanding 't was objected that the Rent ought to be limitted out of the Estate of the Recoverors for 27 H. 8. hath an expresse clause Where diverse be seised to the intent that one shall have an annuall Rent the same person be adjudged in possession and seisin of the same rent as if a sufficient grant had beene made and so here the intent being that B. should have the Rent construction shall be made Vt res magis valeat quam pereat Resolved that the fine leavyed by B. and A. to P. hath not extinct the condition and this was the great doubt of the Case 1. Because by the generall Covenant 't is declared that all assurances afterwards to be made should be to the uses and intents in the same Indenture and to no other and the Indenture intends that the condition should be saved as the Lord releases all his right in the Land saving his Rent Putnams Case 4. 5. P. and M. Dyer Feoffement of a Mannor rendring Rent and a reentry and a Covenant by any Indenture to Leavy a fine which should be to the uses and intents of the first Indenture and to no other use which was leavyed according with the usuall words of release of all his right yet resolved that neither the Rent nor the condition was destroyed and 23. of the Queene Tussers Case a rent reserved by a fine before was not destroyed by a common recovery and generall entry into warranty and 34. of the Queene in Clever and Childs Case adjudged according to Putnams Case for the same reason t was adjudged in this Case 14. of the Queene for the Advouson of Alexton for Modus et conventio vincunt legem and Covenant and agreement of the parties hath power First to raise a use Secondly to declare uses upon fines recoveries c. Thirdly for to preserve Rents and conditions and for to direct recoveries fines c. and the saving may be contained in another deed delivered at the same time And these common assurances as fines and recoveries are to be construed according to the intent and common usage without prying into them with Eagles eyes Also here the Bargaine c. recovery c fine c. though made at severall times yet all by mutuall agreement are but one assurance and tend for to perfect a bargaine c. and therefore the one shall not destroy the other resolved that except in speciall cases a fine Sur grant render cannot be averred by word to another use then is in the fine feoffement c. yet in some cases it may be ruled in part by averrement by word when the originall contract is by deed but a man may by word averre another consideration which stands with the consideration expressed but not against it Reade the Booke at large for this purpose Resolved that by the death of A. the condition was broken for when the Feoffee or Grantee is to doe an act to the Feoffor c. upon condition and no time is limitted regularly the Feoffee may doe it at any time during his life If the Feoffor or Grantor doe not hasten the same by request and upon request and day or time limitted the Feoffee or Grantee ought to doe it
the Mannor ex speciali gratia c. and all her right estate title claime c. Resolved that the Record was well removed by the Writt of Error which was for to remove the recovery of the Mannor of M. in M. cum pertinentiis and the Recovery was of the Mannor of M. cum pertinentiis Resolved that this Writt of Error was not given to the King by any of the words of the Statute of 28. H. 8. because the terrtenant is in by title and the entry of the person attainted taken away and such a right for which the party hath no remedy but by action is a thing consists in privity which cannot Escheate nor be forfeited by the common law and this word right in the Act shall be satisfied with a right of entry and 't was observed by the Court that by no Act of attainder a right of action was ever given Note a diversitie betwixt inheritances and chattells for Obligations Statutes Recognisances c. are forfeited by attainder or Outlawry By the Court if L. had made a Feoffement without warranty this had been a discontinuance of the moity for the joynture was severed Resolved that H. N. had no right to a moity of the Mannor for though the recovery were erronious for 't was agreed 't was not void yet the recovery being in force the remainder hath no right for the intended recompence if tenant in taile suffers an erronious recovery and disseise the recoveror and dye his issue shall not be remitted for the taile is barred as long as the recovery stands in force and the Court agreed that neither an action without a right with a discent shall make a Remitter as in the principall case nor a right without an action for a man shall never be remitted but when an action lyes if the right and possession were in severall persons Resolved for the one moity the Recovery shall be a barre to the taile and remainder for though that as well L. as the vouchee might have abated the Writt because Anne was joyntly seised not named yet when the vouchee without demanding any Line enters generally into warranty and admits the Writt good and L. recovers in value which shall inure according to his estate with the remainder over 't is barred for by the recovery against L. the joynture was severed but for the other moity the recovery was not a barre to the taile or remainder because for that L. was not tenant to the Praecipe but the recovery is by Estoppell onely Agreed that H. N. at the time of the attainder was not intitled to have error yet 't was agreed that the remainder upon a taile shall have error upon a judgement given against tenant in taile for when W. 2. inables the donor for to limit a remainder over upon the taile all actions which the common Law gave to privies in estate are by the same Act as incident given also as a reversion or a remainder shall have Error upon a judgement given against tenant for life though not privie by aide voucher or receiver But agreed that by the common Law Error doth not lye by c during the life of tenant for life except he were privy to the first Record by aide voucher or receiver for remedy whereof 9. R. 2. ca ' 3. was made which gives an attaint or error during life upon which Statute the Court resolved 1. that though the Statute speakes onely of reversions yet remainders are within the purview 2. That a reversion expectant upon a taile is out for the Statute enumerates these foure estates Life Dowor Courtesie and Tenant in taile after possibility which declares their intentions to exclude reversions upon tailes and this upon great reason for the taile by possibility may continue for ever and here L. survived H. N. and so his possibility of error destroyed and no word of the Act extends to give a possibility Resolved admitting the Writ of Error had been given to the Queene that by this generall grant of the Queene it did not passe for a common person cannot grant it and therefore it ought to passe by Prerogative and ought to have precise words adjudged in Cromers case 8. of the Queene the Queene having a right of a disseisee attainted grants de speciali gratia c. all lands c. The right doth not passe without speciall recitall and words Owen and Morgans case Trin. 27. of the Queene Baron and Feme are seised and to the heires of the body of the husband a recovery is had against the Baron sole without naming of the wife and after the wife dyed Resolved that though the wife were not party to the Writ nor the Conisance for the estate of the husband and wife was by render upon a Fine levied by the husband and though it does appeare within the same Record that she was a stranger yet the render to her is voidable onely Resolved that this recovery against the husband onely shall not binde the remainder for betwixt husband and wife there are no moities and the husband hath no power to sever the joynture or dispose any part and he during the life of the wife is not seised by force of the taile and he can by no Act execute any part so the Praecipe being brought against him onely the recompence cannot enure to the taile or remainder for to all it cannot for the wife hath a joynt estate in possession and for a moity it cannot for there are no moities and the remainder depends upon the entire estate and recompence recovered by the husband onely cannot inure to him who hath a remainder depending upon the undevided estate of the husband and wife and the joyn-tenancy cannot be severed by the judgement against the husband onely and though the husband hath all the inheritance yet because by no possibility it can be executed 't is all one as if the husband had a remainder depending upon an estate for life and then a common recovery shall not binde because not tenant to the Praecipe nor seised by force of the taile but tooke effect by Estoppell onely The issue may say his auncestor was not tenant tempore brevis and though here the husband survived the wife this is not materiall for the Law adjudges as 't was then Copledikes Case 44. of the Queene fo 5. C. And his wife were seised and to the heires males of the body of the husband the husband levies a Fine to A. B. recovers in a Writ of entry against A. who vouches the husband onely the wife living who vouches the common vouchee Resolved that this recovery shall binde the remainder for here was a lawfull tenant to the Praecipe and though the husband were onely vouched and not his wife who had a joynt estate with him yet the husband coming in as vouchee he came in in privity of the estate taile and not of another estate and the recovery in value gives recompence to the taile which
the hands of the Feoffee shall not barre the Lord of reliefe due after for that is no service if it were Debt would not lye for it 'T was said if the Lord accepts services by the hands of the Heire infeoffed within age by collusion he loses the wardship But against this 't was objected First because the Lord upon tender of the arrerages and notice is compellable to avow upon him Secondly he cannot be concluded before title accrued Answered the Lord is not compellable c. for he may shew the collusion and avow upon the Feoffor and by acceptance the Lord waives the benefit of the Statute purges the collusion and loses the wardship Westbyes Case 40. Eliz. In Banco Regis Fol. 71. WEstby brought an action of Debt against Skynner and Catcher Sheriffes of London for an escape One Buston was in execution and in their custody at the Suite of one Dighton and at the Plaintiffes Suite and at the end of their yeare the Sheriffs deliver'd the body of Buston amongst others unto the new Sheriffes by Indenture wherein the execution at the Suite of Dighton was mentioned but the execution at the Suite of Westby was omitted and Buston still continued in the Gaole and if the Defendants should be charged in this Case with the escape was the Question And it was adjudged that they should be charg'd for although he was within the walls of the Prison yet that was an escape in Law as to the Plaintiffe And it was resolved that Eo instanti that the ancient Sheriffes delivered their Prisoners to the new Sheriffes the escape began as to the Plaintiffe Note hereby that the Law judgeth one that remaines in the Gaole to have escaped and it was resolved that the ancient Sheriffes ought to give notice to the new Sheriffes of all executions that they have against any that are in their custody and it was also resolved untill the Prisoners be delivered to the new Sheriffes they remaine in the custody of the old Sheriffes Notwithstanding the new Letters Patents the Writ of discharge and the Writ of delivery And 't was resolved that if the old Sheriffe die before a new one be made the new Sheriff at his owne perill ought to take notice of all executions against any of the Prisoners and this is for necessity and if one in Execution breake the Gaole betweene the death of the old Sheriff and the making of the new this is no escape but when the Sheriff is dead all the Prisoners are in the custody of the Law untill the new Sheriff be made and although no fresh Suite be made after they may be taken in Execution in what place soever they come in Deane and Chapter of Norwich Case 40. and 41. of the Queene fo 73. H. 8. Anno. 30. translated the Priory and Covent of the Cathedrall Church of the holy Trinity of Norwich into the Deane and Chapter c. and discharged them by their speciall names Tam de habitu quam de regula ipsosque decanum Capitulum perpetuis temporibus duraturis corporavit and granted them all the Mannors c. which of late belonged to the Priory and granted that they should be the Deane and Chapter of the Bishop of Norwich and his Successors after 2. E. 6 the Deane and Chapter surrendered to the King their Church and possessions and he incorporated them by the name of the Deane and Chapter Sanctae individuae Trinitatis Norw ' ex fundatione E. 6. And regranted them their Church and Possessions by the name of the Deane c. omitting Ex fundatione Regis E. 6. Objected that Herbert heretofore Bishop of Norwich was Founder and being not party to the translation 't is voyd Answered the King was Founder as appeares by many Records and by the Foundation but admit the Bishop Founder yet the translation was good for the Pope might have discharged a Monke of his profession and therefore the King may doe it by the Statute of 25. H. 8. And this translation is no prejudice to the Founder for he remaines Founder and nothing is altered but the rule and profession and rhis Prior was eligible 11. of the Queene Dyer Corbets case proves this very translation good and by judgement of Parliament 33. H. 8. such translations are good All Chapters were Monkes and notwithstanding their translation into Prebends or Cannons the Advowson remaines as before But admit the translation voyd yet 't is good by the Statute of 35. of the Queene see the Booke at large Objected when they surrendered to E. 6. and he regranted to them by the mis-naming of the Corporation for ex fundatione Regis E. 6. was omitted the grant was voyd and nothing passed for the name of the Founder is parcell of the Corporation Answered notwithstanding the surrender of their Church their Corporation continues and they remaine the Chapter of the Bishop though there cannot be a Gardian of a Chappell when the Chappell and all the possessions are aliened In Christian policy 't was thought necessary for that the Church could not be without Sects and Heresies that every Bishop should be assisted with a Counsell viz. a Deane and Chapter 1. To consult with them in deciding of difficult Controversies of Religion to which purpose every Bishop habet Cathedram 2. To consent to every grant the Bishop shall make to binde his successors for the Law did not judge it reasonable to repose such confidence in him alone at first all the possessions were to the Bishop after a certaine portion was assigned to the Chapter therefore the Chapter was before they had any possessions and of common right the Bishop is Patron of all the Prebends because their possessions were derived from him so that so long as the Bishopricke continues the Deane and Chapter being his Counsell remaines though they have no possessions as at first they were when the Bishopricke consisted all of spiritualty The Prior and Friers Carmilites had not any possessions nor place And 32. H. 8. Fitz. held if an Abbot or Prior and covent sell their possessions yet their Corporation remains All Bishopricks were of the Foundation of the Kings of England and anciently Donative by them but by grants of the Kings became after Eligible by their Chapter wherefore if by their surrender their Corporation should be dissolved three inconveniences would follow First to the Bishop for his assistance in the Episcopall function Secondly to the Bishop and others touching the confirmation of Grants Thirdly to all the Church for how should the Bishop be chosen Resolved First if there were any imperfection in the Translation the Statute of 35. of the Queene hath made it good Secondly that the Act of 1. E. 6. hath made it good though the Corporation were gone by the surrender and the misnamer materiall Holden by the Justices and Lord Keeper that the ancient corporation remaines notwithstanding the surrender Fermors Case 44. of the Queene fo 77. SMith Lessee for yeares of a
Lord doth not grant tacitly any customary Court Clifton and Molineux case 27. 28. of the Queene fo 27. REsolved if a Steward hold Court out of the Manner all grants and admittances there made are voyd for the Court ought to be holden within the Mannor not out of the jurisdiction of it as Melwich case is before but resolved that by custome the Court may be holden out of the Mannor and grants c. shall be good as Abbots c. used for to hold Courts at one Mannor for divers severall Mannors Resolved that if a woman Copiholder for life takes husband who commits wast and dyes the Copihold is forfeited otherwise if a stranger does wast without the assent of the husband Taverner and Cromwells Case 26 of the Queene fo 27. REsolved if a copiholder seised of three severall copiholds of three severall acres makes wast in part of one c. all that is forfeited but not the others for though they are all in one hand yet every one is severally holden and a severall condition in Law annexed and the severall conditions follow the severall tenures So resolved if the coppyholder surrender them to the use of A. and the Lord admits A. Tenendum per antiqua servitia inde prius debita dejure consueta and A. makes a forfeiture in one he shall forfeite that onely for the Tenendum red dendo singula singulis continues the severall tenures so that 't is not materiall if the copiholds are in one or severall copies So if diverse severall copiholds escheate to the Lord he grants them Tenendum per antiqua servitia they shall be severally holden as they were before though he grants them to one man Resolved that when he to whose use a surrender is made is admitted he is in by him that surrendered and in a plaint in the nature of an entry in the Per shall be supposed in by him for the Lord is but an instrument to make the admittance and his charge shall not binde him that is admitted So Reader where before 't is said that by the forfeiture of the Husband all the estate of the Wife shall be forfeited 't is to be intended all the copihold under the same tenures Hubbard and Hamonds Case 42. and 43. of the Queene fo 27. REsolved that if the fines of copiholders upon admittances be incertaine the Lord cannot exact excessive and unreasonable fines if he does the copiholder may deny to pay it without forfeiture and it shall be determined before the Judges upon a Demurrer or evidence upon proofe of the value of the Land what fine was reasonable to be demanded for if it should be otherwise great part of the Copy-holds should be destroyed at the will of the Lord and so was Hodesons Case adjudged Resolved if the Lord assesse a reasonable fine and require the Copy-holder to pay it he is not bound to pay it presently because he could not know what the Lord would assesse nemo tenetur divinare and he shall have a convenient time to pay it if the Lord limits no time otherwise of a fine certaine Resolved if a Copy-holder hath severall Copy-holds by severall services the Lord ought to assesse and demand fines severally for every parcell and the tenant may refuse to pay his fiine for one and forfeit that onely and every severall tenure hath severall conditions in law tacitely annexed to it So if all the severall Copy-holds are surrendered to the use of another and the Lord admits him Tenendum per antiqua servitia c. the tenures are severall and fines severall Taverners ca ' before Resolved that no fine is due to the Lord till admittance for admittance is the cause of the fine and if after the tenant deny to pay it 't is a forfeiture Bacon and Flatmans Case and Sands Case so resolved Westwick and Wyers Case 43. of the Queene fo 28. A Woman Copy-holder in Fee surrenders to the use of W. her Sonne in fee and at the next Court the entry was Ad hanc curiam venit W. and I uxor ejus ceperunt c. W. dyed I. his Wife survived and surrendered to the use of I. S. in fee. Resolved when the Lord hath the Copy-hold by surrender to the use of another he hath but a customary power to make admitance Secundum formam effectum sursum redditionis and 't is not like to the Feoffee at common Law and though the Lord grant this by Copy to another 't is without warrant and notwithstanding he might make an admittance according to the surrender and he which is admitted shall be in by him that surrendered as Taverners Case is before and the Court agreed if the Lord grant to Cestuy que use and a stranger all shall inure to Cestuy que use or if he admits him upon condition the condition is voyd As Executors agree that the legatory and I. S. shall have c. or that the legatory shall have upon condition the legatory shall have onely and absolutely for after the assent of the Executors he is in by the Devisee And 't was said that 't was adjudg'd in Buntings Case that where the Lord admits one to hold to him and his Heires where the surrender was for life onely that he hath but for life Resolved that without speciall custome or other speciall matter the admittance shall inure onely to the Husband and judgement was given according Buntang and Lepingwells Case 27. and 28. of the Queene fo 29. REsolved that though T. who was Husband of the Wife De facto was not party to the Libell for I. S. Libelled against the Wife without naming her Husband for a divorse upon a precontract betwixt him and the Wife nor the sentence in the Spirituall Court which dissolved the Marriage betwixt him and his Wife yet the sentence against the Wife onely being but declaratory shall binde the Husband De facto and for that the conusance of the right of Marriages belongs to the spirituall Court and they have given sentence in it the Judges of the common Law though it be against the reason of the Law shall give faith and credence to their proceedings and sentences as consonant to the Law of holy Church for Cuilibet in sua arte perito est credendum So 't was adjudg'd that the Plaintiffe borne in the second Marriage was legitimate Resolved when a Copyholder surrenders to the Lord to the use of his Wife and his younger Sonne without limitting any estate they have for life onely for as well estates as discents shall be directed by the rules of Law as necessary consequents upon the custome except there be a speciall custome within the Mannor that Sibi suis or Sibi assignatis may create an estate of inheritance And 't was observ'd that the Estates limitted upon surrenders are always annexed to the estates of him to whom the surrender is made and alwayes the surrender to the Lord is generall without
