that it shall be then holden as if no Adjournment had been the Essâ—ines had been the first day of Tres Trin. and the full Term had not been untill the fourth day which was the last day of the Term quod nota and so it was of the Adjournment which hapned first at Westminster and afterwards at Hertford from Michaelmas Term now last past Michaelmas Term 35 and 36 Eliz. Gravenor versus Brook and others 1. IN an Ejectione firmae by Edward Gravenor Plaintiff against Richard Brook and others Defendants the case appeared to be this Henry Hall was seised in his Demesne as of Fee according to the custom of the Mannor of A. in the County of D. of certain customary Tenements holden of the said Mannor called Fairchildes and Preachers c. In the third year of Henry the 8th before which time the customary Tenements of the said Mannor had alwaies been used to be granted by Copy of Court Roll of the said Mannor in Fee-simple or for life or years but never in Fee-tail but then the said Henry Hall surrendred his said Copy-hold Land to the use of Joane his eldest Daughter for her life the remainder to John Gravenor the eldest Son of the said Joane and to the Heirs of his body the Remainder to Henry Gravenor her other Son and the Heirs of his body the Remainder to the right Heirs of the said Henry Hall for ever wherupon in 3 H. 8. at the Court then there holden a grant was made by Copy of Court Roll accordingly and Seisin given to the said Joane by the Lord accordingly Henry Hall died having Issue the said Joane and one Elizabeth and at the Court holden within the said Mannor 4 H. 8. the death of the said Henry Hall was presented by the Homage and that the said Daughters were his Heirs and that the Surrender made as before was void because it was not used within the said Mannor to make Surrenders of Estates tails and therupon the said Homage made division of the said Land and limited Fairchilds for the purparty of the said Joane and Preachers for the purparty of the said Elizabeth and Seisin was granted to them accordingly Elizabeth died seised of her said part after which 33 H. 8. Margaret her Daughter was found Heir to her and admitted Tenant to this part after which Joane dyed seised of the said Tenements as the Law will And after the said Margaret takes to Husband one John Adye who with his said wife surrendred his said part to the use of the said John Adye and of his said wife and of their Heirs and afterwards the said Margaret died without Issue and the said John Adye held the part of his said wife and surrendred it to the use of the said Richard Brook and of one John North and their Heirs who were admitted accordingly after which the said John Gravenor died without Issue and now the said Henry Gravenor was sole Heirs to him and also to the said Henry Hall who had Issue Edward Gravenor and dyed the said Edward entred into the said Lands called Preachers and did let it to the Plaintiff upon whom the said Richard Brook and the other Defendants did re-enter and eject him And all this appeareth upon a speciall Verdict And by Clench and Gawdy an Estate tail cannot be of Copyhold Land unlesse it be in case where it hath been used for the Statute of Donis conditionalibus shall not enure to such customary Lands but to Lands which are at common Law and therfore an Estate tail cannot be of these customary Lands but in case where it hath been used time out of mind and they said that so it hath been lately taken in the Common Bench But they said that the first remainder limited to the said John Gravenor here upon the death of the said John was a good Fee-simple conditional which is well warrantes by the custom to demise in Fee for that which by custom may be demised of an Estate in Fee absolute may also be demised of a Fee-simple conditionall or upon any other limitation as if I. S. hath so long Issue of his body and the like but in such a case no Remainder can be limited over for one Fee cannot remain over upon another and therfore the Remainder to the said Henry was void But they said that for all the life of the said John Gravenor nothing was in the said Elizabeth which could descend from her to the said Margaret her Daughter or that might be surrendred by the said Margaret and her Husband and therfore the said Margaret dying without Issue in the life time of the said John Gravenor who had the Fee-simple conditionall nothing was done which might hinder the said Edward Son to the said Henry Gravenor of his Entry and therfore the said Plaintiff ought to have his Iudgment to recover for they took no regard to that which the Homage did 4th year of Hen. 8. But Fennor and Popham held that an Estate tail is wrought out of Copy-hold Land by the equity of the Statute of Donis conditionalibus for otherwise it cannot be that there can be any Estate tail of Copyhold Land for by usage it cannot be maintained because that no Estate tail was known in Law before this Statute but all were Fee-simple and after this Statute it cannot be by usage because this is within the time of limitation after which an usage cannot make a prescription as appeareth 22 23 Eliz. in Dyer And by 8 Eliz. a Custom cannot be made after Westm 2. And what Estates are of Copyhold land appeareth expresly by Littleton in his Chapter of Tenant by Copyhold c. And in Brook Title Tenant by Copyhold c. 15 H. 8. In both which it appeareth that a Plaint lyeth in Copyhold Land in the nature of a Formedon in the Descender at common Law and this could not be before the Statute of Donis conditionalibus for such Land because that before that Statute there was not any Formedon in the Descender at common Law and therfore the Statute helps them for their remedy for intailed Land which is customary by equity Add if the Action shall be given by equity for this Land why shall not the Statute by the same equity work to make an Estate intail also of this nature of the Land We see no reason to the contrary and if a man will well mark the words of the Statute of Westm 2. cap. 1. he shall well perceive that the Formedon in Descender was not before this Statute which wills that in a new case a new remedy may be given and therupon sets the form of a Formedon in Descender But as to the Formedon in the Reverter it is then said that it is used enough in Chancery and by Fitzherbert in his Natura brevium the Formedon in the Descender is founded upon this Statute and was not at Common Law before And the reason is because these Copyholds are now become by usage to be
same time nothing works by the Livery for the reason before given by Jones For the matter of Law he conceived that the unity of possession doth not extinguish the Water-course and that for two reasons 1. For the necessity of the thing 2. From the nature of the thing being a Water-course which is a thing running 1 For the necessity and this is the reason that common appendant by the unity of possession shall not be extinguished for it is appendant to ancient Land-hide and gain arable Land which is necessary for the preservation of the Common-wealth and as in this case there is a necessity of bread so in our case there is a necessity of water And for the case of a way Distinguendum est for if it be a way which is only for easement it is extinguished by unity of possession but if it be a way of necessity as a way to Market or Church there it is not extinguished by unity of possession and accordingly was the opinion of Popham chief Iustice which I take for good Law and the case of 11 H. 7. 25. is a notable case and there a reason is given why a Gutter is not extinguished by unity of possession because it is matter of necessity 2. From the nature of water which naturally descends it is alwais current Et aut invenit aut facit viam and shall such a thing be extinguished which hath its being from the Creation Co. lib. 4. Luttrels case a Mill is a necessary thing and if I purchase the Land upon which the streams goes which runs to this Mill and afterwards I alien the Mill the Water-course remains So if a man hath a Dye-house and there is a water running to it and afterwards he purchase the Land upon which the water is current and sell it yet he shall have the Water-course Dyer Dame Browns case and the principall case in Luttrels case a Fulling-mill made a Water-mill this shall not alter the nature of the Mill but yet it remains a Mill so the water hath its course notwithstanding the unity and he concluded for the Plaintiff Crew chief Iustice I agree that the Declaration is good and also that the Bar is good for the manner but for the matter in Law I conceive that it is not good In our Law every case hath its stand or fall from a particular reason or circumstance For a Warren and Tithes they are not extinguished by unity because they are things collaterall to the Land And for the case of 13 Eliz. in Dyer of an Inclosure I conceive that by the unity the Inclosure is destroyed for the Prescription was interrupted and in Day and Drakes case 3 Jac. in this Court it was adjudged that in the same case the Prescription was gone It may be resembled to the case of Homage Ancestrell 57 E. 3. Fitzherbert Nusans And for our case it is not like to the cases of Common or a Way because the Water-course is a thing naturall and therfore by unity it shal not be discharged also there is a linement out of which every man shall have a benefit and therfore he concluded that Iudgment should be given for the Plaintiff And Iudgment was commanded to be entred for the Plaintiff The same Term in the same Court. Welden versus Vesey AN action of Debt was brought by Welden Sheriff of the City of Coventry against Vesey upon the Statute of 29 Eliz. cap. 4. and declares that it is provided by this Statute that no Sheriff or Minister c. shall take for an execution if the summ doth not exceed 100 l. but 12 d. for every 20 s. and being above the summ of 100 l. 6 d. for every 20 s. and shews that wheras the said Vesey had judgment against one in an action of Debt that the Plaintiff by virtue of a Capias directed to him took the body of the said person condemned and that it was delivered to the Plaintiff and that he for levying of the money had brought this action The Defendant by way of Bar saith that it is provided by this act that it shall not extend to Executions in Towns Corporate and that this was within Coventry and so demurred upon the Declaration And Whitwick argued for the Plaintiff two things are considerable in this case 1. Whether where the summ exceeds 100 l. the Sheriff shall have 12 d. for every 20 s. of the 100 l. and 6 d. for that which is over or 6 d. only for every 20 s. for all the summ 2. Whether this Statute extend to Iudgments in Towns Corporate For the first the letter of the Statute is cleer that he shall have 12 d. for the first 100 l. and 6 d. for the residue for the Statute is that if it be above 100 l. Whether a Sheriff or c. shall have 12 d. in the pound for the first 100 l. and 6 d. for the rest upon an Execution that he shall have but 6 d. therfore if it be under a 100 l. he shall have 12 d. for every 20 s. And the meaning of the Statute is plain also for otherwise the Sheriff shall have a lesser Fee where it is above a 100 l. as where it is a 199 l. then he shall have for 100 l. but this was not the intent of the Statute but the greater the Execution the greater the Fee It was adjudged in one Gores case 10 Jac. that an action of Debt lies upon this Law Pasch 14 Jac. Rot. 351. Brole and Tumblerson Sheriffs of the City of London brought Dabt against Nathanael Michell for execution of 400 l. for 12 l. 10 s. scil 5 l. for the first 100 l. and 6 d. for every 20 1. after But I confesse that the principall question there was whether an action of Debt lies for the money and it was resolved that it did and Iudgment was given for the Plaintiff 2. To the Proviso that this doth not extend to Fees in a Town Corporate whether this extend to executions which go out of Iudgments in this Court or in the Common Pleas into Towns Corporate The Statute shews that before that time the Sheriff had taken great Fees which the Parliament considering restrained them to a certainty The words of the Proviso are generall Provided that this Act shall not extend to any Fees to be taken for any Execution within any City or Town Corporate and although the words be generall yet the exposition shall be according to reason as it is said in Fulmerston and Stewards case in Plow Expesition shal be made against the words if the words be against reason 5 H. 7. 7 38 H. 3. Broo. Livery 6. The King shall have primer Seisen of all Lands of his Tenant which he holds of him in Capite but if one holds of the King in Capite in Socage he shall pay no primer Seisen to the King and this Statute shall have this intendment that this Proviso shall extend only to Executions upon Iudgments
remain good and of force against the Patentee and also to say that the Lease might have its continuance after that it is determined by the Limitation comprehended in the Writing by reason of a reservation is also too absurd for so it may be said that if the Queen make a Lease for years if J. S. shall live so long rendring rent that this Lease may have continuance after the death of J. S. which cleerly is not Law And the Patentee here shall take the advantage to avoid the Lease hapned before his Patent made because that no Office need to be found of the not payment before it passed from the Queen to make it voyd and the reason is because this Proviso as it is penned is a meer Limitation of the Estate and not any manner of Condition And therfore if the Queen make a Lease for 100. years if the Lessee shall so long lawfully pay the Rent reserved at the day of payment if he fail of payment of the Rent reserved at the day limited the Lease is ipso facto determined and it need not be found by Office And what diversity is there where the Limitation is conjoyned to the estate it self and where it cometh in by a Proviso afterwards all being in one and the same Deed and therfore spoken at one and the same time for the one and the other case manifesteth that the contract and agreement is that the Lease shall not continue longer then the default of the payment of the Rent And in this case suppose that the Queen had granted over the Land shall not the Patentee have advantage to avoid the Lease because that no Office was found before It is cleer that he shall or otherwise this is now become to be an absolute Lease for a hundred years which is not Law for it is meerly contrary to the Contract and therfore absurd to be maintained I agree with the generall rule that nothing shal passe to or from the Queen but by matter of Record but this makes nothing against me in this case for here the same Record which passeth the Estate to the party to wit the Patent of the Lease contains the time how long it shall endure longer then which it cannot continue And therfore by 9 H. 7. If the King makes a Gift in tail and the Donce dies without Issue the Land is in the King without Office so in every other case where the Estate is determined according to the limitation for he cannot be put out of possession wrongfully and now hath right to hold it against him And I say that no warrant or authority can be found throughout the whole Law where a Lease or Estate made by the King is determined by an expresse limitation comprised in the Patent it self of the Grant that there need not any Office or other thing to determine it for that which is comprised in the same Patent may determine it of it self And further wheras the Proviso is that the re-entry shall be for default of payment of the Rent and the like there the Term continues untill the re-entry be made notwithstanding the Condition be broken as appeareth by all the Iustices 28 H. 8. because it is expresly limited that it shall be defeated by the re-entry there before re-entry be made the Action of Wast shall be quod tenet And by 12 H. 7. where a common person is put to his Entry there the Queen is put to an Office with which agrees Stamford in his Book of Prerogative But in this case if it were between common persons the Lease shall be determined upon default of payment of the Rent and before any re-entry and therfore in the Queens case it shall be determined without Office But if the case had been that if the Rent had been arrear and not paid that then upon re-entry made it ought to cease there an Office had been necessary to countervail the Entry in case of the Queen or otherwise the Lease shall not cease because the Queen cannot make an Entry but by such means and therfore it ought to be by matter comprised in the Patent It hath been said that this shall be a conditionall Limitation and that therfore an Office is necessary but I say that here is not any matter or quality of a Condition but meerly of a Limitation and t is rather a contingent Limitation then any manner of Condition and this is well proued by 11 H. 7. which is that the Grantee of a Reversion shal take advantage of it at common Law the which he cannot do if it savour any way of a Condition and by 27 H. 8. a Proviso in a Deed ought alwaies to be expounded according to the purport because that it is placed in a Deed somtimes for a Condition as where a Proviso is that the Lessee shall not alien somtimes for an exception as where a Proviso is that the Lease shall not extend to such an acre or such a thing somtimes for a Limitation as here and in the like cases And in this case the release of the Rent shall make it that the Lease shall never be determined for the not payment of it because thaâ—â—â—terwards there cannot be any such default of payment and therfore in such a case the Limitation remaineth absolute and discharged of the contingent which otherwise had determined it As if a man make a Lease for a 100. years if the Lessee in the mean time do not cut such a Tree a release of all Conditions will not serve yet if the Lessor himself or any other but the Lessee cut it the Lease is become absolute for a 100. years And so upon this point my conceit appeareth But the most colourable thing which hath been alledged on the other side was by my Brother Drew which was that in counting upon an Ejectione firmae and pleading in such a Lease as here it shall be as an absolute Lease for the years comprised in the Habendum without making any mention of the Prouiso upon which he enforced it that it shall be taken to be of more efficacy then if it stood meerly upon the Contingent for he said that upon a Lease made for years if the Lessee shall so long live and the like in the count and also in the pleading mention ought to be made of the life of the Lessee I agree it to be true that the pleading shall be so for in count counting and in plea pleading if the matter of the Contingent procede the Limitation or be anncred to the Limitation there a man ought to speak to the Contingent or otherwise it is not good as by 14 H. 8. it shall be of a Condition where it is precedent But in case of a Condition it is quite otherwise for if â— man make a Lease to another for years Si tamdiu vixerit or Dummodo solverit c. or the like which are annexed to the limitation of the Estate in all these cases in counting
l. at such a day without saying how or in what manner these Debts accrued or when because the Action is nor meerly founded upon the Debt but upon the promise and the Debts are but inducements to it But if it were to recover the Debts themselves in an Action of Debt there ought to be made a certainty therof to wit when and how it comes And further here in as much as the Assumpsit is found for the Plaintiff it shall be implyed that the consideration was duly performed for without due proof of the consideration the Plaintiff hath failed of his assumption and therfore also it shall be now taken that the Testator hath such a term of years in reversion to which the term for years in possession may be surrendred for he said that he who hath ten years in possession may well surrender to him who hath more years as twenty in reversion for the lesser may surrender to the greater term To all which Popham and Fennor agreed And Popham said further although it shall be taken most strongly against Hughes to wit that Robotham had a lesser term in the reversion then Hughes had in the possession yet the surrender shall be good for in Law it is greater and more beneficiall for him to have a lesser term to be a term in possession then to have it to be in reversion â—â—nd by him if a Lessee for twenty years make a Lease for ten years then he wâ—ich makes the Lease for ten years hath a reversion upon these ten years so that if Rent be reserved upon it he may distrain for it and have Fealty of the Termor And if he grant the Reversion over for ten years with attornment of the Termor in possession the Grantee hath the Reversion and shall have the Rent for the time and yet the Remainder for years remains alwaies to the Grantor and therfore before the Reversion granted ever the Termor for ten years in possession might have surrendred to his Lessor and therby the said Lessor shall have so many of the said years which were then to come of his former term of twenty years And after the Reversion granted he which hath the ten years may surrender to the Grantee of ten years in Reversion and there he shall have so many years in possession which were to come of his Reversion Quod nota bene And if he had had a lesser term in the Reversiâ—n then the Lessâ—r himself had in the Possession it shall go to the benefit of the first Termor for twenty years who was his Grantor for the Term in possession is quite gone and drowned in the Reversion to the benefit of those who have the Râ—version therupon having regard to their Estate in the Reversion and not otherwise to all which Fennor agreed wherupon Gawdy gave the rule that Iudgment shall be entred for the Plaintiff But Popham said that if the consideration for the surrender had not been sufficiently alledged that the Plaintiff shâ—uld not be helped by the other consideration of 100. marks given by Thornel for if such an Assumption as this is be founded upon two more considerations and such which by possibility may be performed then the party hath failed of his Suit As if a man in consideration of 5 s. paid and of other 5 s. to be paid at a day to come assume to do a thing or to pay money if the one 5 s. be not paid or if it be not averred that the other 5 s. was paid at the day limited for the payment of it the party hath failed in his assumption in the one case and the declaration is insufficient in the other case for he hath made a departure from his consideration But if one of the considerations be impossible or against Law there the other considerations which are possible or stand with the Law suffice if they he well alledged And he said that the Executor shall be charged with the contract of the Testator by common course of the Court which stands upon reason for if an Action of Debt upon a bare contract be brought against an Executor if he do not demur upon it but plead to the Paâ—s that he owes him nothing and it is found against him he shall be theâ— by charged of the Goods of the dead and the cause why he may be helped by demurring upon the declaration in that case is becâ—use the Testator might have waged his Law in that case of debt which the Executor could not do of other contracts and therfore shall not be charged with it by such an act if he will help himself by demurrer but in â—he assumption of his Testator he could not have waged his Law and it is founded upon the death of the Testator to wit his debt with which the Executor by a mean may be charged as before and therfore the assumption in such a câ—se maintâ—inable against the Executor But if the Testator upon good consideration assume to make assurance of Land or to do any other such collaterall thing which doth not sound in a duty of a thing payable there the Executor shâ—ll never be charged with such an assumption to render recompence for it And to this agreed all the Iustices â—â— the common Bench and Barons of the Exchequer And such an assuâ—â—â—ion hath not been allowed in the Kings Bench but of late time and thâ—â— but 〈…〉 or two cases But in the other case it hath been common and of 〈…〉 and therfore now too late to be drawn in question and if it should â—â— it may be maintained with good reason in this case of a duty of â—â—ing payable in as much as the Testator cannot wage his Law in the Action but in the other case there is no reason nor course of the Court to maintaiâ— it But the Iudges in the Exchequer Chamber reversed all these Iudments in both cases 2. Nota that this Term was adjourned to Octob. Trin. and because the Writ was that Adjournment shall be made in Octob. Trin. of all cases untill Tres Trinitat the Adjournment was made in every of the Courts of Kings Bench Common Bench and the Exchequer the very first day of Octob. Trin. then it was holden by the Iustices that the Adjournment ought not to have been made untill the sitting of the Court the fourth day from Octabis And because that the Writs were that at the said Tres Tr. the Term shall be holden therafter as if no Adjournment had been the Iustices held that they ought to sit the first day of the said Tres Trin. and so from thence every day untill the end of the Term and for all causes as if no adjournment had been and so they did accordingly saving by assent some of the Iustices did not come thither by reason of their far distance from London at the end of the Term upon the last Adjournment But they held that if it had not been for the especiall words in the Writ which were
Tales might be of the other County only Davies versus Gardiner 3. AN Action upon the case for a Slander was brought by Anne Davies against Iohn Gardiner That wheras there was a Communication of a Marriage to be had between the Plaintiff and one Anthony Elcock the Defendant to the intent to hinder the said Marriage said and published that there was a Grocer in London that did get her with Child and that she had Vide this case reported Cook lib. 4. 16. b the Child by the said Grocer wherby she lost her Marriage To which the Defendant pleaded not guilty and was found guilty at the Assises at Aylesbury to the Damages of 200. marks And now it was alledged in Arrest of Iudgment that this matter appeareth to be meerly spirituall and therfore not determinable at common Law but to be prosecuted in the spirituall Court. But per Curiam the Action lies here for a woman not maried candot by intendment have so great advancement as by her Marriage wherby she is sure of maintenance for her life or during her Marriage and Dower and other benefits which the temporall Laws gives by reason of her Marriage and therfore by this slander she is greatly prejudiced in that which is to be her temporall advancement for which it is reason to give her remedy by way of Action at common Law As if a woman keep a Victualling house to which divers of great credit repair wherby she hath her livelyhood and one will say to her Guests that as they respect their credits they take care how they they use such a house for there the woman is known to be a Bawd wherby the Guests avoid her house to the losse of her husband shall not she in this case have an Action at common Law for such a slander It is cleer that shee will So if one saith that a woman is a common Strumpet and that it is a slander to them to come to her house wherby she looseth the adâ—antage which she was wont to have by her Guests she shall have her Action â—or this at common Law So here upon these collaterall circumstances wherby it may appear that she hath more prejudice then can be by calling of one Harlot and the like And Iudgment was given for the Plaintiff Hillary Term 36 Eliz. in the Kings Bench. IN Michaelmas Term 33 34 Eliz. Rot. 181. William and Joane his wife Administratrir of Andrew Stock brought an Action upon the Case upon an Assumpsit made to the Intestate for the payment of 5 l. to William Stock who imparled untill Tuesday next after Octa. Hillary next which was the 24th day of January and then the Defendâ—nt demanded Oyer of the Letters of Administration which were entred in haec verba Wherby it appeareth that the Letters of Administration were committed to the said Joane by Thomas Taylor Batchelor of Law Commissary to the Bishop of London c. wherby the Defendant pleaded that after the last continuance â—he said Letters Patents of Administâ—ation sealed with the Seal of the Vicar Generall of the said Bishop which he useth in this behalf and brought here into Court bearing date the 27th day of January 1591. which was three daies after the continuance committed the Administration to the said Defendant And pleaded further the Act of 37 H. 8. which sayes that it shall be lawfull hereafter for any person being a Doctor of the Law to be Chancellor Commissary or to exercise Ecclesiasticall Iurisdiction albeit he were a meer Lay person so that such a person be a Doctor as aforesaid and avers that at the time of the committing of the Administration to the said Joane the said Thomas Taylor was a meer Lay person and not Doctor Legis civilis nec minister allocatus according to the Laws of the Church of England wherby he had no lawfull power to commit the Administration Vpon which it was demurred generally and by all the Court the Plaintiff had Iudgment to recover for we are to consider what our Law was in this case before this Statute of 37 H. 8. And albeit a Doctor then affirmed that the Canon Law was that there was a meer nullity in such Administration so although the party that did it not being a Clark nor Doctor according to the Stat. of 37 H. 8. yet all the Iustices agreed that the Administration so committed will be adjudged in our Law to be of force and effect being shewn under the Seal of the Officer and committed by him who is reputed the Officer who ought to do it and is invested in the Office untill it be avoided by sentence and yet such an avoidance shall not make a mans act to be made void no more then if a meer Lay-man be presented to a benefice albeit this be a meer nullity in our Law and void yet we adjudge the Church full according to the publike admission constitution and induction and not according to the capacity of the person which is a thing secret untill such a one be deprived for it by sentence in the spirituall Court and yet the Church shall be in our Law void but from the time of deprivation of which notice ought to be given to the Patron So here he remains as to our Law an Officer untill his authority be defeated by sentence of the spirituall Court otherwise great mischief will happen for an infinite number of Administrations may be drawn in question by Averment that he who granted them was a meer lay person and so make such Garboils in the Common-wealth which is not to be suffered for the inconveniency which will happen by it and therfore our Law which is founded upon reason shall judge of it according to the open appearance of the Officer to wit that he hath a grant made to him and not according to the private capacity of the person and this is not altered by the said Statuts which is made in affirmation of it and makes the authority of a Doctor of Law absolute not to be defeated by the Civill or Canon Law which is not in the other case But yet it doth not make this case of worse condition then it was at Common Law And by all the pleading of the Administration committed to the Defendant is not good because it appeareth by the date of it that it was made after the day of the last continuance and therfore could not have been pleaded untill a new continuance after And by the Doctor the last Administration does not avoid the first but in case where there is an especial revecation of the first But they did not speak of the doublenesse because the Demurrer was generall and not speciall and also because the other matters were so cleer 2. IN Trespasse for carrying away certain Loads of Hay the case hapned to be this The Plaintiff pretending Title to certain Hay which the defend had standing in certain Land to be more sure to have the Action passe for Property him
35 E. Rot. 258. And Popham said further in this case that to erect an Hospitall by the name of an Hospitall in the County of S. or in the Bishopprick of B. and the like is not good because he is bound to a place too large and incertain But a Colledge erected in Accademia Cantabrig or Oxon. is good and sâ—me are so founded because it tends but to a particular place as a City Town c. King versus Bery and Palmer 2. IN an Ejectione firmae brought by William King against John Bery and William Palmer Defendants for two Messuages and certain Lands in Halstead in the County of Leicester upon a Demise alledged to be made by Dorothy Pool and Robert Smith the case upon a speciall Verdict was this The said Dorothy was Tenant for life of the said Tenants the Remainder over to the said Robert Smith and his Heirs and they being so seised made the Lease in the Declaration upon which the Action was brought And per curiam the Lease found by the Verdict doth not warrant the Lease alledged in the Declaration for although they joyned in the Demise yet during the life of the said Dorothy it is her Demise and not the Demise of the said Robert Smith but as his confirmation for that time for he hath nothing to do to meddle with the Land during the life of the said Dorothy but after the death of the said Dorothy then it shall be said to be the Domise of the said Robert Smith and not before because untill this time Smith hath nothing to do to meddle with the Land And in a more strong case If Tenant for life and he in the Reversion in Fee make a Gift in tail for the life of Tenant for life it shall be said to be his Gift but after his death it shall be said the Gift of him in the Reversion and if the Estate tail had expired during the life of the said Tenant for life he shall have the Land again in his former Estate and there shal be no forfeiture in the case because he in the Reversion of the immediate Estate of Inheritance had joyned in it and therfore hath dispensed with that which otherwise had been a meer forfeiture of the Estate for life wherby it was awarded by the Court that the Plaintif take nothing by his Bill in 33 34 Eliz. Rot. And the Judgment is entred Hill 34. Eliz. Ret. 72. 3. In this Term I hapned to see a Case agreed by the Iustices in 3. 4. Eliz. which was this If a man make a Lease of two Barns rendring Rent and for default of payment a Re-entry if the Tenant be at one of the Barns to pay the Rent and the Lessor at the other to demand the Rent and none be there to pay it that yet the Lessor cannot enter for the Condition broken because there was no default in the Tenant he being at one for it was not possible for him to be at both places together And upon this Case now remembred to the Iustices Popham Walmesley and Fennor said That perhaps also the Tenant had not money sufficient to have been ready to have paid it at either of the said places but it is sufficient for him to have and provide one Rent which cannot be at two places together And by the Case reported here also If Lands and Woods are demised together the Rent ought to be demanded at the Land and not the Woood because the Land is the more worthy thing and also more open then the Wood And therfore by the three Iustices aforesaid Rent ought not to be demanded in any private place of a Close as amongst Bushes in a Pit or the like nor in the open and most usuall passage therof as at a Stile Gate and the like 4. Vpon a Prohibition sued out of the Kings Bench the Case appeared to be this The late Lord Rich Father to the now Lord Rich devised to his Daughter for her advancement in marriage 1500. upon condition that she marry with the consent of certain friends and deviseth further that if his Goods and Chattels are not sufficient to pay his Debts and Legacies that then there shall be 200 l. a year of his Lands sold to supply it and dies making the now Lord Rich his Executor his Goods and Chattels not being sufficient to pay the Debts of the Testator as was averred the said Daughter married with a Husband against the will of those who were put in trust to give their assents and the Husband and the Wife sued in the Spirituall Court for the Legacy And it was surmised that they would not allow the proofs of the said now Lord Rich exhihited to prove the payment of the Debts of his Testator and further that they would charge him for the sale of the Land upon which matter the Prohibition was granted to the Delegates before whom the matter depended and now consultation was prayed in the case Vpon which it was affirmed by a Doctor of the Civill Law that they will allow the proofs for the payment of the Debts according to our Law and that the Legacy shall not be paid untill the Debs are satisfied But he said that by the Law if the Executor do not exhibit his Inventory but neglect it for a year or more that then if any omission or default be in the true value of the Inventory exhibited that then such on Executor for this default shall pay all the Legacies of his Testator of what value soever they are not respecting the Debts or the value of the Goods or Chattels how small soever the omission or default be in the Inventory And so he said was the case of the now Sir Richard S. who did not bring in the Inventory for four years after the death of the Testator and that in the Inventory exhibited the values of every thing were found to be too small and therfore to be charged by their Law albeit he hath not Goods and Chattels sufficient of the Testators To which it was answered that this was quite without reason for by such means every Subject of the Realm may be utterly defeated if he take upon him the charge of an Executorship And if this shall be admitted no man will take upon him the Execution of the Will of any and by such a means none will have their Wills performed which shall be too inconvenient And they said further that in as much as Debts are to be proved by the Common Law of the Realm those of the Ecclesiasticall Courts ought to admit in the proof therof such proofs as our Law allows and not according to the precisenesse of their Law And although by their Law such a Condition as before being annexed to a Legacy is void because that marriage oughr to be free without Coercion yet where we are to judge upon the point as we are here if the Execution happen to be charged because of the sale of Land and for
