the Enfant Hob. Rep. 281. for the Wife had her said Estate to her own use and then her Husband surviving her should have it and that without any admittance for that he is not in of any new Estate but in the Estate of his Wife as Assignee And it was said by them That if a Copyholder be for years and maketh his Executors and dieth that the Executors should have the Term Co. Case of Copyholders and that without any Admittance Weston contrary in that case as to the Executors XXIII Tindall and Cobbs Case 7 Eliz. In the Common Pleas. WAste was brought by Tindall Knight against Jeoffery Cobbe Esquire and the Plaintiff declared of a Demise of the moyety of the Mannor of Wolverton and of the moyety of a Wood called Wolverton-Wood The Defendant pleaded That Robert Winckfield before the Waste supposed was seised of and in tertia parte alterius Medietatis of the said Mannor and of and in tertia parte alterius Medietatis of the aforesaid Wood and held the same insimul pro indiviso with the Plaintiff and that the said Robert Winckfield by his Deed sold to the Defendant omnes omnimodas arbores subboscos suos crescent in praedict tertia parte alterius medietatis praedicti bosci ad libitum ipsius Galfridi succidend and so justified the cutting down of 300 Oaks in which the Waste is assigned with this that he will aver That the aforesaid 300 Oaks were the third part only in numero precio medietatis omnium arbor subboscorum at the said time when the Waste is supposed to be done and demanded Iudgment if Action And divers Exceptions were taken to the Count 1. He sheweth Vaugh. Rep. 175. that the Demise of the moyety of the Mannor was per nomen c. and doth not shew that the demise was by writing and if not then he cannot plead it by a per Nomen 2. The Waste is assigned in digging of Clay in 100 Acres of Lands parcel Medietatis Maner de Wolverton and hath not shewed in what Town the Land is For he hath shewed before the Demise of the moyety of the Mannor of Wolverton in Wolverton 3. He shews the Demise of the moyety of the Mannor of Wolverton and of other Lands and assigns the Waste in cutting down Oaks in quodam bosco vocat Wolverton Wood parcel praemissorum and that cannot be for this Wood cannot be parcel of the Mannor of Wolverton and of the other Lands also And for these Causes the Count by the whole Court was holden to be insufficient XXIV Stamfords Case 7 Eliz. Dyer In the Common Pleas HUgh Stamford seised in Fee had Issue A. his eldest Son and B. his younger Son A. had Issue George and Elizabeth by divers Women Hugh made a Feoffment in Fee to the use of himself for life and afterwards to the use of George in tail and afterwards to the use of A. in tail and afterwards to the use of the right Heirs of Hugh Hugh dieth A. dieth George levieth a Fine to the use of himself in tail the remainder over to B. in Fee and dyeth without Issue It was holden by Bendloes Carell Kelloway both the Bromleys and Kingsmill That Elizabeth is barred by this Fine by the Statute of 4 H. 7. 32 H. 8. XXV 7 Eliz. In the Common Pleas. THe Case was this Grandfather Father and Son Lands are given to the Grandfather for life the remainder to the Son in tail The Grandfather and Father joyn in a Feoffment with warranty The Feoffee makes a Lease for years and afterwards conveys the Land to the Grandfather for life the remainder to the Father in Fee The Grandfather and Father die The Son entreth and puts out the Lessee Weston was of Opinion That the Entry of the Son was lawful for it was the Feoffment of the Grandfather and the Confirmation of the Father and the Warranty of the Grandfather collateral to the Father and his Estate but when the Land is re-assured as above is said and afterwards the Son entreth after the death of the Grandfather and Father now he is remitted and the warranty gone by taking back the Estate and the Son is now seised of as high an Estate as his Ancestor was at the time that he departed with the Land by which the warranty is determined Dyer contrary Here had not been any discontinuance if the warranty had not been for the Father was never seised by force of the entail And I conceive that against a warranty collateral one cannot be remitted for it binds the Right as a Fine with Proclamation after the Statute of 4 H. 7. And I conceive that during the possession of the Grandfather the Warranty is but suspended and not determined and although that by the death of the Grandfather it be determined yet having respect to the Lessee it is in being for his Estate is derived out of the Estate which was warranted and which descends with the Warranty Bendloes One cannot make Title by a Collateral Warranty only c. XXVI Simonds Case 8 Eliz. In the Common Pleas. IN a Formedom the Tenant vouched Rose Simonds as Daughter and Heir of Henry Simonds Clerk and because she was within age he prayed that the Parol might demur Bendloes recited the Case to be this A Fine was levied of the Lands to Henry Simonds upon Condition c. who rendred back the Land to the Conusor by the same Fine and that the said Henry Simonds never had any possession or seisin but that which he had mean between the Conusans and the Rendee of which possession the Wife should not be endowed And therefore it is a good Counter-plea to say That the said Rose nor any of her Ancestors c. for that was not such a Seisin upon which Warranty might rise and so if a Feoffment in Fee had been made to the said Henry Simonds to the use of another And of that Opinion was Dyer Iustice for Henry Simonds had not any possession by force of which he might be vouched Welsh contrary For the Fine imports in it self that he hath a Fee and that he hath granted and rendred the same Fee and this Fine amounts to a Feoffment Dyer said to Bendloes The best way for you is to plead the Counter-plea generally and if he estop you by the Fine to demur upon it Afterwards Bendloes moved another matter viz. Henry Simonds was a Priest and therefore Rose is a Bastard and if so then she cannot be vouched as Heir But I would not trust the Bishop to Certifie the Bastardy if I should plead it generally and therefore I will plead the special matter and so it shall be tryed by the Country Dyer and Welsh So you may do if you please and yet if you plead general Bastardy it shall be tryed by the Country for Rose is not a party to the Writ and in such case Bastardy shall be tryed by the Country XXVII Mich. 8
the Land descends to her and her Sister as unto one moyety of the Land the Lease is determined but not as to the other moyety Whiddon Iustice Where a Devise is for the benefit of a stranger there the Heir shall take by the Devise and not by descent As if a Lease be made for years the remainder to the Heir there the Heir shall take the Land by the Devise Catline She hath it be Descent and not by the Devise But if he deviseth the Land to the Heir in tail with this That he shall pay a certain sum of Mony unto another there the Heir shall take by the Devise for the benefit which may accrue to the stranger and not by descent for otherwise the Will should not be performed But where the Estate of the Heir is altered by the Will nor any benefit doth accrue unto another after that the Lands come to the hands of the Heir in that case he shall have the Land by descent And so here in this case for as much as the Devise is That the Daughter shall enter they both being but one Heir to their Father shall have the Land by descent and the words of the Will That he shall enter into the moiety shall be void as if the Devise had been to the Heir for life there the same is void because the Fee-simple which descendeth to her doth drown the particular estate for life And therefore in the principal case here the Vncle shall have but the moyety of the moyety which is so devised and the other Sister shall have the other moyety of the Land and as to that moyety which is devised to the Wife for years the same shall enure according to the Common Law that the Vncle shall have the moyety of that and the other Sister the other moyety LIV. Mich. 15 Eliz. In the Common Pleas. THis Case was moved to the Court by Lovelace Serjeant A Man Covenants with another to make and execute an estate of such Lands as should descend to him from his Father and Grandfather by a certain day the same Lands to be of the clear yearly value of 40 Marks And the Question which he moved to the Iustices was That if the party had more Lands which came to him from his Grandfather and Father than did amount to the yearly value of 40 Marks If he was to make assurance of all the Lands or of so much thereof only as amounted to the value of 40 Marks And Manwood Iustice conceived That he should make assurance of Lands only which were of the value of 40 Marks per annum For the words such which do not go so largely as if he had said All my Lands which shall descend or to me be descended for then the yearly value were but a demonstration and all his Lands ought to be assured But here the Intent of the Indenture cannot be taken otherwise than to have but an Assurance of so much Land as if he had said Of such