to sue to the King by Petition if he will have his Land yet he conceived that before the Statute of 18 H. 6. the King might grant the Land before Office as it appeareth by Thirning 13 H. 4. 278. who was before the said Statute So if the King's Tenant makes a Lease for years the Remainder over to another in Fee who dieth without Heir the Remainder is in the King without Office because a common person in such case cannot enter but a claim is sufficient and therefore it shall be in the King without Office. As to the pardon he said That it doth not extend to this Estate for this is a Freehold ergo not within the pardon As if the King's Tenant be attainted of Felony and the King pardons him all offences and all things which he may pardon these words shall not go nor extend to Freeholds but onely unto personal matters and such punishments and peins which do concern Chattels But it may be objected That by this pardon Title of Quare Impedit and Re-entries for Conditions broken are excepted and therefore if they had not been excepted they had been remitted by the pardon and therefore this pardon shall extend to Inheritances and Freeholds As to that I say That such Exceptions were not in use in the time of H. 4. and yet Inheritances and Freeholds were not taken to be within such pardons and such Exceptions did begin 5 Eliz And he said he had been of Council in such Cases where it hath been taken that such pardons did not extend to Freeholds As an Abbat was disseised and afterwards during the Disseisin the Abby is dissolved the King makes such pardon the same doth not transfer the Right of the King and in that Pardon are divers Exceptions of Goods and Chattels in many cases and therefore it cannot be intended that the pardon doth extend to Freeholds And see the said Act of pardon The Queen grants all Goods Chattels Debts Fines Issues Profits Amercements Forfeitures Sums of Moneys which word Forfeiture shall be intended of a personal Forfeiture non aliter for it is coupled with things of such nature And as to the Traverse he said It did not lie in this Case for the Office is not untrue but true in substance although void in circumstance And also the King here is entituled by double matter of Record scil the Attainder and the Office and he said that the Statutes of 34 and 36 E. 3. which gave Traverse are to be intended of Offices found virtute Officii and not virtute Brevis for then Efcheators were very troublesome And the Statute of 2 E. 6. doth not give Traverse but where the Office is untruly found as if Tenant of the King be disseised and the Disseisor be attainted the Queen seiseth the Land Now the Disseisee hath not remedy by Traverse upon the Statute of 2 E. 6. but is put to his Monstrans de Droit for the Office is true But if I be Tenant of the King and seised of Land accordingly and it was found that J. S. was seised of my Land and attainted c. whereas in truth he had not any thing in my Land there Traverse lieth for the Office is false and so in our Case for the Traverse it is at the Common Law and it was true that Venables was seised Coke to the contrary and he said That by the Attainder the Queen hath gained but a Chattel and that notwithstanding this Forfeiture if Venables had been in possession a Praecipe should be brought against him And where it hath been said by Mr. Attorney That Writs set down in the Register are the best Expositours of our Law the same is not so for the Register saith That Waste lieth notwithstanding a Mesn Remainder which is not now Law but it hath been clearly ruled to the contrary and see accordingly 50 E. 3. the Register therefore and the Writs are subject to the Iudgment of our Law and the Writ of Diem clausit extremum is not to the contrary for I confess that in such case the Land shall be seised into the hands of the King but the King shall not have but a Chattel therein It hath been argued It may be granted Roll. Tit. Grant. 4 Len. 112. ac Godb. 351. a. therefore it may be forfeited Nego Consequentiam for a man seised in the right of his Wife may grant but not forfeit Gardian in Socage may grant but not forfeit the Husband may grant a term for years which he hath in the right of his Wife but he cannot forfeit it A woman Inheretrix taketh a Husband who afterwards is attainted of Felony the King pardons him they have issue the Husband shall be Tenant by the curtesie which proveth that the King hath not the Freehold by that Attainder Before the Statute of Westm 2. Tenant in tail post prolem suscitatam might forfeit his Lands but now the Statute hath so incorporated the Estate tail to the Tenant in tail that it cannot be devested even a Fine levied by him ipso jure nullus although as to the possession it be a Discontinuance and that is the reason wherefore Tenant in tail shall not be seised to another's use See Stamford 190. The Husband seised in the right of his Wife is attainted of Felony the King shall have the profits of the Lands of the Wife during the life of the Husband c. So if Tenant in tail be attainted of Felony and that is but a Chattel in the Lands of the Wife and also in the Lands of the Tenant in tail and if the possessions of a Bishop be seised into the Queen's hands for a Contempt in such case the Queen hath the possession and not the profits onely the same Law of the Lands of Tenant in tail or for life being attainted of Felony so of seisure for Alienation without license or of the possessions of Priors Aliens See Brook Reseiser 10. So where the Seisure is for Ideocy And he said That in the principal Case nothing is in the King until Office and as to the Case of 13 H. 4. 6. he confessed the same for at that time many and amongst them Lawyers and Iustices were attainted by Parliament and so was Sir John Salisbury whose Case it was and their Lands by Act of Parliament given expresly to the King and therefore I grant that their Lands were in the King before Office. Tenant in Fee of a common Lord is attainted of Felony his Lands remain in him during his life until the Entry of the Lord and where the King is Lord untill Office be found but in the Case of a common person after the death of the person attainted they are in the Lord before Entry and in the Case of the King before Office for the mischief of abeyances And see the Lord Lovel's Case 17 and 18 Eliz. 485 486. Plow where it is holden That upon Attainder of Treason by Act of Parliament the Lands were
made the Reservation and he relied much upon the last Reason urged by Harper upon the Statute of 27 H. 8. that this was limited to the Executors Co. 13. Rep. and not to him who limited it and therefore the possession shall be executed to the Executors to whom the use was limited and this term shall not be Assets in the hands of the Executors And he said That he had seen a Record 2 H. 8. setting forth That A. having Feoffees to his use devised that his Feoffees should sell his Lands who did accordingly now the money coming by the sale shall be Assets c. but it is not so limited in our case therefore it shall not be Assets A Lease is made to A. for life the Remainder to the right Heirs of B. B. purchaseth the Estate of A. the Estate in Remainder is not executed for it is not conveyed by the Grant of the first Grantor but by the Act of another person after the Grant. A Lease for life to A. the Remainder to a Feme sole for years they entermarry Waste is committed the Lessor brings an Action of Waste he shall recover as well the Estate for years as for life A. Leaseth unto B. for life the Remainder unto the Executors of A. for years the Remainder over in Fee to a stranger the Remainder for years is good for the Lessor cannot limit such an Estate to himself and the Executors shall take the Estate as Purchasors and the term shall be in abeyance untill the death of A. There was a case before the Lord Brook in the time of Queen Mary viz. A Lease was made for life Proviso that if the Lessee dieth within the term of sixty years that the Executors shall have the Lands as in the Right and Title of the Lessee pro termino totidem annorum which do amount to the number of sixty years to be accounted from the said Indenture The Opinion of the Iustices of the Common Pleas upon the Case was That the term was not in the Lessee for life So this future term in the principal Case was not in Tho. Cranmer But see that Case cited by Dyer reported by himself 4 Ma. 150. and there the opinion of the Court was That the same was not a Lease but a Covenant And afterwards in the principal Case Iudgment was given for the Plaintiff That the future term was not forfeited by the Attainder of Cranmer VIII 7 Eliz. In the Common Pleas. THE Case was Dyer 317. b. 318. a. J. S. is seised of a Close adjoyning to the Close of J. D. and J. S. ought to enclose against J. D. J. S. leaseth his Close to another for years rendring Rent J. D. puts in his cattle into his own Close who for want of enclosure escape into the Close of J. S. and before that they be levant and couchant Distress for Rent J. S. distrains them for his Rent It was said by Manwood Iustice that the distress was not well taken Doctor Student 150. 1 Inst 476. Brown 1 part 170. Roll Tit. Distress 1 part in toto for there is a difference when the cattel come upon the Lands of another in the default of the owner of the cattel as by escape or stray and where in the default of another For in the first case the Lord may distrain them before they be levant and couchant but in the latter case not Also a Rent reserved upon a Lease for years is a new Rent and not like unto an ancient Rent due upon an ancient Tenure betwixt the Lord and the Tenant For for a Rent reserved upon a Lease for years Roll 1 part 672. acc Hob. 265. Brown part 2 170. or for a Rent charge a man cannot distrain the cattel before they be levant and couchant upon the Lands although they come upon the Lands by escape estray c. Dyer The Lord cannot distrain the cattel which escape into the Land of his Tenant for want of enclosure of his Tenant before they be levant and couchant and yet the seignory is favoured for the antiquity of it But here is new Rent not in respect of any seignory but of reservation upon a Lease for years and therefore no distress before the cattel be levant and couchant upon the Lands Quod Harper Mounson concesserunt and Iudgment was given accordingly IX 17 Eliz. In the Common Pleas. Writ of Entry in the Per. THE Case was In a Writ of Entry in the Per against A. and B. A. pleaded several tenancy It was holden by Dyer chief Iustice that it is not any plea. Harper Iustice In Assise it is no plea for here the Land is not in demand Several Tenancy where no good Plea. but here it is a good plea and the Demandant ought to maintain his Writ Manwood In no action founded upon disseisin is this good For although the Demandant by policy will bring his Writ against the Tenant of the Land and another who he will name in the Writ upon trust and confidence and that he will not agree with the Tenant of the Lord in Dilatories for the Tenant of the Lands shall not be received to plead Dilatories Yet in that case several Tenancy is no plea for the Tenant but in a Formedon or other such like action which is not grounded upon disseisin if the Writ be brought in such manner as above the Tenant by policy that he may have the view and other reasonable delay may plead several Tenancy and so enforce the Demandant to maintain his Writ but contrary in the Case at Bar and so it was adjudged per Curiam X. Creswell and Cokes Case 19 Eliz. In the Common Pleas. Dyer 351. CReswell brought Debt against Coke and demanded 200 Marks upon the Statute of 13 Eliz. of fraudulent Deeds Gifts c. upon the second clause of the Statute Debt viz. That all parties or privies to such fraudulent Deed willingly putting in ure avowing c. as true simple Custome and given bona fide shall forfeit c. And shewed that one A. held of the Plaintiff 12 acres of customary Lands and died seised And that by the custome of the Manor Heriot the Lord was to have for a Heriot the best beast whereof his Tenant died possessed and farther shewed that the said A. in his life time and a little before his death being possessed of 30 Horses of the value of 200 Marks gave the said Horses to the Defendant with intent to defraud the Plaintiff and other Lords of their Heriots and that he went to the Defendant's house to seise his Heriot and the Desendant then strained the said Horses by reason of the Gift aforesaid for which the Action is brought To which the Defendant pleaded that the Plaintiff had seised one of the Horses nomine Herioti and as to the rest he did demurr in Law. Mounson Iustice was of opinion that the Plaintiff should recover the whole 200 Marks
and that is by reason of the privity betwixt them and because they are compellable to make Partition and in our Case they are compellable by Subpoena in Chancery to make Partition and notwithstanding that the Lands entailed be allotted to one Coparcenor onely and the fee to the other three yet thereby the Partition is not void but voidable As an Exchange by Tenant in tail is not void but if the Issue in tail accept of it it shall bind him during his life So here and also by the death of the Husbands the Partition is not void but voidable onely Clench Iustice How shall the Heir be said seised of the Lands entailed which was allotted to his Father and Mother after acceptance and agreement Atkinson Of certain part as Issue in tail and of other parts by force of the Partition and acceptance Quaere of that for if it be not of the whole as Issue in tail then the Lease is not void but for so much whereof he was seised in tail and then the Lessee is Tenant in common with Weston and then the Conusance is not good Cooper Serjeant elect Here wants certainty for the words of reference are too general and therefore void ad usum rectorum haeredum without shewing of the Donor or of the Donee and they are not helped by the subsequent words secundum antiquam Evidentiam ante hac factam for that also is incertain for it appeareth upon the Record That there are divers Evidences of the said Lands as the Charter of Gift the Recovery and the Conveyances made 4 H. 7. and which of them is intended by the Devise non constat and the said defect is not helped by any of the Averments i. That the Devisor was possessed of the said Charter of Entail at the time of his death and it is also not to the purpose for it may also be that he was possessed of other Evidences as ancient as the said Charter of Entail It is said that there is no other ancient Evidence of the Lord Scroop but it is not averred That there was not other ancient Evidences of the said Lands But admit that the limitation be good by that reference yet there was not any Estate-tail for every Estate-tail ought to be limited in certainty which see in the Statute of West 2. secundum formam in Charta Doni manifesto expressam c. and here it doth not appear upon the words of the Charter if the Estate-tail be limited to the Heirs of the Donor or unto the Heirs of the Donee and he said Admit that the same is an Estate-tail then the Question is If Jeofry be a Purchasor and if he be then by his death without issue the Estate-tail is spent And he said that the Estate for life in Jeofry is drowned by the Estate-tail limited to him for they are united together Egerton Solicitor-General Reasonable and favourable construction ought to be made of this Devise according to the intent of the Devisor As 35 Ass 14. Lands are given to B. and his Heirs if he hath issue of his body and if he die without issue of his body that the Lands shall revert to the Donor and his Heirs the same is a good Entail and upon the death of the Donee without issue the Donor shall re-enter And so here although that rectorum haeredum be incertain words yet the same is supplied by the subsequent words viz. secundum antiquam evidentiam As where the King grants to a Mayor and Commonalty such Liberties as London hath the same is a good Grant 2 H. 7. 