the money coming therof a prohibition shall be granted to the Ecclesiasticall Iudge in such a case wherby the Court granted a speciall consultation in the Case to wit that they proceed for the Legacy provided that they charge the Executor no further then he hath in Goods and Chattels of the Testator after his true and due Debts are satisfied And that in the case of the proof of these Debts they allow such proofs as by the Law of the Land are holden to be sufficient in such a case Quod nota benâ— as to the restraining of Ecclesiasticall Courts in their proceedings to bind any subject touching his private temporall Estate against all reason And as to it that they do not intermeddle in any thing belonging to the Common Law of the Realm as Debts and the like against the due course of the Common Law Cawdry versus Atton 5. IN Trespasse brought by Robert Cawdry Clerk against George Atton Vide this Case Coke lib. 5. 1. pa. for breaking his Close at North Luffenham in the County of Rutland upon not guilty and a speciall Verdict the Case appeared to be this to wit that the Plaintiff was Rector Ecclesiae de North Luffenham aforesaid of which the place was parcell and being so seised was deprived of his Rectory by the late Bishop of London and his Colleagues by virtue of the high Commission to them and others diverted because he had pronounced and uttered slanderous and contumelious words against and in depravation of the Book of Common-prayer But the form of the sentence was that the said Bishop by and with the assent and consent of five others of the said Commissioners his Companions and namely which deprived him And further it was not found that the Commissioners named were the naturall Subjects born of the Queen as the Statute enacts that they should be And if the deprivation be void then they find the Defendant guilty and if it were good then they find him not guilty And it was moved that the deprivation was void First Because that wheras the Commission is to them or any three of them of which the said Bishop to be one amongst others it ought to have been the sentence of them all according to the authority given to them which is equall and not that it was done by one with assent of the other Then because it is not found that the Commissioners are the naturall Subjects of the Queen born as by the words of the Statute they should be Another is because the punishment which the Statute provides for those of the Ministry which deprave this Book is to loose the profits of all their Spirituall Promotions but for a year and to be imprisoned by the space of six months and not to be deprived untill the second Offence after that he had been once committed and therfore to deprive him for the first offence was wrongfull and contrary to the Statute But by the whole Court for the form of the deprivation it is that which is used in the Ecclesiasticall Courts which alway names the chief in Commission that are present at the beginning of the Sentence and for the other they mention them only as here but of their assent and consent to it and in such cases we ought to give credit to their form and therfore t is not to be compared to an authority given at Commen Law by Commission And for the matter that is not found that the Commissioners were the naturall Subjects of the Queen born it is to be intended that they were such unlesse the contrary appear But here at the beginning it is found that the Queen secundum tenorem effectum actus predict had granted her Commission to them in causis Ecclesiasticis and therfore it appeareth sufficiently that they were such as the Statute wills them to be And for the deprivation they all agreed that it was good being done by the authority of the Commission for the Statute is to be understood where they prosecute upon the Statute by way of Inditement and not to restrain the Ecclesiasticall Iurisdiction being also but in the Affirmative And further by the Act and their Commission they may proceed according to their discretion to punish the offence proved or confessed before them and so are the words of their Commission warranted by the clause of the Act. And further the Ecclesiasticall Iurisdiction is saved in the Act. And further all the Bishops and Popish Priests were deprived by virtue of a Commission warranted by this clause in the Act And now lately it was agreed by all the Iustices that a Fine of 200. marks set upon one for a vitious liver by the high commission was warranted by virtue of the Commission and Act And therfore if the Act with the Commission are to be consdered in this case wherupon it was agreed that the Plaintiff should take nothing by his Writ Which you may see Hill 33. Eliz. Rot. 315. Hall versus Peart 6. IN an Ejectione firmae brought by William Hall Plaintiff for Land in D. in the County of Somerset upon a Lease made by William Dodington against John Peart and other Defendants upon a speciall Verdict the case appeared to be this That one Iohn Brown was in possession of certain Lands in D. aforesaid Vide this case in Cook lib. 2 32 33. by the name of Dodingâ—ons case which before were parcel of the possessions of the Hospitall or Priory of S. Iohns in Wells the Inheritance therof then being in the late King H. 8. by the Act of dissolutions And the King being so seised by his Letters Patents dated 26. of March 30 H. 8. ex gratia speciali certa scientia mero motu suo granted to Iohn Ayleworth and Ralph Duckenfield omnia illa Messuagia Ter. Tenemt gardina sua quaecunque tune in separabilibus tenuris diversarum personarum which he named particularly amongst which the said Iohn Brown was one in Civitate Wellen. ac in suburbiis ejusdem Civitat exira eandem civitat within the Jurisdictions and Liberties of the said City late parcell of the possessions of the said Hospitall and that the said Iohn Brown had not then any other Lands late parcel of the possessions of the said Hospitall but this in D. and that this Land was quite out of the said City of Wells and of the Suburbs therof and also out of the Liberties and Jurisdiction of the said City and yet it was found that it was in the particular and parcell of the value and valued in it in the Tenure of the said Iohn Brown at 6 s. 8 d. a year and the grant was to the said Iohn Ayleworth and Ralph Duckenfield and to the Heirs of the said Iohn Ayleworth forever And it was moved that the Grant was good to the said Ayleworth and Duckenfield because of the Statute of non-recitall and mis-recitall because it appeareth by the particular and value that it was intended to be passed
said Queen her Heirs and Successors for ever which Deed was acknowledged the 25th day of March 32 Eliz. and enrolled in the Chancery the 12th day of May in thâ— same year And there was a Proviso in the same Deed that if the said Robert Bret shall pay to the Queen at the receipt of the Exchequer 5 s. of lawfull money that then the said Gift Grant Bargain and Sale shall be void and that from thence-forward it shall be lawfull for the said Robert Bret and his Heirs to re-enter into the said Tenements and in the mean time between the Inrolement of this Deed And the said 14th day of Octob. to wit the 15th day of September 32 Eliz. the said Arthur upon the said Tenements in North-petherton entred and claimed the Reversion therof in the right of the said Elianor his wife by reason of the death of the said Christian And that afterwards to wit the 30th day of February 33 Eliz. the said Robert Bret to redeem the said Tenements out of the Queen paid the said 5 s. at the receipt of the Exchequer which payment is there recorded and enrolled accordingly after which in September 34 Eliz. the said Arthur and Elianor sued out a speciall Livery of the said Elianor out of the hands of the Queen of all the Lands seised into the hands of the Queen by reason of the Nonage of the said John Mallet And afterwards in the same meneth of September 34 Eliz. the said Arthur and Elianor sued out another speciall Livery as Heir to the said Christian of all the Lands which were in the Queens hands by the death of the said Christian And it was further found that the said John Clark and Elianor Middleton died after the 5 s. paid as before and that the said Robert Bret entred the 8th day of October 34 Eliz. and then made the Lease to the Plaintiff upon which the Defendant by commandment of the said Arthur and with him entred upon the Plaintiff and the generall question was Whether the entry of the Defendant were lawfull But no ouster of the Plaintiff was found And by Clench and Fennor a Fee-simple passe at Common Law by a Fine levied by him in Reversion or Remainder in Tail because a Fine is said to be a Feoffment of Record and by their entry and Feoffment a Fee-simple passe in such a case at Common Law But by Popham and Gaudy a Fee-simple doth not passe nor nothing but that which Tenant in Tail may lawfully grant over which is for his life in which he said that Littleton was plain in all cases of Grant although it be by Fine and a Fee-simple does not passe at Common Law but where the Fee may be drawn out of him who had the Reversion or Remainder in Fee therupon if such a Reversion or Remainder had been in a stranger which had not been in this case if the Reversion or Remainder had been in a stranger and therfore a Discontinuance cannot be of an Intail where the Reversion or Remainder is in the King But by them all however it was at Common Law it is cleer upon the Statute of Fines that a Fee-simple determinable passe by such a Fine as soon as the Fine is levied because every Fine by presumption of Law shall be taken to be such wherupon proclamation is made untill the contrary therof appeareth to the Court. And this is the reason why a Quid juris clamat is at this day maintained upon such a Fine which was not at Common Law before this Statute or otherwise it will never lye And so it was holden lately in the Common Bench in the case of Iustice Wimondham and yet we may see that the Quid juris clamat ought to be brought before that the Fine be engrossed wherby it is manifest that now a Fee-simple shall passe by the Fine levied for the possibility of the Proclamations to wit that the Proclamations shall not be made and to this Fee-simple the Proclamations shall enure to make a bar to the Estate-tail But such a Fine by Popham and Gawdy was not any wrong to him who had the Reversion or Remainder in Fee being levied by him who had a mean Reversion or Remainder in Tail depending upon an Estate for life or in Tail precedent And it is cleer that the Proclamations do not make the Estate but enure to the Estate made by the Fine for if an Estate be granted in Reversion for life or in Tail by Fine with Proclamations by such a Tenant in Tail in Reversion or Remainder the Proclamations work to this Estate and no further for alwaies the Estate passe by the Fine and the Proclamations make the Bar according to the Estate which passe by the Fine before But by Clench Gawdy and Fennor the Fee-simple which was in the Queen after the Fine levied as before was divested by means of this claim made upon the possession of the Queen lo that the Proclamations following are of no force to hurt the Estate tail for they said in divers cases a possession may be invested out of the Queen without Office Petition or Monstrans de droit as the case is where a man devise that his Land shall be sold and in the mean time before the sale the possession of the Land cometh to the Queen and afterwards the Land is sold according to the Will the Vendee enter there the Land passe from the Queen therby and is divested and so in many other cases And in all cases where the Queens Estate is determined the Subject may enter into the Land without Office or Ouster le main c. And they said if it had been in the possession of a common person that by such a claim the force of the Fine had been defeated and this appeareth by the case between Smith and Stapleton in the Commentaries where it is holden that where a Fine is levied with Proclamations by Tenant in Tail of an Advowson Rent or Tithes by claim made by the Issue in Tail before the Proclamations are passed where the Tenant in Tail is dead the same is defeated and that the Proclamations passing afterwards shall not be of force to bar the Intail And they said that the conveyance therof to the Queen after the Fine levied doth not make it to be in worse case And admit it will not serve against the Queen yet the claim will serve against Bret when he had entred by the performance of the Condition And Clench and Gawdy said that Bret shall not take advantage of this covenous Deed made by himself of very purpose to bar the party who had right and to put him without remedy no more then where the Disseisor enfeoff his Father who dies seised he shall not take advantage of this descent or if he who hath cause of Action to recover Lands by Covin causeth another to enter into the Lands to the intent to recover against him and does it accordingly for the Covin the Recovery shall
of his Executors for years this Estate for years is not now vested in any because a man cannot have an Executor during his life and yet it remains as in the custody of the Law untill there are Executors to take it And he said that the case of the Lady Bray was as strong to prove the case in question to be at he takes it which cannot be answered for if she had married with the Lord Bray by the assent of the Councell assigned for it according to the agreement she had taken an Estate by the Contingency but in as much as she did not do it it was otherwise And we are to consider well what we do in this case it is a Tree the branches wherof over-shadow all the Possessions of the Realm in effect for the Estates and Leases in manner of all stand upon those assurances to Uses and to pull up such a Tree by the roots is to put all the Realm in a confusion and therfore if there be any mischief therin it is better to help it by Parliament then to alter it by Judgment And so upon the whole matter I conceive that Judgment ought to be given for the Plaintiff Anderson That an Use was not at Common Law for the Common Law had no respect to it but to the Feoffee and it was the person who by the Law had any thing to do in the Land and not Cestay que Vse for he might punish Cestay que Vse for his medling with the Land and Cestay que Vse had no remedy against him by no means But by Suboepna in the Court of Conscience And further an Vse being limited to another in Fee no Vse can be limited further therupon for any Estate And it hath been well sayd that the letter of the Statute of 27 H. 8. did not tend to execute this Vse which was not in Esse and for the intent therof that it did not tend to execute any contingent Vse untill that it happen which is proved by the case that an Estate for years being assigned over or granted to an Vse the Vse of this is not executed by the Statute of 27 H. 8. as it was agreed about 27 Eliz. and what was the reason in the case but because there was not any Seisin in the Vse but only a possession to the Vse wherby the words of the Statute are much to be regarded And here how can there be a Seissin to the Vse which is not it cannot be and therfore for the like reason as in the other case it is never executed nor shall be removed by means of such an Vse untill it hapneth to be an Vse in Esse And for Brents Case I have alwaies taken the better opinion to be that the Wife cannot take in the case for the mean disturbance notwithstanding the Iudgment which is entred therupon which was by assent of the parties and given only upon a default made after an Adjournment upon the Demurrer for he said that he had viewed the Roll therof on purpose and if it be that such a Contingent Vse be not executed untill it hapneth to be in Esse here it appeareth that by the Feoffment Christopher is in of another Estate which was not subject to the Vse because he is in by forfeiture and wrong made to this Estate and therfore not bound to the Vse in Contingency although he made it without consideration and although he had notice of this contingent Vse and therfore this contingent Vse utterly defeated before it had any being But in all the Cases put on the other side it doth not appear that there was any thing done in disturbance of these mediate uses before they hapned and therfore not to be compared to this case wherby he conceived that the Plaintiff ought to be barred Popham said That in as much as the manner of assurance made by Sir Richard Chudleigh may seem strange and in some manner to touch the reputation of the said Sir Richard who was a grave and honest Gentleman to those who heare it and do not know the reason why he did it which I remember to be this as I have heard to wit That the said Christopher had killed one Buller a Gentleman of good reputation wherupon he fled into France and the said Sir Richard doubting what would become of his Estate if he should dye before he had setled his Land and yet having a desire to have power to undo the assurance which he purposed to make if he pleased his Councell then thought the best way to make and devise the assurance so that such an Estate of Inheritance might therby be in him which could not descend to the said Christopher and yet such that he might therby undo the assurance made by the Recovery when he pleased and yet such also as should never take effect in any of the Issues of his other Wives to the prejudice of his right Wives because he never had a purpose to marry with any of these Wives And to that which hath been touched by Periam That this Limitation first made is a Fee-simple in Sir Richard I conceive cleerly the contrary For if it should be so then no Vse could be limited over upon this Fee-simple as hath been said before and therfore all the remainder of the Case had been to no end but he said that it was an Estate-tail speciall in Sir Richard and denied the opinion of Ay scough taken so in 20 H. 6. and this by reason of the Statute of Donis conditionalibus which wills Quod voluntas donatoris secundum formam doni in charta doni manifeste expressam de caetero observetur And here it is expresse that the Heirs of Sir Richard begotten upon any of the said Wives shall have the Land and therby it shall be understood that his Heirs shall be intended by common intendment the Heirs by him To which opinion Anderson agreed And for the matter Popham conceived cleerly that there was not any such use at Common Law as we commonly call an use and yet he acknowledged there were alwaies trusts at Common Law but every trust is not to be said an use for none will doubt but that a tâ—ust may be and is many times put in others at this day as upon puâ—chaseâ— made in other mens names and assurances also upon trust and yet we will not say that this is an use and without doubt such trusts were at Common Law but not the uses aforesaid and the reason that moved him to take the Law to be so was that he had not seen any ancient record Statute or Book of Law nor any writing before the time of Ed. 3. which made any mention of this word use and if it had been at Common Law without doubt as they said some mention would have been made therof The reasons which are alledged in 27. H. 8. and in the case vouched 24. H. 8. that a trust was at Common Law is by the one of them
not properly said an Use untill that it be said in Esse to take the Profits themselves But I am to turn this Argument against him who made it for if it be so the Use can never be in suspence and iâ— so it follows that no Possession by means of any such Use can be in suspence but staies where it was before to be executed when the Use happens to be in beeing But as to that that a Reversion or Remainder may be of that which we call an Use so also may such a Use be in suspence in the same manner as the Possession it self but not otherwise And as to Cramners Case formerly put the Law is so because nothing appeareth in the case to be done to the disturbance of this contingent Vse in the interim before it happen But upon the Case put of the Lady Bray upon which it hath been so strongly relied it was thus The Lord Bray made an assurance of certain Lands to the use of certain of his Councell untill the Son of the said Lord Bray should come to the age of 21. years for the livelyhood of the said Son and of such a Wife as he shall marry with the assent of the said Councell and then to the use of the said Son and of the said Wife and of the Heirs of the body of the said Son The Father dies the Son was become in Ward to the King after which one of the said Councellors dies the King grants over the Wardship of the said Son after which the said Lord Bray by the assent of his Guardian and of the surviving Councellors marries the Daughter of the then Earl of Shrewsbury after which the Husband aliens the same Land to one Butler and dies and upon Action brought by the said Lady against the said Butler for the same land she was barred by Judgment and upon what reason because she was not a person known when the Statute was made which must be in every case of a Freehold in Demesne as well in case of an Use as in case of a Possession And therfore a Lease for years the Remainder to the Heirs of I. S. then living is not good and the same Law of an Vse And so it was agreed by all the Iustices very lately in the case of the Earl of Bedford but in these Cases it remaineth to the Feoffor and because it doth not appear at the time of the assurance who shall be the Wife of the said Son so that there was not any to take the present Free-hold by name of the Wife of the Son she takes nothing by the assurance but this reason makes for our side to wit That if there were none to take the Free-hold in Demesne from the Use when it falleth he shall never take it The other reason in this Case was because she was not married by the consent of all the Counsellors for that one was dead nor according to the power given by the agreement but by the authority of the Guardian that the power which the Father had upon his Son was ceased And Nota That by a Disseisin the contingent Use may be disturbed of his Execution but there by the regresse of the Feoffee oâ— his Heirs when the Contingent happen it may be revived to be executed But by the release of the Feoffee or his Heirs the Contingent in such a case by Popham iâ—â—â—â—red oâ— all possibility at any time to be executed And to that which hath been said that the generall and universall Assurances of men throughout all the Realm at this â—ay arâ— by means of Vses and that it shall be a great deal of danger and inconvenience to draw them now in question or doubt and that it now trembleth upon all the Possessions of the Realm and therfore it shall be too dangerous to pull up such Trees by the roots the Branches wherof are such and so long spread that they overshadow the whole Realm Popham said That they were not utterly against Uses but only against those and this part of them which will not stand with the publike Weal of of the Realm and which being executed shall make such an Estate which cannot stand with Common Law of the Realm or the true purport of the Statute and therfore he said that it was but to prune and cut off the rotten and corrupt branches of this Tree to wit that those which had not their substance from the true Sap nor from the ancient Law of the Realm nor from the meaning of the Statute and so to reduce the Tree to its beauty and perfection The same reason he said might have been made in the time of Edw. 4. against those Arguments which were made to maintain the common Recoveries to bar Estates-tail But if such a reason had been then made it would have been taken for a bare conceit and meer trifle and yet Vses were never more common then Estates-tail were between the Statute of Donis conditionalibus and the said time of Edw 4. But the grave Iudges then saw what great trouble hapned amongst the people by means of Intails and what insecurity happened by means therof to true Purchasors for whose security nothing was before found as we may see by our Books but collaterall Warranty or infinite delay by Voucher and thus did the Iudges of this time look most deeply into it wherupon upon the very rules of Law it was found that by common Recovery with Vouchers these Estates-tail might be barred which hath been great cause of much quiet in the Land untill this day that now it begins to be so much troubled with the cases of Vses for which it is also necessary to provide a lawfull remedy But he said plainly That if the Exposition made on the other side shall take place it will bring in with it so many mischiefs and inconveniencies to the universall disquiet of the Realm that it will cast the whole Common-wealth into a Sea of troubles and endanger it with utter confusion and drowning And to that which was said That a Remainder to the right Heirs of I. S. or to the Heirs of the body of I S. or to the first Son as here are so in the custody of the Law that they cannot be drawn out that therfore no forfeiture can be made by the Feoffment made by him who hath the particular Estate To that he said That a Disseisin made to the particular Estate for life draws out such Remainders to the right Heirs as is proved expresly by 3 H. 6 where it is holden that a collaterall Warranty bars such a Remainder in obeyance after a disseisin And by Gascoigne 7 H. 4. If such a Tenant for life makes a Feoffment in Fee it is a Forfeiture but he conceived that in the life time of I. S. none can enter for it but this is not Law and when by the Feoffment the particular Estate is quite gone in possession and in right also the remainder shall never take
great deliberation viz. Mountague chief Iustice Crook Doderidge and Haughton Iustices that it was not a common Nusance either punishable or inquirable in a Leet and by Haughton a man hath Jus proprietatis privilegii in the Doves 1. Propriety in respect of the place as 22 H. 6. 39. Trespasse lies for taking a Goshawk in respect of the place as 3 H. 6. 55. For Hares and Spencers case in Dyer and so of other things which are Ferae naturae And if a Deer goes out of a Park albeit it be in the Kings case yet it is lawfull for the Owner of the Sail to take it if it be in the place where the Deer bath chase and re-chase And by the Register and Fitzherbert it appears that Trespasse lies Quaere columbare fregit Columbas cepit But 16 E. 4. 7. Trespasse doth not lye for killing of Doves but there is a Quaere of an action upon the case and because the Doves do no Trespasse neither is there any remedy for the killing of them therfore they are no common Nusance for by Brook 34 H. 6. Brooks action upon the case the common custom is the common Law and there is no authority against it but Co. lib. 5. 104. Boulstons case which is only on the byâ— and is not agreeing with the reason of the principall and this confirms my opinion Quod fiat concessum per totam Curiam for there the principall case was that a man made Cony-burrows and the Conies strayed into his Neighbors grounds and adjudged that it was not actionable but it was lawfull for any man to kill them upon his own ground so here c. Doderidge It may be a hurt to the Common-wealth but not a publike Nusance for that ought to be immediate or generall 1. Immediate it cannot be for the erecting of a Dove-coat cannot in it self be a Nusance 2. It is not generall but particular to the Neighbouring Inhabitants And it hath been allowed of all sides that a man may have a Dove-coat by prescription which could not be if it were a Nusance to which Mountague agreed And it is lawfull for any man to kill the Doves upon his own Land but they must be ware that they do it not against any Statute for Doves are preserved by many Statutes as by the Statute of Wales made in the time of E. 1. and the Statute of 18 E. 2. gives directions that the killing of Doves shall be presented at the Leet And the Statute of 18 Eliz. ordains that Doves shall not be shot 3. However the Replevin lies for a fault in the pleading for the harm and nusance which the Doves do is laid to be Per totam patriam wheras it ought to be within the Precinct of the Leet to which Mountague agreed Crook A man hath property in the Doves only by the Possession for being at large they are Nullius in bonis and when they are in his possession to wit in the Dove-coat they do no harm to any and it was lately ruled in this Câ—uâ—t that a man cannot lay Loggs in the Kings high way although there be sufficient room for Passengers because it is a wrong to have the high way strained so here a Prescription should not be good if it were a Nusance for it is all one to erect a great Dove-coat or a little one for a Nusance Non recipit magis aut minus And Bolstons case rather confirms then encreaseth my doubt and so I agree with my Brethren Mountague A man hath Jus duplex in Doves 1. Jus proprietatis 2. Jus privilegii for they fly to and again and as Bracton saith have Animum revertendi and so have not other things which are Ferox naturae And it is a good Argument that this matter was never questioned for it is without question Littleton saith in the case of Disparagement 21 E. 3. 4. They of the Leet ought to enquire of such things as have been enquirable yet the excesse therof is restrainable by the Iustices of Assise A Precipe lies of a Dove-coat as appears by the Verse Mich. Col. and Dower and Partition lies therof which shews it to be lawfull and by the Excesse of Dove-coats restrainable by the Iustices of Assise Book of 17 E. 4. 7. It seems that it is not lawfull to take Doves And as a man cannot prescribe to do a Nusance so the King cannot licence one to do it And therfore I agree that Iudgment shall be given for the Dove-coat The same Term in the same Court. Richardson versus Cabell RIchardson being a Parson libelled against Cabell in the Spirituall Court for Tithes because the said Cabell being an Inn-keeper took all the benefit of his Pasture by putting in Guest Horses into his Pasture wherupon Cabell prayed a Prohibition and it was not granted for it is Tithable in this case But if Cabell had taken a crop of Hay and afterwards he had put Guest Horses into the Pasture in that case it had not been Where tithes shall be paid for grasse of guest Horses Tithable for he had his Tithe before and therby it should seem that some Crop is not Tithable The same Term in the same Court. Southern versus How RAlph Southern Plaintiff in an Action upon the Case against Robert How shews for his case That the Defendant being a Goldsmith in London and having Counterfeit Iewels knowing them to be counterfeit sent William Saldock his Servant with them to the Plaintiff being a Merchant in Barbary to use him for the sale of the Iewels to the King of Barbary and the Plaintiff therupon sold them to the King of Barbary for 800 l. and Saldock having received the said money went from thence And the Iewels being afterwards discovered to be counterfeit the Plaintiff was taken and enforced by Imprisonment to make restitution of the money to the said King But it was said by the Court that the Verdict did not prove the case for it was found that the Defendant did not command his Servant to make use of the Plaintiff nor to sell to the King but generally to any And that the Iewels were of some worth Scil. 80 l. And it was agreed at the Bar by Davenport that in this case the action well lies for the Master shall answer for Where a Master shall be answerable for his Servant and where not his Servant Dyer 151. the Lord Norths case 5 E. 4. 1. the Sheriff shall be amerced for the ill return of his Bailiff And if I command my Servant to kill one who commands another in this case the Master shall not be punished but in Trespasse all are principals and 2 H. 4. 18. If a Servant burns his Masters house wherby another house is burnt there the Master shall answer for it for 14 H. 8. 31. b. an Action upon the case lies where there is no other action provided for such a thing so that an action well lies in this case and see