Lands and Tenements as were my Grandfathers and Fathers amounting to 40 Marks by the year for there by those words he shall have but 40 Marks by the year Lovelace It hath been taken That where the Queen made a Lease of all her Lands in such a Town amounting to the yearly value of 40 l. that that valuation is not a demonstration and shall not abridge the Grant precedent to have all in the Town which should be of the value of 40 l. but her Grant shall be taken and construed according to the words precedent Manwood The Common case of assurance upon a settlement of Marriage is That he shall stand seised of so much of his Land as shall be of the clear yearly value of 40 Marks If the marriage take effect The Question hath been If they to whom the assurance is made may enter into any part of the Land at their election and take that which is the best Land to the value of 40 Marks per annum and hold the same in severalty or if they shall be only Tenants in Common with the other And also it hath been a Question Whether they may choose one Acre in one place and another Acre in another place and so through the whole Land where they please because the Grant shall be taken strong against him that granteth But I conceive that it should be a hard case to make such Election of Acres But it was said by some Serjeant at the Bar That if a Man granteth to another to take 20 Trees in his Lands that the Grantee may cut down one Tree in one place and another in another place Manwood agreed that Case but of the other Case the Court doubted of it The principal case was adjourned LV. Vernon and Vernons Case Mich. 15 Eliz. In the Common Pleas. NOte That in the Case of Dower between Vernon and Vernon and the Argument of it the Plaintiff would have been Nonsuit Dyer Iustice said It should be an ill President if a Nonsuit should be after Demurrer And therefore he said That for his part he would not agree that any Nonsuit should be upon it but he said he would be advised and take better Consideration of it If the Nonsuit should be awarded or not And afterwards at another day Manwood and Dyer took a difference where the Nonsuit is the same Term and where in another Term and said It is like unto the Case where a Man would Wage his Law and is present ready to do it that there the Plaintiff cannot be Nonsuit because it is in the same Term but he shall be barred But in another Term afterwards he might be Nonsuit if the Defendant take day over to wage his Law until another Term and so they said it should be in this case LVI Sir Peter Philpots Case Mich. 15 Eliz. In the Common Pleas. THis Case was moved by Meade Serjeant to the Iustices of the Court of Common Pleas viz. That Sir Peter Philpot Knight seised in Fee of divers Mannors and Lands suffered a Recovery and made a Feoffment thereof unto divers persons To the use of himself for life the remainder to his right Heirs And after the Statute of 32 H. 8. of Wills He devised all his said Mannors and Land to his Wife for life and it was expressed in his Will That he could not devise all his Lands by reason of the Statute of 32 H. 8. that his Will was That his Wife should have so much which might be devised by the Laws of the Land And there was another Clause in the said Will That his Feoffees should stand seised of the same Mannors and Lands after the death of his Wife To the use of one Hurlock and others for years for the payment of his Debts and for the raising of Portions for the preferment of his Daughters in Marriage And further by his said Will he willed That if the Law would not bear it That Hurlock and the others should have the Interest Then he
Pawnage of the Park of H. grants all his Goods and Chattels moveables and immoveables within the said Park It was holden by Weston and Dyer Iustices That the Lease of the Pawnage passeth by these words And it was said by Dyer If a Man hath a Lease for years of a House and grants all his Goods and Chattels being in the same House that as well the Lease of the House as the Goods within it pass by such a Grant. XLVII Pasch 14 Eliz. In the Common Pleas. NOte It was said by Weston and Bendloes That a Retraxit cannot be before a Declaration which Leonard and Filmer Prothonotaries granted And Dyer said That it being before a Declaration it is but a Nonsuit and Wheatley and Filmer affirmed the same and therefore it was adjudged That such a Retraxit in the Court of Hustings before the Sheriff is no Plea in Bar. XLVIII Pasch 14 Eliz. In the Common Pleas. IN Debt brought against Christmas who shewed forth a Protection Quia Profecturus with the Lord Hunsdon to Barwick Dyer doubted If the Protection did lie But said It should be rather Moraturus then Profecturus For a Protection Quia Profecturus to Calleis was never good but super victitation Calicii Harper contrary For Barwick is out of the Realm And he said That he was once of Counsel Where a Bill was exhibited in Parliament to make Hexham part of England and he said That in the time of the Queen that now is One Carre struck a Man who thereof died at Barwick and in an Appeal thereof brought here by the Wife Carre was dismissed XLIX Cranmers Case Hill. 14 Eliz. Rott 938. In the Common Pleas. Dyer 309 310. 2 Len. 5. 1 Len. 196. 1 And. 19. More Rep. 100. Office of Executors 118. 119. TThomas Cranmer Archbishop of Canterbury having a Reversion in Fee of certain Lands upon a Lease for years granted the Reversion to the use of the Grantor himself for his life and after his decease to the use of the Executors and Assignees of the Grantor for 20 years next after the death of the Grantor and after to the use of Thomas his Son in tail and afterwards to the use of the Grantor in Fee The Grantor is attainted of Treason and the Queen gave the said Term of 20 years to the Wife of the Grantor who took to Husband Ed. White-Church who let the Land to A. Thomas the Son entred and leased the same Land to one Kirk who upon an Ouster brought Ejectione Firmae This Case was Argued by the Iustices Manwood the puisne Iustice conceived That the Plaintiff ought to be barred and that the Lessee of White-Church who claimed by the grant of the Queen the said Term of 20 years ought to hold the Land against the Son of the Grantor For the remainder limited to the Son is not yet begun in possession And he insisted much in his Argument upon this point That Vses limited upon any Conveyance are governed and directed according to the Rules of the Common Law As if a Feoffment in Fee be made unto the use of another for life the remainder to the use of the Lessee for life and the Heirs of his body c. now the party hath an estate tail executed in possession and that is according to the Rule of the Common Law. And he cited the Case of 40 E. 3. 20. Where Land was given by Fine to A.B. and C. and to the Heirs of the body of C. and for default of such Issue the remainder to the right Heirs of A. C. died without Issue B. dyed and afterwards A. died his Heir brought a Scire facias out of the said Fine And by Iudgment of the Court the Scire facias did not lie for the Fee was vested in the Father of the Demandant although that ex vi verbi the remainder was limited not to the Father but to his Heirs But where Vses are limited in other manner than according to the Rules of the Common Law there they shall not be ruled and governed by the Rules of the Common Law As if Lands be given to the use of one for life and to the use of such Lessees to whom the Tenant for life shall demise the same for years or life rendring Rent the remainder over to a stranger in tail and afterwards the Tenant for life makes a Lease for years or life and dieth such a Lease shall bind him in the remainder although that the Lessor had not but for life and be now dead for the Vse limited here to the Lessees which would be was limited contrary to the Rules of the Common Law. For by the Common Law such Leases made by Tenant for life are determined by his death And in this Case This Lease for 20 years after the death of the Grantor was limited according to the Rules of the Common Law and therefore it shall take effect accordingly as if it had passed in possession and not in use as if the Conveyance had been of the Land it self and that Land had been granted to the Grantor for 20 years after his death that Interest had been vested in him to sell forfeit or otherwise to dispose at his pleasure and shall not accrue to the Executors as a purchase 19 E. 2. Fitz. Covenant 25. Land was Leased to one for life and after his decease to his Executors and Assigns for 10 years the Lessee assigned the Term And by Herle it is a good Assignment For it is in the Election of the Lessee to Devise that Interest or to assign it in his life-time And see 39 E. 3. 25. A Lease was made to one for life and a year over 17 E. 3. 29. Lessee for life so as after his death the Land remain to his Executors for 8 years Lessee for life died He who had the Freehold of the Land was impleaded who rendred the Land and the Executors of the Lessee for life prayed to be received scil where as Executors do hold the Term which proves that they had the Term as Executors to the use of the Testator and so Assets therefore the same was before in the Lessee for life But by Dyer in his Argument That Case doth not prove it and certainâ—y it is not Assets For although the Executor have the same Term by purchase yet they have it as Executors for that is a good name of purchase which Harper concessit And Manwood argued further and he Cited 19 E. 3. Fitz. Covenant 24. Land was let for life and if the Lessee died within 12 years that his Executors should hold the same until the end of the 12 years The Lessee for life died and the Executors entred and the Executors of the Lessee for life brought Actions of Covenant which proved that the Executors had the Term as a Chatel vested in the Testator and not in their own Rights as Purchasors by the name of Executors See 22 Ass 37. Land demised to A. ad totam vitam suam