limitation of any estate Resolved that when the Lord admits Cestuy que use for life the reversion is in him that surrendered not in the Lord for he is but an instrument Resolved that a man may surrender to the use of his Wife though that Cestuy que use is in by him that surrendered because the Husband did not doe this immediatly to the Wife but by a second meanes Viz. By surrender to the Lord and by admittance of the Lord. Resolved that when B. surrendered out of Court and before that 't was presented in Court he dyes yet after being presented according to the custome 't is good otherwise if it had not beene presented according to custome so if the Tenants in whose hands c. dyes yet if it be proved 't is good enough so Queintons Case before if Cestuy que use c. dyes before admittance his Heires shall be admitted Downe and Hopkins Case 36. of the Queene fo 29. REsolved that where the custome of a Mannor was to grant Coppies for one two or three lives that a grant to a Woman during her viduity is within the custome for 't is an estate for life but every grant for life is not Durante viduitate issue was whether the custome was that the Wife of a Copy-holder after the death of the Husband should have for life and 't was given in evidence that she should have during her viduity and adjudged that the evidence did not maintaine such custome for 't is a lesse estate then for life But in the principall Case 't is a greater estate which is warranted by the custome and therefore a lesse is within it according to Graveners Case before 'T was said that a Lord may retaine a Steward by word to hold Courts c. as a Bayliffe and this retainer shall serve till he be discharged Harris and Jayes Case 41. of the Queene fo 30. REsolved that a Lord may retaine one to be Steward of his Mannor and to hold Courts by word as in the Case before Resolved that where a Copy-hold escheates by attainder of felony of a Copy-holder of the Queene that the Steward may grant it over Ex officio without speciall warrant for the custome warrants the Steward to grant it and this shall binde the Queene and her Heires c. But yet his duty is before to informe the Lord Treasurer Chancellor or Barons of the Exchequer or any of them for his better direction Resolved that the Auditor or Receiver of the Queene hath no power to retaine a Steward to hold courts c. But it behooves that the Steward who makes such voluntary grants upon escheats or forfeitures to be good to have Letters Pattents of the Stewardship of the same Mannor And 't was said that 't was adjudged in the Lady Holcrofts Case that where one was retained generally by word to be Steward of a Mannor and to hold Courts that he may take surrenders of customary tenants out of Court Shaw and Thompsons Case 33. of the Queene fo 30. REsolved that a Woman shall not be indowed of Copy-hold without speciall custome and that when a Woman is to be indowed by custome she shall have all incidents to Dower and shall recover damages by the Statute of Merton because her Husband dyed seised and therefore the recovery of damage of 50. l. in the Court of the Mannor was allowed though this exceeded 40 s Resolved that no Action of Debt lyes for these damages at common Law for upon such judgement no error or false judgement lyes but the remedy is in the Court of the Mannor or Chancery Fenner Justice said That he had seene a Record 36. H. 8. where the Lord by Petition to him had for certaine errors in the proceeding reversed such a judgement and upon this the Defendant maintained an Audita quaerela to be restored to the damages recovered against him See 14. H. 4. cited before in Brownes Case And 7. E 4. 29. Hoe and Taylors Case 37. of the Queene fo 30. REsolved that Underwood growing upon parcell of the Mannor may by custome be granted by Copy of Court roll and 't is a thing of perpetuity to which a custome may extend for after every cutting the underwood growes Ex stipitibus So 't was resolved that Herbage or any profit of any parcell of the Mannor may by custome be granted by Copy and 't was said that a faire appendant to the Mannor of C. in S. is granted by Copy and this explaines the reason of the first pillar in Murrels Case Frenches Case 18. 19. of the Queene fo 31. REsolved if the Lord Lease for yeares life or make any other estate by deed or without deed of Copy-hold Land forfeited escheated c. to him that this Land can never be granted againe by Copy for the custome is destroyed for during these estates the Land was not demised nor demisable by Coppy So if the Lord make a feoffement and enter for condition broken but if the Lord keepe it in his hands a long time or leases it at will he his heires or assignes may regrant it So if the interruption be tortious as by disseisin and discent false verdict or erroneous judgement for Non valet impedimentum quod de jure non sortitur effectum quod contra legem fit pro infecto habetur But if it be extended upon a Statute or recognizance acknowledged by the Lord or if the Wife of the Lord hath this Land assigned to her in Dower though these impediments are by act in Law yet for that the interruptions are lawfull the Land cannot be after granted by Copy If a Copy-holder accept a Lease for yeares of the Lord of his Copy-hold 't is destroyed for ever If a Copy-holder take a Lease for yeares of the Mannor his Copy-hold hath not continuance Hides Case adjudged 17. of the Queene But there 't was resolved that such Lessee might regrant the Copy to whom he would for the Land was alwayes demised or demisable If a Coppy-hold be surrendered to the Lessee his Executors or assignes may regrant it If a Copy-hold escheate to the Lord his alienee by fine feoffement c. may regrant it Foiston and Crachroodes Case 29. and 30 of the Queene fo 31. ADjudged that where a Copy-holder in pleading alledges Quod infra Man praed talis habetur nec non a toto tempore cujus c. habebatur consuetudo Viz. quod quilibet tenentes praedictorum tenement vocat C. have used to have common in such a place parcell of the Mannor and that he is a Copy-holder of the said Tenement that this custome as well for the matter as the forme was good for the Copy-holder cannot prescribe in his owne name for the exility and basenes of his estate and if he had claimed common in the soile of another he ought to prescribe in the name of the Lord Viz. That the Lord and all his ancestors and all those whose estate c. have
judgement and this error assigned for that R. the plaintiffe was an Infant and was admitted by his Gardian and no Record made of it as 't is used in Banco but onely recited in the Count J. R. per A. B. gardianum suum ad hoc per curiam specialiter admissum queritur Which was disallowed by all the Justices upon search and view of many presidents which make a Law in this Court yet some presidents were as in Banco Note Reader according to the opinion of Wray 't was resolved in Londons case that if a man takes a lease by Indenture of his own land this is an Estoppell but during the terme and then both parts of the Indenture belong to the lessor Wardens and Commonalty of Sadlers case 30. of the Queene fo 54. BY Mandamus 't was found before B. Mâ—yor of London Escheator of the City and thâ— inquisition was returned in Chancery that T. C. held of the King c. and dyed seised without heire the Wardens c. shewed their right that R. M. was seised in fee and devised to them in fee and that they were seised till by C. disseised and shew the custome of London that a Citizen and Freeman may devise in Mortmaine and averred that R. M. was c. Tempore mortis and upon this great question was whither a Monstrans de droit lyes or it ought to be by Petition See the Case at large for this Learning Bereblock and Redes Case was cited to be adjudg'd if A. be bound in a recognizance Statute c. and after a recovery in Debt is had against him and he dyes his Executors ought first to pay the Debt upon the Recovery though it be puny to the Statute c. for though both be Records yet the judgement in the Court upon judiciall and ordinary proceeding is more notorious and conspicuous and of more high and eminent degree then a Statute c. taken in private by the consent of Parties Forse and Hemblings Case 37. Eliz. in com Banc fo 60. ALice Allen seised of certaine Messuages in Fee maketh her will in Writing and thereby demiseth that if James Amynd doth survive her that then she doth demise and bequeatheth the same messuage to him and his Heires And afterwards the said Alice did Intermarry with the said James and during her coverture she said often the said James should never have the said Messuage by her said Will Alice dyed without issue and James survived and the Question was whither the Will was countermanded by the said Marriage or not and if not whither by the words of revocation after the Marriage was a Countermand and it was adjudged upon great deliberation that the taking of a Husband and the coverture at the time of her death was a countermand of the Will For the making of a Will is but an inception thereof and it doth not take any effect untill the death of the Devisor For Omne testamentum morte consummatum est voluntas est ambulatoria usque extremum vitae exitum And it should be against the nature of a Will to be so absolute that he that made the same being of sane memory may not countermand the same And therefore the taking of her Husband being her owne proper act doth amount to a countermand in Law Also 't was said that after Marriage all the will of the Wife in judgement of Law is subject to the will of her Husband and a Feme Covert hath no Will and therefore the Countermand after Marriage was of no force Quod fuit concessum per tot Cur. Harlakendens Case 31. El. In banco regis fo 62. THe Earle of Oxford leased to A. B. and C. except the Trees for 21. yeares C. assigned to D. the Earle sells the Trees to A. B. and D. they leased to E. and after sell the Trees the Vendee cuts them the Lessee brings Trespasse When a man maketh a Lease for life or yeares the Lessee hath but onely a speciall interest or property in the Trees being Timber as things annexed to the Land but if the Lessee or another severs them the property and interest of the Lessee is determined and the Lessor may take them as things which were parcell of his Inheritance It was also resolved that this clause without impeachment of wast doth not give to the Tenant for life any greater interest in the Trees then he had by the demise of the Land but onely that it will serve that he shall not be impeached in any action of Wast or to recover damages or the place wasted * This is adjudged otherwise by all the Judges of England in Lewes Bowles Case in the 11. Report It was also resolved that if an House fall by tempest or other act of God the Lessee for life or yeares hath a speciall interest to take Timber to reedifie the same if he will But if the Lessee suffer the House to fall or take it downe the Lessor may take his Timber as parcell of his Inheritance and the interest of the Lessee is determined and he may have wast and treble damages Resolved that the Lessee by the grant had an absolute property in the Trees so that by the Lease of the Land they did not passe and he hath not equall ownership in both and it should be a prejudice to him if they should be joyned to the Land for then he could not cut during the terme without wast and after he shall not have them and the Lessor shall not have them against his owne act And here A. B. and D. were Tenants in common of the Land and joyntenants of the Trees and so their interest of severall qualities and therefore cannot be a union betwixt them but upon a feoffement if the Feoffor accept the Trees they are in property divided though In facto they remaine annexed to the Land for it is not felony to cut them c. and if the Feoffor grants them to the Feoffee they are reunited in property as well as De facto and the Heire shall have them not the Executors for the feoffee hath an absolute ownership in both and it is more benefit to him that they are reunited It was resolved That if Tymber Trees be blowne downe with the winde the Lessor shall have them for they are parcell of his inheritance and not the Tenants for life or yeares but if they be Dotards without any Timber in them the Tenant shall have them It was adjudged that wast may be committed in glasse in the Windowes for it is parcell of the house and discends as parcell of the inheritance to the Heire and the Executors shall not have them although the Lessee put the glasse in the Windowes at his owne cost and if he take them away he shall be punished in wast And 42. Eliz. in com Banco It was resolved that Wainscote whither it be annexed to the house by the Lessor or the Lessee is parcell of the House and there
construed shall or might be leavyed and so 't was holden of a Lease or limittation of a use otherwise he which is to leavy the Summe by deferring to doe it may exclude the reversioner for ever see the Booke at large Resolved when the heire or reversioner c. enters and expulses him to whom the Land is limitted he hath election to recover the Mesne profits in an action or reentry and retainer till he leavyes the inteir Summe and the other shall not have advantage of his owne wrong and if a stranger had entered and occupied the Devisee ought to have taken notice at his perill for Vigilantibus non c. and none is bound to give notice but here the Heire himselfe concealed the will and the Devisee had no remedy for the Mesne profits after the death of the heire Resolved that a Gardian shall not ouste Tenant for life nor yeares of the Tenement Resolved that admitting the Gardian shall ouste Tenant for yeares yet he shall not hold over because his terme is certaine in the commencement continuance and end otherwise of Tenant by Elegit Statute c. they shall hold over because the terme is uncertaine Southcots Case 43. Eliz. in banco regis fo 83. IF A. doe deliver goods to B. for to keepe the goods be purloyned away yet B. shall be charged in a Writ of detinue For to keepe and to keepe safely is all one but if B. doe take them to keepe as his owne goods he shall not be charged with them And if A. doe pledge or Guage goods unto B. in this Case B. shall not answer for them if they be purloyned for he had some property in them and not a custody onely but a ferryman a common Inkeeper or a Carrier which taketh hyre they ought to keepe the goods safely and they shall not be discharged if they be stollen or purloyned But a Factor or a Servant although he have wages doing his indeavour shall not be charged Luttreles Case 43. Eliz. in banco regis fo 86. IF a man have estovers eyther by grant or prescription to his house although he alter the Rooms and Chambers in his House it seemeth that the alteration of the qualities so as it be not of the house it selfe and without making new Chimnyes by which no prejudice accrewes to the owners of the Wood is not any destruction of the prescription and though he make new Chimnyes or make a new addition to his old house he shall not loose his prescription thereby but he may imploy or spend any of his new estovers in the Chimnyes or in that part newly added It was also resolved that if a House or Milne doe fal or be taken downe by the act of the owner or by wrong of another yet for that the perdurable part which includes all doth remaine which is the Land whereupon the Fabrick is built he may reedifie the same againe without any Losse of his apendant or apurtenant but it ought to be upon the same place which was the Foundation of the old House for as it did support and in judgement of Law included the ancient house when it was standing so it supports and includes the new house so as it is in a manner a continuance of the ancient house Diverse Tenants doe hold of another as of his Mannor by fealty and suite to the Lords Milne the Lord doth alien his Milne with the suite of his Tenants and after the vendor dyeth and his Sonne entereth and buildeth a new Milne upon the other part of his demeane he shall have the suite to his owne Milne which the Vendee had before for the suite belongeth to him that hath the Mannor for no man may have suite to his milne by reason of a Tenure If it be not of Corne growing upon the Lands within the Seigniory or Mannor and the Lord may erect a new Milne within any part of the Mannor and the Tenure is due to the same and not to any particular Milne Druries Case 43. Eliz. Error in Banco Regis fo 84. A Countesse being a Widdow retaineth three Chaplaines he who is last reteined is not capable of a dispensation for the Statue of 21. H. 8. c. 13. is executed by reteining of two and the reteining of the third shall not devest the capacity which was in the first two but if the reteiner had beene at one time he who is first promoted shall be first preferred because in Aequali jure c. 2. Resolved if the two first die the third is not capable of dispensation without a new reteiner because he was reteined at the common Law and not according to the Statute Quod ab initio non valet c. As if the Sonne and Heire of a Baron reteineth a Chaplaine and giveth him Letters under his Seale and after the Father dyeth And it was said that the said Act shall be taken strictly as if a Baron be made Gardian of the 5. parts he shall reteine no more Chaplains then before and if a Baron retaine two Chaplaines who are promoted he cannot discharge them and reteine others during their lives Slades Case 44. Eliz. fo 92. IT was resolved that every contract executory imports in it selfe an assumpsit For when one doth agree to pay money or to deliver any thing by that he doth assume and promise to pay or to deliver the things and therefore when he selleth any goods to another and agreeth to deliver them at a day to come and the other in consideration thereof agreeth to pay so much money at such a day in this case both parties may have an Action of Debt or Action upon the case upon the assumpsit for the mutuall executory agreement of both parties import in themselves as well a reciprocall Action upon the Case as an action of debt and a recovery or barr in an action of debt is a good Barre in an action upon the Case brought upon the same contract and so likewise in an Action upon the Case a recovery or Barre in the same is a good plea in an Action of Debt upon the same contract The Defendant in an Action of the Case upon the assumpsit may not wage his Law as he may doe in an action of Debt If a Summe of money be promised in Marriage to be paid at severall dayes an Action upon the assumpsit lyeth for non payment of the first although no Action of Debt lyeth untill all the dayes be past Multitudo errantium non parit errori patrocinium and if the Debtor of the King sueth by Quo minus in the Exchequor the defendant shall not have his Law for the benefit of the King Adams and Lamberts Case 44. and 45. Eliz. in banco Regis in Ejectione firmae fo 104. UPon consideration of the Statute of 1 E. 6. cap. 14. it was resolved 1. That if one demise to any of his Kindred to superstitious uses although he limit them to pay certaine Summes of
his consent and after the other two did alien without license and it was adjudged 28. Eliz. that in this case the condition being determined as to one person by the license of the Lessor it was determined in all for when the Lessee alieneth any part of the residue the Lessor may not enter into any part aliened with license and therefore the condition being determined in part is determined in all for the condition being entire may not be apportioned and 16. Eliz. Dyer 334. fuit deny per Popham Chiefe Justice Vide lit 80. b. 4. and 5. Ph. and M. Dyer 152. Bustards Case 1. Jac. fo 121. IN every lawfull exchange of Land this word Excambium imports in it selfe Tacite a condition and a warranty and the other a Voucher and recompence and all in respect of reciprocall consideration the one land being given in exchange for the other but that is a speciall warranty for upon the voucher he shall not recover other Lands in value but those onely which were given in Exchange and this warranty followes onely in privity for none may vouch by force thereof but the parties to the Exchange and their heires and no assignes If A give in Exchange three acres of Land to B. for other three acres and after one Acre is evicted from B. in this Case all the exchange is defeated and B. may enter into all his Lands Beverleys Case de non compos mentis in banco regis 1. Jac. fo 123. EVery act that a man De non compos mentis doth eyther concerning his Lands life or goods eyther done in Court of record or out of Court of record all acts that he doth in any Court of record eyther concerning his Lands or goods shall bind himselfe and all others for ever and those acts which he doth out of Court of record shall binde himselfe during life and in some Cases shall binde all others for ever so as the party himselfe shall not be admitted to stultifie himself or disable himself but an ideot a nativitate may not make Feoffment Gift Lease or Release but it may be avoyded during his Life by office at the Kings suite which shall have relation a tempore Nativitatis to avoyd all acts done by him and after his death the King shall deliver his Lands Rectis Haeredibus foure manner of men de non compos mentis 1. An ideot or foole naturally 2. One which was of good and perfect memory and by the visitation of God hath lost the same 3. Lunaticus qui gaudet lucidis intervallis who somtimes is of good and perfect memory and some other times Non compos mentis 4. He that is so by his owne act as a Drunkard All acts which a Lunatick during the time of his Lunacy doth and all acts which a mad man doth who once was of perfect memory and by the act of God hath lost his understanding are equivalent to the act done by an Ideot but the act which a man doth Qui Gaudet lucidis intervallis at such time as he is of good and perfect memory shall binde him and are good And a Drunkard who for the time of his Drunkenesse is Non compos mentis yet his drunkennesse shall not extenuate his act or offence but doth aggravate his offence and doth not derogate from the act which he doth during the time of his drunkennesse and that as well touching his Life Lands and goods as any other thing that concernes him The King shall have the custody of the Land goods Chattells c. of one non compos mentis to the use of him his Wife Children and Family a man non compos mentis shall not loose his life for felony or murder for no felony or murder can be committed without a felonious intent and purpose and he is deprived of reason understanding and intentions Dicta est fellonia quia fieri debet felleo animo furiosus non intelligit quid agit animo ratione caret non mulum distat a brutis as Bracton saith and stultus dicitur a stupore The End of the Fourth Booke THE FIFTH BOOK Claytons Case 37. Eliz. in Com. Banco fo 1. AN Indenture of demise dated 26. May 25. Eliz. to hold for three yeares from henceforth it was delivered at foure a clock in the afternoone of the twentieth of June after The Question was when the Lease should begin from henceforth shall be taken the day of the delivery inclusive idefi from the making or delivery Traditio loqui facit cartam this Lease must end the nineteenth of June in the third yeare after The day of the delivery is parcell of the tearme but a Die confeccionis or a Die datus the terme beginneth the day after the date from the date and from the day of the date is all one because that in judgement of Law the date includes all the day of the date c. Elmers Case 30. Eliz. Banco Regis fo 2. 1. REsolved that the Statute of 1. El. is a private act whereof the Court shall not take notice without pleading of it 2. Whereas the Bishop ousted his Lessee for yeares and made a Lease for three lives this is voidable by the successor for first the Statute giveth him power to make a Lease for twenty one yeares or three lives and therefore cannot make both 2. Lessee for lives shall have the rent reserved upon the Lease for yeares and shall not pay rent to the Bishop untill the terme determined and so hospitality will decay in the meane time and where 32. H. 8. ca ' 8. provided that the old Lease be surrendered before the making of a new illusory surrender upon condition is not within the act but judgement given against the Plaintiffe for not pleading of the said act of 1. Eliz. Jewells Case 30. Eliz. banco regis fo 3. LEase of a faire reservaing rent is not within the Statute of 1. Eliz. for although the rent be due by reason of the contract yet it is not incident to the reversion and 't is also without remedy by assise or distresse Lord Mountjoyes Case 31. 32. El. banco regis fol. 3. TEnant in tayle according to the Statute with power to make Leases c. reserving the ancient rent maketh a Lease of two distinct farmes reâ—erving the ancient rents in one summe out of both sthe farmes this is a new rent and not the accustomed rent and if he reserve a lesser rent during his life and after his death then the ancient rent the Lease is not good If Tenant in tayle be seised of three acres of Land every one of them of equall annuall value and all have beene demised for 3. shil per annum in this case he may not demise one of them for 12. d. per annum or two of them for 2. shil per annum and so Pro rata Justice Windams Case fo 31. 32. Eliza. Banco Regis in a Writ of Error fo 7