very plain case Crew chief Iustice agreed and in his argument he affirmed what Jones said that a generall Iudgment shall not be given against the Heir if he do not plead falsly that he hath no Assets and not upon Nihil dicit And so Iudgment was given that the Plaintiff shall have Execution of the Moyety of the Lands discended to the Defendant and so note the diversity of debt against the Heir and Scire facias against the Heir Dickenson versus Greenhow Hill 1. Car. In the Kings Bench Intr. Hill 18. Jac. Rot. 189. IN an Attachment upon a Prohibition the Plaintiff declared that where Robert the last Abbot of Cokersham in Lancashire was seised in Fee of three acres of Land parcel of his Monastery and that the Abbot and his Com-monks and all the Predecessors of the Abbot were time out of mind of the order and rule of Praemonstratenses and that the order of Praemonstratenses and all Monks therof were time out of mind discharged of payment of tithes for their Lands and Tenements Quamdiu manibus propriis aut sumptubus excolâ—bant And that the said Abbot and all his Predecessors time out of mind had holden the said three acres discharged of payment of Tithes Quamdiu c. and so held them untill the dissolution of the Monastery and shew the surrender to H. 8. and the Statute of 31 H. 8 by force wherof H. 8. was seised and held them discharged and from him derive them to E. 6. and from E. 6. to Queen Mary and from her to Queen Elizabeth and from her in the 42. year of her Raign to Wagstaff and from him by mean conveyances to Dickenson the Plaintiff Quorum pretextu he was seised and enjoyed them in Propria manurantia and shew the Statute of 2 E. 6. cap. 15. wherby it is enacted that Tithes shall be paid as usually they were c. Quorum pretextu the Plaintiff held the three acres discharged of Tithes and that notwithstanding and against the Prohibition the Defendant did draw him into Plea for them in Court Christian and the Iudge therof held plea and the Defendant did there prosecute him to the disinherison of the Crown And upon this the Defendant demurred and prayed a consultation And Sir John Davies the Kings Serjeant argued for the Defendant that a Consultation should be granted because that his matter of discharge is double 1. His Priviledge 2. The prescription and if either of them will not help him then he ought to be charged For the Priviledge he took it that the Praemonstratenses never had such a priviledge It is a Maxime in Law All Lands chargable with Tithes that all persons ought to pay Tithes and all Lands shall be charged with them of common right but also there are divers discharges of them and allowed by our Law as is manifest by the orders of Templers Hospitalers and Cistertians which discharges our Law allows and these are 1. By prescription 2. By reall composition 3. By priviledge obtained and that by two wais 1. Either by the Bull of the Pope for he taking upon himself to be the great Dispensâ—r and Steward of the Church took upon him to discharge them but this as it is holden by the Canon he could not absolutely do but might divert them to a Clergy-man or grant to another to hold them by way of retainer and this ought to be to a Clergy-man also Or 2. By a generall Counsell for some orders were discharged by generall Counsels So some obtained Priviledges by the Popes Bulls which are his Patents some by Counsels which are as his Statutes and Decrees were as Iudgments but yet none of them had ever any force in our Law nor did bind us in England more then voluntarily retained and approved by usage and custom for as it is said in 11 H 4. the Pope cannot alter the Law of England and this is evident for in all cases where the Bulls or Constitutions of the Pope crosse the Law of the Land they have alwaies been rejected The Popes Bulls of four sorts as for instance 1 In the Bulls which are of four sorts 1. Of Provision 2. Of Citation 3. Of Exemption And 4. Of Excommunication And as for those of Excommunication it appeareth that it was Treason at Common Law and that the Treasurer did kneel to E. 2. for one who brought them in and in the perpetuall course of the Books afterwards they have alwaies been disallowed in Pleas. So his Bulls of Citation before the Statute of Provision was a hainous offence and so are Bulls of Provision and Exemption For his Canons where they were against the Law they were neglected It appeareth by the Canon Quod nullus capiat beneficium a Laico and yet notwithstanding continued long after for Benefices and does yet for Bishopricks that the Clergy shall take them from the King and a lay-hand And also there is a Canon for exemption of Clarks out of temporall Iurisdiction but yet as Brain saith 10 H. 7. 18. it was never observed here So the Canon saith that the time of the Laps shall be accounted Per septimanas but our Law not regarding this saith that it shall be accounted Per menses in the Calender as it is expresly adjudged in 5 E. 3. Rot. 100. Rot. claus in turri And there is a great reason for it as it is in 29 H. 3. memb 5. in turri It is not necessary for Bishops of England to go to generall Councells so as in Parliament those that do not â—end Knights or Burgesses shall not be bound by Statutes And the Counsels of Lyons of Bigamis c. are expounded by Statutes how they shal be taken so that it they have a Priviledge as in truth they have by the Popes Bulls if it were not allowed in England they are not of force to priviledge them against the Common Law of the Land for payment of Tithes but this was never here allowed And now for the Prescription this cannot help them for Monks are not of Evangelicall Priesthood to wit capable of Tithes in the Pernamy but meerly Lay-men and then as the Bishop of Winchesters case is they cannot prescribe in non decimando And Bede saith of them that they are Merè laici so that if their Priviledge were allowed their Prescription will not help them The priviledge of Praemonstratenses was by the Counsell generall of for their discharge which denies that all religious persons should be discharged of Tithes of Lands in their own hands Quamdiu c. But afterwards Adrian restrained it to Templars Hospitalars and Cistertians omitting the Praemonstratenses and the decree of Adrian was received also wherby the Law took notice of the discharge of the said three Orders True it is that the Praemonstratenses have a Bull of Pope Innocent the third of discharge and as large liberties as the Cistertians but they never put this in ure And it seems 1. That there were of them 29. Abbots
put in Bracton lib 4. 221. These are called Servitutes as jus eundi fodendi hauriendi c. sunt servitutes quas praedia ex quibus exunt aliis praediis debent and are called Servitutes praediales and this began by private right to wit by grant or prescription A way or common shall be extinguished because they are part of the profits of the Land and the same Law is of Fishings also but in our case the water-course doth not begin by the consent of parties nor by prescription but Ex jure naturae and therfore shall not be extinguished by unity A Warren is not extinguished by unity because a man may have a Warren in his own Land and in the case of 11 H. 7. the Gutter was not extinguished only by the unity of possession but there also appeareth in the case that the Pipes were destroyed wherby it could not be revived and although the Book of 13 Eliz. Dyer 295. Two Closes adjoyn together the one being by prescription bound to a Fence the owner of the one purchase the other dies having issue two Daughters who make partition it is a quaere whether the inclosure be revived yet I conceive cleerly that by unity of the possession the Inclosure is destroyed for fencing is not naturall but comes by industry of men and therfore by the unity it shall be gone and so briefly with this diversity he concluded that where the thing hath its being by prescription unity will extinguish it but where the thing hath its being Ex jure naturae it shall not be extinguished and therfore the Plaintiff ought to have Iudgment Jones Iustice agreed that the Declaration is good and that the Bar also is good in manner but for the matter in Law it is not good As to the first exception to the Declaration I conceive it is good albeit there wants a prescription and this is the ordinary of pleading as appears in Co. lib. 4 Luttrels case and in all the presidents before cited 2. For the exception Vi armis he conceived this difference where the act is a Trespasse and a Nusance there it may be laid to be Vi armis but if it be a Nusance only and not a Trespasse it is otherwise as if I have a way over another mans Land if a stranger dig in the Land so aâ— I cannot have the way now because it is a Trespasse to the Owner of the Soil in my action upon the case against a stranger I may have Vi armis but if the owner stop the way there Vi armis shall not be in my action upon the case For the third exception because he both not say Ad Rectoriam spectandum but I conceive that it shall be intended ad Rectoriam impropriat and so it appeareth 4. Where it is said Watering-course for his Tenants I conceive it is good enough being in an action upon the case where damages only are to be recovered That the Bar also is good in form for although the Tenant here be a Disseisor yet it is a good Bar for it matters not whether he hath a Title or no if the Water-course be extinct by the unity for the matter in Law he conceived that the unity of possession had not extinguished the Water-course A man hath things out of another mans Land either by grant as a Seigniory Rent Common c. and these are distinguished by unity c. and the reason is because one who hath interest as Owner of the Land cannot have a particular interest in the same Land also Or by prescription and those things are extinguished by unity of possession also and not only for the first reason because he is Owner of the Land and so cannot have a particular interest in the same Land also but also because that by the unity the prescription fail And for the case in Dyer 13 Eliz. I conceive that by the unity the inclosure is gone and so it was resolved in 37 Eliz. for every one is not bound to inclose For the case of the way I will suspend my opinion concerning it because Clark and Lambs case is now depending touching it in the same point But now for our case it differs from the other cases for the prescription here is in another manner then is made for Common for it shall be pleaded either as appendant or appurtenant but Currere solebat is only in this pleading for here no interest is claimed but in the other cases an interest is claimed In this case the Land remains as it was before and therfore the unity will not extinguish it and if such a unity by construction of Law should extinguish Water-courses it would be too dangerous for suppose that a man hath a Water-course from Thames to his house in Lambeth if he purchase a parcell of Land in Hendley now because that the Thames come by the same Land his Water-course shall be extinguished Also suppose that the Water-course after it hath been in the Curtilage of the Plaintiff goes into another Curtilage is it reason that by this unity the second man shall lose his Water-course without doubt it is unreasonable And the case of 11 H. 7. of the Gutter warrants this opinion and therfore the Plaintiff ought to have Iudgment Doderidge Iustice I conceive no great difficulty in the case for the exceptions to the Declarations they are not materiall 1. That there wants Prescription or Custom I conceive that it is good enough for here are the words of Currere solebat consuevit and Consuevit is a good word for a Custom 2. That a Lay-man cannot have a Parsonage true it is that a Lay-man cannot be a Parson but he may have a Parsonage for he may be Lessee of it which appeareth many times in our Books 3. That it is not alledged to be Vi armis this is the most colourable exception and the case and rule cited out of Co. lib. 9. the Earl of Shrewsburies case is good Law but it is impossible to plead Vi armis in this case for the unity was in H. 8. and the wrong is supposed after the severance and it is supposed to be done by the Owner of the Land and a man cannot do a thing upon his own Land Vi armis 4. Because it is not alledged to be an ancient Rectory I conceive it need not because the Law presumes all Rectories to be ancient the Patronages wherof are gained Ratione fundi fundationis vel dotationis 5. Because he doth not say that Pertinet ad Rectoriam But he hath said a thing which amounts to as much for it is said that in the Rectory was a certain Curtilage in which there is a Watering-pond and the Curtilage is part of the house and therfore he need not say that it belongs to the house For the Bar I conceive that it is good for the Mannor A man makes a Feoffment of Land the Owner of the Land being present at the
given in Cities and Towns Corporate and not where Iudgment is given in this Court or the Common Pleas and Executions are only there and this seems to be a reasonable construction Executions in Towns corporate to wit Executions upon Iudgments given in Towns corporate If the Sheriff make execution at the Town side he shal have for his fees as the Statute limits therfore he shall have it if within the Town if this should not be so this mischief would ensue that presently when an Execution issues out against a man he wil shelter himself in a Town corporate as in a Sanctuary and the Sheriff will not do execution there because he shall not have so great a Fee for doing it as if it were in another place and so execution which is the life of the Law shall be undone Jermy for the Defendant and first if the summ exceed a 100 l. he shall have but 6 d. for every 20 s. of all It is considerable that at Common Law the Sheriff ought to do execution freely without any recompence In Both and Sadlers case lately in this place an action upon the case was brought by a Bailiff that wheras a Warrant for taking such a man was directed to him the Defendant promised him 40 s. for his pains he took the man and brought an action for the 40 s. and it was agreed that he should not have it The Law abhors that great Fees shall be given for executions Co. lib. 3. 7. in Heydons case In the exposition of the Statute three things are considerable 1. What the Common Law was before the making of it 2. What the mischief was at the Common Law 3. The remedy which the Statute gives 4. The true reason of the remedy The Common Law was that the Sheriff shall not take any Fee for execution Ergo now he shall take as small a fee as may be because this is nighest to the common Law And the first words are declarative what Fees he shall take and the subsequent words affirmative what Fees they may now take to wit where the summ doth not exceed a 100 l. 12 d. for every 20 s. 14 Jac. It was objected that the Sheriff is not bound to do execution before he hath his Fee and then it was resolved that he might have an action of Debt and so it seems that the party is not bound to give levying money before that the execution be done and otherwise the party Plaintiff may be at great mischief if the other be not taken And it hath been agreed lately in the Common Pleas that if the summ exceed 100 l. he shâ—â—l have but 6 d. for every 20 s. And as to the second point he endeavoured to maintain that the Proviso extends to executions in Towns corporate although the Iudgments upon which the executions issue are given in other Courts and this is the constant practise of the City of London The Iudges delivered their opinion with a protestation that they might recall them if afterwards better reason appeared Crew chief Iustice was of opinion that he shall have but 6 d. for every 20 s. if the summ exceed 100 l. and the summ shall not be divided but if the summ be under a 100 l. then 12 d. for every 20 s. and this is the reason of the Law And for the second point although the Iudgment be given in the superior Court yet if the Sheriff does execution there he shall have his levying money and this is within the intention of the Proviso Doderidge Iustice the first question is upon the exposition of the Statute the second upon the Proviso For the first two expositions may be made as hath been remembred then we will enquire of the interpretation This Statute was made for the benefit of Sheriffs that as they are in hazard by taking of men because many times resistance was made 2. When the Sheriff had taken a man and in the carriage of him to prison he had escaped an action upon the case did lye against the Sheriff and when he had him in prison he ought to have great care in keeping of him for an action lies against him if he escape and therfore although on the one side there was a great mischief by reason of great Fees that the Sheriff took for execution so on the other side the Law tendred Sheriffs in respect of the hazard â—â—d care which they had of men in execution and therfore the Law in an indifferency provides that the Sheriff shall have a good Fee for execution and also it provides against his extortion and so it is indifferent between the oppression of the Sheriff and covetousnesse and we are not to judge according to the intent but according to the equity of the Law for equality to prevent the covetousnesse of Sheriffs and the oppression of the people then in this case if he shall have but 6 d. for every 20 s. for 200 l. he shall have no more for execution of 200 l. then if it were a 100 l. But I think this was not the intent of the Act. For the second point I take it that this Statute did not extend to Suits within Towns corporate and executions upon them for they are not at any great trouble for doing of execution within their Towns nor hazard But if a Sheriff does execution in a Town corporate then he shall have according to the Statute for it may be that the Prison is far distant And I upon the suddain conceive that this Proviso extends only to Towns corporate which are Counties Jones Iustice three questions have been made upon this Statute 1. For the nature of the action which the Sheriff is to have upon this Statute and for that it hath been many times resolved that he shall have an action of Debt for when a remedy is given by a Statute and no action is given by the same Statute wherby the penalty shall be recovered there he shall have an action of Debt 2. Who shall have the Fee when the Sheriff makes a Warrant to a Bayliff of a liberty the Bayliff of the liberty or the Sheriff The second branch of the second question is thaâ— when one Sheriff makes the extent and another Sheriff makes the Liberate who shall have the Fee 3. The third question hath been in debate in the Common Pleas and there was some opinion that if the summ be above a 100 l. and under 200 l. that the Sheriff shall have 12 d. for every 20 s. of the first 100 l. for otherwise the Sheriff shall have a lesse for execution of 199 l. then he shall have for 100 l. But if it be above 200 l. he shall have 6 d. ab initio My opinion on the suddain is that for every 20 s. of the first 100 l. he shall have 12 d. and for the residue he shall have 6 d. for every 20 s. and the other shall not be altered And for the second point I hold that this
will is wrong to him and the performance of Wills is much favoured because it is the last desire of the Partie who is dead and it is for the publick-weale because by this means debts shall be payd And many cases are within the equity of the Statute that are not within the letter as those Cases which have been put all which he agreed Jones Iustice on the sudden was against it and that this Case is not within the equity of the Statute of 4. E. 3. There are divers Actions which are not helped by this Statute as Trespasse for cutting of Trees Battery and the like for the Statute is de bonis Catallis asportat in vita testator An Executor shall have a Replevin of Goods taken in vita testator for by this he recovers the thing it selfe and shall have Detinue but shall not have treâ—passe for he cannot punish the wrong done in the life of the Testator The Statute of 4. E. 3. is much inlarged by equity as the cases which have been put and extend also to usurpation in the life time of the Testator as appears in Russels Case Co. lib 5. 32. 33. Eliz. in C. B. in the Bishop of Chichesters case that if the Testator dyes within 6 months after the usurpation the Executor shall have a Quare impedit And the Case of Trover and Conversion in vita Testator was maintained by Executors and it was so resolved 41. and 42. Eliz. in the Countesse of Rutlands Case in both the Benches because this is in nature of a Writ of Detinue Now for the Case in question I conceive that it is not within the Statute of 4. E. 3. because it is neither bona nor catalla Whitlock Iustice contra and that this Statute is very much taken by equity praeter literam though not contra literam But Nota that all agreed if it were upon an escape after Iudgement that the Action would lie by the Executors according to the Case of F. N. B. 121. a. But the principall Case was adjourned And afterwards Trin. 3. Car. It was argued again by Jermy for the Plaintiff and the sole point was A man taken by latitat and being in the custody of the Sheriff escape the Party at whose suit he was arrested dies whether his Executor shall have an Action upon the Case upon the Escape and he conceived that he might It hath been objected that it is a personall wrong and as an Action doth not lye against Executors upon an Escape in vita Testator so not by Execucutors To which I answer that it is not meerly personall but mixed with an interest At the Common-Law an Executor could not have trespas for Goods taken in vita Testator but yet he should have a Replevin 34. E. 3. Fitz. Avoury 257. and Executors 106. So at Common-Law a Successor should not have Trespas for Goods carried away in the life time of his Predecessor but he shall have a Replevin 9. H. 6. 25 but this was remedied by the Statute of Marlebridge cap. 28. and so upon the Statute of 4. E. 3. de bonis asportat c. Trover and Conversion hath beene adjudged within the said Statute for the Statute hath alwayes been liberally expounded 7. H. 4. 2. Fitz Executor 52. An Executor shall have ravishment of Gard taken away in vita Testator and also other Statutes which do not name Executors have beene eâ—pounded to extend to them as the Statute of 23. H. 8. which gives attaint 3. Eliz. Dyer 201. Co. lib. 6. 8. Executors shall take benefit of the pardon of Trin. 14 Jac. Pâ—obe and Maynes Case if the party escape being a rested upon mean Proces the Sheriffe is not liable for the Escape otherwise if upâ—n an Execution 43. Eliz. and 6. E. 6. Bendloes Reports which is cited there Executors shall have restitution upon the Statute of 21. H. 8. and Co. lib. 5. 31. and 27. Russels Case an Executor shall have Trover upon Goods lost in vita Testator and this is in manner and nature of a promise to have the party in Court at the day and it is cleer that upon an expresse Assumpsit to the Testator an Executor shal have an action upon the Case and it hath been in manner agreed by the Court that if it had been an escape of one in execution that the action would have lyen by the Executor and I see no difference between that and our case And it was adjourned The same Term in the same Court UPon an Information by Heath the Kings Attorney against two men of the County of Huntington in the name of all the County that they ought and used to repaire the Bridge of S. Eedes in the County of Huntington Issue was joyned by the County whether they ought and used to repaire this Bridge and the Attorney gave no evidence but put it upon the other side for he said by the Statute of 22. H. 8. cap. if it doth not appeare that any particular person or Towne ought to repaire a Bridge by reason of Tenure or otherwise that then the County where this is ought to repaire it But Nota that the issue was whether they ought to repaire the whole Bridge and yet upon the evidence it appeared that onely two Arches and a halfe of the Bridge was in the County of Huntington and two Aâ—â—hes and a halfe in the County of Bedford and the Iury found generally that onely two Arches and a halfe of the Bridge were in the County of Huntington and say nothing where the rest was for they could not find a thing in another County And also they found that the County of Huntington ought to repaire all but not that they used to repaire it And at another day Hedley Serjeant moved for the County that the Verdict was not good because the issue was whether they ought to repaire and a tempore cujus contrarium c. had repaired c. And the Iury hath found that they ought to repaire which is but the halfe of the issue and also they find that they ought to do it which is a Question in Law and therefore voyd 8. H. 6. 3. 4. Secondly the issue is whether they ought to repair the Bridge and the Iury hath found that they ought to repair two Arches and a halfe onely c. and the Bridge is an entire thing The Attorney answered that for the first exception the case of 27. Ass Pl. 8. is against it And for the last the very case of 43 Ass Pl. 37. is against it and therfore the Court conceived the Verdict good notwithstanding these exceptions Doderidge Iustice By the common Law before the Statute of 22. H. 8. if no man by reason of tenure or otherwise ought to repaire a Bridge the County ought to do it like to the case of 8. E. 4. Fishers by the Law of Nations may dry their Nets upon the Land of any man The same Term in the same Court DOctor
REPORTS AND CASES COLLECTED BY THE LEARNED SIR JOHN POPHAM KNIGHT Late LORD CHIEF-JUSTICE OF ENGLAND Written with his own hand in French and novv faithfully Translated into English To which are added some Remarkable CASES Reported by other Learned Pens since his death With an Alphabeticall Table wherein may be found the Principall Matters contained in this Booke LONDON Printed by Tho Roycroft for John Place and are to be sold at his Shop at Furnivals Inne Gate in Holborn 1656. TO THE READER Courteous Reader ALbeit the name of the Compiler of the greatest part of the ensuing REPORTS for Denominatio fit a parte majori meliori would be a sufficient invitation to any understanding Reader not only to cast his Eye upon but seriously to peruse them yet because these two Questions may and no doubt will and that upon good ground be made as 1. Why they should lye so long in private hands vvithout being exposed to the publique vievv 2. Why they should be now Printed To the first I answer That by the handsome composure and connexion of them it may and that very probably be conjectured that the honourable Compiler at first intended them for the publique but they after his death comming into private hands they who became possessors of them did rather intend their owne and their friends private knowledge and advantage by them then to let others communicate therein for it hath not formerly been neither yet is a thing unusuall for the great and learned Professors of the Law to ingrosse into their owne hands the best and most authentick REPORTS for their better help credit and advantage in the course of their practise which being unknown to other men they cannot upon sudden occasions be ready to make answer thereunto and that might be the reason why they have not been as yet published To the second I answer that the Copy out of which this Translation was made comming out of the Library of a reverend and Learned Sergeant at Law now deceased and said therin to be written with the proper hand-writing of the Lord POPHAM a good ground to conceive that it was Authentick the Gentleman in whose hands it was was earnestly importuned for the Copy that so it might be made publique to whose importunity there was at last a condâ—ssention so as such due care might be taken both in the Translation and Printing as not to prejudice the Author or the matter therein contained And whether that condition be fully performed shall be now left to the candid interpretation of the judicious Reader who cannot but know that some Errata's let the Printer or Correcter be never so carefull will follow the Presse but it is hoped that nothing materiall or substantiall is committed or omitted to the prejudice of the Work or of the Compiler thereof There is an addition of some later Cases in the time of King JAMES and the late King CHARLES which were taken by judicious Pens as will evidently appear by the Cases themselves and I dare say that whoever reads them will neither think his Time or Money mispent they being such as are well digested and very practicall I shall adde this one thing more that the principall end of this Edition is the advancement of knovvledge and to impart the good thereof to those who heretofore vvanted vvhat is hereby made publick vvhich may peradventure be a means to invite others more learned to publish other things of the like nature for the benefit of Students and Professors of the Lavv. THE NAMES OF THE PRINCIPALL CASES and other CASES vouched in this BOOKE P. Stands for Principall Case B. Stands for Avouched Case A Â fol. ARton and Hares case 97p Arthur Johnsons case 106p Austins case 183b Arnold and Dichtons case 183p Austen and Monks case 186p Audâ—ey and Joices case 176b Abbingtons case 196b Arrunstels case 201b B LOrd Burleighs case 26b Bullock and Diblers case 38p Burtons and Wrightmans case 56p Baynes case 84p Butler and Bakers case 87p Burtons case 100p Baskervill and Brooks case 132p Brett and Cumberlands case 136p Bennet and Westbechs case 137p Sir Baptist Hixe case 130p Bernard and Beales case 146p Brabin and Tradurus case 140p Blaxton and Heaths case 145p Sir John Bingleys case 147p Bowyer and Rivets case 153p Bowry and Wallingtons case 159p Block and Harris case 168b Brole and Michels case 173b Bidles case 179b Sir William Burtons case 180p Beven and Cowlings case 183p Barker and Ringroses case 184p Buffeild and Byburos case 188p Brokesbyes case 189b Brookes case 125p Sir Robert Browne and Sir Robert Strowds case 198p Bell and Stranguryes case 203b Bagnols case 206p C CRocker and Dormars case 22p Caesar and Curtines case 35p Callard and Callards case 47p Cawdry and Attons case 59p Case of Armes 1â—1p Cowper and Smiths case 128p Lord Chandos and Scullers case 145b Constable and Cloberys case 161p Challoner and Mores case 167b Chamberlains case 185b Calf and Neiols case 185p Cadmor and Hildersons case 186b Chambers case 202p Crab and Tookers case 204p Caryes case 207p D DAcres and Culpeppers case 19b Davies and Gardiners case 36p Dillon and Fraines case 70p Dabridgcourts case 85b Dickenson and Greenhows case 156p Day and Drakes case 170b Dabborn and Martins case 177p Drope and Theyars case 178p Dickar and Molands case 200p Desmond and Johnsons case 201b E EArl of Bedfords case against Russell 3p Sir Francis Englesfields case 18p Edwards and Halinders case 46p Earl of Shrewsbury and Sir Tho. Stanhops case 66p Eton and Monnys case 98p Everets case 107p Earl of Pembroke against Sir Henry Barkley 116p Earl of Shrewsburys case 132p Earl of Northumberland and Dewels case 141p Empson and Bathirsts case 176b F FEnner and Fishers case 1p Sir Moile Finches case 2â—p Forth and Halboroughs case 39p Finch and Riseleys case 53p Sir Moile Finch and Frogmortons case 53b Fulwood and Wards case 86p Fennors case 109p Fulcher and Griffins case 140p Foster and Taylors case 196p G GIbbons and Maltyards case 6p Gravener and Brookes case 32p Geilles and Rigewayes case 41p Greenhingham Heydons case 98p Goodale and Wyats case 99p Glover and Humbles case 120b Gouldwels case 131p Godfrey and Owens case 148p Gilbert and Hoptons case 152p Gores case 173b Goodwin and Willoughbys case 177p Giffords case 186b Goldsmith and Goodwyns case 186b Sir Henry Gemhams case 144p Goods case 211p H HUnt Gotelers case 5p Hayes Allens case 13p Haycock Warnfords case 24p Hughes Robothams case 30p Humble and Olivers case 55p Halâ— Pearts case 60p Harry and Farceys case 61p Sir Rowland Heywards case 95p Herbin Chards case 96p Hall Arrowsmiths case 105p Holme Gees case 112p Havengate Hares case 126. 147p Harlo Wards case 127b Hare Brickleys case 128b Hide and Whistlers case 146p Hodges and Mores case 164p Hemdon and Crowches case 167b Holcome and Evans case 169b Hobs and Tadcasters case 186b Hord Paramours case 201b Higgs case 201b
shall so descend or come to John without any act or thing done or to be done by him to the contrary wherby also it fully appeareth that the assurance of the said John shall stand for all this Land upon the Covenant and not upon any use which was to be altered or changed by it But if an Vse may change by the Mannor upon the consideration yet it shall not change to the said John or his Issues untill the death of the said Sir Francis without Issue Male because that untill that happen if the said John had been living he had not had any Vse because it is that he shall have the Land then if he be then living and if it shall not be in him untill this time it shall not be in his Son untill Sir Francis be dead without Issue for it is if the said John or any Issue Male of his body c. be then living then it shall descend come or remain c. so that it doth not come to them untill it may appear whether the said John or any Issue Male of his body upon the body of the said Margaret be in rerum natura when Sir Francis shall be dead without Issue Male and therfore it yet remains upon a contingent whether the use shall be to the Heirs Males of the body of the said John if it shall be said that it is an Vse and therfore in the mean time the entire Fee-simple remains in Sir Francis not yet changed but for the Estate tail it self in himself if any change shall be as appeareth before that it shall not be and therfore by the attainder of the said Sir Francis the whole Fee-simple is now all forfeited to the Queen before that the use may be to the Heirs Males of the body of the said John And the Queen shall not come to this Land in any privity by the said Sir Francis but in the Post by the Escheat and therfore the possession of the Queen now or of her Patentee shall never be changed with this Vse which shall never be carried out of any other possession but such which remaineth in privity untill the use is to come in Esse no more now then as it might at common Law before the Statute of Vses 27 H. 8. And this as to the future Vse was the opinion of Popham and some other of the Iustices And nota 21 H. 7. plito 30. If a man covenant in consideration of the Marriage of his Son that immediatly after his death his Land shall evert remain or descend to his Son to him and the Heirs of his body or to him and his Heirs for ever that this is but a bare Covenant and doth not change any Vse And what diversity then is there in the case of Sir Francis Englefield who covenants that it shall descend or remain in possession or revert And as it seems the great difficulty which was in the case of Sir Robert Constable which was put by Gerard Attorney-generall 6 Eliz. and it appeareth in Dyer 1. Mar. was because that the Covenant was that it shall be to the Son in possession or use which for the incertainty in as much as it was in them to leave the one or the other or perhaps the Estate of their Land was such that part was in possession and part in use and therfore according to the intent taken rather for a Covenant then for matter sufficient to change the use But it was so that it was never helped by any right which he had but by the grace of the Queen he enjoyed it Easter Term 35 Eliz. Crocker and York versus Dormer 1. UPon a Recovery had by John Crocker and George York against Geffrey Dormer in a Writ of Entry in the Post of the Mannor of Farningho with the Appurtenances and of 6 Messuages 6 Cottages c. in Farningho and of a yearly Rent or pension of 4 Marks issuing out of the Church or Rectory of Farningho and of the Advowson of the Church of Farningho in the County of Northampton William Dormer Son and Heir of the said Geffrey brought a Writ of Error and assigned diverse Errors 1. Because that â—uch a form of Writ doth not lye of an Advowson but only a Right of Advowson Darrein presentment and Quare impedit 2. Because he demands the Advowson of the Rectory and also a Rent issuing out of the same Rectory 3. Because the Demand for the Rent is in the Disjunctive to wit a Rent or a Pension 4. Because it is a pension wheras a Pension is not sutable in our Law but in the Spirituall Court To which Gawdy said that there is a great diversity between a common Recovery which is an assurance between parties and a Recovery which is upon Title for a common Recovery is to an Vse to wit to the use of him against whom it is had if no other use can be averred and therfore as to the Vse it is to be guided according to the intent of the parties and by a common Recovery had against Tenant for life he in the Reversion if he be not party or privy to it may enter for a forfeiture as it was adjudged very lately in the Exchequer by the advice of all the Iustices in the case of a Recovery had against Sir William Petham Knight and in all these things it is otherwise in case of a Recovery upon Title and therfore in as much as this common Recovery is but a common Assurance between parties and is alwaies by assent between parties to the end that they may make assurance from one to another there shall be and alwaies hath been a contrary exposition to a Recovery which is by pretence of Title and it hath been common to put in such Recoveries Advowsons Commons Warrens and the like and yet alwaies allowed And if this shall be now drawn in question infinite Assurances shall by this be indangered which the Law will not suffer and therfore the demand of an Advowson and Pension in the Writ of Entry makes not the Writ vitious as it shall do in another Writ of Entry founded upon a Title and not upon an Assurance And as to that that the Rent and the Advowson also is demanded this is good because the Advowson is another thing then the Rectory it self out of which the Rent is demanded to be issuing And for the disjunctive demand of the Rent or Pension it makes no matter in this case because it is a common Recovery in which such a precise form is not necessary to be used as in other Writs and also a Pension issuing out of a Rectory is the same with the rent To which Clench and Fennor agreed in all but Popham moved that the greatest difficulty in this case is the demand made to the disjunctive to wit of the annuall Rent or Pension for if a Pension issuing out of a Rectory shall be said to be a thing meerly spirituall and not to be demanded by our