John the Father in three parts to be divided And afterwards the Father by his Will devised the Lands holden in Socage unto his said Wife for life with divers Remainders over It was the Opinion of the Court in this Case that the Devise was utterly void by the Statute CLV Brett and Peagrims Case Pasch 26 Eliz. IN an Action upon the Case the Plaintiff declared that whereas he himself and the Defendant submitted themselves to the Award of A.B. and C.D. and whereas the said Arbitrators upon the hearing of the Causes between them did intend and were resolved amongst other matters of their Award to award that two Obligations by which the Plaintiff was severally bounden to the Defendant for the payment of certain sums of Mony to the Defendant should be delivered by the Defendant to the Plaintiff to be cancelled The Defendant promised in Consideration that that Article of the delivery of the said two Obligations should be left out of the Award that he himself would gratis deliver them to the Plaintiff without any Coertion or direction of the Award and further declared that the said Article ad specialem instantiam ipsius Querentis was left out by the said Arbitrators out of their Award and notwithstanding that that the Defendant had not redelivered ut supra c. but had put the same in suit against the Plaintiff In this Case upon the matter ut supra c. it was adjudged for the Plaintiff CLVI Nich. Lee's Case Pasch 26. Eliz. In the Kings Bench. 1 Cro. 26. 1 Len. 285. 1 Inst 113. Dyer 177. 219. a. 2 Len. 220. NIch. Lee by his Will devised his Land to W. his second Son And if he do depart this World not having Issue then I Will my Sons-in-Law shall sell my Land. The Devisor at the time of the Devise having six Sons-in-Law died W. had Issue John and died John died without Issue one of the Sons-in-Law of the Devisor died the five surviving Sons-in-Law sold the Land. 1. It was clearly agreed by the whole Court that although the words of the Will be ut supra If W. my Son depart this World not having Issue c. And that W. hath Issue which dieth without Issue there although it cannot be said Literally that William did depart this World not having Issue yet the intent of the Devisor is not to be restrained to the Letter but Construction shall be made that whensoever W. dieth in Law upon the matter without Issue the same Land shall be subject to sale according to the Authority committed by the Devisor to his Sons-in-Law And now upon the matter W. is dead without Issue As in a Formedon in the Reverter or Remainder although the Donee in tail hath Issue yet if afterwards the Estate tail be spent the Writ shall suppose that the Donee died without Issue a fortiori in the case of a Devise such Construction shall be made As to the other point concerning the sale of the Land Wray demanded if the Sons-in-Law were named in the Will The Clerks answered they were not See 30 H. 8. Br. Devise 31 and 39 Ass 17. Fitz. title Executors 117. Such a sale is good in case of Executors See also 23 Eliz. Dyer 371. And see 4 and 5 Mar. Dyer Land devised in tail and if the Devisee shall die without Issue that then the Land shall be sold pro optimo valore by his Executors una cum assensu of A. if A. dieth before sale the power of the Executors is determined And afterwards it was clearly resolved by the whole Court that the sale by the manner aforesaid was good and Iudgment given accordingly CLVII Rag and Bowley's Case Trin. 26 Eliz. In the Kings Bench. ERror was brought upon a Fine and the Error was assigned in the Proclamations Whereupon issued a Certiorari to the Custos Brevium who certified the Proclamations by which Certificate it appeared that two of the said Proclamations were made in one day upon which the Defendant prayed another Scire facias to the Chirographer in whose Office it appeared that all the Proclamations were well and duly made It was the Opinion of Wray Chief Iustice in this Case that the Defendant ought to have his preyer for the Chirographer maketh the Proclamations and he is the principal Officer as to them And the Custos Brevium hath but the abstract of the Proclamations and we may in discretion amend them upon the matter appearing But the other Iustices seemed to be of a contrary Opinion for that the Proclamations being once certified by the Custos Brevium who is the principal Officer we ought not afterwards to resort to the Chirographer who is the inferior Officer And afterwards the Clerks of the Common Pleas were examined of the matter aforesaid by the Iustices of the Kings Bench and they answered according to that which was said by Wray Chief Iustice Wherefore it was awarded by the Court that a new Certiorari be directed to the Chirographer who Certified the Proclamations to be well and duly made And thereupon the Court awarded that the Proclamations in the Office of the Custos Brevium should be amended according to the Proclamations in the Custody and the Office of the Chirographer Note In the same Case before the Writ brought a stranger had brought a Writ of Error against the same Defendant upon the same Fine upon which the transcript of the Fine and Proclamations are removed in Banco and after the Plaintiff is Non-suit Now another who hath Cause may have a Writ of Error quod coram vobis residet CLVIII Taverner and Cromwell's Case Trin. 26 Eliz. In the Kings Bench. UPon an Evidence unto a Iury 3 Cro. 353. containing difficulty and matter in Law it was found viz. that the Bishop of Norwich 10 H. 8. was seised of the Mannor of Northelman in the right of his Bishoprick and at his Court holden within the same Mannor granted parcel of the Demesnes of the said Mannor to one Taverner and his Heirs where of the said Land in truth there was not any Demise by Copy before And so the said Land continued in Copy until 23 H. 8. at which time Taverner committed a forfeiture which being presented the Bishop seised the Land as forfeited and granted the same again by Copy to Taverner in Fee And so from thence it continued in Copy until 8 Eliz. which Interval between 23 H. 8. and 8 Eliz. amounted to 47 years It was the Opinion of the whole Court in this Case that the Continuance for 50 years is requisite to fasten a Customary Condition upon the Land against the Lord. It was also agreed by the Court that although the Original Commencement and that Customary Interest did commence 10 H. 8. ut supra from which time unto 8 Eliz. 60 years passed yet the seisure for a forfeiture which happened 23 H. 8. interrupted utterly the Continuance from the time which might by the Law have perfected the Customary Interest So
been Objected that J. cannot be said to die within the Term because by the descent of the Fee the Term is extinct or suspended and so not in esse at the time of the death of J. therefore nothing did accrue to G. because J. did not die within the Term but that is but a Conceit for the intent of Vincent was that the Heir should not meddle with the Land Devised as Heir until the 31 years be expired and words During or Within the Term extend unto the time of the Term and not unto the Estate And although that the Term as to J. be extinct yet the right or possession of G. shall stand and shall be expectant upon the death of J. before the expiration of the said 31 years As A. leaseth for life to B. and afterwards granteth the Reversion with Warranty to C. who releaseth to B. in Fee who is impleaded in a Praecipe although now B. hath a Feesimple yet during his life he shall not recover in value And in the principal Case This further Interest limited to G. cannot be extinct or prevented See Plow Com. Welden and Elkingtons Case Beaumont contrary And that the Term is extinct because he hath the said Term in his own right and not as Executor but as a Man trusted with payment of Debts and Legacies But the same Term which J. had G. cannot have for some of the years are expired and the words of the Will are He shall have such Term but here the Term is utterly extinct As where a Rent Common or Way c. descendeth upon the Ter-Tenant 2 H. 4. A Prior had an Annuity out of a Parsonage and afterwards he purchaseth the Advowson which is afterwards appropriated to his House now the Annuity is extinct and although the Prior afterwards presenteth to the Advowson yet it is-not revived Br. Extinguishment 54. A Man hath a Lease for years as Executor and purchaseth the Inheritance his Term is extinct yet it is Assets c. And it is said in Bracebridges Case Plow Com. 419. 