13. 1 Leo. 245. And he conceived That this Estate-tail shall be said to begin in Henry although he was dead before and that all his Issues should inherit it and that it should not be determined by the death of Jeofry without issue and in proof thereof he vouched the Case before cited Littl. 81 82. for in that case the condition could not be holden to be performed if the Heir to whom the Gift was made in facto should be in by purchase and so the Estate-tail spent by his death without issue and also he vouched the Case of one Shelley That although the Heir took that which was not ever in his Ancestors yet he did not take it as a Purchasor but as in course of a descent and he also cited Robridge's Case And afterwards the same Term by award of the Court Iudgment was entred for the Plaintiff for the incertainty of these words secundum antiquam Evidentiam to what Evidence it should refer and also rectorum haeredum without shewing whose Heirs i. of the Donor or of the Donee And Wray chief Iustice said It shall be intended upon this Will That the meaning of the Testator was That the Lands should go unto his Heirs according to the Law according to all his Evidences which he had of his Lands and that is a Fee simple and it shall not be intended That the Testator had such a special remembrance of one Deed made two hundred years before viz. 25 E. 3. XXX Perry and Some 's Case Mich. 30 Eliz. In the King's-Bench Rot. 482. SOme Parson of the Church of Sherring in Essex 1 Cro. 139. libelled in the Spiritual Court against Perry for the Tithes of green Tares eaten before they were ripe and for the Tithes of the Herbage of dry Cattel and for Tithes of Sheep bought and sold and for Churchings and Burials Perry prayed a Prohibition and in his surmise as to the green Tares he said That they had used time out of mind c. in the same Parish In consideration that they had not sufficient Meadow and Pasture for their milch Kine and draught Cattel to pay for the Tithes of the ripe Tares the tenth shock but for their green Tares which are eaten up before they are ripe in consideration that they gave them to their Cattel they had used to be discharged of any Tithes thereof and the truth was That 400 Acres of Lands within the said Town had used to be plowed and sowed every year by the labour of draught Cattel and industry of the Inhabitants in consideration of which and that in the said Parish there was not sufficient Meadow nor Pasture for their draught Cattel they had used to be discharged of the Tithes of green Tares eaten before they were ripe It was holden by the Court that the same was a good custome and consideration for the Parson hath benefit thereby for otherwise the said 400 Acres could not be plowed for without such shift to eat with their draught Cattel the green Tares they could not maintain their plough Cattel and so the Parson should lose his Tithes thereof and for the Tithes of the green Tares he hath the Tithes of 400 Acres There was a Case lately betwixt the Lord Howard and Nichols where the suit in the Spiritual Court was for the Tithes of Rakings and a surmise to have a Prohibition was made that the
her customary interest as it were paramount the interest of the eldest Sister which she claimed by the Indenture Glanvil The customary interest of the eldest Sister is extinct upon this matter by reason of her agreement to it afterwards Where an Estate is given to one by a lawfull act it shall be adjudged in the party before agreement until it be disagreed unto and if the party do once agree he cannot afterwards disagree unto it If an Estate be lawfully made to a Copyholder but for years his whole interest in the Copyhold is determined and that a Freehold cannot be waived in pais but onely by matter of Record See 13 R. 2. Joynt-tenants 13. A Charter of Feoffment was made to four and Seisin was delivered to three of them in the name of them all and afterwards the fourth Feoffee came and saw the Deed and said That she would not have any thing in the Lands but altogether disagree unto it and it was that that disagreement by word in pais did not devest the Freehold out of her But when the party doth disagree in a Court of Record there the Freehold is out of the party ab initio and if he once agree he shall not disagree afterwards See Littl. Sect. 648. Tenant in tail enfeoffeth his Son and Heir apparent and another and Livery and Seisin is made to the other according to the Charter of Feoffment in the name of the Son also the Son not knowing of it nor disagreeing to the Feoffment the other Feoffee dieth the Son neither occupies the Lands nor takes the profits of them during the life of his Father the Father dieth the same is a Remitter to the Son because the Freehold is cast upon him and there is no default in him and therefore he is remitted But upon an illegal act is otherwise for if A. disseise B. to the use of C. in such case nothing is in C. before an express Agreement for the Disseisin was an unlawfull act And in this Case at Bar it doth not appear that the eldest Sister is dead and therefore the Right of the second Sister cannot now come in question Shute Iustice If the second Sister at the time of the making of the said Indenture had agreed unto it then it had been a full extiguishment but by an agreement afterwards it is not good Gawdy Iustice The remainder is in consideration of the Law and the Estate of the first Sister is not so determined that any can take advantage of it for the Lord against this Lease by Deed indented cannot enter or claim any thing and the second Sister although she hath not agreed yet she cannot enter during the life of her elder Sister for her Remainder takes effect in possession after the death of her said Sister But if any should take advantage of it it should be the Lord if his Deed indented did not stand against him And afterwards Iudgment was given against the younger Sister Clench Iustice was of another Opinion viz. That the Entry of the younger Sister notwithstanding that her elder Sister was alive was lawfull Quaere of that XCVIII Wellock 's Case Trin. 28 Eliz. In the King's-Bench A Parson in consideration of twelve pence granted to one of his Parishioners That he should hold his Lands discharged of Tithes It was holden by the whole Court That the same was no good Discharge being without Deed as a Lease of his Tithes But it was holden If the Parson afterward sueth the Parishioner for Tithes against the same Grant and Promise the Parishioner may have an Action upon the Case against the Parson upon his Promise although he cannot plead the Grant as a Lease XCVIII Lawson and Hare 's Case Trin. 28 Eliz. In the Common Pleas. 3 Len. 178. A Replevin by Lawson against Hare who avowed for a Leet Fee and shewed how that he and all those whose Estate he hath in the Hundred of C. have used to hold a Leet once every year and that at each time when such Leet hath been holden the Inhabitants within the said Leet have used to pay to the Lord of the Leet 16 d. for a Leet Fee and that the Lords of the said Leet have used to distrain for the same and shewed farther that 5 Julii 26 Eliz. he held there a Leet c. The Plaintiff replied Absque hoc that they had used to distrain and issue being joyned it was found for the Defendant It was moved in Arrest of Iudgment because that the Defendant had entitled himself to a Leet by an Estate in the Hundred and did not shew a Deed of it which was said he ought to have done as is 11 H. 4. 48. And of such opinion was Anderson and Windham Iustices Periam and Rhodes Iustices contrary as this case is and that the Avowant need not shew a Deed But if the hundred it self had been in question then a Deed ought to have been shewed But here the Avowant entitles himself to one thing scil a Leet and a Leet Fee by reason of the Hundred and it is sufficient for him to say That he is seised of the Hundred c. although it be by disseisin for if he hath possession of the Hundred be it jure vel injuria he shall have also all things incident thereunto for the possession of the Hundred draws to him the Leet and the Leet the Leet Fee. But admit in this case a Deed ought to be shewed 1 Cro. 217. 245. we are to see if the same be helped by the Statute of Jeofailes which extends to defaults in form in Writs Original or Iudicial Counts Declarations Plaints Bills c. 18 Eliz. cap 14. and such defects are thereby helped And by Anderson although that the Avowant be Quasi an actor yet in Rei veritate he is Defendant For although that he is to have retorn of the Cattel if it be found for him yet he who fueth the Replevin is the Plaintiff and if the Defendant will justifie the distress and not avow he is meerly Defendant and not a Plaintiff or Actor no more than in a Praâ—cipe quod reddat The Tenant voucheth and recovereth in value he cannot be said Plaintiff or Defendant and the Avowant cannot be Nonsuit as the Plaintiff But Windham and Periam were of a contrary opinion For Avowry is in lieu of a Declaration and the Plea of the Plaintiff to the Avowry is not called a Replication but a bar to the Avowry But admit the Avowry be within the Statute then if the Statute of Jeofailes there extend to help it And Anderson conceived that it did But the Plaintiff might have demurred upon the Avowry for the not shewing the Deed and Iudgment should have been given for him but when he hath traversed and the issue found against him now it shall be intended that Avowant hath a Deed although he hath not shewed the same Another Exception was taken because it is said in the Avowry That the said Leet
the Office found Also the Traverse is not good for he traverseth the matter of the Conveyance which is not traversable for if the King hath Title non refert quomodo or by what Conveyance he hath it As to the matter in Law scil Tenant in tail in Remainder is attainted of Felony if the King during the life of Tenant in tail shall have the freehold and he conceived that he should for it shall not be in abeyance and it cannot be in any other for when he is attainted he is dead as unto the King. The chief Lord cannot have it for Tenant for life is alive and also he in the Remainder in Fee c. the Donor shall not have it for the Tenant in Remainder is not naturally dead but civilly and the Land cannot revert before the Tenant in tail be naturally dead without issue but if there were any other in whom the Freehold might vest and remain then the King should not have the Freehold but onely the profits So if the Tenant be attainted the Lord shall have the Lands presently 3 E. 3. 4 E. 3. The Husband seised in the right of his Wife is attainted of Felony the King shall have but the profits for the Freehold vests in the Wife and if the Lord entreth the Wife shall have an Assise And Tenant in tail may forfeit for his life as he may grant for his life See Old N. B. 99. If Tenant in tail for life dower or by the curtesie be attainted of Felony the King shall have the Lands during their lives and after their deceases he in the Reversion shall sue unto the King by Petition and shall have the Lands out of the King's hands and there it is farther said That the Lord by Escheat cannot have it for the party attainted was not his very Tenant nor he in the Reversion for the term yet endures But now it is to see if the Freehold be in the King without Office and he conceived and argued that it was Where the King is entituled to an Action there the King ought to have an Office and a Scire facias upon it as where the King is entituled to a Cessavit Action of Waste c. 14 H. 7. 21. where the Entry in case of a common person is necessary there it is requisite that there be an Office for the King As if a Villain of the King purchaseth Lands or an Alien born c. so for a condition broken Mortmain c. And in some cases an Office is onely necessary to instruct the King how he shall charge the Officer for the profits which may be supplied as well by Survey as by Office as if the King be to take by descent or as the Case is here And true it is that a person attainted of Felony may during his Attainder purchase Lands and yet he cannot hold it against the King and it is clear that by the Common Law in such cases the Land was in the King but not to grant for the Statute of 18 H. 6. was an impediment to it but now that defect is supplied by the Statute of 31 H. 8. cap. 20. So that now the King may grant without Office See Doughtie's Case 26 Eliz. And in our Case an Office is not necessary to entitle the King but for explaining of his Title and see 9 H. 7. 2. The Lands of a man attainted of High Treason are in the King without Office so where the King's Tenant dieth without Heir or Tenant in tail of the Gift of the King dieth without issue See Br. Office before the Escheator 34. and see 13 H. 4. 270. A man is attainted of Treason the King before Office grants his Lands and Goods Things which lie in Grant as Advowsons Rents Remainder such things upon Attainder are in the King without Office. As to the general pardon of 23 Eliz. he said That that doth not extend to this Case and that this interest of the Queen by this Attainder doth not pass by that pardon out of the Queen so if the Queen had but a Right or Title onely Popham Attorney General By this Attainder the Estate of him in the Remainder in tail accrueth unto the Queen for the life of him in the Remainder for by our Law Felony is punished by the death of the Offendor and the loss of his Goods and Lands for the examples of others therefore nothing is left in the party Tenant for life is attainted of Felony the King pardoneth him his life yet he shall have his Lands during his life and he may dispose of the same for his life And so is it of Tenant in tail for he may forfeit all that which he hath and that is an Estate for his life which is a Freehold If Lands be given to one and his Heirs for the term of the life of another and the Donee be attainted of Felony the King shall have the Land during the life of Cestuy que vie for the Heir cannot have it because the bloud is corrupt and there is not any occupancy in the case for 17 E. 3. the Iustices would not accept of a Fine for the life of another because there might be an Occupant in the case But for a Fine of Land to one and his Heirs for the life of another they would take a Fine for there is no mischief of occupancy Land is given to A. for life the Remainder to B. for life the Remainder to the right Heirs of A. who is attainted of Felony B. dieth now the King hath the Fee executed And here in our Case If the Tenant for life had been dead no Praecipe had lien against him in the Remainder being in possession but the party who hath right is to sue unto the King by Petition 4 E. 3. If one seised of Lands in the right of his Wife for life be attainted the King shall have exitus proficua but he conceived that Case not to be Law For see F. N. B. 254 D. The Husband seised in the right of his Wife in Fee is outlawed for Felony the King seiseth the Husband dieth now shall issue forth a Diem clausit extremum the words of which Writ in such case are Quia A. cujus Terr Tenement quae ipse tenuit de jure haereditate N. uxoris suae adhuc superstitis occasione ejusdem Utlagar ' in ipsum pro quadam Felonia unde indictatus fuit c. in Man. Domini H. patris nostri extiterunt c. therefore the King had not the issues onely but also the Lands See to the same purpose the Register 292. b. Stamford's Placita Coronae 186 187. affirms That Tenant in tail being attainted of Felony shall forfeit his Lands during his life And he said that the Estate of Thomas Venables was in the King without Office not to grant for that is restrained by the Statute of 18 H. 6. but it is in him before Office so as he who hath right ought