Law or meerly of another nature then the Rent it self with which it is conjoyned by the word or then it is erroneous for albeit a common Recovery be now a common assurance of Land past by the assent of parties and therfore hath another conservation then that which passeth by pretence of Title yet we are not to omit grosse absurdities in such common Recoveries as to demand an acre of Land or Wood in the Mannor of Sale or Dale or black acre or white acre these are not good in common Recoveries because there is no certainty in the demand which of them the party is to recover which kind of absurdity is not to be admitted in these Recoveries for this is but a meer ignorance in the Law and the Ministers of it And to this Gawdy and the other Justices agreed but they sayd that a Pension issuing and a Rent shall be taken for all one for if a man grant a Pension of 20 s. a year issuing out of the Mannor of D. or of the Rectory of S these are Rents issuing out of them and if the demand had been of an annuall Rent or Annuity of 20 s. a year issuing out of the Rectory this had been good To which Popham agreed and yet sayd if it had been an annuall Rent of 20 s. c. or of an Annuity of 20 s. it had nof been good because that the word issuing is not referred to the Annuity but to the Rent only and therfore are meerly generall and not as the same but if the demand were of an annuity rent or payment of 20 s. issuing out of a Rectory it is good for this is but one and the same Then it was alledged that notwithstanding that which appears to the Court it cannot be taken that this was a common Recovery for upon the assignment of the Error it is not averred that it was a common Recovery to which Popham said that common Recoveries are such common Assurances to all persons that are well known to all and especially to us that they need not be averred for they are known by certain Marks to wit by the voluntary entry into the Warranty the common Voucher and the like And at last they all agreed that the Iudgment shall be affirmed 2. In Wast by Thomas Haydock against Richard Warnford the case was this One Michael Dennis was seised in his Demesne as of Fee of the third part of a Messuage and of certain Lands in Bury Blunsden in the County of Wilts and being so seised the last of April 9 â—liz demised them to Susan Warnford for 41. years from the Feast of S. Michael the Arch-angel then next ensuing who assigned this over to Richard Warnford after which the said Michael Dennis by bargain and sale enrolled according to the Statute conveyed the Reversion to John Simborn Esquire and his Heirs the said Iohn being then seised of another third part therof in his Demesne as of Fee after which to wit the first day of Iune 17 Eliz. the said Iohn Simborn demised the said third part which was his before his said purchase to the said Richard Warnford for 21 years then next ensuing and afterwards the said Iohn Simborn died seised of the Reversion of the said two parts and this descended to Barnaby Simborn his Son and next Heir who the 20 of Iune 28 Eliz. by bargain and sale enrolled according to the Statute conveyed be Reversion of the said two parts to the said Thomas Haydock and his Heirs after which the said Richard Warnford committed Wast in the said house wherupon the said Thomas Haydock brought an action of Wast against him according to the said two severall Leases and assigned the Wast in suffering the Hall of the price of 20 l. a Kitchin of the price of 20 l. and so of other things to be uncovered wherby the great Timber of them became rotten and so became ruinous to the disinherison of the Plaintiff and upon a Nihil dicit a Writ was awarded to enquire of Damages in which it was comprised that the Sheriff shall go to the place wasted and there enquire of the said Damages who returned an inquisition taken therof at Bury Blunsden without making mention that he went to the place wasted and that it was taken there wherupon Iudgment was given in the common Bench that the said Plaintiff shall recover his Seisin against the Defendant of the said places wasted with their Appurtenances Per visum Iurator Inquisitionis predict damna sua occasione vastâ— in eisdem locis in triplo secunâ—uÌ„ formam statuti c. And upon this a Writ of Error was brought in the Kings Bench and there by all the Iustices it was agreed that it was but Surplusage to comprehend in the Writ of enquiry of Damages that the Sheriff shall go to the place wasted and there enquire of the Damages in as much as by the not denying therof the Wast is acknowledged and therfore he need not go to the place wasted But where a Writ is awarded to enquire of the Wast upon default made at the grand Distresse there by the Statute of West 2. cap. 24. the Sheriff ought to go in person to the place Wasted and enquire of the Wast done and therfore in that case it is needfull to have the clause in it that the Sheriff shall go to the place wasted and there enquire of it for by the view the Wast may be the better known to them but where the Wast is acknowledged as here that clause need not and albeit it be comprehended in the Writ yet the Sheriff is not therby bound to go to the place wasted and to enquire there but he may do it at any place within his Bayliwick where he will and therfore it is no error in this point And they agreed also that the Wast is well assigned in the entire Hall c. although the Action were brought but upon the Demises of two third parts of it and it cannot be done in these parts but that it is done in the whole and also it cannot be done in the whole but that it is also done in the three parts but yet the doing therof is not to the disinheritance of the Plaintiff but in these two third parts and therfore no error in this manner of assigning of the Wast And they also agreed that the Action is well brought upon these severall Demises because neither the interest of the Term nor of the Inheritance was severed nor divided to severall persons at the time of the doing of the Wast but the two Terms in the one to wit in Warnford and the Inheritance of these immediatly in the other to wit in Haydock And by Popham also the thing in which the Wast is assigned is one and the same thing and not diverse to wit a Messuage and therfore by Brudnell and Pollard 14 H. 8. 10. if severall Demises are made of one and the same Messuage by one and the same person as
and also in pleading he ought to aver the life of the Lessee or otherwise the contents of the thing according to the limitation But where that which was the Limitation cometh by a Proviso after the Habendum which distinguisheth the sentence as here there because it it is a matter distinct and subsequent from the Habendum and not annered to it he need not to speak of it but there it shall alwaies come in to be shewn of the other part and this is the usuall and common case of difference for pleading but this makes no difference of the Estate And therfore if an Obligation be made with a Condition endorsed the Plaintiff in debt upon it doth not speak of the Condition in his Count but if the Condition be precedent or stands comprised within the body of the Obligation then he ought to speak of it in his Count as appeareth by 28 H. 8. where a man was bound in twenty quarters of Malt to be paid at such a day and if he fail that he shall pay forty quarters at such a day if he demand the forty quarters in his count he ought to shew the default of payment of the twenty quarters at the day limited for it and yet the Condition that is out of and that which is comprehended within the Obligation are but as one for the substance but for the form it differs as to the pleading which form ought to be observed Another reason is in this case because that the payment of the Rent is limited to â—â— made at the receit of the Exchequer in which case if it had been 〈…〉 had been entred of Record and not being so the default appeareth oâ— Record and where the default appeareth of Record there needs no Office for â—â— shall be in vain to make that to appear upon Record by Office which 〈◊〉 appeareth of it self by Record and therfore in 4. and 5. 〈…〉 Mary it appeareth where Sir John Savage was Sheriff of the 〈…〉 Fee and that he was indited of two severall voluntary 〈…〉 and for not keeping of his Turn in loco consueto upon two 〈…〉 removed into the Kings Bench in 8 H. 8. upon the motion of the 〈…〉 generall the Office was seised into the Kings hand without Scire facias or any Inquisition found therof and as appeareth 3 Eliz. One Bâ—ake who by Patent was the Kings Remembrancer in the Exchequer being made one of the Bâ—rons of the same Exchequer the other Office was ipso facto â—one and determined there need no inquisition to be made of it nor Scire facias to avoid it because the taking of the Office of a Baron is of Record And a man cannot be a Iudge and a Minister in one and the same Court and therfore the first Office is determined by taking of the second and there need no Office to be found of it the matter it self being apparant upon Record and therfore as it appeareth it was adjudged in 13 H. 8. that a new Patent of the same Office of Remembrancer making recitall of the former Patent which appeared as before upon Record to be void with a clause Quod post mortem sive determinationem c. therof the new Grant shall take effect was void And Englefields case was lately adjudged in the Exchequer and at the Parliament 35 Eliz. allowed to be good Law by all the Iustices there being where the Queen had a Condition given to her by forfeiture upon an Attainder of Treason to be performed by the payment of a summ of money or the like If the Queen makes a Warrant by Patent to one to perform the Condition and to return his proceedings therupon into the Exchequer who performs it accordingly and therupon returns all that he hath done with his Warrant into the Exchequer no Office need to be found of the performance of the Condition because that by the return which is warranted by the Patent the Condition appeareth sufficiently upon Record to be performed and therfore no Office need to be found no more of the not-payment in this case It hath been said by some that it may be that the Patentee hath tendred the Rent at the receit and that they would not receive or record the receit of it and that then it should be hard that he should loose his Lease no default being in him to which I say suppose a man be bound to make his appearance in any of the Kings Courts may he say that he appeared there according to the Obligation excuse himself by such bare averment therof unlesse his appearance be entred of Record It is cleer that he cannot as appeareth by 18 E. 4. for appearance in a Court of Record is not unlesse it be of Record yet it may be said that then the case may be had to the party as if the Officer will not record his appearance which is the same mischief as in this case but this will not help him for first the Law presumes that every Officer wil be indifferent betwixt party and party and upon this opinion had of him he is admitted to his Office wherupon the Law presumes that if the party would have appeared that the Officer would have recorded it and in as much as he did not do it it shall be taken that he did not appear But the strongest reason in the case is this to wit if default be not in the party to do that which he ought to do but in the Officer to do that which belongeth to his Office as to record that which he ought to record there the Officer shall be chargable to the party in an Action upon the case to answer him so much in Damages as he hath sustained by such default of the Officer and the Law will put the party rather to such a recovery then to answer it by a bare matter of averment which ought to be of Record And further such a voluntary default may be a forfeiture of his Office and so a sufficient penalty in case of an Officer And to say that the Office of Receit is not an Office of Record is too absurd for it is a principall member and part of the Court of Exchequer and as wel of Record for the matters belonging to it as the Offices of the Pipe and Remembrancers are for those things which belong to them and the Records of Receit as well inrolled in Rolls of Parchment as any other Records of the Queen in this or any other Court it is commonly used now to convey Reversions Remainders to the Queen with a Proviso to be void upon payment of a certain sum of mony to the Queen at the receit of the Exchequer it is as usual upon payment made there to have it back again without office found of this paym and what is the reason of it now but because the paym there is alwaies entred upon Record therfore no Office needs make this paym to appear upon Record And
such Estates that the Law allows them to be good against the Lords themselves they performing their Customs and Services and therfore are more commonly guided by the guides and rules of the common Law and therfore as appeareth in Dyer Tr. 12. Eliz. Possessio fratris of such an Estate facit sororem esse haeredem And to say that Estates of Copyhold Land are not warranted but by custom and every Custom lies in Vsage and without Vsage a Custom cannot be is true but in the Vsage of the greater the lesser is alwaies implyed As by Vsage three lives have been alwaies granted by Copy of Court Roll but never within memory two or one alone yet the grant of one or two lives only is warranted by this Custom for the use of the greater number warrants the lesser number of lives but not è converso And so Fee-simples upon a Limitation or Estates in tail are warranted by the equity of the Statute because they are lesser Estates then are warranted by the Custom and these lesser are implyed as before in the greater and none will doubt but that in this case the Lord may make a Demise for life the Remainder over in Fee and it is well warranted by the Custom and therfore it seems to them that it is a good Estate tail to John Gravenor and a good Remainder over to Henry his Brother and if so it follows that the Plaintiff hath a good Title to the Land and that Iudgment ought to be given for him And for the dying seised of Elizabeth they did not regard it for she cannot dye seised of it as a Copyholder for she had no right to be Copyholder of it And by the dying seised of a Copyholder at common Law it shall be no prejudice to him who hath right for he may enter But here in as much as she cometh in by admittance of the Lord at the Court her Occupation cannot be fortious to him and therfore no descent at common Law by her dying seised for it was but as an Occupation at Will But if it shall not be an Estate tail in John Gravenor as they conceive strongly it is yet for the other causes alledged by Gawdy and Clench Iudgment ought to be given for the Plaintiff and the Remainder which is not good shall not prejudice the Fee-simple conditionall granted to John which is no more then if the Surrender had been to the use of Iohn Gravenor and his Heirs the Remainder over because that we as Iudges see that this cannot be good by Law and therfore not to be compared to the case where the Custom warrants but one life and the Lord grants two joyntly or successively there both the one and the other is void And this is true because the custom is the cause that it was void and not the Law and also it is a larger Estate then the Custom warrants which is not here and upon this Iudgment was given that the Plaintiff shall recover And by Popham it hath been used and that upon good advice in some Maâ—nors to bar such Estates tails by a common Recovery prosecuted in the Lords Court upon a Plaint in nature of a Writ of Entry in the Post 2. JUlius Cesar Iudge of the Admiralty Court brought an Action upon the Case for a Slander against Philip Curtine a Merchant-stranger for saying that the said Cesar had given a corrupt Sentence And upon not guilty pleaded and 200. marks Damages given it was alledged in arrest of Iudgment where it was tryed by Nisi prius at the Guildhall by a partiall Inquest because that upon the default of strangers one being challenged and tryed out a Tales was awarded De circumstantibus by the Iustice of Nisi prius wheras as was alledged a Tale could not have been granted in this case for the Statute of 35 H. 8 cap. 6. which give the Tales is to be intended but of commontryals of English for the Statute speaks at the beginning but of such Iuries which by the Law eught to have 40 s. of Free-hold and wills that in such cases the Venire facias ought to have this clause Quorum quilibet habeat 40 s. in terris c. which cannot be intended of Aliens which cannot have Free-hold And it goes further that upon default of Iurors the Iustices have authority at the Prayer of the Plaintiff or Defendant to command the Sheriff or other Minister to whom it appertaineth to make a return of such other able persons of the said County then present at the same Assises or Nisi prius which shall make a full Iury c. which cannot be intended of Aliens but of Subjects and therfore shall be of tryals which are onely of English and not of this Inquest which was part of Aliens And further the Tales was awarded only of Aliens as was alledged on the Defendants part but in this point it was a mistake for the Tales was awarded generally de circumstantibus which ought alwaies to be of such as the principall Pannell was But Per Curiam the exceptions were disallowed for albeit the Statute is as hath been said yet when the Statute comes to this clause which gives that a Tales may be granted by the Iustices of Nisi prius and is generally referred to the former part of the Act for it is added Furthermore be it enacted that upon every first Writ of Habeas Corpora or Distringas with a Nisi prius c. the Sheriff c. shall return upon every Juror 5 s. Issues at the least c which is generall of all And then it goes further And wills that in every such Writ oâ— Habeas Corpora or Distringas with a Nisi prius where a full Jury doth not appear before the Justices of Assise or Nisi prius that they have power to command the Sheriff or other Minister to whom it appertains to nominate such other persons as before which is generall in all places where a Nisi prius is granted and therfore this is not excepted neither by the Letter nor intent of the Law And where it is said such persons by it is to be intended such as the first which shall be of Aliens as well as English where the case requires it for expedition was as requisite in cases for or against them as if it were between other persons And Aliens may well be of the County or place where the Nisi prius is to be taken and may be there for although an Alien cannot purchâ—se Land of an Estate of Free-hold within the Realm yet he may have a house for habitation within it for the time that he is there albeit he be no Denison but be to remain there for Merchandise or the like And by Gawdy where the default was only of strangers the Tales might have been awarded only of Aliens as where a thing is to be tryed by Inquest within two Counties and those of the one County appear but not those of the other the
Defendant had nothing to do there the Defendant shall be excused But here it is expresly alledged that it fell by the weight put upon it which ought to be answered As if a man take an Estate for life or years in a ruinous house if he pull it down he shall be charged in Wast but if it fall of it self he shall be excused in Wast so there is a diversity where default is in the party and where not so here the Defendant ought to have taken good care that he did not put upon such a ruinous floor more then it might well bear if it would not bear any thing he ought not to put any thing into it to the prejudice of a third person and if he does he shall answer to the party his damages Collard versus Collard 5. IN an Ejectione firmae brought by Constantine Collard against Richard Collard the case appeared to be this Thomas Collard was seised in his Demesne as of Fee of Lands in Winkle in the County of Devon called the Barton of Southcote And having two Sons to wit Eustace the eldest and Richard the now Defendant the youngest and the eldest being to be married the said Thomas in consideration of this marriage being upon the said Barton said these words Eustace stand forth I do here reserving an Estate for my own life and my wives life give unto thee and thy Heirs for ever these my Lands and Barton of Southcote after which the said Thomas enfeoffed his youngest Son of Barton with warranty from him and his Heirs the eldest Son enter and let it to the Plaintiff upon whom the Defendant re-enter upon which re-entry the Action was brought and upon a speciall Verdict all this matter appeared But it was not found by the Verdict that the said Thomas Collard the Father was dead and therfore the Warranty was not any thing in the Case And it was moved by Heale that the Plaintiff ought to be barred because it did not passe by way of Estate in as much as a man cannot passe a Freehold of a Land from himself to begin at a time to come and by it to create a particular Estate to himself and in use it cannot passe because that by a bare parole and Vse cannot be raised and by giving my Land to my Son Cosin and the like nothing will passe without Livery for there is not consideration to raise an Vse Fennor The words shall be taken as if he had said here I give you this Barton reserving an Estate for my life although the words of reservation have priority in their time from the speaking of them because a reservation cannot be but out of a thing granted and therfore the reservation shall be utterly void or otherwise ought to be taken according to their proper nature to wit to be in their operation subsequent and so shall not hurt the Grant and therfore are not to be compared to the case where a man grant that after the death of I. S. or after his own death a stranger shall have his Land which Popham granted And Fennor said further that these words being spoken upon the Land as before amount to a Livery Gawdy said That the words as they are spoken amount to a Livery if the words are sufficient to passe the Estate but he conceived that the words are not sufficient to make the Estate to passe to the said Eustace because his intent appeareth that Eustace was not to have the Land untill after the death of him and his wife and therfore of the same effect as if he had granted the Land to the said Eustace after his death and as an Vse it cannot passe because by a bare word an Vse cannot be raised as appeareth in divers Reports Mich. 12 13 Eliz. which is a good case to this purpose But to say generally that an Vse cannot be raised or charged upon a perfect Contract by words upon good consideration cannot be Law and therfore it is to be considered what the Law was before the Statute of 27 H. 8. And I thinke that none will deny but that by grant of Land for money before this Statute an Vse was raised out of the same Land for a bargain and sale of Land for money and a grant of Land for money is all one and no difference between them And is not a grant of Land made in consideration of marriage of my Son and Daughter as valuable as a grant of it for money It is cleer that it is and much more valuable as my blood is more valuable to me then my money and therfore it is absurd to say that the consideration of money raise or change an Vse at Common Law and not such a consideration of marriage And in such a case at Common Law there was not any diversity that the party who so grant or hargain for the one or the other considerations was fâ—ised of the Land granted or bargained in use or possession but that the Vse by the Contract was transferred according to the bargain in both cases where there is a consideration And where through all the Law shall it be seen that of any thing which might passe by contract there need any other thing then the words which make the contract as writing or the like testifying it And that the Law was so it appeareth by the Statute of Inrolements of bargains and sales of Land made 27 H. 8. which enacts that no Freehold nor Vse therof shall passe by bargain and sale only unlesse it be by deed indented and enrolled according to the Statute Ergo if this Statute had not been it had passed by the bargain and sale by bare words and in as much as the Statute enacts this in case of bargain and sale only the other cases as this case here are as it was before at Common Law And by an exception at the end of the same Statute London is as it was at Common Law and therfore now Lands may passe there at this day by bargain and sale by word without deed for it is out of the Statute And how can we say that the Statute of Vses does any thing to alter the Common Law in this point by any intent of the makers therof wheras at the same Parliament they made an especiall Law in the case of bargain and sale of Lands And at this day for the Lands in London notwithstanding the Statute of Vses the Law hath been put in practice and alwaies holden as to the Lands there to be good if sold by bare Parole as it were at Common Law And I have heard it reported by Manwood late chief Baron of the Exchequer that it was in question in the time of King Edw. the 6th whether the use of a Freehold of Land will passe upon a Contract by Parole without Deed in consideration of marriage upon which all the then Iustices were assembled upon a doubt rising in a case hapning in the Star-chamber and then
resolved by all the Iustices as he said that it shall passe and he said that himself was of this opinion also And to say that by grant of Land at Common Law the use had been raised out of the possessions of the Land which the Grantor then had and by it passe to the Bargainee and that it shall not be raised and passed to another by grant of Land in consideration of marriage which is a more valuable consideration then money is absurd and against all reason And for the solemnity Vses in such cases in respect of marriage were the cause that they alwaies were left as they were at Common Law and not restrained as the case of bargain and sale is which by Common intendment may be made more easily and secretly then that which is done in consideration of marriage which is alwaies a thing publike and notorious but it is not reasonable that every slight or accidentall speech shall make an alteration of any Vse As if a man ask of any one what he will give or leave to any of his Sons or Daughters for their advancement in marriage or otherwise for their advancement this shall be but as a bare speech or communication which shall not alter or change any Vse But where there is upon the Speech a conclusion of a Marriage between the friends of the parties themselves and that in consideration therof they shall have such Lands and for such an Estate there the Vse shall be raised by it and shall passe accordingly to the parties according to the conclusion which Fennor granted But by Popham If it may be taken upon the words spoken that the purpose was to have the Estate passe by way of making of an Estate as by way of Feoffment c. then notwithstanding the consideration expressed the use shall not change nor no Estate by it but at will untill the Livery made therupon And therfore if a man make a Deed of Feoffment with expresse consideration of marriage although the Deed hath words in it of Dedi Concessi with a Letter of Attorney to make Livery therupon there untill Livery made nothing passe but at will because that by the Warrant of Attorney it appeareth the full intent of the parties was that it shall passe by way of Feoffment and not otherwise if it be of Land in possession And if it be of Land in Lease not untill Attornment of Tenants which was granted by all the Iustices But if a man in consideration of money makes a Deed of Gift Grant Bargain and Sale of his Lands to another and his Heirs by Deed indented with a Letter of Attorny to make Livery if Livery be therupon made before Inrolement there it hath been adjudged to passe by the Livery and not by the Inrolement But by Popham where Land is to passe in possession by Estate executed two things are requisite The one the grant of the said Land the other the Livery to be made therupon for by the bare Grant without Livery it doth not passe as by way of making of an Estate And this is the cause that such solemnity hath been used in Liveries to wit if it were of a Messuage to have the people out of it and then to give Seisin to the party by the Ring of the door of the House and of Land by a Turff and a Twig and the like which may be notorious Yet I agree it shall be a good Livery to say to the party Here is the Land enter into it and take it to you and your Heirs for ever or for life or in tail as the case is And albeit Livery by the View may be made in such manner yet by the sealing of the Deed of Grant upon the Land or by grant of it upon the Land without Livery nothing passe but at will But if therupon one party saith to the other after the Grant or upon it Here is the Land enter upon it and take it according to the Grant this is a good Livery But he ought to say this or somthing which amounts to so much or otherwise it shall not passe by the bare Grant of the Land although it be made upon the Land Clench said That when Thomas said to Eustace Stand forth here I do give to thee and thine Heirs these Lands this amounts to a Grant and a Livery also and by the words of the Reservation of the Estate to himself and his wife for their lives in this the Law shall make an use in the said Thomas and his wife for their lives so that by such means it shal enure as if he had reserved the use therof to him and his wife and so it shall enure to them as it may by the Law according to his intent without doing prejudice to the Estate passed to the said Eustace And afterwards Term Mich. 36 37 Eliz. the Case was again disputed amongst the Iustices and then Popham said That the Case of Baâ—gains and Sales of Lands in Cities as London c. as appeareth in Dyer 6. Eliz. are as they were at Common Law To which all the Iustices agreed and therfore shall passe by Bargain by parole without writing And by Bayntons Case in 6 7 Eliz. it is admitted of every side that an Vse was raised out of a Possession at Common Law by Bargain and Sale by parole and otherwise to what purpose was the Statute of Inrolements and by the same case it is also admitted now to passe by parole upon a full agreement by words in consideration of Marriage or the continuance of Name or Blood For it is agreed there that the consideration of nature is the most forceable consideration which can be and agreed also that a bare Covenant by writing without consideration will not change an Vse therfore the force therof is in the consideration of which the Law hath great respect And therfore the Son and Heir apparant ex assensu patris onely may at the door of the Church endow his wife of his Fathers Land which he hath in Fee and this is good by Littleton although the Son hath nothing in it wherby an Estate passe to the wife which is more then an Vse Nature is of so strong consideration in the Law And therupon after advice Iudgment was given for the Plaintiff the Roll of this appeareth in Banco Regis 1 Hill 35. Eliz. Rot. 355. And upon this Iudgment a Writ of Error was brought and the Iudgment aforesaid reversed in the point of Iudgment in the Exchequer by the Statute of 27 Eliz. Kettle versus Mason and Esterby 6. IN a second deliverance between Joh. Kettle Plaintiff and George Mason Vide this case Coke lib. 1. 146 c. and Francis Esterby Avowants the case appeared to be this Thomas May was seised of the Mannor of Sawters and Hawlin in the County of Kent in his Demesne as of Fee and being so therof seised enfeoffed Thomas Scot and John Fremling and their Heirs