14 Eliz. that Parson Patron and Ordinary Lease for years the Glebe Lands of the Parsonage the Parson dieth the Lessee for years becomes Parson and dieth his Executors shall not have the residue of the said Term for the Term is extinct 1 Inst 338. b. 2 Roll. 472. although he had the Term in his own right and the Freehold in the right of his Church and so in several Capacities And it was holden by some that if the Term for years comes to the Lessor as Executor who dieth the Term is revived Manwood Chief Baron asked this Case of those who Argued A Lease is made for 21 years Proviso That the Lessee shall suffer the Lessor to enjoy the same or to take the profits thereof during the life of the Lessor or so long as the Lessor shall live if the same were a good Proviso or not Pigot Conceived that the Devise to G. was a new Devise and not dependant upon the first Devise to J. nor any parcel of it but this second Devise to G. did take away the absolute Devise to J. before and qualified it so as it determined with his death The words Such Estate shall be intended an Estate to G. to be granted from the death of the Testator Land is Devised to A. and his Heirs and he if dieth without Heir that it shall remain to another the same is no good Devise But a Devise to one and his Heirs and if J.S. dieth living the Devisee B. shall have it the same is good for it is a new Devise and an Estate created de Novo and doth not depend as a Remainder upon the first Devise or upon the first Estate devised as the Case is 29 Ass 17. Br. Condition 111. and Devise 16. So here are several Estates limited one to J. and another to G. which Estate of G. cannot be extinct by unity of possession in J. These words If he die within the Term shall be construed for Effluxion of the time of 31 years and not for the Termination of the Term. Cooper Serjeant to the contrary J. took this Term as purchasor and not as Executor for that no Term was in the Testator See 14 Eliz. Dyer 309. Granmer's Case G. shall have such Term and Interest as before I have willed unto J. Manwood Such Term that is to say The Residue of the Term. Now at another day the Barons delivered their Opinions that the Plaintiff should recover and that was now G. to whom the second Term was devised And by Manwood in Construction of Wills all the words of the Will are to be compared together so as there by not any repugnancy between all the parts of the Will or between any of them so that all may stand And the Intent of the Testator was That his Son J. should have the Lands for 31 years if he so long lived and if he died within the Term That G. his Son should have such Term. And he held That the same was in J. an Estate by Limitation and he could not sell it nor could it be extinct by Act in Law or of the Law. It was a Lease determinable by his death and so shall be the Lease of G. determinable upon his own death and G. upon the death of J. within the Term shall have the residue of the number of the years limited by the former Devise scil so many in number as were not expired in the life of J. who was first Executor to that special purpose Gent Baron to the same intent here he hath the same Term as Executor and it is not like a-Term devised which the party hath as Legatee but in our Case he hath only authority in this Lease as Executor and the Land was tied to the time and the Authority and when the same determines in his person then the Land departs from him to G. who was a special Executor to that purpose as J. was before And G. had not the same Term which J. had but such a Term. Clerk Baron acc And he said that the Will was further that if G. died before his Debts paid and his Will performed and the Iury finding all the special matter concluded that if the Term limited to J. be extinct then they find for the Defendant And he held clearly that J. had this Term of 21 years as Executor and that by the discent of the Inheritance to J. the Term as to himself was gone But as to Creditors and to the Legatees it shall be said in esse and be Assets in his hands And because that the Term as to that purpose shall be said in esse he died within the Term within the intent of the said Will. And this word Term is Vox polysema Terminus status Terminus temporis Terminus loci And in our Case the word Term hath reference to time and not to estate for the Testator did respect the time in which his Will might be performed
the Plaintiff who said That the Extent by computation of time according to the value to which it was extended is not yet satisfied The Verdict hath found that the Extent continued until 22 Eliz. hut doth not say that it was then expired and ended And I conceive also that this Extent doth not evict the Interest of Sir Thomas Cotton or turn it into a possibility The extent is Quousque leventur denarii but yet a Limitation of time is in Law understood although by a Casualty such time may be abridged or extended Which see 15 H. 7. 16. by Fairfax Where a Man is bounden by Statute to pay 40 l. and the Conusee sueth Execution upon it and the Land extended is rated at 10 l. per annum now it shall be intended by a common intent that in 4 years the party may be satisfied and therefore after the 4 years the Conusor shall have a Scire facias so upon the matter it is a Lease for 4 years So 7 H. 7. 12. by Keble to the same purpose And 15 E. 4. 5. by Brian for the Law shall not intend a casualty without alledging of it for the same shall not be by imagination And therefore If the Conusor will have the Land within the Term he ought to alledge That the Conusee hath levied the duty by an extraordinary Casualty and shew it specially And so where the Conusor sueth a Scire facias and the Conusee will hold the Land over he ought expresly to surmise some extraordinary occasion wherefore he could not levy the duty upon the Land within the Term Which see by Brian 15 E. 4. 5. and 44 E. 3. The Conusee of a Statute after extent maketh a Lease for 3 years yet it may be that the duty shall be levied within one year but if it be so then a Scire facias shall issue forth against the Conusee and not against the Lessee for the Law intends that the whole estate of the Conusee is not granted but that he hath a Reversion in him but if he hath granted his whole estate then a Scire facias shall issue forth the Grantee So here although that this extent in our Case would continue by computation of time for some of the years of the Term granted to Sir Thomas Cotton yet it is intended that the extent did run out and was determined before the expiration of Sir Thomas Cotton's Term so as notwithstanding that Sir Thomas Cotton hath an Interest left in him which he may grant It will be Objected How can it be said an Estate for years when as he might hold over the years As to that such an Interest may be put off in divers Cases As 15 H. 7. A Man grants to another the third Avoidance of such a Church and dieth seised his Wife is endowed of the Church she shall have the third Avoidance and the Grantee shall have the 4th Avoidance and so per talem intervenientem occasionem the benefit shall be delayed and so here in our case And then the estate by Extent being prima facie certain so as it cannot by intendment surmount the Term of Sir Tho. Cotton as it appeareth upon the Extent the estate shall be taken to continue according to the extent of the years and then a certain Interest doth remain in Sir Thomas Cotton which he may grant over which is not a possibility but rather a Reversion So and to such purpose is the Case of 7 H. 5. 3 4. If the eldest Son entreth after the death of his Father and afterwards his Mother recovereth Dower that shall take away the possessio fratris but if the Son maketh a Lease for life and the Wife recovereth Dower against the Lessee there shall be possessio fratris for the Reversion doth remain in the Lessor notwithstanding the eviction of the estate for life And 7 H. 6. 