Parliament in the upper House that Leases made to the Queene by Colledges Deans and Chapters or any other having spirituall or Ecclesiasticall Livings against the provision of the Act 13. Eliz. ca ' 10. are restrained by the same Act as well as Leases made to common persons for they are disabled by Parliament to make estates the King being the head of the Common-wealth may not be an Instrument to defeate the provision of an Act of Parliament made Pro bono publico For though the Queene by the common Law had ability to take it yet insomuch the Parliament had dissabled them to make states estates made to the Queene against the Act are voyd Covenants c. Concerning Leases Assurances c. Spencers Case 25. Eliz. fo 16. Banco Regis A Lessee doth Covenant for himselfe his Executors and Administrators with the Lessor that he his Executors or Assignes shall build a Brick Wall upon parcell of the Land demised c. afterwards the Lessee assignes over his tearme to B. in this Case B. is not bound to build the Wall When the Covenant extends to a thing In esse parcell of the demise then the thing to be done by force of the Covenant is Quodammodo annexed and appurtenant to the thing demised and shall run with the Land and binde the Assignee although he be not bound by expresse Covenant But when the Covenant extends to a thing which had not essence at the time of the demise made that cannot be appurtenant or annexed to a thing which had not essence As if a Lessee Covenant to repaire the housses to him demised during the tearme this is parcel of the contract c. and shall bind the Assignee although he be not bound expresly by the Covenant But in this Case the Covenant concernes a thing which had not essence at the time of the demise but to be made after and therefore it shall binde the Covenantor his Executors and administrators and not the assignee for the Law will not annexe the Covenant to a thing which had not essence It was resolved in this Case if the Lessee had Covenanted for him and his assignes c. that in as much as it was to be builded upon the thing demised it should binde the assignee by expresse words Also if a warranty be to one his Heires and assignes by expresse words the assignee shall take benefite thereof and have a Warrantia cartae But although the Covenant be for him and his Assignes yet if the thing to be done be meerly collaterall to the Land demised and doe not concerne the same the Assignee shall not be charged as if the Lessee Covenant for him and his Assignes to build a house upon the Land of the Lessor which is not parcell of the demise or to pay any collaterall Summe of money to the Lessor or to a stranger this shall not binde the Assignee Also in a case of goods as Sheepe Chattell c. there is not any privity or reversion in the Assignee but meerely a thing in action in the personalty which cannot binde any but the Covenantor his Executors or administrators which doe represent him The same Law is if a man demise Lands for yeares with a stock of Cattle or Summe of money rendring rent and the Lessee Covenants for him his Executors Administrators and Assignes to deliver the Stock of Cattle or the Summe of money at the end of the Terme yet the Assignee shall not be charged with the Covenant This word Concessi or Demisi imports a Covenant and if an Assignee of a Lessee be evicted he may have a Writ of Covenant so shall Tenant by Statute or Elegit of a Terme or he to whom the Lease is sould by force of any Execution c. If a man grant to a Lessee for yeares that he shall have so many estovers as shall serve to repaire his House or that he shall burne within his House or such like during the Tearme that is appurtenant to the Land and shall run with the same as a thing appurtenant in whose hands soever the same commeth Assignee of an Assignee Executors of an Assignee ASSIGNES of Executors or Administrators of every Assignee may have Action of Covenant for all are comprised within this word Assignees for the same right that was in the Testator or intestate shall goe to the Executors or administrators It was resolved That the Act of 32. H. 8. c. 24. extendeth onely to Covenants which touch the thing demised and not to collaterall Covenants Slingsbyes Case 29. Eliz. fo 18. Vpon error in the Exchequer Chamber IF any party Covenantor in a Tripertite Indenture breake Covenant all the rest of the parties Covenantees are to maintaine the Action notwithstanding the words of the Covenant are Et ad cum quolibet eoâ—um But if a man demise to A black Acre to B. white acre to C. greene Acre and Covenant with them and every of them in this Case in respect of the severall interest by these words And every of them the Covenant is made severall but if the demise be made to them joyntly then these words in the Covenant And every of them are made voyd A man cannot binde himselfe to three and to every of them to make that joynt or severall at the Election of severall persons for one selfe same cause for the Court will be in doubt for which of them to give judgement It was resolved that an interest cannot be granted joyntly and severally as if a man grant Prox imam advocationem or make a Lease for Terme of yeares of Land to two joyntly and severally these words severally are voyd and they are joyntenants but a power and authority may be joyntly and severally as to make livery or to sell for they have no interest or Action but are as servants to others And judgement was reversed Rosewells Case 35. Eliz. fo 19. BArgainor of Land covenanteth to make to the Bargainee such assurance as his Councell shall advise the Bargainee himselfe cannot devise it although he be Learned in the Law for then it would be no good plea to say Quod consilium non dedit advisamentum Higginbottoms Case 35. Eliz. Banco regis fo 19. A Parson assumeth to I. S. to make him such an estate in a Rectory as the Counsell of the said I. S. shall devise the Counsell shall be given to I. S. and he shall notifie it to the Parson Stiles Case 38. Eliz. Banco regis fo 20. A Charter with the words Haec indentura without a manuall Act of indenting of the paper or parchment is not an Indenture Sir Anthony Maynes Case 38. Eliz. fo 20. Error in Banco regis SIr A. M. Leaseth to S. for twenty one yeares and bindeth himselfe to make a new Lease unto him upon surrender of the old and Leaseth to another for 80. yeares by fine Scott the first Lessee bringeth debt and had judgement If you be bound to enfeoffee one in the Mannor of D. before
part and Sir Gilb. Ger. and others on the same part for the advancement of the Heires Males of the said Earle the Earle did covenant c. to convey the said Mannor amongst others to the said Lord Burgleigh Sir Gilb. Gerrard and others or to any of them before the Feast of the Annunciation of our Lady next ensuing which Assurance should be to the use of the said Earle Edward and the Heires Males of his body and for want of such issue to the use of the Heires Males of Thomas Earle of Rutland with divers remainders over and in the same Indenture the said Earle Edward did Covenant c. to stand seised to the uses contained in the second Indenture No fine or other assurance was leavyed or made by the said Earle Edward before the end of Trinity Tearme Afterwards Viz. 17. Septemb. next following the said Earle Edward acknowledged a note of a fine of the said Mannor of Eikering onely to Sir Gilb. Gerrard and Thomas Ho and the Heires of Sir Gilb. And the 18. day of the said Moneth acknowledged another â—ote of a fine of the said Mannor of Eckering amongst many other Mannors mentioned in the later Indenture to the Lord Burghley Sir Gil. Gerrard and other parties to the later Indenture and both fines were entered in Octabis Mich. next after And it was proved by diverse testimonies that the said Earle Edward as well before the Indentures as after the fine leavyed said that the said Countesse should have the Mannor of Eckering And it was resolved by Popham chiefe Justice and all the Court. First although the Indenture being made for declaring of uses of a subsequent fine recovery or other conveyance to certaine persons and within a certaine time and to certaine uses yet they are but onely directory and doe not binde the estate or inerest of the Land yet if the fine recovery or other assurance be persued according to the Indenture there cannot be any averrment made against the Indentures taken in this Case that after the making of the Indentures and before the assurance by mutuall agreement of the parties was concluded and agreed that the assurance should be to other uses but if other agreement or limitation of uses be made by writing or by other matter of as high or higher nature then the later agreement should stand for every contract or agreement ought to be dissolved by matter of as high nature as the first was Nil tamconveniens est naturali aequitati quam unum quodq dissolui eo ligamine quo ligatum est Also it was very inconvenient that matters in writing should be controuled by averrment of parties to be proved by incertaine testimony of slippery memory and should be perillous to purchasors Farmers c. 2. It was resolved that if the forme of the Indentures be not pursued as for quantity of Land the time within which the fine should be leavyed c. Averrment without writing may be taken that the fine c was to other use then was contained in the Indenture by reason of a new agreement subsequent which in this case may be as well by word as writing 3. It was resolved that although the indentures be not pursued in circumstance of time quantity person c. yet if no other meanes new agreement be proved the fine c. in judgement of Law shall be to the use named in the Indenture The fines cannot be directed by both the Indentures although perhaps it was the meaning of the parties because the directions and declarations of the first Indenturs were controuled and frustrated by the said second Indentures Cases of Executors Russells Case 26. Eliz. fo 27. banco regis A Release by an Infant Executor under the Age of 21. yeares is no bar but upon payment or satisfaction to an Infant Executor he may acquite and discharge the Debt for so much as he receiveth All things that he doth according to the Office and duty of an Executor shall binde him an Executor may release before probate of Testament for although he may not have an Action yet the Interest of the Action is in Law in him at the time of the release Middletons Case 1. Ja. in com banco fo 28. IT was adjudged betweene Middleton and Rymot that an Executor before probate may release action although that before the probate he may not have action for the right of the Action is in him but if A. release and after take administration that shall not barr him for the right of the Action was not in him at the time of the release Two Executors prove the Testament the third refuseth yet he may release Littlet 117. if one be bound to pay a summe of money at a day to come a release of actions before the day is a Bar and yet before the day he could have no action Harrisons Case 40. Eliz. fo 28. com banco IT was adjudged that a judgement upon Debt due by obligation shall be paid before a Statute made for performance of Covenants which are things in contingency and in future or other Statutes or recognizances for Debt vide Sadlers Case in the Fourth Booke although the judgement be after the acknowledgment of the Statute Piggots Case 40. Eliz. com banco fo 29. ONe bringeth Debt as administrator Durante minore aetate of one whhom he averr'd to be within age and he doth not say that he was within the age of 17. yeares and the Plaintiffe was barred because at that age the Administration ceaseth Princes Case 41 42. Eliz. com banco fo 29. AN Infant is made Executor Administration durante minori etate may be committed to the Mother or other Friend of the Infant which shall cease and be voyd when the Infant is at the age of 17. yeares and this administrator may not sell any goods of the Decest unlesse it be for necessity of payment of Debts for he hath his Office of administrator Pro bono commodo Infantis and not for his prejudice also he cannot assent to pay legacies unlesse there be assents to pay Debts c. and if it be a Woman under the age of 17. yeares and take a Husband of full age the Administration ceaseth Where one hath goods solely in an inferior Dioces yet the Metropolitan of that Province pretending that he had Bona notabilia in diverse Diocesses committed the Administration c. this Administration is not voyd but voidable by sentence because the Metropolitan hath Jurisdiction in all places within his Province but if the ordinary of one Diocesse commit the administration of goods when the party hath Bona notabilia in diverse Diocesse this administration is meerly voyd as well for his goods within the Diocesse as without vide Vere Jeffrays Case 22. Eliz. in banck le roy there cited and so adjudged Caulters Cose fo 30. 40. 41. Eliz. banco regis AN Executor in his owne wrong ought not to retaine goods in his owne hands to satisfie
Clergy in an appeale 1. Because it is but to notifie to the Judges that he hath once had his Clergy and that he shall not have it againe by the Statute of 4. H. 7. c. 13. 2. Because it is no part of the judgement and the party shall goe at large although he be not burned by good construction of the Statute of 18. Eliz. c. 7. which provideth that after Clergy allowed and Burning he shall goe at large for otherwise when he is pardoned he shall be imprisoned for ever In the Starre-Chamber the King may Pardon corporall punishment for forgery c. but not if attainted at the common Law in an Action of forgery of false deeds Halls Case 2. Jacobi com banco fo 51. A. C. Libelled for defamation in the Court Christian against H. and had sentence and costs taxed at a day to be paid H. sueth an appeale and obtaines a Pardon from the King and brings a prohibition 1. Resolved all Suites in the Court Christian Pro salute animae or reformatione morum are for the King as suits in the Starr-chamber he may pardon them before or after the Suite comenced but he cannot Pardon where the party sueth for a thing in which he had interest as Tythes 2. All proceedings in the Court Christian Ex officio are for the King and he may pardon them 3. Although the suite may be pardoned yet he cannot pardon the costs which are taxed 4. Although the sentence by the appeale is suspended to many purposes yet untill reversall the party had interest in the costs not pardonable and after a consultation was granted for the costs Pages case 30. Eliz. in the Exchequer fol. 52. I. Demiseth to his wife who is an Alien and before the death of the Testator indenized the date of the Letters Patents is corrupted so that they bore date after his death shee obtaines an exemplification by Commission under the Exchequer Seale it is found that she was an alien and an Information is brought against her and she pleads the exemplification 1. Resol This office is voyde for every office of Intitling as this is ought to be by Commission under the Great Seale but an office of Instruction may be under the Exchequer Seale 2. It appeared not what authority the Commissioners had but Inquisitio capta virtute Cujusdam Commissionis c. 2. That the Exemplification was pleadable by the Statute of 13. Eliz. c. 6. which extends to all Patents whatsoever without any restraint An Exemplification and an Inspeximus as an Innotescimus and a Vidimus are all one A Constat cannot be had without Affidavit and it is when Letters are casually lost An Innotescimus or a Vidimus are alwayes of a Charter of Feoffment or other Instrument not of Record Knights case 31. Eliz. Communi Banco fol. 54. THe Prior of St. John of Je 29. H. 8. Leased divers houses reserving 5. li. 10. s. 11. d. per annum at the foure usuall feasts in L. viz. for one house 3. li. 11. d. and so severally of the others with condition of re-entry for non payment and after surrenders to H. 8. who in Anno 36. grants one house to the lessee and another in fee the lessee dyeth It is found by Inquisition in the Com' of Mid ' by Commission under the Exchequer Seale that 37. s. 5. d. parcell of the said rent was arreare at M. for a quarter of a yeare before the returne of the office or seisure the King grants the residue of the houses to one who leaseth to the Plaintiffe who upon entry of the Executors of the first lessee brings Trespas and the Court being divided it was argued in the Exchequer Chamber by all the Judges 1. Resol This is an intire Lease and the viz. is but a declaration of the severall values of the houses and no severance of the reservation but by apt words divers parcells may be severally leased by one demise and severall rents reserved 2. Admitting them severall rents yet the condition is intire and in case of a common person by severance of any part of the reversion will be extinct 3. This being in case of the King his patentee of part shall not take advantage of the condition but the King himselfe may and the Patentee to whom he grants the residue although the Lease originally made by a Subject 4. Although it be found that more was arreare then was reserved quarterly yet it sufficeth that the office had matter of substance and the Jury in M. may finde which are the usuall feasts in L. 5. The grant after office and before the returne of it is good and by entry without other seisure the Lease is voyde 6. This office under the Exchequer Seale is sufficient to intitle the King to a Chattell Specots case 32. Eliz. Banco Regis in Error fol. 57. S. sa feme bring a Qu impedit against the Bishop of E. and declare that J. A. was seised of a Mannor to which an advowson was appendant and demised it to the feme for life and they presented D. W. who dyed and so it belongs to them to present the defendant pleads that the plaintiffe presented one who is schismaticus inveteratus whereof he gave notice to the plaintiffe It was adjudged for the plaintiffe in the Common place and Error brought thereupon 1. Error Because no presentment alledged in J. A. but over ruled for the presentment of the plaintiffe is sufficient for themselves 2. The Bishop ought not to shew any particular schisme for the Court of the King cannot judge of it but the Bishop is Judge also it is cause to remove a Coroner quia minus Idoneus It was answered that he ought to shew the heresie in certaine and although the Bishop is Judge yet because his Act is not of Record it is traversable and although it belongs not to the Kings Court to judge of Heresies yet the generall cause of suite being in their conusance they shall determine of it by advise of Divines and the cause of removing a Coroner is not traversable 3. The Bishop is twice amerced and a man can be amerced but once towards one man c. It was answered that he was but once amerced for the Judgement in the Kings Bench was but a rehersall of the former yet admitting the second Judgement thereby voyde neverthelesse the first Judgement is good by the Common Law without damages Quod fuit concessum per totam Curiam Fostar 32. El. in Banco le roy fol. 59. IT was resolved that the Constable having a warrant to bring one coram aliquo Justiciar ' c. it is at the election of the Officer to bring the party so attached to what Justice he will For it is greater reason to give the election to the Officer who in presumption of Law is a person indifferent and sworne to execute his Office duly then to the Delinquent Wray chiefe Justice said that a Justice of Peace may make