The Queen gave and granted the Reversion in Fee to Sir Thomas Henage c. and after it was found by Office that the Rent was arrear ut supra Sir Thomas Henage entred and leased for years to Sir Moil Finch who being ejected brought a Quo minus in the nature of an Ejectione Firmae c. It was argued by Coke That this Lease upon the matter aforesaid is avoidable by the Patentee and that without Office for the conclusion of the Proviso is not that the Queen shall re-enter but that the Lease shall cease and be void and the Queen is not driven to demand her Rent as in such case a Subject is tied And he compared it to the Case of a common person If a common person leaseth for years upon condition that if the Lessee doth not build upon the Land demised a House within a year after that the Lease shall be void and afterwards grants the Reversion to a stranger the Grantee shall have advantage of this Condition be it broken before or after the Grant for the Lease in such case is void not onely voidable and the reason is because the Condition is collateral which see 11 H. 7. 17. A Lease for years is made upon Condition that if the Lessee doth not go to Rome before such a day that the Lease shall be void the Lessor grants the Reversion over the Lessee attorns and doth not go to Rome within the time appointed the Grantee may re-enter contrary if the conclusion of the Condition had been by way of re-entry for then it should run in privity by the Common Law But where a Lease with such Condition was made for life with this conclusion of the Condition that the Lease shall be void the Grantee shall not take advantage of that by the Common Law for there the Estate is not void untill re-entry for there is a Freehold which ought to be avoided by Entry But in our Case the Condition is upon the matter collateral for no demand is requisite to take advantage of the Condition And he said it is a general Rule where in the Case of a common person an Estate may be devested without Entry there in the Case of the Queen there needs not any Office but here in our Case if it had been a Case of a common person the Estate should be devested without Entry therefore in the Case of the Queen without Office See Stamford for the Major Proposition 55. but it doth not vest to have Trespass before Entry and he vouched the Case of Browning and Beston Plow 136. where such Lease after such Condition broken is merely void and dissolved And he said That it was the Opinion of the Iustices of the Common Pleas now late That by a Release to such Lessee after the condition broken nihil operatur for after the Condition broken he is but Tenant at sufferance and a Lease for years being but a Cattel may begin without ceremony and end without ceremony 2 H. 7. 8. If the King make a Lease for years with clause of Re-entry for not payment of the Rent although the Rent be behind yet the King shall not re-enter before Office found and there ought to be a Seisure for the Lease is not void by the non-payment of the Rent but onely voidable but if the Lease be void for not payment as in our case it is to what purpose shall an Office be for by the mere contract the Lease ceaseth without re-entry or without Office But admit that the Lease shall not cease without Office and before Office the Queen grants the Reversion over yet an Office found after the Grant shall avoid the Lease as well as if it had been found before the Grant. A Lease is made upon condition that if the Lessor build a House upon the Land leased and pay to the Lessee 20 l. that then the Lease shall be void the Lessor builds the House and afterwards grants the Reversion the Grantee pays the 20 l. now the Lease is void although the Condition be partly performed in the time of the Lessor and partly in the time of the Grantee So here although the Grant of the Queen be Mesn between the non-payment of the Rent and the Office for the Queen is not entitled by the Office to the Land but by the Condition broken and the Office is onely to inform the Queen of her Title and when the Office is once found it shall relate unto the time of the Condition broken and shall be of such force as if then it had been found H. 3. H. 7. f. 3. Cro. 221. and here in our case an Office was necessary for to entitle the Queen to the mean profits due betwixt the Rent arrear and the Grant of the Queen with which the Queen by her Grant hath not dispensed and without Office he could not have them for the arrearages of the Rent do not pass to the Patentee no more than if the Queen be seised of an Advowson and the Church become void if the Queen Grant the Advowson unto another the avoidance shall not pass The King seised of a Rent which is arrear grants the said Rent the arrearages shall not pass So here of the mean profits for they are flowers faln from the stalk c. Godfrey contrary and he said That the Lease is in being not impeached by the Condition or the Office and he said That notwithstanding that the words of the Lease are That the Lease shall be void yet before that an Office be found the Lease shall not be avoided In all cases where the Queen is entitled to any thing or to defeat the Estate of another an Office is necessary and that ground is taken in the case of the Lord Berkley Plow Com. 229. by Brown therefore here it ought to be found by Office See also the case of the Bishop of Chichester Fitz. Abridg. Forfeiture 18. 46 E. 3. The Bishop leased for life certain Lands given by the Progenitors of the King as parcel of the Barony of the Bishoprick rendring 30 l Rent and afterwards by assent of the Dean and Chapter released a great part of the said Rent the Lease and the Rent ought to be found by Office. So an Alienation in Mortmain ought to be found by Office because the interest of another is to be defeated So where the King's Tenant ceaseth c. the Villein of the King purchaseth Lands or but a Lease for years So where the King is but to have annum diem vastum Waste committed by the Committee of the King Lessee of the King for years makes a Feoffment in Fee in all these cases the King without Office shall not be entitled The same Law is in case of a Condition broken which see 2 H. 7. 8. Plow 213. Frowick in his Reading puts this case A Subject leaseth for years upon condition which is afterwards broken and afterwards the Lessor becomes King here needs no Office for at the time
did well lie and he said That this Case is not like unto the Cases which have been put of the other side For there is a great difference betwixt Contracts and this Case for in Contracts upon sale the consideration and the promise and the sale ought to meet together for a Contract is derived from con and trahere which is a drawing together so as in Contracts every thing which is requisite ought to concur and meet together viz. the consideration of the one side and the sale or the promise on the other side But to maintain an Action upon an Assumpsit the same is not requisit for it is sufficient if there be a moving cause or consideration precedent for which cause or consideration the promise was made and such is the common practice at this day For in an Action upon the Case upon a promise The Declaration is laid That the Defendant for and in consider action of 20 l. to him paid posted scil that is to say at a day after super se assumpsit and that is good and yet there the consideration is said to be Executed And he said that the Case in Dyer 10 Eliz. â—72 would prove the Case For there the Case was That the Apprentize of one Hunt was arrested when his Master Hunt was in the Country and one Baker one of the neighbours of Hunt to keep the said Apprentize out of prison became his ball and paid the Debt afterwards Hunt the Master returning out of the Country thanked Baker for his neighbourly kindness to his Apprentize and promised him that he would repay him the sum which he had paid for his servant and Apprentize And afterwards upon that promise Baker brought an Action upon the Case against Hunt and it was adjudged in that Case that the Action would not lie because the consideration was precedent to the promise because it was executed and determined long before But in that Case it was holden by all the Iustices That if Hunt had requested Baker to have been surety or bail and afterwards Hunt had made the promise for the same consideration the same had been good for that the consideration did precede and was at the instance and request of the Defendant Rhodes Iustice agreed with Periam and he said That if one serve me for a year and hath nothing for his service and afterwards at the end of the year I promise him 20 l. for his good and faith full service ended he may have and maintain an Action upon the Case upon the same promise for it is made upon a good consideration but if a servant hath wages given him and his Master ex abundanti doth promise him 10 l. more after his service ended he shall not maintain an Action for that 10 l. upon the said promise for there is not any new cause or consideration preceding the promise which difference was agreed by all the Iustices and afterwards upon good and long advice and consideration had of the principal Case Iudgment was given for the Plaintiff and they much relied upon the Case of Hunt and Baker 10 Eliz. Dyer 272. See the Case there CCLXXXVII Higham 's Case Trin. 25 Eliz. In the Common-Pleas 1 Cro. 15. More 221. 3 Len. 130. IT was found by special Verdict That Thomas Higham was seised of 100 Acres of Lands called Jacks usually occupied with a House and that he let the said House and 40 of the said 100 Acres to J. S. for life and made his Will by which he devised the said House and all his Lands called Jacks then in the occupation of the said J. S. unto his Wife for life and that after the decease of his Wife the remainder thereof and of all his other Lands belonging to Jacks should be to R. his second son c. And by Mead The Wife shall not have by implication the residue of Jacks for she had an express Estate in the House and 40 Acres of Lands and having expressed his Will concerning the same it shall not be extended by implication and he said It had been adjudged between Glover and Tracy That if Lands be devised to one and the heirs Males of his body and if he die without heirs of his body that then the Land shall remain over that the Donee hath but an Estate in tail to the heirs Males of his body Anderson 1 Roll. 839. in the time of Sir Anthony Brown it was holden that if a man seised of two Acres of Lands deviseth one of them to his Wife for life and that J. S. shall have the other Acre after the death of his Wife that the Wife hath not any Estate in the latter Acre It was also moved What thing shall pass to his second son by this Devise and by the Lord Anderson The words usually occupied with it amount to the words the Lands let with it but these 60 Acres are not let with it therefore they shall not pass Windham contrary Although they do not pass by the words occupied with it yet they shall pass by the name of Jacks or belonging to Jacks and afterwards Anderson mutata opinine agred with him A TABLE OF THE Matters in this Book A ASsise 11 55 94 Action upon the Statute of 5 Eliz. for Perjury 18 Abatement of Writs 18 64 Action upon the Statute of 13 E. 1. of Winchester 19 109 212 Actions of Slander 34 74 120 127 146 Assignment of a duty to the Queen for a Debt if good 79 Accompt 91 245 Appeal of Burglary 111 Award where good and where not 130 145 Action not good upon a Lease untill the whole term be expired 137 In Appeal of Robbery one shall not have restitution without fresh suit 183 Attaint of Felony 169 Appeal of Murther 195 Action against an Executor who refused the Executorship 221 Assumpsit upon an agreement to become bound in a Bond for the sum promised 223 Action upon the Statute of 5 Eliz. concerning Perjury 249 C COvenant 5 17 60 153 155 164 237 268 Covenant to levy a Fine 114 Custome 10 140 Costs none upon Non-suit in an Action upon an escape 12 Conversion by the Executors of the goods of the Testator 42 Challenge of Jurors 53 141 Common Recovery 61 89 169 170 275 Costs upon the Statute of 28 H. 8. not allowed 71 Copiholds and Copiholders 97 142 264 Capias ad satisfaciendum sued out and not prosecuted within a year and a day if Scire facias must be sued out 101 Condition in a Lease void if repugnant to the Demise 176 Conveyance of Lands to Feoffees with condition c. 175 Capias ad satisfaciendum sued out after a Release an Audita quaerela lies 215 Case for disturbing him of his Common 229 Case for Toll 240 Case for misusing of the Plaintiff's Horse to which the Defendant pleaded that the Horse was waved within his Manor c. 242 Case upon a promise whereas one became surety and bail to J. S. and afterwards for default of
AN Information was exhibited in the Exchequer for the Queen against the Executors of William Jordan Surveyor of the Ordinance c. and the Executors of John Bowland Deputy of Ambrose Earl of Warwick Master of the Ordinance c. In which was set forth for the Queen That certain Powder Pellets and other furniture of War came unto the hands of the said Jordan and Bowland in respect of their said Offices to the value of 400000 l. and shewed how much came to each of them and the special charge incertain per quod onerabiles computabiles Dominae Reginae devenerunt nec tamen computum unquam inde reddiderunt nec reddere voluerant sed bona catalla praedicta ad usus suos proprios converterunt in deceptionem dictae Dominae Reginae c. The Defendants pleaded Not guilty upon which the Queen's Attorny did demur in Law because the Defendants have answered onely to the Conversion in which case although they have not converted yet if the said Goods have come to the hands of their Testator it is sufficient for the Queen and the Defendants are chargeable to the Queen for the same And the Opinion of all the Barons was clear that the Defendants ought to answer to the Charge c. XLIII Collet and the Bailiffs of Shrewsbury 's Case Pasc 29 Eliz. In the Common Pleas. IN a false Imprisonment the Defendants justified by Prescription scil that they have used if any person within their Town contemptuose se gesserit against the Bailiffs of the said Town or any Warden of any Trade there to commit such a person to Prison for the space of a day or more at the least at their discretions And shewed farther That the Plaintiff did mis-behave himself tam factis quam verbis against the Wardens of such a Mystery in the said Town c. And when the Bailiffs super Querimoniam eis inde factam sent for the Plaintiff he would not come to them but mis-behaved himself against them tam dictis quam factis for which they did commit him to Prison c. upon which there was a Demurrer And afterwards Iudgment was given for the Plaintiff because their Prescription is not good for it is too large to imprison Subjects at their discretion Also they have set forth the offence of the Plaintiff generally i. Misbehaviour tam factis quam dictis without alledging any special Misdemeanor in certain XLIV Pasch 29 Eliz. In the Common-Pleas 3 Leu. 79. IT was holden by the whole Court That where a man makes his Will in this manner I will and bequeath my Land to A. and the name of the Devisor is not in the whole Will yet the Devise is good by averment of the name of the Devisor 1 Cro. 100. 1 Leo. 113. and by proof that it was his Will. And if one lying sick in extremis having an intent to devise his Land by word makes such a Devise but doth not command the same to be put in writing but another without his knowledge or command puts the same in writing in the life of the Devisor it is a good Devise for it is sufficient if the Devise be reduced in writing during the life of the Devisor XLV Leonard Lovelace 's Case Trin. 27 Eliz. In the Common-Pleas IN Waste the Case was 1 Anders 132. More Rep. 371. Savile Rep. 75. 