2. there it is holden by Goddard and Strange That where the Term of the Wife was extended upon the Statute of the Husband who died the Wife shall have the residue of the Term and avoid the extent as to her Term which proves that all the Term is not drawn to the Conusee by the Extent but that an Interest doth remain in the Lessee notwithstanding that And see by Seton 29 Ass 64. If Lessee for life Leaseth to him in the Reversion for life yet he hath a Reversion in him And 31 Ass 6. A. is bound by Statute to B. and his Land extended by force of it C. recovers against B. in Debt and the Land extended by him upon the Statute 1 Roll. 887. is now extented by Elegit A. grants his Estate to the Conusee it is no surrender which proves that B. hath an Interest And so in our Case an Interest doth remain in Sir Thomas Cotton notwithstanding the Extent A. makes a Lease for years to begin at a day to come and before the day A. is disseised The Lessee notwithstanding this Disseisin may grant his Interest for he never was in possession and therefore it cannot be turned into a Right As to the second point If Robert Cotton may enter within the time of the Extent without a Scire facias and that rests upon this point If this Lease shall be subject to the Extent I conceive clearly that it shall not It hath been said That our Lease is not good But I conceive it without question that our Lease is good enough For it is made by the Husband and Wife and the Wife after the death of her Husband by Acceptance of the Rent might affirm the Lease But the Statute is the act of the Husband alone therefore the Conusee of the Fine shall not avoid the Lease for it is but voidable So the King grants Lands durante beneplacito and afterwards grants the Reversion over the Patentee shall not avoid the Estate But if this Lease had been made by the Husband only it had been void and then the Conusee of the Fine should avoid it as it was lately adjudged in Harvy and Thomas 's Case And I conceive That if Tenant in tail acknowledgeth a Statute and afterwards makes a Lease according to the Statute of 32 H. 8. and dieth the Lessee shall not hold the Land subject to the Statute for then the Rent should not be paid to the Issue in tail during the Statute which is against the Stat. of 32 H. 8. And see also 8 Eliz. Dyer 252. The Chaplain of a Donative Chappel Leased for 99 years which was confirmed by the Patron who was Tenant in tail of the Patronage which was appendant to a Mannor whereof he was seised in tail and afterwards he had Issue and died The Statute of Chauntries cometh after the death of the Incumbent the King shall avoid this Lease And in our Case after the Coverture the Conusee is in by the Wife and then he shall avoid the Statute extended upon it And if so then there needeth not any Scire facias as the
shall plead That he had not bought modo forma For if he hath bought of A.B. or J.S. the same is not material nor traversable Which Case Cook denyed to be Law. And he also conceived That the Information upon the Quo Warranto is not sufficient For by the same the Defendant is charged to hold a Court and it is not shewed what Court For it may be a Court of Pipowders Turn c. See 10 E. 4. 15 16. acc Shute Iustice The Quo Warranto contains two things in it self 1. A Claim And 2. An usurpation and here the Defendant hath answered but to the Vsurpation but saith nothing to the Claim And it hath been holden in this Court heretofore That he ought to answer to both And he said That it hath been holden in a Reading upon the Statute of Quo Warranto which is supposed to be the Reading of Iustice Frowick That a Quo Warranto doth not lie upon such Liberties which do not lie in Claim as Felons goods c. which lieth only in point of Charter CCXXXVI Venable's Case Mich. 29 Eliz. In the Kings Bench. THe Case was 1 Inst 351. a. Hughs Queries 13. A Lease was made to A. and B. for their lives the remainder to Tho. Venables in tail who 3 Eliz. was attainted of Felony 23 Eliz. there was a General Pardon Tho. Venables 24 Eliz. levied a Fine and suffered a Recovery to the use of Harris Serjeant Office is found Harris traversed the Office and thereupon was a Demurrer It was argued by Leake That Traverse did not lie in this Case 4 H. 7. 7 Where the King is entituled by double matter of Record the party shall not be admitted to his Traverse nor to his Monstrans de Droit but is put to his Petition Which see 3 E. 4. 23. in the Case of the Earl of Northumberland Where Tenant of the King is Attainted of Treason and the same is found by Office. See also 11 H. 4. in the Case of the Duke of Norfolk And the same is not helped by the Statute of 2 E. 6. Cap. 8. for the words are Untruly found by Office but here the Office is true By this Attainder Tho. Venables is utterly disabled to do any Act For by Bracton a Person attainted forisfacit Patriam Regnum Haereditatem suam 13 E. 4. One was attainted of Felony And before Office found the King granted over his Lands Also he is not helped by the General Pardon For before the General Pardon he had a special Pardon therefore the General Pardon nihil operatur as to him But by the Iustices the forfeiture doth remain until the General Pardon Harris to the contrary And he put the Case of Sir James Ormond 4 H. 7. 7. Where the King is entituled by matter of Record and the subject confesseth the title of the King and avoids it by as high matter as that is for the King Traverse in that case lieth and if the King be entituled by double matter of Record if the party avoids one of the said Records by another Record he shall be admitted to his Traverse And so here we have the Pardon which is a Record and that shall avoid the Record for the King And here the Pardon hath purged the forfeiture in respect of the Offence And he said That Tenant in tail being attainted of Felony shall not lose his Lands but the profits only for he hath his Interest by the Will of the Donor and it is a Confidence reposed in him and as Walsingham's Case is he cannot grant over his Estate And see in Wroth's Case Annuity granted pro Consilio impendendo cannot be granted over or forfeited for there is a Confidence See Empson's Case Dyer 2. and 29 Ass 60. If the Issue in tail be Outlawed of Felony in the life of his Father and gets his Pardon in the life of his Father after the death of his Father he may enter But by Thorp If the Issue in tail gets his Pardon after the death of his Father then the King shall have the profits of the Lands during the life of the Issue And the Case of Cardinal Pool was debated in the Parliament 27 Eliz. That he being Dean of Exeter was seised of Lands in the right of his Church and was attainted of Treason It was holden he should forfeit the profits of such Lands But admit That by this Attainder the Land be forfeited yet the party hath the Freehold until Office found See Nicholls Case Plow Com. And also the Case of the Dutchy in Plow Com. acc And here the Pardon hath dispensed with the forfeiture A Tenant of the King aliens in Mortmain before Office found the King pardons it it is good The Lord Poynings conveyed all his Lands to Sir Adrian Poynings who was an Alien and after made a Denizen and the King pardoned and released to him all his right in the said Lands without any words of grant and adjudged the same did bind the King And he said he had a good president 14 H. 7. Where a General Pardon before seisure into the hands of the King was allowed good contrary after a seisure without words of Grant. See Br. 29 H. 8. Br. Charter of Pardon 52. If a Man be attainted of Felony and the King pardons him all Felonies executiones eorundem and Outlawries c. and releases all forfeitures of Lands and Tenements and of Goods and Chattels the same will not serve but for life of Lands if no Office be found but it will not serve for the goods without words of restitution and grant for the King is entituled to them by the Outlawry without office But the King is not entituled to Land until Office be found See Ibid. 33 H. 8. 71. The Heir intrudes and before Office found the King pardons now the Heir is discharged as well of the Issues and profits as of the Intrusion it self But a Pardon given after the Office found is available for the Offence but not for the Issues and profits And he cited the Case of Cole in Plowden where a Pardon was granted mean between the stroak and the death See 35 H. 6. 1. 16 E. 4. 1. 8 Eliz. Dyer 249. Brereton's Case 11 Eliz. Dyer 284 285. Egerton Sollicitor contrary This Traverse is not good for he who traverseth hath not made title to himself as he ought upon which the Queen may take Issue for it is in the Election of the Queen to maintain her own title or to traverse the title of the party At the Common Law no Traverse lay but where Livery might be sued but that is helped by the Statute of 34 E. 3. but where the King is entituled by double matter of Record as in our Case he is no Traverse was allowed until 2 E. 6. Cap. 8. And in such Case two things are requisite 1. That the Office be untruly found 2. That the party who is to be admitted to his Traverse have just title or Interest