it was resolved that when one hath a power of revocation yet if he suffer any thing to be lawfully executed as touching that he cannot make any revocation as if a man make a Letter of Attourney to another to doe any thing before Execution he may revoke it but after Execution lawfully done it cannot be revoked if one to whom another is indebted be Outlawed and he that oweth the money payeth it to the King and the Outlary is after reversed yet the Creditor shall recover his Debt against the party if the goods of an Outlawed person be sold by the Sheriffe upon a cap. utlagat ' after the Outlary is reversed by Error the Defendant shall have restitution of his goods for the Sheriffe or Escheator is not compellable to sell the goods but he may keepe them to the use of the King agreeing to the Booke 20. Eliz. Dyer 363. but if a Sheriffe by vertue of a Fieri facias sell the goods and after the judgement be reversed by error the Defendant shall not have restitution of the goods but the value of them for which they were sould And the reason is the Sheriffe is compellable to Levy the Debt of the goods of the Defendant and therefore great reason that the Sale should stand Semaynes case 2. Jac. fo 91. Banco regis THat the House of every man is to him as his Castle and Fortresse as well for his defence against injuries and violence as for his repose that if a man kill another in his defence or permisfortune without any intent yet it is felony and he should loose his goods and Chattells for the great regard that the Law hath to the life of a man But if Theeves come to the House of a man to rob or murther and the owner or his servant kill any of the Theeves in defence of him or his House this is not felony neyther shall he loose any thing any man may assemble his Neighbours or friends to Guard his House against violence but he may not assemble them to goe with him to the Market or abroad to safe-gaurd him against violence and the reason of all this is Domus sua cuique est tutissimum refugium It is resolved that when any House is recovered by any reall Action or by Ejectione firmae the Sheriffe may breake the House and deliver seisin or possession It was also resolved that in all cases where the King is party the Sheriffe may breake the House if the Doores be shut and make Execution of his Writ but before he breake the House he ought to signifie the cause of his comming and make request to have the Doores opened West 1. ca. 17. which Act is but an affirmance of the common Law but if the Officer breake the House when he might have the Doores opened he is a Trespassor 41 Ass pl. 35. For fellony or suspition of fellony the Officer may breake open the Doore in all Cases where the Door is open the Sheriffe may enter and make Execution of his writ either for body or goods at the suite of a subject or the Lord may distraine for his rent But it was resolved that the Sheriffe at the Suite of a common person upon request made to open the Doors and denyall thereof ought not to breake open the Doore or the House to Execute any processe at the Suite of any Subject or to execute a Fieri facias being a Writ of Execution but he is a Trespassor yet if he doe Execution in the House it is good in the Law being done it was also resolved that the house of a man is not a Castle or defence for any other person but for the owner his Family and goods and not to protect another that flyeth into the same or the goods of another for then the Sheriffe upon request and denyall may breake the House and doe Execution And this is proved by the Statute of West 1. ca. 17. whereby is declared that the Sheriffe may breake the House or the Castle to make replevin when the goods of another that he hath destrayned are conveyed away to prevent the owner but in this case the Sheriffe must demand the goods first Barwicks Case 39. Eliz. in Exchequer fo 93. THe Queene 28. Die Julij Anno. 26. demised the Mannor of Sutton to Humfrey Barwicktenend sibi a die confectionis It was resolved that the same 28. day of July is excluded and the demise began the 29. of July It was also resolved that an estate of freehold cannot commence In futuro but ought to take effect presently in possession Reversion or Remainder A Lease for yeares may commence in future but not a Lease for life and the reason is for that a Lease for yeares may be made without livery and seisin but an estate of freehold may not be made without livery eyther in deed or in Law and therefore when a man maketh a Lease for Life to commence at a day to come he cannot make a present Livery to a future estate and therefore in this case nothing passeth and it is all one whither it commenceth at a day to come or yeares to come for the distance of the times doth not make alteration in this Case but in the case of two joynt Lessees the Livery made to one is good in the name of both for they have an interest in the Land before their entry and livery to one in the name of both maketh an actuall possession in both which is sufficient to support the remainder to a third person in Fee Vide Claytons ' Case in the Fifth Booke Lycense to occupy Land for one yeare is a Lease for one yeare 5. H. 7. 1. in consideration of a former demise to be surrendered which was false and void is a void consideration as to the Queene Goodalls case 40. El. Banco Regis fol. 95. COnditions for payment of money touching inheritance ought to be truly performed and not covenous if they concerne a third person The Law doth not finde an assignee in Law where there is an assignee in fact Expressum facit cessare tacitum affirmed in the Exchequer chamber upon Error there brought Countesse of Northumberlands case 40. El. Communi Banco fol. 97. FItton and the Countesse of Northumberland his wife Sir Thomas Cecill Knight and Dorothie his wife William Cornewalleys and Lucy his wife and the Lady Davers Daughters and heires of the Lord Latimer brought a Quare impedit against Hall who pleaded a release of William Cornewalleys pendente breve and it was adjudged that this should but goe in barre onely against William Cornewalleys and his wife and the Writt should stand for others and all shall vest in the others because intire and in the realty presentment of the lessor and lessee is not double for the lessors onely traversable Buries case 40. El. in communi banco fol. 98. BEtween Whebster and Burie in Ejectione firmae a speciall verdict was given upon divorce between Burie and his wife
causa frigiditatis and that his wife for three yeares after the marriage Remansit virgo intacta propter perpetuam impotentiam generationes in viro quod vir fuit inaptus ad generandum and in this speciall verdict all the examinations of the Witnesses upon which the Judge in the spirituall Court was moved to give his sentence by which the perpetuall disabilitie of Bury ad generandum was manifest were reade and by which it was pretended that the issue which he had by a second wife was illegitimate and this was the doubt of the Jury And it was adjudged that the issue of the second wife was lawfull for it is cleare that by the Divorce causa frigiditatis the marriage is dissolved a vinculo matrimonij and by consequence either of them might marry after then admitting that the second marriage was avoydable yet it remained a marriage untill it was dissolved and by consequence the issue that is borne during the coverture if no divorce be in the life of the parties is lawfull Et homo potest esse habilis inhabilis diversis temporibus and Judgement affirmed in Error Flowers case 41. El. Banco Regis fol. 99. AN indictment of perjury upon 5o. El. for giving false evidence to the great Inquest is not within the Statute for it must be in matter depending in suite by Bill Writt action or information vide le Statut. Plus peccat author quam actor Rookes case 40. Eliz. fol. 99. THat the Commissioners in the Cōmission of Sewers ought to tax all which are in damage or in danger of damage for non-repaire of the Bancks and not onely him which hath the Land next adjoyning to the River The Commission is grounded upon the Statute 6. H. 6. cap. 5. for if the Law were otherwise great inconvenience might follow for it might be that the rage and force of the water might be such that the value of the Land adjoyning would not serve to amend the Bancks and therefore the Statute would have all in perill and which take commoditie by the making of the Bancks to be contributory for qui sentit commodum sentire debet onus ipsae leges cupiunt ut jure regantur And notwithstanding by the words of the Commission authoritie is given to the Commissioners to doe according to their discretions yet their proceedings ought to be limitted and bounded with the rule of the Law and reason For discretion is a knowledge or understanding to discerne betweene right and falshood truth and wrong shadowes and substances equity and colourable glosses and pretences and not to doe according to their wills and private affection For a learned Man saith Talis discretio discretionem confundit Penruddocks case 40. Eliz. fol. 100. IN a quod permittat betweene Clarke assignee of Thomas Chichley plaintiffe and Ed Penruddock and Mary his wife defendants assignee of one John Cock for that Cock 2o. 8 bris 1o. Mariae erected upon his freehold a house in St. Johns streete so neere the Curtelage of an house of Thomas Chichley that Domus illa super pendet Anglice doth overhang magnam partem videlicet 3. pedes curtilagij the plaintiffe sic quod aquae pluviales de eadem domo decedentes solum ejusdem curtilagij conterunt magnopere ac indies magis magisque consumunt Devastant ac ea ratione curtilag ' praed quolibet pluviale tempore humectat ' inundat existit quod praedictus Henricus Clarke inhabitans in eodem Messuagio nullum proficuum seu easiamentum de eodem curtilagio percipere possit ad necumentum liberi tenuenti praed ' c. And it was resolved that the distilling of the waters in the time of the Feoffee or assignee is a new wrong and this Writ lyeth after request of amendment but not before but it lyeth against him that did the wrong without request and the action good c. Windsors case 41. Eliz. fol. 102. IN a quare impedit by Windsor against the Archbishop of Canterbury for the Church of Buscott in the County of Bark It was adjudged that if two have title to present by turne and the one present who is admitted instituted and inducted and afterwards is deprived for Crime Heresie c. yet that Patron should not present againe but that shall serve for his turne So likewise if he present a meere Laicus which was admitted instituted and induced although it be declared by sentence that he was incapable and therefore voyd ab initio yet because the Church was full untill the sentence declaratory be pronounced yet that shall serve for his Turne But when the admission and institution are meerely void then that shall not serve for one Turne as if a presentee be once admitted instituted and inducted but hath not subscribed to the Articles c. according to the Statute of 13. El. by which in this case the admission institution and induction are voyde 23. El. Dier pl ' ult ' acc Hungatts case 43. El. Com. Banco fol. 103. HVngatt brought an action of debt upon an Obligation against Mese and Smith the condition was to performe an award between the plaintiffe on the one partie and the defendants on the other Ita quod arbitrium praed fiat deliberetur utrique partium praed before such a day the arbitrament before the day was delivered to the plaintiffe and to Mese but not to Smith Judgement was given against the plaintiffe It was resolved that if two be of one partie and two of another and the words are Ita quod deliber utrique partium That the delivery of the arbitrament to one of the one part and another of the other partie is not sufficient For the partie is to be intended of the whole partie for one is as well within the penaltie and danger of the Obligation as the other and uterque is taken sometime Discretive sometimes Collective Secundum subjectam materiam but here it is taken Collective Bakers case 42. Eliz. fol. 104. IF a plaintiffe in evidence shew any matter in writing or record or any sentence in the Ecclesiasticall Court whereupon Law doth arise and the defendant offer to demurre in Law upon the same the plaintiffe cannot refuse to joyne or wave his evidence and so on the other partie and the reason is for that matter in Law shall not be put in the mouth of Lay-men but the King in this case is at libertie Boulstons case 40. El. in communi Banco fol. 104. IT was adjudged that if a man make Cony-borrowes in his owne Land and the Conies encrease to so great a number that they destroy his Neighbours ground adjoyning The Neighbours may not have an action of the case for presently when the Coneys come into his Neighbours ground hee may kill them because they are ferae naturae And in this case it was resolved that none may newly erect a Dove-house but the Lord of a Mannor and if any doe he may be punished in
the Leete But no action of the case lyeth for any particular man for the infinitnesse of actions that might be brought And of this opinion touching the new erecting of a Dove-cote was Sir Roger Manwood chiefe Baron and the Barons of the Exchequer in the Exchequer chamber Aldens case 43. Eliz. Com. Banco fol. 105. AUncient demise is a good plea in an Ejectione firmae although it is not in trespas because by intendement the freehold may come in debate and the interest of the Land is bound auncient demesne is extendable upon a Statute by Elegit but in an assise by tenant by Elegit auncient demesne is a good plea. 22. Ass Pl. 45. Sir Henry Constables case 43. El. in banco le roy fo 106. NOthing shall be said Wreccum maris but such goods onely which are cast or left upon the Land by the Sea Flotsam maris is when a Ship is drowned or otherwise perish and the goods flote upon the Sea Jetsam maris is when a Ship is in perill of drowning and for disburthening thereof the goods are cast into the Sea and after notwithstanding the Ship perish Lagan vel potius Ligan is when the goods so cast out of the Ship and the Ship perish and such goods are so ponderous that they sinke to the bottome and the marriners to the intent to finde them binde thereunto a Boy or a Corke or other such thing to finde them againe Et dicitur Ligan a Ligando and none of these words which are called Flotsam Jetsam or Ligan are called wreck so long as they remaine in or upon the Sea But if any of them be cast upon the Land by the Sea then it is said to be wreck and by the Statute 15. R. 2. ca. 3. the Lord Admirall shall not have conusance or jurisdiction of wreck of Sea but of the other three hee hath for wreck is when the goods are cast upon the Land and so within some County whereof the Common Law may take conusance But the other three are upon the Sea Magis proprie dici poterit wreccum si Navis frangatur ex qua nullus vivus evasit maxime si dominus rerum subversus fuerit quicquid inde ad terram venerit erit domini regis wreck may by prescription belong to the Lord of a Mannor It was resolved also that the soyle upon which the Sea doth flow and reflow scil Between the high water marke and the low water marke may be parcell of the Mannor of a Subject 16. El. Dier And it was resolved that when the Sea doth flow ad plenitudinem maris the high Admirall shall have jurisdiction of every thing done upon the water between the high water marke and the low water marke as felony c. No proofe is allowable by the Law but the verdict of twelve men part of the goods were wreck and part not damage assessed intirely ergo Judgement given for the defendant The King shall have flotsam upon the Sea because within the ligeance of the King Foxleys case 43. El. Banco Regis fol. 109. IT was resolved if a Felon steale any goods and leave them in a Mannor or Towne or in his house or in the house of another or hide them in the earth or any other secret place and afterwards fly these goods are not forfeited nor waife goods in the Law for waife is where a felon in pursuite waveth or leaveth the goods or for feare to be taken thinking that pursuite was or is made having the goods with him in his possession flyeth away and leaveth the goods In these cases the goods shal be said waved in Law But if he had not the goods w th him when he did fly being pursued or for feare of being apprehended the goods are not waved nor forfeited but the owner may take them againe when he will without any fresh suite But if the Felon in his flying wave them the goods are forfeited by the Common Law If the Felon upon fresh suite be not attaint at the suite of the owner of the goods And the reason that wave is given to the King is for default of the owner that he doth not make fresh suite after for to apprehend the felon Wherefore the Law doth impose the penaltie on the owner Bona fugitivorum are the proper goods of him that flyeth away for felony But it is to be observed that if a man fly for felony his goods are not forfeited untill they be found by indictment or otherwise lawfully found of record upon his acquitall that he fled for the felony they cannot be claimed by prescription because that things forfeited by matter of record cannot be claimed by prescription But waife stray treasure trove wreck of the Sea c. which things may be gained by usage without matter of record there a man may prescribe to have Bona catalla felonum in some cases bona catalla felonum shall be forfeited by conviction and sometimes without conviction but alwayes when any forfeiture is of any goods of felons it ought to appeare of record and that is the cause that such goods cannot be claimed by prescription Deodanda are goods which cause the death of a man by misadventure and are not forfeited untill they be found of record therefore cannot be claimed by prescription the Jury that presents or finds the death ought to finde and apprise the Deodandum also omnia quae movent ad mortem sunt deodanda Bona catalla in exigendo positorum are when any be appealed or indicted of felony and he withdraw or absent himselfe for so long time as an exigent is awarded against him for his absenting which is a flying away in Law he shall forfeite all his goods and chattells which he had at the time of the exigent and after be found not guiltie 22. Lib. Ass Looke the Statute 21. H. 8. ca. 11. concerning goods waved and for restitution c. Mallaryes case 43. Eliz. fol. 111. REndring rent to one and his heires and to one or his heires are all one But a Feoffment tenendum to one or his heires is but during the life of the Feoffee Nemo potest plus juris in alium transferre quam ipse habet this case consisteth much upon atturnements vide le case Wades case 43. Eliz. in Communi Banco fo 114. A Man was bound to pay 250. li. Legal monet Angliae on a day certaine the last time of the day that so much money can be numbred is the best time so that it be before the setting of the Sunne and the most convenient time by Law that both parties may meete five shillings in Spanish money and two pistolets in gold were tendered It was resolved that the Spanish silver was lawfull money of England by Proclamation in tempore Philippi Mariae and so French Crownes for the King by his Prerogative and Proclamation may make any forreigne coyne lawfull money of England That if a man
tender more then he is bound to pay it is good Omne majus continet in se minus That the tendring of 250. li. in bags without shewing or numbering the same is good tender if the truth be that there was so much vide Winters case if there be any counterfeit money in the same yet if the partie then accept the same he cannot compell the partie to change it or if it be a rent or for non-payment a reentree yet the once acceptance is good and the lessor may not reenter Foliambes Case 43. Eliz. fo 115. IN a writ of Estrepement the Sheriffe may resist them that will make wast or cut downe Trees and if he cannot otherwise he may Imprison them and may make warrants to others and he may take Posse comitatus for his aide A writ of Estrepement lyeth in an Action of wast as well before judgement as after Olands Case 44. Eliz. Banco regis fo 116. A Feme Copy holder Durante viduitate sowes the Land and taketh Husband the Lord shall have the Corne for although her estate was incertaine yet it was determined by her owne act so if Lessee at will sowe the Land and determine the will but if Baron and Feme are Lessees during the coverture and the Baron sowe the Land and they are after Divorsed Causa praecontractus the Baron shall have the Emblements because this is the Act of the Court. Pynnells Case 44. Eliz. fo 117. com banco PYnnell brought an Action of Debt upon an Obligation against Cole of 16. l. for payment of 8. l. 10. s. on the 11. of Nov. 1600. The Defendant pleaded that at the instance of the Plaintiffe before the sayd day he paid him 5. l 10. s. and it was resolved by all the Court that the payment of a lesser summe in satisfaction of a greater summe cannot be satisfaction for all so that by no possibility a meaner summe may satisfie the Plaintiffe of a greater but the Gift of an Horse Cowe Robe c. in satisfaction is good But in this case it was resolved That the payment of a parcell and acceptance thereof before the day in satisfaction of all is a good satisfaction in respect of the circumstance of time for paradventure parcell of that before the day may be more beneficiall unto him then the whose summe of money at the day and the value of satisfaction is not materiall for if I be bound to pay you 10. l. at Westminster and you request me to pay 5. l. at Yorke and you will accept the same in full satisfaction of the 10. l. this is a good satisfaction in respect of the place but in this case the Plaintiffe had judgement for the insufficient pleading for he did not pleade that he had paid 5. l. 10 s in full satisfaction as by Law he ought but pleaded the payment of part generally and the Plaintiffe accepted the same in full satisfaction and alwayes the manner of the tender and of the payment shall be directed by him that maketh the tender and payment and not by him that accepteth it Edriches Case 1. Jacobi com banco fo 118. A Rent charge is granted to B. for the life of C. the Grantor leaseth for life to D. the remainder in Fee to E. C. and D. dyes B. distraines E. for all arreares this is good by the Statute of 32. H. 8. cap. 37. Whelpdales Case 2. Jacobi com banco fo 119. IN Debt brought against one joint Obligor the Defendant pleads Non est factum adjudged for the Plaintiffe 1. Resolved he may pleade in abatement of the Writ but not Non est factum for every one is obliged in the intirety therefore if Debt be brought against both and one is outlawed the other who appeares shall be charged with all 2. If a Deede be avoidable by plea he shall not pleade Non est factum 3. If a Deede be made voyd by Statute he shall not pleade Non est factum but shall avoide it by plea but if a deede by matter Ex post facto become not his deede he may pleade Non est factum as if one deliver a deede to deliver over to I. S. who refuseth c. Longs Case 2. Jacobi banco regis fo 120. EXception to the Inditement of Murder the Inditement was taken Infra libertatem villae de C. and C. where the Torte is done is not said to be within the Liberty Response that to Inditements certainty to a certaine intent in generall sufficeth and not to every particular intent for that is Nimia subtilitas and it shall be intended that the Ville of C. is within the liberty of C. the Indictment is Quod dedit vulnus super anteriorem partem corporis subter mamillam where it should be Mammillam Resolved that false Latine shall not quash an Indictment if the word be sensible and these two words are good Latine also this is superfluous for Super anteriorem partem corporis is sufficient and shall be intended the Trunke betwixt the Neck and Thighs 3. Vulnus where it should be Plaga over-ruled because Synonima 4. Le depthe is not shewed it was said that it did penetrate all his body whereby it appeareth that it was mortall 5. It is said that the wound did penetrate his body and not the Bullet this is significant enough 6. Percussit wanteth and for this cause the Indictment was quashed for in all cases of death this ought to be except in case of poysoning and for this last error the Outlary was reversed and H. D. was discharged Saffins Case 3. Jacob. fo 123. com banco A Man maketh a Lease for yeares to commence after the end or determination of a former Lease In esse The first Lease endeth the second Lessee doth not enter but he in reversion entereth and maketh a Feoffement and levyeth a fine with Proclamations and five yeares passe without entry or claime of the second Lessee If this fine be a Bar was the Question and it was resolved to be a Bar for the Statute of 4. H. 7. c. 24. speakes of interest and a Lease for yeares is an interest within the Statute so oâ— tenant by Elegit c. De Libellis famosis 3. Jac. fo 125. A Libell may be made as well against a private man as against a Magistrate Non refert whither the Libell be true or whither the party be of good fame or ill fame for it inciteth all the same Family Kindred or Society to revenge and so tendeth by consequence to the effusion of blood It was resolved in the Starre-Chamber 44. Eliz. Hallywoods Case that if any finde a Libell and would preserve himselfe out of danger if it be against a private man the finder may eyther burne it or presently deliver it to a Magistrate but if it concerne a Magistrate or publick person then he ought to give it to a Magistrate A Libell may be as well by words Verbis aut cantilenis as Writings and by Pictures