1 Cro. 40. That Lands were devised to the Father of the Defendant and to his eldest Issue male de corpore suo exeunti And upon Demurrer it was adjudged That by this Devise no Estate passed but an Estate for life unto the Father of the Defendant the Remainder to his eldest Son for life so as no Estate of Inheritance passed thereby and therefore punishable for Waste XLVI Cobb and Prior 's Case Postea 48. Hill. 33 Eliz. In the Common-Pleas THE Case was A man deviseth his Lands to his Wife during the minority of his Son upon condition That she shall not doe Waste during the minâ—â—â—â—y of her said Son and dieth The Wife takes a Husband aâ—â— dieth the Husband commits Waste It was holden by the whole Court That the same is not any breach of the Condition XLV Salway and Luson 's Case Mich. 30 and 31 Eliz. In the Common-Pleas 1 Leon. 169. MAtthew Salway brought a Writ of Right against Luson and the Writ was Messuagium 200 acr jampnor bruerae and exception was taken to the Writ because that jampnor bruerae were coupled together where they ought to be distinctly severed and so many acr jampnor and so many acr bruerae although it was objected on the part of the Demandant in maintenance of the Writ That in the Register fol. 2. the Writ of Right is Redditu unius librae Mac. Obed. i. Mace and Cloves together without distinction or severance And it was said in a Writ of Right we ought to follow the Register and therefore a Writ of Right was abated because the word Pomarium was put in the Writ for in the Register there is no such Writ and the word Gardinum comprehends it But in other Writs as Writs of Entry c. it is otherwise See the Case of the Lord Zouch 11 Eliz. 353. In a Writ of Entry Sur Disseisin mille acr jampnor bruerae But the exception was not allowed for it may be that jampnorum bruerae lie so promiscuously that they cannot be divided And see 16 H. 7. 8. and 9. The respect which the Iustices there had to the Register so as they changed their opinions conformable to the Register Another exception was taken to the Writ because the Demandant demands duas partes custodiae de Hay in the Forest of C. and the opinion of the whole Court was that the Writ ought to be Officium custodiae duarum partium de Hay and not duas partes custodiae As Advocatio duarum partium Ecclesiae not duas partes advocationis another exception was because the Writ was duas partes c. in three to be divided whereas it should be divisus non dividend for dividendum is not in any Writ but a Writ of Partition And by Windham the parts of this Office are divided in right Quod Curia Concessit another exception was taken because in the Writ it is not set down in what Town the Forest of C. is so as the Court doth not know from whence the Visne should come for no Venire shall be de vicineto Forestae as de vicineto Hundredi Manerii and that was holden to be a material exception Another exception was taken because a Writ of Right doth not lie of an Office for at the Common Law an Office did not lie of it but now it doth by the Statute of West 2. For it was not liberum tenementum but the party grieved was put to his Quod permittat And of this opinion was the whole Court. XLVIII Johnson and Bellamy 's Case Hillar 31 Eliz. In the Common-Pleas
Law doth admit the oath of the party in his own cause as in Debt the Defendant shall wage his Law Periam That 's an ancient Law but we will not make new Presidents for if such oath be accepted in this Case by the same reason in all cases where is secrecy and no external proof upon which would follow great inconveniencies and although such an Oath hath been before accepted of and allowed here yet the same doth not move us and we see no reason to multiply such Presidents The Declaration is that the Plaintiff was robbed of 10 l. de denariis ipsius querentis and upon the Evidence it appeareth That the Plaintiff was the Receiver of the Lady Rich and had received the said money for the use of the said Lady and exception was taken to it by Shuttleworth but it was not allowed for the Plaintiff is accomptable to the Lady Rich the said money And it was agreed that if he who was robbed after he hath made Hue and Cry doth not farther follow the thieves yet his Action doth remain CX Large 's Case Mich. 29 Eliz. In the King's-Bench 3 Len. 182. THE Case was A. seised of Lands in Fee devised the Lands to his wife until William his son should come to the age of 22 years and then the Remainder of part of the Lands to his two sons A. and John The Remainder of other part of his Lands to two others of his said sons upon condition That if any of his said sons before William should come to the age of 22 years shall go about to make any sale of any part c. he shall for ever lose the Lands and the same shall remain over c. And before his said son William came to the age of 22 years one of the other sons Leased that which to him belonged for 60 years and so from 60 years to 60 years until 240 years ended c. Bois A. and J. are joynt-tenants of the Remainder and he said That the opinion of Audley Lord Chancellor of England is not Law scil where a man deviseth Lands to two and to their heirs they are not joynt-tenants as to the survivor but if one of them dieth the survivor shall not have the whole but the heir of his that dieth shall have the moyety See 30 H. 8. Br. Devise 29. And he said That this Lease although it be for so many years is not a sale intended within the Will and so is not a Ioynture 46 E. 3. One was bounden that he should not alien certain Lands and the Obligor did thereof enfeoff his son and heir apparent the same was held to be no alienation within the Condition of the Obligation Of the other side it was argued The remainder doth not vest presently for it is incertain if it shall vest at all for if William dieth before he cometh to the age of 22 years it was conceived by him that the Remainder shall never vest for the words of the Will are Then the Lands shall remain c. 34 E. 3. Formedon 36. Land is devised to A. for life and if he be disturbed by the heir of the Devisor that then the Land shall remain to D. Here D. hath not any remainder before that A. be disturbed It was farther argued that here is a good Condition and that the Devisee is not utterly restrained from sale but onely untill a certain time scil to the age of William of 22 years And it was said that this Lease is a Covenous Lease being made for 240 years without any Rent reserved As such a Lease made for 100 years or 200 years is Mortmain as well as if it had been an express Feoffment or Alienation But it was said by some Antea 36 37. that here is not any sale at all nor any lease for the Lessor himself hath not any thing in the Land demised As if a man disseiseth a Feme sole and seaseth the Lands and afterwards marrieth the disseisee he shall avoid his own Lease 5 E 3. One was bound that he should not alien such a Manor the Obligor alieneth one Acre parcell of it the Obligation is forfeit See 29 H. 8. Br. Mortgage 36. A. leaseth to a religious house for 100 years and so from 100 years to 100 years untill 800 years be encurred the same is Mortmain Vide Stat. 7 E. 1. Colore termini emere vel vendere And in the principal Case if the Devisee had entred into a Statute to the value of the Land leased by the intent of the Will the same had been a sale and such was the opinion of the whole Court and by the Court the word in perpetuum shall not be referred to the words precedent but unto the words following scil in perpetuum perdat the Lands And if a custome be in the case that the Infant of the age of 15 years may sell his Lands if he make a Lease the same is not warranted by the custome And afterwards it was adjudged by the whole Court that the Lease made as before was a sale within the intent of the Will of the Devisor CXI Brooke 's Case Hill. 29 Eliz. In the King's-Bench APpeal of Burglary was brought against Brooke who was found guilty and before Iudgment given the Plaintiff died And now Egerton moved that Iudgment should be given for the Queen upon that verdict or at least that the Declaration in the Appeal should be in lieu of an Indictment and that the Appealee be thereupon arraigned and put to answer the same For if the Appellant had been Nonsuit or released the Defendant should be arraigned at the suit of the Queen Coke God hath now by the death of the party delivered the Defendant and it is not like where the Plaintiff releaseth for there it is the default of the Act of the party but here it is the Act of God and he held it for a rule That where auterfoits acquit is a good Plea there also auterfoits convict shall be a good Plea And it was holden in Sir Tho. Holcroft's Case Sir Thomas Holcroft's Case That where the party is convicted at the suit of the Queen there the Appeal doth not afterwards lie Wray If the Appellant dieth before Verdict the Defendant shall be arraigned at the suit of the King But if his life hath been once in jeopardy by Verdict he conceived that it shall not again be drawn into danger and some were of opinion that the Defendant should be arraigned at the suit of the Queen upon the whole Record and plead auterfoits acquit and that they said was the surest way CXII Ognel and Paston 's Case 29 Eliz. In the Exchequer .. 1 Cro. 64. CLement Paston was Defendant in an Action of Debt brought against him by George Ognel upon an Escape and the Case was this Francis Woodhouse was bound in a Recognizance to the said Ognel Whereupon Ognel sued forth a Scire facias and upon two Nihils retorned had
Iudgment and upon that a Levari facias and then a Capias ad satisfaciendum upon which Paston the Defendant a Sheriff of Norfolk to whom the Capias was directed took the party and afterwards suffered him to escape The Defendant pleaded That before the said Capias the said Francis Woodhouse was committed to him and in his ward continued for Felony and after the Capias was endicted thereof and arraigned and found guilty after which he escaped And all this was found by special verdict First it was argued if upon a Recognizance acknowledged in the Chancery an Action lieth and it was said by Bois That it doth not lie in the mouth of the Sheriff to say that this Capias doth not lie in the Case As if a Iustice of Peace maketh a Warrant to a Constable which Warrant is not good in Law yet the Constable is not to examine that or to dispute the validity of it 5 H. 7. And a Capias hath lain in such case and so it hath been the course for the space of 200 years and he said That although Francis Woodhouse was convict of Felony yet the same is not any discharge of the execution as 35 H. 6. 8. although the husband be attainted of Felony yet he is not so dead in Law but if the King pardon him afterwards he shall be restored and his wife shall have Dower and if he be killed his wife shall have an Appeal 12 H. 4. My Villain is attainted the same is no discharge of his villainage as to me But if the King pardon him after he shall be my Villain 6 E. 4. 4. One is in Execution pro fine Regis and afterwards is outlawed for Felony and hath his Charter of pardon for the Felony yet he remains in Execution for the interest of the party for there the Execution is not extinct but onely suspended Godfrey contrary Capias doth not lie upon a Recognizance but if Debt be brought upon a Recognizance and the Plaintiff recovereth then a Capias lieth which see 14 Eliz. Dyer 306. Puttenham's Case 2 H. 4. 6. In Dower the Demandant recovereth her Dower and damages and prayeth a Capias ad satisfaciendum for the damages but she could not have it for no Capias lieth upon the original and to the same purpose see 8 R. 2. Fitz. Execution 164. 15 H. 7. 15. Capias pro fine lieth for the King where no Capias lieth in the Original but no Capias ad satisfaciendum for the party no Capias in Debt before the Statute of 25 E. 3. and see the Stat. of West 2. cap. 18. cum debitum fuerit recognit si in electione sequent execut habere per Fiere facias or Elegit therefore no other manner of Execution for the Statute hath provided ut supra And he said That debt doth not lie upon a Statute Merchant or Staple See 15 H. 7. 16. Another reason why a Capias doth not lie in such case is upon the words of the Recognizance Et nisi fecerit tunc concedit quod summa praedict levetur de bonis catallis terris tenementis Ergo not of the body And when Woodhouse was convict of Felony the Queen had an interest in his body and upon the pardon the Execution which was suspended during the conviction is now received And he confessed the case of Villainage that during the attainder the Lord cannot meddle with the Villain in the presence of the King See 27 Ass 49. and see 2 H. 4. 65. A. was condemned to B. in certain damages upon an Action of Trespass brought by B. against A. and A. was committed to Newgate in Execution upon a Capias ad satisfaciend and afterwards was arraigned of Felony and thereof attainted and committed to the Ordinary as Clark Attaint And the Iustices commanded the Ordinary That after that the prisoner had made his purgation that he should not let him go at large but should conduct him to the prison of Newgate again And there is a Quaere made by the Reporter If after purgation the Ordinary might suffer him to escape and if he at whose suit he was condemned in Trespass shall have debt against the Ordinary for such escape At another day the matter was argued by Coke for the Plaintiff at the Common Law No Land was subject to Execution i. no Lands of the Debtor himself but yet the Lands of the Debtor being descended to his heir should be chargeable to the Obligee of the Debtor in which he and his heirs were bound and that seemed to be very strange and he conceived That in that point custome and usage had encroached upon the Common Law The Statute of West 2. c. 13. gave Elegit of the moyety of the Lands but yet there was no Capias in Debt before 25 E. 3. cap. 17. before which Statute it was a general Rule That no Capias lay at the Common Law but where the King was to have a Fine See 35 H. 6.6 At the Common Law Capias did not lie but where the Action is vi armis or that the King is to have a Fine For there was Outlawry at the Common Law in such case It will be objected That the Statute of 25 E. 3. which gave Capias in Debt doth not extend to a Scire facias upon Recovery That such Process shall be made in a Writ of Debt as is used in a Writ of Accompt and here is no Writ of Debt but a Scire facias onely If my Debtor upon an Obligation cometh without a Writ and confesseth the Debt I shall have a Capias against him and yet the same is not in a Writ of Debt Ergo so in case of Recognizance Where a Statute speaks precisely of a Writ Original yet oftentimes by Equity it shall extend to a Scire facias and other judicial Process As upon the Statute of 25 E. 3. cap. 7. which enables the Incumbent to plead in a Quare Impedit It shall extend to a Scire facias upon a Recovery in a Quare Impedit 46 E. 3. 13. And in our case a Capias doth not lie by the Letter yet it lieth by Equity And he said That Statute which helps the Subjects to get their debts and rights are to be and have been taken beneficially and liberally expounded in advantage of the Creditors And see 48 E. 3. 14. Where a Scire facias is sued upon a Recognizance a Capias doth not lie but there it is holden that in a Scire facias upon a Recovery in debt a Capias lieth And as to this Capias the Sheriff is but the minister to the Court and he is not to controll the Court but to accept of the same as the same is directed to him It is a common learning in our Law That although the Court doth proceed inverso ordine yet it shall not be utterly void 36 H. 6. 34. Iudgment given at the Common Law of Lands within the five Ports for the five Ports in times past