that the Queens Attorny said That it is true that Thomas Robinson was possessed but it is further said That Thomas granted it to Paramour and so the Interest of Thomas is confessed on both sides and therefore the Iury shall not be received to say the contrary But the Opinion of Manwood Chief Baron was That if the parties do admit a thing per nient dedire the Iury is not bound by it but where upon the pleading a special matter is confessed there the Iury shall be bound by it And afterwards the Issue was found against Robinson the Defendant CCLXXIII Trin. 30 Eliz. In the Kings Bench. IN an Action of Debt by A. against B. upon an Obligation the Defendant pleaded tender of the Mony according to the Condition upon which the parties were at Issue And after the Defendant pleaded That after the Darrein Continuance the Debt now in demand was Attached in the Defendants hands according to the Custom of London for the debt of C. to whom the Plaintiff was endebted It was the Opinion of the Court That the Plea was insufficient for it is altogether contrary to the first Plea. And also the Court held That in an Action for the debt depending here in this Court the debt cannot be attached and the Court would not suffer a Demurrer to be joyned upon it but over-ruled the Case without any Argument For it was said by Wray Chief Iustice That it was against the Iurisdiction of the Court and the Priviledge of it CCLXXIV Trin. 30 Eliz. In the Kings Bench. NOte It was holden by the Court That if a Copyholder in Fee dieth seised and the Lord admits a stranger to the Land who entreth that he is but a Tenant at Will and not a Disseisor to the Copyholder who hath the Land by descent because he cometh in by the assent of the Lord c. CCLXXV Trin. 30 Eliz. In the Kings Bench. AN Ejectione firmae was brought de uno Cubiculo and Exception was taken to it But the Exception was disallowed The Declaration was special viz Leas unius Cubiculi per nomen unius Cubiculi being in such a House in the middle story of the said House And the Declaration was holden good enough and the word Cubiculum is a more apt word than the word Camera And such was the Opinion of Wray Chief Iustice And it was said That Ejectione firmae brought de una rooma had been adjudged good in this Court. CCLXXVI Johnson and Bellamy's Case Rot. 824. Mich. 30 31 Eliz. In the Common Pleas. IN an Ejectione firmae It was holden by Special Verdict 1 Cro. 122. That W. Graunt was seised of certain Lands and by his Will devised the same to Joan his Wife for life And further he willed That when Rich. his Brother should come to the age of 25 years that he should have the Land to him and the Heirs of his body lawfully begotten W. Graunt died having Issue of his body who was his Heir Rich. before he attained the age of 25 years levied a Fine of the said Lands with proclamations in the life and during the seisin of Joan to A. sic ut partes finis nihil habuerunt And If this Fine should bar the Estate in tail was the Question And the Iustices cited the Case of the Lord Zouch which was adjudged Mich. 29 Eliz. Where the Case was Tenant in tail discontinued to E. and afterwards levied a Fine to B. That although that partes finis nihil habuerunt yet the said Fine did bind the Estate tail But the Serjeants at the Bar argued That there was a difference between the Case cited and the Case at Bar For in the Case cited the Fine was pleaded in Bar but here it was not pleaded but found by Special Verdict To which it was said by the Court That the same is not any difference For the Fine by the Statute is not any matter of Estoppel or Conclusion but by the Statute binds and extincts the entail and the right of it And Fines are as sufficient to bind the right of the entail when they are found by Special Verdict as when they are pleaded in Bar. And Periam Iustice said A Collateral Warranty found by Special Verdict is of as great force as pleaded in Bar. And afterwards Iudgment was given That the Estate tail by that Fine was utterly barred and extinct CCLXXVII Mich. 30 Eliz. In the Kings Bench. THe Case was A Man made a Lease for life rendring Rent at Michaelmas and further Leased the same to the Executors of the Lessee until Michaelmas after the death of the Lessee It was affirmed by Cook That in that Case it was adjudged That the word Until shall be construed to extend to the Term unto the end of the Feast of St. Michael and so the Rent then due payable by the Executors for without such Construction no Rent should be then due because the Term ended before Michaelmas CCLXXVIII Pasch 30 Eliz. In the Kings Bench. ONe was bounden to stand to the Award of two Arbitrators who awarded That the party should pay to a stranger or his Assigns 200 l. before such a day The stranger before the day died B. took Letters of Administration The Question was If the Obligee should pay the Mony to the Administrator or if the Obligation was discharged It was the Opinion of the whole Court That the Mony should be paid to the Administrator for he is an Assignee And by Gawdy If the word Assigns had been left out yet the payment ought to be made to the Administrator Which Cook granted CCLXXIX Pasch 30 Eliz. In the Common Pleas. THe Defendant in Debt being ready at the Bar to wage his Law was examined by the Court upon the points of the Declaration and the cause of the Debt upon which it appeared that the Plaintiff and Defendant were reciprocally endebted the one to the other And accompting together they were agreed That each of them should be quit of the other It was the Opinion of Periam and Anderson Iustices That upon that matter the Defendant could not safely wage his Law For it is but an agreement which cannot be executed but by Release or Acquittance CCLXXX Pasch 30 Eliz. In the Common Pleas. TEnant in tail Covenanted with his Son to stand seised to the use of himself for life and afterwards to the use of his Son in tail the remainder to the right Heirs of the Father The Father levied a Fine with proclamations and died It was moved by Fenner If any Estate passed to the Son by that Covenant for it is not any discontinuance and so nothing passed but during his life and all the Estates which are to begin after his death are void Anderson Iustice The Estate passeth until c. And he cited the Case of one Pitts where it was adjudged That if Tenant in tail of an Advowson in gross grants the same in Fee and a Collateral Ancestor releaseth with warranty and dieth
Demands or Grants Omnia terras tenementa sua But general words qualified with a restraint where the Limitations are effectual As if the King Grants Omnia terras tenementa sua in D. which he hath by the Attainder of J.S. or which were the possessions of such dissolved Monasteries such Grants are good And where the Case is That Queen Mary hath the Lands in possession of the annual value of 19 l. and other Land there in Reversion of the annual value of 6 l. and then she Grants Omnia terras tenementa nostra rendring 19 l. per annum I conceive That upon these words the Land in possession only passeth because that the said general words may be aptly served and satisfied with the Lands in possession if no other Lands pass And I agree That this word Nostra extends as well to the Lands in Reversion as to Lands in possession but most properly to Lands in possession for Land in Reversion cannot dici simpliciter Nostra but quodam modo tanquam terra revertens and not to take the natural profits of it for the Termor hath such properly that he shall have an Action of Trespass Quare clausum fregit But the intent and meaning of the Queen is to be regarded and that is the surest way to have right intelligence of the Grants of the King For here the Queen hath reserved but 19 l. Rent which is the proper and ancient Rent of the Lands in possession and if Lands in Reversion should also pass the Rent of which was 6 l. per annum then upon the whole Grant but 19 l. being reserved the Queen should lose 6 l. per annum of her ancient Rent which should be contrary to the intent and meaning of the Queen and the intent of the Grantor even in the Case of a Subject shall direct the construction of Grants As 9 H. 6. Br. Grants 5 by Babington A Man grants Common in his whole Lands he shall not have Common in his Orchards Gardens or Meadows for such was the meaning of the Grantor a fortiori in the Case of the King. It hath been argued That the former Lease ought not to be recited because that after the first Lease made by King Henry the 8th the Inheritance hath been in a Subject that is the Bishop of Bath and Wells but the same is not so For if the King makes a Lease for years and afterwards Grants the Reversion upon Condition which after is broken and so found by Office by which the Reversion is reduced to the King If now the King will make a new Lease he ought to recite the former Estate notwithstanding the mean grant of the Reversion or else such second Lease is void Another matter hath been Objected wherefore the former Lease ought not to be recited and that is because it is determined by surrender in Law before that the new Lease takes effect Sir the same is not so for the former Lease is in being as the Case betwixt Fulmerston and Steward 1 Mar. Plow Com. 106. upon the Statute of Monasteries 31 H. 8. See the words of the Statute whereof and wherein any Estate or Interest for years at the time of the making of any such Lease had his being or continuance And an Abbot made such a Lease to one who had a term for years of a former Grant although here be a Surrender yet this Case is within the said Statute and the said former Lease shall be said to have his being at the time of the making of the later Lease and the Surrender shall not be said so to preceed the making of the Lease but that the former Lease shall be said in Esse at the time of the making of the later Lease And in our Case it shall not be taken for any Surrender for then the Queen shall lose 6 l. of her ancient Rent and Revenue and always