to the use of Dennis May his Son and Heir apparant and his Heirs upon condition that the said Dennis and his Heirs should pay to one Petronell Martin for his life an annuall Rent of 10 l. which the said Thomas had before granted to the said Petronell to begin upon the death of the said Thomas And upon condition also that the said Thomas upon the payment of 10 s. by him to the said Feoffees or any of them c. might re-enter After which the said Thomas May and Dennis by their Deed dated 30. May 19 Eliz. granted a Rent-charge out of the said Mannor of 20 l. a year to one Anne May for her life after which the said Thomas May paid the said 10 s. to the said Feoffees in performance of the Condition aforesaid and therupon re-entred into the Land and enfeoffed a stranger And whether by this the Rent were defeated was the question And it was mooved by Coke Attorney-generall that it was not but that in respect that he joyned in the part it shall enure against the said Thomas by way of confirmation which shall bind him as well against this matter of Condition as it shall do against any Right which the said Thomas otherwise had And therfoâ—e by Littleton If a Disseisor make a Lease for years or grant a Rent-charge and the Disseisor confirm them and afterwards re-enters albeit Lit. there makes a Quaere of it yet Cook said That the Disseisor should not avoid the Charge or Lease which was granted by the whole Court And by him the opinion is in P. 11. H. 7. 21. If Tenant in Tail makes a Feoffment to his own use upon Condition and afterwards is bound in a Statute upon which Execution is sued and afterwards he re-enter for the Condition broken he shall not avoid the Execution no more the Rent here Fennor agreed with Cook and said further That in as much as every one who hath Title and Interest have joyned in the Grant it remains perpetually good And therfore if a Parson at Common Law had granted a Rent-charge out of his Rectory being confirmed by the Patron and Ordinary it shall be good in perpetuity and yet the Parson alone could not have charged it and the Patron and Ordinary have no Interest to charge it but in as much as all who have to intermeddle therin are parties to it or have given their assent to it it sufficeth Gawdy was of the same opinion and said That there is no Land but by some means or other it might be charged and therfore if Tenant for life grant a Rent-charge in Fee and he in the Reversion confirm the Grant per Littleton the Grant is good in property so here To which Clench also assented but Popham said That by the entry for the Condition the Charge is defeated And therfore we are to consider upon the ground of Littleton in his Chapter of Confirmation to what effect a Confirmation shall enure and this is to bind the right of him who makes the Confirmation but not to alter the nature of the Estate of him to whom the Confirmation is made And therfore in the case of a grant of a Rent-charge by the Disseisor which is confirmed by the Demisee the reason why the Confirmation shall make this good is because that as the Disseisee hath right to defeat the right and the Estate of the Disseisor by his Regresse in the same manner hath he right therby to avoid a Charge or a Lease granted by the Disseisor which Right for the time may be bound by his confirmation But when a man hath an Estate upon condition although the Feoffor or his Heirs confirm this Estate yet by this the Estate is not altered as to the Condition but it alwaies remaineth and therfore Nihil operatur by such a confirmation to prejudice the Condition And so there is a great diversity when hewho confirmeth hath right to the Land and where but a Condition in the Land And by him if a Feoffee upon condition make a Feoffment over or a Lease for life or years every one of these have their Estates subject to the Condition and therfore by a Confirmation made to them none can be excluded from the Condition And the same reason is in case of a Rent granted by a Feoffor upon Condition it is also subject to the Condition and therfore not excluded from it by the Confirmation as it shall be in case of a Right And to prove this diversity suppose there be Grand-father Father and Son the Father disseise the Grand-father and makes a Feoffment upon Condition and dies after which the Grand-father dies now the Son confirms the Estate of the Feoffee by this he hath excluded himself from the Right which descended to him by his Grand-father but not to the Condition which descended to him from his Father And of this opinion were Anderson and other Iustices at Serjeants-Inn in Fleetstreet for the principall Case upon the Case moved there by Popham this Term And as the case is it would have made a good question upon the Statute of Fraudulent Conveyances if the Avowry had been made as by the grant of Thomas May in as much as the Estate made to the use of Dennis was defeasable at the pleasure of the said Thomas in as much as it was made by the Tenant of the Land as well as by him who made the Conveyance which is to be judged fraudulent upon the Statute But this as the pleading was cannot come in question in this case And afterwards by the opinion of other three Iudges Iudgment was given that the Grant should bind the said Thomas May and his Feoffees after him notwithstanding his regresse made by the Condition in as much as the Grant of the said Thomas shall enure to the Grantee by way of confirmation And by Gawdy If a Feoffee upon Condition make a Feoffment over and the first Feoffor confirm the Estate of the last Feoffee he shall hold the Land discharged of the Condition because his Feoffment was made absolutely without any Condition expressed in his Feoffment But Popham denied this as it appeareth by Littleton Tit. Descents because he hath his Estate subject to the same Condition and in the same manner as his Feoffor hath it into whomsoever hands it hapneth to come and therfore the Confirmation shall not discharge the Condition but is only to bind the right of him who made it in the possession of him to whom it is made but not upon Condition Morgans Case 7. RObert Morgan Esquire being seised in his Demesne as of Fee of certain Lands called Wanster Tenements in Socage having Issue John his eldest Son Christopher his second Son and William his youngest Son by his last Will in writing demised to the said Christopher and William thus viz. Ioyntly and severally for their lives so that neither of them stall alienate the Lands and if they do that they shall remain to his Heirs Robert the Father
be avoided and in the same manner here But Popham took a diversity where the Possession or the Estate of the Queen is determined and where not for where the Estate is determined there the Subject may enter into the Land without Office or ouster le main But where the Possession continues there the party shall not come to it unlesse by petition Monstrans de droit officio or the like and therfore hee said that if the Queen had an Estate pur auter vie or depending upon any other Limitation if it be determined according to the Limitation the party who hath interest may enter so in the case of the Devise put before And if a Lease be made for life the Remainder in Tail the Reversion in Fee and he in the Remainder in Tail levy a Fine Sur conusance de droit come ceo que il ad de son done to a stranger with proclamations according to the Statute and afterwards the stranger convey the Remainder to the Queen her Heirs and Successors and after the Tenant for life dies and after he in the Remainder in tail dies without Issue now may he in the Remainder in Fee enter because the Estate of the Queen is determined But here the Queen hath a Fee-simple in her self but determinable upon the Estate-tail which yet remaineth which Fee-simple in Reversion cannot be divested out of the possession of the Queen but by matter of Record of so high nature as it is in her to wit by Petition Monstrans de droit or the like As if a Reversson or Remainder be alienated in Mortmain the claim of the Lord sufficeth therâ— to vest the Reversion in the Lord for the Alienation but if the Reversion or Remainder of which such a claim was made be conveyed to the King his remedy is now by Office Monstrans de droit or Petition for claim will not now serve him for this shall be to divest the possession out of the Queen which by such means cannot be done no more then where a Reversion or Remainder is granted to the Queen upon Condition but he ought to have an Office to find the performance of it if it be to be performed by matter in pais and without Monstrans de droit or otherwise it shall not be divested out of the Queens possession yet in the case of a common person a claim will divest it out of them but not so of the Queen And these cases Gawdy agreed but he conceived that in the case in question the claim made determines the Estate of the Queen which is made by means of the Fine upon the Statute And Popham denied the case put in 7 H. 6. to be Law as it is put upon the opinion of Strange there for it is cleer that the claim there does not divest any possession which was in the King by means of the Wardship and if this be not therby defeated the claim does not help the Disseisee against the Descent and this appeareth fully by Littleton who saith so of a Claime which avoids a Descent to wit that it ought to be such upon which the Disseisee may upon every such Claim made have an Action of Trespasse or Assise against the Dissessor or him who is in possession if he continue his possession after such Claim made which cannot be in this case where the possession is in the King which cannot be defeated by such a Claim And in the Lord Dyer where the Feoffee or Mortgagee of Lands holden of the Queen in Capite by Knights Service died before the day of Redemption his Heir being within age wherby upon Office found the Queen had the Wardship of the body and land of the Heir after which the Mortgagee at the day of redemption made payment and of this also an Office was found yet he could not enter either before or after Office but upon Monstrans de droit therupon he had his Ouster le main And the reason why a Claim shall serve in this case between common persons is because that by such Claim the thing it self is devested out of him who had it before and therby actually vested in him who made the claim As where a Villain purchase a Reversion by the Claim of the Lord the Reversion is actually in him as it is of a Possession by Entry But where he is put to his Claim to devest any thing out of a common person he is put to his Suit to devest it out of the Queen Aad to say that Bret should not take advantage of this Conveyance made to make it good by the Fine I think the Law to be clear otherwise as to this point for the Statute of Fines was made tor the security of Purchasors and Possessors of Land and therfore taken more strongly against them who pretend Right or Title and for the greatest advantage that may be for the Possessors of Lands and therfore the Possessor by what ever means he can may make his Fine to be forceable And therfore the Fine upon this Statute differeth much from a Fine at Common Law for where at Common Law an Infent being a Disseisor was disseised by one who levies a Fine and the year and the day passe without claim of the first Disseisee now was the first Disseisee barred yet if afterwards the Infant who was not bound by the Fine enter the first Disseisee may enter upon him because that by this entry the Fine at Common Law was utterly defeated But now by the Statute such a Fine being levied with Proclamations the first Disseisee not pursuing according to the Statute is barred for ever And although the Infant enter at full age and undoes the Fine as to himself yet this Fine remains alwaies to bar the first Disseissee and makes that the Infant hath now Right against all the world and so now takes advantage therof And this is the intent of the Statute for the repose of Controversies and Suits and the quiet of the people And if I procure a Fine to be levied on purpose to bar another of his Action which he may have against me for the Land yet I shall take advantage of this Fine and the other shall have no advantage against me because of this Covin for if this should be admitted it will countervail the benefit which is intended to be by means of the Statute of Fines And if a Disseisor enfeoffee another upon Condition to the intent that a Fine with Proclamations shall be levied to the Feoffee to bar the Disseisee and after the Disseisee is barred the Disseisor enter for the Condition he shall yet take advantage of the Fine against the Disseisee And Popham put a case which was in this Court 23 Eliz. upon a speciall Verdict which was between Okes Plaintiff upon the Demise of John late Lord Sturton of Cottington which was this The Lord Sturton was Tenant for life of certain Lands in Lighe in the County of Somerset the remainder in Tail
wit the 6th day of July in the same 6th year by his Deed of the same date the said Christopher enfeoffed the said Sir John Chichester and his Heirs of the said Mannor and by the same Deed warranted it for him and his Heirs to the said Sir John Chichester and his Heirs wherupon the said Sir John Chichester entred into the said Mannor after which to wit the first day of October 12 Eliz. the said Christopher died after which the 7th day of November 13 Eliz. the said Stretchley Chudleigh died without Issue of his body And after the death of the said Sir Richard Chudleigh to wit the 6th day of September 7 Eliz. the said Sir John Chichester enfeoffed one Philip Chichester and his Heirs of the said Mannor to the use of the said Philip and his Heirs And the said Close being Copyhold and Customary Land of the said Mannor demisable by the Lord of the same Mannor or his Steward for the time being for life or lives by Copy of Court-roll according to the custom of the said Mannor The said Philip at a Court holden at the said Mannor for the said Mannor the 8th day of December 15 Eliz. by Copy of Court-roll granted the said Close to the said John Frain for Term of his life according to the custom of the said Mannor after which to wit the 11th day of March 28 Eliz. the said John Chudleigh being now Heir to the said Christopher enfeoffed the said William Dillon of the said Mannor to have and to hold to him and his Heirs to the use of the said William and his Heirs for ever wherby he entred and was seised untill the said John Fraine entred into the said Close upon him the 8th day of February 30 Eliz. upon which entry of the said Fraine this Action is brought And for difficulty of the case it was adjourned into the Exchequer Chamber before all the Iustices and Barons of the Exchequer And there it was agreed by all that a Warranty descending upon an Infant shall not bind him in case that the entry of the Infant be lawfull into the Land to which the Warranty is united But the Infant ought in such a case to look well that he do not suffer a descent of the Land after his full age before he hath made his re-entry for then the Warranty when he is to have an Action for the Land shall bind him And they agreed also that a Copyhold granted by a Disseisor or any other who hath the Mannor of which it is parcel by wrong shall be avoided by the Disseisee or any other who hath right to the Mannor by his entry or recovery of the Mannor And so by Popham it was agreed by the Iustices in the case of the Manner of Hasselbury Brian in the County of Dorset between Henry late Earl of Arundell and Henry late Earl of Northumberland but then he said that it was agreed that admittance upon surrenders of Copyholders in Fee to the use of another or if an Heir in case of a Descent of a Copyhold were good being made by a Disseisor of a Mannor or any other who hath it by Tort because these are acts of necessity and for the benefit of a stranger to wit of him who is to have the Land by the surrender or of the Heir And also Grants made by Copy by the Feoffee upon condition of a Mannor before the Condition broken are good because he was lawfull Dominus pro tempore And for the matter upon the Statute of 27 H. 8. what shall become of this future use â—imited to the first second and other Issues Males not in Esse at the time of the Feoffment Ewens Owen Bateman and Fennor said That an Use at Common Law is Use what it is no other then a confidence which one person puts in another for a confidence cannot be in Land or other dead thing but ought alwaies to be in such a thing which hath understanding of the trust put in him which cannot be no other then such a one who hâ—th reason and understanding to perform what the other hath committed to him which confidence shall bind but in privity and yet the confidence is in respect of the Land but every one who hath the Land is not bound to the confidence but in privity shall be said to be in the Heir and the Feoffee who hath knowledge of the confidence and in him who cometh to the Land by Feoffâ—ent without consideration albeit he hath no knowledge therof and yet every Feoffee is not bound although he hath knowledge of the confidence as an Alien Person Attaint and the like not the King he shall not be seised to anothers use because he is not compellable to perform the confidence nor a Corporation because it is a dead body although it consist of naturall persons and in this dead body a confidence cannot be put but in bodies naturall And this was the Common Law before the Statute of 27 H. 8. Then the Letter of the Statute is not to execute any Vse before that it hapneth to be an Vse in Esse for the words are Where any person is seised to the use of any other person that in such a case he who hath the Vse shall have the same Estate in the Land which he had before in the Vse Ergo by the very letter of the Law he ought to have an Estate in the Vse and there ought to be a person to have the Vse before the Statute intends to execute any possession to the Vse for the words are expresse that in every such case he shall have it therfore not another And therfore the Statute had purpose to execute the Vses in possession Reversion or Remainder presently upon the conveyance made to the Vses But for the future Vses which were to be raised at a time to come upon any contingent as to the Infants here not being then born the Statute never intended to execute such Vses untill they happen to have their beeing and in the mean time to leave them as they were at Common Law without medling with or altering of them in any manner untill this time and if before this time the root out of which these contingent Vses ought to spring be defeated the Vse for this is utterly destroyed and shall never afterwards have his being as here by the Feoffment made by the said Sir John Saintleger and his Co-feoffees who then were but as Tenements pur auter vie to wit for the life of Christopher and which was a forfeiture of their Estate and for which Oliver Chudleigh might have entred it being before that the said Strechley or John Chudleigh were born the privity of them from Estate being the root out of which this future use ought to have risen is gone and destroyed and therfore the Contingent Vses utterly therby overthrown As if before the Statute of 27 H. 8. Tenant for life had been the remainder over in Fee to an Vse
If the Tenant for life had made a Feoffment in Fee and he in the Remainder had released to the Feoffee the Vse had been gone for ever so in all these cases of contingent Vses at this day for he who cometh to the possession of Land by Disseisin or wrong done to the Possessor who is seised to anothers use shall never be seised to anothers use And the case being so that it is out of the letter of the Statute to execute such contingent Vses it is more strong for them out of the meaning of the Statute to execute then before they happen to be in Esse for this shall be to make all mischiefs comprehended in the Preamble of this Statute and against which the Statute intended to provide sufficient remedy in a worse mischief then they were before the making of the same Statute and this shall be but a perverse instruction of the Statute And they said that the subtleties used from time to time by means of those Vses to the great deceit and trouble of the people were the cause of the making of this Statute 27 H. 8. and by all the Statutes formerly made touching Vses it appeareth that they were all taken to be grounded upon fraudulent and crafty devises and therfore this Law had no great purpose to favour them but a Fortiorari not to make them in worse case by means of the Statute then they were before and therfore it shall not be taken that the Vse is executed by the Statute which stands upon a contingency of which a greater mischief will ensue then there was in such a case before the Statute and therfore by the Feoffment made in the interim before the birth of the Infants which otherwise ought to have preserved the Vse this Vse was utterly destroyed and although the Feoffee of Christopher had notice of the Vse yet this doth not now help in the case because the Feoffment did wrong to the Estate first setled which was subject to the Vse and extinct in the same possibility which had been otherwise in the Feoffees to have given livelyhood to the said Contingent Vse And therfore the Iudgment by them ought to be that the Plaintiff shall be barred Walmesley That the great mischief which was at Common Law upon these Feoffments to Uses was that none could know upon the occupation of the Land who was true Owner of the Land for Cestay que Vse was the Pernor of the Profits but in whom the Freehold or Inheritance of the Land was there were not many which knew wherby great mischief came to the assurances which men had of Land which they purchased and by it men knew not against whom to bring their Actions to recover their Rights and by it Wives lost their Dowers Husbands their Tenancy by the Curtesie Lords their Escheats Wardships and the like And this mischief hapned by reason that one had the profit and another the estate of the Land And the Statute was made to put the Land and the Estate quite out of the Feoffee who before did not meddle with the Land to Cestay que Use who before had but the occupation and profits of the Land and to this intent the letter of the Law serves very well which sayes that the Estate of the Feoffee shall be cleerly in Cestuy que Use and therfore nothing by the intent and letter of the Law is now to remain in the Feoffee no more then a Scintilla juris nemor'd in Brents Case in my Lord Dyer Eliz. and the whole Estate in the interim untill the contingent happen shall be in them who have their Vses in Esse and when the Contingent happen the Statute gives place to this Contingent Vse and by the execution therof comes between the Estates before executed and as out of these by the Statute but nothing is now after the Statute in the Feoffees for the purpose of the Statute was as I have said to take away all from the Feoffee for all was devested from him because that betwixt the Feoffor the Feoffee was all the fraud before the Statute and the very letter of the Statute is to extinguish and extirpate the assurances fraudulently made which was alwaies by reason of assurances made between the Estate of the Land in one and the possession therof in another and to cause that now that the Estate shall be to the use where the occupation was before And this Statute was not made to extinguish or discredit Vses but to advance them as by bringing the very Estate in possession to the Vse and by it the trust now taken from all others who were trusted with it before so the Statute doth not condemn the uses but the fraud which was by reason of them before And the Statute being that the Estate Right and Title of the Feoffees shall go to the uses therfore nothing remaineth in the Feoffees but all by authority of Parliament adjudged to be in Cestay que use which is the highest Iudgment that can be given in any Court and the words Stand and be seised at any time refer as well to the future as present uses and the Statute intended as well to help the uses which shall be upon any Contingent as those which are at present for a future or contingent Vse is to be said an Vse according to its nature or quality and it shall be executed according to its quality when it happen And the words are that the Estate which was in the Feoffee shall be in Cestay que use and not the Estate which is and therfore when the use hapneth to be in an instant the Estate which at the first Livery was in the Feoffee to this use shall now be executed in possession to this contingent use albeit it self was altogether executed as I said before in the Vses which were in Esse and if so it followeth that nothing which is done in the mean time by the Feoffee or can be done by any other can prejudice or hurt the execution of this Vse in contingency when the contingency happen And for the case of Brook 30 H. 8. it is plain in paint which is this A Covenant with B. that if B. enfeoff him of three acres of Land in D. that then the said A. and his Heirs and all others seised of such Lands shall stand therof seised to the use of the said B. and his Heirs after which A enfeoffed a stranger of this Land after which B. enfeoffed the said A of the said three acres now the use shall be to the said B. and his Heirs of the said other Land for the Statute so binds the Land to this Contingency when it happens that by no means it can be defeated and this is the cause that Leases made by force of Provisoes comprised in assurances are good and cannot be avoided for the Interests to these Leases is wrought by the first Livery and the Statute atd therfore upon the matter I conceive that Judgment ought
to be given for the Plaintiff Gawdy conceived that it is executed by the intent but not by the letter of the Statute for the purpose was to remove all the Estate from the Feoffee and to put it in Cestay que use wholly to wit in possessions to the Vses which were in Esse and in aleyance as to the Vses which were to come and contingent and now by the same Statute the contingency of the possession shal go in licence of the contingent Vse and now an Vse limited to one for life with Remainder over to the Heirs of the body of I. S. or to the first Son of I. S. shall be in the same manner as if Land at this day had been letten to one for life with Remainder over to the Heirs of the body of I. S. or to the first Son of I. S. and not otherwise for the quality which he had in the Vse the same by the very letter of the Statute he shall now have in the possession and Estate of the Land and the Statute is not to undo any Vse but to transfer an Estate in the Land to the Vse But he said That by the Feoffment made to Christopher the Contingent remainder which was devested in Stretchly and Iohn Chudleigh depending upon the Estate which Sir Iohn Saintleger and his Co-feoffees had for the life of Christopher is utterly gone and destroyed in the same manner as where a Lease is made for life the remainder to the right Heirs of I. S. or to the Heirs of the body of I S. if the Tenant for life dies or aliens wherby he makes a forfeiture and determines his Estate in the life of the said I. S. his Heir shall never have the Land by the remainder afterwards because he was not in Esse as an Heir at the time when the Estate ended for there cannot be a remainder without a particular Estate neither can it stand or be preserved And as in this case without a particular Estate of Free-hold a Remainder cannot be no more in the case now in question being now become by means of the Statute as if it had been an Estate executed in possession and for this cause only he conceived that Judgment ought to be given against the Plaintiff And Clench agreed with this opinion in all and both of them agreed if there be none to take the Vse according to the limitation at the time when it falleth to be in Possessions that he shall never take it although it happen to be in Esse afterwards Clark said that Uses were not at Common Law but grew by sufferance of time as appeareth by the words of the Statute it self and the mischief and subtlety which was before this Statute was not in the Fine Feoffment or other Assurances of Land but by means oâ— the Uses limitted therupon contrary to that which was used in the ancient course oâ— the Common Law and the Statute was made to reduce the Common Law to its ancient force and course and therfore ought to conceive such a construction as may agree with the purpose of the makers of the Statute and therfore the best construction of this Statute is not to execute other manner of Uses but in some cases to extinguish them as where it is such as will make the case in as ill or worse condition then it was before the making of the Statute It hath been agreed by all that the Statute doth not execute any Use which was suspended at the time of the making of the Statute as by reason of a Disseisor or the like hapning before and if it doth not execute the Use which is in suspence for the right which he had in the Use how can it execute the Use which hath not any being for in such cases of Infants not born as here untill they be in Rerum natura the Use cannot have any being And in the same manner in all cases where the Vse is not to rise but upon a future contingent And what good shall this Statute do if these leaping Vses shall arise without being impeached Nothing but alwaies nourish a Viper in the bosom of the Law which is quite against the intent of the makers of the Statute The Law was made to preserve peace amongst the Subjects and to assure their Possessions as many other Statutes did that were made about this time as the Statutes of Fines Wills and others But if the exposition of this Statute shall be as the other side hath taken it it will make the confusion which will happen therupon intollerable and much worse then it was before the Statute was made and as Walsh said if no assurance can be made to be forcible against such a contingent Use this will make it worse then it was before And hesaid that it was not to be compared to the interest of Lands to begin at a time to come nor to the case where a man devise that his Land shal be sold in which case be shall not be impeached by any manner of assurance to be made in the mean time by the Heir and the reason is because the Vendee takes by the Will under the Estate of the Heir and not by the sale and therfore upon the matter he conceived that the Plaintiff ought to be barred Periam said that Uses were at Common Law and to prove it he vouched 24 H. 8. abridged in Brook And he said that there have been alwaies trusts Ergo Uses ab initio but they had not such estimation at the beginning as they have had by continuance of time and so it was of Copyholds And these Uses at Common Law bind but in privity according to the trust but do not bind in the possession of him who cometh to the Land in the Post But now by the Statute all trusts are gone and the Estate of the Land it self transferred to the Use and now the Use guides the Land and not the Land the Use And the Statute did not intend to destroy any Use but to bring it back to the Possession according to the course of the common Law and to avoid the fraud And as before the Statute the Use it self in such a case of Contingency was in obeyance for the time so now the Estate it self is in obeyance by the Statute which wills that he shall now have an Estate in the Land it self of such a quality as he had before in the Use for the Statute puts all cleerly out of the Feoffees and it is not inconvenient to have a Possession so to a Contingent Use and if it had not been in the words of the Statute yet as hath been sayd it shall be so taken by the intent of the Statute for it never was the intent of the makers of the Statute to do wrong to any by means of the Statute And therfore he put the case of Cramner who made a Feoffment to the use of himself for his life and after his decease to the use
the Causa Matrimonii prolocuti which as they pretend ought to prove that there was a trust at Common Law And the other the Statute of Marlbridge that the Lord in case of Wards against Feoffments made by Collusion which Feoffments they alledge prove that a trust then was To which it was said that the gift made by a woman to another to the intent that he shal marry her hath in it a Condition more properly implied to wit that if he doe not marry her that she shall have her land back againe for which the Common Law gives her remedy by the Action aforesaid for if it had been but a trust no remedy had been by the Common Law And for the Statute of Marlbridge the contrary therunto is manifestly proved for the Statute speaks but of Feoffments made to Heirs apparants or upon Condition or to the intent to enffeoff the Heir at his full age or the like in which cases the use alwayes goes with the Possessions and is not to the Feffor And the Statute of 4. H. 7. was made in vaine which gives the Wardship of Cestuy que use where no Will is declared which had not been needfull if Feoffments within the Statute of Marlbridge had been said to have been to Uses And without doubt if those who made the Statute of Marlbridge had then had knowledge of these Feoffments to Uses which were so mischievous and more then the other Feoffments by Collusion they then would have provided remedy for these cases of Uses Also the Statute de Religiosis ordains that Nec arte nec ingenio Lands shal not be conveyed in Mortmain and therby it was conceived that a full provision had been made against these Mortmains and yet in 15 Rich. 2. Provision was made against Uses conveyed in Mortmain to Religious or other Corporations of which they took the Profits And without doubt those who were so precise in the making of the Statute of Religiosis against Mortmains would also have made provision for the uses if they had then been known But to cleer this point without all controversie the Statute it self of uses 27 H. 8. makes it plain which saith expresly that by the Common Law of the Realm Lands or Tenements ought not to passe from one to another without solemn Livery matter of Record or writing and that these Feoffments to uses were Errors used and accustomed within the Realm to the Subversion of the ancient Laws therfore it stands not with the ancient Common Law of the Realm as all the Parliment took it which is more to be regarded then any Book vouched But see how and when they began and crept in at Common Law and it shall be easily perceived as it hath been well said by some of those who argued to this point at the beginning that they began by two means to wit by fraud and by fear And he said that the first Book which he had seen in all the Books of the Law which tend to an use is the case of 8. Assise which makes mention that the Counsee of a Fine entred into the Land in the right of another which is to be taken to anothers use And in the Quadragessimâ—s of Edw. 3. mention is made of the Feoffees of the Lord Burglash who sued to the King by petition and by the Statute of 50 Ed. 3. cap. 6. mention is made that divers gave their Lands to their Friends to have the profits and afterwards fled to priviledged places and lived there to the hinderance of their Creditors And therfore it was provided that in such a case execution shall be made as if no such assurance had been made And by 2 Rich. 2. these are called Feoffments to uses and made by craft to deceive Creditors and there is the first mention which is made in any Statute of the word Use So fraud hath been alwaies the chief foundation of these Vses yet in time they began to have some credit in the Law And this was when men saw that the Court of Conscience gave remedy in these cases against such who had not the conscience themselves to perform the trust put in them and to take away the danger which hapned to an infinite number of good Subjects upon the Garboyls which hapned between the time of E. 3. and that of King H. 7. caused that in effect all the Possessions of the Realm were put in Feoffments to uses And the first case in the Law which speaks of this word Use which he ever saw was as he said in 5 H. 4. And in the like case by Gascoign 7 H. 4. no remedy is given by the Law for Cestay que use and afterwards it crept into the Law as appeareth yet as an Error of long time used And if before the Statute of 27 H 8. a Lease had been made for life the remainder in Fee to the use of B. for life the remainder to the use of the first Son of the said B. and so further as here If the Tenant for life had made a Feoffment in Fee to a stranger and had not given the stranger notice of the Use and all this were without consideration and afterwards he in the Remainder in Fee to the Use had released all his Right to the said stranger every one of them had been hereby without remedy for their Uses Were the Son of B. born before or after this wrong done So if it were at Common Law before this Statute as hath been weâ—l said and the Law being so before this Statute then he said it was to be seen what was to be done in the case after the Statute which will stand altogether upon this what will become of these contingent Vses to the Sons not born at the time of the said Feoffment made by Sir John Saintleger and his Co-feoffees by this Statute of 27 H. 8. and it seems to him cleerly that no possession is executed to any contingent use by this Statute untill it comes in being and that as the case is here and in some other speciall cases it shall never be executed And one cause why such a contingent Vse shall not be executed is because it doth not stand with the letter of the Law but rather is against the letter Another cause is because it is utterly against the intent of the Law to execute it as the case is here It doth not stand with the Letter of the Statute for this is Where any person or persons stand seised to the use of any other person or persons c. And it is cleer that none can stand seised to the use of him who is not neither can he who is not in rerum natura have any use therfore the case here doth not stand with the letter of the Statute to be now executed And further the words following are that in every such case every person who hath such an Use in Fee-simples Fee-tail for life for years c. or otherwise in Remainder or