were parcel of the Crown But of Lands in Wales it was otherwise before the Statute of 27 H. 8. by which Wales is united to the Crown And although that the Capias erronice Emanavit the same is but erroneous and so voidable and not void for Error may be as well assigned in the Executione judicii as in redditione judicii 16 H. 7. 6. Outlawry without an Original Writ is not void but voidable 2 R. 2. and the reason thereof is given 11 H. 7. in Collins's Case but they are Iudges of the cause although that their proceedings be not according to Law. But the Sheriff or any other stranger shall not take advantage thereof See 8 E. 4. 21 E. 4. and he cited to this purpose 13 E. 3. Barre 253. The Iailor shall not take advantage of undue proceedings of the Auditors against an Accomptant and he insisted much upon the Vsage and Precedents and customs of Courts which are Laws in such cases And although that by strict and precise rule of Law a Capias doth not lie naturally nor properly upon a Recognizance where the suit begins by Scire facias yet because the usual practice and common experience hath allowed of it and admitted thereof from time to time It is safer to suffer a mischief to one than an inconvenience to many And although the Proverb Exempla illustrant non docent aut probant may hold place in some arts and Sciences yet in our Law Examples are good arguments 11 E. 4. 3. In the King's Bench a man in custodia Marischalli shall be put to answer a Bill but in the Common-Bench a man who is in the custody of the Guardian of the Fleet shall not be put to answer to a Bill and that is by reason of the several usages and customs in the said several Courts so as custome and usage makes a Law in such case 39 H. 6. 30. in a Writ of Mesne The Iudges were clear of opinion That the Plaintiff ought not onely to shew the Tenure betwixt him and the Tenant Peravail but also betwixt the Mesne and the Lord Paramount yet when they had conferred with the Prothonotaries and saw the Precedents of former times in such cases They would not change the former courses notwithstanding that their opinions were to the contrary So 2 H. 7. 8. The Venire facias is 12 liberos legales homines and the Sheriff retorned 24 and holden good by reason of the usual course of the Court in such cases and yet in our Law the number of persons is not material which see in the Earl of Leicester's Case 15 H. 8. but custome dispenseth with the same Atkinson argued the contrary At the Common Law for Execution in Debt within the year a Levari facias and a Fieri facias lay after the year the party was put to a new Original and there was no Capias at the Common Law but in cases of contempt force or other notable misdemeanour untill the Statute of 25 E. 3. cap. 17. which gave it in Debt Detinue c. And the Statute of West 2. cap. 18. gave Fieri Facias and Elegit but no Capias was given upon a Recognizance by any Statute and he relied much upon the Book of 48 E. 3. before cited the rule of which Book is That in a Scire facias upon an Original in which a Capias lieth the Scire facias shall follow the nature of the Original upon which it is founded but where a Capias ad respondendum doth not lie there not a Capias ad satisfaciendum 34 H. 6. 451. In Debt against Executors they appear and plead fully administred and it is found against them and Iudgment is given for the Plaintiff who after the year sueth a Scire facias against the Executors and Execution awarded by default and thereupon a Capias and Exigent And that matter being shewed to the Court a Supersedeas was granted because the Capias improvide erronice emanavit for no Capias lieth against Executors where they plead c. although it be found against them Ergo neither a Scire facias grounded thereupon And although the Stat. of 25 E. 3. gives a Capias in Debt yet if Debt be recovered in a Justicies a Capias doth not lie by the Equity of the said Statute and he relied very strongly upon Puttenham's Case 13 Eliz. cited before And as to that which hath been said That notwithstanding that the Capias was against the Law and so his imprisonment by colour thereof wrongfully yet de facto he was in Prison and the Sheriff hath taken him and he shall excuse himself in a false imprisonment brought yet I say That this erroneous Process appearing to you you will not again err by allowing these erroneous proceedings but rather reform them For the Sheriff himself who is a stranger to the Record cannot have Error to reverse these proceedings and so without remedy unless the Court doth relieve him therein And he said farther That this Capias Posito quod legitime emanavit cannot fasten or work upon Francis Woodhouse being imprisoned and convict of Felony for being imprisoned and restrained of his liberty how can he his restraint continuing be de novo restrained before that he be enlarged and restored to his liverty Nam omnis privatio praesupponit habitum and Ergo imprisonment liberty precedent And so he concluded That Francis Woodhouse Neque de facto nor de jure was in prison and that no Capias lieth in the Case especially after the year as here it was and the party being convict and in prison cannot be taken c. Manwood If within the year a Levari facias or a Fieri facias be sued forth and be retorned not served or that Vicecomes non misit Breve and so the year passeth in the default of the Sheriff yet the Plaintiff shall not be put to a Scire facias At another day it was argued by Tanfield for the Defendant That upon this Scire facias no Capias lieth and then no lawfull Execution and then no escape Where there is no Capias in the Original there is no Capias in the Execution but here in our Case there is not any Original because it is a Scire facias upon a Recovery Ergo no Capias can be where there is not any Original As to that which hath been said That the ancient Presidents and course in Cancel is against us be it so yet the course in the King's Bench and Common Pleas is with us That a Capias doth not lie in such case of Scire facias And the Chancery as to the Common Law ought not to vary from these Courts for one and the same Common Law ought to be in all the said Courts of things of the Common Law and the Presidents alledged of the other side are silent and sleeping proceedings and presidents Slips of Clarks which were never drawn into question the ancientest of which was hatcht but in the later part of
Writ of Account against Robston Hil. 29 Eliz. Rot. 1. and now Robston brought a Writ of Error and assigned for Error That whereas the said Writ of Account was brought against the said Defendant as Receiver of Monies for to render Account quando ad hoc requisitus fuerit the said Writ ought to have been more special But the opinion of the Court was That the Writ in his generalty was holden good And so it was adjudged in the Case of one Gomersal scil quod reddat ei rationabilem computum suum de tempore quo fuit Receptor Denariorum ipsius A. Another Error was assigned That the Iury had assessed damages which ought not to be given in an Action upon Account which see 2 R. 2. Acco 45. and 2 H. 7. 13. But see the Book of Entries fo 22. In a Writ of Account against one as Receivor to Account render damages were given For if my Bailiff 1 Leon. 302. by imploying of my Moneys whereof he was the Receivor might have procured to me profit and gain but he neglects it he shall be chargeable to me in right and shall answer for it And here in our case damages shall be given and afterwards notwithstanding all objections made to the contrary the Iudgment given before was affirmed CLXI Yates 's Case Hill. 30 Eliz. In the King ' s-Bench 3 Len. 231. A Writ of Error was brought by Yates and others upon a Iudgment given in a Writ of Partition and it was assigned for Error that the Writ of Partition was not sufficient for it is there set forth That the Plaintiffs insimul pro indiviso tenent cum defendente c. and do not shew of what Estate or whose inheritance See F. N. B. 61. 5. and 62. a. insimul pro indiviso tenent de haereditate quae fuit A. matris of the Plaintiff and the Defendant 1 Cro. 759 760. And yet see F. N. B. 62. A. A Writ of Partition betwixt strange persons without naming haereditate in the Writ And see also that a Partition of Lands in London without shewing of what Estate Courtney and Polewheel's Case Finch and Firrel's Case L. Cheney and Bell's Case See Register 76. 6 Eliz. in a Partition by Courtney against Polewheel no Estate shewed in the Writ so betwixt Finch and Firrel and betwixt Fry and Drake 14 Eliz. Devon. 26 Eliz. betwixt the Lord Cheney and Bell and Mich. 4 and 5 Ph. and Ma. Rot. 208. It was holden That it is not necessary in such a Writ to shew the Estate and such also was the opinion of the Court in the principal Case but Tenants in common ought to shew it in the Count And the Iudgment given was affirmed CLXII Phillips and Stone 's Case Mich. 29 and 30 Eliz. In the King's-Bench IN Debt upon an Obligation the Defendant pleaded the Statute of 32 H. 6. upon which this special matter was found That one J. S. had heretofore recovered against him 100 l. in an Action of Debt and upon the Capias ad satisfaciend he was taken and committed to the Plaintiff who was Gaoler c. to the Sheriff and so being in Execution he escaped and afterwards he was re-taken by the Plaintiff and kept in prison and so being in prison made the Bond upon which the Action is brought It was said by the Court That if a Prisoner being in Execution escapes with the permission of the Gaoler the Execution is utterly gone and extinguished and the Plaintiff at whose Suit he was taken in Execution shall never resort to him who escapes but shall hold himself to the Goaler for his remedy but if such a Prisoner escapeth of his own wrong without the privity or consent of the Gaoler the Gaoler may well take him again for his indemnity untill the Plaintiff hath determined his Election whether he will have his remedy against the Gaoler or that he will maintain his Execution 13 H. 7. 1 and 2. But as unto the Statute of 23 H. 6. the Court was of Opinion That posito that the party who escapes cannot be taken again yet being taken the Bond which is taken colore Officii is within the said Statute because the party was retaken colore Executionis and so the Bond was void CLXIII Gering 's Case Mich. 29 30 Eliz. In the King 's Bench. IN Debt upon an Obligation against one as Executor 1 Len. 87. the Case was That the Testator of A. by his Will appointed certain lands and named which should be sold by his Executor and the monies thereof coming to be distributed betwixt his daughters when they have accomplished the age of one and twenty years The lands are sold and if the monies thereof being in the hand of the Executor untill the full age of the daughters shall be Assets to pay the debts of the Testator was the question and it was the opinion of the whole Court that the said monies should not be Assets for they said that that money is limited to a special use Quaere of this Case For I have heard that it was afterwards resolved in another Case that the monies in the like Case remaining in their hands should be Assets CLXIV Davies and Percie 's Case Mich. 29 30 Eliz. In the Common Pleas. BEtween Margaret Davies and one Perce the Case was 2 Roll 284. Goldb 58. That one Anth. Perce upon speech of a marriage to be had betwixt the said Anthony and the mother of Margaret covenanted by Indenture with certain friends of the mother to pay to all the daughters of the mother 20 l. a piece at their several ages of four and twenty years and to perform the Covenant was bound to the said friends in an Obligation Anthony Perce made his Will and willed that his Executors should pay to each of the daughters 20 l. at their several ages of four and twenty years in discharge of the said Covenant and died Now the said Margaret sued the Executors in the Spiritual Court for the 20 l. bequeathed to her and upon this matter the Executors prayed a Prohibition And by the Lord Anderson a Prohibition will lie for here is no Legacy but the Will refers to the Covenant and is in discharge of the Covenant As if A. be indebted to B. in 20 l. And if A. by his Will willeth that his Executors shall pay to the said B. 20 l. in discharge of the said debt the same is not any Legacy but a Declaration that the intent of A. is that the debt shall be paid Periam Iustice was of the same opinion as the Lord Anderson and Anderson said If a Legacy be bequeathed to me and the Executor covenants to pay me the said Legacy and afterwards J. sueth the Executor in the Spiritual Court he shall have a Prohibition Quod caeteri Justiciarii negaverunt See F. N. B. 44 Br. If the Testator by his Will charge his Executors to pay his debts and his creditors they do
not in the King without Office in the life of the party attainted upon the words of the Act shall forfeit See Stamford Prerogat 54 55. acc He said That this interest which came unto the King by this Attainder is but a Chattel and then it is remitted by the Pardon and so he conceived if it be a Freehold For the words of the general Pardon are large and liberal Pardon and release all manner of Treasons c. and all other things Causes c. and here Forfeitures are pardoned and this word things is a transcendent c. and although it be a general word yet by the direction of the Act of general Pardon it ought to be beneficially expounded and extended as if all things had been specially set down Also the words are Pardon them and their Heirs therefore the Pardon extends to Inheritance for otherwise there is no use of that And he conceived That by the first branch of this Act that the same extends to Inheritances and to acquit the Lands of all incumbrances for every Offence not excepted for there is the word Heirs and the third branch concerns onely Chattels and that is by the word Grant where the first is by words of acquittal See 33 H. 8. br Charter of Pardon 71. Tenant of the King dieth seised the Heir intrudes Office is found by Pardon of Parliament all Intrusions are pardoned in that case the Offence is pardoned but not the issues and profits of the Lands but by a Pardon before all is pardoned But here in our case the Office is not void for the Statute makes all Precepts Commissions c. void being awarded upon such forfeiture See also in the second branch Vexed or inquieted in Body Goods or Lands and see also among the Exceptions That persons standing indicted of wilfull Murther and Forfeiture of Goods Lands Tenements grown by any offence by such person By which he said that if such Exception had not been the Land of such person if he had been attainted upon such Indictment should be forfeited as to the Traverse he said That because the Office is true our Plea is in the nature of Monstrans de Droit although it concludes with a Traverse We vary from the Office in number of the persons and in the day of Feoffment and every circumstance in case of the King is to be traversed and our Plea in substance confesseth and avoideth the Offence Although that here the King be intituled by double matter of Record scil the Attainder and the Office yet one of the said Records scil the Attainder is discharged by another Record scil the Pardon and then but one Record remains scil the Office and therefore our Traverse well lieth And he said that by the common Law there was a Traverse as where it was found by Office that the Lessee of the King had committed Waste or had cessed for two years and that in such case the Lessee and Tenant in an Action brought against them may traverse the Offence therefore there was a Traverse at the common Law where the King was entitled by single matter of Record So upon Office finding Alienation without Licence there was a Traverse by the common Law See Traverse in such case in the Case of William de Herlington 43 Ass 28. See Br. Traverse of Office 54. Petition is by the common Law and Traverse by the Statute Frowick in his Reading See Stamf. Prerogat 60. That Traverse in case of Goods was at the common Law but for Lands by Office by 34 E. 3. 