when the Title of the King and of the Subject concur the Title of the King shall be preferred as 43 E. 3. The King Lord Mesne and Tenant The Tenant pays his Rent at the day to the Mesne before Noon and then the same day before Night the Mesne dieth his Heir within age the King shall be paid the Rent again for here the Title of the King and the Subject concur together at one time and in that the King shall be preferred and so he prayed Iudgment for the Defendant And afterwards at another day the Iustices declared their Opinions and by Wray Chief Iustice We all agree That the first Lease ought to be recited and the reason which hath been urged against that point hath reduced us to be of that Opinion scil That the second Lease was made to the first Patentee and the King doth not make the recital but the party ought to inform the King of all former Estates of the said Lands and that he might well do for he is well knowing of them and although that the Reversion after the first Lease made hath been conveyed to a Subject the same is not material here forasmuch as the second Estate is made to him who had the first Estate and might know whether the first Estate were determined or not Also by the re-purchase the King is in Statu quo prius Gawdy Iustice although that the former Term be drowned by the taking of the second Lease yet it was in being at the time of the taking of it as it is holden by Bromley in the Case of Fulmerston and Steward It is determined by the second Lease and yet it was in being at the time of the making of it Fenner Iustice to the same intent Clench Iustice If the Grant of the Queen shall enure to two intents then the Queen should lose 6 l. per annum of her ancient Revenue It was agreed by all the Iustices That the general words in as much as they are restrained to a certainty would pass the thing si caetera essent paria contrary if they had remained in the generalty and afterwards Iudgment was given Quod querens nihil Capiat per Billam CCCXXXVIII Trin. 32 Eliz. In the Common Pleas. 4 Len. 233. A Man 30 Eliz. made a Feoffment in Fee to the use of himself for life and afterwards to the use of his Son and his Heirs The Father and the Feoffees before issue for Mony by Deed granted and enfeoffed J.S. and his Heirs who hath not notice of the first use The Tenant for life hath issue and dieth the issue entreth Glanvil the use limited to the first Son is destroyed for without regress of the Feoffees it cannot rise and it is gone by their Livery See the Case in Plowden 349. and also he vouched the Case of the Earl of Kent where by the Release of the surviving Feoffee 2 Roll. 797. Plow 347. a Sleeping-Vse was destroyed and could not after be revived Harris the use may rise without entries of the Feoffees and he put a difference between an
lies immediately upon a Recognizance in Chancery B. 84 to 89 220. If Debt lies upon it before or after Judgment upon the Scire facias B. 84 to 88 220. Debt brought upon a Recognizance but non constat where it was acknowledged C. 58. Record Of an Assise brought into the Common Bench by Error how to be remanded to the Judges of Assise for Error lies not in C. B. A. 55. Pleading of a Record in the same Court A. 63 65. Where and for whom Averment lieth against a Record A. 183 184. Removed by a vicious Writ of Error or before Judgment given the Record is still in the first Court B. 1 2. A Recordatur made per Car. of a Record mistaken B. 120. Recovery The form thereof where the Vouchee comes in by Attorny A. 86. Against an Infant per Gardianum A. 211. A Recovery by one Joynt-Tenant binds only his own moiety A. 270. The execution thereof necessary in some cases B. 48. By Estoppel B. 57. Recoveror is seised to the use of him who suffers it until other Uses are limited B. 63 64 66. See Stat. 21 H. 8. who may falsify a Recovery For what reasons Recoveries do dock remainders after an Estate tall B. 66. Recovery to the intent that the Recoverors shall make Estates if such Estates be not made in convenient time in whom the Freehold is B. 216 217 218. What issue is bound thereby per Stat. 32 H. 8. B. 224. Recouper If the Lessor covenant to repair the House and do not Lessee may do it and recouper out of his Rent A. 237. Recusant If Copyhold Lands were liable to seisure for Recusancy before the Stat. 35 Eliz. 2. A. 98 99. Within what time Action upon the Stat. 23 El. 1. must be brought A. 239. The Indictment needs not name the offender of a Parish but a Vill B. 167. Redisseisin Whether the Plaintiff may have it after Entry the Judgment therein A. 69. Relation Of a Participle of the present Tense without the word adtunc A. 61 172. Of an Attornment A. 265 266. B. 222. Of words in an Indictment B. 5. Of a Deed enrolled to vest Lands in the King B. 206 207. Of agreement to a Disseisin Feoffment c. B. 223. Release Where a Covenant in the same Deed shall release other part of the same Deed A. 117. C. 113. Of a chose en action nihil operatur A. 167. C. 256. If an Heir release to the Disseisor and after his Ancestor dies it does not bind the Heir B. 47 56 57. A promise may be released by Parol B. 76. See where a release to a Stranger may discharge a Bond C. 45. Release of Covenants before any broken discharges the Bond for performance C. 69. To what Tenant in possession it is available C. 152 153. One Grantee of a prochein avoidance cannot release to his Companion A. 167. C. 256. Relief The Heir of one Coparcener shall pay none because it is an intire thing C. 13. Remainder and Reversion In Fee after a Lease for life where not discontinued by a Fine levied by Tenant for life A. 40. Cannot vest in the right Heirs of one in the Feoffors life unless it begin first in the Feoffor A. 101 102. Where an Estate shall vest as a remainder where as a reversion A. 182. B. 33 34. A Reversion after an Estate for life passeth by Devise of all Lands and Tenements A. 180 181. When a Remainder limited upon an Estate which is void as a Gift to a Monk for life remainder over shall take effect A. 195 196 197. Lease for nine years determinable upon death of the Lessee and if he die within the Term the remainder of the Term to his Wife a void remainder A. 218. The difference between a remainder limited upon a contingency which may never happen and one that must and will happen A. 244. B. 82 83. Devise to J.S. haered to Uses in tail after the Estate tail spent The Devisor shall have the fee A. 254. If one of two Disseisees release to one of two Disseisors and the Tenant who released not do enter the Reversion is revested pro toto A. 264. If a remainder may be limited upon a Condition A. 283. Feoffment to J.S. primogenito filio suo If the Son be born after the Feoffment he shall take by remainder B 15. If the remainder of a Term for years be good B. 69. C. 110 111 197 199. Remainder executed by moieties upon a Gift to a Feme for life remainder to their Heirs C. 4. Grantee of a Reversion shall recover Damages only for breach of Covenant made since the Grant C. 51. What acts as Extents Grants c. do take a Reversion forth of him that had it C. 156. Remitter Where it shall be A. 6 7 37. C. 93 94. Tenant in tail creates a new intail upon condition which his issue breaks yet he is remitted after his Fathers death A. 91. Land given to Husband and Wife in tail before Marriage and the Baron aliens and takes back an Estate to him and his Wife for life both are remitted A. 115. C. 93 94. The Father enfeoffs the Heir who never agrees and dies the Heir is remitted B. 73. Father enfeoffs his younger Son who dies his Wife priviment enseint of a Son the elder Son enters he is remitted Quaere C. 2. If one may be remitted against a Warranty C. 10. Waived by the Wife who was Tenant in tail with her Husband her payment of Rent which was reserved upon a Devise C. 272. Rent What is a Rent what a sum in gross A. 137 138 269 333 334. C. 103. Rent reserved by a Lease for years becomes seck if it be granted over A. 315. Divers ways of suspending Rents and how they are revived 334. To what remainder or reversion it shall be incident B. 33 34. If a Rent may be divided to equal a devise of Soccage and Capite Lands B. 42 43. Shall follow the Reversion although reserved to Executors B. 214. Contrary to a sum reserved to Executors upon a Mortgage of Land C. 103. Rent payable at two Feasts is to be paid by equal portions C. 235. By destroying a Reversion a Rent which followed it is extinguished C. 261. Repleader None after Demurrer A. 79. After an unapt issue A. 90. Replevin and Avowry Avowry for Rent reserved upon a Feoffment in fee and for sult of Court A. 13. Bar by non Cepit and what is good evidence therein A. 42. By property in a Stranger Ibid. Where the Plaintiff or Avowant may vary from the number of the Cattle A. 43. Plaintiff cannot discontinue without leave of the Court A. 105. Avowry for Damage Feasant in Customary Lands leased to the Avowant A. 288. Avowry by the Stat. 21 H. 8. cap. 19. A. 301. Avowry for a Leet Fee B. 74. Bar to an Avowry made by a Bailiff that he took the Cattle de injuria c. and traverse that he took them as Baily B. 215.