pending the Writ Resolv That by the common Law by admission and institution the Usurpor gaines the inheritance of the advowson without regard of the nonage of the Patron because he is in by judiciall act and the Bishop shall be supposed not to doe wrong to the Patron and the incumbent shall not be disturbed to excercise his function but the King shall have a Quare impedit at the common Law Collation doth not put him who hath right to present out of possession but if one have right to Collate it doth an infant by the Act of W. 2. c. 5. shall have a Quare impedit if a man usurp upon an infant who had a Mannor to which c. by discent who at full age infeoffeth B. the Church voideth c. by the usurpation the infant was out of possession and his right passed not and seems the Infant is without remedy If a Clerke commeth in by course of Law this gaineth not the inheritance against the right Patron who was not party to the writ The King shall not recover damages by this Statute for he is not within the first branch Si tempus semestre transierit nor within the second Branch for that depends upon the first yet he shall count to damages An incumbent shall not be moved if he be not named in the writ and if he be not admitted c. pending the writ and lapse shall not incurre if the Bishop be named in the Writ otherwise if he be not If he who is presented pending the Writ be in by rightfull Patron or not yet he who recovereth in a Quare impedit shall have a generall Writ to the Bishop which he must execute of necessity and after that the parties may try their titles as the Law shall determine Countesse of Rutlands Case in the Starre-Chamber 3. Jacobi fo 52. THat the person of a Countesse or a Baronesse may not be arrested for Debt or trespasse for although in respect of their Sex they may not sit in the Parliament yet they are Peers of the Realme and shall be tryed by their Peers Stat. 20. H. 6. Peers of the Realme may not be sworne in any inquest a Countesse in Marrying with a Husband doth loose her Name of a Countesse If a Baronesse c. by Marriage marry againe under the Nobility shee looseth her dignity but if she be Noble by Birth or descent yet whomsoever she Marryeth she remaineth Noble for Birth-right is Character intelebilis and that which is gained by Marriage may also be lost by Marriage A Sheriffe ought not to dispute the Authority of Courts but he ought to Execute the Writs to him directed for thereunto be they Sworne Serjeant at Mace upon a cap. ad satisfaciendum came to the the said Countesse in Cheapside being in her Coach and touched her body with the Mace and said I arrest you Madame at the Suite of S. and those were all the words that were us'd therupon compell'd the Coach man to carry her unto the Counter-gate in Woodstreete and the Sheriffe tooke her into his house In this Case it was resolved that the Sheriffe Bayliffe c. upon the Arrest ought to shew at whose suite out of what Court for what cause it is and when the processe is returnable and that this generall Arrest of the Countesse cannot be said that it was by force of the said Writ of Execution and that this Arrest was of the Serjeants owne head without warrant and against Law and that the said Countesse was falsly imprisoned but she remained in the Sheriffes custody 7. or 8. dayes untill shee paid the Debt but because the Arrest was by a fained Action entered in the Counter the Serjeants were sentenced The Lord Chandos case 4. Jacobi fol. 55. THe King grants to B. in taile and in consideration of the surrender of the Letters Patents by force whereof the King is seised in fee granteth to him and his wife and to the heires of B. the reversion passeth for the recitall that the King was seised in fee was but the Collection of the King and no part of the consideration or suggestion of the party And when the King grants land in posseâ—… if he had but a reversion this shall passe for he is not deceived because lesse passes then he intended Bredimans case 4. Jacobi Com. Banco fol. 56. A Man deviseth a rent for life out of a Mannor and he deviseth the Mannor for yeares the termor enters and pays the rent after the Terme the devisee brings an assize against the Terretenant Resol Payment by lessee for yeares of the rent giveth no seisin to have an assize 1. In respect of the imbecillity of his estate 2. He cannot give seisin because he had not seisin and therefore a Pracipe lyeth not against him because he cannot render seisin but he may take seisin to the use of him in the freehold A disseisor may give seisin of a rent secke because he hath a freehold and it is lawfull 3. A rent secke is caecus siccus therefore it behoveth the first payment which giveth life unto it shall be made by a Tenant of the freehold and in this case being created by devise an Annuity lyeth not thereupon otherwise if it be by grant and Tenant of the freehold ought to attorne to a grant of such a rent over therefore he shall give seisin But seisin by a Bailiffe is good if seisin were had before within sixty yeares and seisin given by Tenant at will is good but it ought to be pleaded as payment by the lessor himselfe If the King hath rent out of a ville to be paid by all the Inhabitants seisin alledged in generall without naming any is good Gatewards case 4. Jac. in Com. Banco fol. 59. TO claime common ratione Commorantiae residen in villa de B. is not good for no man may have interest â—…ommon in respect of a Messuage wherein he hath no interest For custome should alwayes extend to that which hath certenty and continuance and without question tenant in fee simple ought to prescribe in his owne name and tenant for life or yeares by elegit at will c. in the name of him that hath the Fee and he that hath no interest cannot have any common and none that hath any interest although it be but at will and ought to have common but by good pleading he may enjoy the same No improvement might be made in any wasts if this custome viz. in respect of habitation and Comorance should be allowed for tenants for life or yeares at will by elegit by Statute c. of the houses of the Lord should have common in the wasts of the Lord if this prescription were allowed which were inconvenient A Custome that every Inhabitant in B. shall have a way over such grounds either to the Church or Markett c. is a good custome for that is onely easement and no profit and a way or passage may well sequi
none will buy their Wardships 5. After Tender and refusall if the heire be made Knight and marry he shall not forfeite the double value because he is out of Ward but immediatly the Lord shall have a Writte de valore maritagij This was the last Case that Sir John Popham chiefe Justice of England c. ever Argued Sir George Cursons case 7. Jac. Cur. Wardor fol. 75. SIr W. L. seised of a reversion expectant upon taile made to his sonne of land in Capite Covenants to stand seised to the use of his neece the sonne dyeth the King shall not have primier seisin 1. Resol It was Collusion apparent within the Statute of Marlebr cap. 6. to infeoffe the heire apparent and if he infeoffe others upon Collusion averrable but no averrement shall be where the remainder or reversion is left in a stranger or upon a Devise 2. Or otherwise to dispose in the Statute of 32. H. 8. have relation to wills onely for before the Statute every man might dispose of his lands by act executed 3. The Clause in the said Statute which saveth primier seisin to the King hath relation onely to acts executed for the King shall have without that primier seisin of the third part not devised but without that he shall not have it of any part conveyed by act executed 4. If the grandfather convey land to the sonne living the father this is out of the Statute otherwise if the father be dead and so a gift to a Collaterall Kinsman who is not heire apparent is out of the Statute for none will by intendment disinherit his heire to defeate the King of the Wardship or primer seisin and so is the experience of the Court of Wards Bullens case 5. Jacobi Com. Banco fol. 77. THe Lord may have a certeine summe pro certo letae for it shall be intended it was granted at the first by purchase of the Leete for the ease of the Tenants and in consideration of the Lords claiming of it at his owne costs every Eyre The issue was if the plaintiffe was a chiefe pledge and by speciall verdict he was found a Resiant and certified by the chiefe pledges to be a chiefe pledge and was amerced for his default It seemeth he was not Sed materia praedicta consopita fuit in arbitrio See 30. E. 3.23 of franke pledges Lord Abergavenies case Com. Banco fol. 78. A Judgement in an action of Debt is had against a joyntenant for life who afterwards releaseth to his companion all the right c. yet that moytie is liable to the Judgement and so it is of a rent charge during the life of the Releasor Sir Edward Phyttons case Com. Banco fol. 79. EXecutors may take benefit of the Kings generall pardon by which is enacted that all Subjects of the King their heires Successors Executors and Administrators shall be acquitted and discharged of all offences contempts c. and that shall be expounded most beneficially for the Subject And further doth give and grant all goods Chattells Debts c. forfeited And prohibiteth any Clerke to make out any Writte c. Provided that every Clerke may make forth cap. ut at the suite of the plaintiffe against persons outlawed to the intent to compell them to answer and that the partie shall sue forth a scir fac before the pardon in that behalfe shall be allowed which is as much to say having regard onely to the plaintiffe But in regard of the King it is an absolute pardon and grant of his goods and he is a person inabled against the King but not against the partie plaintiffe And every person by himselfe or his Atturney may plead this act for discharge Executors shall have restitution upon the Statute 21. H. 8. Also Administrators shall have a Writt of error upon the Statute 27. El as was adjudged in the Lord Mordants case 36. El. And yet these Statutes speake onely of the partie and not of the Executors or Administrators because no Writt can be against Executors they may plead it without Processe The End of the Sixth Booke THE SEAVENTH BOOK Postnati Calvins case 6. Jacobi Banco Regis fol. 1. R C. By his gardian bringeth an assize the defendants say the plaintiffe ought not to be answered Quia est alienigena natus 5o. Novembris Anno Domini Regis Angliae c. tertio apud E. infra regnum Scotiae ac infra ligeanciam Domini Regis Regni sui S. ac extra ligeanciam Regni sui Angl. c. the plaintiffe demurreth The Case was Adjourned into the Exchequer Chamber and was argued by two Justices every day and by the Chancellour and resolved by the Chancellour and all the Justices except Walmesley and Foster that the plaintiffe ought to be answered For these six demonstrative Conclusions drawne from the Law of Nature the Law of the Land Reasons of State and Authorities of Records and Booke Cases 1 Every one that is an Alien by birth may be or might have been an Enemy by accident but C. could never be an Enemy by any accident whatsoever ergo no Alien by birth 2. Whosoever are borne under one naturall ligeance due by the Law 〈◊〉 nature to one Soveraigne are naturall borne Subjects But C. was borne under one c. ergo a naturall borne Subject 3. Whosoever is borne within the Kings protection is no Alien But C. was borne under c ergo he is no Alien 4. Every stranger borne must at his birth be either amicus or inimicus but C. at his birth could neither be amicus nor inimicus because he was subditus ergo no stranger borne 5. Whatsoever is due by the Law of man may be altered but naturall legeance of the Subject to the Soveraigne cannot be altered ergo not due by mans Law Lastly whosoever at his birth cannot be an alien to the King of E. cannot be an alien to any of his Subjects of E. but C. at his birth could be no alien to the King of E. Ergo he cannot be an alien to any of the Subjects of E. the Maior and Minor both be Propositiones perspicuè verae and although Alienigena dicitur ab aliena gente yet that is all one as Alienae ligeantiae and arguments drawne from Etymologie are feeble for Saepenemero ubi proprietas verborum attenditur sensus veritatis amittitur yet when they agree with Law Judges may use them for Ornament and dâ—verse inconveniences would follow if the Plea against the Plaintiffe should be allowed For first it maketh legeance locall wereupon should follow first that legeance which is universall should be confined within locall limits 2. That the Subject should not be bound to serve the King in Peace or in Warre out of those bounds 3. It should illegitimate many which were borne in Gascayne Guyan Normandy c. and diverse others of his Majesties Dominions whilst the same were in actuall obedience And lastly this strange and new devised Plea inclineth too much to
from an auncestor a Subject but not where it discends from an auncestor who was King except in speciall cases 3. The issues of the King at the time of the levying of the fine are subjects therefore within the Statute and it seemd to them that there ought to be Letters Patents to give power to the Conisee to enter into the Land Nevills Case 2. Jacobi fo 33. THe dignity of an Earle intailed is forfeitable for treason 1. Resolved this is within the Statute of W. 2. De donis and experience is to give dignities in taile with remainders over also this was an office anciently and offices may be intailed 2. A dignity may be forfeited at the common Law by a condition in Law for the Office of Earle was Ad consulendum Regem tempore pacis defendendum Regem tempore belli therefore he forfeits it when he takes Councell and Armes against him 3. If it were not forfeited by the common Law yet it is by 26. H. 8. cap. 13. by this word Hereditament and the words use or possession which are added are to shew that every Hereditament shall be forfeited at the common Law Donee in taile had Potestatem alienandi post prolem suscitatam but if hee reteine the Land himselfe he hath no absolute fee for none shall inherit but the heire Per formam doni so it is now in case of annuity and other things out of the Statute Penall Statutes 2. Ja. fo 36. WHen a Statute is made by Parliament the King cannot give the penalty benefit or dispensation of the same to any Subject but the King may make a Non obstante to dispense with any perticular person that he shall not incurre the penalty of a Stature and the King after a forfeiture or penalty of a Statute by judgement and recovery may grant the same to any of his Subjects by way of reward and all the Judges of England subscribed to this the 8. Day of November 1604. Lillingstons Case 5. Jacobi fo 38. TEnant in fee grants a rent charge proviso that the person of the grantor shall not be charged the grantee acknowledgeth a recognizance according to 23. H. 8. and after releaseth to the grantor the conisee sueth an extent and brings debt against the grantor Terretenant 1. Resolved the rent is extendable for notwithstanding the release it is In esse as to the Conisee and cannot be discharged by the act of the Conisor also the extent relateth to the judgement at which time it was extendable See the Lord Aburgavenies Case in the sixth Report 2. Debt lyeth not so long as the extent indureth for so long the rent hath continuance although that by the release the freehold be determined if a rent charge be granted for life with proviso as above-said if the rent be determined debt lyeth against the grantor because he had no other remedy Bedels Case 5. Jacobi fo 40. R. B. Covenants in consideration of paternall love c. to stand seised to the use of himselfe for life the remainder to his Wife for life the remainder over 1. Resolv although the consideration in the deed runneth not to the Wife yet another consideration may be averred which stands with the Deed. The limittation of an use to the Wife importeth a consideration in it selfe so if it be to any of his blood but if he Covenant in consideration of a 100. l. to stand seised to the use of his Sonne nothing passeth untill inrollment Quia expressum facit cessare tacitum Beresfords Case 5. Jacobi fo 41. AN use is limitted to A B. and of the heires Males of the said A. lawfully begotten this is fee taile notwithstanding the words of the Body be wanting and that lawfully begotten are implied for no heire shall inherit who is not lawfully begotten Resolved that to create an inheritance the word Heires is necessary but the words De corpore are not necessary to make an estate taile if there be words which Tantamount and here the sence according to the intent of the Donor is of or by the said A. lawfully begotten A gift to a man haeredibus de se exeuntibus or Haeredibus suis de prima uxore sua are estates taile Kenns Case 4. Jacobi fo 42. C. K. had issue by E. S. M. K. and they are divorced and the Marriage sentenced void C. K. marrieth F. they have issue E. K. C. dyeth E. K. is found by office to be Heire M. and W. her Baron preferre a bill in the Court of wards to traverse the Office to which the Committees of the wardship answer one of the Committees dyeth M. and W. sue a Bill of Reviver and M. having issue E. dyeth E. her issue and R. her Baron bring a new Bill of Reviver 1. Resolved so long as the sentence stands in force the issue of the first feme is a Bastard because the spirituall Judge hath jurisdiction thereof and our Law giveth faith unto it Sentence of divorse may be repealed after the death of the parties but no divorse can be after their dearh for that will Bastardise the issue and the Court of the King hath triall of it originally not being hindered by any Sentence 2. The Plaintiffe shall not have a traverse without an office found for her for the King being sure of wardship shall not be ousted by one before that he be sure to have benefit by him and 2. E. 6. cap 8. doth not extend to give a traverse without office but if by two offices two are found Heires whereof one is within age by that Statute the other may traverse immediatly 3. A bill of reviver upon a bill of reviver shall not be suffered for the infinitnesse no more then a Writ by Journeys accompts By all the last bill was absurd which prayeth that the first bill be revived because M. was dead but it ought to be that her Heire may traverse The End of the Seaventh Booke THE EIGHTH BOOK The Princes Case 3. Jacobi in Chancery fo 1. THE Queene 37. Eliz. grants three Mannors parcell of the Duchee of C. to H. L. and G. M. the King at the supplication of the Prince brings a Scire facias against the said H. L. and S.H. to make Livery to the Prince by force of the Statute of 11. E. 3. H. L. pleads Null tielum recorde S. H. pleads the Patents with a Non obstante 32. H. 8. whereby these Mannors were made parcell of c. and the Act of Confirmation 43. Eliz. As to the plea of H. L. the Atturney sheweth an Inspeximus and demurreth upon the plea of the other two who joyne and as Amici curiae repeate part of the Statute of 1. H. 7. touching the Duchie H. L. demurreth 1. Resolv the Charter of creation of the Prince Duke of C. 11. E. 3. is an Act of Parliament for such a limittation to the first-begotten Son is void without Statute for if Grandfather King the Father Duke and Sonne be if