14. for before the remedy was by Petition See Co. 4. part the Sadler's Case 55 56. Traverse was at the common Law concerning Freehold and Inheritance but that was in special Cases scil when by the Office the Land is not in the King's hands nor the King by that is in possession but onely by the Office is entitled to an Action and cannot make a Seisure without Suit for there in a Scire facias brought by the King in the nature of such Action to which he is entitled the party may appear to the Scire facias and traverse the Office by the common Law. It was adjourned CLXX Scott and Scott 's Case Mich. 29 Eliz. In the King 's Bench. 1 Cro. 73. 3 Len. 225. 4 Len. 70. IN a Replevin betwixt Scott and Scott the Case was George Scott 2 H. 8. being Tenant in tail of certain lands suffered a common Recovery to the use of his last Will and 15 H. 8. made his Will by which he did declare That the Recoverors should make a good and favourable Lease to Hugh Scott his younger brother and 25 H. 8. they make a Lease of the same land to the said Hugh for 199 years according to the Will of the said George Scott rendring Rent 11 l. 6 s. 8 d. payable at the Feast of the Annunciation and S. Michael by equall portions and that to the Recoverors their Heirs and Assigns and there was a Covenant that after the death of the Recoverors the said Rent should be paid to Cestuy que use his Heirs and Assigns any thing in the said Indenture notwithstanding Proviso That if the Lesse make his Heir male his Assignee of that term that then he shall pay the said Rent to the Recoverors their Heirs and Assigns and the Lessee shall not pay the Rent to the Heirs of Cestuy que use upon which a Distress is taken and thereupon a Replevin brought Drew argued for the Plaintiff When a Condition is created the Law saith That it shall be taken and construed favourably in the behalf of him who is to perform it As if one be bounden to appropriate such a Church to such a house before such a day at his own costs and the Obligor grants a Pension out of the said Parsonage and afterwards appropriates the said Church it was holden that the Condition was well performed 3 H. 7. 4. A Lease for years upon condition to scowre the Ditches if the Lessee scowreth them once it is well enough And as to this word Proviso It is to see If here it be a word conditional In some Cases this word Pro makes a Condition as 45 E. 3. 8. Grant of a Ward pro bono servitio if the Grantee departeth out of his service the Grant is void So if an Annuity be granted unto a Physician pro consilio impendendo the same is a Condition 41 E. 3. 6. For the Grantor hath not means to compell the Grantee to give his Council but in some Cases this word Pro doth not make a Condition As if before the Statute of West 3. Land was given pro homagio suo there if the Homage be not done the Feoffor could not re-enter but he ought to distrain And I conceive that in our Case Proviso doth not make a Condition 7 H. 6. 44. A Feoffment in Fee with Warranty Proviso that the Feoffee shall not vouch So a Grant of a Rent-charge Proviso that the Grant shall not
be determined or not And he said That Leases which are of Record are to be recited in Patents of the King but not those which are not of Record for Leases on Record may be easily found but contrary of Leases in Fait but in our case all is helped by the Non obstante for the words of the Letters Patents are Non obstante That no office be thereof found misrecital or non-recital of the former Leases c. It hath been objected That because that the Law of the Land is That in Grants of the King all former Estates ought to be recited the Non obstante of the Queen shall not help it To that he said That where the Law makes for the Queen there the Queen for a particular respect may dispense with the Law. If the Queen be deceived by the not recital that makes the Letters Patents naught but if the Queen be not deceived by the not recital the same shall not hurt And it is clear That the Queen may dispense with a Statute Law although perhaps not with the common Law The Queen grants upon suggestion if the suggestion be false the Patent is void because the Queen is deceived in her Grant and if the suggestion rest in Articles and some of the Articles be false the Patent for that is void but if in the Patent such clause be That be the suggestion true or false the Patent shall be good If the King seised of a Manor to which an Advowson is appendant grant the Manor cum pertinentiiâ— the Advowson shall not pass But if the Grant be in tam amplis modo forma c. prout ipse Rex tenuit the Advowson shall pass And he said That the Office here is not necessary to determine the Lease but to enable the Queen to punish the Lessee for the continuance of his possession And if the conclusion of the Condition had been by way of re-entry for non-payment of the Rent and after the Rent is behind and afterwards the Queen accepts the Rent due after the Queen is not bounden by that but upon an Office found she shall avoid the Lease Drew Serjeant contrary and he said That here is a condition but not a limitation for here is the natural word of a Condition scil Proviso Some Cases put by Popham are Conditions and not limitations As a Lease for years Proviso that if the Lessee die within the term that then the Lease shall be void the same is a Condition And in many Cases many words less apt than these in our Case shall make a Condition As a Feoffment dummodo solvat c. And he said That without an Office the Lease is not void See 35 H. 6. 57. The King giveth to Religious use certain Lands ad effectum to find a certain number of Monks to hold in Frankalmoign the King in that case cannot have Cessavit for the Services are not certain but if it be found by Office that they have not their number or do not make their Prayers the King shall cease by Br. Tit. Offic. 4. And he said that this was often done in the time of Hing Henry the eighth Lands given Habend pro erectione Collegii Cardinalis Eborum c. Where the King is to have Lands but as a pledge as for an Alienation without licence Office ought to be found of such Alienation So of a Feoffment made to an Alien otherwise it is in case of necessity because the Freehold cannot be in abeyance Tenant of the King is attainted of Treason before 33 H. 8. the King shall haâ—â—â—â—e Land in point of common Escheat untill Office be found and afterwards by force of the Attainder So if the Tenant of a Subject be attainted of Treason before Office found the Land shall be in the Lord but after Office it shall be in the King 7 H. 4. If the King's Tenant dieth his Heir within age the King may seise the Body and grant it over without Office but not the Lands See for the same 5 E. 6. Br. Office 55. in the Case of Charles Brandon 35 E. 3. Villainage 22. The Villein of the King purchaseth Goods and Chattels the property of them is in the King before Office or seisure but in the case of lands he ought to seise If this had been the case of a common person the Lease should not be avoided without demand therefore neither in the Case of the King without Office For as the Lease it self was made by matter of Record so it ought to be avoided by matter of Record otherwise it shall not be taken void in Law notwithstanding that the words are That the lease shall be void By the Statute of 11 H. 7. Alienations and Discontinuances by Women are made void the same ought not to be holden altogether void as betwixt such Women and the Alienee but onely betwixt the Woman and the Heir the Statute of 1 Eliz. enacts That all Leases made by a Bishop above the term of twenty one years shall be void the same shall not be construed to be void but onely as to the Successor for it shall bind the Lessor himself as it was adjudged 5 Eliz. in the Case of the Bishop of Bath As unto the Office here in our case the same shall not enure to avoid the Lease but onely to enable the Queen to punish the party for the Mean profits after the breaking of the Condition But in our case nothing is due to the Queen for the Mean profits for we have shewed the payment of all the Rents and the Arrearages thereof after the breach of the Condition and before the Grant of the King and therefore this Office being for no use shall be void unless it had been found that the Land was of more yearly value than the Rent c. As in the case of common experience of Chantries the Lands shall not be intended to be of greater value than the Rent to be paid out of it if not that it be found by Office When the Queen hath after received the Rent and granted over the Reversion now the Forfeiture is purged not by way of conclusion but it amounts to as much as if the Queen had said That she would not take benefit of it 4 H. 6. Champernoun's Case The King by taking in Ward of the Heir of the Donee hath waved the Heir of the Donor See Plow in the Lord Barkley's Case 3 Eliz. 237. and F. N. B. 143. And here in our Case when the Queen grants over the Reversion here the whole use of an Office is gone for no Office shall be found for the benefit of a Subject and as to the Queen no benefit shall accrue unto her by such Office for if she by such Office shall be entituled to the possession she should avoid her own Grant of the Reversion for she ought to have as great an Estate by the breach of the Condition as she had at the time of the Condition And in this Case
the Case of making this Statute it was not to overthrow a foundation as it hath been said but it was rather a gratuity of the Subjects to the King for his bounty towards them for whereas by the Statute of Vses Vses were executed in possession so as the Subjects could not dispose of their Lands by their Wills as before the Vses Now by this Statute the King was pleased to give his Royal assent to an Act by which Lands might become devisable in respect of which the Subjects added to this Act the last clause to give him Wardship where it did not lie before by the Common Law and that as a recompence from the Subjects for the King's bounty and therefore it ought to be construed beneficially for the King. And to prevent covin and fraud was not the scope of this Statute For if three purchase Lands unto them and to the heirs of two of them now it is uncertain whose heirs shall inherit for non constat which of them shall survive and therefore no covin is averrable in such case and yet if the survivor of two to whom the Fee is limited dieth his heir within age such heir shall be in Ward So if such Lands be given to two and to the heirs of him of those two who shall first come to the Church of Paul Now it is uncertain which of them shall first come to the Church of Paul yet if he who first cometh to the Church of Paul dieth his heir within age he shall be in Ward which Cases prove that covin and fraud were not the cause of making this Statute but onely the thankfulness of the Subjects unto the King for his bounty as abovesaid for if this Act had not been made the Subjects should not have power to dispose of their Lands for the advancement of their children but all should descend So as now the King hath lost the Wardship and Primer seisin of two parts of the Lands of his Tenant and hath also lost the averment of covin which he had by the Common Law where Estates were made by the King's Tenant for advancement of their children In respect of which losses the Subjects gave unto the King Wardship in case where the Lands continue in jointure as to that which hath been said That this Statute shall not be taken by equity I conceive the contrary the words of the Statute are In every such case i. e. In every like case not onely where two or more persons hold jointly to them and the heirs of one of them but also in every the like Case as the Case now in question and in every Case where the life of him who hath the Freehold is the sole impediment quo minus the heir hath not the Land by descent in Demesne And it may be resembled unto the Statute of Marlbridge of Collusion which speaks of Leases for years Quas tradere voluerint ad terminum annorum and yet a Lease for life or Lease for years is within the said Statute for the Statute was made in restraint of an ill liberty that the Tenants had by the Common Law in prejudice of their Lords which see 4 E. 6. 53. Plow 59. And as to the word otherwise that may be construed for payment of his Legacies And as to equity enlarging the Statute speaks where many hold and to the heirs of one yet if two hold to them and the heirs of one of them the same is within the Statute And as to Equity restraining he puts this case Land is given to the Husband and Wife and the heirs of the body of the Wife who have issue the Wife dieth the issue within age he shall not be in Ward and yet he is within the Letter of the Statute but because that other matter That the Estate for life in the Husband is an impediment Quo minus he shall be in Ward It is a maxim of the Common Law That the father shall have the Wardship of the son and heir apparent therefore he shall not be within the meaning although he be within the Letter of the Statute So if Lands be given to my Villain and to another and to the heirs of my Villain who dieth seised his heir within age I seise the Villain and claim the remainder he shall not be in Ward and yet he is within the Letter of the Statute But I conceive in our Case the King shall have two Wards Simul semel the heir general of Wiseman and the issue in tail the heir general by the Common Law by reason that his father was the King's Tenant who disposed of his Lands for the advancement of his children and therefore the Queen shall have the third part in Ward And also the heir special shall be in Ward for that part of the Statute And it is no new thing to have two Wardships for one and the same Lands As 14 H. 8. of the heir of Cestuy quae use and also of the Feoffee and if the Tenant dieth seised having issue a daughter who is his heir the Lord seiseth the daughter and marrieth her and afterwards a son is born he shall have the Wardship also of him So of the heirs of the Disseisor and Disseisee and he said If Lands holden in chief be leased for life the remainder to A. in Fee A. dieth his heir within age he shall be in Ward and that by reason of these words in the Statute In every such case it is not the same Case but the like Case for if he who hath the Fee dieth so as the Freehold survives to the other now the Estate becomes as an Estate for life the remainder over It was adjourned CLXXXIV The Lord Howard and the Town of Walden 's Case 24 Eliz. In the Exchequer More Rep. 159. Post 162 163. BEtwixt the Lord Howard and the Town of Walden the Case was That the King made a Feoffment in Fee of Lands parcel of his Dutchy of Lancaster Tenend in feodi forma reddend inde sibi haeredibus suis aut illi cui de jure reddi debet 10 l. The question was How and of whom the Tenure should be It was argued by Plowden That it should be holden of the King as of his Dutchy he said The King is not bounden by the Statute of Quia emptores terrarum but here upon this Feoffment the Feoffee shall hold of the King as of his Dutchy All Grants of the King notwithstanding that they be of Lands yet they savour of the person of the King and his Prerogative being wrapt up in his person shall guide the disposition of the land and he said that this Tenure shall be implyed by reason and in respect of his person And the Statute of Quia emptores terrarum extends to Tenants onely Libere tenentes magnatum aliorum but the King is not Libere tenens alicujus magnat 32 H. 6. 21 22. The King hath an Advowson in the Right of his Dutchy to which