he might be disseised But because the words of the Indictment were Expulit disseisivit which could not be true if the party expelled and disseised had not Freehold the Exception was disallowed Another Exception was taken to the Indictment For these words In unum tenementum intravit and this word Tenementum is too general and an uncertain word and therefore as to that the party was discharged But the Indictment was further In unum Tenementum decem acras terrae eidem pertinent And therefore as to the 10 Acres the party was enforced to Answer CL. Pasch 26 Eliz. In the Common Pleas. A. Granted to B. a Rent-charge out of his Lands to begin when J.S. died without Issue of his body J.S. died having Issue which Issue died without Issue Dyer said The Grant shall not take effect For J.S. at the time of his death had Issue and therefore then the Grant shall not begin and if not then then not at all And by Manwood If the words had been To begin when J.S. is dead without Issue of his body then such a Grant should take effect when the Issue of J.S. dieth without Issue c. Dyer If the Donee in tail hath Issue and dieth without Issue The Formedon in Reverter shall suppose that the Donee himself died without Issue For there is an Interest and there is a difference betwixt an Interest and a Limitation For if I give Lands to A. and B. for the Term of their lives if any of them dieth the Survivor shall have the whole But if I give Lands to A. for the life of B. and C. now if B. or C. die all the Estate is determined because but a Limitation and B. and C. had not any Interest See Cook 5 Part Bradnell's Case CLI Pasch 26 Eliz. In the Common Pleas. A. Enfeoffed B. upon Condition That if he pay 10. l. to the Feoffee his Executors or Assigns 4 Len. 232. 1 Len. 285 286. Hill. 12. Car. 2 B.R. Goodyer and Clarks Case within 3 yeares next ensuing that then it should be lawful for him and his Heirs to re-enter The Feoffee hath Issue two Sons whom he makes his Executors and dieth before the day of payment The Ordinary commits â—etters of Administration to J.S. during the minority of the Executors Manwood conceived That it is a most sure way for A. to pay the Monies to the Executors for they remain Executors notwithstanding the Administration committed to another For the Administrator in such case is but as Bailiff or Receivor to the Executors and shall be accomptable to them Which Harper and Dyer Concesserunt And Manwood said If in this Case the Monies be paid to one of the Executors it is sufficient and the same well paid but that Conditional Feoffments are as a Sum in gross and not in nature of a Debt Which the rest of the Iustices granted CLII. Pasch 26 Eliz. In the Common Pleas. A. Seised of a Mannor seased the same for years rendring Rent with Clause of re-entry and afterwards levied a Fine Sur Conusans de Droit to the use of himself and his Heirs The Rent being demanded is behind Dyer A. cannot re-enter for although in right the Rent passeth without Attornment yet he is without remedy for it is without Attornment and it would be hard without Attornment to re-enter c. It was moved further If here the Conusor be Assignee within the Statute of 32 H. 8. Manwood The Reversion of a Termor is granted by Fine there wants privity for an Action of Debt Waste and Re-entry But if the Conusee dieth without Heir although that in right it was in the Conusee yet the Lord by Escheat shall make Avowry and yet the Conusee by whom he claimeth could not And in the Case at Bar the Conusee himself could not but the Conusor being Cestuy que use who is in by the Act of Law 1 Inst 309. shall avow and shall re-enter without Attornment For the Conusor is in by the Statute of 27 H. 8. Harper The Heir of the Conusee shall avow and re-enter before Attornment Dyer 13 H. 4. The Father leaseth for years rendring Rent with Clause of re-entry the Father demands the Rent which is not paid the Father dieth the Son cannot re-enter For the Rent doth not belong unto him And therefore in the Case at Bar the Conusee cannot avow for the Rent before Attornment therefore not re-enter CLIII Trin. 26 Eliz. In the Common Pleas. IT is Enacted by the Statute of 5 Eliz. Cap. 8. That no person shall cut down any Oak Trees but between the first day of April and the last day of June but Timber imployed and bestowed in or about Buildings or Reparations of Houses c. And upon an Information upon that Statute the Defendant pleaded That he cut down the said Oak Trees and thereof made Laths to be bestowed in building and that he had sold them to J.S. who had imployed part of them in building and is imploying the residue in the same manner Windham The intent of the Defendant in cutting down the Oaks was not to have them imployed in building but to sell them Although it is not necessary for the satisfaction of that Statute that the Oaks presently after the cutting be imployed about building For if the Lessee of a Messuage who is to have House-bote seeing that his Messuage will want reparation cutteth down a Tree for such intent although there be not such urgent occasion at present that it ought to be presently repaired the same shall not be said Trespass for it is good Husbandry to have such Timber to be seasonable which cannot be without some reasonable time between the cutting down and the imployment Periam If at the time of the cutting the Vendor or Vendee had an intent to employ them about building it is good enough And it is a strong Case here because the Defendant imploys the Timber himself in Laths which is not of any use but for building and cannot be made but of Timber CLIV. Eve and Finch's Case Trin. 26 Eliz. In the Kings Bench. PEter Eve and John Finch brought an Action of Trespass against Nathaniel Tracy and Margaret his Wife and upon the pleading the Case was that John Finch Father of J.F. the Plaintiff seised of the Mannor of St. Katherines held the same of the Queen by Knight service in Chief and was also seised of the Land where the Trespass was done being holden in Socage and so seised 6 Junij 20 Eliz. for the preferment of the said Margaret then his Wife enfeoffed of the said Mannor A. and B. unto the use of himself and the said Margaret and their Heirs And that the said John the Father had not any other Land but that before mentioned and that the said Mannor at the time of the said Feoffment and at the death of the said John the Father attingebat ad duas partes of all the Lands and Tenements of the said