shall abate against all but if it be for matter in fact onely as for misnaming one Defendant it shall abate onely against him omission or addition which doth not alter the forme is amendable as if Dei gratia be omitted Voluntary or negligent keeping of Records by the Clerke is amendable by other parts of the Record or by exemplification Count or plea in barr c. which wanteth substance shall not be amended in another Terme but default in the colour because this is the default of the Clerke shall be a Record shall be amended in another Terme by the paper Booke and a thing apparent to be the fault of the Clerke shall be amended in another Terme as rien luydoit de hoc c. predictus defend pro quaerent Nisi prius shall be amended by this Statute if power be given to the Justices to proceed otherwise not as if issue joyned in the Record be mistaken in the Nisi prius it shall not be amended but misprision of dammages shall be because this is not materiall to the issue and it is the default of the Clerke Warrant of attorney and returnes are amendable by this Statute but if there be none at all it is out of the Statute and because this Statute leaveth many cases without remedy the Statutes of 32. H. 8. cap. 30. and 18. Eliz. cap. 14. were made Ten misprisions as yet not remedied 1. Variance materiall betweene the originall and the Count. 2. Want of substance in the originall or Count. 3. Insufficient tryalls 4. If a Coroner returnes the Jury where the Sheriffe ought 5. Lack of name of the Sheriffe to the returne 6. Where no returne is indorced upon the Venire facias 7. When one who is not returned giveth a Verdict 8. Pleas of the Crowne 9. If it appeare to the Court that he who hath a Verdict had no cause of action 10. Errour in Law Cases in the Court of Wardes Myghts Case 7. Jacobi fol. 163. 1. REsolved if J. M. purchase Lands to him and an Infant in fee it cannot be averred that this was to take away the wardship because he never was sole Tenant to the King 2. No feoffement that I. M. can make of his moity can be aver'd to be by collusion c. because without feoffement no wardship shall be and also the Statute speakes of sole seisin 3. A feoffement to the wife or younger Child cannot be averred to be by covin c. upon construction of the Statute of 32. 34. H. 8. where collusion cannot be averred by the Statute of Marlebridge it cannot be now to seize all the Land but it may be for the third part which belongs to the King If a third part be left to the King no averrement of covin may be for the other two parts the Father makes a feoffement to diverse uses the remainder to his second Sonne and dyeth his Eldest Sonne dyes the second Sonne shall not be in ward by averment of covin Digbies Case 7. Jacobi fo 165. TEnant of the King conveys his Lands to the use of himselfe for life the remainder to his Sonne and Heire in taile and after is attainted of Treason the King shall have no wardship of any part of the Land by 32. 34. H. 8. because there is no Heire and livery must be sued in the name of the Heire but the King shall have wardship in such a case before 26. H. 8. because there was an Heire The Earle of Cumberlands Case 7. Jacobi fol. 166. E. 2. granted the Castle and Mannor of S. in taile to R. C. H. 6. granted the reversion to T. C. if the taile be good if not he grants it in possession this is good one way or other and so are many Patents from time to time Paris Stoughters Case 7. Jacobi fol. 168. BY Mandamus it was found that P. S. dyed seised 40. El. and held of the Queen in common socage 7. Jacobi a Melius inquirendum was awarded whither he held of the King by common socage or in chivalry and it is found that he held of the Queene by chivalry This Writ of Melius c. is repugnant and giveth no authority to find this office because a Tenure cannot be of the King in the time of Queene Elizabeth and therefore a new Writ shall be awarded but if the first Melius be good no other shall issue 1. For avoiding Infinitnesse 2. A Diem clausit c. shall not issue upon a Diem c. Nor Mandamus upon a Mandamus so a Melius c. shall not issue upon a Melius 3. If an Office be found against a Subject he shall have a traverse and if upon that it be found against him he hath no remedie So the King shall have but one office and a Melius and no more although that a Tenure be found of two Subjects or one hath an Ouster le maine the King shall not reseise without a Scire facias Toursons Case 8. Jacobi fol. 170. IF Tenant of the King commit Fellony Ao 1. Jaco and after is attainted Ao 3. for the same and after in Ao 4. all is found by office Now this office shall have relation to the time of the Fellony to avoid all meane alienations and incumbrencies but for the meane profits it shall have relation to the time of the Attendor for their the Kings Title appeared of Record and the like Law is of an Ideot But in case of a ward within age the King shall have the meane profits from the death of the Auncestor because he hath it by reason of his Seigniory and he looseth the rent and services in the meane time the difference is when the King seiseth jure protectionis regae or Nomine destrictionis and when Ratione Prioris recti seu tituli Sir Gerrard Fleetewoods Case 8. Jacobi fol. 171. SIr William Fleetewood receiver of the Revennues of the Court of Wards in Anno. 35. Eliz. was possessed of a Messuage and certaine Lands in Harrow in Com Mid for a tearme of yeares in Anno. 36. Eliz. he became Receiver generall and was bound in 20. Obligations of 200. l. a peece to make true account c. And after upon severall accounts he became indebted in great Summes of money to the Queene and being so indebted in consideration of 1100. l. did bargaine and sell the said Lease to James Pemberton which by meane conveyance came to Sir Gertard Fleetwood Question Whither this Lease c. was extendable and lyable to the Kings Debt c. and it was resolved that the said sale of the tearme was good against the King because the tearme was but a Chattell and the sale of Chattells after judgement Bona fide is good but not after Execution awarded And Cooke Chiefe Justice said that a Receiver or other accomptant which is indebted shall not be in worse case then a Fellon or a Traytor that may after Fellony or Treason and before conviction sell Bona fide for his
aforesaid an Assumpsit without specialty is no more personall then a Covenant by specialty and therefore dyeth not with the person William Banes Case in banco regis 9. Jacobi fol. 93. UPon an Action of Assumpsit against Executors the Plaintiffe needeth not to averr that the Executors have assets in their hands of the goods of the Testator to the value of the said Debt for it shall be intended Prima facie that they have Assets for the Law doth presume that the Testator will not leave a greater charge upon his Executors then he will leave benefit to discharge If a Stranger doe say unto a man to whom a Debt is owing I pray â—ou forbeare your Debt and doe not sue the Partie untill Michaelmas c. and then I will pay you the Debt This is a good consideration although it be no benefit to him that made the promise for it It is a damage to the Creditor to forbeare his Suite or debt hee may have his Action of assumpsit against such a Stran-ger after the day Sir George Reynells Case 9. Jacobi fol. 95. In Chancery IT was found by Office by Commission under the great Seale That the Marshall of the Kings Bench had committed diverse Forfeitures of his Office by suffering voluntary escapes of Prisoners That Office and such like may not be granted for yeares because it is an Office of trust and personall and he must continually attend and be Sworne in Court Two matters of record amount to an Office as in the Case of Sir John Savage who was Sheriffe of the County of Worcester for life by Letters Patents under the Great Seale and was Indicted of two voluntary escapes of Fellons and the King may seize his Office into his owne hands without suing forth any Scire facias 5. Mar. Dyer The Abbot of Saint Albones had a Gaole and detained Prisoners therein and because he would not be at charges to sue forth a Commission for the Gaole delivery the King caused his Franchise and Liberty thereof to be seised into his owne hands The Abbey of Crowland had a Gaole and Prisoners and for that hee once deteined men that were quit of Fellony the King reseised the Gaole for ever If a man grant an Office to another for life or for yeares and he will not doe his Office or otherwise misuse his Office the Grantor may reseize the said Office 39. H. 6. fo 34. If a Gaoler commit voluntary escapes or permit them this is a forfeiture of his Office Cooke Lib. 9. in the Countee of Salops Case The King may grant the custody of the Gaole to one in fee and also to the Sheriffe of a County to one and his Heires which estate in fee simple includes all other estates and it is true that these grants may be made by Law for in these Cases there is not any intermission for presently after the death of the Ancestor the Office discends to the Heire 2. This Office cannot be forfeited by Outlary as if it were granted for yeares it might grants of these Offices in fee or for life have beene allowed and approved but such grants for yeares were never allowed or approved Et periculosum existimo quod bonorum virorum non comprobatur exemplo He that hath the custody of the Gaole whither by right or wrong shall be charged with escapes of Prisoners untill he be actually removed Margaret Podgers Case 10. Jacobi fol. 104. I. P. Copy-holder for life the remainder for life the Lord bargained and sould and levyed a fine to I. P. this discended to M. P. who levyed a fine five yeares passe without claime of them in remainder adjudged no barre 1. Resolved that Copy-hold estates are within 4. H. 7. by the word Interest but if the Fine be by covin this barreth not the issue if Lessee for yeares or Copy-holder be ousted the Lord shall not have five yeares after a fine levyed by the disseissor after their estate determined because he may presently have an assize otherwise where Lessor for life is ousted A meer Stranger cannot enter to avoyd a fine without Commandement or assent of the party who hath right but a Gardian in socage or Lessor for life or Lord of a Copyholder may for the privity betweene them and the Infant or Lessees 2. A Fine barreth not any by Non-claime who is not put to a right therefore here they in remainder are not barred because the bargaine and sale and Fine to the Tenant in possession putteth them not to a right 1. Because it is a lawfull act 2. Tenant in possession devesteth not the remainder by acceptance as if Lessee for life accept a fine Corne ceo although it be a forfeiture 3. Because he is in by 27. H. 8. of uses which doth no wrong 3. After the bargaine and sale he in the next remainder shall not enter for by the custome his estate was to commence after the death of the Tenant in possession so if Tenant in possession forfeite the Lord and not he in remainder shall enter but thereby without a speciall custome the remainder is not destroyed If a Copy-holder in fee surrenders to the use of one for life no more passeth then serveth the estate limitted and he shall pay no fine for admittance after the death of Tenant for life It seemed to the Chiefe Justice that if the Lord here had charged the Land I. P. shall not hold it charged for the estates in remainder preserve him from incumbrances of the Lord. Meriel Treshams Case 10. Jacobi Communi Banco fol. 108. AN Administratrix Defendant in Debt pleads that the Testator and his Sonne acknowledged a recognizance to the King of a hundred pound and another of 800. l. to B. and another of a 1000. l. to M. and diverse others over and about which she had not assets and after said she had not sufficient assets the Plaintiffe replieth that the recognizance to B. was for payment of 400. l. which is paid and the other to M. is to performe Covenants whereof none is broken and the recognizance remaineth in force by Covin of the Defendant 1. Resolved that the barre is insufficient for shee first confesseth that shee had sufficient assets to pay the said recognizances and after denyeth it 2. She saith she had assets but not sufficient this is too generall but shee must confesse how much she had because she had knowledge thereof 3. The pleading by the Plaintiffe that the Obligation was made to performe Covenants is good without more certainty because he is a Stranger 4. The generall allegation of Covin is good without shewing of refusall to release c. and fraud may be in one onely also the barre is insufficient because the intestate was bound in the recognizances with another and the Defendant had not averred that the other had not satisfied them Robert Marys Case 10. Jacobi fol. 111. A Commoner being Copy-holder brings an Action of the Case for putting Beasts into the Common whereby
defeasible Title the other shall distraine for the moity of the Seigniory and the Act of the Coparcener shall not prejudice her There are foure manner of Avowries 1. Upon his very Tenant 2. Upon his very Tenant by the manner where the Tenant had but a particular estate 3. Upon his Tenant by the manner when the Lord had but a particular estate 4 Upon the matter in the Land as within his fee but the Lord hath liberty to Avow according to the Common Law Thoroughgoods Case 9. Jacobi fol. 136. TEnant in fee infeoffeth one by Deed indented and delivereth it upon the Land in the name of seisin this is good and hath a double operation at one instant Viz. to deliver the Writing as a Deed and to deliver seisin of the Land according to the Deede 1. Resolved this is his Deed although he doth not say so but delivers it in the name of seisin for delivery is good without any words if one deliver a Deed to one as an escrow to be his Deed upon performance of conditions this is his Deed presently otherwise if he deliver it to a stranger so words are good without actuall delivery as if he saith take it like to a livery within view If the Obligee deliver the Obligation to the Obligor to redeliver the Obligor may retaine it for the words to redeliver are void 2. Delivery of the deede upon the Land amounteth not to livery and seisin but it doth if delivered in the name of seisin so of any other thing or if he saith I deliver you seisin without delivering any thing this is good also Beaumonts Case 10. Jacobi fol. 138. I. B. and E. his Wife Tenants in speciall Taile the remainder to the Heires of the Baron I. B. levies a Fine to K. E. 6. who grants to the Earle of H. in fee I. B. dyeth E. enters the Earle of H. confirmes her estate to have to her and the Heires of the body of I. B. E. dyeth seised having issue F. B. who accepts a fine Sur conusans de droit tantum with Proclamations and dyes having issue Sir H. and I. Sir H. in Ward to the K. after full age and before livery Covenanteth to stand seised to the use of himselfe and his heires Males of his body and dyes having issue onely a Daughter in Ward whether shee or I. B. shall have the Land c. 1. Resolved that E. had an estate taile and the Statute of 4. H. 7. c. 24. which inableth the Baron to barre the issue saveth the right of the Feme if shee enter or c. and one may have an estate taile which cannot discend as if the Sonne in the life of the Father levyeth a fine the Father remaineth Tenant in taile still although it cannot discend and E. here hath an estate taile so long as shee liveth or the Heires in taile remaine 2. The Confirmation is void for he who did confirme had but a possibility which passeth not by the confirmation and if he had a reversion in fee yet it should be void 1. Because the taile which the Feme had was confirmed which cannot descend 2. The confirmation doth not add a descendible quallity where he who should have it is disabled to receive by discent 3. This would in effect repeale 4. H. 7. 32. H. 8. two of the principall Pillars of the Law 4. 5. If Tenant in Dower grants her estate there is a discendible quality in the Heire to bring wast against Tenant in Dower and although the Heire confirme her estate for life and after shee assigneth it to I. S. who committeth wast yet the action of wast is maintainable against her Pari ratione in the Case at Barre in regard the confirmation doth not inlarge the estate of E. it cannot add unto it a discendible quallity 6. There are but three manner of Confirmations Viz. Perficiens Crescens aut diminuens and the Confirmation in this Case is none of them and if E. had no power to levy a fine or suffer recovery the reason is because she cannot barre that which was barred before by her Husband but this point was not now in Question The End of the Ninth Booke THE TENTH BOOK The Case of Suttons Hospitall Baxter Plaintiffe Sutton and Law Defendants in Trespasse in the Kings Bench and adjourned into the Exchequer Chamber and judgemet given against the Plaintiffe 1. Obj. BY the Parliament 7. Jacobi the Hospitall was Founded at H. in Essex Ergo the incorporation made after by the Kings Letters Patents is void and the Charterhouse is not given by the said Statute because S. purchased it after 2. Sutton who had License to Found an Hospitall before the Foundation dyed 3. The K. cannot name the House and Lands of S. to be an Hospitall because in Alieno solo 4. Every Corporation ought to have a place certaine but here the License is to found an Hospitall at or in the Charterhouse Ergo before that S. had made it certaine there was no incorporation also the place of Corporation ought to be certaine by Meates and Bounds and a place knowne will not serve 5. The King intended to make an incorporation presently which cannot be before that S. name a Master 6. Governors cannot be untill there be poore in the Hospitall Ergo S. calleth it in his Will his intended Hospitall 7. The Foundation cannot be without the words Fundo erigo c. and before such Foundation a Stranger cannot give Lands unto it 8. The Master was named at will where he ought to be for life and have freehold in the Lands also the Hospitall must be Founded before a Master be named 9. The bargaine and sale made by S. is void 1. Because the Money paid by the Governours in their private capacity shall not inure to them in their politick capacity 2. The Habendum is to them upon trust which cannot be in a Corporation 3. Because as before no Hospitall was Founded 10. The King cannot make Governours of a thing not in Esse To the first it was answered that the Letters Patents recite the preamble of the Act whereby and in many parts of the Act it appeareth that the incorporation was to be In futuro when it shall be erected and the Statute doth not give any Lands unto it but power to give without License of alienation and mortmaine and it appeareth by the Letters Patents that the erection precedes the License 2. The License is to him his Heires Executors c. at any time hereafter and the words of incorporation are in the present and so the incorporation precedeth the execution of this License 3. Although the King gave the name yet S. devised it and assented to it and the K. did it at his Suite 4. The K. makes an Hospitall of all the premises so that it is certaine and as to that which was said that a place uncertaine cannot be an Hospitall It was answered that a Mannor may be which is
inqure of the value if they finde for the Plaintiffe as in an Assize if issue be joyned upon a release and found for the Plaintiffe yet the recognitors must inquire of the seisin and disseisin and this defect shall not be supplyed with a Writ of inquiry because then the Defendant would be prevented of his Writ of attaint But if the Court ought to inquire of things whereof no attaint lyeth this being but of Office it may be supplyed by a Writ of inquiry as the foure points in a Quare impedit Viz. De plenitudine ex cujus praesentatione si tempus semestre transierit and the value of the Church per annum and in the case at Barr by the rule of the Court a new Venire facias was awarded The Case of the Maior and Burgesses of Lynn Regis touching misnaming of Corporations 11. Jacobi fol. 122. Communi Banco H. 8. in the 29. yeare of his Reigne did incorporate that Towne by the name of Majoris Burgensium burgi domini Regis de Lynn Regis and one made an Obligation to them by the name of Maior and Burgesses of Lynn Regis omitting these words Burgi Regis this is good because it is the same name in substance and doth not vary in materiall words and though it be not Idem nomen sillabis yet it is Re sensu for Burgesses that implyes it is a Burrough for Burroughs and Burgesses are conjugata and by Lynn Regis it appeares that it is Burgus suus i. Regis a fortiori because there is no other Corporation of the same name Apices juris non sunt jura there may be a difference betweene ancient Corporations and new for ancient Corporations may by usage have severall names and the Maior and Burgesses notwithstanding Non est factum pleaded had judgment to recover William Cluns Case 11. Jacobi fol. 127. Banco Regis A Lease for yeares if the Lessor should so long live rendring Rent at the foure Feasts or within thirteen weeks after after one of the Feasts the Lessor dyeth and before the thirteene weekes be past the Executor brings debt against the Lessee and the Defendant demurreth upon the Count and it was adjudged a good demurrer and that the action did not lye 1. Because the disjun ive is added for the benefit of the Lessee and the first day was but for voluntary payment but the legall time of payment was the end of the thirteene weeks before which when the Lessor dyeth the Lessee is discharged by act of God for that Quarter if Lessee before the day pay the Rent this is voluntary and not satisfactory but it is good to give seisin if payment be in the morning and the Lessor dyeth at noon this is voluntary and satisfactory against the heire but not against the King Payment the last instant of the day is satisfactory and after the day it is coercive and satisfactory 2. When the first day is past it is as if the Rent had been onely reserved the second day for the election is good 3. The rent is to he payd out of the profits of the Land Ergo in regard of time it shall not be apportioned and if the Lessor dye betwixt the first day and the last day his heire and not the Executor shall have the rent because it was not then due if a man lease for yeares rendring Rent at M. or within a moneth after with a condition of re-entry and the Lessee tenders it at the last instant of M. the Lessor shall not re-enter upon demand the last day of the moneth because the Lessee had liberty to pay it then and the difference was taken betwixt the sayd disjunctive Reservation and when the reservation is at a certaine Feast and a condition is added that if it be arrere by the space of a moneth after the Feast that then the Lessor c. there the Lessee for salvation of his Lease cannot tender it at the last instant of the Feast because he had no such liberty as in the other Case A Lease for yeares rendring Rent at M. or within twelve dayes after upon condition to re-enter if it be arreare by the space of twelve dayes after any of the sayd Feasts or dayes the Lessee shall have twenty foure dayes in safegard of his Lease after the Feast of M. and in the Case at Barr judgement given Quod quaerens nil capiat per billam James Osbornes Case 11. Jacobi fol. 130. Banco Regis IN an action upon the Case for that the Plaintiffe had bought of the Defendant diverse goods which he refused to deliver whereof one was unum fulchrum lecti Anglice a Feild Bedstead with a Testerne and Curtaines of Saye the Plaintiffe recovers and damages assessed intirely where none ought to be given for the Testerne c. for Fulchrum signifieth a Bedstead onely upon errour brought therefore judgement was affirmed for one thing onely is here put in issue for the other things are not alleadged Positive sed expositive and are nugation but when two things are put in issue or Obliqué inquired of by the Jury there it is not good and it shall not be intended that damages were given for that onely for which the action was brought but in an action upon the Case for words spoken at one time whereof some are actionable and some not there damages may be assessed intirely and shall be intended to be given for the words actionable onely 1. Because the Plaintiffe must declare as the words were 2. Because the words not actionable aggravate the damages otherwise if spoken at severall times but here damages shall be intended to be for that which is actionable onely and the rest as if never alleadged and in Writs or Pleas English words are not admitted by 36. E. 3. cap. 15. except they be parcell of a name as Jo. in the Hall 2. words which passe under the name of Latine are 1. Good Grammaticall Latine 2. Words significant in Law and not in Grammar 3. Incongruous Latine which doth not vitiate a Plea or Grant nor judiciall Writ 4. Words insensible having no countenance of Latine and are rejected but fained words as Velnetum Stapedia c. are good Read and Redmans Case 10. Jacobi fol. 134. THe Defendant in debt brought by two Executors pleads the death of him who was summoned and severed Resolved The Writ shall not abate if two purchase an originall reall action and one dyeth pending the Writ this shall abate in all as in case of joyntenants or parceners where one dyeth having issue or no issue because that shee may have a Writ for the whole and shall not recover a moity and one shall not recover upon a false reall Writ or unapt for his Case in respect hee may have an apt Writ although it happen after by act of God but if two purchase a judicial Writ and one is summoned and severed and dyes without issue the Writ shal not abate the same law where jointenants