who 37 H. 8. levied a Fine of the said Manor without Proclamations to two strangers to the uses according to the said agreement and before any assurance made by the said Lord the said Lord was attainted of Treason by which all his Lands were forfeited to the King And afterwards the said Andrew Bainton made a suggestion to Queen Mary of all this matter and upon his humble Petition the said Queen by her Letters Patents reciting the said mischief c. Et praemissa considerans annuens Petitioni illius granted to him the Manor aforesaid and farther De ampliori gratia sua did release to the said Andrew Bainton all her right possession c. which came to her Ratione attincturae praed vel in manibus nostris existant vel existere deberent after which 5 Eliz. Andrew Bainton levied a Fine to the Plaintiff with Proclamations and died without issue and the Defendant as issue in tail entred Puckering Serjeant First it is to see if by the words of the Patent of Queen Mary viz. De ampliori gratia c. the Reversion in Fee which the Queen had shall pass or not Secondly Admitting that the Reversion doth not pass then if the Fine levied by Andrew Bainton 5 Eliz. to the Plaintiff the Reversion being in the Queen be a bar unto the issue in tail For as unto the first Fine levied 37 H. 8. which was without Proclamations the same shall not bind the issue in tail neither as to the right nor as to the Entry for it is not any discontinuance because the Reversion is in the King as of things which do not lie in discontinuance as Rent Common c. for such a Fine is a Fine at the Common Law and not within the Statute of 4 H. 7. and such Fine is void against the issue But if such a Fine without Proclamation be levied of a thing which lieth in discontinuance then such a Fine is not void but voidable by Formedon and therefore this Fine in the Case at Bar being levied without Proclamation of Lands entailed whereof the Reversion is in the King at the time of the Fine levied shall not bind the issue and by such Fine the Conusee hath nothing but a Fee determinable upon the life of Tenant in tail which Fee was forfeited to the Queen by the Attainder of the Lord Seymore and that the Queen moved of pity did restore the same to A. B. in recompence for the Indentures of themselves were not sufficient to raise any use See 1 Mariae Dyer 96. As to the first point it seems that nothing passed of the Reversion for the Grant hath reference to the words All her Right Possession c. which came to her ratione attincturae and all the residue of the Grant ought to have reference to that to the ratione attincturae which was the foundation of the whole Grant and here the intent of the Queen was not to any other intent but onely to restore A. B. to the said Manor or to his former Estate in it and nothing appears in the Letters Patents by which it may appear that the Queen was knowing of her Reversion which she had by descent and therefore the same cannot pass by general words If the Queen grants the Goods and Chattels of all those which have done any Trespass for which vitam amittere debent the Goods of him who is attainted of Treason shall not be forfeited to the Grantee by such general words 8 H. 4. 2. The King grants omnia Catalla Tenentium suorum qualitercunque damnatorum the same shall not extend to the Goods of him who is condemned of Treason See 22 Ass 49. So in our Case the Patent shall not serve to two intents but to a restitution of the Manor and then nothing passed by this Patent but the Fee determinable which was conveyed to the Lord Seymore and forfeited by his Attainder Then we are to see how after this grant the said A. B. is seised And he said That he shall be in of the said Fee determinable and not of the Estate tail against his own Fine and then if he be not seised by force of the Entail at the time of the Fine levied 5 Eliz. the same Fine cannot bind the tail But admit that at the time of the second Fine levied he was in of an Estate in tail yet the same Fine shall not bar his issue For first this Fine cannot make any discontinuance because that the Reversion in Fee is in the King which is not touched by the Fine See the Case of Sanders where A. makes a Lease to begin at a day to come and afterwards levies a Fine to a stranger with Proclamations the five years pass and afterwards at the day of the Commencement of the Lease the Lessee enters his entry is lawfull and he shall not be bound by the non-claim And so it was adjudged 21 Eliz between Sanders and Starky After the making of the Statute of 4 H. 7. of Fines it was much doubted if the issues of common Tenants in tail should be bound by a Fine with Proclamation forasmuch as upon the death of their Ancestours they were as new purchasors per formam doni and therefore it was provided by the Statute of 32 H. 8. that the said Statute of 4 H. 7. should extend to such common Entails but there was no doubt of the Estate tail of the Gift of the King and see betwixt Jackson and Darcy Mich. 15 and 16 Elizab. Rot. 1747. in a Partitione facienda the Case was Tenant in tail the Remainder to the King after the Statute of 32 H. 8. levied a Fine with Proclamations and adjudged that that should bind the issues and the Act of 32 H. 8. doth not extend but where the Reversion is in the King but no mention is there of a Remainder because the words of the said Act are general of all Tenants in tail the makers of the said Act perceiving that it might be a doubt that the generality of the said words might exclude Estates tail of the Gift of the King they have restrained the words in a special manner as appeareth by the last words of the same Act Nor to any Fines heretofore levied or hereafter to be levied by any person or persons of any Manors c. before the levying of the said Fine to any of his or their Ancestors in tail by Letters Patents or Act of Parliament the Reversion whereof at the time of the levying of such Fine was in the King and so such Estates are excepted and that in such Cases where such Fines are levied they shall be of such force as they should have been if the said Act had not been made and therefore he conceived it appeared at the said Parliament That such Estate tails of the Gift of the King were not bound bâ— 4 H. 7. for otherwise that Proviso or Exception had been frivolous Walmsley Serjeant to the contrary and he agreed That the
in which was parcel demised and demiseable according to the custome of the said Manor by Copy in Fee whereof Langley was a Copiholder in Fee c. and the said Earl so seised enfeoffed divers persons of the said Manor unto the use of himself for life and afterwards to the use of the Lord Lumley and Elizabeth his wife daughter of the said Earl and the heirs of their two bodies begotten who made a Lease of the said Customary lands by Indenture unto the Plaintiff for 100 years and the question was If by this Lease the lands be so severed from the Manor that the Copihold is extinct Walmesly took exception to the pleading for that Langley pleads That the custome within the Manor is That if any Copiholder seised of Customary lands of the said Manor dieth thereof seised having many sons That the youngest son shall inherit and he sheweth That the Lord of the said Manor granted to his father and his mother the said customary lands by Copy to have to his said father and mother and the heirs of his father c. And that his father died and that his mother survived him and died and he as youngest son according to the custome entred and he said That this custome set forth by the Defendant doth not maintain his entry For the custome intendeth but a general and immediate descent upon a Copy made unto a man and to his heirs but such is not the descent here for the wife surviveth during whose life the heir cannot enter nor is there here such Estate in the father of the Defendant unto whom the custome set forth in the Avowry can extend For the custome is alledged Where a Copyholder hath a Copyhold Estate to him and his heirs And here the Title of the Defendant is That a customary Estate was granted to the father and the mother and the heirs of the father so as this Estate is not within the Letter of the custome And to that purpose he cited the Case of Sir John Savage Sir John Savage's Case ante 109. late adjudged Where one entitled himself to a Copihold in this manner That within the Manor there is such a custome that if one taketh to wife any customary Tenant of the said Manor in Fee and hath issue by her he if he over-live such wife should be Tenant by the Curtesie and the Case in truth was That he married a woman who at the time of the marriage had not any Copihold but afterwards during the coverture a Copihold descended to her In that Case it was holden That no Tenancy by the Curtesie did accrue by that custome which did not extend but where the wife is a Copiholder at the marriage and a custome shall be in construction taken strictly and shall not be extended beyond the words of it And as to the matter in Law he said That by this Lease the custome was gone and then by consequence the customary Tenancy as to that land is determined for the Estate of the Copiholder is Secundum consuetudinem Manerii ad voluntatem Dom. And now by the Lease Langley cannot hold Secundum consuetudinem Manerii for now the services reserved upon the Copy and the advantages of Waste and other forfeitures are extinct so that if notwithstanding the Lease the customary interest should endure then such a Copiholder should hold this land discharged of all services c. in better Estate than any Freeholder at the Common Law and because the services in Law are discharge and cannot be recovered for that cause the customary interest is determined For the Case is 7 E. 4. 19. by Danby That the Copiholder shall have remedy against his Lord if he put him out for he payes a Fine when he enters but here during this Lease no Fine can be paid upon any descent c. and the Fine is the cause for which the Copiholder shall maintain his possession against the Lord But here no descent or surrender can be presented for there is not any Tenant who can do it See 21 E. 4. 80. by Brian As long as the Copiholder payeth unto the Lord the customs and services If the Lord putteth him out he shall have an Action of Trespass 42 E. 3. 25. If the Copiholder will not do his services the Lord shall seize the lands Dyer 100. 1 Cro. 35. And he resembled this Case to the case where the King grants lands probis hominibus de D. the same is a good Grant and that onely in respect of the Rent and for the reason of that it is a good Corporation But if the King releaseth the Rent the Corporation is dissolved and the Grant is become void Fenner Serjeant contrary and he said That by this Lease being the act of the Lord himself the customary interest is not determined c. And the whole Court was of clear opinion with Fenner That the Copihold did remain for otherwise by such practices of the Lords all the Copiholders in England might be defeated and if any prejudice be grown to the Lord by this act it is of his own doing and against his own act he shall not be relieved And by Periam Iustice The Lord by his act i. e. the making of the Lease hath destroyed his Seignory and lost the services as to this land And Windham Iustice said That the Lord himself had destroyed the custome as to the services but not as to the customary interest of the Tenant but the Lord Anderson was of opinion That the Rents and services do remain and if the Copiholder after such Lease committeth Waste that it is a forfeiture to the Lord and that will fall in evidence upon a trial although such Waste cannot be found by an ordinary presentment and the same Law which alloweth the Copiholder his Copihold interest against this Lease will allow unto the Lord his Rents and services and he said That the Lord shall have the Rents and services and not the Lessee Quod mirum against his own Lease See 33 Eliz. between Murrel and Smith now reported by the Lord Coke in his 4 Report fol. 20. CCLVIII. Russel and Broker 's Case Trin. 29 Eliz. In the Common Pleas. RUssel brought Trespass against Broker 3 Len. 218. for cutting down of four Oakes The Defendant pleaded That the place where c. and that he is seised of a Messuage in D. And that he and all those whose Estate he hath c. Habere consuerunt rationabile estoverium suum for fuel ad libitum suum capiendum in boscis subboscis arboribus ibidem crescentibus and that in quolibet tempore anni but in fawning time The Plaintiff by Replication said That the place where is within the Forrest of c. and that the Defendant and all those whose Estate c. Habere consueverunt rationabile estoverium suum de boscis c. per liberationem Forrestarii vel ejus Deputati prout boscus pati potest non ad exigentiam
petentis And upon that Replication the Defendant did demur in Law and the opinion of the whole Court was That Iudgment should be given against the Plaintiff for if he should oust the Defendant of his prescription by the Law of the Forrest he ought to have pleaded the Law of the Forrest in such case viz. Lex Forrestae est c. for the Law of the Forrest is not the common Law of the Land and we are not bound to take notice of it but it ought to be pleaded or otherwise the Plaintiff ought to have traversed the prescription of the Defendant for here are two prescriptions one pleaded by the Defendant by way of Bar the other set forth by the Plaintiff in his Replication without any traverse of that with is alledged in the Bar which cannot be good but if the Plaintiff had shewed in his Replication Lex Forrestae talis est c. then the prescription of the Defendant had been answered without any more for none can prescribe against a Statute Exception was taken to the Bar because the Defendant had justified the cutting down of Oaks without alledging that there was not any underwood but the Exception was not allowed for he hath choice ad libitum suum Another Exception was taken because he hath not shewed that at the time of the cutting it was not fawning time Poph. 158. 2 Cro. 637 679. for at the fawning time his prescription did not extend to it and that was holden a good material exception but because the Plaintiff had replied and upon this Replication the Defendant demurred the Court would not resort to the Bar but gave Iudgment upon the Replication against the Plaintiff CCLIX Mich. 29 Eliz. In the Common-Pleas A Black-Smith of South-Mims in the County of Middlesex took a Bond of another Black-Smith of the same Town that he should not exercise his Trade or Art of a Black-Smith within the same Town nor within a certain precinct of it and upon that Obligation the Obligee brought an Action of Debt in the Common-Pleas depending which the Obligor complained to the Iustices of Peace of the said County upon the matter against the Obligee upon which the matter being found by examination the Iustices committed the Obligee to prison and now upon the whole matter Puckering Serjeant prayed a Habeas Corpus for the said Obligee to the Sheriff of Middlesex and it was granted and Fleetwood Recorder of London being at the Bar the Court told him openly of this matter That by the Laws Iustices of Peace have not Conusance of such offences nor could meddle with them for their power is limited by their commission and the Statutes and the Recorder did much relye upon the opinion of Hull 2 H. 5. 5. But by the clear opinion of the whole Court although this Court being a high Court Owen 143. 2 Cro. 596. might punish such offences appearing before them on Record yet it did not follow That the Iustices of Peace might so do But as to the Bond the Court was clear of opinion that it was void because it was against Law. Ante 34. CCLX Trin. 29 Eliz. In the Common Pleas. A Justicies issued forth to the Sheriff of H. for the Debt of 40 l. and the Plea was determined before the Vnder-Sheriff in the absence of the Sheriff and it was now moved by Puckering Serjeant If a Writ of Error or a Writ of false Iudgment did lie in that Case And first the opinion of the Iustices was That the Sheriff himself in his person ought to hold Plea of a Justicies and if he maketh a Precept or Deputation to another the same is meerly void 34 H. 6. 