time to come and therfore by this exposition much more to the disinherison of the Heir then it was before the making of this Statute And which is more mischievous if a Feme putein happen to be in such a house who happen to have Children in Adultery these Bastards shall have the Land against the will of the Father to the utter disinherison of the true Heirs and against the intent of him who made the limitation by which we may see the just Judgment of of God upon these who attempt by humane pollicy to circumvent the divine providence of God for the time to come and of this also I have seen an example And now to the mischief that men do not know against whom to bring their Actions to sue for their Rights and it is cleer that now by such an exposition they shall be now in much worse condition then they were before for before the Action was given against him who received the Profits which is now gone by this Statute in the cases of Free-hold and therfore if the other exposition shall hold place it is cleer that untill the Statute of 13 Eliz. men might have been by means of this Statute put out of all remedy to recover their rights by any manner of Action as some put it in practice as to make Feoffments to the use of the Feoffor and his Heirs untill any intend to bring an Action against him for this Land and then over to others upon the like limâ—tation with a Proviso to make it void at his pleasure and the like and what mischief shall then be for the time upon such an exposition such that Justice therby cannot be done to the Subject and what an absurdity shall it be to say that such an Exposition can stand with the intent of the Makers of the Law And to that which hath been argued on the other side and first to that which was said by Walmsley That the Right Estate and Possession is wholly out of the Feoffee and vested to the Vses which have their beeing by the Statute and that upon the Contingents hapning their Estates uncouple and give place to the contingent Vse then executed and that the execution therof shall be by a Possession dâ—awn to it out of the Possession which was before executed by the Statute in another I say that this Statute can by no means have such an exposition for this is as much as to say that an Vse may arise upon an Vse contrary to what is adjudged 36 H. 8. That a Bargain and Sale by a Deed indented and enrolled cannot be at this day of Land to one to the Vse of another And if a man enfeoff another to the use of I. S. and his Heirs and if I. N. pay such a summ that then the said I. S. and his Heirs shall be seised of the same Land to the use of the said I. N. and the Heirs of his body I. â— paies the money yet the Vse doth not rise out of the Possession of the said I. S. But if it had been that upon the payment the first Feoffee and his Heirs shall stand seised to the use of the said I. N. and the Heirs of his body it shall be otherwise therfore somthing remains to the first Feoffee in the Judgment of the Law And I remember that when I was a Counsellor at Law in the time of the Lord Dyer where a Feoffment was made to the Vse of one for life with Remainders over with restraint to alien and with power given to Tenant for life to make Leases for one and twenty years or three lives it was much doubted whether this power so limited to him without words in the Assurance that the Feoffee and his Heirs shall stand seised to these Vses shall be good to make such Leases or not And therfore suppose that a man bargains and sells Land to one for his life by Deed indented and inrolled and make therin a Proviso that the Tenant for life may make such Leases this is to no purpose as to power to make a Lease but the strongest case which he put was that of 30 H. 8. which I agreed to be Law as it is there put whether it were before or after the Statute of 27 H 8. for it is not there put that the Feoffment was made upon any consideration to the stranger in which case although he had no notice of the first Covenant yet in such a case he shall take the Possession subject to the Vse to which it was bound by the present Covenant But if you consider the case well you shall see that it was a case before the Statute for it followeth presently in the same case that it is there said that it is not like the case where the Feoffees in Vse fell the Land to one who hath no notice of the first Vse wherby it appeareth that it was a case before the Statute for otherwise there had been no cause to have spoken then of the Feoffees to an Vse and by the same it appeareth if the Covenantor had bargained and sold the Land to another the same Vse had never risen upon the Covenant and therfore it is cleer against the Law that the Possession shall be bound wâ—th such an Vse in whosoevers hand it comes And to that which Peâ—â—am said in the case of these Contingent Vses they shall now by the Statute be in the same degree as if Land it self had been so conveyed and that now the Land shall be in Contingency in stead of the Vse and that by such manner it shall be executed and that by such means all is utterly out of the Feoffees because the Statute was made to determine all â—â—â—ter of trust to be hereafter reposed in any Feoffee this is well spoken but not well proved for as I have said before it is an exposition quite contrary to the letter and intention of the Law And I agree as hath been said if there be none to take the Use at the time that it falleth to be in possession according to the limitation that he shall never take it afterwards no more of an Use upon the Statute then of â—n Use at Common Law As if an Use be limitted for life the remainder to the right Heirs of I. S. if the Estate for life be determined in the life of I S. the remainder shall never vest afterwards in the right Heirs of I. S. no more then if an Estate had been so made But this makes for me to wit that the Estate upon the Uses executed by the Statute shall be of the same condition as Estates in possession were at Common Law and that they being executed ought also to be such of which the Common Law makes allowance And by way of argument I agree for the time that it is as hath been said by them who maintain that an Use may be in suspence as to that which is an Use in its proper nature for it is
Grantor at his Election provided then afterwards that he shall charge his person is not good Causa patet And all agreed that upon a Rent granted upon equality of partition or for allowance of Dower or for recompence of a Title an Annuity doth not lye because it is in satisfaction of a thing reall and therfore shall not fall to a matter personall but alwaies remains of the same nature as the thing for which it is given And afterwards the same Term Iudgment was given in the Common Bench that the Plaintiff shall recover which is entred c. And in the same case Clark vouched that it was reported by Benloes in his Book of Reports where a Rent was granted out of a Rectory by the Parson who after wards resigned the Parsonage that it was agreed in the Common Pleas in his time that yet a Writ of Annuity lies against the Grantor upon the same Grant to which all who agreed on this part agreed that it was Law Butler versus Baker and Delves 3. IN Trespasse brought by John Butler against Thomas Baker and Thomas See this case in Cookes 3. Report foâ— 25 Delves for breaking his Close parcell of the Mannor of Thoby in the County of Essex upon a speciall Verdict the Case was thus William Barners the Father was seised in his Demesne as of fee of the Mannor of Hinton in the County of Glocester holden of the King by Knights-service in Capite and being so seised after the Marriage had between William his Son and heir apparant and Elizabeth the Daughter of Thomas Eden Esquire in consideration of the same Marriage and for the Joynture of the said Elizabeth assured the said Mannor of Hinton to the use of the said William the Son and Elizabeth his Wife and the Heirs of their two bodies lawfully begotten and died by whose death the Reversion also of the said Mannors descended to the said William the Son whâ—rby he was seised therof accordingly and being so seised and also seised of the Mannor of Thoby in his Demesne as of Fee holden also of the Queen by Knights-servivice in chief and of certain Lands in Fobbing in the said County of Essex which Land in Fobbing with the Mannor of Hinton were the full third part of the value of all the Land of the said William the Son and he made his Will in writing wherby he devised to his said Wife Elizabeth his said Mannor of Thoby for her life in satisfaction of all her Joynture and Dower upon condition that if she take to any other Joynture that then the Devise to her shall be void and after her decease he devised that the said Mannor shall remain to Thomas his Son and the Heirs Males of his body and for default of such Issue the remainder to Thomas brother of the said William for his life the remainder to hir first second and third Son and to the Heirs Males of their bodies and so to every other Issue Male of his body and for default of such Issue the remainder to Leonard Barners his brother and to the Heirs Males of his body the remainder to Richard Barners and the Heirs Males of his body the remainder to the right Heirs of the Devisor William the Son dies having Issue Thomas his Son and Grisell his Daughter Wife to the said Thomas Baker the said Elizabeth by Paroll in pais moved her Estate in the said Mannor of Hinton and after this entred into the said Mannor of Thoby after which the said Elizabeth died and Thomas the Son and Thomas the Uncle died also without Issue Male after which the said Leonard took one Mary to Wife and died having Issue Anthony Barners after which the said Mary took the said John Butler to Husband and after this the said Anthony assigned to the said Mary the said Mannors of Thoby in allowance for all her Dower wherby the said John Butler as in the right of his Wife entred into the said Mannor of Thoby wherby the said Thomas Delves by the commandment of the said Baker entred into the said Close of which the Action is brought as in right oâ— the said Grisell And whether this entry were lawful or not was the question which was argued in the Court in the time of the late Lord Wray and he and Gawdy held strongly that the entry of the said Delves was lawfull but Clench and Fennor held alwaies the contrary wherupon it was adjourned into the Exchequer Chamber But they all agreed that the Waiver made by the said Elizabeth by parole in pais was a sufficient Waiver of her Estate in Hinton and the rather because of the Statute of 27 H 8. cap. 10. the words of which are That if the Joynture be made after the Marriage that then the Wife surviving her Husband may after his death refuse to take such Joynture And now it was moved by Tanfield that Iudgment ought to be given for the Plaintiff for by the Waiver of the Wife the Inheritance of Hinton is now to be said wholly in the Husband ab initio and therfore that with Fobbing being a whole third part of the whole Land which now is to be said to be left to discend to the Heir of the Devisor as to Thoby is good for the whole and if so then no part therof descends to Grisell and therfore the entry of the said Delves in her right is wrongfull Coke Attorney-general to the contrary for he said That it is to no purpose to consider what Estate the Devisor had in the Mannor of Hinton by reason of this Waiver made by his Wife Ex post facto after his death But we are to see what Estate the Devisor had in it in the view of the Law at the time of his death before the Waiver and according to it the Law shall adjudge that he had power to make his Devise by means of the Statute and at this time none can adjudge another Estate in him but joyntly with his wife of which Estate he had no power to make any disposition or to devise it or to leave it for the third part to his Heir for the Statute which is an explanatory Law in this point saies that he ought to be sole seised in such a case And further the Statute of 34 H. 8. at the end is that the Land which descends immediatly from the Devisor shall be taken for the third part and this Land did not descend immediatly for it survived to the Wife untill she waived it and therfore this Land is not to be taken for any third part which the Statute purposed to have been left to the Heir and therfore so much shall be taken from Thoby as with Fobbin shall be a third part to descend wherbâ— Grisell the Heir hath good right yet to part of Thoby and therfore the entry of the said Delves in her right by commandment of her husband not wronfull Periam chief Baron Clench Clark Walmsley and Fennor That now
but as referring to the provision subsequent in the Statute in which case this matter shall be used but as the Proviso it self shall be and according to this it hath been commonly put in practise by all the Iustices in all places after the Statute untill now And they agreed also that it need not be shewn whether he were made a Iesuit or Priest c. either beyond Sea or within the Realm because whersoever it was it is within the Law if he were made by the pretended authority of the See of Rome But they agreed that it ought to be comprised in the Indictment that he was born within this Realm or other Dominions of the Queen but need not to shew where but generally Et quod I. S. natus infra hoc Regnum Angliae c. And the Indictment ought to comprise that he was a Iesuite or Priest c. by authority challenged or pretended from to the See of Rome because that this is in the body of the Act without such reference as in the other point and according to this resolution the proceeding was against the said Southwell Easter Term 37 Eliz. Pigots Case 1. AFter the death of Valentine Pigot Esquire a Commission was awarded in nature of a Mandamus and after the death of Thomas Pigot Father of the said Valentine a Commission was awarded in nature of a Diem clausit extremum and the said Commissions were awarded to one and the same Commissioners who by one Inquest took but one Inquisition upon these severall Commissions in this form Inquisitio indentata captâ— apud c. virtute Commiss in natura brevis de diem clausit extremum eisdem Commiss direct c. ad inquirendum post mortem Thomae Pigot Ar. nuper defuncti patris predict Valentin per sacramentum c. Qui dâ—cunt c. After which all the points of the Câ—mmission after the death of the sâ—id Valentine are enquired of but for the Commissions after the death of the said Thomas Pigot it is imperfect in some points as who is his Heir c. is not found And by Popham and Anderson this Inquisition is void as to Valentine as well as for Thomas for their authorities which are the Commissions are by severall Warrants which cannot be simul semel by one and the same Inquisition executed and satisfied but ought to be divided and severall as the Warrant is severall and yet the same Inquest which found one Inquisition by one Warrant may also find another Inquisition by the other Warrant but divided and severall and not as one for as it is made it does not appear upon which of the Commissions the Inquisition as to Valentine is taken for as it is made it may be as well upon the one as upon the other for it is said to be by vertue of both the Commissions which cannot be and therfore is not good in any part and severall Warrants ought to be severally execused and therfore although the Escheator as appeareth by 9 H. 7. 8. may take â—â— Inquisition Virtue officii and at the same day another Inquisition Virtue brevis by one and the same Inquest yet this cannot be drawn into one Inquisition And that which is found Virtue officii contrary to that which before the same day Virtute libris as that it found more Land is good for the King And this their opinion was certified to the Court of Wards Sir Rowland Haywards Case 2. THis Case was also sent to the same chief Iustices out of the Court of See this case in Coke â— Report 35. Wards Sir Rowland Hayward being seised in his Demesne as of Fee of the Mannors of D. and A. in the County of Salop and of other Lands in the same County part wherof were in Lease for years by severall Indentures rendring certain rent part in the possessions of severall Copyholders and part in Demesne in possession out of Lease by Indenture dated 2. September 34. Eliz. made mention that this was for and in consideration of a certain sum of money to him paid by Richard Warren Esquire and others demised granted bargained and sold to the said Richard Warren and the others the said Mannors Lands and Tenements and the Reversion and Remainder of them and of every part of them and the Rents and Profits reserved upon any Demise therupon for 17. years next ensuing the death of the said Sir Rowland rendring a Rose at the Feast of S. John Baptist yearly if it be demanded which Deed was acknowledged to be enrolled and afterwards by another Indenture covenanted and granted for him and his Heirs hereafter to stand seised of the said Mannors Lands and Tenements to the use of the said Sir Rowland and of the Heirs Males of his body and afterwards and before any Attornment to the said Richard Warren and his Co-lessees or any of them the said Sir Rowland died seised of the said Mannors Lands and Tenements leaving a full third part of other Lands to descend to his Heir And it was moved on the Queens part that for part to wit for that which was in possession it past to the said Richard Warren and the other by way of Demise at Common Law and therfore it doth not passe afterwards by way of Bargain and Sale as to the Remainder and that therfore for the Services of the Mannors and for the Rents reserved upon the Demise these remain to the Heir who was in Ward to the Queen and within age and therfore to the Queen by reason of the Tenure which was in Capite by Knights-service But by Popham and Anderson it is at the Election of the said Richard Warren and his Co-lessees to take it by way of Demise or by way of Bargain and Sale untill that by some act done or other matter it may appear that their intent is to take it another way for the Vse in this case may well passe without the Inrolement of the Deed because the Statute of 27 H. 8. of Inrolements extends but to where a Free-hold is to passe and the Vse so passing this shall be executed by the Statute of 27 H. 8. of Vses and therfore if the said Richard Warren and his Co-lessees after the death of the said Sir Rowland Hayward would elect to take it by way of Bargain and Sale they shall have all the Reversions Remainders Rents and Services as well as the Land in possession executed to them by the Statute of Vses And of the same opinion were all the Iustices in Trinity Term following upon their meeting at Serjeants-Inne for another great cause Trinity Term 37 Eliz. 1. VPon an Assembly of all the Iustices and Barons of the Exchecquer at Where a Justâ—ce of Peace bails one who is not bailable he shall be sined and albeit he be committed but for sufficiâ—â—â— of Felony and haâ—h no notice of his offence Serjeants-Inne in Fleetstreet this Term it was resolved by them and so agreed to be hereafter put
same Deed granted and confirmed to the said Sir Maurice and to the Heirs Males of his body the said Lievtenant-ship and Deputy-ship of the said West part of the said Forest and also the Keeper-ship of the said Walk called Staverdale Walk together with the Lodges c. Provided alwaies and the said Sir Maurice covenanted and granted for him and the Heirs Males of his body with the said now Earl his Heirs and Assigns that it shall be lawfull for the said Earl his Heirs and Assigns to have all the Preheminence or commandment of the said Game and Hunting and pleasure there as if this Grant had not been made Provided also and the said Sir Maurice covenanted granted and promised for him and the Heirs Males of his body to and with the said Earl his Heirs and Assigns that the said Sir Maurice and the Heirs Males of his body and their Assignee and Assignees will preserve the Games as fair as it commonly hath been used and that neither the said Maurice nor any of the Heirs Males of his body nor any of their Assignees will cut any manner of Wood growing upon any part of the Premisses unlesse for necessary Brouse and such as they may lawfully cut of their own and as was accustomed c. after which Sir Maurice died and Sir Henry Barkley his Son and Heir Male cut four Okes within the said Walk called Brewicks growing upon the soile of the Queen there every one of them being Timber and of the value of 13 s. 4 d. and converted them to his own use And whether by this act done by the said Sir Henry the now Earl of Pembrook may re-enter into the things granted by him was the question which stands upon two points the first Whether the last Proviso makes a Condition or be but a meer Covenant 2. Whether this Act makes a Forfeiture of the said Offices granted as before by the course of the Common Law Gaudey Clench Walmsley and Beamont that the first Proviso is not a Condition either because he is not by this to do more then he may do by his superior custody in which case he ought to do it by his own authority as to take his fee Deer or to chase and kill Deer by Warrant and the like or otherwise if it shall be taken that he may by this Proviso kill or chase the Game at his pleasure it is void because as to it he is to do that which he ought not to do by his Office to wit to destroy the Game which by his Office he is to preserve and therfore for the first it stands meerly upon the Covenant Then when he saith further in the second clause Provided also and the said Sir Henry Barkley covenants this is to be intended that it shall be as the other for the word also and this is but a bare Covenant as the first was And they said further that this last Proviso shall be said entirely the words of the Grantee himself as the Covenant is and without words of the Grantor a Condition cannot be for it is for him to condition with the Estate given and not for him to whom the Grant is made And therfore suppose that it had been on the other part to wit Provided alwaies and the Grantor covenant that the Grantee shall have the refuse of the brouse and the like this shall not be said to be any Condition but a meer Covenant In like manner shall it be on the other part And further it is common for Scriveners and ignorant persons to make in effect every Covenant to begin with a Proviso in this manner and therfore to expound such a manner of Proviso as a Condition it shall be too perilous to the Estates of men And for the case upon the Lease made by Serjeant Bâ—â—dloes which was thus Provided alwaies and it was covenanted granted and agreed between the parties if the Lessee sell or alien the term that the Lessor shall have the preferment This they agreed to be a good Condition as was adjudged in the Common Bench 32 Eliz. but the case there is because they are the words as well of the Lessor who may add a Condition to the Estate as of the Lessee who made the Covenant which is not here But they said that the case between Hamington and Pepull which was 17 Eliz. in the Kings Bench was more nigh in resemblance to the case in question which was that the said Pepull made a Lease for years to Hamington of a Farm except the wood and covenanted with the Lessee that he shall take all manner of under-wood provided alwaies and the Lessee covenant that he will not cut any manner of Timber-tree this was adjudged no Condition And as to the other point they said that the cutting of Trees by him who had the custody of the Forest is not a forfeiture of his Office by the Common Law as it is of him who hath the custody of a Park for there is another speciall Officer who hath the charge of wood in a Forest to wit the Verderer and the Woodward and therfore it is no forfeiture of him who hath the custody of the Forest to cut Trees for he hath another charge to wit the custody of the Game only and not of the Wood. And further the cutting of one or two Trees is no cause of forfeiture for it may be that there is Covert-shade and brouse sufficient of that which yet remains in which case it is no forfeiture if it be not averred that these things are impaired by it But the chief Iustices chief Baron and all the other Iustices and Barons were of a contrary opinion And for the matter of forfeiture at Common Law they said that it was a cause of forfeiture of an Office at common Law to cut the Trees as well in the case of a Forester as in case of a Park-keeper for the Forester hath not only the charge of the Game but of all that is within the Forest by which the Game is fed preserved or succoured and they are fed by the brouse and succoured by the shade and have the calmer and better lodging by reason of the Trees and therfore by their Office they are to have a care of these things as well as of the Game for without these the Game cannot stand as to say that there are others who have speciall charge of the Wood and Pasture as the Woodward or Agister c. this is no proof that the Foresters or Keepers are discharged therby And the Foresters and Keepers are by their Offices to present the Misdoers in the Woods within the Forests of the Wood-wards and therfore they have to do with it And by Carta de foresta none may cut his wood within his Forest Nisi per visum Forestraii ergo the Foresters have charge therof And every voluntary act done by an Officer contrary to that which belongs to his Office is a forfeiture of his Office as by
to attend and be assistant to the Iustices Sheriffs or other Ministers of the King in the doing of it 3. AT the same time it was also resolved by them all except Walmsley Fennor and Owen in the Case of one Richard Bradshaw and Robert Burton who with others lately by word entred themselves into an agreement one with another to rise and put themselves into Armes and so to go from one Gentlemans house to another and so from house to house to pull down Inclosures generally that this so appearing by their own confession or by two Witnesses according to the Statute is high Treason by the Statute of 13 Eliz. cap. 1. The words of which Statute are That if any intend to levy War against the Queen and this maliciously advisedly and expresly declare or utter by any words or sayings that this shall be high Treason For all agreed that Rebellion of Subjects against the Queen hath Rebellion of Subjects high Treason been alwaies high Treason at the Common Law for the Statute of 25 E. 3. cap. 1. is that levying of War within the Realm against the King is Treason and Rebellion is all the War which a Subject can make against the King But Walmsley and the others with him said that the Statute of 1 Mar cap. 12. 10. That if any to the number of twelve or more assemble themselves to the intent to pull down Inclosures Pales and the like with force and continuing together after proclamation according to the Statute to go away by the space of an hour or do any of the Offences mentioned in the Statute that this is Felony So that if these Actions had been Treason at the Common Law it had been to no purpose to have made it Felony And it seemed to them that the resistance ought to be with force to the Queen before that such Acts shall be said Treason But all the other Iustices agreed and so it was put in ure lately in the case of the Prentices of London that if any assemble themselves with force to alter the Laws or to set a price upon Victualls or to lay violent hands upon the Magistrate as upon the Major of London and the like and with force attempt to put it in action that this is Rebellion and Treason at Common Law and yet this Statute of 1 Mariae makes it in such a case but Felony And they put a diversity between the cases of pulling down Inclosures Pales c. comprised in the Statute of 1 Mar. for those are to be understood where diverse to the number of twelve or more pretending any or all of them to be injured in particular as by reason of their common or other Interest in the Land inclosed and the like and assembling to pull it down forcibly and not to the cases where they have a generall dislike to all manner of Inclosures and therfore the assembling in a forcible manner and with Armes to pull them down where they have any Interest wherby they were in any particular to be annoyed or grieved is not Treason but the case here tending to a generality makes the act if it had been executed to be high Treason by the câ—uâ—se of the Common Law And therfore the intention appearing as the case is here it is Treason by the Stâ—tute of 13. aforesaid Periam in some manner doubted of the principall case but to intend to rise with force to alter the Laws to set price upon any Victuals or to use force against a Magistrate for executing his Office of Iustice and the like he said that they were cleerly Treason by the Statute of 13. aforesaid if it may appear by expresse words or otherwise as the said Statute mentions for all these tend against the Queen her Crown and Dignity and therfore shall be as against the Queen her self And if it had been put in practice it had been Treason at the Common Law Here ends the LORD POPHAM'S REPORTS An addition of certain Select CASES in the time of KING JAMES and KING CHARLES Trin. 15. Jac. In the Kings Bench entred Hill Jac. Rot. 194. Brooks Case IN an Ejectione firmae brough by one Brook against Brook the Case was thus Iohn Wright a Copyholder in Fee 10 Eliz. surrendred his Land into the hands of the Lord by the hands of Tenants according to the Custom c. without saying to whose use the Surrender should be And at the next Court the said Iohn Wright was admitted Habendum to him and his Wife in Tail the remainder to the right Heirs of Iohn Wright and the Wife of Iohn Wright now Defendant was seised from the time of Where upon surrender of Copyhold land no use is limited to whole use iâ— shall be the admittance untill this day And it was objected by the Counsell of the Plaintiff that the surrender was void because no use was limitted and therfore by constitution of Law ought to be to the use of the Surrender as if a Feoffment be made and no Use limited it shall be to the Use of the Feoffor or as it is in Sir Edward Cleers Case Coke lib. 6. 18. If a Feoffment be made by one to the use of his last Will he hath the use in the mean time 2. That the admittance was not available to passe an Estate to the Wife for she was not named in the Premisses but only in the Habendum and the Office of an Habendum is to limit the Estate and not the person and therfore it is said in Throgmorten and Tracies Case in Plowd com That if one be named to take an Estate in the Habendum where he was not named at all in the Premisses this is not good But it was resolved by the whole Court for the first point that the subsequent Act shâ—ll explain the Surrender for Quando abest Provisio partis adest provisio legis And when the Copyholder accepts a new admittance the Law intends that the Surrender generally made was to such an Vse as is specified in the admittance and the Lord is only as an Instrument to convey the Estate and as it were put in trust to make such an admittance â—s he who surrenders would hâ—ve him to make And Crook Iustice said Fides adhibita fidem obligat For the second point it was also agreed by the Court that the Wife shall take by this admittance albeit she were not named in the Premisses but only in the Habendum and they agreed that in Feoffments and Grants the party that is not named in the Premisses shall not take by the Habendum and therfore Throgmorton and Tracies Case as to this point is good Law But this case of a Copyhold is like to the case of a Will or to the case of Frank-marriage in which it is sufficient to passe an Estate albeit the party be only named in the Habendum and if it should be otherwise the Estates of many Copyholders would be subverted And so they resolved that Iudg-should be
given for the Defendant The same Term in the same Court. Laurking and Wildes Case THe Rector of the Church of livelled in the spirituall Court for the Tithes of a riding Nag where the case was That a man let his Land reserving the running of a Horse at some time when he had occasion Tithes for a riding Nag to use him there The Defendant shewed this matter in the Court by his Counsell and prayed a Prohibition and avers that for the same Land in which the Horse went he paid Tithes And by the Court nigh London a man will take a 100. or 200. Horses to Grasse now he shall pay Tithes for them or otherwise the parson shall be defeated But in this case if the Defendant alledge and prove that it was a Nag for labour and not for profit a Prohibition lies The same Term in the same Court. Havergall versus Hare IN an Ejectione firmae brought by Havergal against Hare the Case was thus Afterwards fol 55. A Rent of 20 l. per annum was granted out of Green acre to one and his Heirs to be paid at Michaelmas and the Annunciation of our Lady by equall portions and the Grantor covenants that if the Rent of 20 l. be arrear by the space of twenty daies that the Grantee may distâ—ain and that if there be not sufficient distresse upon the Land or iâ— there be a Rescous Replevin or Pound-breach that then it shall be lawfull for the Grantee and his Heirs to enter and retain the Land to them and their Heirs untill the 20 l. be paid 10 l. for one half years Rent was in arrear and for it an entry was made Mountague chief Iustice and Doderidge Iustice there can be no entry made when 10 l. only is behind for the words of the Deed are that if the Rent of 20 l. be behind that the Grantee and his Heirs may enter and if he shall enter now he shall retain the Land for ever for the 20 l. shall never be paid Crook and Haughton Iustices contrary for if 10 l. be arrear the Rent of 20 l. is arrear for Haughton said In an Assise of Rent of 40 l. where part is arrear yet he ought to bring his Assise for the whole Rent of 40 l. for the Writ ought to agree with the Deed. Doderidge agreed with him in the case of an Assise but not in the principall point And for the second point it was agreed by them all that upon the entry of the Grantee he shall have a Fee-simple determinable admitting the entry for the 10 l. to be good The same Term in the same Court and it is entred 14 Jac. Rot. 1484. Robinson versus Walter RObinson brought an Action of Trover and Conversion against Walter and upon the whole matter the case appeared to be this A Stranger took the horse of the Plaintiff and sent him to a common Inn and there he remained for the space of half a year at which time the Plaintiff had notice where his Horse was and therupon he demanded him of the Inn-keeper who answered that a person unknown left the Horse with him and said that he would not deliver the Hoâ—se to the Plaintiff unlesse he would pay for his meat which came to 3 l. 10 s. for all the time and also would prove that it was his Horse upon which the Plaintiff demurred in An Inn-keeper may detain a Horse untill he be satisfied for meat albeit he be left by a stranger Law And it was resolved by Mountague chief Iustice Crook and Doderidge Iustices Haughton Iustice dissenting that the Defendants plea was good for the Inn-keeper was compellable to keep the Horse and not bound at his peril to take notice of the Ownder of the Horse And by the custom of Lond. if a horse be brought to a common Inn wher he hath as it is commonly said eaten out his head it is lawfull for the Inn-keeper to sell him which case of the custom implies this case And there is a difference where the Law compels a man to do a thing and where not As if the Lievtenant of the Tower brings an Action of debt for Dyet against one who was his Prisoner in this case the Defendant cannot wage his Law because the Law compels the Lievtenant to give Victuals to his Prisoner otherwise if another man brings an Action of debt for Dyet and in the case at the Bar the Inn-keeper was compellable And Doderidge said that if the Law were as the Plaintiff would have it it were a pretty trick for one who wants a keeping for his Horse And Mich. 6 â—ac in the Kings Bench between Harlo and Ward the like was resolved as was cited by Barkesdels of Counsell with the Defendant Mich. 14. Jac. In the Kings Bench. Rawlinson versus Green A Copyholder surrendred out of Court according to the custom of the Mannor which at the next Court was presented and entry therof made by the Steward Scilicet Compertum est per homagium c. but no admittance Afterwards Cestuy que use surrenders before admittance and the first Copyholder surrenders to the Plaintiff And in this case there were two questions 1. Whether he may surrender before admittance 2. Who shall have the Land whether the first Copyholder or the Lord Haughton Iustice held that he could not surrender before admittance and the entry of the surrender doth not make an admittance for this being the A â—urâ—ender of Copyhold cannot surrender before admittance sole act of the Steward shall not bind the Lord and it is not like to the usuall foâ—m of an admittance for that is Dat Domino de fine fecit fiâ—elitatem admissus est inde tenens Doderidge Iustice agreed and said that in Hare and Brickleys case the admittance of a Copyholder was compared to the induction to a Benefice which gives the possession Hillary 14. Jac. In the Kings Bench. Sir John Pools Case Three Executors brought an Action of Debt and one only declared and they were ready for a triall in the Country and now it was moved that the Declaration might be amended and the names of the other Executors incerted but per Curiam this cannot be without the assent of the parties Pasch 15. Iac. In the Kings Bench. Cooper versus Smiths AN Action upon the Case was brought for these words viz Waterman Action for these words Thou hast killed thy Masteâ—s Cook and thou Innuende the Plaintiff hast killed thy Masters Cook Innuende c. and I will bring thee in question for thy life And after Verdict for the Plaintiff it was moved in Arrest of Iudgment by the Counsell of the Defendant that the words were not actionable for the incertainty inasmuch as it doth not appear who was his Master nor that his Master had a Cook Mountague chief Iustice said that the words were actionable and albeit Inâ—uendo cannot maâ—e a thing that is uncertain certain an Innuendo cannot make a