nor body were lyable to Execution in Debt or damages recovered but Execution was to be done by Fieri facias or Levari facias of his Goods and Chattells and profits growing upon his Land but in debt brought against one as heire his Land was liable to Execution because the Plaintiffe had no other remedy for the goods belong to the Executors but the body goods and Lands of the K. Debtor or accomptant were ever liable to Execution but such Levari facias or Fieri facias ought to have beene sued within the yeare or otherwise he was chased to his Writ of Debt and now by Westm 2. c. 45. he may have a Scire facias and by the 18º Chapter of that Statute an Elegiâ— is given of the moity of the Land which was the first Act that subjected Land to Execution for Debt or Recognizance and by the Statute of 13. E. 1. de Mercatoribus 27. E. 3. c. 9. 23. H. 8. c. 6. In Statute Merchant and Statute Staple all the Lands of the Conusor at the day of acknowledgement shall be extended into whose hands soever they shall after come But in all Actions Vi armis where a Capias lyeth in Processe there after judgement a capias ad satisfaciendum lyeth the K. shall have a Capias pro fine and in such cases the Law the preserver of peace subjecteth the body to Imprisonment and by Marlebridge c. 23. West 2. c. 11. a Capias was given in an accompt the proces before being a distresse infinite and by 25. E. 3. c. 17. the same proces given in Debt as in account for before this Act the body was not liable to Execution for Debt as aforesaid 2. If Land of the heire be seised in Execution upon a recognizance of his auncestor he shall not have contribution against a purchasor of his Auncestor although he come in without consideration and although the Heire be not charged as Heire but partly as Terretenant but one purchasor shall have contribution against another purchasor and one Heire against another Heire because they are in Aequali jure and therefore the Writ here which issued against the Heires without naming the purchasor is good although he be charged as Terretenant The Heire shall have an Audita quaerela as well as the Conusor himselfe before Execution sued and a Supersedeas but a Stranger shall not If diverse acknowledge a recognizance the charge doth not survive and the Land of one shall not be put in Execution but all their Lands equally so if two are bound to warranty both or their Heires and the survivor and the Heire of the other shall be jointly vouched and the Land of both shall be rendered in value But if Baron and Feme and the Heires of the Feme are bound to warranty and the Feme dye the Land of the Baron may be solely taken in Execution because there are no Moities betweene Baron and Feme So that when Land shall be charged by any Lien the charge ought to be equall but in a Lien personall otherwise it is as if two are bound in an Obligation there the charge shall survive But a Purchasor Bona fide before any Action brought shall not be subject to any charge And three Errors were moved in the record 1. The Scire facias was Haerediterrarum c. which is improper for he is not Heire to the Land but to his auncestor 2. The Writ is Scire facias haeredi terrarum c. and the Retorne is Scire fecit W. H. militi haeredi praedicti M. and every Retorne must answer the point of the Writ 3. The judgement is generall against Sir W. H. where it ought to be speciall for otherwise his owne Land shall be liable where by the Law the Land onely which came to him by his Father ought to be charged and he is charged as Terrtenant as aforesaid but these poynts were not resolved by the Court. Nota the new Writ of Error after entry of the first was not brought Quod coram vobis residet because the Record is not removed out of the keeping of him who had the custody thereof before A Perfect Table of the Principall matters contained in every Case in this Booke WHAT words doe make a generall warranty and to whom the custody of evidences doth belong Page 1 Tenant for life commeth in as Vouchee in a common recovery it is a forfeiture Page 1 2 23. H. 8. Extends not to suppresse good uses the conveyance good and the bad use void any man may give Lands to Charitable uses Page 2 Touching the Exposition of the Kings grants and how the words Ex speciali gratia mero motu c. therein shall be construed Page 3 A common Recovery by Tenant in taile binds them in remainder and reversion and all Leases and charges granted by them ib. A feoffement by Tenant for life destroyeth a contingent remainder Page 4 Conusee of Tenant for life and him in remainder in taile renders a rent to Tenant for life it is good during his life ib. Tenant for life and he in remainder in taile infeoffe I. S. it is no discontinuance or forfeiture otherwise if without deede Page 5 Perpetuities are against Law but the Parliament or Law may make an estate as to one and good to another Page 5 6 Tenant in taile suffers a recovery and dyes before Execution it may be sued against the issuâ— and when a man may enter or claime the Law will not put things in him till entry or claime Page 7 A man may be in by discent and yet not have his â—…ge ib. A future power of revocation may be released Page 8 When any thing Executory is created by consent of all it may be voided Page 8 A feoffement by feoffees devesteth all future uses contingent Page 9 27. H. 8. Transferreth the possession to uses onely In esse ib. When a remainder ought to vest ib. 27. H. 8. Of uses shall not be taken by equity ib. A diversity when Tenant for life infeoffeth the reversioner mediate and when imediate there it is no forfeiture ib. A disseissor may make admittances but not voluntary grants Page 11 A difference when a confirmation is made to one that is in upon an expresse condition and when not there the estate is absolute ib. Every fee simple may be charged one way or other Page 12 A difference betweene Terminus annorum Tempus annorum Page 13 A Termor grants to B. so many yeares as shall be behind Tempore mortis suae it is void otherwise if for a certeine number of yeares ib. A lease cannot comence upon a double contingency Page 14 He who hath a power of revocation may doe it part at one time and part at another time till he hath revoked all Page 15 By the same conveyance the old uses may be revoked and new raised Page 16 Vpon what conveyances uses may be raised upon a generall consideration Page 16 17 An Action of
the Case lyeth for disparaging the Plaintiffes Title unto Lands Page 17 THE SECOND BOOKE AN illiterate man is not bound to seale a Deed without hearing the same read and Ignorantia facti may excuse but Ignorantia juris doth not Page 19 If a man plead that he hath kept I. S. indemnified he must shew how but not if he pleads in the negative Page 19 20 The Date of a Deed is not of the substance thereof Page 20 If a Deed be made by Menace it is avoidable by Plea ib. If it be read in other words then it is it bindeth not Page 21 But if he require it not to be read it shall bind him ib. Touching considerations to raise an use Page 21 Where an estate taile is barrable notwithstanding 34. H. 8. Page 22 A Lease by the Q. under the Exchequer Seale is good ib. What Act doth extinguish a Copy-hold Page 23 Things which lye in grant are effectuall by delivery of the Deed without other ceremony ib. Where the Habendum in a Deed is void and where voidable ib. A sale by the Bankrupt after a Commission awarded is void Page 24 13. Eliz. giveth benefit to such onely as comes in ib. The possession of the House is a good possession of the Lands also Page 25 What passeth by this word Cum pertinentijs ib. Where by a Deed Lands are granted Scituate in one place and they lye in another what passeth thereby ib. Where the Act of 34. H. 8. aideth a voidable grant Page 26 A. demiseth bargaines and sells to B. upon consideration for yeares and no Attornement to B. what passeth to him Page 27 Much learning of Elections ib. What Persons capable of Tithes at the Common Law Page 29 Where a man may prescribe to have Tithes appurtenant to a Mannor Page 30 Where a Religious House or Colledge is given to the K. by 1. E. 6. Page 31 Where a perpetuall unity dischargeth Tythes by 31 H. 8. or 1. E. 6. Page 32 Where a possibility shall make a grant good Page 33 Where a Tender upon a condition shall devest an estate Page 34 An estate of freehold cannot commence in Futuro Page 35 The Office of the premisses and Habendum ib. Where the Husband solely may declare the use of a fine of his Wifes Land and when it shall bind her and when not Page 36 Where a Variance in the Declaration avoideth all Page 37 What act of the feoffor dispenseth with a condition Page 38 Where a feoffee is disabled to performe a condition ib. An estate made to three and to the Heires of one the jointure continueth ib. A demise made by Baron and Feme without saying by Deed ib. Attornement of one Tenant for life to the grantee is good Page 39 Where one jointenant may prejudice another ib. In what clauses this word Proviso maketh a condition Page 40 By a fine levyed a condition is not extinct much good matter Page 43 Common assurances construed favourably ib. Where another use may be averred upon a fine upon grant and render or another consideration then is expressed Page 44 When a request is necessary and in what cases ib. The remainder to the right Heires of the Conisor is a reversion Page 45 Where a Donee in taile shall hold of no body Page 46 A man wounded upon the Sea dyes upon the Land unpunishable ib. The Law respects the Originall Act Page 47 THE THIRD BOOKE WHere a Writ of Error or right of Action is given to the King by 28. H. 8. Page 49 A diversity betweene inheritances and Chattells personall Page 50 Neither an Action without a Right nor a right without an Action shall make Remitter ib. A reversion upon an estate taile is out of the Statute of 9. R. 2. c. 3. Page 51 Where a grant from the Q. ought to haue precise words ib. A render to the Wife onely voidable where shee is not party Page 52 The Husband onely vouched where it barreth the remainder Page 53 A recovery against Tenant for life and he in remainder in taile shall not bind the taile Page 54 A grant of a Copy-hold for life is within 31. H. 8. of Monasteries ib. Excellent Rules for interpretation of all Statutes ib. What Statutes extend to Copy-holders and what not ib. Whether West 2. c. 1. extends to Copy-holds Page 55 Where the rents shall be intended to be the old rents Page 56 If the particular estate may determine before the remainder can comence what is become of it ib. In VVills the intent of the Devisor must be considered Page 57 Paying in a VVill where it is a condition and where a limittation ib. VVhere Debt lyeth for rent before the last day of payment Page 58 Three sorts of privities Page 59 Lessee assigneth Bargainee of the reversion shall not have Debt against the Lessee but the Lessor might Page 60 An Executor of a Termor not liable to Debt after Assignement ib. The Lessor may charge the Lessee or his Assignee Page 61 VVhere an estate may be waved in pays at the common Law and where by the Statute of 27 H. 8. of Vses Page 61 62 Much notable Learning upon the Statutes of 32. 34. H. 8. of VVills and of Relations and what inheritances are devisable Page 63 64. c. VVhere the second delivery of a Deed shall relate to the former Page 67 The severall sorts of custodies and Gardians Page 68 VVho shall have the custody of the Heire apparent an infant Page 68 69 The Mother shall have the custody c. within 4 5. Phil. Mar. c. 8. Jure naturae Page 69 Equally to be divided in a VVill and their construction Page 70 Excellent Learning of discents and of Possessio fratris ib. The Sheriffe is not bound to bring a prisoner in Recta linâ—a Page 71 VVhat Act is an escape and how prevented by the Sheriffe ib. A lease for three lives by a fine where within 11. H. 7. c. 20. Page 72 VVhat person may take advantage by entry within that Act ib. A VVoman accepts a fine and renders back for 1000. yeares it is within that Statute Page 73 A prisoner taken againe in Recenti insecutione is in Execution againe Page 73 An Action will lye against the Sheriffe before he be retaken ib. And after he is taken he shall be in prison againe ib. After a demurrer there shall be no repleader Page 74 Issue Tenant in taile suffers a recovery the Mother releaseth with warranty this is not within 11. H. 7. Page 74 75 Otherwise if the Wife had released after the death of the issue Page 76 An estate transferred in the Post before the warranty discend Page 77 The Lessor having cause of entry but no notice accepts rent ib. The Lessor may have debt after a reentry Page 78 A Lease for yeares is not made good by acceptance if the condition be to be void othewise of a Lease for life ib. Acceptance and an acquittance barreth all former
arrerages Page 79 A rent must be paid without an acquittance but not an annuity ib. The Heire is infeoffed by collusion within age the Lord accepteth services he looseth the wardship ib. The Law adjudgeth an escape although the party be in prison Page 80 Vntill the prisoners be delivered to the Sheriffe they are in the custody of the old but if the old dye the new must take notice Page 81 If a prisoner breake Gaole in such Case before the new be made this is no escape for they are in custody of Law ib. A Translation by the K. of a priory into a Deane and Chapter is good by 25. H. 8. Page 82 Notwithstanding a surrender of their Church the Corporation remaineth ib. The Deane and Chapter are to assist the Bishop in two things ib. The Bishop is Patron of all Prebends of common right ib. Originally all Bishopricks were donative by the King ib. If by their surrender to the King the Corporation should be dissolved three inconveniences would follow Page 83 A fine levyed by covin by a Copy-holder barreth not the Lord Page 84 All acts mixt with fraud are tortious and illegall ib. The Judges have construed the Act against the Letter for Salvation of the inheritance of the reversioner Page 85 An averrment of fraud may be taken by 27. Eliz. and so upon 13. Eliz. an averrement may be against a fine upon an usurious contract Page 86 Six Markes of fraud within 13. Eliz. c. 5. Page 87 The Deed must be upon good consideration and Bona fide ib. Directions to make a Deed by one that is indebted unto others Page 87 88 A consideration of nature is not good within this Statute Page 88 Statutes against fraud shall be liberally expounded to suppresse it ib. None but a purchasor for money without fraud shall avoid a faudulent Deed Page 89 The issue in taile is barred after Proclamations made although he claime Page 90 Quod partes finis nihil habuerunt where it is a good plea Page 92 To what purposes the proclamations serve Page 93 Though the issue be beyond the Seas yet he is bound because privy c. ib. THE FOURTH BOOKE VVHere a right to a freehold cannot be barred by acceptance of a collaterall satisfaction Page 95 Wherefore those Branches touching jointures in 27. H. 8. were made Page 96 No estate a good jointure except it take effect presently after his death ib. An estate for life upon condition is a good jointure ib. Where a jointure may be waived ib. Where a dâ—vise to the Wife for life or in taile c. is a good jointure Page 97 Seisin of fealty is a seisin of all other services Page 98 No distresse excessive for homage fealty escuage c. ib. Seisin of a superior service is seisin of all inferior services incident ib. Doing of homage is a seisin of all services inferior and superior ib. Seisin of one annuall service is not seisin of another Page 98 99 Seisin in Law sufficient to make avowry within 32. H. 8. Page 99 To what services that act doth not extend ib. Writs of Escheate Cessavit and rescons are not within that act Page 100 If a distresse be and nothing arreare the tenant may rescue but he shall not have Trespasse Vi armis against the Lord ib. See the Booke at large where an incroachment is avoidable ib. If a man hath beene out of possession sixty yeares if his entry be not taken away he may enter and bring any possessory Action ib. Actions of Slaunder The Judges must take notice of all statutes which touch the King Page 101 Articles of the good behaviour exhibited against I. S. are no cause for him to bring an Action upon the Case Page 102 A Bill in the Starre-Chamber for Causes examinable there no cause of action otherwise if not examinable there Page 103 No action lyeth upon an appeale of Murder returnable in the Common Bench Page 103 To say to one that he is perjured an Action will lye Page 104 Sermo relatus ad personam intelligi debet de conditione personae Page 105 Two things requisite to have an Action for Slaunder Page 107 Where an Action will lye for Slaundering a mans Title Page 108 109 Verba accipienda sunt in mitiori sensu Page 110 Three things incidents to a Defamation in the Ecclesiasticall Court Page 111 Copy-hold Cases When custome hath created such inheritances their discent shall be according to the rules of Law but not to have collaterall qualities Page 112 The heire before admittance may take the profits and surrender ib. Admittance of a Copy-holder for life inureth to him in remainder but not to prejudice the Lord of his fine Page 114 The heire before admittance may have Trespas ib. One who hath no title maketh voluntary grants they bind not but otherwise it is of admittances upon surrenders or discents Page 116 Quid operatur by severance of the inheritance of the Copy-hold from the Mannor Page 116 117 A release to a disseisor of Copy-hold where it is good Page 118 A Copy-hold is within 32. H. 8. of maintainance and Champerty ib. Copy-holder for a yeare may maintaine an Ejectione firmae ib. Every Mannor comprehends in effect two severall Courts Page 119 The Lord may admit out of the Mannor but not the Steward ib. The Lord cannot exact unreasonable fines Page 121 If the Tenant deny to pay his fine it is a forfeiture Page 122 Sentence against the Wife shall bind the Husband De facto Page 123 A man may surrender to the use of his Wife Page 124 The Lord may retaine a Steward by Parol Page 125 What things are grantable by Copy Page 126 What acts are destructions of Copyholds Page 127 How a custome ought by a Copy-hold to be alleadged Page 128 What things are incident to the Office of Sheriffe Page 129 130 Touching Exposition of the Q grant and where a Non obstante aideth Page 131 What things may he appendant to others Page 132 The Originanall of Common appendant by the Common Law Page 133 That it is apportionable Page 134 See many excellent Cases of Appeales and Indictments and much good matter thereupon from Folio 135. to 143. Touching arrerages of rents and the remedy given for them by 32. H. 8. c. 37. Page 144 The Roll amended according to the speciall verdict Page 146 VVhere a condition or rent shall be suspended ib. The Jury must find matters of estoppell Page 147 An infant admitted by Gardian and no record made of it yet good Page 148 Debt upon a puisne judgement must be paid before Statutes c. ib. Marriage is a countermand of a VVill Page 149 Touching a Lease for life or yeares of Land whereon Trees are growing and what property the Lessee hath in them and of Timber Trees blowne downe with the wind and wast committed in VVindowes VVainscot c. Page 150 151 Touching a recognizance acknowledged before the Chamberlaine of London and of