48. And see the said Case abridged Fitz. Bar. 161. and it was said That a Justicies is not an Original Writ but a Commission to the Sheriff to hold Plea ultra 40 s. and upon a Iudgment given upon a Justicies a Writ of false Iudgment lieth and not a Writ of Error See for that 7 E. 4. 23. And it was the opinion of Anderson chief Iustice That such Iudgment is utterly void and Coram non Judice CCLXI Trin. 29 Eliz. In the Common-Pleas NOTE by Anderson chief Iustice That if Cestuy que use 3 Len. 196. 4 Inst 85. Kel 41. after the Statute of 1 R. 3. leaseth for years and afterwards the Feoffees release unto the Lessee and his heirs having notice of the Vse that this release is unto the first Vse But where the Feffees are disseised and they release unto the Disseisor although they have notice of the Vse the same is to the use of the Disseisor and that was the Case of the Lord Compton and that no Subpoena lieth against such a Disseisor See 11 E. 4. 8. CCLXII Hamper 's Case Hill. 31 Eliz. In the King's-Bench HAmper was indicted upon the Statute of 5 Eliz. of Perjury 1 Cr. 147. 3 Len. 230. and in the body of the Indictment The Record was That he Falsa deceptive deposuit whereas the Statute is Wilfully and although in the perclose of the Indictment the conclusion is Et sic commisit voluntarium perjurium Yet the opinion of the Court was that the same doth not help the matter and for that cause the party was discharged For contra formam Statuti will not help the matter nor supply it and yet it was moved and urged That contra formam Statuti would help it and it was holden in this Case That if a witness doth depose falsly but the Iury doth not give credit to it nor give their Verdict against his oath although the party grieved cannot sue him yet he may be punished at the King's suit CCLXIII Moulton 's Case Hill. 31 Eliz. In the King ' s-Bench IT was moved by Coke That one Robert Moulton Tenant in tail 1 Cro. 151. having issue two sons Robert and John died seised and that Robert his son and heir levied a Fine thereof and afterwards levied another Fine and died without issue and John brought two several Writs of Error to reverse both the Fines and the Tenant to the Writ of Error brought upon the first Fine pleaded the second Fine in Bar of it and in Bar upon a Writ of Error brought upon the second Fine he pleaded the first Fine and the Court advised him to plead That the Fine pleaded in Bar was erroneous 7 H. 4. 107. where a man is to annul an Outlawry his person shall not be disabled by any other Outlawry CCLXIV Broccus 's Case Trin. 30 Eliz. In the Common-Pleas BRoccus Lord of a Manor covenanted with his Copiholder 1 Roll. 15. Pordage versus Cole 20 Car. 2. B. R. to assure to him and his heirs the Freehold and Inheritance of the Copihold and the Copiholder in consideration of the same performed did covenant to pay such a sum And it was the opinion of the whole Court That the Copiholder is not tied to pay the money before the Assurance made and the
upon the Statute of 5 R. 2. against J. and E. J. died pendant the Writ and E. pleaded in Bar and the Plaintiff did reply and conclude and so was he seised untill the said E. Simul cum dicto J. named in the Writ entred upon the Plaintiff c. But the opinion of the whole Court was clear to the contrary for here in the case at Bar Drake by his several issue which he hath joyned with the Plaintiff upon Not guilty is severed from the other five Defendants and then when they plead in Bar The Plaintiff ought to reply to them without meddling with Drake who upon his several Plea and issue joyned upon it is a stranger to them as if the said five had been the onely Defendants But if he had not replyed to Drake as if Drake had made default or had died after the Writ brought as in the case before cited of 28 E. 4. there he ought to have replyed as it is objected So in an Ejectione firmae of twenty acres The Defendant as to ten acres pleads Not guilty upon which they are at issue and the Plaintiff replies and says as to the other ten acres and so was he possessed untill by the Defendant of the said ten acres he was ejected this is good without speaking of the other ten acres upon which the general issue is joyned And the Court was ready to have given Iudgment for the Plaintiff but they looked upon the Record and seeing that one issue in this Action was to be tryed between the Plaintiff and the said Drake And although the Plaintiff offered to release his damages and the issue joyned and to have Iudgment against the five Defendants who had demurred Vid. antea 41. yet the Court was clear of opinion that no Iudgment should be given upon the said Demurrer untill the said issue was tryed for the Action is an Ejectione firmae in which Case the possession of the land is to be recovered and it may be for any thing that appeareth That Drake who hath pleaded the general issue hath Title to the land c. But if this Action had been an Action of Trespass there in such case Ut supra upon release of damages and the issue joyned the Plaintiff should have Iudgment presently CCLI French 's Case Mich. 26 Eliz. In the King 's Bench. IT was presented before the Coroner That John French was Felo de se and that certain goods of the said John French were in the possession of J. S. and this presentment was certified into the King's Bench upon which Process issued forth against the said J. S. and continued untill he was Outlawed And now came J. S. and cast in his Writ of Error to reverse the said Outlawry and assigned for Error because that in the presentment upon which he was Outlawed there is not any addition given to the said J. S. And at the first it was doubted If upon that presentment Process of Outlawry did lye and Ive one of the chief Clerks of the Crown-Office said to the Court That such Process in such case did lye and that he could shew five hundred precedents to that purpose Another matter was moved upon the Statute of 1 H. 5. 5. of Additions If this Outlawry by the Statute aforesaid ought to be reversed by default of Addition for as much as the said Statute speaks onely of Outlawries upon original Writs in personal Actions Appeals and Indictments But it was agreed by the whole Court That as to this purpose the presentment should be accounted in Law as an Indictment and afterwards the Outlawry against French was reversed CCLII Mich. 26 Eliz. In the King 's Bench. A Lease for thirty years was made by Husband and Wife if they so long should live and if they die c. That the land should remain to A. their son during the term aforesaid And it was holden by Wray Iustice That if the Husband and Wife do die within the term that the son should have the land De novo for thirty years But Gawdy was of opinion that he shall have it for so many years which after their death should be expired CCLIII Cooper 's Case Mich. 26 Eliz. In the King 's Bench. IN an Ejectionefirmae The Case was That the Husband and Wife had right to enter into certain lands in the right of the wife and a Deed of Lease for years is written in the name of the Husband and Wife to one A. for to try the Title and also a Letter of Attorney to B. to enter into the land and to deliver the said Deed of Lease to the said A. in the name of the Husband and Wife 3 Cro. 118. 2 Cro. 617. Yel and as well the Letter of Attorney as the said Deed of Lease are sealed by the said Husband and Wife with their seals and entry and delivery is made accordingly the said A. enters and upon Ejectment brings an Ejectione firmae and the whole matter aforesaid was found by special Verdict and the Plaintiff had Iudgment to recover for the special matter found by Verdict i. e. the Deed of Lease and the Letter of Attorney do maintain the Declaration well enough and here is a Lease made by Husband and Wife according to that the Plaintiff hath declared CCLIV Mich. 29 Eliz. In the King's-Bench IN an Action of Trespass for breaking of the Plaintiff's Close Owen 114. 1 Cro. 876. 2 Cro. 195. 229. Godb. 123. and killing of eighteen Conies there the Defendant as to all the Trespass but to the killing of the Conies pleaded Not guilty and as to the killing of the said Conies He said that the place Where is a Heath in which he hath common of pasture and that he found the Conies eating the grass there and he killed them and carried them away as it was lawfull for him to do Cowper Although Conies be Ferae naturae yet when they are in in-grounds they are reduced to such a property that if they be killed or carried away I shall have an Action of trespass Vid. 43 E. 3. 24. And if a Deer be hunted by the Plaintiff in a Forest and afterwards in hunting it be driven out of the Forest and the Forrester doth follow the chase and the Plaintiff kill the Deer in his own grounds yet the Forrester may enter into the land of the Plaintiff and re-take the Deer 12 H. 8. 9. And although the Defendant hath common in the soil yet he cannot meddle with the wood there nor with the land nor with the grass otherwise than with the feeding of his cattel for he hath but a faint interest And if he who hath the Freehold in the land bringeth an Action of trespass against such a commoner for entring into his land and the Defendant plead Not guilty he cannot give in evidence that he hath common there And it hath been late adjudged That where commoners prescribe Godb. 123. That the Lord hath used to put in
such a pasture but so many beasts that such a prescription is a void prescription It was argued on the other side That the owner of the soil hath not the true property of the Conies in him but a kind of property And see F.N. B. 86 and 87. Quare clausum fregit 20 Cuniculos cepit Against a stranger he may have an Action but not against the commoner because he hath wrong in his common by the feeding of the Conies there for although he hath not an interest in the soil yet he hath an interest in the profits of it and a commoner may distrain the beasts of him who hath not right of common for damage-feasance as the books are 4 H. 7. 3. 15 H. 7. 15. and there the commoner hath not any remedy if he cannot enter and kill the Conies for he cannot take them damage-feasance nor can impound them for no Replevin lyeth of them if the owner of the soil ploweth the lands yet the commoner may put in his cattel claiming his common and he may well justifie the same because the wrong beginneth in the owner of the soil At another day the Case was moved again and then it was argued by Coke and he said The point is Whether a commoner having common of pasture may kill the Conies which are upon the ground and he argued That he might not And first he said It is to be considered what interest he who hath the Freehold may have in such things as are Ferae naturae and then what authority a commoner hath in the ground in which he hath common As to the first point he said That although such beasts are Ferae naturae yet they are reduced to such a property when they are in my ground by reason of my possession which I then have of them that I may have an Action of trespass against him who taketh them away as in the book in 42 E. 3. If one hath Deer in his Park and another taketh them away he may have an Action of Trespass for the taking of them See 12 H. 8. If a Keeper or Forrester follow a Buck which is chase out of the Park or Forrest although he who hunteth him killeth the Buck in his own ground yet the Keeper or Forrester may enter into his ground and seize the Deer because the property and possession of the Deer is yet in them by their persuit In 7 H. 6. It is holden That if a wild beast doth go out of the Park the owner of the soil hath lost his property in it but upon the said book it may be well collected that whilest it remains in the Parke That the owner of the Park hath property in it for 18 E. 4. 14. It is doubted whether a man can have property in such things which are Ferae naturae But in 10 H. 7. 6. it is holden That an action of Accompt lyeth for things which are Ferae naturae and see 14 H. 8. 1. In the Bishop of London's Case and 22 H. 6. 59. That as long as such things are in the parties ground they are in his possession and he hath a property in them and in an Action brought for them The Writ shall be Quare damas suas cepit by Newton And see in the Register fol. 102. where an Action was brought Quare ducent Cuniculos suos pretii c. cepit It hath been objected on the other side That the Defendant hath common there To that I answer Admit he hath common yet he hath not an interest in the soil for he cannot meddle with the wood grass or other profit arising of the soil but the interest which the commoner hath is onely the feeding of the grass with â—he mouths of his cattel and if he who hath the Freehold in the ground doth bring an Action against the commoner for entring into his land If the Defendant pleads Not guilty he cannot give evidence that he hath common there for such evidence will not maintain the issue See 22 Ass A commoner cannot take in the cattel of a stranger to agist upon the common and therewith agreeth the book of 12 H. 8. and so it hath been adjudged in this Court. Godfrey contrary And he argued That it is lawfull for the commoner to kill the Conies feeding in the common And he agreed all the cases which were put by Coke and farther he said That the owner of the ground had not an absolute but a kind of a qualified property in the Conies and therefore see the Book of 3 H. 6. and F.N. B. If a Writ of Trespass be brought Quare Cuniculas suas cepit the Writ shall abate and yet he hath a kind of property or a possession rather in them I grant that against a stranger the Plaintiff might have his Action for killing of his Conies but not against the commoner because the commoner hath a wrong done unto him by the Conies eating of his common and therefore he may kill them and although the commoner may not meddle with the land because he hath not an interest in it yet in some cases he may meddle with the profits of it and he may distrain the cattel of a stranger there damage-feasance as the Book is in 15 H. 7. I grant that it is not lawfull for Tenant for life to kill the Conies of him who hath free-warren in the land For if a man bringeth an Action of Trespass Quare warrenam suam intravit Cuniculos suos cepit It is no Plea for the Defendant to say That it is his Freehold See 43. E. 3. accordingly In L. 5 E. 4. In Trespass Quare clausum fregit Cuniculos suos cepit The Defendant said That the Plaintiff made a Lease at will to J. S. of the land and that he as servant to the said J. S. did kill the Conies there and it was holden a good Plea and yet it is there said That by the grant of the land the Conies do not pass but the reason of the book might be as I conceive because the feeding on the land with the Conies is to his damage and therefore that he might justifie the killing of them and so are the Books of 2 H. 7. and 4 E. 4. If I have common of pasture in lands and the Tenant ploweth up the land I shall have an action upon the Case in the nature of a Quod permittat And in 9 E. 4. If one hath lands adjoyning to my land and levyeth a Nusance I may enter upon the land and abate the Nusance So if a man taketh my goods and carrieth them unto his own lands I may enter therein and seize my goods So if a Tenant of the Freehold plows the land and soweth it with corn the commoner may put in his cattel and therewith eat the corn growing upon the land So if a man do falsly imprison me and put me in his house I may justifie the breaking open of his house to get forth In 21 H.