of the Bailment But Haughton being contra therfore Curia advisare vult The same Term in the same Court The Earl of Shrewsburies Case VPon a Verdict a rule was given to have Iudgment and this was upon the Thursday and upon Sâ—â—uâ—day after thâ— party that was Plaintiff died and it was moved to have a Writ of Error because it was said that the party died before Iudgment in as much as of course aâ—ter the Verdict and the â—ule given for Iudgment there are four daies given to speak in Arrest In the diâ—cretion of the chief â—ustice to allow a Writ of Error The entry of a Iudgment how it shall relate of Iudgment â—â—o so as Yelverton Attorney-generall said he died before Iudgment absolutely given and he moved the Court to have a Supersedeas And it was agreed that it wâ—s in the discretion of the chief Iustice Ex officio to allow a Writ of Error but because it was a cause of great consequence he took the advice of the Court and it was agreed that a Writ of Error was a Supersedeas in it self yet it is good to have a Supersedeas also and if the Writ of Error had been allowed the Court could not deny the party a Supersedeas But because the Writ of Error was not allowed and also because no Error appeared to the Court for where Iudgment is entred this shall relate to the time of the rule given It was resolved that no Writ of Error should be allowed nor any Supersedeas granted The same Term in the same Court. Rones Case IN an Ejectione firmae brought by the Lessee of Rone Incumbent of the Church of Dallinghoe in Com. Suff. It was found by speciall Verdict that the King was the true Patron and that Wingfeild entred a Caveat in vita Incumbentis he then lying in Extremis scilicet Caveat Episcopus ne quis admittatur c. Nisi Convocatus the said Wingfeild the Incumbent dies Naunton a stranger presents one Morgan who is admitted and instituted afterwards the said Wingfeild presents one Glover who is instituted and inducted and afterwards the said Rone procure a presentation from the King who was instituted and inducted and then it came in question in the Spirituall Court who had the best right and there sentence was given that the first institution was Irrita vacua inanis by reason of the Caveat then the Church being full of the second Incumbent the King was put out of possession and so his presentment void But it was adjudged and resolved by all the Court for Rone for 1. It was resolved that this Caveat was void because it was in the life of the Incumbent 2. The Church upon the Institution of Morgan was full against all but the King and so agreed many times in the Books and then the presentation of Glover was void by reason of the super-institution and therfore no obstacle in the way to hinder the presentation of Rone and therfore Rone had good right And if the second institution be void the sentence cannot make it good for the Spirituall Court ought to take notice of the Common Law which saith that Ecclesia est plena consulta upon the institution and the person hath therby Curam animarum And as Doderidge Iustice said he hath by it Officium but Beneficium comes by the Induction And although by the Spirituall Law the institution may be disannulled by sentence yet as Linwood saith Aliter est in Anglia who is an Author very well approved of amongst the Civilians And Doderidge put a case out of Doctor and Studient the second Book If a man devise a summ of money to be paid to I. S. when he cometh to full age and afterwards he sues for it in the Spirituall Court they ought to take notice of the time of full age as it is used by the Common Law to wit 21. and not of the time of full age as it is used amongst them to wit 25. So in this case at the Bar for when these two Laws met together the Common Law ought to be preferred And when the Parson hath institution the Arch-deacon ought to give him Induction And see Dyer 293. Bedingfeilds case cited by Haughton to accord with this case The same Term in the same Court Taylors Case JOhn Taylor a Citizen and Alderman of Glocester was put out of his place by the Common Counsel of the City for some misdemeanor and he sued out a Writ of Restitution and for that the cause of his displacing was not sufficient Writ of Restitution for an Aldermans place his Writ was allowed by reason wherof the other Alderman who was elected in his place was to be removed for the number of Aldermen was full But Hazard another Alderman to the end that the new elect who now was Major should not be displaced was contented to surrender his place in consideration of 10 l. a year granted to him by the Corporation for term of his life with which the Wife of Hazard was not content and therfore he would have left his agreement And therupon the question was whether he might surrender or not And it was said by Coventree Sollicitor that he cannot and he cited Middlecots case an Alderman of B. where the opinion of the Court was 13 Eliz. that he cannot surrender Doderidge perhaps they would not except his surrender Mountague said that Alderman Martin of London gave up his Aldermans place and without question any man in such a case may surrender or leave his place to which the Court agreed and therfore it was ordered that Hazard shall have his 10 l. a year and that he shall stand to his first agreement The same Term in the same Court. May and Samuels Case AN action of Debt was brought upon an Obligation the Condition wherof was to stand to the Arbitrement of John S. concerning all matters between them to the time of the submission who arbitrates that the one shall pay 20 s. and that the other shall make a generall release to him of all matters from the beginning of the world to the time of the arbitrement Arbitrement Haughton Iustice this is an arbitrement but of one part and therfore void but if it had been only that the one shall pay 20 s. it may be good for it shall be intended that the other by reasonable construction shall be discharged or acquitted to which Crook and Doderidge Iustices agreed But by Mountague chief Iustice it ought to be specified yet they all agreed and so it was adjudged that this was a void arbitrement for it was of the one part only to wit that he shall pay 20 s. for the other part for the release to the time of the arbitrement was not within the submission so if the arbitrement had been that the one shall make a release or shall be discharged or acquitted without speaking of the other this being on the one part only is a void arbitrement vide
Living And Mountague chief Iustice said that this word Bribing doth not import that he took a Bribe and therfore this word and all the other words but corrupted Knave are idle but these words impeacheth him in his Office for it hath reference to that and therfore is actionable And Iudgment was given accordingly The same Term in the same Court Sir Baptist Hickes Case in the Star Chamber SIr Baptist Hickes having done divers Pions and Charitable Acts to wit had founded at Camden in Glocestershire an Hospitall for twelve poor and impotent men and women and had made in the same Town a new Bell tunable to others a new Pulpit and adorned it with a Cushion and Cloath and had bestowed cost on the Sessions House in Middlesex c. one Austin Garret a Copyholder of his Mannor of Camden out of private malice had framed and writ a malicious and invective Letter to him in which in an ironicall and deriding manner he said that the said Sir Baptist had done these charitable works as the proud Pharisee for vain-glory and oftentation and to have popular applause and further in approâ—rtous manner taxed him with divers other unlawfull Acts And it was resolved by the Court that for such private Letters an Action upon the case doth not lye at Common Law for he cannot prove his case to wit the publishing of it but because Where a private Letter is punishable as a Libell it tends to the breach of the Peace it is punishable in this Court and the rather in this case because it tends to a publike wrong for if it should be unpunished it would not only deter and discourage Sir Baptist from doing such good Acts but other men also who are well disposed in such cases and therfore as the Arch-bishop observed this was a wrong 1. To Piety in respect of the cost bestowed on the Church 2. To charity in regard of the Hospitall 3. To Iustice in consideration of the Session House and these things were the more commendable in Sir Baptist because he did them in his life time For as Mountague chief Iustice observed they who do such acts by their Will do shew that they have no will to do them for they cannot keep their Goods any longer And he only took a diversity where such a Letter concerns publike matter as they did or private in which case it is not punishable But the Lord Coke said that it was the opinion of the Iudges in the Lord Treasurers case when he was Attorney that such a private Letter was punishable in this Court and therupon he had instructions to exhibit an Information but the Lord Treasurer Jacens in extremis was content to pardon him and so it was resolved between Wooton and Edwards And Sir Francis Bacon Lord Chancellor said that the reason why such a private Letter shall be punished is because that it in a manner enforceth the party to whom the Letter is directed to publish it to his friends to have their advice and for fear that the other party would publish it so that this compulsary publication shall be deemed a publication in the Delinquent and in this case the party was fined at 500 l. The same Term in the same Court. Bernard versus Beale AN Action upon the case was brought for these words viz. That the Words That the Plaintiff had two Bastards 36. yeaâ—s since Plaintiff had two Bastards 36. years ago upon the report wherof he was in danger to have been divorced And it was resolved that for Defamation there was no remedy but in the Spirituall Court if he had no temporall lesse therby and therfore it is not sufficient to ground an Action to say that he was in danger to be diverced but thâ—t he was De facto divorced or that he wâ—s to have a presentment in marriage as it is in Anne Devies case Co. lib. 4. The same Term in the same Court. Brabin and Tradums Case THe Case was That the Church-wardens of D. had used time out of mind to dispose and order all the Seats of the Church wherupon they disposed of a Seat to one and the Ordinary granted the same Seat to another and his A Prohibition for a Seat in the Church Heirs and excommunicated all others who afterwards should sit in the Seat and a Prohibition was prayed and granted for this grant of a Seat to one and his Heirs is not good for the Seat doth not belong to the person but to the house for otherwise when the person goes out of the Town to dwell in another place yet he shall retain the Seat which is no reason and also it is no reason to excommunicate all others that should sit there for such great punishments should not be imposed upon such small Offenders an Excommunication being Traditio diabola In the same Term in the same Court. Fulcher versus Griffin THe Parson of D. covenanted with one of his Parishoners that he should A Parson covenant that his Parishoners shall pay no Tithes pay no Tithes for which the Parishoner covenanted to pay to the Parson an annuall summ of money and afterwards the Tithes not being paid the Parson sued him in the Court Christian and the other prayed a Prohibition And it was agreed that if no interest of Tithes passe but a bare Covenant then the party who is sued for the Tithes hath no remedy but a Writ of Covenant And the better opinion of the Court in this case was that this was a bare Covenant and that no interest in the Tithes passe The custody of a Copyholder that was a Lunatick was committed to Darcies case in the Common Pleas. I. S. and for Trespasse done upon his Land it was demanded of the Court in whose name J. S. should bring the action and their opinion was that it should be in the name of the Lunatick Trinity 16. Jac. In the Kings Bench. The Earl of Northumberlands Case THe Earl of Northumberland being seised of the Mannor of Thistleworth in which he had a Leet to be holden twice a year to wit within a moneth after Easter and a moneth after Michaelmas and Henry Devell being a Free-holder of the said Mannor erected a new Dove-coat at Heston within the Precinct of the said Leet which was presented at the Leet for a common Nusance for which Devell was amerced 40 s. and was commanded to remove it upon pain of 10 l. for the which a Distresse was taken by Henry Sanders and others as Bailiffs to the said Earl wherupon Devell brought a Replevin and they made Avowry and justified as Bayliffs and prescribed that they used to make by-laws to redresse common Nusances and also prescribed in the Distresse And the point in question was whether the new erecting of a Dove-coat by a Free-holder were a common Nusance punishable Whether the erecting of a Dove-coat be a common Nusance in the Leet And it was resolved by the whole Court upon
levied yet the Vse shall be directed by the originall Indenture and therfore 6 Rich. 2. A Feoffment is made to two and their Heirs and afterwards a Fine is levied upon it for further assurance to the use of them and the Heirs of one of them yet it shall go to the use of both for it shall be respected according to the original agreement where there are divers assurances for the perfecting of one and the same thing 16 E. 3. tit Age. A Daughter had a Seigniory by descent a Tenancy Escheats a Son is born he shall have the Land see Sharoes case in 4 Mar. Dyer and in Chadleighs case all looks to the originall agreement and therfore variance of time shall not hinder the originall agreement as 33. Ass the Servant inâ—ends to kill his Master and afterwards the Master puts him out of his Service and then he kills him this shall be petty Treason in the Servant 28 H. 6. Two are bound in a Bond at severall times and yet he shall declare against both as upon the first delivery 11 H. 7. it is adjudged that if a Deed be delivered by an Infant and afterwards it is again delivered when he comes of full age And see Mallories case Finches case and Borastons case Nunc tunc quando are a demonstration of the time and not of the matter and so they concluded that the Vse shall rise upon the first Indenture and not upon the Fine or Replevin brought but Doderidge and Haughton Iustices contra Trin. 17. Jac. In the Kings Bench. Silvesters Case JOhn Silvester promised to John B. that if he would marry his Daughter that he would give with her a Childs part and that at the time of his death he would give to her as much as to any of his Children excepting his eldest Son and afterwards he made his Executors and died I. B. brought an action upon the case against the Executors upon this Promise and shewed that the Executor had not given him a Childs part and that such a younger Son of the Testators had a 100 l. given him And it was resolved by the Court that the promise of a Childs part is altogether incertain but being so much as any of his Children had and then shewing that the younger Son had a 100 l. this was certain enough and therupon Iudgment was given for the Plaintiff The same Term in the same Court. Godfrey and Owen COrnelius Godfrey was Plaintiff in an action upon the case for Words He is a very Varlet and seeks to supâ—res his brothers Will c. words against Owen Defendant and the words were these to wit He is a very Varlet and seeks to suppresse his Broâ—hers Will he makes shew of Religion but he is a very Hypocrite And the words were spâ—ken of a Merchant to one who gave him much credite in his Trade Mountague chief Iustice said that the words which are actionable in such a case ought to touch the Plaintiff in his Profession which these do not do Et relata ad personam intelligi debent secundum conditionem personae for in the suppressing of his Brothers Will the case might be such that he might well do it for perhaps there may be an after Will made And for calling him Hypocrite lies not in the conusance of the Common Law for GOD only can judge of the heart of man and therfore these words do not touch the Plaintiff as he is a Merchant Doderidge Iustice Words ought to tend some way to the ruine of the party or otherwise they are not actionable and Iudgment was given Quod quere nil capiat per billam Mich. 17. Jac. In the Star Chamber Sis John Bingleys Case IN Sir John Bingleys case in the Star Chamber it was resolved by the two chief Iustices Mountague and Hobart and agreed by the Lord Verulam Lord Chancellor and Sir Edward Coke that if an Information be exhibited there which begins with divers particular misdemeanours and conclude in the generall that 1. The matter included in the generall charge ought to be Ejusdem generis 2. They ought to exceed the particulars expressed in number 3. They ought not to be greater or more capitall wherupon Mountague cited the Statute which speaks of Deans and other Spirituall persons upon which it hath been resolved that Bishops are not within it for they are of a higher degree and the principall reason of these rules was because that a man cannot possibly make a defence because he knews not what will be objected against him and upon this Sir John Bingley was discharged at this time for the most transcendent Offence that was objected against him to wit concerning Captain Baugh and other Pirates to whom the King of his grace and bounty had given 200 l. to make them Loyall Subjects But Sir John Bingley Colore officii had defrauded them of almost An Officer â— his own wrong all of it for the want wherof some of them died miserably and the rest became Pirates again But Sir John Bingley made many protestations of his innocence in this mâ—tter And it was holden also that one might be an Officer of his own wrong as their might be an Executor of his own wrong And this was Sir John Bingleys case for somthing in the information for he committed Extortion Colore officii The same Term in the Star Chamber THe Attorney-generall put in an Information against divers Dutch Merchants for buying and transporting of many great summs of Gold and Silver Bullion And it was said by the Court that divers Statutes had been made for redresse of this mischief as the Statute of 5 R. 2. the Offenders wherof ought to forfeit all they may and by another Statute in 17 E. 4. this Offence was made Felony to continue for seven years But the Court would not now punish them upon any Statute for it was an offence at common To carry Gold and Silver out of the Realm punishable at Common Law Law and therfore punishable in this Court And Sir Edward Coke said that if any be to be punisht upon a penal Statute it ought to be within two or three years at least after the offence committed for the Informer hath but a year to sue and the King two years for the most part The Statutes of 37 E. 3. and 5 E. 6. Prohibite the buying of Coin and that it is so at the Common Law see 21 E. 3. 60. and Plow 215. and not only he that buyes but he that sels also offends in it for it is a Prerogative only belonging to the King and it is his Coin and none can put a value upon it but himself which is a Flower of his Crown Hobart chief Iustice of the Common Pleas as one shall be punished for ingrossing any Commodity a Fortiori one shall be punished for ingrossing and buying of a great quantity of money all other Commodities being thereby ingrossed for money is the Mistresse of commerce Pecunia
est rerum omnium vendendarum mensura Bracton 117. 18 E. 3. Hollinghead 109. 50 E. 3. Rot. Pat. Memb. 7. And for transportation 17 E. 3. 19 E. 3. Rot. Pat. 24. De monetis non transportandis 19 R. 2. Rot. Pat. The Dutches of obtained licence to melt Coin to make Plate And divers of the Defendants were within the Kings generall pardon but in as much as they pleaded it in their Rejoynder and not in their answer as it ought to be the Court over-ruled their Plea so that they could have no advantage therby But in as much as they were strangers and not coâ—usant of our Laws and relyed only upon their Counsell the Court had consideration therof in their censure Hillary 17 Jac. In the Kings Bench. Serle versus Mander SErle brought an action upon the case against Mahder for these words to Words I arrest you upon Felony wit I arrest you upon Felony and after Verdict for the Plaintiff it was moved in Arrest of Iudgment by Richardson that the words were not actionable for he doth not say that the Plaintiff had committed Felony But it was rescived by the Court and so adjudged that the action lieth The same Term in the same Court A Iudgment was obtained against one of the Servants of the Lord Hay Iudgment against a Defendant when beyond Sea with an Ambassador reversed Viscount Doncaster when he was Ambassador in Bohemia and attending upon him there And this matter being disclosed to the Court by the Counsell of the Defendant they would not suffer the Plaintiff to have execution upon the said Iudgment but ordered the Plaintiff to declare De novo to which the Defendant should presently answer Memorand It was said to be against the course of the Court to have an Imparlance Imparlance before the Declaration entred The same Term in the same Court The King against Briggs A Quo warranto was brought by the King against Briggs for exercising A Subject cannot have a Forest of certain Priviledges who justified by virtue of a Forest granted to him And by Bridgeman this is the first Quo warranto which he knew that had been brought against any Subject for a Forest for a Subject cannot have a Forest but he may have a Chase which peradventure may passe under the name of a Forest And there are divers incidents to a Forest which a Subject cannot use nor have there ought to be a Iustice of a Forest which a Subject cannot have and such a Iustice ought to be a man of great Dignity 2. There ought to be Verderors who are Iudges also and by 34 E. 1. Ordinatio Forrestae ought to be by Wait but a Subject cannot award a Writ Also there are three Courts incident to a Forest 1. A Court of Attachments which may be without Verderors 2. The Swanimate Court 3. The Iustice seat and this appeareth in 1. E. 3. cap. 8. 21 E. 4. cap. 8 But by the Statute of 27 H. 8. cap. 7. There are some other incidents to a Forest 2. Admits that a Subject may have a Forest yet it fails in this case because he hath shown the exemplification and not the Letters Patents and see Co. lib. 5. Pains case that neither an exemplification or constat are pleadable at Common Law and Co. lib. 10. Dr. Leyfeilds case The same Term in the same Court Sir William Webb versus Paternoster THe case was this Sir William Plummer licensed Sir William Webb to lay his Hay upon the Land of the said Sir William Plummer untill he could conveniently sell it and then Sir William Plummer did make a Lease of the Land to Paternoster who put in his Cattell and they eat up the Hay And it was two years between the license and the putting in of the Cattell and yet Sir William Webb brought an action of Trespasse against Paternester for this Mountague chief Iustice 1. This is an Interest which chargeth the Land into whosoever hands it comes and Webb shall have a reasonable and convenient time to sell his Hay 2. The Lessee ought to give notice to Notice Sir William Webb of the Lease before he ought to put in his Cattell to which Haughton Iustice agreed in both points But Doderidge Iustice said that Sir William Webb had no certain time by this license yet he conceived that he ought to have notice But it was resolved that the Plaintiff had Convenient time a convenient time to wit two years for the removing of his Hay and therfore Iudgment was given against him But admit that there had not been a convenient time yet the Court was of opinion that the Plaintiff ought to have inclosed the Land at his perill for the preservation of his Hay And it was agreed that a license is countermandable although it be concerning A license whether for profit or pleasure countermandable profit or pleasure unlesse there be a certain time in the license as if I license one to dig Clay in my Land this is evocable and may be countermanded although it be in point of profit which is a stronger case then a license of pleasure see 13 H. 7. The Dutches of Suffolks case for a license The same Term in the same Court SIbill Westerman brought an action upon the case against Eversall and had Error Sibell for Isabell Iudgment and in the entry of the Iudgment she was named Isabell 1 Ass and 3. Ass A Fine was levied by Sibill when her name was Isabell and it was not good for it doth not appear to be the same party so in the case at the Bar And for this the Iudgment was reversed The same Term in the same Court JEne as Executor of brought an action upon the case against Chester An Infant chargable for necessary Apparrell because the Defendant made request to the Testator of the Plaintiff to buy for him certain silk Stuffs for Apparrel and to make him a Cloak the Defendant pleaded that he was within age and George Crook said that the Defendant should not be charged because it is not shewn that the Apparrell was for the Infant himself but he was over-ruled in this for it is sufficiently expressed to be for him And it was agreed by the Court that it ought to be shewn that it was Pro necessario vestitu and it ought to be suitable to his calling and as Doderidge said that there was a case adjudged in this Court between Stone Withipole that where Withipole had taken of Stone certain Stuffs for Apparrel being within age and afterwards he promised payment if he would forbeare him some time and the Assumpsit adjudged not good because he was not liable for the Debt at first for the reason aforesaid Trin. 17. Jac. In the Common Bench. Gilbert de Hoptons Case AN action upon the case was brought for those words viz. Thou art a Words Thou art a Theef and hast stoln my Furze Theef and hast stoln
was given this day The same Term in the same Court. Goodwin versus Willoughby GOodwin brought an action upon the case against Joane Willoughby wife of Thomas Willoughby and upon non Assumpsit pleaded it being found for the Plaintiff it was moved in Arrest of Iudgment 1. That the Plaintiff shews that Thomas Willoughby was indebted upon account and doth not shew that Joane Willoughby is Executrix or Administratrix and yet that she promised to pay wheras in truth she hath no cause to pay for there is no consideration and so Nudum pactum Jermy for the Plaintiff for the first because it doth not appear for what cause he accounted I answer that this is but a meer conveyance And for the second that she does not suppose that the Feme is executrix c. But here is a good consideration which is that she shall not sue or molest and that he gave day for payment this is a sufficient consideration But Stone of counsell with the Defendant said that the first is the ground of the action and therfore he ought to shew for what he accounted Crew chief Iustice two exceptions have been taken 1. For the alledging the manner of the account which I conceive is good enough and he need not shew the cause of the account And as to the second because it doth not appear that she is Executrix or Administratrix and so no consideration and so no Assumpsit But here she assumes to be Debtor and makes a promise to pay which is an acknowledgment of the Debt by inference and therfore he conceived that the Assumpsit was good Doderidge Iustice for the first it is good enough yet Cum indebitatus existit is no good Assumpsit but here he shows a speciall way of Debt and it would be long and tedious to describe his account For the second there is no cause of action because it doth not appear that she is Executrix or Administratrix or Executrix of her own wrong If I say to one do not trouble me and I will give you so much this is not actionable for there ought to be a lawfull ground and for this cause the Declaration Where forbearance without cause of action is no ground of an Assumpsit is void for it is only to avoid molestation Give me time c. this is no good Assumpsit for forbearance is no ground of action where he hath no cause to have Debt Jones Iustice agreed in the first with them because a generall action upon the case sufficeth and in truth it is but an inducement to the action but for the other part he doubted and he cited one Withypools case an Infant within age promised to pay certain money he makes an Executor and dies within age the Executor saith to him to whom the promise is made forbear and I will pay you and there an action upon the case did lye against the Executor upon this promise and yet it was a void Contract but there was colour of action forbear till such a time now the other hath lost the advantage of his Suit But he gave no opinion Crew It is a violent presumption that he is indebted But by Doderidge here is no colour to charge her but only by inference that she is Executrix If a stranger saith forbear such a Debt of J. S. and I will pay it it is a good consideration for the losse to the Plaintiff and in this case it appears not that there is any cause and Broom Secondary said that Withypools case before cited was reversed in the Exchequer Chamber Jones If an Infant makes a promise it is void and he may plead non Assumpsit which Doderidge did not deny But upon his Obligation he cannot plead Non est factum for he said that he shall be bound by his hands but not by his mouth The same Term in the same Court Drope versus Theyar IN Debt by Drope against Theyar an Inne-keeper upon Issue joyned and a Verdict for the Plaintiff Bolstred moved in Arrest of judgment for the Defendant and the matter was that one Rowly who was servant to Drope lodged in the White Heart at S. Giles and there had certain Goods of his Masters which were stoln from him in the night and Drope the Master brought an action therupon and it was moved by Bolstred that the Plaintiff was without remedy 1. Because it was in an Inne in London for the Register 105. is Quando quis depraedatus euns per patriam which as he said could not be extended to an Inne in London 2. It ought to be an Inne as Inne-keeper 3. He ought to be as a Guest lodging and this appeareth in Culeys case in 5 Jac. in Celly and Clarks case which was entred Pasch 4. Jac. Rot. 254. It was adjudged that where the Guest give his Goods to his Host to deliver to him three daies after and the goods are lost that an action is not maintainable against the Inne-keeper for them and this was in an Inne in Uxbridge And in one Sands case where the Guest came in the morning and his Goods were taken before night he shall have an action against the Inne-keeper 4. The Goods ought to be the Goods of the party who lodgeth there for the words are Ita quod hospitibus damna non eveniunt and here the Master who brought the action was not Guest But admit the Master shall have the action yet he ought to alledge a custom that the Master shall have the action for the Goods taken from his Servant Trin. 17 Jac. Rot. 1535. Bidle and the Master brought an action for Goods taken from the Servant and there it was resolved that he ought to conclude that Pro defectu c. and apply the custom to him being Master Sec Co. Book of Entries 345. And that a custom that for other mens Goods in the custody of Guests the Owner shall have an action against the Inne-keeper if they be stollen Ob. This is the Common Law and therfore ought not to be alledged Answ Where a man takes upon him to shew a custom he ought to shew it precisely he cited Heydons case Co. lib. 3. 28 H. 8. Dyer 38. And it was said for the Plaintiff that Goods are in the possession of the Master which are in the possession of his Servant and so here the Master might have had action well enough 8 E. 4. my Servant makes a Contract or â—â—ies Goods to my use I am liable and it is my act By the Court an Inne in London is an Inne and if a Guest be robbed in such an Inne he shall have remedy as if he were Enns per patriam But the cheife point was whether the master shall have the action in the case where the Servant lost the goods and by Jones Justice in 26 Eliz. in C. B. upon the Statute of Hue and Cry it was resolved that if the Servant be robbed the Master may have the Action and so by him