Execution thereupon by Elegit Page 152 153 How long the Conisee shall hold the Land Page 153 Concerning Deeds inrolled and levying of fines of Land the Common Law preferred before the Statute Law the excellency and antiquity of Records Page 154 155 Rent must be demanded at the place limitted although out of the Land before advantage of a condition taken Page 155 Vpon a Lease by the Q it must be paid at the Exchequer ib. By vertue of a Fieri facias the Sheriffe may sell a Lease but the beginning and ending must be expressed Page 156 If the first benefice be of 8. l. per annum upon acceptance of another with cure the Patron must take notice upon 21. H. 8. c. 13. Page 157 Touching Corporations and their Elections and Ordinances ib. The effect of institution and also of induction and of Letters of dispensation Page 158 Touching Covenants and warranties in Law and when broken Page 159 Touching Strangers occupying Lands without notice of the Devisee Page 160 Goods delivered to one to keep or carry and they are purloyned Page 160 161 Estovers appendant to a house by grant or prescription and when destroyed and of suite to the Lords Milne Page 161 162 Touching reteining of Chaplaines by a Countesse within 21. H. 8. c. 13. Page 162 Of Contracts executory and Actions of the case upon Assumpsit and wager of Law Page 163 An ample and exact explanation of 1. E. 6. c. 14. of Chanteries Page 164 165 Touching reteining Chaplaines and dispensations Page 166 167 That the Lessee shall not alien without License and where a condition may be apportioned Page 167 Concerning Exchanges and what the word Excambium imports and of the warranty thereunto annexed and the nature of it Page 168 Arts done by a man Non compos mentis some binde himselfe and some others and how many sorts of them Page 169 THE FIFTH BOOKE A Lease to begin from henceforth and delivered after when it beginneth Page 171 What power the Bishop hath to make Leases by the private act of 1. Eliz. ib. A Lease of a Faire rendring rent is void by 1. Eliz. Page 172 What rent shall be said to be the true and ancient rent ib. Joint words taken severally in six respects Page 173 A Lease to A. during the life of B. and C. how long it lasteth ib. Therein is a difference betweene a limittation and condition Page 174 An Administrator hath judgement and dyes who shall sue execution thereupon ib. By what act an estate at will is determined ib. By exception of Wood the soile is excepted ib. Acceptance of a new Lease is a surrender of the first Page 175 If the Lessee of Lands may dig for Coles ib. A Lease to A. for his life and the life of B. and C. when it endeth ib. No Action of wast for permissive wast Page 176 Where there is a confidence an Action of the Case for negligence ib. Leases made to the Q. by Colledges Deanes c. are restrained by 13. Eliz Page 177 When a Covenant extends to a thing In esse of the demise it shall bind the Assignee otherwise when to a thing not in essence Page 178 If the thing to be done be meerly collaterall the assignee shall not be charged Page 178 Concessi or demisi import a Covenant Page 179 If any Covenantor breake the Covenant all the Covenantees must joine otherwise when severall interests passe Page 180 A diversity betweene a power and an authority ib. The Covenantee himselfe cannot devise the assurance ib. The Counsell must be given to the Purchasor Page 181 An Indenture void without a manuall act of indenting ib. Where a Condition or Covenant once broken may be salved after Page 181 A condition of two parts and both possible and one becometh impossible Page 182 An estate to be made at the costs of the Covenantee the Covenantor must doe the first act i. give notice what assurance he will have ib. The Seale of one Covenantor is broken it is void against him onely Page 182 183 A. is bound to give such a release as by the Judge of c A. must procure him Page 183 Terror of Suite is a damification upon a Counterbond ib. An action for reparations lyeth against the assignee Page 184 What interest is assignable over Page 185 Where an Indenture precedent to declare uses is only directory Page 186 Where an averment may be against a matter in writing Page 187 Cases of Executors Where a release by an Infant Executor is a barre Page 188 An Executor may release before probate but not have an action ib. A judgement for Debt shall be paid before a Statute Page 188 189 Administration during minority ceaseth at 17. yeares of age Page 189 Such an administration may not sell goods but for necessity ib. Where an administration is void and where voidable ib. Where an Executor of his owne wrong may retaine goods Page 190 An action against an Executor or by him where it must be in the Debet and where in the Detinet tantum ib. What retorne the Sheriffe must make upon a Devastavit Page 191 Administrator brings Debt barred because Executor ib. What act maketh a man Executor of his owne wrong ib. Constructions of the Statutes of Jeofails c. Amendment of Records Fines c. In Trespasse the nature of the Fishes must be shewed Page 192 Where a Debt against Baron Feme must be in the Debet Page 193 An ejectment of Lands out of A. B. and C. tried by a visne out of A. onely it is insufficient ib. 23. Jurors are returned and 12. appeare and find for the Plaintiffe it is good ib. Variance betweene the Writ and Count is not aided by 18. Eliz. ib. Five parts of a fine and where the Conisor may assigne Error Page 194 A common recovery not like other assurances more favoured Page 195 A pannell is annexed to the Venire facias without returne not good ib. A difference where a man is misnamed in the Venire and where in the pannell Page 196 Issue joined upon a point not materiall aided by the Statute ib. An amendment good after the transcript removed Page 196 197 Error in the Originall matter of Substance Page 197 A writ of Covenant upon a fine dated after the returne is there amendable but not in other actions ib. A common recovery taken by intendment Page 197 198 Cases of Pardons When a Writ shall be said to be depending Page 198 VVhere an Amerciament is pardoned the Statutes of Jeofailes extend to VVALES Page 199 Debts to the Q are excepted but not Originally due to the Subject ib. VVhere the K. may pardon corporall punishment Page 200 The K. may pardon the Suite in the Court Christian but not costs ib. An Office of intitling but not of Instruction may be under the great Seale Page 201 VVhere the rents are severall and where joint and where the Patentee of part may take advantage of a condition Page 202 A
grant after Office and before the retorne is good ib. The Bishop must shew the cause of refusing a Clerke Page 203 The Constable may bring an Offendor to what Justice he will ib. Vpon refusall to find surety the Constable may commit him ib. Where a man shall avoid a fraudulent deed by 27. Eliz. Page 204 The Defendant pleads another Action depending for the same Page 205 Cases of by-By-laws Where the Inhabitants of a Towne may make By-laws and where the consent of the greater part shall bind all ib. Who are liable towards the repaires of a Church Page 207 Against a devise of Lands by writing no averrment can be received Page 208 Cases of Usury What manner of contract is Vsury Page 208 209 A demurrer is a confession of all matters in fact well pleaded Page 208 What things may be released before the day Page 209 Daggs Pistolls c. are within the Statute of 33. H. 8. c. 6. ib. The Sheriffe or his officers may carry Weapons invasive or defensive ib. One man cannot have an Action for a common nusance Page 210 If an Orphan sue for goods in the Court Christian a prohibition lyeth ib. A Deed shewed in Court remaineth there all that Terme Page 211 In the K. B. imparlances in barre are entered but not to reply ib. The Wife Tenant for life dyes the Baron is not liable for wast ib. When amends may be tendered after a distresse but not after impounding tender to the Bailiffe is not good Page 212 The Plaintiffe may pray a Deed to be entered In haec verba the same Tearme but not after ib. An action of wast lies after the death of him in remainder for life ib. Every assignee of every Lessee mediate or immediate is within 11. H. 6. c. 5. Page 213 An award must be certaine and binds none but parties Page 214 A prescription for common where it is good ib. Where a warrāty comenceth by disseissin Page 214 215 A confirmation of the Land and of the terme a diversity Page 215 Cases of Customes Where a custome binds Strangers Page 216 Where property is altered by sale in a Market Overt ib. A custome which addeth more solemnity to the Law is good ib. Who shall have the Corne upon the ground Page 216 217 Where judgement finall shall be given in Wales Page 217 Cases of Executions One in execution escapeth yet the other is liable Page 218 VVhere the Defendant is in Execution for the King he shall be also for the Plaintiffe Page 219 If a Man be in custody and another VVrit commeth to the Sheriffe he is in custody of force of the second VVrit also Page 220 A judiciall VVrit needs no returne but not so of an Elegit ib. VVhere restitution shall be after reversall of Outlarly or judgement Page 221 VVhere the Sheriffe may breake the House to make Execution Page 222 That a House is not a defence of Strangers ib. A false consideration is void as to the Queene Page 223 224 The Law findeth not an assignee in Law where one in Fact Page 224 Foure bring a Quare impedit and one releaseth it barreth onely him ib. After a Divorce issue by the second Husband legitimate Page 225 False evidence to the Grand Inquest is not within 5 Eliz. ib. Commissioners of Sewers must tax all who are in danger ib. A Quod permittat for a Nusance where it lyeth without request Page 226 227 And where against a Feoffee or assignee Page 227 Two have Title to present by turne one presents I. S. who is deprived or Merè laicus it is a turne not if the admission be void ib. Vterque taken sometimes discretive sometimes collective Page 228 The Plaintiffe cannot refuse to joine in demurrer but the King may ib. A man cannot have an Action for damage by Coines ib. None may erect a Dovehouse but the Lord of a Mannor ib. Ancient demesne is a good plea in Ejectione sirmae not in Trespasse Page 229 Excellent diversity of Learning touching Wrecke ib. When the high Admirall shall have jurisdiction Page 230 Plentifull matter touching goods wayved goods of Fellons Deodands c. Page 231 What things may be gained by usage without matter of Record ib. Rendring rent to one and his heires and to one or his heires is all one Page 232 The King by his Proclamation may make forreigne Coine currant ib. A Tender of money in bagges is a good tender Page 233 In a writ of Estrepement the Sheriffe may take posse com ib. Estrepement lyeth in wast as well before judgment as after ib. Feme Copiholder durante viduitate soweth the Lord shall have it ib. Payment of parcell before the day is satisfaction for all Page 234 Grantee of a remainder liable for arreares of a rent charge ib. Debt against one joint obligor hee cannot plead Non est factum Page 235 But hee may if the deed become void by matter Ex-post facto ib. In Indictments certainty to a certaine in generall is good ib. False Latine shall not quash an Indictment ib. In Indictments of death Percussit must be except in case of poisoning Page 236 A lense for yeares is an interest within 4 H. 7. c. 25. ib. A libell may be as well against a private man as a Magistrate ib. Non refert whether it be true or the party of good fame ib. If a man finde a Libell advise how to to preserve himselfe Page 237 Gardian in chivalrie shall have the single value of the marriage without Tender ib. The great Case De jure regis Ecclesiastico upon the Statutes of 1 Eliz. c. 1. p. 2. Touching a Deprivation by the Bishop and the Kings supremacy in Causes Ecclesiasticall Page 237 238 THE SIXTH BOOKE VVHere services shall be multiplyed apportioned or extinct Page 239 Where the parole shall demurre for nonage of the demandant and where the Tenant shall have his age much good learning Page 240 The King grants the tenancy by attainder the mesnalty is revived Page 241 The K. grants land Tenendum by a rose pro omnibus c. what Tenure Page 242 Resolutions and Diversities when a barre in one action shall be a barre in another ib. Where a Writt shall be brought by Journeyes accounts Page 243 Who are Judges in Inferiour Courts Page 244 Jointenants cannot make partition by words after 28. H. 8. c. 1. ib. A Parson deprived for Adultery which is pardoned he is restored Page 245 A Visne must be from the most certain place ib. Tenant for life and hee in remainder joyne in a lease how it inureth Page 246 Riens passa tryed where the land is not where the patent dated ib. A devise to his brother paying 20. s. he hath fee ib. A devise to Baron and Feme and their children what estate it is Page 247 Where the will is directory and where declaratory without reference to power ib. A diversity betweene a suite by Citation and an Appeale Page 248 If a Statute speaks
The question was whether they have an estate for life or an inheritance in taile And it was resolved that if they had children at the time of the Demise made then they had but an estate for life But if they had no children then they had an estate of inheritance in taile Sir Edward Cleeres case 42. Eliz. fol. 17. A Man is seized of three acres of Land houlden in Capite and maketh a Feoffment in Fee of two of them to the use of his wife for her life and after maketh a feoffment by Deed of the third acre to the use of such persons and of such estate and estates as he should limitt and appoint by his last Will in writing And afterwards by his last Will in writing hee Devised the said third acre to one in fee and if this Devise was good for all the third acre or not or for two parts thereof or voyd for all was the question And it was adjudged that the Devise was good For the Feoffor by his last Will limitted the estates according to his power reserved to him upon the Feoffment the estates should take effect by force of the Feoffment and the use is directed by the Will So as in this case the Will is onely directory But if he declared his Will by writing without any reference to his authoritie or power as owner of the Land and to limitt no use according to his power In this case the Land being houlden in capite the Devise is good for two parts and voyd for the third part If a man make a Feoffment in Fee of Lands in capite to the use of his last Will although he Devise the Land with reference to the Feoffment yet the Will is voyd for a third part for a Feoffment to the use of his last Will and to the use of him and his heires is all one In this case when the partie had conveyed two parts to the use of his wife by his act executed hee cannot as owner of the Land Devise any part of the residue by his Will and therefore because he hath not an election as in the case put before whether to limit according to his power or Devise the same as owner of the Land for in the case at Barre as owner of the Land having conveyed two parts to the use of his wife he cannot make any Devise The Devise of necessitie must inure to a limitation of the use otherwise the Devise should be altogether voyd Packmans case 37. Eliz. Banco Regis fol. 18. WIlson brought an action upon the case upon a trover against Packman The case was thus A man dyed intestate and the Ordinary committed the administration to a stranger and after the next of kindred of the Decedent sued out a Citatiō in the Court Christian to have it repealed and pendente lite the administrator to defeate the plaintiffe selleth the goods of the decedent to the defendant and after the Letters of administration were revoked by sentence and the first sentence anulled and made voyd and the administration granted to the plaintiffe And it was resolved that the action did not lie and in this case the diversitie was houlden betweene a suite by Citation for to countermand or revoke the former administration and an appeale which is alwayes a reversing of a former sentence for an appeale doth suspend the former sentence otherwise of a Citation And in this case because the first administrator had the absolute propertie of the goods in him without question he may sell them to whom he will and although the administration be revoked afterwards yet that cannot defeat the Sale But if the sale or gift be by covine it is voyd against Creditors by the Statute of 13. El. but it is good against a second administrator And if an administrator wast the goods and afterwards the administration is granted to another yet every debtor shall charge him in debt An administration may be granted upon condition and whatsoever the administrator doth before the condition broken is good Gregories case 38. El. Banco Regis fol. 20. VErba aequivoca in dubio posita intelliguntur in digniori potentiori sensu secundum excellentiam as if the speech be or writing of J. S. generally it shall be intended of the father where the father and sonne are both of a name and if it be of two Brothers both of a name it shall be intended of the eldest for these are more worthy so where the Statute of 4. 5. Phil. Ma. speaketh in any Court of Record it shall be intended of the foure Courts at Westminster because the Kings Attorney is attendant there Michelbornes case 38. Eliz. Banco Regis fol. 21. THe Court of Marshalsea doth onely hould plea of actions of trespasse within the verge if the one of the parties be of the Kings houshold and in contracts and Covenants where both parties are of the Kings houshold and of none other actions nor persons by the Act of Articuli super Chartas 28. E. 1. Butler Goodalls case 40. El. Banco Regis fol. 21 IT was resolved upon the Statute of 21. H. 8. that a Parson of a Church ought to stay and be Commorant upon his Rectorie viz. upon the Parsonage-house and not in any other house although it be within the Parish but lawfull imprisonment without covine is a good excuse of non-residence also if there be no Parsonage-house for impotentia excusat Legem also sicknesse without fraud if the patient remove by advice of his Councell in Physicke bona fide for better aire and recovery of his health Ambrosia Gorges case 40. El. fol. 22. in Cur. Wardorum IT was resolved that the Father shall have the Wardship of his Daughter and heire apparent so long as shee continueth his heire apparent But when the Father hath issue a sonne then shee shall be in ward to the Queene for then he is heire apparant and not the Daughter Ambrosia was daughter of Sir Arthur Gorge by Douglas Daughter and heire of Vicount Bindon and was married to Francis Gorge which Francis dyed when Ambrosia was of ten yeares of age It was resolved also that the Queene notwithstanding the said marriage should have the Wardship of the said Ambrosia for it was not a compleat marriage because to every marriage there ought to be a consent For consensus non concubitus facis matrimonium consentire non possunt ante annos nubiles And upon conference had with the Civilians it was agreed after such a marriage if the husband and the wife marry again it shall not be counted Bigamie And 30. E. 1. tit Gard. 156. if the ancestor marry his heire infra annos nubiles and dye the Lord shall recover the body of the Infant because the heire may disagree It was agreed that the grandfather shall not have the wardship of the sonne within age the father being dead in his life time Marquesse of Winchester his case 41. Eliz. fol. 23.
manner of inheritances grantable in him Page 298 VVhen the Kings Charter shall be taken to two intents good how it shall be expounded ib. A Retraxit must be in proper person and where one may appeare by Attorney Page 299 No writ of Errour lyeth after disclaimer it doth after Retraxit ib. The copiholder commeth in by custome paramount Page 300 Where seisin of a rent needeth not to be alleadged within forty yeares ib. If the Jury try an Issue they shall not try it again by new nisi prius Page 301 Where de Injuria sua propria is a good plea and where not Page 301 302 Who may certifie excommunication and when it rightly done ib. VVhen a power to make leases for 21. yeares or 3. lives rendring the ancient rent is well pursued Page 303 Baron and Feme tenants in speciall taile she is within 32. H. 8. c. 28. Page 304 To what things a condition of accruer may be annexed Page 305 Foure things requisite to an accruer ib. By purchase of part of the land in which c. common appurtenant destroyed Page 306 An authority is countermandable but then the bond is forfeited Page 307 A devise of rent out of all the Capite land is good out of 2. parts ib. VVhere one formedome lyeth upon two distinct gifts Page 308 In actions reall founded upon tort one writ lyeth upon severall Titles ib. In personall actions one may comprehend severall torts ib. The demaundant must make himselfe heire to the party last seized Page 309 A disturbance by parol is no breach of a condition Page 310 VVhere the Plaintiffe shall have judgement although his title destroyed ib. VVhat words with consideration amount to a bargaine and sale ib. An Inrollment not necessary where a chattell only passeth Page 311 VVhere a will inureth by way of executory devise ib. A man may devise an estate which he cannot doe by act executed ib. What shall be said a good awarde Page 312 Where the heire of a copy-holder beyond the seas shall be barred c. ib. Mulier prisne over the seas barred by the death of bastard eigne Page 313 What manner of services multiplyed and what extinct ib. Herriot custome by purchase of part is not extinct Page 314 What power the Censors of Physicians Colledge have ib. Where a count may be made good by the barre and that by Replication Page 316 Many things good by custome which cannot be by Charter ib. The improvement shall be employed to the former charitable uses Page 317 Nothing accompted administred but the money paid by Composition Page 318 Where the plaintiffe shall have judgement the Replication being evill ib. Fully administred pleaded the Jury find assetâ—s for part what judgement ib. The force of a Repeale and where the ordinary may commit administration Page 319 A difference where obligor is made administrator and where executor ib. A commoner in a forrest where he may enclose within the stat of 22. E. 4. c. 7. ib. If A. be in execution upon an erroneous judgement and escape and the judgement is reversed the action against the Sheriffe is gone Page 320 But if judgement and execution be against the Sheriffe before that it shall stand good against him ib. Tenant for yeares grants the next avoidance and surrenders how it worketh Page 321 Where a man abusing his License hee shall be Trespasser ab initio ib. Tender of sufficient amends for damage feasant when good Page 322 What is barred by a Release of diâ—…ctions Quarrells Suites c. ib. What Errors in a Record are amendable much good matter Page 324 325 See there ten Misprisions not yet remedied Page 326 Cases in the Court of Wards Where Collusion may be averred to defraud the King of Wardship ib. The King shall have no wardship where there is no heire Page 327 Where a Patent shall he good Quacunque via data ib. If the first Melius inquirendum be good no other shall issue Page 328 To what severall times an Office shall have relation ib. A sale of Chattells after judgement Bona is good not after Execution Page 329 A Bargaine and Sale by the heire after livery tendered is good ib. The Heire Knighted in the Life of the Father who dyeth the Heire tenders livery the mean rates are saved ib. Where the King shall have his third part out of the whole Page 330 THE NINTH BOOKE WHere a subsequent Indenture may direct uses in a precedent recovery Page 331 Where an averrment of other uses may be made ib. A common essoyne is allowable in Dower Page 332 In a Writ of Dower who may plead deteinment of Chartars Page 333 The Beasts of the Termor are distreined and an avowry made upon a meere Stranger what remedy for the Termor Page 334 No distresse for damage feasant if the Cattell be chased out ib. What ancient Franchises ought to have allowance Page 335 What priviledges are extinct if they returne to the Crowne ib. Where the Tenure and where the seisin is traversable Page 336 A difference when one Executor refuseth and when all doe Page 337 They can bring no actions before probate Page 338 What power the Ordinary hath over the goods of the intestate ib. See 21. H. 8. c. 5. touching granting administrations Page 339 The grant of the Stewardship of the Mannor of D. good without naming the County where it lyeth ib. Where such a Grantee may make a Deputy without expresse power Page 339 Where Non user is a forfeiture of an Office Page 340 What Writs Vi armis are good Causa causans and Causa causata ib. What words amount to a Release Page 341 If it appeare that the Nusans is to the damage of the Plaintiffe he needs not shew it he may abate the Nusans if he will ib. Westm 2. c. 24. extends not to the Alienee of the alienee ib. How conspirators may be punished before acquitall Page 342 Conspiracies punishable before Execution must have foure incidents ib. What Act shall be said to be a Nusans as a Lime-pit c. Page 343 What things requisite to convict a man of Libelling ib. A man needs not to shew that which lyeth not properly in his notice Page 344 Much noteable matter touching Indictments and a Serjeants duty Page 344 c. Commissioners to examine witnesses are not bound strictly to the Letter Page 346 What the duty of a Commissioner is and how he must demeane himselfe Page 347 Whither a Feme Covert be within the Sâ—… of Westm 2. c. 35. ib. What Marriage is within that Statute Page 348 A surrender made by a Copy-holder by Letter of Attorney is good ib. What authorities may be Executed by Attorney ib. VVhere the Act must be done in the name of the authorizor Page 349 VVhere an accord is a good plea and what is requisite thereunto Page 349 350 VVhat Act shall be adjudged murder Ex eventu Page 351 VVhere an Attornement shall bind an Infant ib. An action of the Case