be not named in the Statute old Nat. Brevium 103. An Executor shall have a Quare impedit for a disturbance made in vita Testator and 7. H. 4. 6. and old Nat. Brev. 123. b. An Executor shall have an Ejectione firmae of an ouster made to the Testator 17. E. 3. Executors 106. An Executor shall have a Replevin of Goods taken in vita Testatoris and it hath been oftentimes resolved that an Executor shal have a Trover and Conversion of Goods taken and converted in vita Testator Doderidge demanded of him the reason why an Action upon the Case upon an Escape in the life of the Testator should not lye against an Executor to which he answered because it was a meer personall wrong Doderidge so is the wrong here and he said that an Executor cannot have an action Vi armis for a trespas done in vita Testator and in this case because the escape was in vita Testator it is a personall wrong to him for which the Executor shall not have an action upon the case But it had been otherwise if the escape had been after the death of the Testator and the Statute of 7. E. 3. doth not extend to it because this Statute is only for Goods but I agree to the case of Trover and Conversion Jones Justice If this action upon the case will not lye by the Executor it would be a mischievous case for as soon as the Creditor dies the Goalor will and may suffer the Prisoner to escape because none can have an action against him but as it appeareth by the Case of 15. Eliz. Dyer The case is as mischievous for the Creditor if the Goalor suffers an escape and dyes for there no action lyes against the Executors And for the case of Quare impedit I agree to it and so it was resolved in Brokesbyes Case 31. Eliz. that an Executor shall have a Quare impedit for a disturbance made in vita Testator if the avoydance be a Chattel vested and therefore within the equity of the Statute which gives an action de bonis Testator and he was commanded to move it another time And at another day in Hillary Term next after Grigs said for the Defendant that the Executor cannot have this action for an escape in vita Testator because it is a meer personall action given to the Testator moritur cum persona and cited 15. Eliz. Dyer Whitakers Case and that it is meerly personall appeareth by 10. Eliz. Dyer 271. Where an Executor shall not be charged with an ascape in vita testator generally where not guilty is a good Plea there an Action doth not lye for it against Executors And this Case is not within the equity of the Statute of 4. E. 7. But it hath been objected that an Ejectione firmae is within the equity of this Statute for the Executors to have it 7. H. 4. 6. but the reason there is because it is to recover the Term it selfe and not dâ—mages only and upon the same reason an Action of Covenant upon a Covenant broken in the life of the Testator is maintainable by an Executor and that also is the reason of the Case of the Qua impedit because there the presentation is to be recorded but in our Case damages only are to be recorded upon the escape and so they are not alike 2. The Arrest here is upon mean Proces and upon a Bill of Middlesex which is but in nature of a Trespasse before Declaration and I conceive that if one be taken by a Cap ad satisfaciendum at the sute of one albeit the party at whose Suit he is taken dyes yet he shall be detained in execution but I conceive the Law to be otherwise upon a Cap ad respondend and albeit the Plaintiff saith that the Arrest was ea intentione to declare against him in an Action of Debt yet an intent is a secret thing and albeit the Executor represent the person of the Testator yet he cannot follow it and it is impossible to prove the intent Jermy for the Plaintiff said that there is a difference where an Action is brought by and where against Executors and this appeareth by Littletons Case that an Action of account doth not lye against Executors for want of privity as to that purpose but it is cleer that account lies by Executors because this is a point of interest And here in this Case the Testator had interest in the body by the arrest and this appeareth in Hichcocks Case cited in Hargraves Case in the Lord Cooks 5. Report and by the Arrest the body of the party is as a Chattel in the Testator and he compared this to the case of 7. H. 4. 2. 3. Fitzherberts Executors 52. An Executor shall have a ravishment of ward for a taking in the time of the Testator And 7 H. 4. 6. and a Case cited by Hankford that if one enter upon a Statute Merchant who dyes his Executor shall have an assize and therefore I conceive that if a Tenant by Elegit be ousted and bring an Assize if the Executors be custed again he shall have a redisseisen upon the first â—uster because the Interest continues in him which was in the first Testator and it is to be observed in our law that the Law inlargeth it selfe to give to Executors the same remedy which the Testator had and thereupon he cited Co. lib. 6. 80. a. 3. Eliz. Dyer 301. And in our Case the body of the party was in the Testator as a gage till appearance so that it was not only a personall tort for he had an interest and this appeareth by Co. lib. 5. 27. by a Case put in Russels Case there and if the Executors shall not in this Case have an Action it would be very mischievous for so the Goalor shall suffer escapes dispunishable 20. E. 3. Fitz. Executors 74. But as to this reason it was answered by Jones Justice that the same mischiefe is of the other side if the Goaler suffer an escape and dies and Action lies not against his executors Calthrop on the same side cited F. N. B. 121. a. that a man condemned in debt and imprisoned if the Goalor suffer him to escape the Party or his Executor may have debt against the Goalor And he said that at Common Law Debt lay against a Goalor upon an escape as appeares in Fitz. Debt 127. 38. H. C. placit 36. And if it were a debt in the Testator then Executors may have an Action upon it But by Doderidge Iustice in the said case debt lies not at Common-Law for to what purpose was the Statute made But for the point in Question his sudden opinion was the Executor shall have this Action and that it is within the equity of the Statute of 4. E. 3. for it is a wrong although it were upon meane Proces and the tort continues as to the Executor for every thing which makes to the hinderance of the Execution of the
Terme in the same Court WEld of the Inner Temple moved for a Prohibition to the Ecclesiasticall Court at Worcester and shewed for cause 1. That the suit there was for money which by the assent of the greater part of the Parishioners of D. was assessed upon the Plaintiffe for the reparations of the Church to wit for the recasting of their Bels the truth is that the charge was for the making of new Bels where there were four before whereby it appears that it is meerly matter of curiosity and not of necessity for which Parishioners shall not he liable to such taxations and he relied upon 44. E. 3. 19. by Finchden 2 The party there is overcharged of which the Common Law shall Judge 3 The Party hath alledged a Custome that he and all those who hath an estate in such a Tenement have used to pay but 11 s. for any reparation of the Church But the Prohibition was denied and by Doderidge in the Book of 44 E. 3. there was a By-law in the case to distrain which is a thing meerly temporal for which the Prohibition was granted per Curiam in this case the assessment by the major part of the Parishioners binds the party albeit he assented not to it and the Court seemed to be of Opinion that the Custome was not reasonable because iâ—â—aid a burthen upon the rest of the Parish Littleton of Counsell of the other side suppose the Church falls shall he pay but 11 s. Whitlock If the Church falls the Parishioners are not bound to build it up again which was not denied by Justice Jones The same Term in the same Court A Prohibition was prayed because a person had libelled in the Ecclesiasticall Court for the tenth part of a bargain of Sheep which had depastured in the Parish from Michaelmas to Lady day and the party surmised that he would pay the tenth of the Wooll of them according to the custome of the Parish But the Prohibition was denyed for as Doderidge Iustice sayd by this way the person shall bee defrauded of all if he shall not have his recompence for now the Sheepe are gone to another Parish and he cannot have any Wooll at this time because it was not the time of sheering Nota per Whitlock de animalibus inutilibus the Person shall have the tenth part of the bargain for depasturing as Horses Oxen c. but de Animalibus Utilibus he shall have the Tith in specie as Cowes Sheep c. The same Term in the same Court UPon an Issue joyned in an Ejectione firmae it was found for the Plaintiff and Lewkoor moved in arrest c. because the Ejectione firmae was de Messuagio â—ive Tenemento which is not good for the incertainty and so it was resolved 12. Jac. in this Court and Ejectione firmae lies not De Tenemento Co. lib. 11. 54. Savils case And it was resolved in the Exchequor-chamber that it lies not de pecia terrae and in this Court in Rhetorick and Chappels Case it was resolved that it lyes not De Mess Tenemento The same Term in the same Court Sir Robert Browne against Sir Robert Stroud IN debt upon an Obligation for performance of certain Covenants contained in certain Indentures made between the Parties aforesaid and the Covenant upon which the question did arise was this R. B. being seised of the Mannor of Dale S. R. S. of the Mannor of Sale they exchanged the one for the other and the Mannor of R. B. being more worth then the Mannor of R. S. R. S. covenanted to pay for the said Mannor 1200 l. and no time was limited when the money should be payd and the money not being payd within a year after R. B. bargained and sold the said Mannor by Deed indented and inrolled to J. S. and his Heirs and afterwards brought an Action of Debt against the said R. S. for the said 1200 l. who pleaded this mater in Bar and Jermy argued for the Plaintiff that this Plea shall not discharge the Defendant of the said Covenant for it is a reciprocall covenant and he ought to sue the other Party for the breach of the covenant and it is a perfect bargain Dyer 30. 14. H. 8. 9. and here the Agreement is in writing and it is good albeit there be no limitation when the money shall be payd 37. H. 6. 9. Calthrop for the Defendant that the Action could not lyâ— for the contract is Executory and therefore is not to pay the money till he hath the Mannor for the Covenant is that pro Maner c. he should pay him 1200 l. and the word pro implies a condition and consideration and being excecutory on the one part shall be also executory on the other part 9. E. 4. 20. 21. Abridg. in Plowden 134. in Browning and Bestons case 15. E. 4. 4. If A. grant to B. all the ancient Pale and for them B. grants that he will make new Pale for A. if B. cannot have the old Pale he shall be excused from making the new Pale for he cannot have the one without doing the other 6. E. 6. Dyer 75. The contract was pro 20. which makes a condition 15. H. 7. 10. by Fineaux If a man covenant with me to serve me for a yeare and I covenant to give him 10 l. he shall have an Action for the 10 l. although hee do not serve me otherwise if I covenant to give him 10 l. for his service Also there is no time limited when the payment shall be made true it is that in Co. lib. 6. 30. when the act to be done is a transitory act and no time is limited there it ought to be done in convenient time but the Law shall judge of the conveniency of this time and the Law will never judge the time of payment to be before he hath the Mannor pro quo c. In many cases when no time is limited the Law will appoint a time as appeareth in 33. H. 6. 48. and Perkins 799. But now in our case the Law will never appoint that this money shall be payd because the other party hath disabled himselfe to perform his part like to Sir Anthony Maines case Co. lib. 5. 21. Doderidge The bargain is not perfect because no day of payment is limited and the other shall have no Action of Debt for the money before he hath the Mannor Jones If I covenant to make a Feoffment to J. S. and he covenant in consideration of that Covenant to pay me 10 l. he shall have an Action of Debt against me before he hath made the Feoffment And at another day in Trinity Term. 3. Car. Noy argued for the Plaintiff and opened the case thus Amongst other Covenants in certain Indentures between them it was agreed that wheras Sir R. Brown the Father was sâ—ized of the MaÌ„nor of Gadmaston with the Advowson appendent Sir R. Stroud of the MaÌ„nor of D. within the same CouÌ„ty that there
will remember but one book upon which I will rely 27. H. 8. 24. Jordons Case in an Action upon the Case the Defendant assumed to the Plaintiffe that if the Plaintiffe would discharge I. T. of such an Execution in which he is bound at the suit of the Plaintiffe then if I. T. did not satisfie the Plaintiffe by such a day the Defendant would do it and they were at Issue upon an Assumpsit and there the Count is admitted good and he need not plead it was by writing because the Discharge is good without writing but it hath been resolved that if a man be in execution at my suit and I go to the Sheriffe and command him to discharge the Party this is a good Discharge although it be by Peroll Jones If I say to the Sheriff suffer the party to go at large this is a good release both to the party and to the Sheriffe and by him relaxavit implies a sufficient release and therefore the Plaintiffe in the Writ of Errour shall be barred And if a man be bound to save one harmlesse in an Action brought upon this obligation he pleads that he hath saved him harmlesse and shews not how the Plaintiffe demurres generally he shall not now take advantage of it Doderidge The Cases put by Bolstred are not to this purpose for all those cases are of things in certaine and he agreed that a release by perol was sufficient and the case of 22. H. 8. is a stronger case then this is Whitlock agreed also and therefore Doderidge advised the Plaintiff to be satisfied or otherwise they would affirm the first Judgement Trin 2. Car. in the Kings Bench. Caryes Case IN Caryes case of Grayes Inne where these words were adjudged actionable You a Councellor a Foole an Asse a Hangman a Councellor of Law a Foole in the Profession it was said by Jones Instice it was not sufficient to say that he was eruditus in Lege but he ought to say that he was Homo Conciliarius and he said that in maintainance against Boughton it came in question upon evidence to a Iury whether one who is a Barrister may give advice and it was ruled that he could not albeit he had Letters Patents to inable him as fully as if he had been called to the Bar and in Fleetwoods case adjudged that these words You the Kings Receiver you are his Deceiver are you not were actionable The same Term in the same Court SIr Tho. Savill was indited for breach of the peace within the Pallace to wit for assaulting Sir Fran Wortley and he pleaded his pardon and Doderidge said that to strike in the place was the losse of the right hand by the Law and in this poynt our Law agrees with the Lawes of France and Spain and all other Nations for as the person of the King so his Palace and courts of Iustice are so sacred that such contempts and affronts are judged worthy of such punishments and said that the Book of 24. E. 3. 33. Fitzherbert Forfeiture 22. of which he would have Students to take notice is that where one came into the Palace armed and being brought to the Barre in his compleat armor the cause was demanded and he said that it was in his own defence being in fear of a great man then in Court and he was committed to Prison by the Court during the Kings pleasure and his Lands forfeited during his life Vide for the like matter 41. E. 3. Fitzh Coron 280. Dyer 188. 22. E. 3. 13. Hillar 2. Car. in the Kings Bench. ONe Mathias Wheelhorse was indited at the Sessions of the Peace holden in the Town of Northampton quia Noctivagus and because he divers dayes and nights did frequent the house of c. which was within the liberties of Southampton and was a suspected Bawdy-house and Crawley Sergeant moved that this Inditement was insufficient for three reasons 1. Because it does not appeare in the Inditement that the party knew this to be a Bawdy-house 2. Because it is not said that it was a Bawdy-house but that it was susspected to be a Bawdy-house 3. Because the Inditement is before Iustices of Peace Villae de Northampt and the house is infra libertates Villae de Northampt. and it shall not be intended that the power of the Iustices of Peace extend thither and for it see Co. lib 5. 120. Longs case 13. H. 7. 33. 34. 22. H. 7. Kelleway 89. Co. lib. 9. Mackaleys case And the Court gave no opinion concerning the exceptions But another thing was moved to wit that one could not be indited before Iustices of peace for being Noctivagus but this is to be inquired of in the Leet and in this the whole Court was against him for it is a misdemeanor and it is contrary to the Statute of Winchester and every one may arrest him And at another day he moved this last exception again and sayd that the Iustices of Peace have no power to fine men that are noctivagant yet true it is that a Court-Leet hath such a power Rastol Leet 2. and true it is also as it is in 4. H. 7. 1. 2. that every one may arrest a Night-walker but there it is said that if he appeareth to be a man of good fame the party who arrests him ought to let him go at large and the Inditement here is only that he was Noctivagus it appears not that he is a suspicious Night-walker by Doderidge Whitlock Iustices only present by the Common Law every man may arrest him who is Noctivagus and the word Noctivagus implies that he was a common Night-walker and they sayd that Iustices of peace by their Commission have power to take such Inditements for it is of ill behaviour and albeit the Inditement were nought for the other exceptions yet being good in this it shall not be quasht and therefore Iudgement was given upon it and the party fined 40 s. The same Term in the same Court. Sparrow versus Sherwood IN Trover and Conversion of two loads of Fitches of certain Land c. The Defendant justifie by the command of Hare to whom part of the Land belongs and to one Pots to whom another part in right of the Lady his Wife belongs and shews that part of the Fitches did grow upon the Land of one and part upon the Land of the other and upon this the Plaintiff demurs 1. Because he justifies by the command of two generally and he cannot justifie upon the Land of the one by the command of the other and therefore he ought to have alledged severall commands 2. Because he does not shew particularly upon whose Land the Fitches grew but that part grew upon the Land of one and part upon the Land of the other which is incertain 3. Because the Wife of Pots is called by the name of Lady and the Wife of an Esquire cannot be a Lady Doderidge and Whitlock onely present for the first were of opinion
the Executor of the Lessee shall be Assets 188 Assault and Battery 13 In what case it lieth not against a Constable 13 Assurance 19 Arbitrement 134 Of one part only not good 134 Avowry 163 Authority 1. 194 to enquire upon severall Commissions A joynt Inquisition cannot be returned 94 Averment 28. 158 Not to avoid a Record 29 Wher it must be of Levant Couchant by the party 201. error 201 Award 15 16 B. BAile discharged by death of the Principals 186 How it shall relate 132 In the Kings Bench and the Common Pleas differ 132 When suspended by a Writ of Error brought 186 Bar. 1. 112. 167. 114 Not good for want of traverse è contr 67 68 Void for incertainty 204. 209 Bargain and Sale  By word not good 48 To one and his Heirâ— to the use of another where void 81 Burglary 42. 52. 84 Brief Of entry of an Advowson 22 C. CErtiore 202. Of the names of the Jurors To remove Indictment 144 Chattels 5 Charge 5. 86. 152. 196 Where avoided by entry for a condition broken 50 51 Charitable uses 7. 139 Charters 17 Clergy  Where allowable 52 Claim  Where it determines the Estate 64 è contr 64 Common recovery 6 Of Advowson 23 By Tenant for life a forfeiture 23 Need not be averred 24 is a baâ— of all Rights 10â— Certainty  A thing incertain made certain bâ— matter ex post facto 18â— In performance of Covenants whâ— is to do the first act 19â— Where joynt and severall 20â— 204 Condition 27. 53. 58. to pay money payment shall be upon the Land 11 Repugnant 16. void for uncertainty 99 Given to the King by Attainder 19 Inseparable and not to be transferred 19 Words conditionall 25. 198. 199 Where payment of money in part by fraud shall be no performance of it 100 When to be performed to the Assignee and not to the Heire 100 Taken strictly 104. within convenient time 199 Not to allien and he deviseth if broken 106 Where the word paying is a Condition where a confidence 11 Where discharged by the disability of the party to perform it 110. 198 Confirmation 105 131 cannot enlarge an Estate which is determinable upon a condition 52 Contingency 21 Contribution 155 Constable  his Office and authority 13 Contract 150. 209 Contempts and affronts before Courts of Justice how punished 288 Copyhold 125 Intailed where good where not 34. 129 Granted by Disseisin avoided by the Disseisee 71 Copyholder  Surrender of a Copyhold cannot surrender before admittance 128 Covenant 22. 109. 110. 146. 161. 198 200. 204 Lyeth not against an Executor of a Lessee after Assignment 137 To pay money pro terris and no time limited  Where conditionall and Executory 196 County where chargeable repairing Bridges 192 Counts 25 57 Courts  Ecclesiasticall Court ought to take notice of the Common Law 133 Costs  De incremento must be ad petitionem quaerentis 209 Cui in vita 39. 13 Custome  which layes a burthen upon Parishioners not good 197 D DAy where a precise day must be alledged where not 201 Demand 58 In the Disjunctive 23 Of a Messuage or house how it ought to be 14 15 Of a piece of Land 13 14 Of a Rent at what place 58 Of a Pension 23 Demurrer  No repleader after it 42 Demise of the King to be taken notice of 23 Deodand 136 Departure 3â— Deprivation 37 By the high Commissioners for speaking contumelious words against the Book of Common-Prayer 59 Debt 85. 98. 109. 173. 164 Where maintainable by Granter of the Reversion against the Assign for a Rent arrear 55 Where it lieth not for want of privity of contract ibid. Not maintainable by the Successor of a Prebend for Rent incurred in the time of the Predecessour against an Executor 102 Not for an escape upon a mean process in vit Testator 189. 190 Devise 91. 52. 188 To charitaâ—ble use 6. 7 Upon Trust 7 Of Gavel kind Lands 10 Of a Rent 131 Construed according to the intent of the Devisor 131. 188 Of a summe of money 133 Is an ailenation 107 Dove-cotes 142 Descent of a Copyholder doth not take away Entrie 35 E EJectione firmae  Upon a Lease of a Copyhold 38 Lyeth not of a water course 167 Lyeth for an executor 190. 191 De Messuagio five Tenemento void 203 Election 86. 153. 95 Enfant  Must answer by Guardian but may bring Action by Attorney 130 Chargeable for necessarik 151 Error 24. 100. 102. 111. 109. 193. 114 130. 151. 203. 211 Where it is in the discretion of the Court to allow a Writ of  Error 132 Is. A supersedeas in it self 132 Escape 41. 85. 131 Estates  To two joyntly and severally for their lives they are Tenants in common 52 Determined by death 86 Tail with Fee expectant 138 Where they shall passe by Livery where by Declaration of use 47. 49 Estoppel 115 Exchange 198 Execution one in Execution discharged by word 206 Where the party taken again upon a fresh suit shall be again in Execution 41 Against Terrtenants 152 Executors shall take benefit of a geral pardon 142 Infant Executor may take mony Release and give acquittance 130 What Actions are maintainable by Error 189. 190. 191 Exemplification  not pleadable 151 Exception 1. of Trees 194. 195. Of profits 196 Of Woods Copices the soyle is is excepted 146 Exposition of Statutes  Of Stat. 23. H. 8. of charitable uses 7 Of Stat. 14. Eliz. of Leases to Colledges 9 Of Stat. 13. Eliz of 13. Eliz. of Fugitives 18 Of Stat. 32. and 34. H. 8 of Wâ—lls 89. 90 Of Stat. 27. Eliz. concerning Jesuits 93 Of 8. Eliz. cap 4. 107 Of 29. Eliz. cap. 4. 173 Of 22. H. 8. of reparation of Bridges 192 Exposition of words  Of the word Subject 69 Of the word Twelvemonth 104 Scilicet 201 Postea 291 Extinguishment of a Lease 30 Where a Term or other thing shall be extinguished as to one and in Esse to another 40 By unity of possession where and where not 166 167 168 169 170 171 F FAlsifying Recovery 6 Fees  For serving Executions 174 175 Feoffments 103 Inrolled without Livery not good 8 To uses 3 Fine  Imposed by the High Commissioners 60 Fines levied 62 108. 112 How Proclamations thereupon shal enure 63 by a Disseison where a good bar 65 not construed to other Lands then are mentioned in the Deed which lead the uses 105 Forfeiture 84 105 Of a Copy-holder for not paying his Fine  Of the Office of Leivtenant of a Forrest 117 Formedon 112 Forrests 117. 150 Fraud  added 19 Fugitives 18 Freehold  cannot begin at a day to come 47 Franchises where forfeited by Non-claim 181 G GRants 86 Not voyd by addition of word  Of Ornament 57 Where Acres in a Grant shalâ— be according to Statute Acres or according to Estimation of the place 55 Of the Office of Keepership 116 Where it
in themselves do purport And if it had been good for the matter yet it is not good for the form for want of a Traverse for without the Traverse the plea is not answered in that case which is laid to the charge of the Defendant But Popham and Clench held strongly to the contrary and that this Bar is good in matter and as the case is cannot be otherwise and that the form also is good enough and yet the two Affirmatives cannot make a good Issue but in case of two Affirmatives a Traverse shall not be but where the Affiâ—matives do not agree in one As if the Defendant in Trespasse Intitles himself by the Feoffment of a stranger and the Plaintiff reply and maintain that the same stranger did enfeoff him this cannot make a good Issue without a Traverse of the Feoffment alledged to be made to the Defendant But in the same case if the Plaintiff saith that true it is that the stranger enfeoffed the Defend an t but this was to the use of the Plaintiff and his Heirs there no Traverse shall be on the Plaintiffs part because as to the matter of the Feoffment it agrees with the Defendant in which case it shall not take any Traverse but there the Traverse shall come on the Defendants part to maintain the Feoffment to his own use Absque hoc that the Feoffment was to the use of the Plaintiff for now that which the Defendant saith albeit it be in the Affirmative yet it is a Traverse to that which the Plaintiff hath alledged and therfore he needs not traverse the plea And so a diversity where the Affirmative is to traverse that which is alledged by the other party and where not for in one case the conclusion shall be with a Traverse and in the other not Then in this case when the Plaintiff alledged that the Defendant spake these words which prima facie shall be intended to be spoken in this sence as the Plaintiff hath alledged although no Innuendo had been in the case for if it shall not be so intended without the Innuendo the Innuendo will not help it yet when the Defendant hath declared the circumstance wherupon these words were spoken and then the speaking of them therupon now he hath confessed the very words themselves to be spoken but upon the circumstance discovered to be in another sence then prima facie they are to be taken and therfore he shall not take a Traverse for he acknowledgeth the very words but not the intendment which the very Law prima facie presumes upon the words and therfore shall not take a Traverse for this intendment of Law being answered by matter expresly in the plea shall never be traversed as in the case put of a Feoffment prima facie it shal be intended to be to the use of the Feoffee yet when the other party maintains that this Feoffment was to his use he shall not take a Traverse to that which the Law intends and presumes And if a man upon speech had with a Hunter saith That he hath murthered all the Hares within 7. miles of his house and another answer and say he is a Murtherer indeed wherupon the Hunter brings an Action upon the Case against him for saying that the Plaintiff was a murtherer the Action will well lye Yet when the other shall discover the communication wherupon the words were spoken this shall be a good Bar without a Traverse yet if it be true that there were no such communication between the parties as is mentioned in the Bar the Plaintiff then hath good cause of Action and therfâ—re he may well say De injuria sua propria absque tali causa and this being sound it shall be against the Defendant So upon speech of a Butcher who had killed a 1000. Oxen in a year and one hearing it will say that he is a notable Murtherer this upon the matter disclosed is not actionable And it shall be mischievous by a Traverse or by pleading generally not guilty to put such speciall matter in the mouth of Lay-people to give their Verdict upon being ignorant and therfore easie to be miscarried in theâ—r judgment and therfore it shall be the rather admitted by speciall pleading to be put to the judgment of the barred Judges then into the mouths of lay Gents And here when Fletcher speaking of the order to be taken by the Councell upon the Petition said that the Earl would obey their order to which the Defendant answered that he knew not what the Earl would do the said Fletcher said therupon that he was a Subject and what was the intent of Fletcher in saying so no other but that because he was a Subject therfore he ought to obey and if it be so to be understood as of necessity it ought or else they were not spoken by Fletcher to any purpose which cannot be intended then shall the words following being spoken therupon by the Defendant be taken to be spoken in answer to the matter of the Speeches spoken by the said Fletcher and this is that he was sorry and it was his grief that he must be so subject as to be bound therby to obey their Order as if a man saith to another that he was sorry that he was so subject that he must obey a Iudgment against him in the Queens Court this is no cause of Action for this tends but to his subjection to the Law or good order or the like which do not give cause of Action As if one saith of another that he is of the Temple who alwaies rebell against the Governours of the said house then saith another to him Will you then say and maintain that he is a Rebell yes sayes one of the other I will do so If an Action be brought for the last words the Action will lye but if the other discover the circumstances of the Speech in the Bar wherupon it was spoken the Action will not lye And this the Defendant may well do without traversing that which is alledged because he acknowledgeth it although in another sense then the Law Prima Facie imports upon the Declaration And if in Speech between two one of them saith of a stranger that he hath treacherously betrayed his Friend in revealing all his secrets and councell wherupon the other then saith that he hath done as a Traytor therin and the other saith to him again he is a Traytor and he answering to it saith true he is a Traytor Now if the stranger brings an Action of the Case against him for saying of these last words Prima Facie it imports good cause of Action without any Innuendo as that he intended therby that he was a Traytor to the Queen because the words in common intendment have such a sence yet upon the matter disclosed by way of Bar with the circumstances how they were spoken the Plaintiff shall be barred if he cannot maintain that they were spoken without such a cause which
alter the intendment that the Law hath otherwise of the words And Gawdy agreed also that in such cases the Defendant may plead the generall Issue and upon the matter also the Jury ought to find him not guilty But Popham and Clench sayd that this was a dangerous matter to be put in the mouthes of the Lay Gents as hath been said before and therfore to put it to the Iudgment of the Law by pleading And for the exception they ought to have shewn here where by whom and against whom the Petition was delivered to this they said that the exception was to no purpose for this was but a conveyance to the Speech used which Speech was the substance of the Bar and in this they put the case of the Lord Cromwell which was in this Court 22 Eliz. Rot. 752. In an Action upon the Statute of Scandalum Magnatum by him brought against Thomas Dye Clark for saying to the Lord Cromwel It is no news though you like not of me for you like of those that maintain Sedition against the Queens proceedings in which the Defendant said that he was Vicar of North Linham in the County of Norf. and that the Plaintff mentioned one Vincent Goodwyn Clark at such a time and one Iohn Trendle at such another time neither of them being licenced to preach in the said Church against the will of the said Defendant and shew how they severally preached there in their Sermons and shew certainly in what point Seditious Doctrine against the Laws of the Church as against the Crosse used in Baptisme and the wearing of the Surplice and that afterwards in speech therupon between the said Plaintiff and him the Plaintiff said to the Defendant That the Defendant was a false Knave and said in English words that he liked not of the Defendant wherupon the Defendant said the words comprised in the Declaration Innuendo That he liked of the said Goodwyn and Trendle who maintain Sedition Innuendo seditious Doctrine against the Queens proceedings Innuendo predict Leges Stat. Ecclâ—siae hujus regni Angl. c. And the Plaintiff was put to answer Scilicet de injuria sua propria absque tali causa c. And note in this case the Defendant would first have justified for the matter preached by one and it was not allowed by the Court but he was put to speak to both or otherwise it had not been good because his speeches were in the plurall number to wit That he liked of those which refers to more then to one And it was said in this case that the word Subject might have severall significations according to the circumstance wherupon it is spoken As Subiect generally without more is to be intended of the Queen but according to the circumstance it may be said Subject of England or Subject of Ireland or Subject to the Law or subject to any other authority or power set over him or subject to his Affections And if a man saith of another that he is a Subject and therfore he ought to serve the Queen in her Warrs and he answers that he is sorry for that and is grieved for it no Action wil lye for this because the grievance refers to service which is to be done and not to his Subjection as a Subject Dillon versus Fraine 9. IN Trespasse brought by William Dillon Esquire against John Fraine See this in Cook lib. 1. 120. bâ— the name of Chudleighs case for breaking of his Close at Tavestock in the County of Devon called Seden upon not guilty and a speciall Verdict the case appeared to be this to wit that Sir Richard Chudleigh Knight was seised in his Demesne as of Fee of the Mannor of Hescot with the Appurtenances in the County of Devon of which the said Close was parcel and so seised 26 April 3 4 Phil. Mar. by his Deed of Feoffment of the same date enfeoffed Sir Tho. Saintleger Knight and others and their Heirs of the said Mannor to the use of the said Sir Richard Chudleigh and his Heirs of the body of the said Elizabeth then the wife of Richard Bainfield Esquire lawfully begotten and for default of such Issue then to the use of the said Sir Richard Chudleigh and of his Heirs of the bodies of other wives of other persons lawfully begotten And for default of such Heirs then to the use of the performance of the Will of the said Sir Richard Chudleigh for 10. years after his decease and after the said Term finished then to the use of the said Sir John Saintleger and his Co-feoffees and their Heirs during the life of Christopher Chudleigh Son and Heir apparant of the said Sir Richard and after the death of the said Christopher then to the use of the first Issue Male of the body of the said Christopher and to the Heirs Males of the body of this first Issue Male and for default of such Issue to the second Issue Male of the body of the said Christopher to the Heirs Males of the body of this second Issue Male and so to the tenth Issue Male And for default of such Issue then to the use of Thomas Chudleigh another Son of the said Sir Richard and of the Heirs of his body lawfully begotten And for default of such Issue to the use of Oliver Chudleigh another Son of the said Sir Richard and of the Heirs of his body lawfully begotten And for default of such Issue to the use of Nicholas Chudleigh another Son of the said Sir Richard and of the Heirs of his body lawfully begotten and for default of such Issue to the right Heirs of the said Sir Richard Chudleigh for ever wherby they were seised accordingly after which the 17th of Novemb. 5 6. Phil. Mar. the said Sir Richard died without any Heir of the body of any of the wives before mentioned And after that the said Christopher took to wife one Christian Strecheley after which to wit the 14th day of August 1 Eliz. the said Sir John Saintleger and the other Feoffees by their Deed of the same date enfeoffed the said Christopher of the said Mannor to have and to hold to him and his Heirs for ever to the use of the said Christopher and his Heirs the said Oliver Chudleigh then being living after which to wit the 20th day of September 3 Eliz the said Christopher had Issue of his body lawfully begotten one Strechly Chudleigh his first Issue Male And after this to wit the 30. day of March 5 Eliz. the said Christopher had Issue of his body lawfully begotten one John Chudleigh his second Issue Male after which to wit the first day of July 6 Eliz. the said Christopher by his Deed indented of the same date and inrolled within six months according to the Statute bargained and sold the said Mannor to Sir John Chichester Knight and to his Heirs and in the interint also between the date of this Deed and in the inrolement therof to